While state laws and court decisions are ever-changing in this area of family law, it still goes without saying that issues surrounding same-sex marriage remain contentious across the country. Currently a majority of states do not recognize gay marriage, most of which ban same-sex marriage in their respective state constitutions. Four states ban gay marriage by state law, but have no ban in their constitutions.
In 2005 the people of Texas voted to ban gay marriage in its constitution. At that time only the State of Massachusetts recognized same-sex marriage. Now, over eight years later, sixteen states and the District of Columbia allow gay marriage. In the very near future, both federal and state courts will once again weigh in on issues surrounding gay marriage in Texas.
A federal judge in San Antonio will hear arguments in February of 2014 regarding two gay couples who wish to have their unions recognized by the state as a legal marriage. The Texas Supreme Court will also hear arguments regarding gay divorce - whether a gay couple married in a state that recognizes same-sex marriage can be divorced legally in Texas. The U.S. Supreme Court has also weighed in since the Texas constitutional amendment in 2005. In June of 2013 the U.S. Supreme Court held that same-sex couples were eligible for federal benefits, striking down the Defense of Marriage Act, a federal law passed during the Clinton administration that defined marriage as between a man and woman.
Texas has already loosened its traditionally narrower view of the legal rights of gay citizens. The Texas National Guard has agreed to give benefits for same-sex partners, for example, despite its previous refusal to do so. The change came after Defense Secretary Chuck Hagel publicly stated that he would not tolerate separate treatment of military members because of sexual orientation. Texas Attorney General Greg Abbott, whom many polls show as the leading candidate to be the State's next governor, has yet to issue a legal opinion as to whether this violates the Texas Constitution.
Many state legislators not eager for change
While many states and courts have recently changed laws and views regarding same-sex marriage, many state legislators in Texas have gone on record as opposing any change to existing state law on the issue. That is why many experts think this fight will play out in state and federal court, rather than by any new law or at the ballot box.
Family law issues still apply to same-sex couples
Regardless of what occurs in the court system, same-sex couples in Texas still find themselves with a myriad of issues when it comes to family law. Prenuptial agreements between same-sex couples are legally valid in the state and may greatly help a same-sex couple in the event of a future separation. Issues related to adoption, child custody, and child support may also arise. Because this area of law can be complicated and individual circumstances vary, same-sex couples in Texas with a family law issue should contact an experienced family law attorney to discuss their situation and best steps moving forward.
Prepared by Matthew J. Hill, Managing Member of M. J. Hill & Associates, PLLC.