Forget Prop 8 In California. Texas Could Be The Battleground For Gay Marriage

[Obama 2012 1,714]

http://cbs11tv.com/national/texas.divrce.gays.2.1643905.html

DALLAS (AP) ― After the joy of a wedding and the adoption of a baby came arguments that couldn't be resolved, leading Angelique Naylor to file for divorce.

That left her fighting both the woman she married in Massachusetts and the state of Texas, which says a union granted in a state where same-sex marriage is legal can't be dissolved with a divorce in a state where it's not.

A judge in Austin granted the divorce, but Texas Attorney General Greg Abbott is appealing the decision. He also is appealing a divorce granted to a gay couple in Dallas, saying protecting the "traditional definition of marriage" means doing the same for divorce.

A state appeals court is scheduled to hear arguments in the Dallas case on Wednesday.

The Dallas men, who declined to be interviewed for this story and are known only as J.B. and H.B. in court filings, had an amicable separation, with no disputes on separation of property and no children involved, said attorney Peter Schulte, who represents J.B. The couple, who married in 2006 in Massachusetts and separated two years later, simply want an official divorce, Schulte said.

The drawn-out process has been frustrating for Naylor, who says she didn't file for divorce as an equal rights statement — she just wants to get on with her life.

"We didn't ask for a marriage; we simply asked for the courtesy of divorce," said Naylor, 39, of Austin, who married Sabina Daly in Massachusetts in 2004.

That year, Massachusetts became the first state to let same-sex couples tie the knot. Now, Connecticut, Iowa, New Hampshire, Vermont and the District of Columbia also allow them.

Gay and lesbian couples who turn to the courts when they break up are getting mixed results across the nation. A Pennsylvania judge last month refused to divorce two women who married in Massachusetts, while New York grants such divorces even though the state doesn't allow same-sex marriage.

"The bottom line is that same-sex couples have families and their families have the same needs and problems, but often don't have the same rights," said Jennifer Pizer, a lawyer for Lambda Legal, a national legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people.

"It really is an unenviable position that the courts have put these couples in," said Karen Loewy, an attorney at the Gay and Lesbian Advocates and Defenders.

Abbott, a Republican seeking re-election, declined to be interviewed for this story. He has argued in court filings that because the state doesn't recognize gay marriage there can be no divorce, but a gay or lesbian Texas couple may have a marriage voided. Attorneys representing such couples argue that voiding a marriage here could leave it intact in other states, creating problems for property divisions and other issues.

"OK, you're recommending voidance, but how does that work?" asked Jennifer Cochran, Naylor's attorney. "Is it only void in Texas and can you void a marriage that's valid in another state? The attorney general I feel didn't answer those questions."

In 2005, Texas voters passed a constitutional ban on same-sex marriage by a 3-to-1 margin even though state law already prohibited it. Abbott has said he is appealing the Dallas divorce ruling for two men to "defend the traditional definition of marriage that was approved by Texas voters."

Abbott disagrees with the judge in that case, who ruled in October that the same-sex marriage ban violates equal rights guaranteed by the U.S. Constitution.

Kelly Shackelford, chief counsel for the conservative Liberty Institute in Plano, called that decision "outrageous judicial activism." The institute has filed a friend of the court brief to the appeals court on behalf of the two Republican state lawmakers who co-sponsored the amendment banning gay marriage: state Rep. Warren Chisum and former state Sen. Todd Staples.

"It's a backdoor run at establishing same-sex so-called marriage against the people's vote," Shackelford said. "Once you grant the divorce, you are recognizing that there was a marriage."

Dallas divorce attorney Tom Greenwald said he's advising gay couples to wait and see how things play out in the courts.

"Getting the court of appeals to even accept the issue is a step in the right direction in getting some clarity on this," he said. "We just don't know how to treat it."

As for Naylor and Daly — the latter declined to comment — they've been trying to figure out what to do since separating in 2007 amid escalating arguments.

The couple, who had real estate-related businesses and renovated homes, toyed with the idea of one of them moving to a state where gay marriage is legal until a divorce is finalized, but that didn't seem practical.

Naylor said that eventually, she and Daly worked out a custody arrangement for their now 4 1/2-year-old son. Naylor said that when she heard about the Dallas divorce, she thought it was worth a try and filed for her own, even though several attorneys she spoke with weren't so sure.

"They said it's too up in the air, wait and see for appeals," Naylor said. "I didn't have a lot of time to wait and see."

[one...two...tree 2,762]

This is a perfect example of when a state law is insufficient. Gay marriage can and should be constitutionally protected which would put an end to the states creating such a legal mess.

[The_Dude 1,142]

http://cbs11tv.com/national/texas.divrce.gays.2.1643905.html

DALLAS (AP) ― After the joy of a wedding and the adoption of a baby came arguments that couldn't be resolved, leading Angelique Naylor to file for divorce.

That left her fighting both the woman she married in Massachusetts and the state of Texas, which says a union granted in a state where same-sex marriage is legal can't be dissolved with a divorce in a state where it's not.

A judge in Austin granted the divorce, but Texas Attorney General Greg Abbott is appealing the decision. He also is appealing a divorce granted to a gay couple in Dallas, saying protecting the "traditional definition of marriage" means doing the same for divorce.

A state appeals court is scheduled to hear arguments in the Dallas case on Wednesday.

The Dallas men, who declined to be interviewed for this story and are known only as J.B. and H.B. in court filings, had an amicable separation, with no disputes on separation of property and no children involved, said attorney Peter Schulte, who represents J.B. The couple, who married in 2006 in Massachusetts and separated two years later, simply want an official divorce, Schulte said.

The drawn-out process has been frustrating for Naylor, who says she didn't file for divorce as an equal rights statement — she just wants to get on with her life.

"We didn't ask for a marriage; we simply asked for the courtesy of divorce," said Naylor, 39, of Austin, who married Sabina Daly in Massachusetts in 2004.

That year, Massachusetts became the first state to let same-sex couples tie the knot. Now, Connecticut, Iowa, New Hampshire, Vermont and the District of Columbia also allow them.

Gay and lesbian couples who turn to the courts when they break up are getting mixed results across the nation. A Pennsylvania judge last month refused to divorce two women who married in Massachusetts, while New York grants such divorces even though the state doesn't allow same-sex marriage.

"The bottom line is that same-sex couples have families and their families have the same needs and problems, but often don't have the same rights," said Jennifer Pizer, a lawyer for Lambda Legal, a national legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people.

"It really is an unenviable position that the courts have put these couples in," said Karen Loewy, an attorney at the Gay and Lesbian Advocates and Defenders.

Abbott, a Republican seeking re-election, declined to be interviewed for this story. He has argued in court filings that because the state doesn't recognize gay marriage there can be no divorce, but a gay or lesbian Texas couple may have a marriage voided. Attorneys representing such couples argue that voiding a marriage here could leave it intact in other states, creating problems for property divisions and other issues.

"OK, you're recommending voidance, but how does that work?" asked Jennifer Cochran, Naylor's attorney. "Is it only void in Texas and can you void a marriage that's valid in another state? The attorney general I feel didn't answer those questions."

In 2005, Texas voters passed a constitutional ban on same-sex marriage by a 3-to-1 margin even though state law already prohibited it. Abbott has said he is appealing the Dallas divorce ruling for two men to "defend the traditional definition of marriage that was approved by Texas voters."

Abbott disagrees with the judge in that case, who ruled in October that the same-sex marriage ban violates equal rights guaranteed by the U.S. Constitution.

Kelly Shackelford, chief counsel for the conservative Liberty Institute in Plano, called that decision "outrageous judicial activism." The institute has filed a friend of the court brief to the appeals court on behalf of the two Republican state lawmakers who co-sponsored the amendment banning gay marriage: state Rep. Warren Chisum and former state Sen. Todd Staples.

"It's a backdoor run at establishing same-sex so-called marriage against the people's vote," Shackelford said. "Once you grant the divorce, you are recognizing that there was a marriage."

Dallas divorce attorney Tom Greenwald said he's advising gay couples to wait and see how things play out in the courts.

"Getting the court of appeals to even accept the issue is a step in the right direction in getting some clarity on this," he said. "We just don't know how to treat it."

As for Naylor and Daly — the latter declined to comment — they've been trying to figure out what to do since separating in 2007 amid escalating arguments.

The couple, who had real estate-related businesses and renovated homes, toyed with the idea of one of them moving to a state where gay marriage is legal until a divorce is finalized, but that didn't seem practical.

Naylor said that eventually, she and Daly worked out a custody arrangement for their now 4 1/2-year-old son. Naylor said that when she heard about the Dallas divorce, she thought it was worth a try and filed for her own, even though several attorneys she spoke with weren't so sure.

"They said it's too up in the air, wait and see for appeals," Naylor said. "I didn't have a lot of time to wait and see."

I think the State Attorney General was being a chickensh!t by not clarifying his position. He basically avoided the entire situation rather than take a stand for or against it.

I think the fact that this couple had common property and business makes this far more complicated for them to sort out on their own.

[Obama 2012 1,714]

This is a perfect example of when a state law is insufficient. Gay marriage can and should be constitutionally protected which would put an end to the states creating such a legal mess.

Well, not even "heterosexual" marriage is constitutionally protected.

Marriage is/always has been a state institution, not a Federal one.

The only time the Federal Government mentions/handles anything regarding marriage is during tax season.

[The_Dude 1,142]

Well, not even "heterosexual" marriage is constitutionally protected.

Marriage is/always has been a state institution, not a Federal one.

The only time the Federal Government mentions/handles anything regarding marriage is during tax season.

If and when this issue reaches the supreme court, it will be a civil rights issue, a federal issue.

[Obama 2012 1,714]

If and when this issue reaches the supreme court, it will be a civil rights issue, a federal issue.

Not really.

The only thing the supreme court could rule on is the constitutionality of "DOMA" and that's about it. The federal government can't touch contracts between individuals and the state.

The 'Full Faith and Credit' clause is the one thing that should make these marriages legal, but DOMA stops that from happening in an unconstitutional way.

There is no 'right' by anyone to marry anyone. That's the misconception. A marriage in government is nothing but a contract between two individuals that the state signs off on. Just as in any contract, the state has a choice to grant/sign off on your contract or not.

There can never be a 'mandate' to force states to let gay couples get married without changing laws, which the Supreme Court cannot do.

The only thing the supreme court CAN do and SHOULD do is rule DOMA unconstitutional and make sure states honor the contracts those individuals had in other states.

[SMOKE 1,426]

The only time the Federal Government mentions/handles anything regarding marriage is during tax season.

yet another reason gay marriage should be permitted & recognized as a civil union between 2 consenting adult.

and yes i know, i could have my RWN card pulled for that statement.

[The_Dude 1,142]

Not really.

The only thing the supreme court could rule on is the constitutionality of "DOMA" and that's about it. The federal government can't touch contracts between individuals and the state.

The 'Full Faith and Credit' clause is the one thing that should make these marriages legal, but DOMA stops that from happening in an unconstitutional way.

There is no 'right' by anyone to marry anyone. That's the misconception. A marriage in government is nothing but a contract between two individuals that the state signs off on. Just as in any contract, the state has a choice to grant/sign off on your contract or not.

There can never be a 'mandate' to force states to let gay couples get married without changing laws, which the Supreme Court cannot do.

The only thing the supreme court CAN do and SHOULD do is rule DOMA unconstitutional and make sure states honor the contracts those individuals had in other states.

Depending upon how the case is presented and what the cirucmstances are, I would think that they could contest that it should be protected under the equal protection clause of the 14th amendment.

[one...two...tree 2,762]

Well, not even "heterosexual" marriage is constitutionally protected.

Marriage is/always has been a state institution, not a Federal one.

The only time the Federal Government mentions/handles anything regarding marriage is during tax season.

Oh yes it is. See Loving v. Virginia.

[Obama 2012 1,714]

Oh yes it is. See Loving v. Virginia.

Loving v. Virginia is a "Full Faith and Credit" issue if you actually understand the history of the case. It's not a 'civil rights issue' despite it being protrayed as such by using the 14th amendment in the argument instead of actually addressing the unconstitutional law that Virginia had that violated the Full Faith and Credit clause.

[one...two...tree 2,762]

Loving v. Virginia is a "Full Faith and Credit" issue if you actually understand the history of the case. It's not a 'civil rights issue' despite it being protrayed as such by using the 14th amendment in the argument instead of actually addressing the unconstitutional law that Virginia had that violated the Full Faith and Credit clause.

You mean SCOTUS once again got it wrong but you have the correct interpretation...again?

The U.S. Supreme Court overturned the convictions in a unanimous decision, dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In its decision, the court wrote:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

http://en.wikipedia.org/wiki/Loving_v._Virginia

[Obama 2012 1,714]

Depending upon how the case is presented and what the cirucmstances are, I would think that they could contest that it should be protected under the equal protection clause of the 14th amendment.

Equal protection doesn't work, because the rights of individuals are equally protected when it comes to marriage.

If a state 'defines' marriage as between one man and one woman, then no said rights are being violated in denying a gay couple from getting married. The whole bullshit argument of "well a gay man can marry a woman still" etc.. is actually valid in this case because in accordance with the law and the definition of marriage, it stands true.

The only way this could ever be an exception would be if the Federal government were to legally re-define marriage as a contract between 2 individuals regardless of gendar boundries. Until that happens though, the 14th amendment is a moot point here entirely.

That's why the best argument and defense is the Full Faith and Credit clause. Why the Supreme Court hasn't truly been challenged on this is beyond me.

ALSO: Loving v. Virginia could bastardize any attempts if used in argument because it actually pretty much solidifies the idea that marriage is between a man and a woman, along with a couple of other cases. It specifically talks about the societal backbons of marriage, which could hurt those who would try and use it in Federal Courts... They would have to use it and PROVE that gay marriage is beneficial to society. That would be a tough argument to sell.

[Obama 2012 1,714]

You mean SCOTUS once again got it wrong but you have the correct interpretation...again?

http://en.wikipedia.org/wiki/Loving_v._Virginia

Do you understand the case? I'm not saying their ultimate decision for allowing interracial marriages was wrong. I am saying the premise on which the decision was made, was wrong.

The couple was actually 'legally' married in another state. Virginia had a law barring marriages from outside of their state, which was unconstitutional.

I'm just pointing out that the Full Faith and Credit clause was the proper argument and should have led to the appropriate decision in making Virginia honor that contract that took place in another state.

[one...two...tree 2,762]

Do you understand the case? I'm not saying their ultimate decision for allowing interracial marriages was wrong. I am saying the premise on which the decision was made, was wrong.

The couple was actually 'legally' married in another state. Virginia had a law barring marriages from outside of their state, which was unconstitutional.

I'm just pointing out that the Full Faith and Credit clause was the proper argument and should have led to the appropriate decision in making Virginia honor that contract that took place in another state.

Oye...Paul, there are countless examples of state issued licenses which are not valid in other states. For example, you could be a licensed dentist in Arizona, but you cannot practice in California without first being granted a license in that state. The Full Faith and Credit does mean that all state issued licenses must be honored in all states.

Second, the Equal Protection Clause of the 14th Amendment most certainly does protect marriage as it applies to the individual. If a state allows an individual to marry (enter into a contract) with another individual and another state denies or says such contract is invalid or illegal, that is a violation of the 14th Amendment. That, IMO, is how SCOTUS will eventually rule on the constitutionality of gay marriages.

[The_Dude 1,142]

The Equal Protection Clause which, at its core, provides that it is unconstitutional to treat similarly situated people differently based on a group characteristic without compelling reasons for doing so. Ballot measures are not a reason to deny a class of people basic rights that are enjoyed by everyone else in the country.