The legalization of same-sex marriage in some states leads inexorably to the problem of same-sex divorce, which is a real legal problem if the couple no longer lives, or never did, in the state where they got married and their current home state does not recognize the marriage to begin with. Such is the nature of a case in Texas.
The problem is that J.B. and H.B. are both men. The other problem is that they live in Texas. The two were married in Massachusetts in 2006, where same-sex marriage has been legal since 2004. They later moved to Texas, and now want to get divorced. Texas, however, won’t let them. And they cannot get divorced in Massachusetts either, because that state—like all states—has a residency requirement for divorce…
J.B. sought a divorce from H.B. in Texas in 2009, and a family court judge granted the petition, holding that Texas’ Proposition 2, which prohibited the court from recognizing a same-sex marriage, violated the due-process and equal-protection guarantees of the Constitution. But in 2010 a three-judge panel of Texas’ appeals court reversed the family court ruling, declaring that because same-sex marriages or civil unions are barred by a 2005 voter-approved amendment to the Texas Constitution and Family Code, Texas courts have no jurisdiction to grant same-sex divorces. Divorcing a same-sex couple would require the state to recognize that they were married in the first place. And this, the state says, it cannot do.
There are several such cases, which are going to reach the Texas Supreme Court in November. The state says they can just declare their marriage “void” rather than get divorced:
Texas counters that J.B. and H.B. are far from trapped in the legal oblivion just described. They have a perfectly valid option: They can ask that their marriage be declared “void.” In other words, the state is willing to declare that their marriage never existed in the first place. Thus while the men wish to check the “divorced” box, the state is offering a chance to check the “never married” box instead. No harm, no foul.
But this is a transparently flawed solution. The fact is that these two men were married. Texas is trying to retroactively declare that a marriage deemed valid in Massachusetts was never real. And while a state’s ability to be hostile and dismissive to the desires of same-sex couples is still under debate throughout this country, a state’s inability to be hostile and dismissive to the legal declarations of other states is a pretty settled matter.
Simply voiding the marriage creates its own problems. The spouses might have had children or accumulated joint property and debt. Extinguishing the marriage from its outset would flush those legal rights down the drain. Children who were born or adopted to such marriages, for example, could find their legal rights vis-à-vis their parents brought into question. A spouse who raised those children while the other worked or went to school, meanwhile, might have no claim to alimony. As one court has put it, retroactively invalidating marriages would “disrupt thousands of actions taken … by same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of … couples and their families, and potentially undermining the ability of citizens to plan their lives.”
But even that isn’t the most worrisome problem. Simply voiding a years-long, state-sanctioned marriage forces the couple to pretend that something as significant in their lives as their legal union never occurred. The state’s “attempt to ‘erase’ their lived history,” the ACLU and Lambda Legal brief argues, “is demeaning and demonstrates nothing more than a desire to express public disapproval of their constitutionally-protected intimate relationship.”
So the same people who say gays should never be allowed to get married now says that once they’re married they should never be allowed to leave.