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to Section One | to Arts & Entertainment
posted Friday, April 25 2014 - Volume 42 Issue 17
Texas state judge strikes down same-sex marriage ban - Echoes federal ruling
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Texas state judge strikes down same-sex marriage ban - Echoes federal ruling

by Mike Andrew - SGN Staff Writer

A Texas state judge presiding over a divorce case involving a Lesbian couple ruled on April 22 that the state's ban on same-sex marriages is unconstitutional.

Texas District Judge Barbara Nellermoe identified three portions of the Texas Family Code as unconstitutional, as well as Section 32 of the Texas 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,' Nellermoe wrote in her ruling.

In February a Federal District Judge also ruled Texas's ban on same-sex marriage unconstitutional, and Nellermoe cited his opinion in her decision.

'[I]n 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,' she wrote.

Texas Attorney General and 2014 gubernatorial candidate Greg Abbott has appealed the federal ruling to the Fifth Circuit Court.

The case before Nellermoe involves a Lesbian couple, 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 on February 19, 2013. Her attorney argued that because Allison Flood Lesh is not the biological or adoptive parent, Kristi Lesh should retain sole custody of the child. Allison Flood Lesh is seeking to split custody of the child.

Because Texas law refuses to recognize same-sex marriages, the Leshes have no legal avenue to pursue a divorce. Nellermoe's ruling clears the way for the proceedings and subsequent custody fight to continue.

According to the San Antonio Express-News, it was not immediately clear if Nellermoe's ruling would be appealed, but observers said an appeal was likely.

On April 23, the State Attorney General's Office filed a motion to intervene in the case, saying: 'The state of Texas seeks the opportunity to defend its laws and statutes before this court.'

Nellermoe's ruling does not have any broader effect for same-sex couples seeking to marry unless an appellate court makes a ruling on it, says Emily Hecht-McGowan, director of public policy at the Family Equality Council.

In a separate case involving couples from Austin and Dallas, attorney James J. 'Jody' Scheske argued before the state Supreme Court in November that same-sex divorces should be allowed. The court has yet to issue a ruling.

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