Tuesday, June 23, 2015

State of Texas v Naylor & Daly - Cause of action for same-sex divorce in Texas? - Not yet (Comment on Texas Supreme Court's 6/19/2015 ruling)

Some of the media coverage of the Texas Supreme Court's resolution of the Attorney General's appeal of the same-sex divorce decree granted by a judge in Austin has created the impression the Texas now recognizes same-sex divorce even though it does not recognize same-sex marriage.
Attorney General Ken Paxton himself contributed to that mis-perception by issuing a press-release accusing the state supreme court of having "effectively" recognized same-sex divorce in its June 19, 2015 ruling.

That is simply not so. The majority makes clear that it turned the Attorney General away for the same reason the Third Court of Appeals did in the first instance. State of Texas v. Naylor, No. 11-0114 consolidated with No. 11-0222 (Tex. June 19, 2015)("We agree with the court of appeals that the State lacks standing to appeal the trial court’s decree."). The majority did not reach the merits.

The Attorney General (Greg Abbott at the time) did not timely intervene in the trial court, and the State therefore did not have standing to appeal as a party post-judgment. Nor could the State claim the right to appeal as a non-party under the "virtual representation" doctrine. The Third Court of Appeals accordingly dismissed the attempted appeal for lack of jurisdiction, and the Supreme Court agreed with the intermediate court's analysis of the procedural posture of the case.
Justice Willett would have exempted the Attorney General from having to play by the same rules that other intervenors (or would-be intervenors) have to abide by, and would have modified the common law to create "equitable standing" for the attorney general to attack the validity of the final decree that the trial court entered based on the parties' agreement. But only two of his colleagues signed on to his proposed ad hoc modification of the common law to favor the State in a private dispute that the parties had resolved to their mutual satisfaction.
Interestingly, none of the four opinions issued in the case acknowledges that it is the policy of the State of Texas to favor the amicable resolution of disputes, and that the Attorney General forced the parties into protracted appellate litigation that Naylor and Daly had sought to avoid by making peace with each other.

Click for link to all opinions here.

June 19, 2015 Texas  Supreme Court Orders List
High Court hands down decision in same-sex divorce case from Austin,
affirms intermediate court's dismissal of Attorney General's appeal for lack of jurisdiction   

Links to related blog posts by others:  

Why the Texas Supreme Court did not authorize same-sex marriage under Texas law (law firm blog post)  

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