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

Liberty Institute, on behalf of Chisum and Staples, asks Texas’ high court to take gay divorce cases

Kelly Shackelford

The right-wing, Plano-based Liberty Institute has filed briefs asking the Texas Supreme Court to hear two same-sex divorce cases so justices can resolve allegedly conflicting opinions from state appellate courts in Austin and Dallas.

The Liberty Institute announced today that it filed the briefs on behalf of State Rep. Warren Chisum, R-Pampa, and Republican Agriculture Commissioner Todd Staples, a former state senator from Palestine.

In both cases, district judges ruled to allow same-sex divorces, prompting Republican Attorney General Greg Abbott to intervene. In the Dallas case, the 5th court of appeals overturned Democratic Judge Tena Callahan’s ruling. J.B., the gay Dallas resident who’s seeking a divorce from his Massachusetts marriage to H.B., appealed the decision to the Texas Supreme Court in March.

In the Austin case, State of Texas v. Angelique Naylor and Sabina Daly, the 3rd court of appeals upheld the district judge’s decision, saying Abbott’s attempt to intervene was too late.

“The district judges’ rulings granting same-sex divorces illegitimately overturned the will of more than two million Texans and their elected officials,” Liberty Institute President and CEO Kelly Shackelford said in a press release. “The debate over same-sex marriage and divorce should play out in our democratic institutions and should not be short-circuited by activist judges.”

The Liberty Institute previously filed a brief on behalf of Chisum and Staples in the Dallas case when it was before the appeals court.

Read a copy of the Liberty Institute’s brief in the Dallas case here, and the Austin case here.

Austin-based attorney Jody Scheske of Akin Gump Strauss Hauer & Feld, which is representing both J.B. and Naylor/Daly, declined to comment on the briefs.

—  John Wright

More bad news from Election Night: 3 Iowa judges who backed marriage equality are defeated

Tena Callahan

Among the Democrats in Dallas County who hung on to their seats on Tuesday was State District Family Court Judge Tena Callahan, who in 2009 boldly declared Texas’ bans on same-sex marriage unconstitutional. Callahan defeated Republican opponent Julie Reedy by a margin of 52 percent to 48 percent, and her landmark decision didn’t appear to have hurt her at all at the polls.

However, the news was not so good for three Supreme Court judges in Iowa who ruled in favor of marriage equality in 2009. The three were all defeated in retention elections on Tuesday, after being targeted by the anti-gay National Organization for Marriage.

NOM spent $600,000 on TV ads and a 45-county bus tour targeting the Iowa justices. Despite their defeat, though, LGBT groups noted that same-sex marriage remains legal in Iowa.

“By their own admission, NOM’s Iowa strategy was about sending a warning shot to judges nationwide,” Human Rights Campaign President Joe Solmonese said in a statement. “NOM and its secret donors will continue to target judges around the country if they rule in favor of marriage equality and will foster an anti-gay, hostile environment in the process.”

Lambda Legal, which brought the lawsuit that resulted in the Supreme Court ruling legalizing same-sex marriage, had this to say about the result:

“Let’s be clear about what happened in Iowa and what didn’t happen: Three skilled jurists lost their jobs, but the Court’s ruling in the case allowing same-sex couples to marry is still the law of the land, enshrined in the Iowa Constitution. Same-sex couples continue to marry in Iowa. Antigay groups have lost on the big issue — equality — and they are attacking our courts for protecting it.

“This spiteful campaign is a wake-up call to future voters who must resist attempts to politicize the courts. It is the responsibility of us all to protect the system of checks and balances that defines our democracy, and it continues to be our responsibility at Lambda Legal to make our case for equality, not just before judges, but in the court of public opinion.

“We are angry, but we also take the long view: The Iowa Supreme Court delivered justice that will outlast this political fight by upholding the Iowa Constitution’s guarantee of equality for all Iowans. Seven jurists were posed a question by people who had been denied basic fairness guaranteed by the state constitution. The judges did their jobs with integrity – as they must.

“But the result in Iowa shines a light on a dangerous agenda to undermine the democratic system of checks and balances that has served us well for over 200 years. If an embattled judiciary were to lose its ability to protect our laws and constitution with impartiality, that would be a tragic loss for our country. We can’t let that happen.”

—  John Wright

Regardless of Tuesday’s outcome, this poster featuring local gay Dems will be a collector’s item

Dallas County District Clerk Gary Fitzsimmons, who happens to be gay, sent over this poster that will reportedly be going up around town in the next few days. It’ll also be part of an ad in this week’s Voice, we think. We can’t seem to get in touch with Fitzsimmons to ask him how it all came about — and how they managed to get all these folks in one room at the same time — but in some ways the poster speaks for itself. Fitzsimmons also mentioned that he can make extra copies, so you’d like one, call his campaign headquarters at 214-948-8700.

UPDATE: We finally spoke with Fitzsimmons, and he said the photo shoot for the poster was put together hastily on Monday afternoon in response to rumors that some in the LGBT community may stay home from the polls this year over disappointment with President Barack Obama and Congress, for failing to fulfill their promises on things like “don’t ask don’t tell.”

“The major thing here is that the Democratic Party in Dallas County has done very well by the gay community,” Fitzsimmons said. “A lot of folks may be disappointed in the pace of progress in Washington, but when you look at the Democratic Party in Dallas County, we’ve kept our promise to the LGBT community.”

Fitzsimmons pointed to people like District Judge Tena Callahan, a straight ally who’s up for re-election after last year declaring Texas’ bans on same-sex marriage unconstitutional.

“If we’ve got Democratic elected officials putting their asses, their careers, on the line for the gay and lesbian community, then the least we can do is stand up for them on Election Day,” he said.

Fitzsimmons said he’s “bullish” about Democrats’ chances in Dallas County on Tuesday and feels they will win most countywide races, including his own. But he said he’s concerned about races like the one for the District 4 seat on the Commissioners Court, which pits Republican incumbent Ken Mayfield against Democratic challenger Dr. Elba Garcia. Fitzsimmons called Mayfield “the most homophobic elected official in Dallas County” and “a sworn enemy of the gay community,” whereas Garcia is a proven friend.

“That race may be decided by less than 50 votes,” he said, noting the District 4 includes heavily gay neighborhoods in North Oak Cliff. “You can be dissatisfied with Washington, but this election is about what’s going on in Dallas County.”

—  John Wright

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

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