                                                                                                PD-1505-14
                                                                            COURT OF CRIMINAL APPEALS
                                                                                            AUSTIN, TEXAS
                                                                          Transmitted 6/29/2015 11:44:11 AM
                                                                             Accepted 6/30/2015 8:17:02 AM
    June 30, 2015                                                                            ABEL ACOSTA
                                                                                                     CLERK




                      State Counsel for Offenders
                              Texas Department of Criminal Justice
                                          P.O. Box 4005

                                     Huntsville, TX 77342-4005

                                          (936) 437-5203

June 29, 2015

Court of Criminal Appeals
P.O. Box 12308
Austin, TX 78711

       RE: Schlittler v. State, No. PD-1505-14

To the Honorable Judges of the Court of Criminal Appeals:

        As you are no doubt aware, last Friday, June 26, the United States Supreme
Court issued its opinion in Obergefell v. Hodges, 576 U.S. ___ (2015). In addressing the
inability of the states to bar marriage between same-sex couples, as well as holding
that the states must recognize same-sex unions across state lines, the court touched on
the Fourteenth Amendment Due Process and Equal Protection clauses as they apply
when a fundamental liberty interest is at stake, the same legal framework which
underlies Mr. Schlittler’s case. Consequently, as this case could not be addressed in
any of Mr. Schlittler’s prior filings before this court, Mr. Schlittler respectfully requests
the Court to take Obergefell into consideration in deciding the merits of his case.

        Throughout the majority opinion, the court repeatedly emphasized the right to
parent a child as being a select number of unenumerated rights under the Due Process
Clause which are not merely protected, but are virtually sacrosanct. This is because, as
the court explained, “choices concerning contraception, family relationships,
procreation, and childrearing, all of which are protected by the Constitution, decisions
concerning marriage are among the most intimate that an individual can make.” Id. at
*26-*27 (citing Lawrence v. Texas, 539 U.S. 558, 574 (2003)). Each of these rights, while
not wholly dependent on one another (as marriage is not necessary to have children,
nor is the ability to procreate a prerequisite for marriage), those rights naturally
support each other. Id. at *29-*30.
        As an example of the interrelatedness of these bedrock rights, the court
stressed the negative impact of a same-sex marriage ban on the children of a same-sex
couple. According to the majority, children of same-sex couples suffer harm from
such a ban in two parts: (1) the children suffer by knowing that their families are
perceived as lesser; and (2) by no fault of their own, they are harmed by the natural
byproducts of being raised by unmarried parents. Id. at *30. Likewise, Mr. Schlittler’s
son was harmed by a legislative declaration that his relationship with his father was
lesser. Of course, a degree of that harm comes with the territory of having a father in
prison, but criminalization causes unnecessary harm for him, as a new criminal case
opens every time his father sends him a letter. He was also forced, by no fault of his
own to suffer a degree of harm in being raised by one parent only, as under Texas
Penal Code 38.111, his right to override his mother’s veto power and contact his
father did not materialize until he turned seventeen.

       Finally, the court drew the Due Process and Equal Protection clauses of the
Fourteenth Amendment closer together than perhaps in any previous Supreme Court
analysis, asserting that the two have “synergy” in some cases. Id. at *38. Although the
majority opinion is hardly the model of analytical clarity, it appears that from their
point of view, where disparate treatment is shown relating to a fundamental right, a
violation of the Equal Protection Clause will be an ipso facto violation of the Due
Process Clause, so close is the tie between “liberty” and “equality.” Id. at *38-*41.
Likewise, here, in accordance with this reading of the majority opinion, the relevant
portion of the Texas Penal Code violated Mr. Schlittler’s fundamental Due Process
right to rear his son in two ways: (1) as an independent harm under pure Due Process
analysis, and (2) as the consequence of violating Mr. Schlittler’s right to equal
protection of the laws as it pertains to a fundamental right.

Respectfully submitted,

/s/ Kenneth Nash
Texas Bar. No. 14811030
P.O. Box. 4005
Huntsville, TX 77342
Telephone no. 936-437-5291
Facsimile no. 936-437-5279
E-mail address: Ken.Nash@tdcj.texas.gov
Cc:

Melinda Fletcher
Special Prosecution Unit
P.O. Box 1744
Amarillo, TX 79501
Facsimile no. 866-923-9253
E-mail address: mfletcher@sputexas.org

Lisa C. McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, TX 78711
Facsimile no. 512 463-5724
E-mail address: information@spa.texas.gov
