Texas Judge Rules Gay-Marriage Ban Violates U.S. Constitution

DALLAS — A Texas judge cleared the way for two Dallas men to get a divorce, ruling Thursday that Texas' ban on same-sex marriage violates the constitutional guarantee to equal protection under the law.

Texas Attorney General Greg Abbott said he'd appeal the ruling, which he labeled an attempt to strike down the ban approved by voters in 2005.

"The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman," Abbott said in a written statement. "Today's ruling purports to strike down that constitutional definition – despite the fact that it was recently adopted by 75 percent of Texas voters."

Abbott has argued that because the state doesn't recognize gay marriage, its courts can't dissolve one through divorce.

District Judge Tena Callahan's ruled Thursday, however, that the court "has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction."

Jennifer Pizer, marriage project director for the New York-based gay rights group Lambda Legal, said it is too early to predict the ultimate implications of the lawsuit, in which neither man is identified.

But Cathy Adams, president of the conservative Texas Eagle Forum, characterized the decision as a judicial overreach.

"Judicial activism is what they're after, and it sounds as if they found someone in Dallas to participate in their endeavor," she said. "The people of Texas have spoken very strongly in opposition to same-sex marriage."

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Peter Schulte, an attorney for the man who filed for divorce, told The Dallas Morning News that he and his client are "ecstatic" over the court's ruling. Schulte said the decision was a surprise, and that he hoped to have the judge sign a divorce order in a few weeks.

Gov. Rick Perry said state lawmakers and voters have repeatedly affirmed marriage as being between a man and a woman.

"I believe the ruling is flawed and should be appealed," Perry said.

Sen. Kay Bailey Hutchison, R-Texas, said she also supports Abbott's decision to appeal. Hutchison, who is challenging Perry in the GOP gubernatorial primary, said she has "consistently voted to preserve the sanctity of marriage and as governor I will continue to defend traditional marriage."

A phone message left by The Associated Press at court offices for Callahan was not immediately returned late Thursday. Callahan's ruling was first reported in The Dallas Morning News.

Pizer predicted an eventual end to bans on gay marriage in Texas and across the country.

"Most people do recognize that, eventually, American law will treat gays and lesbians the same as every other American," she said. "What we don't know is how may chapters that story will be."

Comments

[Proud Bay Man]

My lover and I are part of the 18,000 allowed to remain married in California. This means that we have special rights, not equal rights. Figure that out. A judge in the Prop 8 decision had no ethical reason to ask if she was to ignore the nilly willy of the voters. Did the supreme court ignore the nilly willy of the people for a decision with interracial marriage. This was not the popular of the people. Also the case of women's suffrage by congress, Black men to vote, etc. Issues that had to step over the nilly willy of the people. I could go on with examples of the widespread public discrimina­tion/separ­ation and the courts righting a wrong. If you could own slaves today, you'd be surprised how many of your friends and neighbors would vote in it's favor. Being against gay marriage is discrimination. Period. When religious organizations state they have no problem giving gay and lesbians the same benefits as married couples, just don't use the word "marriage", they are liars. Ads paid by religious organizations are proof of that. Until I can collect my husbands social security as a legally married spouse, it ain't equal, period. And we have been together 30 years in July. What's horrifying is the stance of the church on almost all of these unfair issues through the ages to simply keep people down. Remember that next time you throw a dollar into the basket.

[Valerie Keefe]

I do love that 14th amendment.

Everyone's equal.

If we'd just applied that law rationally, there really wouldn't be a need for ENDA.

[Liberal Angel]

Amen.

[Romulus]

Those who believe that one state not recognizing a marriage performed in another state violates the "Full Faith and Credit" clause might want to Google "Public Policy exceptions to the Full Faith and Credit Clause". Here is one of the things you will find:

Though courts from the lowest magistrate courts to the highest state courts practice full faith and credit on a daily basis, appeals courts in the various appellate court districts often make conflicting rulings on matters of law, which may stand in conflict until resolved by the U.S. Supreme Court or by legislative action. The Supreme Court of the United States has long recognized a "public policy exception" to the clause. If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to force a state to enforce the pronouncements of another state in contravention of its own public policy. The public policy exception has been applied in cases of marriage (such as polygamy, miscegenation or consanguinity), civil judgments and orders, criminal conviction and others

http://www.indopedia.org/Full_Faith_and_Credit_clause.html

[bannorhill]

You seem to miss the fact that Federal Courts have always ruled each state has the right to define what is and what is not a marriage in its boundries. Those laws are applied equally to all who live in the state. Texas does not recognize same sex marriages no matter if they were performed in our out of the state of Texas.

[Liberal Angel]

However a Texas court has ruled this in unconstitutional in Texas. No outside judicial opinion has been considered, just one in Texas.

[legalgirl]

The "marriage" you refer to is actually a legal contract that begins with obtaining a license to marry, requisite blood tests and finally the registration of the marriage with the state. Once your legal status has been changed, every other state is required by the U.S. Constitution to recognize your new marital status. If you're married in California, Arizona has to recognize it.

Obviously, the same is true when you dissolve and end that marital contract. It's actually called "dissolution of marriage" in California. It makes no logical or legal sense that you could legally enable someone to enter into a contract that cannot be dissolved. Such a concept would disallow the individual the freedom to the enter into contract in the first place. (Contracts not entered into freely are invalid.) IMO, this is the first ruling that actually makes sense. This is not judicial actvism. This is enforcing the law as it exists. Brava, Judge Callahan! Keep up the good work!

[inorbit]

Yes, banning gay marriage is a clear violation of the 14th amendments equal protection clause.

And it's amazing to me that most of these gun nuts, who think that they constitute a "well regulated militia" are able to justify not allowing gays to marry when it is clearly a violation of the Constitution and Bill of Rights they supposedly so greatly admire.

I say that's a bit of hypocrisy.

[bannorhill]

Is banning polygamy a violation of the 14th amendment?

[Liberal Angel]

Polygamy is not an immutable quality, so no it's not a violation. Comparing gays to polygamists still? Being a conservative is mutable, so I say we ban conservatism.

[A Concerned Citizen]

Define polygamy and state your objections to the concept or else be silent. You provide no information concerning your position other than a catch phrase.

I do belive that we have an example of the failure of informed debate.

[jweider]

Only in Texas would the Attorney General stick his nose into someone else's business and appeal a divorce.

[brt929]

No, he is just doing his job, he may not even agree with the state's stance on this issue.

Texas believes that it is in their best interest to prevent adjudication of this type of divorce.

He is definitely not the bad guy in this- the bad guys are those that wrote and voted for such legislation.

[bannorhill]

The Attorney General is correct.

If under Texas law the marriage does not exist, then how can a divorce be granted for something that does not exist?

[Liberal Angel]

It's not his job to try to stop a divorce. The court ruled, by the vein of thought you've been flip-flopping between, you have to follow what a court says. You can't change what a court says based on your logic.

[MikeHermit]

See, this is why we so often fail as a Democratic party. We all have our own agendas (generally speaking) and fail to unite and come together as a party, supporting one-another.

I am a proud Atheist. There are so many violations of church and state just in this one topic. Now I am for gays having the same right as straights not just because if the religious interferance, but because I, as a soldier, served equally for the rights of gays as well as straights. I come up with an idea that will both eliminate the religiously tinged word "Marriage" as well as give gays equal rights and it is shot down constantly because people don't seem to want equal, they just want the word "marriage".

The word is junk. Don't you see that? And as long as you cling to a word, the more you pout and cry that you don't have that word (even though under my plan you would have as much right to it personally as those who refuse to let you have it) the more they win by keeping that foolish word from you.

The goal should be obtaining equal status under law. The same title applied to straight couples as gay couples. No seperate but equal, equal but equal. Stop squabbling over a word, their word. As long as on the books all are the same.

Let's come together as a party. And stop clinging to outdated traditions

[JackNasty]

Separate isn't equal. It never has been and never will be. We need marriage equality now.

[bannorhill]

A man is not the same as a woman. Same sex unions are different than the Texas definition of marriage. Everyone in Texas is allowed to marry according to the laws of Texas.

[brt929]

I don't believe this is an issue that Democrats are divided on. In fact, this is one of the wedge issues that keep Republicans firmly Republican.

The real problem is that it doesn't effect enough of the voting public. Too many Democrats may be ambivalent about equal rights for the gay community because of the issues of health care, the wars, the recession, etc.

I just see this as an issue that takes a back seat to everything else.

[CoronaDischarge]

The reason it's shot down is because the word "marriage" doesn't belong to any religion to define outside its own context. Christian Conservatives are not in charge of defining the legal meaning under the Law. What they permit in their own church is their own business. Imposing their meaning on everyone else however constitutes a tyranny ... something the Constitution prohibits.

[The Ogre]

To clarify my comment below...th­ese guys got married somewhere else. In most states, a court can dissolve a marriage that was legally performed in another state (even most other countries).

The judge was just doing exactly that. But, since this was two guys, the gay-haters got all in a tizzy.

However, it doesn't help the cause to misrepresent the ruling with a misleading headline.

[brt929]

Yes, but you have to see the big picture, and the reason these two bothered to file for the divorce.

Once Texas adjudicates this divorce, that effectively means the state must at least recognize gay marriage. Failure to do so is unconstitutional.

Then comes step 2: Denying marriage to gays is unconstitutional.

It really is a very smart and strategic move.

[bannorhill]

By Texas law same sex marriage does not exist. If it does not exist how can the state dissolve it?

[Liberal Angel]

According to this Texas court, the existing law is invalid.

[The Ogre]

One interesting point: the headline here is completely misleading if not outright false.

The judge ruled that their court had the jurisdiction to hear a divorce petition from another state, since the marriage was legal in that state.

Pretty straightforward extension of existing precedent, really, and not at all what the headline says.

[MathIsTruth]

You are not correct. You can read the judge's order on page 4 of the following document.

The judge ruled:

"The Court FINDS that Article 1, Section 32(a) of the Texas Constitution violates the right to equal protection and therefore violates the 14th Amendment of the United States Constitution.

"The Court FINDS that Texas Family Code Section 6.204 violates the right to equal protection and therefore violates the 14th Amendment of the United States Constituti­on."

The headline for this article is totally correct, and you now owe an apology.

[MathIsTruth]

And I owe YOU an apology for not pasting in the link:

http://alt.coxnewsweb.com/shared-blogs/austin/courts/upload/2009/10/abbott_appeals_gay_marriage_ru/10%202%2009%20Notice%20of%20Appeal.pdf

[MikeHermit]

This whole thing needs to end. Those who feel that marriage is between a man and a woman are right.

So let them have it that way.

This really is a simple fix. Simply change all legal documents to reflect marriages not as "Certificate of marriage" but "Certificate of Civil Union". And Divorce would be "Termination of Civil Union".

So a couple gets married by their pastor, turn in the certificate, they get back a Certificate of Civil Union. Even gays can freely get "Married" in their churches. As the term Marriage does not legally apply. Freedom of Religion and all, they get a Civil Union yet call it Marriage it does not matter, as once they turn in their paperwork they all get back a "Certificate of Civil Union".

Whatever they call it in their churches, among their friends, where ever does not matter. The state recognizes all as Civil Unions. Mand and woman, woman and woman, man and man. It is a legal agreement to share expenses, give power of attorney, medical privileges, so forth. Just like regular marriages.

So don't fight to keep the words "Marriage" an "Divorce". You can have them in your churches all you want anyway. Simply convert all "Marriages", straight or gay, to "Civil Unions".

[UpUpandAway]

We want what the hetero's have had. plain and simple. GO D doesn't exist. why would we want to use 'his' buildings? we just want to be married, which, the WOR D marriage was created by a man. NOT your GO D. so it is humanity that can decide how we use that word. NOT your silly book.

[MikeHermit]

I have no God, thus I am an Atheist. It is not my God. And arguing over a word is silly. Are you interested inf equal treatment under the law? Including having the same word applied to your union as it is to their union? Then what difference does it make what that same and equal word is? You could call it Potato. If straights got potatoed, and gays got potatoed, it is the same potato.

Stop being silly. Equal but equal is what you need to strive for. not a silly, outdated, archaic word just for foolish principal.

And like I said, once you hvae equal but equal, what they call it in the ceremony in their church, among their friends, and what you cal it in the ceremony, in church, among frieds will no longer be an issue. Everyone could have both a "Marriage" for the ceremony, and legal acceptance of "Civil Union" at the courthouse.

Nobody can tell you you cannot call it Marriage in your church, that whole freedom of religion.

[grdavis1019]

Judicial activism? How about bigot voter activism, stripping the constitutional rights of citizens? That's what it sounds like more to me. I don't have much faith in SCOTUS supporting gay rights and marriage, especially with the 5 bigots on the court holding the majority. They'll find a way to reinterpret the equal protection clause, just like they did for Bush to allow him to steal the election from Gore and disenfranchise the voters of Florida.

[atourdeforce]

No.

Let the churches change their terminology.

All Americans have a Constitutional right to be married. It is a civil right.

If churches need to create something just for their religious version of marriage, then let them come up with a new term.

[MikeHermit]

Who cares about what it is called? Really? And you could still call it marriage in church, or in home. We are talking about legal documents. Marriage has always had a religious conotation to it anyway. A civil union, something legally binding, not influenced by religion what-so-ever that all American consenting adults could enter into is what I am talking about.

Not some ancient ideology. Not an outdated concept. Let that, and the traditions that are entangled with them, be based on religion. And let the law be based on law.

You can still say you are married. Freedom of speech, and you could still do so in nay church that accepts it, freedom of religion. But on our legal books, if all marriages are Civil Unions, gay or straight, as they should be, all the rights afforded to one couple is afforded ewually to all couples, then why cling to an outdated word and traditions?

Because a word means far more then your relationship? Then don't get married, your priorites are messed up.

[KIVPossum]

First we need to stop lettng religious bodies do marriages / unions. A marriage is a legal contract, let it be handled by the state, city, country, in come way. If people feel the need to have a religious ceremony, do so, but that alone should not constitute a marriage.

Allow the government entity responsible for marriage to marry any two people who meet regular requirements of age, ability, and let the churchs only give blessings on those that meet their requirements.

[newtom]

Churches CANNOT perform a legal marriage without a state-issued license. Therefore, marriage is nothing if not a legal construct. The ceremony is not the issue, the license is. And since the license is granted under the construct of law, by the state, the state is therefore bound to provide equal treatment under the law to any two people who may wish to acquire a license.

Where and how the ceremony is performed is merely a formality and bears no impact on the legality of the contract.

The religious institutions are already protected by the Establishment Clause to refuse to conduct a ceremony for anyone who is not a member of that institution, therefore, there is no conflict with equal treatment.

[DoctorABC]

That's one judge who will have trouble getting re-elected, but good for him! With all the bad press Texas is getting with its loud wacky conservatives, it's nice to see some pro-progressive news coming out of this big, beautiful, diversified state.

[StevenKeirstead]

Ughm, the Jude is a woman.

[StevenKeirstead]

OOPS. The Judge is a woman.

[DoctorABC]

That's one judge who will have

[oceanofconsciousness]

I vote we revoke the health care of Congress. I bet I could get at least 51% of Americans to vote yes on that. Majority rules.

[oceanofconsciousness]

These 2 men were smart. I bet they filed in Texas just to see if they could push the envelope. Good for them.

[afrographia]

I wish folks would stop using the argument that since voters rejected gay marriage, it would violate their democratic rights to allow gay people to get married. Once and for all: MAJORITY RULES DOESN'T APPLY IN THE CASE OF HUMAN RIGHTS. And it is not judicial activism to enforce equality! What if 52% of us after 9/11 decided to put all Arab Americans in camps? Under the majority-rules logic, I'd probably be a slave...LO­L...Wait, that's not funny!

[oceanofconsciousness]

You are so right. Thomas Jefferson, an advocate of majority rule, said that majority rule cannot happen when it takes away the rights of minorities. It's called justice, equality, that which we're SUPPOSED to stand for in the U.S.

[MathIsTruth]

Exactly. It doesn't matter what percentage of voters in Texas approved a ban. If a law violates the US Constitution, it must be struck down.

If you don' t like having some law struck down, all you have to do is amend the US Constitution, and then re-enact your law.

Any public servant who thinks that her job is to "preserve the sanctity of marriage" but not "preserve and protect the US Constitution" is unqualified to hold public office.

[brt929]

It actually is more complicated than that. You have the Federal Doma Law, which essentially allows states to disregard the Full Faith and Credit Clause (Article IV, Section 1) of the U.S. Constitution.

One of these days, SCOTUS is going to have to do their job, and address a Federal Act that is nullifying a section of the U.S. Constitution.

Until they grant Certiorari to one of these cases, everything is in limbo and you have a patchwork of the different Circuits' interpretations.