Even in light of last week’s decision in US v. Windsor, ruling parts of the Defense of Marriage Act unconstitutional, many issues still remain in the evolving debate of marriage equality. One which I see almost on a daily basis involves the right or ability of same sex couples who are legally married to break up and divorce. In other words, a couple goes to a state that sanctions same sex marriage and has the ceremony performed, then that couple moves to Texas where they decide to break up. Because Texas has a state-version of DOMA that prohibits recognition of legal same sex marriages in other states, and because section 2 of the federal DOMA does not require Texas to give full faith and credit under the US Constitution to the marriage laws of other states, couples may be left with no remedy. In Texas, we cannot file a divorce for those legally married, same sex couples. If they own property together, we cannot use our state’s marital property division laws to apportion their property. We cannot help a same sex spouse who, through disability or lack of earning capacity, cannot support himself or herself after depending on the other spouse for financial support during the marriage.
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The US Supreme Court issued their decision today in US v. Windsor regarding the federal government’s right to deny benefits to legally married same sex couples. SCOTUS ruled that section three of the Defense of Marriage Act, the section that prohibits same sex federal benefits, is unconstitutional on the grounds of equal protection. This is a monumentous day for same sex couples – giving same sex marriages equal status with heterosexual marriages at the federal government level. This decision is not binding on Texas state law, however. Section 2 of DOMA says that states do not have to recognize same sex marriages from other states, and that section still stands today. The Windsor opinion gives hope for the future of the rights of LGBT couples to marry (and divorce).
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The gay marriage controversy is forcing all citizens of the state of Texas to reexamine what “marriage” means. Is marriage simply a religious concept implemented through the government that supports the traditional one man/one woman viewpoint? Certainly that is the current state of the law in Texas.
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So, the question is what happens when two women are in a relationship, woman #1 donates her egg to woman #2 and woman #2 gives birth to the baby? Which one is the “mother”? Under Texas divorce law, the answer is that woman #2, as the birth mother, is the legal parent and woman #1, as a donor under the law, has no parental rights….
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Child custody battles are always difficult, and can be ugly. But a recent Dallas child custody dispute shows the lengths that gay parents must go to fight for the right to parent their non-biological children if they split up from the child’s biological parent. In the case fought out in Dallas family law courtrooms, a Texas mother petitioned for custody of a child she had raised since birth with her lesbian partner (the child’s biological mother).
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