Will Texas’ Refusal to Grant Gay Divorces Be the Next Front in the Marriage-Equality Wars?

The law, lawyers, and the court.
Sept. 11 2013 2:25 PM

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?

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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-à-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.

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Sonja West is an associate professor at the University of Georgia School of Law.



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