Court: Texas can't stop gay divorce that's granted

The Texas attorney general can't block a divorce granted to two women who were legally married elsewhere, an appeals court ruled Friday.

A judge in Austin granted a divorce last February to Angelique Naylor and Sabina Daly, who were married in Massachusetts in 2004 and then returned home to Texas.

A day after the divorce was granted, Texas Attorney General Gregg Abbott filed a motion to intervene in the case, arguing the judge didn't have the jurisdiction to grant the divorce because Texas has a constitutional ban on same-sex marriage. The judge ruled that the attorney general's motion wasn't timely, a decision Abbott then appealed.

In Friday's ruling, a three-judge panel of 3rd Texas Court of Appeals in Austin said the state was not a party of record in the divorce case and Abbott therefore did not have standing to appeal.

The ruling, however, does not settle the debate over whether same-sex couples should be allowed to divorce in Texas, where a different appeals court has ruled against a gay couple seeking a divorce in the state.

The 5th Texas Court of Appeals in Dallas ruled in August that gay couples legally married in other states can't get a divorce in Texas. In that case, Abbott had appealed after a Dallas judge said she did have jurisdiction to grant a divorce - though had not yet granted one - and dismissed the state's attempt to intervene.

The ruling by the Dallas appeals court's three-judge panel also affirmed the state's same-sex marriage ban was constitutional. Texas voters in 2005 passed, by a 3-to-1 margin, a constitutional amendment to ban same-sex marriage even though state law already prohibited it.

Austin attorney Jody Scheske, who handled the appeals in both divorce cases, acknowledged the divergent rulings far from settle the issue of gay couples seeking a divorce in Texas.

"It's complicated and to some extent remains unsettled and that's unfortunate," he said. "If you have a legal marriage you should have the same equal right to divorce as all other married people have."

But for his client in the Austin case, the Friday ruling means she will remain divorced, Scheske said.

"For the larger issue, what it means is the state of Texas can't intervene in private lawsuits just because it doesn't like one of the trial court's rulings," he said. "The state was not a party, so they couldn't intervene after the fact."

The attorney general can choose to ask the entire Austin appeals court to hear the case there or can appeal the Friday ruling to the Texas Supreme Court.

Abbott spokeswoman Lauren Bean said their office "will weigh all options to ensure that the will of Texas voters and their elected representatives is upheld."

"The Texas Constitution and statutes are clear: only the union of a man and a woman can be treated as a marriage in Texas. The court's decision undermines unambiguous Texas law," Bean said.

Unlike the Dallas case, the Austin case did not examine whether the judge had jurisdiction to grant the divorce. Ken Upton, a staff attorney for Lambda Legal, a national legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people, noted the Austin appeals court decision was in fact quite narrow.

"Basically, the only rule that comes out of it is that (Abbott) waited too long," he said.

He said the predicament of gay couples seeking divorce in Texas highlights what happens when states adopt "such different views about marriage and relationships."

"The more we have this patchwork of marriage laws, the more difficult it is for people who don't have access to the same orderly dissolution," he said.