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.
The appellate court held that in
Texas same-sex marriages are void, meaning that they have no legal effect.
This case was consolidated by
the Texas Supreme Court with
State v. Naylor
and was argued to the Supreme Court on November 5, 2013.
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.”
On March 21,
2011, the State filed a petition for review
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
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
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
He found that the entities in question had essentially created a “legal status” of same-
sex domestic partnership in violation of the constitutional provision.
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.
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