Lesbian couple files for divorce in Bexar County

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A San Antonio couple has filed to dissolve their 2010 D.C. marriage.

The couple, Allison Leona Flood Lesh and Kristi Lyn Lesh, filed for divorce on Feb. 18 after separating in July. Their case is the first divorce sought by a same-sex couple in Bexar County, according to the San Antonio Express-News.

Eight days after they filed, U.S. District Judge Orlando Garcia ruled that the state’s ban on same-sex marriage and its refusal to recognize out-of-state marriages is unconstitutional. But Garcia stayed his ruling pending appeal. Texas Attorney General Greg Abbott later appealed the ruling to the 5th Circuit Court of Appeals.

The case may be put on hold until the Texas Supreme Court decides whether to allow same-sex couples to divorce in Texas. The court heard arguments for same-sex divorce in the state back in November, when lawyers for an Austin couple, who were granted a divorce, and a Dallas couple, who were still trying to obtain one, argued that the state didn’t need to recognize the marriages to dissolve the unions since the state where they were married already recognized their unions as legal.

The court has yet to rule in the cases, but a decision is expected by summer before the court’s recess.

But the San Antonio couple wants the case to move forward because they are also battling for custody of their 13-month-old daughter. Flood, who hasn’t seen the child in six months,  wants to share custody, while Lesh doesn’t because her wife isn’t the girl’s biological or adoptive parent. The Austin couple also has a child, but the case didn’t deal with custody.

“This illustrates what Judge Garcia identified as (what) same-sex couples are deprived of,” Neel Lane, one of the San Antonio lawyers for the gay couples who sued the state over the same-sex marriage ban, told the San Antonio Express-News. “First, they are deprived of the benefits of an orderly dissolution of a marriage. Second, their children are denied the benefit of the many laws to protect their interests in the event of a divorce.”

The couple has a hearing on Thursday.

—  Anna Waugh

Texas Supreme Court hears gay divorce cases

BenchJANUARY2013-5

The Texas Supreme Court

ANNA WAUGH  |  News Editor

AUSTIN — The Texas Deputy Attorney General for Legal Counsel argued before the Texas Supreme Court on Tuesday that state law requires marriages to be recognized before a divorce can be granted.

The Supreme Court took up the issue of gay marriage, considering whether the law allows same-sex divorce despite it not recognizing same-sex marriage.

The two cases involving two couples married in Massachusetts, Dallas couple H.B. and J.B. and Austin couple Angelique Naylor and Sabrina Daly, were consolidated for arguments.

The Dallas couple are still trying to get a divorce in the state. The case’s main issue deals with whether a trial court has jurisdiction over a same-sex divorce. The lesbian couple was granted a divorce in family court, but Texas Attorney General Greg Abbott appealed the decision.

Arguments for the couples focused on the validity of the marriage in another state, while highlighting that only the parties petitioning for a divorce, and not the state, have a right to contest it.

The state argued that the constitutionality of the state’s ban on same-sex marriage was brought into the cases and judges who ruled in the cases previously. Therefore, the state was justified to intervene and defend state law, which doesn’t recognize the marriages for any purpose.

Jody Scheske, the attorney for the gay couples, argued that despite Texas not recognizing same-sex marriage, gay couples are marrying in other states where same-sex marriages are legal. If those couples later divorce, they must petition their state of residence for a divorce.

—  Anna Waugh

TX Supreme Court to hear gay divorce cases

Angelique Naylor

Angelique Naylor stands near the Texas state capital in Austin in 2010. Naylor was granted a divorce from her and her wife’s Massachusetts marriage that same year, but the Texas Supreme Court will now hear the appeal challenging that the divorce violates the state’s constitutional marriage amendment.

It looks like the Texas Supreme Court will finally decide the fate of same-sex marriage in the Lone State State — at least for divorce purposes.

The high court recently requested additional briefs in the cases after the U.S. Supreme Court same-sex marriage rulings in June to determine what impact those rulings should have on their petitions. Combined oral arguments for the cases were scheduled Friday morning for Nov. 5.

Both cases, involving a Dallas gay couple and an Austin lesbian couple, have been before the high court since 2011. Briefs had been requested before, but the court hadn’t decided whether to take the cases, but legal experts expected them to take after the U.S. Supreme Court’s rulings.

Lesbian couple Angelique Naylor and Sabina Daly were granted a divorce in Austin in 2010. Anti-gay Texas Attorney General Greg Abbott intervened to challenge the divorce, but the appeals court ruled in 2011 that Abbott did not have standing. Abbott then appealed the decision to the Texas Supreme Court.

J.B. filed an uncontested petition for divorce from H.B. in Dallas County court four years ago to dissolve their 2006 Massachusetts marriage. But Abbott intervened to challenge the divorce petition, arguing that Texas’ constitutional amendment banning same-sex marriage also prohibits the state from granting gay divorces.

State District Judge Tena Callahan, a Dallas Democrat, later ruled in 2009 that not only could she hear J.B.’s petition but that the state’s marriage amendment is unconstitutional.

Abbott appealed to an all-Republican panel of the 5th District Court of Appeals reversed Callahan’s decision and ruled in Abbott’s favor in 2010. J.B. then appealed to state’s high court.

—  Anna Waugh

Is the Texas Supreme Court about to legalize same-sex marriage?

Rep. Dan Branch

Rep. Dan Branch

State Rep. Dan Branch is asking the Texas Supreme Court to block same-sex couples legally married in other states from obtaining divorces in the Lone State State. Meanwhile, attorneys for two same-sex couples seeking divorces in Texas are arguing that under the U.S. Supreme Court’s recent decision striking down part of the federal Defense of Marriage Act, Texas’ bans on same-sex marriage are also unconstitutional.

Branch, a Republican who’s running for attorney general in 2014, filed a friend-of-the-court brief Tuesday calling for the Texas Supreme Court to overturn the 3rd Circuit appeals court’s decision upholding a divorce granted to lesbian couple Angelique Naylor and Sabina Daly in Austin in 2010. Current AG Greg Abbott intervened to challenge the divorce after it was granted, but the appeals court ruled in 2011 that Abbott did not have standing. Abbott appealed the decision to the Texas Supreme Court.

In his brief, Branch notes that he was a co-author of Texas’ 2005 constitutional amendment banning same-sex marriage. He also says he authored unsuccessful legislation in 2009 seeking to guarantee that the AG’s office’s would be permitted to defend Texas’ bans on same-sex marriage in court.

“Opponents of traditional marriage know that Texans believe strongly in the traditional institution of marriage — so Respondents cannot achieve their goals at the ballot box. They also know that they are wrong as a matter of constitutional law — so Respondents also cannot achieve their goals in this Court,” Branch writes in the brief. “Accordingly, the only way that Respondents can try to impose their vision upon the people of Texas is to trample upon both the legislative process by which Texas laws are supposed to be written, and the adversarial judicial process by which constitutional disputes are supposed to be resolved. Put simply, this lawsuit demonstrates that opponents of traditional marriage want to exclude the people of Texas from the legislative process — and then they want to exclude the legal representative of the people of Texas, the Attorney General of Texas, from the judicial process.”

—  John Wright

Greg Abbott argues DOMA decision doesn’t allow gay divorce in TX

Texas AG Greg Abbott

Texas Attorney General Greg Abbott

Texas Attorney General Greg Abbott, a Republican who announced this week that he’s running for governor in 2014, argued in a brief filed Thursday that the U.S. Supreme Court’s recent decision striking down a section of the Defense of Marriage Act doesn’t allow same-sex couples to divorce in Texas.

Abbott has intervened to block two same-sex couples who were legally married in Massachusetts from obtaining divorces. Appeals in both cases are now before the Texas Supreme Court, which requested a new round of briefs in the wake of the high court’s ruling in Windsor v. United States, which struck down Section 3 of DOMA as unconstitutional.

Abbott’s office filed its brief Thursday in State of Texas v. Angelique Naylor and Sabina Daly, a case involving a lesbian couple that was granted a divorce by a Travis County district judge.

“Windsor does not empower one State to force every other State to recognize the marriage licenses it chooses to issue,” Abbott’s office wrote. “Only by ignoring Windsor’s extensive reliance on the States’ primary authority over marriage could Windsor be employed to attack Texas’s longstanding marriage policy.”

—  John Wright

4 years later, divorce-seeking gay Dallas couple J.B. and H.B. remain in ‘limbo’

J.B.

If justice delayed is justice denied, one could argue that the gay Dallas couple known as “J.B.” and “H.B.” have already effectively lost their case.

It was precisely four years ago this month when J.B. filed an uncontested petition for divorce from H.B. in Dallas County court, seeking to amicably dissolve their 2006 Massachusetts marriage.

Republican Texas Attorney General Greg Abbott promptly intervened to challenge J.B.’s divorce petition, arguing that Texas’ constitutional amendment banning same-sex marriage also prohibits the state from granting gay divorces. But State District Judge Tena Callahan, a Dallas Democrat, disagreed. Callahan ruled in September 2009 that not only could she hear J.B.’s petition — but also that the state’s marriage amendment is unconstitutional.

Needless to say, Abbott appealed, and not surprisingly, an all-Republican panel of the 5th District Court of Appeals reversed Callahan’s decision and ruled in Abbott’s favor in August 2010.

In March 2011, J.B. appealed the case to the Texas Supreme Court, and that’s where it’s been sitting ever since, joined by another same-sex divorce case from Austin. The state high court requested briefs in the case but has not scheduled oral arguments.

And now, James J. “Jody” Scheske, the attorney representing both J.B. and the lesbian Austin couple, says it’s possible the Texas Supreme Court will wait until after the U.S. Supreme Court has ruled in two marriage equality cases it has agreed to hear.

“The [Texas Supreme] Court has not decided whether it will hear either of them,” Scheske said in an email Tuesday. “There is no deadline for the Court to decide what it wants to do. The Court may be waiting to determine what the U.S. Supreme Court decides in the marriage-related cases, but that is only a guess. The U.S. Supreme Court will likely issue opinions in those cases at the end of June.”

Asked to comment on his clients’ predicament in the meantime, Scheske added, “Limbo is a good word for it.”

—  John Wright

Tom Brown Ministries named anti-gay hate group as El Paso pastor files appeal of recall ruling

Pastor Tom Brown

Just as El Paso pastor Tom Brown filed an appeal this week to the Texas Supreme Court, his Tom Brown Ministries was labeled a hate group by the Southern Poverty Law Center.

Brown filed an appeal Wednesday of a court’s ruling rejecting his effort to recall El Paso Mayor John Cook and two other council members over their support of domestic partner benefits for unmarried city employees.

This was just as the Southern Poverty Law Center was issuing its annual list of anti-gay hate groups. The 27 groups, up from 17 last year, includes Tom Brown Ministries.

Brown’s group is the second anti-gay group in Texas to be declared a hate group by the SPLC after the San Antonio-based Bethesda Christian Institute.

The El Paso City Council approved DP benefits in 2009, but were overturned in a ballot measure led by Brown’s El Pasoans for Traditional Family Values in 2010.

City Council voted to restore DP benefits last year, prompting Brown to begin a recall effort. While a county judge ruled in Brown’s favor after the recall was challenged in court by El Paso Mayor John Cook, the appeals court overturned the decision in February.

While Brown may have filed with the Texas Supreme Court, an attorney for Cook previously said the odds of the court taking the case are slim.

—  Anna Waugh

VICTORY: Appeals court blocks recall of El Paso officials who voted in favor of DP benefits

Friday's ruling was a major setback for anti-gay Pastor Tom Brown, who may also face criminal charges.

In a victory for supporters of LGBT equality, a Texas appeals court has rejected an effort to recall El Paso Mayor John Cook and two other council members over their support of domestic partner benefits for unmarried city employees.

Texas’ 8th Court of Appeals ruled unanimously on Friday that recall organizers, led by anti-gay Pastor Tom Brown, broke the law in gathering petition signatures for the recall election, which had been scheduled for this spring.

After the El Paso City Council first approved DP benefits for gay and straight city workers in 2009, Brown spearheaded a ballot measure that overturned them in 2010. Last year, after the City Council voted to restore DP benefits, Brown’s group launched its recall effort, which was challenged in court by Cook. A county judge initially ruled against Cook, but the appeals court overturned that decision.

The El Paso chapter of PFLAG issued a statement Friday saying: “It is with jubilation that the recall election, supported by Christian bigots, has finally reached the finish line. The judges clearly saw that this attempt was purely done out of hatred, disguised as the word of God.”

Brown and others may also face criminal charges based on the appeals court’s ruling, which found that his Word of Life Church violated a statute prohibiting corporate political contributions to recall elections. The court also found that Brown’s group, El Pasoans for Traditional Family Values, illegally raised money in support of the recall when it wasn’t registered as a political action committee.

Brown said recall organizers will appeal the ruling to the Texas Supreme Court, but an attorney for Mayor Cook believes it’s highly unlikely the high court would take the case. Cook, who cast the deciding vote in favor of restoring DP benefits last year, reportedly has spent $225,000 on his lawsuit seeking to block the recall. The mayor said he now plans to seek monetary damages against Brown’s group.

—  John Wright

Alvarado restaurant owner appeals $5K fine for calling customer gay to state Supreme Court

Frank's Place in Alvarado (via Google Maps)

A restaurant owner in Alvarado questioned the sexual orientation of one of her longtime customers. The customer sued, charging that the restaurant owner’s accusation that he was gay was defamatory and caused mental anguish.

Alvarado is south of Fort Worth along I-35W at U.S. 67 in Johnson County.

Phong Van Meter, the owner of the restaurant Frank’s Place, was fined $5,000 for publicly humiliating a loyal customer and ordered to stop “making or publishing defamatory, libelous and slanderous” comments. The ruling was upheld by the Court of Appeals, and Van Meter has now appealed to the Texas Supreme Court, according to Courthouse News.

Bennie Dale Morris, who has eaten at Van Meter’s restaurant for 20 years, “build[s] driveways and spread[s] sand for fixing yards around houses.” He said he had a drop in business as a result of Van Meter’s accusation.

So the lower courts ruled that being called gay is an insult? Or is it only an insult is you’re not gay? And if you are gay, can you sue for someone calling you straight? I hate when that happens.

—  David Taffet

Top 10: Trans widow continued her fight

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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