BREAKING: Texas appeals court upholds gay divorce, rules against AG’s office in Austin case

Posted on 07 Jan 2011 at 11:38am
Angelique Naylor

A state appeals court has upheld a divorce that was granted to a lesbian couple in Austin last year, saying Texas Attorney General Greg Abbott lacks standing to appeal the divorce because he intervened in the case too late.

“Because the State lacks standing to appeal, we dismiss this appeal for want of jurisdiction,” a three-judge panel of Texas’ 3rd District Court of Appeals wrote in its decision posted earlier today.

Travis County District Judge Scott Jenkins granted a divorce to lesbian couple Angelique Naylor and Sabina Daly last February. Naylor and Daly married in Massachusetts in 2004 before returning to Texas and adopting a child. Abbott’s office appealed Jenkins’ decision, arguing that judges in Texas cannot grant same-sex divorces because the state doesn’t recognize same-sex marriage.

Abbott’s office won an appeal last year of a same-sex divorce in Dallas, where the 5th District Court of Appeals ruled in his favor.

Jennifer Cochran, an attorney who represented Naylor, explains on her blog that the Austin appeals court’s decision doesn’t address the constitutional issues related to gay divorce:

The Appellate Court¬†dismissed the appeal for “want of jurisdiction” finding that the State was not a party of record and thus lacked standing to appeal.

So what’s this mean? Well this particular divorce was granted and upheld by the appellate court because the AG intervened after the divorce was granted orally by Judge Jenkins and because neither party raised constitutional challenges to the Family Code or the Texas Constitution.¬† If either party had, the appellate court would have most likely found that the AG did have standing and would have addressed the constitutional arguments in addition to the procedural ones.¬† So, we will leave the constitutional challenge for another day (or case).

Abbott’s office could now drop its appeal, request that the entire 3rd District Court of Appeals hear the case, or appeal the three-judge panel’s ruling to the Texas Supreme Court.

According to the Texas Tribune, Lauren Bean, a spokeswoman for Abbott’s office, said the decision “undermines unambiguous Texas law.”

“The Texas Constitution and statutes are clear: only the union of a man and a woman can be treated as a marriage in Texas,” she said, adding, “The Office of the Attorney General will weigh all options to ensure that the will of Texas voters and their elected representatives is upheld.”

More to come …

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