Gavin Howe
Texas has had a tumultuous relationship with gay marriage legalization. While the U.S. Supreme Court legalized gay marriage nationwide in 2015, Texas has continued to challenge this ruling. Texas has unique laws that allow people to marry legally without a marriage ceremony or license, known as common-law or informal marriage. This is a valid way for same-sex couples to marry in Texas, despite the state's resistance to recognizing same-sex marriages performed in other states. The future of gay marriage in Texas remains uncertain as court challenges continue, impacting the rights and protections of LGBTQ+ individuals in the state.
| Characteristics | Values |
|---|---|
| Recognition of gay common-law marriage in Texas | Recognized as a result of the U.S. Supreme Court ruling in Obergefell v. Hodges, 2015 |
| Marriage application process for same-sex couples | Same as for every couple in Texas |
| Common-law marriage requirements | 1. Agreement to be married 2. Cohabitation in Texas 3. Representation of themselves as a married couple to others in Texas |
| Death certificates | Reflect surviving same-sex spouse |
| Divorce for same-sex couples in Texas | One of the two parties must establish residency in another state |
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What You'll Learn
Same-sex common-law marriage recognised in Texas
Same-sex marriage has had a tumultuous history in Texas. While same-sex couples can now marry in Texas, they still face challenges that opposite-sex couples do not.
In 2015, the United States Supreme Court issued its ruling in Obergefell v. Hodges, legalizing same-sex marriage across the United States. This ruling required states to recognize and license same-sex marriages.
However, Texas has a history of opposing gay rights. In 2017, the Texas Supreme Court delivered a blow to gay rights in a case regarding employee benefits. Additionally, Texas law has viewed same-sex couples as roommates, which has impacted their rights to property and assets.
Despite the legalization of same-sex marriage, same-sex couples in Texas still face challenges. For example, Texas does not currently allow same-sex couples to divorce in the state, requiring them to establish residency in another state to attain a legal divorce.
Same-sex couples in Texas can enter into an informal marriage or common-law marriage. Texas allows parties in an informal marriage to hold the earliest date at which they satisfied all the requirements of an informal marriage as their legal marriage date. Under the Texas Family Code, an informal or “common law” marriage may be proved with evidence that the parties agreed to be married, cohabitated in Texas as a married couple, and represented themselves to others in Texas as married.
The federal Respect for Marriage Act, passed in 2022, created additional statutory protections for same-sex marriages. This law requires all states to recognize valid same-sex marriages performed in other states, providing further support for the recognition of same-sex common-law marriages in Texas.
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The process of applying for a marriage license
Same-sex couples in Texas can enter into an informal marriage or common-law marriage. This is a legal marriage under Texas law, and it is recognised by all states. While the federal Respect for Marriage Act of 2022 does not require states to issue same-sex marriage licenses, it does mandate that all states recognise valid same-sex marriages performed in another state.
Now, here is a step-by-step guide to the process of applying for a marriage license in Texas:
Step 1: Check the Requirements
Before applying, ensure you meet the basic requirements for marriage in Texas. Both parties must be at least 18 years old (or have a court order if under 18), not already married, and not closely related to the other party.
Step 2: Prepare Necessary Documents
Gather valid, government-issued photo identification, such as a driver's license or passport. Your name on the marriage license will match your ID exactly, so ensure your ID is up to date. You will also need to provide your Social Security number and proof of residency if you are a Texas resident. If either applicant is under 18, a certified copy of their birth certificate and current school ID, driver's license, or state ID is required.
Step 3: Complete the Application
Many counties in Texas offer an online application process, which you can fill out and save online. However, both applicants must still appear in person to sign and purchase the marriage license. If one applicant is unable to be present, an absentee affidavit must be completed, and the other applicant can apply on their behalf.
Step 4: Submit the Application and Pay the Fee
Submit your completed application to the county clerk's office, along with the required fee. The standard fee is $16 for couples who have attended a state-approved Marriage Education Class and present a valid Twogether in Texas Certificate or similar premarital counseling certificate. Otherwise, a $100 Out-of-State Applicant fee will be assessed if neither applicant can prove Texas residency.
Step 5: Wait for Processing
There is typically a 72-hour waiting period after the license is issued before the marriage ceremony can take place. However, this waiting period can be waived under specific circumstances, such as if one of the applicants is in the armed forces and on active duty, or if a waiver is obtained from a District Judge.
Step 6: Receive Your License
Once the waiting period is over or waived, you will receive your marriage license. The marriage must take place within 90 days from the date of license issuance. After the ceremony, the completed license should be hand-delivered to the relevant office for recording.
Please note that this is a general guide, and specific requirements or processes may vary by county. Always refer to your local county clerk's office for the most accurate and up-to-date information.
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The legality of same-sex marriage in Texas
In 2015, the United States Supreme Court's landmark ruling in Obergefell v. Hodges legalised same-sex marriage across all US states, including Texas. This ruling established that states must recognise same-sex marriages and issue marriage licenses to same-sex couples, bringing Texas in line with the requirement to allow and acknowledge these marriages.
However, Texas has a complex history regarding same-sex marriage rights. In 2017, the Texas Supreme Court made a decision that negatively impacted gay rights, particularly concerning employee benefits for same-sex spouses. Additionally, Texas law has historically viewed same-sex couples similarly to roommates, which has resulted in challenges for same-sex couples regarding property rights and financial contributions during a marriage.
Despite the Obergefell ruling, same-sex couples in Texas have continued to face legal uncertainty. In 2022, the Sixth Circuit Court of Appeals upheld same-sex marriage bans in four states, while the Supreme Court declined to intervene. This created a situation where different Circuit Courts were in opposition, and it appeared that the Supreme Court would need to address the issue. As a result, same-sex couples in Texas were left in a state of limbo, unsure of their rights and the future of marriage equality in the state.
To further complicate matters, Texas has unique laws regarding common-law marriages, also known as informal marriages. Texas is one of the few states that recognise common-law marriages, which allows couples to marry without a formal licensing procedure or ceremony. While this applies to both opposite-sex and same-sex couples, the Texas statute about informal marriages still uses the phrase "husband and wife," which can cause confusion and concern for same-sex spouses.
In December 2022, the federal Respect for Marriage Act was passed, providing statutory protections for same-sex marriages. This law requires all states to recognise valid same-sex marriages performed in other states, ensuring that marriages are respected across state lines.
While there have been legal victories for same-sex marriage rights in Texas, the ongoing court proceedings and varying state and federal laws contribute to a complex and evolving landscape. Same-sex couples in Texas may still face challenges and should seek legal counsel to understand their rights and protections fully.
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The impact of the Obergefell v. Hodges ruling
Same-sex couples in Texas can enter into an informal marriage, also known as a common-law marriage. Under the Texas Family Code, an informal or "common-law" marriage may be proved by evidence that the couple agreed to be married, cohabitated in Texas as a married couple, and represented themselves to others in Texas as married.
Prior to the Obergefell ruling, same-sex marriage had already been established in 36 states, the District of Columbia, and Guam through various means, including statutes, court rulings, and voter initiatives. However, the Obergefell decision provided a uniform recognition across the country.
The ruling had wide-ranging implications for same-sex couples, including the ability to access employee benefits, establish parental rights, make decisions about living together, and plan for estate distribution upon death. It also impacted adoption rights, as seen in the case of two nurses who challenged a state law prohibiting adoption by same-sex couples. The ruling ensured that same-sex couples could adopt and provided equal rights in this regard.
Additionally, the Obergefell v. Hodges ruling set a precedent for future legal challenges and protections for the LGBTQ+ community, with the Supreme Court affirming the fundamental rights guaranteed to all by the Constitution. This decision also influenced the federal Respect for Marriage Act, passed in 2022, which created further statutory protections for same-sex marriages and replaced provisions defining marriage as between a man and a woman.
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Rights of same-sex couples in Texas
Same-sex marriage has had a long history in the US state of Texas. In 1973, following a same-sex couple's application for a marriage license in Wharton County the year prior, the Texas Legislature passed a bill requiring that marriages be between "a man and a woman". The bill was signed into law by Governor Dolph Briscoe. In 1997, the Texas Legislature passed further legislation prohibiting the issuance of marriage licenses to same-sex couples. In 2003, the Legislature enacted a statute explicitly banning same-sex marriages and civil unions. This statute also prohibited the state or any agency or political subdivision of the state from recognizing same-sex marriages or civil unions performed in other jurisdictions.
Despite this, same-sex common-law marriages are now recognized in Texas as a result of the ruling in Obergefell v. Hodges in 2015. The Supreme Court held that states must recognize same-sex marriage and issue marriage licenses to same-sex couples. This decision was reaffirmed by the federal Respect for Marriage Act in 2022, which created statutory protections for same-sex marriages and requires all states to recognize valid same-sex marriages performed in another state.
In Texas, common-law marriages, also known as informal marriages, may be proved with evidence that the couple: agreed to be married, cohabitated together in Texas as a married couple, and represented themselves to others in Texas to be married. Same-sex couples in Texas can enter into an informal marriage and hold, as their legal marriage date, the earliest date at which they satisfied all the requirements of an informal marriage.
The rights of same-sex couples in Texas include domestic partner benefits, establishing parental rights, buying property together, and providing for each other upon death. However, there have been instances where the Texas Supreme Court has delivered a major blow to gay rights, such as in the 2017 case regarding employee benefits. Despite opposition from high-profile politicians, polling suggests that a majority of Texans support the legal recognition of same-sex marriage, with a 2021 poll showing that 62% of respondents supported it.
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Frequently asked questions
Yes, same-sex marriage is recognized in Texas as a result of the U.S. Supreme Court ruling in Obergefell v. Hodges in 2015.
Yes, same-sex couples in Texas can enter into an informal marriage, also known as a common-law marriage.
A common-law marriage is a legal way for a couple to marry without a licensing procedure or marriage ceremony. In Texas, a common-law marriage may be proved with evidence that the couple agreed to be married, cohabitated in Texas as a married couple, and represented themselves as a married couple to others.
Common-law marriage provides a way for same-sex couples to marry in Texas without a license or ceremony. It also allows couples to hold the earliest date at which they satisfied the requirements of an informal marriage as their legal marriage date.
