A New Day: Same-Sex Marriages;
Emerging Gender Identity Issues
By Richard R. Orsinger
Obergefell v. Hodges
On June 26, 2015, the United States
Supreme Court determined that, in the eyes
of the law, marriage in America includes
marriages between two persons of the same
gender. This was the decision in
According to a 5-to-4 majority
of the Justices, this “marriage equality”
is required by the Fourteenth Amendment to the U.S.
Constitution, both because substantive due process protects
the fundamental right to marry the person of your choice, and
because the equal protection clause requires that same sex
marriages be treated as equal to heterosexual marriages. The
decision requires states both to grant same-sex marriages and
to recognize same-sex marriages validly granted elsewhere.
Applies to Texas
Texas was not a party to the
appeal, but Federal
District Judge Orlando Garcia had previously ruled, back on
February 26, 2014, that Texas’ constitutional
bans on same-sex marriage violate the Fourteenth Amendment.
Judge Garcia stayed the effect of his decision pending appeal
to the Fifth Circuit Court of Appeals, but he lifted the stay hours
decision was released, and six days later
his decision was affirmed by the Fifth Circuit Court of Appeals.
Initially, Texas Governor Greg Abbott announced that Texas
officials were not bound to apply the
decision if it
violated their religious beliefs. On June 28, 2015, Texas Attorney
General Ken Paxton released a defiant letter, addressed to
Texas’ Lieutenant Governor, calling the Supreme Court’s
ruling “lawless” and “flawed,” and saying that county
clerks and employees might be able to refuse to issue same-
sex marriage licenses based on personal religious objections,
and that state judges were not required to conduct same-sex
weddings if that conflicted with their personal religious views.
However, the Attorney General reconsidered his position, at least
in so far as issuing an amended death certificate, when ordered
to appear in Judge Orlando Garcia’s Federal District Court to
show cause why he should not be held in contempt of court.
Several county clerks in Texas initially refused to issue same-
sex marriage licenses, but after suits were filed they all backed
down. In Kentucky, a county clerk did not back down, and she