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Judge rules that same-sex marriage bans harm children

Judge Barbara Nellermoe
Bexar County, Texas District Court

The same-sex marriage ban in Texas was just ruled unconstitutional by a state district judge, but this marriage equality ruling is different from the others that have been sweeping the nation. In a ruling issued Tuesday, Judge Barbara Nellermoe claimed that marriage equality bans discriminate against children.

“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,” Nellermoe wrote.

The ruling from Nellermoe was in response to a challenge filed by a lesbian couple seeking a divorce in Texas after previously marrying in Washington D.C. where it is legally recognized. The couple has a child conceived through artificial insemination, and one parent is seeking sole custody while the other parent is seeking joint custody. Currently, the courts in Texas cannot issue supplemental birth certificates for children adopted by two men or two women, and because the state does not recognize same-sex marriages, the child is only legally considered the child of the birthmother. Nellermoe ruled that this practice violates the Equal Protection Clause.

Citing a federal judge’s decision in February striking down Texas’ same-sex marriage ban, Nellermoe wrote that “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.”

Nellermoe’s ruling is significant because it claims that same-sex marriage bans harm children by denying them equal protection under the Fourteenth Amendment. This statement counters years of arguments from organizations such as the National Organization for Marriage and the American Family Association. These groups claim that same-sex marriages harm children by denying them both a mother and a father. In fact, there are numerous areas where children lack legal protection due to state bans on same-sex marriage. For example, some states do not allow two people of the same sex to adopt a child, so it becomes complicated when the non-biological parent, or parent not on the birth certificate, needs to make medical decisions for their child. Other examples include student loan applications where a student is required to list the income of their parents, or parental visitation rights in cases revolving around divorce, such as the instance in this case.

The ruling by Nellermoe could be a game changer for future same-sex marriage cases going forward, and could also be used to fight for adoption rights for same-sex couples in other states.

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