WENEXAS UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

Transcription

1 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 1 of 48 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION FEB CLERK, U.S. DISTRICT URT WENEXAS CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, and MARK PHARISS, Plaintiffs, vs. 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. Cause No. SA-13-CA OLG ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION On this day the Court considered Plaintiffs' Opposed Motion for Preliminary Injunction (docket no. 28) and attached exhibits (docket no. 29), Defendants' response in opposition (docket nos. 40 and 41), Plaintiffs' reply (docket no. 52), and the parties' oral argument held on February 12, Plaintiffs in this lawsuit include two couples: a gay couple who wishes to marry in the State of Texas but who is unable to do so because the Texas Constitution prohibits same-sex marriage, and a lesbian couple who married in Massachusetts, a state that allows same-sex marriage, and who now seek to have their marriage recognized in Texas. Plaintiffs challenge Texas' prohibition on same-sex marriage, set forth in Article I, Section 32 of the Texas Constitution and corresponding provisions of the Texas Family Code (hereinafter "Section 32"). They argue that the state's ban on same-sex marriage violates their rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution. Accordingly, Plaintiffs seek a preliminary injunction enjoining Defendants from

2 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 2 of 48 enforcing Section 32, and a declaratory judgment that Texas' ban on same-sex marriage and Texas' failure to recognize out-of-state same-sex marriages is unconstitutional. Regulation of marriage has traditionally been the province of the states and remains so today. However, any state law involving marriage or any other protected interest must comply with the United States Constitution. In United States v. Windsor, U.S. -, 133 S. Ct (2013), the United States Supreme Court recently held that the federal government cannot refuse to recognize a valid state-sanctioned same-sex marriage. Now, the lower courts must apply the Supreme Court's decision in Windsor and decide whether a state can do what the federal government cannotdiscriminate against same-sex couples. The issue before this Court is whether Texas' current definition of marriage is permissible under the United States Constitution. After careful consideration, and applying the law as it must, this Court holds that Texas' prohibition on same-sex marriage conflicts with the United States Constitution's guarantees of equal protection and due process. Texas' current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason. Accordingly, the Court finds these laws are unconstitutional and hereby grants a preliminary injunction enjoining Defendants from enforcing Texas' ban on same-sex marriage. I. BACKGROUND A. The Plaintiffs The Plaintiffs in this case are two couples who either desire to marry in Texas or are legally married in another state and now wish to have their same-sex marriage recognized in Texas. The following facts regarding the parties in this case are undisputed and established in the pleadings and supporting declarations.

3 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 3 of Cleopatra de Leon and Nicole Dimetman Plaintiffs De Leon and Dimetman have been in a committed relationship since they met in De Leon is a United States Air Force veteran. She was on active duty for four years and served six years in the Texas Air National Guard. De Leon was honorably discharged after ten years of service. At the time she met Dimetman, De Leon was serving in the Texas Air National Guard while also working as a statistical analyst. Dimetman was running her own business. As a couple, De Leon and Dimetman have supported one another as they pursued further education. During their time together, De Leon attended and completed graduate school, receiving a Master's degree in Applied Statistics from the University of Texas at San Antonio. Meanwhile, Dimetman attended the University of Texas Law School and became an attorney licensed to practice in the State of Texas. De Leon and Dimetman continue to share finances, live together, and have a loving, stable relationship. De Leon and Dimetman wanted to have a family, and it was important to them to marry one another before they became parents. The couple wanted to marry in Texas, their home state, but Section 32 prevented them from doing so. Therefore, they chose to marry in Massachusetts, a state that recognizes same-sex marriage. They married in Boston on September 11, 2009, after having an eight-year solid, loving relationship. In 2012, De Leon and Dimetman became parents to a child, C.' Although De Leon is C's biological mother, both her and Dimetman consider themselves C's mothers. They both share child-rearing duties and obligations. Because Texas does not recognize same-sex marriage, Dimetman could not be considered C's legal parent without going through the adoption process. Therefore, to obtain recognition as C's parent, Dimetman formally adopted C at considerable expense. 1 The Court uses the letter C in referring to Plaintiffs' child in order to protect his/her identity. 3

4 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 4 of Victor Holmes and Mark Phariss Plaintiffs Holmes and Phariss met in the spring of At the time, Holmes was in the Air Force and stationed in San Antonio. Phariss was and remains an attorney licensed to practice in Texas. The couple quickly developed a friendship that became a dating relationship. On August 9, 1997, the couple went on their first date. They celebrate August 9 as their anniversary. After dating for several months, Holmes and Phariss started living together. Holmes, who joined the Air Force when he was eighteen, began a military program to become a physician's assistant. After completing the program, the Air Force stationed Holmes at different bases throughout the country. Because Phariss continued to live and work in Texas, he and Holmes spent the next eleven years in a long-distance relationship. Depending on where Holmes was serving, Phariss and Holmes would travel as often as every week to see each other. During Holmes' final assignment at Sheppard Air Force base in Wichita Falls, Texas, Holmes and Phariss generally saw one another each weekend and on special occasions during the week. Holmes honorably served our nation for nearly twenty-three years and retired as a Major at the end of After enduring an eleven-year, long-distance relationship, Holmes and Phariss were able to live together again. Holmes and Phariss now want to marry in Texas. On October 3, 2013, the couple applied for a marriage license at the Bexar County Clerk's office, but Defendant Gerard Rickhoff refused to issue one because Holmes and Phariss are both men. B. The Defendants Defendant Rick Perry is the Governor of Texas, and Defendant Greg Abbott is Texas' Attorney General. They are both responsible for executing and defending the laws of the State of Texas and its Constitution. 4

5 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 5 of 48 Defendant Gerard Rickhoff is the Bexar County Clerk. His duties include providing marriage applications, issuing marriage licenses, and determining whether individuals meet the requirements for marriage. Defendant David Lakey is the Commissioner of the Texas Department of State Health Services, which includes the bureau of vital statistics. He is responsible for prescribing and furnishing to local clerks' offices the marriage forms that require applicants to list the names of a "bride" and a "groom." C. Texas Laws at Issue Plaintiffs seek this Court to preliminarily enjoin Defendants from enforcing Article I, Section 32 of the Texas Constitution and corresponding provisions in the Texas Family Code that ban same-sex marriage. This Order addresses these laws and the corresponding legislative history leading to their enactment. 1. Texas Family Code and the initial state ban on same-sex marriage The Texas legislature's ban on same-sex marriage dates back to 1997 when Section of the Texas Family Code was enacted. Section prohibits the clerk of any Texas county from issuing a marriage license to persons of the same gender. See TEx. FAM. CODE ANN (b) (West 2013). In 2003, the Texas legislature amended the Texas Family Code to add Section 6.204, which among other things, prohibits recognition in Texas of lawful same-sex marriages executed in other jurisdictions.2 Section declares void all marriages between persons of the same sex and all civil unions. TEx. FAM. CODE ANN (b). It also prohibits the State and any of its agencies and political subdivisions from giving effect to any: 2 See Act of Sept. 1, 2003, 78th Leg., R.S., ch. 124, 1 (West 2003); TEx. FAM. CODE ANN (West 2013). 5

6 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 6 of 48 (1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in the state or in any other jurisdiction; or (2) 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 Ai' (c). Supporters of Section claimed: The protective marriage relationship between a man and a woman is a fundamental institution whose purpose is the propagation of the species in humanity's collective interest. The state has an interest in protecting this relationship, because it gives women and children the surest protection against poverty and abuse, provides for the healthy psychological development of children, and avoids health risks of same-sex relations and promiscuity. The state's recognition of same-sex marriages would undermine the institution of marriage and society's ability to transmit its values to younger generations. HOUSE RESEARCH ORG., Focus REPORT, MAJOR ISSUES OF THE 78TH LEG., REG. SESS., No , at 83 (Tex. Aug. 6, 2003). In addition to the grounds cited in the legislative report, supporters of the bill claimed it was necessary to prohibit the recognition of out-of-state civil unions because these: (1) "would create a new class of children without mothers or fathers" that "would increase costs to corporations and governmental entities;" (2) "could lead to the recognition of bigamy, incest, pedophilia, and group marriage," and (3) "[i]f the state does not draw the line here, it would be difficult to draw it anywhere." See HOUSE RESEARCH ORG., DAILY FLOOR REPORT, 78TH LEG., REG. SESS., at (Tex. Apr. 29, 2003). 2. Texas Cons/itutionalAmendment Article I, Section 32 of the Texas Constitution began as House Joint Resolution No. 6 (hereinafter "H.J.R. 6"), which proposed to amend the Texas Constitution to define marriage as "the union of only one man and one woman." H.J.R. Res. 6, 79th Leg., Reg. Sess. (Tex. 2005). On April 25, 2005, subdivision (b) was added, which expressly bars the State and any political 6

7 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 7 of 48 subdivision thereof from creating or recognizing any legal status identical or similar to marriage. See TEx. CONST. art. I, 32(b). The legislative history of H.J.R. 6 shows that the amendment was supported by the same purported rationale as Section of the Texas Family Code. The primary argument in support of H.J.R. 6 was: [T]raditional marriage consisting of a man and a woman is the basis for a healthy, successful, stable environment for children. It is the surest way for a family to enjoy good health, avoid poverty, and contribute to their community. The sanctity of marriage is fundamental to the strength of Texas' families, and the state should ensure that no court decision undermine this fundamental value. HOUSE RESEARCH ORG., H.J.R. 6 BILL ANALYSIS, 79TH LEG., REG. SESS., at 3-4 (Tex. Apr. 25, 2005). The authors of the amendment drafted it to preclude not only same-sex couples from marrying, but also any "separate but equal" same-sex institution, such as a civil union. See HOUSE RESEARCH ORG., FOCUS REPORT, AMENDMENTS PROPOSED FOR NOVEMBER 2005 BALLOT, No , at 9 (Tex. Sept. 15, 2005) (noting civil unions should not be permitted because they would be a "way for same-sex couples to circumvent laws protecting marriage by creating a legal arrangement that is substantially the same as marriage"). H.J.R. 6 passed following votes in both houses of the Texas legislature. Under Texas law, the governor's approval is not necessary to put a proposed constitutional amendment on an electorate ballot. See TEx. CONST. art. 17, 1(a). Nevertheless, in early June 2005, Governor Rick Perry signed the proposed constitutional amendment at the Calvary Christian Academy in Fort Worth, Texas. After approval by the Texas legislature and Defendant Perry, H.J.R. 6 was placed on the electorate ballot in 2005 as Proposition 2. Proposition 2 passed with approximately 76% of the 7

8 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 8 of 48 vote. As a result, Article I of the Texas Constitution now includes the following amendments under Section 32: (a) Marriage in this state shall consist only of the union of one man and one woman. (b) This 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. D. National Debate on Same-Sex Marriage In the last couple of decades, our nation has experienced a politically charged and controversial debate regarding the right to marry, and particularly, the right of same-sex couples to marry in the United States. Both state and federal governments have taken center stage in this debate, participating in court proceedings or enacting legislation that either supports or bans same-sex marriage. 1. Other states 'positions on same-sex marriage In 1993, the Hawaii Supreme Court was the first court that opened the door to same-sex marriage, holding that the state's prohibition on same-sex marriage was discriminatory under the Hawaii Constitution. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 59 (1993). The court remanded the case to allow the state to justify its position and show if the marriage statute was narrowly drawn to further a compelling state interest. Id. at 68. In 1999, the Vermont Supreme Court held that the state of Vermont was required to offer all the benefits of marriage to same-sex couples. Baker v. Vermont, 170 Vt. 194, 744 A.2d 864, (1999). The determination of whether to provide such benefits to same-sex partners by including them within the marriage statutes, or by creating a parallel domestic partnership system On remand, the circuit court held Hawaii's marriage statute was unconstitutional. Baehr v. Mike, Civ. No , 1996 WL , at *22 (Haw. Cir. Ct. Dec. 3, 1996). The government was unable to show the statute furthered a compelling state interest. Id. at *21. 8

9 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 9 of 48 or some equivalent statutory alternative, was left to the Vermont legislature. See id. at 886. The Vermont legislature complied with this mandate by creating a legal status for civil unions. See An Act Relating to Civil Unions, 2000 Vt. Acts & Resolves 91 1(1) (legislative findings). This was the nation's first law granting gay couples nearly all marriage benefits through the formation of a civil union.4 The reaction to this legislation was immediate and visceral in the next few years. See Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL , at *2 n. 1 (W.D. Ky. Feb. 12, 2014) (citing statutes from over twenty-seven states that enacted anti-same-sex marriage legislation). Then, in 2003, two cases significantly changed the treatment and protection of homosexuals under the law. First, the United States Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment protected the sexual relations and privacy of gay men and lesbians. Lawrence v. Texas, 539 U.S. 558, 578 (2003). Second, the Massachusetts Supreme Court declared that the Massachusetts constitution protected the right of same-sex couples to marry, and therefore, that the state's ban on same-sex marriage violated its own state constitution. Goodridge v. Dep 't of Pub. Health, 798 N.E. 2d 941, 948, 969 (Mass. 2003). Since 2003, states continue to have polarizing views on the issue of same-sex marriage; that is, most states have either legalized same-sex marriage or passed a constitutional amendment or other legislation prohibiting same-sex marriage and civil unions. To this day, six states have legalized same-sex marriage through state court decisions (California, Connecticut, Iowa, Massachusetts, New Jersey, New Mexico); eight states have passed same-sex marriage legislation (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island, Vermont); and three states have legalized same-sex marriage through popular vote (Maine, "In September 1, 2009, the Vermont legislature later permitted same-sex marriage through a statute. See 15 V.S.A. 9, which redefines marriage as the "legally recognized union of two people." 9

10 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 10 of 48 Maryland, Washington). See Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL , at *5 4 (D. Utah Dec. 20, 2013). 2. Federal government and same-sex marriage The federal government has also participated in the same-sex marriage debate. In 1996, Congress passed the Defense of Marriage Act (DOMA), which, among other things, barred federal recognition of same-sex marriages deemed legal in other states and barred same-sex civil unions for purposes of federal law. Act. of Sept. 21, 1996, Pub. L , 110 Stat In 2013, the Supreme Court held in United States v. Windsor that Section 3 of DOMA was unconstitutional. 133 S. Ct. at That same year, the Supreme Court also considered an appeal from a case involving California's Proposition 8. After the California Supreme Court held that California's constitution recognized same-sex marriage, In re Marriage Cases, 43 Cal 4th 757, 76 Cal. Rptr. 3d 683, 183 P.3d 384 (2008), California voters passed Proposition 8 in November 2008, which amended California's constitution to prohibit same-sex marriage. Then, a California federal court determined that Proposition 8 violated the guarantees of equal protection and due process under the United States Constitution. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1003 (N.D. Cal. 2010). The Ninth Circuit Court of Appeals affirmed the district court's holding in Perry v. Brown, 671 F.3d 1052, 1095 (9th Cir. 2012), rev'd, Ct (2013). The case was then appealed to the Supreme Court, but the Court did not address the merits of the question presented. Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013). Instead, the Court vacated the Ninth Circuit's opinion for lack of jurisdiction, finding the proponents of Proposition 8 did not have standing to appeal the district court's decision after California officials refused to defend the law. Id. 10

11 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 11 of 48 Most recently, six federal district courts have issued decisions declaring states' bans on same-sex marriage to be unconstitutional. See Lee v. Orr, No. 13-cv-8719, 2014 WL (N.D. Ill. Feb. 21, 2014) (applied only to Cook County, Illinois); Bostic v. Rainey, No. 2:13-cv- 395, 2014 WL (E.D. Va. Feb. 13, 2014) (Virginia); Bourke, 2014 WL (Kentucky); Bishop v. United States ex rel. Holder, No. 04-cv-848-TCK-TLW, 2014 WL (N.D. Okia. Jan. 14, 2014) (Oklahoma); Obergefell v. Wymyslo, No. 1:13-cv-501, 2013 WL (S.D. Ohio Dec. 23, 2013) (Ohio); Kitchen, 2013 WL (Utah). II. ANALYSIS A. Preliminary Matters 1. Plaintiffs' standing As a preliminary matter, the Court notes that Defendants' pleadings and written briefs neither address nor challenge Plaintiffs' standing in this case.5 However, the Court addresses the issue of standing as it is one of subject-matter jurisdiction. See Cobb v. Central States, 461 F.3d 632, 635 (5th Cir. 2006). Federal courts have no jurisdiction unless a case or controversy is presented by a party with standing to litigate. Taylor ex rel. Gordon v. Livingston, 421 F. App'x 473, 474 (5th Cir. 2011) (quoting Nevares v. San Marcos Consol. md. Sch. Dist., 111 F.3d 25, 26 (5th Cir. 1997)). A plaintiff must meet three elements to establish standing. First, a plaintiff must have suffered an injury in fact which is concrete and particularized. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Second, a plaintiff must establish a causal connection between the injury and the conduct complained of Id. Third, it must be likely, as opposed to merely In the preliminary injunction hearing, Defendants mentioned, for the first time, that Plaintiffs had "not made a clear showing that they ha[d] standing to raise claims" in this case, because they had not explained what injury they had suffered. Oral Arg. Tr. p

12 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 12 of 48 speculative, that the injury will be redressed by a favorable decision. Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.s. 26, 38 (1976)). There is no dispute that Plaintiffs are loving couples in long-term committed relationships, who seek to marry in Texas or have their out-of-state same-sex marriage recognized in Texas. Plaintiffs claim they have suffered real and particularized injuries as a direct result of Defendants' enforcement of Texas' laws banning same-sex marriage. These injuries include far-reaching legal and social consequences, along with the pain of humiliation, stigma, and emotional distress. For example, Plaintiffs note that Texas' refusal to marry or recognize same-sex marriage denies them many state law benefits. Plaintiffs argue that, among other things, current Texas laws do not allow them to: (1) claim statutory protections afforded to married couples upon the death of a spouse, such as intestacy rights. TEx. PROBATE CODE 38, 45; (2) bring an action for wrongful death. TEx. Civ. PRAC. & REM. CODE ; (3) claim certain protections against the partition of the homestead following the death of a spouse. TEX. CONST. art. 16, 52; (4) receive the community property presumption afforded to married couples. TEx. FAM. CODE 3.003; (5) petition the court for an equitable division of community property, including rights in any pension or retirement plan. TEX. FAM. CODE , 7.003; (6) seek spousal maintenance if they separate or divorce. TEX. FAM. CODE ; (7) enjoy the benefit of the "zone of privacy" that heterosexual married couples enjoy in the form of evidentiary privileges between spouses. TEx. R. EvID. 504; 12

13 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 13 of 48 (8) enjoy succession rights under state laws of intestacy. TEx. PROB. CODE 45; or (9) have the right to make burial or other decisions regarding the handling and disposition of one another's remains. On October 3, 2013, Plaintiffs Holmes and Phariss applied for a marriage license from the Bexar County Clerk Rickhoff' s office. Defendant Rickhoff refused to issue a license because Holmes and Phariss are both men. This denial establishes an Article III injury. See Parker v. D.C., 478 F.3d 370, 376 (D.C. Cir. 2007) (holding that courts have consistently treated a license or permit denial pursuant to a state or federal administrative scheme as an Article III injury); see also Bishop, 2014 WL , at *14 (noting couple proved standing because they sought marriage license and were denied such license because of their same-sex couple status); see also Bostic, 2014 WL , at *14. Meanwhile, Plaintiffs De Leon and Dimetman contend that because Texas does not recognize same-sex marriage, Dimetman could not be considered their child's legal parent unless she went through the long administrative and expensive process of adoption. The Court finds these monetary damages constitute a concrete, injury in fact suffered by Plaintiffs due to Texas' ban on same-sex marriage. Furthermore, Plaintiffs allege they have suffered state sanctioned discrimination, stigma, and humiliation as a result of Texas' ban on same-sex marriage. Plaintiffs claim they are considered inferior and unworthy under Texas law. Stigmatic injury is a form of injury that supports standing in this case. See Allen v. Wright, 468 U.S. 737, 755 (1984) (finding that stigmatic injury often caused by discrimination is a type of noneconomic injury that may be sufficient to support standing); see also Bostic, 2014 WL , at *14 (same). In this case, it is clear that Plaintiffs suffer humiliation and discriminatory treatment under the law on the basis of their sexual orientation, and this stigmatic harm flows directly from Texas' ban on same-sex 13

14 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 14 of 48 marriage. See Bishop, 2014 WL , at *9 Furthermore, in equal protection cases when the government erects a barrier to prevent one group from obtaining a benefit that another group receives, "[t]he injury in fact... is the denial of equal treatment resulting from the imposition of the barrier." Ne. Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of Jacksonville, F/a., 508 U.s. 656, 666 (1993). Accordingly, the Court finds all Plaintiffs in this case have established the denial of equal treatment under Texas law. The Court finds Plaintiffs have satisfied the first standing requirement by establishing they have suffered injuries. Plaintiffs have also established the causation element needed for standing, as the injuries raised are directly related to Texas' ban on same-sex marriage. See Lujan, 504 U.s. at 560. Finally, the Court finds Plaintiffs meet the third standing requirement. If this Court issues an injunction prohibiting Defendants from enforcing Texas' marriage laws, Plaintiffs' injuries will be redressedplaintiffs would be allowed to marry, or have their out-of-state same-sex marriage recognized in Texas. This would allow Plaintiffs to be eligible for the many state-law benefits they are now denied. Accordingly, the Court finds Plaintiffs have standing to bring the claims before this Court. 2. Baker v. Nelson 's Precedential Value The next preliminary matter involves Defendants' assertion that Plaintiffs' claims are foreclosed by Supreme Court precedent in Baker v, Nelson, 409 U.S. 810 (1972). In 1971, two men from Minnesota brought a lawsuit in state court arguing that Minnesota was constitutionally required to allow same-sex marriage. Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972). The Minnesota Supreme Court found that Minnesota's restriction of marriage to opposite-sex couples did not violate either the equal protection or the due process clause of the Fourteenth Amendment. Id. at On appeal, the United States 14

15 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 15 of 48 Supreme Court summarily dismissed the case "for want of a substantial federal question." Baker, 409 U.S. at 810. As a result, Defendants contend that the Court's summary dismissal in Baker is binding on this Court and the present lawsuit should be dismissed for lack of a substantial federal question. There is no dispute that summary dispositions by the Supreme Court are considered precedential and binding on lower courts. See Mandel v. Bradley, 432 U.S. 173, 176 (1977) (noting summary dispositions prevent lower courts from coming to opposite conclusions on the issues presented and decided by those actions). There is also no dispute that the questions presented in Baker are similar to the questions presented here. Both cases involve challenges to the constitutionality of a state statute which prohibits same-sex marriage. The ruling of the Supreme Court of Minnesota rejected due process and equal protection arguments similar to those presented by Plaintiffs in this case. However, summary dispositions may lose their precedential value and are no longer binding "when doctrinal developments indicate otherwise." Hicks v. Miranda, 422 U.S. 332, 344 (1975) (quoting Port Auth. Bondholder 's Protective Comm. v. Port ofny. Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967)). Baker was decided more than forty years ago. This Court finds that subsequent doctrinal and societal developments since 1972 compel this Court to conclude that the summary dismissal in Baker is no longer binding, and that the issue of same-sex marriage now presents a substantial federal question. First, in 1973, the Supreme Court recognized that sex is a quasi-suspect classification. See Frontiero v. Richardson, 411 U.S. 677, 688 (1973). Then, the Supreme Court recognized a new form of heightened scrutiny and applied it to sex-based classifications. See Lalli v. Lalli, 439 U.S. 259, (1978); Craig v. Boren, 429 U.S. 190, (1976). In 1996, the Supreme Court held that a Colorado constitutional amendment targeting homosexuals based 15

16 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 16 of 48 upon animosity lacked a rational relation to any legitimate governmental purpose. See Romer v. Evans, 517 U.S. 620, (1996) (citing Dep't ofagr. v. Moreno, 413 U.S. 528, 534 (1973)) ("[I]f the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare... desire to harm a politically unpopular group carmot constitute a legitimate governmental interest.") (emphasis added). Then, in 2003, the Court held that homosexuals had a protected liberty interest to engage in private, sexual activity; that homosexuals' moral and sexual choices were entitled to constitutional protection; and that moral disapproval did not provide a legitimate justification for a Texas law criminalizing sodomy. See Lawrence, 539 U.S. at 564, 571. The Court held that the Constitution protects "personal decisions relating to marriage, procreation, contraception, family relationships, [and] child rearing" and that homosexuals "may seek autonomy for these purposes." Id. at 574. Most recently, in 2013, the United Supreme Court held that the Constitution prevented the federal government from treating state-sanctioned heterosexual marriages differently than state-sanctioned same-sex marriages, and that such differentiation "demean[ed] the couple, whose moral and sexual choices the Constitution protects." See Windsor, 133 S. Ct. at Notably, that same year, while the Court declined to reach the merits in Perry v. Hollingsworth because the petitioners lacked standing to pursue the appeal, the Court did not dismiss the case outright for lack of a substantial federal question. See 133 S. Ct. at Accordingly, the Court finds that these cases present the type of doctrinal developments that render Baker's summary dismissal of no precedential value. It is now clear that while state bans on same-sex marriage may have been deemed an "unsubstantial" question in 1972, the issue is now a "substantial" federal question based on doctrinal developments in Supreme Court law. 16

17 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 17 of 48 See Windsor v. United States, 699 F.3d 169, 178 (2d Cir. 2012), aff'd, 133 S. Ct (2013) (holding that Baker was not controlling as to the constitutionality of DOMA, reasoning that "[i]n the forty years after Baker, there have been manifold changes to the Supreme Court's equal protection jurisprudence" and that "[e]ven if Baker might have had resonance... in 1971, it does not today") Defendants in this case allege that, despite the doctrinal developments in the above- mentioned cases, some courts have found that Baker survives as controlling precedent and precludes consideration of the issues in this lawsuit. During oral argument, Defendants referred to Merritt v. Attorney General, No. 3:13-cv-215-BAJ-SCR, 2013 WL (M.D. La. Nov. 14, 2013) as support for their argument that Baker precludes this Court from analyzing the merits of Plaintiffs' claims. Oral Arg. Tr. p. 36. In Merritt, the court considered a pro Se, in forma pauperis, plaintiffs lawsuit challenging Louisiana's ban on same-sex marriages. Id. at * 1. The plaintiff was a detainee at the East Louisiana Mental Health System Forensic Unit. Id. Following a show cause order and no briefing, the court dismissed plaintiffs complaint noting the "Constitution does not require States to permit same-sex marriages;" the unidentified state legislators named as defendants were "entitled to absolute immunity from liability under 1983 for their legislative activities;" and the plaintiff failed to allege any facts against the Attorney General. Id. at *2. The court in Merritt did not indicate the bases for its ruling. Furthermore, the viability of Baker was never briefed in Merritt. In fact, the plaintiff did not submit briefing on any substantive issue. Therefore, this Court does not find Merritt to be persuasive in this case and declines to follow it. Rather, this Court joins four recent district court decisions rejecting the argument that Baker still has precedential value and bars courts from addressing the issue of 17

18 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 18 of 48 same-sex marriage. See Bostic, 2014 WL , at *9_lU; Bourke, 2014 WL , at *1; Bishop, 2014 WL , at *15_17; Kitchen, 2013 WL , at *7_9 The Court finds Baker is not controlling and does not bar this Court from reviewing Plaintiffs' claims in this case. B. Preliminary Injunction The Court now considers Plaintiffs' constitutional challenges to Texas' laws banning same-sex marriage in the context of the preliminary injunction Plaintiffs seek. 1. Standard of Review A plaintiff requesting the extraordinary remedy of a preliminary inj unction must establish the following four factors: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure to grant the injunction will result in irreparable injury; (3) the threatened injury outweighs any damage that the injunction may cause the opposing party; and (4) the injunction will not disserve the public interest. Winter v. Natural Res. Def Council, Inc., 555 U.s. 7, 20 (2008); Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1050 (5th Cir. 1997). 2. Application (A) Likelihood of Success In order to determine whether Plaintiffs are likely to prevail on the merits, this Court must address Plaintiffs' constitutional challenges to Texas' marriage laws, primarily Section 32. Plaintiffs contend that Texas' refusal to allow and recognize same-sex marriage violates their equal protection and due process rights under the Fourteenth Amendment. (i) Equal Protection Challenge Plaintiffs in this case contend that Texas' refusal to allow them to marryor refusal to recognize their state-sanctioned out-of-state marriagepursuant to Article I, Section 32 of the 18

19 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 19 of 48 Texas Constitution deprives them of equal protection. The Equal Protection Clause of the Fourteenth Amendment commands that no state shall deny to any person within its jurisdiction the equal protection of the laws. See U.S. CONST. amend. XIV, 1. This essentially means that all persons similarly situated should be treated alike. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). The Constitution "neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.s. 537, 559 (1896) (Harlan, J., dissenting). While a "law enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons," it must nevertheless, at least, "bear a rational relationship to a legitimate governmental purpose." Romer, 517 U.S. at 635. Plaintiffs argue that refusing to permit a same-sex couple to marry under Section 32(a), and failing to recognize legal out-of-state same-sex marriages pursuant to Section 32(b), "demeans the couple, whose moral and sexual choices the Constitution protects." Windsor, 133 S. Ct. at 2694 (citing Lawrence, 539 U.S. at 588). Just like the federal law the Court in Windsor reviewed, Section 32 identifies a "subset" of relationships (i.e. same-sex relationships) for which Texas denies the same equal rights, responsibilities, and benefits that opposite-sex couples receive through marriage. Therefore, Plaintiffs contend Section 32 is subject to equal protection review. Laws reviewed under the Equal Protection Clause are subject to one of three levels of scrutiny: strict scrutiny, intermediate scrutiny, or rational basis review. Clark v. Jeter, 486 U.S. 456, 461 (1988). Strict scrutiny applies to suspect classifications based on race, alienage, or national origin. City of Cleburne, 473 U.S. at 440. Under strict scrutiny review, a state must show the challenged classification is narrowly tailored to further a compelling governmental 19

20 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 20 of 48 interest. Grutter v. Bollinger, 539 U.S. 306, 326 (2003). Intermediate or heightened scrutiny applies to quasi-suspect, discriminatory classifications based on illegitimacy and gender. Cleburne, 473 U.S. at 441. To survive heightened scrutiny review, a classification must be substantially related to a sufficiently important governmental interest. Id. All other classifications are subject to rational basis review. Id. at Under rational basis review, a classification will be upheld as long as there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Heller v. Doe, 509 U.S. 312, 319 (1993). (a) Plaintiffs argue Texas' marriage laws should be subject to heightened scrutiny Plaintiffs argue that Section 32 discriminates against them on the basis of their sexual identity in violation of the Equal Protection Clause. When a state law adversely affects members of a certain class, but does not significantly interfere with their fundamental rights, courts first determine how closely they should scrutinize the challenged regulation. Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, (1988). The Supreme Court consistently applies heightened scrutiny to laws that discriminate against a group that it considers a suspect or quasi-suspect classification, i.e. one that has experienced a "history of purposeful unequal treatment or [has] been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities." Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976). In addition to looking at a history of discrimination, courts also consider whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society, Cleburne, 473 U.S. at ; whether the distinguishing characteristic is "immutable" or beyond the group member's control, Lyng v. Castillo, 477 U.S. 635, 638 (1986); and whether the group is "a minority or politically powerless," Bowen v. Gilliard, 483 U.S. 587, 602 (1987). Plaintiffs argue that homosexuals 20

21 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 21 of 48 fulfill all four factors to be considered a suspect or quasi-suspect classification, and therefore, that this Court should review Texas' same-sex marriage ban under heightened scrutiny. Plaintiffs note that homosexuals have suffered a long history of discrimination. This long history of discrimination against homosexuals is widely acknowledged in federal American jurisprudence. See, e.g., Lawrence, 539 U.s. at 571 ("[F]or centuries there have been powerful voices to condemn homosexual conduct as immoral" and "lesbians and gay men have suffered a long history of discrimination and condemnation."); Rowland v. Mad River Local Sch. Dist., Montgomery Cnly., Ohio, 470 U.S. 1009, 1014 (1985) (J. Brennan, dissenting) ("Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is 'likely... to reflect deep-seated prejudice rather than... rationality."); High Tech Gays v. Def Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) ("[H]omosexuals have suffered a history of discrimination."); Ben- Shalom v. Marsh, 881 F.2d 454, (7th Cir. 1989) ("Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree."); Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (noting that "the strong objection to homosexual conduct... has prevailed in Western culture for the past seven centuries."). The Court agrees that throughout history, many federal and state laws have categorically discriminated against homosexuals. For example, in 1952, Congress prohibited gay men and women from entering the country. See Obergefell, 2013 WL , at *14; see also Boutilier v. INS, 387 U.S. 118, 120 (1967) (concluding that the legislative history of the Immigration and Nationality Act of 1952 "indicate[d] beyond a shadow of a doubt that the Congress intended the phrase 'psychopathic personality' to include homosexuals" and labeled homosexuals "ill"). In 1953, President Eisenhower issued an executive order requiring the discharge of homosexual 21

22 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 22 of 48 employees, among others, from all federal employment, and this policy remained in place until See Exec. Order No , 18 FR 2489 (1953); see also Employment of Homosexuals and Other Sex Perverts in Government, Interim Report submitted to the Committee by its Subcommittee on Investigations pursuant to S. Res st Congress (December 15, 1960), at 9 (finding that between 1947 to 1950, approximately 1,700 applicants for federal positions were denied employment because of their homosexuality, which was considered a "sex perversion" that made them "unsuitable" and a "security risk" for the jobs). Furthermore, until the Supreme Court's decision in Lawrence in 2003, consensual homosexual conduct was criminalized in many states. Golinski, 824 F. Supp. 2d. at Before 2011, homosexuals could not openly serve in the military, and the military still criminalizes sodomy today. Obergefell, 2013 WL , at *14. Therefore, Plaintiffs have established that homosexuals have been subjected to a long history of discrimination. Plaintiffs argue that, like other suspect classifications, sexual orientation has no "relation to [the] ability" of a person "to perform or contribute to society." CUy of Cleburne, 473 U.S. at ; see Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, (D. Conn. 2012) ("[T]he long-held consensus of the psychological and medical community is that 'homosexuality per se implies no impairment in judgment, stability, reliability or general or social or vocational capabilities.") (quoting 1973 RESOLUTION OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1002 (N.D. Cal. 2010) ("[B]y every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal."); see also Watkins v. US. Army, 875 F.2d 699, 725 (9th Cir. 1989) ("Sexual orientation plainly has no relevance to a person's ability to perform or contribute to society.") 22

23 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 23 of 48 Plaintiffs also contend sexual orientation is immutable. As the Supreme Court acknowledged, sexual orientation is so fundamental to a person's identity that one ought not be forced to choose between one's sexual orientation and one's rights as an individualeven if one could make a choice. Lawrence, 539 U.S. at (recognizing that individual decisions by consenting adults concerning the intimacies of their physical relationships are "an integral part of human freedom"). Many federal courts agree with Plaintiffs' assertion. See, e.g., Perry, 704 F. Supp. 2d at (holding sexual orientation is fundamental to a person's identity); Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (holding that sexual orientation and sexual identity are immutable). Furthermore, the scientific consensus is that sexual orientation is an immutable characteristic. See Pedersen, 881 F. Supp. 2d at (finding that the immutability of sexual orientation "is supported by studies which document the prevalence of long-lasting and committed relationships between same-sex couples as an indication of the enduring nature of the characteristic."); Perry, 704 F. Supp. 2d at 966 ("No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation."); see also G.M. Herek, et al., Demographic, Psychological, and Social Characteristics of Self-Identfled Lesbian, Gay, and Bisexual Adults in a US. Probability Sample, 7 SEXUALITY REs. & Soc. POL'Y 176, 186, 188 (2010) (noting that in a national survey, 95 percent of gay men and 84 percent of lesbian women reported that they "had little or no choice about their sexual orientation.") Finally, Plaintiffs note that homosexual citizens constitute a minority group that lacks sufficient political power to protect themselves against discriminatory laws. In fact, the history of same-sex marriage bans across the nation illustrates the historical lack of political power possessed by gays and lesbians. Plaintiffs point out that not only do homosexuals fit all factors 23

24 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 24 of 48 to be considered a suspect classification, but in fact, several courts have already admitted as much. See, e.g., SmithKline Beecham Corp. v. Abbott Labs, 740 F.3d 471, (9th Cir. 2014) (holding use of peremptory strike against gay juror failed heightened scrutiny); see also Pedersen, 881 F. Supp. 2d at 294 (finding statutory classifications based on sexual orientation are entitled to heightened scrutiny); Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968, (N.D. Cal. 2012) (same). The Court finds Plaintiffs' arguments compelling, and at this preliminary injunction stage, it shows an increased likelihood they will ultimately prevail on the merits. Likely, the Fifth Circuit, and eventually the United States Supreme Court, will weigh in on this issue with clear instructions. For now, the Court finds it is not necessary to apply heightened scrutiny to Plaintiffs' equal protection claim since Texas' ban on same-sex marriage fails even under the most deferential rational basis level of review. (b) Section 32 fails equal protection challenge even under rational basis review To survive a rational basis review, Section 32 must bear at least some rational relationship to a legitimate governmental purpose. Romer, 517 U.S. at 631; see City of Cleburne, 473 U.S. at 446 (holding that even when there is a legitimate government purpose, the discrimination must bear at least some rational relationship to that purpose); Heller, 509 U.S. at 321 (noting that rational basis test requires that the proffered justification for a law "must find some footing in the realities of the subject addressed by the legislation."). Courts insist on knowing the relation between the classification adopted and the object to be attained. Romer, 517 U.S. at 632. A law will not survive rational basis unless it is "narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s]." Id. at

25 Case 5:13-cv OLG Document 73 Filed 02/26/14 Page 25 of 48 Defendants in this case have identified two bases or purposes for Section 32: (1) to increase the likelihood that a mother and a father will be in charge of childrearing; and (2) to encourage stable family environments for responsible procreation. These bases fail rational basis review as explained below. (1) Childrearing There is no doubt that the welfare of children is a legitimate state interest; however, limiting marriage to opposite-sex couples fails to further this interest. Instead, Section 32 causes needless stigmatization and humiliation for children being raised by the loving same-sex couples being targeted. See Bostic, 2014 WL , at * 18. "Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners." Perry, 704 F. Supp. 2d at 967. Homosexual couples are as capable as other couples of raising well-adjusted children. See id. at 980 ("Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted"); Varnum v. Brien, 763 N.W.2d 862, 899 (Iowa 2009) ("Plaintiffs presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents.") Defendants have not provided any evidentiary support for their assertion that denying marriage to same-sex couples positively affects childrearing. Accordingly, this Court agrees with other district courts that have recently reviewed this issue and concludes that there is no rational connection between Defendants' assertion and the legitimate interest of successful childrearing. To the contrary, this Court finds that far from encouraging a stable environment for childrearing, Section 32 denies children of same-sex parents the protections and stability they 25