Dallas judge to hear gay divorce, says marriage ban is unconstitutional

Posted on 01 Oct 2009 at 9:11pm
By JOHN WRIGHT | News Editor wright@dallasvoice.com

Callahan says amendment banning same-sex marriage violates federal equal protection clause

Peter Schulte

A Dallas state district judge has ruled that she has jurisdiction to grant a divorce to a same-sex couple that was married in Massachusetts but now resides in Texas, in what an attorney representing one of the parties is calling a major victory for LGBT equality.

After the divorce petition was filed in January, the state Attorney General’s Office intervened in the case, arguing that Texas courts may not grant divorces to same-sex couples because the state doesn’t recognize same-sex marriages.

But Judge Tena Callahan, a Democrat who presides over Dallas County’s 302nd Family District Court, ruled Thursday, Oct. 1 that Texas’ constitutional amendment prohibiting same-sex marriage — approved by voters in 2005 — violates the equal protection clause of the 14th amendment to the U.S. Constitution.

“That’s what’s significant,” said attorney Peter A. Schulte, who represents the man who filed for a divorce from his husband. “It’s the first time in Texas that a court has acknowledged that there is an issue with the way our statute and our constitution is drafted when it comes to same-sex couples. That is huge for the community.”

Schulte said he expects the AG’s Office to appeal the decision, but not before his client is granted a divorce decree within the next few weeks.

Texas Attorney General Greg Abbott, a Republican, issued a statement Thursday saying he’ll appeal the ruling.

“The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman,” Abbott said. “Today’s ruling purports to strike down that constitutional definition — despite the fact that it was recently adopted by 75 percent of Texas voters.”

Schulte has said he believes Abbott’s motives for getting involved in the case are purely political, and Abbott wasn’t the only leading Texas Republican to issue a statement criticizing the ruling Thursday.

“Texas voters and lawmakers have repeatedly affirmed the view that marriage is defined as between one man and one woman,” Perry said. “I believe the ruling is flawed and should be appealed. I am confident that Attorney General Abbott and the will of Texas voters will prevail, and traditional marriage will be upheld in our state.”

Schulte’s client, identified in court documents only as “J.B.,” married his husband in Massachusetts in 2006 before they moved to Texas. The couple cannot obtain a divorce in Massachusetts because the state has a residency requirement for divorce.

J.B., who asked his full name not be used because he isn’t out as gay at work, told Dallas Voice in January that the couple had been together for 11 years. J.B., who couldn’t be reached for comment Thursday, said in January that if Texas refused to grant him a divorce, it would be ironic since most politicians in the state oppose same-sex marriage.

“I can’t imagine a conservative state like Texas not being joyfully willing to stamp their approval on that,” J.B. said. “I think we’ve been through enough just going through what we’re going through, and should be allowed the same dignity and respect as any two people who have irreconcilable differences. It is my hope that Texas will be satisfied enough to pass the appropriate judgment and not make a grandstand out of this for publicity to further people’s careers, because again, these are human lives that are being dealt with.”

J.B. said he and his husband own a home together in Dallas, but stopped living together in November 2008. He said they have no children and have agreed to a fair division of their assets. He said he also wants to change back his last name after adopting his husband’s.

When the couple tried to obtain a settlement agreement — common among same-sex couples that separate and divide assets in Texas — J.B. and his husband were advised that because they’re married in another state, they need a divorce instead.

If the couple is unable to obtain a divorce in Texas, it could lead to a host of legal complications down the road, according to Kenneth D. Upton Jr., a senior staff attorney in the Dallas office of Lambda Legal, the national LGBT civil rights organization. Upton said the couple’s intact Massachusetts marriage could affect everything from income taxes and estates to Social Security benefits.

Upton was among LGBT legal experts who warned same-sex couples from Texas against traveling to California to get married last year, in part because they wouldn’t be able to get divorced.

But Upton said he anticipates more and more cases like J.B.’s, especially since the legalization of same-sex marriage in any state may prompt gay and lesbian couples to wed prematurely.

Upton has said J.B.’s case is also unlikely to benefit LGBT equality, because it could result in an unfavorable legal precedent, given the conservative makeup of Texas appellate courts. Same-sex couples from Texas have been advised not to wed in other states with the intention of filing lawsuits seeking to have their marriages recognized here.

The danger, Upton said, is that Texas’ constitutional amendment banning same-sex marriage will be interpreted broadly.

“In the case of Texas, they haven’t done that [interpreted it] yet, and right now I wouldn’t want them to do it,” Upton said. “I just think that from the perspective of advancing the cause, this would not be my choice of cases.” •

For updates on the case, visit www.dallasvoice.com.

This article appeared in the Dallas Voice print edition October 2, 2009.

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