Texas appeals court hears argument in gay divorce case

by on April 21, 2010  •  In Marriage

The Texas state Attorney General challenged the decision by a Dallas trial court judge to grant a divorce to two men (J.B. and H.B.) who married in Massachusetts before moving to Dallas. Today the case reached the Fifth District Court of Appeals.

By John Wright, from the Dallas Voice:

…[The lawyer for the state argued] that the couple shouldn’t be allowed to divorce in Texas because their marriage isn’t considered valid under state law…

James Scheske, one of J.B.’s attorneys, countered that regardless of Texas law, the couple’s marriage is valid in the state where it was entered. To obtain a divorce in Massachusetts, the couple would have to re-establish residency there for at least six months. “My client’s very private matter has become a public spectacle,” Scheske told the justices. “He’s not seeking to enter into a same-sex marriage. He’s seeking a divorce from a valid marriage that was entered into in another state.”…

The attorney general’s office granted five of its 20 minutes to a representative from the … Liberty Institute. Hiram Sasser, director of litigation for the Liberty Institute, …noted that 76 percent of voters approved the amendment [banning same-sex marriage], and he said the issue of same-sex divorce shouldn’t be decided by judges. Under the federal Defense of Marriage Act, [he argued], states can choose not to recognize same-sex marriages from elsewhere. Sasser characterized gay divorce as an attack on same-sex marriage, but Scheske noted that constitutional issues didn’t arise in the case until the AG’s office became involved.

J.B. filed for a divorce in January 2009, and a day later … Attorney General Greg Abbott challenged the petition. Judge Tena Callahan …  ruled in October of last year that she had jurisdiction to hear the case, saying Texas’ bans on same-sex marriage violate the equal protection clause of the 14th amendment. At the request of J.B.’s attorneys, Callahan later amended her ruling to say that the case doesn’t implicate Texas’ marriage bans, but instead involves the question of whether same-sex divorces can be granted under the state’s Family Code.

“Granting a divorce to a same-sex couple promotes Texas policy because it ends a same-sex marriage,” Scheske told the appeals court on Wednesday. “We think it’s axiomatic that granting a divorce means one less same-sex marriage in Texas,” he said later at the press conference. “We’re not challenging the same-sex marriage ban. That’s not what we’re doing, because my client is already in a same-sex marriage. My client just wants a divorce.”…

Also attending Wednesday’s hearing was Angelique Naylor, a lesbian who was recently granted a divorce from her wife in Austin. Abbott’s office has also filed a notice of its intent to appeal the district judge’s decision in Naylor’s case.


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