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Where is The Texas Supreme Court on the Issue of Gay Divorce?

A Travis County judge’s dissolution of a homosexual couple’s marriage has created questions about where the Texas Supreme Court stands on gay divorce.

Did the Texas Supreme Court recently hold that a Texas court can grant a divorce for a gay couple legally married under the laws of another state? The quick answer is no they did not. Nor did the majority decide the question of the constitutionality of same-sex marriage.

Angelique Naylor and Sabina Daly married in Massachusetts where same-sex marriage is legal. They moved to Texas and Naylor later filed for divorce in Travis County. A Travis County, Texas, judge granted the divorce and the state challenged the divorce in the appellate courts.

The Texas Supreme Court issued four opinions issued by the Texas Supreme Court and decided the case by a 5-3 vote.

Justice Jeff Brown wrote the majority opinion in which Chief Justice Nathan Hecht, and Justices Paul W. Green, Phil Johnson, and Jeffrey S. Boyd, joined.

In his concurring opinion, Justice Boyd wrote that he did so to “emphasize a point on which everyone agrees: the State of Texas is not bound by the divorce decree at issue in this case.”

The issue as stated by the majority was whether the attorney general could intervene after the judge had granted the divorce, and whether the state had the right to appeal the judge’s ruling.

The opinion does not serve as binding precedent in all gay divorce cases.

The Supreme Court declined to overturn the lower court’s ruling but did so saying they were constrained by legal procedural rules governing the timing of the state’s intervention.

The state appealed but the intermediate appellate court affirmed holding that the state’s intervention was untimely and there was no standing.  The majority wrote that the question of standing to appeal is rigid and not subject to equitable arguments and the Court was without legal authority to expand the scope of its jurisdiction.

Justice Don R. Willett filed a dissenting opinion in which Justices Eva Guzman and John Devine joined.

Willett wrote, “I would allow the attorney general to make his argument that Texas law imposes an absolute jurisdictional constraint and constitutionally prohibits a judge not only from performing a same-sex marriage but also from dissolving one.”

Willett stated, “In my view, the State’s chief legal officer—sworn to ‘preserve, protect, and defend’ Texas law—should in fact be permitted to preserve, protect, and defend it.”

Daly did not want the divorce and her response to the divorce petition included a motion to dismiss and/or declare the marriage void. She argued, the “Court does not have subject matter jurisdiction over this matter because Petitioner is asking the Court to recognize and enforce a marriage between two persons of the same sex which is contrary to the law and public policy of the State of Texas.”

She further maintained that the “marriage” was invalid and the parties did not qualify for a divorce. Justice Willett noted, “The State considered this the correct legal argument and, as a result, merely monitored the litigation rather than intervening right away.”

Justice Willett wrote, “The State’s ability to raise the issue should not turn on its ability to monitor divorce filings in every clerk’s office in the State in order to intervene promptly.” There are 254 counties in Texas.

Effective June 17, 2011, after this case was already at the Texas Supreme Court, the Government Code now mandates that if a party files a pleading challenging the constitutionality of a Texas statute and the attorney general is not a party to the action, the court shall serve notice to the attorney general via the method provided in the statute.

Dissenting Justice Willett wrote that “it is precisely the notoriety of the underlying issue, and the attorney general’s demonstrated record of engagement” that might provoke litigants to try to manipulate around intervention by the AG.

Justice Willett noted that a judge recently “quietly signed an order” barring the county clerk from denying marriage licenses to same-sex couples. Willett said he “use[d] the word ‘quietly’ because the Travis County judge elected not to advise the attorney general of any constitutional question, thus depriving the State’s chief legal officer of his statutorily mandated opportunity to defend Texas law.”

Justice Willett cited a case in San Antonio where the same thing happened last year.

The Texas Constitution, amended by voters in 2005, provides that “[m]arriage in this state shall consist only of the union of one man and one woman.” Both federal and state law provide that Texas courts may not “give effect” to same-sex marriages.

Governor Abbott and Texas Attorney General Ken Paxton disagreed with the majority’s disposition of the case on procedural grounds and issued statements in response to the issuance of the opinion.

Gov. Abbott responded stating the opinion was “disappointing and legally incorrect” and continued, “The Court mistakenly relied on a technicality to allow this divorce to proceed.” He added, “The State and all political subdivisions in Texas remain prohibited by the Texas Constitution from giving effect to a same-sex marriage or any document recognizing one—including the divorce decree in this case.”

Attorney General Paxton maintains, “Preserving the integrity of the Texas Constitution must be paramount, and the Office of the Attorney General should always have a voice in the discussion when the Texas Constitution is at risk.”

Texas Attorney General Abbott had intervened seeking “to oppose the Original Petition for Divorce and to defend the constitutionality of Texas and federal laws that limit divorce actions to persons of the opposite sex who are married to one another.” The trial court held that the intervention was too late.

The state appealed but the intermediate appellate court affirmed holding that the state’s intervention was untimely and there was no standing.  The majority wrote that the question of standing to appeal is rigid and not subject to equitable arguments and the cCourt was without legal authority to expand the scope of its jurisdiction.

The dissenting justices opined that the state had standing to present its argument and urged their fellow justices to determine whether the trial court should have entertained the state’s petition in intervention.

In a statement obtained by Breitbart TexasRev. Dave Welch, executive director of Texas Pastor Council Action stated, “While we are disappointed that rogue District Judge Scott Jenkins ignored the State Constitution in granting a divorce to this same-sex couple and he appears to have been given a pass, the highest court clearly affirmed there is no legal basis for either marriage or divorce for same-sex couples in Texas.”

The issue of same-sex divorce in Texas has thus not been reached by the highest civil court in Texas by this decision; however, a clue as to how the Court may rule in the future may perhaps be found in the majority opinion.

Justice Brown, writing for the majority, stated, “we would be remiss not to acknowledge Justice Devine’s careful and thorough treatment of the constitutional questions presented to the Court. The State asks us to determine whether Texas has a constitutional right to define marriage and whether state law precludes the trial courts from offering divorce to same-sex couples. We have no quarrel with Justice Devine’s analysis.”

Justice Devine found that the divorce suit attacked the validity of Texas’ constitutional and statutory prohibition on same-sex marriage and the trial court was prohibited from granting a divorce and could only declare it void. The dissenting justice concluded that declaring the marriage void would not violate the federal constitution.

As Justice Devine would uphold Texas’ constitutional ban against the recognition of same-sex marriage, this is perhaps an important clue as to how the Texas Supreme Court would rule given the chance to decide the issue on the merits.

Moreover, as noted by Justice Willett in his dissent, the U.S. Supreme Court may resolve constitutional arguments about gay marriage before the Texas Supreme Court has a case which allows it to rule on the issue; specifically, “whether the United States Constitution commands a 50-state right to same-sex marriage.”

The opinion by the U.S. Supreme Court, which will decide that issue, Obergefell v. Hodges, is expected any moment now.

Lana Shadwick is a writer and legal analyst for Breitbart Texas. She has served the state of Texas as an associate family court judge. Follow her on Twitter @LanaShadwick2

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