Saturday, April 10, 2010

The Dallas Gay Divorce Case, Part III – Attack of the Confusing Legal Terms

Be sure to read Parts I and II.

So a Gay couple who was married in Massachusetts moved to Texas and asked for a divorce. Dallas Judge Tena Callahan granted them the divorce and the State Attorney General, along with a State Rep. and the State Agriculture Commissioner asked the State’s 5th Appeals court to overrule the divorce and void the marriage instead.

All of this based on questions of how exactly how to apply the 14th amendment's guarantee of “equal protection”.

As previously discussed the Supreme Court has decided that there are three different standards for scrutinizing discrimination claims based on the equal protection clause: strict, intermediate and rational basis; and the Supreme Court has been very clear that in federal courts discrimination claims rising from sexual orientation are to be analyzed under the “rational basis scrutiny” standard. Chisum and Staples have argued that by using the “strict scrutiny” standard Judge Callahan has misapplied the law.

Here’s the weak point in their argument - the Supreme Court's application of the rational basis standard to questions of discrimination based on sexual orientation is based on FEDERAL law and precedent, not STATE. So while a state may not consider a group of people who are federally considered under the strict scrutiny standard under less stringent scrutiny, it is not precluded from elevating a group of people to a higher standard of scrutiny IF the law and precedent of that state warrants.

Those groups that are considered under strict scrutiny are referred to as “suspect classes”, which means exactly the opposite of what it sounds like it means. “Suspect classes” are groups of people who are automatically suspected of facing discrimination.

So how does a group qualify as “suspect”? The basic criteria were set by the Supreme Court in United States v. Carolene Products Co.:

1. The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes.
2. The group is a "discrete" or "insular" minority.
3. They possess an immutable and/or highly visible trait.
4. They are powerless to protect themselves via the political process.

As stated the U.S. Supreme Court has not found that Gay, Lesbian and Bisexual people meet these guidelines based on federal law and precedent. However the state courts of California, Connecticut and Iowa have looked at the specific situations in their states and decided that GLB people do qualify as a “suspect group”.

So if it could be provided that, according to the laws and precedents of the State of Texas, GLB people meet these criteria, then a strict scrutiny standard would be appropriate, in Texas, when analyzing discrimination claims based on sexual orientation.

I think any queer activist who looked at those four criteria will immediately jump to the conclusion of “of course”, and they would be wrong. It is not enough to claim that those criteria are met, we have to prove that the State of Texas recognizes that they have been met. So let's go down the list:

1. The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes.

The Texas Code of Criminal Procedure Chapter 42.014 covers bias crimes (or hate crimes). It states that a person may be charged with a bias crime if they have chosen the target of their crime based on the “sexual preference” of the victim. By acknowledging that “sexual preference” is a category by which people are targeted as victims of crimes, the State of Texas has acknowledged that Gay, Lesbian and Bisexual people face hostility, and therefore meet this criteria.

In addition, the 74th Texas House passed House Resolution 1225 in regular session. HR 1225 congratulates Houston area teacher Kelly Martin for his retirement, and lists among his many accomplishments organizing a neighborhood watch to protect gay patrons of Houston area nightclubs from attack. Another example of a state body recognizing the hostility faced by GLB folk.

2. The group is a "discrete" or "insular" minority.

Since 1993 the Texas House or Senate has passed 10 resolutions that recognize individuals or institutions for their contributions to the Gay and Lesbian or GLBT community (74(R): HR 308, HR 607, HR 1225, SR 777; 77(R) HR 1397; 78(3) HR 144; 79(1) HR 281, 80(R) HR 1311, HR 2075; 81(R) HR750). These resolutions acknowledge not only the existence of a community, but that the community has its own media, churches, organizations and business, thus constituting a “’discrete’ and ‘insular’ minority” recognized by the State of Texas.

A quick search of the Governor’s website turns up half a dozen events at any time celebrating the “Gay and Lesbian” community on a calendar of state cultural events. Thus the Governor’s office also recognizes the existence of a “discrete” gay and lesbian community.

3. They possess an immutable and/or highly visible trait.

In Heyden v. Texas the Texas Court of Criminal Appeals (TCCA) was considering a capitol case in which the defense wished to introduce evidence during the trial phase that the murder victim was a sex offender, and therefore the impact of murdering him was less severe. The trial judge refused to hear the evidence and the defense appealed to the TCCA.

In finding for the State the TCCA quoted its opinion in Goff v. Texas, in which a capitol defendant had attempted to admit evidence during the sentencing phase that the victim was homosexual. The TCCA refers to the victim in Goff as “a homosexual” rather than as a person who engaged in homosexual activities. The use of “homosexual” as a noun suggests the court's acknowledgement of homosexuality as an innate trait, rather than a behavior.

4. They are powerless to protect themselves via the political process.

Since the 2003 Lawrence v. Texas Supreme Court decision declared Texas’s sodomy laws unconstitutional, multiple efforts have been made to remove those laws from the books. All have failed. Not only that, Texas laws are riddled with references to the, now unenforceable, law.

Penal Code Sec. 21.06. HOMOSEXUAL CONDUCT. (a) "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex."

Health and Safety Code 163.002 (8) " …homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense under Section 21.06, Penal Code."

Health and Safety Code 85.007 (2) "…homosexual conduct is not an acceptable lifestyle and is a criminal offense under Section 21.06, Penal Code."

The inability of the GLB community to remove these laws, despite the Supreme Court ruling that they are unconstitutional, clearly demonstrates a lack of political power at the state level.


Criteria 1 has been recognized by the Texas Legislature, Governor and the Texas House;

Criteria 2 has been recognized by the Texas House, Senate and Governor;

Criteria 3 has been recognized by the Texas Court of Criminal Appeals; and

Criteria 4 is readily apparent.

Therefore, Texas law and precedent contain sufficient grounds to consider GLB people as a “suspect class”.

I recognize that I am not a lawyer, just some guy with a blog, and I am very curious what a constitutional law expert would have to say about my interpretation. That said, I am confident that Judge Callahan did not overstep her authority in applying a strict standard to the Dallas Gay Divorce Case.

It will be interesting to see what the Texas 5th Court of Appeals decides when they hear this case (the first hearing is scheduled for April 21). I suspect that they will reverse the ruling, and there are any number of next steps, both judicial and legislative, that are likely to follow. The only thing I’m certain of is that we will be talking about this case for some time.

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