FORT WORTH (CN) – A Texas judge has refused to void a lesbian couple’s marriage or grant them a divorce, citing the state’s constitutional gay marriage ban.
Brooke Powell, of Fort Worth, and Cori Jo Long, of North Richland Hills, married in June 2010 in New Hampshire. The women separated in June 2013 and Powell filed to void their marriage in April in Tarrant County District Court.
“The marriage is void because the petitioner and respondent are of the same sex,” the complaint stated.
District Judge William Harris refused both requests Friday, the Fort Worth Star-Telegram reported. He said the court lacked jurisdiction to make either ruling because same-sex marriages are not recognized in Texas due to the ban enacted by voters in 2005.
Harris admitted the law would likely someday allow for Long’s request for a divorce. But he said it was not proper or legal for him to “legislate from the judicial bench.”
“My job, my oath as a state district judge is to uphold the Constitution of the state of Texas and to enforce the laws that the legislature has lawfully enacted as representatives of the people,” Harris said.
Powell’s attorney, Susan Smith with Varghese & Smith in Fort Worth, told Harris her client does not want “to change the law or be a crusader.”
“All she’s trying to do is to use the laws that are currently available to her through the Texas Family Code to answer the question, is she married and, if so, how does she exit that marriage,” Smith said.
Smith argued that Texas courts had voided bigamist marriages before and they were later upheld on appeal. Bigamist marriages are not recognized by Texas, either.
Long does not share this view. She asked the court to divorce the couple, giving her the same benefits as divorcees in terms of seeking spousal support and division of property.
“I would just like for my marriage to be recognized as a marriage and be able to be divorced as any divorced couple,” Long said after the ruling.
Smith deemed the ruling “disappointing” and said sections of the Texas Family Code “should” give same-sex couples a way to “dissolve their relationships.”
Long’s attorney, Sonya Carillo, told the newspaper the ruling was not surprising.
“The way the law is written right now, his decision was not unexpected,” she said. “We do plan to take it up to the court of appeals.”
Carrillo told Harris that his denial of jurisdiction leaves her client with no other way to get divorced and is a violation of her constitutional rights.
“She’s effectively going to have to remain married forever, which may be some kind of cruel and unusual punishment,” Carrillo said.
In 2009, Dallas County District Judge Tena Callahan – a Democrat -made headlines when she agreed to hear a divorce petition from two gay men. She ruled the state’s same-sex marriage ban was a violation on the couple’s equal protection rights. Texas Attorney General Greg Abbott – a Republican – intervened in the case and her ruling was reversed on appeal.
A San Antonio federal judge struck down the state’s ban as unconstitutional in February, citing the U.S. Supreme Court’s 2013 ruling that struck down parts of the federal Defense of Marriage Act. U.S. District Judge Orlando Garcia stayed execution of his order pending Texas’ appeal to the 5th Circuit, which is expected to rule on the case in the fall.
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