Last month, Mitchell Katine spent hours waiting in the cold and the rain so he could get inside the U.S. Supreme Court to watch two historic arguments in cases that could determine how the federal government treats the unions of same-sex couples.
Katine, a partner in Houston’s Katine & Nechman, had made a similar trip 10 years earlier, as part of a team of lawyers who successfully argued Lawrence v. Texas. The high court’s 6-3 decision in Lawrence on June 26, 2003, overturned Texas’ sodomy statute and was the last watershed legal moment for gay rights in the United States.
Now that he’s back home, Katine says he keeps hearing the same question from clients and friends.
"A lot of people are asking me, including my children," Katine says. "And they want to know when Daddy and Papi can get married."
It used to be a simple answer, Katine says: Same-sex couples in Texas can travel to other states to get married. But that union is meaningless inside the Lone Star State, because in 2003 the Legislature passed the Defense of Marriage Act (Texas DOMA), which specifies that the state will not recognize same-sex marriages or civil unions.
But now Katine’s answer is a bit more complicated, he says, based on what he saw during arguments in United States v. Windsor. In Windsor, the plaintiff is attacking the 1996 federal DOMA (which the Texas act closely follows) — specifically, §3, which defines marriage as "a legal union between one man and one woman as husband and wife."
Katine believes the high court will not let that provision of the federal DOMA stand, because the language prevents gay couples from receiving a vast array of federal benefits, including impacting the tax rates they pay.
"Here in Texas, what I think would happen is: If my partner and I wanted to go to a state that would allow marriage without residency requirements, we could go get married there and come back to Texas, and suddenly we would have other 1,000 additional federal benefits that apply to people who are spouses," Katine says.
Despite that optimism that the high court will find §3 of the federal DOMA unconstitutional, four family lawyers say they doubt such a ruling would have any impact on the Texas Family Code or on the ability for same-sex couples to get married inside the state.
Michelle May O’Neil, a Dallas family lawyer who often represents gay clients, says whatever the high court does is unlikely to affect the most common reason a client seeks her services: to get a divorce.
"The problem is: You have to have jurisdiction to get divorced in Texas. And under [the federal] DOMA — §2 that they have not challenged — says Texas does not have to give full faith and credit to the marriage laws of other states. So, therefore, in Texas we can’t divorce somebody who was married in another state if Texas doesn’t recognize that form of marriage," O’Neil says. "All they are challenging is §3, which prevents the federal government from recognizing that form or marriage. But since they did not challenge §2, that will likely stand."
"Our hands are tied. There is nothing that we can do for them. We can do domestic partners for them, and we can make custody arrangements for them. But we cannot dissolve a marriage from another state," she says.
One busy metropolitan Texas family court judge who declines to be identified says he’s seeing more and more gay litigants in his court with child-custody disputes — one of the only matters family court judges can decide for same-sex couples.
The question of how family courts treat same-sex couples becomes much different if the high court strikes down DOMA under the equal protection clause of the 14th Amendment, the judge says.
"The question that lawyers here in Texas are contemplating is: What if the Supreme Court comes out and says same-sex couples are entitled to equal protection?" the judge asks. "If people legally got married in another state and come to Texas for six months, I think we’re going to have to grant them a divorce. But I don’t think many judges would do that, absent a state statute that directs or requires us to do that."
Currently, the Texas Supreme Court is considering the appeal of two cases involving same-sex couples who were married in Massachusetts and are trying to get divorced in Texas. In both cases, In The Matter of the Marriage of J.B. and H.B. v. State of Texas and State of Texas v. Angelique S. Naylor and Sabina Daly, intermediate appellate courts ruled in 2010 that Texas Family Code §6.204 deprives Texas trial courts of subject matter jurisdiction to hear same-sex divorces.
"They’ve just been sitting on them and are definitely waiting for what the U.S. Supreme Court does," say Jason Steed, a Round Rock solo who represents one partner in J.B. and one in Naylor.
The best hope for his clients to avail themselves of Texas courts to obtain a divorce is for the U.S. Supreme Court to find that the federal DOMA denies gay couples equal protection, Steed says.
"That would be the best help for gay rights and for anyone hoping to get the right to a same-sex marriage. But what I think probably is most likely to happen is: The court will strike it down on federalism grounds — that it’s a state’s issue," Steed says.
Such a ruling would "theoretically move the ball forward but not force anything" on the states, he says.
The Texas Attorney General’s Office has intervened in both cases. Lauren Bean, a spokeswoman for the office, declines comment.
Kelly Shackelford, president and CEO of the Liberty Institute, has written two amicus briefs in both cases before the Texas high court on behalf of two state legislators. Those briefs argue that in Texas a marriage should be between a man and a woman.
Shackelford doubts that the U.S. Supreme Court will force Texas to change laws that prohibit gay marriage.
"I don’t think that’s going to happen in Texas. The whole point is for states to have their own public policy and to compete for what public policy works well," Shackelford says. "I think the Supreme Court will let that occur, and that’s the way a democratic republic is supposed to operate."
But there’s much more at stake for gay couples, as DOMA laws affect more than just family law in Texas, Katine says. They also affect probate, tax, real estate and any other state statute where being a "legally recognized spouse" determines how those laws are applied.
"So, we are all going to be hanging on these opinions that will be coming out in June," Katine says. "We have to wait for that they say."