Dallas Judge Throws Out Gay Marriage Ban

A Dallas District Judge today ruled the state’s ban on gay marriage is unconstitutional. Ruling in a case of two gay men married outside of Texas seeking a divorce, state District Judge Tena Callahan ruled that the ban, enacted by the voters of Texas four years ago violates the U.S. Constitution’s guarantee of equal protection under law.

In doing so, the judge denied to hear arguments from the state’s top lawyer, Attorney General Greg Abbott. Abbott argued that since the state does not recognize gay marriage, it cannot approve a gay divorce. Abbott later said that he would appeal the case.

“The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman,” Abbott said. “Today's ruling purports to strike down that constitutional definition – despite the fact that it was recently adopted by 75% of Texas voters. The Office of the Attorney General will appeal the court's ruling to defend the traditional definition of marriage that was approved by Texas voters.”

302nd Family District Court Judge Tina Callahan

Judge Callahan’s ruling overturns the provisions in the Texas constitution and Texas Family Code stating categorically that marriage is only recognized in Texas between one man and one woman.

The litigants in the case were not named, but lawyer Peter Schulte, representing the man who filed for divorce, told the Dallas Morning News that he was “ecstatic” with the victory.

Governor Rick Perry lashed out at the decision and predicted it would be overturned.

"Texas voters and lawmakers have repeatedly affirmed the view that marriage is defined as between one man and one woman,” Perry said. “I believe the ruling is flawed and should be appealed.  I am confident that Attorney General Abbott and the will of Texas voters will prevail, and traditional marriage will be upheld in our state."

Perry’s opponent in the Republican race for Governor also weighed in on the ruling. Sen. Kay Bailey Hutchison called it wrong, and joined Perry in supporting Abbott’s attempts to overturn it.

“I believe that marriage is between one man and one woman, period,” Hutchison said in a statement. “As a United States Senator, I have consistently voted to preserve the sanctity of marriage and as Governor I will continue to defend traditional marriage.  I applaud Attorney General Greg Abbott’s decision to appeal the court’s ruling and defend the traditional definition of marriage that was approved by Texas voters.”

Cathie Adams, the president of the Texas Eagle Forum, a conservative advocacy group, told the Associated Press that the case was another example of judicial activism.

Judge Callahan is up for re-election in 2010.