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.