Under Analysis- The eyes of Texas are a little bit blurry

   Civil rights for gay, lesbian, and bisexual people have been a topic of controversy recently – opinions on the matter vary, and the law reflects the variety of opinions.  For example, the status of the “Don’t Ask, Don’t Tell” policy has been a subject of legal contention for the last six months or so.   First, Congress attempted to repeal the policy but was not successful.  In a dramatic turn of events, a U.S. District Court Judge recently placed an injunction on enforcement of the policy.   Meanwhile, efforts to ban or legalize same-sex marriage have been in the spotlight for the last decade.  Some states have legalized it, while others have enacted laws or state constitutional amendments to ban it. 
   Often diversity of opinions can be a good thing.  However, a dilemma occurs when the law is diverse and one party views comity as abhorrent.  This is the dilemma in some cases of same-sex divorce.  What do we do when a same-sex couple travels to get married in a state that allows same-sex marriage and later seeks to end the marriage in a state that does not allow or recognize same-sex marriage?
    A case out of Texas brings the question to life.  Two men in Massachusetts were lawfully married and later moved to Texas.  Later, the men separated and sought divorce in Texas.  In the case In the Matter of the Marriage of J.B. and H.B., the state of Texas intervened to oppose the divorce.  In Texas, it is against the state constitution to recognize a same-sex marriage from other states.   The state of Texas argued in the case that since there was no same-sex marriage in Texas, there was also no same-sex divorce.   The idea behind not recognizing other same-sex marriages is to take the principle of comity off the table, so that married same-sex couples are not entitled to any of the benefits associated with marriage. One of the less well-known benefits of getting married is not the foot rubs, romantic dinners, or the oil changes, but getting divorced.
The trial court disagreed with the state’s argument, relying on the 14th Amendment’s equal protection clause – not dissimilar to its application in Loving v. Virginia.  Loving is the seminal case that forbid race-based legal restrictions on marriage. The Texas Court of Appeals overturned the trial court, finding that the law survived the rational basis test.  The rational basis was that the state of Texas had an interest in children being raised in heterosexual marriages.  The Court expressed the rational basis in the negative: “The state has decided that the general welfare does not require extending the same option [of marriage] to the members of other social units [i.e., same-sex partners].” 
   After hearing this news, I found myself thoroughly confused.  Between effectively continuing a marriage the state refuses to recognize and a rational basis test expressed in the negative, the first of which I’ve ever seen, I was a bit lost.  Luckily, I have a friend who I knew would be able to shed some light on the topic, and I gave him a call. 
   “Hello?”
   “Hi Texas, this is Michelle.  How are you?”  Yes, his name really is Texas.
   “Not great.  You’re not going to believe me, but I think I’m seeing ghosts.  You know I don’t even believe in ghosts.  I refuse to believe in ghosts.  Anyway, I don’t know whether I should shoot at them or not.  To shoot or not to shoot, that is the question.”  Texas lifted his ten-gallon hat to scratch his head.
   “ Well, Texas, I have kind of a similar question for you.  The same-sex marriage case – you heard of it?  It’s called In the Matter of the Marriage of J.B. and H.B.”
   “Oh yeah,” Texas said.  “They should have called it the alleged marriage – or given it a symbol like the one Prince had.”
   “Perhaps.  That is what I’m confused about.  The state actively intervenes in a pending same-sex divorce because it finds same-sex marriage objectionable, and the intention of that effort is to keep the marriage intact.  Then, the court applies the equal protection clause to the state’s constitutional ban on same-sex marriage by reminding us of the importance of heterosexual marriage.  The court then added that heterosexual marriage is not the same as same-sex marriage.   What do you think the case means?”
   “There is no case,” Texas said.
   “Um, I thought we had just talked about it being called In the Matter of the Marriage of J.B. and –”
   Before I had a chance to finish my sentence, Texas interjected, “—There is no case, there is no marriage, there is no Court, there is no Texas!”   Apparently, I had struck a nerve. 
   “Texas, I think we have a problem.”  Texas’ parents came close to naming him Houston, and I’m sure he’s glad he can avoid that cliché.      Unfortunately, I wonder how much he got messed with or asked if things really were bigger in his neck of the woods. 
   “You know what, I’m gonna shoot those ghosts,” Texas replied.  I suppose he was damned if he did, damned if he didn’t.
At least one of us got our questions answered.  I’m still wondering whether the benefit of being married is being single.

Under Analysis is a nationally syndicated column. Michelle St. Germain practices law in St. Louis, Missouri. You may direct comments or criticisms about this column to the Levison Group c/o this newspaper, or direct to the Levison Group via e-mail, at comments@levisongroup.com.
© 2010 Under Analysis L.L.C.

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