Untitled Texas Attorney General Opinion ( 1972 )

c. .
Honorable Ned Granger Opinion No. M-1216
County Attorney
Travis County Courthouse Re: Whether the Travis County
Austin, Texas 78701 Clerk is authorized to
issue a marriage license
to two persons of the
Dear Mr. Granger: same sex?
You have requested an opinion as to whether the Travis
County Clerk is authorized to Issue a marriage license to two
persons of the same sex.
In order to qualify for a marriage license In the State
of Texas, the following Section of Title I of the Family Code
(Acts 61st Leg.,R.S.1970,ch.888,p.7) must be complied with:
'Section 1.01. Marriage License
"Persons desiring to enter Into a ceremonial
marriage shall obtain a marriage license from
the county clerk of any county of this state."
Sections 1.02, 1.03, i.04, 1.06, 1.07, and 1.08 of the
Family Code, supra, deal with the procedure for obtaining a
marriage license but they are not definitive of who may marry
In Texas.
At first blush, it might appear that the County Clerk Is
authorized to issue a marriage license to persons of the same
sex if they meet the above qualifications. Nevertheless, we
must look further.
The Title of the Family Code reads In part:
"An Act adopting Title I of the Family Code,
a substantive revision of the statutes relating
to husband and wife - entering the marriage
relatlonsh%p; . . .'
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Honorable Ned Granger, page 2 (M-1216)
Therefore, since this Act Is a "Code," it Is subject
to the Code Construction Act, Art. 5429b-2, Subchapter C,
Sec. 3.03, Vernon's Ann. Civ. St. (60th Leg. 1967).
"Sec. 3.03. In construing a statute, whether or
not the statute Is considered ambiguous on its
face, a court may consider among other matters the
"(1) object sought to be attained;
circumstances under which the statute
i$)enacted ;
“(3) Jegislative history;
“(4) common law or former statutory provisions,
including laws upon the same or similar subjects;
“(5) consequences of a particular construction;
“(6) admlnlstrative construction of the statute;
and
“(7) title, preamble, and emergenty provision."
In accordance with the Code Construction Act, supra, we
must look to the common law for guidance as provided for In
Article 1, V.C.S.:
"The common law of &gland, so far as It is not
inconsistent with the Constitution and laws of
this State, shall together with such Constitution
and laws, be the rule of decision, and shall
continue in force until altered or repealed by
the Legislature."
Indeed, at common law, marriage could only exist between
a man and a woman. Grigsby v. Relb, 105 Tex. 597, 153 S.W.
1124 (1913).
Alternatively, although Texas courts have not directly
spoken to the definition of husband and wife, other courts
have done so. In Davis v. Bass. 188 N.C. 200. 124 S.E. 556.
568 (1924), the court saic
muhusband Is a man who has a~wife,
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Honorable Ned Granger, page 3 (M-1216)
and a wife is a woman who has a husband." Also, see 30 Tex.Jur.
2d 91, Husband and Wife, and Names v. State, 20 Ind.App. 168,
50 N.E. 401 (1898).
However. Texas courts have defined the word "marriaae."
In Janelli v. janelll 216 S.E.2d 587, (Tex.Civ.App. 1948);
h d j the court in citing Lewis v. Ames, 44
;::: ;;9°$;5~r;::t:d' "A marriage is a mutual agreement of
a man and a woman to live tonether in the relation and under
the duties of husband and wl?e." Also, see Simpson v. Simpson,
380 S.W.2d 855, (Tex.Civ.App. 1964,error ref. n.r.e.).
While the drafters of this Code may not have been explicit,
each section thereof must be read In harmony with the remainder
of the statute.
150 Tex. 18, 237
that:
"The fundamental rule controlling the
construction of the Statute Is to ascertain
the intention of the Legislature expressed
therein. That intention should be ascertained
from the entire act, and not from isolated
portions thereof.'l
Furthermore, in Calvert v. British-American 011 Producing
397 S.W.2d 839, (Tex.Sup. 1965) at page 842, the Court
%ourts will not follow the letter of the
statute when It leads away from the true
Intent and purpose of the Legislature, and
to conclusions inconsistent with the general
purpose of the act."
Following these two rules of statutory construction, the
possible confusion with regard to the provisions of the Family
Code, supra, can be resolved.
In the Instant situation, since the Legislature ha;
permeated thz Family Eode, supra, with the terms "husband ,
'wife", and marriage , and since the Legislature must be
presumed to know the definitions and usage of these words, it
is eminently clear that under Texas law only two persons of the
opposite sex may be granted a license to marry In Texas.
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Honorable Ned Granger, page 4 (~-1216)
We must next look to find
-~ whether the Family Code, supra,
is Invalidated by the United States Constitution because It
violates the due process and equal protection provisions of the
Fourteenth Amendment. In Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535, 541, 62 S. Ct. 1110 1113 8b Fd lb55 lbb
(1942), the Supreme Court of the'unltei Statis in an ipini:n
written by Mr. Justice William 0. Douglas reflected on the
institution of marriage by announcing:
II
. . Marriage and procreation are
findamental to the very existence and
survival of the race. . .'
The issue arises, with the assertion that social mores
have changed so, that the right to marry without regard to sex
is so fundamental a right that any restriction is Invalid,
illogical, and invidiously discriminatory. Last year the
Supreme Court of Minnesota was met squarely with~thls problem
in Baker v. Nelson, 191 N.W.2d 185 (S.Ct.Minn. 1971), pending
No. 71-1027, 40 LW 2221. As in the Instant situation, that
court was presented the question of whether a county clerk in
Minnesota was obligated to issue a marriage license to two men.
The Court noted two recent Supreme Court decisions invalidating
a State law prohibiting the use of contraceptives by married
couples, Griswo1d.v. Connecticutt, 381 U.S. 479, 85 S. Ct. 1678,
14 L.Ed.Zd 510 (1965) and a State's antimlscegenation law, pro-
hibiting Interracial marriage, Loving v. Virginia, 388:u.s. 1,
87 S. Ct. 1817, 18 L.J%.2d 1010 llgb’,) Th s upreme Court of
Minnesota In supra, iefuszd to extend Griswold v.
Connecticutt, ng v. Virginia, supra, stating:
8,
. . . But in common sense and in constitutional
sense, there is a clear distinction between a
marital restriction based merely upon race and
one based upon the fundamental difference In sex."
It should be noted that Baker v. Nelson, supra, is on
aooeal to the Suoreme Court of the United States. Nevertheless.
subjectto a contrary ruling, we are of the opinion that the '
County Clerk is not authorized to issue a marriage license to
two persons of the same sex.
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Honorable Ned Granger, page 5 (M-1216)
SUMMARY
The County Clerks In Texas are not authorized
to issue marriage licenses to two persons of
the same sex.
Very/,jtruly
yours,
Prepared by Lewis A. Jones
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Linda Neeley
Wardlow Lane
Harriet Burke-
R. L. Lattimore
SmIiL il. LvlcL)mTtiL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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