Same-sex marriage has been legal in the U.S. state of Texas since the U.S. Supreme Court ruling of Obergefell v. Hodges on June 26, 2015.

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.

Within a few months of the Obergefell ruling, all counties had started issuing marriage licenses to same-sex couples except for Irion County.

Statute

In 1997, the Texas Legislature prohibited the issuance of marriage licenses to same-sex couples.[1] In 2003, the Legislature enacted a statute that made void in Texas any same-sex marriage or civil union.[2] 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.[2]

During the Legislature's 2013 regular session, House Bill 1300 by Representative Lon Burnam would have repealed the same-sex marriage prohibition,[3] however, the bill died in the State Affairs Committee of the House of Representatives.[4] Senate Bill 480 by Senator Juan Hinojosa would have repealed only the civil union prohibition;[5] however, this bill also died in committee.[6]

In December 2016, Senator José R. Rodríguez filed a bill in the Texas Legislature to formally abolish the state's ban on same-sex marriage.[7]

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."[8]

During the Legislature's 2013 regular session, House Joint Resolution 77[9] by Representative Rafael Anchia, House Joint Resolution 78[10] by Representative Garnet Coleman, and Senate Joint Resolution 29[11] by Senator José R. Rodríguez would have repealed the constitutional definition of marriage, however, all these resolutions died in their respective committees.[12][13][14]

De Leon v. Perry

Main article: 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.[15] On February 26, Judge Garcia ruled against Texas's ban on same-sex marriage.[16] 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".[17] He stayed enforcement of his ruling pending appeal to the Fifth Circuit Court of Appeals.[18][19] 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."[20]

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.[21] 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.[22]

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.[23] 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.[24] On April 25, 2014, Texas Attorney General Greg Abbott appealed the decision.[25] 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.[26]

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.[27] 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.[28][29]

On July 3, 2013, the Texas Supreme Court sua sponte ordered supplemental merits briefing in light of United States v. Windsor.[30]

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.[31]

The Texas Supreme Court heard oral arguments on November 5, 2013.[32] 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.[33]

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.[34] 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.[35]

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.[36] Responses from all parties were due on April 13, 2015.[37] In April 2016, the Texas Supreme Court dismissed Paxton’s effort to void the marriage.[38]

Issuance by county

Prior to 2020, only Irion County (pink) had stated it would refuse to issue licenses to same-sex couples.
Prior to 2020, only Irion County (pink) had stated it would refuse to issue licenses to same-sex couples.

Many counties started issuing same-sex marriage licenses within hours of the Obergefell ruling on June 26, 2015, while others awaited direction from state officials, local county attorney advice, or issuance of corrected state marriage license forms. Attorney General Ken Paxton issued an opinion supporting officials who refused to grant marriage licenses on religious grounds, in defiance of the Obergefell ruling.[39] Two counties adopted this reason for not issuing licenses, Hood and Irion, but Hood backed down when threatened with a lawsuit. No marriage applications have yet been made by same-sex couples in Irion County.[40][41] Loving and Mills counties refused to license same-sex couples into August, with county officials stating that they were delaying implementation while they updated paperwork or software, but they had started issuing by September 4.[42] After that date, Irion County was the sole holdout, with reports that the situation was still in effect two years later.[42][43][44] Since Alabama replaced marriage licenses with marriage certificates and required that all counties issue them, Irion County was then the only remaining county in the country that would not allow same-sex couples to marry. As of 2020, Irion County has a new county clerk and will now willingly issue marriage licenses to all couples.[45]

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.[46] 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.

From June 2015 to June 2016, 248 same-sex couples wed in El Paso County.[47]

Public opinion

See also: Public opinion of same-sex marriage in the United States

Public opinion of same-sex marriage in Texas
Poll source Date(s)
administered
Sample
size
Margin of
error
% support % opposition % no opinion
Public Religion Research Institute April 5-December 23, 2017 4,944 ? 55% 34% 11%
Texas Tech University March 20 – April 13, 2017 442 ± 4.6% 64% 28% 4%
Public Religion Research Institute May 18, 2016 – January 10, 2017 6,956 ? 50% 39% 11%
Public Religion Research Institute April 29, 2015 – Jan 7, 2016 2,782 ? 46% 45% 9%
University of Texas/Texas Tribune October 30 – November 8, 2015 1,200 ± 2.83% 43% 43% 14%
Texas Lyceum September 8–21, 2015 1,000 ± 3.1% 49% 40% 11%
University of Texas/Texas Tribune June 5–14, 2015 1,200 ± 2.83% 44% 41% 14%
University of Texas/Texas Tribune October 10–19, 2014 1,200 ± 3.99% 42% 47% 11%
New York Times/CBS News/YouGov September 20 – October 1, 2014 4,177 ± 2.2% 37% 50% 14%
Public Religion Research Institute April 2, 2014 – January 4, 2015 3,575 ? 48% 43% 8%
Texas Tech March 6 – April 3, 2014 454 ± 4.6% 48% 47% 5%
Public Religion Research Institute November 12 – December 18, 2013 297 ± 6.6% 48% 49% 4%
Public Policy Polling June 28 – July 1, 2013 500 ± 4.4% 34% 57% 9%
Glengariff Group, Inc. January 24–27, 2013 1,000 ± 3.1% 47.9% 47.5% 4.6%
Public Policy Polling January 24–27, 2013 500 ± 4.4% 35% 55% 10%
Public Policy Polling September 15–18, 2011 569 ± 4.1% 29% 61% 10%
Glengariff Group, Inc. August 29 – September 2, 2010 1,000 ± 3.1% 42.7% 52.7% 4.6%

See also

References

  1. ^ "FAMILY CODE CHAPTER 2. THE MARRIAGE RELATIONSHIP".
  2. ^ a b "FAMILY CODE CHAPTER 6. SUIT FOR DISSOLUTION OF MARRIAGE".
  3. ^ House Bill 1300 – Introduced Text, 83rd Legislature, Regular Session, 2013
  4. ^ "Texas Legislature Online – 83(R) Actions for HB 1300".
  5. ^ Senate Bill 480 – Introduced Text, 83rd Legislature, Regular Session, 2013
  6. ^ "Texas Legislature Online – 83(R) Actions for SB 480".
  7. ^ Bills seek to stop bullying, protect LGBT rights El Paso Times
  8. ^ Article I, Section 32 of the Texas Constitution states: "(a) Marriage in this state shall consist only of the union of one man and one woman. (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."
  9. ^ House Joint Resolution 77 – Introduced Text, 83rd Legislature, Regular Session, 2013
  10. ^ House Joint Resolution 78 – Introduced Text, 83rd Legislature, Regular Session, 2013
  11. ^ Senate Joint Resolution 29 – Introduced Text, 83rd Legislature, Regular Session, 2013
  12. ^ "Texas Legislature Online – 83(R) Actions for HJR 77".
  13. ^ "Texas Legislature Online – 83(R) Actions for HJR 78".
  14. ^ "Texas Legislature Online – 83(R) Actions for SJR 29".
  15. ^ Parker, Kolten (December 11, 2013). "Federal judge sets hearing on Texas same-sex marriage ban". mysanantonio.com. Retrieved January 18, 2014.
  16. ^ Brubaker Calkins, Laurel (27 February 2014). "Texas Gay-Marriage Ban Held Illegal as Judge Delays Order". Bloomberg News. Retrieved 9 March 2014.
  17. ^ Orlando Luis Garcia (26 February 2014). "United States District Court for the Western District of Texas Case 5:13-cv-00982-OLG, Doc 73 – ORDER on Preliminary Injunction". United States District Court for the Western District of Texas. scribd.com. Retrieved 11 March 2014.
  18. ^ Garrett, Robert (February 26, 2014). "Federal judge voids Texas' gay marriage ban, though he delays order from taking effect immediately". Dallas News. Retrieved February 26, 2014.
  19. ^ Lindell, Chuck (February 26, 2014). "Judge overturns Texas ban on gay marriage". Austin American Statesman. Retrieved February 26, 2014.
  20. ^ Snow, Justin (February 26, 2014). "Federal court finds Texas ban on same-sex marriage unconstitutional". Metro Weekly. Archived from the original on February 26, 2014. Retrieved February 26, 2014.
  21. ^ "Texas 5th Circuit Opinion". Equality Case Files. Retrieved July 1, 2015.
  22. ^ Alexa Ura (1 July 2015). "Texas Concedes Legal Challenge to Same-Sex Marriage Ban". Texas Tribune.
  23. ^ "Lawsuits Pending". Retrieved May 16, 2014.
  24. ^ "Judge: Texas can't bar gay marriage — or divorce". Retrieved May 16, 2014.
  25. ^ State Attorney General Challanges [sic] Bexar County Same-Sex Divorce Archived 2014-05-17 at the Wayback Machine
  26. ^ "Texas judge blocks state from intervening in gay couple's divorce case". Retrieved May 16, 2014.
  27. ^ "Texas Battle on Gay Marriage Looms", The New York Times, reported by James C. McKinley Jr., October 2, 2009
  28. ^ "Google Scholar".
  29. ^ Appleton, Roy (September 1, 2010). "Dallas judge's ruling saying gay couple could divorce in Texas rejected on appeal". The Dallas Morning News. Retrieved January 19, 2013.
  30. ^ Order for Supplementary Briefing by Texas Supreme Court July 3, 2013
  31. ^ Kreytak, Steven (January 7, 2011). "Same-sex divorce stands under appellate ruling: Attorney general did not have standing to intervene in case, court declares". Austin American-Statesman. Retrieved January 19, 2013.
  32. ^ Rozen, Miriam (December 17, 2012). "Tex Parte Blog: Lawyer in two same-sex divorce cases awaits Texas Supreme Court decision on petitions for review". Texas Lawyer. Archived from the original on October 20, 2013. Retrieved January 19, 2013.
  33. ^ Robert T. Garrett. "Texas Supreme Court upholds Austin judge's grant of divorce to two lesbians". Trail Blazers Blog.
  34. ^ Riley, John (February 18, 2015). "Texas County Clerk Says No Gay Marriages 'Just Yet'". Metro Weekly. Retrieved February 18, 2015.
  35. ^ Lindell, Chuck (February 19, 2015). "Travis County clerk issues first legal gay marriage license in Texas". Austin American-Statesman. Retrieved February 19, 2015.
  36. ^ "Petition for Writ of Mandamus". Scribd.com. Texas Supreme Court. February 20, 2015. Retrieved February 28, 2015.
  37. ^ "Texas Supreme Court marriage cases". Equality Case Files. Retrieved March 9, 2015.
  38. ^ Court Tosses Challenge to Couple's Same-Sex Marriage License
  39. ^ "Texas attorney general defiant over court's same-sex marriage decision". The Washington Post. June 28, 2015. Retrieved June 28, 2015.
  40. ^ Young, Stephen (April 12, 2017). "Texas Senate Approves Recusals For County Clerks Opposed to Same-Sex Marriage". Dallas Observer.
  41. ^ Reinhard, Chelsea (July 9, 2015). "The Last Stand Against Gay Marriage in Irion County, Texas". sanangelolive.com.
  42. ^ a b "Local government responses to Obergefell v. Hodges". ballotpedia.org. July 1, 2015 – June 26, 2017.
  43. ^ "Irion County clerk cites beliefs, constitution in not issuing same-sex marriage licenses".
  44. ^ "WATCH: The Next 'Kim Davis:' Texas Clerk Molly Criner".
  45. ^ "Irion County, Texas". www.co.irion.tx.us. Retrieved 2020-11-15.
  46. ^ "2,500 same-sex marriage licenses issued in Texas, state estimates". The Dallas Morning News. 13 September 2015.
  47. ^ 248 same-sex couples marry in county in past year El Paso Times