Gay Marriage ban unconstitutional.

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."

I can hear the gnashing of teeth.

Tell you what. I promise to get really upset about gay marriage when some of you can convince me that it is going to have some real affect on my life, my relationships and my freedoms; or if you can convince me that gay marriage demeans the institution of marriage any more than do those Hollywood couplings we're reading about on a daily basis.

Until then ... it's a non-issue.

SUPREME COURT OF THE UNITED STATES

 

LAWRENCE et al. v. TEXAS

CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT

 

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No. 02—102. Argued March 26, 2003–Decided June 26, 2003

 

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Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence’s apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U.S. 186, controlling on that point.

 

Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Pp. 3—18.

 

(a) Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court’s initial substantive statement–“The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy … ,” 478 U.S., at 190–discloses the Court’s failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. Pp. 3—6.

 

(b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 478 U.S., at 192. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally, whether between men and women or men and men. Moreover, early sodomy laws seem not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of homosexual sodomy upon which Bowers placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. Far from possessing “ancient roots,” ibid., American laws targeting same-sex couples did not develop until the last third of the 20th century. Even now, only nine States have singled out same-sex relations for criminal prosecution. Thus, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are overstated. The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court’s obligation is to define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850. The Nation’s laws and traditions in the past half century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. See County of Sacramento v. Lewis, 523 U.S. 833, 857. Pp. 6—12.

 

© Bowers’ deficiencies became even more apparent in the years following its announcement. The 25 States with laws prohibiting the conduct referenced in Bowers are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States, including Texas, that still proscribe sodomy (whether for same-sex or heterosexual conduct), there is a pattern of nonenforcement with respect to consenting adults acting in private. Casey, supra, at 851–which confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education–and Romer v. Evans, 517 U.S. 620, 624–which struck down class-based legislation directed at homosexuals–cast Bowers’ holding into even more doubt. The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged, including notation of convictions on their records and on job application forms, and registration as sex offenders under state law. Where a case’s foundations have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on values shared with a wider civilization, the case’s reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Stare decisis is not an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828. Bowers’ holding has not induced detrimental reliance of the sort that could counsel against overturning it once there are compelling reasons to do so. Casey, supra, at 855—856. Bowers causes uncertainty, for the precedents before and after it contradict its central holding. Pp. 12—17.

 

(d) Bowers’ rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life. Pp. 17—18.

41 S. W. 3d 349, reversed and remanded.

When you read this decision it is easy to see gay marriage laws being overturned based on the same rational.

As RO has alluded to, the high divorce rate has already destroyed the sanctity of marriage.

It was Justice Kennedy, typically the swing vote on "morality" issues, who wrote the majprity opinion, in the above case. As Kennedy goes, so will the court.

A while back, the Massachusetts Supreme Court ruled that the state cannot discriminate against gay and lesbian couples in the recognition of marriages. The Massachusetts legislature had 180 days to come up with a way to give homosexual couples the same rights that heterosexual couples enjoy under Massachusetts law.

So here we have a very controversial judicial action. My first and really my only concern here is whether or not the action taken by the Massachusetts Supreme Court could lead somehow to a threat to my life, liberty or property, either through force or fraud. Try as hard as I might, I couldn't dream up the scenario where this would happen. Just which one of my rights is violated if, through the operation of law, the estate of a deceased gay man can pass to his gay partner? What do I lose if a lesbian can file a joint federal income tax return with her lesbian partner in marriage? Nothing .. that's what ... nothing. Not a damn thing.

So can someone tell me on just what basis I'm supposed to rant and rave against the idea of the law recognizing a committed relationship between two people who truly love each other but who happen to be of the same sex? Just what have I lost here? What am I going to lose if every state in the union steps forward and legalizes, as they say, "gay marriage"? Every single right that I have under the law today I will have under the law after gays and lesbians get their state issued marriage licenses.

Some of you are going to tell me that this is an affront to your religious beliefs. I respect that, but those are religious beliefs and have no role in the operation of government. Your religious beliefs are between you, your God, your family and your church. They are not to be guidelines for the operation of your government. Our government was founded on a principle of equal treatment under the law. Your religion may not be comfortable with that concept. Fine. Live your own life in strict accordance with your religious principles if you wish, but don't try to use the police power of government to compel others to live by them as well.

Some of the people who will object loudly to this decision will go to the corner store today to purchase their copy of People magazine and then wander off to their homes in time to catch Entertainment Tonight on the tube. They will "ooh" and "ahhhh" over the latest news and gossip about their favorite celebrities. These are the same celebrities who engage in a series of four-month marriages. They're also the same celebrities who get pregnant and then wonder out loud in anxiously awaited interviews about whether or not they'll get married to the father at some time in the future. Maybe so, maybe not. The Hollywood crowd has made a mockery of the idea of marriage and of raising children in mother-father households. If you want to focus your righteous rage somewhere ... try Hollywood!

In the meantime... unless you can tell me how gay marriage is going to effect your rights under the law, it's my position that you have nothing to gripe about.

A while back, the Massachusetts Supreme Court ruled that the state cannot discriminate against gay and lesbian couples in the recognition of marriages. The Massachusetts legislature had 180 days to come up with a way to give homosexual couples the same rights that heterosexual couples enjoy under Massachusetts law.

 

So here we have a very controversial judicial action. My first and really my only concern here is whether or not the action taken by the Massachusetts Supreme Court could lead somehow to a threat to my life, liberty or property, either through force or fraud. Try as hard as I might, I couldn't dream up the scenario where this would happen. Just which one of my rights is violated if, through the operation of law, the estate of a deceased gay man can pass to his gay partner? What do I lose if a lesbian can file a joint federal income tax return with her lesbian partner in marriage? Nothing .. that's what ... nothing. Not a damn thing.

 

So can someone tell me on just what basis I'm supposed to rant and rave against the idea of the law recognizing a committed relationship between two people who truly love each other but who happen to be of the same sex? Just what have I lost here? What am I going to lose if every state in the union steps forward and legalizes, as they say, "gay marriage"? Every single right that I have under the law today I will have under the law after gays and lesbians get their state issued marriage licenses.

 

Some of you are going to tell me that this is an affront to your religious beliefs. I respect that, but those are religious beliefs and have no role in the operation of government. Your religious beliefs are between you, your God, your family and your church. They are not to be guidelines for the operation of your government. Our government was founded on a principle of equal treatment under the law. Your religion may not be comfortable with that concept. Fine. Live your own life in strict accordance with your religious principles if you wish, but don't try to use the police power of government to compel others to live by them as well.

 

Some of the people who will object loudly to this decision will go to the corner store today to purchase their copy of People magazine and then wander off to their homes in time to catch Entertainment Tonight on the tube. They will "ooh" and "ahhhh" over the latest news and gossip about their favorite celebrities. These are the same celebrities who engage in a series of four-month marriages. They're also the same celebrities who get pregnant and then wonder out loud in anxiously awaited interviews about whether or not they'll get married to the father at some time in the future. Maybe so, maybe not. The Hollywood crowd has made a mockery of the idea of marriage and of raising children in mother-father households. If you want to focus your righteous rage somewhere ... try Hollywood!

 

In the meantime... unless you can tell me how gay marriage is going to effect your rights under the law, it's my position that you have nothing to gripe about.

Can't add much to that.

I see your point RO and I agree but where will it end?

What do you mean by that statement?

I mean will polygamy be next? Will bestiality be next?

Why' date=' Exactly, is Polygamy Illegal?[/color'] [/url]]There are already renegade Mormons practicing polygamy underground in the West. African immigrants bringing traditional tribal religions could argue for accommodation. Most importantly, the growing Muslim community in the USA could argue that their long-established recognition of limited polygamy, which is practiced by millions of Muslims worldwide, should be accepted under the “free exercise” clause of the first amendment. No such case has been filed yet, but it is only a matter of time.

 

I think polygamy is a bad idea for society. With a couple of exceptions, polygamy is really polygyny – one man, multiple women. What happens in polygynous societies is that low status men don’t get to marry at all. This, it seems to me, is just unfair and un-American. Moreover, in every case I have read about of polygyny, even in societies in which it was well established, the wives are never really ok with the fact that their husband has other wives and other children. Polygyny is one widely used way of settling the conflict between male and female strategies in mate selection and childrearing. It is not crazy, nor do I think it is barbarous. But I do think that it is unwise anywhere, and deeply unsuited to our culture and history.

 

It is not likely that American legislatures would ever legalize polygamy, no matter how many marriages and mistresses individual legislators have. But it is hard to see exactly how a court would now justify forbidding religions that do accept, even encourage, polygamy, from doing so here.

 

When we look at the numbers, there are many more polygamists in the world than there are people who want to have a same-sex marriage. It is not way out to imagine a polygamy crisis in America in, say, the 2030s, as there was in the 1830s. Polygamy, more than same-sex marriage, is, I think, more likely to result in a constitutional amendment defining marriage.

The above article by William Weston pretty much explains my views on polygamy.

As for interspecies unions, an animal can not give consent and how can we be so sure that the animal understands the concept?

How about the age of consent? Should NAMBLA get there rights too?

Do you believe 8 year olds should be allowed to drive? Do you believe 8 year olds should be allowed to drink? Do you believe 8 year olds should be allowed to vote? Do you believe heterosexual sex between children and adults is OK?

Do you believe 8 year olds should be allowed to drive? Do you believe 8 year olds should be allowed to drink? Do you believe 8 year olds should be allowed to vote? Do you believe heterosexual sex between children and adults is OK?

No I don't but I'm not the one passing law. This is my fear.

As to bestiality and consent. The animal can't speak but if it sticks its tail and ass up isn't that consent?

If the dog continuously humps your leg isn't that acknowledgment of consent?

If an eight year old girl wants to wrestle his grandpa, isn't that acknowledgement of consent?

No I don't but I'm not the one passing law. This is my fear.

As to bestiality and consent. The animal can't speak but if it sticks its tail and ass up isn't that consent?

Whether the State has written legislation against zoosexual acts or not, the offender can still be persecuted under animal cruelty charges.

Bestiality in Alaska is a misdemeanor. (As of 2009 legislation)

Bestality in Georgia is a felony.

Bestality is officially illegal in only 29 states.

What I take from this, more people would rather rape a donkey or a dog than another human being.

If a gay couple wants to go through the same rigamarole, headache and expense as a straight couple to get hitched, more power to them.

I don't think the government should intervene in such things. I also don't believe that gays have the right to scream that a church is discriminating against them if it refuses to marry them. The buck should stop at the church, and if that particular parish is against uniting homosexuals, then that view should not be questioned and the couple should go elsewhere to have their ceremony.

The sanctity of marriage today is a fukking joke. Hardly anyone takes it seriously anymore. I did...once...but now I'm just a jaded, heartless, non-believer of fairy tale endings.

I also don't believe that gays have the right to scream that a church is discriminating against them if it refuses to marry them. The buck should stop at the church, and if that particular parish is against uniting homosexuals, then that view should not be questioned and the couple should go elsewhere to have their ceremony.

 

That is the one legitimate concern that homosexuals will wage war on religious institutions, such as the Roman Catholic Church. Government cannot discriminate, private institutions should be able to.

Whether the State has written legislation against zoosexual acts or not, the offender can still be persecuted under animal cruelty charges.

 

Bestiality in Alaska is a misdemeanor. (As of 2009 legislation)

 

Bestality in Georgia is a felony.

 

Bestality is officially illegal in only 29 states.

 

What I take from this, more people would rather rape a donkey or a dog than another human being.

Yeah and you might be able to get away with it easier if you kill it first.

Sex with dead deer not illegal, lawyer argues

Can You Get Dear With A Dead Deer? - November 16, 2006

That is the one legitimate concern that homosexuals will wage war on religious institutions, such as the Roman Catholic Church. Government cannot discriminate, private institutions should be able to.

I completely agree with you there, hugo.

It's funny because I really do see both sides to the argument.

You have the extreme conservatives freaking out over the idea of homosexuality in general, so they try to utilize the laws and government to condemn and impede the lifestyle at every turn.

Then you have the exteme liberals who simply won't be happy with a legal marriage being acknowledged. They will push their agenda into all the churches and demand that their lifestyle choice be not only accepted by mainstream society, but also sanctified by God and all those who believe in His word and teachings.

Well, some people just don't believe same sex partnerships are ok, and they are still within their rights to feel that way!

You know, if people would just worry about what's going on in their own backyards rather than pushing their personal agendas upon everyone else, the world would be a much happier place.

I completely agree with you there, hugo.

 

It's funny because I really do see both sides to the argument.

 

You have the extreme conservatives freaking out over the idea of homosexuality in general, so they try to utilize the laws and government to condemn and impede the lifestyle at every turn.

 

Then you have the exteme liberals who simply won't be happy with a legal marriage being acknowledged. They will push their agenda into all the churches and demand that their lifestyle choice be not only accepted by mainstream society, but also sanctified by God and all those who believe in His word and teachings.

 

Well, some people just don't believe same sex partnerships are ok, and they are still within their rights to feel that way!

 

You know, if people would just worry about what's going on in their own backyards rather than pushing their personal agendas upon everyone else, the world would be a much happier place.

I completely agree too but when your neighbor broaches your yard you let the dogs out. Did you see the new commercial out in LA I believe with the cross dresser? They are trying to indoctrinate the young to believe this is normal behavior.

Although one of my daughters is gay and I do accept it. It really doesn't bother me. I can't really grasp the idea that she would marry though.

I would think her happiness is paramount. If my kids were gay and they found someone to share a life with, why would I stand in their way of making it official? Besides...marriages today are a complete and utter joke. Today...marriages mean nothing more than a bad decision that can be remedied quickly with some signed papers. Why bother.