Texas-Two Step: Same-Sex Divorce Before Marriage Equality?

A Texas judge ruled Thursday that a same-sex couple married in Massachusetts may file for divorce in Texas, even though that state does not recognize same-sex marriages. Dallas state District Judge Tena Callahan’s ruling also says:

The state prohibition of same-sex marriage violates the federal constitutional right to equal protection.

The Texas Attorney General argued that

because a gay marriage isn’t recognized in Texas, a Texas court can’t dissolve one through divorce,

but Judge Callahan said Texas

has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction.

And Dallas attorney Peter Schulte, who represents the man who filed the divorce points out that the Texas Family Code says:

the law of this state applies to persons married elsewhere who are domiciled in this state.

Schulte noted in his filing that

Black’s Law Dictionary defines a person as a ‘human being.’   

He also argued that the men had the right to divorce under Article IV, Section 1 of the U.S. Constitution, which states, in part, that

full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.

Judge Callahan deemed a portion of the The Family Code unconstitutional. That section prohibits the recognition of any same-sex marriage or civil union, and

it bars the state and cities from extending any legal protection or benefits that flow from such unions.

It appears that Judge Callahan does not consider divorce to be legal protection or benefit, and thus will grant the divorce.

44 Responses to "Texas-Two Step: Same-Sex Divorce Before Marriage Equality?"
Elliott | Saturday October 3, 2009 04:53 pm 1

Only in Texas.

Teddy Partridge | Saturday October 3, 2009 06:35 pm 2

The Texas Attorney General is an idiot. Hey, douchebag, it isn’t a “gay marriage” — it’s a marriage. Deal.

Lisa Derrick | Saturday October 3, 2009 07:07 pm 3

My head was reeling from this one.

eCAHNomics | Saturday October 3, 2009 07:08 pm 4

It’s a topsy turvey world.

newtonusr | Saturday October 3, 2009 07:11 pm 5

This is the state of Rep/Judge Louie Gohmert, so there’s nothing I cannot believe.

One of his most recent diversions into the logic explained here is this statement in May, 2009:

“We are going to borrow more money from the Chinese to possibly give them money back to create habitats for wild dogs and cats that are rare. There is no assurance that if we did that we wouldn’t end up with moo goo dog pan or moo goo cat pan.”

I am not the least bit surprised at this ruling. I am only surprised that it wasn’t accompanied by a ruling saying that Liberals/teh Gays/Democrats/Brown-Folk/wimmin are from another planet, and the chief responsibility of the federal government should be to ship them (us) back.

TexBetsy | Saturday October 3, 2009 07:11 pm 6

So can I get a gay divorce without ever marrying anyone? Can I marry another woman and then get a straight divorce? I am so confused!

Loo Hoo. | Saturday October 3, 2009 07:15 pm 7

Pretzel logic.

ratfood | Saturday October 3, 2009 07:16 pm 8
In response to TexBetsy @ 6

Diane Keaton’s character (Cousin Sonja) in “Love and Death.”

“I never want to marry, I only want to get divorced.”

Peterr | Saturday October 3, 2009 07:17 pm 9

I love the irony of the Texas AG arguing that the gay marriage must be preserved, saying to the couple “No divorce for you!”

This takes “defending the institution of marriage” to a whole different level.

Hmmm | Saturday October 3, 2009 07:18 pm 10

So does it now go up to whatever passes for a state Supreme Court in TX?

Suzanne | Saturday October 3, 2009 07:21 pm 11

i wudda thought that texas would be all behind the idea of ending this gay marriage — a marriage they find abhorrent and should be not permitted to continue. allowing them to divorce, well i thought the fundies wudda considered that a win in their column

ratfood | Saturday October 3, 2009 07:23 pm 12
In response to Hmmm @ 10


What I would like to know, is it possible to obtain a divorce in the state of Texas without the customary lethal injection?

eCAHNomics | Saturday October 3, 2009 07:24 pm 13
In response to ratfood @ 8

The definition of a bachelor: a man who never made the same mistake once.

Don’t have the attribution.

ratfood | Saturday October 3, 2009 07:25 pm 14
In response to eCAHNomics @ 13

That would describe me. Made lots of other mistakes, though.

eCAHNomics | Saturday October 3, 2009 07:28 pm 15
In response to ratfood @ 14

Congratulations! It took me two times to figure it out.

Yeah, there’s lotsa other mistakes, but you avoided a big one.

WRT gay marriage, I wish them well in their endeavors. Having said that the best cartoon I’ve seen on the subject: Middle aged man reading newspaper, wife comes into the room. He sez: Gay marriage? Haven’t they suffered enough already?

Lisa Derrick | Saturday October 3, 2009 07:42 pm 16

The idea that divorce is a “benefit” form a marriage is interested, though heaven knows I benefited from my divorce. Actually my ex did too, but in a different way.

Loo Hoo. | Saturday October 3, 2009 07:44 pm 17
In response to Lisa Derrick @ 16

How long were you married?

bmull | Saturday October 3, 2009 07:45 pm 18

I love watching bigots try to cling to an indefensible position.

ratfood | Saturday October 3, 2009 07:48 pm 19
In response to eCAHNomics @ 15

When he was running for governor of Texas Kinky Friedman answered a question regarding whether he supported same-sex marriage saying something to the effect of “Sure, why shouldn’t they be as miserable as the rest of us?”

eCAHNomics | Saturday October 3, 2009 07:48 pm 20
In response to Lisa Derrick @ 16

Your brain is better than mine. I can’t begin to get my brain around the thought process in this case.

eCAHNomics | Saturday October 3, 2009 07:50 pm 21
In response to ratfood @ 19

I actually used to know that. I have a good friend who lives in Houston. She considered voting for Kinky. She kept me apprised of some of his more “interesting” positions.

SunnyNobility | Saturday October 3, 2009 07:51 pm 22

No glowing future in TX politics for Judge Callahan.

ratfood | Saturday October 3, 2009 07:57 pm 23
In response to eCAHNomics @ 21

I didn’t realize until I looked up his wiki just now that he was born in Chicago.

Here is a link to the section on his political positions. I can agree with some of them. His stance on illegal immigration being a notable exception.

eCAHNomics | Saturday October 3, 2009 07:59 pm 24
In response to ratfood @ 23

I think my friend wanted to vote for him in a primary, not an election. A spoiler, protest vote. I don’t remember the details.

All I can say is: if you live in TX, how can you NOT vote for a candidate named Kinky?

eCAHNomics | Saturday October 3, 2009 08:02 pm 25
In response to ratfood @ 23

And he’s certainly been proven wrong about smoking bans. I saw a headline in the last couple of days that the reduction in disease owing to smoking bans has been larger than estimated. I didn’t note the link, as it was a confirmation of my prejudices.

But yes, Kinky had many sensible positions. A very good primary vote.

marymccurnin | Saturday October 3, 2009 08:03 pm 26

Divorce? Who would do a thing like that?

ratfood | Saturday October 3, 2009 08:07 pm 27
In response to eCAHNomics @ 25

He wound up with 13 percent of the vote. I suspect his relaxed view on various social issues is what hurt him, not the part about putting 20,000 National Guard on the border….

eCAHNomics | Saturday October 3, 2009 08:08 pm 28
In response to marymccurnin @ 26

You forgot the link.

What a sad story and reflection on the U.S.

Mile23 | Saturday October 3, 2009 08:08 pm 29

“The state prohibition of same-sex marriage violates the federal constitutional right to equal protection.”

Them’s the money words. :-) Loving v. Virginia all over again. Thank you judge Callahan!

The TX AG has to argue the state’s case against an appeal. If his reasoning is pretzel-logic, then it’s only because the TX law on the matter is pretzel-logic, not because the AG is lame.

billybugs | Saturday October 3, 2009 08:10 pm 30

Texas is one weird fucking state ,maybe it’s something in the water

eCAHNomics | Saturday October 3, 2009 08:12 pm 31
In response to Mile23 @ 29

Wiki needs an entry on pretzel logic, and not the one they have. I need many lessons on how twisted people think, so I can try to figure out what to do about it.

eCAHNomics | Saturday October 3, 2009 08:19 pm 32
In response to billybugs @ 30

All states are weird, though TX might win the prize if we could figure out how to devise the rules of the game.

In NY we have a gov who has all the apprearances of being clueless, black, legally blind, and Obama comes out publically for him not to run for reelection but he defied Obama (he gained office as Lt.Gov. when Spitzer self-destructed). He could well lose in a reasonably D state, depending on the R candidate. Meanwhile, the NYS budget is a closed door affair decided by 3 people. Pretty weird and dysfunction IMHO.

Millineryman | Saturday October 3, 2009 08:19 pm 33

Wow this has the potential to really explode some wingnut’s heads. Those who fight hate crimes that include sexual orientation, and marriage equality have been basing their whole approach on denying any civil rights to gays and lesbians. By allowing same sex divorce, this goes against everything they have based their fight on, a civil right for gay and lesbian citizens.

So what will they do? Try to ban divorce period? No way, they need to have the out for themselves. Start a movement to add constitutional ammendents to ban same sex divorce? Gosh that’s bizzare even for birthers and tea baggers.

Loo Hoo. | Saturday October 3, 2009 08:23 pm 34
In response to marymccurnin @ 26


eCAHNomics | Saturday October 3, 2009 08:24 pm 35
In response to Millineryman @ 33

It sure is hard to follow the logic. If there is logic.

Loo Hoo. | Saturday October 3, 2009 08:26 pm 36
In response to eCAHNomics @ 32

Won’t Paterson be primaried?

eCAHNomics | Saturday October 3, 2009 08:32 pm 37
In response to Loo Hoo. @ 36

Probably by Andrew Cuomo, NYS Attorney General. He has the best probability of winning gov, handicapping this far out, but the situation is weird to be sure.

I’d point out that Spitzer came to gov from atty general, and that Cuomo is the son of a former NYS gov and prez hopeful. As I said, weird.

Millineryman | Saturday October 3, 2009 08:36 pm 38
In response to eCAHNomics @ 35

Sometimes logic and conventional wisdom is challenged by circumstance, such as this case. I’m quite pleased by this turn of events.

Loo Hoo. | Saturday October 3, 2009 08:39 pm 39
In response to eCAHNomics @ 37

Ok, now I remember!

karendotcom | Saturday October 3, 2009 08:53 pm 40

I get it, they are positioning Texas as the best and biggest gay divorce destination on earth.

Texas – We’ll Divorce Anyone

Lisa Derrick | Saturday October 3, 2009 09:00 pm 41
In response to Loo Hoo. @ 17

seven years.

TheLeftNut | Saturday October 3, 2009 10:15 pm 42

Why this is good:

1. Reality. No gay couple with a firing brain cell would go to Texas to get a divorce. But this ruling DOES bring the arguement of gay marriages recognition on the front burner for (one day) a more just justice to overturn it thus legalizing gay marriage.

2. Common sense. Applying the law to something something that legally “does not exist” is nonsensical. Which bolsters any future argument.

Xenos | Sunday October 4, 2009 04:26 am 43

I can’t say this makes sense. The first step in granting a divorce is for the court to recognize that there was a marriage in the first place. Otherwise the parties can get an equitable ruling that will divide assets, just like business partners splitting up or unmarried partners splitting up. Divorce is very much a benefit that accrues only to married people, and is indeed one of the most important benefits.

The only exception to this was the first gay divorce in Massachusetts. It was issued a few weeks before the gay marriage law went into effect, but the judge made a judicial finding that the state policy was to recognize gay marriages and the standing of married couples to seek a dissolution under the divorce statute.

ThingsComeUndone | Sunday October 4, 2009 08:20 am 44

I think by granting a gay divorce Texas can’t now argue they can ban gay marriage.
But then again Idid once get a ticket for driving an off road vehicle on the road which is illegal and a ticket for speeding in a vehicle that can’t be on the road legally.
Much like this case I don’t see the logic behind the why

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