Almost two years after same-sex marriage was legalized nationwide, Texas Republicans are still fighting the ruling — and they’re getting another day in court.

The Texas Supreme Court is set to hear oral arguments on Wednesday in a Houston case challenging the city’s benefits policy for married same-sex couples. Though such policies have been in place since the U.S. Supreme Court’s landmark 2015 ruling in the case of Obergefell v. Hodges, Texas conservatives are betting the Houston case opens up a path to relitigate the high court’s decision.

“This particular opinion will go to the U.S. Supreme Court and is a potential vehicle for overturning Obergefell given the changing composition of the court,” said Jared Woodfill, one of the lawyers leading the lawsuit filed against Houston on behalf of two taxpayers, and a prominent conservative activist in the city. “Ultimately, I would like to see Obergefell overturned.”

Watch the oral arguments below:

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At the center of the Houston case is whether Obergefell, which legalized same-sex marriage across the country, requires the city and other governmental agencies to extend taxpayer-subsidized benefits to same-sex spouses of government employees.

In Obergefell, the U.S. Supreme Court in 2015 ruled that bans on marriages between couples of the same sex are unconstitutional and that states must recognize same-sex marriage as legal. Following that ruling, public employers in the state quickly extended benefits for same-sex spouses of public employees.

But opponents argue that interpretation was far too broad.

“Obergefell may require states to license and recognize same-sex marriages, but that does not require states to give taxpayer subsidies to same-sex couples — any more than Roe v. Wade requires states to subsidize abortions or abortion providers,” lawyers challenging the Houston policy wrote in a filing with the Texas Supreme Court.

They argue that the right to marry does not “entail any particular package of tax benefits, employee fringe benefits or testimonial privileges.” (In a separate case against the state’s now-defunct ban on same-sex marriage, the Texas Attorney General’s office actually argued that marriage is a right that comes with benefits the state is entitled to control.)

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A spokeswoman for Houston Mayor Sylvester Turner declined to comment on the upcoming hearing, saying the city prefers “to offer our arguments in the court and our filings.”

In those filings, lawyers for Houston have argued, in part, that there’s no legal avenue for opponents to pursue because the city’s policy is protected under Obergefell. They’ve also pointed out that the U.S. Supreme Court explicitly addressed “marriage-related benefits” in its landmark ruling, noting that the majority’s opinion explains that marriage and the rights associated with it are a “unified whole.”

“The issue here is not whether employee benefits are a fundamental right,” the lawyers wrote in a December filing. “It is simply whether same-sex spouses must be allowed the same employee benefits as opposite-sex spouses.”

The state’s highest civil court already had a say in the case when it initially declined to take it up in September. That let stand a lower court decision that upheld benefits for same-sex couples. But the court reversed course on the issue in January after an outpouring of letters opposing the decision and increasing pressure from Texas GOP leadership looking to narrow the scope of the landmark ruling that legalized same-sex marriage.

Among dozens of Republican elected officials who urged the court to reconsider the case, Gov. Greg Abbott, Lt. Gov. Dan Patrick and Texas Attorney General Ken Paxton in October filed an amicus brief asking the Texas Supreme Court to reopen the case and to clarify that Obergefell does not include a “command” to public employers regarding employee benefits.

That request came more than a year after state agencies moved to extend benefits to spouses of married gay and lesbian employees just days after the high court’s ruling. As of Aug. 31, 584 same-sex spouses had enrolled in insurance plans — including health, dental or life insurance — subsidized by the state, according to a spokeswoman for the Employees Retirement System, which oversees benefits for state employees. Houston did not provide a count of same-sex spouses who enrolled in city-subsidized benefits.

For observers, the court’s reversal was an unusual move. And it’s difficult to ignore the politics involved, considering that the legal issues in the Houston case seem to be “tap dancing around what is already a fairly established right,” said Brandon Rottinghaus, a political science professor and Texas Constitution expert at the University of Houston.

“There has been an emerging litmus test for state judges that wasn’t necessarily so apparent 20 years ago,” Rottinghaus said. “Republicans have party control of the court but not necessarily ideological control, and I think these kinds of cases are those that can be used in the future to be a bulwark for conservative activists looking to change even a Republican court to a more conservative direction.”

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Fears over the possibility of a ruling narrowing the scope of Obergefell outweigh the politics at hand for Texas residents such as Les Case.

Case, who is married to a state employee, recently recalled heading down to the Employees Retirement System office with his husband days after the Supreme Court legalized same-sex marriage. After standing in line with a half-dozen other same-sex couples, they updated their benefits to include Case on their health insurance — a move that saved the couple hundreds of dollars.

Considering his husband has worked under both political parties for almost three decades, it’s “galling” to have those benefits and his marriage threatened, Case said.

“It’s hard not to see this as a first step,” Case said. “When I saw [the news] over breakfast with my husband, I pointed to it and said, ‘Look, they’re coming after us. They’re not going to take Obergefell laying down.’”

Read related coverage:

  • The Texas Supreme Court reversed course and agreed to take up a case involving benefits for married same-sex couples after Republican leaders urged the court to reconsider its earlier decision to let a lower court decision stand. 

  • This year, Texas Republicans are focused on the so-called bathroom bill, limiting transgender residents’ access to some bathrooms. Here’s the annotated bill text to explain in plain English how the bill would impact communities across Texas.

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