Texas judge: gay marriage ban "unconstitutional"

[finalsbound]

Judge calls Texas' gay-marriage ban into question

By ROY APPLETON / The Dallas Morning News rappleton@dallasnews.com In a first for Texas, a judge ruled Thursday that two men married in another state can divorce here and that the state's ban on gay marriage violates the U.S. Constitution. Both a voter-approved state constitutional amendment and the Texas Family Code prohibit same-sex marriages or civil unions. Although the case is far from settled, and the state's constitutional ban on gay marriage is a long way from being thrown out, Dallas state District Judge Tena Callahan's ruling says the state prohibition of same-sex marriage violates the federal constitutional right to equal protection. Texas Attorney General Greg Abbott had intervened in the two men's divorce case, arguing that because a gay marriage isn't recognized in Texas, a Texas court can't dissolve one through divorce. Callahan, a Democrat, denied the attorney general's intervention and said her court "has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction." "This is huge news. We're ecstatic," said Dallas attorney Peter Schulte, who represents the man who filed the divorce. The man, identified in court documents as J.B., asked that he and his former partner not be identified. Schulte said that the ruling was a surprise and that he hoped to have a divorce order for the judge to sign in the "next few weeks." In a prepared statement, Abbott said he would appeal the ruling "to defend the traditional definition of marriage that was approved by Texas voters." His statement also said, "The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman. Today's ruling purports to strike down that constitutional definition – despite the fact that it was recently adopted by 75 percent of Texas voters." Gov. Rick Perry, who pushed for the constitutional prohibition on gay marriage in 2005, expressed confidence that the ban would stand up to this challenge. "Texas voters and lawmakers have repeatedly affirmed the view that marriage is defined as between one man and one woman," he said in a prepared statement. "I believe the ruling is flawed and should be appealed." The men married in Cambridge, Mass., in September 2006 and later returned to Dallas. J.B., citing "discord or conflict of personalities," sued in January to dissolve the union in what is believed to be the first such action in Texas. "My client is ready to get on with his life," Schulte said. "We're ready to roll." If the ruling were to stand, it would be a break from recent decisions elsewhere. An Indiana judge last month denied the divorce of two women married in Canada, concluding it would violate Indiana law. And two years ago, the Rhode Island Supreme Court rejected the divorce of a lesbian couple married in Massachusetts. Neither Indiana nor Rhode Island allow same-sex marriage. In March 2003, a Texas court became the first one outside Vermont to grant the dissolution of a civil union. The judge reversed his decision after a challenge by Abbott, a Republican. Beyond Massachusetts, gay marriages are legal in Vermont, Connecticut and Iowa. In New Hampshire, a same-sex marriage law goes into effect in January. Maine legalized gay marriages this year, but opponents challenged the decision and the law is on hold pending the outcome of a vote next month. Civil unions providing rights and responsibilities to same-sex couples are allowed in New Jersey. And domestic partnership laws provide spousal rights to same-sex couples in California, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon, Washington, Wisconsin and the District of Columbia. In a court filing, Schulte challenged the state's opposition, saying its arguments were an attempt to "mislead this court in an effort to pursue the attorney general's own political agenda." He cited wording in the state Family Code that "the law of this state applies to persons married elsewhere who are domiciled in this state. And he noted that "Black's Law Dictionary defines a person as a 'human being.' " The Family Code section deemed unconstitutional by Callahan prohibits the recognition of any same-sex marriage or civil union, and it bars the state and cities from extending any legal protection or benefits that flow from such unions. The constitutional amendment, passed by the Legislature in 2005 and approved by an overwhelming majority of voters that November, defines marriage as a union between one man and one woman, and it prohibits the recognition of any other type of union. In his filing, Schulte also wrote that the state "is obviously confused or worried that the court, by granting this divorce, would somehow open the floodgates for same-sex marriages to occur in the state. A divorce clearly ends a marriage. "If a divorce is granted in the case, the court is NOT creating, recognizing or validating a marriage between persons of the same sex; rather the effect of a divorce immediately ends a marriage, which furthers the 'public policy' of this state as written in the Family Code." Schulte also argued that the men had the right to divorce under Article IV, Section 1 of the U.S. Constitution, which states, in part, that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state." The clause "requires that a valid judgment from one state be enforced in other states regardless of the laws or public policy of the other states," he wrote. In a filing, the attorney general's office rejected that argument, saying the clause "does not require Texas courts to recognize or give legal effect to marriages between persons of the same sex under the laws of other jurisdictions." J.B. could not be reached for comment Thursday. After filing the lawsuit, he said the marriage, in which he took his partner's surname, "was not entered into lightly." After 11 years together, the breakup is painful, he said. But "I believe all people should have the same rights to do what they want to with their private lives."

How likely is this to be overturned?

I feel like it's something to get hopeful about, albeit a glimmer...but then again, this is Texas. Is it inconsequential? Could it be the first small step?

[Shovel Face]

Stop looking to the state to legitimize yourself.

[DonnyMost]

Originally Posted by Shovel Face Stop looking to the state to legitimize yourself.

So who else are we supposed to look to for protection under the law?

[across110thstreet]

I never would have thought this would happen in Texas before California. But it is a step in the right direction for equal rights and equal opportunities.

[B-Bob]

Originally Posted by Shovel Face Stop looking to the state to legitimize yourself.

That's exactly what I (a secure hetero) would say to insecure heteros who think they need to tell gay people what they can and can't do. "But, but, ... if they can marry each other... what's to keep one of them from... kissing me in a crowded elevator!"

Leave "the state" totally out of marriage.

[br0ken_shad0w]

Originally Posted by Shovel Face Stop looking to the state to legitimize yourself.

Goes both ways buddy.

[DonnyMost]

Originally Posted by B-Bob That's exactly what I (a secure hetero) would say to insecure heteros who think they need to tell gay people what they can and can't do. "But, but, ... if they can marry each other... what's to keep one of them from... kissing me in a crowded elevator!" Leave "the state" totally out of marriage.

NSFW

[Refman]

Originally Posted by Shovel Face Stop looking to the state to legitimize yourself.

I don't think that anybody is looking to the state to "legitimize" anything.

It is about protection of property rights as much as anything. Under the law right now, a man and woman can marry. If one of them decides to end the relationship 10 years later, there is a divorce process by which both parties to the relationship are protected in their rights to property acquired during the relationship.

If two gay men or women have the same 10 year relationship, one of them can take everything when they decide to end it and the other has no legal recourse. It is not exactly equal protection under the law.

I did not write the Constitution, I just seek to have it enforced as written.

[B-Bob]

Originally Posted by br0ken_shad0w Goes both ways buddy.

I think that's what he's afraid of! (*rimsh-- er, I mean...)

[YallMean]

Originally Posted by across110thstreet I never would have thought this would happen in Texas before California. But it is a step in the right direction for equal rights and equal opportunities.

A panel of liberal judges more than anything else.

[Pimphand24]

Originally Posted by Refman I don't think that anybody is looking to the state to "legitimize" anything. It is about protection of property rights as much as anything. Under the law right now, a man and woman can marry. If one of them decides to end the relationship 10 years later, there is a divorce process by which both parties to the relationship are protected in their rights to property acquired during the relationship. If two gay men or women have the same 10 year relationship, one of them can take everything when they decide to end it and the other has no legal recourse. It is not exactly equal protection under the law. I did not write the Constitution, I just seek to have it enforced as written.

If I remember correctly, you do family law right? Therefore, I know that you'd be more knowledgeable than I on this subject so I would like to hear your opinion on the matter.

Let's imagine a man and his wife. There is a right to marry under the U.S. Constitution. Isn't it arguable that this right to marry, also entails a right to divorce... so you can marry another person?
There, of course, is a limitation on this right to marry in that you can't be married to more than one person at the same time.

However, it seems to me that the right to marry entails a right to divorce. Otherwise we might as well have the Catholic Church in power to restrict our freedom to separate from a marriage we do not like, even when there is adultery and/or abuse involved.

Now that we've established: marriage ---> divorce.
What happens if we have divorce recognized for gay men. By recognizing divorce, you recognize their right to marry.

Therefore marriage <---> divorce. Each are tied to the other, in a U.S, Constitutional sense.

Before you quickly object, I'd like to point out that Chemerinsky, the Constitutional guru himself, says it is quite arguable that the right to marry brings about a right to divorce.

I myself don't approve of gay marriage morally, but the Constitution is another thing. I have a feeling that this may be a setback for the gay rights movement.
With conservative judges in power, this could set some precedent against their interests. It just isn't the right time to fight this fight.

Reminds me of that San Francisco mayor who passed law for gay marriage rights, because it was the right thing to do apparently and I think he wanted attention. He did this right before the Bush v. Gore election. Bush used this as his strongest campaign point and this mobilized the Christian-conservative base to appear in droves to the voting booths and then of course, you lose the having an advocate in the White House.

Anyways, I digress. Right to marry brings about right to divorce. Divorce means that there was a right to marry in the first place. Is there more to it than property rights?

[pouhe]

This may have just been a judge trying to cut some red tape so she could resolve an issue in her house. I can't imagine anyone in the state judicial hierarchy would overturn the existing State Constitutional amendment: hell this is Sweatt v. Painter, Roe v. Wade and Lawrence v. Texas country.

And I figured the Defense of Marriage Act was specifically designed for this at the Federal level, so I guess they might be forced to challenge this at some point.

[across110thstreet]

Originally Posted by YallMean A panel of liberal judges more than anything else.

that the people elected or appointed by the people that the people elected.

USA Justice

[Refman]

Originally Posted by Pimphand24 If I remember correctly, you do family law right? Therefore, I know that you'd be more knowledgeable than I on this subject so I would like to hear your opinion on the matter. Let's imagine a man and his wife. There is a right to marry under the U.S. Constitution. Isn't it arguable that this right to marry, also entails a right to divorce... so you can marry another person? There, of course, is a limitation on this right to marry in that you can't be married to more than one person at the same time. However, it seems to me that the right to marry entails a right to divorce. Otherwise we might as well have the Catholic Church in power to restrict our freedom to separate from a marriage we do not like, even when there is adultery and/or abuse involved. Now that we've established: marriage ---> divorce. What happens if we have divorce recognized for gay men. By recognizing divorce, you recognize their right to marry. Therefore marriage <---> divorce. Each are tied to the other, in a U.S, Constitutional sense. Before you quickly object, I'd like to point out that Chemerinsky, the Constitutional guru himself, says it is quite arguable that the right to marry brings about a right to divorce. I myself don't approve of gay marriage morally, but the Constitution is another thing. I have a feeling that this may be a setback for the gay rights movement. With conservative judges in power, this could set some precedent against their interests. It just isn't the right time to fight this fight. Reminds me of that San Francisco mayor who passed law for gay marriage rights, because it was the right thing to do apparently and I think he wanted attention. He did this right before the Bush v. Gore election. Bush used this as his strongest campaign point and this mobilized the Christian-conservative base to appear in droves to the voting booths and then of course, you lose the having an advocate in the White House. Anyways, I digress. Right to marry brings about right to divorce. Divorce means that there was a right to marry in the first place. Is there more to it than property rights?

First, I would like to thank you for a really well-reasoned post. Lots to think about there.

I do not practice family law. My former law partner did. So I picked a few things up.

The way that I conceptualize it, at least Constitutionally, is that a marriage really creates two unions.

The first is the marriage according to the rules of whatever church the parties subscribe to. Whether or not they can divorce is according to those rules. The church can discriminate freely on who can enter into this union.

The second is a union at civil law. A divorce proceeding is how you dissolve this in the eyes of the state. The martial property rights statutes determines who gets what and everybody's rights are protected. Constitutionally, there should not be an entire set of Americans who have no legal protection. It is wrong and, I believe, unconstitutional.

There is a difference between legal marriage and religious marriage.

I hope that answers your question.

[weslinder]

Speaking as someone who has been in the middle of angry break-ups involving a homosexual family member, I agree with this decision, though one part more than the other. I whole-heartedly support gay divorce. Gay marriage, sure, whatever.

[Rocket River]

I think MARRIAGE *PERIOD* is unconstitution


Rocket River
The government need to get out of the marriage business

[basso]

Obama does not approve.

but i do

[MrRoboto]

The difference being that people seem to care what Obama thinks.

Congratulations on another opportunity to show your blind hatred for the leader of our nation. I have heard fat ultra-rightwing religious nuts say that, even though they didn't vote for him, they support our president and wish him the best.

Why do you hate America, Basso?

[basso]

Originally Posted by MrRoboto The difference being that people seem to care what Obama thinks. Congratulations on another opportunity to show your blind hatred for the leader of our nation. I have heard fat ultra-rightwing religious nuts say that, even though they didn't vote for him, they support our president and wish him the best. Why do you hate America, Basso?

because i'm not a fat ultra-rightwing religious nut in america?

[pouhe]

Originally Posted by Rocket River I think MARRIAGE *PERIOD* is unconstitution Rocket River The government need to get out of the marriage business

Well, good luck with that. I think until the 19th century, most governments on the planet were hereditary, and therefore formed and expanded in large part by marriages. Matrimony laws have been around since at least ancient Babylon; and they've always involved contracts, inheritances and exchanges of property: which will always be regulated by government. I don't think it'll change anytime soon.