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23

Same-Sex Marriage Issues

By Richard R. Orsinger

1

Introduction

T

he United States is in the midst of a rapid and dramatic

change of cultural mores and laws governing same-

sex marriages. The Texas Constitution and Family Code

prohibit same-sex marriage in Texas and deny recognition

in our State to same-sex marriages created elsewhere.

Those Texas laws have been held unconstitutional by a Federal District

Judge in San Antonio, whose decision is stayed pending resolution of

the appeal to the U.S. Court of Appeals for the Fifth Circuit. These

laws have also been declared unconstitutional by a Bexar County

district judge, whose decision is on appeal to the San Antonio Court

of Appeals. A Dallas County District Judge previously declared the

laws to be unconstitutional, but that decision was reversed by the Dallas Court of

Appeals, whose decision in turn is under submission to the Texas Supreme Court. A Travis County

district judge granted an agreed same-sex divorce, and the Austin Court of Appeals ruled it could not

be appealed. That decision also is under submission to the Texas Supreme Court.

At this moment in time (February, 2015), the preeminent question is whether the validity of a

marriage is a question of state law or Federal law. If Federal law, then all states will be required

to create same-sex marriages and to recognize the validity of same-sex marriages celebrated

elsewhere. If Federal law does not control the question, then the validity of a marriage will continue

to be governed by state law, and the question becomes “which state’s law?” State laws on same-sex

marriage differ, some specifically authorizing same-sex marriage, some disallowing it but allowing

civil unions instead, some explicitly banning same-

sex marriage, and some making no statement

for or against same-sex marriage. Some states

which ban same-sex marriage do so by legislation

alone, and some (like Texas) by constitutional

amendment and legislation.

Is Recognition of Same-Sex Marriage

Required by the 14

th

Amendment?

Overview

The validity of a marriage in the USA has

historically been a question of state law.

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Recently,

however, litigants have successfully argued that

the 14th Amendment to the U.S. Constitution

requires states to grant same-sex marriages and

to recognize as valid same-sex marriages that were

created elsewhere. The winning argument couples

U.S. Supreme Court precedent recognizing that the

The validity

of a

marriage in

the USA has

historically

been a

question of

state law.