April 25, 2014
A state judge has ruled that Texas’ same-sex marriage ban is unconstitutional. This is the second decision striking down the state’s ban – the first was a federal court ruling which is on appeal to the Fifth Circuit Court of Appeals.
The decision came in a case of a couple seeking to divorce in the state. Bilerico reports:
A state district judge has ruled that Texas’s 2005 voter-approved marriage discrimination amendment is unconstitutional. The ruling comes two months after a federal judge reached the same conclusion in a separate case.
The Houston Chronicle reports:
Judge Barbara Nellermoe, in a five-page ruling released Tuesday, pinpointed three portions of the Texas Family Code as unconstitutional, as well as Section 32 of the Texas Constitution. 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.”
The latest ruling comes in response to a same-sex divorce lawsuit that was filed in Bexar County in February by Allison Leona Flood Lesh and Kristi Lyn Lesh, who were married in Washington, D.C., in August 2010.
Kristi Lesh became pregnant through artificial insemination during the marriage and gave birth Feb. 19, 2013. Her attorney argued that because Allison Flood Lesh isn’t the biological or adoptive parent, Kristi Lesh should retain sole custody. Allison Flood Lesh is seeking to split custody of the child.
Because Texas doesn’t recognize same-sex marriages, there’s also no legal avenue available to pursue a divorce.
As expected, Greg Abbott — the state’s extremely anti-gay Republican attorney general, who also happens to be running for governor — plans to appeal the ruling.
The opinion can be read here, via Kathleen Perrin and Equality Case Files.