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11

A New Day: Same-Sex Marriages;

Emerging Gender Identity Issues

By Richard R. Orsinger

Obergefell v. Hodges

On June 26, 2015, the United States

Supreme Court determined that, in the eyes

of the law, marriage in America includes

marriages between two persons of the same

gender. This was the decision in

Obergefell

v. Hodges.

1

According to a 5-to-4 majority

of the Justices, this “marriage equality”

is required by the Fourteenth Amendment to the U.S.

Constitution, both because substantive due process protects

the fundamental right to marry the person of your choice, and

because the equal protection clause requires that same sex

marriages be treated as equal to heterosexual marriages. The

decision requires states both to grant same-sex marriages and

to recognize same-sex marriages validly granted elsewhere.

Applies to Texas

Texas was not a party to the

Obergefell

appeal, but Federal

District Judge Orlando Garcia had previously ruled, back on

February 26, 2014, that Texas’ constitutional

2

and statutory

3

bans on same-sex marriage violate the Fourteenth Amendment.

Judge Garcia stayed the effect of his decision pending appeal

to the Fifth Circuit Court of Appeals, but he lifted the stay hours

after the

Obergefell

decision was released, and six days later

his decision was affirmed by the Fifth Circuit Court of Appeals.

4

Initially, Texas Governor Greg Abbott announced that Texas

officials were not bound to apply the

Obergefell

decision if it

violated their religious beliefs. On June 28, 2015, Texas Attorney

General Ken Paxton released a defiant letter, addressed to

Texas’ Lieutenant Governor, calling the Supreme Court’s

Obergefell

ruling “lawless” and “flawed,” and saying that county

clerks and employees might be able to refuse to issue same-

sex marriage licenses based on personal religious objections,

and that state judges were not required to conduct same-sex

weddings if that conflicted with their personal religious views.

5

However, the Attorney General reconsidered his position, at least

in so far as issuing an amended death certificate, when ordered

to appear in Judge Orlando Garcia’s Federal District Court to

show cause why he should not be held in contempt of court.

Several county clerks in Texas initially refused to issue same-

sex marriage licenses, but after suits were filed they all backed

down. In Kentucky, a county clerk did not back down, and she