You should be feeling pity for Texas conservatives right now. See, conservatism is meant to be easy; that’s one of its greatest appeals. It rejects the mushy moral relativism of liberalism for simple, straightforward dicta. Like: if it’s Middle Eastern, invade it; if it’s a tax, cut it; if it’s a gay marriage, oppose it.
Except right wing Texans down[1] in the Lone Star State have found themselves in the uncomfortable position of supporting gay marriage. Or, one specific gay marriage anyway. Reports the New York Times:
HOUSTON — A judge in Texas paved the way for a court battle over the state’s ban on same-sex marriage when she ruled this week that two men married in another state can get divorced in Dallas.
The state attorney general said Friday that he would appeal the decision, even as gay rights advocates applauded the judge, Tena Callahan of Family District Court, for declaring that the state’s four-year-old ban on same-sex marriages and civil unions violated the right to equal protection under the 14th Amendment.
Turns out these two dudes Texas’s Family District Court is calling H.B. and J.B.[2] got gay-married back in Massachusetts (where folks can do such things), moved to Texas, then realized they weren’t living gay-happily in gay-harmony, and wanted to get gay-divorced. Gaily.
Texas law does not permit gay marriages — indeed, it’s only permitted sodomy since the United States Supreme Court said it had to, six years ago — so it seemed J.B. and H.B.’s decision to divorce would have been recognized as an admirable effort to conform with the laws of the great state they now called home. The problem was, though, that since Texas refuses to admit the couple was ever married, it couldn’t exactly allow them to get divorced. Which meant they had to stay married. Except, according to Texas, they weren’t married. Except in Massachusetts. But they couldn’t get divorced in Massachusetts, where they were married, because now they lived in Texas.
You’d think, then, that it would have been a relief to everyone involved, gay, straight or Texan, when a judge stepped in and said that the two men were perfectly entitled to a divorce, just like every other resident of Texas. Indeed, she based her decision on the 14th Amendment to the United States Constitution which says governments can’t deny citizens equal protection under the law. That is, if the government says two people who happen to be a man and a woman can get divorced, then two people who happen to be a man and a man are entitled to the same option.
The judge, Tena Callahan[3], was doing something pretty radical and pretty straightforward here. She looked at a constitution that said, basically, “folks need to be treated the same,” saw a situation where J.B. and H.B. were not being treated the same as other folks (i.e. were not permitted to get a divorce) and told the government in breach of that that this was not on.
Of course, this has implications for more than gay divorces. If Texas law must allow gay couples married in Massachusetts to be divorced, it must recognize that they were married in the first place. And since Texas must do so because, according to the U.S. constitution, it is discriminatory not to, then it probably is discriminatory for Texas not to permit gay marriages within its own borders. And since this is the American Constitution being discussed, rather than the Texan one, the ruling should apply to the entirety of the United States. Judge Callahan’s decision might as well declare gay marriage legal throughout the fifty states.
Texas Governor Rick Perry and Attorney General Greg Abbott, both Republicans, vigorously oppose Callahan’s decision. If Texas doesn’t reverse this decision, there’s a chance the case could go all the way to the United States Supreme Court, a prospect I’m sure the minimalist-inclined Roberts Court is dreading.
I guess we should all be pleased even Texan conservatives have finally expanded their defense of the sanctity of marriage to include gays, even if they don’t actually recognize the marriages of which they’re defending the sanctity. But it’s useful to hear from one of the parties involved, J.B., who Fort Worth’s Star Telegram quotes as saying in a statement from his attorney:
“Some have called for this to be a day of victory or a cause for celebration … It is actually a day of great personal sadness as a chapter to my life ends.”
Divorces aren’t fun occasions for anyone, and I’m sure they’re even worse when your state’s Governor is arguing about whether you can even have one. This is one gay marriage of which no one should be in favor.
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[1] Well, since we’re in Australia, technically up.
[2] Guys, it’s not me.
[3] Us Australians may be a little discombobulated to find she’s campaigning for re-election next year.
The Screw 