Same-sex marriage in Texas

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Legal status of
same-sex relationships
Previously performed and not invalidated
  1. Can be registered also in Aruba, Curaçao and Sint Maarten
  2. Licensed in some counties in Kansas but same-sex marriage is not recognized by the state
  3. Only legal in St. Louis, Missouri
  4. When performed in Mexican states that have legalized same-sex marriage

*Not yet in effect

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Same-sex marriage is currently not legal in Texas. 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.[1] 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.[2] Both cases are being appealed by Texas Attorney General Greg Abbott.[3][4]


In 1997, the Texas legislature prohibited the issuance of marriage licenses to same-sex couples.[5] In 2003, the legislature enacted a statute that made void in Texas any same-sex marriage or civil union.[6] 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.[7]

During the legislature's 2013 regular session, House Bill 1300 by Representative Lon Burnam would have repealed the same-sex marriage prohibition;[8] however, the bill died in the State Affairs committee of the house of representatives.[9] Senate Bill 480 by Senator Juan Hinojosa would have repealed only the civil union prohibition;[10] however, this bill also died in committee.[11]


On November 8, 2005, Texas voters approved Texas Proposition 2 that amended the state 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."[12] The Save Texas Marriage political action committee, which opposed the amendment, argued before the vote that the poorly drafted amendment would ban all forms of marriage, a view the Texas attorney general rejected when the language was considered by the Texas senate.[13] Kelly Shackleford, the president of the Free Market Foundation and a supporter of the amendment, said, "The words clearly recognize marriage in Texas as between a man and a woman...." and do not ban marriage in general.[13]

During the legislature's 2013 regular session, House Joint Resolution 77[14] by Representative Rafael Anchia, House Joint Resolution 78[15] by Representative Garnet Coleman, and Senate Joint Resolution 29[16] by Senator José R. Rodríguez would have repealed the constitutional definition of marriage; however, all these resolutions died in their respective committees.[17][18][19]

De Leon v. Perry[edit]

Main article: De Leon v. Perry

In November 2013, a lesbian couple married in Massachusetts and an unmarried gay couple challenged the state's same-sex marriage ban. The case, De Leon v. Perry, was assigned to Federal District Judge Orlando Garcia.[20] On February 26, Judge Garcia ruled against Texas' ban on same-sex marriage.[1] 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".[21] He stayed enforcement of his ruling pending appeal to the Fifth Circuit Court of Appeals.[22][23] 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."[3] The case is currently being briefed in the U.S. Fifth Circuit Court of Appeals, case number 14-50196.

State lawsuits[edit]

In the Matter of the Marriage of A.L.F.L. and K.L.L.[edit]

On February 18, 2014, a same-sex couple, married in Washington D.C., filed for divorce and child custody lawsuit.[24] 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.[2] On April 25, 2014, Texas Attorney General Greg Abbott appealed the decision.[4] 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.[25]

In Re Marriage of J.B. and H.B.[edit]

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.[26] But the Texas Attorney General appealed, and on August 31, 2010, the Fifth Court of Appeals in Dallas reversed the lower court, ruling that the same-sex marriage ban does not violate the Equal Protection Clause of the Fourteenth Amendment, even when used to prevent a legally-married couple from obtaining a divorce.[27][28]

The case is pending before the Texas Supreme Court, with oral arguments set for November 5, 2013.[29][30][31]

Texas v. Naylor[edit]

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.[32]

The case is pending before the Texas Supreme Court. Oral arguments took place November 5, 2013.[29][30][31]

Public opinion[edit]

Public opinion for same-sex marriage in Texas
Poll source Date(s)
Margin of
 % support  % opposition  % no opinion
University of Texas/Texas Tribune October 10–19, 2014 1200 ± 3.99% 42% 47% 11%
New York Times/CBS News/YouGov September 20–October 1, 2014 4177 ± 2.2% 37% 50% 14%
Texas Tech March 6-April 3, 2014 454 ± 4.6% 48% 47% 5%
Public Religion Research Institute November 12-December 18, 2013 297 ± 6.6% 48% 49% 4%
Public Policy Polling June 28-July 1, 2013 500 ± 4.4% 34% 57% 9%
Glengariff Group, Inc. January 24-27, 2013 1,000 ± 3.1% 47.9% 47.5%
Public Policy Polling January 24-27, 2013 500 ± 4.4% 35% 55% 10%
Public Policy Polling September 15-18, 2011 569 ± 4.1% 29% 61% 10%
Glengariff Group, Inc. August 29-September 2, 2010 1,000 ± 3.1% 42.7% 52.7%

See also[edit]


  1. ^ a b Brubaker Calkins, Laurel (27 February 2014). "Texas Gay-Marriage Ban Held Illegal as Judge Delays Order". Bloomberg News. Retrieved 9 March 2014. 
  2. ^ a b "Judge: Texas can't bar gay marriage — or divorce". Retrieved May 16, 2014. 
  3. ^ a b Snow, Justin (February 26, 2014). "Federal court finds Texas ban on same-sex marriage unconstitutional". Metro Weekly. Retrieved February 26, 2014. 
  4. ^ a b State Attorney General Challanges Bexar County Same-Sex Divorce
  5. ^ Texas Family Code sec. 2.001(b)
  6. ^ Texas Family Code sec. 6.204
  7. ^ Texas Family Code sec. 6.204(c)
  8. ^ House Bill 1300 - Introduced Text, 83rd Legislature, Regular Session, 2013
  9. ^ House Bill 1300 History, 83rd Legislature, Regular Session, 2013
  10. ^ Senate Bill 480 - Introduced Text, 83rd Legislature, Regular Session, 2013
  11. ^ Senate Bill 480 History, 83rd Legislature, Regular Session, 2013
  12. ^ Article I, Section 32 of the Texas Constitution states: "(a) Marriage in this state shall consist only of the union of one man and one woman. (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."
  13. ^ a b "Marriage-Amendment Backers Claim Fraud". World Net Daily. October 26, 2005. Retrieved January 17, 2013. 
  14. ^ House Joint Resolution 77 - Introduced Text, 83rd Legislature, Regular Session, 2013
  15. ^ House Joint Resolution 78 - Introduced Text, 83rd Legislature, Regular Session, 2013
  16. ^ Senate Joint Resolution 29 - Introduced Text, 83rd Legislature, Regular Session, 2013
  17. ^ House Joint Resolution 77 History, 83rd Legislature, Regular Session, 2013
  18. ^ House Joint Resolution 78 History, 83rd Legislature, Regular Session, 2013
  19. ^ Senate Joint Resolution 29 History, 83rd Legislature, Regular Session, 2013
  20. ^ Parker, Kolten (December 11, 2013). "Federal judge sets hearing on Texas same-sex marriage ban". Retrieved January 18, 2014. 
  21. ^ Orlando Luis Garcia (26 February 2014). "United States District Court for the Western District of Texas Case 5:13-cv-00982-OLG, Doc 73 - ORDER on Preliminary Injunction". United States District Court for the Western District of Texas. Retrieved 11 March 2014. 
  22. ^ Garrett, Robert (February 26, 2014). "Federal judge voids Texas' gay marriage ban, though he delays order from taking effect immediately". Dallas News. Retrieved February 26, 2014. 
  23. ^ Lindell, Chuck (February 26, 2014). "Judge overturns Texas ban on gay marriage". Austin American Statesman. Retrieved February 26, 2014. 
  24. ^ "Lawsuits Pending". Retrieved May 16, 2014. 
  25. ^ "Texas judge blocks state from intervening in gay couple’s divorce case". Retrieved May 16, 2014. 
  26. ^ "Texas Battle on Gay Marriage Looms", The New York Times, reported by James C. McKinley Jr., October 2, 2009
  27. ^ In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tex. App. - Dallas (5th Dist.) 2010)
  28. ^ Appleton, Roy (September 1, 2010). "Dallas judge's ruling saying gay couple could divorce in Texas rejected on appeal". The Dallas Morning News. Retrieved January 19, 2013. 
  29. ^ a b No. 11-0024, the Supreme Court of Texas Blog
  30. ^ a b No. 11-0114 the Supreme Court of Texas Blog
  31. ^ a b Rozen, Miriam (December 17, 2012). "Tex Parte Blog: Lawyer in two same-sex divorce cases awaits Texas Supreme Court decision on petitions for review". Texas Lawyer. Retrieved January 19, 2013. 
  32. ^ Kreytak, Steven (January 7, 2011). "Same-sex divorce stands under appellate ruling: Attorney general did not have standing to intervene in case, court declares". Austin American-Statesman. Retrieved January 19, 2013. 

External links[edit]