Surprise!

A judge in the conservative heartland of Texas struck down yesterday the state's constitutional ban on gay marriage.

But it's actually not so surprising. The judge, Tena Callahan of the 302nd Family District Court, is a Democrat, elected in 2006. Her decision doesn't represent a shift in cowboy thinking–rather, it's just the product of a recent left-leaning election.

And it won't mean anything for Texans. Michelle O'Neil, a Dallas attorney with over 18 years of family law experience, helps put things in perspective:

[T]he Dallas Court of Appeals is considered to be one of the most conservative courts in the State. Dominated by nine republican justices who are elected over a five county region consisting not only of Democrat-leaning Dallas County, but also uber-conservative Collin County and Grayson, Hunt, Rockwall and Kaufman counties. Likewise, the Texas Supreme Court is made up of justices mostly appointed by either Governor Perry or Bush and it is largely considered to be one of the most conservative groups of justices on the Court ever.

Although many will consider this ruling to be a win for the GLBT sector, based on the level of conservatism of the justices in line to hear this case, it is extremely doubtful that this ruling will last very long.

Because the case will be appealed, the Texas constitutional ban on gay marriage isn't going away anytime soon.

But while the opinion won't help gay couples in Texas, it still has two important effects:

1. Spotlights the issue.

The 302nd Family District Court of Texas does not nationally influence the law on gay marriage. Nevertheless, in less than 24 hours after the decision, national mainstream media outlets have covered the story, including the Associate Press, Reuters, and the Wall Street Journal. Evidence suggests that the more people talk about gay marriage, the more support it gets.

2. Shows a new way to challenge gay marriage bans.

Most states, like Texas, ban gay marriage. Lawsuits in these states challenging the bans outright usually fail.

But the Dallas case was unique because the person bringing the suit argued not for the right to get married, but for the right to get divorced. The judge ruled on a jurisdictional issue. She said that because the full faith and credit clause gives her court “jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction,” the state ban on gay marriage that disallows her court from doing so must  violate the U.S. Constitution's equal protection clause.

Because gay marriage laws will change mostly on a state level, creative challenges to these laws give states with less conservative appellate courts more avenues to allow same sex marriage. Just as the Wisconsin legislature tried to work around their state's constitutional ban, sometimes all a judge needs is a plausible legal justification for invalidating a discriminatory law.

[Cross-posted at the Gay Couples Law Blog, which discusses same sex family law, estate planning, and taxes.

Gideon Alper

Gideon Alper

1 Comment

Leave a reply