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

Motion for rehearing filed in Texas gay divorce case

Attorneys for plaintiff ask that full 5th District appeals court rehear case after 3-judge panel overturned trial court ruling granting divorce

John Wright  |  Online Editor wright@dallasvoice.com

Attorneys for a gay Dallas man who’s seeking a divorce from his husband filed a motion this week 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 Aug. 31 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. They filed their motion seeking the rehearing on Wednesday, Sept. 15.

“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 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.

Depending on the outcome, Scheske said he’s unsure whether they’ll 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 2009, 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 panel ruled in Abbott’s favor.

For a full copy of the motion seeking the rehearing, go to http://tinyurl.com/3x6u4mt.

This article appeared in the Dallas Voice print edition September 17, 2010.

—  Michael Stephens

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

LGBT advocates blast divorce case ruling

Lambda Legal attorney calls 5th District’s decision ‘worst of opinions,’ warns further appeals could set damaging precedent for marriage

Read the full opinion written by Justice Kerry P. FitzGerald

John Wright  |  Online Editor
wright@dallasvoice.com

Ken Upton
Ken Upton

Texas is justified in prohibiting same-sex marriage — and divorce — because gay couples can’t procreate and because children are better off raised by heterosexual parents, according to a ruling handed down by a state appeals court in Dallas this week.

But these prohibitions don’t unfairly target same-sex couples because Texas also prohibits bigamous and polygamous heterosexual marriage, and because gay couples do enjoy some state protections, such as the ability to seek protective orders from domestic violence, the court said.

Allowing same-sex couples to divorce in Texas would redefine the fundamental institution of marriage, according to the court’s opinion. And if same-sex couples want more legal rights, they should petition the Texas Legislature, not the judiciary.

Dallas’ 5th District Court of Appeals ruled Tuesday, Aug. 31 that a gay couple legally married in Massachusetts cannot obtain a divorce in Texas. The ruling overturned a district judge’s decision last year that declared the state’s marriage bans unconstitutional. Democratic District Judge Tena Callahan’s October 2009 decision allowing the gay couple to seek a divorce was appealed by Republican Attorney General Greg Abbott.

LGBT advocates slammed Tuesday’s long-awaited, 38-page ruling in the case, which came from an all-Republican, three-judge panel of the appeals court.

“It was the worst of opinions,” said Ken Upton, a Dallas-based senior staff attorney at Lambda Legal, the national LGBT civil rights group. “It reinforced all of the old arguments we thought we were moving away from.

“These are stupid arguments with no real basis,” Upton added. “They’re made up just to oppress us. It [the opinion] is an example for people who thought we’d made progress everywhere — welcome to Texas.”

Upton, who isn’t involved in the case, said the ruling will have a limited legal impact because, for now at least, it’s binding only in Texas’ 5th District. But he called the ruling psychologically damaging to the LGBT community and said it steals momentum from recent court victories, including a federal judge’s decision last month declaring California’s Proposition 8 unconstitutional.

Equality Texas, the statewide gay-rights group, issued a statement calling the appeals court’s ruling in the gay divorce case “homophobic, outdated and uninformed.”

“The Fifth District Court of appeals has taken the most extreme, the most conservative view possible on each issue before it,” Equality Texas said. “It’s not as if they wanted to just overturn the trial court’s decision, they wanted to smash it into the ground and discourage anyone from ever filing a pro-LGBT suit ever again.

“The ruling harkens back to a view of the world from generations past — a world where LGBT people were content to live in closets, and were afraid to demand to be treated with dignity and respect. A dignity and respect that this court goes out of its way to completely deny,” Equality Texas said.

The extreme nature of the panel’s ruling “lowered the bar” for another court to overturn it, according to Equality Texas. But Upton, long a critic of the gay divorce case, said he hopes the decision isn’t appealed, because the Texas Supreme Court could inflict more damage by laying down a broader precedent.

James Scheske, left, and Pete Schulte
ON APPEAL | James Scheske, left, and Pete Schulte, attorneys for the plaintiff in the Texas gay divorce case, respond to questions during a press conference after oral arguments in the same-sex divorce case were heard earlier this year. Scheske said this week that whether they appeal the case to the Texas Supreme Court depends on what is best for their client. (David Taffet/Dallas Voice)

“You have to pick your courts,” Upton said. “You have to pick the place where you think you’re going to have a fair chance of convincing someone. I just don’t think that was the Dallas court of appeals, and I certainly don’t think it’s the Texas Supreme Court.

“I guess we could go file one in Mississippi or Alabama if we wanted some more losses that say bad things about gay parents,” Upton added, “but we don’t want to reinforce that message when the momentum is on the side of equality.”

Attorneys for the Dallas man seeking a divorce from his husband, identified in court documents as J.B., said this week that no final decision had been made about whether to appeal.

“I expect an appeal, but that’s ultimately our client’s decision,” said James Scheske of Akin Gump Strauss Hauer & Feld, the Austin law firm representing J.B.

J.B.’s attorneys have 45 days, or until Oct. 15, to appeal the decision, but Scheske said he expects to know within two or three weeks.

In response to concerns about the potential impact of a negative ruling from the Texas Supreme Court, Scheske said his job is to represent his client.

“I have a client who has a valid marriage that needs to end,” Scheske said.“The people who are at the advocacy groups, they’re all very well-intentioned, but they need to think about what my client’s position is, and what would they propose he do?”

J.B. married his husband, H.B., in Massachusetts in 2006 before moving to Texas and filing for divorce in January 2009. Massachusetts, where same-sex marriage has been legal since 2004, has a residency requirement for divorce.

“My duties go to my client, not to what some advocacy group thinks is the best thing to do for some movement,” Scheske said. “I don’t represent a movement; I represent an individual.”

Peter Schulte, the gay Dallas attorney who serves as co-counsel for J.B., said his client was unavailable for comment this week.

Scheske called the appeals court’s ruling “disappointing.”

“This opinion singles out one group of citizens, same-sex couples, and denies them the same rights that everybody else has,” he said.

Scheske also represents an Austin woman who’s seeking a divorce from her wife. After the Travis County district judge granted a divorce to the lesbian couple earlier this year, Attorney General Abbott appealed.

Jerry Strickland, a spokesman for Abbott, praised the Dallas ruling this week.

“Because the Constitution and laws of the State of Texas define marriage as the union of one man and one woman, the court correctly ruled that Texas courts do not have authority to grant a same-sex divorce,” Strickland said. “Further, the court rejected the parties’ constitutional challenge and instead ruled that Texas’ definition of marriage is entirely consistent with the U.S. Constitution.”

The Attorney General’s Office was assisted in the case by the right-wing, Plano-based Liberty Institute.

“The court’s ruling strikes down an activist judge’s attempt to take the law into her own hands,” Liberty Institute President Kelly Shackelford told The Fort Worth Star-Telegram.

The decision came from Justice David L. Bridges, R-Fate, who was elected to the court in 1996; Fitzgerald, R-Dallas, who was appointed by Gov. George W. Bush in 1999; and Robert M. Fillmore, who was appointed by Gov. Rick Perry in 2009.

This article appeared in the Dallas Voice print edition September 3, 2010.

—  Michael Stephens

Appeals court says no to gay divorce

A state appeals court in Dallas has ruled that two gay men who were married in Massachusetts cannot obtain a divorce in Texas.

The ruling came from the 5th District Court of Appeals on Tuesday in the case, In the Matter of the Marriage of J.B. and H.B.

J.B. and H.B. married in Massachusetts in 2006 and filed for a divorce in Texas in January 2009 after moving here. Massachusetts, which has allowed same-sex marriage since 2004, has a residency requirement for divorce.

In October of last year, District Judge Tena Callahan ruled that J.B. and H.B. could obtain a divorce in Texas, saying that the state’s constitutional amendment banning same-sex marriage is unconstitutional.

Callahan’s decision was immediately appealed by Republican Attorney General Greg Abbott, who argued that same-sex couples cannot divorce in Texas because the state doesn’t recognize same-sex marriage. An all-Republican, three-judge panel of the appeals court heard oral arguments in the case in April.

“We hold that Texas district courts do not have the subject-matter jurisdiction to hear a same-sex divorce case,” the panel said in Tuesday’s ruling. “Texas’s laws compelling this result do not violate the Equal Protection Clause of the Fourteenth Amendment.”

Pete Schulte, a gay Dallas attorney who serves as co-counsel for J.B. in the case, issued a statement Tuesday afternoon.

“We respectfully disagree with the justices’ opinion,” Schulte said. “However, we respect the process and are evaluating our options moving forward.”

Jerry Strickland, a spokesman for the AG’s office, said in a statement: “Today’s Court of Appeals decision overruled the District Court’s improper ruling, confirmed the constitutionality of Texas’ traditional definition of marriage and correctly found that Texas courts lack the legal authority to grant divorces to same-sex couples. Because the Constitution and laws of the State of Texas define marriage as the union of one man and one woman, the Court correctly ruled that Texas courts do not have authority to grant a same-sex divorce. Further, the Court rejected the parties constitutional challenge and instead ruled that Texas’ definition of marriage is entirely consistent with the U.S. Constitution.”

Many expect case the case will be appealed to the Texas Supreme Court.

To view the full ruling, click on this link: Gay.Divorce

—  John Wright

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

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?

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