Obergefell and the State of Texas: The Lone Star Struggle with Equal Rights Continues

By Ryan M. Leach

This story, from the outset, is unremarkable. Two people meet and fall in love. They decide to get married. They buy a home. They start a family. Then, as is typical with many marriages, they run into troubled waters. Navigating the end of a marriage is a complicated thing, especially with a child involved. This story is unremarkable, except for one thing—the couple is two women.

Christina “Wren” Wren married her wife in Connecticut in 2011. Same-sex marriage did not become legalized throughout the U.S. until June 26, 2015, when the Supreme Court ruled bans on same-sex marriages unconstitutional in the case of Obergefell v. Hodges. Up to that point, gay couples would have to selectively marry in the states that allowed the unions. Even then, same-sex marriages were considered completely void in other states that had banned them until the Defense of Marriage Act was struck down in June of 2013 in the seminal case United States v. Windsor. As a result, marriages were recognized only by federal government organizations like the IRS, etc. These decisions were pivotal moments in American history that came on the backs of decades of work by and on behalf of lesbian, gay, bisexual, and transgender civil rights. Marriage for many was the crowned jewel of LGBT equality, which once achieved would signify the end of the struggle. Indeed that is not the case. Marriage is a complicated union, and as Wren’s story will demonstrate, it can still be complicated for gay couples to get out of.

Wren and her wife bought a house after they wed and decided to have a child. As for many couples, both gay and straight, getting pregnant often requires medical assistance. The couple went through the expensive and arduous process of conceiving a child through the help of modern science. They were successful, and Wren’s wife carried their child. While pregnant the couple started having problems like many couples do. Wren’s wife decided to move into her mother’s house while they sorted things out. However, both women were committed to the pregnancy and the new baby. They both attended doctor’s appointments and lamaze. They had several joint baby showers. Wren drove her wife to the hospital, supported her through the labor and birth, and cut their daughter’s umbilical cord. Their relationship issues continued beyond the birth of their daughter, but both parents were committed to co-parenting. Wren cared for her wife and their daughter in the weeks after she was born and provided supplies to mom and baby. Wren provided childcare whenever she could, as did her mom and sister. The couple attended church together with their daughter and had her baptized with both families present before her six-month birthday. Co-parenting was going smoothly at first.

In October of 2014, just under a year after their daughter was born, the couple looked at the reality of their separate living situations and had a discussion about selling their home. Wren brought up formalizing the custody agreement for their daughter. It was at this point that their amicable separation took a not-so-amicable turn. Her wife did not want to discuss a custody agreement and no longer allowed Wren access to their daughter. Wren has not seen her since.

Wren’s legal remedies were limited. Prior to the Obergefell decision in June 2015, the law regarding same-sex divorce and custody was tenuous at best. She could have risked filing for divorce, but the likelihood of a bad outcome or even bad precedent being set by their case was high. With her eye on the Supreme Court, Wren decided to wait and see what would happen with the law. When the Obergefell decision came down and retroactively legalized her marriage in Texas, Wren gained legal recourse to ask for joint-managing conservatorship of her daughter by filing for divorce. She requested that her wife be named primary conservator. In an October 2015 hearing, opposing counsel filed a motion to dismiss Wren’s request alleging that Wren lacked standing as a parent under current Texas law. The judge agreed and ordered Wren’s petition for possession and conservatorship be dismissed. Wren could not be granted any form of custody of her daughter. Under the eyes of Texas law, as interpreted by the judge, Wren and her daughter were strangers.

Had Wren been a man and her relationship been of a heterosexual nature, the outcome of the case would have been very different. The Texas Family Code, which rules over disputes of parentage and custody, is gender specific rather than gender neutral. Throughout the code, references to a “father” and a “mother” are made. In fact, the code goes into a lot of detail specifying what does and does not qualify someone as a father. Interestingly, a penis is not a requirement. Had the court interpreted the family code using a gender-neutral standard as required under the Obergefell decision, Wren’s standing as a parent would not have been dismissed. In fact, on multiple occasions in the code, it describes the relationship Wren has with her daughter as qualifying her for parental standing. 1) She was married to her wife at the time of conception. 2) She consented to assisted reproduction. 3) Their daughter was born while they were married. For all intents and purposes, under the code, Wren is the lawful parent of her daughter if interpreted using the Obergefell standard.

This leads up to a nuance (and sometimes nuisance) of the law. Justice may be blind, but its interpretation is subjective. How judges rule and whether it truly comports with the law is subject to many things: location, politics, personal opinion, and language. In Wren’s case the judge interpreted the Texas Family Code literally despite the Obergefell decision which required him to do otherwise and also in opposition to an August 2015 directive from the Texas Department of State Health Services that required that issues like this one be interpreted in compliance with Obergefell, i.e. gender neutral. Now, Wren’s only recourse is to ask the Court of Appeals for reconsideration and reversal of the District Court’s ruling.

The other thing about justice is that it isn’t free. Wren continues to pay the mortgage on their jointly owned house in the face of mounting legal bills. “I love my daughter and I love my wife, despite everything that is happening. I will forever love her—I loved her enough to marry her and she is the mother of my child. If she is feeling stressed or under pressure, that will have a direct impact on our child. I don’t want our child to have a negative experience. I will always do whatever I can to help care for her. I truly just want to see her again,” said Wren when she sat down to discuss her case alongside her sister, Leslie Wren.

Leslie, along with Wren’s other siblings, Jill and Jimmy, is helping Wren with the legal bills resulting from this case. They have also started a GoFundMe campaign, which is linked below.

“We wanted to share our family’s story, because this is our family’s story, too—in the hopes that other families out there might not have to suffer a similar loss. The fight for LGBT equality did not end with Obergefell,” said Leslie.

“I am not going through all of this because I thought this case would get a lot of attention or change things for the country, although apparently it could. All I have ever wanted was to see my daughter again and be a part of her life. I was hoping that the Obergefell decision would have allowed that to happen, but I have learned that it wouldn’t be that simple,” added Wren.

The story of two people falling in love, getting married, and starting a family is unremarkable. Divorce is also unremarkable. For same-sex couples across the nation, being “unremarkable” continues to be a challenge. Wren’s appeal will happen in the coming months, and if things continue to go out of her favor, perhaps her case will be the next Windsor or Obergefell. And maybe someday we won’t need people like Obergefell and Windsor and Wren to make remarkable sacrifices in order for the rest of us to simply be unremarkable.

View Wren’s GoFundMe page at https://www.gofundme.com/wrenluvsdaughter

Ryan Leach is a community activist, lawyer, professor, writer, and humorist. You can email him at [email protected]