UPDATE 5:12 p.m. The Texas Supreme Court has blocked both of the orders issued by state judges in Travis County — both declaring the state’s ban on same-sex marriage to be unconstitutional. Details to come. FURTHER UPDATE 6:11 p.m. The state court’s orders do not mention the one marriage performed Thursday, but state Attorney General Ken Paxton said he would seek to have the license voided for that couple.
A same-sex couple in Austin on Thursday became the first to marry in Texas, where the constitutionality of a state ban on such marriages is under review in both state and federal courts. Ordered to do so by a state judge, the Travis County clerk issued a license to Sarah Goodfriend and Suzanne Bryant, and they were promptly wed by a rabbi, on the sidewalk outside the clerk’s office.
It is probably premature, though, to count Texas as the thirty-eighth state where same-sex marriages are legal, because this one marriage was the result of a single case and the issue is still open in several courts in the state.
The judge who cleared the way for the marriage in Austin, state District Judge David Wahlberg, moved quickly after the couple notified him that Goodfriend has been diagnosed with ovarian cancer, making the couple’s future uncertain Judge Wahlberg based his order to issue the license on a finding that the state’s ban is unconstitutional.
His ruling came one day after a probate court judge in Austin, ruling in a dispute over property rights to the estate of a woman involved in a common law same-sex marriage, declared the state ban to be unconstitutional.
The ban also has been ruled unconstitutional by a federal trial judge, but that decision is on hold while that case is on appeal to the U.S. Court of Appeals for the Fifth Circuit, which has held a hearing on the bans in Texas, Louisiana and Mississippi, and could issue a decision at any time.
The constitutionality of the Texas ban is also now being examined in three cases by the Texas Supreme Court. On Tuesday, state officials asked that court to delay the order of the probate judge in the property rights case in Austin, noting that the constitutional issue is being reviewed in both state and federal court and arguing that confusion will reign if state judges are free to nullify the state’s ban.
