‘This is our new Buchmeyer decision’

Posted on 08 Oct 2009 at 8:35pm
By By John Wright | News Editor wright@dallasvoice.com

Ruling in divorce case compared to late judge’s historic 1982 decision striking down Texas’ sodomy law

Judge Tena Callahan

Ten days after Jerry Buchmeyer’s death, Tena Callahan paid tribute.

Local LGBT advocates said this week they feel Judge Callahan’s Oct. 1 ruling in a same-sex divorce case — in which she declared Texas’ marriage amendment unconstitutional — was just as significant for the community as Judge Buchmeyer’s historic 1982 decision striking down the state’s sodomy law.
Buchmeyer died at 76 on Sept. 21.

Erin Moore, president of Stonewall Democrats of Dallas, called Callahan’s ruling the “first salvo” in the battle to overturn Texas’ ban on same-sex marriage, which was approved by a three-fourths majority of voters in 2005.

‘J.B.,’ on ABC

“This is our new Buchmeyer decision,” Moore said. “The first step was to get the sodomy laws overturned so we could be legal citizens. With this ruling, it’s saying we’re full and equal citizens.”

Openly gay Dallas County District Clerk Gary Fitzsimmons, who works closely with Callahan and other state district court judges, said in some ways, her ruling was even more impressive than Buchmeyer’s.

“This weekend I heard someone remark that Judge Callahan’s decision ranks right up there with the gutsy decisions made by Judge Buchmeyer,” Fitzsimmons said this week. “However, there’s one huge difference. As a federal judge,

Buchmeyer held a lifetime judicial appointment. Judge Callahan on the other hand, must run and get elected to her office every four years. That says a lot about Judge Callahan’s character that she was willing to assert so forcefully that the constitution guarantees equal protection for gay and lesbian people. I think GLBT people owe Tena an immense debt of gratitude.”

Callahan, who presides over Dallas County’s 302nd District Family Court, refused comment this week because the case is still pending.

Peter Schulte

“Anything I say I believe would be a comment on the case, either directly or indirectly,” Callahan said in a message via Facebook. “Thus it’s best to not comment at all.”

Callahan, a 54-year-old Dallas native, was elected in the 2006 Democratic sweep that saw Dallas turn blue, with the party winning all countywide races. Callahan was endorsed that year by Stonewall Democrats, the largest North Texas-based LGBT political group.

Moore said Callahan is also a current member of Stonewall, meaning she’s paid her $35 in annual membership dues.

Both Moore and former Stonewall President Jesse Garcia said they feel that in some ways Callahan’s ruling represents the fruits of the group’s labor in 2006.
“It’s just like yes, this is what I put my hard work and money toward, and it’s paying off finally,” Garcia said a day after the ruling. “Like always, the local politicians are just as important as the national ones.”

Moore said Stonewall doesn’t retain copies of the group’s endorsement questionnaires, meaning it’s unknown how Callahan responded to written questions posed by the group. Garcia, who helped lead Stonewall’s weekend-long endorsement meeting in 2006, said Callahan “didn’t stand out” but “was not bad whatsoever” when she interviewed.

According to a biography on the Dallas Bar Association’s Web site, Callahan was an acting major at UT-Austin who worked in sales and advertising for 10 years before going back to school and launching a family law practice in 1992.

Neither Callahan’s campaign Web site nor her Facebook page list any direct LGBT affiliations, but it’s not the first time she’s received media attention for a gay-related case.

According to Dallas Morning News archives, in 1999, Callahan represented two Waxahachie-area men who were forced to give up a baby they had cared for since birth, due to apparent anti-gay bias on the part of an Ellis County judge. The outcome of the case was unclear.

And last year, Callahan presided over a custody dispute between Kristine Vowels and Tracy Scourfield, two lesbian partners who’d separated after having a child through artificial insemination. After Scourfield, the child’s biological mother, ended Vowels’ visitation rights, Vowels sought partial custody.

But Callahan ruled that Vowels didn’t have legal standing and dismissed her lawsuit.

“Judge Callahan totally avoided the question of what is in the best interest of this child, and she kicked us to the curb at the very beginning of the case,” Vowels’ attorney, Michelle May O’Neil, told Dallas Voice at the time.

In her decision last week, Callahan ruled she has jurisdiction to consider the same-sex divorce petition, which was filed in January by a man who’s asked to be identified only as “J.B.”

Although J.B. and his husband, “H.B.,” are identified in some court documents by their full names, Dallas Voice is publishing only their initials because J.B. has said publicity about the case could negatively impact his employment.

J.B. and H.B. were married in Cambridge, Mass., in 2006 before moving to Texas. They can’t obtain a dissolution of their nuptials in Massachusetts, where same-sex marriage has been legal since 2004, because the state has a residency requirement of one year for divorce.

Texas Attorney General Greg Abbott, a Republican, intervened in the case after J.B.’s petition was filed in January, arguing that Texas courts can’t grant divorces to same-sex couples because the state doesn’t recognize same-sex marriage.

But Callahan ruled against the AG’s Office, saying that the state’s constitutional amendment banning same-sex marriage — along with a parallel section of Texas Family Code — violates the 14th Amendment of the U.S. Constitution, which guarantees equal protection under the law.

The 14th Amendment was also a primary basis for Buchmeyer’s 1982 ruling in Baker v. Wade, which was overturned by an appellate court three years later. It wouldn’t be until 2003 that the U.S. Supreme Court, ruling in Lawrence v. Texas, would finally strike down the sodomy statute.

Needless to say, LGBT advocates are hoping it won’t be 21 years after Callahan’s ruling before same-sex marriage is legalized in Texas.

“Things move faster these days, and certainly public opinion has changed dramatically since those times,” Moore said.

The AG’s Office filed a notice of appeal the morning after Callahan’s decision, and the case is now expected to proceed to the state’s 5th District Court of Appeals. From there, any ruling could be appealed to the Texas Supreme Court, and possibly after that to the U.S. Supreme Court.

Dallas attorney Peter Schulte, who represents J.B., said proceedings in the case have been suspended pending the appeal, meaning his client won’t be granted a divorce decree.

Schulte, a former Democratic candidate for Dallas County sheriff who plans to run for the Texas House District 108 seat next year, said he’ll take the case as far as his client wants.

It could be six moths to a year before the Court of Appeals issues a ruling, Schulte said.

But in the meantime, his client won’t be conducting any additional media interviews.

Both Schulte and J.B. appeared Sunday, Oct. 4 on “Good Morning America Weekend,” where they again insisted that the divorce isn’t “a test case” designed to further LGBT equality. In fact, they said, the case isn’t about same-sex marriage at all.

Asked whether he celebrated Callahan’s ruling, J.B. told host Bill Weir, “I don’t think the end of anyone’s marriage should be celebrated as a victory.”

Asked to what degree the case is motivated by gay rights, J.B. said, “From the beginning, I have said this is not a test case, I’m not the poster child. … This is not about gay and lesbian marriage.”

Schulte added: “It’s funny that the only person who’s made this a test case is the attorney general of Texas. When we filed this divorce, we didn’t have a press conference on the courthouse steps … .”

Schulte told Dallas Voice this week he’s surprised that the case has gotten so much media attention.

“We had no idea that it would go national so quickly,” he said.

Schulte said he’s received numerous inquiries from attorneys interested in the case, and he’s been joined as co-counsel by Akin Gump Strauss Hauer & Feld, which is known for its appellate work and is one of the largest law firms in the world.

This interest stands in stark contrast, Schulte said, to 10 months ago, when the case was widely criticized by both LGBT legal experts and gay-rights advocates.
Some say they still fear a political backlash from the case heading into the 2010 election season, and legal experts have warned that it could give judges an opportunity to interpret the constitutional amendment broadly, resulting in negative precedent.

But most in the community now seem to be on board.

“There’s going to be backlash, but having the conversation has never been a bad thing,” said Moore. “Shining the light can only be good for our community. … I think it’s really ill-advised to run away from a fight because you’re afraid of backlash. You need to fight the fight, if no one does, things stay the same, and that’s not acceptable either.”

Schulte said although J.B.’s isn’t a test case, he believes Texas is a “great venue” for pursuing the matter.

“If this was in the Northeast, nobody would think twice about it,” Schulte said. “Because this is Texas, I think it highlights the fact that regardless of what your position is on gay marriage, you’re going to have couples who are married in other states who want to move. It’s going to be a long time before all 50 states have laws that allow gay marriage, and until that happens this is going to be a problem.

The only right answer is that they’re going to have to allow gay divorce. They’re not going to necessarily have to allow gay marriage.”

Jennifer Pizer, senior counsel and marriage project director at Lambda Legal, the national LGBT civil rights group, said it’s impossible to predict what the outcome of the case will be.

“The Texas Supreme Court has a reputation for being quite conservative, so I think many people would be surprised if the Texas Supreme Court were to decide that the restriction of marriage just to heterosexual couples is a violation of equal protection, but as I said, it’s too early to guess,” Pizer said.

“The Texas Supreme Court has a reputation for being quite conservative, but sometimes we can be pleasantly surprised. I would not prejudge this. We will watch closely and will be hoping for the best of this couple,” she said.

Pizer said she thinks the U.S. Supreme Court would be more likely to take up the case if the Texas Supreme Court rules in favor of J.B., because it would raise questions about other states’ marriage amendments.

She also noted that experts have long believed the equal protection clause holds the key to marriage equality.

“The question is just how we get there and how long it will take us to get there,” she said.

“I think it’s early to be trying to identify any one case as likely to break the issue open and change the entire national landscape. Rather I think this case and many other separate efforts are part of an effort to chip away at harmful discrimination that exists in many states and at the federal level.”

Pizer said any time lawsuits are presented dealing with issues that affect a whole community, there are potential legal upsides and downsides. In this case, the potential downside would be a ruling that extends beyond the scope of marriage to areas like parental or employment rights.

But she added that the case has already introduced convincing evidence in the court of public opinion that the marriage ban is not just “abstract symbolism,” but has “practical consequences” in people’s lives.

“I hope that even just this ruling will prompt some people in Texas and elsewhere to ask themselves what useful public purpose is served by rules that lock gay and lesbian couples out of the legal system,” Pizer said.

“I don’t have any batteries for my crystal ball, so I can’t tell you whether this case will advance us legally, or set us back legally, or do neither of those things. I do know that already the conversation has put an important spotlight on an issue that affects many people in Texas. … I hope it has prompted some people in Texas to think again about why they might have voted for the constitutional amendment.

This article appeared in the Dallas Voice print edition October 9, 2009.

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