In 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.
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