AUSTIN (KXAN) — A Travis County judge ruled Tuesday that Texas’ ban on same-sex marriage is unconstitutional. However, Judge Guy Herman’s order did not instruct the county clerk’s office to begin issuing marriage licenses to same-sex couples.
“It is unusual to have a ruling like this come out of a probate court,” said Travis County Clerk Dana DeBeauvoir. “How much action can be taken on a probate case, at the very beginning of a case, is unknown to any of us right now — especially for this particular issue.”
The decision came during a court in battle in which an Austin woman was fighting to have the state recognize her marriage following her spouse’s death. Sonemaly Phrasavath and Stella Powell were joined in a domestic partnership but were faced with bad news about a year ago. Powell was diagnosed with cancer and died in June 2014. Phrasavath says her wife put together a will, but it wasn’t signed and notarized before her death. Phrasavath then took her battle to court, asking for a Travis County Probate Court to disregard the state’s ban for this case, arguing the two women were common-law spouses, entitling Phrasavath to Powell’s estate.
In denying the special exemption, Herman ruled:
“The Court finds that Texas Family Code 2.401, Texas Family Code 6.204(b), and Article I, 32 of the Texas Constitution are unconstitutional insofar as they restrict marriage in the State of Texas to a union of a man and woman and prohibit the creation or recognition of marriage to same-sex couples, because such restrictions and prohibitions violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”
DeBeauvoir called Tuesday’s court order “a great step toward marriage equality.” She has been with the clerk’s office for 29 years and says she has been waiting to issue licenses to same-sex couples since day one.
“I think so many of us see this as civil rights issue and that this whole community, the whole nation has been through a conversation about this,” she said. “I think so many of us are ready to see this as a civil rights issue.”
Even though the order does not giver her the authority to hand out marriage licenses to same-sex couple, she remains optimistic.
“It’s just another example of another domino falling, and that day will come.”
The Travis County Attorney and Texas Attorney General’s Office are both examining the order as well as the status of the current federal litigation related to marriage equality in the 5th Circuit Court of Appeals.
Last year, a federal judge declared Texas’ same-sex marriage ban unconstitutional but stayed his own ruling pending appeal. The case is now being considered by a panel of the New Orleans-based U.S. 5th Circuit Court of Appeals.