Mississippi judge refuses to grant gay couple a divorce

images-1JACKSON, Miss. (AP) — A Mississippi judge on Monday refused to grant a divorce to a lesbian couple who got married in California, saying the marriage wasn’t recognized under state law, according to the woman who filed and her lawyer.

Lauren Beth Czekala-Chatham, who filed for the divorce in September in north Mississippi’s DeSoto County, said in a telephone interview Monday that the judge seemed sympathetic and that she plans to appeal the ruling.

Czekala-Chatham, a 51-year-old credit analyst and mother of two teenage sons from an earlier straight marriage, said she was “a little bit disappointed.”

“I would have liked to have had the divorce, but either way he ruled, it was going to be appealed,” she said.

Democrat Attorney General Jim Hood’s office had argued that Mississippi can’t grant a divorce in a marriage it doesn’t recognize. Hood’s office said in a motion to intervene on Nov. 15 that Mississippi “has no obligation to give effect to California laws that are contrary to Mississippi’s expressly stated public policy.”

—  Steve Ramos

Texas Supreme Court hears gay divorce cases

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The Texas Supreme Court

ANNA WAUGH  |  News Editor

AUSTIN — The Texas Deputy Attorney General for Legal Counsel argued before the Texas Supreme Court on Tuesday that state law requires marriages to be recognized before a divorce can be granted.

The Supreme Court took up the issue of gay marriage, considering whether the law allows same-sex divorce despite it not recognizing same-sex marriage.

The two cases involving two couples married in Massachusetts, Dallas couple H.B. and J.B. and Austin couple Angelique Naylor and Sabrina Daly, were consolidated for arguments.

The Dallas couple are still trying to get a divorce in the state. The case’s main issue deals with whether a trial court has jurisdiction over a same-sex divorce. The lesbian couple was granted a divorce in family court, but Texas Attorney General Greg Abbott appealed the decision.

Arguments for the couples focused on the validity of the marriage in another state, while highlighting that only the parties petitioning for a divorce, and not the state, have a right to contest it.

The state argued that the constitutionality of the state’s ban on same-sex marriage was brought into the cases and judges who ruled in the cases previously. Therefore, the state was justified to intervene and defend state law, which doesn’t recognize the marriages for any purpose.

Jody Scheske, the attorney for the gay couples, argued that despite Texas not recognizing same-sex marriage, gay couples are marrying in other states where same-sex marriages are legal. If those couples later divorce, they must petition their state of residence for a divorce.

—  Dallasvoice

TX Supreme Court to hear gay divorce cases

Angelique Naylor

Angelique Naylor stands near the Texas state capital in Austin in 2010. Naylor was granted a divorce from her and her wife’s Massachusetts marriage that same year, but the Texas Supreme Court will now hear the appeal challenging that the divorce violates the state’s constitutional marriage amendment.

It looks like the Texas Supreme Court will finally decide the fate of same-sex marriage in the Lone State State — at least for divorce purposes.

The high court recently requested additional briefs in the cases after the U.S. Supreme Court same-sex marriage rulings in June to determine what impact those rulings should have on their petitions. Combined oral arguments for the cases were scheduled Friday morning for Nov. 5.

Both cases, involving a Dallas gay couple and an Austin lesbian couple, have been before the high court since 2011. Briefs had been requested before, but the court hadn’t decided whether to take the cases, but legal experts expected them to take after the U.S. Supreme Court’s rulings.

Lesbian couple Angelique Naylor and Sabina Daly were granted a divorce in Austin in 2010. Anti-gay Texas Attorney General Greg Abbott intervened to challenge the divorce, but the appeals court ruled in 2011 that Abbott did not have standing. Abbott then appealed the decision to the Texas Supreme Court.

J.B. filed an uncontested petition for divorce from H.B. in Dallas County court four years ago to dissolve their 2006 Massachusetts marriage. But Abbott intervened to challenge the divorce petition, arguing that Texas’ constitutional amendment banning same-sex marriage also prohibits the state from granting gay divorces.

State District Judge Tena Callahan, a Dallas Democrat, later ruled in 2009 that not only could she hear J.B.’s petition but that the state’s marriage amendment is unconstitutional.

Abbott appealed to an all-Republican panel of the 5th District Court of Appeals reversed Callahan’s decision and ruled in Abbott’s favor in 2010. J.B. then appealed to state’s high court.

—  Dallasvoice

4 years later, divorce-seeking gay Dallas couple J.B. and H.B. remain in ‘limbo’

J.B.

If justice delayed is justice denied, one could argue that the gay Dallas couple known as “J.B.” and “H.B.” have already effectively lost their case.

It was precisely four years ago this month when J.B. filed an uncontested petition for divorce from H.B. in Dallas County court, seeking to amicably dissolve their 2006 Massachusetts marriage.

Republican Texas Attorney General Greg Abbott promptly intervened to challenge J.B.’s divorce petition, arguing that Texas’ constitutional amendment banning same-sex marriage also prohibits the state from granting gay divorces. But State District Judge Tena Callahan, a Dallas Democrat, disagreed. Callahan ruled in September 2009 that not only could she hear J.B.’s petition — but also that the state’s marriage amendment is unconstitutional.

Needless to say, Abbott appealed, and not surprisingly, an all-Republican panel of the 5th District Court of Appeals reversed Callahan’s decision and ruled in Abbott’s favor in August 2010.

In March 2011, J.B. appealed the case to the Texas Supreme Court, and that’s where it’s been sitting ever since, joined by another same-sex divorce case from Austin. The state high court requested briefs in the case but has not scheduled oral arguments.

And now, James J. “Jody” Scheske, the attorney representing both J.B. and the lesbian Austin couple, says it’s possible the Texas Supreme Court will wait until after the U.S. Supreme Court has ruled in two marriage equality cases it has agreed to hear.

“The [Texas Supreme] Court has not decided whether it will hear either of them,” Scheske said in an email Tuesday. “There is no deadline for the Court to decide what it wants to do. The Court may be waiting to determine what the U.S. Supreme Court decides in the marriage-related cases, but that is only a guess. The U.S. Supreme Court will likely issue opinions in those cases at the end of June.”

Asked to comment on his clients’ predicament in the meantime, Scheske added, “Limbo is a good word for it.”

—  John Wright

Proposed divorce law could make D.C. the marriage destination of choice for gay Texans

Mrs. Barry Herridge

The straights have a new poster child for traditional marriage.

Sinead O’Connor ended her marriage to therapist Barry Herridge after 16 days. She said she knew the marriage was doomed just three hours after the ceremony.

But she still made it to 16 days. Maybe she needs to see a therapist. Oh wait … maybe she just needs to blame it on the gays.

But at least she will be able to end her marriage — no matter where she lives.

The Washington D.C. city council will take up a same-sex divorce ordinance in January, according to the Washington Post. The bill has the support of eight out of 13 city council members.

The problem, according to the city’s leaders, is that anyone can marry in D.C., but only residents can file for divorce there.

Texas Attorney General Greg Abbott has done his part to deny marriage to same-sex couples by preventing them from getting divorced. One case in which he intervened involves a Dallas couple that was married in Massachusetts. Currently all 50 states and D.C. have a residency requirement for divorce.

With the attorney general’s intervention, the Dallas couple remains married, three years after beginning the process of divorce.

Should the D.C. law pass, couples married in that city will be able to divorce there, no matter where they live. Abbott will be unable to prevent Texas couples married there from divorcing there.

But O’Connor will be able to get divorced wherever she lives. And her 16-day marriage will be considered “traditional.”

—  David Taffet

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

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

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

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