The Gap
The Obergefell Gap
Why Opinions 539 and 666 no longer cover their subject matter.
The chronological problem
| Date | Event |
|---|---|
| April 2002 | Texas Bar Opinion 539 issued. Uses “spouse.” Same-sex marriage not legal anywhere in the U.S. |
| 2004 | Massachusetts becomes the first U.S. state to legalize same-sex marriage. |
| June 26, 2015 | Obergefell v. Hodges decided by U.S. Supreme Court. Same-sex marriage legal nationwide. |
| December 2016 | Texas Bar Opinion 666 issued. Uses “married.” Post-Obergefell, but identical formal language to its predecessor. |
| 2026 | Both opinions remain unrevised. The “blood or marriage” language in ABA Model Rule 1.7 also remains unrevised. |
What Obergefell changed and what it didn’t change
Obergefell changed: the legal availability of marriage to same-sex couples. Couples who had been functionally married for decades but legally barred from formalizing the relationship suddenly had access.
Obergefell did not change: the choice many couples had already made not to marry. People who had built lives outside the marriage structure — for ideological reasons, financial reasons, simple preference, or because they had never needed to revisit the question — continued to live as they had.
The downstream effect on bar ethics frameworks
Opinions written before Obergefell that used “spouse” language were arguably exhaustive in their period: the only households with the relevant financial-interest pattern were heterosexual married couples. Common-law marriage existed (and exists in Texas) but was infrequent in the legal community. Domestic partnerships had no nationally-recognized legal status.
Post-Obergefell, the “spouse” language was no longer exhaustive even within the heterosexual-marriage frame, and certainly not within the broader couple-formation universe. Two attorney households that look and function as marriages — same address, shared bank accounts, raised children together, decades of cohabitation — now exist in two formal categories:
- Legally married. The “spouse” / “married” trigger fires.
- Not legally married. The trigger does not fire.
The substantive ethics analysis from Opinion 539 (financial interest in the partner’s professional success) does not depend on which formal category a household occupies. The triggering language does.
Why this isn’t an academic problem
Texas, like a majority of U.S. states, recognizes community property. Under community-property law, income earned during a marriage becomes marital property. Two unmarried cohabiting partners do not have community property by operation of law — but they often have functionally identical financial entanglement through:
- Joint bank accounts and credit lines
- Joint home ownership or shared mortgage
- Pooled household income and expenses
- Joint tax planning (separate returns, but coordinated)
- Estate-planning documents naming each other (powers of attorney, beneficiary designations, healthcare proxies)
- Shared retirement and investment accounts
- Children with shared custody or co-parenting arrangements
- Texas common-law marriage doctrine, which a couple may meet without ever filing for it
Under the substance of Opinion 539, any of these create the same financial-interest condition the opinion identifies. Under the letter of Opinion 539 and Opinion 666, none of them trigger formal review.
This is a structural gap, not a marginal one. It exists in every state whose ethics rules use blood-or-marriage language (which is essentially all of them; see national scope).
Whether the gap is exploitable
The gap cannot be created from outside. A couple already married cannot un-marry in order to escape the rule (and the financial cost of doing so would defeat the purpose). The gap can only be occupied by couples who were already unmarried at the moment one of them took a position the rule would otherwise scrutinize.
Two readings of any specific instance:
- Inadvertent. The couple’s pre-existing arrangement happens to fall in the gap. They never thought about the ethics rules; the bar never approached them; the formal mechanism simply never kicked in.
- Strategic. The couple, aware of the rule and aware of their position, declined to formalize a relationship they would otherwise have formalized — specifically to keep the formal mechanism dormant.
The gap is documentable in either reading. The remedy is the same in either case: the rule needs to be updated.
Open questions
- Has any state bar — anywhere in the U.S. — issued a formal opinion or rule revision that explicitly extends “blood or marriage” coverage to domestic partners? Resolution: 50-state survey of state-bar ethics-opinion archives 2015–2026.
- In Texas, has the common-law marriage doctrine (Texas Family Code § 2.401) ever been invoked by a grievance committee to bring an unmarried-partner attorney pair within the formal trigger of Opinion 539 or 666? Resolution: Texas Office of Chief Disciplinary Counsel records.
- Have bar association continuing-legal-education programs addressed the post-Obergefell gap? Resolution: Texas State Bar CLE archive search.