Texas lesbians still divorced

Timothy Kincaid

January 7th, 2011

Texans Angelique Naylor and Sabina Daly met and fell in love back around 2002. In 2004 they married in Massachusetts and soon after adopted a child. But things did not work out so last year Angelique and Sabina went their separate ways.

Separation being a difficult process, mediation failed the ladies leaving them desperate for final legal determination of their assets and parental rights. But they had a problem; although they married in Massachusetts, they were not residents of the state and could not divorce there.

So they thought they’d do the rational thing: ask the state that they lived in to put legal sanction on the terms of their division and enforce them. And, perhaps to everyone’s surprise, a Texas judge agreed, and their divorce was finalized on March 31, 2010.

But Greg Abbott, the state’s Attorney General, was having none of it. The constitution bans gay marriage and thus there can be no gay divorce he decreed.

Abbott had no empathy or even the slightest concern with the plight of the women who were in legal limbo. He was interested only in making his point, in fighting ‘the homosexual agenda’ and if he destroyed lives in the process that is of absolutely no concern to him whatsoever. (What a peculiar way of thinking, to be so opposed to some ‘social harm’ that you are willing to wreak havoc on your constituents – who are harming no one – in order to hold up your notion. The social good is subservient to getting your way. Can you imagine intervening to demand that these two women not be able to resolve their property issues because you don’t like gay couples?)

But even the Attorney General isn’t entitled to butt into every case he so desires. And the appellate court ruled that Abbott didn’t have jurisdiction to appeal the case because his assistants did not file a motion to intervene until after state District Judge Scott Jenkins orally granted the divorce.

So for now, the Angelique and Sabina are still divorced.

Jim Burroway

January 7th, 2011

Ummm, mazel tov?

GreenEyedLilo

January 7th, 2011

I hope this decision lasts and their fight will end quickly so they can both move on. How ironic that they were forced to work together for so long after their love died. What a long time to be in legal limbo. It’s unromantic and not (I hope) what any couple thinks of as they walk down the aisle, but the right to legal divorce is so important. We’ve seen in some very tragic cases what happens when a splitting couple doesn’t have access to proper legal procedures for child custody, the disposition of property, etc.

Michael Ejercito

January 8th, 2011

This ruling, of course, is limited to the couple. It in no way determines if other same-sex couples married in foreign jurisdictions can get divorced under Texas law.

But that is the nature of trial courts- they can only determine the rights and duties of the parties before them.

Timothy Kincaid

January 9th, 2011

Michael Ejercito,

You are correct that this only applies to this case (as the appeal occurred too late and presumably would be entered timely in other circumstances).

However, you misunderstand our legal system if you think that cases are entirely independent of each other. Precedent is important, and in civil rights cases (which this is not) determination applies broadly to the class of individuals.

MIhangel apYrs

January 11th, 2011

for illustration, not comparison, prostitution is illegal in many States and Nation States. However they will tax earnings from prostitution.

More meaningfully, courts rule all the time on things not covered explicitly by law, so a ruling here is not irrational.

Michael Ejercito

January 11th, 2011

However, you misunderstand our legal system if you think that cases are entirely independent of each other. Precedent is important, and in civil rights cases (which this is not) determination applies broadly to the class of individuals.
Indeed it is.

As a commenter on another blog pointed out , Judges do not sit as arbiters of public policy in the abstract, is what I meant to say. They’re forced to wait on specific cases, involving specific parties, and their decisions in the final analysis only apply to those individuals. They’re enforceable only when similarly situated individuals walk into their court and say, “I want the same rights you gave Jane Roe [of Roe v. Wade]in that other case.”

Assuming, for the sake of argument, that the Texas Supreme Court overturns the Third Circuit’s ruling and remands for a decision on the merits, and the Thirds Circuit rules that Texas state law authorizes divorce, the court order applies only to the litigants. It is when other similarly-situated individuals go to a court within the Third Circuit asking for the same legal rights that the Naylors did, that the bhinding effect of precedent takes place.

In a similar vein, in Loving v. Virginia, the actual order for the Supreme Court was to reverse the Lovings’ convictions, no more. (“These convictions must be reversed.”) For other interracial couples, Loving would only come into play if they are prosecuted for violating an anti-miscegenation law, or they have cause to sue to compel issuance of a marriage license.

Timothy Kincaid

January 12th, 2011

Ejercito

You are arguing process rather than principle.

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