A family court judge in Dallas has unwittingly provided us with a "teachable moment" as to: 1) What does a judicial activist look like? and 2) How does a Massachusetts gay "marriage" become a tool to undermine the traditional marriage policy of another state, say, like Texas?
Here's the scenario: Two gay men living in Massachusetts were married in 2006 under that state's judicially-imposed same-sex marriage scheme. They later moved to Texas, then filed for divorce in a Texas family court. Apparently, the two men found it inconvenient to move back to Massachusetts and establish residency there so they could file for divorce where they could legally obtain it.
The Texas Attorney General intervened in the case to argue that the judge had no jurisdiction to even hear the case, since Texas doesn't recognize gay marriage – the state has both a state marriage amendment and a statute defining marriage as between one woman and one man. In other words – you can't grant a divorce to a "marriage" that doesn't officially exist in Texas in the first place.
But Judge Tena Callahan thought perhaps it would be simpler to declare Texas's marriage amendment and statute unconstitutional under the federal Constitution. Wow. As a family law judge, she probably doesn't have the authority to address constitutional issues in the first place. What's worse, she's the first state judge anywhere to ever make such a ruling using the U.S. Constitution, rather than a state constitution.
State constitutions (and state marriage amendments) apply to individual states, and state judges typically decide local cases based on their state laws. The U.S. Constitution will always trump state constitutions when they're in conflict – and normally only federal judges get involved in the process of interpreting the U.S. Constitution. So, for a lowly specialty court judge in Dallas to invoke the federal Constitution in an attempt to overturn a validly enacted state marriage amendment is definitely "above her pay grade."
States like Texas are entitled to defend their public policy choices, especially on a subject as foundational to society as marriage. To entertain a same-sex "divorce" case today (as Texas is being asked to do) means that tomorrow there will be no valid reason to refuse a child custody or visitation case involving an out of state same-sex "marriage". After that - parental rights, inheritance issues, wrongful death suits – there really is no end of possibilities where state courts will get dragged into the process of interpreting their state laws in light of legal relationships that aren't even recognized in the state. And that's precisely the hope and strategy of gay activist organizations – to force the erosion of traditional marriage and family laws through cases like this. And, ultimately, to get to the point where a higher court, some bureaucrat, or an activist governor can unilaterally and undemocratically impose full recognition of same-sex "marriage" on the unwilling citizens of that state.
That's why Texas must refuse to acknowledge even this one "divorce" case.
And that's also why state marriage amendments, the federal Defense of Marriage Act and even a federal marriage protection amendment are essential to protecting one man, one woman marriage across the country. At the end of the day, cases like this show us how defending marriage isn't just a state issue – marriage is national issue that deserves federal recognition.
The good news? Judge Callahan's decision will most likely get swatted down by the Texas Court of Appeals in the very near future.
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