Not voluntarily, of course, but it could happen.
One couple wants to get married, while the other just wants theirs recognized. A third couple wants a divorce, while the fourth wants theirs finalized. If all win their lawsuits, they could overturn the Texas ban on same-sex marriage.
A federal court in San Antonio will hear arguments next month from the attorneys representing the couples who want to live lawfully wedded. The Texas Supreme Court is considering the cases of the couples who want their out-of-state marriages legally dissolved.
They are challenging a constitutional ban on gay and lesbian marriages approved by 1.7 million Texas voters in 2005. At the time, only Massachusetts allowed gay marriage and conservatives hoped to pass a federal constitutional amendment defining marriage as between one man and one woman.
Eight years later, 16 states and the District of Columbia have legalized same-sex marriages, and New Mexico is allowing marriages pending a decision by that state’s Supreme Court later this year. The U.S. Supreme Court has also struck down the Defense of Marriage Act, saying federal authorities cannot deny the rights of couples legally married under state law.
That led to the first encroachment on Texas law, when the Texas National Guard agreed last week to begin processing applications for military benefits filed by same-sex couples. Initially, the guard told service members to apply for benefits at federal facilities because Texas law banned them from recognizing same-sex marriages.
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The two Texas couples suing to overturn the state constitutional amendment have filed their case in federal court in San Antonio. They claim Texas is denying them their constitutional rights by either refusing to let them get married, or to recognize their marriage from another state.
Abbott has promised to defend the Texas law, as he would any other state law. But in a legal opinion declaring domestic partner benefits unconstitutional in April, he acknowledged that U.S. Supreme Court decisions on same-sex marriages could overturn Texas’ constitutional provision.
See here and here for the background. The referenced opinion by Abbott on domestic partner benefits, which cities have generally ignored or worked around, is here. I do think there’s some realization on the anti-equality side that they’re in a box, but they have no interest in doing anything about it. The fact that this bit of bigotry was enshrined in our state constitution pretty much guarantees that the only way to undo it will be via the courthouse, since there may never be a two-thirds majority of the Legislature to pass a joint resolution repealing what was passed in 2005. With all the activity in the courts these days, that could happen sooner than we think.