The decision Thursday by the Texas 4th Court of Appeals ruling came two days after state District Judge Barbara Nellermoe allowed the divorce case to continue, ruling that the state’s ban on same-sex marriage is unconstitutional, reports the Austin American-Statesman.
Nellermoe ruled in 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.
Nellermoe identified three portions of the Texas Family Code as unconstitutional, as well as Section 32 of the Texas Constitution.
Because Texas doesn’t recognize same-sex marriages, there’s 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.
“Texas has created a suspect classification of children who are denied equal protection of the law under the Fourteenth Amendment,” Nellermoe wrote, ruling that such a practice violates the Equal Protection Clause.
The appeals court agreed, staying Nellermoe’s ruling while it also considers Abbott’s request to vacate the decision as a violation of the district judge’s authority.
The appeals court also set a May 5 deadline to receive briefs in the case.