Naylor v. Daly State's Reply Brief on the Merits - 11 012011

8/13/2019 Naylor v. Daly State's Reply Brief on the Merits - 11 012011

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No. 11-0114

In theSupreme Court of Texas

STATE OF TEXAS,

Petitioner,

v.

ANGELIQUE S.NAYLOR AND SABINA DALY,

Respondents.

On Petition for Review from the

Third Court of Appeals at Austin, Texas

PETITIONERS REPLY BRIEF ON THE MERITS

GREG ABBOTT

Attorney General of Texas

DANIEL T. HODGE

First Assistant Attorney General

BILL COBB

Deputy Attorney General

for Civil Litigation

JONATHAN F. MITCHELL

Solicitor General

JAMES D. BLACKLOCK

Assistant Solicitor General

State Bar No. 24050296

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548 (MC-059)

Austin, Texas 78711-2548

[Tel.] (512) 936-8160

[Fax] (512) 474-2697

[email protected]

COUNSEL FOR PETITIONER

FILEDIN THE SUPREME COF TEXAS11 November 1 P4:5BLAKE A HAWTHOCLERK


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i

TABLE OF CONTENTS

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

I. This Court Has Jurisdiction Under Multiple Provisions of Section

22.001(a) of the Government Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. The State Properly Intervened Under Rule 60 of the Texas Rules of

Civil Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The State Has Consistently Relied on Rule 60 as the Basis for its

Intervention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The States Right To Intervene to Defend the Constitutionality

of Texas Law Is Not Purely a Creature of Statute. . . . . . . . . . . . . . . 6

1. The State has a justiciable interest in upholding its

democratically enacted laws. . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. This Courts Guaranty Federal and Union Carbide

decisions do not bar the State from using Rule 60 to

intervene in constitutional litigation. . . . . . . . . . . . . . . . . . . 10

3. This Hearing the States appeal would not upend settled

law or violate separation of powers principles. . . . . . . . . . . 12

C. This Case Implicates the States Justiciable Interest in

Defending Texas Law Against Constitutional Attack. . . . . . . . . . . 13

III. Granting a Divorce to a Same-Sex Couple Violated the Texas

Constitution and Family Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

IV. Following Texas Law By Reversing the Divorce Decree Would NotViolate the U.S. Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27


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ii

INDEX OF AUTHORITIES

Cases

Attorney Gen. of N.Y. v. Soto-Lopez,

476 U.S. 898 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Bland Indep. School Dist. v. Blue,

34 S.W.3d 547 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Bonds v. Foster,

36 Tex. 68 (1871) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Brown v. Todd,

53 S.W.3d 297 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Corpus Christi Peoples Baptist Church, Inc. v. Nueces County Appraisal Dist.,

904 S.W.2d 621 (Tex. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Dawson-Austin v. Austin,

968 S.W.2d 319 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Engquist v. Oregon Dept. of Agr.,

553 U.S. 591 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Estin v. Estin,

334 U.S. 541 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Frost Natl Bank v. Fernandez,

315 S.W.3d 494 (Tex. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 25

Guar. Fed. Savings Bank v. Horseshoe Operating Co.,793 S.W.2d 652 (Tex. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-12

In re Lumbermens Mut. Cas. Co.,

184 S.W.3d 718 (Tex. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6


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iii

In re Marriage of J.B. & H.B.,

326 S.W.3d 654 (Tex. App.Dallas 2010, pet. filed) . . . . . . . . . . . . . . . . . 3, 8, 19

In re Union Carbide Corp.,

273 S.W.3d 152 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10, 11

LeClerc v. Webb,

419 F.3d 405 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Loughran v. Loughran,

292 U.S. 216 (1934) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Meml Hosp. v. Maricopa County,

415 U.S. 250 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Mercer v. Phillips Natural Gas Co.,

746 S.W.2d 933 (Tex. App.Austin 1988, writ denied) . . . . . . . . . . . . . . . . . . . . 9

Mireles v. Mireles,

No. 01-08-00499-CV, 2009 WL 884815

(Tex. App.Houston [1st Dist.] Apr. 2, 2009, pet. denied) . . . . . . . . . . . . . . 3, 18

Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Assn.,

1 S.W.3d 108 (Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Nevada v. Hall,

440 U.S. 410 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Pac. Employers Ins. Co. v. Indus. Accident Commn,

306 U.S. 493 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Perry v. Del Rio,

67 S.W.3d 85 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Saenz v. Roe,

526 U.S. 489 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

Stafford v. Stafford,

726 S.W.2d 14 (Tex. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2


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iv

State v. Delesdenier,

7 Tex. 76 (1851) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9, 13

State v. Naylor,

330 S.W.3d 434 (Tex. App.Austin 2011, pet. filed) . . . . . . . . . . . . . . . . . . . . . 2, 5

Walker v. Packer,

827 S.W.2d 833 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Williams v. North Carolina,

317 U.S. 287 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Yett v. Cook,

281 S.W. 837 (Tex. 1926) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Constitutional Provisions, Statutes, and Rules

28 U.S.C. 1738C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

TEX.CIV.PRAC.&REM.CODE 37.006(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9

TEX.CONST. art I, 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX.FAM.CODE 6.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX.FAM.CODE 6.204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

TEX.FAM.CODE 6.204(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 25

TEX.FAM.CODE 6.204(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

TEX.FAM.CODE 6.204(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX.FAM.CODE 6.204(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

TEX.FAM.CODE 6.307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX.GOVT CODE 22.001(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3


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v

TEX.GOVT CODE 22.001(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEX.GOVT CODE 22.001(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3

TEX.GOVT CODE 22.001(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX.GOVT CODE 402.010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13

TEX.GOVT CODE 402.010(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX.GOVT CODE 402.010(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX.R.APP.P. 60.2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

TEX.R.CIV.P. 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Other Authorities

67 Tex. Jur. 3d State of Texas 97 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

In the Matter of the Marriage of J.B. & H.B.,

No. 09-01074-U3, Order

(302nd Dist. Ct., Dallas County, Tex. Oct. 1, 2009) . . . . . . . . . . . . . . . . . . . 14, 15


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No. 11-0114

In the

Supreme Court of Texas

STATE OF TEXAS,

Petitioner,

v.

ANGELIQUE S.NAYLOR AND SABINA DALY,

Respondents.

On Petition for Review from the

Third Court of Appeals at Austin, Texas

PETITIONERS REPLY BRIEF ON THE MERITS

TO THE HONORABLE SUPREME COURT OF TEXAS:

I. THIS COURT HAS JURISDICTION UNDER MULTIPLE PROVISIONS OF SECTION

22.001(a)OF THE GOVERNMENT CODE.

This Court has jurisdiction under three, independent provisions of section 22.001(a)

of the Government Code. SeeTEX.GOVT CODE 22.001(a)(3) (jurisdiction over a case

involving the construction or validity of a statute necessary to a determination of the case);

22.001(a)(2) (jurisdiction when one of the courts of appeals holds differently from a prior

decision of another court of appeals . . . on a question of law material to a decision of the

case); 22.001(a)(6) (jurisdiction over any other case in which it appears that an [important]

error of law has been committed by the court of appeals).


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1. See also Stafford v. Stafford, 726 S.W.2d 14, 15 (Tex. 1987) ([I]t is generally held that when our

jurisdiction is properly invoked as to one point set forth in the application for writ of error, we acquire

jurisdiction of the entire case.).

2

Respondents contend that this case does not involve the construction or validity of a

statute. Resp. Br. at xv, 9. Two of the three Issues Presented in this appeal, however,

involve matters of statutory construction and constitutional law. States Br. at vi. And most

ofRespondents brief is spent construing section 6.204 of the Family Code and arguing that

Texass traditional marriage laws are unconstitutional. Resp. Br. at 21-49. Nevertheless,

Respondents claim this Court lacks jurisdiction because the court of appeals holding did not

reach the statutory and constitutional issues. Id. at 9. This Court, however, reviews cases,

not court of appeals opinions. As this Court ha[s] repeatedly recognized, if [its] jurisdiction

is properly invoked on one issue, [it] acquire[s] jurisdiction of the entire case. Brown v.

Todd, 53 S.W.3d 297, 301 (Tex. 2001) (citing cases).1 Thus, it does not matter whether the

court of appeals formally reached the statutory construction and constitutional issues.

Regardless of the court of appeals disposition, these issues have been part of the case all

along and give this Court jurisdiction over the entire case under section 22.001(a)(3).

Although the court of appeals did not formally reach the statutory construction issue,

it was not silent on the matter. See State v. Naylor, 330 S.W.3d 434, 441-42 (Tex.

App.Austin 2011, pet. filed). Despite the plain language of section 6.204 of the Family

Code, the court stated that section 6.204 can be interpreted in a manner that would allow the

trial court to grant a divorce in this case. Id. As a result, this Court also has jurisdiction

under TEX.GOVT CODE 22.001(a)(2). Respondents object that the court of appeals did not


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2. See In re Marriage of J.B. & H.B., 326 S.W.3d 654, 659 (Tex. App.Dallas 2010, pet. filed) (We hold

that Texas district courts do not have subject-matter jurisdiction to hear a same-sex divorce case.);Mireles

v. Mireles, No. 01-08-00499-CV, 2009 WL 884815, at *2 (Tex. App.Houston [1st Dist.] Apr. 2, 2009, pet.

denied) (mem. op.) (A Texas court has no more power to issue a divorce decree for a same-sex marriage

than it does to administer the estate of a living person.).

3

formally hold that section 6.204 allows same-sex divorce. Resp. Br. at 9-10. That is true,

but it does not deprive this Court of jurisdiction. For purposes of Subsection (a)(2), one

court holds differently from another when there is inconsistency in their respective decisions

that should be clarified to remove unnecessary uncertainty in the law and unfairness to

litigants. TEX.GOVT CODE 22.001(e). The Fifth and First Courts of Appeals have

squarely held that Texas courts lack jurisdiction over suits for same-sex divorce.2The Third

Court of Appeals, by contrast, went out of its way to open the door to same-sex divorce suits

in Texass third judicial region. This inconsistency . . . should be clarified, both to

remove unnecessary uncertainty about the meaning of Texass traditional marriage laws and

to remove . . . unfairness to litigants who may be encouraged by the Third Courts

statements to attempt to dissolve their out-of-state same-sex marriages through void,

unenforceable divorce decrees. Id. 22.001(a)(2), (e).

Finally, this Court has jurisdiction under section 22.001(a)(6) because the court of

appeals error in excluding the State from the case and allowing an unconstitutional and void

divorce decree to stand is of such importance to the jurisprudence of the state and requires

correction. Id. 22.001(a)(6). However, even if this Court agrees with Respondents that

the court of appeals did not err, it has statutory jurisdiction over this casein its

entiretyunder sections 22.001(a)(3) and 22.001(a)(2).


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4

II. THE STATE PROPERLY INTERVENED UNDER RULE 60OF THE TEXAS RULES OF

CIVIL PROCEDURE.

A. The State Has Consistently Relied on Rule 60 as the Basis for its

Intervention.

Respondents incorrectly portray the States position on intervention as a moving

target. Resp. Br. at 11-19. They claim the State has finally admitted that its positions in

the court of appeals were wrong. Resp. Br. at 13, 15. This is false. The State initially

intervened under TEX.R. CIV.P. 60, citing its justiciable interest in defending Texass

marriage laws against constitutional attack. CR246-48. As the record reflects, Rule 60 has

remained the basis for the States intervention throughout the litigation.

Respondents first objected to the States intervention via Dalys motion to strike in

the district court, in which Daly alleged that the States intervention was untimely because

it came one day after the court orally granted a divorce. CR251-54. The district court did

not rule on Dalys motion to strike but expressed doubt that the State had timely intervened.

RR4:18. The court also suggested that the State could appeal the jurisdictional issue.

RR4:27-28, 32. On appeal, the State briefly addressed the intervention issue in its opening

brief. SeeStates Br. at 27-29, State v. Naylor, No. 031000237CV (Tex. App.Austin

July 21, 2010). The State pointed to similarities between this case andMotor Vehicle Board

v. El Paso Independent Automobile Dealers Association, 1 S.W.3d 108 (Tex. 1999), and

urged the court of appeals to reach the merits of the States appeal despite the timeliness-of-

intervention concerns. Id. After Respondents focused much of their brief on excluding the

State from the proceedings, the State expanded on its intervention arguments at length in its


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3. The State did rely directly on the virtual-representation theory, among other theories, in arguments before

the district court. RR4:32.

5

reply brief to the court of appeals. States Reply Br. at 3-15, State v. Naylor, No.

031000237CV (Tex. App.Austin Nov. 5, 2010). In that brief, the State made

essentially the same arguments in support of its intervention that it makes in this Court. The

State argued that (1) it has a well-recognized justiciable interest in the case given the

constitutional issues at stake, entitling it to intervention under Rule 60; (2) the general rule

against post-judgment intervention is subject to equitable exceptions; and (3) given the

unique circumstances of this case and the important issues involved, the merits of the States

appeal should be heard so that Respondents are not permitted to thwart the Texas

Constitution and the Family Code by agreed judgment. Id.

The State did not directly rely in the court of appeals on the virtual-representation

doctrine. Id. at 10 (observing that despite the similarities between this case andEl Paso, the

virtual representation doctrine . . . does not map perfectly onto this case).3 Nor did the State

invoke section 37.006(b) of the Civil Practice and Remedies Code as a direct basis for

intervention. Id. at 6 (recognizing that section 37.006(b) is best interpreted as limited to

declaratory judgment actions). Instead, the State made the same arguments supporting its

Rule 60 intervention that it has made in this Court. Id. at 3-15. Despite those arguments, the

court of appeals opinion focuses almost exclusively on the virtual-representation doctrine

and rejects the States appeal largely because this is not a prototypical virtual-representation

case. Naylor, 330 S.W.3d at 438-44. This Court, by contrast, should consider the States


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4. As noted in its opening brief, the State agrees with Respondents that, generally speaking, the appropriate

standard of review on the intervention issue is abuse of discretion. See In re Lumbermens Mut. Cas. Co., 184

S.W.3d 718, 722-23 (Tex. 2006) (both a trial courts denial of intervention and a court of appeals ruling

limiting appellate rights are reviewed for abuse of discretion). However, lower courts have no

discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d

833, 840 (Tex. 1992). The question whether this Court has appellate jurisdiction given the timing of the

States appeal is a question of law over which the courts below had no discretion. If the Court determines

6

entire argument regarding intervention, confirm the States right to participate in this case

under Rule 60, and reach the merits of the States appeal. SeeStates Br. at 10-24.

B. The States Right To Intervene to Defend the Constitutionality of Texas

Law Is Not Purely a Creature of Statute.

[T]he right of the State to appear in her own courts, and prosecute suits in her own

behalf . . . is an incident of sovereignty not dependent upon any statute. State v.

Delesdenier, 7 Tex. 76, 95-96 (1851). According to Respondents, however, the State may

intervene in a private action to defend the constitutionality of Texas law only when

specifically empowered to do so by statute. Respondents claim that absent explicit statutory

authority, the State may only intervene when it could have brought the pending action, or

any part thereof, in [its] own name. Resp. Br. at 13-14 (quotingIn re Union Carbide

Corp., 273 S.W.3d 152, 155 (Tex. 2008) (per curiam). In other words, Respondents position

is that the State may neverintervene in most kinds of private litigation (including divorce

cases), even when no party to the litigation will defend the constitutionality of Texas law.

Respondents restrictive reading of Rule 60 would exclude the State from nearly all

constitutional cases except for declaratory judgment actions, in which the Attorney General

is statutorily entitled to be heard when the constitutionality of Texas law is challenged.

TEX.CIV.PRAC.&REM.CODE 37.006(b). Such a result has no basis in law or practice.4


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that it has jurisdiction, the next questionwhether the State has a justiciable interest in the case entitling it

to intervene under Rule 60is a question of law or of application of law to facts. The final

questionwhether equitable considerations counsel against the States intervention despite its justiciableinterestis a question for abuse of discretion review. The State explained at length in its brief on the merits

that equitable considerations favor its intervention. States Br. at 19-25. In response, Respondents claim

only that the States appeal would cause excessive multiplication of the issues. Resp. Br. at 20. In reality,

hearing the State's appeal would ensure the important issues in this case are decided based on any legal

principles at allrather than by an unexplained, legally baseless agreed judgment. To the extent the courts

below based their rulings on a concern for excessive multiplication of the issues, they abused their

discretion.

7

1. The State has a justiciable interest in upholding its democratically

enacted laws.

The State is uniquely injured when its democratically enacted laws are judicially

invalidated. As a result, the State has few interests more acute than its interest in defending

Texas law against constitutional attack. In many cases, lawyers representing private litigants

are properly motivated to vigorously litigate constitutional challenges to state law.

Accordingly, the State does notand as a practical matter cannotintervene in every

constitutional case. But when the constitutionality of state law is called into question, the

implicationsfrom both a legal precedent standpoint and a public perception

standpointextend beyond the rights and interests of the parties to the litigation. When the

interests of private litigants diverge from the States interests, the Attorney General is

uniquely positioned to advocate for the constitutionality of state lawfor its own sake. No

lawyer representing a private client can provide a similar service to the courts on important

constitutional matters. Indeed, any lawyer other than the Attorney General could breach

duties to the client by putting the defense of state law ahead of the clients interest.


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5. Under Respondents restrictive view of Rule 60, the State would be excluded from theMarriage of J.B.

case as well, assuming a motion to strike had been filed in the district court on that basis.

8

As a result of its unique interest in defending state law and the unique service its

participation can provide to the courts and to the law of the State, the Attorney Generals

office frequently intervenes in constitutional cases. See States Br. at 11-12 ( citing cases).

Nevertheless, Respondents claim the State can only intervene in declaratory judgment cases

governed by TEX.CIV.PRAC.&REM.CODE 37.006(b). To be sure, the State regularly

intervenes in many such cases. This is not surprising, as it has long been the case that the

Attorney Generals office must be made aware of these cases, and plaintiffs often seek to

invalidate state statutes via declaratory judgments. But the State also intervenes in non-

declaratory-judgment cases when the constitutionality of state law is at issue. See, e.g.,

Corpus Christi Peoples Baptist Church, Inc. v. Nueces County Appraisal Dist., 904 S.W.2d

621, 624 (Tex. 1995) (The Attorney General intervened [in tax enforcement case] for the

limited purpose of defending the constitutionality of section 11.433 [of the Texas Tax

Code].);In re Marriage of J.B., 326 S.W.3d at 659 (intervention in divorce action).5

Respondents reason that because the State often intervenes under section 37.006(b),

the State must lack inherent authority to intervene under Rule 60. Resp. Br. at 16-18.

Neither section 37.006(b) nor this Courts decisions support this position. Section 37.006(b)

mandates notice to the Attorney General of constitutional challenges to Texas law in

declaratory judgment cases and guarantees the Attorney General an opportunity to be heard


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6. Some courts have interpreted section 37.006(b) to require that the Attorney General be given notice and

an opportunity to be heard in anycase involving a challenge to the constitutionality of state law. See, e.g.,

Mercer v. Phillips Natural Gas Co., 746 S.W.2d 933, 940 (Tex. App.Austin 1988, writ denied) (holding

in condemnation case that under section 37.006(b), [t]he Attorney General is specifically authorized to be

made a party to any litigation involving the constitutionality of a statute). If this is correct, the Court need

not consider whether the State has a justiciable interest in constitutional cases. The only question would be

whether this case involves a constitutional attack on state law sufficient to trigger section 37006(b)s

mandatory requirements. However, section 37.006(b) is part of the Uniform Declaratory Judgments Act and

is best interpreted as limited to declaratory judgment actions. Newly enacted section 402.010 of the

Government Code, on the other hand, applies to any case in which the constitutionality of Texas law is

challenged in state court. TEX.GOVT CODE 402.010.

7. AccordDelesdenier, 7 Tex. at 95-96 ([T]he right of the State to appear in her own courts . . . is an

incident of sovereignty not dependent upon any statute.); see also Yett v. Cook, 281 S.W. 837, 842 (Tex.

1926) ([T]he state may maintain an action to . . . in general protect the interest of the people at large . . . .);

67 Tex. Jur. 3d State of Texas 97 (2005) (The state as a sovereign has the right, regardless of statutory

permission, to institute a suit in its own courts.). The States inherent authority to maintain an action in its

courts for the benefit of the people of Texas is analogous to its inherent authority to intervene when its

interests are threatened by litigation between private parties.

9

in such cases. TEX. CIV. PRAC. & REM. CODE 37.006(b).6 That the States right to

intervene in declaratory judgment cases is guaranteed by statute does not alter the States

inherent justiciable interest in defending the constitutionality of Texas law whenever it is

questioned.7

Finally, and perhaps most importantly, Respondents restrictive view of the States

authority to intervene cannot be squared with section 402.010 of the Government Code.

Enacted in 2011, section 402.010 requires courts to notify the Attorney General of

constitutional challenges in all cases. TEX.GOVT CODE 402.010(a). The new law does

not, however, purport to guarantee the Attorney General the opportunity to intervene in

response to such notice. It did not need to. As the Legislature understood, the Attorney

Generals office has inherent authority to intervene in constitutional cases under Rule 60 by

virtue of its unique justiciable interest in defending Texas law. Under Respondents view


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8. Indeed, section 402.010 specifically contemplates that the State will intervene in private litigation in

response to the notice required by the statute: [T]he states intervention in litigation in response to notice

under this section does not constitute a waiver of sovereign immunity. TEX.GOVT CODE 402.010(d).

The Legislature did not, however, provide the State with a new procedural method of intervening in response

to the required notices, because Rule 60 already provided an adequate means for the State to do so.

10

of the law, however, the Attorney General could not respond to section 402.010 notices by

intervening under Rule 60 to defend its laws, except in the highly unlikely event that the

State could have brought the action, or any part thereof, in [its] own name. Union Carbide,

273 S.W.3d at 155 (citation omitted). This would render section 402.010 little more than a

bothersome ministerial burden on both courts and the Attorney General, rather than a

guarantee that Texas law will not be constitutionally invalidated until the State has had an

opportunity to participate in the case.8 This Court should confirm what the Legislature

plainly assumed when it enacted section 402.010: The State has an inherent right to intervene

under Rule 60 when the constitutionality of Texas law is questioned.

2. This Courts Guaranty Federal and Union Carbide decisions do not

bar the State from using Rule 60 to intervene in constitutional

litigation.

Respondents quote this Courts Union Carbide decision for the proposition that the

State may only intervene under Rule 60 when it could have brought the pending action, or

any part thereof, in [its] own name. Id. To begin with, Respondents quote only half the

standard. In Union Carbide, this Courtemployed the intervention standard announced in

Guaranty Federal. Savings Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.

1990). Id. Under Guaranty Federal, a person or entity has the right to intervene [under

Rule 60] if the intervenor could have brought the same action, or any part thereof, in his own


17/33

11

name, or, if the action had been brought against him, he would be able to defeat recovery, or

some part thereof. Guar. Fed., 793 S.W. 2d at 657. Union Carbide involved an attempt by

a personal-injury plaintiff to piggy-back on another plaintiffs case by intervening under Rule

60. Union Carbide, 273 S.W.3d at 154. Accordingly, the Court quoted the intervention

standard applicable to parties who seek to add themselves as new plaintiffs. Id. Respondents

now claim this is the only standard applicable to all Rule 60 interveners, including the State

in constitutional litigation. Resp. Br. at 13-14, 16-19. This is incorrect.

The Guaranty Federalstandardunder which a prospective intervener must be able

to bring or defeat any part of the action in his own namewas formulated in the context

of litigation between private parties. It appropriately limits the category of non-parties who

may, without consultation with or permission from the original parties or the court, interject

their interests into a pending suit to which the intervenors have not been invited. Union

Carbide, 273 S.W.3d at 155. In contrast to typical would-be intervenors, the Attorney

Generals participation in constitutional cases provides a unique service to the courts and the

public by ensuring a defense of Texas law that is not clouded by a clients self-interest, rather

than a defense that may be changed or abandonedas happened herewhen it suits a

private litigant. As an intervenor, the Attorney General is opposed to whichever party

challenges Texas law, without respect to the other claims or defenses at issue. Thus, the

Attorney Generals role is often different from that of would-be plaintiffs or would-be

defendants, to whom the Guaranty Federalstandard applies. But this is no reason to exclude

the State altogether, as Respondents ask this Court to do. The Guaranty Federal standard


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9. Even if the Guaranty Federalstandard applies to the States intervention, the State need not be excluded

from constitutional litigation. When plaintiffs bring declaratory judgment actions to challenge state law on

constitutional grounds, the state official charged with enforcing the law (represented in court by the Attorney

General) is the proper defendant. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009).Thus, when parties challenge state law in the course of an otherwise non-constitutional case, they are making

a claim that could in essence have been brought against the State. In other words, if the constitutional

challenge had been brought against the State (or state officials), the State would have been the proper party

to defeat recovery, or some part thereof. Guar. Fed., 793 S.W.2d at 657. As against the party challenging

Texas law, the State is an appropriate defendant and therefore an appropriate intervenor under the Guaranty

Federal standard. This is true regardless of the nature of the lawsuit giving rise to the constitutional

challenge.

12

was not designed to apply to the State in the unique circumstances of constitutional litigation.

And it is not particularly useful when determining whether the State has a justiciable interest

in a constitutional challenge to Texas law. This Court should reject Respondents effort to

extend the rule of Guaranty Federal and Union Carbide to a circumstance it was not

designed to address.9

3. This Hearing the States appeal would not upend settled law or

violate separation of powers principles.

Respondents claim that hearing the merits of the States appeal would violate

principles of limited government and the separation of powers and run afoul of Perry v.

Del Rio, 67 S.W.3d 85 (Tex. 2001). Resp. Br. at 18-19. This concern is misplaced. Perry

holds that because the Legislature has explicit constitutional responsibility for redistricting,

the Attorney General does not have the authority to act in the Legislature's stead and dictate

the remedy in a congressional redistricting case. 67 S.W.3d at 92-94. The case was about

whospeaks for the State. The question here, by contrast, is whether the State will have any

voice at allwhen the constitutionality of its laws is questioned.


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13

Respondents cannot dispute the Attorney Generals authority to speak for the State

in constitutional litigation. Indeed, Perryconfirms that the Attorney General represent[s]

the State in civil litigation . . .[and] as the States chief legal officer, has broad discretionary

power in carrying out his responsibility to represent the State. Id. at 92 (citations omitted).

Respondents instead challenge the authority of the Statewhether represented by the

Attorney General or anyone elseto defend its laws in court when no other party will do so.

This limited view of the States authority lacks any basis in the law. As the Legislature

recently confirmed with the passage of TEX.GOVT CODE 402.010 and as no court in this

State has ever disputed, the right of the State to appear in her own courts . . . is an incident

of sovereignty not dependent upon any statute. Delesdenier, 7 Tex. at 95-96. Permitting

the State to intervene under Rule 60 based on its justiciable interest in upholding the

constitutionality of Texas law would not judicially expand the Executives power. Resp.

Br. at 18. It would simply confirm existing law.

C. This Case Implicates the States Justiciable Interest in Defending Texas

Law Against Constitutional Attack.

In defiance of the record, Respondents contend that this case involves no challenge

to the constitutionality of Texas law. Resp. Br. at 18. In reality, from the outset of the case

and continuing through the filings in this Court, this case has always amounted to a

constitutional attack on Texass traditional marriage laws. To begin with, in light of the

constitutional litigation going on all over the country on the same-sex marriage issue, the

mere filing of a same-sex divorce petition in Texas court is an implicit attack on the multiple


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10. See In the Matter of the Marriage of J.B. & H.B., No. 09-01074-U3, Order (302nd Dist. Ct., Dallas

County, Tex. Oct. 1, 2009) (declaring that Texas laws prohibiting same-sex divorce violate the Fourteenth

Amendment to the U.S. Constitution).

14

provisions of Texas law that bar courts from treating same-sex couples like validly married

couples. The district court recognized as much, repeatedly remarking on the interesting

constitutional issues in the case and worrying that it could not properly consider its

jurisdiction without full briefing and argument on constitutional issues. E.g., RR2:22-24.

The constitutional attack in this case is not merely an implicit one, however. Every

time they have had the opportunity to do so, Respondents have asked the courts to invalidate

Texass marriage laws on constitutional grounds. And contrary to Respondents

characterization of the record, the constitutional arguments beganbeforethe State intervened.

One day before the court abruptly granted a divorceand two days before the State

intervenedNaylors counsel offered the court a brief arguing that Texas laws barring same-

sex divorce are unconstitutional. RR2:19-21. This was the first attempt Naylor made to

defend the legal basis for her novel divorce claim. According to the reporters record, the

brief made Full Faith and Credit arguments against Texas law and cited the constitutional

ruling issued by a Dallas County judge (and later reversed by the Fifth Court of Appeals).10

RR2:17-21. The brief is not contained in the clerks record, but not because Naylor

withdrew her argument. Rather, the district court ordered the parties to agree to a briefing

schedule on the very important constitutional issues, obviating the need for Naylor to

submit her constitutional arguments that day. RR2:22-24.


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11. Notably, the case was uncontested for just one day before the State intervened. Daly suddenly

abandoned her argument that the marriage was voidand the court suddenly abandoned its concern about

very important constitutional issues, none of which ha[d] been fully briefedon the afternoon ofFebruary 10, 2010. RR2:22, 3:72, 3:101. The State intervened the next day. CR240-50.

12. Unlike theMarriage of J.B. case, the district courts judgment does not mention constitutional issues.

CR404-25. Of course, the State did not know when it intervened whether the district court would follow the

lead of the court inMarriage of J.B. and explicitly declare Texass marriage laws unconstitutional. See In

the Matter of the Marriage of J.B. & H.B., No. 09-01074-U3, Order (302nd Dist. Ct., Dallas County, Tex.

Oct. 1, 2009) (declaring that Texas laws prohibiting same-sex divorce violate the Fourteenth Amendment

15

The States intervention did not inject constitutional issues into the case. To the

contrary, it merely required Respondents to explain in writing the legal basis for their

groundbreaking same-sex divorce claim. Respondents emphasize the uncontested nature

of the case prior to the States intervention and characterize the outcome below as simply an

agreed judgment between two private individuals. Resp. Br. at 8. But parties are not

entitled to relief from the courts simply because they agree between themselves that they

would like to have it. Even agreed judgments must be supported by a viable legal theory

entitling the parties to relief.11 As the State correctly anticipated prior to intervening, when

asked to explain the legal basis for their entitlement to the relief they seek from the courts,

the parties confirmed what was already reflected in the record: One of the primary legal

theories underlying their divorce claim is that Texass traditional marriage laws are

unconstitutional. Respondents now ask this Court to exclude the State from the case simply

because they did not make their constitutional attack in a written, filed submission until after

the State intervened. But the timing of Respondents constitutional arguments does not

change the constitutional nature of the case or cut off the States right to intervene to defend

its laws against an obvious constitutional attack.12


22/33

to the U.S. Constitution). That the district court refrained from doing so, and instead provided no legal

explanation for its groundbreaking ruling, does not extinguish the States justiciable interest in the case.

16

After the States intervention, Respondents have repeatedly confirmed that their

divorce claim includes an attack on the constitutionality of Texas law. SeeCR366-69

(Naylors Resp. to the States Plea to the Jurisdiction making Fourteenth Amendment and

Full Faith and Credit arguments); Appellee Naylors Br. at 30-47, State v. Naylor, No.

031000237CV (Tex. App.Austin Sep. 30, 2010); Resp. Br. at 31-49. Despite their

desire to exclude the State and shield the judgment below from judicial scrutiny by claiming

this is not a constitutional case, Respondents dare not abandon their constitutional arguments.

Texas law plainly prohibits same-sex divorce, so the only way to defend a same-sex divorce

decree is to attack the laws constitutionality. But Respondents cannot have their cake and

eat it too by claiming this is not a constitutional case while also claiming that Texass

traditional marriage laws are unconstitutional.

In sum, the constitutional implications of this case are undeniable, the record reflects

constitutional attacks on Texas law at all stages of this litigation, and none of the original

parties to the case will defend state law. The State therefore has a clear justiciable interest

in this case, which entitled it to intervene under Rule 60.

III. GRANTING A DIVORCE TO A SAME-SEX COUPLE VIOLATED THE TEXAS

CONSTITUTION AND FAMILY CODE.

Respondents cannot avoid the fact that granting a divorce to a same-sex couple

give[s] effect to a . . . right or claim to a[] legal protection, benefit, or responsibility asserted

as a result of a marriage between persons of the same sex. TEX.FAM.CODE 6.204(c)(2).


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17

A divorce petition is unquestionably a claim to a[] legal protection, benefit, or responsibility

asserted as a result of a marriage. Id. And granting such a petitionindeed, even

exercising jurisdiction over itunquestionably give[s] effect to the claim, in violation of

the Family Code. It is difficult to imagine how the Legislature could have made its intentions

clearer, short of explicitly outlawing same-sex divorces. Indeed, Respondents contend that

their divorce can be affirmed because section 6.204 says nothing about divorce. Resp. Br.

at 27. But section 6.204(c) does not outlaw anyparticularright or claim asserted as a result

of a same-sex marriage. It outlaws allsuch rights and claims. Rather than attempt to list all

the ways in which parties might one day attempt to achieve recognition of their same-sex

marriages in Texasan impossible taskthe statute prohibits all recognition of same-sex

marriages and all rights and claims based on them. The Legislature correctly anticipated

effortssuch as this caseto force recognition of out-of-state same-sex marriages in Texas.

It carefully worded section 6.204 to prevent government actors from evading the Texas

Constitutions clear definition of marriage by treating same-sex marriages like valid

marriages, which is exactly what Respondents ask this Court to do.

Respondents refuse to recognize that divorce does not just end a marriage. It also

enforces the property rights of marriage through community property division and spousal

maintenance. Divorce proceedings also provide many other rights that the law reserves for

validly married couples. SeeStates Br. at 36. Indeed, divorce is the most common way in

which courts are asked to enforce the legal rights and obligations of the marriage

relationship. The question in this case is whether, when it comes to divorce, the out-of-state


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13. Respondents attempt to distinguishMireles v. Mireles, No. 01-08-00499-CV, 2009 WL 884815 (Tex.

App.Houston [1st Dist.] Apr. 2, 2009, pet. denied), because that case did not involve a same-sex couple

that had obtained a marriage in another state. Resp. Br. at 24 n.18. But section 6.204 plainly applies to

same-sex marriages entered into in this state or in any other jurisdiction. TEX.FAM.CODE 6.204(c).

Given the plain language of section 6.204, the validity of Respondents marriage under Massachusetts law

has no effect on the analysis.

18

marriages of same-sex couples entail the same legal rights and obligations as valid marriages.

That question is easily answered: Out-of-state same-sex marriages have no legal consequence

at all under Texas law. SeeTEX.FAM.CODE 6.204(c). As a result, the divorce decree must

be reversed.

Respondents contention that courts can presume the validity of an alleged marriage,

even when they know the marriage to be void, defies logic and lacks any legal support. Resp.

Br. at 31. Respondents cite no cases, and none exist, to support the counterintuitive idea that

courts can knowingly grant divorces to parties to invalid marriages. Respondents vigorously

defend the district courts exercise of jurisdiction over the divorce claim, but they offer no

coherent legal theory supporting the district courts decision to actually granta divorce. As

explained in the States opening brief, and as two courts of appeals have held, Texas courts

lack jurisdiction over same-sex divorce cases. SeeStates Br. at 19-24.13 This Court should

confirm these holdings. But in this case, the district court did not just improperly exercise

jurisdiction over Naylors divorce claim; it granted a same-sex divorce. CR404-06.

Whatever the Court thinks of the jurisdictional question, granting a divorce to two women

violates article I, section 32 of the Texas Constitution and multiple provisions of the Family


25/33

14. In holding that lack of personal jurisdiction is not an absolute bar to granting a divorce, this Court inDawson-Austinrelied on the U.S. Supreme Courts decision in Estin v. Estin, 334 U.S. 541, 547 (1948).

UnderEstin, a state has the power to guard its interest in [its domiciliaries] by changing or altering their

marital status and by protecting them in that changed status throughout the farthest reaches of the nation.

Id. at 546. Estin also confirms the exacting full faith and credit due state court judgments dissolving

marriages. Id. at 546. Under these principles, a judgment of a Texas court dissolving an out-of-state same-

sex marriage through a suit to declare the marriage void is binding throughout the nation. SeeStates Br. at

31-33.

19

Code. SeeStates Br. at 26-28 (citing TEX.CONST. art I, 32, TEX.FAM.CODE 6.001,

6.204(b), (c)(1), (c)(2), 6.307).

With respect to the jurisdictional question, Respondents claim that courts can exercise

jurisdiction to grant a divorce, even if they lack jurisdiction to divide property. Resp. Br. at

25 (citing Dawson-Austin v. Austin, 968 S.W.2d 319, 324 (Tex. 1998)). Respondents

confuse personal jurisdiction with subject matter jurisdiction. InDawson-Austin, this Court

held that lack ofpersonaljurisdiction over the respondent prevented the court from dividing

marital property but did not prevent the court from granting a divorce. 14 Lack of subject-

matterjurisdiction over the entire divorce petition, by contrast, prevents the court from taking

any action on the basis of the petition. See In re Marriage of J.B., 326 S.W.3d at 664 (If a

trial court were to exercise subject-matter jurisdiction over a same-sex divorce petition, even

if only to deny the petition, it would give that petition some legal effect in violation of

section 6.204(c)(2).).

Respondents argue that the court has jurisdiction because it must take as true

Naylors allegation of a valid marriage. Resp. Br. at 24. But Naylors pleadings allege a

same-sex marriage, not a valid marriage. Her divorce petition did not explicitly state that

both parties are female, but this was unnecessary. The parties SAPCR, filed before the


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15. In complaining that the States view would upend[] a century of Texas divorce law, Respondentsmisunderstand the States position. Resp. Br. at 23-25. The States position is not that courts lack subject-

matter jurisdiction over a divorce action any time the alleged marriage turns out to have been invalid. If the

petition, on its face, refutes standing, then of course there is no subject-matter jurisdiction. But apart from

that, the invalidity of a marriage does not deprive the court of divorce jurisdiction, except in the unique

circumstances of section 6.204, which requires courts to decline to exercise jurisdiction over divorce suits

involving same-sexmarriages. Respondents cannot legitimately complain that a jurisdictional bar on same-

sex divorce suitssuits which were completely unthinkable until very recentlyupends a century of Texas

divorce law.

16. There is nothing unusual or improper about a possible need for minimal fact-finding at the jurisdictional

stage. It is well-settled that because a court must not act without determining that it has subject-matter

jurisdiction to do so, it should hear evidence as necessary to determine the issue before proceeding with thecase. Bland, 34 S.W.3d at 554. In practice, courts hearing divorce actionsas in any other caseare

entitled to rely on plaintiffs good faith allegations . . . to determine the trial courts jurisdiction. Frost

Natl Bank v. Fernandez, 315 S.W.3d 494, 503 (Tex. 2010). If, however, the court suspects the allegations

have not been made in good faith, it should make inquiries to determine its jurisdiction. If this Court clarifies

the law and rules out any possibility of a same-sex divorce in Texas, very few parties will attempt to

circumvent this Courts ruling by seeking a same-sex divorce in the future. The burden on courts in terms

of jurisdictional fact-finding will be minimal, if it is felt at all.

20

divorce petition under the same cause number, alleged that both parties are the mother of

the child. CR6. Thus, the pleadings in the case, taken as true, defeat any claim that a valid

marriage ever existed between Respondents.

Naylors lack of standing deprives the court of jurisdiction. See Bland Indep. School

Dist. v. Blue, 34 S.W.3d 547, 553 (Tex. 2000) (Standing is a prerequisite to subject-matter

jurisdiction . . .). But even if lack of standing were not apparent on the face of the

pleadings, a court would lack jurisdiction over any same-sex divorce petition due to TEX.

FAM.CODE 6.204.15 Respondents worry that future parties will conceal the same-sex

nature of their relationships, forcing courts to conduct fact-finding to determine whether they

have jurisdiction. Resp. Br. at 28-29.16But if this Court confirms that same-sex divorce suits

can never be entertained in a Texas court, any lawyer or litigant who later attempted to trick

a court into unknowingly granting a same-sex divorce would be subject to severe censure.


27/33

21

This Court should not make exceptions to section 6.204 to accommodate hypothetical parties

who may some day try to abuse the court system in such a way.

IV. FOLLOWING TEXAS LAW BY REVERSING THE DIVORCE DECREE WOULD NOT

VIOLATE THE U.S.CONSTITUTION.

Respondents insist that this case is about divorce, not marriage. Resp. Br. at 31-32.

On a very superficial level, that is true. But as a constitutional matter, the States interests

in marriageand its reasons for limiting the rights of marriage to unions of one man and one

womanare inseparable from its interests in divorce. The States fundamental interest in

promoting procreation and the rearing of children by both their parents is served by creating

marriages and providing validly married couples with special rights and enforcement

mechanisms, including divorce and its attendant protections. Important marital rights such

as community property and spousal maintenance encourage families to stay together and

attempt to ensure that dependent spouses and children will be provided for when families

break up. Though these rights are inseparable from divorce proceedings, they are rights of

marriage, not rights of divorce. Indeed, divorce itself is a right of marriage, available only

to lawfully married couples. If the State has no rational basis on which to distinguish

between same-sex couples and male-female couples when it comes to divorce, it also has no

rational basis on which to distinguish between them when it comes to marriage either.

Respondents accuse the State of only treating people equally when equal treatment

furthers its interests. Resp. Br. at 38. But any time the State allocates legal rights, it

necessarily draws distinctions between groups of people. The question on rational basis


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17. Respondents citation of Bonds v. Foster, 36 Tex. 68 (1871), only begs the Fourteenth Amendment

question. In Bonds, this Court concluded that laws against interracial marriage violated the FourteenthAmendment. Id. Bonds says nothing about same-sex marriage. It certainly does not, as Respondents

incorrectly claim, hold that the Fourteenth Amendment requires Texas to recognize all marriages legally

created in another state. Resp. Br. at 34. If it had, it would conflict with the federal Defense of Marriage

Act and U.S. Supreme Court precedent, both of which confirm the right of states to decline recognition to

marriages that violate their public policy. See28 U.S.C. 1738C;Loughran v. Loughran, 292 U.S. 216, 223

(1934) (Marriages not polygamous or incestuous, or otherwise declared void by statute, will, if valid by the

law of the state where entered into, be recognized as valid in every other jurisdiction.) (emphasis added)).

22

review is whether the unavoidable distinctions the State must draw are based on rational

principles, rather than a result of arbitrary classification. Engquist v. Oregon Dept. of Agr.,

553 U.S. 591, 601 (2008). Not everyone is eligible for Medicaid, or student loans, or

property tax exemptionsor to get divorced. Nearly all statutory rights are limited to a

certain class of people for whom the right was designed. In the case of divorce, only validly

married couples are eligible, because the Legislature determined that validly married couples

are uniquely deserving of the special support and enforcement associated with the legal

institution of marriage and its judicial dissolution mechanism. When allocating rights

designed to promote responsible procreation and the raising of children by both their parents,

it is eminently reasonable to distinguish between male-female couples, who can and do

procreate, and same-sex couples, who by definition cannot. As a result, the State is not

required to treat same-sex couples just like male-female couples when it comes to marriage

and its attendant rights, including divorce.17

Respondents claim that gays and lesbians have been relegated to such a position of

political powerlessness as to command extraordinary protection from the majoritarian

political process, i.e., strict scrutiny. Resp. Br. at 41. But Respondents only evidence for


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18. As the State explained in its brief on the merits that there is no fundamental right to same-sex divorce.

States Br. at 46-48. Respondents also claim a right to be heard with respect to the dissolution of their

marriage. Resp. Br. at 43-46. Even if same-sex couples did have a constitutional right to have their

out-of-state marriages terminated by their state of residence (they do not), Texass provision of voidance

achieves that result. It terminates the marriage and provides the parties with the right to be heard that they

seek. Of course, if this case were truly about dissolving a marriage, and not about advancing same-sex

marriage rights more generally, Respondents would already have sought a declaration of voidance.

19. The right to travel has been described by the Supreme Court in three ways: [1] the right of a citizen

of one State to enter and to leave another State, [2] the right to be treated as a welcome visitor rather than

an unfriendly alien when temporarily present in the second State, and [3] for those travelers who elect to

become permanent residents, the right to be treated like other citizens of that State. Saenz v. Roe, 526 U.S.

489, 500 (1999). Only the third element of the right is conceivably implicated here. Because Texas law

treats Respondents just like any other same-sex couple in Texas, the right-to-travel analysis should end there.

23

this far-reaching conclusion is Texas voters decision to uphold the traditional definition of

marriage. Id. Their reasoning appears to be that because some parts of the country have not

fully embraced every aspect of the gay rights political project, homosexuals must be

politically powerless. But they also argue that developments in the law are trending rapidly

toward advancement of the gay rights agenda. Id. at 32-34. And they are right about this.

Whether one considers the many recent lower-court rulings finding a right to same-sex

marriage, see id., or the recent repeal of the U.S. militarys Dont Ask, Dont Tell policy,

the remarkable rate at which the gay rights movement has recently succeeded in advancing

its agenda belies any attempt to claim gays and lesbians are politically powerless. Because

there is no suspect class involved and no fundamental right at stake, see States Br. at 43

n.29, 46-48, rational basis review applies. LeClerc v. Webb, 419 F.3d 405, 421 (5th Cir.

2005).18

Texass marriage laws do not interfere with Respondents right to travel.19

Respondents seem to think the right to travel entitles them to be treated like Texans who are


30/33

20. See Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 911-12 (1986) (invalidating law restricting civil

service preferences to veterans who were New York citizens before they joined the military);Meml Hosp.

v. Maricopa County, 415 U.S. 250, 269-70 (1974) (invalidating law restricting access to county hospital to

those who had resided in Arizona longer than one year); Saenz, 526 U.S. at 506 (invalidating California law

limiting welfare benefits available to newly arrived residents).

24

legally married (i.e., male-female couples), rather than like Texan same-sex couples. Resp.

Br. at 42-43. But this is merely a creative restatement of the equal protection argument. In

all the right-to-travel cases Respondents cite, the state laws at issue expressly disadvantaged

new residents as compared to similarly situated long-term residents, thereby discouraging

migration.20 Texass marriage laws bear no resemblance to measures that discriminate

against new residents or favor long-term residents. Texas law treats all same-sex couples

alike, regardless of how long they have lived in Texas. The right to travel prohibits states

frompenalizingnew residents becausethey are new residents. See Maricopa County, 415

U.S. at 258. It does not prohibit states from treating all similarly situated citizens alike, no

matter how long they have resided in the state, which is what Texass marriage laws do.

Citing law review articles but no cases, Respondents proffer a novel interpretation of

the Full Faith and Credit Clause, under which not even Congress can make exceptions to a

rigid rule requiring all states to give recognition to same-sex marriages created in other states.

Resp. Br. at 47-49. But the Supreme Court has rejected this view of the Clause. The Court

has long held that Full Faith and Credit . . . does not . . . enable one state to legislate for the

other or to project its laws across state lines so as to preclude the other from prescribing for

itself the legal consequences of acts within it.Nevada v. Hall, 440 U.S. 410, 423-24 (1979)

(quoting Pac. Employers Ins. Co. v. Indus. Accident Commn, 306 U.S. 493, 504-05 (1939)).


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Nor is there any authority which lends support to the view that the full faith and credit

clause compels the courts of one state to subordinate the local policy of that state, as respects

its domiciliaries, to the statutes of any other state. Williams v. North Carolina, 317 U.S.

287, 296 (1942). In sum, the Full Faith and Credit Clause does not require a State to apply

another States law in violation of its own legitimate public policy. Hall, 440 U.S. at 422.

As a result, Texas has no obligation, constitutional or otherwise, to recognize an out-of-state

same-sex marriage for any reason, because such a marriage is contrary to the public policy

of this state and is void in this state. TEX.FAM.CODE 6.204(b).

PRAYER

The State respectfully requests that the Court grant the petition for review, reverse the

judgment of the court of appeals, permit the States intervention, and render judgment

dismissing the divorce petition for want of jurisdiction. The Court should decline

Respondents request to remand the case. If the States intervention is allowed, the

remaining issues are pure questions of statutory interpretation and constitutional law. To

avoid unnecessary delay, the Court should resolve these issues of law rather than

remanding them to the court of appeals. Frost Natl Bank, 315 S.W.3d at 508; TEX.R.APP.

P. 60.2(c).


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Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

DANIEL T. HODGEFirst Assistant Attorney General

BILL COBB

Deputy Attorney General for Civil Litigation

JONATHAN F. MITCHELL

Solicitor General

/s/ James D. Blacklock

JAMES D. BLACKLOCK

Assistant Solicitor General

State Bar No. 24050296

OFFICE OF THE ATTORNEY GENERAL

P. O. Box 12548


[Tel.] (512) 936-8160

[Fax] (512) 474-2697

[email protected]

COUNSEL FOR PETITIONER


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CERTIFICATE OF SERVICE

I certify that on November 1, 2011, a true and correct copy of the foregoing document

was served on the following appellate counsel via CaseFileXpress File & Serve and/or U.S.

Certified Mail, Return Receipt Requested:

James J. Scheske

AKIN GUMP STRAUSS HAUER FELD

LLP

300 West 6th Street

Suite 2100


(512) 499-6200

Counsel for Respondent

Jennifer R. Cochran

THE LAW OFFICE OF JENNIFER R.

COCHRAN

13062 Hwy 290 West

Suite 201

Austin, Texas 78737

Ph: (512) 685-3584

Counsel for Respondent

Robert B. Luther

LAW OFFICES OF ROBERT B.LUTHER,P.C.

919 Congress

Suite 450

Austin, Texas 78701

Ph: (512) 477-2323

Counsel for Respondent Sabina Daly

/s/ James D. Blacklock

JAMES D. BLACKLOCK

Documents

Naylor v. Daly State's Reply Brief on the Merits - 11 012011