Can Gay Couples Divorce Where They Can't Marry?

D-I-V-O-R-C-E can be pure "H-E-double L," as Tammy Wynette sang, but what if the government decides to get in the act and puts you in a legal and relationship limbo that promises to last for months, perhaps years. That is what is facing two Texas couples — a pair of men and a pair of women — who fell in love and married in Massachusetts and then fell out of love in Texas.

Texas appellate courts must now decide a vexing question: can couples who marry in a state that permits same-sex marriage get a divorce in Texas where the state constitution expressly forbids it? In Dallas, the male couple, simply known as J.B. and H.B. to protect their privacy, saw their amicable divorce case stall last October and head to an appeals court when Texas Attorney General Greg Abbott stepped in to call a halt to the process. Now, a lesbian couple in Austin has been put on notice that their divorce is being challenged in a second appellate court.

"The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman," Abbott said when a district court judge ruled in October that the Dallas divorce case could go forward. Abbott said the "ruling purports to strike down that constitutional definition — despite the fact that it was recently adopted by 75% of Texas voters," and added his office would appeal "to defend the traditional definition of marriage that was approved by Texas voters."

The amicable split was a private matter between the two men, says J.B.'s attorney Peter Schulte, but it has now become public spectacle, attracting the attention of the Liberty Institute, a Dallas-area conservative advocacy group, which filed a brief in support of the Attorney General's position. Waiting in the wings is a second case involving a lesbian couple in Austin. Sabrina Daly, 41 of San Antonio, and her spouse, Angelique Naylor, 39 of Austin, who were granted a divorce in February by District Judge Scott Jenkins, who approved a plan to unravel their complicated, intertwined financial relationship growing out of a home restoration business. "We didn't ask for a marriage; we simply asked for the courtesy of divorce," Naylor told the AP. Daly has declined to speak publicly, as have J.B. and H.B. Since the appeal filing, Naylor also has withdrawn from public comment.

Divorce procedures offer rules that allow couples to play by and reference as they move through the process, says Bob Luther, Daly's attorney. "If same-sex couple are not allowed a set of rules to apply to their dissolution of the relationship then that leads to unmitigated havoc," Luther says. Havoc ensued for his client on March 31. The divorce had been granted, the decree signed and the last legal step — the final order — was imminent when a representative of the Texas Attorney General's Office arrived in court to object on the grounds that the marriage was never legal in Texas. Judge Jenkins posed several questions to the AG's office: Did the AG really want to pursue this action since the state was already litigating a same-sex appellate case in Dallas? Had the AG's office given any consideration to the impact of the appeal on the couple's adopted four-year-old son and the custody arrangement included in the divorce decree? "The wise and merciful thing to do in this case is to simply leave these parties alone." Judge Jenkins told the Austin American Statesman after he signed the final order over the AG's objections.

In both cases, the AG's office has argued the marriages should have been voided under Texas law. "By pursuing an action for voidance, instead of divorce, the parties can quickly resolve this case and move on with their lives — without raising any unnecessary constitutional questions, or attacks on, the Texas Constitution, Family Code and the federal Defense of Marriage Act," according to a court filing by Abbott's office. But voiding the marriage, attorney Schulte says, does not allow the couple to adopt a legal property settlement. J.B.and H.B. had married in Massachusetts in 2006, J.B. later was transferred to Texas where the couple shared community property and developed the sort of intertwined financial relationship most heterosexual couples have.

The AG's office also suggested voidance would be appropriate in the Austin case, but Luther says it is vital in custody cases to give divorced parents a legal framework and recourse to a judge's oversight to address often mundane parenting issues. For example, U.S. law now requires children traveling overseas, even to Mexico and Canada, to have a passport and divorced parents must seek permission from their ex-spouse, or the judge in the divorce case before obtaining a passport — rules designed to prevent kidnappings in custody disputes.

The question of gay adoption by same-sex couples exposes an interesting fault line in Texas public opinion. Led by conservatives in the state legislature, Texas voters rejected same-sex marriage in 2005, but a later move by the same leaders to ban gay adoption fell short, notes Houston lawyer Mitchell Katine who was local counsel in the landmark U.S. Supreme Court case Lawence v Texas that struck down the state's sodomy laws. (Katine and his partner are the parents of two adopted children.) Only Florida bans adoption by same-sex couples, Katine says, and Texas laws are silent on the issue. Texas does not allow the names of two parents of the same sex to both be on the birth certificate, which is hurtful to the family, Katine says, and gay couples must go through a two-step process, first one parent adopting the child, followed by the second parent. "But it is not controversial," Katine says, "and there is not really any outcry."

Public opinion has softened on the issue, according to Rice University professor Stephen Klineberg, director of the longtime Houston Area Survey. In 1991, 19% supported gay adoption; by 2010 that had grown to 52%.

Luther, whose client is trying to cope with the prospect and likely six-figure costs of the appellate fight, says he has been surprised by the support he and his client have received from unexpected quarters. "I've got a whole lot of support from people I didn't expect," Luther says, people like his own father who is adamantly opposed to gay marriage. "But when you sit down and think about it these two people are hurting and they need to be able to get their lives settled so they can move on."

Meanwhile, just last week Luther received notice from the appellate court that the Austin case had been placed on the docket. For inside players, the dual track appeals may just complicate matters: one has been argued before the Fifth District Court of Appeals in Dallas, a conservative panel; the other will be heard at the Third District Court of Appeals in Austin, a panel that is less conservative. If their rulings — likely to take anywhere from three to nine months — come down and conflict, or if one party appeals, the case then goes to the Texas Supreme Court. "There is a great intellectual discussion going on among us lawyers and judges," Luther says, "but these [couples] are hanging on our every word."