Same Sex Marriage as a Constitutional Nullity in Texas

The Texas Court of Appeals ruled that it cannot divorce a same sex couple. The laws of Texas cannot recognize an out of state same sex marriage for purposes of divorce litigation, or any other matter, as guaranteed by that state’s constitution.

The case, In the Matter of the Marriage of J.B. and H.B., illustrates the legal nullity of marriages created without meeting minimum elements for entry into marriage. The parties in this case are similarly situated as the parties in a marriage of a minor and an adult, or someone who is already married, or marrying a close relation. Each of these concerns are called defects in the law of marriage entry, and are set forth in state code to establish minimum requirements for entry into marriage to protect otherwise vulnerable parties. Parties must be of suitable age, unrelated, of opposite sexes and not already married to any other. Though some commentators point out the problem and its harsh consequences for many affected couples, (see, e.g. Joanna L. Grossman’s piece in find law entitled “No Gay Divorcees in Texas: An Appellate Court Refuses to Dissolve a Same-Sex Marriage,” Sept. 13, 2010, they misrepresent the legal rationale of these decisions.

A similar ruling was issued in Rhode Island in 2007 in the case of Chambers v. Ormiston. There the Rhode Island Supreme Court was faced with a question of same sex divorce, but in Rhode Island, unlike in Texas, there is no express constitutional requirement on marriage entry regarding differing genders. Rhode Island ruled that because it cannot recognize a same sex marriage, it cannot bring about a same sex divorce.
These cases illustrate the law of annulment, which is appropriate when the particular marriage is a legal impossibility. Another example would be bigamy, or polygamy – a marital entry requirement that expressly states a party can only be married to one person at a time. When one party is married already, the second marriage is bigamous, and therefore void.

Much like the same sex cases in Texas and Rhode Island, this minimum requirement is being tested in Canada right now. Initiated by the British Columbia Attorney General under a special provision of that Province's law, the case arises in the wake of failed prosecutions of polygamous sect members in British Columbia. This case is made all the easier to litigate because Canada has broken down their requirements for marriage entry already by recognizing same sex marriage; recognizing polygamy is the next step in the process of further marital breakdown in the nation. Rather than restoring families, marriage deconstruction weakens families.

When minimum requirements for entry into marriage are deconstructed, marriage is deconstructed, and families are weakened by the altered meaning and changed responsibility. Though some may suggest, as does the new movie, The Kids will be Fine, children are not fine when the family definitions and responsibilities are broken and confused; rather, as they are in the movie, kids are dramatically and detrimentally affected. Texas and Rhode Island have acted to protect marriage from that deconstruction, to foster family stability in those states respectively.

1 comment:

  1. Professor Kohm - It does not surprise me that the Dallas district judge permitted the divorce of a same-sex couple. Over the last five years, one of the largest concentrations of homosexuals in the U.S. settled in Dallas. This has greatly impacted local elections - including judges. Several prominent positions, including the sheriff, are now held by vocal homosexuals or supporters of gay rights. As an openly gay person, Houston Mayor Annise Parker users her position to advocate for gay rights. Because city leaders impact so much of citizens' daily lives, we must be diligent in seeking leaders who stand for Biblical values.