Last Friday, the Texas Supreme Court announced plans to hear two cases in which same-sex couples married in Massachusetts are seeking a divorce in Texas. As of this time, Texas does not recognize gay marriage as a state. As reported by the Austin-American Statesman:
The cases, involving couples from Austin and Dallas, will be the first test of Texas’ ban on same-sex marriage since the U.S. Supreme Court determined this summer that marriage laws can be unconstitutional if they relegate legally married same-sex couples to second-class status.
Oral argument will be Nov. 5, and a ruling isn’t expected for months afterward.
Attorney General Greg Abbott argues that Texas law not only limits marriage to opposite-sex couples, it forbids any action — including divorce — that recognizes or validates a same-sex marriage obtained out of state.
Lawyers for the couples, two Austin women and two Dallas men who were married in Massachusetts, say Abbott lacks the authority to intervene in their lives because divorce is a private matter that does not obligate Texas to recognize same-sex marriages performed in another state.
But if Texas can deny same-sex couples the right to divorce, then the state’s ban on gay marriage should be overturned, the couples argue.
In a legal climate in which the Supreme Court of the United States this summer overturned portions of DOMA, the repercussions of acknowledging or denying a divorce for a state where same-sex marriage is unrecognized will be widespread. One aspect to be watched will be how children of same-sex couples will be addressed in regards to custody, visitation, and parents rights. The state may be able to address the issue as they would unmarried straight co-parents, but the murky waters of this issue are yet to be resolved. For the sake of children whose parents are going through a divorce, you hope the courts can delicately and deftly navigate the legal aspects involved. It will be even more crucial that our judges and lawyers approach these discussions with compassion and support in the proceeding months.