Filed

10 February 11 P2:56
Amalia Rodriguez-Mendoza
District Clerk
Travis District
D-1-FM-09-000050
NO. D-1-FM-09-000050

IN THE MATTER OF § IN THE DISTRICT COURT

THE MARRIAGE OF § OF TRAVIS COUNTY, TEXAS
§ 126TH JUDICIAL DISTRICT
ANGELIQUE S. NAYLOR §
AND SABINA DALY §
§
AND IN THE INTEREST OF §
JAYDEN ABEL DALY, A CHILD §

PETITION IN INTERVENTION OF THE STATE OF TEXAS

Throughout these proceedings, Respondent Sabina Daly has accurately stated Texas

law in asking this Court to void her marriage, rather than grant a divorce. She included in

her original answer a “Motion To Declare Marriage Void In Texas.” In support of her

motion, she explained that “[t]his Court does not have subject matter jurisdiction over this

[divorce] 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.” Answer at 2. She observed that, because “Texas does not recognize marriages

between persons of [the] same sex, . . . the ‘marriage’ between Petitioner and Respondent is

invalid (Littleton v. Prange, 9 SW3d 223, 225 [Tex. App.—San Antonio 1999, pet. denied])

and the parties do not qualify for a divorce.” Id. at 3. And she correctly concluded that the

Court should instead “declare the marriage void.” Id. at 4. See also Mireles v. Mireles, 2009

WL 884815, *2 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (same).

Based on these representations, the State of Texas declined to intervene in these

proceedings. After all, voidance is the legally proper vehicle for quickly and effectively

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achieving the objectives of the parties in this case. Through an action for voidance, the

parties can achieve a legal termination of their Massachusetts marriage, through an

enforceable judgment that is entitled to interstate respect and recognition. See, e.g., Sutton

v. Lieb, 342 U.S. 402, 408 (New York annulment decree “entitled to full faith and credit

throughout the Nation”). An action for voidance allows parties to resolve any disputes

concerning property—indeed, the parties here have apparently already reached agreement

with respect to property. See, e.g., Hovious v. Hovious, 2005 WL 555219, *6 (Tex.

App.—Ft. Worth 2005); T EX. F AM. C ODE § 6.204 historical note [Defense of Marriage Act,

78th Leg., R.S., ch. 124, § 2, 2003 Tex. Gen. Laws 171]. Finally, an action for voidance

permits parties to resolve any issues relating to an adopted child, by filing a separate “suit

affecting the parent-child relationship”—which the parties here have already filed and

resolved. See T EX. F AM. C ODE § 102.001, et seq.

By pursuing an action for voidance, instead of divorce, the parties can quickly resolve

this case and move on with their lives—without raising any unnecessary constitutional

questions about, or attacks on, the Texas Constitution, Family Code, and the federal Defense

of Marriage Act, that would warrant intervention by the State of Texas in this matter.

Late yesterday afternoon, however, the State learned that Daly may be reconsidering

her position, and that she may change course and instead pursue a divorce—even though, by

all indications, all of her objectives in this case could be achieved through voidance.

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 This development injects unfortunate uncertainty into these proceedings that

necessitates intervention by the State of Texas in order to preserve its rights. The parties

could quickly and lawfully achieve all of their objectives in this litigation simply by pursuing

relief through an action for voidance—rather than divorce. But until then, the State of Texas,

in order to preserve its rights on behalf of the laws and the people of Texas, hereby

intervenes in this action as a party respondent, in order to defend Texas and federal law

against apparent constitutional attack.

I. Parties

1. Intervenor is the State of Texas, represented by the Attorney General of Texas,

who files this Petition in Intervention as the State’s chief legal officer.

2. Petitioner Angelique S. Naylor is an individual. A true copy of this petition

is being forwarded to Jennifer R. Cochran, attorney of record for Petitioner, by certified mail

at The Law Office of Jennifer R. Cochran, 13062 Hwy 290 West, Suite 201, Austin, Texas

78737.

3. Respondent Sabina Daly is an individual. A true copy of this petition is being

forwarded to Robert B. Luther, attorney of record for Respondent, by certified mail at Law

Offices of Robert B. Luther, P.C., 919 Congress, Suite 450, Austin, Texas 78701.

II. Course of Proceedings

5. In 2003, the Supreme Judicial Court of Massachusetts determined that,

notwithstanding that State’s statutory law, “marriage” for purposes of Massachusetts law

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means “the voluntary union of two persons as spouses,” including the union of two persons

of the same sex. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 968-69 (Mass. 2003).

6. On or about September 27, 2004, Petitioner and Respondent, two women, were

married under Massachusetts law.

7. On December 3, 2009, Petitioner filed this action seeking a divorce under

Texas law on the ground of insupportability.

8. On December 9, 2009, Respondent filed an answer and also moved for a

declaration that the marriage is void under Texas law.

9. On February 3, 2009, Petitioner and Respondent resolved a suit affecting the

parent-child relationship by entering a settlement agreement. The State’s intervention in this

case, and the relief the State requests, does not alter the terms of that agreement or the

parental rights of Petitioner or Respondent.

10. On February 10, 2009, Petitioner and Respondent agreed in principle to a

settlement dividing their property, and presented their agreement to the Court. The State’s

intervention in this case, and the relief the State requests, does not alter the terms of the

parties’ agreement to divide their property.

III. Intervenor’s Defenses

11. The State of Texas intervenes in this action as a party respondent 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.

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 A. Petitioner Is Not Eligible for the Remedy of Divorce Because
She Is Not a Party to a “Marriage” Under Texas Law.

12. Petitioner seeks a divorce on the ground of insupportability.

13. Under the Texas Family Code, divorce is a remedy available to a “party to a

marriage . . . if the marriage has become insupportable.” T EX. F AM. C ODE § 6.001.

14. Petitioner and Respondent are not parties to a “marriage” under Texas law.

The Texas Constitution defines “marriage” exclusively as “the union of one man and one

woman.” T EX. C ONST. art. I, § 32(a). And the Texas Family Code provides that “a marriage

between persons of the same sex . . . is contrary to the public policy of this state and is void

in this state.” T EX. F AM. C ODE § 6.204(b).

15. Because Petitioner is not a party to a “marriage” under Texas law, she cannot

bring an action for divorce or obtain that remedy under the Texas Family Code. Id. § 6.001.

B. The Court May Not Grant the Remedy of Divorce

to Petitioner Without Violating Texas Law.

16. Petitioner seeks the remedy of divorce predicated on a marriage between

herself and Respondent in Massachusetts.

17. The Texas Family Code provides that the State “may not give effect to a . . .

right or claim to any legal protection, benefit, or responsibility asserted as a result of a

marriage between persons of the same sex . . . in any other jurisdiction.” Id. § 6.204(c)(2).

Petition in Intervention of the State of Texas - Page 5

 18. Because the remedy of divorce is a “legal protection” or “benefit” of marriage,

the Court may not give effect to Petitioner’s claim for that remedy based on her marriage to

Respondent. Id.

C. Texas Law Provides Voidance as the Remedy for

Terminating the Marriage of Petitioner and Respondent.

19. The Texas Family Code provides that “a marriage between persons of the same

sex . . . is contrary to the public policy of this state and is void in this state.” T EX. F AM. C ODE

§ 6.204(b).

20. The Texas Family Code further provides that “[e]ither party to a marriage made

void by this chapter may sue to have the marriage declared void.” Id. § 6.307(a). Voidance

is a “suit for dissolution of marriage,” as that phrase is used throughout the Family Code.

21. Thus, voidance is the legally appropriate remedy for achieving the objectives

of the parties in this case. A decree that the marriage of Petitioner and Respondent is void

under Texas law will not affect the validity of the parties’ agreement regarding the division

of their property, or their agreement resolving the suit affecting the parent-child relationship.

D. Federal Law Affirms That Texas Courts Need Not

Recognize or Give Effect to the Marriage of
Petitioner and Respondent Under Texas Law.

22. No provision of the United States Constitution or other federal law preempts

or invalidates the provisions of the Texas Constitution and the Texas Family Code that

prohibit this Court from granting the remedy of divorce to Petitioner and Respondent.

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 23. To the contrary, the federal Defense of Marriage Act (DOMA) specifically

protects the rights of States to refuse to recognize or give effect to marriages between persons

of the same sex under the laws of other jurisdictions:

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.

28 U.S.C. § 1738C. See also Littleton v. Prange, 9 S.W.3d 223, 226 (Tex. App.—San

Antonio 1999, pet. denied) (noting that, under DOMA, “even if one state were to recognize

same-sex marriages it would not need to be recognized in any other state, and probably

would not be”).

24. The Full Faith and Credit Clause of the United States Constitution, U.S.

C ONST. art. IV, § 1, does not require Texas courts to recognize or give legal effect to

marriages between persons of the same sex under the laws of other jurisdictions. The Full

Faith and Credit Clause expressly gives Congress the power to “prescribe . . . the Effect” of

a State’s acts and records in another State. Id. As noted, Congress has done so by enacting

DOMA. 28 U.S.C. § 1738C.

IV. Intervenor’s Interest

25. The State of Texas intervenes in this action under Texas Rule of Civil

Procedure 60. T EX. R. C IV. P. 60.

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 26. “Rule 60 . . . provides . . . that any party may intervene” in litigation in which

they have a sufficient interest. Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex. 1982). “A

party has a justiciable interest in a lawsuit, and thus a right to intervene, when his interests

will be affected by the litigation.” Jabri v. Alsayyed, 145 S.W.3d 660, 672 (Tex.

App.—Houston [14th Dist.] 2004, no pet.) (citing Law Offices of Windle Turley, P.C. v.

Ghiasinejad, 109 S.W.3d 68, 71 (Tex. App.—Fort Worth 2003, no pet.)).

27. The parties to the Original Petition for Divorce have presented to date no basis

on which this Court could grant the Original Petition for Divorce—except by invalidating

the Texas Constitution, the Texas Family Code, and the federal Defense of Marriage Act.

Indeed, Respondent Sabina Daly has expressly acknowledged that voidance, not divorce, is

the proper remedy under Texas law under these circumstances. The State of Texas therefore

intervenes in this action in order to defend Texas and federal law against this apparent

constitutional attack.

28. The State of Texas has an interest in defending the will of the people of Texas

as manifested through the constitutional amendment and legislative processes. The Attorney

General has intervened in litigation in numerous instances on behalf of the State of Texas to

defend the constitutionality of its laws. See, e.g., Wilson v. Andrews, 10 S.W.3d 663, 666

(Tex. 1999) (“The Attorney General intervened to defend [Texas Local Government Code

§143.057(d)]’s constitutionality.”); Corpus Christi People’s Baptist Church, Inc. v. Nueces

County Appraisal Dist., 904 S.W.2d 621, 624 (Tex. 1995) (“The Attorney General intervened

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for the limited purpose of defending the constitutionality of section 11.433 [of the Texas Tax

Code].”); Davis v. May, 135 S.W.3d 747, 748 (Tex. App.—San Antonio 2003, pet. denied)

(“The Attorney General of Texas intervened to address the constitutionality of section

711.041 [of the Texas Health and Safety Code] and to represent the rights of the members

of the general public who were related to the decedents.”). The Attorney General intervenes

in this case on behalf of the State of Texas for the same purpose.

V. Prayer

29. For these reasons, the State of Texas respectfully requests that this Court:

a. Dismiss the Original Petition for Divorce; and

b. Grant all other relief this Court deems appropriate.

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 Respectfully submitted,

GREG ABBOTT
Attorney General of Texas

C. ANDREW WEBER
First Assistant Attorney General

DAVID S. MORALES
Deputy Attorney General for Civil Litigation

/s/ James C. Ho
JAMES C. HO
Solicitor General
State Bar No. 24052766

JAMES D. BLACKLOCK
Assistant Solicitor General
State Bar No. 24050296

O FFICE OF THE A TTORNEY G ENERAL

P.O. Box 12548
Austin, Texas 78711-2548
[Tel.] (512) 936-1700
[Fax] (512) 474-2697

C OUNSEL FOR THE S TATE OF T EXAS

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 C ERTIFICATE OF S ERVICE

I certify that I served a true and correct copy of the foregoing to the following persons

via certified mail, return receipt requested, on February 11, 2010:

Jennifer R. Cochran
T HE L AW O FFICE OF J ENNIFER R. C OCHRAN
13062 Hwy 290 West
Suite 201
Austin, Texas 78737
Ph: (512) 685-3584

Counsel for Petitioner

Robert B. Luther
Law Offices of Robert B. Luther, P.C.
919 Congress
Suite 450
Austin, Texas 78701
Ph: (512) 477-2323

Counsel for Respondent

/s/ James D. Blacklock

James D. Blacklock

Petition in Intervention of the State of Texas - Page 11