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No. 11-0024
In theSupreme Court of Texas
IN THE MATTER OF THE MARRIAGE OF J.B.AND H.B.
On Petition for Review from the
Fifth Court of Appeals at Dallas, Texas
SUPPLEMENTAL RESPONSE BRIEFADDRESSINGRECENT U.S.SUPREME COURT DECISIONS
GREGABBOTT
Attorney General of Texas
DANIEL T.HODGE
First Assistant Attorney
General
JONATHAN F.MITCHELL
Solicitor General
JAMES D.BLACKLOCK
Deputy Attorney General for
Legal CounselState Bar No. 24050296
OFFICE OF THEATTORNEY GENERAL
P.O. Box 12548 (MC 001)
Austin, Texas 78711-2548
Tel.: (512) 936-8160
Fax: (512) [email protected]
COUNSEL FOR RESPONDENTTHE STATE OF TEXAS
FILEDIN THE SUPREME COF TEXAS13 July 29 P4:50 BLAKE A HAWTHOCLERK
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TABLE OF CONTENTS
Index of Authorities .................................................................................. iiiIssues Presented ......................................................................................... vSummary of Argument ............................................................................... 1
Argument .................................................................................................... 2I. Texas Law Prohibits Same-Sex Divorce; Only By
Holding Texas Law Unconstitutional Can This Court
Provide J.B. the Relief He Seeks. ............................................ 2II. United States v. WindsorHas No Direct Impact on This
Case; If Anything, it Reaffirms the States Authority To
Define and Regulate Marriage Within Their Borders. .......... 5III. J.B. Misinterprets Windsors Equal Protection and Due
Process Analysis. .................................................................... 11IV. Hollingsworth v. PerryDoes Not Impact This Case. ............ 20
Prayer ........................................................................................................ 22Certificate of Service ................................................................................ 24Certificate of Compliance ......................................................................... 25
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iii
INDEX OFAUTHORITIES
CasesBexar Cnty. Sheriffs Civil Serv. Commn v. Davis,
802 S.W.2d 659 (Tex. 1990) ............................................................. 10
Camreta v. Greene,
131 S. Ct. 2020 (2011) ..................................................................... 21
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) ........................................................... 2, 20, 21
Lawrence v. Texas,
539 U.S. 558 (2003) ........................................................................ 14
Littleton v. Prange,
9 S.W.3d 223 (Tex. App.San Antonio 1999,
pet. denied) ........................................................................................ 8
Minnesota v. Clover Leaf Creamery Co.,
449 U.S. 456 (1981). ........................................................................ 10
Nevada v. Hall,
440 U.S. 410 (1979) ......................................................................... 19
Sosna v. Iowa,
419 U.S. 393 (1975) ........................................................................... 6
United States v. Windsor,
133 S. Ct. 2675 (2013) ............................................................. passim
Williams v. North Carolina,
317 U.S. 287 (1942). .......................................................................... 7
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iv
Statutes1 U.S.C. 7 ....................................................................................... passim
Mass. Gen. Laws ch. 207, 11 (repealed 2008) ....................................... 19
Mass. Gen. Laws ch. 207, 13 ................................................................. 19
TEX.FAM.CODE 6.001 .............................................................................. 3
TEX.FAM.CODE 6.204 ............................................................ 3, 4, 8, 9, 12
TEX.FAM.CODE 6.204(b) .............................................................. 3, 11, 15
TEX.FAM.CODE 6.204(c)(1). ..................................................................... 3
TEX.FAM.CODE 6.204(c)(2) .................................................................. 3, 4
TEX.FAM.CODE 6.307 .......................................................................... 3, 4
Other Authorities
18 J. Moore et al., Moores Federal Practice 134.02[1][d](3d ed. 2011) ..................................................................................... 21
HOUSE RESEARCH ORGANIZATION, H.J.R. 6 Bill
Analysis, 79th Leg., R.S. (April 25, 2005). ..................................... 14
Constitutional Provisions
TEX.CONST. art. I, 32 ......................................................................... 8, 12
TEX.CONST. art. I, 32(a)....................................................................... 3, 4
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ISSUES PRESENTED
1. Does a Texas court have jurisdiction over a divorce suitinvolving a same-sex couple who obtained a marriage license
in another state?
2. Does the U.S. Constitution permit Texas to define the legalinstitution of marriage as the union of one man and one
woman, and to provide the rights of marriagewhich
include divorceonly to those legally recognized
relationships?
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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 the
Fifth Court of Appeals at Dallas, Texas
SUPPLEMENTAL RESPONSE BRIEF REGARDINGRECENT U.S.SUPREME COURT DECISIONS
TO THE HONORABLE SUPREME COURT OF TEXAS:
As directed by the Court, Respondent the State of Texas
respectfully submits this brief in response to the supplemental brief
filed by Petitioner J.B. on July 18, 2013.
SUMMARY OFARGUMENT
The Texas Constitution and Family Code prohibit a Texas court
from treating a same-sex couple like a validly married couple, whether
in a divorce suit or in any other context. As a result, the only way this
Court could provide the relief J.B. seeks is by refusing to enforce Texas
law on grounds of unconstitutionality. If the Court takes this case, it
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cannot, as J.B. suggests, decline to reach the merits of J.B.s
constitutional attack on Texass marriage laws.
Those marriage laws are a valid exercise of the States well-
recognized authority to define marriage and to decline recognition to
out-of-state marriages that violate the Texass public policy. United
States v. Windsor does not alter the outcome. Its holding and its
reasoning apply only to the federal government, not the States. J.B.s
expansive reading of Windsor ignores large portions of the Supreme
Courts decision, which affirms the States traditional authority to
define and regulate marriage within their borders. Projecting
Massachusetts marriage policies into Texas, as J.B. urges, would
contradict the very principles of federalism on which Windsor relies.
Hollingsworth v. Perryis irrelevant to this case.
ARGUMENT
I. TEXAS LAW PROHIBITS SAME-SEX DIVORCE; ONLY BY HOLDINGTEXAS LAW UNCONSTITUTIONAL CAN THIS COURT PROVIDE J.B.
THE RELIEF HE SEEKS.
J.B. asks this Court to avoid ruling on his constitutional
arguments by holding that Texas law allows courts to grant divorces to
same-sex couples. To reach that result, this Court would have to ignore
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or rewrite article I, section 32(a) of the Texas Constitution and section
6.204 of the Texas Family Code. There is no ambiguity in these laws.
Their text is not open to interpretation. Texas courts cannot grant J.B.
a divorce because:
1) He is not married. TEX.CONST. art. I, 32(a) (Marriage
in this state shall consist only of the union of one man and
one woman.) Only married parties can divorce. TEX.FAM.
CODE 6.001.
2) The Family Code declares his Massachusetts marriagevoid, id. 6.204(b), which reinforces that he is not married in
this State and so cannot divorce. Void marriages can be the
subject of a suit to declare the marriage void, but not a suit
for divorce. Id. 6.307.
3) The Family Code prohibits courts from giving effect to his
Massachusetts marriage license, which is a public act [or]
record . . . that creates, recognizes or validates a marriage
between persons of the same sex . . . in any otherjurisdiction. Id. 6.204(c)(1).
4) Providing J.B. the legal protections and remedies of
divorce would give effect to a right or claim to any legal
protection, benefit, or responsibility asserted as a result of a
marriage between persons of the same sex . . . in any other
jurisdiction, in violation of section 6.204(c)(2) of the Family
Code. Id. 6.204(c)(2).
Texas voters and their elected representatives could not have made
their will clearer. J.B. and H.B. are not married in Texas, and courts
may not treat them as if they are married. As a result, they cannot get
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divorced. See States Br. at 4-10. Nor can a Texas court exercise
jurisdiction over a petition for same-sex divorce. Id.at 10-19.
J.B.s statutory-construction arguments never deal with the text of
the law.1 Instead, J.B.s lawyers sophistically claim that he is not
asking the court to give effect to a claim to any legal protection,
benefit, or responsibility resulting from his marriage; he is asking only
to dissolve his marriage. J.B.s Supp. Br. at 5. But if J.B. were really
just interested in dissolving his Massachusetts marriage, he would
dismiss his suit for divorce and file a suit to declare the marriage void,
which is the dissolution mechanism Texas law provides for void
marriages. SeeTEX.FAM.CODE 6.307. Of course, J.B. is not asking
only to dissolve his marriage. He wants a court to enforce the marital
protection[s], benefit[s and] responsibilit[ies] that courts enforce for
validly married parties in a typical divorce suit. Id. 6.204(c)(2); see
States Br. at 11-13 (describing many substantive and procedural rights
1 J.B. cites several cases in which this Court has held that, when faced with
multiple interpretations of a statute, the Court should choose the interpretation
that does not render the statute constitutionally suspect. J.B.s Supp. Br. at 5-6.
There are not multiple interpretations of article I, section 32(a) of the Texas
Constitution or section 6.204 of the Family Code. And in any event, the
unambiguous text of these laws does not render them constitutionally suspect. The
cases J.B. cites have no application here.
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available to married parties in divorce suits). In short, he wants Texas
courts to treat his void marriage just like they would treat the legally
valid union of one man and one woman. That is exactly what the Texas
Constitution and Family Code prohibit.
Because Texas law bars J.B.s claim, the only way he can obtain a
divorce is to convince the Court that the U.S. Constitution prevents the
Court from enforcing Texas law. Thus, in order to fully dispose of this
case, the Court should address and reject J.B.s constitutional attack on
the laws that bar his divorce claim.
II. UNITED STATES V. WINDSOR HAS NO DIRECT IMPACT ON THISCASE; IF ANYTHING, IT REAFFIRMS THE STATESAUTHORITY TO
DEFINE AND REGULATE MARRIAGEWITHIN THEIR BORDERS.
J.B. characterizes the holding of Windsor as follows:
[C]onstitutional principles of due process and equal protection are
violated when legally created same-sex marriages are treated
unequally. J.B.s Supp. Br. at 6. Nothing like that statement appears
anywhere in Windsor. What Windsor says is that Section 3 of the
federal Defense of Marriage Act, which establishes a federal definition
of marriage, violates basic due process and equal protection principles
applicable to the Federal Government. United States v. Windsor,133 S.
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Ct. 2675, 2693 (2013) (emphasis added). J.B.s expansive reading of
Windsor ignores and contradicts one of the key bases for the Courts
decisions: the States traditional authority in our constitutional system
to define and regulate marriage for themselves. Id. at 2689-2696.
According to the majority, regulation of domestic relations is an area
that has long been regarded as a virtually exclusive province of the
States. Id. at 2691 (citing Sosna v. Iowa, 419 U.S. 393, 404 (1975)).
The definition of marriage is the foundation of the States broader
authority to regulate the subject of domestic relations. Id.
These principles lead the Windsor majority to view Section 3s
federal definition of marriage as an unusual deviation from the
federal governments usual tradition of recognizing and accepting state
definitions of marriage. Id. at 2693. This unusual character of
Section 3 caused the majority to use careful consideration in
examining its constitutionality. Id. at 2692. The majority ultimately
concluded that Section 3 is unconstitutional because the federal
government had no reasonaside from what the Court considered a
desire to demean same-sex couplesto get into the marriage-defining
business. Id. at 2695.
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Unlike the federal government, Texas as a sovereign has a
rightful and legitimate concern in the marital status of persons
domiciled within its borders. Id. at 2691 (quoting Williams v. North
Carolina, 317 U.S. 287, 298 (1942)). The Windsormajority looks with
favor on a States engagement in a statewide deliberative process that
enable[s] its citizens to discuss and weigh arguments for and against
same-sex marriage. Id. at 2689. The Court described New Yorks
engagement in such a political process as follows:
These actions were without doubt a proper exercise of its
sovereign authority within our federal system, all in the way
that the Framers of the Constitution intended. The
dynamics of state government in the federal system are to
allow the formation of consensus respecting the way the
members of a discrete community treat each other in their
daily contact and constant interaction with each other.
Id. at 2692. The same could be said of Texass actions in 2003 and 2005,
when its citizens and legislators chose to codify the States historical
understanding of the marriage relationship. Nothing in Windsor
supports J.Bs rule that a States proper exercise of its sovereign
authority within our federal system must be commandeered by the
courts when it does not reach results that favor same-sex marriage.
Indeed, a court-imposed constitutional obligation to recognize same-sex
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marriages would short-circuit what the Supreme Court held up as an
important political process within the States, trampling on core values
of federalism undergirding the Windsor decision.
It was Section 3s departure from the traditional mechanisms
through which marriage policy is creatednot the substance of its
definition of marriagethat singled out Section 3 for constitutional
scrutiny. The Court criticized Section 3 for its lack of an identified
connection to any particular area of federal law. Id. at 2694. Unlike
federal law, however, Texas law has always been concerned with the
regulation of domestic relations, including the definition of marriage
and the extent to which the State will recognize marriages performed in
other States. And unlike the federal government, Texas has always
been empowered to define and regulate marriage under our
constitutional system. Article I, section 32 of the Texas Constitution
and section 6.204 of the Texas Family Code exercise that sovereign
power in a way that simply codifies the traditional understanding of
marriage that has always been the law in this State. See, e.g., Littleton
v. Prange, 9 S.W.3d 223 (Tex. App.San Antonio 1999, pet. denied)
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(recognizing the invalidity of same-sex marriage in Texas prior to the
2003 enactment of section 6.204 of the Family Code).
Unlike the federal governments selection of a federal definition of
marriage, a States choice of the traditional definition of marriage is no
unusual deviation from the usual tradition. Windsor, 133 S. Ct. at
2693. The usual tradition is for States to define marriage as a union
of one man and one woman and to refuse recognition to out-of-state
marriages that violate the States public policy. SeeStates Br. at 38-40.
The Texas marriage laws J.B. challenges are exactly the kind of
marriage regulations that, under Windsor, are emphatically the
province of the States.
* * *
J.B.s incomplete description of Windsors holding omits two vital
clauses: under Windsor, constitutional principles are violated when
legally created same-sex marriages are treated unequally by the federal
government out of a desire to demean same-sex couples. That holding
has no application to this case. Windsor deals only with Section 3 of
federal DOMA. No state laws were at issue in Windsor. And the
Courts lengthy discussion of States authority to define and regulate
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marriage leaves no doubt that the Court did not intend its opinion to
abrogate state marriage laws. [W]hen a state court reviews state
legislation challenged as violative of the Fourteenth Amendment, it is
not free to impose greater restrictions as a matter of federal
constitutional law than this Court has imposed. Minnesota v. Clover
Leaf Creamery Co., 449 U.S. 456, 461 n.6 (1981). This Court has
recognized this restriction on its ability to expansively interpret the U.S
Constitution. See Bexar Cnty. Sheriffs Civil Serv. Commn v. Davis,
802 S.W.2d 659, 665 (Tex. 1990) (Phillips, C.J.) (declining to expand due
process rights of public employees beyond those rights previously
identified in U.S. Supreme Court decisions). To interpret Windsor as
J.B. does would violate that rule by expanding Windsor beyond its
holding and creating federal constitutional rights never recognized by
the U.S. Supreme Court.
If nothing else, the Windsor opinions lengthy federalism
discussion suggests that a simpler opinion announcing the blanket
constitutional rule desired by J.B. could not garner the votes of five
Justices. If it could, there would have been no need to devote a large
portion of the opinion to emphasizing the principles of federalism that
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reserve to the States the authority to define and regulate marriage
within their borders. Indeed, this portion of the opinioncompletely
unmentioned in J.B.s briefmakes a strong argument against the rule
that J.B. advocates. At least one of the Justices in the majority must
have insisted that the Courts decision include a reaffirmation the
States authority over marriage in order to clarify that the Courts
holding did not constrict the States power. There is no other good
explanation for the way the opinion is written. This Court must not
adopt a federal constitutional rule that recently failed to garner five
votes on the current U.S. Supreme Court.
III. J.B. MISINTERPRETS WINDSORS EQUAL PROTECTION AND DUEPROCESSANALYSIS.
Windsor holds that Section 3 is unconstitutional because,
according to the majority, the law was motivated not by any legitimate
purpose but by a desire to demean those persons who are in a lawful
same-sex marriage. 133 S. Ct. at 2695. As a resident of Texas, J.B. is
not in a lawful same-sex marriage. See TEX. FAM. CODE 6.204(b)
(declaring out-of-state same-sex marriages void). Thus, even if
Windsors holding applied to the States as well as the federal
government, it would not require Texas to recognize J.B.s void
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marriage. This Courts concern with Windsors equal protection and
due process analysis should end there.
J.B. nevertheless asks this Court to take the Windsormajoritys
factual finding about thepurposeof a particular federal law enacted in
1996 and apply it, without further analysis, to Texas laws enacted in
2003 and 2005. He cites nothing from the legislative record to support
his inflammatory claim that Texans who supported traditional
marriage laws were motivated solely by a desire to demean same-sex
couples. And he offers no new responses to the States argument that
protecting and preserving the traditional institution of marriagenot
harming or demeaning anyoneis the purpose of article I, section 32 of
the Constitution and section 6.204 of the Family Code. The only
support J.B. offers for his claim that irrational animus motivated
these laws is the allegation that Texas openly admitted in briefing
that the purpose of the laws is to harm same-sex couples. J.B.s Supp.
Br. at 10-11. Nothing could be further from the truth. Here is the
supposed admission:
J.B. complains that voidance does not provide the same
robust property division rights that divorce does. Resp. at
28-30. But of course that is precisely the point of Texas
lawto limit the more robust protections of divorce to valid
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marriages, while providing only the more limited remedies of
voidance to void marriages.
States COA Reply Br. at 7. This is not an admission that a
constitutionally improper motive infects Texass marriage laws. The
passage states the obviousTexas law reserves the benefits of
marriage, including divorce, to validly married couples. The point of
doing so is to provide protection and support for the traditional
institution of marriage because of the unique role it plays in procreation
and child-rearing, not to demean relationships that do not qualify for
marriagesuch as friendships, business partnerships, cohabiting
heterosexual relationships, or same-sex relationships.2
In sending Texass constitutional definition of marriage to the
voters, the Legislature made abundantly clear that the purpose of the
2 Windsors characterization of the sentiments of traditional-marriage proponents
seems to indicate that, in the Courts view, theirs is a legitimate perspective that
should remain part of an ongoing political conversation within the States:
For marriage between a man and a woman no doubt had been thought
of by most people as essential to the very definition of that term and to
its role and function throughout the history of civilization. That belief,
for many who long have held it, became even more urgent, more
cherished when challenged.
133 S. Ct. at 2689. These are not the words of a Court that agrees with J.B. that
advocates of the traditional definition of marriage within the States seek to impose
invidious, constitutionally suspect discrimination on their fellow citizens.
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States marriage laws is to preserve and promote the special legal
status that has always been afforded to traditional marriage, not to
express irrational animus against same-sex couples:
A traditional marriage consisting of a man and a woman is
the basis for a healthy, successful, stable environment for
children. It is the surest way for a family to enjoy good
health, avoid poverty, and contribute to their community.
The sanctity of marriage is fundamental to the strength of
Texas families, and the state should ensure that no court
decision could undermine this fundamental value.
HOUSE RESEARCH ORGANIZATION, H.J.R. 6 Bill Analysis, 79th
Leg., R.S. (April 25, 2005). The Legislatures statement of intent
reflects former Justice OConnors observations that preserving the
traditional institution of marriage is a legitimate state interest, and
other reasons exist to promote the institution of marriage beyond mere
moral disapproval of an excluded group. Lawrence v. Texas, 539 U.S.
558, 579, 585 (2003) (OConnor, J., concurring).
Obviously, Texas law does not treat J.B.s void marriage like a
valid marriage. That does not mean the motivationbehind Texas law
was to demean same-sex couples. J.B. never fills the logical gaps in his
argument. He starts with the undisputed fact that Texas law does not
treat him the way it treats married persons. He characterizes this as
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impos[ing] inequality on him. J.B.s Supp. Br. at 10-11. He then leaps
directly to the conclusion that the purpose of the law is to demean him.
He provides no evidence for this conclusion. Instead, he seems to
assume that only irrational bigotry could have been the basis for a law
he does not agree with. That is no basis on which to overturn the
validly enacted will of the people of Texas. The State has provided a
rational justification for its laws that has nothing to do with harming or
demeaning anyone, and J.B. has not disproven it. SeeStates Br. at 29-
32. Nothing more is required under rational-basis review, which J.B.
agrees is the appropriate standard. SeeJ.B.s Supp. Br. at 8-9.
J.B. further claims that, under Windsor, Texas law violates the
Fourteenth Amendment by making his marriage second-class. J.B.s
Supp. Br. at 10. But J.B.s marriage is not second-class in Texas. It
does not exist. TEX. FAM. CODE 6.204(b) (declaring same-sex
marriages void). Windsors marriage, by contrast, was valid in New
York. By refusing recognition to her marriage, federal DOMA
effectively created two unequal classes of valid marriages within New
York. According to Windsor, the federal governments creation of a two-
tiered marriage regime in states like New York raise[d] a most serious
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question under the Constitutions Fifth Amendment. 133 S. Ct. at
2694. That concern does not apply in Texas, where there is only one
class of marriages for all purposesthe union of a man and a woman.3
Finally, J.B. misreads a key passage near the end of the Windsor
decision. Substituting his own words for the words actually used by the
Supreme Court, he reconstructs a paragraph from Windsor in a way
that appears to support his claim. See J.B.s Supp. Br. at 12. The
words he substitutes, however, change the meaning of the paragraph
and do not accurately reflect Windsors reasoning. Here is the full
paragraph from the Supreme Courts opinion:
The class to which DOMA directs its restrictions and
restraints are those persons who are joined in same-sex
marriages made lawful by the State. DOMA singles out aclass of persons deemed by a State entitled to recognition
and protection to enhance their own liberty. It imposes a
disability on the class by refusing to acknowledge a status
the State finds to be dignified and proper. DOMA instructs
all federal officials, and indeed all persons with whom same-
sex couples interact, including their own children, that their
marriage is less worthy than the marriages of others. The
federal statute is invalid, for no legitimate purpose
overcomes the purpose and effect to disparage and to injure
3 It is J.B.s proposed rule that would create a two-tiered system in Texas. Under
his reading of Windsor, same-sex couples who were married elsewhere and now
reside in Texas must be treated as married. Same-sex couples who have always
lived in Texas, on the other hand, would continue to have no claim to the rights of
marriage.
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those whom the State, by its marriage laws, sought to
protect in personhood and dignity. By seeking to displace
this protection and treating those persons as living in
marriages less respected than others, the federal statute is
in violation of the Fifth Amendment. This opinion and itsholding are confined to those lawful marriages.
Windsor, 133 S. Ct. at 2695-96.4 As used in this passage, the State
means New York, Windsors State of residence. Throughout its opinion,
the Court emphasizes New Yorks decision to recognize its residents
same-sex marriages as the triggering event that entitled Windsors
relationship to federal recognition. E.g., id. at 2689, 2694, 2695-96.
Twice the majority criticizes Section 3 of DOMA as depriving Windsor
and her partner of equal standing in their communitythe political
community of New York, which has elected to recognize their marriage
as the equivalent of a traditional marriage. Id. at 2691-2692, 2694.
J.B. ignores all of this, just as he ignores the majoritys lengthy
discussion of States authority to define and regulate marriage within
their borders. He seizes on a few lines near the end of the opinion, and
4 J.B. omits the paragraphs final sentence from the quotation he provides to this
Court. That sentence reflects the majoritys concern that litigants would attempt to
use its decision exactly as J.B. hastwisting a limited holding about the federal
government into a far-reaching imposition on the States prerogative to define and
regulate marriage within their borders. Presumably that is why J.B. omitted the
sentence.
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he makes creative use of brackets to twist the meaning of those lines in
his favor. On that basis, he claims that Windsor gives him a
constitutional right to demand recognition of his Massachusetts
marriage from a State that has chosen to preserve the traditional
understanding of the institution. That is not a tenable reading of the
Supreme Courts decision.
Under the Supreme Courts reasoning, the place of celebration is
not what bestows constitutional protection on same-sex relationships.
Windsor was married in Canada. Under the majoritys reasoning, it
was not Windsors Canadian marriage license that entitled her
marriage to federal recognition. Rather, the decision of New York
Windsors State of residenceto recognize her marriage gave rise to
constitutional protections. Certainly nothing in the majority opinion
indicates that Windsors Canadian marriage would have been entitled
to federal recognition had she moved to Alabama immediately after
obtaining it. Windsors case came out the way it did because she chose
to reside in New York, a State which recognizes its residents same-sex
marriages.
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Unlike Windsor, J.B. resides in Texas, where his marriage is not
recognized. Unlike Windsor, his claim is not that the law of his state of
residence entitles his Massachusetts marriage to constitutional
recognition. His claim is that the law of the State where his marriage
was created, Massachusetts, follows him wherever he goes and requires
any State in which he resides to recognize his marriage regardless of
that States marriage policies. There is no legal supportin Windsoror
elsewherefor this staggering proposition. See Nevada v. Hall, 440
U.S. 410, 423-24 (1979) (Full faith and credit . . . does not . . . enable
one state to legislate for the other or to project its laws across state lines
so as to preclude the other from prescribing for itself the legal
consequences of acts within it.)(citation omitted).5
* * *
J.B.s attempt to impose Massachusetts marriage law on Texas
finds no support in Windsor. Indeed, it flies in the face of Windsors
5 The improper projection of one States laws into another would be further
complicated by the absence of a residence requirement for marriage in States suchas Massachusetts. SeeMass. Gen. Laws ch. 207, 11-13 (repealed 2008) (former
residence requirement now repealed). Residents of Texas or any other State need
spend only three days in Massachusetts to obtain a same-sex marriage in that state.
Mass. Gen. Laws ch. 207, 13, 19. If Texas were forced to recognize Massachusetts
same-sex marriages, then as a practical matter Texass definition of marriage would
be eviscerated.
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repeated affirmation of the States primary authority to define and
regulate marriage. As Windsor observes, In acting first to recognize
and then to allow same-sex marriages, New York was responding to the
initiative of those who [sought] a voice in shaping the destiny of their
own times. 133 S. Ct. at 2692 (citations and quotations omitted). The
very same could be said of the decision of the people of Texas and their
elected representatives, who voted overwhelmingly to affirm the
traditional understanding of marriage and to recognize only marriages
between one man and one woman. The people of Texas have the same
right as the people of Massachusetts or New York to have a voice in
shaping their States destiny. Texans have spoken clearly. Their voice
commands that only the union of one man and one woman will be
recognized as a marriage in Texas. This Court should reject J.B.s
invitation to substitute the rule of judges for the will of the people. The
Supreme Courts decision in Windsordoes not require otherwise.
IV. HOLLINGSWORTH V.PERRYDOES NOT IMPACT THIS CASE.In Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), the Supreme
Court vacated the Ninth Circuits decision and remanded with
instructions to dismiss the appeal of supporters of Californias
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Proposition 8, a ballot initiative that defined marriage in California as
the union of one man and one woman. The Court ruled that the
initiative supporters lacked standing to appeal the district court ruling
enjoining Proposition 8 even though the state government refused to
support the law. The Supreme Courts ruling does not address the
merits of the challenge to Proposition 8. It has no impact on this case.
J.B.s suggestion that this Court should follow the non-
precedential district court opinion in Hollingsworth reaches too far.
See, e.g., Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011) (A
decision of a federal district court judge is not binding precedent in
either a different judicial district, the same judicial district, or even
upon the same judge in a different case. (quoting 18 J. Moore et al.,
Moores Federal Practice 134.02[1][d], at 134-26 (3d ed. 2011))). Also
overreaching is J.B.s conflation of the nationwide constitutional right to
same-sex marriage discovered by the district court in Hollingsworth
with the Supreme Courts limited holding in Windsor. As explained
above, when considered in its context and read in its entirety, Windsor
provides no support for the expansive constitutional rule J.B. asks this
Court to impose.
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PRAYER
The Court should grant the petition for review and affirm the
judgment of the court of appeals.
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Respectfully submitted,
GREGABBOTT
Attorney General of Texas
DANIEL T.HODGE
First Assistant Attorney General
JONATHAN F.MITCHELL
Solicitor General
/s/ James D. Blacklock
JAMES D.BLACKLOCK
Deputy Attorney Generalfor Legal Counsel
State Bar No. 24050296
OFFICE OF THEATTORNEY GENERAL
P.O. Box 12548 (MC 001)
Austin, Texas 78711-2548
Tel.: (512) 936-8160
Fax: (512) [email protected]
COUNSEL FOR RESPONDENT
THE STATE OF TEXAS
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CERTIFICATE OF SERVICE
On July 29, 2013, the foregoing was served via CaseFileXpress on:
James J. Scheske5501-A Balcones Dr., #109
Austin, Texas 78731
Counsel for J.B.
/s/ James D. Blacklock
JAMES D.BLACKLOCK
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CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(2),
this brief contains 4,475 words, excluding the portions of the brief
exempted by Rule 9.4(i)(1).
/s/ James D. Blacklock
JAMES D.BLACKLOCK