Same-sex marriage in Texas
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 with the single exception of Irion County.
Statute
In 1997, the Texas Legislature prohibited the issuance of marriage licenses to same-sex couples. In 2003, the Legislature enacted a statute that made void in Texas any same-sex marriage or civil union. 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jurisdictions.During the Legislature's 2013 regular session, House Bill 1300 by Representative Lon Burnam would have repealed the same-sex marriage prohibition, however, the bill died in the State Affairs Committee of the House of Representatives. Senate Bill 480 by Senator Juan Hinojosa would have repealed only the civil union prohibition; however, this bill also died in committee.
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.
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."During the Legislature's 2013 regular session, House Joint Resolution 77 by Representative Rafael Anchia, House Joint Resolution 78 by Representative Garnet Coleman, and Senate Joint Resolution 29 by Senator José R. Rodríguez would have repealed the constitutional definition of marriage, however, all these resolutions died in their respective committees.
''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. On February 26, Judge Garcia ruled against Texas's ban on same-sex marriage. 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". He stayed enforcement of his ruling pending appeal to the Fifth Circuit Court of Appeals. 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."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. 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.
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. 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. On April 25, 2014, Texas Attorney General Greg Abbott appealed the decision. 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.''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. 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.On July 3, 2013, the Texas Supreme Court sua sponte ordered supplemental merits briefing in light of United States v. Windsor.
''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.The Texas Supreme Court heard oral arguments on November 5, 2013. 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.
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. 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.
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. Responses from all parties were due on April 13, 2015. In April 2016, the Texas Supreme Court dismissed Paxton’s effort to void the marriage.
Issuance by county
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. 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. Loving and Mills counties refused to license same-sex couples into August, claiming to have delayed implementation while they updated paperwork or software, but they had started issuing by September 4.After that date, Irion County was the sole holdout, with reports that the situation was still in effect two years later. Since Alabama replaced marriage licenses with marriage certificates and required that all counties issue them, Irion County is now the only remaining county in the country that does not allow same-sex couples to marry.
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. 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.