Allison Leona Flood Lesh and Kristi Lyn Lesh were legally married in the District of Columbia in 2010. Then they moved to Texas, a state that refuses to recognize their marriage because they are both women. During the course of their marriage the Leshes decided to have a child, and Kristi was artificially inseminated. Then, sometime after their child was born, Allison and Kristi’s marriage went sour. Allison filed for a divorce last February, seeking joint custody of the child.
If these facts had played out in a state that recognizes the Constitution’s guarantee of equality for LGBT Americans, it would be a fairly routine case. The court would hear arguments on behalf of both Allison and Kristi, and would focus on the “best interest of the child” in determining custody rights. Texas, however, is not such a state, and Kristi sought to use this to her advantage in the custody proceedings. She argued that, because Texas’ constitution bans recognition of same-sex marriages, the court could not even consider Allison’s divorce petition — or her request for joint custody of the child.
Enter Judge Barbara Hanson Nellermoe, who declared Texas’ ban on marriage equality unconstitutional in an opinion handed down last Tuesday. Among other things, Judge Nellermoe explained that marriage discrimination imposes unconstitutional burdens on the children of same-sex couples — “[i]mmutable protections for the children born of same-sex marriages require the same protections as those born from other marital and intimate relationships, e.g., education, child support, hereditary rights, tax benefits.”
It is unlikely that Nellermoe’s decision will survive contact with the rest of the Texas judicial system — the Supreme Court of Texas is very conservative. An appeals court stayed Nellermore’s ruling just two days after she handed it down, at the request of Attorney General Greg Abbott (R).
Nevertheless, it is unlikely that a majority of the Supreme Court of the United States shares this viewpoint. Indeed, the key swing justice on gay rights issues, Justice Anthony Kennedy, suggested during oral arguments in a marriage equality case last year that he is particularly sympathetic to arguments that marriage discrimination harms children. “There are some 40,000 children in California . . .that live with same-sex parents,” Kennedy explained, “and they want their parents to have full recognition and full status.”
The Leshes’ case also demonstrates why the right to divorce is one of the most important rights afforded to married couples. When a married couple parts ways, legal divorce allows their disputes to be resolved by a neutral judge — rather by arguments or financial strong-arming. It also ensures, as Judge Nellermoe points out in her opinion, that custody disputes will be resolved with the child’s best interests in mind — not on the basis of the fact that some states do not believe their all married couples are deserve the equal protection of the law.
(HT: Josh Blackman)