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Same-sex marriage in Texas

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Title: Same-sex marriage in Texas  
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Subject: List of U.S. state laws on same-sex unions, Same-sex marriage law in the United States by state, Abortion in the United States, Same-sex unions in the United States, Same-sex marriage in Arizona
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Same-sex marriage in Texas

Counties issuing to all couples (blue) and refusing same-sex couples (pink), as of Sept. 4, 2015.
Legal status of same-sex unions
  1. When performed in Mexican states that have legalized same-sex marriage
  2. When performed in the Netherlands proper

* Not yet in effect

LGBT portal

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, however the ruling remains challenged. Texas couples began obtaining marriage licenses in some counties 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.[1]

Prior to that ruling, gay 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 are being appealed.

After the Obergefell ruling, nearly all counties started issuing marriage licenses for same-sex couples. As of 4 September 2015, Irion County is one of only two counties in the country that refuses to issue licenses to same-sex couples while continuing to license to opposite-sex couples, along with a county in Kentucky. As of August, two other counties (Loving, with 82 residents, 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.[2]


In 1997, the Texas legislature prohibited the issuance of marriage licenses to same-sex couples.[3] In 2003, the legislature enacted a statute that made void in Texas any same-sex marriage or civil union.[4] 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.[5]

During the legislature's 2013 regular session, House Bill 1300 by Representative Lon Burnam would have repealed the same-sex marriage prohibition;[6] however, the bill died in the State Affairs committee of the house of representatives.[7] Senate Bill 480 by Senator Juan Hinojosa would have repealed only the civil union prohibition;[8] however, this bill also died in committee.[9]


On November 8, 2005, Texas voters approved Texas Proposition 2 that amended the state 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."[10] 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.[11] 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.[11]

During the legislature's 2013 regular session, House Joint Resolution 77[12] by Representative Rafael Anchia, House Joint Resolution 78[13] by Representative Garnet Coleman, and Senate Joint Resolution 29[14] by Senator José R. Rodríguez would have repealed the constitutional definition of marriage; however, all these resolutions died in their respective committees.[15][16][17]

De Leon v. Perry

In November 2013, a lesbian couple married in Massachusetts and an unmarried gay couple challenged the state's same-sex marriage ban. The case, De Leon v. Perry, was assigned to Federal District Judge Orlando Garcia.[18] On February 26, Judge Garcia ruled against Texas' ban on same-sex marriage.[19] 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".[20] He stayed enforcement of his ruling pending appeal to the Fifth Circuit Court of Appeals.[21][22] 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."[23]

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.[24] The ruling of the Fifth Circuit Court requires Judge Garcia of the District Court to enter his final judgment on the case by July 17.[25]

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.[26] 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.[27] On April 25, 2014, Texas Attorney General Greg Abbott appealed the decision.[28] 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.[29]

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.[30] 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.[31][32]

The case is pending before the Texas Supreme Court.

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.[33]

The Texas Supreme Court heard oral arguments on November 5, 2013.[34] 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.[35]

Travis County cases

On February 17, 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.[36] 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.[37]

The Texas Supreme Court stayed both judges' orders on February 19, and the next day Paxton asked that court to void the Goodfriend-Bryant marriage license.[38] Responses from all parties are due April 13.[39]

Public opinion

Public opinion for same-sex marriage in Texas
Poll source Date(s)
Margin of
% support % opposition % no opinion
University of Texas/Texas Tribune October 10–19, 2014 1200 ± 3.99% 42% 47% 11%
New York Times/CBS News/YouGov September 20–October 1, 2014 4177 ± 2.2% 37% 50% 14%
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%
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%

See also


  1. ^
  2. ^ [1]
  3. ^ Texas Family Code sec. 2.001(b)
  4. ^ Texas Family Code sec. 6.204
  5. ^ Texas Family Code sec. 6.204(c)
  6. ^ House Bill 1300 - Introduced Text, 83rd Legislature, Regular Session, 2013
  7. ^ House Bill 1300 History, 83rd Legislature, Regular Session, 2013
  8. ^ Senate Bill 480 - Introduced Text, 83rd Legislature, Regular Session, 2013
  9. ^ Senate Bill 480 History, 83rd Legislature, Regular Session, 2013
  10. ^ 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."
  11. ^ a b
  12. ^ House Joint Resolution 77 - Introduced Text, 83rd Legislature, Regular Session, 2013
  13. ^ House Joint Resolution 78 - Introduced Text, 83rd Legislature, Regular Session, 2013
  14. ^ Senate Joint Resolution 29 - Introduced Text, 83rd Legislature, Regular Session, 2013
  15. ^ House Joint Resolution 77 History, 83rd Legislature, Regular Session, 2013
  16. ^ House Joint Resolution 78 History, 83rd Legislature, Regular Session, 2013
  17. ^ Senate Joint Resolution 29 History, 83rd Legislature, Regular Session, 2013
  18. ^
  19. ^
  20. ^
  21. ^
  22. ^
  23. ^
  24. ^
  25. ^
  26. ^
  27. ^
  28. ^ State Attorney General Challanges Bexar County Same-Sex Divorce
  29. ^
  30. ^ , reported by James C. McKinley Jr., October 2, 2009The New York Times"Texas Battle on Gay Marriage Looms",
  31. ^ , 326 S.W.3d 654 (Tex. App. - Dallas (5th Dist.) 2010)In re Marriage of J.B. and H.B.
  32. ^
  33. ^
  34. ^
  35. ^
  36. ^
  37. ^
  38. ^
  39. ^

External links

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