DALLAS — A Dallas judge ruled on Thursday to hear a “divorce" lawsuit between two men whose same-sex “marriage” was performed in Massachusetts, declaring the state marriage amendment and the state’s Defense of Marriage Act unconstitutional. The Texas Attorney General will appeal the ruling and Alliance Defense Fund attorneys are planning to file a friend-of-the-court brief opposing the Texas court’s ruling, which moves to recognize the men’s out-of-state same-sex “marriage” in defiance of the Texas Family Code and a voter-approved constitutional amendment recognizing marriage as between one man and one woman.

“The government cannot consider issuing a ‘divorce’ for a ‘marriage’ it doesn’t recognize. Seventy-five percent of Texans in 2005 made it perfectly clear that marriage in their state is solely between one man and one woman,” said ADF Senior Legal Counsel and Texas native Austin R. Nimocks.  “The Texas voters understand that marriage laws promote children having both a mother and a father. This ruling runs contrary to the voice of Texans and the historic purposes behind the state’s marriage laws.”

District Judge Tena Callahan issued her ruling in a state court in Dallas yesterday to strike down the Texas marriage amendment, as well as the state DOMA, stating that the state ban on same-sex “marriage” violates the federal constitutional right to equal protection under the Fourteenth Amendment to the U.S. Constitution. This ruling marks the first time that a state court judge has struck down marriage laws based on the U. S. Constitution. Nimocks says same-sex “marriage” is not a fundamental right under the Constitution.  The two men seeking the Texas “divorce” were “married” in Cambridge, Mass. in September 2006, and then returned to Dallas. This lawsuit to dissolve their partnership was filed in January.

Immediately after ruling, Texas Attorney General Greg Abbott announced that he would appeal Callahan’s attack on the laws and constitution of the Lone Star State and defend the traditional definition of marriage that Texas voters overwhelmingly approved in 2005. Texas Gov. Rick Perry, who supported the amendment four years ago, stated that he is confident that the voters’ and lawmakers’ affirmation of marriage as between one man and one woman in the state of Texas would remain standing after this recent challenge.

ADF attorneys, who are expected to file a brief in opposition to Callahan’s ruling, are also defending a similar attack on marriage in Oklahoma, where voters approved their state amendment defining marriage as between one man and one woman by 76 percent in 2004. In O’Darling v. O’Darling, a “divorce” is being sought by two women allegedly “married” in Canada. That matter is currently pending before the Oklahoma Supreme Court. In 2007, ADF attorneys were also involved in a case where the Rhode Island Supreme Court refused to issue a “divorce” to two women “married” in Massachusetts. Just last month, two women “married” in Canada were denied a “divorce” in Indiana because it would have violated the state’s existing law.

Currently, only the states of Massachusetts, Vermont, Connecticut, and Iowa permit same-sex “marriages.”  New Hampshire’s same-sex “marriage” law is set to goes into effect on January 1, 2010. Maine’s same-sex “marriage” law, enacted this year, is currently on hold, pending a vote by the citizens of Maine in November on the issue. Washington, D.C. voted in May to recognize same-sex “marriages” performed outside of the district.