May 29, 2022

Another Activist Judge

Courtroom 1

A judge in Dallas ruled on Thursday that the Texas’ ban on gay marriage is unconstitutional1—which is quite absurd when you think about it.

A Problem of Jurisdiction

State District Judge Tena Callahan is not a federal judge, so she is supposed to adhere to the Constitution of the state of Texas, which states specifically:

Article 1, Section 32:

(a) Marriage in this state shall consist only of the union of one man and one woman.

(b)  This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

Please correct me if I’m wrong, but how can a statement in the Constitution be unconstitutional?  I mean, I can understand if the Judge believes that the two portions of the Constitution are in conflict, but when a document expresses this statement, I’m not sure how a judge decides that the section (regardless of the issue) is to be thrown out—or in this case, which gets precedence—the equal protection portion or the same-sex marriage portion.

A rational person would say, if 70% of the population voted to put this in, knowing the arguments for “equal-protection” then they must not believe it conflicts.  Even if you don’t believe in a God or God’s moral law, this ruling flies in the face of popular will for the state.

Ignores Federal Law

But if that weren’t enough, what’s really going on here is that two men, once “married” in Massachusetts, has moved to Texas and wants to divorce there.  The Federal DOMA2 specifically states that unions that are made in one state do not have to be recognized in other states.

What gives this judge the right to say that this union should not only exist in Texas, but that it can be broken apart there with judgments made for both parties?

I mean, she’s free to have her own personal opinions, but what in the law produces such rights.

Obviously, Federal Law says that Texas is free to decide, and Texans said “we won’t do that kind of thing here” so who does this judge think she is to say “well, you 70% of the state—you’re wrong.”  By what authority?  And if it was given to her, why does she still have it?

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  1. Judge: Texas Ban on Gay Marriage Unconstitutional – NBC []
  2. Defense of Marriage Act []

6 thoughts on “Another Activist Judge

  1. The problem is that the Federal DOMA is unconstitutional. The Constitution clearly states (Article IV, Section 1) “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” It is totally obvious that Texas refusal to recognize the public record of the state of Massachusetts is unconstitutional. One does not need a law degree or a lifetime appointment to the Federal bench to figure that out.

    Leticia, the prejudice here is against gay Americans, not against heterosexual Americans.

    1. Charles, I have to wonder why you selectively quoted the Constitution’s Full Faith and Credit Clause.

      Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

      I mean, I know I don’t have a law degree, but it seems to me that DOMA did exactly what the second clause stated. Congress said that one state’s recording of a same sex marriage has no effect on another state– they don’t have to recognize it. (cf. Wikipedia – Full Faith and Credit Clause, Why the Defense of Marriage Act is not (yet?) Unconstitutional, Defense of Marriage Act)

      Texas refusal to recognize the public record of the state of Massachusetts is completely in line with the Federal DOMA, and until the Supreme Court rules on the Constitutionality of same sex unions, the Congress’ statement on the issue stands.

  2. I also am not a lawyer, but it doesn’t seem hard for me to understand popular support for un-constitutional law. If 80% of the voters in Texas were to decide Animism was an illegal religion and the constitution was modified to make practicing Animist religion illegal, would that be constitutional? I don’t think so.
    .-= John @ Curious Cat Investing and Economics Blog´s last blog ..Amazon Soars on Good Earnings and Projected Sales =-.

    1. It is true– people can vote for something that is unconstitutional. The Supreme Court is currently considering whether or not Campaign Finance law goes too far in restricting speech. And yet it also doesn’t get everything right– approving Social Security when there’s no support for it in the U.S. Constitution.

      As far as Animism and Texas, after the 14th Amendment applied the Constitution to the states you are correct. The States may try to enforce the rule temporarily, but the Federal Courts would soon hear the matter and set it right.

      However, I don’t think that you’re accurately understanding the situation. A Texas Judge ruled that Texas (a state that has in its Constitution a definition for marriage that equals one man and one woman) must recognize an out of state same-sex marriage (one that was performed in Massachusetts). The Federal Defense of Marriage Act says that it does not. The issue at hand is not whether same-sex marriage is unconstitutional– the people of Texas added it to their Constitution, so by definition it is– the issue is whether the Federal DOMA is Constitutional.

      In this case, I present that it is, since Congress has the ability to determine the effect of another state’s actions on other states, and in this case the Federal Government has given states the liberty to either recognize it or not.

      Some day the Federal Courts may take up the topic of same-sex marriage. When they do, DOMA could be declared un-Constitutional under equal protection or whatever they want to invent. Until then, the law of the land is DOMA, and a State Judge does not have the standing (in my view) to declare that UnConstitutional.

      Are we a nation of laws, and are judges supposed to declare what the law says or not?

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