One Austin family law attorney is taking her client’s divorce case to the Texas Supreme Court, arguing that the landmark 2015 US Supreme Court decision in Obergefell v. Hodges mandating state recognition of homosexual marriage renders the state’s no-fault divorce law unconstitutional as applied to her client’s marriage.

Mark and Shawn Lecuona were married in 1994 and have two children. According to court records, the Lecuonas’ marriage was based on the Christian concept that the marriage “was a covenant sealed by the blood of Jesus” and the pair could not be separated. Mark moved out of their shared marital residence in 2008 and filed for divorce in 2014. However, Shawn asserts the legitimate religious and personal ends of the marriage have not been destroyed and that her marriage to Mark must continue.

A Travis County district judge disagreed and issued a Final Decree of Divorce in Lecuona v. Lecuona in September, 2016, under Texas Family Code §6.001, which allows the state to terminate a marriage “without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”

In her petition to the Texas Supreme Court, Shawn Lecuona argues that Section 6.001 is unconstitutional under the precedent set in Obergefell.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were,” wrote Justice Anthony Kennedy for the majority. “The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”

The Supreme Court ruled that states could not define marriage as a union between a man and a woman or substitute their interests in the legitimate ends of marriages for the personal interests of same-sex spouses. Similarly, Shawn Lecuona argues that through Section 6.001, the State of Texas is substituting its choices regarding the legitimate ends of her marriage for her own.

“Due process requires the state to afford respect and protection to individual choices regarding marriage, including those related to the private, intimate, and unique purposes or ‘legitimate ends’ of each marriage,” said Cecilia Wood, an Austin family lawyer who represents Shawn Lecuona. “This is equally true in when those choices are based on other constitutionally protected rights, such as freedom of religion and conscience.”

The Texas Supreme Court will have to decide whether it will grant Shawn Lecuona’s petition for review and hear full briefing and argument in the case. If the state’s highest court rules against her or refuses to hear the case, Shawn Lecuona may appeal to the United States Supreme Court.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.