State district judge finds Texas’ ban on gay marriage unconstitutional

A judge in Dallas has held that the state’s constitutional ban on gay marriage violates the 14th Amendment. In an order signed today in In the Matter of the Marriage of J.B. and H.B., 302nd District Judge Tena Callahan held that Texas Constitution Article 1, §32(a), which provides that “marriage in this state consists only of the union of one man and one woman,” violates the 14th Amendment to the U.S. Constitution. Callahan further held that Texas Family Code §6.204, which prohibits the state or a state agency or political subdivision of the state from recognizing a same-sex marriage, violates the 14th Amendment. She prefaced those findings by writing that she was ruling "[o]n the limited issue of whether the Court has jurisdiction to divorce parties who have legally married in another jurisdiction and who otherwise meet the residency and other prerequisites required to file for a divorce in Dallas County, Texas." Callahan found that she has jurisdiction to hear a suit for divorce of two men legally married in another jurisdiction and struck the plea to the jurisdiction filed by the Texas Office of the Attorney General. Attorney General Greg Abbott, who intervened in the case, writes in a statement that he will appeal the ruling. “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% of Texas voters.” Voters approved the constitutional provision in November 2005. Peter Schulte of Schulte & Apgar in Dallas, attorney for one of the men involved in the divorce case, did not immediately return a telephone call for comment.
-- Mary Alice Robbins

Comments

[Aliaa]

Our corn looked like the one on the right! Has setmohing to do with pollination and how each little silk goes to its own kernel. Some were unfulfilled ..Left by Susan a.k.a. Leslie's Mom on October 6th, 2005

[texaslawyer.typepad.com]

State district judge finds texas ban on gay marriage unconstitutional.. OMG! :)

[James Murray Robertson III, Dallas]

It's is time the courts stop wasting the taxpayers time and money trying to put their self interests and beliefs above the laws that were created by the majority. Judge Callahan should resign her post and run for the house where she can be involved in the legislative process if that is her desire.This is still a democracy albeit a dreadfully poor example of one as of late.

[Corby Considine, Midland]

I love the phrase "the Founders never intended". Gosh, the Founders never intended for there to be life without slaves, or for women to vote, or for the Griswolds to be able to buy contraceptives. The Texas Constitution exempted from forced sale one cart and one horse. Shockingly a judge ruled that meant a car! C'mon now. It's 2009. Corby Considine, Midland

[Matthew Reynolds, Houston]

It's not judicial activism if the judge is following the law; which is what she did. and what about the morality of treating a group of tax-paying Americans as second class citizens. It's disgusting and even more sad that so many people turn a blind eye to this, blindfolded by their own prejudices and bigotry and scrambling for whatever excuse they can come up with for this obvious discrimination.

[Art Kedzierski, Dallas]

I'm always confused when someone gets angry about 'judicial activism'. It's a ridiculous and intrinsically redundant phrase. Merriam Webster defines "judge" as a verb: to form an opinion about through careful weighing of evidence and testing of premises, or to determine or pronounce after inquiry and deliberation. "Judging" is by it's very definition an activity, not a passive stance. I'm not sure what these people think it is judges actually do.

I'm also disturbed when people claim that judges have no right to change things; that the founders of our great nation didn't see fit to write X into the law of the land, so it must not be valid to add it now; or that they wrote X and it is forever inviolate. In reality, the founders of our great nation, in their wisdom, foresaw that future Americans might need additional laws or want to modify those that existed already. It is the reason we have a tripartite system of government so that future generations of Americans could constantly reassess and reassert their legislative and judicial prerogative and write laws that THEY saw fit to meet the needs of their day, not necessarily those of their ancestors.

Which brings me to another point: who actually believes that laws are inviolate and define a culture when even a casual examination of history indicates that laws reflect the culture and mores of a given civilization at any given time. Laws evolve with civilization. Oh... there's that word: 'evolve'. Maybe these are people who don't believe in evolution of any sort on general principal; change adverse individuals who are scared by the bright lights of the future.

Well, the future is mutable and so are the laws of the land. Accept it. I just hope that there will continue to be brave, judicially active judges who will fairly weight, deliberate and keep the laws of the land in line with the needs of contemporary civilization and not our long dead ancestors.

[Thomas Stayart, Dallas]

Thank you Judge Callahan for this very constitutional decision.
An individual's right to commit to whoever they want has nothing to do w/ morality. Denying that right has everything to do w/ religious-based fear. Declaring that "the founders" never intended to allow same sex unions is totally baseless.
Finally, just because a majority of Texans voted down this right, does not make it constitutional.

[John B. Harle, Bellville]

The founders never intended for there to be divorce and slavery was ok with them. Yet we certainly found ways to get around their prejudices. Why is marriage, a "sacred" institution, a concern of the state to begin with? Everyone should have a civil union and go to a church for marriage.

[Nancy McConnell, Mineral Wells]

This seems very straight forward, if same sex marriage is not allowed or recognized in Texas then obviously there is no legal standing for a divorce.
This is another activist judge trying to find a sneeky, under-handed way of circumventing the will of the people of our state. I hope the AG and appellet court say to her in no uncertain terms not just no, but hell no! It's time to rein in activist judges that think they know more about what we need than we the people do.

[Art Kedzierski, Dallas]

I'm always confused when people throw out the term "judicial activism". To be a judge is to be activist (i.e., take action) by its very definition. Merriam Webster defines 'judge' as 'to form an opinion about through careful weighing of evidence and testing of premises' or 'to determine or pronounce after inquiry and deliberation'. It is a verb; active, not passive.

There are many things it never occurred to the founders to place into law. In their wisdom, however, they developed both a legislative and judicial system capable of expansion and self-correction. Law has always been a reflection, an encoding of the prevailing cultural mores.

Your various complaints don't appear to be with judges at all, but with our ever changing culture.

[Drew Knowles, Nacogdoches]

In what way does the ban on gay marriage violate the 14th Amendment? due process? equal protection? I don't see it.

[Murphy S. Klasing, Houston]

Nothing like Judicial Activism. Doesn't the State Bar send these people to a "judge school?" Maybe they should include in that school a lesson on following the law.