Attorney says gay Dallas man will take his battle for a divorce to the Texas Supreme Court

‘J.B.’

A court’s decision last year to deny a divorce to a gay Dallas couple is being appealed to the Texas Supreme Court.

Attorney James “Jody” Scheske confirmed Wednesday that his client, J.B., plans to appeal the August decision by the 5th Circuit Court of Appeals, which ruled that gay couples can’t divorce in Texas because the state doesn’t recognize same-sex marriage.

J.B. and his husband, H.B., were married in 2006 in Massachusetts before moving to Dallas. After they filed for a divorce in Dallas County, District Judge Tena Callahan ruled in October 2009 that she had jurisdiction to hear the case, calling Texas’ bans on same-sex marriage unconstitutional.

Texas Attorney General Greg Abbott promptly intervened and appealed to the 5th District court, which overturned Callahan’s decision.

“We respectfullly disagree fundamentally with the Court of Appeals ruling that denies equal acess to divorce,” said Scheske, of Akin Gump Straus Hauer & Feld in Austin. “Thus we’ve decided to request that the Texas Supreme Court review the case.”

Scheske said his petition for review has not yet been filed and he’s requesting an extension of the deadline until February. He said once the petition is filed, the Supreme Court will decide whether to hear the case. Scheske acknowledged that the high court is considered very conservative, but he remains optimistic.

“In my business, you always believe that justice can prevail, and the justices on our Supreme Court, just like every other judge and lawyer, are bound to apply the law equally to everybody,” Scheske said. “I know people are cynical about that, but that’s actually the way our system works.”

Scheske recently scored a victory in another gay divorce case in Austin, where an appeals court ruled that Abbott could not intervene after a district judge granted a divorce to a lesbian couple. However, Scheske said the Austin ruling was based on procedural grounds and has no impact on the Dallas case.

—  John Wright

Motion for rehearing filed in Texas gay divorce case

Attorneys for plaintiff ask that full 5th District appeals court rehear case after 3-judge panel overturned trial court ruling granting divorce

John Wright  |  Online Editor wright@dallasvoice.com

Attorneys for a gay Dallas man who’s seeking a divorce from his husband filed a motion this week requesting a re-hearing of the case by the full 5th District Court of Appeals.

An all-Republican, three-judge panel of the Dallas appeals court ruled Aug. 31 that the man, identified in court documents as J.B., cannot obtain a divorce in Texas because the state doesn’t recognize same-sex marriage.

J.B. and his attorneys had the option of dropping the matter, appealing the decision to the Texas Supreme Court, or requesting a re-hearing by the 13-justice 5th District Court en banc. They filed their motion seeking the rehearing on Wednesday, Sept. 15.

“We believe adequate grounds exist for the entire court of appeals to reconsider the panel’s opinion, and we hope the entire Dallas court of appeals will do that,” said James J. “Jody” Scheske of Akin Gump Strauss Hauer & Feld, the Austin firm representing J.B.

Scheske said for the request to be granted, a majority of the 13 justices would have to agree to rehear the case.

Depending on the outcome, Scheske said he’s unsure whether they’ll appeal the decision to the Texas Supreme Court.

“We’re taking it one step at a time,” Scheske said. “We’re hopeful the entire court of appeals will issue an opinion we can live with, in which case further appeal won’t be necessary.”

J.B. and his partner, H.B., were married in Massachusetts in 2006. After they moved to Dallas, J.B. filed for a divorce in 2008.

In October 2009, Democratic District Judge Tena Callahan ruled she had jurisdiction to hear J.B.’s divorce petition, saying Texas’ bans on same-sex marriage are unconstitutional.
Republican Attorney General Greg Abbott appealed Callahan’s decision, and the appeals court panel ruled in Abbott’s favor.

For a full copy of the motion seeking the rehearing, go to http://tinyurl.com/3x6u4mt.

This article appeared in the Dallas Voice print edition September 17, 2010.

—  Michael Stephens

BREAKING: Re-hearing sought in gay divorce

Attorneys for a gay Dallas man who’s seeking a divorce from his husband have filed a motion requesting a re-hearing of the case by the full 5th District Court of Appeals.

An all-Republican, three-judge panel of the Dallas appeals court ruled in August that the man, identified in court documents as J.B., cannot obtain a divorce in Texas because the state doesn’t recognize same-sex marriage.

J.B. and his attorneys had the option of dropping the matter, appealing the decision to the Texas Supreme Court, or requesting a re-hearing by the 13-justice 5th District Court en banc.

“We believe adequate grounds exist for the entire Court of Appeals to reconsider the panel’s opinion, and we hope the entire Dallas court of appeals will do that,” said attorney James J. “Jody” Scheske of Akin Gump Strauss Hauer & Feld, the Austin firm representing J.B.

Scheske said for the request to be granted, a majority of the 13 justices would have to agree to rehear the case. There is no timeframe for the court to rule on the request, he said. Depending on the outcome, Scheske said he’s unsure whether his client will appeal the decision to the Texas Supreme Court.

“We’re taking it one step at a time,” Scheske said. “We’re hopeful the entire court of appeals will issue an opinion we can live with, in which case further appeal won’t be necessary.”

J.B. and his partner, H.B., were married in Massachusetts in 2006. After they moved to Dallas, J.B. filed for a divorce in 2008.

In October of last year, Democratic District Judge Tena Callahan ruled she had jurisdiction to hear J.B.’s divorce petition, saying Texas’ bans on same-sex marriage are unconstitutional.

Republican Attorney General Greg Abbott appealed Callahan’s decision, and the appeals court ruled on Aug. 31 in Abbott’s favor.

To read the full text of the motion seeking a re-hearing, go here.

—  John Wright

Equality Texas calls gay divorce ruling ‘uninformed, outdated and homophobic’

Instant Tea is no attorney, but we can read. And having now thoroughly perused a Dallas appeals court’s gay divorce ruling from Tuesday, we’d say it doesn’t take a law degree to tell you that it’s bad — like, real bad.

The gay divorce ruling reads like an anti-thesis to U.S. District Judge Vaughn Walker’s decision last month declaring Prop 8 unconstitutional. Thankfully, we can take comfort in knowing that the gay divorce ruling will have a limited impact in terms of legal precedent. And maybe, just maybe, it will serve as a helpful reminder about just how far the LGBT community has to go in places like Texas.

Anyhow, we’ll have much more about the ruling in Friday’s Dallas Voice, but for now we thought we’d share this statement sent out Tuesday afternoon by Equality Texas:

The Fifth District Court of appeals has taken the most extreme, the most conservative view possible on each issue before it. It’s not as if they wanted to just overturn the trial court’s decision, they wanted to smash it into ground and discourage anyone from ever filing a pro-LGBT suit ever again.

The ruling harkens back to a view of the world from generations past — a world where LGBT people were content to live in closets, and were afraid to demand to be treated with dignity and respect. A dignity and respect that this court goes out of its way to completely deny.

In going so far to overturn the trial court’s decision, with such an extreme opinion, the appellate court has lowered the bar for any effort to overturn its ruling:

• The Court’s view of marriage is historically inaccurate. Marriage existed in many forms, for many reasons, for many thousands of years.

• Refusal to view sexual orientation as a suspect class singled out for disparate and discriminatory treatment ignores both the entire purpose of DOMA and the anti-marriage amendment, as well as the well-documented history of discrimination, hate crimes, and statutory treatment of LGBT individuals.

• The Court’s view of same-sex relationships is uninformed, outdated and homophobic — predicating its decision upon the ability to have children naturally — thereby ignoring the thousands of Texas households raising kids with same-sex parents, or even single parent households.

• The ruling holds Texas’ laws are “rationally related to the legitimate state interest in fostering the best possible environment for procreation and child-raising.”  Evidently to the exclusion of all others, and without a shred of evidence in the record — particularly since longitudinal studies have demonstrated that same-sex parents are as good as raising kids as straight couples.

—  John Wright

Appeals court says no to gay divorce

A state appeals court in Dallas has ruled that two gay men who were married in Massachusetts cannot obtain a divorce in Texas.

The ruling came from the 5th District Court of Appeals on Tuesday in the case, In the Matter of the Marriage of J.B. and H.B.

J.B. and H.B. married in Massachusetts in 2006 and filed for a divorce in Texas in January 2009 after moving here. Massachusetts, which has allowed same-sex marriage since 2004, has a residency requirement for divorce.

In October of last year, District Judge Tena Callahan ruled that J.B. and H.B. could obtain a divorce in Texas, saying that the state’s constitutional amendment banning same-sex marriage is unconstitutional.

Callahan’s decision was immediately appealed by Republican Attorney General Greg Abbott, who argued that same-sex couples cannot divorce in Texas because the state doesn’t recognize same-sex marriage. An all-Republican, three-judge panel of the appeals court heard oral arguments in the case in April.

“We hold that Texas district courts do not have the subject-matter jurisdiction to hear a same-sex divorce case,” the panel said in Tuesday’s ruling. “Texas’s laws compelling this result do not violate the Equal Protection Clause of the Fourteenth Amendment.”

Pete Schulte, a gay Dallas attorney who serves as co-counsel for J.B. in the case, issued a statement Tuesday afternoon.

“We respectfully disagree with the justices’ opinion,” Schulte said. “However, we respect the process and are evaluating our options moving forward.”

Jerry Strickland, a spokesman for the AG’s office, said in a statement: “Today’s Court of Appeals decision overruled the District Court’s improper ruling, confirmed the constitutionality of Texas’ traditional definition of marriage and correctly found that Texas courts lack the legal authority to grant divorces to same-sex couples. Because the Constitution and laws of the State of Texas define marriage as the union of one man and one woman, the Court correctly ruled that Texas courts do not have authority to grant a same-sex divorce. Further, the Court rejected the parties constitutional challenge and instead ruled that Texas’ definition of marriage is entirely consistent with the U.S. Constitution.”

Many expect case the case will be appealed to the Texas Supreme Court.

To view the full ruling, click on this link: Gay.Divorce

—  John Wright

If Prop 8 is really unconstitutional, you should totally be able to get a gay divorce in Texas

Pete Schulte, left, and James J. Scheske are like a gay divorce dream team.

Attorneys for a gay Dallas couple that’s seeking a divorce are citing the recent Prop 8 ruling out of California — in which a federal judge declared the state’s marriage ban unconstitutional — to bolster their case.

James J. Scheske of Akin Gump Straus Hauer & Feld, one of the attorneys representing the gay couple, filed a letter brief Aug. 18 with Dallas’ 5th District Court of Appeals. The brief cites not only the Prop 8 ruling, but also two July rulings from Massachusetts in which a federal court declared the Defense of Marriage Act unconstitutional.

“Since this case was submitted, there have been significant developments in the body of law relating to the constitutional infirmity of efforts to deprive lawfully-married same-sex couples of the same benefits, responsibilities, and protections afforded all other married couples,” Scheske wrote in the brief. “This court should take heed of these decisions, which vindicate the trial court’s holding in this case that laws depriving lawfully-married same-sex couples of the right to obtain a divorce are unconstitutional.”

Scheske represents J.B. and H.B., who married in Massachusetts and are seeking a divorce in Texas.

Democratic State District Judge Tena Callahan ruled last October that J.B. and H.B. can get divorced in Texas. But Republican Attorney General Greg Abbott appealed Callahan’s decision, arguing that Texas cannot grant the divorce because the state doesn’t recognize same-sex marriage.

A three-member panel of the state appeals court heard oral arguments in the case in April. There is no deadline for the justices to rule.

Click on the link to read the full brief: J.B.’s Letter Brief-r

—  John Wright