Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 8 of 36

2013-75301/Court: 310
CAUSE NO.

12/17/20133:51:24 PM Chris Daniel • District Clark Hauls County
Envtlop* No. 8901 8 By: Rut h McDugl*

JACK PIDGEON AND § LARRY HICKS, § PLAINTIFFS, §
v. §
MAYOR ANNISE PARKER AND § CITY OF HOUSTON, § DEFENDANTS. §

I
§ HARRI
§
JUDICIA

N THE DISTRICT COURT S COUNTY, TEXAS L DISTRICT

PLAINTIFFS' ORIGINAL PETITION, APPLICATION FO R TEMPORARY RESTRAINING ORDER ,
APPLICATION FOR TEMPORARY INJUNCTION, AND
APPLICATION FOR PERMANENT INJUNCTION

TO THE HONORABLE COURT:

Plaintiffs, Jack Pidgeon and Larry Hicks, complain of Defendants, Mayor Annise Parker and

the City of Houston ("Defendants"), and for cause of action shows:

I. DISCOVER Y PLA N 1.1 Discover y is intended to be conducted under Level 3 as set forth in Rule 19 0 of the Texas Rules of Civil Procedure.

II. PARTIE S 2.1 Plaintiff , Jack Pidgeon, is a legal adult over the age of eighteen (18), who resides in Houston, Texas, Harris County. He is a taxpayer and qualified voter residing within the boundaries of the City of Houston; he resides at 12427 Honeywood Trail, Houston, Texas 77077. 2.2 Plaintiff , Larr y Hicks, is a legal adult over the age of eighteen (18), who resides in

Houston, Texas, Harris County. He is a taxpayer and qualified vote r residing within the

boundaries of the City of Houston; he resides at 954 Qessner, Houston, Texas 77080.

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2.3 Plaintiff s ar e taxpayers in the City of Houston and Defendants are expending significant public funds on an illegal activity.
2.4 Defendant , Annise Parker, is an individual residing in Harris County, Texas and is Mayor of the City of Houston. She may be served at her office a t City Hall, 900 Bagby St., Houston, Texas 77002.
2.5 Defendant , City of Houston, is a local governmental entity as defined by Texas Government Code §554.001 an d may be served with citation by serving Mayor Annise Parker through the City of Houston, Texas, Secretary Anna Russell, located at 900 Bagby St., Houston, Texas 77002.
III. JURISDICTIO N 3.1 Thi s Court has subject matter jurisdiction over this action because the amount in controversy exceeds the minimum jurisdictional limit s of the court exclusive of interest and Plaintiffs see k relief that can be granted by either courts of law or equity. 3.2 Thi s Court has jurisdiction over this lawsuit and the parties herein, and is jurisdictionally competent to render judgment in this matter. 3.3 Th e amount in controversy and the relief sought are within the jurisdictional limits of the Court. This Court is authorized to grant Plaintiffs prayer for relief regarding costs, including Plaintiffs' reasonable attorney's fees. 3.4 Thi s Court is a court of law and equity.
IV. VENU E 4.1 Venu e of this action is proper in Harris County under Texas Civil Practice & Remedies Code §15.001 et. seq. becaus e all or a substantial part of the events or omissions giving rise to Plaintiffs' claim s occurred in Harris County, Texas.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 10 of 36
V. FACTUA L ALLEGATION S 5.1 O n November 19,2013 , a few days after being reelected to her final term as Mayor of the City of Houston, Annise Parker directed the City of Houston's Human Resource Department to offer benefits to same-sex spouses of City of employees who are married in a state that recognizes same-sex marriage. (Exhibit "A") 5.2 Specifically , Mayor Parker "directed that same-sex spouses of employees who have been legally married in another jurisdiction be afforded th e same benefits as spouses of a heterosexual marriage." (Exhibit "A") 5.3 Th e act is a clea r violation Texas Family Code §6.204, Texas Constitution Article I, Section 32, and Article II, Section 22 of the City of Houston Charter.
VI. FIRST CAUSE OF ACTION TEXAS FAMILY CODE §6.20 4 6.1 Plaintiff s hereb y reincorporate and adopt by reference for all purposes each and every allegation contained in the preceding paragraphs and sections numbered I through V. 6.2 Texa s Family Code §6.204, also known as the Texas Defense of Marriage Act ('Texas DOMA"), prohibits political subdivisions of the state from giving effect to: 1. A 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 stat e or any other jurisdiction; or 2. Righ t 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 any jurisdiction. Texas Family Code §6.204(c).

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6.3 Mayo r Parker's public act of providing taxpayer funded benefits to same sex couples married in a state that recognizes same-sex marriage creates, recognizes and validates a marriage between persons of the same sex from another jurisdiction in violation of Texas Family Code§6.204(cXl).
6.4 B y providing a benefit resulting from a marriage between persons of the same sex recognized in a state other than Texas, Mayor Parker and the City of Houston have violate d Texas Family Code §6.204(c)(2) .
6.5 Plaintiff s hav e no adequate remedy at law to correct the continuing deprivations of their constitutional rights by the Defendants' actions in violation of the Texas Family Code.
VII. SECON D CAUSE OF ACTION TEXAS CONSTITUTION-ARTICLE I , SECTION 32 7.1 Plaintiff s hereb y reincorporate and adopt by reference for all purposes each and every allegation contained in the preceding paragraphs and sections numbered I through VI. 7.2 I n 2005, voters approved an amendment to the Texas Constitution definin g marriage as the union of only one man and one woman and prohibiting the creation or recognition of any legal status identical or similar to marriage. TEX. CONST , art. 1, §32. 7.3 Articl e 1 , Section 32 of the Texas Constitution states: (a) Marriag e in this state shall consist only of the union of one man and one woman. (b) Thi s state or a political subdivisio n of this state may not create or recognize any legal statu s identical or similar to marriage. 7.4 Defendant s have violated Texas Constitution- Article I, Section 32 which define s marriage as a union between a man and a woman. 7.5 B y recognizing a definition of marriage contrary to the definition approve d b y voters in 2005, the Mayor Parker and the City of Houston violate Texas Constitution-Article I , Section 32.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 12 of 36
7.6 Plaintiff s hav e no adequate remedy at law to correct the continuing deprivations of their constitutional rights by the Defendants actions in violation of the Texas Constitution.
Vni. THIRD CAUSE OF ACTION CITY OF HOUSTON CHARTER, ARTICLE II, SECTION 2 2 8.1 Plaintiff s hereby incorporate and adopt by reference for all purposes each and every allegation contained in the preceding paragraphs and sections numbered I through VII. 8.2 Cit y of Houston Charter, Article II §22, which was initiated by voter petition, states: Except as required by State or Federal law, the City of Houston shall not provide employment benefits, including health care, to persons other than employees, their legal spouses an d dependent children; nor shall the City provide any privilege in promotion, hiring, or contracting to a person or group on the basis of sexual preference, either by a vote of the city council or an executive order of the Mayor. Further, the City of Houston shall not require entities doing business with the City to have any of the above benefits or policies. If any portion of this proposed Charter amendment is declared unlawful, the n such portion shall be removed and the remainder of the Charter amendment will remain in effect. An y ordinance in conflict with this section of the Charter is hereby repealed and declared invalid. Article II, Section 22. (emphasis added.)
DC EQUITABLE RELIEF-INJUNCTION S 9.1 Plaintiff s hereby reincorporate and adopt by reference for all purposes each and every allegation contained in the preceding paragraphs and sections numbered I through VIII.

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9.2 Plaintiff s see k a temporary restraining order, and temporary and permanent injunction enjoining Defendants, their agents, employees, and all other persons acting in active concert with them from, inter alia, providin g benefits to same-sex spouses of employees that have been married in jurisdictions that recognize same-sex marriage providing benefits to same sex couples.
9.3 A s demonstrated above, Mayor Parker's illegal directive/order is a violation of the law and Plaintiffs are likely to succeed on the merits of his lawsuit.
9.4 I f the temporary restraining order and temporary and permanent injunction is not granted, Plaintiffs will suffer a probable injury. As a result of Mayor Parker's unlawful act , harm is imminent, the injury would be irreparable, and Plaintiffs have no other adequate legal remedy .
9.5 Plaintiff s are willing to post bond. X. ACTUA L DAMAGE S
A. Actua l Damage s 10.1 A s a direct and proximate result of the acts and omissions of Defendants set forth above, Plaintiffs have incurred damages in excess of the minimum jurisdictional limit s of this Court. B. Attorney' s Fee s 10.2 Plaintiff s have been required to retain the services of the undersigned attorney s to bring this action. By virtue of Defendants' conduct as alleged above, an award of reasonable attorneys' fees to Plaintiffs i s recoverable pursuant to §38.001 o f the Texas Civil Practic e & Remedies Code. 10.3 Accordingly , Plaintiffs request that the Court issue a temporary restraining order immediately, without notice, enjoining Defendants from providing benefits to same-sex spouse s

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of employees that have been married in jurisdictions that recognize same-sex marriage. Further, Plaintiffs reques t that this restraining order be continued after hearing into a temporary injunction until final hearing, at which time a permanent injunction should be granted.
HAVING CONSIDERED THESE PREMISES, Plaintiffs request that the Court issue a temporary restraining order, temporary injunction and permanent injunction, restraining and enjoining Defendants and their agents and any persons acting in concert with them from providing benefits to same-sex spouses of City of Houston employees that have been married in jurisdictions that recognize same-sex marriages
Plaintiffs furthe r request that Defendants be cited to appear and answer, and that upon final trial , Plaintiffs hav e and recover:
1. judgmen t against Defendants, for Plaintiffs' damages in an amount in excess of the jurisdictional limits of this Court;
2. reasonabl e attorney's fees; 3. pre-judgmen t interest as allowed by law; 4. post-judgmen t interest as allowed by law; 5. al l costs of suits; and 6. suc h other and further relief to which Plaintiffs may be justly entitled.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 15 of 36
R
• R. WOODFILL jBar No.: 00788715
ITTALTON Bar No.: 19629800 River Oaks Green 3131 Eastside Street, Suite 450 Houston, Texas 77098 Telephone: 713-751-3080 Facsimile: 713-751-3058 Attorney for Jack Pidgeon and Larry Hicks, Plaintiffs
JONATHAN M. SAENZ State Bar No: 24041845 Texas Values 900 Congress, Ste 220 Austin, Texas 78701

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 16 of 36

STATE OF TEXAS

§

COUNTY OF HARRIS

5

BEFORE ME, the undersigned authority on this day personally appeared

JACK R, PIDGEON, who being by me duly sworn under oath stated as follows:

1. M y name is Jack R. Pidgeon, I am over eighteen (18) years of age, and am fully

competent to make this Affidavit ,

2. I have read paragraphs 1 to 10 of Plaintiff's Original Petition, Application fo r

Temporary Restraining Order, Application for Temporary Injunction, and Application fo r

Permanent Injunction, and I have personal knowledge of the factual allegations stated therein and

each of such factual allegation is true and correct

SUBSCRIBED AND SWORN TO BEFORE me on the fvtoi o certify which witness my hand and official seal of office .

f December 2013, to

Notary Public, State of Texas

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 17 of 36

VERIFICATION

STATE OF TEXAS

§

§

COUNTY OF HARRIS

§

BEFORE ME, the undersigned authority on this day personally appeared

LARRY HICKS, who being by me duly sworn under oath stated as follows:

1. My name is Larry Hicks. I am over eighteen (18) years of age, and am fully

competent to make this Affidavit

2. I have read paragraphs 1 to 10 of Plaintiffs' Original Petition, Application for

Temporary Restraining Order, Application for Temporary Injunction, and Application for

Permanent Injunction, and I have personal knowledge of the factual allegations stated therein and

each of such factual allegation is true and correct.

SUBSCRIBED AND SWORN TO BEFORE me on the / 7 day of December 2013, to certify which witness my hand and official seal of office.

My Commission Expires:

Notary Public, State of Texas f^jf^1 MM m

10

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 18 of 36

L Chris Daniel, District Clerk of Harris County, Texas certify mat this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this December 19. 2013

Certified Document Number

58775509

Chris Daniel DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordanc e wit h Texa s Governmen t Cod e 406.01 3 electronicall y transmitte d authenticate d documents a n valid . If ther e is a question regardin g the validity o f this documen t an d or seal plaasa e-mai l support@hcdistrictclerk.co m

 
 Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 20 of 36

P-&
CAUSENO.AO ! 3 - ^ 3 O

JACK PIDGEON AND

§

LARRY HICKS,

§

PLAINTIFFS,

§

§

v.

§

§

MAYOR ANNISE PARKER AND

§

CITY OF HOUSTON,

§

DEFENDANTS.

§

IN THE DISTRICT COURT
HARRIS COUNTY, TEXAS
-a i ^ w 1 U JUDICIAL DISTRICT

ORDER ON PLAINTIFFS ' APPLICATION FO R TEMPORARY RESTRAININ G ORDE R

CAME ON FOR CONSIDERATION Jack Pidgeon and Larry Hicks ("Plaintiffs")

application for a Temporary Order, presented to the Court today. The Court examined the

pleadings of Plaintiffs, the evidence presented, and the argument of counsel, and afler due

consideration finds that: 1) a cause of action against the Defendants exists; flF 2) Plaintiffs have a probable right to the relief sought; and

FILED
* ChrtoDan M District Clark T 1 7 7flf 3
Time:
Harris count;

By

I Deputy

3) Plaintiffs will suffer a probable, imminent, and irreparable injury in the interim.

Therefore, Plaintiffs are entitled to a temporary injunction.

It is therefore ORDERED that the clerk of this Court issue a temporary injunction

enjoining Defendants, Mayor Annise Parker and the City of Houston ("Defendants") and any

other person(s) with knowledge of this Order, to cease and desist providing benefits to same-sex

spouses of employees that have been married in jurisdictions that recognize same-sex marriage

providing benefits to same sex couples. This order shall stand until further Order of this Court.

Plaintiffs have shown a probable injury because the harm is imminent; if the temporary

restraining order does not issue, the injury would be irreparable; and the applicant has not other

adequate legal remedy.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 21 of 36

If the temporary injunction is not issued, the Defendants' unlawful policy providing

benefits to same-sex spouses of employees that have been married in jurisdictions that recognize

same-sex marriage providing benefits to same sex couples will remain in place; therefore, the harm to Plaintiffs1 constitutional and statutory rights is imminent.

Plaintiffs' claims of statutory and constitutional injury and violation of the City of

Houston's Charter, present a substantial threat that irreparable injury would result if the

temporary restraining order does not issue.

Finally, Plaintiffs have no other adequate remedy at law because no amount of money

can compensate Plaintiffs for the loss of their constitutional and statutory rights. However,

Plaintiffs are not required to prove that they have no adequate remedy at law when they have a

statutory right to an temporary restraining order, as provided by sections 106.002(a) and

110.005(a)(2) of the Texas Civil Practice and Remedies Code.

This temporary injunction is effective immediately and shall continue in force and effect

until further order of this Court. This order shall be binding on Defendants, and any other

person(s) who receive actual notice of this order by personal service or otherwise.

IT IS FURTHER ORDERED that this temporary injunction be effective immediately and

the bond paid by Plaintiffs in the amount of $250.00 for each Defendant, $500.00 total payable

to Defendants will extend to this temporary injunction. The Clerk of this Court is hereby

ORDERED to issue citation and notice to Defendants, Mayor Annise Parker and the City of

Houston.

This cause is set for ^ on' ^ 3*0U ? UP^ \c \ $C (^ ojt 3''COOL/))

SIGNED on DE C 1 7 201 3 201 3 at m

.

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 Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 1 of 36

IN THE UNITED STATES DISTRICT COUR T FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISIO N

JACK PIDGEON and § LARRY HICKS, § Plaintiffs §
v. §
MAYOR ANNISE PARKER and § CITY OF HOUSTON §
Defendants §

§ CIVI
§

L ACTION NO.

NOTICE OF REMOVAL

TO THE HONORABLE JUDGE OF THE UNITED STATES DISTRICT COURT:

Pursuant to Title 28 U.S.C. §§133l,1441(a) and 1443, Defendants, Mayor Annise

Parker ("the Mayor") and the City of Houston ("the City")(collectively "Defendants"), give notice of their removal of an action filed against them in the 310th Judicial District Court of

Harris County, Texas, to the United States District Court for the Southern District of Texas,

Houston Division. In support, Defendants respectfully state as follows:

Introduction

1. On or about December 17, 2013, Plaintiffs filed in state district court Cause

No. 2013-75301, Jack Pidgeon and Larry Hicks, Plaintiffs, v. Mayor Annise Parker and the City of Houston, Defendants, in the 310th Judicial District Court, Harris County, Texas.'

Plaintiffs identified the matter as relating to family law, and it was therefore filed by the

See Original Petition attached hereto as Exhibit A.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 2 of 36
district clerk in a district court that primarily handles family law matters. 2. Though Plaintiffs never properly served either the Mayor or the City with
Plaintiffs' Original Petition for Application for Temporary Restraining Order, Application for Temporary Injunction and Application for Permanent Injunction, the family court conducted an exparte hearing on Plaintiffs' Application for Temporary Restraining Order without proper notice to the Defendants at approximately 5:00 p.m. on December 17, 2013. The Court issued a Temporary Restraining Order at 5:13 p.m., ordering the Mayor and the City "to cease and desist providing benefits to same-sex spouses of employees that have been married in jurisdictions that recognize same-sex marriage."2 Defendants, though never properly served with the Temporary Restraining Order, filed a Motion to Dissolve Temporary Restraining Order on December 19,2013. The state family court, after conducting a hearing, denied the Motion to Dissolve on December 20, 2013. This Notice of Removal is therefore timely filed less than thirty (30) days after receipt by the Defendants of the initial pleading setting forth the claim for relief upon which such action is based. The Mayor and the City are the only defendants in this case, and both seek removal.
3. The United States District Court for the Southern District of Texas, Houston Division is the federal judicial district encompassing Harris County, Texas. Therefore the Southern District of Texas, Houston Division, is the appropriate location for a removal from Harris County, Texas, pursuant to 28 U.S.C. § 1441 (a).
See Temporary Restraining Order dated December 19, 2013 attached hereto as Exhibit B. 2

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 3 of 36
4. The Clerk of the District Court of Harris County, Texas and Plaintiffs' counsel have been given notice of the filing of this Notice of Removal.
Federal Question Jurisdictio n 5. Defendants remove of this action to federal court based on federal question jurisdiction under 28 U.S.C. § 1143. The issues presented in this action — the equal protection and due process rights (including fundamental liberty interests) of legally married same-sex couples under the Fifth and Fourteenth Amendments to the United States Constitution — present substantial questions of federal law.
Pertinent Backgroun d 6. Plaintiffs premise their action upon the Mayor's November 19,2013 directive to the City of Houston's Human Resources Department which, in light of the United States Supreme Court's ruling in United States v. Windsor, 133 S.Ct. 2675 (2013), and other relevant federal authority, directed that department to offer benefits to the same-sex spouses of the City's employees who are legitimately married in states which recognize same-sex marriage.3 7. Plaintiffs assert that the Mayor's directive, inter alia, violated the City of Houston Charter Article II, Section 22 which states:
Except as required by State or Federal law, the City of Houston shall not provide employment benefits, including health care, to persons other than employees, their legal spouses and dependent children; nor shall the City provide any privilege in promotion, hiring or contracting to a person or group
See Directive dated November 19, 2013 attached hereto as Exhibit F. 3

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 4 of 36
on the basis of sexual preference, either by a vote of the city council or an executive order of the Mayor. Further, the City of Houston shall not require entities doing business with the City to have any of the above benefits or policies.
If any portion ofthis proposed Charter amendment is declared unlawful, then such portion shall be removed and the remainder of the Charter amendment will remain in effect. Any ordinance in conflict with this section of the Charter is hereby repealed and declared invalid, (emphasis added.) Plaintiffs have therefore invoked the federal question jurisdiction of this court by their pleading. Plaintiffs also allege that the directive violates Section 6.024 of the Texas Family Code and Article 1, Section 32, of the Texas Constitution. They accuse the City of also committing these violations by implementing the directive. 8. Defendants have complied with Local Rule 81 by attaching the following documents:
1. All executed process (none in this cause); 2. All pleadings asserting causes of action (Exhibit A); 3. All orders signed by the state court judge (Exhibit B); 4. The state court docket sheet (Exhibit C); 5. A list of all counsel of record, including addresses, telephone numbers
and parties represented (Exhibit D); and 6. An index of the documents being filed (Exhibit E) 9. A written notice of the filing of this removal is being served on all adverse parties and a copy of the notice filed with the clerk of the court from which this action is removed, along with a copy of this Notice.

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Conclusion

10. Because of the substantial questions of federal law raised by Plaintiffs' state

court action, its removal to federal court by the Mayor and the City is proper.

WHEREFORE, Defendants Mayor Annise Parker and the City of Houston hereby give notice that this action is removed from the 310th Judicial District Court, Harris County,

Texas, to the United States District Court, Southern District of Texas, Houston Division.

Dated:

December 27, 2013

Respectfully submitted,

DAVID M. FELDMAN
City Attorney LYNETTE K. FONS First Assistant City Attorney for Litigation JUDITH L. RAMSEY Chief, General Litigation Section

By: David M. Feldman City Attorney Texas Bar No. 06886700 Federal ID: 2994 Lynette K. Fons First Assistant City Attorney Texas Bar No. 13268100 Federal ID: 10562 Judith L. Ramsey Chief, General Litigation Section Texas Bar No. 16519550 Federal ID: 1124189 John B. Wallace Senior Assistant City Attorney Texas Bar No. 20769750 Federal ID: 2393

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 6 of 36

CITY OF HOUSTON LEGAL DEPARTMENT
900 Bagby, 4th Floor Houston, Texas 77002 832.393-6438 - Telephone 832.393-6259 - Facsimile david. feldman@houstontx.gov judith.ramsey@houstontx.gov Attorneys for Defendants, MAYOR ANNISE PARKER and THE CITY OF HOUSTON

CERTIFICATE O F SERVICE
I, David M. Feldman, hereby certify that on the 27th of December, 2013, a copy of the foregoing Notic e o f Remova l was served upon the following parties via electronic service, facsimile, and/or CMRRR:

Jared Woodfill Robert Talton Woodfill Law Firm 3131 Eastside Street, Suite 450 Houston, Texas 77098 Fax: 713.751.3058

Jonathan M. Saenz Texas Values 900 Congress Avenue, Suite 220 Austin, Texas 78701 Fax: 512.478.2229

David M. Feldman

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EXHIBIT A

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 8 of 36

2013-75301/Court: 310
CAUSE NO.

12/17/20133:51:24 PM Chris Daniel • District Clark Hauls County
Envtlop* No. 8901 8 By: Rut h McDugl*

JACK PIDGEON AND § LARRY HICKS, § PLAINTIFFS, §
v. §
MAYOR ANNISE PARKER AND § CITY OF HOUSTON, § DEFENDANTS. §

I
§ HARRI
§
JUDICIA

N THE DISTRICT COURT S COUNTY, TEXAS L DISTRICT

PLAINTIFFS' ORIGINAL PETITION, APPLICATION FO R TEMPORARY RESTRAINING ORDER ,
APPLICATION FOR TEMPORARY INJUNCTION, AND
APPLICATION FOR PERMANENT INJUNCTION

TO THE HONORABLE COURT:

Plaintiffs, Jack Pidgeon and Larry Hicks, complain of Defendants, Mayor Annise Parker and

the City of Houston ("Defendants"), and for cause of action shows:

I. DISCOVER Y PLA N 1.1 Discover y is intended to be conducted under Level 3 as set forth in Rule 19 0 of the Texas Rules of Civil Procedure.

II. PARTIE S 2.1 Plaintiff , Jack Pidgeon, is a legal adult over the age of eighteen (18), who resides in Houston, Texas, Harris County. He is a taxpayer and qualified voter residing within the boundaries of the City of Houston; he resides at 12427 Honeywood Trail, Houston, Texas 77077. 2.2 Plaintiff , Larr y Hicks, is a legal adult over the age of eighteen (18), who resides in

Houston, Texas, Harris County. He is a taxpayer and qualified vote r residing within the

boundaries of the City of Houston; he resides at 954 Qessner, Houston, Texas 77080.

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2.3 Plaintiff s ar e taxpayers in the City of Houston and Defendants are expending significant public funds on an illegal activity.
2.4 Defendant , Annise Parker, is an individual residing in Harris County, Texas and is Mayor of the City of Houston. She may be served at her office a t City Hall, 900 Bagby St., Houston, Texas 77002.
2.5 Defendant , City of Houston, is a local governmental entity as defined by Texas Government Code §554.001 an d may be served with citation by serving Mayor Annise Parker through the City of Houston, Texas, Secretary Anna Russell, located at 900 Bagby St., Houston, Texas 77002.
III. JURISDICTIO N 3.1 Thi s Court has subject matter jurisdiction over this action because the amount in controversy exceeds the minimum jurisdictional limit s of the court exclusive of interest and Plaintiffs see k relief that can be granted by either courts of law or equity. 3.2 Thi s Court has jurisdiction over this lawsuit and the parties herein, and is jurisdictionally competent to render judgment in this matter. 3.3 Th e amount in controversy and the relief sought are within the jurisdictional limits of the Court. This Court is authorized to grant Plaintiffs prayer for relief regarding costs, including Plaintiffs' reasonable attorney's fees. 3.4 Thi s Court is a court of law and equity.
IV. VENU E 4.1 Venu e of this action is proper in Harris County under Texas Civil Practice & Remedies Code §15.001 et. seq. becaus e all or a substantial part of the events or omissions giving rise to Plaintiffs' claim s occurred in Harris County, Texas.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 10 of 36
V. FACTUA L ALLEGATION S 5.1 O n November 19,2013 , a few days after being reelected to her final term as Mayor of the City of Houston, Annise Parker directed the City of Houston's Human Resource Department to offer benefits to same-sex spouses of City of employees who are married in a state that recognizes same-sex marriage. (Exhibit "A") 5.2 Specifically , Mayor Parker "directed that same-sex spouses of employees who have been legally married in another jurisdiction be afforded th e same benefits as spouses of a heterosexual marriage." (Exhibit "A") 5.3 Th e act is a clea r violation Texas Family Code §6.204, Texas Constitution Article I, Section 32, and Article II, Section 22 of the City of Houston Charter.
VI. FIRST CAUSE OF ACTION TEXAS FAMILY CODE §6.20 4 6.1 Plaintiff s hereb y reincorporate and adopt by reference for all purposes each and every allegation contained in the preceding paragraphs and sections numbered I through V. 6.2 Texa s Family Code §6.204, also known as the Texas Defense of Marriage Act ('Texas DOMA"), prohibits political subdivisions of the state from giving effect to: 1. A 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 stat e or any other jurisdiction; or 2. Righ t 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 any jurisdiction. Texas Family Code §6.204(c).

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6.3 Mayo r Parker's public act of providing taxpayer funded benefits to same sex couples married in a state that recognizes same-sex marriage creates, recognizes and validates a marriage between persons of the same sex from another jurisdiction in violation of Texas Family Code§6.204(cXl).
6.4 B y providing a benefit resulting from a marriage between persons of the same sex recognized in a state other than Texas, Mayor Parker and the City of Houston have violate d Texas Family Code §6.204(c)(2) .
6.5 Plaintiff s hav e no adequate remedy at law to correct the continuing deprivations of their constitutional rights by the Defendants' actions in violation of the Texas Family Code.
VII. SECON D CAUSE OF ACTION TEXAS CONSTITUTION-ARTICLE I , SECTION 32 7.1 Plaintiff s hereb y reincorporate and adopt by reference for all purposes each and every allegation contained in the preceding paragraphs and sections numbered I through VI. 7.2 I n 2005, voters approved an amendment to the Texas Constitution definin g marriage as the union of only one man and one woman and prohibiting the creation or recognition of any legal status identical or similar to marriage. TEX. CONST , art. 1, §32. 7.3 Articl e 1 , Section 32 of the Texas Constitution states: (a) Marriag e in this state shall consist only of the union of one man and one woman. (b) Thi s state or a political subdivisio n of this state may not create or recognize any legal statu s identical or similar to marriage. 7.4 Defendant s have violated Texas Constitution- Article I, Section 32 which define s marriage as a union between a man and a woman. 7.5 B y recognizing a definition of marriage contrary to the definition approve d b y voters in 2005, the Mayor Parker and the City of Houston violate Texas Constitution-Article I , Section 32.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 12 of 36
7.6 Plaintiff s hav e no adequate remedy at law to correct the continuing deprivations of their constitutional rights by the Defendants actions in violation of the Texas Constitution.
Vni. THIRD CAUSE OF ACTION CITY OF HOUSTON CHARTER, ARTICLE II, SECTION 2 2 8.1 Plaintiff s hereby incorporate and adopt by reference for all purposes each and every allegation contained in the preceding paragraphs and sections numbered I through VII. 8.2 Cit y of Houston Charter, Article II §22, which was initiated by voter petition, states: Except as required by State or Federal law, the City of Houston shall not provide employment benefits, including health care, to persons other than employees, their legal spouses an d dependent children; nor shall the City provide any privilege in promotion, hiring, or contracting to a person or group on the basis of sexual preference, either by a vote of the city council or an executive order of the Mayor. Further, the City of Houston shall not require entities doing business with the City to have any of the above benefits or policies. If any portion of this proposed Charter amendment is declared unlawful, the n such portion shall be removed and the remainder of the Charter amendment will remain in effect. An y ordinance in conflict with this section of the Charter is hereby repealed and declared invalid. Article II, Section 22. (emphasis added.)
DC EQUITABLE RELIEF-INJUNCTION S 9.1 Plaintiff s hereby reincorporate and adopt by reference for all purposes each and every allegation contained in the preceding paragraphs and sections numbered I through VIII.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 13 of 36
9.2 Plaintiff s see k a temporary restraining order, and temporary and permanent injunction enjoining Defendants, their agents, employees, and all other persons acting in active concert with them from, inter alia, providin g benefits to same-sex spouses of employees that have been married in jurisdictions that recognize same-sex marriage providing benefits to same sex couples.
9.3 A s demonstrated above, Mayor Parker's illegal directive/order is a violation of the law and Plaintiffs are likely to succeed on the merits of his lawsuit.
9.4 I f the temporary restraining order and temporary and permanent injunction is not granted, Plaintiffs will suffer a probable injury. As a result of Mayor Parker's unlawful act , harm is imminent, the injury would be irreparable, and Plaintiffs have no other adequate legal remedy .
9.5 Plaintiff s are willing to post bond. X. ACTUA L DAMAGE S
A. Actua l Damage s 10.1 A s a direct and proximate result of the acts and omissions of Defendants set forth above, Plaintiffs have incurred damages in excess of the minimum jurisdictional limit s of this Court. B. Attorney' s Fee s 10.2 Plaintiff s have been required to retain the services of the undersigned attorney s to bring this action. By virtue of Defendants' conduct as alleged above, an award of reasonable attorneys' fees to Plaintiffs i s recoverable pursuant to §38.001 o f the Texas Civil Practic e & Remedies Code. 10.3 Accordingly , Plaintiffs request that the Court issue a temporary restraining order immediately, without notice, enjoining Defendants from providing benefits to same-sex spouse s

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 14 of 36
of employees that have been married in jurisdictions that recognize same-sex marriage. Further, Plaintiffs reques t that this restraining order be continued after hearing into a temporary injunction until final hearing, at which time a permanent injunction should be granted.
HAVING CONSIDERED THESE PREMISES, Plaintiffs request that the Court issue a temporary restraining order, temporary injunction and permanent injunction, restraining and enjoining Defendants and their agents and any persons acting in concert with them from providing benefits to same-sex spouses of City of Houston employees that have been married in jurisdictions that recognize same-sex marriages
Plaintiffs furthe r request that Defendants be cited to appear and answer, and that upon final trial , Plaintiffs hav e and recover:
1. judgmen t against Defendants, for Plaintiffs' damages in an amount in excess of the jurisdictional limits of this Court;
2. reasonabl e attorney's fees; 3. pre-judgmen t interest as allowed by law; 4. post-judgmen t interest as allowed by law; 5. al l costs of suits; and 6. suc h other and further relief to which Plaintiffs may be justly entitled.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 15 of 36
R
• R. WOODFILL jBar No.: 00788715
ITTALTON Bar No.: 19629800 River Oaks Green 3131 Eastside Street, Suite 450 Houston, Texas 77098 Telephone: 713-751-3080 Facsimile: 713-751-3058 Attorney for Jack Pidgeon and Larry Hicks, Plaintiffs
JONATHAN M. SAENZ State Bar No: 24041845 Texas Values 900 Congress, Ste 220 Austin, Texas 78701

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 16 of 36

STATE OF TEXAS

§

COUNTY OF HARRIS

5

BEFORE ME, the undersigned authority on this day personally appeared

JACK R, PIDGEON, who being by me duly sworn under oath stated as follows:

1. M y name is Jack R. Pidgeon, I am over eighteen (18) years of age, and am fully

competent to make this Affidavit ,

2. I have read paragraphs 1 to 10 of Plaintiff's Original Petition, Application fo r

Temporary Restraining Order, Application for Temporary Injunction, and Application fo r

Permanent Injunction, and I have personal knowledge of the factual allegations stated therein and

each of such factual allegation is true and correct

SUBSCRIBED AND SWORN TO BEFORE me on the fvtoi o certify which witness my hand and official seal of office .

f December 2013, to

Notary Public, State of Texas

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 17 of 36

VERIFICATION

STATE OF TEXAS

§

§

COUNTY OF HARRIS

§

BEFORE ME, the undersigned authority on this day personally appeared

LARRY HICKS, who being by me duly sworn under oath stated as follows:

1. My name is Larry Hicks. I am over eighteen (18) years of age, and am fully

competent to make this Affidavit

2. I have read paragraphs 1 to 10 of Plaintiffs' Original Petition, Application for

Temporary Restraining Order, Application for Temporary Injunction, and Application for

Permanent Injunction, and I have personal knowledge of the factual allegations stated therein and

each of such factual allegation is true and correct.

SUBSCRIBED AND SWORN TO BEFORE me on the / 7 day of December 2013, to certify which witness my hand and official seal of office.

My Commission Expires:

Notary Public, State of Texas f^jf^1 MM m

10

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 18 of 36

L Chris Daniel, District Clerk of Harris County, Texas certify mat this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this December 19. 2013

Certified Document Number

58775509

Chris Daniel DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordanc e wit h Texa s Governmen t Cod e 406.01 3 electronicall y transmitte d authenticate d documents a n valid . If ther e is a question regardin g the validity o f this documen t an d or seal plaasa e-mai l support@hcdistrictclerk.co m

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 19 of 36
EXHIBIT B

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 20 of 36

P-&
CAUSENO.AO ! 3 - ^ 3 O

JACK PIDGEON AND

§

LARRY HICKS,

§

PLAINTIFFS,

§

§

v.

§

§

MAYOR ANNISE PARKER AND

§

CITY OF HOUSTON,

§

DEFENDANTS.

§

IN THE DISTRICT COURT
HARRIS COUNTY, TEXAS
-a i ^ w 1 U JUDICIAL DISTRICT

ORDER ON PLAINTIFFS ' APPLICATION FO R TEMPORARY RESTRAININ G ORDE R

CAME ON FOR CONSIDERATION Jack Pidgeon and Larry Hicks ("Plaintiffs")

application for a Temporary Order, presented to the Court today. The Court examined the

pleadings of Plaintiffs, the evidence presented, and the argument of counsel, and afler due

consideration finds that: 1) a cause of action against the Defendants exists; flF 2) Plaintiffs have a probable right to the relief sought; and

FILED
* ChrtoDan M District Clark T 1 7 7flf 3
Time:
Harris count;

By

I Deputy

3) Plaintiffs will suffer a probable, imminent, and irreparable injury in the interim.

Therefore, Plaintiffs are entitled to a temporary injunction.

It is therefore ORDERED that the clerk of this Court issue a temporary injunction

enjoining Defendants, Mayor Annise Parker and the City of Houston ("Defendants") and any

other person(s) with knowledge of this Order, to cease and desist providing benefits to same-sex

spouses of employees that have been married in jurisdictions that recognize same-sex marriage

providing benefits to same sex couples. This order shall stand until further Order of this Court.

Plaintiffs have shown a probable injury because the harm is imminent; if the temporary

restraining order does not issue, the injury would be irreparable; and the applicant has not other

adequate legal remedy.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 21 of 36

If the temporary injunction is not issued, the Defendants' unlawful policy providing

benefits to same-sex spouses of employees that have been married in jurisdictions that recognize

same-sex marriage providing benefits to same sex couples will remain in place; therefore, the harm to Plaintiffs1 constitutional and statutory rights is imminent.

Plaintiffs' claims of statutory and constitutional injury and violation of the City of

Houston's Charter, present a substantial threat that irreparable injury would result if the

temporary restraining order does not issue.

Finally, Plaintiffs have no other adequate remedy at law because no amount of money

can compensate Plaintiffs for the loss of their constitutional and statutory rights. However,

Plaintiffs are not required to prove that they have no adequate remedy at law when they have a

statutory right to an temporary restraining order, as provided by sections 106.002(a) and

110.005(a)(2) of the Texas Civil Practice and Remedies Code.

This temporary injunction is effective immediately and shall continue in force and effect

until further order of this Court. This order shall be binding on Defendants, and any other

person(s) who receive actual notice of this order by personal service or otherwise.

IT IS FURTHER ORDERED that this temporary injunction be effective immediately and

the bond paid by Plaintiffs in the amount of $250.00 for each Defendant, $500.00 total payable

to Defendants will extend to this temporary injunction. The Clerk of this Court is hereby

ORDERED to issue citation and notice to Defendants, Mayor Annise Parker and the City of

Houston.

This cause is set for ^ on' ^ 3*0U ? UP^ \c \ $C (^ ojt 3''COOL/))

SIGNED on DE C 1 7 201 3 201 3 at m

.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 22 of 36

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 23 of 36
EXHIBIT C

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 24 of 36

Harris County Docket Sheet
2013-75301
COURT: 310t h FILED DATE: 12/17/201 3 CASE TYPE: OTHE R FAMILY
PIDGEON, JACK
Attorney: WOODFILL. JAREO RYKER V
VS.
PARKER, ANNISE

. Dat e 12/17/2013 12/17/2013 12/20/2013
12/20/2013

Docket Sheet Entries
Comment TRORX • ORDER SIGNE D GRANTING TEMPORARY RESTRAINING ORDE R
(Movant present/ R was noticed and FTA) M for TRO - legal argument presented • all relief requested granted per Order; Hearin g Is set for 1/6/14 at 9 am;
(CtRptr Clarisla Ramirez)(Both parties present thru counsel) City's M for Emergency Hearing - legal argument presented - denied/ M to Dissolve TRO - denied; Case set for hearing on 1/6/14 at 10 am • Ct requests Briefs be drafted by both parlies and submitted for the Ct for review on or before 12/30/14; (CtRptr Clarisia Ramirez)(8oth parties present thru counsel) City's M for Emergency Hearing - legal argument presented • denied/ M to Dissolve TRO • denied; Case set for hearing on 1/6/14 at 10 am - Ct requests Briefs be drafted by both parties and submitted for the Ct for review on or before 12/30/13;

2013-75301 310th

Pige 1 of 1 12/27/2013 10:06:2 3 AM

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 25 of 36

••uniy. - i m . i s . t l f y m i l

• ) ; • ! -n.:.iri J ,18 4 »n<\ at (9Corc«4

' Mi

» J»t#.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 26 of 36
EXHIBIT D

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 27 of 36

IN THE UNITED STATES DISTRICT COUR T FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISIO N

JACK PIDGEON and § LARRY HICKS, § Plaintiffs §
v. §
MAYOR ANNISE PARKER and § CITY OF HOUSTON § Defendants §

§ CIVI
§

L ACTION NO.

LIST OF ALL COUNSEL OF RECORD

1. Woodfil l La w Firm, PC Jared R. Woodfill Robert Talton River Oaks Green 3131 Eastside Street, Suite 450 Houston, Texas 77098 Telephone: 713-751-3080 Facsimile: 713-751-3058
Counsel for Jack Pidgeon and Larry Hicks
2. Texa s Values Jonathan M. Saenz 900 Congress, Suite 220 Austin, Texas 78701 Telephone: 512-478-2220 Facsimile: 512-478-2229
Counsel for Jack Pidgeon and Larry Hicks
3. Cit y of Houston Lega l Departmen t David M. Feldman Lynette K. Fons Judith L. Ramsey John B. Wallace

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 28 of 36
900 Bagby, 4th Floor Houston, Texas 77002 Telephone: 832.393-6438 Facsimile: 832.393-6259 Counsel for Mayor Annise Parker and The City of Houston

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 29 of 36
EXHIBIT E

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 30 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JACK PIDGEON and

§

000

LARRY HICKS,

Plaintiffs

000

000

V.

§

CIVIL ACTION NO .

000

000

000 000

MAYOR ANNISE PARKER and CITY OF HOUSTON
Defendants

INDEX OF DOCUMENTS BEING FILE D

Exhibit A: Plaintiffs' Original Petition, Application for Temporary Restraining Order, Application for Temporary Injunction, and Application for Permanent Injunction.

Exhibit B: Order on Plaintiffs' Application for Temporary Restraining Order.

Exhibit C: State Court Docket Sheet.

Exhibit D: A list of all counsel of record including addresses, telephone numbers and parties represented.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 31 of 36
EXHIBIT F

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 32 of 36

2013-75301/Court: 310
CITY OF HOUSTON
Legal Department

Interoffice
Correspondence

To: Oma r Reid
cc: Davi d M. Feldman City Attorney

From: Mayor Annise Parkeerr "^ Date: Novembe r 19,2013 Subject: Same-Sex Spousal Benefits

Attached is a legal opinio n fro m the City Attorney concluding that the City's prohibitio n against th e provisio n o f benefit s t o same-sex spouse s o f city employee s ma y n o longer be considered constitutionall y valid . A s a result, I am hereby directin g tha t same-se x spouse s of employees wh o have bee n legall y marrie d i n another jurisdiction b e afforde d th e same benefit s as spouses of a heterosexual marriage .

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 33 of 36

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this December 19. 2013

Certified Document Number:

58775510

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordanc e wit h Texa s Governmen t Cod e 406.01 3 electronicall y transmitte d authenticate d documents ar e valid . If ther e is a question regarding the validity o f this documen t an d o r seal please e-mai l support@hcdistrictclerk.co m

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 34 of 36

CITY OF HOUSTON
Legal Department

Interoffice
Correspondence

To: Mayor Annise D. Parker

From:

Feldman City Attorney

Date:

November 19,2013

Subject: Legal Opinion Regarding Same-Sex Spousal Benefits

ATTORNEY-CLIENT COMMUNICATIO N PRIVILEGED AND CONFIDENTIA L

A growing number of states have recognized same-sex marriage, causing the courts to give increasing attention to whether laws that do the opposite, and further discrimination based on sexual orientation, are unconstitutional. In light of this trend, and the requests by employees seeking benefits for same-sex spouses, you have asked me to review the City of Houston's authority to continue to deny benefits to same-sex spouses of employees that have been legally married in other jurisdictions, with a particular focus on the City Charter amendment of 2001, which has heretofore been relied on to prohibit the granting of such benefits.

The relevant City Charter provision, which was initiated by voter petition, reads as follows:
Except as required by State or Federal law, the City of Houston shall not provide employment benefits, including health care, to persons other than employees, their legal spouses and dependent children; nor shall the City provide any privilege in promotion, hiring, or contracting to a person or group on the basis of sexual preference, either by a vote of the city council or an executive order of the Mayor. Further, the City of Houston shall not require entities doing business with the City to have any of the above benefits or policies.

If any portion of this proposed Charter amendment is declared unlawful, then such portion shall be removed and the remainder of the Charter amendment will remain in effect. Any ordinance in conflict with this section of the Charter is hereby repealed and declared invalid. Article II, Section 22. (emphasis added.)

After reviewing relevant case law around the country and from the U.S. Supreme Court, I believe a court would now find that the continued application of Article II, Section 22 of the Houston City Charter to deny benefits to legally married same-sex spouses to be unconstitutional, primarily because it denies the employees of such spouses equal protection of the laws.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 35 of 36
Equal Protection
The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution provides that: "No State shall deny to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend XIV, §1. This prohibition applies with equal force to all governmental entities within the State of Texas, including the City of Houston, meaning that all persons similarly situated should, generally, be treated alike under the law. City of Cleburne, Tex. v. Cleburne Living Or., 473 U.S. 432,439 (1985); Plyler v. Doe, 457 U.S. 202, 216 (1982). In order to pass constitutional muster, the current application of the City Charter provision would have to survive rational basis review, at a minimum. In other words, there must be some rational connection between the discriminating law or policy in question and a legitimate governmental interest. See Perry v. Schwarzenegger, 704 F.Supp.2d 921, 1003 (N.D. Cal. 2010), off d sub nom., Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated by, Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) (holding initiative's proponents had no standing to appeal the district court's judgment for the same-sex couple plaintiffs, and therefore effectively reinstating the district court's holding finding California's prohibition against same-sex marriage unconstitutional under due process and equal protection analyses).
In 1996, the U. S. Supreme Court considered the constitutionality of an amendment to the Colorado Constitution; the amendment prohibited all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships." Romer v. Evans, 517 U.S. 620, 624 (1996). The Court held that the constitutional amendment failed for lack of a rational basis, finding that it could not be explained by "anything but animus toward the class if affects; it lacks a rational relationship to legitimate state interests." Romer at 632. Applying a similar test to the current application of Article II, section 22 of the City of Houston's charter yields a similar result: it seems not to further any governmental end, but simply makes homosexuals unequal to all other city employees. Application of the City of Houston's charter to deny benefits to legally married same-sex spouses arguably violates the Equal Protection Clause by treating employees differently on the basis of sexual orientation or sexual identity; that is, a female city employee may secure employment benefits for the husband she married in California, but a female city employee may not obtain the same benefits for a wife she married in California. The weight of recent court decisions would dictate that such a distinction does not serve a legitimate governmental interest.
The Supreme Court's DOMA ruling and its effect thus far
Significantly, after the U.S. Supreme Court struck down the federal Defense of Marriage Act (DOMA) in U.S. v. Windsor, 133 S.Ct. 2675; 2013 U.S. LEXIS 4935 (June 26, 2013), a number of federal agencies have announced that they will recognize same-sex marriages that were valid in the place of celebration, regardless where those couples now live. These agencies include the Office of Personnel Management, the U.S. Citizenship and Immigration Services, the Department of Defense, and the Federal Election Commission. In addition, the Internal Revenue Service issued an announcement on August 29th, stating that all legally married same-sex couples will be recognized as married for federal tax purposes, even if those couples reside in states that do not recognize same-sex marriage.

Case 4:13-cv-03768 Document 1 Filed in TXSD on 12/27/13 Page 36 of 36
Texas DOMA
Although the U.S. Supreme Court struck down the federal Defense of Marriage Act's definition of marriage as a union between a man and a woman, the Court did not deprive individual states of the right to maintain their own definitions of marriage. Texas has done so in its contribution (Tex. Const. Art. I, Sec. 32), and has its own version of DOMA—a statute that prohibits political subdivisions of the state from giving effect to:
1. A 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 any other jurisdiction; or
2. 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 any jurisdiction.
Tex. Fam. Code § 6.204.
This law has been challenged as unconstitutional, and while some courts have found it to be constitutional, others have found it to be constitutionally infirm. The Texas Supreme Court has an opportunity to rule on this law this term, but it may choose to decide the two pending cases on much narrower grounds. In re Marriage ofJ.B. andH.B., (Tex. App. - Dallas 2010, pet. granted) 326 S.W. 3d 645; State v. Naylor 330 S.W.3d 434, (Tex. App. - Austin 2011, pet. granted). (Both cases involve same-sex couples who were married in other states and wish to be divorced in Texas.) While state law is significant authority for the City of Houston, the City could still face liability for complying with a law that is unconstitutional, or would cause it to apply its own laws in an unconstitutional manner.
Conclusion and Recommendation
In conclusion, it is my legal opinion that the City of Houston may extend benefits to legally married same-sex spouses on the same terms it extends benefits to heterosexual spouses. To apply Article II, section 22 of the City Charter differently would, based on my review of all relevant federal authority, be unconstitutional. Therefore, I recommend you give serious consideration to directing the Human Resources Department to offer benefits to same-sex spouses of city employees who were lawfully married in a state that recognizes same-sex marriage.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JACK PIDGEON and LARRY HICKS,
Plaintiffs,
v.
MAYOR ANNISE PARKER and CITY OF HOUSTON,
Defendants.

§ § § § § CIVIL ACTION NO. H-13-3768 § § § § §

MEMORANDUM AND ORDER In November 2013, Annise Parker, the Mayor of the City of Houston, directed the City’s Human Resources Department to make the City’semployment-benefits program available to samesex spouses of City of Houston em ployees. The plaintiffs, Jack Pidgeon and Larry Hicks, who identify themselves as Houston residents and taxpayers, opposed this decision. On December 17, 2013, Pidgeon and Hicks sued Parker and the City of Houston in the Harris County, Texas family law court, seeking temporary and permanent injunctions preventing the defendants from providing such benefits. The family law court judge promptly issued a TRO. Shortly before it expired, the defendants removed to federal court,asserting federal-question jurisdiction.1 (Docket Entry No. 1, amended as Docket Entry No. 22). The plaintiffs moved to remand. (Docket Entry No. 11). The motion to remand does not turn on the substantive issue of whether the United States Constitution requires state law to recognize sam e-sex marriages and grant related benefits. The

1 The defendants’ original notice of removal (Docket Entry No. 1) stated that the case was removed on the basis of 28 U.S.C. §§ 1441(a) and 1443. In an amended notice of removal (Docket Entry No. 22), the defendants clarified that the basis for removal was only 28 U.S.C. § 1441(a).
1

issue is instead straight out of alaw school federal courts class. The issue is whether this court has
federal subject-matter jurisdiction necessary to decide the substantive issue. The complaint filed in
state court does not raise a claim under, or refer to, federal law. Instead, the complaint alleges that
Mayor Parker’s directive and its implementation violate Section 6.024 of the Texas Family Code;
Article II, Section 22 of the Houston City Ch arter; and Article 1, Section 32 of the Texas
Constitution. The defendants argue that re moval is proper under 28 U.S.C. § 1441(a) because
Section 22 of the Houston City Charter refers to federal law, and because the plaintiffs’ claim s
necessarily raise a substantial federal question. The plaintiffs deny that the federal law re ference
in the City Charter is sufficient to establish jurisdiction or that the complaint otherwise necessarily
raises federal issues. The plaintiffs nonetheless moved to amend their complaint to delete the claim
based on the Houston City Charter. (Docket Entry No. 27). The defendants opposed this motion.
(Docket Entry No. 32). This court held a hearing on the motions and heard argument.2
Since the motions were filed, many courts, including in Texas, have ruled on the underlying
substantive issues.3 Many speculate that the United States Supreme Court will ultimately resolve
2 Other pending m otions seek leave to file an am icus brief in support of the plaintiff s’ motion to remand (Docket Entry No. 25), to intervene (Docket Entry No. 9, supplemented by Docket Entry No. 20), and to consolidate t his case with another case pending before the Southern District of Texas, Houston Division, Freeman v. Parker, No. 4:13-cv-03755 (Docket Entry No. 21).
3 Numerous federal courts haveconsidered the constitutionalityof statebans on same-sex marriages. In all of these cases, the federal c ourts found the bans unco nstitutional. See, e.g., Brenner v. Scott , No. 4:14CV107-RH/CAS, 2014 WL 4113100(N.D. Fla. Aug. 21, 2014);Bowling v. Pence, No. 1:14-CV-00405RLY, 2014 WL 4104814 (S.D. Ind. Aug. 19, 2014); Burns v. Hickenlooper, No. 14-CV-01817-RM-KLM, 2014 WL 3634834 (D. Colo. July 23, 2014) (granting a pr eliminary injunction enjoining enfo rcement of Colorado’s ban); Love v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky . 2014); Baskin v. Bogan, No. 1:14-CV00355-RLY, 2014 WL 2884868 (S.D. Ind. June 25, 2014);Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014); Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014); Evans v. Utah, No. 2:14CV55DAK, 2014 WL 2048343 (D. Utah May 19, 2014) (granting a preliminary injunction enjoining enforcement of Utah’s ban); Geiger v. Kitzhaber , No. 6:13-CV-01834-MC, 2014 WL 2054 264 (D. Or. May 19, 2014); Latta v. Otter, No. 1:13-CV-00482-CWD, 2014 WL 1909999 (D. Idaho May13, 2014); Henry v. Himes, No. 1:14CV-129, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014); Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va.
2

them. But the remand motion does not turn on thosedevelopments and will not afect them. Indeed,
the underlying substantive issues are raised in another case in which the plaintiffs challenge the
constitutionality of the City of Houston’s withdrawal of employment benefits to same-sex spouses
after a Texas family court enjoined the City fromproviding such benefits.Freeman v. Parker, (Case
No. 4:13-cv-03755), was filed in the federal courtand is currently pending before another judge in
the Southern District of Texas, Houston Division. The substantive issues are likely to be decided,
in a federal forum, regardless of this remand.
Long-standing principles of federal jurisdiction drive the analysis and result. Based on the
amended notice of removal; the state-court petition;the motion to remand, response, reply, and sur-
reply; the governing law; and the arguments of counsel, the court concludes that it does not have
jurisdiction over this case. The motion to remand is therefore granted.
2014); DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014); Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525 (M.D. Tenn. Mar.14, 2014) (granting a preliminary injunction enjoining the enforcement of Tennessee’s ban); De Leon v. Perry, 975 F. Supp. 2d 632,662 (W.D. Tex. 2014); Lee v. Orr, No. 13-CV8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014)B; ourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014);Bishop v. U.S. ex rel. Holde,r962 F. Supp. 2d 1252(N.D. Okla. 2014); Obergefell v. Wymslo, 962 F. Supp. 2d 968(S.D. Ohio 2013); Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013).
Several appellate courts have upheld these rulings. See, e.g., Bostic v. Schaefer, 14-1167, 2014 WL 3702493 (4th Cir. July28, 2014);Bishop v. Smith, No. 14-5003, 2014 WL 3537847 (10th Cir. July18, 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014). A number of state courts have also ruled on challenges to their state’s laws banning the recognition of sam e-sex marriages. See, e.g., In re Marriage of Heather Brassner, 21 Fla. L. Weekly Supp. 920a (Fla. 17th Cir. Ct. Aug. 4, 2014); Pareto v. Ruvin, 21 Fla. L. Weekly Supp. 899a (Fla. 11th Cir.Ct. July 25, 2014); Huntsman v. Heavilin, 21 Fla. L. Weekly Supp. 916a (Fla. 16th Cir. Ct. July 17, 2014); M. Kendall Wright et al. v. State of Arkansas, et al., No. 60CV-13-2662 (Ark. Pulaski Co. Cir. Ct. May 9, 2014); Brinkman et al. v. State of Colorado et al., No. 13-CV-32572 (Colo. Dist. Ct. July 9, 2014); Garden State Equal. v. Dow, 434 N.J. Super. 163, 82 A.3d 336 (N.J. Super. Ct. Ch. Div. 2013); Griego v. Oliver, No. 2014-NMSC-003, 316 P.3d 865 (N.M. 2013) (ruling based on New Mexico Constitution).
Cases challenging the constitutionality of the Texas Defense of Marriage Act include De Leon v. Perry, 975 F. Supp. 2d 632, 662 (W.D. Tex. 2014) (finding the law, as well as Section I, Article 32 of the Texas Constitution, to be a violation of the Fourteenth Amendment); A.L.F.L. v. K.L.L., No. 2014-CI-02421, (438th Dist. Ct., Bexar County, Tex. April 22, 2014). The issue is currently before the Court of Appeals for the Fifth Circuit. See De Leon v. Perry, No. 14-50196 (appeal from De Leon v. Perry, 975 F. Supp. 2d 632, 662 (W.D. Tex. 2014)).
3

The pla intiffs also sought their attorneys’ fees and costs, asserting that rem oval was wrongful. This m otion is denied, because there were clearly colorable grounds to rem ove. The remaining pending motions, seeking to amend the complaint, to file an amicus brief, to intervene, and to consolidate, are denied as moot.
The reasons for these rulings are explained below. I. Background
The City of Houston’s Charter states in Article II, Section 22 that “[e]xcept as required by State or Federal law, the City of Houston shall not provide employment benefits, including health care, to persons other than employees, their legal spouses and dependent children.” Texas does not recognize same-sex marriage. The Texas Defense of Marriage Act, contained in Section 6.204(c) of the Texas Family Code, prohibits political subdivisions in Texas from giving effect to a “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 any jurisdiction.” Before November 2013, the defendants interpreted the Houston City Charter and the Texas Family Code as requiring them to deny benefits to same-sex spouses of City of Houston employees who were legally married in states where same-sex marriage was recognized.
In United States v. Windsor , 570 U.S. ____, 133 S.Ct. 2675 (2013) , the Suprem e Court examined the constitutionality of the federal Defense of Marriage Act, which defined marriage for federal-law purposes as limited to unions betweena man and a woman and denied same-sex couples, including those legally married in a state in which same-sex marriage was recognized, the federal benefits and protections granted to heterosexua l married couples. The Suprem e Court held that Section 3 of the federal Defense of Marraige Act violated the Fifth Amendment. Windsor, 133 S.Ct.
4

at 2695. The Court recognized that the federal DOMA “depart[ed] from [a] history and tradition of reliance on state law to define marriage.” Windsor, 133 S.Ct. at 2692.
Parker asked the City Attorney for legal advice on whether Windsor required the City to extend benefits to same-sex spouses of City employees married in states recognizing such unions. On November 19, 2013, the City Attorney issued alegal opinion finding “the continued application of Article II, Section 22 of the Houston City Charter to deny benefits to legally married same-sex spouses to be unconstitutional, prim arily because it denies the e mployees of such spouses equal protection of the laws.” (Doc ket Ent ry No. 1, E xhibit F). Parker directed the City’s Hum an Resources Department to begin enrolling the same-sex spouses of City of Houston employees in the City’s employment-benefits program.
The plaintiffs sued, alleging that Parker’s directive and its implementation violate Section 6.024 of the Texas Family Code, Article II, Section 22 of the Houston City Charter, and Article 1, Section 32 of the Texas Constitution. Shortly af ter the fam ily law court issued a TRO, the defendants timely removed to federal court. (Docket Entry No. 1). The plaintiffs moved to remand, arguing that their claims were based on state law, not on any federal statute or on the United States Constitution, and that this court lacked jurisdicti on to do anything but return the c ase to the state court. (Docket Entry No. 11).
The defendants assert that this court has jurisdiction under 28 U.S.C. § 1331, which gives federal district courts “original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.” The defendant s argue that the “plaintiffs have [] invoked t he federal question jurisdiction of this court by their pleading,” which allege s that the defendants violated a section ofthe Houston City Charter that reefrs to federal law, and which necessarily raises
5

substantial federal questions of due process and equal protection under the United States Constitution. (Docket Entry No. 22 at 5; No. 26 at 13). II. Analysis
A. The Legal Standard for Federal-Question Removal Jurisdiction Federal court jurisdiction is limited by the Constitution and federal statues. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citingWilly v. Coastal Corp., 503 U.S. 131, 136–137 (1992); Bender v. Williamsport Area School Dist. , 475 U.S. 534, 541 (1986); and American Fire & Casualty Co. v. Finn, 341 U.S. 6 (1951));Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372 (1978) (“the jurisdiction of the fdeeral courts is limited not only by the provisions of Art. III of the Constitution, butalso by Acts of Congress.”). These limits, based on respect both for other branches of government and for the statecourts, must be respected. Without subject-matter jurisdiction, a federal court simply has no authorityto decide the case. Because the removing party is the one invoking federal jurisdiction, it has the burden of provi ng that federal jurisdiction is present to defeat a motion to remand. Manguno v. Prudential Prop. & Cas. Ins. Co.,276 F.3d 720, 723 (5th Cir. 2002) (citingWilly v. Coastal Corp.,855 F.2d 1160, 1164 (5th Cir. 1988)a, ppeal after remand, 915 F.2d 965 (5th Cir. 1990), aff’d, 503 U.S. 131 (1992)); Delgado v. Shell Oil Co., 231 F.3d 165, 178 n. 25 (5 th Cir. 2000); see also Coury v. Prot , 85 F.3d 244, 248 (5th Cir. 1996) (“[T]here is a presum ption against subj ect matter jurisdiction that m ust be rebutted by the party bringing an action to federal court.”). To determine whether federal jurisdiction exists, the court looks to the record in the s tate court at the time of removal. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289–90 (1938); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995). As a general
6

matter, pleading amendments after removal can neither create federal jurisdiction that did not exist

when the action was rem oved nor strip federal jurisdiction that did exist. Hazel Bishop, Inc. v.

Perfemme, Inc., 314 F.2d 399 (2d Cir. 1963) (“A subsequent am endment to the complaint after

removal designed to elim inate the federal claim will not defeat federal jurisdiction.”) (cit ing

Westmoreland Hosp. Ass ’n v. Blue Cross of W. Penn. , 605 F.2d 119, 123 (3d Cir. 1979), cert.

denied, 444 U.S. 1077 (1980)). Because removal jurisdiction raises significant federalismconcerns,

Beiser v. Weyler, 284 F.3d 665, 672 (5th Cir. 2002), any “ambiguities are to be construed against

removal.” Manguno, 276 F.3d at 723; De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.

1995).

Whether a cause of action presents a federal question depends on the alle gations in a

plaintiff’s complaint. Louisville & Nashville R.R. Co. v. Mottley,211 U.S. 149, 152 (1908). Federal-

question jurisdiction exists “only when the plaintiff’s well-pleaded complaint raises issues of federal

law.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987) (citing Gully v. First Nat’l Bank, 299

U.S. 109 (1936)). “To satisfy the rule, the plaintiff’s well-pleaded complaint must exhibit, within

its four corners, either an explicit federal cause of action or a state-law causeof action that contains

an em bedded question of federal law that is both substantial and disputed.”

Rhode Island

Fishermen’s Alliance, Inc. v. Rhode Island Dep’t Of Envtl. Mgmt., 585 F.3d 42, 48 (1st Cir. 2009)

(citing Louisville & Nashville R.R. Co, 211 U.S. at 152 and W. 14th St. Comm’l Corp. v. 5 W. 14th

Owners Corp., 815 F.2d 188, 193 (2d Cir. 1987)). If the complaint raises no issue of federal law,

either explicitly or embedded, federal question jurisdiction is lackingH. art v. Bayer Corp,. 199 F.3d

239, 243 (5th Cir. 2000) (citing Franchise Tax Bd. v. Laborers Vacation Trust , 463 U.S. 1, 10

(1983)).

7

B. Analysis The com plaint asserted claim s for violati ons of the Texas Fa mily Code, the Texas Constitution, and the Houston City Charter. The plaintiffs did not frame their allegations in terms of federal law. Nor do they rely on any federal law to raise or sustain their claim s. Their claims make “no explicit m ention of any spec ific statute or regulation” under federal law. Howery v. Allstate Ins. Co, 243 F.3d 912, 918 (5th Cir. 2001). The defendants argue that substantial and disputed federal questions are em bedded in the plaintiffs’ claims. The defendants assert that to enforce the Houston City Charter as the City did before November 2013 would violate federal constitutional law as interpreted by the SupreemCourt of the United States. They argue that their decsiion to begin offering employment benefits to samesex spouses of City of Houston em ployees was based on, and requi red by, the Suprem e Court’s decision in Windsor, 133 S.Ct. 2675. The argum ent is that unless the City im plements Parker’s directive, the City will be violating the Equal Protection Clause of the United States Constitution. Whether the defendants’ argument is right is a substantive issue of federal constitutional law. The problem with their argument in the context of the law governing federal jurisdiction is that it raises a federal-law defense to a state-law causeof action. The Supreme Court has consistently held that a federal defense to a state-law claimcannot confer federal jurisdiction, even when that federal defense is clearly anticipated and even when the plaintiffs themselves refer to the defense in their complaint. See Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 6 (2003); Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986); Franchise Tax Bd., 463 U.S. at 12; Louisville & Nashville R.R. Co. , 211 U.S. at 152. “Although such allegations show that very likely, in the course of litigation, a question under the Constitution would arise, they do not show that the suit, that is, the
8

plaintiff’s original cause of action, arises under the Constitution.” Louisville & Nashville R.R. Co., 211 U.S. at 152.
The Supreme Court has told federal district courts for over a century that raising a federal defense to a state-court complaint that alleges only state-law claims, even when it is obvious to all that the federal defense will be raised and must be decided, is not enough to give a federal court subject-matter jurisdiction. Instead, any issue of federal law must be “an element, and an essential one, of the plaintiff’s cause of action.” Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 (5th Cir. 2003). “[A]n asserted or anticipated defense pred icated on federal preemption of state law is, in jurisdictional terms, a defense like any other, and will not serve to invoke fede ral jurisdiction.” Powers v. S. Cent. United Food & Commercial Workers Unions & Employers Health & Wel fare Trust, 719 F.2d 760, 764 (5th Cir. 1983) (citing Franchise Tax Board 103 S.Ct at 2847). See also State of Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 464, 14 S. Ct. 654, 657, 38 L. Ed. 511 (1894) (“by the settled law of this court, as appears from the decisions above cited, a suggestion of one party that the other will or may set up a claim under the constitution or laws of the United States does not make the suit one arising under that constitution or those laws.”) (quoting Carpenter v. Wichita Falls Ind. School Dist., 44 F.3d 362, 366 (5th Cir. 1995).
The fact that the plaintiffs asserted a claim under Article II, Section 22 of the Houston City Charter, which contains a clause describing the Myaor’s obligation to comply with federal law, does not transform the defense into an element of the plaintiffs’ claims. References to federal law or to the United States Constitution in a plaintiff’s complaint do not, on their own, createefderal-question jurisdiction. See, e.g., Walter v. Old Am. Cnty. Mut. Fire Ins. Co, .No. Civ. A. H-12-2581, 2012 WL 5818227 (S.D. Tex. Nov. 14, 2012) (“A vague reference to ‘the Constitution’ does not establish
9

federal-question jurisdiction.”); Maguire v. Telcom Global Solutions, Inc., No. Civ. A. 3:02-CV1728-G, 2003 WL 124475 (N.D. Tex. Jan. 10, 2003) (“M‘[ ]ere reference to the Federal Constitution, laws or treaties [is] not adequate to disclose a federal question.’ ” (second alteration in original) (quoting Ashley v. Sw. Bell Tel. Co., 410 F. Supp. 1389, 1392 (W.D. Tex. 1976)). A state entity’s explicit or implicit obligation to act consistently with federal law does not grant federal-question jurisdiction or transf orm the dispute over whether the entity com plied with f ederal law into an element of the plaintiff’s state-law claims. See Gully v. First Nat. Bank, 299 U.S. 109, 115 (1936) (“True, the tax, though assessed through the action of the state, must be consistent with the federal statute consenting, subject to restrictions, t hat such assessments may be m ade.... It m ust also be consistent with the Constitution of the United States.... That there is a federal law permitting such taxation does not change the basis of the suit, which is still the statute of the state”). Although the Houston City Charter refers generally to “federal law,” it is clear that the claim that the Mayor’s directive violates the Houston City Charter does notrequire the plaintiffs to prove compliance with federal constitutional law as interpreted by the United States Supreme Court to assert a plausible claim.
Because the federal-law issue is not raised by the plaintiffs’ com plaint, and is instead asserted as a defense, it is not necessary to examine whether that federal issue presents a substantial and disputed question analyzed under the factors described in Grable & Sons Metal Products v. Darue Engineering & Mfg., 545 U.S. 308, 314 (2005), and Singh v. Duane Morris LLP, 538 F.3d 334 (5th Cir. 2008). That analysis a pplies onl y “in cases in which a well-pleaded com plaint establishes ... that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.”Franchise Tax Bd., 463 U.S. at 27–28 (1983);Singh v. Duane Morris LLP,
P:\CASES\2013\13-3768\13-3768.a07.wpd

538 F.3d 334, 337–38 (5th Cir. 2008). This court does not have rem oval jurisdiction over the plaintiffs’ claim s under 28 U.S.C.
§1441(a). Remand is required. III. The Motion for Fees
The plaintiffs also ask for an award of attorneys’ fees and costs under 28 U.S.C. § 1447(c). That section states, in part, “[a]n order remanding the case may require payment of just costs and any actual expenses, including a ttorney fees, in curred as a result of the rem oval.” Although § 1447(c) perm its an award of attorneys’ fees, it provides little guidance on when such fees are warranted. In Martin v. Franklin Capital Corp., 546 U.S. 132 (2005), the Supreme Court provided the standard for awarding attorneys’ fees when a motion to remand is granted.
In Martin, the Supreme Court noted that an award of attorneys’ fees is not mandatory and that there is no strong pres umption in favor of or against an award. The Court stated that “... the standard for awarding attorney’s fees should turn on the reasonableness of the removal,” and that “[a]bsent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively r easonable basis exists, fees should be denied.” Martin, 546 U.S. at 141 (citing Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541 (5th Cir. 2004)V; aldes v. WalMart Stores, Inc,. 199 F.3d 290, 293 (5th Cir. 2000)). The defendants’ m otive in removing is not c onsidered. The issue is whether the defendants had an objectively reasonable basis for the rem oval. Yount v. Lafayette Ins. Co., 234 Fed. App’x. 245 (5th Cir. 2007) (citing Valdes, 199 F.3d at 292).
The defendants had an objectively reasonable basis for removal. The defendants presented a well-researched brief that deserved, and received, close study. The request for attorneys’ fees
P:\CASES\2013\13-3768\13-3768.a07.wpd

under § 1447(c) is denied. IV. Conclusion
The plaintiffs’ motion for remand (Docket EntryNo. 11) is granted. The request for fees and costs is denied. This case is remanded to the 310thJudicial District Court of Harris County, Texas. The motions for leave to file an amicus brief, to intervene, and to consolidate cases are denied as moot.
SIGNED on August 28, 2014, at Houston, Texas. ______________________________________ Lee H. Rosenthal United States District Judge
P:\CASES\2013\13-3768\13-3768.a07.wpd

 
 Harris County Docket Sheet
2014-61812
COURT: 310th FILED DATE: 10/22/2014 CASE TYPE: OTHER FAMILY

PIDGEON, JACK
Attorney: WOODFILL, JARED RYKER V
vs. PARKER, ANNISE
Attorney: RAMSEY, JUDITH LEE

Date
10/31/2014 11/5/2014 11/5/2014 11/5/2014 11/5/2014 11/5/2014
5/26/2016 6/2/2016 9/15/2016 9/19/2016 12/5/2016 12/12/2016 10/2/2017

Docket Sheet Entries Comment
CASO - ORDER SIGNED SETTING HEARING
STPRY - ORDER SGND DENYING STAY OF PROCEEDINGS
PJURY - ORDER SIGNED DENYING PLEA TO JURISDICTION
TINJX - ORDER SIGNED GRANTING TEMPORARY INJUNCTION
DCORX - DOCKET CONTROL/PRETRIAL ORDER SIGNED
(CtRptr)(Both parties present thru counsel) Supp Plea to the Jurisdiction - legal argument presented - denied per Order; M to Stay - legal argument presented - denied per Order; M for Temp Orders - Ct hereby grants Temp Inj. and all relief requested thereon granted per Order; Pre-trial conference: no appearance; case dismissed.
3 - DISMISSED FOR WANT OF PROSECUTION
MOTION TO REINSTATE; ATTY FOR BOTH PTY PRESENT. MOTION TO REINSTATE GRANTED.
1X - REINSTATEMENT ON COURT ORDER
TRIAL ON THE MERITS: PARKER ATTY PRESENT. P'S ATTY FTA. MOTION FOR CONTINUANCE GRANTED PER ORDER. TO MILLARD FOR SIGNATURE. CONTX - ORDER SIGNED GRANTING CONTINUANCE
Trial reset per Judge Millard.

2014-61812 310

Page 1 of 1 8/17/2018 11:30:04 AM

 
 CertifiedDocumentNumber:63180242-Page1of3

CertifiedDocumentNumber:63180242-Page2of3

CertifiedDocumentNumber:63180242-Page3of3

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this August 17, 2018

Certified Document Number:

63180242 Total Pages: 3

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

 
 Reversed and Remanded and Per Curiam Opinion filed July 28, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00899-CV NO. 14-14-00932-CV
MAYOR ANNISE PARKER AND CITY OF HOUSTON, Appellants V.
JACK PIDGEON AND LARRY HICKS, Appellees On Appeal from the 310th District Court Harris County, Texas Trial Court Cause No. 2014-61812 PER CURIAM OPINION
Appellees Jack Pidgeon and Larry Hicks (collectively, Appellees) sued to enjoin Mayor Annise Parker and the City of Houston (collectively, the City) from providing employee benefits to the same-sex spouses of employees legally married in another state. Appellees relied on provisions of the Texas Constitution and Family Code banning recognition of same-sex marriage in Texas, declaring same-

sex marriages against public policy and void, and prohibiting political subdivisions
from giving effect to same-sex marriages from other states. See Tex. Const. art. I,
§ 32; Tex. Fam. Code § 6.204. The trial court signed a temporary injunction requested by the Appellees,1 determining that:
4. Spending funds in that manner will recognize a union between two people of the same sex as a status identical to the Texas Constitution’s definition of marriage. That expenditure is thus barred by the Texas Constitution. 5. Spending funds in that manner recognizes and validates a marriage between persons of the same sex. That expenditure is thus barred by the Family Code. 6. Spending funds in that manner gives effect to a right or claim to benefits asserted as the result of a marriage between persons of the same sex. That expenditure is thus barred by the Family Code. 7. Spending funds in that manner will furnish employment benefits to persons who are not an employee’s legal spouse or dependent children. That expenditure is thus barred by the City’s charter. Thus, the trial court concluded that “[t]he City is prohibited from furnishing
benefits to persons who are married in other jurisdictions to City employees of the
same sex.”
In light of recent decisions from the United States Supreme Court and the United States Court of Appeals for the Fifth Circuit,2 we conclude that we must
reverse the trial court’s injunction. In Obergefell, the United States Supreme Court
determined that “same sex couples may exercise their fundamental right to marry
1 The City challenged Appellees’ standing to sue. Appellees’ pleading that they are residents of Houston, Texas, Harris County, and “taxpayer[s] . . . residing within the boundaries of the City of Houston and Defendants are expending significant public funds on an illegal activity,” construed liberally, supports Appellees’ standing to sue as taxpayers without showing a particularized injury. See Lone Star Coll. Sys. v. Immigration Reform Coal. of Tex. (IRCOT), 418 S.W.3d 263, 267–68, 274 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (op. on reh’g).
2 See Obergefell v. Hodges, 135 S. Ct. 2584 (2015); DeLeon v. Abbott, No. 14-50196, — F.3d—, 2015 WL 4032161 (5th Cir. July 1, 2015).
2

in all States.” Obergefell, 135 S. Ct. 2584, 2604–05, 2607 (2015). The United States Supreme Court held that “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” Id. at 2607–08. Further, in DeLeon, a federal district court found that article I, section 32 of the Texas Constitution and Texas Family Code section 6.204 are unconstitutional and enjoined the State of Texas from enforcing them; the United States Court of Appeals for the Fifth Circuit affirmed the trial court’s determination in light of Obergefell. DeLeon, No. 14-50196, — F.3d—, 2015 WL 4032161, at **1–2 (5th Cir. July 1, 2015).
Because of the substantial change in the law regarding same-sex marriage since the temporary injunction was signed,3 we reverse the trial court’s temporary injunction and remand for proceedings consistent with Obergefell and DeLeon.
PER CURIAM
Panel consists of Justices Boyce, McCally, and Donovan.
3 We have broad discretion to remand a case in the interest of justice after reversing the trial court’s judgment. See Tex. R. App. P. 43.3(b); Ahmed v. Ahmed, 261 S.W.3d 190, 196 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.). We may exercise our discretion to remand as long as there is a probability that the case, for any reason, has not been fully developed. See Ahmed, 261 S.W.3d at 196.
3

 
 IN THE SUPREME COURT OF TEXAS
══════════ No. 15-0688
══════════
JACK PIDGEON AND LARRY HICKS, PETITIONERS,
v.
MAYOR SYLVESTER TURNER AND CITY OF HOUSTON, RESPONDENTS
══════════════════════════════════════════ ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS ══════════════════════════════════════════
Argued March 1, 2017 JUSTICE BOYD delivered the opinion of the Court. The trial court denied the City of Houston’s and its Mayor’s pleas to the jurisdiction and issued a temporary injunction prohibiting them from “furnishing benefits to persons who were married in other jurisdictions to City employees of the same sex.” While their interlocutory appeal was pending in the court of appeals, the United States Supreme Court held that states may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Obergefell v. Hodges, — U.S. —, 135 S. Ct. 2584, 2605 (2015). The court of appeals then reversed the temporary injunction and remanded the case to the trial court for further proceedings. Petitioners Jack Pidgeon and Larry Hicks contend that the court’s opinion and judgment impose—or at least can be read to impose—greater restrictions on remand than Obergefell and this Court’s precedent require. We agree. We reverse the court of appeals’ judgment, vacate the

trial court’s orders, and remand the case to the trial court for further proceedings consistent with our opinion and judgment.
I. Background The “annals of human history reveal the transcendent importance of marriage.” Obergefell, 135 S. Ct. at 2593–94. “Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together.” Id. at 2594. For thousands of years, both the role of marriage and its importance to society were founded on the “understanding that marriage is a union between two persons of the opposite sex.” Id. Until only recently, “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.” United States v. Windsor, — U.S. —, 133 S. Ct. 2675, 2689 (2013). While “most people” have shared that view, others have not. In the early 1970s, for example, two men obtained a Texas marriage license when one of them appeared before the county clerk dressed as a woman. See James W. Harper & George M. Clifton, Comment, Heterosexuality; A Prerequisite to Marriage in Texas?, 14 S. TEX. L.J. 220, 220 (1972–73). In response, the Texas Legislature amended the Texas Family Code to expressly provide that a marriage license “may not be issued for the marriage of persons of the same sex.” See Act of June 15, 1973, 63rd Leg., R.S., ch. 577, § 1, 1973 Tex. Gen. Laws 1596, 1596–97 (amending former Texas Family Code section
2

1.01). Texas thus became the second state in the Union1 to adopt what is often referred to as a
“defense of marriage act” (DOMA).2
In response to early lawsuits, courts throughout the United States consistently rejected legal
challenges to the historical understanding of marriage.3 Beginning in the 1990s, many other states
and the federal government4 enacted DOMAs to amend their statutes5—and in some states, their
constitutions6—to preserve the traditional view of marriage. Around the same time, however, other
1 A few weeks earlier in 1973, Maryland adopted a statute providing that “[o]nly a marriage between a man and a woman is valid in this state.” See 1973 Md. Laws 574 (enacting former MD. CODE art. 62, § 1 (1973)).
2 For simplicity’s sake, we use the acronym DOMA to refer generically to legislation intended to limit marriage to one man and one woman or otherwise defend or promote that historical view. In actuality, the laws we refer to as DOMAs include a variety of provisions and address the subject in different ways.
3 See, e.g., Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) (holding federal statute limited marriage to one man and one woman and did not violate federal constitution); Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) (holding D.C. statute did not authorize same-sex marriage and did not violate federal constitution); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. 1973) (holding state statute limited marriage to “the union of a man and a woman” and did not violate federal constitution); Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971) (holding state statute limited marriage to two persons of the opposite sex and did not violate federal constitution), appeal dism’d, 409 U.S. 810, 810 (1972) (dismissing appeal “for want of a substantial federal question”); Anonymous v. Anonymous, 325 N.Y.S.2d 499, 500 (1971) (“The law makes no provision for a ‘marriage’ between persons of the same sex.”).
4 Congress passed the federal Defense of Marriage Act in 1996, and then-President Clinton signed it into law. See Pub. L. No. 104-199, Sept. 21, 1996, 110 Stat. 2419. The federal DOMA had two key sections. First, it provided that no state “shall be required to give effect to” any other state’s legal recognition of “a relationship between persons of the same sex that is treated as a marriage” or “a right or claim arising from such relationship.” Id. § 2(a) (codified at 28 U.S.C. § 1738C (1996)). Second, it provided that when used in any federal law, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Id. § 3(a) (codified at 1 U.S.C. § 7 (1996)).
5 See, e.g., ALA. CODE § 30-1-19 (1998); ALASKA STAT. § 25.05.013 (1996); ARIZ. REV. STAT. § 25-101(C) (1996); ARK. CODE § 9-11-109 (1997); CAL. FAM. CODE § 300 (1992); COLO. REV. STAT. § 14-2-104(1)(b) (2000); FLA. STAT. §§ 741.04(1), .212 (1997); GA. CODE § 19-3-3.1 (1996); HAW. REV. STAT. § 572-1 (1985); IND. CODE § 31-11-1-1 (1997); IOWA CODE § 595.2(1) (1998); KAN. STAT. §§ 23-2501, -2508 (1996); KY. REV. STAT. §§ 402.005, .020(1)(d), .040, .045 (1998); LA. CIV. CODE arts. 89, 3520(B) (1999); MICH. COMP. LAWS § 551.1 (1996); MISS. CODE. § 93-1-1(2) (1997); MO. ANN. STAT. § 451.022(2), (3) (1996); MONT. CODE § 40-1-401(1)(d) (1997); N.C. GEN. STAT. §§ 51-1, -1.2 (1995); N.D. CENT. CODE §§ 14-03-01, -08 (1997); OHIO REV. CODE § 3101.01 (2004); OKLA. STAT. tit. 43, § 3.1 (1997); 23 PA. CONS. STAT. § 1704 (1996); S.C. CODE § 20-1-15 (1996); S.D. CODIFIED LAWS § 25-1-1 (1996); TENN. CODE § 36-3-113 (1996); UTAH CODE §§ 30-1-2(5) (1977), -4.1 (2004); VA. CODE § 20-45.2 (1997); W. VA. CODE § 48-2-603 (2001); WYO. STAT. § 20-1-101 (1977).
6 Twenty-three states passed constitutional amendments in addition to statutory provisions. See ALA. CONST. art. I, § 36.03; ALASKA CONST. art. I, § 25; ARIZ. CONST. art. XXX, § 1; ARK. CONST. amend. LXXXIII, § 1; CAL.
3

states’ courts became more receptive to legal and constitutional challenges to laws restricting
marriage to the historical view.7 Soon, some state legislatures began amending their laws to
expressly permit and recognize same-sex marriages, and more courts began invalidating laws that
did not.8
In 2013, the United States Supreme Court held in a 5-4 decision that the federal DOMA’s
provision defining the terms “marriage” and “spouse” to apply only to opposite-sex couples
violates “basic due process and equal protection principles applicable to the Federal Government.”
Windsor, 133 S. Ct. at 2693 (citing U.S. CONST. amend. V; Bolling v. Sharpe, 347 U.S. 497
(1954)). The Court noted that by then, twelve states and the District of Columbia had “decided that
same-sex couples should have the right to marry and so live with pride in themselves and their
union and in a status of equality with all other married persons.” Id. at 2689.
CONST. art. I, § 7.5; COLO. CONST. art. II, § 31; FLA. CONST. art. I, § 27; GA. CONST. art. I, § 4, ¶ I; HAW. CONST. art. I, § 23; KAN. CONST. art. XV, § 16; KY. CONST. § 233A; LA. CONST. art. XII, § 15; MICH. CONST. art. 1, § 25; MISS. CONST. art. 14, § 263A; MO. CONST. art. I, § 33; MONT. CONST. art. XIII, § 7; N.C. CONST. art. XIV, § 6; N.D. CONST. art. XI, § 28; OHIO CONST. art. XV, § 11; OKLA. CONST. art. II, § 35; S.C. CONST. art. XVII, § 15; S.D. CONST. art. XXI, § 9; TENN. CONST. art. XI, § 18; TEX. CONST. art. I, § 32; VA. CONST. art. I, § 15-A. Six additional states passed constitutional amendments without enacting a statutory provision. See IDAHO CONST. art. III, § 28; NEB. CONST. art. I, § 29; NEV. CONST. art. I, § 21; OR. CONST. art. XV, § 5a; UTAH CONST. art. I, § 29; WIS. CONST. art. XIII, § 13.
7 See, e.g., Baker v. State, 744 A.2d 864, 886 (Vt. 1999) (holding that the Vermont Constitution’s commonbenefits clause requires state to provide “the same benefits and protections” to same-sex couples as to “married opposite-sex couples”); Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743, at *6 (Alaska Super. Ct. Feb. 27, 1998) (mem. op.) (requiring state to show compelling reason to ban same-sex marriage); Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993) (plurality op.) (holding Hawaii statute potentially violated Hawaii Constitution’s equal-protection clause and was subject to “strict scrutiny,” meaning it was unconstitutional unless it was “justified by compelling state interests” and was “narrowly drawn to avoid unnecessary abridgements of the [plaintiffs’] constitutional rights”).
8 See, e.g., DEL. CODE tit. 13, § 129 (2013); D.C. CODE § 46-401 (2009); MD. CODE, FAM. LAW § 2-201 (2012); MINN. STAT. § 517.01 (2013); N.H. REV. STAT. ANN. § 457:1-a (2009); N.Y. DOM. REL. LAW § 10-a (2011); 15 R.I. GEN. LAWS § 15-1-1 (2013); VT. STAT. ANN. tit. 15, § 8 (2009); WASH. REV. CODE § 26.04.010 (2012); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008); Lewis v. Harris, 908 A.2d 196 (N.J. 2006); Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
4

In the Court’s view, the federal DOMA definitions did not merely preserve the traditional
view of marriage. Instead, their “avowed purpose and practical effect [were] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of [the] States.” Id. at 2693. Concluding that “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom [a state], by its marriage laws, sought to protect in personhood and dignity,” the Court found the federal definitions unconstitutional. Id. at 2696.
Based on Windsor, the City of Houston city attorney advised then-Mayor Annise Parker that the City “may extend benefits” to City employees’ same-sex spouses who were legally married
in other states “on the same terms it extends benefits to heterosexual spouses.” In the attorney’s opinion, refusing to provide such benefits would “be unconstitutional.” Relying on this advice, on November 19, 2013, Mayor Parker sent a memo to the City’s human-resources director “directing that same-sex spouses of employees who have been legally married in another jurisdiction be afforded the same benefits as spouses of a heterosexual marriage.” The City began offering those benefits soon after the Mayor issued her directive.
A month later, on December 13, 2013, Pidgeon and Hicks9 filed suit against the City and the Mayor10 in state court (Pidgeon I), challenging the Mayor’s directive and the City’s provision
9 Except when helpful to distinguish the two, we will generally refer to Pidgeon and Hicks collectively as Pidgeon.
10 Except when helpful to distinguish the two, we will generally refer to the Mayor and the City collectively as the Mayor. Pidgeon sued Mayor Parker in her official capacity, as is required for an ultra-vires action. See City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009). Mayor Parker’s term ended on January 2, 2016, and Sylvester Turner took office on that date. When a public officer who is sued in an official capacity ceases to hold office before an appeal is resolved, her successor in office is automatically substituted as a party. TEX. R. APP. P. 7.2(a). Although Mayor Turner did not initially issue the directive, he has expressed no intent to withdraw it and has continued to defend it in this appeal.
5

of benefits pursuant to that directive. The Mayor removed Pidgeon I to federal court, which
ultimately remanded it back to state court. But by then, the state court had apparently dismissed
the suit for want of prosecution. Instead of challenging the dismissal of Pidgeon I, Pidgeon and
Hicks reasserted their claims by filing this suit (Pidgeon II) on October 22, 2014.
Pidgeon and Hicks alleged that they are Houston taxpayers and qualified voters, that the
City is “expending significant public funds on an illegal activity,” and that the Mayor’s directive
authorizing those expenditures violates Texas’s and the City’s DOMAs. Specifically, prior to
Windsor, the City had amended its charter, and the State had amended the Texas Family Code and
the Texas Constitution, to more forcefully preserve the traditional view of marriage:
x In 2001, the City’s voters signed and then approved a petition to amend the City’s charter to provide that, except “as required by State or Federal law, the City of Houston shall not provide employment benefits, including health care, to persons other than employees, their legal spouses and dependent children.” CITY OF HOUSTON CHARTER art. II, § 22. Although this language did not expressly refer to same-sex relationships, the voters’ intent to deny tax-funded employment benefits to same-sex partners was undisputed, as reflected in the title the City itself gave to the new provision: “Denial of Benefits to Same-Sex Partners and Related Matters.”11
x In 2003, the Texas Legislature amended the Family Code to expressly provide that (1) any “marriage between persons of the same sex . . . is contrary to the public policy of this state and is void in this state”; and (2) the state or any agency or political subdivision “may not give effect to” any “right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex . . . in this state or in any other jurisdiction,” TEX. FAM. CODE § 6.204(b), (c)(2) (2003). See Act of May 14, 2003, 78th Leg., R.S., ch. 124, § 1, 2003 Tex. Sess. Law Serv. 124.
x In 2005, two-thirds of the Texas Senate and House approved a joint resolution to amend the Texas Constitution to expressly provide that:

11 See also “City Voters Reject Same-Sex Benefits,” HOUS. CHRON. (Nov. 7, 2001),

http://www.chron.com/news/houston-texas/article/City-voters-reject-same-sex-benefits-2072330.php

(“Gay

rights . . . was the burning issue.”).

6

(a) Marriage in this state shall consist only of the union of one man and one woman[, and]
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.
Act effective Nov. 11, 2005, 79th Leg., R.S., Tex. Gen. Laws 5409. Later that year, over 76% of Texas voters approved the proposition.12 See TEX. CONST. art. I, § 32. Pidgeon alleged that these DOMAs remained valid and enforceable despite Windsor because Windsor addressed only the federal DOMA and its impact on persons married in states that had elected to allow same-sex marriages. In Pidgeon’s view, Windsor merely required the federal government to acknowledge marriages the various states may recognize; it did not require Texas or any other state to license same-sex marriages or recognize same-sex marriages performed in other states. Pidgeon sought unspecified actual damages as well as temporary and permanent injunctive relief prohibiting the City from providing benefits to same-sex spouses of employees married in other jurisdictions. The Mayor and City filed pleas to the jurisdiction asserting governmental immunity and challenging Pidgeon’s standing to assert his claims.13 The trial court denied the pleas and granted Pidgeon’s request for a temporary injunction prohibiting the Mayor “from furnishing benefits to
persons who were married in other jurisdictions to City employees of the same sex.” The Mayor immediately filed this interlocutory appeal challenging both the order denying the pleas to the jurisdiction and the order granting the temporary injunction.
12 See OFFICE OF THE SEC’Y OF STATE, RACE SUMMARY REPORT: 2005 CONSTITUTIONAL AMENDMENT ELECTION (2005), http://elections.sos.state.tx.us/elchist117_state.htm.
13 The City challenged Pidgeon’s standing to assert any of his claims against the City, but the Mayor initially challenged only his standing to sue her for damages and attorney’s fees. She later filed a supplemental plea challenging all of Pidgeon’s claims. The trial court heard and ruled on all of the challenges together.
7

Meanwhile, courts across the country were hearing other lawsuits challenging the constitutionality of various state DOMAs. In Obergefell, the United States Supreme Court consolidated and agreed to hear five of those cases, in which the plaintiffs alleged that their states’ laws denying same-sex couples the right to marry or prohibiting recognition of the legal validity of a same-sex marriage from another state violate the federal Constitution. 135 S. Ct. at 2593. On June 26, 2015—while this case (Pidgeon II) remained pending on interlocutory appeal before the Texas court of appeals—the United States Supreme Court issued its decision in Obergefell. Id. at 2608.
In another 5-4 decision, the Court concluded in Obergefell that the state DOMAs at issue violate “the Due Process and Equal Protection Clauses of the Fourteenth Amendment.” Id. at 2604. Based on that conclusion, the Court held that the states may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples,” and may not “refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” Id. at 2605.
The Mayor then filed a supplemental brief in the court of appeals, arguing that Obergefell required the court to reverse the injunction. In response, Pidgeon argued that even if Obergefell requires Texas to license and recognize same-sex marriages, it does not require “states to pay taxpayer-funded benefits to same-sex relationships.” According to Pidgeon, Obergefell did not resolve his claims because federal courts cannot “commandeer state spending decisions.”
On July 28, 2015, the court of appeals reversed the trial court’s temporary injunction. 477 S.W.3d 353, 355 (Tex. App.—Houston [14th Dist.] 2015). In a brief per curiam opinion, the court recited Obergefell’s holdings that “same sex couples may exercise their fundamental right to marry
8

in all States,” and that “there is no lawful basis for a State to refuse to recognize a lawful same-sex
marriage performed in another State on the ground of its same-sex character.” Id. at 354 (quoting
Obergefell, 135 S. Ct. at 2604–05, 2607–08). Noting “the substantial change in the law regarding
same-sex marriage since the temporary injunction was signed,” the court reversed the injunction
and remanded the case to the trial court for further proceedings. Id. at 355. We granted Pidgeon’s
petition for review.14
II. Our Jurisdiction
We must first determine whether we have jurisdiction to review the court of appeals’
interlocutory decision. The Mayor appealed from the trial court’s orders denying her plea to the
jurisdiction and granting the temporary injunction. Texas law permits interlocutory appeals from
such orders, see TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4), (8), but currently, this Court’s
jurisdiction over interlocutory appeals “is limited.” TIC Energy & Chem., Inc. v. Martin, 498
S.W.3d 68, 71 (Tex. 2016) (citing TEX. GOV’T CODE § 22.001(a)(1)).17 We may only review the
appellate court’s interlocutory decision if (1) one or more justices dissented in the court of appeals,
14 Both before and after we granted review, we received numerous amicus curiae briefs urging us to consider the case and expressing various views on how we should rule. In support of Pidgeon, we received amicus briefs from one Texas Railroad Commissioner, eleven Texas Senators, forty Texas Representatives, and four then-candidates for the Texas Legislature; fifteen “Conservative Leaders throughout Texas,” the U.S. Pastor Council, and Texas Leadership (aka the Texas Pastor Council); the Texas Governor, Lieutenant Governor, and Attorney General; and the Foundation for Moral Law and the Institute for Creation Research. In support of the Mayor, we received amicus briefs from Kenneth L. Smith; the International Municipal Lawyers Association and the Texas Municipal League; Lawyers for America; twenty-six Texas constitutional-law and family-law professors; L.J. and M.P., a Married Couple, and Equality Texas; the De Leon plaintiffs; the Anti-Defamation League; GLBTQ Legal Advocates & Defenders, Lambda Legal Defense and Education Fund, Inc., the National Center for Lesbian Rights, the American Civil Liberties Union of Texas, and the American Civil Liberties Union Foundation; and three “scholars who study same-sex couples and their families.” We also received numerous emails, letters, and postcards expressing a wide variety of views, which we have treated as amicus briefs.
17 The Legislature recently removed these and other limitations on our jurisdiction, but that change is not effective until September 1, 2017. Act of May 19, 2017, 85th Leg., R.S., ch. ___, § 1, 2017 Tex. Gen. Laws ___, ___.
9

or (2) the court of appeals “holds differently from a prior decision of another court of appeals or of the supreme court.” TEX. GOV’T CODE § 22.225(c) (incorporating TEX. GOV’T CODE § 22.001(a)(1)–(2)). One court “holds differently from another when there is inconsistency in their respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants.” Id. § 22.225(e).
Pidgeon argues that the court of appeals’ decision in this case creates an inconsistency that should be clarified. In its opinion, the court recited not only the Supreme Court’s holdings in Obergefell, but also the United States Fifth Circuit Court of Appeals’ holdings in a case called De Leon v. Abbott. See 477 S.W.3d at 354–55 (citing De Leon v. Abbott, 791 F.3d 619, 624–25 (5th Cir. 2015)). Concluding that both decisions created a “substantial change in the law regarding same-sex marriage since the temporary injunction was signed,” the court reversed the temporary injunction and remanded the case to the trial court “for proceedings consistent with Obergefell and De Leon.” Id. at 355. Pidgeon contends that the court’s requirement that the trial court proceed “consistent with” De Leon conflicts with our previous decisions holding that Fifth Circuit decisions are not binding on Texas courts. See, e.g., Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (holding that while “Texas courts may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court, . . . they are obligated to follow only higher Texas courts and the United States Supreme Court”).
The Mayor agrees that De Leon is not binding on the trial court but contends that the court of appeals did not hold that it was. According to the Mayor, the court of appeals “did not rule on how Obergefell and De Leon affect the ultimate outcome of [Pidgeon’s] claims,” and instead
10

“simply reversed the temporary injunction based on the change in the law and remanded to the trial court, in the interest of justice, for proceedings consistent with those cases.”
We agree with the Mayor that the trial court could read the court of appeals’ opinion to hold merely that the trial court should consider De Leon as a persuasive authority when addressing Pidgeon’s arguments. As the Mayor notes, the court of appeals suggested that it was remanding the case “in the interest of justice” because the case “has not been fully developed.” 477 S.W.3d at 355 n.3 (citing TEX. R. APP. P. 43.3(b); Ahmed v. Ahmed, 261 S.W.3d 190, 196 (Tex. App.— Houston [14th Dist.] 2008, no pet.); Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex. App.— Houston [14th Dist.] 2007, no pet.)). But without our review, Pidgeon has no assurance that the trial court would read the court of appeals’ opinion that way. The court of appeals did not instruct the trial court to proceed “in light of” or “considering” De Leon. Instead, it instructed the court to proceed “consistent with” De Leon. We conclude that the court of appeals’ language gives rise to the type of “unnecessary uncertainty in the law and unfairness to litigants” that our conflicts jurisdiction allows us to clarify. See TEX. GOV’T CODE § 22.225(e). We thus conclude that we have jurisdiction over this interlocutory appeal. See Harry Eldridge Co. v. T.S. Lankford & Sons, Inc., 371 S.W.2d 878, 879 (Tex. 1963) (“[W]hen our jurisdiction is properly invoked as to one point set forth in the application for writ of error, we acquire jurisdiction of the entire case.”).
III. Arguments and Requested Relief We now turn to Pidgeon’s substantive arguments. Pidgeon does not argue that the court of appeals erred by dissolving the temporary injunction and remanding the case to the trial court. Instead, he contends that the court of appeals (A) should not have instructed the trial court to conduct further proceedings “consistent with” De Leon; (B) should not have reversed the
11

temporary injunction, but instead should have vacated or dissolved it; and (C) should have affirmed the temporary injunction “to the extent” it required the City to “claw back” benefits the City provided to same-sex spouses before Obergefell. In addition, he (D) urges us to instruct the trial court to “narrowly construe” Obergefell on remand. We address each argument in turn. A De Leon
Pidgeon first argues that by instructing the trial court to conduct further proceedings “consistent with” the Fifth Circuit’s decision in De Leon, the court of appeals’ opinion could be misread to mean that De Leon is binding on the trial court. Whether De Leon is binding is crucial to Pidgeon’s case because unlike Obergefell, De Leon specifically held that the Texas DOMAs violate the federal Constitution and cannot be enforced. See De Leon v. Perry, 975 F. Supp. 2d 632, 666 (W.D. Tex. 2014), aff’d sub nom., De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015). We agree with Pidgeon that the court of appeals should not have ordered the trial court to proceed on remand “consistent with” De Leon.
Two same-sex couples filed De Leon in federal court in San Antonio in 2013, shortly after Windsor issued. They sued the Texas Governor, the Texas Commissioner of the Department of State Health Services, and the Bexar County Clerk (collectively, the Governor), challenging the constitutionality of the Texas DOMAs under the federal Constitution. The federal district court enjoined the Governor from enforcing the Texas DOMAs, holding that “Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process,” 975 F. Supp. 2d at 639, and “Texas’ refusal to recognize . . . out-of-state same-
12

sex marriage[s] violates due process,” id. at 662. The Governor15 promptly appealed the injunction
to the Fifth Circuit, where it remained pending until the Supreme Court decided Obergefell.
After the Supreme Court announced its decision in Obergefell, the Governor agreed with
the De Leon plaintiffs that the federal-court injunction was “correct in light of Obergefell.” Id. at
625. The Fifth Circuit thus affirmed the injunction and remanded the case with instructions that
the district court enter a final judgment on the merits in the plaintiffs’ favor. Id. The Governor did
not oppose this disposition or seek the Supreme Court’s review. On July 7, 2015, the district court
entered a final judgment declaring that the Texas DOMAs violate the federal Constitution’s due-
process and equal-protection clauses and permanently enjoining the Governor “from enforcing
Texas’s laws prohibiting same-sex marriage.” The parties agree that the State of Texas has been
providing benefits to state employees’ same-sex spouses ever since.
We agree with Pidgeon that De Leon does not bind the trial court in this case and the court
of appeals should not have instructed the trial court to conduct further proceedings “consistent
with” De Leon. Penrod Drilling, 868 S.W.2d at 296.16 That does not mean, however, that the trial
15 Rick Perry was the Texas Governor when De Leon was filed in 2013. By the time Obergefell issued in 2015, Greg Abbott was the Governor, having taken office in January of that year. Governor Abbott previously served as Texas Attorney General, and in that capacity, he represented Governor Perry in De Leon. When Abbott became Governor, Ken Paxton became Attorney General and began representing now-Governor Abbott in De Leon.
16 See also Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring) (“In our federal system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.”), cited by Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n.11 (1997); U. S. ex rel. Lawrence v. Woods, 432 F.2d 1072, 1076 (7th Cir. 1970) (“[B]ecause lower federal courts exercise no appellate jurisdiction over state tribunals, decisions of lower federal courts are not conclusive on state courts.”). Texas courts of appeals have also consistently recognized this principle. See, e.g., First Nat’l Collection Bureau, Inc. v. Walker, 348 S.W.3d 329, 337 (Tex. App.—Dallas 2011, pet. denied) (“Although decisions of the federal courts of appeals do not bind Texas courts, [state courts] receive them ‘with respectful consideration.’”) (quoting Hassan v. Greater Hous. Transp. Co., 237 S.W.3d 727, 731 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)); Barstow v. State, 742 S.W.2d 495, 501–02 (Tex. App.—Austin 1987, writ denied) (“We are not bound to follow [Fifth Circuit precedent] merely because Texas lies within the geographical limits of the Fifth Circuit.”).
13

court should not consider De Leon when resolving Pidgeon’s claims. Fifth Circuit decisions, particularly those regarding federal constitutional questions, can certainly be helpful and may be persuasive for Texas trial courts. Moreover, De Leon could potentially affect the relief the trial court might provide on remand, since De Leon has enjoined the Governor from enforcing the Texas DOMAs and the State of Texas is thus providing benefits to state employees’ same-sex spouses. The trial court should certainly proceed on remand “in light of” De Leon, but it is not required to proceed “consistent with” it. B. “Reversal” of the injunction
Pidgeon next argues that by “reversing” the trial court’s temporary injunction instead of vacating or dissolving it, the court of appeals’ judgment might be taken to have a res-judicata effect prohibiting Pidgeon from seeking or obtaining the same or similar relief on remand. The Mayor contends, however, that the court of appeals could not have erred by reversing the injunction order because our rules only permit a court of appeals to “reverse the trial court’s judgment and remand the case for further proceedings.” TEX. R. APP. P. 43.2(d) (emphasis added); compare TEX. R. APP. P. 43.2(e) (permitting courts of appeals to “vacate the trial court’s judgment and dismiss the case” (emphases added)) with 60.2(f) (permitting this Court to “vacate the lower court’s judgment and remand the case for further proceedings in light of changes in the law” (emphases added)); but see TEX. R. APP. P. 43.6 (“The court of appeals may make any other appropriate order that the law and the nature of the case require.”).
Texas appellate courts have held that the “dissolution of a temporary injunction bars a second application for such injunctive relief.” See Sonwalkar v. St. Luke’s Sugar Land P’ship, 394 S.W.3d 186, 195 (Tex. App.—Houston [1st Dist.] 2012, no pet.); see also City of San Antonio v.
14

Singleton, 858 S.W.2d 411, 412 (Tex. 1993) (stating that the trial court’s jurisdiction to “review, open, vacate or modify” an injunction based on changed conditions “must be balanced against principles of res judicata”). But that is not true if “the second request is based on changed circumstances not known by the applicant at the time of the first application.” Sonwalkar, 394 S.W.3d at 195 (citing State v. Ruiz Wholesale Co., 901 S.W.2d 772, 776 (Tex. App.—Austin 1995, no writ)). When conditions have changed, including a change in the law, the trial court may consider the injunction anew in light of the new law or circumstances. See Smith v. O’Neill, 813 S.W.2d 501, 502 (Tex. 1991) (per curiam) (citing City of Tyler v. St. Louis Sw. Ry., 405 S.W.2d 330, 332 (Tex. 1966)); Sonwalkar, 394 S.W.3d at 195.
Obergefell undoubtedly constitutes a “change in the law” that justified the dissolution of the trial court’s injunction in this case. But in light of that change in the law, Pidgeon is not precluded from seeking the same or similar relief on remand. On remand, the trial court must consider both parties’ arguments regarding the effect of Obergefell on Pidgeon’s claims, and may grant whatever relief is then appropriate. C. “Claw-back” Relief
Pidgeon next argues that the court of appeals should have affirmed the temporary injunction “to the extent” the injunction required the City to “claw back” tax dollars it expended on benefits for same-sex spouses prior to Obergefell. Pidgeon reasons that Obergefell does not apply retroactively to authorize pre-Obergefell expenditures because the Supreme Court acknowledged that it was attributing a new meaning to the Fourteenth Amendment based on “new insights and societal understandings.” Obergefell, 135 S. Ct. at 2603. According to Pidgeon, Supreme Court decisions apply retroactively when the Court determines and enforces the
15

Constitution’s original meaning, see Harper v. Va. Dept. of Taxation, 509 U.S. 86, 106–07 (1993) (Scalia, J., concurring), but not when it changes the Constitution’s meaning as it did in Obergefell.17 And since Obergefell is not retroactive, the Texas DOMAs remained fully in effect at least until June 26, 2015, and the Mayor had no authority to issue or enforce the directive before then.
In response, the Mayor contends that Pidgeon lacks standing to seek any retroactive relief. The Mayor argues that although Pidgeon—as a City taxpayer—may have standing to complain about the City’s future illegal expenditures of public funds, taxpayers only have standing to seek retrospective relief against illegal expenditures if they can demonstrate a particularized injury. See Williams v. Lara, 52 S.W.3d 171, 179 (Tex. 2001).
Relying on Burwell v. Hobby Lobby Stores, Inc., — U.S. —, 134 S. Ct. 2751 (2014)—a challenge to federal health-insurance regulations under the federal Religious Freedom Restoration Act, id. at 2759—Pidgeon replies that he and Hicks have in fact suffered a particularized injury “because they are devout Christians who have been compelled by the mayor’s unlawful edict to subsidize homosexual relationships that they regard as immoral and sinful.” The Mayor, in turn, denies that Hobby Lobby grants Pidgeon standing under these circumstances, and contends that— even if Pidgeon had standing to seek retroactive monetary relief—he would not have standing to
17 Pidgeon also argues that Obergefell cannot apply retroactively because otherwise (1) same-sex couples who lived together and held themselves out as “married” in jurisdictions that recognize common-law marriage would in fact be retroactively married; (2) any such couples who since ended their relationships and entered into new relationships could be retroactively liable for alimony to the former “spouses” and subject to bigamy prosecutions; and (3) jurisdictions around the country will be liable for damages to every same-sex couple that was denied a marriage license or recognition prior to Obergefell. We express no opinions on these hypotheticals at this time, as they are unnecessary to our resolution of this appeal.
16

force the City to recover funds it previously paid to third parties. See Hoffman v. Davis, 100 S.W.2d 94, 96 (Tex. 1937) (holding that when a taxing entity has already spent a taxpayer’s tax money, “an action for its recovery is for the [taxing entity],” and the “cause of action belongs to it alone”); see also Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 556 (Tex. 2000) (quoting Hoffman with approval).
We find these arguments both interesting and important, but at least two obstacles prevent us from reaching them today. First, Pidgeon never requested an injunction requiring the City to claw back benefits it provided before Obergefell; and second, the trial court never granted one. The temporary injunction at issue here prospectively prohibited the City “from furnishing benefits to persons who were married in other jurisdictions to City employees of the same sex.” The order did not to any extent require the City to recover benefits it had previously paid. It was a temporary injunction, and its only “proper function” was to “preserve the status quo.” Coyote Lake Ranch v. City of Lubbock, 498 S.W.3d 53, 65 (Tex. 2016). We cannot conclude that the court of appeals erred by failing to preserve the injunction “to the extent” that it required a claw-back when it did not require a claw-back to any extent.
Because Pidgeon has never yet sought a claw-back injunction, we express no opinion on whether he has standing to seek one or whether he is entitled to one. We agree with Pidgeon, however, that the court of appeals’ opinion and judgment do not prohibit him from seeking such an injunction or any other relief on remand. But we conclude that the court of appeals did not err by reversing this temporary injunction in its entirety.
17

D. Instructions on Remand Finally, Pidgeon urges us to instruct the trial court to “narrowly construe” Obergefell on
remand and to “comply with Obergefell but not to expand on it,” so as to “preserve as much of the [Texas DOMAs] as possible.” Pidgeon argues that we should provide these instructions because Obergefell is “poorly reasoned,” has “no basis in the text or history of the Constitution,” and does not “faithfully interpret” the Constitution. So construed, Obergefell may have recognized a “fundamental right” to same-sex marriage and may “require States to license and recognize samesex marriages,” but, Pidgeon contends, it did not recognize a fundamental right “to spousal employee benefits” or “require States to give taxpayer subsidies to same-sex couples.” Pidgeon argues that we should “remand for a new temporary injunction hearing” and the trial court should “consider on remand which applications of [the Texas DOMAs] can be preserved to the extent they prohibit taxpayer subsidies for same-sex marriages.”
The Mayor agrees we should remand this case to the trial court, but contends that Obergefell, and Windsor before it, held that the Constitution protects not only the right of samesex couples to marry, but also to receive all of the “benefits” of marriage. See, e.g., Obergefell, 135 S. Ct. at 2606 (declining to adopt a “slower, case-by-case determination of the required availability of specific public benefits to same-sex couples”); Windsor, 133 S. Ct. at 2694 (observing that the federal DOMA prevents “same-sex married couples from obtaining government healthcare benefits they would otherwise receive”). The Mayor also contends that Pidgeon lacks standing to challenge the Mayor’s directive under Obergefell, and rejects Pidgeon’s position that Texas courts can “narrowly construe” Obergefell, at least to the extent that means they can ignore its natural meaning and applications. See, e.g., McKinney v. Blankenship, 282
18

S.W.2d 691, 694–95 (Tex. 1955) (rejecting argument that Texas courts could ignore Brown v.
Board of Education since Texas’s segregation laws “were not before the Supreme Court” in that
case as “so utterly without merit that we overrule it without further discussion”).
We agree with the Mayor that any effort to resolve whether and the extent to which the
Constitution requires states or cities to provide tax-funded benefits to same-sex couples without
considering Obergefell would simply be erroneous.18 On the other hand, we agree with Pidgeon
that the Supreme Court did not address and resolve that specific issue in Obergefell. “Whatever
ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage
are unstated at best . . . .” Coker v. Whittington, 858 F.3d 304, 307 (5th Cir. 2017).19 The Supreme
Court held in Obergefell that the Constitution requires states to license and recognize same-sex
marriages to the same extent that they license and recognize opposite-sex marriages, but it did not
hold that states must provide the same publicly funded benefits to all married persons, and—unlike
the Fifth Circuit in De Leon—it did not hold that the Texas DOMAs are unconstitutional.
18 See, e.g., Pavan v. Smith, ___ U.S.___, 2017 WL 2722472, at *2 (2017) (per curiam) (holding that “Obergefell proscribes” the “disparate treatment” resulting from state statute that requires listing married woman’s husband’s name on child’s birth certificate but permits state to omit married woman’s female spouse’s name); see also Obergefell, 135 S. Ct. at 2601 (stating that “same-sex couples are denied the constellation of benefits that the States have linked to marriage”), 2604 (stating that DOMAs “burden the liberty of same-sex couples” and deny “all the benefits afforded opposite-sex couples”), 2626 (Roberts, C.J., dissenting) (inviting same-sex-marriage proponents to celebrate “the availability of new benefits”); Windsor, 133 S. Ct. at 2692 (stating that the federal “DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State”), 2693 (stating that the federal DOMA “operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages”).
19 See, e.g., Parella v. Johnson, No. 1:15-cv-0863, 2016 WL 3566861, at *9–10 (N.D.N.Y. June 27, 2016) (holding that even after Obergefell, the “fundamental right to marry” does not include “the right to obtain a visa for an alien spouse”); Solomon v. Guidry, 155 A.3d 1218, 1221 (Vt. 2016) (“[B]ecause civil marriage and civil unions remain legally distinct entities in Vermont and because Obergefell mandated that states recognize only samesex marriage, uncertainty remains as to whether Obergefell requires other states to recognize and dissolve civil unions established in Vermont.”); In re P.L.L.-R., 876 N.W.2d 147, 153 (Wis. Ct. App. 2015) (“Obergefell did not answer questions regarding Wisconsin’s presumption of paternity statute.”).
19

Of course, that does not mean that the Texas DOMAs are constitutional or that the City may constitutionally deny benefits to its employees’ same-sex spouses. Those are the issues that this case now presents in light of Obergefell. We need not instruct to the trial court to “narrowly construe” Obergefell to confirm that Obergefell did not directly and expressly resolve those issues. But neither will we instruct the trial court to construe Obergefell in any manner that makes it irrelevant to these issues. Pidgeon contends that neither the Constitution nor Obergefell requires citizens to support same-sex marriages with their tax dollars, but he has not yet had the opportunity to make his case. And the Mayor has not yet had the opportunity to oppose it. Both are entitled to a full and fair opportunity to litigate their positions on remand.
Although both parties agree that we should remand this case for the parties to have that full and fair opportunity, some amici have argued that we should resolve the parties’ dispute here on this interlocutory appeal. We cannot resolve the parties’ claims now, however, because they have not yet been fully developed or litigated. The parties’ arguments address the meaning and ramifications of Obergefell, which was not announced until after the parties had filed their briefs in the court of appeals. Naturally, the parties did not raise their current arguments in the trial court or in the court of appeals, and neither court ruled on them. Many of the arguments—including those addressing standing and retroactivity, for example—depend on an evidentiary record that the parties have not yet had the opportunity to develop. “Without an actual challenge . . . , without full briefing from all parties . . . , and without complete vetting of the parties’ potential arguments in the lower courts, we are ill-prepared to offer—and constitutionally prohibited from offering—an advisory interpretation . . . that could have significant, lasting consequences.” Hegar v. Tex. Small Tobacco Coal., 496 S.W.3d 778, 792 (Tex. 2016) (citing Brooks v. Northglen Ass’n, 141 S.W.3d
20

158, 164 (Tex. 2004)); see also Pub. Affairs Assocs. v. Rickover, 369 U.S. 111, 113 (1962) (“These are delicate problems; their solution is bound to have far-reaching import. Adjudication of such problems, certainly . . . should rest on an adequate and full-bodied record. The record before us is woefully lacking in these requirements.”). We decline the amici’s requests that we render a final ruling on the merits before the parties have had a full opportunity to make their case.
IV. Immunity Finally, we address the Mayor’s and the City’s interlocutory appeals from the trial court’s orders denying their pleas to the jurisdiction based on governmental immunity. Although the parties briefed this issue in the court of appeals, they did so before Obergefell, and the court did not address the issue in its opinion or its judgment. The Mayor noted the issue but reserved briefing in this Court. We are hesitant to ignore the issue because governmental immunity implicates the courts’ subject-matter jurisdiction to hear Pidgeon’s claims. See Engelman Irrig. Dist. v. Shield Bros., — S.W.3d —, — (Tex. 2017). But neither party has briefed the issue since Obergefell, which may also affect the immunity defenses. The parties agree, for example, that Pidgeon sued the Mayor in her official capacity for acting ultra vires, that is, “without legal authority.” City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (2009). Pidgeon alleges that the Mayor acted unlawfully and without authority by issuing and enforcing the directive because the Texas and Houston DOMAs prohibit the City from providing benefits to employees’ same-sex spouses. Governmental immunity does not bar an ultra-vires claim, but the parties disagree whether the Mayor’s directive remains unlawful and unauthorized
21

after Obergefell.20 This disagreement may present the ultimate issue in this case, both on the merits and for purposes of determining whether the Mayor has acted ultra vires.
The trial court denied the Mayor’s plea, but it did so in 2014, prior to Obergefell. Whether (or the extent to which) Pidgeon alleges ultra-vires conduct even after Obergefell is an issue that the trial court must address in the first instance. See TEX. R. APP. P. 60.2(f) (providing that this Court may “vacate the lower court’s judgment and remand the case for further proceedings in light of changes in the law”); In re Doe 2, 19 S.W.3d 278, 283 (Tex. 2000) (noting that rule 60.2(f) is “particularly well-suited” to situations in which courts must address novel situations).
Unlike the Mayor, however, the City is not a proper party to an ultra-vires claim. See Heinrich, 284 S.W.3d at 372–73 (“[T]he governmental entities themselves—as opposed to their officers in their official capacity—remain immune from suit. . . . [I]t follows that [ultra-vires] suits cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity.”). The City argued in its plea that the trial court must dismiss Pidgeon’s claims against it because Pidgeon failed to plead or establish any waiver of the City’s immunity. In response, Pidgeon argued that the Texas Uniform Declaratory Judgments Act (the DJA) waives the City’s immunity against Pidgeon’s claim. See TEX. CIV. PRAC. & REM. CODE §§ 37.001–.011.
20 We note that neither the Supreme Court in Obergefell nor the Fifth Circuit in De Leon “struck down” any Texas law. When a court declares a law unconstitutional, the law remains in place unless and until the body that enacted it repeals it, even though the government may no longer constitutionally enforce it. Thus, the Texas and Houston DOMAs remain in place as they were before Obergefell and De Leon, which is why Pidgeon is able to bring this claim.
22

The City pointed out, however, that Pidgeon never mentioned the DJA in his petition, much less pleaded that it waived the City’s governmental immunity. At the hearing on the City’s plea, and in his brief in the court of appeals, Pidgeon acknowledged that he had not expressly pleaded a claim or waiver under the DJA, but offered to amend his pleadings “to make the request for a declaration more explicit.” On remand, Pidgeon will have the opportunity to replead his claims against the City, and the City will have the opportunity to file a new plea to the jurisdiction as to any such claims.
V. Conclusion In Obergefell, the Supreme Court acknowledged that our historical view of marriage has long been “based on the understanding that marriage is a union between two persons of the opposite sex.” 135 S. Ct. at 2594. It concluded, however, that this “history is the beginning of these cases,” and it rejected the idea that it “should be the end as well.” Id. But Obergefell is not the end either. Already, the Supreme Court has taken one opportunity to address Obergefell’s impact on an issue it did not address in Obergefell, and there will undoubtedly be others. See Pavan, ___ U.S. at ___, 2017 WL 2722472, at *2.21 Pidgeon and the Mayor, like many other litigants throughout the country, must now assist the courts in fully exploring Obergefell’s reach and ramifications, and are entitled to the opportunity to do so.
21 On the same day the Supreme Court issued its per curiam opinion in Pavan, it also granted certiorari in another case involving a same-sex-marriage issue Obergefell did not address. See Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015), cert. granted sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, — U.S.L.W. — (U.S. June 26, 2017) (No. 16-111). The Court’s decision to hear and consider Masterpiece Cakeshop illustrates that neither Obergefell nor Pavan provides the final word on the tangential questions Obergefell’s holdings raise but Obergefell itself did not address.
23

Today, however, we are dealing only with an interlocutory appeal from a trial court’s orders denying a plea to the jurisdiction and granting a temporary injunction. For the reasons explained, we hold that the Fifth Circuit’s decision in De Leon does not bind the trial court on remand, and the trial court is not required to conduct its proceedings “consistent with” that case. We hold that the court of appeals’ judgment does not bar Pidgeon from seeking all appropriate relief on remand or bar the Mayor from opposing that relief. We hold that the court of appeals did not err by failing to affirm the temporary injunction “to the extent” it required the City to claw back payments made prior to Obergefell. And we decline to instruct the trial court how to construe Obergefell on remand. We reverse the court of appeals’ judgment, vacate the trial court’s temporary injunction order, and remand this case to the trial court for further proceedings consistent with our judgment and this opinion.

Opinion delivered: June 30, 2017

_____________________ Jeffrey S. Boyd Justice

24

 
 Case: 4:13-cv-03768 As of: 09/09/2014 09:47 AM CDT 1 of 5
CLOSED,DOCSENT,REMANDED
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:13−cv−03768

Pidgeon et al v. Parker et al Assigned to: Judge Lee H Rosenthal Case in other court: 310th Judicial District Court, 13−75301 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 12/27/2013 Date Terminated: 08/28/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Jack Pidgeon

represented by Jared R. Woodfill Woodfill Law Firm PC 3131 Eastside St Ste 450 Houston, TX 77098 713−751−3080 Email: jwoodfill@woodfilllaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leif A. Olson The Olson Firm, PLLC PMB 188 4830 Wilson Rd Ste 300 Humble, TX 77396 281−849−8382 Fax: 281−248−2190 Email: notices@olsonappeals.com ATTORNEY TO BE NOTICED

Plaintiff Larry Hicks

represented by Jared R. Woodfill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leif A. Olson (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Mayor Annise Parker
Defendant City Of Houston

represented by David M Feldman City Attorney's Office 900 Bagby 4th Floor Houston, TX 77002 832.393.6412 Fax: 832.393.6218 Email: david.feldman@houstontx.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David M Feldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:13-cv-03768 As of: 09/09/2014 09:47 AM CDT 2 of 5

Movant Noel Freeman
Movant Yadira Estrada Movant Ronald Reeser

represented by Kenneth D Upton , Jr Lambda Legal Defense and Education Fund Inc 3500 Oak Lawn Ave Ste 500 Dallas, TX 75219−6722 214−219−8585 Fax: 214−219−4455 Email: kupton@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenneth D Upton , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenneth D Upton , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Amicus State Of Texas

represented by Jonathan F. Mitchell Office of the Texas Attorney General 209 West 14th St (MC 059) 7th Floor Austin, TX 78701 512−936−1695 Email: jonathan.mitchell@texasattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/27/2013 12/30/2013
12/30/2013
12/30/2013 12/30/2013

# Docket Text
1 NOTICE OF REMOVAL from 310th District Court, case number 2013−75301 (Filing fee $ 400 receipt number 0541−12536258) filed by City Of Houston. (Attachments: # 1 Civil Cover Sheet)(Feldman, David) (Entered: 12/27/2013)
2 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 5/9/2014 at 02:00 PM in Room 11521 before Judge Ewing Werlein, Jr(Signed by Judge Ewing Werlein, Jr) Parties notified.(smurdock, 4) (Entered: 12/30/2013)
3 EMERGENCY MOTION, MOTION for Temporary Restraining Order( Motion Docket Date 1/21/2014.) by Larry Hicks, Jack Pidgeon, filed. (Attachments: # 1 Exhibit A − TRO, # 2 Exhibit B − Woodfill declaration, # 3 Exhibit C − City's letter, # 4 Proposed Order)(Olson, Leif) (Entered: 12/30/2013)
4 ORDER Extending Temporary Restraining Order. The Temporary Restraining Order is extended until 5:00 p.m. January 2, 2014. (Signed by Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 12/30/2013)
5 NOTICE of Setting as to 3 EMERGENCY MOTION MOTION for Temporary Restraining Order. Parties notified. Motion Hearing set for 1/2/2014 at 03:00 PM in Courtroom 11B before Judge Lee H Rosenthal, filed. (gkelner, 4) (Entered: 12/30/2013)

Case: 4:13-cv-03768 As of: 09/09/2014 09:47 AM CDT 3 of 5

12/30/2013 12/30/2013 12/31/2013 12/31/2013 12/31/2013 12/31/2013
12/31/2013 01/02/2014 01/02/2014
01/06/2014 01/06/2014 01/07/2014 01/08/2014 01/08/2014

6 ORDER Vacating Order Extending Temporary Restraining Order (Signed by Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 12/30/2013)
7 ORDER Denying 3 EMERGENCY MOTION for Temporary Restraining Order ( Miscellaneous Hearing set for 1/2/2014 at 03:00 PM at Courtroom 11B before Judge Lee H Rosenthal)(Signed by Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 12/30/2013)
8 RESPONSE in Opposition to 3 EMERGENCY MOTION MOTION for Temporary Restraining Order, filed by City Of Houston, Annise Parker. (Feldman, David) (Entered: 12/31/2013)
9 Opposed MOTION to Intervene by Noel Freeman, Yadira Estrada, Ronald Reeser, filed. Motion Docket Date 1/21/2014. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Proposed Answer, # 3 Proposed Order Proposed Order)(Upton, Kenneth) (Entered: 12/31/2013)
10 MEMORANDUM re: 9 Opposed MOTION to Intervene by Yadira Estrada, Noel Freeman, Ronald Reeser, filed.(Upton, Kenneth) (Entered: 12/31/2013)
11 MOTION to Remand, MOTION for Attorney Fees, MOTION for Costs( Motion Docket Date 1/21/2014.) by Larry Hicks, Jack Pidgeon, filed. (Attachments: # 1 Exhibit 1 − Woodfill decl., # 2 Appendix A − State−court decisions, # 3 Appendix B − Pending state−court cases, # 4 Proposed Order)(Olson, Leif) (Entered: 12/31/2013)
12 MOTION to Expedite Motion to Remand by Larry Hicks, Jack Pidgeon, filed. Motion Docket Date 1/21/2014. (Attachments: # 1 Exhibit A − Parker letter, # 2 Proposed Order)(Olson, Leif) (Entered: 12/31/2013)
13 BRIEF supporting issuance of TRO by Larry Hicks, Jack Pidgeon, filed.(Olson, Leif) (Entered: 01/02/2014)
14 Minute Entry for proceedings before the Hon. Lee H. Rosenthal. Motion hearing held on January 2, 2013. After hearing from the parties and for the reasons stated on the record, the court denied the plaintiffs motion for issuance of a temporary restraining order, (Docket Entry No. 13), and motion to expedite, (Docket Entry No. 12). The court will enter a scheduling and docket control order as stated on the record. Appearances: Leif Olson/Jared Woodfill/Robert Talton/Jonathan Saenz for Pltfs. and David Feldman/John Wallace/Lynette Fons/Judith Ramsey for Defts. and Kenneth Upton for Movants. (Court Reporter: M. Malone), filed.(leddins, 4) (Entered: 01/03/2014)
15 TRANSFER ORDER. Case reassigned to Judge Lee H Rosenthal for all further proceedings. Judge Ewing Werlein, Jr no longer assigned to the case.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, 4) (Entered: 01/06/2014)
16 PROPOSED ORDER re: 3 EMERGENCY MOTION MOTION for Temporary Restraining Order, filed.(Feldman, David) (Entered: 01/06/2014)
17 TRANSCRIPT re: Motion Hearing held on January 2, 2014 before Judge Lee H Rosenthal. Court Reporter/Transcriber Mayra Malone. Ordering Party Judith Ramsey Release of Transcript Restriction set for 4/7/2014., filed. (mmalone, ) (Entered: 01/07/2014)
18 Notice of Filing of Official Transcript as to 17 Transcript. Party notified, filed. (hcarr, 4) (Entered: 01/08/2014)
19 SCHEDULING ORDER entered: January 9, 2014; The proposed intervenors' supplement to their motion to intervene, addressing whether the present case should be consolidated with Freeman v. Parker, No. H−13−3755, January 21, 2014; Defendants' response to Plaintiffs motion for remand, January 30, 2014; Plaintiffs and Defendants' responses to the proposed intervenors' supplemental motion to intervene, February 4, 2014; Plaintiffs' reply in support of motion for remand, February 11, 2013; Defendants' surreply to Plaintiffs' motion for remand. (Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 01/08/2014)

Case: 4:13-cv-03768 As of: 09/09/2014 09:47 AM CDT 4 of 5

01/09/2014 01/09/2014
01/09/2014 01/09/2014 01/16/2014 01/17/2014 01/21/2014 01/21/2014 01/30/2014 01/30/2014 01/31/2014
02/05/2014 02/07/2014 02/07/2014 02/11/2014 08/28/2014
08/28/2014

20 SUPPLEMENT to 9 Opposed MOTION to Intervene by Yadira Estrada, Noel Freeman, Ronald Reeser, filed. (Attachments: # 1 Exhibit Pending Marriage Cases)(Upton, Kenneth) (Entered: 01/09/2014)
21 Opposed MOTION to Consolidate Lead Case No. 4:13−cv−03768 and Member Case No. 4:13−cv−03755 by Yadira Estrada, Noel Freeman, Ronald Reeser, filed. Motion Docket Date 1/30/2014. (Attachments: # 1 Proposed Order Proposed Order)(Upton, Kenneth) (Entered: 01/09/2014)
22 NOTICE Amended Notice of Removal by City Of Houston, Annise Parker, filed. (Feldman, David) (Entered: 01/09/2014)
23 NOTICE Certificate of Service in Removed Action by City Of Houston, Annise Parker, filed. (Feldman, David) (Entered: 01/09/2014)
24 ANSWER to Complaint by City Of Houston, Annise Parker, filed.(Feldman, David) (Entered: 01/16/2014)
25 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motion to Remand by State Of Texas, filed. Motion Docket Date 2/7/2014. (Attachments: # 1 Proposed Order, # 2 Amicus Brief)(Mitchell, Jonathan) (Entered: 01/17/2014)
26 RESPONSE in Opposition to 11 MOTION to Remand MOTION for Attorney Fees MOTION for Costs, filed by City Of Houston, Annise Parker. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Feldman, David) (Entered: 01/21/2014)
27 MOTION to Amend by Larry Hicks, Jack Pidgeon, filed. Motion Docket Date 2/11/2014. (Attachments: # 1 Complaint Proposed 1st Amended Complaint, # 2 Proposed Order)(Olson, Leif) (Entered: 01/21/2014)
28 First RESPONSE to 9 Opposed MOTION to Intervene filed by City Of Houston, Annise Parker. (Feldman, David) (Entered: 01/30/2014)
29 First RESPONSE to 21 Opposed MOTION to Consolidate Lead Case No. 4:13−cv−03768 and Member Case No. 4:13−cv−03755 filed by City Of Houston, Annise Parker. (Feldman, David) (Entered: 01/30/2014)
30 RESPONSE in Opposition to 9 Opposed MOTION to Intervene, 21 Opposed MOTION to Consolidate Lead Case No. 4:13−cv−03768 and Member Case No. 4:13−cv−03755, filed by Larry Hicks, Jack Pidgeon. (Olson, Leif) (Entered: 01/31/2014)
31 REPLY in Support of 11 MOTION to Remand MOTION for Attorney Fees MOTION for Costs, filed by Larry Hicks, Jack Pidgeon. (Olson, Leif) (Entered: 02/05/2014)
32 RESPONSE in Opposition to 27 MOTION to Amend, filed by City Of Houston, Annise Parker. (Attachments: # 1 Proposed Order Re Response to Motion to Amend)(Feldman, David) (Entered: 02/07/2014)
33 RESPONSE in Opposition to 25 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motion to Remand, filed by City Of Houston, Annise Parker. (Feldman, David) (Entered: 02/07/2014)
34 SURREPLY to 11 MOTION to Remand MOTION for Attorney Fees MOTION for Costs, filed by City Of Houston, Annise Parker. (Feldman, David) (Entered: 02/11/2014)
35 MEMORANDUM AND ORDER entered DENYING AS MOOT 27 MOTION to Amend, GRANTING 11 MOTION to Remand MOTION for Attorney Fees MOTION for Costs, DENYING AS MOOT 21 Opposed MOTION to Consolidate Lead Case No. 4:13−cv−03768 and Member Case No. 4:13−cv−03755, DENYINMG AS MOOT 9 Opposed MOTION to Intervene, DENYING AS MOOT 25 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motion to Remand. Order of Remand to be issued.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/28/2014)
36 ORDER OF REMAND. This case is remanded to the 310th JDC of Harris County. Case terminated on 8/28/14.(Signed by Judge Lee H Rosenthal) Parties

Case: 4:13-cv-03768 As of: 09/09/2014 09:47 AM CDT 5 of 5 notified.(leddins, 4) (Entered: 08/28/2014)