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No.

05-09-0ll70-CV

lIn tl1J~ Grourt of Appeals for t4e


lJiift4 Ju~itial Bistritt t Ballast wexas

IN THE MATTER OF THE MARRIAGE OF J.B. AND H.B.

On Appeal from the 302nd Family District Court,

Dallas County, Texas

BRIEF OF THE STATE OF TEXAS

GREG ABBOTT JAMES C. HO


Attorney General of Texas Solicitor General
State.Bar No. 24052766
C. ANDREW WEBER
First Assistant Attorney General JAMES D. BLACKLOCK
Assistant Solicitor General
DAVID S. MORALES State Bar No. 24050296
Deputy Attorney General for
Civil Litigation OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548
Austin, Texas 78711-2548
[Te1.] (512) 936-2872
[Fax] (512) 474-2697

COUNSEL FOR THE STATE OF TEXAS


IDENTITY OF PARTIES AND COUNSEL

ArPELLANTnNTERVENOR

State of Texas

Represented by:

Greg Abbott
C. Andrew Weber
David S. Morales
James C. Ho
James D. Blacklock
Office of the Attorney General
P.O. Box 12548

Austin, Texas 78711-2548

APPELLEEIPETITIONER RESPONDENT

J.B. H.B.

Represented by:

Peter A. Schulte

Schulte & Apgar, PLLC

4131 N. Central Expressway

Suite 680

Dallas, Texas 75204

James J. Scheske
Akin Gump Strauss Hauer Feld LLP
300 West 6th Street
Suite 2100
Austin, Texas 78701-3911

J. Carl Cecere
Akin Gump Strauss Hauer Feld LLP
1700 Pacific Avenue
Suite 4100
Dallas, Texas 75201-4675

11
TABLE OF CONTENTS

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . x

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. xi

Issues Presented . . . . . . . . . . . . . . . . . . .' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii

Introd '
uctlon .
1

Statement of Facts 3 .

Standard of Review 7

Summary of Argument 7

Argument 8

1. The Proper Remedy Under Texas Law For Achieving lB.'s Stated

Goal of Terminating His Invalid Marriage Is Voidance, Not Divorce .... 8

II. The Decision Below-Striking Down Texas Law As a Violation ofthe

Fourteenth Amendment-Contradicts U.S. Supreme Court Precedent ... 12

A. The U.S. Supreme Court Unanimously Upheld the Traditional

Defmition of Marriage in Baker v. Nelson (1972)-Consistent

With Established Fourteenth Amendment Principles 12

B. Baker Applies To This Case Because An Action for Divorce

Necessarily Presumes-And Indeed, Enforces the Obligations

of-a Valid Marriage 20

III. The Revised Order-Invalidating Texas Law As a Violation of

Freedom of Association and the Right to Travel-Is Likewise

Meritless. . ;..................................... . . . . . 21

IV. The Ruling Below Not Only Strikes Down Texas Law-It Invalidates

the Federal Defense of Marrlage Act Sub Silentio As Well 23

Prayer 24

111
INDEX OF AUTHORITIES

Cases

Adams v. Howerton,
486 F. SUppa 1119 (C.D. Cal. 1980) , 15

Agostini v. Felton,
521 U.S. 203 (1997) 15

Anderson v. King County,


138 P.3d 963 (Wash.2006) 16

Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971) ~ 2, 13, 15, 18

Baker v. Nelson,
409 U.S. 810 (1972) passim

Chambers V. Ormiston,
935 A.2d 956 (R.I. 2007) 20

Citizens for Equal Protection v. Bruning,


455 F.3d 859 (8th Cir. 2006) 18

Conaway v. Deane,
932 A.2d 571 (Md. 2007) 18

Dean v. Goldwire,
480 S.W.2d 494 (Tex. Civ. App.-Waco 1972, writ rei'd n.r.e.) 10

Doe v. Hodgson,
478 F.2d 537 (2nd Cir. 1973) 14

Engquistv. Oregon Dep 't ofAgric.,


128 S. Ct. 2146 (2008) 19

Esparza v. Esparza,
382 S.W.2d 162 (Tex. Civ. App.--Corpus Christi 1964, no writ) 10

IV

Faglie v. Williams,
569 S.W. 2d 557 (Tex. Civ. App.-Austin 1978, writ refd n.r.e.) 11

FCC v. Beach Commcn 's, Inc.,


508 U.S. 307 (1993) " 19

Garcia v. Garcia,
232 S.W.2d 782 (Tex. Civ. App.-San Antonio 1950, no writ) " 20

Gray v. Gray,
354 S.W.2d 948 (Tex. Civ. App.-Houston 1962, writ dism'd) .' 20

Heller v. Doe,
509 U.S. 312 (1993) 19

Hernandez v. Robles,
26 A.D.3d 98 (N.Y. App. 2005) 16

Hicks v. Miranda,
422 U.S. 332 (1975) 14

Hovious v. Hovious,
No. 02-04-169-CV, 2005 WL 555219
(Tex. App.-Fort Worth March 10,2005,
pet. denied) (mem. op.) 8,9, 10

IKB Indus. v. Pro-Line Corp.,


938 S.W.2d 440 (Tex. 1997) 5, 22

In re Estate ofBendtsen,
No. 05-08-00122-CV, 2008 WL 1886778
(Tex. App.-Dallas Apr. 30,2008, no pet.) , 22

In reKandu,
315 B.R. 123 (Bkrptcy W.D. Wash. 2004) 16, 18,20

Langan v. St. Vincent's Hosp. ofN 1':,


25 A.D.3d 90 (N.Y. App. 2005) 16

Lawrence v. Texas,
539 U.S. 558 (2003) 15

v
Littleton v. Prange,
9 S.W3d 223 (Tex. App.-San Antonio 1999, pet. denied) x, 2, 7,9, 15

Loving v. Virginia,
388 U.S. 1 (1967) 18,20

Mandel v. Bradley,
432 U.S. 173 (1977) (per curiam) 14

McConnell v. Nooner,
547 F.2d 54 (8thCir. 1976) .. , 15

Mireles v. Mireles,
No. 01-08-00499-CV, 2009 WL 884815
(Tex. App.-Houston [1st Dist.] Apr. 2, 2009,
pet. denied) (mem. op.) x, 1, 7, 9

Morrison v. Sadler,
821 N.E.2d 15 (Ind. App. 2005) . . . . . . . .. . . . . . . . . . . . .. . . . . . .. . . . . . . 16, 18

Nevada v. Hall,
440 U.S. 410 (1979) 24

Ohio ex reI. Eaton v. Price,


360 U.S. 246 (1959) 14

o 'Darling v. 0 'Darling,
188 P3d 137 (Okla. 2008) 20

Peters v. Peters,
214 N.W.2d 151 (Iowa 1974) 10

Rodriguez de Quijas v. Shearson/American Express, Inc.,


490 U.S. 477 (1989) 15

Rosengarten v. Downes,
802 A.2d 170 (Conn. App. 2002) 21

Skinner v. Oklahoma ex reI. Williamson,


316 U.S. 535 (1942) 19

VI

Small v. Harper,
638 S.W.2d 24 (Tex. App.-Houston [1st Dist.] 1982, writ refd n.r.e.) 11

Smelt v. County ofOrange,


374 F. Supp. 2d 861 (C.D. Cal. 2005,
aff'd in part, vacated in part on other grounds) 16, 18,20

Standhardt v. Superior Court,


77 P.3d 451 (Ariz. App. 2003) 18

State Oil Co. v. Khan,


522 U.S. 3 (1997) 14

Sutton v. Lieb,
342 U.S. 402 (1952) 9

Tex. Dep 't ofParks and Wildlife v. Miranda,


133 S.W. 3d 217 (Tex. 2004) 7

United States v. Hatter,


532 U.S. 557 (2001) 14

Williams v. North Carolina,


317U.S. 287 (1942) ., , 24

Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) 16, 18,24

~onstitutionalProvisions, Statutes, and Rules

U.S. CONST. art. IV, § 1 23

U.S. CONST. art. IV, § 2 6

28 U.S.c. § 1257 (1988)


Pub. L. No. 100-352, 102 Stat. 662 (1988) 14

28 U.S.C. § 1738C ·3,23

42 U.S.C. 2000e(k), Pregnancy Discrimination Act of 1978 18

Vll
TEX. CONST. art. I, § 32 xii, 6, 9, 16

TEX. CONST. art. I, § 32(a) 3,4, 12

TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) 5

TEX. CIY. PRAC. & REM. CODE § 51.014(b) 5,22

TEX. FAM. CODE § 1.003 10

. TEX. FAM. CODE § 1.103 8

TEX.FAM~CODE§3.404(b) '" 10

TEX. FAM. CODE §§ 6.001-6.008 8

TEX.FAM.CODE§§6.102-6.l11 8

TEX. FAM. CODE §§ 6.201-6.206 1,8

TEX. FAM. CODE § 6.204 xii, 6, 8, 11

TEX. FAM. CODE § 6.204 historical note


[Defense of Marriage Act, 78th Leg., R.S., ch. 124, § 2,
2003 Tex. Gen. Laws 171] 11

TEX. FAM. CODE § 6.204(b) 3, 4, 9, 12

TEX. FAM. CODE § 6.204(c) 9

TEX. FAM. CODE § 6.307 1, 8, 9

TEX. FAM. CODE § 6.501(a) 10

TEX.FAM.CODE§45.105 10

Other Authorities

Baker v. Nelson,
Jurisdictional Statement, No. 71-1027 (Oct. Term 1972) 13

Vlll
C. Wright, LAW OF FEDERAL COURTS 495 (2d ed. 1970) 14

James C. McKinley Jr.,


Texas Battle on Gay Marriage Looms, N.Y. Times, Oct. 2, 2009 4

Naylor v. Daly,
No. D-1-FM-09-000050, Respondent's Original Answer
(126th Dist. Ct., Travis County, Tex. Dec. 9,2009) 2,9

R. Stem & E. Gressman, SUPREME COURT PRACTICE, 197 (4th ed. 1969) 14

IX

STATEMENT REGARDING ORAL ARGUMENT

The legal issues presented in this case are far from novel. In fact, the questions

presented here can be answered in just two simple steps. First, it is well established that

voidance, not divorce, is the proper remedy under Texas law for tenninating any purported

marriage that is not legally valid in the State ofTexas-including same-sex relationships that

may be considered marriages in other states. And in any event, any federal constitutional

claim to the contrary is precluded by U.S. Supreme Court precedent-namely, Baker v.

Nelson, 409 U.S. 810 (1972).

These principles are so well established that the Houston court ofappeals recently set

aside a divorce that had mistakenly been granted to a same-sex couple-and did so without

oral argument, and in an unpublished opinion---eonsistent with a similar, earlier ruling ofthe

San Antonio court of appeals. See Mireles v. Mireles, No. 01-08-00499-CV, 2009 WL

884815 (Tex. App.-Houston [1st Dist.] Apr. 2, 2009, pet. denied) (mem. op.) (citing

Littleton v. Prange, 9 S.W.3d 223 (Tex. App.-San Antonio 1999, pet. denied)).

Oral argument is likewise unnecessary here. This Court should simply follow

established Texas law, as construed by other courts of appeals, reverse the decision below,

and grant the State's plea to the jurisdiction.

x
STATEMENT OF THE CASE

Nature ofthe Case: J.B. and H.B. entered into a same-sex marriage in
Massachusetts. After moving to Texas, J.B. filed for a
divorce, which H.B. did not contest. The State ofTexas
intervened to defend Texas law against an apparent
constitutional attack. The State filed a plea to the
jurisdiction, asserting that the court lackedjurisdiction to
issue a divorce because, under the Texas Constitution
and Family Code, any marriage between two persons of
the same sex is void. The State noted that the proper
legal remedy for terminating any invalid marriage is
voidance, not divorce. J.B. opposed the plea to the
jurisdiction, but in doing so, did not mention-let alone
rely on-the Fourteenth Amendment of the U.S.
Constitution.

Trial Court:
The Honorable Tena Callahan, 302nd Family District
Court, Dallas County, Texas.

Trial Court Disposition:


The court denied the State's plea to the jurisdiction on
the ground that both the Texas Constitution and Family
Code violate the Fourteenth Amendment. CR at 82. 1

I The Clerk's Record will be cited as "CR."

Xl
ISSUES PRESENTED

1. Is voidance, rather than divorce, the proper remedy under Texas law for terminating
an invalid marriage between persons of the same sex?

2. Is Texas law limiting the legal institution of marriage-including the remedy of


divorce-to the union of one man and one woman consistent with the U.S.
Constitution?

a. In invalidating Article I, § 32 of the Texas Constitution and § 6.204 of the


Family Code as a violation ofthe Fourteenth Amendment, did the court below
overrule, sub silentio, Baker v. Nelson, 409 U.S. 810 (1972)?

b. By recognizing a same-sex marriage granted by another state, did the court


below invalidate, sub silentio, the federal Defense ofMarriage Act, as well as
Texas law?

xu
No.05-09-01170-CV

1Ju tl1J~ oro·uri of 1\pp~nls for tl1~


1J1iftl1 3luilirinl ilistrirt ilnllns w~*as
t t

IN THE MATTER OF THE MARRIAGE OF lB. AND H.B.

On Appeal from the 302nd Family District Court,

Dallas County, Texas

BRIEF OF THE STATE OF TEXAS

J.B. has consistently maintained that he brought this action for a purely personal

reason-to tenninate his invalid marriage with H.B. He has explicitly disclaimed any

objective to establish same-sex marriage in Texas. Likewise, the State of Texas has

consistently maintained that Texas law already provides for an appropriate procedure for

achieving the stated goal of this litigation: voidance of the marriage.

Voidance is the established remedy for terminating an invalid marriage under the

Texas Family Code. See TEX. FAM. CODE §§ 6.201-6.206, 6.307. Voidance is appropriate

where the parties marry based on a mistaken beliefthat they properly terminated a previous

marriage; where the parties are underage or too closely related to one another to marry under

Texas law; and, as here, where the parties' marriage is invalid because they are of the same

sex. In fact, courts of appeals in both Houston and San Antonio have previously indicated

that marriages between two people of the same sex are void. See Mireles Y. Mireles, No.

01-08-00499-CV, 2009 WL 884815 (Tex. App.-Houston [1st Dist.] Apr. 2, 2009, pet.
denied) (mem. op.) (citing Littleton v. Prange, 9 S.W.3d 223 (Tex. App.-San Antonio 1999,

pet. denied)). Similarly, a woman recently requested voidance of her Massachusetts same­

sex marriage in a Travis County district court. See Naylor v. Daly, No. D-l-FM-09-000050,

Respondent's Original Answer (126th Dist. Ct., Travis County, Tex. Dec. 9, 2009).

But rather than accept the State's suggestion of voidance as the proper means for

achieving the stated goal of this litigation, the district court instead reached out to address

a federal constitutional claim no one in this case even mentioned, let alone briefed-striking

down the traditional defInition of marriage as a violation of equal protection.

In doing so, the district court overturned U.S. Supreme Court precedent. Over three

decades ago, the U.S. Supreme Court unanimously rejected attacks on the traditional

defInition ofmarriage under the Fourteenth Amendment. See Baker v. Nelson, 409 U.S. 810

(1972), aff'g 191 N.W.2d 185 (Minn. 1971).

Baker remains the law of the land to this day-as courts in Texas and across the

country have recognized. See, e.g., Littleton, 9 S.W.3d at 225-26 (citing Baker).

Accordingly, no court anywhere in the nation has ever struck down the traditional defInition

of marriage as a violation of the Fourteenth Amendment-until now.

It makes no difference that this case involves an attempt to enter into a same-sex

divorce, rather than a same-sex marriage. The reason is simple: An action for divorce

necessarily presumes a valid marriage. After all, divorce is an action to enforce legal

obligations of marriage after the parties have decided to part company.

Moreover, the ruling below not only invalidates both the Texas Constitution and

Family Code-it invalidates the federal Defense ofMarriage Act as well. See 28 U.S.C. §

l738C. That Act makes clear that states need not recognize, or enforce the benefits and

obligations of, a same-sex marriage entered in another state. Yet the court below construed

the U.S. Constitution to impose precisely such a requirement.

In sum, the decision below was uninvited, unnecessary, incorrect, and impermissible.

It is incorrect in light ofthe U.S. Supreme Court's decision in Baker; impermissible because

only the U.S. Supreme Court has the power to overrule its own precedent; uninvited by any

of the parties in this case; and unnecessary because Texas law already provides a proper

remedy for ending a void marriage. The Court should reverse the decision below and grant

the State's plea to the jurisdiction.

STATEMENT OF FACTS

On September 22, 2006, J.B. and H.B. entered into a same-sex marriage m

Massachusetts under the laws of that state. In 2008, they moved to Dallas County, Texas.

CR at 8, 32. J.B. subsequently filed an uncontested Petition for Divorce in the 302nd Family

District Court in Dallas County on January 21,2009. [d. at 5.

The State of Texas intervened in order to defend both Article I, § 32(a) of the Texas

Constitution and § 6.204(b) ofthe Family Code-----.:-both ofwhich defme marriage as the union

of one ~an and one woman-against what it perceived to be an apparent constitutional

attack. CR at 13. No one opposed the State's right to intervene to defend Texas law.

The State filed a plea to the jurisdiction, arguing that Texas courts lack jurisdiction

to grant divorce to same-sex couples under both Article I, § 32(a) of the Texas Constitution

and § 6.204(b) ofthe Family Code. The State instead suggested voidance as a proper remedy

for terminating a same-sex marriage. CR at 22,24,47. In response, J.B. disagreed with the

State's interpretation of Texas law regarding the proper scope of divorce. Id. at 33-37.

Not once did lB. even mention-let alone suggest that any provision of Texas law

is invalidunder-the Fourteenth Amendment. To the contrary, J.B. expressly conceded that

"a marriage between members ofthe same sex attempted under the laws ofthe State ofTexas

would be void." Id. at 35. He also stated that he brought this action, not to "enter a debate

on same-sex marriage," but simply to "terminate [his] relationship" with H.B. Id.

On October 1,2009, the district court issued a one-page Order on Intervenor's Plea

to the Jurisdiction. Id at 82. The order did not address any ofthe issues actually litigated by

the parties-such as the scope and availability ofdivorce under Texas law. Instead, the order

ruled-sua sponte and without briefing-that Texas law "violates the right to equal

protection and therefore violates the 14th Amendment to the United States Constitution."

Id. at 82. The district court's order also ruled-sua sponte and without briefing-that "the

Intervention filed by the Office of the Attorney General is hereby stricken." Id.

After the ruling, counsel reiterated that J.B. "had not sought to challenge the state's

ban on same-sex marriage." James C. McKinley Jr., Texas Battle on Gay Marriage Looms,

N.Y. Times, Oct. 2, 2009, at AB.

The State filed a Notice of Appeal the following day, id. at 85, invoking its statutory

right to an interlocutory appeal of any order denying a plea to the jurisdiction filed by the

State. See TEX. CIV. PRAC. & REM. CODE § 51.0l4(a)(8). In light of the language in the

order regarding intervention, the State also filed a conditional petition for a writ of

mandamus in this Court to preserve its right to pursue its appeal. See In re State ofTexas,

No.05-09-0l208-CV. This Court consolidated the mandamus action with this appeal on

October 28.

The filing ofthe State's October 2 appeal automatically stayed all proceedings in the

district court as a matter oflaw. TEx. CIV. PRAC. & REM. CODE § 51.014(b).

Despite the automatic stay, however, two weeks later, on October 20, J.B. (represented

by new counsel) asked the district court to approve a briefmg schedule so that the parties

could propose findings of fact and conclusions oflaw. App. Tab 1.2 Under that scheduling

order, J.B. would be required to propose findings of fact by October 30. Id.

The State responded by observing that J.B.'s request was barred, not only by the

automatic stay, but also by Texas Supreme Court precedent holding that courts may not enter

fmdings of fact and conclusions of law when (as here) the only issues in dispute are legal,

rather than factual. App. Tab 2. See also IKE Indus. v. Pro-Line Corp., 938 S.W.2d 440

(Tex. 1997). The district court took no action on the proposed briefmg schedule.

2 Documents related to J.B.'s request, and the Court's entry, of findings of fact and
conclusions of law are included in the appendix to this brief. Because they were filed after this
appeal was perfected, in violation of the automatic stay, these documents are not contained in the
clerk's record.

5
Notwithstanding the district court's inaction, a month later, on November 20, J.B.

submitted not only proposed fmdings offact and conclusions oflaw, but also a revised order

on the State's plea to the jurisdiction. App. Tab 3.

Without notifying the State, and notwithstanding the automatic stay pending

interlocutory appeal, the district court adopted in their entirety both the proposed revised

order and findings on December 7---eleven days before the State's deadline to file its

opening brief in this appeal. App. Tab 4. The parties subsequently agreed to delay the

briefmg schedule in this Court.

The revised order and proposed findings altered the district court's original October

I ruling in several ways. To begin with, the revised order did not include the court's

previous holding invalidating Article 32, § I ofthe Texas Constitution under the Fourteenth

Amendment. Compare CR at 82 with App. Tab 4. And with respect to § 6.204 ofthe Family

Code, the revised order added four new bases for invalidation, separate and apart from equal

protection: the Due Process Clause of the Fourteenth Amendment; freedom of association

under the First Amendment; the right to travel under the Privileges and Immunities Clause

of Article IV, § 2; and the right to travel under the Privileges or Immunities Clause of the

Fourteenth Amendment. Id.

As with the original order, none of the claims endorsed in the revised order was

previously mentioned, let alone pressed, by either lB. or H.B Nor did the district court give

the State the opportunity to submit briefing or otherwise take any action to defend the Texas

Constitution and Texas law against attack.

6
STANDARD OF REVIEW

The denial of the Stilte's plea to the jurisdiction is subject to de novo review by this

Court. Tex. Dep't ofParks and Wildlife v. Miranda, 133 S.W. 3d 217,226 (Tex. 2004).

SUMMARY OF ARGUMENT

The legal issues presented in this case are far from novel. In fact, the questions

presented here can be answered in just two simple steps.

First, it is well established that voidance, not divorce, is the proper remedy under

Texas law for terminating any invalid marriage-including, but certainly not limited to,

invalid marriages between two individuals of the same sex. And in any event, any federal

constitutional claim to the contrary is precluded by U.S. Supreme Court precedent-namely,

Baker v. Nelson, 409 U.S. 810 (1972).

Indeed, these principles are so well established that the Houston court of appeals

recently set aside a divorce mistakenly granted to a same-sex couple-consistent with a

similar, earlier ruling of the San Antonio court of appeals. See Mireles, 2009 WL 884815

(citing Littleton, 9 S.W.3d 223).

In Baker, the Court rejected a constitutional claim for same-sex marriage, not divorce.

But Baker nevertheless applies with equal force here because an action for divorce

necessarily presumes-and is brought to enforce the obligations of-a valid marriage.

By striking down Texas law, and recognizing a same-sex marriage entered in another

state for purposes of issuing a divorce, the court below not only contradicted Baker. It

effectively invalidated the federal Defense of Marriage Act as well. The decision below

should be reversed, and the State's plea to the jurisdiction should be granted.

ARGUMENT

I. THE PROPER REMEDY UNDER TEXAS LAW FOR ACIllEVING J.B. 's STATED GoAL
OF TERMINATING HIS INVALID MARRIAGE Is VOIDANCE, NOT DIVORCE.

The Texas Family Code provides three mechanisms for dissolving a marriage:

divorce, annulment, and voidance. See TEX. FAM. CODE § 6.001 et. seq. (chapter titled "Suit

for Dissolution ofMarriage" divided into subchapters addressing each dissolution remedy).

Legally valid marriages are terminated through divorce. Id. §§ 6.001-6.008. Annulment

terminates voidable marriages, which suffer certain legal defects but have the force of law

unless annulled. Id. §§ 6.102-6.111. And suits to declare a marriage void provide for the

termination of void marriages, which never have the force of law. Id. § 6.307 (establishing

an action for voidance); ide §§ 6.201-6.206 (grounds for voidance).

Voidance is the proper remedy, for example, where individuals marry based on a

mistaken beliefthat they properly terminated a previous marriage. See ide § 6.202; Hovious

v. Hovious, No. 02-04-1 69-CV, 2005 WL 555219 (Tex. App.-Fort Worth March 10,2005,

pet. denied) (mem. op.). It is also the proper remedy where the parties are underage or too

closely related to one another to legally marry in the State of Texas. See TEX. FAM. CODE

§§ 6.201, 6.205, 6.206. And it is the proper remedy where the parties are of the same sex.

See ide § 6.204. After all, a same-sex marriage is void in Texas, even if it was valid in the

state where it was granted. Id. § 1.103 ("The law of this state applies to persons married

elsewhere who are domiciled in this state."); id. § 6.204(c) (a same-sex marriage originating

"in this state or in any other jurisdiction" not recognized).

Accordingly, courts ofappeals in both Houston and San Antonio have recognized that

voidance is the proper remedy in Texas for terminating invalid marriages between two people

ofthe same sex. Prior to the enactment ofthe Family Code provision categorizing same-sex

marriages as void, the San Antonio court of appeals declared a marriage between two men

invalid and void based on an examination of English law and prior American authority.

Littleton, 9 S.W.3d at 231. More recently, the Houston court ofappeals invalidated a divorce

decree that had previously been granted to two men. Mireles, 2009 WL 884815. Relying

on Littleton as well as Article I, § 32 ofthe Texas Constitution and § 6.204(b) ofthe Family

Code, the court in Mireles declared the parties' marriage void, and 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." Mireles at *2.

Similarly, an Austin woman who married another woman in Massachusetts recently

asked a Travis County court to void her marriage. See Naylor v. Daly, No. D-I-FM-09­

000050, Respondent's Original Answer (126thDist. Ct., Travis County, Tex. Dec. 9,2009).

Under the Family Code, "[a]ny party to a void marriage may sue to have the marriage

declared void." TEX. F AM. CODE § 6.307. A declaration that a marriage is void legally

terminates the relationship. See, e.g., Hovious, 2005 WL 555219, at *6. A court order

terminating a marriage on the basis of its legal invalidity is effective in all 50 states. Cf

Sutton v. Lieb, 342 U.S. 402,408 (1952) ("New York['s] decree annulling the marriage ...

is entitled to full faith throughout the Nation"); Peters v. Peters, 214 N.W.2d 151, 155 (Iowa

1974) ("[W]e give full faith and credit to the Texas annulment decree").

Moreover, parties to a suit to declare a marriage void can request and obtain many

additional elements of relief, beyond termination of the marital relationship, typically

associated with divorce. See TEX. FAM. CODE § 1.003 (defining "suit for dissolution of

marriage," as used throughout the Family Code, to include suits to declare a marriage void).

For example, temporary restraining orders may be requested during the pendency of

voidance proceedings. [d. § 6.50l(a). Name changes are available, id. § 45.105, as are

. claims for economic contribution, in which one party can request payment for his share of

the equity in property owned by the other party, id. § 3 A04(b). Finally, voidance also allows

for the division of property-albeit often based on different rules than divorce. While the

Family Code "does not expressly provide any guidance as to the disposition of property

remaining after a marriage has been declared void, case law recognizes that, in one way or

another, some disposition is required." Hovious, 2005 WL 555219 at *6 (citing Dean v.

Goldwire, 480 S.W.2d 494,496 (Tex. Civ. App.-Waco 1972, writ refd n.r.e.» (holding

that, at the very least, property acquired during a void marriage should be divided "in

proportion to the value [each party's] labor contributed to the acquisition ofit"). Although

community property rules generally do not apply to void marriages, courts often employ

equitable means to divide property acquired during a void marriage. See Esparza v. Esparza,

382 S.W.2d 162, 168 (Tex. Civ. App.--Corpus Christi 1964, no writ) (property jointly

acquired during a legally invalid marriage should be divided based on each party's

10

contribution to the property); Faglie v. Williams, 569 S.W. 2d 557 (Tex. Civ. App.-Austin

1978, writ refd n.r.e.) (using equitable theories of trust law to divide property acquired

during legally invalid marriage); Small v. Harper, 638 S.W.2d 24,28 (Tex. App.-Houston

[1st Dist.] 1982, writ refd n.r.e.) (holding that property comingled during same-sex

relationship described by one party as a "marriage-type relationship" could be divided under

principles of equity and contract law).

In addition, the Texas Legislature recently reaffIrmed that Texas law affords

individuals many opportunities to secure their rights outside the institution of marriage,

through private contracts and other arrangements. See Tex. Fam. Code § 6.204 historical

note [Defense of Marriage Act, 78th Leg., R.S., ch. 124, § 2, 2003 Tex. Gen. Laws 171]

("The legislature fInds that through the designation ofguardians, the appointment ofagents,

and the use ofprivate contracts persons may adequately and properly appoint guardians and

arrange rights relating to hospital visitation, property, and the entitlement to proceeds oflife

insurance policies without the existence of any legally recognized familial relationship

between the persons.").

There is no apparent reason why voidance would not fully achieve the only stated goal

ofthis litigation-termination ofthe marriage ofJ.B. andH.B. Cf CRat6 (stating thatJ.B.

and H.B. intend to "enter an agreement for the division of their estate"). In all events,

voidance is the long-established, time-tested vehicle for formally terminating marriages that

are invalid under Texas law. It should be used here as well.

11

II. TIlE DECISION BELOW-STRIKING DOWN TEXAS LAW As A VIOLATION OF THE


FOURTEENTH AMENDMENT--CONTRADICTS U.S. SUPREME COURT PRECEDENT.

Instead of recognizing that voidance is the proper remedy under Texas law for

achieving the stated goal of this litigation, the court below unilaterally opted to decide a

federal constitutional issue no one asked it to address. The court sua sponte (and incorrectly)

held that both Art. I, § 32(a) of the Texas Constitution and § 6.204(b) of the Family Code

"violate[] the right to equal protection and therefore violate[] the 14th Amendment to the

United States Constitution"-a holding that would likewise condemn other federal and state

statutes around the nation that defme marriage as the union ofone man and one woman. CR

at 82.

This ruling was not only uninvited. It was also impermissible because it contradicts

binding U.S. Supreme Court precedent, which only the U.S. Supreme Court may overturn.

A. The U.S. Supreme Court Unanimously Upheld the Traditional Definition


of Marriage in Baker v. Nelson (1972}--Consistent With Established
Fourteenth Amendment Principles.

Decades ago, the U.S. Supreme Court unanimously rejected the claim now endorsed

by the district court-that the Fourteenth Amendment somehow requires states to recognize

same-sex marriages.

In Baker v. Nelson, 409 U.S. 810 (1972), two men claimed that Minnesota law

defining marriage as the union ofone man and one woman violated the Equal Protection and

Due Process Clauses of the Fourteenth Amendment, as well as other provisions of the U.S.

Constitution. The Minnesota Supreme Court unanimously rejected the claims, holding that

12

deftning marriage as the union ofone man and one woman (1) "is no[t] irrational or invidious

discrimination" under the Equal Protection Clause, and (2) does not deny any right protected

by the Due Process Clause. See Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn. 1971).

The plaintiffs appealed to the u.s. Supreme Court, again claiming violations ofboth

Due Process and Equal Protection. Bakerv. Nelson, Jurisdictional Statement, No. 71-1027

(Oct. Term 1972), App. Tab 5 at 3. In doing so, the plaintiffs presented two distinct theories.

To begin with, they maintained that "[t]he right to marry is itselfa fundamental interest, fully

protected by ... the Fourteenth Amendment." [d. at 11. See also id. at 6 (claiming right to

"formal legal sanctiftcation or ratiftcation of their marital relationship").

But notably, the plaintiffs also presented a second, distinct theory of relief-namely,

that "[i]n addition" to the "right to marry ... itself," there are also "signiftcant property

interests [that] flow from the legally ratifted marital relationship," and that those property

interests are "also protected by the due process clause." [d. at 11. The plaintiffs urged that

"marriage comprises a bundle ofrights and interests." [d. at 12. And they went on to detail

several examples-including inheritance and property beneftts, tax beneftts, government

beneftts, such as veterans beneftts and public housing, marital privileges against testifying

in court, and the right to sue under wrongful death statutes. [d. at 11-12.

.The U.S. Supreme Court unanimously rejected the plaintiffs' appeal and, in a 9-0

decision, affirmed the ruling of the Minnesota Supreme Court in a summary disposition.

Speciftcally, the U.S. Supreme Court ordered that the "[a]ppeal from Sup. Ct. Minn. [be]

dismissed for want ofsubstantial federal question," 409 U.S. 81 o-a common Court practice

13

prior to 1988, when the U.S. Supreme Court was statutorily required to hear all appeals from

state supreme court rulings presenting federal constitutional questions. See 28 U.S.C. § 1257

(1988); Pub. L. No. 100-352, 102 Stat. 662 (1988) (removing mandatory jurisdiction over

state supreme court decisions on federal constitutional issues).

A summary dismissal for want ofa substantial federal question is a precedential ruling

on the merits-binding on all state and lower federal courts. See Mandel v. Bradley, 432

U.S. 173, 176 (1977) (per curiam). "As Mr. Justice Brennan once observed, '[v]otes to

affmn summarily, and to dismiss for want of a substantial federal question, it hardly needs

comment, are votes on the merits of a case.'" Hicks v. Miranda, 422 U.S. 332, 344 (1975)

(quoting Ohio ex rei. Eaton v. Price, 360 U.S. 246, 247 (1959) (Brennan, J.)). See also

Hicks, 422 U.S. at 344 (quoting R. Stem & E. Gressman, SUPREME COURT PRACTICE, 197

(4th ed. 1969) ("The Court is ... deciding a case on the merits, when it dismisses for want

of a substantial question"); Hicks, 422 U.S. at 344 (quoting C. Wright, LAW OF FEDERAL

COURTS 495 (2d ed. 1970)) ("Summary disposition ofan appeal, ... either by affmnance or

by dismissal for want of a substantial federal question, is a disposition on the merits").

And of course, only the U.S. Supreme Court has the "prerogative ... to overrule one

of its precedents." State Oil Co. v.Khan, 522 U.S. 3,20 (1997). See also United States v.

Hatter, 532 U.S. 557, 567 (2001) (same). As a result, "the lower courts are bound by

summary decisions by th[e Supreme] Court 'until such time as the Court informs (them) that

(they) arenot.'" Hicks, 422 U.S. at 344-45 (quotingDoev. Hodgson, 478 F.2d537, 539 (2nd

Cir. 1973)). Even "[i]fa precedent of this Court has direct application in a case, yet appears

14

to rest on reasons rejected in some other line of decisions, [lower courts] should follow the

case which directly controls, leaving to this Court the prerogative of overruling its own

decisions." Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484

(1989). See also Agostini v. Felton, 521 U.S. 203, 238 (1997) (same).

Baker has not been overturned. Ifanything, recent rulings ofthe U.S. Supreme Court

have gone out of their way not to revisit (let alone overturn) Baker. For example, in

Lawrence v. Texas, 539 U.S. 558 (2003), the majority expressly refused to revisit "whether

the government must give formal recognition to any relationship that homosexual persons

seek to enter." Id. at 578. Not one justice in the majority signaled otherwise. Moreover,

Justice 0' Connor went out ofher way to reaffIrm that "Texas [has a] legitimate state interest

[in] preserving the traditional institution ofmarriage." Id. at 585 (O'Connor, J., concurring).

Accordingly, Baker remains good law to this day-binding precedent that all state and

federal courts are required to obey. As a result, most courts in Texas and across the nation

have recognized that Baker remains controlling and thus requires courts to reject any

Fourteenth Amendment claim challenging any aspect of the traditional definition of

marriage-including various legal benefits ofmarriage. See, e.g. , Littleton, 9 S.W.3dat225­

26 (noting that courts have "soundly reject[ed] the concept of same-sex marriages," citing,

inter alia, "Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), aff'd, 409 U.S. 810,

93 S.Ct. 37, 34 L.Ed.2d 65 (1.972)"). See also McConnell v. Nooner, 547 F.2d 54,56 (8th

Cir. 1976) (denying claim for spousal veterans benefits to same-sex couple because Baker

already decided the issue); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980)

15

(finding Baker dispositive on the question of whether same-sex couple with a Colorado
marriage license were entitled to spousal immigration benefits); Wilson v. Ake, 354 F. Supp.

2d 1298, 1304-05 (M.D. Fla. 2005) (dismissing claim that Florida must recognize' a

.Massachusetts marriage because Baker "is binding precedent upon this Court"); Langan v.

St. Vincent's Hasp. ofN. 1':,25 A.D.3d 90,94 (N.Y. App. 2005) ("Based on ... Baker ... we

agree ... that purported homosexual marriages do not give rise to any rights [ofsurvivorship]

and that no constitutional rights have been abrogated or violated in so holding.") (citations

omitted); Morrison v. Sadler, 821 N.E.2d 15, 19-20 (Ind. App. 2005) (describing Baker as

"binding United States· Supreme Court precedent indicating that state bans on same-sex

marriage do not violate the United States Constitution"); Hernandez v. Robles, 26 A.D.3d

98, 115 (N.Y. App. 2005) ("Plaintiffs equal protection claim is foreclosed by the Supreme

Court's summarydispositioninBakerv. Nelson."); Anderson v. King County, 138 P.3d 963,

999 (Wash. 2006) ("[In Baker,] the same-sex union as a constitutional right argument was

so frivolous as to merit dismissal without further argument by the Supreme Court"). But see

Smelt v. County ofOrange, 374 F. Supp. 2d 861 (C.D. Cal. 2005, ajJ'd in part, vacated in

part on other grounds) (rejecting claim on the merits); In re Kandu, 315 B.R. 123 (Bkrptcy

W.D. Wash. 2004) (same).

Not surprisingly, then, no court anywhere in the nation has ever struck down the

traditional definition ofmarriage as a violation of the Fourteenth Amendment-until now. 3

3 To be sure, some state courts have found a right to same-sex marriage under their respective
state constitutions-a result that Texas voters have already precluded by amending the Texas
Constitution. See TEx. CONST. art. I, § 32. But no state court has ever reached that result based on

16

***

Baker remains good law to this day, because the traditional institution of marriage is

entirely consistent with established Fourteenth Amendment principles.

Throughout the course of one's life, an individual may enter into any number of

worthwhile and life-affmning relationships-including any number ofpersonal friendships,

professional relationships with mentors and colleagues, and relatioriships with neighbors and

fellow members of the community-to which the State gives no legal force or recognition.

As a result, promises and commitments made within the context of those relationships are

left to private ordering and social sanction-not judicial enforcement.

This is not, of course, because the State wishes to disparage such relationships. It is

simply because, in light oElimited resources, and consistent with basic principles oElimited

government, society has seen fit not to direct government energy and attention toward the

regulation and enforcement of such relationships.

. Marriage is different. Throughout centuries of human history and. across diverse

human civilizations, societies have recognized-and their governments have given legal

effect and enforcement to--the institution of marriage as the union of one man and one

woman. And the reason is neither complicated nor controversial: The naturally procreative

relationship between a man and a woman deserves special societal support and

the U.S. Constitution, until now. Individual judges of the U.S. Court of Appeals for the Ninth
Circuit have refused to give effect to the federal Defense of Marriage Act with respect to certain
federal judicial employee benefit claims, but those actions were issued pursuant to the judges'
administrative, rather than judicial, duties-and thus have no legal, let alone precedential, effect.

17

protection-both to encourage procreation (without which society cannot sirrvive), and to

increase the likelihood that children will be raised by both oftheir parents, within the context

of stable, long-tenn relationships-interests that are uniquely served through governmental

recognition and enforcement of the union of one man and one woman.

Thus, the U.S. Supreme Court has repeatedly (and, as in Baker, unanimously) noted

that "[m]arriage and procreation are fundamental to the very existence and survival of the

[human] race." Skinnerv. Oklahoma ex rei. Williamson, 316 U.S. 535, 541 (1942). See also

Loving v. Virginia, 388 U.S. 1, 12 (1967) ("Marriage is ... fundamental to our very existence

and survival."); Baker, 191 N.W.2d at 186 (describing "[t]he institution of marriage as a

union ofman and woman, uniquely involving the procreation and rearing ofchildren within

a family"),aff'd, 409U.S. 810. And numerous state and lower federal courts have concluded

likewise. See, e.g., Citizensfor Equal Protection v. Bruning, 455 F3d 859, 866-67 (8th Cir.

2006); Wilson, 354F. Supp. 2dat 1307-8; Smelt, 374 F. Supp. 2d at 879; Kandu, 315 B.R.

at 144; Morrison, 821 N.E. 2d 15; Standhardt v. Superior Court, 77 P.3d 451, 146 (Ariz.

App. 2003); Conaway v. Deane, 932 A.2d 571,629-34 (Md. 2007).

In sum, the legal institution of marriage is about biology, not bigotry-much like the

federal Pregnancy Discrimination Act of 1978,42 U.S.C. 2000e(k), which protects women,

not because government favors women over men, but because of basic biological realities

about the nature of pregnancy and procreation. (To be sure, the State does not limit the

institution ofmarriage to fertile unions ofone man and one woman. But requiring evidence

18

of fertility as a condition of marriage would be inconsistent with longstanding traditions

respecting privacy.)

Properly understood, then, the institution of marriage as defined in the Texas

Constitution and Family Code is fully consistent with established Fourteenth Amendment

principles. "When those who appear similarly situated are nevertheless treated differently,

the Equal Protection Clause requires at least a rational reason for the difference." Engquist

v. Oregon Dep't ofAgric., 128 S. Ct. 2146, 2153 (2008) (emphasis added).

The traditional definition ofmarriage satisfies basic principles ofequal protection on

several levels. To begin with, no other kind of relationship is "similarly situated" to the

naturally procreative relationship between one man and one woman. And in any event,

rational basis review is "a paradigm ofjudicial restraint," under which courts must apply "a

strong presumption ofvalidity" to the challenged statute. FCC v. Beach Commcn 's, Inc., 508 .

U.S. 307, 314 (1993). "[T]he burden is on the one attacking the legislative arrangement to

negat[]e every conceivable basis which might support it." Heller v. Doe, 509 U.S. 312, 320

(1993) (quotations omitted).

The traditional definition of marriage easily satisfies this higWy deferential standard

of review. The reason why government provides unique support and enforcement of the

union of one man and one woman (namely, to encourage procreation and to protect child­

rearing) is more than "rational"-it is "fundamental" under established precedent. See

Skinner, 316 U.S. at 541 ("[m]arriage and procreation arefundamental to the very existence·

19

and survival of the race") (emphasis added); Loving, 388 U.S. at 12 ("Marriage is ...

fundamental to our very existence and surviva1.") (emphasis added).

The same analysis indicates that marriage fully satisfies established Due Process

principles as well. See also Smelt, 374 F. Supp. 2d at 877-80 (applying identical rational

basis analysis in rejecting both equal protection and due processclaims for legal recognition

of same-sex relationship); Kandu, 315 B.R. at 138-48 (same).

Accordingly-and although people of good faith may reasonably differ on sensitive

issues ofsocial policy-states are well within their constitutional authority to define marriage

as the union of one man and one woman, as Baker expressly guarantees.

B. Baker Applies To This Case Because An Action for Divorce Necessarily


Presumes-And Indeed, Enforces the Obligations of-a Valid Marriage.

Baker applies with full force to this case, for one simple reason: It is a matter ofblack

letter law that "[a] suit for divorce presumes a valid marriage." Gray v. Gray, 354 S.W.2d

948, 949 (Tex. Civ. App.-Houston 1962, writ dism'd). See also Garcia v. Garcia, 232

S.W.2d 782, 783 (Tex. Civ. App.-San Antonio 1950, no writ) (same).

Indeed, courts around the country have routinely held that state laws banning same-sex

marriage likewise forbid courts from granting divorce on the basis of a same-sex marriage.

See, e.g., Chambers v. Ormiston, 935 A.2d 956, 960-63 (R.!. 2007) (Rhode Island law

authorized Family Court to grant "divorce from the bond of marriage," and thus did not

permit divorce of same-sex couple married in Massachusetts because relationship was not

a marriage in Rhode Island); 0 'Darling v. o 'Darling, 188 P.3d 137, 139 (Okla. 2008) (trial

20

court was correct to vacate divorce decree upon discovery that the underlying marriage was

between two women and therefore void under Oklahoma law); Rosengarten v. Downes, 802

A.2d 170, 174-75 (Conn. App. 2002).(refusing to dissolve civil union entered in Vermont on

the ground that it is "not a marriage recognized" under Connecticut law "because it was not

entered into between a man and a woman").

After all, the entire purpose and function ofdivorce is to enforce legal obligations of

marriage in the event that the parties have decided that they no longer wish to be married to

one another. In simple terms, divorce is the enforcement mechanism for marriage-much

as breach of contract suits are the enforcement mechanism for contracts.

In sum, there is no wayto reconcile the district court's decision below with the U.S.

Supreme Court's decision in Baker. Either the Fourteenth Amendment allows states to limit

the institution of marriage-including the enforcement mechanism of divorce--to the

naturally procreative union of one man and one woman, or it does not. And Baker makes

clear that the traditional defInition of marriage is consistent with the Fourteenth

Amendment-a ruling that is binding on all other courts.

III. THE REVISED ORDER-INVALIDATING TEXAS LAW ASA VIOLATION OF FREEDOM


OF ASSOCIATION AND THE RIGHT TO TRAVEL-Is LIKEWISE MERITLESS.

Unlike the Fourteenth ~endment claim in the original order below, the additional

federal constitutional claims adopted in the district court's revised order were not addressed

in, and thus are not precluded by, Baker. But the claims are meritless all the same.

21

To begin with, the court below had no authority to issue the revised order in the fIrst

place, nor the fmdings offact and conclusions oflaw that accompanied them, because doing

so violated the automatic stay that took effect the moment the State flIed its notice ofappeal.

TEX. CIV. PRAC. & REM. CODE § 51.0 14(b). Moreover, under Texas Supreme Court

precedent, district courts may not enter fmdings of fact and conclusions of law, and courts

ofappeal may not consider them, where there has been no evidentiary hearing and the dispute

is purely legal, rather than factual, in nature. See, e.g., IKE Indus. v. Pro-Line Corp., 938

S.W.2d 440,443 (Tex. 1997) ("fmdings and conclusions can have no purpose and should not

be requested, made, or considered on appeal," where there is no evidentiary dispute and

where "judgment [is] rendered as a matter of law"); In re Estate of Bendtsen, No.

05-08-00122-CV,2008WL 1886778 at*l (Tex. App.-DallasApr. 30,2008,nopet.) (mem.

op.) ("A request for findings of fact and conclusions of law is not proper when a ruling is

made from a non-evidentiary hearing."). See also App. Tab 2.

And in any event, the new claims-freedom of association under the First

Amendment, and· the right to travel under both Article IV, Section 2 and the Fourteenth

Amendment-are constitutionally meritless. See App. Tab 4. Texas law in no way prevents

J.B. from associating with H.B. or any other person. It simply refuses to extend legal

enforcement to promises and commitments made within the context ofpersonal relationships

outside the legal institution ofmarriage. That does not mean, ofcourse, that the Statehas in

any way infringed on one's freedom to associate and enter into relationships other than

mamage.

22
Nor does Texas law interfere with the right to travel across state lines. It does not

treat J.B. any differentlyjust because he previously lived in Massachusetts. Texas law limits

the benefits and obligations of marriage to the union of one man and one woman, but it

applies that principle with equal force to native and newly arrived Texans alike.

IV. THE RULING BELOW NOT ONLY STRIKES DOWN TEXAS LAW-IT INVALIDATES
THE FEDERAL DEFENSE OF MARRIAGE ACT SUB SILENTIO As WELL.

The ruling below cannot be reconciled with-and thus implicitly invalidates-the

federal Defense of Marriage Act.

Under the Act, "[n]o State ... shall be required to give effect to any public act, record,

orjudicial proceeding ofany other State ... respecting a relationship between persons ofthe

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. No court in the nation has ever

refused to enforce this provision-and required one state to recognize and give enforcement

to a same-sex marriage granted in another state-until now.

This conflict between the decision below and the federal Defense ofMarriage Act is

unavoidable-and provides yet another basis for reversing the ruling below-because the Act

is plainly constitutional. Specifically, the Full Faith and Credit Clause of the U.S.

Constitution expressly authorizes Congress to "prescribe" the "Effect" that the "Acts,

Records and Proceedings" of one state shall have in other states. U.S. CONST. art. IV, § 1.

Ifanything, the Defense ofMarriage Act merely codifies what the Constitution itself

already provides-that the Full Faith and Credit Clause does not require one state to

23

recognize same-sex marriages granted by another state. As the U.S. Supreme Court has made

clear, the Full Faith and Credit Clause "does not ... enable one state to legislate for another

or to project its laws across state lines." Nevada v. Hall, 440 U.S. 410,423-24 (1979). Nor

can it "compel the courts ofone state to subordinate the local policy ofthat state, as respects

its domiciliaries, to the statutes of any other state." Williams v. North Carolina, 317 U.S.

287,296 (1942). The Defense of Marriage Act simply applies these established Full Faith

and Credit principles within the specific context ofsame-sex marriage. See, e.g., Wilson, 354

F. Supp. 2d at 1303 ("Congress' actions in adopting DOMA are exactly what the Framers

envisioned when they created the Full Faith and Credit Clause.").

***
In a one-page order, the district court not only substituted its own policy judgment,

on a matter ofgreat public interest, for that ofthe Texas Legislature, Texas voters, the United

States Congress, and the U.S. Supreme Court. It did so for no reason. No party requested

this order. And no party needs this order, because voidance achieves the stated goal of this

litigation-the legal termination ofthe Massachusetts marriage between J.B. and H.B. The

Court should reverse the decision below, and grant the State's plea to the jurisdiction.

PRAVER

For the foregoing reasons, the Court should reverse the decision below and grant the

State's plea to the jurisdiction.

24

Respectfully submitted,

GREG ABBOTT
Attorney General ofTexas

C. ANDREW WEBER
First Assistant Attorney General

DAVID S. MORALES
Deputy Attorney General for Civil Litigation

JAMESC. HO
Solicitor General
State Bar No. 24052766

JAMESD.BLACKLOCK
Assistant Solicitor General
State Bar No. 24050296

OFFICE OF THE ATTORNEY GENERAL


P.O. Box 12548
Austin, Texas 78711-2548
[TeL] 512/936-2872
[Fax] 512/474-2697

COUNSEL FOR THE STATE OF TEXAS

25
CERTIFICATE OF SERVICE

I certify that on January 5, 2010, true and correct copies of this Brief of the State of

Texas were served by certified U.S. mail, return receipt requested, to:

Peter A. Schulte H.B.


Schulte & Apgar, PLLC [address on file]
4131 N. Central Expressway
Suite 680
Dallas, Texas 75204

James 1. Scheske
Akin Gump Strauss Hauer Feld LLP
300 West 6th Street
Suite 2100
Austin, Texas 78701-3911

J. Carl Cecere
Akin Gump Strauss Hauer Feld LLP
1700 Pacific Avenue
Suite 4100
Dallas, Texas 75201-4675

Counsel for J.B.

Jwne~~-----

26

Appendix

INDEX TO ApPENDIX

J.B.'s Request for Findings of Fact and Conclusions of Law (Oct. 16,2009) ..... Tab 1

Response of the State of Texas as Intervenor to lB.'s Request for Entry of


Findings of Fact and Conclusions of Law (Oct. 21, 2009) Tab 2

J.B.'s Motion for Entry of Proposed Findings of Fact and Conclusions of Law
(Nov. 20, 2009) 0 0 0 00 Tab 3

District Court's Findings of Fact and Conclusions of Law and Amended Order
on Intervenor's Plea to the Jurisdiction (Dec. 7,2009) ...0 0 • 0 0 0 • 0 • 0 • 0 • 0 Tab 4

Baker v. Nelson, Jurisdictional Statement, No. 71-1027 (Oct. Tenn 1972) Tab 5
Tab 1

...___.,.---:--- , AkinGump 10/16/2009 4:15 PM PAGE 3/008 fax Server

NO. DF-09-1047
. .
IN TIlE MATrEROF I IN TIlE DISTRICf COtnn' OF
THE MARRIAGE OF, §
§ 302ND JUDICIALDISTRICf
J.D. §

AND
B.B. ,§

DALLAS COVNn TEXAS

1.a'S REQUEST FOil FINDINGS OF FACI AND CONCLUSIONS OF LAW

.
Petitioner J.B. files this Request:fur Findings ofFact and Conclmions of Law 8Dd would

respectfu11y show the.Court as follows:

REQUEST FORFJNPING§ OPFACI AND CONCLUSIONS OF LAW


On October 1, 2009, this Court denied Intervenor', Plea to 1he Jurlsdiction. On October

2, 2009 Intervenor filed its Notice of Appeal. which stated that Interva10r is appealing the
Court's October I. 2009 Order on Intervenor's Plea to the Jurisdiction. IntelVeDOr's appeal is an

accelerated appeal. Tex. Civ. Prac; & Rem. Code § S1.014(a)(8). When an interlocutory order

is appealed, "[t)he trial court need not file findin&9 of fal:t and conclusions oflaw but may do so

within thirty days after the otdec i' tigned." Tex. R. App. P. 28.t(e). The Court is free to enter .

fin~ offact and conclusions of law after 1he defimlt 30 day deadline if it chooses. See Davey

v. SAaw,225 S.W.3d843. 852 (T~App.-DaIlas 2007, nO pet.);Morris'OJI Y. M071'ison. 713


S.W.2d 377,380 (Tex. App.-DII)las 1986, writ dian'd); 1ft re Gillespie. 124 S.W.3d 699. 103

(rex. App.-HOOSlOD 2003. no pel). Given the significant legal aud constitutional issUIJS raised

by Intervenor's appeal, J .B. requests that the Court ~ findings of fact 8Dd conc1usioos ofJaw

in support ofits Order on Intervenor's Plea. to the Jurisdiction.

J.B. ftutber requests that the Court order the following scheduJe for consideration of

proposed findings offilet and condusions of law:

JA'S UQVESTFORlINDING60F FAa AND CONCLmIIONS OIlUW Pagel


AkinGump 10/16/2009 4:15 PM PAGE 4/008 Fax Server

• October 30, 2009-J.B. and H.B.'s deadline for subDUssion of proposed findings of fact
.aad conclusions oflaw.

• November 6, 2009-~s cJead1jne fur submission of objections CO J.B. and/or


RD.'s proposed filldings ofW:t and conclusions of law.

• Nomnba' 17, 2009-hcaring on J.B. and/or H.B.'s proposed filIdings of fact and
coadusions oflaw (ifdeemed necessary by the Court).

Petitioner's proposed briefing schedule will give the parties adequate time to develop proposed

~ of fact and c:onclusions of taw in support of the Com's order without unnecessarily

delaying the proceedjngs in this case. Petitioner also intClJds to seek an alteration of the default

briefing sohedu1c in the Court ofAppeals 80 that Intervenor's appeUate brief will not be due \mti1

after this Court has entered finLIiQp of fact and conclusions of 11tW. These sdteduling

mjustm.eBts will tmSUte that Intervenor's appeal is handled in an OI'Ckdy proceSs with sufficient

time allowed for amsidcration of the significant legal and constitution8l issues raised in the

appeal.

CONCLUSION

J.D. respectfully requests that the Court file finding,s of W:t and conclusions of Jaw in

support of its October 1, 2009 Older on Interveoor's Plea to tne Jurisdiction, and order the

above-outfined sduldule for consideration ofproposed findings offad and eonc1llsiODS oflaw.

I.B. 'S UQVIST Ii'ORFlNDINGS OFFACfAND CONa.USIONS 08 LAW


AkinGump 10116/2009 4:15 PM PAGE 5/008 Fax Server

1'5d......1k. (1., r-"';W", ~)


Peter A.Sdwlte ,

State BarNo. 24044677

Scholte 8t ~pr. PUC

4131 N. Central Expressway

Suite 680
Dallas, Texas 75204
(214) 521-2200 Telephone
(214) 739--3234 Fa<:simne

James J. Schake

State 881' No. 17745443; .

Akin Gump Strmu lIaUer & Fe1d LLP

300 West Sixth Street, Suite 2100

Austin, Texas 7870l

. (512) 499-6200 Telephone


(512) 499-6290 Facsimile

jscheske@akingump.eOm

J. Cad Cecere .

State Bar No. 24050397

Akin Gump Strauss Hauer '" Feld LLP

1700 Pacific Avenue, Suite 4100

Dallas. Texas 75201

(214) 969·2800 Te1qlhone


(214) 969-4343 Facsimite

ATrORNEYS FORPETITlONER

lA'S UQIJU'l' roRBINDINGS orrACr AND CONCLUSlO!lSOJ lAW


AkinGump 10/16/2009 4:15 PM PAGE 6/008 fax Server

CER.TIFlCA11t OF' CONFERENCE


I bueby certify that I have (lOnfemd with the R.espondeat. H.D., who indicated that he
was not opposed totbis motion. I also contaeted fmuny Blacklock of the Texas Solicitor
General's Office. and be indicated that the Solieitor Gena has not been ablo to determine a
position to tab on this motion.

J.QJjL-.-­

J.B.'S 1IQ1JISI' JOIl JlJNDlNGS 011 PAcr AND CONCLUSIONS OF LAW


AkinGump 10/16/2009 4:15 PM PAGE 7/008 Fax server

.j

CERTIFICATE OF SERVICE

I hereby certify that on OCfx>bec 16, 2009, e. true and comet copy of the above aDd

foregoing document was served on the following:

B.B.

[address on file]

Respondent
VIA CEllTIFIED ~ RETURNRECE.IPI' REQUESTED

GregAbboU
Attorney OencmlofTex.as
JamesC.Ho
Solicitor 0eIInl ofTeus
Office of tile Attorney General
P.Q. Box 12548 (Me 059)
512.936.1700 (P1IoDe)
512.474.2697 (Facsimile)
VIA FAalMlLE

~CU---
J.()m[ .

1""8 UQlJJ.ST lfOl\ JllNDINC8 OJ PACT AMDCONCLUSIONS OJ' LAW


Ak.1nGump 10/16/2009 4:15 PM PAGE 8/008 Fax Server

NO. D'-09-1047
IN THE MAT1'ER or I INTBE DISTRlCf OOtJlQ' 01'
TIlE MARRL\GE OF, t
I 382ND .roDIClALDlSTRIcr
J.B. I
AND I
JLB. I DALLAS CO'IJNTY.TEXAS '

(pROPOSED) ORDa ON J.B.tS BEQUEST

FOR. Ji'lNDINGS OF PACt AND CO~USIONS OJ'LAW

Before the Court is,J.B.'s Request tbt FiDdinp ofFlICt and CouolusioDs of Law. The

Court QlANTS the teqUesl ThoCoutt ODDS the following sd1cdule for ooosideration of
, proposed finctinp of&ct and conclusiOlM oflaw:

• October 30, 2009-io. end H.B.'s deadline fur submission of proposed findiDas of fact
ad conclusions offaw•

• , Novanbc:r 6, ~laveDot·3· deadliDe for sdJmission of objectioaa to 1.D. IIIIdI«


H.B.'. ptoposccl findings offhd: aDd COI1dusioos orn. '
• November--, 2OO9--bearing It_ _'_on J.D. aadlor H.D. '8 pmposed fiDdiDSS offact
IDd ccmcbuions oflaw.

SIGNED: 0ct0bCr----,2009

JUDGE TBNA CALLAHAN

0Jm1R0N lJI.'8l1EQU1ST FORfINDINGS OJ rACl AND CONCLUSIONSCD lAW


-"1
Tab 2

NO. DF-09-1074

IN THE MATTER OF § . IN THE DISTRICT COURT


THE MARRIAGE OF § OF DALLAS COUNTY, TEXAS
§ 302ND JUDICIAL DISTRICT
J.B. §
§
AND· §
§
H.B~ §

RESPONSE OF THE STATE OF TEXAS AS INTERVENOR TO


J.B.'S REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW.

Petitioner's request for findings of fact and conclusions of law from this Court is

extraordinary and.irregular on several levels-none of which are mentioned in his request.

Because this case is now on interlocutory appeal before the Fifth_ Court of Appeals,

the State of Texas has no position on Petitioner's request. The State files this response only

to help identify and disclose various procedural defects that prevent this Court from issuing

findings and conclusions.

I. All Proceedings In This Court Have Been Automatically Stayed Pending Appeal.

To begin with, all proceedings in this Court in this matter were automatically stayed

. by operation of Texas law when the State filed its notice of appeal onOctober 2, 2009.

Texas law expressly provides for a· special statutory right to interlocutory appeal

whenever any district court "grants or denies a plea to the jurisdiction by a governmental

unit." TEX. CIY. PRAC. & REM. CODE § 51.0 l4(a)(8).. And when a governmental unit invokes

this particular right, the appeal not only automatically "stays the commencement of a trial

in the trial court pending resolution ofthe appeal," but also "all otherproceedings in the trial

court pending resolution of that appeal." Id. § 51.0l4(b) (emphasis added). (The filing of
a notice of appeal by the State of Texas also automatically supersedes and stays the order

itself. See id. § 6.001; Tex. R. App. P. 25.1(g)(2), 29.1(b);Ammex Warehouse Co. v. Archer,

381 S.W.2d 478,485 (Tex. 1964) ("the State's notice of appeal operates as a supersedeas").)

Granting Petitioner's request would seem to violate the express terms of the statutory

stay. Petitioner asks this Court to set a briefing schedule for proposed findings of fact and

conclusions of law, to accept written submissions from each party regarding proposed

findings, and to hold a hearing to consider proposed findings and objections. By any

definition, these would appear to be "proceedings" barred by the express terms of the

statutory stay. Cf Mellon Servo Co. v. Touche Ross & Co., 946 S.W.2d 862, 868 (Tex.

App.-Houston [14th Dist.] 1997) (noting that the plain meaning of "proceeding" is "very

broad" and may include "all matters that occur in [a suit's] progress judicially") (citations

omitted).

II. Findings of Fact and Conclusions of Law Are Unnecessary To Facilitate The
State's Appeal And Procedurally Improper In Any Event.

A. In addition to being barred by the stay, Petitioner's request for findings of fact .

and conclusions of law seems particularly odd in that it comes from the party that prevailed

in the district court.

After all, it is typically the losing party that determines whether or not any findings

of fact,and accompanying conclusions of law, are necessary to facilitate appeal of its loss.

See, e.g., Russell H. McMains, Strategic Findings of Fact and Conclusions of Law,

University of Texas School of Law 16th Annual Conference on State and Federal Appeals,

Response a/the State a/Texas as Intervenor to J.B.·s Request/or Findings a/Fact and Cone/usions a/Law - Page 2
June 1-2, 2006, at 2, available at http://www .t~x-app.org/articles/StrategicFindings.pdf

("[A]s a practical matter, only the losing party or parties [request [IDdings of fact and

conclusions of law]. This is because a judgment rendered without [IDdings of fact and

conclusions oflaw provides the broadest possible basis to support a judgment on appeal.").

That is not the case here. It is the prevailing party that is requesting [IDdings of fact

and conclusions oflaw. And what's more, the prevailing party is requesting findings and

conclusions despite the fact that there are not-and never have been-any factual disputes

in this case. Cf IKB Industries v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997)

("findings of fact ... have no place in a summary judgment proceeding" because, "for

summary judgment to be rendered, there cannot be a genuine issue as to any material fact")

(quotations omitted).

The State of Texas has never disputed the central facts in the case-such as the

. parties' marriage under Massachusetts law, their subsequent change ofresidence to the State

of Texas, and their current desire to terniinate their Massachusetts marriage. There are thus·

no conclusions of law to draw from any factual determinations. Indeed, because the State's

plea to the jurisdiction did not challengejunsdictional facts, all facts in Petitioner's pleadings

must be taken as true-thereby rendering any findings of fact entirely superfluous. See, e.g.,

Tex. Dep'tofParks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

B. Moreover, not only are findings offact and conclusions oflaw unnecessary to

the interlocutory appeal, the Texas Supreme Court has made clear that findings of fact and

conclusions of law would be improper and not permitted in this context.

ReSponse oflhe State of Texas as Intervenor to J.B. 's Request for Findings ofFact and Conclusions of Law - Page j
In IKB Industries, the Supreme Court held that "findings and conclusions can have

no purpose and should not be requested, made, or considered on appeal," in any situation

where there is no evidentiary dispute and where "judgment [is] rendered as a matter oflaw."

938 S.W.2d at 443. "[A] party is not entitled to fmdings and conclusions ... [where]

judgment must be rendered as a matter of law." Id. at 442.

IKB involved the entry of a summary judgment. But the Court ruled more broadly,

expressly mentioning a number of other procedural settings where fmdings and conclusions

likewise should not be entered-including "dismissal for want of jurisdiction without an

evidentiary hearing" as well as any other "judgment rendered without an evidentiary

hearing"-and there is no reason in logic oi'law why a denial of a .plea to the jurisdiction

should be treated any differently. Id. at 443. In any of these situations, "[t]he trial court

should not make, and an appellate court cannot consider, findings of fact." Id. at 441. See

also id. at 441-42 ("a request for findings and conclusions following summary jUdgmentcan

have no purpose, should not be filed, arid if filed, should be ignored by the trial court")

(emphasis added); In re Estate ofBendtsen, No. 05-08-00122~CV, 2008 WL 1886778 at *1

(Tex. App.-Dallas Apr. 30, 2008,.no pet.) (mem. op.) ("A request for findings of fact and

conclusions of law is not proper when a ruling is made from a non-evidentiary hearing.").

It is not surprising, then, in light of these express statements in IKB, that Texas courts

have faithfully and consistently invoked the Court's ban on findings of fact and conclusions

of law within the specific context of pleas to the jurisdiction -especially in cases where no

evidentiary dispute exists and no evidentiary hearing has been held. See, e.g., Awde v.

RespotlSe ofthe State ofTexas as Intervenor to J.B.·s Requestfor Findings ofFact and ConclusiotlS ofLaw - Page 4
Dabeit, 938 S.W.2d 31, 33 (Tex. 1997) ("In this case, the county court dismissed the case

without jurisdiction based on the pleadings and arguments of counsel rather than on sworn

testimony, so findings and conclusions as to the court's jurisdiction would not serve any

purpose in the court of appeals."); Ford ex reI. Williams v. City ofLubbock, 76 S.W.3d 795,

797 (Tex. App.-Amarillo 2002, no pet.) (because plea to the jurisdiction was decided "as

a matter of law without an evidentiary hearing ... we do not believe that findings of fact and

conclusions of law serve a purpose in this matter"); Haddix v. Am. Zurich Ins. Co., 253

S.W.3d 339, 346 (Tex. App.-Eastland 2008, no pet.) ("[T]herewas no disputed fact issue

for resolution [of plea to the jurisdiction], and findings of fact would have served no useful

purpose."); Warren v. City ofAransas Pass, No. 13-07-087-CV, 2008 WL 4889834, at *5

. (Tex. App.-Corpus Christi 2008, no pet.) (mem. opp.) ("In fact, the trial court was not

required to file findings of fact and conclusions of law with respect to the plea to the

jurisdiction or to the summary judgment because these motions could only be granted if no

fact issue existed."). See also City ofFort Worth v. Shilling, 266 S.W.3d 97, 100 n.1 (Tex.

App.-Fort Worth 2008, pet. denied) (when a plea to the jurisdiction is denied following an

evidentiary hearing, findings of fact and conclusions of law, while potentially helpful, are

not required and "are not binding on an appellate court").

***

Petitioner mentions none of this-not the automatic statutory stay of all proceedings

in this' Court; not the lack of any need for findings of fact in the absence of a evidentiary

dispute or hearing; not the impropriety of findings and conclusions under IKB.

Response o/the State o/Texas as Intervenor to J.B. 's Request/or Findings o/Fact and Conclusions 0/ Law - Page 5
For his part, Petitioner cites only Rule 28.I(c) oftlie Texas Rules of Appellate

Procedure. But that rule simply states the generic proposition that trial courts may enter

findings of fact and conclusions oflaw within thirty days of an order subject to interlocutory

appeal. The rule does not address any of the specific concerns here-.such as the statutory

stay of all trial court proceedings that uniquely attaches when a party appeals the denial of

a plea to the jurisdiction by a governmental unit, as well as Texas Supreme Court precedent

confirming the impropriety of findings of fact and accompanying conclusions of law when

a district court enters a jurisdictional ruling purely as a matter of law and without any

evidentiary dispute or hearing.

CONCLUSION

.As noted, this case is now on interlocutory appeal before the Fifth Court of Appeals..

Accordingly, the State of Texas has no position on Petitioner's request for additional

proceedings from this Court.

The State simply wishes to disclose that Petitioner's request for findings of fact and

conclusions of law is inappropriate, for the reasons stated above. All proceedings in this

Court have been stayed pending the interlocutory appeal, and moreover. fmdings of fact and

conclusions of law are unnecessary to the appeal and procedurally improper in any event.

Re.ponse·ofthe State ofTexa. a. Intervenor to J.B. '. Reque.' for Finding. ofFaCI and Conclu.ions ofLaw - Page 6
Respectfully submitted,

GREG ABBOTT
Attorney General of Texas

C. ANDREW WEBER
First Assistant Attorney General

DAVID S. MORALES
Deputy Attorney General for Civil Litigation

-,--_-.:/s/ _
JAMESC.HO
Solicitor General
State Bar No. 24052766

JAMES D. BLACKLOCK
Assistant Solicitor General
State Bar No. 24050296

REED"N. SMITH
Assistant Attorney General
State Bar No. 24067875

OFFICE OF THE A TIORNEY GENERAL


P.O. Box 12548
Austin, Texas 78711':2548
[Tel.] (512) 936-1700
[Fax] (512) 474-2697

COUNSEL FOR THE STATE OF TEXAS

. Response o/the State o/Texas as Intervenor to J.B. 's Request/or Findings ofFact and Conclusions 0/ Law· Page 7
CERTIFICATE OF SERVICE

I certify that I served a true and correct copy of the foregoing to the following persons

on October 21,2009:

Peter A. Schulte H.B.


SCHULTE & APGAR, PLLC
4131 N. Central Expressway Respondent
Suite 680
Dallas, Texas 75204 [address on file]

James J. Scheske
AKIN GUMP STRAUSS HAUER & FELD LLP
. 300 West 6th Street
Suite 2100
Austin, Texas 78701-3911

J. Carl Cecere
AKIN GUMP STRAUSS HAUER & FELD LLP
1700 Pacific Avenue
Suite 4100
Dallas, Texas 75201-4675

Attorneys for Petitioner

lsI
James C. Ho

Response ofthe State of Texas as Intervenor to J.B. 's Request for Findings ofFact and Conclusions ofLaw· Page 8
Tab 3

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NO. DF-09-I047

IN THE MATfER OF § IN THE DISTRICT COURI' OF


THE MARRIAGE OF, §
§ 302ND JUDICIAL DISTRICT
J.B. §
AND §
B.D. § DALLAS COUNTY, TEXAS .

J.B.'S MOTION FOR ENTRY OF PROPOSED FINDINGS OF FACT AND

CONCLUSIONS OF LAW

Petitioner J.B. files its Motion for Entry of Proposed Findings ofFac1and Conclusions of

Law and would respectfully show the Court as follows:

On October 1, 2009, this Court entered an order striking the State;s petition in

intervention and determining it had jurisdiction in this case. On October 2, 2009 Intervenor filed

its Notice of Appeal, which stated that Intervenor is appealing the Court's October I, 2009

Order. Intervenor's appeal is an accelerated appeal. Tex. Civ. Prae. & Rem. Code §

51.014(a)(8). The State's brief is currently due December 18, 2009. On October 20. 2009, the

Petitioner I.B. subrnitteda Request for Entry of Findings ofFact and Conclusions of Law.

When an interlocutory order is appealed, "[t]he trial court need not file findings of fact

and conclusions of law but may do so within thirty days after the order is signed.'" Tex. R. App..

P.28.1{c). The Court is free to enter findings offaet and conclusions oflaw after the defauJt 30

day deadline if it chooses. See Davey v. Shaw, 225 S.W.3d 843, 852 (rex. App.-Dallas 2007,

no pet); Morrison v. Morrison, 713 S.W.2d 377, 380 (Tex. App.-DaJlas 1986, writ dism'd); In

re Gillespie, 124 S.W.3d 699, 103 (Tex. App.-Houston 2003,00 pet.).

For these reasons. and given the sign,ificant legal and constitutional issues raised by the

State's appeal, J.B. respectfully requests that the Court file findings of fact and conclusions of

J.B.'S MOTION FOR ENTRY OF PROPOSED FINDINGS OF FACT


AND CONCLUSIONS OF LAW Pagel
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law in support of its October I, 2009 Order, in the form outlined in Exhibit A to this motion,

enter a confonning amended order in the fonn outlined in Exhibit B to this motion, and provide

Petitioner such oilier relief as the Court deems necessary and proper.

J.D. 'S MOTION FOR ENTRY OF PROPOSED FINDINGS OF FACT .


AND CONCLUSIONS OF LAW
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Respectfully submitted,

. Peter . Schu te
Stat BarNo. 24044677
Schulte & Apgar, PLLC
4131 N. Central Expressway
Suite 680
Dallas. Texas 75204
(214) 521-2200 Telephone
(214) 739-3234 Facsimile

James J. Scheske
State Bar No. 17745443
Akin Gmnp Strauss Hauer & Feld LLP
300 West Sixth Street, Suite 2100
Aus~ Texas 78701
(512) 499-6200 Telephone
(512) 499-6290 Facsimile
jscheske@akingump.com

J. Carl Cecere
State Bar No. 24050397
Akin Gump Strauss Hauer & FeJd LLP
1700 Pacific Avenue~ Suite 4100·
Dallas, Texas 75201
(214) 969-2800 Telephone·
(214) 969-4343 Facsimile

ATTORNEYS FOR PETITIONER

lA'S MOTION FOR ENTRY OF PROPOSED FlNDINCS OF FACT


AND CONCLUSIONS OF LAW Page 3
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CERTIFICATE OF SERVICE

I hereby certify that on November 20, 2009, a tIue and correct copy ofthe above and

foregoing document was served on the following:

H.B.

[address on file]

Respondent
VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED

Greg Abbott
Attorney General ofTexas .
JamesC. Ho
Solicitor General ofTexas
Office ofthe Attomey General
P.O. Box 12548 (Me 059)
512.936.1700 (Phone)
512.474.2697 (Facsimile)
VIA FACSIMILE

>;)!1L.
J. i Cecere

J.B. 'S MOTION FOR ENTRY OF PROPOSED FINDINGS OF FACT


AND CONCLUSIONS OF LAW Page 4
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EXHIBIT A

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NO. DF..()9..1047

IN THE MAnER OF § IN THE DISTRICT COURT OF


THE MARRIAGE OF, §
§ 362ND JUDICIAL DISTRICT
J.B. §
AND §
H.B. § .DALLAS COUNTY, TEXAS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On October i, 2009, this Court entered an Order denying the Plea to the Jurisdiction filed

by the State of Texas (the "Court's Order"). The Court's Order also strock the State's Petition in

. Intervention. On October 2, 2009, the State of Texas appealed the Court's Order under Texas

Rule of Appellate Procedure 28.1. Following this notice, on October 16,2009, Petitioner I.B.

requested that the Court enter Findings of Fact and Conclusions of Law on the State's

jurisdictional plea.

The Court hereby GRANTS Petitioner's request and enters the following Findings of

Fact and Conclusions of Law (the "Court's Findings") on the State's Plea to the Jurisdiction. In

confunnance with the Court's Findings, the Court will enter an Amended Order Denying

InterVention (the "Amended Order"). To the extent of any inconsistency between the Court's

Order and the Court's Findings and Amended Order, these Findings and the Amended Order

control.

I. FINDINGS OF FACT
I. J.B., Petitioner in these proceedings, and H.B, Respondent, are both male.

2. Petitioner and Respondent were married on or about September 22, 2006, in the
. Commonwealth of Massachusetts.

FINDINGS OF FACT AND CONCLUSIONS OF


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3. Both Petitioner and Respondent resided in Massachusetts at the time of their

union. and fulfilled all other statUtory requirements to lawfully enter marriage there.

4. Subsequent to their marriage, Petitioner and Respondent moved to Tex.as.

5. There are no children ofthe marriage and none are expected.

6. Petitioner and Respondent oobabitated until their separation in November 28,

2008.

7. Petitioner filed for divorce on January 21.2009. claiming discord or conflict of

. personalities as the reason for divorce.

8. Petitioner was a domiciliary ofTexas for the six months preceding his petition for

divorce.

9. Petitioner also resided in Dallas County for the 90 days preceding his petition for

divorce.

10. The State ofTexas filed a petition for intervention in this action claiming that this

Comt cannot grant Petitioner a divorce, because Texas law does not grant same-sex couples like

J.B. and H.B. the right to seek a divorce, even ifthey have been lawfully married in other states.

D. CONCLUSIONS OF LAW

1. Marriage to a person of the same sex is currently legal in Massachusetts.

and was legal J1t the time ·of the wrion of Petitioner and Respondent. Mass. Gen. Laws ch. 207.

§§ 1-9 (2009).

2. Petitioner fulfills all of the enumerated· statutory requirements to bring a

suit for divorce in Texas. See Tex. Fam. Code § 6.302; see also Exxon Corp. v. Emerald Oil &

Gas Co., L.C., 52 Tex. Sup. Ct J. 462, 465 (Tex. Mar. 27, 2009) (noting the rule that a party

suing under a statute must establish the right to make a claim under that statute).

FINDINGS OF FACT AND CONCLUSIONS OF


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3. In 2003, the Texas legisl~ passed Chapter 124 of Senate Bill Number

7, later Codified in the Texas Family Code as Section 6.204, which states in relevant part:

(b) A marriage between: persons ofthe same sex or a civil union is contrary
to the public policy ofthis state and is void in this state.

.(e) The state or an agency or political subdivision ofthe state may not give
etrectto a:

(l) public act, record, or judicial proceeding that creates,


recognizes, orvalidates a marriage between persons ofthe same
sex or a civil union in this state or in any other jurisdiction; or

(2) right or claim to any legal protection, benefit, or responsibility


asserted as a result ofa marriage between persons ofthe same sex
or a civil union in this state or in any other jurisdiction.

Tex. Acts 2003, 78th Leg., ch. 124, § I, eft: Sept. 1,2003.

4. On November 8, 2005, the People of the State of Texas enacted the

following amendment to the Texas Constitution by ballot initiative:

(a) Marriage in this state shall consist only ofthe union ofone man and
one woman.

(b) This state or a political subdivision ofthis state may not create or
recognize any legal status identical or similar to maniage.

Tex. Const art!, § 32.

5. Article I, Section 32 of the Texas Constitution is not implicated in thIS

proceeding. In Texas, dissolution of a marriage entered in another state does not require that

Texas affinn or approve of the marriage, or subjugate its own policies to those of another state.

A suit for divorce does, indeed, presume a valid marriage. Gray v. Gray, 354 S.W.2d 948,949

(Tex. Civ. App.-Houston 1962, writ dism'd). But in granting a divorce, Texas oourts do not

detennine the validity of a marriage by reference to either Texas law or Texas public policy.

Rather, Texas courts, as a matter of comity, consistently apply the "place of celebration" test,

utilizing the law of the place where the marriage was celebrated or contracted to determine the

F.INDINGS OF FACT AND CONCLUSIONS OF


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validity of a marriage. Tex. Employers Ins. Ass'n v. Bonun, 834 S.W.2d 395, 399 (Tex. App.­
l

San Antonio 1992, Writ denied); Husband v. Pierce, 800 S.W.2d66l. 663 (Tex. App.-Tyler

1990, no writ); Braddockv. Taylor, 592 S.W.2d 40. 42 (rex. Civ. App.-Beaumont 1979, writ

refd n.r.e.); Durr \I. Newman, 537 S.W.2d 323,326 (Tex. Civ. App.-El Paso 1976, writ ref'd

n.r.e.); see also RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 283 (1971). Texas courts

routinely apply .another state's laws to detennine the validity of a marriage. In doing so. the

State of Tex.as is not "recognizing" the legal status of the marriage as a matter of Texas law.

Instead, it is merely detennining whether the marriage was valid under the laws in which the

union was entered.

·6. While the Article I, Section 32 of the Texas Constitution might proln'bit ~sex

couples from receiving public benefits on the basis of their relationship status, or recognize the .

same-sex spousal relationship as having the ability to supplant otheJWise-applicable state law

(such as.the spousal privilege against admission of evidence), it does not promoit consideration

of a valid marriage entered in Massachusetts for the sole purposes of granting a divorce.

~ Equal Protection

7. The freedom to marry a person ofone's choosing is a fundamental liberty interest

protected under the United States Constitution. Loving \I. Virginia. 388 U.S. 1, 12 (1967); see

also Richards v. League o/United Latin Am. Citizens, 868 S.W.2d 306, 314 (Tex. 1993); ML.B.

v. SL.J., 519 U.S. 102. 116 (1996) ("Choices about marriage" are "sheltered by the Fourteenth

Amendment against the State's


.
unwarranted
.
usurpation, disregard, or disrespect. j. This

fundamental liberty interest protecting autonomy in personal decisions like marriage applies

equally to the decision to dissolve that union through divorce. Such decisions involve ''the most

intimate and personal choices a person may make in a lifetime, choices central to personal

.dignity and autonomy," and for that reason are central to the liberty protected by the Fourteenth

FINDINGS OF FACT AND CONCLUSIONS OF


LAW PAOE4
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Amendment. Planned Parenthood of Southeastern Pennsylvania "v. Casey~ 505 U.S. 883, 887

(1992); Boddie v. Connecticut, 401 U.S. 371. 376 (1971) (divorce is "adjustment of a
fundamental human relationship" and thus a fundamental liberty interest). Also. divorce

involves, affects, and affords a number of other fundamental rights and important benefits like

adjudication of property rights and the exercise of one's freedom of association.· See Sosna v.

Iowa, 419 U.S. 393, 406"07 (1975).

8. Prohibiting Texas's same-sex residents who meet the statutory requirements for

obtaining a divorce in Texas, and who were legally married in another jurisdiction, from

obtaining a divorce would impose substantial restrictions on those residents to exercise rights .

and benefits they could reasonably expect to enjoy in dissolving a lawful union; rights that

heterosexual couples enjoy under Texas law.

9. The procedure offered by the State of Texas as a supposed substitute for divorce

for sanie-sex couples does not even remotely provide the rights that those couples could

reasonably expect in a divorce. It therefore fails to afford same-sex couples access to divoree

proceedings on the same terms as persons in heterosexual marriages. Under any level of.

scrutiny, this unjustified deprivation of rights constitutes a violation of the right to Equal

Protection afforded under the Fourteenth Amendment. See Romer v. EvQJJS, 517 U.S. 620, 635­

36 (1996) (holding that laws that seek to "classitIy] homosexuals not to further a proper

legislative end but to make them unequal to everyone else" fail to satisfy mtional basis review.).

. Therefore, Section 6.204 is unenforceable against Petitioners and cannot deprive this Comt of

jurisdiction.

B. Due Process

10. As noted above, the institutions of marriage and divorce, and the bundle of

personal relationships, property interests, and other burdens and benefits that go with them, are a

FINDINGS OF FACT AND CONCLUSIONS OF


LAW PAGE 5
11/20/2009 4:24 PM PAGE 13/018 Fax Server

fundamental aspect of liberty protected under the United States Constitution. For that reason.

they are also protected under the Fourteenth Amendment Due Process Clause and subject to

strict scrutiny. Cleveland Bd. of Educ. v. LaFleur, 4]4 U.S. 632. 639 (1974) ("freedom of

personal choice in matters ofmamage and family life is one of the liberties protected by the Due

Process Clause of the Fourteenth Amendment"); Loving, 388 U.S. at ]2.

11. Section 6.204 cannot pass scrutiny under the Due Process Clause. The State of

Texas cannot articulate any compelling reason why it must substantially impair the rights of

same-sex couples to obtain a divorce, much less explain how this discrimination is tailored as

.narrowly as possible to avoid excessive burden on homosexuals and their right to obtain

divorces.

c. Freedom of Association

12. The freedom of indiViduals to associate intimately with others in furttterance of

their personal beliefs is not only a fundamental liberty interest protected under the Due Process

Clause of the Fourteenth Amendment, it has also ''long been held to be implicit in the freedoms
,
of speech, assembly, and petition" outlined in the First. Amendment. Healy v. James, 408 U.S.

169, 181 (1972) (holding that "denial by state college of official recognition to a group of

..students who decided to form" a political organization implicated First Amendment association

concerns). The freedom of association also ''plainly presupposes a freedom not to associate."

Roberts v. u.s. Jaycees, 468 U.S. 609, 623 (1984) (emphasis added).
13. Just as Texas Family Code Section 6.204 cannot survive strict scrutiny in the Due

Process context, it fails similar review under the First Amendment. The State ofTexas's refusal

to provide lawfully married same-sex couples with access to divorce proceedings constitutes an.

undue burden on both the right to intimate association and the right to be free from forced

FINDINGS OF FACT AND CONCLUSIONS OF

LAW PAGt ()

AkinGump 11/20/2009 4:24 PM PAGE 14/018 Fax Server

association. This infinnity provides a second and independent reason why Section 6.204 should

not be enforced to deprive this Court ofjurisdiction to hear this matter.

D. The Right to Travel

14; It is a fundamental aspect of citizens' concepts of personal liberty, not to mention

the very nature of the federal union of states. that all citizens should be free to travel

'''throughout the length and breadth of our land uninhibited by statutes, rules, or regulations

which unreasonably burden or restrict this movement'" Saenz v. Roe, 526 U.S. 489, 499 (1999)

(quoting Shapiro v. Thompson. 394 U.S. 618.629 (1969)). This right to migrate protects the

right of travelers, as citizens of the United States, to elect to become permanent residents in any

state and enjoy the "same privileges and immunities enjoyed by other citizens ofthe same State."

Saenz v. Roe, 526 U.S. at 502.

15. In addition to its other constitutional infinnities, Texas Family Code Section

6.204 severely and pennanently infiinges upon the right ofIawfuIly married same-sex couples to

migrate. to and set up residence in Texas.

16. The State of Texas has asserted no compelling interest why it must discriminate

.against migrant same-sex married couples in this manner. It has also failed to demonstrate how

Section 6.204 is drawn narrowly to avoid undue infringement on the fundamental right to travel

under Article IV and the FolJ1'temth Amendment Th~ for this additional reason, the State of

Texas has failed to carty its burden to demonStrate the constitutionality of this provision, and it

will not be enforced.

E. Conclusion and Order Denying Intervention

17. Because the provisions of the Family Code denying same-sex couples access to

divorce proceedings violates the Petitioner's constitutional rights, the Court 1herefore concludes

that the State's plea to the jurisdiction must be denied. In determining that this Court has

FINDINGS OF FAct AND CONCLUSIONS OF


UW P~7
AkinGump 11/20/2009 4:24 PM PAGE 15/018 Fax Server·

jurisdiction, this Court's holding is expressly limited to a narrow determination that the

provisions ofTexas Jaw refusing to grant same-sex couples who are lawfully married in another

state access to divorce proceedings cannot pass muster under the United States Constitution. The

Com finds that· these provisions violate Petitioner's rights protected under the United States

Constitution, including Petitioner's rights to freedom ofassociation under the First Amendment,

and equal protection and due process under the Fourteenth Amendment.

18. Because J.R and R.B. were married before they became Texas residents, this

Court does not have occasion to determine whether the Texas Constitution's provisions or the

Texas Family Code's provisions involving same-sex marriage comply with the protections of the

United States Constitution.

19. The State of Texas does not have the constitutional or statutory autlwrity to

intervene in this divorce case. This is not a suit affecting the parent-child relationship and the

Court concludes that there is no other basis for intervention by the State in this proceeding.

Signed this __ day of_ _-" 2009.

Judge Presiding

FINDINGS OF FA.CT AND CONCLUSIONS OF


LAW PAGtS
AkinGump 11/20/2009 4:24 PM PAGE 16/018 Fax Server

EXHIBITB

AkinGump 11/20/2009 4:24 PM PAGE 17/018 Fax Server

NO. DF-99-1047

IN THE MATeER OF § IN THE DISTRICT COURT OF


THE MARRIAGE OF9 §
§ 302ND JUDICIAL DlSTRlCf .
J.B. §
AND §
B.B. § DALLAS COUNTY, TEXAS

AMENDED ORDER ON INTERVENOR'S PLEA TO THEJURISDICfION

On the limited issue of whether this Court has jurisdiction to divorce the Petitioner J .B.,

who has legally married in another jurisdiction and who otherwise meets the residency and other

prerequisites required to file for a divorce in Dallas County, Texas:

The Court FINDS that Texas Family Code Section 6.204 violates the following

Constitutional rights of the Petitioner J.B.: (i) the right to travel under the Privileges and

Immunities Clause ofArticle l~ Section 2 to the United States Constitution; (ii) the freedom of

association under the First Amendment to the United States Constitution; (iii) the right to travel

under the Privileges or Immunities Clause Wlder Section 2 to the Fowteentb Amendment to the

United States Constitution; (iv) the Due Process Clause under Section 2 to the Fourteenth

Amendment to the United Stlltes Constitution; (v) the Equal Protection Clause under Section 2 to

the Fourteenth Amendment to the United States Constitution.

Accordingly, the Court FINDS that it bas jurisdiction to hear Petitioner J.B.'s suit for

divorce. as he is. a persOn legally married in another jurisdiction who meets the residency and

other prerequisites required to file for a divorce in Dallas County, Texas.

The Court FINDS that the State of Texas does not have the Constitutional or statutory

authority to inteIVene in this divorce case. This is not a suit affecting the parent-child

AMENDED ORDER ON INTERVENOR'S PLEA TO THE JUJU8DICTION PAGEl


AkinGtimp 11/20/2009 4:24 PM PAGE 18/018 Fax Server

relationship and the Court concludes that there is no other basis for intervention by the State in

this proceeding. Therefore, the State's Plea to the Jurisdiction is denied and the Intervention

filed by the Office of the Attoriley General is hereby stricken.

Signed this __ day of_ _.....>, 2009.

Judge Presiding

AMENDED ORDER ON INTERVENOR'S PLEA TO THE JUlUSDICTION PAGE 1


Tab 4

NO. DF-09-1074

IN THE MATTER OF .
§ IN THE DISTRICT COURT OF
THE MARRIAGE OF!
§
§ 302ND JUDICIAL DISTRICT
J.B. §
AND §
B.B. § DALLASCOUNTY,TEXAS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

.On October 1, 2009, this Court entered an Order 4enying the Plea to the Jurisdiction filed

by the State ofTexas (the ~(Court's Order"). The Court's Order also struck the State's Petition in

Intervention. On October 2, 2009, the State of Texas appealed the Court's Order under Texas

Rule of Appellate Procedure is.l. Following this notice, on October 16, 2009, Petitioner LB.
requested that the Court enter Findings of Fact and Conclusions of Law on the State's

. jurisd.ictional plea.

The Court hereby GRANTS Petitioner's request and enters the following Findings of
Fact and Conclusions of Law (the "Court's Findings") on the State's Plea to the Jurisdiction. In

confonnance with the Court's Findings, the Court will enter an Amended Order Denying

Intervention (the "Amended Order"). To the extent. of any inconsistency between the Court's

Order and the Court's Findings and Amended. Order, these Findings and the Amended Order

control.

I. FINDINGS OF FACT

.1. J.R, Petitioner in these proceedings, and H.B, Respondent, are both male.

2. Petitioner and Respondent were married on or abqut September 22, 2006, in the

Commonwealth of Massachusetts.

FINDINGS OF FACT AND CONCLUSIONS OF


LAW PAGE 1
3. . Both Petitioner and Respondent resided in MaSsachusetts at the time of their

. union, and fulfilled all other statutory requirements to lawfully enter marriage there.

4. Subsequent to their marriage, Pditioncr and Respondent moved to Texas.

5. There are no children of the marriage and none are expected.

6. . Petitioner and Respondent cohabitated until their separation in November 28,

2008.

7. Petitioner filed for divorce on January 21, 2009,c1aiming discord or conflict of

perS<.matitics as the reason for divorce.

8. Petitioner was a domiciliary of Te~.as fOf the six months preceding his petition for

divorce.

9. Petitioner also resided in Dallas County for the 90 days preceding his petition for

divorce.

10. The State ofTeus filed a petition for intervention in this action claiming that this
Court cannot grant Petitioner a divorce, because Texas law does not grant same-sex couples like

J.e. and H.B. the right to seek a divorce, even ifthey have been lawfully married in other states.

II. CONCLUSIONS OF LAW

L Marriage to a person ofthe same sex is currently lega} in Massachusetts,

and was legal at the time of the union of Petitioner and Respondent. Mass. Gen. Laws ch. 207,

** 1-9 (2009).

2. Petitioner fulfills all of the enumerated statutory requirements to bring a

suit for divorce in Texas. See Tex. Faro. Code § 6.302; see also Exxon Corp. v. Emerald Oil &

Gas Co" L.C., 52 Tex. Sup. Ct. J. 462, 465 (Tex. Mar. 27, 2009) (noting the rule that a party

suing under a statute mu.~t establish the right to make a claim under tha.t statute).

FINDINGS OF FA.CT AND CONCLUSIONS OF


LAW PA<wf. 2
3. In 2003, the Texas Legislature passed Chapter 124 of Senate Bill Number

7, later codified in the Texas Family Code as Section 6.204, which states in relevant part:

(b) A marriage hetween persons of the same sex or a civil union is contrary
to the public policy of this state and is void in this state.

(e) The state (lran. agency or pOlitical subdivision ofthe state may not give
effect to a:

(1) public act, record, or jU.dicial proceeding that creates,


recognizes, or validates a marriage between persons oftllc same
sex or a civil union in this state or in any other jurisdictl0n~ or

(2) right. or claim to any legal protection, benefit, or responsibility


assened as a result of a marriage between persons of the same sex
or a civil unton in this state or in any other jurisdiction.

Tex. Acts 2003, 78th Leg., ch. 124. § I, eft: Sept. 1, 2003.

4. On November 8, 2005, the People of the State of Texas enacted the

following amendment to the Texas Constitution by ballot initiative:

(a) Marriage in this state 5haU consist only of the union of one man and
one woman.

(b) This state or a·political subdivision of this state may not create or
recognize any legal status identical or similar to marriage.
. ..
Tex. Const. art. I, § 32.

5. Article [, Section 32 of the Texas Constitution tS not implicated in this

proceeding. In Texas, dissolution of a marriage entered in another state does not require that

Texas affirm or approve of the marriage, or subjugate its own policies to those of another state.

A suit for divorce does, indeed, presume a valid marriage. Gray v. Gray, 354 S.W.2d 948, 949

(Tex, Civ. App.-Houston 1962, writ dism'd). But in granting a divorce, Texas courts do not.

detennine the validity of a marriage by reference to either Texas law or Texas public policy.

RathCl.", Texas courts, as a matter of comity, consistently apply the ''place of celebration" test,

utilizing the Jaw of the place where the marriage was celebrated or contracted to determine the

FINDINGS OF FACT AND CONCI.USIONS OF


1,AW PAGE 3
validity of a. maniage. Tex. Employers' Ins. Ass 'n v. Borum, 834 S.W.2d 395 t 399 (lex. App.­

San Antonio 1992, writ denied); Husband v. Pierce! 800 S.W.2d 661, 663 (Tex. App.-Tyler

1990, no writ); Braddock v. Taylor, 592 S.W.2d 40,42 {Tex. Civ. App.~Beawnont 1979, writ

l'cfd n.r.e.); Dur,. 1-'. Nel1.'man, 537 S.W.2d 323, 326 (Tex. eiv. App.-El Paso 1976, writ refd ..

n.r.e.); sc:c a/so RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 283 (1971). Texas courts

routinely apply another state's laws to detennine the validity of a marriage. In doing SOt the

State of Texas is not "recognizing" the legal status of the marriage as a matter of Tex.as law.

fnstead, it 1S merely detennining whether the marriage was valid under the laws in which the

union wa.,o;; entf,Jred.

6. While the Article 1, Section 32 of the Texas Constitution might prohibit same-sex

couple..~ from receiving public benefits on the basis of their relationship status, or recognize the

Samc:.sex spousal reJationshipas having the abilit.y to supplant otherwise..;applicablc state law

(such as the spousal privilege against admission of evidence), it does not prohibit consideration.

of a valid maniage entered in MassachWlctts for the sole purposes of granting a divorce.
A. Equal rrotection

7. The freedom to marry a person of one's choosing is a fundamental liberty interest

protected under the United States Constitution. .u>Vi1'lg v. Virginia, 388 U.S. 1. 12 (1967); see

also Richards v. League o!Ul'litedLatin Am. Citizens, 868 S.W.2d 306,314 (fex. 1993); M.L.B.

I t• S.L.J., 519 U.S. 102, 1J6 (1996) ("Choices about marriage" are "sheltered by the Fourteenth

Amendment against the State's unwarranted usurpation, disregard, ot" disrespect."). This

fundamental liberty interest protecting autonomy in personal decisions like marriage applies

equally to the decision to dissolve that union through divorce.. Such decisions involve "the most

intimate and personal choices a person may make in a lifetime, choices central to personal

dignity and autonomy." and for that reason are central to the liherty protected by the Fourteetlth

FTNDlN(;S OF FACT AND CONCLUSIONS OF

LAW PAGE 4

Amendment. PlaTlJllcd Parenthood of Southeastern Pennsylvania v. Cas(o/, 505 U;S. 883, 887

(1992); Boddie v. Connecticut, 401 U.S. 37t, 376 (1971) (divorce is "adjustment of a

fundamental human relation5hip" and thus a fundamentaJ liberty interest). Also, divorce

involves, affects, and affords a number of other fundamenta.l rights and important benefits \ike
. .
adjudication of property rights and tbe exercise of one's fTcedom of association. See Sosna v..

Iowa. 419 U.S. 393,406-07 (1975).

8. Prohibiting Texas's same-sex resident.c; who meet the statutory requirements for

obtaining a divorce in Texas, and who wcre It'lgally married in another jurisdiction, from

obtaining 8 divorce would impose substantilil restrictions on those residents to e~ercise rights

and benefits they could reasoJ1ably expect to enjoy in dissolving a lawful union; rights that

hC'terose.xual couples enjoy under Texas law.

9. The procedure offered by the State of Texas as a supposed substitute for divorce

for same"sex couples does not even. remotely provide the rights that those couples CQuld

reasonably expect in a divorce. Jt therefore fails to afford same-sex couples access to divorce

proceedings Or) the same terms as person.c; in heterosexual marriages. Under any level of

scrutiny, this unjilstified deprivation of rights constitutes a vl01ation of the right to Equal

fJrQtcction a.fforded under the Fourteenth Amendment. See Romer v. Evans, 517 U;S, 620, 635­

36 (1996) (bolding that laws that seek to ··classitty] homosexuals not to further a proper

legislative end blit to make them unequal to everyone else" fail to satisfy rational basis review.).

Therefore. Section 6.204 is unenforceable against Petitioners and cannot deprive this Court of

,jurisdiction.

B. Due Process
10. As noted above, the institutions of marriage and divorce, and the bundle of

personal relationships, property intetests. and other burdens and benefits that go with them, are a

FINDINGS OF FACT AND CONCUJ510NS OF


....AW PAGE 5
fundamental aspect of liberty protected under the United State!l. Constitution. For that rea.~on,

they arc also protected under the Fourteenth Amendment Due Process Clause and subject to

strict scrutiny. Cleveland Bd. ~r Bd/,i.c. v. LaFleur, 414 U.S. 632, 639 (\974) ("freedom of

personal choice in matters of marriage and family life is one of the liberties protected by the Due

Procc..o.;s Clause (If the Fourteenth Amendment:'); Loving, 388 U.S. at 12.

I I. Section 6.204 cannot pass scrutiny under the Due PrOl:e5S Clause. The State of

Teltas cannot articuh.te any compelling reason why it mu....., sUbstantially impair the rights of

same-sex couples to obtain a divorce, much less explain how this discrimination is tailored as

narrowly as possible to avoid excessive burden on homosexuals and tlleir right to obtain

divorces.

C. Freedom of Associadon

12. The freedom of iodividuals to associate intimately with others in furtherance of

their personal beliefs is not only a fundamental liberty interest protected under the Due Process

Clause of the Fourteenth Amendment, it has also "long been held to be implicit in the freedoms

of speech, assembly, and petillon" outlined in the First Amendment. Healy v. James, 408 U;S.

169, 181 (1912) (holding that "denial by state coUege of official recognition to a group of

students who decided to fonn" a political organization implicated First Amendment association

concems). The freedom of association also "plainlY presupposes a freedom not to associate:'

Rober!.., \'. U.S. Jaycees, 468 U.S. 609, 623 (1984) (emphasis added).

13. J'ust az Texas Family Code Section 6.204 cannot survive strict scrutiny in the Due

Process context, it fails similar review under the first Amendment. The State ofTexas's refusal

to provide lawfully married sarne~scx couples with access to divorce proceedings constitutes an,

undue burdcnon both the right to intimate associat;on and the right to be free from forced

FINDINGS OF FACT ANn CONCLUSIONS OF


I.AW f'AGE 6
association. This infinnity providc..q a second and independent reason why S~tion 6.204 should

not be enforced to deprive this Court ofjurisdiction to hear this matter.

D. The Right to Tl"8vel

14. It is a fundamental aspect of citizens' con~ts of personal liberty, not to mention

the very nature of the federal union of states. that all citizens should be free to travel

"·throughout the length and breadth of our land uninhibited by statutcs, rules, or regulations

whieh unreasonably burden or restrict thi~ movement."· Saenz l'. Roe, 526 U.s. 489,499 (1999)

(quoting Shapiro 1'. 77r.OInpson, 394 U.S. 618, 629 (1969». This right to migrate protects the

right of travelers, as citizens of the United States, to elect to become pennanent residents in any

state and enjoy the "sam~ privileges and immunities enjoyed by other citizens of the same State:'

Saenz v. Roe, 526 U.S. at 502.

15. 10 addition to its other constitutional infiTmities) Texas Family Code Section

6.204 severely and permanently infringes upon the right of lawfully married same·sex. couplel:1 to

migrale to and set up residence in TeX3(l.

16. The State (If Texas has asserted no compc1H.ng interest why it must discriminate

against migrant same~:!lex married couples in this manner. It has also failed to demonstrate how .

Section 6.204 is drawn narrowly to avoid undue infringement on the fundamental right to travel

under Article IV and the Fourtccnth Amendment. Thus, for this additional teaSon, the Slate of

Te1<as has failed to carty its burden to demonstrate the conmitutionality of this provision, and it

.will not be enforced.

E. Conclusion and Order DenYing Intervention

17. Because the provisions of the Family Code denying same-sex. couples access to

divllfCC proceedings violates the Petitioner's constitutional rights, the Court therefore concludes

that the State's plea to the jurisdiction must be denied. In determining that this Court has

FINDINGS OF FACT AND CON~LUSIONS OF


l.AW PAGE 7
jurisdiction, this Court's holding is expressly limited to a narrow determination that the

provisionR of Texas law refusing to grant same-sex couples who are lawfully married in another

!>tatc access to divorce proceedings cannot pass muster under the United States Constitution. The

Court finds that these provi!lions violate Petitioner's rights protected under the United States

Constitution, including Petitioner's right.~ to freedom of association under the First Amendment, .

and equal proteet1on and due process under the Fourteenth AmcndmCflt.

18. Because J.B. and H,B. were manied before they became Texas residents, this

Court does not have o~asion to detenninc whether the Texas Constitution's provisions or the

Texas Family Code's provisions involving same-sex mal'Tiage comply with the protections of the

United States Constitution­

19. The State of Texas does not have the constitutio~al or statutory authority to

intt.1T'Vene in this divOrce case. Thi!'i is not a suit affecting the parent-child relationship and the

Court concludes that there is no other basis for intervention by the State in this proceeding.

Signed this ~ day of~OO9.

FINDiNGS OF FACT AND CONCLUSIONS OF


LAW PAGt 8
NO. DF-09-1074

IN THE MATTER OF
§ IN THE DISTRICT COURT OF
THE MARRIAGE OF,
§
§ 302ND JUDICIAL DISTRICT
J.B. §
AND §
H.B. § DALLASCOUNTY,TEXAS

AM.ENDED ORDER ON INTERVENOR'S PLEA TO THE JURISDICTION

On the limited issue of whether this Court has jurisdiction to divorce the Petitioner ~.B.,

who has legally married in another jUrisdiction and who otherwise meets the residency and other

prerequisites required to file for a divorce in Dallas County, Texas:

The Court FINDS that Texas Family Code Section 6.204 violates the following

Constitutional rights of the Petitioner J.B.: (i) the right to travel under the Privileges and

Immunities Clause of Article T\', Section 2 to the United States Constitution; (ii) the freedom of

association under the First Amendment to the United States Constitution; (iii) the right to travel

under the Privileges or Immunities Clause under Section 2 to the Fourteenth Amendment to the

United States Constitution; (iv) the Due Process Clause Under Section 2 to the Fourteenth

Amendment to the United States Constitution; (v) the Equal Protection Clause under Section 2 to

the Fourteenth Amendment to the United States Constitution.

Accordingly, the Court FINDS that it has jurisdiction to hear Petitioner J.B. '5 suit for

divorce, as he is a person legally married in another jurisdiction who meets the residency and

other prerequisites required to file for a divorce in Dallas County, Texas.


The Court FINDS that the State of Texas does not have the Constitutional or statutory

authority to intervene in: this divorce case. Th.is is not a suit affecting the parent-child

AMENDED ORDER ON INTERVENOR'S PLEA TO THE JUlUSDICTION PAGE 1


. .

relationship and the Court concludes that there i5no other basis for intervention by the ,State in

this proceeding. Therefore, the State's Plea to t11e Jurisdiction is denied and the Intervention

filed hy the Office of the Attorney General is hereby stricken.

.Signed this 1- day Of'h.~2009.

AMENDED ORDER ON INTERVENOR"S PLEA TO THE JURISDICTION


Tab 5

. "1',
FeB,ll 191)
'1- 1027
= . . Opy
()
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tn
CD
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.. OO'J:OSER TERM, 1U72 ~o
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~
RICHARD JOHN BADB, et al.,
,..... AppeZlants,
s:
Q) (; ..
'
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G)
(") t: .
::J"" •. .: GERALD R. NELSON,
3 r" Appellee.

CD~
,..... ~,,
::J ,~
ON' APpEAL ]!'ROM: THE 8UPRBMK coURT 011' MINNESOTA.

Ni
1\'\
~
it
i"'1 :, If
,..... 'or'
, JURlSDlcrlONAL STATEMENT
o ,
o ,',

~
o
o R. MlOBAEL WETSE1l1IEE
~
CO l~ Minnesota Civil Liberties Union
2323 least Hennepin Avenue
1 Minneapolis, Minnesota 55413
j;
t
;1.
LYNN S. CASTNER

',I:
1625 Park Avenue
Minneapolis, Minnesota 55404:
; , " .,
Attorfl.e1jS for Appellants

;,
,',
• 'IIII'

1
290f4
~
,I
'I()

I:
'~
Q)

INDEX
P4GB
rl~

.rg
" ,:
'0
, JvarSDIOTIONAL STATEMENT o
:N
Opinions Below ._........................................................... 1
" 00
" , 0)
, I
,0
JU1;'isdietion __._........................................ 2

·0
.:. a
Statutes Involved _ _ - _ _-. 2 . ,'~

Questions Presented ._

Statement of the Case .._


_

_
- _...

_.............
3

3
III :

I 'g
" How the Federal Questions Were Raised 6 I ,C
. ,:~

I ,i',­

The Questions Are Substantial 6 I ',:::l


l"N
U1
I. Respondent's refusal to sanctify appellants' " I

marriage deprives allpellants of liberty and .W


J
/ (
prO}lerty in violation of the due process and
1j : 1\."
equal protection clauses - ..-................. 11. _.

i
,
JeD
:0­
II. Appellee's refusal to l!!gitimate appellants' i ,'io
marriage oonstitutes an unwarranted invasion ~.
I 'CT>
.",,"­

of the pri~acy in violation of the Ninth and


t ,-'"
! ,:~
Fourteenth Amendments 18 I, "il\J

1
.
"
'
CONcx.'OSIOli _••_ _ _..................................... 19 '1
,0

l~~
','J
.f ::

. ,';"'0
Al'PENDIX \ ,'Q)
I ,co
Statutes Involved i ,m
Chapter 517, Minnesota Statutes ls I N
,,'

" Alternative Writ of Mandamus lOa .1 g,


1,.1 I ' .....
'1' w
,
i I
" •
'

1,',
I,

--_. __ ~ ~
IiI...
:'1
.-'
iii en
ii
.. PAGE
CD
ICD
;.~.

I':
oCO,
Order Quas~iJig the Writ ~ .. ~ _ _. IIl;~ ,COfl8titutionc.l Provisions:
Amended O~der, Findings and Conclusions ,_ 14.. .~ '~OUnited States Constitution ~
!irst .A.1nendInent _.................................... 5, 6
Opinion of the Milmesota Supreme Court, Hen.
• Co, '.
.!
12
CD
iL Eighth Amendment : 5, 6 en.
nepln ounly ,..:: lc.
o
»
:= • '0 TABLE"OF A UT~OBlTlES
Ninth AmendInent
Fourteenth Amendment
3, 5, 6, 18, 19
3, 5, 6, 11, 13,17,18,19
I ',0
".~

I::J

I ;: s:
(

Q) Oases: ....
(")
:::J Bates v. City of ;Little Rock, :~61 U.S. 516 (1960) ......_.. 12 ~ BuEe:
Boddie v. Connecticut, 401 U.S·.,371 (1971) 11, 12, 13, I.
~
r,: Minn. R. Civ. P. 52.01 _ _ .
5 Ei
3
(1) I I.~
Cohen v. California, 403 ·U.S. 15 (1971) If 0
::J
~
Federal Statute:
28 U.S,C. ~1257(2) _ ..
2 Ii .i,3
0; c:

I'V
Q)
~
Griswold v. Connecticut, 3S1 U.S. 479 (1965)
" o' 0

Jones v. Hallihan, W~i52.io (Ct. A'pps. Ky. 1971) ......_ 10


11, 12, 13.
14,18,19
State Statute: .. ­
I I'· ~
t-':
r'. :l
(1)

o
Minnesota Statutes'
Chapter 517 2,4,6, 13 I W
o Loving v. Virginia; 388 U.S. 1 (1967) 11, 12, 13, If, II
o o , • 15, 16, 18, 19 Other Authorities: 1 , ;-"
,
o 9 \ ,~
c.n
....Jl.
McLaughlin v. Fi o'rida,3't9 U.S. 184 (1964)
o

.13, 16, IS
A.brahamsen, Crime and the Human Mind 117 (1944)

,j ··0
en
Meyer v. Nebraska,'262 U.S. 5115 ·().923) .11, 12, 13 Churchill, Houlosexual Behavior Among Mallls 19

Mindel v. United, States Qivil 'Service Conunission, (1969) _ _ _ _ .


8 li :i~
.....
312 F. Supp.48.5 {N.D: CaL 1970) _ 18 Final Report of the Task Force on Homosexuality of l ;
'll\J

the National Institute of Mental Health, October 10,


9
t ,,!g
Reed v. Reed, 92. S. ·Ct. 251, 30 Ii. e'd.2d 225 (1971) _..13,16,
o I .' 0.0 17,18
'0
1969 _ "-
Finger, Sex Beliefs and Practices Among Male Oollege
.
\ to

,\
Royster Guano C9. v. Virg,inia, '2l;3 U.S. 412 (1920)
o
I
17 Students, 42 J. ABNORMAL ,urn SOCIAT. PSYCH. 57
:
1,0)
I: CO
CD

I
Shapiro v. Thomp~()n; ..39.4 U;S. 618 (1969) (1947) _............................................................. 7
Shelton v. Tucke!,', 3~ U.S. 479 (1960) _
Skinner v. OkIaho~a, ..3·lG U.S. 53rJ, (1942) :
16
_....... 14
.11, 12, 13
Freud, 107 Am. J. of psychiatry 786 (1951) (reprinted) 10 o

;W
10

Street v. New York, 39~ U.S" ~76 (1969)


• 0 ,
14 . \! 3

"I .'
I
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U

'i
l~
FlO
Q)
iv en
IN THE
CD
00
rAGa .;,
Hart, Law, Liberty and Morality 50 (1963) 9. &uprtmt QIUurt nf ·t1Jt lInittb &tutts ;'1 .
': (0
;'
'0
0
OCTOBER TERM, 1972

'I'~o
James, The Varieties of Ueligions Experience, lectures
XI, XII, XIII (~902) ,..: _ ~ _._ _.._... 8 No .

;1\>
,00
M.u.E (1948) 7
..
KrNSEY, SEXUAl, BF;HAVIOR
. .' IN THE HUMAN ,0>
. RICHARD JOHN BAKER, et al.,
, I

Westermarck, 2 Origin and Development of the Moral


Appellants, ..0
Idea 484 (1926) , _ _ _................. 8
-V.­ ~

GERALD R. NELSON,
':;(JS:
G>
tr

i
Appellee.

,'. ON" APPEAL nOM THE SUPREME COURT OF MINNESOTA


I}~O

,,;; 0
ro' 0
,.;. C
3
I 'CD
:::l
JURISDICTIONAL STATEMENT l
.-+

'~

Appellants appeal from the judgment of the Supreme


Court of Minnesota, entered on October 15, 1971, and sub­
I

I
W
I

,.:'
.
mit this Statement to show that the Supreme Court of the
"United States has juriadiction of the appeal and that a sub­
stantial question is presente<i. .
I '1~

~ Ia.

! '!j~-
I ;0
:
,,"
.......

.......

"

OpiniODS Below "


.' . ---..
I ...., I\>
The opinion of the Snpreme Court of Minnesota is re­ ;"·0
, • I I~(O
." II
ported at 191 N.W.2d 185. The opinion of the District

I"
111\ Court for Hennepin County is nnreported. Copies of the .·1

~:! "'U

opinions are set out in the Appendix, infm, pp. 10a-17a and , :.•j Q)

.;
18a-23a. 1
m
iCD
,.•• 1, ,
I
.
i :f~
I i):
:, • I
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f
II
1
I
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3
2 ~
(J)
00
QUestiODll Presented <:;
lurisdietlon
,,' CO
I
1. Whether appellee's refusal to sanctify appellants'
This suit originated througn an alternative writ of man.
damus to compel alJpellee,tu issue the marriage license to
marriage deprives appellants of their liberty to marry ~o
and of their property without due process of law UD­ oI\:)
appellants. The writ of mandamus was quashed by the
der the Fourteenth Amendment. 00
Hennepin County District Court on J'a.nuary 8, 1971. On 0>
I
appeal, the judgm~~t of the S~preme Court of Minnesota 2. Whether appellee's refusal, pursuant to Minnesota I:)
affinning the action, of the Dilltr~ct Court was entered on marriage statutes, to sanctify appellants' marriage o
October 15, 1971. Notice of Appel;Ll to the Supreme Courl
.,
because both are of the male sex violates their rights c;>
of the United States' was 'tiled in the Supreme Court or under the equal protection clause of the li'ourteenth ~
Minnesota on JanuarY,.10, ]972. Tbe time in which to file Amendment. 5
this Jurisdictional. 'Statem:eilt was extended on January 12, 3. Whether appellee's refusal to sanctify appellants'
1972, by order of Justice nlackmun. I:)
, '
marriage deprives appellants of their right to pri. o
TIle jurisdiction of' the' Supreme' Court to review thia vacy under the Ninth and Fourteenth Amendments, g
decision on appeal is confe;l'red by Title 28 U,S.O., See­ 3
(J)
tion 1257(2). Slatement of the Calle' a
fl\:)
Appellants Baker and McConnell, two persons of the 101
,j I
': :Slatutea Involved l 'i'lIW
male sex, applied for a marriage license on May 18, 1970 I:
!
., Appellants have' never been a~v~sed by appellee which (T. 9; A. 2, 4) at the office of the appellee Clerk of Dis­
statute precludes tlle isstiap,ce of 'the marriage license to trict Court of Hennepin County· (T. 10). I' i''j ai'
them, and the Supreme coi~rt of Mhmesota cites only Chap­
I
"T1
'.. a.
ter 517, Minnesota, ,Statutes, .in its ,opinion. Accordingly, I T. refers to the trial trallflCript, 'A. refers to the Appendix to \I ,'0
the whole of Chapter 51", is r~pr~dllced in App., infra, pp. appellants' brief before the Minne!lOtII. SUI,reme Court,
I
::,~
.;::~
la.9a.' " I
• Appellant McConnell is also petitioner before this Court in I j;~~

1I U
f'
I •
McColl'lWlU v. Ander,O'n, petit. for cert. filed., No. '11·978 in which 1'~i\5
he seeks review of the decision of the United States Court of Appeals
for the Eighth Circuit, allowing the Board of RegentJI of the Uni· ,:10
','0
, tJ co
·'r versity of Minne!lOta to refuse him employment 81 head of the
,; catalogue division of the St. Paul Campus Library on the groWlds
,. that "Ilis personal conduct, as reprBllllnted in the public and Uni.
versity news media, is not llonsistent with the best interest of the I "'C I!
'.,J '"

., J~
I

University." ,
The efforts of appellants to get married evidently percipitsted
the Regents' decision not to employ Mr. McConnell. "01
"0
, I "...."
'I ,I

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'" ....
,J"J(')
" till)
4 5 C/)
CD
,:." CX)
Upon advice of,',the office of the Hennepin County At. ,. ." The matter was tried on January 8, 1971, in District o
torney, appellee acce}Jted appellants' application and there­ :1::, Court, City of Minneapolis, Judge 'l'om Bergin prtllOiding ~
upon requested a -forulal:opinionof the County Attorney (T. 1). Appellants Baker and McConnell testified on their
, own behalf (T. 9; 'I'. 15) as the sole witnesses. After clos.
~o
(A. 7-8) to determ'ine whether the marriage license should
be issued. In a letter dated May 22, 1970, appellee Ne1loD ing arguments, he quashed the writ of mandamu8 and ~
CX)
notified appellant Baker he wt\s Clunable to issue the mar· { ordered the Clerk of District Court "not to illsue a mar­ a>
I
riage license" because IJsufficlimt legal impediment lie. riage license to the individuals involved" (T. 19). An or­ o
»

::+
thereto prohibiting the marriage of two male parsou"
(A. 1; T. 11). However, ~either. appellant has ever ~D
der was signed to Ulilt effect the same day (App. infra,
p. 128).­
';10
(')
~
I

Q) informed that he it! individually incompetent to marry. Subsequent to the trial, counsel for appellants moved r
G)
(') and no specific r~il.8on' hal;":ever been given for not issuing the court to find the facts f:Ipecially and state separately
:T the license. ' its conclusions of law pursuant to Minn. R. Civ. P. 52.0l.
3
Minnesota Statutes,' section 517.08 states that only the Judge Bergin then made certain findings of fact and con· '-0
o
CD following information will, be elicited concerning a Dill· ',"", elusions of law (App. infra, p. 140.) in an IUUtmded or­ (')
c:
:J
ll""'+ riage license: name,' residence,' date and place of birth. der dated January 29, 1971. Such findings and conclusions
were incorporated into and made part of the order signed ~
race, termination' of previous marriage, signature of ape
I\.)
plioant and date ,,!igned. ~thou.gh they, were asked orally January 8, 1971. TIle Court found that the refusal of ap­ I. "a
i
'0'1
I\)
Q)
ll""'+ .",. "1/'
at the time of 8IJPllcatioil. which ,was to be the bride aod
which was to be the' groom (T. 15.; T. 18), the forms for
pellee to issue the marriage license was not a violation of
M.S. Chaptet· 517, and that such refusal was not a viola­
i; !,'w ~
o application for a Irlal:riage ,licen8~'did not inquire as to the tion of the First, Eighth, Ninth or }4'ourteentb Amend­ I
! ,,,
I

o sex of the applicants~ Ho~ever, appellants readily conoed. ments to the U. S. Constitution.
o 1 :(0"
o that both are of th~' male seL A timely appeal was made to the Supreme Court of , 0.
CJ1
~
Subsequent to ilie ,denial' of Ii li~ense, appellants consulted
with legal counsel. On lJecember 10, 1970, appellants apo
Minnesota. In an opinion filed 'October 15, 1971, the Suo
preme COlU·t of Minnesota affirmed the action of the lower
':10
,
:.. a>
­-

! . ....Jl.
;-'"
plied to the District Contt of
I Hennepin County for ID court.. ,

k~
alternative writ of' :JJlliIld~u~ (A. 2), and such a writ wu ,. a In early August, 1971, Judge Lindsay Arthur of Hennepin 0
timely served up,on, ~ppellee.' 'Appellee Nelson continued County Juvenile Court issued an order granting the legaladoptioll "1 co
to refuse to issne .the appellants'l\ marriage license. In· " of Mr. Baker hy Mr. McConnell. 'l'he adoption permitted Mr.
stead, he elected to appear in co~t, show cause why he
Baker to dllmge his name from Richard John Bilker to Fat JJynn
McConnell. On August 16, Mr. MiclllLel MeOonnell alolle applied '+0
had not done as commancled,'.imd make his return to the for a marriage licellse in Mankato, Blue l~arth COlmty, Minnesota
..
1 :~CD
writ (A. 4). " '
,
for himself and Mr. Baker, wilo uaed the Dlt,me l'at Lynll MoConnell,
Under Minnesota law, only olle Jlarty need apply for a mlLJ'riage
license. Since the marriage liaenae application does Dot in1luire as
I ,ta>
,', • I
1"
I
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I I
l~
....

3
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..' 6 'T (")



(fl
CD
.~ neither the question nor the proposed relationship is bi.
How the F~eral Questiol~a Were Raised (Xl
~ ISrre. Indeed, that ftrst impulse provides us with some (;;
Appellants contended th~t if Minnesota Statutes, Chap­ t measure of the continuing impact on our society of preju­ (0

ter 517, were constrlH:d so as to not allow two persolls 01 ;. dice against non-heterosexuals. And, as illuminated within
the context of thie ease, thie prajudice has severe conse­
~

the same sex to UlIll'ry, then the"Statutes were in violatioD


of tbe Ic'irst, Eighth, Njntll, and F'ourteenth Amendments quenoes.

»
ro+­
r0+­
to tho United States Constitution in tlleir Alternative Writ
of Mandamus (App. in!ra" pp. lOa-11a), at the hearing .
The relationships contemplated is neither grotesque nor
uncommon. In fact, it has been established that homo­
o
m
I
o
O) before the Hennep~ri ..Vounty:' District Court on January 8­ :.I' sexuality is widellpread in our society (as well as all other
(") 1971 (App. infra, 'p, 1-20.), 8:nd to the Supreme Court or c:"
::r Minnesota (App. infra,.,p. U:la). l'hes~ constitutional clainll
societies). Reliable studies have indicated'that a signif­
I s:
r
icant percentage of the total aoult population of the United I
G)
3
(1)
were expressly co~sidere~ an.~ rejected by both courts
below.
.~,

~.
States have engaged in overt homosexual practices. Nu­ !
merous single sex marital relationships exist de facto. See,
::J e.g., A. KINSEY, SEXUAL BEHAVIOR IN THE HUMAN M....LE
I '0
o
ro+­
I\.)
The Q~e.stions Are, Substantial

I. • •
(1948); Finger, SefC Beliefli and Practices Among Male
OoUege Students, 42 J. ABNOlWAL AND SOCIAL PSYOR. 51
I

I
'(
C'>
c:
3
The precise question' is whether two· indiViduals, solely CD
Q)
r0+- because they are of ~he s~lle ,Hex, ~~ay be refused formal
(1947). The refusal to sanction such relationships is a a
I
'"
denial of reality. Further, this refusal denies to many
o legal sanctification or; ratificatipn ·~f their marital rela. people important property and personal interests.
gO'!
I
o tionship. '. e,.)

o ". : 01".
This Jurisdictional Statement undertakes to outline the. I
•l
o At :first, the question and .the ,proposed relationship may substantial reasons why persons of tIle same sex would
:I!
c.n
c.n . " II
well appear bizar;r&'-especialJy jo heterotlexuals. Bnt
. , ,I' II
want to be married in the sight of the law. Substantial
property rigllts, and other interests, frequently turn on I
CD
a.
o
to &eX, the bisexual n/ArDe o~ 'l?!Lt LYnn McConnell doubtlesa kept
the clerk from makiug /AllY b,lIjuiry about the seXell of the parti",.
,: legal recognition of the marital relationship. Moreover,
,~ both the personal and public symbolic importance of legal I
~
...lo.

"
Shortly after the license. il!Ill,led, Mr. McCoonell's adoption of :Mr.
Haker WIIS made puhlic .by"Judge Arthur~olltrary to Milloeaola
law. '1'he County AttorLley lor BlUll Earth County then discovered
:; ratification of same sex marriages cannot be underesti. I
...lo.
\I ......
J~
mated. On the personal side, how better may two people ,~o
that a marriage license had issued to,t11e RIlJlellantB, and on AUglI8t
31, he "declared the liceJl~e void. on dtatutory growlds." Nevertbe-. ! pledge love and devotion to one anotber than by marriage. (0

lelllf, on September 3, tllll AllpelIaotB' were married in a private On the public side, prejudice against homosexuals, which
ceremony in South MinneallOlis.. Aoo"!1t a week later the licenlle
was lIellt to the DIue Earth Gounty_.Clerk of District Court. It II
tends to be phobic, is unlikely to be cured until the public
"i, Ii~"O
l),)
not known whether lie tiled it, IlIlt. under the lI1i,lllesotli statute '.: acknowledges that homosexuals, like all people, are en­
filiug i~ not required. ~'urtller.. lIlillg doss' not affect v~idity. :ICD


' .. titled to the full protection and reCOb"Dition of tbe law. I

" -."
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,...lo.
;Ie,.)

i .
3
IL

,,'

8 9 C1
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en
Only then will the pnblic Ilerceive Olat homosexuals are sexuality causes earthqnakes. H. Hart, Law, Liberty and CD
Q)
not freaks or UDfortl,lJlllte nbben1tioDll, to be swept UDder Morality 50 (1963). (:;
the carpet or to be re~erved for ahxioull pliantasies about ep
one'll identity or child· rearing t<JCIUli~IUOli. There is now responsible evidence that the public at­
" titude toward the homosexual community is altering. Thus, ~
o
A vast literature reveals',' several' flypotheSetl to explaill the l'inal Report of the 'l'ask Force on Homosexuality of
the deep prejudice againtlt. ll,omolle~uals. One authority
maintained that hostiltty to he,moll6Xuw conduct WAll orig.
the National Institute of Mental Health, October 10, 1969, ~

en
states (pp. 18·19): I
inally an "aspect of \ltlOnOmiCIl," in thatit reflected the eco. o
nomic importance of lurge' fuintly groupings in padara! "Although many people continue to regard homo. o
and agricultural llocretitlll. E. Wcstnrlllarck, 2 Origin aDd sexual activities with repugnance, there is evidence ~
Development of the Moral Idtlo. 484 (1926). A second that public attitudes are changing. Discreet homosexu­ s:

theory suggests that' h~mosexl1ality was originally forbid. ality, together WiUl many other aspect!! of human sexual G)
behavior, is being, recognized more and more as the
den by the "early Hel>~e.w8" as part. of effor,ts to "surround
".,the appetitive drives witltprohibitions." W. Churchill, private business of the individual rather than a sub.
Homosexual Behavior Among Malas 19 (1969). Under this ject for public regulation through statute. Many homo~
theory, opposition to homollex;uality' ~as clollely related to sexualsare good citizens, holding regular jobs and
religious imperativesl ''ill particuiar "the need to establish leading productive lives."
moral superiority ov~r. pagan
..
sects. Id., at 17; see also
~ To a certain extent the new attitudes mirror increasing
W. James, The Varieties of Religious Experience, lecture. scientific recognition' that homosexuals are "normal," and
XI, XII, XIII (1902.).' " ", ' ,..' that accordingly to penalize individualtl for engaging in
'/,,1'
Whatever the appropriate ~Xp~8nation of its origins, psy. such conduct is improper. For example, in D. Abrahamsen,
chiatrists and sociologish ':U"e more nearly agreed on the Crime and the Human Mind 117 (1944), it is stated:
reasons for the per~itlte,rice of the ~ostility. It is one of ".All people have originally Ilisexual tendencies which
" '
those ''ludicrous and }lartUful" prohi~itions by which virtu. are more or less developed and which in the course
ally all sexual matterg are still. ,reckoned "socially taboo, of time normally deviate either in the direction of male
illegal, pathological, or highly controversial." W. Churchill. or female. This may indicate that It trace of homo.
supra, at 26. It eontinu~I:;; all it may'~ave begun, q:Uite with. sexuality, no matter how weak it may be, exist! in
out regard to the actual cll.e.raf1~etiStics of homosexuality. every human being."
It is nourished, 8lI are the various other sexual taboos, by
an amalgam of fear a:nd igll~l·ance.: ,IiL, at 20-35. It ill sup­ .~. Sigmund Freud Bummed up the present overwhelming
ported by a popnlar"cpnc&}ltiqJ). of the causes and charac­ attitude of the scientific community when he wrote as fol­
teristics of homosexuality that'is no 'more dellerving of our lows in 1935:
reliance than the ~rnperor Justqlian's belief that homo.

i
!~;
10 11 _,\1
(")
Q)
!.',
en
"Homosexuality is. assuredly no' advantage but it i' CD
I. 00
nothing to be ashamed of, no vice, no degradation, it (;
cannot be classified as an iIln(!l!IS; we consider it to ~ ~1' Respondent'. refusal to sanctify appellants' marriage CO
I
:,
a variation of the sexual .f!lJlction produced by a Cfl. deprives appellants of liberty and property in violation o
tain arrest of sexual dl!vE!lopment. Many highly J't'. of the due process and equal protection clausee. "F

»
spectable individl~8Ig of ancjent and modern timel! ltavE!
been homosexuals, .several 'of the greatest IRen among
The right to marry is itself a fundamental interest, fully
protected by the due process and equal protection clauses
~
0)
them (Plato, Micliel~ng\!lo"Leonardoda Vinci, ek.). o
I

fit
n
It is a great injus.tice to llerSllcute homosexuality as a
crime and cruelty too." 'Heprinted in 107 Am. J. of
of the Fourteenth Amendment. See Boddie v. OOMecticut,
401 U.S. 371 (HJ71); Loving v. Virginia, 388 U.S. 1 (1967) ;
o
c;>
Griawold v. Om1UJcticut, 381 U.S. 479 (19(5) i Skinller v. .,.5:
::T Psychiatry 786·87 (1951).
Oklahoma, 316 U.S. 535 (1942); Meger v. Nebraska, 202
3 In the face of scientific knQwledge and changing public U.S. 535 (1923). In addition; signiftcant property interests, 5
(1)
"iittitlldes it is plainly; all' Freud sa1d, "a great injuetiee lf also protected by the aue procell8 clause, flow from the
::::J legally ratified marital relationship. In his testimony at
r-+ to persecute homosexu~ls. . I ' .....

f\.) the trial, the appellant Baker enumerated six sueh in­ i
Tliis injustice is COJ,llIJUun<;l.'ed, we Buggest, by the fad II
terests which he cannot enjoy because of the State's re­
Q) that there is no jUlltmcation in law for the discrimination I
r-+ fusal to recognize his marriage to the appellant McConnell:
against homosexuals. ·J3eca.use, oi~bi~iJig prejUllice, appel.
o
o lants are being depl"\ved of: a ba8i~ right-the right to
marry. .As a result or. this ci~)Jri~ation, they have been
1. The ability to inherit from one another by intestate
sUc<lession.
!
o
o
, r"I'
denied numerous benefits .awarded by law to others llimi.
larly situated~for ex~m"pl~, childle~B'h~terosexnal couples.
2. The availability of legal redress for tlle wrongful
death of a partner to a marriage.
II
CJ'1

I:
iI
~ " . Since this action h~\l. '~~e'n flIed, others have been inlti. The ability to sue under heartbalm statutes w}lere
tuted in other states." 1'his Cpurt's I decision, therefore, i
in efiect.
would affect the marriage ·Ia~s. of, virtually every State
Legal (and cO;Jlsequently commu~ty) recognition for
I1
in tl1e U n i o n . ' .. . I
I
, their relationship.
. I

5. Property benefits snch· 8iI the ability to own prO}1erty


by tenancy-by.the-entire~yin states where permitted.
I
"

6. Tax benefits under both .Minnesota and federal stat­


utes. (Among others, these ulelude death tax benefits
~ See, e.g., J{)fIBS v. lJallihan,:W,152.70, (Ct. Apps. Ky. 1971).
• 'r.
12 13

and income tax .penefits~ve!1 under t)le revised Fl'll· relationship are of the same sex is precisely tbe kind of
eral Income Tax' Code. ) arbitrary and invidiously discriminatory conduct that is
prohibited by the Fourteenth .AmenWIlent equal protection
'" There are innumerlloLle (jth~r legal advantages that C&II and due process clauses. Unless the refusal to sanctify
be gained only in the marital relationship. Only a few of ean be shown to further Ilome legitimate government in­
these will be listed "f~.r illuilt.i'ative ilUrposes. Some 8tal~ terest, important personal and property rights of the per­
cl'iminallaws pro}libit sexual sets between unmarried per. sons who wish to many are arbitrarily denied without
sons. Many gove~~lent' benefits are available only to due proeess of law, and Ule class of persons who wish to
»
,.....
,.....
spouses and to surviving spouses..This is true, for ex·
ample, of many veteral;ls 'benefits. Rights to pnblic housing
engage in single sex marriages are being subject to in·
vidious discrimination. Witll regard to the due process
Q) frequently turn ona Inl\rita,l relationship. Finally, when component, see Boddie v. CO',mecticut, supra; G,-·istvold v.
(")
there is a formal ml;\~ital relatioD~hip, onEl spouse cannot CO'Wnecticut, supra (all the majority oviuions); Meyer v.
::T ".give or be forced to give evidence' against the oilier. Nebraska, supra. With regard to the equal protection com­
3 The individual's iIitel:ests,' pers6l\fl:l:and property, ill & ponent of this argument, see Loving v. Virgi1,ia, supraj
CD marriage, are deemed fundiu~ental.:" See, e.g., Boddie v. McLaugh.lin v. Flo,-ida, 379 U.S. 184 (1964); Skinner v.
,.....
:J
CO'/lJnecticut, supraj Lo~ing' v. Virginia, supraj Griswold Oklahoma, supra; cf. Reed v. Reed, 92 S. Ct. 251, 30
I\J v. Comecticut, 8UpraJ"S~~ner v, Oklahoma, supraj Meger L. ed.2d 225 (1971).
v. N~braska, S'Upra:', T}lllS' .Iilarria~e comprises a bundle Applying due process notions, in this case, the state has
,.....
II
Q)
of rights and interests, wlllcn. maY"not be interfered with, not shown any reason, much less a compelling one, for
o . I. ,\ under the guise of protectin~ the public interest, by· gOY· refusing to sanctify the marital relationship. Its action,
o ernment action which' 16 .ar~itra~y or' invidious or without therefore,· arbitrarily invades a fundamental right.
o at least a reasonabla; rllh~tion to sOlDfil important and legiti­ Separately, eacll appellant is competent to marry under
o mate state purpose. E.g: 1fl'eyer v. ',Nebraska, supra. In the qualifications spccified. in Minnesota Statutes Sections
CJl
(X)
fact, because marriage is'~ fundamental human right, the
state must demonstrate ~ 81lborCll,n,ating interest which is
compelling, before it. may ·interfere,.with or prohibit mar­
511.08, subd. 3, 517.02-517.03. Compare [,oving v. Virginia,
S'Upra. Why, then, do they become incompetent when they ! ,.­o
j ~~
Q?
seek to marry each other' :~ I\)
riage. Cf. Bates v. Oity of Liitle."R~ck, 361 U.S. 516 (196().
~g
I
The problem, according to the Minnesota Supreme Court,
In a sense, the ana,l·ysis presented here involves a mixing appears to be definitional OJ: historical. The institution of 'l~(O
of both due process'.: a~d. eq.ual ptotection doctrines. As marriage "as a union of a man and a woman, uniqnely ',".J
they are applied to tHe 'kind \if government disability at
I ,w~
li:'~:1J
involving tile procreation and rearing of children within

I
,;' Q)
issue in this case, ho~ev~r,' they ten'd to merge. Refusal a family, is as old as the Book of Genesis" (App., infra, lot
H. JCD
to sanctify ll. marriage solely because both parties to the pp. 200.-21a). On its face, however, Minnesota law neither I
·ilU....l..
.: .'
f,,'O
:10
',-..
~-i.
CJJ

\
14 15
states nor implies this definition. Fl.Il'tliermore, the antiq. clearly a socially acceptable form of procreation. It already
uity of a restriction cel'bunly ~iaa TlO buating on its consti. renders procreative lllany marriages between persons of
tutionality, and does nol, without anything additional, lIt'ln. opposite sexes in whi.ch the partners are physically or emo·
onstrate that the state'!! illttlret;t 4·1 cncuDlbering the mat-ital tionally unable to conceive their own children. Of late,
relationship is sUbordin1i.tin'g and compelling, ConnectiCllt'lI even single persons have become eligible to be adoptive
restriction on birth controhreviclill had been on its statute parents.
books for nearly a centu·ry, before ~his Court struck it down Appellants submit lherefore, O,d tlle appellee CLLnnot
on the ground that it tUiconstitntionally invadl!l1 tlle pri. describe a legitimate government .interest which is so com·
vacy of' the Itlarital rel~tionllilip. Gr·iswold v. Oonnecticut, pelling that no les8 restrictive llIeans can bc found to se<lure
supra.
that interest,if there is oue, than to proscribe single sex
'.' "Surely the M;.nnesota'SUI,rellle COlirt cannot be suggest. marriages. And, even if the lest to be applied to determine
ing that single sex marri,ag{ls n.l8.y, be;b4illied because the)' whether the Minnesota pros~ription offends due process
are con8idere~ by a larg~.,lieglllerlt o! oa'r population to be ; involves only questions of wbether Minnesota has acted
socially reprehensible. 8"c1l a governmental motive would arbitrarily, capriciously or unreasonably, appellants submit
be neither substan,tial" .nor. "Subordinating nor legitimatt'. ..~. that the appellee has failed under tllat test too. Minne·
See, e.g., Loving 'v:Viigittia,· &uprd; C(J]&en v. OaliforniJz, , sola's proscription simply has not been shown to be ration.
403 U.S. 15 (HJ7l~; S~re£~t ~.. ,NeW"'yo1'k, 394 U.S. 576 ally related to any governmental interest.
. ', ,\ (1969). '. , .
The touchstone of thc equal protection doctrine as it
Even assuming that g~v~i:lil;lent..could constitutionally bears on this case is fOlmd in Loving v. Vit'ginia, 388
make marriageability tii~il on the ll,arr\~ge partners' will. U,S. 1 (1967). 'l.'he issue before the Court in that case
"
. ingnells and ability to procreate. and 'to raise children, was whether Virginia's anti-miscegenation statute, prohibit­
Minnesota's absolute bap op· .lIi~gle.':!lex marriages would '. ing marriages between I)Cl'80ns of the Cau('.asian race and
still be unconstitutional. ''[}In-ven tl\l~'ugh the governmental any other race was nnconstitutional. The Court struck
purpose be legitima.te and substantial,: ~hat purpose cannot down the statute saying:
be pursued by means that hroadly':stifle fundamental par. There is patentJy no legitimate overriding purpose
sonalliberties when the 1\,n<1. call' be Inpre narrowly achieved. independent of invidious racial discrimination which
The breadth of' legislative' abridgment' 'must be viewed in justifies this classification. The fact that Virginia pro.
the light of leas drastic means fp~"achieving the same basic hibits only interracial marriages involving wlJittl per­
purpose." Skelton v. Tuclcer., 364 U:S. 479, 488 (1960). sons demonstrates tha.t thc racial classifications must
There i8 nothing in tlle' n,atnre of 8il'!~ifl sex marriages that stand on their own justification as measures designed
precludes procreation an.~ child reari~lg. Adoption is quite to maintain White Supremacy. We have consistently

. ."'.
3
(')
16 11 l»
(J)
,'j: (I)
;,
denied the constitutionality of measures which restrict which held that an Idallo statute, which provided that as (X)

the rights of cit~~ns on ':account of race.' There caD between persons equally qualified to administer estates oCO
be DO doubt tliat restricting the freedom to marry males must be prefurred to felnales, is violative of the •
solely because of'ratlilj,l .cla.ssifications violates the cell­ equal protection claui:Se of the Fourteenth Amendment. ~
o
tral meaning of ~he"l~qual p'rotcction Clause. LOlli", There the Court said (30 L. ed.2d at 229) : o
I\)
v. Virginia, 388 U:S., at'11·12. In applying that clause, this Court has consistently, (X)
0'>
recognized that the ./i'ourteenth amendment does not I

The Minnesota SUpl'\:\ffie Court ruled that the Loving o


decision is inapplicable 'to the instant case' on the grollnd
deny to States the power to treat different classes of o
(')
persons in different ways. [Citations omitted.] The I
'" "that "there is a clear, di~tinctiOll between a marital relltrie· t~~
Equal Protection Clal1lle of that Amendment does, s::
lion based merely upon r~ce a'nd one .bAsed upon the funda. r
however, deny to States the power to legildate that G)
mental difference in Ilex!' (iPV:"inf;'a, p. 23a). It is tnte J' different treatment be accorded to perllons placed by
that the inherently sU~I~;ect test which this Conrt applied a statute into different classes on the basis of criteria
to classifications based upon race., (see, e.g., Loving ,. wholly unrelated to the objective of that statute. A
Virginia, supra; Mctauuhli~' v. 'Flqrida, supra), has not classillcation "must be reasonable, not arbitrary, and
yet been extended to cl~ssifi~tions' based upon sex (see must rest upon some ground of difference having a
'/, ~ ll(~ed v. Reed, 92 S. ct: 251, 30' L. 00.2<1 225 (ID71». Huw.
fair and substantial relation to tIle ohject of the legis­
ever, this Court lIas 'indic8.~ed that whEln a fundamental lation, so that all persons similarly circumstanced
right--such as mardage-.:...is denied .to a group by some shall be b'eated alike." Ruyster' Guano Cu. v. Virginia,
I classification, the dertial ~l~olllil be jn4ged by the standard
253 U.S. 412, 415 (1920).
that places on government the.'burden of demonstrating
a legitimate subordinating, intet~s~ that is compelling. Childless same sex couples, for example, are "similarly ::!!
(I)
Shapiro v. Thompso.n, 394' U.S. 618,. (1969). As we have circumstanced" to childless heterosexual couples. Thus, 0­
already indicated neither a h~giti.Plate nor a subordinating under the Reed and Royster cases, they must be treated
reason for this classification, has' been. or can be ascribed.
Even if we assume that the classIDeation at issue in this
alike.
Even when judged by Ulis less stringent standard, the
,'~¥~ ::::.....~
/'~.
".
:'~
I\)
case is not to be jlldgea ,ilY"th~' more, stringent "constitu­ Minnesota classification cannot pass constitutionalm\lster. '~' 0
,'1\1,0
tionally suspect" and ~'s\lI~Qrdinating interest" standards, First, it is difficnlt to ascertain the ol>jl'r.t of the legislation .~J' CO
\. ,I.

::k~,~,~ ~
the Minnesota classifl.cation
.:
is i.n1irm.
.'
construed ):.y the M~nnesota 'courts. Second, wllatever ob· II'

The discrimination iiI this case is one of gender. Espe­ jects are ascribed for the legislation do not bear any fair
cially significant in this regl!-rd ,is the Court's recent de­ and substantial relationship to the grolmd upon which the , / (I)
,7.­
llision in Reed v. Reed,. 92 S. Ct. 251, 30 L. ed.2d 225 (1971),
. ." I;.,"i~0
1:,­.....Il.
• ~.
I," W
. "1', j[::"j.
I' !

I '

,;::"

18
19

a denial of the right to marry and to privacy reserved

difference is drawn b~t~een sallie sex and different sex ·.l'-'~

to them of the Ninth and ~'ourteenth .Amendment~, See


marriages.·
GriswokL v. ConnectiC'ltt, supra; Loving v. Virginia, 388
~ •." I,r'
, U.S. 1 (1967) j cf. Boddie v. Connecticut, 401 U.s. 371
II. ' I '
(1971). Indeed, it is the most fundamental invasion of
.,'
Appellee's refusal t~ ..Iegitibiilte. appellaills' ~ ~; the privacy of the marital relationship for the state to

I
constitules an unwarranted invasion of the privacy Ia attempt to scrutinize the internal dyna.mics of that rela­
violation of the Ninth· 'and Fourteenth 'Amendments• tionship. Absent a showing of compelling interest, or an

,
• I j'

I invitation from a party to the relationship, it is none of the 1\


Marriage between two perBo~ is, ~'personal affair, one state's business whether the individuals to the relationship
. " ,\ which the state may d~~y or. e'uC1;ullber only when there
is a compelling reason' to . do, ,so. Marriage and marital
intend to procreate or not. Nor is it the state's business to I
determine whether the IJarties intend to engage in sex acts
privacy are substanti~l, rights protected by the Ninth 'or any particular sex acts. Cf., e.g., Griswold v. Co'nnecti­
I, '
Amendment as well as·,tlie. Fourteenttl Amendment due
cut, supra. \
process clause. By not allowing appellants the legitimacy
of their marriages, the' sta;~e is. d~~y'ing' them this basic I
right and unlawfully meddliIig in thei!=, privacy. CONCLUSION
To hold that a l'ight so b~i~ ~hd f~ndamental
and
so deep-rooted in quI'. society as' the right of privacy
in marriage rnayb~",inftinged oocause that right is
For the reaSODS eet forth above, probable jurisdiction
should be uoted.
I
not guaranted in 80' ma~y \,vords' ,by the first eigbt Respectfully submitted, \
amendments to the Conl1titution is to ignore the Ninth
Amendment and to, ~ive it 'no' effect whatsoever.
:t."
R. MIOHAEL WE'twmBBE
Minnesota Civil Liberties Union
I
Griswold v. Connectiou.t, 381 U.S. 47U;'49l-492 (Goldberg, J., 2323 East Hennepin Avenue
Minneapolis, Minnesota 55413
concurring); see also, 1r!ittdel.v. 'U,titcd States Civil Serv­
I
ice Commissim, 312 F: 'SIl.Pp. 485· (N.D. Cal. 1970). Ac­ LYNN S. CASTNER Ir
cordingly, Miunesota's refusal' to legitimate the appellants' 1625 Park Avenue

"ii'l~);~: ; ;

marriage merely because of t1~e, sex of the 8}Jplicants is Minneapolis, Minnesota 55404
\,

• The fact that the partiea to the 'dl'sired fl8J1le sex marriage are Attorneys for AppeUants
not bllrred from marriage al t,"lCl'th~r: ill i~rell!vant to the eonatitu·
tionnJ jl<llue. See Reed v. RBlIll, 81lLJI'a; [..ol·'nu v. V,ryinie, .upra;
McLaughlin v. Florida, S1lpra,
II
!
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t 0
',­

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