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

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.