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

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

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

Radnofsky slams Abbott over gay divorce

Barbara Ann Radnofsky
Barbara Ann Radnofsky

In my story for today’s Voice about the gay divorce case out of Austin, I mentioned that Democratic AG candidate Barbara Ann Radnofsky has said she believes our constitutional amendment banning same-sex marriage could actually invalidate ALL marriages in Texas, due to the way it’s worded. Radnofsky blames incumbent Republican Greg Abbott for not catching the error.

Now, Radnofsky has penned a piece for The HuffPo in which she explains why she believes Abbott’s arguments against same-sex DIVORCE are based on a misinterpretation of state law. Radnofsky holds that while the constitutional amendment applies to marriage, divorce is governed by the Family Code. Here’s a snippet:

The Texas AG is mis-using his office for a partisan, political wedge-issue gain. And, he is mis-stating the law of Texas.

1. Divorce is not the same issue as gay marriage, which is governed by Texas statute, regardless of the Constitutional issues concerning non-recognition of gay marriage. Gay people can be married in certain states. Texas divorce law is controlled by the Texas Family Code Section 1.103.

“The law of this state applies to persons married elsewhere who are domiciled in this state.” Texas Family Code Section 1.103. So, the law of Texas clearly applies Texas law to “persons married elsewhere.” Gay people are persons. Texas law would apply to any Texas domiciliaries seeking a divorce. The language is clear. This Texas law doesn’t apply to “marriages;” rather it applies to “persons.”

—  John Wright

Austin case could put gay divorce on a collision course with the Texas Supreme Court

As you may have heard, Texas Attorney General Greg Abbott has again intervened in a same-sex divorce case, this time in Austin. Angelique Naylor, 39, and Sabina Daly, 41, were married in Massachusetts in 2004. The couple adopted a child together but have been been separated for more than a year. After they reached an agreement about dividing property and sharing custody of their 4-year-old boy, a Travis County judge granted the couple a divorce last week. Now, though, Abbott is challenging the arrangement, arguing that because Texas doesn’t recognize same-sex marriages, it cannot dissolve one. If all this sounds familiar, it’s because a similar scenario played out last year in Dallas, when Judge Tena Callahan granted a divorce to a same-sex couple. Callahan’s ruling has been appealed by Abbott and is now before the 5th District Court of Appeals. Austin is in the 3rd District Court of Appeals, and it seems that if the two appellate courts reach different conclusions, it would greatly increase the chances of the Texas Supreme Court taking up the question. Which could be a good thing or a bad thing.

—  John Wright

'The Daily Show' on Dallas' gay divorce case

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“Do same-sex couples really just want the right to marry that’s afforded to all heterosexual couples, or do they have a more sinister agenda in mind?” Jon Stewart asks at the start of last night’s segment on Texas’ first same-sex divorce case. The segment ends with a straight married couple making out with another woman, and correspondent Jason Jones trying to get in on it. “This is marriage to me,” Jones says. “This is the sanctity of marriage to me. We can’t let gays have all this. No way. They haven’t earned it.” There’s plenty of good stuff in between, including interviews with Dallas attorney Peter Schulte and his client, “J.B.,” as well as East Texas pastor Rick Scarborough, who’s asked whether he’s concerned that “gays are trying to shove their long, thick agenda down your throat repeatedly.” Ultimately Jones concludes that if gays are allowed to divorce, nothing will stop them from the grand abuses of marriage that heterosexuals enjoy, such as furtive gay airport sex. He also says God intended man and woman to be stuck in a loveless union, not gays. Check it out.

—  John Wright