Ruling echoes that of federal judge who declared gay marriage ban unconstitutional earlier this year
As many same-sex couples in Texas are waiting for the right to get married, a lesbian couple has just won the right to get divorced.
A state judge ruled this week that former couple Allison Leona Flood Lesh and Kristi Lyn Lesh can proceed with a divorce and child custody case. They were married in Washington, D.C., in August 2010 and live in San Antonio.
The women have a one-year-old child that Kristi Lesh gave birth to after becoming pregnant through artificial insemination. She wants sole custody while Allison Flood Lesh is seeking to split custody.
The custody case is complicated by the fact that Flood Lesh is not a biological or adoptive parent to the child. Unlike in a heterosexual marriage, there is not the same presumption of parenthood that a husband has when his wife gives birth.
Judge Barbara Nellermoe wrote: ‘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.’
In paving the way for the divorce and custody case to proceed, Nellermoe cited a recent federal court ruling – currently under appeal – that declared the state’s marriage ban unconstitutional.
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.’