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The Status of Same Sex Marriage in Texas

What is the state of same-sex marriage in Texas?

As things stood last week, same-sex marriages were banned under the Texas Constitution. Texas would not perform them—see Tex. Const. art. I § 32—and would not recognize same-sex marriages performed in other states—see generally Berwick v. Wagner, No. 01-12-00872-CV (Tex. App.—Houston [1st Dist.] 2014)—despite the Full Faith and Credit clause of the U.S. Constitution. But this week may have changed things in Texas, and last month, the Fifth Circuit Court of Appeals held oral arguments on a case that held Texas’s same-sex marriage ban was unconstitutional.

Just this week, two women in Travis County married after a district judge ruled that Texas’s ban on same-sex marriage was unconstitutional. See Chuck Lindell, Travis County clerk issues first legal marriage license in Texas, Statesman, Feb. 19, 2015, available at http://www.statesman.com/news/news/breaking-news/travis-county-clerk-issues-first-same-sex-marriage/nkD63/, and see Eyder Peralta, Same-Sex Couple Gets Married in Texas, After Judge Defies Gay-Marriage Ban, NPR, Feb. 19, 2015, available at http://www.npr.org/blogs/thetwo-way/2015/02/19/387570255/same-sex-couple-gets-married-in-texas-after-judge-defies-gay-marriage-ban. And see generally Tex. Const. art. I § 32. After their courthouse ceremony, Attorney General Ken Paxton asked the Supreme Court of Texas to block the Travis County judge’s ruling that had allowed them to get their marriage license. Paxton argues that the newlywed’s license and marriage is void as it is in violation of Texas law—that is, the law the Travis County judge determined was unconstitutional. The newlywed’s lawyer argues that his clients are still married and the Texas Supreme Court’s ruling has no effect on them.

            Meanwhile in federal court, the Fifth Circuit Court of Appeals had oral argument last month on DeLeon v. Perry, where one year ago a federal district judge also determined Texas’s same-sex marriage ban was unconstitutional. DeLeon v. Perry, 975 F.Supp. 632 (W.D. Tex. 2014). The court found there was no rational basis for the ban. The court noted proponents of the ban “failed to establish how recognizing a same-sex marriage can influence, if at all, whether heterosexual couples will marry, or how other individuals will raise their families.” Id. at 653. Rather, the ban “denies children of same-sex parents the protections and stability they would enjoy if their parents could marry” and hinders stable environments. Id. at 653-54. Additionally, banning same-sex marriage does not “encourage responsible procreation.” Id. at 654. Put simply, the ban “makes no sense.” Id.

            While Texas and all states have the right and obligation to define and regulate marriage, each state must do so “in a way that does not infringe on an individual's constitutional rights.” Id. at 657. The right to marry is a fundamental right and is the right to marry a chosen partner. Id. at 659-60. And see generally Loving v. Virginia, 388 U.S 1 (1967).

            Though these have been exciting developments in Texas and the Fifth Circuit, they may all soon be moot. The Supreme Court of the United States may rule this summer on the power of a state to ban same-sex marriages. See Lyle Denniston, Court will rule on same-sex marriage, SCOTUSblog, Jan. 16, 2015, available at http://www.scotusblog.com/2015/01/court-will-rule-on-same-sex-marriage/.

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