Canadian PM correcting divorce law to allow recognition of all marriages

The Conservative government of Prime Minister Stephen Harper is moving quickly to change Canadian divorce law in order to allow recognition of all same-sex marriages. The action is in response to a Justice Department attorney in Toronto interfering in the divorce of an American couple that was married in Canada.

Prime Minister Stephen Harper

This contrasts sharply with the action of Texas Attorney General Greg Abbott who intervened in divorce cases in Dallas and Austin.

In the Dallas case, a couple that lived and married in Massachusetts moved to Dallas and then tried to divorce. Abbott intervened saying that the divorce could not be granted because the marriage wasn’t valid.

In the Canadian case, the attorney argued that the divorce could not be granted because Canadian divorce law requires residency.

The Harper government threatened to invalidate all same-sex marriages of couples that lived where same-sex marriage wasn’t recognized.

What Harper and Abbott have in common is a disdain for same-sex marriage. Both interfered in simple divorce proceedings. What is different is the outcome.

While Abbott prefers that a same-sex couple remain married to show just how much they’re not married and demonstrate how they’re destroying traditional marriage as it’s existed since Biblical times, Harper decided to change divorce laws to make it easier for couples to split.

Harper had fewer options. While public opinion and court opinions are moving away from Abbott’s position, Harper has a clear ruling from the Canadian Supreme Court. In Canada, marriage equality has been ruled a right.

Julie Vaux, press secretary to Justice Minister Rob Nicholson, sent a message to Dallas Voice that the minister could not comment on an ongoing divorce proceeding, however, “I want to be very clear that our government has no intention of reopening the debate on the definition of marriage. The case reported in the media involves the fact that, under current law, some marriages performed in Canada could not be dissolved in Canada.”

She places the blame on the previous Liberal government and said, “This is a legislative gap left by the Liberal government of the day when the law was changed in 2005. The confusion and pain resulting from this gap is completely unfair to those who are affected.”

But her main point is that all marriages performed in Canada will remain valid:

I want to make it very clear that, in our government’s view, these marriages should be valid. We will change the Civil Marriage Act so that any marriages performed in Canada that aren’t recognized in the couple’s home jurisdiction will be recognized in Canada.
This will apply to all marriages performed in Canada. We have been clear that we have no desire to reopen this issue – both myself and the Prime Minister consider this debate to be closed.

—  David Taffet

Top 10: Trans widow continued her fight

araguz2

VOWING TO WIN | Nikki Araguz says she will appeal her case all the way to he U.S. Supreme Court if necessary. (Courtesy of Nikki Araguz)

No. 8

The Texas Constitution defines marriage as between one man and one woman, but how will the state define “man” and “woman”?

Transgender marriage cases in Dallas and Houston could force the Texas Supreme Court — or even the U.S. Supreme Court — to ultimately decide the thorny issue.

In Houston, transgender widow Nikki Araguz has appealed a district judge’s ruling denying her death benefits from her late husband, Thomas Araguz III, a volunteer firefighter who was killed in the line of duty in 2010.

The judge, Randy Clapp, granted summary judgment to Thomas Araguz’s family, which filed a lawsuit alleging the couple’s 2008 marriage is void because Nikki Araguz was born male, and Texas law prohibits same-sex marriage.

The Araguz family’s argument relies heavily on a San Antonio appeals court’s 1999 ruling in Littleton v. Prange, which found that gender is determined at birth and cannot be changed.

However, LGBT advocates say the Littleton ruling is unconstitutional, goes against medical science and isn’t binding in other parts of the state, where it has not always been followed.

In Dallas, a district judge apparently reached the opposite conclusion from Clapp this November — denying a similar motion for summary judgment.

James Allan Scott, a transgender man, is seeking a divorce settlement from his wife of 13 years, Rebecca Louise Robertson. However, Robertson wants to have the marriage declared void because Scott was born a biological female.

District Judge Lori Chrisman denied Robertson’s motion for summary judgment, which leaned heavily on Littleton. The judge provided no explanation for her ruling allowing the matter to proceed as a divorce, at least for now.

It’s unclear whether Texas Attorney General Greg Abbott plans to intervene in the Dallas case. Abbott has intervened in same-sex divorce cases in Austin and Dallas, seeking to block them. But thus far he has stayed above the fray on transgender marriage, even though it presents overlapping issues.

After a transgender woman and a cisgender woman applied for a marriage license in 2010, the El Paso County clerk requested a ruling from Abbott about whether to grant it. But Abbott opted not to weigh in, with his office saying it would instead wait for court rulings in the Araguz case. The El Paso couple was later able to marry in San Antonio, where the county clerk went by Littleton v. Prange.

In response to the Araguz case, a bill was introduced in the Texas Legislature this year to ban transgender marriage. The bill would have removed proof of a sex change from the list of documents that can be used to obtain marriage licenses. Strongly opposed by LGBT advocates, it cleared a Senate committee but never made it to the floor.

Trans advocates said the bill also would have effectively prohibited the state from recognizing their transitioned status — or, who they are — for any purpose.

The problem for socially conservative lawmakers is, they can’t have it both ways. Marriage is a fundamental right that courts have said can’t be taken away from a person completely. So no matter what, Texas will be forced to allow a version of same-sex marriage.

Which is why some believe the cases could help undo the marriage amendment.

— John Wright

This article appeared in the Dallas Voice print edition December 30, 2011.

—  Kevin Thomas

Proposed divorce law could make D.C. the marriage destination of choice for gay Texans

Mrs. Barry Herridge

The straights have a new poster child for traditional marriage.

Sinead O’Connor ended her marriage to therapist Barry Herridge after 16 days. She said she knew the marriage was doomed just three hours after the ceremony.

But she still made it to 16 days. Maybe she needs to see a therapist. Oh wait … maybe she just needs to blame it on the gays.

But at least she will be able to end her marriage — no matter where she lives.

The Washington D.C. city council will take up a same-sex divorce ordinance in January, according to the Washington Post. The bill has the support of eight out of 13 city council members.

The problem, according to the city’s leaders, is that anyone can marry in D.C., but only residents can file for divorce there.

Texas Attorney General Greg Abbott has done his part to deny marriage to same-sex couples by preventing them from getting divorced. One case in which he intervened involves a Dallas couple that was married in Massachusetts. Currently all 50 states and D.C. have a residency requirement for divorce.

With the attorney general’s intervention, the Dallas couple remains married, three years after beginning the process of divorce.

Should the D.C. law pass, couples married in that city will be able to divorce there, no matter where they live. Abbott will be unable to prevent Texas couples married there from divorcing there.

But O’Connor will be able to get divorced wherever she lives. And her 16-day marriage will be considered “traditional.”

—  David Taffet

Gay divorce case appealed to TX Supreme Court

‘J.B.’

More than two years after he filed an uncontested petition for divorce, attorneys for the gay Dallas resident known as “J.B.” have appealed his case to the Texas Supreme Court.

J.B. and his husband, H.B., were married in 2006 in Massachusetts before moving to Dallas. After they filed for a divorce in Dallas County in January 2009, Democratic District Judge Tena Callahan ruled in October 2009 that she had jurisdiction to hear the case, calling Texas’ bans on same-sex marriage unconstitutional.

Republican Texas Attorney General Greg Abbott promptly intervened and appealed to the 5th District court, which overturned Callahan’s decision.

On Feb. 17, attorneys at Akin Gump Strauss Hauer and Feld, which represents J.B., filed a Petition for Review of the 5th District’s ruling by the Texas Supreme Court.

“This Court should grant review because this case involves questions of great importance to Texas state law, which likely will recur with increasing frequency until this Court provides guidance,” the attorneys wrote in their Petition for Review. “Over 28% of the U.S. population lives in a jurisdiction where same-sex marriage or its equivalent is permitted. Texas is one of the nation’s fastest growing states—attracting thousands upon thousands of migrants each year, including couples from those states that permit same-sex marriage. Thus, there is an increasing likelihood that same-sex couples legally married in another state will move to Texas and eventually seek divorce in Texas. Whether Family Code section 6.204 prevents these same-sex couples who were legally married in another state from obtaining a divorce in Texas, and whether this violates the U.S. Constitution, are questions important to the state’s jurisprudence, and should be, but have not yet been, resolved by this Court.”

To read the full petition for review, go here.

—  John Wright

Bill would ease sexting penalties, but consensual gay sex can still be a felony for teens in Texas

Attorney General Greg Abbott

Texas Attorney General Greg Abbott is endorsing legislation that would ease criminal penalties for teens who are convicted of sexting — transmitting explicit photos of themselves or other minors using computers and mobile devices.

Currently, teens who send or receive photos of someone who is underage can be charged with third-degree felony child pornography, punishable by up to 10 years in prison, and forced to register as sex offenders for the rest of their lives.

Under SB 408, which was filed today, sexting would become a class-C misdemeanor for first-time violators who are under 18.

“Studies show that teenage students are increasingly taking, sending and receiving explicit pictures of themselves on their mobile telephones,” Abbott said in a press release. “This dangerous trend is harmful to young Texans. We are joining with Sen. Kirk Watson to address the growing problem of sexting and educate – not criminalize – young Texans who make the unwise decision to participate in it.”

For once we agree with Abbott here. This bill makes sense for both straight and LGBTQ teens, and perhaps especially for gay teens in the age of Grindr, etc.

But if our attorney general truly supports the concept of not criminalizing teens, he should also support efforts to fix the state’s discriminatory age-of-consent laws, commonly referred to as “Romeo and Juliet” provisions.

As we’ve noted before, if a 17-year-old MALE has consensual sexual contact with a 16-year-old MALE in Texas, the older individual can be charged with a second-degree felony and sentenced to up to 20 years in prison. On the other hand, if the older individual is MALE and the younger person is FEMALE (or vice versa), the older person can argue an “affirmative defense” and have the charge dismissed on that basis.

In other words, while SB 408 would make sexting a class-C misdemeanor, gay teens who have consensual sex, unlike their straight peers, have no defense against a charge of indecency with a minor.

Rep. Garnet Coleman, D-Houston, has introduced bills in previous sessions that would fix this discriminatory law, but there’s no word on whether he plans to do so this year.

Even if he does, don’t expect Abbott to support it.

UPDATE: Coleman’s office confims that he does plan to file the bill again this year.

—  John Wright

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

City asks AG’s office whether records related to raid of The Club-Dallas should be released

The city of Dallas has requested an opinion from the Office of the Attorney General of Texas as to whether the city must release records related to the Police Department’s Oct. 8 raid on The Club-Dallas, a gay bathhouse in Deep Ellum.

Dallas Voice has requested, under the Texas Public Information Act, all records related to the 11 arrests that occurred during the raid, as well as all documents related to a complaint DPD says was filed against The Club-Dallas by a citizen that led to the raid.

In a Nov. 2 letter to Texas Attorney General Greg Abbott responding to the Voice’s request, Assistant City Attorney J. Middlebrooks wrote that parts of the requested information are protected from public disclosure. A full copy of the letter is below. The AG’s office has 45 days to issue a decision.

—  John Wright

Is Greg Abbott going to sit idly by while a federal court throws out Texas’ gay marriage ban?

Greg Abbott

Ten states have submitted a brief opposing same-sex marriage to the federal appeals court that will decide whether California’s Proposition 8 violates the U.S. Constitution, The Associated Press reports. But guess what? Texas isn’t one of them.

Anti-gay Texas Attorney General Greg Abbott, who’s fought to prevent Texas courts from recognizing same-sex marriage even for the limited purpose of divorce, has failed to get involved in a case that could ultimately result in the state’s marriage ban being thrown out:

Former Utah Sen. Scott McCoy, the first openly gay state senator, said Saturday he is not surprised Utah signed on to the opposition brief. If the California ruling against Proposition 8 is upheld, it would follow that Utah’s Amendment 3, which defines marriage as a union exclusively between a man and a woman, is unconstitutional, he said.

Abbott’s failure to get involved is even more surprising given that the brief filed Friday specifically argues that states, and not federal courts, should determine whether to allow same-sex marriage. As you may know, Abbott is all about states’ rights and protecting us from Washington and the evil federal government. So what gives?

We’ve contacted spokesman Jerry Strickland to find out why the Texas AG’s office has chosen to sit this one out, but thus far no response. Stay tuned.

—  John Wright

Texas AG Greg Abbott: Judge in Prop 8 case ‘failed to do what a judge is supposed to do’

A few weeks back we wrote about how anti-gay leaders in Texas were deafeningly silent about U.S. District Judge Vaughn Walker’s landmark decision declaring Proposition 8 unconstitutional. As we said at the time, this case has the potential to void gay marriage bans in all states including Texas that have passed them, so one might expect the folks who pushed through the 2005 state constitutional amendment to chime in. Our post was later picked up by Rachel Maddow. Anyhow, looks like Texas Attorney General Greg Abbott, who’s been fighting gay divorce tooth and nail, has finally said something about Walker’s ruling, in an interview last week with the Texas Tribune (which has seemingly become the only mainstream media outlet in the state that even pretends to care about LGBT issues). Below is a transcript of the full exchange between Abbott and the Tribune’s Evan Smith, taken directly from the first three minutes of the video. Smith asks legitimate questions but fails to follow them up and seems to let Abbott off the hook pretty darn easily. For example, Smith allows Abbott’s assertion that Baker v. Nelson is binding precedent — which is pretty far-fetched at this point — to go unchallenged. Likewise, Abbott fails to respond substantively about Ken Mehlman’s coming out or the issue of transgender marriage. Again, kudos to the Tribune for bringing up these topics, but ultimately that’s not enough — they need to do their homework and be prepared to hold people’s feet to the fire.

Smith: I want to start with a bit of news that broke yesterday afternoon, and that is about Ken Mehlman. Ken Mehlman is the former chair of the Republican National Committee. He was George W. Bush’s campaign manager in ’04, a close aide to George W. Bush over the years politically, who I think as you know announced yesterday that he’s gay, and that he intended to use that public position to campaign for gay marriage? What do you think about that?
Abbott: What do I think about Ken Mehlman?

Smith: What do you think about the Mehlman announcement and what do you think the larger significance of the Mehlman announcement is if there is any for the discourse about gay marriage in this county?
Abbott: Well it adds further discourse into the whole issue, but it doesn’t change the legal dynamics. What one person feels doesn’t change the law, doesn’t change the constitution, doesn’t change pre-existing Supreme Court precedent on the issue.

Smith: So there’s a legal issue that you addressed. Mehlman’s announcement doesn’t change that. But there’s also a political dynamic, surely you would agree, at work here?
Abbott: Well, there is a political dynamic. There’s a political dynamic that’s been in play for decades. But once again, the political dynamic is not going to rewrite the constitution. The constitution says what it says, and just because one person comes out and says, “Listen, I’m gay, I believe in same-sex marriage, doesn’t change the constitution.

Smith: And nor does necessarily the actions of a judge in California, as one did recently, holding the door open to the overturning of the proposition in California That as well is one judge’s decision and does not overall affect the issue?
Abbott: It doesn’t impact the issue. If you want to delve into the details, the reality is that that judge failed to do what a judge is supposed to do. Lower court judges are supposed to follow higher-court precedents. There is a precedent from the United States Supreme Court on this issue, in Baker v. Nelson, that is binding precedent on the lower courts unless and until the Supreme Court changes that opinion, and that binding opinion is one that doesn’t recognize same-sex marriages.

Smith: You had the opportunity recently in a case here in Texas involving a transgender individual to offer an attorney general’s opinion. This is a case where people say it may be kind of a small crack in the door, where gay marriage is actually in certain instances legal in Texas. Your office was asked to offer an opinion, and you declined to. Can you talk about that?
Abbott: First of all, we had three opportunities to weigh in legally in courts about whether or not gay marriage is legal in the state of Texas. The issue you’re talking about is the transgender issue, and that involved an issue where we got an opinion request from the county attorney in El Paso, and we rejected opining on that opinion because of current pending litigation. Now if I tell the county attorney from El Paso that I will not give them an opinion, Evan, I’m not going to give you an opinion either.

—  John Wright