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Judge Issues Ruling Recognizing Gay Common-Law Marriage in Texas

Judge Issues Ruling Recognizing Gay Common-Law Marriage in Texas

Court finds gay couple were in a common-law marriage, even before Obergefell ruling was issued.

When the U.S. Supreme Court ruled that there was a right under the Fourteenth Amendment to gay marriage in Obergefell v. Hodges, this meant that the marriage laws in each of the states had to be interpreted without discriminating against same-sex couples.

As I wrote here last month, “[f]or gay couples living in a state that allows common-law marriage, especially those states that did not allow gay marriage prior to the Obergefell decision, they may find themselves meeting their state’s definition of a common-law marriage.”

Now, this has become a reality. A judge in Texas has issued a ruling recognizing a same-sex common-law marriage.


Key issue: Did the couple hold themselves out to the public as married?


In most cases where the court is attempting to determine if a common-law marriage exists, the key legal inquiry is whether the couple had held themselves out to the public as married. With many gay couples having wedding celebrations even before their states legally recognized them, and calling each other “husband and husband” or “wife and wife,” that certainly seems likely to meet the standard to establish a common-law marriage.

That was the reasoning used by Travis County Probate Judge Guy Herman earlier this week, finding that two Austin women were in a common-law marriage. As the Austin American-Statesman reported, Stella Powell and Sonemaly Phrasavath began dating in 2006. In 2008, they had a wedding ceremony performed by a Zen Buddhist priest even though Texas did not recognize gay marriage at that time. Powell and Phrasavath also “lived openly as spouses in a Northwest Austin home,” according to the Statesman, until Powell passed away from cancer in 2014.

During Powell’s battle with cancer, the couple had begun drawing up a will that spelled out Powell’s wishes, but she died before the forms were properly signed and notarized. A battle between Phrasavath and Powell’s relatives then ensued, with the family arguing that since Texas did not recognize same-sex marriages, Phrasavath had no right to Powell’s estate


But what about the timing?

Texas Attorney General Ken Paxton filed a motion to intervene in the case, saying that the Supreme Court’s ruling in Obergefell did not apply because Powell had passed away before that ruling was issued.

“Phrasavath asks the court to reach back in time and declare that a relationship that at all points of existence could not have been a valid marriage under Texas law is now — over a year after the death of one spouse — a valid informal marriage under Texas law,” said Paxton in the motion filed by his office. “The court should not rewind history and supplant statutory requirements to establish as valid what state law at the time foreclosed as invalid.”

In my original article on this story, one of the family law attorneys I interviewed for background theorized that courts would use the date of the Obergefell decision as the date to start ticking the clock for determining the existence of common-law marriages, as Paxton had argued.


Judge’s ruling: Obergefell was not a time barrier.

However, Judge Herman disagreed, and did not treat Obergefell as a time barrier, ruling that there had in fact been a valid common-law marriage between the two women. Accordingly, Phrasavath was entitled to inherit part of Powell’s estate under the Texas law allowing a spouse to automatically inherit where there is no valid will.

Phrasavath’s attorney, Brian Thompson, told the Statesman that their goal for the case was to have his client and Powell “treated like any other couple” under the law. “And now we know that other same-sex couples are going to be treated equally, not just in Travis County but now I think we have precedent for the state of Texas.”

Paxton’s office is considering filing an appeal, and of course Powell’s family could appeal as well. But for now, we have a case on the books that states that same-sex couples, at least in Texas, can be found to have established common-law marriages even before the Obergefell opinion was issued.


Gay or straight, put it in writing.

This all comes back to the advice from the attorneys I shared before: if the romantic relationship has not yet been formalized by a legal marriage recognized by the couple’s state of residence, then find an attorney to formalize it in a written agreement.

“I’d give the same advice [to gay couples] I’d give straight couples,” said Trabin. “It is always a good idea to have something in writing, about the respective rights and responsibilities, and financial implications, if they ever stopped being a couple.”

…“There’s nothing romantic about it but it’s still a good idea [to put the relationship in writing],” said Trabin. Regardless of whether the couple entered into an agreement before or after they moved in together, or if they were gay or straight, “there are going to be financial consequences and they need to be aware of that.”

True, it may not be the most romantic, but spending an afternoon sitting in an attorney’s office is better (and cheaper) than spending months in court.

UPDATE: An alert reader informed us that James Fritsch and William Parker, a gay couple living in the Dallas area, received legal recognition of their common-law marriage a few weeks prior to Powell and Phrasavath, the couple described in this article. Therefore, Powell and Phrasavath’s same-sex common-law marriage is not the first to be recognized in Texas and the article has been updated accordingly. It is interesting to note that Fritsch and Parker also argued that the date of their marriage preceded the Obergefell decision and sought recognition for that date, successfully.

Follow Sarah Rumpf on Twitter @rumpfshaker.


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So go back and retroactively make it a felony to file a suit against anyone who refuses to celebrate or facilitate a gay wedding.

That should clear up a bunch of law suits and local laws used to persecute Christians.

What? The law doesn’t work for the citizens and only to disintegrate society? Well that’s a surprise.

This is the kind of spit-storm you predictably have when you revolutionize a fundamental cultural norm by a single vote from a fiat-pronouncing body instead of an appellate court.

It’s what you get when you create a brand new, unheard of, and cut-from-whole-cloth “law”…and MUCH worse “RIGHT”.

Did a common-law marriage exist where it COULD NOT exist? By law. Or was it always just peachy, because…ruling?

Expect a lot more of this crap, as courts try mightily to deal with the falsehood of “gay marriage” and the “right” to marry.

    But, but, love is a constitutional right. SCOTUS said so.

    The constitution, if it grants ‘rights’ at all, grants rights only to the government; all other rights, enumerated or not, reside with the states and or the people. This nation was founded upon those two principles in order to establish the foundations for individual liberty and freedom.

    Marriage itself was a fait accompli that our government simply could not avoid. Our nation failed its charter when it provided ‘benefits’ to those who were married over those who were not married.

    Those marriage benefits were granted under the naïve assumption that the benefits of marriage would accrue to the community and state as a whole and should be encouraged.

    The only legal solution to abuse of these benefits is for the state to eliminate them. This would not, of course, protect our morality, traditions and language.

Technically, the concept of secular marriage is not restricted to relationships that include sexual congress.

Whether it is elective abortion, clinical cannibalism, or narrowly constructed congruences, the State-established pro-choice cult continues to beclown itself.

buckeyeminuteman | October 12, 2015 at 12:59 pm

So the right to marry was so important for these homosexuals that they didn’t even bother to get married? I’m confused.

    Ragspierre in reply to buckeyeminuteman. | October 12, 2015 at 1:30 pm

    “In 2008, they had a wedding ceremony performed by a Zen Buddhist priest even though Texas did not recognize gay marriage at that time.”


    “Powell passed away from cancer in 2014.”

    The piece ALSO notes they started the process of will-making prior to Powell succumbing to cancer, but did not bother to finish the process.

    So, now Phrasavath is trying to claim common-law marriage status to get the benefits of Texas community property law.

No offence intended for people that disagree with Obergefell v. Hodges, but the judge got it right. A law that cannot stand constitutional challenge is not enforceable ever.

So in this instance there is no clock start. Put it this way. Today congress passes a law saying it is illegal to drink milk. Tomorrow you get caught drinking milk and are sentenced to 10 years in prison, you don’t appeal. 2 years later someone else gets caught drinking milk, gets charged the same, gets sentenced the same, but they appeal. On appeal they win. And the court says that it is unconstitutional for there to be a law prohibiting drinking milk. So you think that you should stay in prison after a law was determined to be unconstitutional, just because you were imprisoned and gave up your right to appeal?

Because if you don’t agree with this judge that is essentially what you are saying.

Please get over it, I am very much a conservative, but religion has no place in a government’s definition of what a marriage is. The judges got it right in Obergefell v. Hodges. Like it or not they truly did get it right.

    Ragspierre in reply to starride. | October 12, 2015 at 2:44 pm

    Yea, no. You’re full of crap, not any part a “conservative” and your analogy is inane.

    Let’s deal with a much more apt analogy…

    The states have ALWAYS had the power to decide who may practice medicine. The practice of medicine…like the privilege to marry…has ALWAYS been permissive. That is, it isn’t a “right”. There are restrictions on it.

    Now, you may not LIKE those restrictions. But your fellow citizens have stated via referendum or via their elected representatives…which have NOTHING to do with religion in many cases…have supported those restrictions.

    Now, you, of course, MAY see an unlicensed quack of your choice. That does not give you the rights under a “doctor/patient” relationship. You chose a “not doctor”.

    But you and a tiny minority of other odd-balls successfully market the idea that there is a FEDERAL right to practice medicine. You manage to get 5 justices on the Supremes to agree to this new, novel, and UNCONSTITUTIONAL edict.

    NOW, according to your doctrine, you should use the state courts to go back into time to sue your NOT doctor quack under state malpractice law. And there are no time restrictions.

    Try that!

      starride in reply to Ragspierre. | October 12, 2015 at 4:40 pm

      Sorry rags but your scenario is on mars, no it is so far out there it is outside of our solar system, practicing medicine affects others. Getting married or living as a married couple only affects the two in question. Practicing medicine should and is managed by the government. Marriage on the other hand…….

      1. Marriage is a fundamental human right that has existed as long as written history; legal rights based on marital relationships have existed as far back as the Code of Hammurabi, about 3,800 years ago.

      2. Designating marriage as a “religious institution” is purely and simply wrong; people are entitled to marry regardless of whether they have a religion or not.

      3. Because marriage is a fundamental human right which transcends the Constitution, if the government chooses to regulate it by licensing, or by granting certain rights based on a marital relationship, the Fourteenth Amendment guarantees equal protection under the law.

      4. No person can deny people the fundamental right to marry by withholding government-required licensure; that constitutes a violation of the Fourteenth Amendment equal protection clause.

      5. Everyone has a First Amendment right to free exercise of religion, but that person is prohibited from denying people equal protection of the law on the basis of those religious beliefs, which is a violation of the First Amendment establishment clause.

      6. People have a First Amendment right to freedom of speech, so they still have a right to publicly object to same-sex marriage, just like they still have a First Amendment right to object to interracial marriage after Loving v. Virginia. And others have a First Amendment right to call them on it.

      What I’m tired of is hearing people demand that their point of view should be the rule of law because their deity says so. That is no different than ISIS imposing sharia law wherever they go. I’m sure that some of those people will insist that it’s not the same because their religion is the “right one.” But as far as the First Amendment of the United States Constitution is concerned, it doesn’t make a difference.

      And yes I am a conservative just not a religious nut case, my belief is that the constitution trumps all other laws and will fight to the death to defend it. Most people talking on this thread can’t tell the difference between the fact that a true conservative while not liking something will accept it because it is the law of the land, where a liberal believes that if they don’t like something only their opinion matters.

        Ragspierre in reply to starride. | October 12, 2015 at 5:17 pm

        No. And you’re really too bigoted and too much of a legal and historical ignoramus to continue this with, beyond saying…

        I am not religious. I arrive at my conclusions based on reason and logic.

        Marriage at no time in history, or any place on the planet, has been considered “a fundamental human right”. The opposite has been true. Marriage was a PERMISSIVE rite. Whether from the tribal leaders, the clergy, the state…whomever…you had to get permission to marry. Even a common-law marriage is still bound by rules, and can be reversed by authority.

        Chuck gives a very pretty short-course on what I’m saying a different way. You should try to comprehend both.

        This whole thread is about how the marriage relationship is actually MUCH more socially and culturally involved than would be your interaction between you and your quack.

        But you can’t think past your bigotry, so I’ll just leave you with a very sound analogy that others might find useful.

          starride in reply to Ragspierre. | October 12, 2015 at 5:33 pm

          I guess you use a different dictionary than I.

          A person who is intolerant toward those holding different opinions:

          Having or revealing an obstinate belief in the superiority of one’s own opinions and a prejudiced intolerance of the opinions of others:

          Show me your logic in how anything I said in my reply was wrong under the constitution. Please do but make it honest and to the point instead of circumspect.

          And though Chuck makes a point of legal rights about love he fails miserably to address dower rights surrogate authority, equality under federal and state tax law and many many others.

          Just about all of the other things Obergefell v. Hodges flipped on its head.

          Ragspierre in reply to Ragspierre. | October 12, 2015 at 5:53 pm

          “Show me your logic in how anything I said in my reply was wrong under the constitution.”

          I already did. Your root premise is complete bullshit. Everything else you say is irrational, illogical, mostly circular or simple declaration of a very wrong set of opinions.

          And if you can’t see your own bigotry, well… It ain’t my job, son.

          Milhouse in reply to Ragspierre. | October 14, 2015 at 8:49 am

          Marriage at no time in history, or any place on the planet, has been considered “a fundamental human right”. The opposite has been true. Marriage was a PERMISSIVE rite. Whether from the tribal leaders, the clergy, the state…whomever…you had to get permission to marry.

          Rags, that is simply not true. Throughout known history, in pretty much every society, no adult ever needed someone else’s permission to marry, and minors needed only their father’s permission. (There were some very rare execeptions, such as members of the royal family, but if they married without permission the marriage was valid, and they would forfeit their special privileges.)

          Ragspierre in reply to Ragspierre. | October 14, 2015 at 10:01 am

          No, milhouse. You are simply WRONG. In EVERY culture, marriage was a matter of privilege (i.e., qualification). You didn’t simply show up and demand to get married by the authority figure and have your people recognize you as married. There were, in many cultures, means tests for the men, for instance.

          It was common in warrior cultures for a man to have proven himself a warrior before he could THINK about taking a bride.

          Where do you even get this bullshit?

          starride in reply to Ragspierre. | October 14, 2015 at 12:11 pm


          What I find most enlightening is that people don’t realize that there was no sacrament of marriage until 1547 when the Council of Trent published the Sacraments. And there were no conditions of marriage until Tametsi in 1563.

          Prior to that most “marriages” were either civil unions or agreements of states and families for socioeconomic purposes. (It took me a while but I finally remembered my catholic education)

          While some cultures did require some prerequisites to marriage most of those originated around reaching adulthood and not about marriage itself.

        Starride, you just described anyone who disagrees with you on the concept of gay marriage as a Constitutionally-protected “fundamental human right”, as “a religious nut case.” If you’re not a bigot, you’re sure doing a pretty good impression of one.

          starride in reply to Amy in FL. | October 12, 2015 at 7:29 pm

          No I didn’t, I called Rags a religious nutcase because, and I quote “You’re full of crap, not any part a “conservative””
          He is arguing from emotion instead of logic.

          My global statement to everyone else was that a true conservative believes that the constitution including the 14th amendment, whether we like it or not, trumps state law under equal protection. And not one person commenting in this list has made even a single dent in that jurisprudence.

          They have talked around everything BUT what the decision really did and that was apply marriage rights and all of the legal ramifications included in marriage, equally across the board, regardless of sex and religion.

          And above that it seems people always forget the 9th amendment.

          The really frustrating thing for me is that I have been called several names by people that think they know everything but all of them are conveniently forgetting that an unstatutable law is not a law and not enforceable ever. And this dates all the way back to Marbury v. Madison 1803

          And if anyone disputes Marbury v. Madison please read the following:

          This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

          Ragspierre in reply to Amy in FL. | October 12, 2015 at 7:55 pm

          You apparently can’t read and have trouble with basic logic.

          Plus, you confuse edicts for jurisprudence, and the decision of one judge for the Constitution.

          Talk about not denting…!!!

          “Please get over it, I am very much a conservative, but religion has no place in a government’s definition of what a marriage is.”

          Clearly suggested your bigotry WRT what factors others use to determine the majority view of what the laws should be under a representative republic. Religion is the underpinning for most of our laws. Like it or not. Understand it or not. Comprehend it or not.

          Ragspierre in reply to Amy in FL. | October 13, 2015 at 8:55 am

          Well, several things we know about you…

          You ARE full of crap.

          You are a self-satisfied prig, which suggests you will remain full of crap instead of learning.

          You are a bigot.

          Milhouse in reply to Amy in FL. | October 14, 2015 at 9:00 am

          Amy, this is not about “gay marriage as a Constitutionally-protected fundamental human right”, but about marriage as a Constitutionally-protected fundamental human right. Rags denies that it is one, and he’s wrong. I disagree with Obergefell. I think marriage has always meant a contract between a man and a woman, and the court was wrong to change the term’s definition. But marriage has always been a fundamental right; all men have had the right to marry a woman and all women have had the right to marry a man, subject only to those generally-applicable restrictions that the state makes on a neutral basis.

          And I agree with starride that since this judge is bound by Obergefell he had no choice but to apply it in this case and recognise that the Texas statute restricting marriage to mixed-sex couples had always been invalid. The Supreme Court does not have the power to amend the constitution, so either Obergefell was always the law or it isn’t the law now. Since the judge is barred from finding the latter, he must find the former. Since I am not a judge, I vote for door 2.

          Ragspierre in reply to Amy in FL. | October 14, 2015 at 9:43 am

          You’re simply wrong, milhouse.

          Marriage has always been a PERMISSIVE rite in every culture.

          NOBODY had a “fundamental human right” to marry. If any such right existed in any person, they would have a right to compel someone to marry them!

          And, while any two (or more) people could mate and schup like minks, they NEVER have had, in any culture, a “right” to marry. There is no such “right” in Jewish culture, for instance.

        retire05 in reply to starride. | October 12, 2015 at 9:15 pm

        “What I’m tired of is hearing people demand that their point of view should be the rule of law because their deity says so.”

        Did it ever occur to you that some people do not support same-sex marriage based on the laws of nature, not religion? Even the ancient Romans, who were pagans, did not support/legalize same-sex marriage.

        “That is no different than ISIS imposing sharia law wherever they go.”

        For someone who is proclaiming their conservatism, you have the left wing talking points down pat.

        “And yes I am a conservative just not a religious nut case, my belief is that the constitution trumps all other laws and will fight to the death to defend it.”

        “religious nut case?” Seems, once again, you have the left wing lexicon down pat. And while I don’t always agree with Rags, he is no “religious nut case” but is versed in Texas common law.

        So do you also deem all state/local laws on firearms also unconstitutional? If states don’t have the right to put qualifiers on marriage laws, perhaps you should spend more time on the 10th Amendment which clearly outlines the purview of the federal government and marriage is not one of them. Marriage should be, as it has always been, under the control of the states, not the federal government. Marriage laws, and restrictions, are not mentioned in the U.S. Constitution and the 14th Amendment, which you seem to want to bastardize, specifically addressed race, not sexual orientation.

        If states don’t have the right to limit marriage laws, then they also don’t have the right to deny marriage between a father and daughter, mother and son or siblings. And make no mistake, that challenge is coming. Nor does the state have a right to limit the number of people you can marry at one time. Again, applying the 14th by your interpretation, the 10th Amendment is now moot.

          starride in reply to retire05. | October 12, 2015 at 10:49 pm

          Not supporting same sex marriage, I have no issue with it. Using religion to stop people from enjoying the same rights as a married couple just because of their sexual orientation, I have a big problem with that.

          Your 1st amendment rights allow you to say what ever you want about the subject. But show me the amendment that says you can do any more than just talk.

          Unfortunately when people get emotional about subjects they loose the ability to think and argue logically about a subject. The forget that their rights END where others start. Love it or hate it that is the basis of our country, that is the guiding principal behind everything else.

          Left wing/Right wing, are two sides of the same coin. I for one am disgusted with both sides. This country is not going to resolve it’s issues until both sides are able to sit down and talk honestly and directly about its issues, without emotion and declaring some one to be a bigot and other fine words.

          If there was one thing I have learned in life was that the minute you state words like bigot, “You’re full of crap” ect ect, you lose period, and yes I regret lowering myself to that level when I responded.

          As for firearms I honestly do not know how some of the laws have not been challenged. To me the Miller case is just as bad as Dred Scott was. This is another area where personal wants and beliefs are overriding the written words of the constitution. I would love to see someone try to place some of the restrictions already applied to the 2nd get placed on the 1st just to watch people scream.(not that I want to see it happen, just the attempt.)

          And as far as Rags knowing Texas common law I have no opinion what so ever. My point is simply that as soon as the state (including, local, state and federal) got into the marriage game and defined benefits, dower rights, tax incentives etc etc, the 14th says they have to be applied equally. Unfortunately some how the definition of marriage has become a 3 party contract, A+B+”The state”.

          Now as far as the armageddon statements regarding parents and children, familiar relationships, ect. I chose not to state an opinion on for the simple fact I am not presented with it at the moment.

          As for multiple spouses I can see that coming up in the courts well within my lifetime, regardless of the fact that I agree or not I have to defer to the law of the land as it is interpreted by the elected and or appointed representatives. Elections have consequences.

          forksdad in reply to retire05. | October 13, 2015 at 12:55 pm

          And those laws were 100% equal. Nobody homogamous or heterosexual could choose to marry someone of the same sex. There was no discrimination. Anyone who was not married or related by blood could make the same legal arrangements as anyone else regardless of their sexual practices or preferences.

          Your argument is a lie and a fantasy. The 14th doesn’t apply. The laws were equal for anyone. Show me where the law wasn’t applied equally. Certain people wanted to break the law with impunity but that did not change the fact that the law was the law.

          Now we have the very real possibility that the law will use its full force including prison and fines and ultimately deadly force (because that is what laws are backed by not chanting, signs, and lightshows at the White House) to force people to celebrate perversion and sin. If you cannot see that forcing the 98% to kowtow for the benefit of 2% to 5 people in black robes is tyranny most foul then you are deluding yourself.

        retire05 in reply to starride. | October 13, 2015 at 2:57 pm

        “Not supporting same sex marriage, I have no issue with it. Using religion to stop people from enjoying the same rights as a married couple just because of their sexual orientation, I have a big problem with that.”

        You’re full of hot air. Either you object to same-sex marriage, or you support it. You’re like the guy who says he doesn’t support abortion but hey, it’s a woman’s choice what to do with her own body.

        It’s a cop out. So we have one of two possibilities; either your lying or you are too cowardly to state a position.

        So while your parroting the gay lobby’s talking points, why don’t you tell us what states actually prevented gays from marrying prior to the unconstitutional SCOTUS ruling? What state asked a person their sexual preferences on a marriage license application prior? Because I can’t seem to find that answer anywhere on the internet.

        Gays were allowed to marry under the same constraints as heterosexuals. One man – one woman. The fact that they chose not to was a personal decision (you know, that whole “freedom” thing?).

        “My point is simply that as soon as the state (including, local, state and federal) got into the marriage game and defined benefits, dower rights, tax incentives etc etc, the 14th says they have to be applied equally. Unfortunately some how the definition of marriage has become a 3 party contract, A+B+”The state”.

        News flash; the “state” has been involved in marriage since before we were an independent nation. Colonial magistrates were the first to issue licenses, in keeping with British law, requiring a bond to be paid and in order to protect the rights of inheritance by children of the union. Banns (you do know what those were, don’t you?) were to be published and read at least three times for three consecutive weeks to make sure that there was no objection to the marriage.

        I have also told you that the marriage “benefit” tax wise is a fallacy. There is no such thing. But you seem to be a slow learner so let me repeat: there is no such thing as a marriage “benefit” tax wise.

        “I have to defer to the law of the land as it is interpreted by the elected and or appointed representatives. Elections have consequences.”

        Sometimes laws are just wrong. And should be thwarted any way possible. Also, marriage laws are created by state legislatures. Tell me where Texas enacted a law permitting two people of the same sex to marry?

        Frankly, I take the stand of Andrew Jackson on this issue; if the SCOTUS thinks it can make a law, let it enforce it. And that would require police power on the part of the SCOTUS, which it does not have.

        Yes, elections have consequences. Just ask the European Jews.


    No the Judges did not “get it right” and the fact that you think that they did means that you have no understanding of the method of Governance that was set up at the founding of this country, let alone the erosion that has occurred in the recent past.

    The principles of States rights to govern as their own soverign has been eroded completely. The Federal Government, prior to Obergefell had limited itself to Health, Safety and Welfare, but had never intruded upon the “Police power” (aka Morals), stating that States and States ALONE had the power to determine what was in the moral welfare of their citizens. Marriage as a rite and as a recognition was afforded a place among the “morals” section, save for the interracial marriage intrusion, which was based upon a SEPARATE constitutional principle (the 14TH Amendment equal protection clause). Equal protection never applied to “gay marriage” because the individuals were always free to marry someone of the opposite gender, thus there was no legal inequality to be remedied (“Love” is not a legal inequality, but a social one).

    Obergfell shattered that principle as surely as a baseball sized rock shatters pane glass. There is now NO limiting principle to the government’s reach into the police powers of the states.

    What about all the gay couples who were forced to take out two separate insurance policies, since their work policy only covered lawful spouses/immediate family? Since we’ve now decided that that was “unconstitutional,” are they free to sue their employer for not having offered coverage to the person who was not then, but is now, their lawful spouse?

    What about all the long-term gay couples where one of them passed away, and the survivor didn’t get to claim his or her partner’s retirement or social security? Can they go for a retroactive pay-out now?

    I don’t have a problem with gay couples being afforded the same legal, medical & financial rights as straight couples, but it really seems like kind of a can of worms to try to rule that it’s retroactive.

      Milhouse in reply to Amy in FL. | October 14, 2015 at 9:52 am

      Sue the employer? Certainly not, since the employer acted in good faith, and had no way of knowing that the marriage would later be ruled to have been valid.

      Retroactive payouts? From private entities, no, since the then-prevailing conditions were the understood terms of the contract. From government entities, yes, because under the new edict the laws that prevented the payout were always invalid.

      All of this, of course, only applies to those who are bound to act as if Obergefell was correctly decided, i.e. members of the judicial branch. The rest of us are free to say that it was wrongly decided and ought to be overturned. Not because marriage isn’t a fundamental right, but because its mixed-sex nature is part of its definition, and the fundamental right is to enter into a mixed-sex marriage if one chooses to do so.

Here is another was of looking at it from a purely equitable POV: Who should get the estate? The partner who stayed with the decedent or the relatives of the decedent who probably were against the common law relationship from the get-go?

    Ragspierre in reply to Redneck Law. | October 12, 2015 at 2:52 pm

    Overlooking your many assumptions (and there were a bunch!), I can’t think of a time when equity trumped probate law in Texas (and I’m pretty good with equity).

      Rags, I’m not defending the decision. Just making a “Court of Equity” statement to interject a different POV.

      Ragspierre in reply to Ragspierre. | October 12, 2015 at 3:57 pm

      Oh, I understood! And I LOVE equity, and think it should be MUCH better taught in law schools today.

      But probate just tends to be VERY rule-driven (though you might not know it by this judge’s ruling). I’m not suggesting that equity is a stranger in a probate court, just that I’ve never known of it trumping the rules.

I warned my colleagues that this was coming.

I warned them, and I said that when this hits, it is going to be a NIGHTMARE to deal with, because instead of the occasional claim of common law marriage between a man and woman (one of whom wants to take the other to the cleaners), NOW we’re going to have claims of common-law marriage all over the place regarding past health care denials, will contests, estate planning disasters, tax deferrals, claims on business interests and all sorts of other shenanigans.

It’s going to be a disaster, and anytime an individual walks in who is in a homosexual relationship comes into my office, I now have to double the requested pre-paid legal fee due to the fact that there is GOING to be a fight about these issues from somebody (maybe the “spouse” maybe the State, maybe the business, etc…).

    My great uncle and his long-time partner (they’d been together my entire life, and before that as well) ended up wanting to go into a retirement home with on-site assisted living, and the facility they really wanted to live in said they’d have to take two single rooms — they couldn’t have one shared room with just the one bed, because they weren’t married. That was just the rule – only married couples could be treated as married couples. I’m thinking that this is the kind of situation lawyers will now be brought into as well, since the expense of two “singles” having to take two separate rooms is considerably more than one couple sharing the same room.

    The federal government has no business interfering with marriage, gay or otherwise. Yes, there is a compelling public interest in providing encouragement to those who wish to join together to share the risks and benefits of life together.

    That said, the encouragement should be limited strictly to a contractual arrangement between the parties involved. It should not award monetary benefits such as tax deductions and social security based on such contracts. That is, the contract should bind only the parties involved, but not the government itself beyond an obligation to enforce the contract.

    We have lost the traditional meaning of the word marriage but we have not lost either the tradition or the benefits derived from traditional marriage.

    All of the problems you’ve mentioned have come about because the government took an active hand where it should have remained silent. Now we have a silly justice braying some nonsense about ‘love’ and the government’s responsibility in that regard. Soon, we’ll see thousands of people seeking to marry so that one person will work while the other 999 will apply for social security benefits.

    The government made its mistake centuries ago. If it fails to bow out of the picture now, it’s really going to get ugly in the future.

      retire05 in reply to MSO. | October 12, 2015 at 9:30 pm

      ” It should not award monetary benefits such as tax deductions”

      Educate yourself and stop offering same-sex marriage proponent talking points.

      There is NO monetary benefit tax deduction. The individual tax deduction for the year 2014 is $6,200. For marrieds filing jointly (two people) it is $12,400 (2 x’s $6,200.00). No benefit as the individual tax deduction is the same per person whether you are married or not.

      In many cases, gays who do marry, and file joint tax returns, find that due to the combination of their incomes they are in a higher tax bracket and there is actually a marriage “penalty.”

        Milhouse in reply to retire05. | October 14, 2015 at 9:56 am

        There is a marriage benefit, if and only if one partner’s income is much higher than the other’s, and especially if one partner has no income. In marriages where both partners have income that is roughly comparable, there is a marriage penalty.

    forksdad in reply to Chuck Skinner. | October 13, 2015 at 1:05 pm

    My guess is that special privilege will be afforded. Some animals are more equal than others. Just as affirmative action was supposed to ‘level the playing field and be abandon by now because everything would be equal’ we have discovered a monster.

    It will be like AA and Title IX, it will be the monster that ate Poughkeepsie and grow and metastasize for decades. Special rights will never cease to be discovered and everything will be restructured to force something that cannot be forced. People will be hurt, lives impacted for the benefit of people right around 2% of the population. We had protests when the 1% were supposedly oppressing everyone. What percentage of 330 mil is 5?

    When will have protests that close the streets to protest the tyranny of 2% plus five?

ugottabekiddinme | October 12, 2015 at 8:16 pm

Speaking as a lawyer, how the he** can there be a common law marriage out of a relationship or at least conduct that was probably felonious under the common law? I need an updated Blackstone.

On the other hand, I do seem vaguely to recall, from law school research days, that if you need a case that stands for some obscure proposition you cannot find in a controlling jurisdiction, you can nearly always come up with what you seek in some or other Texas Ct of Appeals report.

Two people together ordering their lives and their common personal affairs as they see fit, without interference from the state – sounds like “freedom” to me. Personal liberty is being able to order your life as you see fit, without fear that someone who disapproves of your choices will be able to enlist the government to stop you.

Some of you take offense at same-sex marriage the way Muslims take offense at pork being on a menu. Your offense is just as noisome to me as that of those of the Religion of Permanent Offense®. You seem to not understand that “freedom” means people get to do things that offend and disgust you, and “limited government” means it has no authority to enforce your objections. Or do you think freedom exists when everybody is allowed to only do that which meets universal approval? Although voluntary conformity to mutually-approved behaviors can be admirable in a society, there is no freedom if that society doesn’t permit deviation from conformity.

    Ragspierre in reply to DaveGinOly. | October 13, 2015 at 8:47 am

    “Two people together ordering their lives and their common personal affairs as they see fit, without interference from the state – sounds like “freedom” to me. Personal liberty is being able to order your life as you see fit, without fear that someone who disapproves of your choices will be able to enlist the government to stop you.”

    Which is a very pretty lil’ straw-man argument!

    Two people HAVE done that, and I’ve helped a few such couples. Nobody tried to stop them, and nobody gave a flying fluck. Nobody called it a “marriage”, either, because it cannot be one.

    You missed the part in the root post were the two young ladies COULD have, and SHOULD have “ordered their lives as they saw fit”, but DIDN’T.

    Now the surviver is “trying to enlist the government” in probate court.

    But it is NOT “two people together ordering their lives” in the case of the assault on marriage. It is an assault on a fundamental cultural norm PRECISELY to enlist government in destroying the meaning of that norm that has existed always and everywhere…the union of the two sexes. It is PRECISELY the assault on that norm that comprises an effort to limit freedom via government edict.

    Nobody is “more free” because of that awful diktat by that reprehensible tyrant in black robes. Quite the opposite is true.

2nd Ammendment Mother | October 13, 2015 at 1:23 pm

One pitfall I see coming is when a person leaves an older will in effect – intentionally or not – when entering into a new relationship. How many cases do we see where a spouse has set up their estate to leave their assets earned in a previous marriage to the children of that marriage later be challenged by a new spouse?

More to the point would be situations where one of the partners may have been less “committed” than the second would have liked and intentionally not made provisions for that person.

And I agree with the opening of a can of worms regarding cases that pre-date the SCOTUS decision – the legal business is definitely getting a financial windfall from this mess.