No Gay Divorces for Texas

A three-judge panel of the Texas Court of Appeals in Dallas ruled on August 31 that a same-sex couple that married in Massachusetts and then moved to Texas cannot obtain a divorce from a Texas court. The unanimous ruling concluded that Texas courts would not have jurisdiction over such cases, because the Texas constitution and Texas marriage statutes forbid the court from recognizing the men in this case as being married. The court also concluded that these provisions against same sex marriage do not violate the federal Equal Protection Clause.

Writing for the court, Justice Kerry P. Fitzgerald cited in passing U.S. District Judge Vaughan Walker’s ruling that California Proposition 8 – a measure similar to the Texas constitutional amendment – violates the 14^th Amendment, but neither discussed it nor specifically addressed the Walker’s rejection of the very same arguments that the Texas court accepted in its ruling yesterday.

J.B. and H.B., identified in court records only by their initials, were married in Massachusetts in 2006. They subsequently moved to Dallas, and stopped living together in November 2008. J.B. filed the divorce petition in the Dallas County Family District court, seeking a legal dissolution of his marriage and a division of community property if the parties could not reach a property-division agreement. He also sought to reclaim his original last name, no longer wishing to share the same last name with his husband, and attached a copy of the Massachusetts marriage license to his divorce petition.

When news of the case hit the press, the Texas Attorney General’s Office sought to intervene to "protect" traditional marriage in Texas from this perilous assault. But Judge Tena Callahan, finding that the Texas laws against same-sex marriage violate the 14^th Amendment, ruled that she properly had jurisdiction of the case and denied the Attorney General’s attempt to butt in. The Attorney General appealed this ruling, and the first part of the court of appeals’ opinion is devoted to establishing that when the constitutionality of a Texas law is placed in question, the Attorney General has a right to intervene in the case.

Moving to the merits, Justice Fitzgerald first rejected the argument that allowing the divorce proceeding to go forward would not violate Texas law. The court found that the relevant Texas statute "forbids the state and its subdivisions from giving any effect to a ‘right or claim to any legal protection, benefit, or responsibility asserted as a result of" a same-sex marriage, and rejected the argument that dissolving a marriage through the divorce law involves "giving effect" to it.

"The inherent nature of a divorce proceeding requires both a respondent whom the petitioner seeks to divorce and a legally recognized relationship between the parties that the petitioner seeks to alter," wrote Fitzgerald. "A person does not and cannot seek a divorce without simultaneously asserting the existence and validity of a lawful marriage." In the absence of such a marriage, the court concluded, there is no jurisdiction (authority) to decide the case.

The court rejected J.B.’s argument that under rules of "comity" Texas courts would recognize as valid a marriage that was lawful where it was performed. J.B.’s attorneys had cited and relied on a series of recent New York divorce rulings involving same-sex couples who married outside the state. But the court noted a crucial distinction. Unlike Texas, New York has not expressly banned recognition of same-sex marriages by constitutional amendment or statute. The Texas constitutional and statutory bans were cited as expressions of public policy that would override the normal comity rule of marriage recognition.

Turning to the constitutional argument, the court differed with every point that Judge Walker had made in his recent ruling in Perry v. Schwarzenegger, but without specifically mentioning and refuting Walker’s reasoning. Thus, the court said that the right J.B. was seeking to assert was the right to "same-sex marriage," not the right to marriage. When characterized as a right to "same-sex marriage," the court found that he could not argue that such a right was deeply rooted in tradition and history and thus fundamental. Consequently, the court said, it would evaluate the Texas ban under the "rational basis" test, by which it is presumed constitutional and sustainable if the state has some legitimate reason for letting opposite-sex couples marry but not extending the right to same-sex couples.

As to that, the court fell back on the procreation rationale typically relied upon by those courts that have rejected same-sex marriage claims. "Because only relationships between opposite-sex couples can naturally produce children," wrote Fitzgerald, "it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage. The state also could have rationally concluded that children are benefited by being exposed to and influenced by the beneficial and distinguishing attributes a man anda woman individually and collectively contribute to the relationship." To support this point, Fitzgerald cited the intellectually disreputable plurality opinion of the New York Court of Appeals in Hernandez v. Robles, and a law review article by the obsessively anti-gay Brigham Young University law professor Lynn D. Wardle, who has published dozens of such articles reiterating the same anti-gay marriage arguments ad nauseum.

The court rejected the argument that banning same-sex marriage "discriminates against and denigrates same-sex couples," reiterating the argument that procreative potential makes opposite-sex couples and same-sex couples distinguishable, and thus not similarly situated. Just to drive the point home, the court invoked the specter of bigamous and polygamous relationships similarly being against Texas public policy. "Appellee has not shown that the legislative history of the 2005 constitutional amendment defining marriage in Texas as limited to opposite-sex couples reflects any animus against same-sex couples," Fitzgerald asserted. "We cannot conclude that the State’s justification for its marriage laws lacks a rational relationship to legitimate state interests."

Fitzgerald also rejected J.B.’s argument that the distinction between the right to marry and the right to divorce compelled a different analysis. "The laws specific to proceedings for divorce in Texas are an integral part of the State’s overall scheme to give special protections and benefits to married couples," wrote Fitzgerald, who also rejected J.B.’s argument that a judicial declaration that his marriage is void would not be sufficient to meet his need to have his legal relationship terminated, as it might not be recognized in other jurisdictions.

The court rejected as irrelevant the U.S. Supreme Court’s ruling in Lawrence v. Texas and Romer v. Evans, pointing out that in Lawrence the Supreme Court had stated that a decision to strike down the Texas sodomy law did not indicate that Texas was required to extend legal recognition to same-sex relationships, and again asserted that denying marriage, and consequently divorce, to same-sex couples was stigmatizing them by state action.

The Court of Appeals directed that the Family Court dismiss J.B.’s divorce petition for lack of jurisdiction. J.B. could appeal to the Texas Supreme Court to review this decision, but it seems unlikely that the Supreme Court would intervene.