Tuesday, August 31, 2010

Gay Texans Can't Divorce - Even If They Are Legally Married

Last year, as many of you know, two gay men legally married in Massachussetts filed for Divorce in Texas - the state where they had moved. The state refused to grant them a divorce, because by doing so they would "violate" the states consitutional amendment banning gay marriage - yea twisted logic I know. In October a federal judge ruled that the states refusal to grant a divorce, as well as Texas' consitutional amendment, violated the Equal Protection Clause of the 14th amendment. 


But today, the 5th District Court of Appeals ruled in favor of the state. From the Dallas Morning News
Today, the Fifth District Court of Appeals in Dallas reversed that decision and ordered Callahan to dismiss the case.
Same-sex marriages or civil unions are prohibited by a voter-approved amendment to the state Constitution and the Texas Family Code.
The appeals court said today that the trial court had wrongly ruled that those provisions violate the Equal Protection Clause of the 14th Amendment.
Additionally, Justice Kerry P. Fitzgerald wrote in the decision: "We hold that Texas district courts do not have subject-matter jurisdiction to hear a same-sex divorce case."
The two men, identified in court records as J.B. and H.B., married in Cambridge, Mass., in 2006, returned to Dallas and separated two years later. J.B., citing "discord or conflict of personalities," sued in January 2008 to dissolve the union.
Texas Attorney General Greg Abbott intervened in the divorce case, arguing that because Texas doesn’t recognize gay marriage, a Texas court can’t dissolve one through divorce.
But Callahan, a Democrat, rejected the attorney general’s intervention and said her court had jurisdiction to consider a divorce case "filed by persons legally married in another jurisdiction."
Abbott said he would appeal the ruling "to defend the traditional definition of marriage that was approved by Texas voters."
And in arguments before the three appellate judges, all Republicans, attorneys for the state and the conservative Plano-based Liberty Institute repeated the claim that to recognize same-sex divorce, Texas would have to recognize same-sex marriage.
This my friends is another reason why we need to overturn the Defense of Marriage Act. For once we eliminate that, states will have to both recognize gay marriages performed in other jurisdictions as well as allow gay divorces.

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