The long-awaited LGBT victory is poised to become a reality in June
by Brandon Wolf
One hundred and fifty years ago, Cuban hero and writer Jose Marti observed: “Like stones rolling down hills, fair ideas reach their objectives despite all obstacles and barriers. It may be possible to speed or hinder them, but impossible to stop them.”
Those words ring true today as LGBT Texans prepare to welcome marriage equality to the Lone Star State. Most observers predict that the Supreme Court of the United States (SCOTUS) will finally make same-sex marriage legal in all 50 states by the end of June 2015.
Late last month, on April 28, 2015, SCOTUS justices heard an unprecedented two-and-a-half hours of oral arguments in Obergefell v. Hodges, a consolidated challenge of six appeals involving 17 marriage-equality cases from the U.S. Court of Appeals for the Sixth Circuit. Each of the plaintiffs won their case at the state level before being put on hold as their respective states—Michigan, Ohio, Tennessee, and Kentucky—filed appeals with the Sixth Circuit Court. Because the Sixth Circuit’s ruling was at odds with other circuit-court rulings that upheld same-sex marriage rights, the Supreme Court intervened last January and agreed to hear those cases. The plaintiffs’ attorneys were tasked with answering two questions: Does the Fourteenth Amendment require states to license same-sex marriages, and does the Fourteenth Amendment require states to recognize same-sex marriages legally performed in other states?
Based on their judicial philosophies and past rulings, the SCOTUS justices are expected to strike down bans on same-sex marriage by a 5–4 vote. Their ruling in this landmark case will be announced on or near June 24, 2015.
What Should LGBT Houstonians Start to Consider?
Never before has there been such cause for optimism among LGBT Houstonians who are thinking of marriage. Attorney Debra E. Hunt recently talked at length with OutSmart about the many implications of full marriage equality in Texas. Hunt has practiced law in our community for more than two decades, guiding LGBT clients through the maze of the laws and ensuring that their estate planning is sound. Her firm, Moore & Hunt, has been on the forefront of LGBT family-law issues, having assisted families in estate planning, probate, adoption, surrogacy, and dissolution matters since 1987.
Although Hunt cautions people to be patient while the legal system sorts through the fine points over the next few years, she did identify a few of the most obvious and immediate issues for LGBT couples:
- Community property: Texas is a “community property” state, so everything that is acquired by spouses after a marriage begins is presumed to be the property of both spouses unless something is acquired by inheritance or gift. Newly married same-sex partners will need to be aware that even though one spouse might buy something in their individual name, it will be jointly owned by both of them. Individual ownership can be maintained, however, through a legal agreement that specifies clearly who owns what.
This issue becomes more complicated for LGBT couples who have been in committed relationships for years or decades. While community property rules begin at the point of marriage, long-term same-sex couples could not marry at the beginning of their relationships—unlike their heterosexual counterparts who likely got married soon after they fell in love.
For Texas same-sex couples who were married in another state, although “community property” arguably began when they married, some courts may rule that it begins from the point of their home state’s recognition of marriage equality. To eliminate confusion, long-term couples can draw up a legal agreement that clarifies who owns the possessions that have already been purchased.
It is possible that long-term couples could claim they had an informal “common law” marriage that entitled them to claim community property and earnings obtained during the relationship that would pre-date the recognition of marriage equality in Texas. A Texas judge ruled in March 2015 that two lesbians had such rights when one partner died without a will and her family sued to be declared the rightful
heirs. That case is on appeal, and will no doubt be stayed until the SCOTUS ruling.
- Federal taxes: Tax rates can sometimes increase when an individual’s status changes from single to married. The issue is not whether they file jointly or separately, but rather what constitutes “married” for tax purposes. Hunt says that couples should look at this seriously, especially if both partners are high-wage earners, as they will likely pay additional income tax as a married couple.
- Homestead exemptions: Texas allows a married couple to own only one homestead, as a tax exemption and as protection from creditors. Partners who currently own separate “homestead” houses will lose one of those exemptions when they marry.
- Parent/child relationships: Marriage does not automatically establish a parent/child relationship between a child and a non-biological parent. Only a biological birth or a court order—such as an adoption, surrogacy, or parentage determination—conclusively establishes parentage. It remains to be seen whether courts will convert the current “presumption of paternity” arising from marriage to a broader “presumption of parentage,” as other states have done.
While this may not seem to be a relevant issue to couples who are sure they are in love, when a divorce or death occurs, issues such as visitation rights, joint custody, and guardianship can become contentious. When a parent’s death occurs, state law determines exactly who can apply to become a child’s guardian.
Spousal support obligation: Spouses are required to financially support each other during their marriage, and in some circumstances, one spouse may be ordered to pay spousal support if the marriage ends.
- Medical decisions: A spouse trumps any family members when medical decisions need to be made for that spouse’s partner. The spouse holds the legal authority to authorize disposition of remains through either cremation or burial. It is the spouse who is listed on a death certificate as the survivor.
- Inheritance rights: Upon the death of a spouse, the surviving spouse has inheritance rights. This inheritance is not taxable to a spouse.
- Social Security benefits: Generally, a surviving spouse gains the right to the deceased spouse’s Social Security benefits. If a deceased spouse’s benefits are greater than the survivor’s, Social Security pays the greater of the two. A surviving spouse who was married for less than nine months may not claim spousal benefits.
- Estate planning: Many Texas couples have entered into legal agreements and contracts to protect each partner in the event of the death of a partner. Such agreements should be reviewed with an attorney before marriage to ensure that the contract will not complicate inheritance proceedings.
Who Will Benefit from Marriage Equality?
Whether it’s a new love or one that is decades old, full marriage equality means that LGBT couples will be on the same legal footing as heterosexual couples.
- Gay and lesbian couples: Gay men and lesbians who want to commit to a partner will now be able to marry.
- Bisexual individuals: Marriage equality will allow bisexual men and women to marry a partner of either gender, with full rights and protections.
- Transgender partners: Texas already allows the marriage of two people where one is a transgender partner—as long as the required documents show that the partners are of opposite genders. Court orders can instruct official documents to be corrected to reflect a partner’s true gender identity. Until now, challenges to these marriages (based on chromosome testing) have been made by insurance companies and other parties, with some marriages being declared invalid. The SCOTUS ruling will remove these concerns.
- Bi-national couples: International individuals living legally in Houston will now be able to marry same-sex partners and become eligible for permanent residency.
- LGBT youth under 18: Texas LGBT youth will be coming of age in an era where they will have always had the option of marrying the person they love.
- Parents of LGBT children: Parents of LGBT children want them to have the same benefits and protections as heterosexuals. Marriage equality will bring the peace of mind they have been seeking.
The Indirect Benefits of Marriage Equality
- The economy: The Texas wedding industry will see increased business from LGBT Texans who have been waiting to marry in their home state. Attorneys and financial advisors will be needed to help prospective couples sort out the facts in this new marital environment. Increased business activity will create new jobs and help to grow the Texas economy.
- The City of Houston: A city’s diversity is a factor that many young people today consider when relocating. Until now, the fact that we have a lesbian mayor has been offset by the lack of Texas marriage equality. Houston stands to further improve its growing reputation as a welcoming and livable city.
When Will Gay Marriage Be Possible in Houston?
Assuming a favorable Supreme Court ruling in late June, Houston LGBTs will be able to obtain a marriage license immediately. In some states, brief stays have been granted to allow for the necessary procedural changes at county courthouses.
Harris County Clerk Stan Stanart is the man who will oversee the transition to accommodate local LGBT couples seeking a marriage license. Calls to his office regarding the anticipated Supreme Court ruling were not returned. (After LGBT-friendly Beverly Kaufman retired from the county clerk’s position in 2009, and Stanart won the 2010 election, Stanart eventually redesigned Harris County’s marriage licenses and certificates with woodcut illustrations of Victorian-era white heterosexual couples.)
One wild card exists that could result in marriage equality coming to Texas before the end of June. After two Texas couples challenged Texas’ ban on same-sex marriage, a federal district judge ruled in their favor in 2014. A stay was placed on the ruling after Texas appealed. The Fifth Circuit Court of Appeals heard this case in January, and a favorable ruling would likely result in Texas marriage equality prior to the Supreme Court ruling.
How to Get Married in Houston
Partners wishing to marry in Houston must present themselves at a County Clerk’s office. To find the closest branch office, call 713.755.6411. Both partners must be 18 years of age or older. With parental consent, the age drops to 16.
Each person is required to present a valid identification such as a driver’s license, Texas DPS ID card, current passport, resident alien card, or other government-issued identification. The license fee is $72.
You must wait 72 hours before you can marry, unless the waiting period is waived by the county clerk for good reason. You must marry within 90 days, or the license will become void.
You will need to locate an officiant authorized by the State of Texas to conduct marriage ceremonies. The list includes ordained Protestant ministers, Catholic priests, Jewish rabbis, other officials authorized by religious organizations, and any Texas judge or justice of the peace. Officiant fees vary, often depending on how much of the officiant’s time is needed. For a wedding at a place other than the officiant’s office, the average price is $225.
However, a friend can officiate for as little as $10 by applying online to the Universal Life Church Monastery for an ordination credential. These credentials are legally valid in Texas. The friend will need to become familiar with the protocols of the ceremony. After the wedding, a marriage certificate is available from the Clerk’s office.
But just because you can get married, should you tie the knot? Is the LGBT community too reliant on the easy fix when relationships don’t work out—just packing up the car and leaving? The possibilities and pitfalls of marriage should be taken seriously, Hunt cautions. “It is easy to get married. It is not easy to get divorced.”
The Future of Gay Marriage in Texas
LGBT couples should realize that legal recognition does not guarantee social acceptance. Although attitudes continue to change, there are still those who do not accept LGBT people as their moral equals. Although Houston’s new HERO nondiscrimination ordinance just won a second legal challenge on April 17, 2015, it is expected that opponents will continue their fight by moving their case to a Texas Court of Appeals. If that appeal wins a favorable outcome, the August 24 deadline will be met and HERO will most likely be put on the November 2015 ballot as a referendum. Assuming a favorable appeals ruling, the appeals court will probably put a restraining order on HERO until the November election.
Because there are so many possible scenarios, it is best to say that citizens wishing to pursue a discrimination complaint should contact the City Legal Department at 832.393.6491. If HERO is in effect, you are protected and you will be referred to the City Attorney. If HERO is not in effect, you are not protected and you will be referred to the Office of the Inspector General, who wants to document every case of known discrimination that occurs.
Until Houston’s nondiscrimination ordinance is fully implemented, if a local baker refuses to bake your wedding cake, you will need to find another baker. Tipping off the media can make local citizens aware of blatant discrimination, but the media coverage could also end up makings heroes out of those who discriminate.
It should be noted that a favorable SCOTUS decision on gay marriage will have no effect whatsoever on protecting citizens from discrimination. That will take a city, state, or federal nondiscrimination law. LGBT Houstonians are not currently protected at any of those three levels.
But as for marriage equality, LGBT Texans can only wait and hope that the predictions of legal scholars are correct. As the old saying goes, “The opera isn’t over until the prima donna has sung the last aria.”
When the marriage-equality diva sings her aria in June, we expect she will hit a note that none of us has ever heard before—one that will send our spirits soaring as the era of true national marriage equality is ushered in.
Marriage and the Gay Community
Marriage is important to LGBT citizens for the same reasons it is important to heterosexuals—because we fall in love and want to commit to a relationship with one person. We want that relationship to be respected and protected. Marriage fulfills those needs.
The gay community began thinking about marriage as early as the 1950s, but it only became a civil-rights priority during the last decade. Before that, the more immediate issues were police harassment, employment protection, and child custody and adoption rights.
Around the time that commitment ceremonies became popular as a means of expressing love and faithfulness, the AIDS epidemic taught the LGBT community how much it needed true marital protections. Disapproving families shut partners out of intensive-care hospital rooms, plundered homes and belongings, and took custody of bodies after death.
Houston’s LGBT history reveals that past generations were concerned about marriage—especially professionals concerned about workplace discrimination. Gay men and lesbians formed faux boyfriend/girlfriend relationships in order to appear heterosexual. In some cases, these couples actually entered into sham marriages.
Historian Jim Sears has written about 1960s community leader and bar owner Rita Wanstrom: “Rita’s first of 300 wedding ceremonies was performed in 1968 for two men, one of whom was about to be shipped overseas. As the only person performing same-sex weddings in Texas, Rita pronounced them ‘loving partners for life,’ noting it was a ‘commitment before witnesses.’”
In 2004, Massachusetts became the first state to offer marriage equality. That same year, on Valentine’s Day, Houstonians began staging annual “Right to Marry” protests at the county clerk’s office and in front of City Hall, followed by a mass commitment ceremony at Resurrection MCC. (Since 2004, the number of states with marriage equality has grown to 37, and the Houston protest held this year is expected to be the final one.)
Brandon Wolf wrote about veteran activist Urvashi Vaid in the January issue of OutSmart magazine.