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According to an opinion issued by the Attorney General on Monday, the Texas Constitution does not necessarily prohibit political subdivisions, such as school districts, from providing employee benefits to domestic partners. Instead, it prohibits them from creating a “legal status” of domestic partnership and recognizing that status by offering public employee benefits based upon it. Article I, section 32 of the Texas Constitution states that marriage consists only of “the union of one man and one woman.” Further, it states that Texas or a “political subdivision” of Texas “may not create or recognize any legal status identical or similar to marriage.” Cities, counties, and school districts are “political subdivisions” subject to this constitutional provision.
Certain Texas cities, counties, and school districts “offer some form of insurance benefits to domestic partnerships” as part of their employee benefits programs. The Attorney General observed that the domestic partnerships at issue were not created by state law, but instead, were entirely a creation of the political subdivision. Further, according to the Attorney General, the domestic partnership benefits programs in question provide healthcare benefits on a new class of individuals and establish requirements for qualifying as a domestic partner, such as affidavits and supporting documentation.
The Attorney General stated: “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.” The domestic partnerships criteria established in these programs is also similar to criteria associated with marriage.

Legislative debate over article I, section 32 in the House of Representatives reflected the author’s belief that the constitutional provision did not address specifically whether a political subdivision may provide employee benefits to the unmarried partner of an employee. Rather, it prohibits the creation of a legal status similar to marriage. The benefits programs here not only offered benefits to domestic partners, but created a legal status and recognized that status by making it the sole basis on which to provide benefits to domestic partners of employees. Thus, it is the creation of a “legal status similar to marriage” that violates the Texas Constitution.

This will not be the last word on this issue. The Attorney General noted that 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. Decisions on those cases are expected before the end of the Court’s term in June.

To read the full opinion, click here:

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