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12

was held in contempt by a federal district judge and spent five days in jail, until she agreed for her office

to issue marriage certificates for same-sex marriages.

6

Pending appeals of cases involving the validity of

same-sex marriage have been returned to the trial court by Texas courts of appeals.

7

A temporary injunction

prohibiting the City of Houston from providing spousal benefits to same-sex spouses of city employees was

reversed based on

Obergefell

.

8

While the validity of same-sex marriages is now established, there are questions still to be answered about

how newly-recognized same-sex marriages will mesh with other family law issues.

Precedents

. While the U.S. Supreme Court’s 2015 decision in

Obergefell

was startling to some, it was

actually the culmination of a long process that in America began with the Hawaii Supreme Court’s 1993

decision that Hawaii’s ban against same-sex marriage violated the equal protection clause of the Hawaii

constitution.

9

In 2003, the U.S. Supreme Court struck down Texas’ criminal law prohibiting sodomy, based

on a substantive due process protection of the right to privacy in consensual sexual

matters.

10

Another milestone occurred in 2003 when the Massachusetts

Supreme Court ruled that the Massachusetts Constitution required

equal treatment of heterosexual and same-sex marriage.

11

In

2010, eight federal district courts ruled that the part of

the 1996 Defense of Marriage Act (DOMA), that limited

Federal recognition of marriage to heterosexual

marriages, was unconstitutional. On February 23,

2011, U.S. Attorney General Eric Holder said in

a letter addressed to the Speaker of the House

of Representatives that the Justice Department

would no longer defend the DOMA in litigation.

On May 9, 2012, President Obama stated in a

television interview that he had arrived at the

personal decision to accept same-sex marriage.

In 2013, in

U.S. v. Windsor

,

12

the Supreme Court

struck down the part of the DOMA that required

Federal agencies to ignore same-sex marriage even

where they were legally recognized under the law of

marital residence, relying on the due process clause of

the Fifth Amendment and the fact that the U.S. Constitution

did not give the Federal government the power over marriage.

That same day, in

Hollingsworth v. Perry

,

13

the Supreme Court dismissed

the appeal from a ruling invalidating California’s constitutional ban against same-sex marriages, saying

that the California Attorney General’s refusal to defend the law on appeal meant that there was no case

or controversy for Federal appellate courts to rule on. That ruling resulted in the recognition of same-sex

marriages in California by virtue of an unreviewed decision of a single federal judge. During 2014, the U.S.

Supreme Court denied review in three cases where U.S. courts of appeals had invalidated state constitutions

and statutes that denied the validity of same-sex marriages. The result was to leave in place circuit court

decisions invalidating such laws in West Virginia, North Carolina, South Carolina, Kansas, Colorado, and

Wyoming. Thus, the decision in

Obergefell

had many precedents.

Cases; Weddings.

The decision in

Obergefell

, and the few follow-up enforcement proceedings to date,

make it clear that Texas judges, in ruling on cases, must recognize same-sex marriages as being valid on

the same terms as opposite-sex marriages. Whether the failure to do so would subject a judge to contempt

of a Federal court, or a sanction from The Judicial Conduct Commission, as opposed to reversal on appeal,

are unanswered questions. Also unclear is whether Texas judges, who by law have the authority to marry

couples,

14

are required to perform same-sex marriages. The indications coming from other states suggest

that no judge is required to perform marriages, but if s/he does, s/he must perform both opposite-sex and

same-sex marriages.

15

However, Texas has no gay anti-discrimination law, so the question of whether Texas