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Saturday, June 22, 2024 | Back issues
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Texas Intervenes in|Same-Sex Marriage Case

AUSTIN, Texas (CN) - Texas Attorney General Ken Paxton filed a plea in intervention Wednesday in a probate case in which a woman claims heirship based on a common-law marriage with her late partner.

Travis County Probate Judge Guy Herman had ruled on Tuesday that Texas' ban on same-sex marriage is unconstitutional.

In the underlying case involving the Estate of Stella Marie Powell, Sonemaly Phrasavath claimed she was in a same-sex, common-law marriage with Powell and was an intestate heir.

But Texas does not allow a party to try to prove a common law same-sex marriage since it does not recognize same-sex marriage.

Powell's siblings, James Powell and Alice Huseman, filed a brief in support of their special exceptions and a motion to dismiss Phrasavath's claims that she had an interest in their sister's estate.

Judge Herman denied the special exceptions of Powell and Huseman and ruled that the state's laws banning same-sex marriage were unconstitutional because "such restrictions and prohibitions violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution."

The laws in question are Texas Family Code 2.401, Texas Family Code 6.204(b), and Article I, 32 of the Texas Constitution.

On Wednesday, Attorney General Ken Paxton intervened in Phrasavath's case, sought a stay from the Texas Supreme Court, and asked the court to overturn Judge Herman's order.

"Texas law is clear on the definition of marriage, and I will fight to protect this sacred institution and uphold the will of Texans, who voted overwhelmingly in favor of a constitutional amendment defining the union as between one man and one woman," Paxton said in a statement. "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."

Travis County Clerk Dana DeBeauvoir called Herman's ruling "a great step toward marriage equality." The clerk is not yet issuing marriage licenses to same-sex couples because Herman did not instruct her to do so, and there is related federal litigation pending in the 5th Circuit and in the U.S. Supreme Court.

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