TX-Supreme-CourtAfter a long 2 year wait, the Texas Supreme Court finally issued rulings in the two same-sex divorce cases pending before it. One involved two men from Dallas — In re JB and HB. The other involved two women from Austin — Naylor v. Daly. Unfortunately, we are no closer to understanding how married same-sex couples living in Texas should address the dissolution of their relationships. And… it took 2 years to get here.

The first case, In re JB and HB, came out of Judge Tena Callahan’s court in Dallas County, Texas. Her ruling was heralded when she courageously held the Texas law prohibiting recognition of same-sex marriages in other states for purposes of conducting a divorce as unconstitutional. This case was anticipated to be THE case that would give us clarity on how to handle out of state marriage that wish to dissolve in Texas. Unfortunately, one of men passed away in April 2015. A divorce case is rendered moot upon the death of one of the parties and cannot be continued.  The Texas Supreme Court dismissed the case on June 19, 2015. A disappointing result for Texas jurisprudence.

The second case, Naylor v.Daly, out of the Austin area, presented a more technically challenging issue. At the trial court level, Naylor and Daly sought to dissolve their marriage. At first, the ladies disagreed as to whether a divorce under Texas law was proper or not, but then eventually reached a settlement of their disputes and entered an agreed divorce. Only after their case was finalized did the Texas Attorney General, then headed by now-Governor Greg Abbott, file pleadings to challenge the constitutionality of the trial court’s grant of divorce.

The Texas Supreme Court held that the Texas Attorney General waited too long to file his pleadings and therefore lacked the right to intervene and challenge the judgment. He could not wait until the case was over and judgment final to intervene. That was too late. So, according to the Texas Supreme Court, the same sex divorce stands. Now the opinion wades through a lot of jargon about the Texas constitutional definition of marriage being one man and one woman, etc. etc. But at the end of the day, procedure reigned and the OAG was just too late to complain.

I am concerned that many in the LGBT community will misinterpret this decision as a sanctioning of filing same-sex divorce cases for LGBT couples living in TExas who weremarried elsewhere. Tod Robberson, writing on the Dallas Morning News Opinion Blog, for example, goes there his headline Texas Supreme Court allows same-sex divorce, which means marriage can’t be far offOh, Tod, how wrong you are, and how disappointed many people are going to be.

Here’s my comment response to Tod’s blog post:

Tod, I think your headline expands today’s decision into unsupported territory. The opinion *was* decided on a technicality. Therefore, it does *not* support the general conclusion that same-sex divorces may go forward in Texas. The crux of the opinion says that the Attorney General must be MORE diligent in challenging same sex divorces under Texas law, instead of waiting until the case is over as he did in Naylor. The opinion delves very deeply into Texas’ constitutional definition of marriage as one man, one woman. As a family law attorney for 23+ years, and as an LGBT ally for all of those years, I believe this opinion only goes to far as to say — if you manage to file a same-sex divorce without the OAG finding out, and proceed to a final judgment without the OAG finding out, then your divorce is final. If, however, the OAG finds out and challenges the jurisdiction of the Texas court to maintain the divorce based on our constitutional parameters, then the case will head up on appeal, with great expenditure of attorneys fees, time, and emotional resources.

Admittedly, as an LGBT Ally and Advocate, the limitations of this decision are disappointing. Also disappointing is the dismissal of the J.B. case, also dealing with the right of same-sex couples to get a divorce in Texas, due to the death of one of the parties.

I hate for same-sex couples out there to read your column and get their hopes up that they can now have unrestricted access to the Texas court system to dissolve their marriages. This Naylor opinion does NOT support your conclusion and many folks will be disappointed in relying on your column for legal advice. However, the Supreme Court of the United States should rule in a few days to provide the clarity the Texas Supreme Court failed to provide.

So, for a few more days, Texas remains in limbo. We expect the Supreme Court of the United States to enlighten us sometime this month. Only then will we know for sure how to approach same-sex divorces in Texas.