Gay Marriage Laws In Texas

Since the 2015 Supreme Court ruling of Obergell v. Hodges, same sex marriage has been legal in the state of Texas. With that in mind, same sex couples still experience discrimination and other concerns (depending on the county). Additionally, the history of the situation in Texas is unique to that state and we'll explore that reality and in a longer than usual history subsection on this page.

Table of Contents

On June 26, 2015 the Supreme Court ruled that “the Fourteenth Amendment requires a State to license a marriage between two people of the same sex.” The court was citing section 1 of that amendment which states unequivocally “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

While that technically made same-sex marriage legal across the country, it turned out it wasn’t that simple. Five Texas counties would not issue marriage licenses to those areas. Those counties were Throckmorton, Hood, Irion, Loving, Mills, and Swisher. The reality is that same-sex couples and LGBT groups alike, have endured a long battle towards acceptance in Texas, the countries most conservative state.

Just to set the table, sodomy was in fact illegal in the state of Texas until Lawrence v. Texas was overturned by the Supreme Court in 2003.

Texas Bans on Same-Sex Marriage

There’s quite a bit here so we’re just going to give some of the more influential bills relating to same-sex marriage (both recent and historical) and give their story through the Texas legislature.

The Bill That Officially Banned Same-Sex Marriage: 75(R) SB 334

In 1997, the State senate would pr 75(R) SB 334 (remember the 75 stands for the 75th session, which was 1997) and the R stands for regular session).

Bill filed by Harris on 1/28/1997 and was immediately reported to the Senate committee which, in this case, was the Committee on Jurisprudence. The vote in that committee was 6 Ayes, 0 Nays, 0 Present Not Voting, 1 Absent (remember Ayes mean Yes). The bill then passed the Senate and the process once again restarted in the house. The relevant committee was the Juvenile Justice & Family Issues committee. The vote in that committee was 8 Ayes, 0 Nays, 0 Present Not Voting, 1 Absent. Notice there was not a single opposing vote in either of the two relevant subcommittees. Frequent leaders of TexasLawChanges will note just how rare that actually is.

Definition of Marriage Act

On November 8, 2005, The Texas Constitution passed Texas Proposition 2 which explicitly banned same-sex marriage in the state by preventing the definition of marriage to change at any point in time. The official language was “Marriage in this state shall consist only of the union of one man and one woman.”

ResponseVotesPercentage
Yes1,723,78276.25
No536,91323.75
Total Votes2,260,695100%
Registered voters12,577,54517.97%
The voting results for Texas Proposition 2

While more progressive readers might wish to take solace in the fact that the turnout rate was only 17.97% of the population, it is important to to note that roughly 63% of the voting population said that they were in favor of the marriage ban. So the vote leaned more anti-LGBT than the general population would have you believe, but nevertheless the population of Texas was broadly in favor of a ban.

Post Obergefell: Further Discrimination

While the Obergefell ruling officially made same-sex marriage legal in all U.S. states, the Texas constitution has yet to codify it into law. Furthermore existing laws that were put into place prior to the law taking effect (such as the Romeo and Juliet Law) have lead to contradictions in the law that, as of 2021, remain unresolved.

Texas Counties Refuse To Issue Marriage Licenses

Texas once again made national headlines for their ambitiously regressive LGBT practices when it was reported that several counties (five confirmed) refused to issue marriage licenses. I suppose this is better than the eight counties that Alabama had that refused to issue marriage licenses, but nevertheless it’s a cause for concern.

We mentioned it before but those five counties were Throckmorton, Hood, Irion, Loving, Mills, and Swisher.

Same-Sex Marriages and The Romeo and Juliet law

The Romeo and Juliet law was a law that was passed in 2011 and had a morally defensible basis behind the law. The law used to be that if someone was younger than 18 years old, they could not consent in sexual activity because they were a minor. Therefore any sex between someone 18 years and older with anyone below the age of 17 was considered statutory rape and lead to some horrifying outcomes.

This would change in 2011 when the Texas legislature would decide that it was unfair to prosecute an 18 year old with a rape charge because they had consensual sex with their 16 year old partner. Now you may be asking, what does this have to do with same-sex marriage?

For two reasons, first this law went into effect prior to the Obergefell v. Hodges ruling (2015). Secondly the law, unbelievably, contained an exception in the case of same-sex relationships. So if you’re an 18 year old male and you have consensual sex with your 16 year old boyfriend, that can still be potentially considered rape. As of the writing of this page, June 16th, 2021, this law has yet to be challenged in court.

Recent Bills

Three more bills, aimed at correcting conflicts that arose after a century of anti-LGBT statewide laws ran up against the Supreme Court ruling encountered resistance out of the house.

87(R) HB 1037: Relating to certain statutory changes to reflect and address same-sex marriages and parenting relationships and to the removal of provisions regarding the criminality or unacceptability of homosexual conduct.

Outcome: Filed. Failed to make it out of committee.

87(R) SB 261: An attempt to use gender neutral language as well as repeal certain criminal penalties for homesexual behavior.

Outcome: Bill failed to make it out of the senate committee.

87(R) SB 129: An attempt to use gender neutral language as well as repeal certain criminal penalties for homesexual behavior.

Outcome: Bill failed to make it out of the state affairs committee in the Senate.

Current Status and Other Notes

While the question of the legality of same-sex marriage seems to be a question of the past, it’s unclear what the future will hold regarding workplace discrimination. We’ll continue to update this page with any relevant legislation that comes this way, as well as general workplace discrimination page we’ll be adding soon.