Justice Boyd delivered the opinion of the Court.
The trial court denied the City of Houston's and its Mayor's pleas to the jurisdiction and issued a temporary injunction prohibiting them from "furnishing benefits to persons who were married in other jurisdictions to City employees of the same sex." While their interlocutory appeal was pending in the court of appeals, the United States Supreme Court held that states may not "exclude same-sex couples from civil marriage on the same terms and conditions
Petitioners Jack Pidgeon and Larry Hicks contend that the court's opinion and judgment impose — or at least can be read to impose — greater restrictions on remand than Obergefell and this Court's precedent require. We agree. We reverse the court of appeals' judgment, vacate the trial court's orders, and remand the case to the trial court for further proceedings consistent with our opinion and judgment.
The "annals of human history reveal the transcendent importance of marriage." Obergefell, 135 S.Ct. at 2593-94. "Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together." Id. at 2594. For thousands of years, both the role of marriage and its importance to society were founded on the "understanding that marriage is a union between two persons of the opposite sex." Id. Until only recently, "marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization." United States v. Windsor, 570 U.S. 744, 133 S.Ct. 2675, 2689, 186 L.Ed.2d 808 (2013).
While "most people" have shared that view, others have not. In the early 1970s, for example, two men obtained a Texas marriage license when one of them appeared before the county clerk dressed as a woman. See James W. Harper & George M. Clifton, Comment, Heterosexuality; A Prerequisite to Marriage in Texas?, 14 S. TEX. L.J. 220, 220 (1972-73). In response, the Texas Legislature amended the Texas Family Code to expressly provide that a marriage license "may not be issued for the marriage of persons of the same sex." See Act of June 15, 1973, 63rd Leg., R.S., ch. 577, § 1, 1973 Tex. Gen. Laws 1596, 1596-97 (amending former Texas Family Code section 1.01). Texas thus became the second state in the Union
In response to early lawsuits, courts throughout the United States consistently rejected legal challenges to the historical understanding of marriage.
In the Court's view, the federal DOMA definitions did not merely preserve the traditional view of marriage. Instead, their "avowed purpose and practical effect [were] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of [the] States." Id. at 2693. Concluding that "no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom [a state], by its marriage laws, sought to protect in personhood and dignity," the Court found the federal definitions unconstitutional. Id. at 2696.
Based on Windsor, the City of Houston city attorney advised then-Mayor Annise Parker that the City "may extend benefits" to City employees' same-sex spouses who were legally married in other states "on the same terms it extends benefits to heterosexual spouses." In the attorney's opinion, refusing to provide such benefits would "be unconstitutional." Relying on this advice, on November 19, 2013, Mayor Parker sent a memo to the City's human-resources director "directing that same-sex spouses of employees who have been legally married in another jurisdiction be afforded the same benefits as spouses of a heterosexual marriage." The City began offering those benefits soon after the Mayor issued her directive.
A month later, on December 13, 2013, Pidgeon and Hicks
Pidgeon and Hicks alleged that they are Houston taxpayers and qualified voters, that the City is "expending significant public funds on an illegal activity," and that the Mayor's directive authorizing those expenditures violates Texas's and the City's
Pidgeon alleged that these DOMAs remained valid and enforceable despite Windsor because Windsor addressed only the federal DOMA and its impact on persons married in states that had elected to allow same-sex marriages. In Pidgeon's view, Windsor merely required the federal government to acknowledge marriages the various states may recognize; it did not require Texas or any other state to license same-sex marriages or recognize same-sex marriages performed in other states. Pidgeon sought unspecified actual damages as well as temporary and permanent injunctive relief prohibiting the City from providing benefits to same-sex spouses of employees married in other jurisdictions.
The Mayor and City filed pleas to the jurisdiction asserting governmental immunity and challenging Pidgeon's standing to assert his claims.
Meanwhile, courts across the country were hearing other lawsuits challenging the constitutionality of various state DOMAs. In Obergefell, the United States Supreme Court consolidated and agreed to hear five of those cases, in which the plaintiffs alleged that their states' laws denying same-sex couples the right to marry or prohibiting recognition of the legal validity of a same-sex marriage from another state violate the federal Constitution. 135 S.Ct. at 2593. On June 26, 2015 — while this case (Pidgeon II) remained pending on interlocutory appeal before the Texas court of appeals — the United States Supreme Court issued its decision in Obergefell. Id. at 2608.
In another 5-4 decision, the Court concluded in Obergefell that the state DOMAs at issue violate "the Due Process and Equal Protection Clauses of the Fourteenth Amendment." Id. at 2604. Based on that conclusion, the Court held that the states may not "exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples," and may not "refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." Id. at 2605.
The Mayor then filed a supplemental brief in the court of appeals, arguing that Obergefell required the court to reverse the injunction. In response, Pidgeon argued that even if Obergefell requires Texas to license and recognize same-sex marriages, it does not require "states to pay taxpayer-funded benefits to same-sex relationships." According to Pidgeon, Obergefell did not resolve his claims because federal courts cannot "commandeer state spending decisions."
On July 28, 2015, the court of appeals reversed the trial court's temporary injunction. 477 S.W.3d 353, 355 (Tex. App. — Houston [14th Dist.] 2015). In a brief per curiam opinion, the court recited Obergefell's holdings that "same sex couples may exercise their fundamental right to marry in all States," and that "there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." Id. at 354 (quoting Obergefell, 135 S.Ct. at 2604-05, 2607-08). Noting "the substantial change in the law regarding same-sex marriage since the temporary injunction was signed," the court reversed the injunction and remanded the case to the trial court for further proceedings. Id. at 355. We granted Pidgeon's petition for review.
We must first determine whether we have jurisdiction to review the court of appeals' interlocutory decision. The Mayor appealed from the trial court's orders denying her plea to the jurisdiction and granting the temporary injunction. Texas law permits interlocutory appeals from such orders, see TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4), (8), but currently, this Court's jurisdiction over interlocutory appeals "is limited." TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 71 (Tex. 2016) (citing TEX. GOV'T CODE § 22.001(a)(1)).
Pidgeon argues that the court of appeals' decision in this case creates an inconsistency that should be clarified. In its opinion, the court recited not only the Supreme Court's holdings in Obergefell, but also the United States Fifth Circuit Court of Appeals' holdings in a case called De Leon v. Abbott. See 477 S.W.3d at 354-55 (citing De Leon v. Abbott, 791 F.3d 619, 624-25 (5th Cir. 2015)). Concluding that both decisions created a "substantial change in the law regarding same-sex marriage since the temporary injunction was signed," the court reversed the temporary injunction and remanded the case to the trial court "for proceedings consistent with Obergefell and De Leon." Id. at 355. Pidgeon contends that the court's requirement that the trial court proceed "consistent with" De Leon conflicts with our previous decisions holding that Fifth Circuit decisions are not binding on Texas courts. See, e.g., Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (holding that while "Texas courts may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court,... they are obligated to follow only higher Texas courts and the United States Supreme Court").
The Mayor agrees that De Leon is not binding on the trial court but contends that the court of appeals did not hold that it was. According to the Mayor, the court of appeals "did not rule on how Obergefell and De Leon affect the ultimate outcome of [Pidgeon's] claims," and instead "simply reversed the temporary injunction based on the change in the law and remanded to the trial court, in the interest of justice, for proceedings consistent with those cases."
We agree with the Mayor that the trial court could read the court of appeals' opinion
Arguments and Requested Relief
We now turn to Pidgeon's substantive arguments. Pidgeon does not argue that the court of appeals erred by dissolving the temporary injunction and remanding the case to the trial court. Instead, he contends that the court of appeals (A) should not have instructed the trial court to conduct further proceedings "consistent with" De Leon; (B) should not have reversed the temporary injunction, but instead should have vacated or dissolved it; and (C) should have affirmed the temporary injunction "to the extent" it required the City to "claw back" benefits the City provided to same-sex spouses before Obergefell. In addition, he (D) urges us to instruct the trial court to "narrowly construe" Obergefell on remand. We address each argument in turn.
Pidgeon first argues that by instructing the trial court to conduct further proceedings "consistent with" the Fifth Circuit's decision in De Leon, the court of appeals' opinion could be misread to mean that De Leon is binding on the trial court. Whether De Leon is binding is crucial to Pidgeon's case because unlike Obergefell, De Leon specifically held that the Texas DOMAs violate the federal Constitution and cannot be enforced. See De Leon v. Perry, 975 F.Supp.2d 632, 666 (W.D. Tex. 2014), aff'd sub nom., De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015). We agree with Pidgeon that the court of appeals should not have ordered the trial court to proceed on remand "consistent with" De Leon.
Two same-sex couples filed De Leon in federal court in San Antonio in 2013, shortly after Windsor issued. They sued the Texas Governor, the Texas Commissioner of the Department of State Health Services, and the Bexar County Clerk (collectively, the Governor), challenging the constitutionality of the Texas DOMAs under the federal Constitution. The federal district court enjoined the Governor from enforcing the Texas DOMAs, holding that "Texas' prohibition on same-sex marriage conflicts with the United States Constitution's guarantees of equal protection and due process," 975 F.Supp.2d at 639, and "Texas' refusal to recognize ... out-of-state same-sex marriage[s] violates due
After the Supreme Court announced its decision in Obergefell, the Governor agreed with the De Leon plaintiffs that the federal-court injunction was "correct in light of Obergefell." Id. at 625. The Fifth Circuit thus affirmed the injunction and remanded the case with instructions that the district court enter a final judgment on the merits in the plaintiffs' favor. Id. The Governor did not oppose this disposition or seek the Supreme Court's review. On July 7, 2015, the district court entered a final judgment declaring that the Texas DOMAs violate the federal Constitution's due-process and equal-protection clauses and permanently enjoining the Governor "from enforcing Texas's laws prohibiting same-sex marriage." The parties agree that the State of Texas has been providing benefits to state employees' same-sex spouses ever since.
We agree with Pidgeon that De Leon does not bind the trial court in this case and the court of appeals should not have instructed the trial court to conduct further proceedings "consistent with" De Leon. Penrod Drilling, 868 S.W.2d at 296.
B. "Reversal" of the injunction
Pidgeon next argues that by "reversing" the trial court's temporary injunction instead of vacating or dissolving it, the court of appeals' judgment might be taken to have a res-judicata effect prohibiting Pidgeon from seeking or obtaining the same or similar relief on remand. The Mayor contends, however, that the court of appeals could not have erred by reversing
Texas appellate courts have held that the "dissolution of a temporary injunction bars a second application for such injunctive relief." See Sonwalkar v. St. Luke's Sugar Land P'ship, 394 S.W.3d 186, 195 (Tex. App. — Houston [1st Dist.] 2012, no pet.); see also City of San Antonio v. Singleton, 858 S.W.2d 411, 412 (Tex. 1993) (stating that the trial court's jurisdiction to "review, open, vacate or modify" an injunction based on changed conditions "must be balanced against principles of res judicata"). But that is not true if "the second request is based on changed circumstances not known by the applicant at the time of the first application." Sonwalkar, 394 S.W.3d at 195 (citing State v. Ruiz Wholesale Co., 901 S.W.2d 772, 776 (Tex. App. — Austin 1995, no writ)). When conditions have changed, including a change in the law, the trial court may consider the injunction anew in light of the new law or circumstances. See Smith v. O'Neill, 813 S.W.2d 501, 502 (Tex. 1991) (per curiam) (citing City of Tyler v. St. Louis Sw. Ry., 405 S.W.2d 330, 332 (Tex. 1966)); Sonwalkar, 394 S.W.3d at 195.
Obergefell undoubtedly constitutes a "change in the law" that justified the dissolution of the trial court's injunction in this case. But in light of that change in the law, Pidgeon is not precluded from seeking the same or similar relief on remand. On remand, the trial court must consider both parties' arguments regarding the effect of Obergefell on Pidgeon's claims, and may grant whatever relief is then appropriate.
C. "Claw-back" Relief
Pidgeon next argues that the court of appeals should have affirmed the temporary injunction "to the extent" the injunction required the City to "claw back" tax dollars it expended on benefits for same-sex spouses prior to Obergefell. Pidgeon reasons that Obergefell does not apply retroactively to authorize pre-Obergefell expenditures because the Supreme Court acknowledged that it was attributing a new meaning to the Fourteenth Amendment based on "new insights and societal understandings." Obergefell, 135 S.Ct. at 2603. According to Pidgeon, Supreme Court decisions apply retroactively when the Court determines and enforces the Constitution's original meaning, see Harper v. Va. Dept. of Taxation, 509 U.S. 86, 106-07, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (Scalia, J., concurring), but not when it changes the Constitution's meaning as it did in Obergefell.
In response, the Mayor contends that Pidgeon lacks standing to seek any retroactive relief. The Mayor argues that although Pidgeon — as a City taxpayer — may have standing to complain about the City's future illegal expenditures of public funds, taxpayers only have standing to seek retrospective relief against illegal expenditures if they can demonstrate a particularized injury. See Williams v. Lara, 52 S.W.3d 171, 179 (Tex. 2001).
Relying on Burwell v. Hobby Lobby Stores, Inc., ___ U.S. ___, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014) — a challenge to federal health-insurance regulations under the federal Religious Freedom Restoration Act, id. at 2759 — Pidgeon replies that he and Hicks have in fact suffered a particularized injury "because they are devout Christians who have been compelled by the mayor's unlawful edict to subsidize homosexual relationships that they regard as immoral and sinful." The Mayor, in turn, denies that Hobby Lobby grants Pidgeon standing under these circumstances, and contends that — even if Pidgeon had standing to seek retroactive monetary relief — he would not have standing to force the City to recover funds it previously paid to third parties. See Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94, 96 (1937) (holding that when a taxing entity has already spent a taxpayer's tax money, "an action for its recovery is for the [taxing entity]," and the "cause of action belongs to it alone"); see also Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 556 (Tex. 2000) (quoting Hoffman with approval).
We find these arguments both interesting and important, but at least two obstacles prevent us from reaching them today. First, Pidgeon never requested an injunction requiring the City to claw back benefits it provided before Obergefell; and second, the trial court never granted one. The temporary injunction at issue here prospectively prohibited the City "from furnishing benefits to persons who were married in other jurisdictions to City employees of the same sex." The order did not to any extent require the City to recover benefits it had previously paid. It was a temporary injunction, and its only "proper function" was to "preserve the status quo." Coyote Lake Ranch v. City of Lubbock, 498 S.W.3d 53, 65 (Tex. 2016). We cannot conclude that the court of appeals erred by failing to preserve the injunction "to the extent" that it required a claw-back when it did not require a claw-back to any extent.
Because Pidgeon has never yet sought a claw-back injunction, we express no opinion on whether he has standing to seek one or whether he is entitled to one. We agree with Pidgeon, however, that the court of appeals' opinion and judgment do not prohibit him from seeking such an injunction or any other relief on remand. But we conclude that the court of appeals did not err by reversing this temporary injunction in its entirety.
D. Instructions on Remand
Finally, Pidgeon urges us to instruct the trial court to "narrowly construe" Obergefell on remand and to "comply with Obergefell but not to expand on it," so as to "preserve as much of the [Texas DOMAs] as possible." Pidgeon argues that we should provide these instructions because Obergefell is "poorly reasoned," has "no basis in the text or history of the Constitution," and does not "faithfully interpret" the Constitution. So construed,
The Mayor agrees we should remand this case to the trial court, but contends that Obergefell, and Windsor before it, held that the Constitution protects not only the right of same-sex couples to marry, but also to receive all of the "benefits" of marriage. See, e.g., Obergefell, 135 S.Ct. at 2606 (declining to adopt a "slower, case-by-case determination of the required availability of specific public benefits to same-sex couples"); Windsor, 133 S.Ct. at 2694 (observing that the federal DOMA prevents "same-sex married couples from obtaining government healthcare benefits they would otherwise receive"). The Mayor also contends that Pidgeon lacks standing to challenge the Mayor's directive under Obergefell, and rejects Pidgeon's position that Texas courts can "narrowly construe" Obergefell, at least to the extent that means they can ignore its natural meaning and applications. See, e.g., McKinney v. Blankenship, 154 Tex. 632, 282 S.W.2d 691, 694-95 (1955) (rejecting argument that Texas courts could ignore Brown v. Board of Education since Texas's segregation laws "were not before the Supreme Court" in that case as "so utterly without merit that we overrule it without further discussion").
We agree with the Mayor that any effort to resolve whether and the extent to which the Constitution requires states or cities to provide tax-funded benefits to same-sex couples without considering Obergefell would simply be erroneous.
Of course, that does not mean that the Texas DOMAs are constitutional or that the City may constitutionally deny benefits to its employees' same-sex spouses. Those are the issues that this case now presents in light of Obergefell. We need not instruct to the trial court to "narrowly construe" Obergefell to confirm that Obergefell did not directly and expressly resolve those issues. But neither will we instruct the trial court to construe Obergefell in any manner that makes it irrelevant to these issues. Pidgeon contends that neither the Constitution nor Obergefell requires citizens to support same-sex marriages with their tax dollars, but he has not yet had the opportunity to make his case. And the Mayor has not yet had the opportunity to oppose it. Both are entitled to a full and fair opportunity to litigate their positions on remand.
Although both parties agree that we should remand this case for the parties to have that full and fair opportunity, some amici have argued that we should resolve the parties' dispute here on this interlocutory appeal. We cannot resolve the parties' claims now, however, because they have not yet been fully developed or litigated. The parties' arguments address the meaning and ramifications of Obergefell, which was not announced until after the parties had filed their briefs in the court of appeals. Naturally, the parties did not raise their current arguments in the trial court or in the court of appeals, and neither court ruled on them. Many of the arguments — including those addressing standing and retroactivity, for example — depend on an evidentiary record that the parties have not yet had the opportunity to develop. "Without an actual challenge ..., without full briefing from all parties ..., and without complete vetting of the parties' potential arguments in the lower courts, we are ill-prepared to offer — and constitutionally prohibited from offering — an advisory interpretation ... that could have significant, lasting consequences." Hegar v. Tex. Small Tobacco Coal., 496 S.W.3d 778, 792 (Tex. 2016) (citing Brooks v. Northglen Ass'n, 141 S.W.3d 158, 164 (Tex. 2004)); see also Pub. Affairs Assocs. v. Rickover, 369 U.S. 111, 113, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962) ("These are delicate problems; their solution is bound to have far-reaching import. Adjudication of such problems, certainly... should rest on an adequate and full-bodied record. The record before us is woefully lacking in these requirements."). We decline the amici's requests that we render a final ruling on the merits before the parties have had a full opportunity to make their case.
Finally, we address the Mayor's and the City's interlocutory appeals from the trial court's orders denying their pleas to the jurisdiction based on governmental immunity. Although the parties briefed this issue in the court of appeals, they did so before Obergefell, and the court did not address the issue in its opinion or its judgment. The Mayor noted the issue but reserved briefing in this Court. We are
The parties agree, for example, that Pidgeon sued the Mayor in her official capacity for acting ultra vires, that is, "without legal authority." City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (2009). Pidgeon alleges that the Mayor acted unlawfully and without authority by issuing and enforcing the directive because the Texas and Houston DOMAs prohibit the City from providing benefits to employees' same-sex spouses. Governmental immunity does not bar an ultra-vires claim, but the parties disagree whether the Mayor's directive remains unlawful and unauthorized after Obergefell.
The trial court denied the Mayor's plea, but it did so in 2014, prior to Obergefell. Whether (or the extent to which) Pidgeon alleges ultra-vires conduct even after Obergefell is an issue that the trial court must address in the first instance. See TEX. R. APP. P. 60.2(f) (providing that this Court may "vacate the lower court's judgment and remand the case for further proceedings in light of changes in the law"); In re Doe 2, 19 S.W.3d 278, 283 (Tex. 2000) (noting that rule 60.2(f) is "particularly well-suited" to situations in which courts must address novel situations).
Unlike the Mayor, however, the City is not a proper party to an ultra-vires claim. See Heinrich, 284 S.W.3d at 372-73 ("[T]he governmental entities themselves — as opposed to their officers in their official capacity — remain immune from suit.... [I]t follows that [ultra-vires] suits cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity."). The City argued in its plea that the trial court must dismiss Pidgeon's claims against it because Pidgeon failed to plead or establish any waiver of the City's immunity. In response, Pidgeon argued that the Texas Uniform Declaratory Judgments Act (the DJA) waives the City's immunity against Pidgeon's claim. See TEX. CIV. PRAC. & REM. CODE §§ 37.001-.011.
The City pointed out, however, that Pidgeon never mentioned the DJA in his petition, much less pleaded that it waived the City's governmental immunity. At the hearing on the City's plea, and in his brief in the court of appeals, Pidgeon acknowledged that he had not expressly pleaded a claim or waiver under the DJA, but offered to amend his pleadings "to make the request for a declaration more explicit." On remand, Pidgeon will have the opportunity to replead his claims against the City, and the City will have the opportunity to file a new plea to the jurisdiction as to any such claims.
In Obergefell, the Supreme Court acknowledged that our historical view of
Today, however, we are dealing only with an interlocutory appeal from a trial court's orders denying a plea to the jurisdiction and granting a temporary injunction. For the reasons explained, we hold that the Fifth Circuit's decision in De Leon does not bind the trial court on remand, and the trial court is not required to conduct its proceedings "consistent with" that case. We hold that the court of appeals' judgment does not bar Pidgeon from seeking all appropriate relief on remand or bar the Mayor from opposing that relief. We hold that the court of appeals did not err by failing to affirm the temporary injunction "to the extent" it required the City to claw back payments made prior to Obergefell. And we decline to instruct the trial court how to construe Obergefell on remand. We reverse the court of appeals' judgment, vacate the trial court's temporary injunction order, and remand this case to the trial court for further proceedings consistent with our judgment and this opinion.