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Texas Judge, Deciding Divorce Case, Rules Gay Marriage Ban Unconstitutional

By L. K. Regan

The path to universal legality for gay marriage took an unexpected twist this week as a Texas judge ruled on Thursday that the state's ban on same-sex marriage violates the constitutional promise of equal protection. Not only is this an unusual move within conservative Texas, but the case in question involved not so much a gay marriage as a gay divorce.

The case brought before Judge Tena Callahan, a former family law attorney elected in 2006 as a District Court judge for Dallas, involved a couple, J.B. and H.B., married in Massachusetts in 2006 before returning to Texas to live. Now, the two want a divorce. But Texas has since 2005 had a law, approved by ballot measure, limiting marriage to one man and one woman. This would appear to mean that not only can two men not get married in Texas—they can't get divorced there, either. As State Attorney General Greg Abbott argued in court, since the state doesn't recognize gay marriage, it can't dissolve one via divorce.

In her ruling, however, Judge Callahan held that the divorce should proceed because the ban on gay marriage was itself unconstitutional. She refused Abbott's claim that the fact that the marriage was formed in Massachusetts put it outside her reach, ruling that her court "has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction." And the impact of her ruling is a declaration that the state's laws on gay marriage are a violation of the constitution.

The impact of the ruling is unclear. Attorney General Abbott intends to appeal; he sees the ruling as a direct strike against the 2005 law passed by popular vote. "The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman," Abbott said in a written statement. "Today's ruling purports to strike down that constitutional definition—despite the fact that it was recently adopted by 75 percent of Texas voters." In a similar vein, Texas Governor Rick Perry invoked Texas' public and political resistance to gay marriage: "Texas voters and lawmakers have repeatedly affirmed the view that marriage is defined as between one man and one woman," Perry said in a statement. "I believe the ruling is flawed and should be appealed." As with so many court challenges to gay marriage bans around the country, this court case's implications will be decided on appeal.

One person who sees this case outside the vitriolic political context is J.B., one of the husbands who went to court in an attempt to end his marriage. "Some have called for this to be a day of victory or a cause for celebration," J.B. said in a statement released by his attorney. "It is actually a day of great personal sadness as a chapter to my life ends... This is the common ground on which I stand with any person who has faced the end of their marriage."