Friday, October 2, 2009

Commentary on yesterday's ruling by Texas judge Tena Callahan that state's same-sex marriage bans violate 14th amendment

10/02/09 WordinEdgewise, by law professor John Culhane:

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.

10/02/09 Leonard Link, by law professor Arthur Leonard:

State trial court decisions are interesting in themselves and may affect the rights of the parties if not reversed on appeal, but otherwise have no precedential value. Only appellate courts can issue decisions that are binding on other courts, and only the highest court of a state can issue decisions binding on all the courts of the state, so it will be a while before we can know how important this ruling is.

10/02/09 Alliance Defense Fund press release:

District Judge Tena Callahan issued her ruling in a state court in Dallas yesterday to strike down the Texas marriage amendment, as well as the state DOMA, stating that the state ban on same-sex “marriage” violates the federal constitutional right to equal protection under the Fourteenth Amendment to the U.S. Constitution. This ruling marks the first time that a state court judge has struck down marriage laws based on the U. S. Constitution ... ADF attorneys, who are expected to file a brief in opposition to Callahan’s ruling, are also defending a similar attack on marriage in Oklahoma, where voters approved their state amendment defining marriage as between one man and one woman by 76 percent in 2004. In O’Darling v. O’Darling, a “divorce” is being sought by two women allegedly “married” in Canada. That matter is currently pending before the Oklahoma Supreme Court.

10/02/09 Gay Couples Law Blog, by attorney Gideon Alper:
Because gay marriage laws will change mostly on a state level, creative challenges to these laws give states with less conservative appellate courts more avenues to allow same sex marriage. Just as the Wisconsin legislature tried to work around their state's constitutional ban, sometimes all a judge needs is a plausible legal justification for invalidating a discriminatory law.

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