Faithandthelaw's Blog

The law as it relates to Christians and their free exercise of religion

Texas Appeals Court Hears Gay Divorce Case

Posted by faithandthelaw on April 25, 2010

The 5th Texas Court of Appeals listened to the lawyer of a gay man Wednesday argue that his client is entitled to divorce the man he married in Massachusetts.

In 2004, Massachusetts became the first state to legalize gay marriage.  In 2006, the men were married under Massachusetts law, but separated two years later.

Assistant Texas solicitor general, Jimmy Blacklock, argued for the Texas Attorney General’s Office saying that the men can’t get a divorce because Texas law does not recognize they are married.  The only option for the men is that their union be voided.

“The parties lack standing to file a divorce case because they’re not married,” said Blacklock. “If you are not party to a marriage, you cannot file for a divorce.”

Attorney Jody Scheske, representing the Dallas man seeking the divorce, said his client is not interested in overturning the state’s ban on gay marriage, but just wants to end his marriage.

“He is not seeking to enter into a same-sex marriage; he’s seeking to end a marriage that was valid,” Scheske said.

“The trial courts have the right to hear divorce cases from people who have valid marriages,” he said.

Blacklock told the judges that the state has been dealing with situations like this using voidance.

“Voidance is the remedy Texas has long provided to dissolve a void marriage,” he said.

Hiram Sasser, an attorney for the Plano-based Liberty Institute, told the judges that the issue of gay marriage should be determined by the people. And Sasser noted the people have already spoken on the issue.

Liberty Institute filed a brief with the court on behalf of the two Republican state lawmaker, State Rep. Warren Chisum and former State Sen. Todd Staples, who cosponsored the Marriage Amendment, known as Proposition 2, which says that marriage is limited to unions between one man and one woman.

“No state judge may take matters into his or her own hands and ignore precedent of the United States Supreme Court and the will of 76 percent of Texans who voted to reject same-sex marriage,” said Hiram Sasser, director of litigation for Liberty Institute.

In 2005, Texas voters passed a constitutional ban on same-sex marriage by 76 percent with over 2.2 million Texans voting in favor of traditional marriage, even though state law already prohibited gay marriage.

“Judicial restraint begins with the acknowledgement that it is the people who choose the public policy of Texas and it is their decision, not a judge’s, whether to change that policy in the future,” said Sasser.

“It’s a backdoor run at establishing same-sex so-called marriage against the people’s vote,” said Kelly Shackelford, chief counsel with the Liberty Institute. “Once you grant the divorce, you are recognizing that there was a marriage.”

In October, Dallas County State District Judge Tena Callahan ruled that the two men could divorce in Texas and also ruled that prohibition of same-sex marriage violates the right to equal protection under the U.S. Constitution.

Late last month, a Texas judge denied Abbott’s petition to intervene in another same-sex divorce case involving two women.  The judge in that case found that this case between the two men was already on appeal.

Courtesy of Christian Law Journal at

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