               IN THE SUPREME COURT OF TEXAS
                                        444444444444
                                          NO . 15-0139
                                        444444444444


                            IN RE STATE OF TEXAS, RELATOR


           4444444444444444444444444444444444444444444444444444
                             ON PETITION FOR WRIT OF MANDAMUS
           4444444444444444444444444444444444444444444444444444


        JUSTICE BROWN , joined by JUSTICE DEVINE , concurring in the dismissal of the petition for
writ of mandamus.


       In a span of less than three hours on February 19, 2015, the lawyer for the real parties in

interest, Sarah Goodfriend and Suzanne Bryant, accomplished quite a lot:

   ·   He filed a lawsuit challenging the constitutionality of provisions in the Texas Constitution

       and Texas Family Code stating that marriage in Texas can only be between one man and one

       woman;

   ·   He obtained a temporary restraining order in the same civil lawsuit—from a district judge

       who usually hears only criminal cases, with no notice to the Attorney General, and facing,

       at best, token opposition from the Travis County Attorney’s office—which allowed his

       clients to obtain a marriage license from the Travis County Clerk;

   ·   He obtained for his clients a waiver of the Texas Family Code’s mandatory 72-hour waiting

       period between the issuance of a marriage license and the performance of a marriage

       ceremony; and
    ·    To avoid intervention by the Attorney General or appellate review, he nonsuited the lawsuit

         following his clients’ marriage ceremony on the courthouse steps.

         Despite the nonsuit, the Attorney General filed a petition for writ of mandamus the next day

challenging the validity of the trial court’s order.

         Today this Court dismisses that mandamus petition as moot. In light of the United States

Supreme Court’s 5-4 decision in Obergefell v. Hodges,1 I cannot dispute this disposition. But the fact

remains that the temporary restraining order was a deliberate and premeditated misuse of the Texas

justice system—and that I cannot overlook.

         Anyone with elementary knowledge of Texas civil procedure knows that “[t]he purpose of

a TRO is to preserve the status quo.”2 In any given case, the status quo is “the last, actual, peaceable,

non-contested status which preceded the pending controversy.”3 In this case, the status quo was that

marriage in Texas was limited to the union of one man and one woman. So says the Texas

Constitution, the Texas Family Code, and Texas common law.4 Indeed, so says all of pre-21st-

century American history and all of Western Civilization from the beginning of Christendom to the

modern day.5 More pointedly, at the time the TRO in this case was requested and granted, no court



         1
             ___ U.S. ___, 135 S. Ct. 2584 (2015).

         2
             In re Newton, 146 S.W .3d 648, 651 (Tex. 2004).

         3
             Id. (internal quotation marks omitted).

         4
         See T EX . C O N ST . art. I, § 32; T EX . F AM . C O D E §§ 2.001, 6.204; Grigsby v. Reib, 153 S.W . 1124, 1130 (Tex.
1913) (“Marriage is not a contract, but a status created by mutual consent of one man and one woman.”).

         5
           In his dissenting opinion in Obergefell, Justice Antonin Scalia noted that from the time of its ratification until
this century, the Fourteenth Amendment had never been thought to grant a right to same-sex marriage:

                                                              2
with any precedential authority over any Texas state court had altered that status quo. Both the

lawyer seeking the TRO and the judge who granted it knew and ignored this fact.

         It is also fundamental that a trial court abuses its discretion when it makes a final adjudication

in a TRO.6 It’s right there in the title—temporary restraining order. TROs may be obtained ex parte,

with little to no notice to the opposing side, and in a non-evidentiary hearing precisely because the

law intends for them only to preserve the status quo until the trial court convenes a properly noticed,

adversarial, and evidentiary hearing on the injunctive relief the plaintiff seeks.7 Texas law should not




         W hen the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and
         one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it
         comes to determining the meaning of a vague constitutional provision—such as “due process of law”
         or “equal protection of the laws”— it is unquestionable that the People who ratified that provision did
         not understand it to prohibit a practice that remained both universal and uncontroversial in the years
         after ratification. W e have no basis for striking down a practice that is not expressly prohibited by the
         Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread,
         and unchallenged use dating back to the Amendment’s ratification. . . . The five Justices who compose
         today’s majority are entirely comfortable concluding that every State violated the Constitution for all
         of the 135 years between the Fourteenth Amendment’s ratification and M assachusetts’ permitting of
         same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental
         right” overlooked by every person alive at the time of ratification, and almost everyone else in the time
         since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver
         W endell Holmes, Jr., Learned Hand, Louis Brandeis, W illiam Howard Taft, Benjamin Cardozo, Hugo
         Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They are certain that the
         People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the
         democratic process when that is called for by their “reasoned judgment.” These Justices know that
         limiting marriage to one man and one woman is contrary to reason; they know that an institution as old
         as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be
         supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who
         does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all
         generations and all societies, stands against the Constitution.

Obergefell, 135 S. Ct. at 2628, 2629–30 (Scalia, J., dissenting) (emphasis in original).

         6
           See Newton, 146 S.W .3d at 652; Janus Films, Inc. v. City of Fort Worth, 358 S.W .2d 589, 590 (Tex. 1962)
(per curiam).

         7
             See T EX . R. C IV . P. 680; Houston Belt & Terminal Ry. Co. v. Tex. & N. O. R. Co., 289 S.W .2d 217, 219 (Tex.
1956).

                                                              3
be declared unconstitutional “based merely on pleadings and a brief, non-evidentiary TRO hearing

when substantial rights are involved and the issues are far from clear.”8 Yet that’s exactly what

happened here. The TRO provided the real parties in interest all of the relief they sought. After a

short hearing during which no testimony or other evidence was received—in which no court

reporter’s record was even taken—the trial court declared Texas marriage law unconstitutional and

authorized a union explicitly prohibited under Texas law. Then, once the marriage ceremony was

complete, the couple’s lawyer quickly nonsuited the case.9

         Counsel followed up this suborned abuse of discretion by bragging to the news media that

neither the Attorney General nor this Court could do anything about it. “We got our people married,”

he told one newspaper.10 Dismissing this mandamus action as an improper end run around court

procedure, he further insisted that the Attorney General “can’t retroactively undo a marriage by

saying the order was not valid. There is no procedure for that.”11 The Attorney General’s challenge

to the TRO, he maintained, has “no practical meaning.”12




         8
              Newton, 146 S.W .3d at 651.

         9
           See Epps v. Fowler, 351 S.W .3d 862, 870 (Tex. 2011) (disfavoring “nonsuits that are filed to circumvent
unfavorable legal restrictions or rulings”). After exchanging vows, Bryant reportedly said: “Let’s get back in (to register
the marriage) before they make it illegal!” Chuck Lindell, First Gay Marriage in Texas, A U STIN A M ERIC AN -S TATESM AN ,
Feb. 20, 2015, at A1.

         10
          Chuck Lindell, ‘I’ve Got It’: With License in Hand, Pair Make History in Joyful Rush, A U STIN A M ERIC AN -
S TATESM AN , Feb. 20, 2015, at A1.

         11
            Chuck Lindell, Paxton: Gay Marriage Won’t Stand; Attorney General Says License Issued by Travis Clerk
Illegal, Invalid, A U STIN A M ERIC AN -S TATESM AN , Feb. 21, 2015, at A1.

         12
              Lindell, ‘I’ve Got It’, supra note 10, at A1.

                                                              4
       These comments paired with the conduct he exhibited in this litigation make this fact

obvious: the lawyer for the real parties in interest intentionally and illegitimately gamed the

system—and the trial court helped him do it. Neither zealous advocacy on behalf of one’s clients nor

a desire to be on “the right side of history” is an excuse for cynically manipulating a system that

necessarily relies on the bench’s and bar’s high regard for the law. The ends do not justify the means.

       Members of the legal profession have agreed to live under rules proclaiming that it is “a

lawyer’s duty to uphold legal process,” that “[a] lawyer’s conduct should conform to the

requirements of the law,” and that “[a] lawyer should demonstrate respect for the legal system and

for those who serve it . . . .”13 The continued viability of the rule of law depends on the bench and

bar adhering faithfully to these obligations. To do otherwise impugns the integrity of our judicial

institutions and undermines the public’s trust in their objectivity and reliability.

       As judges and lawyers, we bear a sacred obligation to uphold the rule of law even when the

law does not conform to what we believe it should be. That duty includes withstanding the

temptation to bend and abuse legal process to collect an earnestly desired result the law simply does

not provide. Those who underhandedly indulge that temptation dishonor both our profession and the

rule of law.


                                                              _______________________________
                                                              Jeffrey V. Brown
                                                              Justice

OPINION DELIVERED: April 15, 2016


       13
            T EX . R U LES D ISCIPLIN ARY P. pmbl. ¶ 4.

                                                          5
