Will the Supreme Court Strike Down the Texas Ban on Same-Sex Marriages?

Originally published by Susan Smith.

The same sex marriage debate before the Supreme Court and its effect on Texas: A look at Obergefell v. Hodges

The Supreme Court is currently deciding a case that will have a huge impact on same sex couples across the country. The “case” is a combination of 4 separate cases challenging various same-sex marriage laws in the states of Ohio, Michigan, Kentucky, and Tennessee. Because the Court felt the four cases raised similar issues, the Court combined the cases under the name Obergefell. It then reduced the core issues of the cases to two distinct questions:

Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

This article will focus on the second issue. To understand this issue, let’s take a look at the background of the Obergefell case.

What is the Obergefell case about?

The named Petitioner, Jim Obergefell, is from Ohio, a state which currently prohibits same-sex marriage. In 2011, Mr. Obergefell’s partner, John Arthur, was diagnosed with ALS (also known as Lou Gehrig’s Disease). The couple took a chartered jet to Maryland – where gay marriage was legal – and were married on the tarmac. They then flew back to Ohio. John Arthur passed away a few months later. Mr. Obergefell is fighting to ensure that John’s death certificate – which shows him as “married” with a “surviving spouse” – will not be altered by the State of Ohio. Thus, Mr. Obergefell is arguing that states must be forced to recognize a marriage lawfully performed out of state.

Where does Texas stand on same-sex marriage?

Texas provides: “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).

How are states like Ohio and Texas able to deny the validity of a same sex marriage when it legally occurred in another state? This is because of a 1996 law called “The Defense of Marriage Act” or “DOMA” which was enacted in 1996. It made headlines in 2013 when the Supreme Court decided the case of Windsor v. United States, 570 U.S. 12; 133 S. Ct. 2675 (2013). The Supreme Court invalidated the parts of DOMA which banned individual states from permitting same sex marriage. However, the Court did not go so far as to require every state to give credit to same sex marriages performed in another state. For example, if a couple is married in Maryland and moves to Texas, Texas law will still consider their marriage “void.”

How might the outcome of Obergefell affect the state of Texas?

The constitutionality of Texas’ same sex marriage ban is already being challenged by Texans themselves. However, the outcome of the Obergefell decision could effectively render Texas powerless to enforce this provision. If the Supreme Court rules in favor of Obergefell on the second issue, then a same sex couple need only fly to another state where same sex marriage is legal, get married, and return to Texas as “husband and husband” or “wife and wife.” Texas would then be forced to give the marriage legal force and effect.

As of yet, the United States Supreme Court has not issued any opinion in Obergefell; although a decision is expected sometime this month. If the Court decides that all states are required to provide marriage licenses to same sex couples and/or that each state must recognize a same-sex marriage performed in another state, then same-sex couples in Texas who need a divorce will be able to use the standard divorce process as opposed to the voidance process to dissolve their relationship.

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