Plaintiff’s attorney expects more anti-gay briefs to be filed, says anti-gay groups may protest at courthouse during hearing
Two Republican state officials who spearheaded Texas’ constitutional amendment banning same-sex marriage have filed a court brief opposing a gay divorce in Dallas.
State Rep. Warren Chisum of Pampa and Agriculture Commissioner Todd Staples, a former state senator from Palestine, filed the amicus brief in Dallas’ 5th District Court of Appeals on Friday, April 2.
The Court of Appeals is set to hear oral arguments April 21 in the same-sex divorce case involving two Dallas men, J.B. and H.B., who were married in Massachusetts in 2006.
Last October, Democratic state District Judge Tena Callahan of Dallas ruled she could hear J.B.’s divorce petition because Texas’ bans on same-sex marriage violate equal protection under the U.S. Constitution.
Republican Attorney General Greg Abbott, who sought to intervene in the divorce case after it was filed in January 2009, has appealed Callahan’s decision.
Chisum and Staples filed their brief with the help of the right-wing, Plano-based Liberty Institute.
In an interview this week with Dallas Voice, Chisum noted that he authored both the 2005 constitutional amendment and a 2003 statutory ban on same-sex marriage.
"I filed the brief just because I think it’s my duty to defend what I got the rest of the members of the House and Senate to pass, and the governor to sign," Chisum said. "We’re defending our actions as the legislative branch of government."
Asked what legal remedy he would propose for J.B. and H.B., Chisum said, "If they want to go back to their state, whatever state they came from, and get the marriage — or whatever they call it — dissolved there, that’s OK with us, but it’s not the state of Texas that needs to be doing it."
Chisum added that he doesn’t believe same-sex divorce is a civil rights issue, because being gay is a choice.
"Everyone has the ability to get married," Chisum said. "All they have to do is find someone of the opposite sex."
Chisum, a 20-year member of the House, is unopposed in his bid for re-election this year.
Staples, who faces gay-friendly Democrat Hank Gilbert in November, didn’t return a phone call seeking comment. Staples, who served in the Senate from 2001-07, lists the 2005 amendment under "significant legislation authored/sponsored" on his campaign Web site.
Pete Schulte, the gay Dallas attorney who initiated the same-sex divorce case, declined to discuss legal aspects of the appeal this week.
"From a political standpoint, they’re going to try to use this to reinvigorate their base," Schulte said. "It’s the same reason why the attorney general is still pursuing it."
Schulte called the Liberty Institute’s brief "defamatory" and said Chisum has "pretty much no credibility in Texas politics."
He also said Staples should have stayed out of the case since he’s no longer a state senator.
"Politicians generally need to worry about what they’re doing now, not what they were doing in the past," Schulte said. "He may have been involved with that debate, but now he’s our agriculture commissioner, and that is not in his purview to be worrying about."
Schulte said he wasn’t surprised by the brief and expects others from right-wing groups before oral arguments. He said it’s up to the Appeals Court to decide what, if any, weight it gives to amicus briefs.
Schulte, who’s already appeared with J.B. on "The Daily Show with John Stewart," said he was interviewed this week for a story about same-sex divorce for Newsweek and MSNBC.
He also said there may be anti-gay demonstrations outside the courthouse on April 21, and he added that the LGBT community should be prepared to respond.
Ken Upton, a senior staff attorney for Lambda Legal in Dallas, said amicus briefs filed by legislators are hardly uncommon.
Upton said legislators file amicus briefs because they’re typically barred by judges from becoming parties to cases.
"This is now the way they know they can get in," Upton said. "They get one of these hate groups to write an amicus brief for them. … We file them a lot in cases that we’re not involved in, but we’re not a hate group."
Upton said amicus briefs from legislators are more common when an attorney general has declined to take up a case.
"The interest of the Legislature is to pass the law. It’s not their job to defend it," Upton said. "It’s the courts whose job it is to say whether it’s constitutional or not.
"This is pandering to the electorate," he added. "This is something they can issue a press release about, and talk about how they stood up for good American values."
The AG’s Office didn’t respond to a request for comment this week.
The AG’s office has also attempted to intervene in a same-sex divorce case in Austin.
There, state District Judge Scott Jenkins last month upheld his decision to grant a divorce to two women who were married in Massachusetts. Jenkins declined to consider Abbott’s request to intervene.
Jennifer Cochran, the attorney representing one of the women, said this week she’s unsure whether Abbott’s office will appeal Jenkins’ decision. The AG’s office has 30 days in which to do so.
At last month’s hearing, the judge asked an attorney from the AG’s office not to pursue the case, because it could negatively impact a 4-year-old boy who was adopted by the couple. The judge told the AG’s office to instead focus on the Dallas case, which likely will be decided by the Texas Supreme Court.
Cochran said this week the couple’s breakup has been highly contentious. She said a divorce proceeding was actually a "last resort" after other legal avenues failed to settle issues including child custody, and division of joint business and real estate holdings.
"How many times does she have to sue her wife when a divorce could be the answer to all of it?" Cochran said. "Above all, she wanted to have a better co-parenting relationship. The poor child is having to deal with two moms that hate each other right now. Can you imagine trying to divorce someone or end a relationship and you keep getting dragged into court?"
This article appeared in the Dallas Voice print edition April 9, 2010.