Same-Sex Marriages in Texas

January 11th, 2011

No “I Do’s” for Same Sex Marriages in Texas.

Before you get those bath towels monogrammed: Mr. and Mr. or Mrs. and Mrs., if you live in the state of Texas, there are few things you should consider.

The conservative state of Texas opposes same-sex marriages or civil unions. Same-sex marriages are contrary to the state’s public policy and are considered void.  If the nuptials are void, a couple may not enjoy normal legal spousal rights, enforceability, protection or acknowledgements.

Rewind a bit and start with what is considered “same-sex” in the state of Texas.  It is only natural for one to think of same-sex as two individuals who were born under the same gender classification. Two males are not permitted to marry one another nor may two women marry one another, although it is not so clear-cut in the Lone Star state.  

The ambiguities commence when you first seek to obtain a marriage license.  To receive a Texas marriage license you must submit a form of identification.  This is where the process gets complex.  There are several types of identification you can offer; a couple of examples are a copy your birth certificate or your driver’s license (in state or out of state).  If either or both of these forms of sex/gender identification matches with your fiancé’s sex/gender, reconsider sending out those wedding invitations.

According to the current list of forms of identification, there are many couples whose marriage license application would appear complete and valid, but who in fact cannot lawfully marry.  Earlier this year in El Paso, Texas, two people who appeared to be women, with the same genital organs applied for a marriage license.  By Texas standards, ‘you are what you are born’; the two individuals did not deem it problematic or expect controversy since one of them was born a male.  To be clear and safe from any procedural violations as to how to deal with the situation, El Paso County officials sought guidance from Texas Attorney General, Greg Abbott.  Abbott declined to opine due to a pending case litigating a similar issue.  The case Attorney General Abbott was referring to was the case in Wharton County where the validity of a widow’s marriage to a fallen firefighter is being contested as she was born a man and two males cannot legally marry in the state of Texas.  The widow had undergone Reassignment Surgery (RAS) and is living as a female. For many, because the widow was born a man, the Wharton County case has nothing to do with the situation in El Paso. In El Paso, the couple were born of the opposite sex according to their birth certificates (which is supposed to the determining factor), whereas, in Wharton County both were born male. Attorney, Chad Ellis, states that there is nothing in the law that mentions anything about allowing someone to legally change their gender.  Alternatively, nothing is mentioned about disallowing a person to legally change their gender. 

On September 1, 2010, the Court of Appeals for the Fifth District of Texas overturned a 2009 ruling in the Dallas District Court.  The Dallas court ruled it had jurisdiction over a same-sex divorce and that the marriage ban violates the Equal Protection Clause of the US Constitution.  The Texas Court of Appeals ruled that the state ban on same-sex marriage does not violate the US Constitution and rationalizes it’s favoring of opposite-sex couples because of their natural ability to procreate.   The court found that a person’s sexual orientation does not affect his or her ability to contribute to society, but it will determine whether or not that person will enter a relationship that is naturally open to procreation; preserving the state’s interest in “fostering relationships that will serve children best” and its legitimate interest in child rearing. 

In 2009, the U.S. Census reported a total 581,300 same-sex partnered households while only 17% of them included children whether biological, adopted, or step-child. An article in the Journal of American Academy of Pediatrics (AAP) stated that children growing up in same-sex households have been described as being more tolerant of diversity and more nurturing to younger children than those raised in opposite-sex households.

Despite the state’s ban, some Texas cities are being recognized for what may seem contrary to its stance. According to the 2006 U.S. Census data, San Antonio, Texas had the highest number of gay couples raising children in the nation; Houston ranked number 4 and the Arlington and Fort Worth area as number 5.

Will Texas lift the ban on same-sex marriages and civil unions?  Will it boil down to Texas defining same-sex as to what gender is marked on their original birth certificate and/or acknowledge transgender persons to be recognized as they view themselves?  Or, will Texas lift its state ban against same-sex marriage altogether?  For the time being, whether you are homosexual, transgendered, or a transgender person who appears to be gay, things get pretty fuzzy in the Alamo State when trying to legalize a union or seek to have a union legally acknowledged and/or enforced.

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