The most talked about court case on the campaign trail this year is not the federal Obamacare decision or even the Obergefell case in which 5 lawyers on the U.S. Supreme Court pretended to be super-legislators with the power to rewrite the marriage laws in all 50 states.
Even more than those two cases which exemplify federal overreach and abuse of separation of powers, there is a state court decision being talked about at judicial candidate forums across Texas.
This last summer, the Texas Supreme Court, by a bare majority of 5, handed down an historic decision; the repercussions of which will help determine the course of this year’s election. This case, Naylor v. Texas, has placed emphasis on the importance of electing judges who will protect the rule of law, and uphold separation of powers.
Before we dive into to the details of the case, the majority opinion, and the dissenting opinions, it is important to keep the bottom line results in mind:
The decision in this case violated the Texas Constitutional definition of marriage (which had been adopted by the people of Texas with over 76% of the vote) and recognized homosexual marriage, while also violating the jurisdictional limitations placed on the court by the people of Texas (through the state Constitution). Some claim the decision was required because of technicalities, yet Justice Willet slices through this ruse in his well-reasoned dissenting opinion showing the court could have easily defended our constitution and followed the law at the same time, rather than giving lip service to “judicial restraint” while handing down a decision with the practical effect of rank judicial activism changing the Texas Constitution and overruling the legislature and the votes of millions of Texans.
A little background:
In 2004, Anqelique Naylor and Sabina Daly married in Massachusetts. The two women later moved to Texas, where they were raising a child and operating a business together. So when Naylor filed for divorce in Travis County, she hoped the court would recognize her marriage and settle the suit accordingly. The trial court granted the divorce, even though Daly herself contested that the court did not have the jurisdiction to do so. She argued that because Texas could not recognize same-sex marriage, the court did not have the power to grant her divorce.
She was right.
But she changed her mind and joined with Naylor and the district judge to rush through the divorce before the Attorney General could intervene to defend the Texas Constitution. It was this manipulation of dates and deadlines upon which the Texas Supreme Court based a technical decision to uphold the divorce. Of the nine justices on the bench, five – Justices Brown, Hecht, Johnson, Boyd, and Paul Green – affirmed the decision of the court of appeals to grant the divorce. Three dissented – Justices Devine, Willett, and Guzman – while the remaining judge – Justice Lehrmann – did not participate in the decision.
The majority ruled, and Naylor v. Texas was settled. Anqelique Naylor and Sabina Daly were granted their divorce. Gay rights activists hailed the decision as a victory.
One week later, the U.S. Supreme Court followed the lead of the Texas court in favor of homosexual marriage.
While the majority based their decision on technicalities, the dissenters gave examples of the court’s exceptions to these technicalities in the past and pointed out many logical and legal reasons the court should have defended the Constitution and not violated the court’s jurisdiction. You can read the majority opinion here and the dissenting opinions here (Willett) and here (Devine).
A few key points from Justice Willet’s dissent:
“I would allow the attorney general to make his argument that Texas law imposes an absolute jurisdictional constraint and constitutionally prohibits a judge not only from performing a same-sex marriage but also from dissolving one.”
“In my view, the State’s chief legal officer—sworn to ‘preserve, protect, and defend’ Texas law—should in fact be permitted to preserve, protect, and defend it.”
“The State’s ability to raise the issue should not turn on its ability to monitor divorce filings in every clerk’s office in the State in order to intervene promptly.”
Conservative leaders across the state have stepped forward to condemn the court’s ruling. Governor Greg Abbott, who formerly served as Texas’ attorney general and also as a Texas Supreme Court Justice, released a statement criticizing the court’s decision. He stated it was “disappointing and legally incorrect,” and that the court “mistakenly relied on a technicality to allow this divorce to proceed.” In other words, the court should have prioritized absolute adherence to the Texas Constitution.
Kelly Shackelford, David Barton, Dr. James Dobson, Mat Staver, and Jonathan Saenz have all also stepped forward to side with the dissenting justices.
Rick Green stands on the side of these constitutionally conservative champions, while his opponent must defend his vote and public stance granting the homosexual divorce, and overruling both the will of the people and the rule of law. Whether the repercussions were intentional or just poor judgment, the five justices recognized and validated same-sex marriage in Texas. They ignored separation of powers, and wavered when constitutionality was in question.
With a flood a religious liberty and parental rights cases due to come through the court system in the coming years, it is vitally important that Texans elect judges who will defend the Constitution and submit to the rule of law. Separation of powers establishes and limits the jurisdiction of each branch. The judiciary’s job is to apply the law to the parties before it, not ignore the constitution and the law, or make the law up as they go.
Now, more than ever before, we need a Constitutional Watchdog on the Texas Supreme Court.