Houston Estate Planning Blog

Texas Probate Judge Holds Gay Marriage Ban Unconstitutional

Texas Probate Judge Holds Gay Marriage Ban Unconstitutional

Yesterday (2/17/2015), a Texas probate court judge ruled that the Texas ban on gay marriage is unconstitutional.  In his ruling (which can be viewed here), Travis County Probate Judge Guy Herman stated that the state’s restrictions on creating or recognizing marriages of same sex couples “violate the due process clause and the equal protection clause of the 14th Amendment to the United States Constitution.”

The ruling was made as part of a fight over an estate where Austin resident Sonemalyh Phrasavath sought to have her eight-year relationship with Stella Powell recognized as a common law marriage.

Despite the ruling, the county will not yet issue marriage licenses to gay couples.  While happy about the ruling by Judge Herman, Travis County Clerk Dana DeBeauvoir stated that the county has not yet begun issuing marriage licenses because the ruling did not go so far as to make that instruction.  DeBeauvoir said the ruling is “a step in the right direction, but it’s not what we’re going to need to start acting just yet.”  DeBeauvoir called the ruling “such a great step toward marriage equality.”

This isn’t the first time the ban against same-sex marriage has been found unconstitutional in a Texas court of law.  In February 2014, Orlando Garcia, a federal judge in San Antonio overturned the state’s ban on same-sex marriage.  However, Garcia imposed a stay on his ruling, predicting that it would be appealed.  Gregg Abbott, who was Attorney General at the time, did in fact appeal the decision to the U.S. 5th Circuit Court of Appeals, which heard arguments regarding the case on January 9, 2015.  It has not yet issued a ruling, but it has been reported that in the hearings, two of the three judges appeared to raise serious doubt about whether the ban is constitutional.  The one judge on the panel who seemed to support states’ rights acknowledged the quick pace at which same-sex marriage bans have been overturned nationwide and stated that “it is hard to deny the trajectory.”

Ultimately, the Supreme Court may answer the question once and for all.  It has agreed to take on cases from four states where restrictions regarding same-sex marriage were upheld by a federal appeals court in Cincinnati.  If the Supreme Court decides that restrictions on same-sex marriage are unconstitutional, it would prevent any state from defining marriage as a union between a man and a woman.  The Supreme Court will render its decision by the end of its term this summer.

Texas is currently one of fourteen states that does not recognize same-sex marriage.

As an estate planning attorney, I find it interesting that this ruling came from a probate court judge, which aren’t typically faced with the constitutionality of state laws.  Also, one has to wonder what would have happened if Ms. Powell had an estate plan in place with a will that left everything to her partner.  Most likely, there would have been nothing to fight about in probate court and this ruling would never have been issued.


Reference: Lauren Raab, “Texas’ same-sex marriage ban is unconstitutional, county judge rules“, LA Times, February 17, 2015

Reference:  Alexa Ura, “Appeals Judge Raises Doubt on Gay Marriage Ban“, Texas Tribune, January 9, 2015