Same-sex marriage in Texas

Counties issuing to all couples (blue) and refusing same-sex couples (pink), as of June 22, 2016.^[1]

Same-sex marriage is legal in Texas and all other U.S. states as per the U.S. Supreme Court ruling of Obergefell v. Hodges on June 26, 2015. Same-sex couples began obtaining marriage licenses in some counties of the state within hours of the ruling, while other counties awaited direction from state officials, local county attorney advice, or were awaiting corrected state marriage license forms. In one or more counties, local officials or judges refused to marry same-sex couples on religious grounds. Attorney General Ken Paxton issued an opinion supporting officials who refused to grant marriage licenses in defiance of the Obergefell ruling.^[2]

Prior to that ruling, same-sex marriage was not legal in Texas, although a state court ordered the Travis County clerk to issue one marriage license to two women on February 19, 2015, citing the illness of one of them. On February 26, 2014, Judge Orlando Garcia, of the United States District Court for the Western District of Texas, found that Texas's ban on same-sex marriage was unconstitutional. On April 23, 2014, Judge Barbara Nellermoe, of the 45th Judicial District Court of Bexar County, found that Texas's ban on same-sex marriage was unconstitutional. Both cases were appealed.

After the Obergefell ruling, nearly all counties started issuing marriage licenses to same-sex couples. As of June 22, 2016, Irion County is the only holdout in Texas.^[3][4] It is one of the only counties in the country that refuse to issue marriage licenses to same-sex couples, the others being in Alabama. As of August 2015, two other Texas counties (Loving and Mills) had also refused to license same-sex couples, claiming to have delayed implementation while they updated paperwork or software, but they had started issuing by September 4.^[5]

Statute

In 1997, the Texas Legislature prohibited the issuance of marriage licenses to same-sex couples.^[6] In 2003, the Legislature enacted a statute that made void in Texas any same-sex marriage or civil union.^[7] This statute also prohibits the state or any agency or political subdivision of the state from giving effect to same-sex marriages or civil unions performed in other jurisdictions.^[8]

During the Legislature's 2013 regular session, House Bill 1300 by Representative Lon Burnam would have repealed the same-sex marriage prohibition;^[9] however, the bill died in the State Affairs Committee of the House of Representatives.^[10] Senate Bill 480 by Senator Juan Hinojosa would have repealed only the civil union prohibition;^[11] however, this bill also died in committee.^[12]

Constitution

On November 8, 2005, Texas voters approved the Texas Proposition 2 that amended the Texas Constitution to define marriage as consisting "only of the union of one man and one woman" and prohibiting the state or any political subdivision of the state from creating or recognizing "any legal status identical or similar to marriage."^[13] The Save Texas Marriage political action committee, which opposed the amendment, argued before the vote that the poorly drafted amendment would ban all forms of marriage, a view the Texas attorney general rejected when the language was considered by the Texas Senate.^[14] Kelly Shackleford, the president of the Free Market Foundation and a supporter of the amendment, said, "The words clearly recognize marriage in Texas as between a man and a woman...." and do not ban marriage in general.^[14]

During the Legislature's 2013 regular session, House Joint Resolution 77^[15] by Representative Rafael Anchia, House Joint Resolution 78^[16] by Representative Garnet Coleman, and Senate Joint Resolution 29^[17] by Senator José R. Rodríguez would have repealed the constitutional definition of marriage; however, all these resolutions died in their respective committees.^[18][19][20]

De Leon v. Perry

In November 2013, a lesbian couple married in Massachusetts and an unmarried same-sex couple challenged the state's same-sex marriage ban. The case, De Leon v. Perry, was assigned to Federal District Judge Orlando Garcia.^[21] On February 26, Judge Garcia ruled against Texas's ban on same-sex marriage.^[22] Garcia agreed with the plaintiffs' argument that homosexuals are a suspect class entitled to a more exacting standard of review, heightened scrutiny, but found that the state's arguments fail "even under the most deferential rational basis level of review" regarding equal protection. Regarding due process and the denial of a fundamental right, he wrote that the state's ban must be reviewed under the strict scrutiny standard. He ruled that the state has "failed to identify any rational, much less a compelling, reason that is served by denying same-sex couples the fundamental right to marry".^[23] He stayed enforcement of his ruling pending appeal to the Fifth Circuit Court of Appeals.^[24][25] Attorney General Greg Abbott said the state would appeal the decision. Governor Rick Perry said: "The 10th Amendment guarantees Texas voters the freedom to make these decisions, and this is yet another attempt to achieve via the courts what couldn't be achieved at the ballot box. We will continue to fight for the rights of Texans to self-determine the laws of our state."^[26]

The case was still pending in the Fifth Circuit when the U.S. Supreme Court ruled on June 26, 2015, in Obergefell v. Hodges that the denial of marriage rights to same-sex couples is unconstitutional. On July 1, the Fifth Circuit affirmed the district court judgment in favor of the plaintiffs.^[27] The ruling remanded the case back to Judge Garcia, with instructions to issue a final order striking down Texas's marriage ban. Garcia had already lifted the stay of his previous order hours after Obergefell was decided, and promptly issued the final order.^[28]

State lawsuits

In the Matter of the Marriage of A.L.F.L. and K.L.L.

On February 18, 2014, a same-sex couple, married in Washington D.C., filed for divorce and child custody lawsuit.^[29] On April 23, 2014, Judge Barbara Nellermoe, of the 45th Judicial District Court of Bexar County, ruled that three portions of the Texas Family Code, as well as Section 32 of the Texas Constitution, were unconstitutional.^[30] On April 25, 2014, Texas Attorney General Greg Abbott appealed the decision.^[31] On May 15, 2014, Judge Nellermoe rejected a push by state officials to block a same-sex couple's divorce and child-custody case from proceeding. She also set a May 29 custody hearing in San Antonio for the fight between the couple over custody of their daughter.^[32]

In Re Marriage of J.B. and H.B.

In 2009, a same-sex couple that had married in Massachusetts filed for divorce in Dallas, but before the district court could grant the divorce the Texas Attorney General intervened and challenged the court's jurisdiction to do so. On October 2, 2009, the district court ruled, in the case of In Re Marriage of J.B. and H.B. that, to the extent Texas laws purported to prevent two men who were legally married in Massachusetts from getting a divorce in Texas, those laws were unconstitutional.^[33] The Texas Attorney General appealed and on August 31, 2010, the Fifth Court of Appeals reversed the lower court, ruling that the same-sex marriage ban does not violate the Equal Protection Clause of the Fourteenth Amendment.^[34][35]

On July 3, 2013, the Texas Supreme Court sua sponte ordered supplemental merits briefing in light of United States v. Windsor.^[36]

Texas v. Naylor

In Austin, another same-sex couple married in Massachusetts filed for divorce, and the district court actually granted the divorce before the Attorney General could intervene. The Attorney General appealed that decision too, but on January 7, 2011, the Third Court of Appeals in Austin, in the case of Texas v. Naylor held that the state had no right to intervene in the case, to challenge the divorce on appeal.^[37]

The Texas Supreme Court heard oral arguments on November 5, 2013.^[38] On June 19, 2015, the Supreme Court upheld the lower court in a 5-3 decision, stating that the Attorney General did not have standing to intervene. The divorce has been granted, although the marriage has never been recognized by the State of Texas.^[39]

Travis County cases

On February 17, 2015, Travis County Probate Judge Guy Herman, hearing a disputed estate case, found the state's refusal to recognize same-sex marriage unconstitutional and recognized the common law marriage of two women for the purpose of inheritance.^[40] Attorney General Ken Paxton intervened to overturn his action.

Two days later, State District Judge David Wahlberg ordered the Travis County clerk to issue a marriage license to two women, Sarah Goodfriend and Suzanne Bryant, citing the severe illness of one of them. The license was issued and the women wed that day.^[41]

The Texas Supreme Court stayed both judges' orders on February 19, 2015, and the next day Paxton asked that court to void the Goodfriend-Bryant marriage license.^[42] Responses from all parties were due April 13, 2015.^[43]

Marriage statistics

According to the Texas Department of State Health Services, approximately 2,500 same-sex couples married in Texas in the first three months after the U.S. Supreme Court ruling.^[44] This accounted for about 6% of all issued marriage licenses in the state. Tarrant County, Texas' third-most populous county, issued 300 same-sex marriage licenses. Harris and Travis were the top counties for same sex marriages in the state.

Public opinion

See also

• LGBT rights in Texas
• Recognition of same-sex unions in Texas
• Status of same-sex marriage
• Timeline of same-sex marriage

References

External links

• De Leon v. Perry, U.S. District Court, February 26, 2014

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