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.”
In 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.
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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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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.