A judge on Tuesday declared Texas' ban on gay marriage unconstitutional.

Judge Barbara Nellermoe of the 45th District Court ruled that she would recognize the 2010 Washington D.C. marriage of two women – Kristi and Allison Flood Lesh – who are seeking to divorce.

In reaching her decision, Nellermoe noted a February decision by U.S. District Court Judge Orlando Garcia striking down as unconstitutional an amendment overwhelmingly approved by voters in 2005 which defines marriage as a heterosexual union.

“In a well-reasoned opinion by Judge Orlando Garcia,” Nellermoe wrote, “the federal district court found that a state cannot do what the federal government cannot – that is, it cannot discriminate against same-sex couples.”

Kristi Lesh gave birth to a child last year and argues that she should retain full custody since Texas doesn't recognize her marriage. Allison Flood Lesh is seeking partial custody of the baby, the Dallas Voice reported.

Judge Nellermoe has called for a hearing.