-f&BE ATTORNEY GENERAL 

OF TEXAS 

CRAWFORD G MAR’IIS 

.*-II- olblrzAr;STlh - 78711 

December 5, 1972 

Honorable Jack Salyer 

District Attorney 

23rd Judicial District 

P. 0. Drawer 1666 

Bay City, Texas 77414 

Dear Mr. Salyer: 

Opinion No. M-1277 

Re: Criminal violations and remedies 

involved concerning marriage 

license issued to two males. 

You have requested an opinion on the following: 

Query One: Is there a criminal violation for false awearing 

where a man falsely states that he is a female on 

an application for marriage license? 

Query Two: Can two men in Texas acquire the status of marriage? 

According to the facts given in your letter, two males, one of whom 

was dressed as a female, appeared at the County Clerk’s office and made 

application for a marriage license. The one posing as the female filled in 

the portions of the license application provided for female applicants. Subsequently the license was issued. 

The Texas Family Code, (Acts 61st. Leg., R.S., 1970, Ch. 888, 

p. 7), Title I. HUSBAND AND WIFE, Subtitle A, Sec. 1.03 entitled Application Form provides: 

(a) The county clerk shall furnish the application form as prescribed by the Bureau of Vital Statistics of the State Department 

of Health. 

(b) The application form shall contain: 

(1) a heading entitled ‘Application for marriage 

license, County, Texas; ’ 

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Honorable Jack Salyer, Page 2 (M-1277) 

(2) spaces for each applicant’s full name (including 

the woman’s maiden surname), address, social security number, if any, date of birth, place of birth 

(including city, county, and state), and race; 

Section 1.03 (b) (2) calls for a woman’s maiden name to be set out in full. 

Billie Ert is not a woman as called for by the statute, which incorporates 

the common law, and as is designated on the form; therefore the information given as to the woman’s maiden name on the application is false, 

Section 1.03 (b) (5) of the Code calls for a printed oath on the form 

reading : 

“I solemnly swear (or affirm) that the information 

I have given in this Application is correct, that I am not 

presently married, and that I am not related to the other 

applicant within the degrees prohibited by law. ” 

The Texas Penal Code, Article 310 entitled “False Swearing” provides: 

“If any person shall deliberately and willfully, under 

oath or affirmation legally administered, make a false statement by a voluntary declaration or affidavit, which is not requested by law or made in the course of a judicial proceeding, 

he is guilty of false swearing, and shall be punished by confinement in the penitentiary not less than two nor more than 

five years. ” 

In Steher v.. State, 4 S. W. 880 (Tex. Ct. of App. 1887), it was held 

that the giving of a false affidavit to a county clerk in order to obtain a marriage license was assignable and would support a prosecution for “false 

swearing” under the Texas Statute defending that offense. See also Davidson 

v. State, 3 S. W. 662 (Tex. Ct. of App. 1886). Furthermore, the giving of 

false information on marriage license applications , which must be sworn in 

accordance with V. A. T. S. , Family Code, Sections 1.02 and 1.03, has been 

found to be a violation of the prohibition against false swearing in Article 310. 

See, for example: Wilson v. State, 93 S. W. 547 (Tex. Crim. 1906), in which 

a false age for the female was given; Adams v. State, 91 S. W. 225 (Tex. Crim. 

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Honorable Jack %lyer, page 3 (M-1277) 

1906). in which the false swearmg included the female’s age, the father’s 

consent to the marriage, and the claim that there was no legal objection to 

the marriage. 

Although there is a criminal violation involved, that does not of itself provide the clerk with a remedy to cancel the license. Section 2.02 of 

the Family Code, supra, entitled “Fraud. Mistake, or Illegality in Obtaining License” provides: 

“Except as otherwise provided by this chapter, the 

validity of a marriage is not affected by any fraud, mistake, 

or illegality that occurred in obtaining the marriage license. ‘I 

The clerk is provided a remedy at law, however, which turns upon 

the question of whether the parties involved have acquired the status of a 

marriage. Attorney General’s Opinion No. M-1216, dated September 17, 

1972, states that a marriage license may not be issued to two persons of the 

same sex. We noted therein the case of Baker v. Nelson, 191 N. W. 2d 185 

(Minn. Sup. 1971), presently in the United States Supreme Court, which so held. 

That opinion coupled with a study of the authorities makes any attempted marriage between persons of the same sex an impossibility. The following study 

of the authorities will put the exact problem clearly in focus. 

Since the Family Code does not deal with the exact problem at hand, 

it is necessary to look to the Code Construction Act, Article 5429 b-2, Subchapter C, Sec. 3. 03, Vernon’s Civil Statutes (60th Leg:, 1967) for guidance 

in construing the various provisions of the Code. 

“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; 

(2) circumstances under which the statute was enacted; 

(3) legislative history ; 

(4) common law or former statutory provisions including 

laws upon the same or similar subjects; 

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Honorable Jack Salyer, page 4 (M-1277) 

(5) consequences of a particular construction; 

(6) administrative construction of the statute; and, 

(7) title, preamble, and emergency provision. ” 

In accordance with the Code Construction Act, supra, we must look 

to the common law for guidance as well as rulings of Texas Courts on former 

statutory provisions dealing with the same or similar subjects. 

Marriage has been defined in Texas as the voluntary union for life 

of one man and one woman as husband and wife, to the exclusion of all others, 

for the discharge, to each other and to the community, of the duties legally 

incumbent on those whose association is founded on the distinction of sex, 38 

Tex. Jur.2d pp. 28, Sec. 1; McCracker v. Taylor, 146 S.W. 693 (Tex. Civ. 

App. 1912); Simpson v. Simpson, 380 S. W. 2d 855 (Tex. Civ. App. 1964, 

error ref. n. r. e. ). 

Texas Courts have also held that marriage is not a contract but a 

status created by mutual consent by one man and one woman. Grigsby v. Reib, 

105 Tex. 597, 153 S. W. 1124 (1913). Since marriage is not, in and of itself, 

a contract, vesting rights in parties, but a status, it is subject to dissolution 

civilly at the absolute will of the sovereign state. McGinly v. McGinly, 295 

S. W. 2d 913 (Tex. Civ.App. 1956). The Texas Courts have held that since 

the state controls what determines the marriage status, it may strip certain 

classes of their contractual powers in regard to entering into the marriage 

relationship. Gowin v. Gowin, 292 S. W. 211 (Tex. Civ.App. 1927). In Gowin, 

supra, the court spoke to the issue immediately at hand in holding that among 

those classes of people who, although possessing full contractual powers in 

all other respects, may not enter into the status of marriage were ‘I a man and 

a man, ‘I and “a woman and a woman. ‘I 

Section 2. 01 of the Family Code, supra, reads as follows: 

“Section 2.01. State Policy 

In order to promote the public health and welfare 

and to provide the necessary records, this code prescribes 

detailed and specific rules to be followed in establishing 

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Honorable Jack salyer, page 5 (M-1277) 

the marriage relationship. However, .in order to provide 

stability for those entering into the marriage relationship 

in good faith and to provide legitimacy and security for the 

children of the ‘relationship, it is the policy of this state 

to preserve and uphold each marriage against claims of invalidity unless strong reasons exist for holding it void or 

voidable. Therefore, every marriage entered into in this 

state is considered valid unless it is expressly made void 

by this chapter or unless it is expressly made voidable by 

this chapter and is annulled as provided by this chapter. 

When two or more marriages of a person to different spouses 

are alleged, the most recent marriage is presumed to be 

valid as against each marriage that precedes it until one who 

asserts the validity of a prior marriage proves its validity. ” 

At first blush, it might appear that this statute upholds the validity 

of a marriage by a man to another man in that it does not expressly forbid 

same. Nevertheless, we must look behind the statute to the intent of the legislature as is commanded by the Code Construction Act, oupra. 

The legislature has permeated the Family Code, supra, with the terms 

“husband, ” “wife, I’ and “marriage, ” and since the legislature must be presumed to know the definition and usage of these words, it is clear under both 

statutory law in Texas and Texas common laws that only two persons of the 

opposite sex may marry. Title 1 of the Family Code, supra, from which 

this statute is taken is entitled “HUSBAND AND WIFE” and although Texas 

Courts may not have directly spoken to the definition of husband and wife, other 

courts have done so. InDarinv. Bars, 188 N.C. 200, 124 S.E. 556, 568 (1924), 

the court said, “a husband is a man who has a wife, and a wife is a woman who 

has a husband. ” 

The various provisions of the Family Code, supra, indicate what the 

intention of the legislature was in enacting the Family Code. Section 1.03 of 

the Family Code, supra, which incorporates the common law, in prescribing 

the contents of the application for license calls for the woman’s maiden surname 

indicating that a woman is a necessary party to a marriage. Even Section 2. 01 

of the Family Code, supra. in declaring the State Policy presupposes the existence of a marriage between a man and a woman in saying, “to provide stability 

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Honorable Jack Salyer, page 6 (M-1277) 

for those entering into the marriage relationship in good faith and to provide legitimacy and security for the children of the relationship, . . . ‘I 

The use of the word children points to the legislative intent here involved. 

It was the legislative intent to provide for a marriage between those whose 

association is founded on the distinction of sex. 

In Calvert v. British-American Oil Producing Company, 397 S. W. 2d 

839, (Tex.Sup. 1965) at page 842, the Court said: 

“Courts will not follow the letter of the statute 

when it leads away from its true intent and purpose of the 

legislature, and to conclusions inconsistent with the general 

purpose of the act. ” 

Following this law coupled with Texas Common Law, there can be but 

one legal conclusion, persons of the same sex are not granted the status of 

marriage in Texas. 

The fundamental reliance by the legislature in the distinction of sex 

inherent in a marriage relationship would place the attempted marriage of 

two people of the same sex into a cat’egory of being absolutely null, having no 

force or effect for any purpose, at any place or time, and whose invalidity may 

be asserted by anyone, at any time, directly or collaterally. Simpson v. Neely, 

221 S. W. 2d 303 (Tex. Civ. App. 1969. error ref. ). In short, it is impossible 

for two men to acquire the status of a marriage in Texas. 

SUMMARY ’ 

It is impossible for persons of the same sex to 

acquire the status of a marriage in Texas. A charge of 

false swearing may be prosecuted where a person swears 

falsely that they are a certain sex when in fact they are 

not. 

ORD C. MARTIN 

Atto 

d 

ey General of Texas 

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Honorable Jack”stiyer, page 7 (M-1277) 

Prepared by Tazewell Speer 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

W. E. Allen, Chairman 

Linda Neeley 

Wardlow Lane 

Harriet Burke 

R. L. Lattimore 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

~First Assistant 

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