Texas Supreme Court Reviews Gay Divorce

Aug 8, 2012 by

We have already covered the first attempts made by a Dallas man to divorce his husband in Texas. The petitioner known as J.B. in court documents was initially given permission to get a Texas divorce by the Dallas County District Court. However, Texas Attorney General Greg Abbott appealed the decision and the Court of Appeals of Texas reversed the lower court’s ruling and J.B. once again found himself unable to complete a gay divorce in Texas. After J.B. filed another petition for review in February, it looks like his petition may finally be heard by the Texas Supreme Court.

Because Texas limits the legal recognition of marriage to just one man and one woman, same-sex couples in the state cannot be granted a traditional divorce under present Texas law. Gay people in Texas have several partnership options like adoption, cohabitation agreements and the designation of their end-of-life rights, but they have had to resort to traveling to other states to obtain a legal marriage or divorce. This applies to same-sex couple married in other states where it is legal as well. As in the case of the petitioner J.B., who was legally married outside of Texas and now seeks a divorce within the state.

The Texas Supreme Court does not automatically have to hear the petition, and only a few Court of Appeals decisions ever make it that far. However, J.B.”˜s petition is firmly based on three issues that argue the Court of Appeals of Texas misconstrued the law. The first issue presents the case that because the Texas Family Code stating that marriage between persons of the same sex and civil unions are void in Texas, does not contain jurisdictional language, the court made an error in finding that the district court did not have jurisdiction to hear the case.

The second issue presented in the petition refers to the issue that the court was wrong in concluding that the applicable parts of the Texas Family Code does not violate the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. The third argument states that because the appeal was made prior to completion of the case, the automatic stay may have nullified court rules regarding the trial court’s findings of fact and conclusions of law, as well as its ability to amend a prior order. These procedural issues might shed some light on the lower court’s rationale and the potential for legal errors that might need correction, but the larger issue is equal protection under the law. If the J.B. petition made it all the way to the U.S. Supreme Court, equal protection under the law will be the central issue there as well. For now, the drama will likely continue to take place within the state courts as the Texas Supreme Court considers the issues.


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