12939747 - state opposition

No. 14-50196

In the United States Court of Appeals for the Fifth Circuit _____________

CLEOPATRA DE LEON; NICOLE DIMETMAN; VICTOR HOLMES; MARK

PHARISS, Plaintiffs-Appellees,

v.

GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF

TEXAS; KEN PAXTON, IN HIS OFFICIAL CAPACITY AS TEXAS ATTORNEY

GENERAL; KIRK COLE, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF

THE DEPARTMENT OF STATE HEALTH SERVICES, Defendants-Appellants.

_____________

On Appeal from the United States District Court

for the Western District of Texas, San Antonio Division

Case No. 5:13-cv-982

_____________

Defendants-Appellants’ Response in Opposition to

Plaintiffs-Appellees’ Motion to Lift Stay _____________

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

SCOTT A. KELLER

Solicitor General

BETH KLUSMANN

MICHAEL P. MURPHY

Assistant Solicitors General

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

(512) 936-1700

Counsel for Defendants-Appellants

Case: 14-50196 Document: 00512939747 Page: 1 Date Filed: 02/19/2015

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The district court recognized that lifting the stay it entered pending

appeal “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.” Order Denying Plaintiffs’ Motion to Lift the

Stay of Injunction 5, 5:13-cv-00982-OLG (W.D. Tex. Dec. 12, 2014), ECF

No. 91 (De Leon Stay Order). Nonetheless, for the second time in this

litigation, the plaintiffs now move to lift the stay.

Neither of the plaintiffs’ arguments justifies lifting the stay. First,

the Supreme Court’s recent orders in the Alabama and Florida cases did

not lift a stay then in place and, in any event, have no legal consequence

here. Indeed, the justification for a stay is only strengthened by the

Supreme Court’s recent agreement to decide whether longstanding

marriage laws like those in Texas, Louisiana, and Mississippi violate the

Constitution.

Second, the district court has already weighed the equities, and it

rightly concluded that the imminence of a resolution on the merits and

the risk of irreversible disorder from changing the status quo counsel in

favor of a stay pending appeal. The harm alleged by one particular


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plaintiff—not being recognized as a child’s parent at the time of birth—

is not an irreparable injury and would not be redressed by lifting the stay.

I. THE SUPREME COURT’S REFUSAL TO ENTER STAYS IN OTHER

MARRIAGE CASES HAS NO LEGAL CONSEQUENCE HERE.

The plaintiffs’ main basis for asking the Court to lift the stay is that

the Supreme Court declined to disrupt the rulings of lower courts by

granting stay motions in marriage cases from Alabama and Florida.

Motion to Lift Stay 1, 3-4; Strange v. Searcy, No. 14A840, 2015 WL

505563 (U.S. Feb. 9, 2015) (Alabama); Armstrong v. Brenner, 135 S. Ct.

890 (2014) (Florida). That development does not warrant any change in

course here.

The plaintiffs are asking this Court to do something that not even

the Supreme Court did: lift an existing stay approved by courts below.

The stay decision, of course, is ultimately discretionary. Hence, different

courts can permissibly reach different, reasonable results. The Supreme

Court’s orders in the Alabama and Florida cases are just as consistent

with allowing circuit and district courts latitude in deciding these

discretionary issues as they are with the plaintiffs’ suggestion that the

Court’s unexplained orders insist on a particular stay outcome.


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And the law is clear that a “denial of a stay is not a decision on the

merits of the underlying legal issues.” Ind. State Police Pension Trust v.

Chrysler LLC, 556 U.S. 960 (2009) (per curiam). Nor does the denial of a

stay indicate that the movant lacks an irreparable injury: “A stay is not

a matter of right, even if irreparable injury might otherwise result.” Nken

v. Holder, 556 U.S. 418, 433 (2009) (quotation marks omitted). The

Supreme Court’s unexplained order denying some litigants a stay

pending appeal no more directs a particular outcome than its prior order

granting other litigants a stay pending appeal. See, e.g., Herbert v.

Kitchen, 134 S. Ct. 893 (Jan. 6, 2014) (staying permanent injunction

against Utah’s marriage law); Herbert v. Kitchen, 135 S. Ct. 265 (Oct. 6,

2014) (denying petition for writ of certiorari).

II. THE JUSTIFICATION FOR A STAY IS STRONGER NOW THAN EVER.

The justification for the stay pending appeal has only strengthened

in the past several weeks. Not only is this Court primed to resolve the

constitutional questions at issue, but the Supreme Court has now agreed

to do so this Term. Lifting the stay also could allow for issuance of

government benefits and other acts that may be difficult or impossible to

reverse. This is why stays remain in place in other circuits.


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A. An Ultimate Resolution of This Case Is Imminent.

The plaintiffs assert that the Constitution demands a result that

has never been compelled by this Court or the Supreme Court, which will

soon decide the constitutional issues raised by the plaintiffs’ claims. Oral

argument in this case occurred last month. And, a few days later, the

Supreme Court granted certiorari in four cases from the Sixth Circuit

that raise the same constitutional issues presented in this case: “[1] Does

the Fourteenth Amendment require a state to license marriage between

two people of the same sex? [2] Does the Fourteenth Amendment require

a state to recognize a marriage between two people of the same sex when

their marriage was lawfully licensed and performed out-of-state?” See

Obergefell v. Hodges, No. 14-556, 2015 WL 213646 (U.S. Jan. 16, 2015);

Tanco v. Haslam, No. 14-562, 2015 WL 213648 (same); DeBoer v. Snyder,

No. 14-571, 2015 WL 213650 (same); Bourke v. Beshear, No. 14-574, 2015

WL 213651 (same).

As this Court recognized in Bryant, the plaintiffs’ claimed harm

depends on the validity of their legal theory and is thus “attenuated by

the imminent consideration of their case.” Campaign for S. Equal. v.

Bryant, 773 F.3d 55, 58 (5th Cir. 2014). And a stay is justified even more


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here than in Bryant, given that a final resolution is now closer. Given

that looming resolution, “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.” Id.

B. Lifting the Stay Would Create Burdensome and

Potentially Irreversible Disruption.

The problems that would come from temporarily suspending

longstanding state marriage law remain just as real today as when the

district court addressed them in December. The district court recognized

the significant legal and practical problems that would result from

suspending the State’s longstanding definition of marriage only

temporarily, concluding that this consideration outweighs the alleged,

temporary harm to the plaintiffs. De Leon Stay Order 5. Similarly, this

Court stayed a preliminary injunction against Mississippi’s marriage law

because “[t]he inevitable disruption that would arise from a lack of

continuity and stability in this important area of law presents a potential

harm” to the State, same-sex couples, and the public. Bryant, 773 F.3d

at 58.

Those concerns remain well-founded. It would be difficult and

costly to undo actions taken in reliance on the preliminary injunction if


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it were allowed to take effect. If Texas’s marriage law were temporarily

suspended, the plaintiffs and other same-sex couples could rely on the

preliminary injunction to obtain marriage licenses or take other actions

in reliance on those licenses. Yet if the state law is ultimately upheld,

the plaintiffs, state officials, and the public at large would face significant

confusion, cost, and difficulty undoing those actions. See id. (concluding

that “considerations of intra-circuit uniformity and the avoidance of

confusion,” should the law be suspended but later restored “after

individuals have relied on this change in law, also militate in favor of

granting” the stay). That is why stays remain in place in Sixth and

Eighth Circuit cases.1

Moreover, if the Court lifted the stay here, it would create the intra-

circuit spilt it just avoided in Bryant, by granting a stay pending appeal.

1 See, e.g., Order, DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014), ECF No.

22-1 (staying pending appeal an order enjoining Michigan’s marriage law);

Rosenbrahn v. Daugaard, No. 4:14-CV-04081-KES, 2015 WL 144567, *11 (D.S.D.

Jan. 12, 2015) (adjudging South Dakota’s marriage law unconstitutional, but staying

that judgment pending appeal “[b]ecause this case presents substantial and novel

legal questions, and because there is a substantial public interest in uniformity and

stability of the law”); Jernigan v. Crane, No. 4:13-CV-00410-KGB, 2014 WL 6685391,

*25 (E.D. Ark. Nov. 25, 2014) (declaring Arkansas marriage law unconstitutional but

staying injunction pending appeal); Lawson v. Kelly, No. 14-0622-CV-W-ODS, 2014

WL 5810215, *10 (W.D. Mo. Nov. 7, 2014) (similar stay pending appeal); see also

Lawson v. Kelly, No. 14-3780 (8th Cir. Jan. 22, 2015), ECF No. 4236892 (denying a

motion to vacate the district court’s stay of its judgment pending appeal).


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Bryant, 773 F.3d at 58. This too weighs in favor of maintaining the status

quo for a short additional time until the plaintiffs’ claims can be

adjudicated with finality.

C. The Alleged Irreparable Injuries Do Not Warrant

Lifting the Stay Because They Have Already Been

Considered, Are Speculative, or Cannot Be Redressed

by Lifting the Stay.

The plaintiffs wrongly suggest that new injuries or threats of injury

warrant lifting the stay. Motion 1-2. These arguments were rejected

before, are speculative, or are not redressable through their motion.

1. Much of the plaintiffs’ argument about irreparable harm was

considered by the district court before it granted the stay. Compare, e.g.,

Motion 1-2 (arguing harm from denial of survivor rights and parental

rights), with Motion for Preliminary Injunction 11-13, 5:13-cv-00982-

OLG (W.D. Tex. Nov. 27, 2013), ECF No. 28 (same). The plaintiffs offer

no reasons why these same alleged injuries now justify lifting the stay.

2. Most of the plaintiffs’ alleged injuries also rest on speculation

that one of the plaintiffs will die or become incapacitated while the stay

is in effect. Motion 1-5. But the plaintiffs do not allege any real

expectation of these tragedies befalling them in the near future. Claims

of speculative injury are not sufficient for preliminary injunctive relief:


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“there must be more than an unfounded fear on the part of the applicant.”

Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011); see also Winter v.

Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (requiring more

than a mere “possibility of irreparable harm”). Nor is it clear that any of

these speculative harms are irreparable. Concerns about care, custody,

and survivor benefits can often be addressed through estate planning,

advanced directives, and other private agreements.

3. Plaintiffs De Leon and Dimetman also argue that they will

suffer irreparable injury if Dimetman’s child is born and they are not

married, as De Leon will not be listed as a parent on the child’s birth

certificate. Motion 6.

As an initial matter, that alleged injury is not irreparable. De Leon

concedes that she can be recognized as a parent through the adoption

process. See id. (“De Leon will not be the child’s legal parent until she

formally adopts the child.”). And even if the adoption process is “onerous,

expensive, and uncertain,” id., that does not render an injury irreparable:

“[m]ere injuries, however substantial, in terms of money, time and energy

necessarily expended in the absence of a stay, are not enough” to make

the injury “irreparable.” Morgan v. Fletcher, 518 F.2d 236, 240 (5th Cir.


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1975) (quoting Va. Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259

F.2d 921, 925 (D.C. Cir. 1958)).

Additionally, even assuming that failing to be listed on a child’s

birth certificate when the child is born is a concrete and irreparable

injury, it is not an injury that would be remedied by lifting the stay. The

plaintiffs realize this, as they seek relief in addition to what they obtained

below: an order from this Court “establishing that Plaintiff De Leon has

full parental rights and directing [the State] to issue a birth certificate

for Dimetman and De Leon’s baby that lists both of them as mothers.”

Motion 2-3. Yet this lawsuit did not challenge the state laws governing

birth certificates.2 The plaintiffs cannot assert this forfeited claim for the

first time on appeal, particularly without a cross-appeal seeking to

expand the scope of the preliminary injunction.3 Moreover, the plaintiffs’

2 See, e.g., TEX. FAM. CODE § 160.201(a) (“The mother-child relationship is established

between a woman and a child by: (1) the woman giving birth to the child; (2) an

adjudication of the woman’s maternity; or (3) the adoption of the child by the

woman.”); TEX. HEALTH & SAFETY CODE § 192.008(a) (“The supplementary birth

certificate of an adopted child must be in the names of the adoptive parents, one of

whom must be a female, named as the mother, and the other of whom must be a male,

named as the father.”); TEX. HEALTH & SAFETY CODE § 192.002 (directing the

Department of State Health Services to “prescribe the form and contents of the birth

certificate” but requiring spaces for social security numbers and signatures of the

“mother and father”); 25 TEX. ADMIN. CODE § 181.13(a) (“The State Registrar shall

determine the items of information to be contained on certificates of birth.”).

3 See, e.g., El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999) (explaining

that appellee may not “attack the decree with a view either to enlarging his own


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requested order directing how the State must document a child’s

parentage falls well within the longstanding domestic-relations exception

to federal courts’ subject-matter jurisdiction, under which federal courts

will not hear child paternity actions.4

CONCLUSION

The plaintiffs’ motion to lift the stay of the district court’s order

should be denied.

rights thereunder or of lessening the rights of his adversary” (quotation marks

omitted)); Justice For All v. Faulkner, 410 F.3d 760, 772 (5th Cir. 2005) (Where party

“did not cross-appeal from the district court’s judgment,” this Court “lack[ed]

jurisdiction to expand the scope of the remedy ordered.”); Leverette v. Louisville

Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (per curiam) (refusing to allow a party

to assert a new claim for the first time on appeal); Ass’n of Co-op. Members, Inc. v.

Farmland Indus., Inc., 684 F.2d 1134, 1138 (5th Cir. 1982) (holding that interlocutory

appellate review is restricted to the “injunctive aspects of the district court’s order”).

4 The domestic-relations exception precludes federal courts from hearing paternity or

child-custody claims. Congleton v. Holy Cross Child Placement Agency, Inc., 919 F.2d

1077, 1078 (5th Cir. 1990); see Rykers v. Alford, 832 F.2d 895, 900 (5th Cir. 1987)

(holding that a federal court should dismiss a case in which it must resolve custody

issues). See generally Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (noting that

the “domestic relations exception . . . divests the federal courts of power to issue

divorce, alimony, and child custody decrees”).


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Respectfully submitted.

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

/s/ Scott A. Keller

SCOTT A. KELLER

Solicitor General

MICHAEL P. MURPHY

BETH KLUSMANN

Assistant Solicitors General

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Tel.: (512) 936-2725

Fax: (512) 474-2697

[email protected]



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CERTIFICATE OF SERVICE

I certify that this document has been filed with the clerk of the court

and served by ECF on February 19, 2015, upon counsel for Appellees.

/s/ Scott A. Keller

SCOTT A. KELLER


CERTIFICATE OF COMPLIANCE

Counsel also certifies that on February 19, 2015, the foregoing

document was transmitted to Mr. Lyle W. Cayce, Clerk of the United

States Court of Appeals for the Fifth Circuit, via the Court’s CM/ECF

Document Filing System, https://ecf.ca5.uscourts.gov/.

Counsel further certifies that: (1) required privacy redactions have

been made, 5TH CIR. R. 25.2.13; (2) the electronic submission is an exact

copy of the paper document, 5TH CIR. R. 25.2.1; and (3) the document has

been scanned with the most recent version of Symantec Endpoint

Protection and is free of viruses.

/s/ Scott A. Keller

SCOTT A. KELLER



12939747 - state opposition

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