Another judge finds Texas’ ban on same sex marriage to be unconstitutional

This ruling is a bit more narrow, however.


A Travis County judge ruled Tuesday that the Texas ban on gay marriage is unconstitutional, but there was no rush to the altar after county officials — scrambling to assess the impact of the judge’s 3 p.m. order — declined to begin issuing marriage licenses to same-sex couples, at least for now.

Probate Judge Guy Herman’s ruling, which affects only Travis County, came as part of an estate fight in which Austin resident Sonemaly Phrasavath sought to have her eight-year relationship with another woman, Stella Powell, declared a common-law marriage. Powell died last summer of colon cancer.

After an hourlong hearing in the downtown Austin courthouse, Herman found that the state ban on gay marriage violated the U.S. Constitution’s promise of equal protection and fair treatment under the law.

Whether the women’s relationship was a common-law marriage — which would entitle Phrasavath to a share of Powell’s estate — will be decided at a future date.

“It was never about property rights or about property,” Phrasavath said after the hearing. “At least for me, it was about standing up for my relationship and my marriage. If I didn’t do that, I would absolutely have no voice.”


Travis County Clerk Dana DeBeauvoir, who praised Herman for his ruling, reluctantly declined to begin issuing marriage licenses to same-sex couples “at the present time,” but said county lawyers are examining the decision to determine her options.

“Right now, I think it’s no, but we are checking,” DeBeauvoir said.

Michael Knisely, the attorney for Powell’s siblings who opposed Phrasavath’s claim on her estate, said no decision had been made on whether to appeal.

Texas Attorney General Ken Paxton last month declined to intervene in the case and thus isn’t in a position to ask the 3rd Court of Appeals to review Herman’s ruling. “Our office is reviewing today’s ruling from Travis County,” Paxton spokeswoman Cynthia Meyer said.

See here for the background. This ruling only affects Travis County, as Herman is a county judge. Obviously, there are the SCOTUS and Fifth Circuit appeals for the federal lawsuit, as well as the request to the Fifth Circuit to lift the stay on the original ruling. In the meantime, despite his initial lack of reaction, Ken Paxton isn’t sitting still.

Attorney General Ken Paxton on Wednesday asked the Texas Supreme Court to issue an emergency order blocking a local probate judge’s ruling that the state’s same-sex marriage ban is unconstitutional.


Paxton is petitioning the state’s highest court to immediately halt the ruling’s effect because it is “unnecessary and overly broad” and could give rise to “legal chaos” if county clerks interpret it to mean they can begin issuing marriage licenses to same-sex couples, according to the attorney general’s petition.

“The probate judge’s misguided ruling does not change Texas law or allow the issuance of a marriage license to anyone other than one man and one woman,” Paxton said in a statement.

And neither is Equality Texas:

Earlier today, Equality Texas called upon Travis County Clerk Dana DeBeauvoir to follow the law in Travis County and immediately begin issuing marriage licenses to same-sex couples in Travis County.

On Tuesday, Travis County Judge Guy Herman issued a ruling finding that the restrictions on marriage in the Texas Family Code and in the Texas Constitution that restrict marriage to the union of a man and a woman and prohibit marriage for same-sex couples are unconstitutional because the restrictions violate the Due Process Clause and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. Contrary to the county clerk’s position previously stated in the media, this ruling in fact allows her to immediately issue marriage licenses to same-sex couples in Travis County.

“Travis County Clerk Dana DeBeauvoir previously stated she would be happy to issue marriage licenses to same-sex couples once the law allows for it. The law in Travis County now allows for the freedom to marry. Equality Texas calls upon the county clerk to stand with us–on the right side of history,” Equality Texas Executive Director Chuck Smith said.

Just as the Supreme Court may issue a marriage ruling this summer that applies to all 50 states, and just as the 5th Circuit Court of Appeals may issue a marriage ruling any day now that applies to the 5th Circuit, Judge Herman has issued a ruling that has the effect of law in Travis County.

So things are happening, and they may change quickly. Stay tuned.

UPDATE: According to BOR, Travis County Clerk Dana deBeauvoir did issue a marriage license to a same-sex couple this morning. Wow.

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One Response to Another judge finds Texas’ ban on same sex marriage to be unconstitutional

  1. Kenneth Fair says:

    This case is fascinating to me as a probate litigator because (a) I had been expecting a case like this for some time now, and (b) I had no idea it was happening until I saw this news this morning.

    Guy Herman is the statutory probate judge for Travis County, one of eighteen statutory probate judges around the state. He is one of the longest-serving statutory probate judges and is well-respected in the probate community. He has served as the administrative statutory probate judge (who coordinates the activities of the other probate judges) several times.

    Statutory probate courts are interesting courts because their jurisdiction is both narrow and broad. It is narrow in the sense that the only cases they hear are those that are related to the estate of someone who is incapacitated or deceased. But their jurisdiction is broad because they can hear any kind of case related to an estate. So probate judges sometimes hear personal injury cases, or divorce cases, or other such matters.

    Most same-sex marriage cases arise when those seeking to get married apply for a marriage license and are denied. They then sue the county clerk and/or other officials charged with enforcing the laws concerning the issuance of marriage licenses. So the ruling in such a case clearly binds the appropriate officials regarding marriage licenses.

    Here, however, the issue concerns the distribution of the deceased woman’s estate under the laws of descent and distribution in Texas. A ruling in this case wouldn’t bind the county clerk, because she isn’t a party to the case. Technically, the only parties bound are those who have an interest in the deceased woman’s estate.

    I’m trying to get a copy of Judge Herman’s ruling, because I’d like to see how he addressed the issue.

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