State Judge Rules Texas Same-Sex Marriage Ban Unconstitutional

 Posted on May 12, 2014 in Divorce

A Texas judge recently ruled that the state's same-sex marriage ban is unconstitutional. In February, a federal judge made the same ruling in a different case, striking down the state's marriage ban law.

The state case involves a couple who were married in Washington D.C. in 2010. One of the women became pregnant via artificial insemination. The baby was born in February 2013. Shortly after that, the couple split up and the biological mother sought to retain sole custody of the baby since the other woman is neither a biological or adoptive parent to the child. However, since Texas does not recognize same-sex marriages, there is no legal process in place to divorce.

According to law, children who are born in a marriage are considered a child of both spouses. This parental presumption also holds true in states that recognize same-sex marriages. In states that do not recognize same-sex marriages, like Texas, then the law says the parent who gave birth is the child's only parent.

But the judge in this case said the Texas Defense of Marriage Act is unconstitutional and that this divorce case can proceed forward. In her ruling, the judge wrote that the law violates the Equal Protection Clause in the Constitution:

"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."

The judge also cited the recent federal ruling that was made, writing ". . . 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."

When the original law was passed in 2005, it passed by more than 75 percent of the vote. But an increasing number of people in the state appear to be in favor of changing the law. A recent survey by Texas Tech shows that almost half of all Texans think same-sex marriage should be recognized.

Whether in straight or same-sex marriages and relationships, when a couple is splitting up and there are children involved, child custody battles can become very contentious. If you are facing a child custody issues, contact an experienced Austin family law attorney to find out what your parental rights are.