What the History of Gay Marriage Legislation in Texas Can Teach Us About Its Future
Tue December 3, 2013 1:23 pm

Gay marriage supporters have made massive strides in a very short amount of time. Less than ten years ago, gay couples couldn’t get married anywhere in the United States. While the progress they did achieve shortly thereafter involved victories, they were handed down by judges—rather than their fellow voters—and the term “marriage” still didn’t apply—they could only have separate-but-equal “civil unions.” 

Now, though, nearly a third of the states (containing nearly forty percent of the population) have legalized gay marriage, and in most cases, that’s been through the actions of elected legislatures or voters at the ballot box. 

In Texas, meanwhile, if the status of gay marriage is going to change—at least in the short term—it’ll likely have to be in the courts. And there are four lawsuits pending that are challenging the various restrictions in the state that outlaw gay marriage. As we take a look at them, let’s also take a moment to trace the history of gay marriage bans in Texas: 

1997: Texas Legislature adds the line “A license may not be issued for the marriage of persons of the same sex” to the Family Code.

The Seventy-fifth Legislature voted on Section 2.001 in 1997, which required couples consisting of one man and one woman to obtain a marriage license from the county clerk of any county in Texas. It also explicitly prohibited the clerk from granting a license to two people of the same gender.

2003: Lege bans civil unions, officially declares civil unions and same-sex marriages performed in other states to be void in Texas.

Anticipating the floodgates that would open shortly after a judge found gay marriage to be constitutional in Massachusetts, the Texas Legislature voted in 2003 to add more language to the Family Code that would ban gay marriage and civil unions through Section 6.204. This statute declared that “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,” and prohibited the state, or any state agencies, from giving effect to any “public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction.” This is important to the couples who are currently seeking to get divorced. 

2005: Voters approve Texas Proposition 2, which amends the state Constitution to ban gay marriage yet again.

In November 2005, voters passed Proposition 2 by a whopping 53-point margin. This amended Article 1, Section 32 of the Texas Constitution with this very short and direct language: 

(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.

That seems pretty unambiguous, though there was some confusion at the time around whether the (b) section of the amendment meant that no one could get married in Texas. With hindsight, though, that does seem like a pretty weak argument against the ban.

2009: Gay divorce case challenges Prop 2.

In 2008, the case of In re Marriage of J.B. and H.B. was heard by a Dallas district court. This was a petition by two men who were married in Massachusetts in 2006 who, after moving to Dallas, sought to get divorced. The case immediately raised a lot of interesting questions: Did the Full Faith and Credit Clause of the U.S. Constitution require the state to recognize the Massachusetts marriage and thus grant the divorce, or did the court lack jurisdiction to hear the case? Attorney General Greg Abbott argued the latter, but in October 2009, Dallas District Judge Tena Callahan rejected that argument and found that Article 1, Section 32 of the Texas Constitution violated the Fourteenth Amendment of the United States Constitution and threw the whole thing into question. 

In 2010, the Fifth Circuit Court of Appeals reversed the lower court’s decision, finding that the ban on gay marriage in Texas did not violate the Fourteenth Amendment’s Equal Protection Clause. That court is not the final authority in the matter, though, and in November the Texas Supreme Court heard oral arguments, with the final decision expected sometime in early 2014. It’s worth noting that in Wyoming, gay divorce has been found constitutional even though gay marriage remains illegal in the state. 

The result of that case is unlikely to determine the future of gay marriage in Texas—even the attorney arguing for the divorce insists that “gay marriage and gay divorce are two separate things”—though it may open the door for the cases that likely will

December 2013: One couple sues to have their out-of-state marriage recognized, another sues for the right to get married.

A federal court in San Antonio agreed to hear the cases of two different couples this week. One couple seeks the right to get married in Texas, arguing that Article 1, Section 32 restricts their Fourteenth Amendment right to equal protection. They will, presumably, be watching the state Supreme Court closely in regard to the divorce case to see what effect it may have on their case. 

The other couple is suing to have their marriage, which was performed in another state, recognized in Texas. This is the first time that a challenge like this has been raised in Texas since the U.S. Supreme Court found that the federal Defense of Marriage Act, which carved an exception to the Full Faith And Credit Clause of the U.S. Constitution, was unconstitutional. At the moment, it looks like even the law’s biggest supporters have doubts that it’ll resist the challenge, as NBC DFW reports

Abbott has promised to defend the Texas law, as he would any other state law. But in a legal opinion declaring domestic partner benefits unconstitutional in April, he acknowledged that U.S. Supreme Court decisions on same-sex marriages could overturn Texas’ constitutional provision.

The U.S. Supreme Court has taken tiny steps in their same-sex marriage decisions, recognizing that the majority of states still outlaw the practice, 29 through constitutional amendments and four through state law. That leaves lower courts without clear guidance on how to proceed, and raising the potential for different judges reach different conclusions.

Also, if one more state legalizes same-sex marriage, it becomes almost impossible to pass a federal constitutional amendment defining marriage as between a man and a woman. At that point, the U.S. Supreme Court may feel freed to sort out whether one state can deny the legality of a marriage performed in another. Justices in the past have frowned on citizens having different civil rights in different states.

Ultimately, it’s up to the courts to decide what happens in this case. But the sea change in how gay marriage has been treated nationally since Texas voters outlawed it in 2005 suggests that if a change does come, it probably won’t be a surprise at this point.

More Texas Monthly

Loading, please wait...

Most Read

  • Viewed
  • Past:
  • 1 week