Same-Sex Marriage in Texas – Legal or Not?

On Tuesday, Travis County Probate Court Judge Guy Herman held Texas’ ban on same-sex marriage was unconstitutional.  The ruling came as part of an estate fight in which Sonemaly Phrasavath sought a finding that she had a common-law marriage to the late Stella Powell.

Phrasavath and Powell had been living together since 2007 and were “married” in 2008 in a ceremony performed by a Zen priest in Driftwood.  The ritual marriage was not valid under Texas law. A Travis County probate court became involved after Powell died intestate last summer.  This led to probate dispute over her estate between Phrasavath and Powell’s siblings. Herman found merit to Phrasavath’s claim of common-law marriage and consequently ruled that the Texas ban on same sex marriage was unconstitutional.

The Austin American-Statesman reports that Herman’s ruling is not immediately changing the rules for other same-sex couples who want to be married in Texas.  County officials who are considering the impact of Herman’s order have not begun issuing marriage licenses to same-sex couples.

Travis County Clerk Dana DeBeauvoir, who praised Herman for his ruling, said she will confer with county lawyers to determine her options. “I am scrambling, trying to find out if there is anything I can do. Right now, I think it’s no, but we are checking,” said DeBeauvoir, who in the past has said that she was ready to begin distributing marriage licenses to same-sex couples as soon as allowed by the courts.

What is clear is that Texas Attorney General Ken Paxton will not be able to challenge Herman’s ruling on appeal.  Texas litigants are required to notify the AG’s office in any case in which the constitutionality of a statute is challenged in order to allow the state to intervene to defend the statute.  Paxton’s office declined to do so and cannot now challenge Herman’s ruling.  Powell’s siblings have not indicated whether they plan to appeal.

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