September 12, 2013
Texas law is pretty clear when it comes to marriage equality: it’s not allowed. The text of the Texas Constitution reads “marriage in this state shall consist only of the union of one man and one woman,” and Texas’s Family Code also explicitly prohibits civil unions. One thing that state law does not explicitly prohibit, however, is same-sex divorce.
Whether that means that same-sex couples can actually obtain divorces in the state remains unclear, although that’s likely to be clarified somewhat soon: the Texas Supreme Court will hear oral arguments on November 5 in two cases concerning the matter, one filed by a gay couple in Dallas and another filed by a lesbian couple in Austin.
In the Austin case, Texas Attorney General Greg Abbott intervened in court to challenge the divorce granted to Angelique Naylor and Sabina Daly in 2010. An appeals court ruled in 2011 that Abbott did not have standing to file his challenge, a decision he has appealed to the state Supreme Court.
In the Dallas case, two men known only as J.B. and H.B. won a ruling from a state district judge in 2009 that the state’s marriage equality ban is unconstitutional. Abbott appealed and won a reversal of the decision from an all-Republican panel of the state’s Fifth Circuit Court of Appeals, whose ruling was appealed to the state high court by J.B.
As Dahlia Lithwick and Sonja West point out in Slate, the state of Texas has backed itself into a somewhat unusual corner:
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.
Texas’s position, essentially, is that allowing a same-sex couple to divorce forces the state to recognize that they were married in the first place, which goes against the state’s public policy and its marriage equality ban. But as the ACLU of Texas and Lambda Legal argued in an amicus brief filed with the state Supreme Court, “The divorce of married same-sex couples furthers the purported public policy of Texas that same-sex couples should not live as ‘married’ in the State.”
Remarkably, Texas is offering the couples a highly unusual way out by proposing they misrepresent their own legal statuses and simply declare their marriages ‘void.’ That would mean the couples could, as Lithwick and West put it, simply check the ‘never married’ box as opposed to the ‘divorced’ box. Of course, that would put Texas in the uncomfortable–and very likely unconstitutional–position of nullifying another state’s laws and public policy (J.B. and H.B. were wed in Massachusetts).
Of course, as the two Slate writers point out, that’s not the only constitutional questions at play:
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.
This is, without a doubt, a very thorny legal situation, and it puts the state of Texas in a bit of a lose-lose position. The state’s proposed solution to the problem is perhaps the worst remedy, since it would force its citizens to lie about their legal status and, in doing so, pretend the commitment they made to each other never existed. But even the other options available to the Texas Supreme Court are complex. After all, if it’s unconstitutional to deny same-sex couples the same right to end legal marriages as different-sex couples, how can it be constitutional to deny them the right to enter into those marriages in the first place?