Judge in Texas gay divorce case says she didn’t struggle with constitutional principles, just with probable backlash she expected
Judge Tena Callahan stood at the front of the room inside Ojeda’s Restaurant in Dallas on Tuesday, Oct. 20, and held up a small, red cloth bag.
Callahan said she has “millions” of bags like it, because they’re frequently given to judges and attorneys at legal seminars. She said she uses them for groceries and leaves them hanging over a chair in her dining room.
But Callahan said it was this particular bag — and the quotation printed on the back — that ultimately helped her muster the courage she needed to recently declare Texas’ marriage amendment unconstitutional.
“I was sitting at my dining room table and I was thinking, I’ve got to make this decision, I’ve got to rip this Band-Aid off and I’ve got to make this decision,” Callahan said, adding that she wasn’t struggling with the constitutional principle behind the ruling, but with the backlash she was sure to face.
“My dad always used to tell me that a billion people can believe in a bad idea, and it’s still a bad idea. And that man taught me to have the courage of my convictions and to do what’s right
— it’s always the right time to do the right thing. And as I’m sitting there and all this is going through my head, I’m looking at the back of this bag, and I went, ‘Oh my God, I just got my answer.’
“‘Let us have faith that right makes might,’” Callahan said, reading from the back of the bag, “and in that faith, let us to the end dare to do our duty as we understand it. — Abraham Lincoln.”
“I do my duty,” Callahan said. “That’s what you elected me to do.”
As Callahan concluded her brief remarks, fellow members of Stonewall Democrats of Dallas gave her a standing ovation, just as they had when she took the microphone.
The group’s regular monthly meeting this week marked one of the first times Callahan has spoken publicly since the Oct. 1 ruling, which made national headlines and which some activists believe represents the first step toward overturning the state’s 2005 constitutional amendment defining marriage as between one man and one woman.
But Callahan cautioned that she couldn’t address specifics of the case, which involves a gay couple that was married in Massachusetts in 2006 and later moved to Texas. The couple is seeking a divorce in Texas because Massachusetts, where same-sex marriage has been legal since 2004, has a residency requirement for divorce.
Callahan’s ruling, in which she found that the marriage ban violates the equal protection clause of the U.S. Constitution, has been appealed by Texas Attorney General Greg Abbott.
Abbott, a Republican, has argued that the state cannot grant divorces to same-sex couples because the amendment prohibits Texas from recognizing same-sex marriages.
“Because it’s still before me, pursuant to the judicial canons and ethics that judges have to follow, I can’t talk about the case,” Callahan said after being introduced by Stonewall President Erin Moore.
“I can tell you this: Unfortunately, I’m not gay. I’m sorry, I’m not.”
The comment drew laughter, and the 54-year-old Callahan went on to explain that she was an undergraduate acting major at UT-Austin who began acting while attending high school in Dallas.
“I will tell you that since I was in high school and probably even younger, I was around folks who were gay,” she said. “I know you guys like I know my brothers, my sisters. You are familiar to me. You have mothers, you have fathers, you have brothers, you have sisters, and you and I, we’re just the same.
“And when I got to reading the Constitution of the United States of America, which Texas is still a part of, I was never more sure of just how much you and I are the very same and how important it is that that constitution protect you, because if it doesn’t protect you, then it doesn’t protect me, and I want it to protect me,” she said.
“It’s not there to protect the majority. In a democracy, majority rules. Who needs the silly constitution when you’re ruling? But when you overreach, when you step out of your bounds, when you apply the same laws differently to people who are just the same, that’s what it’s there for. …
“It is a wonderful, living, breathing document, and it protects us all,” Callahan said.
Callahan said she was only doing her job when she issued the ruling and she credited those in the room with being “smart enough” to help elect her and other Democrats in 2006. She encouraged them to do “the right thing” again in 2010 by supporting Democratic candidates, including several who attended Tuesday’s meeting.
“The folks here tonight who are running for re-election, they’ve done their duty,” she said. “That’s what you put them in office to do, and that’s what they’re going to continue to do. These great people we have here who are going to be asking for your vote, they know what it is that you want. They understand the fidelity of the constitution, of the laws of this state, and we’re here to preserve them and protect them for everyone, because we’re all alike.”
This article appeared in the Dallas Voice print edition October 23, 2009.