Probably not a game-changer, however.
A Galveston man filed a federal lawsuit Tuesday challenging a provision of the Texas Constitution defining marriage as a union of a man and a woman.
Domenico Nuckols, 60, said he believes he will prevail because of last week’s U.S. Supreme Court ruling striking down the federal Defense of Marriage Act, which included the same definition of marriage.
“It’s going to be an uphill battle, but I fired the first shot,” Nuckols said.
The gay rights group Equality Texas was unaware of any similar lawsuits since the Supreme Court Decision, said Chuck Smith, executive director. A section of the state constitution’s Bill of Rights reads, “Marriage in this state shall consist only of the union of one man and woman.” A ballot measure adding the clause passed in 2005 with 75 percent of the vote.
[…]
Nuckols, a retired nuclear engineer, is representing himself and has asked the court to waive his filing fees.
Although supportive of Nuckols’ goal, Smith worried that Nuckols’ lack of an attorney may indicate that he doesn’t have a well-planned legal strategy.
“I would not encourage someone to do something like this without having legal counsel to asses the strategic values of the case,” Smith said. “If you don’t do it the right way you can do more harm than good by losing a case and setting a negative precedent.”
As you know, I Am Not A Lawyer, but I am not too worried about this suit creating a bad precedent because I doubt it will survive a motion to dismiss. Correct me if I’m wrong here, but I don’t think one can advance a lawsuit like this without demonstrating that one has been harmed by the conflict between federal and state law. Since DOMA has just been struck down, and people are still analyzing the opinion and figuring out what its implications are, it has to be too soon for anyone to demonstrate such harm. Mr. Nuckols is talking about being harmed by the deportation of his partner in 1986. I don’t doubt that he was harmed by that, but I don’t think the striking down of DOMA – which didn’t even exist in 1986 – can be used to address that.
I am sure, just as Chuck Smith is, that someone will come forward soon enough that will have good cause for a lawsuit. I have always believed that this is the shortest path to remedy the damage that the 2005 Double Secret Anti-Gay Marriage constitutional amendment cased. Public opinion is changing – support for marriage equality is now the pluarlity position in Texas – but as we know it’ll take a lot more than that to repeal a constitutional amendment. I’m also quite sure that when the right case comes along, the plaintiffs will not be representing themselves. I wish Mr. Nuckols all the best, but I don’t expect his name to be the one associated with the eventual case that brings equality to Texas.
In constitutional challenges, courts typically invoke the “something to lose” doctrine when determining if standing exists. The original petition in this case lacks substantive detail, and the plaintiff’s damages (in this case deportation of his partner in 1986) pre-dates DOMA and just about every other law that bans or otherwise limits recognition of same-sex marriages.
He would be well served to hire an attorney with experience in constitutional law and at least attempt to amend his petition before it gets dismissed. The Southern District of Texas is not a place you want to go pro se.
Pingback: Second lawsuit filed against Texas Double Secret Illegal Anti-Gay Marriage amendment – Off the Kuff