When the U.S. Supreme Court granted certiorari Dec. 7 in two cases raising constitutional questions related to same-sex marriages, former Akin Gump Strauss Hauer & Feld partner James “Jody” Scheske (pictured) paid close attention. After 20 years at Akin Gump, Scheske left the firm in July to practice part-time as a solo and “rethink his career.” But he’s still awaiting action from the Texas Supreme Court: He represents clients pro bono in two same-sex divorce cases with pending petitions for review there; one has been pending for almost two years.
In In the Matter of the Marriage of J.B. and H.B., Scheske represents J.B., a Dallas man trying to divorce his same-sex partner. J.B. has asked the Texas Supreme Court to reverse an Aug. 31, 2010, ruling by Dallas’ 5th Court of Appeals that sided with the state of Texas, concluding that J.B. and the partner he married in Massachusetts cannot get divorced in Texas.
In State of Texas v. Angelique S. Naylor and Sabina Daly, Scheske represents Angelique Naylor. Naylor received a divorce from her same-sex partner; the two had been married in Massachusetts. Their divorce decree survived a challenge by the state: Austin’s 3rd Court of Appeals dismissed that challenge on procedural grounds on Jan. 7, 2011. The Texas Office of the Attorney then asked the Texas Supreme Court to review that 3rd Court ruling.
In an email OAG spokesman Thomas Kelley declines comment regarding J.B. and Naylor in light of the U.S. Supreme Court’s decision to hear the same-sex marriage cases, which are Dennis Hollingsworth, et al v. Kristin Perry, et al. and United States v. Edith Windsor, et al. In a follow-up email, however, Kelley notes that Texas joined Indiana and 14 other states on Aug. 31 when they filed a friend of the court brief in Hollingsworth. In that amici brief Texas and the other states argue that marriage is defined in 44 states “as the legal union of one man and one woman, consistent with the ancient historical definition of marriage.” They further argue that the 9th U.S. Circuit Court of Appeals’ decision in Hollingsworth allowing for same-sex marriage “undermines the ability of states to define and regulate marriage and uses the federal constitution to prevent citizens from overriding a judicial interpretation of a state constitution.”
“[V]ery disappointing” is how Scheske characterizes the delays in his clients’ same-sex divorce cases at the Texas Supreme Court. For J.B., who has not been granted a divorce, the lack of a decision by the Texas Supreme Court has meant “his life is in limbo,” says Scheske. For Naylor, the situation is better, Scheske says, because the trial court granted her divorce and “she has happily moved on with her life.”
Now that the U.S. Supreme Court has agreed to hear same-sex marriage cases, Scheske says he “wouldn’t be surprised,” if the Texas Supreme Court postpones its decision on whether to grant review in his clients’ cases until after the high court rules, which may not happen until June.
Scheske says “within the realm of possibilities,” is the Texas Supreme Court granting the petition for review in Naylor’s case and overturning her divorce. But, he says, “We choose not to focus on that.”
Bob Luther, an Austin lawyer who represents Naylor’s ex, Sabina Daly, says he cannot explain the Texas Supreme Court’s delay but, like Scheske, accepts it. “Each case has its time and place,” Luther says.
J.B.’s spouse, H.B., is listed only as an “interested party” in the appeal before the Texas Supreme Court. H.B. has no counsel listed, and he has never been identified in J.B.’s pleadings, Scheske says.
-- Miriam Rozen
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