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court also ruled that, because of Family Code Section 6.204, the trial court had no subject matter jurisdiction

over the purported divorce proceeding involving a same-sex marriage.

22

The appellate court held that in

Texas same-sex marriages are void, meaning that they have no legal effect.

23

This case was consolidated by

the Texas Supreme Court with

State v. Naylor

24

and was argued to the Supreme Court on November 5, 2013.

In

State v. Naylor

, the Austin Court of Appeals ruled that the State of Texas did not have standing to appeal

a divorce between two women who were legally married in Massachusetts, that was granted by a Travis

County District Judge based on an agreement between the parties. The Court also said that Texas law can

be interpreted “in a manner that would allow the trial court to grant a divorce in this case.”

25

On March 21,

2011, the State filed a petition for review

26

in the Texas Supreme Court, and on March 25, 2011 the State

filed a petition for mandamus as well. Briefs were filed, including numerous amicus curiae briefs. On July

3, 2013, the Clerk of the Supreme Court asked the parties to submit additional briefs on the impact if any

of the U.S. Supreme Court’s decision in U.S. v. Windsor. On Friday, August 23, 2013, two years and five

months after the case was filed, the Supreme Court granted review. This appeal and mandamus were both

consolidated with the appeal in

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

and they were all argued on

November 5, 2013.

Texas Attorney General Opinions

On December 16, 1999, Texas Attorney General John Cornyn (now a U.S. Senator) issued an AG’s

Opinion that county clerks were not required or permitted to accept for filing a “declaration of domestic

partnership.”

27

On October 27, 2005, Texas Attorney General Abbott sent a letter to a Texas Senator and a

State Representative, on the subject of the then-proposed constitutional amendment relating to same-sex

marriage. General Abbott said that the proposed amendment “would in fact safeguard traditional marriage

in Texas.”

On November 2, 2012, State Senator Dan Patrick sent a letter to Attorney General Abbott asking about the

legality of certain government entities offering benefits to “domestic partners” of government employees.

Senator Patrick listed El Paso County and Travis County, and the cities of Fort Worth, Austin, San Antonio,

and El Paso. Several school districts had also had adopted similar policies. On April 29, 2013, Texas Attorney

General Abbott issued Opinion GA-1003, which concluded that Texas cities, counties and school districts

could not lawfully offer insurance benefits to domestic partners as part of their employee benefit programs.

General Abbott noted that Tex. Const. Art. I § 32(b) was held to be “unambiguous, clear, and controlling” in

Ross v. Goldstein

.

28

He found that the entities in question had essentially created a “legal status” of same-

sex domestic partnership in violation of the constitutional provision.

29

In mid-2013, the City of San Antonio

adopted a nondiscrimination policy against GLBT. The AG objected but did not sue over the ordinance.

On February 4, 2014, Bexar County adopted a policy extending health insurance benefits to unmarried

companions of employees, with no specification of gender.

Conclusion

The Fifth Circuit may rule before or during the summer on whether Texas law banning same-sex marriage

is unconstitutional. If they find it unconstitutional, then Texas law is unenforceable unless the Supreme

Court overturns that decision. If the Fifth Circuit upholds Texas law, then Texas will await further action

from the U.S. Supreme Court. The U.S. Supreme Court is expected to rule before September on whether the

14th Amendment requires all states to grant same-sex marriages and recognize same-sex marriages from

elsewhere. If the Supreme Court invalidates all state laws against same-sex marriage, then Texas’ existing

laws cannot be enforced. If it says that the validity of marriage is a question of state law, then states will have

a complicated layer of choice-of-law rules, and alternate theories of recovery between same-sex couples, to

deal with in Texas. I plan to address the outcome and consequences of both of these cases in a follow-up

article for the Winter 2016 Issue of

In Chambers

.

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