Neff: In Texas, only gay marriage is til death do they part
Posted on April 28, 2010
Filed Under 365Gay, News
Spouses can’t always take that bit about “till death do us part” literally.
And judges and lawyers don’t always take that bit about “till death do us part” literally either. Some dedicate their workdays dissolving such vows.
Yet in some states that don’t recognize same-sex marriages, same-sex marriages could last till death do they part.
Oh, these funny times.
A Dallas man, identified only as J.B. in court papers and the press, is trying to divorce a man he married four years ago in Massachusetts and separated from — amicably enough — two years ago.
J.B. was winning his case for divorce before District Judge Tena Callahan, when the Texas Attorney General tried to intervene and stop the process. It seems that because the state of Texas does not recognize same-sex marriages, the court shouldn’t divorce the two men, according to the AG.
Callahan ruled against the AG, which appealed her decision.
“My client is a married man and he needs a divorce. But for the actions of the attorney general, there would already be one less same-sex marriage in Texas,” attorney Jody Scheske told a three-judge appeals court panel in a hearing last week.
Oh, these funny times.
“The parties lack standing to file a divorce because they are not married. If you are not party to a marriage, you cannot file for a divorce,” an assistant Texas solicitor general argued last week before the federal appeals court.
The assistant Texas solicitor general said, the court should “void” the union not divorce the men.
An annulment, then, is Texas’ preferred alternative to a gay couple’s divorce.
Oh, these funny times.
The stakes in this Texas case are considerable, because in finding that she has standing to hear the gay man’s request for a divorce, Callahan also found that Texas’ 2005 constitutional amendment that defines marriage exclusively as a union between a man and a woman violates the right to equal protection and therefore violates the 14th Amendment to the U.S. Constitution.
Had the Texas Attorney General not tried to intervene and block the court from hearing the divorce case, the district court judge might not have deemed the anti-gay amendment unconstitutional. We don’t know really. Callahan might have taken up the constitutional issue, or she simply might have granted the divorce.
Attorneys for J.B. say they didn’t want a constitutional fight or a federal case — just a divorce for their client.
“My client’s very private matter has become a public spectacle,” Scheske told the court last week.
Oh, these funny times.
J.B., seeking to end his marriage, is at the forefront of a legal dispute that could tear down a ban against gay marriage in Texas.
And opponents of gay marriage are worried, which is why the Plano-based right-wing Liberty Institute argued alongside the attorney general against what it called “judicial activism at it’s worst.”
Opposing J.B.’s divorce, Liberty Institute attorney Hiram Sasser said a gay divorce is an attack on same-sex marriage.
Oh, these funny times.
And Sasser, who said he represented the two authors of the anti-gay amendment that 76 percent of Texas voters supported in 2005, cited Bill Clinton in his defense of the Texas ban and his opposition to the gay couple’s divorce.
Clinton signed the federal Defense of Marriage Act that allowed states to refuse to honor another state’s same-sex marriage and defined marriage at the federal level as the union of one man and one woman.
“I think President Clinton said it best when he said we have to honor the decisions of the states,” Sasser said.
The former president, however, has said that his position on same-sex marriage is evolved and he “didn’t like signing DOMA.”
Oh, these funny times.
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More on the Texas same-sex divorce
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