AG's Big Legal Error in Gay Divorce

09/28/2010 10:04 am ET | Updated May 25, 2011

In his rush to intervene in the now nationally famous gay divorce case, the Texas Attorney General has made a big legal mistake. He wrongly challenged the jurisdiction of the District Court. If the District Court made an error, the AG had a full remedy: the traditional appeal.

Instead, the AG jumped in with the mistaken but dramatic claim that the Texas Legislature had somehow removed "jurisdiction" when the Legislature did no such thing. If the Legislature had tried, such an attempt is clearly in violation of the Texas Constitution.

The AG forgot a basic concept: our Texas District Courts are courts of "general jurisdiction", and are granted jurisdiction of the subject matter of a divorce by the Texas Constitution.

Mr. Abbott is saying, in effect: "Judge, you have jurisdiction as long as you agree with me. If you void the marriage, declaring it never existed, that's great. If you won't void the marriage, though, you have no jurisidction."

Texas is special, different from many other governments, in giving District Courts divorce jurisdiction. The story of the first permanent divorce granted in Texas, Sam Houston's in 1837, is brilliantly told and analyzed by Prof. Jim Paulsen of South Texas College of Law in a friend of the court brief. Sam Houston's divorce was granted a few months after District Courts were established in Texas. The judge was the same judge who chaired the committee drafting the first law establishing our District Courts. He certainly knew the intended subject matter! Our first state constitution confirmed District Court jurisdiction in "all cases of divorce," Prof. Paulsen explains, and renounced legislative divorce jurisdiction. That prohibition on the legislature remains to this day in Tex. Const. Art. III, section 56, as does exclusive District Court jurisdiction of "all actions, proceedings, and remedies." Tex. Const. Art. V, Section 8.

While the political and social issues are vigorously debated, the jurisdiction of a District Court in Texas should not be a political toy. Prof. Paulsen quotes Supreme Court Chief Justice Marshall on the significance of the issue: "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution." Cohens v. Virginia, 19 US 264, 404 (1821).

If the AG believes the Court was wrong in its decision to grant the divorce instead of "voiding" the marriage, declaring it never existed, Mr. Abbott should use the traditional appeal on merits. Traditional appeals are time consuming, and wouldn't yield a result until after the election. The challenge to jurisdiction produced a quick, splashy and erroneous result. Ultimately, the Courts will sort out the mess and uphold the Constitutional protection of the jurisdiction of District Courts in Texas. That will happen after the November 2010 election.