(So Texas recognizes same-sex marriages now? Go Texas! for now...--jef)
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Travis County gay divorce stands under appellate ruling
By Steven Kreytak | Friday, January 7, 2011
[This story has been updated since originally published with comments from lawyer Jody Scheske and a spokeswoman for Texas Attorney General Greg Abbott.]
An appellate court ruled today that Texas Attorney General Greg Abbott may not intervene in a Travis County same-sex divorce case, a finding that lets stand for now the divorce of two women who were married out of state but does not affect Texas’ ban on gay marriage.
A three-judge panel of the Austin-based 3rd Court of Appeals found that Abbott has no jurisdiction to appeal the case because his assistants did not file a motion to intervene until after state District Judge Scott Jenkins orally granted the divorce in February 2009.
There are certain circumstances where the state could enter a case after a judgment has been entered, including when state statutes are under attack, the court ruled.
“This case, on the other hand, is not a suit to declare a statute unconstitutional or enjoin its enforcement, but a private divorce proceeding involving issues of property division and child custody,” said the court’s opinion, written by Justice Diane Henson.
Henson is a Democrat. Justice Woodie Jones, a Democrat, and David Puryear, a Republican, joined her in the opinion.
Abbott’s lawyers could ask the entire 3rd Court of Appeals to hear the case or appeal the ruling to the Texas Supreme Court.
In a statement, Abbott spokeswoman Lauren Bean said: “The Texas Constitution and statutes are clear: only the union of a man and a woman can be treated as a marriage in Texas. The court’s decision undermines unambiguous Texas law.
“The Office of the Attorney General will weigh all options to ensure that the will of Texas voters and their elected representatives is upheld.”
Because the judges dismissed the appeal for Abbott’s lack of jurisdiction, the opinion did not rule on his lawyers’ arguments that because same-sex marriage is illegal in Texas, Jenkins lacked the authority to grant the divorce.
Henson wrote in the opinion, however, that there are “interpretations” of the law banning the validation or recognition of gay marriage “that would allow the trial court to grant the divorce without finding the statute unconstitutional.”
For example, she wrote, someone could argue that “the trial court is only prohibited from taking actions that create, recognize, or give effect to same-sex marriages on a ‘going forward’ basis, so that the granting of divorce would be permissible.”
Jody Scheske, who represents Angelique Naylor, one of women who obtained a divorce in Jenkins’ court, said: ““The most important thing for my client is she remains divorced and the agreement that she worked out with her ex spouse for the best interests of their child remains in place.”
Scheske said unless the Texas Supreme Court decides that Abbott has a right to intervene, the case will not result in broad legal test of Texas’ same sex marriage law or whether same sex couples may divorce in Texas.
“It’s unlikely to have an affect on anybody else’s case,” Scheske said.
The case involves the divorce of Naylor and Sabina Daly, who were married in 2004 in Massachusetts, one of five states where gay marriage is legal. They moved to Austin and adopted a son.
Naylor filed a divorce petition last year and in February Jenkins held a two-day hearing over the division of property and shared custody of their son. After Jenkins repeatedly encouraged the women to consider the best interests of their child and to settle the case, the women agreed to a divorce.
Jenkins made an oral ruling granting the divorce and told the women to return to his court in one month with final papers for him to sign.
The next day, Abbott moved to intervene in the case, arguing that Jenkins lacked authority to grant a same-sex divorce. Texas law not only limits marriage to opposite-sex couples, it forbids any action — including divorce — that recognizes or validates a same-sex marriage obtained out of state, an Abbott lawyer argued.
Jenkins refused Abbott’s request, chided the attorney general for failing to take the child’s well-being into account and issued a final divorce decree on March 31. Abbott appealed.
During oral argument at the 3rd Court of Appeals in December, Assistant Solicitor General James Blacklock argued that Texas law allows same-sex couples to legally dissolve their union through “voidance,” which divides property and is recognized nationwide.
Abbott also intervened when a district judge in Dallas, hearing a divorce petition of two men who were married in Massachusetts, found the state’s ban on gay marriage violated the U.S. Constitution’s equal-protection guarantee. The Dallas appeals court overturned the ruling in August, finding that gay couples cannot divorce in Texas. That decision is not binding on the Austin appeals court.
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