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As most people in the US who read the news know by now, recently the Supreme Court of the United States determined that States could not deny marriage licenses to same-sex couples. Obergefell v. Hodges, 576 U.S. ___, No. 14-556 (June 26, 2015). The Court noted that marriage has long been recognized as a fundamental right and noted that, after court cases, it is not denied to prisoners or to members of different races. “Excluding same-sex couples from marriage thus conflicts with a central premise to the right to marry.” Id. Thus because marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress,” and because marriage in the United States is “the basis for an expanding list of governmental rights, benefits, and responsibilities,” same-sex couples are harmed when they do not have this right and that harm is without sufficient justification by the state. Id. Though they have been denied this right in the past—indeed the Texas Constitution explicitly forbids same-sex marriages—“new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” Id.
Because the US Constitution is the supreme law of the country and of each state—see U.S. Const. art VI, cl. 2.—Friday’s ruling struck down Texas’s prior ban. Yet Texas Attorney General Ken Paxton, though admitting “[a] ruling by the U.S. Supreme Court is considered the law of the land,” has decided that the Court is wrong and that the right does not exist. See Attorney General Paxton: Religious Liberties of Texas Public Officials Remain Constitutionally Protected After Obergefell v. Hodges, The Attorney General of Texas, Ken Paxton, Sunday June 28, 2015, available at https://www.texasattorneygeneral.gov/static/5144.html. He thus informs judges and clerks of this state that they may choose not to issue licenses. Id. And indeed, some clerks are refusing. See Same-sex couples face new challenges in Texas, USA Today, available at http://www.usatoday.com/videos/news/nation/2015/06/29/29496497/.
As discussed previously in this blog, Texas law allows for a couple to be married without the need for a license from the clerk’s office. See Tex. Fam. Code § 2.401. A couple need only agree to be married, live together as they are married, and represent to others that they are married. Id. See also John Riley, Texas County Clerk Says No Gay Marriages “Just Yet”, MetroWeekly, Feb. 18, 2015, available at http://www.metroweekly.com/2015/02/travis-county-clerk-says-no-gay-marriages-just-yet/ (determining that a ban on same-sex common law marriages is unconstitutional). While an informal marriage may be proven by a declaration of informal marriage by the clerk’s office, such a form is not necessary to enter into a valid informal marriage. See Tex. Fam. Code § 2.401. And because of the Full Faith and Credit Clause of the United States Constitution, a Texas informal marriage will likely be recognized in other states. See U.S. Const. art IV, § 1. And see United States v. Windsor, 570 U.S. ___, No. 12-307 (June 26, 2013). Just like it would have been had a license been issued and a couple enjoyed a ceremonial marriage.
Thus, thankfully for same-sex couples in Texas, Paxton’s statement and the refusal of clerk’s to issue licenses seems more symbolic than a real stumbling block on a couple’s road to marital bliss. While this does not justify or excuse Paxton’s refusal to follow what he admits is the law of the land, it’s heartening to know that Paxton’s personal disapproval of the Supreme Court and that individuals putting their own beliefs above the principle of equal protection of the law and their governmental duties cannot stop marriage equality in Texas.