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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 FOR
TEMPORARY 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 REMEDY THAT 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.
Case 1:13-cv-00631-SS Document 39 Filed 12/23/13 Page 2 of 11
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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 generally David 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 DOUBT THAT 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
Case 1:13-cv-00631-SS Document 39 Filed 12/23/13 Page 3 of 11
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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. In Baker 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 in Baker and the claims Plaintiffs bring to this court. Those claims are therefore
foreclosed by Baker. 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, Windsor affirms 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
Case 1:13-cv-00631-SS Document 39 Filed 12/23/13 Page 4 of 11
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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
Case 1:13-cv-00631-SS Document 39 Filed 12/23/13 Page 5 of 11
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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 basis that 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 the
state should ensure that no court decision could undermine this fundamental
value.
Case 1:13-cv-00631-SS Document 39 Filed 12/23/13 Page 6 of 11
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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.
Case 1:13-cv-00631-SS Document 39 Filed 12/23/13 Page 7 of 11
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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


1
Plaintiffs 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 also Illinois 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 SOW
UNCERTAINTY 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, or
validates 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 or
in 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 judicially
revised, 6.206(c) would still prevent their marriage.
Case 1:13-cv-00631-SS Document 39 Filed 12/23/13 Page 9 of 11
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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.
Case 1:13-cv-00631-SS Document 39 Filed 12/23/13 Page 10 of 11
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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. MURPHY
Assistant Solicitor General
Texas Bar No. 24051097

WILLIAM T. DEANE
Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-2995
Fax: (512) 474-2697
michaelp.murphy@texasattorneygeneral.gov
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 23
rd
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 Courts
1895 Courthouse
100 W. Weatherford
Fort Worth, TX 76196
/s/ Michael P. Murphy
MICHAEL P. MURPHY
Case 1:13-cv-00631-SS Document 39 Filed 12/23/13 Page 11 of 11
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OC'.OBEl'. 'l.'ElW, 1!l72
No. ...".......
:R!CE4l!J) JOBN Bhl(J!.B, eC al.,
.A.ppeilMzts,
-V.-
GERALD R. NELSON,
AppeUCB.
05" Al'l1'JIAL DOM TilE SUl'lIBKK COURT 011'
,JtJ1USDlCTIONAL STATEMENT
R. WZTa:l!:I1IlEE
Minnetlota Uivil Libertietl Union
2SZ3 t Hennepin Avenue
Minneapolis, Minnesota IiM13
LY1UI S. CAl!TNllB
1625 Park A.venue
Minneapolis, Minnesota 554Q4;
A'tortltyS for Appellants

29 of
Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 1 of 13
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INDEX
P.tG&
JmusPIO'llOl'tAL SU1'lUtll:N'r
Opinions Below ........___........_..........__..........._.......... 1
JUrisdiction _______........___................_.__....... 2
Sta.tutes Involved ......_......__.._......_ .._..____ 2
QuestionsPresented __....._ _ _ ~ _ ...._._........... S
8ta.tementofthe Case __...____._..__._._......._... 3
HowtheFederalQueSti01lsWereRaised ..._........... 6
TheQuestiollllAreSubstantial ........................._....... 6
1. Responde.nt's refusal to sanctIfy appellants'
marriage deprives appellants 01 'liberty and
property in violation ot the due pr0<Jt8s and
equalprotectionclauses.............___..__._.......__ 11
u. Appellee's reusa.l to lilgitilllate appellants'
.lIULrriage wnstitutesanunwarrantedinvasion
of the priv80Y in vlol8.tion of tlte Ninth and
FourteenthAmendments_......................._........... 18
CWCLl1SIOllT .... _............ _...._ ....___.................................... 19
.A,nmTnIX
Statutes Involved
Chapter 517, Minnesota. statutes...................... 1&
.Alternative Writ of Mandamus ..._........................... lOa
1-0
'n>
~
I\)
a
.....
w
Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 2 of 13
ii
Order the Writ...... ......._..._.._ ..._. III
Amended Order, Findings and Conclusions __,_ 14& '.
Opinion ot the l{innesota Supreme Court, Hea.
Depln COlllity ..:.......,................_..:.:.._..........._....... J8e
. '.
.:TA.BLE"OJ!' Atmiolll'l'lES
Cases;
Bateav. Cityot ;LittleRook,:861 U.S. 516 (1900) ....._.. Lt
noddiev. Connooiicut. 4()1 U.S:.311 (1971) ......11. 13,1'
Cohen v. California, 403U.S. :&:i (1911) ........................ If
Griswoldv. 8131 U.S. 419 (1966) ........11.12, 13.
. , '. U.l8, 19
"
Jonesv.Hallihan, (Ct.Apps. Ky. 1971) ......_ 10
Lovingv.Virgirtia;388U.S. 1(1961) ................11.12,13,14.
.. . 15,16,18,19
McLaughlinv. 879 U.S. 184 (Ui64) ............18,16,18
Meyan.Nebraalm,.262 U.S. 535'(.1923) .............."".11,12.18
Mindel v. United, StatesI;livil'&rvice CommiSSion,
81211'. Su1>P. 48.5.(N.I):Cal. 19"70) ....._............___ 18
Reed v. Reed,92.S.-at.251,30D. e'd.2d225 (1971) -..13,16,
. ... I '. 17,18
RoysterGuano v. U.S.412 (1920) _" 17
I. i
Shapirov. U.s.61S (1969) ._.........._..... 16
Sheltonv. Tucker,3G{U.S.4:79 (1960) _......................... 14
Skinnerv.Oklahoma,lUGtr.S. {1942) ......_.._..11,12,13
Streetv. NewYork. U.S" (19G9) .q..._.....q........ 14-
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"PAGE

States Constitution
Amendment _....__..........._.........._.................. 5.6
Eighth Alnendment ..................................._................. 5,6
Ninth Amendment ..._.........._ ..._.__............3,5.6,18,19
Fourteentll Amendment ........._..3,5, 6,11,13,17,18.19
Rule:
Minn. R. Civ. P.52.01 .........- __......._ ................................... 5
Federal Stewte.:
28 U.S.C. ..........................-._................._........... 2
Beate SeaMe:
Minnesota Statutes
Chapter 517 ..............................._..........................2.4,6,13
Other Auflwrities:
Abrs.harnsen, Cl'illle alld the Human Mind 117 (1944) 9
Cburcllill, HOlllOseXUal BelJavior Among Males 19
(1969) .._.........................._....._._..........._...............-.......
FinalReport of the Task Foreeon HomosexuuJ.ity of
the NationalInstituteofMental Health,October10,
1969 ....................__._....:..._.................._........_...............
Finger, Beliefs awl Practices A,,,.ong Mate Golle-gc
J. ABNORIIUL UD SOCIAl". PSl'Ol:L 51
(1947) ......._._ ...__...._..................._...............................
Freud,107Am.J.ofPsychiatry186 (1951) (reprinted)
8
9
1
10
......
w
Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 3 of 13
iv
\. 1".lGI
Hart,Law,LiOOrtyandMorality50 (1963) .................._ 9.
James,TheVarietiesofUeligious lectures
XI,XII,XIII cl902) ........__...........:_........_...h 8 ....._...
. .
.K.ur8l!:Y, SEXUAL Bf;HAV!O!,!- IN' THE M.u:.:m (1948)
7
',' '. .
Westermarek, 2OriginandDevelopment ofthe Moral
Idea484 (1926) .............._......._;......._ ._ ......__......_ 8
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&upreme C!tDUrt nt.tf1e Uutte!) &tales
OCTOBER TslI.M', 1912
No._.........
RlOHAm> JOHN' BAuK, et at.,
Appellants,
-V.-
GERALD R. NELIlON,
Appellee.
ON ..u>l'EAL J'BOM THE BUP:a:EHE COURT MINNESOTA
,JURISDICTIONAL STATEMENT
Appellants appeal from the judgment of the Supreme
CourtofMinnesota, entere<l on Oetooor 15, 1911. and sub-
mitthisStatementtoshow thattheSupremeCourtofthe
UDited Stateshasjurhldictionofthoappealandthata sub-
stantialquestioD ispresented. .
OpiniOUli Below
The opinion of the Supreme Court of Minnesota is re
ported a.t 191 N.W.2d 18.1). The opinion of the District
Court for Hennepin County is unreported. Copies of the
opinionsaresetoutin theAppendix,mlt'a, pp.10a-17aand
1Sa23&.
.J:>.
a

(,.)
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Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 4 of 13
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Jurisdiction
Thissuitoriginatedthrougnanalternativewritof mall.
damua to ..tu issuethe.1I18niage license to
appellants. The writ of Jllandamuli was quashed by the
HennepinCounty District Court on JanuaryS. 1971. 0.
appeal, thejudgmf:ntofthe. Supreme CourtofMinnesota
a.IfI:rming theaction:ofthe Court was entere4 011
October15,1911. NoticeofAppel;\l to theSupremeCourl
of the United States'was1Ded iu the Supreme Court or
Minnesota on January..lO. 1912. The time in which to filt
this Jurisdictional.'StatementwasextendedonJanuary12,
11)72, by order of Juitiee nlaokD!un.
.'
The jurisdictioD of" (b!i'Sllpreme'Court to review tbill
deeision OD appeal is by Title 28 u.s.a., Seo-
tion1257(2). .....
" Involved
Appellants have- never been advised by appellee which
statute precludes theiIISlianee of''the Jnarriage license to
them,andtheSupremecoUrtofMinnesotacitesonlyChap.
ter 1111, .in tts,opinion. ACCOrdingly,
thewholeof Chapter51'1.isreproduclld inApp., infra, pp.
1a...9a. .':, . ,:'
:'. ;1
,.
I
..
J I
,", I
,", .,", 'I......'
..
a
QueetioDll Pre.ented
1. Whether a.ppellee's refusal to sanctify appellants'
marriagedeprivesa.ppellantsoftheirlibertytomarry
andoftheirpropertywithoutdue process oflawun
der the Fourteooth Amendmllllt.
2. Whether appellee's refusa.l, purlluant to Minnesota
marriage sta.tutes, to sanctify appellants' marriage
becausebothareofthemalesexviolate.their rights
under ilie equal protection clause ofthe Fourteenth
Amendmllllt.
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 Dis-
triet Courtof HennepinCounty" (T. 10).
l T. refers to the trial trlmllCript. A. refers to the AppendiJ: to
appellants'briefbefore theMumesotll. Supreme Court.
Appe1laut MoCwmell is also petitioner befora this Court in
MOOOllMU v. Ander80!1, petit. for em.filed, No. '1]978 in which
beseekaJ'flviewofthedecisionoftheUnitedStatesCourtof Appeata
for the Eighth Oll'lluit, allowing the Board of Begent1l of the Uni.
versity of Minnesota to refuse bim elllployment lIB head of the
cataloguedivision of theSt.PaulCamPWl Librar), on the groWlds
that"IlispersonalconduBt, l1li repreKt!lIted ill the public and Uni.
versity newa lIIedia. is notcoDsilltent with the interest of the
University." . .
The efforts of appellants to get married evidently percipitatad
the Regents' deewon not to ewployMr. McConnell.
&'
C/)
CD
Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 5 of 13
\'
4
Upon advice of ':the office of the Hennepin County At-
torney.appelleeacceIltedIlPliiillants'applicationandthe....
upon requested a'fonIlal:opinion 'Of County Attol'llef
(A.7-8) todetemiine whether themarriagelicense should
be issued. Inaletterdated May 22, 1970, appelleeNelllOll
notified appellantBaker he "unable to issuetho mar
riage license" "sufficient legal impediment 1iet
thereto prohibiting the marriaS-e of two male persoa."
(A. 1;T. 11). H'Owever, appellant haa ever heeD
informed that lie iii individually incompetent to mar!,),.
andno specific bas';ever been given for notiS9UiDI
thelicense. '.
,', ,
MinnOS'Ota. Statutes;section 1.'117.08 states that only the
following 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 ofap.
plieantanddate Altho'l1gh they,were asked oraUy
atthe time 'Of which,was to be thebride &Dd
whioh was to be the'groom (T. T. 18), the forma for
applicationforamairiageJicense'didnotinquire8S tothe
I . '!I'
sex'Of theapplieants; l-Iowever,appellantsreadilycoucede
thatbothareofthe'male89L
Subsequentto ,den:iil:1'of 'a appellantsconsulted
with legalcounsel. On December 10. 1970, a.ppellants ap.
plied to the Distnct Conn of,Hennepin County for aD
alternativewrit'Of (A. 2),and sucha writ'WU
timely served 'Appellee Nelson continued
to refuse to issue tM appellantsloa ma.rriage license. In
stead, he elected to appear in. C'Om.t, show cause why hi
had not done as oomma.n<led, '.and make his return to the
writ (A.4). ,,'.' :' '.
:;
I", .1
",
..
"
....
5
The matter was tried on January 8, 1971, in District
Court, City of Minneapolis, Judge Bergin prtlsiding
(T.l). Appellants BaJror andMcConneU testified on their
own behalf (T.9;1'.15) asthesolewitnessl:llil. Afteroloil-
ing arguments, he quashed the writ of and
ordered the Clerk of District Court "not to issue a mar-
mgelicense to the individuals involved" (T. 19). An or
der was signed to thQt effect the same day (App. infra,
p. 12&).
Subsequent to the trial, counlilel for appellants moved
the court to fimi the facts IIpecially and statel:leparate1y
its conclusions oflaw pursua.nt to Minn. R. Civ. P. 52.01.
Judge Bergin then madecertain findings of fact and con
clusions of law (App. itn./ra, p. 14&) in an aJUllnded or-
derdatedJanuary29, 1971. Suchfindings andconclusions
were incorporatedintoSlId madepart'Of the order signed
January8, 1911. The Courtfound that the refusal ofap-
pellee toissue themarriageliceasewas nota violation of
M.S. Chapter 517, SlId tllat such refusal was not a viola-
tion of theFirst, Eighth, Ninth or ll'uurteenth Amend-
ments to the U. S. Constitution,
A timely appeal was made to the Supreme Court of
Minnesota. Inan Ol)inion flIed'October 15, 1911, the Su-
preme Courtof Minnesota. affirmed theaction of thelower
court.-
_In early August, 1971, .Tudge Lindsay Arthur of HOlUlepin
CountyJuvenile Oonrtissuedan01:4e1: grantiDg the legal adoption
of Mr. Baker hy Mr. MeConnell. The adoption permitted Mr.
Baker to (!III!.nge Ills name from Riehard Jo1u1 Bilker to Pat Lynn
McConnell, On A.ugust 16, Mr. Mlehlilll Itle(Jonnell allllle applied
for a marriagelicellse in Mankaw, Blue CO\Ulty. Minnesota
fa!'himselfandMr.Uaker,wllo UKed thenaruel'atLynll McConnell.
Under IIlinnel!otli. law, only Olae party need apply for a marriage
license, Since themarriage applielltioll does lIot in'luire lIS
!....
Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 6 of 13
,,
6
How the Fe,deral Were RaiSGd
AppelIants contended thllt if Minnesota Statutes, Chap.
ter 517, were COlllitrutod so as to not allow two persona or
the same sex to lJUliiy, then the"Statutes were in violalioll
of the It'irst, Eighth, Nintll, IUId Fourteenth Amendment.
to the United States Constitution .in their Alternative Writ
of Mandamus (App. in/fa,' pp. lOa-lla}, at tlte Ilsaring
before the District Court on January 8,
1911 (App. infra, '1', 1'28.), ilnd to the Supreme Court or
Milmesota (App. infra, po. constitutional clail1ll
were expres.sly considered 1m9 rejected by both courts
below. :,
The Are, SUh8tlU!tiai
'. . .
The precise question' is t"!'o individuals, solely
because they are of the SA\lle .lIex, 'Ulay be refUsed forma.!
legal sanctification ratilicatipu 'of their marital rela-
tionship. ' , '
At mst, the qnellq'on and relationahip may
well appear ,'to heterosexuala. :But
\ . .'. I
to _, the biae.xual nalne Pllt McConnell doubtleea kept
the cleric from Jullkillg Any 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 Milll1eaota
IllIV. 'the County Attllraey for Earth County then diaeoveHd
that a lIIarrie.ge lkense had isl;ued to ,t,Jle 81)(Iellunts, IIoIld on August
81, he "declared the license void,oIl: growuis," Neverthe-
on September a, tlllI lIppclla.utli'. were married in a
(;eren\<)UY In South Minneapolis. Aoo'!1t a week later the lieenae
WIlS to the Blue Earth CooritY.Clel'k of Dilltrict Oourt. It ia
not known wiIetber lie lIIed it, luit, ullder Ule l\1ilUlesota statllte
Us not required. ;t"urtllfll",' filiuS do.' not ailed Vllliditr.
' ..
..' ....
""
'1'
aeither the question nor the proposed rela.tionship is bi.
lIIItte. Indeed, that first impulse provides us with some
:' sneastll'6 of the continuing Impact on our society of preju-
dice against non-heterosexuals . .And, 8JI iIlwnillated within
the oontext of thiB case, this prejudice has severe eonse
The relationships contemplated is neither grotellque nor
\IIlIlommon. In faet, it has been established that homo-
aexuality is widellpread in our society (as well as all other
societies). Reliable studies have indicated'that a signif-
icant percentage of the tol:al. auult populatil1u ot the United
States have engaged in overt homoseJtuai practices. Nu
.bl,&rOus single sex maritall'elatioDshlps exhit de facto. See,
e.g., A. KIliSli:Y, SZXUAL BEHAVIOfl UI' THE Bl71UN MALl!I
(1948); FiDgor, Bel1l Belie/a and pf'a.ctices A.mong MqJe
College SWiJe'1lJs, 42 J. ABNO.llJl{AL AN'D SOClloL PsYOH. 57
(1947). The refusal to sanetion lIuch relationships is a.
denial of reality. Further, this refusal denies to mllDy
people important property and personal interests.
This Jurisdietionai Statement undertakes to outline the
rmbstantial reasons why persons of tIle same sex would
want to be married in the sigllt Ot the law. Substantial
property rigltta, and other Interests, frequently turn on
legal retJognition of the marital relationship. Moreover,
both the personal and public symbolic importance of legal
ratification of !lame selt marriages cannot be underesti-
mated. On the personal side, how better may two people
pledge love and devotion to Dlle another than by marriage.
On the public side, preju(liee against homosexuals, which
tends to bp. phobie, is unlikely to be cured until the public
a.eknowledges that hOln03exna!s, like all people, are en
titled to the full protection and recognition of the law
Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 7 of 13
8
Only then will public perceive that homosexuals are
not freaks or uniortl,mate to be Hwept under
the carpetor to be for IlllXioUIl pJiantasies aboul
one'sidentity orchildrElarmg
..
A vast literature reveals'.'sevei'a!'IlypotheseN to expla.in
the deep prejudice aga"imst homosexuals. One authority
maintained thathostility, tohqmoseximl conductWall orig.
inlillyan"aspectof';lcOnOmiCIl," in thn.t'itreflocted the eco.
nomic importance of lurge'fuililly grtlupings in pastoral
and agriculturuJ. societies, E. Westc.rDJarck, 2Origin and
Development of 140ral Idea 484 (1926). A secOlid
theorysuggests thathomosexuality wall originally forbid.
denby the"early part.ofeffor.ts to "surround
,,the appetitive with prohibitions." W.
HomosexualBehaviorAlDOngMaillS19 (1969). Underthi'
theory, opposition to clolll'ly related to
religious imperatives,'fh 'the need to establish
moral Buperiority ;t'.agan [d., at 17; ses alllO
W. James, TheVa.rieties of Heligiolls Experience, lectures
Xl,XII, XIII (1902).' ":" ,,!
",,!'
WhatevertheapPl'opriate ofitsorigins,psy.
chiatrists and sociologists'are nearly agreed on the
reasons for the of the postility. Itis ODe of
".
those"ludicrousandhamiful
tJ
prohibitionsbywhichvirtu.
, . ,
ally alI sexual matter!! are still. .reckoned "socially taboo,
illegal,pathological,orhighlycontroversiaL" W.
supra, at26. It continul!1l; a8it q;Uite with.
out regard to the aetual uhara9,te#stics of homosexuality.
Itisnourished, all are thevariQUS oULer sexual taboos, by
anamalgamoffeara:iLd- ,ld., at20..35. ItUr sup-
ported by a popular of the causes and charac-
teristicsofhomosexuality that'isno'more deservingof our
reliance than the J,i1rnperor belief that homo-
9
sexuality causes earthquakes. H. Hart, Law, Liberty and
Morality 50 (196B).
There is now responsible evidence that the public at-
titudetowardthehomosexualcommunityisaltering. Thus,
the Report of the 'l'ask Force on Homosexuality of
the National Institute of Mental Health, October 10, 1969,
states (pp. 18-19):
"Although many people continue to regard homo-
sexual aotivlties with l'epugnance, there is evidence
thatpublicattitudesIlrc changing. Discreothomosexu-
ality,togetherWiUL nJanyotheraspectsofhumansexua.l
behavior, is b4Jing.recognized more and more as the
private business of the individual rather than a sub.
jeCltforpublicregulationthroughstatute. Manyhomo-
i
sexuals are good citizens, holding regular jobs and
!
leadingproductive lives." I
To a certainextentthe new attitudes mirror increasing
!
scientific recognition that homosexuals are "normal," and
that acoordingly to penalize individuals for engaging in
suchconductisimproper. Forexample,inD. Abrahamsen,
Crime and the Human Mind 117 (1944), it is stated:
"AllpeoplehaveoriginallylSisexualtendencieswhich
are more or less developed aDd which in the course I
I
oftimenormallydeviateeitherinthedirectionofmale
or female. This may indicate that a trace of homo.
I
sexuality, no matter how weak it may be, exists in
everyhumanbeing."
I
Sigmund Freud summed up the present overwhelming
i
attitude of the scientificcommunity when he wrote as fol- i
lowsin1935:
I
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Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 8 of 13
:, .







HIlI '. '
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"IIomoseS:llality ill assnredly no' advantage but it i.
nothing to be ot', no no (tegrlldation. it
cannot be classified as an ilInclIlJ i we consider it to be>
a variation of the sexual produced by a eel-
tain arrest of sexual ,development. MWlY highly J't.
spectable of arte!,ent and Dlodern time!! JlILve
been hOlllosexualS, ,silvera} 'of tlle greatest lnen amDIIA;'
them (Plato, cia Vinci, e1.(:.,.
It is a great injnstice to pers!!Cute homosexuality 81
crime and cruelty tuo." 'lteprinted in 101 .Am. J. oC
Psychiatry 786..81'
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 discriminatioa
agailUlt homosexuals.' -;Beeause. orabilling prejudice, appel.
lants are being delll'ived of', a right-the tight to
marry. As a. result or. this they have been
denied numerous benefits .awarded by .law to oth&rB I!imi-
Jarly situated-for childle{!s heterosex\'w couple.
Since this action ''Ilinin filed, others have been insti.
tuted in other stat4!a. 'I'Jlis C9uf t 'SI decision, therefore,
would affect the mauiage of virtually every State
in the Union. '''..
,,'. \, \.
!,'
,
'/
,
See, e.g., Jon611 v (Ct. Apps. Ky. 1971).
.. 'I,.
11
J.
Respondent'a refwlal to ea.a.ctffy appeJJaa18' marria,8
deprives appeUaDlti of liberty and property ill violation
of the due prOCNa aDd protec:tloa claUlleti.
The right to marry is itself a fundamental interest, fully
protected by the due process and equal protection clauses
of the Fourteenth Amendment. See Boddie 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, 202
U.S. 535 (1923). In addition, significant prnperty interests,
also protected by the due process cla.use, flow from. the
legally ratified marital reJationship_ In his testimony at
the 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 intestate
succession.
2. The availability of legal redress for tlle wrongful
death of a partner to a marriage.
. a. The ability to sue under hearlbalm statutes wllere
in eft'ect.
4. Legal (and cOllsequently cOmmunity) recognition for
their relationship. '
5. Property beIlefits SOC}1 iUl'the a.bility to own p rollerty
by 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
I
I
-,
I
i
I
i
<
i
i
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I
)
I
Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 9 of 13
12
and income under the revieed Fet!-
eral Income .
There are irul.lnneraule other legal advantages that CAlI
be gained only inthe relatiol1$hip. Only a few or
these 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 to
spouses and to surviVing spouses. .This is true, for ex-
amIlle, of many Rights to public bouamg
frequently turn on "8, inariW relationship. FInally, wnell
there is a formal lnl/-r.Ual on,! spouse CSJInot
.. give or be forced to, 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; V. Jlirginia, 8fllJra,j Griswold
v. Oonnecticut, v. Oklakonuz, 8Up1'a; Meyer
v. .supra:' ':!-'lIUS' !illirria&,e comprilles a blUldle
of and interests, ml!-y.'not be interfered with,
under the guise of protecting the public interest, by gov-
ernment action which' hi or' invidious or wftiJol1t
at least IIreasonable.; to 80m\,! important and legiti.
:m.a.te state purpose. Fl.&: Meyer v. ;Nebrll8ka, 8UprQ.. In
fact, because marriagli is'!l- fundamental burna:n right, the
state must demonstrate a subord!nllting interest wllich Is
comp&lling, before it. may 'interfere.. with or prohibit mar-
riage. Cf. Bates v. Cit'll of Wlle,;R4t:k, 361 U.s. 616 (1960).
In a sense, the ana,I-ysi.s presented here involves' a.mWDg
of both dne ptotection doctrines. Aft
they an applied to ilie w? hI disability at
issue in this case, they tend to mel'S'!. Refusal
to sanctify a marriage solely because both parties to the
'11 .'
18
relationship are of thll same sex is precisely the kind ot
arbitrary and invidiously discriminatory conduct that is
prohibited by the F.ourteenth .A..mendaumt equal protectioD
and due proceliB clausell. Unless the refusal to sanetify
can be shown to furtber Ilome lcgitbnate government in-
terest, important personal and property rights of Ole per-
Bons who wish to many are arbitrarily denied without
due process of law, and tlte class of persons W}IO wish to
engage in single sex marriages are being subject to in-
vidious discriminlltion. With regard to the due process
component, see Boddie v. Co-nnecticut, St'P7'O,j Grnwold v.
OOMleCtiaut, 8'Uprg, (all the tnajority opinions); 1I1eyer v
Nebraska} 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, 80
L.ed.2d 225 (1971).
Applying due process notioia, in this Ctlse, the sUi.te has
not shown any reason, much Jess a compelling one, for
refusing to sanctify the marital relationship. Its action,
therefore, arbitrarily invades a fundamental right.
Separately, each appellant is eompetent to marl')' under
the qualifications sllCcilied, in Minnesota Statutes Sections
511.08, subd. 3, 517.02-517.03. CompaN Loving v. Virginia,
.supra. 'Why, then, do they beeome incompetent w}len they
seek to marry eacb otherf
The problem, according to the M'i:nnesota. Supnme Court,
appears to be definitional ox: historical. The institution of
marriage "a.s a. union of a man and a woman, uniquely
involving the procreation and rearing of children within
a family, is as old as the Book of Genesis" (App., infra,
pp.208-21a). 011 its face, however, Minnesota law neither
i
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&S
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o
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I.....
"w
Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 10 of 13
14
statesnorimplies this deihlition. F\\rthermol'e, the anUq.
uityof a restrictioncertaUlJy 110 bearingon itsconsti.
tutionality,anddoes not,withoutInytlringadditional,dt.m.
onstratethattheatate'liirlterestiii tin6ltlliberingtliematH.l
relationshipis8ubordi.n!LJuignnd'compelling. Connecticut's
:restriction on birthcontrohfevicetlhad been 011 ite statute
booksfornearlya centuty,beforetJlil! Courtstruckitdown
on the ground that itlUiconstitlltionally invlI.dml tile lId.
vacy of the Jtlantall'eltl.tionsltip. Gt'is'WolcL v. COn1leCliCIII,
sUP""
. "SurelytheM.j.nnesota'SUlll'lllne cannotbesuggest
ingthatsingle sex lI.1ay.be'hlJiuied becaUJIe they
are bya or os'r population to be
sociallyreprehensible. 81Jcll Iigovernmental motive would
be neither substl!.n..tial.nor, 1iubordinating 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,
. , ' (1969).',' .'
Even assuming tllat eonstitutionally
make marriageability on the partners'win-
I,
.ingqelJll and a.bility to a,nd 'to raise children,
:Minallsota's absoluta bap QP'>lingle.:sell: marriages would
stillbe1lll.eonstitutional. tlllYUgh thegovernmental
purposebe legitimateand 8l1bstantial{,(hatpurposecannot
be pllrslled by means tllat hroadly':sti'fle fundamental por
sonallibertieswhenthef.pd,canbe m?r8narrowlyachieved.
The breadth of legislative- nh;:iclgment"must be viewed in
theligbtoflessdrasticmeaJI8 ffJr';'chievingthesa.mebasic
purpose." SMUOGv. 364 tr:S, 479, 488 (1960).
Thereisnothingin tla!np,tm's of 8iIX marriagaa that
precludesprocreationan,lI,cbild Adoption isquite
"
"
15
clearlyasocially formofprocreation. Italready
renders procreative many marriages between perllons of
, oppositesexesinwhich thepartnel'8arephysicallyoremo
tionally Ullable to conceive their own Of late,
even single persons have become eligible to be adoptive
parents.
Appellants subllut thllrefore, that the appellee cannot
describea legitimategovernmentlnterestwhich is so com
pellingthatno lessrestrictivemeanscanbefl:>und tosetlUre
that interest, ifthere is oue, than to proscribe single sex
mlU'liages. And,evenifthetestto beapplied todetennine
whether the Minnesota proscription offends due process
involves only qnestiolls of wluttller Minnesota has acted
arbitrarily,capriciouslyorunreasonably,appellantssubmit
that the appeUee has failed under that test too. Minne-
sota'sproscriptionsimplyhasnotbeenshown toberation-
allyre1ated toanygovernnlental interest.
The touchstone of the equal protection doctrine as it
bellrII on this ease is found in Loving v. Virginia, 388
U.S. 1 (1967). l"1Jle iSllUe befol'a the Court in that ease
waswhetherVirginia's statute,prohibit-
ingmarriagesbetween 11ctSODs of the Cal1caaian race and
any other race was unconstitutional. The Court struck
doWll. thestatutesaying:
There is patently no legitimAte overriding purpose
I.:ndependent of illvidioUfl racial discrimination which
justi1iesthisclassification. Thefact thatVirginiapro.
hibits only interracial marriages involving wllite per
sons demonstrates that Ule racial clallSifications must
standon own justification as measures designed
to maintain Wbite Supremacy. We Ilave eonsistently
1
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Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 11 of 13
16
:. f
denied the constitutionality of measures which restrict
the rigJlts 01 on ac.count of race. There C&II
be no doubt tltai' :s:esh'icillng the freedom to marry
solely because of J..Mial.cl!l,saifications violates the cell-
tni meaning of Clause. Lot'ill,
v. Virginia, SSS .U:S. 8t'1112. ..
The Minnesota Supl'eme Court ruled that the Lovittg
decision is inapplicable -to tile instant case' on the gronnd
" _ .,that "there is a clear. between a marital reHtric
tion based merely upon rAce Ilnd one h;1lied \\11011 the funda.
mental difference in sex!' (App:, inf;'u, 1). 28a). It is tnl!
that the inherently susi;ect test which thill Court applied
to classifications based UllOn tace., (ooe, e.g., Loving ,.
Virginia, supra,; v. 'Flqrida, supra), has not
yet been extended to based upon lIell: (see
Iteea v. Reed, 92 S. Ot: 251., 30' L. ed.2d 225 (1971). How.
ever, this Court bas 'ill(licated Ulat a fundamental
right-eUc}1 as denied .to a group hy some
'..
classification, the dewal liltoulii be j114ged by the stand/l.fd
that places on the. 'burden of delnoniltrating
a legitimate subordinating that is compelling.
Shapiro v. Thompllo.n, 3lJ4' U.S. 618.. (1969). As we have
already indicated neiUler a. nor a subordinating
reason for this halJ' been. or can be ascribed.
Even if we assume. that the classmeation at illSue in this
easc ill not to be judgea .iIY' more. stringent "constitu.
tionally snspect" an4 interest" standards,
the :Minnesota claflllifi.cation is infirm.
.: ..
The discrimination jn. this caee is one of gender. Espe.
eialJy significant in this tilt'! Court's recent de-
cision in Reed v . .Reedi 92 S. Ct. 251, 80 L. ed.2d 225 (19'11),
. .....
.,"',
11
which held that an IdaJ10 statute, which provided that as
between panORa equaUy qualified to administer estates
males must be vre1'el'red to females, is violative of tlle
equal protection claUiSe of the Fourteenth Amendnillut.
There the Court sa.id (30 L, ed.2d at 229):
In applying that ('laU5C, this Court lIas consistently
reeognil1led that tile Fourteenth aIllllndment does not
deny to States the power to treat different elasses of
persons in different ways. [Citations omitted.] Tlle
Equal Protection Cla.utle of tllat Amendment does,
however, deny to States the power to legislate tllat
different treatment be accorded to persons placed by
a etatute into different classes on the basis of criteria.
wholly unrelated to Ule objective of that statute. A
elassmcatlon "must be reasonable, Uf)t arbitrary, aud
must 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:lstaneed
lIhall 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 "similarly
circumstanced" to childleSll heterosexual couples. Thus,
under the Reed and Royster cases, they must be treated
alike.
Even when judged by tide less stringent standard, the
Minnesota CIIlBSifica.tioll ea.nnot PIlBS constitutional JIIuster.
First, it is difticult to ascertain tlte objl'flt of the legislation
coustrued hy the M!nnesota 'collrts. SecDnd, wbatever ob-
jeots are ascribed for the legislation do not bear any fair
and substantial relationship to the gronnd upon which the
Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 12 of 13
"
18
diff'eren(le is drawn. same sex and llilrerent lex
lIlarriasea.'
.......,-
IL' I'
.,'
Appellee's refulal ,.legitmiiue. appellants' mD'l'iIIp
cOlUlituta an UDW8ft'8Dled invasion of the pthaey hi
vioilltion of the Niulb 'sud Fourleenlb 'Amendmeote.
t"
, , .
, M.arriage between two is, jr' persona! affair, Oll&
",,, whicll the state may or, ellc\llI1ber only when
is a compelling reason' to' do, 'so. Mar'rlage and marital
privacy are risllts protected by the Ninth
I, '
Amel1illlleDt as wen ai",tlie, Fourteentti Amendment due
proee8ll cl.&use. By not allow,ing appellants the legitimacy
of their marriages. the' st.,te' is tllem this buu:
rigbt and unlawfully medUluig in tlleij: privacy.
To hold that a light 110 and
so deep-rooted in 9!lt" ,lIociety &1;' tbe right of privacy
in murlage maybe..,iof,inged liecause that right Is
not guaran.ted in so' many '\Vords'.by tlle first eigbt
amendments to the is to ignore the Ninth
Amendment and to. live it nO'e!lect whatsoever.
Gri&wo/dv. U.S. 410';4fll-492 (Ooldberg, J..
concurring); see also, MiniM ,v. 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 of tile, seX of tile 1l.1>llucants ie
..... ''"\',
The fact that tile parti. tb the dfSh'lld lWlIe sex marriage .&r"e
not bUmid from marril:l.BlI altfigethN" I, to tile constitu-
tionl1l i/Olue. Iilee Reed v. &wtL, IIll)''''; f..olillU 'V. VwgtlliG, supr/%;
v. PklriM., SIIpr3.
I
j
19
i
a denial of the right to marry and to privacy reserved i
to them of the Ninth and Fourleeoth Anum(\m.enbl, See

Grl8wolrl v. O()MlectiC'IIt, 81Ipra; Lovfng v. 388
i
U.s. 1 (1967); cr. Boddie v. O<mnectiC1.d, 401 U.S. 371
I
(19n). Indeed, it is the most fundaJmmtal invasion of
i
!
,
the privacy of the marital relationship for the state to
attempt to scrntinize the intemllI dynamics of that rela-
tionship. Absent a showing of compelling interest, or an
invitation from a party to the relationship, it is none of the
I
state's business whet.hol' the individua.ls to the relationship
intend to procreate or not. Nor is it t}le state's buein8sa to I
determine whether tIle parties intend to engage in Bex acts
'or any IJarticular sex acts. Cf., e.g., Gri8wola v. Oon.necti-
\
cut,
CONCLUSION
For the reasons eel forlh above. prohable jUl'iAdiclion \
should he Doted.
i
Respectfully 8ubUlitted,
R. MlO&Bto WE'I'iLPBBE \
Minnesota Civil Lioorties Union
2323 East Hennepin A venue 1
MiDneapolis. Minnesota SS413
\
i
I
LUN S. CASl'll1B&
I
i
!
1625 park Avenue
Minneapolis. Minnesota 55404
Atto,neys tor .J..ppeUant.s
,
!

Case 1:13-cv-00631-SS Document 39-1 Filed 12/23/13 Page 13 of 13
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 THAT Plaintiffs 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
Case 1:13-cv-00631-SS Document 39-2 Filed 12/23/13 Page 1 of 1