Zahrn v. Perry State Defendants' Motion to Consolidate

8/13/2019 Zahrn v. Perry State Defendants' Motion to Consolidate

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Defendants Motion to Consolidate Page 1

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

Case 1:13-cv-00631-SS Document 17 Filed 11/12/13 Page 1 of 7


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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.


6See DeLeon Complaint, 60;ZahrnComplaint,89; and see McNosky 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




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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

[email protected]

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

[email protected]

James J. Scheske, SBN 17745443

JAMES J. SCHESKE PLLC

5501-A Balcones #109Austin, TX 78731

Phone: (512) 371-1790, Fax: (512) 323-2260

[email protected]



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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]


/s/ William T. Deane

WILLIAM T. DEANE


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

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Jorgeson Pittman //P4*&* Spi#e0ood Springs "oad

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EXHIBIT A

Case 1:13-cv-00631-SS Document 17-1 Filed 11/12/13 Page 2 of 4


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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


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&'

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EXHIBIT A



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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

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6)ee a,ove (or address7


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


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


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

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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

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EXHIBIT B



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EXHIBIT C



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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


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.


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.


EXHIBIT C



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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


EXHIBIT C



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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


EXHIBIT C



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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


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


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


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


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


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


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

[email protected]


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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

[email protected]

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]


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

PLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT Page 105030373

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

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5:13-cv-982


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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

Zahrn v. Perry State Defendants' Motion to Consolidate

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Transcript of Zahrn v. Perry State Defendants' Motion to Consolidate