Off the Kuff Rotating Header Image

divorce

Making divorce harder

I have no idea why anyone would want to do this, but here we are.

Conservative Republican Rep. Matt Krause, R-Fort Worth, said he wants to strengthen families and reinforce the sanctity of marriage by eliminating no-fault divorces, which now allow couples to split amicably with neither legally alleging blame.

“I don’t know if we don’t take our vows as seriously as we used to, but I think getting rid of the no-fault divorce piece of this may make folks concentrate on this a little harder before they enter into that relationship, or stick it out to where they can restore that relationship and the tough times in marriage,” he said.

Krause, who has been married for 14 years, said he wants modern culture to better value the importance of family to ensure a healthy society, and said stable families will result in better outcomes for children.

Under a bill he plans to push in the 2017 legislative session, the state would strike “insupportability” as grounds for divorce. A couple who wants to dissolve their marriage peacefully will have to live separately for three years before filing for divorce. Those opposed to waiting would have to accuse their partners of cruelty or adultery, or allege their partner abandoned them after a year living apart. Other grounds include conviction of a felony or confinement in a mental hospital.

“That’s a terrible idea,” [Cindy Diggs, of Holmes Diggs Eames & Sadler, a Houston law firm that concentrates on divorce and family law,] said.

Doing away with no-fault divorces will enrich divorce lawyers because clients will pay more in fees to come up with reasons to legally justify splitting from their spouse, she said.

“He’s forcing the fight,” she said of Krause’s bill. “Even as a divorce lawyer, I don’t think that’s right. I think you should make divorce easier for those who want it because those who want it are still going to go and file and get it. It’s just going to cost them more and cause their families and their children more strife.”

[…]

Krause proposed the bill in the 2015 legislative session, supported by pastors and Concerned Women for America, a national conservative advocacy group that seeks to weave biblical principals into public policy, both of which argue children in single-parent households are more likely to struggle than their peers.

The bill won a narrow 4-3 bipartisan approval in a legislative committee but failed to reach the floor.

“We are not a church, we are a government,” said Rep. Debbie Riddle, R-Tomball, during a hearing days before voting against the bill. “When people get married, they get married. They’re adults. … That is really getting in the middle and I’m not so sure it fixes things. I think, if anything, it makes things worse.”

Krause rejects the suggestion that forcing couples to wait out a divorce infringes on their personal freedom.

“They still have every right, whether they’re going to get into that union or not,” Krause said. “But once they do, I don’t think it’s bad for the state to say, ‘Hey, if you’re doing this and you’re entering into this union, let’s make sure you’re very serious about it, knowing the societal benefits that can happen when there’s a happy married couple and knowing the societal concern that we see as a consequence when there’s a proliferation of divorces.”

The bill in question from 2015 was HB454, which did get voted out of committee but never got a vote on the House floor. As the story notes, the divorce rate has been falling nationally and in Texas, so this strikes me as yet another solution in search of a problem. It’s also another mockery of the alleged ideal of “small government”, but that ship sailed a long time ago. I don’t think this bill will get any more traction this session, but you never know. If it does, I bet we see a big spike in the number of divorce filings between the day it passes and the day it goes into effect. I mean hey, if you were headed that direction anyway, may as well get there before the price goes up, right?

Divorce granted to same sex couple in Tarrant County

At some point, stories like this will cease to be news.

Divorce

It took two Tarrant County women nearly two years to legally end their failed marriage because of the tangle of state and federal law.

But on Thursday, Brooke Powell and Cori Jo Long were finally divorced after a five-minute hearing before state District Judge William Harris.

Court officials said they believe it is the first same-sex divorce in Tarrant County and one of the few in Texas.

“It’s been a roller coaster,” Long said after her courtroom appearance. “Honestly, I didn’t think it would happen.”

The U.S. Supreme Court’s ruling June 26 that the Constitution guarantees a right to same-sex marriage is what prodded Tarrant County judges to grant the divorce.

But don’t expect the first divorce to open the floodgates, legal experts say. Although the Supreme Court’s decision led to a rush of same-sex weddings, that won’t happen with divorces. They are not as simple as reprinting the marriage license form.

Powell and Long married in New Hampshire in 2010. Four years later, one woman filed for divorce while the other asked Texas to act as though the marriage never took place.

But Harris closed off both options, and the women appealed their case to the 2nd Court of Appeals in Fort Worth.

“It was a feeling, initially, of being invisible,” Powell said. “There was no resolution. But I always had faith in the legal system that this day would come.”

Citing the Supreme Court ruling, the appeals court sent the case back to Harris. This time, he granted a divorce.

There was also a Texas Supreme Court ruling, which preceded the SCOTUS ruling, in a case about a same-sex couple in Travis County. As such, this case was pretty clear cut. However, as the story notes, there was no property to divide, and there were no children in the marriage so no custody issues to settle. Will the courts be able to apply existing law in an equitable manner for future same-sex divorce cases, or will it become clear that the Legislature will need to address this? I don’t know about you, but I don’t have a whole lot of faith in the latter, so we’ll have to see how it goes when such a case does appear. The simple dissolution of a marriage, at least, is something that can be done.

Texas Supreme Court rules against AG in Austin gay divorce case

One small step, even if it was on a technicality.

Divorce

As Texas waits on the U.S. Supreme Court to rule on same-sex marriage, the state’s highest civil court ruled Friday that the Texas attorney general tried too late to stop the divorce of a Texas couple married in Massachusetts.

Five members of the Texas Supreme Court affirmed a 2011 opinion from the Austin-based 3rd Court of Appeals that said the attorney general’s office did not have standing to appeal the divorce between Texas residents Angelique Naylor and Sabina Daly.

“We agree with the court of appeals that the state lacks standing to appeal the trial court’s decree,” wrote Justice Jeff Brown for the majority. He was joined by Chief Justice Nathan Hecht and Justices Paul Green, Phil Johnson and Jeff Boyd.

Daly and Naylor married in Massachusetts in 2004. A few years later, Naylor filed for divorce and Texas District Judge Scott Jenkins of Travis County approved it.

In the opinion delivered Friday, Brown emphasized that the court’s decision was confined to whether or not the attorney general’s office’s attempt to intervene was timely.

“This Court has consistently recognized the State’s right to defend Texas law from constitutional challenge,” Brown wrote. “However, as the court of appeals explained, the State did not timely intervene in this dispute and therefore is not a party of record.”

[…]

Republican Gov. Greg Abbott, who formerly served as the state’s attorney general, called the court’s decision “disappointing and legally incorrect.” Abbott, also a former Texas Supreme Court justice, said the court “mistakenly relied on a technicality” in its ruling and failed to address the state’s constitutional definition of marriage.

“The state and all political subdivisions in Texas remain prohibited by the Texas Constitution from giving effect to a same-sex marriage or any document recognizing one — including the divorce decree in this case,” Abbott said in a statement.

See here, here, here, here, and here for the background. A copy of the decision is here, and the two different dissents are here and here. There was a similar case in Dallas where the appeals court overturned the lower court decision allowing the divorce to proceed. As the Statesman notes, that case eventually became moot when one of the people involved died. More recently, there was a case in Bexar County in which the judge told then-AG Abbott to butt out. I don’t know where that one stands at this time. All of this may well be moot in a couple of week’s time, assuming the US Supreme Court doesn’t throw us all a curve. In the meantime, it’s always a pleasure to see Greg Abbott strike out. Trail Blazers and RG Ratcliffe have more.

No one is going to be forced to perform a same sex wedding

Would someone please reassure Dan Patrick of this before he wets himself?

RedEquality

Sen. Craig Estes, R-Wichita Falls, said he sponsored Senate Bill 2065 at the urging of Lt. Gov. Dan Patrick. The Senate suspended its rules to allow the bill to be introduced on Tuesday, weeks past the session’s filing deadlines.

The legislation would allow a religious organization or affiliated individual, such as a member of the clergy or officiant, to refuse to preside over any marriage “if the action would cause the organization or individual to violate a sincerely held religious belief.” It also would allow them to refuse to provide “services, accommodations, facilities, goods, or privileges” toward the “solemnization, formation, or celebration” of any such marriage.

“I don’t think it would be advisable to compel men or women of the cloth to do marriages that violated their closely held religious beliefs,” said Estes. “There’s a companion bill in the House, and we filed the Senate bill at the request of the lieutenant governor.”

Chuck Smith, head of the gay rights group Equality Texas, said the bill is more wide-reaching than it may appear on first reading. Because it is not restricted to officiants acting in their official capacities, Smith said, the bill would allow anyone who is ordained to discriminate against anyone at any time.

The bill is also needless, Smith added, if its purpose is to allow officiants to refuse to marry certain couples since that right already exists.

“We respect the religious freedom of clergy to determine who to marry,” said Smith. “That right is already constitutionally protected. So, in some respects, that statute is unnecessary.”

My maternal grandmother was widowed at a young age, in the early 1960s. A decade or so later, she remarried. Her new husband, my step-grandfather, had been divorced, and since his first marriage had not been annulled, they could not be married in the Catholic Church, since the Church did not recognize divorce. They had a civil marriage, and though she continued to be a regular churchgoer, she never again received Communion, since she was in a state of sin for her non-church wedding.

I bring this up to make the obvious point (as Justice Kagan did for her deliberately-being-obtuse colleague, Justice Scalia) that it has always been the case that churches and clergy have always been able to refuse to officiate at a wedding for couples that do not meet the requirements of their faith. That remains true today – divorce is still not recognized by the Catholic Church, and divorced people cannot be married in the Church without going through Church-mandated hoops, despite the fact that divorce has been legal in America for decades, if not centuries. We also now have the experience of thousands of same-sex weddings that have been performed in the country, going back ten years in the case of Massachusetts. I for one am not aware of any priest, minister, rabbi, imam, or whatever being forced to officiate at one against his or her will. Given all the publicity that every rogue baker and florist has received in the 37 states where same sex marriage is allowed, I feel confident we’d have heard of such a person if one existed.

So it should be clear that this bill is at best completely superfluous, and at worst an unconstitutional attempt to extend this right that religions and their clergy have beyond what is accepted today. So why do this – in particular, why go out of the way to do this when so much other legislation is struggling for time? A matter of values, I suppose, and a good reminder that not all values are virtuous. I just hope the state doesn’t wind up wasting too much of our tax dollars fighting unsuccessfully to salvage this in court down the line.

UPDATE: Debate on this bill has been delayed, most likely until Monday.

Judge prevents state from intervening in same sex divorce case

Back off, Greg Abbott.

RedEquality

A San Antonio judge Wednesday denied a bid from the state of Texas to stop divorce and child-custody proceedings between a same-sex couple.

State District Judge Barbara Nellermoe also set a custody hearing for May 29 in which Kristi Lesh and Allison Flood Lesh will fight over custody of their nearly 15-month-old daughter. The two women were legally married in Washington in 2010.

Nellermoe previously had ruled that Texas’ restrictions on same-sex marriage are unconstitutional, and her latest ruling prevented the state from intervening as a party in the women’s court battle.

“It’s a huge victory,” said attorney Deanna Whitley, who with Judith K. Wemmert, represents Flood Lesh. “She knocked the state of Texas out of the lawsuit.”

The lawyers said they are hoping to quickly reunite Flood Lesh with her daughter, who she hasn’t seen since Nov. 3.

Among the arguments by Texas Attorney General Greg Abbott’s office was that Nellermoe had no jurisdiction, and that the state should be allowed into the suit because it has an interest in defending the state’s ban on gay marriage.

[…]

In the state case, Abbott’s office has also argued that Nellermoe went beyond her rights as a district judge in declaring that sections of the Texas Family Code and state constitution violated the 14th Amendment’s equal protection clause.

His office in late April obtained a temporary halt to Nellermoe’s prior decision, but Wednesday’s ruling kicks the state out of the lawsuit and allows the custody proceedings to go ahead — barring any other order from a higher court that’s also taking up similar cases, lawyers for both women said.

“As we stand here today, same-sex marriage is not recognized and those issues are on appeal,” Efron said. “What they’re trying to do is create a whole new category of standing of who can initiate a custody case. … We shouldn’t be there (in a custody hearing).”

Nellermoe’s rulings could “open up a floodgate” of gay divorce and custody battles in Bexar County and elsewhere, Efron said.

See here for the background. If this does “open up a floodgate” of such battles, it’s unfortunate for the couples that are no longer together and their children, but it’s infinitely better for them to have access to the legal process to settle disputes and divide property and determine custody and visitation for the kids. We’ll see if this order gets halted on appeals as well.

State court rules gay marriage ban is unconstitutional

That’s two rulings in Texas, with this one referencing the federal ruling from February.

RedEquality

In a move that follows suit with a federal ruling issued in February, a state district judge has deemed Texas’ restrictions on same-sex marriage unconstitutional – paving the way for a San Antonio couple’s divorce proceedings and subsequent child custody battle to continue.

Judge Barbara Nellermoe, in a five-page ruling released Tuesday, pinpointed three portions of the Texas Family Code as unconstitutional, as well as Section 32 of the Texas Constitution.

Nellermoe wrote that “in a well-reasoned opinion by Judge Orlando Garcia, the federal district court found that a state cannot do what the federal government cannot – that is, it cannot discriminate against same-sex couples.”

The latest ruling comes in response to a same-sex divorce lawsuit that was filed in Bexar County in February by Allison Leona Flood Lesh and Kristi Lyn Lesh, who were married in Washington, D.C., in August 2010.

[…]

What is remarkable about the ruling is its finding that failing to “afford the same presumption of parenthood to the wife of a child’s birth mother as it does to a husband of the birth mother” is unconstitutional, said lawyer Emily Hecht-McGowan, director of public policy at the Family Equality Council.

The organization, based in Washington, D.C., advocates for LGBT families throughout the nation.

A child born in a straight marriage or a legal same-sex marriage is considered a child to both parents, which is known as parental presumption, Hecht-McGowan said. But in cases such as this involving a couple in a state that does not recognize same-sex marriage, the child was only considered legally the child of the birth mother.

But in Nellermoe’s ruling, the judge wrote that such a practice violated the Equal Protection Clause.

“By denying their parents the right to marry, Texas has created a suspect classification of children who are denied equal protection of the law under the Fourteenth Amendment,” Nellermoe wrote.

See here for the background on this case, which was filed shortly before Judge Garcia’s ruling that declared Texas’ Double Secret Illegal Anti-Gay Marriage constitutional amendment to be unconstitutional. As we know, the State Supreme Court heard appeals in two other same sex divorce cases last November, but no one knows when they’ll get around to ruling on it. Judge Nellermoe’s ruling seems pretty straightforward to me, but I’m sure it will be appealed. Sure enough, just as Greg Abbott inserted himself into the other cases, so has he done in this one.

Late Wednesday the State Attorney General’s Office filed what’s called a Plea in intervention with this case. It says, “The state of Texas seeks the opportunity to defend its laws and statutes before this court.”

Via Lone Star Q, which notes there’s a lot of other legal activity out there as well. And late yesterday, the Fourth Court of Appeals halted the divorce proceedings for now.

Attorney General Greg Abbott responding by asking the appeals court to grant an emergency stay delaying Nellermoe’s ruling, arguing that speedy action was needed “to avoid the legal chaos that would follow if the trial court’s broadly worded ruling is mistakenly interpreted as authorization for the creation or recognition of same-sex marriages in Bexar County or throughout the state.”

The San Antonio appeals court agreed Thursday afternoon, staying Nellermoe’s ruling while it considers Abbott’s request to vacate the decision as a violation of the district judge’s authority.

The appeals court also set a May 5 deadline to receive briefs in the case.

Nothing ever comes easy, does it? Be that as it may, I have seen basically no reaction to this, at least so far. Equality Texas posted a link to the story on Facebook, which has been widely shared, as well as the link to that Statesman story, but as of publication I have not seen a statement or press release from anyone. I have no idea if the usual nattering nabobs of negativism have reacted to this ruling, either – I didn’t want to get slime all over my nice clothes, so I didn’t go looking – but I’m sure we’ll hear from them as well as from the good guys.

Another same sex divorce case

In Bexar County. And with it comes another opportunity for Greg Abbott to demonstrate his commitment to non-equality.

RedEquality

The Bexar divorce case was filed Feb. 18, eight days before U.S. District Judge Orlando Garcia ruled that the state’s ban on same-sex unions and its refusal to recognize out-of-state marriages are unconstitutional. The judge stayed his ruling, though, so the ban remains in effect until a higher court rules on the matter.

The women in the Bexar case, Allison Leona Flood Lesh and Kristi Lyn Lesh, were married on Aug. 13, 2010, in Washington. Their names appear on a copy of their marriage license, which was recorded last fall in Bexar County.

Their divorce has the makings of being a messy split because a child, identified only as K.A.F.L., was born during the marriage in San Antonio. Flood wants to share custody of the nearly 13-month-old girl, but Lesh claims in a court filing that Flood isn’t the child’s biological or adoptive parent.

“This illustrates what Judge Garcia identified as (what) same-sex couples are deprived of,” said Neel Lane, one of the San Antonio lawyers for the gay couples who sued the state over the same-sex marriage ban. “First, they are deprived of the benefits of an orderly dissolution of a marriage. Second, their children are denied the benefit of the many laws to protect their interests in the event of a divorce.”

Those benefits include child support and shared custody, Lane said.

[…]

A spokeswoman for the Texas attorney general’s office, which opposes gay marriage and divorce, declined to comment on the Bexar case. Instead, she provided the office’s legal brief submitted in the Supreme Court case.

“Marriage in Texas can only be between a man and a woman, and courts may not give effect to any legal claim asserted as a result of an out-of-state same-sex marriage,” the document states. A same-sex couple can sue to have the marriage “declared void,” though.

The state’s highest civil court took up the matter after different rulings in lower appellate courts. They involved two couples who were married in Massachusetts and later moved to Texas.

The particulars of this case aren’t important. The point is that same sex marriages are taking place all over the country, and some of these couples live in Texas. Until such time as Texas’ anti-same sex marriage law is invalidated, the state is going to have to deal with issues like these. Sticking our collective head in the sand and slow-walking the process does no one any good. The courts, in Washington and here in Texas, will eventually sort all this out. In the meantime, real people who were legally married are being needlessly harmed. We should face up to reality sooner rather than later.

A brief history of gay marriage legislation in Texas

From TM Daily Post.

RedEquality

Gay marriage supporters have made massive strides in a very short amount of time. Less than ten years ago, gay couples couldn’t get married anywhere in the United States. While the progress they did achieve shortly thereafter involved victories, they were handed down by judges—rather than their fellow voters—and the term “marriage” still didn’t apply—they could only have separate-but-equal “civil unions.”

Now, though, nearly a third of the states (containing nearly forty percent of the population) have legalized gay marriage, and in most cases, that’s been through the actions of elected legislatures or voters at the ballot box.

In Texas, meanwhile, if the status of gay marriage is going to change—at least in the short term—it’ll likely have to be in the courts. And there are four lawsuits pending that are challenging the various restrictions in the state that outlaw gay marriage. As we take a look at them, let’s also take a moment to trace the history of gay marriage bans in Texas.

Most of what’s in there will be familiar to you, though I at least didn’t realize that the first shot in this branch of the culture war was fired in 1997. The most recent developments in the state are the lawsuits, one about divorce and the other about marriage, that are likely to have a profound effect on the status quo going forward. Assuming that the federal lawsuit doesn’t make it all moot in the wake of the Utah decision, of course. In an ideal world, the existing laws would be repealed by the Legislature, but we may never get to a point where there’s a sufficient majority to repeal that awful constitutional amendment; a one-third minority in either chamber would be enough to block any such attempt. So I’m happy for the courts to do what needs to be done, but as I’ve been saying I just wonder how big and insane the freakout will be when it happens. We may get a good idea of that soon.

Keep getting married, Utah

You have at least a few more days till the next court ruling.

RedEquality

A federal judge on Monday allowed gay marriage to continue in Utah, rejecting a request to put same-sex weddings on hold as the state appeals a decision that has sent couples flocking to county clerk offices for marriage licenses.

Judge Robert J. Shelby overturned Utah’s ban on same-sex marriage Friday, ruling the voter-approved measure is a violation of gay couples’ constitutional rights. The state then asked him to put a stop to the weddings, but he rejected the request.

Shelby’s ruling is far from the end of the legal wrangling on the topic. The state quickly filed a request with the 10th U.S. Circuit Court of Appeals to put gay marriage on hold, and that court could rule as soon as Monday evening or Tuesday. The same court, in Denver, likely will hear the full appeal of the case several months from now.

In the meantime, the rush on marriage licenses continues for gay couples around Utah.

More than 300 gay couples have obtained marriage licenses since Friday in Utah’s most populous county. On Monday, an estimated 100 licenses were issued in other counties, while some clerks shut their doors as they awaited Shelby’s decision.

[…]

Even if the 10th Circuit grants a stay, the marriages licenses that already have been issued probably will remain valid, said Carl Tobias, a constitutional law professor at Virginia’s University of Richmond who has tracked legal battles for gay marriage. It’s not entirely certain, however, because Utah’s situation has unfolded differently than other states, and there’s no direct precedent, he said.

The appeals court already has rejected two previous requests from the state due to procedural issues, but it has not yet considered the case based on merits.

Who knows what will happen with the appeals court, but for now the biggest obstacle is recalcitrant county clerks.

Judge Shelby explicitly said his ruling allows all people the “fundamental right” of marriage. He said counties who don’t comply are breaking the law.

In Utah County, the clerk’s office was not issuing same-sex marriage licenses even after Shelby ruled, and they turned away at least three couples. Utah County Clerk Bryan E. Thompson told The Salt Lake Tribune he would wait to see how the 10th Circuit Court of Appeals in Denver ruled on Shelby’s decision before deciding how to proceed.

I hope they come around on their own, because the state sure isn’t going to enforce that requirement. Be that as it may, this is a joyful week for a lot of people in Utah, and I daresay a hopeful one for folks in Texas and other states like it. If it can happen in Utah, it can truly happen anywhere. Take a look at some happy couples here and let your heart grow a size or two.

By the way, Utah wasn’t the only place where the cause of marriage equality was being expanded this week. Via Freedom to Marry, a judge in Ohio has gotten in on the act, too.

A federal judge Monday ordered Ohio authorities to recognize gay marriages on death certificates, saying the state’s ban on such unions is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don’t like homosexuality.

Although Judge Timothy Black’s ruling applies only to death certificates, his statements about Ohio’s gay-marriage ban are sweeping, unequivocal, and are expected to incite further litigation challenging the law. Ohio’s attorney general said the state will appeal.

Black cited the Supreme Court’s June decision striking down part of a federal anti-gay marriage law, saying that the lower courts are now tasked with applying that ruling.

“And the question presented is whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples … simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004),” Black said in reference to the year Ohio’s gay marriage ban passed. “Under the Constitution of the United States, the answer is no.”

Eighteen states and the District of Columbia allow same-sex weddings, up from six before the Supreme Court decision.

Black wrote that “once you get married lawfully in one state, another state cannot summarily take your marriage away,” saying the right to remain married is recognized as a fundamental liberty in the U.S. Constitution.

“When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court,” he wrote.

Black referenced Ohio’s historical practice of recognizing other out-of-state marriages even though they can’t legally be performed in Ohio, such as those involving cousins or minors.

Go read that Freedom to Marry for analysis of what that means. What I take from it is that it rips a pretty big hole in the state of Texas’ arguments about gay divorce. It sure feels to me like the walls are closing in on the Double Secret Illegal Anti-Gay Marriage Constitutional Amendment. I can only wonder what the reaction will be like from the state GOP when the inevitable happens.

Texas Monthly on transgender marriage in Texas

It’s way more complicated than it needs to be.

Nikki Araguz and William Loyd

Here’s a stumper: Is it legal for a transgender person—say, someone whose original birth certificate says “male,” but who identifies as a woman—to get married to a man who identifies as a man?

The law in Texas is unclear in ways that have been a nightmare for Nikki Araguz, a transgender Houston woman whose husband, Thomas Araguz, died in 2010 while serving as a volunteer firefighter in Wharton County. Araguz has been fighting in court since her husband’s death for survivor’s benefits, and [recently], her case was heard by the 13th Court of Appeals.

Why is the law unclear?

In 2005, Proposition 2 passed in Texas. That constitutional amendment said that “marriage in this state shall consist only of the union of one man and one woman.” Some folks, including 329th District Judge Randy Clapp (using precedent established by the 1999 Texas Court of Appeals decision in Littleton v. Prange, look at Nikki Araguz and see a man; thus, the marriage for which she seeks benefits as her husband’s widow was a same-sex marriage that is not recognized in Texas.

This is complicated, though, by legislation authored by State Rep. Lois Kolkhorst (R-Brenham). That legislation, which passed in 2009, allowed that a court order establishing a change in sex was an acceptable document when presenting identification to obtain a marriage license. If proof of gender reassignment surgery is sufficient to grant one a marriage license, then it stands to reason that the marriage of Nikki and Thomas Araguz is legal in Texas.

[…]

The hearing on that appeal happened last week, but the ruling has no timetable yet. And in the meantime, confusion continues to reign. In 2010, Sabrina Hill, a woman who was born intersex (that is, with both male and female genitalia) and declared male on her birth certificate though she identifies as female, applied for a marriage license to marry her girlfriend. A judge’s order, following gender-reassignment surgery, recognized Hill as a woman, but when applying for the license, Therese Bur, the El Paso clerk couldn’t determine whether to use Hill’s birth certificate and issue a license as a heterosexual marriage, or to use the court order and deny it as a same-sex marriage. The clerk turned to Attorney General Greg Abbott for direction, and Abbott declined to weigh in. (Hill and Bur instead went to San Antonio,where they were granted a license.)

It’s probably for the best that they did—if they’d waited for a final decision on Nikki Araguz’s case to settle things (she’s on her second appeal, having lost once in 2012), the now 63-year-old Hill would have no end in sight, regarding how long she’d be waiting.

The article in question is from a few weeks back; I had it in my queue but never got around to publishing my post. I’ve written about this subject before. As the story notes, Rep. Kolkhorst has made two attempts to amend her 2009 bill in a way that would essentially forbid transgendered folks from getting married. To me, it’s very simple: If two adults love each other and one or the other is not engaging in fraudulent behavior, they should be allowed to get married. That would clear up this confusion once and for all. Until that enlightened day arrives, I fully support any couple that wants to take advantage of the situation as it now stands. Congratulations, Nikki and William. May the courts and the Legislature not rain on your happiness.

Same-sex divorce in other states

Texas isn’t the only state where this is playing out.

RedEquality

Lauren Beth Czekala-Chatham wants to force Mississippi, one of the America’s most conservative states, to recognize her same-sex marriage. She hopes to do so by getting a divorce.

She and Dana Ann Melancon traveled from Mississippi to San Francisco to get married in 2008. The wedding was all Czekala-Chatham hoped it would be, the Golden Gate Bridge in the background, dreams for a promising future. She wrote the vows herself.

The couple bought a house together in Walls, a town of about 1,100 in northern Mississippi’s DeSoto County in June 2009. But the marriage was tumultuous and, like so many others, it didn’t last.

Czekala-Chatham, a 51-year-old credit analyst and mother of two teenage sons from an earlier straight marriage, filed for divorce in chancery court in September. She wants to force Mississippi to recognize the same-sex marriage for the purpose of granting the divorce.

“It’s humiliating to know that you spend that money, that time to be in a committed relationship and for it to end. I mean, that hurts. But then to be in a state that doesn’t recognize you as a human being, or recognize you for who you are, for who you love, it’s hard,” Czekala-Chatham said during an interview at her current home in Hernando. “I’m not treated like the neighbors next door. I’m treated like a second-class citizen.”

She has plenty of company among gay and lesbian couples in other conservative states, although thus far only a few have pursued divorce cases in the courts.

[…]

“The idea you can’t go to your local courthouse and file for divorce is very disruptive,” said Peter Zupcofska, a Boston lawyer who has represented many gay and lesbian clients in marriage and divorce cases. “It’s an enormous waste of effort and time.”

The right to divorce isn’t as upbeat a topic as the right to marry, but gay-rights lawyers and activists say it’s equally important.

“The marriage system is a way we recognize and protect the commitments people make to their partner,” said James Esseks, director of the Lesbian, Gay, Bisexual and Transgender Project at the American Civil Liberties Union.

“Part of that system is creating a predictable, regularized way of dealing with the reality that relationships sometimes end,” he said. “Those are the times people are the worst to each other, and that’s why we have divorce courts. There’s got to be an adult in the room.”

[…]

The Mississippi Attorney General’s office filed a motion to intervene on Nov. 15 that said the divorce petition should be dismissed.

Mississippi “has no obligation to give effect to California laws that are contrary to Mississippi’s expressly stated public policy,” the motion argues. “That legitimate policy choice precludes recognition of other States’ same sex marriages for any reason, including granting a divorce.”

Legal experts say getting Mississippi to recognize the marriage for any purpose is a longshot. Lawmakers amended state law in 1997 to say any same-sex marriage “is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.”

In 2004, 86 percent of Mississippi voters approved an amendment placing a ban on same-sex marriage in the state constitution.

In his arguments for a divorce, Czekala-Chatham’s lawyer, Wesley Hisaw, cites a recent ruling by the U.S. Supreme Court that struck down parts of the federal Defense of Marriage Act and ordered the U.S. government to recognize legal same-sex marriages. That has created a situation where same-sex couples “are married lawfully under the laws of the United States, but not under Mississippi law,” Hisaw contends.

He also argues that bigamous and incestuous marriages are considered “void” in Mississippi, just like same-sex marriages, but bigamy and incest are also grounds for divorce.

“There can be no legitimate state purpose in allowing bigamous or incestuous couples to divorce and not allowing the same remedy to same-sex couples,” he wrote.

[…]

A similar case has just commenced in Kentucky, where two women married in Massachusetts are seeking a divorce.

At least one same-sex couple has been able to get a divorce in a state that doesn’t officially recognize same-sex unions. In 2011, the Wyoming Supreme Court ruled that two women married in Canada could get a divorce in the state, reversing a ruling by a district judge.

So the situation elsewhere is much like it is here in Texas, where just like in Texas the state’s argument is that gay people need to check their rights at the border because their state exists in a special little bubble. Obviously, at some point the Supreme Court is going to have to sort this all out. That’s likely still a few years away, so in the meantime all these folks that are going through this will need to spend more and suffer longer to arrive at a less definitive outcome than anyone else could get. Why we have to do this the hard way I don’t know, but that’s the way we’re going to do it.

Will Texas wind up advancing the cause of same sex marriage?

Not voluntarily, of course, but it could happen.

RedEquality

One couple wants to get married, while the other just wants theirs recognized. A third couple wants a divorce, while the fourth wants theirs finalized. If all win their lawsuits, they could overturn the Texas ban on same-sex marriage.

A federal court in San Antonio will hear arguments next month from the attorneys representing the couples who want to live lawfully wedded. The Texas Supreme Court is considering the cases of the couples who want their out-of-state marriages legally dissolved.

They are challenging a constitutional ban on gay and lesbian marriages approved by 1.7 million Texas voters in 2005. At the time, only Massachusetts allowed gay marriage and conservatives hoped to pass a federal constitutional amendment defining marriage as between one man and one woman.

Eight years later, 16 states and the District of Columbia have legalized same-sex marriages, and New Mexico is allowing marriages pending a decision by that state’s Supreme Court later this year. The U.S. Supreme Court has also struck down the Defense of Marriage Act, saying federal authorities cannot deny the rights of couples legally married under state law.

That led to the first encroachment on Texas law, when the Texas National Guard agreed last week to begin processing applications for military benefits filed by same-sex couples. Initially, the guard told service members to apply for benefits at federal facilities because Texas law banned them from recognizing same-sex marriages.

[…]

The two Texas couples suing to overturn the state constitutional amendment have filed their case in federal court in San Antonio. They claim Texas is denying them their constitutional rights by either refusing to let them get married, or to recognize their marriage from another state.

Abbott has promised to defend the Texas law, as he would any other state law. But in a legal opinion declaring domestic partner benefits unconstitutional in April, he acknowledged that U.S. Supreme Court decisions on same-sex marriages could overturn Texas’ constitutional provision.

See here and here for the background. The referenced opinion by Abbott on domestic partner benefits, which cities have generally ignored or worked around, is here. I do think there’s some realization on the anti-equality side that they’re in a box, but they have no interest in doing anything about it. The fact that this bit of bigotry was enshrined in our state constitution pretty much guarantees that the only way to undo it will be via the courthouse, since there may never be a two-thirds majority of the Legislature to pass a joint resolution repealing what was passed in 2005. With all the activity in the courts these days, that could happen sooner than we think.

Mayor Parker announces same sex spousal benefits for city employees

Mayor Parker had been talking recently about a more comprehensive non-discrimination ordinance for Houston and possibly revisiting the 2001 charter amendment that forbids the city from offering domestic partner benefits. I knew something would be coming, but I didn’t expect this.

Mayor Annise Parker

Mayor Annise Parker

The city of Houston will offer health and life insurance benefits to all spouses of legally married employees, including same-sex couples, despite a voter-approved 2001 charter amendment that had banned the practice, Mayor Annise Parker announced Wednesday.

Parker’s action relied on a legal opinion from City Attorney David Feldman that cited the U.S. Supreme Court overturning the federal Defense of Marriage Act this year, federal agencies’ subsequent decisions to recognize legal same-sex marriages and other relevant case law.

“Based on the right to equal protection under the law, it is unconstitutional for the city to continue to deny benefits to the same-sex spouses of our employees who are legally married,” Parker said. “This change is not only the legal thing to do, it is the right, just and fair thing to do.”

The 2001 charter amendment states, in part, “Except as required by State or Federal law, the City of Houston shall not provide employment benefits, including health care, to persons other than employees, their legal spouses and dependent children.”

Parker said the language is plan in referring to legal marriages. Same-sex marriages conducted in any jurisdiction where the act is legal, including foreign countries, 17 states and the District of Columbia, will be recognized, she said.

Here’s the official press release, with a bit more information.

The city of Houston is following actions already taken by several federal agencies, including the Internal Revenue Service, which announced in August that all legally married same-sex couples will be recognized as married for federal tax purposes, even if those couples reside in states that do not recognize same-sex marriage.”

As a result of this policy change, same-sex spouses of city employees will now be eligible for the same health care and life insurance benefits previously offered only to heterosexual married couples. It is unclear at this time as to how many employees will take advantage of the change because there is no way to know how many have legally recognized same-sex marriages. The new policy will not extend to domestic partners; it applies only to legally married couples.

I’m delighted to see this happen, and very happy for my friends Noel Freeman and Brad Pritchett, who are the first beneficiaries under this directive. I think we all know that this is hardly the end of it, however. For one thing, Attorney General and candidate for Governor Greg Abbott is sure to weigh in, either on his own accord or because he’s formally asked for an opinion by the likes of Sen. Dan Patrick, who requested the opinion about domestic partnership benefits earlier this year. Abbott has intervened in the gay divorce lawsuit with the contention that same sex marriage simply doesn’t exist in Texas. Doesn’t matter what you did in Massachusetts or wherever, your gay marriage disappears in a puff of constitutional smoke once you cross back over the state line. I’m sure Abbott et all would argue that since the state of Texas does not recognize Noel and Brad’s marriage, the city of Houston is not allowed to recognize it, either. If the state is willing to screw over active duty military members, it’s willing to screw over municipal employees.

I also fully expect blowback from the Dave Wilson crowd. The man himself is ready to oblige.

“My understanding of the Texas state law is that you cannot be legally married unless you’re the opposite sex in the state of Texas, and that will be the overriding thing,” Wilson said. “They’re just trying to monkey with the words. I will absolutely take this all the way to the Supreme Court.”

Wilson is the main reason we have that charter amendment in the first place. If there’s any justice, he’ll spend himself into the poorhouse pursuing this and lose anyway. Politically speaking, one way or another, we still need to have a vote to repeal that amendment. I’m sure this will be on Mayor Parker’s agenda for her third term.

But all those are concerns for another day. For now, let’s celebrate this advance for equality in Houston. Kudos to Mayor Parker for making it happen. Texpatriate, Texas Leftist, and the Observer have more.

Texas Supreme Court hears gay divorce case

Seems like a slam dunk to me, but who knows what our Supreme Court will do.

RedEquality

Two same-sex couples who were legally married in Massachusetts urged the state Supreme Court on Tuesday to allow them to get divorced in Texas.

But a lawyer for Attorney General Greg Abbott said allowing same-sex couples to divorce would violate the state’s ban on gay marriage, which prohibits any official act that would recognize or validate such a union.

“Under the Texas Constitution and the Texas Family Code, all same-sex marriages are void and unenforceable for any reason, including divorce, regardless of where the marriage was created,” deputy attorney general James Blacklock told the court during oral arguments Tuesday morning.

While they cannot divorce, same-sex couples can still legally separate in Texas by asking a judge to declare their marriage void, Blacklock said.

James Scheske, a lawyer for the couples, told the court that voiding a marriage would create a legal fiction because the process declares that the union never legally existed — telling other states, in essence, that the marriage they recognize as legal in fact never legally existed.

In a question echoed by several other members of the court, Justice Don Willett asked how a same-sex union could be dissolved without the court recognizing the marriage as valid, in violation of state law.

The state’s law banning same-sex marriage should not be construed to apply to divorce, Scheske replied.

“Marriage and divorce are separate and opposite from each other,” he said. “None of that has anything to do with divorce. That all relates to marriage.”

If, however, the state’s ban on same-sex marriage is used to deny his clients the right to petition for divorce, then there is a constitutional problem, Scheske said.

“Forcing a targeted group of citizens into a separate and unequal court procedure is never constitutional, and that’s what happens here,” he said.

See here for a recitation of the history. Like I said, the plaintiffs’ argument seems clear and compelling to me. As noted in the Texas Politics report, the state is basically seeking to override the marriage laws elsewhere in the country. That’s not at all the same thing as banning same-sex marriages inside Texas. The Observer goes into more detail.

Abbott’s position is that the only legally valid way for a same-sex couple to end their marriage in Texas is to void it. Unlike a divorce, voiding a marriage nullifies it from its inception—legally, it’s as if the marriage never took place. In Texas, marriages between blood relatives or with a married individual are legally void. Thus, Abbott would have Texas treat same-sex marriage on par with a marriage involving bigamy or incest. The problem with this position is not just that it demeans the relationship (intentionally, no doubt).

Marriage creates rights and obligations with respect to each other’s property and person. Unlike divorce, voiding the marriage does not provide a wholesale remedy for separation, precluding the couple from fully disentangling from each other’s lives and starting anew. For example, while the couple’s marriage may be void in Texas, they could continue to accrue debt and property as a couple in the state in which they married. Perhaps more important than property rights, without divorce individuals may not be able to re-marry. One Texas court explained that to deny divorce is to place the couple “in a prison from which there was no parole.”

Voiding marriages is not unprecedented in Texas. However, as Abbott acknowledges, voiding a marriage does not provide the same “robust protections” as divorce. Abbott would treat divorce as a special right of marriage reserved only for heterosexual couples. And, yet, as much as Texas may wish to close its eyes to same-sex marriage, the marital relationship is still a legal fact. The couple is legally married according to the laws of many states and the federal government, and therefore, subject to numerous legal rights and responsibilities related to marriage.

Though Texas may wish to ignore it, married same-sex couples are entangled in much the same way as other married couples and, thus, the “robust protections” of divorce are a practical necessity in order to adequately dissolve the marriage. Without this, the couples’ lives may remain inextricably bound, creating a multitude of unforeseen problems in the long term—problems that will inevitably require courts and lawyers to resolve.

And I’m sure Greg Abbott’s plan as Governor to deal with that would be to pass laws restricting access to the courts for such people. You know, in the name of limiting “frivolous” lawsuits. This is where a strategy of burying one’s head in the sand tends to lead. Now we just wait for the Supremes to issue their ruling, which will take some number of months. Trail Blazers has more.

The state’s head in the sand legal strategy

Slate and its invaluable legal writer Dahlia Lithwick take a look at the state of Texas’ determination to ensure that gay married couples stay gay married in Texas.

RedEquality

On Nov. 5 the Supreme Court of Texas will hear arguments regarding whether the men’s constitutional rights are violated by not granting them a divorce. J.B. and H.B.’s case is actually one of two same-sex divorce cases now pending before the Texas Supreme Court. In a second case, the same-sex divorce was granted to a lesbian couple after a state appeals court determined that the state of Texas intervened too late.

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.

[…]

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.

Texas counters that J.B. and H.B. are far from trapped in the legal oblivion just described. They have a perfectly valid option: They can ask that their marriage be declared “void.” In other words, the state is willing to declare that their marriage never existed in the first place. Thus while the men wish to check the “divorced” box, the state is offering a chance to check the “never married” box instead. No harm, no foul.

But this is a transparently flawed solution. The fact is that these two men were married. Texas is trying to retroactively declare that a marriage deemed valid in Massachusetts was never real. And while a state’s ability to be hostile and dismissive to the desires of same-sex couples is still under debate throughout this country, a state’s inability to be hostile and dismissive to the legal declarations of other states is a pretty settled matter.

Simply voiding the marriage creates its own problems. The spouses might have had children or accumulated joint property and debt. Extinguishing the marriage from its outset would flush those legal rights down the drain. Children who were born or adopted to such marriages, for example, could find their legal rights vis-à-vis their parents brought into question. A spouse who raised those children while the other worked or went to school, meanwhile, might have no claim to alimony. As one court has put it, retroactively invalidating marriages would “disrupt thousands of actions taken … by same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of … couples and their families, and potentially undermining the ability of citizens to plan their lives.”

But even that isn’t the most worrisome problem. Simply voiding a years-long, state-sanctioned marriage forces the couple to pretend that something as significant in their lives as their legal union never occurred. The state’s “attempt to ‘erase’ their lived history,” the ACLU and Lambda Legal brief argues, “is demeaning and demonstrates nothing more than a desire to express public disapproval of their constitutionally-protected intimate relationship.”

See here for more. Basically, the state is arguing that it has the right to stick its fingers in its ears and say “LA LA LA I CAN’T HEAR YOU!!” when the subject of marriage equality comes up because if it were forced to acknowledge the existence of same sex married couples via its courts granting divorce decrees it might get cooties or something. When your legal strategy is to claim that you should be allowed to pretend that something doesn’t exist, it would seem you are on inherently shaky ground. As with the redistricting argument that it’s okay for them to discriminate against minorities as long as they had partisan motives for doing so, you kind of have to admire the belief that they have a legal right to distort reality to maintain their precious worldview. Greg Abbott is clearly an underappreciated genius for coming up with such innovative logic. I wouldn’t put it past our State Supreme Court to buy what he’s peddling, but I feel pretty confident that the ship will eventually run aground on the shores of the federal courthouse. It can’t happen soon enough.

Texas Supreme Court to hear gay divorce case

That sound you hear is a big can of worms being opened.

RedEquality

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.

The Dallas Observer and the Dallas Voice have more. The latter contains a reader comment that sums up the possible outcomes:

– 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.

Transgender divorce

That sound you hear is another can of worms fixing to be opened.

James Scott and Rebecca Robertson started married life quietly with a small church wedding.

Thirteen years later, their union is ending — not so quietly. Robertson wants a court to declare the marriage void. Scott prefers a divorce.

The complicating factor: Scott was born a woman, and same-sex marriage is illegal in Texas. How can there be a divorce, Robertson reasoned, when there legally was no marriage?

Last month, a Dallas judge denied Robertson’s request for a summary judgment voiding the marriage, setting the stage for a court battle to clarify whether transgendered people can legally marry in Texas.

It’s a clarification many don’t feel is needed, said Shannon Minter, an attorney with the Transgender Law and Policy Institute in Washington.

“Tens of thousands of transgendered people get married and have no problem ever,” said Minter, who counts himself in that category. “That is the practical reality across the country.”

But the fight over same-sex marriage has called that reality into question.

Go read the whole complicated story. We’ve discussed gay divorce, and we’ve discussed transgender marriage, both of which come with a fair amount of pending litigation, all of which I expect will eventually wind up before the Supreme Court. Texas’ statutes are somewhat contradictory and allow for these situations to happen depending on whether one uses a birth certificate or a drivers license to verify one’s identity. Needless to say, we would not have any of these problems if the state were to recognize the folly of restricting marriage based on one’s gender and just let two consenting adults be allowed to do what two consenting adults ought to be free to do, but that ain’t where we are. Until that fine day, county clerks and district court judges are going to have their hands full.

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.

Abbott wants to block Austin gay divorce

Attorney General Greg Abbott is once again fighting to protect the sanctity of divorce in Texas.

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, said James Blacklock, a lawyer in Attorney General Greg Abbott’s appellate division. He urged the 3rd Court of Appeals to invalidate the divorce.

“The people of Texas and their elected representatives have spoken very clearly on the issues of this case: Marriage consists solely of the union of one man and one woman,” Blacklock said during oral arguments.

But lawyers for the women, who were married in Massachusetts, urged the three-judge appellate panel to preserve the divorce, saying Abbott has no authority to intervene in a case that ended months ago.

“Discrimination against gays and lesbians is really the last area in which state government openly discriminates against its citizens,” lawyer Jody Scheske told the court. “If the attorney general’s office has its way, we also would deny legal access to divorce.”

The court panel — Republican David Puryear and Democrats Woodie Jones and Diane Henson — has no deadline for issuing its opinion. However it rules, an appeal to the Texas Supreme Court is likely.

After their 2004 wedding in Massachusetts, one of five states where gay marriage is legal, Angelique Naylor and Sabina Daly moved to Austin and adopted a son, now 5.

Naylor filed a divorce petition last year, leading to a “breathtakingly sad” two-day February hearing over the division of property and shared custody of their son, lawyer Robert Luther told the court. At the end, Jenkins made an oral ruling granting the divorce and told the women to return to his court in one month with final papers for him to sign.

The next day, Abbott moved to intervene in the case, arguing that Jenkins lacked authority to grant a same-sex divorce. Jenkins refused Abbott’s request, chided the attorney general for failing to take the child’s well-being into account and issued a final divorce decree on March 31. Abbott appealed.

Yes, as I said before, Abbott believes that divorce is the sacred dissolution of a bond between one man and one woman. He’s gotten involved before to ensure that gay married couples stay gay married. If only these folks had been required to take Warren Chisum’s marriage class before they got gay married, maybe we wouldn’t have these problems. Perhaps the next Lege can do something about that.

Appeals court overrules gay divorce ruling

Gay couples who got married outside of Texas can’t get a divorce inside Texas, according to the 5th Court of Appeals in Dallas.

Two men won’t be able to turn their Massachusetts marriage into a Texas divorce, the Dallas Court of Appeals ruled today. At Attorney General Greg Abbott’s request, the court overruled a lower court’s order that granted them a divorce.

When a Dallas family court moved forward with the case last October, Abbott appealed, saying that “the laws and constitution of the State of Texas define marriage as an institution involving one man and one woman” and that the court’s decision “purports to strike down that constitutional definition.” The appeals court agreed with Abbott’s argument — essentially, that the state can’t dissolve a marriage that it doesn’t recognize — and asked the lower court today to dismiss the case for lack of jurisdiction. […]

Randall Terrell, the political director of gay rights advocacy group Equality Texas, says the language interpreting the Constitution in the Dallas court’s ruling is “tailor-made” for an appeal to the U.S. Supreme Court. That is, “if the parties have the financial wherewithal and the desire to push this case that far.” If the men decide to appeal today’s ruling — and their lawyer Pete Schulte says they haven’t yet made that decision — the next stop would first be the Texas Supreme Court.

You can read the ruling here (PDF); background on the case is here, here, and here. There are two things I know today. One is that it will take federal action for marriage equality to come to Texas. As was the case with the civil rights movement and women’s suffrage, this is the sort of thing that cannot be left up to the states. Whether by Congress or by the Supreme Court, this basic right will need to be federally enforced. That day is coming – not soon enough, of course, but it’s coming. And when it does, the other thing I know is that some day we will look back at this and wonder why it wasn’t always this way. We’ll marvel at the lengths that opponents went to delude themselves and distort the truth. And we’ll look at how far we’ve come and be glad. A statement from Equality Texas about this ruling is here.

Gay divorce lawsuit update

It’s all a little surreal.

A man seeking to end his same-sex marriage in Dallas County is arguing an ironic point in a state that doesn’t recognize his nuptials: Grant the divorce and there will be one less gay marriage in Texas.

“My client is a married man and he needs a divorce,” said the man’s attorney, Jody Scheske, who argued that granting the divorce promotes the state’s policy against gay marriage. “But for the actions of the attorney general, there would already be one less same-sex marriage in Texas.”

That argument came Wednesday before a three-judge panel in the Fifth District Court of Appeals in Dallas that is hearing arguments after Texas Attorney General Greg Abbott appealed a state district judge’s ruling in October to grant the divorce. In her decision, Judge Tena Callahan also ruled that the state’s ban on gay marriage is unconstitutional.

But the attorney general’s office and the conservative Plano-based Liberty Institute argued that to recognize the divorce, Texas would have to recognize the marriage. They said that that by trying to divorce, the men – identified in court records as JB and HB – were trying to overturn Texas’ gay marriage ban.

See here and here for some background. Accepting the AG’s arguments is clearly the easy thing for the court to do, and I won’t be at all surprised if that’s what happens. The reason why the two men want a divorce is because they want a legally binding agreement for how they split up their assets, which seems like a simple enough thing to me. But nothing else will be if they get that. Which would be fine by me. I just don’t expect it to happen.

Abbott sues to protect the sanctity of divorce

Now hear this: All you people out there who got yourselves gay married, Texas Attorney General Greg Abbott wants to make sure you stay gay married.

Attorney General Greg Abbott is trying to halt the divorce of two women in Austin on grounds their Massachusetts marriage is not recognized in Texas.

A Travis County state district judge on Feb. 10 granted a divorce in court to Sabina Daly, 41, of San Antonio, and Angelique Naylor, 39, of Austin. Abbott’s aides went to court the following day to block the divorce before the written decree was entered.

“A divorce is an ending or a termination of a valid legal marriage,” Abbott said Tuesday. “In this instance there was no valid legal marriage recognized by the state of Texas. Texas can’t have a faulty precedent on the books that validates an illegal law.”

[…]

It was not the first time Abbott’s office has sought to halt a same-sex divorce. He intervened last October in a Dallas case when two men were granted a divorce.

[Daly’s lawyer Bob] Luther said in that case Abbott intervened before the divorce was decreed in open court. The judge in that case rejected Abbott’s arguments and the state has appealed to try to overturn the divorce.

You got that? Divorce is the sacred dissolution of a bond between one man and one woman. Greg Abbott is fighting to make sure it stays that way.