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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
CHRISTOPHER DANIEL McNOSKY,
Plaintiff,
SVEN STRICKER,
Plaintiff,
v.
TEXAS GOVERNOR RICK PERRY, et al
Defendants.
Case No. A13-CV-0631 SS
DEFENDANTS OPPOSED MOTION TO CONSOLIDATE TRIAL
AND SCHEDULING DEADLINES
TO THE HONORABLE SAM SPARKS:
Defendants Texas Governor Rick Perry, Texas Attorney General Greg Abbott, and
Commissioner of the Department of State Health Services David Lakey move to
consolidate two other cases into this this earlier filed case for trial and scheduling
purposes only, pursuant to Rule 42(a) Federal Rules of Civil Procedure due to common
questions of fact and law, for the convenience of the parties, witnesses, and the Court, to
promote the just and efficient conduct of the actions, and to avoid a multiplicity of suits,
duplication of testimony, and unnecessary expense and delay.
INTRODUCTION
1. This case was filed on July 29, 2013 and is the first of three current lawsuits
raising the same challenges to Constitutional prohibitions of same-sex marriage and
seeking the same relief against the same State officials.
2. The two other cases are: CIVIL ACTION NO. 1:13-CV-00955-SS, styled
SHANNON ZAHRN, CATHERINE ZAHRN, LEXIUS AUGUSTINE, and ANDREW
SIMPSON, on behalf of themselves and all others similarly situated, Plaintiffs, v. RICK
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PERRY, in his official capacity as Governor of Texas, GREG ABBOTT, in his official
capacity as Attorney General of Texas, and DANA DeBEAUVOIR, in her official apacity
as County Clerk of Travis County, Texas; and CIVIL ACTION NO. 5:13-CV-982-OLG,
styled CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, and MARK
PHARISS, Plaintiffs, v. 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.
3. TheDe Leoncase was filed October 28, 2013, and the Zahrn case was filed
October 31, 2013, see Civil Docket Exhibits B and A respectively.
LEGAL STANDARD FOR CONSOLIDATION
4. Rule 42(a) of the Fed.R.Civ.P. governs the consolidation of actions and provides
that If actions before the court involve a common question of law or fact, the court
may(2). consolidate the actions. As the rule states, a motion to consolidate must
meet the threshold requirement of involving a common question of law or fact. If that
threshold requirement is met, then whether to grant the motion becomes an issue of
judicial discretion.In re Settoon Towing LLC, No. 071263, 2008 WL 594556, at *1
(E.D.La. Feb.28, 2008).
COMMON QUESTIONS OF FACT
5. All three cases allege the Plaintiffs are either married in other States1or attempted
1See Ex. DDeLeonPlaintiffs Original Complaint, Dkt.#1 18; and Ex. C ZahrnPlaintiffs Original
Complaint, Dkt.#1 37,58..
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to marry as a same-sex couple in Texas, and had their marriage application denied by the
County Clerk on those grounds.2Spouses of the opposite sexes are allowed to marry.3
6. Allegations of loss of potential federal benefits result from the Plaintiffs inability
to marry as a same-sex couple.4
COMMON QUESTIONS OF LAW
7. 14th
Amendment due process claims asserted.5
8. 42 U.S.C. 1983 claims asserted.6
9. 14th
Amendment equal protection claims asserted.7
10. Injunctive relief sought.
8
11. Declaratory relief sought.9
REASONS TO GRANT CONSOLIDATION
12. First, consolidation will reduce the time and expense of trying the three actions
separately. Since all three cases involve virtually the same State Defendants with
common questions of law and fact, it would be more efficient to try these cases together.
If the cases are not consolidated, many, if not all, of the same witnesses will be called to
testify in the trial of each, resulting in considerable and unnecessary evidentiary
repetition.
13. Second, consolidation will conserve judicial resources. All three cases contain a
2SeeDeLeon Complaint, 30;ZahrnComplaint, 47,59; and McNosky Plaintiffs Second Amended
Complaint, Dkt.#10, 8.3SeeDeLeonComplaint, 1;ZahrnComplaint,69; and seeMcNosky Complaint, 12.
4SeeDeLeonComplaint, 40;ZahrnComplaint, 69; and seeMcNosky Complaint, 13.
5SeeDeLeonComplaint, 52;ZahrnComplaint, 75; and seeMcNosky Complaint, 18.
6See DeLeon Complaint, 60;ZahrnComplaint,89; and see McNosky Complaint, 18.
7SeeDeLeonComplaint, 55;ZahrnComplaint, 75; and seeMcNosky Complaint, 18.
8SeeDeLeonComplaint, Prayer, b;ZahrnComplaint, Prayer, 109;and seeMcNosky Complaint, Prayer
B.9See DeLeon Complaint, Prayer a;ZahrnComplaint, Prayer 111; and see McNosky Complaint, Prayer
A.
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Constitutional challenge to the laws of Texas prohibiting same-sex marriage, and will be
decided under the same federal and State law standards. Proceeding separately would be
a tremendous waste of judicial resources. Consolidation of the cases would conserve
judicial resources by allowing for one hearing on all pending issues instead of three
separate Courts having to contend with the same issues in separate venues.
14. Third, consolidation would be more convenient and cost-effective for the parties,
witnesses, and the Court. All of the written discovery and depositions in these three
actions are going to focus on substantially the same facts and issues. Thus, consolidation
will avoid the unnecessary waste of time and avoidable expense in engaging in
duplicative discovery.
15. Fourth, consolidation will not result in an unfair advantage. By not having to deal
with three separate cases addressing substantially similar issues, there would not be any
unfair advantage for either side of this litigation.
16. Fifth, if the Court does not consolidate these three cases, the separate trial and
administration of these cases could result in inconsistent adjudications of common factual
and legal issues. Because there are common questions of law and fact, these three cases
should be consolidated into one action to avoid the risk that one or more Courts deciding
common questions of law and fact in a way that conflicts with the other Courts.
17. All three cases are just at the beginning stage of litigation, and are ripe for
consolidation. Pedigo v. Rumba,2010 WL 2730463, p. 1 (W.D. Tex, 2010).
CONCLUSION
The requirement of Rule 42(a) for consolidation are met here since there are
common questions of fact and law, and because judicial economy favors consolidation
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for trial and scheduling purposes only.
Respectfully Submitted,
GREG ABBOTTAttorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
DAVID C. MATTAX
Deputy Attorney General for Defense
Litigation
JAMES BEAU ECCLES
Division Chief - General Litigation
s/ William T. Deane
WILLIAM T. DEANETexas Bar No. 05692500
Assistant Attorney General
General Litigation Division
P.O. Box 12548, Capitol StationAustin, Texas 78711-2548
(512) 936-1534
(512) 320-0667 FAX
ATTORNEY FOR DEFENDANTS
GOVERNOR PERRY, ATTORNEY
GENERAL ABBOTT, AND
COMMISSIONER LAKEY
CERTIFICATE OF CONFERENCE
The undersigned attorney hereby certifies that he emailed Plaintiffs in the
McNosky case, called Plaintiffs counsel in the De Leon case, and left a voicemail
message for Plaintiffs counsel in theZahrn case on Friday, November 8, 2013, to conferabout the subject matter of the instant motion. Plaintiffs counsel in all three cases
opposes this motion.
/s/ William T. Deane
WILLIAM T. DEANE
Assistant Attorney General
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing instrument has been sent via certified
mail, return receipt requested on this 12th
day of November 2013,
to:
Christopher Daniel McNosky
5108 Pleasant RunColleyville, Texas 76034
MaryLouise GarciaOffice of Public Records and Civil Courts1895 Courthouse100 W. Weatherford
Fort Worth, TX 76196
Sven Stricker
3047 Bent Tree Ct
Bedford, Texas 76021
Barry A. [email protected]
Daniel McNeel Lane, Jr.
[email protected] Stenger-Castro
300 Convent Street, Suite 1600San Antonio, Texas 78205
Attorneys for Plaintiffs
Jason P. Steed, SBN 24070671
BELL NUNNALLY & MARTIN, LLP
3232 McKinney Ave., Suite 1400Dallas, TX 75204
Phone: (214) 740-1411, Fax: (214) 740-5711
James J. Scheske, SBN 17745443
JAMES J. SCHESKE PLLC
5501-A Balcones #109Austin, TX 78731
Phone: (512) 371-1790, Fax: (512) 323-2260
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S. Leigh Jorgeson, SBN 24070026
(pro hac vice application pending)Ian Pittman, SBN 24064131
(pro hac vice application pending)
JORGESON PITTMAN LLP
4505 Spicewood Springs Road, Suite 335Austin, Texas 78759
Phone: (512) 320-0999, Fax: (512) [email protected]
Attorneys for Plaintiffs
/s/ William T. Deane
WILLIAM T. DEANE
Assistant Attorney General
ATTACHMENTS
Exhibit A ZahrnCivil Docket
Exhibit B De LeonCivil Docket
Exhibit C Zahrn Original Complaint.
Exhibit D De Leon Original Complaint.
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U.S. District Court [LIVE]Western District of Texas (Austin)
CIVIL DOCKET O! CASE "# $#$%&c'&**&SS
Zahrn et al v. Perry et al
Assigned to: Judge Sam SparksCause: 42:19! Civil "ights A#t
$ate %iled: 1&'!1'2&1!
Jury $emand: (one(ature o) Suit: 9*& Constitutional +State Statute
Jurisdi#tion: %ederal ,uestion
+,aintiff
S-annon a-rn represented -y Ian E. +itt/an
Jorgeson Pittman //P4*&* Spi#e0ood Springs "oad
Suite !!*Austin 33*9
*12.!2&.&999%a: *12.!2&.&&2*LEAD ATTORNEYATTORNEY TO BE NOTICED
0a/es 0. Sc-es1e
James J. S#heske P//C**&1+A 5al#ones 61&9Austin 33!1
7*128 !31+139&%a: *12'!2!+22&
mail: ;s#heske
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%a: 214+34&+1499
mail: ;asons'C% /@ + B.S. $istri#t Court:t0d
11'3'2&1!https:''e#).t0d.us#ourts.gov'#gi+-in'$kt"pt.pl199*9!3212199!+/D1D&+1
EXHIBIT A
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James J. Scheske(See above for address)LEAD ATTORNEY
ATTORNEY TO BE NOTICED
S. Leigh Jorgeson
(See above for address)LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jason P. Steed(See above for address)ATTORNEY TO BE NOTICED
V.
Defendant
Rick Perryin his official caacity as !overnor of
Te"as
Defendant
Greg Abbott
in his official caacity as Attorney!eneral of Te"as
Defendant
Dana DeBeauvoirin her official caacity as County Cler#
of Travis County$ Te"as
Date Fied ! Docket "e#t
10/31/2013 1 COMPLAINTfor Declaratory and In%unctive Relief( Fii!" fee # $00 re%ei&'
!ber 0*$2+*,-0**3) fied b Sa!!o! ar! A!dre Si&so! AeisA"s'i!e Ca'eri!e ar!. (A''a%e!'s4 5 1Civi Cover See')(S'eed
6aso!) (7!'ered4 10/31/2013)
10/31/2013 2 NOTIC7 of Constitutional &uestionsb Aeis A"s'i!e A!dre Si&so!Ca'eri!e ar! Sa!!o! ar! re 1Co&ai!' (S'eed 6aso!) (7!'ered410/31/2013)
10/31/2013 3 879:7ST FO8 ISS:ANC7 OF S:MMONS b Aeis A"s'i!e A!dre
Si&so! Ca'eri!e ar! Sa!!o! ar!. (S'eed 6aso!) (7!'ered410/31/2013)
10/31/2013 Case Assi"!ed 'o 6d"e Sa S&ar;s. CM ?7 INITIALS (SS) AS PA8T OF T=7 CAS7 N:M@784 1413+%v+,**+
Pa"e 3 of $CM/7CF LIV7 + :.S. >is'ri%' Cor'4'd
11//2013''&s4//e%f.'d.s%or's."ov/%"i+bi!/>;'8&'.&B-1,,*,32121,,3+L10+1
EXHIBIT A
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SS. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER
ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (kkc) (Entered!"#$!#%"!$)
!"#$!#%"!$ & S'n* I**'ed +* t Gre, A--tt D+n+ DeBe+'/0r R0ck Perr1. (kkc)(Entered !"#$!#%"!$)
!"#$!#%"!$ 2 MOTION t A33e+r Pr H+c 40ce -1 I+n E. P0tt+n ( F050n, 6ee 7 %8 rece03t
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!!#"!#%"!$ 8 CERTIFICATE OF SER4ICE -1 A5e;0'* A','*t0ne Andre< S03*nC+t=er0ne >+=rn S=+nnn >+=rnAmended Certificate of 'ervice %Nt0ce
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U.S. District Court [LIVE]Western District of Texas (San Antonio)
CIVIL DOCKET O! CASE "# $#%&'c'*+,'OL-
DeLeon et al v. Perry et al
Assigned to: Judge Orlando L. GarciaCause: 42:198 Civil !ig"ts Act
Date #iled: 1$%28%2$1
Jury De&and: 'one'ature o( )uit: 44$ Civil !ig"ts: Ot"erJurisdiction: #ederal *uestion
/aintiff
C/eo0atra DeLeon re+resented ,y 1arr2 A. C3asnoffA-in Gu&+ )trauss auer / #eld0 LLP.
$$ Convent )treet0 )uite 1$$)an Antonio0 3 82$5
621$7 281$$1#a: 21$%2242$5
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L.L.P.15$$ 'ations
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6)ee a,ove (or address7
ATTORNEY TO BE NOTICED
Frank Stenger-Castro
6)ee a,ove (or address7ATTORNEY TO BE NOTICED
Plaintiff
Victor Holmes re+resented ,y Barry A. Chasnoff6)ee a,ove (or address7
LEAD ATTORNEYATTORNEY TO BE NOTICED
Daniel McNeel Lane !r.6)ee a,ove (or address7
ATTORNEY TO BE NOTICED
Frank Stenger-Castro6)ee a,ove (or address7ATTORNEY TO BE NOTICED
Plaintiff
Mark Phariss re+resented ,y Barry A. Chasnoff6)ee a,ove (or address7
LEAD ATTORNEYATTORNEY TO BE NOTICED
Daniel McNeel Lane !r.6)ee a,ove (or address7
ATTORNEY TO BE NOTICED
Frank Stenger-Castro6)ee a,ove (or address7ATTORNEY TO BE NOTICED
?.
Defen"ant
#ick Perry
in his official capacity as Govenor ofthe State of Texas
Defen"ant
$reg A%%ott
in his official capacity as TexasAttorney General
Defen"ant
Page 2 o( 4C=%C# L>? @.). District Court:td
11%%2$1"tt+s:%%ec(.td.uscourts.gov%cgi,in%D-t!+t.+lB291982$1$522L1$1
EXHIBIT B
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$erar" #ickhoff
in his official capacity as Bexar ContyCler!
Defen"ant
Da&i" Lakeyin his official capacity as Co""issioner
of the Texas Depart"ent of State #ealthServices
Date File" ' Docket (e)t
10/28/2013 1 COMPLAINT$or Declaratory an% In&nctive Relief( Filing fee $ 400 receiptnu!er 0"42#"%004&' N) *u)n+ re,ue+te- .t ti+ tie file- ! M.rP.ri++ Cle)p.tr. eLe)n ict)r 5)le+ Nic)le iet.n (Att.cent+6 7
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EXHIBIT B
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as Co""issioner of the Texas Depart"ent of State #ealth Services(C.+n)ff
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EXHIBIT B
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Case 1:13-cv-00955-SS Document 1 Filed 10/31/13 Page 1 of 26
EXHIBIT C
Case 1:13-cv-00631-SS Document 17-3 Filed 11/12/13 Page 1 of 26
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sex couples, in the Defense of Marriage Act (DOMA), violated the principles of
due process and equal protection under the Fifth Amendment, because its
purpose was to impose inequality on individuals who are homosexual. United
States v. Windsor, 570 U.S. ---, 133 S. Ct. 2675, 2694 (June 26, 2013).
2. In striking down the federal ban on same-sex marriage in Windsor, theSupreme Courtalso went out of its way to note that the Fourteenth
Amendment, which protects an individuals rights of due process and equal
protection against state action, makes these rights all the more specific and
all the better understood and preserved. 133 S. Ct. at 2695. Thus, the logic of
Windsoris as follows: just as DOMAs denial of marriage to same-sex couples
was unconstitutional under the Fifth Amendment, a states denial of marriage
to same-sex couples is unconstitutional under the Fourteenth Amendment.
3. At least fourteen states, plus the District of Columbia, currently providemarriage equality to individuals who are homosexual. And more states, such
as Hawaii and Oregon, are moving in that direction.
4. Meanwhile, lawsuits seeking to enforce marriage rightsrelying in parton Windsorare now pending in other states, including Arizona, Arkansas,
Illinois, Kentucky, Louisiana, Nevada, North Carolina, Oklahoma,
Pennsylvania, South Carolina, Tennessee, Utah, Virginia, and West Virginia.
5. And courts in Michigan, New Jersey, New Mexico, and Ohio havealready relied in part on Windsorto rule against state laws that refuse to
recognize same-sex marriages.
6. The State of Texas, through Article I, section 32 of the TexasConstitution and sections 2.001 and 6.204 of the Texas Family Code, imposes
inequality on gays and lesbians in exactly the same way that DOMA didby
Case 1:13-cv-00955-SS Document 1 Filed 10/31/13 Page 2 of 26
EXHIBIT C
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denying them the basic right to marry.
7. Plaintiffs therefore ask this Court, pursuant to 42 U.S.C. 1983, toprotect and enforce their rights and the rights of the Plaintiff Class under the
United States Constitution, by declaring Article I, section 32 and sections
2.001 and 6.204 unconstitutional, and by enjoining permanently the
enforcement of these and any other provisions of Texas law that would seek to
deny same-sex couples equal access to civil marriage in Texas.
Jurisdiction and Venue
8. Plaintiffs bring this action on behalf of themselves and the PlaintiffClass under 42 U.S.C. 1983 and the Constitution of the United States;
therefore, this Court has subject-matter jurisdiction pursuant to 28 U.S.C.
1331.
9. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b) becauseall Defendants reside in this district, and because a substantial part of theevents giving rise to the claim occurred in this district.
10. This Court has authority to enter a declaratory judgment and to provideinjunctive relief pursuant to Federal Rules of Civil Procedure 57 and 65, and to
28 U.S.C. 2201 and 2202.
11. This Court has personal jurisdiction over Defendants because they aredomiciled in the State of Texas.
The Parties
12. Plaintiff Shannon Zahrn is a Texas resident in Travis County, Texas.
Case 1:13-cv-00955-SS Document 1 Filed 10/31/13 Page 3 of 26
EXHIBIT C
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13. Plaintiff Catherine Zahrn is a Texas resident in Travis County, Texas.14. Plaintiff Alexius Augustine is a Texas resident in Travis County, Texas.15. Plaintiff Andrew Simpson is a Texas resident in Travis County, Texas.16. Defendant Rick Perry is the Governor of the State of Texas. In hisofficial capacity he is the chief executive officer of the State of Texas. The
Governors office is located in the Austin Division of this Judicial District.
17. Defendant Greg Abbott is the Attorney General of the State of Texas. Inhis official capacity he is the chief legal officer of the State of Texas, and it is
his duty to see that the States laws are uniformly and adequately enforced.
The Attorney Generals office is located in the Austin Division of this Judicial
District.
18. Defendant Dana DeBeauvoir is the County Clerk of Travis County,Texas. In her official capacity she is responsible for maintaining marriage
records, issuing marriage licenses, and performing civil marriages. The County
Clerks office is located in the Austin Division of this Judicial District.
19. Defendants and those subject to their supervision, direction, and controlare responsible for the enforcement of sections 2.001 and 6.204 of the Texas
Family Code and Article I, section 32 of the Texas Constitution, and any other
Texas law that denies same-sex couples the right to civil marriage in Texas.
The relief requested in this action is sought against each Defendant as well as
against each Defendants officers, employees, and agents, and against all
persons acting in cooperation with Defendant(s), under their supervision, at
their direction, or under their control.
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Facts
20. Individuals who are homosexual have suffered a long history ofdiscrimination and unequal treatment in the United States and in Texas.
21. Laws against homosexual sex, for example, date back to before thenation was founded. Texas passed its first codified anti-sodomy law in 1860
(imposing a penalty of up to 15 years in prison), and updated its law to single
out homosexual sex for criminalization in 1973. In some states, homosexual
sex was at one time punishable by death.
22. More recently, in 1992, the voters in the State of Colorado amendedtheir state constitution topreventcities and municipalities from outlawing
discrimination against homosexuals. In other words, the amendment was
designed to enable discrimination against gays and lesbians, in contexts such
as housing, employment, education, health services, and public
accommodations.
23. In 1996, the federal government enacted the Defense of Marriage Act(DOMA), codifying a federal ban against same-sex marriage. Section 3 of
DOMA stated that, for the purposes of federal law, the word marriage
means only a legal union between one man and one woman as husband and
wife, and the word spouse refers only to a person of the opposite sex who is a
husband or a wife. 1 U.S.C. 7. And section 2 of DOMA says that no state
shall be required to give effect to same-sex marriages created in other states.
1 U.S.C. 1738C.
24. One year after DOMA was enacted, in 1997, the State of Texas enactedits own laws against same-sex marriage, adding section 2.001 to the Texas
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Family Code, which states: A license may not be issued for the marriage of
persons of the same sex. Tex. Fam. Code 2.001(b).
25.
In 2003, Texas added its own version of DOMA, in section 6.204 of the
Family Code, which states: A marriage between persons of the same sex . . . is
contrary to the public policy of this state and is void in this state. The state or
an agency or political subdivision of the state may not give effect to a public
act, record, or judicial proceeding that creates, recognizes, or validates a
marriage between persons of the same sex . . . in this state or in any other
jurisdiction. Tex. Fam. Code 6.204(b)(c).
26. And in 2005, for added measure, the Texas Constitution was amendedto declare: Marriage in this state shall consist only of the union of one man
and one woman. Tex. Const. art. I, 32(a).
27. But these various efforts to impose inequality on individuals who arehomosexual have not gone unanswered.
28.
The United States Supreme Court struck down the voter-approved
Colorado constitutional amendment that enabled widespread discrimination
against homosexuals, because the Court found it was motivated by animus
and held that a bare desire to harm a politically unpopular group cannot
constitute a legitimate governmental interest. The Court therefore
determined that the Colorado law could not survive even the most deferential
review under the Fourteenth Amendments Equal Protection Clause. Romer v.
Evans, 517 U.S. 620, 632634 (1996) (internal quotations omitted).
29. Just a few years later, the Supreme Court struck down the Texas lawsthat criminalized adult, consensual, homosexual sex because, according to the
Court, the Fourteenth Amendments Due Process Clause gives substantial
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protection to adult persons in deciding how to conduct their private lives in
matters pertaining to sex. Lawrence v. Texas, 539 U.S. 558, 572 (2003). In
fact,the Court declared that the Due Process Clause broadly protects the
autonomy of the person, including personal decisions relating to marriage,
procreation, contraception, family relationships, child rearing, and education.
Id. at 573574 (citingPlanned Parenthood of Southeastern Pa. v. Casey, 505
U.S. 833, 851 (1992)) (emphasis added). Lawrencestemmed from the criminal
prosecution of two gay men in Houston who had been arrested in their
bedroom.
30. And this past summer, the Supreme Court determined that the federalgovernments restriction of marriage to only opposite-sex couples, through
DOMA, waslike the Colorado lawmotivated by animus, and that its
principal purpose was to impose inequality on same-sex couples. Citing
both Romerand Lawrence, the Court declared that DOMAs restrictive
definition of marriage as only a legal union between one man and one woman
violated the principles of due process and equal protection, and was therefore
unconstitutional. Windsor, 133 S. Ct. at 26952696.
31. In the face of these rulings, the State of Texas continues to discriminateagainst gays and lesbians by doing exactly what the federal government
sought to do through DOMAnamely, to deny same-sex couples equal access
to the rights, benefits, and protections of civil marriage.
32. Sections 2.001 and 6.204 of the Texas Family Code were inspired byDOMAs passage in 1996. In fact, section 6.204 is likewise titled the Defense
of Marriage Act, and the official website for the Office of the Governor
Defendant Perrys officestates explicitly that section 6.204 mirrors the
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federal DOMA.
33. Moreover, the text of Article I, section 32 of the Texas Constitution,which restricts marriage to only the union of one man and one woman,
mimics the very text in section 3 of DOMA that was stricken as
unconstitutional by the Supreme Court in Windsor.
34. These laws discriminate against same-sex couples on their face, and theState of Texas has even judicially admitted, in other proceedings, that the
purpose of these laws is to favor opposite-sex couples. This is merely the
inverse of saying that the purpose of these laws is to single out homosexuals
for disfavored treatment. Or, in other words, the purpose of these Texas laws
is to impose inequality. Cf. Windsor, 133 S. Ct. at 2694.
Shannon & Catherine
35. Plaintiffs Shannon Zahrn and Catherine Zahrn have suffered harm as aresult of the States enforcement of Texas law.
36. Shannon and Catherine have known each other for nearly twenty years.They first met and became friends while at school in Virginia, in 1995, and
they reconnected and started dating while living in Georgia, in 2002.
37. In 2005 the couple wanted to get married, but state laws denied themthe right to do so. To nevertheless demonstrate their love for and commitment
to one another, they invited friends and family to a commitment ceremony,
which they performed on September 17, in South Carolina. They have
celebrated that date every year since then, as their anniversary.
38. That same year, Shannon also legally changed her last name to match
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Catherines, to outwardly demonstrate her commitment to the relationship.
39. In 2006, the couple moved to Austin, Texas, for Shannons job.40. Catherine gave birth to a baby girl in 2011. Shannon legally adopted thechild as a second parent a few months later, and the Zahrns legally became a
family. But they still could not legally get married.
41. Shannons sister became very ill, and passed away in December, 2011.Shannons father also passed away shortly thereafter, in April, 2012.
42. As a result, Shannons niece came to live with Shannon and Catherinein 2012, because they could provide her with a stable and loving home
environment. Shannon and Catherine became legal conservators of Shannons
niece in 2013.
43. In short, Shannon and Catherine have been together for over ten yearsand are the loving parents of two children.
44. The Zahrns are like any other typical Texan family, and deserve thesame rights, privileges, protections, and responsibilities enjoyed by other
Texan families. They own and share a home together; they have joint bank
accounts; they are parents and have children together. They have a life
together. They love each other. Like thousands of other similarly situated
couples in Texas and the United States, they desire to formalize their
relationship through civil marriage.
45. Shannon and Catherine wanted to get married nearly eight years ago,on September 17, 2005, but state laws deprived them of that right. They have
wanted to get married since moving to Texas in 2006, but Texas state law has
prevented them from doing so.
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46. On July 12, 2013two weeks after the Supreme Court declared thatDOMAs restriction of marriage to only opposite-sex couples was
unconstitutionalShannon and Catherine went to the Travis County Clerk's
Office at 5501 Airport Blvd., Austin, Texas, to apply for a marriage license.
47. But the couple was not permitted to even apply for a Texas marriagelicense. Instead, when they asked for an application they were given the
runaround, told they were a special case, and then made to wait for a
manager to assist them. The manager then gave Shannon and Catherine a
printed copy of section 2.001 of the Family Code (stating A license may not be
issued for the marriage of persons of the same sex.), and told them that she
was not allowed even to give them an application for a license. When asked,
the manager also said that, for opposite-sex couples, the application can be
completed onsite, and the license can be issued immediately.
48. Shannon and Catherines inability to have their relationship formalizedby the State, and recognized legally with the same dignity and respect
accorded to married opposite-sex couples, has caused them significant
hardshipincluding but not limited to the deprivation of rights guaranteed by
the Fourteenth Amendment, and stigma.
49. Shannon and Catherine have wanted to marry for as long as they havelived in Texas (over seven years), and each day that they are denied the
freedom to marry they suffer irreparable harm as a direct result of Defendants
enforcement of Texas state law.
50. If sections 2.001 and 6.204 of the Texas Family Code, and article I,section 32 of the Texas Constitutionand all other Texas laws that prevent or
prohibit same-sex marriage in Texasare not enjoined, Defendants will
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continue to enforce them and thereby continue to deprive Shannon and
Catherine, and others who are similarly situated, of their constitutional rights.
51.
For these reasons, Shannon and Catherine, as Plaintiffs, bring this
action on behalf of themselves and others similarly situated.
Alex & Andy
52. Plaintiffs Alexius Augustine and Andrew Simpson have suffered harmas a result of the States enforcement of Texas law.
53. Alex and Andy have known each other for ten years. They first met in2003, when Alex was a university student in Malaysia and Andy was working
for a computer company. They hit it off, Alex legally immigrated to the United
States, and the couple bought a house together in Austin. They have been
living together since January 2004.
54. In 2005 the couple wanted to get married, but Texas law denied themthe right to do so. To demonstrate their commitment to each other, that year
they executed wills and estate-planning documents together, naming each
other as beneficiaries.
55. In 2006 Alex graduated with a degree in International Relations fromSt. Edwards University. He later earned a masters degree in Global Issues,
and he works as a student admissions advisor and program coordinator. Andy
holds an MBA from St. Edwards and continues to work in the computer
industry.
56. The couple has had joint bank accounts since 2004. They officiallyproposed to each other in 2012. And they have discussed having children and
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plan to adopt in the near future.
57. In short, Alex and Andy have been together for ten years and are deeplycommitted to each other. They are like any other typical American couple, and
they deserve the same rights, privileges, protections, and responsibilities
enjoyed by other American couples. They have a life together. They love each
other. Like thousands of other similarly situated couples in Texas and the
United States, they wanted to formalize their relationship through civil
marriage. So they did.
58. A few weeks after the U.S. Supreme Court issued its decision inWindsor, Alex and Andy traveled to York, Maine, where they were legally
married by a judge, on a mountainside, on July 17, 2013.
59. But Texas law, on its face, refuses to recognize the validity of a same-sexmarriage legally created in another state. Tex. Fam. Code 6.204. And State
officials, including Defendant Greg Abbott, have officially declared (and
judicially admitted) that the State will not give effect to Alex and Andys
marriage. In other words, though Alex and Andy have formalized their
relationship by legally marrying under the laws of another state, the State of
Texas seeks to deprive them of their marital statusand of their right to be
married.
60. The States refusal to recognize Alex and Andys marriageandparticularly its refusal to accord their legal out-of-state marriage with the
same dignity and respect accorded to opposite-sex couples who are legally
married in another state, constitutes a harm and a hardship to Alex and Andy,
which includes but is not limited to the deprivation of their rights guaranteed
by the U.S. Constitution, and stigma.
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61. The States refusal to recognize the validity of Alex and Andys out-of-state marriage also harms them by denying them the rights, benefits, and
protections associated with marriage, such as hospital visitation rights, the
right to make medical decisions for ones spouse, spousal survivorship rights,
the right not to testify against ones spouse, the right to loss-of-consortium
damages in civil lawsuits, and so on.
62. Alex and Andy have wanted to be married for almost as long as theyhave lived in Texas (roughly nine years). They celebrated their marriage in
Maine just a few months agobut the State of Texas refuses to recognize its
validity or to give effect to that marriage. And each day that they are
deprived of their right to be recognized as legally married they suffer
irreparable harm as a direct result of Defendants enforcement of Texas law.
63. If sections 2.001 and 6.204 of the Texas Family Code, and article I,section 32 of the Texas Constitutionand all other Texas laws that prevent or
prohibit the recognition of same-sex marriages legally created in other states
are not enjoined, Defendants will continue to enforce them and thereby
continue to deprive Alex and Andy, and others who are similarly situated, of
their constitutional rights.
64. For these reasons, Alex and Andy, as Plaintiffs, bring this action onbehalf of themselves and others similarly situated.
The Plaintiff Class
65. The Plaintiff Class consists of all individuals who, like Shannon andCatherine, reside in the State of Texas and otherwise meet the legal
requirements to marry in Texas, but wish to marry someone of the same sex,
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and for that reason are denied the right to marry by Texas law. The Plaintiff
Class also includes all individuals who, like Alex and Andy, reside in the State
of Texas and have been legally married under the laws of another state, but to
someone of the same sex, and whose marriage for that reason is not recognized
as valid under Texas law.
66. The declaratory and injunctive relief sought by the Named Plaintiffs, onbehalf of themselves and of the Plaintiff Class, will remedy their harm as
follows:
(1) by requiring county clerks in Texas, such as Defendant DeBeauvoir,
to issue a marriage license to Plaintiffs Shannon Zahrn and Catherine
Zahrn (and to others similarly situated), so that they can be legally
married under Texas law; and
(2) by requiring Defendants Perry and Abbott, in their official capacities
as Governor and Attorney General of Texas, respectively, to recognize
the out-of-state marriage of Alex and Andy (and of others similarly
situated), as legally valid in Texas.
By the relief sought, the Named Plaintiffs and the Plaintiff Class will
become equally privy to all the rights, benefits, and protections of civil
marriage in Texas.
Claim One: Equal Protection
67. Plaintiffs incorporate by reference paragraphs 166, above, as if fully setforth herein.
68. The Equal Protection Clause of the Fourteenth Amendment requires
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consideration of whether the classifications drawn by a state law constitute
an arbitrary and invidious discrimination. Loving, 388 U.S. at 10. A state
law that singles out individuals who are homosexual for disfavored treatment,
and imposes on them inequality, violates the principle of equal protection
under the law. Windsor, 133 S. Ct. at 26942696.
69. Sections 2.001 and 6.204, and article I, section 32, restrict access to civilmarriage to only opposite-sex couples, thereby denying individuals who are
homosexual the right and freedom to marry the person of their choosing. These
laws treat similarly situated persons differentlyor, in other words, they
impose inequalityby providing the status, dignity, rights, benefits, and
protections of civil marriage to heterosexual couples but not to homosexual
couples. Put another way, these Texas laws single out individuals who are
homosexual for disfavored treatment.
70. Defendants and other state officials have openly expressed the animusheld toward homosexuals that motivates these laws. In a 2011 campaign ad,
Defendant Perry, speaking as the Governor of Texas while running for the
GOP presidential nomination, said somethings wrong in this country when
gays can serve openly in the military. Perry, who signed section 6.204 into
law, has repeatedly stated that he believes God disapproves of same-sex
relationships. And at a rally held earlier this yearon the same day that oral
arguments were heard in WindsorPerry said he found the push for equal
marriage rights unsettling.
71. On the day that Windsor was decided, Todd Staplesa state legislatorand co-author of article I, section 32 (the Texas Marriage Amendment)
criticized the Supreme Courts recognition of marriage equality as the
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definition of absurdity.
72. And perhaps most notably, Defendant Abbott has, as Texas AttorneyGeneral, judicially admitted that the unequal treatment of same-sex couples is
precisely the point of these Texas laws against same-sex marriage.
73. Sections 2.001 and 6.204 of the Texas Family Code and article I, section32 of the Texas Constitution, both on their face and as applied to Plaintiffs and
the Plaintiff Class, single out individuals who are homosexual for disfavored
treatment, stigmatizing them as second class and denying them the same
status, dignity, rights, benefits, and protections of marriage that are provided
by law to individuals who are heterosexual. Therefore, these Texas laws
violate the Equal Protection Clause of the Fourteenth Amendment.
Claim Two: Due Process
74. Plaintiffs incorporate by reference paragraphs 173, above, as if fully setforth herein.
75. The Due Process Clause of the Fourteenth Amendment protectsindividuals against the deprivation of their rights or liberty without due
process of law. Marriage is one of the basic civil rights of man, fundamental
to our very existence and survival. To deny this fundamental freedom . . . is
surely to deprive all the States citizens of liberty without the due process of
law. Loving, 388 U.S. at 12.
76. Sections 2.001 and 6.204 of the Texas Family Code and article I, section32 of the Texas Constitution, both on their face and as applied to Plaintiffs,
deprive individuals who are homosexual of their freedom to marryor, if they
have already married in another state, deprive them of their rightful legally-
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married status. Therefore, these Texas laws violate the Due Process Clause of
the Fourteenth Amendment.
Claim Three: Right to Travel
77. Plaintiffs incorporate by reference paragraphs 176, above, as if fully setforth herein.
78. The right and freedom to enter and abide in any State in the Unionhas been recognized as a basic right under the Constitution.Attorney
General of New York v. Soto-Lopez, 476 U.S. 898, 901902 (1986). When a
state law serves to penalize individuals for their migration to that state, that
law impinges on the right to travel. Id.at 903.
79. Section 6.204 of the Texas Family Code and article I, section 32 of theTexas Constitution, both on their face and as applied to Plaintiffs Augustine
and Simpson, and to the Plaintiff Class, refuse to recognize the validity of a
same-sex marriage that was legally entered into in another state. Or, in otherwords, these laws serve to penalize same-sex couples who are legally married
in another state and then migrate to Texas, by depriving them of their legally-
married status. Therefore, these Texas laws violate the constitutional right to
travel.
Claim Four: Full Faith and Credit
80. Plaintiffs incorporate by reference paragraphs 179, above, as if fully setforth herein.
81. The U.S. Constitution states: Full faith and credit shall be given ineach state to the public acts, records, and judicial proceedings of every other
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state. U.S. Const. art. IV, 1. Thus, just as Texas gives full faith and credit to
the legal out-of-state marriage of an opposite-sex couple, it mustunder the
Full Faith and Credit Clausegive full faith and credit to the legal out-of-
state marriage of a same-sex couple.
82. But section 6.204 of the Texas Family Code and article I, section 32 ofthe Texas Constitution, both on their face and as applied to Plaintiffs
Augustine and Simpson, and to the Plaintiff Class, refuse to recognize the
validity of same-sex marriages that are legally created in another state.
Therefore, these Texas laws violate the Full Faith and Credit Clause.
83. Article IV does provide that Congress may by general laws prescribethe manner in which [the public acts of other states] shall be proved, and the
effect thereof. U.S. Const. art. IV, 1. And section 2 of DOMA exploits this
provision to declare that [n]o state . . . shall be required to give effect to any
public act by another state that creates a same-sex marriage. 28 U.S.C.
1738C.
84. But it is a fundamental principle of American law that a statute cannotundo, overrule, or otherwise supersede a constitutional provision. If a statute
and a constitutional provision are in conflict, the statute must bow to the
supremacy of the Constitution.
85. Article IV requires each state to give full faith and credit to the publicacts of another state. And Article IV also permits Congress to prescribe the
mannerin which such Acts . . . shall be proved, and the Effect thereof. But
Article IV does notallow Congress to simply undo the Full Faith and Credit
Clause altogether.
86. Therefore, to the extent section 2 of DOMA purports to wholly
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circumvent or supersede the Full Faith and Credit Clause, by authorizing
states to give noeffect to same-sex marriages created by another state,
section 2 of DOMA exceeds the power granted to Congress under Article IV,
and is therefore unconstitutional.
87. In short, the Texas laws refusing to give effect to out-of-state same-sexmarriages violate the Full Faith and Credit Clauseand these state laws
cannot seek cover under section 2 of DOMA, because section 2 of DOMA is
itself an unconstitutional overreach of congressional authority.
Claim Five: Violation of 42 U.S.C. 1983
88. Plaintiffs incorporate by reference paragraphs 187, above, as if fully setforth herein.
89. By enforcing sections 2.001 and 6.204 of the Texas Family Code andarticle I, section 32 of the Texas Constitution to deny Plaintiffs equal access to
civil marriage in Texas, or to refuse to recognize the validity of Plaintiffs civilmarriage from another state, Defendants, under color of Texas state law, are
depriving and will continue to deprive Plaintiffs and the Plaintiff Class of
rights secured by the U.S. Constitution. This violates 42 U.S.C. 1983.
Irreparable Injury
90. Plaintiffs incorporate by reference paragraphs 189, above, as if fully setforth herein.
91. Because Defendants have been and are currently enforcing sections2.001 and 6.204 of the Texas Family Code and article I, section 32 of the Texas
Constitution to the detriment of Plaintiffs and the Plaintiff Class, an actual
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and judicially cognizable controversy exists between Plaintiffs and Defendants,
over whether these provisions of Texas law are unconstitutional.
92.
Plaintiffs and the Plaintiff Class have been and are now severely and
irreparably injured by sections 2.001 and 6.204 of the Texas Family Code, and
by article I, section 32 of the Texas Constitution. This injury includes, but is
not limited to, the deprivation of rights guaranteed by the U.S. Constitution
and stigma caused by the States refusal to allow Plaintiffs and each member
of the Plaintiff Class to marry the person he or she loves, or by the States
refusal to recognize the validity of same-sex marriages created in other states.
Marriage is a highly valued legal and social status, and married couples are
often treated differently from unmarried couples. Being married reflects and
expresses a couples commitment to one anotherit represents the significance
and value that the couple (and society) has placed on or invested in the
relationship. By denying Plaintiffs and each member of the Plaintiff Class the
right to marry in Texas, or to have their out-of-state marriage recognized in
Texas, the State publicly and officially devalues each Plaintiffs respective
relationship. By the operation and enforcement of the laws at issue, Plaintiffs
and the members of the Plaintiff Class are denied access to the same status,
respect, and dignity, and to the same rights, benefits, and protections that are
provided to opposite-sex couples.
93. Moreover, this public and official devaluing of same-sex relationshipssends a public and official message to the children of same-sex couples, telling
them their parents are in a relationship that is less worthy than the
relationships of others. Cf. Windsor, 133 S. Ct. at 2696. Put another way, the
States legal differentiation between opposite-sex relationships and same-sex
relationships, and its provision of marriage to one and not the other,
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demeans same-sex relationships and thereby humiliates the children of the
Named Plaintiffs and of the members of the Plaintiff Class. Cf. id.at 2694.
94.
By denying Plaintiffs and the Plaintiff Class the right to marry, or to
have their marriage recognized, the State also denies Plaintiffs and the
Plaintiff Class access to numerous state-law benefits and protections. For
example, Plaintiffs cannot claim intestacy rights, see Tex. Probate Code 38,
45; a Plaintiff cannot file a wrongful death suit if his or her partner is killed,
see Tex. Prac. & Rem. Code 71.004; Plaintiffs cannot claim the spousal
privilege to avoid testifying against one another, seeTex. R. Evid. 504; and a
Plaintiff cannot, without a written agreement, make health care or burial
decisions pertaining to the care of his or her partner.
95. Furthermore, Plaintiffs Augustine and Simpson, and members of thePlaintiff Class, are irreparably injured by section 2 of DOMA, to the extent
that it authorizes the State of Texas to refuse to recognize or give effect to a
same-sex marriage legally created in another stateand to thereby stigmatize
Plaintiffs and deny them equal status and equal access to the benefits and
protections listed above.
96. In short, Defendants enforcement of the laws at issue has caused andcontinues to cause Plaintiffs and the Plaintiff Class irreparable harm, by
denying them their constitutional rights, by stigmatizing them, by humiliating
their children, and by denying them access to numerous state-law benefits and
protections.
97. These injuries can be redressed only if this Court(1) declares unconstitutional sections 2.001 and 6.204 of the Texas
Family Code and article I, section 32 of the Texas Constitutionand
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any other Texas law that bars or refuses to recognize same-sex
marriage; and
(2) enjoins Defendants in their official capacities from enforcing these
laws.
Class Allegations
98. Plaintiffs incorporate by reference paragraphs 197, above, as if fully setforth herein.
99. Plaintiffs Shannon Zahrn, Catherine Zahrn, Alex Augustine, and AndySimpson bring this action on behalf of themselves and, pursuant to Federal
Rule of Civil Procedure 23, all others who are similarly situated.
100. The Plaintiff Class, as proposed, consists of(a) all individuals who, like Shannon and Catherine, reside in the State
of Texas and otherwise meet the legal requirements to marry in Texas,
but wish to marry someone of the same sex, and for that reason are
denied the right to marry by Texas law; and
(b) all individuals who, like Alex and Andy, reside in the State of Texas
and have been legally married under the laws of another state, but to
someone of the same sex, and whose marriage for that reason is not
recognized as valid under Texas law.
101. The Class is so numerous that joinder of all members is impracticable.According to one study, based on the 2010 U.S. Census, there are 46,401 same-
sex couples residing in Texas. An estimated 6,000 of those couples have been
legally married in another state. And upon information and belief many of the
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remaining Texas couples would marry here in Texas, if Texas law permitted
them to do so.
102.
There are questions of law and fact common to the members of the
Class. Factually, all members of the Class are either already legally married
under the laws of another state or desire to be married in Texas, but they
cannot get marriedor their out-of-state marriage is not recognizeddue to
Texas law and Defendants enforcement thereof. The legal questions common
to the Class include, but are not limited to, (a) whether Texas laws against
same-sex marriage violate the Equal Protection Clause; (b) whether these laws
violate the Due Process Clause; (c) whether these laws violate the
constitutional right to travel; (d) whether they violate the Full Faith and
Credit Clause; and (e) whether the States deprivation of these rights violates
42 U.S.C. 1983. Defendants are expected to raise common defenses to these
claims.
103. These common questions of law and fact predominate over anyindividual questions that might exist, because there are not likely to be any
individual issues material to Plaintiffs claims.
104. The claims of the Named Plaintiffs are typical of those of the PlaintiffClass, as they all arise from the enforcement of Texas laws against allowing or
recognizing same-sex marriage in Texas.
105. The Named Plaintiffs are capable of fairly and adequately protecting theinterests of the Plaintiff Class because they have no interests antagonistic to
the Class, and because they are represented by counsel experienced in complex
class action litigationand in litigation involving constitutional claims and
same-sex marriage rights in Texas.
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106. This action is maintainable as a class action under Federal Rule of CivilProcedure 23(b)(1) because prosecution of separate actions would create a risk
of inconsistent and varying adjudications, resulting in some Texas couples
having access to marriage or recognition of their out-of-state marriage, and
others not.
107. This action is also maintainable as a class action under Federal Rule ofCivil Procedure 23(b)(2) because Defendants enforcement of Texas law applies
generally to the Class, by precluding all members from marrying or from
having their legal out-of-state marriage recognized in Texas. Thus the
declaratory and injunctive relief sought by Plaintiffs is appropriate as to the
Class as a whole.
Prayer
Wherefore, Plaintiffs pray for judgment as follows:
108.
Plaintiffs respectfully ask this Court to declare that this suit ismaintainable as a class action pursuant to Rule 23.
109. Plaintiffs respectfully ask this Court, pursuant to 28 U.S.C. 2201, toconstrue sections 2.001 and 6.204 of the Texas Family Code and article I,
section 32 of the Texas Constitution, and to enter a declaratory judgment
stating that these lawsand all other Texas laws that bar or that refuse to
recognize or give effect to same-sex marriageviolate the U.S. Constitution
and 42 U.S.C. 1983.
110. Plaintiffs respectfully ask this Court also to construe section 2 ofDOMA, and to enter a declaratory judgment stating that, to the extent
section 2 purports to circumvent or supersede the Full Faith and Credit
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Clauseor to the extent that it purports to permit a state such as Texas to
avoid its obligation to give full faith and credit to a same-sex marriage legally
created by another statesection 2 exceeds the authority granted to Congress
under Article IV, and is therefore unconstitutional.
111. Plaintiffs respectfully ask this Court to enter a preliminary and apermanent injunction enjoining enforcement or application of all Texas laws
that bar same-sex marriage, or that refuse the recognize or give effect to
same-sex marriages legally created in another state.
112. Plaintiffs respectfully ask that the declaratory and injunctive reliefrequested be granted against each Defendant in his or her official capacity;
against each Defendants officers, employees, and agents; and against all
persons acting in concert or participation with any Defendant, or under any
Defendants supervision, direction, or control.
113. Plaintiffs respectfully ask this Court to award to Plaintiffs all costs,expenses, and reasonable attorney fees, pursuant to 42 U.S.C. 1988, as well
as any further relief to which the Court determines Plaintiffs may be justly
entitled.
Dated: 10 / 31 / 2013
By: /s/ Jason P. Steed
Jason P. Steed, SBN 24070671
BELL NUNNALLY &MARTIN,LLP
3232 McKinney Ave., Suite 1400
Dallas, TX 75204
Phone: (214) 740-1411, Fax: (214) 740-5711
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James J. Scheske, SBN 17745443
JAMES J.SCHESKE PLLC
5501-A Balcones #109
Austin, TX 78731
Phone: (512) 371-1790, Fax: (512) 323-2260
S. Leigh Jorgeson, SBN 24070026
(pro hac viceapplication pending)
Ian Pittman, SBN 24064131
(pro hac viceapplication pending)
JORGESON PITTMAN LLP
4505 Spicewood Springs Road, Suite 335
Austin, Texas 78759
Phone: (512) 320-0999, Fax: (512) [email protected]
Attorneys for Plaintiffs
Shannon Zahrn, Catherine Zahrn,
Alexius Augustine, and Andrew Simpson
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IN TIlE UNITFI STATFS I ISTRICT COURTFOR IlL SI [RN DISTRI T O[ I F\
SAN ANTONIO I IVISION
CLEOIATRA l F LEON, NICOLE DIMETMAN, VICTOR HOLMES, and MARKI RISS Plaintiffs, CIVILACTION NOV
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.
lLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY ANI INJUNCTIVERELIEF
Plaintiffs Cleopatra De Leon, Nicole 1 imetrnan, Victor Vie lolmes, and MarkPhariss complain of I efendants and allege:
I. INTRODUCTION 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 Sta te of Texas.Any person has the legal right to marry another person of the opposite se hu t that right isdenied to those citizens who wish to marry another person of the same sex. This unequaltreatment of gay and lesbian citizens is based on longstanding prejudices. and it is repugnant tothe 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 congressionaldesire 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, 413U.S . 528 1973)). The constitutional guarantee of equality also protects against such disparatetreatment when the desire to harm manifests itself in state legislation or state constitutionalprovisions.
2. The freedom to marry has long been recognized as one of the vital personalrights essential to the orderly pursuit of happiness by free men. Loving Virgin ia, 388 U.S . I,12 1967), Numerous Supreme Court cases recognize the important of marriage. It is amongassociational rights this Court has ranked as of basic important in our society, ML.B. S.L.J. 519 U.S. 102, 116 1996); it is a freedom of personal choice that is one of the libertiesprotected by the Due Process Clause of the Fourteenth Amendment Cleveland Rd. o/Edue. vLaFleur. 414 U.S. 632 . 639 1974); and it is the most important relation in life, Zablocki vRedhail 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 rightof marriage, Texas Constitution expressly forbids Texas and its political subdivisions fromcreat[ing] or recogniz[ingj any legal status identical or similar to marriage. Tex. Const., art. 32.
3. This lawsuit is brought by Ibur citizens, each of whom wishes for the State ofTexas to allow and recognize their marriages bu t the State of Texas will notsimply becausePlaintiffs wish to be married to someone of the same sex. Two of the Plaintiffs servedhonorably in our nations armed forces, defending our freedoms. All of the Plaintiffscontribute to our nations 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 benefitsenjoyed by every individual who wishes to marry a person of the opposite sex The State ofTexas has no justification for depriving Plaintiffs of their rights in this way
4 In Texas Plaintiffs cannot legally marry their partner before family friends andsocietya right enjoyed by citizens who wish to marry a person of the opposite sex Andshould they become married in a state that has established marriage equality Texas explicitlyvoids their marriage There is no rational basis much less a compelling government purposefor Texas to deny Plaintiffs the sa me rig ht to marry enjoyed by the majority of societyAccordingly Plaintiffs petition this Court for a declaratory judgment that Article I 32 of theTexas Constitution and corresponding statutes violate the D ue Process and Equal ProtectionClauses of the Fourteenth Amendment to the United States Constitution. Plaintiffs also petitionthis Court for a permanent injunction enjoining Defendants from continuing to deprivePlaintiffs of their right to marry
II. PARTIES5 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 hermarriage or allow her to re marry Plaintiff Dimetman in Texas
6 Plaintiff Nicole Dirnetman is a Texas resident She legally married PlaintiffCleopatra Dc Leon in Massachusetts and she wants the State of Texas to either recognize hermarriage or allow he r to re marry Plaintiff Dc Leon in Texas.
7 Plaintiff Mark Phariss is a Texas resident He wants to marry his long timepartner Plaintiff Vie Holmes in Texas
8 Plaintiff Vie Holmes is a Texas resident He wants to marry his long timepartner Plaintiff Mark Phariss in Texas
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9. Defendants are Texas State officials, and Plaintiffs sue them in their officialcapacities
10. Defendant Riek Perry is the Governor of the State of lexas and Plaintiffs suehim in his official capacity. Plaintiffs will serve Governor Perry pursuant to the Federal Rulesof Civil Procedure.
11. Defendant Greg Abbott is the Attorney General of the State of Texas, andPlaintiffs sue him in his official capacity. Plaintiffs will serve Defendant Abbott pursuant to theFederal Rules of Civil Procedure.
12. Defendant Gerard Rickhoff is the County Clerk of Bexar County, Texas , andPlaintiffs sue him in his official capacity. Plaintiffs will serve Defendant Rickhoff pursuant tothe Federal Rules of Civil Procedure.
13. Defendant David Lakey, M.D. is the commissioner of the Texas Department ofState Health Services which includes the bureau of vital statistics, and Plaintiffs sue him in hisofficial capacity. Plaintiffs will serve Defendant Lakey pursuant to the Federal Rules of CivilProcedure.
III JURISDICTION AND VENUE14. 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 3and 4 . 2201, and 2202.
15. Venue is proper under 28 U.S.C. 1391 because Defendant Rickhoff resides inthis district and all Defendants reside in Texas. Venue is also proper in this Court because asubstantial part of the events giving rise to this claim occurred in this district.
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IV FACTUAL BACKGROUNIA fle Leon and Dinietnian
16 Dc Leon and Dimetman met in 2001 At the time Dirnetman was running herow n business and Dc Leon was working as a statistical analyst while also serving in the TexasAir National Guard Dc Leon is a United States Air Force veteran; she was on active duty forfour years and served six years in the Air National Guard She was honorably discharged afterten years of service
17 Dc Leon and Dimetman started dating in September 2001 They have been in acommitted relationship since then During this t ime they supported one another while Dc Leonapplied to and completed graduate school and while Dimetman applied to and completed lawschool Dimetman is no w an attorney licensed to practice law in the State of Texas Dc Leonand 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 oneanother declaring their love and commitment before family friends and society ecause theylived in Texas they were unable to marry in their home state As a result they incurredsignificant expense and traveled to Boston Massachusetts where they married on September11 2009
19 Dc Leon and Dimetman also wanted a family In 2011 Dc Leon conceived andin 2012 gave birth to C While Dc Leon is Cs biological parent Dimetman adopted C DcL eo n a nd Dimetman incurred significant expenses to ensure that the State of Texas recognizedeach as Cs parent They each dedicate countless hours raising loving nurturing educatingand caring for C
20 Dc Leon and Dimetmans 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 IslandWashington and Vermont.
21. Their marriage is not recognized by the State of ix s22 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 asrequired 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 howeverthe federal government does no t recognize their marriage for all purposes.
B. Holmes and Phariss24. 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 topractice law in Texas. They quickly developed a friendship that blossomed into a datingrelationship On August 9 1997 they went on their first date. They celebrate August 9 as theiranniversary.
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 Holmeswho joined th e A ir Force when he was eighteen began a military program to become aphysicians assistant. After completing the program Holmes became an officer and the AirForce stationed him in San Diego at the Naval Medical Center.
26. Because Phariss continued to live and work in Texas he and Holmes started aneleven year period of extraordinary personal sacrifice to maintain and strengthen theirrelationship despite the distance between them. While Holmes was in San Diego PharissPLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT Page 6105030373
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would travel to see I lolmes every few weeks lol mes was generally unable to leave SanDiego . The Air Force re assigned Holmes to the Keesler Medical Center in BiloxiMississippi. and Holmes and Phariss began commuting every other week sometimes more tosee one another. The Air Force later stationed Holmes at the Air Force base in Little RockArkansas. and he and Phariss were able to see each other nearly every weekend. [loimes lastassignment was at Sheppard Air Force base in Wichita i:alls. exas. During this time. Holmesand Phariss were able to see one another each weekend and on special occasions during theweek.
27 . Holmes honorably served our nation for nearly twenty three years and retired asa Major at the end of 201 0. After eleven years traveling to see one another and maintain andstrengthen their relationship. 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 tIiends and society.30. Texas constitution and statutes prevented Holmes and Phariss from marrying in
Texas. On October 3. 2013 holmes and Phariss applied Ior marriage licenses from the BexarCounty Clerk The County ClerLs office refused to issue a marriage license because they are asame sex couple.
31. If Holmes and Phariss were able to marry the federal government wouldrecognize their marriage pursuant to the United States Supreme Courts decision in Windsor.
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C Texas Denies Same Sex Couples the Right to Marry or to Attain Any of theRights Afforded Married heterosexual Couples.
32 [he lexas Constitution defines marriage as i union oF one man and onewoman. and ii prevents Texas and its political subdivisions from recognizing samesexmarriages. Tex Consi.. art 32 Not only does it prevent samesex couples from marrying.the Texas Constitution expressly lbrhids Texas and its political subdivisions 1mm creat[ing orrecogniz[ing] any legal status identical or similar to marriage. Id
33 Reflecting the Texas Constitution. the Texas Family Code prohibits countyclerks including the Bexar County Clerk from issuing marriage licenses to persons of thesame sex. Tex Family Code Ann 2 1 The Texas Family Code requires the bureau ofvital statistics to prescribe the information required in a marriage license application which islimited to heterosexual couples. id 2 2
34 The Texas Family Code also voids all same sex marriages and all same sex civilunions Id 6 2 4 Texas expressly denies same sex couples from the right or claim to anylegal protection. benefit or responsibility asserted as a result of a marriage between persons ofthe same sex or a civil union. Id Thus th e S ta te of icxas nullifies the rights benefits andresponsibilities that same sex couples married in another jurisdiction would enjoy if they wereheterosexual.
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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 variousstatutes den samesex couples the right to enter into a civil marriage
6 Plaintiffs su lThred and ontinue to sufThr substantial and irreparable harm as aresult ot Texas refusal to recognize or allow samesex marriages These harms include so i lstigma the loss ol federal rights and the loss of state rights
i Plaintiffs suffer social stigma as a result of their inability to marry. 7 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 thanunmarried couples. Being married reflects the commitment that a couple makes to one another.and represents public legal acknowledgment of the value legitimacy depth. and permanenceof the married couples private relationship. Legallyrecognized marriages conler rights andresponsibilities that are no t available to unmarried couples.
38 Texas constitutional and statutory prohibitions against recognizing same-sexmarriages convey the States view that PlainiilYs relationships are of lesser value thanrelationships of heterosexuals and are unworthy of legal recognition and support The Statesrefusal to recognize same-sex marriages is a very public rejection of Plaintiffs most significantrelationship and it harms Plaintiffs any children Plaintiffs have and their families. The reftisalto recognize same-sex marriage also invites and facilitates private discrimination againsthomosexuals and promotes the view that their relationships and families are inferior
39 By prohibiting same-sex couples from marrying. Texas places same-sexcouples in an unstable position. demeans same-sex couples. humiliates tens of thousands ofchildren 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.t 2675,2694-96 2013 . Similarly, by refusing to recognize the validity of same-sexmarriages 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-sexmarriages by tell[ing] those couples. and all the world, that their otherwise valid marriagesare unworthy of [Texas] recognition. fit at 2693-94.
L 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 areavailable to married same-sex couples. See hi at 2683 noting that over 1,000 federal lawsaddress marital or spousal status . These federal rights include, among others, having the samerights as heterosexual married couples in one anothers Social Security benefits, 42 U.S.C. 416, spousal privileges, seeking protections under the Family and Medical Leavect 29U.S.C. 2612, and federal Medicaid benefits.
41. Same-sex couples residing in Texas cannot rely upon an out-of-state marriage toconfer federal protections, benefits, and obligations. Texas same-sex couples who many inanother state must contend with substantial uncertainty regarding whether the marriage will berecognized by the federal government for various purposes. For instance, while the InternalRevenue Service recently adopted a state of celebration rule in recognizing same-sexmarriages, Rev. Ruling 2013-17 Aug. 30,2013 , it is unclear what other federal agencies willfollow. In fact, the Department of Labor recently announced that FMLA will apply only tosame-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 DefendantAbbott advise him what, if any, actions the Texas Military Forces can take to comply with theDepartment ofDefenses policy of extending spousal and dependent benefits to same-sexcouples without violating the Texas Constitution and Texas statutes.
ilL Plaintiffs inability to marry affects numerous state law protectionsbenefits and obligations42. Texas refusal to marry or recognize Plaintiffs marriage also denies Plaintiffs
many state4aw benefits. Plaintiffs cannot claim statutory protections afforded married couplesupon the death of a spouse, such as intestacy rights. See Tex. Probate Code 8 45 Thesurviving spouse could not file a wrongful d