was held in contempt by a federal district judge and spent five days in jail, until she agreed for her office
to issue marriage certificates for same-sex marriages.
Pending appeals of cases involving the validity of
same-sex marriage have been returned to the trial court by Texas courts of appeals.
A temporary injunction
prohibiting the City of Houston from providing spousal benefits to same-sex spouses of city employees was
reversed based on
While the validity of same-sex marriages is now established, there are questions still to be answered about
how newly-recognized same-sex marriages will mesh with other family law issues.
. While the U.S. Supreme Court’s 2015 decision in
was startling to some, it was
actually the culmination of a long process that in America began with the Hawaii Supreme Court’s 1993
decision that Hawaii’s ban against same-sex marriage violated the equal protection clause of the Hawaii
In 2003, the U.S. Supreme Court struck down Texas’ criminal law prohibiting sodomy, based
on a substantive due process protection of the right to privacy in consensual sexual
Another milestone occurred in 2003 when the Massachusetts
Supreme Court ruled that the Massachusetts Constitution required
equal treatment of heterosexual and same-sex marriage.
2010, eight federal district courts ruled that the part of
the 1996 Defense of Marriage Act (DOMA), that limited
Federal recognition of marriage to heterosexual
marriages, was unconstitutional. On February 23,
2011, U.S. Attorney General Eric Holder said in
a letter addressed to the Speaker of the House
of Representatives that the Justice Department
would no longer defend the DOMA in litigation.
On May 9, 2012, President Obama stated in a
television interview that he had arrived at the
personal decision to accept same-sex marriage.
In 2013, in
U.S. v. Windsor
the Supreme Court
struck down the part of the DOMA that required
Federal agencies to ignore same-sex marriage even
where they were legally recognized under the law of
marital residence, relying on the due process clause of
the Fifth Amendment and the fact that the U.S. Constitution
did not give the Federal government the power over marriage.
That same day, in
Hollingsworth v. Perry
the Supreme Court dismissed
the appeal from a ruling invalidating California’s constitutional ban against same-sex marriages, saying
that the California Attorney General’s refusal to defend the law on appeal meant that there was no case
or controversy for Federal appellate courts to rule on. That ruling resulted in the recognition of same-sex
marriages in California by virtue of an unreviewed decision of a single federal judge. During 2014, the U.S.
Supreme Court denied review in three cases where U.S. courts of appeals had invalidated state constitutions
and statutes that denied the validity of same-sex marriages. The result was to leave in place circuit court
decisions invalidating such laws in West Virginia, North Carolina, South Carolina, Kansas, Colorado, and
Wyoming. Thus, the decision in
had many precedents.
The decision in
, and the few follow-up enforcement proceedings to date,
make it clear that Texas judges, in ruling on cases, must recognize same-sex marriages as being valid on
the same terms as opposite-sex marriages. Whether the failure to do so would subject a judge to contempt
of a Federal court, or a sanction from The Judicial Conduct Commission, as opposed to reversal on appeal,
are unanswered questions. Also unclear is whether Texas judges, who by law have the authority to marry
are required to perform same-sex marriages. The indications coming from other states suggest
that no judge is required to perform marriages, but if s/he does, s/he must perform both opposite-sex and
However, Texas has no gay anti-discrimination law, so the question of whether Texas