hotel california

Texas is the Hotel California of same sex marriage.

The Eagles sang about the Hotel California in their 1977 song: “You can check-out any time you like, but you can never leave!”. The current state of same sex marriage in Texas is similar. Couples can go to other states and get married, but if they live in Texas, dissolving the marriage is impossible.

Currently, 36 states plus the District of Columbia, and certain counties in Missouri allow same sex couples the freedom to marry. An NBC News/Wall Street Journal poll released in March 2015 found that 59% of Americans favored same sex marriages and only 30% opposed them. Never the less, Texas denies same sex couples not only the right to marry, but also the ability to get a divorce from a marriage legally entered into in a sister state.

As author Joan Jenkins said in her article Texas Conundrum: Married With No Way Out (Texas Lawyer, April 20, 2015), this creates a conundrum. Without the ability to divorce, same sex married couples living in Texas cannot equitably divide their jointly owned property the way that heterosexual married couples can. They cannot address jointly created debts in the same way. And, there is no option for alimony between same sex couples, as when a heterosexual married couple might need it.

Similarly, LGBT couples who are married from another state cannot inherit property through Texas inheritance laws as a married couple, cannot make decisions for their spouse, and do not have the same parenting presumptions as heterosexual couples.

So, at least for the time being, LGBT couples who get married in other states face the “Hotel California” situation where they can physically check out of the marriage by separating but they can never leave with a divorce. Maybe this summer the Supreme Court will change this and force Texas to recognize the same sex marriages and also give LGBT couples the ability to get a divorce.