Court says Texas AG can’t block gay divorce

Angelique Naylor

Associated Press

AUSTIN — The Texas attorney general can’t block a divorce granted to two women who were legally married elsewhere, an appeals court ruled Friday, Jan. 7.

A judge in Austin granted a divorce last February to Angelique Naylor and Sabina Daly, who were married in Massachusetts in 2004 and then returned home to Texas.

A day after the divorce was granted, Texas Attorney General Gregg Abbott filed a motion to intervene in the case, arguing the judge didn’t have the jurisdiction to grant the divorce because Texas has a constitutional ban on same-sex marriage. The judge ruled that the attorney general’s motion wasn’t timely, a decision Abbott then appealed.

In Friday’s ruling, a three-judge panel of 3rd Texas Court of Appeals in Austin said the state was not a party of record in the divorce case and Abbott therefore did not have standing to appeal.

The ruling, however, does not settle the debate over whether same-sex couples should be allowed to divorce in Texas, where a different appeals court has ruled against a gay couple seeking a divorce in the state.

The 5th Texas Court of Appeals in Dallas ruled in August that gay couples legally married in other states can’t get a divorce in Texas. In that case, Abbott had appealed after a Dallas judge said she did have jurisdiction to grant a divorce — though had not yet granted one — and dismissed the state’s attempt to intervene.

The ruling by the Dallas appeals court’s three-judge panel also affirmed the state’s same-sex marriage ban was constitutional. Texas voters in 2005 passed, by a 3-to-1 margin, a constitutional amendment to ban same-sex marriage even though state law already prohibited it.

Austin attorney Jody Scheske, who handled the appeals in both divorce cases, acknowledged the divergent rulings far from settle the issue of gay couples seeking a divorce in Texas.

“It’s complicated and to some extent remains unsettled and that’s unfortunate,” he said. “If you have a legal marriage you should have the same equal right to divorce as all other married people have.”

But for his client in the Austin case, the Friday ruling means she will remain divorced, Scheske said.

“For the larger issue, what it means is the state of Texas can’t intervene in private lawsuits just because it doesn’t like one of the trial court’s rulings,” he said. “The state was not a party, so they couldn’t intervene after the fact.”

The attorney general can choose to ask the entire Austin appeals court to hear the case there or can appeal the Friday ruling to the Texas Supreme Court.

Abbott spokeswoman Lauren Bean said their office “will weigh all options to ensure that the will of Texas voters and their elected representatives is upheld.”

“The Texas Constitution and statutes are clear: only the union of a man and a woman can be treated as a marriage in Texas. The court’s decision undermines unambiguous Texas law,” Bean said.

Unlike the Dallas case, the Austin case did not examine whether the judge had jurisdiction to grant the divorce. Ken Upton, a staff attorney for Lambda Legal, a national legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people, noted the Austin appeals court decision was in fact quite narrow.

“Basically, the only rule that comes out of it is that (Abbott) waited too long,” he said.

He said the predicament of gay couples seeking divorce in Texas highlights what happens when states adopt “such different views about marriage and relationships.”

“The more we have this patchwork of marriage laws, the more difficult it is for people who don’t have access to the same orderly dissolution,” he said.

—  John Wright

To shop or not to shop at Target?

That is the question for LGBTs angry over donations by Target, Best Buy to anti-gay politician

DAVID TAFFET  |  Staff Writer taffet@dallasvoice.com

Target Retail Store
DECISIONS, DECISIONS | The Target on Central at Haskell is convenient for shoppers in Oak Lawn. But does the company’s donation to an anti-gay politician outweigh the store’s convenience? (David Taffet/Dallas Voice)

Although Target and Best Buy have a 100 percent rating in the Human Rights Campaign’s Corporate Equality Index, they were removed last week from HRC’s Buying for Equality guide.

Fred Sainz, HRC vice president of communications and marketing, called the move “unprecedented.”
At issue are donations the companies made to MN Forward, a political action committee supporting anti-gay Minnesota Republican candidate for governor Tom Emmer.

Target donated $150,000 and Best Buy contributed $100,000 to the PAC.

Emmer supports a constitutional ban on same-sex marriage. He is affiliated with the Christian rock band You Can Run But You Cannot Hide, which has advocated violence against LGBT people.

Gays “play the victim when they are, in fact, the predator. On average, they molest 117 people before they’re found out,” the band’s front man, Bradlee Dean, has said.

“These are nice people,” Emmer said of Dean, who has also said that Muslims are upholding the laws of God by calling for the execution of gays.

Sainz said the corporate index measures a company’s workplace practices as they relate to their employees. Most of the score is based on certain fixed criteria such as offering domestic partner insurance and having nondiscrimination policies in place that cover sexual orientation and gender identity.

Sainz said that up to 15 points can be added for outreach and marketing to the LGBT community. The same number of points may be deducted for contributing to organizations that fight equality or to discriminatory ballot measures.

“Target and Best Buy got 100 percent and deserved the score at the time,” he said. “It’s just a snapshot in time.”

Buying for Equality is made up of companies listed in the CEI that consumers would use. While Lockheed Martin received a 100 percent rating, few people reading the buyers’ guide shop for aircraft engines, Sainz said.

The guide “sends the message to support these companies,” Sainz said.

Target bookends Oak Lawn with one store at Central Expressway and Haskell Avenue and another on Marsh Lane at Northwest Highway, just past Love Field.

Best Buy has an active LGBT employees group in the Dallas area. A local representative of the group said any statement on the issue should come from corporate headquarters, but the corporate spokesperson did not return calls.

Target has a gay employee group but none active locally. North Texas GLBT Chamber of Commerce President and CEO Tony Vedda said that those groups are more common at retail companies’ corporate headquarters and distribution centers than in the stores themselves.

Sainz said that consumer anger has been directed more at Target than Best Buy.

“We go to Target once a week,” he said. “We feel personally betrayed.”

He said that Best Buy is where he goes for electronics but shops there much less frequently.

No formal boycott of either store has been organized, but many in the LGBT community as well as allies and others concerned with social justice issues have stayed out of both Target and Best Buy since the donations were made public.

Employees at Target at Cityplace refused to say whether or not their business has been affected and told this reporter to leave the store.

Neither company reports a financial impact, but three investment funds controlling $57.5 million in stock have filed shareholder complaints.

The New York Times ran an editorial highlighting the company’s public relations nightmare.

Target’s CEO apologized for supporting an anti-LGBT candidate and said the company’s support for the community is unwavering. The company is a sponsor of the upcoming Out & Equal convention in Los Angeles and supports a number of Pride events.

David Ethridge is a local activist who believes in standing on principle when deciding where to shop: “LGBT Americans represent almost$800 billion in annual buying power and are a serious consumer force to be recognized and valued,” he said. “We have to vote with our dollars, because that’s the only language that a corporation speaks.”

Liz Cappon said she disagrees with the donations both companies made but is not boycotting.

“I can guarantee that there are tons of other stores that have done or are currently doing the same thing with candidates and PACs but maybe they just aren’t receiving the same attention right now,” she said.

She said some friends of hers have switched to Wal-Mart. That company’s CEI score is 40 percent.
“I would prefer to shop somewhere that treats their gay employees well,” she said.

“Target wants to sell me socks, and I want to buy socks from Target, but first I have to feel good about where my sock money is going,” Ethridge said.

Ethridge said it’s too early to know what long-term impact the reaction to Target’s donation will have.

Sainz held talks with Target that produced no immediate results. He said his talks with Best Buy continue.

“I think there’s a silver lining,” he said. “We, as a community, sent a message to corporations to factor in our issues.”

He said that there’s no way to measure the effect the boycott of Target has had, but thinks companies that care about public reaction will be more careful about their political donations in the future.

…………………………………………

COMPARISON SHOPPING

Thinking of boycotting? How easy would it be to boycott Target or Best Buy and stick to companies with high Equality Index ratings? We took a few products available at these stores and compared. Prices are current this week from the stores’ websites.

• LEVI STRAUSS

Levi’s not only has a 100 percent rating itself, the San Francisco-based company practically invented corporate equality. They were one of the first corporations to extend benefits equally to their LGBT employees and one of the first to market to the community.

Target: $24.99-$27.99

J.C. Penney: $32.99-$49.99

Levi Outlet Store: $19.90-$128 (Not the same styles but the outlet store offered the widest selection.)

Closest Penney store to Oak Lawn: Valley View Mall. Penney is locally based and has a 95 percent rating

Closest Levi Outlet Store: Grapevine Mills. Company-owned with 100 percent rating.

Jeans alternatives: Gap, Old Navy, Banana Republic. 100 percent rating. Closest stores to Oak Lawn: Banana Republic in West Village. Gap in NorthPark. Old Navy in Galleria. Only carry their own store brands.

• “GLEE” DVD

The first season of “Glee” (available Sept. 14)

“Glee” aired on Fox, owned by News Corp: unrated.

Target: $38.99

Best Buy: $37.99

Borders: $40.59 (Borders is at West Village and has a 100 percent rating)

Alternative: rent it at gay-owned TapeLenders

• CREST TOOTHPASTE, 4.2 oz. size

Crest is manufactured by Procter & Gamble, which has a 100 percent rating.

Target: $2.49

Kroger: $2.50 (Kroger has a 75 percent rating  and has a store on Cedar Springs.)

• FRISKIES, 5.5 oz. can

Manufactured by Purina, which has a 75 percent rating.

Target: 40 cents/can

Walgreens: 50 cents/can (Walgreens has stores in Oak Lawn, Oak Cliff and throughout the city and has a 100 percent rating.)

This article appeared in the Dallas Voice print edition August 27, 2010

—  Kevin Thomas

Appeals court grants stay of Prop 8 ruling

LISA KEEN  |  Keen News Service

A three-judge panel of the 9th Circuit U.S. Court of Appeals issued an order Monday granting Yes on 8’s request for a stay of Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional. The appeals court panel also ordered, without being asked, that Yes on 8’s appeal of Walker’s ruling in Perry v. Schwarzenegger be addressed by the court on an expedited basis.

The panel said it would hear arguments on appeal during the week of Dec. 6, as well as arguments concerning whether Yes on 8 has legal standing to press the appeal.

The two-page order is a disappointment to many same-sex couples in California who were hoping that they would be able to obtain marriage licenses as soon as Judge Walker’s stay expired — at 5 p.m. Pacific time on Wednesday.

“We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule,” said Ted Olson, one of the lead attorneys for plaintiffs challenging Proposition 8.

Olson, one of the most prominent conservative attorneys in the country, launched the high-profile challenge of California’s voter-approved constitutional ban on same-sex marriage with liberal attorney icon David Boies. Walker, chief judge of the U.S. District Court for Northern California (San Francisco), heard three weeks of testimony by the plaintiffs and Proposition 8 supporters in January.

In a dramatic 136-page ruling on Aug. 4, Walker declared the same-sex marriage ban in the state constitution violates the U.S. Constitution’s guarantees of equal protection and due process. Walker agreed to stay — or delay enforcement — of his decision until Aug. 18, giving the 9th Circuit time to decide whether to grant a more extended appeal.

Evan Wolfson, who was a lead attorney on the first same-sex marriage case — in Hawaii in 1996 — called the 9th Circuit panel’s decision to continue Walker’s stay “disappointing.”

“But there are many twists in the road to justice,” said Wolfson, “and we are encouraged by the court’s setting a fast pace for the appeal, revealing that the judges understand how important a quick end to the exclusion from marriage is to gay couples, their loved ones, and all Americans who believe in equality under the law.”

The 9th Circuit panel includes two Clinton appointees — Judges Sidney Thomas and Michael Hawkins — and one Reagan appointee, Edward Leavey.

The panel set Sept. 17 as the date Yes on 8’s initial argument brief is due.

The response brief from the Ted Olson-David Boies legal team challenging Proposition 8 is due Oct. 18. And Yes on 8 may reply to plaintiffs’ brief by Nov. 1.

Monday’s order means the same-sex marriage ban will stay intact at least until December, when the 9th Circuit will hear arguments on both the issue of Yes on 8’s standing to appeal and, perhaps, on the merits of Walker’s decision.

Meanwhile, on the East Coast, where U.S. District Court Judge Joseph Tauro ruled — in two separate cases — July 9 that the ban on federal benefits to same-sex couples is unconstitutional, the clock is still ticking down the 60 days the U.S. Department of Justice has to appeal the decisions to the 1st Circuit U.S. Court of Appeals.

© 2010 by Keen News Service. All rights reserved.

—  John Wright

Why haven’t these anti-gay Texas leaders said anything about Wednesday’s Prop 8 ruling?

Wednesday’s ruling in the Prop 8 case represents a potential threat to Gov. Rick Perry’s baby, 2005′s Prop 2. So why hasn’t he said anything to defend it?

Perry v. Schwarzenegger could eventually result in Texas’ same-sex marriage bans being struck down by the U.S. Supreme Court. So you’d expect politicians here to be lining up to sound off about Wednesday’s watershed ruling from U.S. District Judge Vaughn Walker that declared California’s Prop 8 unconstitutional. Or not.

So far, we’ve seen only two statements from Texas politicians — both in support of the ruling. Linda Chavez-Thompson, the Democratic nominee for lieutenant governor, posted a message on Twitter on Wednesday afternoon.

“So glad to hear Prop 8 was overturned today,” Chavez-Thompson wrote. “It was discrimination at its worst. I will keep fighting for equality for all Texans.”

And Democratic State Rep. Garnet Coleman of Houston said this via-email:

“I’ve always supported marriage equality for all Americans and believe that the U.S. Constitution supports it as well. When Texas passed its constitutional ban on same-sex marriage and civil unions in 2005, I filed a constitutional amendment to let voters repeal the discriminatory amendment. I’m glad to see that our country continues to move forward. Every year, the public’s opinion on marriage equality is more supportive. The law should prohibit discrimination, not sanction it.”

Republican Gov. Rick Perry, who championed Texas’ marriage amendment, hasn’t said a word about the Prop 8 ruling other than perhaps to his wife, though he did post a statement on his website Thursday ranting about a spending bill in Congress (since when did Washington become more of a threat than the homosexuals?).

Likewise, we haven’t heard anything from Republican Attorney General Greg Abbott, who’s fighting to protect Texas from gay divorce; or Republican Ag Commish Todd Staples, who co-authored Texas’ marriage amendment and filed a brief opposing gay divorce; or Republican Lt. Gov. David Dewhurst, who’s apparently more concerned about drama classes at Tarleton State University.

In fairness, we also haven’t seen statements from the likes of openly gay Houston Mayor Annise Parker, Democratic gubernatorial nominee Bill White or any of the other statewide challengers.

In the end, it appears that with a key election a few months away, most would rather simply avoid this issue altogether, which is rather telling if you ask us.

Anyhow, now that we’ve had a chance to sift through our Inboxes, we’ve posted some of the other local reactions we’ve received below.

Cece Cox, executive director, Resource Center Dallas:

“Judge Vaughn Walker’s ruling in the Perry vs. Schwarzenegger case — striking down California’s Proposition 8 as a violation of both the due process and equal protection clauses of the Fourteenth Amendment — will be remembered for its pivotal role in our march towards equality.

“In plain and direct language, Judge Walker said that “plaintiffs do not seek recognition of a new right…many of the purported interests identified by proponents [of Proposition 8] are nothing more than a fear or unarticulated dislike of same-sex couples…moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.

“But, it’s important to remember that Judge Walker’s ruling is not the last word in this fight. Forty-five states, including Texas, deny marriage to our community. The case now likely moves to the Ninth Circuit Court of Appeals, and may end up at the U.S. Supreme Court.

“Much work needs to be done. Until our relationships and families are legally recognized in all states, we are second-class citizens. Continue to have conversations with your families, friends, and co-workers about why marriage equality is important. The tide of public opinion is gradually changing in our favor, and what seemed a dream a generation ago is one major step closer to fruition.”

The Rev. Jo Hudson, senior pastor, Cathedral of Hope:

“Today [Wednesday], Chief U.S. District Judge Vaughn Walker declared the California state law that defines marriage as a union of one man and one woman unconstitutional. I applaud this ruling and believe that Judge Walker has issued a just and fair ruling that pleases God. The journey to full marriage equality for all Americans is still before us. But I have faith that the God who created each of us and called it good is with us in this journey and will see it through. As the world’s largest predominantly lesbian, gay, bisexual and transgender congregation, we stand with the 18,000 same-sex couples who have already been married in California and with the hundreds that have been married here at the Cathedral of Hope in our 40 years of ministry. We also stand with every gay, lesbian, bisexual and transgender person who has courageously made covenant with someone they love despite the laws in our nation. This is a day of celebration and joy and we have seen the realm of God come closer to the earth and for that I give God thanks.”

Equality Texas Executive Director Dennis Coleman:

“As we stand in solidarity with Californians, we must remember that our work is far from over. The laws in Texas are not similar to California. Existing law here allows for systematic discrimination against lesbian, gay, bisexual and transgender Texans every single day. There is much work to be done legislatively to change the laws in Texas. And in order to change the laws, we must elect public officials who will support equal treatment under the law for every Texan.”

—  John Wright