The Impact of Windsor on Texas

Lest there be any question – Texas state law doesn’t recognize same-sex marriages. By statute, a same sex marriage or civil union is contrary to the public policy of the state.   Texans felt so strongly about the issue that in 2005 they amended the state constitution to define marriage as being a union of one man and one woman.

That’s caused some consternation among same-sex couples who were legally married in another state and who now reside in Texas.  One such couple unsuccessfully tried to divorce in Texas.  Their divorce suit was dismissed because the appellate court determined their marriage was invalid in Texas.  That case, and a similar case, are now on appeal before the Texas Supreme Court.

Then came Windsor.  On June 26, 2013, United State Supreme Court  rendered an opinion that a same-sex couple legally married in a state was eligible for all of the rights and duties accorded  a married couple under federal statutes.

While not a direct assault on the Texas laws, the case will cause same-sex married couples in Texas (and the other 35 states which do not recognize the validity of such marriages) to be held to a double standard. They will be accorded rights under Federal law, and denied rights under similar state laws.

By the Supreme Court’s reckoning, there are over 1,000 statutes and numerous federal regulations that address married status as a condition for rights or rules.  Among them are laws pertaining to Social Security, housing, taxes, crimi­nal sanctions, copyright, and veterans’ benefits.

Let’s take one state law – that of inheritance.  In Texas, if someone dies without a will, his estate is distributed by state law to his spouse and children.   Assume that Bill and Fred are married in New York, and move to Texas.  Bill dies without a will.  Fred cannot inherit under state law because his marriage isn’t recognized in Texas.  Yet he is Bill’s  “surviving spouse” for all Federal benefits, including all estate tax exemptions and the step-up basis in property.

Such imbalances aren’t tolerated well in the justice system.    The next few years will be interesting indeed.