On June 26, 2015, the United States Supreme Court handed down the opinion of Obergefell v. Hodges, recognizing for the first time a fundamental right to marry for same-sex couples. Justice Anthony Kennedy wrote for the majority and opened the opinion noting that, “The annals of human history reveal the transcendent importance of marriage. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.”
The court based its opinion on a lengthy analysis of four principles:
“The right to personal choice regarding marriage is inherent in the concept of individual autonomy.”
“The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”
Marriage “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”
“Marriage is a keystone of our social order.”
The court said, “These considerations lead to the conclusion 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.”
There was an implicit apology as the court addressed its prior decision in Baker v. Nelson (1971) and said, “The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.” Baker v. Nelson held that a state law limiting marriage to persons of the opposite sex did not violate the U.S. Constitution. After overruling Baker v. Nelson, the court explained, “New insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”
Of note, the majority acknowledged the argument that marriage is by its nature a gender-differentiated union of man and woman, saying, “This view long has been held – and continues to be held – in good faith by reasonable and sincere people here and throughout the world.” The decision was split 5–4; with four passionate descents. After, analysis we are left to ask what’s next? Will informal marriages of same-sex partners receive the same protection afforded opposite sex partners?
Texas Family Code Section 2.401 provides:
Proof of Informal Marriage
a. In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:
b. the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.
Section 2.401 clearly fails to provide the equal protection to same-sex couples that it provides to a marriage between a man and a woman.
Also, Texas Family Code Section 2.205 provides:
Discrimination in Conducting Marriage Prohibited
a. A person authorized to conduct a marriage ceremony by this subchapter is prohibited from discriminating on the basis of race, religion, or national origin against an applicant who is otherwise competent to be married.
Section 2.205 clearly fails to provide the equal protection to same-sex couples that it provides to others based on race, religion or national origin.
Texas Family Code Section 2.202 provides:
Persons Authorized to Conduct Ceremony
b. The following persons are authorized to conduct a marriage ceremony:
a licensed or ordained Christian minister or priest;
a Jewish rabbi;
a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony;
(a judge or retired judge)
By striking the words, “a man and a woman,” a court can modify the section, and in doing so protect the thousands of couples that previously “agreed to be married,” “lived together” in Texas afterward as spouses and represented to others that they were married. Will that modification apply retroactively? If prior civil unions or agreements between partners are suddenly recognized as valid marriages in Texas, then it will take a divorce to dissolve them.
To expand the due process and equal protection guarantees found in Obergefell to Texas Family Code 2.205, will require a court to add the word, “sex,” to the statute. Historically, courts have been less eager to add words than to strike them, and therefore, this extension will likely require legislative action.
Obergefell is law, and the matter of a same-sex couple’s entitlement to be married is settled for state purposes, the matter of common-law marriages for same-sex couples is now ripe for litigation and at least in our national debate, who must perform those marriages will be the next question. Dennis A. Fuller