Today, the Texas Court of Appeals for the Fifth District, located in Dallas, ruled that a same-sex couple that had married in Massachusetts could not legally seek a divorce, following their move to Texas. The case, entitled In re the Marriage of J.B. and H.B., was appealed by the state following a victory in the lower court in which the judge had granted the two men a divorce and declared Texas’ mini-Defense of Marriage Act (mini-DOMA) as violating the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. The state argued that since Texas did not recognize the men’s marriage as valid, they were not eligible for the remedy of divorce. Specifically, Texas claimed that the courts did not have jurisdiction, or the right and power, to even hear the case and thus it should be dismissed.
The Appeals Court looked to the language of the Texas mini-DOMA in deciding that it was clear that the legislature intended to declare same-sex marriages illegal and thus the court could not acknowledge their existence, even for the purpose of granting a divorce from a legal marriage in another state. The court denied the principle of comity, which requires that courts in one state give effect to the laws of another state, stating that it would not extend comity to other states, if doing so would violate Texas public policy. The court rejected rulings from other states, including New York, which allowed such divorces, even though same-sex couples may not yet legally marry in New York. It also stated that there was no fundamental right to same-sex marriage and that sexual orientation was not a suspect classification, denying that the mini-DOMA in Texas violated the Fourteenth Amendment. This ruling stands in sharp contrast to that issued by Judge Walker in the California Prop 8 decision, Perry v. Schwarzenegger, which held that such a right existed and that sexual orientation should be protected as a suspect class.
A second Texas case, in which a judge in Austin granted a divorce to a lesbian couple, is likely to be appeal by the State to the Texas Court of Appeals for the Third District, with one or both of these cases potentially winding up in the Texas Supreme Court.
The Texas case is but one decision in an ongoing judicial debate across the nation regarding how much deference states with no relationship recognition or even explicit laws on the books which deny any rights at all to same-sex couples must accord those states which allow such partnerships. Returning to the state that issues the marriage license is not an option for most couples as all states currently have a residency requirement for divorce. Generally, at least one half of the couple must live in the state six months or more in order for the state to grant a divorce. Relationship termination is an essential part of allowing both individuals to move on with their lives. Until the federal Defense of Marriage Act is repeal by Congress or struck down by the Supreme Court, couples will continue to be vulnerable during the most difficult period in their relationship.