A Texas appeals court ruled Tuesday that a same-sex couple cannot get a divorce since the state does not recognize gay marriage.
"Texas law, as embodied in our constitution and statutes, requires that a valid marriage must be a union of one man and one woman, and only when a union comprises one man and one woman can there be a divorce under Texas law," Justice Kerry P. Fitzgerald wrote in the opinion for the 5th Texas Court of Appeals.
The ruling was handed down to a gay couple, identified only as J.B. and H.B., who married in Massachusetts, where same-sex marriage is legal, in September 2006. The couple moved to Texas in 2008 and they ceased living together in November that year. J.B. filed a petition for a no-fault divorce.
A district judge ruled last year in favor of hearing the case, declaring that the state marriage amendment and Defense of Marriage Act violate the federal constitutional right to equal protection under the Fourteenth Amendment.
Texas Attorney General Greg Abbott appealed, arguing against hearing the petition.
The appeals court concluded on Tuesday that the trial court erred in its ruling and that the state district courts do not have subject-matter jurisdiction to hear a same-sex divorce case. It also ruled that the Texas marriage law is constitutional.
"The court's ruling strikes down an activist judge's attempt to take the law into her own hands," said Kelly Shackelford, president of Liberty Institute, which argued against the divorce petition, according to the Fort Worth Star-Telegram.
The Texas Constitution, which was amended in 2005, states that marriage shall consist only of the union of one man and one woman.
A divorce proceeding would "give effect" to same-sex marriage, Fitzgerald wrote, since it requires a legally recognized relationship between the parties that the petitioner seeks to alter.
"A person does not and cannot seek a divorce without simultaneously asserting the existence and validity of a lawful marriage," the judge stated in the opinion.
J.B. has argued that the couple is not seeking to challenge the state's marriage amendment. They simply want a divorce.
In the petition, he characterized the rights in question as the freedom to marry a person of one's own choosing and the concomitant right to end such a marriage with a divorce. He pointed out that the Supreme Court has indicated that the right to marry is a fundamental right.
But Fitzgerald stated that the high court made such a conclusion in cases involving a marriage between a man and a woman.
Fitzgerald also wrote in the opinion that fundamental rights are "deeply rooted in this Nation's history and tradition" and the right to marry a person of the same sex is not deeply rooted in U.S. history and tradition. It wasn't until 2003 that states began recognizing same-sex marriages, he noted.
The appeals court remanded the case back to the trial court with instructions to dismiss for lack of subject-matter jurisdiction.