By: T. Hunter Lewis and Whitney N. Keltch
A lot has happened since 2013 in the realm of same sex marriage. To catch you up to speed, the U.S. v. Windsor case came down on June 26, 2013, requiring the federal government to recognize same sex marriages that are conducted lawfully in the states where the parties reside. See U.S. v. Windsor 133 S. Ct. 2675 (2013), Though a step towards full legal recognition of same sex marriages, this decision specifically allowed states to continue to define who can be married. Texas, in turn, continued to disallow same sex marriages. Then, on June 26, 2015 (precisely two years after Windsor), our Supremes finally afforded equal protection and recognition to same sex marriages throughout the entire United States. Specifically, the majority held "that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them." Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015).
So where does this leave Texas law? The truth is we are still figuring it out. In fact, our current Texas Family Code contains several statutes which contradict Obergefell. We still have provisions in both the Texas Family Code and the Texas Constitution defining marriage as only between a man and a woman. Further, the Texas Family Code still recognizes only an informal marriage between a man and woman and does not recognize other statutory relationships found in other states, such as domestic partnerships. Also, the Texas Family Code still contains presumptions of paternity which arguably may or may not be afforded to same sex couples.
With all that being said, courts in Texas are already dealing with these issues. Let’s start with the idea of informal marriage aka "common law" marriage. The only requirements for common law marriage under our Texas Family Code are that the parties must agree to be married, reside together, and hold themselves out as married. The question arises as to whether informal (or even formal) marriages can be recognized in Texas prior to the Obergefell ruling, and whether the ruling itself is retroactive. Though cases have been filed concerning the issue of retroactivity, unfortunately, no appellate decision has yet addressed it in Texas. So, for the time being, the answer depends on where the case is filed.
Interestingly, Judge Guy Herman in Travis County, Texas back dated a same sex common law marriage for purposes of a probate case. See Interlocutory Judgment Declaring Heirs in Estate of Stella Marie Powell, Cause No. C-1-PB-14-001695, October 5, 2015. The deceased, Stella Marie Powell, and her partner, Sonemaly Phrasavath, had a longtime relationship with each other and Ms. Powell passed away prior to the Obergefell ruling. When Ms. Powell passed away, Ms. Phrasavath filed a Motion for Summary Judgment on August 25, 2015 to be able to inherit as a spouse would inherit, based on their common law marriage. Despite the Attorney General’s intervention, the Court found on October 5, 2015 that the two did in fact have a common law marriage. See Interlocutory Judgment Declaring Heirs in Estate of Stella Marie Powell, Cause No. C-1-PB-14-001695, October 5, 2015.
As for issues concerning children, for children born after June 26, 2015, both same sex parents can put their names on the birth certificate. Further, for those children born prior to June 26, 2015, whom only one parent’s name appears on the birth certificate, those need to be amended to prevent any confusion in the event of litigation (a possible custody battle) or even for inheritance purposes. Fortunately, the Texas Department of State Health Services issued a memorandum opinion after Obergefell, on August 12, 2015, which has been adopted and controls how the State will comply with the Supreme Court decision. Many issues concerning amending birth certificates and death certificates can be resolved through a simple form. In terms of same sex couples gaining parenting rights, there is still ample litigation which must occur. General standing will be a hot button issue, as many same sex couples who reared children prior to Obergefell will be able to gain standing solely based on possession. However, if couples fight and separate, that standing may be at issue.
The case law is slowly but surely beginning to answer some of the questions that lawyers and same sex couples have as it relates to the application of the Obergefell case. Additionally, our next legislative session will occur in 2017. Hopefully with some thoughtful legislative updates, we can continue to go towards infinity and beyond to expand and define the rights of same sex couples and their children.
 This case is currently on appeal, with the State of Texas appealing the Probate Court’s findings