On Aug. 31, Dallas’ 5th Court of Appeals sided with the Texas Office of the Attorney General, ruling that a same-sex couple cannot get divorced in Texas. A three-justice panel of the 5th Court granted the OAG’s petition for a writ of mandamus but noted that “the writ will issue only if the trial court fails to immediately comply” with the 5th Court’s order. The 5th Court remanded the case with instructions that the trial court dismiss it for lack of subject matter jurisdiction. In the 38-page opinion, Justice Kerry P. FitzGerald, joined by Justices Robert M. Fillmore and David Bridges, wrote that the trial court “erred by ruling that article I, section 32(a) of the Texas Constitution and section 6204 of the Texas Family Code violate the Equal Protection Clause of the Fourteenth Amendment.” The controversial case began on Jan. 21, 2009, when J.B. filed his original petition for divorce. Attached to the petition was a certificate of marriage from the Commonwealth of Massachusetts, showing that J.B. and H.B. married in 2006. J.B. alleges in his original petition that "the marriage has become insupportable because of discord or conflict of personalities" between J.B. and H.B. In an Oct. 1, 2009, order, 302nd District Judge Tena Callahan ruled that the state's constitutional and statutory provisions prohibiting recognition of same-sex marriages in Texas violate the right to equal protection and therefore the 14th Amendment of the U.S. Constitution. Callahan found that she has jurisdiction to hear the divorce of J.B. and H.B., who were legally married in Massachusetts and currently meet the residency and other requirements to file for divorce in Dallas County. The judge also denied the OAG's motion to intervene in J.B. On Oct. 2, 2009, the OAG filed a notice of appealwith the 5th Court seeking to overturn Callahan's order. That notice stayed Callahan's order. In a Jan. 12 brief to the 5th Court, the OAG argued that "the questions presented here can be answered in just two simple steps. First, it is well established that voidance, not divorce, is the proper remedy under Texas law for terminating any purported marriage that is not legally valid in the State of Texas — including same-sex relationships that may be considered marriages in other states. And in any event, any federal constitutional claim to the contrary is precluded by U.S. Supreme Court precedent. . . ." In his Feb. 8 brief to the 5th Court, J.B. argued that Callahan's order does not overturn Texas' ban on same-sex marriage. "The married couple here simply wants a divorce, just like any other couple married out-of-state, relocated to Texas, and, when their relationship ended, availed themselves of our courts to obtain a divorce," J.B. wrote. The 5th Court heard oral arguments in In the Matter of the Marriage of J.B. and H.B. on April 21. In the Aug. 31 opinion, FitzGerald wrote that the 5th Court considered “whether Texas’s marriage laws are rationally related to the goal of promoting the raising of children in households headed by opposite-sex couples. We conclude that they are. Because only relationships between opposite-sex couples can naturally produce children, it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage. . . . The legislature could reasonably conclude that the institution of civil marriage as it has existed in this country from the beginning has successfully provided this desirable social structure and should be preserved. . . . The state also could have rationally concluded that children are benefited by being exposed to and influenced by the beneficial and distinguishing attributes a man and a woman individually and collectively contribute to the relationship. . . . The Texas Constitution and the Texas Family Code single out one particular social unit for purposes of defining a legally valid marriage in Texas: opposite-sex couples. Appellee asserts that because Texas law thus both defines and restricts formal recognition of the institution of marriage to opposite-sex couples, it thereby discriminates against and denigrates same-sex couples. We disagree. Texas law recognizes that only opposite-sex couples are naturally capable of producing children, and it gives participants in that kind of relationship the option of legal formalization, with the legitimate legislative goal of encouraging such formalization and thereby promoting the well being of children.” James "Jody" Scheske, a partner in the Austin office of Akin Gump Strauss Hauer & Feld who represents J.B., says he is disappointed with the decision and his client will likely appeal. "Eventually all married couples will have equal access to divorce in Texas. This opinion denies that right to same-sex couples based largely on the notion that the state needs to promote an 'optimal familial setting.' I fail to see what that has to do with divorce. Even divorcing opposite sex couples don't intend to procreate with each other." Tom Kelley, a spokesman for the OAG, did not immediately return a telephone call.
-- Mirizm Rozen