Travis County judge finds same-sex marriage ban unconstitutional

AUSTIN, Texas - Judge Guy Herman ruled that the Texas ban on same-sex marriage unconstitutional.

This is the first decision in a case involving an Austin woman seeking to have her eight-year relationship with another woman recognized.

In Texas, marriage is seen as the union of one man and one woman.

As other states change their stance, will Texas be next?

"I sure would hope that's where we're headed," says Brian Thompson, defense attorney.

That comes after a decision Tuesday from Travis County Probate Judge Guy Herman, who ruled that the ban on same-sex marriage is unconstitutional.

This allows a case involving two women to move forward.

Sonemaly Phrasavath and her partner Stella Powell had a marriage ceremony in 2008 but it is not recognized in Texas.

In October of 2013 Powell was diagnosed with colon cancer.

She died in June before a will was executed.

Shortly after, Powell's siblings and Prasaveth met to discuss the terms but could not reach an agreement.

Now prasaveth is fighting for heirship and for her relationship to be recognized.

"This has just been a trying time for her. I mean, all she wants to do is be treated the way that anyone else would be treated who lost their spouse. That is, be allowed to inherit and participate in things like the funeral," says Thompson.

The next step in the case is for judge Herman to determine whether Phrasavath and Powell did in fact meet the legal definition of a common law marriage.

In the meantime, Tuesday's findings could possibly help others in that same position.

"In Travis County it means if you believe you're in a same-sex common law marriage and your spouse dies, that judge Herman is likely to recognize that marriage. In addition, we now have a county court in Travis County saying that the ban on same-sex marriage is unconstitutional. So it may open the floodgates to marriage here in Travis County," says Thompson.

According to the Williams Institute's analysis of the 2010 U.S. Census, more than 46,401 same-sex couples are living in texas.

In Travis County there are 4,483, in Hays County 408 and in Bastrop County 202.

The Travis County Clerk says for now, marriage licenses will have to wait.

"I think all we can do at this point, is ask for advice from the county attorney, which I have done. To take a look at this to see where this places us in light of all these factors. Once we've had the chance to review it, then we can make a final decision. At this time, it looks like this does not give the county clerk any additional authority to grant marriage licenses," says Dana DeBeauvoir, Travis County Clerk.

The news of this finding has many people talking.

The American Civil Liberties Union of Texas sent us this statement:

"This is just the latest in a long line of rulings from state and federal courts all over the country recognizing that these marriage bans deprive LGBT couples of equal protection under the law and stigmatize their relationships as somehow less worthy."

We asked the prosecution for a comment but they declined.

As for the next court hearing, it has not been set yet.