When I was working on this week’s cover story analyzing the Texas Supreme Court’s June 30 ruling in Pidgeon v. Turner, regarding marriage equality in Texas, I called the ACLU of Texas for comment, but as of deadline on Thursday, July 6, I hadn’t heard back from them. But shortly after deadline, Kali Cohn, an attorney with the ACLU, emailed me with some additional information about the Texas Supreme Court ruling and where it can go from here.

“Any state Supreme Court opinion can be appealed to the U.S. Supreme Court if it involves a ‘federal question,’ which includes a question of constitutional law,” Cohn wrote. “Because this case concerns the extent to which a state statute survives following Obergefell, the case involves a federal question. That means that it could be appealed to the Supreme Court. But, that is a decision that the parties to the case would need to make. Appealing to the Supreme Court is at the parties’ discretion.”

After issuing its opinion, the Texas Supreme Court remanded the case to the trial court. The plaintiffs sued to stop Houston from offering spousal benefits to employees’ same-sex spouses.

If all marriages are equal, as Obergefell makes clear, what is the trial court supposed to decide? Well the Texas Supreme Court seems to think the U.S. Supreme Court only decided that a marriage license must be issued. Benefits may be offered only to opposite-sex spouses.

So, is the trial court supposed to decide whether Houston city employees can continue to receive benefits?

“Yes,” Cohn wrote. “The case was brought by two private plaintiffs who sued Houston to try to stop Houston from providing employee benefits to same-sex spouses of employees married in other states (the case was brought pre-Obergefell, so there were no same-sex couples married in Texas at the time). They argued that provisions of the Texas Constitution and Family Code banned the recognition of same-sex marriage in Texas and prohibited cities from giving effect to same-sex marriages from out-of-state. The trial court concluded that the city could not provide those benefits consistent with the Texas State Constitution, Texas Family Code, and city charter, and issued an injunction stopping the city from providing those benefits. After the trial court issued its ruling, the Supreme Court handed down Obergefell, which ruled that same-sex married couples are entitled to the same legal rights, benefits, and responsibilities of different-sex couples.

“The Court of Appeals then held that because of that decision (as well as the De Leon decision from the Fifth Circuit that held that the provisions the trial court relied on were unconstitutional in light of Obergefell), the trial court’s injunction should be reversed (which allowed Houston to provide the benefits again), and the trial court had to reconsider its decision in light of the new cases).

“The Supreme Court agreed, with the clarification that De Leon is ‘persuasive’ authority (which means that the court should consider it), but is not ‘binding’ (because only U.S. Supreme Court authority is binding on state courts, not federal court of appeals opinions). So that means it is going back to the trial court to decide whether Houston can provide benefits to same-sex couples.”