Angelique Naylor and Sabina Daly were married in 2004 in Massachusetts, which began allowing same-sex marriage that year, but were granted a divorce by a Travis County judge five years later.
Two years later, then-Attorney General Greg Abbott appealed, arguing that because Texas does not recognize same-sex marriage, it could not grant a same-sex divorce.
On Friday, the Texas Supreme Court ruled that the state did not have standing to block the divorce, a ruling that does not alter the state’s ban on gay marriage but could have implications for future divorces.
In a 5-3 ruling, the state’s all-Republican high court said Abbott waited too long to intervene in the case, and, therefore, did not have standing to get involved.
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While the ruling effectively let stand Naylor and Daly’s divorce, it did not deal directly with the merits of granting such a divorce in a state that still bans same-sex marriage.
“The record reveals that the State, while fully aware of the public import of this private dispute, had adequate opportunity to intervene and simply failed to diligently assert its rights. This is not a case in which the State was unaware of the litigation or blindsided by the result,” Justice Jeff Brown wrote for the majority, which included Justices Paul Green, Phil Johnson, Jeffrey Boyd and Chief Justice Nathan Hecht. Justice Debra Lehrmann previously had recused herself from the case.
While a victory for Naylor and Daly, Brown acknowledged that the long-awaited ruling does not affect the state’s gay marriage ban. Added as an amendment to the Texas Constitution in 2005, the ban remains in place unless the U.S. Supreme Court overturns all such state prohibitions. The Supreme Court is expected to rule on the issue later this month.
“We would appreciate the opportunity to address the merits of this issue of critical importance at this crucial juncture in our nation’s history,” Brown wrote.“Yet, we must respect the bounds of our jurisdiction by addressing only the questions immediately before the Court.”
Friday’s ruling affirmed a lower court’s decision to block Abbott’s appeal because he did not intervene in a timely manner, effectively upholding the divorce.
Justices Don Willett, John Phillip Devine and Eva Guzman dissented. Willett wrote that the case “poses fundamental questions about the attorney general’s powers, including his ability to defend Texas law against perceived, implicit constitutional attack.”
“The attorney general may be right. He may be wrong. But he should be heard,” Willett added.
Abbott, now governor, and Attorney General Ken Paxton agreed with Willett, saying state officials should have been able to intervene. Paxton took that statement a step further, implying that the ramifications of Friday’s ruling go far beyond the one case.
“Today, the Texas Supreme Court effectively recognized same-sex divorce in Texas, contrary to the State Constitution, and without allowing the State to mount a defense,” said Paxton. “Preserving the integrity of the Texas Constitution must be paramount, and the Office of the Attorney General should always have a voice in the discussion when the Texas Constitution is at risk.”
Jack Sampson, a University of Texas at Austin law professor and an expert in Texas family law, disagreed that the ruling legalizes same-sex divorce, but it could encourage judges who favor more rights for same-sex couples to grant more in the future.
“You can’t say that [same-sex] divorce is now sanctified across the state of Texas,” Sampson said. But, “the judge that granted the divorce will probably feel free to grant other divorces.”
Court also lagged
“The most important implication of the ruling is that my client, Ms. Naylor, remains divorced,” said attorney James Scheske.“We were not seeking a broad constitutional ruling that would affect other couples. That was not the goal of our case.”
Because of an untimely death, Scheske said, the high court was spared the need to rule on another same-sex divorce case that could have set precedent on the issue in Texas.
The appeal the justices originally heard in 2013 included a second same-sex couple seeking a divorce. That couple, men identified only as J.B. and H.B., married in Massachusetts in 2006, and unsuccessfully attempted to get divorced in the Dallas area.
One of the men, however, since has died, saving the court from having to rule on their divorce, which had not yet been granted.
“The delay by the Supreme Court in both of these cases has really been unconscionable,” Scheske said. “It should not have taken the court this long to decide.”