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13

judges are obligated to conduct same-sex marriages is more a matter of judicial ethics than law. Texas’

Pastor Protection Act allows religious organizations and the clergy to refuse to perform weddings that violate

“a sincerely held religious belief.”

16

But the foundation for that exemption is the First Amendment freedom

of religion, which will not extend to actions by judges acting in their official capacity. As noted above, Texas

Attorney General Ken Paxton wrote, on June 28, 2015:

Justices of the peace and judges similarly retain religious freedoms, and may claim that the government

cannot force them to conduct same-sex wedding ceremonies over their religious objections, when other

authorized individuals have no objection, because it is not the least restrictive means of

the government ensuring the ceremonies occur. The strength of any such claim

depends on the particular facts of each case.

17

More detail of his reasoning is set out later in the Opinion. On July

1, 2015, the Office of Harris County, Texas Attorney Vince Ryan

issued a letter to all Harris County justices of the peace and

county judges advising them that “[a] judge or justice

of the peace is authorized to perform a marriage

but is under no obligation to do so. However, once

the judge elects to undertake the performance

of marriages, the service must be offered to

all (including same-sex couples) in a non-

discriminatory manner.”

18

Retroactivity

Texas Attorney General Ken Paxton and

others have questioned whether

Obergefell

is

retroactive in effect. The start date of marriage

can affect community property rights, among other

things. It seems clear that a same-sex marriage,

occurring in a jurisdiction where it was lawful from

its inception, is valid in Texas from the inception of the

marriage. Not so clear is whether a same-sex purported

marriage, that occurred in a jurisdiction where it was then prohibited,

is now retroactively validated back to the date of the ceremony. The State of Texas

is now (thanks to Federal Judge Garcia) issuing amended death certificates for persons who died before

Obergefell

was decided, which as a practical matter is giving that decision retroactive effect. But the legal

question of retroactivity is still unresolved. The IRS applied

U.S. v. Windsor

prospectively from the date it

issued the Revenue Ruling implementing that decision.

19

However, the IRS also permits – but does not require

-- administrators of qualified retirement plans to recognize same-sex marriage retroactive to a date prior to

U.S. v. Windsor

.

20

And the IRS allows persons to amend tax returns to take advantage of

U.S. v. Windsor

all

the way back to when the limitations period has expired.

21

Informal Marriage.

Another question is whether an informal same-sex marriage, which in Texas requires

the parties to agree to be married, followed by cohabitation and “holding out,” all within the State, can exist

retroactive to a time when an informal same-sex marriage was not allowed. The Internal Revenue Service

has long recognized an informal marriage that was valid under the law of the state where it was entered

into, without regard to the law of subsequent domiciles.

22

The IRS is taking the same approach to same-sex

marriage: a same-sex marriage is recognized only if it was valid in the state where it was entered into.

23

A party claiming an informal same-sex marriage under Texas law prior to

Obergefell

cannot show that the

marriage was valid under Texas law at the time it was entered into. Thus, the validity of an alleged same-sex

informal marriage predating

Obergefell

turns on whether that decision has retroactive effect–a question that

is yet to be answered.