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1 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

2 Tex. Const. Art. I, § 32 of the Texas Constitution states:

(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.

3 Tex. Fam. Code § 6.204, states: § 6.204. Recognition of Same-Sex Marriage or Civil Union.

(a) In this section, “civil union” means any relationship status other than marriage that:

(1) 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.

(b) A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state.

(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.

Added by Acts 2003, 78th Leg., ch. 124, § 1, eff. Sept. 1, 2003.

4 DeLeon v. Abbott, 791 F.3d 619 (5


Cir. July 1, 2015).

5 Attorney General Paxton: Religious Liberties of Texas Public Officials Remain Constitutionally Protected After Obergefell v. Hodges

< https:// >

, describing Opinion No. KP-0025 (June 28, 2015).

6 After the Obergefell decision was announced, Kim Davis, County Clerk of Rowan County, Kentucky, refused to issue marriage licenses, first

to same-sex applicants and then to all applicants, citing her religious beliefs. Four couples filed suit in the U.S. District Court for the Eastern

District of Kentucky to require that marriage licenses be issued, and Federal District Judge David Bunning ordered Davis to issue the licenses.

Davis sought review from the Sixth Circuit, which refused, writing that “[i]t cannot be defensibly argued that the holder of the Rowan County

Clerk’s office ... may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States

Supreme Court.” Davis sought review in the U.S. Supreme Court, which refused to hear her appeal. Davis persisted in refusing to issue marriage

licenses, and after a hearing she was incarcerated for a period of five days, when she was released with the understanding that she would not

interfere with her deputy clerks issuing marriage licenses.

7 Powell v. Long, No. 02-14-00397-CV, 2015 WL 4776109 (Tex. App.–Fort Worth August 13, 2015) (memo. opinion) (case remanded for

reconsideration); In re Marriage of A.L.F.L and K.L.L. and in the Interest of K.A.F.L, No. 04-14-00364-CV, 2015 WL 4561231 (Tex. App,.–San

Antonio July 29, 2015) (memo. opinion) (appeal from denial of plea to the jurisdiction dismissed as moot).

8 Parker & City of Houston v. Pidgeon, No. 14-14-00899-CV, 2015 WL 5438670 (Tex. App.–Houston [14


Dist.] July 28, 2015).

9 Baehr v. Miike, 910 P.2d 112 (Hawaii 1993).

10 Lawrence v. Texas, 539 U.S. 558 (2003).

11 Goodridge v. Dept. of Public Health, 798 N.E. 2d 941 (Mass. 2003).

12 U.S. v. Windsor, 133 S. Ct. 2675 (2013).

13 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).

14 Tex. Fam. Code § 2.202(4) & (5).

15 In 2013, the State of Washington’s Commission on Judicial Conduct admonished a judge who refused to solemnize same-sex marriages in

contravention of state legislation recognizing same-sex marriage. The Commission said the judge was not required to solemnize marriage, but

if he chose to do so he could not perform only opposite-sex marriages. The Commission cited Washington’s Code of Judicial Conduct, Rules 1.1

& 1.2, and 3.1(C), about avoiding the appearance of impropriety and promoting public confidence in the judiciary’s impartiality. In re Tabor, CJC

No. 7251-F-158 (October 4, 2013). In May of 2014, the Deputy Counsel for the Pennsylvania Judicial Conduct Board published a newsletter

article advising judges that to refuse to perform all marriages would be ethical, but performing opposite-sex marriages while refusing to perform

same-sex marriages would violate the Code of Judicial Conduct. Elizabeth Flaherty, Impartiality in Solemnizing Marriages, Newsletter of the

Judicial Conduct Board of Pennsylvania (No. 3 Summer 2014). In March of 2015, the Arizona Supreme Court’s Judicial Ethics Advisory Board

issued an Advisory Opinion stating that judges are not required to perform marriage ceremonies, but if they do perform them for any members

of the public they cannot refuse to perform same-sex weddings. The Opinion says a judge can perform marriages for friends and family without

triggering the duty to members of the public. Az. Jud. Ethics Advisory Op. 15-01 (March 9, 2015). In May, 2015, North Carolina enacted a statute

permitting judges to recuse themselves from performing marriage ceremonies due to “sincerely held religious objection.” The recusal applies

to all marriages, not just same-sex marriages, and the state has to provide a substitute magistrate to perform the ceremony. N.C. Gen. Stat. 51-

5.5. The recusal form is at


In June of 2015, the Nebraska Judicial Ethics Committee

issued an Opinion saying that judges are not required to perform marriage ceremonies, but if they do they must not refuse to perform same-sex

marriage, regardless of the judge’s personal religious views. Neb. Jud. Ethics Com. Op. 15-1 (June 29, 2015). In August of 2015, the Board of

Professional Conduct of the Supreme Court of Ohio issued an Opinion saying that a judge who performs opposite-sex marriages cannot refuse

to perform same-sex marriages, and further saying that the refusal to perform any marriages in order to avoid performing same-sex marriages

reflects a lack of impartiality that may lead to disqualification in cases involving homosexuals. However, the Board acknowledged that it had no

authority to opine on a judge’s refusal to perform any marriages at all.

16 The Texas Pastor Protection Act established Texas Family Code Section 2.601, Rights of Certain Religious Organizations.

17 Opinion No. KP-2005, p. 2 (June 28, 2015)



18 Letter from Robert Soard, First Assistant County Attorney for Harris County, Texas, addressed to all Harris County Judges and Justices

of the Peace (July 1, 2015), available at Marriage_Ceremonies.pdf.

19 Rev. Rul. 2013-17, p. 2 (Aug. 29, 2013); IRS Notice 2013-61, ¶ 3.

20 IRS Notice 2014-19.

21 Rev. Rul. 2013-17 (Aug. 29, 2013); IRS Notice 2014-19, pp. 4-5.

22 Rev. Rul. 2013-17, p. 2 (Aug. 29, 2013).

23 Rev. Rul. 2013-17, p. 9 (Aug. 29, 2013).

24 According to The Texas Tribune, the intervening plaintiff needed the amended death certificate in order to obtain surviving spouse benefits to

help pay for the cost of cancer treatments. < >


25 Rev. Rul. 2013-17 p. 12 (Aug. 19, 2014).