Could Texas cities and school districts offer domestic partnership benefits to employees?

Plain-English summary

Senator Dan Patrick, then chair of the Texas Senate Education Committee, asked the Attorney General whether article I, section 32 of the Texas Constitution prevented Texas cities, counties, and school districts from recognizing domestic partnerships by extending employee benefits, such as insurance, that had previously gone only to married couples. Section 32(b) provides that "[t]his state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."

The Attorney General first established that cities, counties, and independent school districts are political subdivisions, so section 32 applied to them. He then split the question in two: had these subdivisions created or recognized a "legal status," and if so, was that status "similar to marriage." On the first point, the opinion observed that Texas law does not establish or recognize domestic partnerships of the kind described, so the partnerships were entirely the creation of the subdivisions themselves. By setting eligibility criteria, requiring sworn affidavits, and demanding supporting documentation before conferring benefits, the subdivisions had done more than hand out health coverage; they had built a formal legal process for attaining a status. The opinion compared this to Ross v. Goldstein, where a Texas court of appeals refused to craft a "marriage-like relationship" remedy because section 32 forecloses it, and reasoned that the subdivisions had created an even more formal status than the equitable remedy the court rejected.

On the second point, the opinion applied the ordinary meaning of "similar" (having a likeness or resemblance and characteristics in common) and noted that the subdivisions' domestic partnership criteria mirrored marriage requirements: applicants had to attest that prior undissolved marriages, consanguinity, and age would not bar them from marrying under state law. Because the status resembled marriage in those respects, a court would likely find it "similar to marriage" and therefore barred by section 32. The opinion addressed and set aside a floor statement by the amendment's House author suggesting the provision did not stop health benefits for same-sex partners, explaining that the subdivisions had gone beyond providing benefits and had created and recognized a marriage-like status. The opinion closed by noting that the U.S. Supreme Court had granted certiorari in Windsor and Perry, and that depending on those decisions, the Court's ruling "could call into question the enforceability of article I, section 32 under the United States Constitution."

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, the opinion itself flagged that the pending U.S. Supreme Court cases (Windsor and Perry) could affect the enforceability of article I, section 32 under the federal Constitution. Federal constitutional law in this area changed substantially after 2013. This page describes what the 2013 opinion concluded under Texas law as it then stood; it is not a statement of current law.

What the opinion meant for those who asked

Cities, counties, and school districts (as the opinion described it): The opinion told these subdivisions that a court would likely find article I, section 32 barred them from creating a formal domestic partnership legal status, defined by eligibility criteria and affidavits, and then recognizing that status by conferring benefits based on it. It treated such programs as creating and recognizing a status "similar to marriage."

Public employees and their partners (as the opinion described it): The opinion described the partner benefits in question as resting on a domestic partnership status the AG viewed as constitutionally barred. It did not decide whether a subdivision could provide health benefits to an employee's partner without building a marriage-like status around them; that narrower question was left open.

Government attorneys (as the opinion described it): The opinion laid out the two-step analysis (was a legal status created or recognized; was it similar to marriage) and the textualist reading of section 32 it applied, and it expressly reserved the question of whether benefits standing alone, untethered to a formal status, would violate the provision.

Common questions

Did this opinion ban domestic partner health benefits for public employees in Texas?
Not in those exact terms. The opinion concluded that creating a formal domestic partnership legal status, with eligibility criteria and affidavits, and then granting benefits based on it, was barred because the status was similar to marriage. It said it did not need to decide whether providing health benefits "standing alone" would violate section 32, because the subdivisions had gone beyond that.

What part of the Texas Constitution was at issue?
Article I, section 32(b), which states that the state or a political subdivision "may not create or recognize any legal status identical or similar to marriage." The opinion read that text as clear and controlling.

Why did the AG say the domestic partnership status was "similar to marriage"?
Because the subdivisions used criteria usually associated with marriage. Applicants had to attest that prior undissolved marriages, consanguinity, and age would not prevent them from marrying under state law, so the status resembled marriage and shared characteristics with it.

Didn't the amendment's author say it would not stop benefits for same-sex partners?
The opinion quoted Representative Chisum's floor statement to that effect, but concluded it only addressed whether a subdivision may provide health benefits, not whether it may create a marriage-like status. The opinion held the subdivisions had created and recognized such a status, which section 32 prohibits.

Is this opinion still good law?
This page does not assert that. The opinion itself noted that pending U.S. Supreme Court cases could call the enforceability of section 32 into question under the federal Constitution, and the law in this area changed after 2013. See the currency note above and verify current law.

Background and statutory framework

The opinion turned on article I, section 32 of the Texas Constitution, the marriage amendment adopted in 2005, and specifically subsection 32(b)'s bar on a political subdivision creating or recognizing "any legal status identical or similar to marriage." The opinion situated this against article XI, section 5(a), which prohibits local ordinances inconsistent with the state Constitution or general laws.

For its method, the opinion relied on In re Allcat Claims Serv. (courts ascertain and give effect to the plain language of a constitutional provision) and City of Rockwall v. Hughes (it is inappropriate to resort to rules of construction or extrinsic aids when the text is clear). It drew on Ross v. Goldstein, where the Houston Court of Appeals called section 32(b)'s prohibition "unambiguous, clear, and controlling" and refused to create a marriage-like equitable remedy. The opinion used Travis Cent. Appraisal Dist. v. Norman to confirm that cities, counties, and school districts are political subdivisions, and Prudholm v. State and Traxler v. Entergy Gulf States for the ordinary meaning of "similar" and the practice of consulting dictionaries for common meaning. It cited Black's Law Dictionary's definition of "domestic partnership" and a 1978 AG opinion (H-1129).

The opinion noted that the Business Organizations Code uses "domestic partnership" only in an unrelated business sense (Tex. Bus. Orgs. Code Ann. § 1.002), and pointed to Family Code provisions on marriage eligibility (Tex. Fam. Code Ann. §§ 2.004(b)(5)-(6), .009(b), .101) to show how the subdivisions' criteria tracked marriage requirements. It referenced the House floor debate on Tex. H.R.J. Res. 6 (79th Leg., R.S., Apr. 25, 2005) and the then-pending federal cases Windsor v. United States and Perry v. Brown (Hollingsworth v. Perry).

Citations

Cases:

• In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 466 (Tex. 2011)
• City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008)
• Ross v. Goldstein, 203 S.W.3d 508, 514 (Tex. App.-Houston [14th Dist.] 2006, no pet.)
• Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 58 (Tex. 2011)
• Prudholm v. State, 333 S.W.3d 590, 594 (Tex. Crim. App. 2011)
• Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex. 2012)
• Windsor v. United States, 699 F.3d 169, 187-88 (2d Cir. 2012), cert. granted, 81 U.S.L.W. 3333 (U.S. Dec. 11, 2012) (No. 12-307)
• Perry v. Brown, 671 F.3d 1052, 1067-68 (9th Cir. 2012), cert. granted, Hollingsworth v. Perry, 81 U.S.L.W. 3075 (U.S. Dec. 7, 2012) (No. 12-144)

Statutes and constitutional provisions:

• Tex. Const. art. I, § 32(b); art. I, § 32; art. XI, § 5(a)
• Tex. Bus. Orgs. Code Ann. § 1.002(17), (63)(B), (67) (West 2012)
• Tex. Fam. Code Ann. §§ 2.004(b)(5)-(6), .009(b), .101 (West 2006 & Supp. 2012)

Other authority:

• Tex. Att'y Gen. Op. No. H-1129 (1978)
• Black's Law Dictionary 558 (9th ed. 2009)
• The Random House Dictionary of the English Language 1782 (2d ed. 1987)
• Debate on Tex. H.R.J. Res. 6 on the Floor of the House, 79th Leg., R.S. (Apr. 25, 2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1003
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1003.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

April 29, 2013

The Honorable Dan Patrick Opinion No. GA-1003
Chair, Committee on Education
Texas State Senate Re: Whether the Texas Constitution prevents
Post Office Box 12068 local political subdivisions from recognizing
Austin, Texas 78711-2068 domestic partnerships by granting benefits
previously only available to married couples
(RQ-1097-GA)

Dear Senator Patrick:

You inquire about certain Texas cities, counties, and school districts that "offer some form of insurance benefits to domestic partnerships" as part of their employee benefits programs.[1] You ask whether article I, section 32 of the Texas Constitution "preclude[s] political subdivisions of Texas from providing so-called domestic partnership benefits to their employees." Request Letter at 2. Specifically, you inquire about article I, subsection 32(b), which provides that "[t]his state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage." TEX. CONST. art. I, § 32(b).

The purpose of an Attorney General opinion is to attempt to determine how Texas courts would rule on the legal question presented by the opinion request. As the Texas Supreme Court has explained, when courts interpret a constitutional provision, the principal goal is to "ascertain and give effect to the plain . . . language of the framers of a constitutional amendment and of the people who adopted it." In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 466 (Tex. 2011). Courts must "presume the language of the Constitution was carefully selected, interpret words as they are generally understood, and rely heavily on the literal text." Id. Finally, the Texas Supreme Court has instructed that "it is inappropriate to resort to rules of construction or extrinsic aids" when the constitutional provision at issue is clear and unambiguous. City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008).

The Houston Court of Appeals has ruled that article I, subsection 32(b)'s prohibition on the creation or recognition of a legal status similar to marriage is "unambiguous, clear, and controlling." Ross v. Goldstein, 203 S.W.3d 508, 514 (Tex. App.-Houston [14th Dist.] 2006, no pet.). That being the case, the constitutional text itself is controlling and it would be "inappropriate" to consult outside authorities or rules of construction.

To answer your question, we must first determine whether article I, subsection 32(b) applies to Texas cities, counties, and school districts. By its plain language, article I, subsection 32(b) applies to "[t]his state or a political subdivision of this state." TEX. CONST. art. I, § 32(b). The entities you describe-cities, counties and independent school districts-are all political subdivisions as a matter of Texas law. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 58 (Tex. 2011). Thus, the plain text of the Texas Constitution makes the entities about which you inquire subject to article I, section 32.

Having first concluded that article I, section 32 applies to cities, counties, and school districts, we now address whether the political subdivisions about which you ask have violated the constitution by creating or recognizing a "legal status identical or similar to marriage." See TEX. CONST. art. XI, § 5(a) (no local entities' ordinances "shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State"). On this question, we divide our analysis into two parts. First, we must determine whether these political subdivisions have created or recognized a "legal status." If they have, we must then consider whether that legal status is "identical or similar to marriage."

The question whether the political subdivisions have created or recognized a "legal status" is informed by the fact that the domestic partnerships at issue are not created or recognized under state law. While Texas law uses the term "domestic partnership" to describe a type of business entity, no Texas statute establishes or recognizes a domestic partnership as it is described in your request or in the briefing submitted to this office.[2] Thus, the domestic partnerships about which you inquire are entirely a creation of the relevant political subdivisions. By creating domestic partnerships and offering health benefits based on them, the political subdivisions have created and recognized something not established by Texas law. The question remains whether the status created by the political subdivisions constitutes a "legal status" for purposes of the constitution.

Briefing received by this office contends that the provision of health benefits, standing alone, does not constitute the creation or recognition of a legal status.[3] However, the domestic partnership benefits programs in question do not simply confer healthcare benefits on a new class of individuals. Instead, these political subdivisions have elected to establish a series of requirements that an individual must satisfy in order to be considered a domestic partner by the political subdivision. For example, each of the political subdivisions referenced in your request letter requires applicants to execute an affidavit swearing that they satisfy the political subdivision's domestic partnership criteria.[4] Further, applicants for domestic partnership status must provide supporting documentation as necessary. Only if domestic partnership status is obtained through this process do the political subdivisions confer health insurance benefits upon their employees' domestic partners. Thus, the political subdivisions have defined the criteria for the creation of a domestic partnership and established a legal process that must be followed in order for that status to gain recognition from the political subdivision.

In a related context, in the case of Ross v. Goldstein, a Texas court of appeals was urged to adopt a "marriage-like relationship doctrine" as an equitable remedy for the surviving partner of a same-sex couple. 203 S.W.3d at 514. Declining to do so, the court emphasized that article I, section 32 is clear, and as a result, a court "may not create such a remedy" because it is foreclosed by the Texas Constitution. Id. In the context of your inquiry, the political subdivisions in question have created an even more formal legal status than the equitable remedy rejected by the court of appeals in Ross v. Goldstein. By establishing eligibility criteria and requiring affidavits and other legal documentation to demonstrate applicants' eligibility to be considered domestic partners, these political subdivisions have purported to create a legal status of domestic partnership that is not otherwise recognized under Texas law. Furthermore, the political subdivisions "recognize" that legal status by providing benefits to individuals who attain that status.[5]

We next address whether the domestic partnership legal status created by the political subdivisions is "similar to marriage" and therefore not permitted by the Texas Constitution. TEX. CONST. art. I, § 32(b). While the Texas Constitution does not define "similar," the courts of this state have explained that the common meaning of "similar" is "having a likeness or resemblance" and having "characteristics" in common. Prudholm v. State, 333 S.W.3d 590, 594 (Tex. Crim. App. 2011) (citing THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1782 (2d ed. 1987)); Tex. Att'y Gen. Op. No. H-1129 (1978) at 4. The term "domestic partnership" is commonly understood to mean "a relationship that an employer or governmental entity recognizes as equivalent to marriage for the purpose of extending employee-partner benefits otherwise reserved for the spouses of employees." BLACK'S LAW DICTIONARY 558 (9th ed. 2009); see Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex. 2012) (resorting to the same dictionary to determine the common meaning of a term).

The political subdivisions referenced in your request letter have each established slightly different criteria to determine whether applicants qualify for domestic partnership status. A commonality among all of the political subdivisions, however, is that they use criteria usually associated with marriage. For example, the Family Code prohibits a county clerk from issuing a marriage license to a person who is presently married, related to the other applicant within a certain degree of consanguinity, or under 18 years of age except in limited circumstances. TEX. FAM. CODE ANN. §§ 2.004(b)(5)-(6), .009(b), .101 (West 2006 & Supp. 2012). Similarly, every political subdivision that you reference requires that applicants for domestic partnership status attest that prior undissolved marriages, consanguinity, and age would not operate to preclude them from marrying under state law.[6] Thus, the domestic partnership criteria established by these political subdivisions have various characteristics in common with the criteria for marriage, and the domestic partnership status resembles marriage in these respects. Applying the ordinary definition of "similar," a court is likely to conclude that the domestic partnership legal status about which you inquire is "similar to marriage" and therefore barred by article I, section 32 of the Texas Constitution.

Briefs we received in response to your request suggest that the legislative debate on article I, section 32 in the Texas House of Representatives reflects a "clear legislative intent" to the contrary.[7] Representative Chisum, the author of the constitutional amendment, stated the following on the House floor:

This amendment to the Constitution would not negate or set aside any contract that an employer wanted to make with his employee. . . . It does not change what a city might do. It just says that they won't recognize anything that creates the same legal status identical to or similar to marriage. It does not stop them from providing health benefits to same-sex partners. It is not intended to do that.

Debate on Tex. H.R.J. Res. 6 on the Floor of the House, 79th Leg., R.S. (Apr. 25, 2005) (tape available through Office of the House Comm. Coordinator). Representative Chisum's statement simply explains that article I, section 32 does not, in his view, address whether a political subdivision may provide health benefits to the unmarried partner of an employee. The constitutional provision does, however, explicitly prohibit a political subdivision from creating or recognizing a legal status identical or similar to marriage. The political subdivisions you ask about have not simply provided health benefits to the partners of their employees. Instead, they have elected to create a domestic partnership status that is similar to marriage. Further, they have recognized that status by making it the sole basis on which health benefits may be conferred on the domestic partners of employees.

As other briefing submitted to this office observed, the United States Supreme Court has granted certiorari in two cases addressing state and federal laws that define marriage as it is defined in article I, section 32 of the Texas Constitution. See Windsor v. United States, 699 F.3d 169, 187-88 (2d Cir. 2012), cert. granted, 81 U.S.L.W. 3333 (U.S. Dec. 11, 2012) (No. 12-307) (addressing the federal Defense of Marriage Act); Perry v. Brown, 671 F.3d 1052, 1067-68 (9th Cir. 2012), cert. granted, Hollingsworth v. Perry, 81 U.S.L.W. 3075 (U.S. Dec. 7, 2012) (No. 12-144) (addressing California's constitutional amendment defining marriage). The Supreme Court heard argument in these cases on March 26 and 27, 2013 and will likely render a decision before the Court's current term ends in June of this year. Those cases involve issues of federal constitutional law that are beyond the scope of your question about the meaning of the Texas Constitution. Depending on the outcome of those cases, however, the Court's decision could call into question the enforceability of article I, section 32 under the United States Constitution.

SUMMARY

Article I, section 32 of the Texas Constitution prohibits political subdivisions from creating a legal status of domestic partnership and recognizing that status by offering public benefits based upon it.

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Dan Patrick, Chair, Senate Educ. Comm., to Honorable Greg Abbott, Tex. Att'y Gen. at 2 (Nov. 2, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] The term "domestic partnership" is used in the unrelated business context throughout the Business Organizations Code, but such references are not applicable here. See TEX. BUS. ORGS. CODE ANN. § 1.002(17), (63)(B), (67) (West 2012) (defining "domestic" and "partnership" for purposes of the Business Organizations Code and using the terms together to identify certain types of entities).

[3] Brief from JoAnne Bernal, El Paso Cnty. Att'y at 8 (Jan. 7, 2013); Brief from Karen Kennard, Austin City Att'y at 9 (Jan. 10, 2013); Brief from James P. Allison, Gen. Counsel, Cnty. Judges & Comm'rs Ass'n of Tex. at 3 (Dec. 6, 2012); Brief from Joey Moore, Gen. Counsel, Tex. State Teachers Ass'n at 2 (Dec. 12, 2012) (briefs on file with Op. Comm.).

[4] See Letter from Sylvia Borunda Firth, El Paso City Att'y, Exhibit B (Dec. 6, 2012) (City of El Paso Domestic P'ship Affidavit) (on file with Op. Comm.); City of Fort Worth, Affidavit of Domestic P'ship; City of Austin, Domestic P'ship Affidavit & Agreement; City of San Antonio, Domestic P'ship Affidavit & Agreement; El Paso County, Affidavit of Domestic P'ship; Travis Cnty., Declaration of Domestic P'ship; Pflugerville Indep. Sch. Dist., Affidavit of Domestic P'ship (last visited Apr. 18, 2013).

[5] We need not determine whether providing health benefits, standing alone, might create or recognize a legal status in contravention of article I, section 32, because the political subdivisions in question have gone well beyond the mere provision of health benefits.

[6] See sources cited supra note 4.

[7] Letter from Scott Houston, Deputy Exec. Dir. & Gen. Counsel, Tex. Mun. League at 2 (Dec. 17, 2012); see also Letter from Karen Kennard, City Att'y, City of Austin at 5 (Jan. 10, 2013) (briefs on file with Op. Comm.).