Texas Judge Denies Request To End Same-Sex Marriage
By Deanna Boyd, Fort Worth Star-Telegram
FORT WORTH, Texas — Brooke Powell and Cori Jo Long walked into a Tarrant County courthouse Friday morning with the same goal in mind — to end their marriage.
But the women, married in June 2010 in New Hampshire, had different ways in which they hoped to achieve that.
Powell had petitioned for state District Judge William Harris to declare her marriage to Long “void” under the grounds that Texas does not recognize same-sex marriages.
“Your honor, my client is not here today to change the law or to be a crusader,” Susan Smith, Powell’s attorney, told the judge. “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?”
Long, however, wanted Harris to grant the couple a divorce, affording her all the benefits granted to other divorced couples such as spousal support and division of the couple’s 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 later told reporters. ” … It happened.”
In the end, Harris denied both women’s requests, stating that he had no jurisdiction to make such rulings in a state where the law doesn’t recognize same-sex marriages. The case marked the first time in Tarrant County that a same-sex couple had sought to dissolve their marriage through the court system. Long lives in North Richland Hills and Powell lives in Fort Worth.
Smith called the judge’s ruling “disappointing” but said she understands the court’s dilemma given the existence of the Texas Defense of Marriage Act, which prohibits same-sex marriages in Texas.
“But there’s also statutory provisions in the Texas Family Code that should give same sex couples the ability to dissolve their relationships,” Smith contends.
Sonya Carrillo, Long’s attorney, said the judge’s decision came as no surprise.
“The way the law is written right now, his decision was not unexpected,” Carrillo said. “We do plan to take it up to the court of appeals.”
A federal judge declared Texas’ ban on same-sex marriages unconstitutional in February but allowed it to remain in effect during the appeal process.
In making her case for the judge to void the marriage, Smith argued that Texas courts had previously voided bigamist marriages — unions also not recognized by the state — and that those rulings that were later upheld in appellate courts.
She pointed out that while her client does not support the current laws in Texas regarding same-sex marriages, Powell is willing to use the laws in place to quickly end her marriage.
“She cannot wait for the Texas legislators to step in and change the laws for same-sex marriages. She cannot wait for the Texas Supreme Court to come and hand down an opinion in cases which have been pending for five years and six years with no resolution,” Smith said. “She cannot wait on the United States Supreme Court to hand down an opinion allowing same-sex couples the right to divorce.”
Carrillo argued that the court has the exclusive jurisdiction over the couple’s marriage and in denying jurisdiction, leaves Long with no other avenue to get a divorce.
“She’s effectively going to have to remain married forever, which may be some kind of cruel and unusual punishment,” Carrillo said.
Carrillo said she believes refusing Long a divorce, and thus a chance to someday remarry, is also a violation of her constitutional rights.
“Everyone in this courtroom knows that the right to marry is a fundamental constitutionally protected right,” Carrillo said. “By denying her a divorce and by the state of Texas not allowing her to be able to get a divorce by any means, is effectively barring her from ever being able to remarry anyone ever. Man, woman. Anyone.”
In making his decision, William acknowledged that the law would likely progress to one day accommodate Long’s request for a divorce, but said, “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.”
He said it did not believe it was proper, nor legally permissible, for him to “legislate from the judicial bench.”
Powell did not speak to reporters following the hearing.
“No couple going through a divorce or a dissolution proceeding really wants this much publicity. This is a very private matter,” her attorney explained. “She’s disappointed that she cannot conclude her relationship, but where there’s a will, there’s a way and we will see what we can do about all that.”
Long said she somewhat considers her fight for a divorce a crusade for equal rights.
“It’s very personal but, yes, it is based on equality too,” Long said.
Carrillo said her client cannot simply return to New Hampshire for a divorce because of residency requirements.
“She would have to move all the way back there and live probably for six months to a year before she could obtain a divorce in New Hampshire,” he said.
So, for now, both parties will regroup and plan their next moves. They also will wait to see if the U.S. Court of Appeals for the 5th Circuit will uphold the federal judge’s ruling in San Antonio that banning same-sex marriage in Texas is unconstitutional.
“If they agree with the San Antonio case, then Texas will be bound by that law and this will be no more,” Carrillo said. “We’ll be able to marry and divorce same sex couples.”
Photo: Bill & Heather Jones via Flickr