common law marriage
Stella Powell, left, and Sonemaly Phrasavath were together for eight years before Powell died from cancer in 2014. (Courtesy of Sonemaly Phrasavath)

After Promise to Obey Federal Law, Paxton Continues Fight Against Same-Sex Marriage


Despite his recent pledge to comply with the U.S. Supreme Court’s same-sex marriage ruling, Attorney General Ken Paxton is already seeking to prevent the decision from being applied in an Austin estate case.

Paxton’s office filed a motion August 25 in Travis County’s probate court aimed at blocking an Austin woman from inheriting a portion of her deceased partner’s estate, arguing that because same-sex marriage was illegal in Texas throughout the women’s relationship, Sonemaly Phrasavath has no legal right to her partner’s funds.

The motion was filed a day after the AG’s office, in an advisory, assured a federal judge in San Antonio that the state was in full compliance with the high court’s June 26 decision in Obergefell v. Hodges.

Based on the advisory, U.S. District Judge Orlando L. Garcia canceled a contempt hearing for Paxton over Texas’ failure to issue an amended death certificate to a gay widower for six weeks after the ruling.

Brian Thompson, Phrasavath’s attorney, told the Observer that the AG’s office’s continued filings in the case show that it is “not recognizing the full force of the Obergefell opinion.”

Representatives from the Texas Attorney General’s Office didn’t immediately respond to a request for comment.

Paxton’s office initially intervened in Phrasavath’s case in February, defending the state’s same-sex marriage ban after Travis County Probate Judge Guy Herman struck it down as unconstitutional. With same-sex marriage now settled by the Supreme Court, Thompson said it’s unclear why Paxton’s office remains involved in “what’s essentially a family dispute.”

After Phrasavath’s partner, Stella Powell, died without a will in 2014, two of her siblings sought to exclude Phrasavath from her estate. Phrasavath is now seeking to have their eight-year relationship recognized retroactively as a common-law marriage.

“We’re past the constitutional question, they lost on that, and now we’re just to the application of that to the facts of this case,” Thompson said.

Phrasavath’s lawsuit was one of at least 10 pending challenges to Texas’ same-sex marriage bans at the time of the Obergefell decision. After Herman’s February ruling, the Travis County clerk issued a marriage license to another lesbian couple, Sarah Goodfriend and Suzanne Bryant, before the AG’s office obtained a stay from the Texas Supreme Court blocking subsequent licenses.

In its motion for summary judgment in the Phrasavath case, the AG’s office argues that the women’s relationship wasn’t a common-law marriage because Texas’ same-sex marriage ban was “in full force and effect” during their relationship.

According to the state’s filings, “Phrasavath asks the court to reach back in time and declare that a relationship that at all points of existence could not have been a valid marriage under Texas law is now — over a year after the death of one spouse — a valid informal marriage under Texas law.”

Powell’s siblings make a similar argument in a separate motion for summary judgment.

But Thompson said the Obergefell ruling should apply retroactively, noting that plaintiff Jim Obergefell sought to be listed on his husband’s death certificate. And in the San Antonio case, Texas officials agreed to amend birth and death certificates for same-sex couples who were legally married in other states prior to the ruling.

Although Phrasavath and Powell weren’t legally married, they had a wedding ceremony at a Driftwood church in 2008 and signed an affidavit of domestic partnership. Phrasavath acted as Powell’s medical power of attorney and cared for her at their home during her eight-month bout with cancer. Powell died in June 2014.

“This is not, for her, about the money,” Thompson said of his client. “This is about respect and dignity, the kinds of words Justice Kennedy used in his opinion in Obergefell, and all [Paxton’s office is] trying to do is deny Sonemaly the dignity of being recognized as Stella’s spouse.”

A hearing on the respective parties’ motions for summary judgment is set for Monday. Read Phrasavath’s motion here.