Appeals court denies petition to expedite hearing while state Supreme Court drags feet on same-sex divorce ruling
NOT SO FAST | Plano couple Vic Holmes, far left, and Mark Phariss and Austin couple Cleopatra DeLeon and Nicole Dimetman are shown in federal San Antonio court in February. Their marriage equality case won’t receive expedited hearings at the appeals level. (Photo courtesy of Randy Bear)
As judges continue to rule in state after state that marriage amendments barring same-sex unions are unconstitutional and couples begin to wed, eyes turn to LGBT Texans eagerly awaiting their turn.
In February, a federal San Antonio judge ruled the state’s amendment unconstitutional but stayed his decision after a hearing for a temporary injunction to allow one of the couples in the case to marry. The state appealed the ruling to the 5th Circuit Court of Appeals.
That court declined a petition to expedite the hearing last week, meaning it could take months before the case moves forward.
Based on the ruling, the state could appeal to the U.S. Supreme Court, or the case would head back to the San Antonio court for a final ruling in the case.
The other two Texas federal marriage cases are based in Austin. The state requested those be postponed pending the appeals court ruling in the other case. The Austin judge has yet to rule on the request. Those cases are further complicated because the plaintiffs in one of the cases, Chris McNosky and Sven Stricker, who are representing themselves, came out as straight in a recent interview with Dallas Voice.
The two friends are suing based solely on sex discrimination and said they never lied about being a couple, but it was implied throughout the case, which was filed in July and was the first Texas marriage case filed by a couple. They expect their case to move forward. As to whether the state will try to derail it based on standing is not clear. Representatives with Texas Attorney General Greg Abbott’s office did not respond to several requests for comment.
Meanwhile in state courts, same-sex divorce cases are moving forward. A San Antonio lesbian couple filed for divorce in March. The state tried to intervene, but a federal judge ruled that he cannot interfere. The couple has a child and wants the custody issue determined during court proceedings. Then in mid-May, a Tarrant County lesbian couple followed suit and filed to dissolve their union.
Two same-sex divorce cases are currently being considered at the Texas Supreme Court. Hearings took place in November with a ruling expected in early summer before the court recess. But Jody Scheske, the couples’ attorney, said Texas doesn’t have a deadline for justices to issue a ruling. A controversial case they ruled on a few years ago took about four years before a decision was issued.
“I have no idea when the Supreme Court is going to decide,” he said. “For either difficult or complicated cases or for whatever reason, cases they don’t want to decide, they can wait.”
The cases involve an Austin lesbian couple who were granted a divorce before the state appealed the decision, and a Dallas couple trying to obtain a divorce.
The court sat on the request for review for years before requesting briefs in 2011 and again last year after the federal Defense of Marriage Act was struck down.
Scheske said the Austin couple, who have a child, have moved on with their lives, but the Dallas couple, who have lived apart since 2008, are still waiting. He said the court needs to recognize that LGBT couples are getting married and returning or moving to Texas, and with the only option to dissolve their unions in their home state, the state will eventually need to allow same-sex divorces.
“Texas residents can only file for divorce in Texas, so we’re going to continue to see married same-sex couples have to end their marriages in Texas,” he said. “And the fact that our Supreme Court has not issued a ruling is very frustrating for the judges and the litigants because there is no other place to go. … We know they’re getting married, we know some of the marriages are going to fail, and we know that you can only file for divorce in Texas. So this problem will continue to increase.”
Of course if the federal court case results in the state law being overturned, it will strike down the entire law, granting recognition of out-of-state marriages and allowing divorce.
While some gay couples are trying to dissolve their marriages, transgender Texans may have to fight to keep their right to wed. Trans widow Nikki Araguz won her battle in February to have her marriage recognized to her deceased husband.
The 13th District Court of Appeals in Corpus Christi issued the opinion that the state must recognize marriages of trans people who’ve had gender reassignment surgery and marry people of the opposite sex.
It overturned the 1999 Texas Court of Appeals decision in Littleton v. Prange, which found that someone’s birth sex would always be his or her official sex.
The state has filed an extension to submit a review to the Texas Supreme Court. The deadline to file the request is June 30.
Kent Rutter, Araguz’s attorney, said he doesn’t expect the court to hear the appeal, especially because an affidavit of a sex change can be used to obtain a marriage license.
This article appeared in the Dallas Voice print edition May 30, 2014.