Greg Abbott argues DOMA decision doesn’t allow gay divorce in TX

Posted on 19 Jul 2013 at 1:54pm
Texas AG Greg Abbott

Texas Attorney General Greg Abbott

Texas Attorney General Greg Abbott, a Republican who announced this week that he’s running for governor in 2014, argued in a brief filed Thursday that the U.S. Supreme Court’s recent decision striking down a section of the Defense of Marriage Act doesn’t allow same-sex couples to divorce in Texas.

Abbott has intervened to block two same-sex couples who were legally married in Massachusetts from obtaining divorces. Appeals in both cases are now before the Texas Supreme Court, which requested a new round of briefs in the wake of the high court’s ruling in Windsor v. United States, which struck down Section 3 of DOMA as unconstitutional.

Abbott’s office filed its brief Thursday in State of Texas v. Angelique Naylor and Sabina Daly, a case involving a lesbian couple that was granted a divorce by a Travis County district judge.

“Windsor does not empower one State to force every other State to recognize the marriage licenses it chooses to issue,” Abbott’s office wrote. “Only by ignoring Windsor’s extensive reliance on the States’ primary authority over marriage could Windsor be employed to attack Texas’s longstanding marriage policy.”

Meanwhile, attorneys representing a gay Dallas couple seeking a divorce filed their brief in the other case, known as In The Matter of the Marriage of J.B. and H.B. In 2009, Dallas County Judge Tena Callahan ruled she had jurisdiction to hear the couple’s divorce petition. But after Abbott intervened, an appeals court reversed Callahan’s decision.

James J. Scheske and Jason Steed, the attorneys representing J.B., argued in their brief that the case is about divorce, not marriage. However, Scheske and Steed said if the court determines that granting a divorce would violate the amendment, then the amendment is unconstitutional pursuant to the U.S. Supreme Court’s ruling in Windsor.

Scheske and Steed wrote that under Windsor, “any Texas law that targets same-sex couples, seeking to ‘impose inequality’ on them by treating their legal marriages as ‘second class,’ is unconstitutional.”

“Thus, the Court should either (a) hold that Texas law does not preclude Texas courts from hearing and granting J.B.’s uncontested petition for divorce or (b) hold that Texas law is unconstitutional to the extent that it purports to preclude J.B. from obtaining a divorce,” they wrote. “Either way, the Court should reverse the court of appeals’ decision and remand to the trial court with instructions to consider J.B.’s petition for divorce.”

Response briefs are due in the two cases by July 29.

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