Texas gay couple skips same-sex marriage question and seeks divorce instead—and they might get it
From the Federalist Society’s blog:
Following a Dallas judge’s decision that two gay men who were married in Massachusetts had the right to divorce in Texas because the Texas constitutional prohibition of same-sex marriage violated the federal Equal Protection Clause, the District Court of Appeals in Dallas reversed, holding that the case was outside the judge’s jurisdiction and ordering him to dismiss, reports The Dallas Morning News. The Texas Attorney General, Greg Abbott, had intervened in the case, arguing that Texas courts could not dissolve a gay marriage because Texas did not recognize a right to such a marriage.
At the DallasNews story, one of the parties’ attorneys repeats the grating line, “I believe all people should have the same rights to do what they want with their private lives.” The same-sex marriage question is not about personal freedom or libertarianism or equal rights. It is about obtaining the state’s imprimatur of social acceptance.
And in the meantime, it’s apparently confusing the hell out of our nation’s jurists. And threatening to put some of them out of work.
Notes From Babel 
It’s possible that what some homosexual people want from their respective governments is to be socially accepted, which I wouldn’t mind, if for no other reason than because they wouldn’t have to fly so many of those annoying rainbow flags on my street. Who designed those effing things? Freaking eyesores.
However, my gut says the bulk of them want the option to marry someone.
Once again, I know I have oversimplified.
BothEyesShut
September 2, 2010 at 8:22 am
You suggest the two are different, but my point is they are not. Why cannot two people, in the privacy of their own intimate relationship, regard themselves as “married” and not bother anyone else about it? Simply, because “marriage,” in the sense it is being litigated over, is not a purely private matter. It carries with it social acceptance. And “acceptance,” if that is to mean anything, means it may be withheld in certain instances.
Should we withhold it from gays? That’s a debate that stirs me much less than whether courts should remove the question from us altogether.
Tim Kowal
September 2, 2010 at 8:42 am
I’ll also say that it ought to be the case that my last comment was a cop out: certainly, everyone would acknowledge, the courts have no business in these policy choices, so let’s get to talking about whether Californians shouldn’t just accept same-sex relationships, up to and including marriage. And indeed, that is a worthy discussion. But sadly, such discussions are in fact being removed from public discourse and, if the principle of the recent Perry decision–that morals have no basis in law–then we can end our discussions not only on same sex marriage, but suicide and euthanasia, prostitution, animal cruelty, obscenity, bigamy, adult incest, and host of other questions of social policy. I certainly have opinions on all those issues, as do all of us. But the fight now has become not which side to take, but whether we shall be permitted to continue to take a side.
Tim Kowal
September 2, 2010 at 8:59 am
Remarkable. Well-said.
If these topics continue to bubble up as frustrated citizens picket and rage, protected by their 1st Amendment, then morality, social acceptance, and litigation will all three remain entwined into perpetuity.
As far as the existence of an ongoing public dialogue and the right to “take a side,” as you put it, goes, then this is a good thing. Right? Err… Right?
BothEyesShut
September 2, 2010 at 10:46 am