With a ruling on same-sex marriage from the United States Supreme Court just days away, the Texas Supreme Court finally acted on June 19, 2015, on a pair of appeals argued nineteen months ago in November 2013, holding in State v. Naylor, 2015 Tex. LEXIS 581, that the state’s attorney general did not have standing to appeal an Austin trial judge’s order granting a judgment “intended to be a substitute for a valid and subsisting divorce” to a lesbian couple who had married in Massachusetts, and granting a motion to dismiss an appeal in In re Marriage of J.B. and H.B., in which the Texas Court of Appeals in Dallas had ruled in 2010 that Texas courts lack jurisdiction to rule on divorce petitions from same-sex couples married elsewhere. The court’s opinion in the Naylor case by Justice Jeffrey V. Brown was joined by four other members of the court, one of whom also penned a concurring opinion. One member filed a dissenting opinion for himself and three others, arguing against the ruling on standing. One of the dissenters filed an additional dissenting opinion, arguing at length that the Texas ban on performing or recognizing same-sex marriages does not violate the 14th Amendment. One member did not participate in the case.
The motion to dismiss the J.B. and H.B. appeal was actually filed by James Scheske, who represented the party seeking an uncontested divorce. The two men married in Massachusetts in 2006 and moved to Texas in 2008. Shortly after moving to Texas they ceased to live together, and J.B. filed a petition in Dallas County seeking a property division and that his last name be changed back to his original name as part of a divorce decree. The state intervened and argued that the court had no jurisdiction to decide the case, but the trial judge, Tena Callahan, issued a ruling on October 1, 2009, holding that the Texas ban on same-sex marriage was unconstitutional and that she could decide the case. The state appealed that ruling, and the Texas Court of Appeals in Dallas ruled on August 31, 2010, that Judge Callahan was wrong. An appeal to the Texas Supreme Court followed, and the case was argued, after much delay, in November 2013. But H.B. subsequently died, and Scheske filed an uncontested motion to dismiss the case, since his client’s marriage had been terminated by death so a divorce decree was no longer needed. The court granted that motion on June 19 without explanation, but one of the judges noted in his concurring opinion in the Naylor case that the J.B. appeal was “moot” as a result of the death of one of the parties.
Angelique Naylor and Sabina Daly, Texas residents, went to Massachusetts to marry in 2004. Naylor filed a divorce petition in Travis County a few years later. The women had a child and were operating a business together, so, as Justice Brown explained, “Naylor hoped to obtain a judgment addressing their respective rights, some of which they had already settled in a suit affecting the parent-child relationship.” Although lawyers from the attorney general’s office were aware of the case and were actively monitoring its progress, they didn’t formally try to intervene until after the trial judge issued his bench ruling incorporating the parties’ settlement agreement into a judgment, which the judge explained “is intended to dispose of all economic issues and liabilities as between the parties whether they are divorced or not.” The following day, the state petitioned to intervene “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 judge rejected this petition as too late, and the Court of Appeals in Austin agreed in 2011. An appeal to the Texas Supreme Court followed, and it was consolidated with the J.B. appeal and argued on the same day in November 2013.
There was widespread speculation that the Texas Supreme Court, observing all the marriage equality litigation going on in Texas and elsewhere in the wake of the U.S. Supreme Court’s U.S. v. Windsor ruling, had decided not to rule on these appeals until the U.S. Supreme Court settled the constitutional questions around same-sex marriage one way or the other, so the Texas court’s June 19 actions caught many by surprise. Writing for the majority of the court, Justice Brown agreed with the Court of Appeals that the state lacked standing to appeal the trial court’s judgment. “Texas courts allow post-judgment intervention only upon careful consideration of any prejudice the prospective intervenor might suffer if intervention is denied, any prejudice the existing parties will suffer as a consequence of untimely intervention, and any other circumstances that may militate either for or against the determination,” he wrote. In this case, by implication, those considerations weighed against ordering intervention. Although Justice Brown left it unsaid, it seemed clear that the majority of the court saw little reason to litigate the underlying issue in this case when the U.S. Supreme Court was on the verge of ruling. He devoted most of his opinion to a close analysis of Texas laws governing post-judgment intervention, and almost none to the underlying question whether same-sex couples can get divorces in Texas, merely stating general agreement with Judge Devine’s analysis described below.
In a concurring opinion, Justice Jeffrey S. Boyd explained further the underlying rationale for dismissing the appeal. “I write separately to emphasize a point on which everyone agrees: the State of Texas is not bound by the divorce decree at issue in this case.” He continued, “The State lacks standing to appeal because it was not a party, it shared no privity or interest with any party, and the trial court’s judgment is not binding on it. . . As a non-party who is not bound by the judgment, the State has no obligation to give any effect to the trial court’s divorce decree. In fact, it may be, as the State contends, that our laws prohibit the State and all of its agencies and political subdivisions from giving any effect to the decree.” Since the state did not recognize the marriage in the first place, and had been taking the position all along in both cases that such out of state same-sex marriages are considered “void” in Texas, the decree was of no consequence to the state. Judge Boyd’s opinion overlooks the plain fact that the trial judge had not even necessarily considered this to be a divorce decree, but rather a “judgment” incorporating a settlement agreement reached by the parties. Judge Boyd did comment that the dismissal of the J.B. appeal as moot “leaves the Dallas court’s opinion as the only currently existing Texas law” on the issue whether same-sex couples married elsewhere can get a divorce in Texas, and that ruling, of course, was negative.
Justice Don R. Willett’s dissent argued strongly that the court should have allowed the State to intervene because of the importance of the question. Justice John P. Devine’s dissent, quite lengthy, plunged into the constitutional merits and argued that the Texas ban on recognizing same-sex marriages from other jurisdictions did not violate the 14th Amendment. In addition to relying on Section 2 of the Defense of Marriage Act, the provision that was left untouched by the U.S. Supreme Court in U.S. v. Windsor, which provides that states are not constitutionally required to recognize same-sex marriages from other states, he argued that Texas had good policy justifications for refusing to allow same-sex couples to marry and treating out-of-state same-sex marriages as void in Texas.
Ignorant comments by the governor and attorney general in response to the Naylor ruling led to misleading media reports suggesting that the Texas Supreme Court had “upheld” a same-sex divorce sought by Naylor, but clearly the court had done no such thing, merely holding that it was itself without jurisdiction to rule on the state’s argument that the trial court lacked jurisdiction.
Ultimately, these actions by the Texas Supreme Court will be of only passing interest after the U.S. Supreme Court’s ruling in Obergefell v. Hodges.