During oral arguments in two same-sex divorce cases, justices of the Texas Supreme Court posed more procedural questions about same-sex divorce than constitutional queries about the state’s same-sex marriage ban.
Themes in the justices’ questioning included whether Texas courts have jurisdiction to hear same-sex divorce cases in the first place, whether the state has a right to intervene in such cases, and the effect of declaring a same-sex marriage as void versus granting a divorce.
The two cases, consolidated for oral argument, are In the Matter of the Marriage of J.B. and H.B. and State of Texas v. Angelique Naylor. In both cases, same-sex couples were married in Massachusetts and moved to Texas. J.B. filed for divorce from his husband in Dallas, the state intervened, and eventually an intermediate appellate court barred the divorce. In contrast, Naylor filed for divorce from her wife in Austin, a trial court granted the divorce, and an appellate court refused to allow the state to intervene.
James J. “Jodie” Scheske, who represents J.B. and Naylor in the two cases, says he thinks they should have an “equal right to get a divorce.”
“There’s no question but that my clients were married, and the only place they can dissolve that marriage is in their state of residence. And all Texans should be treated equally in that regard,” says Scheske, an Austin solo.
Assistant attorney general Jimmy Blacklock, who represents the state in both cases, declines comment. During oral argument, he told justices that, because Texas law says there can be no same-sex marriages, there can be no same-sex divorces.