Texas Supreme Court Legalizes Gay Marriage

In a stunning move Monday, the Texas Supreme Court issued an advisory opinion from the bench legalizing gay marriage.  The advisory memo was entirely unexpected, taking veteran court watchers by surprise.  

UT Law Professor Christopher Street Halsted, already swamped by requests for comment on last week's companion cases concerning gay marriage at the U.S. Supreme Court was taken aback, noting that he was unaware of any precedent in this instance.  

"Texas has long held that gay marriage was against the laws of God and man, let alone constitutional," he said.  

Read more below the jump.
Halsted, a graduate of the University of Chicago's Law School, and a former adjunct professor at New York University in Greenwich Village, noted that the jurisdictional issues alone signal that this bench memorandum is highly out of the ordinary.

"There are very few routes to having one's case heard or reviewed by an appellate court in America - and that includes the Texas Supreme Court," he explained.  "It's a tenet of common law, which we inherited from England, and which continued into the American colonies, and through to the westward expansion in the nineteenth century, that courts, especially appellate courts, will not hear a case unless there is a justiciable controversy.  That is to say, loosely speaking, most of the time, you need two distinct parties with interests to be decided.  American courts, unlike their continental European counterparts - think France, Germany, etc. - are reluctant to write opinions that simply interpret the law in the abstract."

Halsted further noted that this opinion was remarkable for being both sua sponte and sui generis, and that he expected his law students' minds to be, as he put it, "blown."

Chief Justice Wallace B. Jefferson acknowledged the difficulty of the jurisdictional issue and explained why the court had adopted the stance at this time.  

"We were afraid that our colleagues in Washington would strike down gay marriage, and we couldn't let ourselves be bound by the dictates of an elite in the nation's capital.  Additionally, it was about time, and we wanted to give legal effect to that which was already happening amongst our family, our friends, our neighbors, and in our homes. "

"Albeit, not myhome," he hastened to add.  "However, I think people will be surprised to hear that there is, in fact, a second jurisdictional issue."

When asked to clarify, Chief Justice Jefferson paused, smiled sheepishly, and replied, "Well, actually, we drafted the opinion to legalize gay marriage in Oklahoma."

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