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Texas Court Rules Divorce of Gay Couple Off-limits

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The pace of progress for LGBT equality hit another bump in late August when a Texas appeals court ruled that gay couples legally married in other states cannot get a divorce here in Texas.

Judge Tena Callahan, a Dallas family district court judge, was overruled by the three-judge Fifth District Court of Appeals on August 31. She had issued a ruling earlier this year allowing two men who had married in Massachusetts to seek a divorce in Texas. State Attorney General Greg Abbott’s office appealed her ruling to the Court of Appeals.

“A person does not and cannot seek a divorce without simultaneously asserting the existence and validity of a lawful marriage,” Justice Kerry P. Fitzgerald wrote for the appeals court panel. “Texas law, as embodied in our constitution and statutes, requires that a valid marriage must be a union of one man and one woman, and only when a union comprises one man and one woman can there be a divorce under Texas law.”

Callahan is now required to vacate, or revoke, her order.

Dennis Coleman, the executive director of Equality Texas, an organization devoted to equal legal rights for LGBT people, immediately issued a statement saying the Republican court took an “extreme” view of the case.

“It’s not as if they wanted to just overturn the trial court’s decision,” he said. “They wanted to smash it into the ground and discourage anyone from ever filing a pro-LGBT suit ever again.

“The ruling harkens back to a view of the world from generations past, a world where lesbian, gay, bisexual, and transgender people were content to live in closets, and were afraid to demand to be treated with dignity and respect—dignity and respect that this court goes out of its way to completely deny.”

But the case between J.B. and H.B., the men listed in court filings, is about more than equal rights, said J.B.’s attorney Peter Schulte: it’s also a clear breach of the Full Faith and Credit Clause of the U.S. Constitution. The name refers to Article IV, Section 1, of the Constitution, which addresses the duty that states have to respect the “public Acts, Records, and judicial Proceedings of every other State.”

“Regardless of whether marriage is legal or not in Texas, you have to be able to adjudicate these cases [in Texas courts],” he said. “The purpose of [the Full Faith and Credit Clause] is to allow full freedom of movement between states, and states need to respect each others’ laws to be able to do that.”

Schulte compares the judgment to anti-race-mixing laws from before the 1960s, when many U.S. states prevented people of different races from marrying. The U.S. Supreme Court ruled in the now-famous Loving v. Virginia case in 1967 that such laws were illegal and unenforceable. — Josef Molnar

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