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(c) The state or an agency or political subdivision of the state may not give effect to a:

(1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage

between persons of the same sex or a civil union in this state or in any other jurisdiction; or

(2) right or claim to any legal protection, benefit, or responsibility asserted as a result of

a marriage between persons of the same sex or a civil union in this state or in any other

jurisdiction.

The Texas Constitution

On November 8, 2005, Texas voters passed a constitutional amendment, by a vote of 76% to 24%,

forbidding the creation or recognition of same-sex marriage. The provision reads:

Sec. 32. MARRIAGE.

(a) Marriage in this state shall consist only of the union of one man and one woman.

(b) This state or a political subdivision of this state may not create or recognize any legal status

identical or similar to marriage.

With the amendment, it can no longer be argued that refusing to recognize same-sex marriage or

civil unions violates the Texas Constitution. The only recourse to proponents of same-sex marriage in

Texas is preemption by Federal law, based either on the fundamental right to marry coupled with the

Fourteenth Amendment’s Equal Protection or Due Process of Law Clauses, or the Full Faith and

Credit.

Texas Court Decisions

In

Ross v. Goldstein

,

19

the appellate court declined to recognize an equitable remedy in probate

recognizing a “marriage-like relationship” doctrine. The court cited a Texas Legislative Resolution

saying that “[t]his state recognizes that through the designation of guardians, the appointment

of agents, and the use

of

private

contracts,

persons may adequately

and properly appoint

guardians and arrange

rights relating to hospital

visitation,

property,

and the entitlement to

proceeds of life insurance

policies without the

existence of any legal

status identical or similar

to marriage.”

In the case of

Mireles v.

Mireles

,

20

the appellate

court said that “[a] Texas

court has no more power

to issue a divorce decree

for a same-sex marriage than it does to administer the estate of a living person.”

In the case of

In re Marriage of J.B. and H.B.

,

21

the Dallas Court of Appeals held that a Texas court

does not have subject-matter jurisdiction over a divorce case arising from a same-sex marriage that

occurred in Massachusetts. The opinion held that that the State of Texas, through the Attorney

General, had the right to intervene in the lawsuit to raise the trial court’s lack of jurisdiction, and that

mandamus would lie to overturn the trial court’s dismissal of the AG’s intervention. The appellate

The Fifth Circuit

may rule before or

during the summer

on whether Texas

law banning same-

sex marriage is

unconstitutional.