The divorce petition Peter Schulte filed in a Dallas County family court on Jan. 21 would be a simple, no-fault proceeding, but for the fact that his client wants to end his marriage to a person of the same sex.
Because it’s the first time a gay couple legally married in another state has filed for a divorce in Texas, Schulte, a partner in Dallas’ Schulte & Apgar, is well aware that his client’s petition likely won’t stay in the 302nd District Court for long.
Three experts say the divorce petition likely will end up in an appellate fight that pits Texas’ 2003 Defense of Marriage Act, in which the Legislature decreed that the state only recognizes marriages between a man and a woman, against the full faith and credit clause of the U.S. Constitution, which requires states to respect the laws of other states.
Schulte’s client J.B., who is being identified by his initials because he has not disclosed his sexual orientation to his employers, was legally married in Massachusetts in 2006. The couple moved from Boston to Dallas eight months ago and decided to end their marriage, Schulte says.
The Texas Office of the Attorney General intervened in In the Matter of Marriage of J.B and H.B. on Jan. 28 to uphold Texas’ Defense of Marriage Act.
“In the State of Texas, marriage is — and has always been — a union between one man and one woman. 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,” Abbott writes in a statement.
“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, therefore the Office of the Attorney General will intervene to defend Texas law — and the will of Texas voters,” Abbott concludes.
Abbott did not return a telephone call seeking comment before presstime on Jan. 29.
Schulte says he is disappointed in Abbott’s decision to intervene in the case. The petition is not meant to be a backhanded attempt to force Texas to recognize gay marriage, he says.
“They want to be legally protected. Texas recognizes domestic violence for same-sex couples. And I fully expect that if we don’t get this divorce done, and one of them decides to get remarried, they could possibly get prosecuted for bigamy,” Schulte says. “In other words, the state of Texas is going to have to decide. They can’t have their cake and eat it, too.”
But first, 302nd District Judge Tena Callahan will have to decide whether she has jurisdiction to hear the case, Schulte says.
Schulte says he’s not convinced the trial judge will deny hearing the petition. Callahan will want to hear arguments about whether judges have jurisdiction. At that point, if the divorce petition is granted, as far as the parties are concerned, it’s over, Schulte says. “Then it’s up to the attorney general’s office” to decide whether to appeal.
Full Faith and Credit
Mitchell Katine, a partner in Houston’s Katine & Nechman, says the divorce petition likely will wind up as a constitutional appellate fight. He believes the landmark U.S. Supreme Court ruling he won for his clients in 2003′s Lawrence v. Texas will give the couple seeking a divorce some protection.
In Lawrence the high court overturned Texas’ sodomy law by holding that sexual intimacy between two consenting adults is part of the liberty protected by substantive due process under the 14th Amendment.
“Because of Lawrence v. Texas we know now that gay and lesbian people have some level of constitutional protection. That’s the main point,” Katine says.
Katine believes J.B. and H.B. eventually will prevail in their effort to get their divorce heard in a Texas court. The Constitution’s full faith and credit clause will assure that, he says. A federal court already has forced a state to recognize the rights of gay couples in the area of adoption because of that clause, Katine says.
On Dec. 22, 2008, U.S. District Judge Jay Zainey of the Eastern District of Louisiana ruled in Adar v. Smith thatLouisiana must issue an amended birth certificate for a child adopted in Louisiana by a California gay couple that identifies them as the child’s parents, even though Louisiana does not recognize gay adoptions.
“I see a lot of similarities in that case to this case,” Katine says of Smith and H.B . “And it’s really going to need to be decided like adoptions” because both adoptions and marriage need to be recognized between states.
“The question is going to be whether the full faith and credit clause overrules state laws and even federal laws,” Katine says. “And I think the answer will be yes, it will.”
Ken Emanuelson, of counsel with Dallas’ Danamraj Law Group and former executive director of the Dallas Lawyers’ Chapter of the Federalist Society for Law and Public Policy Studies, believes it is best if courts do not weigh in on social questions such as gay marriage and divorce.
“It is my own personal opinion that it is best for the long-term health of our society and our system of laws that these sorts of social questions be handled via the democratic process rather than through decisions by individual judges,” Emanuelson says. “Social change by order of a friendly judge is viewed by some as a fast track to their preferred outcome, and in many cases, it can be. Unfortunately, the very real downside of this strategy is that resolution of these issues by a judge’s order shuts off the vigorous and generally healthy, though often painful, debate that accompanies a political struggle.”
Toby Goodman, a partner in Arlington’s Goodman & Clark and a former Republican state representative, foresaw problems the Defense of Marriage Act would cause for gay couples legally married in another state who move to Texas. Goodman tried to amend the bill so Texas could dissolve same-sex marriages authorized by another state, to no avail.
“It was just a matter of time,” says Goodman, who practices family law, of the problem the Texas Defense of Marriage Act creates for couples married out of state.
Short of filing a civil suit in state district court under the Texas Uniform Partnership Act (UPA), which is geared toward businesses that break up, the gay couple seeking a divorce in Dallas is stuck, Goodman says.
The UPA is not geared for a family law situation, Goodman says. “Under the UPA you take the partnerships and sell it based on the ownership of the partners,” he says.
Goodman says the couple may not be able to avail themselves of a Massachusetts court for a divorce because they’ve lived in Texas for more than six months. Texas and Massachusetts state laws require that a couple be a resident of the state for more than six months before they can file for a divorce, he says.
“They have no place to go,” says Goodman, who predicts the couple eventually will have to file a federal suit to get their divorce petition heard in a state court in Texas.
“They’re going to have to go federal and challenge it on full faith and credit,” Goodman says.
Charles W. “Rocky” Rhodes, a professor who teaches constitutional law at South Texas College of Law, doesn’t believe the couple will prevail in a federal suit.
“I think right now the AG’s office is going to win the battle. Most of the challenges based on full faith and credit to a state’s refusal to grant a divorce to a same-sex couple have all failed to this juncture.”
“A state, if it wanted to, could extend recognition to a same-sex divorce,” Rhodes says. “But there really isn’t, at this point, any law under full faith and credit to compel them to do so.”