A Texas appellate court has overturned a trial court’s divorce decree granted to two gay men married in Massachusetts now residing in the Lone Star state. There are two lessons to be gleaned from this decision: 1) Not all trial judges can accurately read and interpret the plain language of a marriage amendment (Why does the name Judge Vaughn Walker come to mind?!); and 2) The Texas appellate court interprets the federal Constitution and court cases concerning marriage quite differently than Walker, which is a reassuring breath of fresh air.

To explain the Texas appellate opinion a little further:

1. In order to get a divorce in Texas, the state has to officially “recognize” your marriage before it can dissolve it. That makes sense to everyone but the trial judge in this case. The Texas marriage amendment couldn’t be plainer: “Marriage in this state shall consist only of the union of one man and one woman. This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

2. Texas doesn’t violate the 14th Amendment of the U.S. Constitution by refusing to “recognize” and then grant a divorce to these two men. The appellate court addressed the same marriage and constitutional questions that Vaughn Walker did in the Prop 8 case but came out 180 degrees in the opposite direction.

Suspect class – Walker opined, without directly holding, in the Prop 8 case that homosexuals easily met the test of a “suspect class” (like race) which would have required a tougher judicial test (“strict scrutiny”) that Prop 8 would not have passed. Texas, on the other hand, listed the numerous state and federal cases that have already decided this issue and held that homosexuality is not a suspect class. What Walker ignored or dismissed by way of binding judicial precedent, Texas still respects and follows.

Fundamental right – Walker held that marriage “to the person of your choice” is a fundamental constitutional right, thus triggering the tougher “strict scrutiny” test which he found Prop 8 didn’t meet. Texas examined the nation’s history and every U.S. Supreme Court case on marriage and found that, gee whiz, the definition of marriage has always been between a man and a woman, not this “person of your choice” re-definition. No fundamental right to same-sex marriage.

Rational basis test – In the Prop 8 case, Walker held that there was no conceivable basis why marriage should be limited to a man and a woman. And he held a show trial complete with social science “experts” willing to opine that there’s not even any debate over that any more. Texas, again respecting the decisions of numerous other courts around the country, held that there’s no debate that it is rational for a legislature to single out opposite-sex couples for the benefits of marital status.

Thank you, Texas, for reminding us that there are still many judges and courts who can interpret and apply the law correctly.

UPDATE: My friend and colleague Bill Duncan of the Marriage Family Law Foundation has an excellent synopsis of the decision over at The Corner.

Sometimes all you need to do is report the day’s news to prove a point:  Activist judges are out of control and Americans want it stopped. A couple days ago I wrote about a grassroots effort in Iowa to defeat three of their state supreme court justices who are up for a “retention” election this fall. The entire court voted in 2009 to impose same-sex marriage on the state, but these three are the first ones up for an accountability object lesson this fall. Today, Rasmussen released a national poll about folks’ opinions on judges in general. The shocker answer came in response to a question whether judges should be appointed or elected:

By a 62 percent to 25 percent margin, voters believe that most judges should be elected rather than appointed.

Why would that be, do you suppose? Hmmm? No rocket scientists needed for this one. Rasmussen analyzes it correctly, in my opinion:

That’s likely the result of the fact that 53 percent believe judges have their own political agenda. Only 29 percent believe they generally remain impartial. Republicans and unaffiliated voters overwhelmingly believe that most judges have their own agenda. Democrats are evenly divided on the question.

Those are pretty impressive, and nonpartisan, views.Who could fail to get the message behind it? Well, the biggest cheerleader for stopping all this talk about “elections” for judges is none other than former Supreme Court Justice Sandra Day O’Connor. Seems she’s even going to make a trip to Iowa to talk some sense into those Hawkeyes. But according to professor Matthew Franck, with an appropriate nod to The Music Man, she doesn’t know the territory

:

And that brings us to Sandra Day O’Connor, one of the most effective and successful “politicians in robes” ever to sit on the Supreme Court of the United States.  She is dedicating her declining years to the cause of “judicial independence,” which for her means: no judicial elections in the states; no talk of reform in the federal judiciary; no probing questions during Supreme Court nomination hearings; no wild talk of impeaching federal judges no matter how obvious their usurpations; and, in fine, no criticism of the judiciary that actually calls the judges what they are, usurping tyrants.  Justice O’Connor, you see, is dead set against us mere voters “politicizing the judiciary.”  Don’t we understand that that’s the judges’ job?

Hopefully, this November, Iowans will be singing “O-ho the Wells Fargo wagon is a-comin’” and bringing them “something special” in the form of judicial accountability and perhaps “a new rockin’ chair” for three newly retired judges.

This headline is hard to miss.  “Why is the Government Trying to Force Me to Divorce My Wife?” But even more noticeable is the $80-100,000 dollars Scott Sumner and his wife will miss over their lifetime simply because they’re married.

Sumner opines about the marriage tax penalty on the Wall Street Pit blog, and points out that the new health care bill “makes the marriage penalty even worse for married couples earning between $250,000 and $400,000.”

Contrary to what Obama says, workers making $130,000 (married to each other) might have to pay higher taxes as a result of the health care bill.  So it isn’t just the “rich,” the upper middle class will also be affected.  Under the bill a cohabitating couple where each person makes $200,000 from interest, dividends, or rental income will pay an extra $5900 in taxes if married, but no extra taxes if “living in sin.”

The marriage penalty affects lower income couples by a much greater percentage:

BTW, this isn’t just a problem that affects the upper middle-class; low income workers also face a large implicit marriage penalty, as benefits like the EITC [Earned Income Tax Credit] get phased out much more quickly if two low income people get married.  Indeed in percentage terms this probably affects them much more than me.  (Interestingly, as the marriage penalty got worse for low income workers, their marriage rate fell.)

I would think that both Democrats and Republicans would have something to gain this election season by championing the end to the marriage penalty.  Married Americans tend to be high earners, responsible tax payers—and voters.