Joanna L. Grossman

No Gay Divorcees in Texas: An Appellate Court Refuses to Dissolve a Same-Sex Marriage

By JOANNA L. GROSSMAN
Monday, September 13, 2010

Can a couple that marries in one jurisdiction get divorced in another? For most couples, the answer is yes, as long as they reside in the state where the divorce is sought. But for same-sex couples, the answer is no better than "Maybe" (and in many cases, it is clearly "No") due to the patchwork of inconsistent state laws regarding same-sex marriage.

This column will discuss a recent appellate court decision from Texas, In the Matter of the Marriage of J.B. and H.B., which illustrates the problem and its harsh consequences for many affected couples.

In re J.B. and H.B.

Two men -- known in court only by their initials, H.B. and J.B. -- were lawfully married in Massachusetts in 2006. Two years later, they moved to Texas; shortly thereafter, they separated.

J.B. then filed for divorce in a Texas court on grounds of "insupportability" -- Texas's no-fault ground for divorce. The statute permits divorce on this ground, on the petition of either party, if "the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation." J.B. included a typical prayer for relief in his complaint, seeking a division of community property, "other general relief," and the restoration of his birth surname.

H.B. filed no answer to the complaint for divorce, a typical (non)response for an uncontested divorce. But quite atypically, the State of Texas intervened in the action "to oppose the Petition for Divorce and defend the constitutionality of Texas and federal law."

The State's opposition, in a nutshell, was this: There is no gay marriage in Texas and thus, there is also no gay divorce in Texas.

Texas law not only forbids the celebration of same-sex marriage, but also declares such marriages "void" and forbids any state entity from giving "effect" to them. This law was passed in 2003, amid a flurry of similar laws in other states, to ward off the recognition by Texas of same-sex marriages from other states.

Despite the State of Texas's opposition, the trial court granted the petition for divorce. The trial court found that it had jurisdiction to consider the dissolubility of the marriage, and it also found that the laws purporting to forbid it to do so were themselves in violation of the Equal Protection Clause of the U.S. Constitution.

The Texas appellate court unanimously reversed the trial court's ruling. The appellate court held that the statutory law did not give Texas courts the jurisdiction to give effect to same-sex marriages from other states, even if the recognition was fleeting—in that the recognition of the marriage was only extended by the court on the way to the court's granting a divorce and thus dissolving the marriage. The Texas appellate court ruled, moreover, that the laws precluding such an exercise of jurisdiction were constitutionally valid -- contrary to the trial court's view.

The Consequences for Divorce of the Lack of Uniformity Among the States' Marriage Laws

If J.B. and H.B. had been a heterosexual couple, then their marital problem would have had an easy legal answer: divorce. They would have been permitted to marry in Massachusetts (which, of course, permits opposite-sex, as well as same-sex couples, to marry), regardless of whether they lived there at the time or not. Then, when they moved to Texas, they would have been permitted, as residents of Texas, to file for divorce in Texas. In this hypothetical scenario, the move to Texas would have had no effect on their marriage.

A few basic legal principles would have made that all happen smoothly for our hypothetical heterosexual J.B. and H.B.:

First, states (as opposed to the federal government) generally regulate marriage. They dictate how people get married, and whom they can marry. Though state laws differ in some of their particulars, none requires residency as a prerequisite for marriage. Thus, a couple from Kansas could marry anywhere, as long as they meet that state's eligibility requirements for marriage and jump through its particular procedural hoops.

Second, states do not enforce each other's marriage restrictions -- so a New Hampshire couple that cannot marry because New Hampshire law does not permit them to marry (for example, because they are first cousins) can still legally marry in any state that does permit them to marry.

Third, once celebrated, a marriage is generally considered valid everywhere, if it was valid in the place it was celebrated. So a Kansas or New Hampshire couple can, generally speaking, marry in Massachusetts and still be married when they return home or travel to any third state, as long as they followed Massachusetts's rules (substantive and procedural) for marriage when they got married. There are some exceptions to this rule, but for the most part, heterosexual marriages are portable across state lines.

Fourth, and finally, states tend to permit their courts to hear and rule on divorce petitions only if at least one party is a resident of the state. Thus, a hypothetical Rhode Island couple that marries in Massachusetts, but continues to reside in Rhode Island, must file a petition for divorce in Rhode Island's Family Court, rather than in the courts of Massachusetts (or any other state). Likewise, a Massachusetts couple who marries at home, but later moves to Texas, must file for divorce in a Texas court.

This system works reasonably well to facilitate weddings of people's choosing -- say, the "Grand Canyon Helicopter wedding," with after-party entertainment by real cowboys, offered by the Shalimar Wedding Chapel -- and to provide a forum for everyone in which to seek a divorce. After all, everyone is a resident somewhere.

But as a gay couple, J.B. and H.B. faced a significant snag. While heterosexual marriages are virtually always portable, same-sex marriages are rarely so. Only five states currently permit same-sex couples to marry. Most of the remaining states expressly forbid it and, like Texas, expressly forbid courts from giving same-sex marriages any form of recognition or legal effect. Only New York, as I explained in a previous column, currently straddles these two positions by disallowing the creation of same-sex marriages, but recognizing, at least for some purposes, those same-sex marriages that have been validly formed in other jurisdictions. (Although New York is alone in taking this approach, historically, this was the most common approach when dealing with interstate recognition of prohibited marriages.)

The five states that permit same-sex marriage would permit any resident same-sex couple to file for divorce, regardless of where the marriage took place. New York would likely do the same, although there are no appellate opinions dealing with gay divorce explicitly. But most, if not all, of the forty-four remaining states would refuse to grant a same-sex divorce.

A Similar Ruling Issued in 2007 in Rhode Island: Chambers v. Ormiston

Three years ago, the Rhode Island Supreme Court was faced with a question about gay divorce that was similar to the question raised by H.B. and J.B.'s Texas case. But there was a difference: In Rhode Island, unlike in Texas, there is no express ban on same-sex marriage (though the code's silence is interpreted to forbid it) or on its recognition. Yet, the court, in Chambers v. Ormiston, refused to permit a lesbian couple, one of the first to be legally married in Massachusetts, to obtain a divorce. (This case is discussed in greater detail in a prior column.)

The Rhode Island Supreme Court took a narrow view of the law. It held that the Family Court had jurisdiction over a same-sex marriage only if the legislature had intended the word "marriage" to include same-sex pairings when the Family Court was created in 1961. And since the legislature clearly did not contemplate same-sex marriage in 1961 -- since virtually no one did then -- the Rhode Island Supreme Court concluded that the Family Court could not exercise jurisdiction over a lesbian marriage even to decide whether to recognize this same-sex marriage long enough to dissolve it.

This ruling was misguided for several reasons, not least of all because it refused to address the real issue: Does the law in Rhode Island allow courts to give effect to a same-sex marriage from elsewhere, even though Rhode Island's own laws would not permit the celebration of such a marriage in the first instance?

The answer, given Rhode Island's marriage-recognition precedents, would likely have been yes. Rhode Island has no express prohibition on same-sex marriage, nor any affirmative policy against same-sex relationships. Principles of comity thus suggest that it ought to respect the decision of a sister state to celebrate a marriage, even though it might have made a different decision for itself.

Moreover, even if Rhode Island courts chose not to grant full recognition to a same-sex marriage from Massachusetts, precedent justifies granting incidental recognition—that is, recognizing the marriage long enough to dissolve it.

The Problem in Texas: Express Anti-Same-Sex Marriage Laws Can Be Argued to Cut Against Texas's Granting Same-Sex Divorces

The challenge for unhappy same-sex spouses is even worse in Texas than in Rhode Island. That is because, unlike Rhode Island law, Texas law clearly does forbid courts from recognizing same-sex marriages, even if they have been validly celebrated in another jurisdiction. In Texas, the traditional place-of-celebration rule was specifically repudiated for same-sex marriages. These laws were clearly designed to pretend that same-sex marriages simply do not exist -- at least, not in Texas.

An argument could be made that dissolving a same-sex marriage does not constitute "giving it effect"; it would, in fact, do just the opposite. One could also, and relatedly, argue that it might further the cause of anti-same-sex-marriage forces to be more free with same-sex divorces. But this, of course, is not how courts see the issue: They see granting a divorce as involving two steps -- first, acknowledging that a valid marriage exists; second, issuing an order to dissolve it.

This is the view that the Texas court took in J.B. and H.B. The statute barring any right "asserted as a result of a marriage" means that a claim for community property or an attempt to exercise any other spousal right cannot be granted. But even more harshly, the Texas court also held that the applicable statute "precludes any use of the marriage certificate" whatsoever. The trial court thus could not even deny the petition for divorce—it had to simply dismiss it for lack of jurisdiction. Under Texas law, courts simply cannot adjudicate gay divorces.

J.B. also argued that these laws violate the federal Equal Protection Clause by discriminating against gays and lesbians. The court rejected this claim, however. In its view, homosexuals are not a suspect class (that is, a class deemed by the U.S. Supreme Court to enjoy special constitutional protection) and thus, a law prohibiting same-sex marriage deserves no special scrutiny.

Furthermore, the Texas court held that the law banning recognition of same-sex marriages survives the more deferential "rational basis" standard of review. What was the purported rational basis for the law? According to the Texas court, the state has a legitimate interest in promoting the raising of children in married, heterosexual households, an end to which the court claimed that the Texas law is somehow rationally related.

The Texas court also held that the right to marry -- which is clearly protected by the Fourteenth Amendment -- does not extend to same-sex couples. The Fourteenth Amendment, according to the Texas court, has "never before been construed as a charter for restructuring the traditional institution of marriage by judicial legislation."

An Unsurprising Result Reveals the Important Role of Comity When It Comes to Marriage

The ruling in In re J.B. and H.B. is not surprising, given the staunch anti-same-sex-marriage position of the Texas code. Nor is it surprising that the Texas court refused to invalidate Texas's approach on federal constitutional grounds, although a very strong argument can be made that the court is wrong on this point. Certainly, the court is wrong to suggest that the Fourteenth Amendment does not curtail state power over marriage. The landmark 1967 ruling in Loving v. Virginia, which invalidated Virginia's ban on interracial marriage, staked out exactly that role for the Fourteenth Amendment -- and the courts that apply it.

But what this case really reveals is the difficulties of living in a world with non-uniform marriage laws, but without comity—that is, respect for the laws of sister states. By virtue of living in a state that does not honor this deeply important principle, J.B. and H.B. have two unappealing options: stay unhappily married, or move.


Joanna Grossman, a FindLaw columnist, is a professor of law and John DeWitt Gregory Research Scholar at Hofstra University. She is the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009), an interdisciplinary collection that explores the gaps between formal commitments to gender equality and the reality of women's lives. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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