Texas Battle on Gay Marriage Looms

y JAMES C. McKINLEY Jr.

Published: October 2, 2009

HOUSTON — A judge in Texas paved the way for a court battle over the state’s ban on same-sex marriage when she ruled this week that two men married in another state can get divorced in Dallas.

Donna McWilliam/Associated Press

Attorney General Greg Abbott opposes same-sex marriage.

The state attorney general said Friday that he would appeal the decision, even as gay rights advocates applauded the judge, Tena Callahan of Family District Court, for declaring that the state’s four-year-old ban on same-sex marriages and civil unions violated the right to equal protection under the 14th Amendment.

The case highlights a subtle way gay men and lesbians often face complications when it comes to marriage: gay couples who have managed to marry in the few states where it is legal have trouble divorcing and dividing their property if they move to a state where it is not.

In the last two years, courts in Indiana, Oklahoma and Rhode Island, for instance, have denied divorces to same-sex couples who had been married in other jurisdictions. All three have laws against gay nuptials. Courts in a few other states, notably New York and New Jersey, have allowed divorces to go forward for gay men and lesbians married in other states, even though they do not allow same-sex marriages.

The case in Texas involves two men who married in Cambridge, Mass., in 2006, then moved to Dallas the following year when one of them was transferred by his company, a lawyer for the couple, Peter A. Schulte, said.

The men decided to divorce in January and reached an amicable agreement about splitting up their house, cars and other property. But they had to file for divorce in Texas, because, like most other states, Massachusetts allows only residents to sue for divorce, Mr. Schulte said.

The Texas attorney general, Greg Abbott, a Republican, took the unusual step of intervening in the divorce proceeding last January. Mr. Abbott asserted that the state court could not dissolve the marriage because the Texas Constitution, as amended in 2005, did not recognize any marriage unless it was between a man and a woman.

Mr. Abbott had taken a similar position in 2003, when he won the reversal of a decision by a Texas court to dissolve a civil union between homosexuals.

But Mr. Schulte said his clients, who were identified in court documents as J.B. and H.B., had not sought to challenge the state’s ban on same-sex marriage. They were asking only to split up without having to return to Cambridge, as a heterosexual couple would have been able to do.

“It’s not fair to make them uproot their lives, move back to another state, wait a year and then file for divorce,” Mr. Schulte said.

The men’s private dispute has suddenly been sucked into the culture wars in Texas. Responding to the ruling, Mr. Abbott vowed he would “defend the traditional definition of marriage that was approved by the Texas voters.”

Gov. Rick Perry, a Republican with strong support among religious conservatives, said the ruling on Thursday by Judge Callahan “is flawed and should be appealed” and then expressed confidence that “traditional marriage will be upheld in our state.”

Some gay rights advocates said the governor and Mr. Abbott were pandering to the conservative wing of their party in the run-up to next year’s statewide elections.

“Even in light of the constitutional amendment in Texas, her ruling is not going to create a marriage — she’s dissolving a marriage,” said Patti Fink, the president of the Dallas Gay and Lesbian Alliance. “Why there would be an objection to that from the attorney general is beyond me.”

Few people expect the Texas appellate courts, which are dominated by conservative judges, to overturn the state’s ban on same-sex marriage. But some advocates for gay rights hold out a slim hope that the matter may eventually come before the United States Supreme Court. The state’s amendment banning same-sex marriage is one of the broadest in the country.

“The bottom line is, just as in the ’50s, when the Supreme Court of the United States had enough guts to say no more on segregation, this present Supreme Court ought to do the same thing on this issue,” said Jonathan D. F. Nelson, a Fort Worth lawyer.

Besides Massachusetts, only Connecticut, Iowa and Vermont allow same-sex marriages. In New Hampshire, same-sex marriages become legal in January. Maine will hold a referendum on the question this fall. The rest of the states either have laws against same-sex marriage or interpret their laws as forbidding them. Of those, 29 states have enacted constitutional amendments defining marriage as between a man and a woman.