State judges preempt SCOTUS - first Texas gay marriage takes place

by Karen L. Willoughby |

((FILE) REUTERS/Stephen Lam)A box of cupcakes are seen topped with icons of same-sex couples at City Hall in San Francisco, June 29, 2013. Same-sex couples rushed to San Francisco's City Hall to be legally married after the U.S. 9th Circuit Court of Appeals officially ended California's ban on gay marriage following a landmark ruling at the Supreme Court.

AUSTIN, Texas (Christian Examiner) – State District Judge David Wahlberg granted a marriage license to a lesbian couple who picked up the document Thursday and were married almost immediately by a rabbi the same day, and, Travis County Probate Judge Guy Herman granted "common-law wife" status to a lesbian Wednesday in a dispute with her dead partner's siblings over the deceased's estate.

Wahlberg ruled Sarah Goodfriend and Suzanne Bryant must be granted a marriage license in accordance with "their rights under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution."

"Given the urgency and other circumstances in this case," Wahlberg ordered the license be issued immediately, waiving the state's 72-hour waiting period.

Goodfriend requested an expedited issuance of the marriage license, stating poor health as the reason.

According to the Austin American-Statesman, the couple filled out paperwork and walked outside to stand in front of the Travis County Court sign and exchanged vows with a rabbi presiding—"fearing the state would attempt to step in and enforce the law and constitutional amendment banning same-sex marriage."

Travis County Clerk Dana DeBeauvoir said the court's ruling was limited to this couple only and that her office would not be issuing any more licenses to same-sex couples.

Meanwhile, Travis County Probate Judge Guy Herman ruled in favor of a lesbian over the estate rights of her deceased partner's siblings, saying the state's ban on same-sex marriage was unconstitutional. In effect he granted Sonemaly Phrasavath common-law "wife" status with his decision.

Stella Powell died from colon cancer last summer without leaving a valid will, eight months after she was diagnosed and eight years into her relationship with Phrasavath that was formalized by a Zen priest with a commitment ceremony.

To have a common law marriage in Texas, according to the Travis County website, the couple must: Agree to be married; live together in Texas as husband and wife; and tell other people that they are married.

Powell's siblings have not decided yet if they are going to appeal, and county officials "scrambling to understand the impact of the judge's 3 p.m. order, decided against issuing marriage licenses to same-sex couples, at least for now," according to the Statesman.

That was before Wahlberg's ruling the next day.

Both judges essentially have preempted the Supreme Court from deciding the issue when they take up the matter in May.

A federal judge ruled a year ago that Texas' ban on same-sex marriage was unconstitutional, but imposed a stay on his ruling—meaning no same-sex marriages would be allowed—because he anticipated an appeal.

The appeal was heard last month by the U.S. 5th Circuit Court of Appeals.

Last week, lawyers asked this court to lift the stay after the U.S. Supreme Court allowed same-sex marriages to proceed in Alabama following a federal judge's ruling that that state's ban on same-sex marriage was unconstitutional.

So far, the New Orleans-based federal court has not issued an opinion on the case or acted on the petition to lift the stay.