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

Anti-gay measures filed in Texas House

Dennis Coleman

As deadline looms, Chisum files bill to give AG more time to intervene in same-sex divorce case; Workman files resolution urging Obama to defend DOMA

DAVID TAFFET  |  Staff Writer
taffet@dallasvoice.com

Just before the Texas Legislature’s deadline for filing new bills passed last week, one anti-gay measure and one hostile resolution were filed in the House of Representatives. It was the first time in six years that anti-gay measures have been introduced.

Rep. Paul Workman, a freshman Republican who represents the southwest corner of Travis County, introduced a resolution to urge U.S. President Barack Obama to defend the Defense of Marriage Act. In February, the president directed Attorney General Eric Holder to stop defending DOMA in court.

So far the resolution, known as HCR 110, has no Senate counterpart bill.

Equality Texas Executive Director Dennis Coleman said a resolution doesn’t need a committee hearing before going to the floor. The resolution was added to the LGBT lobby group’s tracking list, but Coleman did not express concern.

“So far, we don’t see it as having any traction,” he said.

Rep. Warren Chisum, whose district covers part of the Panhandle and is known as one of the most conservative members of the House, has filed a bill to give the Texas attorney general more time to intervene in same-sex divorce cases.

The move comes after Texas AG Greg Abbott tried to intervene in the divorce of a lesbian couple in Austin but was declared ineligible by an appeals court because he had missed the deadline.

This bill would give that office up to 90 days after a divorce is settled to intervene.

Coleman laughed and said, “It was introduced because [the attorney general] missed the window. We want to give him more time so he doesn’t miss the window again.”

Coleman said that it was interesting that a legislature that was elected to get government out of people’s lives was considering bills that interfered more when it came to the lives of gays and lesbians.

Known as HB 2638, the bill has no co-sponsors and has not been referred to committee yet. A Senate counterpart was not been filed.

Now that the filing period for new bills has ended, Coleman said his organization’s main concern is amendments that could weaken pending legislation or add anti-LGBT measures to other laws.

Anti-bullying bills

Several bills addressing bullying have been introduced in both the Senate and House of Representatives. But not all those bills have gained ringing endorsements from LGBT activists, while the two that had advocates most hopeful have been stripped of language enumerating protected categories.

Sen. Wendy Davis and Rep. Mark Strama authored identical bills that have been amended and are now known as CS (Committee Substitute) SB 242 and CS HB 224. A House committee has already heard the bill. Coleman said that most of the testimony supported the bill and only two groups spoke in opposition.

Coleman said that as a result of the recent LGBT Lobby Day, Rep. Alma Allen of Houston has signed on as a new co-sponsor. He has spoken to others in both the House and Senate about adding their names.

Rep. Garnet Coleman of Houston introduced another anti-bullying bill in the House known as Asher’s Law, in memory of Asher Brown, a Houston 13-year-old who committed suicide last September.

Asher’s Law would mandate creation of suicide prevention programs for junior, middle and high schools. It requires training for counselors, teachers, nurses, administrators, social workers, other staff and school district law enforcement to recognize bullying and know what to do to stop it. A report would be submitted to the legislature by Jan. 13, 2013.

The bill also defines cyberbullying in state law for the first time.

That bill was placed in the public health committee. Dennis Coleman liked that the legislature was treating suicide as a public health issue and thought the bill had a good chance to move to the House floor from committee.

He said legislators favoring anti-bully laws have told him that they need to continue to hear from constituents, especially from teachers and principals.

This article appeared in the Dallas Voice print edition March 18, 2011.

—  John Wright

Wyo. lawmakers say gay divorce case highlights need to define marriage

BEN NEARY  |  Associated Press

CHEYENNE, Wyo. — Some top Wyoming lawmakers said Friday, Jan. 14 that a same-sex divorce case pending in the state Supreme Court underscores the need to clarify what constitutes legal marriage in the state.

District Judge Keith Kautz of Niobrara County in November dismissed a case in which two women who were married in Canada in 2008 were seeking a divorce in Wyoming. Kautz said state law didn’t give him jurisdiction over ending the marriage. One of the women appealed.

Senate President Jim Anderson, R-Glenrock, and House Speaker Ed Buchanan, R-Torrington, both said in interviews Friday that the Niobrara County case shows that the Legislature needs to clarify state law. Attempts to reach lawyers representing the divorcing couple were unsuccessful.

One provision of Wyoming law says marriage can exist only between one man and one woman. But another provision says the state will recognize valid marriages performed elsewhere.

Currently, performing a same-sex marriage is legal in only a handful of states, mostly in the Northeast.

A proposal pending in the Wyoming Senate would let voters decide whether to amend the state constitution to specify that the state would recognize only marriages between a man and a woman. The Senate on Friday sent the measure, Senate Joint Resolution 5, to the Judiciary Committee.

Rep. Cathy Connolly, D-Laramie, a lesbian, has pushed for increased rights for gays and lesbians in the state. She introduced a competing bill Friday, House Bill 143, that would recognize same-sex marriages.

Another House bill would ban same-sex marriages and specify that Wyoming courts wouldn’t have jurisdiction over same-sex marriages.

The House last year voted down a bill that would have allowed voters to decide whether to amend the state constitution to deny recognition of same-sex marriages.

“So often, what we hear from the media and others is that this is a waste of time, and this is not necessary,” Anderson said of addressing the same-sex marriage issue. “I think it deserves a certain amount of time because I think the people of Wyoming want this issue debated. And for the most part, I think the people of Wyoming want an opportunity to vote on that issue.”

Buchanan said the existing state statutes are in conflict.

“Too bad this wasn’t done a year ago,” Buchanan said, adding that would have given the Supreme Court clear direction on how to handle the divorce case.

Buchanan said he believes some state lawmakers want to forbid same-sex marriages in Wyoming because they disagree with the practice.

“I think folks want to protect the traditional notion of what marriage is, and that is a relationship between a man and a woman,” Buchanan said. “But also, they just want this issue to be decided one way or another. So I think it’s just kind of twofold.”

Sen. Curt Meier, R-La Grange, is the main sponsor of the joint resolution that would put the question of whether to deny recognition of same-sex marriages performed elsewhere before Wyoming voters. He said Friday that the pending same-sex divorce case isn’t driving his bill.

“I’m doing this because over the last several years there have been several polls, and the voters of the state of Wyoming have expressed a sincere interest that that’s an issue that they want to vote on, and this will give them an opportunity to do that,” Meier said.

—  John Wright

New Mexico may recognize same-sex marriage

New Mexico Attorney General Gary King

New Mexico Attorney General Gary King says same-sex marriages performed elsewhere may be valid in his state.

“A comprehensive legal analysis by my office concludes that valid same-sex marriages in other states would likely be valid in New Mexico,” King said.

According to the Santa Fe New Mexican, the opinion hasn’t been tested in court. However, an attorney general’s opinion carries quite a bit of weight.

New Mexico’s new governor, Susana Martinez, opposes same-sex marriage. Her predecessor, Bill Richardson, was unsuccessful getting a marriage-equality bill through the legislature.

Maryland’s attorney general has issued a similar ruling. New York and Rhode Island both recognize same-sex marriages performed in other states.

—  David Taffet

Top 10: As Prop 8, DOMA cases proceeded, Texas made its own marriage news

Marriage
LANDMARK RULING | Marriage equality supporters celebrate outside San Francisco City Hall after Judge Vaughn Walker’s August ruling declaring Prop 8 unconstitutional. (Rick Gerharter)

No. 4:

View all of the Top 10

As the year began, all eyes were on California, where conservative superstar Ted Olson and liberal luminary David Bois joined forces to challenge the state’s voter-approved constitutional amendment banning same-sex marriage. The case is Perry v. Schwarzenegger, but both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown declined to defend Prop 8. As a result, ProtectMarriage.com, the main group behind the initiative, filed to intervene and defend it in court. On Aug. 4, six months after the trial began, Judge Vaughn Walker issued his ruling striking down the ban as unconstitutional, prompting celebrations across the country. The state refused to appeal, but the amendment’s supporters did. In December, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit convened to hear oral arguments in the Prop 8 case. The judges grilled attorneys on both sides, but marriage equality advocates said they were encouraged by the hearing. A ruling is expected next year, but the case likely will end up at the Supreme Court.

Meanwhile, two lawsuits challenging the federal Defense of Marriage Act went to trial in Massachusetts this year, and in both cases, DOMA came out the loser. Those cases are also now on appeal.

In Texas, Attorney General Greg Abbott continued his crusade against same-sex divorce. In a Dallas case, Abbott’s office won a victory in May when a state appeals court overturned a judge’s decision to grant a same-sex divorce. Abbott’s appeal of another divorce in Austin is pending.

Meanwhile, transgender issues and LGBT marriage rights collided in July as Houston trans woman Nikki Araguz found herself going up against her in-laws, following the death of her husband, volunteer firefighter Thomas Araguz. Araguz’s family and former wife claimed his marriage to Nikki was invalid because she was born a biological male, and that all his benefits legally should go to them instead of Nikki. The case is awaiting trial.

And Texas would make big marriage news again in November, when a gay couple from Dallas announced they’d been legally married without leaving the state. Mark Reed-Walkup and Dante Walkup held their wedding ceremony at the W-Dallas hotel, but it was officiated via Skype from Washington, D.C., where same-sex marriage is legal. A few weeks later, D.C. officials declared the marriage invalid. The couple later physically traveled to D.C. and got married again. They’ve also renewed a complaint against The Dallas Morning News for refusing to publish their wedding announcement.

Elsewhere, Illinois became the sixth state to approve civil unions. In Hawaii, the legislature approved a bill allowing same-sex civil unions, but Republican Gov. Linda Lingle vetoed it. Minnesota Gov. Tim Pawlenty vetoed a bill that would have given same-sex partners control over the dispensation of their partners’ remains after death, because he supports “traditional marriage.”

Wisconsin’s Supreme Court upheld that state’s gay marriage ban.

Internationally, Portuguese President Anabel Cavaco Silva signed into law legislation that allows same-sex marriage. Argentina’s legislature approved a bill legalizing gay marriage, and President Cristina Fernández de Kirchner quickly signed it into law.

— Tammye Nash

This article appeared in the Dallas Voice print edition December 31, 2010.

—  Kevin Thomas

Vowels custody case returned to trial court for hearing

Supreme Court refuses to hear appeal; appellate court ruled that non-bio mother has standing to sue

DAVID TAFFET  |  Staff Writer taffet@dallasvoice.com

Kristie Vowels
Kristie Vowels

The Texas Supreme Court has refused to hear an appeal by a lesbian mother seeking to block her former partner from seeing their daughter. The case now returns to District Judge Teena Callahan’s court for trial.

Kristie Vowels and Tracy Scourfield were partners for four years. Together they had a daughter, with Scourfield as the birth mother. After they split up, Vowels saw the child on a regular visitation schedule for about a year, but then Scourfield cut off contact between Vowels and the child.

Vowels sued for visitation rights based on Texas law that allows someone who provided six months of care, control and possession ending within the last 90 days to file for custody.

Callahan originally ruled that Vowels did not meet legal standing to sue. Michelle May O’Neil, Vowels attorney, said Callahan gave no reason for her ruling.
Vowels appealed that ruling. The appeals court initially sided with Scourfield but later reversed itself to side with Vowels.

The Supreme Court returned the case to the appeals court, which then returned the case to district court.

O’Neil explained that non-biological parents in custody and visitation cases have to meet what is called the Troxel standard, named after a U.S. Supreme Court ruling in a child custody case.

“The presumption is that parents act in the best interest of their children,” O’Neil said.

Vowels said her former partner is a good mother. But whether or not Vowels gains custody could revolve on whether she and her attorneys can show any flawed decision-making on the part of her former partner.

“The flaw is that she unilaterally ripped the child from someone the child called mom,” O’Neil said.

O’Neil said that the case is being cited around the state and will affect heterosexual stepparents, grandparents and other caregivers as well.
“It’s legally the same question,” O’Neil said.

Callahan is the same judge who later ruled in a same-sex divorce case last October that the Defense of Marriage Act unconstitutionally denies equal protection to same-sex partners.

O’Neil said she knows the judge will approach the case without some of the prejudices others might have, but the ruling in the divorce case won’t change her approach to the Vowels trial.

Vowels said her commitment to her daughter is unwavering.

Although she has had no access to the child for the last three years, she said her daughter has a college account that she has continued to fund.

“That’s my daughter and I’m going to do what I can to fully support her,” Vowels said.

A hearing is scheduled for September. At that time a trial date could be set and O’Neil said she will ask for a temporary visitation order.

O’Neil said that Vowels and Scourfield had talked about completing adoption papers before they split up. She said that had the adoption been completed, this would have been a very different case.

Once an adoption is completed, there is no question of parental rights. The burden of proof would have been on the biological mother to show some cause to prevent the adoptive parent from seeing the child.

“Headline to parents out there,” O’Neil said, “Get the adoption done.”

This article appeared in the Dallas Voice print edition August 6, 2010.

—  Michael Stephens