Texas State Judge Rules Gay Marriage Ban Unconstitutional In Same-Sex Divorce Case

Texas state district judge Barbara Nellermoe ruled that Texas’ ban on same-sex marriage is unconstitutional. Judge 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 case was brought by Allison Flood Lesh, who was seeking to divorce her wife of three years in order to gain visitation rights for her child.

Because Texas does not recognize same-sex marriages, there exists no legal avenue for legally married same-sex couples to pursue a divorce. In a case where the state does not recognize the couple’s marriage, the child is only considered legally the child of the birth mother.

In yesterday’s 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. “Failure in Texas to afford the same presumption of parenthood to the wife of a child’s birth mother as it does to a husband of the birth mother violates the Equal Protection Clause.”

According to TNCRM:

After the ruling, Texas Attorney General Greg Abbott, running to become the next governor, demanded the state be allowed to defend its law in court. He’ll be appealing the ruling.

There is no indication that same-sex couples in Texas can now marry.

In February, U.S. Federal District Court Judge Orlando Garcia found Texas’ ban on same-sex marriage unconstitutional, but stayed his ruling pending appeal.