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Austin gay divorce upheld

Gay divorce seekers are one for two in the state of Texas.

Over the objections of state Attorney General Greg Abbott, an Austin appellate court has upheld the divorce of a lesbian couple married in Massachusetts.

When a lower court granted their divorce in February of last year, Abbott’s office filed a petition to intervene in the case. The 3rd Court of Appeals has now declined that request on procedural grounds, leaving the divorce intact. The court found that Abbott lacked standing to appeal because his office wasn’t a party to the case.

This is the second appellate court decision in a same-sex divorce case. In August, a Dallas appeals court made a conflicting ruling: it denied the divorce of two gay men, agreeing with Abbott’s argument that since the Texas Constitution defines marriage as between a man and a woman, the state can’t dissolve a marriage it doesn’t recognize. Gov. Rick Perry has also publicly noted his support of Abbott’s position.

The Statesman addresses some specifics.

A three-judge panel of the Austin-based 3rd Court of Appeals found that Abbott does not have jurisdiction to appeal the case because he did not seek to intervene until after state District Judge Scott Jenkins orally granted the divorce in February 2009. The opinion, written by Justice Diane Henson, noted that only under certain limited circumstances can the state appeal in a lawsuit where it was not a party.

“This case is not a suit to declare a statute unconstitutional or enjoin its enforcement,” Henson wrote, naming some of those circumstances, “but a private divorce proceeding involving issues of property division and child custody.”

Henson, a Democrat, was joined in the opinion by Justice Woodie Jones, a Democrat, and Justice David Puryear, a Republican.

Because the judges did not allow Abbott’s appeal, the opinion did not address his argument that Jenkins lacked the authority to grant the divorce because same-sex marriage is prohibited in Texas. Henson’s opinion, however, did note that there are interpretations of the law that would allow divorce of same-sex couples while upholding a provision of the Texas Family code that prohibits the validation or recognition of gay marriage. Those interpretations, Henson wrote, “would allow the trial court to grant the divorce without finding the statute unconstitutional.”

For example, she wrote, someone could argue that “the trial court is only prohibited from taking actions that create, recognize, or give effect to same-sex marriages on a ‘going forward’ basis, so that the granting of divorce would be permissible.”

Abbott’s lawyers could ask the 3rd Court to reconsider the case or appeal the ruling to the Texas Supreme Court.

In a statement, Abbott spokeswoman Lauren Bean said his office “will weigh all the options to ensure that the will of Texas voters and their representatives is upheld.”

See here and here for more background. I will be shocked if Abbott does not pursue this to the Supreme Court, especially given the other appeals court ruling. I would prefer he didn’t – I hope this ruling stands till the state comes to its senses and grants marriage equality to all -but I don’t expect that to happen, unfortunately. Hair Balls has more.

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  2. […] heard the appeal of the Austin case in December 2010, and upheld the district court ruling in January 2011. That was the last update before now, and as Texpatriate correctly notes, when appeals courts issue […]

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