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 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
jimmy.blacklock@oag.state.tx.us
COUNSEL FOR PETITIONER
FILED
IN THE SUPREME COURT
OF TEXAS
11 September 19 P5:11
BLAKE. A. HAWTHORNE
CLERK
i
IDENTITY OF PARTIES AND COUNSEL
Petitioner
The State of Texas
Counsel for Petitioner
James D. Blacklock
Assistant Solicitor General
State Bar No. 24050296
OFFICE OF THE ATTORNEY GENERAL
P. O. Box 12548
Austin, Texas 78711-2548
Tel: (512) 936-8160
Fax: (512) 474-2697
jimmy.blacklock@oag.state.tx.us
Respondents
Angelique S. Naylor and Sabina Daly
Counsel for Respondents
Appellate Counsel for Trial and Appellate Counsel
Respondent Angelique Naylor for Respondent Sabina Daly
James J. Scheske
AKIN GUMP STRAUSS
HAUER & FELD LLP
300 West 6th Street
Suite 2100
Austin, Texas 78701-3911
Tel: (512) 499-6200
Trial Counsel for
Respondent Angelique Naylor
Jennifer R. Cochran
THE LAW OFFICE OF JENNIFER R.
COCHRAN
13062 Hwy 290 West
Suite 201
Austin, Texas 78737
Tel: (512) 685-3584
Robert B. Luther
LAW OFFICES OF
ROBERT B. LUTHER, P.C.
919 Congress
Suite 450
Austin, Texas 78701
Tel: (512) 477-2323
ii
TABLE OF CONTENTS
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
I. The State Should Be Allowed to Intervene to Prevent Litigants and
Judges from Using Agreed Judgments to Subvert the States
Constitutional Prohibition on Recognizing Same-Sex Marriages . . . . . . . 10
A. The State Has a Well-Recognized, Justiciable Interest in
Defending Its Laws When Their Constitutionality Is Questioned,
and That Interest Entitles the State to Intervene Post-Judgment
in This Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. Both Explicitly and Implicitly, This Case Involves a
Constitutional Challenge to Texas Law, Which Triggers the
States Right to Intervene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C. The Timing of the States InterventionOne Day After the
Parties and the Court Abruptly Changed Course and Agreed to
a DivorceIs Not an Absolute Bar to This Appeal . . . . . . . . . . . . 17
D. Equitable Considerations Governing Intervention Weigh in
Favor of Allowing the State to Participate in This Case . . . . . . . . 19
II. The District Courts Void Divorce Decree Should Be Vacated and the
Divorce Petition Should Be Dismissed for Lack of Jurisdiction . . . . . . . . 25
A. The Texas Constitution and Family Code Prohibit Same-Sex
Divorces in at Least Five, Independent Ways . . . . . . . . . . . . . . . . 26
iii
B. The Court of Appeals Attempt to Harmonize a Same-Sex
Divorce Decree with Texas Law Ignores the Text of Section
6.204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
C. A Suit to Declare the Marriage Void Is the Proper Legal
Mechanism for Dissolving an Out-of-State Same-Sex Marriage
in Texas Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
1. A judgment in a suit to declare the marriage void would
be enforceable in all fifty states . . . . . . . . . . . . . . . . . . . . . . 31
2. A suit to declare the marriage void provides for property
division and other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
D. Texas Courts Lack Jurisdiction Over Suits for Same-Sex
Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
III. Texass Traditional Marriage Laws Are Consistent with the U.S.
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
A. Baker v. Nelson Forecloses Any Claim of a Constitutional
Entitlement to Same-Sex Divorce . . . . . . . . . . . . . . . . . . . . . . . . . 41
B. Texass Provision of the Rights of MarriageIncluding
DivorceOnly to the Union of One Man and One Woman Does
Not Violate the Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . 43
1. Texas law does not violate the Equal Protection Clause . . . 43
2. There is no fundamental due process right to same-sex
divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3. The Full Faith and Credit Clause does not require Texas
to grant same-sex divorces . . . . . . . . . . . . . . . . . . . . . . . . . 48
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
iv
INDEX OF AUTHORITIES
Cases
Adams v. Howerton,
486 F. Supp. 1119 (C.D. Cal. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Andersen v. King County,
138 P.3d 963 (Wash. 2006) (en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Aucutt v. Aucutt,
62 S.W.2d 77 (Tex. 1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Baker v. Gen. Motors Corp.,
522 U.S. 222 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33, 49
Baker v. Nelson,
409 U.S. 810 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 46
Boddie v. Connecticut,
401 U.S. 371 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47
Citizens for Equal Prot. v. Bruning,
455 F.3d 859 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 44-46
City of DeSoto v. White,
288 S.W.3d 389 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Corpus Christi Peoples Baptist Church, Inc. v. Nueces County Appraisal Dist.,
904 S.W.2d 621 (Tex. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Dean v. Goldwire,
480 S.W.2d 494 (Tex. App.Waco 1972, writ refd n.r.e.) . . . . . . . . . . . . . . . . 33
Doe v. Hodgson,
478 F.2d 537 (2d Cir. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Engquist v. Oregon Dept of Agric.,
553 U.S. 591 (2008) (emphasis added) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-44
v
Esparza v. Esparza,
382 S.W.2d 162 (Tex. Civ. App. Corpus Christi 1964, no writ) . . . . . . . . . . . 34
Faglie v. Williams,
569 S.W.2d 557 (Tex. Civ. App.Austin 1978, writ refd n.r.e.) . . . . . . . . . . . . 34
FCC v. Beach Commcns, Inc.,
508 U.S. 307 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
First Alief Bank v. White,
682 S.W.2d 251 (1984) (orig. proceeding) (per curiam) . . . . . . . . . . . . . . . . . . . 17
Gill v. Office of Pers. Mgmt.,
699 F. Supp. 2d 374 (D. Mass. 2010) (mem. op.) . . . . . . . . . . . . . . . . . . . . . . . . 43
Gray v. Gray,
354 S.W.2d 948 (Tex. Civ. App.Houston 1962, writ dismd) . . . . . . . . . . . . . 29
Guaranty Fed. Savings Bank v. Horseshoe Operating Co.,
793 S.W.2d 652 (Tex.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17
Heller v. Doe,
509 U.S. 312 (1993) (citation omitted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Henry Schein, Inc.v. Stromboe,
102 S.W.3d 675 (Tex. 2002) (citations omitted) . . . . . . . . . . . . . . . . . . . . . . . . . 20
Hernandez v. Robles,
26 A.D.3d 98 (N.Y. App. Div. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Hicks v. Miranda,
422 U.S. 332 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
High Tech Gays v. Defense Indus. Secy Clearance Office,
895 F.2d 563 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Hovious v. Hovious,
No. 02-04-169-CV, 2005 WL 555219
(Tex. App.Fort Worth Mar. 10, 2005, pet. denied) (mem. op.) . . . . . . . . . 31, 33
vi
In re Kandu,
315 B.R. 123 (Bankr. W.D. Wash. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 46
In re Lumbermens Mut. Cas. Co.,
184 S.W.3d 718 (Tex. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 17-19, 21, 24
In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. App.Dallas 2010, pet. filed) . . . . . . . . . . . . . . . . . passim
In re Tex. State Silica Prods. Liab. Litig.,
No. 2004-70000 (333rd Dist. Ct., Harris County, Tex. Oct. 27, 2008) . . . . . . . . 12
In re Union Carbide Corp.,
273 S.W.3d 152 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Isbill v. Stovall,
92 S.W.2d 1067 (Tex. Civ. App.Eastland 1936, no writ.) . . . . . . . . . . . . . . . . 27
Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Johnson v. Robison,
415 U.S. 361 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
K.D.F. v. Rex,
878 S.W.2d 589 (Tex.1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Langan v. St. Vincents Hosp. of N.Y.,
25 A.D.3d 90 (N.Y. App. Div. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Lawrence v. Texas,
539 U.S. 558 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 44
Littleton v. Prange,
9 S.W.3d 223 (Tex. AppSan Antonio 1999, pet. denied) . . . . . . . . . . . . . . . . . 42
Lofton v. Secy of Dept of Children & Family Servs.,
358 F.3d 804 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Loughran v. Loughran,
292 U.S. 216 (1934) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
vii
Loving v. Virginia,
388 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 46
Mandel v. Bradley,
432 U.S. 173 (1977) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Massachuetts v. USDHHS,
698 F. Supp. 2d 234 (D. Mass. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
McConnell v. Nooner,
547 F.2d 54 (8th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Mendez v. Brewer,
626 S.W.2d 498 (Tex. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Mireles v. Mireles,
No. 01-08-00499-CV, 2009 WL 884815
(Tex. App.Houston [1st Dist.] Apr. 2, 2009,
pet. denied) (mem. op.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv, 22, 26, 35
Morrison v. Sadler,
821 N.E.2d 15 (Ind. Ct. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 44, 46
Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Assn,
1 S.W.3d 108 (Tex. 1999) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19
Narvaez v. Maldonado,
127 S.W.3d 313 (Tex. AppAustin 2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . . 38
Penson v. Ohio,
488 U.S. 75 (1988) (citation omitted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Perry v. Schwarzenegger,
704 F. Supp. 2d. 921 (N.D. Cal. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Peters v. Peters,
214 N.W.2d 151 (Iowa 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Polk County v. Dodson,
454 U.S. 312 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
viii
Romer v. Evans,
517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Ross v. Goldstein,
203 S.W.3d 508 (Tex. App.Houston [14th Dist.] 2006, no pet.) . . . . . . . . . . . 27
Ross v. Marshall,
426 F.3d 725 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Smelt v. County of Orange,
374 F. Supp. 2d 861 (C.D. Cal. 2005) affd in part,
vacated in part on other grounds by 447 F.3d 673 (9th Cir. 2006) . . . . . 43, 46, 47
Sosna v. Iowa,
419 U.S. 393 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
State v. Hodges,
92 S.W.3d 489 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State v. Naylor,
330 S.W.3d 434 (Tex. App.Austin 2011, pet. filed & mand. pending) . . passim
Subaru of Am., Inc. v. David McDavid Nissan, Inc.,
84 S.W.3d 212 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Sutton v. Leib,
342 U.S. 402 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32
Tex. Assn of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440 (Tex. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Tex. Mut. Ins. Co. v. Ledbetter,
251 S.W.3d 31 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19
Washington v. Glucksberg,
521 U.S. 702 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48
ix
Watson v. Harrison County Hosp. Assn,
No. 2:08-cv-00081 (TJW-CE) (E.D. Tex. June 13, 2008) . . . . . . . . . . . . . . . . . . 12
Williams v. North Carolina,
325 U.S. 226 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) . . . . . . . . . . . . . . . . . . . . 42, 44, 46, 47, 49
Wilson v. Andrews,
10 S.W.3d 663 (Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Zeifman v. Michels,
229 S.W.3d 460 (Tex. App.Austin 2007, pet. denied) . . . . . . . . . . . . . 11, 12, 20
Constitutional Provisions, Statutes, and Rules
U.S. CONST. art. IV, 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 49
TEX. CONST. art I, 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 26, 29, 42
TEX. CONST. art. I, 32(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
TEX. CONST. art. IV, 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TEX. CONST. art. V, 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
28 U.S.C. 1257 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
28 U.S.C. 1738C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
TEX. CIV. PRAC. & REM. CODE 37.006(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
TEX. FAM. CODE 1.003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
TEX. FAM. CODE 3.404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
TEX. FAM. CODE 6.001-6.008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
x
TEX. FAM. CODE 6.001-6.802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TEX. FAM. CODE 6.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27, 29, 38
TEX. FAM. CODE 6.102-6.111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TEX. FAM. CODE 6.201-6.206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TEX. FAM. CODE 6.201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TEX. FAM. CODE 6.202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TEX. FAM. CODE 6.204(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 26, 29, 31, 50
TEX. FAM. CODE 6.204(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 30, 38, 39
TEX. FAM. CODE 6.204(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 28, 29, 36
TEX. FAM. CODE 6.205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TEX. FAM. CODE 6.206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TEX. FAM. CODE 6.301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
TEX. FAM. CODE 6.307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 28, 31
TEX. FAM. CODE 6.307(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TEX. FAM. CODE 6.501(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
TEX. FAM. CODE 6.505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
TEX. FAM. CODE 6.701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
TEX. FAM. CODE 6.707 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
TEX. FAM. CODE 7.001-7.009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
TEX. FAM. CODE 45.105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
TEX. FAM. CODE 103.002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
xi
TEX. FAM. CODE 153.003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
TEX. GOVT CODE 22.001(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv
TEX. GOVT CODE 22.001(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv
TEX. GOVT CODE 22.001(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv
TEX. GOVT CODE 402.010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
TEX. R. APP. P. 56.1(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv
TEX. R. APP. P. 56.1(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv
TEX. R. APP. P. 56.1(a)(5)-(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv
TEX. R. CIV. P. 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 17
Other Authorities
16 TEX. JUR. 3d Courts 1 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Act of May 24, 2011, 82d Leg., R.S., ch. 808,
2011 Tex. Gen. Laws 1871 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Baker v. Nelson,
Jurisdictional Statement, No. 71-1027 (Oct. Term 1972) . . . . . . . . . . . . . . . . . . . 41
C. Wright, LAW OF FEDERAL COURTS 495 (2d ed. 1970) . . . . . . . . . . . . . . . . . . . . . . . . 42
In the Matter of the Marriage of J.B. and H.B.,
No. DF-09-1074 (302nd Dist. Ct., Dallas Co., Tex. Oct. 1, 2009) . . . . . . . . . . 4, 13
In the Matter of the Marriage of R.S. and J.A.,
No. F-185,063 (279th Dist. Ct., Jefferson Co., Tex. Mar. 31, 2003) . . . . . . . . 4, 13
1. References to the Clerks Record appear as CR[page number].
2. References to the Reporters Record appear as RR[volume number:page number].
xii
STATEMENT OF THE CASE
Nature of the Case: Angelique Naylor sued Sabina Daly for divorce. CR91-
102.
1
Daly moved to dismiss for lack of jurisdiction and
asked the court to declare the marriage void. CR104-06.
When the State learned that Daly had abandoned her
arguments and that the court intended to grant a divorce,
the State immediately intervened. CR240-50. Daly
moved to strike the States intervention. CR251-55. The
State filed a plea to the jurisdiction. CR270-78. Naylor
responded, arguing that the Family Code permits same-
sex divorce and that the U.S. Constitution requires that
same-sex divorces be granted. CR364-78.
Trial Court: 126th District Court, Travis County,
The Honorable Scott Jenkins presiding
Trial Courts Disposition: The trial court declined to rule on the States plea to the
jurisdiction or on Dalys motion to strike the States
intervention. RR4:10-16.
2
The court granted the divorce
without explanation and issued a final decree of divorce
on March 31, 2010. CR404-26.
Parties in Court of Appeals: Appellant: State of Texas
Appellees: Angelique Naylor and Sabina Daly
Court of Appeals: Third Court of Appeals, Austin
Court of Appealss Disposition: The court of appeals (Henson, J.) held that the States
intervention was untimely and dismissed the appeal for
want of jurisdiction. State v. Naylor, 330 S.W.3d 434
(Tex. App.Austin 2011, pet. filed & mand. pending).
The court also stated that Texas law may allow district
courts to grant same-sex divorces. Id. at 441-42.
xiii
STATEMENT OF JURISDICTION
This Court has jurisdiction for at least three reasons. First, this case involves the
construction and validity of section 6.204 of the Texas Family Code and article I, section 32
of the Texas Constitution. See TEX. GOVT CODE 22.001(a)(3); TEX. R. APP. P. 56.1(a)(3).
Second, this case creates a split among courts of appeals on the question of whether a trial
court has subject-matter jurisdiction over a petition for a same-sex divorce. TEX. GOVT
CODE 22.001(a)(2); TEX. R. APP. P. 56.1(a)(2). Compare In re Marriage of J.B. & H.B.,
326 S.W.3d 654, 658 (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.), and 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.), with
State v. Naylor, 330 S.W.3d 434, 441-42 (Tex. App.Austin 2011, pet. filed & mand.
pending) (stating that Texas law can be interpreted in a manner that would allow the trial
court to grant a divorce in this case). Third, the court of appeals error is important to the
jurisprudence of the state. TEX. GOVT CODE 22.001(a)(6); TEX. R. APP. P. 56.1(a)(5)-(6).
As the Dallas Court of Appeals recognized: Because this is an issue that is likely to arise
in other cases, prompt appellate resolution of the subject-matter-jurisdiction question will
have broad public benefits. Marriage of J.B., 326 S.W.3d at 661-62.
xiv
ISSUES PRESENTED
1. Did the State properly intervene by filing a petition in intervention in the district court
immediately after Daly abandoned her arguments in defense of Texas law?
2. Does a district court have jurisdiction over a divorce suit involving a same-sex couple
who obtained a marriage license in another state?
3. Does the U.S. Constitution permit Texas to define the legal institution of marriage as
the union of one man an one woman, and to provide the rights of marriagewhich
include divorceonly to those legally recognized relationships?
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 BRIEF ON THE MERITS
TO THE HONORABLE SUPREME COURT OF TEXAS:
The district court granted a divorce to two women. One day before doing so, the
court, with good reason, doubted that it had jurisdiction and worried that the case was a
legal mess that can only be resolved by constitutional analysis, none of which ha[d] been
fully briefed. RR3:72. Yet the next day, after the parties learned that the Attorney
Generals office was monitoring the case, the court suddenly granted the divorce without
attempting to offer a legal basis for its decree. The State intervened the following day.
The court of appeals allowed the unconstitutional divorce decree to stand, holding that
this case should be forever insulated from appellate review. State v. Naylor, 330 S.W.3d 434
(Tex. App.Austin 2011, pet. filed & mand. pending). According to the court of appeals,
2
the States interventionwhich came immediately after the parties and the district court
abandoned their stated intention to thoroughly brief and carefully consider the obvious legal
barriers to a same-sex divorce claimwas invalid because it came one day after the district
court suddenly announced judgment.
But the court of appeals misconstrued this Courts precedent on the timing of
intervention. While post-judgment intervention is generally not allowed, it will be permitted
in order to vindicate important rights. In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718,
723 (Tex. 2006) (orig. proceeding). Here, vindication of the States well-recognized right
to defend state law against constitutional attack, particularly when no other party will do so,
provides a more than adequate basis for allowing intervention one day after the sudden and
unexpected announcement of a same-sex divorce decree. Perhaps more importantly, the
integrity of our legal system suffers when issues of public concern are decided through
agreed judgments designed to subvert the state constitution, exclude adverse parties, and
thwart appellate review. Allowing the States intervention will ensure that the novel legal
issues raised by Respondents same-sex divorce claim are resolved fairly and openly through
the adversarial process.
If the court of appeals decision stands, the parties and the district court will have
succeeded in manufacturingand shielding from appellate scrutinya void judgment that
violates the Texas Constitution and ignores the clearly expressed will of Texas voters. That
should not be allowed to happen. This Court should reverse the judgment of the court of
3. The court of appeals recitation of the facts requires clarification in one respect. The court stated that
no party had challenged or defended the constitutionality of the Family Code before the State intervened,
Naylor, 330 S.W. 3d at 437, implying that the State injected constitutional issues into the case to create a
basis for its intervention. However, as the trial court stated the day before the States intervention, the legal
mess created by this cases jurisdictional problem can only be resolved by constitutional analysis, none
of which has been fully briefed . . . . RR3:72. The day before the court granted a divorce, the parties and
the court agreed to a briefing schedule on constitutional issues. RR2:22-26. And every brief Respondents
have filed in defense of their same-sex divorce claim has argued that Texas laws banning same-sex divorce
are unconstitutional. See, e.g., CR364-78. Put simply, there is no way to read the record of this case except
as raising a constitutional questions about Texass marriage laws. See infra at 14-16.
3
appeals, approve the States intervention, and dismiss the divorce petition for lack of subject
matter jurisdiction.
STATEMENT OF FACTS
The court of appeals correctly stated the nature of the case.
3
Naylor, 330 S.W.3d at
436-38. Angelique Naylor and Sabina Daly obtained a marriage license under Massachusetts
law in 2004. CR92. They moved to Texas, and on December 3, 2009, Naylor filed a petition
for divorce in Travis County District Court. CR91-102. The divorce action was filed under
the cause number of a pre-existing suit affecting the parent-child relationship (SAPCR). See
CR5-9. Several months prior to the divorce filing, the court entered an agreed order
resolving all issues in the SAPCR. CR32-82. The State has never challenged the validity
or enforceability of that SAPCR order.
Dalys answer to the divorce petition included a motion to dismiss and/or declare the
marriage void. CR104-06. The motion argued that 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
4. Just hours before asking for an agreed judgment of divorce, Dalys counsel attempted to pull back his
jurisdictional argument, stating incorrectly that [Dalys] motion to dismiss did not contend the trial court
lacked jurisdiction, but contended the court should declare the marriage void. RR3:68-72. However, citing
Dalys written pleadings and noting that jurisdiction cannot be waived, the trial court correctly observed that
You [Daly] argue that I have no jurisdiction this Court has no jurisdiction to enter any orders, including
a divorce decree including, but not limited to, a divorce decree by virtue of this lack of jurisdiction.
RR3:70. Thus, the trial court apparently understood, just a few hours before granting a divorce, that a non-
waivable jurisdictional issue had been squarely presented and had to be dealt with, despite attempts to
backtrack by Dalys counsel. Nevertheless, the court granted a divorce later that day without any
explanation. RR3:115.
5. See, e.g., Jenny Hoff, Austin gay couple fighting over divorce, KXAN.COM, Dec. 18, 2009, available at
http://www.kxan.com/dpp/news/politics/Austin-Gay-couple-fighting-over-divorce. The State has become
aware of at least three such cases only through media coverage, including the two now on appeal. See In the
Matter of the Marriage of J.B. and H.B., No. DF-09-1074 (302nd Dist. Ct., Dallas Co., Tex. Oct. 1, 2009).
In the third such case, a Beaumont trial court granted a divorce to a same-sex couple, and the State became
aware only after the decree. In the Matter of the Marriage of R.S. and J.A., No. F-185,063 (279th Dist. Ct.,
Jefferson Co., Tex. Mar. 31, 2003). In that case, the State intervened, the trial court reopened the case and
vacated the decree, and the parties then non-suited the case.
4
policy of the State of Texas.
4
CR104. Daly also pointed out that the marriage between
Petitioner and Respondent is invalid . . . and the parties do not qualify for a divorce.
CR105.
After Daly moved to dismiss, the State became aware of the case through media
coverage.
5
Because Daly had already presented the court with appropriate arguments
defending the plain meaning of the Family Code, the State chose not to intervene. Instead,
the State monitored the case, which proceeded in an adversarial fashion. In December 2009,
the court granted a continuance to allow Naylor to hire counsel, presumably to answer Dalys
jurisdictional challenge to the divorce suit. CR123-24. In January 2010, Daly filed a motion
to compel and for sanctions. CR126-31. On February 2, 2010, Naylor filed an amended
petition and other motions. CR132-230. Daly responded on February 4. CR235-39. Daly
6. References to the appendix to this brief appear as Tab [number].
5
never exhibited any intention of abandoning her jurisdictional defense and agreeing to a
divorce until the final minutes of the litigation. See CR104-06.
At a hearing on February 9, 2010, the district court recognized that Naylors petition
suffered from potential jurisdictional defects. RR2:25; Appendix Tab 1.
6
The court and
Naylors counsel discussed Naylors desire to make constitutional arguments in favor of her
claimed right to divorce. RR2:15-24; Tab 1. The court stated that, with respect to the
constitutional and jurisdictional issues, What I dont want to do is do some precipitous
shooting from the hip based on less than full briefing. Thats a fairly illogical way for us to
approach this very important issue. RR2:22; Tab 1. Accordingly, the court set a 30-day
briefing schedule and contemplated that it would spend another 30 days reading the briefing,
considering the issues, and reading every scrap of law I can read before [hearing]
arguments. RR2:22-26; Tab 1. Thus, as of February 9, Daly continued to press her
jurisdictional arguments, and the parties and the court agreed that the validity of the divorce
petition could not be resolved without thorough briefing and careful consideration.
The court and the parties again discussed the potential jurisdictional defects in
Naylors petition when the hearing continued the morning of the following day, February 10.
RR3:65-74; Tab 2. The court declined to make any rulings in the divorce action, worrying
that if I have no jurisdiction in the divorce action . . . then any orders the Court issues with
respect to the divorce action it seems to me are void orders. RR3:69; Tab 2. The court
stated it would have to go back and think about all this . . . legal mess . . . created by the
6
states of Massachusetts and Texas having, you know, clashing statutes . . . none of which has
been fully briefed. RR3:72; Tab 2. The court then observed that the legal mess before
it can only be resolved by constitutional analysis, none of which has been fully briefed, all
of which we find interesting. RR3:72; Tab 2. The court concluded that until I decide the
jurisdictional question, Im not likely to issue any orders in the divorce action. RR3:73;
Tab 2.
Things changed abruptly only a few hours later. The hearing recessed for lunch,
RR3:101, and during the recess, the parties learned that a representative of the Attorney
Generals office had arrived to observe portions of the hearing. See RR4:21 (Dalys counsel
recalling presence of Attorney Generals representative at the February 10 hearing). The
parties and the court immediately conducted an off-record conference in chambers, and upon
their return, Dalys counsel announced that the parties had settled all issues pending in this
case today. RR3:101; Tab 3. He read a rough outline of a property division agreement into
the record, RR3:102-10, asked the court to render a judgment today, RR3:115, and the
court responded, All right. Id; Tab 3. The court stated, The divorce is granted. Id; Tab
3.
No mention was made by the parties or the court of concernsexpressed repeatedly
by the court earlier that daythat the court lacked jurisdiction over the divorce action and
that any order issued in the divorce action would be void. And no mention was made of the
courts concern that glaring jurisdictional and constitutional issues had not been properly
briefed. The court simply stated that [t]he divorce is granted without any acknowledgment
7. Respondents accuse the State of fabricating statements made at oral argument, see PFR Resp. at 4 (calling
the States reference to statements at oral argument an outright fabrication Dalys counsel said no such
thing.). While counsel for the State understands that the subject matter of this case may cause emotions to
run high, allegations of outright fabrication in a brief to this Court must be addressed. Unfortunately, the
Third Court of Appeals does not maintain records of its oral arguments. But undersigned counsel recalls Mr.
Luthers statement and chose to include it in briefing to this Court only after confirming that recollection
with other attorneys who also witnessed the statement. In any event, Mr. Luther merely stated what the
record itself implies: after learning that the Attorney Generals office might get involved in the case, the
parties asked the court to bring a speedy end to the litigationboth because they had resolved their property
dispute and because they wanted to get a divorce decree without subjecting their legal claims to further
judicial scrutiny.
7
of the jurisdictional defect in the case, a defect which earlier that same day had, in the courts
view, prevented consideration of the parties arguments related to the divorce petition. See
RR3:65-69; Tab 2. Dalys counsel later indicated at oral argument in the court of appeals
that the parties asked the district court to quickly end the litigation upon learning that the
Attorney Generals office was monitoring the case.
7
The hearing concluded late that day, and the State intervened the next day, February
11. CR240-50. Daly objected to the intervention, arguing that the States ability to intervene
was cut off by the alleged rendition of judgment at the February 10 hearing. CR251-55. The
State filed a plea to the jurisdiction on February 23, 2010. CR270-78. Naylor responded,
arguing, among other things, that Texas laws barring same-sex divorce are unconstitutional.
CR364-78.
At a hearing on March 31, 2010, the district court declined to hear the States plea to
the jurisdiction and Naylors motion to strike the States intervention. According to the
court, a jurisdictional ruling was unnecessary because we all agree [that jurisdictional
issues] can be heard for the first time on appeal should that be something anyone really
8
desires. RR4:32; see also RR4:27-28 (court suggesting the State could raise jurisdiction on
appeal without actually intervening and stating that the court need not address its jurisdiction
at that time for the sake of efficiency); Tab 4. The court advised the State that the court
did not want to prolong matters in the district court, so the State should get an appellate
decision about the propriety of the Courts exercise of jurisdiction. RR4:27-28; Tab 4; see
also RR.4:60-70 (court inquiring about the Attorney Generals case-selection process,
suggesting the State should instead appeal Marriage of J.B., and arguing that even though
its order might be void the State should let [Naylor and Daly] do that and leave these
parties alone.). The court then approved the parties written settlement agreement and
signed the divorce decree. RR4:70.
The Third Court of Appeals allowed the district courts actions to stand. Naylor, 330
S.W.3d 434. The court concluded that it lacked jurisdiction over the appeal because the State
intervened one day after judgment. Id. The court of appeals ruled that the case did not
implicate the States interest in defending the constitutionality of its statutes. Id at 442.
According to the court of appeals, there are interpretations of section 6.204 that would allow
the trial court to grant the divorce without finding the statute unconstitutional. Id. at 442.
SUMMARY OF THE ARGUMENT
The court of appeals erred in dismissing the States appeal. This case plainly
implicates the States justiciable interest in defending the constitutionality of its laws, and
that interest is a sufficient basis for intervention on this record. Moreover, permitting the
State to intervene will allow the novel legal issues presented by this case to be decided
9
through the adversarial process, rather than by an agreed judgment that violates the state
constitution and thwarts the clearly expressed will of Texas voters.
The timing of the States interventionone day after the court suddenly reversed
course and granted a divorceis no bar to this appeal. The timing of intervention is a matter
of equity, and on this unique record, the court of appeals rigid application of the general rule
against post-judgment intervention was error. Equitable considerations favor allowing the
States intervention, particularly when the purposes of the rule against post-judgment
intervention would not be served by allowing the divorce decree to stand. There is no finality
in a void decree issued without jurisdiction. And given the importance of the legal issues
involved, an intervention one day after judgment is no reason to delay immediate appellate
review of a void judgment that violates the Texas Constitution, can be collaterally attacked
at any time in the future, and provides no real legal certainty for the parties.
Once the State is allowed to intervene, this case can be resolved in two
straightforward steps. First, Texas law bars same-sex divorce suits in five, independent
ways, and that bar is jurisdictional. Second, Texans decision to define marriage as the union
of one man and one woman, and to provide the legal rights of marriagewhich include the
right to divorceonly to those legally recognized relationships comports with the U.S.
Constitution. The court of appeals decision should be reversed, the States intervention
should be approved, and the divorce petition should be dismissed for lack of jurisdiction.
10
ARGUMENT
I. THE STATE SHOULD BE ALLOWED TO INTERVENE TO PREVENT LITIGANTS AND
JUDGES FROM USING AGREED JUDGMENTS TO SUBVERT THE STATES
CONSTITUTIONAL PROHIBITION ON RECOGNIZING SAME-SEX MARRIAGES.
The State intervened on February 11, 2010, two days after the parties and the court
agreed to a 30-day briefing schedule and a 60-day deadline for resolving the legal mess
created by a same-sex divorce claim in a Texas court, RR2:22-26, Tab 1, and one day after
the parties and the court suddenly agreed to a divorce decree without conducting any of the
constitutional analysis that the court knew was necessary to resolving the case, RR3:72,
Tab 2. CR240-50. The court declined to rule on the States intervention, observing that we
all agree [that jurisdictional issues] can be heard for the first time on appeal should that be
something anyone really desires. RR4:32; Tab 4. The court advised the State to get an
appellate decision about the propriety of the Courts exercise of jurisdiction. RR4:27-28;
Tab 4.
On appeal, the court of appeals held that because the State intervened one day after
judgment was rendered, its appeal must be dismissed. Naylor, 330 S.W.3d at 444. The court
of appeals recognized only one exception to the general rule against post-judgment
interventionthe virtual representation doctrineand held that the States intervention did
not meet that exception. Id. at 439-43. The court of appeals rigid application of the general,
equitable rule against post-judgment intervention thwarts the purposes underlying that rule,
ignores this Courts prior statements on the timing of intervention, and allows the parties to
11
openly violate the Texas Constitution and then insulate their potentially groundbreaking
divorce decree from any judicial scrutiny.
A. The State Has a Well-Recognized, Justiciable Interest in Defending Its
Laws When Their Constitutionality Is Questioned, and That Interest
Entitles the State to Intervene Post-Judgment in This Case.
Rule 60 of the Texas Rules of Civil Procedure permits any party with a justiciable
interest in the case to intervene. See TEX. R. CIV. P. 60. The intervenor bears the burden
to show a justiciable interest, legal or equitable, in the lawsuit. Mendez v. Brewer, 626
S.W.2d 498, 499 (Tex. 1982). The right of intervention is ultimately rooted in equity.
Zeifman v. Michels, 229 S.W.3d 460, 464 (Tex. App.Austin 2007, pet. denied) (observing
that [an intervenors] justiciable interest may be either legal or equitable in nature but must
be present and not merely remote or contingent.).
The State was entitled to intervene in the district courtand is now entitled to
appellate reviewbecause it has a well-recognized justiciable interest in defending the
constitutionality of Texas law. This Court has routinely acknowledged the State as a proper
intervenor under these circumstances. See, e.g., State v. Hodges, 92 S.W.3d 489, 493 (Tex.
2002) (The State of Texas intervened, arguing for [Texas Election Code 162.015]s
constitutionality.); Wilson v. Andrews, 10 S.W.3d 663, 666 (Tex. 1999) (The Attorney
General intervened to defend [Texas Local Government Code 143.057(d)]s
constitutionality.); Corpus Christi Peoples Baptist Church, Inc. v. Nueces County
Appraisal Dist., 904 S.W.2d 621, 624 (Tex. 1995) (The Attorney General intervened for the
limited purpose of defending the constitutionality of section 11.433 [of the Texas Tax
8. Respondents contend that a justiciable interest justifying intervention exists only when the intervenor
could have brought the pending action, or any part thereof, in its own name. PFR Resp. at 9-10 (citing In
re Union Carbide Corp., 273 S.W.3d 152, 154-55 (Tex. 2008)). This Court has used a similar standard for
intervention in other cases, including Guaranty Federal Savings Bank v. Horseshoe Operating Company,
793 S.W.2d 652, 657 (Tex.1990). But Union Carbide and Guaranty Federal merely applied one intervention
standard applicable to private parties who seek to intervene to add themselves as an extra plaintiff or
defendant. They have no applicability to the States longstanding right to intervene to defend its laws. As
the Third Court of Appeals has recognized, the touchstone for all intervention claims is justiciable interest,
and the rule applied in cases like Union Carbide and Guaranty Federalthat the intervenor must have been
able to bring the pending action in its own nameis:
a useful guide [but] does not reach all situations. It does not cover, for example, the case
in which the intervenor-defendant could not have been sued directly, yet a judgment for
plaintiff may lead to an action over against the intervenor or otherwise seriously prejudice
the intervenor, and the intervenor's intervention is necessary to assure proper defense of the
claim. Nor does it meet the situation in which the intervenor asserts a claim adverse to both
parties . . . . We conclude that even if Zeifman could not assert precisely the same claims
or defenses as Michels and AISD, he possessed a justiciable interest in the suit, and was
potentially prejudiced by it, in a manner that satisfies the equitable considerations
underlying the first element of the Guaranty Federal analysis.
Zeifman, 229 S.W.3d at 467 (Pemberton, J.) (second emphasis added). In any event, this Court has on
multiple occasions recognized the Attorney Generals authority to intervene to advocate for the
constitutionality of Texas law, and Respondents cannot cast any doubt on that authority.
12
Code].). On a given day, the State is an intervenor in any number of pending cases between
private parties involving constitutional questions about state law. See, e.g., In re Tex. State
Silica Prods. Liab. Litig., No. 2004-70000 (333rd Dist. Ct., Harris County, Tex. Oct. 27,
2008) (intervention to defend Texas law governing silica and asbestos liability); Watson v.
Harrison County Hosp. Assn, No. 2:08-cv-00081 (TJW-CE) (E.D. Tex. June 13, 2008)
(intervention to defend Texas law limiting medical-malpractice damages). The State is aware
of no case in which it has been denied the right to intervene to advocate for the
constitutionality of Texas law, much less a case rejecting the States good-faith attempt to
intervene one day after the litigants and the district judge unexpectedly enter an
unconstitutional consensual judgment, and where no party would defend Texas law.
8

9. In the Matter of the Marriage of R.S. and J.A., No. F-185,063 (279th Dist. Ct., Jefferson Co., Tex. Mar.
31, 2003); In the Matter of the Marriage of J.B. and H.B., No. DF-09-1074 (302nd Dist. Ct., Dallas Co., Tex.
Oct. 1, 2009).
13
The Attorney Generals long-recognized right to intervene to defend state law stems
from the Attorney Generals constitutional role as chief legal officer of the State. See TEX.
CONST. art. IV, 22. When the constitutionality of State law is called into question, the
Attorney General represents the interest of the Legislature and the people of Texas in
upholding laws duly enacted through the political process. This interest is distinct from that
of private parties, who defend the constitutionality of state law only when doing so serves
their purposes. This unique interest is particularly acute when no party to the litigation has
an incentive to uphold state law, as is the case here.
The Family Code provisions at issue here are particularly vulnerable to the kind of
manufactured outcome that occurred in the district court. As has already happened at least
twice in Texas,
9
parties to out-of-state same-sex marriages have an obvious incentive,
particularly in divorce cases, to agree to ignore Texas law by treating their relationships as
legally valid. If they draw a like-minded district judge, they can agree that the Texas
Constitution and Family Code are unconstitutionalor they can simply ignore the lawand
concoct a judgment that violates the States constitution and thwarts the will of Texas voters.
Permitting the State to intervene in such cases is the only way to ensure that these novel
issues of family law are litigated in an open, adversarial process and decided by judicial
analysis, rather than by the agreement of interested parties and sympathetic district courts.
14
The Legislature recently affirmed the unique role played by the Attorney General
when the constitutionality of state law is questioned. In the most recent regular session, the
Legislature passed H.B. 2425, now codified at TEX. GOVT CODE 402.010, which requires
district courts to notify the Attorney General any time a pleading or motion is filed
challenging the constitutionality of a statute of this state. Act of May 24, 2011, 82d Leg.,
R.S., ch. 808, 2011 Tex. Gen. Laws 1871; see also TEX. CIV. PRAC. & REM. CODE
37.006(b) (when a statute, ordinance or franchise is alleged to be unconstitutional in a
declaratory judgment action, the attorney general of the state must also be served with a
copy of the proceeding and is entitled to be heard). While neither of these statutes serves
as a legal basis for the States intervention in this particular case, they demonstrate that the
Legislature intends for courts to be solicitous of the Attorney Generals views when the
constitutionality of state law comes into question. And that policy makes sense, because the
Attorney General is uniquely positioned to defend state law for its own sake, rather than as
a means to achieve a clients goals.
B. Both Explicitly and Implicitly, This Case Involves a Constitutional
Challenge to Texas Law, Which Triggers the States Right to Intervene.
Respondents have repeatedly claimed not to be challenging the constitutionality of
Texas law. See, e.g., PFR Resp. at 11. But Naylor devoted seventeen pages of her brief in
the court of appeals to arguing that Article I, section 32 of the Texas Constitution and section
6.204 of the Texas Family Code are unconstitutional. Appellee Angelique Naylors Brief at
30-47, State v. Naylor, No. 031000237CV (Tex. App.Austin Sep. 30, 2010). And at
15
the district court level, in the only pleading explaining the legal basis for her claim to
divorce, Naylor argued that Texas law requiring voidance rather than divorce for same-sex
couples violates the Equal Protection Clause and the Full Faith and Credit Clause of the U.S.
Constitution. CR366-69.
Respondents seem to claim that their decision to frame their constitutional attack as
an argument in the alternative somehow cuts off the States right to defend Texas law. Resp.
to PFR at 11. But there is no authority for this remarkable contention. Even if the
constitutional argument were merely one of many live arguments in favor of the claim for
divorce, the State would be entitled to intervene. But this case is even simpler. Respondents
atextual statutory construction arguments aside, the only colorable legal issue here is whether
the U.S. Constitution prohibits Texas courts from applying black-letter Texas family law to
the facts of this case. Unless Texas law is unconstitutional, Respondents cannot escape the
fact that they are not married in this state and are therefore not entitled to a divorce. See TEX.
CONST. art I, 32 (Marriage in this state shall consist only of the union of one man and one
woman); TEX. FAM. CODE 6.204(b) (A marriage between persons of the same sex or a
civil union is contrary to the public policy of this state and is void in this state.). Nor can
Respondents do anything about the plain language of section 6.204(c)(2) of the Family Code,
which bars all legal claims asserted as a result of a same-sex marriage, i.e., claims for same-
sex divorce. TEX. FAM. CODE 6.204(c)(2) (courts may not give effect to a right or
claim to any legal protection, benefit, or responsibility asserted as a result of a marriage
16
between persons of the same sex). Given the clarity of Texas law, there is no denying that
the primaryif not the onlylegal issue here is the constitutional one.
The district court explicitly recognized this fact mere hours before granting a divorce.
RR3:72 (THE COURT: So well have to go back and think about all this. But one thing
that this little colloquy has made apparent, it is quite a legal mess, and in part created by the
states of Massachusetts and Texas having, you know, conflicting statutes . . . which can only
be resolved by constitutional analysis, none of which has been fully briefed, all of which we
find interesting.) (emphasis added); Tab 2. The district court recognized that the case could
not be resolved without considering constitutional issues. But just hours later, the court
announced a judgment of divorce without any explanation. RR3:115; Tab 3. Given the
courts recognition of the constitutional nature of the case earlier that day, the most charitable
way to make legal sense of the courts divorce decree in the context of this record is that the
court thought the U.S. Constitution required it to grant a divorce despite the mess created
by conflicting statutes. While it is possible there was no legal reasoning at all underlying
the courts actions, this record creates the impression that the court acted with constitutional
principles in mind. In any event, the district court was right on one point: a same-sex
divorce case in a Texas court necessarily implicates constitutional questions. The States
authority to intervene in such a case could hardly be clearer, particularly after it became
obvious that neither party intended to advocate for the constitutionality and enforcement of
Texass marriage laws.
10. Denial of intervention under Rule 60 is reviewed for abuse of discretion. See Guaranty Fed., 793 S.W.2d
at 657. The court of appeals stated that an abuse of discretion standard would have applied had the State
intervened prior to judgment. Naylor, 330 S.W. 3d at 444 n.8, possibly implying that some other standard
applied to post-judgment intervention. Nevertheless, abuse of discretion is the appropriate standard.
17
C. The Timing of the States InterventionOne Day After the Parties and
the Court Abruptly Changed Course and Agreed to a DivorceIs Not an
Absolute Bar to This Appeal.
There is no deadline for intervention in the Texas Rules of Civil Procedure. Tex.
Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008); see TEX. R. CIV. P. 60. Post-
judgment intervention is usually not allowed, however, because [g]enerally, only parties of
record may appeal a trial courts judgment. In re Lumbermens Mut. Cas. Co., 184 S.W.3d
718, 723 (Tex. 2006) (orig. proceeding) (citation omitted). This Court has recognized,
however, that the general rule against post-judgment intervention will give way in order to
vindicate important rights. Id.
The court of appeals dismissed the States appeal because the State intervened one day
after the district court suddenly and unexpectedly announced that Divorce is granted.
RR3:115; Tab 3.
10
As explained below, given the unique circumstances of this case, the State
was entitled to intervene after judgment. Because the States intervention took place one day
after the court suddenly announced judgment and well within the time in which the court
could reconsider or amend its judgment, this case cannot fairly be compared to the typical case
in which this Court has rejected untimely intervenors who attempt to reopen final judgments.
See, e.g., First Alief Bank v. White, 682 S.W.2d 251, 252 (1984) (orig. proceeding) (per
11. In order to benefit from the virtual-representation doctrine, a would-be appellant must show that (1) it
is bound by the judgment, (2) its privity of estate, title, or interest appears from the record, and (3) there is
an identity of interest between the appellant and a named party to the judgment. Motor Vehicle Bd. v. El
Paso Indep. Auto. Dealers Assn, 1 S.W.3d 108, 110 (Tex. 1999) (per curiam).
18
curiam) (rejecting intervention that came 84 days after judgment and 54 days after the courts
plenary power expired).
Under the court of appeals analysis, the only exception to a rigid rule against all post-
judgment intervention is the virtual representation doctrine.
11
See Naylor, 330 S.W. 3d at
439-40. But this Court has never limited post-judgment intervention to the virtual-
representation context. Because there is no intervention deadline in statute or rule, the general
rule against post-judgment intervention is a creature of equity, created by the courts in order
to promote finality in judgments, but subject to equitable exceptions. This Court has
recognized as much by stating that post-judgment intervention will be permitted in order to
vindicate important rights. Lumbermens, 184 S.W.3d at 723.
The State raised the virtual-representation doctrine below, not to rely exclusively on
it as a vehicle for intervention, but because of the similarities between this case and one of this
Courts leading virtual-representation cases, Motor Vehicle Bd. v. El Paso Indep. Auto.
Dealers Assn, 1 S.W.3d 108 (Tex. 1999) (El Paso). In El Paso, local officials initially
defended a state statute that prohibited the sale of cars on consecutive weekend days. Id. at
110. As here, the Attorney General learned of the lawsuit but elected not to intervene because
one party was already making the proper arguments. Id. When the local officials suddenly
abandoned their defense of the statute and agreed to a settlement invalidating it, the State
12. See Ledbetter, 251 S.W.3d at 36 ([W]hen a subrogee's interest has been adequately represented and then
suddenly abandoned by someone else, it can intervene even after judgment or on appeal so long as there is
neither unnecessary delay nor prejudice to the existing parties.).
19
intervened. Id. This Court permitted the States appeal. Id. at 110-11. This case is
remarkably similar to El Paso, given Dalys initial position that the district court lacked
jurisdiction and then the sudden change of course that precipitated the States intervention.
The virtual-representation doctrine is not a crisp rule with sharp corners and must
be determined on a case-by-case basis. Lumbermens, 184 S.W.3d at 725. As the State
acknowledged in the court of appeals, this case does not map perfectly onto the virtual-
representation doctrine, which typically arises in the insurance context.
12
See States Reply
Br. at 10-11, State v. Naylor, No. 031000237CV (Tex. AppAustin Nov. 5, 2010). For
one thing, the State is not bound by the district courts void divorce decreeand neither are
Respondents or anyone else, as a void judgment issued without jurisdiction can never be
enforced. See infra at 34-39. But again, the virtual-representation doctrine is not the only
exception to the equitable rule against post-judgment intervention. The court of appeals,
however, declined to directly address the States other, equity-based arguments and incorrectly
focused its opinion solely on the virtual-representation question. See Naylor, 330 S.W.3d at
439-44.
D. Equitable Considerations Governing Intervention Weigh in Favor of
Allowing the State to Participate in This Case.
Given the way this case was handled at the district court, equitable considerations
overwhelmingly favor allowing the State to intervene one day after judgment so that
13. Notably, the district court did not share Respondents position that no appellate review of this case is
possible. To the contrary, the district court several times stated that the State could seek appellate review
of the issues raised in its plea to the jurisdiction. RR4:27-28, 32; Tab 4. Indeed, the district court noted the
availability of appellate review in order to justify its decision to decline to rule on the issues raised by the
State. Id. Because the appellate court could sort everything out on appeal, the district court reasoned, the
State need not be concerned with the outcome at the district court level. Id. Thus, while the district court
essentially abdicated its responsibility to examine the jurisdictional basis for Respondents same-sex divorce
claim, the court did not contemplate that the claim would never be subjected to judicial scrutiny. To the
contrary, the record reflects that the court declined to rule on the States plea to the jurisdiction in part
because the State is entitled to appellate review.
20
Respondents efforts to obtain a potentially groundbreaking divorce decree that violates the
Texas Constitution and Family Code can be considered in the context of an adversarial
proceeding. See Zeifman, 229 S.W.3d at 464 ([T]he right of intervention is ultimately rooted
in equity.).
[T]he supreme objective of the courts is to obtain a just, fair, equitable and impartial
adjudication of the rights of litigants under established principles of substantive law. . . . And
basic to the right to a fair trialindeed, basic to the very essence of the adversarial
processis that each party have the opportunity to adequately and vigorously present any
material claims and defenses. Henry Schein, Inc.v. Stromboe, 102 S.W.3d 675, 693 (Tex.
2002) (citations omitted). The U.S. Supreme Court has likewise noted that our adversarial
system of justice . . . is premised on the well-tested principle that truthas well as
fairnessis best discovered by powerful statements on both sides of the question. Penson
v. Ohio, 488 U.S. 75, 84 (1988) (citation omitted); see also Polk County v. Dodson, 454 U.S.
312, 318 (1981) (The system assumes that adversarial testing will ultimately advance the
public interest in truth and fairness.). These basic tenets of our legal system can be honored
in this case only by allowing the State to intervene.
13

21
To begin with, at least two important rights are at stake. Lumbermens, 184 S.W.3d
at 723. First, as discussed above, this case unavoidably implicates the Attorney Generals
right to intervene in private parties legal proceedings to advocate for the constitutionality of
state law. But in an attempt to avoid any meaningful judicial scrutiny of their claims,
Respondents now ask this Court to bury its head in the sand and pretend that this is a simple
divorce matter, involving property division and raising no broader constitutional issues. The
court of appeals was willing to do that, but this Court should not be.
Another important right at stake here is the right of the public to have important legal
issues decided through an open, adversarial process rather than by agreed judgments that
violate the state constitution and thwart the clear will of Texas voters. Respondents
characterize this case as a purely private matter, and from a personal perspective that may be
true. But this is obviously not an ordinary divorce case. From a legal perspective, a claim for
same-sex divorce in a Texas court implicates weighty questions about the rights of same-sex
couples and the constitutional validity of state laws that extend marriage and marriagess
rights only to the union of one man and one woman. These cutting-edge legal questions bear
no resemblance to the legal issues that arise in run-of-the-mill divorce cases, and unlike in
ordinary divorce cases, intense judicial scrutiny of these matters should be required. Allowing
the court of appeals decision to stand would not only validate what happened in the district
court, it would provide a roadmap for other same-sex couples to avoid judicial review of
potentially groundbreaking legal claims. The State should be allowed to intervene so that
14. THE COURT: [The parties here] recognize theres a chance that ultimately the Supreme Court would
conclude that this is a nullity, what they've done here in getting a divorce is a nullity . . . . But thats what
they've chosen to do. . . . they wanted finality in this agreed final judgment to get not only a divorce, but also,
. . . finality on all their affairs so that in the event you prevail in the J.B. case, the Dallas Court of Appeals
and the Supreme Court, and its concluded at some later date that what I have already done on February 10th
was a nullity because I lacked the jurisdiction to do it with respect to the divorce, they still have a final
judgment. What is the problem with simply letting them do that? And if it becomes a nullity and they think
they need to do something further to get finality, they can do that. RR4:62-63.
22
Respondents attempt to side-step the adversarial process and subvert the Texas Constitution
by default can be rejected.
Other equitable considerations also counsel in favor of the States intervention. First,
the purpose of the general rule against post-judgment interventionto promote finality and
certainty in judgmentsis not served by excluding the State from the case. As discussed
below, the final divorce decree Respondents seek to protect is a void order that is
unenforceable even between the Respondents, and it is subject to collateral attack at any time.
See, e.g., 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.) (granting collateral attack
and voiding four-year-old same-sex divorce decree because [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); see also infra at 34-39. The district court understood this. A day before
granting a divorce, the court correctly worried that any orders the court issues with respect
to the divorce action it seems to me are void orders. RR3:69; Tab 2. Even after granting the
divorce, the court recognized that its decree may not actually provide finality.
14
The only way
to achieve real finality in this case is for this Court to allow the States appeal, dismiss the suit
23
for divorce, and instruct Respondents to pursue a suit to declare the marriage void. See TEX.
FAM. CODE 6.307.
Second, Respondents are not prejudiced by the States intervention. True, the States
intervention forces Respondents to provide a legal justification for their same-sex divorce
decree. But parties to a lawsuit are not prejudiced by being required to demonstrate their legal
entitlement to the relief they request, particularly when that relief is of a kind that has never
before been successfully obtained in a Texas court.
Third, the court of appeals decision places the burden on the Attorney General to
intervene preemptively in every case that might result in an agreed judgment calling the
constitutionality of Texas law into question. This office lacks the capacity to intervene in
every such case. When private litigants advance the legal position the State would take as an
intervenor, the State frequently elects not to intervene, instead allowing the adversarial
process to run its course between the parties. But when a litigant suddenly abandons its legal
position, and a district court suddenly drops its concerns about a legal mess . . . which can
only be resolved by constitutional analysis, none of which has been fully briefed, the State
should have the option of a speedy intervention that preserves abandoned legal arguments for
appellate review. RR3:72; Tab 2. To hold otherwise would place the burden on the State to
intervene preemptively in every constitutional case, just in case the parties and the court
suddenly agree to an adverse judgment.
This Court has previously adopted a test used by the Fifth Circuit to analyze the
timeliness of post-judgment intervention based on the unique circumstances of each case, and
15. The Fifth Circuits standard for the timeliness of intervention, which has informed this Courts analysis
in the past and should do so here, focuses on these four factors but remains a context-sensitive inquiry.
When applying these factors, the Fifth Circuit has observed that the timeliness analysis remains
contextual, and should not be used as a tool of retribution to punish the tardy would-be intervenor, but
rather [should serve as] a guard against prejudicing the original parties by the failure to apply sooner. Ross,
426 F.3d at 754.
24
that test should be employed here as well. Considerations under that test are (1) the length
of time during which the would-be intervenor should have known of its interest in the case
before attempting to intervene; (2) the extent of prejudice that the existing parties may suffer
as a result of the would-be intervenors failure to apply for intervention as soon as it actually
knew or should have known of its interest in the case; (3) the extent of prejudice the would-be
intervenor would suffer if intervention is denied; and (4) the existence of unusual
circumstances militating either for or against a determination that the application is timely.
Lumbermens, 184 S.W. 3d at 726 (employing four-part test from Ross v. Marshall, 426 F.3d
745, 754 (5th Cir. 2005), to analyze timeliness of intervention of a virtually represented
party).
15

All four factors weigh in favor of permitting the States intervention. The State
intervened as soon as it learned of the need to do so. The intervention causes Respondents
no legally cognizable prejudice but simply requires them to defend the legal basis for their
novel divorce claim. Denial of intervention would prejudice the States interest in defending
its laws allow the state constitution to be violated with impunity, and result in an important
legal issue being decided without any appellate review. And under the highly unusual
circumstances of this case, the State cannot be blamed for relying on the courts statementa
16. If the Court concludes that the State is not entitled to a direct appeal, the Court should grant the States
Petition for Writ of Mandamus in Case No. 11-0222.
25
day before divorce was grantedthat glaring constitutional and jurisdictional issues would
be thoroughly briefed and analyzed before a decision was made.
To be clear, the State does not ask for a broad rule permitting it to intervene post-
judgment in every case, or even in every case involving constitutional issues. But the unique
circumstances of this case provide a more than adequate equitable basis for allowing the
States intervention. Few cases in the future will have such an unusual record, and few cases
in the future will merit departure from the general rule against post-judgment intervention.
But when similar circumstances arise, the State should be permitted to intervene to ensure that
important legal issues are not decided by agreed judgment and that arguments regarding the
constitutionality of state law are preserved for appellate review. On this record in particular,
the State should be allowed to intervene so that Respondents attempt to thwart the state
constitution by obtaining a same-sex divorce decreeand the validity of the provisions of the
Texas Constitution and Family Code barring that decreecan be adjudicated fairly and
openly by this Court.
16
II. THE DISTRICT COURTS VOID DIVORCE DECREE SHOULD BE VACATED AND THE
DIVORCE PETITION SHOULD BE DISMISSED FOR LACK OF JURISDICTION.
Once the States appeal is allowed to go forward, reversal of the district courts decree
of divorce is required. As two courts of appeals have held, Texas law not only prohibits
courts from granting divorces to same-sex couples, it prohibits them from even exercising
jurisdiction over divorce suits premised on marriage licenses obtained by same-sex couples
17. Section 6.204 of the Texas Family Code, Texass Defense of Marriage Act, provides:
26
under the laws of other states. See In re Marriage of J.B. & H.B., 326 S.W.3d 654, 670 (Tex.
AppDallas 2010, pet. filed) (We hold that Texas courts lack subject-matter jurisdiction to
entertain a suit for divorce that is brought by a party to a same-sex marriage, even if the
marriage was entered in another state that recognizes the validity of same-sex marriages.);
Mireles, 2009 WL 884815, at *2 (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.).
A. The Texas Constitution and Family Code Prohibit Same-Sex Divorces in
at Least Five, Independent Ways.
First and foremost, the Texas Constitutions clear definition of marriage prohibits
Texas courts from granting a divorce to a same-sex couple. According to the Constitution:
(a) Marriage in this state shall consist only of the union of one man and one
woman
(b) This state or a political subdivision of this state may not create or
recognize any legal status identical or similar to marriage.
TEX. CONST. art. I, 32. A divorce is available only [o]n the petition of either party to a
marriage. TEX. FAM. CODE 6.001. Because Respondents are both women, they are not
parties to a marriage as a matter of Texas constitutional law. As a result, they cannot get a
divorce.
Second, under section 6.204(b) of the Texas Family Code, [a] marriage between
persons of the same sex or a civil union is contrary to the public policy of this state and is void
in this state. Id. 6.204(b).
17
This clear statement of legislative policy reinforces the Texas
(a) In this section, civil union means any relationship status other than marriage that:
(1) is intended as an alternative to marriage or applies primarily to
cohabitating persons; and
(2) grants to the parties of the relationship legal protections,
benefits, or responsibilities granted to the spouses of a marriage.
(b) A marriage between persons of the same sex or a civil union is contrary to the public policy of
this state and is void in this state.
(c) The state or an agency or political subdivision of the state may not give effect to a:
(1) public act, record, or judicial proceeding that creates, recognizes, or
validates a marriage between persons of the same sex or a civil union in this
state or in any other jurisdiction; or
(2) right or claim to any legal protection, benefit, or responsibility asserted
as a result of a marriage between persons of the same sex or a civil union
in this state or in any other jurisdiction.
18. Texas courts are created by statute and are agencies of the State. See 16 TEX. JUR. 3d Courts 1 (2010)
(citing Isbill v. Stovall, 92 S.W.2d 1067, 1070 (Tex. Civ. App.Eastland 1936, no writ.)) (defining Texas
courts as an agency of the sovereign . . .). As an agency or political subdivision of the State, a Texas court
must follow section 6.204.
27
constitutions ban on same-sex marriage and further clarifies that Respondents are notand
cannot bemarried in Texas. Unmarried parties cannot get divorced. Id. 6.001.
Third, under section 6.204(c)(1) of the Family Code, no agency or political
subdivision of the state
18
may give effect to a . . . public act . . . that creates, recognizes, or
validates a marriage between persons of the same sex . . . in this state or in any other
jurisdiction. Id. 6.204(c)(1) (emphasis added); see Ross v. Goldstein, 203 S.W.3d 508, 514
(Tex. App.Houston [14th Dist.] 2006, no pet.) (explaining that under section 6.204 and
article I, section 32 of the Texas Constitution, it is contrary to the States public policy to
recognize or give effect to a same-sex marriage or civil union). As the Fifth Court of
Appeals observed, section 6.204(c)(1) amplifies section 6.204(b) by providing explicitly that
the rule of voidness applies even to same-sex marriages that have been recognized by another
28
jurisdiction. Marriage of J.B., 326 S.W.3d at 665 (emphasis added). The divorce decree in
this case give[s] effect to and recognize[s] Respondents same-sex marriage created in
another jurisdiction, in violation of section 6.204(c)(1).
Fourth, section 6.204(c)(2) of the Family Code prohibits Texas courts from giv[ing]
effect to a . . . . claim to any legal protection, benefit, or responsibility asserted as a result of
a marriage between persons of the same sex . . . in this state or in any other jurisdiction.
TEX. FAM. CODE 6.204(c)(2) (emphasis added). Naylors divorce suit is just such a claim.
It seeks legal protections, benefits, and responsibilities and is asserted as a result of a
marriage. It is therefore barred by section 6.204(c)(2) because it is asserted as a result of a
same-sex marriage in another jurisdiction.
Finally, under section 6.307 of the Family Code, [e]ither party to a marriage made
void by this chapter may sue to have the marriage declared void. Id. 6.307. All same-sex
marriages are made void in Texas by section 6.204(b). Thus, the way to dissolve a same-sex
marriage in a Texas courts is a suit to declare the marriage void, not a suit for divorce. See
Marriage of J.B., 326 S.W.3d at 678-79. Not only is the statutory text straightforward, the
Legislature made its intentions doubly clear by placing section 6.204 of the Family Code,
Texass Defense of Marriage Act, in the sub-chapter of the Code entitled Declaring a
Marriage Void.
29
B. The Court of Appeals Attempt to Harmonize a Same-Sex Divorce Decree
with Texas Law Ignores the Text of Section 6.204.
The court of appeals held that these unambiguous provisions of Texas law can
somehow be interpreted such that a district court could reasonably grant a same-sex divorce
without overturning state law on constitutional grounds. Naylor, 330 S.W.3d at 441 (claiming
to recognize the potential for interpreting section 6.204 in a manner that would allow the trial
court to grant a divorce in this case). Neither of the court of appeals proffered
interpretations of section 6.204 has any basis in the statutory text, and neither even attempts
to address the most basic fact barring a divorce in this caseRespondents are not married.
See TEX. CONST. art. I, 32; TEX. FAM. CODE 6.204(b).
First, the court theorized that section 6.204 did not prohibit the trial courts actions
because divorce is a benefit of state residency, rather than a legal protection, benefit, or
responsibility resulting from marriage. Naylor, 330 S.W.3d at 441. This appears to be an
attempt to sidestep section 6.204(c)(2), which prohibits courts from giv[ing] effect to a . . .
claim to any legal protection, benefit, or responsibility asserted as a result of a marriage
between persons of the same sex . . . in this state or in any other jurisdiction. TEX. FAM.
CODE 6.204(c)(2). But if divorce were merely a benefit of state residency rather than of
marriage, then all Texans would be entitled to divorce. While state residency plays a role in
determining who is entitled to divorce, id. 6.301, the defining characteristic of a valid
divorce litigant is that he or she is a party to a valid marriage, id. 6.001. A divorce suit is
perhaps the quintessential claim . . . asserted as a result of a marriage. Id. 6.204(c)(2); see
30
Gray v. Gray, 354 S.W.2d 948, 949 (Tex. Civ. App.Houston 1962, writ dismd) (A suit
for divorce presumes a valid marriage.). And Naylors divorce suit is unquestionably a
claim to a[] legal protection, benefit, or responsibility asserted as a result of a marriage
between persons of the same sex. It is therefore barred by section 6.204(c)(2) of the Family
Code, not to mention sections 6.204(b), 6.204(c)(1), 6.307, and article I, section 32 of the
Texas Constitution.
Second, the court of appeals speculated that under the plain language of section 6.204,
the trial court is only prohibited from taking actions that create, recognize, or give effect to
same-sex marriages on a going-forward basis, so that the granting of a divorce would be
permissible. Naylor, 330 S.W.3d at 441. This statement seems to be aimed at section
6.204(c)(1). But again, even if the court were right, sections 6.204(b), 6.204(c)(2), 6.307, and
article I, section 32 of the Texas Constitution each independently prohibit same-sex divorce.
In any event, the words on a going-forward basis are nowhere to be found in the text of
section 6.204(c)(1), which is an absolute bar to any actions that give effect to a public act,
record, or judicial proceeding that creates, recognizes, or validates a marriage between
persons of the same sex or a civil union in this state or in any other jurisdiction. TEX. FAM.
CODE 6.204(c)(1). By granting a divorceand thereby providing the parties with the
substantive and procedural protections provided by divorce and reserved by the law for validly
married couplesthe district court gave effect to and recognized Respondents marriage, in
violation of the statute. Marriage of J.B., 326 S.W.3d at 666-67. Whether that recognition
was on a going-forward basis is irrelevant. Neither the court of appeals nor Respondents
19. A suit to declare the marriage void is the only proper dissolution mechanism in a variety of situations.
For example, voidance is the only disolution remedy when people marry with the mistaken belief that they
properly terminated a previous marriage. See id. 6.202; Hovious v. Hovious, No. 02-04-169-CV, 2005 WL
555219, at *6-7 (Tex. App.Fort Worth Mar. 10, 2005, pet. denied) (mem. op.) (declaring marriage void
due to unintentional bigamy). It is also the only proper remedy when the parties are underage or too closely
related to one another to marry under Texas law. TEX. FAM. CODE 6.201, 6.205, 6.206. And it is the only
proper remedy when the parties are of the same sex. Id. 6.204(b).
31
can point to anything in the text of section 6.204(c)(1) that supports their desired addition to
the statute of this fabricated going-forward basis standard.
C. A Suit to Declare the Marriage Void Is the Proper Legal Mechanism for
Dissolving an Out-of-State Same-Sex Marriage in Texas Court.
The Texas Family Code provides three mechanisms for dissolving a marriage: divorce,
annulment, and voidance. See TEX. FAM. CODE 6.001-6.802. Divorce dissolves legally
valid marriages. Id. 6.001-6.008. Annulment dissolves voidable marriages, which suffer
legal defects but are valid unless annulled. Id. 6.102-6.111. And suits to declare a
marriage void provide for the dissolution of void marriages, which never have the force of
law. Id. 6.307 (establishing an action for voidance); id. 6.201-6.206 (grounds for
voidance).
19

1. A judgment in a suit to declare the marriage void would be
enforceable in all fifty states.
A suit to have a marriage declared void is a suit in rem, affecting the status of the
parties to the purported marriage. Id. 6.307(c). A declaration that a marriage is void thus
legally dissolves the relationship and forecloses any claim that the parties remain married.
See, e.g., Hovious, 2005 WL 555219, at *6-7.
20. Although the New York proceeding was called annulment, according to the Court [t]he New York
annulment held the Nevada marriage void. Sutton. at 409. New York, at the time, called the action to
dissolve this void marriage annulment, but Texas today calls the identical action a suit to declare the
marriage void. Regardless of how the action is titled, Sutton makes clear that a judgment dissolving a void,
out-of-state marriage is entitled to full faith and credit in all fifty states and shields the parties from a claim
in another state that they remain married.
21. By contrast, the district courts decree of divorce in this case is not entitled to full faith and credit
because it was entered without jurisdiction. See Baker v. Gen. Motors Corp., 522 U.S. 222, 239 (1998).
32
The U.S. Supreme Court has recognized that a state-court judgment declaring an out-
of-state marriage null and void is entitled to full faith and credit and is conclusive
throughout the nation as to the marital status of the parties. Sutton v. Leib, 342 U.S. 402, 408
(1952). In Sutton, an Illinois woman married in Nevada, but the marriage was declared void
on grounds of bigamy by a New York court. Some time later, an issue arose in an Illinois
lawsuit as to whether the woman remained married to her second husband. Id. at 405-06. The
Supreme Court held that the Full Faith and Credit Clause required Illinoisand indeed all
fifty statesto recognize that New Yorks annulment of the marriage cut off any claim that
the woman remained married.
20
Id. at 408. In the Courts words, because the parties
subjected themselves to the jurisdiction of the New York court and its decree annulling their
Nevada marriage was entered with jurisdiction . . . [the] decree of annulment of their Nevada
marriage ceremony is effective to determine that the marriage relationship . . . did not exist
at the time of filing the present complaint. Id.
21
Thus, if Respondents obtain a voidance
decree from a Texas court, they will be protected against any claim that they remain married.
See also Peters v. Peters, 214 N.W.2d 151, 155 (Iowa 1974) ([W]e give full faith and credit
to the Texas annulment decree.).
33
Furthermore, there is no roving public policy exception to the full faith and credit
due judgments. Baker v. Gen. Motors Corp., 522 U.S. 222, 233 (1998) (citation omitted).
[C]redit must be given to the judgment of another state although the forum [state] would not
be required to entertain the suit on which the judgment was founded. Id. at 232. Thus, no
matter what a court in another state thought of a Texas voidance decree on policy grounds,
it would be required by the Full Faith and Credit Clause of the U.S. Constitution to recognize
the decree as conclusively establishing that the parties are not married.
2. A suit to declare the marriage void provides for property division
and other rights.
A suit to declare a marriage void does not simply terminate the parties legal
relationship. Parties to a suit to declare a marriage void can request and obtain many
additional elements of relief. See TEX. FAM. CODE 1.003 (defining suit for dissolution of
marriage, as used throughout the Family Code, to include suits to declare a marriage void).
For example, temporary restraining orders may be requested during voidance
proceedings. Id. 6.501(a). Name changes are available, id. 45.105, as are claims for
economic contribution, in which one party requests payment for his share of property owned
by the other party, id. 3.404(b). Voidance also allows for property division, though not
based on community property principles. While the Family Code does not expressly provide
any guidance as to the disposition of property remaining after a marriage has been declared
void, case law recognizes that, in one way or another, some disposition is required. Hovious,
2005 WL 555219, at *6 (citing Dean v. Goldwire, 480 S.W.2d 494, 496 (Tex. App.Waco
22. See, e.g., Faglie v. Williams, 569 S.W.2d 557 (Tex. Civ. App.Austin 1978, writ refd n.r.e.) (using
equitable theories of trust law to divide property acquired during a legally invalid marriage); Esparza v.
Esparza, 382 S.W.2d 162, 168 (Tex. Civ. App. Corpus Christi 1964, no writ) (property jointly acquired
during legally invalid marriage should be divided based on each partys contribution to the property).
34
1972, writ refd n.r.e.) (dividing property acquired during void marriage in proportion to the
value [each partys] labor contributed to the acquisition of it)). Courts employ a variety of
equitable means to divide property acquired during a void marriage.
22
To be sure, voidance does not provide the same property division rights that divorce
does, such as community property rights or claims for spousal maintenance. See TEX. FAM.
CODE 7.001-7.009 (providing the property division rules applicable [i]n a decree of
divorce or annulment). But this distinction is precisely the point of Texas law, which limits
the robust protections of divorce to valid marriages, while providing the more limited
remedies of voidance to void marriages.
Finally, the use of voidance rather than divorce would not affect the legal rights of the
Respondents child or the outcome of their SAPCR. A SAPCR can be joined with any suit
for dissolution of a marriage. Id. 103.002. The SAPCR is a separate proceeding, in which
the court determines the parties parental rights without regard to their marital status. Id.
153.003. In any event, Respondents have already obtained an enforceable order resolving
all issues in their SAPCR. CR32-82. To the extent any matters involving the child remain
unresolved, the SAPCR can be joined with a future suit to declare the marriage void and can
proceed just as it would if it were joined with a divorce action.
35
In sum, Respondents can get their void marriage dissolved in Texas court. What they
cannot validly get from a Texas court, however, is recognition of their same-sex marriage or
any of the legal protections that Texas law reserves for validly married parties.
D. Texas Courts Lack Jurisdiction Over Suits for Same-Sex Divorce.
The Fifth and First Courts of Appeals have held that Texas courts lack jurisdiction to
adjudicate a claim for same-sex divorce. Marriage of J.B., 326 S.W.3d at 670 (We hold that
Texas courts lack subject-matter jurisdiction to entertain a suit for divorce that is brought by
a party to a same-sex marriage, even if the marriage was entered in another state that
recognizes the validity of same-sex marriages.); Mireles. v. Mireles, 2009 WL 884815, at *2
(Tex. App.Houston [1st Dist.] Apr. 2, 2009, pet. denied) (voiding a same-sex divorce
decree, holding that 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). This Court should
confirm those holdings and alleviate the confusion that the Third Courts opinion
unnecessarily created about the jurisdiction of Texas courts over same-sex divorce claims.
Although courts of general jurisdiction are presumed to have subject-matter jurisdiction
unless a contrary showing is made, Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84
S.W.3d 212, 220 (Tex. 2002), mandatory requirements are jurisdictional when the application
of statutory-interpretation principles reveals a clear legislative intent that they be so. City of
DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009); Marriage of J.B., 326 S.W.3d at 663-64
(explaining the law of subject-matter jurisdiction in context of same-sex divorce).
36
Section 6.204 evidences a clear legislative intent that Texas courts not exercise
jurisdiction over same-sex divorce claims. To begin with, section 6.204(c)(2) prohibits giving
any legal effect to a right or claim to any legal protection, benefit, or responsibility asserted
as a result of a same-sex marriage. TEX. FAM. CODE 6.204(c)(2). The right of access to
divorce proceedingseven though the divorce remedy may be eventually deniedis plainly
a legal right asserted as a result of a marriage. When the right to invoke the courts
jurisdiction and enjoy the procedural protections of a divorce suit is asserted as a result of a
same-sex marriage, courts are prohibited by section 6.204(c)(1) from giving effect to that right
by exercising jurisdiction over the claim. See Marriage of J.B., 326 S.W.3d at 665 (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 fail to acknowledge that a divorce suit entails much more than an eventual
judgment granting or denying divorce. In addition to the property rights effectuated in a
divorce proceeding, a suit for divorce entitles the parties to procedural and substantive
protections that apply while the suit is pending, regardless of whether the court ultimately
grants a divorce. For instance, during the pendency of a divorce suit, a debt incurred by one
spouse that intentionally subjects the other spouse to liability is void. TEX. FAM. CODE
6.707. Property transactions undertaken during a divorce suit can also be voided. Id. A
court may provide the parties to a divorce suit with court-ordered counseling to determine if
reconciliation is possible. Id. 6.505. And a Respondents failure to answer a divorce suit
23. None of these protections is available in a suit to declare a marriage void.
24. As the Fifth Court of Appeals explained:
A petition for divorce is a claimthat is, a demand of a right or supposed right,
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 414
(1981)to legal protections, benefits, or responsibilities asserted as a result of a marriage,
TEX. FAM. CODE ANN. 6.204(c)(2), one example of such a benefit being
community-property rights. Under section 6.204(c)(2), the State cannot give any effect to
such a petition when it is predicated on a same-sex marriage. 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). In
order to comply with this statutory provision and accord appellees same-sex divorce
petition no legal effect at all, the trial court must not address the merits. In other words, the
court must dismiss for lack of subject-matter jurisdiction.
Marriage of J.B., 326 S.W.3d at 665.
37
does not constitute an admission of the petitions allegations. Id. 6.701.
23
Thus, not only
does a same-sex divorce petition ask the court to give effect to a claim of access to divorce
proceedings, the proceedings themselves provide unique protections to the parties during the
pendency of the suit. By adjudicating a same-sex divorce suit, even if divorce is ultimately
denied, a court thus gives effect to a variety of rights or claims to legal protections and
benefits asserted as a result of a same-sex marriage, in violation of section 6.204(c)(2). The
only way a district court can fully comply with section 6.204(c)(2) when confronted with a
same-sex divorce petition is to dismiss for lack of jurisdiction.
24
Marriage of J.B., 326
S.W.3d at 665 (In order to comply with this statutory provision and accord appellee's
same-sex divorce petition no legal effect at all, the trial court must not address the merits. In
other words, the court must dismiss for lack of subject-matter jurisdiction.).
38
Section 6.204(c)(1) also requires that courts decline to exercise jurisdiction over same-
sex divorce suits. TEX. FAM. CODE 6.204(c)(1) (courts may not give effect to a public
act, record, or judicial proceeding that creates, recognizes, or validates a marriage between
persons of the same sex or a civil union in this state or in any other jurisdiction). The statute
does not simply prohibit granting same-sex marriages or providing rights associated with
them. Rather, it prohibits giving any legal effect whatsoever to an out-of-state record
creating a same-sex marriage. Marriage of J.B., 326 S.W.3d at 665-66 (A same-sex divorce
proceeding would give effect to the purported same-sex marriage in several ways. For one,
it would establish the validity of that marriage as to the parties involved under principles of
res judicata and collateral estoppel.). To find that Naylor has alleged a valid marriage and
invoked the courts jurisdiction by citing her Massachusetts marriage ceremony and marriage
certificate would be to give effect to those acts and records, in violation of section 6.204(c)(1).
Finally, Naylor lacked standing to file the petition, TEX. FAM. CODE 6.001, and
standing is an essential component of subject matter jurisdiction. Tex. Assn of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993)). Generally, courts have held that a dispute
as to the validity of a marriage goes to the merits of a divorce claim, not to the courts
jurisdiction. See, e.g., Narvaez v. Maldonado, 127 S.W.3d 313, 317 (Tex. AppAustin 2004,
no pet.). Respondents contend on this basis that Naylors bare allegation that she is married
is alone sufficient to establish standing. But even taking Naylors pleadings as true, the
petition does not allege a valid marriage. CR91-94. Naylor had already alleged, under the
same cause number, that she and Daly are both mothers of the same child. CR5-6. Thus,
25. Even if the same-sex nature of the marriage was not apparent from the pleadings, the court would be
required to dismiss the case for lack of jurisdiction once it discovered the defect, in light of section 6.204
of the Family Code.
39
there was nothing for the court to adjudicate, because the pleadings in the case affirmatively
allege an invalid marriage. In other words, Naylors pleadings may as well have alleged, I
have no standing to sue for divorce under the Family Code. This is insufficient to invoke the
courts jurisdiction.
25

Furthermore, holding that district courts can exercise jurisdiction over same-sex
divorce actions would create practical problems for the enforcement of judgments. An
incorrect judgment is nonetheless a final, enforceable judgment if the court had jurisdiction
over the parties and the subject matter. If the divorce decree in this case stands,
Respondentsand other same-sex couples who are able to obtain similar decreesmay
attempt to enforce the judgment in the future against each other or against third parties. But
they will be barred from doing so by section 6.204(c)(1), which prohibits courts or any other
government entity from giv[ing] effect to a . . . public act, record, or judicial proceeding that
creates, recognizes, or validates a marriage between persons of the same sex. TEX. FAM.
CODE 6.204(c)(1). A same-sex divorce decree is certainly a public act, record, or judicial
proceeding that recognizes a same-sex marriage. Thus, even if the decree was issued with
jurisdiction, no governmental entity could give it any force or effect in the future, and the
parties to the decree could never enforce it.
The text of section 6.204 provides no reason to think the Legislature intended the
bizarre scenario in which a judgment issued by a Texas court with jurisdiction is nonetheless
26. Respondents have previously cited Aucutt v. Aucutt, 62 S.W.2d 77, 79 (Tex. 1933), for the proposition
that there is reason to believe that any attempt to strip Texas district courts of jurisdiction over divorce
actions would in fact run afoul of the Texas Constitution. Appellee Angelique Naylors Brief at 24, State
v. Naylor, No. 031000237CV (Tex. App.Austin Sep. 30, 2010). But the Texas Constitution has
changed since 1933. It no longer expressly gives district courts jurisdiction over all cases of divorce.
Aucutt, 62 S.W.2d at 79. Instead, it generally grants district courts original jurisdiction of all actions,
proceedings, and remedies. TEX. CONST. art. V, 8. But this general grant of jurisdiction does not prohibit
the Legislature from placing reasonable restrictions on the courts jurisdiction over statutory causes of action,
such as Naylors action for divorce under the Family Code. See CR371 (Petitioner is seeking a divorce
pursuant to Texas Family Code Section 6.001). In addition, the Texas Constitution speaks specifically to
this issue by defining marriage to exclude same-sex unions. TEX. CONST. art. I, 32(a). Any general
constitutional jurisdiction over divorce actions, even if it existed, would have to yield to the Constitutions
specific prohibition on recognition of same-sex marriages. See supra at 25-29 (permitting access to divorce
proceedings recognizes and gives effect to the same-sex marriage).
40
a legal nullity. Instead, the simplest reading of the statutory text is that the Legislature
intended for district courts to lack jurisdiction over suits for same-sex divorce. This outcome
is consistent with the overall intent of the statute and is also the simplest way to ensure that
no conflict arises between the enforceability of final judgments and the dictates of section
6.204. Under the plain terms of section 6.204, an out-of-state, same-sex marriage is a legal
nullity that can give rise to nothing of legal consequence, including even a judgment denying
a claim for same-sex divorce. See Marriage of J.B., 326 S.W.3d at 665 (In order to comply
with this statutory provision and accord appellee's same-sex divorce petition no legal effect
at all, the trial court must not address the merits. In other words, the court must dismiss for
lack of subject-matter jurisdiction.).
26
III. TEXASS TRADITIONAL MARRIAGE LAWS ARE CONSISTENT WITH THE U.S.
CONSTITUTION.
The court below made no constitutional ruling. In fact, it made no legal ruling at all,
other than to grant the divorce. But Naylor argued in her response to the States plea to the
jurisdiction, and both Respondents argued on appeal, that there is a Fourteenth Amendment
41
right to same-sex divorce. Both United States Supreme Court precedent and well-established
Fourteenth Amendment principles foreclose this argument.
A. Baker v. Nelson Forecloses Any Claim of a Constitutional Entitlement to
Same-Sex Divorce.
In Baker v. Nelson, 409 U.S. 810 (1972), the Supreme Court rejected the claim that
same-sex couples have a Fourteenth Amendment right to marriage or to the legal rights
associated with marriage. The plaintiffs in Baker presented two distinct theories. See Baker
v. Nelson, Jurisdictional Statement, No. 71-1027 (Oct. Term 1972); Tab 5. First, they
maintained that [t]he right to marry is itself a fundamental interest, fully protected by . . . the
Fourteenth Amendment. Id. at 11. They also presented a second, distinct theory of relief.
They argued that [i]n addition to the right to marry . . . itself, there are significant
property interests [that] flow from the legally ratified marital relationship, and that those
property interests are also protected by the due process clause. Id. at 11. The plaintiffs
urged that marriage comprises a bundle of rights and interests. Id. at 12. They went on to
detail several examples, including inheritance and property benefits, tax benefits, and marital
privileges against testifying in court. Id. at 11-12.
The U.S. Supreme Court unanimously rejected these arguments and ordered that the
appeal [be] dismissed for want of a substantial federal question. Baker, 409 U.S. at 810.
This was a common Supreme Court ruling when, prior to 1988, the Supreme Court was
required to hear all appeals from state supreme court rulings presenting federal constitutional
questions. See 28 U.S.C. 1257 (1988).
27. Some state courts have used their respective state constitutions to impose a requirement that same-sex
couples and male-female couples receive equal marriage rights, a result that Texas voters have precluded by
amending the Texas Constitution. See TEX. CONST. art. I, 32.
28. See, e.g., Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 870-71 (8th Cir. 2006) (citing Baker in
rejecting constitutional claim to same-sex marriage); Littleton v. Prange, 9 S.W.3d 223, 225-26 (Tex.
AppSan Antonio 1999, pet. denied) (citing Baker, noting that courts have soundly reject[ed] the concept
of same-sex marriages); McConnell v. Nooner, 547 F.2d 54, 56 (8th Cir. 1976) (denying claim for spousal
veterans benefits to same-sex couple because Baker already decided the issue); Adams v. Howerton, 486 F.
Supp. 1119, 1124 (C.D. Cal. 1980) (finding Baker dispositive on the question of whether same-sex couple
with a Colorado marriage license was entitled to spousal immigration benefits); Wilson v. Ake, 354 F. Supp.
2d 1298, 1304-05 (M.D. Fla. 2005) (dismissing claim that Florida must recognize a Massachusetts marriage
because Baker is binding precedent upon this Court); Langan v. St. Vincents Hosp. of N.Y., 25 A.D.3d 90,
94 (N.Y. App. Div. 2005) (Based on . . . Baker . . . we agree . . . that purported homosexual marriages do
not give rise to any rights [of survivorship] and that no constitutional rights have been abrogated or violated
42
A summary dismissal for want of a substantial federal question is a precedential ruling
on the merits that binds all state and lower federal courts. See Mandel v. Bradley, 432 U.S.
173, 176 (1977) (per curiam); Hicks v. Miranda, 422 U.S. 332, 344 (1975) (quoting C.
Wright, LAW OF FEDERAL COURTS 495 (2d ed. 1970)) (Summary disposition of an
appeal, . . . either by affirmance or by dismissal for want of a substantial federal question, is
a disposition on the merits). Summary dispositions bind lower courts not only in later cases
involving identical claims, but also in later cases involving the same questions of
constitutional law. See, e.g., Doe v. Hodgson, 478 F.2d 537, 538-40 (2d Cir. 1973) (summary
affirmance upholding federal statute bound Second Circuit when other statutes were
challenged using the same constitutional theory).
Accordingly, Baker remains binding precedent on all state and federal courts.
27
As a
result, many courts in Texas and across the nation have recognized that Baker requires
rejection of constitutional challenges to the traditional definition of marriage, including claims
for various legal rights associated with marriage.
28
This Court should do the same.
in so holding.) (citations omitted); Morrison v. Sadler, 821 N.E.2d 15, 19-20 (Ind. Ct. App. 2005)
(describing Baker as binding United States Supreme Court precedent indicating that state bans on same-sex
marriage do not violate the United States Constitution); Hernandez v. Robles, 26 A.D.3d 98, 115 (N.Y. App.
Div. 2005) (Plaintiffs equal protection claim is foreclosed by the Supreme Courts summary disposition
in Baker v. Nelson.); Andersen v. King County, 138 P.3d 963, 999 (Wash. 2006) (en banc) ([In Baker,] the
same-sex union as a constitutional right argument was so frivolous as to merit dismissal without further
argument by the Supreme Court) (Alexander, C.J., concurring).
But see, e.g., Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) affd in part, vacated
in part on other grounds by 447 F.3d 673 (9th Cir. 2006) (rejecting same-sex marriage claim on the merits);
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) (same); Gill v. Office of Pers. Mgmt., 699 F. Supp.
2d 374, 397 (D. Mass. 2010) (mem. op.) (holding portion of federal Defense of Marriage Act that restricts
federal marriage benefits to male-female couples unconstitutional)
29. Every federal court of appeals to address the issue has held that sexual orientation is not a suspect or
quasi-suspect classification triggering greater than rational basis scrutiny. See, e.g., Johnson v. Johnson, 385
F.3d 503, 532 (5th Cir. 2004) (Neither the Supreme Court nor [the Fifth Circuit] has recognized sexual
orientation as a suspect classification or protected group.); High Tech Gays v. Defense Indus. Secy
Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990) (holding that homosexuals are not . . . a suspect or
quasi-suspect class entitled to greater than rational basis scrutiny); Lofton v. Secy of Dept of Children &
Family Servs., 358 F.3d 804, 818 (11th Cir. 2004) (same). Because there is no suspect class involved and
no fundamental rights are implicated, see infra at 45-47, the Court should apply rational basis review. See,
e.g., Romer v. Evans, 517 U.S. 620, 631 (1996) (applying rational basis scrutiny to Colorado law affecting
homosexuals and noting that if a law neither burdens a fundamental right nor targets a suspect class, we will
uphold the legislative classification so long as it bears a rational relation to some legitimate end); see also
Lawrence v. Texas, 539 U.S. 558 (2003) (applying rational basis scrutiny to Texas sodomy law).
43
B. Texass Provision of the Rights of MarriageIncluding DivorceOnly to
the Union of One Man and One Woman Does Not Violate the Fourteenth
Amendment.
The Fifth Court of Appeals recently declined to recognize Baker as binding on the
same-sex divorce question and instead upheld Texas laws prohibiting same-sex divorce based
on a thorough Fourteenth Amendment analysis. Marriage of J.B., 326 S.W.3d at 671-72
(according Baker weight in its equal protection analysis but declining to find it directly
binding). Under this analysis as well, Texas law must be upheld.
1. Texas law does not violate the Equal Protection Clause.
When those who appear similarly situated are nevertheless treated differently, the
Equal Protection Clause requires at least a rational reason for the difference.
29
Engquist v.
44
Oregon Dept of Agric., 553 U.S. 591, 602 (2008) (emphasis added). Rational basis review
is a paradigm of judicial restraint, under which courts must apply a strong presumption of
validity to the challenged statute. FCC v. Beach Commcns, Inc., 508 U.S. 307, 314 (1993).
[T]he burden is on the one attacking the legislative arrangement to negative every
conceivable basis which might support it. Heller v. Doe, 509 U.S. 312, 320 (1993) (citation
omitted).
Texass decision to maintain a traditional definition of legal marriage easily satisfies
the highly deferential rational basis standard. No other kind of relationship is similarly
situated to the naturally procreative relationship between one man and one woman. The
primary reason governments provide unique support for and enforcement of the special union
of one man and one woman is to encourage stable family environments for procreation and
the rearing of children by a mother and a father. This is more than merely rational. It is
fundamental to the very existence and survival of the race. See Skinner v. Oklahoma ex rel.
Williamson, 316 U.S. 535, 541 (1942) ([m]arriage and procreation are fundamental to the
very existence and survival of the race); Loving v. Virginia, 388 U.S. 1, 12 (1967) (Marriage
is . . . fundamental to our very existence and survival.) (emphasis added); see also Bruning,
455 F.3d at 867-68; Wilson, 354 F. Supp. 2d at 1308-09; Morrison v. Sadler, 821 N.E. 2d 15,
24-26 (Ind. Ct. App. 2005); Lawrence, 539 U.S. at 585 (2003) (OConnor, J., concurring)
(recognizing a legitimate state interest in preserving the traditional institution of
marriage).
45
Simply put, marriage between a man and a woman is a special relationship.
Throughout centuries of human history in civilizations all over the world, societies have
recognizedand their governments have given legal effect and enforcement tothe
institution of marriage as exclusively the union of one man and one woman. And the reason
is neither complicated nor controversial: The naturally procreative relationship between a
man and a woman is uniquely deserving of special societal support and protection, both to
encourage responsible procreation and to increase the likelihood that children will be raised
by a mother and a father in the context of stable, long-term relationships. These legitimate
state interests are uniquely promoted through governmental recognition and enforcement of
marriage as the union of one man and one woman.
Respondents may argue that denying the rights of marriage to same-sex couples does
not promote the States interests in responsible procreation and the raising of children by a
mother and a father, or put another way, that allowing same-sex couples to divorce would not
harm the States interests in marriage. But these formulations turn the highly deferential
rational basis inquiry on its head. See Bruning, 455 F.3d at 868 (rejecting argument that
prohibiting protection for gay peoples relationships does not steer procreation into
marriage). A classification has a rational basis where the inclusion of one group promotes
a legitimate government purpose, and the addition of other groups would not. Johnson v.
Robison, 415 U.S. 361, 383 (1974). Thus, the pertinent question is whether there is a rational
basis on which to favor male-female couples over same-sex couples when allocating legal
rights intended to promote stable environments for procreation and the rearing of children by
46
a mother and a father. Providing the legal benefits of marriage to the union of one man and
one womanincluding the protections of divorce, such as community property rights and the
right to spousal maintenanceuniquely promotes these legitimate state interests in a way that
providing the same benefits to same-sex couples simply does not. See Morrison, 821 N.E.2d
at 35 (Regardless of whether recognizing same-sex marriage would harm th[e states] interest
. . . in encouraging opposite-sex couples to procreate responsibly and have and raise children
within a stable environment . . . neither does it further it.).
2. There is no fundamental due process right to same-sex divorce.
In Boddie v. Connecticut, the Supreme Court held that divorce can implicate
fundamental due process rights, but only because of the basic importance in our society of
the traditional institution of marriage. 401 U.S. 371, 376 (1971); see also Loving, 388 U.S.
at 12 (recognizing the freedom to marry or not marry because marriage is fundamental to
our very existence and survival). Any right to divorce that may exist is derivative of, and
contingent upon, the existence of a right to marriage. In other words, the personal rights of
the deepest significance that divorce affects are the rights of traditional marriage. Williams
v. North Carolina, 325 U.S. 226, 230 (1945).
Virtually every court to address the issue, including the U.S. Supreme Court, has held
that there is no fundamental right to same-sex marriage under the U.S. Constitution. See, e.g.,
Baker, 409 U.S. at 810; Bruning, 455 F.3d at 866-67; Wilson, 354 F. Supp.2d at 1307-08;
Smelt v. County of Orange, 374 F. Supp. 2d 861, 879 (C.D. Cal. 2005); In re Kandu, 315 B.R.
123, 144 (Bankr. W.D. Wash. 2004); but see Perry v. Schwarzenegger, 704 F. Supp. 2d. 921
47
(N.D. Cal. 2010). And because there is no fundamental right to marry a person of the same
sex, a same-sex divorce is not, from a constitutional perspective, the adjustment of a
fundamental human relationship to which all citizens [must be afforded] access. Boddie,
401 U.S. at 376; see also Sosna v. Iowa, 419 U.S. 393, 406-07 (1975).
Moreover, Massachusetts does not impose on all other states an obligation to recognize
new fundamental liberty interests simply by choosing to grant same-sex marriages. If
Massachusetts could do so, then the federal Defense of Marriage Act, which gives the force
of federal law to Texass refusal to recognize out-of-state same-sex marriages, would be
invalid. In other words, if the Constitution requires Texas to treat Respondents as if they are
married simply because their marriage is valid in Massachusetts, then DOMA is
unconstitutional. But every court to address this aspect of DOMA has upheld it as consistent
with the Fourteenth Amendment. See, e.g., Wilson, 354 F. Supp. 2d at 1303, 1307-09; Smelt,
374 F. Supp. 2d at 880.
The U.S. Supreme Court, not Massachusetts, determines which rights are deemed
fundamental under the Due Process Clause. And the Supreme Court has mandated the
exercise of utmost care whenever we are asked to break new ground in declaring
fundamental rights. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Under
Glucksberg, a fundamental right is one that is (1) deeply rooted in this Nations history and
tradition, and (2) implicit in the concept of ordered liberty, such that neither liberty nor
justice would exist if they were sacrificed. Id. at 721.
48
There is no fundamental right, either deeply rooted in our Nations history and tradition
or implicit in the concept of ordered liberty, to a same-sex divorce. No same-sex marriage
rights existed in American tradition until a few years ago, and even today, only six out of fifty
states permit same-sex marriages. At least thirty-nine states have statutes or constitutional
amendments outlawing same-sex marriage and limiting the rights of marriage to male-female
couples. To paraphrase Glucksberg, the history of the laws treatment of [same-sex
marriage] in this country has been and continues to be one of the rejection of nearly all efforts
to permit it. Id. at 728. That being the case . . . the asserted right . . . is not a fundamental
liberty interest protected by the Due Process Clause. Id.
Finally, even if same-sex couples did have a constitutional right to have their out-of-
state marriages terminated by the state in which they reside (and they do not), Texass
provision of voidance achieves that result. Voidance legally terminates the relationship,
provides for property division, enforces settlement agreements, and must be recognized in all
fifty states. See supra at 30-34. If this case is truly about the parties desire to move on with
their livesand not about same-sex marriage rights more broadlythere is no reason for the
parties to defy Texas law by seeking divorce rather than pursuing a suit to declare the
marriage void.
3. The Full Faith and Credit Clause does not require Texas to grant
same-sex divorces.
The U.S. Constitution provides that Full Faith and Credit shall be given in each State
to the public Acts, Records, and judicial Proceedings of every other State. U.S. CONST. art.
30. In Massachuetts v. USDHHS, the district court declared unconstitutional only the part of DOMA that
restricts the federal benefits of marriage to opposite-sex couples. 698 F. Supp. 2d 234 (D. Mass. 2010). That
case is on appeal in the First Circuit. The other part of DOMA, which permits states to deny effect to
out-of-state same-sex marriages, was not at issue in that case and has never been held unconstitutional.
49
IV, 1. The Full Faith and Credit Clause also expressly gives Congress the power to
prescribe . . . the Effect of a states acts and records in another state. Id. Congress did
exactly that when it passed the Defense of Marriage Act (DOMA), which provides:
No State, territory, or possession of the United States, or Indian tribe, shall be
required to give effect to any public act, record, or judicial proceeding of any
other State, territory, possession, or tribe respecting a relationship between
persons of the same sex that is treated as a marriage under the laws of such
other State, territory, possession, or tribe, or a right or claim arising from such
relationship.
28 U.S.C. 1738C; see Wilson v. Ake, 354 F. Supp. 2d 1298, 1303 (M.D. Fla. 2005)
(Congress actions in adopting DOMA are exactly what the Framers envisioned when they
created the Full Faith and Credit Clause.). DOMA clarifies that Texas has no constitutional
obligation to recognize or give effect to an out-of-state same-sex marriage. By adopting
section 6.204 of the Texas Family Code and article I, section 32 of the Texas Constitution,
Texas simply exercised the right that DOMA guarantees to all states, a right to refuse
recognition to out-of-state same-sex marriages.
30
Furthermore, even apart from DOMA, Texas is under no obligation to recognize out-
of-state marriages that run afoul of Texass clearly stated public policy on marriage. The
Full Faith and Credit Clause does not compel a state to substitute the statutes of other states
for its own statutes dealing with a subject matter concerning which it is competent to
legislate. Baker v. Gen. Motors, 522 U.S. at 233 (distinguishing between the exacting full
50
faith and credit due judgments and the lesser obligations due other out-of-state acts and laws,
which are subject to a public policy exception). The U.S. Supreme Court has specifically
noted that this rule applies to the recognition of out-of-state marriages. See 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). Thus, Texas has no obligation,
constitutional or otherwise, to recognize an out-of-state same-sex marriage, 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); see also Marriage of J.B., 326 S.W.3d at 669 (citing K.D.F. v. Rex, 878
S.W.2d 589, 595 (Tex.1994)) (We do not extend comity to the laws of other states if doing
so would result in a violation of Texas public policy.).
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.
51
Respectfully submitted,
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
/s/ James D. Blacklock
JAMES D. BLACKLOCK
Assistant Solicitor General
State Bar No. 24050296
OFFICE OF THE ATTORNEY GENERAL
P. O. Box 12548
Austin, Texas 78711-2548
[Tel.] (512) 936-8160
[Fax] (512) 474-2697
jimmy.blacklock@oag.state.tx.us
COUNSEL FOR PETITIONER
52
CERTIFICATE OF SERVICE
I certify that on September 19, 2011, I sent a true and correct copy of the foregoing to
the following counsel of record by electronic mail and/or U.S. certified mail, return receipt
requested:
James J. Scheske
AKIN GUMP STRAUSS HAUER FELD LLP
300 West 6th Street
Suite 2100
Austin, Texas 78701-3911
(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
Appendix
INDEX TO APPENDIX
Hearing Excerpt, February 9, 2010, RR2:6-33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 1
Hearing Excerpt, February 10, 2010, RR3:6274 . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 2
Hearing Excerpt, February 10, 2010, RR3:100116 . . . . . . . . . . . . . . . . . . . . . . . . . Tab 3
Hearing Excerpt, March 31, 2010, RR4:2332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 4
Baker v. Nelson, Jurisdictional Statement, No. 71-1027 (Oct. Term 1972) . . . . . . . Tab 5
1
6
r
"
1
THE COURT: We're on the record in
3
2
FM-09-000050. Would you announce --,
4 MR. LUTHER: May I --
5 THE COURT: No, you may not say .anything
6 until you announce your presence for the record. You
7 asked f6r a record just a minute ago, and I certainly
8 want to do that for you. .Would you please annouhce your
9 presence for the record.
10. MR. LUTHER: Thank you, rour Honor. My
11 name is.Bob Luther,. and I am here representing the
12 respondent and movant on the pursuant motion, S.abina
13 Daly.
14 THE COURT: All right.
15 MS. COCHRAN: I'm Jennifer Cochran, and
16 I'm the attorney for the petitioner, Angelique'Naylor.
17 THE COURT: All right, Counsel. We have
18 just had a discussion off the record, and there's been
19 some confusion certainly on my part. The docket sheet
20 that came to me did not list some motions which one
21 or -- well, which each one of you for different reasons
22 . apparently believe should be considered by me today.
23 The motions that I do have on the docket sheet are
24 respondent's motion to dismiss, special exceptions,
25 motion to strike and temporary orders motion to'declare
;
5
10
15
20
25
7
,1
2
3
4
6
7
8
9
11
12
13
14
16
17
~
19
21
22
23
24
marriage void. I don't know'what that is, and maybe
that's a misstatement.
What you have added to this list which was
not sent to me by the court administrator was
respondent's motion to compel, respondent's motion to
dismiss petitioner's motion to modify the SAPCR, and
petitioner's motion to enforce and for sanctions, that
is, motion to enforce the standing orders, and
petitioner's request for temporary orders.
I believe I've correctly identified your
motions, but you've told me that you now have disputes
about whether some of these motions can be heard by me
today because one or both of you feel that the other has
not complied perhaps with our local rules. You've asked
for five minutes to argue that at which time I will make
a decision about what I will be hearing.
Mr. Luther, it's been agreed by you
that -- by both of you you may go first, and I'll let
you know when your time is up.
MR. LUTHER: Thank you. Your Honor, I
think "perhaps" is a good word to describe this.
Clearly the motion to dismiss was set and everybody
understood it, and this setting was actually achieved
somewhat by agreement when Ms. Naylor was unrepresented
by counsel. Subsequent to that time, Ms. Naylor, on her
{}.
8
(]

(J
1 behalf, Ms. Cochran has filed a motion for temporary
2 orders and a motion to enforce the standing order. If
3 the Court allows us to hear our motion to compel, which
4 is essentially a response to their motion to enforce the
5 order, if -- I believe that they all should be
6 heard at the same time because they all touch on facts ; ''l
7 that we will simply be relitigating at a later time.
8 THE COURT: Let me get some precision
9 here. You're glad to -- you're willing to have the
10 petitioner's motion to enforce and for sanctions heard
11 as long as your motion to compel is he.ard concomitantly?
12 MR. LUTHER: That is correct.
13 THE COURT: All right. What is your
14 position with respect to petitioner's request for
15 temporary orders?
16 MR. LUTHER: The same thing. It was all
17 sent to me ,in that one big document. There was a
18 hearing notice that she just added onto today. She did
19 not ask me for permission. But I believe that the same
20 facts that would be heard today would support a
21 determination of that motion.. And I believe, in all
22 fairness and judicial economy, itmakes sense to hear it
- .5
23 all today. So my objection to the motion for temporary
I
/ 24 orders and her motion to enforce the interim order would
,
..)
25 be a failure to set, and all of those motions do not
,
,)
l
,
)
j
J
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
9
need to be heard or they all need to be heard, depending
on whether the Court believes it appropriate.
THE COURT: So either hear them all or
don't hear any of these o r e r ~ which I added onto the
;
docket sheet, the docket sheet listing only the motion
to dismiss and related orders by you?
MR. LUTHER:. Yes, s i r ~ because the basis
for that would be there was no agreement to add it to
the docket . However , I will tell you that I don't think
we could actually add anything else to the docket
because one of the interesting things was we got back
from the court administrator that they were running out
of room to put all the motions that were set for today.
So, I mean, literally typing it in was a problem. So in
any case, I came here prepared to go forward on
everything.
THE COURT: Our equipment will not allow
beyond X number of motions? That's interesting.
MR. LUTHER: That's right.
THE COURT: All right. I'll have to find
out about that, too. All right. That's your position.
You're willing to have them all heard or you're willing
to have none of them heard except the motion to dismiss
and related orders?
MR. LUTHER: Yes, sir.
5
10
15
20
25
1
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
10
THE COURT: All right. Anything else?
MR. LUTHER: No, sir."
THE COURT: Thank you, Mr. Luther.
Ms. Cochran?
MS. COCHRAN: Your Honor, on the motion to
compel, that was actually filed by Mr. Luther on January
the 26th.
THE COURT: Let me become a mediator here
for a minute, at least with respect to the hearing on
. what I will hear ..
MS. COCHRAN: Okay.
THE COURT: Are you agreeable to having
his motions heard along with your motions? That is to
say, if you have your motion to enforce and for
sanctions heard, he wants his motion to compel heard.
I f you have your motion to dismiss -- I'm sorry. If you
have your motion or request for temporary orders
heard, he wants his motion to dismiss plaintiff's motion
to modify SAPCR heard. Are you agreeable to that?
MS. COCHRAN: Yes.
THE COURT: Great.
MS. COCHRAN: But I do want to clarify --
THE COURT: Okay. Well, that could have
been done before you told me this.
MS. COCHRAN: And that's what we kind of
U
(1
of'
4...'IJ.
~ ;J
. ,
J
. ~
. :)
)
J
J
J
)
5
10
15
20
25
11
1 figured would happen.
2 THE COURT: Okay.
3 MS. COCHRAN: But the motion to enforce--
4 my motion to enforce --
THE COURT: All right.
6 MS. COCHRAN: -- is in .response to his
7 motion to compel. The motion to compel came first. So
8 I just wanted to clarify that for record.
9 THE COURT: Well, it hardly matters, as
long you're both in agreement. I'm just --
II apparently you didn't know you were in agreement.
12 You're in agreement -- you're both in agreement to have
13 all these things heard. I heard a few minutes ago that
14 there was a problem with that, but I want to confirm for
the record you are both in and waive any
16 problems for a failure to comply with the local rules to
17 having all the motions heard that I just listed a few
18 minutes ago?
19 MS. COCHRAN: Yes.
THE COURT: Mr. Luther?
21 MR. LUTHER: Hold on,Your Honor. Your
22 Honor, the motion to dismiss --
23 THE COURT: No. I'm sorry. Let me get my
24 simple question answered. I don't mean to -- I don't
mean to sound condescending at all. Are you in
12

"\ .j
1 agreement -- Ms. Cochran just said yes to my question.
2 Are you in agreement, as you just said a minute agol to
3 having all of the motions that I listed a few minutes
4 ago heard today?
MR. LUTHER: Yes, sir. 5
6 THE COURT: Great. We're through with the
7 hearing on what I'm going to hear. I'm to hear
8 everything. Now, is there something else preliminary to
9 starting this hearing on the merits of the motions?
10 MR. LUTHER: Yes, sir; just to clarify.
11 THE COURT: Sure.
12 MR. LUTHER: Embedded in all of these
13 motions is a request for attorneys' fees. And I don't
14 know whether that appends to the motion to dismiss or as
.15 part of the motion for temporary orders. I don't know
16 where that fits. It is a request that we made several
17 different times. And so it is a
18 THE COURT: You're adding another matter
19 that- you wish for me to decide today that we have not
20 yet listed and that is some request for attorneys' fees?
21 MR. LUTHER: It is part of the motion to
22 dismiss, so it's all -- so it's actually in your list. --
23 THE COURT: Well, if it's in the motion,
)
24
; j
then it's in the motion. Whatever relief you're
25 requesting in these motions that I listed is the relief
13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
you're requesting.
MR. LUTHER: Yes, sir.
THE COURT: And I certainly think that's
subsumed if it's in the motion.
MR. LUTHER: Yes, sir. When we're talking
about these things and trying to define what's to be
heard, I don't want you to be surprised by some relief
that sounds ancillary to that might not have
been brought up before.
THE COURT: Okay.
MR. LUTHER: So we're fine. I want
everything heard today.
THE COURT; Okay.
MR. LUTHER: And the Court's ruled on
that.
THE COURT: All right. NOw, have you had
a chance to talk to each other about allocation of time,
about what it is you intend to do today, sharing any
exhibits you may have so that we don't waste time with
things that could be agreed to, in other words, the
order of proceedings for today, the order of the
motions, what goes first, what goes second, how much
time for each, et cetera? Have you had an opportunity
to do that in all the time I made you wait?
MS. COCHRAN: No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
14
MR. LUTHER: No, Your Honor.
THE COURT: Okay. Do we need to recess
and have you -- will there be exhibits that you need to
show the other side so we don't have -- you know, waste
time with things that we could agree to? Do you have
some exhibits today, Mr. Luther?
MR4 LUTHER: Yes, sir.
THE COURT: Okay. Have you shown them to
Ms. Cochran?
MR. LUTHER: I have not.
THE COURT: Okay. Do you have exhibits,
Ms. Cochran?
MS. COCHRAN: Yes.
THE COURT: Have you shown them to
Mr. Luther?
MS. COCHRAN: No.
THE COURT: How long would you like to
have to do some more preliminary sharing of information
before we start the hearing on the merits of these
motions?
MR. LUTHER: Fifteen minutes.
THE COURT: You would like 15 minutes.
Ms. Cochran?
MS. COCHRAN: Yes.
THE COURT: Great. I'll give you
5
10
15
20
25
15
1 15 minutes. And in addition to sharing that, of course,
2 I may, disagree about how much time you get for each, but
3 probably certainly for evidentiary matter.s I want to
4 give you the time that you need. Have you shared with
each other how much time you believe you need for each
6 one of the motions?
7 MS. COCHRAN: No.
8 MR. LUTHER: No, we have not.
9 THE COURT: Okay. Do that in your
15 minutes, too. When I come back out, I would like to
11 have maximum agreements about how you want to organize
12 the hearings, how much time you will have. Of course,
. ,
'13 each time has -- each side has equal time. And
14 understand that once you commit to that time, when you
hit that last minute, you will not have another minute.
16 I've interrupted lawyers. This has happened about three
17 times in my ten years, and literally there's a witness
18 on the stand they cannot question or ask another
19 question of because they've run out of time and they've
been injudicious in their use of time. So give yourself
21 plenty of time. But as soon as I finish this case, they
22 will give me another case, and so I will hold you to
23 your time announcements, so please be very careful about
24 your time announcements.
All right. Also, there are two things I
16 ~
1
2
3
4
5
6
7
8
9
.10
'11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
r - - - - - - - ~ - - - - - - - - - - - - - - - - - - - - - - ~ ~ - - ~ - - - - - - - - - - - - - - ~ - - - - - - - - - - _ A
; ~ "j
would like to have from you. I do have I think the
Attorney General's opinion to which you allude. Does
anyone have -- having only sped-read since I only got
word of this this morning when the hearing was about to
begin of the fairly unique nature of the motion to
dismiss and the unique legal issue before me that is a
matter of first impression for me, does anyone have a
copy of whatever was written by the state district judge
on a matter which I believe is very similar to what you
.are asking me to confront and, as far asI know, is the
only matter that has yet been decided in Texas directly
on point with regard to the issues you're giving me
today?
MS. COCHRAN: Yes, Your Honor. I actually
have the findings of fact and conclusions of law that I
just received last night.
THE COURT: Great.
MS. COCHRAN: It's not a certified copy.
THE COURT: That's okay. Do you have a
copy for Mr. Luther of that?
Or Mr. Luther, do you already have your
own? I would assume both of you would have thought of,
you know, that case. Based on what I've read, it
certainly seems similar.
MR. LUTHER: It is. And we've gotten the
j
.;.
. .j
i
5
10
15
20
25
17
1 order that was signed, but I do not have the findings of
2 fact. That's apparently very recent.
3 THE COURT: Okay. Great. Well, she's got
4 one for you, I'm sure. And if she doesn't, she'll get
that now.
6 MS. COCHRAN: This is the only one I have.
7 THE COURT: That's the only one you have.
8 Okay. Well, let's go get copies run. Mr. Luther needs
9 a copy. I need a copy. And we'll go from there. I'd
like to read that during the 15 minutes that I have
11 while you try to organize, you know, and get through
12 your logistical discussion.
13 MS. COCHRAN: And I believe I also have --
14 I'm sorry. We also have the notice of appeal from the
Attorney General on the intervenor's --
16 THE COURT: Is there any briefing on that?
17 MS. COCHRAN: There's some law.
18THE COURT: Interestingly, in my
19 speed-reading of what you filed, I noted that the
petitioner references -- on Page 8 of your response to
21 respondent's motion to dismiss, you say "the voidance
22 procedure suggested by the respondent and the State of
23 Texas as a substitute for divorce." There's no briefing
24 in this case. The Attorney General has not made any
appearance in this case --
5
10
15
20
25
18
n
. ~ ~ ~ ~ n
o
MS. COCHRAN: No. 1
{]
THE COURT: -- or filed any briefing? 2
f)
3. MS. COCHRAN: No.
4 THE COURT: Okay. What are you referring
to on Page 8 of your response that I just quoted? When
6 you say "the voidance procedure suggested by the State
7 of Texas," to what are you alluding?
8 MS. COCHRAN: I must have been alluding to
9 the order. I apologize if I took out the
THE COURT: And lim sorry. What order?
11 MS. COCHRAN: The Dallas County order.
12 THE COURT: Okay.
13 MS. COCHRAN: I apologize.
14 THE COURT: So you're referring to some
briefing that occuried in that Dallas case which I'm not
16 privy to?
17 MS. COCHRAN: Correct.
18 THE COURT: Okay.
19 MS. COCHRAN: When I was updating it --
THE COURT: Were you involved in that
21 case? Is this briefing that was used in that case?
22 MS. COCHRAN: No.
23 THE COURT: Okay.
24 MS. COCHRAN: I have all that information.
I did refer to it. But when I updated my information
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
19
last night, I must have taken it out. I apologize.
THE COURT: That's okay. I just want to
make sure I'm reading everything. And when you
re.ference that --
MR. LUTHER: (Stood up.)
THE COURT: I'll give you a turn to speak
when she's through and she sits down. That'll be a sign
that she's through. I can tell you want to stand when
she sits.
Okay. So I should just not worry about
that language on Page 8?
MS. COCHRAN: Yeah. Let me -- if I
could -- if I may just quickly review it --
THE COURT: Sure.
MS. COCHRAN: -- and see if I reference -
yeah, I did'some updating.
THE COURT: All right.
.,
MS. COCHRAN: I apologize.
THE COURT: I think that's all I need from
you then. Just please give me as quickly as you can
those findings of fact and conclusions of law. By the
way, I don't have a certificate of service on
petitioner's motion to deny and brief in opposition to
respondent's motion to dismiss. When was this filed,
this briefing?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I
the
MS. COCHRAN: I haven't filed it yet. I
had an answer, but then
. '-
--
THE COURT: Why don't you stand back there
so he can hear you, too. The acoustics are .terrible in
this courtroom. When you're in fron.t of somebody, it's
hard to hear.
MS. COCHRAN: I prepared that brief for
today's hearing and gave Mr. Luther a copy this morning.
have not filed it yet.
THE COURT: So like me, he was just --
first opportunity he had to read this briefing,
including the full faith and credit clause briefing and
the -- well, especially that, quite frankly, was this
morning?
MS. COCHRAN: Yes, Your Honor.
THE COURT: Okay. And I have no briefing
from you on the full faith and credit clause,
Mr. Luther. Aren't we going to need to fully brief that
for me to decide this motion to dismiss? And if so,
when will we have that full briefing?
MR. LUTHER: Well, the reason it was not
briefed is because it was not pled, and
THE COURT: I understand. But now here it
is, and so -- and I'm -- so -- and it probably isn't a
shock to you that they are raising this issue. It
. )
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
21
certainly isn't a shock to me. It was the first thing
that popped into my brain; what about the Full Faith and
Credit Clause; where is the briefing on that? And I
have some briefing from her, but she just brought it
today. When will you be doing briefing on that?
MR. LUTHER: Your Honor, the -- in answer
to your question, it is a specific choice to assert a
constitutional defense to a pleading, and if you don't
plead it and you go to court wi.thout a pleading, it is
reasonable for me that they are not making
those arguments because not' making those -- I understand
that -:- ,
THE COURT: Excuse me. I'm not-- I sound
like I'm being hard on you. I'm not. You didn't know
until today
MR. LUTHER: Yes, sir.
THE COURT: that they were raising
this, although it's probably not a to you that
they are deciding to raise It's certainly not a
shock to me. And I just have had, you know, a few
minutes before I came out here. But now that you know
they are raising it, what is your plan for briefing it?
That's a better question.
MR. LUTHER: I would say I'm going to need
at least ten days.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
<
THE COURT: All right.
LUTHER: So that probably be
Monday a week.
THE COURT: Great. And so in the next
15 minutes, in addition to sharing the exhibits that you
intend to use, the discussion of time allocation, I want
for you discuss a briefing schedule"so that we
can in an orderly way do any and all briefing you're
going to want to do. What I don't want to do is do some
precipitous shooting from the hip based on less than
full briefing only to have motions to reconsider led
with full briefing. That's a fairly illogical way for
us to approach this very important issue. So I want in
the next 15 minutes for you to discuss how you wish to
do this briefing and whether you would like to do the
briefing before you have an argument on it. I certainly
like reading every scrap of law I can read before I hear
lawyers' arguments. My questions are so much better
when I do that than when I'm just given a matter,
you know, and showing up for court and given a matter
and I'm sort of doing it from the hip. I can do that.
That's sort of my life often. But itdoesn't have to
be. And given that you want to do briefing after
today's hearing, you might consider resetting the motion
to dismiss and only doing those things that you must do
{}
n
n

(J
{)
,J
J
J
.,
)
,
: 3
J
J
I
)
)
.4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
23
in order to have these parties' lives as sane as they
can be in the next couple of weeks. I would like, now
that you've gott'en me this far down the road, for you to
come back hereto this court and deal with this
interesting issue,because I'm already starting to
grapple with it. So that's something to consider in
your next 15 minutes. Anything else I need to have to
read?
MS. COCHRAN: These are the findings of
fact. It's not a certified copy.. I just got it.
.THE COURT: Okay. And do you have an
extra copy?
MS. COCHRAN: I do. I'm going to make
copies. I found an extra copy.
THE COURT: Okay. Great. So this is
mine. Great.
MS. COCHRAN: . And then this is the notice
of appeal that I got also.
THE COURT: Could you hear what she just
handed me. It's the findings of fact I didn't think
you could -- and the notice of appeal apparently in the
Dallas County case that I was alluding to earlier.
MR. LUTHER: I heard that.
THE COURT: Okay.
MR. LUTHER: I do not have copies, but
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
.'.-
24 ~
she'll give them to me .
t - ~
\
THE COURT: She says she's got one for you
.'
now and she'll make extra -- she has one other copy and
she's going to make copies now for you to have. Or ' .
~ . ~
~ : . "
maybe she'll just give you hers since she's already read
: ~ - . ~
it, and that way in'the next few minutes you can look at
it. That assumes you're even going to argue this now.
I mean, you're all kind of scurrying around to try to
i '.'
incorporate this recent case, briefing you'haven't had a
chance to do on full faith and credit.
If I were you, I think I would back up,
fully brief, reload and come back up here having
everyone fully prepared, including the judge, to have a
good argument -- a good informed argument where everyone
is fully prepared to argue all of the issues, including
the U.S. Constitutional issues
MS. COCHRAN: Yes, Your Honor.
THE COURT: -- which for me is probably
the most interesting aspect of all in the entire case.
All righty. I'll see you back in 15 minutes.
(Recess taken.)
THE COURT: All right, Counsel. You've
had an opportunity to consult about scheduling. And
given the fact that you just received, I guess just
during the night or last night or maybe this morning,
5
10
15
20
25
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
Judge Callahan's fin6ings of fact and conclusions of law
In the Matter of the Marr.iage of and H.B. in Dallas
County, a case in which that judge was apparently
grappling with the very issues before this court and is
the only case that any of us seem to know about in Texas
confronting these issues, you want an opportunity to
rebrief, and this is the schedule you have agreed to.
The respondent will file whatever brief you .wish to file
no later than ten days from today. The petitioner will
file whatever brief she wishes to file no later than
20 days from today. The respondent will then have an
which can be waived, but an opportunity to
file yet another brief, which amounts to a rejoinder
suppose, no later than 25 days from today. And then the
petitioner will file the very last brief by way of
rejoinder no later than 30 days from today on the motion
to dismiss and the other motions or special exceptions
which raise those same issues, that is, the
jurisdiction -- let's just call that the
question. Is everyone agreed on that schedule?
MR. LUTHER: Yes, sir.
MS. COCHRAN: Yes, Your Honor.
THE COURT: All right. Now, you
1
11 need
to schedule a time sometime after that last brief
because then that is my first opportunity to have had
I
1
2
3
4
5
6
7
8
9
10
11
12
.13
14
15
16
17
18
19
20
21
22
23
24
25
26
everything you have filed and then do my work to
evaluate all that you have done and more, and so I need
a window and the dismissal hearing too
quickly after your last brief. I typically on admin
-appeals, especially complicated adrnin appeals, have the
last brief led 30 days before I do anything because
I'm in trial week in week out. I did two trials last
week and smaller hearings after that. And so I need an
opportunity at night and on the weekends to do this
briefing. And I typically require 30 days so that,
during my interstices of time, I can read the briefing
and do my own briefing.
Is that agreeable or do you need a -- is
there a reason we need a quicker resolution of this?
This matter has been pending for some time. It was
filed -- when was it led?
MR. LUTHER: December
MS. COCHRAN: 3rd.
MR. LUTHER: December 3rd. There was a
motion to dismiss set in
THE COURT: No. When was the divorce
filed? When was the petition for divorce filed?
MS. COCHRAN: It was December the 3rd.
THE COURT: December 3rd. So it really
hasn't been pending that long.


Ie
I:c:

If '
I' .
i .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
27
"
. i
MR. LUTHER: I beg to disagree, Your
Honor. This is the second setting on motion for
temporary orders.
THE COURT: No, Mr. Luther. All I'm
asking is when was the divorce filed, when was the
petition filed.
MR. LUTHER: I'm sorry.
THE COURT: I was trying to get a sense
for how long has this case been pending. It has not
been pending very long. That's all.
MR. LUTHER: Yes, s i r ~
THE COURT: All right. When do you feel
that you must have this hearing? Will 30 days be
sufficient? Or is there some reason that ~ need to
have it faster than that?
MR. LUTHER: We don't need to have it
faster than that unless I find out something new that
the Court refuses to do and I need to discuss with the
Court at the end of this hearing. In other words, if
you're refraining for some reason to implement some
remedy that we deem to be an emergency, I would like to
reserve the right to rediscuss with you how long it
might take for you to rule in light of whatever that
emergency is. But assuming that you're able to take
care of those emergencies at the end of the day of this
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
28
hearing--
THE COURT: You're going to want me to
issue some orders in the divorce case and take care of
some matters for your client in the divorce case, and if
I'm going to fail to do that, then you want the
jurisdictional hearing sooner?
MR. LUTHER: That's not what I said.
THE COURT: Okay. I'm not understanding.
MR. LUTHER: I'm going to want you to
issue temporary orders in the SAPCR that you have
jurisdiction over that would overlap into the divorce.
THE COURT: I see.
MR. LUTHER: And so understanding that, if
~ ..:"
for some reason you feel prevented from entering those
orders, it might affect my willingness to give you
30 days. But right now I think you've got the power of
doing it, and either you're going to do it or you're
not, and I don't think there's anything wrong with
30 days.
THE COURT: Okay. Great. And until
sometime in the future you articulate why you need it
done on a shorter time fuse, something I'm certainly
willing to consider Ido emergency things all the
time -- you'll have to articulate why it is an emergency
as opposed to doing this in a more orderly and
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
29
I
thoughtful manner given the significance of the
issues --
MR. LUTHER: Yes, sir.
. THE COURT: and how this can affect
people throughout the state.
MR. LUTHER: Yes, sir.
THE COURT: All right. Well, that's our
schedule_ And then you'll have that on the Court's
calendar and on the court administrator's catendar. And
will hold you responsible for doing that. Mr. Andrews
is the COO of the Court. He'll get it on the Court's
calendar. But that's, of course, not on the docket.
That's simply on my calendar to know you're going to be
here on that day_ You need to get it on the court
administrator's calendar, which, as we discussed
earlier, some of these things were and some of them
weren't today.
All right. Now, how long do you want for
your evidentiary record on the motion to dismiss? Let's
call this the jurisdictional issues to put on whatever
record you want. Mr. Luther?
MR. LUTHER: One day.
THE COURT: You want a day. Now, for the
court reporter to not get carpal tunnel, you know that
the court reporter can only do about five and a half
'fl
30
$1
";.;1

., )
1 hours of actual hard time on the machine a day.
2 MR. LUTHER: Yes, sir.
3 THE COURT: All That means that
4 each side would have on your one-day announcement --
5 what is that? Two hours and 15 minutes -- I'm sorry.
6 Two hours and 45 minutes.
MR. LUTHER: Then -- I thought you were 7
8 asking me. We've agreed
9 THE COURT: No, I mean the total time
10 on--
11 MR. LUTHER: Total time would be two days.
12 THE COURT: Two days.
13 MR. LUTHER: sir.
14 THE COURT: So that's longer than the
15 announcement that went to the court administrator this
16 morning, but okay. It was announced for one and a half
17 cases I think yesterday morning. So it's two days,
18 which is five and one-half hours per side.
19 MR. LUTHER: Yes, sir.
20 THE COURT: Is that right?
21 MR. LUTHER: Yes, sir.
22 THE COURT: Is that what you need.
23 MS. COCHRAN: I agree, yes.
,
24 THE COURT: All right. Well, is that
25 everything we're going to do? That's -- I was just
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
31
asking on evidence on the jurisdictional issues But
you must surely be lumping in some other matters,
including the SAPCR.
MR. LUTHER: Yes, sir.
THE COURT: Okay.
MR. LUTHER: That's everything that we
would need to introduce evidence about for the Court to
consider, be it jurisdictiorial or otherwise. That's my
announcement .
THE COURT: Great. So you're just going
to <lump them all together, put on all the evidence on
all the requests for relief that each party has,
l .
including the jurisdictional request for dismissal
MR. LUTHER: Yes, sir.
THE COURT: -- put it all before me over
the next two days and then have briefing over the next
30 days and then have a hearing roughly 60 days from
today?
MR. LUTHER: Yes, sir.
THE COURT: On the jurisdictional matters
only.
MR. LUTHER: Yes, sir.
THE COURT: In the interim you hope, both
hope, I will be ruling on these other motions,
especially the SAPCR, which everyone agrees I have
n
32 11
Ir
r ~
1 jurisdiction to do.
2 MR. LUTHER: Yes, sir.
r
c
3 THE COURT: All right.
';
4 MS. ,COCHRAN': Yes, sir.
,',
'.!
5 THE COURT: I'm going to let you use the
"
6 time any way you wish. Understand that if you use the
7 time for argument, messing with exhibits, whatever, that
8 time is lost. And at the end of your five hours -- f i v e ~
9 and one-half hours, the time will expire.
10 MR. LUTHER: Yes, sir.
11 THE COURT: So if you save the most
12 critical witness -- and I've seen this happen -- for the
13 end, you may be sorry. I don't -- I,sound like I'm
14 scolding you, but I've seen really good lawyers do that,
15 and I'm only surprised when ithappens. So I try to
16 warn you at the outset, please front end load -- triage
17 this. Please front end load the most significant
18 matters, okay? So that if you have to cast aside a
19 witness because somebody's taking longer to testify than
20 you anticipated, you are not casting aside a critical
21 witness" okay? That's my suggestion.
,
22 Also, I expect maximum communication
23 between you at every opportunity on all logistical
24 matters
--
you've already seen that this morning -- so
25 we don't waste time quibbling over things that there's
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
\,' ,',' .33
,
'"
, /
"
:
really not disagreement over and that you agree to
the greatest' extent possible on taking witnesses out of
o'rder in order to accOmmodate schedules of teachers,
social workers, people who really need to not have their
schedu],es. just obliterated by this trial., And I trust
you' regoing to do that.
With that, I'm going to let ,you start with
your five .and a half hours, and you may make whatever
opening statement you wish, Mr. Luther. Now, I'm
assumiQg that yoti go first. I know that you were going
first on the motion to dismiss. Ms. Cochran's nodding
yes, sO.I guess she'll let you go first and,she'll let
you close last. With that, the time is yours,
Mr. Luther.
MR. LUTHER: Thank you, Your Honor. On
behalf of Sabina Daly and her son Jayden, lim appearing
today to the Court to. consider what would certainly
be in Travis County a question of first' impression. But
unfqrtunately, I'm afraid that this is a case of first
impression where facts from at least an equitable
standpoint and at least as far as Jayden is concerned,
it's unfortunate that the novelty and importance of this
particular has been driven to the front and,
in fact, what we have here is a dispute between two
individuals who have been fighting nonstop for the last
2
62
1 Q. Did you ever agree tosplit theprofits.of
2 ' Realty World with Angelique?
3 A. Atone t,ime, yes.'
Q. And did you ever take any profit-sharing
5 distributions from Realty World?
6
4
A. I'm not. sure. What do you mean by
7
8 Q. Were any profitsdistribfited .
9 A. I believe so, yes.
10, Q. And aid you'authorize
11 THE COURT: .Let me know a good time to
12 take a break.
13 MS. COCHRAN: And maybe nOw.' I'm getting
14 kind of a scratchy throat. I think now is a good time.
15 THE COURT: Is this a good time?
16 MS. COCHRAN: Yes.
17 THE COURT: All right. We'll go ahead and
18 break now for about 20 minutes. I'll see you then.
19 (Recess taken.)
20 THE COURT: All right. We're back on the
21 record. You may resume your questioning.
22 MS. COCHRAN: Your Honor, I just want to
23 make you aware that we have a Rule 11 regarding the
24 passport provisions.
25 THE COURT: Oh, that's wonderful.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
63
MS. COCHRAN: We've agreed to --
THE COURT: If I stay .in my office for
about an hour, do you .think you might get a Rule 11 on
everything?
MS. COCHRAN: It's possible.
THE COURT: Really?
MS. COCHRAN: We're still talking about
the Alta Vista property, so if we could have a little
bit more time.
THE COURT: I'm amenable to that if you
both want it.
MR. LUTHER: I would I think ~ need to
get our evidence on and we'll talk at lunch. '
THE COURT: All right. Well, if you need
a longer lunch, just let me know.
MR. LUTHER: Yes, sir.
MS. COCHRAN: Okay.
THE COURT: Let's go ahead and finish our
record. You might tip that down so it's -- there you
go. Keep it in front of you.
MS ..COCHRAN: We also need to release
Steven Daly.
MR. LUTHER: Your Honor, I think we need
to clarify specifically what our agreement was with
respect to the Rule 11 agreement. They've withdrawn
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

64
their request for relief, and both parties are relying
on the existing order to protect Jayden and the standing /
(-
;
order as the Court recommended. And I just wanted to
.
make certain that that's what our understanding was.
THE COURT: You're withdrawing your
requested relief on any interim orders on the motion to
modify the SAPCR?
MS. COCHRAN: Well, to the extent that
we've agreed on the co-parenting the
passport agreeing to have the standing order
continue to be in place regarding that.
THE COURT: Yes. What other relief are
you asking for, if any, on an interim basis on the
motion to modify the SAPCR?
MS. COCHRAN: None at this point.
THE COURT: Okay. So that's now off the
table?
MR. LUTHER: Yes, sir.
MS. COCHRAN: Yes.
THE COURT: That's good. That's good. So
the only issues I have before me are issues pertaining
to the divorce?
MS. COCHRAN: Yes, the Alta Vista
property.
THE COURT: Well, the Alta Vista
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
65
.property -- yeah. And that's -- the only reason I would
be hearing anything about the Alta Vista property is
. pursuant to the divorce action, correct?
MS. COCHRAN: Yes.
THE COURT: Mr. Luther, why is that wrong?
MR. LUTHER: Because I believe as a result
of the modification filing and the ultimate relief that
may be requested along the way that has not -- they have
not nonsui ted. their SAPCR. So
THE COURT: That's okay, but the Alta
Vista property is not the subject of the SAPCR, correct?
MR. LUTHER: Yes, sir. It is, though,
however subject to relief that pertains to the SAPCR
which has to do with requested attorneys' fees and the
like. So I'm not trying to be difficult about that.
THE COURT: Yes. But the order that you
are requesting me to sign pertaining to the Alta Vista
property only comes to this Court by virtue of the
divorce action, correct?
MR. LUTHER: I don't believe that's the
case.
THE COURT: Then tell me in what lawsuit
does the request or relief as to the Alta Vista
property come? It cannot possibly be the subject of the
SAPCR, can it?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
66
MR. LUTHER: It is the subject of the
divorce -- the i n t r i ~ order and then the joined SAPCR,
all of which is the lawsuit. And I'm not trying to be
difficult.
THE COURT: How does a court have
jurisdiction to enter orders about real property in a
SAPCR action? I can enter orders ordering child
. support, but I cannot enter orders thathave nothing to
do with child support ordering people to buy, sell,
dispose of liens on real property in a SAPCR action, can
I?
MR. LUTHER: That's not true.
THE COORT: Okay. Tell me.
MR. LUTHER: You can order that property
be freed up as a result of actions by the other party so
that itmight be used to pay the attorneys' fees that
you order to be paid, all right?
THE COURT: Ifm probably not going to do
that. I'm not going to make this the subject of the
SAPCR. It seems to me the Alta Vista property is either
part of the divorce or it's not. I can order child
support. But you'll have to show me the section in the
code that allows me to order the selling, conveyance of
real property in a SAPCR action. I can take into
consideration someone's ownership in property when it
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
67
I
comes to the resources available to them to pay child
support when I set child support. But you'll have to
show me where my authority derives from the code to
issue an order ordering her to release some lien on a
SAPCR action. That seems to me to be the subject of the
divorce action.
MR. LUTHER: Your Honor --
THE COURT: So you'll need to brief that
before I sign any SAPCR order. It will only be an order
would sign in the divorce action.
MR. LUTHER: Your Honor, I guess what I'm
referring to is the fact that she made an agreement that
this Court has the power to enforce in an ongoing
action, and that --
THE COURT: Yes, on pecember 16th, right?
MR. LUTHER: Yes, sir.
THE COURT: And that was after the divorce
was filed.
MR. LUTHER: Yes.
THE COURT: So you'll have to -- once
again, I am construing that order as an order in the
divorce action. You will have to explain to me -- I
won't say it again. You understand -- I do not
understand how I through the code, nor do I think
opposing counsel understands how I through the code, can
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
68
1(,
i:r:
It;
"':-
;,
'I
,- ,
.., .
. ~ :'
iSsue an order ordering people t6 convey interests in
real property in a SAPCR action. If I can, show me.
But until you show me, I will not issue any order in the
SAPCR action concerning real property. Can I consider
it in terms of people's assets available for the
purposes of child support? You betcha. Did that last
week. A guy had lots of property and hadn't worked in
;years and he's paying maximum chi ld support.
MR. LUTHER: May I ask a 'question so that
I make --
THE COURT: Sure.
MR. LUTHER: I'm not trying to be
difficult because I'm trying to really understand.
THE COURT: That's okay.
MR. LUTHER: As part of this Court's
jurisdiction to maintain and run its calendar and
enforce its rules caused by the filing of anything that
is yet to be dismissed, agreements can be made along the
way that do not require -- because I will tell you that
our argument is not that this Court does not have
jurisdiction. Our argument is that the statute declares
itvoid. So you have to have jurisdiction to declare
something void.
THE COURT: Okay.
MR. LUTHER: So you have the power to hear
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
69
I
the issue of whether something is going to be
considered, so that's not really a jurisdictional
argument.
THE COURT: Maybe. But if I have no
jurisdiction in the divorce action and the only reason
have power over real property is in the divorce action,
then any orders the Court issues with respect to the
divorce action it seems to me are void orders. If the
Court never had jurisdiction -- you're arguing the Court
has no jurisdiction. And now we're getting into your
motion to dismiss, and we probably shouldn't digress too
long. But just to give you a little advance warning
about the problem that your client --I don't mean this,
you know, asa judgment about her as a person -- that
your client has created along with her counterpart
legally, you just have to confront that.
MR. LUTHER: Well--
THE COURT: You're creating a situation --
they created a situation which I think they ought to
be able to do personally but they created a situation
in which a marriage was formed. Property could be
construed as part of or not -- it could be construed as
separate; it could be. construed as community. But
that's the question in the divorce action. Now you've
got both simultaneous SAPCR action and divorce action
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
70
pending. You argue that I no jurisdiction -- this
Court has no jurisdiction to enter any orders, including
a divorce decree -- including, but not limited to, a
divorce decree by virtue of this lack of jurisdiction.
MR. LUTHER: No, sir, that's not what we
argue.
THE COURT: Okay.
MR. LUTHER: That's not what we argued
all.
THE COURT: Well, then if it's void, then
'.
it's not a motion to dismiss for want of jurisdiction,
and you need to go back and look at your motion -- and I ,;
will, too, but itseems to me you that it is
jurisdictional. And if it's not jurisdictional, then
it's something else. And I do believe you used the,J
word., I do believe you did.
MR. LUTHER: Well
THE COURT: If you say that the word
jurisdiction never appears in your motion to dismiss, I
apologize, I stand corrected, but I believe that you
did.
MR. LUTHER: And--
THE COURT: Are you telling me now you did
not?
MR. LUTHER: I did not say I did not use
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
71
the word jurisdiction.
THECOURT: So you did --
MR. LUTHER: But I will
THE COURT: You did use the word
jurisdiction and so you are arguing that the Court' has
no jurisdiction, correct?
R ~ LUTHER: No, sir, I'm not. We also
are arguing that we are asking you to declare the
marriage void.
THE COURT: You're veering away from my
question. I understand you're asking me to assert
jurisdiction, claim jurisdiction and declare it void,
which is something different from jurisdiction, but you
are also arguing as a threshold matter that the Court
has no jurisdiction, are you not? Or are you now -- you
can't waive jurisdiction, but are you now telling me,
no, Judge, I'm not making any jurisdictional argument;
you do have jurisdiction over this divorce matter; you
should simply declare that the marriage in Massachusetts
is void?
MR. LUTHER: No, that's not what I'm
saying.
THE COURT: Okay. What are you saying?
MR. LUTHER: I'm saying that as a result
of the statute passed by this legislature, this Court
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
72
has jurisdiction to declare that a marriage in
Massachusetts that is otherwise valid in Massachusetts
is void in the state of Texas, and that's different. We
are not saying they're not married in Massachusetts.
THE COURT: All right. Well, I'll go back
and look at your motion to dismiss, but itseems to me
that you structured this as a jurisdictional problem.
MR. LUTHER: Well, and to be honest --
THE COURT: So we'll have to go back and
think about all this. But one thing that this little
colloquy has made it is quite a legal mess,
and in part created by the states of Massachusetts and
Texas having, you know, clashing statutes --
MR. LUTHER: You have no argument with me
about that.
THE COURT: -- which can only be resolved
by analysis, none of which has been fully
briefed, all of which we find interesting. But in the
meantime, we have parties whose lives are held in
suspense because of this, because of these powers of
these states to do this and create this problem for
people. So here we are. But--
MR. LUTHER: And I appreciate your
clarification.
THE COURT: But I will not let any party
f.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
73
)
\
't
benefit from inconsistent positions. I just don't think
that's right. And you have to live with the position
that you take.
MR. LUTHER: Yes, sir.
THE COURT: And if you take the position
-that the Court can dispose of property, deal with
property. issues on December 16th or t?day and the only
authority for that.is the divorce, that will have to
wait for a decis ion when the Court decides whether the
Court can even entertain a divorce. If I can't
entertain a divorce, I don't know how I can issue
interlocutory orders in the divorce. And so I'm
probably, just to give you some advance warning of the
problem that you h v e ~ not going to do that, at least
not as to parents and grandparents who are part of this
relationship which mayor may not end up in a divorce.
You say it should never end up in a divorce because
there's no jurisdiction or because it's a void marriage,
which means I shouldn't be exercising any divorce
powers; I shouldn't be dealing with the marital estate
at all because there is no marriage or because -- or
because there's no jurisdiction. And until I decide the
jurisdictional question, I.'m not likely to issue any
orders in the divorce action.
So you see the problem you have for the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
74
purposes of considering this over the lunch hour. There
may be other suits that need to be filed. Slander of
title lawsuits come to mind. Because if it's not a
marriage and the Court is not exercising its powers in
the divorce action, then what do we have? We don't have
a suit for partition because there's no joint ownership,
but we may have from your standpoint a slander of title.
That lawsuit's not even pending.
We have, in summary, a legal mess. And we
have two people who have decided, decided, not to do
good accounting. Now, that's just ~ you knbw, Lord
knows there but for the grace of God -- you know, there
have been times when I didn't do good accounting either,
but that's created this mess. So we have an incredibly
complex legal problem. We have an incredibly complex
factual problem with, you know, poor accounting. And we
have a situation where we have two people who, if I've
ever seen it, have an incentive to try to resolve this.
And so -- since you've given me this
opportunity to digress, I am. I would consider over the
.lunch hour what to do about Alta Vista. I'm
contemplating -- and what you could agree to do, and I
would probably approve this, even though" you're still
taking the position -- well, let's just take a break for
a minute. Take a break.
3
100
..
1
2
3
.4
5
6
7
8
9
10
11
12
). 13
i4
15
16
17
18
19
20
21
22
23
24
25
,
pessible . And we'renet going to. know howinextricably
intertwined they are until we get to. the :end.
This is a request fer. interim fees to. allow my client,
based en her testimeny,to.be able to. defend herself
against a claim fer divorce er a claim to. medify the
SAPCR er beth. And that's it.
THE COURT: We're geing to. break new and
resume with yeu at 2:000'cleek to. give you maximum
. eppertuni ty to. reselvesome issues. .I said earlier,
there but fer the grace of Ged, yeu knew, all make
acceunting I've never no., I seen. I
have seen some commercialcases that were just co.lessal
messesef aC9ouriting. But so. far, I den't understand
yeur 1 den't understand hew you ran these
businesses. I d6n't understand hew yeu possibly did tax
returns. I den't understand hew a CPA ceuld sign a tax
return when there's no. decumentatien en leans. I'm
really curieus abeut all that .. And quite frankly, that
can take you into. seme other sticky wickets, such as
whether yeu have accurately cerrectly reperted to. the
IRS. I den't knew where.this is all headed. But it is,
as Mr. Luther aptly said, a sticky wicket. Arid it's
enly geing to. get stickier as yeu centinue dewn this
path, which yeu can cheese to. de, er yeu can find a way
to. extricate yeurself. I wish yeu geed luck with that,
.(
t
(
'.
{
I
1\
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
101
I
and I will see-you at 2:00 o'clock. That concludes our
record.
(Discussion off the record.)
THE COURT: Previously on the record
alluded to documents -- or an order signed by Judge
Rose. It was actually apparently signed by Judge Hurley
on December 16th, 2009. With that correction, that will
close the record.
(Lunch recess taken.)
AGREEMENT OF THE PARTIES
MR. LUTHER: Your Honor, we took time over
the lunch break, in light,of your recommendations and
considerations that you let us become aware of, and we
worked as lawyers with our clients and we were able, I
believe, to craft a settlement that is intended to
dispose of all issues pending in this case today. I am
planning on reading this agreement into the record. I'm
going to ask that both parties listen closely. I'm
going to ask that Ms. Cochran listen and attempt to make
certain that my rendition of this agreement is accurate
and we will straighten this out here. And the agreement
we're reading into the record is intended to be a final
enforceable agreement between the parties with the
Court's blessing and the Court entering judgment as it
deems appropriate today on this agreement as we submit
5
10
15
20
25
102
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
it to you.
To begin with, I would ask that you swear
in both parties.
THE COURT: Well, your client's already
been sworn.
MR. LUTHER: Yes, sir.
THE COURT: But let me have you please
raise your right hand. Please stand and raise your
right hand, Ms. Naylor.
(Angelique Naylor was sworn.)
THE COURT: State your full name for the
record, please.
MS. NAYLOR: Angelique Stephanie Naylor.
THE COURT: All right. You may be seated
now.
MR. LUTHER: Your Honor, this agreement is
intended to dispose of all economic issues and
liabilities as between the parties whether they were If
divorced or not. We recognize the status of the law in
the state of Texas is written one way. It is being
challenged in another. And we are attempting to make
our best efforts as attorneys to bring peace to these
parties who so much so deserve itboth for their child's
best interest, which we all know is necessary, and also
for each of their own interests so that they may
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
103
continue to co-parent and fOllow through with the
agreements that they've made both in good faith and in
the spiri t that lim sure our state wants us to consider
and endorse as' part of this judgment.
Sabina Daly and Angelique Naylor will
agree to release any and all -- each other from any and
all,lawsuits 6r otherwise other liabilities or 6ausesof
action that they may have ~ against one another
individually or as each corporate entity, be it AnTex,
Jones &, Company or Realty World, may have as against the
other party today, known or not, and in the past,
whether known or not, based on any fact that is known or
may have been known by any reason or unknown prior to
today.
Sabina Daly will work to close the sale of
the Alta Vista home, and Angelique Naylor will cooperate
to execute the documents necessary to facilitate that
closing. Sabina Daly will make available to Angelique
Naylor ,the documents that include the settlementHUD
statement and any other information necessary to clear
up confusion about terms and conditions of the closing
of the sale so that there is transparency and the
parties understand what it is they're being asked to do.
Sabina Daly will pay from the proceeds of
the sale of Alta Vista the sum of $25,000 which will be
104
1 made payable by way of some sort of check or other
2 appropriate instrument cutby the title company to
. 3 for the benefit of either Angelique Naylor or AnTex or
4 both, depending on what she deems appropriate to pay
5 those proceeds.
6 Ms. Daly will pay the lien to Lorraine,
7 will pay the payment due Kathi Niffenegger as described
8 in the evidence in this court. And the remainder will
9 be paid to Sharon Daly who it is represented will sign a
.10 .release of her lien upon payment of the remaining amount
11 in satisfa6tion of her lien, which could be up to
12 $100,000, but she will release the lien to allow the
13 sale to be accomplished.
14 All of those checks will be cut at closing
15 and delivered to the appropriate parties by the title.
16 . insurance company -- or excuse me, the closing agent,
17 which at the moment is Midtown Title Company. And the
18 reason I'm making this statement is because the title
19 company is being directed and it is going to be the
20 Court's approval for them to follow through with this
21 closing, and it is going to be your order that they be
22 allowed to do so.
23 The releases that the parties sign as
24 against each other for the cause of action that I
25 described are going to be global releases as that term
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
105
is generally understood.
THE COURT: Well, the order I sign is not
going to dispose of any lien. It's to ratify
the agreement between the parties here
MR. LUTHER: Yes, sir.
THE COURT: -- and Ms. Daly's mother.
MR. LUTHER: Yes, sir.
THE COURT: But every other lien is going
to be paid in full.
MR. LUTHER: Yes, sir.
THE COURT: Yeah.
MR. LUTHER: And I was backing up a little
bit because the releases that the parties are signing
are intended to be global releases as we understand that
term to mean, and the Court understands what that means.
Further, those releases are intended to include that
either party cannot file a lawsuit against any family
member that might arise from the same claims that they
are releasing. So the releases are intended to include
any family member mutually as to each side.
Let me see. We have discussed and
disclosed and agreed that with respect to an investment
known as Avenel, Sabina Daly will contact
THE COURT: Why don't you spell that for
the record.
5
10
15
20
25
106
1 MR. LUTHER: It's A-v-e-n-e-l. It is a
2 condominium project that is currently on 38th and
3" Guadalupe, a series of condominium projects. There is
4 an interest owned.in Avenel that is an undivided
interest in an.LLC by Sabina Daly. We're not exactly
6 clear what the terms of any transfer might be, but
7 Sabina Daly is agre.eing to transfer her interest. And
8 if she can't transfer her interest, then transfer any
9 profit or proceeds that she ever recovers as a result of
any ownership of Avenel to Wanda Gail Naylor and
11 Christine Russo in proportion to their investments that
12 .were made originally in to purchase that interest in
13 Avenel. So the theory there is that we would look at
14 Wanda Gail Naylor's investment, we would look ~
Christine Rtisso's investment, and their right to receive
16 the proceeds that Sabina Daly might have otherwise
17 received would be transferred to them in proportion to
18 their investment interest.
19 THE COURT: So all of Ms. Naylor's
interests would be transferred to them --
21 MR. LUTHER: Yes.
22 THE COURT: -- in that proportion?
23 MR. LUTHER: Yes, sir. Additionally, it
24.is understood that Sabina Daly will cooperate to execute
a refinance that is currently pending on the Avenel
5
10
15
20
25
107
1
2
3
4
6
7
8
9
11
12
13
14
lq
17
18
19
21
22
23
24
property in an effort to carry the investment forward
and protect it, but it is understood that Sabina Daly is
under no obligation to invest any additional monies or
have any out-of-pocket expense.in the process of
shepherding that investment. She further agrees to
shepherd that investment and to facilitate the transfer
of that interest in any way possible to satisfy the
spirit and the letter of this agreement. It remains to
be seen exactly what form that would take, but she
that she's to use all of her best
commercially reasonable efforts to transfer that
property and her interest to Wanda Gail Naylor and
Christine Russo.
Angelique Naylor agrees to release the
lis pendens that she currently has pending against any
properties that would otherwise be covered by the
releases that we're talking about, including the
lis pendens for Nolan and Belmont. Ms. Daly will agree
to explain to Miguel that she did not put a lien on the
property, but instead put a lis pendens, and would
discuss with Miguel that there is now peace between the
parties and that the property is going to be made
available for him to consummate that transaction and
clarify any confusion he may have about the
circumstances involving the placement of the lis pendens
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
108
on that property.
There's a property in the name of Sabina
{"
Daly that we've called Fulton property. There's
currently a contract to sell Fulton. And as the
evidence revealed to the Court today, I believe that if
that contract is not consummated, then that property
will be headed for foreclosure. It is the agreement of
Sabina Daly that she will split any net seller's
proceeds SO /50 with Angelique Naylor, and Angelique
Naylor will cooperate in any manner necessary to
facilitate the consummation of that real estate sales
contract.
It is estimated that there will be a net
sales proceed of approximately $20,000 and that that
'would be split $10;000 to Angelique Naylor and $10,000
to Sabina Daly. We are representing to the Court that
that is Sabina Daly's best estimate of the amount of
money that is available. We are not making any
guarantee that that amount of money exactly will be
available as a result of the sale. The agreement is to
split net proceeds 50/50.
All right. Additionally, apparently there
is $8,000 that is may need to be paid to get Fulton
current so that then it can be sold and there be net
proceeds of $20,000. If Ms. Daly is required to borrow
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
109
$8,000 to bring the property current to close, then she
will be able to recover that $8,000 that she I s intending
to borrow.
Her preference is going to be she will
make every effort to contact the mortgage company and
ask them to please de r any foreclosure and pay that
deficiency prior to closing out of the proceeds of the
sale of the Fulton property. All that having been said,
it is still her estimate that the net sales proceeds
will be $20,000 and that the property would. be split
50/50.
Let me s ~ here. The parties agree that
this is a full and complete settlement and is intended
to be a full and complete settlement of all property,
economic and otherwise business issues that exist
between these parties by way of being business partners
or it is intended to be a just and right division of any
marital estate that might exist under the laws of the
state of Texas or any other jurisdiction. The parties
agree that the laws of the state of Texas will govern
the division of the property, and this is intended to be
a just and right division of the property as of today.
The parties further agree that if it is
legal to do so and is intended to be, that they are
partitioning all property that is currently in their
5
10
15
20
25
1
J."
2
3
4
6
7
8
9
11
12
13
14_
16
17
18
19
21
22
23
24
110
name such that each one owns their sole and separate
property that is either in their name title or in their
sole and separate possession. And it is the intention
for each one of them to invoke the constitution of the
state of Texas to secure by agreement a partition of
their property effective today on into.the future for
any after-acquired property in the event any divorce
might not be legal in the state of Texas.
This is intended to be a substitute for or
itis intended to be a valid and subsisting divorce of
these parties, and it is requested that you enter
judgment today on this agreement and that you -- to the
extent that you have and you believe you have the power
to do so, that you grant a divorce today between these
parties on the terms that we have read into the record.
And I would then ask; Ms. Cochran, do you
believe that I've made an accurate recitation of the
oh, in addition, they will -.,- Angelique Naylor will
nonsuit the suit affecting the parent/child relationship
without prejudice to refiling in the future, and we will
agree to that nonsuit and that should --
THE COURT: I don't think you can ever
prejudice the right to file a motion to modify in the
future until Jayden
R ~ LUTHER: Right.
- ,
J
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
111
THE COURT: -- you know, until Jayden is
18 years old, but
MR. LUTHER: Well, we're agreeing to a
nonsuit today, and anything that might otherwise have
been covered today is not prejudice to deal with it.
THE COURT: So there will be no pending _
cause of action.
MR. LUTHER: Yes, sir.
THE -COURT: I understand.
MR. LUTHER: All right. Ms. Cochran, have
I accurately read -into the record our agreement?
MS. COCHRAN: You have, everythling except
for the counseling, which was covered by a Rule ll.
MR. LUTHER: Okay. Agreements that were
made in this case, which include the counseling, six
sessions as read into the record, will be made a part of
this agreement and a part of the order of this Court.
Other than that, is that a complete
recitation?
MS. COCHRAN: Yes, it is.
MR. LUTHER: Your Honor, I would like to
ask my client, is this her agreement today as I read it
into the record, and do you agree to be bound by this
agreement?
MS. DALY: Yes, I do.
112
..'
1
2
3
4
5
6
7
8
9
10
.11
12
'13
14
15
16
17
18
19
20
21
22
23
24
25
MR. LUTHER: All right. Do you have full
;'
power to enter into this,agreement?
MS. DALY: Yes.
MR. LUTHER: And is this what you are
asking the Court to do?
,MS. DALY: Yes.
MR. LUTHER: I pass the witness.
MS. COCHRAN: Ms. Naylor, you heard the
agreement that Mr. Luther expressed. Are you in
agreement with the agreement?
MS. NAYLOR: Yes.
MS. COCHRAN: And you agree to abide by
the agreement?
MS. NAYLOR: Yes.
MS. COCHRAN: And you also ask or request
this Court to enter this agreement?
MS. NAYLOR: Yes.
/
MS. COCHRAN: No further questions. .; .
MR. LUTHER: And,' Your Honorf before you
do that, I need to ask my client just a few questions
real quick.
THE COURT: Okay.
MR. LUTHER: Have you been a resident of
the state of Texas for at least
THE COURT: I was going to do that. I was
5
10
15
20
25
113
1
2
3
4
6
7
8
9
11
12
13
14
16
.17
18
19
21
22
23
24
going to ask the peti tionerthose questions, but that's
fine. You can ask the respondent.
MR. LUTHER: Yes, sir. Since we took the
position to void it, I think I'm going to ask her the
questions.
THE COURT: I think that's poetically
appropriate.
MR. LUTHER: Have you been a citizen and a
resident of the state of Texas for at least six months
and Travis County for at least six months prior to
Angelique. Naylor filing this lawsuit -- or has Angelique
been a resident of the state of Texas?
MS. DALY: Yes.
MR. LUTHER: And a resident of Travis
County?
MS. DALY: Yes.
MR. LUTHER: And has this case been
pending well over 60 days?
MS. DALY: Yes.
MR. LUTHER: Do you believe that the
division of property as read into the record is a just
and right division of what might be your community
property and separate property?
MS. DALY: Yes.
MR. LUTHER: Are you asking this Court to
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
114
confirm your agreement including Alta Vista as your
separate property?
MS. DALY: Yes.
MR. LUTHER: And are you asking that the
Court grant you a divorce today?
MR. DALY: I am.
If
MR. LUTHER: Do you believe this is all in
Jayden's best interest?
MS. DALY: Absolutely.
MR. LUTHER: Thank you. Pass the witness.
THE COURT: Let me ask a couple follow-up
questions of your client. You separated as testified
and ceased to live together as spouses; is that correct?
MS. DALY: Yes.
THE COURT: Is there any possibility that
the two of you can reconcile?
MS. DALY: No, sir.
THE COURT: And has the marriage become
insupportable because of conflict and discord requiring t
the separation and preventing any possibility of
reconciliation?
THE WITNESS: Yes, ithas.
THE COURT: All right. I believe that
covers every other question. Am I right?
MR. LUTHER: Yes, sir. We would ask that
I'
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
115
; .
\
you rendera judgment today.
THE COURT: All right. Are you likewise
agreeing with the testimony you just heard from your
spouse?
MS. NAYLOR: Yes, Your lIonor.
THE COURT: And are you also asking me to
grant a divorce in this case?
MS. NAYLOR: Yes, Your Honor.
THE COURT: All right. The divorce is
granted pursuant to the agreement you have recited into
the record, and the division of your estate as set forth
by your attorneys is approved as a just and right
division of your estate.
Is there anything else you need on the
record?
MR. LUTHER: We will prepare the order and
.submit it to Ms. Cochran, and we can get it to you as
soon as we can in normal course. Thank you.
THE COURT: Thank you both, Counsel, for
your hard work on this challenging case. And I do wish
you both good luck.
MR. LUTHER: Thank you.
THE COURT: And I hope Jayden does well.
I'm sure he will. I can tell he's much loved, and
that's a wonderful thing. Every child should be so
,. .r.
116 j
1
2
3
4
5
6
7
8
9
10
11
12
13
, .
14
15
16
17
18
19
20
21
22
23
24
25
loved.
MR. LUTHER: Thank you for your time,
Your Honor.
, MS. COCHRAN: Thank you, Your Honor.
(END OF PROCEEDINGS)
;f
<'.
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
23
state of Texas. That's it.
THE COURT: Ms. Cochran, do you have
anything to add to that?
MS. COCHRAN: I'd like to reserve my time
until after the Attorney General speaks.
THE COURT: All right. Do you mind them
reserving so much of their 20 minutes until after yours?
It makes sense to me. Ordinarily I make the moving
party spend the bulk of their time to open. In this
context, in this hearing, it makes sense to me to allow
them to reserve that much of their 20 minutes. Do you
agree?
MR. MORALES: Here's my concern. My
understanding is that when a motion to strike is
filed--
THE COURT: Why don't we do this, because
I can tell what you're thinking. I can see the wheels
turning. You would like to reserve some time to respond
to what they say after they speak.
MR. MORALES: I believe so. I think
technically when a motion to strike is filed, the movant
is the intervenor.
THE COURT: O ~ a y And I think you're
right. But here today we have a motion to enter, which
was actually the only thing set, but we're taking up the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
24
intervention"as we have explained I guess ad nauseam by
now, and we're doing that by agreement. Why don't I do
this, Mr. Morales: Why don't I let you save as much of
your time as you wish in rebuttal. I assume itwill be
f
' ..
less than ten minutes. You'll use the bulk of your
time to convince me of your position. Then I'll let
them speak, and I'll let you use the remainder of your
time in.rebuttal. Fair enough?
.MR. MORALES: Yes, sir.
THE Great. I'll let you know when
you've crossed the ten-minute threshold so that you'll
know to start saving time.
MR. MORALES: .Thank you, Your Honor .
THE COURT: My pleasure.
MR. MORALES: Your Honor, under Rule 60,
once a in intervention is filed, that part of
the--
THE COURT: And unless you need that, I
would prefer that you come forward since lawyers have to
stand anyway, only because it's hard for me to hear.
But you don't have to get too -- just get next to
counsel or in between counsel will be fine. Is that
okay in between the
--
MR. LUTHER: I can actually --
THE COURT: That's fine. You can do it at
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
25
the lectern. I can tell you're comfortable there. Just
really project for me. We don't have a microphone
there. And that's fine, but just really project.
MR. MORALES: Judge, to the extent that my
words need to reach you, I want to be closer to you.
THE COURT: And there's also a music stand
back there. You can get a little closer and still use
that for your notes if you would like.
MR. MORALES: This is going to be fine.
THE COURT: Will that be okay? That's
what we use for jury arguments all the time. Are you
okay there?
MR. MORALES: Yes, Your Honor.
THE COURT: Great. Thank you. I can hear
him wi thout the mike from here.
MR. MORALES: Rule 60, once a petition in
intervention is filed, that intervenor is a party for
all purposes subject to a motion to strike. The Court
has raised several issues that are contained in the
briefing. I understand that the Court has read those,
so I do not want to burn too much of my time on those
matters.
The reason I thought it might be helpful
for me to come down and argue this hearing is because of
my position. In my position as deputy attorney general,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
I see requests for the State to intervene --
constitutional challengescome across my desk every day.
The primary way, as the Court knows, since a lot of
these constitutional challenges happened in your court,
is the State has sued directly. The parties are not
ambiguous about what they're trying to do. They are
saying, for example, the Family Code is unconstitutional
pursuant to either the Texas Constitution or the u.S.
Constitution. That happens every day.
THE COURT: A perfect example is. the case
you cited, Motor Vehicle Board vs. El Paso Independen{
Automobile Dealers Association.
MR. MORALES: Yes.
THE COURT: The State declined to
intervene because they didn't think itnecessary at the
time and then later chose to.
MR. MORALES: Well, that's true. And
that's the second category, which is when a dec act or a
similar claim between private parties -- well, in this
case with the State, yes, that was one where the
district attorney or the county attorney took the
defense and was going to defend the statute, so there
was no need for the attorney general to intervene. As
in all those cases, we monitor those. And to the extent
that circumstances change, we can intervene as long as
1:
if
/
I i
5
10
15
20
25
27
1
2
3
4
6
7
8
9
11
12
13
-.",
.14
16
17
18
19
21
22
23
24
it's before judgment.
Now, often we also -- if the parties are
going forward, there is a true adversarial proceeding
going on. That will go up on appeal and then we can
come in as amicus to present the State's views if
necessary.
The third part
THE COURT: Wouldn't that also mean that
you could go ahead and file a notice of appeal, make an
appearance -- enter your appearance and file a notice of
appeal on this under the theory of either virtual
representation or exactly the basis you just said? You
wish to merely raise jurisdictional challenges.
as we all know, can be raised at any time,
correct?
MR. MORALES: It truly can.
THE before the Court of
Appeals. For example, it could be raised for the first
time on appeal.
everyone,
judgment,
purpose,
MR. MORALES: It can.
THE COURT: And so you could simply notify
the State intends to appeal your agreed
we hereby make our appearance for that
we hereby take you up on appeal, we don't wish
to delay this anymore, but we do need an appellate
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
28
decision about the propriety of the Court's exercise of
jurisdiction.
MR. MORALES: Well, there is no doubt
about that. But on the issue of intervention
THE COURT: So why do you not choose to do
that for the sake of efficiency?
MR. MORALES: Because I believe it's
incumbentupon my office, as well as all of us as
officers of the court and lawyers, to present to the
Court that if jurisdictioncan be resolved at the
district level, it's better than taking itup on appeal.
I take I spoke to Jennifer yesterday. T didn't get a
chance to speak to Bob, but I believe that
THE COURT: We -- and I know you're a
very -- you make very proper arguments, but in our local
rules we always go by last names, although I'm very glad
ydu're on a first-name basis.
MR. MORALES: I was -- and I thank the
Court for that. I did speak to Ms. Cochran, and I
didn't get to speak to Mr. Luther. But one of the
things in reading through all the pleadings, as you did,
since I only entered this case last week, and in reading
all of this, itreally did impress on me that this
family is that wants for this relationship to be
dissolved wants to move on and have finality. If this
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
29
Court enters a divorce decree today, that is the last
thing that they're going to get. The Court does not
have jurisdiction to enter a divorce decree in this
case. The parties do not have standing. And I do not
want to argue the plea to the jurisdiction because the
Court was very clear about that. But the point the
reason that I bring it up in the context of the
intervention, Mr. Luther very properly, from the very
moment that he hit this courtroom, filed a motion to
dismiss this union, this marriage, this Massachusetts
marriage, as void under the Texas Family Code. That is
still his live pleading in this case. There is no
amendment to his answer and his motion.
THE COURT: But, of course, we all know
you can try cases by agreement. You can try cases by
consent even though -- regardless of what the pleadings
are as long as someone do'esn' t raise that issue, someone
on the other side doesn't raise that issue.
MR. MORALES: Sure.
THE COURT: But in any event, at the time
it was granted, at the time they put on their record to
obtain the divorce, and to this day, it's agreed, and
there's no impediment to the Court granting that because
of the pleadings. You agree with that?
MR. MORALES: I think there is an
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
30
impediment. I think the pleadings -- that the pleadings
present a jurisdictional defect on their face.
THE COURT: Interesting. Okay.
MR. MORALES: The parties do not
THE COURT: I did not see that briefed. I.
didn't see that the absence of a pleading requesting a
divorce prevents the Court from granting a divorce.
You're not saying that, are you?
MR. MORALES: I'm saying the petitioner
does not have standing to seek suit for a petition for
divorce in Texas.
THE COURT: Well, but the respondent had a
counter-petition for divorce.
MR. MORALES: The respondent had a
counter-petition that included a motion to dismiss the
petition of divorce as void under Texas
THE COURT: Oh, that's You're
saying Mr. Luther took that position.
MR. MORALES: Mr. Luther. I apologize if
I'm --I'm switching. The respondent did.
THE COURT: I apologize if I am. Let's
just go with MS. Cochran's position and Mr. Luther's
position. Ms. Cochran's position was a divorce not only
can but should be granted, and her pleadings supported
that, right, Ms. Cochran'S position?
5
10
15
20
25
31
1 MR . MORALES: That is her position.
. 2 THE COURT: Yes. And that was her
3 position from the outset Of the case.
4 MR. MORALES: Yes.
THE COURT: And from the outset of the
6 hearing I had back in February. Your point is
7 Mr. Luther's position was not that. He took the
8 opposite position, something the State was comfortable
9 with at the time.
MR. MORALES: Yes, and he --
11 THE COURT: But then in open court he
12 changed his position, embraced the position taken by the
13 opposing party, accepted. it, adopted it as his own on
14 behalf of his client, and then they entered into the
agreed di vorce.
16 MR. MORALES: Yes, very similar to the
17 El Paso case.
18 THE COURT: Okay. And other than your
19 position that the Court lacks jurisdiction, there was no
procedural impediment to them doing that, correct, as
21 long as they do it by agreement?
22 MR. MORALES: I don't know that theres a
23 procedural impediment other than the overall
24 jurisdictional impediment to the case being heard at
all.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
32
r - - - - - - - - - - ~ - - - - - _ _ : _ - - - - - - - - - - - - - - - - - - - - _ _ <
THE COURT: Fair enough. Fair enough.
And I understand that completely, which we all agree can
be heardfor. the first time on appeal should that be
something anyone really desires. But now to get back to
the intervention
MR. MORALES: Yes.
THE COURT: -- why is it timely, and why
should I even -- why should I even consider your
presence, the State's presence in this lawsuit, it
having occurred after I have already granted final
judgment?
MR. MORALES: The State's position is that
the State can intervene either pre or post judgment
,1
pursuant to El Paso.
THE COURT: Okay.
MR. MORALES: Now
THE COURT: In what you filed, you took
the position originally on Page 6 "The Court has not
entered a judgment in this case to date, nor could it,
because the parties have yet to propose specific terms
necessary to effectuate a final judgment." I read that
and thought, no, that's not right. I remembered that
the terms were specific. I remembered granting it. I
remembered that the Attorney General's Office was here.
Surely they heard the same thing I heard. So do you now
5
:.. . i
l.ll
r
i:
f. .
I:.,
t .
;.

i

',.

ii
;i.
i.
'\
."',
....
:, .
I
'.'
; .
.'.
",fr
.f
t
j

I
J
FE811 191)
,1-1027
t_USUlIt1U:lllK L - --- --py

iuprtutt QLnurt af lItnittb &taitll
OC'.OBEl'. 'l.'ElW, 1!l72
No. ...".......
:R!CE4l!J) JOBN Bhl(J!.B, eC al.,
.A.ppeilMzts,
-V.-
GERALD R. NELSON,
AppeUCB.
05" Al'l1'JIAL DOM TilE SUl'lIBKK COURT 011'
,JtJ1USDlCTIONAL STATEMENT
R. WZTa:l!:I1IlEE
Minnetlota Uivil Libertietl Union
2SZ3 t Hennepin Avenue
Minneapolis, Minnesota IiM13
LY1UI S. CAl!TNllB
1625 Park A.venue
Minneapolis, Minnesota 554Q4;
A'tortltyS for Appellants

29 of
\.
.',

,
,,.'
'to" .i ::
.' .,
INDEX
P.tG&
JmusPIO'llOl'tAL SU1'lUtll:N'r
Opinions Below ........___........_..........__..........._.......... 1
JUrisdiction _______........___................_.__....... 2
Sta.tutes Involved ......_......__.._......_ .._..____ 2
QuestionsPresented __....._ _ _ ~ _ ...._._........... S
8ta.tementofthe Case __...____._..__._._......._... 3
HowtheFederalQueSti01lsWereRaised ..._........... 6
TheQuestiollllAreSubstantial ........................._....... 6
1. Responde.nt's refusal to sanctIfy appellants'
marriage deprives appellants 01 'liberty and
property in violation ot the due pr0<Jt8s and
equalprotectionclauses.............___..__._.......__ 11
u. Appellee's reusa.l to lilgitilllate appellants'
.lIULrriage wnstitutesanunwarrantedinvasion
of the priv80Y in vlol8.tion of tlte Ninth and
FourteenthAmendments_......................._........... 18
CWCLl1SIOllT .... _............ _...._ ....___.................................... 19
.A,nmTnIX
Statutes Involved
Chapter 517, Minnesota. statutes...................... 1&
.Alternative Writ of Mandamus ..._........................... lOa
1-0
'n>
~
I\)
a
.....
w
ii
Order the Writ...... ......._..._.._ ..._. III
Amended Order, Findings and Conclusions __,_ 14& '.
Opinion ot the l{innesota Supreme Court, Hea.
Depln COlllity ..:.......,................_..:.:.._..........._....... J8e
. '.
.:TA.BLE"OJ!' Atmiolll'l'lES
Cases;
Bateav. Cityot ;LittleRook,:861 U.S. 516 (1900) ....._.. Lt
noddiev. Connooiicut. 4()1 U.S:.311 (1971) ......11. 13,1'
Cohen v. California, 403U.S. :&:i (1911) ........................ If
Griswoldv. 8131 U.S. 419 (1966) ........11.12, 13.
. , '. U.l8, 19
"
Jonesv.Hallihan, (Ct.Apps. Ky. 1971) ......_ 10
Lovingv.Virgirtia;388U.S. 1(1961) ................11.12,13,14.
.. . 15,16,18,19
McLaughlinv. 879 U.S. 184 (Ui64) ............18,16,18
Meyan.Nebraalm,.262 U.S. 535'(.1923) .............."".11,12.18
Mindel v. United, StatesI;livil'&rvice CommiSSion,
81211'. Su1>P. 48.5.(N.I):Cal. 19"70) ....._............___ 18
Reed v. Reed,92.S.-at.251,30D. e'd.2d225 (1971) -..13,16,
. ... I '. 17,18
RoysterGuano v. U.S.412 (1920) _" 17
I. i
Shapirov. U.s.61S (1969) ._.........._..... 16
Sheltonv. Tucker,3G{U.S.4:79 (1960) _......................... 14
Skinnerv.Oklahoma,lUGtr.S. {1942) ......_.._..11,12,13
Streetv. NewYork. U.S" (19G9) .q..._.....q........ 14-
. ' ,
f"
,', .jl
ill
"PAGE

States Constitution
Amendment _....__..........._.........._.................. 5.6
Eighth Alnendment ..................................._................. 5,6
Ninth Amendment ..._.........._ ..._.__............3,5.6,18,19
Fourteentll Amendment ........._..3,5, 6,11,13,17,18.19
Rule:
Minn. R. Civ. P.52.01 .........- __......._ ................................... 5
Federal Stewte.:
28 U.S.C. ..........................-._................._........... 2
Beate SeaMe:
Minnesota Statutes
Chapter 517 ..............................._..........................2.4,6,13
Other Auflwrities:
Abrs.harnsen, Cl'illle alld the Human Mind 117 (1944) 9
Cburcllill, HOlllOseXUal BelJavior Among Males 19
(1969) .._.........................._....._._..........._...............-.......
FinalReport of the Task Foreeon HomosexuuJ.ity of
the NationalInstituteofMental Health,October10,
1969 ....................__._....:..._.................._........_...............
Finger, Beliefs awl Practices A,,,.ong Mate Golle-gc
J. ABNORIIUL UD SOCIAl". PSl'Ol:L 51
(1947) ......._._ ...__...._..................._...............................
Freud,107Am.J.ofPsychiatry186 (1951) (reprinted)
8
9
1
10
......
w
iv
\. 1".lGI
Hart,Law,LiOOrtyandMorality50 (1963) .................._ 9.
James,TheVarietiesofUeligious lectures
XI,XII,XIII cl902) ........__...........:_........_...h 8 ....._...
. .
.K.ur8l!:Y, SEXUAL Bf;HAV!O!,!- IN' THE M.u:.:m (1948)
7
',' '. .
Westermarek, 2OriginandDevelopment ofthe Moral
Idea484 (1926) .............._......._;......._ ._ ......__......_ 8
"
: .
i,:'
, ., "
. ,
,.
1'1\
.'
1
..
"
.', .,
"
b 'l'Hl!l
&upreme C!tDUrt nt.tf1e Uutte!) &tales
OCTOBER TslI.M', 1912
No._.........
RlOHAm> JOHN' BAuK, et at.,
Appellants,
-V.-
GERALD R. NELIlON,
Appellee.
ON ..u>l'EAL J'BOM THE BUP:a:EHE COURT MINNESOTA
,JURISDICTIONAL STATEMENT
Appellants appeal from the judgment of the Supreme
CourtofMinnesota, entere<l on Oetooor 15, 1911. and sub-
mitthisStatementtoshow thattheSupremeCourtofthe
UDited Stateshasjurhldictionofthoappealandthata sub-
stantialquestioD ispresented. .
OpiniOUli Below
The opinion of the Supreme Court of Minnesota is re
ported a.t 191 N.W.2d 18.1). The opinion of the District
Court for Hennepin County is unreported. Copies of the
opinionsaresetoutin theAppendix,mlt'a, pp.10a-17aand
1Sa23&.
.J:>.
a

(,.)
:r
2
Jurisdiction
Thissuitoriginatedthrougnanalternativewritof mall.
damua to ..tu issuethe.1I18niage license to
appellants. The writ of Jllandamuli was quashed by the
HennepinCounty District Court on JanuaryS. 1971. 0.
appeal, thejudgmf:ntofthe. Supreme CourtofMinnesota
a.IfI:rming theaction:ofthe Court was entere4 011
October15,1911. NoticeofAppel;\l to theSupremeCourl
of the United States'was1Ded iu the Supreme Court or
Minnesota on January..lO. 1912. The time in which to filt
this Jurisdictional.'StatementwasextendedonJanuary12,
11)72, by order of Juitiee nlaokD!un.
.'
The jurisdictioD of" (b!i'Sllpreme'Court to review tbill
deeision OD appeal is by Title 28 u.s.a., Seo-
tion1257(2). .....
" Involved
Appellants have- never been advised by appellee which
statute precludes theiIISlianee of''the Jnarriage license to
them,andtheSupremecoUrtofMinnesotacitesonlyChap.
ter 1111, .in tts,opinion. ACCOrdingly,
thewholeof Chapter51'1.isreproduclld inApp., infra, pp.
1a...9a. .':, . ,:'
:'. ;1
,.
I
..
J I
,", I
,", .,", 'I......'
..
a
QueetioDll Pre.ented
1. Whether a.ppellee's refusal to sanctify appellants'
marriagedeprivesa.ppellantsoftheirlibertytomarry
andoftheirpropertywithoutdue process oflawun
der the Fourteooth Amendmllllt.
2. Whether appellee's refusa.l, purlluant to Minnesota
marriage sta.tutes, to sanctify appellants' marriage
becausebothareofthemalesexviolate.their rights
under ilie equal protection clause ofthe Fourteenth
Amendmllllt.
S. Whether appellee's refusal to sanctify appellants'
marriage deprives appellants of their right to pri-
Va()y under the Ninth and Fourteenth Amendments.
Statmnent of the Calle'
Appellants Balter and McConnell, two persons of the
male sex, applied for a marriage license on YAy 18, 1910
(T.9;A. 2, 4) at the office of the appellee Clerk of Dis-
triet Courtof HennepinCounty" (T. 10).
l T. refers to the trial trlmllCript. A. refers to the AppendiJ: to
appellants'briefbefore theMumesotll. Supreme Court.
Appe1laut MoCwmell is also petitioner befora this Court in
MOOOllMU v. Ander80!1, petit. for em.filed, No. '1]978 in which
beseekaJ'flviewofthedecisionoftheUnitedStatesCourtof Appeata
for the Eighth Oll'lluit, allowing the Board of Begent1l of the Uni.
versity of Minnesota to refuse bim elllployment lIB head of the
cataloguedivision of theSt.PaulCamPWl Librar), on the groWlds
that"IlispersonalconduBt, l1li repreKt!lIted ill the public and Uni.
versity newa lIIedia. is notcoDsilltent with the interest of the
University." . .
The efforts of appellants to get married evidently percipitatad
the Regents' deewon not to ewployMr. McConnell.
&'
C/)
CD
\'
4
Upon advice of ':the office of the Hennepin County At-
torney.appelleeacceIltedIlPliiillants'applicationandthe....
upon requested a'fonIlal:opinion 'Of County Attol'llef
(A.7-8) todetemiine whether themarriagelicense should
be issued. Inaletterdated May 22, 1970, appelleeNelllOll
notified appellantBaker he "unable to issuetho mar
riage license" "sufficient legal impediment 1iet
thereto prohibiting the marriaS-e of two male persoa."
(A. 1;T. 11). H'Owever, appellant haa ever heeD
informed that lie iii individually incompetent to mar!,),.
andno specific bas';ever been given for notiS9UiDI
thelicense. '.
,', ,
MinnOS'Ota. Statutes;section 1.'117.08 states that only the
following information :will, be elicited c'Oneerning a mar-
riage license: nam.e, residence;date and place 'Of birth.
race, terminati'On''Of pro'lious lllarriage, signature ofap.
plieantanddate Altho'l1gh they,were asked oraUy
atthe time 'Of which,was to be thebride &Dd
whioh was to be the'groom (T. T. 18), the forma for
applicationforamairiageJicense'didnotinquire8S tothe
I . '!I'
sex'Of theapplieants; l-Iowever,appellantsreadilycoucede
thatbothareofthe'male89L
Subsequentto ,den:iil:1'of 'a appellantsconsulted
with legalcounsel. On December 10. 1970, a.ppellants ap.
plied to the Distnct Conn of,Hennepin County for aD
alternativewrit'Of (A. 2),and sucha writ'WU
timely served 'Appellee Nelson continued
to refuse to issue tM appellantsloa ma.rriage license. In
stead, he elected to appear in. C'Om.t, show cause why hi
had not done as oomma.n<led, '.and make his return to the
writ (A.4). ,,'.' :' '.
:;
I", .1
",
..
"
....
5
The matter was tried on January 8, 1971, in District
Court, City of Minneapolis, Judge Bergin prtlsiding
(T.l). Appellants BaJror andMcConneU testified on their
own behalf (T.9;1'.15) asthesolewitnessl:llil. Afteroloil-
ing arguments, he quashed the writ of and
ordered the Clerk of District Court "not to issue a mar-
mgelicense to the individuals involved" (T. 19). An or
der was signed to thQt effect the same day (App. infra,
p. 12&).
Subsequent to the trial, counlilel for appellants moved
the court to fimi the facts IIpecially and statel:leparate1y
its conclusions oflaw pursua.nt to Minn. R. Civ. P. 52.01.
Judge Bergin then madecertain findings of fact and con
clusions of law (App. itn./ra, p. 14&) in an aJUllnded or-
derdatedJanuary29, 1971. Suchfindings andconclusions
were incorporatedintoSlId madepart'Of the order signed
January8, 1911. The Courtfound that the refusal ofap-
pellee toissue themarriageliceasewas nota violation of
M.S. Chapter 517, SlId tllat such refusal was not a viola-
tion of theFirst, Eighth, Ninth or ll'uurteenth Amend-
ments to the U. S. Constitution,
A timely appeal was made to the Supreme Court of
Minnesota. Inan Ol)inion flIed'October 15, 1911, the Su-
preme Courtof Minnesota. affirmed theaction of thelower
court.-
_In early August, 1971, .Tudge Lindsay Arthur of HOlUlepin
CountyJuvenile Oonrtissuedan01:4e1: grantiDg the legal adoption
of Mr. Baker hy Mr. MeConnell. The adoption permitted Mr.
Baker to (!III!.nge Ills name from Riehard Jo1u1 Bilker to Pat Lynn
McConnell, On A.ugust 16, Mr. Mlehlilll Itle(Jonnell allllle applied
for a marriagelicellse in Mankaw, Blue CO\Ulty. Minnesota
fa!'himselfandMr.Uaker,wllo UKed thenaruel'atLynll McConnell.
Under IIlinnel!otli. law, only Olae party need apply for a marriage
license, Since themarriage applielltioll does lIot in'luire lIS
!....
,,
6
How the Fe,deral Were RaiSGd
AppelIants contended thllt if Minnesota Statutes, Chap.
ter 517, were COlllitrutod so as to not allow two persona or
the same sex to lJUliiy, then the"Statutes were in violalioll
of the It'irst, Eighth, Nintll, IUId Fourteenth Amendment.
to the United States Constitution .in their Alternative Writ
of Mandamus (App. in/fa,' pp. lOa-lla}, at tlte Ilsaring
before the District Court on January 8,
1911 (App. infra, '1', 1'28.), ilnd to the Supreme Court or
Milmesota (App. infra, po. constitutional clail1ll
were expres.sly considered 1m9 rejected by both courts
below. :,
The Are, SUh8tlU!tiai
'. . .
The precise question' is t"!'o individuals, solely
because they are of the SA\lle .lIex, 'Ulay be refUsed forma.!
legal sanctification ratilicatipu 'of their marital rela-
tionship. ' , '
At mst, the qnellq'on and relationahip may
well appear ,'to heterosexuala. :But
\ . .'. I
to _, the biae.xual nalne Pllt McConnell doubtleea kept
the cleric from Jullkillg Any about, the seXE$ of the llarti-.
Shortly aftar the Iiceruie iIIlIl,li, Mr. !doCol1lleJl', adoption {If Mr,
llaket' Willi made puhllc .by"Judge Artbul"-ContrafY to Milll1eaota
IllIV. 'the County Attllraey for Earth County then diaeoveHd
that a lIIarrie.ge lkense had isl;ued to ,t,Jle 81)(Iellunts, IIoIld on August
81, he "declared the license void,oIl: growuis," Neverthe-
on September a, tlllI lIppclla.utli'. were married in a
(;eren\<)UY In South Minneapolis. Aoo'!1t a week later the lieenae
WIlS to the Blue Earth CooritY.Clel'k of Dilltrict Oourt. It ia
not known wiIetber lie lIIed it, luit, ullder Ule l\1ilUlesota statllte
Us not required. ;t"urtllfll",' filiuS do.' not ailed Vllliditr.
' ..
..' ....
""
'1'
aeither the question nor the proposed rela.tionship is bi.
lIIItte. Indeed, that first impulse provides us with some
:' sneastll'6 of the continuing Impact on our society of preju-
dice against non-heterosexuals . .And, 8JI iIlwnillated within
the oontext of thiB case, this prejudice has severe eonse
The relationships contemplated is neither grotellque nor
\IIlIlommon. In faet, it has been established that homo-
aexuality is widellpread in our society (as well as all other
societies). Reliable studies have indicated'that a signif-
icant percentage of the tol:al. auult populatil1u ot the United
States have engaged in overt homoseJtuai practices. Nu
.bl,&rOus single sex maritall'elatioDshlps exhit de facto. See,
e.g., A. KIliSli:Y, SZXUAL BEHAVIOfl UI' THE Bl71UN MALl!I
(1948); FiDgor, Bel1l Belie/a and pf'a.ctices A.mong MqJe
College SWiJe'1lJs, 42 J. ABNO.llJl{AL AN'D SOClloL PsYOH. 57
(1947). The refusal to sanetion lIuch relationships is a.
denial of reality. Further, this refusal denies to mllDy
people important property and personal interests.
This Jurisdietionai Statement undertakes to outline the
rmbstantial reasons why persons of tIle same sex would
want to be married in the sigllt Ot the law. Substantial
property rigltta, and other Interests, frequently turn on
legal retJognition of the marital relationship. Moreover,
both the personal and public symbolic importance of legal
ratification of !lame selt marriages cannot be underesti-
mated. On the personal side, how better may two people
pledge love and devotion to Dlle another than by marriage.
On the public side, preju(liee against homosexuals, which
tends to bp. phobie, is unlikely to be cured until the public
a.eknowledges that hOln03exna!s, like all people, are en
titled to the full protection and recognition of the law
8
Only then will public perceive that homosexuals are
not freaks or uniortl,mate to be Hwept under
the carpetor to be for IlllXioUIl pJiantasies aboul
one'sidentity orchildrElarmg
..
A vast literature reveals'.'sevei'a!'IlypotheseN to expla.in
the deep prejudice aga"imst homosexuals. One authority
maintained thathostility, tohqmoseximl conductWall orig.
inlillyan"aspectof';lcOnOmiCIl," in thn.t'itreflocted the eco.
nomic importance of lurge'fuililly grtlupings in pastoral
and agriculturuJ. societies, E. Westc.rDJarck, 2Origin and
Development of 140ral Idea 484 (1926). A secOlid
theorysuggests thathomosexuality wall originally forbid.
denby the"early part.ofeffor.ts to "surround
,,the appetitive with prohibitions." W.
HomosexualBehaviorAlDOngMaillS19 (1969). Underthi'
theory, opposition to clolll'ly related to
religious imperatives,'fh 'the need to establish
moral Buperiority ;t'.agan [d., at 17; ses alllO
W. James, TheVa.rieties of Heligiolls Experience, lectures
Xl,XII, XIII (1902).' ":" ,,!
",,!'
WhatevertheapPl'opriate ofitsorigins,psy.
chiatrists and sociologists'are nearly agreed on the
reasons for the of the postility. Itis ODe of
".
those"ludicrousandhamiful
tJ
prohibitionsbywhichvirtu.
, . ,
ally alI sexual matter!! are still. .reckoned "socially taboo,
illegal,pathological,orhighlycontroversiaL" W.
supra, at26. It continul!1l; a8it q;Uite with.
out regard to the aetual uhara9,te#stics of homosexuality.
Itisnourished, all are thevariQUS oULer sexual taboos, by
anamalgamoffeara:iLd- ,ld., at20..35. ItUr sup-
ported by a popular of the causes and charac-
teristicsofhomosexuality that'isno'more deservingof our
reliance than the J,i1rnperor belief that homo-
9
sexuality causes earthquakes. H. Hart, Law, Liberty and
Morality 50 (196B).
There is now responsible evidence that the public at-
titudetowardthehomosexualcommunityisaltering. Thus,
the Report of the 'l'ask Force on Homosexuality of
the National Institute of Mental Health, October 10, 1969,
states (pp. 18-19):
"Although many people continue to regard homo-
sexual aotivlties with l'epugnance, there is evidence
thatpublicattitudesIlrc changing. Discreothomosexu-
ality,togetherWiUL nJanyotheraspectsofhumansexua.l
behavior, is b4Jing.recognized more and more as the
private business of the individual rather than a sub.
jeCltforpublicregulationthroughstatute. Manyhomo-
i
sexuals are good citizens, holding regular jobs and
!
leadingproductive lives." I
To a certainextentthe new attitudes mirror increasing
!
scientific recognition that homosexuals are "normal," and
that acoordingly to penalize individuals for engaging in
suchconductisimproper. Forexample,inD. Abrahamsen,
Crime and the Human Mind 117 (1944), it is stated:
"AllpeoplehaveoriginallylSisexualtendencieswhich
are more or less developed aDd which in the course I
I
oftimenormallydeviateeitherinthedirectionofmale
or female. This may indicate that a trace of homo.
I
sexuality, no matter how weak it may be, exists in
everyhumanbeing."
I
Sigmund Freud summed up the present overwhelming
i
attitude of the scientificcommunity when he wrote as fol- i
lowsin1935:
I
11
[
o
Q?
...,.
...,.
......
N
o
o
.. (0
I.

:, .







HIlI '. '
10
"IIomoseS:llality ill assnredly no' advantage but it i.
nothing to be ot', no no (tegrlldation. it
cannot be classified as an ilInclIlJ i we consider it to be>
a variation of the sexual produced by a eel-
tain arrest of sexual ,development. MWlY highly J't.
spectable of arte!,ent and Dlodern time!! JlILve
been hOlllosexualS, ,silvera} 'of tlle greatest lnen amDIIA;'
them (Plato, cia Vinci, e1.(:.,.
It is a great injnstice to pers!!Cute homosexuality 81
crime and cruelty tuo." 'lteprinted in 101 .Am. J. oC
Psychiatry 786..81'
In the face of seientifiil knqwledge and changing public
.. , li:tti.tudes it ill plainly. all 'Freud said, "a great injustice"
to peraooute homosexUfl'ls. . _. '
Ttlis injustice is COIJlPuunQ.'ed, we suggest, by the flltt
that there is no jUlitificatiOD in for the discriminatioa
agailUlt homosexuals.' -;Beeause. orabilling prejudice, appel.
lants are being delll'ived of', a right-the tight to
marry. As a. result or. this they have been
denied numerous benefits .awarded by .law to oth&rB I!imi-
Jarly situated-for childle{!s heterosex\'w couple.
Since this action ''Ilinin filed, others have been insti.
tuted in other stat4!a. 'I'Jlis C9uf t 'SI decision, therefore,
would affect the mauiage of virtually every State
in the Union. '''..
,,'. \, \.
!,'
,
'/
,
See, e.g., Jon611 v (Ct. Apps. Ky. 1971).
.. 'I,.
11
J.
Respondent'a refwlal to ea.a.ctffy appeJJaa18' marria,8
deprives appeUaDlti of liberty and property ill violation
of the due prOCNa aDd protec:tloa claUlleti.
The right to marry is itself a fundamental interest, fully
protected by the due process and equal protection clauses
of the Fourteenth Amendment. See Boddie v. Oomr.ecticut,
401 U.S. 371 (1971); Lovi'flg v. VirO-i",ia, 388 U.S. 1 (1967) ;
Griswold v. OcmnBctiC'Ut, 381 U.S. 479 (1960); 8'ki'n'ller v.
Ohkwltrw., S16 U.s. 535 (1942); Meyer v. Nebraska, 202
U.S. 535 (1923). In addition, significant prnperty interests,
also protected by the due process cla.use, flow from. the
legally ratified marital reJationship_ In his testimony at
the trial, the appellant Baker enumerated six sucb in.
terestl! which he cannot enjoy because of the State's re.
funl to recognize his marriage to the appellant MeCOWlell:
L '!'he ability to inherit from one another by intestate
succession.
2. The availability of legal redress for tlle wrongful
death of a partner to a marriage.
. a. The ability to sue under hearlbalm statutes wllere
in eft'ect.
4. Legal (and cOllsequently cOmmunity) recognition for
their relationship. '
5. Property beIlefits SOC}1 iUl'the a.bility to own p rollerty
by tenancy-by-tbe-entirety in states where permitted.
6. Tax benefits under both Minnesota and feeeral stat
utes. (AmOl1g others, theB8 include death tax benefits
I
I
-,
I
i
I
i
<
i
i
I
I
I
I
I
I
I
!
I
I
I
I
)
I
12
and income under the revieed Fet!-
eral Income .
There are irul.lnneraule other legal advantages that CAlI
be gained only inthe relatiol1$hip. Only a few or
these will be listed ,fer iIlust.I:ll.tive !Jurposes. Some lltat'!
climinallaws prollibit aeXllll.l allts between unmarried per.
SOliS. YIUlY governu.ent beneJi.ts aro available only to
spouses and to surviVing spouses. .This is true, for ex-
amIlle, of many Rights to public bouamg
frequently turn on "8, inariW relationship. FInally, wnell
there is a formal lnl/-r.Ual on,! spouse CSJInot
.. give or be forced to, evidence againat the other.
The individnal's iritel:esta,' pereol\a't and property, in ..
marriage, are deemed fundal,ellta(: e.g., Boddie v.
Oom:.ecticut, .supra; V. Jlirginia, 8fllJra,j Griswold
v. Oonnecticut, v. Oklakonuz, 8Up1'a; Meyer
v. .supra:' ':!-'lIUS' !illirria&,e comprilles a blUldle
of and interests, ml!-y.'not be interfered with,
under the guise of protecting the public interest, by gov-
ernment action which' hi or' invidious or wftiJol1t
at least IIreasonable.; to 80m\,! important and legiti.
:m.a.te state purpose. Fl.&: Meyer v. ;Nebrll8ka, 8UprQ.. In
fact, because marriagli is'!l- fundamental burna:n right, the
state must demonstrate a subord!nllting interest wllich Is
comp&lling, before it. may 'interfere.. with or prohibit mar-
riage. Cf. Bates v. Cit'll of Wlle,;R4t:k, 361 U.s. 616 (1960).
In a sense, the ana,I-ysi.s presented here involves' a.mWDg
of both dne ptotection doctrines. Aft
they an applied to ilie w? hI disability at
issue in this case, they tend to mel'S'!. Refusal
to sanctify a marriage solely because both parties to the
'11 .'
18
relationship are of thll same sex is precisely the kind ot
arbitrary and invidiously discriminatory conduct that is
prohibited by the F.ourteenth .A..mendaumt equal protectioD
and due proceliB clausell. Unless the refusal to sanetify
can be shown to furtber Ilome lcgitbnate government in-
terest, important personal and property rights of Ole per-
Bons who wish to many are arbitrarily denied without
due process of law, and tlte class of persons W}IO wish to
engage in single sex marriages are being subject to in-
vidious discriminlltion. With regard to the due process
component, see Boddie v. Co-nnecticut, St'P7'O,j Grnwold v.
OOMleCtiaut, 8'Uprg, (all the tnajority opinions); 1I1eyer v
Nebraska} supra. With regard to tile Bqllsll>rotectioD COlll-
ponent of this argument, see Loving v. Virgi.1'ia, S1I.pra;
McLaughU", v. Ftorido., 379 U.S. 184 (HJ64) j Bkitlner v.
0"141107114, .supra; c. Reed v. Reed, 92 S. Ct. 251, 80
L.ed.2d 225 (1971).
Applying due process notioia, in this Ctlse, the sUi.te has
not shown any reason, much Jess a compelling one, for
refusing to sanctify the marital relationship. Its action,
therefore, arbitrarily invades a fundamental right.
Separately, each appellant is eompetent to marl')' under
the qualifications sllCcilied, in Minnesota Statutes Sections
511.08, subd. 3, 517.02-517.03. CompaN Loving v. Virginia,
.supra. 'Why, then, do they beeome incompetent w}len they
seek to marry eacb otherf
The problem, according to the M'i:nnesota. Supnme Court,
appears to be definitional ox: historical. The institution of
marriage "a.s a. union of a man and a woman, uniquely
involving the procreation and rearing of children within
a family, is as old as the Book of Genesis" (App., infra,
pp.208-21a). 011 its face, however, Minnesota law neither
i
o
Q?
.....
.....

&S
-- 0
o
,....,
I.....
"w
14
statesnorimplies this deihlition. F\\rthermol'e, the anUq.
uityof a restrictioncertaUlJy 110 bearingon itsconsti.
tutionality,anddoes not,withoutInytlringadditional,dt.m.
onstratethattheatate'liirlterestiii tin6ltlliberingtliematH.l
relationshipis8ubordi.n!LJuignnd'compelling. Connecticut's
:restriction on birthcontrohfevicetlhad been 011 ite statute
booksfornearlya centuty,beforetJlil! Courtstruckitdown
on the ground that itlUiconstitlltionally invlI.dml tile lId.
vacy of the Jtlantall'eltl.tionsltip. Gt'is'WolcL v. COn1leCliCIII,
sUP""
. "SurelytheM.j.nnesota'SUlll'lllne cannotbesuggest
ingthatsingle sex lI.1ay.be'hlJiuied becaUJIe they
are bya or os'r population to be
sociallyreprehensible. 81Jcll Iigovernmental motive would
be neither substl!.n..tial.nor, 1iubordinating nor legitimatl>.
See, e.g., lAving 'v; Viiginw':supra; 001,e", v. OolilorniD,
403 U.S. 15 (1971v; 8trCt!.t .NewlYork, 894 U.s. 576
. I,
. , ' (1969).',' .'
Even assuming tllat eonstitutionally
make marriageability on the partners'win-
I,
.ingqelJll and a.bility to a,nd 'to raise children,
:Minallsota's absoluta bap QP'>lingle.:sell: marriages would
stillbe1lll.eonstitutional. tlllYUgh thegovernmental
purposebe legitimateand 8l1bstantial{,(hatpurposecannot
be pllrslled by means tllat hroadly':sti'fle fundamental por
sonallibertieswhenthef.pd,canbe m?r8narrowlyachieved.
The breadth of legislative- nh;:iclgment"must be viewed in
theligbtoflessdrasticmeaJI8 ffJr';'chievingthesa.mebasic
purpose." SMUOGv. 364 tr:S, 479, 488 (1960).
Thereisnothingin tla!np,tm's of 8iIX marriagaa that
precludesprocreationan,lI,cbild Adoption isquite
"
"
15
clearlyasocially formofprocreation. Italready
renders procreative many marriages between perllons of
, oppositesexesinwhich thepartnel'8arephysicallyoremo
tionally Ullable to conceive their own Of late,
even single persons have become eligible to be adoptive
parents.
Appellants subllut thllrefore, that the appellee cannot
describea legitimategovernmentlnterestwhich is so com
pellingthatno lessrestrictivemeanscanbefl:>und tosetlUre
that interest, ifthere is oue, than to proscribe single sex
mlU'liages. And,evenifthetestto beapplied todetennine
whether the Minnesota proscription offends due process
involves only qnestiolls of wluttller Minnesota has acted
arbitrarily,capriciouslyorunreasonably,appellantssubmit
that the appeUee has failed under that test too. Minne-
sota'sproscriptionsimplyhasnotbeenshown toberation-
allyre1ated toanygovernnlental interest.
The touchstone of the equal protection doctrine as it
bellrII on this ease is found in Loving v. Virginia, 388
U.S. 1 (1967). l"1Jle iSllUe befol'a the Court in that ease
waswhetherVirginia's statute,prohibit-
ingmarriagesbetween 11ctSODs of the Cal1caaian race and
any other race was unconstitutional. The Court struck
doWll. thestatutesaying:
There is patently no legitimAte overriding purpose
I.:ndependent of illvidioUfl racial discrimination which
justi1iesthisclassification. Thefact thatVirginiapro.
hibits only interracial marriages involving wllite per
sons demonstrates that Ule racial clallSifications must
standon own justification as measures designed
to maintain Wbite Supremacy. We Ilave eonsistently
1
t-
0\' ..
'.
I
I'
I,
I
\
I
16
:. f
denied the constitutionality of measures which restrict
the rigJlts 01 on ac.count of race. There C&II
be no doubt tltai' :s:esh'icillng the freedom to marry
solely because of J..Mial.cl!l,saifications violates the cell-
tni meaning of Clause. Lot'ill,
v. Virginia, SSS .U:S. 8t'1112. ..
The Minnesota Supl'eme Court ruled that the Lovittg
decision is inapplicable -to tile instant case' on the gronnd
" _ .,that "there is a clear. between a marital reHtric
tion based merely upon rAce Ilnd one h;1lied \\11011 the funda.
mental difference in sex!' (App:, inf;'u, 1). 28a). It is tnl!
that the inherently susi;ect test which thill Court applied
to classifications based UllOn tace., (ooe, e.g., Loving ,.
Virginia, supra,; v. 'Flqrida, supra), has not
yet been extended to based upon lIell: (see
Iteea v. Reed, 92 S. Ot: 251., 30' L. ed.2d 225 (1971). How.
ever, this Court bas 'ill(licated Ulat a fundamental
right-eUc}1 as denied .to a group hy some
'..
classification, the dewal liltoulii be j114ged by the stand/l.fd
that places on the. 'burden of delnoniltrating
a legitimate subordinating that is compelling.
Shapiro v. Thompllo.n, 3lJ4' U.S. 618.. (1969). As we have
already indicated neiUler a. nor a subordinating
reason for this halJ' been. or can be ascribed.
Even if we assume. that the classmeation at illSue in this
easc ill not to be judgea .iIY' more. stringent "constitu.
tionally snspect" an4 interest" standards,
the :Minnesota claflllifi.cation is infirm.
.: ..
The discrimination jn. this caee is one of gender. Espe.
eialJy significant in this tilt'! Court's recent de-
cision in Reed v . .Reedi 92 S. Ct. 251, 80 L. ed.2d 225 (19'11),
. .....
.,"',
11
which held that an IdaJ10 statute, which provided that as
between panORa equaUy qualified to administer estates
males must be vre1'el'red to females, is violative of tlle
equal protection claUiSe of the Fourteenth Amendnillut.
There the Court sa.id (30 L, ed.2d at 229):
In applying that ('laU5C, this Court lIas consistently
reeognil1led that tile Fourteenth aIllllndment does not
deny to States the power to treat different elasses of
persons in different ways. [Citations omitted.] Tlle
Equal Protection Cla.utle of tllat Amendment does,
however, deny to States the power to legislate tllat
different treatment be accorded to persons placed by
a etatute into different classes on the basis of criteria.
wholly unrelated to Ule objective of that statute. A
elassmcatlon "must be reasonable, Uf)t arbitrary, aud
must reat upon some ground of difference lllloVillg iii.
fa.ir and substantiaL relation to tbe object of the legis.
lation, so that all persona similarly circuIl:lstaneed
lIhall be treated alike," Itollster Gl'ano Co. v. Vi"ginia,
253 U.S. 412, 415 (1920).
Childless sa:me sp-x couples, tor example. are "similarly
circumstanced" to childleSll heterosexual couples. Thus,
under the Reed and Royster cases, they must be treated
alike.
Even when judged by tide less stringent standard, the
Minnesota CIIlBSifica.tioll ea.nnot PIlBS constitutional JIIuster.
First, it is difticult to ascertain tlte objl'flt of the legislation
coustrued hy the M!nnesota 'collrts. SecDnd, wbatever ob-
jeots are ascribed for the legislation do not bear any fair
and substantial relationship to the gronnd upon which the
"
18
diff'eren(le is drawn. same sex and llilrerent lex
lIlarriasea.'
.......,-
IL' I'
.,'
Appellee's refulal ,.legitmiiue. appellants' mD'l'iIIp
cOlUlituta an UDW8ft'8Dled invasion of the pthaey hi
vioilltion of the Niulb 'sud Fourleenlb 'Amendmeote.
t"
, , .
, M.arriage between two is, jr' persona! affair, Oll&
",,, whicll the state may or, ellc\llI1ber only when
is a compelling reason' to' do, 'so. Mar'rlage and marital
privacy are risllts protected by the Ninth
I, '
Amel1illlleDt as wen ai",tlie, Fourteentti Amendment due
proee8ll cl.&use. By not allow,ing appellants the legitimacy
of their marriages. the' st.,te' is tllem this buu:
rigbt and unlawfully medUluig in tlleij: privacy.
To hold that a light 110 and
so deep-rooted in 9!lt" ,lIociety &1;' tbe right of privacy
in murlage maybe..,iof,inged liecause that right Is
not guaran.ted in so' many '\Vords'.by tlle first eigbt
amendments to the is to ignore the Ninth
Amendment and to. live it nO'e!lect whatsoever.
Gri&wo/dv. U.S. 410';4fll-492 (Ooldberg, J..
concurring); see also, MiniM ,v. State:. Civil Serv
,ice Oommi.ssion., 312 F:SI1PP. 48a (N.D. Cal. 1970). Ac.
cordingly, MiDllesota's refullal,to legitimate the appellants'
marriage Inerely of tile, seX of tile 1l.1>llucants ie
..... ''"\',
The fact that tile parti. tb the dfSh'lld lWlIe sex marriage .&r"e
not bUmid from marril:l.BlI altfigethN" I, to tile constitu-
tionl1l i/Olue. Iilee Reed v. &wtL, IIll)''''; f..olillU 'V. VwgtlliG, supr/%;
v. PklriM., SIIpr3.
I
j
19
i
a denial of the right to marry and to privacy reserved i
to them of the Ninth and Fourleeoth Anum(\m.enbl, See

Grl8wolrl v. O()MlectiC'IIt, 81Ipra; Lovfng v. 388
i
U.s. 1 (1967); cr. Boddie v. O<mnectiC1.d, 401 U.S. 371
I
(19n). Indeed, it is the most fundaJmmtal invasion of
i
!
,
the privacy of the marital relationship for the state to
attempt to scrntinize the intemllI dynamics of that rela-
tionship. Absent a showing of compelling interest, or an
invitation from a party to the relationship, it is none of the
I
state's business whet.hol' the individua.ls to the relationship
intend to procreate or not. Nor is it t}le state's buein8sa to I
determine whether tIle parties intend to engage in Bex acts
'or any IJarticular sex acts. Cf., e.g., Gri8wola v. Oon.necti-
\
cut,
CONCLUSION
For the reasons eel forlh above. prohable jUl'iAdiclion \
should he Doted.
i
Respectfully 8ubUlitted,
R. MlO&Bto WE'I'iLPBBE \
Minnesota Civil Lioorties Union
2323 East Hennepin A venue 1
MiDneapolis. Minnesota SS413
\
i
I
LUN S. CASl'll1B&
I
i
!
1625 park Avenue
Minneapolis. Minnesota 55404
Atto,neys tor .J..ppeUant.s
,
!