And now, a debate about gay divorce

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And now, a debate about gay divorce

Texas Hold ?Em

The state refuses to allow same-sex couples married elsewhere to get divorced. Is this the next constitutional showdown over marriage equality?

By Dahlia Lithwick and Sonja West

Updated Wednesday, Sept. 11, 2013, at 2:25 PM
The court papers don?t tell us all that much about what happened between the couple described only as ?J.B.? and ?H.B.? We can assume there once was love and then, at some point, there wasn?t. Their parting, we?re told, was amicable.

The problem is that J.B. and H.B. are both men. The other problem is that they live in Texas. The two were married in Massachusetts in 2006, where same-sex marriage has been legal since 2004. They later moved to Texas, and now want to get divorced. Texas, however, won?t let them. And they cannot get divorced in Massachusetts either, because that state?like all states?has a residency requirement for divorce.

Thus, unless they uproot their current lives in Texas and move to a state that will grant same-sex divorces, J.B. and H.B. are locked into their marriage. They are in perfect legal limbo. And they are in it together until death?or the state of Texas?do them part. Being trapped in a marriage one wishes to leave is a situation one court (referring to an opposite-sex marriage) once described as ?cruel and unusual punishment??placing the spouses ?in a prison from which there was no parole.?

J.B. sought a divorce from H.B. in Texas in 2009, and a family court judge granted the petition, holding that Texas' Proposition 2, which prohibited the court from recognizing a same-sex marriage, violated the due-process and equal-protection guarantees of the Constitution. But in 2010 a three-judge panel of Texas? appeals court reversed the family court ruling, declaring that because same-sex marriages or civil unions are barred by a 2005 voter-approved amendment to the Texas Constitution and Family Code, Texas courts have no jurisdiction to grant same-sex divorces. Divorcing a same-sex couple would require the state to recognize that they were married in the first place. And this, the state says, it cannot do.

On Nov. 5 the Supreme Court of Texas will hear arguments regarding whether the men?s constitutional rights are violated by not granting them a divorce. J.B. and H.B.?s case is actually one of two same-sex divorce cases now pending before the Texas Supreme Court. In a second case, the same-sex divorce was granted to a lesbian couple after a state appeals court determined that the state of Texas intervened too late.

These cases have placed Texas? highest state officials in the ironic?one could even argue rather romantic?position of fighting to keep two gay couples married to one another. Texas Attorney General Greg Abbott intervened in the J.B and H.B. divorce case, taking the position that ?because the Constitution and laws of the state of Texas define marriage as the union of one man and one woman, the court correctly ruled that Texas courts do not have authority to grant a same-sex divorce." Any other ruling, he said in a statement, would allow other states to impose their values on Texas.

This is not just a Texas problem. More than 30 states ban same-sex marriage by constitutional amendment or statute. While Georgia, for instance, explicitly bars same-sex divorce, Texas and most of the others prohibit only gay marriage. So J.B. and H.B. may well reflect the new frontier in the same-sex marriage wars: What to do about states declining to grant divorces to legally married couples? According to the brief filed by J.B., right now in the U.S., ?over 28 percent of the U.S. population lives in a jurisdiction where same-sex marriage is permitted." He adds that "Texas is one of the fastest growing states ? attracting thousands of migrants each year, including couples from those states that permit same-sex marriage."

Texas, meanwhile, takes the position that being forced to recognize same-sex divorce is no different from being forced to accept gay marriage. In an amicus brief filed before the state Supreme Court on Texas? side of the case, a Republican state legislator contends that ?this lawsuit demonstrates that opponents of traditional marriage want to exclude the people of Texas from the legislative process ? and then they want to exclude the legal representative of the people of Texas, the Attorney General of Texas, from the judicial process.?

For his part, J.B. contends that no one is asking Texas to issue any same-sex couple a marriage license or to afford them any of the benefits of being married in Texas. Marriage and divorce are different beasts, he claims. And nothing in the text or intention of the Texas ban on same-sex marriages is violated by allowing them to divorce. Daniel Williams of Equality Texas, the statewide LGBT advocacy group, says that ?granting a divorce is not creating a marriage. In fact the law is very clear: the ability to get a divorce is a benefit of living in Texas, not a benefit of marriage.?

Instead, those in support of the men urge, Texas should be eager to seal the deal on the end of this relationship. ?The divorce of married same-sex couples furthers the purported public policy of Texas that same-sex couples should not live as ?married? in the State,? the ACLU of Texas and Lambda Legal argued in an amicus brief filed in the state Supreme Court. It would be ?astonishing? for the court to hold otherwise.

Seeking a legal decree of divorce is far from mere semantics or hyperbolic trouble-making by gay-rights activists. After the U.S. Supreme Court?s decision this past June in United States v. Windsor, J.B. and H.B. are in a marriage recognized by many states and the federal government. As long as they remain married, they are accruing rights and responsibilities to each other such as shared property and debt. Furthermore, the Internal Revenue Service recently declared it would recognize all marriages from places (like Massachusetts) that allow same-sex marriage regardless of where the couple currently lives. This means J.B. and H.B. must continue to file their federal taxes as ?married.?

But the constitutional rights at issue are also crucial. These men are, after all, seeking equal treatment under law and access to their court system, which the Supreme Court has declared to be a fundamental right. Without access to the courts, they are unable to divide property and debt, settle child custody matters, clarify rights to Social Security, retirement, and health benefits, or resolve other vital interests.
In addition to these practical considerations, there is an emotional interest at stake: A divorce decree brings finality and repose. It provides an opportunity to move on, because without a divorce these men are prohibited from remarrying. As Mary Patricia Byrn and Morgan Holcomb wrote last year in the University of Miami Law Review, denying same-sex couples a divorce implicates the ?due process trinity? of the right of access to courts; the right to divorce; and the right to remarry.

Texas counters that J.B. and H.B. are far from trapped in the legal oblivion just described. They have a perfectly valid option: They can ask that their marriage be declared ?void.? In other words, the state is willing to declare that their marriage never existed in the first place. Thus while the men wish to check the ?divorced? box, the state is offering a chance to check the ?never married? box instead. No harm, no foul.

But this is a transparently flawed solution. The fact is that these two men were married. Texas is trying to retroactively declare that a marriage deemed valid in Massachusetts was never real. And while a state?s ability to be hostile and dismissive to the desires of same-sex couples is still under debate throughout this country, a state?s inability to be hostile and dismissive to the legal declarations of other states is a pretty settled matter.

Simply voiding the marriage creates its own problems. The spouses might have had children or accumulated joint property and debt. Extinguishing the marriage from its outset would flush those legal rights down the drain. Children who were born or adopted to such marriages, for example, could find their legal rights vis-?-vis their parents brought into question. A spouse who raised those children while the other worked or went to school, meanwhile, might have no claim to alimony. As one court has put it, retroactively invalidating marriages would ?disrupt thousands of actions taken ... by same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of ... couples and their families, and potentially undermining the ability of citizens to plan their lives.?

But even that isn?t the most worrisome problem. Simply voiding a years-long, state-sanctioned marriage forces the couple to pretend that something as significant in their lives as their legal union never occurred. The state?s ?attempt to ?erase? their lived history,? the ACLU and Lambda Legal brief argues, ?is demeaning and demonstrates nothing more than a desire to express public disapproval of their constitutionally-protected intimate relationship.?

The U.S. Supreme Court, at least for now, has left the issue of whether to allow same-sex marriage to the states. That, however, is not the same thing as allowing Texas to pretend that the world outside its borders thinks as it does. A difference of opinion about same-sex marriage is one thing, but a willful embrace of an alternative reality?particularly by papering over the basic facts of individuals? lives?is quite another. States can?t rewrite the stories of their citizens? lives into works of fiction.

It is a sad fact of life that marriages?both gay and straight?sometimes end. It is a matter of dignity that extends beyond the current politics of same-sex marriage, to allow everyone the right to move on when they do.

Texas and gay marriage: Will Texas

I tried to bold the main arguments. What do you think? How do you resolve this problem?

AlyssaEimers's picture
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I feel bad for the situation that this couple is in. That said, I do think forcing Texas to offer same sex divorce is the same as forcing Texas to recognise same sex marriage. If it is going to be an issue that is left up to the States, then each State needs to be able to decide. In this situation, I believe it would be the State that offered the marriage in the first place's responsibility to offer the divorce.

Just in case anyone has forgotten from all the past debates on this issue, I think the ideal situation would be that it wasn't a State or Government issue, but a private one. If a legal partnership was not tied to marriage, there would not be problems like this.

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I agree. This should be Massachusetts problem. They should be petitioning Massachusetts to let them divorce since they are the ones that recognize it as a marriage. It is not a marriage in Texas.

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Just legalize gay marriage all over the U.S. and, with it, gay divorce will be legal. Problem solved. This isn't Massachusetts' problem, it's Texas' problem for sending their gay citizens to other states to validate their civil rights.

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Why would it be our "problem"? They no longer live here. We like having the lowest divorce rate. Your state can't get it's act together....your state can then figure out its own issues and work through its homophobia.

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Let me try to think of a different "Make Believe" Situation. Let's say for example New York made a law that insured all of its residents were entitled to $5,000 a year for the rest of their lives. If then someone from NY moved to a different state that did not have that law, you would not expect the other states to honour NY law? Back to the original situation, you think Texas should honour Massachusetts law because you agree with the law and think it is a good law, but if it was a different law, one that you did not agree with, you would not expect another State to honour the law of different States. Maybe it is not the best that this is a State issue (I am not sure), but it is currently a State issue. As long as it is the law in Texas that there is are no Same Sex marriages, it makes sense that there are also no Same Sex divorces.

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But that's not an equal comparison. Texas allows marriages in general don't they? They allow divorces don't they? This is a big problem in why it CAN'T be up to the states. I should be able to move to any state and have my marriage recognized and I'm allowed to move to any state and then get a divorce. It's pretty cool.

So let's put it this way Bonita...if your state allows everyone of different ethnic backgrounds to marry do you think it would be okay for Mass. to say we would not recognize that because we only want people of the same backgrounds to marry? Like Irish with Irish. Italian with Italian. No it wouldn't be and it's not fair in this instance. These people have every right to move to another state and have their legal marriage dissolved if needed. They shouldn't have to travel to Mass. since Texas already allows divorce within state lines.

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"AlyssaEimers" wrote:

Let me try to think of a different "Make Believe" Situation. Let's say for example New York made a law that insured all of its residents were entitled to $5,000 a year for the rest of their lives. If then someone from NY moved to a different state that did not have that law, you would not expect the other states to honour NY law? Back to the original situation, you think Texas should honour Massachusetts law because you agree with the law and think it is a good law, but if it was a different law, one that you did not agree with, you would not expect another State to honour the law of different States. Maybe it is not the best that this is a State issue (I am not sure), but it is currently a State issue. As long as it is the law in Texas that there is are no Same Sex marriages, it makes sense that there are also no Same Sex divorces.

No, I think TX should honor it because of the Constitution - not because I agree or disagree with it.

Slightly OT: In CA you can have 2 fathers listed on a birth certificate. For example, Neil Patrick Harris and his husband have 2 children. BOTH of their names are on the birth certificate as parent 1 and parent 2. So what position will TX take on this if the child(ren) move to TX someday? Can TX just decide the birth certificates aren't valid and the parents who are listed as the parents don't really have parental rights?

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Then your issue would first be to get it so that it is not a State issue, but a Federal one. As the laws stand right now, Texas does not have to recognise same sex marriages. That is the law. Not recognising divorce goes right along with that.

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My main problem is if the marriage is accepted at some levels, then there needs to be way for them to end it too.

In a semi related idea
I worked with a guy from India. He had an arranged marriage to his first cousin. Where we lived, it was illegal to marry your first cousin. His marriage was still valid. At that point they had been together 10 years and had 5 kids. It would have been ridiculous to say it wasn't valid.

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DP

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It is not up to one State to tell another State what is Constitutional. For example, Texas could not make up a law saying that you had the right to carry a gun in any place you wanted and create a document that stated you had the right to carry that gun wherever you wanted. Then expect if you moved to Mass., that Mass. would then have to honour that document. Even if Texas was proclaiming at the top of their lungs that the Constitution gave them the right to bare arms. Unless the Federal Government steps in, while in Mass. you have to obey the laws of Mass. and while in Texas you have to obey the laws of Texas.

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You can get rid of your out-of-state gun in Texas, but not your out-of-state spouse. That's sad. It reminds me of back when a woman couldn't divorce an abusive husband because adultery was the only legal reason to divorce. The government should have no say in whom you marry, or why you divorce.

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I think this situation helps illustrate how ludicrous it is to have marriage be a state issue and not a federal one. It simply doesn't make any sense. These guys are legally married, to expect them both to move and set up residence elsewhere on top of getting a divorce. Anyone here been divorced? I haven't but I know from friends (and my parents) that it's a stressful, unpleasant experience. Want to add moving to another state you already chose to leave to the mix? How about if you have kids? They have to move too?

This idea that the states should have control over this just stymies me.

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We have this loophole in Canada too, but it tends to be a larger problem because gay marriage is legal across Canada. So we're talking about gay couples who have moved to other countries - to the US, overseas or whatever. Then they split and want to divorce but the country they live in doesn't recognize same sex marriage, so they have to come back to Canada or go to a different country that does recognize their marriage to divorce. But the terms of their divorce settlement - child support, alimony, custody etc. are only recognized in countries that legalized gay marriage. It is very restrictive in terms of a gay couple living in any country they want. I would imagine that many gay couples just avoid those countries altogether when it comes to deciding where to move for jobs, etc.

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"ClairesMommy" wrote:

We have this loophole in Canada too, but it tends to be a larger problem because gay marriage is legal across Canada. So we're talking about gay couples who have moved to other countries - to the US, overseas or whatever. Then they split and want to divorce but the country they live in doesn't recognize same sex marriage, so they have to come back to Canada or go to a different country that does recognize their marriage to divorce. But the terms of their divorce settlement - child support, alimony, custody etc. are only recognized in countries that legalized gay marriage. It is very restrictive in terms of a gay couple living in any country they want. I would imagine that many gay couples just avoid those countries altogether when it comes to deciding where to move for jobs, etc.

I do think there's a huge difference between marriage laws from one country to another, and laws within one country.