In 2010, Texas trial courts in Austin and Dallas granted divorces to same-sex couples. The State (through the Attorney General) sought to intervene in both cases — once before the formal divorce decree was issued and once after. Neither trial court permitted the intervention. The State took each case before its local court of appeals.

The Dallas Court concluded that the State should have been permitted to intervene and, further, that Texas trial courts lacked any power to issue a divorce for a same-sex marriage. The trial court was ordered to dissolve its decree, reinstating the same-sex marriage.

In its case, the Austin Court concluded that the State’s intervention after the decree had been ineffective and, thus, it lacked appellate jurisdiction to consider the State’s complaints. This divorce stood.

Where things stand in the Texas Supreme Court

The State filed a petition challenging the Austin Court’s ruling. The case is docketed as State of Texas v. Angelique Naylor and Sabina Daly, No. 11-0114 (more information). In this case, the divorcing couple has elected to waive its response, and the Court has not yet requested one.

The Dallas case was challenged by the couple who had sought a divorce. They filed a petition, which has been docketed as In re Marriage of J.B. and H.B., No. 11-0024 (more information). The State filed a response that — quite unusually for a party who won below — urges the Court to grant the petition and review the case to set a statewide precedent. The docket sheet also shows a referral to the Court’s pro bono program (which is a signal of the Court’s serious interest).

The Court has not yet set these cases for full briefing on the merits. Looking at the two docket sheets side-by-side, my guess would be that the Court is treating the two cases as linked and wants to get a response in the Naylor case before moving forward with both petitions. (( This may be the rare case where the Court chooses to grant review before seeing full briefing on the merits. If so, the Court might be waiting for a response to satisfy Texas Rule of Appellate Procedure 53.3 (“A petition will not be granted before a response has been filed or requested by the Court.”) ))

The first amicus brief

Yesterday, an amicus curiae brief was filed by Rep. Warren Chisum, former State Senator Todd Staples. (( For those who keep score on Texas politics, Staples now holds a different state job (Agriculture Commissioner). This brief clarifies that he is signing in his “individual capacity,” not as a state official. )) As would be expected from an amicus briefs filed by legislators about the laws they wrote, it urges the Court to conclude that the statute is constitutional. The Liberty Institute served as counsel on the brief.

The brief was filed in both cases, with slight tweaks to fit the procedural posture. In the Austin case, the brief (PDF) argues that the lower courts had “sub silentio” struck down the Texas statute by dismissing the State’s appeal on a procedural ground. In the Dallas case, the brief (PDF), like the State’s petition, urges the Texas Supreme Court to grant the petition for review and affirm.