Anti-gay measures filed in Texas House

Dennis Coleman

As deadline looms, Chisum files bill to give AG more time to intervene in same-sex divorce case; Workman files resolution urging Obama to defend DOMA

DAVID TAFFET  |  Staff Writer
taffet@dallasvoice.com

Just before the Texas Legislature’s deadline for filing new bills passed last week, one anti-gay measure and one hostile resolution were filed in the House of Representatives. It was the first time in six years that anti-gay measures have been introduced.

Rep. Paul Workman, a freshman Republican who represents the southwest corner of Travis County, introduced a resolution to urge U.S. President Barack Obama to defend the Defense of Marriage Act. In February, the president directed Attorney General Eric Holder to stop defending DOMA in court.

So far the resolution, known as HCR 110, has no Senate counterpart bill.

Equality Texas Executive Director Dennis Coleman said a resolution doesn’t need a committee hearing before going to the floor. The resolution was added to the LGBT lobby group’s tracking list, but Coleman did not express concern.

“So far, we don’t see it as having any traction,” he said.

Rep. Warren Chisum, whose district covers part of the Panhandle and is known as one of the most conservative members of the House, has filed a bill to give the Texas attorney general more time to intervene in same-sex divorce cases.

The move comes after Texas AG Greg Abbott tried to intervene in the divorce of a lesbian couple in Austin but was declared ineligible by an appeals court because he had missed the deadline.

This bill would give that office up to 90 days after a divorce is settled to intervene.

Coleman laughed and said, “It was introduced because [the attorney general] missed the window. We want to give him more time so he doesn’t miss the window again.”

Coleman said that it was interesting that a legislature that was elected to get government out of people’s lives was considering bills that interfered more when it came to the lives of gays and lesbians.

Known as HB 2638, the bill has no co-sponsors and has not been referred to committee yet. A Senate counterpart was not been filed.

Now that the filing period for new bills has ended, Coleman said his organization’s main concern is amendments that could weaken pending legislation or add anti-LGBT measures to other laws.

Anti-bullying bills

Several bills addressing bullying have been introduced in both the Senate and House of Representatives. But not all those bills have gained ringing endorsements from LGBT activists, while the two that had advocates most hopeful have been stripped of language enumerating protected categories.

Sen. Wendy Davis and Rep. Mark Strama authored identical bills that have been amended and are now known as CS (Committee Substitute) SB 242 and CS HB 224. A House committee has already heard the bill. Coleman said that most of the testimony supported the bill and only two groups spoke in opposition.

Coleman said that as a result of the recent LGBT Lobby Day, Rep. Alma Allen of Houston has signed on as a new co-sponsor. He has spoken to others in both the House and Senate about adding their names.

Rep. Garnet Coleman of Houston introduced another anti-bullying bill in the House known as Asher’s Law, in memory of Asher Brown, a Houston 13-year-old who committed suicide last September.

Asher’s Law would mandate creation of suicide prevention programs for junior, middle and high schools. It requires training for counselors, teachers, nurses, administrators, social workers, other staff and school district law enforcement to recognize bullying and know what to do to stop it. A report would be submitted to the legislature by Jan. 13, 2013.

The bill also defines cyberbullying in state law for the first time.

That bill was placed in the public health committee. Dennis Coleman liked that the legislature was treating suicide as a public health issue and thought the bill had a good chance to move to the House floor from committee.

He said legislators favoring anti-bully laws have told him that they need to continue to hear from constituents, especially from teachers and principals.

This article appeared in the Dallas Voice print edition March 18, 2011.

—  John Wright

Gay divorce case appealed to TX Supreme Court

‘J.B.’

More than two years after he filed an uncontested petition for divorce, attorneys for the gay Dallas resident known as “J.B.” have appealed his case to the Texas Supreme Court.

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 in January 2009, Democratic District Judge Tena Callahan ruled in October 2009 that she had jurisdiction to hear the case, calling Texas’ bans on same-sex marriage unconstitutional.

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

On Feb. 17, attorneys at Akin Gump Strauss Hauer and Feld, which represents J.B., filed a Petition for Review of the 5th District’s ruling by the Texas Supreme Court.

“This Court should grant review because this case involves questions of great importance to Texas state law, which likely will recur with increasing frequency until this Court provides guidance,” the attorneys wrote in their Petition for Review. “Over 28% of the U.S. population lives in a jurisdiction where same-sex marriage or its equivalent is permitted. Texas is one of the nation’s fastest growing states—attracting thousands upon thousands of migrants each year, including couples from those states that permit same-sex marriage. Thus, there is an increasing likelihood that same-sex couples legally married in another state will move to Texas and eventually seek divorce in Texas. Whether Family Code section 6.204 prevents these same-sex couples who were legally married in another state from obtaining a divorce in Texas, and whether this violates the U.S. Constitution, are questions important to the state’s jurisprudence, and should be, but have not yet been, resolved by this Court.”

To read the full petition for review, go here.

—  John Wright

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

Wyo. lawmakers say gay divorce case highlights need to define marriage

BEN NEARY  |  Associated Press

CHEYENNE, Wyo. — Some top Wyoming lawmakers said Friday, Jan. 14 that a same-sex divorce case pending in the state Supreme Court underscores the need to clarify what constitutes legal marriage in the state.

District Judge Keith Kautz of Niobrara County in November dismissed a case in which two women who were married in Canada in 2008 were seeking a divorce in Wyoming. Kautz said state law didn’t give him jurisdiction over ending the marriage. One of the women appealed.

Senate President Jim Anderson, R-Glenrock, and House Speaker Ed Buchanan, R-Torrington, both said in interviews Friday that the Niobrara County case shows that the Legislature needs to clarify state law. Attempts to reach lawyers representing the divorcing couple were unsuccessful.

One provision of Wyoming law says marriage can exist only between one man and one woman. But another provision says the state will recognize valid marriages performed elsewhere.

Currently, performing a same-sex marriage is legal in only a handful of states, mostly in the Northeast.

A proposal pending in the Wyoming Senate would let voters decide whether to amend the state constitution to specify that the state would recognize only marriages between a man and a woman. The Senate on Friday sent the measure, Senate Joint Resolution 5, to the Judiciary Committee.

Rep. Cathy Connolly, D-Laramie, a lesbian, has pushed for increased rights for gays and lesbians in the state. She introduced a competing bill Friday, House Bill 143, that would recognize same-sex marriages.

Another House bill would ban same-sex marriages and specify that Wyoming courts wouldn’t have jurisdiction over same-sex marriages.

The House last year voted down a bill that would have allowed voters to decide whether to amend the state constitution to deny recognition of same-sex marriages.

“So often, what we hear from the media and others is that this is a waste of time, and this is not necessary,” Anderson said of addressing the same-sex marriage issue. “I think it deserves a certain amount of time because I think the people of Wyoming want this issue debated. And for the most part, I think the people of Wyoming want an opportunity to vote on that issue.”

Buchanan said the existing state statutes are in conflict.

“Too bad this wasn’t done a year ago,” Buchanan said, adding that would have given the Supreme Court clear direction on how to handle the divorce case.

Buchanan said he believes some state lawmakers want to forbid same-sex marriages in Wyoming because they disagree with the practice.

“I think folks want to protect the traditional notion of what marriage is, and that is a relationship between a man and a woman,” Buchanan said. “But also, they just want this issue to be decided one way or another. So I think it’s just kind of twofold.”

Sen. Curt Meier, R-La Grange, is the main sponsor of the joint resolution that would put the question of whether to deny recognition of same-sex marriages performed elsewhere before Wyoming voters. He said Friday that the pending same-sex divorce case isn’t driving his bill.

“I’m doing this because over the last several years there have been several polls, and the voters of the state of Wyoming have expressed a sincere interest that that’s an issue that they want to vote on, and this will give them an opportunity to do that,” Meier said.

—  John Wright

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

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

Vowels custody case returned to trial court for hearing

Supreme Court refuses to hear appeal; appellate court ruled that non-bio mother has standing to sue

DAVID TAFFET  |  Staff Writer taffet@dallasvoice.com

Kristie Vowels
Kristie Vowels

The Texas Supreme Court has refused to hear an appeal by a lesbian mother seeking to block her former partner from seeing their daughter. The case now returns to District Judge Teena Callahan’s court for trial.

Kristie Vowels and Tracy Scourfield were partners for four years. Together they had a daughter, with Scourfield as the birth mother. After they split up, Vowels saw the child on a regular visitation schedule for about a year, but then Scourfield cut off contact between Vowels and the child.

Vowels sued for visitation rights based on Texas law that allows someone who provided six months of care, control and possession ending within the last 90 days to file for custody.

Callahan originally ruled that Vowels did not meet legal standing to sue. Michelle May O’Neil, Vowels attorney, said Callahan gave no reason for her ruling.
Vowels appealed that ruling. The appeals court initially sided with Scourfield but later reversed itself to side with Vowels.

The Supreme Court returned the case to the appeals court, which then returned the case to district court.

O’Neil explained that non-biological parents in custody and visitation cases have to meet what is called the Troxel standard, named after a U.S. Supreme Court ruling in a child custody case.

“The presumption is that parents act in the best interest of their children,” O’Neil said.

Vowels said her former partner is a good mother. But whether or not Vowels gains custody could revolve on whether she and her attorneys can show any flawed decision-making on the part of her former partner.

“The flaw is that she unilaterally ripped the child from someone the child called mom,” O’Neil said.

O’Neil said that the case is being cited around the state and will affect heterosexual stepparents, grandparents and other caregivers as well.
“It’s legally the same question,” O’Neil said.

Callahan is the same judge who later ruled in a same-sex divorce case last October that the Defense of Marriage Act unconstitutionally denies equal protection to same-sex partners.

O’Neil said she knows the judge will approach the case without some of the prejudices others might have, but the ruling in the divorce case won’t change her approach to the Vowels trial.

Vowels said her commitment to her daughter is unwavering.

Although she has had no access to the child for the last three years, she said her daughter has a college account that she has continued to fund.

“That’s my daughter and I’m going to do what I can to fully support her,” Vowels said.

A hearing is scheduled for September. At that time a trial date could be set and O’Neil said she will ask for a temporary visitation order.

O’Neil said that Vowels and Scourfield had talked about completing adoption papers before they split up. She said that had the adoption been completed, this would have been a very different case.

Once an adoption is completed, there is no question of parental rights. The burden of proof would have been on the biological mother to show some cause to prevent the adoptive parent from seeing the child.

“Headline to parents out there,” O’Neil said, “Get the adoption done.”

This article appeared in the Dallas Voice print edition August 6, 2010.

—  Michael Stephens