Lead Opinion
delivered the opinion of the Court,
This case arises from the State’s attempt to intervene in a civil action after the trial court had already rendered final judgment. We must determine whether the court of appeals erred in holding the State lacks standing to appeal the judgment and, if not, whether the State is entitled to mandamus relief. We answer both questions in the negative, affirming the decision of the court of appeals and denying the State’s petition for writ of mandamus.
I
Texas residents Angelique Naylor and Sabina Daly were married in Massachusetts in 2004. A few years later, Naylor filed for divorce in Travis County. Because the two women were raising a child and operating a business together, Naylor hoped to obtain a judgment addressing their respective rights, some of which they had already settled in a suit affecting the parent-child relationship (“SAPCR”).
The State of Massachusetts indisputably recognizes this same-sex marriage. Texas, however, adheres to the traditional definition of marriage and does not recognize same-sex unions. Our constitution unambiguously provides that “[mjarriage in this state shall consist only of the union of one man and one woman.” Tex. Const. art. I, § 32(a). And while other states allow same-sex unions, Texas is not “required to give effect to any public act, record, or judicial proceeding of any other State ... that is treated as a [same-sex] marriage under the laws” of that state. 28 U.S.C. § 1738C; see also Tex. Fam. Code § 6.204(c)(1) (indicating Texas courts may not “give effect” to such arrangements).
Strategically emphasizing this aspect of Texas law, Daly originally contested the divorce, contending that section 6.204 of the Family Code deprives Texas courts of jurisdiction to implicitly recognize same-sex marriage by issuing divorce decrees to same-sex couples. While Daly recognized
Although the trial court acknowledged Daly’s concerns and the complex issues Naylor’s petition raised, it did not resolve those issues, as the two women settled their differences over the course of a two-day hearing. At the end of the second day, the trial court orally granted an ostensible divorce “pursuant to the agreement [the parties had] recited into the record.” Recognizing that divorce may not be available to same-sex couples in Texas, this record stipulated that the judgment “is intended to be a substitute for ... a valid and subsisting divorce,” and “is intended to dispose of all economic issues and liabilities as between the parties whether they [are] divorced or not.” ■
Several lawyers from the Texas Attorney General’s Office were present during the hearing and the announcement of the trial court’s decision. The following day, the State filed a petition in intervention seeking “to oppose the Original Petition for Divorce and to defend the constitutionality of Texas and federal laws that limit divorce actions to persons of the opposite sex who are married to one another.” The State also raised a plea to the jurisdiction urging the court to dismiss Naylor’s petition. The State explained that the court lacked jurisdiction to render a divorce, but could declare the marriage void under Chapter 6 of the Family Code and pursuant to Daly’s response to the divorce petition. The State had not previously attempted to intervene or otherwise make its interests known to the court.
Daly objected to this attempted intervention, alleging the State has no justicia-ble interest in the case and that it filed its petition late. Naylor echoed Daly’s arguments in a motion to strike the intervention. Naylor also objected to the State’s jurisdictional plea, arguing that Texas law is unconstitutional to the extent it withholds the remedy of divorce. The trial court held a hearing on the contested intervention but ultimately decided not to entertain the State’s petition, emphasizing that the attempted intervention had come too late. The judge therefore did not rule on the motion to strike or the plea to the jurisdiction, but instead signed the judgment and encouraged the State to seek appellate review.
The court of appeals, however, dismissed the State’s appeal for want of jurisdiction, holding the intervention untimely and finding no basis for appellate standing. See generally State v. Naylor,
II
We agree with the court of appeals that the State lacks standing to appeal the trial court’s decree. Standing is a component of subject-matter jurisdiction, Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
A
This Court has consistently recognized the State’s right to defend Texas law from constitutional challenge.
In this case the trial court rendered final judgment when it orally announced the divorce. A court’s judgment is its announcement of the resolution of the issues in a lawsuit and is rendered “when the trial court officially announces its decision in open court or by written memorandum filed with the clerk.” S & A Rest. Corp. v. Leal,
The record confirms the trial court had already rendered judgment when the State
Because this oral pronouncement disposed of all issues between the two parties, and because the trial court indicated its intent to render immediate judgment, the announcement served as a binding judgment effective as of that moment. See Dunn v. Dunn,
B
Although the right to appeal is generally limited to parties of record, a third party may file an appeal where the prospective appellant is “deemed to be a party” under the doctrine of virtual representation. El Paso,
To begin with, the State is not bound by the disputed divorce decree, which settles various domestic matters and indicates that the women wish to dissolve any mari-' tal union that might exist. For example, the contested judgment does not financially obligate the State in any respect. Cf. Tex. Mut. Ins. Co. v. Ledbetter,
Nor has the State established identity of interest. In attempting to do so, the State relies heavily on El Paso, describing that case as “remarkably similar” to the circumstances at issue here. We disagree. El Paso arose from a constitutional challenge by a group of automobile dealers seeking to enjoin enforcement of certain statutory restrictions on their industry.
The court of appeals has already thoroughly explained how El Paso is distinguishable from this case. See
These [challenged] statutes display the privity and identity of interest between the parties to the suit and the Attorney General and Motor Vehicle Division. Both the Attorney General and the Motor Vehicle Division, like the [defendants], have a duty to enforce the challenged sections. In fact, the Attorney General derives enforcement power from the very same statute giving enforcement powers to the parties who participated in this case.
We find no analogous identity of interest between the State and the parties to this dispute. The State contends Daly represented its interests at the trial court, as ■she originally contested Naylor’s divorce petition. Yet the interests of Daly — who at all times asserted the legitimacy of her same-sex marriage — were never aligned with the State’s. Although Daly ostensibly contested the divorce and even submitted briefs outlining the State’s proposed alternate procedure for same-sex couples, Daly’s counsel expressly distanced himself and his client from the State’s position, explaining that he had “been given a lot of trouble about taking a position that from a theoretical and intellectual standpoint [he] might disagree with.” He also expressed uncertainty as to whether the State’s voi-dance procedure would offer the relief requested, in direct contravention of the State’s position on the matter. This is hardly zealous advocacy on behalf of the State of Texas, and it is certainly not the identity of interest necessary for the virtual-representation doctrine to apply. For these and the other reasons the court of appeals provides, we conclude that the doctrine cannot confer appellate standing upon the State.
C
Recognizing that its predicament “does not map perfectly onto the virtual-representation doctrine,” the State urges this Court to find an equitable basis for appellate standing in light of the unusual importance of the issues presented. We appreciate the significance of the State’s substantive arguments. As a sovereign entity, the State has an intrinsic right to enact, interpret, and enforce its own laws. See Printz v. United States,
Yet while we recognize the import of the State’s statutory and constitutional arguments, the State has identified no equitable doctrine that might allow it, as neither a factual nor virtual party, to seek appellate review of the trial court’s judgment. The State insists this Court “has never limited post-judgment intervention to the virtual-representation context,” but the State cites no precedent in which we allowed a third party to appeal without first satisfying the essential elements of the virtual-representation doctrine. The State further contends, “[T]he virtual-representation doctrine is not a crisp rule with sharp corners and must be determined on a case-by-case basis.” This is true, in the sense that even where a third party satisfies the virtual-representation doctrine, intervention may yet be denied when it is unjust to existing parties. See Lumbermens,
Indeed, in attempting to establish a right to third-party appeal the State conflates the question of whether a party with standing should be allowed to intervene on appeal with the predicate question of whether the party has standing at all. To be sure, “the right of intervention is ultimately rooted in equity.” Zeifman v. Michels,
Yet before this Court or the court of appeals can evaluate the equity of intervention, the prospective intervenor must establish its standing to present its argument on appeal. See Heckman v. Williamson Cnty.,
Ill
In his dissenting opinion, Justice Willett contends the State has standing to present its arguments and urges this Court to determine whether the trial court should have entertained the State’s petition in intervention. Yet even assuming this Court has jurisdiction to reach that question, we would find no abuse of discretion in the trial court’s decision not to consider the untimely petition.
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. Cf. El Paso,
More importantly, where the Legislature has given no indication to the contrary the State must abide by the same rules to which private litigants are beholden. As we have already explained, “a plea in intervention comes too late if filed after judgment and may not be considered unless and until the judgment has been set aside.” White,
IV
The State also seeks mandamus relief from the trial court’s adjudication of the divorce petition.
The Supreme Court of Texas shares mandamus jurisdiction with the courts of appeals. See Tex. Gov’t Code §§ 22.002(b), 22.221. Although a relator may file a petition for writ of mandamus directly with this Court, these petitions usually originate in the lower courts. “If [a] petition is filed in the Supreme Court without first being presented to the court of appeals, the petition must state the compelling reason why the petition was not first presented to the court of appeals.” Tex. R. App. P. 52.3(e). The State argues it did not file a mandamus petition in the court of appeals because it thought it would have standing to appeal. A litigant’s mistaken understanding of law is
The State further contends it did not submit its mandamus arguments to the court of appeals because the effort would have been futile. Specifically, the State describes the lower court as having “already made clear” its skepticism of the State’s arguments. But the record belies this description — the court of appeals found no jurisdiction over the appeal and did not reach the merits of the State’s arguments. See Naylor,
y
Finally, we would be remiss not to acknowledge Justice Devine’s careful and thorough treatment of the constitutional questions presented to the Court. The State asks us to determine whether Texas has a constitutional right to define marriage and whether state law precludes the trial courts from offering divorce to same-sex couples. We have no quarrel with Justice Devine’s analysis. Nevertheless, the same constitutional principles that reserve each state’s right to govern marriage also constrain the judiciary by limiting our reach to the adjudication of live controversies brought by parties with standing to appear before the courts. See U.S. Const. art. III, § 2, cl. 1; Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc.,
The constitutional questions presented here are raised by a litigant that failed to secure standing by properly presenting its arguments to the trial court and court of appeals. Consequently, this Court has no jurisdiction to reach those issues. See Douglas v. Delp,
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. Having already done so, and for the reasons stated herein, we affirm the decision of the court of appeals and deny the State’s petition for writ of mandamus.
Notes
. See generally State v. Hodges,
. See Middleton v. Murff,
.See Chenault v. Phillips,
.See In re Marriage of J.B. and H.B.,
. See Equitable Gen. Ins. Co. of Tex. v. Yates,
. The State does not request mandamus review of the court's refusal to entertain the petition in intervention. Cf. Terrazas,
. See In re Marriage of J.B.,
Concurrence Opinion
concurring.
I join the Court’s opinion and judgment, and particularly its conclusion that we cannot rely on equity to create standing for the State on appeal. But more importantly, I write separately to emphasize a point on which everyone agrees: the State of Texas is not bohnd by the divorce decree at issue in this case.
The underlying issues are critically important, but I agree with the Court that we cannot reach them because the State lacks standing to pursue this appeal. Although the State enjoys unique immunities, it “is subject to [procedural rules] as any other litigant.” Lowe v. Tex. Tech Univ.,
It was decided by this court, as long ago as the case of Smith v. Gerlach,2 Tex. 424 , and has never been since questioned, “that this writ [of error] can only issue at the instance of a party to the suit, or of one whose privity of estate, title, or interest appears from the record of the cause in the court below, or who may be the legal representative of such party.”
Wood v. Yarbrough,
The State was not a party to this suit. Although it attempted to intervene after the trial court rendered judgment, a post-judgment petition in intervention is ineffective unless the trial court sets aside its judgment. First Alief Bank v. White,
We have never said, as Justice Willett asserts, that a non-party can appeal even if it does not meet the requirements of virtual representation. When we quoted the First Circuit’s observation that the doctrine is not “a crisp rule with sharp corners” and must be applied on a case-by-case basis, see In re Lumbermens,
Just as a non-party who seeks to intervene before judgment must have a justicia-ble interest and standing, see Mendez v. Brewer,
But the State lacks standing to appeal because it was not a party, it shared no privity or interest with any party, and the trial court’s judgment is not binding on it. The virtual representation doctrine does not apply here precisely because the judgment is not binding on the State. City of San Benito,
(1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction; or
(2) right or claim to any legal protection, benefit, or responsibility assert*798 ed as a result of a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction.
Tex. Fam. Code § 6.204(b), (c).
The State has argued that these provisions prohibit Texas courts from granting a divorce to a same-sex couple that was married in another state because only married couples can get divorced in Texas, and these provisions prohibit courts from recognizing same-sex couples as being married.'Naylor counters that courts can grant divorces without recognizing the validity of or giving effect to the marriage, and in any event, the Texas Constitution and statute are void because they violate the federal constitution. The State finds support for its arguments in the Dallas court of appeals’ decision in In re Marriage of J.B. & H.B.,
Because the State lacks standing to appeal here, we lack jurisdiction to address these issues, which leaves the Dallas court’s opinion as the only currently existing Texas law on these issues.
Although we cannot address the issues here, what we can do and have done is confirm that, as the parties agree, the trial court’s divorce decree in this case is not binding on the State. As a non-party to this litigation, the State is not required to recognize the validity of this (or any other) same-sex divorce decree, and the Constitution and Family Code may in fact prohibit the State and its agencies and political subdivisions from doing so. If the State’s arguments are correct, then under Texas law Naylor and Daly are neither married nor divorced, and neither the State nor any agency or political subdivision can treat them otherwise.
Of course, we may have the opportunity in a future case to address these arguments. And as Justice Willett notes, the United States Supreme Court may resolve Naylor’s federal constitutional arguments before we have that opportunity. See post at 799 n.l. But unless and until a court with proper jurisdiction announces otherwise, the trial court’s judgment in this case is not binding on the State.
. Our reference to virtual representation as an “equitable” doctrine appears to be a recent development. Neither El Paso nor any of the cases on which we relied in El Paso— or even on which any of those cases relied-ever use the word "equity” or “equitable” to describe the virtual representation doctrine. See, e.g., El Paso,
. I also agree with the Court that we must deny the State’s alternative petition for writ of mandamus. As Justice Willett notes, we have stated that a person “need not be a party to the underlying litigation in order to seek mandamus relief.” Post at 810 (quoting Terrazas v. Ramirez,
Dissenting Opinion
joined by
Quite soon — within days — the Supreme Court of the United States will decide a core constitutional controversy: whether the United States Constitution commands a 50-state right to same-sex marriage.
“Who decides?” is a fateful question. A generation ago in Baker v. Nelson,
The High Court in Washington, D.C. will soon speak. The High Court in Austin, Texas will not. This Court holds the merits are unreachable because of an insurmountable procedural hurdle that, distilled down, poses fundamental questions about the attorney general’s powers, including his ability to defend Texas law against perceived, implicit constitutional attack. Specifically, the Court concludes the attorney general blundered the State’s right to intervene, rendering the State of Texas procedurally powerless to assert its argument that Texas law deprives state courts of jurisdiction in, same-sex divorce proceedings. More to the point: This Court lacks jurisdiction to say Texas courts lack jurisdiction.
Today’s decision turns on state procedural law, not federal constitutional law, but procedural matters matter. Intervention is an equitable doctrine, and I simply balance the equities differently. Some may frame this case as a purely private dispute, which is precisely the issue: whether weighty public concerns — the application and constitutionality of Texas marriage law — are sufficiently intertwined to warrant hearing from the State. In my view, the State’s chief legal officer — sworn to “preserve, protect, and defend” Texas
The attorney general may be right. He may be wrong. But he should be heard.
I respectfully dissent.
I. Background
In this case, a Massachusetts-married couple, Angelique Naylor and Sabina Daly, was initially split over splitting. Daly contested the divorce, and her answer to the divorce petition included a motion to dismiss and/or declare the marriage void. Her motion explained that the “Court does not have subject matter jurisdiction over this matter because Petitioner is asking the Court to recognize and enforce a marriage between two persons of the same sex which is contrary to the law and public policy of the State of Texas.” Daly also argued that “the ‘marriage’ between Petitioner and Respondent is invalid ... and the parties do not qualify for a divorce.” The State considered this the correct legal argument and, as a result, merely monitored the litigation rather than intervening right away.
The trial court doubted its own jurisdiction, repeatedly remarked on the “very important” constitutional issues, called the case “quite a legal mess,” and fretted its jurisdiction could “only be resolved by constitutional analysis, none of which has been fully briefed.” That briefing and constitutional analysis never happened. The next day, after learning the attorney general’s office was observing the proceedings, Daly abruptly scrapped her jurisdiction/voi-dance argument. She and Naylor promptly settled and asked the court to grant an agreed divorce decree, which the court announced from the bench. The State sought intervention the next day, before the court signed its judgment but after the court had verbally granted “an ostensible divorce.”
The parties’ settlement agreement is interestingly worded. It acknowledges that same-sex divorce might be unavailable under Texas law and notes the parties requested a divorce decree “to the extent” the trial court had “the power to do so.” The trial court’s divorce decree is unique, too. While declaring the parties divorced and the marriage “dissolved,” as did the settlement agreement, it concedes that the divorce “might not be legal in the State of Texas,” and if so, the order “is intended to be a substitute for ... a valid and subsisting divorce of these parties.” Similarly, the property-rights section of the decree purports to divide “any marital estate that might exist.” (emphasis added). The State dismisses these lawyerly turns of phrase as a semantic ruse and contends the parties have supplanted our adversarial legal system with an “illegal agreed judgment” that flouts Texas law by enshrining an “unconstitutional divorce decree.”
Are these parties lawfully divorced or not? Uncertainty abounds regarding a matter that demands — and deserves — certainty. Is their Massachusetts marriage intact, dissolved, or in some domestic-rela
Indecision breeds insecurity. If the attorney general is correct, then the trial court lacked subject-matter jurisdiction, meaning the divorce decree in this case is void and forever vulnerable to collateral attack at any time (unless the Texas Constitution and Family Code are themselves unconstitutional).
The Court does not confront the attorney general’s core argument: Texas courts cannot grant same-sex divorces without judicially invalidating Texas law. The issue is present but cannot be presented. I believe prudent equitable considerations weigh in favor of hearing from the State.
II. Discussion
The Court is correct that intervention after judgment is disfavored.
A. The virtual-representation doctrine, as historically articulated, may not apply, but a formulation amenable to threshold jurisdictional arguments might.
As the Court notes, the rule disfavoring post-judgment- intervention is sometimes relaxed under the virtual-representation doctrine.
The Court points mainly to the court of appeals’ explanation as to why virtual representation is a tough sell. The State itself concedes this dispute is “not a prototypical virtual-representation case.” Nonetheless, it argues virtual representation is warranted, as we have stated, “in order to vindicate important rights,”
But putting aside virtual representation and whether to allow some exceedingly narrow variant on these unique facts, I believe numerous equitable considerations weigh in favor of the State’s right to speak when the constitutionality of its laws is questioned, however obliquely, particularly when done so through artfully worded judgments that at once underscore and undermine appellate scrutiny of vital issues of jurisdiction and constitutionality.
B. Prudent equitable principles support the State’s intervention argument.
The Court says the State lacks standing to intervene on appeal, a prerequisite to our jurisdiction. The State says the jurisdictional defect is far more fundamental: Texas courts lack jurisdiction over same-sex divorces entirely.
This is a controversial case — undeniably — but that is not the reason the State deserves the right to be heard. The issue is less subject matter than subject-matter jurisdiction. The attorney general insists that Texas courts have no judicial power to dissolve a same-sex marriage (the precise position Daly initially argued and that the trial court openly worried about). The Court today does not address this question, saying the attorney general waited
At the same time, it is precisely the notoriety of the underlying issue, and the attorney general’s demonstrated record of engagement, that might spur litigants to wire around intervention. Recently, a state judge in Travis County quietly signed an order barring enforcement of Texas’s traditional marriage laws.
I understand that in certain proceedings everyone in the courtroom — litigants, counsel, and judges alike — may prefer no involvement by the attorney general. But Texas law commands involvement by the attorney general, no matter how righteous or urgent the cause is thought to be. That’s precisely the point of the notice law. The Legislature has determined that state law is entitled to a vigorous defense. The attorney general isn’t omnipresent, able to monitor every filing in every courthouse across 254 counties. The tension is between what the parties logically want (their case off the radar) and what Texas legally requires (their case on the radar). The notice law recognizes, and forthrightly aims to thwart, the desire to engage in procedural corner-cutting to avoid unwanted attention.
The legal airtightness of a same-sex couple’s divorce cannot hang on a reed so thin
On matters of this consequence, when there is such hard-wired incentive for artful pleading, semantic gamesmanship, and tactical shortcuts in order to evade adversarial presentation and judicial review of momentous jurisdictional and constitutional issues, I would banish all uncertainty. Does Texas law allow same-sex couples to divorce or not? And if not, does that violate the United States Constitution? Let us decide once and for all and be done with it.
1. Subject-matter jurisdiction is always front and center and must always be confirmed.
“Subject matter jurisdiction is never presumed and cannot be waived.”
In a same-sex divorce action, even if no party points to the Family Code or to the Texas Constitution as posing jurisdictional hurdles (or notes the attendant federal constitutional implications), courts must independently confirm their own jurisdiction, including awareness that Texas law might have something to say about the matter— and that the federal Constitution could be implicated, too. By granting a same-sex divorce, a Texas trial court implicitly holds it has subject-matter jurisdiction, either because the Family Code and Texas Constitution do not bar jurisdiction, or because any putative jurisdictional bars are unconstitutional under the federal Constitution. The trial court here, having bluntly fretted about the “interesting constitutional issues” and “jurisdictional question[s],” knew its ruling was implicating serious matters.
2. Limits on subject-matter jurisdiction merit genuine adversarial presentation.
A legislature’s ability to limit courts’ subject-matter jurisdiction helps disaggre-gate power among the three branches, but once established, the power to enforce ju
Typically, adversarial presentation by opposing parties helps mollify this concern. But where the parties are not oppositional, and given the courts’ jurisdictional self-policing, we have reason to be watchful. This case is illustrative. Parties seeking a hassle-free, no-fault divorce have zero incentive to challenge the trial court’s subject-matter jurisdiction. Here, although Daly initially disputed the trial court’s jurisdiction, she later abandoned that view, and the parties swiftly bridged their differences.
As noted above, jurisdiction is an omnipresent issue, and where no party challenges it, and has no incentive to, courts must still address it. Thus, one irony of jurisdictional issues is them persistence in the absence of adversarial presentation.
In my view, a court inclined to restraint should receive — not grudgingly but gratefully — arguments from the attorney general on alleged bars to the court’s jurisdiction, particularly when the nature of the proceedings removes any expectation the parties themselves will speak up. The intervention of the attorney general does not imperil the independence of the judiciary to adjudicate disputes, but it does ensure the virtuous check of adversarial presentation where there would otherwise be none.
3. /«direct constitutional attacks deserve zealous attorney general advocacy, too.
I am confident the Court agrees the attorney general may intervene in private litigation when a party directly attacks a law’s constitutionality. The Legislature presumes the same, indeed promotes it, requiring notice to the attorney general at least 45 days before judgment in order to give the State the opportunity to intervene.
I see no meaningful, nonartificial distinction between a direct constitutional challenge and this case. Here, the risk that section 6.204(a) of the Family Code or Article I, section 32(a) of the Texas Constitution will be declared unconstitutional is present even if neither party to the divorce expressly attacks those laws. Parties may not realize Texas law might bar the proceeding. That’s precisely why courts have an independent, sua sponte duty to confirm jurisdiction exists. Here, Daly actually raised jurisdiction, initially arguing the trial court had none, and the trial court itself candidly spoke of the significant jurisdictional and constitutional uncertainties.
Here, the trial court necessarily, if tacitly, weighed in on the application of section
Even absent State intervention, however, a trial court could well realize on its own, as this one did, that jurisdictional issues were at play, and then proceed to declare Texas law unconstitutional, without thé State ever uttering a peep in defense. Just as a raised constitutional issue may be unaddressed, an unraised constitutional issue may be addressed, particularly where such a determination relates to the boundaries of the court’s own power. Laws can be invalidated whether or not litigants flag constitutionality. So why would attorney general intervention be appropriate only when a party expressly attacks Texas law? Express or implicit, direct or indirect — indeed, raised or unraised — Texas law is potentially imperiled.
If the chief legal officer of Texas, sworn to “preserve, protect, and defend” the Constitution and laws of Texas,
4. The parties seek a divorce declaration that necessarily presumes a valid marriage.
Daly and Naylor asked the trial court to deploy the judicial resources of the State of Texas to effect their dissolution. Specifically, they sought a legal benefit in the form of a legally valid and enforceable divorce decree dividing their assets. In doing so, they asked for something the State’s chief lawyer insists the court had no authority to give, at least not without tacitly ruling Texas law unconstitutional.
Texas law forbids giving effect to something that “creates, recognizes, or validates” same-sex marriage.
In the most practical sense, Daly and Naylor sought a formal declaration, however connotative, of the application and validity of Texas’s traditional marriage laws. The trial court openly wrestled with all these issues — questioning its own jurisdiction, describing the case as “quite a legal mess,” noting the “interesting constitutional issues,” and requesting more briefing, before abruptly shifting gears the next day.
As noted above, section 402.010 of the Government Code states that when a party challenges the constitutionality of a state statute, the court must serve notice on the attorney general and may not enter final judgment for 45 days following the date of notice. Although the Legislature enacted section 402.010 after the trial court took action in this case,
Here, Naylor sought a legally enforceable divorce decree that, according to the attorney general — and with whom Daly initially agreed — was only available if the trial court declared Texas’s jurisdictional limitation unconstitutional. While the divorce petition did not expressly seek such a declaration, I would hold that a party cannot circumvent a constitutional issue necessarily, if obliquely, presented — as well as the right of the attorney general to be heard on the matter — by neglecting to mention the issue in his pleading. To hold otherwise would allow litigants to obtain relief the Legislature has prohibited, relief that is available only if the trial court invalidates the prohibition as unconstitutional.
Litigants should not be able to camouflage constitutional questions through artful pleading. State law is sensibly designed to facilitate intervention by the attorney general where the trial court might possibly declare Texas law unconstitutional, and the parties (and the court) are all too happy to leave the law unmentioned — and undefended.
5. Parties should not be incentivized to circumvent jurisdictional limits by agreement or artful pleading.
In my view, when (1) the nature of the proceedings suggests the parties lack ad
By way of illustration, the Property Code affirmatively recognizes the attorney general’s authority to “intervene in a proceeding involving a charitable trust,”
Nor should parties be permitted to cut off the attorney general’s interest before he is able to assert it merely by stipulating that a trust is not a charitable one, or that a settlement does not involve unclaimed property, or by neglecting to affirmatively flag such issues altogether. Such furtiveness would deprive the attorney general of the opportunity to appeal the threshold determination on which his interest is anchored.
Finally, denying the State’s intervention in such a suit excludes the only party with an incentive to challenge subject-matter jurisdiction, thus underscoring the structural necessity of his presence to ensure sober jurisdictional review — a review this
C. Alternatively, the Court should grant the State’s petition for writ of mandamus in order to allow the attorney general to be heard on subject-matter jurisdiction.
I also disagree with the Court’s refusal to consider the State’s mandamus petition as a means of addressing the State’s arguments regarding the trial court’s subject-matter jurisdiction. As we stated in Terrazas v. Ramirez,
Although a petition that is originally filed in the Supreme Court must “state a compelling reason why the petition was not first presented to the court of appeals,”
In rejecting the State’s proffered explanations, the Court relies on our per curiam denial of the petition for writ of mandamus in In re Lumbermens Mutual Casualty Co.
Although the Court now refuses to consider an “unreviewed mandamus argument,”
However, because the State purported to file an appeal rather than an original proceeding in the court of appeals, the Court has chosen to ignore the substance of the State’s arguments entirely.
III. Conclusion
It is not uncommon for litigants in our adversarial system to talk past each other and frame cases in polar opposite ways. Daly and Naylor, initially at odds over jurisdiction and constitutionality, now describe this case as a purely private matter. The State of Texas contends legitimate public concerns are at stake. Does Texas law constitutionally deprive state courts of jurisdiction in same-sex divorce cases? The State says yes; the parties say no;
I would permit the State to intervene and lodge statutory and constitutional objections to a court’s subject-matter jurisdiction, the exercise of which arguably necessitates treating — if not implicitly holding — Texas law as unconstitutional. Here, the State contends the issue of constitutionality is necessarily baked into a same-sex divorce proceeding. The State of Texas has an inherent justiciable interest in defending the constitutionality of its democratically enacted laws and is unquestionably injured when those laws are judicially, if inaudibly, invalidated.
Within days, the U.S. Supreme Court may well constitutionalize a 50-state right to same-sex marriage, and if so, the merits of that case (who can marry) will likely subsume the merits of this case (who can divorce). But regardless of the vital substantive issue at stake, there are vital standing — intervention—jurisdiction issues, too. The federal constitutional merits lurking in today’s case will be, addressed within days. But this case also raises significant Texas-specific issues visa-vis the State’s chief legal officer, and this Court has final say over those. The Court says late is late, and the attorney general cannot tardily assert that the trial court lacked jurisdiction and tacitly declared Texas law unconstitutional. Today’s bottom line: This Court lacks jurisdiction to decide if state courts lack jurisdiction.
In my view, the attorney general — constitutionally bound to “represent the State in all suits”
I respectfully dissent.
. See Obergefell v. Hodges,
. - U.S. - ,
. Id. at 2693.
. See Me. Rev. Stat. tit. 19-A, § 650-A (2012); Md. Code Ann., Fam. Law §§ 2-201, 2-202 (2013); Wash. Rev. Code Ann. § 26.04.010 (2012).
. Del. Code Ann. tit. 13, § 129 (2013); Haw Rev Stat. § 572-1 (2013); 750 III. Comp. Stat. 80/10 (2014); Minn. Stat. § 517.01 (2013); N.H. Rev. Stat Ann. § 457:l-a (2010); N.Y. Dom. Rel. Law § 10-a (McKinney 2011); R.I. Gen. Laws § 15-1-1 (2013); Vt. Stat. Ann. tit. 15, § 8 (2009). The District of Columbia has also legalized same-sex unions via legislative action. D.C. Code § 46-401 (2010).
. See, e.g., Latta v. Otter,
.
. Id. at 810,
. Sosna v. Iowa,
. Tex. Const, art. XVI, § 1.
. Ante, at 786.
. Tex. Ass'n of Bus. v. Tex. Air Control Bd.,
. Ante, at 787. "Ordinarily, a trial court does not abuse its discretion by denying a motion to intervene after the court has rendered a final judgment.” In re Lumbermens Mut. Cas. Co.,
. Tex. Mut. Ins. Co. v. Ledbetter,
. See Melissa Drosjack, Gay couple won’t get Texas divorce, Houston Chronicle (March 29, 2003).
. Highland Homes v. State,
. Ultimately, the Court held that "the State's argument for the application of the [UPA] cannot succeed unless class representatives' authority to act for class members under Rule 42 is disregarded.” Id. at 412. Having implicitly approved of the trial court's determination "that Plaintiffs and Class Counsel ... have adequately represented the interests of the Settlement Class,” id. at 408, it would have been a simple matter for the Court to hold that there was no interest for the attorney general to represent, leaving him without a justiciable interest to represent and leaving the Court without jurisdiction over questions arising from his intervention.
Moreover, despite ultimately holding the UPA inapplicable, we did not treat the appropriateness of intervention as turning upon whether the parties had squarely litigated the UPA's applicability. In addition, although the parties took it upon themselves to notify the attorney general of the proposed cy pres award, id. at 408, it escapes me how notifying the attorney general of a suit could provide
. See Lumbermens I,
. Id. at 725 (internal quotation marks omitted).
.Ledbetter,
. Lumbermens I,
.
. Id. at 110.
. See id.
. Id. at 110-11.
. Lumbermens I,
. For example, in the Second Circuit, "a nonparty may appeal when the nonparty has an interest that is affected by the trial court's judgment,” not just when the nonparty can show he is legally bound by the judgment. See United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., AFL-CIO,
The Court today emphasizes, "the State is not bound by the disputed divorce decree.” Ante, at 789. The State fully agrees, but not because it concedes a lack of involvement — or lack of stake — in the proceedings. Rather, it "is not bound by the district court's void divorce decree — and neither are Respondents or anyone else, as a void judgment issued without jurisdiction can never be enforced.” If this legal position is sufficient to defeat application of the virtual-representation doctrine, then no party could ever be virtually represented in a proceeding in which the trial court lacked subject-matter jurisdiction. The very reason the State concedes it is not bound — indeed, why nobody is — is because it is impossible for anyone to be bound by a void judgment issued by a jurisdiction-less court.
The State is speaking an entirely different legal vocabulary. While not bound it is certainly constrained, powerless to uphold laws that will be steadily stiff-armed (as the State sees it) until it timely discovers a proceeding in a court willing to entertain its jurisdictional arguments. As for identity of interest, the State’s interest here is plainly put — the enforcement and constitutionality of Texas law — but it’s difficult to have identity of interest about enforcement and constitutionality with litigants who want no talk of enforcement and constitutionality.
. The judge issued a temporary restraining order enjoining the county clerk from "relying on the unconstitutional Texas prohibitions against same-sex marriage as a basis for not issuing a marriage license to” a specific couple. Goodfriend v. Debeauvoir, No. D-1-GN-15-000632,
. See Tex. Gov’t Code § 402.010(a) ("The court shall, if the attorney general is not a party to or,counsel involved in the litigation, serve notice of the constitutional challenge and a copy of the petition, motion, or other pleading that raises the challenge on the attorney general....”). Even if the attorney general had received such notice, however, it likely would have been difficult to mount any defense of constitutionality in the time that elapsed between the trial court’s order allowing the plaintiffs to file their initial pleadings in paper form — marked as 8:51 a.m. on February 19, 2015 — and the trial court’s subsequent order finding that the "unconstitutional statutory and state constitutional prohibitions in Texas against same-sex marriage” were causing the plaintiffs immediate and irreparable damage — marked as 8:52 a.m. on February 19, 2015.
. In re State, No. 04-14-00282-CV,
. See Tex. Gov’t Code § 402.010(b) ("A court may not enter a final judgment holding a statute of this state unconstitutional before the 45th day after the date notice required by Subsection (a) is served on the attorney general.”).
. Tex. Ass’n of Bus.,
. City of DeSoto v. White,
. The pleadings suggest Daly abandoned her jurisdiction argument and the parties resolved their property dispute after they became aware the attorney general was monitoring the courtroom proceedings.
. Tex. Gov’t Code § 402.010(a) — (b).
. See In re B.L.D.,
. By conflating the preference for resolving interpretive choices in favor of constitutionality with the preference for resolving cases without any reference to the Constitution, the court of appeals’ opinion presents an erroneous inversion of this determinative order. The court of appeals suggests that because the trial court would have to reach the question of section 6.204’s validity unless the section is inapplicable, the court must hold that section 6.204 is inapplicable. See
. Tex. Const. art. XVI, § 1.
. Even if the State is mistaken that jurisdiction must necessarily be addressed in order to grant a same-sex divorce, the incorrectness of that view does not mean the State lacks standing to make the argument.
. Tex. Fam. Code § 6.204(c)(1).
. Act of May 24, 2011, 82d Leg., R.S., ch. 808, § 1, 2011 Tex. Gen. Laws 1873.
. Cf. Tex Gov’t Code § 402.010(c) ("A party's failure to file as required ... or a court’s failure to serve notice as required ... does not deprive the court of jurisdiction or forfeit an otherwise timely filed claim or defense based on the challenge to the constitutionality of a statute of this state.”).
. Section 37.006(a) of the Civil Practice and Remedies Code imposes a similar notice requirement in the declaratory-judgment context: "When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties.” Tex. Civ. Prac. & Rem. Code § 37.006(a). Section 37.006(b) then makes clear, if it were not already so, that the State has a sufficient interest to be made a party in a case where the original plaintiff seeks a holding that a state statute is unconstitutional: "In any proceeding ... if the statute ... is alleged to be unconstitutional, the attorney general of the state must be served with a copy of the proceeding and is entitled to be heard.” Id. § 37.006(b).
. Similarly, the defendant and collecting class members’ lack of a stake in protecting the missing class members’ property interests in the settlement agreement was a background concern in Highland Homes. See
. Tex. Prop. Code § 123.002.
. But see Allred v. Beggs,
. But see Allred,
. As we observed in Texas Association of Businesses v. Texas Air Control Board-.
If we were to conclude that standing is unreviewable on appeal at least three undesirable consequences could result. First and foremost, appellate courts would be impotent to prevent lower courts from exceeding their constitutional and statutory limits of authority. Second, appellate courts could not arrest collusive suits. Third, by operation of the doctrines of res judicata and collateral estoppel, judgments rendered in suits addressing only hypothetical injuries could bar relitigation of issues by a litigant who eventually suffers an actual injury.
.
. Id. at 723.
. See Travelers Ins. Co. v. Joachim,
. See Tex. R. App. P. 52.3(e).
. Terrazas,
. Id. at 723.
. Ante, at 794-95. But see Terrazas,
.
. Id. ("In light of this disposition, we deny Lumbermens' petition for writ of mandamus without regard to the merits and without prejudice to Lumbermens’ ability to seek relief from the trial court or the court of appeals.”).
. Id.; see also Williams v. Huntress,
. Ante, at 794.
. See
. See Hursey v. Bond,
.
. Cf. Terrazas,
. But see Mueller v. Saravia,
. See, e.g., Clay Exploration, Inc. v. Santa Rosa Operating, LLC,
. Tex. Const, art. IV, § 22.
Dissenting Opinion
dissenting.
I fully join Justice Willett’s dissent and agree that the State could intervene. But resolving this case, which concerns a trial court’s grant of a divorce to a same-sex couple, requires reaching additional issues. Texas law recognizes only traditional, heterosexual marriages, and I would hold that it divests state courts of subject-matter jurisdiction over same-sex divorce proceedings. The traditional concept of marriage, which the State intervened to protect, does not violate the United States Constitution. Though this issue is pending before the Supreme Court of the United States,
I. What is Marriage, and Divorce, in Texas?
Angelique Naylor and Sabina Daly, who obtained a marriage license under Massachusetts law, were granted a divorce by a Texas trial court. Only a party to a valid marriage may seek a divorce in Texas. See Tex. Fam. Code §§ 6.001-.008 (pertaining to divorce). In other words, to obtain a divorce, parties must first be married. Under the Texas Constitution, “marriage” “consist[s] only of the union of one man and one woman.” Tex. Const, art. I, § 32(a). The Texas Constitution further prohibits the state from “creating] or recognizing] any legal status identical or similar to marriage.” Tex. Const, art. I, § 32(b). The Family Code also makes same-sex marriages void in Texas and pro
Accordingly, Texas law prohibited the trial court from granting a divorce to Nay-lor and Daly, for Texas does not recognize them as married, and there can be no divorce without a marriage. What is more, this prohibition deprived the trial court of subject-matter jurisdiction over the divorce case.
In this case, the trial court overstepped the bounds of its jurisdiction under the Texas Constitution and state law when it granted a divorce to Naylor and Daly.
II. Does the U.S. Constitution Allow Texas to Adhere to the Traditional Definition of Marriage (and Divorce)?
Naylor and Daly assert that this statutory and constitutional scheme is unconstitutional-that the United States Constitution requires Texas to grant , divorces to same-sex couples married in other states. They assert that Texas law violates the Equal Protection Clause and the Due Process Clause, as well as the Full Faith and Credit Clause and the right to travel. I firmly believe that the state laws confirming Texas’ commitment to traditional marriage do not violate the United States Constitution.
A. Due Process
The Fourteenth Amendment prohibits states from “depriving] any person of life, liberty, or property, without due process of
1. Substantive Dm Process
The Due Process Clause has been held to protect certain fundamental rights, including the right to many. Washington v. Glucksberg,
Does the Due Process Clause require Texas to allow same-sex marriages? In 1967, the United States Supreme Court declared marriage to be a fundamental right. Loving v. Virginia,
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.... Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Id. But acknowledging this right does not answer the question — it begs it: what is it to “mai~ry”? (or to divorce?) Does the Constitution prohibit Texas from limiting marriage to a man and a woman?
At this point, I pause to note what this case is not about. It does not concern state laws limiting access to marriage based on parties’ personal characteristics that, under any proposed definition of marriage, are irrelevant to whether the marriage is actually a marriage. Contrast, for example, Loving v. Virginia, where the Supreme Court held that the Due Process Clause prohibited a state ban on interracial marriages.
The U.S. Supreme Court, while striking down section 3 of the Defense of Marriage Act, expressly recognized that “[b]y histo
And I believe the Due Process Clause does not create such a fundamental right to same-sex marriage. “[E]xamining our Nation’s history, legal traditions, and practices,”
Indeed, were there a fundamental right to marriage beyond its traditional, heterosexual bounds, the demands of strict scrutiny would upend many aspects of our marriage laws. Consider, for example, section 6.201 of the Family Code, which voids marriages between certain close relatives. The State’s apparent interest is preventing the genetic consequences of inbreeding. But if the right to marriage is not limited to opposite-sex relationships which, at least in the abstract, are capable of procreation, would the State’s interest in these consanguinity provisions apply to same-sex marriages? Or would these provisions fail (at least when applied to same-sex couples) for being overinclusive, not narrowly tailored? See Reno v. Flores,
In sum, I cannot conclude that a fundamental right to same-sex marriage exists. If the right to marry exceeds what is-recognized by our history, legal traditions, and practices, then what are its limits? Surely this is a matter properly within the Legislature’s discretion. Accordingly, I would apply rational basis review to the Texas laws limiting marriage to one man and one woman. This is discussed below following the Equal Protection analysis.
The United States Supreme Court has previously addressed the importance of the right to divorce in the context of procedural due process. In Boddie v. Connecticut, the appellants lacked access to the courts and were denied any means of dissolving their marriages. This was unconstitutional because “persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.”
Here, parties to a void marriage may sue to have the marriage declared void .under the Family Code. Tex. Fam. Code § 6.307. Though voidance procedures do not afford the same benefits as divorce, they offer process and are an effective alternative to divorce procedures. They allow for the settlement of property disputes, the attachment of suits affecting the parent-child relationship (SAPCRs), and other legal process incidental to the dissolution of a purported marriage. By providing for the “adjustment of differences” following a marriage valid in another jurisdiction, voidance procedures allow for a meaningful opportunity to be heard. Therefore, I conclude that the voidance procedures outlined in Chapter 6 of the Texas Family Code provide adequate procedural protections as Boddie requires.
B. Equal Protection
The Fourteenth Amendment’s Equal Protection Clause prohibits each state from “denying] to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The United States Supreme Court has clarified that the Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,
1. Level of Constitutional Scrutiny
“When a state distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment.” Zobel v. Williams,
In Windsor v. United States, the Second Circuit classified gays and lesbians as a “quasi-suspect class,” requiring the government to prove that the Defense of Marriage Act was substantially related to furthering an important government interest.
2. Rational-Basis Review
When laws create a classification scheme without burdening a fundamental right or targeting a suspect class, the laws are “presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne,
These interests rationally relate to limiting divorce to those who have entered into a marriage recognized as valid by the Texas Constitution and the Texas Family Code. Two people cannot “divorce” without first being “married.” To grant the divorce is to acknowledge the marriage, and to acknowledge that two people of the same sex can be married is to undermine the State’s interest in preserving the traditional definition of marriage — that of furthering stable family environments for procreation and the rearing of children by a mother and a father.
In effect, Naylor and Daly invoke the Equal Protection Clause to redefine what divorce is. Yet, if “[b]y history and tradition the definition and regulation of marriage ... has been treated as being within the authority and realm of the separate States,” Windsor,
The State’s concept of divorce (and marriage) does not withhold access based on a protected status to what the people of Texas have defined as a valid marriage. The State’s concept of divorce (and marriage) is not motivated by animus toward a particular group; it is based on a historical understanding of what “marriage” actually is and how this fosters a healthy family environment for children. The State’s concept of divorce (and marriage) does not deprive individuals of a fundamental right, for there has never been a fundamental right to marry someone of the same sex. And the State’s approach to divorce is rationally related to preserving the traditional definition of marriage, which furthers the State’s interest in fostering stable families where children are raised by a mother and a father. Whether the State’s means of achieving its interest is wise or unwise is not a question for this Court, but for the people of this State, and they have spoken. I conclude that section 6.204 does not violate the Equal Protection Clause of the Fourteenth Amendment.
C. Full Faith and Credit
Article IV, Section 1, of the United States Constitution provides: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. Const, art. IV, § 1. In this case, Congress has clearly prescribed the effect of same-sex marriage laws in other states. Section 2 of the Defense of Marriage Act, which was not at issue in Windsor, provides:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Defense of Marriage Act § 2(a), 28 U.S.C. § 1738C. Texas, therefore, is not required to “give effect to” Naylor arid Daly’s marriage in Massachusetts.
Furthermore, it would be against Texas state policy to recognize Naylor and Daly’s same-sex marriage. In Nevada v. Hall, the Supreme Court recognized a public-policy exception to the Full Faith and Credit Clause to the extent Congress does not prescribe otherwise.
In Castilleja v. Camero, a lottery-proceeds case, we outlined the “test for refusing to enforce a right lawfully arising in another jurisdiction”:
To justify a court in refusing to enforce a right of action which accrued under the laws of another state, because against the policy of our laws, it must appear that it is against good morals or natural justice, or that for some other reason the enforcement of it would be prejudicial to the general interests of our own citizens.
D. Right to Travel
“[Fjreedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” United States v. Guest,
In Saenz v. Roe, the Supreme Court held:
The “right to travel” discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.
[[Image here]]
I conclude that the underlying divorce suit attacks the validity of our constitutional and statutory prohibition on same-sex marriage. I further conclude that the trial court is prohibited by state law from granting a divorce in this case and can only void the marriage or dismiss the case. I finally conclude that Texas law declaring same-sex marriages void does not violate the federal Constitution. I would accordingly reverse the judgment of the court of appeals and remand to the trial court for further proceedings consistent with these conclusions. Because the Court does not, I respectfully dissent.
. See Obergefell v. Hodges, No. 14-556 (U.S. argued Apr. 28, 2015).
. See In re Marriage of J.B. & H.B.,
. Even within the past year, some federal courts have concluded that the U.S. Constitution does not condemn the historical definition of marriage. See DeBoer v. Snyder,
. As the Sixth Circuit explained, "Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.” DeBoer, 111 F.3d at 411.
. Glucksberg,