Austin
12:38 pm
Fri January 7, 2011

Appeals Court Says State Can't Challenge Travis County Lesbians' 2010 Divorce

A Travis County lesbian couple who were married in Massachusetts cannot have their divorce blocked by Attorney General Greg Abbott, Texas' 3rd District Court of Appeals ruled today.  (Read the decision here.)

Last February, Travis County District Judge Scott Jenkins granted a divorce to the couple, Angelique Naylor and Sabina Daly.  Abbott had tried to appeal on the grounds that a judge cannot grant a divorce to a lesbian couple because the state does not recognize same sex marriages.

But the 3rd District Court of Appeals said Abbott lacked the standing to appeal because he waited too long to get involved in the case.

"Because the State lacks standing to appeal, we dismiss this appeal for want of jurisdiction," the ruling reads.

The gay rights group Equality Texas says it is pleased to see the appellate court upheld the ruling, but it will do little to advance the cause of same sex marriage in Texas.

"The end to a marriage by divorce needs to happen where people are currently residing," Equality Texas deputy executive director Chuck Smith told KUT News. "We don't make straight people move back to the state where they got married if they want a divorce."

"This does not change the constitution of the State of Texas that says marriage is the union of a man and a woman," Smith said.

It's a different case than one last year in Dallas County, where two men seeking to divorce were blocked from doing so by the 5th District Court of Appeals.

Naylor's attorney Jennifer R. Cochran posted on her blog today that had the AG intervened earlier, their divorce would likely have been blocked too:

Well this particular divorce was granted and upheld by the appellate court because the AG intervened after the divorce was granted orally by Judge Jenkins and because neither party raised constitutional challenges to the Family Code or the Texas Constitution.  If either party had, the appellate court would have most likely found that the AG did have standing and would have addressed the constitutional arguments in addition to the procedural ones.  So, we will leave the constitutional challenge for another day (or case).