October 2, 2009

Texas State Judge Overturns Texas State Constitution

Hatched by Dafydd

Perhaps one of the legal beagles in the 'sphere can explain this to me, for I am only an egg in legal matters:

A Dallas judge ruled Thursday that Texas' ban on gay marriage is unconstitutional as she cleared the way for two gay men to divorce, the Dallas Morning News reported.

State District Judge Tena Callahan said the state’s bans on same-sex marriage violates the constitutional guarantee to equal protection under the law....

Attorney General Greg Abbott released a statement saying that he will appeal the ruling.

“The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman. Today's ruling purports to strike down that constitutional definition -- despite the fact that it was recently adopted by 75 percent of Texas voters,” he said.

Can Texas state judges strike down elements of the Texas state constitution on grounds that the constituiton is unconstitutional? I'm pretty sure that state judges in California cannot, but perhaps I'm mistaken even in that.

I was under the (perhaps naive) apprehension that state judges can strike down statutes for violating provisions of the state constitution; and of course a federal judge can strike down both a state statute and parts of a state constitution for violating the United States Constitution -- for example, a federal judge could strike down a clause of a state constitution, enacted by referendum (even by 75% of the voters), that restricted voting to whites.

But I didn't think state judges could strike down the state constitution, any more than a federal judge can simply rule a clause of the U.S. Constitution "unconstitutional." If a later clause contradicts an earlier one, then I have always assumed that the latter triumphs -- the most obvious case being the 12th Amendment in 1804, which directly contradicted parts of Article II, Section 1 of the Constitution, dealing with how we elect a president.

I have always been taught in school that the 12 Amendment changed the Constitution; but under the reasoning of State District Judge Tena Callahan, any federal judge could simply have ruled the 12th Amendment unconstitutional -- because it contradicted the section it was designed to alter! Similarly, any federal judge could have struck down the 13th Amendment (ending slavery), the 14th Amendment (due process and equal protection for all races), the 16th Amendment (income tax -- all right, maybe judges can kill off that one), or even the 21st Amendment repealing the 18th Amendment, thus reinstating alcohol prohibition across the land.

Clearly then, it seems to me, if federal judges cannot rule the U.S. Constitution unconstitutional, then state judges cannot rule the state constitution unconstitutional. Or am I simply ignorant of the niceties of law?

I suppose Callahan would argue that the state constitution violates the U.S. Constitution's 14th Amendment. But does a state judge have jurisdiction to consider that question? If so, then couldn't a state judge overrule a federal judge who may have already decided the opposite way? I thought the whole purpose of jurisdictional rules was to prevent such collisions in the first place.

And there is another point worth considering: The voters of Texas enacted a constitutional amendment to ban same-sex marriage; but if a single liberal state judge can simply wave her hands and consign that vote to the dustbin of history, then Texas no longer as a "republican form of government"... which, by the way, appears -- at least to my non-law-schooled eyes -- to be guaranteed to each state by Article IV, Section 4 of the United States Constitution.

At the very least, a "republican form of government" must ultimately be ordained and established by "we the people," not by judges; a judge should never be allowed to throw out pieces of her own constitution to suit her political ideology. That must be what is guaranteed by Article IV, section 4, for it to have any meaning or purpose whatsoever.

Unless some state judge somewhere has overturned it.

Hatched by Dafydd on this day, October 2, 2009, at the time of 12:47 PM

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The following hissed in response by: Steven Den Beste

Yes, I think she was making a 14th Amendment claim, and yes, she can do that.

She's wrong, but that's an entirely different question.

The above hissed in response by: Steven Den Beste [TypeKey Profile Page] at October 2, 2009 1:37 PM

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