Judge calls Texas' gay-marriage ban into question
12:00 AM CDT on Friday, October 2, 2009
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."
