No.

11-0024


I n The S upreme 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


P E TI TI O N E R S R E P LY TO
S TATE S B R I E F O N TH E M E R I TS


James J. Scheske (SBN 17745443)
Jason P. Steed (SBN 24070671)
Akin Gump St r auss Hauer
&Fel d LLP
300 West 6th St., Suite 1900
Austin, Texas 78701
Telephone: (512) 4996200
Facsimile: (512) 4996290
Attorneys for Petitioner J .B.
FILED
IN THE SUPREME COURT
OF TEXAS
11 October 10 P5:31
BLAKE. A. HAWTHORNE
CLERK
ii
Ta b le o f C o n te n ts
Index of Authorities .............................................................................................. iii
Argument ................................................................................................................. 1
I. Section 6.204 does not deprive the trial court of jurisdiction
over J.B.s petition for divorce. .................................................................... 1
A. The State misconstrues or ignores this Courts rules of
statutory construction. ..................................................................... 1
B. The State misconstrues the law of standing. ................................. 4
C. The plain text of section 6.204 does not prevent the trial
court from granting J.B.s uncontested divorce. ............................ 7
D. None of the protections the State described are at issue
in this case, and this Court does not decide hypotheticals. ......... 9
II. The States construction of section 6.204 is unconstitutional. ............ 10
A. The State fails to provide a rational basis for denying J.B.
equal access to divorce. .................................................................. 10
B. The State mischaracterizes the right at issue and
effectively admits to depriving J.B. of due process. ..................... 14
C. Baker v. Nelson does not control this case. ................................... 17
D. The State misunderstands the right to travel, which the
State effectively admits to violating. ............................................. 19
E. According to original intent, the Full Faith and Credit
Clause requires the State of Texas to allow J.B. to get a
divorce. ............................................................................................. 21
Prayer..................................................................................................................... 24
Certificate of Service ............................................................................................ 26
Appendix ............................................................................................................... 27



iii
I n d ex o f Au th o ritie s

Page(s)
TEXAS CASES
Aucutt v. Aucutt,
62 S.W.2d 77 (Tex. 1933) ................................................................. 2, 3
Austin Nursing Ctr., Inc. v. Lovato,
171 S.W.3d 845 (Tex. 2005) ................................................................. 4
Brown v. Todd,
53 S.W.3d 297 (Tex. 2001)................................................................... 5
City of DeSoto v. White
288 S.W.3d 389 (Tex. 2009) ................................................................ 1
City of Houston v. Clark,
197 S.W.3d 314 (Tex. 2006) ............................................................... 10
City of Rockwall v. Hughes,
246 S.W.3d 621 (Tex. 2008) ................................................................ 2
Cramer v. Sheppard,
167 S.W.2d 147 (Tex. 1943) .................................................................. 3
Cuneo v. De Cuneo,
24 Tex. Civ. App. 436, 59 S.W. 284 (1900) ........................................ 4
DaimlerChrysler Corp. v. Inman,
252 S.W.3d 299 (Tex. 2008) ........................................................... 4, 9
Dubai Petroleum Co. v. Kazi,
12 S.W.3d 71 (Tex. 2000) ..................................................................... 3
Entergy Gulf States, Inc. v. Summers,
282 S.W.3d 433 (Tex. 2009) ............................................................ 1, 2
Kappus v. Kappus,
284 S.W.3d 831 (Tex. 2009) ................................................................ 2
Mireles v. Mireles,
No. 01-08-00499-CV, 2009 WL 884815 (Tex. App.Houston [1st
Dist.] Apr. 2, 2009, pet. denied) .......................................................... 4
iv
Sullivan v. University Interscholastic League,
616 S.W.2d 170 (Tex. 1981) ........................................................... 11, 13
VanDevender v. Woods,
222 S.W.3d 430 (Tex. 2007) ............................................................. 10
Vinson v. Burgess,
773 S.W.2d 263 (Tex. 1989) ................................................................. 3
Williams v. Texas State Board of Orthotics & Prosthetics,
150 S.W.3d 563 (Tex. 2004) ...................................................... passim
Whitworth v. Bynum,
699 S.W.2d at 197 ................................................................................ 13
FEDERAL CASES
Baker by Thomas v. General Motors Corp.,
522 U.S. 222 (1998) ............................................................................ 23
Baker v. Nelson,
409 U.S. 810 (1972) .................................................................... passim
Boddie v. Connecticut,
401 U.S. 371 (1971) ................................................................... 14, 16, 17
Broderick v. Rosner,
294 U.S. 629 (1935) ............................................................................ 23
Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8th Cir. 2006) .............................................................. 13
Frontiero v. Richardson,
411 U.S. 677 (1973) ...............................................................................14
Gill v. Office of Personnel Management,
699 F. Supp. 2d 374 (D. Mass. 2010) ................................................. 7
Hicks v. Miranda,
422 U.S. 332 (1975) ............................................................................. 19
In re Balas,
449 B.R. 567 (C.D. Cal. 2011) .............................................................. 7
v
J ohnson v. J ohnson,
385 F.3d 503 (5th Cir. 2004) ............................................................. 19
J ohnson v. Robinson,
415 U.S. 361 (1974) .............................................................................. 13
Lawrence,
539 U.S. at 56667 ................................................................... 15, 16, 19
Loving v. Virginia,
388 U.S. 1 (1967) ............................................................................ 14, 16
Mandel v. Bradley,
432 U.S. 173 (1977) (per curiam) ................................................. 15, 18
Mass. Bd. of Ret. v. Murgia,
427 U.S. 307 (1976) (per curiam) .......................................................14
Memorial Hospital v. Maricopa County,
415 U.S. 250 (1974) ............................................................................. 20
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) ................................................ 11
Reno v. Florez,
507 U.S. 292 (1993) ....................................................................... 14, 16
Romer v. Evans,
517 U.S. 620 (1996) ..................................................................... passim
United States Dept. of Agriculture v. Moreno,
413 U.S. 528 (1973) ........................................................................ 11, 13
Warth v. Seldin,
422 U.S. 490 (1975) .............................................................................. 5
Washington v. Glucksberg,
521 U.S. 702 (1997) .............................................................................. 15
Williams v. North Carolina,
325 U.S. 226 (1945) .............................................................................14
TEXAS STATUTES
Tex. Fam. Code Chapter 6 .......................................................................14
vi
Tex. Fam. Code 6.001 ........................................................................ 6, 7
Tex. Fam. Code 6.002 ............................................................................ 6
Tex. Fam. Code 6.204 .................................................................. passim
Tex. Fam. Code 6.707 ............................................................................ 9
Tex. Govt Code 311.021 ..................................................................... 10
FEDERAL STATUTES
28 U.S.C. 1738C ..................................................................................... 23
TEXAS CONSTITUTI ONAL PROVI SI ONS
Tex. Const . art. I, 32 .......................................................................... 3, 4
Tex. Const . art V, 8 ............................................................................ 2, 3
U.S. CONSTITUTI ONAL PROVI SI ONS
U.S. Const . Amendment XIV, 1 ...........................................................14
U.S. Const . art. IV, 1 ............................................................................. 22
OTHER AUTHORI TIES
James Madison, Debat es on t h e Adopt ion of t h e Feder al
Const it ut ion
503504 (J.B. Lippincott & Co. 1861) (1787) .................................. 22
Let t er of At t or ney Gener al Hol der (Feb. 2011)
http:/ / scr.bi/ gSzr4J ............................................................................. 16
Recor ds of t h e Feder al Convent ion of 1787 Vol.4 Art.4 Sec.1
Doc.4 (Max Farrand ed., Yale University Press 1937), available at
http:/ / bit.ly/ pUdiI2 ............................................................................ 21


No. 11-0024



I n The S upreme 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




P E TI TI O N E R S R E P LY TO
S TATE S B R I E F O N TH E M E R I TS



To Th e Honor abl e Supr eme Cour t of Texas:
Petitioner J.B. submits this reply to States brief on the merits, and
respectfully shows this Court as follows:

1
Arg u m e n t
I . S e ctio n 6 .2 0 4 d o e s n o t d e p rive th e tria l co u rt o f ju risd ictio n o ve r J.B .s
p e titio n fo r d ivo rce .
A. Th e S ta te m isco n stru e s o r ig n o re s th is C o u rts ru le s o f sta tu to ry
co n stru ctio n .
In City of DeSoto v. White, this Court noted its reluctance to conclude
that a provision is jurisdictional, absent clear legislative intent to that effect.
288 S.W.3d 389, 393 (Tex. 2009). The Court began with the presumption
that the Legislature did not intend to make [a statute] jurisdictional; a
presumption overcome only by clear legislative intent to the contrary. Id.
at 394. The Court held the statute at issue was not jurisdictional because,
among other things, it lacked explicit language indicating the statute was
jurisdictional. Id. at 395396.
Despite this, the State cites City of DeSoto to claim statutory
requirements are jurisdictional when the application of statutory-
interpretation principles reveals a clear legislative intent that they be so.
Brief on the Merits of Respondent the State of Texas (States br.) at 11. The
State ignores that City of DeSoto held the statute was not jurisdictionaland
the State points to no case in which this Court has held a statute was
jurisdictional where the statute did not explicitly declare itself to be so.
Moreover, the State ignores the many other statutory-construction cases
cited in J.B.s opening brief, see Petitioners Brief on the Merits (Pet. br.) at
810, that counsel against the States attempt to read a jurisdictional
provision into section 6.204. See, e.g., Entergy Gulf States, Inc. v. Summers,
282 S.W.3d 433, 465 (Tex. 2009) (we should always refrain from rewriting
2
text that lawmakers chose); City of Rockwall v. Hughes, 246 S.W.3d 621,
62526, 632 (Tex. 2008) (a court risks crossing the line between judicial and
legislative powers when it reads language into a statute that the Legislature
did not put there); Williams v. Texas State Board of Orthotics & Prosthetics,
150 S.W.3d 563, 573 (Tex. 2004) (we will not read into an act a provision
that is not there).
The Court presumes the Legislature chose its words carefully. Kappus v.
Kappus, 284 S.W.3d 831, 836 (Tex. 2009). Thus, the Court should focus on
what a statute says and, just as attentively, on what it does not say. Summers,
282 S.W.3d at 465 (Willett, J., concurring). Section 6.204 of the Family
Code does not say trial courts lack jurisdiction to consider a petition for
divorce. The word jurisdiction never appears. Neither does divorce.
Moreover, as previously noted, see Pet. br. at 6, this Court has declared
that, because district courts are clothed by the [Texas] Constitution with
divorce jurisdiction it does not lie within the power of the Legislature to take
such jurisdiction away from them. Aucutt v. Aucutt, 62 S.W.2d 77, 79 (Tex.
1933). The State argues that Aucutts declaration is no longer the case
because the Texas Constitution has been amended; therefore district courts
no longer have express jurisdiction over all cases of divorce. States br. at 16
n.10. The State is wrong.
Article V, section 8 of the Texas Constitution previously consisted of
three paragraphs detailing district court jurisdiction; it was amended in 1985
to state simply: District Court jurisdiction consists of exclusive, appellate,
and original jurisdiction of all actions, proceedings, and remedies, except in
3
cases where exclusive, appellate, or original jurisdiction may be conferred by
this Constitution or other law on some other court, tribunal, or
administrative body. Texas Const . art. V, 8 (emphasis added).
Jurisdiction over all actions obviously includes divorce. Thus, district
courts remain clothed by the Constitution with divorce jurisdiction, and
Aucuttwhich has never been overruled or even questionedremains
operative. See also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000)
(all claims are presumed to fall within the jurisdiction of the district court
unless the Legislature has provided that they must be heard elsewhere).
Pushing harder, the State claims article V, section 8 of the Constitution,
granting district courts jurisdiction over all actions, would have to yield to
article I, section 32, prohibiting same-sex marriages. States br. at 16 n.10.
Again, the State is wrong. As in statutory construction, the Court presumes
the language in constitutional provisions was carefully selected, and the
words are interpreted as the people generally underst[an]d them. Cramer v.
Sheppard, 167 S.W.2d 147, 153 (Tex. 1943). Moreover, the Constitution must
be read as a whole and effect must be given to each part of each clause.
Vinson v. Burgess, 773 S.W.2d 263, 265 (Tex. 1989) (internal quotations
omitted). Article V, section 8 gives district courts jurisdiction over all divorce
actions, and article I, section 32 says nothing about jurisdiction or divorce.
The State ignores the plain language, suggests these provisions are in conflict,
then insists section 8 should yield. But this would fail to give full effect to
section 8s provision of jurisdiction over all actions. The better readingthat
follows the text and adheres to this Courts precedent regarding
4
constitutional interpretationis that these two sections are not in conflict
because section 32 says nothing about divorce or jurisdiction.
1
B . Th e S ta te m isco n stru e s th e la w o f sta n d in g .

Standing exists where a party has a justiciable interest in the outcome
of the lawsuit. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.
2005). Standing focuses on the party seeking to get his complaint before the
courtnot on the issues he wishes to have adjudicated. DaimlerChrysler
Corp. v. Inman, 252 S.W.3d 299, 308 (Tex. 2008) (Jefferson, C.J.,
dissenting) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38
(1976)). And a petitioner does not lack standing simply because he cannot
prevail on the merits of his claim. Id. at 305. For over a century, to
successfully plead an action for divorce and thereby invoke the trial courts
jurisdiction, a petitioner has needed only to allege the existence of a valid
marriageand the allegation alone has been sufficient. Cuneo v. De Cuneo,
24 Tex. Civ. App. 436, 59 S.W. 284 (1900). The petitioners allegations are

1
The State has also relied repeatedly on Mireles v. Mireles, No. 01-08-00499-CV, 2009
WL 884815 (Tex. App.Houston [1st Dist.] Apr. 2, 2009, pet. denied), for the
proposition that district courts lack jurisdiction over a divorce involving a same-sex
couple. See, e.g., States br. at 4. But Mireles involved a Texas marriage, where both
parties agreed the marriage was void. 2009 WL 884815, at *2. Here, the issue is
whether a same-sex couple legally married in another state can obtain a divorce in
Texas; therefore, Mireles is inapposite. The place of celebration for the Mireles marriage
is a matter of public recordyet both the State and the court of appeals have ignored
this distinguishing fact. See Op. at 666. A copy of the Mireles marriage certificate is
available at Archives.com: http:/ / bit.ly/ oEB6OC (subscription required). And a
printout from that website, showing the marriage occurred in Brazos County, Texas, is
attached at Tab 1.
5
taken as true and construed in favor of the petitioner. Brown v. Todd, 53
S.W.3d 297, 305 n.3 (Tex. 2001); Warth v. Seldin, 422 U.S. 490, 501 (1975).
Here, J.B. sought a divorce. 1 CR 56. He indisputably has a justiciable
interest in the outcome of his action. He alleged a valid marriage, that
allegation is taken as true and construed in his favor, and nothing more is
needed. The State cannot point to any caseeven one involving a void
marriagewherein a party to the alleged marriage was held to lack standing
to bring the action to dissolve that marriage.
The State admits that a dispute over the validity of the marriage goes to
the merits of a divorce claim, not to the courts jurisdiction. States br. at 16
17. The State further admits the allegation of a valid marriage is sufficient to
establish standing and jurisdiction. Id. at 17. And further still, the State
admits J.B. alleged he was legally married. Id.
Yet, against its own admissions, the State goes on to argue J.B. lacks
standing because his marriage was not actually valid. In the same paragraph,
the State first admits the validity of the marriage is a question on the merits
and not a matter of standing or jurisdictionthen claims the court should
determine the marriages validity from the face of the petition as a matter of
standing and jurisdiction.
2

2
As previously explained, see Pet. br. at 1415, the States and the court of appeals
construction of section 6.204 will place great strain on the already overburdened trial
courts by requiring them to determine the validity of the alleged marriage in
uncontested divorce actions. Conceding this, the State argues that its position is simply
that where the petition itself demonstrates a lack of standing, the case should be
dismissed for lack of jurisdiction. State br. at 18 (emphasis in original). But the
pleading requirements are minimal, and do not require the identification of the gender
of the parties. See Tex. Fam. Code 6.402. Unless the State proposes that trial courts
Id. Instead of taking J.B.s allegation of a valid
6
Massachusetts marriage as truewhich it isand construing it in J.B.s favor
as required, the State equates it to an allegation that no valid marriage
exists. Id. According to the State, the presentation of a Massachusetts
marriage licensewhich again should be taken as true and construed in J .B.s
favorinstead, makes it clear J.B. is not a party to a marriage.
3
These somersaults of illogic are spawned by the States contention that
only a party to a marriage may sue for divorce, which the State derives from
section 6.001 of the Family Code. See id. But this is a gross misconstrual of
the law. Section 6.001 is titled Insupportability, and is just one of several
sections laying out the grounds for a divorce. (Section 6.002 is for Cruelty,
section 6.003 is for Adultery, etc.) The actual text states: On the petition
of either party to a marriage, the court may grant a divorce without regard to
fault if the marriage has become insupportable because of discord or conflict
Id. at 18.

dismiss only the petitions they catch, inquiry beyond the face of the petition will be the
norm, not the exception.
The State says this is not a problem because no lawyer with any ethical standards
would hide the identity of their clients gender. States br. at 19. But this ignores the fact
that many of the thousands of uncontested divorces filed yearly in Texas do not involve
lawyers, and often one of the parties does not even get involved (as in this case). Thus,
the States and the court of appeals construction of section 6.204 will place a burden on
the courts to police their uncontested divorce dockets.
3
These contortions might have had some merit if J.B. was alleging a valid same-sex
marriage that was entered into in Texas. In that case, it might be possible to say the
allegation of a valid marriage was, on its face, actually the admission of an invalid
marriage. The State has admitted that J.B.s marriage was legally valid under
Massachusetts law. This makes it ridiculous for the State to contend the allegation of
validity was actually an allegation of invalidityparticularly when the allegation must
be construed in J.B.s favor.
7
of personalities . Tex. Fam. Code 6.001. In short, section 6.001 has
nothing to do with requirements for standing.
C . Th e p la in te xt o f se ctio n 6 .2 0 4 d o e s n o t p re ve n t th e tria l co u rt fro m
gra n tin g J.B .s u n co n te ste d d ivo rce .
The State and the court of appeals say the trial court cannot entertain a
petition for divorce without violating section 6.204but in doing so they
fudge the statutes language, reading it as precluding the court from giving
any effect whatsoever to a same-sex marriage. Op. at 666 (emphasis in
original); States br. at 14. This very carefully worded statute, see States br.
at 9 n.5, says no such thing.
4
Section 6.204(c)(1) says the court cannot give effect to a public act,
record, or judicial proceeding that creates, recognizes, or validates a same-
sex marriage. Tex. Fam. Code 6.204(c)(1). A petition for divorce is not a
public act, record, or judicial proceeding and it does not create, recognize,
or validate a same-sex marriageit merely alleges a valid marriage. Thus,
the court does not violate section 6.204 by hearing a petition for divorce.

Section 6.204(c)(2) says the court cannot give effect to a right or
claim to any legal protection, benefit, or responsibility asserted as a result of a
[same-sex] marriage. Tex. Fam. Code 6.204(c)(2) (emphasis added).

4
The State also declares same-sex marriages are legal nullities in this state. States br.
at 8. This exaggerates the scope and reach of section 6.204. A same-sex marriage legally
entered into in another state is still recognized as valid by those states that recognize
same-sex marriageand also by federal law, for some purposes. See In re Balas, 449
B.R. 567 (C.D. Cal. 2011) (DOMA cannot prevent legally-married same-sex couple from
filing joint Chapter 13 petition in bankruptcy); Gill v. Office of Personnel Management,
699 F. Supp. 2d 374 (D. Mass. 2010) (DOMA cannot prevent legally-married same-sex
couple from equal access to federal marriage-based benefits).
8
This provision does not preclude the court from giving effect to any or every
right that might possibly be asserted; rather, it precludes the court only from
giving effect to a right or claim to somethingspecifically, to any legal
protection, benefit, or responsibility. Thus, if the thing to which J.B. is
laying claim is not a legal protection, benefit, or responsibility, then the
plain text of section 6.204(c)(2) is silent about the courts ability to give
effect to that claim. The mere declaration of a divorcethe simple decree,
Divorce granteddoes not constitute a protection or a benefit or a
responsibility. Thus, section 6.204 is silent regarding J.B.s right to a simple
divorce decree.
Finally, the court does not validate an alleged marriage by granting an
uncontested divorce. The State admits the validity of the marriage is a
question on the merits. States br. at 1617. In this uncontested divorce there
is no dispute on the merits and thus no question to be decided by the court.
Like any other undisputed allegation, in any other action, the alleged validity
of the marriage is merely taken as true for the sole purpose of signing the
agreed judgment. The court simply allows two parties the autonomy to settle
their disputes and agree to a judgment. This harms no oneand affects no
one but the parties bound by the judgment.
For the above reasons, the States contention that Texas law prevents the
trial court from hearing and granting J.B.s uncontested petition for divorce is
without merit.
9
D . N o n e o f th e p ro te ctio n s th e S ta te d e scrib e d a re a t issu e in th is
ca se , a n d th is C o u rt d o e s n o t d e cid e h yp o th e tica ls.
The State argues that the only way to adhere to section 6.204s
prohibition against giving effect to a same-sex marriage is to read the
statute as depriving the trial court of jurisdiction over the divorce petition,
because just by filing a divorce petition the petitioner triggers procedural
and substantive protections that, if provided, would be in violation of
section 6.204(c)(2). States br. at 1113. These protections include, for
example, the protection against being subjected to a debt incurred by ones
spouse and the limitation on ones spouses ability to transfer property, during
the pendency of the divorce. Tex. Fam. Code 6.707.
These miscellaneous protections are red herrings. This is an
uncontested divorcemeaning there are no disputes. The protections the
State mentions arise only where there is a dispute between the partiesover,
for example, the incurrence of a debt or the transfer of property. Neither J.B.
nor H.B. is claiming (or challenging the claim to) any protection listed by
the State. Thus, the question whether the trial court could give effect to
that claim is not before this Courtand this Court does not decide
hypotheticals. Inman, 252 S.W.3d at 304. The only question is whether
section 6.204 prevents the trial court from hearing and granting J.B. and
H.B.s uncontested petition for divorce.
For the above reasons, and for the reasons provided in J.B.s initial brief,
the Court should reject the States construction of section 6.204 as
jurisdictional, should reverse the court of appeals decision, and should
remand to the trial court for the determination of J.B.s petition for divorce.
10
I I . Th e S ta te s co n stru ctio n o f se ctio n 6 .2 0 4 is u n co n stitu tio n a l.
In addition to ignoring the rules of statutory construction noted above,
the State also ignores the rule that says this Court, [w]hen faced with
multiple constructions of a statute, must interpret the statutory language
in a manner that renders it constitutional if it is possible to do so, and should
avoid a construction that renders the statute constitutionally suspect. City
of Houston v. Clark, 197 S.W.3d 314, 320 (Tex. 2006); Williams, 150 S.W.3d
at 571 (We must, if possible, construe statutes to avoid constitutional
infirmities.); see also VanDevender v. Woods, 222 S.W.3d 430, 432433
(Tex. 2007) ([j]udicial restraint cautions that when a case may be decided on
a non-constitutional ground, [the Court] should rest [its] decision on that
ground and not wade into ancillary constitutional questions.); Tex. Govt
Code 311.021 (Court presumes a statute is intended to comply with the
U.S. Constitution).
A. Th e S ta te fa ils to p ro vid e a ra tio n a l b a sis fo r d e n yin g J.B . e q u a l
a cce ss to d ivo rce .
Under federal Equal Protection jurisprudence, a law is constitutionally
suspect if it singles out gays and lesbians for disfavored treatment. Romer v.
Evans, 517 U.S. 620, 631 (1996). The State claims it does not single out gays
and lesbians for disfavored treatment, but instead singles out validly
married unions of one man and one woman for favored treatment. States
br. at 31. This sort of chicanery merely reframes the disparate treatment
like the segregationist who claims Jim Crow does not disfavor blacks, it
merely favors whites. The State candidly concedes that disparate treatment
exists. States br. at 24, 31. The question is not whether the disparate
11
treatment can be framed as favorable to one group rather than disfavorable
to another; the question is whether the State can provide a rational basis to
justify the disparate treatment.
Even under the most deferential standard of review, the court must
insist on knowing the relation between the classification adopted and the
object to be obtained. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 995
(N.D. Cal. 2010) (citing Romer, 517 U.S. at 631) (internal quotations
omitted). To survive rational basis review, a law must do more than
disadvantage or otherwise harm a particular groupit must rationally
further some legitimate government interest. United States Dept. of
Agriculture v. Moreno, 413 U.S. 528, 534 (1973). This demand for a rational
basis, while deferential, is meant to ensure that classifications are not drawn
for the purpose of disadvantaging the group burdened by the law. Romer,
517 U.S. at 633.
Here, section 6.204 of the Family Code enacts a classification scheme
based on sexual orientation; the group burdened by the law is gays and
lesbians. Cf. Romer, 517 U.S. at 633. And the burden, under the States
construction of the statute, is that same-sex couples legally married in
another state are denied the right to divorce that is provided to opposite-sex
couples similarly situated. The State fails to provide a rational basis for this
unequal treatment. In other words, the State fails to explain how denying
J.B. access to divorce rationally further[s] some legitimate government
interest. Cf. Moreno, 413 U.S. at 534; see also Sullivan v. University
Interscholastic League, 616 S.W.2d 170, 172173 (Tex. 1981) (holding statute
12
treating two classes of students unequally was unconstitutional because
disfavorable treatment of one class did not operate rationally to further the
states interest; the states legitimate goal did not justify the harsh means of
accomplishing this goal utilized by the [statute]).
The importance of the distinction between the right to marry and the
right to divorce cannot be overstated. The State insists it has a legitimate
interest in promoting the procreative relationship, which justifies
restricting marriage to opposite-sex couplesand that this is the purpose of
section 6.204. States br. at 30. But no matter how vociferously Texas
opposes same-sex marriage, it cannot prevent J.B. and H.B. from getting
marriedbecause they already did. Even if the State can show that
classifying persons based on sexual orientation and denying same-sex couples
the right to marry furthers the States interest in promoting the procreative
relationship, this rationale is unavailing here because J.B. is not seeking to
get married. If the State wants to construe section 6.204 as also denying J.B.
the right to divorce, it must show how this additional, distinguishable
operation of the law rationally furthers the States interest.
Both the court of appeals and the State have failed to do this.
5

5
The court of appeals only discussed a rational basis for disallowing same-sex marriage
and did not distinguish between marriage and divorce. See Op. at 677678.
The State
defines its interest as the promotion of stable family environments for
procreation and the rearing of children by a mother and a father. States br.
at 29, 31. But the State fails to show how treating J.B. unequally, by denying
him the right to divorce, operates rationally to further this interest.
13
Cf. Sullivan, 616 S.W.2d at 172173. In other words, the State fails to show
its construction of section 6.204 does more than disadvantage legally-
married same-sex couples. Cf. Romer, 517 U.S. at 633.
Instead of attempting to satisfy this standard, the State relies primarily
on a court of appeals decision from Indiana to turn the standard inside-out
arguing that, because providing divorce to J.B. does not further the States
interest, the State does not have to provide that divorce. States br. at 31
(citing Morrison v. Sadler, 821 N.E. 2d 15, 35 (Ind. Ct. App. 2005)). This is
wrong. Under rational-basis review, Equal Protection still requires equal
treatment as a baselinebut unequal treatment can be justifiable if it
reasonably furthers the States legitimate interests. See Whitworth v. Bynum,
699 S.W.2d 194, 197 (Tex. 1985) (citing Sullivan, 616 S.W.2d at 172); Romer,
517 U.S. at 633; Moreno, 413 U.S. at 534. The States contention that it does
not have to provide equal treatment unless that equal treatment furthers its
interests should be rejected out of hand.
6
Because the State cannot provide a rational basis for denying same-sex
couples legally married in another state equal access to divorce, its
construction of section 6.204 is unconstitutional.

7

6
Morrison involved an Indiana statutes constitutionality under the Indiana Constitution.
821 N.E. 2d at 35. Indiana constitutional law is irrelevant here. The State also cites
Citizens for Equal Protection v. Bruning, 455 F.3d 859, 868 (8th Cir. 2006), and
J ohnson v. Robinson, 415 U.S. 361, 383 (1974)but those cases both held the unequal
treatment at issue rationally furthered the governments interest. Neither case supports
the States inverted proposition that it does not have to provide equal treatment unless it
furthers the States interest.

7
The State fails to survive rational-basis scrutiny, but strict scrutiny should apply. See
Pet. br. at 2933. The States only argument against strict scrutiny is that gays and
lesbians are not a suspect class because they are not politically powerless. States br.
14
B . Th e S ta te m isch a ra cte rize s th e righ t a t issu e a n d e ffe ctive ly a d m its
to d e p rivin g J.B . o f d u e p ro ce ss.
The Due Process Clause says: No State shall deprive any person of
life, liberty, or property, without due process of law. U.S. Const . Amend.
XIV, 1. The U.S. Supreme Court has recognized both a substantive right
under Due Process, e.g., Reno v. Florez, 507 U.S. 292, 301302 (1993) (state
law cannot interfere with fundamental liberty interests unless it survives
strict scrutiny), and a procedural right under Due Process. E.g., Boddie,
401 U.S. at 379380 (state must provide a meaningful opportunity to be
heard before depriving individual of life, liberty, or property). The States
construction of section 6.204 violates both.
The Supreme Court has recognized the right to divorce as distinct from
the right to marry. See Boddie v. Connecticut, 401 U.S. 371, 383 (1971)
(divorce is an adjustment of a fundamental human relationship); Loving v.
Virginia, 388 U.S. 1, 12 (1967) (infringements on the freedom to marry or
not to marry are subject to strict controls (emphasis added)); Williams v.
North Carolina, 325 U.S. 226, 230 (1945) (divorce affects personal rights of
the deepest significance).
8

at 28. But a class is also suspect if it includes individuals who possess an immutable
characteristic determined solely by the accident of birth, Frontiero v. Richardson, 411
U.S. 677, 688 (1973), or persons who have been subjected to a history of purposeful
unequal treatment. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curiam).
The State offers no response to the fact that gays and lesbians fit both of these
descriptions. Moreover, the State never addresses the fact that its construction of
section 6.204 treats same-sex marriages disfavorably even compared to marriages made
void under Chapter 6 of the Family Code. See Pet. br. at 2223.

8
The State claims Baker v. Nelson limits the effect of Boddie, Loving, and Williams.
States br. at 32 n.23. But this is wrong. An unexplicated summary affirmance like
Baker is not to be read as a renunciation of doctrines previously announced in
15
The State correctly insists that marriage is a fundamental right, and
repeatedly insists that divorce is part of marriagebut then contends there is
no fundamental right to divorce. See States br. at 3234. Presumably the
State would agree that a legally-married opposite-sex couple has a
fundamental right to divorceso the obvious question is why a legally-
married same-sex couple would not have that same right. To reconcile these
inconsistencies, the State re-characterizes the issue as the right to dissolve a
same-sex marriage by divorce in a state that does not recognize the marriage.
Id. at 34.
The State justifies this myopic characterization by pointing to
Washington v. Glucksberg, 521 U.S. 702, 720721 (1997). See id. But
Glucksberg merely requires a careful description of the right at issue, and
was concerned with the subtle distinctions between the right to choose a
humane, dignified death, the right to die, and the right to commit suicide.
521 U.S. at 722723. Glucksberg does not support the States approach. To
the contrary, as the Supreme Court made clear in Lawrence, the right at issue
must not be construed too narrowly. Lawrence, 539 U.S. at 56667, 578
(rejecting Bowers characterization of the right at issue as the right of
homosexuals to engage in sodomy, and instead characterizing it as an
individuals right to privacy in sexual conduct).
Here, the Court should reject the States narrow, Bowers-like description
of the right at issue and instead define it as the right of legally married

[Supreme Court] opinions after full argument. Mandel v. Bradley, 432 U.S. 173, 176
(1977) (per curiam) (internal quotations omitted).
16
individuals to divorce. And under Loving, Boddie, and Williams, this right
to divorce should be recognized as fundamental.
9
But even if the right to divorce is not fundamental, the States
construction of section 6.204 still violates J.B.s procedural rights under Due
Process. The State cites DOMA to argue it does not have to recognize J.B.s
marriage and therefore does not have to give J.B. access to divorce. States br.
at 33. But as noted previously, see Pet. br. at 21, DOMA has become
constitutionally suspect.
The Court therefore
should hold that the States construction of section 6.204 violates J.B.s
substantive rights under Due Process, for depriving him of his right to
divorce. See Reno, 507 U.S. at 301302; Boddie, 401 U.S. at 382383.
10
Nevertheless, relying on DOMA and on its construction of section
6.204, the State claims it does not owe J.B. any process respecting [his] out-
of-state marriage. States br. at 35 (emphasis added). This proclamation is
an audacious display of the States disregard for J.B.s rights, and is precisely
the sort of State deprivation of individual rights and liberties that the
Fourteenth Amendment was designed to prohibit.
Moreover, the wording of DOMA is almost
identical to the wording of section 6.204meaning like section 6.204 it can,
and therefore should (to avoid constitutional infirmity), be construed as
speaking only to marriage and not to divorce.

9
Alternatively, the Court could rely on Lawrence to recognize the fundamental, individual
right of autonomy in decisions relating to marriage. 539 U.S. at 574. In contrast, the
State can point to no authority for its characterization of the right at issue.
10
See also Letter of Attorney General Holder (Feb. 2011), http:/ / scr.bi/ gSzr4J.
17
The State does not dispute J.B. was legally married in Massachusetts.
And the State cannot dispute that J.B. is asserting a right to divorce based on
that marriage. Due Process requires the State, at minimum, to provide J.B.
with a meaningful opportunity to be heard, before the State deprives him of
his right to divorce. See Boddie, 401 U.S. at 379380.
The State says it provides for voidance proceduresas though this
satisfies its Due Process obligations. See States br. at 35. But the State
misses the point. J.B. is asserting a right to divorce. Denying J.B. access to
the court on his petition for divorce, and forcing him into a voidance
procedure, constitutes the deprivation of J.B.s right to a divorceand this
violates J.B.s procedural rights under Due Process because, according to the
States own admission, it occurs without a hearing (i.e., without a trial on the
merits of J.B.s petition for divorce).
C . Baker v. Nelson d o e s n o t co n tro l th is ca se .
The State argues Baker v. Nelson, 409 U.S. 810 (1972), forecloses any
claim of constitutional entitlement to same-sex divorce. States br. at 2526.
This misconstrues and exaggerates the precedential effect of Baker. Even the
Fifth Court of Appealswhich embraced most of the States arguments
concluded Baker is not controlling because it concerns the recognition of a
same-sex marriage on a going-forward basissomething distinguishable
from the mere granting of a divorce. Op. at 2223.
Baker concerned a petition for certiorari challenging Minnesotas
refusal to issue a marriage license to a same-sex couple. The U.S. Supreme
Court dismissed the petition for lack of a substantial federal question without
18
an opinion. From this cursory dismissal, and without any support in either
the lower court holding or the Supreme Courts summary order, the State
concocts a broad holding that purportedly prevents anyone from challenging
the traditional definition of marriage, including claims for various legal
rights associated with marriage. States br. at 26. Baker cannot bear this
load.
A summary dismissal like Baker has an extremely narrow precedential
effect. It is binding only on the precise issues presented and necessarily
decided by the Court. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per
curiam) (emphasis added). A summary disposition like Baker does not
necessarily affirm a lower courts reasoning. Id. at 175. And it controls only
to the extent that the issues in a future case are the same as those raised
previously. Id. at 174-77. This standard is exacting, and prevents a case like
Baker from having preclusive effect when even extremely minor differences
in the facts are present. See id. at 176 (issues presented were not the same
between an elected officials challenge to an election statute and a previous
election challenge that had been summarily dismissed).
Here, as the court of appeals correctly concluded, Baker has no
precedential effect because the issues resolved in Baker are not the same as
those before this Court. Op. at 671672. J.B. does not seek to be married
he seeks a divorce. And his demand for equality in divorce raises different
constitutional issues, interests, and arguments from those raised in Baker.
Further still, Bakers precedential effect is undermined by the principle
that summary dismissals are binding only to the extent they have not been
19
abrogated by subsequent doctrinal developments in the Supreme Courts
case law. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Baker came well
before the line of casesexemplified by Romer and Lawrencethat
recognizes an individuals right to be free from unwarranted governmental
intrusion and from disfavorable treatment based on sexual orientation. See
Romer, 517 U.S. at 631; Lawrence, 539 U.S. at 574. After Romer, all laws that
disadvantage gays and lesbians, and single them out for disfavored
treatment, are constitutionally suspect. See J ohnson v. J ohnson, 385 F.3d
503, 532 (5th Cir. 2004). And after Lawrence, personal decisions relating to
marriage, procreation, contraception, family relationships, [and] child
rearing are protected from unwarranted intrusion by the stateand
[p]ersons in a homosexual relationship may seek autonomy for these
purposes, just as heterosexual persons do. 539 U.S. at 574. In short, Romer
and Lawrence have modified the law from what it was at the time of Baker,
thereby undermining Bakers precedential authority.
Given the above, the court of appeals was correct in concluding Baker
does not control this case.
D . Th e S ta te m isu n d e rsta n d s th e righ t to tra ve l, wh ich th e S ta te
e ffe ctive ly a d m its to vio la tin g.
The State says there is no evidence that Texas laws were enacted with
the goal of discouraging anyone from moving to Texastherefore they do
not violate the right to travel. States br. at 3637. But this is neither the
argument being made nor the standard to be applied. The proper question
is: Does the States construction of section 6.204 operate[] to penalize those
persons who have exercised their constitutional right of interstate
20
migration? Memorial Hospital v. Maricopa County, 415 U.S. 250, 258
(1974). It does, because a same-sex couple legally married in another state
loses their right to divorce if they move to Texas.
The State says treating J.B. and H.B. like other legally married couples
in Texas is just a repackag[ing] of J.B.s Equal Protection claim. States br. at
36. The right to travel indeed overlaps with the right of equal protection
but the State misunderstands the relevant comparisons. The States
construction of section 6.204 violates Equal Protection because it creates a
classification based on sexual orientation to treat similarly situated couples
same-sex couples legally married in another state and opposite-sex couples
legally married in another stateunequally. And the States construction of
section 6.204 violates the right to travel because it treats migrants to Texas
who have a right to a divorce differently from residents of Texas who have a
right to a divorceby depriving the migrants of their right simply because
they moved here.
The State claims its construction of section 6.204 does not violate the
right to travel because it treats J.B. and H.B. just like any other same-sex
couple in Texas. States br. at 36. But this is the wrong comparisonand in
fact, in this declaration the State effectively admits to violating J.B.s right to
travel. J.B. and H.B. indisputably had a right to divorce in Massachusetts,
before moving to Texas. Treating J.B. and H.B., upon their migration to
Texas, like a same-sex couple that never had a claim to divorce, effectively
penalizes J.B. and H.B. for moving to Texaswhich constitutes a violation of
their constitutional right to travel. Cf. Maricopa County, 415 U.S. at 258.
21
Finally, the State argues there is no constitutional right to be treated by
the laws of ones new state of residence just the way one was treated by the
laws of a previous state of residence. States br. at 37. This is trueand no
claim has been made to any such right. Rather, J.B. asserts his constitutional
right not to be penalized for migrating to another state. The State fails to
show its construction of section 6.204 does not penalize J.B. for moving here.
E . Acco rd in g to o rig in a l in te n t, th e Fu ll Fa ith a n d C re d it C la u se
re q u ire s th e S ta te o f Te xa s to a llo w J.B . to ge t a d ivo rce .
There are few U.S. Supreme Court decisions addressing the Full Faith
and Credit Clause. For this reason, it is useful to reexamine the original
intent and actual text of the constitutional provision.
James Madisons early draft read: Full faith shall be given in each State
to the acts of the Legislatures, and to the records and judicial proceedings of
the Courts and Magistrates of every other State.
11
And another version was
proposed: Whensoever the act of any State, whether legislative[,]
executive[,] or judiciary[,] shall be attested and exemplified under the seal
thereof, such attestation and exemplification shall be deemed in other
State[s] as full proof of the existence of that actand its operation shall be
binding in every other State.
12

11
Th e Recor ds of t h e Feder al Convent ion of 1787 Vol.4 Art.4 Sec.1 Doc.4 (Max
Farrand ed., Yale University Press 1937), available at
From this it is clear: the Full Faith and
Credit Clause was originally quite expansive in its requirement that each
state honor the laws and actions of the other states.
http:/ / bit.ly/ pUdiI2.
12
Id.
22
At the Philadelphia Convention, a draft was submitted based on
Madisons version, which read: Full faith and credit ought to be given in
each state to the public acts, records, and judicial proceedings, of every other
state; and the legislature shall, by general laws, prescribe the manner in
which such acts, records, and proceedings, shall be proved, and the effect
which judgments, obtained in one state, shall have in another.
13
Gouverneur Morris proposed amending this draft, to replace all the
wording after effect with thereof.

14
The concern was expressed that this
might authorize Congress to modify the effect of legislative actsand
support for Morriss amendment was offered only with the understanding
that Congresss power was limited to prescribing the effect of judgments.
15
The provision was further amended to change ought to to shall, in
the first clausemaking full faith and credit mandatory; and shall was
replaced with may in the second clausemaking Congresss ability to
prescribe merely permissive.
In
other words, the Founders intent was still to require each state to give full
faith and credit to the operative effect of the lawsparticularly the
legislationof other states.
16

13
James Madison, Debat es on t h e Adopt ion of t h e Feder al Const it ut ion 503
504 (J.B. Lippincott & Co. 1861) (1787), available at
In other words, the Founders intent was to
require each state to give full faith and credit to the acts of other statesand
http:/ / bit.ly/ pH8R6J.
14
Id.
15
Id.
16
Id.; see U.S. Const . Art. IV, 1.
23
to diminish Congresss ability to alter this obligation.
17
Add to this the axiom that the Constitution cannot be amended by
legislation, and it must be concluded that, under the original intent of the
Founders, DOMAs limitation on a states obligation to give full faith and
credit to a marriage legally created in another state, see 28 U.S.C. 1738C,
should be read narrowly. And because section 6.204 depends on DOMA, it
should be read narrowly too.
This is consistent
with the U.S. Supreme Courts assessment that the animating purpose of the
full faith and credit command was to make [the several states] integral
parts of a single nation throughout which a remedy upon a just obligation
might be demanded as of right, irrespective of the state of its origin. Baker
by Thomas v. General Motors Corp., 522 U.S. 222, 232 (1998).
The State claims that even without DOMA, the judicially-created
public policy exception allows it to consider J.B.s marriage a legal nullity,
and to therefore deny him the right to divorce. States br. at 3940. But the
room left for the play of conflicting policies is a narrow one. Broderick v.
Rosner, 294 U.S. 629, 642 (1935). In particular, a state cannot escape its
constitutional obligations (under the full faith and credit clause) by the
simple device of denying jurisdiction to Courts otherwise competent. Id.
The original intent and plain text of the Full Faith and Credit Clause
suggest Texas shouldat a bare minimumcredit that J.B. and H.B. were
legally married in Massachusetts, and therefore are entitled to a divorce.

17
Specifically, it was understood by those present that Congress was being limited to an
ability to prescribe the effect of judgments. See id.
24
P ra ye r
For the above reasons, for the reasons given in J.B.s initial brief, and in
the interests of reason and justice, J.B. asks this Court to rule section 6.204
does not deprive the trial court of jurisdiction over his petition for divorce
or that Section 6.204 is unconstitutional to the extent it precludes his action
for divorceand to reverse the judgment of the court of appeals and remand
to the trial court for further proceedings. In the alternative, J.B. asks the
Court to remand to the court of appeals to address J.B.s constitutional
challenges. And J.B. respectfully requests any such other and further relief
deemed just and proper.


25
Respectfully submitted,


By: / s/ James J. Scheske
James J. Scheske
State Bar No. 17745443
Jason P. Steed
State Bar No. 24070671
Akin Gump St r auss
Hauer &Fel d LLP
300 W. 6th St., Suite 1900
Austin, Texas 78701
Telephone: 512.499.6200
Facsimile: 512.499.6290
jscheske@akingump.com
jsteed@akingump.com

Attorneys for Petitioner J .B.


26
C e rtifica te o f S ervice
I hereby certify that a true and correct copy of the foregoing Pet it ioners
Reply Brief t o t he St at es Brief on t he Merit s was forwarded to counsel of
record by email and certified mail, return receipt requested, on this 10th day
of October 2011.

James D. Blacklock
Office of the Attorney General
P. O. Box 12548
Austin, Texas 787112548
(512) 9362872 (telephone)
(512) 4742697 (facsimile)
Email: jimmy.blacklock@oag.state.tx.us

H.B.
[ address on file]


/ s/ James J. Scheske
James J. Scheske
27
No. 11-0024



I n The S upreme 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




Ap p e n d ix To P etitio n e rs R e p ly
To S ta te s B rie f O n Th e M e rits



Tab 1 Texas Mar r iage Recor d f or Andr ew R. Mir el es and
Jennif er S. Al l en

TAB 1
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Andrew R Mireles and Jennifer S Allen
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1974
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