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. rafflaw,

    How is it ‘separate but equal’ if we refer to all marriages as civil unions? I agree that if we call same sex marriage something different, that’s not right, but getting the government out of marriage altogether seems fine to me if everyone has the same rights.

  2. I have to admit that I have very little patience for anyone who cannot accept two people wanting to be married. The reason we just can’t leave marriages up to the religions to handle is that many religions won’t allow two men or two women marry. The issue is a civil right matter. Two men should have the same rights as a man and a woman do. Calling it a union is denegrating the two people who want to marry. To me, calling marriages civil unions is akin to a “separate but equal” mentality.

  3. Professor Turley, I believe that the title to this post is a bit misleading; “Rules Texas Same-Sex Marriage Unconstitutional” gives the impression that the judge supports the ban [of same sex marriage], when, from my understanding, the ruling struck a blow to the ban itself…I know we all joke about Texas, but I think it’s important to highlight the fact that there are some progressive judges in Texas and that the state is indeed gravitating toward the center in a lot of ways.

    I do agree with you in that the word “marriage” needs to be removed from secular unions. Marriage should be left to religion, if the Episcopalians wish to allow same sex marriage and Catholics don’t, it’s their choice…

  4. Gyges,

    That’s fine, I can respect your position, I just don’t share it.

  5. Tom,

    Well said.


    I think that Tom is right on point here – and while I agree that symbols are important, I don’t think that what the government says should have any impact on the symbolic meaning of anyone’s marriage. If the government decided that it was going to call diplomas something different, it would not effect how I feel about my Ph.D. (And it has nothing to do with the piece of paper, either). Maybe it’s my training as a mathematician (we’re very precise about the meaning of words), but it seems to me that using such an emotionally and symbolically charged word in what (to me) should be a dispassionate legal matter is counterproductive.

  6. I’m glad to see that Prof. Turley came to generally the same conclusion as I did a while ago about the term “marriage” and the government. I actually agree with George W. Bush when he said, “Marriage is sacred.” Exactly – it’s a sacrament. I don’t want the government interfering in who can receive sacraments like first communion, who can become a priest and who can get last rights. Why should the government have a say in who receives the sacrament of marriage in a church?

  7. Slart,

    Words are symbols. Symbols are much more important to some people then others. Think about the value some people place on their physical diplomas. Think about the fury surrounding the issue of flag burning.

    No matter how little I care about the symbol of the word marriage, I don’t think that anyone should compromise the symbolic meaning of marriage just to get the legal benefits. Especially if it’s unnecessary, like it is in this case.

  8. WOW, lots of good argument folks. Thanks. I’m still not sure how someone else’s marraiage (gay, straight, interacial, inter-religious, etc.) has an impact on me. I’m hetero and honestly can’t watch two men kiss (even on the TV News) but as long as I have the right to turn my head I don’t know why two people who are in love cannot be MARRIED. As for CHURCH recognition, I don’t see why that aspect would be important since most churchs think homosexuality is an abomination anyway. In fact I think all legal marriages should be outside the church and in the courthouse. Why should religion be involved anyway in a country that advocates the seperatation of church and state? The arguement can be made that one religion should be valid and not another. Should Buddist marriages be recognized as a Catholic or Protestant or Jewish marriage? As far as comity is concerned I’m not sure we can pick and choose which laws we agree with and which we don’t without making a real mess out things.

  9. Gyges,

    I would still hold the same position were the semantic issue divorced from the gay marriage issue (pun intended), although I wouldn’t think that the issue was important enough to care about. I would also take the same position in you hypothetical about the Miscegenation laws – if calling every partnership a civil union had helped some people to come to terms with extending rights to a previously disenfranchised group, it seems to me to be a harmless concession.


    Thank you for the explanation. I’m starting to see that the interplay of state and federal law here is pretty thorny. Another question: what are the federal implications of a state recognizing same-sex marriage? Can a gay couple in Iowa file a joint tax return? What about a gay couple in, say, Utah who were married in Iowa?

  10. billy,

    I don’t care how much you beg, I will not be your bitch. So quit trying. Maybe someone would like your advances. I suggest that you go to SFO and try those pick up lines there.

  11. billy,

    I am hurt now, I feel as a jolted lover, now you are spurning the object of your affection. You bitch.

  12. billy 1, October 2, 2009 at 2:33 pm

    AY, your “”sarcasm” and “caustic” wit is duly noted. This could be the “impediment” that keeps Mr. Wonderful from appearing at your doorstep..

    Hopefully honey, that Mr. Wonderful is not ewe.

  13. Slartibartfast,

    Full faith and Credit: Article IV, Section 1 of the United States Constitution, commonly known as the Full Faith and Credit Clause, addresses the duties that states within the United States have to respect the “public acts, records, and judicial proceedings” of other states. According to the Supreme Court, there is a difference between the credit owed to laws (i.e. legislative measures and common law) as compared to the credit owed to judgments.[1] Judgments are generally entitled to greater respect than laws, in other states.[2] At present, it is widely agreed that this Clause of the Constitution has little impact on a court’s choice of law decision,[3] although this Clause of the Constitution was once interpreted differently.[4]

    Comity: In law, comity specifically refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations (or other jurisdictions within the same nation), particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. The term refers to the idea that courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction. Part of the presumption of comity is that other jurisdictions will reciprocate the courtesy shown to them. Many statutes relating to the enforcement of foreign judgments require that the judgments of a particular jurisdiction will be recognized and enforced by a forum only to the extent that the other jurisdiction would recognize and enforce the judgments rendered by that forum.


    I may be off base here, but I think comity forces a states to recognize a marriage union even if it is repugnant to the states own laws. This would include such debts a gambling where one state would not honor it under the FF&CC they would be forced to under the comity. Just a shot but hey.

  14. Slart,

    If this was a case of newly involving the state in “marriage”
    I’d agree with you with no caveats. However, since marriage is as much a legal term as it as a social one, I just don’t see any reason why we should change it. Did mixed race couples have to compromise when fighting anti-Miscegenation laws?

    To be honest I actually would probably even agree with you if you separate it from the gay marriage issue.

  15. AY, your “”sarcasm” and “caustic” wit is duly noted. This could be the “impediment” that keeps Mr. Wonderful from appearing at your doorstep..

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