No.

11-0024
In the Supreme Court of Texas
IN THE MATTER OF THE MARRIAGE OF J.B. AND H.B.

FILED IN THE SUPREME COURT OF TEXAS 13 July 29 P4:50 BLAKE. A. HAWTHORNE CLERK

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

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 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

II.

III. J.B. Misinterprets Windsors 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

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INDEX OF AUTHORITIES Cases Bexar Cnty. Sheriffs Civil Serv. Commn v. Davis, 802 S.W.2d 659 (Tex. 1990)............................................................. 10 Camreta v. Greene, 131 S. Ct. 2020 (2011) ..................................................................... 21 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ........................................................... 2, 20, 21 Lawrence v. Texas, 539 U.S. 558 (2003) ........................................................................ 14 Littleton v. Prange, 9 S.W.3d 223 (Tex. App.San Antonio 1999, pet. denied) ........................................................................................ 8 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981). ........................................................................ 10 Nevada v. Hall, 440 U.S. 410 (1979) ......................................................................... 19 Sosna v. Iowa, 419 U.S. 393 (1975) ........................................................................... 6 United States v. Windsor, 133 S. Ct. 2675 (2013) ............................................................. passim Williams v. North Carolina, 317 U.S. 287 (1942). .......................................................................... 7

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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., Moores Federal Practice 134.02[1][d] (3d ed. 2011)..................................................................................... 21 HOUSE RESEARCH ORGANIZATION, H.J.R. 6 Bill Analysis, 79th Leg., R.S. (April 25, 2005). ..................................... 14

Constitutional Provisions TEX. CONST. art. I, 32 ......................................................................... 8, 12 TEX. CONST. art. I, 32(a)....................................................................... 3, 4

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ISSUES PRESENTED 1. Does a Texas court have jurisdiction over a divorce suit involving a same-sex couple who obtained a marriage license in another state? 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 marriagewhich include divorceonly to those legally recognized relationships?

2.

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

cannot, as J.B. suggests, decline to reach the merits of J.B.s constitutional attack on Texass marriage laws. Those marriage laws are a valid exercise of the States wellrecognized authority to define marriage and to decline recognition to out-of-state marriages that violate the Texass public policy. States v. Windsor does not alter the outcome. United

Its holding and its

reasoning apply only to the federal government, not the States. J.B.s expansive reading of Windsor ignores large portions of the Supreme Courts decision, which affirms the States traditional authority to define and regulate marriage within their borders. Projecting

Massachusetts marriage policies into Texas, as J.B. urges, would contradict the very principles of federalism on which Windsor relies. Hollingsworth v. 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

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

divorced.

See States Br. at 4-10.

Nor can a Texas court exercise

jurisdiction over a petition for same-sex divorce. Id. at 10-19. J.B.s statutory-construction arguments never deal with the text of the law.1 Instead, J.B.s lawyers sophistically claim that he is not

asking the court to give effect to a claim to any legal protection, benefit, or responsibility resulting from his marriage; he is asking only to dissolve his marriage. J.B.s Supp. Br. at 5. But if J.B. were really just interested in dissolving his Massachusetts marriage, he would dismiss his suit for divorce and file a suit to declare the marriage void, which is the dissolution mechanism Texas law provides for void marriages. 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 States Br. at 11-13 (describing many substantive and procedural rights
J.B. cites several cases in which this Court has held that, when faced with multiple interpretations of a statute, the Court should choose the interpretation that does not render the statute constitutionally suspect. J.B.s Supp. Br. at 5-6. There are not multiple interpretations of article I, section 32(a) of the Texas Constitution or section 6.204 of the Family Code. And in any event, the unambiguous text of these laws does not render them constitutionally suspect. The cases J.B. cites have no application here.
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available to married parties in divorce suits). In short, he wants Texas courts to treat his void marriage just like they would treat the legally valid union of one man and one woman. That is exactly what the Texas Constitution and Family Code prohibit. Because Texas law bars J.B.s claim, the only way he can obtain a divorce is to convince the Court that the U.S. Constitution prevents the Court from enforcing Texas law. Thus, in order to fully dispose of this case, the Court should address and reject J.B.s constitutional attack on the laws that bar his divorce claim. II. UNITED STATES V. WINDSOR HAS NO DIRECT IMPACT ON 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.

Ct. 2675, 2693 (2013) (emphasis added). J.B.s expansive reading of Windsor ignores and contradicts one of the key bases for the Courts decisions: the States traditional authority in our constitutional system to define and regulate marriage for themselves. Id. at 2689-2696.

According to the majority, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States. Id. at 2691 (citing Sosna v. Iowa, 419 U.S. 393, 404 (1975)). The definition of marriage is the foundation of the States broader authority to regulate the subject of domestic relations. Id. These principles lead the Windsor majority to view Section 3s federal definition of marriage as an unusual deviation from the federal governments usual tradition of recognizing and accepting state definitions of marriage. Id. at 2693. This unusual character of

Section 3 caused the majority to use careful consideration in examining its constitutionality. Id. at 2692. The majority ultimately concluded that Section 3 is unconstitutional because the federal government had no reasonaside from what the Court considered a desire to demean same-sex couplesto get into the marriage-defining business. Id. at 2695.

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 States engagement in a statewide deliberative process that enable[s] its citizens to discuss and weigh arguments for and against same-sex marriage. Id. at 2689. The Court described New Yorks

engagement in such a political process as follows: These actions were without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended. The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other. Id. at 2692. The same could be said of Texass actions in 2003 and 2005, when its citizens and legislators chose to codify the States historical understanding of the marriage relationship. Nothing in Windsor

supports J.Bs rule that a States proper exercise of its sovereign authority within our federal system must be commandeered by the courts when it does not reach results that favor same-sex marriage. Indeed, a court-imposed constitutional obligation to recognize same-sex

marriages would short-circuit what the Supreme Court held up as an important political process within the States, trampling on core values of federalism undergirding the Windsor decision. It was Section 3s departure from the traditional mechanisms through which marriage policy is creatednot the substance of its definition of marriagethat singled out Section 3 for constitutional scrutiny. The Court criticized Section 3 for its lack of an identified connection to any particular area of federal law. Id. at 2694. Unlike federal law, however, Texas law has always been concerned with the regulation of domestic relations, including the definition of marriage and the extent to which the State will recognize marriages performed in other States. And unlike the federal government, Texas has always been empowered to define and regulate marriage under our

constitutional system. Article I, section 32 of the Texas Constitution and section 6.204 of the Texas Family Code exercise that sovereign power in a way that simply codifies the traditional understanding of marriage that has always been the law in this State. See, e.g., Littleton v. Prange, 9 S.W.3d 223 (Tex. App.San Antonio 1999, pet. denied)

(recognizing the invalidity of same-sex marriage in Texas prior to the 2003 enactment of section 6.204 of the Family Code). Unlike the federal governments selection of a federal definition of marriage, a States choice of the traditional definition of marriage is no unusual deviation from the usual tradition. Windsor, 133 S. Ct. at 2693. The usual tradition is for States to define marriage as a union of one man and one woman and to refuse recognition to out-of-state marriages that violate the States public policy. See States Br. at 38-40. The Texas marriage laws J.B. challenges are exactly the kind of marriage regulations that, under Windsor, are emphatically the province of the States. *** J.B.s incomplete description of Windsors holding omits two vital clauses: under Windsor, constitutional principles are violated when legally created same-sex marriages are treated unequally by the federal government out of a desire to demean same-sex couples. That holding has no application to this case. Windsor deals only with Section 3 of federal DOMA. No state laws were at issue in Windsor. And the

Courts lengthy discussion of States authority to define and regulate

marriage leaves no doubt that the Court did not intend its opinion to abrogate state marriage laws. [W]hen a state court reviews state

legislation challenged as violative of the Fourteenth Amendment, it is not free to impose greater restrictions as a matter of federal constitutional law than this Court has imposed. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461 n.6 (1981). This Court has

recognized this restriction on its ability to expansively interpret the U.S Constitution. See Bexar Cnty. Sheriffs Civil Serv. Commn v. Davis, 802 S.W.2d 659, 665 (Tex. 1990) (Phillips, C.J.) (declining to expand due process rights of public employees beyond those rights previously identified in U.S. Supreme Court decisions). To interpret Windsor as J.B. does would violate that rule by expanding Windsor beyond its holding and creating federal constitutional rights never recognized by the U.S. Supreme Court. If nothing else, the Windsor opinions lengthy federalism discussion suggests that a simpler opinion announcing the blanket constitutional rule desired by J.B. could not garner the votes of five Justices. If it could, there would have been no need to devote a large portion of the opinion to emphasizing the principles of federalism that

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reserve to the States the authority to define and regulate marriage within their borders. Indeed, this portion of the opinioncompletely unmentioned in J.B.s briefmakes a strong argument against the rule that J.B. advocates. At least one of the Justices in the majority must have insisted that the Courts decision include a reaffirmation the States authority over marriage in order to clarify that the Courts holding did not constrict the States power. There is no other good

explanation for the way the opinion is written. This Court must not adopt a federal constitutional rule that recently failed to garner five votes on the current U.S. Supreme Court. III. J.B. MISINTERPRETS WINDSORS EQUAL PROTECTION PROCESS ANALYSIS.
AND

DUE

Windsor holds that Section 3 is unconstitutional because, according to the majority, the law was motivated not by any legitimate purpose but by a desire to demean those persons who are in a lawful same-sex marriage. 133 S. Ct. at 2695. As a resident of Texas, J.B. is not in a lawful same-sex marriage. See TEX. FAM. CODE 6.204(b) (declaring out-of-state same-sex marriages void). Thus, even if

Windsors holding applied to the States as well as the federal government, it would not require Texas to recognize J.B.s void 11

marriage. This Courts concern with Windsors equal protection and due process analysis should end there. J.B. nevertheless asks this Court to take the Windsor majoritys 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 States argument that protecting and preserving the traditional institution of marriagenot harming or demeaning anyoneis the purpose of article I, section 32 of the Constitution and section 6.204 of the Family Code. The only

support J.B. offers for his claim that irrational animus motivated these laws is the allegation that Texas openly admitted in briefing that the purpose of the laws is to harm same-sex couples. J.B.s Supp. Br. at 10-11. Nothing could be further from the truth. Here is the supposed admission: J.B. complains that voidance does not provide the same robust property division rights that divorce does. Resp. at 28-30. But of course that is precisely the point of Texas lawto limit the more robust protections of divorce to valid 12

marriages, while providing only the more limited remedies of voidance to void marriages. States COA Reply Br. at 7. This is not an admission that a

constitutionally improper motive infects Texass marriage laws. The passage states the obviousTexas law reserves the benefits of marriage, including divorce, to validly married couples. The point of doing so is to provide protection and support for the traditional institution of marriage because of the unique role it plays in procreation and child-rearing, not to demean relationships that do not qualify for marriagesuch as friendships, business partnerships, cohabiting heterosexual relationships, or same-sex relationships.2 In sending Texass constitutional definition of marriage to the voters, the Legislature made abundantly clear that the purpose of the

Windsors characterization of the sentiments of traditional-marriage proponents seems to indicate that, in the Courts view, theirs is a legitimate perspective that should remain part of an ongoing political conversation within the States: For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged.

133 S. Ct. at 2689. These are not the words of a Court that agrees with J.B. that advocates of the traditional definition of marriage within the States seek to impose invidious, constitutionally suspect discrimination on their fellow citizens.

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States marriage laws is to preserve and promote the special legal status that has always been afforded to traditional marriage, not to express irrational animus against same-sex couples: A traditional marriage consisting of a man and a woman is the basis for a healthy, successful, stable environment for children. It is the surest way for a family to enjoy good health, avoid poverty, and contribute to their community. The sanctity of marriage is fundamental to the strength of Texas families, and the state should ensure that no court decision could undermine this fundamental value. HOUSE RESEARCH ORGANIZATION, H.J.R. 6 Bill Analysis, 79th Leg., R.S. (April 25, 2005). The Legislatures statement of intent

reflects former Justice OConnors observations that preserving the traditional institution of marriage is a legitimate state interest, and other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. Lawrence v. Texas, 539 U.S. 558, 579, 585 (2003) (OConnor, J., concurring). Obviously, Texas law does not treat J.B.s void marriage like a valid marriage. That does not mean the 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

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impos[ing] inequality on him. J.B.s Supp. Br. at 10-11. He then leaps directly to the conclusion that the purpose of the law is to demean him. He provides no evidence for this conclusion. Instead, he seems to

assume that only irrational bigotry could have been the basis for a law he does not agree with. That is no basis on which to overturn the

validly enacted will of the people of Texas. The State has provided a rational justification for its laws that has nothing to do with harming or demeaning anyone, and J.B. has not disproven it. See States Br. at 2932. 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). Windsors marriage, by contrast, was valid in New York. By refusing recognition to her marriage, federal DOMA

effectively created two unequal classes of valid marriages within New York. According to Windsor, the federal governments creation of a twotiered marriage regime in states like New York raise[d] a most serious

15

question under the Constitutions Fifth Amendment.

133 S. Ct. at

2694. That concern does not apply in Texas, where there is only one class of marriages for all purposesthe union of a man and a woman.3 Finally, J.B. misreads a key passage near the end of the Windsor decision. Substituting his own words for the words actually used by the Supreme Court, he reconstructs a paragraph from Windsor in a way that appears to support his claim. See J.B.s Supp. Br. at 12. The words he substitutes, however, change the meaning of the paragraph and do not accurately reflect Windsors reasoning. paragraph from the Supreme Courts opinion: The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out 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 samesex 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
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.
3

Here is the full

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those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and 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, Windsors State of residence. Throughout its opinion, the Court emphasizes New Yorks decision to recognize its residents same-sex marriages as the triggering event that entitled Windsors relationship to federal recognition. E.g., id. at 2689, 2694, 2695-96. Twice the majority criticizes Section 3 of DOMA as depriving Windsor and her partner of equal standing in their communitythe political community of New York, which has elected to recognize their marriage as the equivalent of a traditional marriage. Id. at 2691-2692, 2694. J.B. ignores all of this, just as he ignores the majoritys lengthy discussion of States authority to define and regulate marriage within their borders. He seizes on a few lines near the end of the opinion, and

J.B. omits the paragraphs final sentence from the quotation he provides to this Court. That sentence reflects the majoritys concern that litigants would attempt to use its decision exactly as J.B. hastwisting a limited holding about the federal government into a far-reaching imposition on the States prerogative to define and regulate marriage within their borders. Presumably that is why J.B. omitted the sentence.
4

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he makes creative use of brackets to twist the meaning of those lines in his favor. On that basis, he claims that Windsor gives him a

constitutional right to demand recognition of his Massachusetts marriage from a State that has chosen to preserve the traditional understanding of the institution. That is not a tenable reading of the Supreme Courts decision. Under the Supreme Courts reasoning, the place of celebration is not what bestows constitutional protection on same-sex relationships. Windsor was married in Canada. Under the majoritys reasoning, it was not Windsors Canadian marriage license that entitled her marriage to federal recognition. Rather, the decision of New York Windsors State of residenceto recognize her marriage gave rise to constitutional protections. Certainly nothing in the majority opinion indicates that Windsors Canadian marriage would have been entitled to federal recognition had she moved to Alabama immediately after obtaining it. Windsors case came out the way it did because she chose to reside in New York, a State which recognizes its residents same-sex marriages.

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Unlike Windsor, J.B. resides in Texas, where his marriage is not recognized. Unlike Windsor, his claim is not that the law of his state of residence entitles his Massachusetts marriage to constitutional recognition. His claim is that the law of the State where his marriage was created, Massachusetts, follows him wherever he goes and requires any State in which he resides to recognize his marriage regardless of that States marriage policies. There is no legal supportin Windsor or elsewherefor this staggering proposition. See Nevada v. Hall, 440

U.S. 410, 423-24 (1979) (Full faith and credit . . . does not . . . enable one state to legislate for the other or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it.)(citation omitted).5 *** J.B.s attempt to impose Massachusetts marriage law on Texas finds no support in Windsor. Indeed, it flies in the face of Windsors
5

The improper projection of one States laws into another would be further complicated by the absence of a residence requirement for marriage in States 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 Texass definition of marriage would be eviscerated.

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repeated affirmation of the States primary authority to define and regulate marriage. As Windsor observes, In acting first to recognize and then to allow same-sex marriages, New York was responding to the initiative of those who [sought] a voice in shaping the destiny of their own times. 133 S. Ct. at 2692 (citations and quotations omitted). The very same could be said of the decision of the people of Texas and their elected representatives, who voted overwhelmingly to affirm the traditional understanding of marriage and to recognize only marriages between one man and one woman. The people of Texas have the same right as the people of Massachusetts or New York to have a voice in shaping their States destiny. Texans have spoken clearly. Their voice commands that only the union of one man and one woman will be recognized as a marriage in Texas. This Court should reject J.B.s

invitation to substitute the rule of judges for the will of the people. The Supreme Courts decision in 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 Circuits decision and remanded with instructions to dismiss the appeal of supporters of Californias

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Proposition 8, a ballot initiative that defined marriage in California as the union of one man and one woman. The Court ruled that the

initiative supporters lacked standing to appeal the district court ruling enjoining Proposition 8 even though the state government refused to support the law. The Supreme Courts ruling does not address the

merits of the challenge to Proposition 8. It has no impact on this case. J.B.s suggestion that this Court should follow the nonprecedential district court opinion in Hollingsworth reaches too far. See, e.g., Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011) (A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case. (quoting 18 J. Moore et al., Moores Federal Practice 134.02[1][d], at 134-26 (3d ed. 2011))). Also overreaching is J.B.s conflation of the nationwide constitutional right to same-sex marriage discovered by the district court in Hollingsworth with the Supreme Courts limited holding in Windsor. As explained above, when considered in its context and read in its entirety, Windsor provides no support for the expansive constitutional rule J.B. asks this Court to impose.

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PRAYER The Court should grant the petition for review and affirm the judgment of the court of appeals.

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Respectfully submitted, 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

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