The Texas Supreme Court & Same-Sex Marriage, Pre-Obergefell v. Hodges

Today, the Texas Supreme Court disposed of two same-sex marriage cases, In re Marriage of J.B. & H.B., No.  11-0024, and State v. Naylor, No. 11-0114 (Tex. 2015). Though neither case resulted in a groundbreaking or even particularly impactful decision, the court took the opportunity to air its thoughts on same-sex marriage in a cacophony of voices. To paraphrase one of the Justices, the expected ruling of the U.S. Supreme Court in the next two weeks “will likely subsume the merits of” its decision today.

In both cases, couples legally married in Massachusetts filed for divorce in Texas. Texas does not recognize same-sex unions at all, including same-sex unions from other states where such unions are legal.

In the case of J.B. and H.B., the Fifth District Court of Appeals ruled that the district court lacked subject matter jurisdiction over the parties’ divorce and that Texas’ same-sex marriage bans do not violate the equal protection clause of the Fourteenth Amendment. In re Marriage of J.B. and H.B., 326 S.W.3d 654, 659 (Tex.App.–Dallas 2010, pet. dismissed). The Texas Supreme Court granted J.B.’s petition for review but H.B. passed away on April 11, 2015. J.B. filed a motion to dismiss on April 17, 2015 which was granted today.

The Texas Supreme Court actually issued a ruling in State v. Naylor, but did not reach the merits of the case. In Naylor, the parties were married in Massachusetts in 2004. They returned to Texas, adopted a child, and started a business together. Eventually they separated. In January 2009, Naylor filed a SAPCR which resulted in an agreed order. Naylor then filed a petition for divorce in the same cause number as the SAPCR and also later amended her pleadings to request a modification of the parent-child relationship. After a two-day hearing, the parties reached a settlement, the terms of which were read into the record on February 10, 2010 and the trial court granted a divorce.

The next day, the State filed a petition in intervention arguing the trial court lacked jurisdiction to grant the divorce because the parties were of the same sex. The State further argued the parties’ only vehicle for relief in Texas was to have the marriage declared void under Tex. Fam. Code 6.307. The trial court stated it could not consider the petition in intervention because it was not filed until after the rendition of the final judgment. The State appealed but the Court of Appeals dismissed the appeal for want of jurisdiction, finding the State lacked standing.

The Texas Supreme Court, in a profusion of opinions, agreed that the State’s petition in intervention was untimely. Frankly, with other matters pressing, I have not had time to read the four opinions in great detail. The majority opinion, authored by Justice Brown, was joined by Chief Justice Hecht and Justices Green, Johnson, and Boyd. Justice Boyd also filed a concurrence which emphasizes that the parties’ divorce decree is not binding on the State and also takes issue with several points in Justice Willett’s dissent. Justice Willett filed a dissent, which was joined by Justices Guzman and Devine, and Justice Devine filed his own dissent. The majority opinion in fact took pains to recognize Justice Devine’s “careful and thorough” treatment of the constitutional questions underlying the the case, and even stated it has “no quarrel” with his analysis. “Like Justice Devine,” the majority concluded, “we would appreciate the opportunity to address the merits of this issue of critical importance at this crucial juncture in our nation’s history. Yet we must respect the bounds of our jurisdiction by addressing only the questions immediately before the Court.”

Hovering over all of the opinions is the pending ruling in the U.S. Supreme Court expected by the end of the month. As Justice Willett put it, “The federal constitutional merits lurking in today’s case will be addressed within days.” The opinions give the distinct impression the court is not just clearing the deck before Obergefell v. Hodges makes landfall, but taking a stance before the U.S. Supreme Court weighs in, particularly with its explicit endorsement of Justice Devine’s dissent. This impression is strengthened by the fact the case has been on the court’s docket for literally years and there was no compelling reason to rule at all before Obergefell.


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