Zahrn v. Perry State Defendants' Motion To Consolidate

Case 1:13-cv-00631-SS Document 17 Filed 11/12/13 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION CHRISTOPHER DANIEL McNOSKY, Plaintiff, SVEN STRICKER, Plaintiff, v.
Case No. A13-CV-0631 SS
TEXAS GOVERNOR RICK PERRY, et al Defendants. 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
Defendants Motion to Consolidate Page 1
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. The De Leon case 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 States1 or attempted
See Ex. D DeLeon Plaintiffs Original Complaint, Dkt.#1 18; and Ex. C Zahrn Plaintiffs Original Complaint, Dkt.#1 37,58.. Page 2
Defendants Motion to Consolidate
to marry as a same-sex couple in Texas, and had their marriage application denied by the County Clerk on those grounds.2 Spouses 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. 8. 9. 10. 11. 14th Amendment due process claims asserted.5 42 U.S.C. 1983 claims asserted.6 14th Amendment equal protection claims asserted.7 Injunctive relief sought.8 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.
2
Second, consolidation will conserve judicial resources. All three cases contain a
See DeLeon Complaint, 30; Zahrn Complaint, 47,59; and McNosky Plaintiffs Second Amended Complaint, Dkt.#10, 8. 3 See DeLeon Complaint, 1; Zahrn Complaint,69; and see McNosky Complaint, 12. 4 See DeLeon Complaint, 40; Zahrn Complaint, 69; and see McNosky Complaint, 13. 5 See DeLeon Complaint, 52; Zahrn Complaint, 75; and see McNosky Complaint, 18. 6 See DeLeon Complaint, 60; Zahrn Complaint,89; and see McNosky Complaint, 18. 7 See DeLeon Complaint, 55; Zahrn Complaint, 75; and see McNosky Complaint, 18. 8 See DeLeon Complaint, Prayer, b; Zahrn Complaint, Prayer, 109;and see McNosky Complaint, Prayer B. 9 See DeLeon Complaint, Prayer a; Zahrn Complaint, Prayer 111; and see McNosky Complaint, Prayer A. Defendants Motion to Consolidate Page 3
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 ABBOTT Attorney 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. DEANE Texas Bar No. 05692500 Assistant Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, 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 the Zahrn case on Friday, November 8, 2013, to confer about the subject matter of the instant motion. Plaintiffs counsel in all three cases opposes this motion. /s/ William T. Deane WILLIAM T. DEANE Assistant Attorney General
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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 Run Colleyville, Texas 76034 Mary Louise Garcia Office of Public Records and Civil Courts 1895 Courthouse 100 W. Weatherford Fort Worth, TX 76196 Sven Stricker 3047 Bent Tree Ct Bedford, Texas 76021
Barry A. Chasnoff bchasnoff@akingump.com Daniel McNeel Lane, Jr. nlane@akingump.com Frank Stenger-Castro fscastro@akingump.com 300 Convent Street, Suite 1600 San Antonio, Texas 78205 Attorneys for Plaintiffs
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 jasons@bellnunnally.com James J. Scheske, SBN 17745443 JAMES J. SCHESKE PLLC 5501-A Balcones #109 Austin, TX 78731 Phone: (512) 371-1790, Fax: (512) 323-2260 jscheske@austin.rr.com
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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 335 Austin, Texas 78759 Phone: (512) 320-0999, Fax: (512) 320-0025 leigh@jptexaslaw.com Attorneys for Plaintiffs /s/ William T. Deane WILLIAM T. DEANE Assistant Attorney General
ATTACHMENTS Exhibit A Exhibit B Exhibit C Exhibit D Zahrn Civil Docket De Leon Civil Docket Zahrn Original Complaint. De Leon Original Complaint.
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C>':C% /@A: + B.S. $istri#t Court:t40d Page 1 o) 4 Case 1:13-cv-00631-SS Document 17-1 Filed 11/12/13 Page 1 of 4
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 Sparks Cause: 42:19 ! Civil "ights A#t $ate %iled: 1&'!1'2&1! Jury $emand: (one (ature o) Suit: 9*& Constitutional + State Statute Jurisdi#tion: %ederal ,uestion
+,aintiff S-annon .a-rn represented -y Ian E. +itt/an Jorgeson Pittman. //P 4*&* Spi#e0ood Springs "oad Suite !!* Austin. 12 3 3*9 *12.!2&.&999 %a4: *12.!2&.&&2* LEAD ATTORNEY ATTORNEY TO BE NOTICED 0a/es 0. Sc-es1e James J. S#heske. P//C **&1+A 5al#ones. 61&9 Austin. 12 3 3!1 7*128 !31+139& %a4: *12'!2!+229& :mail: ;s#heske<austin.rr.#om LEAD ATTORNEY ATTORNEY TO BE NOTICED S. Lei2- 0or2eson Jorgeson Pittman. //P 4*&* Spi#e0ood Springs "oad Suite !!* Austin. 12 3 3*9 *12.!2&.&999 %a4: *12.!2&.&&2* LEAD ATTORNEY ATTORNEY TO BE NOTICED 0ason +. Stee3 5ell (unnally = >artin //P !2!2 >#?inney Ave. Suite 14&& $allas. 12 3*2&4 214+34&+1411 EXHIBIT A
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Plaintiff Catherine Zahrn represented -y Ian E. Pittman 7See a-ove )or address8 LEAD ATTORNEY ATTORNEY TO BE NOTICED James J. Scheske 7See a-ove )or address8 LEAD ATTORNEY ATTORNEY TO BE NOTICED S. Leigh Jorgeson 7See a-ove )or address8 LEAD ATTORNEY ATTORNEY TO BE NOTICED Jason P. Steed 7See a-ove )or address8 ATTORNEY TO BE NOTICED Plaintiff Alexius Augustine represented -y Ian E. Pittman 7See a-ove )or address8 LEAD ATTORNEY ATTORNEY TO BE NOTICED James J. Scheske 7See a-ove )or address8 LEAD ATTORNEY ATTORNEY TO BE NOTICED S. Leigh Jorgeson 7See a-ove )or address8 LEAD ATTORNEY ATTORNEY TO BE NOTICED Jason P. Steed 7See a-ove )or address8 ATTORNEY TO BE NOTICED Plaintiff Andrew Simpson on behalf of themselves and all others similarly situated represented -y Ian E. Pittman 7See a-ove )or address8 LEAD ATTORNEY ATTORNEY TO BE NOTICED EXHIBIT A
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CM/7CF LIV7 + :.S. >is'ri%' Co(r'4'32d Pa"e 3 of $ Case 1:13-cv-00631-SS Document 17-1 Filed 11/12/13 Page 3 of 4
James J. Scheske (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED S. Leigh Jorgeson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Jason P. Steed (See above for address) ATTORNEY TO BE NOTICED V. Defendant Rick Perry in his official ca acity as !overnor of Te"as Defendant Greg Abbott in his official ca acity as Attorney !eneral of Te"as Defendant Dana DeBeauvoir in her official ca acity as County Cler# of Travis County$ Te"as
Date Fi ed 10/31/2013
! 1
Docket "e#t COMPLAINT for Declaratory and In%unctive Relief ( Fi i!" fee # $00 re%ei&' !()ber 0*$2+*,-0**3). fi ed b/ S0a!!o! 1a0r!. A!dre2 Si)&so!. A e3i(s A("(s'i!e. Ca'0eri!e 1a0r!. (A''a%0)e!'s4 5 1 Civi Cover S0ee')(S'eed. 6aso!) (7!'ered4 10/31/2013) NOTIC7 of Constitutional &uestions b/ A e3i(s A("(s'i!e. A!dre2 Si)&so!. Ca'0eri!e 1a0r!. S0a!!o! 1a0r! re 1 Co)& ai!' (S'eed. 6aso!) (7!'ered4 10/31/2013) 879:7ST FO8 ISS:ANC7 OF S:MMONS b/ A e3i(s A("(s'i!e. A!dre2 Si)&so!. Ca'0eri!e 1a0r!. S0a!!o! 1a0r!. (S'eed. 6aso!) (7!'ered4 10/31/2013) Case Assi"!ed 'o 6(d"e Sa) S&ar;s. CM <ILL NO< 87FL7CT T=7 6:>?7 INITIALS (SS) AS PA8T OF T=7 CAS7 N:M@784 1413+%v+,**+ EXHIBIT A
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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('))*+,'OLDeLeon et al v. Perry et al Assigned to: Judge Orlando L. Garcia Cause: 42:198 Civil !ig"ts Act ./aintiff C/eo0atra DeLeon re+resented ,y 1arr2 A. C3asnoff A-in Gu&+ )trauss .auer / #eld0 LLP. $$ Convent )treet0 )uite 11$$ )an Antonio0 23 482$5 621$7 28184$$1 #a9: 21$%22482$ 5 :&ail: ,c"asno((;a-ingu&+.co& LEAD ATTORNEY ATTORNEY TO BE NOTICED Danie/ 4c5ee/ Lane 6 7r. A-in0 Gu&+0 )trauss0 .auer / #eld0 L.L.P. 15$$ 'ations<an$$ Convent )an Antonio0 23 482$5 621$7 28184$$$ #a9: 21$%22482$ 5 :&ail: nlane;a-ingu&+.co& ATTORNEY TO BE NOTICED ran8 Sten9er'Castro A-in Gu&+ $$ Convent )treet0 )uite 11$$ )an Antonio0 23 482$5 621$7 28184$19 #a9: 21$%22482$ 5 :&ail: (scastro;a-ingu&+.co& ATTORNEY TO BE NOTICED ./aintiff 5ico/e Di:et:an re+resented ,y 1arr2 A. C3asnoff 6)ee a,ove (or address7 LEAD ATTORNEY ATTORNEY TO BE NOTICED Danie/ 4c5ee/ Lane 6 7r. EXHIBIT B
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Date #iled: 1$%28%2$1 Jury De&and: 'one 'ature o( )uit: 44$ Civil !ig"ts: Ot"er Jurisdiction: #ederal *uestion
C=%:C# L>?: 8 @.). District Court:t9Ad Page 2 o( 4 Case 1:13-cv-00631-SS Document 17-2 Filed 11/12/13 Page 2 of 4 6)ee a,ove (or address7 ATTORNEY TO BE NOTICED
Frank Stenger-Castro 6)ee a,ove (or address7 ATTORNEY TO BE NOTICED Plaintiff Victor Holmes re+resented ,y Barry A. Chasnoff 6)ee a,ove (or address7 LEAD ATTORNEY ATTORNEY TO BE NOTICED Daniel McNeel Lane !r. 6)ee a,ove (or address7 ATTORNEY TO BE NOTICED Frank Stenger-Castro 6)ee a,ove (or address7 ATTORNEY TO BE NOTICED Plaintiff Mark Phariss re+resented ,y Barry A. Chasnoff 6)ee a,ove (or address7 LEAD ATTORNEY ATTORNEY TO BE NOTICED Daniel McNeel Lane !r. 6)ee a,ove (or address7 ATTORNEY TO BE NOTICED Frank Stenger-Castro 6)ee a,ove (or address7 ATTORNEY TO BE NOTICED ?. Defen"ant #ick Perry in his official capacity as Govenor of the State of Texas Defen"ant $reg A%%ott in his official capacity as Texas Attorney General Defen"ant EXHIBIT B
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Defen"ant Da&i" Lakey in his official capacity as Co""issioner of the Texas Depart"ent of State #ealth Services
Date File" 10/28/2013
' 1
Docket (e)t COMPLAINT $or Declaratory an% In& nctive Relief ( Filing fee $ 400 receipt nu !er 0"42#"$%004&'( N) *u )n+ re,ue+te- .t t/i+ ti e0 file- !1 M.r2 P/.ri++0 Cle)p.tr. 3eLe)n0 4ict)r 5)l e+0 Nic)le 3i et .n( (Att.c/ ent+6 7 1 Ci8il C)8er */eet'(C/.+n)ff0 9.rr1' (:ntere-6 10/28/2013' C.+e A++igne- t) ;u-ge Orl.n-) L( <.rci.( CM =ILL NO= >:FL:CT T5: ;?3<: INITIAL* A* PA>T OF T5: CA*: N?M9:>( PL:A*: APP:N3 T5:*: ;?3<: INITIAL* TO T5: CA*: N?M9:> ON :AC5 3OC?M:NT T5AT @O? FIL: IN T5I* CA*:( (rg' (:ntere-6 10/28/2013' If )r-ere- !1 t/e c)urt0 .ll referr.l+ Aill !e .++igne- t) M.gi+tr.te ;u-ge M.t/1( (rg' (:ntere-6 10/28/2013'
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Case Case 1:13-cv-00631-SS 1:13-cv-00955-SS Document Document 17-3 1 Filed Filed 10/31/13 11/12/13 Page Page 11 ofof 26 26
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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, the
Supreme Court also 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 Windsor is 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 provide
marriage 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 part
on 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 have
already relied in part on Windsor to rule against state laws that refuse to recognize same-sex marriages. 6. The State of Texas, through Article I, section 32 of the Texas
Constitution 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
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denying them the basic right to marry. 7. Plaintiffs therefore ask this Court, pursuant to 42 U.S.C. 1983, to
protect 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 Plaintiff
Class 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) because
all Defendants reside in this district, and because a substantial part of the events giving rise to the claim occurred in this district. 10. This Court has authority to enter a declaratory judgment and to provide
injunctive 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 are
domiciled in the State of Texas.
The Parties 12. Plaintiff Shannon Zahrn is a Texas resident in Travis County, Texas.
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13. 14. 15. 16.
Plaintiff Catherine Zahrn is a Texas resident in Travis County, Texas. Plaintiff Alexius Augustine is a Texas resident in Travis County, Texas. Plaintiff Andrew Simpson is a Texas resident in Travis County, Texas. Defendant Rick Perry is the Governor of the State of Texas. In his
official 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. In
his 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 control
are 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.
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Facts 20. Individuals who are homosexual have suffered a long history of
discrimination and unequal treatment in the United States and in Texas. 21. Laws against homosexual sex, for example, date back to before the
nation 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 amended
their state constitution to prevent cities 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 enacted
its own laws against same-sex marriage, adding section 2.001 to the Texas
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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 amended
to 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 are
homosexual 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 laws
that criminalized adult, consensual, homosexual sex because, according to the Court, the Fourteenth Amendments Due Process Clause gives substantial
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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 (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992)) (emphasis added). Lawrence stemmed 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 federal
governments 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 Romer and 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 discriminate
against 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 by
DOMAs 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 the
State 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 a
result 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 them
the 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. 40. In 2006, the couple moved to Austin, Texas, for Shannons job. Catherine gave birth to a baby girl in 2011. Shannon legally adopted the
child 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 Catherine
in 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 years
and are the loving parents of two children. 44. The Zahrns are like any other typical Texan family, and deserve the
same 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 that
DOMAs 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 marriage
license. 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 formalized
by 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 have
lived 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 harm
as a result of the States enforcement of Texas law. 53. Alex and Andy have known each other for ten years. They first met in
2003, 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 them
the 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 from
St. 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 officially
proposed 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 deeply
committed 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 in
Windsor, 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-sex
marriage 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 marriageand
particularly 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 they
have 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 on
behalf of themselves and others similarly situated.
The Plaintiff Class 65. The Plaintiff Class consists of 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,
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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, on
behalf 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 set
forth 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 civil
marriage 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 animus
held 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 legislator
and 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 Attorney
General, 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, section
32 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 74. Plaintiffs incorporate by reference paragraphs 173, above, as if fully set
forth herein. 75. The Due Process Clause of the Fourteenth Amendment protects
individuals 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, section
32 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 77. Plaintiffs incorporate by reference paragraphs 176, above, as if fully set
forth herein. 78. The right and freedom to enter and abide in any State in the Union
has 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 the
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 a same-sex marriage that was legally entered into in another state. Or, in other words, 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 legallymarried status. Therefore, these Texas laws violate the constitutional right to travel.
Claim Four: Full Faith and Credit 80. Plaintiffs incorporate by reference paragraphs 179, above, as if fully set
forth herein. 81. The U.S. Constitution states: Full faith and credit shall be given in
each 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-ofstate marriage of a same-sex couple. 82. But section 6.204 of the Texas Family Code and article I, section 32 of
the 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 prescribe
the 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 cannot
undo, 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 public
acts of another state. And Article IV also permits Congress to prescribe the manner in which such Acts . . . shall be proved, and the Effect thereof. But Article IV does not allow 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 no effect 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-sex
marriages 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 88. Plaintiffs incorporate by reference paragraphs 187, above, as if fully set
forth herein. 89. By enforcing sections 2.001 and 6.204 of the Texas Family Code and
article 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 civil marriage 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 90. Plaintiffs incorporate by reference paragraphs 189, above, as if fully set
forth herein. 91. Because Defendants have been and are currently enforcing sections
2.001 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 relationships
sends 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, see Tex. 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 the
Plaintiff 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 and
continues 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 98. Plaintiffs incorporate by reference paragraphs 197, above, as if fully set
forth herein. 99. Plaintiffs Shannon Zahrn, Catherine Zahrn, Alex Augustine, and Andy
Simpson 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 samesex 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
EXHIBIT C
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 any
individual 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 Plaintiff
Class, 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 the
interests 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.
EXHIBIT C
106.
This action is maintainable as a class action under Federal Rule of Civil
Procedure 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 of
Civil 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 is
maintainable as a class action pursuant to Rule 23. 109. Plaintiffs respectfully ask this Court, pursuant to 28 U.S.C. 2201, to
construe 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 of
DOMA, and to enter a declaratory judgment stating that, to the extent section 2 purports to circumvent or supersede the Full Faith and Credit
EXHIBIT C
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 a
permanent 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 relief
requested 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 jasons@bellnunnally.com
EXHIBIT C
James J. Scheske, SBN 17745443 JAMES J. SCHESKE PLLC 5501-A Balcones #109 Austin, TX 78731 Phone: (512) 371-1790, Fax: (512) 323-2260 jscheske@austin.rr.com 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 335 Austin, Texas 78759 Phone: (512) 320-0999, Fax: (512) 320-0025 leigh@jptexaslaw.com Attorneys for Plaintiffs Shannon Zahrn, Catherine Zahrn, Alexius Augustine, and Andrew Simpson
EXHIBIT C
Case Case 1:13-cv-00631-SS 5:13-cv-00982 Document Document 1 17-4 Filed Filed 10/28/13 11/12/13 Page Page 1 of116 of 16
IN TIlE UNITFI) STATFS I)ISTRICT COURT FOR IlL SI [RN DISTRI( T O[ I F\ S SAN ANTONIO I)IVISION
CLEOIATRA l)F LEON, NICOLE DIMETMAN, VICTOR HOLMES, and MARK I IIARISS 7
Plaintiffs,
V.

CIVILACTION NO.
5:13-cv-982
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) INJUNCTIVE RELIEF

Plaintiffs Cleopatra De Leon, Nicole 1)imetrnan, Victor (Vie) I lolmes, and Mark
Phariss complain of I)efendants and allege:

I. INTRODUCTION
1.
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 State of Texas. Any person has the legal right to marry another person of the opposite se. hut that right is denied to those citizens who wish to marry another person of the same sex. This unequal treatment of gay and lesbian citizens is based on longstanding prejudices. and it is repugnant to the United States Constitution. As the Linited States Supreme Court recently declared, [t]he
PLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT
105030373
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EXHIBIT D
Constitutions guarantee of equality must at the very least mean that a bare congressional desire 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, 413
U.S. 528 (1973)). The constitutional guarantee of equality also protects against such disparate treatment when the desire to harm manifests itself in state legislation or state constitutional provisions. 2. The freedom to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness by free men. Loving v. Virginia, 388 U.S. I, 12 (1967), Numerous Supreme Court cases recognize the important of marriage. It is among associational rights this Court has ranked as of basic important in our society, ML.B. v. S.L.J. 519 U.S. 102, 116(1996); it is a freedom of personal choice that is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment, Cleveland Rd. o/Edue. v LaFleur. 414 U.S. 632. 639 (1974); and it is the most important relation in life, Zablocki v Redhail, 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 right of marriage, Texas Constitution expressly forbids Texas and its political subdivisions from creat[ing] or recogniz[ingj any legal status identical or similar to marriage. Tex. Const., art. 1,
32.
3. This lawsuit is brought by Ibur citizens, each of whom wishes for the State of
Texas to allow and recognize their marriages, but the State of Texas will notsimply because Plaintiffs wish to be married to someone of the same sex. Two of the Plaintiffs served honorably in our nations armed forces, defending our freedoms. All of the Plaintiffs contribute to our nations well-being as productive and conscientious citizens. Yet the State of

I 05030373
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EXHIBIT D
Texas denies them the same access to the institution of mamage, and its attendant benefits, enjoyed by every individual who wishes to marry a person of the opposite sex. The State of Texas has no justification for depriving Plaintiffs of their rights in this way. 4. In Texas, Plaintiffs cannot legally marry their partner before family, friends, and
societya right enjoyed by citizens who wish to marry a person of the opposite sex. And should they become married in a state that has established marriage equality, Texas explicitly voids their marriage. There is no rational basis, much less a compelling government purpose, for Texas to deny Plaintiffs the same right to marry enjoyed by the majority of society. Accordingly, Plaintiffs petition this Court for a declaratory judgment that Article I,
32 of the
Texas Constitution and corresponding statutes violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Plaintiffs also petition this Court for a permanent injunction enjoining Defendants from continuing to deprive Plaintiffs of their right to marry.
II. PARTIES
5.
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 her marriage or allow her to re-marry Plaintiff Dimetman in Texas. 6. Plaintiff Nicole Dirnetman is a Texas resident. She legally married Plaintiff
Cleopatra Dc Leon in Massachusetts, and she wants the State of Texas to either recognize her marriage or allow her to re-marry Plaintiff Dc Leon in Texas. 7. Plaintiff Mark Phariss is a Texas resident. He wants to marry his long-time
partner, Plaintiff Vie Holmes, in Texas.

8.
Plaintiff Vie Holmes is a Texas resident. He wants to marry his long-time
partner, Plaintiff Mark Phariss, in Texas.

PLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT 105030373 Page 3
EXHIBIT D
9. capacities. 10.
Defendants are Texas State officials, and Plaintiffs sue them in their official
Defendant Riek Perry is the Governor of the State of lexas, and Plaintiffs sue
him in his official capacity. Plaintiffs will serve Governor Perry pursuant to the Federal Rules of Civil Procedure. 11. Defendant Greg Abbott is the Attorney General of the State of Texas, and
Plaintiffs sue him in his official capacity. Plaintiffs will serve Defendant Abbott pursuant to the Federal Rules of Civil Procedure. 12. Defendant Gerard Rickhoff is the County Clerk of Bexar County, Texas, and
Plaintiffs sue him in his official capacity. Plaintiffs will serve Defendant Rickhoff pursuant to the Federal Rules of Civil Procedure. 13. Defendant David Lakey, M.D. is the commissioner of the Texas Department of
State Health Services, which includes the bureau of vital statistics, and Plaintiffs sue him in his official capacity. Plaintiffs will serve Defendant Lakey pursuant to the Federal Rules of Civil Procedure.
III. JURISDICTION AND VENUE
14. U.S.C.
This case raises questions under the Constitution of the United States and 42
1983 and, thus, this Court has jurisdiction pursuant to 28 U.S.C. 1331, 1343(a)(3)
and (4). 2201, and 2202.

15.
Venue is proper under 28 U.S.C.
1391 because Defendant Rickhoff resides in
this district and all Defendants reside in Texas. Venue is also proper in this Court because a substantial part of the events giving rise to this claim occurred in this district.

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EXHIBIT D
IV.
FACTUAL BACKGROUNI)
A. 16.
fle Leon and Dinietnian
Dc Leon and Dimetman met in 2001. At the time, Dirnetman was running her
own business and Dc Leon was working as a statistical analyst while also serving in the Texas Air National Guard. Dc Leon is a United States Air Force veteran; she was on active duty for four years and served six years in the Air National Guard. She was honorably discharged after ten years of service. 17.
Dc Leon and Dimetman started dating in September 2001. They have been in a
committed relationship since then. During this time, they supported one another while Dc Leon applied to and completed graduate school and while Dimetman applied to and completed law school. Dimetman is now an attorney licensed to practice law in the State of Texas. Dc Leon and 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 one
another, declaring their love and commitment before family, friends, and society. Because they lived in Texas, they were unable to marry in their home state. As a result, they incurred significant expense and traveled to Boston, Massachusetts, where they married on September 11, 2009. 19.
Dc Leon and Dimetman also wanted a family. In 2011, Dc Leon conceived, and
in 2012, gave birth to C. While Dc Leon is Cs biological parent, Dimetman adopted C. Dc Leon and Dimetman incurred significant expenses to ensure that the State of Texas recognized each as Cs parent. They each dedicate countless hours raising, loving, nurturing, educating,
and 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,

PLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT 105030373
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EXHIBIT D
Iowa, Maine, Maryland, Minnesota, New Hampshire, New Jersey. New York, Rhode Island, Washington, and Vermont. 21. 22, Their marriage is not recognized by the State of ixas. 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, as required 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, however, the federal government does not recognize their marriage for all purposes.
B. Holmes and Phariss
24.
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 law in Texas. They quickly developed a friendship that blossomed into a dating relationship. On August 9, 1997, they went on their first date. They celebrate August 9 as their anniversary. 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, Holmes, who joined the Air Force when he was eighteen, began a military program to become a physicians assistant. After completing the program, Holmes became an officer, and the Air Force stationed him in San Diego at the Naval Medical Center. 26. Because Phariss continued to live and work in Texas, he and Holmes started an
eleven year period of extraordinary personal sacrifice to maintain and strengthen their relationship despite the distance between them. While Holmes was in San Diego, Phariss
Page 6
EXHIBIT D
would travel to see I lolmes every few weeks (1 lol mes was generally unable to leave San Diego). The Air Force re-assigned Holmes to the Keesler Medical Center in Biloxi,
Mississippi. and Holmes and Phariss began commuting every other week (sometimes more) to see one another. The Air Force later stationed Holmes at the Air Force base in Little Rock.
Arkansas. and he and Phariss were able to see each other nearly every weekend. [loimes last assignment was at Sheppard Air Force base in Wichita i:alls. I exas. During this time. Holmes
and Phariss were able to see one another each weekend and on special occasions during the
week.
27. Holmes honorably served our nation for nearly twenty-three years and retired as
a Major at the end of 201 0. After eleven years traveling to see one another and maintain and strengthen their relationship. I lolmes and Phariss were able to live together again. 28. 29.
On August 9. 2013. 1-lolmes and Phariss celebrated their sixteenth anniversary.

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 Bexar County Clerk. The County ClerLs office refused to issue a marriage license because they are a same-sex couple. 31. If Holmes and Phariss were able to marry, the federal government would
recognize their marriage pursuant to the United States Supreme Courts decision in Windsor.

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EXHIBIT D
C.
Texas Denies Same-Sex Couples the Right to Marry or to Attain Any of the Rights Afforded Married heterosexual Couples. [he lexas Constitution defines marriage as ihe union oF one man and one
32.
woman. and ii prevents Texas and its political subdivisions from recognizing samesex marriages. Tex. Consi.. art. 1
.
32. Not only does it prevent samesex couples from marrying.
the Texas Constitution expressly lbrhids Texas and its political subdivisions 1mm creat[ing or recogniz[ing] any legal status identical or similar to marriage. Id.
33.
Reflecting the Texas Constitution. the Texas Family Code prohibits county
clerks, including the Bexar County Clerk, from issuing marriage licenses to persons of the same-sex. Tex. Family Code Ann.
2.001. The Texas Family Code requires the bureau of
vital statistics to prescribe the information required in a marriage license application, which is limited to heterosexual couples. id.
34.
2.002.
The Texas Family Code also voids all same-sex marriages and all same-sex civil
unions. Id.
6.204. Texas expressly denies same-sex couples from the 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. Id. Thus. the State of icxas nullifies the rights, benefits, and responsibilities that same-sex couples married in another jurisdiction would enjoy if they were
heterosexual.

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EXHIBIT D
P. 35.
Plaintiffs Inability to Mam Causes Substantial Harm.
Texas constitutional and statutory provisions create a legal system in which civil
marriage is exclusively restricted to heterosexual couples. The Texas Constitution and various statutes den samesex couples the right to enter into a civil marriage.
36.
Plaintiffs su lThred and
continue
to sufThr substantial and irreparable harm as a

social
result ot Texas refusal to recognize or allow samesex marriages. These harms include
stigma. the loss ol federal rights, and the loss of state rights.
i.
37.
Plaintiffs suffer social stigma as a result of their inability to marry. 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 than unmarried couples. Being married reflects the commitment that a couple makes to one another. and represents a public, legal acknowledgment of the value. legitimacy. depth. and permanence
of the married couples private relationship. Legallyrecognized marriages conler rights and
responsibilities that are not available to unmarried couples.
38.
Texas constitutional and statutory prohibitions against recognizing same-sex
marriages convey the States view that PlainiilYs relationships are of lesser value than relationships of heterosexuals and are unworthy of legal recognition and support. The States refusal to recognize same-sex marriages is a very public rejection of Plaintiffs most significant relationship, and it harms Plaintiffs, any children Plaintiffs have, and their families. The reftisal to recognize same-sex marriage also invites and facilitates private discrimination against homosexuals and promotes the view that their relationships and families are inferior. 39. By prohibiting same-sex couples from marrying. Texas places same-sex
couples in an unstable position. demeans same-sex couples. humiliates tens of thousands of children now being raised by same-sex couples, and instructs all [Statej officials. and indeed
PLAJNTIFFS ORIGINAL COMPLAINT FOR DECLARATORY JUD(;MENT 105030373 Page 9
EXHIBIT D
Case Case 1:13-cv-00631-SS 5:13-cv-00982 Document Document 1 17-4 Filed Filed 10/28/13 11/12/13 Page Page 10 of 1016 of 16
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. Ct 2675,2694-96(2013). Similarly, by refusing to recognize the validity of same-sex marriages 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-sex marriages by tell[ing] those couples. and all the world, that their otherwise valid marriages are unworthy of [Texas] recognition. fit at 2693-94. IL 40. Plaintiffs inabffity to many affects numerous federal protections, benefits, and obligations.
Texas refusal to pennit Plaintiffs to marry or recognize their out-of-state
marriage deprives Plaintiffs of numerous federal protections, benefits, and obligations that are available to married same-sex couples. See hi at 2683 (noting that over 1,000 federal laws address marital or spousal status). These federal rights include, among others, having the same rights as heterosexual married couples in one anothers Social Security benefits, 42 U.S.C. 416, spousal privileges, seeking protections under the Family and Medical Leave Act 29 U.S.C. 2612, and federal Medicaid benefits. 41. Same-sex couples residing in Texas cannot rely upon an out-of-state marriage to
confer federal protections, benefits, and obligations. Texas same-sex couples who many in another state must contend with substantial uncertainty regarding whether the marriage will be recognized by the federal government for various purposes. For instance, while the Internal Revenue Service recently adopted a state of celebration rule in recognizing same-sex marriages, Rev. Ruling 2013-17 (Aug. 30,2013), it is unclear what other federal agencies will follow. In fact, the Department of Labor recently announced that FMLA will apply only to same-sex couples that reside in states recognizing their marriage. See Dept. of Labor, Fact
PLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT 103030373 Page 10
EXHIBIT D
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 Defendant Abbott advise him what, if any, actions the Texas Military Forces can take to comply with the
Department of Defenses policy of extending spousal and dependent benefits to same-sex couples without violating the Texas Constitution and Texas statutes.
ilL Plaintiffs inability to marry affects numerous state-law protections, benefits, and obligations.
42.
Texas refusal to marry or recognize Plaintiffs marriage also denies Plaintiffs
many state4aw benefits. Plaintiffs cannot claim statutory protections afforded married couples
upon the death of a spouse, such as intestacy rights. See Tex. Probate Code 38.45. The
surviving spouse could not file a wrongful death suit if a spouse is killed. Tex. Cit Prac. & Rem. Code 71.004. Same-sex couples cannot claim protections to the partition of their homestead upon the death their spouse. Tex. Const., art 16, 52. Same-sex couples cannot rely upon courts to equitably divide property as a heterosexual married couple can if they divorce, and they are not entitled to a community property presumption. Tex. Family Code ft 3.003.7.001,7.003. Nor can same-sex couples seek spousal maintenance if they separate or divorce. Id.
8.051. Additionally, absent conferring power of attorney or other written
agreement, Plaintiffs do not have the right to make health care decisions for one another when necessary, and PlaintilTh do not have the right to make burial decisions and other decisions regarding the disposition and handling of the remains of his or her spouse. Same-sex couples also cannot claim spousal privileges to avoid testiing against one another. Tex. R. Evid. 504. 43. Thus, the Texas Constitution and statutes and Defendants, acting under color of
law, are denying Plaintiffs the intangible and tangible benefits of being married.
Page II
EXHIBIT D
E.
Texas Constitutional and Statutory lrovisions Banning Same-Sex Marriage Are Subject to Heightened Scrutin. Homosexuals ha e faced a long and painful history of societal and government
44.
sponsored discriminalion. 45. While their sexual orientation bears no relation to their ability to contribute to
society, gay and lesbian individuals historically have been, and continue to be. the target of purposeful discrimination, including statesanctioned discrimination, due solely to their sexual orientation. 46. 47. laws. 48. Because the samesex marriage prohibitions classify citizens based upon factors Sexual orientation is immutable and fundamental to all individuals. Gay and lesbian individuals lack the political power to eliminate discriminatory
that reflect prejudice and antipathy--a view that those in the burdened class are not as worthy or deserving as others. (liv of Cichurne v Cleburne Living (Ii:. Inc.. 473 U.S. 432. 440 I 985). the prohibitions must pass heightened judicial scrutiny. F. 49. Texas Refusal to Allow or Recognize Same-Sex Marria2e Does Not Serve Any Covernment Interest. Whether under a strict or heightened scrutiny analysis, or under the more lenient
rational basis test, Texas prohibition of same-sex marriage does not bear any relation to a legitimate government purpose, much less an important or compelling governmental interest. Excluding same-sex couples from marriage does not lead to increased stability in marriages between heterosexual couples. Permitting same-sex couples to marry does not destabilize heterosexual marriages. 50. Excluding same-sex couples from marriage does not optimize the child-rearing
environment of married heterosexuals. Children of same-sex marriages do not suffer any harm
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EXHIBIT D
from having samesex paren s nor are such children more likely to become homosexual. A great deal of scientific research documents there is no cause-and-effect relationship between parents sexual orientation and childrens well-being. Press Release, American Academy of Pediatrics. American Academy of Pediatrics Supports Same (lender Civil Marriage (Mar. 21
2013).
V.
REQUEST FOR DECLARATORY RELIEF CLAIM ONE: DUE PROCESS
5 1. forth herein. 52.
Plaintiffs incorporate by reference paragraphs I through 50, supra. as if fully set
The Texas Constitution and slatutes at issue in this case violate liberties
protected by the Due Process Clause of Fourteenth Amendment to the United States Constitution. both on its face and as applied to Plaintiffs. 53.
The Texas Constitution and statutes at issue here impinge on fundamental
liberties by denying same-sex couples the opportunity to marry and deprive them of the recognition of their out-of-state marriages. The State of Texas. through Defendants, refuses to allow same-sex couples to enter into the same officially sanctioned relationship as heterosexual individuals. By denying samesex couples the right to marry and refi.ising to recognize their out-of-state marriages, Texas stigmatizes same-sex couples, as well as their children and families, and denies them the same dignity. respect. and stature aftbrded ollicially recognized heterosexual family relationships.
PLAINTIFFS ORIGiNAL COMPLAINT FOR DECLARATORY JUDGMENT 105030373
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EXHIBIT D
CLAIM TWO: EQUAL PROTECTION 54. lorth herein. 55. The Texas Constitution and statutes at issue here violate the Equal Protection Plainti us incorporate by relirence parauraphs I through 53. vupra. as if fully set
(lause of the Fourteenth Amendment to the United States Constitution. both on its face and as applied to Plaintiffs.
56.
Texas constitutional and statutory law restricts civil marriage to heterosexuals.
Same-sex couples are therefore unable to marry persons of their choice, Thus, Texas law treats similarly-situated people differently by permitting heterosexual couples to marry, but denying that right, and the heneflis which come with that right, to same-sex couples. Because same-sex couples are unable to marry, they are unequal in the eves of the law and their lhmilies are denied the same respect as lrnilies of heterosexuals. By explicitly denying civil marriage to same-sex couples. Texas ban on same-sex marriage discriminates on the basis of sexual orientation. 57. The disadvantage fexas imposes on samesex couples is the result of disapproval
or animus against a politically unpopular group. The Texas constitution and statutes at issue in this lawsuit deny same-sex couples, but not others, the right to marry. Thus, the Texas Constitution and the statutes at issue in this case violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because they relegate homosexuals to a disfavored legal status, thereby creating a category of second class citizens. 58. The Texas Constitution and the statutes at issue in this case also violate the
Equal Protection Clause because they discriminate on the basis of sex by distinguishing between heterosexual couples and same-sex couples. Thus. the limitation on civil marriage

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depends upon an individual persons sex; a man who wishes to marry a man may not do so because he is a man, and a woman may not marry a woman because she is a woman.
CLAIM THREE: VIOLATION OF 42 tJ.S,C.
1983
59. forth herein. 60.
Plaintiffs incorporate by reference paragraphs 1 through 58, supru. as if fully set
Insofar as Defendants, acting under color of state law. enforce Texas
constitutional and statutory terms denying Plaintiffs the right to marry, Defendants are depriving and will continue to deprive Plaintiffs of numerous rights secured by the United States Constitution in violation of 42 U.S.C.
1983.
IRREPARABLE HARM
61. forth herein. 62.
Plaintiffs incorporate by reference paragraphs I through 60, supra, as if fully set
Plaintiffs are severely and irreparably harmed by Texas prohibition of same-sex
marriages and Texas refusal to recognize same-sex marriages legally performed in other states. By way of example, Plaintiffs are denied their constitutional rights to marry and are forced to suffer the severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma caused by the inability to marry the ones they love and have society recognize their marriages. 63. Each day that Plaintiffs are denied the freedom to marry, or have their marriage
recognized by Texas, they suffer irreparable harm as a direct result of Defendants violation of their constitutional rights. 64. An actual and judicially cognizable controversy exists between Plaintiffs and
Defendants regarding Texas refusal to allow or recognize same-sex marriage.

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EXHIBIT D
PR A\ FR
\VHEREIORE. Plaintiffs respectfull\ request that the Court enler an Order including or
directing the fidloing relief: a. Issue declaratory judgment that Article 1.
32 ol the Texas Constitution and the
lexas statutes at issue in this case, as applied to Plaintilts. violate the l)ue Process and Equal Protection Clauses ol the Fourteenth Amendment to the United States
Constitution
and
42
U.S.C.
1983;
b. Issue a permanent injunction barring enforcement or application of Texas
constitutional and statutory provisions at issue herein; c. d. Award Plaintiffs their reasonable costs. expenses, and attorneys lI.es; and For such other relief the Court deems proper. just and equitable. Respectfully submitted, AKIN GIfMP STRAUSS HAUER & FELL) LLP
i
/1
1/
I
___akChasno1Y(StN 04153500) / bchasnoffJakingump.corn Jj4 (513N 0078A441 Daniel McNeel Lane
Frank Stenger-Castro (SBN 19143500) fscastroakingurnp.corn 300 Convent Street, Suite 1600 San Antonio, Texas 78205 Phone: (210) 281-7000 Fax: (210) 224-2035
Attorneys for Plaintiffs

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Case 1:13-cv-00631-SS Document 17-5 Filed 11/12/13 Page 1 of 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
ORDER ON DEFENDANTS OPPOSED MOTION TO CONSOLIDATE TRIAL AND SCHEDULING DEADLINES ON THIS DAY came to be heard Defendants Opposed Motion to Consolidate Trial and Scheduling Deadlines. After considering the motion, any any response, Defendants Opposed Motion to Consolidate Trial and Scheduling Deadlines is GRANTED. IT IS THEREFORE ORDERED THAT CIVIL ACTION NO. 1:13-CV-00955-SS, styled Shannon Zahrn, et al. v. Rick Perry, et al., and Civil Action No. 5:13 cv 982 OLG, Cleopatra De Leon et al v Rick Perry, et al are hereby consolidated into No. A-13-CA-631-SS, Christopher Daniel McNosky and Sven Stricker v. Texas Governor Rick Perry, Texas Attorney General Greg Abbott, et al. for both trial and scheduling purposes; and IT IS FURTHER ORDERED all scheduling deadlines set in this case will be the same scheduling and trial deadlines in the two consolidated cases. SIGNED this _____ day of November, 2013. ____________________________________ HONORABLE SAM SPARKS UNITED STATES DISTRICT JUDGE

Zahrn v. Perry State Defendants' Motion To Consolidate

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Zahrn v. Perry State Defendants' Motion To Consolidate

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

Case No. A13-CV-0631 SS

Case 1:13-cv-00631-SS Document 17 Filed 11/12/13 Page 2 of 7

October 31, 2013, see Civil Docket Exhibits B and A respectively.

Defendants Motion to Consolidate

Case 1:13-cv-00631-SS Document 17 Filed 11/12/13 Page 3 of 7

Case 1:13-cv-00631-SS Document 17 Filed 11/12/13 Page 4 of 7

Defendants Motion to Consolidate

Case 1:13-cv-00631-SS Document 17 Filed 11/12/13 Page 5 of 7

for trial and scheduling purposes only.

Defendants Motion to Consolidate

Case 1:13-cv-00631-SS Document 17 Filed 11/12/13 Page 6 of 7

Defendants Motion to Consolidate

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

Defendants Motion to Consolidate

PA$%R Service $enter

Date File" 10/28/2013

10/2$/2013 10/2$/2013 10/2$/2013 10/2$/2013 11/01/2013

PAC*# Ser&ice Center

domiciled in the State of Texas.

13. 14. 15. 16.

action on behalf of themselves and others similarly situated.

behalf of themselves and others similarly situated.

This action is maintainable as a class action under Federal Rule of Civil

By: /s/ Jason P. Steed

lLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY ANI) INJUNCTIVE RELIEF

Phariss complain of I)efendants and allege:

PLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT

Plaintiff Cleopatra Dc Leon is a Texas resident. She legally married Plaintiff

partner, Plaintiff Vie Holmes, in Texas.

Plaintiff Vie Holmes is a Texas resident. He wants to marry his long-time

partner, Plaintiff Mark Phariss, in Texas.

and (4). 2201, and 2202.

Venue is proper under 28 U.S.C.

1391 because Defendant Rickhoff resides in

PLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT

fle Leon and Dinietnian

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,

On August 9. 2013. 1-lolmes and Phariss celebrated their sixteenth anniversary.

PLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT

32. Not only does it prevent samesex couples from marrying.

2.001. The Texas Family Code requires the bureau of

PLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT

Plaintiffs Inability to Mam Causes Substantial Harm.

Plaintiffs su lThred and

to sufThr substantial and irreparable harm as a

Texas constitutional and statutory prohibitions against recognizing same-sex

Texas refusal to pennit Plaintiffs to marry or recognize their out-of-state

Texas refusal to marry or recognize Plaintiffs marriage also denies Plaintiffs

8.051. Additionally, absent conferring power of attorney or other written

PLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT 105030373

REQUEST FOR DECLARATORY RELIEF CLAIM ONE: DUE PROCESS

5 1. forth herein. 52.

Plaintiffs incorporate by reference paragraphs I through 50, supra. as if fully set

The Texas Constitution and statutes at issue here impinge on fundamental

PLAINTIFFS ORIGiNAL COMPLAINT FOR DECLARATORY JUDGMENT 105030373

Texas constitutional and statutory law restricts civil marriage to heterosexuals.

PLAINTIFFS ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT

59. forth herein. 60.

Plaintiffs incorporate by reference paragraphs 1 through 58, supru. as if fully set

Insofar as Defendants, acting under color of state law. enforce Texas