The Texas Supreme Court today ruled that Governor Greg Abbott, while serving as the state’s attorney general, missed an opportunity to intervene in a timely fashion to challenge a same-sex divorce.
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.
Abbott issued a statement disagreeing with the court.
“The Texas Supreme Court’s decision is disappointing and legally incorrect. The Court mistakenly relied on a technicality to allow this divorce to proceed. Importantly, the Supreme Court did not address the Texas Constitution’s definition of marriage—and marriage in Texas remains an institution between one man and one woman. The Texas Constitution continues to stand as the governing law for marriage in the State of Texas. The State and all political subdivisions in Texas remain prohibited by the Texas Constitution from giving effect to a same-sex marriage or any document recognizing one—including the divorce decree in this case.”
The state’s high court said attorneys for Abbott were in district court in 2009 in Austin when Angelique Naylor and Sabina Daly received the legal equivalent of a divorce. They were married in Massachusetts in 2004. But Abbott’s office did not try to intervene in the case until the following day on the grounds that the state Constitution does not recognize same-sex marriage. The state’s high court ruled that once the trial court rendered judgment without challenge, Abbott lacked standing to bring an appeal.
The ruling only affected the state’s right to appeal, although Justice John Phillip Devine wrote a dissenting opinion defending the state Constitution’s provision on same sex marriage. The court majority wrote that the Constitution was not before the court because of the state’s untimely filing.
Like JUSTICE DEVINE, we would appreciate the opportunity to address the merits of this issue of critical importance at this crucial juncture in our nation’s history. Yet we must respect the bounds of our jurisdiction by addressing only the questions immediately before the Court.
Justice Jeff Brown wrote the opinion of the court and was joined by Chief Justice Nathan Hecht and justices Paul Green, Phil Johnson and Jeffrey Boyd. Justices Don Willett and Devine wrote dissenting opinions. All the documents are here.