## -f&BE ATTORNEY GENERAL OF TEXAS

**CRAWFORD G**  **MAR ’** **IIS** **.*-II-** **olblrz Ar;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 afemale on an application for marriage license? Query Two: Can two men in

### Texas acquire the status of marriage? According to the facts given inyour letter, two males, one ofwhom was dressed as afemale, appeared at the County Clerk’s office and made application for amarriage 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 ofVital Statistics of the State Department ofHealth. (b) The application form shall contain:

(1) aheading entitled ‘Application for marriage license, County, Texas; ’



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(2) spaces for each applicant’s full name (including the woman’s maiden surname), address, social security number, ifany, date ofbirth, place ofbirth (including city, county, and state), and race; Section 1.03 (b) (2) calls for awoman’s maiden name to be set out infull. Billie Ert is not awoman as called for by the statute, which incorporates the common law, and as is designated onthe 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 aprinted oath onthe form reading :

“I solemnly swear (or affirm) that the information

Ihave given inthis Application is correct, that Iam not presently married, and that Iam 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 andwillfully, under

oath or affirmation legally administered, make afalse statement by avoluntary declaration or affidavit, which is not requested by law or made inthe course of ajudicial proceeding, he is guilty of false swearing, and shall be punished by confinement inthe penitentiary not less than two nor more than five years. ” InSteher v.. State, 4 S.W. 880 (Tex. Ct. ofApp. 1887), itwas held that the giving of afalse affidavit to a county clerk inorder to obtain a marriage license was assignable andwould support aprosecution for “false swearing” under the Texas Statute defending that offense. See also Davidson v. State, 3S.W. 662 (Tex. Ct. ofApp. 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 tobe aviolation of the prohibition against false swearing inArticle 310. See, for example: Wilson v. State, 93 S.W. 547 (Tex. Crim. 1906), inwhich afalse age for the female was given; Adams v. State, 91 S.W. 225 (Tex. Crim.

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1906). inwhich the false swearmg included the female’s age, the father’s consent to the marriage, and the claim that there was nolegal 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 amarriage is not affected by any fraud, mistake, or illegality that occurred in obtaining the marriage license. ‘I The clerk is provided a remedy atlaw, however, which turns upon the question ofwhether the parties involved have acquired the status of a marriage. Attorney General’s Opinion No. M-1216, dated September 17, 1972, states that amarriage 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 inthe United States Supreme Court, which so held. That opinion coupled with a study ofthe 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 infocus.

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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(5) consequences of aparticular construction; (6) administrative construction ofthe 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 onformer statutory provisions dealing with the same or similar subjects.

Marriage has been defined in Texas as the voluntary union for life ofone man and one woman as husband andwife, 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 onthe 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 acontract 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, inand of itself, acontract, vesting rights inparties, 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, itmay strip certain classes oftheir contractual powers in regard to entering into the marriage relationship. Gowin v. Gowin, 292 S.W. 211 (Tex. Civ.App. 1927). InGowin, supra, the court spoke to the issue immediately at hand inholding that among those classes ofpeople who, although possessing full contractual powers in all other respects, may not enter into the status ofmarriage were ‘Iaman and a man, ‘Iand “a woman and awoman. ‘I

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

“Section 2.01. State Policy

Inorder to promote the public health andwelfare and to provide the necessary records, this code prescribes detailed and specific rules to be followed in establishing

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the marriage relationship. However, .inorder to provide stability for those entering into the marriage relationship in good faith and toprovide legitimacy and security for the children ofthe ‘relationship, it is the policy ofthis state to preserve and uphold each marriage against claims of invalidity unless strong reasons exist for holding itvoid or voidable. Therefore, every marriage entered into inthis 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 aperson to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes ituntil one who asserts the validity of aprior marriage proves its validity. ” At first blush, itmight appear that this statute upholds the validity of amarriage by aman to another man inthat 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 twopersons of the opposite sex may marry. Title 1ofthe 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 andwife, other courts have done so. InDarinv. Bars, 188 N.C. 200, 124 S.E. 556, 568 (1924), the court said, “a husband is aman who has awife, and awife is awoman 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, inprescribing the contents of the application for license calls for the woman’s maiden surname indicating that awoman is anecessary party to amarriage. Even Section 2. 01 ofthe Family Code, supra. in declaring the State Policy presupposes the existence of amarriage between aman and awoman in saying, “to provide stability

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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 ofthe word children points to the legislative intent here involved. Itwas the legislative intent to provide for amarriage 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) atpage 842, the Court said:

“Courts will not follow the letter ofthe statute when itleads away from its true intent and purpose ofthe legislature, and to conclusions inconsistent with the general purpose ofthe 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 inthe distinction of sex inherent in amarriage relationship would place the attempted marriage of two people of the same sex into a cat’egory ofbeing absolutely null, having no force or effect for any purpose, at any place or time, andwhose 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 amarriage in Texas. SUMMARY ’ Itis impossible for persons ofthe same sex to acquire the status of amarriage in Texas. A charge of false swearing may be prosecuted where aperson swears falsely that they are a certain sex when infact they are not.

ORD C. MARTIN Attod ey General ofTexas

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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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