When the U.S. Supreme Court struck down parts of the federal Defense of Marriage Act in June, the historic ruling started a quiet race to federal courthouses in Texas by same-sex couples seeking to overturn the state law forbidding them from marrying.
In first place to the courthouse: two pro se plaintiffs, Christopher McNosky of Colleyville and Sven Stricker of Bedford. Largely unnoticed by the media, they filed the first such lawsuit against state officials on July 29 in Austin federal court.
The couple seeks a federal injunction preventing state and county officials from enforcing Texas Constitution Article 1 and Texas Family Code §2.001 (b) so “they would then be allowed to procure a marriage license issued by the State of Texas,” according to the amended complaint they filed in McNosky v. Perry on Oct. 9 in U.S. District Court for the Western District of Texas.
In an email, McNosky expressed confidence about proceeding without a lawyer. “We felt that we had the ability to handle such a case pro se, due to the narrow scope and simplicity of our argument. So far, so good,” he wrote.
A.G. Seeks Consolidation
If the statewide officeholder defendants get their way, McNosky may have lawyers at the plaintiffs’ table with him, as three cases would be consolidated. Gov. Rick Perry and Attorney General Greg Abbott are defendants in all three suits. The A.G. represents them, as well asDepartment of State Health Services Commissioner David Lakey,a defendant in one of the suits.On Nov. 12 in McNosky, the governor, the A.G. and the state health commissioner filed a motion to consolidate McNosky and the two other cases filed subsequently, each of which involves two attorney-represented couples.
The state officials argue in their motion that consolidation is necessary “for trial and scheduling purposes only, pursuant to Rule 42(a) Federal Rules of Civil Procedure due to common questions of fact and law, for the convenience of the parties, witnesses, and the Court, to promote the just and efficient conduct of the actions, and to avoid a multiplicity of suits, duplication of testimony, and unnecessary expense and delay.”
Consolidation, Class Certification or Neither?
McNosky and Stricker on Nov. 19 filed a response opposing the A.G.’s motion, arguing that the three cases lacked common legal questions. In his email, McNosky explained that the A.G. may perceive that “a successful consolidation of our cases would put him and Governor Perry at strategic procedural advantage.”
The plaintiffs in the two other lawsuits also have filed objections to the proposed consolidation.
“We are all in agreement in the ultimate goal,” said Daniel “Neel” McNeel Lane Jr., a partner in the San Antonio office of Akin Gump Strauss Hauer & Feld, who represents the two couples in De Leon v. Perry in the U.S. District Court for the Western District of Texas in San Antonio. But Lane noted that his clients intentionally did not seek class certification—unlike the plaintiffs in McNosky and the third case—because they believe the relief sought will benefit all those seeking same-sex marriages in Texas.
Lane also noted that not all the plaintiffs in the three cases have the same legal status, as some have married in states where same-sex unions are legal, while others seek to marry in Texas.
“We are all friends, but we are not coordinating cases,” said Austin solo Jody Scheske. Scheske represents the two couples in the third lawsuit, Zahrn v. Perry.
The Zahrn plaintiffs are seeking class certification in their suit, filed in Austin federal court. Scheske believes a class certification ultimately will best serve the interests of all same-sex partners who want to marry in Texas.
County Clerks’ Positions
Each of the three suits names a county clerk as a defendant.
Tarrant County Clerk Mary Louise Garcia,named in her official capacity as a defendant in McNosky, hasn’t filed an answer and did not return a call seeking comment.
In De Leon, Bexar County Clerk Gerard “Gerry” Rickhoff, named in his official capacity, has not filed an answer. But he told Texas Lawyer earlier: “I have strong feelings about these issues. I have my own personal feelings about what is right and fair. As I read through the lawsuit, it brings up an uncomfortable truth of what a reasonable person would expect as equal rights under the law.”
In Zahrn, the plaintiffs named Dana DeBeauvoir, the Travis County clerk, in her official capacity as a defendant. DeBeauvoir filed an answer on Nov. 22, stating as an affirmative defense that she was acting in accordance with state law when she denied marriage licenses to the plaintiffs and that she is entitled to official immunity.
But DeBeauvoir also states in the same answer that she “personally believes the State of Texas, through Article I, section 32 of the Texas Constitution and sections 2.001 and 6.204 of the Texas Family Code, imposes inequality on gays and lesbians—by denying them the basic right to marry.”
In all three cases, the statewide-officeholder defendants have filed answers denying the allegations.
In a statement, Lauren Bean, a spokeswoman for the A.G.’s office, wrote, “The Attorney General’s Office will defend the Texas Constitution in this case just like we do in all cases where state laws are challenged in court. The U.S. Supreme Court was clear that states have independent authority to establish their marriage laws. Texans adopted a constitutional amendment defining marriage. We will defend that amendment.”