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Dallas Judge: Ban on Gay Marriage and Divorce Unconstitutional: UPDATE

Dallas 302nd state District Judge Tena Callahan ruled Thursday that the state’s bans on same-sex marriage violates the constitutional guarantee to equal protection under the law. She said her court "has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction." Her ruling clears the way for two gay men to legally divorce in Texas.

Judge Tena Callahan investiture

The men legally married in Cambridge, Massachusets, in 2006 and later moved to Dallas. In Janauary 2009, one of the spouses filed for divorce. The marriage, one of the spouses said, was not entered into lightly, and after 11 years together, the breakup is painful.

A voter-approved state constitutional amendment and the Texas Family Code prohibit same-sex marriages or civil unions. The approval of the Texas Marriage Amendment by voters in Nov. 2005 specified the definition of marriage in the Texas Constitution as the union of one man and one woman. It protects the longstanding social practice of recognizing only the union of a man and a woman as a marriage, and reinforced the Texas Defense of Marriage Act of 2003 prohibiting any political entity in the state from recognizing the union of two people of the same gender.

The Texas attorney general had intervened in the two men’s divorce case, arguing that since a gay marriage isn’t recognized in Texas, a Texas court can’t dissolve one through divorce. Judge Callahan denied the AG’s intervention, which, of course, the AG promises to appeal. The AG said, "In the State of Texas, marriage is – and has always been – a union between one man and one woman. To prevent other states from imposing their values on this state, Texas voters overwhelmingly approved a Constitutional amendment specifically defining marriage as a union of one man and one woman," he said in a written statement. "Because the parties’ Massachusetts-issued arrangement is not a marriage under Texas law, they are asking a Texas court to recognize – and dissolve – something that does not legally exist."

The Dallas lawyer representing the spouse filing for the divorce said he will argue that the men have that right under Article IV, Section 1 of the U.S. Constitution. The so-called Full Faith and Credit Clause provides, in part, that states recognize contracts from other states – that the marriage bond, he said, is universal. He also argued that the ruling violates the guarantee for equal protection under the law.

Expect an immediate and hasty appeal to the Dallas court of appeals and likely the Texas Supreme Court on this one. I’m sure the AG will file a mandamus action in the court of appeals to prohibit the divorce from proceeding. The Dallas court of appeals will likely stay the divorce proceedings while the mandamus proceeds. Then, regardless of the result of the case, the losing party will likely seek mandamus in the Texas Supreme Court, where the divorce proceeding will continue to be stayed. It is not out of the question for the case to be filed with the U.S. Supreme Court for determination.

Judge Tena Callahan is a Democrat elected in the 2006 Democrat sweep of the Dallas County courthouse. Prior to election to the 302nd bench, Judge Callahan practiced law as a family law attorney in Dallas County for 15 years. Judge Callahan received her undergraduate degree from the University of Texas and her law degree from St. Mary’s School of Law. In her 2006 campaign, she was endorsed as Qualified by the Committee for a Qualified Judiciary and the Dallas Morning News editorial board. The Dallas Bar Association’s Chris Robison with the DBA Publications Committee profiled Judge Callahan.

On the other hand, the Dallas Court of Appeals is considered to be one of the most conservative courts in the State. Dominated by nine republican justices who are elected over a five county region consisting not only of Democrat-leaning Dallas County, but also uber-conservative Collin County and Grayson, Hunt, Rockwall and Kaufman counties. Likewise, the Texas Supreme Court is made up of justices mostly appointed by either Governor Perry or Bush and it is largely considered to be one of the most conservative groups of justices on the Court ever.

Although many will consider this ruling to be a win for the GLBT sector, based on the level of conservatism of the justices in line to hear this case, it is extremely doubtful that this ruling will last very long. No doubt, in the meantime, it will provide a national spotlight for Dallas County and Judge Callahan.

Hat tip to Roy Appleton of the Dallas Morning News for the article Dallas judge paves way for gay couple to get divorce October 1, 2009. See also Roy Appleton’s article Dallas same-sex divorce case a first for Texas on January 23, 2009.


This case has received expected national media attention. This blog was quoted in the Gay Couples Law Blog (shout out to Gideon Alper!)

Also, NBC5 in Dallas has run a story on the issue, CBS11 in Dallas has interviewed Judge Callahan where she reiterates that the judicial ethics canons prevent her from discussing the case, the Wall Street Journal blog discussed the case, as did USA Today, and the Associated Press ran the story.

Not surprisingly, this issue is hot and being talked about. I can tell you that Judge Callahan is a thoughtful, wise judge who (obviously!) has no problem doing what she thinks is right, without regard to politics or media coverage or anything else. I’ve practiced in front of her since she became a judge. I’ve won some and lost some in front of her. But, I’ve never doubted her conviction for calling "balls and strikes" as she sees them!