Case 5:13-cv-00982-OLG Document 1 Filed 10/28/13 Page 1 of 16

IN TIlE UNITFI) STATFS I)ISTRICT COURT FOR IlL SI [RN DISTRI( T O[ I F\ S
SAN ANTONIO I)IVISION

CLEOIATRA l)F LEON, NICOLE

§

DIMETMAN, VICTOR HOLMES, and

§

MARK I 7 IIARISS

§

§

§

Plaintiffs,

§

§ CIVILACTION NO.

V.

§

§

RICK PERRY, in his official capacity as §

Governor of the State of Texas, GREG

§

ABBOTT, in his official capacity as Texas §

Attorney General, GERARI)

§

RICKHOFF, in his official capacity as

§

Bexar County Clerk, and DAVID LAKEY, §

in his official capacity as Commissioner of §

the Texas I)epartment of State Health

§

Services

§

§

Defendants.

§

5:13-cv-982

lLAINTIFFS’ ORIGINAL COMPLAINT FOR DECLARATORY ANI) INJUNCTIVE RELIEF
Plaintiffs Cleopatra De Leon, Nicole 1)imetrnan, Victor (“Vie”) I lolmes, and Mark
Phariss complain of I)efendants and allege:

I.

INTRODUCTION

1. This suit seeks to redress a grave deprivation of constitutional rights that directly

harms a discrete but substantial minority of United States citizens residing in the State of Texas.

Any person has the legal right to marry another person of the opposite se. hut that right is

denied to those citizens who wish to marry another person of the same sex. This unequal

treatment of gay and lesbian citizens is based on longstanding prejudices. and it is repugnant to

the United States Constitution. As the Linited States Supreme Court recently declared, “[t]he

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Constitutions guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group. United 5ates v Windsor, 133 5. Ct. 2675. 2693 (2013) (quoting Dept. o!Agrie. v Moreno, 413 U.S. 528 (1973)). The constitutional guarantee of equality also protects against such disparate treatment when the desire to harm manifests itself in state legislation or state constitutional provisions.
2. The “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Loving v. Virginia, 388 U.S. I, 12 (1967), Numerous Supreme Court cases recognize the important of marriage. It is “among associational rights this Court has ranked as ‘of basic important in our society,’” ML.B. v. S.L.J. 519 U.S. 102, 116(1996); it is a “freedom of personal choice” that is “one of the liberties protected by the Due Process Clause of the Fourteenth Amendment,” Cleveland Rd. o/Edue. v LaFleur. 414 U.S. 632. 639 (1974); and it is the “most important relation in life,” Zablocki v Redhail, 434 U.S. 374, 384 (1978) (quoting !Vfaynardv. Hill, 125 U.S. 190, 205 (1888)). Despite this, Texas not only forbids same-sex couples from enjoying the “vital personal right” of marriage, Texas’ Constitution expressly forbids Texas and its political subdivisions from “creat[ing] or recogniz[ingj any legal status identical or similar to marriage.” Tex. Const., art.
1, § 32.
3. This lawsuit is brought by Ibur citizens, each of whom wishes for the State of Texas to allow and recognize their marriages, but the State of Texas will not—simply because Plaintiffs wish to be married to someone of the same sex. Two of the Plaintiffs served honorably in our nation’s armed forces, defending our freedoms. All of the Plaintiffs contribute to our nation’s well-being as productive and conscientious citizens. Yet the State of

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Texas denies them the same access to the institution of mamage, and its attendant benefits,

enjoyed by every individual who wishes to marry a person of the opposite sex. The State of

Texas has no justification for depriving Plaintiffs of their rights in this way.

4. In Texas, Plaintiffs cannot legally marry their partner before family, friends, and

society—a right enjoyed by citizens who wish to marry a person of the opposite sex. And

should they become married in a state that has established marriage equality, Texas explicitly

voids their marriage. There is no rational basis, much less a compelling government purpose,

for Texas to deny Plaintiffs the same right to marry enjoyed by the majority of society.

Accordingly, Plaintiffs petition this Court for a declaratory judgment that Article I, § 32 of the
Texas Constitution and corresponding statutes violate the Due Process and Equal Protection

Clauses of the Fourteenth Amendment to the United States Constitution. Plaintiffs also petition

this Court for a permanent injunction enjoining Defendants from continuing to deprive

Plaintiffs of their right to marry.

II.

PARTIES

5. Plaintiff Cleopatra Dc Leon is a Texas resident. She legally married Plaintiff

Nicole Dimetman in Massachusetts, and she wants the State of Texas to either recognize her

marriage or allow her to re-marry Plaintiff Dimetman in Texas.

6. Plaintiff Nicole Dirnetman is a Texas resident. She legally married Plaintiff

Cleopatra Dc Leon in Massachusetts, and she wants the State of Texas to either recognize her

marriage or allow her to re-marry Plaintiff Dc Leon in Texas.

7. Plaintiff Mark Phariss is a Texas resident. He wants to marry his long-time

partner, Plaintiff Vie Holmes, in Texas.

8. Plaintiff Vie Holmes is a Texas resident. He wants to marry his long-time

partner, Plaintiff Mark Phariss, in Texas.

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9. Defendants are Texas State officials, and Plaintiffs sue them in their official capacities.
10. Defendant Riek Perry is the Governor of the State of lexas, and Plaintiffs sue him in his official capacity. Plaintiffs will serve Governor Perry pursuant to the Federal Rules of Civil Procedure.
11. Defendant Greg Abbott is the Attorney General of the State of Texas, and Plaintiffs sue him in his official capacity. Plaintiffs will serve Defendant Abbott pursuant to the Federal Rules of Civil Procedure.
12. Defendant Gerard Rickhoff is the County Clerk of Bexar County, Texas, and Plaintiffs sue him in his official capacity. Plaintiffs will serve Defendant Rickhoff pursuant to the Federal Rules of Civil Procedure.
13. Defendant David Lakey, M.D. is the commissioner of the Texas Department of State Health Services, which includes the bureau of vital statistics, and Plaintiffs sue him in his official capacity. Plaintiffs will serve Defendant Lakey pursuant to the Federal Rules of Civil Procedure.
III. JURISDICTION AND VENUE 14. This case raises questions under the Constitution of the United States and 42
U.S.C. § 1983 and, thus, this Court has jurisdiction pursuant to 28 U.S.C. § 1331, 1343(a)(3)
and (4). 2201, and 2202.
15. Venue is proper under 28 U.S.C. § 1391 because Defendant Rickhoff resides in
this district and all Defendants reside in Texas. Venue is also proper in this Court because a substantial part of the events giving rise to this claim occurred in this district.

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IV.

FACTUAL BACKGROUNI)

A. fle Leon and Dinietnian

16. Dc Leon and Dimetman met in 2001. At the time, Dirnetman was running her

own business and Dc Leon was working as a statistical analyst while also serving in the Texas

Air National Guard. Dc Leon is a United States Air Force veteran; she was on active duty for

four years and served six years in the Air National Guard. She was honorably discharged after

ten years of service.

17. Dc Leon and Dimetman started dating in September 2001. They have been in a committed relationship since then. During this time, they supported one another while Dc Leon

applied to and completed graduate school and while Dimetman applied to and completed law

school. Dimetman is now an attorney licensed to practice law in the State of Texas. Dc Leon and Dimetman continue to share finances, live together, and have a loving, stable relationship.

18. As people in love often do, Dc Leon and Dimetman wanted to marry one another, declaring their love and commitment before family, friends, and society. Because they

lived in Texas, they were unable to marry in their home state. As a result, they incurred

significant expense and traveled to Boston, Massachusetts, where they married on September

11, 2009. 19. Dc Leon and Dimetman also wanted a family. In 2011, Dc Leon conceived, and
in 2012, gave birth to C. While Dc Leon is C’s biological parent, Dimetman adopted C. Dc Leon and Dimetman incurred significant expenses to ensure that the State of Texas recognized each as C’s parent. They each dedicate countless hours raising, loving, nurturing, educating,

and caring for C. 20. Dc Leon and Dimetman’s marriage is recognized in the state of Massachusetts.
It would also be recognized in California, Connecticut, Delaware, the District of Columbia,

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Iowa, Maine, Maryland, Minnesota, New Hampshire, New Jersey. New York, Rhode Island,

Washington, and Vermont.

21. Their marriage is not recognized by the State of ixas.

22, Texas’ constitution and statutes prevented Dc Leon and Dimetman from

marrying in Texas.

23. If Texas allowed Dc Leon and Dimetman to marry or recognized their out-of-

state marriage, the federal government would recognize their marriage for all purposes, as

required by the United States Supreme Court decision in United Stales v Windsor. 133 5. Ct.

2675 (June 26, 201 3). As a result of Texas’ constitutional and statutory provisions, however,

the federal government does not recognize their marriage for all purposes.

B. Holmes and Phariss 24. Holmes and Phariss met in the spring of 1997. At the time, Holmes was in the

Air Force and stationed in San Antonio. Phariss was and remains an attorney licensed to

practice law in Texas. They quickly developed a friendship that blossomed into a dating

relationship. On August 9, 1997, they went on their first date. They celebrate August 9 as their

anniversary.

25. After dating for several months, Holmes and Phariss started living together.

Their relationship and love for one another continued to grow. While living together, Holmes,

who joined the Air Force when he was eighteen, began a military program to become a

physician’s assistant. After completing the program, Holmes became an officer, and the Air

Force stationed him in San Diego at the Naval Medical Center.

26. Because Phariss continued to live and work in Texas, he and Holmes started an

eleven year period of extraordinary personal sacrifice to maintain and strengthen their

relationship despite the distance between them. While Holmes was in San Diego, Phariss

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would travel to see I lolmes every few weeks (1 lol mes was generally unable to leave San Diego). The Air Force re-assigned Holmes to the Keesler Medical Center in Biloxi, Mississippi. and Holmes and Phariss began commuting every other week (sometimes more) to see one another. The Air Force later stationed Holmes at the Air Force base in Little Rock. Arkansas. and he and Phariss were able to see each other nearly every weekend. [loimes’ last assignment was at Sheppard Air Force base in Wichita i:alls. ‘I exas. During this time. Holmes and Phariss were able to see one another each weekend and on special occasions during the week.
27. Holmes honorably served our nation for nearly twenty-three years and retired as a Major at the end of 201 0. After eleven years traveling to see one another and maintain and strengthen their relationship. I lolmes and Phariss were able to live together again.
28. On August 9. 2013. 1-lolmes and Phariss celebrated their sixteenth anniversary. 29. Holmes and Phariss want to marry one another and declare their love and commitment to one another before family, tI’iends, and society. 30. Texas’ constitution and statutes prevented Holmes and Phariss from marrying in Texas. On October 3. 2013, holmes and Phariss applied I’or marriage licenses from the Bexar County Clerk. The County ClerLs office refused to issue a marriage license because they are a same-sex couple. 31. If Holmes and Phariss were able to marry, the federal government would recognize their marriage pursuant to the United States Supreme Court’s decision in Windsor.

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C. Texas Denies Same-Sex Couples the Right to Marry or to Attain Any of the Rights Afforded Married heterosexual Couples.
32. [he lexas Constitution defines marriage as ihe union oF one man and one woman. and ii prevents Texas and its political subdivisions from recognizing same—sex marriages. Tex. Consi.. art. 1 . 32. Not only does it prevent same—sex couples from marrying. the Texas Constitution expressly lbrhids Texas and its political subdivisions 1mm creat[ing or recogniz[ing] any legal status identical or similar to marriage.” Id.
33. Reflecting the Texas Constitution. the Texas Family Code prohibits county clerks, including the Bexar County Clerk, from issuing marriage licenses to persons of the
same-sex. Tex. Family Code Ann. § 2.001. The Texas Family Code requires the bureau of
vital statistics to prescribe the information required in a marriage license application, which is
limited to heterosexual couples. id. § 2.002.
34. The Texas Family Code also voids all same-sex marriages and all same-sex civil
unions. Id. § 6.204. Texas expressly denies same-sex couples from the 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.” Id. Thus. the State of icxas nullifies the rights, benefits, and responsibilities that same-sex couples married in another jurisdiction would enjoy if they were heterosexual.

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P. Plaintiffs’ Inability to Mam Causes Substantial Harm. 35. Texas’ constitutional and statutory provisions create a legal system in which civil marriage is exclusively restricted to heterosexual couples. The Texas Constitution and various

statutes den same—sex couples the right to enter into a civil marriage. 36. Plaintiffs su lThred and continue to sufThr substantial and irreparable harm as a
result ot Texas refusal to recognize or allow same—sex marriages. These harms include social

stigma. the loss ol federal rights, and the loss of state rights.

i.

Plaintiffs suffer social stigma as a result of their inability to marry.

37. Marriage plays a unique and central social, legal, and economic role in American

society. Marriage is a valued social institution, and married couples are treated differently than

unmarried couples. Being married reflects the commitment that a couple makes to one another.

and represents a public, legal acknowledgment of the value. legitimacy. depth. and permanence

of the married couple’s private relationship. Legally—recognized marriages conler rights and

responsibilities that are not available to unmarried couples.

38. Texas’ constitutional and statutory prohibitions against recognizing same-sex

marriages convey the State’s view that PlainiilYs’ relationships are of lesser value than relationships of heterosexuals and are unworthy of legal recognition and support. The State’s refusal to recognize same-sex marriages is a very public rejection of Plaintiffs’ most significant relationship, and it harms Plaintiffs, any children Plaintiffs have, and their families. The reftisal to recognize same-sex marriage also invites and facilitates private discrimination against homosexuals and promotes the view that their relationships and families are inferior.
39. By prohibiting same-sex couples from marrying. Texas “places same-sex couples in an unstable position.” “demeans” same-sex couples. “humiliates tens of thousands of children now being raised by same-sex couples,” and “instructs all [Statej officials. and indeed

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all persons with whom same-sex couples interact, including their own children, that their [relationship] is less worthy than the [relationship] of others.” United States v. Windsor, 133 S. Ct 2675,2694-96(2013). Similarly, by refusing to recognize the validity of same-sex marriages legally performed in other states. Texas treats those unions as second-class marriages. mndermin[ing] both the public and private significance of state-sanctioned same-sex marriages” by “tell[ing] those couples. and all the world, that their otherwise valid marriages are unworthy of [Texas’] recognition.” fit at 2693-94.
IL Plaintiffs’ inabffity to many affects numerous federal protections, benefits, and obligations.
40. Texas’ refusal to pennit Plaintiffs to marry or recognize their out-of-state marriage deprives Plaintiffs of numerous federal protections, benefits, and obligations that are available to married same-sex couples. See hi at 2683 (noting that over 1,000 federal laws address marital or spousal status). These federal rights include, among others, having the same
rights as heterosexual married couples in one another’s Social Security benefits, 42 U.S.C. §
416, spousal privileges, seeking protections under the Family and Medical Leave Act 29
U.S.C. § 2612, and federal Medicaid benefits.
41. Same-sex couples residing in Texas cannot rely upon an out-of-state marriage to confer federal protections, benefits, and obligations. Texas same-sex couples who many in another state must contend with substantial uncertainty regarding whether the marriage will be recognized by the federal government for various purposes. For instance, while the Internal Revenue Service recently adopted a “state of celebration” rule in recognizing same-sex marriages, Rev. Ruling 2013-17 (Aug. 30,2013), it is unclear what other federal agencies will follow. In fact, the Department of Labor recently announced that FMLA will apply only to same-sex couples that reside in states recognizing their marriage. See Dept. of Labor, Fact

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Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act (Aug. 2013). And, on September 5, 2013. Major General John K Nichols requested that Defendant Abbott advise him what, if any, actions the Texas Military Forces can take to comply with the Department of Defense’s policy of extending spousal and dependent benefits to same-sex couples without violating the Texas Constitution and Texas statutes.
ilL Plaintiffs’ inability to marry affects numerous state-law protections, benefits, and obligations.
42. Texas’ refusal to marry or recognize Plaintiffs’ marriage also denies Plaintiffs many state4aw benefits. Plaintiffs cannot claim statutory protections afforded married couples
upon the death of a spouse, such as intestacy rights. See Tex. Probate Code § 38.45. The
surviving spouse could not file a wrongful death suit if a spouse is killed. Tex. Cit Prac. &
Rem. Code § 71.004. Same-sex couples cannot claim protections to the partition of their homestead upon the death their spouse. Tex. Const., art 16, § 52. Same-sex couples cannot
rely upon courts to equitably divide property as a heterosexual married couple can if they
divorce, and they are not entitled to a community property presumption. Tex. Family Code ft
3.003.7.001,7.003. Nor can same-sex couples seek spousal maintenance if they separate or
divorce. Id. § 8.051. Additionally, absent conferring power of attorney or other written
agreement, Plaintiffs do not have the right to make health care decisions for one another when necessary, and PlaintilTh do not have the right to make burial decisions and other decisions regarding the disposition and handling of the remains of his or her spouse. Same-sex couples also cannot claim spousal privileges to avoid testiing against one another. Tex. R. Evid. 504.
43. Thus, the Texas Constitution and statutes and Defendants, acting under color of law, are denying Plaintiffs the intangible and tangible benefits of being married.

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E. Texas’ Constitutional and Statutory lrovisions Banning Same-Sex Marriage Are Subject to Heightened Scrutin.
44. Homosexuals ha e faced a long and painful history of societal and government—

sponsored discriminalion.

45. While their sexual orientation bears no relation to their ability to contribute to

society, gay and lesbian individuals historically have been, and continue to be. the target of purposeful discrimination, including state—sanctioned discrimination, due solely to their sexual

orientation.

46. Sexual orientation is immutable and fundamental to all individuals.

47. Gay and lesbian individuals lack the political power to eliminate discriminatory

laws.

48. Because the same—sex marriage prohibitions classify citizens based upon factors

that reflect prejudice and antipathy-—-a view that those in the burdened class are not as worthy or deserving as others.” (‘liv of Cichurne v Cleburne Living (‘Ii:. Inc.. 473 U.S. 432. 440

I 985). the prohibitions must pass heightened judicial scrutiny.

F. Texas’ Refusal to Allow or Recognize Same-Sex Marria2e Does Not Serve Any Covernment Interest.
49. Whether under a strict or heightened scrutiny analysis, or under the more lenient rational basis test, Texas’ prohibition of same-sex marriage does not bear any relation to a legitimate government purpose, much less an important or compelling governmental interest. Excluding same-sex couples from marriage does not lead to increased stability in marriages between heterosexual couples. Permitting same-sex couples to marry does not destabilize

heterosexual marriages. 50. Excluding same-sex couples from marriage does not optimize the child-rearing
environment of married heterosexuals. Children of same-sex marriages do not suffer any harm

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from having same—sex paren s nor are such children more likely to become homosexual. “A great deal of scientific research documents there is no cause-and-effect relationship between parents sexual orientation and children’s well-being.” Press Release, American Academy of Pediatrics. American Academy of Pediatrics Supports Same (lender Civil Marriage (Mar. 21

2013).

V.

REQUEST FOR DECLARATORY RELIEF

CLAIM ONE: DUE PROCESS

5 1. Plaintiffs incorporate by reference paragraphs I through 50, supra. as if fully set

forth herein. 52. The Texas Constitution and slatutes at issue in this case violate liberties
protected by the Due Process Clause of Fourteenth Amendment to the United States

Constitution. both on its face and as applied to Plaintiffs. 53. The Texas Constitution and statutes at issue here impinge on fundamental
liberties by denying same-sex couples the opportunity to marry and deprive them of the recognition of their out-of-state marriages. The State of Texas. through Defendants, refuses to allow same-sex couples to enter into the same officially sanctioned relationship as heterosexual individuals. By denying same—sex couples the right to marry and refi.ising to recognize their out-of-state marriages, Texas stigmatizes same-sex couples, as well as their children and families, and denies them the same dignity. respect. and stature aftbrded ollicially recognized

heterosexual family relationships.

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CLAIM TWO: EQUAL PROTECTION 54. Plainti us incorporate by relirence parauraphs I through 53. vupra. as if fully set lorth herein. 55. The Texas Constitution and statutes at issue here violate the Equal Protection (‘lause of the Fourteenth Amendment to the United States Constitution. both on its face and as applied to Plaintiffs. 56. Texas’ constitutional and statutory law restricts civil marriage to heterosexuals. Same-sex couples are therefore unable to marry persons of their choice, Thus, Texas law treats similarly-situated people differently by permitting heterosexual couples to marry, but denying that right, and the heneflis which come with that right, to same-sex couples. Because same-sex couples are unable to marry, they are unequal in the eves of the law and their lhmilies are denied the same respect as lärnilies of heterosexuals. By explicitly denying civil marriage to same-sex couples. Texas’ ban on same-sex marriage discriminates on the basis of sexual orientation. 57. The disadvantage fexas imposes on same—sex couples is the result of disapproval or animus against a politically unpopular group. The Texas constitution and statutes at issue in this lawsuit deny same-sex couples, but not others, the right to marry. Thus, the Texas Constitution and the statutes at issue in this case violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because they relegate homosexuals to a disfavored legal status, thereby creating a category of “second class citizens.” 58. The Texas Constitution and the statutes at issue in this case also violate the Equal Protection Clause because they discriminate on the basis of sex by distinguishing between heterosexual couples and same-sex couples. Thus. the limitation on civil marriage

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depends upon an individual person’s sex; a man who wishes to marry a man may not do so because he is a man, and a woman may not marry a woman because she is a woman.
CLAIM THREE: VIOLATION OF 42 tJ.S,C. § 1983
59. Plaintiffs incorporate by reference paragraphs 1 through 58, supru. as if fully set forth herein.
60. Insofar as Defendants, acting under color of state law. enforce Texas’ constitutional and statutory terms denying Plaintiffs the right to marry, Defendants are depriving and will continue to deprive Plaintiffs of numerous rights secured by the United
States Constitution in violation of 42 U.S.C. § 1983.
IRREPARABLE HARM 61. Plaintiffs incorporate by reference paragraphs I through 60, supra, as if fully set forth herein. 62. Plaintiffs are severely and irreparably harmed by Texas’ prohibition of same-sex marriages and Texas’ refusal to recognize same-sex marriages legally performed in other states. By way of example, Plaintiffs are denied their constitutional rights to marry and are forced to suffer the severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma caused by the inability to marry the ones they love and have society recognize their marriages. 63. Each day that Plaintiffs are denied the freedom to marry, or have their marriage recognized by Texas, they suffer irreparable harm as a direct result of Defendants’ violation of their constitutional rights. 64. An actual and judicially cognizable controversy exists between Plaintiffs and Defendants regarding Texas’ refusal to allow or recognize same-sex marriage.

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PR A\ FR \VHEREIORE. Plaintiffs respectfull\ request that the Court enler an Order including or

directing the fidloing relief:

a.

Issue declaratory judgment that Article 1. § 32 ol’ the Texas Constitution and the

l’exas statutes at issue in this case, as applied to Plaintilts. violate the l)ue Process and Equal

Protection Clauses ol the Fourteenth Amendment to the United States Constitution and 42 U.S.C.

§ 1983;
b.

Issue a permanent injunction barring enforcement or application of Texas’

constitutional and statutory provisions at issue herein;

c.

Award Plaintiffs their reasonable costs. expenses, and attorneys lI.es; and

d. For such other relief the Court deems proper. just and equitable.

Respectfully submitted,

AKIN GIfMP STRAUSS HAUER & FELL) LLP

d i

7

1

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/1

1/

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I

/ ___akChasno1Y(StN 04153500)

bchasnoffJakingump.corn

//

Daniel McNeel Lane Jj4 (513N 0078A441

Frank Stenger-Castro (SBN 19143500) fscastroakingurnp.corn 300 Convent Street, Suite 1600 San Antonio, Texas 78205 Phone: (210) 281-7000 Fax: (210) 224-2035

Attorneys for Plaintiffs

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 Case 5:13-cv-00982-OLG Document 28 Filed 11/27/13 Page 1 of 61

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CLEOPATRA DE LEON, NICOLE

§

DIMETMAN, VICTOR HOLMES, and §

MARK PHARISS

§

§

Plaintiffs,
v.

§
§
§ CIVIL ACTION NO. 5:13-cv-982-OLG
§

§

RICK PERRY, in his official capacity as §

Governor of the State of Texas, GREG

§

ABBOTT, in his official capacity as Texas §

Attorney General, GERARD

§

RICKHOFF, in his official capacity as

§

Bexar County Clerk, and DAVID LAKEY, §

in his official capacity as Commissioner of §

the Texas Department of State Health

§

Services

§

§

Defendants.

§

PLAINTIFFS' OPPOSED MOTION FOR PRELIMINARY INJUNCTION ENJOINING DEFENDANTS FROM ENFORCING TEXAS' SAME-SEX MARRIAGE BAN

Case 5:13-cv-00982-OLG Document 28 Filed 11/27/13 Page 2 of 61

TABLE OF CONTENTS

PreliminaryStatement ...................................................................................................................... 1

FACTUALBACKGROUND ..........................................................................................................5

1.

Plaintiffs' Background .............................................................................................5

A. Dc Leon and Dimetman Are Lawfully Married and Proud Parents.............5

B. Holmes and Phariss Have Been Together More Than 16 Years and

Want To Marry One Another........................................................................ 6

II. Texas' Constitution and Statutes Unconstitutionally Ban Same-Sex

Marriage ................................................................................................................... 7

A. The Texas Legislature Banned Same-Sex Marriage in 1997 And

Broadened the Ban By Enacting Texas' Defense of Marriage Act in

2003 ..............................................................................................................7

B. After Twice Banning Same-Sex Marriage In Its Statutes, Texas

Added A Constitutional Amendment Banning Same-Sex Marriage ............ 9

III. Defendants Are Responsible For Enforcing Texas's Marriage Prohibition ........... 11

IV. Section 32 Causes Numerous Harms To Plaintiffs and All Similarly

Situated Same-Sex Couples ................................................................................... 11

A. Plaintiffs' Inability To Marry Affects Numerous Federal

Protections, Benefits, And Obligations ...................................................... 11

B. Plaintiffs' Inability To Marry Affects Numerous State-Law

Protections, Benefits, And Obligations...................................................... 13

ARGUMENT

Case 5:13-cv-00982-OLG Document 28 Filed 11/27/13 Page 3 of 61
C. Texas' Same Sex Marriage Ban Fails Both Heightened Scrutiny And Rational Basis Examination............................................................... 30 1. Rather than Encouraging Stable Environments for Procreation, The Same-Sex Marriage Ban Destabilizes Them.............................................................................................. 32 2. Rather Than Encouraging Stable Environments for ChildRearing, The Same-Sex Marriage Ban Destabilizes The Environment For All Children of Same-Sex Couples .................... 36 3. Section 32 Impermissibly Targets Homosexuals ........................... 40
D. The Refusal To Recognize Same-Sex Marriages Lawfully Performed In Other States Deprives Plaintiffs De Leon and Dimetman Equal Protection And Due Process ..........................................41
E. Baker v. Nelson Is No Longer Binding Precedent Because Subsequent Cases Undermined Its Reasoning ........................................... 45
II. The Court Should Issue A Preliminary Injunction Against Defendants' EnforcementOf Section 32 ....................................................................................47

Case 5:13-cv-00982-OLG Document 28 Filed 11/27/13 Page 4 of 61

TABLE OF AUTHORITIES

CASES

Page(s)

Able v. United States,

155 F.3d 628 1998) 29 (2d Cir.

.....................................................................................................

Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) 19 .................................................................................................................

Baker v. Nelson,

N.W.2d 191

185 (Minn. 1971) ........................................

45,46

Baker v. Nelson,

409 810 U.S.

(1972) ........................................................

15,45

\ Baker v. State,

RM 744 A 7d

(Vt

--..--'-.

1--Q-Q-OI

33,36

Baker v. Wade,

29 47 /b9 1'.2.d

1985) (tIl Cir.

20, 46, .......................................................................................

Bd. of Trs. of Univ. ofAla. v. Garrett,
531 U.S. 356 (2001) 33 .................................................................................................................

Ben-Shalom v. Marsh,

454 29 881 F.2d

1989) (7th Cir.

20, 28, .......................................................................................

Bowen v. Gilliard,

483 587 U.S.

(1987) ........................................................

18

Bowers v, Hardwick,

478 186 (1986) U.S.

........................................................

.20

Braddock v. Taylor,

592 S.W.2d 40 (Tex. Civ. App. 1979) ............................

41

Carey v. Population Servs. Int'l,

431 678 (1977) U.S.

........................................................

17

Chambers v. Florida,

309 227 U.S.

(1940) ........................................................

3

Childers v. Dallas Police Dep 't,

513 F. Supp. 134 (N.D. Tex. 1981) ................................

22

City of Cleburne, Tex. v. Cleburne Living Ctr.,

473 432 (1985) U.S.

31 23, ...............................................................................................17, 18,

ill
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Case 5:13-cv-00982-OLG Document 28 Filed 11/27/13 Page 5 of 61

City of Dallas v. England, 846 S.W.2d 957 (Tex. Ani. 1993 ........................................................................................... 22

Clark v. .Jeter,

486 U.S. 456 (1988) ...........................................................

30

DeerfIeld Med. Ctr. v. City ofDeerfield Beach,
661 F. 2d 328 (5th Cir. 1981) ............................................

14, 47, 48

Dep 't ofAgri. v. Moreno, 413 U.S. 528 (1973) ...........................................................

.40, 42

Duncan v. Cessna Aircraft Co.,

665 S.W.2d 414 (Tex. 1984) ..............................................

42

Elrod v. Burns, 427 U.S. 347 (1976) .................................................................................................................48

Equality Found. of Greater Cincinnati, Inc. v. Cincinnati,
860 F. Supp. 417 (S.D. Ohio 1994) ......................................................................................... 23

Frontiero v. Richardson, 411 U.S. 677 (1973) ........................................................................................................... 28,46

Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002) ................................................................................................... 47

Goldman v. Weinberger, 475 U.S. 503 (1986) .................................................................................................................29

Golinski v. US. Office ofPers. Mgmt.,
824 F. Supp. 2d 968 (N.D. Cal. 2012) ............................................................................. passim

Goodridge v. Dep 't of Public Health,
798 N.E.2d 941 (Mass. 2003) ....................................................................................... 33, 34, 39

Griswold v. Connecticut, 381 U.S. 479 (1965) ........................................................................................................... 15,44

Heady. Newton, 596 S.W.2d 209 (Tex. App. 1980) ........................................................................................... 22

Heller v. Doe, 509 U.S. 312 (1993).................................................................................................................31

Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) ................................................................................................. 25

iv
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Case 5:13-cv-00982-OLG Document 28 Filed 11/27/13 Page 6 of 61
Hicks v, Miranda, 422 U.S. 332 (1975) ................................................................................................................. 46
High Tech Gays v. Def Indus. Sec. Clearance Office,
895 F.2d 563 (9th Cir. 1990) ....................................................................................... 19, 28, 29 Husband v. Pierce,
800 S.W.2d 661 (1990) ............................................................................................................ 41
Ill. State Bd. of Elec. v. Socialist Workers,
440 U.s. 173 (1979) ................................................................................................................. 46
In re Marriage Cases, 43 Cal.4th 757 (2008) .............................................................................................................. 28
In re Marriage of J.B. and H.B.,
326 S.W.3d 654 (Tex. App. 2010) ........................................................................................... 42
Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir. 1996) ..................................................................................................... 47
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ................................................................................................... 30
Jornaleros de Las Palmas v. City ofLeague City,
Civil Action No. H-i 1-2703, 2013 WL 2180013 (S.D. Tex. May 17, 2013) .......................... 48
Lawrence v. Texas, 539 U.S. 558 (2003) ......................................................................................................... passim
Loving v. Virginia, 388 U.S. 1(1967) ....................................................................................................... 1,2, 15, 16
Lyng v. Castillo, 477 U.S. 635 (1986) ................................................................................................................. 18
ML.B. v. S.L.J., 519 U.S. 102 (1996) ............................................................................................................. 1,15
Mandel v. Bradley, 432 U.S. 173 (1977) .................................................................................................................45
Mass. Bd. of Ret. v. Murgia,
427 U.S. 307 (1976) ................................................................................................................. 18
Massachusetts v. U.S. Dep't of Health & Human Servs., 682F.3d1 (lstCir. 2012) ........................................................................................................ 16
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Case 5:13-cv-00982-OLG Document 28 Filed 11/27/13 Page 7 of 61

Meyer v. Nebraska,

262 U.s. 390 (1923) .....................................................................

15

Nevada v, Hall,

440 U.S. 410 (1979) .....................................................................

.42

Nevarez v. Bailon,

____2__R_7_S__W_7__d_7__1__(_T_h_y__(_'i_v__A_nn 1Q(V

42

Nyquist v. Mauclet, 432 U.S. 1(1977) .....................................................................................................................24

Obergefell v. Kasich,
No. 1:13cv-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013) ..................................... 44,45

Pedersen v. Office ofPers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012) .............................................................................. passim

Perry v. Brown,

671 F.3d 1052 (9th Cir 2012) ...............................................................................

.34

Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) ..................................................................

passim

Pers. Admin. of Mass. v. Feeney,

442 U.S. 256 (1979) ..............................................................................

18

Planned Parenthood of Southeastern Pa. v. Casey,

505 U.S. 833 (1992) ..............................................................................

2,15

Plessy v. Ferguson,

1IIS S'7(1RQf

.2

Plyler v. Doe, 457 U.S. 202 (1982) ......................................................................................................... passim

Portwood v. Poriwood, 109 S.W.2d 515 (Tex. Civ. App. 1937) ................................................................................... 41

Romer v. Evans, 517 U.S. 620 (1996) ......................................................................................................... passim

Seth v. Seth, 694 S.W.2d 459 (Tex. App. 1985) ........................................................................................... 42

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) .................................................................................................................42

vi
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Case 5:13-cv-00982-OLG Document 28 Filed 11/27/13 Page 8 of 61
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) ................................................................................................... 25
Tex. Emp 'r Ins. Ass'n v. Borum, 834 S.W.2d 395 (Tex. App. 1992) ........................................................................................... 41
Thomas v. Bynum, No. 04-02-00036-CV, 2002 WL 31829509 (Tex. App. Dec. 18, 2002) .................................. 22
Turner v. Safley, 482 U.S. 78(1987) ....................................................................................................... 16,31,45
United States v. Virginia,
518U.S.515(1996) ................................................................................................................. 31
United States v. Windsor, 133 S. Ct. 2675 (2013) ............................................................................................................... 2
Varnum v. Brien, 763 N.W.2d 862 (Ia. 2009) .........................
Watkins v. US. Army, 875 F.2d 699 (9th Cir. 1989) ......................
Williams v. Illinois, 399 U.S. 235 (1970) ....................................
Zablocki v. Redhail, 434 U.S. 374 (1978) ....................................
STATUTES
8 U.S.C. § I 182(a)(4) (1982) ...............
29 U.S.C. § 2612 ....................................
42 U.S.C. § 416

Case 5:13-cv-00982-OLG Document 28 Filed 11/27/13 Page 9 of 61
Immigration and Nationality Act Pub. L. No. 89-236 § 15(b), 79 Stat. 911 (amended Oct. 3, 1965) .......................................................................... 21
Tex. Civ. Prac. & Rem. Code § 71.004

Case 5:13-cv-00982-OLG Document 28 Filed 11/27/13 Page 10 of 61
Am. Psychiatric Ass'n, Position Statement on Support of Legal Recognition of Same-Sex
Civil Marriage (July 2005) ...................................................................................................... 37 Am. Psychological Ass'n, Answers to Your Questions For A Better Understanding of
Sexual Orientation & Homosexuality ...................................................................................... 38 Am. Psychological Ass'n, Sexual Orientation, Parents, & Children (July 2004) ........................ 38
American Forces Press Service, Hagel: States Denying Same-Sex Family Benefits Must Comply

Case 5:13-cv-00982-OLG Document 28 Filed 11/27/13 Page 11 of 61
H.B. 3232, H.B. 1701, and S.B. 538, 83rd Leg., Reg. Sess. (Tex. 2013) ...................................... 22 H.B. 38, 78th Leg., Reg. Sess. (Tex. 2003) ..................................................................................... 7 H.J.R. 6, 79th Leg., Reg. Sess. (Tex. 2005) ..................................................................................... 9 H.J.R. Res. 6, 79th Leg. (Tex. 2005) ............................................................................................. 27 House Journal, 79th Leg., Reg. Sess. (Tex. Apr. 25, 2005) ............................................................. 9 House Research Org., Bill Analysis, 79th Leg., Reg. Sess. (Tex. 2005) ................................... 9, 32 House Research Org., Daily Floor Report, 78th Leg., Reg. Sess. (Tex. April 29, 2003) ................ 8 House Research Org., Focus Report on Amendments Proposed for the 2005 Ballot, 79th
Leg., Reg. Sess. (Tex. 2005) .................................................................................................... 10 House Research Org., Report on Major Issues, 78th Leg., Reg. Sess. (Tex. 2003) .................. 8, 40 Janet Elliott, Gay Marriage Ban Put in Texas Constitution, Houston Chronicle, Nov. 9,
2005

Case 5:13-cv-00982-OLG Document 28 Filed 11/27/13 Page 12 of 61
Preliminary Statement Plaintiffs request that this Court immediately enter an order preliminarily enjoining Defendants from enforcing Article I, section 32 of the Texas Constitution and corresponding provisions in the Texas' Family Code (collectively, "Section 32).1 Section 32 denies Plaintiffs access to the institution of marriage, its numerous rights, privileges, and responsibilities, for the sole reason that they love and wish to be married to a person of the same sex. As such, Section 32 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Constitution requires that these laws be declared unenforceable. Justice requires that this relief be afforded immediately, fully, and for all time. In a society that celebrates marriages of long duration, these Plaintiffs are unlikely ever to celebrate the milestones many of our parents achieved because Section 32 expressly deems them unworthy to be married, even while it makes that institution available virtually without restriction to all heterosexual citizens of lawful age. Time and time again, the Supreme Court has recognized and affirmed the fundamental right to marry. "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Loving v. Virginia, 388 U.S. 1, 12 (1967). It is "the most important relation in life" and of "fundamental importance for all individuals." Zablocki v. Redhail, 434 U.S. 374, 384 (1978). Because of its importance and fundamental nature, "[c]hoices about marriage" are "sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect." ML.B. v. S.L.J., 519 U.S. 102, 116 (1996) (internal quotation marks omitted).
The statutes include Tex. Fam. Code § 2.00 1 and Tex. Fam. Code § 6.204.
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Section 32 infringes on the fundamental due process right to marry, which is "central to personal dignity and autonomy" and "central to the liberty protected by the Fourteenth Amendment." Lawrence v. Texas, 539 U.S. 558, 574 (2003) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851(1992)). "Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Id. Preventing samesex couples in Texas from marrying and refusing to recognize same-sex marriages performed in other states violates due process by denying Texan same-sex couples, like Plaintiffs, the autonomy and liberty that the Constitution guarantees them.
Section 32 also violates the basic rule of equal protection that "the Constitution 'neither knows nor tolerates classes among citizens." Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). As the Supreme Court recently recognized, restricting the rights, benefits, and responsibilities of marriage to opposite-sex couples only "demeans the [same-sex] couple, whose moral and sexual choices the Constitution protects." United States v. Windsor, 133 5. Ct. 2675, 2694 (2013) (citing Lawrence, 539 U.S. at 588). The Constitution prohibits laws that "impose a disadvantage, a separate status, and so a stigma upon" gay men and lesbians. Id.; see Lawrence, 539 U.S. at 574 (2003); Romer,
517 U.S. at 635. Just as the judicial branch protected the, fundamental right to marry and established that
discriminatory laws could not prevent mixed-race couples from exercising that right, the courts again must step in, protect the marriage right, and establish that Section 32 is unconstitutional. This Court should follow the Supreme Court's lead in Windsor, Lawrence, Romer, Loving, and so many other cases that have enshrined the right to marry as a fundamental right and recognize
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that governments must give all of its citizens' choice of spouses the "same status and dignity" regardless of whether they are same- or opposite-sex. Windsor, 133 S. Ct. at 2689.
Unless this Court takes immediate action, Plaintiffs and others like them will continue to
suffer irreparable harmnot in some theoretical sense, but in real human terms. This morning,
Plaintiffs woke up in a world unimaginable to the majority of citizens, a world in which Plaintiffs
are denied equal rights, and thus deemed inferior, because of their sexual orientationa
characteristic as immutable as their sex, their skin color, or their nationality. Today, children of same-sex parents attended school and suffered the stigma that their parents are not permitted to wed, that they are the product of relationships between citizens the state deems unworthy and inferior, and they will wear that badge of inferiority to bed tonight. Today, or perhaps tomorrow, someone in a long-term committed same-sex relationship will die without ever having been married to the person he or she loves, or without having their marriage recognized by the State of
Texas. There is no order this Court can enter at some later date that will heal the wounds
inflicted today, or restore the status deprived today, or repair the harm already incurred today.
But if this Court determines that Plaintiffs are likely to prevail on the merits of their claimsas it should, as it mustthen the Court must afford preliminary relief as soon as practicable and
forestall the harm that is certain to occur tomorrow, and the next day, and the day after that. This Court is uniquely charged to afford these Plaintiffs relief. "Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement." Chambers v. Florida, 309 U.S. 227, 241 (1940).
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Defendants are likely to come forth with justifications for this inequitable law that are not only unfounded, but transparently false. There exist many sound, beneficial purposes to
marriage, but all of them apply with equal force to same-sex unions, and none of them are undermined by permitting citizens of the same sex to marry. Strip away the fictions and pretext
surrounding Section 32, and it becomes clear that Section 32 is law only because there are votes and political power to be won by fomenting fear and prejudice at an unpopular minority.
Treating all citizens equally under the law is not merely an aspiration but a constitutional
dictate. If morality is to be our guide, as Defendants may argue, let it be that fine quality of
morality enshrined in the Constitution, which requires that we treat all citizens with equal dignity
and respect under the law. It is the ingenious character of the Constitution that this equal protection serves to permit members of minority groups to become full participants in society, so
that their talents and skills may be harnessed for the greater good. Denying gay and lesbian citizens of Texas an equal right to marry signifies that they are inferior to other citizens. This not only gives the green light to those who would exclude, mistreat, and demean them based on their sexual orientation, but it perpetuates such discrimination. Unless and until this Court protects Texas' gay and lesbian citizens, the history of discrimination and prejudice will continue unabated.
Accordingly, this Court should find: (1) that Plaintiffs have established a likelihood of success on the merits, i.e., that Section 32 is unconstitutional; and (2) Plaintiffs are irreparably harmed by Texas' refusal to permit them to marry or have their out-of-state marriages recognized. The Court should therefore award Plaintiffs injunctive relief and immediately enjoin enforcement of Section 32.
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FACTUAL BACKGROUND I. Plaintiffs' Background
A. Dc Leon and Dimetman Are Lawfully Married and Proud Parents.
De Leon and Dimetman have been in a committed relationship since they met in 2001.
Ex. 1, Dee!. of Cleopatra De Leon in Supp. of Pls' Mot. for Prelim. Inj. ("De Leon Dec!.") ¶J 1,3; Ex. 2, Dee!. of Nico!e Dimetman in Supp. of Pls' Mot. for Prelim. Inj. ("Dimetman Dee!.") ¶J 1-2. De Leon is a United States Air Force veteran; she was on active duty for four years and served six years in the Texas Air National Guard. De Leon Dee!. ¶ 2; Dimetman Deel. ¶ 1. She was honorab!y discharged after ten years of service. De Leon Dee!. ¶ 2; Dimetman Dee!. ¶ I. At
the time she met Dimetman, De Leon was serving in the Texas Air National Guard, while a!so working as a statistiea! analyst. De Leon Dee!. ¶ 2; Dimetman Dee!. ¶ 1. Dimetman was running her own business. De Leon Dee!. ¶ 1; Dimetman Dee!. ¶ 1.
As a couple, De Leon and Dimetman have supported one another as they pursued further education. De Leon Dee!. ¶J 3-5; Dimetman Deel. ¶J 2-4. During their time together, De Leon attended and completed graduate school, while Dimetman went to law school and became an
attorney. De Leon Dccl. ¶J 4-5; Dimetman Dee!. ¶J 3-4. De Leon and Dimetman continue to share finances, live together, and have a loving, stab!e relationship. De Leon Dee!. ¶ 3;
Dimetman Deci. ¶ 2. De Leon and Dimetman wanted to marry one another in Texas, but Section 32 prevented
them from doing so. Dc Leon Deel. ¶ 6; Dimetman Dee!. ¶ 5. They therefore chose to marry in a state that recognized same-sex marriage. De Leon Deel. ¶ 6; Dimetman Deel. ¶ 5. They trave!ed to Boston, Massachusetts, where they married on September 11, 2009. De Leon Dee!. ¶ 6; Dimetman Dee!. ¶ 5.
5
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De Leon and Dimetman are parents to their child, C. De Leon Dee!. ¶ 7; Dimetman Dccl. ¶ 6. Both De Leon and Dimetman share child-rearing duties and obligations, and each considers herself C's mother. De Leon Dee!. ¶ 7; Dimetman Decl. ¶ 6. De Leon is C's biological mother. De Leon Dccl. ¶ 7; Dimetman Dee!. ¶ 6. Because Texas law does not recognize same-sex marriage, Dimetman could not be considered C's parent automatically. Therefore, to obtain recognition as C's parent, Dimetman formally adopted C, at considerable expense. De Leon Dccl. ¶ 7; Dimetman Dee!. ¶ 6.
B. Holmes and Phariss Have Been Together More Than 16 Years and Want To Marry One Another.
Holmes and Phariss met in the spring of 1997. Ex. 3, Dccl. of Victor Holmes in Supp. of Pls' Mot. for Prelim. Inj. ("Holmes Dee!.") ¶ 1; Ex. 4, Dec!. of Mark Phariss in Supp. of Pis'
Mot. for Prelim. lnj. ("Phariss DecI.") ¶ 1. At the time, Holmes was in the Air Force and stationed in San Antonio. Holmes Dee!. ¶ 1; Phariss DecI. ¶ 1. Phariss was and remains an attorney licensed to practice law in Texas. Holmes Dee!. ¶ 1; Phariss Dee!. ¶ 1. They quickly developed a friendship that blossomed into a dating relationship. Holmes Dee!. ¶ 2; Phariss Deel. ¶ 2. On August 9, 1997, they went on their first date, and they celebrate August 9 as their anniversary. Holmes Dccl. ¶ 1; Phariss Decl. ¶ 2.
After dating for several months, Holmes and Phariss started living together. While living together, Holmes, who had joined the Air Force when he was eighteen, began a military program to become a physician's assistant. Holmes Decl. ¶ 3; Phariss Decl. ¶ 3. Upon completing the program, the Air Force stationed Holmes at different bases throughout the country. Because Phariss continued to live and work in Texas, he and Holmes spent the next eleven years in a long-distance relationship. Holmes Dcc!. ¶ 4; Phariss Dccl. ¶ 4. Depending on where Holmes was serving, Phariss and Holmes would travel as often as every week to every few weeks to see
6
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each other. Holmes DecI. ¶ 4; Phariss Decl. ¶ 4. During Holmes' final assignment, at Sheppard Air Force base in Wichita Falls, Texas, Holmes and Phariss generally saw one another each weekend and on special occasions during the week. Holmes Decl. ¶ 4; Phariss DecI. ¶ 4.
Holmes honorably served our nation for nearly twenty-three years and retired as a Major at the end of 2010. Holmes Deci. ¶ 5; Phariss Deci. ¶ 5. After enduring an eleven-year longdistance relationship, Holmes and Phariss were able to live together again. Holmes Deci. ¶ 5; Phariss Decl. ¶ 5.
Holmes and Phariss want to get married. Holmes Deel. ¶ 6; Phariss Deci. ¶ 6. On October 3, 2013, they applied for a marriage license from the Bexar County Clerk Defendant Rickhoff's office, but Defendant Rickhoff refused to issue one because Holmes and Phariss are both men. Holmes Decl. ¶ 6; Phariss Dccl. ¶ 6.
II. Texas' Constitution and Statutes Unconstitutionally Ban Same-Sex Marriage. A. The Texas Legislature Banned Same-Sex Marriage in 1997 And Broadened the Ban By Enacting Texas' Defense of Marriage Act in 2003. Texas Family Code § 2.001, enacted in its current form in 1997, prohibits the county
clerk of any Texas county from issuing a license for the marriage of persons of the same sex.
In 2003, the Texas Legislature further amended the Texas Family Code to add § 6.204,
which, among other things, prohibits recognition in Texas of lawful same-sex marriages from otherjurisdictions. Ex. 11, S.B. 7,78th Leg., Reg. Sess. (Tex. 2003); Ex. 12, H.B. 38, 78th Leg., Reg. Sess. (Tex. 2003). Section 6.204 declares void all marriages between persons of the same
sex and all civil unions. Tex. Fam. Code § 6.204(b). Section 6.204 also prohibits the state and
any of its agencies and political subdivisions from giving effect to any: (1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same
sex or a civil union in this state or in any other jurisdiction; or
7
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(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 in any other jurisdiction. Tex. Fam. Code § 6.204(c). Supporters of § 6.204 claimed: The procreative marriage relationship between a man and a woman is a fundamental institution whose purpose is the propagation of the species in humanity's collective interest. The state has an interest in protecting this relationship, because it gives women and children the surest protection against poverty and abuse, provides for the healthy psychological development of children, and avoids health risks of same-sex relations and promiscuity. The state's recognition of same-sex marriages would undermine the institution of marriage and society's ability to transmit its values to younger generations. Ex. 13, House Research Org., Report on Major Issues, 78th Leg., Reg. Sess., at 83 (Tex. 2003).
In addition to the grounds cited in the legislative report, supporters of the bill also claimed it was necessary to prohibit the recognition of out-of-state civil unions because recognizing civil unions: (1) "would create a new class of children without mothers or fathers"
that "would increase costs to corporations and governmental entities" because a family headed by same-sex parents could not fulfill the children's needs; (2) "could lead to the recognition of
bigamy, voluntary incest, pedophilia, and group marriage" and (3)" [i]f the state does not draw
the line here, it would be difficult to draw anywhere." Ex. 14, House Research Org., Daily Floor Report, 78th Leg., Reg. Sess., at 27-29 (Tex. April 29, 2003).
As Representative Chisum, one of the sponsors of the legislation, stated: "This bill does discriminate. It allows only for a man and a woman to be married in this state and to be recognized as married in this state. This bill does discriminate against any other kind of marriage." Ex. 15, Rachel Stone, Same-Sex Marriage Ban Goes to Perry; Governor Expected to
8
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Sign Bill that Got Only 9 'No' Votes in House, San Antonio Express-News, May 1, 2003, at 6A (emphasis added).
B. After Twice Banning Same-Sex Marriage In Its Statutes, Texas Added A Constitutional Amendment Banning Same-Sex Marriage.
Article I, section 32 of the Texas Constitution began as H.J.R. 6, which proposed to amend the Texas Constitution to define marriage to "consist only of the union of one man and
one woman." Ex. 16, H.J.R. 6, 79th Leg., Reg. Sess. (Tex. 2005). On April 25, 2005, subdivision (b) was added to H.J.R. 6, which would expressly bar the state and any political subdivision thereof from creating or recognizing any legal status identical or similar to marriage. Ex. 56, House Journal, 79th Leg., Reg. Sess., at 2202 (Tex. Apr. 25, 2005).
The legislative history of H.J.R. 6 shows that the amendment was supported by the same purported purposes as § 6.204. The primary argument in support of H.J.R. 6 was:
[T]raditional marriage consisting of a man and a woman is the basis for a healthy, successful, stable environment for children. It
is the surest way for a family to enjoy good health, avoid poverty,
and contribute to their community. The sanctity of marriage is fundamental to the strength of Texas' families, and the state should
ensure that no court decision could undermine this fundamental value. Ex. 17, House Research Org., Bill Analysis, 79th Leg., Reg. Sess., at 3-4 (Tex. 2005). Not only did the authors of the amendment draft the amendment to preclude same-sex couples from marrying, but they also drafted it to preclude any "separate but equal" status, such as civil unions. According to supporters of the amendment, "[t]his constitutional provision also would protect the definition of marriage by ensuring that civil unions were not permitted in the future. Civil unions are a way for same-sex couples to circumvent laws protecting marriage by creating a legal arrangement that is substantially the same as marriage in all but the name." Ex. 18,
9
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House Research Org., Focus Report on Amendments Proposed for the 2005 Ballot, 79th Leg., Reg. Sess., at 9 (Tex. 2005).
Following votes in both houses of the Texas legislature, H.J.R. 6 passed. Under Texas law, the governor's approval is not necessary to put a proposed constitutional amendment on the ballot. See Tex. Const. art. 17, § 1(a). Nevertheless, in early June 2005 Governor Perry
ceremonially signed the proposed constitutional amendment at the Calvary Christian Academy in
Fort Worth. Ex. 19, Jessica Leeder, Parental Consent Bill Signed into Law: Ceremony at Christian School in Fort Worth Draws 250 Protesters, Dallas Morning News, June 6, 2005, at 1A. After doing so, a reporter asked Perry what he would say to gay and lesbian military veterans who wanted to live in Texas. His response: "Texas has made a decision on marriage, and if there's a state with more lenient views than Texas, then maybe that's where they should live." Ex. 10, R.A. Dyer, Gay-rights group demands apology, Fort Worth Star-Telegram, June 10, 2005, at B5. In short, those denied equal protection under the laws of the State of Texas by virtue of Proposition 2 should "self-deport" to a state where they may enjoy their constitutional rights.
After approval by Texas' legislature and Defendant Perry's unnecessary approval, H.J.R. 6 was on the ballot in 2005 as Proposition 2. Proposition 2 passed with approximately 76% of the vote. See Ex. 20, Janet Elliott, Gay Marriage Ban Put in Texas Constitution, Houston Chronicle, Nov. 9, 2005, at Al; Ex. 48, Office of the Texas Secretary of State, Race Summary Report, 2005 Constitutional amendment Election (Nov. 8, 2005). As a result, Article 1 (the Bill of Rights) of the Texas Constitution included a new Section 32:
(a) Marriage in this state shall consist only of the union of one
man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.
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Tex. Const. art. 1, sec. 32.
III. Defendants Are Responsible For Enforcin2 Texas's Marriage Prohibition. Defendants Rick Perry and Greg Abbott are the Governor and Attorney General of the
State of Texas, and they are responsible for executing and defending the laws and the Constitution of the State of Texas. Tex. Const. art. 16, sec. 1.
Defendant Gerard Rickhoff is the County Clerk of Bexar County, Texas, which is the
county where Holmes and Phariss sought a marriage license. Under Texas law, a County Clerk, must provide marriage applications, issue marriage licenses, and determine whether individuals meet the requirements for marriage. Tex. Fam. Code § 2.00 1(a), 2.002, 2.004(a), 2.005, 2.008.
Defendant David Lakey is the commissioner of the Texas Department of State Health Services, which includes the bureau of vital statistics. Tex. Health & Safety Code § 191.002. Lakey, through the bureau of vital statistics, is responsible for prescribing and furnishing to local clerks' offices the marriage forms that require applicants to list a "bride" and a "groom." Tex.
Health & Safety Code § 194.0011(a); Tex. Fam. Code § 2.004.
IV. Section 32 Causes Numerous Harms To Plaintiffs and All Similarly Situated SameSex Couples. A. Plaintiffs' Inability To Marry Affects Numerous Federal Protections, Benefits, And Obligations. Texas' refusal to permit Plaintiffs to marry or recognize their out-of-state marriage
deprives Plaintiffs of numerous federal protections, benefits, and obligations that are available to married same-sex couples. See Windsor, 133 S. Ct. at 2683 (noting that over 1,000 federal laws
address marital or spousal status). These federal rights include, among others, having the same rights as heterosexual married couples in one another's Social Security benefits, 42 U.S.C. § 416, seeking protections under the Family and Medical Leave Act, 29 U.S.C. § 2612, and federal Medicaid benefits.
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Same-sex couples residing in Texas cannot rely upon an out-of-state marriage to confer federal protections, benefits, and obligations. Texas same-sex couples who marry in another state must contend with substantial uncertainty regarding whether the federal government will recognize their marriage for all purposes. For instance, while the Internal Revenue Service
recently adopted a "state of celebration" rule in recognizing same-sex marriages, Ex. 21, Rev.
Ruling 2013-17, at 9 (Aug. 30, 2013), it is unclear what federal agencies will enact similar rules. Indeed, the Department of Labor recently announced that the Family Medical Leave Act applies only to same-sex couples that reside in states recognizing their marriage. See Ex. 22, Dept. of Labor, Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act (Aug. 2013).
Section 32 and the corresponding statutes similarly operate to deny certain benefits to gay and lesbian service members. In an August 30, 2013 letter to military personnel at state-run installations, Texas Military Forces2 were directed to deny same-sex couples enrollment access to federal healthcare and retirement benefits at Texas-based National Guard facilities. See Ex. 23,
Chris Tomlinson, Texas National Guard Commander Asksfor Legal Opinion on Same Sex
Military Benefits, Tyler Morning Telegraph (Sept. 6, 2013); Ex. 24, Josh Hicks, Texas National
Guard Denies Benefitsfor Same-Sex Spouses, The Washington Post (September 4, 2013).
Instead, these service members and their families must travel to federal installations elsewhere in the state to enroll and obtain access to standard military benefits. In response, United States Secretary of Defense Chuck Hagel reprimanded Texas and the Texas National Guard for failing
to grant full spousal benefits to the partners of gay and lesbian members of the armed forces. Ex.
2 The Texas Military Forces comprises the Texas Army National Guard, the Texas Air National Guard, and the Texas State Guard.
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25, Chuck Hagel, Secretary of Defense, Remarks at the Anti-Defamation League's Centennial
Dinner (Oct. 31, 2013). "Not only does this violate the states' obligations under federal law, but their actions have created hardships and inequality by forcing couples to travel long distances to federal military bases to obtain the ID cards they're entitled to." Id.
B. Plaintiffs' Inability To Marry Affects Numerous State-Law Protections, Benefits, And Obligations.
Texas' refusal to marry or recognize Plaintiffs' marriage also denies Plaintiffs many statelaw benefits. Among other things, Plaintiffs cannot:
Claim statutory protections afforded married couples upon the death of a spouse,
such as intestacy rights. Tex. Probate Code § 38, 45. Bring an action for wrongful death. Tex. Civ. Prac. & Rem. Code § 71.004.
Claim certain protections against the partition of the homestead following the death of a spouse. Tex. Const. art. 16, sec. 52. Receive the community property presumption afforded to married couples. Tex.
Fam. Code § 3.003.
Petition the court for an equitable division of community property, including rights in any pension or retirement plan. Tex. Fam. Code § 7.001, 7.003. Seek spousal maintenance if they separate or divorce. Tex. Fam. Code § 8.051.
Have the automatic right to make health care decisions for one another when necessary; Have the right to make burial decisions or other decisions regarding the handling
and disposition of one another's remains. Enjoy succession rights under state laws of intestacy. Tex. Probate Code § 45. Enjoy the benefit of the "zone of privacy" that heterosexual married couples enjoy in the form of evidentiary privileges between spouses. Tex. R. Evid. 504. Neither the Texas Fair Housing Act nor the Texas Labor Code prohibits discrimination based on sexual orientation. Tex. Prop. Code § 301.021, 301.026; Tex. Labor Code § 21.05 1-
053.
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ARGUMENT Courts consider four factors to determine if a preliminary injunction is proper. First, the party seeking the preliminary injunction must show a substantial likelihood of success on the merits. Deerfield Med. Ctr. v. City of Deerjleld Beach, 661 F. 2d 328, 332 (5th Cir. 1981). Second, there must be "a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted." Id. Third, the injury the plaintiff may suffer must outweigh the potential harm, if any, that the injunction will cause the defendant. Id. Finally, the preliminary injunction must not disserve the public interest. Id. Plaintiffs satisfy each of these requirements, and the Court should issue a preliminary injunction enjoining Defendants from enforcing Section
32.
Below, Plaintiffs first demonstrate they have a substantial likelihood of success on the merits by showing that Section 32 violates the Due Process and Equal Protection Clauses of the
Fourteenth Amendment to the United States Constitution. Plaintiffs then show that they have satisfied the remaining requirements for a preliminary injunction.
I. The Refusal To Marry Same Sex Couples Violates Due Process And EQual Protection Under The United States Constitution. Section 32 is unconstitutional. First, Section 32's prohibition of same-sex marriages
deprives Plaintiffs Holmes and Phariss of due process in violation of the Due Process Clause of the Fourteenth Amendment. Second, Section 32's prohibition of same-sex marriage deprives Plaintiffs Holmes and Phariss of equal protection, violating the Equal Protection Clause of the Fourteenth Amendment. Third, although the Court should apply heightened scrutiny, Section 32 fails even the more-lenient rational basis inquiry. Defendants simply have no rational basis to support Section 32 and, as the evidence shows, the bases offered in the past fail. Fourth, Section 32's refusal to recognize legal out-of-state marriages violates Plaintiffs De Leon's and
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Dimetman's Fourteenth Amendment due process and equal protection rights. Finally, Baker v. Nelson is not precedential because subsequent cases undermine its reasoning.
A. The Denial Of The Right To Marry Deprives Plaintiffs Holmes And Phariss Of Due Process.
The right to marry is a fundamental right protected by the United States Constitution. E.g., Zablocki, 434 U.S. at 384 ("[D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals."); Loving, 388 U.S. at 12 (1967) ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."). The Court has founded the right to marry in privacy, Griswold v. Connecticut, 381 U.S. 479, 486 (1965); liberty, Meyer v. Nebraska, 262 U.S. 390, 399 (1923); and association, ML.B., 519 U.S. at 116. "Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." Griswold, 381 U.S. at 486. This fundamental right entails the ability to marry the partner of one's choosing. See generally Loving, 388 U.S. at 12 (due process is violated by denial of right to marry a person of another race).
Most recently, the Supreme Court recognized that marriage involves one of "the most
intimate and personal choices a person may make in a lifetime. . . ." Lawrence, 539 U.S. at 574
(quoting Casey, 505 U.S. at 851). The right to marry is "central to personal dignity and autonomy. . . central to the liberty protected by the Fourteenth Amendment." Id. (quoting
Casey, 505 U.S. 833). And Lawrence recognized that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Id.
Denying homosexuals the right to marry and to select the partners of their choosing violates due process in the same fashion as the anti-miscegenation laws struck down in Loving. Holmes and Phariss seek to exercise the right to marry the partner of their choosing, just as the
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plaintiffs in Loving did, despite the State's purported moral disdain for their choice of partner. However, that the State may prefer to elevate one type of marriage over another does not permit it to deny each citizen the "freedom of personal choice" in deciding whom to marry, nor may it deny each citizen's decision the "same status and dignity." Windsor, 133 5. Ct. at 2689.
By denying Holmes and Phariss the fundamental right to marry, Texas denies their relationship the same status and dignity afforded citizens who are permitted to marry. It also
denies them the benefits of marriagelegal, social, and financial that opposite-sex couples
enjoy. As the Supreme Court recently recognized, a state's "definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities." Id. at 2691 (internal quotation marks omitted); see also Turner v. Safley, 482 U.S. 78, 96 (1987) ("[M]arital status often is a precondition to the receipt of government benefits
(e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights),
and other, less tangible benefits (e.g., legitimation of children born out of wedlock)."); Massachusetts v. US. Dep't of Health & Human Servs., 682 F.3d 1, 11(1st Cir. 2012) ("Loss of survivor's social security, spouse-based medical care and tax benefits are major detriments on any reckoning; provision for retirement and medical care are, in practice, the main components of the social safety net for vast numbers of Americans.").
By categorically denying the right to marry to a class of citizens, Section 32 "interfere[s] directly and substantially with the right to marry" and can withstand constitutional challenge only if it survives strict scrutiny. See Zablocki, 434 U.S. at 386-87 (applying strict scrutiny because statute that prevented non-custodial parents from marrying unless they provided proof of
compliance with child support obligations or obtained a court order would prevent some in the
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affected class of people from ever marrying and would seriously intrude on the ability of those who could comply). Section 32 survives strict scrutiny and is constitutional only if"it is
supported by sufficiently important state interests and is closely tailored to effectuate only those interests." See id. at 388; Carey v. Population Servs. Int'l, 431 U.S. 678, 686 (1977).
As discussed below (Argument, Section I.C.), Defendants cannot satisfy their burden of proving that Section 32 is constitutional.3 They cannot identify any compelling state interest that is served by denying same-sex couples the fundamental right to marry and even if they could,
any such interest could be served through less restrictive measures than a total ban on same-sex marriages.
B. The Denial Of The Right To Marry Deprives Plaintiffs Holmes And Phariss Of Equal Protection.
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.s. 202, 216 (1982)). By refusing to permit a same-sex couple like Holmes and Phariss to
marry, Section 32 "demeans the couple, whose moral and sexual choices the Constitution protects." Windsor, 133 S. Ct. at 2694 (citing Lawrence, 539 U.S. at 588). As with the federal law before the Supreme Court in Windsor, Section 32 identifies a "subset" of relationships (same-sex relationships) for which Texas denies the same equal rights, responsibilities, and benefits that opposite-sex couples receive in their right to marry. Thus, Section 32 is squarely subject to equal protection scrutiny under the federal and Texas Constitutions.
' The individual defendants are properly defendants in this case under 42 U.S.C. § 1983,
as they were acting under color of state law at all relevant times.
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1. Texas' Same-Sex Marriage Ban Should Be Subject To Heightened Scrutiny.
Not every equal protection challenge is subject to the same test. The Supreme Court has recognized that the "promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." Romer, 517 U.S. at 631 (citing Pers. Admin. of Mass. v. Feeney, 442 U.S. 256, 27 1-72 (1979)). However, the Supreme Court consistently applies heightened scrutiny to laws that discriminate against a group that it considers
a suspect or quasi-suspect classification, i.e., one that has experienced a "history of purposeful unequal treatment or [has] been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities." Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curiam) (internal quotation marks omitted); see also Pedersen v. Office ofPers.
Mgmt,, 881 F. Supp. 2d 294 (D. Conn. 2012) (finding statutory classifications based on sexual orientation are entitled to heightened scrutiny); Golinski v. US. Office ofPers. Mgmt., 824 F.
Supp. 2d 968, 3 14-333 (N.D. Cal. 2012) (same). In addition to looking to the history of discrimination, courts also consider whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society, Cleburne, 473 U.S. at 440-441; whether the distinguishing characteristic is "immutable" or beyond the group member's control, Lyng v. Castillo, 477 U.S. 635, 638 (1986); and whether the group is "a minority or politically powerless," Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (internal quotation marks omitted).
Although gay men and lesbians fulfill all four factors supporting heightened scrutiny, no
single factor is dispositive. Murgia, 427 U.S. at 321. The presence of any of the factors is a signal that the particular classification is "more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective," thus triggering
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heightened scrutiny. Plyler, 457 U.S. at 216 n. 14; see, e.g., Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 235 (1995) (holding that all racial classifications are inherently suspect, even

though many racial groups exercise substantial political power). Such classifications are "treated

as presumptively invidious" and must be "precisely tailored to serve a compelling government

interest" to pass constitutional muster. Plyler, 457 U.S. at 216.

a.

Heightened Scrutiny Applies Because Gays and Lesbians Suffer a

Long History of Discrimination.

For centuries, the prevailing attitude toward gays and lesbians has been "one of strong

disapproval, frequent ostracism, social and legal discrimination, and at times ferocious

punishment." Ex. 26, Richard A. Posner, Sex and Reason 291 (1992); see also Ex. 27, Evan

Gerstmann, The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based

Equal Protection 62-66 (1999) (cataloguing the "numerous legal disadvantages" suffered by gay

men and lesbians "in twentieth-century America"). Gay men and lesbians have been denied

employment, targeted for violence, publicly humiliated, and treated as perverts, sinners, and

criminals. See Ex. 28, American Psychological Association, Answers to Your Questions For A

Better Understanding of Sexual Orientation & Homosexuality (2008) ("Lesbian, gay, and

bisexual people in the United States encounter extensive prejudice, discrimination, and violence

because of their sexual orientation. Intense prejudice against lesbians, gay men, and bisexual people was widespread throughout much of the 20th century."); Ex. 29, FBI, Hate Crime

Statistics 2011, http ://www.fbi .gov/about-us/cj is/ucr/hate-crime/20 11/tables/table-I (showing

that, after racial minorities, gays and lesbians are the most frequent victims of hate crimes).

Federal courts have agreed. "[F]or centuries there have been powerful voices to condemn

homosexual conduct as immoral." Lawrence, 539 U.S. at 571; High Tech Gays v. Def Indus.

Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) ("[H]omosexuals have suffered a

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history of discrimination."); Ben-Shalom v. Marsh, 881 F.2d 454, 465-66 (7th Cir. 1989) ("Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree."). Several recent decisions have recounted this long history of discrimination. See, e.g., Pedersen, 881 F. Supp. 2d at 314-15; Golinski, 824 F. Supp. 2d at 985-86; Perry v, Schwarzenegger, 704 F. Supp. 2d 921, 981-91 (N.D. Cal. 2010), aff'd, 671 F.3d 1052 (9th Cir. 2012), rev'don other grounds, 133 S. Ct. 2652 (holding that appellants lacked standing to appeal
district court's decision). Through much of the twentieth century, homosexuality was characterized by the medical
establishment as a "disease," "mental defect," "disorder," or "degeneration." Such medical pronouncements provided "a powerful source of legitimation to anti-homosexual sentiment, much as medical science had previously legitimized widely held (and subsequently discarded) beliefs about male superiority and white racial superiority." Ex. 30, George Chauncey, Why Marriage? The History Shaping Today's Debate Over Gay Equality 17 (2004). Indeed, the Fifth Circuit has observed that "the strong objection to homosexual conduct ... has prevailed in Western culture for the past seven centuries." Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985). Homosexual conduct was a criminal offense in many state laws until the Supreme Court struck down those laws in Lawrence. See Id.; see also Bowers v. Hardwick, 478 U.S. 186, 192 (1986), overruled, Lawrence, 539 U.S. 558.
Federal laws also institutionalized discrimination against gays and lesbians. The military formally barred gays and lesbians from serving in World War II. Ex. 31, Nathaniel Frank, Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America 9 (2009). During the 1950s, President Eisenhower issued an executive order requiring the discharge of homosexual employees, among others, from all federal employment. Ex. 32, Exec. Order No.
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10450, 18 Fed. Reg. 2489 (1953). A Senate subcommittee investigated the "problem" of government-employed homosexuals and determined that "homosexuals and other sex perverts are not proper persons to be employed in Government for two reasons; first, they are generally unsuitable, and second, they constitute security risks." Ex. 33, 5. Doc. No. 241, Employment of Homosexuals and Other Sex Perverts in Government, 81st Congress, at 3 (1950). The federal government's employment discrimination against gay men and lesbians continued until the late 1990s. See Ex. 34, Letter from John W. Macy, Chairman, Civil Service Commission, to the Mattachine Society of Washington (Feb. 25, 1966) (rejecting the Society's request that the
federal government rescind its policy against employing homosexuals because of, among other
reasons, the "revulsion of other employees" and the "unavoidable subjection of the sexual deviate to erotic stimulation through on-the-job use of the common toilet, shower and living facilities"); Ex. 35, Exec. Order No. 13087, 63 Fed. Reg. 30097 (June 2, 1998) (adding "sexual
orientation" to Exec. Order 11478, 34 Fed. Reg. 11478 (Aug. 8, 1969) regarding equal employment opportunity in the federal gOvernment). From 1917 to 1990, Congress prohibited
gays and lesbians from entering the country. Ex. 36, Immigration Act of 1917, Pub. L. No. 64301, §3, 39 Stat. 874, 875 (1917) (requiring exclusion of "persons of constitutional psychopathic inferiority"); Ex. 37, Immigration and Nationality Act, amended October 3, 1965, Pub. L. No.
89-236, § 15(b), 79 Stat. 911, 919 (amending the Immigration and Nationality Act to add "sexual deviation" as a ground for denying entry into the United States); 8 U.S.C. § 11 82(a)(4) (1982) (prohibiting individuals who acknowledged their homosexuality from entering this country);
Immigration Act of 1990, Pub. L. No. 101-649, § 601, 104 Stat. 4978, 5067-77 (1990) (finally eliminating "sexual deviants" from the list of excludable aliens).
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Discrimination against gays and lesbians is deeply entrenched in Texas. Although Lawrence struck down as unconstitutional the Texas statute criminalizing sodomy, subsequent and repeated efforts to repeal the unconstitutional statute have failed. See Ex. 38 (H.B. 3232, H.B. 1701, and S.B. 538, 83rd Leg., Reg. Sess. (Tex. 2013) (passed out of committee); H.B. 2156 and H.B. 604, 82d Leg., Reg. Sess. (Tex. 2011) (died in committee); H.B. 3026, 81st Leg., Reg. Sess. (Tex. 2009) (same); H.B. 1326, 80th Leg., Reg. Sess. (Tex. 2007) (same)). In Texas, calling someone a "homosexual," or using a slang word implying the same, has been held to constitute slander per se because doing so implies that the person has violated a criminal law. Thomas v. Bynum, No. 04-02-00036-CV, 2002 WL 31829509, at *2 (Tex. App. Dec. 18, 2002); Heady. Newton, 596 S.W.2d 209, 210 (Tex. App. 1980). State law does not prohibit discrimination against gays and lesbians, and Texas courts have expressly found homosexuality
to be permissible grounds for denying employment. City of Dallas v. England, 846 S.W.2d 957,
958 (Tex. App. 1993); Childers v. Dallas Police Dep't, 513 F. Supp. 134 (N.D. Tex. 1981). In fact, current Texas law requires that education programs "state that homosexual conduct is not an acceptable lifestyle and is a criminal offense." Tex. Health & Safety Code § 85.007; see id. § 1 63.002(8).
Indeed, even after Windsor, Texas defiantly continues to discriminate against gays and lesbians serving in the National Guard, by refusing to issue military IDs to same-sex spouses of
service members at National Guard facilities. This, in the words of the United States Secretary of Defense, "causes division among the ranks, and it furthers prejudice, which DOD has fought
to extinguish." Ex. 39, American Forces Press Service, Hagel: States Denying Same-Sex Family
The same bills introduced to repeal Texas Penal Code § 21.06 similarly sought
unsuccessfullyto remove these provisions from Texas Health and Safety Code.
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Benefits Must Comply. Apparently, even those whom Texas calls upon to provide emergency aid
and to risk their well-being for the sake of fellow Texans are not shielded from Texas' invidious anti-gay discrimination. See Ex. 25, Chuck Hagel, Secretary of Defense, Remarks at the AntiDefamation League's Centennial Dinner (Oct. 31, 2013) ("Whether they are responding to
natural disasters here at home, in their states, or fighting in Afghanistan, our National Guardsmen
all wear the uniform of the United States of America. They are serving this country. Theyand their familiesare entitled to the benefits and respect accorded to all of our military men and
women."). b. Heightened Scrutiny Applies Because Sexual Orientation Is Not
Related to the Ability of Gays and Lesbians to Contribute to
Society. Like other suspect classifications such as race, national origin, and religion, sexual
orientation has no "relation to [the] ability" of a person "to perform or contribute to society." City of Cleburne, 473 U.S. at 440-4 1 (citation omitted); Pedersen, 881 F. Supp. 2d at 3 18-19 ("[T]he long-held consensus of the psychological and medical community is that 'homosexuality per se implies no impairment in judgment, stability, reliability or general or social or vocational capabilities.") (quoting 1973 Resolution of the American Psychological Association); Perry v.
Schwarzenegger, 704 F. Supp. 2d at 1002 ("[B]y every available metric, opposite-sex couples are not better than their same-sex counterparts, instead, as partners, parents and citizens, oppositesex couples and same-sex couples are equal."); see also Watkins v. US. Army, 875 F.2d 699, 725 (9th Cir. 1989) ("Sexual orientation plainly has no relevance to a person's 'ability to perform or contribute to society."); Equality Found of Greater Cincinnati, Inc. v. Cincinnati, 860 F. Supp. 417, 437 (S.D. Ohio 1994) ("Sexual orientation ... bears no relation whatsoever to an individual's
ability to perform, or to participate in, or contribute to, society .... If homosexuals were afflicted with some sort of impediment to their ability to perform and contribute to society the entire
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phenomenon of 'staying in the closet' and of 'coming out' would not exist, their impediment would betray their status"), rev'don other grounds, 54 F.3d 261 (6th Cir. 1995), vacated and
remanded, 518 U.S. 1001 (1996). Sexual orientation also does not prevent same-sex couples from forming long-lasting and
successful relationships. Indeed, "[s]ame-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners." Perry, 704 F. Supp. 2d at 967. Gay and lesbian couples also are just as capable of raising well-adjusted children. Id. at 980-8 1 ("Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy,
successful and well-adjusted."). In the field of developmental psychology, "[t]he research
supporting this conclusion is accepted beyond serious debate." Id. Indeed, numerous scientific, educational, sociological, medical, and pediatric societies recently filed amicus briefs before the Supreme Court attesting that same-sex couples are as capable parents as heterosexual couples. Ex. 40, Amicus Br. for The Am. Psychological Ass'n, et al., at 14-26, Un ited States v. Windsor, No. 12-307 (filed Mar. 1, 2013); Ex. 41, Amicus Br. for The Am. Sociological Ass'n, at 6-14, Hollingsworth v. Perry, No. 12-144, (filed Feb. 28, 2013).
c. Heightened Scrutiny Applies Because Sexual Orientation is Immutable.
A law is more likely to receive heightened scrutiny if it discriminates against an individual based on a characteristic that he or she either cannot realistically change, or ought not to be compelled to change because it is fundamental to his or her identity. See, e.g., Plyler, 457 U.S. at 220 (noting that illegal alien children "have little control" over that status); Nyquist v. Mauclet, 432 U.S. 1,9 n.h (1977) (treating resident aliens as a suspect class despite their ability
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to opt out of that class); Steffan v. Perry, 41 F.3d 677, 689 n.9 (D.C. Cir. 1994) (noting that a [c]lassification[] based on ... religion, of course, would trigger strict scrutiny").
Sexual orientation falls within this category of defining personal characteristics. As the Supreme Court acknowledges, sexual orientation is so fundamental to a person's identity that one ought not be forced to choose between one's sexual orientation and one's rights as an individualeven if one could make such a choice. Lawrence, 539 U.S. at 576-77 (recognizing that individual decisions by consenting adults concerning the intimacies of their physical relationships are "an integral part of human freedom"). Federal courts have repeatedly
recognized that "[s]exual orientation and sexual identity are immutable," Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000); "[s]exual orientation is fundamental to a person's identity," Perry, 704 F. Supp. 2d at 964-66; and "[h]omosexuality is as deeply ingrained as heterosexuality," Hernandez-Montiel, 225 F.3d at 1093 (internal quotation marks omitted).
The scientific consensus is that sexual orientation is an immutable characteristic. See,
e.g., Ex. 42, G.M. Herek, et al. Demographic, Psychological, and Social Characteristics ofSelf
IdentUled Lesbian, Gay, and BisexualAdults in a US. Probability Sample, 7 Sexuality Res. & Soc. Pol'y 176, 186 and 188 (2010) (noting that in a national survey, 95 percent of gay men and 84 percent of lesbian women reported that they "had little or no choice about their sexual orientation"); Pedersen, 881 F. Supp. 2d at 320-21 (finding that the immutability of sexual orientation "is supported by studies which document the prevalence of long-lasting and committed relationships between same-sex couples as an indication of the enduring nature of the characteristic"). Courts that have examined literature and evidence have concluded that sexual orientation is not something that people can change. E.g., Perry, 704 F. Supp. 2d at 966 ("No credible evidence supports a finding that an individual may, through conscious decision,
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therapeutic intervention or any other method, change his or her sexual orientation."); Pedersen, 881 F. Supp. 2d at 321 (citing reports and statements by American Psychiatric Association, American Psychological Association, American Counseling Association, National Association of Social Workers, and the American Academy of Pediatrics critical of programs that purport to "treat" homosexuals to "change" their sexual orientation). An American Psychological Association task force concluded that therapeutic programs designed to "change" sexual orientation are not only ineffective, but actually harmful. Ex. 43, Am. Psychological Ass'n Task Force on Appropriate Therapeutic Responses to Sexual Orientation, 2009, Report of the Task Force at 2-3.
d. Heightened Scrutiny Applies Because Gay Men and Lesbians Lack Political Power to Eliminate Significant Constitutional and Statutory Disadvantages.
Gay and lesbian citizens constitute a minority group that lacks sufficient political power to protect themselves against discriminatory laws. Currently, there are six openly gay or lesbian
members of the House of Representatives and one Senatorconstituting about one percent of the 535 members of Congress. Ex. 44, Jeremy W. Peters, Openly Gay, and Openly Welcomed in Congress, N.Y. Times, January 26, 2013, at Al.
Texas' record of electing openly gay or lesbian lawmakers is even more sparse. In January 2013, Mary Rodriguez became only the second openly gay or lesbian legislator in Texas history. Ex. 45, Zahira Torres, Gay El Paso rep writes self into Texas Legislature history, El Paso Times, Jan. 9, 2013. She is the only openly gay or lesbian legislator currently serving among the 150 members of the Texas House. There has never been an openly gay or lesbian member of the Texas Senate.
The history of same-sex marriage bans illustrate the lack of political power possessed by
gays and lesbians. Before 1993, only three states expressly restricted marriage to opposite-sex 26
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couples. Andrew Koppelman, The Difference the Mini-DOMAs Make, 38 Loy. U. Chi. L.J. 265 (2007). By 2006, 40 states had enacted such bans. Id. at 265-66. Between 1998 and 2006, thirty states passed constitutional amendments to ban same-sex marriage. Most recently, North Carolina passed a constitutional amendment banning same-sex marriage in 2012. Ex. 46, Campbell Robertson, Ban on Gay Marriage Passes in North Carolina, N.Y. Times, May 9, 2012, at A 15.
In Texas, H.J.R. 6, the bill that became Article I, § 32, had five authors and 74 co-authors
in the House of Representativesa legislative body with 150 members. Ex. 57. Thus, more than half of the state's representatives claimed authorship or co-authorship of the discriminatory
same-sex marriage ban, reflecting the legislators' enthusiasm to be seen not just as a proponent of the law, but as its creator. H.J.R. 6 passed the House with a vote of 102-29 and the Senate with a vote of 21-8. Ex. 47, H.J.R. Res. 6, 79th Leg. (Tex. 2005). It then was approved as Proposition 2 by voters by a more than 3-to-i margin, receiving 76.25% approval. Ex. 48, Office of the Texas Secretary of State, Race Summary Report, 2005 Constitutional amendment Election, (Nov. 8, 2005). Previously, Family Code § 6.204, which prohibits same-sex marriages and civil unions, was enacted in 2003 by a vote of 118-9 in the Texas House, and by voice-vote in the
Texas Senate. Ex. ii, Tex. S.B. 7,78th Leg., Reg. Sess. (Tex. 2003).
Moreover, as discussed above, despite the fact that Texas' sodomy law is unconstitutional, every attempt to repeal it has failed. It remains on Texas' books to this day, as does the mandate that students be instructed that homosexual conduct is criminal.
These facts overwhelmingly demonstrate that gays and lesbians lack substantial political
power, establishing that this factor weighs in favor of applying heightened scrutiny to Section 32. See also Ex. 5, DecI. of Gary M. Segura in Supp. of Pls' Mot. for Prelim. Inj. ¶ 10 ("Gay men
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and lesbians do not possess a meaningful degree of political power and are politically vulnerable."). However, even if the small strides that gays and lesbians have made politically would suggest they have political power, courts give less weight to this factor than the others. Indeed, the Supreme Court recognizes women as a quasi-suspect class despite the fact that this group is neither a minority nor truly politically powerless. Frontiero v. Richardson, 411 U.S.
677, 686 n. 17 (1973) (plurality opinion) (acknowledging that women "do not constitute a small and powerless minority"); Pedersen, 881 F. Supp. 2d at 326-27 (recognizing this factor receives less weight); see also In re Marriage Cases, 43 Cal.4th 757, 842-43 (2008) (concluding that political powerlessness cannot be required for heightened scrutiny to apply because other groups like women and African Americans continue to be accorded heightened protection although they no longer lack political power).
2. Past Cases Holding That Equal Protection Challenges By Gays And Lesbians Are Not Subject To Heightened Scrutiny Are Not Controlling.
Defendants may argue that heightened scrutiny should not apply by citing older cases that have analyzed equal protection claims using the rational basis test. The decisions in these cases were premised on a foundation that no longer exists. Accordingly, this Court should follow newer authority like Golinski and Pedersen, which carefully scrutinized the current legal landscape in concluding that heightened scrutiny should apply.
The first set of older cases directly held that that equal protection claims by gays and lesbians were not subject to heightened scrutiny and are only subject to rational basis review. See, e.g., High Tech Gays, 895 F.2d at 571; BenShalom, 881 F.2d at 456. However, as Golinski explained, these cases relied on the pre-Lawrence decision in Bowers that upheld sodomy laws and permitted the criminalization of homosexual conduct. Consequently, both cases rationalized that if homosexual conduct could be criminal, it followed that gays and lesbians could not be a
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suspect class. High Tech Gays, 895 F.2d at 571 (finding that because states could criminalize homosexual conduct, "homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes"); Ben-Shalom, 881 F.2d at 464 (same). Because the Supreme Court reversed Bowers and criminal sodomy laws are unconstitutional, the underlying premise in cases finding that gay men and lesbians are not entitled to heightened scrutiny is no longer apt. Golinski, 824 F. Supp. 2d at 984; Pedersen, 881 F. Supp. 2d at 312-13.
Two other major reasons exist to reject those older decisions. First, as Golinski recognized, High Tech Gays relied on the assumption the homosexuality was a behavioral decision, not an immutable characteristic. Golinski, 824 F. Supp. 2d at 984 (citing High Tech Gays, 895 F.2d at 5 73-74). As discussed above, that premise is wrong and, under Lawrence, not a basis for justifying discriminatory legislation toward gays and lesbians. Id. at 984-85; see also Lawrence, 539 U.S. at 575.
Second, cases like High Tech Gays and Ben-Shalom involved challenges to military policy on homosexual conduct, which placed them in an unusual and very different context from the claims here, which arise in civilian context. Pedersen, 881 F. Supp. 2d at 3 12-13. Because "individual rights must of necessity be curtailed" within the military, "courts have applied less stringent standards to constitutional challenges to military rules, regulations and procedures than they have in the civilian context" and consequently a court's "review of military regulations is far more deferential than constitutional review .of similar laws or regulations designed for civilian society." Able v. United States, 155 F.3d 628, 633 (2d Cir. 1998) (quoting Goldman v. Weinberger, 475 U.S. 503, 507 (1986)). For this reason, cases applying a rational-basis review
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in challenges to military policies toward gays and lesbians should not be conclusive in challenges to non-military legislation. Pedersen, 881 F. Supp. at 3 12-13.
Defendants also may rely upon other decisions that apply rational basis review to laws discriminating against gays and lesbians. Such cases would include Lawrence, though it was not decided on equal protection grounds; Romer, 517 U.S. 620, which struck down a Colorado constitutional amendment that prohibited the passage of measures designed to prevent
discrimination on the basis of sexual orientation; and Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004), a case involving a prisoner's challenge to the manner in which he was housed. These
cases did not hold that gays and lesbians are not a suspect classthey did not reach the issue
because the laws failed rational basis review. Romer and Lawrence held that the laws in question failed rational-basis review, so there was no need for the Supreme Court to decide whether gays and lesbians were a suspect classification.5 The same is true of Johnson, which held that the plaintiff stated a claim for an equal protection violation under a rational basis test. Johnson, 385 F.3d at 532. Because rational basis is the lowest level of constitutional scrutiny, these cases did not require the courts to analyze whether heightened review was appropriate and, thus, they are
not dispositive of the issue of whether gays and lesbians are suspect classes in this case. C. Texas' Same Sex Marriage Ban Fails Both Heightened Scrutiny And Rational Basis Examination.
To survive heightened scrutiny, Defendants must show that Section 32 is narrowly tailored to effectuate an important government objective, Zablocki, 434 U.S. at 388, or that Section 32 is "substantially related to an important governmental objective," Clark v. Jeter, 486
As Pedersen points out, "the word 'suspect' does not appear once in the Supreme Court's decision in Lawrence and only the dissent in Romer mentions suspect class in a footnote noting that respondents elected to not appeal to the Supreme Court of Colorado the trial court's rejection of their argument that homosexuals constitute a suspect or quasi-suspect class."
Pedersen, 881 F. Supp. 2dat3ll.
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U.s. 456, 461 (1988) (applying intermediate scrutiny). Under this standard, the Court must find that statutory classification reflects "a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may be fairly viewed as furthering a substantial interest of the state." Plyler, 457 U.S. at 2 17-18. "The justification must be genuine, not hypothesized or invented post hoc in response to litigation," and it must not rely "on overbroad generalizations." United States v. Virginia, 518 U.S. 515, 533 (1996). Defendants cannot show that the same-sex marriage ban satisfies heightened scrutiny. When the Constitution allows convicted felons to marry, it is impossible to identify an important government objective served by denying the same right to law-abiding same-sex couples. Turner, 482 U.S. at 94-96 (holding that prisoners were entitled to fundamental right to marry).
The Court need not decide whether Section 32 fails heightened scrutiny because Section 32 cannot even satisfy the more-lenient rational basis test. Romer, 517 U.S. at 631. To survive the rational basis test, Section 32 must bear at least some rational relationship to a legitimate government purpose. Id.; see City of Cleburne, 473 U.S. at 446 (holding that even when there is a legitimate government purpose, the discrimination must bear at least some rational relationship to that purpose); Heller v. Doe, 509 U.S. 312, 321 (1993) (rational basis test requires that the proffered justification for a law "must find some footing in the realities of the subject addressed by the legislation"). Thus, courts "insist on knowing the relation between the classification adopted and the object to be attained." Romer, 517 U.S. at 632. A law will not survive rational basis scrutiny unless it is "narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s]." Id. at 632-3 3. "By requiring that the classification bear a rational relationship to an independent
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and legitimate legislative end, we ensure that classifications are not drawn for the purpose of
disadvantaging the group burdened by the law." Id. at 633.
In prior litigation, Defendants identified two bases for Section 32: (1) "to encourage
responsible procreation"; and (2) "to increase the likelihood that children will be raised by a mother and a father in the context of stable, long-term relationships." See Br. on the Merits of
Resp't the State of Texas, In the Matter of the Marriage ofJB. andH.B., No. 11-0024, at 30
(Tex. Sept. 26, 2011). In other words, the alleged rational basis is "to encourage stable family
environments for procreation and the rearing of children by a mother and father." Id. at 29.
These alleged bases are consistent with the arguments made by Section 32's supporters before
the Texas legislature. See, e.g., Ex. 17, House Research Org., Bill Analysis, 79th Leg., Reg. Sess.
(Tex. 2005) ("A traditional marriage consisting of a man and a woman is the basis for a healthy,
successful, stable environment for children."). These alleged bases do not withstand rational
basis scrutiny.6
1. Rather than Encouraging Stable Environments for Procreation, The SameSex Marriage Ban Destabilizes Them.
The notion that the same-sex marriage ban will encourage procreation assumes that
heterosexual marriage is "naturally procreative." But procreation is not and never has been a
6 Notably, neither of the alleged bases is "tradition." Tradition cannot, alone, form a rational basis for a law. Williams v. Illinois, 399 U.S. 235, 239 (1970); Perry, 704 F. Supp. 2d at 998 ("[T]he state must have an interest apart from the fact of the tradition itself."). "[T]he argument that the definition of marriage should remain the same for the definition's sake is a circular argument, not a rational justification." Golinski, 824 F. Supp. 2d at 998; see Romer, 517 U.S. at 635 (rejecting a law as "classification of persons undertaken for its own sake, something that the Equal Protection Clause does not permit"); see also Varnum v. Brien, 763 N.W.2d 862, 898 (Ia. 2009) ("A specific tradition sought to be maintained cannot be an important government objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged."). Moreover, Section
32 is inconsistent with an important marriage traditionfree choice of marriage partner. See
generally Ex. 6, Decl. of Nancy F. Cott in Supp. of Pls' Mot. for Prelim. Inj. ("Cott Dccl.").
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qualification for marriage. Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) ("[W]hat
justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of
procreation since the sterile and the elderly are allowed to marry."); Golinski, 824 F. Supp. 2d at 993 ("The ability to procreate cannot and has never been a precondition to marriage."); Cott Decl. ¶J 32-3 3.
Further, if Texas intended for Section 32 to reserve marriage for couples that can
procreate by having sex, then the ban is woefully underinclusive. Texas does not prevent the marriages of the sterile, the elderly, and those who do not intend to have children. A marriage's
validity does not hinge upon consummation. These individualswho cannot or will not procreateare allowed to marry. Only same-sex couples are purportedly denied the right to marry on the basis of this biological limitation. Section 32 makes "no sense in light of how [it]
treat[s} other groups similarly situated in relevant respects," and, consequently, "encouraging
stable environments for procreating" does not provide a rational basis for Section 32. See Bd. of Trs. of Univ. ofAla. v. Garrett, 531 U.S. 356, 366 n.4 (2001); Goodridge v. Dep't ofPublic
Health, 798 N.E.2d 941, 962 (Mass. 2003) ("General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married."); Baker v. State, 744 A.2d 864, 881 (Vt. 1999) ("It is equally undisputed that many opposite-sex couples marry for reasons unrelated to procreation, that some of these couples never intended to have children,
and that others are incapable of having children. Therefore, if the purpose of the statutory
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exclusion of same-sex couples is to 'further the link between procreation and child rearing,' it is significantly underinclusive.").
But even assuming, arguendo, that heterosexual marriage was "naturally procreative," Texas' logic rests on the notion that permitting same-sex marriage will somehow undermine procreation among heterosexuals. Case law, statistics, and common sense tell us this fear is
unfounded. "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages." Perry, 704 F. Supp. at 972. Same sex marriage does not make it more or less likely that heterosexuals will marry and engage in activities that can lead to procreation. See, e.g., id. at 999; Goodridge, 798 N.E.2d at 962 (stating that there was no evidence "that forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children"). As the Ninth Circuit aptly put it: "It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman." Perry v. Brown, 671 F.3d 1052, 1089 (9th Cir 2012), rev'don other grounds, 133 S. Ct. 2652 (2013) (finding that appellees lacked standing to appeal district court's decision).
Statistical evidence supports the case law: same-sex marriage has no effect on
heterosexual marriage or divorce rates. Ex. 7, Deci. of Lee Badgett in Supp. of Pls' Mot. for Prelim. Inj. ("Badgett DecI.") ¶J 69-77. "[T]here is no evidence to conclude that heterosexual marriage would be discouraged or made unstable if same-sex couples were allowed to marry." Id. ¶ 69. Data from the Netherlands, the first country to allow same-sex marriage, and states that have legalized same-sex marriage "show[] that patterns of marriage, divorce, and other indicators are not affected when same-sex couples can marry." Id. "An analysis of demographic trends,
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population-based surveys, and qualitative interviews in the Netherlands shows no evidence that granting the right to marry to same-sex couples will have any effect on heterosexual couples'
willingness to marry, their probability of divorce, or the non-marital birth rate." Id. ¶ 70. Similarly, "scholars compar[ing the experience of Massachusetts and other states that allow same-sex couples to marry to the experiences of states that do not allow same-sex couples to marry ... find no evidence of any negative effect on measures of heterosexual behavior related to
same-sex couples marrying." Id. ¶ 69. The evidence showing that same-sex marriage has no impact on opposite-sex marriage is
unsurprising.
The results of more than a century of anthropological research on
households, kinship relationships, and families, across cultures and through time, provide no support for the view that either civilization or viab'e social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies. Ex. 49, Am. Anthropological Ass'n, Statement on Marriage and the Family (Feb. 26, 2004). Thus, the argument that allowing same-sex couples to marry will undermine procreation in
others is the type of unsupported "overbroad generalization" that cannot be a basis for upholding
discriminatory legislation. Plyler, 457 U.S. at 217-18. In fact, rather than serving the interest of encouraging stable environments for
procreation, Section 32 hinders the creation of such environments. As Plaintiffs De Leon and
Dimetman can attest, same-sex couples have children. See Windsor, 133 S. Ct. at 2694
(recognizing that laws prohibiting same-sex marriage "humiliate[] tens of thousands of children
now being raised by same-sex couples"). Just like opposite-sex couples and individuals, samesex couples can have children through assisted reproductive techniques and through adoption.
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See Gôlinski, 824 F. Supp. 2d at 992 ("[S]ame sex parents can and do have and adopt children.");
Baker, 744 A.2d at 882 ("[T]he reality today is that increasing numbers of same-sex couples are
employing increasingly efficient assisted-reproductive techniques to conceive and raise children."). Texas does not prohibit same-sex couples from adopting or using assisted reproductive techniques. Defendants can offer no justification why Texas permits same-sex
couples to procreate and adopt children outside of wedlock, while simultaneously claiming that allowing them to marry undermines procreation. In so doing, Section 32 affirmatively destabilizes the environment for same-sex parents to procreate. Thus, Section 32 actually defeats the very purpose it was supposedly designed to protect.
2. Rather Than Encouraging Stable Environments for Child-Rearing, The Same-Sex Marriage Ban Destabilizes The Environment For All Children of Same-Sex Couples.
The second basis asserted in the prior casethat the same-sex marriage ban encourages
stable environments for child-rearingis another overbroad generalization devoid of factual
support and common sense. As just discussed, same-sex couples in Texas can conceive and adopt children. It follows that they, therefore, raise children, just as De Leon and Dimetman are raising their child, C.
Far from encouraging a stable environment for child rearing, Section 32 denies children of same-sex parents the protections and stability they would enjoy if their parents could marry. Ex. 50, Ellen C. Perrin, Benjamin S. Siegel, and the Committee on Psychosocial Aspects of Child and Family Health, Promoting the Well-Being of Children Whose Parents Are Gay or Lesbian, 131 Pediatrics 1374, 1377 (Apr.2013) ("Children who are raised by married parents benefit from the social and legal status that civil marriage conveys to their parents."). It
precludes children of same-sex couples from enjoying the legal protections and emotional benefits associated with having legally married parents. See supra, Factual Background § IV;
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Windsor, 133 S. Ct. at 2694. Among other things, without undergoing formal adoption, children of same-sex couples have no legal right to inherit from the non-biological parent and may be
denied rights such as hospital visitation if that parent becomes ill. The non-biological parent
may be denied similar visitation rights or the ability to make decisions about the child without the biological parent in connection with legal, medical, or educational matters. Thus, for samesex families, Section 32 does not encourage stable environments for child rearing. See Perry, 704 F. Supp. 2d at 1000 (denying same-sex parents the right to marry denies them the benefits,
including stability, attendant to marriage). It does the very opposite; it ensures that children of same-sex parents will never enjoy the benefits that would result from their parents' marriages. Golinski, 824 F. Supp. 2d at 992 ("The denial of recognition and withholding of marital benefits to same-sex couples does nothing to support opposite-sex parenting, but rather merely serves to endanger children of same-sex parents."); Pedersen, 881 F. Supp. 2d at 336-37 (finding that the denial of marriage to same-sex parents "in fact leads to a significant unintended and untoward consequence by limiting the resources, protections and benefits available to children of same-sex parents"); Ex. 51, Am. Psychiatric Ass'n, Position Statement on Support of Legal Recognition of Same-Sex Civil Marriage (July 2005) ("The children of unmarried gay and lesbian parents do not have the same protection that civil marriage affords the children of heterosexual couples.").
Moreover, more than 25 years of research indicates that children and adolescents of
same-sex parents "are as successful psychologically, emotionally, and socially as children and
adolescents raised by heterosexual parents, including biological parents." Ex. 8, Decl. of Michael E. Lamb in Supp. of Pls' Mot. for Prelim. Inj. ("Lamb Decl.") ¶ 13; see also Ex. 50, Perrin, supra at 1377 ("A large body of scientific literature demonstrates that children and
adolescents who grow up with gay and/or lesbian parents fare as well in emotional cognitive,
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social, and sexual functioning as do children whose parents are heterosexual."). "[T]he concerns
often raised about children of lesbian and gay parentsconcerns that are generally grounded in
prejudice against and stereotypes about gay peopleare unfounded." Ex. 28, Am. Psychological
Ass'n, Answers to Your Questions For A Better Understanding of Sexual Orientation &
Homosexuality, at 5. While factors such as poverty, parental depression, parental substance abuse, divorce, and domestic violence confer risk to a child's healthy development, "the sexual
orientation of their parents is not among them." Ex. 50, Perrin, supra at 1377. "The parents' sex or sexual orientation does not affect the capacity to be good parents or
their children's healthy development." Lamb Decl. ¶ 14. Children do not need a male and
female parentthey need parents. Id. ¶ 14, 28, 31 ("The social science literature
overwhelmingly rejects the notion that there is an optimal gender mix of parents or that children and adolescents with same-sex parents suffer any developmental disadvantages compared with those with two different-sex parents."). A child's adjustment depends upon qualities such as "the parents' affection, consistence, reliability, responsiveness, and emotional commitment, as well as on the quality and character of the relationships between the parents and their intimates, and on the availability of sufficient economic and social resources." Id. ¶ 21.
Leading medical, psychological, and social-welfare organizations oppose same-sex
parenting restrictions because of the abundant scientific evidence showing that children raised by
gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual
parents. See Ex. 52, Am. Acad. of Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents, Feb. 2002; Ex. 53, Am. Psychological Ass'n, Sexual Orientation, Parents, & Children (July 2004); Ex. 54, Am. Acad. of Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or
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Transgender Parents Policy Statement (2009); Ex. 55, Child Welfare League of Am., Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults.
Thus, the evidence shows that same-sex couples can and do have children and that those children are as well-adjusted as children of heterosexual couples. Yet Section 32 hinders the stability of same-sex parents and their children. See Goodridge, 798 N.E.2d at 963 ("[T]he task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws."); Lamb Decl. ¶ 47 ("Many lesbians and gay men already are parents, and it is in the best interests of their children for these families to have equal access to the protections, benefits, social legitimacy and support afforded through marriage."). Recognizing this, the
American Academy of Pediatrics "concludes that it is in the best interest of children that they be able to partake in the security of permanent nurturing and care that comes with the civil marriage of their parents, without regard to their parents' gender or sexual orientation." Ex. 50, Perrin, supraat 1381.
As the Supreme Court so aptly explained in Windsor, the same-sex marriage ban
"humiliates tens of thousands of children now being raised by same sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."
Windsor, 133 S. Ct. at 2694. Section 32 does nothing to encourage stable environments for child rearing. As a result, "encouraging stable environments for child-rearing" cannot provide a rational basis for Section 32. See Varnum v. Brien, 763 N.W.2d 862, 899 (Ia. 2009) ("Plaintiffs
presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents
and opposite-sex parents.").
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3. Section 32 ImiDermissibly Targets Homosexuals. Because every asserted basis for Section 32 fails to pass muster under even the most forgiving standard, this Court must conclude that Section 32 was designed to disadvantage same-
sex couplesa clear violation of the Constitution. Windsor, 133 S. Ct. at 2693 ("The
Constitution's guarantee of equality 'must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot' justify disparate treatment.") (quoting Dep 't of Agri. v. Moreno, 413 U.S. 528, 534-35 (1973)); Romer, 517 U.S. at 635 ("We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them
unequal to everyone else. This Colorado cannot do.").
The legislative history of Texas' statutory and constitutional provisions banning same-sex marriage illustrates the animus against gay men and lesbians and the motivation behind the bans. Although it did not rely on these grounds in its recent defense of Section 32, the arguments in favor of Family Code § 6.204 claimed that marriage between a man and a woman gives "women
and children the surest protection against poverty and abuse, provides for the healthy
psychological development of children, and avoids health risks of same-sex relations and promiscuity." House Research Org., Report on Major Issues, 78th Leg., Reg. Sess. (Tex. 2003). Texas was not content merely to deprive same-sex couples of the title "married," but even went so far as to enact a provision ensuring that same-sex couples could never obtain any rights even
similar to marital rights. Tex. Const., art. I, § 32(b).
In the House of Representatives, it was claimed that same-sex marriage "could lead to the recognition of bigamy, voluntary incest, pedophilia, and group marriage." House Research Org., Daily Floor Report, 78th Leg., Reg. Sess. (Tex. April 29, 2003). The necessary implication of these statements, of course, is that gay men and lesbians are more likely than heterosexuals to be poor and abusive, injurious to children's psychological development, and engage in risky
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"promiscuous" acts; and that they are akin to bigamists, the incestuous, pedophiles, and polygamists. These shameful slurs disclose the unfounded fear and irrational beliefs that motivated Section 32 and show that it impermissibly targets gay men and lesbians.
Section 32 does not have a rational basis and it impermissibly targets a minority. Thus it cannot withstand constitutional scrutiny.
D. The Refusal To Recognize Same-Sex Marriages Lawfully Performed In Other States Deprives Plaintiffs De Leon and Dimetman Equal Protection And Due Process.
Under Texas law, marriages are presumptively valid in Texas and will be upheld against claims of invalidity "unless a strong reason exists for holding the marriage void or voidable." Tex. Fam. Code Ann. § 1.101. Consistent with that presumption, "[t]he general rule is that a marriage valid where contracted is valid everywhere, and that one void where contracted is void everywhere," Porlwoodv. Portwood, 109 S.W.2d 515, 522 (Tex. Civ. App. 1937), and "[t]he validity of a marriage is generally determined by the law of the place where it is celebrated," Husbandv. Pierce, 800 S.W.2d 661, 663 (1990). See also Tex. Emp'r Ins. Ass'n v, Borum, 834 S.W.2d 395, 399 (Tex. App. 1992) ("[T]he validity of a marriage is generally determined by the law of the place where it is celebrated rather than the law of the place where suit is filed."); Braddock v. Taylor, 592 S.W.2d 40, 42 (Tex. Civ. App. 1979) ("The validity of a marriage is determined by the law of the place where it was celebrated."). Thus, even if Texas itself would not allow a particular marriage to occur within its borders, that marriage generally must be
recognized in Texas if lawfully performed in another state or country. E.g., Husband, 800
S.W.2d at 662-63 (although no county clerk in Texas could have lawfully issued a marriage license to Texas girl without her parents' consent or a court order, marriage performed in Mexico was legal and would be recognized under Texas law); cf Braddock, 592 S.W.2d at 42 (refusing to recognize common law marriage in Texas because California did not recognize common-law
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marriages); Nevarez v. Bailon, 287 S.W.2d 521, 523 (Tex. Civ. App. 1956) (same because
common-law marriage would not have been recognized in Mexico).
Thus, because Texas will recognize heterosexual marriages from other stateseven ones that might not be permissible in Texasthe failure to recognize same-sex marriages in Texas
squarely implicates equal protection. Texas' sole ground for refusing to recognize lawful
marriages from other states is that they are void under Texas public policy.7 Fam. Code, § 6.204; see also Nevada v. Hall, 440 U.S. 410, 422 (1979) (Full Faith and Credit Clause does not require
one state to apply another state's law in violation of its own legitimate public policy). But
where, as here, that public policy is nothing more than a discriminatory animus that targets an
unpopular minority, the law cannot stand: a legislative "desire to harm a politically unpopular group cannot' justify disparate treatment of that group." Windsor, 133 S. Ct. at 2693 (quoting
Moreno, 413 U.S. at 534-535). "The guaranty of 'equal protection of the laws' is a pledge of the protection of equal laws." Romer, 517 U.S. at 633-634 (quoting Skinner v. Oklahoma ex rel.
Williamson, 316 U.S. 535, 541 (1942)).
Defendants may argue that the traditional rule that the place of celebration does not govern, and courts should instead apply the significant contacts test under a choice of law analysis to marriage cases. In re Marriage ofJB. andH.B., 326 S.W.3d 654, 668-69 (Tex. App. 2010), rev, granted. Aug. 23, 2013; Seth v. Seth, 694 S.W.2d 459, 462-64 (Tex. App. 1985). However, that test makes no cognizabie difference, because even under traditional choice of law analysis, the Texas Supreme Court has stated that Texas courts will enforce a valid contractual choice of law provision. Duncan v. CessnaAircraft Co., 665 S.W.2d 414, 421 (Tex. 1984) (stating that significant contacts test would apply "except those contract cases in which the parties have agreed to a valid choice of law clause"). That would mean that a married couple could agree contractually to have their marriage governed by the law of another state and Texas would respect that decision under its choice of law analysis. Thus, the type of choice of law analysis this Court uses is irrelevant. All that matters is that under either approach to choice of law, Texas could still recognize a marriage under the law of another state even if that law were not one that could otherwise be entered into in Texas in the first instance and void for public policy would be the only grounds for refusing to recognize such marriages.
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As discussed above (Argument, Section I.B.1.), because Section 32 targets gays and lesbians, a suspect classification, the refusal to recognize same-sex marriages should be subject to heightened scrutiny. However, under either heightened scrutiny or rational basis, Defendants can offer no legitimate justification for Texas' refusal to recognize De Leon and Dimetman's marriage. Having already married in another state, declaring that marriage void undermines the alleged goal of fostering stable relationships and promoting families in which children are raised by both parents. Indeed, despite being married at the time De Leon conceived and gave birth to C, Dimetman was forced formally to adopt C so that she would be recognized as C's mother. In other instances, however, where same-sex married couples have had children in states that
recognize their marriagesand thus do not require adoptions to confer parental rightsparents
could find that moving to Texas may strip them of parental rights that they had by virtue of their marital relationship. Thus, far from serving the purpose of promoting families and stable relationships, the refusal to recognize existing marriages lawfully performed in other states has
the exact opposite effect. Nor can Defendants demonstrate how refusing to recognize same-sex marriages
performed in other states promotes procreation. As discussed above, there is no evidence that same-sex marriage affects opposite-sex marriages or procreation among heterosexuals. (Argument, Section I.C.) To the contrary, despite their Massachusetts marriage not being recognized by Texas, De Leon and Dimetman had a child after they were married. So how does Texas refusing to recognize that marriage promote procreation? Do Defendants believe they and other married same-sex couples will be so discouraged by the lack of state recognition that they will divorce their same-sex spouses, find heterosexual spouses, and then have children within heterosexual marriages? The notion is preposterous.
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Ultimately, as an Ohio district court recently found when confronted with this same question, the only "purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: 'to impose inequality' and to make gay citizens unequal under the law." Obergefell v. Kasich, No. 1 :13cv---501, 2013 WL 3814262, *6 (S.D. Ohio July 22, 2013). Because Ohio, like Texas, recognized other state marriages that might otherwise not be permitted in Ohio, the Obergefell court held that Ohio's refusal to recognize out-of-state same-sex marriages violated equal protection and issued an injunction requiring the state to recognize a same-sex marriage lawfully performed in Maryland.
Obergefell also held that the refusal to recognize the plaintiffs' out-of-state marriage violated due process, particularly implicating the associational rights discussed in cases like Griswold, 381 U.S. at 486, and Zablocki, 434 U.S. at 384. Obergefell, 2013 WL 3814262, at *6. "Even if there were proffered some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the ban imposed on same-sex couples legally married in other states." Id. Even under a rational-basis test, the court could not find any grounds for refusing to recognize "lawful, out-of-state same sex marriages that is not related to the impermissible expression of disapproval of same-sex married couples." Id. The same is true here.
Defendants may argue that due process is not implicated by the refusal to recognize outof-state marriages because same-sex couples like De Leon and Dimetman are still able to exercise their "right to marry." But refusing to recognize lawful out-of-state marriages is tantamount to refusing to permit people to marry at all. As the Supreme Court has recognized,
marriage conveys a host of rights, responsibilities, and benefits beyond the mere act of engaging
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in the ceremony of marrying. Windsor, 133 S. Ct. at 2694-66 (listing various benefits and rights). Just as the Supreme Court recognized that DOMA "divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force," Section 32 prevents Texas same-sex
married couples from taking on those duties and responsibilities. Id. at 2695; see also Turner, 482 U.S. at 94 (finding even considering limitations imposed by prison conditions, "important
attributes of marriage remain" such as being "expressions of emotional support and public commitment", matters of religious significance, precondition for benefits like Social Security, property rights, and legitimation of children). By declaring existing, lawful marriages void and denying married couples the rights, responsibilities, and benefits of marriages, Texas denies same-sex couples who have been married in other states of due process just as it does to same-
sex couples that seek to marry within in Texas. That they are able to obtain a marriage certificate or hold a ceremony in another state does not change that.
Accordingly, the refusal to recognize same-sex marriages lawfully performed in other states violates the equal protection and due process rights of couples like De Leon and Dimetman.
E. Baker v. Nelson Is No Longer Binding Precedent Because Subsequent Cases Undermined Its Reasoning.
In Baker v. Nelson, 409 U.S. 810 (1972), the Court dismissed "for want of a substantial federal question" an appeal from a Minnesota Supreme Court decision rejecting due process and equal protection challenges to Minnesota's refusal to issue a marriage license to a same-sex couple. See Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). Supreme Court summary dismissals are binding only "on the precise issues presented and necessarily decided." Mandel v. Bradley,
432 U.S. 173, 176 (1977) (per curiam). Even then, summary dismissals are binding on lower
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courts only to the extent that they have not been undermined by subsequent cases. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Baker was decided more than forty years ago, and subsequent doctrinal and societal developments completely undermine it.
Baker summary dismissal is not binding on the due process question here because it is impossible to reconcile with the Court's subsequent decisions in Lawrence and Windsor. As the Court found in Lawrence, the Constitution protects "personal decisions relating to marriage, procreation, contraception, family relationships, [and] child rearing" and gays and lesbians "may seek autonomy for these purposes." Lawrence, 539 U.S. at 574. More recently, Windsor recognized that citizens' decisions to marry someone of the same-sex are protected by the Constitution. Windsor, 133 5. Ct. at 2694.
Similarly, Baker 's equal protection ruling also has no precedential value. First, in Baker
the plaintiffs made an equal protection challenge based solely on sex discriminationnot on
discrimination based upon sexual orientation. Baker, 291 Minn. at 315; Jurisdictional Statement
at 16, Baker v. Nelson, No. 71-1027 ("The discrimination in this case is one of gender."). Baker
was decided before the Supreme Court recognized that sex is a quasi-suspect classification. Frontiero, 411 U.S. at 688. Baker also was decided before the Court recognized that the Constitution, including the Equal Protection and Due Process Clauses, protect gay men and lesbians. Windsor, 133 5. Ct. at 2694; Lawrence, 539 U.S. at 574; Romer, 517 U.S. at 635-36. Lastly, Baker was factually distinguishable, as it did not involve a state statute or constitutional amendment prohibiting same-sex marriage, and it did not involve a same-sex couple married in another state. See Baker, 191 N.W.2d at 185; see Ill. State Bd. of Elec. v. Socialist Workers, 440 U.S. 173, 182 (1979) (finding summary affirmance was not binding on "[q]uestions which
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merely lurk in the record, are not resolved, and no resolution of them may be inferred") (internal citations and quotations omitted).
Because Baker is premised on the subsequently rejected notion that the Constitution does not protect gay men and lesbians from discrimination, Baker is not controlling of the issues here.
II. The Court Should Issue A Preliminary Injunction Against Defendants' Enforcement Of Section 32. Courts consider four factors to determine if a preliminary injunction is proper: 1) the
plaintiffs' likelihood of success on the merits; 2) the threat of irreparable harm to the plaintiffs; 3)
whether the plaintiffs' potential injury outweighs any potential harm the defendant may suffer; and 4) whether the preliminary injunction disserves the public interest. DeerfIeld Med. Ctr v.
City ofDeerfield Beach, 661 F.2d 328, 332 (5th Cir. 1981).
Plaintiffs satisfy each of these requirements. Plaintiffs have shown that Section 32 and its related statutes violate their Fourteenth Amendment due process and equal protection rights.
Thus, Plaintiffs are likely to succeed on the merits. Because Section 32 violates their constitutional rights and Defendants can point to no harm that they will suffer if they are required to recognize and allow Plaintiffs' marriages, the equities greatly favor an injunction. See Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) ("[A] state is in no way
harmed by issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional. If anything, the system is improved by such an injunction."). Similarly, a preliminary injunction will not disserve the public interest. Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996) ("The School Prayer Statute is unconstitutional so the public interest was not disserved by an injunction preventing its implementation."). To the contrary, protecting Plaintiffs' constitutional rights serves the public interest. See Giovani Carandola, 303 F.3d at 521 ("[W]e agree with the district court that
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upholding constitutional rights surely serves the public interest."); Jornaleros de Las Palmas v. City of League City, Civil Action No. H-11-2703, 2013 WL2180013, at *15 (S.D. Tex. May 17, 2013).
Finally, Plaintiffs suffer irreparable harm, and will continue to suffer, irreparable harm because of Defendants' refusal to recognize and allow their marriages. An injury is irreparable if money damages cannot compensate for the harm. Deerjleld Med. Ctr., 661 F.2d at 332. While
Plaintiffs undoubtedly suffer financial harm from their inability to marry, see Badgett Decl. ¶J 32-68 (listing economic harms that Section 32 causes same-sex couples), no amount of money can compensate them for the denial of their constitutional rights. The fact that Section 32 denies Plaintiffs their constitutional right to marry is per se irreparable harm. Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable harm."); Deerfield, 661 F.2d at 338 ("We have already determined that the constitutional right of privacy is 'either threatened or in fact being impaired,' and this conclusion mandates a finding of irreparable harm.") (quoting Elrod, 427 U.S. at 373). Thus, Section 32 irreparable harms Plaintiffs, and this factor weighs in favor of a preliminary injunction.
A preliminary injunction is necessary because there is nothing this Court can do at a later date to erase the harms that Plaintiffs suffered today and will suffer every day forward until they obtain justice. Plaintiffs will continue to suffer state-sanctioned discrimination and the stigma that accompanies it until they too can enjoy the same rights that every heterosexual enjoys. See Ex. 58, Decl. of Ilan S. Meyer in Supp. of Pls' Mot. for Prelim. Inj. ("Meyer Decl.") ¶ 81 (Texas' same-sex marriage ban perpetuates the beliefs "that [lesbians and gay men] are uninterested in,
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unable to maintain, and, indeed, undeserving of close intimate relationships that are equal to those of heterosexual couples"). Plaintiffs' injury demands immediate relief.
Section 32 violates the United States Constitution, it irreparably harms Plaintiffs, and
each factor necessary for a preliminary injunction weighs in favor of Plaintiffs. Thus, the Court should issue a preliminary injunction against Defendants' enforcement of Section 32.
Conclusion
For the foregoing reasons, Plaintiffs respectfully request that the Court issue an order preliminarily enjoining Defendants from enforcing any constitutional or statutory provisions, including article I, section 32 of the Texas Constitution and Texas Family Code § 2.001 and 6.204, that prevent Plaintiffs Phariss and Holmes from marrying on the basis that they are of the same sex, or prevents the State from recognizing Plaintiffs' De Leon and Dimetman's marriage on the basis that they are of the same sex. Plaintiffs further request that the Court enter a preliminary injunction commanding Defendant Rickhoff to issue a marriage license to Plaintiffs Phariss and Holmes.
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Date: November 22, 2013

Respectfully submitted,

AKIN GUMP STRAUSS HAUER & FELD LLP

By:_IsI Daniel McNeel Lane. Jr. Barry A. Chasnoff(SBN 04153500)
bchasnoff@akingump.com Daniel McNeel Lane, Jr. (SBN 00784441)
nlaneakingump.com
Frank Stenger-Castro (SBN 19143500) fscastro@akingump.com Jessica Weisel (Pro Hac Vice) jweisel@akingump.com Michael P. Cooley (SBN 24034388)
mcooleyakingump.com
Matthew E. Pepping (SBN 24065894) mpepping@akingump.com 300 Convent Street, Suite 1600 San Antonio, Texas 78205 Phone: (210) 281-7000 Fax: (210) 224-2035

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE
I certify that on November 22, 2013, I served Defendants a copy of the foregoing
document via the Court's ECF system.

By:_/s/ Daniel McNeel Lane. Jr.
Daniel McNeel Lane, Jr.

CERTIFICATE OF CONFERENCE
I hereby certify that counsel has complied with the meet and confer requirement in Local Rule CV-7(i), and this motion is opposed. Counsel for Plaintiffs conferred with Counsel for Defendants via phone on November 22, 2013, and Defendants indicated they were opposed to Plaintiffs' motion for preliminary inj unction.

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By:_/sI Daniel McNeel Lane. Jr.
Daniel McNeel Lane, Jr.
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UNITED STATES DISTRICT COURT

WENEXAS FOR THE WESTERN DISTRICT OF TEXAS

FEB 2 6 2014
CLERK, U.S. DISTRICT

URT

SAN ANTONIO DIVISION

CLEOPATRA DE LEON, NICOLE

§

DIMETMAN, VICTOR HOLMES, and

§

MARK PHARISS,

§

Plaintiffs,

§

§

vs.

§

§

RICK PERRY, in his official capacity as

§

Governor of the State of Texas; GREG

§

ABBOTT, in his official capacity as Texas

§

Attorney General; GERARD RICKHOFF,

§

in his official capacity as Bexar County Clerk; §

and DAVID LAKEY, in his official capacity §

as Commissioner of the Texas Department of §

State Health Services,

§

Defendants.

§

Cause No. SA-13-CA-00982-OLG

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

On this day the Court considered Plaintiffs' Opposed Motion for Preliminary Injunction

(docket no. 28) and attached exhibits (docket no. 29), Defendants' response in opposition (docket

nos. 40 and 41), Plaintiffs' reply (docket no. 52), and the parties' oral argument held on February

12, 2014. Plaintiffs in this lawsuit include two couples: a gay couple who wishes to marry in the

State of Texas but who is unable to do so because the Texas Constitution prohibits same-sex

marriage, and a lesbian couple who married in Massachusetts, a state that allows same-sex

marriage, and who now seek to have their marriage recognized in Texas.

Plaintiffs challenge Texas' prohibition on same-sex marriage, set forth in Article I,

Section 32 of the Texas Constitution and corresponding provisions of the Texas Family Code

(hereinafter "Section 32"). They argue that the state's ban on same-sex marriage violates their

rights to due process and equal protection under the Fourteenth Amendment to the United States

Constitution. Accordingly, Plaintiffs seek a preliminary injunction enjoining Defendants from

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enforcing Section 32, and a declaratory judgment that Texas' ban on same-sex marriage and

Texas' failure to recognize out-of-state same-sex marriages is unconstitutional.

Regulation of marriage has traditionally been the province of the states and remains so

today. However, any state law involving marriage or any other protected interest must comply
-, with the United States Constitution. In United States v. Windsor, U.S. 133 S. Ct. 2675

(2013), the United States Supreme Court recently held that the federal government cannot refuse

to recognize a valid state-sanctioned same-sex marriage. Now, the lower courts must apply the

Supreme Court's decision in Windsor and decide whether a state can do what the federal

government cannotdiscriminate against same-sex couples.

The issue before this Court is whether Texas' current definition of marriage is

permissible under the United States Constitution. After careful consideration, and applying the

law as it must, this Court holds that Texas' prohibition on same-sex marriage conflicts with the

United States Constitution's guarantees of equal protection and due process. Texas' current

marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity

for no legitimate reason. Accordingly, the Court finds these laws are unconstitutional and hereby

grants a preliminary injunction enjoining Defendants from enforcing Texas' ban on same-sex

marriage.

I.

BACKGROUND

A. The Plaintiffs

The Plaintiffs in this case are two couples who either desire to marry in Texas or are

legally married in another state and now wish to have their same-sex marriage recognized in

Texas. The following facts regarding the parties in this case are undisputed and established in

the pleadings and supporting declarations.

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1. Cleopatra de Leon and Nicole Dimetman
Plaintiffs De Leon and Dimetman have been in a committed relationship since they met in 2001. De Leon is a United States Air Force veteran. She was on active duty for four years and served six years in the Texas Air National Guard. De Leon was honorably discharged after ten years of service. At the time she met Dimetman, De Leon was serving in the Texas Air National Guard while also working as a statistical analyst. Dimetman was running her own business.
As a couple, De Leon and Dimetman have supported one another as they pursued further education. During their time together, De Leon attended and completed graduate school,
receiving a Master's degree in Applied Statistics from the University of Texas at San Antonio. Meanwhile, Dimetman attended the University of Texas Law School and became an attorney licensed to practice in the State of Texas. De Leon and Dimetman continue to share finances,
live together, and have a loving, stable relationship. De Leon and Dimetman wanted to have a family, and it was important to them to marry
one another before they became parents. The couple wanted to marry in Texas, their home state, but Section 32 prevented them from doing so. Therefore, they chose to marry in Massachusetts, a state that recognizes same-sex marriage. They married in Boston on September 11, 2009, after having an eight-year solid, loving relationship.
In 2012, De Leon and Dimetman became parents to a child, C.' Although De Leon is C's biological mother, both her and Dimetman consider themselves C's mothers. They both share child-rearing duties and obligations. Because Texas does not recognize same-sex marriage, Dimetman could not be considered C's legal parent without going through the adoption process. Therefore, to obtain recognition as C's parent, Dimetman formally adopted C at considerable
expense.
1 The Court uses the letter C in referring to Plaintiffs' child in order to protect his/her identity.
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2. Victor Holmes and Mark Phariss
Plaintiffs Holmes and Phariss met in the spring of 1997. At the time, Holmes was in the
Air Force and stationed in San Antonio. Phariss was and remains an attorney licensed to practice in Texas. The couple quickly developed a friendship that became a dating relationship. On August 9, 1997, the couple went on their first date. They celebrate August 9 as their anniversary.
After dating for several months, Holmes and Phariss started living together. Holmes, who joined the Air Force when he was eighteen, began a military program to become a physician's assistant. After completing the program, the Air Force stationed Holmes at different bases throughout the country. Because Phariss continued to live and work in Texas, he and Holmes spent the next eleven years in a long-distance relationship. Depending on where Holmes was serving, Phariss and Holmes would travel as often as every week to see each other. During Holmes' final assignment at Sheppard Air Force base in Wichita Falls, Texas, Holmes and Phariss generally saw one another each weekend and on special occasions during the week.
Holmes honorably served our nation for nearly twenty-three years and retired as a Major at the end of 2010. After enduring an eleven-year, long-distance relationship, Holmes and Phariss were able to live together again. Holmes and Phariss now want to marry in Texas. On October 3, 2013, the couple applied for a marriage license at the Bexar County Clerk's office, but Defendant Gerard Rickhoff refused to issue one because Holmes and Phariss are both men.
B. The Defendants Defendant Rick Perry is the Governor of Texas, and Defendant Greg Abbott is Texas' Attorney General. They are both responsible for executing and defending the laws of the State of Texas and its Constitution.
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Defendant Gerard Rickhoff is the Bexar County Clerk. His duties include providing marriage applications, issuing marriage licenses, and determining whether individuals meet the requirements for marriage.
Defendant David Lakey is the Commissioner of the Texas Department of State Health Services, which includes the bureau of vital statistics. He is responsible for prescribing and furnishing to local clerks' offices the marriage forms that require applicants to list the names of a "bride" and a "groom."
C. Texas Laws at Issue Plaintiffs seek this Court to preliminarily enjoin Defendants from enforcing Article I, Section 32 of the Texas Constitution and corresponding provisions in the Texas Family Code
that ban same-sex marriage. This Order addresses these laws and the corresponding legislative history leading to their enactment.
1. Texas Family Code and the initial state ban on same-sex marriage The Texas legislature's ban on same-sex marriage dates back to 1997 when Section 2.00 1 of the Texas Family Code was enacted. Section 2.00 1 prohibits the clerk of any Texas county from issuing a marriage license to persons of the same gender. See TEx. FAM. CODE ANN. §
2.001(b) (West 2013). In 2003, the Texas legislature amended the Texas Family Code to add Section 6.204,
which among other things, prohibits recognition in Texas of lawful same-sex marriages executed in other jurisdictions.2 Section 6.204 declares void all marriages between persons of the same sex and all civil unions. TEx. FAM. CODE ANN. § 6.204(b). It also prohibits the State and any of
its agencies and political subdivisions from giving effect to any:
2 See Act of Sept. 1, 2003, 78th Leg., R.S., ch. 124, § 1 (West 2003); TEx. FAM. CODE ANN. § 6.204 (West 2013).
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(1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in the state or in 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 in any other jurisdiction.
TEX. FAM. CODE Ai'. § 6.204(c). Supporters of Section 6.204 claimed:
The protective marriage relationship between a man and a woman is a fundamental institution whose purpose is the propagation of the species in humanity's collective interest. The state has an interest in protecting this relationship, because it gives women and children the surest protection against poverty and abuse, provides for the healthy psychological development of children, and avoids health risks of same-sex relations and promiscuity. The state's recognition of same-sex marriages would undermine the institution of marriage and society's ability to transmit its values to younger generations.
HOUSE RESEARCH ORG., Focus REPORT, MAJOR ISSUES OF THE 78TH LEG., REG. SESS., No. 7812, at 83 (Tex. Aug. 6, 2003). In addition to the grounds cited in the legislative report,
supporters of the bill claimed it was necessary to prohibit the recognition of out-of-state civil unions because these: (1) "would create a new class of children without mothers or fathers" that
"would increase costs to corporations and governmental entities;" (2) "could lead to the recognition of bigamy, incest, pedophilia, and group marriage," and (3) "[i]f the state does not
draw the line here, it would be difficult to draw it anywhere." See HOUSE RESEARCH ORG.,
DAILY FLOOR REPORT, 78TH LEG., REG. SESS., at 27-29 (Tex. Apr. 29, 2003).
2. Texas Cons/itutionalAmendment Article I, Section 32 of the Texas Constitution began as House Joint Resolution No. 6 (hereinafter "H.J.R. 6"), which proposed to amend the Texas Constitution to define marriage as "the union of only one man and one woman." H.J.R. Res. 6, 79th Leg., Reg. Sess. (Tex. 2005).
On April 25, 2005, subdivision (b) was added, which expressly bars the State and any political
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subdivision thereof from creating or recognizing any legal status identical or similar to marriage. See TEx. CONST. art. I, § 32(b).
The legislative history of H.J.R. 6 shows that the amendment was supported by the same purported rationale as Section 6.204 of the Texas Family Code. The primary argument in support of H.J.R. 6 was:
[T]raditional marriage consisting of a man and a woman is the basis for a healthy,
successful, stable environment for children. It is the surest way for a family to enjoy good health, avoid poverty, and contribute to their community. The
sanctity of marriage is fundamental to the strength of Texas' families, and the
state should ensure that no court decision undermine this fundamental value. HOUSE RESEARCH ORG., H.J.R. 6 BILL ANALYSIS, 79TH LEG., REG. SESS., at 3-4 (Tex. Apr. 25,
2005). The authors of the amendment drafted it to preclude not only same-sex couples from
marrying, but also any "separate but equal" same-sex institution, such as a civil union. See HOUSE RESEARCH ORG., FOCUS REPORT, AMENDMENTS PROPOSED FOR NOVEMBER 2005 BALLOT, No. 79-10, at 9 (Tex. Sept. 15, 2005) (noting civil unions should not be permitted because they would be a "way for same-sex couples to circumvent laws protecting marriage by creating a legal arrangement that is substantially the same as marriage").
H.J.R. 6 passed following votes in both houses of the Texas legislature. Under Texas law, the governor's approval is not necessary to put a proposed constitutional amendment on an
electorate ballot. See TEx. CONST. art. 17, § 1(a). Nevertheless, in early June 2005, Governor Rick Perry signed the proposed constitutional amendment at the Calvary Christian Academy in Fort Worth, Texas.
After approval by the Texas legislature and Defendant Perry, H.J.R. 6 was placed on the
electorate ballot in 2005 as Proposition 2. Proposition 2 passed with approximately 76% of the
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vote. As a result, Article I of the Texas Constitution now includes the following amendments
under Section 32:
(a) Marriage in this state shall consist only of the union of one man and one
woman. (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage. TEX. CONST. art. I, § 32.
D. National Debate on Same-Sex Marriage In the last couple of decades, our nation has experienced a politically charged and controversial debate regarding the right to marry, and particularly, the right of same-sex couples to marry in the United States. Both state and federal governments have taken center stage in this
debate, participating in court proceedings or enacting legislation that either supports or bans same-sex marriage.
1. Other states 'positions on same-sex marriage In 1993, the Hawaii Supreme Court was the first court that opened the door to same-sex marriage, holding that the state's prohibition on same-sex marriage was discriminatory under the Hawaii Constitution. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 59 (1993). The court remanded the case to allow the state to justify its position and show if the marriage statute was
narrowly drawn to further a compelling state interest. Id. at 68.
In 1999, the Vermont Supreme Court held that the state of Vermont was required to offer all the benefits of marriage to same-sex couples. Baker v. Vermont, 170 Vt. 194, 744 A.2d 864, 866-67 (1999). The determination of whether to provide such benefits to same-sex partners by
including them within the marriage statutes, or by creating a parallel domestic partnership system
On remand, the circuit court held Hawaii's marriage statute was unconstitutional. Baehr v. Mike, Civ. No. 9113945, 1996 WL 694235, at *22 (Haw. Cir. Ct. Dec. 3, 1996). The government was unable to show the statute furthered a compelling state interest. Id. at *21.
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or some equivalent statutory alternative, was left to the Vermont legislature. See id. at 886. The Vermont legislature complied with this mandate by creating a legal status for civil unions. See An Act Relating to Civil Unions, 2000 Vt. Acts & Resolves 91 § 1(1) (legislative findings). This was the nation's first law granting gay couples nearly all marriage benefits through the formation of a civil union.4 The reaction to this legislation was immediate and visceral in the next few years. See Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729, at *2 n. 1 (W.D. Ky. Feb. 12, 2014) (citing statutes from over twenty-seven states that enacted anti-same-sex marriage legislation).
Then, in 2003, two cases significantly changed the treatment and protection of
homosexuals under the law. First, the United States Supreme Court ruled that the Due Process
Clause of the Fourteenth Amendment protected the sexual relations and privacy of gay men and
lesbians. Lawrence v. Texas, 539 U.S. 558, 578 (2003). Second, the Massachusetts Supreme
Court declared that the Massachusetts constitution protected the right of same-sex couples to
marry, and therefore, that the state's ban on same-sex marriage violated its own state constitution. Goodridge v. Dep 't ofPub. Health, 798 N.E. 2d 941, 948, 969 (Mass. 2003).
Since 2003, states continue to have polarizing views on the issue of same-sex marriage; that is, most states have either legalized same-sex marriage or passed a constitutional amendment
or other legislation prohibiting same-sex marriage and civil unions. To this day, six states have legalized same-sex marriage through state court decisions (California, Connecticut, Iowa, Massachusetts, New Jersey, New Mexico); eight states have passed same-sex marriage legislation (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island, Vermont); and three states have legalized same-sex marriage through popular vote (Maine,
"In September 1, 2009, the Vermont legislature later permitted same-sex marriage through a statute. See 15 V.S.A. § 9, which redefines marriage as the "legally recognized union of two people."
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Maryland, Washington). See Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6697874, at *5 4 (D. Utah Dec. 20, 2013).
2. Federal government and same-sex marriage
The federal government has also participated in the same-sex marriage debate. In 1996, Congress passed the Defense of Marriage Act (DOMA), which, among other things, barred
federal recognition of same-sex marriages deemed legal in other states and barred same-sex civil unions for purposes of federal law. Act. of Sept. 21, 1996, Pub. L. 104-199, 110 Stat. 2419. In 2013, the Supreme Court held in United States v. Windsor that Section 3 of DOMA was
unconstitutional. 133 S. Ct. at 2696. That same year, the Supreme Court also considered an appeal from a case involving
California's Proposition 8. After the California Supreme Court held that California's constitution recognized same-sex marriage, In re Marriage Cases, 43 Cal 4th 757, 76 Cal. Rptr. 3d 683, 183 P.3d 384 (2008), California voters passed Proposition 8 in November 2008, which amended California's constitution to prohibit same-sex marriage. Then, a California federal court
determined that Proposition 8 violated the guarantees of equal protection and due process under the United States Constitution. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1003 (N.D. Cal. 2010). The Ninth Circuit Court of Appeals affirmed the district court's holding in Perry v. Brown, 671 F.3d 1052, 1095 (9th Cir. 2012), rev'd, 133 5. Ct. 2652 (2013). The case was then appealed to the Supreme Court, but the Court did not address the merits of the question presented. Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013). Instead, the Court vacated the Ninth Circuit's opinion for lack of jurisdiction, finding the proponents of Proposition 8 did not have standing to appeal the district court's decision after California officials refused to defend
the law. Id.
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Most recently, six federal district courts have issued decisions declaring states' bans on same-sex marriage to be unconstitutional. See Lee v. Orr, No. 13-cv-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) (applied only to Cook County, Illinois); Bostic v. Rainey, No. 2:13-cv395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014) (Virginia); Bourke, 2014 WL 556729 (Kentucky); Bishop v. United States ex rel. Holder, No. 04-cv-848-TCK-TLW, 2014 WL 116013 (N.D. Okia. Jan. 14, 2014) (Oklahoma); Obergefell v. Wymyslo, No. 1:13-cv-501, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013) (Ohio); Kitchen, 2013 WL 6697874 (Utah).

A. Preliminary Matters

II. ANALYSIS

1. Plaintiffs' standing

As a preliminary matter, the Court notes that Defendants' pleadings and written briefs neither address nor challenge Plaintiffs' standing in this case.5 However, the Court addresses the
issue of standing as it is one of subject-matter jurisdiction. See Cobb v. Central States, 461 F.3d
632, 635 (5th Cir. 2006). Federal courts have no jurisdiction unless a case or controversy is presented by a party with standing to litigate. Taylor ex rel. Gordon v. Livingston, 421 F. App'x 473, 474 (5th Cir. 2011) (quoting Nevares v. San Marcos Consol. md. Sch. Dist., 111 F.3d 25, 26 (5th Cir. 1997)).

A plaintiff must meet three elements to establish standing. First, a plaintiff must have suffered an injury in fact which is concrete and particularized. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Second, a plaintiff must establish a causal connection between the
injury and the conduct complained of Id. Third, it must be likely, as opposed to merely

In the preliminary injunction hearing, Defendants mentioned, for the first time, that Plaintiffs had "not made a clear showing that they ha[d] standing to raise claims" in this case, because they had not explained what injury they had suffered. Oral Arg. Tr. p. 43.
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speculative, that the injury will be redressed by a favorable decision. Id. (quoting Simon v. E.
Ky. Welfare Rights Org., 426 U.s. 26, 38 (1976)).
There is no dispute that Plaintiffs are loving couples in long-term committed relationships, who seek to marry in Texas or have their out-of-state same-sex marriage recognized in Texas. Plaintiffs claim they have suffered real and particularized injuries as a
direct result of Defendants' enforcement of Texas' laws banning same-sex marriage. These injuries include far-reaching legal and social consequences, along with the pain of humiliation,
stigma, and emotional distress. For example, Plaintiffs note that Texas' refusal to marry or recognize same-sex marriage
denies them many state law benefits. Plaintiffs argue that, among other things, current Texas laws do not allow them to:
(1) claim statutory protections afforded to married couples upon the death of a
spouse, such as intestacy rights. TEx. PROBATE CODE § 38, 45;
(2) bring an action for wrongful death. TEx. Civ. PRAC. & REM. CODE §
71.004;
(3) claim certain protections against the partition of the homestead following the death of a spouse. TEX. CONST. art. 16, § 52;
(4) receive the community property presumption afforded to married couples. TEx. FAM. CODE § 3.003;
(5) petition the court for an equitable division of community property,
including rights in any pension or retirement plan. TEX. FAM. CODE §
7.00 1, 7.003;
(6) seek spousal maintenance if they separate or divorce. TEX. FAM. CODE §
8.05 1;
(7) enjoy the benefit of the "zone of privacy" that heterosexual married couples enjoy in the form of evidentiary privileges between spouses. TEx.
R. EvID. 504;
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(8) enjoy succession rights under state laws of intestacy. TEx. PROB. CODE §
45; or (9) have the right to make burial or other decisions regarding the handling and
disposition of one another's remains.
On October 3, 2013, Plaintiffs Holmes and Phariss applied for a marriage license from the Bexar County Clerk Rickhoff' s office. Defendant Rickhoff refused to issue a license because Holmes and Phariss are both men. This denial establishes an Article III injury. See Parker v. D.C., 478 F.3d 370, 376 (D.C. Cir. 2007) (holding that courts have consistently treated a license or permit denial pursuant to a state or federal administrative scheme as an Article III injury); see also Bishop, 2014 WL 116013, at *14 (noting couple proved standing because they sought marriage license and were denied such license because of their same-sex couple status); see also Bostic, 2014 WL 561978, at *14. Meanwhile, Plaintiffs De Leon and Dimetman contend that because Texas does not recognize same-sex marriage, Dimetman could not be considered their child's
legal parent unless she went through the long administrative and expensive process of adoption. The Court finds these monetary damages constitute a concrete, injury in fact suffered by Plaintiffs due to Texas' ban on same-sex marriage.
Furthermore, Plaintiffs allege they have suffered state sanctioned discrimination, stigma,
and humiliation as a result of Texas' ban on same-sex marriage. Plaintiffs claim they are considered inferior and unworthy under Texas law. Stigmatic injury is a form of injury that
supports standing in this case. See Allen v. Wright, 468 U.S. 737, 755 (1984) (finding that
stigmatic injury often caused by discrimination is a type of noneconomic injury that may be sufficient to support standing); see also Bostic, 2014 WL 561978, at *14 (same). In this case, it is clear that Plaintiffs suffer humiliation and discriminatory treatment under the law on the basis of their sexual orientation, and this stigmatic harm flows directly from Texas' ban on same-sex
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marriage. See Bishop, 2014 WL 116013, at *9 Furthermore, in equal protection cases when the government erects a barrier to prevent one group from obtaining a benefit that another group
receives, "[t]he injury in fact. . . is the denial of equal treatment resulting from the imposition of the barrier." Ne. Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of Jacksonville, F/a., 508 U.s. 656, 666 (1993). Accordingly, the Court finds all Plaintiffs in this case have established the denial of equal treatment under Texas law. The Court finds Plaintiffs have
satisfied the first standing requirement by establishing they have suffered injuries. Plaintiffs have also established the causation element needed for standing, as the injuries
raised are directly related to Texas' ban on same-sex marriage. See Lujan, 504 U.s. at 560. Finally, the Court finds Plaintiffs meet the third standing requirement. If this Court issues an injunction prohibiting Defendants from enforcing Texas' marriage laws, Plaintiffs' injuries will be redressedPlaintiffs would be allowed to marry, or have their out-of-state same-sex marriage recognized in Texas. This would allow Plaintiffs to be eligible for the many state-law benefits they are now denied. Accordingly, the Court finds Plaintiffs have standing to bring the claims
before this Court.
2. Baker v. Nelson 's Precedential Value The next preliminary matter involves Defendants' assertion that Plaintiffs' claims are foreclosed by Supreme Court precedent in Baker v, Nelson, 409 U.S. 810 (1972). In 1971, two men from Minnesota brought a lawsuit in state court arguing that Minnesota was constitutionally required to allow same-sex marriage. Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972). The Minnesota Supreme Court found that Minnesota's restriction of marriage to opposite-sex couples did not violate either the equal protection or the due process clause of the Fourteenth Amendment. Id. at 186-87. On appeal, the United States
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Supreme Court summarily dismissed the case "for want of a substantial federal question." Baker, 409 U.S. at 810. As a result, Defendants contend that the Court's summary dismissal in Baker is binding on this Court and the present lawsuit should be dismissed for lack of a
substantial federal question. There is no dispute that summary dispositions by the Supreme Court are considered
precedential and binding on lower courts. See Mandel v. Bradley, 432 U.S. 173, 176 (1977) (noting summary dispositions prevent lower courts from coming to opposite conclusions on the issues presented and decided by those actions). There is also no dispute that the questions presented in Baker are similar to the questions presented here. Both cases involve challenges to
the constitutionality of a state statute which prohibits same-sex marriage. The ruling of the Supreme Court of Minnesota rejected due process and equal protection arguments similar to
those presented by Plaintiffs in this case. However, summary dispositions may lose their precedential value and are no longer binding "when doctrinal developments indicate otherwise." Hicks v. Miranda, 422 U.S. 332, 344 (1975) (quoting Port Auth. Bondholder 's Protective Comm.
v. Port ofNY. Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967)). Baker was decided more than forty years ago. This Court finds that subsequent doctrinal and societal developments since 1972 compel this Court to conclude that the summary dismissal in Baker is no longer binding, and that the issue of same-sex marriage now presents a substantial federal question.
First, in 1973, the Supreme Court recognized that sex is a quasi-suspect classification. See Frontiero v. Richardson, 411 U.S. 677, 688 (1973). Then, the Supreme Court recognized a new form of heightened scrutiny and applied it to sex-based classifications. See Lalli v. Lalli, 439 U.S. 259, 264-65 (1978); Craig v. Boren, 429 U.S. 190, 197-98 (1976). In 1996, the Supreme Court held that a Colorado constitutional amendment targeting homosexuals based
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upon animosity lacked a rational relation to any legitimate governmental purpose. See Romer v. Evans, 517 U.S. 620, 634-35 (1996) (citing Dep't ofAgr. v. Moreno, 413 U.S. 528, 534 (1973)) ("[I]f the constitutional conception of 'equal protection of the laws' means anything, it must at
the very least mean that a bare. . . desire to harm a politically unpopular group carmot constitute
a legitimate governmental interest.") (emphasis added). Then, in 2003, the Court held that homosexuals had a protected liberty interest to engage
in private, sexual activity; that homosexuals' moral and sexual choices were entitled to constitutional protection; and that moral disapproval did not provide a legitimate justification for a Texas law criminalizing sodomy. See Lawrence, 539 U.S. at 564, 571. The Court held that the Constitution protects "personal decisions relating to marriage, procreation, contraception, family relationships, [and] child rearing" and that homosexuals "may seek autonomy for these purposes." Id. at 574.
Most recently, in 2013, the United Supreme Court held that the Constitution prevented the federal government from treating state-sanctioned heterosexual marriages differently than state-sanctioned same-sex marriages, and that such differentiation "demean[ed] the couple, whose moral and sexual choices the Constitution protects." See Windsor, 133 S. Ct. at 2694.
Notably, that same year, while the Court declined to reach the merits in Perry v. Hollingsworth because the petitioners lacked standing to pursue the appeal, the Court did not dismiss the case outright for lack of a substantial federal question. See 133 S. Ct. at 2652.
Accordingly, the Court finds that these cases present the type of doctrinal developments that render Baker's summary dismissal of no precedential value. It is now clear that while state
bans on same-sex marriage may have been deemed an "unsubstantial" question in 1972, the issue is now a "substantial" federal question based on doctrinal developments in Supreme Court law.
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See Windsor v. United States, 699 F.3d 169, 178 (2d Cir. 2012), aff'd, 133 S. Ct. 2675 (2013) (holding that Baker was not controlling as to the constitutionality of DOMA, reasoning that "[i]n the forty years after Baker, there have been manifold changes to the Supreme Court's equal protection jurisprudence" and that "[e]ven if Baker might have had resonance. . . in 1971, it does not today")
Defendants in this case allege that, despite the doctrinal developments in the abovementioned cases, some courts have found that Baker survives as controlling precedent and
precludes consideration of the issues in this lawsuit. During oral argument, Defendants referred to Merritt v. Attorney General, No. 3:13-cv-215-BAJ-SCR, 2013 WL 6044329 (M.D. La. Nov. 14, 2013) as support for their argument that Baker precludes this Court from analyzing the merits of Plaintiffs' claims. Oral Arg. Tr. p. 36.
In Merritt, the court considered a pro Se, in forma pauperis, plaintiffs lawsuit challenging Louisiana's ban on same-sex marriages. Id. at * 1. The plaintiff was a detainee at the East Louisiana Mental Health System Forensic Unit. Id. Following a show cause order and no briefing, the court dismissed plaintiffs complaint noting the "Constitution does not require
States to permit same-sex marriages;" the unidentified state legislators named as defendants were "entitled to absolute immunity from liability under § 1983 for their legislative activities;" and the plaintiff failed to allege any facts against the Attorney General. Id. at *2.
The court in Merritt did not indicate the bases for its ruling. Furthermore, the viability of Baker was never briefed in Merritt. In fact, the plaintiff did not submit briefing on any substantive issue. Therefore, this Court does not find Merritt to be persuasive in this case and declines to follow it. Rather, this Court joins four recent district court decisions rejecting the argument that Baker still has precedential value and bars courts from addressing the issue of
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same-sex marriage. See Bostic, 2014 WL 561978, at *9_lU; Bourke, 2014 WL 556729, at *1; Bishop, 2014 WL 116013, at *15_17; Kitchen, 2013 WL 6697874, at *7_9 The Court finds Baker is not controlling and does not bar this Court from reviewing Plaintiffs' claims in this case.
B. Preliminary Injunction The Court now considers Plaintiffs' constitutional challenges to Texas' laws banning same-sex marriage in the context ofthe preliminary injunction Plaintiffs seek. 1. Standard of Review A plaintiff requesting the extraordinary remedy of a preliminary injunction must establish the following four factors: (1) a substantial likelihood of success on the merits; (2) a substantial
threat that failure to grant the injunction will result in irreparable injury; (3) the threatened injury outweighs any damage that the injunction may cause the opposing party; and (4) the injunction
will not disserve the public interest. Winter v. Natural Res. Def Council, Inc., 555 U.s. 7, 20 (2008); Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1050 (5th Cir. 1997).
2. Application (A) Likelihood of Success In order to determine whether Plaintiffs are likely to prevail on the merits, this Court must address Plaintiffs' constitutional challenges to Texas' marriage laws, primarily Section 32. Plaintiffs contend that Texas' refusal to allow and recognize same-sex marriage violates their equal protection and due process rights under the Fourteenth Amendment. (i) Equal Protection Challenge
Plaintiffs in this case contend that Texas' refusal to allow them to marryor refusal to
recognize their state-sanctioned out-of-state marriagepursuant to Article I, Section 32 of the
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Texas Constitution deprives them of equal protection. The Equal Protection Clause of the Fourteenth Amendment commands that no state shall deny to any person within its jurisdiction the equal protection of the laws. See U.S. CONST. amend. XIV, § 1. This essentially means that
all persons similarly situated should be treated alike. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). The Constitution "neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.s. 537, 559 (1896) (Harlan, J., dissenting). While a "law enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons," it must nevertheless, at least, "bear a rational relationship to a legitimate governmental purpose." Romer, 517 U.S. at 635.
Plaintiffs argue that refusing to permit a same-sex couple to marry under Section 32(a), and failing to recognize legal out-of-state same-sex marriages pursuant to Section 32(b), "demeans the couple, whose moral and sexual choices the Constitution protects." Windsor, 133 S. Ct. at 2694 (citing Lawrence, 539 U.S. at 588). Just like the federal law the Court in Windsor
reviewed, Section 32 identifies a "subset" of relationships (i.e. same-sex relationships) for which
Texas denies the same equal rights, responsibilities, and benefits that opposite-sex couples receive through marriage. Therefore, Plaintiffs contend Section 32 is subject to equal protection review.
Laws reviewed under the Equal Protection Clause are subject to one of three levels of scrutiny: strict scrutiny, intermediate scrutiny, or rational basis review. Clark v. Jeter, 486 U.S.
456, 461 (1988). Strict scrutiny applies to suspect classifications based on race, alienage, or national origin. City of Cleburne, 473 U.S. at 440. Under strict scrutiny review, a state must show the challenged classification is narrowly tailored to further a compelling governmental
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interest. Grutter v. Bollinger, 539 U.S. 306, 326 (2003). Intermediate or heightened scrutiny applies to quasi-suspect, discriminatory classifications based on illegitimacy and gender. Cleburne, 473 U.S. at 441. To survive heightened scrutiny review, a classification must be substantially related to a sufficiently important governmental interest. Id. All other classifications are subject to rational basis review. Id. at 440-41. Under rational basis review, a
classification will be upheld as long as there is a rational relationship between the disparity of
treatment and some legitimate governmental purpose. Heller v. Doe, 509 U.S. 312, 319 (1993). (a) Plaintiffs argue Texas' marriage laws should be subject to heightened scrutiny Plaintiffs argue that Section 32 discriminates against them on the basis of their sexual
identity in violation of the Equal Protection Clause. When a state law adversely affects members of a certain class, but does not significantly interfere with their fundamental rights, courts first
determine how closely they should scrutinize the challenged regulation. Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 458-61 (1988).
The Supreme Court consistently applies heightened scrutiny to laws that discriminate against a group that it considers a suspect or quasi-suspect classification, i.e. one that has
experienced a "history of purposeful unequal treatment or [has] been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities." Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976). In addition to looking at a history of
discrimination, courts also consider whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society, Cleburne, 473 U.S. at 440-41; whether the distinguishing characteristic is "immutable" or beyond the group member's control, Lyng v. Castillo, 477 U.S. 635, 638 (1986); and whether the group is "a minority or politically powerless," Bowen v. Gilliard, 483 U.S. 587, 602 (1987). Plaintiffs argue that homosexuals
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fulfill all four factors to be considered a suspect or quasi-suspect classification, and therefore, that this Court should review Texas' same-sex marriage ban under heightened scrutiny.
Plaintiffs note that homosexuals have suffered a long history of discrimination. This long history of discrimination against homosexuals is widely acknowledged in federal American jurisprudence. See, e.g., Lawrence, 539 U.s. at 571 ("[F]or centuries there have been powerful
voices to condemn homosexual conduct as immoral" and "lesbians and gay men have suffered a
long history of discrimination and condemnation."); Rowland v. Mad River Local Sch. Dist.,
Montgomery Cnly., Ohio, 470 U.S. 1009, 1014 (1985) (J. Brennan, dissenting) ("Moreover,
homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is 'likely . . . to reflect deep-seated prejudice rather than . . . rationality."); High Tech Gays v. Def Indus. Sec. Clearance Office, 895 F .2d 563, 573 (9th Cir. 1990) ("[H]omosexuals have suffered a history of discrimination."); BenShalom v. Marsh, 881 F.2d 454, 465-66 (7th Cir. 1989) ("Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree."); Baker v. Wade, 769 F.2d
289, 292 (5th Cir. 1985) (noting that "the strong objection to homosexual conduct . . . has prevailed in Western culture for the past seven centuries.").
The Court agrees that throughout history, many federal and state laws have categorically discriminated against homosexuals. For example, in 1952, Congress prohibited gay men and women from entering the country. See Obergefell, 2013 WL 6726688, at *14; see also Boutilier
v. INS, 387 U.S. 118, 120 (1967) (concluding that the legislative history of the Immigration and Nationality Act of 1952 "indicate[d] beyond a shadow of a doubt that the Congress intended the
phrase 'psychopathic personality' to include homosexuals" and labeled homosexuals "ill"). In
1953, President Eisenhower issued an executive order requiring the discharge of homosexual
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employees, among others, from all federal employment, and this policy remained in place until 1975. See Exec. Order No. 10450, 18 FR 2489 (1953); see also Employment of Homosexuals and Other Sex Perverts in Government, Interim Report submitted to the Committee by its Subcommittee on Investigations pursuant to S. Res. 280 81st Congress (December 15, 1960), at 9 (finding that between 1947 to 1950, approximately 1,700 applicants for federal positions were denied employment because of their homosexuality, which was considered a "sex perversion" that made them "unsuitable" and a "security risk" for the jobs). Furthermore, until the Supreme Court's decision in Lawrence in 2003, consensual homosexual conduct was criminalized in many states. Golinski, 824 F. Supp. 2d. at 983-84. Before 2011, homosexuals could not openly serve in the military, and the military still criminalizes sodomy today. Obergefell, 2013 WL 6726688, at *14. Therefore, Plaintiffs have established that homosexuals have been subjected to a long history of discrimination.
Plaintiffs argue that, like other suspect classifications, sexual orientation has no "relation to [the] ability" of a person "to perform or contribute to society." CUy of Cleburne, 473 U.S. at 440-41; see Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 3 18-19 (D. Conn. 2012) ("[T]he long-held consensus of the psychological and medical community is that 'homosexuality per se implies no impairment in judgment, stability, reliability or general or social or vocational capabilities.") (quoting 1973 RESOLUTION OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1002 (N.D. Cal. 2010) ("[B]y every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal."); see also Watkins v. US. Army, 875 F.2d 699, 725 (9th Cir. 1989) ("Sexual orientation plainly has no relevance to a person's ability to perform or contribute to society.")
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Plaintiffs also contend sexual orientation is immutable. As the Supreme Court acknowledged, sexual orientation is so fundamental to a person's identity that one ought not be
forced to choose between one's sexual orientation and one's rights as an individualeven if one
could make a choice. Lawrence, 539 U.S. at 576-77 (recognizing that individual decisions by consenting adults concerning the intimacies of their physical relationships are "an integral part of human freedom"). Many federal courts agree with Plaintiffs' assertion. See, e.g., Perry, 704 F. Supp. 2d at 964-66 (holding sexual orientation is fundamental to a person's identity); Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (holding that sexual orientation and sexual identity are immutable). Furthermore, the scientific consensus is that sexual orientation is an immutable characteristic. See Pedersen, 881 F. Supp. 2d at 320-21 (finding that
the immutability of sexual orientation "is supported by studies which document the prevalence of long-lasting and committed relationships between same-sex couples as an indication of the enduring nature of the characteristic."); Perry, 704 F. Supp. 2d at 966 ("No credible evidence
supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation."); see also G.M. Herek, et al., Demographic, Psychological, and Social Characteristics of Self-Identfled Lesbian, Gay, and
Bisexual Adults in a US. Probability Sample, 7 SEXUALITY REs. & Soc. POL'Y 176, 186, 188
(2010) (noting that in a national survey, 95 percent of gay men and 84 percent of lesbian women reported that they "had little or no choice about their sexual orientation.")
Finally, Plaintiffs note that homosexual citizens constitute a minority group that lacks sufficient political power to protect themselves against discriminatory laws. In fact, the history
of same-sex marriage bans across the nation illustrates the historical lack of political power
possessed by gays and lesbians. Plaintiffs point out that not only do homosexuals fit all factors
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to be considered a suspect classification, but in fact, several courts have already admitted as much. See, e.g., SmithKline Beecham Corp. v. Abbott Labs, 740 F.3d 471, 480-84 (9th Cir.
2014) (holding use of peremptory strike against gay juror failed heightened scrutiny); see also
Pedersen, 881 F. Supp. 2d at 294 (finding statutory classifications based on sexual orientation
are entitled to heightened scrutiny); Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 314-
33 (N.D. Cal. 2012) (same). The Court finds Plaintiffs' arguments compelling, and at this preliminary injunction
stage, it shows an increased likelihood they will ultimately prevail on the merits. Likely, the Fifth Circuit, and eventually the United States Supreme Court, will weigh in on this issue with clear instructions. For now, the Court finds it is not necessary to apply heightened scrutiny to Plaintiffs' equal protection claim since Texas' ban on same-sex marriage fails even under the
most deferential rational basis level of review. (b) Section 32 fails equal protection challenge even under rational basis review To survive a rational basis review, Section 32 must bear at least some rational
relationship to a legitimate governmental purpose. Romer, 517 U.S. at 631; see City ofCleburne,
473 U.S. at 446 (holding that even when there is a legitimate government purpose, the discrimination must bear at least some rational relationship to that purpose); Heller, 509 U.S. at 321 (noting that rational basis test requires that the proffered justification for a law "must find some footing in the realities of the subject addressed by the legislation."). Courts insist on knowing the relation between the classification adopted and the object to be attained. Romer, 517 U.S. at 632. A law will not survive rational basis unless it is "narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s]." Id. at 632-33.
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Defendants in this case have identified two bases or purposes for Section 32: (1) to
increase the likelihood that a mother and a father will be in charge of childrearing; and (2) to
encourage stable family environments for responsible procreation. These bases fail rational basis review as explained below.
(1) Childrearing There is no doubt that the welfare of children is a legitimate state interest; however,
limiting marriage to opposite-sex couples fails to further this interest. Instead, Section 32 causes needless stigmatization and humiliation for children being raised by the loving same-sex couples being targeted. See Bostic, 2014 WL 561978, at * 18. "Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners." Perry, 704 F. Supp. 2d at 967. Homosexual couples are as
capable as other couples of raising well-adjusted children. See id. at 980 ("Children raised by
gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted"); Varnum v. Brien, 763 N.W.2d 862, 899 (Iowa 2009) ("Plaintiffs
presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents
and opposite-sex parents.") Defendants have not provided any evidentiary support for their assertion that denying
marriage to same-sex couples positively affects childrearing. Accordingly, this Court agrees with other district courts that have recently reviewed this issue and concludes that there is no
rational connection between Defendants' assertion and the legitimate interest of successful childrearing. To the contrary, this Court finds that far from encouraging a stable environment for childrearing, Section 32 denies children of same-sex parents the protections and stability they
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would enjoy if their parents could marry. See Obergefell, 2013 WL 6726688, at *20 (noting the
only effect the marriage recognition bans have on children's weli-being is harming the children
of same-sex couples who are denied the protection and stability of having parents who are legally married); see also Golinski, 824 F. Supp. 2d at 992 ("The denial of recognition and withholding of marital benefits to same-sex couples does nothing to support opposite-sex parents, but rather merely serves to endanger children of same-sex parents."); Pedersen, 881 F. Supp. 2d at 336-37 (finding that the denial of marriage to same-sex parents "in fact leads to a
significant unintended and untoward consequence by limiting the resources, protections, and
benefits available to children of same-sex parents.")
Furthermore, Defendants' proferred reason fails rational basis because Defendants have
failed to establish how recognizing a same-sex marriage can influence, if at all, whether
heterosexual couples will marry, or how other individuals will raise their families. See Bishop, 2014 WL 116013, at *29 ("Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included."). As the Utah court in Kitchen noted:
[lit defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. Both opposite-sex and same-sex couples model the formation of committed, exclusive relationships, and both establish families based on mutual
love and support. 2013 WL 6697874, at * 25. Defendants' proferred rationale presumes that same-sex couples
cannot be good parentsthis is the same type of unconstitutional and unfounded presumption
that the Supreme Court has held "cannot stand." See, e.g. Stanley v. Illinois, 405 US. 645, 653 (1972) (holding a state could not conclusively presume that any particular unmarried father is
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unfit to raise a child). The Court finds same-sex couples can be just as responsible for a child's welfare as the countless heterosexual couples across the nation.
(2) Procreation The procreation argument raised by Defendants also fails. The notion that same-sex
marriage will encourage responsible procreation assumes that heterosexual marriage is "naturally procreative." However, procreation is not and has never been a qualification for marriage. Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) ("[W]hat justification could there possibly be
for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation since the sterile and elderly are
allowed to marry."); Golinski, 824 F. Supp. 2d at 993 ("The ability to procreate cannot and has never been a precondition to marriage."). This procreation rationale threatens the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose
to refrain from procreating. See Bishop, 2014 WL 116013, at *30. These individualswho cannot or will not procreateare allowed to marry under Texas' current laws.
Therefore, Section 32 makes "no sense in light of how [it] treat[s] other groups similarly
situated in relevant respects," and consequently, "encouraging stable environments for procreating" does not provide a rational basis for Section 32. See Bd. of Trs. of Univ. ofAla. v.
Garrett, 531 U.S. 356, 366 n.4 (2001); see also Goodridge v. Dep't ofPublic Health, 798 N.E.2d
941, 962 (Mass. 2003) ("General Laws c. 207 contains no requirement that applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married."); Baker v. State, 744 A.2d 864, 881 (Vt. 1999) ("It is equally undisputed that many opposite-sex couples marry for reasons unrelated to
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procreation, that some of these couples never intended to have children, and that others are incapable of having children. Therefore, if the purpose of the statutory exclusion of same-sex couples is to 'further the link between procreation and child rearing,' it is significantly
underinclusive."). Defendants have failed to establish how banning same-sex marriage in any way furthers
responsible procreation. "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages." Perry, 704 F. Supp. at 972. Same-sex
marriage does not make it more or less likely that heterosexuals will marry and engage in activities that can lead to procreation. See, e.g., id. at 999; Goodridge, 798 N.E.2d at 962. As the Ninth Circuit aptly put it: "It is implausible to think that denying two men or two women the
right to call themselves married could somehow bolster the stability of families headed by one man and one woman." Perry, 671 F.3d at 1089.
In fact, rather than serving the interest of encouraging stable environments for procreation, Section 32 hinders the creation of such environments. See Bishop, 2014 WL
116013, at *31; Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 378 (D. Mass. 2010)
(concluding that Section 3 of DOMA did nothing to help children of opposite-sex parents but prevented children of same-sex couples from enjoying advantages flowing from a stable family structure); Goodridge, 798 N.E.2d at 335. As Plaintiffs De Leon and Dimetman can attest, same-sex couples, although unable to "naturally procreate," can and do have children. See Windsor, 133 5. Ct. at 2694 (recognizing that laws prohibiting same-sex marriage "humiliate[] tens of thousands of children now being raised by same-sex couples."); see also Bishop, 2014
WL 116013, at *29. Just like heterosexual couples, same-sex couples can have children through
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assisted reproductive technology and adoption. See Golinski, 824 F. Supp. 2d at 992 ("[S]ame sex parents can and do have and adopt children."); Baker, 744 A.2d at 882 ("[T]he reality today is that increasing number of same-sex couples are employing increasingly efficient assistedreproductive techniques to conceive and raise children.")
Therefore, Section 32 is not connected to any legitimate interest that justifies the denial of same-sex marriage or recognition of legal out-of-state same-sex marriages. To the contrary, as an Ohio district court recently found when confronted with the same question, the only "purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: 'to impose inequality' and to make gay citizens unequal under the law." Obergefell, 2013 WL 3814262, at
*6.6
Therefore, the Court finds the argument that allowing same-sex couples to marry will undermine procreation is nothing more than an unsupported "overbroad generalization" that cannot be a basis for upholding discriminatory legislation. See Plyler, 457 U.S. at 217-18.
(3) Tradition
While Defendants do not expressly advance "tradition" as a rational basis for Section 32, they refer to the "traditional definition of marriage" and appeal to how it is "traditionally understood." However, tradition, alone, cannot form a rational basis for a law. See Lawrence,
539 U.S. at 602 (Scalia, J., dissenting) ("Preserving the traditional institution of marriage. . . is just a kinder way of describing the State's moral disapproval of same-sex couples," which, in
turn, is not a legitimate reason); Williams v. Illinois, 399 U.S. 235, 239 (1970) ("Neither the

The Obergefell court held that Ohio's refusal to recognize out-of-state same-sex marriages violated equal

protection Maryland.

and issued
Id. at *7

an

injunction

requiring

the

state

to

recognize

a

same-sex

marriage

lawfully

performed

in

Case 5:13-cv-00982-OLG Document 73 Filed 02/26/14 Page 30 of 48
antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack."); Perry, 704 F. Supp. 2d at 998 ("[T]he state must have an interest apart from the fact of the tradition itself."); Golinski, 824 F. Supp. 2d at 998 ("[TJhe argument that the definition of marriage should remain the same for the definition's sake is a circular argument, not a rational justification.")
Notably, the rationale provided by Defendants as legitimate interests to support Section 32 (procreation, childrearing, and perhaps tradition), is the same rationale that has been uniformly rejected by district courts in the most recent same-sex marriage cases. See, e.g., Bostic, 2014 WL 561978, at *15 (noting that "tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia's ban on interracial marriage."); Bourke, 2014 WL 556729, at *7 (holding that tradition cannot alone justify the infringement on individual liberties); Bishop, 2014 WL 116013, at *29 (holding that permitting same-sex couples to receive a marriage license does not harm or erode the procreative origins of
the marriage institution, any more than marriages of couples who cannot or do not ever wish to
"naturally procreate"); Obergefell, 2013 WL 6726688, at *20 (holding there is simply no rational
connection between Ohio's same-sex marriage recognition bans and the asserted goal of responsible childrearing, given that Ohio's ban does not prevent gay couples from having
children); Kitchen, 2013 WL 6697874, at *25 (noting that where state offered no evidence that opposite-sex couples would be affected by allowing same-sex marriage, "any relationship between [the ban] and the state's interest in responsible procreation 'is so attenuated as to render
the distinction arbitrary or irrational.") (quoting City of Cleburne, 473 U.S. at 446); Griego v.
Oliver, 316 P.3d 865, 886 (N.M. 2013) ("Regarding responsible procreation, we fail to see how
forbidding same-gender marriages will result in the marriages of more opposite-gender couples
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for the purpose of procreating, or how authorizing same-gender marriages will result in the marriages of fewer opposite-gender couples for the purpose of procreating.").
Accordingly, the Court finds Defendants have failed to showand the Court has been unable to findsome rational relationship between Section 32 and a legitimate governmental
purpose. The Court finds Section 32 is unconstitutional because without a rational relationship to a legitimate governmental purpose, it denies same-sex couples the benefits, dignity and value of celebrating marriage and having their out-of-state marriage recognized. Therefore, the Court holds all Plaintiffs have established a likelihood of prevailing on the merits of their equal protection challenge to Texas' ban on same-sex marriage and refusal to recognize out-of-state same-sex marriages.
Because Plaintiffs have shown that Texas' same-sex marriage ban violates their equal protection rights, the law is unconstitutional without the need to reach any other constitutional
challenge. Accordingly, Plaintiffs are likely to succeed on the merits of their case.
(ii) Due Process Challenge Since this is a preliminary order, the Court also considers Plaintiffs' due process challenge and their likelihood of success on this separate constitutional claim.
(a) Right to marry (1) Marriage as a fundamental right The Due Process Clause of the Fourteenth Amendment guarantees that all citizens have certain fundamental rights. See Planned Parenthood v. Casey, 505 U.S. 833, 846-47 (1992).
Plaintiffs Holmes and Phariss contend that Texas' refusal to allow them to marry, pursuant to
Article I, Section 32(a) of the Texas Constitution, deprives them of one of these fundamental
rights. Plaintiffs argue that while states have the right to adopt regulations including defining
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marriage, such regulations may not infringe on an individual's fundamental constitutional rights. Defendants counter that it is the State's right to define marriage free from federal interference. They assert that the issues before this Court are "inherently political questions" and not "constitutional issues." Oral Arg. Tr. p. 32.
While Texas has the "unquestioned authority" to regulate and define marriage, see Windsor, 133 S. Ct. at 2693, the State must nevertheless do so in a way that does not infringe on an individual's constitutional rights. See id. at 2692 (noting that the incidents, benefits, and
obligations of marriage may vary from state to state but are still subject to constitutional
guarantees); see Roberts v. US. Jaycees, 468 U.S. 609, 620 (1984) (holding that our federal Constitution "undoubtedly imposes constraints on the state's power to control the selection of one's spouse"); see also Carey v. Population Servs. Int'l, 431 U.S. 678, 684-85 (1977) ("[lIt is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education.").
Therefore, contrary to Defendants' assertion that the issues before this Court are "inherently political questions," see Oral Arg. Tr. p. 32, this Court finds that it must determine: (1) what individual rights are at stake in this case; (2) whether those rights are protected by the
United States Constitution; (3) and if so, whether Texas' current definition and regulation of
marriage impermissibly infringes on those constitutional rights. The Constitution guarantees that all citizens have certain fundamental rights. These
rights vest in every person whom the Constitution protects and, because they are so important, an individual 's fundamental rights may not be submitted to vote and may not depend on the
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outcome ofelections. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis
added).
The State does not dispute that the right to marry is one of the fundamental rights
protected by the United States Constitution. Oral Arg. Tr. p. 37 (arguing Texas marriage law does not violate Plaintiffs' "fundamental" right to marry). See, e.g., Zablocki v. Redhail, 434
U.S. 374, 384 (1978) ("[D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals."); United S'tates v. Kras, 409 U.S. 434, 446 (1973)
(concluding the Court has come to regard marriage as fundamental); Loving v. Virginia, 388 U.S.
1, 12 (1967) ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."); Skinner v. Okia. ex. rel. Williamson, 316 U.S. 535, 541(1942) (noting marriage is one of the basic civil rights of man fundamental to our existence and survival); Maynard v. Hill, 125 U.S. 190, 205, 211(1888) (characterizing marriage as "the most important relation in life" and as "the foundation of the family and society,
without which there would be neither civilization nor progress.")
While the right to marry is not explicitly mentioned in the text of the Constitution, this right is nevertheless protected by the guarantee of liberty under the Due Process Clause. For
example, in Casey, the Supreme Court explicitly noted:
Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was
illegal in most States in the 19th century, but the Court was no doubt correct in
finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia. 505 U.S. at 847-48; see Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (recognizing that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment); see also Meyer v.
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Nebraska, 262 U.S. 390, 399 (1923) (holding the right to marry is a central part of the liberty
protected by the Due Process Clause). The Supreme Court has also recognized the right to marry implicates additional rights
that are protected by the Fourteenth Amendment, including the rights to privacy, liberty, and association in marriage. See, e.g., ML.B. v. S.L.J., 519 U.S. 102, 116 (1996) (citing Boddie v. Connecticut, 401 U.S. 371, 376 (1971)) (noting that choices about marriage, family life, and children upbringing are among the association rights the Court considers sheltered by the Fourteenth Amendment and protected against the State's unwarranted usurpation, disregard, or disrespect); Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (noting that marriage involves "a
right of privacy older than the Bill of Rights" and is a "coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred."). This fundamental right to marry also entails the ability to marry the partner of one's choosing. See generally Loving, 388 U.S. at 12 (noting due process is violated by the denial of the right to marry a person of another
race).
Most recently, the Supreme Court recognized that marriage involves one of "the most
intimate and personal choices a person may make in a lifetime." Lawrence, 539 U.S. at 574 (quoting Casey, 505 U.S. at 851). The right to marry is "central to personal dignity and autonomy. . . central to the liberty protected by the Fourteenth Amendment." Id. The Court in Lawrence also recognized that "{p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Id.
(2) The State may not infringe on an individual's fundamental rights Given the importance of marriage as a fundamental right and its relation to an individual's rights to liberty, privacy, and association, the Supreme Court has not hesitated to
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invalidate state marriage laws whenever such laws intrude on an individual's protected realm of liberty. For example, the Court struck down Virginia's law against interracial marriage in Loving v. Virginia, 388 U.S. at 12. The Court found that Virginia's anti-miscegenation statute violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Id,
In this case, Defendants argue the right to marry does not include the right to same-sex marriage. That is, Defendants claim this is a "definitional" issue, in that Plaintiffs are seeking recognition of a "new right to same-sex marriage" as opposed to the existing "right to marry." This Court finds this argument fails, as the Supreme Court did not adopt this line of reasoning in
the analogous case of Loving v. Virginia. Instead of declaring a new right to interracial marriage, the Court held that individuals could not be restricted from exercising their "existing" right to marry on account of their chosen partner. Loving, 388 U.S. at 12. That is, an interracial marriage was considered to be a subset of "marriage," in the same way that same-sex marriage is
included within the fundamental right to marry. See Casey, 505 U.S. at 847-48. Section 32(a)
explicitly defines marriage as the union of a man and a woman, and in doing so, denies homosexuals the "existing right to marry" and to select the partners of their choosing. This, in
turn, violates due process in the same fashion as the anti-miscegenation laws struck down in Loving. See id.
Plaintiffs Holmes and Phariss seek to exercise the right to marry the partner of their choosing, just as the plaintiffs in Loving did, despite the State's purported moral disdain for their choice of partner. As noted by the court in Kitchen:
The alleged right to same-sex marriage that the State claims Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.
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2013 WL 6697874, at *16; see also Bostic, 2014 WL 561978, at *12 ("Plaintiffs ask for nothing
more than to exercise a right that is enjoyed by the vast majority of. . . adult citizens.").
This Court finds that Texas cannot define marriage in a way that denies its citizens the "freedom of personal choice" in deciding whom to marry, nor may it deny the "same status and dignity" to each citizen's decision. See Windsor, 133 5. Ct. at 2689. By denying Plaintiffs Holmes and Phariss the fundamental right to marry, Texas denies their relationship the same status and dignity afforded to citizens who are permitted to marry. It also denies them the legal, social, and financial benefits of marriage that opposite-sex couples enjoy.
As the Supreme Court recently recognized, a state's "definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital
responsibilities." Id. at 2691; see also Turner v. Safley, 482 U.S. 78, 96 (1987) ("[M]arital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits
(e.g., legitimation of children born out of wedlock)."); Massachusetts v. US. Dep 't of Health & Human Servs., 682 F.3d 1, 11 (1st Cir. 2012) ("Loss of survivor's social security, spouse-based
medical care and tax benefits are major detriments on any reckoning; provision for retirement and medical care are, in practice, the main components of the social safety net for vast numbers of Americans.")
(3) Texas marriage laws do not survive strict scrutiny By categorically denying the fundamental right to marry to a class of citizens, Section
32(a) "interfere[sJ directly and substantially with the right to marry" and can withstand
constitutional challenge only if it survives strict scrutiny. See Zablocki, 434 U.S. at 3 86-87
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(applying strict scrutiny because statute that prevented non-custodial parents from marrying
unless they provided proof of compliance with child support obligations or obtained a court order
would prevent some people from ever marrying). Section 32 survives strict scrutiny and is
constitutional only if it is supported by compelling state interests and narrowly tailored to effectuate oniy those interests. See Reno v. F/ores, 507 U.S. 292, 302 (1993); Zablocki, 434 U.s.
at 388; Carey, 431 U.S. at 686.
Overall, the Court finds Defendants have not satisfied their burden of proving that
Section 32 is constitutional. Defendants have failed to identify any rational, much less a compelling, reason that is served by denying same-sex couples the fundamental right to marry. Consequently, the Court finds that Plaintiffs have shown a likelihood of success on the merits by showing that Texas' marriage laws violate their due process rights under the Fourteenth Amendment.
(b) Out-of-state marriage recognition The Court now addresses Plaintiffs De Leon and Dimetman's due process challenge to Article I, Section 32(b), which prevents Texas from recognizing their legal out-of-state same-sex
marriage. The Court considers the right to same-sex marriage, which the Court finds to be a "subset" of the existing fundamental right to marry, to be separate and different than the right to
marriage recognitionthat is, the right of same-sex couples to have their out-of-state marriage
recognized in other states (i.e. Texas).
In dealing with the issue of out-of-state same-sex marriage recognition, the Supreme
Court in Windsor held that by treating state-sanctioned same-sex married couples differently than state-sanctioned opposite-sex married couples, Section 3 of DOMA violated basic due process principles applicable to the federal government. 133 5. Ct. at 2693. In this case, the Court must
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decide whether a state can do what the federal government cannotdiscriminate against state-
sanctioned same-sex couples and deny them the benefits conferred by marriage. The Court in Windsor did not clarify whether out-of-state marriage recognition
implicated a fundamental right, but held that it was a right protected under the Constitution. See id. at 2696 (holding DOMA was unconstitutional as a deprivation of liberty of the person protected by the Fifth Amendment). Therefore, in reviewing Plaintiffs' due process constitutional challenge to Section 3 2(b), this Court applies a rational basis review, since Section 32(b) fails even under this most deferential standard.
(1) Failure to recognize out-of-state marriage lacks rational basis
Under rational basis review, the Court must determine whether Texas' marriage laws, specifically Section 32(b) banning recognition of legal out-of-state same-sex marriages, is rationally related to a legitimate government purpose. This search for a rational relationship "ensure[sI that classifications are not drawn for the purpose of disadvantaging the group
burdened by the law." Romer, 517 U.S. at 633. Even under this most deferential standard of
review, courts must still "insist on knowing the relation between the classification adopted and the object to be attained." id. at 632.
Under Texas law, marriages are presumptively valid in Texas and will be upheld against claims of invalidity "unless a strong reason exists for holding the marriage void or voidable." TEX. FAM. CODE AIrmT. § 1.101 (West 2013). Consistent with that presumption, "[t]he general rule is that a marriage valid where contracted is valid everywhere, and that one void where contracted is void everywhere." Portwood v. Portwood, 109 S.W.2d 515, 522 (Tex. Civ. App.
1937). "The validity of a marriage is generally determined by the law of the place where it is
celebrated." Husband v. Fierce, 800 S.W.2d 661, 663 (Tex. App.Tyler 1990, no writ); see
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also Tex. Emp'r Ins. Ass'n v, Borum, 834 S.W.2d 395, 399 (Tex. App.San Antonio 1992, writ
denied) ("[Tihe validity of a marriage is generally determined by the law of the place where it is celebrated rather than the law of the place where suit is filed."); Braddock v. Taylor, 592 S.W.2d 40, 42 (Tex. Civ. App. 1979) (same). Therefore, even if Texas itself would not allow a particular marriage to occur within its borders, that marriage generally must be recognized in Texas if lawfully performed in another state or country. See Husband, 800 S.W.2d at 662-63 (noting that although no county clerk in Texas could have lawfully issued a marriage license to a Texas girl without her parents' consent or a court order, a marriage performed in Mexico was legal and
would be recognized under Texas law); cf Braddock, 592 S.W.2d at 42 (refusing to recognize a common law marriage in Texas because California did not recognize common law marriages).
Defendants argue that Plaintiffs' claims are foreclosed by Section 2 of DOMA, 28 U.S.C.
§ 173 8C. Section 2 provides that states may choose not to recognize same-sex marriage, which Defendants contend is authorized by the Full Faith and Credit Clause. This clause states:
Full faith and credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effects thereof U.S. CONST., art. IV, § 1. Plaintiffs in this case are challenging Texas law, arguing that Section 32 denies them equal protection and due process. Whatever powers Congress may have under the Full Faith and Credit Clause, "Congress does not have the power to authorize the individual States to violate the Equal Protection Clause." Graham v. Richardson, 403 U.S. 365, 382 (1971). The Court in Graham rejected an argument similar to the one Defendants raise in this case, finding that Arizona could not impose a discriminatory fifteen-year residency requirement on aliens seeking government aid despite Arizona's claim that a federal statute gave states the authority to set their own guidelines. Id. at 3 82-83. Therefore, the Court finds Defendants'
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argument unpersuasive, and holds DOMA is not a barrier to Plaintiffs' claims that Section 32 is unconstitutional because it denies recognition to out-of-state same-sex marriages.
As the Supreme Court has recognized, marriage conveys a host of rights, responsibilities, and benefits beyond the mere act of engaging in the ceremony of marriage. Windsor, 133 5. Ct.
at 2694-96 (listing various marriage benefits and rights). Just as the Supreme Court noted that DOMA "divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force," this Court finds that Section 32(b) prevents Texas same-sex married couples from taking on those duties and responsibilities. See id. at 2695; see also Turner, 482 U.S. at 94 (finding that even considering limitations imposed by prison conditions, important benefits and attributes of marriage remain). This Court finds that by declaring existing, lawful same-sex marriages void and denying married couples the rights, responsibilities, and benefits of marriage, Texas denies same-sex couples who have been married in other states their due process.
Furthermore, Section 32(b) demeans one group by depriving them of rights provided for
others. As noted by the Supreme Court in Windsor: Responsibilities, as well as rights, enhance the dignity and integrity of the person.
And [Texas' laws] contrive[] to deprive some couples [married out of state], but not other couples [married out of state], of both rights and responsibilities. By
creating two contradictory marriage regimes within the same State, [Texas' laws]
force[] same-sex couples to live as married for the purpose of [federal law] but unmarried for the purpose of [Texas] law. . . . This places same-sex couples [married out of state] in an unstable position of being in a second-tier marriage [in Texas]. The differentiation demeans the couple, whose moral and sexual choices
the Constitution protects. See id. (quoting Windsor, 133 S. Ct. at 2693). In Texas, heterosexual couples enjoy the rights
and responsibilities of marriage. By preventing same-sex couples from receiving state and
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federal governmental benefits afforded to heterosexual married couples, it places same-sex couples "in an unstable position of being. . . second-tier [citizens]." See id.
Applying a rational basis test, this Court does not find justification for the disparate treatment of homosexuals. Defendants have not provided any specific grounds that justify the refusal to recognize "lawful, out-of-state same-sex marriages that is not related to the impermissible expression of disapproval of same-sex married couples." See Id. Defendants mention that Texas' "public policy" allows the state to deny recognition to valid out-of-state marriages, but fail to articulate what that "public policy" is. Assuming Defendants' public policy argument refers to preserving Texas' definition of traditional marriage, the Court finds that tradition alone cannot justify the infringement on individual liberties. See Heller, 509 U.S. at 326. Moreover, Defendants fail to explain how any such public policy can reconcile recognizing some out-of-state marriages but not recognize same-sex marriages.
Plaintiffs assert that it is not enough for Texas to disapprove of same-sex marriage; rather, it must declare them void. See Husband, 800 S.W. at 662-63. Therefore, for Texas' public policy to allow Texas to deny recognition of out-of-state marriages, it must declare that
when a same-sex married couple crossed the Texas border, their marriage not only did not exist for purpose of Texas law, but never existed at all. This Court agrees with Plaintiffs' assertion that this notion defies logic.
Accordingly, this Court finds Texas' refusal to recognize Plaintiffs' out-of-state same-sex marriage violates due process and implicates the associational rights discussed in cases like
Griswold and Zablocki. See Obergefell, 2013 WL 3814262, at *6. "Even if there were proffered
some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the
41

Case 5:13-cv-00982-OLG Document 73 Filed 02/26/14 Page 42 of 48
ban imposed on same-sex couples legally married in other states." Id. In other words, even if Defendants had presented a legitimate reason for the enactment of Section 32(b), the Court finds it would be hard to show how this reason is directly connected and outweighs the refusal of
individual rights to some citizens while the same rights are conferred on others.
Accordingly, the Court holds all Plaintiffs have established a likelihood of prevailing on the merits of their due process challenge to Texas' ban on same-sex marriage.
(B) Irreparable injury In order to receive the extraordinary remedy of a preliminary injunction, Plaintiffs also
have to establish that there is a substantial threat that failure to grant the injunction will result in irreparable injury. Winter, 555 U.S. at 20; Valley, 118 F.3d at 1050. Plaintiffs allege that Texas'
refusal to permit them to marry or recognize their out-of-state marriage deprives Plaintiffs of numerous federal protections, benefits, and obligations that are available to married same-sex
couples. See Windsor, 133 S. Ct. at 2683 (noting that over 1,000 federal laws address marital or spousal status). These federal rights include, among others, having the same rights as heterosexual married couples in one another's Social Security benefits, 42 U.S.C. § 416, seeking protections under the Family and Medical Leave Act, 29 U.S.C. § 2612, and federal Medicaid benefits.
Plaintiffs allege that same-sex couples residing in Texas cannot rely upon an out-of-state marriage to confer federal protections, benefits, and obligations. Texas same-sex couples who marry in another state must contend with substantial uncertainty regarding whether the federal government will recognize their marriage for all purposes. For instance, while the Internal Revenue Service recently adopted a "state of celebration" rule in recognizing same-sex marriages, it is unclear whether any other federal agencies will enact similar rules.
42

Case 5:13-cv-00982-OLG Document 73 Filed 02/26/14 Page 43 of 48
Indeed, the Department of Labor recently announced that the Family Medical Leave Act
applies only to same-sex couples that reside in states recognizing their marriage. Section 32 and the corresponding Texas Family Code statutes similarly operate to deny certain benefits to gay and lesbian service members. In an August 30, 2013 letter to military personnel at state-run installations, Texas Military Forces were directed to deny same-sex couples enrollment access to federal healthcare and retirement benefits at Texas-based National Guard facilities. Instead, these service members and their families must travel to federal installations elsewhere in the state
to enroll and obtain access to standard military benefits. In response, United States Secretary of Defense, Chuck Hagel, reprimanded Texas and the Texas National Guard for failing to grant full spousal benefits to the partners of gay and lesbian members of the armed forces. The Court finds
that Texas' refusal to marry or recognize Plaintiffs' marriage also denies them many state-law benefits, previously noted in this opinion.
Furthermore, Plaintiffs have established a likelihood of success in their constitutional challenges to Section 32. Plaintiffs have shown that continued enforcement of Section 32 infringes on their due process and equal protection rights under the Fourteenth Amendment to the United States Constitution. Federal courts at all levels have recognized that violation of constitutional rights constitutes irreparable harm as a matter of law. See, e.g, Cohen v. Coahoma County, Miss., 805 F. Supp. 398, 406 (N.D. Miss. 1992). An injury is irreparable if money damages cannot compensate for the harm. DeerfIeld Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 332 (5th Cir. 1981). Not only have Plaintiffs suffered financial harm and expenses due to their inability to marry (e.g, adoption expenses), but they correctly note that no amount of money can compensate the harm for the denial of their constitutional rights. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (noting that loss of constitutional "freedoms, for even
43

Case 5:13-cv-00982-OLG Document 73 Filed 02/26/14 Page 44 of 48
minimal periods of time, unquestionably constitutes irreparable injury"); Deerfield, 661 F.2d at 338 (noting impairment of the constitutional right to privacy mandates a finding of irreparable harm). Accordingly, this Court finds Plaintiffs have carried their burden of establishing they would suffer irreparable injury if Section 32 continues to be enforced by Defendants.
(C) Iniury outwei!hs damage from injunction
For the Court to issue a preliminary injunction enjoining Defendants from enforcing Texas' ban on same-sex marriage, Plaintiffs must establish that their threatened injuries outweigh any damage that the injunction may cause to the State. See Winter, 555 U.S. at 20; Valley, 118 F.3d at 1050. Plaintiffs allege the equities greatly favor an injunction, as there is no
harm from issuing a preliminary injunction that prevents the enforcement of a likely unconstitutional statute. See Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002). Plaintiffs note that a preliminary injunction is necessary because otherwise they will continue to suffer state-sanctioned discrimination and the stigma that accompanies it until they can enjoy the same rights as heterosexual couples.
Defendants argue a preliminary injunction would irreparably harm the State. Defendants argue that enjoining democratically enacted legislation harms state officials by restraining them
from implementing the will of the people that they represent. Maryland v. King, 133 S. Ct. 1, 3
(2012); New Motor Vehicle Bd. v. Orrin W. Fox. Co., 434 U.S. 1345, 1351 (1977) ("[A]ny time a State is enjoined by a Court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury."). However, this Court disagrees with Defendants. As noted
by Plaintiffs during oral argument, "the Fourteenth Amendment-- [including] the Equal
Protection Clause and the Due Process Clause [found within]was ratified by the American
people and made law. That is a protection that was voted upon. And a citizen in the United
44

Case 5:13-cv-00982-OLG Document 73 Filed 02/26/14 Page 45 of 48
States does not have to go to the ballot box to secure equal protection of the laws." Oral Arg. Tr. p. 50. That is, an individual's federal constitutional rights are not submitted to state vote and may not depend on the outcome of state legislation or a state constitution. See Barnette, 319
U.S. at 638. Therefore, Defendants' first argument fails. Defendants' next argument, that Plaintiffs' harms are illusory, also fails because this
Court finds Plaintiffs have established irreparable harm through the enforcement of Section 32. Accordingly, the Court finds Defendants have failed to show that the balance of harm favors the State, and finds that the balance of equities favor an injunction.
(9) Public interest Finally, Defendants contend that enforcement of duly enacted law is inherently in the
public interest. Defendants argue that a preliminary injunction in this case would override a
constitutional amendment and the statutory policy of the legislature, which are themselves "declaration[s] of public interest and policy which should be persuasive." Virginian Ry. Co. v. Sys. Fed'n No. 40, 300 U.S. 515, 552 (1937). However, the Court finds that it is in the public interest to override legislation that, as found here, infringes on an individual's federal constitutional rights. "[T]he public interest is promoted by the robust enforcement of constitutional rights." Am. Freedom Def Initiative v. Suburban 15 Mobility for Reg. Transp.,
698 F.3d 885, 896 (6th Cir. 2012). Therefore, a preliminary injunction preventing the enforcement of an unconstitutional law serves, rather than contradicts, the public interest. Ingebretsen v. Jackson Pub. Sch, Dist., 88 F.3d 274, 280 (5th Cir. 1996).
Defendants also contend that an injunction at this preliminary stage would be injurious to
public interest because it would effectively change the legal definition of marriage in Texas, rewriting over 150 years of Texas law, and radically altering the status quo. As mentioned
45

Case 5:13-cv-00982-OLG Document 73 Filed 02/26/14 Page 46 of 48
earlier, this Court finds that keeping tradition and history intact is not a justification for the infringement of an individual's rights.
Finally, Defendants argue that a preliminary injunction would create numerous legal and practical problems for same-sex couples and Defendants alike, because any decision from this Court would likely be undone by an interlocutory decision of the Fifth Circuit, or a ruling on appeal by the Fifth Circuit or the Supreme Court. They argue that any marriages created on the
basis of the preliminary injunction will cease to exist when and if the State's definition of
marriage is enforceable at a later time. However, as noted by this Court during oral argument,
the Court intends to stay execution of this order pending appeal to prevent any legal and practical
complications.7
III. CONCLUSION
The role of the judiciary is to resolve disputes by applying the law to the facts of a particular controversy, independently and impartially. One of the court's main responsibilities is to ensure that individuals are treated equally under the law. Equal treatment of all individuals
under the law is not merely an aspirationit is a constitutional mandate. Consequently, equal
protection is at the heart of our legal system and is essential for the existence of a free society.
For the first time, during oral argument, Defendants argued that if the Court granted a preliminary injunction, it would be limited to the Plaintiffs in this case pursuant to Rule 65 of the Federal Rules of Civil Procedure. Oral Arg.
Tr. p. 47. The Court disagrees. Rule 65(d) states that an injunction only binds the parties in a lawsuit. FED. R. CIV.
P. 65(d). However, it does not limit the applicability of the injunctionthat is, who is affected by the injunction. In
this case, because Plaintiffs brought a facial challenge to Section 32, the Court's injunction applies to all same-sex couples who wish to marry in Texas or want to have their out-of-state same-sex marriage recognized in Texas. See
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F. Supp. 2d 891, 901 (W.D. Tex. 2013) (enjoining enforcement of a provision that required abortion providers to have hospital privileges within thirty miles of the clinic where they practice, after the court held the provision did not survive a facial challenge and was deemed
unconstitutional). Section 32 fails the constitutional facial challenge because, as mentioned before, Defendants have
failed to provide anyand the Court finds norational basis that banning same-sex marriage furthers a legitimate
governmental interest; that is, the Court fmds "no set of circumstances" under which Section 32 would be valid. See United States v. Salerno, 481 U.S. 739, 745 (1987); Barnes v. Moore, 970 F.2d 12, 14 (5th Cir. 1992) (holding that when Plaintiffs bring a facial challenge to a law, it must be established that there are no set of circumstances under which the law would be valid).
46

Case 5:13-cv-00982-OLG Document 73 Filed 02/26/14 Page 47 of 48
Today's Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. Furthermore, Supreme Court precedent prohibits states from passing legislation born out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).
Applying the United States Constitution and the legal principles binding on this Court by
Supreme Court precedent, the Court finds that Article I, Section 32 of the Texas Constitution and corresponding provisions of the Texas Family Code are unconstitutional. These Texas laws deny Plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex.
The Court finds this denial violates Plaintiffs' equal protection and due process rights under the Fourteenth Amendment to the United States Constitution.
Accordingly, Plaintiffs have carried their burden of clearly showing that the extraordinary remedy of a preliminary injunction is appropriate in this case. Plaintiffs have shown a likelihood of success on the merits, i.e. that Section 32 is unconstitutional; have established that continued enforcement of Section 32 would cause them irreparable harm; have shown that their injuries outweigh any potential harm to Defendants; and finally, the Court concludes a preliminary injunction barring Section 32's enforcement will serve the public interest. See Winter, 555 U.S. at 20; Valley, 118 F.3dat 1050.
47

Case 5:13-cv-00982-OLG Document 73 Filed 02/26/14 Page 48 of 48

For these reasons, the Court GRANTS Plaintiffis Motion for Preliminary Injunction (docket no. 28). The Court enjoins Defendants from enforcing Article 1, Section 32 of the Texas Constitution, any related provisions in the Texas Family Code, and any other laws or regulations
prohibiting a person from marrying another person of the same sex or recognizing same-sex
marriage.
In accordance with the Supreme Court's issuance of a stay in Herbert v. Kitchen, and consistent with the reasoning provided in Bishop and Bostic, this Court stays execution of this preliminary injunction pending the final disposition of any appeal to the Fifth Circuit Court of
Appeals. It is so ORDERED.

SIGNED this

day of

V Z6'fr4

, 2014.

United States District Judge Orlando L. Garcia

48

 
 Case 5:13-cv-00982-OLG Document 91 Filed 12/12/14 Page 1 of 6

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

CLEOPATRA DE LEON, et al.

§

Plaintiffs,

§

1 2 2014

CLERK WESrE

U.s.
DIT

c
OF TEXAS

§

v.

§

§

RICK PERRY, in his official capacity as

§

Governor of the State of Texas, et al.,

§

Defendants,

§

Cause No. SA-13-CA-00982-OLG

§

ORDER DENYING PLAINTIFFS' MOTION TO LIFT THE STAY OF INJUNCTION On this day the Court considered Plaintiffs' Opposed Motion to Lift the Stay of
Injunction (docket no. 83), Defendants' response in opposition (docket no. 84), and Plaintiffs'
reply thereto (docket no. 86). The parties have also submitted notices of additional recent authority in support of their arguments (docket nos. 87, 88, 89 and 90). After careful
consideration, the Court finds Plaintiffs' motion should be DENIED.

I.

BACKGROUND

On February 27, 2014, this Court held that Texas's laws prohibiting same-sex marriage and denying recognition of same-sex marriages entered in other states (hereinafter "Section 32") were unconstitutional. See De Leon v. Perry, 975 F. Supp. 2d 632, 665-66 (W.D. Tex. 2014). The Court granted Plaintiffs' motion for preliminary injunction, enjoining Defendants from enforcing Section 32. Id. However, the Court also "stay[ed] execution of this preliminary injunction pending the final disposition of any appeal to the Fifth Circuit Court of Appeals." Id. On March 7, 2014, the Court granted Defendants' unopposed motion to stay proceedings pending appeal of the preliminary injunction order (docket no. 76).

1

Case 5:13-cv-00982-OLG Document 91 Filed 12/12/14 Page 2 of 6

On November 24, 2014, Plaintiffs filed a motion asking the Court to lift the stay of injunction. In support of their motion, Plaintiffs allege: (1) the Supreme Court has denied
certiorari from circuit decisions recognizing same-sex marriage, effectively dissolving the stays imposed in those cases; and (2) Texas's laws restricting same-sex marriage continue to harm
Plaintiffs during the pendency of the stay.

II.

ANALYSIS

A. The Court has jurisdiction to lift or amend the stay.

As a preliminary threshold matter, Defendants contend the Court lacks jurisdiction to

vacate the stay because an appeal is pending before the Fifth Circuit. As a general rule, "the

filing of a notice of appeal is an event of jurisdictional significanceit confers jurisdiction on

the court of appeals and divests the district court of its control of those aspects of the case

involved in appeal." Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (emphasis

added). However, the district court maintains jurisdiction over other matters, including ordering

or modifying stays of injunctive relief. Farmhand, Inc. v. Anel Eng 'g Indus., Inc., 693 F.2d

1140, 1145 (5th Cir. 1982); see also Mazurek v. United States, No. CIV. 99-2003, 2001 WL

616668, at * 1 (E.D. La. Apr. 20, 2001) (noting a district court's jurisdiction includes the

authority to lift the stay of an order on appeal).

The stay of the injunction is not being appealed in this case. Rather, the only issue before

the Fifth Circuit is whether the Court erred in issuing a preliminary injunction and holding that Section 32 was unconstitutional. Vacating the stay of the injunction would not substantially alter
the judgment or order of the Court, and would not make the appeal moot. See Coastal Corp. v.
Tex. E. Corp., 869 F.2d 817, 819-21 (5th Cir. 1989). Therefore, the Court finds it has

jurisdiction to determine whether the injunction stay should be lifted.

2

Case 5:13-cv-00982-OLG Document 91 Filed 12/12/14 Page 3 of 6
B. The Supreme Court's actions since the imposition of the stay do not dictate the
stay should be lifted. Plaintiffs argue the Court should lift the stay because the Supreme Court's actions following this Court's decision no longer support the stay's continuance. Specifically, Plaintiffs
allege the Supreme Court denied certiorari of appeals upholding same-sex marriage. See Herbert
v. Kitchen, 135 5. Ct. 265 (2014) (Utah); Walker v. Wolf 135 5. Ct. 316 (2014) (Wisconsin); Rainey v. Bostic, 135 S. Ct. 286 (2014) (Virginia); Schaefer v. Bostic, 135 S. Ct. 308 (2014) (Virginia); Smith v. Bishop, 135 S. Ct. 271 (2014) (Oklahoma); and Bogan v. Bask/n, 135 5. Ct.
316 (2014) (Indiana).1 Furthermore, Plaintiffs contend that since the denial of certiorari, the Supreme Court has denied similar stays from other district courts. See, e.g, Wilson v. Condon, No. 14A533, 2014 WL 6474220 (U.S. Nov. 20, 2014); Parnell v. Hamby, No. 14A413, 2014
WL 5311581, at *1 (U.S. Oct. 17, 2014); Otter v. Latta, 135 5. Ct. 345 (2014). However, the Court is not persuaded that these actions support lifting the stay in this
case. As Plaintiffs concede, the Supreme Court's denial of certiorari is legally inconsequential.
Furthermore, the recent Supreme Court orders declining to stay injunctions in same-sex marriage cases apply to states with binding circuit precedent which the Supreme Court had declined to
review. See id. Plaintiffs cite no case, and the Court is unaware of any, in which the Supreme
Court has declined to stay a district court's injunction on a same-sex marriage case in a circuit that has not resolved the issue. Because there is a pending appeal in this case before the Fifth Circuit, the Court finds Plaintiffs' arguments fail.
C. The Eleventh Circuit decision is distinguishable from this case. Plaintiffs also note the Eleventh Circuit recently denied the State Defendants' motion to
1 The Court notes this basis for Plaintiffs' motion, the denial of certiorari in other same-sex marriage cases, occurred over two months ago, on October 6, 2014.
3

Case 5:13-cv-00982-OLG Document 91 Filed 12/12/14 Page 4 of 6
extend the district court's stay, and argue this decision supports their motion. See Grimsley 1'. Armstrong, No. 14-14066-AA (11th Cir. Dec. 3, 2014). In that case, the district court denied a similar motion to extend the stay, explaining the stay "would leave the Eleventh Circuit insufficient time to make a considered judgment on whether the stay should remain in place and thus would be inconsistent with the public interest in implementing just once the constitutional decision on same-sex marriage in Florida." Brenner v. Scott, No. 4:15-CV-107-RH/CAS, at *4 (N.D. Fla. Nov. 5, 2014).
However, our case has a significantly different posture. As previously mentioned, an
appeal of this Court's preliminary injunction order remains pending before the Fifth Circuit. In fact, the Fifth Circuit will hear the merits of the appeal in less than a month. See De Leon v. Perry, No. 14-50196, Doe. 00512795903, at 1 (5th Cir. Oct. 7, 2014) (granting a motion to expedite oral argument of the merits of the appeal). Importantly, the Fifth Circuit recently stayed a district court's preliminary injunction against Mississippi's prohibition on same-sex marriage. Campaign for S. Equal. v. Bryant, No. 14-60837, Doe. 00512858022, at 4 (5th Cir. Dec. 4. 2014). In contrast to the Eleventh Circuit's decision not to extend the stay, the Fifth Circuit
noted that "a detailed and in depth examination of this serious legal issue' is warranted before a
disruption of a long standing status quo." Id. at 3-4 (citing United States v. Baylor Univ. Med.
Ctr., 711 F.2d 38, 39 (5th Cir. 1983)). Therefore, the Fifth Circuit has expressly supported the
issuance of a stay in same-sex marriage cases pending consideration of their appeal. D. The legal and practical concerns for imposing the original stay remain today. In its order imposing a stay in Mississippi, the Fifth Circuit addressed some of the same
legal and practical concerns this Court considered when imposing the immediate stay in this
case. See id. As the Court noted, "considerations of intra-circuit uniformity and the avoidance
4

Case 5:13-cv-00982-OLG Document 91 Filed 12/12/14 Page 5 of 6
of confusion, should this court lift the stay that is currently in place . . ." militate in favor of denying Plaintiffs' motion. See Id. This Court shares the Fifth Circuit's concern that lifting the stay would cause an "inevitable disruption that would arise from a lack of continuity and stability in this important area of the law" and presents a potential harm not just to Texas but to Plaintiffs themselves and to the public interest at large. See id. For example, if this Court lifted the stay
and the Fifth Circuit ultimately reversed and vacated the preliminary injunction, what would be
the legal status of same-sex marriages entered into during the pendency of the appeal, or the parental rights of children born in these interim same-sex marriages? See, e.g., Evans v. Utah,
F. Supp. 2d , 2014 WL 2048343, at *1_4 (D. Utah May 19, 2014) (noting the confusion that resulted from Utah's marriage ban being enjoined and subsequently reinstated); see also Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48 (2009) (discussing the
validity of same-sex marriages that occurred after the California Supreme Court's decision allowing same-sex marriage and the passage of Proposition 8 precluding same-sex marriages). Furthermore, given the Fifth Circuit's recent stay of the Mississippi injunction, it is practically certain the Circuit Court would re-impose the stay in this case if lifted.
Although the Court recognizes that Plaintiffs are potentially harmed by the continuation
of the stay, "this harm is attenuated by the imminent consideration of their case by a full oral argument" before the Fifth Circuit. See id. The merits of the appeal in this case are scheduled to be heard on January 9, 2015, that is, 28 days from the date of this Order. Given that Plaintiffs' claims will soon be heard, "a temporary maintenance of the status quo balances the possibility of
this harm with the need to resolve Plaintiffs claims in a manner that is both expeditious and circumspect." See id.
5

Case 5:13-cv-00982-OLG Document 91 Filed 12/12/14 Page 6 of 6

III. CONCLUSION

Lifting the stay would not bring finality to this Fourteenth Amendment claim. To the

contrary, such action would only be temporary, with confusion and doubt to follow. The day for

finality and legal certainty in the long and difficult journey for equality is closer than ever before.

Ultimately, as mentioned in the February 12, 2014 hearing, this Court believes the issue will

ultimately be resolved by the United States Supreme Court and "a group of five people will

decide this case." Accordingly, Plaintiffs' motion is DENIED.

It is so ORDERED.

/ SIGNED this

"day of December, 2014.

United States District Judge Orlando L. Garcia

6

 
 Case 5:13-cv-00982-OLG Document 98 Filed 07/07/15 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

FftED

SA1' A1N1U1NIIJ J)IVISIIJIN

CLEOPATRA DE LEON, et al.

§

Plaintiffs,

§

JUL 0 7 2015 CLERK, U.S. DS1RIL CCFURT WESTER Dtj(CT OF TEXAS
E PU TV

§

v.

§

§

RICK PERRY, in his official capacity as

§

Governor of the State of Texas, et al.,

§

Defendants.

§

Cause No. SA-13-CA-00982-OLG

FINAL JUDGMENT

On July 1, 2015, the Fifth Circuit affirmed this Court's grant of a preliminary injunction and issued a mandate for this Court to enter judgment in favor of Plaintiffs in this case. See De Leon v. Abbott, No. 14-50196, 2015 WL 4032161, F.3d (5th Cir. 2015). In light of the United States Supreme Court's decision in Obergefell v. Hodges, No. 14-556, 2015 WL 2473451, U.S. (2015), and pursuant to the Fifth Circuit's mandate, the Court hereby
enters judgment in this case. It is hereby ORDERED, ADJUDGED, and DECREED that: 1) Any Texas law denying same-sex couples the right to marry, including Article I, §32 of the Texas Constitution, any related provisions in the Texas Family Code, and any other laws or regulations prohibiting a person from marrying another person of the same sex or recognizing same-sex marriage, violate the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the United States Constitution
and 42 U.S.C. § 1983; 2) Defendants are permanently enjoined from enforcing Texas's laws prohibiting same-
sex marriage; and 3) Any taxable costs in this case are assessed against the Defendants.
It isso ORDERED.

7 SIGNED this

day of July, 2015

L /1 (

United States District Judge Orlando L. Garcia

 
 Case 5:13-cv-00982-OLG Document 118 Filed 09/04/15 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CLEOPATRA DE LEON, NICOLE

§

DIMETMAN, VICTOR HOLMES, and §

MARK PHARISS

§

§

§

Plaintiffs,

§

§

v.

§

§

GREG ABBOTT, in his official capacity as §

Governor of the State of Texas,

§

KEN PAXTON, in his official capacity

§

as Texas Attorney General, GERARD

§

RICKHOFF, in his official capacity as

§

Bexar County Clerk, and KIRK COLE, §

in his official capacity as interim

§

Commissioner of the Texas Department §

of State Health Services

§

§

Defendants.

§

CIVIL ACTION NO. 5:13-cv-982-OLG

PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS

Case 5:13-cv-00982-OLG Document 118 Filed 09/04/15 Page 2 of 26

TABLE OF CONTENTS

I. PRELIMINARY STATEMENT

1

II. FACTUAL AND PROCEDURAL BACKGROUND

1

III. ARGUMENT

4

A. Plaintiffs Are Entitled To Fees As Prevailing Parties

4

B. Plaintiffs’ Attorneys’ Fees Request Is Reasonable And Should Be Increased

Under This Circuit’s Formula For Fee Awards In Section 1983 Actions

9

1. Plaintiffs’ Counsel’s Hours Were Reasonably Incurred

10

2. Plaintiffs’ Counsel’s Hourly Rates Are Reasonable

14

3. The Johnson Factors Support An Increase In The Award

16

C. The Court Should Award Plaintiffs Their Costs

18

IV. CONCLUSION

18

i

Case 5:13-cv-00982-OLG Document 118 Filed 09/04/15 Page 3 of 26
TABLE OF AUTHORITIES
Cases
Bogan v. Baskin, 135 S. Ct. 316 (2014).......................................................................................... 4
Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir. 1990) .............................................................................................. 10, 15
Associated Builders & Contractors of Louisiana, Inc. v. Orleans Parish School Bd., 919 F.2d 374 (5th Cir. 1990) .................................................................................................... 18
Baker v. Nelson, 409 U.S. 810 (1972).................................................................................................................... 3
Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014).................................................................................... 2
Blum v. Stenson, 465 U.S. 886 (1984).................................................................................................................. 15
Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014) ......................................................................................... 2
Bourke v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky. 2014)........................................................................................ 2
Buckhannon Board & Care Home, Inc. v. W. Va. Dept. of Health & Human Res., 532 U.S. 598 (2001).................................................................................................................... 6
Catholic Leadership Coalition of Tex. v. Reisman, No. A-12-CA-566-SS, 2015 U.S. Dist. LEXIS 10789 (W.D. Tex. Jan. 30, 2015) ................................................................................. 16
Davis v. Perry, 991 F. Supp. 2d 809 (W.D. Tex. 2014) .............................................................................. 14, 16
De Leon v. Abbott, No. 14-50196 (5th Cir. July 1, 2015).......................................................................................... 4
De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014) ...................................................................................... 3
Farrar v. Hobby, 506 U.S. 103 (1992).................................................................................................................... 5
FCC v. Beach Communications, Inc., 508 U.S. 307 (1993).................................................................................................................. 13
ii

Case 5:13-cv-00982-OLG Document 118 Filed 09/04/15 Page 4 of 26
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000).................................................................................................................... 7
Giles v. GE, 245 F.3d 474 (5th Cir. 2001) .................................................................................................... 17
Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) ........................................................................................ 2
Hanrahan v. Hampton, 446 U.S. 754 (1980).................................................................................................................... 5
Heidtman v. Cnty. of El Paso, 171 F.3d 1038 (5th Cir. 1999) .............................................................................................. 9, 15
Heller v. Doe, 509 U.S. 312 (1993).................................................................................................................. 13
Hensley v. Eckerhart, 461 U.S. 424 (1983)................................................................................................................ 4, 9
Herbert v. Kitchen, 135 S. Ct. 265 (2014).................................................................................................................. 4
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)................................................................................................................ 2
Hollowell v. Orleans Reg’l Hosp. LLC, 217 F.3d 379 (5th Cir. 2000) .................................................................................................... 14
Instone Travel Tech Marine & Offshore v. Int’l Shipping Partners, Inc., 334 F.3d 423 (5th Cir. 2003) ...................................................................................................... 5
Jackson v. Host Int’l, Inc., 426 F. App’x 215 (5th Cir. 2011) ............................................................................................... 5
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) ...................................................................................................... 9
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013)......................................................................................... 2
Lee v. Orr, No. 13–8719, 2014 U.S. Dist. LEXIS 21620 (N.D. Ill. Feb. 21, 2014) ...................................................................................... 3
Lefemine v. Wideman, 133 S. Ct. 9 (2012)...................................................................................................................... 5
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Miller v. Carson, 563 F.2d 741 (5th Cir. 1977) ...................................................................................................... 5
Morrow v. Dillard, 580 F.2d 1284 (5th Cir. 1978) .................................................................................................... 5
Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253 (5th Cir. 1990) ...................................................................................................... 5
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)........................................................................................................ 4, 6, 7
Obergefell v. Kasich, No. 1:13–cv–501, 2013 U.S. Dist. LEXIS 106226 (S.D. Ohio July 22, 2013)............................................................................ 2, 12
Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) ....................................................................................... 2
Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012)......................................................................................... 2
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) ........................................................................................ 2
Prater v. Commerce Equities Mgmt. Co., No. H-07-2349, 2008 U.S. Dist. LEXIS 98795 (S.D. Tex. Dec. 8, 2008).................................................................................... 16
Rainey v. Bostic, 135 S. Ct. 286 (2014).................................................................................................................. 4
Rhodes v. Stewart, 488 U.S. 1 (1988)........................................................................................................................ 5
Saizan v. Delta Concrete Prods. Co., 448 F.3d 795 (5th Cir. 2006) .............................................................................................. 16, 17
Schaefer v. Bostic, 135 S. Ct. 308 (2014).................................................................................................................. 4
Smith v. Bishop, 135 S. Ct. 271 (2014).................................................................................................................. 4
Texas State Teachers Assoc.v. Garland Indep. Sch. Dist., 489 U.S. 782 (1989)................................................................................................................ 4, 5
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United States ex rel. Cook-Reska v. Cmty. Health Sys., Civ. No. H-09-1565, 2015 U.S. Dist. LEXIS 57933 (S.D. Tex. May. 4, 2015)................................................................................... 16
United States v. Windsor, 133 S. Ct. 2675 (2013)................................................................................................................ 2
Univ. Amusement Co. v. Vance, 587 F.2d 159 (5th Cir. 1978) ...................................................................................................... 4
Walker v. U.S. Dep’t of Housing & Urban Dev., 99 F.3d 761 (5th Cir. 1996) ...................................................................................................... 10
Walker v. Wolf, 135 S. Ct. 316 (2014).................................................................................................................. 4
Waters v. Ricketts, No. 15-1452, 2015 U.S. App. LEXIS 14019 (8th Cir. Aug. 11, 2015) .................................................................................. 6, 7
Statutes 42 U.S.C. § 1988......................................................................................................................... 1, 4
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I. Preliminary Statement Pursuant to 42 U.S.C. § 1988 (“section 1988”), Plaintiffs Cleopatra De Leon, Nicole
Dimetman, Victor Holmes, and Mark Phariss (collectively “Plaintiffs”) move this Court for an award of attorneys’ fees and costs. Plaintiffs brought this action to obtain a declaration that Texas’ laws prohibiting and voiding same-sex marriages were unconstitutional and to obtain an injunction enjoining Defendants from enforcing such laws. As this Court knows, Plaintiffs obtained a preliminary judgment, which the Fifth Circuit affirmed, and a final judgment barring Defendants from continuing to enforce Texas’ same-sex marriage laws. Accordingly, Plaintiffs are entitled to an award of attorneys’ fees and costs. As reflected in the Declaration of Daniel McNeel Lane, Jr. (“Lane Decl.”), Plaintiffs’ request seeks attorneys’ fees for time reasonably spent on this case at reasonable hourly rates, which are far below the rates Plaintiffs’ counsel typically charge clients. The costs Plaintiffs seek are types typically charged to clients and, therefore, recoverable under section 1988.
Accordingly, the Motion should be granted and Plaintiffs should be awarded $720,794.00 in attorneys’ fees and $20,202.90 in costs. II. Factual And Procedural Background
On October 28, 2013, Plaintiffs filed this action challenging provisions of the Texas Constitution and Family Code that prohibited same-sex couples from marrying and denied recognition to same-sex marriages lawfully performed in other states. (Plaintiffs refer to these laws collectively as “Section 32.”)1 Plaintiffs are two same-sex couples, one which sought to be married in Texas and the other which had been married in Massachusetts, and they challenged 1 The Texas laws that prohibit same-sex couples from marrying and declaring void lawful outof-state marriages between same-sex couples included: (1) Family Code § 2.001, originally enacted in 1973 as Family Code § 1.01; (2) Family Code § 6.204, enacted in 2003; and (3) Article I, § 32 of the Texas Constitution, passed as H.J.R. 6 by the Legislature and approved by voters in November 2005.
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Section 32 as a violation of their Fourteenth Amendment rights to due process and equal protection. Plaintiffs were the first Texans represented by counsel to challenge Section 32 after the Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013).2 When this case was filed, only one federal district court had found a state law prohibiting same-sex marriages violated the Fourteenth Amendment. In Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), a district court had found California’s ban on same-sex marriages unconstitutional, but the appeals in that case were decided on other grounds.3 See e.g., Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (finding that petitioners lacked standing under Article III).
Plaintiffs filed a Motion for a Preliminary Injunction on November 22, 2015. ECF No. 24. The brief in support of the motion was 49 pages with over 800 pages of supporting evidence, including detailed expert declarations, extensive legislative history surrounding the challenged laws, and substantial historical and social science scholarship. ECF Nos. 24-2-32, 25-1. While that motion was pending, district courts in other states struck down same-sex marriage laws. See Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1195 (D. Utah 2013); Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1277 (N.D. Okla. 2014); see also Bostic v. Rainey, 970 F. Supp. 2d 456, 470 (E.D. Va. 2014); Bourke v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky. 2014), Lee v. Orr, No.
2 McNosky v. Perry, No. 1:13-cv-00631, (W. D. Tex.), was filed on July 29, 2013 by pro se plaintiffs. 3 Windsor, Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012), and Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012), involved challenges to the federal Defense of Marriage Act. In Obergefell v. Kasich, No. 1:13–cv–501, 2013 U.S. Dist. LEXIS 106226 (S.D. Ohio July 22, 2013), a district court in Ohio issued an injunction to require Ohio to recognize the out-of-state marriage of a terminally ill man so that he would be listed as married to his same-sex spouse on his death certificate. A subsequent order, issued in December 2013, granted declaratory relief and a permanent injunction. Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013).
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13–8719, 2014 U.S. Dist. LEXIS 21620 (N.D. Ill. Feb. 21, 2014).4 On February 12, 2014, this Court held a hearing on the preliminary injunction motion. ECF No. 59.
The Court granted the motion for preliminary injunction on February 26, 2014. It agreed with Plaintiffs that they established a likelihood of success on the merits because Section 32 denied them equal protection and could not survive even the most deferential level of scrutiny, rational basis. De Leon v. Perry, 975 F. Supp. 2d 632, 649-56 (W.D. Tex. 2014). This Court also held that Section 32 violated due process, because it denied Plaintiffs their fundamental right to marry without satisfying a strict scrutiny analysis. Id. at 656-60. The refusal to recognize Plaintiffs De Leon’s and Dimetman’s marriage, likewise, deprived them of equal protection without rational basis. Id. at 660-63. Further, the Court found that the remaining standards for injunctive relief had been met and, thus, a preliminary injunction was warranted.5 Id. at 663-665. The Court, however, stayed the preliminary injunction. Id. at 666.
In the trial court, Plaintiffs also were forced to oppose Defendant Rickoff’s Motion to Dismiss and the State Defendants’ Motion to Transfer Venue, a motion to intervene by a thirdparty, and Defendants’ efforts to consolidate this action with actions filed in the Austin Division of the Western District of Texas, which were denied by Judge Sparks. Lane Decl. ¶ 11.
After this Court issued the injunction, Defendants filed an immediate appeal. The appeal was fully briefed and argued on January 9, 2015. Twenty-six amicus briefs were filed in support of Texas; twenty-eight amicus briefs were filed in support of Plaintiffs. Lane Decl. ¶ 10. While the matter was under submission with the Fifth Circuit, the Supreme Court granted certiorari to
4 Bostic, Bourke, and Lee were decided after the February 12, 2014 hearing on the Motion for Preliminary Injunction. 5 The Court also rejected some procedural arguments, holding that Plaintiffs had standing to challenge Section 32 and that the Supreme Court’s 1972 summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), was no longer binding precedent. De Leon, 975 F. Supp. 2d at 645-49.
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four cases from the Sixth Circuit that raised challenges to state laws similar to Section 32.6 On June 26, 2015, the Supreme Court held that such laws are unconstitutional. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). On the same day, the Court lifted the stay on its preliminary injunction. ECF No. 96.
Following Obergefell, the Fifth Circuit asked the parties in the instant case to identify the most appropriate procedure for resolving the appeal. Lane Decl. ¶ 13, Ex. 1. Plaintiffs urged the court to affirm the injunction and direct entry of judgment in Plaintiffs’ favor. Id. ¶ 14, Ex. 2. Defendants agreed, advising the Court that it “should affirm the district court’s preliminary injunction in light of Obergefell” and should “resolve the merits of this case and instruct the district court to enter a final judgment.” Id. ¶ 15, Ex. 3. The Fifth Circuit adopted those recommendations in an order dated July 1, 2015 (De Leon v. Abbott, No. 14-50196 (5th Cir. July 1, 2015)). Id. ¶ 16, Ex. 4. This Court entered judgment on July 7, 2015. ECF No. 98. III. Argument
A. Plaintiffs Are Entitled To Fees As Prevailing Parties Under 42 U.S.C. § 1988, a “prevailing party” in an action brought under 42 U.S.C. § 1983 may be awarded reasonable attorney's fees and costs. 42 U.S.C. § 1988; Univ. Amusement Co. v. Vance, 587 F.2d 159, 172 (5th Cir. 1978). Civil rights plaintiffs are prevailing parties “if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.” Texas State Teachers Assoc.v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); accord Hanrahan v. 6 On October 6, 2014, after Plaintiffs submitted their appellee brief but before Defendants submitted their reply brief to the Fifth Circuit, the Supreme Court denied certiorari in a host of cases out of the Fourth, Seventh, and Tenth Circuits regarding the validity of same-sex marriage bans. See Herbert v. Kitchen, 135 S. Ct. 265 (2014) (Utah); Walker v. Wolf, 135 S. Ct. 316 (2014) (Wisconsin); Rainey v. Bostic, 135 S. Ct. 286 (2014) (Virginia); Schaefer v. Bostic, 135 S. Ct. 308 (2014) (Virginia); Smith v. Bishop, 135 S. Ct. 271 (2014) (Oklahoma); Bogan v. Baskin, 135 S. Ct. 316 (2014) (Indiana).
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Hampton, 446 U.S. 754, 756-58 (1980). In other words, “the plaintiff must be able to point to a
resolution of the dispute which changes the legal relationship between itself and the defendant.”
Texas State Teachers Assoc., 489 U.S. at 792; see also Lefemine v. Wideman, 133 S. Ct. 9, 11
(2012) (plaintiff prevails “when actual relief on the merits of [the plaintiff's] claim materially
alters the legal relationship between the parties by modifying the defendant’s behavior in a way
that directly benefits the plaintiff”) (per curiam) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12
(1992)). The Supreme Court has “repeatedly held that an injunction or declaratory judgment,
like a damages award, will usually satisfy that test.” Lefemine, 133 S. Ct. at 11 (citing Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam)).7
There can be no dispute that Plaintiffs are “prevailing parties” under these standards.
They successfully obtained an injunction against enforcement of Section 32, defended this
Court’s order on appeal, and obtained a judgment in their favor. Same-sex marriages in Texas is
now lawful and Plaintiffs and other same-sex couples are no longer denied their fundamental
right to marry and have their marriages recognized.
7 A prevailing party in a section 1983 action also is entitled to recover fees for work in connection with an appeal. Morrow v. Dillard, 580 F.2d 1284, 1300 (5th Cir. 1978) (civil rights plaintiff “is entitled to fees for appeal as well as those incurred during proceedings at the trial level.”); Miller v. Carson, 563 F.2d 741, 756 (5th Cir. 1977) (section 1988 fees should “include[]the services performed for this appeal”); Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, 257 (5th Cir. 1990) (“A long and consistent line of Fifth Circuit precedent allows awards of attorneys’ fees for both trial and appellate work.”). The award of appellate fees is a matter for the district court. Instone Travel Tech Marine & Offshore v. Int’l Shipping Partners, Inc., 334 F.3d 423, 433 (5th Cir. 2003) (“Now that we have ruled in favor of Instone, the matter is ripe for adjudication. We remand in order to allow the district court to make the initial determination and award of appellate attorney’s fees.”); Norris, 913 F.2d at 257 (remanding to the district court “to determine the amount of attorneys’ fees to be granted to Norris for appellate work”); Jackson v. Host Int’l, Inc., 426 F. App’x 215, 228 (5th Cir. 2011) (“The issue of appellate attorney’s fees is a matter for the district court on remand following the resolution of the underlying appeal.”).
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Defendants have suggested that they will argue that Plaintiffs are not prevailing parties because the law changed as a result of the Supreme Court’s ruling in Obergefell, a case that had not even been granted certiorari prior to the oral argument in the Fifth Circuit. No law or fact supports that contention. Section 32 only was declared unconstitutional in this case, and Section 32’s continued enforcement was enjoined only in this case. The Court first declared it unconstitutional on February 26, 2014, but it stayed its decision at that time. ECF No. 73. It subsequently lifted its stay on June 26, 2015—which required Defendants’ immediate compliance—and entered final judgment on July 7, 2015. ECF Nos. 96, 98. By any standard, Plaintiffs prevailed.
Defendants’ argument appears to be a misapprehension of Buckhannon Board & Care Home, Inc. v. W. Va. Dept. of Health & Human Res., 532 U.S. 598 (2001), which held that the plaintiffs were not entitled to attorneys’ fees when the defendants’ voluntary action mooted the case. In Buckhannon, the plaintiffs challenged a state law requirement for assisted living facilities, contending it violated the Americans with Disabilities Act. While the case was pending, the West Virginia Legislature eliminated the requirement. In holding that the plaintiffs were not entitled to attorneys’ fees as a prevailing party, the Supreme Court held that the plaintiffs could not recover because there was “no judicially sanctioned change in the legal relationship of the parties.” Id. at 605. “A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Id. (original emphasis).
The Eighth Circuit considered and rejected the argument that Obergefell mooted a samesex marriage challenge in another circuit. Waters v. Ricketts, No. 15-1452, 2015 U.S. App. LEXIS 14019, *7-9 (8th Cir. Aug. 11, 2015) (per curiam). The Waters court explained that, in
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Obergefell, “the Supreme Court specifically stated that ‘the State laws challenged by Petitioners in these cases are now held invalid’” and did not invalidate Nebraska’s law, the law being challenged in Waters. Id. at *7 (emphasis in original) (quoting Obergefell, 135 S. Ct. at 2605). It further held that the state’s “assurances of compliance with Obergefell do not moot the case” because the state had not established that the challenged conduct would not recur and injunctive relief might still be required. Id. at *8 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (“[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”).)
Defendants’ conduct refutes any argument that they voluntarily ceased their unconstitutional conduct. Indeed, Defendants Abbott, Paxton, and Cole’s (the “State Defendants”) actions have only shown the necessity of this Court’s injunction. As this Court is well-aware, weeks after this Court issued its injunction, the State Defendants refused to issue an amended death certificate recognizing a legal same-sex marriage. ECF No. 104. The certificate was issued only after this Court ordered the State Defendants to comply with the judgment and permanent injunction. ECF No. 105. At the teleconference of counsel, the Court also identified numerous examples of Texas’ failure to issue birth certificates and even reported that the court had been contacted by people reporting that some Texas counties were still not issuing same-sex marriage licenses. Lane Decl. ¶ 17, Ex. 5 at pp. 6 – 7. In response to this Court’s inquiries, counsel for the Department of State Health Services represented that it was preparing to issue policy guidelines that “will fully be in compliance with Your Honor's final judgment that was issued on July 7th.” Id. at p. 15. The Court then directed Defendants to file an advisory “notifying the Court they have created, issued, and implemented policy guidelines recognizing
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same-sex marriage in death and birth certificates” and “assuring the Court that the Department of State Health Services has granted all pending applications for death and birth certificates involving same-sex couples, assuming the applications are complete and qualify for approval.” ECF No. 117 at 2.
Defendant Paxton’s conduct further highlights the need for this Court’s injunction. After the Court lifted the stay on its preliminary injunction, Defendant Paxton advised county clerks that they could refuse to perform same-sex marriages on religious grounds and even suggested that attorneys would provide free legal defenses to clerks who were sued. ECF No. 109-2, Ex. B. Citing the Attorney General’s statement, the Hood County clerk refused to issue same-sex marriages in Hood County until a lawsuit was filed on July 6, 2015. See Complaint, Cato v. Lang, No. 4:15-cv-491 (N.D. Tex. filed July 6, 2015). Similarly, Defendant Paxton’s office continues to litigate In re Estate of Stella Marie Powell, No. C-1-PB-14-001695 (Probate Court No. 1, Travis County), a probate proceeding concerning a purported common law same-sex marriage. See Lane Decl. ¶ 18, Ex. 6 (Petition for Writ of Mandamus, In re Estate of Stella Marie Powell (Tex.) filed Feb. 17, 2015). In the underlying lawsuit and while this case was pending, the probate court declared Section 32 unconstitutional. The Attorney General intervened, stating that the State’s justiciable interest was the challenge to Section 32. Id. at 9. Despite the fact that Section 32 is unconstitutional and no longer defensible, the Attorney General continues to seek a determination that the common law same-sex marriage at issue in that case is not valid. Indeed, Defendant Paxton filed a motion for summary judgment in that case on August 25. See Lane Decl. ¶ 19, Ex. 7 (Traditional and No-Evidence Motion for Summary Judgment of the State of Texas, In re Estate of Stella Marie Powell (Probate Court No. 1, Travis County filed Aug. 25, 2015)).
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All told, Defendants’ conduct belies any argument that this Court’s injunction and declaration were not necessary. Indeed, Defendants agreed with Plaintiffs that the Fifth Circuit should affirm the injunction and judgment should be entered in Plaintiffs’ favor; Defendants never argued that Obergefell rendered Plaintiffs’ claims moot. The end result of this case—a judgment and permanent injunction against Defendants’ enforcement of Section 32—is a “judicially sanctioned change,” not a voluntary cessation of conduct. Accordingly, this Court should find Plaintiffs are prevailing parties and entitled to their attorneys’ fees and expenses.
B. Plaintiffs’ Attorneys’ Fees Request Is Reasonable And Should Be Increased Under This Circuit’s Formula For Fee Awards In Section 1983 Actions
The Fifth Circuit uses a two-step process to calculate attorney’s fees. Heidtman v. Cnty. of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999). First, a court calculates a “lodestar” figure “by multiplying the number of hours reasonably expended by an appropriate hourly rate in the community for such work.” Id. Calculating the lodestar does not end the inquiry. Other considerations may persuade the district court to increase or decrease a fee award. Hensley, 461 U.S. at 434. This court may increase or decrease the lodestar figure based on the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Heidtman, 171 F.3d at 1043. Those factors are: “(1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or circumstances; (8) the amount involved and results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) the award in similar cases.” Id. at 1043 n.5 (citing Johnson, 488 F.2d at 71719).
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1. Plaintiffs’ Counsel’s Hours Were Reasonably Incurred

As the first step in the process, a court in this circuit determines the reasonable number of

hours that the attorneys spent on the case by reviewing the attorneys’ time records. Alberti v.

Klevenhagen, 896 F.2d 927, 930 (5th Cir. 1990), vacated in part on other grounds, 903 F.2d 352

(5th Cir. 1990). Analyzing counsel’s time, the court considers whether the attorneys

demonstrated proper billing judgment by “writing off unproductive, excessive, or redundant

hours.” Walker v. U.S. Dep’t of Housing & Urban Dev., 99 F.3d 761, 769 (5th Cir. 1996).

Attached to the Declaration of Daniel McNeel Lane are tables consisting of time entries

maintained by Plaintiffs’ counsel. In total, from the initial preparation of this case through the

appeal and entry of judgment, Plaintiffs seek an award of fees for 1706.80 hours of attorney and

paralegal time expended on this case.

This time broadly breaks down into ten general categories, reflecting different types of

work performed in connection with the District Court proceedings and Fifth Circuit appeal.

Lane Decl. ¶ 23. These categories and corresponding hours are:

CATEGORY OR PROJECT

TOTAL TIME

Pre-Filing Investigation, Preliminary Research, Preparation Of Complaint

179.5

Identify And Work With Experts

35.3

Prepare Preliminary Injunction Motion and Supporting Evidence

249.4

Preliminary Injunction Reply And Hearing/Respond To Texas Values' Amicus Efforts

200.6

Ancillary District Court Proceedingss - Motion to Dismiss; Opposing Consolidation/Transfer, Rule 26(f)

104.6

Appellate Briefing/Work with Amici

405.3

Appellate Motions

84.5

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Oral Argument Preparation And Attendance
Post-Oral Argument: Follow Supreme Court Developments/Further StayRelated Issues/Post-Obergefell Work Motion for Attorneys’ Fees
TOTAL

312.1 79.7
55.8 1706.8

Lane Decl. ¶ 23, Exs. 8-18. Plaintiffs exercised substantial billing judgment in their requested fees. For instance,
Plaintiffs declined to include the work of more than 15 attorneys and paralegals who provided short-term assistance during the case. In addition, Plaintiffs carefully scrutinized these bills and removed numerous entries that contained: (1) time incurred dealing with the significant media interest in this case; (2) time spent in teleconferences between attorneys and clients; (3) time spent on an amicus brief in the Fifth Circuit that was never filed; and (4) time incurred to represent the intervenor seeking enforcement of this Court’s injunction. Id. ¶ 25. In total, more than 700 hours of time billed on this matter – more than 35% of the total hours—have been removed from the request. Id. ¶ 26.
As part of this exercise of billing judgment, Defendants removed substantial time that undoubtedly is recoverable because that time was in a billing entry with a category of time that it has chosen to remove. Numerous time entries were deleted entirely if such time was included, even if the amount of time expended on task outside this request was included a small percentage of the time expended by that attorney that day. Lane Decl. ¶¶ 33-35 (providing examples of days when several hours of time were removed because one part of the entry fell outside the scope of this Motion). Plaintiffs also reduced the time incurred by the attorney who argued the Fifth Circuit appeal on several days leading up to and including the oral argument, because he also responded to media inquiries on those days. Id. ¶ 35. The time on each of the days was reduced
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by 25%, even though the amount of time spent on media-related tasks was less than 25% of the time incurred on those dates. Id. The time spent on this case was reasonably and necessarily incurred. This was a case of major significance, which greatly expanded the rights of same-sex couples throughout Texas. The District Court and appellate briefing encompassed numerous issues: whether Section 32 violated equal protection under different degrees of scrutiny; the type of scrutiny that should be applied to equal protection claims raised by gays and lesbians; whether same-sex couples have a fundamental right to marry the person of their choosing; Texas’ potential justifications for Section 32 and why they failed to survive rational basis review; the applicability of Baker v. Nelson; and standing, among others. Further, in its successful defense of the appeal, Plaintiffs had to marshal amicus support for its position and necessarily incurred time coordinating the numerous amicus briefs filed in their support.
Defendants may argue that the likelihood that the Supreme Court would decide the constitutionality of laws like Section 32 somehow rendered Plaintiffs’ counsel’s work unnecessary, but Defendants would be wrong. When this case was filed, the injunction issued, and the appeal filed, nobody knew if the Supreme Court would consider the constitutionality of state same-sex marriage prohibitions. Indeed, at the time the case was filed, only a single federal district court in California had found a state law prohibiting same-sex marriages unconstitutional and no federal district court, let alone circuit court of appeal, had rendered such an opinion postWindsor.8 Moreover, as discussed above, the State Defendants’ conduct demonstrated the necessity of this Court’s orders to protect same-sex couples’ constitutional right to marry.
8 Only Obergefell v. Kasich, No. 1:13–cv–501, 2013 U.S. Dist. LEXIS 106226 (S.D. Ohio July 22, 2013), had granted a temporary restraining order, but that decision only addressed a state’s refusal to recognize an out-of-state marriage.
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In the meet-and-confer, Defendants expressed the view that the time on the injunction was excessive and that Plaintiffs should not have employed experts in connection with their challenge. While substantial time was incurred preparing the pleadings, that time should be found reasonable. This was a critically important case that presented new issues, multiple grounds for finding Section 32 unconstitutional, legislative history surrounding multiple statutes and a constitutional amendment, and different potential standards for evaluating constitutionality, e.g., rational basis versus heightened scrutiny as the test for the equal protection challenge.
As for the experts, their declarations were critical for establishing the possible heightened scrutiny standard and for disputing any argument that Section 32 served any state interest. Indeed, if the Court recalls, Defendants argued that Plaintiffs had to “negative every conceivable basis which might support [the law] [citation]” and “Texas ‘has no obligation to produce evidence to sustain the rationality of a statutory classification’ [citations.]” Opp. to Preliminary Injunction (ECF No. 40 at 17 (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993), and Heller v. Doe, 509 U.S. 312, 320 (1993))). Defendants cannot complain now that Defendants expended significant resources to refute the possible justifications Defendants might offer for Section 32.
Similarly, Defendants cannot complain about the time incurred to defend the injunction on appeal. Defendants chose to appeal this Court’s ruling, marshalled dozens of amicus curiae to support their position, and opposed Plaintiff’s requests to lift the stay of the injunction, including for the limited purpose of directing Defendant Cole to issue a birth certificate that recognized Plaintiff De Leon as the mother of her child with Plaintiff Dimetman. All told, Defendants fought tooth and nail to maintain Section 32; that Plaintiffs extensively researched and responded to Defendants’ Appellants’ Brief and the amicus curiae briefs was eminently reasonable.
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Defendants also have indicated that they will object to the request because the time

entries did not have separate entries for every task, but combine time entries on a single day in

blocks. However, “‘[a] reduction for block billing is not automatic.’” Davis v. Perry, 991 F.

Supp. 2d 809, 836 (W.D. Tex. 2014) (declining to reduce for block billing because “the entries

are sufficiently specific and allow the Court to determine whether the total represents a

reasonable amount of time”), reversed on other grounds sub nom Davis v. Abbott, 781 F.3d 207

(2015); see also Hollowell v. Orleans Reg’l Hosp. LLC, 217 F.3d 379, 392 n.18 (5th Cir. 2000)

(refusing to reduce for block-billing). Here, the Court has ample descriptions from which it can

determine if the time expended was reasonable. Moreover, as demonstrated above, Defendants

have already removed entire block-billed entries, even if only a small part of that time was

subject to dispute.

Accordingly this Court should find the time expended by Plaintiffs’ counsel was

reasonable.

2. Plaintiffs’ Counsel’s Hourly Rates Are Reasonable Plaintiffs request that this Court set hourly rates for the following attorneys and

paralegals as follows:

Name of Attorney or Paralalegal

Position

Years of Experience

Barry Chasnoff

Partner/General Counsel of Akin Gump

40 years

Daniel McNeel Partner Lane

25 years

Pratik Shah

Partner/Co-Chair Akin Gump Supreme Court and Appellate Practice

14 years

Customary Requested Total Hourly Rate Hourly Rate Hours

$980.00

$500.00

73.7

$825.00 $875.00

$500.00 $500.00

259.7 31.6

14

Case 5:13-cv-00982-OLG Document 118 Filed 09/04/15 Page 21 of 26

Michael Cooley Senior Counsel

Jessica Weisel Senior Counsel

Andrew Newman

Counsel

Matthew Pepping

Counsel

Frank StengerCastro

Former Akin Gump Deputy General Counsel

Risa Slavin

Paralegal

Lisa Wehland Paralegal

TOTAL

16 years 20 years 8 years 7 years 42 years
26 years 35 years

$750.00 $675.00 $675.00
$660.00
$600.00

$460.00 $430.00 $400.00
$400.00
$365.00

145.4 474.4
84.4
573.6
20.5

$275.00 $225.00

$165.00 $135.00

11.7 31.8 1706.8

A party seeking attorneys’ fees bears the burden of justifying the reasonableness of its requested hourly rate. Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). A reasonable hourly rate is that rate in the community for such legal services rendered by attorneys of comparable skill, experience, and reputation. Alberti, 896 F.2d at 936; Heidtman, 171 F.3d at 1043. A reasonable hourly rate should be in accord with rates “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum, 465 U.S. at 895 n.11.
The hourly rates requested are reasonable under this standard. As set forth in the Declarations of Saul Perloff and Carlos Soltero, attorneys who practice regularly in the Western District of Texas, the requested hourly rates for the above attorneys fall within the range of hourly rates charged by attorneys of similar skill, experience and reputation in connection with civil rights cases. Declaration of Saul Perloff, ¶¶ 7-10; Declaration of Carlos R. Soltero, ¶¶ 1316.

15

Case 5:13-cv-00982-OLG Document 118 Filed 09/04/15 Page 22 of 26
Moreover, the hourly rates requested represent a substantial discount from the rates Plaintiffs’ counsel typically charge their clients. Lane Decl. ¶ 38. Most of the requested rates have been discounted by approximately 40% and one attorney’s requested rate are approximately half his customary rate. Id.
Case law supports a finding that the requested hourly fall within the range of reasonable rates. Only a few months ago, in false claims act litigation, a court in the Southern District of Texas awarded hourly rates of $550 for attorneys with 32 and 29 years of experience, $300 for other attorneys with five or more years of experience, and $125 for paralegals. United States ex rel. Cook-Reska v. Cmty. Health Sys., Civ. No. H-09-1565, 2015 U.S. Dist. LEXIS 57933 (S.D. Tex. May. 4, 2015). Cases in this district have used hourly rates generally consistent with the rates requested by Plaintiffs. Davis v. Perry, 991 F. Supp. 2d at 848-49 (in voting rights act case, awarding rates of $418 for experienced attorneys and Washington, D.C. partners of national firm, $324 for senior associate, and $252 for fourth-year associates); e.g., Catholic Leadership Coalition of Tex. v. Reisman, No. A-12-CA-566-SS, 2015 U.S. Dist. LEXIS 10789, *13 (W.D. Tex. Jan. 30, 2015) (using rates of $300 and $285 per hour to lead counsel that defendant did not dispute in awarding fees under Section 1988).
Accordingly, this Court should find the requested hourly rates reasonable. 3. The Johnson Factors Support An Increase In The Award
Applying the Johnson factors, this Court should increase the award. “Of the Johnson factors, the court should give special heed to the time and labor involved, the customary fee, the amount involved and the result obtained, and the experience, reputation and ability of counsel.” Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir. 2006). “The most important factor to consider is the results obtained.” Prater v. Commerce Equities Mgmt. Co., No. H-072349, 2008 U.S. Dist. LEXIS 98795, *8 (S.D. Tex. Dec. 8, 2008); see also Giles v. GE, 245 F.3d
16

Case 5:13-cv-00982-OLG Document 118 Filed 09/04/15 Page 23 of 26
474, 491 n.31 (5th Cir. 2001) (“The district court correctly focused on the weightier factors in the Johnson analysis, with emphasis on the most important factor, the result obtained.”).
Here, Plaintiffs’ achieved overwhelming success—a permanent injunction against enforcement of Section 32 in its entirety for not just Plaintiffs, but for all gay and lesbian Texans who seek to exercise their fundamental right to marry. Plaintiffs prevailed in both this Court and in the Fifth Circuit on an important civil rights case that was brought with no clear precedent supporting the outcome.
The remaining special factors also support an increase. As Plaintiffs’ counsel’s billing records reflect, significant time and labor was involved in this case. This was a high-profile matter, with tremendous stakes for not only Plaintiffs, but all current and future gay and lesbian citizens of Texas. As discussed above, the importance of the case, the complexity of the issues, and the lack of clear precedent required Plaintiffs’ counsel to expend substantial time to make sure that every issue was carefully researched and presented compellingly. Plaintiffs also are seeking substantially less than the customary hourly rates of their counsel, who are highly experienced litigators and appellate practitioners.
Plaintiffs recognize that the Fifth Circuit has cautioned against applying a Johnson factor that is already incorporated in the lodestar. Saizan, 448 F.3d at 800 (“The lodestar may not be adjusted due to a Johnson factor, however, if the creation of the lodestar amount already took that factor into account; to do so would be impermissible double counting.”). The Court may consider the time and labor expended, experience of counsel, and customary fee in setting the lodestar. However, if this Court were to reduce the hourly rates or the total hours in its lodestar calculation, those factors would then weigh in favor of an increased award.
17

Case 5:13-cv-00982-OLG Document 118 Filed 09/04/15 Page 24 of 26
C. The Court Should Award Plaintiffs Their Costs As the prevailing party in this case, Plaintiffs are not limited to the costs set forth in 28 U.S.C. § 1920. “All reasonable out-of-pocket expenses, including charges for photocopying, paralegal assistance, travel, and telephone, are plainly recoverable in section 1988 fee awards because they are part of the costs normally charged to a fee-paying client.” Associated Builders & Contractors of Louisiana, Inc. v. Orleans Parish School Bd., 919 F.2d 374, 380 (5th Cir. 1990). Plaintiffs seek $20,202.90 in total costs. The bulk of costs requested were incurred for expert witnesses and travel by counsel to arguments in this Court and in the Fifth Circuit. Lane Decl., ¶¶ 52-61, Exs. 20-26. The remaining costs are primarily for filing fees, courier services, duplicating costs. Id. These costs customarily are charged to paying clients. Id. ¶ 56. Consequently, Plaintiffs are entitled to recover them under Section 1988. IV. Conclusion For the foregoing reasons, Plaintiffs respectfully request that this Court award $720,794.00 in attorneys’ fees and $20,202.90 in costs.
18

Case 5:13-cv-00982-OLG Document 118 Filed 09/04/15 Page 25 of 26

Dated: September 4, 2015

Respectfully submitted,
AKIN GUMP STRAUSS HAUER & FELD LLP
By: /s/ Daniel McNeel Lane, Jr. Barry A. Chasnoff (SBN 04153500) bchasnoff@akingump.com Daniel McNeel Lane, Jr. (SBN 00784441) nlane@akingump.com Matthew E. Pepping (SBN 24065894) mpepping@akingump.com 300 Convent Street, Suite 1600 San Antonio, Texas 78205 Phone: (210) 281-7000 Fax: (210) 224-2035
Jessica Weisel (Pro Hac Vice) jweisel@akingump.com 2029 Century Park East, Suite 2400 Los Angeles, California 90067 Phone: (310) 229-1000 Fax: (310) 229-1001
Michael P. Cooley (SBN 24034388) mcooley@akingump.com 1700 Pacific Ave., Suite 4100 Dallas, Texas 75201 Phone: (214) 969-2800 Fax: (214) 969-4343
Frank Stenger-Castro (SBN 19143500) 208 Sir Arthur Ct. San Antonio, Texas 78213 fstengerc@yahoo.com
Attorneys for Plaintiffs

19

Case 5:13-cv-00982-OLG Document 118 Filed 09/04/15 Page 26 of 26 CERTIFICATE OF SERVICE
I certify that on September 4, 2015, I served Defendants a copy of the foregoing document via the Court’s ECF system.
By:__/s/ Daniel McNeel Lane, Jr.___________ Daniel McNeel Lane, Jr.
CERTIFICATE OF CONFERENCE I hereby certify that counsel has complied with the meet and confer requirement in Local Rule CV-7(i), and this motion is opposed. Counsel for Plaintiffs conferred with Counsel for Defendants via email beginning on July 20, 2015, and telephonically on July 30, 2015. Counsel for Defendants stated that they are opposed to this motion.
By: /s/ Daniel McNeel Lane, Jr. __________ Daniel McNeel Lane, Jr.
20

 
 Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 1 of 17
U.S. District Court [LIVE] Western District of Texas (San Antonio) CIVIL DOCKET FOR CASE #: 5:13−cv−00982−OLG

DeLeon et al v. Perry et al Assigned to: Chief Judge Orlando L. Garcia Case in other court: 5CCA, 14−50196
5CCA, 15−51241
5CCA, 15−51241 (AMEND NOA) Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 10/28/2013 Date Terminated: 07/07/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Cleopatra DeLeon

represented by Barry A. Chasnoff Akin Gump Strauss Hauer & Feld, LLP 300 Convent Street, Suite 1600 San Antonio, TX 78205 (210) 281−7001 Fax: 210/224−2035 Email: bchasnoff@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew F. Newman Akin Gump Strauss Hauer & Feld, LLP 1700 Pacific Ave − Ste 4100 Dallas, TX 75201−4618 (214) 969−2882 Fax: 214/969−4343 Email: anewman@akingump.com ATTORNEY TO BE NOTICED

Daniel McNeel Lane , Jr. Norton Rose Fulbright US LLP 300 Convent Street Suite 2100 San Antonio, TX 78205 210−270−7170 Fax: 210−270−7205 Email: neel.lane@nortonrosefulbright.com TERMINATED: 08/24/2016 ATTORNEY TO BE NOTICED

Frank Stenger−Castro Attorney at Law 208 Sir Arthur Court San Antonio, TX 78213 (210) 241−0234 Email: fstengerc@yahoo.com ATTORNEY TO BE NOTICED

Jessica M. Weisel Akin Gump Strauss Hauer & Feld LLP 1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067 (310) 229−1000 Fax: (310) 229−1001 Email: jweisel@akingump.com ATTORNEY TO BE NOTICED

Matthew E. Pepping Norton Rose Fulbright US LLP 300 Convent Street Suite 2100

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 2 of 17

San Antonio, TX 78205 210−270−7164 Fax: 210−270−7205 Email: matthew.pepping@nortonrosefulbright.com TERMINATED: 08/24/2016 ATTORNEY TO BE NOTICED

Michael P. Cooley Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Avenue, Suite 4100 Dallas, TX 75201−4675 214−969−2723 Fax: 214−969−4343 Email: mcooley@akingump.com ATTORNEY TO BE NOTICED

Plaintiff Nicole Dimetman

represented by Barry A. Chasnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew F. Newman (See above for address) ATTORNEY TO BE NOTICED

Daniel McNeel Lane , Jr. (See above for address) TERMINATED: 08/24/2016 ATTORNEY TO BE NOTICED

Frank Stenger−Castro (See above for address) ATTORNEY TO BE NOTICED

Jessica M. Weisel (See above for address) ATTORNEY TO BE NOTICED

Matthew E. Pepping (See above for address) TERMINATED: 08/24/2016 ATTORNEY TO BE NOTICED

Michael P. Cooley (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Victor Holmes

represented by Barry A. Chasnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew F. Newman (See above for address) ATTORNEY TO BE NOTICED

Daniel McNeel Lane , Jr. (See above for address) TERMINATED: 08/24/2016 ATTORNEY TO BE NOTICED

Frank Stenger−Castro

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 3 of 17

(See above for address) ATTORNEY TO BE NOTICED

Jessica M. Weisel (See above for address) ATTORNEY TO BE NOTICED

Matthew E. Pepping (See above for address) TERMINATED: 08/24/2016 ATTORNEY TO BE NOTICED

Michael P. Cooley (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mark Phariss

represented by Barry A. Chasnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew F. Newman (See above for address) ATTORNEY TO BE NOTICED

Daniel McNeel Lane , Jr. (See above for address) TERMINATED: 08/24/2016 ATTORNEY TO BE NOTICED

Frank Stenger−Castro (See above for address) ATTORNEY TO BE NOTICED

Jessica M. Weisel (See above for address) ATTORNEY TO BE NOTICED

Matthew E. Pepping (See above for address) TERMINATED: 08/24/2016 ATTORNEY TO BE NOTICED

Michael P. Cooley (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Rick Perry in his official capacity as Govenor of the State of Texas

represented by Scott A. Keller Office of the Attorney General 209 West 14th St. 7th Floor (MC 059) Austin, TX 78701 (512) 936−1700 Fax: (512) 474−2697 Email: scott.keller@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth Klusmann

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 4 of 17

Office of the Attorney General PO Box 12548 (MC−059) Austin, TX 78711 (512) 936−1914 Fax: 512/474−2697 Email: beth.klusmann@texasattorneygeneral.gov ATTORNEY TO BE NOTICED

Jonathan F. Mitchell 559 Nathan Abbott Way Stanford, CA 94305 (650) 723−2465 Email: jfmitche@stanford.edu TERMINATED: 01/15/2015 ATTORNEY TO BE NOTICED

Marc Edward Rietvelt Office of the Attorney General Capitol Station PO Box 12548 Austin, TX 78711 512−463−2120 Email: marc.rietvelt@oag.texas.gov ATTORNEY TO BE NOTICED

Michael P. Murphy Texas Attorney General Office of the Solicitor General 209 W. 14th Street, 7th Floor P. O. Box 12548, Austin, TX 78711−2548 Austin, TX 78701 512−936−2995 Fax: 512−474−2697 Email: michaelp.murphy@oag.texas.gov ATTORNEY TO BE NOTICED

Summer R. Lee Office of the Attorney General PO Box 12548 Austin, TX 78711 512−475−4031 Fax: 512−936−0545 Email: summer.lee@oag.texas.gov ATTORNEY TO BE NOTICED

William T. Deane Office of the Attorney General General Litigation Division−019 P.O. Box 12548 Austin, TX 78711−2548 (512) 463−2120 Fax: 512/320−0667 Email: Bill.Deane@oag.texas.gov ATTORNEY TO BE NOTICED

Defendant
Greg Abbott in his official capacity as Texas Attorney General

represented by Scott A. Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Beth Klusmann (See above for address) ATTORNEY TO BE NOTICED

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 5 of 17

Defendant Gerard Rickhoff in his official capacity as Bexar County Clerk
Defendant David Lakey in his official capacity as Commissioner of the Texas Department of State Health Services

Jonathan F. Mitchell (See above for address) TERMINATED: 01/15/2015 ATTORNEY TO BE NOTICED
Marc Edward Rietvelt (See above for address) ATTORNEY TO BE NOTICED
Michael P. Murphy (See above for address) ATTORNEY TO BE NOTICED
Summer R. Lee (See above for address) ATTORNEY TO BE NOTICED
William T. Deane (See above for address) ATTORNEY TO BE NOTICED
represented by Susan A. Bowen Bexar County District Attorney's Office Civil Section 101 W. Nueva, 7th Fl. San Antonio, TX 78205 (210) 335−2147 Fax: (210) 335−2773 Email: sbowen@bexar.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth Klusmann (See above for address) ATTORNEY TO BE NOTICED
Jonathan F. Mitchell (See above for address) TERMINATED: 01/15/2015 ATTORNEY TO BE NOTICED
Marc Edward Rietvelt (See above for address) ATTORNEY TO BE NOTICED
Michael P. Murphy (See above for address) ATTORNEY TO BE NOTICED
Summer R. Lee (See above for address) ATTORNEY TO BE NOTICED
William T. Deane (See above for address) ATTORNEY TO BE NOTICED

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 6 of 17

Intervenor Plaintiff John Allen Stone−Hoskins
Amicus Texas Values

represented by Andrew F. Newman (See above for address) ATTORNEY TO BE NOTICED
Daniel McNeel Lane , Jr. (See above for address) ATTORNEY TO BE NOTICED
Matthew E. Pepping (See above for address) ATTORNEY TO BE NOTICED
represented by Robert Paul Wilson Thomas J. Henry Injury Attorneys 4715 Fredericksburg Road Suite 507 San Antonio, TX 78229 (210)585−2173 Fax: (361)985−0601 Email: rwilson−svc@tjhlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/29/2011 10/28/2013
10/28/2013 10/28/2013 10/29/2013 10/29/2013 10/29/2013 10/29/2013

# Docket Text
31 ORDER GRANTING 30 Motion for Extension of Time to File Response/Reply. Signed by Judge Orlando L. Garcia. (rg) (Entered: 12/03/2013)
1 COMPLAINT For Declaratory and Injunctive Relief ( Filing fee $ 400 receipt number 0542−5970046). No Summons requested at this time, filed by Mark Phariss, Cleopatra DeLeon, Victor Holmes, Nicole Dimetman. (Attachments: # 1 Civil Cover Sheet)(Chasnoff, Barry) (Attachment 1 replaced on 5/12/2014) (rf). (Entered: 10/28/2013)
Case Assigned to Judge Orlando L. Garcia. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (rg) (Entered: 10/28/2013)
If ordered by the court, all referrals will be assigned to Magistrate Judge Mathy. (rg) (Entered: 10/28/2013)
2 REQUEST FOR ISSUANCE OF SUMMONS by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. Rick Perry, in his official capacity as Governor of the State of Texas (Chasnoff, Barry) (Main Document 2 replaced on 5/12/2014) (rf). (Entered: 10/29/2013)
3 REQUEST FOR ISSUANCE OF SUMMONS by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. David Lakey, in his official capacity as Commissioner of the Texas Department of State Health Services (Chasnoff, Barry) (Main Document 3 replaced on 5/12/2014) (rf). (Entered: 10/29/2013)
4 REQUEST FOR ISSUANCE OF SUMMONS by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. Gerard Rickhoff, in his official capacity as Bexar County Clerk (Chasnoff, Barry) (Main Document 4 replaced on 5/12/2014) (rf). (Entered: 10/29/2013)
5 REQUEST FOR ISSUANCE OF SUMMONS by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. Greg Abbott in his official capacity as Texas Attorney General (Chasnoff, Barry) (Main Document 5 replaced on 5/12/2014) (rf). (Entered: 10/29/2013)

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 7 of 17

10/29/2013
10/29/2013
10/29/2013
10/29/2013
10/29/2013 10/29/2013 10/29/2013 10/29/2013 11/01/2013 11/01/2013 11/01/2013 11/01/2013 11/05/2013 11/19/2013
11/20/2013
11/20/2013 11/21/2013
11/21/2013

6 REQUEST FOR ISSUANCE OF SUMMONS by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. Rick Perry in his official capacity as Governor of the State of Texas (Chasnoff, Barry) (Main Document 6 replaced on 5/12/2014) (rf). (Entered: 10/29/2013)
7 REQUEST FOR ISSUANCE OF SUMMONS by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. Greg Abbott in his official capacity as Texas Attorney General (Chasnoff, Barry) (Main Document 7 replaced on 5/12/2014) (rf). (Entered: 10/29/2013)
8 REQUEST FOR ISSUANCE OF SUMMONS by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. David Lakey in his official capacity as Commissioner of the Texas Department of State Health Services (Chasnoff, Barry) (Main Document 8 replaced on 5/12/2014) (rf). (Entered: 10/29/2013)
9 REQUEST FOR ISSUANCE OF SUMMONS by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. Gerard Rickhoff in his official capacity as Bexar County Clerk (Chasnoff, Barry) (Main Document 9 replaced on 5/12/2014) (rf). (Entered: 10/29/2013)
10 Summons Issued as to Rick Perry. (rg) (Entered: 10/29/2013)
11 Summons Issued as to Greg Abbott. (rg) (Entered: 10/29/2013)
12 Summons Issued as to David Lakey. (rg) (Entered: 10/29/2013)
13 Summons Issued as to Gerard Rickhoff. (rg) (Entered: 10/29/2013)
14 SUMMONS Returned Executed by Mark Phariss, Cleopatra DeLeon, Victor Holmes, Nicole Dimetman. Greg Abbott served on 10/30/2013, answer due 11/20/2013. (Chasnoff, Barry) (Entered: 11/01/2013)
15 SUMMONS Returned Executed by Mark Phariss, Cleopatra DeLeon, Victor Holmes, Nicole Dimetman. David Lakey served on 10/30/2013, answer due 11/20/2013. (Chasnoff, Barry) (Entered: 11/01/2013)
16 SUMMONS Returned Executed by Mark Phariss, Cleopatra DeLeon, Victor Holmes, Nicole Dimetman. Rick Perry served on 10/30/2013, answer due 11/20/2013. (Chasnoff, Barry) (Entered: 11/01/2013)
17 SUMMONS Returned Executed by Mark Phariss, Cleopatra DeLeon, Victor Holmes, Nicole Dimetman. Gerard Rickhoff served on 10/29/2013, answer due 11/19/2013. (Chasnoff, Barry) (Entered: 11/01/2013)
18 NOTICE of Federal Rule of Civil Procedure 5.1 Notice of a Constitutional Challenge by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss (Chasnoff, Barry) (Entered: 11/05/2013)
19 NOTICE of Plaintiffs' Response to Defendants' Opposed Motion to Consolidate Trial and Scheduling Deadlines [Dkt. No. 17, filed in Case No. A13−cv−0631] by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss (Lane, Daniel) (Entered: 11/19/2013)
20 MOTION to Dismiss Defendant Bexar County Clerk Rickhoff's Motion to Be Dismissed from Plaintiffs' Original Complaint for Declaratory and Injunctive Relief Pursuant to Rule 12(b)(6) by Gerard Rickhoff. (Attachments: # 1 Proposed Order)(Bowen, Susan) (Entered: 11/20/2013)
21 Defendants ' ANSWER to 1 Complaint, by Greg Abbott, David Lakey, Rick Perry.(Deane, William) (Entered: 11/20/2013)
22 MOTION to Appear Pro Hac Vice by Daniel McNeel Lane, Jr for Jessica M. Weisel ( Filing fee $ 25 receipt number 0542−6037258) by on behalf of Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Proposed Order)(Lane, Daniel) (Entered: 11/21/2013)
23 NOTICE of Attorney Appearance by Daniel McNeel Lane, Jr on behalf of Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss (Lane, Daniel) (Entered: 11/21/2013)

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 8 of 17

11/22/2013 11/22/2013
11/22/2013
11/26/2013 11/27/2013 11/27/2013 11/27/2013
11/29/2013 12/02/2013 12/09/2013 12/10/2013

Text Order GRANTING 22 Motion to Appear Pro Hac Vice of Jessica Weisel. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 11/22/2013)
24 Unopposed MOTION for Leave to Exceed Page Limitation on Plaintiffs' Motion for Preliminary Injunction Enjoining Defendants from Enforcing Texas' Same−Sex Marriage Ban by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Exhibit A−Opposed Motion for Preliminary Injunction, # 2 Appendix, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30)(Lane, Daniel) (Entered: 11/22/2013)
25 SUPPLEMENT to 24 Unopposed MOTION for Leave to Exceed Page Limitation on Plaintiffs' Motion for Preliminary Injunction Enjoining Defendants from Enforcing Texas' Same−Sex Marriage Ban Additional Attachments to Document #24 by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Exhibit 31, # 2 Exhibit 32, # 3 Exhibit 33, # 4 Exhibit 34, # 5 Exhibit 35, # 6 Exhibit 36, # 7 Exhibit 37, # 8 Exhibit 38, # 9 Exhibit 39, # 10 Exhibit 40, # 11 Exhibit 41, # 12 Exhibit 42, # 13 Exhibit 43, # 14 Exhibit 44, # 15 Exhibit 45, # 16 Exhibit 46, # 17 Exhibit 47, # 18 Exhibit 48, # 19 Exhibit 49, # 20 Exhibit 50, # 21 Exhibit 51, # 22 Exhibit 52, # 23 Exhibit 53, # 24 Exhibit 54, # 25 Exhibit 55, # 26 Exhibit 56, # 27 Exhibit 57, # 28 Exhibit 58)(Lane, Daniel) (Entered: 11/22/2013)
26 Unopposed MOTION for Extension of Time to File Response/Reply as to 24 Unopposed MOTION for Leave to Exceed Page Limitation on Plaintiffs' Motion for Preliminary Injunction Enjoining Defendants from Enforcing Texas' Same−Sex Marriage Ban by Greg Abbott, David Lakey, Rick Perry. (Attachments: # 1 Proposed Order)(Deane, William) (Entered: 11/26/2013)
27 ORDER GRANTING 24 Motion for Leave to File Excess Pages. Signed by Judge Orlando L. Garcia. (rg) (Entered: 11/27/2013)
28 OPPOSED MOTION for Preliminary Injunction by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (rg) (Entered: 11/27/2013)
29 APPENDIX to 28 MOTION for Preliminary Injunction by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, David Lakey, Rick Perry, Mark Phariss. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30)(rg) (Entered: 11/27/2013)
32 ORDER GRANTING 26 Motion for Extension of Time to File Response/Reply. Signed by Judge Orlando L. Garcia. (rg) (Entered: 12/03/2013)
30 MOTION for Extension of Time to File Response/Reply Defendant Rickhoff's Unopposed Motion for Extension of Time to File Response to Plaintiffs' Motion for Preliminary Injunction by Gerard Rickhoff. (Attachments: # 1 Proposed Order)(Bowen, Susan) (Entered: 12/02/2013)
33 Response in Opposition to Motion, filed by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss, re 20 MOTION to Dismiss Defendant Bexar County Clerk Rickhoff's Motion to Be Dismissed from Plaintiffs' Original Complaint for Declaratory and Injunctive Relief Pursuant to Rule 12(b)(6) filed by Defendant Gerard Rickhoff (Lane, Daniel) (Entered: 12/09/2013)
34 ORDER, Oral Argument Hearing set for 2/12/2014 9:30 AM before Judge Orlando L. Garcia. Signed by Judge Orlando L. Garcia. (rf) (Entered: 12/11/2013)

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 9 of 17

12/19/2013 12/23/2013 12/23/2013
12/23/2013 12/23/2013 12/23/2013
12/27/2013 01/03/2014 01/03/2014
01/06/2014 01/06/2014 01/08/2014 01/10/2014 01/17/2014 01/22/2014 01/24/2014

35 NOTICE regarding January 9, 2014 hearing on Defendants' Motion to Consolidate by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss (Lane, Daniel) (Entered: 12/19/2013)
36 Unopposed MOTION for Leave to Exceed Page Limitation ON DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION by Greg Abbott, David Lakey, Rick Perry. (Attachments: # 1 Proposed Order)(Deane, William) (Entered: 12/23/2013)
37 DOCUMENT DEFICIENT − See Deficiency Notice #38. NOTICE of Attorney Appearance by Michael P. Murphy on behalf of Greg Abbott, David Lakey, Rick Perry. Attorney Michael P. Murphy added to party Greg Abbott(pty:dft), Attorney Michael P. Murphy added to party David Lakey(pty:dft), Attorney Michael P. Murphy added to party Rick Perry(pty:dft) (Attachments: # 1 Supplement Certificate of Service)(Murphy, Michael) Modified on 12/23/2013 (rg). (Entered: 12/23/2013)
38 DEFICIENCY NOTICE:to attorney Michael P. MurphyNo certificate of service was included in pleading. Please file ONLY the certificate of service in the form of a pleading using the "Certificate of Service" event located under the 'Service of Process' menu. re 37 Notice of Appearance. (rg) (Entered: 12/23/2013)
39 CERTIFICATE OF SERVICE by Greg Abbott, David Lakey, Rick Perry 37 Notice of Appearance, (Murphy, Michael) (Entered: 12/23/2013)
40 Response in Opposition to Motion, filed by Greg Abbott, David Lakey, Rick Perry, re 28 MOTION for Preliminary Injunction filed by Plaintiff Mark Phariss, Plaintiff Cleopatra DeLeon, Plaintiff Nicole Dimetman, Plaintiff Victor Holmes (Attachments: # 1 Appendix Exhibit 1, # 2 Proposed Order Proposed Order)(Murphy, Michael) (Entered: 12/23/2013)
41 RESPONSE Defendant Rickhoff's Response to Plaintiffs' Request for a Preliminary Injunction and Supporting Brief to 28 MOTION for Preliminary Injunction by Gerard Rickhoff. (Bowen, Susan) (Entered: 12/27/2013)
42 MOTION for Leave to File Amicus Briefin Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction by Robert P. Wilson. by Texas Values. (Attachments: # 1 Proposed Order)(Wilson, Robert) (Entered: 01/03/2014)
43 ***DOCUMENT HAS BEEN STRICKEN PURSUANT TO AN ORDER STRIKING PLEADING FILED 1/06/2014, DOCUMENT #44***BRIEF regarding 42 MOTION for Leave to File Amicus Briefin Support of Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction by Robert P. Wilson. by Texas Values. (Wilson, Robert) Modified on 1/7/2014;ACCESS HAS BEEN RESTRICTED AND CAN ONLY BE VIEWED BY COURT USERS AND ATTORNEYS OF RECORD (rg). (Entered: 01/03/2014)
44 ORDER DENYING 42 Motion for Leave to File Amicus Brief. The Court ORDERS Movant's brief (docket no. 43) be STRICKEN from the record in this case. Signed by Judge Orlando L. Garcia. (rg) (Entered: 01/07/2014)
45 ORDER GRANTING 36 Motion for Leave to Exceed Page Limit. Signed by Judge Orlando L. Garcia. (rg) (Entered: 01/07/2014)
46 ADVISORY TO THE COURT by Greg Abbott, Rick Perry. (Attachments: # 1 Exhibit Order in pending case)(Murphy, Michael) (Entered: 01/08/2014)
47 Opposed MOTION to Transfer Case by Greg Abbott, David Lakey, Rick Perry. (Attachments: # 1 Proposed Order)(Deane, William) (Entered: 01/10/2014)
48 RESPONSE to Motion, filed by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss, re 47 Opposed MOTION to Transfer Case filed by Defendant David Lakey, Defendant Rick Perry, Defendant Greg Abbott (Attachments: # 1 Exhibit A)(Lane, Daniel) (Entered: 01/17/2014)
49 ORDER DENYING 47 Motion to Transfer Case. Signed by Judge Orlando L. Garcia. (rf) (Entered: 01/23/2014)
50 MOTION for Leave to File response in excess of the page limitation by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Proposed

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 10 of 17

01/28/2014 01/28/2014
02/11/2014 02/11/2014 02/11/2014
02/11/2014 02/11/2014 02/11/2014 02/12/2014 02/12/2014 02/12/2014 02/13/2014
02/13/2014
02/13/2014 02/13/2014
02/14/2014
02/24/2014

Order, # 2 Reply in Support of Motion for Prelim Inj)(rg) (Entered: 01/27/2014)
51 ORDER GRANTING 50 Motion for Leave to Exceed Page Limit. Signed by Judge Orlando L. Garcia. (rg) (Entered: 01/28/2014)
52 RESPONSE in Support, filed by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss, re 28 MOTION for Preliminary Injunction filed by Plaintiff Mark Phariss, Plaintiff Cleopatra DeLeon, Plaintiff Nicole Dimetman, Plaintiff Victor Holmes (rg) (Entered: 01/29/2014)
53 Proposed Scheduling Order by Greg Abbott, David Lakey, Rick Perry. (Deane, William) (Entered: 02/11/2014)
54 STATUS REPORT Joint Rule 26(F) Status Report by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Lane, Daniel) (Entered: 02/11/2014)
55 ***DOCUMENT IS DEFICIENT − NO CERTIFICATE OF SERVICE ATTACHED***Proposed Scheduling Order by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Lane, Daniel) Modified on 2/11/2014 to designate deficiency (aej). (Entered: 02/11/2014)
56 DEFICIENCY NOTICE: ***NOTIFIED COUNSEL THAT DOCUMENT IS DEFICIENT − CERTIFICATE OF SERVICE MISSING*** re 55 Scheduling Recommendations/Proposed Scheduling Order (aej) (Entered: 02/11/2014)
57 CERTIFICATE OF SERVICE by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss 55 Scheduling Recommendations/Proposed Scheduling Order (Lane, Daniel) (Entered: 02/11/2014)
58 Proposed Scheduling Order −corrected by Greg Abbott, David Lakey, Rick Perry. (Deane, William) (Entered: 02/11/2014)
59 Minute Entry for proceedings held before Judge Orlando L. Garcia: Miscellaneous Hearing held on 2/12/2014 (Minute entry documents are not available electronically.). (Court Reporter Leticia Rangel.)(aej) (Entered: 02/12/2014)
Motions Taken Under Advisement: 28 MOTION for Preliminary Injunction (aej) (Entered: 02/12/2014)
60 ORDER DENYING 20 Motion to Dismiss Defendant Bexar County Clerk Rickhoff. Signed by Judge Orlando L. Garcia. (rg) (Entered: 02/12/2014)
61 Unopposed MOTION for Leave to File Notice of Recent Authority in Support of Plaintiffs' Motion for Preliminary Inhunction by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Notice of Recent Authority in Support of Plaintiffs' Motion for Preliminary Injunction, # 2 Exhibit A to Notice of Recent Authority)(Lane, Daniel) (Entered: 02/13/2014)
62 Unopposed MOTION for Leave to File Plaintiffs' Post−Submission Response Regarding Merritt v. Attorney General by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Plaintiffs' Post−Submission Response Regarding Merritt v. Attorney General, # 2 Exhibit A to Plaintiffs' Post−Submission Response)(Lane, Daniel) (Entered: 02/13/2014)
63 ORDER GRANTING 61 Motion for Leave to File. Signed by Judge Orlando L. Garcia. (aej) (Entered: 02/14/2014)
64 NOTICE of Recent Authority in Suppport of Plaintiff's Motion for Preliminary Injunction by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss re 28 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A)(aej) (Entered: 02/14/2014)
65 Opposed MOTION for Leave to File Plaintiffs' Notice of Recent Authority by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Notice of Recent Authority in Support of Plaintiffs' Motion for Preliminary Injunction, # 2 Proposed Order)(Lane, Daniel) (Entered: 02/14/2014)
66 Unopposed MOTION for Leave to File Notice of Recent Authority in Support of Plaintiffs' Motion for Preliminary Injunction by Cleopatra DeLeon, Nicole Dimetman,

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 11 of 17

02/24/2014
02/24/2014 02/24/2014 02/25/2014 02/25/2014 02/25/2014 02/26/2014
02/27/2014 02/27/2014
03/06/2014 03/07/2014 03/10/2014 03/10/2014

Victor Holmes, Mark Phariss. (Attachments: # 1 Notice of Recent Authority in Support of Plaintiffs; Motion for Preliminary Injunction, # 2 Exhibit A to Notice of Recent Authority, # 3 Proposed Order)(Lane, Daniel) (Entered: 02/24/2014)
67 MOTION for Reconsideration Motion for Leave to File Brief of Amicus Curiae by Texas Values. (Attachments: # 1 Exhibit "A" Motion for Leave, # 2 Exhibit "A−1" Brief, # 3 Exhibit "A−2" Proposed Order Granting Motion for Leave and Filing of Brief, # 4 Proposed Order Granting Motion to Reconsider)(Wilson, Robert) (Entered: 02/24/2014)
68 ORDER GRANTING 66 Motion for Leave to File Notice of Recent Authority. Signed by Judge Orlando L. Garcia. (rg) (Entered: 02/25/2014)
69 NOTICE of Filing Recent Authority in Support of Plaintiffs' Motion for Preliminary Injunction by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Exhibit A)(rg) (Entered: 02/26/2014)
70 ORDER GRANTING 65 Motion for Leave to File Notice of Recent Authority−Illinois Court Decision. Signed by Judge Orlando L. Garcia. (rg) (Entered: 02/26/2014)
71 NOTICE of Filing Recent Authority in Support of Plaintiff's Motion for Preliminary Injunction by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (rg) (Entered: 02/26/2014)
72 ORDER DENYING 67 Motion for Reconsideration. Signed by Judge Orlando L. Garcia. (rg) (Entered: 02/26/2014)
73 ORDER GRANTING 28 Motion for Preliminary Injunction. The Court enjoins Defendants from enforcing Article 1, Section 32 of the Texas Constitution, any related provisions in the Texas Family Code, and any other laws or regulations prohibiting a person from marrying another person of the same sex or recognizing same−sex marriage.In accordance with the Supreme Court's issuance of a stay in Herbert v. Kitchen, and consistent with the reasoning provided in Bishop and Bostic, this Court stays execution of thispreliminary injunction pending the final disposition of any appeal to the Fifth Circuit Court of Appeals. Signed by Judge Orlando L. Garcia. (rg) (Entered: 02/26/2014)
74 Appeal of Order entered by District Judge 73 by Greg Abbott, David Lakey, Rick Perry. No filing fee submitted (Murphy, Michael) (Entered: 02/27/2014)
NOTICE OF INTERLOCUTORY APPEAL as to 73 Order on Motion for Preliminary Injunction, by Greg Abbott, David Lakey, Rick Perry. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (rg) (Entered: 02/27/2014)
75 Unopposed MOTION to Stay Case by Greg Abbott, David Lakey, Rick Perry. (Attachments: # 1 Proposed Order Order Granting Unopposed Motion To Stay Proceedings)(Murphy, Michael) (Entered: 03/06/2014)
76 ORDER GRANTING 75 Motion to Stay Case. Signed by Judge Orlando L. Garcia. (rg) (Entered: 03/10/2014)
77 NOTICE −Transcript Order Form by Greg Abbott, David Lakey, Rick Perry (Deane, William) (Entered: 03/10/2014)
78 Transcript filed of Proceedings held on 02/12/2014, Proceedings Transcribed: Preliminary Injunction Hearing. Court Reporter/Transcriber: Leticia Ornelas Rangel, Telephone number: 210−244−5039. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 3/31/2014, Redacted Transcript Deadline set for 4/10/2014, Release of Transcript Restriction set for 6/9/2014, Appeal Record due by 3/25/2014, (Rangel, Leticia) (Entered: 03/10/2014)

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 12 of 17

03/21/2014 05/28/2014 06/06/2014 06/09/2014 06/25/2014 10/03/2014 11/24/2014 11/25/2014
11/25/2014 11/26/2014
12/03/2014 12/03/2014
12/03/2014 12/04/2014 12/12/2014 01/15/2015 01/16/2015 01/16/2015

79 USCA Appeal Fees received $505.00 receipt number 500024727 re Notice of Appeal − Interlocutory, filed by David Lakey, Rick Perry, Greg Abbott (rg) (Entered: 03/24/2014)
NOTICE of Certification of Electronic Record on Appeal submitted to 5th USCA for ACCEPTANCE in USCA #14−50196. re 74 Notice of Appeal (E−Filed), Notice of Appeal − Interlocutory. (dtg) (Entered: 05/28/2014)
80 Certified and Transmitted Electronic Record on Appeal (1 CD) to ASSISTANT ATTORNEY GENERAL, JONATHAN MITCHELL. re 73 Notice of Appeal − Interlocutory. (dtg) (Entered: 06/24/2014)
USCA Case Number 14−50196 for Notice of Appeal − Interlocutory,, filed by David Lakey, Rick Perry, Greg Abbott. (rf) (Entered: 06/09/2014)
81 Certified and Hand Delivered Electronic Record on Appeal (1 CD) to ATTORNEY, DANIEL LANE. re 74 Notice of Appeal − Interlocutory. (dtg) (Entered: 06/25/2014)
82 ORDER of USCA (certified copy) regarding Order Granting separate amici briefs. ; re Notice of Appeal − Interlocutory,, (Attachments: # 1 Transmittal Letter from USCA5)(mgr) (Entered: 10/03/2014)
83 Opposed MOTION to Lift Stay of Injunction re 76 Order on Motion to Stay Case by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Lane, Daniel) (Entered: 11/24/2014)
84 Response in Opposition to Motion, filed by Greg Abbott, David Lakey, Rick Perry, re 83 Opposed MOTION to Lift Stay of Injunction re 76 Order on Motion to Stay Case filed by Plaintiff Mark Phariss, Plaintiff Cleopatra DeLeon, Plaintiff Nicole Dimetman, Plaintiff Victor Holmes (Murphy, Michael) (Entered: 11/25/2014)
85 ATTACHMENT Proposed Order to 84 Response in Opposition to Motion, by Greg Abbott, David Lakey, Rick Perry. (Murphy, Michael) (Entered: 11/25/2014)
86 REPLY to Response to Motion, filed by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss, re 83 Opposed MOTION to Lift Stay of Injunction re 76 Order on Motion to Stay Case filed by Plaintiff Mark Phariss, Plaintiff Cleopatra DeLeon, Plaintiff Nicole Dimetman, Plaintiff Victor Holmes (Lane, Daniel) (Entered: 11/26/2014)
87 NOTICE Recent Authority by Greg Abbott, David Lakey, Rick Perry re 83 Opposed MOTION to Lift Stay of Injunction re 76 Order on Motion to Stay Case, 84 Response in Opposition to Motion, (Murphy, Michael) (Entered: 12/03/2014)
88 NOTICE of Additional Authority by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss re 83 Opposed MOTION to Lift Stay of Injunction re 76 Order on Motion to Stay Case (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lane, Daniel) (Entered: 12/03/2014)
89 NOTICE Recent Authority by Greg Abbott, David Lakey, Rick Perry re 83 Opposed MOTION to Lift Stay of Injunction re 76 Order on Motion to Stay Case, 88 Notice (Other), (Murphy, Michael) (Entered: 12/03/2014)
90 NOTICE of Recent Authority by Greg Abbott, David Lakey, Rick Perry re 83 Opposed MOTION to Lift Stay of Injunction re 76 Order on Motion to Stay Case (Murphy, Michael) (Entered: 12/04/2014)
91 ORDER DENYING 83 Motion to Lift the Stay of Injunction. Signed by Judge Orlando L. Garcia. (rf) (Entered: 12/12/2014)
92 NOTICE of Attorney Substitution Scott A. Keller in place of Jonathan F. Mitchell by Greg Abbott, David Lakey, Rick Perry. (Keller, Scott) Modified docket text on 1/16/2015 (rg). (Entered: 01/15/2015)
93 MOTION to Substitute Attorney Jonathan F. Mitchell by Greg Abbott, David Lakey, Rick Perry. (Attachments: # 1 Proposed Order)(Keller, Scott) (Entered: 01/16/2015)
94 ORDER GRANTING 93 Motion to Substitute Attorney Scott A. Keller in place of Jonathan F. Mitchell. Signed by Judge Orlando L. Garcia. (rg) (Entered: 01/20/2015)

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 13 of 17

06/26/2015 06/26/2015 06/29/2015
07/07/2015 07/21/2015 07/22/2015 07/31/2015 08/03/2015 08/04/2015
08/05/2015 08/05/2015
08/06/2015 08/06/2015

95 EMERGENCY UNOPPOSED MOTION Plaintiffs' and Defendant Gerard Rickhoff's Unopposed Emergency Motion to Lift Stay of Injunction by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Chasnoff, Barry) (Entered: 06/26/2015)
96 ORDER GRANTING re 95 Emergency Unopposed Motion to Lift the Stay of Injunction filed by Mark Phariss, Cleopatra DeLeon, Nicole Dimetman, Victor Holmes. Signed by Judge Orlando L. Garcia. (rg) (Entered: 06/26/2015)
97 Certified copy of USCA JUDGMENT/MANDATE Affirming 74 Notice of Appeal (E−Filed) filed by David Lakey, Rick Perry, Greg Abbott. Because, as both sides now agree, the injunction appealed from is correct in light of Obergefell, the preliminary injunction is AFFIRMED. This matter is REMANDED for entry of judgment in favor of the plaintiffs. The court must act expeditiously on remand and should enter final judgment on themerits (exclusive of any collateral matters such as costs and attorney fees) by July 17, 2015 and earlier if reasonable possible. (Attachments: # 1 Transmittal Letter from USCA5)(mgr) (Entered: 07/07/2015)
98 FINAL JUDGMENT. Signed by Judge Orlando L. Garcia. (rg) (Entered: 07/09/2015)
99 Joint MOTION for Extension of Time to File to move for attorneys' fees by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Proposed Order)(Lane, Daniel) (Entered: 07/21/2015)
100 ORDER GRANTING 99 Motion for Extension of Time to File motion for attorney fees. Signed by Judge Orlando L. Garcia. (rg) (Entered: 07/22/2015)
101 Joint MOTION Extending Time to Move for Attorneys' Fees by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Proposed Order)(Pepping, Matthew) (Entered: 07/31/2015)
102 ORDER GRANTING 101 Motion to extend time to move for attorneys' fees on or before September 4, 2015. Signed by Judge Orlando L. Garcia. (rg) (Entered: 08/03/2015)
103 NOTICE of Attorney Appearance by Andrew F. Newman on behalf of Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. Attorney Andrew F. Newman added to party Cleopatra DeLeon(pty:pla), Attorney Andrew F. Newman added to party Nicole Dimetman(pty:pla), Attorney Andrew F. Newman added to party Victor Holmes(pty:pla), Attorney Andrew F. Newman added to party Mark Phariss(pty:pla) (Newman, Andrew) (Entered: 08/04/2015)
104 MOTION for Contempt Emergency Motion to Intervene and for Contempt by John Allen Stone−Hoskins. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Lane, Daniel) (Entered: 08/05/2015)
105 ORDER GRANTING 104 EMERGENCY MOTION for Contempt and to Intervene filed by John Allen Stone−Hoskins. (Contempt Hearing set for 8/12/2015 10:00 AM before Judge Orlando L. Garcia). The parties may submit written pleadings and responses in relation to the motion for contempt, and for this Court's consideration, no later than Monday August 10. 2015. It is further ORDERED that Defendant Kirk Cole, in his official capacity as interim Commissioner of the Texas Department of State Health Services, immediately issue an amended death certificate for James H. Stone−Hoskins to state that John Allen Stone−Hoskins is the surviving spouse of James, and in doing so, fully recognize their legal out−of−state marriage. Signed by Judge Orlando L. Garcia. (rg) (Entered: 08/05/2015)
106 Opposed MOTION for Reconsideration re 105 Order,,,, Terminate Motions,,,, Set Deadlines/Hearings,,, by Greg Abbott, David Lakey, Rick Perry. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Rietvelt, Marc) (Entered: 08/06/2015)
107 NOTICE of Attorney Appearance by Marc Edward Rietvelt on behalf of Greg Abbott, David Lakey, Rick Perry. Attorney Marc Edward Rietvelt added to party Greg Abbott(pty:dft), Attorney Marc Edward Rietvelt added to party David Lakey(pty:dft), Attorney Marc Edward Rietvelt added to party Rick Perry(pty:dft) (Rietvelt, Marc) (Entered: 08/06/2015)

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 14 of 17

08/10/2015 08/10/2015
08/10/2015 08/10/2015
08/11/2015
08/11/2015
08/12/2015 08/24/2015 08/26/2015 09/01/2015 09/04/2015 09/04/2015

108 MOTION to Quash Court's August 5 Order by Greg Abbott, David Lakey, Rick Perry, Gerard Rickhoff. (Attachments: # 1 Affidavit Exh A − Affidavit of Brantley Starr, # 2 Affidavit Affidavit of Barbara Klein, # 3 Proposed Order)(Deane, William) (Entered: 08/10/2015)
109 RESPONSE to Motion, filed by John Allen Stone−Hoskins, re 108 MOTION to Quash Court's August 5 Order filed by Defendant David Lakey, Defendant Rick Perry, Defendant Gerard Rickhoff, Defendant Greg Abbott, 106 Opposed MOTION for Reconsideration re 105 Order,,,, Terminate Motions,,,, Set Deadlines/Hearings,,, filed by Defendant David Lakey, Defendant Rick Perry, Defendant Greg Abbott (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit D, # 4 Exhibit E)(Lane, Daniel) (Entered: 08/10/2015)
110 Minute Entry for proceedings held before Judge Orlando L. Garcia: Telephone Conference held on 8/10/2015. (Minute entry documents are not available electronically.). (Court Reporter Leticia Rangel.)(rg) (Entered: 08/10/2015)
111 ORDER (Contempt Hearing is reset for 9/10/2015 10:30 AM before Judge Orlando L. Garcia,) The postponement of the hearing will allow the parties to continue their efforts toward a global resolution of the issues that Intervenor John Allen Stone−Hoskins and others have reportedly encountered. The Court will issue a more detailed order within the next two days. Signed by Judge Orlando L. Garcia. (rg) (Entered: 08/10/2015)
112 Transcript filed of Proceedings held on 08/10/2015, Proceedings Transcribed: TELEPHONIC CONFERENCE. Court Reporter/Transcriber: Leticia Ornelas Rangel, Telephone number: 210−244−5039. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 9/1/2015, Redacted Transcript Deadline set for 9/11/2015, Release of Transcript Restriction set for 11/9/2015, Appeal Record due by 8/26/2015, (Rangel, Leticia) (Entered: 08/11/2015)
113 ORDER, that the Court Orderes Defendants to submit an advisory to the Court no later than Monday, August 24, 2015 regarding the policies and procedure, guidelines recognizing same−sex marriage in Death and Birth Certificates issued in the State of Texas, and assuring the Court that the Dept. of State Health Services has granted all pending applications for dealth and birth certificates involving same−sex couples, assuming the applications are complete and qualify for approval. re 110 Telephonic Status Conference,. Signed by Judge Orlando L. Garcia. (wg) (Entered: 08/11/2015)
114 ADVISORY TO THE COURT by Greg Abbott, David Lakey, Rick Perry. (Attachments: # 1 Affidavit)(Deane, William) (Entered: 08/12/2015)
115 ADVISORY TO THE COURT by Greg Abbott, David Lakey, Rick Perry. (Murphy, Michael) (Entered: 08/24/2015)
116 RESPONSE to 115 Advisory to the Court by John Allen Stone−Hoskins. (Attachments: # 1 Exhibit A)(Lane, Daniel) (Entered: 08/26/2015)
117 ORDER − the Court finds the contempt hearing scheduled for September10, 2015 is no longer necessary and is hereby VACATED. DENYING AS MOOT 106 Motion for Reconsideration ; DENYING AS MOOT 108 Motion to Quash Signed by Judge Orlando L. Garcia. (rg) (Entered: 09/02/2015)
118 MOTION for Attorney Fees by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Proposed Order)(Lane, Daniel) (Entered: 09/04/2015)
119 ***DOCUMENT IS DEFICIENT − MISSING CERTIFICATE OF SERVICE*****NOTICE of Filing Declaration of Daniel McNeel Lane, Jr. in Support of Plaintiffs' Motion for Attorneys' Fees by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20

Case: 5:13-cv-982 As of: 03/22/2018 10:04 PM CDT 15 of 17

09/04/2015
09/04/2015
09/04/2015 09/04/2015 09/04/2015 09/04/2015 10/05/2015 10/05/2015
10/06/2015 10/06/2015 10/08/2015 10/12/2015
10/16/2015 10/19/2015 10/26/2015

Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26)(Lane, Daniel) Modified on 9/4/2015, to designate deficiency (rf). (Entered: 09/04/2015)
120 ***DOCUMENT IS DEFICIENT − MISSING CERTIFICATE OF SERVICE ***NOTICE of Filing Declaration of Saul Perloff in Support of Plaintiffs' Motion for Attorneys' Fees and Costs by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss (Lane, Daniel) Modified on 9/4/2015, to designate deficiency (rf). (Entered: 09/04/2015)
121 **DOCUMENT IS DEFICIENT − MISSING CERTIFICATE OF SERVICE ****NOTICE of Filing Declaration of Carlos R. Soltero in Support of Plaintiffs' Motion for Attorneys' Fees and Costs by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss (Attachments: # 1 Exhibit A)(Lane, Daniel) Modified on 9/4/2015, to designate deficiency (rf). (Entered: 09/04/2015)
122 DEFICIENCY NOTICE: ***NOTIFIED COUNSEL THAT DOCUMENT IS DEFICIENT − THESE THREE DOCUMENTS ARE MISSING CERTIFICATE OF SERVICE**** re 120 Notice of Filing, 121 Notice of Filing, 119 Notice of Filing (rf) (Entered: 09/04/2015)
123 CERTIFICATE OF SERVICE by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss 119 Notice of Filing,,, (Lane, Daniel) (Entered: 09/04/2015)
124 CERTIFICATE OF SERVICE by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss 120 Notice of Filing, (Lane, Daniel) (Entered: 09/04/2015)
125 CERTIFICATE OF SERVICE by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss 121 Notice of Filing, (Lane, Daniel) (Entered: 09/04/2015)
126 NOTICE regarding Attorneys' Fees and Costs by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss (Lane, Daniel) (Entered: 10/05/2015)
127 Unopposed MOTION for Leave to Exceed Page Limitation by Greg Abbott, David Lakey, Rick Perry. (Attachments: # 1 Exhibit 1 State Defendants' Response to Plaintiffs' Motion for Attorney's Fees and Costs, # 2 Exhibit A, # 3 Exhibit A−1 to A−15, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Proposed Order)(Lee, Summer) (Entered: 10/05/2015)
128 NOTICE of Attorney Appearance by Summer R. Lee on behalf of Greg Abbott, David Lakey, Rick Perry (Lee, Summer) Modified on 10/6/2015 (rg). (Entered: 10/06/2015)
129 NOTICE of Attorney Appearance by Summer R. Lee on behalf of Greg Abbott, David Lakey, Rick Perry (Lee, Summer) (Entered: 10/06/2015)
130 ORDER GRANTING 127 Motion for Leave to File Excess Pages. Signed by Judge Orlando L. Garcia. (rg) (Entered: 10/09/2015)
131 RESPONSE to Motion, filed by Greg Abbott, David Lakey, Rick Perry, re 118 MOTION for Attorney Fees filed by Plaintiff Mark Phariss, Plaintiff Cleopatra DeLeon, Plaintiff Nicole Dimetman, Plaintiff Victor Holmes (Attachments: # 1 Exhibit A, # 2 Exhibit A−1 to A−15, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Lee, Summer) (Entered: 10/12/2015)
132 Unopposed MOTION for Extension of Time to File Response/Reply In Support of Motion for Attorneys' Fees by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Proposed Order)(Pepping, Matthew) (Entered: 10/16/2015)
Text Order GRANTING 132 Unopposed Motion for Extension of Time to File Response/Reply to Motion for Attorneys Fees entered by Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 10/19/2015)
133 REPLY to Response to Motion, filed by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss, re 118 MOTION for Attorney Fees filed by Plaintiff Mark Phariss, Plaintiff Cleopatra DeLeon, Plaintiff Nicole Dimetman, Plaintiff Victor Holmes (Lane, Daniel) (Entered: 10/26/2015)

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10/26/2015
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134 NOTICE of Declaration of Daniel McNeel Lane, Jr. In Support of Plaintiffs' Reply In Support of Motion for Attorneys' Fees and Costs by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss re 133 Reply to Response to Motion, (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(Lane, Daniel) (Entered: 10/26/2015)
135 ORDER GRANTING IN PART 118 Motion for Attorney Fees in the amount of $585,470.30 and $20,202.90 in costs. Signed by Judge Orlando L. Garcia. (rg) (Entered: 11/30/2015)
136 Appeal of Order entered by District Judge 135 by Greg Abbott, David Lakey, Rick Perry. No filing fee submitted (Lee, Summer) (Entered: 12/28/2015)
NOTICE OF APPEAL following 136 Notice of Appeal (E−Filed) by Greg Abbott, David Lakey, Rick Perry. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (rg) (Entered: 12/28/2015)
137 Amended Appeal of Order entered by District Judge 135 by Greg Abbott, David Lakey, Rick Perry. No filing fee submitted (Lee, Summer) (Entered: 12/29/2015)
NOTICE OF APPEAL following 137 Notice of Appeal (E−Filed) by Greg Abbott, David Lakey, Rick Perry. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (rg) (Entered: 12/29/2015)
138 ADVISORY TO THE COURT by Greg Abbott, David Lakey, Rick Perry. (Lee, Summer) (Entered: 01/05/2016)
Certification of the Electronic Record on Appeal has been accepted by the 5th Circuit re Notice of Appeal,, Notice of Appeal,,. Attorneys are advised that they may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (mgr) (Entered: 02/17/2016)
140 MOTION to Withdraw as Attorney by Cleopatra DeLeon. (Pepping, Matthew) (Entered: 08/16/2016)
141 DEFICIENCY NOTICE: to attorney Matthew E. Pepping −Proposed order required with motion. DO NOT re−file entire document. Please file ONLY the proposed order using the "Attachment" event located under "Other Documents" from menu and link the proposed order to this document. See page 11, item 9d of the Administrative Policies and Procedures for Electronic Filing, Western of District of Texas./font> re 140 MOTION to Withdraw as Attorney (rg) (Entered: 08/17/2016)
142 Proposed Pretrial Order on Motion to Withdraw by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Proposed Order)(Pepping, Matthew) (Entered: 08/17/2016)
143 ORDER GRANTING 140 Motion to Withdraw as Attorney. Signed by Chief Judge Orlando L. Garcia. (rf) (Entered: 08/25/2016)
144 Unopposed MOTION for Extension of Time to File Motion for Attorney Fees by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Proposed Order)(Weisel, Jessica) (Entered: 05/02/2017)
Text Order GRANTING 144 Unopposed Motion for Extension of Time to File Motion for Attorneys Fees entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 05/08/2017)
145 Certified copy of USCA JUDGMENT/MANDATE Affirming Notice of Appeal, filed by David Lakey, Rick Perry, Greg Abbott, 137 Notice of Appeal (E−Filed) filed by David Lakey, Rick Perry, Greg Abbott, 136 Notice of Appeal (E−Filed) filed by David Lakey, Rick Perry, Greg Abbott, Notice of Appeal, filed by David Lakey, Rick Perry,

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05/30/2017
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Greg Abbott. (Attachments: # 1 TRANSMITTAL LETTER FROM USCA5)(dtg) (Entered: 05/10/2017)
146 Unopposed MOTION for Attorney Fees by Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss. (Attachments: # 1 Proposed Order)(Weisel, Jessica) (Entered: 05/30/2017)
147 ORDER GRANTING 146 Plaintiff's Motion for Attorney Fees in the amount of$630,673.20. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 06/01/2017)
148 NOTICE of Vacation Dates by Greg Abbott, David Lakey, Rick Perry (Lee, Summer) (Entered: 10/19/2017)
149 SATISFACTION OF JUDGMENT filed by Greg Abbott, David Lakey, Rick Perry. (Lee, Summer) (Entered: 11/29/2017)