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What will the Texas Supreme Court do about gay divorce?

The Texas Supreme Court granted petition for review in two Texas gay divorce cases, In re J.B. and State v. Naylor. This means that the Court has agreed to hear the cases as to the merits of the issues raised. The Court has also scheduled oral argument for November 5, 2013, at 9:00 a.m. Oral arguments are webcasted live on the internet through the State Bar’s CLE website. We at O’Neil & Attorneys plan to watch the live webcast and live tweet our reactions to the arguments. So, follow us on twitter @oneilattorneys.

The question squarely before the Texas Supreme Court is the application of the Texas version of the Defense of Marriage Act contained in Texas Family Code section 6.204, which prohibits the state from giving effect to any judicial proceeding that “creates, recognizes, or validates a marriage between persons of the same sex… in this state or in any other jurisdiction” or that gives effect to any “right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex… in this state or in any other jurisdiction”. See statute here. The Texas statute prohibits Texas courts from giving full faith and credit to the laws of other states which grant same-sex marriages. The federal Defense of Marriage Act (DOMA) found in 28 U.S.C. section 1738C, allows state courts to disregard full faith and credit as it applies to same-sex marriages. J.B. and Naylor challenge the constitutionality of the Texas statute to prohibit a same-sex couple, married in another state but residing in Texas, to obtain a divorce in Texas courts. You can read the briefs filed by either side in both of these cases here: In re J.B. Case #11-0024 and State v. Naylor Case #11-0114.

Interestingly, Justice Ruth Bader Ginsburg became the first US Supreme Court justice to preside over a same-sex wedding ceremony last weekend. In a story by the Washington Post Ginsburg will be first justice to officiate at same-sex wedding, Justice Ginsburg stated, “I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship.” This could foreshadow the US Supreme Court’s take on the application of state laws, like the Texas statute, which refuse to acknowledge legal same-sex marriages from other states if a case on point were in front of the US Supreme Court. The In re J.B. case could be that case following the decision made by the Texas Supreme Court.

The question in Texas remains…. Will the Texas Supreme Court uphold Judge Tena Callahan’s (Dallas’ 302nd District Court) ruling declaring Texas Family Code section 6.204 unconstitutional? Or, will the Texas Supreme Court agree with the Dallas Court of Appeals decision In re J.B., 326 S.W.3d 654 (Tex. App. – Dallas 2010) reversing Judge Callahan and upholding the statute? Many rumors are swirling in legal circles over how the Texas Supreme Court may rule, but until they do, we will not know.