U.S. Markets closed

Texas Supreme Court tackles same-sex divorce

KVUE-TV Austin Videos

AUSTIN, Texas (AP) -- The Texas Supreme Court is tackling whether a state that bans gay marriage can grant divorces to same-sex couples who married in other states.

The court heard oral arguments Tuesday on two cases of gay couples in Austin and Dallas. Both got married in Massachusetts and later wanted a divorce in Texas.

Texans approved a constitutional ban on gay marriage in 2005. State attorney general Greg Abbott argues that allowing Texas to grant a divorce requires recognizing the marriage.

The couple argues Texas can't dispute they got married and that the state's ban on gay marriage doesn't include divorce. The state countered that the only remedy for them is to declare their marriages void, as if they were never legal.

Pete Shulte is the attorney for a Dallas couple who filed for divorce in 2009.

“We had two people who agreed on everything about getting a divorce, and the Attorney General stepped in to keep them married,” Shulte said.  “If Attorney General Greg Abbot is so against same-sex marriage, why is he fighting so hard to keep these guys married?”

“I think the judges know what they have to do in this situation, and there should be no doubt,” said Jonathan Saenz with the conservative group Texas Values.

He believes the Texas Constitution is clear: same-sex marriage is not recognized in this state, so a same-sex divorce shouldn't be either.

“The goal of the homosexual advocacy side is to use divorce as a mechanism to undo our definition of marriage,” Saenz said.

Chuck Smith of Equality Texas believes a court can grant a same-sex divorce without recognizing the marriage.

“I would hope that people realize that divorce and marriage are not the same thing,” Smith said.  “The granting of the divorce is the legal process that's needed in order to divide property and deal with family issues like child custody.  There's no compelling reason the state should interfere with the divorces of these couples.”

Massachusetts requires same-sex couples married there to live in that state for six months before a divorce is granted. Gay rights advocates say heterosexual couples can get a divorce anywhere so same-sex couples should be able to as well.

The Texas Supreme Court is expected to announce a ruling on the cases in the next few months.