First Same-Sex Marriage License in Texas Leaves More Questions than Answers

A federal district judge in Texas rules that Texas’s Constitutional ban on same-sex marriage violated the Equal Protection Clause of the United States Constitution.  That ruling was stayed pending appeal—a common procedure in this type of case (when a law has been ruled unconstitutional, it is common to keep the law in place until the appeals process is exhausted).  This is an important note as the United States Supreme Court rejected a Petition from the state of Alabama to stay same-sex marriage until the issue is resolved by the Supreme Court of the United States.  Many believe this move by the majority of the United States Supreme Court Justices is an indication of how they might ultimately rule on whether individual states can decide whether or not same-sex couples can get married within their state.

The state of Texas still has a Constitutional ban on same-sex marriage; however, in light of the Federal District Court Judge’s ruling that Texas’s Constitutional ban violated the United States Constitution, a Travis County judge ordered the Clerk of Travis County to issue a marriage license to Sarah Goodfriend and Suzanne Bryant.  The Judge issues a “one-time” exception because Ms. Goodfriend has deteriorating health with ovarian cancer.  On Friday, Texas’s Attorney General, Ken Paxton filed a petition with the Texas Supreme Court in order to declare the marriage license issued by the Travis County Clerk to Ms. Goodfriend and Ms. Bryant to be declared void.

The Travis County Judge’s ruling along with the Attorney General’s challenge creates a multitude of legal questions from constitutional concept of federalism (state vs. national authority on particular issues) all the way down to the Texas Family Code.  For example, how do state officials deal with this couple who was married in Texas?  How about same-sex spouses who were married in other states but now reside in Texas?  Could a same-sex couple file for divorce in Texas?  What if the same sex couple was married in Texas—like Ms. Goodfriend and Ms. Bryant?  It was an easier analysis when  there was consistency across the state—the same argument is being made for people who want same-sex marriage legalized across the Country.  When a county judge makes a “one-time exception”, there tends to be a large area of gray.

So what are we left with?  According to Freedom to Marry, a pro same-sex marriage group, thirty-seven states have legalized same-sex marriage with an additional ten states (including Texas) in stages of the appeals process in the Federal Court system.    On their website, there is a useful map showing where states stand on the issue from states with legal same-sex marriage to states with lawsuits pending in difference parts of the court system.  This is an area of the law that is in constant flux from day-to-day, and will continue to be until the United States Supreme Court ultimately decides whether these statewide same-sex marriage bans violate the federal Constitution.

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