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SHOCK: Texas Judge Rules Gay Marriage Ban Is Unconstitutional

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Despite years of fighting for same-sex marriage rights, it has taken a gay divorce to get a Texas judge to declare unconstitutional the state’s ban on gay marriage.

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After 11 years with his husband, a man identified only as J.B. Jeffrey Buck wanted out of his marriage to Henry Buck. The pair married in Massachusetts in 2006 and then returned to Dallas. And that’s where things got fuzzy: J.B filed for divorce in a state that doesn’t even recognize same-sex marriage. So while Texas Attorney General Greg Abbott stepped in to try to keep the divorce case out of Texas courts, District Judge Tena Callahan (pictured) said the case still fell into her jurisdiction, and accepted it — and followed up with a ruling that not only can the two men divorce, but Texas’ gay marriage ban (approved by voters in November 2005) and the Texas Family Code (approved by lawmakers) violate the U.S. Constitution. (Callahan’s ruling only says she can hear the divorce case; the case itself has yet to be heard. Meanwhile, it’s worth noting she’s donated over $10k to the Dallas County Democratic Party.)

AG Abbot, for his part, say he’ll appeal “to defend the traditional definition of marriage that was approved by Texas voters. … 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.” And Gov. Rick Perry has his back: “Texas voters and lawmakers have repeatedly affirmed the view that marriage is defined as between one man and one woman. I believe the ruling is flawed and should be appealed.”

The move is a startling departure from other state court rulings (all the more surprising, then, that it took place in Texas). Notes the Dallas Morning News: “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.”

J.B.’s attorney, in addition to citing the Full Faith and Credit Clause, noted in his filing that, “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.”

Well, we’re not sure we agree with that, but the outcome is all but deserved: Texas’ marriage ban is on record as violating federal constitutional rights. Not that the ruling overturns the state constitution or anything!

By:           editor editor
On:           Oct 2, 2009
Tagged: , , , ,

  • 16 Comments
    • YellowRanger
      YellowRanger

      I always thought the day this sort of thing happened in Texas wouldn’t come until pigs fly.

      Looks like swine flew…

      Oct 2, 2009 at 9:56 am · @ReplyReply to this comment ·
    • Cam
      Cam

      First Iowa shocks us, and now a judge in TX. Nice!

      Oct 2, 2009 at 10:00 am · @ReplyReply to this comment ·
    • jason
      jason

      @YellowRanger:

      The swine are definitely aloft…

      Oct 2, 2009 at 10:38 am · @ReplyReply to this comment ·
    • John K.
      John K.

      @YellowRanger: lmao!

      Oct 2, 2009 at 1:48 pm · @ReplyReply to this comment ·
    • rf
      rf

      So if one or both of them marry a woman in Texas are they polygamists?

      Oct 2, 2009 at 3:44 pm · @ReplyReply to this comment ·
    • Keif
      Keif

      Marriage is a matter between religious communities and their members. The state has no business promoting religion by giving tax breaks to citizens who have UNDERGONE A RELIGIOUS RITUAL!!! The state has no business profiting from legal administrations of marriages and divorces. We supposedly have this “separation of church and state” condition, right?

      If the state wants to promote families, then it should give tax breaks to adults who have dependants, like children and elderly or disabled household members.

      Oct 2, 2009 at 5:02 pm · @ReplyReply to this comment ·
    • hardmannyc
      hardmannyc

      This is going to be the big one – the case that gets to the U.S. Supreme Court which I think will rule in favor of the couple under due process.

      Oct 3, 2009 at 1:46 pm · @ReplyReply to this comment ·
    • damendo
      damendo

      Living in Tx all my life, and being gay, I am proud of the fact that Judge Callahan would take the step forward that Tx needs. The problem and challenge she has however, will be a big one, because of the “back-ass-wards way things are done ’round here”! But hey, at least there is some sort of movement. Lets keep Abbott and Costello (Greg and Rick) guessing “Who’s on first”!!!!

      Oct 3, 2009 at 7:22 pm · @ReplyReply to this comment ·
    • hephaestion
      hephaestion

      Funny that gay couples can get married across the Rio Grande River in the state of Chihuahua, Mexico, yet still not in Texas.

      Oct 3, 2009 at 7:28 pm · @ReplyReply to this comment ·
    • hephaestion
      hephaestion

      Pardon an error in my post above. I meant to say Coahuila, not Chihuahua: http://en.wikipedia.org/wiki/Recognition_of_same-sex_unions_in_Mexico

      Oct 3, 2009 at 7:34 pm · @ReplyReply to this comment ·
    • David S.
      David S.

      “all the more surprising, then, that it took place in Texas”

      When are (supposedly) politically literate people going to stop being surprised that Texas and California aren’t conservatively and liberally homogeneous?

      Oct 4, 2009 at 4:20 pm · @ReplyReply to this comment ·
    • tjr101
      tjr101

      This judge will most certainly be labeled a “liberal activist” trying to make law.

      Oct 5, 2009 at 7:05 pm · @ReplyReply to this comment ·
    • Guard War Games
      Guard War Games

      its about time that more states rule it unconstitutional! there isn’t much difference between gay/straight….and the bible does say shouldn’t lie w/ man like a woman but you should read a little further where it reads that you shouldn’t wear a multi fabric cloth so hope you aren’t wearing your favorite cotton/polyester blended shirt

      Oct 7, 2009 at 12:55 am · @ReplyReply to this comment ·
    • HH
      HH

      Awesome! It’s good to hear that at least one judge in Texas is sensible and sees the wrong in not allowing gays to marry. Now if only their state constitutional ban of same-sex marriage could be overturned!

      Oct 7, 2009 at 9:46 am · @ReplyReply to this comment ·
    • Brian
      Brian

      Jesus will win on Appeal.

      Oct 7, 2009 at 4:51 pm · @ReplyReply to this comment ·
    • Ty
      Ty

      All this crap about marriage brig exclusive to a man and a woman is a bunch of crap! Seriously, what does it effect anyone if gays get married!? Let me tell you- NOTHING!! It does NOTHING to anyone except the people being married! It makes no sense why people hatebgays and won’t allow them to marry- and this is the reason why- they’re all these religios morons who can’t get it Through their heads that religion is FAKE and we MADE IT UP!! We wanted to feel like we had a purpose and that gave birth to religion, and pretty much all religion does is try to tell everyone to be the exact same as everyone else and being different is wrong.

      Dec 9, 2009 at 12:33 am · @ReplyReply to this comment ·

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