That sound you hear is a big can of worms being opened.
The Texas Supreme Court announced Friday that it will determine whether same-sex couples, legally married in other states, can be granted a divorce in Texas.
The cases, involving couples from Austin and Dallas, will be the first test of Texas’ ban on same-sex marriage since the U.S. Supreme Court determined this summer that marriage laws can be unconstitutional if they relegate legally married same-sex couples to second-class status.
Oral argument will be Nov. 5, and a ruling isn’t expected for months afterward.
Attorney General Greg Abbott argues that Texas law not only limits marriage to opposite-sex couples, it forbids any action — including divorce — that recognizes or validates a same-sex marriage obtained out of state.
Lawyers for the couples, two Austin women and two Dallas men who were married in Massachusetts, say Abbott lacks the authority to intervene in their lives because divorce is a private matter that does not obligate Texas to recognize same-sex marriages performed in another state.
But if Texas can deny same-sex couples the right to divorce, then the state’s ban on gay marriage should be overturned, the couples argue.
Here’s the history, for those of you who tuned in late. In October 2009, a Dallas district court judge ruled that it “has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction”, which in this case includes same-sex couples. AG Greg Abbott subsequently intervened in that case, and in a February 2010 case in which a Travis County district court judge granted a divorce to a same-sex couple. The Fifth District Court of Appeals heard the appeal in the Dallas case in April 2010, and the court overturned the district court ruling in September 2010. The Third Court of Appeals 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 contradictory rulings, that’s when it’s up to the Supreme Court to step in and sort it all out.
- Holding that Texas’s laws denies divorce proceedings and are consistent with the Constitution. This will reverse the judgment of the Texas 3rd Coa, and affirm the judgment of the Texas 5th CoA. Naylor, Daly, and J.B. will have the option to seek certiorari with the U.S. Supreme Court. If they fail to do so, or the Supreme Court denies cert, the divorce petitions will be denied as soon as the family courts resume jurisdiction, and marriage equality claims will be barred in Texas state courts as a matter of precedent.
- Holding that Texas lacked jurisdiction to appeal the divorce cases. The Texas 5th CoA ruling will be vacated, and the Texas 3rd CoA ruling will be affirmed. The divorce decrees will be issued as soon as the family courts resume jurisdiction. This will only set precedent as to the state’s standing to intervene and appeal divorce decrees. It will not settle the issue of whether Texas family courts may entertain divorce petitions from same-sex couples.
- Holding that Texas law allows same-sex divorce. This will affirm the judgment (though not the reasoning) of the Texas 3rd CoA, and reverse the judgment of the Texas 5th CoA. Because no federal question would be answered, there will be no opportunity for United states Supreme Court review. The divorce decrees will be issued as soon as the family courts resume jurisdiction, and, as a matter of binding judicial precedent, Texas family courts will have jurisdiction to hear divorce suits brought by same-sex couples.
- Holding that Texas’s laws that denies divorce proceedings violate the 14th Amendment. This will affirm the judgment (though not the reasoning) of the Texas 3rd CoA, and reverse the judgment of the Texas 5th CoA. It is almost certain the state will seek certiorari with the United States Supreme Court. If the Supreme Court denies cert, then the divorce decrees will be issued as soon as the family courts resume jurisdiction, and more significantly, marriage equality will exist as binding juidicial precedent upon all Texas state courts and state and local executive officials.
What happens after that is anyone’s guess. And while you’re pondering that, remember that there’s also a transgender divorce case out there waiting for some clarity, too.