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Third Court of Appeals in Austin hears oral arguments this week on gay divorce in Travis County

Court urged to void Travis County gay divorce

Not only is gay marriage illegal in Texas, so is gay divorce, state's lawyer argues.

By Chuck Lindell
Published: 10:35 p.m. Wednesday, Dec. 15, 2010

A state lawyer argued before an appeals court Wednesday that state District Judge Scott Jenkins violated state law and improperly exceeded his authority when he granted a divorce earlier this year to a same-sex couple.
Texas law not only limits marriage to opposite-sex couples, it forbids any action — including divorce — that recognizes or validates a same-sex marriage obtained out of state, said James Blacklock, a lawyer in Attorney General Greg Abbott's appellate division. He urged the 3rd Court of Appeals to invalidate the divorce.
"The people of Texas and their elected representatives have spoken very clearly on the issues of this case: Marriage consists solely of the union of one man and one woman," Blacklock said during oral arguments.
But lawyers for the women, who were married in Massachusetts, urged the three-judge appellate panel to preserve the divorce, saying Abbott has no authority to intervene in a case that ended months ago.
"Discrimination against gays and lesbians is really the last area in which state government openly discriminates against its citizens," lawyer Jody Scheske told the court. "If the attorney general's office has its way, we also would deny legal access to divorce."
The court panel — Republican David Puryear and Democrats Woodie Jones and Diane Henson — has no deadline for issuing its opinion. However it rules, an appeal to the Texas Supreme Court is likely.
After their 2004 wedding in Massachusetts, one of five states where gay marriage is legal, Angelique Naylor and Sabina Daly moved to Austin and adopted a son, now 5.
Naylor filed a divorce petition last year, leading to a "breathtakingly sad" two-day February hearing over the division of property and shared custody of their son, lawyer Robert Luther told the court. At the end, Jenkins made an oral ruling granting the divorce and told the women to return to his court in one month with final papers for him to sign.
The next day, Abbott moved to intervene in the case, arguing that Jenkins lacked authority to grant a same-sex divorce. Jenkins refused Abbott's request, chided the attorney general for failing to take the child's well-being into account and issued a final divorce decree on March 31. Abbott appealed.
During Wednesday's oral arguments, Scheske argued Abbott waited too long by intervening after Jenkins had orally granted the divorce.
Blacklock, Abbott's lawyer, argued that the divorce wasn't final until March, when the "sketchy" agreement read aloud the prior month was fleshed out in writing and signed by Jenkins.
"Don't you concede that final judgment was rendered that day when he said, 'You are divorced'?" Henson asked. Jones jumped in: "I seem to recall a lot of cases where, if the judge says orally, 'I grant your divorce,' you are now divorced — it is effective as of that instant."
Blacklock disagreed but added that Abbott can intervene anytime a Texas law, such as the same-sex marriage ban, is challenged. "It appears, at least in Travis County, that gay divorces are now legal. That's why we are in this case," he said.
Texas law, Blacklock added, allows same-sex couples to legally dissolve their union through "voidance," which divides property and is recognized nationwide. "This case is obviously about more than that," he said. "This case is about the desire of same-sex couples to have their marriages recognized as law."
Abbott also intervened when a district judge in Dallas, hearing a divorce petition of two men who were married in Massachusetts, found the state's ban on gay marriage violated the U.S. Constitution's equal-protection guarantee. The Dallas appeals court overturned the ruling in August, finding that gay couples cannot divorce in Texas. That decision is not binding on the Austin appeals court.

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