Texas Grapples with Gay Divorce
A Texas couple married in Massachusetts are seeking a divorce that the Lone Star State may not be willing to grant. The hitch: the couple are two men.
A Jan. 23 article in the Dallas Morning News detailed that the unnamed couple had been longtime life partners before their 2006 marriage.
But that union is coming to an end: 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," reported the Dallas Morning News.
"My company has an extremely low tolerance for publicity."
The man's lawyer, Peter Schulte, could not predict what the outcome would be of the petition to a Dallas district court, saying only, "We'll see what happens."
It is believed that the case is without precedent in Texas, which does not allow marriage equality to gay and lesbian families.
Moreover, voters in that state approved an amendment to the constitution that forbids legal recognition of gay or lesbian marriages.
Nor is Texas required to recognize the marriage, which was performed in Cambridge, Massachusetts. The Defense of Marriage Act (DOMA), the 1996 federal anti-marriage equality law that defines marriage on the federal level as between one man and one woman, also permits states to refuse to recognize marriages for same-sex couples performed in other jurisdictions.
But Attorney General Greg Abbott did argue a case against two men who had entered a civil union in Vermont and who wished to dissolve that union in Texas. Abbott's argument was that no such dissolution was possible in Texas.
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."
The DA's written statement continued, "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 Schulte argued that the focus was not gay marriage per se; the article quoted him as saying, "that's not what we're talking about here.
"They want to get divorced just like a straight couple."
Though DOMA, in theory, gives states the right to refuse to recognize marriages granted by other states despite the U. S. Constitution's so-called "Full Faith and Credit Clause," Schulte intends to invoke the clause in the case of his client.
The clause--set for in Article IV, Section 1 of the Constitution--requires that states honor contracts drawn up in other jurisdictions within the union, reported the Dallas Morning News.
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.
Schulte posed the question, "Would you give up your life to do something your neighbors don't have to do?"
Added Schulte, "I believe all people should have the same rights to do what they want to with their private lives."
States have dealt with the reality of marriage equality in America in a variety of ways. Rhode Island's State Supreme Court ruled against two women who married in Massachusetts and then sought a divorce in Rhode Island; but Iowa's top court granted a divorce in a similar case involving w female couple who had entered into a civil union in Vermont.
In late 2008, Connecticut became the third state after Massachusetts in 2004 and California in May of last year to grant marriage equality to all of its families.
But in November, gay and lesbian families saw their right to marriage revoked at the ballot box when voters narrowly approved Proposition 8, which rescinded marriage equality in that state.
Other states have come close to extending marriage equality. In New York, the State Assembly approved a bill that would have granted marriage rights to gay and lesbian families, only for the Senate, dominated at the time by Republican lawmakers, to prevent the bill from coming to a vote.
Meantime, the state of New York has upheld a tradition of recognizing marriages granted in other jurisdictions, including other countries such as Canada and Spain, where marriage equality is legal.
In New Jersey and Vermont, the issue of marriage equality has been scrutinized as the only truly viable means of allowing gay and lesbian families equal protections and recognition.
Even the ultimate outcome of Proposition 8 is in doubt; the California Supreme Court has agreed to hear a challenge to the measure based on the claim that Prop. 8 exceeded the purview of a simple amendment and in effect revised the state constitution, which cannot be done via simple majority vote on a ballot initiative.
Overall, there is an expectation that marriage equality will become more prevalent over time, and divorce between same-gender couples likewise "is going to be increasing, both in regularity and geography," according to a Lambda Legal staff attorney, Ken Upton, quoted in the article.
Upton foresaw that the divorce case might rock the boat for gay and lesbian families in Texas and beyond--and not in a positive way.
The Dallas Morning News article cited Upton as speculating that if the case comes before the Texas Supreme Court, families headed by same-sex couples could find their limited rights curtailed even further depending on how the justices rule.
And a challenge to DOMA "has the potential to do damage outside the state of Texas," Upton speculated.
Even though he noted that the Obama administration might promote efforts to revise or even do away with DOMA altogether, Utpon added that the case "does make me nervous."
Texas Eagle Forum president Cathie Adams sounded a note of sympathy for the couple despite the conservative group's views on marriage equality.
Adams said that the end of a marriage is a "very sad scenario for anyone."
Added Adams, "And it's sad for this couple that was given the marriage license in the first place."
However, Adams made it plain that the Texas Eagle Forum stood against granting the couple a divorce: that would constitute "acknowledging the marriage, which the people in our state have said they oppose."
The case has garnered attention from the gay press overseas, with the British GLBT site Pink News reporting on the divorce controversy in a Jan. 23 article.
The Pink News article noted that in terms of federal rights for American families headed by same-sex couples, President Obama, while not a supporter of marriage equality per se, has indicated an interest in finding ways to provide same-sex couples and their families with the many rights--more than 1,100--that are automatically conferred onto heterosexual families with marriage.