By Juan A. Lozano
HOUSTON — Houston will provide health care and life insurance benefits to legally married same-sex spouses of city employees, officials announced Wednesday.
Eligible couples must have been married in other states as Texas bans same sex unions.
The announcement flouts an opinion issued in April by Texas Attorney General Greg Abbott that said local governments and school districts that offer same-sex domestic partner benefits are violating the state constitution. Houston’s decision also came after the Texas National Guard in September refused a Pentagon directive to process applications for military benefits for same-sex couples, citing the state law that does not recognize gay marriage.
Houston Mayor Annise Parker, who is openly gay, said the decision is based on a city legal department interpretation of recent U.S. Supreme Court decisions and other relevant case law from the around the country. A Supreme Court ruling in June tossed out part of the federal Defense of Marriage Act, clearing the way for legally married same-sex couples to receive federal tax, health and pension benefits.
Parker said Houston is following steps that have been taken by several federal agencies, including the Internal Revenue Service, which announced in August that all legally married same-sex couples will be recognized as married for federal tax purposes even if those couples reside in states that do not recognize that marriage.
“Based on the right to equal protection under the law, it is unconstitutional for the city to continue to deny benefits to the same-sex spouses of our employees who are legally married,” Parker said. “This change is not only the legal thing to do, it is the right, just and fair thing to do.”
The city had previously denied same-sex benefits based on a 2001 voter-approved city charter amendment. But the amendment says benefits can be given to “legal spouses” of employees.
The new city policy does not extend to domestic partners. However, policies in Austin, El Paso, Fort Worth and San Antonio do offer some benefits to domestic partners, which were the subject of Abbott’s opinion. Pflugerville, outside Austin, earlier this year became the state’s first school district to extend similar benefits.
Abbott found that the constitution “prohibits political subdivisions from creating a legal status of domestic partnership and recognizing that status by offering public benefits based upon it.” He said city governments and school districts constitute political subdivisions.
Janice Evans, a spokeswoman for Parker, said city leaders at this point are not bracing for any possible legal action.
“I guess we’ll discuss that if and when it happens,” she said
Thomas Oldham, a professor at the University of Houston Law Center, said unlike domestic partner policies in other Texas cities, Houston’s policy is more vulnerable to legal challenge because of the state’s constitutional amendment that defines marriage as between a man and a woman.
What Houston has done “would be more squarely in violation of the constitutional provision,” Oldham said.