By Chuck Lindell
A Travis County judge ruled Tuesday that the Texas ban on gay marriage is unconstitutional, but there was no rush to the altar after county officials _ scrambling to assess the effect of the judge's 3 p.m. order _ declined to begin issuing marriage licenses to same-sex couples, at least for now.
Probate Judge Guy Herman's ruling, which affects only Travis County, came as part of an estate fight in which Austin resident Sonemaly Phrasavath sought to have her eight-year relationship with another woman, Stella Powell, declared a common-law marriage. Powell died last summer of colon cancer.
After an hourlong hearing in the downtown Austin courthouse, Herman found that the state ban on gay marriage violated the U.S. Constitution's promise of equal protection and fair treatment under the law.
Whether the women's relationship was a common-law marriage _ which would entitle Phrasavath to a share of Powell's estate _ will be decided at a future date.
"It was never about property rights or about property," Phrasavath said after the hearing. "At least for me, it was about standing up for my relationship and my marriage. If I didn't do that, I would absolutely have no voice."
Phrasavath and Powell began dating in 2006, lived together in a Northwest Hills home and celebrated a 2008 marriage ceremony that, though not recognized under Texas law, was performed by a Zen Buddhist priest.
"I can't imagine anyone being married for six or seven years, then having to walk away after losing their spouse and feel like their marriage never happened," Phrasavath said.
Travis County Clerk Dana DeBeauvoir, who praised Herman for his ruling, reluctantly declined to begin issuing marriage licenses to same-sex couples "at the present time," but said county lawyers are examining the decision to determine her options.
"Right now, I think it's no, but we are checking," DeBeauvoir said.
Michael Knisely, the attorney for Powell's siblings who opposed Phrasavath's claim on her estate, said no decision had been made on whether to appeal.
Texas Attorney General Ken Paxton last month declined to intervene in the case and thus isn't in a position to ask the 3rd Court of Appeals to review Herman's ruling. "Our office is reviewing today's ruling from Travis County," Paxton spokeswoman Cynthia Meyer said.
Because Herman is a county judge, his ruling had no effect outside Travis County.
However, the state is awaiting word from the 5th U.S. Circuit Court of Appeals, which is reviewing a federal judge's 2014 ruling that overturned the state ban on same-sex marriage. Texas was allowed to continue enforcing its ban while the appeal continued.
And the U.S. Supreme Court will hear arguments on same-sex marriage in April, with a ruling to come this summer.
Travis County courts became involved in the issue after Powell died in June, eight months after she was diagnosed with colon cancer. A will dividing her estate among her three siblings, mother, Phrasavath and a church was never executed.
Last fall, two of the siblings filed a motion to determine heirship that stated Powell wasn't married. Phrasavath responded by challenging the constitutionality of Texas' prohibition on gay marriage and moved to establish her relationship as a common-law marriage, a legal distinction that doesn't require a marriage license.
Texas courts can recognize a common-law marriage if a couple who lives together _ no time limit is specified _ agrees they are married and presents themselves as married, such as introducing each other as a spouse.
During Tuesday's hearing, Phrasavath's lawyer, Brian Thompson, argued that the U.S. Supreme Court's 2013 decision in U.S. v. Windsor _ which voided a key part of the U.S. Defense of Marriage Act _ laid the groundwork for allowing Herman to make a similar ruling on Texas' gay-marriage ban.
The Windsor ruling found that the Defense of Marriage Act's principal purpose was to impose inequality in a way that demeaned same-sex couples and imposed a "visible and public" burden, Thompson said.
"Imagine being told, at the time of your most difficult loss, that your marriage, that all those anniversaries, that that relationship didn't mean anything in the eyes of the law," he told Herman.
(c)2015 Austin American-Statesman, Texas