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Judge in same-sex divorce case rules Texas gay marriage ban unconstitutional

Thursday, April 24, 2014
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SAN ANTONIO, Texas — A state district judge in Texas has ruled that the state’s ban on same-sex marriage is unconstitutional, “paving the way for a San Antonio couple’s divorce proceedings and subsequent child custody battle to continue.”

TexasIn a ruling issued Tuesday, Judge Barbara Nellermoe identified three portions of the Texas Family Code as unconstitutional, as well as Section 32 of the Texas Constitution, reports the San Antonio Express-News.

The ruling comes in response to a challenge filed by a lesbian couple married in Washington D.C., in 2010 and who are now seeking a divorce in Texas. One parent is seeking sole custody of their child, conceived through artificial insemination, while the other parent is seeking joint custody.

Because Texas doesn’t recognize same-sex marriages, there’s also no legal avenue available to pursue a divorce, and in such cases where the state does not recognize the couple’s marriage, the child is only considered legally the child of the birth mother.

But in her ruling, Nellermoe wrote that such a practice violates the Equal Protection Clause.

“By denying their parents the right to marry, Texas has created a suspect classification of children who are denied equal protection of the law under the Fourteenth Amendment,” Nellermoe wrote.

Citing a federal judge’s decision in February striking down Texas’ same-sex marriage ban, Nellermoe wrote that “in a well-reasoned opinion by Judge Orlando Garcia, the federal district court found that a state cannot do what the federal government cannot — that is, it cannot discriminate against same-sex couples.”

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It was not immediately clear if the ruling would be appealed, but observers said an appeal was likely.

Late Wednesday, the State Attorney General’s Office filed a motion to intervene in the case, saying: “The state of Texas seeks the opportunity to defend its laws and statutes before this court.”

Nellermoe’s ruling does not have any broader effect for same-sex couples seeking to marry unless an appellate court makes a ruling on it, says Emily Hecht-McGowan, director of public policy at the Family Equality Council.

A separate same-sex divorce case involving couples from Austin and Dallas was argued before the state Supreme Court in November but the court has yet to issue a ruling.

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