Texas Supreme Court hears gay divorce case

Seems like a slam dunk to me, but who knows what our Supreme Court will do.


Two same-sex couples who were legally married in Massachusetts urged the state Supreme Court on Tuesday to allow them to get divorced in Texas.

But a lawyer for Attorney General Greg Abbott said allowing same-sex couples to divorce would violate the state’s ban on gay marriage, which prohibits any official act that would recognize or validate such a union.

“Under the Texas Constitution and the Texas Family Code, all same-sex marriages are void and unenforceable for any reason, including divorce, regardless of where the marriage was created,” deputy attorney general James Blacklock told the court during oral arguments Tuesday morning.

While they cannot divorce, same-sex couples can still legally separate in Texas by asking a judge to declare their marriage void, Blacklock said.

James Scheske, a lawyer for the couples, told the court that voiding a marriage would create a legal fiction because the process declares that the union never legally existed — telling other states, in essence, that the marriage they recognize as legal in fact never legally existed.

In a question echoed by several other members of the court, Justice Don Willett asked how a same-sex union could be dissolved without the court recognizing the marriage as valid, in violation of state law.

The state’s law banning same-sex marriage should not be construed to apply to divorce, Scheske replied.

“Marriage and divorce are separate and opposite from each other,” he said. “None of that has anything to do with divorce. That all relates to marriage.”

If, however, the state’s ban on same-sex marriage is used to deny his clients the right to petition for divorce, then there is a constitutional problem, Scheske said.

“Forcing a targeted group of citizens into a separate and unequal court procedure is never constitutional, and that’s what happens here,” he said.

See here for a recitation of the history. Like I said, the plaintiffs’ argument seems clear and compelling to me. As noted in the Texas Politics report, the state is basically seeking to override the marriage laws elsewhere in the country. That’s not at all the same thing as banning same-sex marriages inside Texas. The Observer goes into more detail.

Abbott’s position is that the only legally valid way for a same-sex couple to end their marriage in Texas is to void it. Unlike a divorce, voiding a marriage nullifies it from its inception—legally, it’s as if the marriage never took place. In Texas, marriages between blood relatives or with a married individual are legally void. Thus, Abbott would have Texas treat same-sex marriage on par with a marriage involving bigamy or incest. The problem with this position is not just that it demeans the relationship (intentionally, no doubt).

Marriage creates rights and obligations with respect to each other’s property and person. Unlike divorce, voiding the marriage does not provide a wholesale remedy for separation, precluding the couple from fully disentangling from each other’s lives and starting anew. For example, while the couple’s marriage may be void in Texas, they could continue to accrue debt and property as a couple in the state in which they married. Perhaps more important than property rights, without divorce individuals may not be able to re-marry. One Texas court explained that to deny divorce is to place the couple “in a prison from which there was no parole.”

Voiding marriages is not unprecedented in Texas. However, as Abbott acknowledges, voiding a marriage does not provide the same “robust protections” as divorce. Abbott would treat divorce as a special right of marriage reserved only for heterosexual couples. And, yet, as much as Texas may wish to close its eyes to same-sex marriage, the marital relationship is still a legal fact. The couple is legally married according to the laws of many states and the federal government, and therefore, subject to numerous legal rights and responsibilities related to marriage.

Though Texas may wish to ignore it, married same-sex couples are entangled in much the same way as other married couples and, thus, the “robust protections” of divorce are a practical necessity in order to adequately dissolve the marriage. Without this, the couples’ lives may remain inextricably bound, creating a multitude of unforeseen problems in the long term—problems that will inevitably require courts and lawyers to resolve.

And I’m sure Greg Abbott’s plan as Governor to deal with that would be to pass laws restricting access to the courts for such people. You know, in the name of limiting “frivolous” lawsuits. This is where a strategy of burying one’s head in the sand tends to lead. Now we just wait for the Supremes to issue their ruling, which will take some number of months. Trail Blazers has more.

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