Some fear litigation could threaten city’s domestic partner benefits
In the wake of what is believed to be the state’s first same-sex divorce filing, LGBT legal experts again advised caution for gay and lesbian couples from Texas who are considering marriage.
Same-sex marriage is currently legal only in Massachusetts and Connecticut, and both states allow out-of-state couples to marry there.
But both also have residency requirements for divorce, meaning couples from out of state may not be able to undo their vows. Massachusetts, for example, requires that a married couple live in the state for one year before obtaining a divorce. Courts in Rhode Island and Oklahoma have denied divorces to same-sex couples married in other states.
And New York is the only state that has indicated it will recognize out-of-state same-sex marriages.
Jenny Pizer, director of Lambda Legal’s National Marriage Project, said it’s an issue the LGBT civil rights group has dealt with as far back as 2000, when Vermont legalized civil unions for same-sex couples from out of state.
"Nobody imagines that those emotions will fade and their hopes will be turned to disappointment and they’ll want to separate, but it certainly happens to some, and we encourage people to think about that, because it may not be easy to dissolve that status," Pizer told Dallas Voice this week.
Pizer said it’s possible the number of divorce cases will increase after California became the first state to allow out-of-state couples to marry in 2008, before voters there approved a constitutional amendment banning same-sex marriage in November. Meanwhile, Massachusetts, which legalized same-sex marriage in 2004, lifted its residency requirement for marriage in 2008, and Connecticut legalized same-sex marriage in October.
Last week, a gay Dallas man filed for divorce from his husband in Dallas County’s 302nd District Court. The man’s attorney, Peter A. Schulte of Dallas, said he thinks it’s the first same-sex divorce case in Texas’ history.
The couple married in 2006 when they lived in Massachusetts. The man who filed for divorce, who’s asked not to be identified, said they’ve been together for 11 years.
Texas has a constitutional amendment defining marriage as a union between a man and a woman, as well as a state statute prohibiting the recognition of same-sex marriages and civil unions from other states. A day after the man’s divorce petition was filed, Texas Attorney General Greg Abbott issued a statement saying he will oppose it.
"Because the parties’ Massachusetts-issued arrangement is not a marriage under Texas law, they are asking a Texas court to recognize — and dissolve — something that does not legally exist," Abbott said in a statement. "These two men are seeking a court ruling that challenges the Texas Constitution, so the Office of the Attorney General will intervene to defend Texas law — and the will of Texas voters."
If the couple is unable to obtain a divorce, it could lead to a variety of legal problems down the road, including the inability to remarry due to prohibitions on bigamy, according to legal experts.
But Pizer said the divorce case also could have negative consequences for the LGBT community as a whole.
"Often bringing a lawsuit is not going to solve the problem and it can make the situation worse for that couple and for everyone else in that state by building an ever-higher edifice of bad law," Pizer said.
Some said they fear the Texas Supreme Court could use the same-sex divorce case as an opportunity to issue a broad interpretation of the constitutional amendment, endangering domestic partner benefits offered by cities including Dallas and Austin.
The constitutional amendment, passed by voters in 2005, states that, "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."
Patti Fink, president of the Dallas Gay and Lesbian Alliance, said she believes the divorce lawsuit is "not very well thought out."
"The constitutional amendment affects political subdivisions, which is something that the city of Dallas is. The city currently offers domestic partner benefits to same-sex employees. That’s a benefit, I think, that’s very real in people’s lives," Fink said. "I think it [the lawsuit] just raises attention to an issue that doesn’t need any attention right now. I don’t think it would be tough to make it a big deal if someone on the right wing wanted to make it a big deal."
Schulte has said the divorce is not a "test case" designed to try to advance LGBT equality. But this week he said he also doesn’t think it can hurt. "The gay community can’t get any worse than they are right now," Schulte said. "We’re at ground zero."
Schulte said he’s disappointed that Abbott is trying to make the case about same-sex marriage as opposed to divorce. "He’s trying to muddy the issue and make this a political issue that he can try to capitalize on and take over [U.S.] Sen. [Kay Bailey] Hutchison’s seat when she reisgns."
Schulte has said he plans to argue that the divorce should be granted under the "full faith and credit clause" of the U.S. Constitution, which calls on states to recognize contracts from other states.
However, the federal Defense of Marriage Act gives states the explicit right not to recognize same-sex marriages from other states.
The man who filed for the divorce said in an e-mail that he will no longer discuss the case with Dallas Voice, because the newspaper used his initials in an article last week, which he said placed him "at great risk."
The man’s full name is a matter of public record, but he has indicated that publicity from the case could threaten his job.
Schulte said there will be a 60-day cooling off period before any court date.
This article appeared in the Dallas Voice print edition January 30, 2009.