Citing legal fees, Texas AG wants appeals court to decide SA case 1st, but Lambda Legal says the cases are different, should proceed
ARLINGTON — When Chris McNosky and Sven Stricker talk about their strategy to win the freedom to marry in Texas, they come across as unfazed, determined and admittedly out of their element.
The couple is one of five couples in three federal lawsuits suing for the freedom to marriage in the Lone Star State. They sat down with Dallas Voice recently at the University of Texas at Arlington, where Sven is currently studying, to discuss their lawsuit filed back in July.
But while they’re representing themselves in the fight for marriage equality, the case, and another one filed by an Austin couple, may be placed on hold until the 5th Circuit Court of Appeals hears an appeal in a San Antonio lawsuit after a federal judge ruled last month that the state’s ban on same-sex marriage is unconstitutional. But LGBT legal experts predict the cases may still move forward.
McNosky and Stricker’s suit was filed in a federal Austin court and is the second of its kind in the state.
Retired Galveston nuclear engineer Domenico Nuckols filed the first federal marriage equality lawsuit in early July, but withdrew the case a few weeks after talking with legal experts about his case. Nuckols was in a long-term relationship, but hadn’t been denied a marriage license in the state and didn’t plan to get married. Rather, he told Dallas Voice at the time, he wanted other same-sex couples to have the right to marry.
Shannon Zahrn and Catherine Zahrn, joined by Alexius Augustine and Andrew Simpson, later filed a suit in the same Austin federal court. They’ve been together since 2002 and moved to Austin in 2006, according to the suit. They have a 3-year-old daughter, and have legal guardianship of Shannon Zahrn’s niece.
Augustine and Simpson met in 2003, when Augustine was a student in Malaysia and Simpson was working for a computer company, according to the suit.
Augustine later immigrated to the U.S., and the couple bought a house in Austin. They’ve been engaged since 2012 and plan to adopt child in the near future.
Attorneys for the case said they aren’t speaking to media. But attorney Jason Steed said their case is a class action suit on behalf of all same-sex couples in the state. He expects a summer ruling. The cases are separate, but they will be decided at the same time per the judge’s request.
“We do have clients who’ve been waiting a long time to get married, so we’re hopeful we can get a favorable decision by late summer,” Steed wrote in an email to Dallas Voice.
Mark Phariss and Victor Holmes of Plano, joined by Austin couple Cleopatra DeLeon and Nicole Dimetman, filed a similar case in a federal San Antonio court.
The case moved forward quickly with U.S. District Judge Orlando Garcia granting a temporary injunction on the state’s marriage ban on Feb. 26. But he stayed the decision, pending appeal by the state. A notice of appeal was filed the next day, and the case will go before the 5th Circuit Court of Appeals.
Texas Attorney General Greg Abbott’s office filed a motion last week to stay the McNosky and Zahrn cases until the appeals court decides the DeLeon v. Perry case. McNosky is the only case with plaintiffs who oppose postponing the cases, according to court documents.
McNosky said this week the couple is opposed to the stay because their case deals solely with sex discrimination as the basis for preventing same-sex couples from marrying in the state, not discrimination based on sexual orientation. Both their case and the Zarhn case are expected to present arguments in late summer.
The motion mentions that not all of the same issues are present in the DeLeon case, but cites unnecessary legal and court fees by continuing the two Austin cases.
“But lack of perfect overlap does not counsel against a stay,” the motion reads. “Although the 5th Circuit’s decision in De Leon ‘may not settle every question of fact and law’ in McNosky and Zahrn, a stay nevertheless is justified because ‘in all likelihood it will settle many and simplify them all.’”
The plaintiffs have until next week to response to the AG’s request. Abbott’s office tried unsuccessfuly to combine all of the cases earlier this year.
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. 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.”
McNosky, 28, and Stricker, 26, met through mutual friends in the summer of 2010. They decided to take on marriage equality in the state after the U.S. Supreme Court struck down the federal Defense of Marriage Act in June. They applied for a marriage license in Tarrant County on July 1 and were denied. They then decided to file the lawsuit, making them the first couple in Texas to file a suit.
“We just decided instead of waiting for somebody else to act, we would go ahead and do it just in case,” McNosky said. “We thought we had a unique argument that hadn’t been used before.”
They opted to argue their right to marry based on sex discrimination alone because sex is protected more than sexual orientation, McNosky said.
The sex discrimination argument has been combined with the sexual orientation discrimination argument with mixed reviews from judges in recent lawsuits.
Upton said judges more often prefer the sexual orientation argument, though he agrees that sex discrimination is a valid argument. And the argument could be upheld in the Austin court.
“It is sex discrimination, but that hasn’t gotten much traction,” he said. “It’s not a very favorable argument. … I think it’s a good argument, but judges don’t seem to want to bite on it.”
The couple was initially trying to find legal representation, but they turned down a few offers from attorneys to take the case pro bono because they thought the case was simple, and they wanted to maintain control.
“We realized how easy this case was,” Stricker said.
But both are quick to admit they have no legal training and aren’t attorneys, though the case has made McNosky think about attending law school one day.
“We’re not attorneys. We don’t have any sort of credibility to stand on,” McNosky said. “We have the right to [pursue this case]. Are we qualified? Hell no.”
But they scored one big victory when arguing against consolidating the cases earlier this year. And for them, having their case not be thrown out of the court from the beginning and continuing is a success for them.
“I think the victory in itself is just being in that courtroom, just knowing how the procedure goes,” Stricker said, adding that they hope it was the first of many victories in the case, resulting in a win this summer. “I think it was a victory.”
This article appeared in the Dallas Voice print edition March 21, 2014.