Although it hasn't gotten the attention given to Ted Olson and David Boies's challenge to California's Proposition 8 or the Gay & Lesbian Advocates & Defenders' challenge to Section 3 of the Defense of Marriage Act (DOMA), the attempt by a couple in Texas simply to get a divorce may similarly impact the ongoing legal landscape for marriage equality.
In a decision issued on Aug. 31, a three-judge panel of the Fifth District Court of Appeals in Dallas held that trial judges in Texas don't have the authority even to consider divorce applications from same-sex couples who were legally married in other jurisdictions.
Restrictions in the Texas Constitution – which was amended in 2005 to prohibit the creation or recognition of same-sex marriage – and in Texas family law code limitations on marriage, the court held, strip Texas courts of the authority to grant such divorces because to do so would recognize and give effect to same-sex marriages.
But, in a second part of the ruling the appellate court also held that those provisions of the Texas Constitution and family law code do not violate the Equal Protection Clause of the U.S. Constitution's 14th Amendment. This decision, although from a state and not federal court, runs counter to the recent decisions in the Proposition 8 and DOMA federal court challenges.
As the court wrote, ''This is an exceptional case that involves not only basic principles of subject-matter jurisdiction but also the constitutionality of Texas's laws concerning marriage.''
Subject-matter jurisdiction describes the power of a court to hear cases regarding the topic being considered. In this case, the court decided that the Texas family law code ''precludes a trial court from giving any legal effect to [the same-sex couple's] petition for divorce … and it deprives the trial court of subject-matter jurisdiction.''
Having decided that, the court went on to consider the other argument of the couple, as the court put it, ''whether the Texas laws compelling this result offend the [U.S.] Constitution.''
Unlike the court in the challenge to Proposition 8, the court here concluded, ''[A]lthough a person's sexual orientation does not affect his or her ability to contribute to society in general, it does bear on whether he or she will enter a relationship that is naturally open to procreation and thus trigger the state's legitimate interest in child-rearing.'' This determination all but concludes the court's eventual holding that the Texas provisions do not violate the U.S. Constitution.
Then, and also unlike the court in the challenge to Proposition 8, the court concluded that ''the precise rights claimed by [the two men seeking a divorce] are the right to marry a person of the same sex and the concomitant right to divorce.'' Because the right defined by the court was the right to marry a person of the same sex (as opposed to the right of two people to marry), the court determined easily that such a right is ''[p]lainly'' not a right ''deeply rooted'' in the country's history.
With those determinations in hand, the court concluded – because it found a rational basis for the laws – that the state's limitations prohibiting courts from considering same-sex divorces were constitutional.
The same-sex couple could seek review of this decision by the state's Supreme Court or, subsequently, the U.S. Supreme Court.