August 29, 2013
On November 5, the Texas Supreme Court will hear the oral arguments for two same-sex divorce cases, consolidated into the same hearing. The first case is from Travis County, where in March, 2010, a lesbian couple, Angelique Naylor and Sabina Daly, were granted a divorce on the grounds that it would otherwise violate the Equal Protection Act of the U.S. Constitution; if Texas didn't grant the divorce, they would have to move back to Massachusetts for a year to fulfill the residency requirements before filing to end their 2004 marriage. According to plaintiff Angelique Naylor, the divorce in Texas was necessary because they attempted mediation, and it failed. The couple owns a house together, and is raising an adopted son. The second case is from Dallas County, where two men, J.B and H.B, married in 2006 in Massachusetts, were granted a divorce in 2009 by Judge Tena Callahan, as they had no children or disputes. Attorney General Greg Abbott, appealed both the decisions to the Texas Supreme Court, arguing that the court doesn't have the legal power to grant the divorces, and other courts may not recognize the divorces.
In Texas, same-sex marriage is void, and issuing same-sex marriage licenses is prohibited. In 2005, Texas voters amended the state constitution to define marriage as "only of the union of one man and one woman" and denied the state from creating or recognizing "any legal status identical or similar to marriage." Though several Bills have tried to repeal the prohibition of same-sex marriage, they died in committee. In 2003, the U.S. Supreme Court declared a law maintaining that certain sexual acts or "deviate sexual intercourse" between persons of the same sex was a criminal offense and punishable by a fine up to $500 was unconstitutional. Despite the ruling, Texas remains one of four states where unenforceable laws apply only to same-sex acts and have yet to be repealed by legislative action. In 2013, the Defence of Marriage Act that barred same-sex married couples from being recognized as "spouses" for purposes of federal laws, or receiving federal marriage benefits, was also proved unconstitutional in federal court, but this has no effect on state-specific laws.
Attorney General Greg Abbott argues that allowing for these two same-sex divorces to be granted "would not provide the parties with finality and certainty they seek in order to move on with their lives." The ruling that granted these divorces "strikes down that constitutional definition - despite the fact that it was recently adopted by 75% of Texas voters," and added his office would appeal "to defend the traditional definition of marriage that was approved by Texas voters." Granting same-sex divorce would "subject them to the expense and worry of protracted litigation, as well as years of legal and personal uncertainly." Attorney General Greg Abbott claims that Texas trial courts do not have jurisdiction to hear same-sex divorce cases, as the marriages are void in the state. "By pursuing an action for avoidance, instead of divorce, the parties can quickly resolve this case and move on with their lives - without raising any unnecessary constitutional questions, or attacks on, the Texas Constitution, Family Code and the federal Defense of Marriage Act." Voiding the marriages, however, would not allow the couple to adopt a property settlement, financial division agreement or decide a custody framework on legal grounds.