OBERGEFELLWHERE WE ARE AND WHERE WE NEED TO BE

Presented by Team 5:

Janice L. Berg, LaTosha McGill Clayton, Grace Crump, Judge David Farr,

Katy Gardner, Jelena Graves, Janiece Horn, Shonda Jones, William W. Morris,

Scott Poerschke, Sallee Smyth, Lauren Waddell & Tasha Wilson

Honorary Member: Judge Eileen Gaffney

Burta Rhoads Raborn Family Law Inn of Court March 22, 2018

Take-Home Materials

A hyperlinked, electronic version of this handout will be available for download by members of the BRR Family Law

Inn of Court on the Members Page.

Where possible, the cases and articles mentioned in this handout have been hyperlinked either to free case law search

platforms (such as Google Scholar) or to widely-used subscription services (such as Westlaw or TexasBarCLE's

online library).

Please contact janice@janiceberglaw.com with questions.

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TABLE OF CONTENTS Texas Appellate Court Decisions After Obergefell v. Hodges (listed chronologically) .................... 1

Texas Federal Cases Citing Obergefell ......................................................................................... 6

Developments in Other States ..................................................................................................... 7

Selected Articles & CLEs .......................................................................................................... 10

Useful (And Fun!) Resources ................................................................................................... 12

TEXAS APPELLATE COURT DECISIONS AFTER OBERGEFELL V. HODGES

(LISTED CHRONOLOGICALLY)

JUNE 19, 2015 (One week BEFORE Obergefell is decided)

State v. Naylor, 466 S.W.3d 783 (Tex. 2015).

On June 19, 2015, one week before Obergefell was released, the Texas Supreme Court denied standing to the Texas Attorney General in a mandamus action. The AG complained that it had been improperly denied its right to intervene in a same-sex divorce action. The Court determined that the AG had failed to timely intervene in the suit despite having every opportunity to do so. The majority opinion is issued on purely procedural grounds. Justices Brown, Hecht, Green, Johnson, and Boyd joined in the majority. Justice Boyd filed a concurring opinion. Justice Willett filed a dissenting opinion joined by Justices Guzman and Devine. Justice Devine authored his own dissenting opinion. Justice Lehrmann did not participate. Concurring, Justice Boyd announced that although the State does not have standing, “we can all agree” (presumably "all" means the entire Court) that the State is not bound by a divorce decree in a same-sex divorce proceeding and is not bound to recognize its validity. Dissenting, Justice Willett acknowledges that a decision on Obergefell is expected in a “matter of days.” He opines that the AG is sworn to defend TX law and thus Justice Willett would allow the Texas AG to be heard on whether a TX court may dissolve a same-sex marriage which TX law otherwise prohibits. Dissenting, Justice Devine argues that the TX law permitting marriage only between a man and a woman “does not violate the United States Constitution” and that because TX does not recognize same-sex marriage, a TX court has no subject matter jurisdiction to dissolve such a marriage.

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JULY 28, 2015

Parker v. Pidgeon, 477 S.W.3d 353 (Tex. App.—Houston [1st Dist.] 2015, pet. denied 2016 Tex. LEXIS 760 [9/2/16]); pet. denied 2016 Tex. LEXIS 799 [9/2/16]; pet. granted 2017 Tex. LEXIS 54 [1/20/17]; rev'd sub nom. Pidgeon v. Turner, No. 15-0688, 2017 WL 2829350, 2017 Tex. LEXIS 654 (Tex. June 30, 2017), cert. denied, 138 S. Ct. 505 [12/4/17].

The First Court reverses and remands a temporary injunction issued to preclude payment of benefits to same-sex spouses of city employees in the wake of the decision in Obergefell. This case has been meandering its way through the courts since it was originally decided in July 2015. More on Pidgeon below.

JULY 29, 2015

In re Marriage of A.L.F.L. & K.L.L., No. 04-14-00364-CV, 2015 WL 4561231, 2015 Tex. App. LEXIS 7816 (Tex. App.—San Antonio July 29, 2015, no pet.).

In light of Obergefell, the San Antonio Court dismisses as moot an appeal from the denial of a plea to the jurisdiction as filed in a same-sex divorce proceeding.

AUGUST 13, 2015

Powell v. Long, No. 02-14-00397-CV, 2015 WL 4776109, 2015 Tex. App. LEXIS 8557 (Tex. App.—Fort Worth, August 13, 2015, no pet.).

In light of Obergefell, and based on the appellant’s unopposed motion, the Fort Worth Court reversed the trial court's decision dismissing a same-sex divorce on jurisdictional bases and remanded to the trial court to consider all issues as there was no longer an impediment to the suit.

JANUARY 27, 2016

In re Sandoval, No. 14-15-00244-CV, 2016 WL 353010, 2016 Tex. App. LEXIS 754 (Tex. App.—San Antonio January 26, 2016, orig. proceeding).

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In her dissent from the majority opinion, which denied standing to seek parentage to a transgendered individual who had a significant history with the subject children, Justice Martinez of the San Antonio Court cited Obergefell at length:

Questions regarding the retroactive effect of Obergefell remain to be decided. For example, whether an informal same-sex marriage can exist retroactive to a time when an informal same-sex marriage was not allowed. Clearly, however, the United States Supreme Court, both in Windsor and Obergefell, struck down laws which discriminated against same-sex couples, in part, because of the harm to their children, i.e., that by denying the recognition of marriage for their parents, these laws were telling the children that their parents were not really married and, further, that one of them is not really their parent. The Supreme Court saw no reasonable explanation for that. This should suggest to us that the Court’s analysis would extend to cases not simply involving marriage, but also to eligibility for adoption and custody. For our en banc court to read the statute to not encompass marriage and standing to bring suit to adjudicate parentage is thus problematic.

APRIL 15, 2016

In re State, 489 S.W.3d 454 (Tex. 2016).

The Texas Supreme Court dismisses as moot a pending petition for writ of mandamus filed by the TX AG. In February 2015 (pre-Obergefell), an attorney filed suit to declare the TX ban on same-sex marriage void as unconstitutional. The attorney filed the suit in criminal district court and both the attorney and the trial court failed to give the required 45 days’ notice to the TX AG regarding the statutory constitutional challenge as required by TX Gov’t Code § 401.010. In a span of three hours, the trial court declared the statute unconstitutional, the county clerk issued a marriage license to the attorney’s same-sex clients, the couple was married on the steps of the courthouse, and the attorney thereafter filed a non-suit of the case. The AG sought mandamus relief the following day. While the case was moving through the appellate system, Obergefell was decided, rendering the AG’s mandamus petition moot. Even so, Justices Willett and Brown, joined by Justice Devine both wrote separate concurring opinions, agreeing that the result was required but condemning the premeditated actions of counsel and court in sidestepping procedural requirements to avoid scrutiny of the constitutional claims made.

AUGUST 2, 2016

In re Rocher, No. 14-15-00462-CV, 2016 WL 4131626, 2016 Tex. App. LEXIS 8266 (Tex. App.—Houston [14th Dist.] August 2, 2016, no pet.).

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Relying on Obergefell and asserting due process claims, the appellant argued that Family Code § 2.005, which allows the use of a gender change order to validate identity and age of person seeking a marriage license, likewise authorized a TX trial court to issue a gender change order. The majority does not write substantively on the issue, determining that the appellant failed to preserve the issue by not raising it first in the trial court.

APRIL 27, 2017

In the Interest of A.E., No. 09-16-00019-CV, 2017 WL 1535101, 2017 Tex. App. LEXIS 3817 (Tex. App.—Beaumont April 27, 2017, pet. filed*).

The Beaumont Court concludes that Obergefell does not confer standing on a same-sex spouse to assert a parentage claim to a child born during the marriage. The opinion further holds that Obergefell does not require Texas courts to re-write Texas legislation as to who has standing to bring a suit affecting the parent-child relationship. Finally, the opinion holds that Obergefell does not require Texas courts to treat all Texas statutes regarding the marriage and/or parent-child relationship as “gender neutral.”

* Stay tuned. The Texas Supreme Court has requested full briefing on the merits by the end of this summer. You can find case updates here: http://search.txcourts.gov/Case.aspx?cn=17-0458&coa=cossup

JUNE 6, 2017

Hardin v. Obstetrical & Gynecological Assoc. P.A., 527 S.W.3d 424 (Tex. App.—Houston [1st Dist.] 2017, pet. filed).

In Footnote 21, the First Court cites to Justice Thomas’ dissent in Obergefell, in which Thomas cites the Declaration of Independence for the proposition that all humans are created in the image of God and therefore have inherent worth.

JUNE 30, 2017

Pidgeon v. Turner, No. 15-0688, __ S.W.3d __, 2017 WL 2829350, 2017 Tex. LEXIS 654 (Tex. June 30, 2017), cert. denied, 138 S. Ct. 505, 199 L. Ed. 2d 385 (Dec. 4, 2017).

Texas Supreme Court remands the matter back to the trial court for a full hearing on Pidgeon’s request for an injunction prohibiting use of tax payer dollars to pay employee benefits to same-sex spouses of city employees. The Court acknowledges that Obergefell leaves many issues to be decided in terms of the how far the “benefits of a same-sex marriage” will be extended by

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law and that the trial court has not had an opportunity to fully consider those, refusing to address the substantive issues in an interlocutory appeal. The Court holds that the trial court, on remand, is not bound by the decision in De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014) aff’d sub nom., De Leon v. Abbot, 791 F.3d 691 (5th Cir. 2015) (holding that TX DOMA statute banning same-sex marriage is unconstitutional and unenforceable) and finds that the Court of Appeals' opinion remanding with instructions to proceed “consistent with” the decision in De Leon was erroneous.

(June 30, 2017) - Petitioners challenged the City of Houston’s provision of benefits to the same-sex spouses of city employees. The decision in Pidgeon v. Turner revolves around spousal benefits for government workers. Texas law prohibits same-sex couples from receiving such benefits. After the Supreme Court struck down the federal same-sex marriage ban in 2013, the Houston city attorney advised then-Mayor Annise Parker that this prohibition ran afoul of the US Constitution. While the Texas law remains on the books, Parker mandated that it no longer be enforced in Houston, ordering the city to “extend benefits” to government employees’ same-sex spouses who’d been legally married elsewhere. (At this point, Texas’ same-sex marriage ban had not yet been struck down.) Two taxpayers, Jack Pidgeon and Larry Hicks, challenged Parker’s directive shortly thereafter, arguing that by granting benefits to same-sex couples, Houston was “expending significant public funds on an illegal activity.” (When Parker left office, current Houston Mayor Sylvester Turner stepped in as the defendant.) A Texas trial court agreed and blocked the new policy. While the city appealed that decision, the US Supreme Court issued Obergefell in June 2015, invalidating state-level same-sex marriage bans. The 5th Circuit Court of Appeals applied Obergefell to Texas several days later in De Leon, striking down the Texas’s ban on same-sex marriage. In light of these decisions, a state appeals court reversed the block on same-sex benefits in Houston and sent the case back down to the trial court “for proceedings consistent with Obergefell and De Leon.”

JANUARY 31, 2018

Ramirez v. State, __ S.W.3d __, 2018 Tex. App. LEXIS 873, 2018 WL 637367 (Tex. App.—Corpus Christi January 31, 2018, no pet. h.).

The Corpus Christi Court affirms the conviction of a teacher found guilty of having sexual intercourse with two of her high school students. The teacher claimed that the penal code statute criminalizing such behavior was unconstitutional as a violation of her fundamental right to privacy. The teacher argued that Obergefell held that intimacy between consenting adults to be a fundamental right. The Corpus Christi Court disagrees that Obergefell made any such holding, but instead only recognized the right to marry as fundamental.

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TEXAS FEDERAL CASES CITING OBERGEFELL

Ranolls v. Dewling, 223 F. Supp. 3d 613, 2016 WL 7726597 (E.D. Tex. filed Sept. 22, 2016).

Denial of summary judgment by the United States District Court. The court found that Obergefell applies retroactively. Further, genuine issues of material fact existed with respect to Hogan and Ranolls’s informal marital status under Texas Family Code § 2.401, precluding summary judgment on the issue.

Freeman v. Turner, Case 4:17-cv-02448 (S.D. Texas, filed Aug. 10, 2017)

Three same-sex married couples filed a federal lawsuit against Houston Mayor Sylvester Turner and the City of Houston seeking a declaratory judgment and preliminary injunction protecting their rights to spousal benefits for city employees. Currently, the benefits are being received and no court has yet ordered the City to cease the payments.

Judge Gilmore dismissed the case for lack of subject matter jurisdiction. In part, the Court based its ruling on the fact that the benefits at issue were not currently being withheld and no court had ordered them to cease. As such, their claims were not ripe and would not be until Pigeon v. Turner had worked its way back down through the state courts. The court also found that the plaintiffs lacked Article III standing. A PDF of dismissal order is available at https://txvalues.org/wp-content/uploads/2014/04/FreemanvTurner.pdf (last accessed 3/20/18).

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DEVELOPMENTS IN OTHER STATES

ARIZONA

Arizona applies a statutory marital-paternity presumption to similarly situated female spouses (presumption of maternity?)

McLaughlin v. Jones in & for Cty. of Pima, 401 P.3d 492 (Ariz. 2017) cert. denied, February 26, 2018

Issue: Whether the statutory paternity presumption found in Arizona Revised Statute Section 25-814(A)(1) regarding “Presumption of Paternity” applied to similarly situated women in same-sex marriages.Background: According to Arizona Revised Statute Section 25-814(A)(1), “[a] man is presumedto be the father of the child if…[h]e and the mother of the child were married at any time in theten months immediately preceding the birth or the child is born within ten months after themarriage is terminated…” The question presented to the Arizona Supreme Court was whetherthis presumption could be extended to women, as the statute only presumed “paternity” formen.Holding: Because Obergefell held that couples in same-sex marriages are constitutionally entitledto the “constellation of benefits the States have linked to marriage,” the paternity presumptionin Arizona Revised Statute Section 25-814(A)(1) applied equally to women in same-sexmarriages. The Arizona statute clearly affords married couples a benefit over non-marriedcouples-the establishment of parental rights under the law. After Obergefell, same-sex marriedcouples must be afforded the same rights and treatment as opposite-sex married couples. Thus,Arizona Revised Statute 25-814(A)(1) must have a gender-neutral interpretation to protect therights of all parents, including women in same-sex marriages.*Note: Petition for writ of certiorari denied by U.S. Supreme Court on February 26, 2018

ARKANSAS

Arkansas must list same-sex parents on children’s birth certificates.

Pavan v. Smith, 137 S.Ct. 2075 (June 26, 2017)

Issue: What effect did the Supreme Court’s holding in Obergefell v. Hodges have on Arkansas’ rules governing the issuance of birth certificates? Ark. Code Section 20-18-401 (2014).

Background: In Arkansas, when a married woman gives birth, state law generally required the name of the mother’s male spouse to appear on the child’s birth certificate, regardless of his

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biological relationship to the child. That law did not extend to similarly situated same-sex couples, in that the State would not issue birth certificates including the name of female spouses of women who gave birth in the State.

Holding: Such differential treatment infringes on Obergefell’s commitment to provide same-sex couples “the constellation of benefits that the States have linked to marriage.” The statute allowed Arkansas officials to treat same-sex partners differently from opposite-sex partners and denied them the right to be listed on a child’s birth certificate. Obergefell specifically identified death and birth certificates as “rights, benefits, and responsibilities” that same-sex couples must have. The Arkansas statute denied married same-sex couples access to the constellation of benefits that Arkansas linked to marriage, and thus was unconstitutional to the extent that the statute treated same-sex couples differently from opposite-sex couples.

KENTUCKY

Miller v. Davis, 267 F. Supp. 3d 961 (E.D. Ky. 2017)

Same-sex couples who obtained preliminary injunction prohibiting county clerk from denying them marriage licenses prevailed in their 1983 action.

MISSISSIPPI

Same-Sex Couples Have Right to Adopt in Mississippi

Campaign for S. Equal. v. Mississippi Dep’t of Human Servs., 175 F. Supp. 3d 691 (S.D. Miss. 2016)

U.S. District Court Judge Jordan struck down Mississippi’s ban on adoption by same-sex couples. Judge Jordan held in Campaign for Southern Equality v. Mississippi Department of Human Services et al. that same-sex couples in Mississippi have a right to adopt. In his ruling, Judge Jordan explicitly stated that the Mississippi law banning adoption by gay couples violates the Equal Protection Clause.

Campaign for Southern Equality v. Bryant, 197 F. Supp. 3d 905 (S.D. Miss. 2016).

The Court revived an injunction to protect those seeking same-sex marriage licenses after Mississippi enacted legislation (HB 1523) allowing clerks to recuse themselves from licensing same-sex marriages.

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PENNSYLVANIA

Same-Sex Common Law Marriage Retroactive in Pennsylvania

In re Estate of Carter, 2017 PA Super 104, 159 A.3d 970 (Apr. 17, 2017).

“Michael Hunter appeals from the July 8, 2016 order denying Hunter’s petition for a declaration that he and his late partner, Stephen Carter, had entered into a common law marriage prior to January 1, 2005. Because the United States Constitution mandates that same-sex couples have the same right to prove a common law marriage as do opposite-sex couples, and because we conclude that Hunter met his burden of proving a common law marriage, we reverse and remand.”

VIRGINIA

Woman Deemed Not a “Parent” of Child Conceived During 10-year Same-Sex Relationship

Hawkins v. Grese, 809 S.E.2d 441 (Va. Ct. App. 2018).

(February 13, 2018) - The Court of Appeals, Robert J. Humphreys, J., held that: 1 trial court had rational basis for limiting the term “parent” to relationship to a child through either biological procreation or legal adoption; 2 no exception to general bar against third party standing applied to allow same-sex partner to assert constitutional right of child to associate with her; and 3 same-sex partners failed to demonstrate special facts and circumstances sufficient to rebut presumption in favor of granting custody of child to biological mother.

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SELECTED ARTICLES & CLES

1. Hon. Dennise Garcia, Same-Sex Issues, State Bar of Texas, Adv. Fam. L. Course, 21 (2017)

2. Ellen A. Yarrell, Does Marriage Really Mean Marriage for Same-Sex Couples?Arguments for and Against the Retroactive Application of Obergefell in Texas, Texas Bar College Annual Summer School, 27 (2017)

3. Aimee Pingenot Key et al., The New Normal–Modern Family Issues in a Changing Landscape., State Bar of Texas, Innovations: Breaking Boundaries in Custody Litigation, 3 (2017)

4. Steven H. Snyder & Richard B. Vaughn, The Modern Family, 39-SPG Fam. Advoc. 32 (Spring 2017)

5. Mark Walsh, Married with Kids: Court Rules on Birth Certificate Designations for Same-Sex Parents, 103-Sep A.B.A. J. 20 (September 2017)

6. Oscar I. Roos & Anita MacKay, The Evolutionary Interpretation of Treaties and the Right to Marry: Why Article 23(2) of the ICCPR Should be Reinterpreted to Encompass Same-Sex Marriage, 49 Geo. Wash. Int’l L. Rev. 879 (2017)

7. Katharine K. Baker, Quacking Like a Duck? Functional Parenthood Doctrine and Same-Sex Parents, 92 Chi.-Kent L. Rev. 135 (2017)

8. Susan Frelich Appleton, Obergefell’s Liberties: All in the Family, 77 Ohio St. L.J. 919 (2016)

9. Walter R. Schumm, et al., Assessing the History of Exaggerated Estimates of the Number of Children Being Raised by Same-Sex Parents as Reported in Both Legal and Social Science Sources, 30 BYU J. Pub. L. 277 (2016)

10. Karen J. Langsley, The Supreme Court’s Marriage Equality Decision–Obergefell v. Hodges and Its Effect on Texas, Texas Bar College Annual Summer School, 28 (2016)

11. Nancy Levit, After Obergefell: The Next Generation of LGBT Rights Litigation, 84 UMKC L. Rev. 605 (Spring 2016)

12. Helen M. Alvare, Marriage and Family as the New Property: Obergefell, Marriage, and the Hand of the State, 28 Regent U.L. Rev. 49 (2015–2016)

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13. Eric I. Wrubel & Linda Genero Sklaren, The “Parent” Paradox in a Post-Obergefell World, 38-SPG Fam. Advoc. 32 (Spring 2016)

14. June Carbone & Naomi Cahn, Marriage and the Marital Presumption Post-Obergefell, 84 UMKC L. Rev. 663 (Spring 2016)

15. Jaime DeWees, “But What About the Children”?: DeBoer v. Snyder and the Implication of (Inevitable) Same-Sex Marriage Equality on Children Within the “Stable Family Unit,” State Bar of Texas, Fam. L. Sect. Rep (Winter 2015)

16. Tovah E. Pentelovitch, Relief Amidst the Chaos: A Legislative Opportunity to Offer Temporary Relief to Same-Sex Couples Seeking Division of Assets in Texas, State Bar of Texas, Fam. L. Sect. Rep. (Spring 2015)

17. Barbara D. Nunneley, Same-Sex Issues – Where Are We Today?, State Bar of Texas, Adv. Fam. L. Course, 19 (2015)

18. Linda J. Ravdin, Premarital Agreements and the Migratory Same-Sex Couple, 48 FAM.L.Q. 397 (2014)

19. Kendra Huard Fershee, The Prima Facie Parent: Implementing a Simple, Fair, and Efficient Standing Test in Courts Considering Custody Disputes by Unmarried Gay or Lesbian Parents, 48 FAM. L.Q. 435 (2014)

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USEFUL (AND FUN!) RESOURCES

INTERACTIVE “EQUALITY MAPS”

LGBT Movement Enhancement Project (MAP) has created an interactive map that can be explored by state or by issue (e.g., marriage recognition, parental recognition, such as de facto parent recognition or parents using donor insemination, etc.). Helpful links to relevant state statues appear below most maps. There is also information on the site about the organization’s methodologies and the rationale behind their maps.

• http://www.lgbtmap.org/equality-maps

SURROGACY LAWS INTERACTIVE MAP

Creative Family Connections has created an interactive state-by-state map of surrogacy laws. It’s very easy to use. Simply click any state on the map for more information about surrogacy in that state. The accuracy of the information available on the site has not been independently verified.

• https://www.creativefamilyconnections.com/us-surrogacy-law-map/