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foreign country, full faith and credit does not

apply and a court would have to rely on some

U.S. treaty to preempt state law on the issue,

or rest such recognition on the doctrine of

comity. An analysis of how the Full Faith

and Credit Clause argument for same-sex

marriages may affect future litigation can

be found in my article “Same-Sex Marriages

and Gender Identity Issues.”


Choice of Law Issues

If the Fourteenth Amendment does not

require all states to recognize a same-sex

marriage validly created in one state, and if

full faith and credit for a same-sex marriage

lawfully established in another state is not

required, there is the question of whether

Texas choice-of-law rules import the law of

other states or nations into a Texas court

proceeding. Generally speaking, there are

three places whose law could be applied

to the validity of a same-sex marriage: (i)

the law of the parties’ domicile at the time

of marriage; (ii) the law of the place of

celebration of the marriage; (iii) the law of the

forum where the lawsuit is filed. An analysis of

how choice-of-law rules may apply to same-

sex marriages can be found in my article

“Same-Sex Marriages and Gender Identity



Texas Law on Same-Sex Marriage

The Texas Family Code

When Title 1 of the Family Code was first enacted in 1969, Section 1.91 provided that “the marriage of

a man and woman may be proved “by evidence of an informal marriage. Section 1.01 said that “[p]ersons

desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of any

county of this state.” The statute was amended in 1973 to say “A man and a woman desiring to enter into a

ceremonial marriage . . . .” The statute is carried forward in current Family Code Section 2.001, which also

contains a prohibition against issuing a marriage certificate to persons of the same sex. In 2003, the Texas

Legislature enacted Section 6.204 of the Family Code, which reads:

§ 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.