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1:13-cv-00631 #24

1:13-cv-00631 #24

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Published by Equality Case Files
Plaintiffs' Amended Motion for Temporary Restraining Order and Preliminary Injunction
Plaintiffs' Amended Motion for Temporary Restraining Order and Preliminary Injunction

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Published by: Equality Case Files on Nov 25, 2013
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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF TEXASAUSTIN DIVISIONPLAINTIFFS’ AMENDED MOTION FOR TEMPORARYRESTRAINING ORDER AND PRELIMINARY INJUNCTION
Christopher Daniel McNosky
Colleyville, TX 76034&
Sven Stricker
Bedford, TX 76021
Plaintiffs,
 CASE NUMBER:
A-13-CV-0631
vs.
Texas Governor Rick Perry
Office of the Governor State Insurance Building1100 San JacintoAustin, TX 78701&
Texas Attorney General Greg Abbott
Office of the Attorney General300 W. 15
th
 StreetAustin, Texas 78701&
Tarrant County Clerk Mary Louise Garcia
Office of Public Records and Civil Courts1895 Courthouse100 W. WeatherfordFort Worth, TX 76196
Defendants,
Case 1:13-cv-00631-SS Document 24 Filed 11/23/13 Page 1 of 10
 
Pursuant to Fed. R. Civ. Pro. 65, plaintiffs hereby move for a temporaryrestraining order and preliminary injunction prohibiting the defendants from enforcing
 Article 1, Sec. 32 of the Texas Constitution,
and
Texas Family Code; Title 1; Subtitle A;Chapter 2; Subchapter A; Section 2.001 (b).
A proposed order is attached.Plaintiffs request that bond be set at $1.00.
I. STATEMENT OF FACTS
A. Chris and Sven are not allowed to legally marry in The State of Texas.
1. Plaintiffs Chris and Sven have been denied the right to obtain a valid marriage license in The State of Texas by the defendants.2. Texas law prohibits legal recognition of the marriage of Chris and Sven.
 Texas
 
 Family Code; Title Subtitle Chapter Subchapter Section 2.001 (b)
) states,
 “A
 
license may not be issued for the marriage of persons of the same sex.”
3. The Texas constitution also prohibits recognition of the marriage of Chris and Sven. 
 Article 1, Sec. 32 of the Texas Constitution
 states,
 “(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.”
B. Marriages of Opposite-sex Couples are Treated Differently.
4. 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 Chris and Sven.
Case 1:13-cv-00631-SS Document 24 Filed 11/23/13 Page 2 of 10
 
5.
 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, in fact, 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.6. 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 state benefits solely because they are of the same sex and live in Texas. They will also be denied state and employer related benefits. 
II. ARGUMENT
A. Standard for Granting Preliminary Relief.
7. The standard for evaluating a request for preliminary injunctive relief under Rule 65 is well established in this Circuit. Though, there is no “rigid and comprehensive test for determining the appropriateness of preliminary injunctive relief,”
 Tate v. Frey
, 735 F.2d 986, 990 (6
th
Cir. 1984
 )
 (citations omitted), the court should consider the following four factors:1. Whether the party seeking the injunction has shown a substantiallikelihood of success on the merits;2. Whether the party seeking the injunction will suffer irreparable harmabsent the injunction;3. Whether the injunction will cause others to suffer substantial harm;4. Whether the public interest would be served by the preliminary injunction.
 Memphis Planned Parenthood, Inc. v. Sunquist 
, 175 F.3d 456, 460 (6
th
Cir. 1999);
Southern Milk Sales, Inc. v. Martin
, 924 F.2d 98, 103 n.3 (6
th
Cir. 1991). See also Jane
Case 1:13-cv-00631-SS Document 24 Filed 11/23/13 Page 3 of 10

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