A Texas appeals court said Tuesday that gay couples legally married in other states cannot get a divorce in Texas, where same-sex marriage is banned.
The 5th Texas Court of Appeals ruled that a Dallas district court judge didn’t have the authority to hear a divorce case involving two Dallas men who married in Massachusetts in 2006.
The state had appealed after Judge Tena Callahan said she did have jurisdiction and dismissed its attempt to intervene.
Callahan also ruled that the state couldn’t limit marriage to a man and a woman, and the appeals court overturned that ruling as well, saying Texas’ ban on same-sex marriage was constitutional.
“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 on behalf of the appeals court. “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.”
The appeals court ordered the case be sent back to Callahan, who must vacate her order.
The men, known only as J.B. and H.B. in court filings, separated amicably two years after getting married.
J.B.’s attorney, Peter Schulte, has said the two men had no children and weren’t arguing over how to divide their property, they simply wanted an official divorce.
Schulte said Tuesday they had not yet decided whether to appeal the ruling to the Texas Supreme Court.
“We obviously disagree with the justices’ ruling, but we respect the process and respect the court,” Schulte said.
The Texas Attorney General’s Office had argued before the three-judge appeals court in April that the couple was not eligible for a divorce in Texas because the state didn’t recognize their marriage. Jody Scheske, another lawyer for J.B., argued that his client was entitled to a divorce because he had a valid marriage.
The appeals court agreed with Attorney General Greg Abbott that such unions could be dissolved by having the marriage declared void.
Among reasons J.B. argued for a divorce instead of a voidance were that spousal support and community property laws apply only in divorce cases. The appeals court said those issues are policy arguments that must be addressed by the Legislature.