The Texas Supreme Court heard oral arguments yesterday regarding two separate cases where same-sex couples ask a lower district court for a divorce.
The couples were married in another state and now want to dissolve that marriage through a divorce here in Texas. What the court will have to decide is whether lower district courts can grant a divorce to same-sex couples without violating the Texas Constitution.
The Texas 5th Court of Appeals held that Texas residents may not file for divorce if they were married out of state and are of the same gender.
"This ruling forecloses my clients constitutionality right to petition for divorce in his state of residency and there for violates his rights under the 14th Amendment," said Austin attorney James Scheske, who represents the two couples.
He said the case is strictly about ending a marriage:
"Remember the class of person affected here: Texas resident, number one, married out of state, number two, three, same-sex marriage, and four, needing a divorce. It’s that fourth characteristic that separates the Texas Defense of Marriage Act from the constitutional right to divorce," Scheske said.
Scheske said the first three of those would violate Texas law, but the fourth doesn’t apply. But that’s not how James Blacklock from the attorney general’s office sees the case.
"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," Blacklock said.
Justice Don Willett questioned how a divorce would undermine a state’s policy regarding same-sex marriage.
Willett: "States have recognized marriages that they themselves would not have created or permitted."
Blacklock: "I think that’s generally right, it can be right when there’s not a strong public policy expressed against recognition of the marriage."
Blacklock said divorce recognizes a same-sex marriage and violates Texas law. Attorneys for the same-sex couples argue that states like Wyoming, a state that does not recognize same-sex marriages, allows for divorce of those residents.
Texas Supreme Court justices will discuss yesterday's arguments and will likely not return a decision until early summer of 2014.