Texas divorce case draws attorney general’s attention
Feb 16, 2010 at 12:02 pm
February 15, 2010
Texas Attorney General Greg Abbott has intervened in a first-of-its-kind Travis County same-sex divorce case, arguing that the women involved, who were married in another state, may not be legally granted a divorce because Texas law defines marriage as between a man and a woman.
Angelique Naylor, 39, and Sabina Daly, 41, married in 2004 in Massachusetts, where gay marriage is legal. They returned to their home in Austin and together adopted a son, who is now 4. They have been separated for more than a year.
Last week, at the close of a two-day hearing before state District Judge Scott Jenkins on how they should divide their property and share custody of their son, the two reached an agreement that in part called for them to divorce.
According to Naylor's lawyer, Jennifer Cochran, Jenkins granted the divorce orally and ordered the parties to put their agreement in writing and return to court next month for his signature.
"This is the first time in over a year that our family has been at peace," said Naylor, who still lives in Austin. Daly has moved to San Antonio with their son.
"We never asked them to grant us a same-sex marriage. We only asked them to legally recognize that we needed a divorce," Naylor said.
Daly's lawyer, Bob Luther, could not be reached for comment.
Abbott spokesman Jerry Strickland said in a statement, "The State maintains that the Court has no legal authority to grant this divorce, and as a result, the State must intervene in this case to defend the Texas Constitution."
Abbott's petition in intervention was filed Thursday after the agreement was reached in court. In it, Abbott notes that after Naylor filed for divorce in December, Daly argued that divorce was the wrong legal remedy for the couple and that the court should instead declare the marriage void.
"Petitioner (Naylor) is asking the court to recognize and enforce a marriage between two persons of the same sex which is contrary to the law and public policy of the state," wrote Luther, Daly's lawyer.
Abbott's petition said that through legal voidance, "the parties can achieve a legal termination of their Massachusetts marriage, through an enforceable judgment."
This is not the first time that Abbott's office has sought to intervene in a Texas same-sex divorce case.
He did so before state District Judge Tena Callahan in Dallas County ruled in October that two men could divorce in Texas.
Callahan ruled in that case that the prohibition of same-sex marriage violates the right to equal protection under the U.S. Constitution.
Abbott has appealed the ruling. It is pending in the state's 5th Court of Appeals.
According to a Pew Research Center survey released last year, 53 percent of Americans oppose allowing gays and lesbians to marry legally. That survey revealed that 72 percent of liberal Democrats favor same-sex marriage while 81 percent of conservative Republicans oppose it.
Jenkins is a Democrat; Abbott is a Republican.
Massachusetts became the first state to legalize gay marriage, after a November 2003 decision by the state's highest court.
Same-sex couples also may wed in Vermont, Connecticut, Iowa and New Hampshire .
Texas is one of numerous states that have passed constitutional amendments banning gay marriage. The Texas amendment, passed by the Legislature in 2005 and approved by 76 percent of voters, defines marriage as between one man and one woman.
A similar provision defining marriage is in the Texas Family Code.
At the start of the hearing last week, Jenkins asked the parties to write briefs that included their opinion on whether he could grant a divorce based on the full faith and credit clause of the U.S. Constitution.
That clause "requires that a valid judgment from one state be enforced in other states regardless of the laws or public policy of the other states."
Abbott's filing discounts that the full faith and credit clause would require Texas courts to recognize same-sex marriages granted in other jurisdictions.
Jenkins could not be reached for comment Monday.
At the start of the hearing in Daly and Naylor's case last week, Jenkins said, "It's a fascinating problem that your clients have, one that I certainly embrace." [Link]