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Court: Texas AG Can't Intervene in Same-Sex Couple's Divorce

As Texas waits on the U.S. Supreme Court to rule, the state highest civil court ruled Friday that the Texas attorney general's office tried too late to stop a divorce between a couple married in Massachusetts.

Texas Supreme Court justices listen to the State of the Judiciary speech on February 23, 2011.

Editor's note: This story has been updated throughout.

As Texas waits on the U.S. Supreme Court to rule on same-sex marriage, the state's highest civil court ruled Friday that the Texas attorney general tried too late to stop the divorce of a Texas couple married in Massachusetts.

Five members of the Texas Supreme Court affirmed a 2011 opinion from the Austin-based 3rd Court of Appeals that said the attorney general's office did not have standing to appeal the divorce between Texas residents Angelique Naylor and Sabina Daly.

"We agree with the court of appeals that the state lacks standing to appeal the trial court’s decree," wrote Justice Jeff Brown for the majority. He was joined by Chief Justice Nathan Hecht and Justices Paul Green, Phil Johnson and Jeff Boyd.

Daly and Naylor married in Massachusetts in 2004. A few years later, Naylor filed for divorce and Texas District Judge Scott Jenkins of Travis County approved it.

In the opinion delivered Friday, Brown emphasized that the court's decision was confined to whether or not the attorney general's office's attempt to intervene was timely.

"This Court has consistently recognized the State’s right to defend Texas law from constitutional challenge," Brown wrote. "However, as the court of appeals explained, the State did not timely intervene in this dispute and therefore is not a party of record."

Justice Don Willett filed a dissenting opinion, joined by Justices John Devine and Eva Guzman.

"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," Willett wrote. "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."

Republican Gov. Greg Abbott, who formerly served as the state's attorney general, called the court's decision "disappointing and legally incorrect." Abbott, also a former Texas Supreme Court justice, said the court "mistakenly relied on a technicality" in its ruling and failed to address the state's constitutional definition of marriage.

"The state and all political subdivisions in Texas remain prohibited by the Texas Constitution from giving effect to a same-sex marriage or any document recognizing one — including the divorce decree in this case," Abbott said in a statement.

A spokeswoman for Ken Paxton, the current Texas attorney general, said the court erred in its ruling because it recognized same-sex divorce and did not allow the state "to mount a defense."

"The Office of the Attorney General must always have a voice in the discussion when the Texas Constitution is at risk," said Cynthia Meyer.

Texas' ban on same-sex marriages has been on the books for a decade, since Texas voters approved a constitutional amendment to define marriage between one man and one woman.

Gay rights advocates celebrated the court's decision as a step toward equality for same-sex couples.

"The decision is very encouraging and yet another sign that more courts, like the public generally, are recognizing that same-sex couples and their families are part of our society and should be subject to the same laws as others," said Shannon Minter, legal director of the National Center for Lesbian Rights.

A legal challenge to Texas' constitutional ban is awaiting a decision from a New Orleans-based federal appellate court that took up the case in January.

But all eyes are on the U.S. Supreme Court, which will have the final word on the issue. The high court is expected to rule in the coming weeks on whether same-sex marriages are constitutional nationwide.

Dozens of challenges to state same-sex marriage bans cropped up across the country after the U.S. Supreme Court struck down part of the federal Defense of Marriage Act in 2013.

Those challenges, including a case against Texas' ban on gay marriages, barreled through the courts. And the U.S. Supreme Court earlier this year took up four gay marriage cases out of a Cincinnati-based federal appeals court.

If the court rules that same-sex marriage bans are unconstitutional, its decision could legalize gay marriage nationwide.

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