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Texas divorce ruling challenges DOMA, state constitution
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Texas divorce ruling challenges DOMA, state constitution

by Mike Andrew - SGN Staff Writer

A Texas judge challenged the one-man-one-woman definition of marriage enshrined in the Texas state constitution and called the federal Defense of Marriage Act (DOMA) into question with a controversial ruling on Thursday, October 1.

Judge Tena Callahan of the Dallas County 302nd Family District Court ruled that she had jurisdiction to grant a divorce to a Gay couple who had been legally married in Massachusetts but currently reside in Texas.

Texas State Attorney General Greg Abbott had intervened in the case, arguing that Texas courts may not grant divorces to same-sex couples because the state does not recognize same-sex marriages.

Nevertheless, Judge Callahan ruled that the court "has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction."

The Gay couple, who have been publicly identified only as JB and HB, were married in 2006 when they resided in Massachusetts, but subsequently settled in Texas.

JB, who initiated the divorce, said he and his husband jointly own a home in Dallas, but stopped living together in November 2008. He said they have no children and have agreed to a fair division of their assets. He also wants to change back to his original surname after adopting his husband's.

The couple had originally filed for a "settlement agreement," a common legal device among same-sex couples that separate and divide assets in Texas. However, they were advised that because they were legally married in another state, they needed to obtain a divorce instead.

They can not be divorced in Massachusetts because, like many states, Massachusetts has a residency requirement to file for divorce.

While Callahan's ruling only took up one page, it may have very broad implications, because in it she states explicitly that Texas law violates the equal protection clause of the 14th Amendment to the US Constitution.

The equal protection clause is the basis for Gill v. OPM - a lawsuit filed by GLAD (Gay & Lesbian Advocates & Defenders) in Massachusetts seeking to overturn the federal DOMA.

"That's what's significant," said Dallas attorney Peter A. Schulte, who represents JB. "It's the first time in Texas that a court has acknowledged that there is an issue with the way our statute and our constitution is drafted when it comes to same-sex couples. That is huge for the community."

Also on October 1, Texas Attorney General Abbott filed an accelerated appeal, which takes precedence over other matters before the court, and issued a public statement against Callahan's ruling.

"The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman," Abbott said. "Today's ruling purports to strike down that constitutional definition - despite the fact that it was recently adopted by 75 percent of Texas voters."

Texas Governor Rick Perry and his opponent for the Republican party's gubernatorial nomination, Sen. Kay Bailey Hutchison (R-TX) both issued statements supporting Abbott's appeal and opposing marriage equality.

In a statement to the Fort Worth Star-Telegram newspaper, JB said he is "saddened by our political leaders who seize this case as an opportunity to further their own political careers."

"Our only desire is for appropriate legal protections as provided by law and to quietly and peacefully move on with our lives," he said.

Kenneth D. Upton, Jr, a senior staff attorney with Lambda Legal's Dallas office, told the Dallas Voice newspaper he worried that the case might result in an unfavorable legal precedent, given the conservative leanings of Texas appellate courts.

Upton had previously warned same-sex couples from Texas not to travel to California to get married last year, in part because they would not be able to get divorced if and when they wished.

This is not the first time the issue has come up in Texas. In March 2003, a Texas court became the first one outside Vermont to grant the dissolution of a civil union. The judge reversed himself after a challenge by Abbott.

Vermont has since done away with civil unions and gives full marriage rights to same-sex couples.

An Indiana judge last month denied the divorce of two women married in Canada, ruling that it would violate Indiana law. In 2007 the Rhode Island Supreme Court rejected the divorce of a Lesbian couple married in Massachusetts. Neither Indiana nor Rhode Island allow same-sex marriage.

Same-sex marriages - and divorces - are currently legal in Connecticut, Iowa, Massachusetts, and Vermont. New Hampshire will permit same-sex marriage beginning January 1, 2010. Marriage equality was adopted in Maine, but a challenge will be on the ballot in November.

Legal same-sex marriages were performed in California between June 16 and November 4, 2008 and remain valid in spite of Prop 8. According to the California Supreme Court, "all the rules of marriage apply, including divorce."

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