Austin solo Jody Scheske
Austin solo Jody Scheske (Angela Morris)

The significance of Jody Scheske and Jason Steed’s remarkable victory before the Texas Supreme Court was quickly overshadowed by a ruling by the U.S. Supreme Court.

But they can still lay claim to being the first appellate lawyers to successfully defend before Texas’ highest court a same-sex couple’s right to get divorced—seven days before the rest of the state’s LGBT population would win the right to be married from the nation’s highest court.

In the June 19 ruling in Texas v. Naylor, the Texas Supreme Court agreed with Scheske and Steed’s arguments that the Texas Attorney General’s Office could not intervene to prevent the divorce of the lesbian couple who were married in another state.

Dissenting justices in the 5-4 Naylor decision called for a fuller debate on the constitutionality of Texas’ ban on same-sex marriage. But that issue was mooted on June 26 when the U.S. Supreme Court issued the landmark ruling Obergefell v. Hodges, which required all states to recognize same-sex marriages—and by extension, the rights of same-sex couples to use state laws to be divorced.

“It’s very reaffirming for us,” said Scheske, who along with Steed took on the plight of the same-sex couple as a pro bono project while working at Akin Gump Strauss Hauer & Feld six years ago.

“The majority opinion in Naylor ruled on a jurisdictional issue at the court of appeals, and that’s exactly what we asked the [Texas] Supreme Court to do,” Scheske said.

“Jason and I, as well as other attorneys at our former firm, worked for years on these cases. It’s rewarding to see it come to fruition through the U.S. Supreme Court, and it’s hard to be sad when equality prevails.”

The other case Scheske and Steed handled, J.B. v. Texas, was the first case in the state in which a trial court ruled that Texas’ ban on same-sex marriage was unconstitutional. That case also involved a same-sex couple who had married in another state but denied a divorce in Texas. The Texas Attorney General’s Office later intervened in both cases to prevent the divorces. J.B. was consolidated with Naylor on appeal. But J.B. was dismissed on appeal after one of the men died.

Texas Attorney General Ken Paxton blasted Naylor in a statement.

“The Texas Supreme Court effectively recognized same-sex divorce in Texas, contrary to the state constitution, and without allowing the state to mount a defense,” Paxton said of Naylor. “The people of Texas overwhelmingly chose to restate in our constitution the fact that marriage is between one man and one woman. However, certain state courts have chosen to erroneously recognize and apply the effect of a law from another state here in Texas, ignoring prevailing law. Preserving the integrity of the Texas Constitution must be paramount, and the Office of the Attorney General should always have a voice in the discussion when the Texas Constitution is at risk.”

Paxton later released a statement criticizing Obergefell, calling it a “dilution of marriage as a societal institution” that will “likely only embolden those who seek to punish people who take personal, moral stands based upon their conscience and the teachings of their religion.”

Paxton also released a statement suggesting that some county clerks may have a First Amendment right to refuse to issue marriage licenses to same-sex couples for religious reasons, but cautioned that they could be fined or face litigation.

Scheske is now an Austin solo and adjunct professor at the University of Texas School of Law, while Steed is now an associate in Dallas’ Bell Nunnally & Martin. Steed was out of the country and could not be reached for comment.

“The reaction of our state leaders is disappointing to anyone who believes in the rule of law,” Scheske said. “The U.S. Supreme Court decides constitutional issues, and all judges and state executives are bound to follow that law, not defy it.”