The Obergefell Same Sex Marriage Decision: What does it mean for Texas law?

Today, the United States Supreme Court issued a historic ruling on same sex marriage. In Obergefell v. Hodges, 576 U.S. ___ (2015), The Court held that the due process clause of the U.S. Constitution, as applied to the states through the 14th Amendment, requires all states to issue marriage licenses to same sex couples. In addition, the Court ruled that all states must honor marriages between members of the same sex when those marriages were lawfully performed out of state. As a result, same sex marriages performed out of state are now valid, legal marriages in Texas.
The due process clause protects fundamental rights and liberties. The Court in Obergefell recognized that the right to marriage is among these rights.

The Obergefell Decision’s Effect on Texas Laws

Texas has made its position on same sex marriage extremely clear. Article I, Section 32 of the Texas Constitution, as amended by voters in 2005, currently defines marriage as “the union of one man and one woman.” Tex. Const. Art. I Sec. 32(a). The Texas Constitution also disallows the creation or recognition of “any legal status identical or similar to marriage.” Tex. Const. Art I Sec. 32(b). As to marriages entered into out of state, the Texas Family Code also states: “A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state.” Texas Family Code § 6.204(2)(b).

It appears that the Obergefell decision undermines these Texas laws. The Supreme Court of the United State now holds that

same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

Thus, Texas judges will likely be compelled by the Obergefell decision to stop enforcing Texas’ prohibition on same-sex marriage. Some county clerks have stated that they will immediately begin to issue marriage licenses to same sex couples. Others are awaiting guidance from the Texas State Attorney General, who will instruct them on how to proceed.

Some judges in Texas have already ruled that Texas’ ban on same-sex marriage is unconstitutional. Several cases are currently working their way through the appellate courts in Texas. Following today’s decision by the United States Supreme Court, Texas courts will likely hold that Texas’ same-sex marriage ban is indeed unconstitutional and will likely begin granting divorces to same-sex married couples.

Unanswered Questions Remain

While the Obergefell case has clarified that same sex marriage is protected as a fundamental liberty under the 14th Amendment, the battle is not over for same sex marriage proponents in Texas.  The Obergefell decision does not explicitly state whatstandard of review will be applied to laws which infringe upon the right to same sex marriage.
The due process clause protects fundamental rights and liberties. However, whether a law can be enacted that infringes upon these rights depends on what “standard of review” is applied by the reviewing court. The “standard of review” is a way for courts to measure whether a state is acting reasonably in restricting rights that are required by due process. There are two major types of review: a “fundamental right” is given “strict scrutiny” – in this context, a law infringing this liberty must be “narrowly tailored” to promote a “compelling goal”. “Rational basis” scrutiny covers everything else – generally, this means that a state only has to show a legitimate reason or “rational basis” for the law. If the state can show that, the law will be presumed valid.

Currently, most laws impacting homosexual couples are examined under a “rational basis” test, which is the lowest standard of review. The standard of review or “scrutiny” that will be granted for denial of a marriage license is not explicit; however, the Court states that same sex marriage is to be treated the same as opposite sex marriage. Thus, denial of a same sex marriage license will likely be considered an infringement of a fundamental right and subject to strict scrutiny. However, there could be further battles over what restrictions may be imposed on this right. Furthermore, there may be religious objections raised by Texas judges and Justices of the Peace, who claim that their religious rights will be violated if they are required to issue marriage licenses to same sex couples. In any event, there will no doubt be future debate and litigation about today’s decision.

If you have any questions about same sex marriage or same sex divorce, contact Susan Smith at Gardner & Smith, PLLC.