No.

11-0024
________________________________ 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 ________________________________

FILED IN THE SUPREME COURT OF TEXAS 11 December 6 A9:59 BLAKE. A. HAWTHORNE CLERK

IN THE SUPREME COURT OF TEXAS

BRIEF AMICI CURIAE OF TEXAS STATE REPRESENTATIVE WARREN CHISUM AND THE HONORABLE TODD STAPLES IN SUPPORT OF THE STATE OF TEXAS ________________________________

Kelly J. Shackelford Texas State Bar No. 18070950 Jeffrey C. Mateer Texas State Bar No. 13185320 Hiram S. Sasser, III Texas State Bar No. 24039157 Erin Leu Texas State Bar No. 24070138 LIBERTY INSTITUTE 2001 W. Plano Parkway Suite 1600 Plano, Texas 75075 Tel. (972) 941-4444 Fax (972) 423-6162 Counsel for Amici Curiae

TABLE OF CONTENTS Index of Authorities ............................................................................................................................ iv! Interest of Amici Curiae....................................................................................................................... 1! Introduction ........................................................................................................................................... 2! Argument................................................................................................................................................ 4! I. ! 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. ................................................................................................... 4! A. ! There is an overwhelming democratic consensus that marriage is a union between a man and a woman. ...................................................................................... 4! B. ! Judicial restraint and the principle of separation of powers dictate that the people must decide this significant question of public policy. ......................... 7! 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-state marriage not recognized in Texas. ......................................................................................... 9! A. ! Recognizing this out-of-state marriage, even for the limited purpose of granting a divorce, violates Texass public policy.................................................... 10! B. ! Voidance is consistent with the Full Faith and Credit Clause. ............................... 11! C. ! Precedent from Texas appellate courts supports voidance, not the granting of a same-sex divorce. .................................................................................. 13! D. ! Other state courts have properly declined to grant same-sex divorces when the states laws forbid the recognition of same-sex marriages. .................. 15! E. ! Voiding Petitioners purported marriage does justice for the parties. .................. 17! III. ! Texas may constitutionally define the institution of marriage.................................... 19! A. ! 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 to rational basis review; they do not trigger heightened scrutiny. ............................. 22! C. ! Other courts have applied rational basis review when upholding a states ability 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. .......................................................................... 24! Conclusion ........................................................................................................................................... 27! Certificate of Service........................................................................................................................... 28!

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INDEX OF AUTHORITIES CASES! Adams 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.2d 1 (N.Y. 2006) ...............................................................................23 Hicks 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. LEXIS 2204 (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'd w.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 STATUTES! 1 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 AUTHORITIES! Constitutional 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 FOOTE JENKINS & RANDALL B. WILHITE, OCONNORS TEXAS FAMILY LAW HANDBOOK 256 (2010) .................................................................................................................18 JOHN D. MONTGOMERY, ET AL., TEXAS FAMILY LAW: PRACTICE AND PROCEDURE B1.01[3] (2d ed. 2007) ............................................................................................................. 10, 15 John Wright, Dallas Man files Texas 1st same-sex divorce case, DALLAS VOICE (Jan. 22, 2009) .................................................................................................................................................15 Mary Parke, Are married parents really better for children? What Research Says About the Effects of Family Structure on Child Well-Being, CENTER FOR LAW AND SOCIAL POLICY BRIEF no. 3, 5-6 (2003) ..................................................................................................................26 Record Vote No. 280. 104th Congress, 2d Sess. (Sept. 10, 1996) ................................................. 6 Record Vote No. 396, HOUSE JOURNAL, 79th Leg., Reg. Sess., 2205 (April 25, 2005) ............ 5 Record Vote No. 404, HOUSE JOURNAL, 78th Leg., Reg. Sess., 2116 (April 30, 2003) ............ 5 Richard N. Atkins, Discovering Daddy: The Mothers Role, in FATHER 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 SENATE JOURNAL, 78th Leg., Reg. Sess., 988 (April 15, 2003) ..................................................... 5 SENATE JOURNAL, 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

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

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, amici have 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 only traditional marriage will be recognized in Texas, and courts should properly defer 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 a union 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 contrarilyexpressed 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.2 Indeed, over 77% of all voting House members and 70% of voting Senators supported this constitutional amendment.3 On 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.4 On 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 alia 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). 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.7 On 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
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2 TEX. CONST. art. XVII, 1(a). 3 The vote in the Texas House was 102 yeas to 29 nays. Record Vote No. 396, HOUSE JOURNAL, 79th Leg., Reg. Sess., 2205 (April 25, 2005). The vote in the Texas Senate was 21 yeas to 9 nays. SENATE JOURNAL, 79th Leg. Reg. Sess., 2745 (May 21, 2005). 4 Constitutional Amendment Election Race Summary Report, Office of the Secretary of State (Nov. 8, 2005). 5 TEX. CONST. art. XVII, 1(c). 6 The vote was 119 yeas to 9 nays. Record Vote No. 404, HOUSE JOURNAL, 78th Leg., Reg. Sess., 2116 (April 30, 2003). 7 SENATE JOURNAL, 78th Leg., Reg. Sess., 988 (April 15, 2003). 5!

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).9 DOMA passed with broad, bipartisan support. In the U.S. House, over 83% of voting members voted in favor of this act.10 In the U.S. Senate, the vote was eighty-five Yeas to fourteen Nays (over 85% support), with forty-six Democrats supporting the bill.11 President Bill Clinton signed DOMA into law on September 21, 1996. The day before doing so, he declared: I have long opposed governmental recognition of samegender 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

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 8 Six StatesConnecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermontplus the District of Columbia, recognize same-sex marriages. Three States, New Jersey, New Mexico, and Rhode Island, do not have laws addressing the issue. 9 Although Petitioner cites a handful of cases in California and Massachusetts holding DOMA unconstitutional 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 in Wilson 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). 10 The vote was 342 Yeas to 67 Nays, with 118 Democrats supporting the bill. Roll Call No. 316, 104th Cong., 2d Sess. (July 12, 1996). 11 Record Vote No. 280. 104th Congress, 2d Sess. (Sept. 10, 1996). 6!

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 powers dictate that the people must decide this significant question of public 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.13 TEX. 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-Gender Marriages, in THE COLUMBIA DOCUMENTARY HISTORY OF AMERICAN WOMEN SINCE 1941, 543 (Harriet Sigerman ed. 2003). 13 It states: The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are 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 power properly attached to either of the others, except in the instances herein expressly permitted. TEX. CONST. art. II, 1. 7!

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 groups14 co-authored a policy paper entitled Why the ballot box and not the courts should be the next step on marriage in California.15 The 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
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 14 The 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 Rights Campaign, and the National Gay and Lesbian Task Force. 15 ACLU, 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. 8!

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-state marriage 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

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 16 Posting of Professor Lisa McElroy to SCOTUSblog, http://www.scotusblog.com/2010/03/lastweek-in-plain-english-3/#more-17252 (March 8, 2010, 13:30 EST). 9!

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. TEX. 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 this out-of-state marriage, even for the limited purpose of granting a divorce, violates Texass public 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. Voidance is consistent with the Full 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 not require a State to apply another State's law in violation of its own legitimate

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public policy. Nevada v. Hall, 440 U.S. 410, 423 (1979) (citing Pacific Employers Ins. Co. v. Indus. Accident Commn, 306 U.S. 493 (1939)) (emphasis added). Indeed, the "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." Nevada v. Hall, 440 U.S. at 423-24 (quoting Pacific Employers Ins. Co, 306 U.S. at 504-05). In fact, the U.S. Supreme Court specifically noted the validity of state laws that refuse to recognize marriages contrary to state public policy. Loughran v. Loughran, 292 U.S. 216, 223 (1934) (Marriages not polygamous or incestuous, or otherwise declared void by statute will, if valid by the laws of the state where entered into, be recognized as valid in every other jurisdiction.) (emphasis added). Furthermore, the U.S. Constitution places an important qualification on the Full Faith and Credit Clause: And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. U.S. CONST. art. IV, 1. By passing DOMA, Congress exercised its constitutional authority in prescribing that [n]o State shall be required to give effect to any public act, record, or judicial proceeding of any other State respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State or a right or claim arising from such relationship. 28 U.S.C. 1738C (2011). Although States already had the right not to recognize same-sex relationships under the public policy exception of the Full Faith and Credit Clause, DOMA codified this right in federal law using Congresss power to define the scope of the Full Faith and Credit Clause. The present case squarely fits

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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 the granting 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. 01-0800499-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 the Naylor court, 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, in Mireles 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. The Mireles court 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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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].17 He 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.18 Same-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 here19 precisely because Texas law is so clear on this issue. D. Other state courts have properly declined to grant same-sex divorces when 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
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 17 John Wright, Dallas Man files Texas 1st same-sex divorce case, DALLAS VOICE (Jan. 22, 2009). 18 Id. 19 Id. 20 Petitioner cites Christiansen v. Christiansen, 253 P.3d 153 (Wyo. 2011), for the proposition that a state 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 15!

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 Christiansen was contracted in Canada, Section 20-1-111 controlled. Texas has no similar law on its books recognizing all foreign marriages. 16!

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 Petitioners purported 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. Texas may constitutionally define the institution of marriage. 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 also Loving 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 samesex 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 Bakers precedential 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. Texas leaves Baker undisturbed. The Lawrence majority 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 unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relationsthe asserted state interest in this caseother reasons exist to promote the institution of marriage beyond mere moral 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, Boddie did 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 due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care 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 policy preferences 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, 177 S.W.2d 237, 239 (Tex. Civ. App.Texarkana 1943), neither of which states that there is an independent right to a divorce. 21!

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.23 This 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 subject only to rational 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 States occurred in 2003. Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). Same-sex marriage 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 our long 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 fundamental right). 22!

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 also Wilson, 354 F. Supp. 2d at 1289.24 C. Other courts have applied rational basis review when upholding a states 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.2d 1 (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

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 24 Only the Ninth Circuit has held that sexual orientation is suspect class. Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989). A year later, however, the Ninth Circuit reversed its position holding that sexual orientation is not a suspect class. High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990).
25

Although the New York legislature decided this year to recognize same-sex marriages, this has no bearing on the appropriate level of scrutiny to apply to laws affecting homosexuals. 23!

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 see Perry, 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 the union of one man and one woman.

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 also Maynard 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 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., 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.26 These 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. 27 Traditional marriage, the union between a man and a woman, is uniquely
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 26 See, e.g., WILLIAM J. DOHERTY ET AL., WHY MARRIAGE MATTERS: TWENTY ONE CONCLUSIONS FROM THE SOCIAL SCIENCES (Institute for American Values 2002); MAGGIE GALLAGHER & LINDA J. WAITE, THE CASE FOR MARRIAGE (Broadway Books 2000); TEXAS CONSERVATIVE COALITION RESEARCH 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, The Heritage Foundation. 27 WILLIAM J. DOHERTY ET AL., WHY MARRIAGE MATTERS: TWENTY ONE CONCLUSIONS FROM THE SOCIAL SCIENCES 6 (Institute for American Values 2002). 25!

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.28 Same-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.29 It is well documented that children of divorced parents are disadvantaged when compared to children of married parents.30 These 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.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 28 Richard N. Atkins, Discovering Daddy: The Mothers Role, in FATHER AND CHILD: DEVELOPMENTAL AND CLINICAL PERSPECTIVES 139, 144 (Stanley H. Cath et al., eds. 1982). 29 Mary Parke, Are married parents really better for children? What Research Says About the Effects of Family Structure on Child Well-Being, CENTER FOR LAW AND SOCIAL POLICY BRIEF no. 3, 5-6 (2003). 30 Id. at 3. 26!

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. Shackelford Texas State Bar No. 18070950 Jeffrey C. Mateer Texas State Bar No. 13185320 Hiram S. Sasser, III Texas State Bar No. 24039157 Erin Leu Texas State Bar No. 24070138 LIBERTY INSTITUTE 2001 W. Plano Parkway Suite 1600 Plano, Texas 75075 Tel. (972) 941-4444 Fax (972) 423-6162 Counsel for Amici Curiae

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CERTIFICATE OF SERVICE I certify that on ______ __, 2011, true and correct copies of this brief were served by certified U.S. mail, return receipt requested, to: Greg Abbott Daniel T. Hodge Bill Cobb Jonathan F. Mitchell James D. Blacklock Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 James J. Scheske Jason P. Steed Akin Gump Strauss Hauer Feld LLP 300 West 6th Street Suite 1900 Austin, Texas 78701

_/s/ Jeffrey C. Mateer__________ Jeffrey C. Mateer

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