Gay and Lesbian Texas Couples Amicus Brief

Case No.
14-50196

United States Court of Appeals
for the
Fifth Circuit

CLEOPATRA DELEON; NICOLE DIMETMAN;
VICTOR HOLMES; MARK PHARISS,
Plaintiffs-Appellees,
v.
RICK PERRY, in his official capacity as Governor of the State of Texas;
GREG ABBOTT, in his official capacity as Texas Attorney General;
DAVID LAKEY, 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

BRIEF OF AMICI CURIAE ELEVEN GAY AND LESBIAN
COUPLES LIVING IN TEXAS IN SUPPORT OF
PLAINTIFFS-APPELLEES AND AFFIRMANCE

ROBERTA A. KAPLAN, ESQ.
PAUL, WEISS, RIFKIND, WHARTON
& GARRISON LLP
1285 Avenue of the Americas
New York, New York 10019
(212) 373-3000
rkaplan@paulweiss.com
Of Counsel:
ALAN B. MORRISON, ESQ.
GEORGE WASHINGTON
UNIVERSITY LAW SCHOOL
2000 H Street, NW
Washington, DC 20052
(202) 994-7120
abmorrison@law.gwu.edu
Attorneys for Amici Curiae

Case: 14-50196 Document: 00512770312 Page: 1 Date Filed: 09/16/2014
CERTIFICATE OF INTERESTED PERSONS
No. 14-50196, DeLeon et al. v. Perry et al.
The undersigned counsel of record certifies that the following
listed persons and entities as described in the fourth sentence of Rule 28.2.1
have an interest in the outcome of this case. These representations are made
in order that the Judges of this Court may evaluate possible disqualification
or recusal.
PLAINTIFFS / APPELLEES:
Cleopatra De Leon, Nicole Dimetman, Victor Holmes, and Mark Phariss
PLAINTIFFS / APPELLEES COUNSEL:
Barry Alan Chasnoff (Trial and appellate counsel)
Daniel McNeel Lane, Jr. (Trial and appellate counsel)
Matthew E. Pepping (Trial and appellate counsel)
Akin Gump Strauss Hauer & Feld LLP
300 Convent St., Suite 1600
San Antonio, TX 78205

Michael P. Cooley (Trial and appellate counsel)
Andrew Newman (Trial and appellate counsel)
1700 Pacific Ave, Suite 4100
Dallas, TX 75201

Jessica M. Weisel (Trial and appellate counsel)
2029 Century Park East, Suite 2400
Los Angeles, CA 90067-3010

Frank Stenger-Castro (Trial counsel)
Attorney at Law
208 Sir Arthur Court
DEFENDANTS / APPELLANTS:
Rick Perry, in his official capacity as Governor of Texas (Defendant /
Appellant)
Greg Abbott, in his official capacity as Texas Attorney General (Defendant /
Appellant)
David Lakey, in his official capacity as Commissioner of the Texas
Department of State Health Services (Defendant / Appellant)
Gerard Rickhoff, in his official capacity as Bexar County Clerk (Defendant)
DEFENDANTS / APPELLANTS COUNSEL:
Michael P. Murphy (Trial and appellate counsel for Appellants)
Beth Ellen Klusmann (Trial and appellate counsel for Appellants)
Office of the Attorney General
Office of the Solicitor General
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548

Jonathan F. Mitchell (Trial and appellate counsel for Appellants)
Office of the Solicitor General for the State of Texas
209 W. 14th Street
Austin, TX 78701

Susan Bowen (Trial counsel for Defendant Rickhoff)
Bexar County District Attorneys Office
101 Nueva, 4th Floor
AMICUS CURIAE SUZANNE BRYANT, CLINTON CHAMBERLAIN,
KARON FRANCES COOK, JULIE ELLIOT-ABSHIRE, STEPHANIE
ELLIOT-ABSHIRE, JAMES FAIRCHILD III, DAVID M. GARZA,
SARAH GOODFRIEND, MARTIN HARRISON, HEATHER HAUCH,
JOHN S. HOGG, THOMAS KOENIG, KRISTY KYLE, NOEL
LANDUYT, KRISTY NOBLE, DONALD PURYEAR, CHRISTA
ROBBINS, TONI RODDEY, GARY SCHUMMAN, JASON STARK,
ANGEL VALDEZ, J. BROOK WARD:
Roberta Kaplan
Paul, Weiss, Rifkind, Wharton & Garrison LLP
New York, New York 10019-6064

AMICUS CURIAE 23 SCHOLARS OF FEDERALISM AND JUDICIAL
RESTRAINT:

Dean John Sauer
Clark & Sauer, L.L.C.
Suite 625
7733 Forsyth Boulevard
Saint Louis, MO 63105
AMICUS CURIAE HELEN M. ALVARE:

Steven James Griffin
Daniel, Coker, Horton & Bell, P.A.
Suite 400
4400 Old Canton Road
Jackson, MS 39211
AMICUS CURIAE RYAN T. ANDERSON:

Michael Francis Smith
Smith Appellate Law Firm
Suite 1025
1717 Pennsylvania Avenue, N.W.
AMICUS CURIAE BECKET FUND FOR RELIGIOUS LIBERTY:

Eric C. Rassbach
Becket Fund for Religious Liberty
Suite 220
3000 K Street, N.W.
AMICUS CURIAE DAVID BOYLE:

David Boyle
P.O. Box 15143
Long Beach, CA 90815
AMICUS CURIAE PROFESSOR JASON S. CARROLL:

Robert Smead Hogan
Hogan Law Firm, P.C.
1801 13th Street
Lubbock, TX 79401-0000
AMICUS CURIAE CENTER FOR THE PRESERVATION OF
AMERICAN IDEALS:

Cecilia M. Wood
Suite 830
919 Congress Avenue
Capitol Centre Building
Austin, TX 78701
AMICUS CURIAE CHURCH OF JESUS CHRIST OF LATTER-DAY
SAINTS:
Richard Arthur Bordelon
Ralph Joseph Aucoin, Sr.
Denechaud & Denechaud, L.L.P.
Suite 3010
1010 Common Street
New Orleans, LA 70112-0000
AMICUS CURIAE COALITION OF AFRICAN AMERICAN PASTORS:

Leif A. Olson
Olson Firm, P.L.L.C.
Suite 300/PMB 188
4830 Wilson Road
Humble, TX 77396
AMICUS CURIAE CONCERNED WOMEN FOR AMERICA:

Steven W. Fitschen
National Legal Foundation
Suite 204
2224 Virginia Beach Boulevard
Virginia Beach, VA 23454-0000
AMICUS CURIAE EAGLE FORUM EDUCATION AND LEGAL
DEFENSE FUND:

Lawrence John Joseph
Suite 200
1250 Connecticut Avenue, N.W.
Washington, DC 22102-0000

AMICUS CURIAE ETHICS & RELIGIOUS LIBERTY COMMISSION OF
THE SOUTHERN BAPTIST CONVENTION:

Suite 3010
1010 Common Street

AMICUS CURIAE KATY FAUST:

David Boyle
P.O. Box 15143
AMICUS CURIAE ROBERT P. GEORGE:

Suite 1025

AMICUS CURIAE SHERIF GIRGIS:

Suite 1025
AMICUS CURIAE PROFESSOR ALAN J. HAWKINS:

Robert Smead Hogan
Hogan Law Firm, P.C.
1801 13th Street
Lubbock, TX 79401-0000

AMICUS CURIAE B. N. KLEIN:

David Boyle
P.O. Box 15143

AMICUS CURIAE LIBERTY, LIFE, AND LAW FOUNDATION:

Deborah Jane Dewart
620 E. Sabiston Drive
Swansboro, NC 28584-9674
AMICUS CURIAE LIBERTY COUNSEL:
Mathew D. Staver
Anita Leigh Staver
Liberty Counsel
2nd Floor
1053 Maitland Center Commons
Maitland, FL 32751-7214

Mary Elizabeth McAlister
Liberty Counsel
Suite 2775
100 Mountain View Road
Lynchburg, VA 24502-0000
AMICUS CURIAE ROBERT OSCAR LOPEZ:

David Boyle
P.O. Box 15143

AMICUS CURIAE LOUISIANA FAMILY FORUM:

David Robert Nimocks
Alliance Defending Freedom
Suite 509
801 G Street, N.W.

Robert Paul Wilson
Law Offices of Robert P. Wilson
Suite 150
26545 Interstate 10, W.
Boerne, TX 78006
AMICUS CURIAE LUTHERAN CHURCH MISSOURI SYNOD:

Suite 3010
1010 Common Street

AMICUS CURIAE MARRIAGE LAW FOUNDATION:

William C. Duncan
Marriage Law Foundation
1868 N. 800, E.
Lehi, UT 84043
AMICUS CURIAE PAUL MCHUGH:

Kevin Trent Snider, Chief Counsel
Pacific Justice Institute
Suite 115
9851 Horn Road
Sacramento, CA 95827

AMICUS CURIAE NATIONAL ASSOCIATION OF EVANGELICALS:

Suite 3010
1010 Common Street

AMICUS CURIAE NORTH CAROLINA VALUES COALITION:

Deborah Jane Dewart
620 E. Sabiston Drive
Swansboro, NC 28584-9674
AMICUS CURIAE DAVID ROBINSON:

David Robinson
P.O. Box 780
North Haven, CT 06473

AMICUS CURIAE SOCIAL SCIENCE PROFESSORS:

Jon Roy Ker
400 N. Hewitt Drive
Hewitt, TX 76643-0000
AMICUS CURIAE STATE OF ALASKA:

Thomas Molnar Fisher, Solicitor General
Office of the Attorney General for the State of Indiana
IGCS 5th Floor
302 W. Washington Street
Indianapolis, IN 46204

AMICUS CURIAE STATE OF ARIZONA:

IGCS 5th Floor

AMICUS CURIAE STATE OF COLORADO:

IGCS 5th Floor
AMICUS CURIAE STATE OF IDAHO:

IGCS 5th Floor

AMICUS CURIAE STATE OF INDIANA:

IGCS 5th Floor
AMICUS CURIAE STATE OF LOUISIANA:

Stuart Kyle Duncan
Duncan, P.L.L.C.
Suite 300
1629 K Street, N.W.

AMICUS CURIAE STATE OF MONTANA:

IGCS 5th Floor

AMICUS CURIAE STATE OF OKLAHOMA:

IGCS 5th Floor
AMICUS CURIAE STATE OF SOUTH CAROLINA:

IGCS 5th Floor

AMICUS CURIAE STATE OF SOUTH DAKOTA:

IGCS 5th Floor
AMICUS CURIAE STATE OF UTAH:

IGCS 5th Floor

AMICUS CURIAE DAWN STEFANOWICZ:

David Boyle
P.O. Box 15143

AMICUS CURIAE TEXAS CONSERVATIVE COALITION:

Russell Henry Withers
Texas Conservative Coalition
Suite 450
919 Congress Avenue
Austin, TX 78701
AMICUS CURIAE TEXAS EAGLE FORUM:

Lawrence John Joseph
Suite 200
1250 Connecticut Avenue, N.W.
Washington, DC 22102-0000

AMICUS CURIAE TEXAS VALUES:

David Robert Nimocks
Alliance Defending Freedom
Suite 509
801 G Street, N.W.
Robert Paul Wilson
Law Offices of Robert P. Wilson
Suite 150
26545 Interstate 10, W.
Boerne, TX 78006
AMICUS CURIAE UNITED STATES CONFERENCE OF CATHOLIC
BISHOPS:

Suite 3010
1010 Common Street

AMICUS CURIAE UNITED STATES PASTOR COUNCIL:

Leif A. Olson
Olson Firm, P.L.L.C.
Suite 300/PMB 188
4830 Wilson Road
Humble, TX 77396

AMICUS CURIAE DAVID ROBERT UPHAM, ESQ.:

David Robert Upham
University of Dallas
1845 E. Northgate Drive
Irving, TX 75062

/s/ Roberta A. Kaplan

Roberta A. Kaplan, Esq.
& GARRISON LLP
(212) 373-3000

i

TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE ................................................................... 1
SUMMARY OF ARGUMENT ...................................................................... 5
ARGUMENT .................................................................................................. 7
I. Texass Constitution and Statutes Deprive Gay Couples of
Basic and Significant Rights Available to Straight Couples ................ 7
II. The Texas Laws Precluding the Provision of Any Rights to Gay
Couples in Texas Violate the Constitution Under Romer and
Windsor ............................................................................................... 16
A. The Court Below and Other Courts Across the Nation
Have Correctly Interpreted Windsor ........................................ 16
B. As in Romer and Windsor, the Court Should Consider
Evidence of Unconstitutional Animus Directed Toward
Gay People ............................................................................... 20
CONCLUSION ............................................................................................. 28

ii

TABLE OF AUTHORITIES
Page(s)
CASES
Baskin v. Bogan,
No. 1:14-cv-00355, 2014 WL 1568884 (S.D. Ind. Apr. 18, 2014) .......... 19
Baskin v. Bogan,
No. 1:14-cv-00355, 2014 WL 2884868 (S.D. Ind. June 25, 2014) .......... 19
Baskin v. Bogan,
No. 14-2386, 2014 WL 4359059 (7th Cir. Sept. 4, 2014)............. 6, 10, 16
Bassett v. Snyder,
951 F. Supp. 2d 939 (E.D. Mich. 2013) ................................................... 18
Bd. of Trustees of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) ................................................................................. 24
Bishop v. Smith,
14-5003, 2014 WL 3537847 (10th Cir. July 18, 2014) ............................ 28
Bishop v. United States ex rel. Holder,
962 F. Supp. 2d 1252 (N.D. Okla. 2014) ................................................. 19
Bostic v. Rainey,
970 F. Supp. 2d 456 (E.D. Va. 2014) ....................................................... 19
Bostic v. Schaefer,
No. 14-1167, 2014 WL 3702493 (4th Cir. July 28, 2014) ......................... 7
Bourke v. Beshear,
996 F. Supp. 2d 542 (W.D. Ky. 2014) ..................................................... 19
Brenner v. Scott,
No. 4:14cv107, 2014 WL 4113100 (N.D. Fla. Aug. 21, 2014) ............... 19
Brinkman v. Long,
No. 13-cv-32572, 2014 WL 3408024 (Colo. Dist. Ct. July 9, 2014) ....... 19
City of College Station, Tex. v. Star Ins. Co.,
735 F.3d 332 (5th Cir. 2013) .................................................................... 17
iii

City of Cuyahoga Falls v. Buckeye Cmty. Hope Found.,
538 U.S. 188 (2003) ................................................................................. 28
Cooper-Harris v. United States,
965 F. Supp. 2d 1139 (C.D. Cal. 2013) .................................................... 18
Cozen OConnor, P.C. v. Tobits,
No. 2:11-CV-00045, 2013 WL 3878688 (E.D. Pa. July 29, 2013) .......... 18
De Leon v. Perry,
975 F. Supp. 2d 632 (W.D. Tex. 2014) ............................................ passim
DeBoer v. Snyder,
973 F. Supp. 2d 757 (E.D. Mich. 2014) ................................................... 19
Evans v. Utah,
No. 2:14-CV-55, 2014 WL 2048343 (D. Utah May 19, 2014) ................ 19
Food & Drug Admin. v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ................................................................................... 8
Garden State Equality v. Dow,
82 A.3d 336 (N.J. Super. Ct. 2013) .......................................................... 18
Geiger v. Kitzhaber,
No. 6:13-CV-1834, 2014 WL 2054264 (D. Or. May 19, 2014) .............. 19
Gray v. Orr,
No. 1:13-CV-8449, 2013 WL 6355918 (N.D. Ill. Dec. 5, 2013) ............. 18
Griego v. Oliver,
316 P.3d 865 (N.M. 2013) ........................................................................ 18
Henry v. Himes,
No. 1:14-CV-129, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014) .......... 19
Huntsman v. Heavilin,
No. 2014-CA-305-K (Fla. Cir. Ct. Monroe Cnty. July 17, 2014) ............ 19
I.N.S. v. Pangilinan,
486 U.S. 875 (1988) ................................................................................. 28
iv

James v. Hertzog,
415 F. Appx 530 (5th Cir. 2011) ...................................................... 17, 18
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014) .................................................................. 6
Kitchen v. Herbert,
961 F. Supp. 2d 1181 (D. Utah 2013) ...................................................... 19
Latta v. Otter,
No. 1:13-CV-00482, 2014 WL 1909999 (D. Idaho May 13, 2014) ........ 19
Lawrence v. Texas,
539 U.S. 558 (2003) .................................................................... 25, 26, 27
Lee v. Orr,
No. 1:13-CV-8719, 2013 WL 6490577 (N.D. Ill. Dec. 10, 2013) ........... 18
Love v. Beshear,
989 F. Supp. 2d 536 (W.D. Ky. 2014) ..................................................... 19
Majors v. Jeanes,
No. 2:14-cv-00518 (D. Ariz. Sept. 12, 2014) ........................................... 19
Obergefell v. Kasich,
No. 13-cv-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013) ................ 18
Obergefell v. Wymyslo,
962 F. Supp. 2d 968 (S.D. Ohio 2013) ..................................................... 19
Pareto v. Ruvin,
No. 14-1661 CA 24 (Fla. Cir. Ct. Miami-Dade Cnty. July 25, 2014)...... 19
Robicheaux v. Caldwell,
No. 2:13-cv-05090, 2014 WL 4347099 (E.D. La. Sept. 3, 2014) ............ 19
Romer v. Evans,
517 U.S. 620 (1996) ......................................................................... passim
SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014) .................................................................... 19
v

Tanco v. Haslam,
No. 3:13-CV-1159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) ....... 19
Whitewood v. Wolf,
992 F. Supp. 2d 410 (M.D. Pa. 2014) ....................................................... 19
United States v. Windsor,
133 S. Ct. 2675 (2013) ...................................................................... passim
Wolf v. Walker,
986 F. Supp. 2d 982 (W.D. Wis. 2014) .................................................... 19
Wright v. State of Arkansas,
No. 60CV-13-2662, 2014 WL 1908815 (Ark. Cir. Ct. May 9, 2014) ..... 19
STATUTES
Tex. Alco. Bev. Code 5.05(d)(2) ................................................................ 15
Tex. Civ. Prac. & Rem. Code 71.004(a) ..................................................... 14
Tex. Estates Code 102.004 ......................................................................... 13
Tex. Estates Code 102.005 ......................................................................... 14
Tex. Estates Code 201.002 ......................................................................... 13
Tex. Estates Code 201.003.. ....................................................................... 13
Tex. Estates Code 304.001 ......................................................................... 13
Tex. Fam. Code 3.002 ................................................................................. 15
Tex. Fam. Code 3.003.. ............................................................................... 15
Tex. Fam. Code 6.204 ......................................................................... passim
Tex. Fam. Code 7.001 et seq. ..................................................................... 14
Tex. Fin. Code 11.105 ................................................................................ 15
Tex. Govt Code 615.021(a)(2) .................................................................. 14
Tex. Govt Code 814.402 ........................................................................... 12
vi

Tex. Govt Code 814.503.. ......................................................................... 12
Tex. Health & Safety Code 166.039(b) ...................................................... 13
Tex. Health & Safety Code 192.001 et seq. ............................................... 10
Tex. Health & Safety Code 192.008(a) ...................................................... 10
Tex. Lab. Code 408.182 ............................................................................. 14
CONSTITUTIONS
Colo. Const. art. II, 30b ....................................................................... 20, 21
Tex. Const. art. I, 32 ........................................................................... passim
OTHER AUTHORITIES
The University of Texas at Austin, Insurance Benefit Overview,
http://www.utexas.edu/hr/current/insurance/insurance.html#
eligibility ................................................................................................... 12
Emily Ramshaw, This They Believe: Gay Marriage Vote
Crucial, Dallas Morning News, Nov. 4, 2005 .......................................... 23
Fed. R. App. P. 29(a) ....................................................................................... 1
Greg Stohr, Gay Marriage Nears Supreme Court With
Inevitability Tag, Bloomberg, July 31, 2014, ........................................... 20
Lyle Denniston, The marriage ruling streak and what it
means, made simple, SCOTUSblog (Aug. 12, 2014) ........................ 19, 20
R.G. Ratcliffe, Ministers Ask Faithful to Help Ban Gay
Marriage, Houston Chronicle, Sept. 18, 2005 ......................................... 23
Rebeca Chapa, Moral Issue Has Political Ring, San Antonio
Express-News, Oct. 14, 2005 ................................................................... 23
Rebeca Chapa, With Gay Marriage, Symbol is Substance, San
Antonio Express-News, Oct. 22, 2005 .............................................. 22, 23
Tex. Atty Gen., Opinion No. GA-1003 (Apr. 29, 2013) .............................. 12
vii

Tex. Bureau of Vital Statistics, Adoption: Frequently Asked
Questions, https://www.dshs.state.tx.us/vs/reqproc/faq/
adoption.shtm ............................................................................................ 11


INTEREST OF AMICI CURIAE
1

This brief is being submitted on behalf of eleven gay and
lesbian couples living in Texas, each of whom is in a committed, long-term
relationship and is either unmarried or was married in another state,
marriages that Texas does not recognize for any purpose (Amici Curiae or
the Amici Curiae Couples). Amici Curiae seek equal protection under the
law in connection with the very significant and concrete rights, benefits, and
duties that, for straight couples in Texas, come with marriage. Indeed,
certain provisions in Texass statutes and Constitution are particularly
egregious from a constitutional standpoint because they not only deny gay
couples access to marriage, but actually prohibit the provision of any
governmental right, duty, or benefit to any gay couple regardless of the
circumstances.
Unmarried Couples
1. Donald Puryear and Angel Valdez are lifelong Houstonians
who have been in a committed relationship for over twenty years. Don and

1
This brief is filed with the consent of all parties; thus, no motion for leave
to file is required. See Joint Consent by All Parties to the Filing of Amicus
Curiae Briefs, DeLeon v. Perry, No. 14-50196 (5th Cir. June 25, 2014); see
also Fed. R. App. P. 29(a). Counsel for a party did not author this brief in
whole or in part, and no one other than the Amici Curiae or their counsel
contributed money that was intended to fund the preparation or submission
of this brief.

2

Angel are cofounders of two technology companies. Because they cannot be
married in Texas, Don and Angel have executed reciprocal provisions in
their wills, medical directives, life insurance policies, and other related legal
documents, which they hope will protect each other under exigent
circumstances.
2. Sarah Goodfriend and Suzanne Bryant have been together
for thirty years and are raising two daughters together. Although Sarah was
diagnosed with ovarian cancer in May 2014, because the couple is not
married, Suzanne cannot be listed as a spouse on medical records and
cannot make medical decisions for Sarah. Further, Suzanne and Sarah have
repeatedly had to justify their relationship to Sarahs medical providers.
3. Karon Frances Cook and Toni Roddey have been together
for twenty-four years. Both are professors in medical fields; Karon is on the
faculty at Northwestern University and telecommutes, while Toni is on the
faculty at Texas Womans University. Although Karon would like to retire
soon, she has been reluctant to do so because she is unable to join Tonis
healthcare plan since TWU is a Texas public institution and cannot offer
benefits to gay couples who cannot marry in Texas.
4. Gary Schumman and Noel Landuyt have been in a
committed relationship for several years. Gary and Noel live and raise their

3

children (from previous marriages) together. Among other tangible harms,
Texass refusal to allow them to marry, or even to recognize any relationship
comparable to marriage, prevents Gary and his children from participating in
the benefit plans in which Noel is enrolled as an employee of the University
of Texas at Austin. Instead, Gary pays insurance premiums as a self-
employed individual for himself and the children from his prior marriage.
5. Clinton Chamberlain and James Fairchild III have been
together for six years. Clinton and James are interested in adopting or
fostering children, but have hesitated to do so because they cannot marry.
6. John S. Hogg and David M. Garza have been together for
ten years and live in Austin. John and David are waiting to be married until
it is legal to do so in Texas.
Married Couples
7. Julie and Stephanie Elliott-Abshire have been together for
nine years and were legally wed in New Mexico. Although they are raising
two daughters together, because they are lesbians, they have had difficulty
getting both of their parental rights recognized. Julie is the sole legal parent
of their seventeen-year old daughter and Stephanie is the only legal parent of
their three-year old daughter. Julie, who is the former chief of police for
Florence, has a pension through the Texas Municipal Retirement System.

4

8. Christa Robbins and Kristy Kyle, who have been together
for twelve years, married in California in 2008. Although Christa and Kristy
are raising a son together whom they adopted as a newborn, the adoption
process was complicated because of their inability to be married in Texas.
In addition, only Christa has been designated as a parent on their sons birth
certificate, because Texas law does not allow two women to be listed on a
birth certificate.
9. J. Brook Ward and Jason Stark were married three years ago
in Washington, D.C. They live in Houston and are raising two boys
together. Although Brook and his former partner share custody of the boys
under an amicable arrangement, no enforceable agreement is in place
because there can be no court order concerning custody or child support for
gay families in Texas.
10. Thomas Koenig and Martin Harrison have been together
for over forty years, and were recently married in New Mexico. Tom is
employed as the Chief Deputy of Operations for the Bexar County Clerk,
and is a county employee. Although Tom was able to add Marty to his
health insurance policy after the Commissioners Court approved one plus
benefits in early February 2014, it is not clear whether this ruling applies to
Toms pension benefits as well.

5

11. Heather Hauch and Kristy Noble have been together for six
years, and were recently married in California. Heather and Kristy want to
have access to joint health insurance and to hospital visitation in case of
emergency.
SUMMARY OF ARGUMENT
The district court properly held that Plaintiffs-Appellees are
likely to show that Article I, Section 32 of the Texas Constitution (Section
32) and Texas Family Code Section 6.204 (Section 6.204) are
unconstitutional in their entirety. In particular, both Section 32 and Section
6.204 discriminate against gay couples not only by denying them the right to
marryitself clearly unconstitutionalbut also because each contains
additional provisions that blatantly and permanently deny gay couples any
legal rights as a couple in any form whatsoever. Tex. Const. art. I, 32;
Tex. Fam. Code 6.204(c).
Thus, Section 6.204(c) expressly prohibits Texas from giving
effect to any right or claim to any legal protection, benefit, or responsibility
asserted as a result of a marriage between persons of the same sex or a civil
union in this state or in any other jurisdiction. Id. (emphasis added).
Likewise, Section 32, set forth as Article I, Section 32(b) of the Texas
Constitution, provides as follows: [t]his state or a political subdivision of

6

this state may not create or recognize any legal status identical or similar to
marriage. These provisions harm not only the Amici Curiae Couples who
are unmarried, but also those who were lawfully married in other states.
The impact of the above-quoted provisions is breathtaking in
scope. They expressly bar the State of Texas from recognizing any legal
rights, responsibilities, or protectionsregardless of the subject matterto
any member of any gay couple at any time or in any place. By depriving the
gay citizens of Texas access to the myriad statutory rights and benefits
available to straight couples through marriage, these laws constitute
independent and grievous violations of the constitutional guarantee of equal
protection. Effectively, what these provisions do is write inequality into
Texas law in violation of the Fourteenth Amendment to the United States
Constitution. See Baskin v. Bogan, No. 14-2386, 2014 WL 4359059, at *12
(7th Cir. Sept. 4, 2014) (Posner, J.) (A degree of arbitrariness is inherent in
government regulation, but when there is no justification for governments
treating a traditionally discriminated-against group significantly worse than
the dominant group in the society, doing so denies equal protection of the
laws.); see also United States v. Windsor, 133 S. Ct. 2675 (2013); Romer v.
Evans, 517 U.S. 620 (1996); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.

7

2014); Bostic v. Schaefer, No. 14-1167, 2014 WL 3702493 (4th Cir. July 28,
2014).
ARGUMENT
I. Texass Constitution and Statutes Deprive Gay Couples of Basic
and Significant Rights Available to Straight Couples
Section 32 and Section 6.204 not only prohibit gay couples
from marrying, but also prevent them from receiving any of the benefits
available to married couples under any circumstances. Section 32 could not
be more explicit when it states that [t]his 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. Similarly, Section 6.204 expressly
prohibits the State from giving effect to any right or claim to any legal
protection, benefit, or responsibility asserted as a result of a marriage
between persons of the same sex or a civil union in this state or in any other
jurisdiction. Tex. Fam. Code 6.204(c) (emphasis added).
This language seeks to prohibit the state government in Texas
from providing even discrete benefits to gay couples in specific
circumstances such as the right to make medical decisions for ones partner
in case of emergency or the right to participate as a family member in a
health insurance plan. In other words, gay people in Texas are permanently

8

disabled under Texas law from being treated as anything more than second-
class citizens.
As in construing any statute, Section 32 and Section 6.204 must
be examined as a whole, not merely as isolated sections. See Food & Drug
Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000).
Thus, while this Court must give careful attention to Texass prohibition of
marriages between gay people, its analysis cannot end there. The Court
must also decide whether Texass prohibition of gay people from ever
obtaining any rights as committed couplesat any time and under any
circumstancespasses constitutional muster. It does not.
In finding the Defense of Marriage Act (DOMA)
unconstitutional in Windsor, Justice Kennedy emphasized that Section 3 of
DOMA touches many aspects of married and family life, from the mundane
to the profound . . . [and] divests married same-sex couples of the duties and
responsibilities that are an essential part of married life. Windsor, 133 S.
Ct. at 269495. See also Transcript of Oral Argument at 71, United States v.
Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) (Justice Ginsburg: [I]ts
as Justice Kennedy said, 1,100 statutes, and it affects every area of life . . .
[DOMA says there are] two kinds of marriage, the full marriage, and then
this sort of skim milk marriage.). The Windsor court catalogued many of

9

these aspects of married and family life adversely impacted by DOMA,
which are an integral part of family security. 133 S. Ct. at 2694.
According to the Supreme Court, these aspects of married life included:
government healthcare benefits, the special protections of the
Bankruptcy Code, the right to be buried together in veterans cemeteries,
protections for family members of United States officials, tax deductions for
the cost of health care for families, and benefits allowed . . . upon the loss
of a spouse and parent. Id. at 269495. To paraphrase the Supreme Court
in an analogous context, [t]hese are protections taken for granted by most
people either because they already have them or do not need them; these are
protections against exclusion from an almost limitless number of
transactions and endeavors that constitute ordinary civic life in a free
society. Romer, 517 U.S. at 631.
By failing to grant equal treatment to gay couples in Texas,
Section 32 and Section 6.204 cause exactly the same kind of harm as
DOMA did. Just as DOMA imposed restrictions and disabilities

on
lesbians like Edie Windsor under federal law, Section 32 and Section 6.204
here deprive Texans of scores of concrete and important benefits and rights,
from the mundane to the profound, available under state law. Windsor,
133 S. Ct. at 2692, 2694. As was the case with DOMA in the federal sphere,

10

in the state sphere, these restrictions and disabilities involve a wide range
of issues, from financial decisions and financial security to familial
relationships and parental obligations, from access to healthcare and the
authority to make medical decisions for a loved one to estate planning and
the transfer of assets. Deliberately withholding these important statutory
protections, that most married straight couples take[] for granted, from gay
and lesbian couples in Texas offends basic principles of equal protection.
Romer, 517 U.S. at 631. Indeed, Judge Posner recently reached this
conclusion when he observed that [t]he [Supreme] Courts criticisms [in
Windsor] of [the non-recognition by the federal government of gay couples
marriages] apply with even greater force to Indianas law. Baskin, 2014
WL 4359059, at *6. An illustrative, though not comprehensive, list of some
of the more significant rights and benefits at issue is discussed below.
Family and parenthood. Texas law expressly prohibits gay
partners from being listed together on a birth certificate, since only a
mother and a father can be listed. Tex. Health & Safety Code 192.001
et seq. This is also true when gay parents adopt a child. 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

11

male, named as the father.). See also Tex. Bureau of Vital Statistics,
Adoption: Frequently Asked Questions, https://www.dshs.state.tx.us/vs/
reqproc/faq/adoption.shtm (last updated Aug. 22, 2013) ([W]hen a child is
adopted by a same-sex couple, one of the adoptive parents must choose to be
designated on the birth certificate as the father, in the case of a male couple,
or the mother, in the case of a female couple. The other adoptive parent is
not listed.). As discussed above, these barriers to the legal recognition of
the parent-child relationship between gay and lesbian parents and their
children deprive children of many significant rights and protections under
Texas law. See generally, e.g., Tex. Educ. Code; Tex. Estates Code; Tex.
Fam. Code; Tex. Health & Safety Code; Tex. Penal Code.
These are particularly difficult issues for Amici such as Julie
and Stephanie Elliott-Abshire, who understandably want their children to
have the security and protection of having two legal parents, not one.
Retirement and health benefits for public employees.
Public employees in Texas are entitled to participate in generous state
retirement plans and access affordable healthcare for their families. Certain
benefits available under the various state pension systems are available only
to the spouse of a retiree or to the guardian of the retirees minor children,
and are not available to any other designated beneficiary. See, e.g., Tex.

12

Govt Code 814.402; 814.503 (occupational death and disability benefits
are only payable to a spouse or the guardian of minor children). Some
public employees purchase health insurance through a medical plan
sponsored by the State. An employees spouse can join the plan for a
nominal fee, but a gay partner, including Amicus Gary Schumman, is not
allowed to do so. See, e.g., The University of Texas at Austin, Insurance
Benefit Overview, http://www.utexas.edu/hr/current/insurance/insurance.htm
l#eligibility ([Y]our eligible dependents are: Your spouse as defined by the
Texas Family Code. . . .); Tex. Fam. Code 6.204(b) (A marriage
between persons of the same sex or a civil union is contrary to the public
policy of this state and is void in this state.). The Attorney General of
Texas has interpreted Section 32 to bar Texas cities, counties, and school
districts from offering health insurance and other benefits to domestic
partners as part of their employee benefits programs. See Tex. Atty Gen.,
Opinion No. GA-1003 (Apr. 29, 2013).
Healthcare decisions. Texas law presumes that gay people
are not qualified or permitted to make medical decisions on behalf of their
committed, long-term partners. In the absence of an advance health-care
directive, the following individuals, in order of priority, are appointed as
surrogates: the patients guardian, spouse (which obviously cannot include a

13

gay partner under current Texas law), adult child, parent, or the nearest
living relative. Tex. Health & Safety Code 166.039(b). Texas does not
authorize a gay or lesbian partner to be in that line of succession.
As noted above, these statutes have posed great difficulties for
Amici Sarah Goodfriend and Suzanne Bryant, who have had to struggle
through Sarahs cancer treatments without the assurance of knowing that
Suzanne can make decisions about Sarahs care if Sarah is unable to do so.
Probate, transfer of assets, and statutory claims.
Although Texas estate law protects and provides for surviving spouses,
surviving gay partners are not included within the laws of intestate
succession. See Tex. Estates Code 201.002; 201.003 (intestate shares of
separate property and community property to a surviving spouse). Texass
homestead rights similarly protect surviving spouses, but not surviving gay
and lesbian partners. See, e.g., Tex. Estates Code 102.004 (surviving
spouse not liable for the payment of any debts of the homestead estate); Tex.
Estates Code 102.005 (homestead may not be partitioned among heirs
during the lifetime of the surviving spouse). In the absence of any directive,
the surviving spouse is also appointed the personal representative of the
estate. Tex. Estates Code 304.001.

14

These provisions significantly complicate decisions about
planning for retirement, as is the case with Amici Don Puryear and Angel
Valdez or Karon Frances Cook and Toni Roddey.
Gay men and lesbians in Texas also are excluded from statutory
rights of action for wrongful deaththe cause of action is for the exclusive
benefit of the surviving spouse, children, and parents of the deceased,
which excludes a surviving gay partner. Tex. Civ. Prac. & Rem. Code
71.004(a). Similarly, if there is a workplace accident, a spousebut again,
not a gay or lesbian partneris authorized to collect workers compensation.
Tex. Lab. Code 408.182. And while straight spouses of certain public
employees such as police officers who die in the line of duty are entitled to
statutory death benefits, gay partners would be excluded from these benefits
if that should happen. See Tex. Govt Code 615.021(a)(2).
Misc. Duties. With rights, of course, come responsibilities.
Gay couples in Texas are not only prohibited from receiving any of the
benefits of marriage, but they are also exempt from any of its
responsibilities. Thus, when a gay couple separates, there are no options
available for legally-sanctioned divorce, alimony, or child support. See Tex.
Fam. Code 7.001 et seq. Unlike other couples, whose property is
presumed to be community property of the marital estate to be divided

15

equitably upon divorce, Texas law does not authorize gay and lesbian
couples to acquire community property. Tex. Fam. Code 3.002; 3.003.
These statutes have adversely impacted Amicus Brook Ward, who separated
from his prior partner, but does not have access to court-sanctioned
arrangements for child custody or support.
For similar reasons, a state employee who is gay is not required
to comply with the bans on acting in situations giving rise to conflicts of
interest that are applicable to straight, married couples. See, e.g., Tex. Fin.
Code 11.105 (prohibiting member of the Texas Finance Commission from
considering any matter related to an entity of which the members spouse is
an owner or has another financial interest); Tex. Alco. Bev. Code
5.05(d)(2) (prohibiting a person to be a member or employee of the Texas
Alcoholic Beverage Commission if the persons spouse is an officer or
consultant of a trade association in the alcoholic beverage industry).
* * *
It is worth noting that only one of the five categories of rights
and responsibilities discussed above relate to families with children. The
vast majority of statutory benefits that come with marriage under Texas law
accrue to married couples without regard to whether or not they are parents.
The State has argued that, in its view, the legal institution of marriage exists

16

primarily to encourage the orderly propagation of the human race by
channeling naturally procreative heterosexual activity into stable,
responsible relationships. Brief of Appellants at 10, DeLeon v. Perry, No.
14-50196 (5th Cir. July 28, 2014). But the fact that the majority of the
benefits that Texas offers to married straight couples do not relate to
children at all completely undermines the purported state interest in
channeling naturally procreative heterosexual activity into stable,
responsible relationships. See Baskin v. Bogan, No. 14-2386, 2014 WL
4359059, at *9 (7th Cir. Sept. 4, 2014) (The state must think marriage
valuable for something other than procreationthat even non-procreative
couples benefit from marriage.).
II. The Texas Laws Precluding the Provision of Any Rights to Gay
Couples in Texas Violate the Constitution Under Romer and
Windsor
A. The Court Below and Other Courts Across the
Nation Have Correctly Interpreted Windsor
In United States v. Windsor, the Supreme Court explicitly
recognized that marriage is more than a routine classification for purposes
of [] statutory benefits, and that marriages between gay couples are a far-
reaching legal acknowledgement of the intimate relationship between two
people, a relationship deemed by the State worthy of dignity in the
community equal with all other marriages. 133 S. Ct. at 2692. At the heart

17

of the Windsor decision is the principle that gay people have dignity, and
that the United States Constitution accordingly mandates that their dignity
be respected equally under the law. See, e.g., id. at 2693 ([I]nterference
with the equal dignity of same-sex marriages . . . was more than an
incidental effect of the federal statute. (emphasis added)); id at 2692
([T]he States decision to give this class of persons the right to marry
conferred upon them a dignity and status of immense import. (emphasis
added)); id. at 2696 (The federal statute is invalid, for no legitimate purpose
overcomes the purpose and effect to disparage and to injure those whom the
State, by its marriage laws, sought to protect in personhood and dignity.
(emphasis added)).
Because gay people are entitled to be treated in a way that
recognizes their equal dignity under the law, there can be no possible
justification for Texass radically disparate treatment of them here. As this
Court has recognized, governmental decisions that are discriminatory and
driven by an irrational animus violate the Equal Protection Clause of the
United States Constitution. City of College Station, Tex. v. Star Ins. Co.,
735 F.3d 332, 338 (5th Cir. 2013); see also James v. Hertzog, 415 F. Appx
530, 532 (5th Cir. 2011) (The Supreme Court has not recognized sexual
orientation as a suspect class; however, if the State violates the Equal

18

Protection Clause by creating a disadvantage for homosexuals, the States
conduct must have a rational relationship to legitimate governmental
aims. (quoting Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004))).
For this reason the district court below correctly concluded that 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. De Leon v. Perry, 975 F. Supp. 2d 632, 655 (W.D.
Tex. 2014) (quoting Obergefell v. Kasich, No. 13-cv-501, 2013 WL
3814262, at *6 (S.D. Ohio July 22, 2013)).
Since the Supreme Court issued its decision in Windsor in June
2013, no fewer than thirty-five courts across the United States, including
three Circuits and dozens of federal district courts, have held that the core
principle of equal dignity in Windsor compels extending rights to gay
people.
2
Only a single federal court has held to the contrary.
3

2
See e.g., Bassett v. Snyder, 951 F. Supp. 2d 939 (E.D. Mich. 2013);
Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262 (S.D. Ohio July
22, 2013); Cozen OConnor, P.C. v. Tobits, No. 2:11-CV-00045, 2013 WL
3878688 (E.D. Pa. July 29, 2013); Cooper-Harris v. United States, 965 F.
Supp. 2d 1139 (C.D. Cal. 2013); Garden State Equality v. Dow, 82 A.3d 336
(N.J. Super. Ct. 2013); Gray v. Orr, No. 1:13-CV-8449, 2013 WL 6355918
(N.D. Ill. Dec. 5, 2013); Lee v. Orr, No. 1:13-CV-8719, 2013 WL 6490577
(N.D. Ill. Dec. 10, 2013); Griego v. Oliver, 316 P.3d 865 (N.M. 2013);
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013), affd, 755 F.3d

19

This near unanimity in federal court decisions since Windsor is
virtually unprecedented in American law. As the noted Supreme Court
journalist Lyle Denniston has observed, [O]ne by one, federal and state
courts began applying the Windsor decision directly to strike down state

1193 (10th Cir. 2014); Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D.
Ohio 2013); Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252
(N.D. Okla. 2014), affd sub nom. Bishop v. Smith, No. 14-5003, 2014 WL
3537847 (10th

Cir. July 18, 2014); SmithKline Beecham Corp. v. Abbott
Labs., 740 F.3d 471 (9th Cir. 2014); Bourke v. Beshear, 996 F. Supp. 2d 542
(W.D. Ky. 2014); Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014),
affd sub nom. Bostic v. Schaefer, No. 14-1167, 2014 WL 3702493 (4th Cir.
July 28, 2014); De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014);
Tanco v. Haslam, No. 3:13-CV-1159, 2014 WL 997525 (M.D. Tenn. Mar.
14, 2014); DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014);
Henry v. Himes, No. 1:14-CV-129, 2014 WL 1418395 (S.D. Ohio Apr. 14,
2014); Baskin v. Bogan, 1:14-cv-00355, 2014 WL 1568884 (S.D. Ind. Apr.
18, 2014), affd No. 14-2386, 2014 WL 4359059 (7th Cir. Sept. 4, 2014);
Wright v. State of Arkansas, No. 60CV-13-2662, 2014 WL 1908815 (Ark.
Cir. Ct. May 9, 2014); Latta v. Otter, No. 1:13-CV-00482, 2014 WL
1909999 (D. Idaho May 13, 2014); Geiger v. Kitzhaber, No. 6:13-CV-1834,
2014 WL 2054264 (D. Or. May 19, 2014); Evans v. Utah, No. 2:14-CV-55,
2014 WL 2048343 (D. Utah May 19, 2014); Whitewood v. Wolf, 992 F.
Supp. 2d 410 (M.D. Pa. 2014), Wolf v. Walker, 986 F. Supp. 2d 982 (W.D.
Wis. 2014), affd No. 14-2526, 2014 WL 4359059 (7th Cir. Sept. 4, 2014);
Baskin v. Bogan, No. 1:14-cv-00355, 2014 WL 2884868 (S.D. Ind. June 25,
2014), affd No. 14-2526, 2014 WL 4359059 (7th Cir. Sept. 4, 2014); Love
v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky. 2014); Brinkman v. Long, No.
13-cv-32572, 2014 WL 3408024 (Colo. Dist. Ct. July 9, 2014); Huntsman v.
Heavilin, No. 2014-CA-305-K (Fla. Cir. Ct. Monroe Cnty. July 17, 2014);
Pareto v. Ruvin, No. 14-1661 CA 24 (Fla. Cir. Ct. Miami-Dade Cnty. July
25, 2014); Brenner v. Scott, No. 4:14cv107, 2014 WL 4113100 (N.D. Fla.
Aug. 21, 2014); Majors v. Jeanes, No. 2:14-cv-00518 (D. Ariz. Sept. 12,
2014).
3
Robicheaux v. Caldwell, No. 2:13-cv-05090, 2014 WL 4347099 (E.D. La.
Sept. 3, 2014).

20

bans under the federal Constitution. . . . [E]ven if the streak has not been
an unbroken one, the pace and frequency of the decisions that did go against
the state bans is, surely, unprecedented. Lyle Denniston, The marriage
ruling streak and what it means, made simple, SCOTUSblog (Aug. 12,
2014, 4:37 PM), http://www.scotusblog.com/2014/08/the-marriage-ruling-
streak-and-what-it-means-made-simple/. See also Greg Stohr, Gay
Marriage Nears Supreme Court With Inevitability Tag, Bloomberg, July 31,
2014, available at http://www.bloomberg.com/news/2014-07-31/gay-
marriage-nears-supreme-court-with-inevitability-tag.html (quoting Laurence
Tribe as saying I cant think of any Supreme Court decision in history that
has ever created so rapid and broad a lower-court groundswell in a single
direction as Windsor.)
B. As in Romer and Windsor, the Court Should
Consider Evidence of Unconstitutional
Animus Directed Toward Gay People
In Romer v. Evans, the Supreme Court held that an amendment
to the Colorado Constitution that prevented both the State of Colorado and
individual Colorado municipalities from protecting gay people from
discrimination was unconstitutional on equal protection grounds.
4
517 U.S.

4
The relevant amendment, Colo. Const. art. II, 30b, stated that:


21

620 (1996). The Romer court found the Colorado amendment to be
unconstitutional because it classifie[d] homosexuals not to further a proper
legislative end but to make them unequal to everyone else. Id. at 635
(emphasis added). The Supreme Court correctly determined that such
blatant and far-reaching discrimination was a violation of the Fourteenth
Amendments guarantee of equal protection. As Justice Kennedy explained,
[a] State cannot so deem a class of persons a stranger to its laws. Id.
In Windsor, the Court reaffirmed this principle in the strongest
possible terms. The Court emphasized that the Constitutions guarantee of
equality must at the very least mean that a bare . . . desire to harm a
politically unpopular group cannot justify disparate treatment of that group.
Windsor, 133 S. Ct. at 2693 (internal quotations omitted). Just like the state
constitutional amendment at issue in Romer, and the Defense of Marriage
Act in Windsor, the Texas laws at issue here withdraw[] from homosexuals,
but no others, specific legal protection . . . . Romer, 517 U.S. at 627.

Neither the State of Colorado, through any of its branches or departments,
nor any of its agencies, political subdivisions, municipalities or school
districts, shall enact, adopt or enforce any statute, regulation, ordinance or
policy whereby homosexual, lesbian or bisexual orientation, conduct,
practices or relationships shall constitute or otherwise be the basis of or
entitle any person or class of persons to have or claim any minority status,
quota preferences, protected status or claim of discrimination.

Id. at 624.

22

Here, as in Romer and Windsor, there is significant evidence of
improper animus towards gay and lesbian people in the discussion
surrounding the passage of Section 32 and Section 6.204 in Texas. The
district court, for example, observed that supporters of Section 6.204
claimed that the State had an interest in protecting the procreative
marriage relationship between a man and a woman in order to avoid[] the
health risks of same-sex relations and promiscuity and that [t]he states
recognition of same-sex marriages would undermine the institution of
marriage and societys ability to transmit its values to younger generations.
De Leon, 975 F. Supp. 2d at 642. The district court also quoted supporters
claims that prohibition of out-of-state same-sex civil unions was necessary
because they could lead to the recognition of bigamy, incest, pedophilia,
and group marriage and [i]f the state does not draw the line here, it would
be difficult to draw it anywhere. Id.
There is also powerful evidence of animus published in the
media at the time of the enactment of Section 32. One newspaper reported,
less than three weeks before the Texas Constitution was amended, that [t]he
principal argument of supporters [of a state ban on the recognition of gay
marriage] is that homosexuality is an abomination to God and that to open
the door to acceptance of gay marriage would lead to the inexorable decline

23

of the family in America. Rebeca Chapa, With Gay Marriage, Symbol is
Substance, San Antonio Express-News, Oct. 22, 2005, at B1. This
sentiment was echoed elsewhere in the media as well. See, e.g., Emily
Ramshaw, This They Believe: Gay Marriage Vote Crucial, Dallas Morning
News, Nov. 4, 2005, at A1 (explaining that amendment supporters fear
legalizing gay unions would legitimize sinful behavior).
In fact, Texas Governor Rick Perry himself was a vocal
supporter of Section 32 on moral grounds, as was widely reported during
public debate on the amendment. See, e.g., Rebeca Chapa, Moral Issue Has
Political Ring, San Antonio Express-News, Oct. 14, 2005, at B1 (A
proposed constitutional ban on gay marriage in Texas has been hailed by
Gov. Rick Perry and other supporters as a moral shield against a social ill
an unholy union of same-sex couples that would threaten the fabric of
society.); R.G. Ratcliffe, Ministers Ask Faithful to Help Ban Gay Marriage,
Houston Chronicle, Sept. 18, 2005, at B1 (It is a ridiculous notion to say
you cant legislate morality, [Texas Governor Rick] Perry said. I say you
cant not legislate morality.). As the district court observed, Governor
Perry was so supportive of the constitutional amendment that he signed
H.J.R. 6, the resolution that put the proposed amendment on the ballot with
great ceremony despite the fact that the governors approval is not

24

necessary to put a proposed constitutional amendment on an electorate
ballot. De Leon, 975 F. Supp. 2d at 64243 (citing Tex. Const. art. 17,
1(a)).
The above acts and statements are evidence of precisely the
kind of animus toward gay people that Justice Kagan has characterized as a
pretty good red flag that the law was motivated by a constitutionally
improper motive. Transcript of Oral Argument at 72, United States v.
Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) (Justice Kagan: [W]hen
Congress targets a group that is not everybodys favorite group in the world .
. . we look at those cases . . . with some rigor to say . . . do we think that
Congresss judgment was infected by dislike, by fear, by animus . . . the
question that this statute raises . . . is whether that sends up a pretty good red
flag that thats what was going on.). Significantly, the term animus for
equal protection purposes does not necessarily mean that an individual must
have overt hatred or hostility toward gay people. Animus can instead reflect
merely an insensitivity caused by simple want of careful, rational reflection
or from some instinctive mechanism to guard against people who appear to
be different in some respects from ourselves. Bd. of Trustees of Univ. of
Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). In
other words, constitutionally-suspect animus can be demonstrated simply by

25

virtue of fundamental changes in the societal understanding of gay people
and their relationships over time. See Lawrence v. Texas, 539 U.S. 558, 578
(2003) ([T]imes can blind us to certain truths and later generations can see
that laws once thought necessary and proper in fact serve only to oppress.);
Transcript of Oral Argument at 106, United States v. Windsor, 133 S. Ct.
2675 (2013) (No. 12-307) (Chief Justice Roberts: 84 Senators based their
vote on moral disapproval of gay people? Ms. Kaplan: No . . . I think what
is true, Mr. Chief Justice, is that times can blind, and that back in 1996
people did not have the understanding that they have today.).
In Windsor, the Supreme Court concluded that a statement in
the 1996 House Report for DOMA containing similar moralistic language
disapproving of gay people buttressed the conclusion that DOMA was
unconstitutional. See Windsor, 133 S. Ct. at 2693 (The House concluded
that DOMA expresses both moral disapproval of homosexuality, and a
moral conviction that heterosexuality better comports with traditional
(especially Judeo-Christian) morality. (citation omitted)). So too here.
The statements from 2005 asserting that passage of Section 32 in Texas was
necessary as a moral shield against the inexorable decline of the family in
America make it absolutely clear that a constitutionally impermissible
motivei.e., moral disapproval of gay peoplewas a motivating force

26

behind Section 32. See id. at 2694 (The stated purpose of the law was to
promote an interest in protecting the traditional moral teachings reflected in
heterosexual-only marriage laws. (citation omitted)).
While the State and several amici curiae on the other side argue
that Texas voters and legislators were motivated by rationales other than
moral disapproval or animus,
5
the Supreme Court has made it clear that
the existence of animus, or moral disapproval, by at least some if not all of
an anti-gay laws backers is nevertheless highly relevant. See Romer, 517
U.S. at 632 ([T]he amendment seems inexplicable by anything but animus
toward the class it affects; it lacks a rational relationship to legitimate state
interests.); Lawrence, 539 U.S. at 583 (OConnor, J., concurring) (Moral
disapproval of a group cannot be a legitimate government interest under the
Equal Protection Clause because legal classifications must not be drawn for

5
See, e.g., Appellants Brief at 9, DeLeon v. Perry, 14-50196 (5th Cir. July
28, 2014) (explaining that proponents of gay marriage make all-too-
common accusations that opponents of same-sex marriage are motivated by
animus and that traditional marriage laws serve only to demean same-sex
couples); Amicus Curiae Brief of the Texas Conservative Coalition in
Support of Defendants-Appellants and Reversal of the District Court at
2124, DeLeon v. Perry, No. 14-50196 (5th Cir. Aug. 4, 2014) (arguing that
Texass marriage laws are quite unlike the laws challenged in Romer and
Lawrence and that they were passed with non-discriminatory intentions);
Brief of Amici Curiae Indiana et al. in Support of Defendants-Appellants
and Supporting Reversal at 21, DeLeon v. Perry, No. 14-50196 (5th Cir.
Aug. 4, 2014) (citing pre-Windsor cases that rejected the theory that
restricting marriage to opposite-sex couples evinces unconstitutional animus
towards homosexuals as a group).

27

the purpose of disadvantaging the group burdened by the law. (citation
omitted)). After all, the Supreme Court in Windsor made no attempt to track
the vote of each Congressman and Senator who voted for DOMA. And
obviously, it would have been impossible for any court to do so since no
human can ever know what was in the hearts or minds of every legislator or
voter who voted in favor of a law. But the Supreme Court nevertheless
made it clear in Windsor that such a psychological analysis is not only
unnecessary, but entirely beside the point. In Windsor, the very fact that
there was significant evidence of unconstitutional animus directed toward
gay people was itself highly significant. 133 S. Ct. at 2693 (The House
concluded that DOMA expresses both moral disapproval of homosexuality,
and a moral conviction that heterosexuality better comports with traditional
(especially Judeo-Christian) morality. The stated purpose of the law was to
promote an interest in protecting the traditional moral teachings reflected in
heterosexual-only marriage laws. (citations omitted)); see also id. (Were
there any doubt of this far-reaching purpose, the title of the Act confirms it:
The Defense of Marriage.); Transcript of Oral Argument at 74, United
States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) (Mr. Clement:
Does the House Report say that? Of course, the House Report says that.

28

And if thats enough to invalidate the statute, then you should invalidate the
statute.).
6

CONCLUSION
In addition to prohibiting gay and lesbian marriage, the Texas laws at
issue here blatantly discriminate against gay and lesbian people by denying
legal recognition in any form whatsoever to their relationships and barring
the provision to them of any legal rights or protections in any form and of
any scope. For these reasons, Texas has violated the Fourteenth
Amendments guarantee of equal protection of the law.
The decision below should be affirmed.

6
Judge Holmes, concurring in Bishop v. Smith, posits that evidence of
animus should only be considered where a law is structurally aberrational
because (1) it impose[s] wide-ranging and novel deprivations upon the
disfavored group; or (2) it stray[s] from the historical territory of the
lawmaking sovereign just to eliminate privileges that a group would
otherwise receive. No. 14-5003, 2014 WL 3537847, at *24 (10th Cir. July
18, 2014). We respectfully submit that Judge Holmes erred in this analysis,
for which he cites no authority. Indeed, as noted above, in Windsor, Justice
Kennedy rejected this type of analysis by explicitly relying on statements in
the legislative history to conclude that DOMA was enacted in order to
interfere with the equal dignity of gay marriages. 133 S. Ct. at 2693. Judge
Holmes also does not account for the wide range of cases outside the context
of gay rights where the Supreme Court has considered the presence or
absence of animus to be relevant outside of these two circumstances. See,
e.g., City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188,
195 (2003); I.N.S. v. Pangilinan, 486 U.S. 875, 886 (1988).

29

Dated: September 16, 2014

& GARRISON LLP


Roberta A. Kaplan, Esq.
Jaren Janghorbani, Esq.
Joshua D. Kaye, Esq.
Jacob H. Hupart, Esq.
(212) 373-3000

Of Counsel:

Alan B. Morrison, Esq.
George Washington University Law School
2000 H Street, N.W.
Washington, D.C. 20052
(202) 994-7120
abmorrison@law.gwu.edu


CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

Certificate of Compliance With Type-Volume Limitation, Typeface
Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 6,598 words, excluding the
parts of the brief exempted by Fed. R. App. P. 23(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a proportionally spaced
typeface using Microsoft Word in 14-point Times New Roman font.
Date: September 16, 2014

CERTIFICATE OF ELECTRONIC COMPLIANCE

I hereby certify that, on this 16th day of September, 2014:
(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 a commercial virus scanning program and is free of viruses.


CERTIFICATE OF SERVICE

I hereby certify that on the 16th of September, 2014, I filed the
foregoing brief with the Courts CM/ECF system, which will automatically
send an electronic notice of filing to all counsel of record.


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