Untitled Texas Attorney General Opinion, GA-1003

Request from Texas State Senator Dan Patrick asking whether Tex. Const. art. I, § 32(b) bars cities, counties, and school districts from recognizing "domestic partnerships" by granting benefits formerly reserved for married couples.
Article I, § 32(b) prohibits the state or any political subdivision from creating or recognizing a legal status "identical or similar to marriage."
The political subdivisions at issue (cities, counties, independent school districts) are undisputedly political subdivisions under Texas law.
No Texas statute creates or recognizes the type of "domestic partnership" programs at issue; the programs are created by the political subdivisions themselves and require an affidavit and supporting documentation to obtain recognition and benefits.
The local programs impose eligibility criteria that mirror marriage-related criteria (e.g., absence of existing undissolved marriage, consanguinity, age), and benefits are conditioned on satisfying those criteria.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does art. I, § 32(b) apply to cities, counties, and school districts?	§32(b) does not limit such entities; they are political subdivisions	Political subdivisions are covered by the plain text of the Constitution	Held: Yes; political subdivisions are subject to §32(b)
Have the subdivisions "created or recognized a legal status" by establishing domestic partnership programs?	Providing benefits alone does not create a legal status	Programs establish formal criteria, affidavit process, and documentation—i.e., they create/recognize a legal status	Held: Yes; the subdivisions have created and recognized a legal status
Is the domestic partnership status "identical or similar to marriage"?	These programs are distinguishable from marriage; intent was to permit benefit provision	Programs use marriage-like criteria and thus resemble marriage in characteristics	Held: Yes; the legal status is similar to marriage and therefore barred by §32(b)
Would mere provision of benefits (without formal recognition) violate §32(b)?	Provision of health benefits alone should be permissible	Not decided here because subdivisions went beyond mere benefits by creating a status	Held: Not necessary to decide; opinion rests on the creation/recognition of status beyond mere benefits

In re Allcat Claims Serv., L.P., 356 S.W.3d 455 (Tex. 2011) (interpretation of constitutional text relies on plain language)
City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008) (avoid extrinsic aids when constitutional language is clear and unambiguous)
Ross v. Goldstein, 203 S.W.3d 508 (Tex. App.—Houston [14th Dist.] 2006) (art. I, § 32(b) is unambiguous; courts may not create marriage-like remedies precluded by the Constitution)
Prudholm v. State, 333 S.W.3d 590 (Tex. Crim. App. 2011) (definition of "similar" as having likeness or shared characteristics)
Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742 (Tex. 2012) (use of Black's Law Dictionary to ascertain common meaning of terms)