Texas Forces Gay Couple To Stay Married

A case out of Texas demonstrates quite aptly the absurdity of the current patchwork quilt approach to same-sex marriage in the United States.

A recent case in Texas points out one of the problems that arise when one state won’t recognize the marriage laws of another:

DALLAS — Gay couples legally married in other states cannot get a divorce in Texas, where same-sex marriage is banned, a state appeals court ruled Tuesday.

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. Republican state Attorney General Greg Abbott’s office had appealed after Judge Tena Callahan, a Democrat, said she did have jurisdiction and dismissed the state’s attempt to intervene.

“Today’s court of appeals decision overruled the district court’s improper ruling, confirmed the constitutionality of Texas’ traditional definition of marriage and correctly found that Texas courts lack the legal authority to grant divorces to same-sex couples,” said Abbott spokesman Jerry Strickland.

Callahan also had ruled Texas couldn’t limit marriage to a man and a woman, but the appeals court said the state’s same-sex marriage ban 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 three Republican appeals court justices. “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, but wanted an official divorce. Schulte said Tuesday they had not yet decided whether to appeal to the Texas Supreme Court.

“We obviously disagree with the justices’ ruling, but we respect the process and respect the court,” Schulte said.

To be fair, it seems fairly clear that this was a “test case,” and a rather badly chosen one at that. If the facts had been different — if, for example, there were an child who had been adopted by both married partners in a state where gay couple adoption is legal, or if there were significant property disputes — then I think this would be a harder case to dismiss.

What this case does point out, though, is one of the problems with the current patchwork of gay marriage laws and bans littered across the country. A gay or lesbian couple from Iowa can get legally married under the laws of that state. However, if one of the partners learns from their employer that they have to move to a state that doesn’t recognize gay marriage, like Texas, then they are faced with the choice of either quitting their job or moving to a state where the legal relationship they have entered into will be null and void. In addition to whatever personal offense one might take at such a situation, it has significant legal consequences for property ownership and a whole host of other issues.

The patchwork is made worse by the Defense of Marriage Act, which in part provides as follows:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

This provision purports to be an exercise of Congress’s authority under the Full Faith And Credit Clause to “prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” While there is some dispute as to whether or not this is a proper exercise of Congressional authority under that clause, it has not, to date, been challenged.

Thus, we have a situation like the one that unfolded in the Texas case, and while this particular case does not strike me as an appropriate one to make the argument, it seems fairly clear that allowing a situation where fundamental legal rights that exist in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C. don’t exist in the other 45 states of the Union to continue is untenable in the long term.

FILED UNDER: Gender Issues, US Politics, , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. JKB says:

    Since the marriage doesn’t exist in Texas, why couldn’t they just go back to Massachusetts courts for the divorce?

  2. For a very simple reason — since they are no longer residents of the Commonwealth of Massachusetts, the courts would not have personal jurisdiction over either of them and any ruling it issued would be null and void.

  3. JKB says:

    Well, they seem to have gotten themselves into a fine mess.  In Texas, they aren’t married and so the separation can only be handled as two adults with mixed property.  In Mass, they are married but can’t divorce since they are not residents.  So they are free to enter into any future relationships in Texas without issue but should they remarry they are guilty of bigamy in any state that recognizes gay marriage.  And all this was by their own choice.
    But somehow this is Texas’s or any of the other 45’s problem?  In Texas you can walk down the street with a gun on your hip, in Massachusetts they’ll throw you in jail for even owning a gun without state approval.  And that right is actually in the Constitution.

  4. Pug says:

    I’ve lived in Texas for close to 30 years now and not once have I seen someone walk down the street with a gun on his hip.

  5. Jay Tea says:

    For a very simple reason — since they are no longer residents of the Commonwealth of Massachusetts, the courts would not have personal jurisdiction over either of them and any ruling it issued would be null and void.

    Assuming facts not in evidence. The story does not say the men moved to Texas after they were married. In fact, it implies that they were Texas residents who went to Massachusetts in that window when the state’s Supreme Court ruled that gay marriage was legal. The most famous example I can think of is actress Jane Lynch.
    Mitt Romney tried to head this off when he was governor, invoking an old law that forbid marriages in Massachusetts when they would be illegal in the party’s home state. That got shot down.
    That’s why so many anti-gay-marriage activists pushed for DOMA, and a constitutional amendment specifically excluding marriage from the Full Faith & Credit clause — because all it would take would be one or more rogue judges (in Massachusetts, it was a bare majority of their supreme court) to set a policy that would be binding all across the United States.

  6. Like I said, the facts in this case were not exactly appropriate for raising the argument they did.

    Nonetheless, it’s not hard to imagine the scenario I outlined above regarding the Iowa couple.

  7. Jay Tea says:

    We already have a mishmash of laws governing marriage, especially in the areas of consanguinity and age of consent. What happens to those marriages when they cross state lines? (That’s a sincere question — I don’t know the answer.) Do we now let “lowest common denominator” rule in these areas, too?

  8. SP says:

    Wouldn’t it be nice if TX chose on it’s own to acknowledge the status from another state to nullify it?  What do these marriages do for income tax filings in states that don’t allow gay marriage?  It seems like history repeating itself.  The constitution was formed, “all men are created equal” blah blah blah.  You’re not part of that consideration if you were black or a woman.  US has a history of this selective discrimination that goes back before any of our grandfathers were born.

    Easy fix, a contract is a contract and allowed to be entered into regardless of sex, religion, race, education, intelligence.   Biases are the causes of wars, all of them.  Want to have a more peaceful world, stop applying bias in your life and in the lives of your children.  Applying bias to other people’s lives is simply snooping and interference. 

    Nemo me impune lacesset

  9. Jay Tea,

    With the exception of same-sex marriages, a marriage validly performed in State X will generally be recognized as valid by State Y even if it is of a type (i.e, First Cousin marriage) that state Y does not authorize under it’s own laws.

  10. Jay Tea says:

    Thank you, Doug. That’s… interesting.

    Definitely something I’ll have to take into account.