"A federal court in San Antonio will hear arguments Wednesday in a case challenging the legitimacy of Texas’ constitutional ban on same-sex marriage." --Same-Sex Marriage Advocates Battle in Court
But there is no question that this state constitutional ban on gay marriage is legitimate imo. More specifically, the states have never amended the federal Constitution to protect so-called gay "rights." So regardless that pro-gay activist judges are wrongly legislating gay rights from the bench, the states are free to make laws which discriminate against such rights, as long as such laws don't also unreasonably abridge constitutionally enumerated rights.
The main reason that activist judges are getting away with doing these things, imo, is because parents have not been making sure that their children are being taught about not only 10th Amendment-protected state powers, but also the differences between legislative, executive and judicial government powers.
I think we need a state with a conservative legislature and governor (are there any like this now?) to pass a definition in law of marriage—that HAS IN THE STATUTE that the “jurisdiction of the courts does not extend to review” this statute.
In theory it could work at the federal level (Meese brought this up first on another issue), but it would be interesting to see it tested at the state level. If states can defy federal statutes on marijuana use, why not over marriage—which the federal government has—historically—no jurisdiction over?
In reality it will take the US Supremes to decide this, but I don’t see this court producing a definition of marriage—either way (to include gays or not)—since their last decision defeating the federal defense of marriage act clause, left the part where states are acknowledged to define marriage, intact.