September 1, 2010: Dallas gay couple's right to divorce rejected

by Jeffrey Cottrill

DALLAS -- While California legislature continues to flip back and forth on Proposition 8, a different kind of controversy over same-sex marriage is happening over in Texas. There, a male couple who had married in Massachusetts, after receiving permission to divorce in October, had that right snatched away from them yesterday.

The Dallas-based couple, named in court records and media only as J.B. and H.B., decided to divorce in January 2009 after less than three years of marriage. They cited "discord or conflict of personalities" in their divorce filing. However, as Massachusetts family law grants divorces only to couples living within the state, they had to try to make their split official in Texas, which does not recognize same-sex marriage.

Family District Court judge Tena Callahan ruled that the couple could divorce last October 1, claiming that Texas' prohibition of gay marriage violated the 14th Amendment to the U.S. Constitution. But Texas Attorney General Greg Abbott appealed Judge Callahan's original decision, claiming that Texas shouldn't be able to divorce a gay couple if it doesn't legally recognize gay marriage. Yesterday, almost 11 months after the decision, the Fifth District Court of Appeals overturned it.

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"We hold that Texas district courts do not have subject-matter jurisdiction to hear a same-sex divorce case," Judge Kerry P. Fitzgerald wrote in the court decision.

Peter Schulte, the divorce lawyer representing J.B., protested the reversal. "We are disappointed with the justices' decision, but we respect the court and process and are evaluating our options about moving forward," Schulte told the Dallas Morning News today.

But Abbott praised the ruling. "Because the Constitution and laws of the state of Texas define marriage as the union of one man and one woman," Abbott said in a press statement after the court's decision, "the court correctly ruled that Texas courts do not have authority to grant a same-sex divorce."

The couple is reportedly going to appeal to a higher court, possibly the Texas Supreme Court. "We think the holding is not constitutional as we argued to the court," Austin divorce attorney Jody Scheske, who argued for J.B.'s case in the appeal, told the Morning News, "and we look forward to further appeal.

"Eventually, all married couples in the state of Texas will have equal access to divorce. Unfortunately, this decision denies that to one segment of society, same-sex couples."

J.B. and H.B., who married in 2006 and relocated to Dallas the following year, could still theoretically get their divorce by regaining legal residency in Massachusetts.

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