LGBT legal expert says cases like one filed by a Galveston man last week in response to DOMA ruling risk doing more harm than good
Ken Upton
LGBT advocates expect a flood of state marriage lawsuits where same-sex marriage isn’t legal, but more cases could ultimately harm the equality efforts in those states, experts say.
The American Civil Liberties Union has filed lawsuits in Pennsylvania and North Carolina and plans to file a joint suit in Virginia with Lambda Legal. Ken Upton, senior staff attorney at Lambda Legal’s Dallas office, said he’s heard about more lawsuits possibly being filed in Alabama and Florida. That’s in addition to a handful of lawsuits pending in federal court.
Domenico Nuckols filed a lawsuit last week in Galveston against Gov. Rick Perry and Attorney General Greg Abbott to overturn the state’s 2005 constitutional marriage amendment.
Nuckols, a retired nuclear engineer, is representing himself but is looking for pro bono legal representation to help him compile legal documents. He’s been in contact with a national legal organization to discuss his case and hopes to have representation by his pre-trial date on Oct. 9.
Inspired by the U.S. Supreme Court marriage rulings, Nuckols said he filed the case because his partner was deported in 1986 and he was devastated.
“It was demeaning and degrading that we couldn’t even stay in the U.S. together because we were gay,” Nuckols said.
“Everybody should have the same rights to marry who they want,” he added. “I feel like I’m right and the latest rulings are on my side.”
Nuckols has been with his current partner for 10 years and has thought about marrying him, but he’s never been denied a marriage license in the state, something that could hurt his legal standing in the case. However, he’s had six people ask to sign on to his lawsuit from Houston and Galveston, which could help him.
Rebecca L. Robertson, legal and policy director at the ACLU of Texas said the group would be open to working with him.
“We agree with Mr. Nuckols that Texas’s ban on same-sax marriage is unfair to gay and lesbian Texans,” Robertson said. “We at the ACLU have a nationwide strategy for overturning these state bans. Mr. Nuckols hasn’t consulted us, but of course we’d be happy to talk with him about his case.”
Upton said marriage lawsuits have to be very specific and it will take the right case to get state marriage recognition to the U.S. Supreme Court. In Nuckols’ case, Upton said if he has no intention of marrying and hasn’t been denied trying to marry in Texas, the court may decide he’s had no injury based on state law.
He said national momentum has made people inpatient in the fight for equality and seeing progress in some states and at the federal level has spurred people to action.
“They think they’re right and they are. It takes more than that,” Upton said. “To win these cases it takes more than thinking you’re right. The arguments are very complicated.”
Upton said Lambda Legal hasn’t heard about any other lawsuits filed in Texas, adding that the organization can’t take on every marriage lawsuit because a loss could be devastating for moving forward.
“A loss can be deadly in terms of setting everybody back,” he said. “People who bring these cases are not helping. They’re just bringing potentially negative rulings that could hurt everyone by setting them back.”
Before filing a lawsuit, Upton said people should examine their situation and think about how their case is more likely to move forward, especially since cases take years to get to the federal level and many are way ahead of them.
While Texas may not allow same-sex marriage for many years, it’s possible the state may recognize same-sex marriages from other states — at least for the purpose of divorce.
The Texas Supreme Court has requested new briefs in two gay divorce cases. A gay Dallas couple and Austin lesbian couple appealed to the court in 2011. Briefs were requested at one point but oral arguments were never scheduled, but that could change with the new request.
The state high court requested July 3 that “supplemental briefs addressing what legal impact, if any, you believe the United States Supreme Court’s recent decisions in United States v. Windsor and Hollingsworth v. Perry have on the issues raised in the petition for review.”
The briefs must be filed by July 18 and respondents may file a brief by July 29, to which a reply brief must be filed by Aug. 6.
This article appeared in the Dallas Voice print edition July 12, 2013.