Friday, March 11, 2011

HB 2638: Create Loophole for Attorney General in Same-Sex Divorces

HB 2638 by Rep. Warren Chisum (R-Parmer, Bailey, Lamb, Castro, Swisher, Armstrong, Briscoe, Hall, Donley, Collingsworth, Childress, Gray, Wheeler, Hutchinson, Roberts, Hemphill, Lipscomb, Ochiltree and Hansford counties) would allow the State Attorney General to intervene in "a right or claim" stemming from a same-sex marriage or civil union within 90 days of a court decision regarding that "right or claim".

The bill is a response to Texas v. Naylor et, al., an attempted appeal of a same-sex divorce case out of Austin. In that case the local family court issued a final decree of divorce for Naylor and Daly (who were married in Massachusetts). The day after the final divorce decree the Attorney General's office, on behalf of the state (that's you and me), attempted to appeal the decision on the grounds that Texas Family Code section 6.204 states that:
"A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state. The state or an agency or political subdivision of the state may not give effect to a public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction; or right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction."
In other words: "Not only does the State of Texas not allow marriage equality, but anything even sort of like same-sex marriage will not be recognized by our courts and-we're-all-going-to-stare-at-the-floor-now-and-pretend-that-every-other-state-works-the-same-way" (LQ's analysis of the House vote approving this legislation HERE)

The Attorney General's office believes that since the courts are prohibited from recognizing same-sex marriage there was no way for them to grant same-sex divorces (since a divorce can only be granted to people who are married). (The Attorney General is the state's lawyer, he is responsible for defending the laws of the state, but is a member of the executive branch, not the judiciary, and so can not tell the courts what to do.)

The Texas third court of appeals (which has jurisdiction over Austin and surrounding area) found that the State did not have "standing" in the case. "Standing" is the legal right to intervene in a case. In order for the state to have "standing" to appeal the decision of the trail court permitting the divorce the state (again, that's you and me) would have to have been a party to the original divorce proceedings. Since the state did not get involved until after the family court rendered its verdict it was not involved in the original case and, the third court of appeals found, not able to appeal the decision.

HB 2638 would create a loophole that would automatically give the Attorney General the ability to intervene, even after the local courts have made their decision. This would create an unprecedented power for the state to meddle in the day-to-day operations of local county courts.

On a side note: the state does have standing when, as part of their legal arguments, one of the parties in the case seeks to have a portion of state law declared unconstitutional. Say, for instance, Family Code sec. 6.204. However, the judge who granted the divorce issued no opinion about the constitutionality of sec. 6.204, and the appeals court found that there were legal arguments to be made that sec 6.204 did not prohibit same-sex divorce since:
"divorce is a "benefit" of state residency, rather than a "legal protection, benefit, or responsibility" resulting from marriage... One could also argue that, under the plain language of section 6.204, 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 a divorce would be permissible."
The appeals court was quick to say that it wasn't issuing an opinion about the validity of such arguments, but that since there was plenty of justification for the local court to act, and since the trial judge hadn't said anything about the "constitutionality" of the sec. 6.204 then there was no constitutional attack against which the Attorney General needed to defend and therefore the state could not claim standing on the grounds that a portion of state law was being made unconstitutional.

The third court of appeals ruling is fascinating reading, by the way. You can find the full text HERE.

No comments:

Post a Comment