EL PASO, Texas — The Texas Supreme Court says it will consider whether the state has jurisdiction over same-sex divorces and the constitutionality of the state’s law banning same-sex marriage.
The court will hold oral arguments on Nov. 5 for two cases presented by Dallas and Austin same sex-couples who married legally in Massachusetts. Texas voters overwhelmingly approved a constitutional ban on gay marriage in 2005.
Texas Attorney General Greg Abbott said in a brief that the state would benefit from the court’s ruling on the issue and declaring the ban on same-sex marriage does not violate the U.S Constitution.
In one of the cases, a woman wanting to divorce her wife argues that Texas’ family code allows for same-sex divorce and the U.S. Constitution requires courts in Texas to grant her a divorce. The state intervened because, Abbot said in a brief, the Texas’ family code prohibits the state and its agencies from giving effect to any public record or judicial proceeding that creates, recognizes or validates marriage of persons of the same sex. By definition, Abbot continues, the divorce petitioner was asking the court to give effect to her same-sex marriage.
The other case, involving two men, also asks the court whether Texas family code is consistent with the U.S. Constitution and whether the section of the Texas’ family code that prohibits same-sex marriage can be interpreted to ban same-sex divorce as well.
One of the men wanting to be divorced argued in a court brief that it’s increasingly likely that more and more same-sex couples will file for divorce in Texas, and he said it’s important for a state Supreme Court to rule on the issue.
“Over 28 percent of the U.S. population lives in a jurisdiction where same-sex marriage is permitted. Texas is one of the fastest growing states — attracting thousands of migrants each year, including couples from those states that permit same-sex marriage,” he said in the brief.
The U.S. Supreme Court in June struck down parts of the Defense of Marriage Act because it treated same-sex couples unequally.
Abbot said in a brief addressing the recent U.S. Supreme Court rulings on gay marriage issues that Texas residents “voted overwhelmingly to affirm the traditional understanding of marriage and to recognize marriages between one man and one woman.”