Gay marriage in Texas through... gay divorce?

Apr. 20, 2010 (Star-Telegram) - The question of whether same-sex couples who marry in other states should be able to divorce in Texas -- which recognizes only marriages between a man and a woman -- heats up today when it goes before an appeals court in Dallas.

The case, expected to draw national attention, involves two Dallas men, identified in court documents as "J.B." and "H.B." who married in Massachusetts in 2006 and want a divorce. State attorneys will argue to the 5th Court of Appeals today why that should not happen in Texas.

This is the first such case in Texas to be appealed to a higher court -- and one that could go all the way to the Texas Supreme Court before a precedent-setting ruling is delivered, political observers say.

"This is likely to be the major civil-rights initiative of the coming decade," said Cal Jillson, a political science professor at Southern Methodist University in Dallas. "The 1960s were about the rights of blacks. The '70s were about the rights of women. Civil-rights initiatives [for same-sex couples] is likely to be the next one we wrestle with." I like how gay marriage has now come under the umbrella of the civil rights movement. There is an attempt to compare gay unions to the struggles of black people in this country.  It's disingenuous and a slap in the face to minorities to equate a defilement of the divine order to the persecution of a people who experienced segregation and lynchings in living memory.

At issue is an October ruling by Judge Tena Callahan of the 302nd Family District Court in Dallas that Texas' gay-marriage ban violates the U.S. Constitution's guarantee of equal protection under the law.

Texas Attorney General Greg Abbott has intervened and said the two men can't be divorced in Texas because the state doesn't recognize their marriage.

"Because the parties' Massachusetts-issued arrangement is not a marriage under Texas law, they are asking a Texas court to recognize -- and dissolve -- something that does not legally exist," Abbott has said in a statement. "These two men are seeking a court ruling that challenges the Texas Constitution; therefore, the office of the attorney general will intervene to defend Texas law -- and the will of Texas voters (who voted in favor by 76%)."

Texas voters approved a state constitutional amendment in 2005 banning same-sex civil unions and gay marriage.

The case

J.B. and H.B. separated two years after they married and decided to seek a divorce last year.
When Callahan heard the case, she did not dismiss it and said the state's same-sex-marriage ban violates rights guaranteed by the U.S. Constitution.

Abbott, who has said this case is an "apparent constitutional attack," has appealed Callahan's decision not to dismiss the case -- as he has appealed the case of two Austin women who have an adopted child and were granted a divorce this year.

J.B. has gone on TV and said he isn't trying to be a test case to expand gay rights in Texas.
His attorney, Peter Schulte, has said: "It's funny that the only individual that has made this a test case is the attorney general of Texas." Schulte will argue the case in court today.
Many in the gay and lesbian community say this issue needs to be resolved. It was, by the Defense of Marriage Act 5 years ago.

"This highlights a problem that ultimately is going to have to be addressed: the idea that people are trapped in marriages they don't have any orderly way of dissolving," said Ken Upton, an attorney with Lambda Legal in Dallas, which combats discrimination against gays, lesbians and people with HIV/AIDS. "It's not acceptable."

Same-sex divorces are getting mixed reactions in the courts. A Pennsylvania judge recently rejected a divorce filing for two women, but New York judges have granted divorces even though the state doesn't recognize same-sex marriages.

The arguments

The Texas attorney general's office has said the state constitution and Texas' Defense of Marriage Act prevent same-sex unions and marriages and that's why same-sex divorces should not be granted. Legal observers say the two men could move to Massachusetts, establish residency and then legally file for divorce.

The attorney general's office has said one option is "voidance," a legal way to end an "invalid" relationship.

"By pursuing an action for voidance, instead of divorce, the parties can quickly resolve this case and move on with their lives -- without raising any unnecessary constitutional questions, or attacks on, the Texas Constitution, Family Code and the federal Defense of Marriage Act," according to a court filing by Abbott's office.

Schulte may argue that the U.S. Constitution's full faith and credit clause should require Texas to recognize laws of other states -- including those that allow same-sex marriages -- and therefore grant the divorce.