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.
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.
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.