Case 5:13-cv-00982-OLG Document 83 Filed 11/24/14 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CLEOPATRA DE LEON, NICOLE

DIMETMAN, VICTOR HOLMES, and
MARK PHARISS

Plaintiffs,
v.
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.

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

PLAINTIFFS OPPOSED MOTION TO LIFT STAY OF INJUNCTION

Preliminary Statement
This Court should immediately lift the stay it placed on the preliminary injunction it
issued after finding that Texas same-sex marriage ban was unconstitutional. On February 27,
2014, this Court held that Texas laws prohibiting same-sex couples from marrying and denying
recognition to same-sex marriages validly entered in other states (collectively, Section 32)1

Plaintiffs challenged three Texas laws that prohibit same-sex couples from marrying and declaring void
lawful out-of-state marriages between same-sex couples: (1) Family Code 2.001, originally enacted in 1973 as
Family Code 1.01; (2) Family Code 6.204, enacted in 2003; and (3) Article I, 32 of the Texas Constitution,
passed as H.J.R. 6 by the Legislature and approved by voters in November 2005. Plaintiffs refer to these laws
collectively as Section 32.

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violate the Fourteenth Amendment of the United States Constitution. Consequently, the Court
entered a preliminary injunction barring the Defendants from continuing to enforce Section 32.
However, the Court stayed the preliminary injunction pending appeal because the Supreme Court
had recently stayed a similar ruling from the United States District Court for the District of Utah.
The Court should immediately lift the stay because the Supreme Courts actions
following entry of the stay no longer support its continuance. The Supreme Court denied
certiorari in appeals from the Fourth, Seventh, and Tenth Circuits decisions finding that state
laws banning same-sex marriage were unconstitutional. The denial of certiorari dissolved the
stays in place over those cases. Since then, the Supreme Court denied requests for stays (or
actually lifted stays) in other cases. While these cert denials concededly do not have legal
significance, the constitutional environment in which the Court initially entered the stay have
now changed radically and permanently. Fully two-thirds of citizens of the United States now
have an enforceable federal constitutional right to marry the person of their choice, irrespective
of gender.
More importantly, the unconstitutional state laws that restrict same-sex marriage continue
to cause direct and immediate harm to Plaintiffs during the pendency of this Courts stay. First,
Plaintiff Dimetman is pregnant with her and Plaintiff De Leons second child. If Dimetman does
not survive childbirth, De Leon will have no legal right to have access to their unborn child.
And, assuming all goes well at the babys birth, Section 32s continued enforcement will force
De Leon and Dimetman to incur the uncertainty and cost required for De Leon to adopt their
child.
Second, Plaintiffs Holmes and Phariss applied for a Texas marriage license more than 14
months ago. As a result of the stay, Texas continues to deny Holmes and Phariss their

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constitutional and fundamental right to marry and continues to demean their dignity for no
legitimate reason. De Leon v. Perry, 975 F. Supp. 2d 632, 639 (W.D. Tex. 2014). If something
were to happen to either of them, they would never be able to marry, exchange vows, place rings
on each others finger, say I do, or call each other spouses in the state of their residence. Their
present relationship is governed not by matrimony, but by a web of legal rights crafted by
necessity with the assistance of attorneys they must hire and pay themselves. The same is true
for the hundreds of thousands of Texas same-sex couples who continue to suffer deprivation of
their constitutional rights every day. The Court already found the laws depriving them of these
rights are unconstitutional, and the Court should vacate its stay enjoining Defendants continued
enforcement of those laws.
ARGUMENT
I.

THE COURTS BASIS FOR ISSUING THE STAY NO LONGER EXISTS.

In the portion of the summary judgment order imposing the stay pending appeal this

Court wrote:
In accordance with the Supreme Courts issuance of a stay in Herbert v. Kitchen,
U.S. , 134 S. Ct. 893, 187 L.Ed.2d 699 (2014), and consistent with the
reasoning provided in Bishop and Bostic, this Court stays execution of this
preliminary injunction pending the final disposition of any appeal to the Fifth
Circuit Court of Appeals.
De Leon, 975 F. Supp. 2d at 666. That decision was issued nearly nine months ago, and the basis
for the stay no longer exists. In light of these changes, the stay is no longer warranted.
Most notably, on October 6, 2014, the Supreme Court denied certiorari in appeals from
the Fourth, Seventh, and Tenth Circuits, including Herbert v. Kitchen. See Herbert v. Kitchen,
135 S. Ct. 265 (2014) (Utah); Walker v. Wolf, 135 S. Ct. 316 (2014) (Wisconsin); Rainey v.
Bostic, 135 S. Ct. 286 (2014) (Virginia); Schaefer v. Bostic, 135 S. Ct. 308 (2014) (Virginia);
Smith v. Bishop, 135 S. Ct. 271 (2014) (Oklahoma); Bogan v. Baskin, 135 S. Ct. 316 (2014)
3

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(Indiana). Each of the appeals arose out of appellate court decisions holding that laws
prohibiting and denying recognition of same-sex marriages are unconstitutional. Kitchen v.
Herbert, 755 F.3d 1193 (10th Cir. 2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014); Bostic v.
Schaefer, 760 F.3d 352 (4th Cir. 2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014). As a
result, gay men and lesbians in those states can marry, and those states must recognize their
lawful out-of-state marriages. Since the denial of certiorari, the Supreme Court denied stays in
cases from Alaska and Idaho. Parnell v. Hamby, No. 14A413, 2014 WL 5311581, at *1 (U.S.
Oct. 17, 2014); Otter v. Latta, 135 S. Ct. 345 (2014). Just days ago, the Supreme Court lifted a
stay that it briefly had granted from an appeal striking down Kansas laws prohibiting and
denying recognition to same-sex marriages. Moser v. Marie, No. 14A503, 2014 WL 5816952, at
*1 (U.S. Nov. 10, 2014) vacated No. 14A503, 2014 WL 5847590 (U.S. Nov. 12, 2014). And,
just last week, the Supreme Court refused to stay a decision from South Carolina finding that
states ban on same-sex marriages was unconstitutional. Wilson v. Condon, No. 14A533, 2014
WL 6474220 (U.S. Nov. 20, 2014).
Thus, the circumstances that existed when this Court stayed the preliminary injunction no
longer exist. The stay was premised on the Supreme Courts stay in Herbert, a case that the
Supreme Court since refused to review. Moreover, more recent decisions lifting and denying
stays establish that there is no need to prevent gay men and lesbians from marrying pending the
outcome of appeals from decisions striking down unconstitutional state laws. Accordingly, this
Court should follow the Supreme Courts lead and lift the stay it previously imposed.

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II.

THE STAY CAUSES GRAVE HARM TO PLAINTIFFS.

This Court expressly found that the denial of the fundamental right to marry causes

irreparable harm. De Leon, 975 F. Supp. 2d at 663 64 (Federal courts at all levels have
recognized that violation of constitutional rights constitutes irreparable harm as a matter of
law. Not only have Plaintiffs suffered financial harm and expenses due to their inability to
marry (e.g., adoption expenses), but they correctly note that no amount of money can
compensate the harm for the denial of their constitutional rights.) (internal citations omitted).
Since it issued its decision, Plaintiffs continue to suffer irreparable harmonly now the potential
consequences are graver.
Plaintiffs Dimetman and De Leon are expecting their second child. Dimetman is
pregnant, and the baby is due on March 15, 2015. See Declaration of Nicole Dimetman in
Support of Motion to Advance Case for Hearing (5th Cir. Case No. 14-50196, filed Oct. 6, 2014)
(attached hereto as Exhibit A). If the State of Texas refuses to recognize Dimetman and De
Leons marriage, validly performed in Massachusetts, De Leon will not be the childs legal
parent until she formally adopts the child. See Tex. Family Code 160.703 (providing that if a
husband consents to his wifes assisted reproduction, he is the father of the child). As a result,
Dimetman and De Leon will suffer the substantial uncertainty, time, and cost required for De
Leon to legally adopt the child. More importantly, the unborn baby will be exposed to great
uncertainty and insecurity if, for some reason, Dimetman is rendered incapable of caring for the
newborn child. If Dimetman did not survive childbirth, the baby will be an orphan without a
parent directing the babys care. If Dimetman is otherwise incapacitated, De Leons right and
ability to care for the child will be far from assured, as she will not have parental rights until the
adoption is completed. Thus, De Leon may not be able to rock the baby to sleep; she may not be
able to comfort the baby when he or she is upset; or she may not be able to direct the babys
5

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medical care. Adoption takes time, and if something happens to Dimetman, time will not be a
luxury that De Leon and the baby have. No married heterosexual couple has to endure such
uncertainties while awaiting the birth of their child. These harms cannot persist when the Court
has found the laws that causes them are unconstitutional.
These are legitimate concerns not just for Dimetman and De Leon, but for all same-sex
couples that are waiting to marry and have their marriages recognized. The uncertainty that
Dimetman and De Leon face, and the risk their unborn child faces, is common among same-sex
parents and their children. As Gary Gates explains in an amicus brief filed with the Fifth Circuit
in the appeal from this Courts injunction, nationally, more than 125,000 same-sex-couple
households include nearly 220,000 children. Amicus Br. of Gary J. Gates in Support of
Plaintiffs-Appellees and Affirmance, at 12, De Leon v. Perry, No. 14-50196 (5th Cir. filed Sept.
15, 2014) (attached as Exhibit B). In Texas, there are nearly 19,000 children in same-sex-couple
households, and 58% of children being raised by same-sex couples are biological children. Id.
at 13 - 14. These families suffer the same hardships and uncertainty that Dimetman, De Leon,
and their family presently face. The harm caused to these familiesespecially their children
increases with each day the State continues to deny them the benefits and obligations of
marriage.
Defendants continued denial of the right to marry and refusal to recognize lawful out-ofstate marriages similarly harms couples without children, like Plaintiffs Holmes and Phariss.
Should Holmes or Phariss die before marrying, the surviving partner would be denied rights that
married widows receive, such as survivor benefits to social security and military pensions and
basic inheritance rights. They would never experience the joy of a weddingto have friends and
family celebrate their union and to hold themselves out as spouses. Most importantly, they

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would never enjoy the validation of their relationship in the eyes of the State. Holmes and
Phariss are not unique. These are indignities and risks all of the hundreds of thousands of Texas
same-sex couples are forced to endure until they are finally allowed to marry. These risks are not
speculative and cannot be cured afterwards. Indeed, one of the plaintiffs in lawsuits in
Pennsylvania passed away before being able to marry. Kaitlynn Riely, Obituary: Fredia
Hurdle/Among plaintiffs in Pa.s gay marriage case, Pittsburgh Post-Gazette (Aug. 12, 2014).2
Holmes and Phariss applied for a marriage license on October 3, 2013more than 14 months
agoa wait no heterosexual couple must endure. These harms should not continue when the
Court has held the laws that cause them are unconstitutional.
These are real and tangible risks that same-sex couples face every day they are denied the
right to marry and to have their out-of-state marriages recognized. Section 32the laws that
create these risksis, as this Court held, unconstitutional. The Court should lift the stay
immediately and prevent Plaintiffs from needlessly suffering as a result of the unconstitutional
laws.

Conclusion
For the reasons set forth above, the Court should lift the stay of the injunction.

Available at http://www.post-gazette.com/news/obituaries/2014/08/11/Obituary-Fredia-Hurdle-Amongplaintiffs-in-Pa-s-gay-marriage-case/stories/201408110049#ixzz3A5m9N8eT

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

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CERTIFICATE OF CONFERENCE
I certify that counsel for Plaintiffs conferred with counsel for Defendants. Defendant
Rickhoff is not opposed to the relief requested in this motion. Defendants Perry, Lakey, and
Abbott oppose the relief requested in this motion.
By:

/s/ Daniel McNeel Lane, Jr._______

Daniel McNeel Lane, Jr.

CERTIFICATE OF SERVICE
I certify that on November 24, 2014, I served Defendants a copy of the foregoing
document via the Courts ECF system.
By:

/s/ Daniel McNeel Lane, Jr._______

Daniel McNeel Lane, Jr.