mcnosky v perry plaintiffs’ amended motion for summary judgement 1-12-2014

8/13/2019 McNosky v Perry PLAINTIFFS’ AMENDED MOTION FOR SUMMARY JUDGEMENT 1-12-2014

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CHRISTOPHER DANIEL McNOSKY

and SVEN STRICKER,

Plaintiffs,

v. Case No. 1:13-CV-0631 SS

TEXAS GOVERNOR RICK PERRY, et al

Defendants,

________________________________________________________________________

PLAINTIFFS’ AMENDED MOTION FOR SUMMARY JUDGEMENT

________________________________________________________________________

Comes now Plaintiffs, McNosky and Stricker, pursuant to Rule 56 of the Federal Rules

of Civil Procedure, moves this Court for summary judgment against Defendants Texas

Governor Rick Perry, Texas Attorney General Greg Abbott, and Tarrant County Clerk Mary

Louise Garcia. Material undisputed facts demonstrate that the Defendants, in their capacities as

Texas State officials, denied access to and participation in the state-sanctioned institution of

marriage, to Plaintiffs McNosky and Stricker on the basis of their biological sex. Judgment

should therefore be entered in favor of the Plaintiffs McNosky and Stricker, including entry of a

permanent injunction to prevent future violations of the law, and provide relief to the Plaintiffs.

This motion is supported by the exhibits attached hereto.

I. INTRODUCTION

Case 1:13-cv-00631-SS Document 48 Filed 01/12/14 of 22



This civil rights case challenges as unconstitutional the Texas statute and state

constitutional amendment that each prohibit the issuance of marriage licenses to same-sex

couples in Texas. The issuance of marriage licenses exclusively to opposite-sex couples and

blanketed rejection of same-sex marriage license applicants, violates rights secured to the

Plaintiffs by the United States Constitution. Plaintiffs seek declaratory and injunctive relief for

themselves and hope to set a precedent that will lead to relief for other same-sex couples.

II. STATEMENT OF FACTS

A. Parties

1. Plaintiffs McNosky and Stricker both:

a. Are biologically male.

b. Are not allowed to legally marry each other in The State of Texas.

c. Are citizens of the United States of America.

d. Are residents of the State of Texas.

e. Meet or surpass ALL of the general requirements to legally enter into a

state-sanctioned marriage contract, including but not limited to:

1. Plaintiffs are at least 18 years of age.

2. Plaintiffs are not presently married.

3. Plaintiffs are not presently delinquent in the payment of court-ordered

child support.

4. Plaintiffs have not been divorced within last 30 days.

5. Plaintiffs are not related to one another as an ancestor or descendant, by

blood or adoption; a brother or sister, of the whole or half blood or by




adoption; a parent's brother or sister of the whole or half blood or by

adoption; a son or daughter of a brother or sister of the whole or half

blood or by adoption; a current or former stepchild or stepparent; or a

son or daughter of parent's brother or sister, of the whole or half blood

or by adoption.

f. On July 1, 2013, Plaintiffs Christopher Daniel McNosky and Sven Stricker,

jointly applied for a marriage license at the Vital Records Office of Tarrant

County, located in Fort Worth, Texas.

g. The Plaintiffs’ properly completed marriage license application was denied

immediately upon submission, without further review.

h. The Plaintiffs were denied on the basis of their sex, and ONLY their SEX,

since no other legal reason exists in accordance with Article 1, Sec. 32 of the

Texas Constitution; Texas Family Code; Title 1; Subtitle A; Chapter 2;

Subchapter A; Section 2.001 (b); and Texas Family Code ¤ 6.204(c).

1 Sexual orientation is NOT CITED as a justification for

exclusion by either law.

2. Defendant Rick Perry is the Governor of the State of Texas. In that capacity, his

duties include ensuring that the laws of the State are faithfully executed. See

Texas Const. Art. IV, § 10.

a. These duties of enforcement include Article 1, Sec. 32 of the Texas

Constitution, and Texas Family Code; Title 1; Subtitle A; Chapter 2;

Subchapter A; Section 2.001 (b).




3. Defendant Greg Abbott is the Attorney General of the State of Texas. In that

capacity, he is both chief legal officer and chief law enforcement official for the

State of Texas.

a. Among his duties is the requirement that he advise state and local officials on

questions of Texas law. See Texas Const. Art. IV, § 22. These duties of

enforcement include Article 1, Sec. 32 of the Texas Constitution; Texas

Family Code; Title 1; Subtitle A; Chapter 2; Subchapter A; Section

2.001 (b); and Texas Family Code ¤ 6.204(c).

4. Defendant Mary Louise Garcia, the Tarrant County Clerk, is responsible for

issuing all marriage licenses in Tarrant County.

a. She supplies forms and instructions for filling out forms. Texas law demands

that she require that each marriage license application, when presented for

approval, be completed in accordance with Texas law, including Article 1,

Sec. 32 of the Texas Constitution; Texas Family Code; Title 1; Subtitle

A; Chapter 2; Subchapter A; Section 2.001 (b); and Texas Family Code

¤ 6.204(c).

b. Defendant Garcia requires persons applying for a marriage license, be of the

opposite sex in order for approval to be possible.

B. Laws Being Constitutionally Challenged

1. Article 1, Sec. 32 of the Texas Constitution , reads as follows:

“(a) Marriage in this state shall consist only of the union of one man and one




woman. (b) This state or a political subdivision of this state may not create or

recognize any legal status identical or similar to marriage.”

2. Texas Family Code; Title 1; Subtitle A; Chapter 2; Subchapter A; Section

2.001 (b) , reads as follows:

“A license may not be issued for the marriage of persons of the same sex.”

3 . Texas Family Code ¤ 6.204(c), which reads as follows:

“The state or an agency or political subdivision of the state may not give effect

to a:

(1) public act, record, or judicial proceeding that creates,

recognizes, or validates a marriage between persons of the SAME

SEX or a civil union in this state or in any other jurisdiction; or

(2) right or claim to any legal protection, benefit, or responsibility

asserted as a result of a marriage between persons of the SAME

SEX or a civil union in this state or in any other jurisdiction.

4. Both preceding laws at the center of this challenge, each according to its own

language, cite sex and ONLY SEX, as the sole criterion for which otherwise eligible

individuals are to be denied participation in the state-sanctioned institution of marriage.

III. ARGUMENT

A. Summary Judgment Standard

Summary judgment is appropriate where there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).




The moving party seeking summary judgment has the initial burden of showing that there is no

genuine issue of material fact. (See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.

Ct. 1598 (1970); Zozlow v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir. 1982)).

Once the moving party has met its burden by presenting evidence that would entitle the moving

party to a directed verdict at trial, the burden shifts to the responding party to set forth specific

facts demonstrating that there is a genuine issue of material fact for trial. ( Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-51 (1986); see also Cal. Arch. Bldg. Prod., Inc., v.

Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987)).

A material fact is one that affects the outcome of the litigation and requires a trial to

resolve the differing versions of the truth. ( Anderson, 477 U.S. at 248 - 249; see also

SEC v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982)). Where the record taken as a

whole could not lead a rational trier of fact to find for the nonmoving party, there is no

“genuine issue for trial.” ( Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S.

253, 289 (1968))).

According to FED. R. CIV. P. 56(c)(1)(A), included amongst the acceptable items that

may be used to support factual positions include, “…affidavits or declarations, stipulations

(including those made for purposes of the motion only).” Attached to this document, the Court

will find Plaintiffs’ sworn affidavits, each affirming the factual events concerning the alleged

sex-based discrimination perpetrated by each Defendant.

Here, there is no genuine conflict of material fact. Thus, Plaintiffs are entitled to

judgment as a matter of law. Undisputed factual evidence establishes that Defendants acted in a




discriminatory manner inconsistent with U.S. Const. Amend. XIV, against Plaintiffs by enforcing

Article 1, Sec. 32 of the Texas Constitution; Texas Family Code; Title 1; Subtitle A;

Chapter 2; Subchapter A; Section 2.001 (b); and Texas Family Code ¤ 6.204(c), thus

denying Plaintiffs constitutionally protected right to lawful marriage, causing substantial injury as

described in Elrod v. Burns, 427 U.S. 347, 373 (1976) “The loss of First Amendment

Freedoms, even for minimal periods of time, unquestionably constitutes irreparable

injury.”

B. Baker v. Nelson Is No Longer Controlling Precedent

Since attempting to articulate this point more effectively than United States District

Judge Robert J. Shelby would be an exercise in futility, his assessment of Baker’s relevance

shall be quoted, in it’s entirety, here:

“In 1971, two men from Minnesota brought a lawsuit in statecourt arguing that Minnesota was constitutionally required to allow them to marry. Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971).

The Minnesota Supreme Court found that Minnesota’s restrictionof marriage to opposite-sex couples did not violate either the EqualProtection Clause or the Due Process Clause of the Fourteenth Amendment. Id. at 186-87. On appeal, the United States SupremeCourt summarily dismissed the case “for want of a substantialfederal question.” Baker v. Nelson, 409 U.S. 810, 810 (1972).

Utah [in this case, Texas] argues that the Court’s summary dismissal in Baker is binding on this court and that the presentlawsuit should therefore be dismissed for lack of a substantialfederal question. But the Supreme Court has stated that asummary dismissal is not binding “when doctrinal developments

indicate otherwise.” Hicks v. Miranda, 422 U.S. 332, 344 (1975).Here, several doctrinal developments in the Court’s analysis

of both the Equal Protection Clause and the Due Process Clause asthey apply to gay men and lesbians demonstrate that the Court’ssummary dismissal in Baker has little if any precedential effecttoday. Not only was Baker decided before the Supreme Court heldthat sex is a quasi-suspect classification, see Craig v. Boren, 429U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 688




(1973) (plurality op.), but also before the Court recognized that theConstitution protects individuals from discrimination on the basis of sexual orientation. See Romer v. Evans, 517 U.S. 620, 635-36(1996). Moreover, Baker was decided before the Supreme Courtheld in Lawrence v. Texas that it was unconstitutional for a state to

“demean [the] existence [of gay men and lesbians] or control theirdestiny by making their private sexual conduct a crime.” 539 U.S.558, 578 (2003). As discussed below, the Supreme Court’s decisionin Lawrence removes a justification that states could formerly citeas a reason to prohibit same-sex marriage.

The State points out that, despite the doctrinal developmentsin these cases and others, a number of courts have found thatBaker survives as controlling precedent and therefore precludesconsideration of the issues in this lawsuit. See, e.g., Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir.2012) (holding that Baker “limit[s] the arguments to ones that do

not presume to rest on a constitutional right to same-sexmarriage.”); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1002-03 (D.Nev. 2012) (ruling that Baker barred the plaintiffs’ equalprotection claim). Other courts disagree and have decidedsubstantially similar issues without consideration of Baker. See,e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal.2010) (ruling that California’s prohibition of same-sex marriage violated the Due Process and Equal Protection Clauses of theFourteenth Amendment). In any event, all of these cases weredecided before the Supreme Court issued its opinion in Windsor.

As discussed above, the Court’s decision in Windsor does notanswer the question presented here, but its reasoning isnevertheless highly relevant and is therefore a significant doctrinaldevelopment. Importantly, the Windsor Court foresaw that itsruling would precede a number of lawsuits in state and lowerfederal courts raising the question of a state’s ability to prohibitsame-sex marriage, a fact that was noted by two dissenting justices. The Honorable John Roberts wrote that the Court “may inthe future have to resolve challenges to state marriage definitionsaffecting same-sex couples.” Windsor, 133 S. Ct. at 2697 (Roberts,C.J., dissenting). And Justice Scalia even recommended how this

court should interpret the Windsor decision when presented withthe question that is now before it: “I do not mean to suggestdisagreement . . . that lower federal courts and state courts candistinguish today’s case when the issue before them is state denialof marital status to same-sex couples.” Id. at 2709 (Scalia, J.,dissenting). It is also notable that while the Court declined to reachthe merits in Perry v. Hollingsworth because the petitioners lackedstanding to pursue the appeal, the Court did not dismiss the case




outright for lack of a substantial federal question. See 133 S. Ct.2652 (2013). Given the Supreme Court’s disposition of both Windsor and Perry, the court finds that there is no longer any doubt that the issue currently before the court in this lawsuitpresents a substantial question of federal law.

As a result, Baker v. Nelson is no longer controlling precedentand the court proceeds to address the merits of the questionpresented here.”

( Kitchen v. Herbert , Memorandum Decision and Order, p. 12-16, 2013).

C. Sex is a Quasi-Suspect Class Entitled to Heightened Scrutiny

According to Supreme Court jurisprudence set by Craig v. Boren; Glenn v.

Brumby; J.E.B. v. Alabama; and Mississippi University for Women v. Hogan, and

United States v. Virginia, sex is considered to be a quasi-suspect classification, subject to

heightened judicial scrutiny under The Equal Protection Clause and The Due Process Clause

of U.S. Const. Amend. XIV.

To survive heightened scrutiny, Defendants must show that Section 32 is narrowly

tailored to effectuate an important government objective, Zablocki, 434 U.S. at 388, or that

Section 32 is “substantially related to an important governmental objective,” ( Clark v. Jeter ,

486 U.S. 456, 461 (1988) (applying intermediate scrutiny). Under this standard, the Court must

find that statutory classification reflects “a reasoned judgment consistent with the ideal of equal

protection by inquiring whether it may be fairly viewed as furthering a substantial interest of the

state.” ( Plyler , 457 U.S. at 217-18). “The justification must be genuine, not hypothesized or

invented post hoc in response to litigation,” (United States v. Virginia, 518 U.S. 515, 533

(1996)). Defendants cannot show that the Texas’ same-sex marriage ban satisfies heightened

scrutiny, especially when the U.S Constitution provides that convicted felons cannot be denied




the very same right (Turner , 482 U.S. at 94-96) in which Plaintiffs McNosky and Stricker are

presently fighting to exercise. There is ABSOLUTELY NO ‘important government objective’

served by denying the same right to law-abiding same-sex couples.

The Court does not need to decide whether Section 32 fails heightened scrutiny

because Section 32 cannot even satisfy the more-lenient rational basis test. ( Romer , 517 U.S.

at 631). To survive the rational basis test, Section 32 must bear at least some rational

relationship to a legitimate government purpose. Id.; (see City of Cleburne, 473 U.S. at 446)

(holding that even when there is a legitimate government purpose, the discrimination must bear

at least some rational relationship to that purpose); ( Heller v. Doe, 509 U.S. 312, 321 (1993))

(rational basis test requires that the proffered justification for a law “must find some footing in

the realities of the subject addressed by the legislation”). Thus, courts “insist on knowing the

relation between the classification adopted and the object to be attained.” ( Romer, 517 U.S. at

632). A law cannot survive rational basis scrutiny unless it is “narrow enough in scope and

grounded in a sufficient factual context for [the court] to ascertain some relation between the

classification and the purpose it serve[s].” Id. at 632-33. “By requiring that the classification

bear a rational relationship to an independent and legitimate legislative end, we ensure that

classifications are not drawn for the purpose of disadvantaging the group burdened by the law.”

Id. at 633. In Kitchen v. Herbert, the Court had a strikingly similar conclusion regarding

Utah’s same-sex marriage ban, stating:

“The law differentiates on the basis of sex and closely resembles the type of law containing discrimination of an unusualcharacter that the Supreme Court struck down in Romer andWindsor . But even without applying heightened scrutiny to Amendment 3, the court finds that the law discriminates on the basis of sexual identity without a rational reason to do so. Because Amendment 3 fails even rational basis review , the court finds




that Utah’s prohibition on same-sex marriage violates thePlaintiffs’ right to equal protection under the law.”

(emphasis added, Kitchen v. Herbert , Memorandum Decision and Order, p. 50, 2013).

At issue in Craig v. Boren , was the State of Oklahoma’s statute, which prohibited the

sale of beer to male persons who were under 21 years of age, yet allowed the sale to female

persons who were merely 18 years of age. Regarding this Oklahoma statute, the ONLY

disqualifier for being able to purchase the consumable under the age of 21 as the purchaser’s

biological sex. In Craig , the Court held that, “Oklahoma's gender-based differential

constitutes an invidious discrimination against males 18-20 years of age in violation of

the Equal Protection Clause.” (Craig v. Boren, 429 U.S. 190 (1976)).

In Mississippi University for Women v. Hogan , “the narrow issue of whether a

state statute that excludes males from enrolling in a state-supported professional nursing school

violates the Equal Protection Clause of the Fourteenth Amendment…In 1884, the Mississippi

Legislature created the Mississippi Industrial Institute and College [p720] for the Education of

White Girls of the State of Mississippi, now the oldest state-supported all-female college in the

United States. 1884 Miss.Gen.Laws, Ch. 30, § 6. The school, known today as Mississippi

University for Women (MUW), has from its inception limited its enrollment to women.” The

Court concluded that, “the State's policy of excluding males from MUW's School of

Nursing violates the Equal Protection Clause of the Fourteenth Amendment.”

( Mississippi University for Women v. Hogan, 458 U.S. 718 (1982)).

In United States v. Virginia , the Court held that, “Parties who seek to defend

gender-based government action must demonstrate an “exceedingly persuasive justification” for


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that action. Neither federal nor state government acts compatibly with equal protection when a

law or official policy denies to women, simply because they are women, full citizenship

stature—equal opportunity to aspire, achieve, participate in and contribute to society based on

their individual talents and capacities. To meet the burden of justification, a State must show “at

least that the [challenged] classification serves ‘important governmental objectives and that the

discriminatory means employed’ are

‘substantially related to the achievement of those objectives.’” (United States v. Virginia, 518

U.S. 515 (1996)). As previously noted, no such justification can be reasonably said to exist, nor

aided by Texas’s same-sex marriage ban.

In Glenn v. Brumby , the Appeals Court held that discriminating against someone on

the basis of his or her gender non-conformity constitutes sex-based discrimination under the

Equal Protection Clause. The Court held that, “discrimination against a transgender individual

because of her gender non-conformity is sex discrimination, whether it’s described as being on

the basis of sex or gender.” Also, that sex discrimination includes discrimination

against…persons because of their failure to comply with stereotypical gender norms. All

persons, whether transgender or not, are protected from discrimination on the basis of

gender stereotype. For example, courts have held that plaintiffs cannot be discriminated

against for wearing jewelry that was considered too effeminate, carrying a serving tray too

gracefully, or taking too active a role in child-rearing. An individual cannot be punished because

of his or her perceived gender non-conformity. Because these protections are afforded to

everyone, they cannot be denied to a transgender individual. The nature of the discrimination is

the same; it may differ in degree but not in kind, and discrimination on this basis is a form of


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sex-based discrimination that is subject to heightened scrutiny under the Equal

Protection Clause. Ever since the Supreme Court began to apply heightened scrutiny to

sex-based classifications, its consistent purpose has been to eliminate discrimination on the basis

of gender stereotypes.” (Glenn v. Brumby et al., 724 F. Supp. 2d 1284 (N.D. Ga. 2010),

aff'd, 663 F.3d 1312 (11th Cir. 2011))

Furthermore, Article 1, Sec. 32 of the Texas Constitution, and Texas Family Code;

Title 1; Subtitle A; Chapter 2; Subchapter A; Section 2.001 (b), discriminate solely on the

basis of biological sex. This is clearly illustrated by each law’s text, outlined again, here:

∙ Article 1, Sec. 32 of the Texas Constitution, reads as follows:

“(a) Marriage in this state shall consist only of the union of one man

and one woman. (b) This state or a political subdivision of this state

may not create or recognize any legal status identical or similar to

marriage.”

∙ Texas Family Code; Title 1; Subtitle A; Chapter 2; Subchapter A; Section

2.001 (b), reads as follows:

“A license may not be issued for the marriage of persons of the same

sex.”

∙ Texas Family Code ¤ 6.204(c ), which reads as follows:

“The state or an agency or political subdivision of the state may not give effect

to a:

(1) public act, record, or judicial proceeding that creates, recognizes, or

validates a marriage between persons of the SAME SEX or a civil






union in this state or in any other jurisdiction; or

(2) right or claim to any legal protection, benefit, or responsibility

asserted as a result of a marriage between persons of the SAME SEX

or a civil union in this state or in any other jurisdiction.

All three preceding laws are completely devoid of any reference to sexual

orientation.

As in the above-cited cases, Plaintiffs McNosky and Stricker are clearly being

discriminated against on the basis of their sex due to their failure to conform to gender norms,

strictly enforced by Texas’s same-sex marriage ban. Effectively, each plaintiff is being legally

barred from marrying an otherwise eligible male individual since the right to marry a male is

exclusively the domain of female persons, and BECAUSE they are female. The basis of this

discrimination is the sex of the Plaintiffs, and ONLY their sex.

The Court need not speculate as to whether or not Chris and Sven would be allowed to

lawfully marry in the State of Texas if one of them happened to be female, because it is an

undisputable, cold, hard fact that they would certainly be allowed.

Without demonstrating that Texas’s same-sex marriage ban serves, “important

governmental objectives and that the discriminatory means employed’ are

‘substantially related to the achievement of those objectives;” Texas’s same-sex

marriage ban clearly fails rational basis scrutiny, as well as heightened scrutiny. Thus, the ban on

same-sex marriage is in direct violation of the Equal Protection Clause of U.S. Const. Amend.

XIV.

Most recently, in the U.S. District Court of Utah’s Central Division’s Kitchen v.




Herbert (2013), the Court, ruling in favor of the Plaintiffs’, concurred with the Plaintiffs’

rationale that Utah’s same-sex marriage ban DID, in fact, discriminate on the basis of sex,

stating;

“The State [Utah] concedes that Amendment 3 involvessex-based classifications because it prohibits a man from marryinganother man, but does not prohibit that man from marrying a woman. Nevertheless, the State argues that Amendment 3 doesnot discriminate on the basis of sex because its prohibition againstsame-sex marriage applies equally to both men and women. TheSupreme Court rejected an analogous argument in Loving v. Virginia, 388 U.S. 1, 8-9 (1967). In Loving, Virginia argued that itsanti-miscegenation laws did not discriminate based on race becausethe prohibition against mixed-race marriage applied equally to

both white and black citizens. Id. at 7-8. The Court found that “thefact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawnaccording to race.” Id. at 9. Applying the same logic, the court findsthat the fact of equal application to both men and women does notimmunize Utah’s Amendment 3 from the heightened burden of justification that the Fourteenth Amendment requires of state lawsdrawn according to sex.

But because the court finds that Amendment 3 fails rational basis review, it need not analyze why Utah is also unable to satisfy the more rigorous standard of demonstrating an “exceedingly persuasive” justification for its prohibition against same-sexmarriage. Virginia, 518 U.S. at 533.”

( Kitchen v. Herbert , Memorandum Decision and Order, p. 35, 2013)

As in Utah, Texas’s same-sex marriage ban also discriminates against individuals on the

basis of their sex, in violation of U.S. Const. Amend. XIV.

There has been no ruling by the Supreme Court of the United States since deciding the

first of these cases, which overturns this 38-year-old precedent.




D. Marriage Restrictions on Same-Sex Couples Must Comply with Equal

Protection and Due Process

According to the U.S. Const. Amend. XIV,

“No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.”

E. Texas Same-Sex Marriage Ban Does Not Comply With Equal Protection Nor

Due Process

The Supreme Court presently recognizes that marriage and domestic relations is a

matter generally left to the states. ( Ex parte Burrus, 136 U.S. 586, 593-94 (1890) (“The

whole subject of the domestic relations of husband and wife, parent and child, belongs to the

laws of the states, and not to the laws of the United States”). But the restrictions imposed on

marriage by states must nonetheless comply with the Constitution. ( Loving v. Virginia,

388 U.S. 1, 12 (1967) (statute limiting marriage to same-race couples violated equal protection

and due process); ( Zablocki v. Redhail , 434 U.S. 374, 383 (1978) (statute restricting from

marriage - persons owing child support violated equal protection).

In United States v. Windsor , 133 S. Ct. 2675 (2013) the Supreme Court again

applied the principle of equal protection to a federal statute restricting marriage, the Defense of

Marriage Act (“DOMA”), which prohibited ALL federal governmental institutions from

formally recognizing ALL same-sex marriage licenses, whether issued by U.S. State or foreign




governments. This included lawful marriages from the 12 states and District of Columbia. The

Court held that the law violated equal protection and due process principles guaranteed

by the Fifth and Fourteenth Amendments.

Basically, under Supreme Court precedent, states are free to determine the criterion

necessary to obtain marriage licenses within their respective jurisdictions, but that criterion,

themselves, must be supported by legitimate state interest since they place restrictions on the

fundamental rights of citizens to marry.

Article 1, Sec. 32 of the Texas Constitution; Texas Family Code; Title 1; Subtitle

A; Chapter 2; Subchapter A; Section 2.001 (b); and Texas Family Code ¤ 6.204(c), as

applied to these Plaintiffs, violates the Equal Protection Clause of U.S. Const. Amend. XIV.

because the state has no legitimate interest in treating same-sex couples differently than

opposite-sex couples, and any interest it does articulate cannot possibly outweigh the severe

burden on same-sex married couples by denying their fundamental right to marry the individual

of their own choosing.

“In 1966, attorneys for the State of Virginia made thefollowing arguments to the Supreme Court in support of Virginia’slaw prohibiting interracial marriage: (1) “The Virginia statutes hereunder attack reflects [sic] a policy which has obtained in thisCommonwealth for over two centuries and which still obtains inseventeen states”; (2) “Inasmuch as we have already noted thehigher rate of divorce among the intermarried, is it not proper toask, ‘Shall we then add to the number of children who become the victims of their intermarried parents?’”; (3) “[I]ntermarriage

constitutes a threat to society”; and (4) “[U]nder the Constitutionthe regulation and control of marital and family relationships arereserved to the States.” Brief for Respondents at 47-52, Loving v. Virginia, 388 U.S. 1 (1967), 1967 WL 113931. These contentions arealmost identical to the assertions made by the State of Utah insupport of Utah’s laws prohibiting same-sex marriage. For thereasons discussed above, the court finds these arguments asunpersuasive as the Supreme Court found them fifty years ago.




Anti-miscegenation laws in Virginia and elsewhere were designedto, and did, deprive a targeted minority of the full measure of human dignity and liberty by denying them the freedom to marry the partner of their choice. Utah’s Amendment 3 achieves the sameresult.”

( Kitchen v. Herbert , Memorandum Decision and Order, p. 51-52, 2013).

Just like Utah, the State of Texas’s non-compelling reasons for imposing such hardship

on same –sex couples, is virtually identical to those of the State of Virginia’s anti- miscegenation

laws of old. Therefore, the State of Texas has presented NO COMPELLING REASON for

maintaining it’s ban on same-sex marriage.

F. Marriages of Opposite-Sex Couples are Treated Differently

1. The different treatment of same-sex couples from opposite-sex couples is not

supported by a legitimate state interest and imposes irreparable injury on same-sex

couples including Plaintiffs McNosky and Stricker.

2. Texas Family Code sec. 2.004(b)(6)(F) states, “to get a marriage license,

you have to swear your spouse-to-be is not "a son or daughter of a

parent's brother or sister, of the whole or half blood or by adoption.” This

statute implies that cousins, once removed (second cousins), may indeed, obtain a

valid marriage license in the State of Texas, while same-sex couples, including

Chris and Sven, are explicitly denied this right by Texas law.

3. More than 1,000 federal benefits, privileges and responsibilities are impacted by

marital status. Same-sex married couples including Chris and Sven will be denied

many of those federal benefits solely because they are of the same sex and live in




Texas. They will also be denied state and employer related benefits, such as the

right to access their spouses employer-based health benefits.

G. Plaintiffs Are Experiencing Irreparable Harm

Denying a citizen his right to free speech constitutes irreparable harm. ( Elrod v. Burns,

427 U.S. 347, 373 (1976) (“The loss of First Amendment Freedoms, even for minimal

periods of time, unquestionably constitutes irreparable injury”). Denying Plaintiffs their

first amendment rights by unduly dictating their ability to associate in a strictly legal context (I.E.

Enter into a legally binding marital contract with another individual), similarly imposes irreparable

harm as defined in Elrod. In this case, Chris and Sven are each being denied their inalienable

right of free association due to Defendants’ enforcement of Article 1, Sec. 32 of the Texas

Constitution; Texas Family Code; Title 1; Subtitle A; Chapter 2; Subchapter A; Section

2.001 (b); and Texas Family Code ¤ 6.204(c). As cited previously, both of these laws cite

sex, and ONLY sex, as the sole criterion in which individuals are to be denied participation in

this state-sanctioned institution. Neither sexual orientation, broadly, nor homosexuality,

specifically, are mentioned or even implied as potential disqualifiers for such participation. If the

basis for exclusion from participation in marriage, provided by these two laws, was indeed

sexual orientation and not sex; it could be inferred that two individuals of the same sex would

not be denied participation in the institution of marriage, provided that they both identified as

heterosexual. This is not the case.

Plaintiffs suffer irreparable harm, and will continue to suffer, irreparable harm because of

Defendants’ enforcement of Texas’s same-sex marriage ban. An injury is irreparable if money

damages cannot compensate for the harm. ( Deerfield Med. Ctr ., 661 F.2d at 332). While




Plaintiffs undoubtedly suffer financial harm from their inability to marry, see Badgett Decl . ¶¶

32-68 (listing economic harms that Section 32 causes same-sex couples), no amount of

money can compensate them for the denial of their constitutional rights. The fact that

Section 32 denies Plaintiffs their constitutional right to marry is, per se, irreparable harm. ( Elrod

v. Burns, 427 U.S. 347, 373 (1976)) again: (“The loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes irreparable harm.”);

( Deerfield , 661 F.2d at 338 (“We have already determined that the constitutional right of

privacy is ‘either threatened or in fact being impaired,’ and this conclusion mandates a finding of

irreparable harm.”) (quoting Elrod , 427 U.S. at 373)).

Thus, Section 32 irreparably harms Plaintiffs, and this factor weighs in favor of injunctive

relief sought by Plaintiffs.

H. The Balance of Hardships and the Public Interest Favors The Issuance of an

Injunction

In constitutional cases, public interest is difficult to separate from the likelihood of

success on the merits because “the public interest is promoted by the robust enforcement

of constitutional rights.” ( Am. Freedom Def. Initiative v. Suburban Mobility for Reg.

Transp., 698 F.3d 885, 896 (6th Cir.2012)). In this case, the public interest is clearly served

by awarding and injunction. The State of Texas is not harmed by treating same-sex couples on

an equal footing with that of opposite-sex couples. The harm to same-sex couples is severe.

They are denied the freedom of association, freedom of speech, tax benefits, public benefits and

employer benefits tied to their status as legally married in Texas.

“The State of Utah has provided no evidence thatopposite-sex marriage will be affected in any way by same-sexmarriage. In the absence of such evidence, the State’s unsupported




fears and speculations are insufficient to justify the State’s refusalto dignify the family relationships of its gay and lesbian citizens.Moreover, the Constitution protects the Plaintiffs’ fundamentalrights, which include the right to marry and the right to have thatmarriage recognized by their government. These rights would be

meaningless if the Constitution did not also prevent thegovernment from interfering with the intensely personal choices anindividual makes when that person decides to make a solemncommitment to another human being. The Constitution thereforeprotects the choice of one’s partner for all citizens, regardless of their sexual identity.”

( Kitchen v. Herbert , Memorandum Decision and Order, p. 52, 2013).

Just like Utah, the State of Texas has presented no such evidence illustrative of it’s

perpetual and indefinite need to deny same-sex couples the same dignity and rights afforded to

opposite-sex couples. Therefore, there is no compelling reason for Texas’s same-sex marriage

ban to remain valid in the eyes of the Court. There is abundant evidence favoring Plaintiffs’

request for injunctive relief.

Accordingly, the State of Texas has failed to meet its burden of justification, and Article

1, Sec. 32 of the Texas Constitution; Texas Family Code; Title 1; Subtitle A; Chapter 2;

Subchapter A; Section 2.001 (b); and Texas Family Code ¤ 6.204(c), must be invalidated

by this Court under the Equal Protection Clause of the Fourteenth Amendment as prohibited

discrimination based solely on plaintiffs' biological sex.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that its motion for summary

judgment be granted, and that an order be entered enjoining Defendants, and all relevant

parties, from future enforcement of, or compliance with Article 1, Sec. 32 of the Texas

Constitution; Texas Family Code; Title 1; Subtitle A; Chapter 2; Subchapter A; Section




2.001 (b); and Texas Family Code ¤ 6.204(c).

Respectfully submitted this 12th day of January, 2014.

/s/ Christopher Daniel McNosky __ CHRISTOPHER DANIEL MCNOSKY

Pro Se

/s/ Sven Stricker __________________

SVEN STRICKER

Pro Se

CERTIFICATE OF SERVICE

I hereby certify all defendants were served with a copy of this PLAINTIFFS’

MOTION FOR SUMMARY JUDGEMENT by email service on JANUARY 12, 2014, and

putative counsel for Defendants have also been served by email on that date.

/s/ Christopher Daniel McNosky_______

CHRISTOPHER DANIEL MCNOSKY

/s/ Sven Stricker ___________________

SVEN STRICKER




Case 1:13-cv-00631-SS Document 48-1 Filed 01/12/14 Page 1 of 3

mcnosky v perry plaintiffs’ amended motion for summary judgement 1-12-2014

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