De Leon v. Perry

Citation975 F.Supp.2d 632
Decision Date26 February 2014
Docket NumberCause No. SA–13–CA–00982–OLG.
PartiesCleopatra 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.
CourtU.S. District Court — Western District of Texas

975 F.Supp.2d 632

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.

Cause No. SA–13–CA–00982–OLG.

United States District Court,
W.D. Texas,
San Antonio Division.

Feb. 26, 2014.






Held Unconstitutional

[975 F.Supp.2d 639]


Vernon's Ann.Texas Const.
Art. 1, § 32(a, b); V.T.C.A., Family Code §§ 2.001, 6.204

Recognized as Unconstitutional


1 U.S.C.A. § 7

Barry A. Chasnoff, Daniel McNeel Lane, Jr., Matthew E. Pepping, Akin Gump Strauss Hauer & Feld, LLP., Frank Stenger–Castro, Attorney at Law, San Antonio, TX, Jessica M. Weisel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, CA, Michael P. Cooley, Akin Gump Strauss Hauer & Feld LLP, Dallas, TX, for Plaintiff.


Michael P. Murphy, Texas Attorney General, William T. Deane, Office of the Attorney General, Austin, TX, Susan A. Bowen, San Antonio, TX, for Defendant.

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

ORLANDO L. GARCIA, District Judge.

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, 2014. 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 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. 2675, 186 L.Ed.2d 808 (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 cannot—discriminate 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,

[975 F.Supp.2d 640]

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.

1. Cleopatra de Leon and Nicole Dimetman

Plaintiffs De Leon and Dimetman have been in a committed relationship since they met in 2001. 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.1 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.

2. Victor Holmes and Mark Phariss

Plaintiffs 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 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.

[975 F.Supp.2d 641]

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 2010. 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.

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 2.001 of the Texas Family Code was enacted. Section 2.001 prohibits the clerk of any Texas county from issuing a marriage license to persons of the same gender. SeeTex. Fam.Code Ann. § 2.001(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.2Section 6.204 declares void all marriages between persons of the same sex and all civil unions. Tex. Fam.Code Ann. § 6.204(b). It also prohibits the State and any of its agencies and political subdivisions from giving effect to any:

(1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the

[975 F.Supp.2d 642]

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 Ann. § 6.204(c). Supporters of Section 6.204...

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