Case is 2nd same-sex divorce in Texas; Dallas judge ruled that amendment violated Constitution
AUSTIN — Texas continues to occupy center stage in the battle over gay divorce.
A district judge in Travis County last week granted a divorce to Sabina Daly of San Antonio and Angelique Naylor of Austin, a lesbian couple married in Massachusetts in 2004.
A day later, Texas Attorney General Greg Abbott filed a motion to block the divorce before it was entered into the official record.
Abbott, a Republican who’s up for re-election this year, is arguing that the court can’t grant the divorce because Texas doesn’t recognize same-sex marriage. Abbott filed a similar appeal last year after Judge Tena Callahan cleared the way for two gay men to divorce in Dallas. The Dallas case is now before the state’s 5th District Court of Appeals.
"Look what I’ve done, I’ve opened the floodgates of gay divorce," Peter Schulte, an attorney in the Dallas divorce, said jokingly this week.
Schulte said Naylor’s attorney, Jennifer Cochran, consulted with him about the Austin case.
"She was able to use a lot of my arguments to that judge down there, which I think put the judge over the edge," Schulte said.
"It definitely doesn’t hurt our case," he added of the Travis County ruling. "I think it’s positive because it’s not only an issue in Dallas, it’s an issue across the state. This is not going to be limited to one area."
Schulte said briefs have been filed in the Dallas case and he expects the 5th District Court of Appeals to issue a ruling by the end of the year. Schulte’s client, who’s asked to be identified only as "J.B.," married his husband in Massachusetts in 2006.
Same-sex marriage has been legal in Massachusetts since 2004, but the state has a residency requirement for divorce.
In her October ruling, Judge Callahan, a Democrat, said Texas’ bans on same-sex marriage violate the equal protection clause of the U.S. Constitution.
In the Austin case, Democratic Judge Scott Jenkins asked attorneys for Daly and Naylor to write briefs addressing whether he could grant a divorce based on the full faith and credit clause of the U.S. Constitution, which "requires that a valid judgment from one state be enforced in other states regardless of the laws or public policy of the other states."
According to The Austin American-Statesman, Daly and Naylor have an adopted son who’s now 4. They have been separated for more than a year.
After a two-day hearing last week about dividing property and sharing custody of the boy, Jenkins granted the divorce orally and ordered the parties to put their agreement in writing and return to court next month for his signature, according to the American-Statesman.
"This is the first time in over a year that our family has been at peace," Naylor told the newspaper. "We never asked them to grant us a same-sex marriage. We only asked them to legally recognize that we needed a divorce."
Abbott spokesman Jerry Strickland said in a statement, "The State maintains that the Court has no legal authority to grant this divorce, and as a result, the State must intervene in this case to defend the Texas Constitution."
Abbott’s opponent in the November election, Democrat Barbara Ann Radnofsky, has said she voted against the state’s 2005 constitutional amendment banning same-sex marriage.
Radnofsky has also said she believes the amendment may invalidate all marriages in Texas — gay and straight — because of how it’s worded.
This article appeared in the Dallas Voice print edition February 19, 2010.