No, Really. I Can't Quit You.

Angelique Naylor

Same-sex marriage is banned in Texas, and that means same sex divorces should be, too – so goes the argument of Attorney General Greg Abbott's office in the appeal of an Austin divorce granted earlier this year by Travis County District Judge Scott Jenkins.

Angelique Naylor and Sabina Daly were married in Massachusetts in 2004; they moved to Austin soon thereafter. In February 2010, the couple was in district court seeking to dissolve the union. After two days of testimony, Jenkins entered an oral judgment, affirming that the divorce was final.

Shortly thereafter, the A.G.'s Office tried to intervene in the case, arguing that the couple's divorce was a threat to the state ban on gay marriage. In arguments on Dec. 15 at the 3rd Court of Appeals, James Blacklock, representing the A.G.'s Office, argued that the divorce of one couple in Travis County could set a precedent for other gay couples to divorce here. "So everybody who is gay wants to come down to Texas to get a divorce because of this one judgment?" a skeptical Justice Diane Henson asked Blacklock.

"In Travis County it seems that is the law," Blacklock replied.

Naylor's attorney, Jody Scheske, who argued on behalf of the women, said the A.G.'s position was ridiculous: The women never sought to challenge Texas' ban on gay marriage. More importantly, he said, the laws banning marriage say nothing about banning divorce. The statutes talk about barring gay couples from any "going-forward state benefits" from a union but leaves out any mention of dissolution – and "I don't think anybody who has been through a divorce thinks a divorce is some benefit of marriage," Sches­ke said. The situation here is not at all unique: A couple gets married, moves, and then the union falls apart, and they seek a divorce in the state in which they live. The district court clearly had jurisdiction over the local divorce case, and, Scheske noted, the A.G.'s Office has never argued that the women were not legally married. 

Blacklock, however, said that clearly there has to be more going on here than just seeking a divorce. "It is a desire of same-sex couples to have their marriages recognized here," he said. There is no same-sex marriage here, and thus they cannot be divorced. That reasoning prompted more skepticism from Henson (who, with Chief Justice Woodie Jones and Justice David Puryear, made up the three-judge panel that heard the case): If the couple had dissolved their marriage in Massachusetts, and one of the women had gotten a judgment for child support and alimony from the other, and then that person had failed to pay the support and fled to Texas, the state of Texas would be fine with harboring that absconder?

Yes, said Blacklock – which is why gay couples should void their marriages via contracts that would bind future behavior. 

The justices also seemed unconvinced that the A.G.'s Office even has standing to intervene after Jenkins pronounced the couple divorced in February. Blacklock argued, however, that the divorce wasn't actually final until a month later, when various paperwork was filed; the oral pronouncement in February was not binding, he said. That, too, was met with skepticism from the panel of judges – "did you ever do any divorce work, in a previous life?" asked Henson – who noted that an oral judgment is usually considered final. Blacklock argued, however, that the underlying issue is that the women are trying to undermine the gay marriage ban, which should allow the A.G.'s Office to intervene, even after a judgment is rendered.

Scheske disagreed that the women were up to anything except simply seeking divorce. The A.G. "is not allowed to intervene any time it wants to," Scheske said. To buy the A.G.'s argument and allow that to happen, he said, would create a huge "expansion of executive power."

A ruling will likely come next year, though the court has no deadline to act.