Texas Judge Rules Gay Men Can Secure Divorce in Texas — Rules Texas Same-Sex Marriage Unconstitutional

clip_image001_0000In what could be an important challenge to same-sex marriage laws, District Judge Tena Callahan has ruled that two gay men married in Massachusetts may divorce in Texas. In so doing, Judge Callahan ruled the state same-sex marriage law to be unconstitutional.

In ruling that the court “has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction,” the court found that Texas cannot statutorily barred the right for couples to have their marriage recognized (and dissolved) in another state.

Texas Attorney General Greg Abbott has vowed an appeal. In March 2003, a Texas court became the first one outside Vermont to grant the dissolution of a civil union, but the court reversed his decision after Abbott challenged it.

This is the case that we have previously discussed as the greatest concern for same-sex marriage opponents: that other states will be forced to recognized thousands of such marriages under the full faith and credit clause. I do not agree that the full faith and credit clause clearly demands such recognition and it would be a political advantage for gays and lesbians not to push the issue at this time. There has been a long debate over existence and scope of an unexpressed exception under the clause for public policy differences between the states.

Of course, with Republican power on the wane, the religious right may try to rally the forces around a federal constitutional amendment — the ultimate rejection of state rights and federalism values in my view.

Currently, Iowa, Massachusetts, Connecticut, Vermont, and Maine are states that recognize same-sex unions or marriages. Washington, D.C. has also voted to recognize such marriages. California does recognize marriages that occurred before Proposition but no longer allows such marriages to occur.

As I have written before, I believe that the solution to this debate is to be rid of the term “marriage” in public records and to adopt a universal “civil union” standard for all couples.

For the full story, click here.

42 thoughts on “Texas Judge Rules Gay Men Can Secure Divorce in Texas — Rules Texas Same-Sex Marriage Unconstitutional”

  1. Billy,

    IA, MA, CN, VT, ME, and the District of Columbia.

    Professor Turley,

    I don’t understand why you think the ‘full faith and credit’ clause doesn’t clearly require recognition of same-sex marriages from other states (although I certainly agree that attempting to fight for recognition this way is bad politics).

  2. Geeze billy,

    I don’t know but I am a little slow on the up take and my reading skills a little sub par but suffice it to say I looked at the binary inputting coding device and came up with this today and of all places out of the article.

    “Currently, Iowa, Massachusetts, Connecticut, Vermont, and Maine are states that recognize same-sex unions or marriages. Washington, D.C. has also voted to recognize such marriages. California does recognize marriages that occurred before Proposition but no longer allows such marriages to occur.”

  3. Gyges,

    I believe that couples should call the bond between them whatever they want. I just don’t think that the state needs to use a term that is, as you said, loaded with meaning and connotation – most of which, I would argue, is irrelevant to the legal rights currently attached to couplings that we are calling marriage. I have no need to rub it in the noses of gay marriage opponents as long as all couples have the same rights and if a ‘civil union’ is the only bond recognized by law, there’s no ‘separate but equal’ issue. Isn’t changing the name of a legal contract a small price to pay to extend rights to everyone? Doesn’t the mere fact that the word is loaded with meaning and connotation (presumably different meanings and connotations to different people) argue against using it in the law where we would like things to be as clear and unambiguous as possible?

  4. Gyges, “the off chance I’m sincere”. I am not trying to be flip. I am legitimately asking the question. Because my value system and yours don’t coincide does not mean I am an antagonist. I am a spirited blogger, having fun and attempting to exercise my dormant intellect..

  5. Billy,

    On the off chance that you’re sincere…

    This isn’t a simple issue of “what’s the law?” In some states “man and woman” is explicate, in others it’s assumed, and in others places gays are allowed to get legally married.

    The issue is instead, by what rational can any state allow some people to be able to enter in a contract that has many legal implications and privileges, and then deny that right to others based solely on the gender of the parties involved?

  6. This just blows me away. How many Mountains and Valley must be crossed before the correct decision is erected? oops made?

  7. Gyges, I’m not trying to deny “equality”. I am as tradition bound as the next Catholic. I appeal to “you”, to share with me the governments interpretation of what a “marriage contract” is. I am ignorant myself in this matter. I am not an attorney, that is why I ask you. I am not trying to be contentious.

  8. Slart and Queen,

    Now I agree that whatever we call the contracts, it should be available to all people regardless of sexual orientation. My question is why shouldn’t gay people be able to call it Marriage?

    It’s a word loaded with meaning and connotation. As a sign I once saw said (It was held by a woman) “I didn’t ask her to civil union me.” We already let churches decide who they’ll marry, and who’ll they’ll consider married. I wasn’t able to get married in a few churches my wife and I looked at, because I was an atheist. The Catholic church has very specific beliefs on the legitimacy of second marriages. I don’t see why it’s necessary to change the name of the legal contract just because we’re including a group of people previously denied.


    That’s an appeal to tradition. I’m not talking about what it is, but what it should be. “Well that’s the way it is” is a terrible reason to deny equality.

  9. I agree with Professor Turley, I think that the way out of this mess is to differentiate between the legal union of two people and religion-based institution of marriage. Each church can then decide if it wants to recognize same-sex unions, gay couples can get the legal rights they deserve, the rest of us can forget about the issue as unimportant to our daily lives, and the right-wing fundamentalists can think whatever they want about it as long as I don’t have to listen to it…

    Billy and Brenda,

    How does it harm you for same-sex couples to enjoy the rights granted to persons engaged in opposite marriage?

  10. The term “marriage” should be reserved for two people who were joined together in a church-officiated and recognized union. The state should list all unions as “civil unions” in public records.

    There is absolutely no reason to reserve the term “marriage” for heterosexual unions – “marriage” is a church term and should be used for church-sanctioned unions. Let the churches fight over the whether the term can be used for rites officiated by those churches that conduct same-sex unions – the state should stay out of the fray.

  11. Dosn’t the government define marriage as a covenant between a man and a woman? I may be wrong, but how does the government define this union?

  12. Billy,

    O.k. give me your best argument as to why the Government should be allowed to discriminate in this manner. I’ll give you a little warning though, appeals to tradition or religion will get you nowhere.

  13. Gyges, I like you, I really I do. But Brenda and I just don’t see it that way. Maybe you can come our way, eh?

  14. Brenda,

    Tell you what, you use the term Marriage however you want, and the Government will still be obligated to not discriminate against people based on sexual orientation. Marriage is a legal institution as well as a cultural one.

  15. The term Marriage should be reserved for married men and women..the gay community has stolen this term, and they have no right to use it…

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