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History of same-sex marriage rulings in Texas

By Gheni_Platenburg
May 28, 2011 at 12:28 a.m.


Although same-sex marriage is banned in Texas, the controversial issue continues to make waves in both the legal and political arenas.

In 2005, both same-sex marriage and civil unions were banned under Proposition 2 (2005), a voter-approved amendment to the state constitution and the Texas Family Code.

However, this has not stopped related issues from arising.

On Oct. 2, 2009, state District Judge Tena Callahan, of Travis County, ruled that two homosexual men from Texas who wed in Massachusetts could legally end their marriage and that the state's prohibition against same-sex marriage violated the federal constitutional right to equal protection, clearing the way for both Texas' first same-sex divorce and a legal challenge to the same-sex marriage ban.

Texas Attorney General Greg Abbott intervened in the divorce case, arguing that because Texas doesn't recognize gay marriage, a Texas court can't dissolve one through divorce.

On Aug. 31, 2010, the Fifth Court of Appeals in Dallas sided with Abbott, reversing the lower court's ruling and finding that the Texas constitutional ban on same-sex marriage does not violate the Equal Protection Clause of the Fourteenth Amendment.

Furthermore, the court ruled that district courts in Texas do not have subject-matter jurisdiction to hear a same-sex divorce case and instructed Callahan to dismiss the men's case.

However, on Jan. 7, a three-judge panel of the Austin-based 3rd Court of Appeals issued a conflicting ruling in a similar case involving the divorce of two women who were married out of state, finding that Abbott did not have standing to intervene in a same-sex divorce case and allowing the lesbian couple, who also married in Massachusetts, to divorce.

As of May 26, no appeal had been filed in the same-sex divorce case that came before Callahan.

Rep. Warren Chisum, R-Pampa, who spearheaded Proposition 2 (2005), thinks the same-sex marriage issue should have been closed in 2005.

"For a court to go in and override the will of the people is a misuse of our justice system," Chisum said. "This is a government of the people, by the people and for the people, and the people have spoken."

Of those people who voted, 76.25 percent voted in support of the statute, while 23.74 percent, voted against it.

"I believe the people in the state of Texas and across the United States believe marriage is sacred and should not be degraded by something other than the marriage of one man one woman," Chisum said.

The topic of legalizing same-sex marriages also is the subject of intense national debate.

Signed into law by former President Bill Clinton, the United States Congress passed the Defense of Marriage Act on Sept. 21, 1996, which defined marriage as a legal union between one man and one woman.

Under federal law, no state or other political subdivision within the United States would be required to recognize a same-sex relationship considered a marriage in another state.

One of six states that ultimately chose to allow same-sex marriages, Iowa first created an amendment to its state constitution in 1997 that precluded same-sex couples from getting married.

A lawsuit filed in 2007, prompted Polk County, Iowa, District Judge Robert Hanson to rule on Aug. 30, 2007, that the preclusion of same-sex marriages was unconstitutional on the grounds of due process and equal protection.

The Iowa Supreme Court affirmed Hanson's ruling on April 3, 2009, on the basis of equal protection.

"We were to basically not discriminate essentially on the basis of sexual-orientation, as it related to the administration of marriage rights," said Hanson, who said he has performed 160 same-sex marriages since the Supreme Court handed down its ruling. "My own belief is that it is a duty to perform marriages. A lot of judges don't share that view. They believe it's optional."

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