About Time

Texas Judge Rules Gay Marriage Was Legal Before It Was Legal

Sonemaly+ StellaA Texas judge ruled that a lesbian couple had lived in a common law marriage, and that marriage was legal even though it occurred, and sadly ended, before the Supreme Court ruled in favor of legalizing marriage equality.

The Austin American-Statesman reports that Travis County Probate Judge Guy Herman recently finalized his ruling in favor of Stella Powell and Sonemaly Phrasavath (photo, right), saying the two women had lived in a relationship that fit the standards of marriage, even though they were together before the Supreme Court in June legalized the institution for same-sex couples.

The couple began dating in 2006, and in 2008 they had a commitment ceremony; although their relationship was not legally recognized in Texas at the time, Powell and Phrasavath “lived openly as spouses in a Northwest Austin home,” according to the Statesman.

Then Powell developed cancer, and she died in 2014.

While she was undergoing cancer treatments, Powell wrote a will detailing her wishes to leave her estate to Phrasavath; but she died before signing the document, which also means she did not have it notarized. Powell’s relatives dragged Phrasavath into court, claiming that since Texas did not recognize same-sex marriages in 2014, Phrasavath had no spousal rights to Powell’s estate, furthermore complicated by the fact that anything written in the will was irrelevant because the document wasn’t legally binding. The Texas Attorney General, Ken Paxton, also fought against Phrasavath in the case, which was not a surprise as he has been a leading obstructionist in the futile battle of county clerks refusing to issue marriage licenses to same-sex couples.

However, Judge Herman ruled that Phrasavath did have spousal rights, and said she and Powell’s family would split Powell’s estate. He said that although Powell had not finalized the will, she and Phrasavath obviously intended to fulfill the definition of marriage, and those rights should not be ignored simply because of the specific date of when Powell died was shortly before the Supreme Court ruling on Obergefell v. Hodges, the case that legalized marriage equality in the United States.

Phrasavath’s victory could have wide-reaching legal implications, at least in Texas. Judge Herman has created a legal precedent to allow individuals to fight for inheritances lost when their same-sex spouses died, and other family members claimed money and property that was not protected by marriage laws. Herman’s ruling is rather uncommon, since judges rarely rewind time by applying judgments to situations that should have been legal in the past based on the laws that are current. The catch with Phrasavath’s case is the fact that Texas is one of the states in the U.S. that recognizes “common law” marriages.

Common law marriages are legally binding arrangements between two people who have lived together for an extended period of time with the clear intent of partnership, even though they have not officially registered for a license. According to National Conference of State Legislatures, several states have statutes that allow for common law marriages, including Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. In the states of Alabama, Rhode Island, and Oklahoma there are no laws that specifically allow for common law marriage, but courts have allowed the arrangements in some cases.

Travis County includes the Texas state capitol, Austin, a city that is known for being an oasis of liberal politics surrounded by the rest of the conservative state.

Bonus: In the series of short films of If These Walls Could Talk 2, released on TV in 2000, Vanessa Redgrave plays a character in a similar situation, suffering the death of her spouse and then the added indignity of having no rights to protect her own home. It is the first short film in the collection, a captivating series of stories that features absolutely spectacular casts of actors including Ellen Degeneres, Sharon Stone, Chloë Sevigny, Michelle Williams, and Natasha Lyonne (currently in Orange Is The New Black).
https://youtu.be/ERkmXIe5nxc