Texas Says “No” to Gay Divorce

Texas Supreme Court (Photo credit: Wikipedia)

The 5th Texas Court of Appeals ruled that a Dallas district court judge didn’t have the authority to hear a divorce case brought by two Dallas men – who were legally married in Massachusetts in 2006. Same-sex marriage is banned in Texas.

Texas Attorney General Greg Abbott, a Republican, appealed after District Judge Tena Callahan, a Democrat, said she did have jurisdiction and dismissed the state’s attempt to intervene. The ruling upheld the state’s stance on the definition of marriage, the Attorney General’s office said.

“Today’s court of appeals decision overruled the district court’s improper ruling [and] confirmed the constitutionality of Texas’ traditional definition of marriage and correctly found that Texas courts lack the legal authority to grant divorces to same-sex couples,” Abbott spokesman Jerry Strickland said in a statement.

Judge Callahan also had ruled Texas couldn’t limit marriage to a man and a woman, pushing the limits of the state’s official “one man and one woman” doctrine, but the appeals court said the state’s same-sex marriage ban was constitutional after all. Abbot’s Republican colleagues aligned with the decision.

“A person does not – and cannot –  seek a divorce without simultaneously asserting the existence and validity of a lawful marriage,” wrote Justice Kerry P. Fitzgerald on behalf of three other Republican state appeals court justices. “Texas law, as embodied in our constitution and statutes, requires that a valid marriage must be a union of one man and one woman, and only when a union comprises one man and one woman can there be a divorce under Texas law, Judge Fitzgerald asserted.

The appeals court ordered the case be sent back to Judge Callahan in Dallas, who must vacate her order.

The men, known only as “J.B.” and “H.B.” in court filings, separated amicably two years after getting married. “J.B.’s” attorney, Peter Schulte, argued that the two men didn’t have children and they weren’t arguing over how to divide their property, but nonetheless wanted an official divorce. Schulte said  they had not yet decided whether to appeal to the Texas Supreme Court.

“We obviously disagree with the justices’ ruling, but we respect the process and respect the court,” he said.

Attorney General Abbott’s office had argued before the three-judge appeals court back in April that the couple “was not eligible for a divorce in Texas” because the state didn’t recognize their marriage.  Another lawyer for J.B., Jody Scheske, argued his client was entitled to a divorce because he had a “valid marriage.” The state of Massachusetts recognized the union, so it was legal, he claimed.

The appeals court agreed with Attorney General Abbott that such unions could be indeed be dissolved by having the marriage declared “void.”

Among the reasons “J.B.” argued for a divorce rather than a voidance, his attorneys said, was that spousal support and community property laws only apply in divorce cases. The appeals court said those issues are “policy arguments” that must be addressed by the Texas State Legislature.

“It’s deeply disappointing to see courts deny same-sex couples equal treatment under the law,” Jennifer Pizer, a lawyer for Lambda Legal, an organization that promotes equal rights for gay, lesbian, bisexual and transgender people, told the Huffington Post.

In 2005, Texas voters passed a constitutional amendment to ban same-sex marriage by a 3-to-1 margin – even though state law already prohibited it. Kelly Shackelford, president of the conservative Plano, Tex. based Liberty Institute, said this week’s ruling “strikes down an activist judge’s attempt to take the law into her own hands.”

Attorney General Abbot’s office also appealed a gay divorce case in the state capital of Austin after a judge there granted a divorce earlier in 2013 to two women who, coincidentally were also married in Massachusetts in 2004. But the Austin appeals court has not yet heard arguments in that case.