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.
 

 

One thing this election cycle has done is to bombard the public with negative impressions about the American democratic process.  Your children are absorbing all of this in as well- and getting a very negative first impression of our how our nation elects our representatives in government.  But negativity is not the whole picture.  We know that there are many honest and good citizens who seek office with the sincere motivation to make our nation a better place.  And while cynics and pundits may make headlines by gleefully sneering at the side shows in politics, the silent majority of Americans are hopefully expectant that election day will be the beginning of a better time.  For all it's faults, most Americans take great pride in what this nation is, and what it potentially could be.  Deep down, most of us have faith that our democratic process is the best the world has to offer, and we have feel that our elections will make us even stronger nation.

As a patriotic parent, you want your children to love America as much as you do.  So how can you teach your children about American democracy without them being permanently affected by the negativity they are seeing in the media?  Here are five 'winning' things parents can do to make election day special and give kids a positive view of our democratic process:

     1.  Be a Role Model of Involvement
Volunteer in a political campaign and give your kids a firsthand look at how their democracy works by getting them involved, too.  Start by giving them a candidate's T-shirt, cap or button.  Plant a campaign sign in the front yard.  They'll have lots of fun going door-to-door with you, handing our flyers, or working in campaign headquarters.

     2.  Watch the Debates Together
Watch the candidates' debate on TV and ask the kids who they thought won.  For older kids, you might consider attending the debate, if open to the public.  If you've got a houseful, organize your own "political debate" at the dinner table.  For once, the kids can actually argue with your blessing, but it is a great opportunity to model that you can argue a political point, but still love and respect those with different views.

     3.  Play Politics
Children play as a safe and fun way to prepare themselves for future adult roles.  Encourage them to role play about politics.  Suggest to your child's teacher that the class have a mock election at school.  Kids Voting USA offers special age-appropriate Election Day activities.  Classes from kindergarten through high school can exercise their "right" to vote through this hands-on learning experience.   Find out if there is a Kids Voting USA affiliate near you and if such a program can established at your children's school.  It's non-partisan- and fun.

     4.  Get Out The Vote With Your Kids
On Election Day, involve your kids in get-out-the-vote activities, and then throw your own election night party at your home for friends, neighbors, and the kids.  Or, if you are working for a candidate, let your kids join the party at campaign headquarters to watch the returns come in.

     5.  Kid Candidates
Got a kid with political ambitions?  Encourage him or her to run for school office (even if you have to handle the tears that might go with the agony of defeat).  In order to run a campaign, they will need a campaign manager, a snappy campaign slogan, and a platform.  Make the campaign a family affair with everyone pitching in to make posters and buttons as well as being resident guinea pigs for the candidate's speech practices.  Running for office is a great way to understand the challenge and excitement of the democratic process.  It will give your child new respect for candidates who put themselves on the line this way.