Tag Archives: gay divorce

Texas AG Greg Abbott: Judge in Prop 8 case ‘failed to do what a judge is supposed to do’

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A few weeks back we wrote about how anti-gay leaders in Texas were deafeningly silent about U.S. District Judge Vaughn Walker’s landmark decision declaring Proposition 8 unconstitutional. As we said at the time, this case has the potential to void gay marriage bans in all states including Texas that have passed them, so one might expect the folks who pushed through the 2005 state constitutional amendment to chime in. Our post was later picked up by Rachel Maddow. Anyhow, looks like Texas Attorney General Greg Abbott, who’s been fighting gay divorce tooth and nail, has finally said something about Walker’s ruling, in an interview last week with the Texas Tribune (which has seemingly become the only mainstream media outlet in the state that even pretends to care about LGBT issues). Below is a transcript of the full exchange between Abbott and the Tribune’s Evan Smith, taken directly from the first three minutes of the video. Smith asks legitimate questions but fails to follow them up and seems to let Abbott off the hook pretty darn easily. For example, Smith allows Abbott’s assertion that Baker v. Nelson is binding precedent — which is pretty far-fetched at this point — to go unchallenged. Likewise, Abbott fails to respond substantively about Ken Mehlman’s coming out or the issue of transgender marriage. Again, kudos to the Tribune for bringing up these topics, but ultimately that’s not enough — they need to do their homework and be prepared to hold people’s feet to the fire.

Smith: I want to start with a bit of news that broke yesterday afternoon, and that is about Ken Mehlman. Ken Mehlman is the former chair of the Republican National Committee. He was George W. Bush’s campaign manager in ’04, a close aide to George W. Bush over the years politically, who I think as you know announced yesterday that he’s gay, and that he intended to use that public position to campaign for gay marriage? What do you think about that?
Abbott: What do I think about Ken Mehlman?

Smith: What do you think about the Mehlman announcement and what do you think the larger significance of the Mehlman announcement is if there is any for the discourse about gay marriage in this county?
Abbott: Well it adds further discourse into the whole issue, but it doesn’t change the legal dynamics. What one person feels doesn’t change the law, doesn’t change the constitution, doesn’t change pre-existing Supreme Court precedent on the issue.

Smith: So there’s a legal issue that you addressed. Mehlman’s announcement doesn’t change that. But there’s also a political dynamic, surely you would agree, at work here?
Abbott: Well, there is a political dynamic. There’s a political dynamic that’s been in play for decades. But once again, the political dynamic is not going to rewrite the constitution. The constitution says what it says, and just because one person comes out and says, “Listen, I’m gay, I believe in same-sex marriage, doesn’t change the constitution.

Smith: And nor does necessarily the actions of a judge in California, as one did recently, holding the door open to the overturning of the proposition in California That as well is one judge’s decision and does not overall affect the issue?
Abbott: It doesn’t impact the issue. If you want to delve into the details, the reality is that that judge failed to do what a judge is supposed to do. Lower court judges are supposed to follow higher-court precedents. There is a precedent from the United States Supreme Court on this issue, in Baker v. Nelson, that is binding precedent on the lower courts unless and until the Supreme Court changes that opinion, and that binding opinion is one that doesn’t recognize same-sex marriages.

Smith: You had the opportunity recently in a case here in Texas involving a transgender individual to offer an attorney general’s opinion. This is a case where people say it may be kind of a small crack in the door, where gay marriage is actually in certain instances legal in Texas. Your office was asked to offer an opinion, and you declined to. Can you talk about that?
Abbott: First of all, we had three opportunities to weigh in legally in courts about whether or not gay marriage is legal in the state of Texas. The issue you’re talking about is the transgender issue, and that involved an issue where we got an opinion request from the county attorney in El Paso, and we rejected opining on that opinion because of current pending litigation. Now if I tell the county attorney from El Paso that I will not give them an opinion, Evan, I’m not going to give you an opinion either.

—  John Wright

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

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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

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

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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

Dallas court hears gay divorce

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[youtube HJpmziQBLi8]

—  Dallasvoice

As Prop 8 trial wraps up, we're turning our attention back to Dallas' gay divorce case

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Pete Schulte
Pete Schulte

With closing arguments under way in the federal Prop 8 trial today, I thought it might be a good time to check in with Pete Schulte, the attorney in Dallas’ own version of Perry v. Schwarzenegger.

After all, it’s been damn near two months since a state appeals court heard oral arguments in Schulte’s gay divorce case, known as J.B. v. H.B. And those of us who’ve signed up for the opinion notification service from the 5th Circuit Court of Appeals are getting tired of scanning through the e-mails every morning. But Schulte says it could be a while before the court issues its ruling.

“Once the case is submitted to the court, we have no idea when they’re going to rule,” Schulte told me this afternoon.

Continue reading “As Prop 8 trial wraps up, we're turning our attention back to Dallas' gay divorce case” »

—  John Wright

'That's Gay' takes on gay divorce in Texas

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We’re a few days late with this one, but in case you missed it, Bryan Safi and “That’s Gay” took on the topic of same-sex divorce in Texas last week. Safi mentions how Texas Attorney General Greg Abbott is fighting gay divorce for political reasons, and how attorneys for a Dallas couple that’s seeking a divorce are using the state’s marriage ban to bolster their argument. In doing so, are they throwing the marriage equality movement under the bus?

—  John Wright

Are right-wing politicians in Texas starting to realize that gay-baiting no longer works?

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Attorney General Greg Abbott appears to be letting the Liberty Institute's Hiram "Sassy" Sasser, shown during yesterday's press conference, do the AG's dirty work for him.
Attorney General Greg Abbott seems to be letting people like the Liberty Institute’s Hiram “Sassy” Sasser, shown during yesterday’s press conference, do his dirty work for him. (DAVID TAFFET)

During this year’s big national gathering of conservative political activists, called CPAC, a poll found that virtually none considered “stopping gay marriage” to be one of their top priorities.

Meanwhile, three consecutive polls of likely Texas voters have found that a healthy majority — about 60 percent — support some form of relationship recognition for same-sex couples, such as civil unions.

Also recently, lesbian Annise Parker overcame appeared to benefit from vicious anti-gay attacks on her way to becoming mayor of the nation’s fourth-largest city — which happens to be in Texas.

All this seems to raise the question of whether gay-baiting or gay-bashing or whatever you want to call it is still an effective political strategy, even in the reddest of big states. Indeed, there are signs that even politicians who’ve traditionally been virulently anti-gay are calling off the dogs. Take Gov. Rick Perry, for example.

When a Tarleton State University student wanted to stage a gay-themed play for his class project last month, it was Lt. Gov. David Dewhurst — and not Perry — who issued hateful statements slamming the production. While both Perry and Dewhurst are up for re-election this year, most believe the governor’s race is the only statewide contest that a Democrat has a reasonable chance of winning.

Which also helps explain why Agriculture Commissioner Todd Staples doesn’t have any qualms about being an outspoken opponent of gay divorce, even as Perry has remained completely silent about the issue — at least since issuing a statement when the Dallas case was first filed in January 2009.

Where’s Rick? As far as I can tell, he hasn’t said a word about the gays in months. His opponent, Democrat Bill White, was endorsed by the Human Rights Campaign, the nation’s largest gay-rights group, in early March, but I haven’t heard a peep out of Perry about it. Former Eagle Forum President Cathie Adams, who’s now chairwoman of the State Republican Party, has also been strangely silent.

And even Attorney General Greg Abbott, who initiated the challenges to gay divorce, may now be backing away from the issue just a little bit.

Indeed, Abbott appears to be letting the Liberty Institute, which should be called the Oppression Institute, do his dirty work for him. When politicians can gay-bait through a third party, they still get a boost from homophobic voters, but without the backlash from fair-minded people.

Yesterday, not only was Abbott not present, but the attorney arguing the case for his office didn’t even show up for a press conference after the gay divorce hearing. Instead, it was Hiram “Sassy” Sasser from the Liberty Institute at the microphone. Surprisingly, none of the reporters on hand questioned why in the hell the AG’s office wasn’t speaking for itself.

Of course, the canned answer would have been that the AG’s office doesn’t comment on cases that are still pending. But I’ll tell you the real reason: People like Perry and Abbott are starting to worry that gay-baiting will backfire. Four years ago, both Perry and Abbott probably would have been at the press conference themselves. But not anymore, and that’s a good sign. Now we just need some pro-LGBT politicians with enough guts to go on the offensive.

—  John Wright

Dallas appeals court hears oral arguments in Texas AG's challenge of gay divorce

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TV crews gather around two activists from GetEQUAL outside the George Allen Courts Building in downtown Dallas on Wednesday. Inside, the 5th District Court of Appeals heard oral arguments in a same-sex divorce case.
TV crews gather around two activists from GetEQUAL outside the George Allen Courts Building in downtown Dallas on Wednesday. Inside, the 5th court of appeals heard oral arguments in a same-sex divorce case. (Photo and video by DAVID TAFFET)

By John Wright  News Editor

A Texas appeals court heard oral arguments Wednesday but made no ruling in the state attorney general’s challenge of a Dallas judge’s decision to allow a same-sex divorce.

Assistant Solicitor General James Blacklock, who argued the case for the AG’s office, told a three-judge panel of the 5th court of appeals that the gay couple shouldn’t be allowed to divorce in Texas because their marriage isn’t considered valid under state law.

The couple, identified in court documents only as J.B. and H.B., were married in Massachusetts in 2006 before moving to Dallas.

James Scheske, one of J.B.’s attorneys, countered that regardless of Texas law, the couple’s marriage is valid in the state where it was entered. To obtain a divorce in Massachusetts, the couple would have to re-establish residency there for at least six months.

“My client’s very private matter has become a public spectacle,” Scheske told the justices. “He’s not seeking to enter into a same-sex marriage. He’s seeking a divorce from a valid marriage that was entered into in another state.”

Following Wednesday’s arguments, the three justices took the case under review, and there is no timeframe for them to issue a decision.

With about a dozen news reporters looking on, each side was allotted 20 minutes for oral arguments during the hearing on the second floor of the George Allen Courts Building in downtown Dallas. No cameras were allowed in the courtroom, but TV crews waited downstairs where a press conference was held afterward.

The attorney general’s office granted five of its 20 minutes to a representative from the right-wing, Plano-based Liberty Institute.

Hiram Sasser, director of litigation for the Liberty Institute, made arguments on behalf of State Rep. Warren Chisum and Texas Agriculture Commissioner Todd Staples, who filed a friend-of-the-court brief opposing the divorce. Chisum and Staples, both Republicans, were authors of Texas’ 2005 constitutional amendment banning same-sex marriage.

Sasser noted that 76 percent of voters approved the amendment, and he said the issue of same-sex divorce shouldn’t be decided by judges. Under the federal Defense of Marriage Act, signed by President Bill Clinton in 1996, states can choose not to recognize same-sex marriages from elsewhere.

“I think President Clinton said it best when he said we have to honor the decisions of the states,” Sasser said during the press conference, which representatives from the AG’s office didn’t attend. “Instead of the courts, the people who want to overturn the constitutional amendment need to go the ballot box.”

Sasser characterized gay divorce as an attack on same-sex marriage, but Scheske noted that constitutional issues didn’t arise in the case until the AG’s office became involved.

J.B. filed for a divorce in January 2009, and a day later Republican Attorney General Greg Abbott challenged the petition. Judge Tena Callahan, a Democrat, ruled in October of last year that she had jurisdiction to hear the case, saying Texas’ bans on same-sex marriage violate the equal protection clause of the 14th amendment.

At the request of J.B.’s attorneys, Callahan later amended her ruling to say that the case doesn’t implicate Texas’ marriage bans, but instead involves the question of whether same-sex divorces can be granted under the state’s Family Code.

“Granting a divorce to a same-sex couple promotes Texas policy because it ends a same-sex marriage,” Scheske told the appeals court on Wednesday.

“We think it’s axiomatic that granting a divorce means one less same-sex marriage in Texas,” he said later at the press conference. “We’re not challenging the same-sex marriage ban. That’s not what we’re doing, because my client is already in a same-sex marriage. My client just wants a divorce.”

Scheske added that he was pleased that the appeals court had opted to hear oral arguments, a decision that went against the wishes of the AG’s office.

The attorney general’s office argues that “voidance” is the appropriate procedure for dissolving marriages that aren’t considered valid by the state, such as incestuous or bigamous marriages. But J.B.’s attorneys say voidance doesn’t provide the same remedies related to division of property. They also say voidance creates a separate status for gays and lesbians that violates equal protection. And they note that in order to grant a voidance, just as with a divorce,  Texas courts must first recognize the marriage.

J.B. attended Wednesday’s arguments but was quickly whisked away down an escalator after they ended. Scheske said J.B., who’s already appeared on “Good Morning America” and “The Daily Show,” won’t be talking to the media again until after the appeals court issues its ruling.

Experts say regardless of how the panel rules, the case is likely to be appealed to the Texas Supreme Court, and possibly to the U.S. Supreme Court after that.

While some states grant same-sex divorces even though they prohibit same-sex marriage, others do not.

Also attending Wednesday’s hearing was Angelique Naylor, a lesbian who married her ex-wife in Massachusetts and was recently granted a divorce in Austin. Abbott’s office has also filed a notice of its intent to appeal the district judge’s decision in Naylor’s case.

Security was heavy at Wednesday’s hearing, with about a dozen sheriff’s vehicles parked outside the courthouse, and a metal detector set up near the entrance to chambers. Authorities reportedly were anticipating demonstrations by anti-gay or pro-gay groups. As it turned out, only two pro-LGBT demonstrators stood outside the courthouse with signs.

—  John Wright

Gay divorce update: Arguments Wednesday in Dallas case; AG's office to appeal Austin ruling

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Oral arguments are set for Wednesday afternoon in the Texas attorney general’s appeal of a gay divorce in Dallas, and attorney Pete Schulte said he’s expecting a media circus at the George Allen Courts Building. Schulte has stopped short of calling for an LGBT rally outside, but he does say he thinks the community should be prepared to respond in the event of anti-gay protesters. Also, TV cameras won’t be allowed inside the courtroom, so they’ll need something to film (hint, hint). The courthouse is at 600 Commerce St. in Dallas, and the oral arguments begin at 2 p.m. The courtroom is open to the public, but space is limited, so if you want to attend the actual proceedings you may want to arrive early. As if this case wasn’t already politically charged enough, Schulte reports that the 5th District Court of Appeals has granted 5 minutes during oral arguments to one of the two anti-gay state officials who recently filed a brief opposing the divorce, State Rep. Warren Chisum or Agriculture Commissioner Todd Staples. It’s unclear whether it will be Chisum or Staples making the arguments.

In other same-sex divorce news, Attorney General Greg Abbott’s office has also decided to appeal a Travis County judge’s decision last month to grant a divorce to a lesbian couple. The district judge who granted the divorce had asked the AG’s office not to appeal the decision. The judge told the AG’s office that the Dallas case will decide the matter anyway and that continuing to fight the Austin case could have an adverse impact on a 4-year-old boy who was adopted by the couple. But apparently Abbott is less concerned about the welfare of the child than drumming up right-wing votes in November elections.

On Saturday in Austin, I got a chance to meet Angelique Naylor, one of the women who was granted the divorce in Travis County. Naylor, who participated in a panel during Equality Texas’ State of the State Policy Conference, told me that while the divorce case began as a way to legally end the couple’s relationship, it’s evolved into something more.

“Now I’m fired up and I want to do the right thing and make a stand,” Naylor said.

Naylor’s attorney, Jennifer Cochran, also participated in the panel on Saturday.

“He doesn’t like gay people for some reason,” Cochran said of Abbott.

—  John Wright

AG's brief in gay divorce case lacks references to man-horse marriage, man-dinosaur sex

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As I reported in today’s Voice, Dallas’ 5th District Court of Appeals has scheduled oral arguments in a high-profile same-sex divorce case, against Texas Attorney General Greg Abbott’s wishes. I have to admit, when I went down to the courthouse last week to pick up copies of the hundreds of pages of briefs in this case, I was hoping to find that the AG’s office had made references to things like man-horse marriage or man-dinosaur sex. At the very least, it would have made for some great headlines. But what I found instead is that the AG’s office seems to go out of its way to be politically correct and avoid language that LGBT people might find offensive. At one point the AG’s office even states that “although people of good faith may reasonably differ on sensitive issues of public policy—states are well within their constitutional authority to define marriage as the union between one man and one woman …”

Still, given the nature of the case, it was impossible for the AG’s office to completely avoid arguments that might be considered inflammatory or just plain ignorant. Here’s an example from the AG’s brief opposing the gay divorce:

“Throughout centuries of human history and across diverse human civilizations, societies have recognized — and their governments have given legal effect and enforcement to — the institution of marriage as the union of one man and one woman. And the reason is neither complicated nor controversial: the naturally procreative relationship between a man and a woman deserves special societal support and protection — both to encourage procreation (without which society cannot survive), and to increase the likelihood that children will be raised by both of their parents, within the context of stable, long-term relationships — interests that are uniquely served through government recognition and enforcement of the union of one man and one woman. …

“In sum, the legal institution of marriage is about biology, not bigotry, much like the federal pregnancy Discrimination Act of 1978, which protects women, not because the government favors women over men, but because of he basic biological realities about the nature of pregnancy and procreation. (To be sure, the state does not limit the institution of marriage to fertile unions of one man and one woman. But requiring evidence of fertility as a condition of marriage would be inconsistent with longstanding traditions respecting privacy).”

—  John Wright