Texas appellate court hears oral argument in same-sex divorce case

A Texas appellate court heard oral arguments this week in a same-sex divorce case. Publicly available news coverage conveys a sketchy idea of questions arising under state law and the federal constitution. Mainstream media repeat prepared press statements by attorneys. (AP / UPI / Dallas News / Texas Lawyer Blog / Am Law Daily ) The Dallas Voice affords an outstanding exception to unsatisfactory news reports. (The Texas Lawyer probably does a good job at reporting, but I can not judge, because I do not subscribe to it.) I rely on the briefs to summarize the procedural path to appeal, and to summarize the underlying legal arguments by parties on both sides. The legal issues warrant this level of attention. I also conclude that divorce equality under the constitution unavoidably implicates marriage equality. I may be wrong, of course, so I welcome comment.

On October 1st, a Dallas judge ruled that that her court has jurisdiction to hear a divorce suit by a same-sex couple - identified as J.B. and H.B. - who had married in Massachusetts. Judge Tena Callahan found that the court has the power to divorce the couple, notwithstanding Texas' constitutional and statutory bans on same-sex marriage. To the extent that these bans would deprive the court of this power, she found that they violate the 14th Amendment's guaranty of equal protection. She also rejected a motion to intervene by state Attorney General Greg Abbott, who contended that bans on same-sex marriage limit the court's jurisdiction to voiding the marriage. (Texas Lawyer) The next day, Abbott filed a notice of appeal, seeking relief in the state 5th District Court of Appeals. On December 7th, Judge Callahan issued findings of fact and conclusions of law. (Tab 4, Attorney General's brief) Amending her October 1st order, she further ruled that due process under the 14th Amendment protects the right to divorce of married same-sex couples, and that prohibiting divorce would unduly burden their constitutionally protected freedom of association and right to travel.

The parties to the appeal disagree about whether Texas state law allows same-sex couples to divorce. If the law does not allow same-sex divorce, parties disagree about whether it would violate the federal constitutional protections of same-sex couples, although neither party had raised these constitutional questions. Abbott argues that by banning same-sex marriage state law must also ban same-sex divorce - without violating the U.S. constitution. J.B.'s attorneys argue that the prohibition on same-sex marriage has no bearing on eligibility for divorce, but that if the appellate court addresses the constitutional questions Callahan decided, a divorce prohibition would be unconstitutional.

Abbott failed to convince the appellate court that it could dispose of the case without oral argument, by reversing Callahan's decision and granting the Attorney General's position on the court's jurisdiction. (Attorney General's brief) The proper remedy for the couple, he maintains, involves voidance of the marriage, not divorce, because Texas law applies to couples who reside in the state, and the law does not recognize same-sex marriage, even if laws of other states do. And while neither party asked Callahan to rule on federal constitutional protections, Baker v. Nelson 409 U.S. 810 (1972) still has binding effect. In Baker, the U.S. Supreme Court upheld a decision by the Minnesota Supreme Court that excluding same-sex couples from marriage does not violate due process and equal protection under the 14th Amendment. Baker applies to this case, because "divorce is the enforcement mechanism for marriage," so that if it is not unconstitutional to ban same-sex marriage, it can not be unconstitutional to void, rather than divorce, a same-sex couple. Abbott also claims that Texas law does not restrict J.B.'s freedom of association or right to travel: "it simply refuses to extend legal enforcement to the promises and commitments outside the legal institution of marriage." Finally, he claims that Callahan's decision implicitly violates section 2 of the federal DOMA. On his account, section 2 reinforces Texas' right, under the Full Faith and Credit Clause of the constitution, not to give "legal effect" to same-sex marriages through divorce.

(The Liberty Institute also filed a brief supporting the Attorney General, and participated in the oral argument.)

In their brief, attorneys for J.B. explain why the appellate court "need not hold that Texas' same-sex marriage policy is unconstitutional to affirm the trial court's exercise of subject matter jurisdiction in this case, despite the [Attorney General's] unfounded, and wholly politically motivated, arguments to the contrary." A divorce proceeding for J.B. and H.B. would not mean that the state recognizes the marriage policies of other states as its own. Granting a divorce would represent noting the validity of a same-sex marriage "under the laws where it was formed," rather than a judgment that the marriage was valid in Texas.

If the appellate court reaches the constitutional questions of Callahan's decision, J.B.'s attorneys argue that Baker does not have binding effect, because Baker concerned marriage, not divorce, and courts have distinguished the fundamental "liberty interests" in each. The summary nature of the Baker ruling, and case law since 1972, undermines the extent of deference it can receive. In addition, the most stringent test of constitutional review would apply to this case: the state must have a compelling reason not to allow same-sex couples to divorce. Under this "strict scrutiny" test, the federal constitution does not allow the state to bar a divorce proceeding for same-sex couple on the basis of sexual orientation, and guarantees such couples a right to divorce. The core of J.B.'s equal-protection argument is that voidance does not provide same-sex couples an adequate substitute for divorce, and that depriving them of means to divorce stigamtizes them. The state can identify no legitimate interest in imposing that kind of burden on same-sex couples who want divorces.

J.B.'s attorneys also argue that if Texas court can not divorce same-sex couples, the state would unconstitutionally infringe on J.B.'s right to travel. A divorce prohibition has no other purpose than to penalize married same-sex couples for moving to Texas, because it does not apply to married, opposite-sex couples. A divorce prohibition would also create "an atmosphere of hostility to their lawful unions designed to dissuade them from relocating to Texas, in circumstances whether they might otherwise consider moving here."

J.B.'s attorneys answer Abbott's argument that Callahan's decision implicity violates the federal DOMA. They say that the federal DOMA has no bearing on the constitutional right to divorce, or on equal protection of the law in access to divorce proceedings.

Whatever the merits of Abbott's constitutional arguments, they reflect more than the influence of "political motivation." Suppose the appellate court decides the case on constitutional grounds, and rules that equal protection and due process require Texas courts to hear same-sex divorce suits. While the right to divorce and the right to marry involve distinguishable constitutional interests, constitutional arguments for the right of same-sex couples to divorce would have the same force on their right to marry. I do not see how these arguments can be circumscribed. More importantly, neither does Abbott.