by Mike Andrew -
SGN Staff Writer
The Texas Supreme Court will decide in November whether a Gay couple can apply for a divorce in the state. Oral arguments are scheduled for November 5.
When the couple, identified in court papers only as 'JB' and 'HB,' first filed for divorce in 2009, a family court judge granted their petition. In that ruling, the judge held that Texas' Proposition 2, which barred courts from recognizing same-sex marriages, violated constitutional equal protection and due process protections.
In 2010, however, a three-judge panel of the state appeals court reversed the lower court's ruling, on the grounds that same-sex marriages are not recognized in Texas, and therefore there was no marriage to dissolve.
The appeals court ruled that under a 2005 amendment to the state constitution, courts have no jurisdiction to grant divorces to Gay or Lesbian couples. Granting such a divorce, the appeals court said, would require the state to acknowledge that the couple had been married in the first place.
The couple were married in Massachusetts, where Gay partners can be both married and divorced under state law. However, they now live in Texas, and since divorces must be filed in the couple's state of residence, they cannot simply go back to Massachusetts to file.
The case of JB and HB is the second of two same-sex divorce cases now pending before the Texas Supreme Court. In an earlier case, a divorce was granted to a Lesbian couple after the state appeals court determined that state officials intervened too late.
A QUESTION OF VALUES?
Texas Attorney General Greg Abbott personally intervened in the JB and HB 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.
In an amicus brief filed in the JB and HB case, a Republican state legislator contends that 'this lawsuit demonstrates that opponents of traditional marriage want to exclude the people of Texas from the legislative process - and then they want to exclude the legal representative of the people of Texas, the Attorney General of Texas, from the judicial process.'
For his part, JB contends that he is not asking Texas to issue a same-sex marriage license or to afford any Gay or Lesbian couple any of the benefits of being married in Texas. Marriage and divorce are legally distinct, he claims, and nothing in the text or intention of the Texas ban on same-sex marriages is violated by allowing him to divorce his husband.
Daniel Williams of the statewide LGBT rights group Equality Texas said that 'granting a divorce is not creating a marriage. In fact the law is very clear: the ability to get a divorce is a benefit of living in Texas, not a benefit of marriage.'
STATE LAWS VARY
More than 30 states ban same-sex marriage by constitutional amendment or statute, but the legal status of same-sex divorces varies widely. Georgia, for example, explicitly bars same-sex divorce, but Texas and most of the others merely prohibit same-sex marriage.
So JB and HB may well represent a new front in the same-sex marriage wars - what to do about states declining to grant divorces to legally married couples?
According to the brief filed by JB, 'over 28 percent of the U.S. population lives in a jurisdiction where same-sex marriage is permitted.' He added that 'Texas is one of the fastest growing states - attracting thousands of migrants each year, including couples from those states that permit same-sex marriage.' Sooner or later, he said, Texas will have to deal with the problem.
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