A lawyer for a Dallas man trying to divorce the man he married in Massachusetts told a Texas appeals court Wednesday that his client is entitled to a divorce because he had a valid marriage.
But the Texas Attorney General's Office argued before the three-judge 5th Texas Court of Appeals panel that the marriage isn't recognized by Texas, so they cannot get a divorce. Jimmy Blacklock, an assistant Texas solicitor general, said the men's union can only be voided.
"The parties lack standing to file a divorce case because they're not married," he said.
The Dallas men wed in 2006 in Massachusetts, where gay marriage is legal, and separated two years later.
Attorney General Greg Abbott appealed a Dallas state district judge's ruling in October that granted a divorce to the men and said the state's same-sex marriage ban violates equal rights guaranteed by the U.S. Constitution.
Abbott is also appealing an Austin judge's ruling this spring that granted a divorce to two women married in Massachusetts.
Jody Scheske, who represents the Dallas man listed in court records only as J.B., said his client doesn't want to overturn the state's marriage ban, but only wants to end his own marriage.
"He is not seeking to enter into a same-sex marriage; he's seeking to end a marriage that was valid," Scheske said.
"The trial courts have the right to hear divorce cases from people who have valid marriages," he said.
Blacklock told the judges that the state's ban on gay marriage doesn't violate the Constitution and asked them to confirm that voidance is the correct way to dissolve a same-sex union.
"Voidance is the remedy Texas has long provided to dissolve a void marriage," he said.
Scheske said voidance isn't applicable to his client because he has a valid marriage. And, he said, the constitutional issues only arose in the case after Abbott tried to intervene. The judge did not allow the intervention, so Abbott appealed.
"My client's very private matter has become a public spectacle," Scheske said.
The court did not give a time frame for a ruling in the case.
In 2004, Massachusetts became the first state to let same-sex couples get married. 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.
Hiram Sasser, an attorney for the conservative Liberty Institute in Plano, told the court that the issue of same-sex marriage should be determined by the people. And he said Texans have already spoken on the issue.
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.
Liberty Institute had 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.
Attorney Peter Schulte, who also represents J.B., said J.B. and his partner, known in court filings as H.B., had an amicable separation, with no disputes on separation of property and no children involved. He said the couple simply wants an official divorce.
"But for the actions of the attorney general," Scheske told the court, "my client would already be divorced and there would be one less same-sex marriage in Texas."
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