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Hm.. should be interesting. I would think the explicit ban on same-sex marriages in the state cons ution would override any implicit promise made by the national cons ution.
CG: I thought this story put an interesting twist on the whole gay marriage debate.
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Dallas judge paves way for gay couple to get divorce
06:37 AM CDT on Friday, October 2, 2009
By ROY APPLETON/The Dallas Morning News
[email protected]
In a first for Texas, a judge ruled Thursday that two men married in another state can divorce here and that the state's ban on gay marriage violates the U.S. Cons ution.
Both a voter-approved state cons utional amendment and the Texas Family Code prohibit same-sex marriages or civil unions.
Although the case is far from settled, and the state's cons utional ban on gay marriage is a long way from being thrown out, Dallas state District Judge Tena Callahan's ruling says the state prohibition of same-sex marriage violates the federal cons utional right to equal protection.
Texas Attorney General Greg Abbott had intervened in the two men's divorce case, arguing that because a gay marriage isn't recognized in Texas, a Texas court can't dissolve one through divorce.
Callahan, a Democrat, denied the attorney general's intervention and said her court "has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction."
"This is huge news. We're ecstatic," said Dallas attorney Peter Schulte, who represents the man who filed the divorce. The man, identified in court do ents as J.B., asked that he and his former partner not be identified.
Schulte said that the ruling was a surprise and that he hoped to have a divorce order for the judge to sign in the "next few weeks."
In a prepared statement, Abbott said he would appeal the ruling "to defend the traditional definition of marriage that was approved by Texas voters."
His statement also said, "The laws and cons ution of the State of Texas define marriage as an ins ution involving one man and one woman. Today's ruling purports to strike down that cons utional definition – despite the fact that it was recently adopted by 75 percent of Texas voters."
Gov. Rick Perry, who pushed for the cons utional prohibition on gay marriage in 2005, expressed confidence that the ban would stand up to this challenge.
"Texas voters and lawmakers have repeatedly affirmed the view that marriage is defined as between one man and one woman," he said in a prepared statement. "I believe the ruling is flawed and should be appealed."
The men married in Cambridge, Mass., in September 2006 and later returned to Dallas.
J.B., citing "discord or conflict of personalities," sued in January to dissolve the union in what is believed to be the first such action in Texas.
"My client is ready to get on with his life," Schulte said. "We're ready to roll."
If the ruling were to stand, it would be a break from recent decisions elsewhere.
An Indiana judge last month denied the divorce of two women married in Canada, concluding it would violate Indiana law. And two years ago, the Rhode Island Supreme Court rejected the divorce of a lesbian couple married in Massachusetts. Neither Indiana nor Rhode Island allow same-sex marriage.
In March 2003, a Texas court became the first one outside Vermont to grant the dissolution of a civil union. The judge reversed his decision after a challenge by Abbott, a Republican.
Beyond Massachusetts, gay marriages are legal in Vermont, Connecticut and Iowa. In New Hampshire, a same-sex marriage law goes into effect in January. Maine legalized gay marriages this year, but opponents challenged the decision and the law is on hold pending the outcome of a vote next month.
Civil unions providing rights and responsibilities to same-sex couples are allowed in New Jersey. And domestic partnership laws provide spousal rights to same-sex couples in California, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon, Washington, Wisconsin and the District of Columbia.
In a court filing, Schulte challenged the state's opposition, saying its arguments were an attempt to "mislead this court in an effort to pursue the attorney general's own political agenda."
He cited wording in the state Family Code that "the law of this state applies to persons married elsewhere who are domiciled in this state. And he noted that "Black's Law Dictionary defines a person as a 'human being.' "
The Family Code section deemed uncons utional by Callahan prohibits the recognition of any same-sex marriage or civil union, and it bars the state and cities from extending any legal protection or benefits that flow from such unions.
The cons utional amendment, passed by the Legislature in 2005 and approved by an overwhelming majority of voters that November, defines marriage as a union between one man and one woman, and it prohibits the recognition of any other type of union.
In his filing, Schulte also wrote that the state "is obviously confused or worried that the court, by granting this divorce, would somehow open the floodgates for same-sex marriages to occur in the state. A divorce clearly ends a marriage.
"If a divorce is granted in the case, the court is NOT creating, recognizing or validating a marriage between persons of the same sex; rather the effect of a divorce immediately ends a marriage, which furthers the 'public policy' of this state as written in the Family Code."
Schulte also argued that the men had the right to divorce under Article IV, Section 1 of the U.S. Cons ution, which states, in part, that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state."
The clause "requires that a valid judgment from one state be enforced in other states regardless of the laws or public policy of the other states," he wrote.
In a filing, the attorney general's office rejected that argument, saying the clause "does not require Texas courts to recognize or give legal effect to marriages between persons of the same sex under the laws of other jurisdictions."
J.B. could not be reached for comment Thursday. After filing the lawsuit, he said the marriage, in which he took his partner's surname, "was not entered into lightly."
After 11 years together, the breakup is painful, he said.
But "I believe all people should have the same rights to do what they want to with their private lives."
http://www.dallasnews.com/sharedcont...1d5a0d50d.html
Hm.. should be interesting. I would think the explicit ban on same-sex marriages in the state cons ution would override any implicit promise made by the national cons ution.
Pretty much where I come out. I voted against the ban here in Texas, but it passed and that's now the law of the land. I dont' see how a state can dissolve a marriage that it doesn't recognize to exist. So in that sense I think the ruling is wrong. But I would hope that one day the voters of Texas would vote to remove the cons utional ban. I won't hold my breath though.........
amending a cons ution to include intolerence as law is bad thig?
I don't follow. What are you talking about?
I know for a fact that it's possible for gays to get married in Texas. I don't know if it's a sympathetic clerk in Austin or what, but I've seen the Travis County marriage certificate myself for 2 females.
A state law or cons ution cannot deny rights that are protected, explicitly or implicitly, by the Federal Cons ution.
If State cons utions could trump the federal cons ution, slavery might still be legal in some parts of the South.
The question -- to me -- is whether the Equal Protection Clause of the Fourteenth Amendment of the Federal Cons ution prohibits States from outlawing same-sex marriages. A big part of that question is how the notion of same-sex marriage is reviewed: is it an infringement on the fundamental right to marry or is it a gender-based or sexual orientation-based infringement. The former is subject to strict scrutiny, meaning that any law prohibiting same-sex marriage is, essentially, presumptively uncons utional; the latter is subject to intermediate scrutiny and more likely to meet cons utional muster.
It's possible for gays to get married in Texas -- a gay man can marry a gay woman. What's legally impermissible at this point is for a man to marry another man or for a woman to marry another woman. That's true if the men or women are gay or straight: if a straight woman wished to marry a straight woman right now in Texas (for whatever reason) it would be cons utionally prohibited.
But I'm stating that 2 females were legally married. I didn't say that a gay man and gay woman were.
Although one of the women has a name that can go both ways and is very butch.
This is more what I was talking about by "implicit". There's no set consensus on whether the 14th amendment actually protects gay marriage, and there's no binding precedent yet by SCOTUS.
SC is going to avoid the issue like the plague until absolutely necessary.
I'd construe the judge's ruling to be a decision that the 14th Amendment actually protects the rights of same-sex couples to marry and a conclusion that such protections trump positive law enactments to the contrary in inferior jurisdictions.
I absolutely agree with that.
I'm sure you're right here.
What do you think about the idea that the court can divorce a couple without somehow first recognizing that marriage? Seems like a shallow argument to me. One can't divorce without first being married, so it would seem that recognition of divorce mandates recognition of marriage.
I agree, and I honestly think that these guys still love each other and don't want to get divorced. I believe they are doing this in order to set legal precedent here in Texas as a backdoor (pun intended) avenue to upend the recently passed cons utional amendment. I believe this because it would be easier and cost far less if they were to just fly to MA or where ever to file for divorce, than to stay here and fight a prolonged legal battle just for the right to divorce.
We already know they are sneaky, since conservative leaders are telling us that all these sexuals on TV while seemingly funny are just infecting our children with the gay.
To be sure, the judge's decision is fraught with cons utional questions.
The marriage was legal where it was performed, so the couple is married in a legal sense. Among the cons utional questions presented by this scenario is whether the Full Faith and Credit Clause should apply to recognize a marriage such as this one when the couple moves from one state to another. That raises a cons utional question about whether the Federal Defense of Marriage Act, which allows states to decide whether or not to give effect to a same-sex marriage recognized in another state, runs afoul of the FF&C Clause -- basically, can the federal government affirmatively act to allow states to deny full faith and credit to certain laws, despite the Cons utional guarantees of full faith and credit?
I suspect that there's an agenda at play here, but it might take more than just travelling to Massachusetts to get a Massachusetts divorce. It might require that one or both of them re-establish residence in Massachusetts for some period of time, which might not be particularly easy (financially or otherwise). I don't know the requirements for getting a divorce in Massachusetts, though.
Yeesh. That would be an even bigger can of worms to open up. You would think that the courts would have to uphold the FF&C clause, assuming that this case falls under it. (Which, as a contract, it would seem to.)
Still, I think it would be cheaper to hire a lawyer by proxy to get some sort of special exception made for any type of residential requirements in MA, than to have TEXAS, recognize their marriage for long enough to dissolve it. Still, that is an angle I haven't thought of - divorce requirements in MA. I still think the route I took is a little more plausible, but you make an interesting point.
From about.com http://divorcesupport.about.com/od/s.../mass_laws.htm
And it seems that there's a residency requirement for all states... for instance, it's 6 months in California...To file for a divorce in Massachusetts, a couple must live together in the sate as husband and wife. One of the spouses must be a resident of the state if the cause for divorce occurred within the state. If the grounds for divorce occurred outside the commonwealth, the plaintiff must have lived in this commonwealth for at least one year prior to filing for divorce.
A judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the pe ion. The superior court has jurisdiction in proceedings under this code. [Based on California Family Code - Sections: 200, 2320]
They may have a certificate, but that doesn't mean they're legally married.
Assuming there is such a requirement (again, I don't know), were it considered to be a jurisdictional requirement, there would be no means to get an exception.
EDIT: the language cited above suggests to me that the requirement is jurisdictional.
I tend to agree with your hypothesis, but could see a reasonable cir stance for this couple to proceed in Texas without any specific agenda (other than dissolving their union).
Be that as it may, I still think that it would be easier to get MA to make an exception than to get TX to recognize gay marriage.
Eh, if they're residents of Texas then it's an issue that Texas courts should be dealing with. Maybe they do have an agenda; however, that doesn't diminish the fact that the courts have to deal with this issue anyways.
Well duh they're not legally married, but they are married until someone rats them out. It's not their fault that a lot of people in this state are ass backwards.
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