The state’s head in the sand legal strategy

Slate and its invaluable legal writer Dahlia Lithwick take a look at the state of Texas’ determination to ensure that gay married couples stay gay married in Texas.


On Nov. 5 the Supreme Court of Texas will hear arguments regarding whether the men’s constitutional rights are violated by not granting them a divorce. J.B. and H.B.’s case is actually one of two same-sex divorce cases now pending before the Texas Supreme Court. In a second case, the same-sex divorce was granted to a lesbian couple after a state appeals court determined that the state of Texas intervened too late.

These cases have placed Texas’ highest state officials in the ironic—one could even argue rather romantic—position of fighting to keep two gay couples married to one another. Texas Attorney General Greg Abbott intervened in the J.B and H.B. divorce case, taking the position that “because the Constitution and laws of the state of Texas define marriage as the union of one man and one woman, the court correctly ruled that Texas courts do not have authority to grant a same-sex divorce.” Any other ruling, he said in a statement, would allow other states to impose their values on Texas.


These men are, after all, seeking equal treatment under law and access to their court system, which the Supreme Court has declared to be a fundamental right. Without access to the courts, they are unable to divide property and debt, settle child custody matters, clarify rights to Social Security, retirement, and health benefits, or resolve other vital interests. In addition to these practical considerations, there is an emotional interest at stake: A divorce decree brings finality and repose. It provides an opportunity to move on, because without a divorce these men are prohibited from remarrying. As Mary Patricia Byrn and Morgan Holcomb wrote last year in the University of Miami Law Review, denying same-sex couples a divorce implicates the “due process trinity” of the right of access to courts; the right to divorce; and the right to remarry.

Texas counters that J.B. and H.B. are far from trapped in the legal oblivion just described. They have a perfectly valid option: They can ask that their marriage be declared “void.” In other words, the state is willing to declare that their marriage never existed in the first place. Thus while the men wish to check the “divorced” box, the state is offering a chance to check the “never married” box instead. No harm, no foul.

But this is a transparently flawed solution. The fact is that these two men were married. Texas is trying to retroactively declare that a marriage deemed valid in Massachusetts was never real. And while a state’s ability to be hostile and dismissive to the desires of same-sex couples is still under debate throughout this country, a state’s inability to be hostile and dismissive to the legal declarations of other states is a pretty settled matter.

Simply voiding the marriage creates its own problems. The spouses might have had children or accumulated joint property and debt. Extinguishing the marriage from its outset would flush those legal rights down the drain. Children who were born or adopted to such marriages, for example, could find their legal rights vis-à-vis their parents brought into question. A spouse who raised those children while the other worked or went to school, meanwhile, might have no claim to alimony. As one court has put it, retroactively invalidating marriages would “disrupt thousands of actions taken … by same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of … couples and their families, and potentially undermining the ability of citizens to plan their lives.”

But even that isn’t the most worrisome problem. Simply voiding a years-long, state-sanctioned marriage forces the couple to pretend that something as significant in their lives as their legal union never occurred. The state’s “attempt to ‘erase’ their lived history,” the ACLU and Lambda Legal brief argues, “is demeaning and demonstrates nothing more than a desire to express public disapproval of their constitutionally-protected intimate relationship.”

See here for more. Basically, the state is arguing that it has the right to stick its fingers in its ears and say “LA LA LA I CAN’T HEAR YOU!!” when the subject of marriage equality comes up because if it were forced to acknowledge the existence of same sex married couples via its courts granting divorce decrees it might get cooties or something. When your legal strategy is to claim that you should be allowed to pretend that something doesn’t exist, it would seem you are on inherently shaky ground. As with the redistricting argument that it’s okay for them to discriminate against minorities as long as they had partisan motives for doing so, you kind of have to admire the belief that they have a legal right to distort reality to maintain their precious worldview. Greg Abbott is clearly an underappreciated genius for coming up with such innovative logic. I wouldn’t put it past our State Supreme Court to buy what he’s peddling, but I feel pretty confident that the ship will eventually run aground on the shores of the federal courthouse. It can’t happen soon enough.

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One Response to The state’s head in the sand legal strategy

  1. Ross says:

    I’m surprised that Abbot didn’t say that gay couples can always move back to where they were married. it’s getting to be very hard to vote these days. The Democrats keep planks in their platform that I just can’t agree with, while the Republicans keep moving further into bigotry and hatred.

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