Texas takes on same-sex divorce

AUSTIN, Texas – Two same-sex couples who were legally married in Massachusetts urged the state Supreme Court on Tuesday to allow them to get divorced in Texas.

But a lawyer for Texas Attorney General Greg Abbott said allowing same-sex couples to divorce would violate the state’s ban on gay marriage, which prohibits any official act that would recognize or validate such a union.

“Under the Texas Constitution and the Texas Family Code, all same-sex marriages are void and unenforceable for any reason, including divorce, regardless of where the marriage was created,” Deputy Attorney General James Blacklock told the court during oral arguments Tuesday morning.

While they cannot divorce, same-sex couples can still legally separate in Texas by asking a judge to declare their marriage void, Blacklock said.

James Scheske, a lawyer for the couples, told the court that voiding a marriage would create a legal fiction because the process declares that the union never legally existed – telling other states, in essence, that the marriage they recognize as legal in fact never legally existed.

In a question echoed by several other members of the court, Justice Don Willett asked how a same-sex union could be dissolved without the court recognizing the marriage as valid, in violation of state law.

The state’s law banning same-sex marriage should not be construed to apply to divorce, Scheske replied.

“Marriage and divorce are separate and opposite from each other,” he said. “None of that has anything to do with divorce. That all relates to marriage.”

If, however, the state’s ban on same-sex marriage is used to deny his clients the right to petition for divorce, then there is a constitutional problem, Scheske said.

“Forcing a targeted group of citizens into a separate and unequal court procedure is never constitutional, and that’s what happens here,” he said.