SHOCK: Texas Judge Rules Gay Marriage Ban Is Unconstitutional

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.

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!