Jack Pidgeon and Larry Hicks v. Mayor Sylvester Turner and City of Houston

IN THE SUPREME COURT OF TEXAS
══════════
No. 15-0688
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JACK PIDGEON AND LARRY HICKS, PETITIONERS,

v.

MAYOR SYLVESTER TURNER AND CITY OF HOUSTON, RESPONDENTS

══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
══════════════════════════════════════════

Argued March 1, 2017

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 as opposite-sex

couples.” Obergefell v. Hodges, — U.S. —, 135 S. Ct. 2584, 2605 (2015). The court of appeals

then reversed the temporary injunction and remanded the case to the trial court for further

proceedings.

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.

I.
Background

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, — U.S. —, 133 S. Ct. 2675, 2689 (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

2
1.01). Texas thus became the second state in the Union1 to adopt what is often referred to as a

“defense of marriage act” (DOMA).2

In response to early lawsuits, courts throughout the United States consistently rejected legal

challenges to the historical understanding of marriage.3 Beginning in the 1990s, many other states

and the federal government4 enacted DOMAs to amend their statutes5—and in some states, their

constitutions6—to preserve the traditional view of marriage. Around the same time, however, other

1
A few weeks earlier in 1973, Maryland adopted a statute providing that “[o]nly a marriage between a man
and a woman is valid in this state.” See 1973 Md. Laws 574 (enacting former MD. CODE art. 62, § 1 (1973)).
2
For simplicity’s sake, we use the acronym DOMA to refer generically to legislation intended to limit
marriage to one man and one woman or otherwise defend or promote that historical view. In actuality, the laws we
refer to as DOMAs include a variety of provisions and address the subject in different ways.
3
See, e.g., Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) (holding federal statute limited marriage to
one man and one woman and did not violate federal constitution); Dean v. District of Columbia, 653 A.2d 307 (D.C.
1995) (holding D.C. statute did not authorize same-sex marriage and did not violate federal constitution); Jones v.
Hallahan, 501 S.W.2d 588, 590 (Ky. 1973) (holding state statute limited marriage to “the union of a man and a
woman” and did not violate federal constitution); Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971) (holding state
statute limited marriage to two persons of the opposite sex and did not violate federal constitution), appeal dism’d,
409 U.S. 810, 810 (1972) (dismissing appeal “for want of a substantial federal question”); Anonymous v. Anonymous,
325 N.Y.S.2d 499, 500 (1971) (“The law makes no provision for a ‘marriage’ between persons of the same sex.”).
4
Congress passed the federal Defense of Marriage Act in 1996, and then-President Clinton signed it into law.
See Pub. L. No. 104-199, Sept. 21, 1996, 110 Stat. 2419. The federal DOMA had two key sections. First, it provided
that no state “shall be required to give effect to” any other state’s legal recognition of “a relationship between persons
of the same sex that is treated as a marriage” or “a right or claim arising from such relationship.” Id. § 2(a) (codified
at 28 U.S.C. § 1738C (1996)). Second, it provided that when used in any federal law, “the word ‘marriage’ means
only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a
person of the opposite sex who is a husband or a wife.” Id. § 3(a) (codified at 1 U.S.C. § 7 (1996)).
5
See, e.g., ALA. CODE § 30-1-19 (1998); ALASKA STAT. § 25.05.013 (1996); ARIZ. REV. STAT. § 25-101(C)
(1996); ARK. CODE § 9-11-109 (1997); CAL. FAM. CODE § 300 (1992); COLO. REV. STAT. § 14-2-104(1)(b) (2000);
FLA. STAT. §§ 741.04(1), .212 (1997); GA. CODE § 19-3-3.1 (1996); HAW. REV. STAT. § 572-1 (1985); IND. CODE
§ 31-11-1-1 (1997); IOWA CODE § 595.2(1) (1998); KAN. STAT. §§ 23-2501, -2508 (1996); KY. REV. STAT.
§§ 402.005, .020(1)(d), .040, .045 (1998); LA. CIV. CODE arts. 89, 3520(B) (1999); MICH. COMP. LAWS § 551.1 (1996);
MISS. CODE. § 93-1-1(2) (1997); MO. ANN. STAT. § 451.022(2), (3) (1996); MONT. CODE § 40-1-401(1)(d) (1997);
N.C. GEN. STAT. §§ 51-1, -1.2 (1995); N.D. CENT. CODE §§ 14-03-01, -08 (1997); OHIO REV. CODE § 3101.01 (2004);
OKLA. STAT. tit. 43, § 3.1 (1997); 23 PA. CONS. STAT. § 1704 (1996); S.C. CODE § 20-1-15 (1996); S.D. CODIFIED
LAWS § 25-1-1 (1996); TENN. CODE § 36-3-113 (1996); UTAH CODE §§ 30-1-2(5) (1977), -4.1 (2004); VA. CODE
§ 20-45.2 (1997); W. VA. CODE § 48-2-603 (2001); WYO. STAT. § 20-1-101 (1977).
6
Twenty-three states passed constitutional amendments in addition to statutory provisions. See ALA. CONST.
art. I, § 36.03; ALASKA CONST. art. I, § 25; ARIZ. CONST. art. XXX, § 1; ARK. CONST. amend. LXXXIII, § 1; CAL.

3
states’ courts became more receptive to legal and constitutional challenges to laws restricting

marriage to the historical view.7 Soon, some state legislatures began amending their laws to

expressly permit and recognize same-sex marriages, and more courts began invalidating laws that

did not.8

In 2013, the United States Supreme Court held in a 5-4 decision that the federal DOMA’s

provision defining the terms “marriage” and “spouse” to apply only to opposite-sex couples

violates “basic due process and equal protection principles applicable to the Federal Government.”

Windsor, 133 S. Ct. at 2693 (citing U.S. CONST. amend. V; Bolling v. Sharpe, 347 U.S. 497

(1954)). The Court noted that by then, twelve states and the District of Columbia had “decided that

same-sex couples should have the right to marry and so live with pride in themselves and their

union and in a status of equality with all other married persons.” Id. at 2689.

CONST. art. I, § 7.5; COLO. CONST. art. II, § 31; FLA. CONST. art. I, § 27; GA. CONST. art. I, § 4, ¶ I; HAW. CONST. art.
I, § 23; KAN. CONST. art. XV, § 16; KY. CONST. § 233A; LA. CONST. art. XII, § 15; MICH. CONST. art. 1, § 25; MISS.
CONST. art. 14, § 263A; MO. CONST. art. I, § 33; MONT. CONST. art. XIII, § 7; N.C. CONST. art. XIV, § 6; N.D. CONST.
art. XI, § 28; OHIO CONST. art. XV, § 11; OKLA. CONST. art. II, § 35; S.C. CONST. art. XVII, § 15; S.D. CONST. art.
XXI, § 9; TENN. CONST. art. XI, § 18; TEX. CONST. art. I, § 32; VA. CONST. art. I, § 15-A. Six additional states passed
constitutional amendments without enacting a statutory provision. See IDAHO CONST. art. III, § 28; NEB. CONST. art.
I, § 29; NEV. CONST. art. I, § 21; OR. CONST. art. XV, § 5a; UTAH CONST. art. I, § 29; WIS. CONST. art. XIII, § 13.
7
See, e.g., Baker v. State, 744 A.2d 864, 886 (Vt. 1999) (holding that the Vermont Constitution’s common-
benefits clause requires state to provide “the same benefits and protections” to same-sex couples as to “married
opposite-sex couples”); Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743, at *6 (Alaska
Super. Ct. Feb. 27, 1998) (mem. op.) (requiring state to show compelling reason to ban same-sex marriage); Baehr v.
Lewin, 852 P.2d 44, 67 (Haw. 1993) (plurality op.) (holding Hawaii statute potentially violated Hawaii Constitution’s
equal-protection clause and was subject to “strict scrutiny,” meaning it was unconstitutional unless it was “justified
by compelling state interests” and was “narrowly drawn to avoid unnecessary abridgements of the [plaintiffs’]
constitutional rights”).
8
See, e.g., DEL. CODE tit. 13, § 129 (2013); D.C. CODE § 46-401 (2009); MD. CODE, FAM. LAW § 2-201
(2012); MINN. STAT. § 517.01 (2013); N.H. REV. STAT. ANN. § 457:1-a (2009); N.Y. DOM. REL. LAW § 10-a (2011);
15 R.I. GEN. LAWS § 15-1-1 (2013); VT. STAT. ANN. tit. 15, § 8 (2009); WASH. REV. CODE § 26.04.010 (2012);
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008);
Lewis v. Harris, 908 A.2d 196 (N.J. 2006); Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941 (Mass. 2003).

4
 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 Hicks9 filed suit against the City and

the Mayor10 in state court (Pidgeon I), challenging the Mayor’s directive and the City’s provision

9
Except when helpful to distinguish the two, we will generally refer to Pidgeon and Hicks collectively as
Pidgeon.
10
Except when helpful to distinguish the two, we will generally refer to the Mayor and the City collectively
as the Mayor. Pidgeon sued Mayor Parker in her official capacity, as is required for an ultra-vires action. See City of
El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009). Mayor Parker’s term ended on January 2, 2016, and Sylvester
Turner took office on that date. When a public officer who is sued in an official capacity ceases to hold office before
an appeal is resolved, her successor in office is automatically substituted as a party. TEX. R. APP. P. 7.2(a). Although
Mayor Turner did not initially issue the directive, he has expressed no intent to withdraw it and has continued to
defend it in this appeal.

5
of benefits pursuant to that directive. The Mayor removed Pidgeon I to federal court, which

ultimately remanded it back to state court. But by then, the state court had apparently dismissed

the suit for want of prosecution. Instead of challenging the dismissal of Pidgeon I, Pidgeon and

Hicks reasserted their claims by filing this suit (Pidgeon II) on October 22, 2014.

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 DOMAs. Specifically, prior to

Windsor, the City had amended its charter, and the State had amended the Texas Family Code and

the Texas Constitution, to more forcefully preserve the traditional view of marriage:

x In 2001, the City’s voters signed and then approved a petition to amend the City’s
charter to provide that, except “as required by State or Federal law, the City of
Houston shall not provide employment benefits, including health care, to persons
other than employees, their legal spouses and dependent children.” CITY OF
HOUSTON CHARTER art. II, § 22. Although this language did not expressly refer to
same-sex relationships, the voters’ intent to deny tax-funded employment benefits
to same-sex partners was undisputed, as reflected in the title the City itself gave to
the new provision: “Denial of Benefits to Same-Sex Partners and Related
Matters.”11

x In 2003, the Texas Legislature amended the Family Code to expressly provide that
(1) any “marriage between persons of the same sex . . . is contrary to the public
policy of this state and is void in this state”; and (2) the state or any agency or
political subdivision “may not give effect to” any “right or claim to any legal
protection, benefit, or responsibility asserted as a result of a marriage between
persons of the same sex . . . in this state or in any other jurisdiction,” TEX. FAM.
CODE § 6.204(b), (c)(2) (2003). See Act of May 14, 2003, 78th Leg., R.S., ch. 124,
§ 1, 2003 Tex. Sess. Law Serv. 124.

x In 2005, two-thirds of the Texas Senate and House approved a joint resolution to
amend the Texas Constitution to expressly provide that:

11
See also “City Voters Reject Same-Sex Benefits,” HOUS. CHRON. (Nov. 7, 2001),
http://www.chron.com/news/houston-texas/article/City-voters-reject-same-sex-benefits-2072330.php (“Gay
rights . . . was the burning issue.”).

6
 (a) Marriage in this state shall consist only of the union of one man
and one woman[, and]

(b) This state or a political subdivision of this state may not create or
recognize any legal status identical or similar to marriage.

Act effective Nov. 11, 2005, 79th Leg., R.S., Tex. Gen. Laws 5409. Later that year,
over 76% of Texas voters approved the proposition.12 See TEX. CONST. art. I, § 32.

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.13 The trial court denied the pleas and granted

Pidgeon’s request for a temporary injunction prohibiting the Mayor “from furnishing benefits to

persons who were married in other jurisdictions to City employees of the same sex.” The Mayor

immediately filed this interlocutory appeal challenging both the order denying the pleas to the

jurisdiction and the order granting the temporary injunction.

12
See OFFICE OF THE SEC’Y OF STATE, RACE SUMMARY REPORT: 2005 CONSTITUTIONAL AMENDMENT
ELECTION (2005), http://elections.sos.state.tx.us/elchist117_state.htm.
13
The City challenged Pidgeon’s standing to assert any of his claims against the City, but the Mayor initially
challenged only his standing to sue her for damages and attorney’s fees. She later filed a supplemental plea challenging
all of Pidgeon’s claims. The trial court heard and ruled on all of the challenges together.

7
 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

8
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.14

II.
Our Jurisdiction

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)).17 We may only review the

appellate court’s interlocutory decision if (1) one or more justices dissented in the court of appeals,

14
Both before and after we granted review, we received numerous amicus curiae briefs urging us to consider
the case and expressing various views on how we should rule. In support of Pidgeon, we received amicus briefs from
one Texas Railroad Commissioner, eleven Texas Senators, forty Texas Representatives, and four then-candidates for
the Texas Legislature; fifteen “Conservative Leaders throughout Texas,” the U.S. Pastor Council, and Texas
Leadership (aka the Texas Pastor Council); the Texas Governor, Lieutenant Governor, and Attorney General; and the
Foundation for Moral Law and the Institute for Creation Research. In support of the Mayor, we received amicus briefs
from Kenneth L. Smith; the International Municipal Lawyers Association and the Texas Municipal League; Lawyers
for America; twenty-six Texas constitutional-law and family-law professors; L.J. and M.P., a Married Couple, and
Equality Texas; the De Leon plaintiffs; the Anti-Defamation League; GLBTQ Legal Advocates & Defenders, Lambda
Legal Defense and Education Fund, Inc., the National Center for Lesbian Rights, the American Civil Liberties
Union of Texas, and the American Civil Liberties Union Foundation; and three “scholars who study same-sex couples
and their families.” We also received numerous emails, letters, and postcards expressing a wide variety of views,
which we have treated as amicus briefs.
17
The Legislature recently removed these and other limitations on our jurisdiction, but that change is not
effective until September 1, 2017. Act of May 19, 2017, 85th Leg., R.S., ch. ___, § 1, 2017 Tex. Gen. Laws ___, ___.

9
or (2) the court of appeals “holds differently from a prior decision of another court of appeals or

of the supreme court.” TEX. GOV’T CODE § 22.225(c) (incorporating TEX. GOV’T

CODE § 22.001(a)(1)–(2)). One court “holds differently from another when there is inconsistency

in their respective decisions that should be clarified to remove unnecessary uncertainty in the law

and unfairness to litigants.” Id. § 22.225(e).

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

10
“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 to

hold merely that the trial court should consider De Leon as a persuasive authority when addressing

Pidgeon’s arguments. As the Mayor notes, the court of appeals suggested that it was remanding

the case “in the interest of justice” because the case “has not been fully developed.” 477 S.W.3d

at 355 n.3 (citing TEX. R. APP. P. 43.3(b); Ahmed v. Ahmed, 261 S.W.3d 190, 196 (Tex. App.—

Houston [14th Dist.] 2008, no pet.); Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex. App.—

Houston [14th Dist.] 2007, no pet.)). But without our review, Pidgeon has no assurance that the

trial court would read the court of appeals’ opinion that way. The court of appeals did not instruct

the trial court to proceed “in light of” or “considering” De Leon. Instead, it instructed the court to

proceed “consistent with” De Leon. We conclude that the court of appeals’ language gives rise to

the type of “unnecessary uncertainty in the law and unfairness to litigants” that our conflicts

jurisdiction allows us to clarify. See TEX. GOV’T CODE § 22.225(e). We thus conclude that we have

jurisdiction over this interlocutory appeal. See Harry Eldridge Co. v. T.S. Lankford & Sons, Inc.,

371 S.W.2d 878, 879 (Tex. 1963) (“[W]hen our jurisdiction is properly invoked as to one point set

forth in the application for writ of error, we acquire jurisdiction of the entire case.”).

III.
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

11
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.

A De Leon

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-

12
sex marriage[s] violates due process,” id. at 662. The Governor15 promptly appealed the injunction

to the Fifth Circuit, where it remained pending until the Supreme Court decided Obergefell.

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 296.16 That does not mean, however, that the trial

15
Rick Perry was the Texas Governor when De Leon was filed in 2013. By the time Obergefell issued in
2015, Greg Abbott was the Governor, having taken office in January of that year. Governor Abbott previously served
as Texas Attorney General, and in that capacity, he represented Governor Perry in De Leon. When Abbott became
Governor, Ken Paxton became Attorney General and began representing now-Governor Abbott in De Leon.
16
See also Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring) (“In our federal system,
a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in
whose circuit the trial court is located.”), cited by Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n.11
(1997); U. S. ex rel. Lawrence v. Woods, 432 F.2d 1072, 1076 (7th Cir. 1970) (“[B]ecause lower federal courts exercise
no appellate jurisdiction over state tribunals, decisions of lower federal courts are not conclusive on state courts.”).
Texas courts of appeals have also consistently recognized this principle. See, e.g., First Nat’l Collection Bureau, Inc.
v. Walker, 348 S.W.3d 329, 337 (Tex. App.—Dallas 2011, pet. denied) (“Although decisions of the federal courts of
appeals do not bind Texas courts, [state courts] receive them ‘with respectful consideration.’”) (quoting Hassan v.
Greater Hous. Transp. Co., 237 S.W.3d 727, 731 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)); Barstow v.
State, 742 S.W.2d 495, 501–02 (Tex. App.—Austin 1987, writ denied) (“We are not bound to follow [Fifth Circuit
precedent] merely because Texas lies within the geographical limits of the Fifth Circuit.”).

13
court should not consider De Leon when resolving Pidgeon’s claims. Fifth Circuit decisions,

particularly those regarding federal constitutional questions, can certainly be helpful and may be

persuasive for Texas trial courts. Moreover, De Leon could potentially affect the relief the trial

court might provide on remand, since De Leon has enjoined the Governor from enforcing the Texas

DOMAs and the State of Texas is thus providing benefits to state employees’ same-sex spouses.

The trial court should certainly proceed on remand “in light of” De Leon, but it is not required to

proceed “consistent with” it.

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 the

injunction order because our rules only permit a court of appeals to “reverse the trial court’s

judgment and remand the case for further proceedings.” TEX. R. APP. P. 43.2(d) (emphasis added);

compare TEX. R. APP. P. 43.2(e) (permitting courts of appeals to “vacate the trial court’s judgment

and dismiss the case” (emphases added)) with 60.2(f) (permitting this Court to “vacate the lower

court’s judgment and remand the case for further proceedings in light of changes in the law”

(emphases added)); but see TEX. R. APP. P. 43.6 (“The court of appeals may make any other

appropriate order that the law and the nature of the case require.”).

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.

14
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

15
Constitution’s original meaning, see Harper v. Va. Dept. of Taxation, 509 U.S. 86, 106–07 (1993)

(Scalia, J., concurring), but not when it changes the Constitution’s meaning as it did in

Obergefell.17 And since Obergefell is not retroactive, the Texas DOMAs remained fully in effect

at least until June 26, 2015, and the Mayor had no authority to issue or enforce the directive before

then.

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 (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

17
Pidgeon also argues that Obergefell cannot apply retroactively because otherwise (1) same-sex couples
who lived together and held themselves out as “married” in jurisdictions that recognize common-law marriage would
in fact be retroactively married; (2) any such couples who since ended their relationships and entered into new
relationships could be retroactively liable for alimony to the former “spouses” and subject to bigamy prosecutions;
and (3) jurisdictions around the country will be liable for damages to every same-sex couple that was denied a marriage
license or recognition prior to Obergefell. We express no opinions on these hypotheticals at this time, as they are
unnecessary to our resolution of this appeal.

16
force the City to recover funds it previously paid to third parties. See Hoffman v. Davis, 100 S.W.2d

94, 96 (Tex. 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.

17
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, Obergefell may have recognized a

“fundamental right” to same-sex marriage and may “require States to license and recognize same-

sex marriages,” but, Pidgeon contends, it did not recognize a fundamental right “to spousal

employee benefits” or “require States to give taxpayer subsidies to same-sex couples.” Pidgeon

argues that we should “remand for a new temporary injunction hearing” and the trial court should

“consider on remand which applications of [the Texas DOMAs] can be preserved to the extent

they prohibit taxpayer subsidies for same-sex marriages.”

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, 282

18
S.W.2d 691, 694–95 (Tex. 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.18 On the other hand, we agree with Pidgeon

that the Supreme Court did not address and resolve that specific issue in Obergefell. “Whatever

ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage

are unstated at best . . . .” Coker v. Whittington, 858 F.3d 304, 307 (5th Cir. 2017).19 The Supreme

Court held in Obergefell that the Constitution requires states to license and recognize same-sex

marriages to the same extent that they license and recognize opposite-sex marriages, but it did not

hold that states must provide the same publicly funded benefits to all married persons, and—unlike

the Fifth Circuit in De Leon—it did not hold that the Texas DOMAs are unconstitutional.

18
See, e.g., Pavan v. Smith, ___ U.S.___, 2017 WL 2722472, at *2 (2017) (per curiam) (holding that
“Obergefell proscribes” the “disparate treatment” resulting from state statute that requires listing married woman’s
husband’s name on child’s birth certificate but permits state to omit married woman’s female spouse’s name); see also
Obergefell, 135 S. Ct. at 2601 (stating that “same-sex couples are denied the constellation of benefits that the States
have linked to marriage”), 2604 (stating that DOMAs “burden the liberty of same-sex couples” and deny “all the
benefits afforded opposite-sex couples”), 2626 (Roberts, C.J., dissenting) (inviting same-sex-marriage proponents to
celebrate “the availability of new benefits”); Windsor, 133 S. Ct. at 2692 (stating that the federal “DOMA rejects the
long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples
within each State”), 2693 (stating that the federal DOMA “operates to deprive same-sex couples of the benefits and
responsibilities that come with the federal recognition of their marriages”).
19
See, e.g., Parella v. Johnson, No. 1:15-cv-0863, 2016 WL 3566861, at *9–10 (N.D.N.Y. June 27, 2016)
(holding that even after Obergefell, the “fundamental right to marry” does not include “the right to obtain a visa for
an alien spouse”); Solomon v. Guidry, 155 A.3d 1218, 1221 (Vt. 2016) (“[B]ecause civil marriage and civil unions
remain legally distinct entities in Vermont and because Obergefell mandated that states recognize only same-
sex marriage, uncertainty remains as to whether Obergefell requires other states to recognize and dissolve civil unions
established in Vermont.”); In re P.L.L.-R., 876 N.W.2d 147, 153 (Wis. Ct. App. 2015) (“Obergefell did not answer
questions regarding Wisconsin’s presumption of paternity statute.”).

19
 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

20
158, 164 (Tex. 2004)); see also Pub. Affairs Assocs. v. Rickover, 369 U.S. 111, 113 (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.

IV.
Immunity

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 hesitant to ignore the issue because governmental immunity implicates the

courts’ subject-matter jurisdiction to hear Pidgeon’s claims. See Engelman Irrig. Dist. v. Shield

Bros., — S.W.3d —, — (Tex. 2017). But neither party has briefed the issue since Obergefell,

which may also affect the immunity defenses.

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

21
after Obergefell.20 This disagreement may present the ultimate issue in this case, both on the merits

and for purposes of determining whether the Mayor has acted ultra vires.

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.

20
We note that neither the Supreme Court in Obergefell nor the Fifth Circuit in De Leon “struck down” any
Texas law. When a court declares a law unconstitutional, the law remains in place unless and until the body that
enacted it repeals it, even though the government may no longer constitutionally enforce it. Thus, the Texas and
Houston DOMAs remain in place as they were before Obergefell and De Leon, which is why Pidgeon is able to bring
this claim.

22
 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.

V.
Conclusion

In Obergefell, the Supreme Court acknowledged that our historical view of marriage has

long been “based on the understanding that marriage is a union between two persons of the

opposite sex.” 135 S. Ct. at 2594. It concluded, however, that this “history is the beginning of these

cases,” and it rejected the idea that it “should be the end as well.” Id. But Obergefell is not the end

either. Already, the Supreme Court has taken one opportunity to address Obergefell’s impact on

an issue it did not address in Obergefell, and there will undoubtedly be others. See Pavan, ___

U.S. at ___, 2017 WL 2722472, at *2.21 Pidgeon and the Mayor, like many other litigants

throughout the country, must now assist the courts in fully exploring Obergefell’s reach and

ramifications, and are entitled to the opportunity to do so.

21
On the same day the Supreme Court issued its per curiam opinion in Pavan, it also granted certiorari in
another case involving a same-sex-marriage issue Obergefell did not address. See Craig v. Masterpiece Cakeshop,
Inc., 370 P.3d 272 (Colo. App. 2015), cert. granted sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights
Comm’n, — U.S.L.W. — (U.S. June 26, 2017) (No. 16-111). The Court’s decision to hear and consider Masterpiece
Cakeshop illustrates that neither Obergefell nor Pavan provides the final word on the tangential questions Obergefell’s
holdings raise but Obergefell itself did not address.

23
 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.

_____________________
Jeffrey S. Boyd
Justice

Opinion delivered: June 30, 2017

24