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Dallas Judge Declares Texas’s Ban on Same-Sex Marriages Violates the Federal Constitution

Courts sometimes find themselves in a bind: Stray too far from public opinion (even if constitutional principles seem to compel doing so), and they risk vilification and loss of the public’s confidence on which they, to an extent, depend for legitimacy. But ignore the reality of¬† the litigants before¬† them, and they run the risk of irrelevance.

The breaking news that a Dallas judge has just recognized the right of a same-sex couple to divorce by finding that the state’s ban on same-sex marriages violates the U.S. Constitution’s guarantee of equal protection highlights the tension between the court’s reliance on public good will and the need to solve problems. As I wrote recently, couples at the end of a marriage must divorce in order to effect a clean separation and to avoid issues — like bigamy — that can surface when they find another partner. Yet in the case I posted on, and Indiana judge denied the divorce (because the court can’t dissolve a marriage that doesn’t exist) while expressing frustration at the result the court felt compelled to reach.

Texas District Judge Tena Callahan wanted to give the couple what it needed, so she did. But at what cost? Since Texas has a state constitutional ban on gay marriages, the only way to get jurisdiction over the case is to vault over the state’s ban and declare the law invalid under the federal constitution. So that’s what Judge Callahan did, invoking the U.S. Constitution’s guarantee of equal protection under the laws to get there.

This decision reminded me of a Florida court’s ruling that the state’s ban on gay couple’s adopting children violated the Florida state constitution’s right to equal protection under the law. In both cases, a court saw a problem that needed solving — especially in the adoption case, where allowing the adoption by long-term foster parents was clearly in the children’s best interest. But appellate courts, at a remove from these actual problems, often take a more dispassionate view of the law and the facts.

Judge Callahan has an argument (at least on the merits; I’m trying to find a copy of the decision, if one exists, to analyze the persuasiveness of her opinion),1 but decisions like this risk creating bad precedent — in theory, this case, because grounded in the federal constitution, could go all the way to the Supreme Court. Did Judge Callahan consider this in trying to solve the problem before her? Should she?

  1. If I do, I will post my analysis.
  1. October 4th, 2009 at 10:41 | #1

    Florida’s right to equal protection? Why doesn’t it protect the poor kid’s right to have parents?

    What if the kid sues Florida for depriving him/her of the right to have a good home?

  2. John Culhane
    October 4th, 2009 at 11:42 | #2

    Assuming you mean “the parents’” right to equal protection (not “Florida’s”), you raise a good point. Here are kids (more than one in this case) who have been with these foster parents for years. If the parents can’t adopt, they could be taken by others who are willing to adopt — not, from a bonding perspective, what you want.
    To answer the interesting legal question you raise, the kids’ claim would be stronger (and sadder) if they were actually taken from the same-sex couple and moved into a group home or to another family with whom, at their age, they’d be less likely to bond. Even now, though, they have an argument that the threat of being moved is a sufficient injury, and that a court should rule that any law that permits this uncertain situation harms kids. But that will surely be the basis of argument in the Florida Supreme Court in any case.
    Thanks for the comment.

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