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

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

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