March 25, 2014
A same-sex couple who filed a lawsuit challenging Texas’ same-sex marriage ban is pushing back on the state’s attempt to have their case halted while a different proceeding is underway in the Fifth Circuit Court of Appeals.
Chris McNosky and Sven Stricker are representing themselves in the lawsuit, which was filed in a federal district court in Austin. Their case is one of three filed in federal court after the Supreme Court’s decision in United States v. Windsor. The lawsuit challenges the ban as a discriminatory classification based on the couples sex instead of the more typical argument that marriages bans discriminate against same-sex couples based on their sexual orientation.
The McNosky case and a second one, Zahrn v. Perry, a class-action lawsuit, are being heard by the same district court judge. The state filed a motion to put those two cases on hold after a different district court judge ruled in favor of the same-sex couples in a third case, DeLeon v. Perry. The order in the case is temporary: it’s a preliminary order issued against enforcement of the ban while the case is pending in district court. However, the judge stayed the temporary order, and the state appealed it to the Fifth Circuit Court of Appeals.
According to the state’s filing, the Zahrn plaintiffs don’t oppose putting their case on hold pending the appeal of the preliminary injunction, but in a new filing, the McNosky plaintiffs take issue with the state’s request.
The couple’s opposition to a stay is based on the state’s argument that while “there are some issues presented in McNosky and Zahrn that were not addressed in the De Leon preliminary injunction order, most notably the DOMA Section 2 and right-to-travel claims raised in Zahrn and the sex-discrimination theory advanced in McNosky”, the “lack of perfect overlap does not counsel against a stay.” The state argues that the other claims could be addressed after the appeal.
The McNosky couple suggests that the cases are completely different, and that a Fifth Circuit ruling against the DeLeon plaintiffs would necessarily involve a decision holding only that the ban doesn’t discriminate on the basis of sexual orientation, the only claim raised in the DeLeon case. That would leave open the possibility of a ruling that the ban violates the Equal Protection Clause because both members of a couple are the same sex. Because the issues are distinct, “no decision in DeLeon can affect analysis of McNosky’s entirely sex-based challenge.” The Zahrn plaintiffs raise the same sexual orientation discrimination claim as the DeLeon plaintiffs.
Further, the couple argues, classifications based on sex are reviewed under a heightened form of judicial scrutiny, while classifications based on sexual orientation are subject to the most lenient form of scrutiny. The distinct forms of judicial review make the cases even more dissimilar, they claim.
An attorney for Lambda Legal has suggested that he believes the state’s motion to stay the cases won’t succeed: “Ken Upton, senior staff attorney for Lambda Legal’s Dallas office, said he expects the motion to stay the cases to fail because those cases are different than the San Antonio one (DeLeon). He said the appeal is about the preliminary injunction, not an appeal on a final decree, so he expects U.S. District Judge Sam Sparks to reject the motion and hear his cases.
“I think there’s a pretty good argument that they’re entitled to have their cases heard,” Upton said. “You don’t have a final ruling anywhere in Texas.””
The judge could rule on the request soon.
Thanks to Kathleen Perrin for these filings