IN RE MARRIAGE OF J.B. AND H.B

< href="/case/beth-r-v-donna-m-35028407-2-25-2008#p504" class="raw-ref">853 N.Y.S.2d 501, 504, 506 (Sup.Ct. 2008) (relying on comity to deny defendant's motion to dismiss same-sex-divorce action); accord CM., 867 N.Y.S.2d at 889; see also Dickerson v. Thompson, 73 A.D.3d 52, 897 N.Y.S.2d 298, 299 (2010) (holding that New York courts have subject-matter jurisdiction to entertain suits to dissolve same-sex civil unions entered in another jurisdiction). But, as the court noted in Beth R., comity governs the recognition of out-of-state marriages only in the absence of "overriding legislation." 853 N.Y.S.2d at 504. We have just such overriding legislation in Texas, where the constitution expressly limits "marriage" to opposite-sex couples, section 6.204(b) of the family code declares same-sex marriages to be contrary to public policy, and section 6.204(c) denies legal effect to same-sex marriages even if contracted in another jurisdiction. Thus, the New York cases relied on by appellee are inapposite.

In contrast to the New York cases, courts in other jurisdictions have held that they lack jurisdiction to dissolve same-sex marriages or civil unions despite the validity of those unions in the jurisdictions where they were celebrated. See Rosengarten v. Downes, 71 Conn. App. 372. 802 A.2d 170, 184 (Conn.App.Ct.), appeal dism'd as moot, 261 Conn. 936, 806 A.2d 1066 (2002); Kern, 11 Pa. D. C.5th at 576; Chambers v. Ormiston, 935 A.2d 956, 958, 967 (R.I. 2007). Like the New York cases, these cases are of limited usefulness because Texas's marriage laws differ from those at issue in those cases.

F. Conclusion

We hold that Texas courts lack subject-matter jurisdiction to entertain a suit for divorce that is brought by a party to a same-sex marriage, even if the marriage was entered in another state that recognizes the validity of same-sex marriages. We must therefore proceed to consider whether the Texas laws compelling this result offend the Constitution.

V. TEXAS LAW DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT

The question presented is whether Texas law proscribing the adjudication of a petition for divorce by a party to a samesex marriage violates the Equal Protection Clause of the Fourteenth Amendment.

A. The Equal Protection Clause of the Fourteenth Amendment

The Equal Protection Clause provides, "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. It is "essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). On the other hand, "the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Consequently, disparate treatment of different but similarly situated groups does not automatically violate equal protection. Dallas Transit Sys. v. Mann, 750 S.W.2d 287, 291 (Tex.App.-Dallas 1988, no writ). To reconcile the equal-protection principle with practical necessity, the Court has developed differing levels of judicial scrutiny depending on the kind of classification at issue, which we analyze below. First, however, we address the State's contention that the equal-protection issue has already been squarely decided by the United States Supreme Court in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). Ultimately, we conclude that Texas law does not violate equal protection.

B. Baker v. Nelson

The State contends that appellee's equal-protection challenge is completely foreclosed by the United States Supreme Court's 1972 decision in Baker v. Nelson. That case began as a suit in Minnesota state court in which two men sued for the right to obtain a marriage license. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 185 (1971), dism'd, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). The petitioners argued that they were entitled to a marriage license under Minnesota law and, alternatively, that a law permitting only opposite-sex marriages denied them due process and equal protection. Id. at 185-86. The trial court denied relief, and the Minnesota Supreme Court affirmed. That court held that Minnesota law prohibited same-sex marriages and that this prohibition did not violate petitioners' due-process and equal-protection rights. Id. at 185-87. On further appeal to the United States Supreme Court, the Court dismissed the appeal "for want of a substantial federal question." 409 U.S. at 810, 93 S.Ct. 37. The State argues that this dismissal constituted a rejection of the petitioners' equal-protection claim on the merits. Because there is no Supreme Court precedent overruling Baker, the State concludes, we must reject appellee's equal-protection claim. Appellee makes several arguments in response. He distinguishes Baker because it involved an application for a marriage license, while his claim involves a request for a divorce. And he contends that Baker has been "fatally undermined" by subsequent cases.

Appellee also asserts that "neither the parties nor the Court in Baker had even conceived of Equal Protection or Due Process claims on the basis of sexual orientation." This statement is at odds with appellee's assertion two pages earlier in his brief that the Baker petitioner argued "that a state could not constitutionally refuse to marry same-sex couples under either the Due Process or Equal Protection clauses of the Fourteenth Amendment."

A summary disposition by the Supreme Court has very narrow precedential effect. Specifically, that precedential effect "can extend no farther than the precise issues presented and necessarily decided by" the Court's action. III. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (internal quotations omitted); see also Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam) (stating that summary dismissals "prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided" by the Court). Thus, a summary disposition has "considerably less precedential value than an opinion on the merits." III. State Bd. of Elections, 440 U.S. at 180-81, 99 S.Ct. 983.

The issue presented in this case is distinguishable from the precise issues presented to and decided by the Supreme Court in Baker. The jurisdictional statement in Baker posed three questions to the Court:

1. Whether appellee's refusal to sanctify appellants' marriage deprives appellants of their liberty to marry and of their property without due process of law under the Fourteenth Amendment.

2. Whether appellee's refusal, pursuant to Minnesota marriage statutes, to sanctify appellants' marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment.

3. Whether appellee's refusal to sanctify appellants' marriage deprives appellants of their right to privacy under the Ninth and Fourteenth Amendments.[ ]

In all three issues, the Baker appellants argued that the Constitution compelled Minnesota to grant them a marriage license and treat them as a married couple from then on. In the instant case, by contrast, appellee does not complain of Texas's refusal to recognize his marriage to H.B. on a going-forward basis. His complaint is that Texas law relegates him to a declaration of voidness, when a party to an opposite-sex marriage in otherwise similar circumstances would be entitled to a divorce.

Baker is certainly relevant because it reaffirms the states' preeminent role in the area of family law, and we accord Baker appropriate weight in our analysis of the equal-protection issue. But because Baker is distinguishable, we conclude that it does not control the disposition of the equal-protection issue presented in this case. Cf. Smelt v. Cnty. of Orange, 374 F.Supp.2d 861, 872-74 (C.D.Cal. 2005) (concluding Baker v. Nelson did not control outcome of constitutional challenge to federal DOMA), aff'd in part and vacated in part on other grounds, 447 F.3d 673 (9th Cir. 2006); In re Kandu, 315 B.R. 123, 138 (Bankr.W.D.Wash. 2004) (same). But see Wilson v. Ake, 354 F.Supp.2d 1298, 1304-05 (M.D.Fla. 2005) (concluding that Baker was binding in challenge to constitutionality of Florida statute prohibiting same-sex marriage).

C. The Standard: Strict Scrutiny or Rational Basis

An equal-protection challenge is examined under one of two tests: the strict-scrutiny test or the rational-basis test. City of Cleburne, 473 U.S. at 439-40, 105 S.Ct. 3249; Cannady v. State, 11 S.W.3d 205, 215 (Tex.Crim.App. 2000); Kiss v. State, 316 S.W.3d 665, 668-69 (Tex. App.-Dallas 2009, pet. ref'd). Appellee urges the former. Strict scrutiny applies if a law discriminates against a suspect class or interferes with a fundamental right. Kiss, 316 S.W.3d at 668-69; Dill v. Fowler, 255 S.W.3d 681, 683 (Tex.App.-Eastland 2008, no pet.). "[I]f a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end." Romer, 517 U.S. at 631, 116 S.Ct. 1620; accord Kiss, 316 S.W.3d at 668-69.

The Supreme Court has described a "suspect class" as one "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." Moss. Bd. of Ret. v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam) (internal quotations omitted) (holding that rational-basis test applied to mandatory police retirement age). Examples of recognized suspect classes are classes defined by race, alienage, and ancestry. Hookie v. State, 136 S.W.3d 671, 679 n. 9 (Tex.App.-Texarkana 2004, no pet.).

"[T]he Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes." Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); see also Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004) ("Neither the Supreme Court nor this court has recognized sexual orientation as a suspect classification. . . ."). The parties cite no authority from Texas's two highest courts on point, and we have found none. Many courts in other jurisdictions have addressed the issue and held that homosexuals are not a suspect class for equal-protection purposes. See, e.g., Citizens for Equal Prot, 455 F.3d at 866-67; Lofton v. Sec'y of Dep't of Children Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Smelt, 374 F.Supp.2d at 875; see also Conaway v. Deane, 401 Md. 219, 932 A.2d 571, 606 (2007) (analyzing claims under Maryland Constitution).

Appellee poses several arguments in support of his position that homosexuals should be designated a suspect class. Appellee, citing Bowen v. Gilliard, 483 U.S. 587, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1987), asserts that homosexuals "have long been persecuted." In Bowen, the Court, applying the rational-basis test, held that AFDC child support attribution requirements did not violate due process or equal protection. Id. at 598-603, 107 S.Ct. 3008. Bowen is significantly removed from, and does not support, the proposition for which it is cited. Next, appellee, citing Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), asserts that "for centuries there have been powerful voices to condemn homosexual conduct as immoral." See id. at 571, 123 S.Ct. 2472. In Lawrence, the Court held that a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional, in violation of the Due Process Clause of the Fourteenth Amendment. Id. at 578-79, 123 S.Ct. 2472. According to the Court, "there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter." Id. at 568, 123 S.Ct. 2472 (emphasis added). Lawrence does not support appellee's position that homosexuals should be designated a suspect class.

Appellee has not shown that Texas generally excludes homosexuals from the protections of its laws. In fact, appellee pointed out in the trial court that persons in same-sex relationships appear to be eligible to seek protective orders from domestic violence, thus undermining his own position. See TEX. FAM. CODE ANN. § 82.002(b) (Vernon 2008) (permitting an adult member of a "dating relationship" to seek a protective order against violence, without regard to the sex of the members of the relationship).

Appellee argues that homosexuals are a politically powerless minority. This contention is presented without relevant authority or analysis, and we therefore reject it. We are aware of significant authority to the contrary. See Romer, 517 U.S. at 652, 116 S.Ct. 1620 (Scalia, J., dissenting) (noting that forty-six percent of voters opposed Colorado's Amendment 2, even though homosexuals composed no more than four percent of the population); Strauss v. Horton, 46 Cal.4th 364, 93 Cal. Rptr.3d 591, 207 P.3d 48, 59, 68 (2009) (noting that over forty-seven percent of voters opposed referendum limiting marriage to opposite-sex couples). Like the Maryland court in Conaway, "we are not persuaded that gay, lesbian, and bisexual persons are so politically powerless that they are entitled to extraordinary protection from the majoritarian political process." 932 A.2d at 611 (internal quotations omitted).

Appellee also argues that homosexuals are a suspect class because they bear "obvious, immutable, or distinguishing characteristics that define them as a discrete group." However, appellee does not identify or attempt to suggest the exact nature of such characteristics. Again, this contention is presented without relevant authority or analysis, and we therefore reject it.

Citing City of Cleburne, appellee asserts that strict scrutiny is justified because sexual orientation has no bearing on a person's ability to "perform or contribute to society." In City of Cleburne, the Supreme Court explained that legal classifications based on gender and illegitimacy call for heightened scrutiny because those attributes generally do not affect a person's ability to contribute to society, thus making such classifications inherently suspect. 473 U.S. at 440-41, 105 S.Ct. 3249. In the same opinion, however, the Court observed that rational-basis scrutiny is generally appropriate when the "individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement." Id. at 441, 105 S.Ct. 3249. The persons singled out and favored by Texas's marriage laws, namely opposite-sex couples, have such a distinguishing and relevant characteristic: the natural ability to procreate. The state's interest in "fostering relationships that will serve children best" is a legitimate interest within the state's authority to regulate. Hernandez, 855 N.E.2d at 11; see also Conaway, 932 A.2d at 630 ("[S]afeguarding an environment most conducive to the stable propagation and continuance of the human race is a legitimate government interest."). Thus, although a person's sexual orientation does not affect his or her ability to contribute to society in general, it does bear on whether he or she will enter a relationship that is naturally open to procreation and thus trigger the state's legitimate interest in child-rearing. See Hernandez, 855 N.E.2d at 11 (concluding that rational-basis scrutiny was appropriate in part because same-sex relationships "cannot lead to the birth of children"). Accordingly, City of Cleburne does not support appellee's contention that homosexuals are a suspect class.

In City of Cleburne, the Court held that mentally retarded persons are not a suspect class, and that a zoning ordinance requiring a special use permit for homes for the mentally retarded failed the rational-basis test. 473 U.S. at 442-50, 105 S.Ct. 3249.

We conclude that homosexuals are not a suspect class, that persons who choose to marry persons of the same sex are not a suspect class, and that the Texas law at issue in this case does not discriminate against a suspect class.

Fundamental rights are rights that are "deeply rooted in this Nation's history and tradition" and are "implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal quotations omitted). In order to ascertain whether a claimed right is indeed fundamental, we must engage in a "careful description of the asserted fundamental liberty interest." Id. at 721, 117 S.Ct. 2258 (internal quotations omitted). We do not accept uncritically the description of the right proffered by the party asserting the right. In Glucksberg, for instance, the respondents described the claimed right as the "liberty to choose how to die" and the right to "control of one's final days," but the Supreme Court examined the statute under challenge and concluded that the asserted right was more precisely described as "a right to commit suicide which itself includes a right to assistance in doing so." Id. at 722, 723, 117 S.Ct. 2258. Accordingly, we must first define the right asserted by appellee.

Although Glucksberg is a due-process case rather than an equal-protection case, the test for ascertaining whether a claimed right is a "fundamental" right that triggers strict scrutiny is the same under both clauses. See Lofton, 358 F.3d at 811-18 (performing single fundamental-right analysis to dispose of both due-process and equal-protection challenges); see also 2 RONALD D. ROTUNDA JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE §§ 15.4(a), 15.7 (4th ed. 2007) (discussing law of fundamental rights).

Appellee characterizes the rights in question as the "freedom to marry a person of one's own choosing" and the concomitant right to end such a marriage with a divorce. He points out that the Supreme Court has indicated that the right to marry is a fundamental right. See Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (describing marriage as a "fundamental freedom" that may "not be restricted by invidious racial discriminations"); accord Glucksberg, 521 U.S. at 719, 117 S.Ct. 2258 (citing Loving as establishing fundamental right to marry); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) ("Marriage and procreation are fundamental to the very existence and survival of the race."). But Loving involved a marriage between a man and woman. The Loving opinion's discussion of the right to marry does not embrace the broad formulation proposed by appellee. See Evans v. Romer, 854 P.2d 1270, 1301 (Colo. 1993) (Erickson, J., dissenting) ("[R]ather than expressing a willingness to extrapolate new fundamental rights based on selective language from prior Supreme Court decisions, we should exercise caution in identifying and embracing previously unrecognized fundamental rights."). Many courts in other jurisdictions have confronted similar challenges to the federal DOMA and similar state laws, and they have generally concluded that the right being claimed should be defined and analyzed precisely as the right to marry a person of the same sex, not as the right to marry whomever one chooses. See, e.g., Smelt, 374 F.Supp.2d at 877-79; In re Kandu, 315 B.R. at 138-41; Conaway, 932 A.2d at 616-24; Hernandez, 855 N.E.2d at 9-10; Andersen v. King Cnty., 158 Wash.2d 1, 138 P.3d 963, 976-79 (2006) (plurality op.). The Conaway court's thorough discussion of the question demonstrates that the Supreme Court's right-to-marry jurisprudence has always involved opposite-sex couples and that the Court has always OF J.B. AND H.B. justified the fundamental nature of the right to marry, at least in part, by reference to procreation. Conaway, 932 A.2d at 619-21. We agree with that analysis and conclude that the precise rights claimed by appellee are the right to marry a person of the same sex and the concomitant right to divorce.

"[T]he limitation of marriage to one man and one woman preserves both its structure and its historic purposes." Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 992 n. 13 (2003) (Cordy, J., dissenting). Accurately identifying and analyzing appellee's claimed right — the purported "right to marry a person of the same sex" — exposes the serious consequences such a position portends: the redefinition of the fundamental institution of marriage. And, of course, only by asserting that marriage includes the union of two persons of the same sex can appellee advance his claim of discrimination. A fatal flaw in this position is that it assumes the truth of the proposition to be proved.

In legal analysis, as in mathematics, it is fundamentally erroneous to assume the truth of the very thing to be proved. Goodridge, 798 N.E.2d at 984 n. 2 (Cordy, J., dissenting).

Having concluded that the claimed right in question is properly defined as the right to marry a person of the same sex, we consider whether that right is "`deeply rooted in this Nation's history and tradition.'" Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 (quoting Moore v. E. Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality op.)). Plainly, it is not. Until 2003, no state recognized same-sex marriages. Smelt, 374 F.Supp.2d at 878. Congress and most states have adopted legislation or constitutional amendments explicitly limiting the institution of marriage to opposite-sex unions. Conaway, 932 A.2d at 627. We agree with the numerous courts that have held that the right to legal recognition of a same-sex marriage is not a fundamental right for equal-protection purposes. See, e.g., Smelt, 374 F.Supp.2d at 879; Wilson, 354 F.Supp.2d at 1307; In re Kandu, 315 B.R. at 140-41; Standhardt v. Superior Court, 206 Ariz. 276, 77 P.3d 451, 458-60 (Ariz.Ct.App. 2003); see also Conaway, 932 A.2d at 629 (analyzing claims under Maryland Constitution); Hernandez, 855 N.E.2d at 10 (analyzing claims under New York Constitution); Andersen, 138 P.3d at 979 (analyzing claims under Washington Constitution and noting that "no appellate court applying a federal constitutional analysis" has found a fundamental right to marry a person of the same sex); see also Goodridge, 798 N.E.2d at 987 (Cordy, J., dissenting) ("While the institution of marriage is deeply rooted in the history and traditions of our country and our State, the right to marry someone of the same sex is not."). But see Perry v. Schwarzenegger, 704 F.Supp.2d 921, 993-94 (N.D.Cal. 2010) (holding that same-sex couples were seeking to exercise the fundamental right to marry), appeal docketed, No. 10-16696, 2010 WL 3212786 (9th Cir. Aug. 5, 2010). We conclude that the legislation in question does not interfere with a fundamental right.

Because Texas's laws stripping the courts of jurisdiction to adjudicate claims for same-sex divorce do not discriminate against a suspect class or burden a fundamental right, we evaluate the law under the rational-basis test.

D. Application of Rational-Basis Standard

The link between the classification adopted and the object to be attained affords substance to the Equal Protection Clause. Romer, 517 U.S. at 632, 116 S.Ct. 1620. As emphasized by the Supreme Court, "[i]n the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous." Id. The link — or rational relationship — ensures that the classification is not drawn with the express purpose of disadvantaging any group burdened by the law. Id., at 633, 116 S.Ct. 1620. In short, "a law must bear a rational relationship to a legitimate governmental purpose." Id. at 635, 116 S.Ct. 1620.

Under the rational-basis test, a statute enjoys a strong presumption of validity, and the statute must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Heller v. Doe ex rel. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); In re G.C., 66 S.W.3d 517, 524 (Tex.App.-Fort Worth 2002, no pet.). "[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (per curiam). The party attacking the rationality of the legislative classification bears the burden of negating every conceivable basis that might support it. Fed. Commc'ns Comm'n v. Beach Commc'ns, Inc., 508 U.S. 307, 314-15, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Moreover, the classification adopted by the legislature need not be perfectly tailored to its purpose in order to pass constitutional muster:

[A] State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some reasonable basis, it does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality. The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

Kiss, 316 S.W.3d at 668 (quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)). Finally, states have traditionally enjoyed wide latitude in prescribing "the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved." Citizens for Equal Prot, 455 F.3d at 867 (quoting Pennoyer v. Neff, 95 U.S. 714, 734-35, 24 L.Ed. 565 (1878)). "In this constitutional environment, rational-basis review must be particularly deferential." Id.

Several courts have concluded that laws limiting the benefits of marriage to opposite-sex couples do not offend equal protection. Id. at 868-69; Smelt, 374 F.Supp.2d at 879-80; Wilson, 354 F.Supp.2d at 1308-09; Standhardt, 77 P.3d at 465; see also Morrison v. Sadler, 821 N.E.2d 15, 21-31 (Ind.Ct.App. 2005) (plurality op.) (analyzing equal-protection claim under Indiana Constitution); Conaway, 932 A.2d at 634 (analyzing equal-protection claim under Maryland Constitution); Hernandez, 855 N.E.2d at 12 (analyzing equal-protection claim under New York Constitution); Andersen, 138 P.3d at 985 (analyzing equal-protection claim under Washington Constitution). But see Perry, 704 F.Supp.2d at 1003-04 (reaching opposite result). We agree with those courts that have found no equal-protection violation. The state has a legitimate interest in promoting the raising of children in the optimal familial setting. It is reasonable for the state to conclude that the optimal familial setting for the raising of children is the household headed by an opposite-sex couple. Andersen, 138 P.3d at 983; see also Goodridge, 798 N.E.2d at 999-1000 (Cordy, J., dissenting) ("[T]he Legislature could rationally conclude that a family environment with married, opposite-sex parents remains the optimal social structure in which to bear children . . . .").

Supporters of the amendment that became article I, section 32 of the Texas Constitution argued, "A traditional marriage consisting of a man and a woman is the basis for a healthy, successful, stable environment for children. It is the surest way for a family to enjoy good health, avoid poverty, and contribute to their community." House Comm. on State Affairs, Bill Analysis, Tex. H.J.R. 6, 79th Leg., R.S. (2005).

We next consider whether Texas's marriage laws are rationally related to the goal of promoting the raising of children in households headed by opposite-sex couples. We conclude that they are. Because only relationships between opposite-sex couples can naturally produce children, it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage. See Standhardt, 77 P.3d at 462-63 ("The State could reasonably decide that by encouraging opposite-sex couples to marry, thereby assuming legal and financial obligations, the children born from such relationships will have better opportunities to be nurtured and raised by two parents within long-term, committed relationships, which society has traditionally viewed as advantageous for children."); Andersen, 138 P.3d at 982 ("[N]o other relationship has the potential to create, without third party involvement, a child biologically related to both parents, and the legislature rationally could decide to limit legal rights and obligations of marriage to opposite-sex couples."). The legislature could reasonably conclude that the institution of civil marriage as it has existed in this country from the beginning has successfully provided this desirable social structure and should be preserved. See Goodridge, 798 N.E.2d at 998 (Cordy, J., dissenting). The state also could have rationally concluded that children are benefited by being exposed to and influenced by the beneficial and distinguishing attributes a man and a woman individually and collectively contribute to the relationship. See Hernandez, 855 N.E.2d at 7 ("The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like."); Lynn D. Wardle, Essay, " Multiply and Replenish": Considering Same-Sex Marriage in Light of State Interests in Marital Pro creation, 24 HARV. J.L. PUB. POL'Y 771, 780 (2001) ("Heterosexual marriage reasonably may be assumed to provide the most advantageous environment in which children can be reared, providing profound benefits of dual gender parenting to model intergender relations and show children how to relate to persons of their own and the opposite gender.").

The Texas Constitution and the Texas Family Code single out one particular social unit for purposes of defining a legally valid marriage in Texas: opposite-sex couples. Appellee asserts that because Texas law thus both defines and restricts formal recognition of the institution of marriage to opposite-sex couples, it thereby discriminates against and denigrates same-sex couples. We disagree. Texas law recognizes that only opposite-sex couples are naturally capable of producing children, and it gives participants in that kind of relationship the option of legal formalization, with the legitimate legislative goal of encouraging such formalization and thereby promoting the well-being of children. The state' has decided that the general welfare does not require extending the same option to the members of other social units. Texas law does not recognize samesex relationships as valid marriages. Texas law also does not recognize relationships that involve more than one man and one woman, such as bigamous and polygamous relationships (both of which involve at least one person of the opposite sex), as valid marriages. See TEX. FAM. CODE ANN. § 6.202 (voiding marriage during existence of prior marriage); TEX. PENAL CODE ANN. § 25.01 (Vernon Supp. 2009) (criminalizing bigamy). Appellee has not shown that the legislative history of the 2005 constitutional amendment defining marriage in Texas as limited to opposite-sex couples reflects any animus against same-sex couples. We cannot conclude that the State's justification for its marriage laws lacks a rational relationship to legitimate state interests.

Appellee asserts there is a sharp distinction between the right to marriage and the right to divorce. While each is different, the difference does not advance appellee's position. The laws specific to proceedings for divorce in Texas are an integral part of the State's overall scheme to give special protections and benefits to married couples. Divorce is a mechanism for determining and resolving the legal obligations of the parties arising from or affected by their marriage. The State may reasonably conclude that provisions must be made for the peaceable resolution of irreconcilable disputes and the legal dissolution of the marital bond when its continuance would hinder rather than promote the goals of the marriage laws.

Appellee argues that a voidance action is not an adequate substitute for a divorce action in his case. He contends that he might not be able to pursue an action to declare his marriage void under section 6.307 because the State contends that he is not a party to a "marriage" at all. He purports to fear that the State would intervene in a suit for voidness and claim that the trial court lacks jurisdiction of that action as well. This argument is without merit. Section 6.307 provides, "Either party to a marriage made void by this chapter may sue to have the marriage declared void[.]" TEX. FAM. CODE ANN. § 6.307(a). Same-sex marriages are made void by "this chapter," i.e., by section 6.204(b) of chapter 6 of the family code. Thus, appellee could bring a suit to declare his marriage to H.B. void.

Appellee argues that certain forms of relief, such as spousal maintenance, are available in divorce actions and not in voidance actions. He also argues that other benefits, like the spousal-communication privilege and the community-property laws, will not be available to him if he pursues a voidance action. These arguments are merely policy arguments that it would be better if the state gave same-sex couples the same marriage-related rights as opposite-sex couples. We have already concluded that the state may constitutionally treat opposite-sex couples differently from all other social units for purposes of marriage and divorce laws. Appellee's arguments that he should be afforded rights such as the spousal-communications privilege and community-property rights must be addressed to the Texas Legislature.

Appellee argues that a declaration of voidness is not an adequate substitute for a divorce decree because other jurisdictions might not recognize a declaration of voidness as terminating his marriage to H.B. He points out that there is a lack of precedent showing that a declaration of voidness would be given full faith and credit by other states. He also argues that the wording of section 6.204(b) implies that a Texas declaration of voidness would have no effect outside of Texas because section 6.204(b) provides that a same-sex marriage is "void in this state." Id. § 6.204(b). The other statutes in the void-marriage subchapter of the family code provide that the defined marriages are simply `Void." See, e.g., id. § 6.201 ("A marriage is void if one party to the marriage is related to the other [by specified blood or adoptive relationships]."). We disagree with appellee's contention. Section 6.307 is the provision that confers jurisdiction on the courts to declare any marriage void, and it does not contain the words "in this state" that appellee finds problematic in section 6.204(b). Under section 6.307, "[e]ither party to a marriage made void by this chapter may sue to have the marriage declared void" — not "void in this state." See id. § 6.307(a). We reject appellee's contention that a declaration of voidness in his case would not be effective in other jurisdictions as well. We also note, as the State points out, that in this case a decree of divorce would actually create greater uncertainty than a declaration of voidness, in light of existing Texas authority that a divorce decree would be void and subject to collateral attack. See Mireles, 2009 WL 884815, at *2 (affirming trial court's judgment that sustained collateral attack on same-sex divorce decree).

Citing a number of other sections of the family code relating to void marriages, appellee contends that Texas law treating "same-sex marriages" as void stigmatizes him. He argues that by declaring samesex marriages void, Texas has placed them in the "odious company" of unions that have traditionally been deemed "criminal almost by their very nature," such as incestuous and bigamous marriages. The "guilt by association" caused by this juxta-position, appellee contends, stigmatizes same-sex couples.

Section 6.204 regarding same-sex marriages constitutes a separate and independent provision within the family code. It does not act in concert with the other provisions enumerated by appellee dealing with void marriages, all of which involve significantly different situations. Appellee's criticism thus attacks the location of this provision amid other provisions in the code that address other void marriages. Appellee's strained comparison based upon the placement of section 6.204 within the family code not only misconstrues the meaning of section 6.204 but also suggests an effort by appellee to transform his social situation into one of self-imposed ignominy.

Appellee mistakenly refers to section 6.302 as voiding consanguineous marriages; we presume he intended to refer to section 6.201. He also erroneously refers to section 6.205 as voiding "quasi-incestuous" marriages. Section 6.205 addresses marriage to minors younger than 16; we presume he intended to refer to section 6.206, which voids marriage to a stepchild or stepparent.

Appellee relies on Romer and Lawrence. In Lawrence, the Supreme Court held that statutes criminalizing homosexual sodomy violate the Due Process Clause. 539 U.S. at 578-79, 123 S.Ct. 2472. In Romer, the Court held that equal protection was violated by a state constitutional amendment forbidding the state or any of its subdivisions from giving protected status to any group defined by homosexual or bisexual orientation or activity. 517 U.S. at 635-36, 116 S.Ct. 1620.

The Court struck down the constitutional amendment at issue in Romer because it was "inexplicable by anything but animus toward the class it affects" and the Court could not conceive of a single proper legislative end advanced by the amendment. Id. at 632, 635, 116 S.Ct. 1620. Texas's laws governing marriage and divorce, by contrast, are rationally related to the legitimate state interest in fostering the best possible environment for procreation and child-raising. Appellee has not demonstrated that the laws at issue are explicable only by class-based animus. Lawrence decided that criminal laws against homosexual sodomy served no legitimate state interest that could justify the state's "intrusion into the personal and private life of the individual." 539 U.S. at 578, 123 S.Ct. 2472. But the Lawrence Court expressly recognized that the case did not involve "whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Id. Texas's marriage and divorce laws serve legitimate state interests. See id. at 585, 123 S.Ct. 2472 (O'Connor, J., concurring) (identifying "preserving the traditional institution of marriage" as a legitimate state interest). In sum, Romer and Lawrence are distinguishable and offer appellee's position no support. Moreover, other courts have rejected similar arguments that statutes limiting marriage to opposite-sex couples are animus-based. See, e.g., Citizens for Equal Prot., 455 F.3d at 868 (concluding that Nebraska's law limiting marriage to opposite-sex couples was not "inexplicable by anything but animus towards same-sex couples") (internal quotations omitted); Standhardt, 77 P.3d at 465 (rejecting contention that Arizona's similar law was "inexplicable by anything but animus") (internal quotations omitted); Andersen, 138 P.3d at 980-81 (rejecting contention that Washington's similar law was adopted solely because of anti-homosexual sentiment).

Appellee's bald assertion regarding section 6.204's supposed "guilt by association," without any legal analysis or precedent supporting it, is without merit. We conclude that the Texas laws in question do not unconstitutionally stigmatize appellee.

E. Conclusion

The trial court erred by ruling that article I, section 32(a) of the Texas Constitution and section 6.204 of the Texas Family Code violate the Equal Protection Clause of the Fourteenth Amendment. Texas's laws providing that its courts have no subject-matter jurisdiction to adjudicate a petition for divorce by a party to a same-sex marriage do not violate the Equal Protection Clause of the Fourteenth Amendment, a provision never before construed as a charter for restructuring the traditional institution of marriage by judicial legislation.

Cf. Baker, 191 N.W.2d at 186 ("The due process clause of the Fourteenth Amendment is not a charter for restructuring [the historic institution of marriage] by judicial legislation.")

VI. DISPOSITION

We conditionally grant the State's petition for writ of mandamus and direct the trial court to vacate its order to the extent it strikes the State's petition in intervention. The writ will issue only if the trial court fails to immediately comply.

We vacate the trial court's second order denying the State's plea to the jurisdiction. We reverse the trial court's first order to the extent it denies the State's plea to the jurisdiction, and we remand the case to the trial court with instructions to dismiss for lack of subject-matter jurisdiction.

SUPPLEMENTAL OPINION ON MOTION FOR EN BANC RECONSIDERATION

Appellee J.B. has filed a motion for en banc reconsideration. The motion is denied.

In his motion, Appellee asserts that we erred by ignoring his arguments on appeal that article I, section 32(a) of the Texas Constitution and section 6.204 of the Texas Family Code violate the Due Process Clause, the First Amendment right to free association, and the constitutional right to travel. In its amended order denying the State's plea to the jurisdiction, the trial court ruled that section 6.204 of the family code violates all of those rights. But, as noted in our original opinion, that order was a legal nullity because it was signed during the automatic stay imposed by section 51.014(b) of the civil practice and remedies code.

Appellee did not present his constitutional challenges based on due process, the right to free association, and the right to travel to the trial court, and the State had no opportunity to respond to them in that court. We will not consider grounds for affirmance that were not presented to the trial court and to which the other side had no opportunity to respond. Victoria Gardens of Frisco v. Walrath, 257 S.W.3d 284, 289-90 (Tex.App.-Dallas 2008, pet. denied); see also Guar. Cnty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986) (per curiam); cf. City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986) (court of appeals should not have addressed appellant's constitutional challenge that was never presented to the trial court).

Appellee's motion for en banc reconsideration is denied.