No.

11-0024

FILED IN THE SUPREME COURT OF TEXAS 13 August 6 A9:31 BLAKE. A. HAWTHORNE CLERK

In The Supreme Court of Texas

In the Matter of the Marriage of J.B. and H.B., J.B., Petitioner, v. The State of Texas, Respondent.
On Petition for Review from the Fifth Court of Appeals at Dallas, Texas Case No. 05-09-01170-CV

PETITIONERS SUPPLEMENTAL REPLY ON WINDSOR AND PERRY

James J. Scheske, SBN 17745443 5501-A Balcones #109 Austin, TX 78731 (512) 371-1790 jscheske@austin.rr.com Jason Steed, SBN 24070671 3600 Aquamarine Dr. Round Rock, TX 78681 (512) 560-6620 profsteed@gmail.com Attorneys for Petitioner J.B.

Table of Contents Table of Contents ..........................................................................ii Index of Authorities .................................................................... iii Argument ...................................................................................... 1 Certificate of Service ................................................................... 11 Certificate of Compliance ........................................................... 12

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Index of Authorities
FEDERAL CASES Loving v. Virginia, 388 U.S. 1 (1967) ...................................................................................... 7 Romer v. Evans, 517 U.S. 620 (1996) .................................................................................. 8 United States v. Windsor, 570 U.S. --- (2013) .......................................................................... passim TEXAS STATUTES Tex. Fam. Code 6.204....................................................................... passim FEDERAL STATUTES 1 U.S.C. 7 (DOMA, section 3) .......................................................... passim CONSTITUTIONAL PROVISIONS Tex. Const. art. I, 32 ........................................................................ passim U.S. Const., Amdt. 5 ................................................................................. 1, 5 U.S. Const., Amdt. 14 ............................................................................... 2, 5

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Argument J.B. and H.B. were legally married in Massachusetts and filed an uncontested petition for divorce in Texas. An oppositesex couple legally married in Massachusetts would be able to obtain a divorce in Texas, and J.B. and H.B. are simply seeking equal treatment. This Court should construe Texas law as not precluding the trial court from granting an uncontested divorce in this case. See Pet. Br. at 519; Pet. Reply at 19. But if the Court determines that Texas law must be construed as denying J.B. and H.B. equal access to divorce, then the Court should hold that Texas law is unconstitutional. See Pet. Br. at 1941; Pet. Reply at 1023. The U.S. Supreme Courts reasoning in United States v. Windsor, 570 U.S. --- (2013), supports such a decision. In Windsor, the Supreme Court declared that the federal governments restriction of the rights, benefits, and protections of marriage to opposite-sex couples violated principles of due process and equal protection under the Fifth Amendment, because the laws principal purpose was to impose inequality on lawfully created same-sex marriages, treating them as second class. Slip Op. at 22, 25. Windsor is not about federalism. The Court stated explicitly that [t]he States power in defining the marital relation is of central relevance in this case quite apart from principles of
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federalism. Slip Op. at 18 (emphasis added). In other words, the Court explicitly rejected federalism as a basis for its decision. Instead, the Court held DOMA unconstitutional because it targeted gays and lesbians for disfavored treatment. Id. at 16, 20, 25. DOMA targeted homosexuals by interfer[ing] with the equal dignity of same-sex marriages, and by impos[ing] a disadvantage, a separate status, and so a stigma upon all who enter[ed] into same-sex marriages made lawful by the unquestioned authority of the States. Id. at 21. In short, the Court held DOMA unconstitutional because it violated due process and equal protectionbecause its principal purpose was to impose inequality by depriving legally married same-sex couples of their marital status, and by treating same-sex marriages as second class. Id. at 22, 25. In other words, Windsor is not about federalism and the federal governments supposed encroachment on state authority; Windsor is about the individual rights of due process and equal protection, and DOMAs violation of those rights. Windsors holding applied to federal law, but the obvious implication from the Courts reasoning is that state laws targeting gays and lesbians and treating same-sex couples unequally are likewise unconstitutional. See id. at 25 (Supreme Court incorporating the Fourteenth Amendment, which applies against the states, into its reasoning); see also Slip Op. (Scalia, J.,

dissenting) at 2223 (recognizing the inevitable conclusion to be drawn from Windsors reasoning: that state laws treating samesex couples unequally are unconstitutional). Faced with Windsors obvious implications, and taking its cue from Chief Justice Roberts lone dissent, the State parses Windsors dicta to claim that federalism was one of the key bases for the Courts decision. States Supp. Resp. at 610; cf. Slip. Op. (Roberts, C.J., dissenting) at 2 (claiming the majoritys decision was based on federalism). But no other justice on the Supreme Court was willing to join Chief Justice Roberts in his contention that Windsor was based on federalism. Most likely this is because the Court declared explicitly that [t]he States power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Slip Op. at 18 (emphasis added). Notably, this statement contains the only appearance of the word federalism in Windsors majority opinionand it appears only to be rejected as a basis for the Courts judgment. Eight of the Courts nine justices recognized explicitly that contrary to the States assertionfederalism was not a key basis for the Courts decision. See id. (5-justice majority explicitly rejecting federalism as a basis for its decision); Slip Op. (Scalia, J., dissenting, joined by Thomas, J.) at 15, 22 (recognizing that the majority explicitly rejected federalism as a

basis for its decision, and that the decision contained only noises of federalism); Slip Op. (Alito, J., dissenting, joined by Thomas, J.) at 6, 17 (recognizing that the majority relied on principles of due process and equal protection for its decision, and that its opinion contained only whiffs of federalism). In sum, by focusing on federalism the State misreads and misapplies Windsor. This Court should decline the States invitation to exaggerate the role that federalism played in Windsor, and should keep its focus instead on principles of equal protection and due process. Regarding these principles, the State contends that Windsors holding is still limited as (1) applying only to the federal government and (2) applying only to a law that was motivated by a desire to demean those persons who are in a lawful same-sex marriage. States Supp. Resp. at 11. This is almost right. It is true that Windsors holding applies only to the federal government. And J.B. has never suggested otherwise. But this case is about the constitutional guarantees of equal protection and due process as they apply to gays and lesbians, in the context of laws pertaining to marriage. See Pet. for Rev. at 1014; Pet. Br. at 1938; Pet. Reply at 1017. Because Windsor contains the U.S. Supreme Courts most recent reasoning about the constitutional guarantees of equal protection and due process as

they apply to gays and lesbians, in the context of laws pertaining to marriage, Windsor is irrefutably relevant to this case. As the Court itself made clear in Windsor, the guarantees of equal protection and due process apply against both the federal government and the states, through the Fifth and Fourteenth Amendments. Slip Op. at 25. Recognizing it must contend with Windsors reasoning at least on some level, the State argues that Windsors reasoning does not apply here because Texas law does not demean those persons who are in a lawful same-sex marriagebecause under Texas law there are no lawful same-sex marriages to be demeaned. States Supp. Resp. at 1112. The State likewise contends that it does not treat J.B.s marriage as second class because under Texas law J.B.s marriage simply does not exist. Id. at 15. These arguments are transparently circular and meritless. The State has previously conceded that J.B. and H.B.s marriage was legally created and valid under Massachusetts law, which means the State concedes thatat least before coming to TexasJ.B. and H.B. had a lawful marriage. The State must further concede that an opposite-sex couples out-of-state marriage would remain valid upon entering Texas, whereas Texas law on its face targets out-of-state same-sex marriages, to render them invalid. Tex. Fam. Code 6.204.

To demean, by definition, is to debase, or to lower in status or dignity. E.g., Merriam-Webster (2013), available at http://www.merriam-webster.com/dictionary/demean. It is difficult to see how the State can contend, with any seriousness or credibility, that its open effort to invalidate J.B. and H.B.s Massachusetts marriage, and to deprive them of equal access to a divorce, is not demeaning. It is difficult to see how the State can say, with a straight face, that it is not treating out-of-state samesex marriages as second class. The State tries to explain how it can give preferential treatment (which it labels protection and support) to oppositesex marriages without simultaneously imposing inequality on same-sex marriages. States Supp. Resp. at 1214. But in the end the State admits that Texas law does not treat J.B.s Massachusetts marriage as equal to an opposite-sex couples Massachusetts marriage. See id. at 14. In other words, the State concedes that its laws impose inequality on out-of-state same-sex marriages. Cf. Windsor Slip Op. at 22 (DOMA violated equal protection and due process because its principal purpose [was] to impose inequality on legally created same-sex marriages). The State says this is not proof that the motivation behind Texas law is to demean same-sex couples. States Supp. Resp. at 14 (emphasis in original). But this is a matter of res ipsa loquitur: Texas law intentionally treats out-of-state same-sex

marriages as less valid or lower in status than out-of-state opposite-sex marriages. This is demeaning. The State does not and cannot explain how its intentional, unequal treatment of outof-state same-sex marriages is not by definition intentionally demeaning to out-of-state same-sex marriages. Resorting to hyperbole, the State further asserts that J.B. is asking this Court to create federal constitutional rights never recognized by the U.S. Supreme Court. Id. at 10. But J.B. has merely asked the trial court to grant him the same uncontested divorce that would be readily granted to any other couple that had been legally married in another state. In other words, J.B. asks only that he be afforded equal protection under the law; that he not be deprived of his lawfully-married status without due process; that he not be unduly penalized for simply migrating from one state to another. The right of equal protection, the right of due process, and the right to travel are all well recognized by the U.S. Supreme Court. See Pet. Br. at 1938; Pet. Reply at 1017, 1921. And in Windsor, the Court emphasized repeatedly that a states laws defining and regulating marriage . . . must respect the constitutional rights of persons, and are always subject to those guarantees. Id. at 16 (citing Loving v. Virginia, 388 U.S. 1 (1967)); see also id. at 18, 19.

J.B. simply asks this Court to enforce well-established constitutional guarantees on his behalf. J.B. and H.B. were legally married in Massachusetts, but in their effort to obtain a divorce the State of Texas has openly imposed on them a disadvantage and a separate status. States Supp. Resp. at 1213 (insisting J.B. and H.B. must be treated as parties to a void marriage, and as not having the same protection and support that is provided to opposite-sex couples). Without question, the States actions conflict with the constitutional principles articulated in Windsor. Cf. Slip Op. at 21 (DOMA was unconstitutional because its purpose and effect were to impose a disadvantage, a separate status, and so a stigma upon lawfully-created same-sex marriages). The State argues it should not be forced to recognize out-ofstate marriages that are against its public policy. States Supp. Br. at 1820. Normally this is truebut, as the Supreme Court made clear in Windsor, the States marriage laws are subject to constitutional guarantees. Slip op. at 16. And laws that target gays and lesbians for disfavored treatment are unconstitutional. Id. at 21, 25; accord Romer v. Evans, 517 U.S. 620, 631 (1996). Finally, the State claims that a court-imposed constitutional obligation to recognize same-sex marriages would short-circuit . . . an important political process within the States. States Supp. Resp. at 78. This is wrong on two counts.

First, J.B. is not seeking any broad constitutional obligation to recognize same-sex marriages. The State misleadingly claims that J.B. is asking this Court for an expansive constitutional rule, id. at 21but J.B. has repeatedly and consistently sought the narrowest ruling possible. In fact, J.B. has asked this Court to construe Texas law narrowly so as to avoid a constitutional ruling altogether. See Pet. Br. at 519; Pet. Reply at 19. Second, if this Court must construe Texas law in a way that raises constitutional questions, then ruling on those questions and enforcing constitutional obligationsis precisely what this Court is supposed to do. The Courts job is to determine whether the States actions violate constitutional guaranteesand enforcing constitutional obligations in a way that short-circuits political processes is perfectly appropriate, because the political process is not permitted to produce an action that violates constitutional obligations. Windsor Slip Op. at 16 (state marriage laws are subject to constitutional guarantees). This Court should construe Texas law as not precluding the trial court from granting J.B. and H.B. an uncontested divorce. But if Texas law must be construed as denying same-sex couples who were legally married in another state equal access to divorce in Texas, thenfor the reasons stated above and for the reasons already presented in J.B.s prior briefingthis Court should hold that Texas law is unconstitutional.

Respectfully submitted, By: _/s/ James J. Scheske___ James J. Scheske State Bar No. 17745443 James J. Scheske PLLC 5501-A Balcones #109 Austin, TX 78731 Phone: (512) 371-1790 jscheske@austin.rr.com Jason P. Steed State Bar No. 24070671 Law Office of Jason Steed 3600 Aquamarine Dr. Round Rock, TX 78681 Telephone: 512.560.6620 profsteed@gmail.com Attorneys for Petitioner J.B.

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Certificate of Service I hereby certify that a true and correct copy of the foregoing Petitioners Supplemental Brief on Windsor and Perry was forwarded to counsel of record by email on this 6th day of August, 2013. James D. Blacklock Office of the Attorney General P. O. Box 12548 Austin, Texas 787112548 Email: jimmy.blacklock@oag.state.tx.us H.B. [address on file]

___/s/ James J. Scheske___ James J. Scheske

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Certificate of Compliance In compliance with Texas Rule of Appellate Procedure 9.4(e), this brief uses a conventional typeface no smaller than 14-point. And in compliance with Rule 9.4(i)(2), this brief contains 2,031 words, excluding the portions of the brief exempted by Rule 9.4(i)(1). /s/ James J. Scheske James J. Scheske

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