Delgado v. Araguz: Obergefell’s Past Future

Today the Texas Supreme Court denied the petition for review in Delgado v. Araguz without comment, possibly based on the position that the U.S. Supreme Court’s holding in Obergefell has retroactive effect, but that is not certain.

Nikki Araguz Loyd was born Justin Purdue in California in 1975. As recounted by the Thirteenth Court of Appeals’ opinion, she was diagnosed with “gender identity disorder” at the age of 18 and began feminizing hormone therapy as prescribed by her physician. At 21 she changed her name and then had her California birth certificate amended to reflect her name change. Then she obtained a Kansas drivers’ license which indicated she was female. She then obtained a Texas drivers’ license with the female designation.

In 2008, she and Thomas Trevino Araguz III, a firefighter, obtained a marriage license in Wharton County, Texas and were married on August 23, 2008. Nikki underwent reassignment surgery in October 2008. There was a dispute as to whether Thomas was aware of Nikki’s transition. Nikki and Thomas lived as husband and wife until his death in the line of duty in 2010. After Thomas’ death, his mother filed suit to have his marriage to Nikki declared void on the grounds that Texas law does not recognize a transgender person’s right to marry after gender reassignment. The trial court granted summary judgment in favor of the mother, finding “any purported marriage” between Thomas and Nikki was void.

The Thirteenth Court of Appeals reversed and remanded for further proceedings, citing 2009 amendments to the Family Code which indicated Texas permits post-transition individuals to marry, so long as they marry someone of the opposite sex.

After Obergefell was handed down, the parties filed supplemental briefing. Nikki argued that the ruling in favor of federally-protected same-sex marriage rights applied retroactively and effectively mooted the dispute. Thomas’ mother disagreed, arguing Obergefell was distinguishable because: 1) Obergefell was not retroactive and 2) Obergefell concerned same-sex couples who sought same-sex marriage but in this case, Nikki and Thomas sought opposite-sex marriage.

The Supreme Court did not issue an opinion, so any conclusions drawn from the denial of petition for review would have to be tentative at best. All we can say with certainty is the Thirteenth Court of Appeals’ opinion stands. Thus the question is what the Thirteenth’s opinion stands for. The Thirteenth’s opinion states that it holds:

“[U]nder Texas law a valid marriage could exist between Nikki and Thomas only if Nikki was a woman during their marriage such that there was a marriage between one man and one woman, as set forth in the Texas Constitution.”

In other words, an opposite-sex marriage is valid under Texas law even if one of the spouses is transgender. In 2009, the Texas Family Code was amended to permit transgender individuals to obtain marriage licenses upon presentation of “an original or certified copy of a court order relating to the applicant’s name change or sex change.” Tex. Fam. Code sec. 2.005(b)(8). The term “sex change” was not defined in the statute, as noted by the Thirteenth. There is no dispute that Nikki had male sex organs at the time of her marriage to Thomas. But, the Court said, mere reproductive organs are not the end of the debate and Nikki’s expert testimony regarding Nikki’s transition, not to mention her prior diagnosis and hormonal treatment, was sufficient to raise a fact issue to preclude summary judgment. Accordingly, the trial court’s summary judgment was reversed and remanded for further proceedings. Prospectively, the Thirteenth’s opinion is not of great precedential value, given Obergefell‘s legalization of all marriages between any two people.

Now that the Texas Supreme Court has denied review of the Thirteenth’s holding, the case will return to trial court where it will resume. When it does, there will be the additional issue of whether Obergefell‘s holding is retroactive, as Nikki argues it is under Harper v. Va. Dept. of Taxation, 509 U.S. 86 (1993), citing the general rule that the U.S. Supreme Court’s constitutional decisions are retroactive.

Thus it would appear Nikki can now win in trial court in one of two ways: 1) By establishing Obergefell is retroactive in which case it is moot whether or not Nikki was a male at the time of her marriage to Thomas; or 2) establishing she was female at the time of the ceremonial marriage. In her Reply in the Texas Supreme Court, Nikki argued the Office of the Attorney General has already chosen to recognize Obergefell‘s retroactive effect.

Retroactive effect appears to be one of the major questions to be countenanced in the wake of Obergefell. Hopefully Nikki will not require another favorable U.S. Supreme Court decision to prevail.

On a related note, I cannot recommend highly enough the remarkable profile of Judge Frye in the New York Times (Judge Frye was one of Nikki’s attorneys).


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