Texas doesn’t recognize same-sex marriage, but can it allow gay couples to get divorced? That’s the question facing the state’s supreme court in a legal fight that, ironically, could help the marriage equality cause.
The couples involved, H.B. and J.B. of Dallas and Angelique Naylor and Sabrina Daly of Austin were both married in Massachusetts. H.B. and J.B. are now seeking a divorce that the lower courts refused to grant because they believed they didn’t have the power to do so, while Naylor and Daly were granted a divorce by a trial court judge.
In the latter case, Texas Attorney General Greg Abbott appealed the decision. He argues that as Texas does not recognize same-sex marriage, there is no marriage to dissolve and therefore no divorce can be granted. Abott wants the marriages to be voided or, in other words, declared invalid from the start.
However, the Texas Supreme Court appeared leery of that during Tuesday’s hearing. While the nine justices agreed that the question of whether Texas’ gay marriage ban is legal may be linked to whether the state can allow a same-sex divorce, voiding those marriages carries wide ranging legal questions.
That’s because this case goes beyond the 2005 amendment to the Texas constitution that codified a ban on same-sex marriage within the state to directly tackle the question of whether Texas has the authority to deny the legal recognition that was conferred by Massachusetts. Voiding the marriages would mean directly encroaching on Massachusetts’ power to recognize marriages as it sees fit, something that no state would do lightly. This issue is further complicated by the fact that the federal government does now recognize the couples’ marriages as valid even though the state does not.
The couples’ lawyers argue that the supreme court must either grant the couples a divorce or rule that the state’s gay marriage ban is unconstitutional.
They argue that the constitutional ban Texas is using says nothing about divorce and that the particular framework for divorce actually falls under separate sections of Texas family law. As such, they argue, divorces can be granted on that basis without necessarily recognizing same-sex marriage within the state.
Justice Phil Johnson disagreed with that contention, saying that the state must recognize a marriage before it can grant a divorce. Similarly, Justice Don Willet is quoted as saying, “Don’t you have to presume there is a legal marriage [to grant a divorce]?”
The couple’s lawyers shot back that the state only has to recognize the legitimacy of the fact that the couples were married under Massachusetts law.
The all Republican court also seemed interested as to whether Texas’ gay marriage ban was “driven by irrational animus” against gay and lesbian people. This is of course in reference to the U.S. Supreme Court ruling in Windsor v. United States that was handed down in June of this year. That ruling overturned Section 3 of the federal Defense of Marriage Act on the grounds that it directly sought to treat gay couples unequally and was only driven by the moral disapproval of Congress.
When it came to the Attorney General’s arguments, Justice Phil Johnson was particularly critical of the notion of “voiding” the marriages, noting that as a matter of course, states often recognize out-of-state marriages that the jurisdiction itself does not allow, for instance when it comes to legal marrying ages and marriages between cousins.
The court isn’t expected to issue a ruling for several months yet, but the case suggests a profile that could carry an important ruling in terms of access to same-sex marriage rights. At the very least, a right to same-sex divorce appears to be in the cards. A slightly more ambitious ruling could see Texas’ ban on same-sex marriage undermined with the state’s supreme court deciding that the state cannot legitimately refuse to recognize same-sex marriages from out of state.
A ruling overturning the state’s gay marriage ban in its entirety appears unlikely but it is easy to see how these cases would appear to erode Texas’, until now, staunch refusal to recognize marriage equality. The fact that it may happen as a result of the state attempting to deny the couples in this case the right to divorce is rather funny but serves to show just how precarious the nation’s same-sex marriage bans now appear.
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