The defense motion cites a very minor change to the identification section of the Texas marriage statute that says a government document that indicates change of sex may be used as identification for a marriage license. They are referring to Section 2.005(b)(8) [proof of identity and age] which states:
TITLE 1. THE MARRIAGE RELATIONSHIP
SUBTITLE A. MARRIAGE
CHAPTER 2. THE MARRIAGE RELATIONSHIP
SUBCHAPTER A. APPLICATION FOR MARRIAGE LICENSE
Sec. 2.005. PROOF OF IDENTITY AND AGE.
(a) The county clerk shall require proof of the identity and age of each applicant.
(b) The proof must be established by:
(8) an original or certified copy of a court order relating to the applicant’s name change or sex change;
Acts 2009, 81st Leg., R.S., Ch. 978, Sec. 2, eff. September 1, 2009.
Texas Family Law Code: Title 1, Subtitle A, Chapter 2, Subchapter A, Section 2.005, paragraph 8
|Attorney Phyllis Frye (left) Nikki Araguz (center)|
Of course attorneys for the plaintiffs, Heather Delgado et al, have argued the opposite about the statutory change. They argue the change in the statute provides for same sex marriages between a post-surgical-transsexual-female and an ostensibly genetic female. However, it seems like such an argument would defy the plaintiff's simultaneous claim that same-sex marriages are illegal in Texas. The logic presented by attorneys for Nikki Araguz is that her marriage is a heterosexual one, based on the fact that Nikki Araguz presently has a vagina and that Thomas Araguz had ostensibly always had a penis and an XY chromosomal pair, in contrary to Littleton v. Prange, and in accordance with the minor statutory change, Texas law should recognize the fundamentally heterosexual nature of such a marriage for all practical purposes. One fact that remains unknown, is the chromosomal makeup of Nikki Araguz's sex chromosomes, although Nikki's mother has made emphatic statements that Nikki Araguz was born with AIS, and video recordings of Nikki at about age nineteen or twenty provide ample evidence that testosterone had not had any influence on her body at that juncture in her life. What seems likely is that the attorneys for Heather Delgado will file a motion to require that Nikki Araguz undergo genetic testing and a medical examination to verify the status of her genitals and potentially her internal reproductive organs, if any, as well.
The second argument the defense makes in its motion, is that although the August 2008 marriage may not have been legal, the parties should be considered married under "common law marriage" in Texas after Nikki Araguz's vaginoplasty operation with Marci Bowers in October 2008 and after the subsequent statutory change cited above. The attorneys for Nikki Araguz have used September 2, 2009, as the date of their "legal and informal marriage", on the basis that the change in Texas statutory law took effect on September 1, 2009.
The defense also filed exhibits containing copies of email messages sent between Thomas Araguz and Nikki Araguz during October 2008 when Nikki was in Trinidad Colorado having her vaginoplasty surgery with Marci Bowers on October 7, 2008, but Thomas apparently had to stay in Texas because he was on call for fireman's duty. If they were smart enough to include the full transmission headers with the emails, it seems like such emails would serve as excellent evidence of what knowledge Thomas Araguz had at the time regarding the fact that Nikki Araguz has Androgen Insensitivity Syndrome (AIS), an intersex/hermaphroditic condition, and got surgery to create a vagina to align her genitals with her naturally occurring estrogen influenced hormonal condition. Thomas Araguz wrote in an email to Nikki:
What can i say to make you feel better? The only thing I known (sic) is 'I LOVE YOU.' Trevor and Tyler miss you dearly, they love you with all their little heats. (sic) Today has been a hell of day, would you agree? After taking (sic) to you, I called my mother and law (sic) to let her known (sic) the good news, about your opt. An (sic) you know she spead (sick) the good news all the world. HEY I TO GO I A HOUSE FIRE. ILU.In response, Nikki Araguz replied:
My sweet husband, I LOVE YOU. It has been a day heck and also God answered prayers. I love you so much. We can now move on with the rest of our livrs (sic)...I just got this thing to work somehow and the pain lady came in and gave me morphine...si I am fading fast. You are my best friend, and Praise God fro (sic) you...this is wild that little thing is gone...I think I am supposed to see it for the first timr (sic) tomorrow....Imiss my boys too...Have a great day at school tomorrow...Love you sweet wife, Mrs. Nikki AraguzOn Monday August 2, Nikki Araguz has been reported as stating:
This is less about money than it is about the civil rights of my husband and I to legally be recognized as we recognized each other - as a heterosexual, male and female married couple. There is no question that my husband knew exactly what was going on. He was fully loving and accepting and compassionate to the medical condition that I was dealing with when we first met.The defense team for Nikki Araguz either included in the same motion, or filed in a separate motion (newspapers weren't clear), a request to exclude from the lawsuit, all proceeds from insurance and pension funds, in which Thomas Araguz explicitly and specifically designated Nikki Araguz as the beneficiary. Apparently Thomas Araguz had the presence of mind to check the "other" box rather than the "spouse" box on those documents, which seems like it provides additional evidence of his awareness of the potential arguments over the legality of their marriage.
As for the August 2008 wedding ceremony, it seems like all sorts of people have wedding ceremonies without making them a legal matter recognized with a marriage license. Given today's motion(s), it seems like the defense team for Nikki Araguz understands that a marriage license from August 2008 wouldn't be valid under any legal theory in Texas, since Nikki didn't get to Trinidad for surgery with Marci Bowers until October 2008, and they have filed the email exchanges that document that Thomas was fully aware that was happening.
A couple of the news reports also implied that attorneys for Nikki Araguz have filed motions in both the child custody lawsuit and the probate/inheritance lawsuit, where Frank Mann represents Simona Longoria, or has other involvement with the cases, to have him removed. Evidence has surfaced the Frank Mann has committed "conflict of interest" and breached "attorney/client privilege", which are both serious violations of the code of ethics that attorneys are required by law to follow. One blog, known as "bad lawyer nyc", characterized Frank Mann as a "menace" who has no business practicing law.
In summary, it seems like the defense attorneys for Nikki Araguz are going to use the statutory change cited above as the basis for a fresh "first impression" legal battle over marriage legality for transsexual people in Texas. Today's motion also appears to serve as the Texas equivalent of the 12(b)(6) "failure to state a claim upon which relief can be granted" form of motion to dismiss that would have been filed pursuant to the federal style rules used in most other jurisdictions, and which always precedes filing an "answer" to a lawsuit.