PO S T O F F I C E B O X 1 2 5 4 8 , A U S T I N , T E X A S 7 8 7 1 1 - 2 5 4 8 W E B : W W W . T E X A S A T T O R N E YG E N E R A L . G O V

An Equal Employment Opportunity Employer · Printed on Recycled Paper

August 6, 2013 The Supreme Court of Texas P.O. Box 12248 Austin, Texas 78711 RE: No. 11-0114

Court of Appeals Number: 03-10-00237-CV Trial Court Number: D-1-FM-09-000050 Style: State of Texas v. Angelique S. Naylor and Sabina Daly

To the Clerk of the Supreme Court:

In the above-captioned case, the Court instructed the State to file any supplemental reply brief on the legal impact of recent U.S. Supreme Court decisions by August 6, 2013. The impact of United States v. Windsor, 133 S. Ct. 2675 (2013), on this case is identical to United States v Windsor’s impact on In the Matter of the Marriage of J.B. and H.B., No. 11-0024. The State’s arguments in reply to Respondents’ position on Windsor are adequately set forth in the State’s supplemental response brief, filed July 29, 2013, in the Marriage of J.B. case. A copy of that brief is attached to this letter.

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), has no impact on this case. The State’s arguments in favor of its standing to appeal are fully presented in its main brief on the merits.

Please accept this letter in lieu of a supplemental reply brief and file it with the record of this case. Sincerely, /s/ James B. Blacklock JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel Office of the Attorney General of Texas (512) 936-8160 / (512) 936-0545 (fax) JDB/apw Attachment

FILEDIN THE SUPREME COURTOF TEXAS13 August 6 P5:42 BLAKE. A. HAWTHORNECLERK

cc: James D. Scheske 5501-A Balcones Dr., #109 Austin, Texas 78731

Jennifer R. Cochran THE LAW OFFICES OF JENNIFER R. COCHRAN 13062 Highway 290 West Suite 201 Austin, Texas 78737 Robert B. Luther LAW OFFICES OF ROBERT B. LUTHER, P.C. 919 Congress Avenue Suite 450 Austin, Texas 78701 Jason Steed LAW OFFICE OF JASON STEED 3600 Aquamarine Drive Round Rock, TX 78681 Daniel H. Branch 3953 Maple Avenue Suite 100 Dallas, Texas 75219

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 ADDRESSING RECENT U.S. SUPREME COURT DECISIONS

GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General JONATHAN F. MITCHELL Solicitor General

JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel State Bar No. 24050296 OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 001) Austin, Texas 78711-2548 Tel.: (512) 936-8160 Fax: (512) 474-2697 jimmy.blacklock@texasattorneygeneral.gov

COUNSEL FOR RESPONDENT THE STATE OF TEXAS

FILEDIN THE SUPREME COURTOF TEXAS13 July 29 P4:50 BLAKE. A. HAWTHORNECLERK

ii

TABLE OF CONTENTS

Index of Authorities .................................................................................. iii 

Issues Presented ......................................................................................... v 

Summary of Argument ............................................................................... 1 

Argument .................................................................................................... 2 

I.  Texas Law Prohibits Same-Sex Divorce; Only By Holding Texas Law Unconstitutional Can This Court Provide J.B. the Relief He Seeks. ............................................ 2 

II.  United States v. Windsor Has No Direct Impact on This Case; If Anything, it Reaffirms the States’ Authority To Define and Regulate Marriage Within Their Borders. .......... 5 

III.  J.B. Misinterprets Windsor’s Equal Protection and Due Process Analysis. .................................................................... 11 

IV.  Hollingsworth v. Perry Does Not Impact This Case. ............ 20 

Prayer ........................................................................................................ 22 

Certificate of Service ................................................................................ 24 

Certificate of Compliance ......................................................................... 25 

iii

INDEX OF AUTHORITIES

Cases 

Bexar Cnty. Sheriff’s Civil Serv. Comm’n 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

iv

Statutes 

1 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., Moore’s 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

v

ISSUES PRESENTED

1. Does a Texas court have jurisdiction over a divorce suit involving a same-sex couple who obtained a marriage license in another state?

2. Does the U.S. Constitution permit Texas to define the legal institution of marriage as the union of one man and one woman, and to provide the rights of marriage—which include divorce—only to those legally recognized relationships?

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 REGARDING RECENT 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 OF ARGUMENT

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

2

cannot, as J.B. suggests, decline to reach the merits of J.B.’s

constitutional attack on Texas’s marriage laws.

Those marriage laws are a valid exercise of the State’s well-

recognized authority to define marriage and to decline recognition to

out-of-state marriages that violate the Texas’s 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

Court’s 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. Perry is irrelevant to this case.

ARGUMENT

I. TEXAS LAW PROHIBITS SAME-SEX DIVORCE; ONLY BY HOLDING

TEXAS 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

3

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 marriage void, 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 other jurisdiction.” 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

4

divorced. See State’s 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. See TEX. 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

State’s 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.

5

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 THIS

CASE; IF ANYTHING, IT REAFFIRMS THE STATES’ AUTHORITY TO

DEFINE AND REGULATE MARRIAGE WITHIN 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.

6

Ct. 2675, 2693 (2013) (emphasis added). J.B.’s expansive reading of

Windsor ignores and contradicts one of the key bases for the Court’s

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 State’s broader

authority to regulate the subject of domestic relations.” Id.

These principles lead the Windsor majority to view Section 3’s

federal definition of marriage as an “unusual deviation” from the

federal government’s “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 reason—aside from what the Court considered a

desire to demean same-sex couples—to get into the marriage-defining

business. Id. at 2695.

7

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 Windsor majority looks with

favor on a State’s 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 York’s

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 Texas’s actions in 2003 and 2005,

when its citizens and legislators chose to codify the State’s historical

understanding of the marriage relationship. Nothing in Windsor

supports J.B’s rule that a State’s “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

8

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 3’s departure from the traditional mechanisms

through which marriage policy is created—not the substance of its

definition of marriage—that 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)

9

(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 government’s selection of a federal definition of

marriage, a State’s 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 State’s public policy. See State’s 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 Windsor’s 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

Court’s lengthy discussion of States’ authority to define and regulate

10

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. Sheriff’s Civil Serv. Comm’n 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 opinion’s 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

11

reserve to the States the authority to define and regulate marriage

within their borders. Indeed, this portion of the opinion—completely

unmentioned in J.B.’s brief—makes a strong argument against the rule

that J.B. advocates. At least one of the Justices in the majority must

have insisted that the Court’s decision include a reaffirmation the

States’ authority over marriage in order to clarify that the Court’s

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 WINDSOR’S EQUAL PROTECTION AND DUE

PROCESS ANALYSIS.

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

Windsor’s holding applied to the States as well as the federal

government, it would not require Texas to recognize J.B.’s void

12

marriage. This Court’s concern with Windsor’s equal protection and

due process analysis should end there.

J.B. nevertheless asks this Court to take the Windsor majority’s

factual finding about the purpose of 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 State’s argument that

protecting and preserving the traditional institution of marriage—not

harming or demeaning anyone—is 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 law—to limit the more robust protections of divorce to valid

13

marriages, while providing only the more limited remedies of voidance to void marriages.

State’s COA Reply Br. at 7. This is not an admission that a

constitutionally improper motive infects Texas’s marriage laws. The

passage states the obvious—Texas 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

marriage—such as friendships, business partnerships, cohabiting

heterosexual relationships, or same-sex relationships.2

In sending Texas’s constitutional definition of marriage to the

voters, the Legislature made abundantly clear that the purpose of the

2 Windsor’s characterization of the sentiments of traditional-marriage proponents seems to indicate that, in the Court’s 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.

14

State’s 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 Legislature’s statement of intent

reflects former Justice O’Connor’s 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) (O’Connor, J., concurring).

Obviously, Texas law does not treat J.B.’s void marriage like a

valid marriage. That does not mean the motivation behind 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

15

“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. See State’s Br. at 29-

32. Nothing more is required under rational-basis review, which J.B.

agrees is the appropriate standard. See J.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). Windsor’s 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 government’s creation of a two-

tiered marriage regime in states like New York “raise[d] a most serious

16

question under the Constitution’s Fifth Amendment.” 133 S. Ct. at

2694. That concern does not apply in Texas, where there is only one

class of marriages for all purposes—the 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 Windsor’s reasoning. Here is the full

paragraph from the Supreme Court’s 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 a class 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.

17

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 its holding are confined to those lawful marriages.

Windsor, 133 S. Ct. at 2695-96.4 As used in this passage, “the State”

means New York, Windsor’s State of residence. Throughout its opinion,

the Court emphasizes New York’s decision to recognize its residents’

same-sex marriages as the triggering event that entitled Windsor’s

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 community”—the 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 majority’s 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 paragraph’s final sentence from the quotation he provides to this Court. That sentence reflects the majority’s concern that litigants would attempt to use its decision exactly as J.B. has—twisting 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.

18

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 Court’s decision.

Under the Supreme Court’s reasoning, the place of celebration is

not what bestows constitutional protection on same-sex relationships.

Windsor was married in Canada. Under the majority’s reasoning, it

was not Windsor’s Canadian marriage license that entitled her

marriage to federal recognition. Rather, the decision of New York—

Windsor’s State of residence—to recognize her marriage gave rise to

constitutional protections. Certainly nothing in the majority opinion

indicates that Windsor’s Canadian marriage would have been entitled

to federal recognition had she moved to Alabama immediately after

obtaining it. Windsor’s case came out the way it did because she chose

to reside in New York, a State which recognizes its residents’ same-sex

marriages.

19

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 State’s marriage policies. There is no legal support—in Windsor or

elsewhere—for 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 Windsor’s

5 The improper projection of one State’s laws into another would be further complicated by the absence of a residence requirement for marriage in States such as Massachusetts. See Mass. 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 Texas’s 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 State’s 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 Court’s decision in Windsor does not require otherwise.

IV. HOLLINGSWORTH V. PERRY DOES NOT IMPACT THIS CASE.

In Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), the Supreme

Court vacated the Ninth Circuit’s decision and remanded with

instructions to dismiss the appeal of supporters of California’s

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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 Court’s 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.,

Moore’s 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 Court’s 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, GREG ABBOTT 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 General for Legal Counsel State Bar No. 24050296 OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 001) Austin, Texas 78711-2548 Tel.: (512) 936-8160 Fax: (512) 474-2697 jimmy.blacklock@texasattorneygeneral.gov

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. Scheske 5501-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