A case for a same-sex marriage divorce is the impetus for the ruling
By Tami Fitzgerald
Christian Action League
A Texas District Court judge ruled the State’s marriage laws unconstitutional under the federal Constitution last Thursday. Judge Tena Callahan issued her ruling in a state court in Dallas striking down the Texas Marriage Amendment, as well as the Texas Defense of Marriage Act (DOMA), stating that the state ban on same-sex “marriage” violates the right to equal protection of the laws under the Fourteenth Amendment to the U.S. Constitution. In her one-page ruling, Callahan pegged the decision “on the limited issue” of whether Texas courts can grant divorces to couples legally married in other jurisdictions.
This ruling marks the first time that a state court judge has struck down marriage laws based on the U. S. Constitution. Like many states, Texas has a Defense of Marriage Act (DOMA) and a Marriage Amendment. The DOMA deemed unconstitutional by Callahan prohibits the recognition of any same-sex marriage or civil union, and it bars the state and cities from extending any legal protection or benefits that flow from such unions. The Constitutional Amendment, passed by the Legislature in 2005 and approved by 75% of Texas voters that November, defines marriage as a union between one man and one woman, and it prohibits the recognition of any other type of union.
North Carolina has a similar DOMA, but it does not have a Marriage Amendment in its Constitution. The Democratic leadership of the North Carolina General Assembly has never allowed a vote on a Marriage Amendment, even though it has been proposed for each of the last six years.
The ruling came in a divorce lawsuit between two men whose same-sex “marriage” was performed in Cambridge, Massachusetts in September 2006. The men later returned to Dallas, and in January of this year, they filed for divorce in the Dallas Family Court.
Texas Attorney General Greg Abbott attempted to intervene in the two men’s divorce case, arguing that because a gay marriage isn’t recognized in Texas, a Texas court can’t dissolve one through divorce. Judge Callahan denied the Attorney General’s intervention and said her court “has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction.”
Attorney General Abbott said he would appeal the ruling “to defend the traditional definition of marriage that was approved by Texas voters.” He also said that, “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.”
Texas Governor Rick Perry, who pushed for the constitutional Marriage Amendment in 2005, said that: “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.”
Alliance Defense Fund (ADF) attorneys said they are planning to file a friend-of-the-court brief opposing the Texas court’s ruling. “The government cannot consider issuing a ‘divorce’ for a ‘marriage’ it doesn’t recognize.” said ADF Senior Legal Counsel and Texas native Austin R. Nimocks. “The Texas voters understand that marriage laws promote children having both a mother and a father. This ruling runs contrary to the voice of Texans and the historic purposes behind the state’s marriage laws.”
The gay man suing for divorce, Jeffrey Buck, stated that he is not “a poster child” for efforts to legalize gay marriages in Texas and other states. Appearing on ABC’s “Good Morning America Weekend,” he argued that his petition for a divorce from his “spouse” of three years was not intended to be a “test case” for expanding gay rights. His attorney, Peter Schulte, said: “This is not about gay marriage, this is about gay divorce.” Despite their denials, the case is being heralded nationwide by same-sex marriage advocates as a victory.
Oklahoma’s Supreme Court will consider a similar attack on marriage when it decides a case involving a “divorce” that is being sought by two women allegedly “married” in Canada. Voters in Oklahoma approved their state amendment defining marriage as between one man and one woman by 76 percent in 2004.
The Texas decision is contrary to court rulings on gay divorce in other states whose laws prohibit same-sex marriage. In 2007 the Rhode Island Supreme Court refused to issue a “divorce” to two women “married” in Massachusetts. Just last month, two women “married” in Canada were denied a “divorce” in Indiana because it would have violated the state’s marriage laws.
Currently, same-sex “marriage” is legal only in the states of Massachusetts, Vermont, Connecticut, and Iowa. On January 1, 2010, New Hampshire’s new same-sex “marriage” law will go into effect. Maine’s same-sex “marriage” law, enacted this year, is currently on hold, pending a vote by its citizens in November on the issue.
In addition to the equal protection violation, attorneys for Jeffrey Buck argued that the men had the right to divorce under Article IV, Section 1 of the U.S. Constitution, which states, in part, that “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” Gay activists argue that the clause requires that a valid judgment from one state be enforced in other states regardless of the laws or public policy of the other states.
The disparity between the marriage laws of individual states together with the federal Constitution’s full faith and credit clause point to the need for a federal Marriage Amendment that would uniformly define marriage. Until such clarity is achieved, lawsuits challenging the validity of individual states’ marriage laws will continue to be filed by gay rights activists. They will use same-sex “marriages” performed in states where they are legal as the instrument with which to validate same-sex marriage in states whose laws prohibit it.