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14

Death Certificates; Birth Certificates

. When the decision in

Obergefell

was announced, Federal District Judge Orlando Garcia

issued an order enjoining the State of Texas from enforcing any

law that prohibits or fails to recognize same-sex marriages. A new

party

24

intervened in the case in Judge Garcia’s court, alleging

that the Bexar County Clerk, the Texas Attorney General, and the

interim State Commissioner of Health Services, were refusing

to issue an amended death certificate. Judge Garcia ordered

the Attorney General and Commissioner to appear in his court

and show cause why they should not be held in contempt of

Judge Garcia’s earlier order invalidating Texas’ ban on same-

sex marriage. The Attorney General filed a brief saying that

the amended death certificate would issue but that a legal

question existed as to the retroactivity of

Obergefell

.

Civil Unions

.

Obergefell v. Hodges

requires recognition

of same-sex marriages, but not of civil unions. The

Texas Constitution and Texas Family Code still prohibit

recognition of a civil union, which the Family Code defines

as “any relationship status other than marriage that:

(i) is intended as an alternative to marriage or applies

primarily to cohabitating persons; and (2) grants to the

parties of the relationship legal protections, benefits, or

responsibilities granted to the spouses of a marriage.”

So far, this prohibition has not been touched by cases

interpreting

Obergefell

and it remains the law of Texas.

The IRS does not treat registered domestic partnerships

or civil unions as a marriage, and that position was not

altered after

U.S. v. Windsor

,

25

which in part was based

on the due process clause in the Fifth Amendment.

Polygamous Marriages.

The states of the United

States permit only marriages between two persons, not

more. The history was plainly stated in

Reynolds v. U.S:

26

Polygamy has always been odious among the northern and western nations of Europe, and, until

the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African

people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest

history of England, polygamy has been treated as an offence against society.

In

Potter v. Murray City

,

27

a Federal district judge ruled that the state of Utah, who fired an employee for

polygamy, had a compelling interest in protecting and advancing traditional marriage that supported the ban

on polygamous marriage.

In Africa polygamy is widely accepted where it is not widely practiced. Islamic law (Shari’a law) permits “plural

marriages” in some situations. It is estimated that 1 to 3% of marriages in the Islamic world are polygamous.

Under Shari’a law, a man can take up to four wives, provided he can afford to support them all and the

children he has with them. Polygamy is legal, subject to varying conditions, in Iraq, Syria, Morocco, Algeria,

Jordan, Yemen, Egypt, Indonesia, Muslims in India, Bangladesh, Pakistan, Muslims in Sri Lanka, Singapore,

Camaroon, Burkina Faso, Gabon (where polygamy is the default), Bhutan, and nations in Africa that apply

“African customary law.” Polygamous marriage validly entered into in another country are recognized in

England, Australia and New Zealand. The courts of France, Belgium, Spain, and Canada do not recognize

plural marriage but will afford some marital-rights to persons in such relationships.

28

One National Public

Radio report related that academics researching the issue estimate that 50,000 to 100,000 people in the

United States live in polygamous families.

29

At some point, American courts will have to address persons