April 23, 2010 12:46 PM

Akin Partner Continues to Fight for Gay Divorce in Texas

Posted by Zach Lowe

Akin Gump Strauss Hauer & Feld partner Jody Scheske remains right in the middle of a Texas case that has caught the attention of gay marriage supporters and opponents across the country. Scheske is representing a gay man, identified in court papers only as J.B., who is seeking to divorce his husband. The two men married in Massachusetts in 2006 and separated two years ago after moving to Texas. 

One problem: Gay marriage is illegal in Texas under both the state's laws and its constitution, which was amended via voter referendum in 2005 to ban gay marriage. But a trial judge last October not only granted J.B.'s divorce; he also ruled that the state's ban on gay marriage violates the equal protection clause of the federal Constitution, according to this April 21 story from the AP and this piece from our sibling publication Texas Lawyer. The state attorney general's office sought permission to appeal the October ruling, and the 5th District Court of Appeals in Dallas is hearing arguments in that appeal this week, the AP reports. 

 Scheske's argument is simple: His clients have a legal marriage, and they are therefore entitled to a legal divorce. He says J.B. never intended to overturn the state's gay marriage ban and doesn't seek to do so now, the AP and Texas Lawyer report. "He is not seeking to enter into a same-sex marriage," Scheske told the appeals panel on Thursday, the AP says. "He's seeking to end a marriage that was valid." Scheske stressed that his client never broached the larger constitutional issues; those came up at the lower court level only after the state AG's office sought to intervene in the case, Scheske told the panel, per the AP. 

We reached out to Scheske for comment but haven't heard back this morning. Peter Schulte, a Dallas-based lawyer, is also representing J.B.

As you probably know, the issue of divorce in states that don't recognize gay marriage has been a thorny one across the country. New York, which does not recognize gay marriage, grants divorces for gay couples who married in other states, but a Pennsylvania judge last month refused to grant a divorce to a lesbian couple that had married in Massachusetts.

Contact Zach Lowe at zlowe@alm.com

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