Article I, Section 32 of the Texas Constitution ("Marriage")
Added November 8, 2005:
(a) Marriage in this State shall consist only of the union of one man and one woman.
(b) This State or a political subdivision of this State may not create or recognize any legal status identical or similar to marriage.
Editor Comments
The Texas Attorney General, in Tex. Att'y Gen. Op. GA-1003 (2013), opined that this section "prohibits political subdivisions from creating a legal status of domestic partnership."
The United States Supreme Court, in Obergefell v. Hodges, 576 U.S. 644 (2015), subsequently held that the federal constitution guarantees the right to marry to same-sex couples.
Note that whether the landmark Obergefell decision completely invalidated this section and a similar provision in the Texas Family Code has been the subject of additional litigation.
Recent Decisions
- Pidgeon v. Turner, 625 S.W.3d 583, 604 (Tex.App.–Houston [14th Dist.] 2021, denied) ("While the prior federal cases relied upon by the trial court focus on . . . . These same reasons would also prohibit enforcing Texas DOMAs and the discriminatory law appellants seek to advance. In sum, there can be no uncertainty as to the propriety and legality of affording spousal benefits equally to all married City employees under Windsor, Obergefell, Pavan, and Bostock. The U.S. Supreme Court rulings in these cases support the trial court's ruling here that the Mayor and the City have not committed any ultra vires or impermissible act.")
- Pidgeon v. Turner, 538 S.W.3d 73, 89 (Tex. 2017) (citation & footnote omitted) ("Already, the Supreme Court has taken one opportunity to address Obergefell's impact on an issue it did not address in Obergefell, and there will undoubtedly be others. Pidgeon and the Mayor, like many other litigants throughout the country, must now assist the courts in fully exploring Obergefell's reach and ramifications, and are entitled to the opportunity . . . . We reverse the court of appeals' judgment, vacate the trial court's temporary injunction order, and remand this case to the trial court for further proceedings consistent with our judgment and this opinion.")
Historic Decisions
- Frasher v. State, 3 Tex.Ct.App. 263, 276-77 (1877) ("It is, then, conceded that the states can prohibit the intermarriage of the races, and it therefore . . . . Can it be truly said that the law is illegal because the race sought to be protected by 'the amendments' and 'the Civil Rights Bill' is not punished? Civilized society has the power of self-preservation, and, marriage being the foundation of such society, most of the states in which the negro forms an element of any note have enacted laws inhibiting intermarriage between the white and black races. And the courts, as a general rule, have sustained the constitutionality of such statutes.")
Library Resources
- Vernon's Annotated Constitution of the State of Texas (this multi-volume and up-to-date resource is available at all law libraries and many municipal libraries)
- The Texas State Constitution: A Reference Guide (this one-volume resource is available at most law libraries and some municipal libraries)
- The Constitution of the State of Texas: An Annotated and Comparative Analysis (this two-volume resource is available at most law libraries and some municipal libraries)
Online Resources
- Constitution of the State of Texas (1876) (this resource is published and maintained by the University of Texas School of Law)
- Amendments to the Texas Constitution Since 1876 (this resource is published and regularly updated by the Legislative Council)
- Reports Analyzing Proposed Amendments (this resource is published and regularly updated by the Legislative Reference Library)