The controversial question of whether same-sex couples who marry in other states should be able to divorce each other in Texas - a state that only recognizes marriages between one man and one woman - heats up today when it goes before an appeals court in Dallas.
The case expected to draw national attention involves two Dallas men, identified in court documents as "J.B." and "H.B." who married each other in Massachusetts in 2006 and now want a divorce. State attorneys will argue to the 5th Court of Appeals today why that should not happen in Texas.
This is the first such case in Texas to be appealed to a higher court - and one that could go all the way to the Texas Supreme Court before a precedent-setting ruling is delivered, political observers say.
"This is likely to be the major civil rights initiative of the coming decade," said Cal Jillson, a political science professor at Southern Methodist University in Dallas. "The 1960s were about the rights of blacks, the 70s were about the rights of women. Civil rights initiatives (for same-sex couples) is likely to be the next one we wrestle with."
At issue is an October ruling by Dallas state District Judge Tena Callahan that Texas' gay marriage ban violates the U.S. Constitution's guarantee of equal protection of the law.
Texas Attorney General Greg Abbott, whose office will argue against allowing this divorce, has intervened and said the two men can't be divorced in Texas because their marriage isn't recognized here.
"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 has said in a statement. "These two men are seeking a court ruling that challenges the Texas Constitution, therefore the Office of the Attorney General will intervene to defend Texas law -- and the will of Texas voters."
Texas voters in 2005 approved a state constitutional amendment banning same-sex civil unions and gay marriage.
The case
Last year, "J.B." filed for divorce from his husband, "H.B.," with whom he exchanged vows in Massachusetts in 2006. The men, who are not identifying themselves by their real names in this case, separated two years later and last year decided to seek a divorce.
When Callahan heard the case last year, she didn't dismiss the divorce case and said the state's same-sex marriage ban violates rights guaranteed by the U.S. Constitution.
Abbott, who has said this case is an "apparent constitutional attack," has appealed Callahan's decision to not dismiss the case - as he has appealed the case of two Austin women who have an adopted child and were granted a same-sex divorce this year.
J.B. has gone on TV and said he isn't trying to be a test case to expand gay rights in Texas. "It's funny that the only individual that has made this a test case is the attorney general of Texas," attorney Peter Schulte, who represents J.B. and will be arguing the case in court today, has said.
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