The State of the Law for LGBT Americans After the Fall of DOMA
LGBT Texans who are legally married in another state are unable to divorce in Texas; unable to inherit under Texas intestacy laws; unable to obtain benefits available through the Texas Workforce Commission; unable to be listed as a spouse on a death certificate or birth certificate; unable to apply for and to obtain federal benefits available to spouses at Texas military installations even though those same benefits are available at federal military installations; unable to exercise the spousal evidentiary privilege in state criminal prosecutions, unable to make medical decisions for their spouses, and unable to visit their spouses in the hospital.  These are just a few of the examples which present very real every day occurrences to LGBT Texans in our state.

In the United States Supreme Court’s landmark decision in the United States v. Windsor, 133 S. Ct. 2675 (2013), the Court held that restricting U.S. federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions, as set forth in Section 3 of the Defense of Marriage Act (DOMA), was unconstitutional under the Due Process Clause of the Fifth Amendment, because doing so “disparage[s] and … injure[s] those whom the State, by its marriage laws, sought to protect in person-hood and dignity.”Windsor, 133 S. Ct. at 2696.  Prior to the Windsor decision, same sex couples were denied approximately 1,038 federal rights.  See Report of the United States General Accounting Office, January 23, 2004;http://www.gpo.gov/fdsys/pkg/GAOREPORTS-GAO-04-353R/pdf/GAOREPORTS-GAO-04-353R.pdf. Since the decision, the federal government has extended the following federal rights, privileges and benefits to married same-sex couples:

(1)All same-sex couples who are legally married are recognized as such for federal tax purposes, even if the state where they live does not recognize their union;

(2)Federal employees in same-sex marriages can apply for health, dental, life, long-term care and retirement benefits;

(3)legally married same-sex seniors on Medicare are eligible for equal benefits and joint placement in nursing homes;

(4)Death benefits are paid to survivors of a same-sex marriage by the Social Security Administration;

(5)the Department of Homeland Security treats same-sex spouses equally for the purposes of obtaining a green card if the spouse is a foreign national;

(6)the Justice Department instructed its employees to give lawful same-sex marriages the same rights as heterosexual married couples in all programs it administers, whether or not the activity occurs in a jurisdiction that recognizes same-sex marriage, including the right to decline to testify against a spouse, spousal privileges for prison inmates, eligibility for joint bankruptcy filing, and access to such federal programs as the Sept. 11 fund to compensate victims of the terrorist attacks and the compensation program for the surviving spouse of a public safety officer killed in the line of duty;

(7)family medical leave benefits under the Family Medical Leave Act 1975 were extended to married same-sex couples in all of the U.S.;

(8)with respect to social security and veterans benefits, same-sex married couples who live in states where same-sex marriage is recognized are eligible for full benefits from the Veterans Affairs (VA) and the Social Security Administration (SSA).

However, the VA and SSA can provide only limited benefits to married same-sex couples living in states where same-sex marriage is not recognized because of the underlying language of the statues which define eligibility for benefits based on the state of domicile.

Article I, Section 32 of the Texas Constitution of Texas states “Marriage in this state shall consist only of the union of one man and one woman.”  Section 2.001 of the Texas Family Code prohibits a clerk in any Texas County from issuing a marriage license to persons of the same gender. Texas Family Code Section 6.204 declares void all marriages between persons of the same sex and all civil unions.  It also prohibits the State or any of its agencies or political subdivisions from recognizing same sex marriages.

On October 28, 2013, two same-sex couples, Plaintiffs Mark Phariss & Victor Holmes and Plaintiffs Cleopatra De Leon & Nicole Dimetman, filed a federal lawsuit in San Antonio, Texas seeking: (1) the right to marry in Texas and (2) the right to have their valid Massachusetts marriage legally recognized in Texas, respectively.

On February 26, 2014, U.S. District Court Judge Orlando Garcia, stated:

The issue before this court is whether Texas’ current definition of marriage is permissible under the United States Constitution. . . . . After careful consideration, and applying the laws as it must, the Court holds that Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process. Texas’ current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason. Accordingly, the Court finds these laws are unconstitutional and hereby grants a preliminary injunction enjoining Defendants (Rick Perry, Greg Abbott et al) from enforcing Texas’ bans on same-sex marriage.

See De Leon v. Perry, Cause No. SA-13-CA-00982-OLG, 2014 U.S. LEXIS 26236, at *1, *3-*4  (W.D. Tex. Feb. 26, 2014), on appeal to the 5th Circuit in Cause No. 14-50196.

The ruling was appealed to the United States Court of Appeals for the 5th Circuit. The questions before the 5th Circuit are whether Texas’ prohibitions on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process.

The first U.S. Circuit Court of Appeals to rule on the constitutionality of a state’s same sex marriage bans was the Tenth Circuit, which on June 25, 2014, affirmed the decision of the district court, finding that Utah’s ban on same-sex marriage was unconstitutional, but stayed its mandate pending petition to the Supreme Court.See Kitchen v. Herbert, No. 13-4178; 2014 U.S. App. LEXIS 11935, at *1 (10th Cir. June 25, 2014). The Tenth Circuit includes Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

On July 29, 2014, the 4th Circuit struck down Virginia’s ban on same-sex marriage. The 4th Circuit includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia.Bostic v. Schaefer, No. 14-1167, No. 14-1169, No. 14-1173, 2014 U.S. App. LEXIS 14298, at *1 (4th Cir. July 28, 2014).

On August 6, 2014, the 6th Circuit heard oral arguments in several cases challenging state laws banning same sex marriage. The 6th Circuit includes Ohio, Michigan, Tennessee, and Kentucky.

As of August 1, 2014, there were pending marriage equality lawsuits in all states that do not currently allow same-sex couples to marry, and in all Circuits of the U.S. Courts of Appeals in which not all states allow same-sex couples to marry.[1]

Because the Texas laws arguably violate the U.S. Constitution under the precedents established in Windsor, De Leon v. Perry, the 10th Circuit, the 4th Circuit, and states that have found such laws unconstitutional, even if the 5th Circuit does not affirm the De Leon v. Perry decision, the United States Supreme Court will likely find that state laws prohibiting same sex marriage or from recognizing another state’s valid same sex marriage, are unconstitutional.

This post was written by
Shelly Skeen