Law Professor Says Gay Divorce Case is Likely DOA

The Texas attorney general vows to fight a ruling from a Dallas judge that says the state's constitutional ban on same-sex marriage violates the "federal" constitution's guarantee of equal protection under the law. The case centers on two men who were married in Massachusetts, and are now trying to get a divorce in Texas — which doesn't recognize gay marriages performed in other states. As David Pitman reports, one local expert in constitutional law doesn't believe this particular battle will lead to any changes on the state or national level.

Dr. Charles "Rocky" Rhodes is a professor at the South Texas College of Law in Houston.  He says there's no case law to support the ruling made by Dallas state District Judge Tena Callahan.  He says in every other case in which a same-sex couple has tried to get divorced in a state that doesn't recognize their marriage performed elsewhere, the courts have come to the same conclusion. 

"We are not required to under either full faith or credit or by the federal constitutional to recognize this marriage.  And that seems to be the prevailing case view right now, is that you don't have the ability to go into another state and have them grant you a divorce if your marriage would not be legally recognized as binding in that state."

Professor Rhodes says it's difficult to answer the question whether Judge Callahan is correct in declaring the Texas ban on same-sex marriage unconstitutional , primarily because the U.S. Supreme Court has not declared homosexuals to be a protected class of people.

"United States Supreme Court has always said that same-sex discrimination is only subject to a 'rational basis' review which is the same as discriminating against somebody because they're tall, or they're short, or they're fat, or something else like that."

Rhodes predicts the state will eventually prevail in this case, and he doesn't believe the U.S. Supreme Court will agree to hear this case, if it is appealed to that level.

David Pitman. KUHF-Houston Public Radio News.

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David Pitman

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