Same-Sex Divorce in Tennessee Revisited

5 October, 2009 by Lawrence in Divorce

About a week ago, I posted about whether same-sex couples can get a divorce in Tennessee.  I wrote that they could not, and I still have that opinion, based on  Tennessee’s current constitution and statutes.  However, it appears this issue may come to a head in Texas, where a district judge ruled that a gay couple could be divorced, even though Texas will not recognize a marriage between two people of the same sex.

The reason the case in Texas interests me, is because the judge in Texas granted the divorce after finding the Texas law violates the equal protection clause of the federal constitution.

The provision in the Texas constitution that prohibits same-sex marriage is similar (in effect) to the amendment of the Tennessee constitution which limits marriage to one man and one woman.

The decision by the district judge in Texas is not binding on Tennessee, but if a higher court (particularly the U.S. Supreme Court) were to find the law in Texas unconstitutional, it would mean the similar law in Tennessee (as well as many other states) would become ineffective.

The questions isn’t whether or not the law is discriminatory.  There’s no doubt the government is discriminating based on sexual orientation.  The ultimate question that will have to be answered is whether the government’s purpose in reserving marriage to one man and one woman is important enough to justify discriminating against gay and lesbian couples.

This battle is just getting warmed up, and it’s only a matter of time before this issue lands before the U.S. Supreme court.  In fact, the Texas case could be headed that way.  The judge made her ruling on Thursday, and the Attorney General filed a notice of appeal on Friday.