The Texas Supreme Court granted petition for review in two Texas gay divorce cases, In re J.B. and State v. Naylor. This means that the Court has agreed to hear the cases as to the merits of the issues raised.  The Court has also scheduled oral argument for November 5, 2013, at 9:00 a.m.  Oral arguments are webcasted live on the internet through the State Bar’s CLE website. We at O’Neil & Attorneys plan to watch the live webcast and live tweet our reactions to the arguments.  So, follow us on twitter @oneilattorneys.

The question squarely before the Texas Supreme Court is the application of the Texas version of the Defense of Marriage Act contained in Texas Family Code section 6.204, which prohibits the state from giving effect to any judicial proceeding that “creates, recognizes, or validates a marriage between persons of the same sex… in this state or in any other jurisdiction” or that gives effect to any “right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex… in this state or in any other jurisdiction”. See statute here. The Texas statute prohibits Texas courts from giving full faith and credit to the laws of other states which grant same-sex marriages.  The federal Defense of Marriage Act (DOMA) found in 28 U.S.C. section 1738C, allows state courts to disregard full faith and credit as it applies to same-sex marriages. J.B. and Naylor challenge the constitutionality of the Texas statute to prohibit a same-sex couple, married in another state but residing in Texas, to obtain a divorce in Texas courts.  You can read the briefs filed by either side in both of these cases here:  In re J.B. Case #11-0024 and State v. Naylor Case #11-0114.

Interestingly, Justice Ruth Bader Ginsburg became the first US Supreme Court justice to preside over a same-sex wedding ceremony last weekend.  In a story by the Washington Post Ginsburg will be first justice to officiate at same-sex wedding, Justice Ginsburg stated, “I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship.” This could foreshadow the US Supreme Court’s take on the application of state laws, like the Texas statute, which refuse to acknowledge legal same-sex marriages from other states if a case on point were in front of the US Supreme Court.  The In re J.B. case could be that case following the decision made by the Texas Supreme Court.

The question in Texas remains…. Will the Texas Supreme Court uphold Judge Tena Callahan’s (Dallas’ 302nd District Court) ruling declaring Texas Family Code section 6.204 unconstitutional?  Or, will the Texas Supreme Court agree with the Dallas Court of Appeals decision In re J.B.,  326 S.W.3d 654 (Tex. App. – Dallas 2010) reversing Judge Callahan and upholding the statute?  Many rumors are swirling in legal circles over how the Texas Supreme Court may rule, but until they do, we will not know.

See my prior blog posts about the In re J.B. case:

Dallas Judge: Ban on Gay Marriage and Divorce Unconstitutional

Dallas Judge Tena Callahan speaks publicly for the first time since her controversial ruling

Same-Sex Divorce in Texas:  Austin Court of Appeals opens the door

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.