McNosky v Perry STATE DEFENDANTS’ RESPONSE TO PLAINTIFFS’ AMENDED MOTION 12-23-2013

8/13/2019 McNosky v Perry STATE DEFENDANTS RESPONSE TO PLAINTIFFS AMENDED MOTION 12-23-2013

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IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CHRISTOPHER DANIEL McNOSKY,

and SVEN STRICKER,Plaintiffs,

v.

TEXAS GOVERNOR RICK PERRY, et al.Defendants.

Case No. 1:13-CV-0631 SS

STATE DEFENDANTS RESPONSE TO PLAINTIFFS AMENDED MOTION FORTEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

_________________________________________________________________________

TO THE HONORABLE SAM SPARKS:

In their Amended Motion for Temporary Restraining Order and Preliminary Injunction

(Dkt. 24), Plaintiffs ask the Court to change the status quo and temporarily rewrite longstanding

Texas law in contravention of binding Supreme Court precedent. It has always been the law in

Texas that marriage is defined as a union of one man and one woman. See, e.g.,In re Marriage

of J.B. and H.B., 326 S.W.3d 654, 675 (Tex. App.Dallas 2010, pet. granted) (citation omitted)

(noting that [u]ntil 2003, no state recognized same-sex marriages); see also, e.g., Grigsby v.

Reib, 153 S.W. 1124, 1130 (Tex. 1913) (Marriage is not a contract, but a status created by

mutual consent of one man and one woman.). Plaintiffs attempt to change the status quo by

judicially repealing well-established Texas marriage law should be denied. Plaintiffs have

utterly failed to make the necessary clear showing that they are likely to prevail on the merits of

their constitutional challenge, and the harm that the State and same-sex couples alike would

Case 1:13-cv-00631-SS Document 39 Filed 12/23/13 Page 1 of 11


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suffer if the Court enjoined state law greatly outweighs any inconvenience Plaintiffs would

endure during the pendency of their lawsuit.

I. PLAINTIFFS MUST MAKE A CLEAR SHOWING THAT THEY QUALIFY FOR THE

EXTRAORDINARY AND DRASTIC REMEDYTHAT THEY SEEK.

A preliminary injunction is an extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief. Winter v. Natural Res. Def. Council,

Inc., 555 U.S. 7, 22 (2008) (emphasis added); see also Mazurek v. Armstrong, 520 U.S. 968, 972

(1997) (per curiam) (an injunction is an extraordinary and drastic remedy, one that should not

be granted unless the movant, by a clear showing, carries the burden of persuasion) (citation

omitted).

To be entitled to a preliminary injunction, the applicant must show (1) a substantial

likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable

injury if the injunction is not granted, (3) his threatened injury outweighs the threatened harm to

the party whom he seeks to enjoin, and (4) granting the preliminary injunction will not disserve

the public interest. We have cautioned repeatedly that a preliminary injunction is an

extraordinary remedy which should not be granted unless the party seeking it has clearly carried

the burden of persuasion on all four requirements (internal citations omitted). Bluefield Water

Ass'n, Inc. v. City of Starkville, Miss., 577 F. 3d 250, 252 253 (5th Cir. 2009).

Contrary to Plaintiffs contention, Pls Mot. 8, a plaintiff who seeks a preliminary

injunction must demonstrate much more than serious questions going to the merits. It is not

enough even to show a likelihood of success on the merits by a preponderance of the evidence.

Instead, the plaintiff must make a a clear showing of a likelihood of success of the merits, one

that is reasonably free from doubt, before this extraordinary and drastic remedy can be

entertained. See Winter, 555 U.S. at 22-23; Mazurek, 520 U.S. at 972; Young, 209 U.S. at 166.



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The Supreme Courts caution regarding preliminary injunctions is rooted partly in constitutional

concerns that arise whenever a single federal judge enjoins the implementation of a States

democratically enacted laws, especially before a definitive finding that the state law contravenes

a provision of supreme federal law. See generallyDavid P. Currie, The Three-Judge District

Court in Constitutional Litigation, 32 U. CHI. L. REV. 1 (1964). The Plaintiffs have utterly

failed to meet that difficult burden here for the following reasons.

II. PLAINTIFFS HAVE NOT MADE A CLEAR SHOWING THAT IS REASONABLY FREE

FROM DOUBTTHAT THEY WILL PREVAIL ON THE MERITS.

A. Plaintiffs Failed to Satisfy the Procedural and Substantive Requirements for

a TRO.

As an initial matter, Plaintiffs did not comply with the basic requirements for a temporary

restraining order, even after amending their motion. Specifically, their motion did not include an

affidavit or verified complaint, as required by Rule 65(b)(1)(A). Whats more, Plaintiffs have

not raised any argument or alleged any facts that they will suffer immediate and irreparable

injury, loss, or damage if a TRO does not issue before the court makes a decision regarding a

preliminary injunction. See Fed. R. Civ. P. 65(b). Accordingly, the Court should deny

Plaintiffs request for a TRO without further consideration.

B. Plaintiffs Have Not Made a Clear Showing That They Are Likely to

Prevail on the Merits of Their Equal-Protection Claim.

Plaintiffs cannot meet their difficult burden of showing a likelihood of success on the

merits because they have not cited a single federal appellate decision that supports their

argument and, to the contrary, binding Supreme Court precedent forecloses their constitutional

claim.

Plaintiffs argue that the challenged laws, Tex. Const. art. 1, sec. 32, and, Tex. Fam. Code

2.001, violate the equal-protection guarantee of the Fourteenth Amendment by declining to



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recognize same-sex marriages from other states and by declining to allow same-sex couples to

marry in Texas. Pls Mot. 10-20. However, Plaintiffs do not cite a single case in which any

federal appellate court has concluded that States may not limit marriage to opposite-sex couples,

and for good reason. InBaker v. Nelson, 409 U.S. 810 (1972), the Supreme Court unanimously

dismissed, for want of a substantial federal question, an appeal from the Minnesota Supreme

Court presenting the same questions at issue here: whether a States refusal to sanction same-sex

marriage violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

See also Baker v. Nelson, No. 71-1027, Jurisdictional Statement at 3 (Oct. Term 1972) (Ex. 1);

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) (en banc). Summary dispositions of this nature

are binding Supreme Court precedent on the precise question that was before the Supreme Court.

See Mandel v. Bradley, 432 U.S. 173, 176 (1977). There is no material difference between the

claims rejected inBakerand the claims Plaintiffs bring to this court. Those claims are therefore

foreclosed byBaker. No court but the Supreme Court has the power to change this precedent,

and the only federal appellate court to address the issue has likewise held that States do not

violate the Constitution by maintaining the traditional definition of marriage. Citizens for Equal

Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006). With no case law on their side and a Supreme

Court decision squarely against them, Plaintiffs cannot possibly make a clear showing that is

reasonably free from doubt that they are likely to succeed on the merit.

Plaintiffs cite the Supreme Courts recent decision in United States v.Windsor, 133 S.Ct.

2675 (2013) in an effort to show that Texass marriage laws violate the Equal Protection Clause,

Pls Mot. 12-14, 17, but, if anything, Windsoraffirms Texass authority to preserve traditional

marriage. The majority in Windsor took Congress to task for enacting a law that, in the

majoritys view, was designed to injure legally married same-sex couples by treating their



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marriages as second class. 133 S.Ct. at 2694. In doing so, however, the Court repeatedly

recognized the important authority States wield in defining and regulating marriage. Id. at 2689-

92. Indeed, the Court celebrated the statewide deliberative process that enabled [New Yorks]

citizens to discuss and weigh arguments for and against same-sex marriage, id. at 2689, a

process that can be meaningful only if voters are free to choose to preserve the longstanding

definition of marriage. Cf. id. at 2693-94 (noting New Yorks decision to permit same-sex

marriage reflects both the communitys considered perspective on the historical roots of the

institution of marriage and its evolving understanding of the meaning of equality). Far from

calling the people of Texass preservation of traditional marriage into question, Windsor

provides support for their authority to do so.

Additionally, the constitutionality of Texas marriage law is subject to rational-basis

review, not intermediate or strict scrutiny, as Plaintiffs erroneously suggest. Pls Mot. 15.

Plaintiffs claim that sex is a quasi-suspect classification, id., but regardless, the challenged

Texas laws do not discriminate based on sex. At most, they create a classification based on

sexual orientation, and neither the Supreme Court nor the Fifth Circuit has ever applied

heightened scrutiny to laws that classify based on sexual orientation. E.g. Romer v. Evans, 517

U.S. 620, 632 (1996) (striking down a Colorado constitutional amendment that singled out

homosexuals on the ground that it lacks a rational relationship to legitimate state interests); see

also See Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir.2004) (Neither the Supreme Court nor

this court has recognized sexual orientation as a suspect classification . . . .).

Texas law easily survives rational-basis review. Statutes enjoy a strong presumption of

validity under rational-basis review, and the law must be upheld if there is any reasonably

conceivable state of facts that could provide a rational basis for the classification.Heller v. Doe



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ex rel. Doe, 509 U.S. 312, 31920, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). [T]he judiciary

may not sit as a superlegislature to judge the wisdom or desirability of legislative policy

determinations made in areas that neither affect fundamental rights nor proceed along suspect

lines. City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L. Ed. 2d 511 (1976)

(per curiam). The party attacking the rationality of the legislative classification bears the burden

of negating every conceivable basisthat might support it. FCC v. Beach Commcs, Inc., 508 U.S.

307, 31415 (1993). Moreover, the classification adopted by the legislature need not be

perfectly tailored to its purpose in order to pass constitutional muster.

Plaintiffs fail to meet their burden because they do not even attempt to negate any

rational purpose for Texas law, much less all possible such bases, as is their burden. Rather, they

baldly allege that the purpose of the challenged provisions was to single out an unpopular group

and cause them harm. Pls Mot. 19. To support this deeply offensive indictment of every

Texas voter and legislator who favored preserving traditional marriage in Texas, Plaintiffs cite

exactly nothing. They point to nothing in the legislative record or any other source of evidence

to support this ugly assertion. Bare, unsubstantiated accusation does not satisfy Plaintiffs

burden to clearly show that they are likely to prevail on the merits.

Moreover, animus was decidedly not the purpose for the Texas laws. When the

Legislature sent the constitutional amendment to the people of Texas for a vote, it made clear the

purpose was to preserve and promote the special legal status that has always attended traditional

marriage:

A traditional marriage consisting of a man and a woman is the basis for a healthy,successful, stable environment for children. It is the surest way for a family to

enjoy good health, avoid poverty, and contribute to their community. The

sanctity of marriage is fundamental to the strength of Texas families, and thestate should ensure that no court decision could undermine this fundamental

value.



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HOUSE RESEARCH ORGANIZATION, H.J.R. 6 Bill Analysis, 79th Leg., R.S. (April 25,

2005). At the very least, this view of marriage is rational. See Bruning, 455 F.3d at 868. No

further inquiry is necessary.

Even if there was not a clear statement of legislative intent, there are any number of

conceivable rational bases for the Texas laws. For one, the understanding and definition of

marriage as between one man and one woman is deeply rooted in the history of our State, our

nation, and, indeed, all of western civilization. See, e.g., United States v. Windsor, 133 S. Ct.

2675, 2689 (2013) (noting that marriage between a man and a woman no doubt had been

thought of by most people as essential to the very definition of that term and to its role and

function throughout the history of civilization). It would be entirely rational for the people of

Texas and their elected representatives to decide that this time-tested understanding of marriage

deserves protection because traditional marriage and family are the proven building block of

society and are essential to the very survival of mankind. See Skinner v. Oklahoma ex. rel.

Williamson, 316 U.S. 535, 541 (1942) ([m]arriage and procreation are fundamental to the very

existence and survival of the [human] race); Lawrence v. Texas, 539 U.S. 558, 585 (2003)

(OConnor, J., concurring) (recognizing a legitimate state interest in preserving the traditional

institution of marriage.)

Put another way, it is perfectly rational for States to provide unique benefits and

protections to the traditional marriage union of one man and one woman in order to promote

stable family environments for procreation and the rearing of children by a mother and a father.

See, e.g., Bruning, 455 F.3d at 868. The people of Texas have chosen to do that, and Plaintiffs

have failed to clearly show that this democratically enacted decision violates the Constitution.



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III. PLAINTIFFS HAVE FAILED TO CLEAR SHOW THAT THE BALANCE OF HARMS FAVORS

THEM.

A. The Balance of the Harms Tilts in Defendants Favor.

Plaintiffs seek to enjoin a duly enacted state constitutional amendment and statute. Both

passed with overwhelming majorities, and enjoining democratically enacted legislation harms

the States officials by keeping them from implementing the will of the people that they

represent. See Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers) (Enjoining a

State from enforcing its statute subjects the State to ongoing irreparable harm.); New Motor

Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)

([A]ny time a State is enjoined by a Court from effectuating statutes enacted by representatives

of its people, it suffers a form of irreparable injury.); Coal. for Econ. Equity v. Wilson, 122 F.3d

718, 719 (9th Cir. 1997) ([I]t is clear that a state suffers irreparable injury whenever an

enactment of its people . . . is enjoined.).

On the other side of the scale, Plaintiffs only assertion of irreparable harm is an

unexplained and unfounded allegation that their inalienable right of free association is being

denied because enforcement of the law is unduly dictating their ability to associate in a strictly

legal context. Pls Mot. 21. That argument is inadequate because Plaintiffs have not even

attempted to establish a violation of the First Amendment. They advance only an equal-

protection challenge to state law in this motion, but their alleged harm is a loss of unrelated and

unexplained First Amendment freedoms. It is the Plaintiffs burden, not the Defendants, to

establish irreparable injury, and they have utterly failed to make the clear showing necessary to

satisfy that burden. 1

1Plaintiffs have challenged only some of the state laws that prevent them from obtaining a same-

sex marriage in Texas. For example, Plaintiffs do not seek preliminary injunctive relief from



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B. A Preliminary Injunction Would Disserve the Public Interest.

A preliminary injunction would countermand the constitutional decisions of the people of

Texas and the statutory policy of the Legislature, which is in itself a declaration of the public

interest which should be persuasive. Virginian Ry. Co. v. Sys. Fedn No. 40, 300 U.S. 515, 552

(1937); see alsoIllinois Bell Tel. Co. v. WorldCom Technologies, Inc., 157 F.3d 500, 503 (7th

Cir. 1998) (When the opposing party is the representative of the political branches of a

government the court must consider that all judicial interference with a public program has the

cost of diminishing the scope of democratic governance.).

IV. PRELIMINARY INJUNCTIVE RELIEF WOULD DISTURB THE STATUS QUO AND SOWUNCERTAINTY AND CONFUSION FOR THE STATE AND MANY SAME-SEX COUPLES IN

TEXAS.

There is another reason to deny Plaintiffs motion: the preliminary injunctive relief they

seek would dramatically alter the status quo and could create all sorts of legal and practical

problems for the State and for Texas residents seeking a same-sex marriage or divorce. The

purpose of a preliminary injunction is merely to preserve the relative positions of the parties until

a trial on the merits can be held. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). The

status quo in Texas is, as it has been for all time, that marriage is defined as and reserved

exclusively for the union of one man and one woman. Tex. Const. Art. I, 32(a); cf. Tex.

Fam. Code 6.204(c) (prohibiting creation or recognition of same-sex marriages). Mandatory

Texas Family Code 6.204(c) which bars an agency or political subdivision of the state from

giving effect to any public act, record, or judicial proceeding that creates, recognizes, orvalidates a marriage between persons of the same sex or a civil union in this state or in any other

jurisdiction; as well as any 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 orin any other jurisdiction. This provision prohibits any public official from doing anything to

create a same-sex marriage. Accordingly, Plaintiffs could not show they would suffer irreparable

harm but for the requested relief because even if the challenged provisions were judiciallyrevised, 6.206(c) would still prevent their marriage.



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preliminary relief, which goes well beyond simply maintaining the status quo pendente lite, is

particularly disfavored, and should not be issued unless the facts and law clearly favor the

moving party. Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976).

The temporary relief Plaintiffs seek would be particularly inappropriate in this case

because it would effectively change the legal definition of marriage in Texas. That change,

however, would likely be undone by a later ruling on the merits by this Court or a contrary ruling

by the court of appeals or the Supreme Court. Unless this Court, the Fifth Circuit, and the

Supreme Court ultimately agree with Plaintiffs position, any marriages created on the basis of a

preliminary injunction will cease to exist once the States definition of marriage is again

enforceable. Many same-sex couples and the Defendants would be faced with the inevitable

difficulty of sorting out the legal and practical problems associated with the creation and

subsequent termination of their marriages. For this reason, after the federal district court in the

Proposition 8 litigation in California ordered that same-sex marriages could commence in

California, the Ninth Circuit stayed the district courts order pending appeal. Perry. v.

Schwarzenegger, No. 10-16696, Doc. No. 14 (9th Cir. Aug. 16, 2010). And even after the Ninth

Circuit ruled Proposition 8 unconstitutional, the court of appeals stayed its mandate pending

appeal to the Supreme Court. Id., Doc. No. 425-1 (June 5, 2012). The wisdom of these

decisions is clear: Because of the practical considerations involved, a lower court should not

order the commencement of same-sex marriages when reasonable doubt exists that the lower

courts ruling will remain the law. Plaintiffs do not even acknowledge, much less offer a

solution to, this serious problem with their requested interim relief.

Conclusion

The motion for temporary restraining order and preliminary injunction should be denied.



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Respectfully submitted. GREG ABBOTT

Attorney General of Texas

DANIEL T. HODGE

First Assistant Attorney General

JONATHAN F. MITCHELL

Solicitor General

/s/ Michael P. Murphy

MICHAEL P. MURPHYAssistant Solicitor General

Texas Bar No. 24051097

WILLIAM T. DEANEAssistant Attorney General

OFFICE OF THE ATTORNEY GENERALP.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Tel.: (512) 936-2995Fax: (512) 474-2697

[email protected]

ATTORNEYS FOR STATE DEFENDANTS

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing instrument has been sent via certified

mail, return receipt requested on this 23rd

day of December, 2013, to:

Mr. Christopher Daniel McNosky

5108 Pleasant Run

Colleyville, Texas 76034

Mr. Sven Stricker

3047 Bent Tree Ct

Bedford, Texas 76021

Ms Mary Louise Garcia

Office of Public Records and Civil Courts1895 Courthouse

100 W. Weatherford

Fort Worth, TX 76196

/s/ Michael P. Murphy

MICHAEL P. MURPHY



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LY1UI S. CAl TNllB1625 Park A.venueMinneapolis, Minnesota 554Q4;A tortltyS for Appellants

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Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 1 of 13


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IN EXP.tG

JmusPIO'llOl'tAL SU1'lUtll:N'rOpinions Below ........___........_..........__..........._.......... 1JUrisdiction _______....... ................_ __. .. ... . 2Sta.tutesInvolved ......_ ......__.._......_ .._..____ 2QuestionsPresented__..... ...._._........... S8ta.tement oftheCase__ ..._____ ..___ _......._... 3How the FederalQueSti01ls WereRaised ..._........... 6TheQuestiollll AreSubstantial........................._....... 61. Responde.nt's refusal to sanctIfy appellants'marriagedeprives appellants 01 'libertyan d

propertyin violation ot the duepr0I\a.....



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Order Q u a s ~ i J i g the Writ ...... . : . . ~ . _ ......._ ..._.._ ..._. IIIAmended Order, Findings and Conclusions __ ,_ 14 '.Opinion ot the l{innesota Supreme Court, Hea.

Depln COlllity ..:.......,................_..:.:.._ ..........._ ....... J e. '.. :TA.BLE "OJ! Atmiolll'l'lESCases;

Batea v. City ot ;Little Rook, :861 U.S. 516 (1900) ....._.. Ltnoddiev. Connooiicut. 4()1 U.S:.311 (1971) ......11. 13,1'Cohen v. California, 403 U.S. : :i (1911) ........................ IfGriswold v. C O l 1 n e . ~ t i c l u t 8131 U.S. 419 (1966) ........11.12 13.. , . U.l8 19Jones v. Hallihan, ~ i 5 2 - i O (Ct. Apps. Ky. 1971) ......_ 10Loving v. Virgirtia; 388 U.S. 1 (1961) ................11.12, 13, 14.

. . 15, 16, 18, 19McLaughlin v. F i o ~ i d a , 879 U S 184 (Ui64) ............18, 16, 18Meyan. Nebraalm,.262 U.S. 535 '(.1923) .............."".11,12.18Mindel v. United, States I;livil'&rvice CommiSSion,81211'. Su1>P. 48.5. (N.I): Cal. 19"70) ....._ ............___ 18Reed v. Reed, 92. S. -at. 251,30 D. e'd.2d 225 (1971) - ..13,16,

. I. 17,18Royster Guano v. v i ~ s : i n i a , ' 2 ~ U.S. 412 (1920) _ 17

I iShapiro v. T h o t n p ~ n ; a 9 . 4 U.s. 61S (1969) ._.........._..... 16Shelton v. Tucker, 3G{U.S. 4:79 1960) _......................... 14Skinner v. Oklahoma, lUG tr.S. {1942) ......_ ._ ..11, 12, 13Street v. New York. 3 9 ~ U.S" ~ 1 6 (19G9) .q..._....q........ 14. ' ,

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~ O O l 1 8 t i h d i o n a l r o ~ ~States Constitution

~ r 8 t Amendment _ ....__ ..........._ .........._ .................. 5.6Eighth Alnendm ent ....... ...................... ...... _................. 5,6Ninth Amendment ..._.........._ ..._.__ ............3, 5. 6, 18, 19Fourteentll Amendment ........._ ..3, 5 6,11, 13,17,18.19

Rule:Minn. R. Civ. P. 52.01 ......... __....... _ ........................... ..... . 5Federal Stewte.:28 U.S.C. ~ 1 2 5 1 2 ) ..........................-. _................. _ ........... 2Beate SeaMe:Minnesota StatutesChapter 517 ..............................._ ..........................2.4,6,13Other Auflwrities:Abrs.harnsen, Cl'illle alld the Human Mind 117 (1944) 9Cburcllill, HOlllOseXUal BelJavior Among Males 19(1969) .._ ........................._ ...._._..........._ ...............-.......Final Report of the Task Foree on HomosexuuJ.ity of

the National Institute of Mental Health, October 10,1969 ....................__._....:..._................._........_...............Finger, / , ~ Beliefs awl Practices A,,,.ong Mate Golle-gcS w . ~ t s , 4 2 J. ABNORIIUL UD SOCIAl . PSl'Ol:L 51(1947) ....... _._ ..__ .... _ ................... _...............................

Freud,107 Am. J. of Psychiatry 186 (1951) (reprinted)

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Hart, Law, LiOOrty and Morality 50 (1963) .................. _ 9.James, The Varieties of Ueligious E X I ~ e r i e J l e e lecturesXI, XII, XIII cl902) ... .....__...........:_ ........_..h 8_. ..K.ur8l!:Y, SEXUAL Bf;HAV!O!,!- IN' THE H t l ~ t . A l i M.u:.:m (1948) 7, . .Westermarek, 2 Origin and Development of the Moral

Idea 484 (1926) .............. _ ......._;....... __ ......__ ......_ 8

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OCTOBER TslI.M', 1912No ._ .

RlOHAm> JOHN BAu K, et at., AppellantsV -

GERALD R NELIlON, Appellee.ON ..u>l'EAL J'BOM THE BUP:a:EHE COURT MINNESOTA

,JURISDICTIONAL STATEMENTAppellants appeal from the judgment of the Supreme

Court of Minnesota, entere.a(,.)

:r



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2Jurisdiction

This suit originated througn an alternative writ of mall.damua to o o m ~ a ~ p e l l e e tu issue the.1I18niage license toappellants. The writ of Jllandamuli was quashed by theHennepin County District Court on January S 1971. 0.appeal, the judgmf:nt of the. Supreme Court of Minnesotaa.IfI:rming the action: of the D i B t r ~ e t Court was entere4 011October 15,1911. Notice of Appel;\l to the Supreme Courlof the United States' was 1Ded iu the Supreme Court orMinnesota on January..lO. 1912. The time in which to filtthis Jurisdictional. 'Statement was extended onJanuary 12,11)72, by order of J uitiee nlaokD!un..'The jurisdictioD of" (b!i' Sllprem e' Court to review tbilldeeision OD appeal is c O D f e ~ r e d by Title 28 u.s.a., Seo-tion 1257 (2).

" S t a t u ~ InvolvedAppellants have- never been advised by appellee which

statute precludes the iIISlianee of' the Jnarriage license tothem, and the Supreme coUrt of Minnesota cites only Chap.ter 1111, M : i n n e s o t a . J ~ t 8 . t t 1 t e B .in tts ,opinion. ACCOrdingly,the whole of Chapter 51'1. is reproduclld in App., infra pp.1a...9a. . :, . ,:'

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aQueetioDll Pre.ented

1. Whether a.ppellee's refusal to sanctify appellantsmarriage deprives a.ppellants of their liberty to marryand of their property without due process of law under the Fourteooth Amendmllllt.

2. Whether appellee's refusa.l, purlluant to Minnesotamarriage sta.tutes, to sanctify appellants' marriagebecause both are of the male sex violate. their rightsunder ilie equal protection clause of the FourteenthAmendmllllt.

S. Whether appellee's refusal to sanctify appellants'marriage deprives appellants of their right to pri-Va()y under the Ninth and Fourteenth Amendments.

Statmnent of the Calle'Appellants Balter and McConnell, two persons of the

male sex, applied for a marriage license on YAy 18, 1910(T. 9; A. 2, 4) at the office of the appellee Clerk of Distriet Court of Hennepin County" (T. 10).l T. refers to the trial trlmllCript. A. refers to the AppendiJ: to

appellants' brief before the Mumesotll. Supreme Court. Appe1laut MoCwmell is also petitioner befora this Court inMOOOllMU v. Ander80 1, petit. for em. filed, No. '1]978 in whichbe seeka J'flview of the decision of the United States Court of Appeatafor the Eighth Oll'lluit, allowing the Board of Begent1l of the Uni.versity of Minnesota to refuse bim elllployment lIB head of thecatalogue division of the St. Paul CamPWl Librar), on the groWldsthat "Ilis personal conduBt, l1li repreKt!lIted ill the public and Uni.versity newa lIIedia. is not coDsilltent with the interest of theUniversity." . .The efforts of appellants to get married evidently percipitatadthe Regents' deewon not to ewploy Mr. McConnell.

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4Upon advice of ':the office of the Hennepin County At-torney. appellee acceIlted IlPliiillants' application and the....upon requested a 'fonIlal:opinion 'Of ~ h e County Attol'llef(A. 7-8) to detemiine whether the marriage license should

be issued. In a letter dated May 22, 1970, appellee NelllOllnotified appellant Baker he w ~ s "unable to issue tho marriage license" ~ c a u 8 e "sufficient legal impediment 1ietthereto prohibiting the marriaS-e of two male persoa."(A. 1; T. 11). H'Owever, ~ e i t h e r : appellant haa ever heeDinformed that lie iii individually incompetent to mar!,),.and no specific r ~ i \ 8 o n bas ;ever been given for not iS9UiDIthe license. '.

, , ,MinnOS'Ota. Statutes; section 1. 117.08 states that on y thefollowing information :will, be elicited c'Oneerning a mar-riage license: nam.e, residence; date and place Of birth.race, terminati'On' Of pro'lious lllarriage, signature of ap.plieant and date ~ i g n e d . Altho'l1gh they , wer e asked oraUyat the time 'Of a p i ; l i ~ t i o n which ,was to be the bride Ddwhioh was to be the' groom (T. 1 ~ ; T. 18), the forma forapplication for a mairiage Jicense'did not inquire 8S to the . ' I'sex Of the applieants; l-Iowever, appellants readily coucedethat both are of the'male 89L

Subsequent to ,den:iil:1 of 'a l i ~ e n l e , appell ants consultedwith legal counsel. On December 10. 1970, a.ppellants applied to the Distnct Conn of ,Hennepin County for aDalternative writ 'Of m l U J d i u n l l ~ (A. 2), and such a writ 'WUtimely served u p ~ ~ p p e U e e . 'Appellee Nelson continuedto refuse to issue tM appellants oa ma.rriage license. Instead, he elected to appear in. C'Om.t, show cause why hihad not done as oomma.n


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,, 6How the Fe,deral Q U e . e t i O ] ~ 8 Were RaiSGd

AppelIants contended thllt if Minnesota Statutes, Chap.ter 517, were COlllitrutod so as to not allow two persona orthe same sex to lJUliiy, then the"Statutes were in violaliollof the It'irst, Eighth, Nintll, IUId Fourteenth Amendment.to the United States Constitution .in their Alternative Writof Mandamus (App. in/fa, pp. lOa-lla}, at tlte Ilsaringbefore the R e n n e p ~ n : . C o l \ I l t y : District Court on January 8,1911 (App. infra, 1 , 1'28.), ilnd to the Supreme Court orMilmesota (App. infra, po ~ 8 a ) . T h e s ~ constitutional clail1llwere expres.sly considered 1m9 rejected by both courtsbelow. :

The Q ~ ~ t i o n a Are, SUh8tlU tiai. . .The precise question' is ~ b e t l l ~ r t" 'o individuals, solelybecause they are of the SA\lle .lIex, 'Ulay be refUsed forma.legal sanctification o ~ ; ratilicatipu of their marital rela-tionship. ' , 'At mst, the qnellq'on and t l t ~ , p r o p ~ e d relationahip maywell appear b i Z / l , r r 6 - ' - e s ~ e c i l l l J y ,'to heterosexuala. :But\ . . . I

to _ the biae.xual nalne Pllt ~ I l McConnell doubtleea keptthe cleric from Jullkillg Any i ~ u l l l i r y about, the seXE of the llarti-.Shortly aftar the Iiceruie iIIlIl,li, Mr. doCol1lleJl', adoption {If Mr,llaket' Willi made puhllc .by"Judge Artbul"-ContrafY to Milll1eaotaIllIV. the County Attllraey for Earth County then diaeoveHdthat a lIIarrie.gelkense had isl;ued to t,Jle 81)(Iellunts, IIoIld on August81, he "declared the license void,oIl: ~ t \ u t o r ' y growuis," Neverthe-on September a, tlllI lIppclla.utli'. were married in a p r l v l ~(;eren\


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8Only then will t h ~ public perceive that homosexuals arenot freaks or uniortl,mate I l b b r & t i o n ~ , to be Hwept underthe carpet or to be l ' e ~ e r v e d for IlllXioUIl pJiantasies aboulone's identity or child rElarmg t o C l l D i ~ I U I l S .

A vast literature reveals'.' sevei 'a! ' IlypotheseN to expla.inthe deep prejudice aga"imst homosexuals. One authoritymaintained that hostility, to hqmoseximl conduct Wall orig.inlillyan "aspect of ';lcOnOmiCIl," in thn.t 'it reflocted the eco.nomic importance of lurge' fuililly grtlupings in pastoraland agriculturuJ. societies, E. Westc.rDJarck, 2 Origin andDevelopment of t h ~ . 140ral Idea 484 (1926). A secOlidtheory suggests that homosexuality wall originally forbid.den by the "early e b ~ e . w 6 part. of effor.ts to "surround,,the appetitive d r i v ~ s with prohibitions." W. C h u r e h i l ~Homosexual Behavior AlDOng MaillS 19 (1969). Under thi'theory, opposition to l l O i n O I : l ~ i J a l i t y ' ~ a s clolll'ly related toreligious imperatives, 'fh p a ~ t i c u i a r 'the need to establishmoral Buperiority o v ~ . ~ ;t'.agan s e c t ~ . [d. at 17; ses alllOW. James, The Va.rieties of Heligiolls Experience, lecturesXl, XII, XIII (1902).' ":" ,,",, ' Whatever the apPl'opriate x p l a n . a . t i o n of its origins, psy.chiatrists and sociologists'are ~ o r e nearly agreed on thereasons for the p e r i i l : \ t e . n : c ~ of the postility. I t is ODe of

" . those "ludicrous and hamifultJ prohibitions by which virtu., . ,ally alI sexual matter!! are stil l . reckoned "socially taboo,illegal, pathological, or highly controversiaL" W. O h n r c : h i l ~supra at 26. I t continul 1l; a8 it a i : y ' ~ a v e ~ q;Uite with.out regard to the aetual uhara9,te#stics of homosexuality.I t is nourished, all are the variQUS oULer sexual taboos, byan amalgam of fear a iLd 4 . l l ~ r a n c e . : ld. at 20..35. It Ur supported by a popular c p n c e J ) t i ~ 1 J of the causes and characteristics of homosexuality that'is no 'more deserving of ourreliance than the J,i1rnperor J u s t i ~ i a n ' s belief that homo-

9sexuality causes earthquakes. H. Hart, Law, Liberty andMorality 50 (196B).

There is now responsible evidence that the public attitude toward the homosexual community is altering. Thus,the ~ ' i n a l Report of the 'l'ask Force on Homosexuality ofthe National Institute of Mental Health, October 10, 1969,states (pp. 18-19):

"Although many people continue to regard homosexual aotivlties with l'epugnance, there is evidencethat public attitudes Ilrc changing. Discreot homosexuality, together WiUL nJany other aspects of human sexua.lbehavior, is b4Jing. recognized more and more as theprivate business of the individual rather than a sub.jeClt for public regulation through statute. Many homo isexuals are good citizens, holding regular jobs and !leading productive lives." I

To a certain extent the new attitudes mirror increasing !scientific recognition that homosexuals are "normal," andthat acoordingly to penalize individuals for engaging insuch conduct is improper. For example, in D. Abrahamsen,Crime and the Human Mind 117 (1944), it is stated:

All people have originally lSisexual tendencies whichare more or less developed aDd which in the course IIof time normally deviate either in the direction of maleor female. This may indicate that a trace of homo. Isexuality, no matter how weak it may be, exists inevery human being." Iigmund Freud summed up the present overwhelming iattitude of the scientific community when he wrote as fol ilows in 1935: I

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I .~

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:, .

~ l i

HIlI . '

10"IIomoseS:llality ill assnredly no' advantage but it i.nothing to be u e h ~ e d ot', no ~ f u e , no (tegrlldation. itcannot be classified as an ilInclIlJi we consider it to be>a variation of the sexual t ~ t n c t i o n produced by a eeltain arrest of sexual ,development. MWlY highly J't.spectable i n d i v i d l ~ a 1 6 of arte ,ent and Dlodern time JlILvebeen hOlllosexualS, ,silvera} 'of tlle greatest lnen amDIIA;them (Plato, M i c h e l a , p ~ l o L a o n a r d o cia Vinci, e1.(:.,.t is a great injnstice to pers Cute homosexuality 81 crime and cruelty tuo. 'lteprinted in 101 .Am. J. o

Psychiatry 786..81' ( ' 1 ~ 1 ) .In the face of seientifiil knqwledge and changing public.. , li:tti.tudes it ill plainly. all 'Freud said, a great injustice"to peraooute homosexUfl'ls. . _. 'Ttlis injustice is COIJlPuunQ.'ed, we suggest, by the flltt

that there is no jUlitificatiOD in for the discriminatioaagailUlt homosexuals.' -;Beeause.orabilling prejudice, appel.lants are being delll'ived of', a h a s i ~ right-the tight tomarry. As a. result or this d ~ p r i J a t i o u . they have beendenied numerous benefits .awarded by .law to oth&rB I imiJarly situated-for x a m p l ~ childle{ s heterosex\'w couple.

Since this action ''Ilinin filed, others have been insti.tuted in other stat4 a. 'I'Jlis C9uf t 'S I decision, therefore,would affect the mauiage ' l a ~ I i ' of virtually every Statein the Union. ..

, , . \ \.

,',/

, See, e.g., Jon6 v E l ~ O l c J f l ; W . 1 5 a . 7 o . (Ct. Apps. Ky. 1971)... I,.

11J.

Respondent'a refwlal to ea.a.ctffy appeJJaa18' marria,8deprives appeUaDlti of liberty and property i l l violationof the due prOCNa aDd protec:tloa claUlleti.

The right to marry is itself a fundamental interest, fullyprotected by the due process and equal protection clausesof the Fourteenth Amendment. See oddie v. Oomr.ecticut,401 U.S. 371 (1971); Lovi flg v. VirO-i ,ia, 388 U.S. 1 (1967) ;Griswold v. OcmnBctiC'Ut, 381 U.S. 479 (1960); 8'ki'n'ller v.Ohkwltrw., S16 U.s. 535 (1942); Meyer v. Nebraska, 202U.S. 535 (1923). In addition, significant prnperty interes ts,also protected by the due process cla.use, flow from. thelegally ratified marital reJationship_ In his testimony atthe trial, the appellant Baker enumerated six sucb in.terestl which he cannot enjoy because of the State's re.funl to recognize his marriage to the appellant MeCOWlell:

L ' 'he ability to inherit from one another by intestatesuccession.2. The availability of legal redress for tlle wrongful

death of a partner to a marriage.. a. The ability to sue under hearlbalm statutes wllerein eft'ect.

4. Legal (and cOllsequently cOmmunity) recognition fortheir relationship. '

5. Property beIlefits SOC}1 iUl'the a.bility to own p rollertyby tenancy-by-tbe-entirety in states where permitted.6. Tax benefits under both Minnesota and feeeral stat

utes. (AmOl1g others, theB8 include death tax benefits

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12and income t 8 X . b e n 9 1 i t 8 - e v ~ under the revieed Fet eral Income T ~ C o d e . .

There are irul.lnneraule other legal advantages that CAlIbe gained only in the . u l ~ t a l relatiol1$hip. Only a few orthese will be listed ,fer iIlust.I:ll.tive Jurposes. Some lltat'climinallaws prollibit aeXllll.l allts between unmarried per.SOliS. YIUlY governu.ent beneJi.ts aro available only tospouses and to surviVing spouses. .This is true, for examIlle, of many e t a r ~ l b e l 1 e t i ' t s . Rights to public bouamgfrequently turn on 8, inariW relationship. FInally, wnellthere is a formal lnl/-r.Ual r e ~ a t i o n ~ h i p , on, spouse CSJInot

.. give or be forced to g i v ~ evidence againat the other.The individnal's iritel:esta,' pereol\a't and property, in ..marriage, are deemed fundal,ellta(: e.g., Boddie v.Oom:.ecticut, .supra; L D ~ i n g ' V. Jlirginia, 8fllJra,j Griswoldv. Oonnecticut, S ' l A 1 J r ( J I : 8 ~ f I r J : n e r v. Oklakonuz, 8Up1'a; Meyer

v. N ~ b r Q k a , .supra:' ': -'lIUS' illirria&,e comprilles a blUldleof r i g h ~ and interests, ) l ' i C ~ , ml -y.'not be interfered with,under the guise of protecting the public interest, by government action which'hi a r ~ i t r e : ~ y or' invidious or wftiJol1tat least reasonable.; f l l ~ i i o n to 80m\, important and legiti.:m.a.te state purpose. Fl.&: Meyer v. ;Nebrll8ka, 8UprQ.. Infact because marriagli is' l- fundamental burna:n right, thestate must demonstrate a subord nllting interest wllich Iscomp&lling, before it. may 'interfere..with or prohibit marriage. Cf. ates v. Cit ll of Wlle,;R4t:k, 361 U.s. 616 (1960).

In a sense, the ana,I-ysi.s presented here involves' a.mWDgof both dne p r o c e s S ' : ~ ~ ~ ' ptotection doctrines. Aftthey an applied to ilie w? hI g o v ~ l 1 I m e n t disability atissue in this case, b o ~ ~ v ~ r , they tend to mel'S' . Refusalto sanctify a marriage solely because both parties to the

' .

18relationship are of thll same sex is precisely the kind otarbitrary and invidiously discriminatory conduct that isprohibited by the F.ourteenth .A..mendaumt equal protectioDand due proceliB clausell. Unless the refusal to sanetifycan be shown to furtber Ilome lcgitbnate government interest, important personal and property rights of Ole perBons who wish to many are arbitrarily denied withoutdue process of law, and tlte class of persons W}IO wish toengage in single sex marriages are being subject to invidious discriminlltion. With regard to the due processcomponent, see Boddie v. Co-nnecticut, St P7 O,j Grnwold v.OOMleCtiaut, 8'Uprg, (all the tnajority opinions); 1I1eyer vNebraska} supra. With regard to tile Bqllsll>rotectioD COlll-ponent of this argument, see Loving v. Virgi.1'ia, S1I pra;McLaughU , v. Ftorido., 379 U.S. 184 (HJ64) j Bkitlner v.0 141107114, .supra; c. Reed v. Reed, 92 S. Ct. 251, 80L. ed.2d 225 (1971).

Applying due process notioia, in this Ctlse, the sUi.te hasnot shown any reason, much Jess a compelling one, forrefusing to sanctify the marital relationship. Its action,therefore, arbitrarily invades a fundamental right.Separately, each appellant is eompetent to marl')' underthe qualifications sllCcilied, in Minnesota Statutes Sections511.08, subd. 3, 517.02-517.03. CompaN Loving v. Virginia,.supra. 'Why, then, do they beeome incompetent w}len theyseek to marry eacb otherf

The problem, according to t he M'i:nnesota. Supnme Court,appears to be definitional ox: historical. The institution ofmarriage "a.s a. union of a man and a woman, uniquelyinvolving the procreation and rearing of children withina family, is as old as the Book of Genesis" (App., infra,pp.208-21a). 011 its face, however, Minnesota law neither

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14states nor implies this deihlition. F\\rthermol'e, theanUq.uity of a restriction certaUlJy ~ z a 8 110 bearing on its consti.tutionality,and does not, with out Inytlring additional,dt.m.onstrate that the atate'li irlterest iii tin6ltllibering tliematH.lrelationship is 8ubordi.n LJuig nnd compelling. Connecticut's:restriction on birth controhfevicetl had been 011 ite statutebooks for nearly a centuty, before tJlil Court struck it downon the ground that it lUiconstitlltionally invlI.dml tile lId.vacy of the Jtlantall'eltl.tionsltip. Gt'is'WolcL v. COn1leCliCIIIsUP . "Surely the M.j.nnesota' SUlll'lllne C O I ~ r t ' cannot be suggesting that single sex m a r ~ i ~ ~ 1 lI.1ay. be'hlJiuied becaUJIe theyare c o n s i d e r e ~ by a l a r g ~ , l i e g l l l f r i t or os'r population to besocially reprehensible. 81Jcll Ii governmental motive wouldbe neither substl .n..tial .nor, 1iubordinatin g nor legitimatl>.See, e.g., lAving 'v; Viiginw :supra; 001,e", v. OolilorniD,403 U.S. 15 (1971v; 8trCt .t .NewlYork, 894 U.s. 576

. I, . , '1 9 6 9 ) . , .'Even assuming tllat g O v e ~ l i l i l e n L c O ' l l l d eonstitutionallymake marriageability t ~ r i l on the l 1 1 a r r \ ~ e partners' w nI, . ingqelJll and a.bility to p r o e r e a ~ a,nd 'to raise children,:Minallsota's absoluta bap QP >lingle.: sell: marriages would

still be 1lll.eonstitutional. " [ E ] . ~ e i l tlllYUgh the governmentalpurpose be legitimate nd 8l1bstantial{ ,(hat purpose cannotbe pllrslled by means tllat hroadly':sti'fle fundamental porsonallibert ies whenthe f.pd, can be m?r8 narrowly achieved.The breadth of legislative- nh;:iclgment"must be viewed inthe ligbt of less drastic meaJI8 ffJr' ;'chieving the sa.me basicpurpose." SMUOGv T 1 l d ~ e r : , 364 tr:S, 479, 488 (1960).There is nothing in tla np,tm's of I i l \ l ~ i t \ 8iIX marriagaa thatprecludes procreation an lI cbild r e ~ ~ l g . Adoption is quite

15clearly a socially a c e e p t a b l ~ form of procreation. It alreadyrenders procreative many marriages between perllons of

, opposite sexes in which the partnel'8 are physically or emotionally Ullable to conceive their own c h l l t l r e ~ . Of late,even single persons have become eligible to be adoptiveparents.

Appellants subllut thllrefore, that the appellee cannotdescribe a legitimate government lnterest which is so compelling that no less restrictive means can be fl:>und to setlUrethat interest, if there is oue, than to proscribe single sexmlU'liages. And, even if the test to be applied to detenninewhether the Minnesota proscription offends due processinvolves only qnestiolls of wluttller Minnesota has actedarbitrarily, capriciouslyor unreasonably, appellants submitthat the appeUee has failed under that test too. Minne-sota's proscription simply has not been shown to be rationally re1ated to any governnlental interest.

The touchstone of the equal protection doctrine as itbellrII on this ease is found in Loving v. Virginia, 388U.S. 1 (1967). l 1Jle iSllUe befol'a the Court in that easewas whether Virginia's n t i - J I I ~ s c e g e n a t i o n statute, prohibiting marriages between 11ctSODs of the Cal1caaian race andany other race was unconstitutional. The Court struckdoWll. the statute saying:

There is patently no legitimAte overriding purposeI.:ndependent of illvidioUfl racial discrimination whichjusti1ies this classification. The fact that Virginia pro.hibits only interracial marriages involving wllite persons demonstrates that Ule racial clallSifications muststand on t l u ~ i r own justification as measures designedto maintain Wbite Supremacy. We Ilave eonsistently

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16: denied the constitutionality of measures which restrict

the rigJlts 01 c i ~ e J l s on ac.count of race. There C IIbe no doubt tltai' :s:esh'icillng the freedom to marrysolely because of J..Mial.cl l,saifications violates the celltn meaning of ~ e ~ u a l ~ r o t c c t i o n Clause. Lot'ill,v. Virginia, SSS .U:S 8t'1112. ..

The Minnesota Supl'eme Court ruled that the Lovittgdecision is inapplicable -to tile inst ant case' on the gronnd" _ .,that there is a clear. d i ~ t i n c t i o l l between a marital reHtriction bas ed merely upon rAce Ilnd one h;1lied \\11011 the funda.mental difference in sex ' (App:, inf; u, 1). 28a). t is tnlthat the inherently susi;ect test which thill Court appliedto classifications based UllOn tace., (ooe, e.g., Loving ,.Virginia, supra,; M o t a f u h l i ~ v. 'Flqrida, supra), has notyet been extended to e l l l , s s . i f i q a t i ~ n s based upon lIell: (seeIteea v. Reed, 92 S. Ot: 251., 30' L. ed.2d 225 (1971). How.ever, this Court bas 'ill(licated Ulat a fundamentalright-eUc}1 as U l a r r ~ l t g ~ i 8 denied .to a group hy someclassification, the dewal liltoulii be j114ged by the stand/l.fdthat places on g o v e r n i m n i ~ the. burden of delnoniltratinga legitimate subordinating i n t e t ~ s ~ that is compelling.Shapiro v. Thompllo.n 3lJ4' U.S. 618.. (1969). As we havealready indicated neiUler a. l e ~ t i l 1 u l t e nor a subordinatingreason for this e l a s s i ~ e a t j o n . halJ' been. or can be ascribed.Even if we assume. that the classmeation at illSue in thiseasc ill not to be judgea iIY ~ I l ~ more. stri ngent "constitu.tionally snspect" an4 1 . ' 8 u ~ q r d i n a t i n g interest" standards,the :Minnesota claflllifi.cation is infirm.:

The discrimination jn this caee is one of gender. Espe.eialJy significant in this r e g ~ d . . i s tilt' Court's recent decision in Reed v Reedi 92 S. Ct. 251, 80 L. ed.2d 225 (19'11),.

., ' ,

11which held that an IdaJ10 statute, which provided that asbetween panORa equaUy qualified to administer estatesmales must be vre1'el'red to females, is violative of tlleequal protection claUiSe of the Fourteenth Amendnillut.There the Court sa.id (30 L, ed.2d at 229):

In applying that ('laU5C, this Court lIas consistentlyreeognil1led that tile Fourteenth aIllllndment does notdeny to States the power to treat different elasses ofpersons in different ways. [Citations omitted.] TlleEqual Protection Cla.utle of tllat Amendment does,however, deny to States the power to legislate tllatdifferent treatment be accorded to persons placed bya etatute into different classes on the basis of criteria.wholly unrelated to Ule objective of that statute. Aelassmcatlon "must be reasonable, Uf)t arbitrary, audmust reat upon some ground of difference lllloVillg iii.fa.ir and substantiaL relation to tbe object of the legis.lation, so that all persona similarly circuIl:lstaneedlIhall be treated alike," Itollster Gl'ano Co v. Vi ginia,253 U.S. 412, 415 (1920).

Childless sa:me sp-x couples, tor example. are "similarlycircumstanced" to childleSll heterosexual couples. Thus,under the Reed and Royster cases, they must be treatedalike.

Even when judged by tide less stringent standard, theMinnesota CIIlBSifica.tioll ea.nnot PIlBS constitutional JIIuster.First, it is difticult to ascertain tlte objl'flt of the legislationcoustrued hy the M nnesota 'collrts. SecDnd, wbatever objeots are ascribed for the legislation do not bear any fairand substantial relationship to the gronnd upon which the

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"

18diff'eren(le is drawn. b ~ t ~ e e n same sex and llilrerent lexlIlarriasea........ -

IL .,Appellee's refulal ,.legitmiiue. appellants' mD'l'iIIpcOlUli tuta an UDW8ft 8Dled invasion of the pthaey hivioilltion of the Niulb 'su d Fourlee nlb 'Amendmeote.t"

, , ., M.arriage between two p e r S ~ is, jr persona affair, Oll&,,, whicll the state may d e ~ y or, ellc\llI1ber only when t h e ~is a compelling reason' to do, 'so. Mar'rlage and maritalprivacy are I l U b s t a n t i ~ . risllts protected by the Ninth

I ' Amel1illlleDt as wen ai",tlie, Fourteentti Amendment dueproee8ll cl.&use. By not allow,ing appellants the legitimacyof their marriages. the' st.,te' is d ~ Y . i n g tllem this buu:rigbt and unlawfully medUluig in tlleij: privacy.

To hold that a light 110 b ~ c ~ ~ d ~ n d m e n t l andso deep-rooted in 9 lt" ,lIociety 1;' tbe right of privacyin murlage maybe ,iof,inged liecause that right Isnot guaran.ted in so' many '\Vords'.by tlle first eigbtamendments to the C o ~ i t u L i o l l is to ignore the NinthAmendment and to. live it nO'e lect whatsoever.

Gri&wo/dv. O o n n e c t i o u ~ , 3 l U U.S. 410';4fll-492 (Ooldberg, J ..concurring); see also, MiniM ,v. U f ~ ; ' t e i l State:. Civil Serv,ice Oommi.ssion., 312 F:SI1PP. 48a (N.D. Cal. 1970). Ac.cordingly, MiDllesota's refullal,to legitimate the appellants'marriage Inerely b e c a U l ~ e of tile, seX of tile 1l.1>llucants ie..... ' ' \ ' , The fact that tile parti. tb the dfSh'lld lWlIe sex marriage .&r"enot bUmid from marril:l.BlI altfigethN" I, i ~ l ' e l o v a . n t to tile constitutionl1l i/Olue. Iilee Reed v. &wtL, IIll) ; f..olillU 'V. VwgtlliG supr/ ;

J G L a U U l r . l ; I ~ v. PklriM. SIIpr3.

I

j19 ia denial of the right to marry and to privacy reserved ito them of the Ninth and Fourleeoth Anum(\m.enbl, SeeGrl8wolrl v. O()MlectiC IIt, 81Ipra; Lovfng v. V i r ~ i M a , 388 i.s. 1 (1967); cr Boddie v. O


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IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CHRISTOPHER DANIEL McNOSKY,

and SVEN STRICKER,

Plaintiffs,

v.

TEXAS GOVERNOR RICK PERRY, et al

Defendants.

Case No. 1:13-CV-0631 SS

ORDER DENYING PLAINTIFFS AMENDED MOTION FOR TEMPORARY

RESTRAINING ORDER AND PRELIMINARY INJUNCTION

ON THIS DAY came to be heard Plaintiffs Amended Motion for Temporary Restraining

Order and Preliminary Injunction (Dkt. 24) and the Court after considering Plaintiffs evidence and motion, and any response, hereby denies said motion.

IT IS THEREFORE ORDERED THATPlaintiffs Amended Motion for Temporary

Restraining Order and Preliminary Injunction (Dkt. 24) is DENIED.

SIGNED this ___ day of ____________, 20__.

____________________________________

HONORABLE SAM SPARKS

UNITED STATES DISTRICT JUDGE


Documents

McNosky v Perry STATE DEFENDANTS’ RESPONSE TO PLAINTIFFS’ AMENDED MOTION 12-23-2013