Texas Supreme Court to Consider Gay Divorce

By Sunnivie Brydum

Originally published on Advocate.com August 26 2013 2:17 PM ET

The Texas Supreme Court will consider how to handle the divorces of legally married same-sex couples, while also considering the state's ban on marriage equality, reports the Associated Press.

The state's highest court will hear oral arguments November 5 regarding two cases — filed by a lesbian couple in Austin and a gay couple in Dallas — where same-sex couples who married legally in Massachusetts are now seeking a divorce in Texas. 

The state attorney general, who intervened in both cases, said the court's guidance will benefit the state as it works to determine how the Texas family code deals with same-sex divorce. 

In the case from Austin, a woman wanting to divorce her wife argued that the state is required to grant that divorce according to Texas family code and the U.S. Constitution, even though Texas doesn't recognize her marriage.

Attorney General Greg Abbott argued in a brief, however, that the Texas family code prohibits the state or any of its agencies from validating a legal relationship between two people of the same sex. Granting a divorce petition would, by definition, legally acknowledge the fact that the couple was married in the eyes of Texas law, Abbott's brief claims, according to the AP. 

The Dallas case poses a question of whether Texas family code is consistent with the U.S. Constitution and whether the state's voter-approved constitutional ban on same-sex marriage amounts to a ban on same-sex divorce as well. 

One of the gay men seeking a divorce in Dallas said the state Supreme Court needs to rule on the issue because an increasing number of people from marriage equality states are moving to Texas. 

"Over 28 percent of the U.S. population lives in a jurisdiction where same-sex marriage is permitted," the petitioner's brief said, according to AP. "Texas is one of the fastest growing states — attracting thousands of migrants each year, including couples from those states that permit same-sex marriage."