A Texas state appeals court ruled that gay couples married in other states, where gay marriage is recognized, cannot attain a divorce in Texas, where gay marriage is not recognized, as reported by ABC News.
Two Dallas men, married in Massachusetts in 2006, had their divorce heard by district court Judge Tena Callahan, a Democrat, only to have it appealed by the office of Republican state Attorney General Greg Abbott.
Jerry Strickland, spokesperson for Abbott said, "Today's court of appeals decision overruled the district court's improper ruling, confirmed the constitutionality of Texas' traditional definition of marriage and correctly found that Texas courts lack the legal authority to grant divorces to same-sex couples."
Callahan had also ruled that Texas couldn't define marriage as only between a man and woman, while the appeals court mandates that the state's ban on same-sex marriage is constitutional.
Justice Kerry P. Fitzgerald, on behalf of three Republican appeals court justices said, "A person does not and cannot seek a divorce without simultaneously asserting the existence and validity of a lawful marriage. Texas law, as embodied in our constitution and statutes, requires that a valid marriage must be a union of one man and one woman, and only when a union comprises one man and one woman can there be a divorce under Texas law."
Callahan has been ordered by the appeals court to vacate her ruling. Known by J.B. and H.B., the male couple seeking the divorce, separated without issue two years after getting married.
Peter Schulte, attorney for J.B., states that the couple has no children or property to divide. Their sole reason for seeking the divorce was to make the termination of their relationship official. While considering whether to appeal this latest decision with the Texas Supreme Court, Schulte said, "We obviously disagree with the justices' ruling, but we respect the process and respect the court."
While Abbott's office went before a three-judge appeals court, claiming the couple wasn't eligible for divorce in their state because Texas doesn't recognize same-sex marriage, Jody Scheske, another attorney for J.B., argued that his client was entitled to a divorce as his was a valid marriage.
The appeals court agreed to end the union by having the marriage declared void.
Declaring divorce, instead of declaring their marriage void, J.B. argues, would allow for spousal support and the laws that govern community property. These policy arguments, stated the appeals court, are served by Legislature and not them.
Jennifer Pizer, with Lambda Legal, a law firm that promotes the equal rights for all gay, lesbian, bisexual and transgender persons, said, "It's deeply disappointing to see courts deny same-sex couples equal treatment under the law."
The ban on same-sex marriage has been in effect since 2005, by a three to one margin of Texas voters. The president of the conservative Plano-based Liberty Institute countered Pizer's remarks by saying that the latest ruling, "strikes down an activist judge's attempt to take the law into her own hands."
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