Man appeals dismissal of suit alleging Texas AG fired him for being gay

Jason_Smith

Jason Smith

The case of a gay Tyler man who sued the Texas Attorney General’s office for employment discrimination comes before the Court of Appeals in Austin this week.

Vic A. Gardner worked for the AG’s child support division for about three years. He received excellent performance reviews until an office Halloween costume party, the suit alleges. When he attended dressed as a geisha girl, his supervisor determined he was gay.

Once his sexual orientation was assumed by the supervisor, he was repeatedly disciplined until he resigned in February, according to his attorney, Jason Smith of Fort Worth.

In a sworn affidavit, the supervisor admitted he had a religious objection to Gardner being gay.

“You are who you are, but try not to be so out,” Smith said his client was told.

Knowing Gardner’s father was a Baptist minister, the supervisor asked Gardner at one point how he could do that to his father.

In October 2010, a lower court judge ruled the AG had immunity from prosecution and dismissed the case. Gardner appealed in November 2010 but withdrew his appeal in January 2011.

Gardner’s new appeal is asking the court to order a jury trial. The AG contends all Gardner can do is ask for reinstatement. Smith said his client is entitled to lost wages and more.

—  David Taffet

Gay divorce cases before Texas Supreme Court

Panel requests briefs, indicating it may rule on whether couples married elsewhere can divorce here

CLICK HERE TO READ BRIEFS FROM THE DALLAS GAY DIVORCE CASE

JOHN WRIGHT  |  Senior Political Writer
wright@dallasvoice.com
Nearly three years after the gay Dallas resident known as J.B. filed an uncontested petition for a divorce from his husband, H.B., the couple’s matrimonial fate rests in the hands of the state’s highest court.

The Texas Supreme Court recently requested briefs from both sides as justices decide if they’ll review the issue of whether same-sex couples legally married elsewhere can divorce in Texas.

J.B. and H.B. were married in Massachusetts in 2006 before moving to Dallas. After J.B. filed his petition for divorce in January 2009, Democratic State District Judge Tena Callahan of Dallas ruled in October of that year that she had jurisdiction to hear the case — and in doing so declared Texas’ bans on same-sex marriage unconstitutional.

Republican Attorney General Greg Abbott immediately intervened and appealed Callahan’s decision, which the 5th Court of Appeals in Dallas overturned last year, ruling that Texas judges cannot grant same-sex divorces because the state doesn’t recognize same-sex marriage.

In February, J.B.’s attorneys at Akin Gump Strauss Hauer & Feld filed their petition for review to the Texas Supreme Court.

“They’re in limbo,” Akin Gump’s Jody Scheske said of J.B. and H.B. “They’re still married. They don’t want to be married. Texas can’t prevent them from getting married because they’re already married. All they want is the equal right to divorce that should be available to everybody.”

J.B. and H.B.’s is one of two same-sex divorce cases currently pending before the Texas Supreme Court. The panel has also requested briefs in State of Texas v. Angelique Naylor and Sabrina Daly.

In the Naylor case, the 3rd Court of Appeals in Austin upheld a Travis County district court’s decision to grant a divorce to Naylor and Daly, a lesbian couple. The appeals court ruled that Abbott intervened in the case too late, but the AG’s office has appealed the decision to the Texas Supreme Court.

Akin Gump is also representing Naylor and Daly. Scheske said the high court’s decision to request “briefs on the merits” in the two cases is part of its decision-making process about whether to review them.

“It’s actually not an indicator that they plan to take the case necessarily, but if they don’t request briefs on the merits, they will not take the case,” he said. “They only take a very small percentage of the cases that are actually petitioned.”

Scheske said he hopes the high court will accept J.B.’s case and decline the AG’s petition in Naylor. He said it’s also possible the court will consolidate the two cases. There is no timeframe for the Supreme Court to decide whether to review the cases, and at this point it’s unlikely oral arguments would be heard anytime before the spring.

“They can take as long as they want to or as short as they want to,” Scheske said. “So now we hurry up and wait.”
Asked whether he’d appeal an unfavorable ruling to the U.S. Supreme Court, Scheske said he is unsure. “If we lost the cases at the

Texas Supreme Court, that would be the next and final step, but I haven’t discussed that with either client, just because we don’t know what’s going to happen,” he said.

A spokesman for the AG’s office declined to comment on the cases beyond the briefs it has already filed.

Ken Upton, a Dallas-based senior staff attorney at the LGBT civil rights group Lambda Legal, said he believes the Texas Supreme Court will take the cases.

“I think this an awful lot for them to read not to take it,” Upton said of the briefs the court has requested. “They’re looking at what happened in Austin and what happened in Dallas, and I suspect they want to have a uniform result. Let everybody guess what that will be, but I’m not terribly optimistic.”

Upton said he thinks it’s unlikely the U.S. Supreme Court would hear an appeal, meaning the impact of the cases will be limited to Texas.

This article appeared in the Dallas Voice print edition October 21, 2011.

—  Kevin Thomas

Liberty Institute, on behalf of Chisum and Staples, asks Texas’ high court to take gay divorce cases

Kelly Shackelford

The right-wing, Plano-based Liberty Institute has filed briefs asking the Texas Supreme Court to hear two same-sex divorce cases so justices can resolve allegedly conflicting opinions from state appellate courts in Austin and Dallas.

The Liberty Institute announced today that it filed the briefs on behalf of State Rep. Warren Chisum, R-Pampa, and Republican Agriculture Commissioner Todd Staples, a former state senator from Palestine.

In both cases, district judges ruled to allow same-sex divorces, prompting Republican Attorney General Greg Abbott to intervene. In the Dallas case, the 5th court of appeals overturned Democratic Judge Tena Callahan’s ruling. J.B., the gay Dallas resident who’s seeking a divorce from his Massachusetts marriage to H.B., appealed the decision to the Texas Supreme Court in March.

In the Austin case, State of Texas v. Angelique Naylor and Sabina Daly, the 3rd court of appeals upheld the district judge’s decision, saying Abbott’s attempt to intervene was too late.

“The district judges’ rulings granting same-sex divorces illegitimately overturned the will of more than two million Texans and their elected officials,” Liberty Institute President and CEO Kelly Shackelford said in a press release. “The debate over same-sex marriage and divorce should play out in our democratic institutions and should not be short-circuited by activist judges.”

The Liberty Institute previously filed a brief on behalf of Chisum and Staples in the Dallas case when it was before the appeals court.

Read a copy of the Liberty Institute’s brief in the Dallas case here, and the Austin case here.

Austin-based attorney Jody Scheske of Akin Gump Strauss Hauer & Feld, which is representing both J.B. and Naylor/Daly, declined to comment on the briefs.

—  John Wright

Attorney General’s office warns of scam following leak of state workers’ personal information

This isn’t a specifically LGBT news item, but I know for a fact that there are tons of  teachers and other state workers — retired and otherwise — who are LGBT, so here you go:

Texas AG Greg Abbott

State Attorney General Greg Abbott today warned that retired and current state workers whose personal information was recently “inadvertently stored on a publicly accessible website” by the Texas Comptroller’s Office are apparently now being targeted by scammers out to steal identities.

Abbott’s press release said that an employee of the Health and Human Services Commission has reported receiving a telephone call from someone who identified himself as “Mike” with the Employees Retirement System of Texas (ERS) and said he was calling to confirm the last four digits of the employee’s Social Security number. (Just so you know, having the last four digits of your SSN lets someone who knows what they are doing to access all sorts of personal information about you.)

The employee who reported the call refused to give the caller their SSN, and the caller finally hung up with the words, “Good luck to you.”

—  admin

Bill would ease sexting penalties, but consensual gay sex can still be a felony for teens in Texas

Attorney General Greg Abbott

Texas Attorney General Greg Abbott is endorsing legislation that would ease criminal penalties for teens who are convicted of sexting — transmitting explicit photos of themselves or other minors using computers and mobile devices.

Currently, teens who send or receive photos of someone who is underage can be charged with third-degree felony child pornography, punishable by up to 10 years in prison, and forced to register as sex offenders for the rest of their lives.

Under SB 408, which was filed today, sexting would become a class-C misdemeanor for first-time violators who are under 18.

“Studies show that teenage students are increasingly taking, sending and receiving explicit pictures of themselves on their mobile telephones,” Abbott said in a press release. “This dangerous trend is harmful to young Texans. We are joining with Sen. Kirk Watson to address the growing problem of sexting and educate – not criminalize – young Texans who make the unwise decision to participate in it.”

For once we agree with Abbott here. This bill makes sense for both straight and LGBTQ teens, and perhaps especially for gay teens in the age of Grindr, etc.

But if our attorney general truly supports the concept of not criminalizing teens, he should also support efforts to fix the state’s discriminatory age-of-consent laws, commonly referred to as “Romeo and Juliet” provisions.

As we’ve noted before, if a 17-year-old MALE has consensual sexual contact with a 16-year-old MALE in Texas, the older individual can be charged with a second-degree felony and sentenced to up to 20 years in prison. On the other hand, if the older individual is MALE and the younger person is FEMALE (or vice versa), the older person can argue an “affirmative defense” and have the charge dismissed on that basis.

In other words, while SB 408 would make sexting a class-C misdemeanor, gay teens who have consensual sex, unlike their straight peers, have no defense against a charge of indecency with a minor.

Rep. Garnet Coleman, D-Houston, has introduced bills in previous sessions that would fix this discriminatory law, but there’s no word on whether he plans to do so this year.

Even if he does, don’t expect Abbott to support it.

UPDATE: Coleman’s office confims that he does plan to file the bill again this year.

—  John Wright

BREAKING: Texas appeals court upholds gay divorce, rules against AG’s office in Austin case

Angelique Naylor

A state appeals court has upheld a divorce that was granted to a lesbian couple in Austin last year, saying Texas Attorney General Greg Abbott lacks standing to appeal the divorce because he intervened in the case too late.

“Because the State lacks standing to appeal, we dismiss this appeal for want of jurisdiction,” a three-judge panel of Texas’ 3rd District Court of Appeals wrote in its decision posted earlier today.

Travis County District Judge Scott Jenkins granted a divorce to lesbian couple Angelique Naylor and Sabina Daly last February. Naylor and Daly married in Massachusetts in 2004 before returning to Texas and adopting a child. Abbott’s office appealed Jenkins’ decision, arguing that judges in Texas cannot grant same-sex divorces because the state doesn’t recognize same-sex marriage.

Abbott’s office won an appeal last year of a same-sex divorce in Dallas, where the 5th District Court of Appeals ruled in his favor.

Jennifer Cochran, an attorney who represented Naylor, explains on her blog that the Austin appeals court’s decision doesn’t address the constitutional issues related to gay divorce:

The Appellate Court dismissed the appeal for “want of jurisdiction” finding that the State was not a party of record and thus lacked standing to appeal.

So what’s this mean? Well this particular divorce was granted and upheld by the appellate court because the AG intervened after the divorce was granted orally by Judge Jenkins and because neither party raised constitutional challenges to the Family Code or the Texas Constitution.  If either party had, the appellate court would have most likely found that the AG did have standing and would have addressed the constitutional arguments in addition to the procedural ones.  So, we will leave the constitutional challenge for another day (or case).

Abbott’s office could now drop its appeal, request that the entire 3rd District Court of Appeals hear the case, or appeal the three-judge panel’s ruling to the Texas Supreme Court.

According to the Texas Tribune, Lauren Bean, a spokeswoman for Abbott’s office, said the decision “undermines unambiguous Texas law.”

“The Texas Constitution and statutes are clear: only the union of a man and a woman can be treated as a marriage in Texas,” she said, adding, “The Office of the Attorney General will weigh all options to ensure that the will of Texas voters and their elected representatives is upheld.”

More to come …

—  John Wright

New Mexico may recognize same-sex marriage

New Mexico Attorney General Gary King

New Mexico Attorney General Gary King says same-sex marriages performed elsewhere may be valid in his state.

“A comprehensive legal analysis by my office concludes that valid same-sex marriages in other states would likely be valid in New Mexico,” King said.

According to the Santa Fe New Mexican, the opinion hasn’t been tested in court. However, an attorney general’s opinion carries quite a bit of weight.

New Mexico’s new governor, Susana Martinez, opposes same-sex marriage. Her predecessor, Bill Richardson, was unsuccessful getting a marriage-equality bill through the legislature.

Maryland’s attorney general has issued a similar ruling. New York and Rhode Island both recognize same-sex marriages performed in other states.

—  David Taffet

Top 10: As Prop 8, DOMA cases proceeded, Texas made its own marriage news

Marriage
LANDMARK RULING | Marriage equality supporters celebrate outside San Francisco City Hall after Judge Vaughn Walker’s August ruling declaring Prop 8 unconstitutional. (Rick Gerharter)

No. 4:

View all of the Top 10

As the year began, all eyes were on California, where conservative superstar Ted Olson and liberal luminary David Bois joined forces to challenge the state’s voter-approved constitutional amendment banning same-sex marriage. The case is Perry v. Schwarzenegger, but both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown declined to defend Prop 8. As a result, ProtectMarriage.com, the main group behind the initiative, filed to intervene and defend it in court. On Aug. 4, six months after the trial began, Judge Vaughn Walker issued his ruling striking down the ban as unconstitutional, prompting celebrations across the country. The state refused to appeal, but the amendment’s supporters did. In December, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit convened to hear oral arguments in the Prop 8 case. The judges grilled attorneys on both sides, but marriage equality advocates said they were encouraged by the hearing. A ruling is expected next year, but the case likely will end up at the Supreme Court.

Meanwhile, two lawsuits challenging the federal Defense of Marriage Act went to trial in Massachusetts this year, and in both cases, DOMA came out the loser. Those cases are also now on appeal.

In Texas, Attorney General Greg Abbott continued his crusade against same-sex divorce. In a Dallas case, Abbott’s office won a victory in May when a state appeals court overturned a judge’s decision to grant a same-sex divorce. Abbott’s appeal of another divorce in Austin is pending.

Meanwhile, transgender issues and LGBT marriage rights collided in July as Houston trans woman Nikki Araguz found herself going up against her in-laws, following the death of her husband, volunteer firefighter Thomas Araguz. Araguz’s family and former wife claimed his marriage to Nikki was invalid because she was born a biological male, and that all his benefits legally should go to them instead of Nikki. The case is awaiting trial.

And Texas would make big marriage news again in November, when a gay couple from Dallas announced they’d been legally married without leaving the state. Mark Reed-Walkup and Dante Walkup held their wedding ceremony at the W-Dallas hotel, but it was officiated via Skype from Washington, D.C., where same-sex marriage is legal. A few weeks later, D.C. officials declared the marriage invalid. The couple later physically traveled to D.C. and got married again. They’ve also renewed a complaint against The Dallas Morning News for refusing to publish their wedding announcement.

Elsewhere, Illinois became the sixth state to approve civil unions. In Hawaii, the legislature approved a bill allowing same-sex civil unions, but Republican Gov. Linda Lingle vetoed it. Minnesota Gov. Tim Pawlenty vetoed a bill that would have given same-sex partners control over the dispensation of their partners’ remains after death, because he supports “traditional marriage.”

Wisconsin’s Supreme Court upheld that state’s gay marriage ban.

Internationally, Portuguese President Anabel Cavaco Silva signed into law legislation that allows same-sex marriage. Argentina’s legislature approved a bill legalizing gay marriage, and President Cristina Fernández de Kirchner quickly signed it into law.

— Tammye Nash

This article appeared in the Dallas Voice print edition December 31, 2010.

—  Kevin Thomas

City asks AG’s office whether records related to raid of The Club-Dallas should be released

The city of Dallas has requested an opinion from the Office of the Attorney General of Texas as to whether the city must release records related to the Police Department’s Oct. 8 raid on The Club-Dallas, a gay bathhouse in Deep Ellum.

Dallas Voice has requested, under the Texas Public Information Act, all records related to the 11 arrests that occurred during the raid, as well as all documents related to a complaint DPD says was filed against The Club-Dallas by a citizen that led to the raid.

In a Nov. 2 letter to Texas Attorney General Greg Abbott responding to the Voice’s request, Assistant City Attorney J. Middlebrooks wrote that parts of the requested information are protected from public disclosure. A full copy of the letter is below. The AG’s office has 45 days to issue a decision.

—  John Wright

Nutjob candidates in other states make Texas politics seem downright boring this year

New York gubernatorial candidate Kristin Davis

Texas has produced its share of crackpot politicians over the years. But compared to what’s going on across the country, the Lone Star State seems downright boring in 2010.

While Gov. Rick Perry said the Arizona anti-immigration law is not right for Texas, his counterpart in Arizona claimed the law is necessary because of decapitated bodies found in the desert. Jan Brewer, running for re-election as governor of Arizona, has not been able to produce evidence to back up her claim.

Meanwhile, Rand Paul, who’s running for the Senate in Kentucky, said he thinks restaurants should have the right to refuse service based on race. Not that he’d do that if he owned a restaurant, but they should have that right.

Sharron Angle, who’s running for Senate in Nevada, thinks alcohol should be illegal. Last time we looked, Las Vegas was in Nevada.

And after being criticized last week for running an ad showing a map of Mexico with stock photos of Latinos and talking about a stronger immigration law, Angle said she was talking about immigration from Canada and didn’t know if the people in the ad were Mexican. She’s ahead in the polls.

—  David Taffet