Neff: In Texas, only gay marriage is til death do they part

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.

Neff: Prognosis not good for gay health reforms

I’m in sunny Florida, but I’m coughing and sneezing and I have the watery, bleary, weary eyes of so many other sufferers in the cold-and-flu season.

My health is on my mind.

But your health is on my mind too.

And our healthcare and U.S. healthcare reform has been on my mind for …

Lisa Neff: Why LGBTs shouldn’t donate to the Salvation Army

Neff: Bigger than the moonwalk

I remember the summer of 1969.

I was five years old and bound for kindergarten in the fall.

For my birthday in May of that year I received my first wooden Louisville Slugger bat and a Franklin baseball glove.

By June I had suffered my first significant sports injury. I was catching a …

Gates Plan May Be Beginning of the End of ‘Don’t Ask, Don’t Tell’

Pentagon Studies Ways to Relax Enforcement as First Step; Impact on Troops Would be Minimal

SANTA BARBARA, Calif. — In the wake of yesterday’s unexpected Pentagon announcement about gays in the military, experts say the “don’t ask, don’t tell” policy may be on the brink of irreversible change that would speed up its demise. After speaking with President Obama last week, Defense Secretary Robert Gates has asked military lawyers to explore how to modify enforcement of the policy in ways that are “more flexible until the law is changed.” The President Monday reiterated his intention to end discrimination against gay troops, saying he is working with Congress and the military to do so.

Christopher Neff, political director of the Palm Center, said the remarks by Secretary Gates marked the first time the Defense Secretary has made clear that the Pentagon is onboard with the President’s determination to lift the ban. “‘Don’t ask, don’t tell’ is a package — both a law and a policy — that hasn’t been penetrated for fifteen years,” Neff said. “This is a crack in humpty dumpty, and it gets the ball rolling for a political solution since it gives cover to lawmakers who have been waiting for a nod from the Pentagon.”

Neff said that even a small change in how “don’t ask, don’t tell” is enforced could represent a seismic political shift, even if it does not have a substantial operational impact on most gay troops, who would still be subject to discharge. If the military stops applying certain provisions of the policy, as Gates says it is considering, it would send a signal to Congress about the inevitability of change. “That’s why executive action is the key to unlocking the political stalemate,” said Neff. “Even the statements themselves, although they do await follow-up action, have changed the political landscape.”

Last month, the Palm Center published a report which outlined several legal and political rationales for executive branch discretion in regulating, and even halting, discharges provided for by federal statute. One of those rationales is closely linked to the new review announced by Secretary Gates. According to the Palm Center study, “the ‘don’t ask, don’t tell’ policy itself, as codified by Congress, also grants authority to the Department of Defense to determine the procedures under which investigations, separation proceedings, and other personnel actions under the authority of 10 U.S.C. Section 654 will be carried out … The Secretary of Defense has discretion to determine the specific manner in which ‘don’t ask, don’t tell’ will be implemented.” Prior to the release of the Palm Center’s report, most observers had assumed that only Congress or the federal courts end the firings of gay troops.

Amidst mounting public pressure, White House press secretary Robert Gibbs said this week that he thought “don’t ask, don’t tell” would be repealed by the end of the President’s first term. Nathaniel Frank, senior research fellow at the Palm Center, said this week’s developments were politically significant. “Serious discussions have been launched by the President himself,” said Frank. “Obama has said this is a failed policy that harms national security, so these measures are not just fixes, but may be the beginning of the end.” Frank added that any regulatory changes that fall short of halting all discharges will be “window-dressing,” but he focused on the implications for further political change. “This means the hot potato party may finally be over, as the President understands where the buck stops.”

In the wake of this week’s developments, the Palm Center announced that it is preparing a more extensive legal analysis of administrative options for relaxing the application of certain provisions of “don’t ask, don’t tell.” Neff said that the Defense Department should invite public input as the rules are re-drafted, which would be consistent with past processes when military regulations have been

changed. “This review should be no different,” he said.

Organizations and individuals who have endorsed or endorsed consideration of the use of executive action based on the legal theories outlined in the Palm Center’s study include Secretary Gates, 77 members of Congress, the New York Times editorial page, Center for American Progress, Human Rights Campaign, Servicemembers Legal Defense Network, Hendrik Hertzberg of the New Yorker, the political consultant Robert Shrum, and former White House aide Richard Socarides.

The Palm Center is a research institute at the University of California, Santa Barbara. The Center uses rigorous social science to inform public discussions of controversial social issues, enabling policy outcomes to be informed more by evidence than by emotion. Its data-driven approach is premised on the notion that the public makes wise choices on social issues when high-quality information is available. For more information, visit www.palmcenter.ucsb.edu.