Attorney General Asked To Weigh In On Transgender Marriage

Texas Attorney General Greg Abbott has been asked to weigh-in on whether or not a marriage license can be issued to a couple when one of the partners is transgendered. Interestingly, the opinion may be a moot point for the couple in question; they were married in Bexar County over the weekend.

The Fort Worth Star-Telegram has a fairly concise summary of the case:

El Paso County Attorney Anne Bernal has asked Texas Attorney General Greg Abbott to rule on whether she should issue a marriage license to two women, one of whom was born a man.

Prior to a sex change operation, Sabrina Hill was known as Virgil. She is now seeking to marry another woman.

Under Texas law, Hill is a male, according to Bernal’s request. Hill’s original New York birth certificate lists her as a male.

However, a certified birth certificate from a Washington state judge declares that Hill is a female. So does Hill’s Arizona driver’s license.

In 2009, the Legislature changed the law to allow a person trying to get married to provide a certified birth certificate as legal identification.

The question to Abbott: which form of identification takes precedence when a transgender person wants to be treated as the sex listed under their “true and accurate birth certificate?”

The El Paso Times has a bit more detail on the couple’s marriage in Bexar County and some of the legal precedent used in Bexar County to grant the license:

Last month, Bernal filed a request asking Attorney General Greg Abbott to decide whether Hill is a man based on the birth certificate or if Hill is a woman based on the name-change documents and on a driver’s license.

“A request for the opinion is not necessarily just on this case but it’s about how to apply the law,” said Elhiu Dominguez, spokesman for the county attorney. “The information on this case contradicted each other. Basically, we are asking the attorney general if there is a document that is more important than the other ones.”

Bexar County Clerk Gerard C. “Gerry” Rickhoff said the marriage license was granted based on Hill’s birth certificate.

Rickhoff said Bexar County’s decision is based on the Littleton vs. Prange court case out of San Antonio in 1999.

In that case, Christie Lee Littleton (born Lee Cavazos before a sex change) was married for seven years until the death of her husband, Jonathan Mark Littleton. Christie Lee Littleton filed a wrongful-death lawsuit against a doctor. A judge ruled against the lawsuit, deciding that Littleton, based on the original birth certificate, was a male and therefore could not be the spouse of another man.

Rickhoff said his office approves marriage licenses to same-sex couples, depending on their birth certificate, about once or twice each year.

The opinion request from El Paso County (.pdf) is a fascinating read and goes in great depth to discuss the case law and statutes involved in a situation like this.

The fact that El Paso County has requested an AG’s opinion on this poses a number of potentially interesting questions.

First, AG Opinions aren’t the law. The Texas State Library has one of the best summation paragraphs I’ve seen on this:

The opinions of the Attorney General have not the force of law and are legally binding on no one. They may be highly persuasive to the courts but apparently only in those cases where they coincide with the court’s view of the law.

That said, state agencies and county governments tend to follow the conclusions of the opinions–for better or worse. The question here is whether an Abbott ruling that the type of unions in question would be challenged, and, if so, by whom? Abbott’s opinion wouldn’t technically invalidate any of the legal marriages performed in Bexar County or any other county in Texas where officials follow a similar course of action. I’m not sure how the courts would determine who exactly has standing to make the challenge. Potentially, any couple in this situation could have standing because a negative AG’s decision could prompt a state agency to deny the couple services they would otherwise be eligible to receive.

The second question is how Abbott would rule on the matter. Legal precedent asides, we know Abbott to be a political crusader fairly hell-bent on using hot-button social conservative issues as a stepping stone to higher office. Would he rule that the marriages are legal based on the original birth certificates because that’s how he views the people to have been created by God, or that they are invalid because they violate the state’s DOMA law and various portions of the Texas Family Code? (I suspect the entire Federalist Society will end up loosing sleep over that question.)

An additional question is how Abbott’s office will rule on which birth certificate or identification should be honored–especially in cases such as the El Paso case where the IDs are from other states. Given the full faith and credit clause, the out of state birth certificates and name changes are pretty much unquestionable. However, how will Abbott handle which is the appropriate document for officials to be guided by in these cases? Given that the El Paso case involves multi-state forms of identification, it is a dangerous thicket for the AG’s office to wade into.

Finally, the possibility that Abbott could overreach in issuing an opinion is significant here. Nothing prevents him from opining that marriages in such cases shouldn’t be granted and that all marriages granted in similar cases were wrongly granted and should be voided. Although Abbott’s opinion would not legally void the marriages, it would create a mass of brambles for courts to wade in when considering divorces, testementary and probate matters, and more. It would also create a major mess for any couples similarly situated who are receiving or may try to apply for any kind of state programs or aide, such as food stamps. State agencies are likely not to go against the AG, meaning that the issues of who is and isn’t a dependent for social services purposes becomes problematic.

Finally, if it weren’t for the fact that the couple appears not to have sought any of the publicity surrounding their marriage, this would be a made-for-SCOTUS test case. Even without that intention, it appears the case may be headed in that direction depending upon how the AG rules–and who steps up to challenge it if he rules badly. This case could well create more problems for the state’s DOMA laws than any same-sex divorce case ever could because of the fact that it could affect lawfully married couples who have no desire for a divorce.