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Thu Apr 24, 2014, 05:28 PM

Second TX Judge Rules State Marriage Ban Unconstitutional

In February, a federal judge ruled that the Texas ban on same sex marriage was unconstitutional. Today, a state district court judge made the same ruling http://www.bilerico.com/2014/04/second_tx_judge_rules_state_marriage_ban_unconstit.php#ObTqbk1I4WUaHAsL.99

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.

Lawyer Emily Hecht-McGowan of the Family Equality Council told the Chronicle that the decision will not apply to same-sex couples across the state unless an appellate court makes a ruling to that effect.

Judge Nellermoe's decision comes just as the Lone Star State is reaching an important milestone on marriage equality: this week, a new independent poll revealed that for the first time, more Texans support same-gender marriage than oppose it. To give you an idea of just how big a deal that is, the state's 2005 constitutional marriage discrimination amendment passed with more than 76% of the vote

I do not trust either the Fifth Circuit or the Texas Supreme Court on this issue but it is harder to ignore two separate courts finding that the law is unconstitutional. There is no formal written opinion but you can read the judgement and the findings of fact and conclusion of law in the link.

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