Attorney General Greg Abbott, on behalf of the state of Texas, moved to intervene to block the divorce, claiming that the court lacked subject matter jurisdiction.

On October 1, 2009, Dallas District Judge Tena Callahan rejected Texas's intervention and held that the Texas Constitution's ban on same-sex marriage, article I, section 32(a), known as Proposition 2, violated the Fourteenth Amendment's due process and equal protection clauses.

Abbott noted that the definition of marriage that Callahan held unconstitutional had been approved by 75% of Texas voters.

It is reasonable for the state to conclude that the optimal familial setting for the raising of children is the household headed by an opposite-sex couple."

[8] On August 23 the Texas Supreme Court agreed to hear the merits and scheduled oral argument for November 5, 2013.