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Texas Court: Don’t Mess With Marriage


Earlier this week, an appeals court in Texas ruled that Texas courts do not have jurisdiction to grant divorces to same-sex couples married in other states. The principle is simple: no valid marriage, no divorce. The Rhode Island Supreme Court issued a similar ruling a few years ago. The Texas court did note that the couple can get a declaration that the marriage is void, which would have the same effect as a divorce in ending the legal relationship.

The couple involved in the case had also raised the exact same legal challenges to Texas’s marriage amendment that were brought in the Proposition 8 case, arguing that the amendment violates the Fourteenth Amendment of the U.S. Constitution. The Texas Court of Appeals issued a ruling entirely at odds with Judge Vaughn Walker’s opinion.

Where Judge Walker said gays and lesbians constituted a specially protected class, the Texas decision said there really are differences in the classes affected by the marriage laws: “The persons singled out and favored by Texas’s marriage laws, namely opposite-sex couples, have such a distinguishing and relevant characteristic: the natural ability to procreate.”

Where Judge Walker said that the right to same-sex marriage is fundamental, the Texas decision noted that the key right-to-marry case, Loving v. Virginia (invalidating an interracial-marriage ban), “involved a marriage between a man and woman.” The court also held that “the purported

‘right to marry a person of the same sex’” requires first “asserting that marriage includes the union of two persons of the same sex,” and concluded: “A fatal flaw in this position is that it assumes the truth of the proposition to be proved.” To the claim that same-sex marriage is rooted in the nation’s history and tradition, the court responded, “Plainly, it is not.”

Where Judge Walker believed the only rationale for defining marriage as the union of a husband and wife was animus, the Texas decision found legitimate state interests in doing so:

— “The state has a legitimate interest in promoting the raising of children in the optimal familial setting. It is reasonable for the state to conclude that the optimal familial setting for the raising of children is the household headed by an opposite-sex couple.”

● “Because only relationships between opposite-sex couples can naturally produce children, it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage.”

● “The legislature could reasonably conclude that the institution of civil marriage as it has existed in this country from the beginning has successfully provided this desirable social structure and should be preserved.”

● “The state also could have rationally concluded that children are benefited by being exposed to and influenced by the beneficial and distinguishing attributes a man and a woman individually and collectively contribute to the relationship.”

The Texas court concluded that the Lone Star State’s marriage law does not “violate the Equal Protection Clause of the Fourteenth Amendment, a provision never before construed as a charter for restructuring the traditional institution of marriage by judicial legislation.”


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