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Texas Supreme Court Hears Arguments in Whether State Can Grant Divorce to Gay Couples: VIDEO

Back in August, we reported on two gay couples in Texas who were bringing their divorce cases all the way to the state Supreme Court in a challenge of the state's constitutional ban on same-sex marriage. Both couples originally married in Massachusetts several years ago and later filed for divorce in Texas. The Dallas Morning News reports:

ScheskeTheir attorney, James Scheske [pictured right], told the all-Republican court Tuesday that Texas' gay marriage ban doesn't bar same-sex divorces because divorce is covered under a separate section of family law. Furthermore, he argued that the state can't dispute that the couple were legally married elsewhere.

"Texas can't prevent its gay and lesbian citizens from getting married" and returning home, he said. "There's no dispute my clients were married."

Several justices asked how granting a divorce could not be an official recognition of marriage. 

"Don't you have to presume there is a legal marriage (to grant a divorce)?" Justice Don Willet asked Scheske.

Check out a news report of the case, AFTER THE JUMP...

Justices also brought up the broader issue of the constitutionality of Texas' gay marriage ban itself, with Willet asking Scheskie if the ban is "driven by irrational animus" against homosexuals.

Scheske argued that the gay marriage ban is unconstitutional because it treats same-sex couples as "second-class" citizens. In June, the U.S. Supreme Court overturned part of the federal Defense of Marriage Act because it treated same-sex couples unequally.

"If we haven't learned anything from the U.S. Supreme Court cases the last 60 years, we should have learned that forcing a targeted group of citizens into a separate and unequal court procedure is never constitutional. That's what happens here." Scheske said.

AbbottBack in 2009, when one of the couples originally filed for divorce, Attorney General Greg Abbott, who is running for governor next year, intervened and invoked DOMA, "which specifically protects the rights of states to refuse to recognize or give effect to marriages between persons of the same sex..."

It remains to be seen how the Texas Supreme Court will handle this legal predicament, especially considering this is one of the first serious challenges to the state's anti-gay constitutional amendment since it was implemented in 2005.  The court is not expected to issue a ruling for several months.

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  1. The Supremes only struck down Section 3 of DOMA. Section 2 is still in effect.

    Posted by: Steve | Nov 6, 2013 11:15:07 AM

  2. The section of DOMA that he cited isn't "out of the way". Only the section that banned the federal government from recognizing marriages performed in states that allow it was struck down. The sections that allow states to make their own laws and to refuse to recognize the marriages of same-sex couples from other states weren't included in the suit or in the ruling.

    Posted by: TampaZeke | Nov 6, 2013 11:15:59 AM

  3. It will be interesting to see whether the Texas Court will recognise the validity of the Mass. marriage. IMO Willet is right they cannot grant a divorce unless they do.

    And if the court does then grant the divorce the game's up.
    I love that phrase " irrational animus" against homosexuals.
    Are you listening Family Research Council, and all that list of irredeemable bigots out there,...... "IRRATIONAL", - that means without reason, without intellect, without thought........

    Posted by: JackFknTwist | Nov 6, 2013 11:22:22 AM

  4. Why couldn't they just file for divorce in Mass.? If it's a no-fault divorce, it should be easy.

    Posted by: Jack M | Nov 6, 2013 11:40:02 AM

  5. All states have residency requirements for filing divorce. They'd need to live in MA for 6 months or so. Just another way the US is fundamentally messed up.

    Posted by: Steve | Nov 6, 2013 11:51:40 AM

  6. @ STEVE:

    So true !
    So every state still has the right to discriminate against gays on the grounds of " irrational animus".

    Posted by: JackFknTwist | Nov 6, 2013 11:53:14 AM

  7. You should have noted that the entire (yep, all of them) Texas Supreme Court is made up of Republican Party officials. The Texas Republican platform explicitly calls for the recriminalization of the very relationships before the court.

    Posted by: Roy T. | Nov 6, 2013 1:24:30 PM

  8. How very odd. You'd think if they didn't want same sex marriages they would gladly break them up.

    Posted by: Bob | Nov 6, 2013 5:59:49 PM

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