Justice Don Willett told Scheske that in a divorce case, a court would have to presume there was a valid marriage.

But Scheske replied that, under longstanding Texas law, courts would only have to ask if the marriage was valid if either party challenged the validity.

Justice Eva Guzman asked Scheske why voiding the marriages was not proper in these cases.

Scheske said that separate is unequal, and it’s never constitutional. He claimed that voiding the marriages would engage in a “fiction” because everyone knows the marriages were valid in Massachusetts. Scheske said unlike Texas law invalidating other types of marriages, the same-sex marriage ban targets a “class of people.”

Willett noted that Scheske’s side has argued that the ban demeans or humiliates same-sex couples. He asked how the record shows that “irrational animus” motivated the law.

Scheske replied that Texas DOMA has nothing to do with divorce; it’s about marriage. Even if the state has a legitimate interest in regulating marriage, he said, that interest would not apply in a divorce, he said.

Willett noted that the state argues that same-sex divorces make an “implicit attack” on Texas same-sex marriage laws.

But Scheske said the AG wouldn’t have standing to intervene unless a party challenged the constitutionality of state law. Scheske claimed the AG was asking the court to “carve out” a new right for the state to intervene.