In a move similar to a federal ruling in February, Texas state district judge Barbara Nellermoe has declared the Texas state same-sex marriage ban unconstitutional.
Allison Flood Lesh, seeking a divorce from her wife of three years, filed the lawsuit in order to gain visitation rights for her child.
Lesh’s wife Kristi Lesh’s attorney argued that, due to Lesh not being biologically or adoptively related to the child, she should not be able to retain custody.
Currently Allison Lesh is seeking split custody of their child, which Kristi Lesh gave birth to in February 2013 following artificial insemination.
Judge Barbara Nellermoe ruled that a “failure in Texas to afford the same presumption of parenthood to the wife of a child’s birth mother as it does to a husband of the birth mother violates the Equal Protection Clause.”
Judge Nellermoe pinpointed three portions of the Texas Family Code as unconstitutional, as well as Section 32 of the Texas Constitution.
She also wrote, “in a well-reasoned opinion by Judge Orlando Garcia, the federal district court found that a state cannot do what the federal government cannot—that is, it cannot discriminate against same-sex couples.”
In states that do not recognize marriage equality, the birth parent is legally considered the only parent of the child.
But Nellermoe’s ruling deems these legal standards unconstitutional and, by association, the law banning the recognition of same-sex marriages: “By denying their parents the right to marry, Texas has created a suspect classification of children who are denied equal protection of the law under the Fourteenth Amendment.”
Though her ruling does not change the state’s current ban in regards to same-sex marriage, alongside the similar ruling in February, it is yet another step forward for the state’s slow progress towards marriage equality.