In Texas, A Tussle Over Gay Divorce

At least one official in the Lone Star State is so dead-set against same-sex families being allowed to marry that he's even unwilling to see one lesbian couple granted a divorce, lest that be taken as a validation of a marriage by declaring it legally ended.

The Austin Chronicle reported on Dec. 23 that Angelique Naylor and Sabina Daly had married in 2004, while living in Massachusetts. After the couple relocated to Texas--where marriage equality is denied same-sex families--they decided to split up. Seeking to dissolve their legal ties, the women ended up in a legal labyrinth. Though Judge Scott Jenkins granted their divorce earlier this year, Texas Attorney General Greg Abbott stepped in, seeking to nullify the divorce on the grounds that granting the divorce would, in effect, be granting the marriage retroactively. Declaring the marriage ended would, in other words, mean acknowledging that it had really existed. The case went to the state's 3rd Court of Appeals, with James Blacklock representing the AG's office, the article reported.

Angelique Naylor's lawyer, Jody Scheske, rebuffed the argument that divorce is denied along with marriage under state law, noting that the law in question only addresses marriage and its benefits, remaining silent on the issue of divorce. "I don't think anybody who has been through a divorce thinks a divorce is some benefit of marriage," quipped the attorney.

But Blacklock purported to see a gay agenda at work in the women's legal attempt to extricate themselves from their relationship. "It is a desire of same-sex couples to have their marriages recognized here," Blacklock claimed, that was behind the divorce proceedings.

Whatever the merits of claiming that filing for divorce constitutes an attempt to be recognized as married, the appeals court's justices had a more fundamental question: did it lie within the AG's purview to challenge a divorce that a judge had already granted? Blacklock replied in the same vein: because the divorce filing was actually an attempt to defy the law barring gay marriage, the AG's office was right to step in, he argued.

The article said that the court's ruling would likely be handed down at some point in 2011. An anti-gay law from 1996, the so-called "Defense of Marriage" Act (DOMA), expressly singles out same-sex families in order to deny them federal recognition--and also gives states permission to ignore marriages granted to same-sex couples in other jurisdictions.

The case is similar to another same-sex couple's attempt to get a divorce in Texas. A Jan. 23 article in the Dallas Morning News detailed that the unnamed male couple had been longtime life partners before their 2006 marriage. On Jan. 21, one partner in the marriage applied for a divorce under a legal provision allowing for the dissolution of a marriage on the grounds of "discord or conflict of personalities."

The couple remained nameless in media reports; stated the man seeking the divorce, "Personal things could happen to us that wouldn't happen to other people." The man indirectly referred to a lack of protections for sexual minorities in the workplace, saying, "My company has an extremely low tolerance for publicity."

Voters in Texas approved an amendment to the constitution that forbids legal recognition of gay or lesbian marriages, and under DOMA Texas may legally ignore a marriage granted to a same-sex family in Massachusetts. AG Abbott declared that he would have a say in the divorce request, in order "to defend Texas law--and the will of the people," reported the Dallas Morning News. Stated Abbott, "In the State of Texas, marriage is--and has always been--a union between one man and one woman.

"To prevent other states from imposing their values on this state, Texas voters overwhelmingly approved a constitutional amendment specifically defining marriage as a union of one man and one woman," Abbot added, in a written statement. "Because the parties' Massachusetts-issued arrangement is not a marriage under Texas law, they are asking a Texas court to recognize--and dissolve--something that does not legally exist."

But Peter Schulte, who represents one of the unidentified men, argued that the focus was not gay marriage per se; the article quoted him as saying, "They want to get divorced just like a straight couple." Schulte said that although his client could simply move back to Massachusetts long enough to qualify as a resident, and then pursue the divorce, the fact that he would need to do so rather than being able to stay put and file for divorce means that his client is being treated differently under the law.

AG Abbott also argued a case against two men who had entered a civil union in Vermont and who subsequently wished to dissolve that union in Texas. Abbott's argument was that no such dissolution was possible in Texas.

Because of DOMA, the national legal landscape is a highly varied one when it comes to family law and non-heterosexual families. One high profile case involving a divorce and custody dispute between two women, Lisa Miller and Janet Jenkins, led to a complex series of legal entanglements, including verdicts by the supreme courts of both Virginia and Vermont, complicated child custody decisions, and an appeal from Miller's lawyers after Miller herself disappeared along with the couple's daughter in what the National Center for Missing and Exploited Children listed as a "family abduction."

Though states have the right to grant marriages, it is not clear that they necessarily have an untrammeled right to deny marriage. The U.S. Supreme Court struck down state laws against interracial marriages in 1967 with Loving v. Virginia. On the federal level, DOMA has been challenged on the grounds that it violates Constitutional guarantees; last summer, a federal judge in Massachusetts, Joseph Tauro, ruled that DOMA violates portions of the Fifth and Tenth Amendments.

At least one state, New York, officially has a policy of honoring marriages granted elsewhere, even though New York does not grant marriages to gay and lesbian families.