Analysis: In Supreme Court Primary Race, a Question of Judgment

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Something unusual turned up in the arguments over which Green — Paul or Rick — should be the Republican Party’s nominee for a seat on the Texas Supreme Court.

Their primary isn’t just about confusion over their names, but about their judgment. And their disagreement over a much-remarked 2015 ruling by the high court reveals a lot about what each would do after donning the judicial robes.

Texas v. Naylor got started on the legal merry-go-round with a state trial court’s decision to grant a divorce to a same-sex couple married in Massachusetts.

That court granted the couple their same-sex disunion. The state appealed, saying that people can’t get a same-sex divorce in a state where same-sex marriage is unconstitutional. The appeals courts said that because the state’s lawyers failed to intervene at the trial court level, the state didn’t have legal standing to appeal.

Paul Green was part of the 5-3 Supreme Court majority (Justice Debra Lehrmann did not take part) that ruled against the state, and it’s become an issue in his re-election bid this year.

Rick Green, his GOP primary challenger, spells out what he calls “the bottom line results” on his campaign website: “The decision in this case violated the Texas Constitutional definition of marriage (which had been adopted by the people of Texas with over 76% of the vote) and recognized homosexual marriage, while also violating the jurisdictional limitations placed on the court by the people of Texas (through the state Constitution).”

That’s kind of right, and kind of wrong. The Texas Supreme Court never ruled on same-sex marriage or divorce in this case. The judges ruled that the state’s lawyers missed their chance to intervene and, having missed it, forfeited the state’s standing to argue about whether a divorce should have been granted.

And a few days later, the U.S. Supreme Court ruled in an Ohio case, Obergefell v. Hodges, that same-sex couples have a constitutional right to marry. It wouldn’t have mattered what the Texas court had to say after all — until, of course, Election Day.

Rick Green apparently hopes voters aren’t paying close attention.

It’s not that the Texas judges disagreed about same-sex marriage and same-sex divorce — they never even arrived at that debate. This is where Rick Green is mischaracterizing what Paul Green and others did. They didn’t rule on marriage. They ruled on their own jurisdiction.

The court ruled that the state of Texas didn’t do what was necessary to get its arguments to the courts and that the appeal could not proceed. The attorney general’s office didn’t intervene at the trial court level and never asked the trial court to drop its ruling for just long enough to allow the state to get involved. By the time the appeals courts were involved, the state had missed its chance.

It’s an imaginative stretch to say that the Texas Supreme Court, with its nine Republican members, was going to slither out on a limb and give its legal endorsement to same-sex anything. This is not really politics, either, though it started there; this is about what’s in the state Constitution.

The Texas Legislature voted in 2005 to put a ban on same-sex marriage in the Constitution. Voters enthusiastically agreed. It’s in Article I, Section 32: “(a) Marriage in this state shall consist only of the union of one man and one woman. (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.” Even a courtroom full of liberal activists would have to admit that a same-sex marriage in Texas was legally out of bounds.

Paul Green was one of five judges in the majority, ruling that the lawyers for the state of Texas hadn’t followed the rules for getting an argument in front of the Supreme Court. One of three judges who disagreed, John Devine, wrote a 15-page dissent that spelled out how he would have ruled had the state been allowed to intervene.

“I conclude that the underlying divorce suit attacks the validity of our constitutional and statutory prohibition on same-sex marriage. 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,” he wrote.

Justice Jeff Brown, writing for the majority, made their sympathies clear: “The state asks us to determine whether Texas has a constitutional right to define marriage and whether state law precludes the trial courts from offering divorce to same-sex couples. We have no quarrel with Justice Devine’s analysis.”

Rick Green wants voters to spank Paul Green for the result, even though they would apparently agree on the subject of same-sex marriage and divorce. This is important because it tells you what sort of judge Paul Green is and what sort of judge Rick Green would be.

Paul Green ruled the lawyers had to follow the law. Rick Green, agreeing with the three dissenters, thinks the court should have skipped over that side dish to get to the meat.

And that leaves Republican voters with something even better than a name fight or a stack of mailers about who’s more conservative: A case study showing them which kind of judge they’ll be putting up for nomination to the Texas Supreme Court.