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Same-sex couple married in MA cannot get divorce in Texas says state appeals court

In Texas, an appeals court has overturned a trial court ruling and held that a same-sex couple who were married in Massachusetts cannot obtain a divorce in Texas.  Click the link to read the court opinion in In re Marriage of J.B. and H.BTexas amended its constitution in 2005 to add a provision that states:

(a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.
Tex. Const. art. I, ยง 32.
The Texas appeals court held that given this provision, Texas courts cannot grant a divorce to a same-sex couple because Texas law does not recognize the existence of a marriage to dissolve by divorce in the first place.  The court did not that in the statute regarding divorces that a person can bring an action to declare a marriage void but that the plaintiff in this matter did not seek a declaration that the marriage was void but a divorce to dissolve the marriage.  The court would not permit this because Texas law does not recognize the marriage to exist in the first place.

The plaintiff in the case attempted to argue that the marriage should be recognized under principles of comity.  Essentially, comity is a practice in which one sovereign, as a matter of mutual respect, will honor the laws of another sovereign.  The Texas court held that while comity is a common practice, it will not be applied if the result would be contrary to Texas public policy.  The plaintiff argued that there was case law in New York which has not legalized same-sex marriage but that such marriages in other states could be recognized on comity grounds.  The Texas court distinguished those cases by noting that New York has not passed a law explicitly outlawing same-sex marriage as Texas has so while recognition might not be against New York public policy, it would be against Texas public policy.

The Texas appeals court also held that same-sex couples are not part of a protected class such that there was violation of the 14th Amendment provisions of the U.S. Constitution concerning equal protection and due process.  This puts the Texas ruling at odds with the federal court ruling in Perry v. Schwarzenegger,  the case challenging California's Proposition 8.  The current federal court ruling striking down Proposition 8 on 14th Amendment grounds has no impact on Texas yet and would not unless and until the U.S. Supreme Court were to uphold it the U.S. Supreme Court  a lower federal court which has jurisdiction over Texas were to so rule.

Going forward, I would expect that this ruling will stand in Texas courts. A more likely avenue for overturning that would seem to be the Perry case or another federal case going to the U.S. Supreme Court and ruling that denial of same-sex marriage would violate the 14th Amendment.  Or, another possibility could come out of a future challenge to the federal Defense of Marriage Act (DOMA) provision that allows states to not recognize same-sex marriages from other states.

1 Comment

There would be grounds for appealing this case to the U.S. Supreme Court if-

1. The Texas Supreme Court fully affirms the appellate court ruling.

2. The Texas Supreme Court reverses the appellate court ruling on the basis that Texas's divorce laws violate the due process and/or the equal protection clauses of the 14th Amendment.

3. The Texas Supreme Court refuses to hear the appeal. (The U.S. Supreme Court can hear appeals from intermediate state courts on federal law questions if the state's court of last resort declines to hear an appeal.)

If the Texas Supreme Court were to rule that Texas's divorce laws do grant jurisdiction to family courts to hear divorce cases from same-sex couples married in foreign and alien jurisdictions (thus reversing the appellate court), there would be no federal question with which the state of Texas can appeal to the U.S. Supreme Court.

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