Texas appeals court says gay couples legally married in other states can’t divorce in Texas

By Jamie Stengle, AP
Tuesday, August 31, 2010

Court says gay couples can’t divorce in Texas

DALLAS — Gay couples legally married in other states cannot get a divorce in Texas, where same-sex marriage is banned, a state appeals court ruled Tuesday.

The 5th Texas Court of Appeals ruled that a Dallas district court judge didn’t have the authority to hear a divorce case involving two Dallas men who married in Massachusetts in 2006. Republican state Attorney General Greg Abbott’s office had appealed after Judge Tena Callahan, a Democrat, said she did have jurisdiction and dismissed the state’s attempt to intervene.

“Today’s court of appeals decision overruled the district court’s improper ruling, confirmed the constitutionality of Texas’ traditional definition of marriage and correctly found that Texas courts lack the legal authority to grant divorces to same-sex couples,” said Abbott spokesman Jerry Strickland.

Callahan also had ruled Texas couldn’t limit marriage to a man and a woman, but the appeals court said the state’s same-sex marriage ban was constitutional.

“A person does not and cannot seek a divorce without simultaneously asserting the existence and validity of a lawful marriage,” Justice Kerry P. Fitzgerald wrote on behalf of three Republican appeals court justices. “Texas law, as embodied in our constitution and statutes, requires that a valid marriage must be a union of one man and one woman, and only when a union comprises one man and one woman can there be a divorce under Texas law.”

The appeals court ordered the case be sent back to Callahan, who must vacate her order.

The men, known only as J.B. and H.B. in court filings, separated amicably two years after getting married.

J.B.’s attorney, Peter Schulte, has said the two men had no children and weren’t arguing over how to divide their property, but wanted an official divorce. Schulte said Tuesday they had not yet decided whether to appeal to the Texas Supreme Court.

“We obviously disagree with the justices’ ruling, but we respect the process and respect the court,” Schulte said.

Abbott’s office had argued before the three-judge appeals court in April that the couple was not eligible for a divorce in Texas because the state didn’t recognize their marriage. Jody Scheske, another lawyer for J.B., argued his client was entitled to a divorce because he had a valid marriage.

The appeals court agreed with Abbott that such unions could be dissolved by having the marriage declared void.

Among the reasons J.B. argued for a divorce rather than a voidance was that spousal support and community property laws only apply in divorce cases. The appeals court said those issues are policy arguments that must be addressed by the Legislature.

“It’s deeply disappointing to see courts deny same-sex couples equal treatment under the law,” said Jennifer Pizer, a lawyer for Lambda Legal, which promotes equal rights for gay, lesbian, bisexual and transgender people.

Texas voters passed a constitutional amendment to ban same-sex marriage by a 3-to-1 margin in 2005 even though state law already prohibited it. Kelly Shackelford, president of the conservative Plano-based Liberty Institute, said the Tuesday ruling “strikes down an activist judge’s attempt to take the law into her own hands.”

Abbott’s office also appealed a gay divorce case in Austin after a judge there granted a divorce earlier this year to two women who married in Massachusetts in 2004. The Austin appeals court has not yet heard arguments in that case.

One of the women, Angelique Naylor, told The Associated Press in April, “We didn’t ask for a marriage; we simply asked for the courtesy of divorce.”

She referred requests for comment about Tuesday’s ruling to Scheske, who also is her attorney.

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