3-judge panel from 5th District Court of Appeals sets oral arguments for April 21; decision goes against wishes of Texas AG’s office
Against the wishes of Texas Attorney General Greg Abbott’s office, a state appeals court in Dallas has scheduled oral arguments in a high-profile same-sex divorce case.
An all-Republican, three-judge panel of the 5th District Court of Appeals is set to hear oral arguments April 21 in the AG’s appeal of a district court’s October ruling, "In the Matter of the Marriage of J.B. and H.B."
J.B. and H.B., whose full names aren’t being used in the proceedings, were married in Massachusetts in 2006 before moving to Texas in 2008. In January 2009, J.B. filed for a divorce in Dallas’ 302nd Family District Court.
A day later, the AG’s office intervened in the case, arguing that Judge Tena Callahan couldn’t grant the divorce because Texas doesn’t recognize same-sex marriage.
But in her ruling last fall, Callahan declared that the state’s bans on same-sex marriage violate the equal protection clause of the 14th amendment to the U.S. Constitution.
Pete Schulte, a Dallas attorney who’s been joined in representing J.B. by the powerful Austin firm Akin Gump Strauss Hauer and Feld, said he’s pleased with the court’s decision to hear oral arguments.
The attorney general’s office stated in its brief to the appellate court that oral arguments aren’t necessary because the legal issues presented are "far from novel." But Schulte called that claim "preposterous."
"That’s why we’re litigating it, because it’s never been litigated before," Schulte said of same-sex divorce in Texas.
"The Court of Appeals in Dallas is doing their job," he said. "They’re not just being flippant about this. They’re paying attention. They want to hear the arguments, and I think that’s good for both sides.
"This is just telling me that there is no slam-dunk answer on this," Schulte added. "Our hope is that the court of appeals says, ‘You know, you’re right, we’re not going to allow same-sex marriage in the state of Texas, but for the limited purpose of divorce, we have to recognize the marriage just for a split-second from another state, to allow them to end that relationship legally in Texas, through a divorce proceeding, not through any other type of proceeding that may look like divorce.’"
Ken Upton, a senior staff attorney at Lambda Legal, the LGBT civil rights organization, said he isn’t particularly surprised by the appeals court’s decision to hear oral arguments.
"If I were the panel, I would want arguments, because if they follow the law, as opposed to following the political pressure, it’s a winning argument," Upton said. "If I were the appellate court, I’d feel in a bind maybe, because the law really is supportive of the people trying to get a divorce, and they’re faced with big, hot-button issues."
Upton said if the appeals court rules against the attorney general’s office, Abbott will undoubtedly appeal the decision to the Texas Supreme Court.
"Then I think it becomes a lot more political at that point, and that’s a court that’s not been historically friendly on gay issues," he said.
In their brief to the appeals court, J.B.’s attorneys allege that the attorney general’s involvement in the case is "wholly politically motivated."
But Schulte said he now believes Abbott’s strategy may backfire. Abbott, a Republican, is up for re-election in November. And Schulte said he thinks the AG’s office didn’t want the media attention associated with oral arguments.
"I think that’s the worry for Abbott’s office in a political year is, why aren’t we focusing on other things like fixing transportation, or fixing the child support system, or doing other things that his office is responsible for, versus going after something that’s going to affect such a small percentage of people’s lives?" Schulte said. "They have lawyers working on this like crazy. How many tax dollars have been expensed for an issue that I think if you polled the majority of likely voters in Texas, maybe 25 percent would care?"
Democrat Barbara Ann Radnofsky, who faces Abbott in the general election, recently penned a column for The Huffington Post criticizing the incumbent’s involvement in same-sex divorce cases. In addition to the Dallas case, Abbott recently appealed an Austin judge’s decision to grant a divorce to a lesbian couple.
Radnofsky told Dallas Voice this week she believes Abbott’s involvement is "a political mistake." Radnofsky also said the same-sex divorce cases are an example of "bad lawyering" by Abbott.
"His injection of partisanship in his decision-making is causing his lawyering to suffer," Radnofsky said.
In its brief to the appellate court, the AG’s office argues that a procedure known as "voidance," not divorce, is the appropriate way to dissolve marriages that aren’t valid under Texas law.
But J.B.’s attorneys counter that voidance doesn’t provide the same relief as divorce, and they question whether a voidance would be honored by other states like Massachusetts.
Schulte compared voidance — used to dissolve things like bigamous or incestuous marriages — to "separate but equal."
"As we know, based on our history, separate but equal does not work," he said.
The AG’s office alleges in its brief that prior to Callahan’s ruling, no judge in the nation had ever struck down the "traditional definition of marriage" as a violation of the 14th amendment. The AG’s argument relies heavily on the U.S. Supreme Court’s 1972 decision in Nelson v. Baker, which rejected a bid for marriage equality based on equal protection.
The AG’s office also says Callahan’s ruling marked the first time any court in the nation has refused to enforce the provisions of the federal Defense of Marriage Act, a 1996 law that says states aren’t required to recognize same-sex marriages from other states.
But J.B.’s attorneys counter that the case is more about divorce than marriage.
In December, at the request of J.B.’s attorneys, Callahan amended her original order to say that Texas’ 2005 constitutional amendment banning same-sex marriage "is not implicated in this proceeding."
Instead, Callahan said in the order, denying the couple a divorce under the state’s Family Code violates their rights of equal protection, due process, freedom of association and travel.
The brief from J.B.’s attorneys argues that Texas courts have traditionally used the "place of celebration" test to determine whether a marriage is valid for the purposes of divorce.
"No matter how vociferously Texas opposes same-sex marriage, it cannot prevent J.B. and H.B. from getting married, because they are already lawfully married," the brief states. "Thus, even if Texas has a legitimate interest in protecting ‘traditional marriage,’ that policy is not applicable in divorce because a marriage has already occurred."
Schulte said the decision to focus on divorce instead of marriage doesn’t mean the appeals court can’t still declare the marriage bans unconstitutional. Indeed, the briefs also cite Perry v. Schwarzenegger, an ongoing case challenging the constitionality of California’s Proposition 8.
"We’re not saying that the [Texas] constitutional amendment isn’t unconstitutional in our opinion," Schulte said. "What we’re saying is that for us to get the relief that our client needs, we don’t necessarily think the Court of Appeals may have to go that far."
The oral arguments will be heard by Justice David L. Bridges, R-Fate, who was elected to the court in 1996; Justice Kerry P. Fitzgerald, R-Dallas, who was appointed by Gov. George W. Bush in 1999; and Robert M. Fillmore, who was appointed by Gov. Rick Perry in 2009.
A representative from the 5th District Clerk’s Office said the proceeding is open to the public, but no TV cameras will be allowed.
This article appeared in the Dallas Voice print edition March 19, 2010.