Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review
This November, the Texas Supreme Court will hear oral arguments in a suit to dissolve a same-sex marriage performed outside the state, and will be deciding two important issues: (1) whether Texas courts have jurisdiction to hear such suit, and (2) whether Texas laws prohibiting same-sex marriage are constitutional. The Court’s decision on these issues could heavily influence similar litigation across the United States. Since the Court is likely to uphold the Texas laws at issue, their decision will not bode well for couples seeking marriage equality in a state with similar laws.
The Supreme Court waded into the gay marriage debate this past summer in the landmark cases of Hollingsworth v. Perry and United States v. Windsor. Hollingsworth has had little immediate effect on American jurisprudence, given the Court’s decision to dismiss the appeal on standing issues rather than issue a decision on the merits. However, the effects of Windsor have been immediate and far-reaching. Per Justice Kennedy, the Court reasoned, “[the Defense of Marriage Act’s] principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency.” This momentous decision has renewed litigation over the issue of gay marriage in the United States and spurred the need for new governmental policies towards same-sex partners.
One significant area of litigation is divorce suits filed by same-sex couples legally married in one state but residing in a state that does not recognize same-sex marriages. A case that has the potential to be a bellwether suit for same-sex rights is the dissolution of the marriage of J.B. and H.B.
The Road to the Texas High Court
J.B. and H.B. wed in Massachusetts in 2006. They then moved to Texas, where they filed for divorce in 2009. The divorce was granted by Judge Tena Callahan of the 302nd Judicial District in Dallas in 2010. However, Judge Callahan’s order did not merely dissolve the legal union of J.B. and H.B. Judge Callahan first had to confirm the court’s subject matter jurisdiction over the case, because Texas law prohibits the State from “giving effect” to same-sex unions, meaning same-sex unions may not enjoy any recognition under Texas law. Judge Callahan invalidated the “give effect” provision, § 6.204 of the Texas Family Code, and Article 1, § 32(a) of the Texas Constitution, which limits marriage in Texas to unions of one man and one woman under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In response to these sweeping holdings by the trial court, the Attorney General sought to intervene in the case to defend the invalidated Texas laws, but Judge Callahan denied the intervention.
Subsequently, the Attorney General appealed the District Court’s denial of intervention and the Court’s rulings. The Court of Appeals for the Fifth District of Texas reversed Judge Callahan’s rulings and allowed the Attorney General to intervene. The Court held that district courts in Texas “do not have subject-matter jurisdiction to hear a same-sex divorce case,” and furthermore that “Texas’s laws compelling this result do not violate the Equal Protection Clause of the Fourteenth Amendment.” J.B. then appealed to the Texas Supreme Court, which accepted the petition for review and scheduled oral argument for November. The two issues on appeal before the Court are first, whether the trial court possessed subject matter jurisdiction to hear the divorce proceeding, and second, whether Texas’s laws limiting marriage to a union of one man and one woman violate the Fourteenth Amendment’s Equal Protection Clause.
The Court’s Options after November
The novelty of the J.B. case and the issues it presents make it a landmark one in Texan jurisprudence. There is nothing landmark about the Fifth District Appellate Court’s ruling, but because a trial court judge struck down a portion of Texas state law and the Texas Supreme Court has taken up the suit, the case should receive not only headlines, but national attention.
At this juncture, the Texas Supreme Court has several legitimate options for the disposition of this case. In the first place, the Court simply could declare the case jurisdictionally defective due to Texas law, declare the trial court unable to hear it, and end the litigation. The State of Texas has argued for this in its briefs, namely that the legislative intent behind § 6.204 of the Texas Code provides a jurisdictional bar to hearing same-sex divorce suits because the legal right to bring a suit for the dissolution of a marriage stems from the legal rights conferred by the marriage itself. However, given the length of time the case has taken to reach the high court and the amount of litigation that has gone into it, such a ruling is unlikely. This ruling is also unlikely since the appellate court specifically upheld the section of the Texas Code at issue.
The Court could go much further and issue a broad ruling affirming the appellate court and upholding Texas’s laws by emphatically declaring that gays and lesbians are not a suspect class under the Fourteenth Amendment. J.B. has argued that to interpret the statute that way would implicate the portion of Windsor that struck down DOMA on the basis that it singled out same-sex marriages for second-class treatment. Although counsel for J.B. has argued that the Court should avoid Windsor except on Equal Protection Grounds, the Court is unlikely to rule this way. Windsor does give the Texas high court room to extend equal rights to gays and lesbians. However, the Court is more likely to rely on the canon of avoidance because the State’s argument that the Windsor ruling is limited to the federal government is simply too sound and too enticing.
On the opposite end of the spectrum, the Court could maneuver around the jurisdictional issue by construing Texas Code narrowly and allowing the divorce to proceed, but limiting its holding to same-sex divorces, essentially providing an alternative to voiding same-sex marriages in Texas. This is the most equitable option because it would allow the petitioner to divorce in Texas, but not create new protections for gays and lesbians. However, it would involve reading § 6.204 so as to render “divorce” a legal proceeding that does not “give effect to” a same-sex marriage. This is not mere lexicological sophistry. It is a serious question of statutory interpretation that the Court ought to answer in its opinion. J.B. has, of course, provided an answer to this in his initial brief to the Texas Supreme Court when he differentiated between a State act like granting health benefits that would “give effect” to his union with H.B., and a State act like divorce that is merely an act of “disunion.” J.B. has therefore provided a way for the Texas Court to rule in his favor while not overturning any Texas law.
Finally and least likely, the Court could use the recent case of Windsor to strike down § 6.204 of the Texas Code and Article 1, § 32 of the Texas Constitution as violative of the Fourteenth Amendment’s Equal Protection Clause. This would create a substantial federal question that the State would indubitably appeal to the United States Supreme Court. Furthermore, it is unlikely that a state supreme court would overturn the state constitution, simply as a matter of course. Although the Attorney General of Texas acknowledged the validity of J.B. and H.B.’s marriage under Massachusetts law, Texas has fought to uphold its vision of marriage and the Court will likely do so.
Finally, the reality of this case involves its politics as well. Given the recent change to an exclusively elected Republican judiciary in a state that leans heavily Republican in general, it is unlikely that the elected justices are going to strike down a politicized portion of the State Constitution and a statute enforcing it, only to risk losing their seats on the bench when they are up for re-election in November 2014.
Although it may come as a surprise that a divorce case presents a chance to overturn the prohibition on same-sex marriage in Texas, after Windsor it is not quite so farfetched to imagine a court striking down such prohibitions under an Equal Protection theory. Accordingly, the Texas Supreme Court has an opportunity to embrace the spirit of Windsor and allow same-sex marriages in Texas, but will likely uphold Texas’s laws and deny J.B. and H.B.’s divorce.
 Hollingsworth v. Perry, 133 S.Ct. 2652; United States v. Windsor, 133 S.Ct. 2675, (2013).
 Hollingsworth, supra note 1, at 2659.
 Windsor, supra note 1, at 2694.
 Such cases abound. See, e.g., Bradacs v. Haley, 3:13-cv-02351-JFA (D. S.C. Aug. 28, 2013) (South Carolina State Highway Patrol officer seeking to overturn the state’s constitutional amendment banning same-sex marriage). See also, http://www.wistv.com/story/23318633/meet-the-couple-challenging-scs-gay-marriage-ban.
 For example, just last month the Pentagon announced that it was implementing a plan to extend military benefits to same-sex spouses, including 10 days of leave to travel to a state where same-sex marriage is legal in order to marry. See, http://usnews.nbcnews.com/_news/2013/08/14/20024025-pentagon-announces-same-sex-spouse-benefits-for-military-couples?lite.
 The Massachusetts Supreme Judicial Court legalized same-sex marriages in 2003 in Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941 (2003) (holding Massachusetts marriage statute prohibiting same-sex marriages unconstitutional under the liberty and equality guarantees of the Massachusetts constitution).
 In re Marriage of J.B. and H.B., No. DF-09-1074 (Tex. 302d Dist. Ct. Oct. 1, 2009).
 Tex. Fam. Code Ann. § 6-204(c).
 Tex. Const. art. I, § 32 declares: “Marriage in this state shall consist only of the union of one man and one woman.” Section 6.204 of Texas Family Code proclaims: “The state or an agency or political subdivision of the state 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 . . . .”
 In re J.B., 326 S.W.3d 654, 659 (2010), reconsideration denied, In re Marriage of J.B. & H.B., 326 S.W.3d 654 (2010) (en banc), 2010 Tex. App. LEXIS 9635, reh’g denied, In re Marriage of J.B. & H.B., 2010 Tex. App. LEXIS 10060, petition for review granted, In re Marriage of J.B., 2013 Tex. LEXIS 608 (Aug. 23, 2013).
 Id. at 660.
 Id. at 659.
 In re Marriage of J.B., 2013 Tex. LEXIS 608 (Aug. 23, 2013).
 Over the past three years, a flurry of briefs has been filed with the Texas Supreme Court. The case was briefed for the Court on the merits in 2011 and again in the wake of the Windsor decision. For a timeline of the case, see http://www.search.txcourts.gov/Case.aspx?cn=11-0024.
 Respondent’s Brief on the Merits at 11, J.B. v. The State of Texas, No. 05-09-01170-CV (2011).
 Petitioner’s Supplemental Brief on Windsor and Perry at 1 to 3, J.B. v. The State of Texas, No. 05-09-01170-CV (2011). See also, Petitioner’s Supplemental Reply on Windsor and Perry at 1, J.B. v. The State of Texas, No. 05-09-01170-CV (2011).
 Petitioner’s Brief on the Merits at 9, J.B. v. The State of Texas, No. 05-09-01170-CV (2011).