The ground
breaking Supreme Court case of Obergefell v. Hodges, 135 S. Ct. 2584 (2015),
which links the right to marriage as a personal right protected under the U.S.
Constitution Has sent ripples throughout the family law world. The
ramifications of this case will be talked about for many years to come and just
what its limits are will be the topic a family law for just as long.
As lawyers ,
it's our job to take prior cases end apply them to the cases we have before us.
But sometimes this effort stretches
thing a bit far.
This was the
case of Lecuona versus. Lecuona , No. 03-17-00136-CV out of
Travis County. The case was appealed all
the way up to the U.S. Supreme Court, which refused to hear the case.
Shawn Hall Lecuona
appealed from a final divorce decree that ended her marriage to Mark R.
Lecuona.
Mark was the petitioner in the original case, and the
sole ground for divorce on which he relied, and which the district court
subsequently found, was the no-fault "insupportability" ground. Insupportability is the basis of the “no-fault”
divorce scheme in Texas and is by far the most common ground plead for in Texas
divorces.
Shawn opposed the divorce on religious grounds and urged
that Mark's suit, and particularly the no-fault "insupportability"
standard on which he relied, unconstitutionally infringed her protected
interests in what she viewed as an immutable "blood covenant"
among the couple and the Almighty.
In her appeal, Shawn relied United States Supreme Court's
decision Obergefell v. Hodges, which struck down
state prohibitions against same-sex marriage as a violation of a "right to
marry [that] is a fundamental right inherent in the liberty of the person"
and protected by the Due Process and Equal Protection Clauses of the federal
constitution.
She said that Obergefell translates into a constitutional
restriction against Mark using Texas's no-fault divorce law to end a marriage. She
argued that for her professed religious reasons, she desires to stay married
and because this is a sincerely held religious belief, Mark cannot divorce her.
So the question is: Does
the State of Texas violate a person’s First Amendment’s freedom of religion if
it grants a divorce despite a person’s sincere religious belief that marriage
is a sacred bond that cannot be broken.
No.
The Court held that Obergefell, whose analysis
is rooted in the Supreme Court's view of personal liberty, does not, either
directly or by implication recognize what would effectively be an affirmative
constitutional right of one spouse to compel an unwilling other spouse to
remain married.
The Court also points out that to NOT grant a divorce
because of religious grounds of one spouse is a violation of the other spouse's
liberty to NOT hold that believe that liberty and state divorce
laws.
The Court also pointed out Shawn's theory represents a
significant and novel expansion of Obergefell . People are trying to use Obergefell in many
novel ways but the courts have stated that Obergefell is limited in it’s scope
and doesn’t open wide a door to all kinds of novel claims that run contrary to firmly
established principals.
For example in Pidgeon v. Turner, 538 S.W.3d 73, 86-87 (Tex. 2017) the Texas
Supreme Court observed that Obergefell "did not address
and resolve" the issue of "whether and the extent to which the
Constitution requires states or cities to provide tax-funded benefits to
same-sex couples" or invalidate Texas "Defense of Marriage"
enactments, "'[w]hatever ramifications Obergefell may
have for sexual relations beyond the approval of same-sex marriage are unstated
at best . . .'" (quoting Coker v. Whittington, 858 F.3d 304, 307 (5th Cir. 2017), and
citing other authorities recognizing Obergefell's limited scope)).
In general the lower courts must use what the higher courts
have said at face value and not craft novel extensions to suit a desired
outcome.
In Ex parte Morales, 212 S.W.3d 483, 488 (Tex. App.—Austin
2006, pet. ref'd) in a novel constitutional challenge to Penal Code Section 21.12, through that
"as an intermediate state appellate court, we must . . . defer to the
authoritative pronouncements of higher courts that currently define the scope
of the constitutional principles we apply here" (citing Petco
Animal Supplies, Inc. v. Schuster, 144
S.W.3d 554, 564-65 (Tex. App.—Austin 2004, no pet.))).
Covenant marriages are a perennial bill offering in the
Texas State legislature but year after year it fails to pass. Covenant
marriages would make it more difficult for married couples to get a divorce by
adding additional requirements , waiting time , fees or other impediments to
getting a divorce. Only three states so far have adopted covenant marriages and the data
shows that very few residents within those states elect to enter into "covenant marriages". One of the significant reasons why a covenant
marriage statute would be difficult to pass is because of the controverting liberty issue cited in the Lecuona case.
Specifically, that the state cannot impose religious conditions on a either spouse's right to be married or not to be married.
Another aspect to consider are two new statutes under the Texas
government code that went into effect in 2017. These statutes are commonly known as "anti-Sharia law" (although they were not specifically named as such to avoid then being challenged
in court) also limits the ability of the State to put religious conditions
on obtaining a divorce.
Sections § 22.0041 and § 22.022 of the Texas Government Code, states that “litigants in
actions under the Family Code involving a marriage relationship… are protected
against violations of constitutional rights and public policy in the
application of foreign law.”
Foreign law as the proponents of these statutes have
attempted to make sure do not apply in Texas courts was the religious based domestic
laws of Muslim countries or Sharia law. Could these new statutes be used to further prevent religious
conditions being imposed I'm getting a divorce? I think that is interesting food
for thought.
