Substantive Rights in the Wake of Obergefell

Preface: We haven’t posted much recently due to a real rough couple of weeks personally. Katie and I truly appreciate the outpouring of love and support we’ve received from our family, friends, and colleagues through these tough times. Thank you and we love you all.

More substantively:

We are proud of the Supreme Court’s recent decision in Obergefell v. Hodges, which recognized the Constitutionally-protected fundamental right to (and all States’ required recognition of) same-sex marriage. This opens the doors to a number of legal rights which many have glossed over. For example, same-sex spouses now have standing to recover wrongful death damages and injury-related damages such as loss of consortium (that is, the loss of spousal love and affection due to serious injury), bystander recovery damages (that is, mental anguish due to the fear of imminent death to a family member), and loss of household services (that is, the value of household services an injured spouse is no longer able to provide). I’ve seen one case in my practice where I was forced to tell a same-sex couple legally married in another State that they weren’t entitled to these damages because the State of Texas didn’t recognize the validity of their marriage. I’m thrilled I won’t have to do that again.

I’m also, however, deeply disappointed in the response to the Obergefell decision by Texas’ leadership, particularly the Governor’s intellectually-flawed and dishonestcomments, and, more substantively, Attorney General Ken Paxton’s disturbing official opinion advising County Clerks and their employees that it’s perfectly legal to directly violate Federal law. A .pdf link can be read here.

It seems that the majority of County Clerks are following the law as laid down by the Supreme Court, including Travis and now Williamson Counties. Some Texas County Clerks are following A.G. Paxton’s (wrong) advice and refusing to issue same-sex marriage licenses, which apparently includes nearby Bastrop County.

McLeanLaw PC will provide and/or aid in the coordination of pro bono legal services for any Texas couple who are denied their (now Constitutionally-protected) fundamental right to marriage. If you or a loved one is in need of such services, please let us know.

Mark McLean