We witnessed another interesting twist in the push for marriage equality this week: this time, through a divorce proceeding. (Equal is equal right?)
A lesbian couple, legally married in D.C. in 2010, is involved in a divorce and custody battle that has inadvertently spilled over into the gay marriage debate.
Last February, Allison Lesh filed for divorce from her wife Kristi Lesh. Allison also filed for joint custody of a child that Kristi, who became pregnant via artificial insemination, had given birth to in February 2013.
Kristi moved to dismiss the divorce and custody petitions, arguing that the state law and Constitution ban recognition of out-of-state same-sex marriages.
On Tuesday, District Judge Barbara Nellermoe ruled that the case could continue because state laws and a constitutional amendment banning same-sex marriage violated the U.S. Constitution’s due process and equal protection guarantees.
Nellermoe allowed the case to proceed because she felt recognizing the marriage was in the best interest of the child: “By denying their parents the right to marry, Texas has created a suspect classification of children who are denied equal protection of the law under the 14th Amendment.” Nellermoe also cited the ruling by U.S. District Judge Orlando Garcia, who last February ruled that Texas’ marriage ban was unconstitutional: “In a well-reasoned opinion by Judge Orlando Garcia, the federal district court found that a state cannot do what the federal government cannot — that is, it cannot discriminate against same-sex couples.” Regarding the custody issue, legally Kristi would be considered the child’s only parent because Texas doesn’t recognize same-sex marriages. Allison would have no custodial rights, since she’s neither the biological nor adoptive parent. On the other hand, had the child been born to a straight married couple or a same-sex couple whose marriage was recognized by that state, he or she would be the child of both parents.
The issue becomes more muddled when the couple is married in the eyes of the federal government but not their state of residency. The decision on this case’s merits will be just as interesting as the case’s influence on marriage equality. Just two days after Judge Nellermoe’s decision, the Fourth Court of Appeals halted the divorcing proceeding while it considers Texas’ Attorney General Greg Abbott’s request to vacate the decision. Abbott argued that the stay was needed “to avoid the legal chaos that would follow if the trial court’s broadly worded ruling is mistakenly interpreted as authorization for the creation or recognition of same-sex marriages in Bexar County or throughout the state.” A lot more to come with this case. But I love that this new angle in picking apart gay marriage bans (although not divorce itself obviously). As always, stayed tuned!Marriage is in the Best Interest of the Child
Ruling Stayed