Callahan says amendment banning same-sex marriage violates federal equal protection clause
A Dallas state district judge has ruled that she has jurisdiction to grant a divorce to a same-sex couple that was married in Massachusetts but now resides in Texas, in what an attorney representing one of the parties is calling a major victory for LGBT equality.
After the divorce petition was filed in January, the state Attorney General’s Office intervened in the case, arguing that Texas courts may not grant divorces to same-sex couples because the state doesn’t recognize same-sex marriages.
But Judge Tena Callahan, a Democrat who presides over Dallas County’s 302nd Family District Court, ruled Thursday, Oct. 1 that Texas’ constitutional amendment prohibiting same-sex marriage — approved by voters in 2005 — violates the equal protection clause of the 14th amendment to the U.S. Constitution.
“That’s what’s significant,” said attorney Peter A. Schulte, who represents the man who filed for a divorce from his husband. “It’s the first time in Texas that a court has acknowledged that there is an issue with the way our statute and our constitution is drafted when it comes to same-sex couples. That is huge for the community.”
Schulte said he expects the AG’s Office to appeal the decision, but not before his client is granted a divorce decree within the next few weeks.
Texas Attorney General Greg Abbott, a Republican, issued a statement Thursday saying he’ll appeal the ruling.
“The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman,” Abbott said. “Today’s ruling purports to strike down that constitutional definition — despite the fact that it was recently adopted by 75 percent of Texas voters.”
Schulte has said he believes Abbott’s motives for getting involved in the case are purely political, and Abbott wasn’t the only leading Texas Republican to issue a statement criticizing the ruling Thursday.
“Texas voters and lawmakers have repeatedly affirmed the view that marriage is defined as between one man and one woman,” Perry said. “I believe the ruling is flawed and should be appealed. I am confident that Attorney General Abbott and the will of Texas voters will prevail, and traditional marriage will be upheld in our state.”
Schulte’s client, identified in court documents only as “J.B.,” married his husband in Massachusetts in 2006 before they moved to Texas. The couple cannot obtain a divorce in Massachusetts because the state has a residency requirement for divorce.
J.B., who asked his full name not be used because he isn’t out as gay at work, told Dallas Voice in January that the couple had been together for 11 years. J.B., who couldn’t be reached for comment Thursday, said in January that if Texas refused to grant him a divorce, it would be ironic since most politicians in the state oppose same-sex marriage.
“I can’t imagine a conservative state like Texas not being joyfully willing to stamp their approval on that,” J.B. said. “I think we’ve been through enough just going through what we’re going through, and should be allowed the same dignity and respect as any two people who have irreconcilable differences. It is my hope that Texas will be satisfied enough to pass the appropriate judgment and not make a grandstand out of this for publicity to further people’s careers, because again, these are human lives that are being dealt with.”
J.B. said he and his husband own a home together in Dallas, but stopped living together in November 2008. He said they have no children and have agreed to a fair division of their assets. He said he also wants to change back his last name after adopting his husband’s.
When the couple tried to obtain a settlement agreement — common among same-sex couples that separate and divide assets in Texas — J.B. and his husband were advised that because they’re married in another state, they need a divorce instead.
If the couple is unable to obtain a divorce in Texas, it could lead to a host of legal complications down the road, according to Kenneth D. Upton Jr., a senior staff attorney in the Dallas office of Lambda Legal, the national LGBT civil rights organization. Upton said the couple’s intact Massachusetts marriage could affect everything from income taxes and estates to Social Security benefits.
Upton was among LGBT legal experts who warned same-sex couples from Texas against traveling to California to get married last year, in part because they wouldn’t be able to get divorced.
But Upton said he anticipates more and more cases like J.B.’s, especially since the legalization of same-sex marriage in any state may prompt gay and lesbian couples to wed prematurely.
Upton has said J.B.’s case is also unlikely to benefit LGBT equality, because it could result in an unfavorable legal precedent, given the conservative makeup of Texas appellate courts. Same-sex couples from Texas have been advised not to wed in other states with the intention of filing lawsuits seeking to have their marriages recognized here.
The danger, Upton said, is that Texas’ constitutional amendment banning same-sex marriage will be interpreted broadly.
“In the case of Texas, they haven’t done that [interpreted it] yet, and right now I wouldn’t want them to do it,” Upton said. “I just think that from the perspective of advancing the cause, this would not be my choice of cases.” •
For updates on the case, visit www.dallasvoice.com.
This article appeared in the Dallas Voice print edition October 2, 2009.
All these right wing Bible thumpers use the Bible for hate! I’m sure they will be judged for that.
People against Marriage Equality do not base their public statements on facts either from science or the bible. It is a repeat of the time the Vatican was condemning Galileo, because they insisted that Galileo was going against the bible that it is the sun that revolves around the earth. Therefore, the only position left for being against gay rights or gay marriage is for personal reasons. Because researchers have clearly shown us that components of human sexuality are on continuums. This means that nearly everyone is a mixture of LGBT components to some degree, the variation on this are likely as complex as DNA.
With more and more people having “come out†in many professions, from various backgrounds, prime ministers to major football sport figures, plus the overwhelming abundance of allies coming out in support of LGBT people, there are fewer people in the closet, now days. This means it resonates more quickly when someone is closeted about his or her sexual orientation or gender identity. However, instead of resisting publicly by regressing to irrational fears, name-calling and making ignorant statements, it is best to come to terms with one’s own individual sexual orientation and gender identity before facing the public.
Marriage Equality – it must be remember that the importance and meaning of marriage is more than procreation. Two people pledging their love to each other is not just for themselves, because that is not marriage. By being in love, two become one and they are better equip to be the best for everyone in world their families, friends, co-workers and beyond. In this way all marriages are contributing to the procreation of children by their enriching the social environment that children will be born into. I think that love; true love like energy is never lost, a bit like Einstein, maybe.
The truth will set us free – not ignorance and fear.
Fr. Marty Kurylowicz
if a gay person pays taxes we should have the rights as anyone. When is our government going to realize that we’re here to stay. If the bible speaks against being gay why does our courts allow divorce for anyone?
While we are on the Bible: GOD is an artist. It states this at the very begining of the Bible. GOD created the Heavens and the Earth and everything in it. As a gay Texas artist, it will be a joy to be judged by God. It is judgemental religious fanatics that God is not all the impressed with. And by the way: When told that God created Adam and Eve and not Adam and Steve, just say “That’s true, there wasn’t much of a choice and that you are pro choice.”
Gene Elder, The HAPPY Foundation, San Antonio, Texas, by the Alamo
Boston Wedding, Texas Devorce
Welllllll, if this doesn’t sound like a country western song, then I don’t know what does. Gene Elder, HAPPY Foundation
San Antonio
Boston Wedding, Texas Devorce
Welllllll, if this doesn’t sound like a country western song, then I don’t know what does. Gene Elder, HAPPY Foundation
San Antonio
Judgment is coming. These days are similar to the days of Lot. The gays have to have it their way come hell or high water (literally). Lot lived among them, he “tolerated” them, he even offered up his own daughter in a vain attempt to appease them. But the all powerful One was not pleased with that situation, and He brought judgment in due time. Fortunately, for Lot and most of his family, he and a select few were spared the horrific punishment that came. My hope is that I and members of my family will be in that number who are spared. Only by His grace will we spared.
Why is Ken Upton always so pessimistic? This is huge for the GLBT community!
Is he just flat out jealous he didn’t get to represent the couple in this case? Sure sounds like it!
Quit quoting him Dallas Voice!
Right on, Disgusted American.
People with Tom’s view will never understand until they are treated this way and still pay school taxes to educate the children of short-sighted parents; pay hospital taxes, only to be denied the right to visit a loving partner; go through hell and high water to make critical, legal decisions when a loved one is incapacitated or lost.
To Tom: How would same-sex marriages personally affect you so much to where you feel compelled to grace Dallas Voice readers with your point of view? Perhaps we should VOTE to strip heterosexual couples of their right to divorce, if the sanctity of marriage is such a high priority.
Then again… some people only exist to piss in other people’s milk, and I’m certain you’re one of them.
This is really interesting because what is a couple to do if they are married in one state and then not allowed to get a divorce in another? Is it incumbent upon Massachusetts to grant divorces to couples who have moved out of state, or will states like Texas have to grant divorces to same sex married couples who live in their state? We can’t possibly force gay couples to remain married just because they moved to a different state, can we?
What I want to know is: did she toss his best sharkskin suit out on the lawn on some dog dirt?
Bravo Judge Callahan! It’s good to see someone with common sense pronounce on this question in court. I personally know a Dallas area gay couple, married legally in Canada, who have split since then, but whose legal status (and that of their estate) is still up in the air because of this local law.
In what way is a ban of same sex marriage unconstitutional? If the ban of any compulsion is declared unconstitutional because it interferes with someone’s pursuit of happiness, then how does this society prohibit the legal enfranchisement of incest, bestiality or any other compulsion? The “gay gene” is still merely a hypothesis. However, what if there is a genetic predisposition to incest or bestiality. Do we then declare such “needs” normal and allow its protagonists to marry?
Finally – a judge with the COURAGE to stand against bigotry!
Somehow I suspect Tom’s Tune would be different if it was one of his rights limited by the US Constitution..like if HE were not allowed to be divorced in the state where he was not married!
Further astounded by Perry and Hutchinson seizing the opportunity to use this issue for their own gain on the campaign trail.
And does anyone really GET that Attorney General will be spending Texas resources and our tax dollars to fight this issue?
THIS is what our govening officials view as vitial to address? Hello?
Hey TOM …no#1 STFU! no#2….when can we as a society get to VOTE on your RIGHTS? no#3 How about we compare your heterosexual marriage to marrying an animal,or pedophelia? Where do you Buy-Bull beatin,righties get off…? You’re all for keepin’ that bad gov’ment out of your lives…except when it comes to the lives to LAW Abiding,Tax paying LGBT Americans….GTFU amd STFU!
I for one am glad that a Texas judge(Democratic) has decided to take it upon themselves to grant a divorce to a sam sex couple. As far as AG Abbot(republican) goes and Gov. Perry(also a republican) can shove their hate so far up their bums even the best surgeon (who should be a republican) can’t remove it. I see this as hope for our commmunity, we’ve got something to look forward to that will benefit us. Gov. Perry and AG Abbot clearly are being discrimitive towards our GLBT community, and not wanting us “GLBT” to have EQUAL rights here in the state of TEXAS. Simply put, if we have to go out of state just to get married and pay that state, why on earth would Texas not want to grant a same sex divorce putting the money in it’s front pocket? As far as the “Haters” and the ones who think that our GLBT community doesn’t have rights, GFU’s. I plan on marrying my partner next year and I think I have that GOD GIVEN RIGHT to if the day comes to divorce wherever the H*** I want to. I pay taxes.