In the Marriage of JB and HB: Amicus Brief – Rep. Chisum & Hon. Staples - 12062011

8/13/2019 In the Marriage of JB and HB: Amicus Brief Rep. Chisum & Hon. Staples - 12062011

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No. 11-0024

IN THE SUPREME COURT OF TEXAS________________________________

In the Matter of the Marriage of J.B. and H.B.________________________________

On Petition for Review from theFifth Court of Appeals at Dallas, Texas________________________________

BRIEF MICI CURI E OFTEXAS STATE REPRESENTATIVE WARREN CHISUM AND

THE HONORABLE TODD STAPLESIN SUPPORT OF THE STATE OF TEXAS

________________________________

Kelly J. ShackelfordTexas State Bar No. 18070950Jeffrey C. MateerTexas State Bar No. 13185320Hiram S. Sasser, III

Texas State Bar No. 24039157Erin Leu

Texas State Bar No. 24070138LIBERTY INSTITUTE2001 W. Plano ParkwaySuite 1600Plano, Texas 75075

Tel. (972) 941-4444Fax (972) 423-6162

Counsel forAmici Curiae

FILEDIN THE SUPREME COF TEXAS11 December 6 A9:5BLAKE A HAWTHOCLERK


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TABLE OF CONTENTS

Index of Authorities ............................................................................................................................ iv

Interest of Amici Curiae ....................................................................................................................... 1Introduction ........................................................................................................................................... 2

Argument ................................................................................................................................................ 4I. The people and their elected representatives have determined that only

traditional marriage will be recognized in Texas, and courts should properly

defer to this policy decision....................................................................................................4A. There is an overwhelming democratic consensus that marriage is a union

between a man and a woman.......................................................................................4B. Judicial restraint and the principle of separation of powers dictate that

the people must decide this significant question of public policy..........................7II. The Texas Family Code unambiguously provides that voidance, not divorce, is

the proper remedy for two parties who wish to dissolve an out-of-statemarriage not recognized in Texas..........................................................................................9A. Recognizing this out-of-state marriage, even for the limited purpose of

granting a divorce, violates Texass public policy....................................................10B. Voidance is consistent with the Full Faith and Credit Clause................................11C. Precedent from Texas appellate courts supports voidance, not the

granting of a same-sex divorce...................................................................................13D. Other state courts have properly declined to grant same-sex divorces

when the states laws forbid the recognition of same-sex marriages...................15E. Voiding Petitioners purported marriage does justice for the parties...................17

III. Texas may constitutionally define the institution of marriage....................................19A. There is no federal constitutional right to same-sex marriage or same-sex

divorce............................................................................................................................19


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B. Laws that differentiate based on sexual orientation are subject only torational basis review; they do not trigger heightened scrutiny..............................22

C. Other courts have applied rational basis review when upholding a statesability to define the institution of marriage..............................................................23

D. Texas has a rational reason to limit the institution of marriage to the

union of one man and one woman...........................................................................24Conclusion ........................................................................................................................................... 27Certificate of Service ........................................................................................................................... 28


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INDEX OFAUTHORITIES

CASESAdams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) .......................................................................... 20

Andersen v. King County, 138 P.3d 963 (Wash. 2006) ....................................................................... 24

Baker v. Nelson, 409 U.S. 810 (1972) ................................................................................................. 19

Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) .......................................................................... 22

Boddie v. Connecticut, 401 U.S. 371 (1971) ...................................................................... 19, 20, 21, 24

Carter v. Green, 64 S.W.2d 1069 (Tex. Civ. App.Texarkana 1933, writ ref.) ........................... 10

Chambers v. Ormiston, 935 A.2d 956 (R.I. 2007) .................................................................. 15, 16, 17

Christiansen v. Christiansen, 253 P.3d 153 (Wyo. 2011) .................................................................... 15

Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) .............................................. 22, 24

City of Dallas v. Stewart, No. 09-0257,2011 Tex. LEXIS 517 (Tex.July 1,2011) ........................ 7

City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003) .................................................... 19

Conaway v. Deane, 932 A.2d 571 (Md. 2007) .................................................................................... 24

Dodd v. United States, 545 U.S. 353 (2005) ........................................................................................ 18

Equality Foundation of Greater Cincinnati v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997) ......... 23

Ex parte Ortega,759 S.W.2d 191 (Tex. App.Houston [14th Dist.] 1988, orig.proceeding) ...................................................................................................................................... 18

Ex parte Threet, 333 S.W.2d 361 (Tex. 1960) ................................................................................... 10

Garcia v. Garcia, 232 S.W.2d 782 (Tex. Civ. App.San Antonio 1950, no writ) ...................... 10

Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) ......................................... 22

Gray v. Gray, 354 S.W.2d 948 (Civ. App.Houston 1962, writ dismd) .................................... 10

Hartford Underwriters Ins. Co.v.Union Planters Bank, N. A., 530 U.S. 1 (2000) ............................ 18


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Hernandez v. Robles, 855 N.E.2d1 (N.Y. 2006) ............................................................................... 23Hicks v. Miranda, 422 U.S. 332 (1975) .............................................................................................. 20

High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ........................... 23

In re Cooper, 187 A.D.2d 128 (N.Y. 1993) ........................................................................................ 20

In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ...................................................................... 6

In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App.Dallas 2010, pet. filed) ............ 3, 13

Ivy v. Ivy, 177 S.W.2d 237 (Tex. Civ. App.Texarkana 1943) ..................................................... 21

Jackson v. District of Columbia Bd. of Elections and Ethics, No. 09A807, 2010 U.S. LEXIS2204 (U.S. March 2, 2010) ............................................................................................................... 8

Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ............................................................................... 22

Kern v. Taney, No. 09-10738, 2010 Pa. Dist. & Cnty. Dec. LEXIS 95 (Pa. County Ct.Mar. 15, 2010) ........................................................................................................................... 15, 16

Larchmont Farms v. Parra, 941 S.W.2d 93 (Tex. 1997) ..................................................................... 11

Lawrence v. Texas,539 U.S. 558 (2003) .............................................................................................. 20

Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911) ................................................................. 24

Littleton v. Prange, 9 S.W.3d 223 (Tex. App.San Antonio 1999, pet. denied)................... 13, 14

Lockyer v. San Francisco, 95 P.3d 459 (Cal. 2004) ............................................................................. 20

Loughran v. Loughran, 292 U.S. 216 (1934) ....................................................................................... 12

Loving v. Virginia, 388 US. 1 (1967) ............................................................................................ 19, 24

Maynard v. Hill,125 U.S. 190 (1888) ................................................................................................. 24

McConnell v. Nooner, 547 F.2d 54 (8th Cir. 1976) ............................................................................ 20

McGowan v. Maryland, 366 U.S. 420 (1961) ...................................................................................... 24

Mireles v. Mireles,No. 01-08-00499-CV,2009 Tex. App. LEXIS 2225 (Tex. App.Houston [1st Dist.], Apr. 2, 2009, pet. denied) (mem. op.) ........................................ 13, 14, 15

Morrison v. Sadler, 821 N.E. 2d 15 (Ind. Ct. App. 2005) .......................................................... 20, 24


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Natl Gay Task Force v. Bd. of Educ. Of City of Oklahoma City, 729 F.2d 1270 (10th Cir.1984) ................................................................................................................................................. 23

Nevada v. Hall, 440 U.S. 410 (1979) .................................................................................................. 12

ODarling v. ODarling, No. 106,732, slip op. (Okla. Civ. App. Mar. 11, 2010) ................... 15, 16

Ohio ex rel. Eaton v. Price, 360 U.S. 246 (1959) ................................................................................. 20

Pacific Employers Ins. Co. v. Indus. Accident Commn, 306 U.S. 493 (1939) ....................................... 12

Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) ............................................................................... 23

Pennoyer v. Neff, 95 U.S. 714 (1878) ................................................................................................... 27

Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010) .................................................. 22, 24

Portwood v. Portwood, 109 S.W.2d 515 (Tex. Civ. App.Eastland 1937, writ dism'dw.o.j.) ................................................................................................................................................ 11

Romer v. Evans, 517 U.S. 620 (1996) .................................................................................................. 22

Ross v. Goldstein,203 S.W.3d 508 (Tex. App.Houston [14th Dist.] 2006, no pet.) ......... 13, 14

Seth v. Seth, 694 S.W.2d 459 (Tex. App.Forth Worth 1985, no writ) ...................................... 11

Skinner v. Oklahoma, 316 U.S. 535 (1942) ......................................................................................... 24

Sosna v. Iowa, 419 U.S. 393 (1975) ..................................................................................................... 27

Standhardt v. Superior Ct. of Ariz., 77 P.3d 451 (Ariz. Ct. App. 2003) ........................................... 24

State v. Gonzalez, 82 S.W.3d 322 (Tex. 2002) ................................................................................... 19

State v. Naylor, 330 S.W.3d 434 (Tex. App.Austin 2011, pet. filed) .................................. 13, 14

Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) ................................................................................... 23

Vanderbilt Mortg. & Fin., Inc. v. Posey, 146 S.W.3d 302 (Tex. App.Texarkana 2004,no pet.) ............................................................................................................................................. 11

Washington v. Glucksberg, 521 U.S. 702 (1997) ........................................................................... 21, 22

Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) ....................................................................... 23

Williams v. North Carolina, 325 U.S. 226 (1945) ............................................................................... 21


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Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ................................................ 6, 20, 23, 24

Zablocki v. Redhail, 434 U.S. 374 (1977) ............................................................................................ 24

STATUTES1 U.S.C. 7............................................................................................................................................. 6

23 PA.C.S. 1704 ................................................................................................................................. 16

28 U.S.C. 1738C ............................................................................................................................... 12

43 OKLA.STAT. 3.1 .......................................................................................................................... 16

OKLA.CONST. art. II, 35 ................................................................................................................ 16

TEX FAM.CODE 6.501 .................................................................................................................... 18

TEX.CONST. art I, 32(a) ................................................................................................................... 4

TEX.CONST. art. II, 1 ....................................................................................................................... 7

TEX.CONST. art. XVII, 1(a) ............................................................................................................. 5

TEX.CONST. art. XVII, 1(c) ............................................................................................................. 5

TEX.FAM.CODE 3.404(b) .............................................................................................................. 18

TEX.FAM.CODE 45.105 ................................................................................................................. 18

TEX.FAM.CODE 6.204(b) ..................................................................................................... 5, 9, 10

TEX.FAM.CODE 6.204(c)(1) ......................................................................................................... 10

TEX.FAM.CODE 6.307 ................................................................................................................... 10

TEX.FAM.CODE 6.502 ................................................................................................................... 18

TEX.FAM.CODE 6.001 .................................................................................................................... 10

U.S.CONST. art. IV, 1 ..................................................................................................................... 12

WYO.STAT. 20-1-111 ...................................................................................................................... 16


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OTHER AUTHORITIESConstitutional Amendment Election Race Summary Report, Office of the Secretary

of State (Nov. 8, 2005) ..................................................................................................................... 5

H.J.R. 6, 79th Leg., Reg. Sess. (Tex. 2005) ........................................................................................ 2

Harold H. Bruff, Separation of Powers Under the Texas Constitution, 68 Tex. L. Rev. 1337,1340 (1990) ........................................................................................................................................ 7

HOUSE RESEARCH ORGANIZATION, H.J.R. 6 Bill Analysis, 79th Leg., Reg. Sess.,April 25, 2005. ................................................................................................................................. 25

JOAN FOOTEJENKINS &RANDALL B.WILHITE,OCONNORSTEXAS FAMILY LAWHANDBOOK256 (2010) ................................................................................................................. 18

JOHN

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ONTGOMERY,ET AL

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RACTICE ANDP

ROCEDUREB1.01[3] (2d ed. 2007) ............................................................................................................. 10, 15

John Wright, Dallas Man files Texas 1st same-sex divorce case, DALLASVOICE(Jan. 22,2009) ................................................................................................................................................. 15

Mary Parke,Are married parents really better for children? What Research Says About theEffects of Family Structure on Child Well-Being, CENTER FOR LAW AND SOCIAL POLICYBRIEFno. 3, 5-6 (2003) .................................................................................................................. 26

Record Vote No. 280. 104th Congress, 2d Sess. (Sept. 10, 1996) ................................................. 6

Record Vote No. 396, HOUSEJOURNAL, 79th Leg., Reg. Sess., 2205 (April 25, 2005) ............ 5

Record Vote No. 404, HOUSEJOURNAL, 78th Leg., Reg. Sess., 2116 (April 30, 2003) ............ 5

Richard N. Atkins, Discovering Daddy: The Mothers Role, inFATHER AND CHILD:DEVELOPMENTAL AND CLINICAL PERSPECTIVES 139, 144 (Stanley H. Cath et al.,eds. 1982) ......................................................................................................................................... 26

Roll Call No. 316, 104th Cong., 2d Sess. (July 12, 1996) ................................................................ 6

S.B. 7, 78th Leg., Reg. Sess. (Tex. 2003) ............................................................................................ 1

SENATEJOURNAL, 78th Leg., Reg. Sess., 988 (April 15, 2003) ..................................................... 5

SENATEJOURNAL,79th Leg. Reg. Sess., 2745 (May 21, 2005) ...................................................... 5

TEX.FAM.CODE 6.204 historical note [Defense of Marriage Act, 78th Leg., Reg.Sess., ch. 124, 2, 2003 Tex. Gen. Laws 171] ............................................................................ 17


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INTEREST OF AMICI CURIAE1

Amici curiae,Texas State Representative Warren Chisum and the Honorable Todd

Staples,are the authors of the Texas legislation defining traditional marriage.

Representative Chisum has served in the Texas House for over twenty years. He

represents House District 88, which includes nineteen counties located in the Texas

Panhandle. A leader in the Texas House, he chaired the Environmental Regulations

Committee for ten years and served as the Chair of the Appropriations Committee during

the 80th legislative session.

The Honorable Staples served as a Texas State Senator from 2001 through 2007, and

is currently a statewide elected official. He represented Senate District 3, which includes

sixteen counties comprising the greater part of East Texas. While in the Texas Senate,

Staples chaired the Transportation and Homeland Security Committee and the Workers

Compensation Select Interim Committee. He also served as the Vice Chair of the State

Affairs Committee and the Veteran Affairs and Military Installations Committee. Staples

joins this brief in his individual capacity and in his capacity as a former state senator.

In 2003, Chisum sponsored and Staples coauthored Senate Bill 7, which was codified

as section 6.204 of the Texas Family Code. S.B. 7, 78th Leg., Reg. Sess. (Tex. 2003). The

legislation clarifies that Texas will not recognize same-sex marriages or civil unions, and

deems such unions void under Texas law. In 2005, Chisum authored and Staples sponsored

a constitutional amendment providing that marriage is limited to unions between one man

1No fees were paid for the preparation of this brief.


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and one woman, later codified as article 1, section 32 of the Texas Constitution. H.J.R. 6,

79th Leg., Reg. Sess. (Tex. 2005).

As authors of the Texas legislation safeguarding traditional marriage, amici have a

particular interest in seeing that Texas laws defining marriage are properly interpreted and

ultimately upheld. Furthermore, as elected representatives of the people of Texas, amicihave

an interest in ensuring that the peoples will is not thwarted by courts that disagree with the

states duly enacted laws. Texas law is clear that same-sex marriages are void and against the

states public policy; therefore, Texas courts may not entertain divorce suits for same-sex

couples, even if the marriage is valid in the state in which it was celebrated. Texas law is

consistent with the United States Constitution, and provides voidance as a complete and

adequate remedy for individuals, such as Petitioner, who wish to terminate a same-sex

marriage granted in another jurisdiction. Amici therefore urge the Court to strictly apply

Texas law and affirm the Fifth Court of Appeals decision finding that Texas courts lack

subject matter jurisdiction to grant a same-sex divorce.

INTRODUCTION

On October 1, 2009, the 302nd Family District Court declared article I, section 32(a)

of the Texas Constitution and section 6.204 of the Texas Family Code unconstitutional, and

granted Petitioner a same-sex divorce. The consequences of that courts ruling were

sweeping. Its decision overturned the will of over seventy-six percent of Texans who voted

on how Texas should define the institution of marriage. Additionally, the courts ipse dixit

declaration that Texas must recognize out-of-state, same-sex marriages implicitly challenged

the constitutionality of the federal Defense of Marriage Act.


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On August 31, 2010, the Fifth Court of Appeals reversed the Family District Courts

ruling. It properly held that Texas courts lack subject-matter jurisdiction to grant same-sex

couples a divorce and that Texas laws defining marriage are consistent with the Equal

Protection Clause. In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App.Dallas 2010,

pet. filed).

The question of how a state defines the institution of marriage must be decided by

the people and their representatives, and not by courts. Texans have overwhelmingly decided

to define marriage as the union between one man and one woman, and they have declared

same-sex unions to be void. Texas is in line with the vast majority of States and the federal

government in declaring that only traditional marriages will receive legal recognition. The

Texas Family Code provides a clear remedy for Petitioner: the voidance of his purported

marriage. Recognizing Petitioner's out-of-state, same-sex marriage for the purpose of

granting a divorce contravenes the public policy of Texas and violates its law.

Texas laws defining marriage are consistent with the United States Constitution.

Sexual orientation is not a suspect class and there is no fundamental right to a same-sex

divorce; therefore, these laws need only to withstand rational basis scrutiny. Because there

are rational, legitimate reasons for the State of Texas to only afford official recognition to

traditional marriage, and not same-sex relationships, Texass laws are constitutional. This

Court should therefore affirm the decision from the Fifth Court of Appeals and uphold the

will of the people.


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ARGUMENT

I. The people and their elected representatives have determined that onlytraditional marriage willbe recognized in Texas, and courts should properlydefer to this policy decision.

The people of Texas and their elected officials have spoken clearly on the issue of

same-sex marriage: such unions are not recognized in Texas, and are null and void ab initio.

Instead of deferring to the combined judgment of the legislature and citizens of Texas, the

302nd Family District Court overstepped its authority by overturning section 6.204 of the

Texas Family Code and article I, section 32 of the Texas Constitution. The Family District

Courts ruling additionally invalidated the federal Defense of Marriage Act sub silentio. The

definition of marriage is a policy decision properly resolved by the people and their elected

representatives, not the courts.

A. There is an overwhelming democratic consensus that marriage is aunion between a man and a woman.

The issue of same-sex marriage is one of tremendous importance and contention.

The people of Texas addressed this issue in 2003 and again in 2005. After much debate,

Texans decided that its laws will only recognize marriages between one man and one woman.

Despite codifying the definition of marriage in both the Texas Family Code and the Texas

Constitution, the Family District Court imposed its own policy judgment over the contrarily-

expressed views of the people of Texas and their elected representatives.

In its initial order, the Family District Court struck down article I, section 32 of the

Texas Constitution, which provides that [m]arriage in this state shall consist only of the

union of one man and one woman. TEX.CONST. art I, 32(a). In 2005, the Texas House

and Senate approved the addition of this language to the Texas Constitution with


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substantially more support than the required two-thirds supermajority.2Indeed, over 77% of

all voting House members and 70% of voting Senators supported this constitutional

amendment.3On November 8, 2005, over 2.2 million Texans cast votes on this amendment.

Over 76% of Texas voters voted in favor of the constitutional amendment, overwhelmingly

affirming that Texas will only recognize traditional marriage.4On November 23, Governor

Perry certified the tabulation prepared by the Secretary of State and proclaimed this

amendment officially a part of the Texas Constitution.5

The Family District Courts initial order additionally invalidated section 6.204 of the

Texas Family Code, which provides inter aliathat [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. TEX.

FAM.CODE 6.204(b). With enormous support, the Texas Legislature enacted section 6.204

in 2003. In the Texas House, 93% of voting Representatives voted in favor of this bill,6

while the Senate passed the measure with a nonrecord vote.7On May 28th, Governor Perry

signed the bill into law, which became effective on September 1, 2003.

Texas does not stand alone in supporting the traditional view of marriage. There is a

national consensus that marriage consists only of a union between a man and a woman.

Texas is in accord with the vast majority of States in recognizing the exclusivity of traditional

2TEX.CONST. art. XVII, 1(a).3

The vote in the Texas House was 102 yeas to 29 nays. Record Vote No. 396, HOUSEJOURNAL,79th Leg., Reg. Sess., 2205 (April 25, 2005). The vote in the Texas Senate was 21 yeas to 9 nays.SENATEJOURNAL,79th Leg. Reg. Sess., 2745 (May 21, 2005).4Constitutional Amendment Election Race Summary Report, Office of the Secretary of State (Nov.8, 2005).5TEX.CONST. art. XVII, 1(c).6The vote was 119 yeas to 9 nays. Record Vote No. 404, HOUSEJOURNAL, 78th Leg., Reg. Sess.,2116 (April 30, 2003).7SENATEJOURNAL, 78th Leg., Reg. Sess., 988 (April 15, 2003).


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marriage. Indeed, forty-one States define marriage as between a man and a woman either in

constitutional amendments or statutory provisions.8

Furthermore, the federal government only recognizes traditional marriage. The

Defense of Marriage Act (DOMA) amended the United States Code to affirm that [i]n

determining the meaning of any Act of Congress, or of any ruling, regulation, or

interpretation of the various administrative bureaus and agencies of the United States, the

word marriage means only a legal union between one man and one woman as husband and

wife, and the word spouse refers only to a person of the opposite sex who is a husband or a

wife. 1 U.S.C. 7 (2011).9DOMA passed with broad, bipartisan support. In the U.S. House,

over 83% of voting members voted in favor of this act.10In the U.S. Senate, the vote was

eighty-five Yeas to fourteen Nays (over 85% support), with forty-six Democrats supporting

the bill.11President Bill Clinton signed DOMA into law on September 21, 1996. The day

before doing so, he declared: I have long opposed governmental recognition of same-

gender marriages and this legislation is consistent with that position. The Act confirms the

right of each state to determine its own policy with respect to same gender marriage and

8Six StatesConnecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermontplusthe District of Columbia, recognize same-sex marriages. Three States, New Jersey, New Mexico, andRhode Island, do not have laws addressing the issue.9

Although Petitioner cites a handful of cases in California and Massachusetts holding DOMAunconstitutional for purposes of Chapter 13 bankruptcy petitions, state-maintained insurance plans,federal marriage-based benefits, (Pet. Br. at 21) none of these cases governs Texas; therefore,DOMA remains in full force within this jurisdiction. Additionally, DOMA has been upheld inWilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005),and in In re Kandu, 315 B.R. 123 (Bankr. W.D.Wash. 2004).10The vote was 342 Yeas to 67 Nays, with 118 Democrats supporting the bill. Roll Call No. 316,104th Cong., 2d Sess. (July 12, 1996).11Record Vote No. 280. 104th Congress, 2d Sess. (Sept. 10, 1996).


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clarifies for purposes of federal law the operative meaning of the terms marriage and

spouse.12

B. Judicial restraint and the principle of separation of powersdictate thatthe people must decide thissignificant question ofpublic policy.

Marriage is one of the most important institutions in our society. It is the basis for

our families, it provides the environment in which we raise our children, and it is the

foundation of our civilization. Our country is currently engaged in a robust debate on

whether the government should sanction same-sex unions. This debate should be allowed to

play out in our democratic institutions and not short-circuited by the courts. Judges serve the

important, yet limited, role of strictly applying the laws enacted by the legislature; if they

overstep this defined role, their acts lack legitimacy and are a threat to democracy.

The principle of separation of powers is especially important in Texas. The Texas

Constitution explicitly states that the governmental powers are divided into three separate

branches.13TEX.CONST. art. II, 1. The "prominence of Texas's constitutional command

has given the separation-of-powers doctrine a special vigor in a number of respects" and

should especially be safeguarded by the state courts. City of Dallas v. Stewart, No. 09-0257,

2011 Tex. LEXIS 517, *30 (Tex.July 1, 2011) (quoting Harold H. Bruff, Separation of Powers

Under the Texas Constitution, 68 Tex. L. Rev. 1337, 1340 (1990)).

12

President William Clinton, I have long opposed Government Recognition of Same-GenderMarriages, in THE COLUMBIA DOCUMENTARY HISTORY OF AMERICAN WOMEN SINCE 1941, 543(Harriet Sigerman ed. 2003).13It states: The powers of the Government of the State of Texas shall be divided into three distinctdepartments, each of which shall be confided to a separate body of magistracy, to wit: Those whichare Legislative to one; those which are Executive to another, and those which are Judicial to another;and no person, or collection of persons, being of one of these departments, shall exercise any powerproperly attached to either of the others, except in the instances herein expressly permitted. TEX.CONST. art. II, 1.


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Both traditional marriage advocates and those who favor same-sex unions recognize

the importance of respecting our constitutional structure and letting the people decide how

to best define one of societys most important social institutions. These advocates, although

they strongly disagree about the definition of marriage, have stated that the definition of

marriage will only gain legitimacy if it is decided upon by the people. In May 2009, nine of

the most prominent gay rights groups14co-authored a policy paper entitled Why the ballot

box and not the courts should be the next step on marriage in California. 15The paper

contended that filing a federal lawsuit to try to win the marriage battle is a temptation we

should resist. The pro-gay marriage groups argued that rather than filing premature

lawsuits, we need to talk to our friends, family [sic] and neighbors, and help them understand

why denial of the freedom to marry is wrong. These organizations rightly recognized that

policy decisions such as defining marriage are only legitimately made through the legislative

branches, and not the courts.

United States Supreme Court Chief Justice John Roberts serves as an excellent

illustrative example for courts in exercising proper deference on the issue of defining

marriage. In Jackson v. District of Columbia Bd. of Elections and Ethics, No. 09A807, 2010 U.S.

LEXIS 2204 (U.S. March 2, 2010), Chief Justice Roberts, in his role as Circuit Justice for the

District of Columbia, declined to issue a stay on the Religious Freedom and Civil Marriage

Equality Amendment Act of 2009, which grants same-sex couples the right to marry in

14The American Civil Liberties Union (ACLU), the Gay and Lesbian Advocates and Defenders(GLAD), Lambda Legal, the National Center for Lesbian Rights (NCLR), Equality Federation,Freedom to Marry, Gay and Lesbian Alliance Against Defamation (GLAAD), the Human RightsCampaign, and the National Gay and Lesbian Task Force.15ACLU, et al., Why the ballot box and the courts should be the next step on marriage in California. May 2009,http://www.aclu.org/pdfs/lgbt/ballot_box_20090527.pdf.


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Washington, D.C. Chief Justice Roberts held that the U.S. Supreme Court must defer to the

lower courts on matters of local concern, while duly noting that the United States Congress

did not act to prevent the Marriage Equality Amendment from going into effect after it was

adopted by the D.C. Council, the peoples elected officials. As one law professor correctly

commented: Does this mean that the Chief supports gay marriage? Well, whether he does

or does not is beside the point. He is using time-honored rules, traditions, and procedures to

make a legal ruling. Its a great example of how a Justice must put aside personal beliefs and

ideas to make a legal decision.16

This Court should affirm the Fifth Court of Appeals decision that properly

overturned such an act of judicial activism to preserve our constitutional principle of

separation of powers.

II. The Texas Family Code unambiguously provides that voidance, not divorce,is the proper remedy for two parties who wish to dissolve an out-of-statemarriage not recognized in Texas.

The Texas Family Code unequivocally states that [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. TEX.FAM.CODE 6.204(b) (emphasis added). Texas law explicitly provides a remedy

for Petitioner; it was unnecessary and improper for the Family District Court to order a

remedy outside of those afforded by Texas law.

Indeed, when Petitioner established residency in Texas, his marriage was null and

void ab initio. It [was] of no effect, whether or not it [had] been decreed invalid by a court of

competent jurisdiction. JOHN D.MONTGOMERY, ET AL.,TEXAS FAMILY LAW:PRACTICE

16Posting of Professor Lisa McElroy to SCOTUSblog, http://www.scotusblog.com/2010/03/last-week-in-plain-english-3/#more-17252 (March 8, 2010, 13:30 EST).


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AND PROCEDURE B1.01[3] (2d ed. 2007). Parties to a void marriage, however, may petition

a court to have their marriage formally declared void. TEX.FAM.CODE 6.307; Carter v.

Green, 64 S.W.2d 1069, 1070-71 (Tex. Civ. App.Texarkana 1933, writ ref.).

The Texas Family Code further provides that Texas courts may not give effect to a

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. T EX.FAM.CODE

6.204(c)(1). By granting a divorce to same-sex couple, undeniably the Family District Court

gave effect to the underlying marriage in violation of Texas law since a court may only

grant a divorce [o]n the petition of either party to a marriage TEX. FAM. CODE 6.001

(emphasis added).

It is well established under Texas law that a court may only grant a divorce if the

underlying marriage is valid and recognized. MONTGOMERY, supra, B1.01[1] (It is

axiomatic that to obtain a decree dissolving a marriage, the petitioner must establish that a

marriage in fact exists.);Ex parte Threet, 333 S.W.2d 361, 363-64 (Tex. 1960); Gray v. Gray,

354 S.W.2d 948 (Civ. App.Houston 1962, writ dismd) (citing Garcia v. Garcia, 232 S.W.2d

782, 783 (Tex. Civ. App.San Antonio 1950, no writ) (A suit for divorce presumes a valid

marriage.). Accordingly, in order to grant a same-sex divorce to Petitioner, the Family

District Court first had to invalidate section 6.204 of the Family Code.

A.Recognizing

thisout-of

-state

marriage, even for the limited purpose ofgranting a divorce,violates Texasspublic policy.The Texas Family Code explicitly states that [a] marriage between persons of the

same sex or a civil union is contrary to the public policy of this state 6.204(b) (emphasis

added); see Larchmont Farms v. Parra, 941 S.W.2d 93, 95 (Tex. 1997) (holding that another


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jurisdictions law will not be enforced if the law is against good morals or natural justice, or

[if] for some other reason the enforcement of it would be prejudicial to the general interests

of our own citizens.) (citation omitted); Vanderbilt Mortg. & Fin., Inc. v. Posey, 146 S.W.3d

302, 316 (Tex. App.Texarkana 2004, no pet.) (stating that [u]nder the public policy

doctrine, Texas will not enforce a foreign law which is contrary to Texas public policy.).

A court cannot give effect to a law recognizing a same-sex marriage since it

contravenes the public policy of Texas. The doctrine [of comity] does not require that a

Texas court enforce a foreign law or give effect to rights arising thereunder if to do so will

contravene the policy of the state or work injury or injustice to a citizen or citizens thereof.

It is said: The most liberal state comity cannot require Texas to enforce the laws of another

when in conflict with its own law.'" Portwood v. Portwood, 109 S.W.2d 515, 523 (Tex. Civ.

App.Eastland 1937, writ dism'd w.o.j.).

In Seth v. Seth, the Fort Worth court of appeals refused to recognize an ex-parte

divorce contracted in India because the harshness of such a result runs so counter to our

notions of good morals and natural justice. 694 S.W. 2d 459, 463 (Tex. App.Fort Worth

1985, no writ). Similarly, because same-sex marriages unmistakably violate Texas public

policy, Texas court cannot recognize a Massachusetts same-sex marriage for any purpose,

including granting a divorce.

B. Voidanceis consistent with theFull Faith and Credit Clause.

The Full Faith and Credit Clause of the United States Constitution is consistent with

this result. U.S. Supreme Court precedent clearly establish[es] that the Full Faith and Credit

Clause does notrequire a State to apply another State's law in violation of its own legitimate


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under DOMA, since a divorce is a right or claim arising from a same-sex marriage granted

out-of-state.

C. Precedent from Texas appellate courts supports voidance, not thegranting of a same-sex divorce.

On several occasions, Texas state courts have addressed the legality of same-sex

relationships in the context of marriage and divorce. In re J.B., 326 S.W.3d 654; State v. Naylor,

330 S.W.3d 434, 442 (Tex. App.Austin 2011, pet. filed); Mireles v. Mireles, No. 01-08-

00499-CV,2009 Tex. App. LEXIS 2225 (Tex. App.Houston [1st Dist.], Apr. 2, 2009, pet.

denied) (mem. op.); Littleton v. Prange, 9 S.W.3d 223 (Tex. App.San Antonio 1999, pet.

denied);Ross v. Goldstein,203 S.W.3d 508 (Tex. App.Houston [14th Dist.] 2006, no pet.).

In every case, with the exception of Naylor, which is currently before this Court, Texas

appellate courts have exercised proper judicial restraint, correctly following Texas law by

refusing to grant same-sex couples rights incident to marriage, including divorce. Moreover,

no Texas court, except theNaylorcourt, found this issue to be particularly difficult in light of

the Texas Family Code and the Texas Constitution.

The Fifth Court of Appeals decision below clearly and correctly held 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. In re J.B., 326 S.W.3d at 670.

Likewise, inMireles v. Mireles, the First Court of Appeals held 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. 2009 Tex. App. LEXIS 2225, at *5. TheMirelescourt held that


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since both parties were female at birth, a purported martial union between them was void,

and a divorce decree could not be issued. Id.

In Littleton v. Prange, the Fourth Court of Appeals held that a marriage between a man

and another man who had been surgically altered to be a woman was invalid as a same-sex

marriage. 9 S.W.3d 223. The court noted that the underlying statutory law is simple enough

and that [o]ur mandate is to interpret the statutes of the state and prior judicial

decisions. Id.at 225, 231.

Finally, in Ross v. Goldstein, the Fourteenth Court of Appeals refused to grant rights to

a same-sex couple under a marriage-like relationship doctrine, stating that [o]ur states

public policy is unambiguous, clear, and controlling on the issue of same-sex relationships.

203 S.W.3d at 514. Despite the petitioners urging, the Fourteenth Court of Appeals properly

rejected the creation of new remedies outside those provided in Texas law, and noted that

both the Texas Family Code and the Texas Constitution, two democratically approved

statements of Texass public policy guide our course on this question. Id.

The Third Court of Appeals stands alone in finding that Texas law allows same-sex

divorce. Although it express[ed] no opinion on the merit of these arguments, it concluded

that there are interpretations of section 6.204 that would allow the trial court to grant the

[same-sex] divorce without finding the statute unconstitutional. Naylor, 330 S.W.3d at 442.

For the reasons outlined in this brief, this conclusion is in direct violation of state law.

Indeed, it is black letter law that [w]hen an impediment exists [to a marriage, like

when the parties are of the same sex], the relationship cannot be recognized as a lawful

marriage in a suit for dissolution or any other proceeding. The remedy of a party to a void


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15

marriage is a suit to declare the marriage void. MONTGOMERY, supra, B1.01[3]; Mireles,

2009 Tex. App. LEXIS 2225, at *5.

Texas law is so unambiguous on this point that a prominent gay rights activist

publicly stated that same-sex couples who get married out of state will not be permitted to

divorce under Texas law. Kenneth D. Upton, Jr., a senior staff attorney with Lambda Legal,

the national LGBT organization, was among LGBT legal experts who warned same-sex

couples from Texas against traveling to California to get married last year, in part because

they wouldnt be able to get divorced [in Texas].17He stated, [w]eve had this happen with

Canadian marriages and [i]t creates all kinds of headaches. I dont think we know the

full reach of the problem were going to see.18Same-sex couples from Texas have been

advised not to wed in other states with the intention of filing lawsuits seeking to have their

marriages recognized here19precisely because Texas law is so clear on this issue.

D. Other state courts have properly declined to grant same-sex divorceswhen the states laws forbid the recognition of same-sex marriages.

States with laws banning the recognition of same-sex marriages have also found the

granting of same-sex divorces to be impermissible. Kern v. Taney, No. 09-10738, 2010 Pa.

Dist. & Cnty. Dec. LEXIS 95 (Pa. County Ct. Mar. 15, 2010); ODarling v. ODarling, No.

106,732, slip op. (Okla. Civ. App. Mar. 11, 2010); Chambers v. Ormiston, 935 A.2d 956 (R.I.

2007).20

17John Wright, Dallas Man files Texas 1st same-sex divorce case, DALLASVOICE(Jan. 22, 2009).18Id.19Id.20Petitioner cites Christiansen v. Christiansen, 253 P.3d 153 (Wyo. 2011), for the proposition that astate can grant a same-sex divorce without violating the state policy against same-sex marriages. (Pet.Br. at 13). The laws of Wyoming are unique in that they explicitly state that foreign marriages valid


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In ODarling v. ODarling, No. 106,732, slip op. (Okla. Civ. App. Mar. 11, 2010), the

Oklahoma Court of Civil Appeals affirmed that a same-sex couple that married in Canada could not

divorce in Oklahoma. The appellate court held that dismissal was required because Appellant

failed to show proof of a valid marriage. Id. at 9. Like Texas, Oklahomas state constitution and its

statutes only recognize traditional marriage, so it would be improper for its courts to grant same-sex

couples a divorce. OKLA.CONST. art. II, 35; 43 OKLA.STAT. 3.1.A Pennsylvania state court similarly held that it lacked subject matter jurisdiction to

grant a same-sex couple a divorce because the state only recognized traditional marriage.

Kern v. Taney, 2010 Pa. Dist. & Cnty. Dec. LEXIS 95.The court specifically held that divorce

is not available for same-sex couples because without a legally recognized marriage, relief

under the Divorce code is simply not available. Id.at *5. Pennsylvania law states that [i]t is

hereby declared to be the strong and longstanding public policy of this Commonwealth that

marriage shall be between one man and one woman. 23 PA.C.S. 1704. That court

recognized that voidance was the appropriate remedy for the parties. It further stated that

[w]hile it is true that Pennsylvania cannot grant [petitioner] a divorce, there is no reason

why she cannot seek relief under 1704, requesting the Court to have her marriage declared

void. Kern, 2010 Pa. Dist. & Cnty. Dec. LEXIS 95 at *24-25. Moreover, the Supreme Court of Rhode Island held that Rhode Island state courts

cannot grant a same-sex divorce since Rhode Island law does not recognize same-sex

marriages. Chambers, 935 A.2d at 967. That court concluded that the word marriage in

the statute which empowers the Family Court to hear and determine all petitions for divorce

by the laws of the country in which contracted are valid in this state. Wyo. Stat. 20-1-111.Because the same-sex marriage at issue in Christiansenwas contracted in Canada, Section 20-1-111controlled. Texas has no similar law on its books recognizing all foreign marriages.


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from the bond of marriage, was not intended by the General Assembly to empower the

Family Court to hear and determine petitions for divorce involving two persons of the

same sex who were purportedly married in another state. Id.

E. Voiding Petitionerspurported marriage does justice for the parties.As discussed above, a void marriage is declared never to have existed. Voidance ends

the parties purported legal relationship, in much the same way that a divorce terminates a

valid marriage. Indeed, it accomplishes exactly what Petitioner seeks: the refutation of any

claim that he is a party to a marriage. It was both unlawful and unnecessary, however, for a

court to grant him a divorce.

When amending the Texas Family Code to include section 6.204, which declares

same-sex marriages void, the Texas Legislature added the following note: The legislature

finds that through the designation of guardians, the appointment of agents, and the use of

private contracts persons may adequately and properly appoint guardians and arrange rights

relating to hospital visitation, property, and the entitlement to proceeds of life insurance

policies without the existence of any legally recognized familial relationship between the

persons. TEX.FAM.CODE 6.204 historical note [Defense of Marriage Act, 78th Leg., Reg.

Sess., ch. 124, 2, 2003 Tex. Gen. Laws 171]. As the Texas Legislature recognized, the Texas

Family Code provides several ways for same-sex couples to both create and end legally

recognized familial relationships. It is unnecessary for a court to craft a remedy outside of

Texas law and contrary to federal law, the Texas Constitution, and established precedent

from the United States Supreme Court and other courts across the country.


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Indeed, the Texas Family Code provides parties to a void marriage with several

remedies for dealing with their terminated relationship. Provisions in the Code provide both

temporary and final relief. For temporary relief, the parties can petition the court to grant

temporary restraining orders, temporary injunctions, and temporary orders. TEX FAM.CODE

6.501, 6.502;Ex parte Ortega,759 S.W.2d 191, 192 (Tex. App.Houston [14th Dist.] 1988,

orig. proceeding). The court may also grant final relief. Generally, the petition to declare a

marriage void can ask for the same relief that can be requested in a suit for divorce:

dissolution of the marriage, reimbursement, a name change, and tort damages. JOAN FOOTE

JENKINS & RANDALL B.WILHITE, OCONNORS TEXAS FAMILY LAW HANDBOOK 256

(2010) (citing TEX.FAM.CODE 3.404(b), which provides that a claim for reimbursement

matures upon the dissolution of marriage, and TEX.FAM.CODE 45.105, which allows a

name change in suits for voidance of a marriage). As evidenced by the foregoing, Texas

lawmakers have provided Petitioner and Texas courts with ample procedures and remedies

in the Texas Family Code.

Finally, even if the Texas Family Code did not provide the desired remedy for the

parties, the judicial branch is not constitutionally authorized to create a remedy; instead, it is

commissioned to faithfully apply the law at hand. Dodd v. United States, 545 U.S. 353, 359-60

(2005) ("It is for Congress, not this Court, to amend the statute if it believes that [the

statutory language leads to undesirable consequences]."); Hartford Underwriters Ins. Co.v.Union

Planters Bank, N. A., 530 U.S. 1, 6 (2000) ("[W]hen the statute's language is plain, the sole

function of the courtsat least where the disposition required by the text is not absurdis

to enforce it according to its terms.") (internal quotation marks omitted) Only the legislative


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branch may craft law in this area, and judges must exercise fidelity to the law it crafts,

something the Family District Court failed to do in this case. In construing a statute, [the

courts] objective is to determine and give effect to the Legislature's intent. City of San

Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003) (citing State v. Gonzalez, 82 S.W.3d 322,

327 (Tex. 2002)).

III. Texasmay constitutionally define the institution ofmarriage.

It is axiomatic that States have the authority to regulate marriage and divorce.

Marriage involves interests of basic importance in our society. It is not surprising, then,

that the States have seen fit to oversee many aspects of that institution. Boddie v. Connecticut,

401 U.S. 371, 385 (1971). Indeed [t]he power of the States over marriage and divorce is, of

course, complete except as limited by specific constitutional provisions. Boddie, 401 U.S. at

385 (Douglas, J., concurring); see alsoLoving v. Virginia, 388 US. 1, 7 (1967) ([M]arriage is a

social relation subject to the States police power). Since there is no fundamental right at

issue and sexual orientation is not a suspect class, rational basis review applies. Texas has a

rational reason to so limit the institution of marriage between one man and one woman;

Texas laws defining marriage are therefore consistent with the United States Constitution.

A. There is no federal constitutional right to same-sex marriage or same-

sex divorce.

Almost forty years ago, the United States Supreme Court confirmed that there is no

fundamental right to same-sex marriage provided by the Due Process Clause, and that

refusing to grant same-sex couples the right to marry does not violate the Equal Protection

Clause. Baker v. Nelson, 409 U.S. 810 (1972). Baker remains controlling precedent, and is

binding on all lower courts, including Texas courts. Hicks v. Miranda, 422 U.S. 332, 343-44


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(1975) ([V]otes to affirm summarily, and to dismiss for want of a substantial federal

question, it hardly needs comment, are votes on the merits of a case,) (quoting Ohio ex rel.

Eaton v. Price, 360 U.S. 246, 247 (1959)). Furthermore, several lower courts have recognized

Bakersprecedential value. E.g.Adams v. Howerton, 673 F.2d 1036, 1039 n.2 (9th Cir. 1982);

McConnell v. Nooner, 547 F.2d 54, 55-56 (8th Cir. 1976); Wilson v. Ake, 354 F. Supp. 2d 1298

(M.D. Fla. 2005); In re Cooper, 187 A.D.2d 128, 134 (N.Y. 1993); Lockyer v. San Francisco, 95

P.3d 459, 488 (Cal. 2004);Morrison v. Sadler, 821 N.E. 2d 15, 19 (Ind. Ct. App. 2005).

The U.S. Supreme Courts decision in Lawrence v. Texasleaves Bakerundisturbed. The

Lawrencemajority clarified that the case before it does not involve whether the government

must give formal recognition to any relationship that homosexual persons seek to enter.

539 U.S. 558, 578 (2003). Furthermore, Justice OConnor in her concurrence clearly stated

that traditional marriage laws are constitutional, even if sodomy laws do not pass

constitutional muster. 539 U.S. at 585 (OConnor, J., concurring). In addition, she

recognized that Texas has a legitimate state interest in preserving and promoting traditional

marriage.

That this law as applied to private, consensual conduct is unconstitutionalunder the Equal Protection Clause does not mean that other lawsdistinguishing between heterosexuals and homosexuals would similarly failunder rational basis review. Texas cannot assert any legitimate state interest here, suchas national security or preserving the traditional institution of marriage. Unlike themoral disapproval of same-sex relationsthe asserted state interest in this

caseother reasons exist to promote the institution of marriage beyond meremoral disapproval of an excluded group.

Id.(emphasis added).

Petitioner posits in his brief that there is a constitutional distinction between the right

to marry and the right to divorce, citing Boddie v. Connecticut, 401 U.S. 371 (1971). Pet. Br. at


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20. The U.S. Supreme Court has never declared that there is a right to a divorce, much less

same-sex divorce. In Boddie v. Connecticut, the U.S. Supreme Court held that it violates due

process for a state to deny access to the courts to dissolve a marriage solely because of ones

inability to pay court fees. Id.at 380-81.The Court refrained, however, from stating there

was a right to divorce. Furthermore,Boddiedid not specifically discuss divorce, but only

the ability to dissolve a marital relationship, which voidance accomplishes. Id. at 374.21

Furthermore, footnote 8, on which Petitioner explicitly relies, only discusses divorce in the

context of marriage and does not indicate that an independent right to divorce exists.22

Additionally, the Supreme Court has cautioned courts against the creation of new

fundamental rights. In Washington v. Glucksberg, the Supreme Court stated:

[W]e have always been reluctant to expand the concept of substantive dueprocess because guideposts for responsible decisionmaking in this uncharteredarea are scarce and open-ended. By extending constitutional protection to anasserted right or liberty interest, we, to a great extent,place the matter outside thearena of public debate and legislative action. We must therefore exercise the utmostcare whenever we are asked to break new ground in this field, lest the liberty

protected by the Due Process Clause be subtly transformed into the policypreferences of the members of this Court[.]

521 U.S. 702 (1997) (internal quotations and citations omitted) (emphasis added). Because

declaring a right to be fundamental essentially removes it from the control of the people into

the hands of judges, courts are instructed to only expand the list of fundamental rights if the

right at issue is deeply rooted in this Nation's history and tradition and implicit in the

concept of ordered liberty such that neither liberty nor justice would exist if they were

22 Petitioner additionally cites Williams v. North Carolina, 325 U.S. 226 (1945), and Ivy v. Ivy, 177S.W.2d 237, 239 (Tex. Civ. App.Texarkana 1943), neither of which states that there is anindependent right to a divorce.


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sacrificed. Id.at 721 (internal quotations and citations omitted). This very high bar ensures

democratic control.

Same-sex marriage and same-sex divorce are neither deeply rooted in our history nor

implicit in the concept of ordered liberty; they are therefore not properly classified as

fundamental rights.23This Court should therefore allow this important issue to remain in the

hands of the people and their elected representatives, where it properly belongs.

B. Laws that differentiate based on sexual orientation are subjectonly torational basis review; they do not trigger heightened scrutiny.

Sexual orientation is not a suspect class. Romer v. Evans, 517 U.S. 620, 631-33 (1996).

Therefore, laws that treat homosexuals differently are subject to rational basis review. In

Romer v. Evans, the U.S. Supreme Court applied rational basis review to a Colorado law

which distinguished citizens based upon their sexual orientation. Id.

The U.S. Courts of Appeals have held that rational basis is the proper level of

scrutiny to apply to such laws. The D.C. Circuit, the 5th Circuit, the 6th Circuit, the 7th

Circuit, the 8th Circuit, and the 10th Circuit all correctly follow Romer in applying rational

basis scrutiny, specifically rejecting the argument that sexual orientation is subject to a

heightened level of scrutiny. Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006);

Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Ben-Shalom v. Marsh, 881 F.2d 454 (7th

Cir. 1989);Equality Foundation of Greater Cincinnati v. City of Cincinnati, 128 F.3d 289 (6th Cir.

23 The first state court decision to legalize same-sex marriage in the history of the United Statesoccurred in 2003. Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). Same-sexmarriage can hardly be said to be deeply rooted in our history and tradition. Furthermore,ordered liberty is not contingent on the recognition of same-sex marriages, as is evidenced by ourlong history of not recognizing such marriages and enjoying ordered liberty. But see Perry v.Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010) (finding that same-sex marriage is a fundamentalright).


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1997);Natl Gay Task Force v. Bd. of Educ. Of City of Oklahoma City, 729 F.2d 1270 (10th Cir.

1984); Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987); Steffan v. Perry, 41 F.3d 677 (D.C. Cir.

1994); see alsoWilson, 354 F. Supp. 2d at 1289.24

C. Other courts have applied rational basis review when upholding astates ability to define the institution of marriage.

In Hernandez v. Robles, the New York Court of Appeals, that states highest court, held

that its State Legislature could limit marriage to opposite-sex couples without running afoul

of the United States Constitution. Hernandez v. Robles, 855 N.E.2d1 (N.Y. 2006). Importantly,

the appellate court noted that the restriction of marriage to opposite-sex couples is subject

only to rational basis scrutiny. Id. at 7. The New York court further found that the

legislature could rationally limit the institution in this manner because of the undisputed

assumption that marriage is important to the welfare of children. Id.

The New York courts opinion rested upon two premises, each of which derive from

the above assumption. First, for the welfare of children, it is more important to promote

stability, and to avoid instability, in opposite-sex than in same-sex relationships, and,

secondly, it is better, other things being equal, for children to grow up with both a mother

and a father. Id.The court recognized that it is obvious that there are exceptions to this

general rule but the legislature could find that the general rule will usually hold. Id.25

24Only the Ninth Circuit has held that sexual orientation is suspect class. Watkins v. U.S. Army, 875F.2d 699 (9th Cir. 1989). A year later, however, the Ninth Circuit reversed its position holding thatsexual orientation is nota suspect class. High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563(9th Cir. 1990).

25Although the New York legislature decided this year to recognize same-sex marriages, this has nobearing on the appropriate level of scrutiny to apply to laws affecting homosexuals.


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New York does not stand alone. Numerous other courts across the country decided

that similar marriage laws are legitimate, and scrutinized such laws using rational basis review.

E.g.Citizens for Equal Prot., 455 F.3d 859; Wilson, 354 F. Supp. 2d 1298; Conaway v. Deane, 932

A.2d 571 (Md. 2007); Andersen v. King County, 138 P.3d 963 (Wash. 2006); Morrison, 821

N.E.2d 15; Standhardt v. Superior Ct. of Ariz., 77 P.3d 451 (Ariz. Ct. App. 2003); but seePerry,

704 F. Supp. 2d 921 (finding that laws defining marriage do not survive rational basis review).

D. Texas has a rational reason to limit the institution of marriage to theunion ofone man and onewoman.

A law survives rational basis review if any state of facts reasonably may be

conceived to justify it. McGowan v. Maryland, 366 U.S. 420, 425-26 (1961). Additionally,

Petitioner must carry the burden of showing that [the challenged law] does not rest on any

reasonable basis, but is essentially arbitrary. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61,

78-79 (1911). Texas has an important, and far from arbitrary, reason to protect the

fundamental institution of marriage. Accordingly, section 6.204 survives rational basis review.

Marriage is societys most important social institution. It has a basic position in

this societys hierarchy of values. Boddie, 401 U.S. at 374. Traditional marriage is

fundamental to our very existence and survival since it naturally creates the best

environment for raising children. Loving, 388 U.S. at 12 (citing Skinner v. Oklahoma, 316 U.S.

535, 541 (1942)); see alsoMaynard v. Hill,125 U.S. 190, 211 (1888) (stating that marriage is

the foundation of the family and of society, without which there would be neither

civilization nor progress); Zablocki v. Redhail, 434 U.S. 374, 384 (1977).


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Given the importance of the institution of marriage, it is rational that Texas would

safeguard it through its laws. The legislature clearly stated its goals for enacting legislation

protecting this valued institution:

A traditional marriage consisting of a man and a woman is the basis for ahealthy, successful, stable environment for children. It is the surest way for afamily to enjoy good health, avoid poverty, and contribute to their community.

The sanctity of marriage is fundamental to the strength of Texas families, andthe state should ensure that no court decision could undermine thisfundamental value.

HOUSE RESEARCH ORGANIZATION, H.J.R. 6 Bill Analysis, 79th Leg., Reg. Sess., April 25,

2005.

There is a wealth of studies across a broad array of academic disciplinesincluding

psychology, sociology, economics, and medicineaffirming the findings of the Texas

Legislature.26These studies have confirmed a societal understanding that traditional marriage

is essential for healthy children, adults, and communities, and that alternative family forms

do not produce the same benefit. Indeed, [m]arriage [as traditionally understood, between

one man and one woman] is an important social good associated with an impressively broad

array of positive outcomes for children and adults alike. [W]hether American Society

succeeds or fails in building a healthy marriage culture is clearly a matter of legitimate

concern.27Traditional marriage, the union between a man and a woman, is uniquely

26See, e.g., WILLIAMJ.DOHERTY ET AL.,WHY MARRIAGE MATTERS:TWENTY ONE CONCLUSIONSFROM THE SOCIAL SCIENCES(Institute for American Values 2002); MAGGIE GALLAGHER &LINDAJ.WAITE,THE CASE FOR MARRIAGE (Broadway Books 2000); TEXAS CONSERVATIVE COALITIONRESEARCH INSTITUTE, The Texas Families First (Phase II) Task Report: Saving Money, Saving Families(2007); Patrick Fagan et al., The Positive Effect of Marriage: Economic effects of marriage on children, TheHeritage Foundation.27WILLIAMJ.DOHERTY ET AL.,WHY MARRIAGE MATTERS:TWENTY ONE CONCLUSIONS FROM THESOCIAL SCIENCES6 (Institute for American Values 2002).


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beneficial for society because it naturally provides the environment for procreation and

unites a child with his or her biological mother and father.

Children do substantially better when raised by their married, biological parents. Both

mother and father play a crucial role in child rearing and contribute to the growth of a

healthy child.28Same-sex marriages will always fall short because they lack the influence of

both genders. Indeed, research has consistently shown that children raised by same-sex

parents have similar outcomes to children raised by divorced heterosexual parents in terms

of school performance, behavioral problems, emotional problems, early pregnancy, and

difficulty finding employment.29It is well documented that children of divorced parents are

disadvantaged when compared to children of married parents.30These studies evidence that

children raised by same-sex parents are worse off than children raised by married,

heterosexual parents. From this, it is reasonable to conclude that the best family structure is

the traditional one, the permanent union of one man and one woman.

There are rational, legitimate reasons for the State of Texas to give legal protection to

traditional marriage but not to same-sex relationships, namely that traditional marriage has

measurable and substantial benefits for children, families, and communities that are not

present in other family forms. Texass laws defining marriage are thus constitutional.

28Richard N. Atkins, Discovering Daddy: The Mothers Role, inFATHER AND CHILD:DEVELOPMENTALAND CLINICAL PERSPECTIVES 139, 144 (Stanley H. Cath et al., eds. 1982).29Mary Parke,Are married parents really better for children? What Research Says About the Effects of FamilyStructure on Child Well-Being, CENTER FOR LAW AND SOCIAL POLICY BRIEFno. 3, 5-6 (2003).30Id.at 3.


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CONCLUSION

The U.S. Supreme Court declared long ago, and has since reaffirmed, that a State "has

absolute right to prescribe the conditions upon which the marriage relation between its own

citizens shall be created, and the causes for which it may be dissolved." Sosna v. Iowa, 419 U.S.

393, 404 (1975) (quoting Pennoyer v. Neff, 95 U.S. 714, 734-35 (1878)). Consistent with the

U.S. Constitution, Texas may protect traditional marriage between a man and a woman,

refuse to recognize out of-state marriages that violate its pubic policy, and provide that

invalid marriages such as those between persons of the same sex are void.

This Court should affirm the decision of the Fifth Court of Appeals holding that

Texas courts lack jurisdiction grant same-sex divorces and that Texas laws defining marriage

are constitutional.

Respectfully submitted,

_/s/ Kelly J. Shackelford________

Kelly J. ShackelfordTexas State Bar No. 18070950Jeffrey C. MateerTexas State Bar No. 13185320Hiram S. Sasser, III

Texas State Bar No. 24039157Erin Leu

Texas State Bar No. 24070138

LIBERTY INSTITUTE2001 W. Plano Parkway Suite 1600Plano, Texas 75075

Tel. (972) 941-4444Fax (972) 423-6162

Counsel forAmici Curiae


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CERTIFICATE OFSERVICEI certify that on ______ __, 2011, true and correct copies of this brief were served by

certified U.S. mail, return receipt requested, to:

Greg AbbottDaniel T. HodgeBill Cobb

Jonathan F. MitchellJames D. BlacklockOffice of the Attorney GeneralP.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

James J. ScheskeJason P. SteedAkin Gump Strauss Hauer Feld LLP300 West 6th StreetSuite 1900

Austin, Texas 78701

_/s/ Jeffrey C. Mateer__________Jeffrey C. Mateer

In the Marriage of JB and HB: Amicus Brief – Rep. Chisum & Hon. Staples - 12062011

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Transcript of In the Marriage of JB and HB: Amicus Brief – Rep. Chisum & Hon. Staples - 12062011