Texas Attorney General Greg Abbott. (credit: Brendan Smialowski/Getty Images)

Texas Attorney General Greg Abbott. (credit: Brendan Smialowski/Getty Images)

NORTH TEXAS (CBSDFW.COM) – Last year a state senator requested Texas Attorney General Greg Abbott issue a general opinion on local schools and governments offering benefits to same-sex partners. Monday the AG wrote that the offering of insurance benefits to the domestic partners of employees is a violation of the state constitution.

Abbott’s opinion cites a 2005 amendment to the Texas constitution that defines marriage as between a man and a woman. Part of his opinion read,

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.”

Texas constitutional law professor Gerald Treece thinks the issue is a more complicated and says the 14th Amendment must also be a consideration. The Equal Protection Clause of the Amendment requires each state to provide equal protection under the law to all people within its jurisdiction.

“The thing about equal protection is, you can’t get away with [using] stereotypes once you move into what governments do,” Treece said. “What I’m saying is totally separate in the private sector, because the private sector has been moving for years toward recognizing equal benefits in the workforce – not because they have to but because they chose to.”

Abbott’s opinion says the Texas constitution “explicitly” prohibits municipalities and public school districts from “creating or recognizing a legal status identical or similar to marriage.”

Some people think back to a “don’t ask, don’t tell” policy when it comes to government. Treece said, “Many states have already taken the position that… it’s one thing to say, ‘look we don’t have gay marriage,’ but they also turn around and do not deny equal benefits to gay couples.”

The same evening the opinion was issued Fort Worth City Councilman Joel Burns released a statement saying that while he wasn’t surprised by the Abbott’s opinion, he was “disappointed.”

Burns statement also was very clear on how the he feels the same-sex benefits opinion was tied to Abbott’s aspirations for a higher office. “He is more interested in dividing Texans for political gain than bringing them together to make Texas stronger and more prosperous,” Burns said.

House Bill 1568 was filed in February. The bill would cut off health care funding to Texas school districts if they allow employees to add a domestic partner to their health care plan. The bill was meant to target the Pflugerville Independent School District, which was the first in the state to offer health benefits for domestic partners.

In addition to the Pflugerville ISD, Dallas County, the cities of Fort Worth, Austin and El Paso currently all offer extended some benefits to homosexual couples. Burns said, “Here in Fort Worth we value every citizen which makes every family stronger.”

Abbott’s opinion is nonbinding and ACLU of Texas Legal and Policy Director Rebecca L. Robertson stated clearly, “The good news is that AG opinions do not have the force the law, so unless a Texas court issues a ruling on the subject, there shouldn’t be any legal impediment to government employers continuing to do the right thing for their employees.”

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