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Attorneys Vic Hill and Brad MacDonald

Texas Appellate Court Prevents AG from Blocking Gay Divorce

Recently, a Texas appellate court ruled that the attorney general had no standing to challenge the constitutionality of a divorce issued to a gay couple in Texas.

The couple had obtained a marriage license in Massachusetts in 2004 and later relocated to San Antonio. Last February they were granted a divorce by the Travis County state district court. Aides from the Texas Attorney General’s office went to the courthouse the next day to block the divorce before the final decree was entered.

The Attorney General argued that, because the Texas Constitution clearly defines marriage as only between a man and a woman, the gay couple did not have a valid license and so could not legally obtain a divorce in Texas.

In response to the Attorney General’s objection, the 3rd District Court of Appeals ruled that the state did not voice its objection within the accepted time period, and so had lost standing in the case. Although Texas rules of Civil Procedure do not establish a deadline for intervention, the generally recognized practice is that a party may not object after a final judgment has been issued unless that judgment is later set aside.

In its ruling, the Court of Appeals refrained from commenting on the issue of gay marriage, and rested its opinion solely upon procedural grounds. But some believe that the Court may have had strategic reasons for ruling on the matter in the way it did. Because the issue of a federal constitutional right to same-sex marriage is currently being fought out in federal courts at present, the Texas Court of Appeals may have wished to postpone any judgment on the matter until the issue has been clarified by federal courts.

The attorney general’s office is currently looking into its legal options after the appellate court’s ruling.

Source: Houston Chronicle, “Abbott loses ruling on gay divorce,” Nolan Hicks, 7 Jan 2011