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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