Justice John Devine’s Strong Dissent on Same-Sex Marriage/Divorce Case

Jun 23, 2015 by

Texas Supreme Court Judge John Devine

Texas Supreme Court Judge John Devine

“Justice John Devine’s Strong Dissent on Same-Sex Marriage/Divorce Case”

By Donna Garner



On 6.19.15, the Texas Supreme Court rendered its opinion on the same-sex marriage/divorce case which is called the Naylor v. Daly case.  This has to do with two lesbians (Angelique Naylor and Sabina Daly) who got married in Massachusetts in 2004, moved to Texas, and wanted a divorce in 2010.  


As Jonathan Saenz of Texas Values put it, “Today five members of the Texas Supreme Court refused to vacate a patently illegal and unconstitutional divorce decree entered by a Travis County district court. Worse, they refused even to consider the appeal brought by the Attorney General in response to this lawless act.”

Five members of the Texas Supreme Court (Justices Jeff Brown, Nathan Hecht, Paul Green, Phil Johnson and Jeff Boyd) joined the majority opinion, and allowed the same-sex marriage/divorce to stand.

However, Justices John Devine, Willett, and Guzman dissented.  Justice John Devine wrote his own powerful dissent, and I decided to read it for myself:



I am certainly not a lawyer, but Justice Devine’s dissent even makes sense to me.  Basically, he determined that since Texas only recognizes traditional, heterosexual marriages, the State cannot logically grant a same-sex divorce because there cannot be a divorce without a marriage.


Texas Family Code makes same-sex marriage void in Texas; and Texas law allows a court to grant a divorce only to married couples.


Justice Devine points out that Texas laws do not violate the U. S. Constitution. The 14th Amendment prohibits states from depriving a person of “life, liberty, or property, without due process of law.”  However, Texas does most certainly allow due process. The parties involved could have sued to have their marriage declared “void.”  Voidance procedures do allow for the “settlement of property disputes,” for situations that affect the parent-child relationship, and for “other legal process incidental to the dissolution of a purported marriage.”


Also Texas law does not deny any person “equal protection of the laws.”  Texas does not “distribute benefits unequally,” and homosexuals are not defined by the U. S. Supreme Court as a “suspect class.”  Texas laws make it very clear that our laws should “encourage stable family environments for procreation and the rearing of children by a mother and a father.” In fact, the U. S. Supreme Court has long recognized the same definition which is “fundamental to the very existence and survival of the race.” 


In Justice Devine’s dissent, he emphasizes that by granting the two parties a divorce, it “undermines the State’s interest in preserving the traditional definition of marriage – that of furthering stable family environments for procreation and the rearing of children by a mother and a father.” 


Justice Devine explains that the State has made certain policy decisions and that it is not up to the judiciary to second-guess them.  A democratic process was put in place which is “within the broad range of options allowed by the U. S. Constitution.”


Texas law is “not motivated by animus toward a particular group; it is based on a historical understanding of what marriage actually is and how this fosters a healthy family environment for children.”  It is not up to the judiciary to decide whether the State is wise or unwise in its establishment of the definition of marriage and divorce but that the people of Texas “have spoken.”


One other point that Justice Devine makes is that according to federal law, Texas does not have to agree with what another state decides (e.g., Massachusetts).  “The Full Faith and Credit Clause does not require a State to apply another State’s law in violation of its own legitimate public policy…When marriage has one meaning in Massachusetts, and another in Texas, the Full Faith and Credit Clause does not require Texas to apply Massachusetts’ definition to Naylor and Daly.”  


In previous cases, the U. S. Supreme Court has upheld the right to travel.  Naylor and Daly presented no evidence that Texas law has deterred their travel.  “Texas preserves the traditional definition of marriage, applying the definition equally to individuals whether they migrate to Texas or not.”


Justice Devine concludes his dissent by stating, “I further conclude that the trial court is prohibited by state law from granting a divorce in this case and can only void the marriage or dismiss the case.  I finally conclude that Texas law declaring same-sex marriages void does not violate the federal Constitution. I would accordingly reverse the judgment of the court of appeals and remand to the trial court for further proceedings consistent with these conclusions.  Because the Court does not, I respectfully dissent.” 


I say, “Thank you, Justice Devine, for explicitly explaining through the use of carefully articulated case law the reason that Texas should not grant Angelique Naylor and Sabina Daly a divorce. If same-sex marriage is not legal in Texas, there is no logical way to explain something away that does not exist.”


Donna Garner


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