Senior Staff Reporter (2018 – 2019)
In its landmark decision, Obergefell v. Hodges, the Supreme Court of the United States has decided that same-sex couples have the fundamental right to marry.1 This decision means that the states (1) cannot refuse any same-sex couple the ability to obtain a marriage license and (2) must recognize any lawful marriages of same-sex couples performed in another state.2 So how has this decision affected Texas residents?3 As it turns out, many problems arise when the Court recognizes a previously prohibited type of marriage. For instance, several provisions of the Texas Constitution and Family Code are now unconstitutional, because these statutes exclusively define marriage as a union between “a man and a woman.”4
In addition, will the newly validated marriage of a same-sex couple in Texas be recognized retroactively?5 In Texas, opposite-sex couples are considered “married” under the law without a valid marriage license, as long as they can establish an informal marriage.6 Informal marriages require the couple to show they agreed to enter into a marital relationship, lived together in Texas, and represented to others they were married.7 Since Obergefell, Texas courts have agreed that current informal marriages of same-sex couples (couples who were still cohabitating at the time Obergefell was decided) should be recognized.8 But what if a couple who once met the requirements separated before same-sex marriages became legal? What if one spouse passed away before the Obergefell decision?
Even if Texas recognizes these marriages, there are continuing legal effects. The previous ban will interfere in matters of divorce, children’s parentage, the ability to remarry, and accumulation of property.9 Additionally, questions regarding the applicability of the legal benefits of marriage (e.g., marital tax credit, filing taxes jointly, social security benefits, IRA benefits, legal decision-making benefits, inheritance benefits, health insurance benefits, paternity child benefits, and leave benefits) will arise.10
Legal history could provide an idea of how Texas will handle this. In the 1800s, Texas decided how the previously unrecognized informal marriages of slaves would be handled after the Emancipation Proclamation.11 The Texas Legislature eventually decided to recognize (1) marriages where the couple continued to cohabitate at the time of the legislation’s passage and (2) marriages where one spouse died prior to the legislation’s passage.12
Texas may likely follow its own precedent and address today’s problems by recognizing the informal marriages of same-sex couples (1) who continued to cohabitate at the time of the Obergefell decision; (2) where one spouse passed away prior to Obergefell’s decision; and/or (3) where the post-Obergefell marriage was otherwise voided by a previous marriage predating Obergefell. However, it remains to be seen how Texas will answer these new questions. Texas residents should continue to keep an eye out for legislative action on the matter, as well as Texas courts’ interpretation and application of Obergefell’s mandate.
1 See Obergefell v. Hodges, 135 S.Ct. 2584, 2591 (2015).
3 Mallory, Brown, Russell & Sears, The Williams Institute, The Impact of Stigma and Discrimination Against LGBT People in Texas (2017), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Texas-Impact-of-Stigma-and-Discrimination-Report-April-2017.pdf (stating that approximately 770,000 Texas residents identify as LGBTQ); Lauren Phillips, 2,500 Same-Sex Marriage Licenses Issued in Texas, State Estimates, Dallas Morning News, September 2015, https://www.dallasnews.com/news/texas/2015/09/13/2500-same-sex-marriage-licenses-issued-in-texas-state-estimates (stating that approximately 5,000 Texas residents applied for a marriage license as of September 2015).
4 Tex. Const. art 1, §32; Tex. Fam. Code §2.001, 2.401, 6.204; Obergefell, 135 S.Ct. at 2591.
5 Team 5, B.R.R. Family Law Inn of Court, OBERGEFELL: WHERE WE ARE AND WHERE WE NEED TO BE, (March 22, 2018); Powell v. Long, No. 02-14-00397-CV, 2015 WL 4776109 (Tex. App.—Fort Worth Aug. 13, 2015, no pet. h.); In re A.L.F.L., No. 04-14-00364-CV, 2015 WL 4561231 (Tex. App.—San Antonio July 29, 2015, pet. granted).
6 Tex. Fam. Code §2.401, 2.402.
8 See Parker v. Pidgeon, 477 S.W.3d 353 (Tex. App.—Houston [14th Dist.] 2015, no pet. h.); Ranolls v. Dewling, 223 F. Supp. 3d 613 (E.D. Tex. September 22, 2016); Freeman v. Turner, Case No. 4:17-cv-02448 (S.D. Tex. August 10, 2017); Ramirez v. State, 2018 WL 637367 (Tex. App.—Corpus Christi Jan. 31, 2018, no pet. h.).
9 Hon. Kathleene Dennise Garcia, Case Law Post-Obergefell, 2017 TXCLE Adv. Fam. L. 21 III (2017).
10 Frequently Asked Questions Regarding Texas Marriage (Dec. 30, 2017), https://www.bryanfagan.com/family-law-blog/2017/december/frequently-asked-questions-regarding-texas-marri/.
11 Hill v. Fairfax, 38 Tex. 220 (Tex. 1873); Livingston v. Williams, 75 Tex. 653 (Tex. 1890); Cumby v. Garland, 6 Tex. Civ. App. 519 (1894); Coleman v. Vollmer, 31 S.W. 413 (Tex. Civ. App. 1895); Wood v. Cole, 25 Tex. Civ. App. 378 (1901); Waff v. Sessums, 28 Tex. Civ. App. 183 (1902).
12 Tex. Const. art 12, §27; Darlene C. Boring, Louisiana State University Law Center, The History of Slave Marriages in the United States (2006).