Today, the Texas Supreme Court formally accepted two cases about same-sex divorce for argument this November. (( The Court also granted a third petition, filed by the Attorney General, preserving its argument that it should have been allowed to intervene in one of these cases in the trial court. ))
In both cases, a gay couple married in another state tried to get a divorce in Texas. In both cases, the state Attorney General intervened in the case, arguing that Texas law did not permit a court to grant a divorce — not because the state wants to preserve gay marriages, but because the state does not recognize their validity to begin with.
A case originating in Austin proceeded differently. In that case, , No. 11-0114 , the Attorney General’s attempt to intervene was made after the divorce decree was issued, and the Austin Court of Appeals held that attempt was untimely. The Austin Court upheld the divorce.
The petitions were filed in the Texas Supreme Court in 2011, but they were effectively “on hold” while the U.S. Supreme Court considered its own set of gay-marriage cases last term.
The U.S. Supreme Court handed down its decisions in June. In one of those cases, U.S. v. Windsor, the Court held that the part of the federal Defense of Marriage Act that prohibited same-sex couples from receiving federal benefits was unconstitutional.
Now that the U.S. Supreme Court has spoken, the Texas Supreme Court has a better sense of how federal law may bear on the question whether Texas courts can or must recognize a same-sex marriage to grant a divorce.
One of the lurking issues may involve the part of the Defense of Marriage Act that was not struck down by U.S. v. Windsor — the part that modifies the Full Faith and Credit Clause of the U.S. Constitution to permit states to take the unusual step of refusing to recognize marriages issued in sister states. In striking down the federal-benefits part of DOMA, Windsor reasoned from equal-protection principles and the historic role of states in deciding what constitutes marriage to conclude that federal law could not refuse to recognize a marriage recognized by state law. How those principles apply when one state refuses to recognize a marriage issued by another state remains an open question.
The Texas Supreme Court has consolidated both cases for oral argument on November 5, 2013. The oral argument will be webcast live, as is the Texas Supreme Court’s normal practice.