The Texas Supreme Court heard arguments Tuesday about whether the state can grant divorces to gay couples married elsewhere despite its own constitutional ban on gay marriage, in one of the first serious challenges to that 2005 amendment.
The plaintiffs are gay couples from Austin and Dallas who married in Massachusetts several years ago and later filed for divorce in Texas. The Austin couple was granted a divorce, but Attorney General Greg Abbott intervened in the Dallas case and won an appeals court decision blocking a divorce ruling.
Abbott, who is running for governor, says Texas' ban bars the state from recognizing same-sex marriages performed elsewhere, and thus, bars it from granting same-sex divorces.
The couples want the high court to uphold their right to divorce in Texas or to deem the state's gay marriage ban unconstitutional.
Their attorney, James Scheske, told the all-Republican court Tuesday that Texas' gay marriage ban doesn't bar same-sex divorces because divorce is covered under a separate section of family law. Furthermore, he argued that the state can't dispute that the couples were legally married elsewhere.
"Texas can't prevent its gay and lesbian citizens from getting married," and returning home, he said. "There's no dispute my clients were married."
Several justices asked how granting a divorce could not be an official recognition of marriage.
"Don't you have to presume there is a legal marriage (to grant a divorce)?" Justice Don Willet asked Scheske.
Willet also asked Scheske if Texas' gay marriage ban is "driven by irrational animus" against homosexuals.
Scheske argued that the gay marriage is unconstitutional because it treats same-sex couples as "second-class" citizens. In June, the U.S. Supreme Court overturned part of the federal Defense of Marriage Act because it treated same-sex couples unequally.
"If we haven't learned anything from U.S. Supreme Court cases the last 60 years, we should have learned that forcing a targeted group of citizens into a separate and unequal court procedure is never constitutional. That's what happens here," Scheske said.
Scheske also said if the women who were granted a divorce lose their case, the state would effectively force them to be remarried four years after they split.
Assistant Attorney General James Blacklock told the court that the only remedy for gay couples seeking to be divorced in Texas would be to have their marriages declared void, as if they were always improper.
But several justices questioned that position, noting that voiding a marriage is a different legal standard from divorce and could create confusion with other states.
States have long recognized marriages in other states that they might not condone themselves, such as those from states with different legal ages for marrying or standards for wedding close relatives, Justice Phil Johnson said.
Blacklock argued there's no way for Texas to grant a divorce to gay couples without conflicting with the state's constitutional ban on gay marriage.
"There can be no way to grant a divorce," Blacklock said. "There's no (same-sex) marriage here, so there can be no divorce."
The court is not expected to issue a ruling for several months.