A growing conversation about gay rights in one of the most
conservative states in the country will be amplified this year as the Texas
Supreme Court determines whether same-sex couples legally married in other
states can be granted a divorce in Texas.
The state constitution bans same-sex marriage but does not explicitly forbid divorce, leaving a loophole in the law that the highest civil court in the state will iron out beginning Nov. 5. The cases at stake, which are being considered together, involve two Austin men and two Dallas women who were married in Massachusetts and initially granted divorces in Texas that were challenged by Attorney General Greg Abbott.
The case could have "huge implications" for lesbian, gay, bisexual and transgender rights in Texas, said state Rep. Mary Gonzalez, the first LGBT-identified woman to be elected to the Legislature.
"Texas can't continue to have our blinders on and ignore the reality that other states are issuing same-sex marriage licenses and some of those couples are moving here," said Gonzalez, D-El Paso. "It is out of touch, unfair and unequal."
Abbott, who is running for governor, argues in a brief that state law bans any recognition of same-sex marriage, which he says includes divorce. He insists that a court ruling will affirm the constitutionality of Texas' ban on same-sex marriage, which was overwhelmingly approved by voters in 2005.
A spokesman for Abbott declined comment outside of the legal briefs he has filed.
The couples' lawyers say granting a divorce does not require Texas to recognize same-sex marriage and that Abbott doesn't have the jurisdiction to intervene, which the 3rd Court of Appeals agreed with in 2011.
The lawyers argue that their clients are asking for "equal treatment" that doesn't infringe upon state law and that is guaranteed under recent U.S. Supreme Court rulings. If the court finds the state has jurisdiction to deny the divorces, the lawyers argue, the ban on same-sex marriage should be ruled unconstitutional.
The U.S. Supreme Court ruled in June that a portion of the Defense of Marriage Act, which banned federal recognition of legally married same-sex couples, is unconstitutional. The couples' lawyers say this ruling supports their argument, but Abbott argues that it affirms the state's right to define marriage.
Nearly 50,000 same-sex couples live in Texas, and an estimated 6,000 of those are legally married, according to the Williams Institute, a national think-tank at the University of California at Los Angeles' School of Law dedicated to sexual orientation research.
At least 13 states and Washington, D.C., allow same-sex marriage, according to the National Conference of State Legislatures.
"Texas will be dragged kicking and screaming into the 21st century," said Karen J. Langsley, a Dripping Springs attorney who specializes in LGBT family law. "Texas needs to stop living in the Dark Ages. ... We deserve the same dignity as everyone else."
Langsley married her wife in Canada and has two children attending college.
She said inconsistent marriage laws between states hurt kids of same-sex couples the most and leave a "humongous question mark over the children's head."
Most states require residency to grant a divorce, leaving gay couples who are seeking a divorce and live in Texas or other states that ban same-sex marriage with few options. A few states, including California, have recently passed laws to grant divorces to couples married in their state, regardless of current residency.
Paul Castillo, an attorney for LAMBDA Legal, a national organization advocating for gay rights, said Texas "holds the key for these individuals being able to move on with their life."
"It's particularly ironic that Abbott is indicating that Texas doesn't want these couples to be married. ... But through prohibiting divorce, he is doing exactly that and forcing these couples to stay married," Castillo said.
Gonzalez, the legislator, said the timing of the case -- just four months before primary elections -- will amplify discussion about LGBT rights in Texas.
A ruling on the case is not expected until early next year.
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