Gay-rights attorney fears issue will go to state Supreme Court
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| Peter A. Schulte, left, and Kenneth D. Upton Jr., right. |
For J.B., it’s a bitter irony.
While the vast majority of judges and politicians in Texas oppose same-sex marriage, they also may be unwilling to grant J.B. and his husband a divorce from their Massachusetts nuptials.
“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., whose initials are being used in this article to protect his anonymity because his sexual orientation isn’t known to his employer, filed a petition for divorce Wednesday, Jan. 21 in Dallas County’s 302nd District Court.
J.B.’s attorney, Peter A. Schulte, said he believes it’s the first same-sex divorce petition ever filed in Texas. J.B., 45, of Dallas, and his husband married in 2006 when they lived in Massachusetts. He said they’ve been together for 11 years.
The petition sets up a legal showdown over whether Texas courts can grant divorces to same-sex couples married in other states. And it may be evidence of a growing problem nationwide for couples from out of state who’ve wed in one of three states where same-sex marriage has been legalized.
Texas, which has a constitutional amendment defining marriage as the union between a man and a woman, also doesn’t recognize same-sex marriages from other states. And in 2003, the state Attorney General declared that a same-sex couple from Beaumont couldn’t use a Texas court to dissolve the civil union they obtained in Vermont.
But Schulte argued that a marriage is not the same as a civil union. He also noted that J.B. can’t end the marriage in Massachusetts or elsewhere because all 50 states have a residency requirement for divorce.
Opposite-sex married couples routinely obtain divorces in states other than where they were married.
“We can maybe understand that the state [of Texas] doesn’t recognize the right for same-sex couples to marry — fair enough,” Schulte said. “But if other states recognize the right, there has to be a way for those couples to dissolve their relationship under the laws of any state they choose to live in. This is a fundamental rights issue for gay couples in this state. Gay couples should not be restricted on what state they live in.”
In response to an inquiry from Dallas Voice, Texas Attorney General Greg Abbott issued a statement late Thursday, Jan. 22 confirming that he plans to oppose the divorce.
“In the State of Texas, marriage is — and has always been — a union between one man and one woman,” Abbott said in the statement. “To prevent other states from imposing their values on this state, Texas voters overwhelmingly approved a constitutional amendment specifically defining marriage as a union of one man and one woman. 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.
“These two men are seeking a court ruling that challenges the Texas Constitution, so the Office of the Attorney General will intervene to defend Texas law — and the will of Texas voters.”
J.B. and his husband, 44, tied the knot on Sept. 22, 2006 in Massachusetts, according to a marriage license attached to his petition. The petition states that they stopped living together on Nov. 28, 2008.
J.B. said he doesn’t expect his husband to contest the divorce. They own a house together in Dallas, but they have no children. J.B. said they’ve agreed to a fair division of their assets, but they need a judge to sign off on it. 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.
“It’s like Texas wants to have their cake and eat it, too,” J.B. said.
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.
“We’ve had this happen with Canadian marriages,” Upton said. “It creates all kinds of headaches. … I don’t think we know the full reach of the problem we’re going to see.”
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.
“One of the things we’ve found is that there is an increasing number of gay people who get married, who get divorced fairly quickly,” Upton said. “They all of a sudden could get married and might lose the right to get married. … That puts undue pressure on the relationship.”
Upton said J.B.’s case is also unlikely to benefit LGBT equality, because it could result in an unfavorable legal precedent. 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.
Upton said it’s possible the district court judge — in this case, Tena Callahan — will grant J.B. and his husband a divorce. But he said the case is likely to be appealed to the Texas Supreme Court and may prompt an anti-gay backlash from state legislators in Austin.
“The Supreme Court in Texas is just as conservative as can be, and the Attorney General would fight it tooth and nail,” Upton said.
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.”
Schulte insisted that J.B.’s divorce petition isn’t a “test case.”
“This is absolutely legitimate; I wouldn’t take it if it wasn’t,” Schulte said. “They need to get divorced, and they need it to happen now. They’re between a rock and a hard spot.”
J.B., meanwhile, said he has no interest in being part of what could become a media spectacle.
“There is absolutely no desire whatsoever to even be having this conversation with anyone,” J.B. said. “It is a private, personal and painful matter.”
E-mail wright@dallasvoice.com
This article appeared in the Dallas Voice print edtion January 23, 2009.