De Leon v. Perry Transcript

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CLEOPATRA DE LEON, NICOLE

DIMETMAN, VICTOR HOLMES, and MARK PHARISS, Plaintiffs,
)CIVIL ACTION NO. 5:13-982-OLG

) ) ) ) )
v. RICK PERRY, ET AL,

Defendants.
)February 12, 2014 ) )

) )
TRANSCRIPT OF PRELIMINARY INJUNCTION HEARING BEFORE THE HONORABLE ORLANDO L. GARCIA DISTRICT COURT JUDGE APPEARANCES: For the Plaintiff: BARRY A. CHASNOFF, ESQUIRE
300 Convent Street, Suite 1500
San Antonio, Texas 78205

DANIEL MCNEEL LANE JR., ESQUIRE 300 Convent Street, Suite 1600 San Antonio, Texas 78205
For the Defendants:

19 20 21 22 23 Also Appearing: 24 25
MICHAEL P. MURPHY
Office of the Solicitor General P O Box 12548 Austin, Texas 78711-2548 WILLIAM T. DEANE Assistant Attorney General P O Box 12548 Austin, Texas 78711-2548 JIMMY BLACKLOCK, MATT PEPPING, SUSAN A. BOWEN, GERARD RICKHOFF
Produced by mechanical stenography; computer-aided
transcription
Leticia Ornelas Rangel, CSR
2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: P-R-O-C-E-E-D-I-N-G-S Okay. Good morning. You may be
seated. Good morning, everyone. Number 13 Civil 982.
We'll proceed to Cause
De Leon, Dimetman, Holmes, Phariss v. The Honorable
the Honorable Rick Perry, Governor of Texas. Greg Abbott, Attorney General of Texas.
The Honorable Gerard
Rickhoff, County Clerk for the County of Bexar and David Lakey, the Honorable David Lakey, Commissioner of the Texas Department of State Health Services. We'll have some announcements, please. MR. CHASNOFF: Your Honor, Barry Chasnoff, Neel
Lane, and Matt Pepping for the plaintiffs. THE COURT: Mr. Chasnoff? MR. CHASNOFF: THE COURT: MR. DEANE: Attorney General. I am. And for the State of Texas? Okay. And who is the lead lawyer?
Okay.
Your Honor, I'm Bill Deane, Assistant
And with me is Michael Murphy from the
Attorney General's Office, Assistant Solicitor General; and our Supervisor Jimmy Blacklock, a Deputy Attorney General. And Mr. Murphy will make the argument for the State. THE COURT: MS. BOWMAN: All right. And for Bexar County?
Your Honor, Susan Bowman from the
Bexar County District Attorneys Office here with Bexar County Clerk Rickhoff. Leticia Ornelas Rangel, CSR
3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Mr. Rickhoff. Good morning.
MR. RICKHOFF: THE COURT: from the plaintiffs.
Good morning. Let us begin. I'll hear I believe And then if
And -- okay.
You have a period of time.
you have been told that time, both of you have.
you need additional time, do not feel that you need to rush. I want both sides to have ample opportunity to make their case for them. both sides. I do have a specific set of questions for
If you'll cover those areas and cover what you
feel necessary for your side. You may proceed. MR. CHASNOFF: Thank you, Your Honor. I'm Barry
Chasnoff for the plaintiffs. made by Neel Lane. THE COURT: Okay.
Our responsive argument will be
MR. CHASNOFF:
I'm here to proudly represent four Two of
exemplary citizens of this state and of this country.
them are veterans, honorably discharged after long service to their country. THE COURT: And I think everyone in this room would If the good
be grateful for their service to their country.
Lord permits me to live till March 11, that will give me 20 years on this bench, and I have always taken it as a responsibility and privilege to acknowledge when we have -when I select jurors and those persons who are -- have been Leticia Ornelas Rangel, CSR
4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or are members of the military, I acknowledge their service. So I think we can all agree at the this point that we're grateful for that. You may proceed. Thank you, Your Honor. One is a
MR. CHASNOFF:
Today, two of them work as lawyers.
physician's assistant and a professor at a university. Another works as a statistician. The undisputed evidence in
this case shows that they are honorable, productive contributors to society, and yet they find themselves here today because the State of Texas chooses to deny them the right to marry the ones they love, a right that the Supreme Court found in case after case to be among the most precious and fundamental of rights, that is the right to marry. Now whether our clients are denied that right by the State of Texas out of animus, ignorance, and irrational bias as we think the record shows, or if it's merely because as the State would argue because that's the way we've always done it. our view. THE COURT: Is what? Is abhorrent-The denial of the right to marry is abhorrent in
MR. CHASNOFF: THE COURT:
Okay. -- and a violation of the
MR. CHASNOFF: Constitution. THE COURT:
Okay.
5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in time. MR. CHASNOFF: The ban in the State of Texas helps
to perpetuate the myth of the impropriety of homosexual love. It places an unfair financial and emotional burden on all homosexuals and forces these plaintiffs to live their lives with a stigma that they do not deserve. Mark and Victor want
to marry in their home State of Texas after 17 years of a faithful, loving relationship, but the State of Texas says they cannot because they are gay. Nicole and Cleo wanted to
marry in the State of Texas, but they could not because they're lesbians, so they had to travel Massachusetts. have a child together whom they are raising in a loving, nurturing home. For many reasons they want the State of Some of those reasons are They
Texas to recognize their marriage.
financial, as we've laid out, but it's also because it's a fundamental right to marry. It should not be denied simply
because Mark and Victor, Nicole and Cleo were born with an immutable sexual orientation that some people just happen to not like. THE COURT: Give me an example of what are they --
they were married in the State of Massachusetts. MR. CHASNOFF: THE COURT: Yes, Your Honor.
And they moved to Texas at some point
Give me an example or examples what they have been I mean, they remain married, so where
denied, if anything.
are the roadblocks, if any? Leticia Ornelas Rangel, CSR
6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in Texas. MR. CHASNOFF: Your Honor, first of all, they lived
At the time they married they went to
Massachusetts to get married and came back. THE COURT: Right. I understand that.
MR. CHASNOFF:
And there are financial burdens both
on the federal side and the state side by not having their marriage recognized. THE COURT: Now at the federal -- issues now
resolved as a result of Windsor or are those problems still exist? MR. CHASNOFF: The problems still exist. Windsor
addressed the Defense of Marriage Act which was a federal prohibition on the recognition of same-sex marriage. THE COURT: Right. Justice Kennedy in that -- in his
MR. CHASNOFF:
opinion was addressing only that, and in spite of the dissent from Scalia which said that the Defense of Marriage Act set a roadmap for recognizing same-sex marriage, that issue was not addressed in the majority opinion. There are a number of roadblocks faced. On the
federal side, Attorney General Eric Holder has just announced a few days ago that the federal government was going to recognize same-sex marriage to the extent federal laws-THE COURT: about Mr. Holder. Well, I understand. Let's not worry
If you will address my question which is: Leticia Ornelas Rangel, CSR
7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point. MR. CHASNOFF: THE COURT: trick questions. both sides. Okay. But some of the-What benefits, if any, or roadblocks, if any, have your clients incurred or anticipate to incur as a result of Texas's constitution ban? MR. CHASNOFF: Yes, Your Honor. There are a list
of the -- in our brief of the financial benefits they do not get. THE COURT: And can you tell me one, two, or three? All right. I'm going to name some
MR. CHASNOFF:
others, and I'm going to get Mr. Lane -THE COURT: Sure. And he can address those at some
And, mind you, none of my questions are
I'm trying to gather an understanding of
And you may proceed. All right. One of the more
MR. CHASNOFF:
emotional issues, Nicole could not be on the birth certificate of her child, even though she and Cleo were married because the State of Texas would not put her name on the birth certificate. THE COURT: That's like the person in the Ohio case
who the funeral director -- or rather whatever state official in charge creating a death certificate could not list the spouse. As a result, the spouse -- the decedent spouse,
could not then derive whatever benefits the State of Ohio Leticia Ornelas Rangel, CSR
8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Columbia. would give that person. MR. CHASNOFF: THE COURT: That's correct, Your Honor. Go ahead.
Okay.
MR. CHASNOFF:
It's the same situation here, were
one of them to die, there would be no intestate benefits allowed. There are enumerable. THE COURT: Okay. And if that person, your client,
lived in the State of Massachusetts, she would receive those benefits that she could not receive here. MR. CHASNOFF: THE COURT: Correct. Go ahead.
Okay.
MR. CHASNOFF:
Or if she lived in anyone of the
states -- 17 states that recognize it. THE COURT: Go ahead. MR. CHASNOFF: them are financial. THE COURT: Okay. You can proceed. Now what my clients are All right. So as I said, some of Seventeen states and the District of
MR. CHASNOFF:
Right.
asking for is the rights, the benefits, the responsibilities, and the respect that comes with being married in this country. Now, it's undisputed that -- excuse me, that Vic
and Mark applied for a marriage certificate and were denied. THE COURT: As in Mr. Rickhoff's office denied it
because he was in compliance with the law. Leticia Ornelas Rangel, CSR
9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CHASNOFF: THE COURT: Correct.
Okay. He denied it because Article One,
MR. CHASNOFF:
Section 32 of the Texas Constitution and the corresponding provisions of the Texas Family Code which we're just going to refer to all as Section 32-THE COURT: Right. -- prohibited him from doing that,
MR. CHASNOFF:
and he was following the law. THE COURT: That's correct. It's also not disputed in this case,
MR. CHASNOFF:
as I said, Nicole and Cleo were married in 2009 and that they are denied by the State certain financial benefits which would flow from that marriage if it were recognized. only reason they are not recognized is that they are lesbians. THE COURT: Let me ask you, counselor, is the right And the
to marry and the right to marriage recognition the same right or are those two different rights? What I'm saying is, for
example -- I know you know what I'm saying, but let me clarify it for the record. Can -- there are two issues in
this lawsuit, whether a same-sex couple living in Texas can marry and whether a same-sex couple who is already married from another State who lives here, are they entitled to benefits. Can one exist without the other? Leticia Ornelas Rangel, CSR Is it the same
10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 right or two different rights? MR. CHASNOFF: I think an argument could be made
that under full faith of credit that the State should recognize a marriage performed in another state, and it is possible to parse it so that one can recognize one and not the other. But from our view, the right is fundamental, both
if you get there on the due process and equal protection on one, you get there on the other. THE COURT: And I believe the District of Utah or
the District of Ohio, the two issues were presented in the same court but the court addressed only one concluding that having resolved one that resolved the second one. MR. CHASNOFF: circumstance-THE COURT: Okay. -- because the gentleman, husband, As a practicable matter under that
MR. CHASNOFF: was on death's door. THE COURT:
Right.
Okay.
Go ahead.
MR. CHASNOFF:
As I said, we believe that it
violates the 14th amendment, all laid out in our briefing as the Court knows. I want to bring to the Court's attention something Justice Black said in 1940. Under our constitutional system,
courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are Leticia Ornelas Rangel, CSR
11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement. We are here today to ask for that refuge from this Court and that you secure for them the rights that the Constitution guarantees them. We believe the Constitution dictates that We believe that justice
Section 32 be held unenforceable.
requires that that decision be made as soon as possible. As the Court knows, we've asked for a preliminary injunction. There are four -- there's a four-factor test
which applies to a preliminary injunction, as the Court is well aware of. The first test, that is that we the
plaintiffs have to show a substantial likelihood of success. For the reasons I'll explain, we believe that these circumstances, if we succeed on that, it answers the other four. We will talk more about why there is a substantial
likelihood of success, but the second factor is irreparable harm. THE COURT: Right. If we are substantially likely to
MR. CHASNOFF:
succeed, there is per say irreparable harm because it is irreparable harm to a private citizen of his or her constitutional rights. In addition, in terms of harm, we've
offered extensive, un-rebutted evidence regarding the specific harms, financial, legal and emotional. exhibits is a declaration from Dr. Eien Mier. Leticia Ornelas Rangel, CSR One of our He is a
12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Columbia University PHD. He is a professor at the University His declaration is Exhibit 58.
of California School of law.
He explains that Section 32 that I'm quoting reflects and propagates the stigma that lesbians and gay men do not have intimate relations that are similar to and as valuable as heterosexual couple's relationships. He goes on to explain
that this creates a stigmatizing social environment where it is possible to discriminate people based on their sexual orientation. And he says -- quoting him, this discrimination
causes, quote, psychological distress, physical and mental health problems, suicide, and lowering sense of well being. This testimony is un-rebutted. no counterevidence. The State presented
As the Court is aware, at the
preliminary injunction stage, quoting from the Digital Generations case, evidentiary standards are less formal and the Court may rely on otherwise inadmissible evidence when the facts are not disputed. And then the Williams v. San
Francisco case, the Court must take as true statements of fact contained in un-rebutted affidavits. single piece of paper. There's not a The
Not a single piece of evidence.
State isn't calling any witness to rebut what we say. And I would like to take a moment to express actually some appreciation to the State. This Court can take
judicial notice of what has happened in the other same-sex marriage cases around the country where defendants have Leticia Ornelas Rangel, CSR
13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or are? that. MR. CHASNOFF: There are a number of reasons. The offered pseudoscience and testimony to counter the type of evidence we've put on. I respect and appreciate that the By not doing so,
State of Texas has not attempted to do so.
however, the State is conceding for the purposes of this hearing that our evidence on these points is correct and to be taken as true. Thus, this Court should and can rely on And so, as I said, the second
the evidence we've submitted.
factor of irreparable harm is met. The third factor is also met as a matter of law if we show substantial likelihood of success. And that question
is whether granting the preliminary injunction will cause harm to the defendants that outweighs the good to us. But
there is no harm to the State of Texas from this Court's enjoining an unconstitutional law. And as the fourth factor, whether this injunction would serve the public interest. It is clear that enjoining
the enforcement of unconstitutional law is in the public interest. So we come down to the first test: Are we
substantially likely to succeed. are. THE COURT:
We strongly feel that we
On what basis do you believe you would
I know you believe that, but tell me why you believe
first is, as we have said in our papers, we believe Leticia Ornelas Rangel, CSR
14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 heightened scrutiny should be applied in this case. briefed that issue extensively. THE COURT: Yes, you have. And I don't want to spend too much We've
MR. CHASNOFF:
time on it, but I want to briefly mention a few points. THE COURT: Go ahead. The four factors, just like there
MR. CHASNOFF:
are four factors on a preliminary injunction, there are four factors that the Courts apply in determining whether to apply heightened scrutiny. four points. We have presented our evidence on all The defendants
And no contradicting evidence.
rest their claim that heightened scrutiny should not be applied based on the argument, which we think is hollow, that the Fifth Circuit and the Supreme Court have not applied heightened scrutiny to sexual orientation cases. THE COURT: Well, isn't that sufficient -It is not --
-- I mean, if the Supreme Court and the
Fifth Circuit have not, who am I to do anything different? MR. CHASNOFF: THE COURT: (Laughter.) MR. CHASNOFF: I was going to say, even if it It's a fair question, Your Honor. It's mine.
I know.
weren't fair, I would tell you it was fair. THE COURT: Okay.
15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CHASNOFF: argument rings hollow. But the reasons that we think their One of these -- they -- the
defendants, when they say -- that ignored the multitude of cases that have found that heightened scrutiny applies, we've cited them in our brief. They include Golinski and Pedersen.
Three weeks ago the Ninth Circuit held that heightened scrutiny applies to discrimination based on sexual orientation. That is in the Smithkline case. We cited that
in our reply brief.
The cases the defendants cite are all
readily distinguishable. First of all, some of the cases were decided before the criminalizing of homosexual conduct was found to be unconstitutional in Lawrence v. Texas. And there has been a
change in the view in the law of the status of these claims. The Kitchen case, which I'll talk about in a few minutes, discusses that development. So many of them were old cases
before Lawrence, and the other cases that they cite that don't get to heightened scrutiny are because the Court found it unnecessary to reach it. Court said: In each of those cases, the
I don't have to decide whether heightened
scrutiny applies because this does not mean a rational basis. There is not a rational basis, so I need not address that. We think that the time is right and the law is right for applying heightened scrutiny to cases based on discrimination against people's sexual orientation. Leticia Ornelas Rangel, CSR
16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Four factors. I will discuss them briefly. The
first is whether gays and lesbians have suffered a long history of discrimination. Exhibits 23 through 49 in our -There have
to our papers recount that history in detail.
been numerous cases which we cite that hold that gays and lesbians have suffered a long history of discrimination. not going to go through all the evidence we submitted to demonstrate that there's a history and continuing discrimination. I just want to discuss one example. Okay. Lawrence v. the State of Texas which That's the case in 2003 that I'm
THE COURT:
MR. CHASNOFF:
I had mentioned a moment ago.
struck down Texas criminalization of homosexual conduct. More than a decade ago, the Supreme Court said that law is unconstitutional. Since then, well meaning Texas
legislatures have tried to take that unconstitutional law off the books. But as we show in Exhibit 38, every attempt to So even though it is
take it off the books has failed.
unconstitutional, Texas retains the law criminalizing homosexual conduct. You will see it as you look through our
history of discrimination that it's consistent to what's been done and the attitude that has been taken. discrimination. The second factor. THE COURT: But it's not enforced. And I am sure Long history of
17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the State of Texas, like many states, perhaps have laws on the books that have been outdated, no longer enforced. legislatures are busy enough dealing with active issues. They don't spend too much time going back and repealing a 1798 or 1812 statute. MR. CHASNOFF: Two responses to that. Your Honor, The
one, is this is different in that -- as we show in Exhibit 38. There have been attempts to repeal. And it's not
because they weren't taking the time.
It's because it was
spoken out against or want to keep it on the books. THE COURT: Okay. And the second point is: We do have
MR. CHASNOFF:
example of one such law discriminating against homosexuals that is vigorously enforced by the State of Texas and that would be the one we're on today. THE COURT: Right. Okay. Go ahead.
MR. CHASNOFF:
I would point out to the Court that
in a number of states where these challenges have been brought, the Attorney Generals of those states have determined not to fight. Virginia is the latest example.
Here the State of Texas is opposing. THE COURT: Abbot's job. MR. CHASNOFF: Well, Your Honor, I would submit Well, that's their job. That's General
that General Abbot's job is to enforce those laws which are Leticia Ornelas Rangel, CSR
18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 constitutional. THE COURT: Well, when 76 percent of the people of
Texas vote in a particular way, I think that sends a signal to the Attorney General, but that's why we're here today. MR. CHASNOFF: Yes, Your Honor. It sends a signal
to the Attorney General to appeal to the political base. It's not -- that's not a constitutional analysis, Your Honor. THE COURT: Go ahead. The second factor in determining
MR. CHASNOFF:
whether heightened scrutiny applies is whether some characteristic of the class of people being discriminated against which would justify it because of that class is inability to contribute to society. Frankly, I found no And in
cases where a court had found that to be the case.
this case, certainly sexual orientation has no relation to a person's ability to contribute to society. We've provided a
great deal of evidence attesting this fact including Exhibits 40 and 41. We've cited to numerous cases holding the same. And they
And the defendants do not attempt to rebut this.
can't credibly do so because the State of Texas knows what we know. Gays and lesbians contribute to our society. They work for the fire And they They are
teachers, doctors, nurses. department.
They work for the police department.
proudly serve, as Mark and Cleo did, in our Armed Forces. Their sexual orientation is no limit on their ability to Leticia Ornelas Rangel, CSR
19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 power. contribute to society. The third factor in heightened scrutiny is whether the characteristic is immutable. All of the scientific It cannot
evidence is that sexual orientation is immutable. be changed.
Studies which we've attached, Exhibit 42 among
others, reports that gays and lesbians attest that they have little to no choice about their sexual orientation and that these changed therapies that have been talked about so much are ineffective and actually counterproductive. The fourth factor is does the class have political The very existence of the same-sex marriage law is
evidence of that and we feel the fact that the law against homosexuality remains on the book. I would note that the
mere fact that in some states gays and lesbians have had success on the same-sex marriage issue does not mean they have political power. It just means that they were being We also submitted a
treated in an unconstitutional way.
declaration from Professor Garry M. Segura, a Stanford University Professor. He testifies in that declaration to
the political powerlessness of gays and lesbians, once again un-rebutted. Having met the four factors, the Court should apply heightened scrutiny to Section 32. If heightened scrutiny is
applied, the defendants are going to have to show that Article 32 -- or, rather, Section 32 is narrowly tailored to Leticia Ornelas Rangel, CSR
20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 an important government objective. It is not -- and They simply fall
defendants don't even argue that it is.
back on, well, we don't get to heightened scrutiny so we don't have to address the factors. And as some other courts
have not felt they needed to get to heightened scrutiny, this Court may conclude that even the rational basis test has failed. We believe that it's failed. To survive rational
basis examination, Section 32 must have some rational relationship to a legitimate government purpose. none. Section 32 fails rational basis. It has
It violates our
client's 14th amendment rights. As the Court knows, the rational basis test is very differential from the state. In theory, it's our burden to
refute every potential rational basis for these laws to remain on the books. In our opening brief, we did our best
looking at cases where same-sex marriage had been opposed and at the divorce case where the State of Texas had taken a position to try to figure out what their supposed rational basis would be. We identified three. Tradition. It's how And
we've always done it.
Encouraging rational procreation.
ensuring the children will be raised by a mother and father in a stable household. That's what has been argued in other cases. When we got the response from the State, in part they started by saying, oh, you didn't address all the Leticia Ornelas Rangel, CSR
21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 potential rational basis. But they didn't identify any other We've The
potential rational basis than the three we identified. addressed them all. I want to talk briefly about them.
first rational basis is tradition. Everybody else does it.
We've always done it.
It's not a rational basis for law.
The Supreme Court held in 1970 in Williams v. Illinois, quoting: Neither the antiquity of a practice nor the fact of
steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack. Arguing that Section 32 should be upheld because Texas law has always excluded same-sex marriage is a circular argument. It's not a rational basis. The other two supposed rational basis: Encouraging
rational procreation and increasing the likelihood of children will be raised by a mother and father in the context of a stable, longterm relationship. Section 32 is not First, The
designed to and doesn't meet those supposed purposes. Section 32 does not encourage responsible procreation.
fact is the laws in the State of Texas do not require that a married couple commit that they are going to have children. It's never been a qualification for marriage. permitted in Texas if a couple is infertile. A marriage is A marriage is
permitted in Texas even if the woman is beyond child-bearing age. I had an aunt who was a widow at the age of 80. She
remarried.
The State didn't come up and test her to see if Leticia Ornelas Rangel, CSR
22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 she was going to be able to have children. Many couples these days decide they're never going to have kids, but they're allowed to marry. The State's
argument that these people cannot marry because marriage in Texas is all about procreation is without merit and borders on the ludicrous. Nor is there any truth to the suggestion
that same-sex marriage will undermine heterosexual marriage and procreation. It's an absurd suggestion. I've been
married for 43 years to my lovely wife who is out here today. We've raised children. grandchildren. We have been blessed with No
We've loved each other all these years.
person could ask for more.
And I can assure the Court and I
can assure Sally that if Vic and Mark are married I'm not going to rush to a divorce lawyer. THE COURT: Let me ask you something, counselor: There was an institution of That was
Let's go back to tradition.
slavery in this country for a period of time. tradition. You would agree with that.
And then the 13th
Amendment was adopted, passed in Congress, in part perhaps for a majority of the reason that President Lincoln whose birthday is today, persuaded the House of Representative to submit the issue to the people. get rid of slavery. And then the people voted to
Could it not be argued that the issue of
same-sex marriage should require a constitutional amendment. Submit the issue to the people and let them decide that, as Leticia Ornelas Rangel, CSR
23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 position? MR. CHASNOFF: THE COURT: West Virginia case? MR. CHASNOFF: THE COURT: Yes, Your Honor. It is our position. they did that created and led to the 13th amendment. MR. CHASNOFF: Your Honor, the issue of whether a
law is constitutional or not is not an issue that is submitted to a vote. THE COURT: In other words, as has been argued and
stated by the Supreme Court, I believe in West Virginia v. Barnette, that the fundamental right, a fundamental right or a constitutional right, is not subject to the outcome of an election. MR. CHASNOFF: THE COURT: Correct, Your Honor. Is that your
Is that what you hold?
And you rely on, among other cases, the
And most recently the -- I think that
was cited in the District of Utah case. MR. CHASNOFF: THE COURT: It was, Your Honor. Go ahead. I commented on -- I made What we
Okay.
MR. CHASNOFF:
All right.
a little personal comment on my longterm marriage.
want here today is for people like Vic and Mark and Cleo and Nicole to have the opportunity to have the same blessing in their life that I've been fortunate enough to have. Leticia Ornelas Rangel, CSR It
24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 shouldn't be denied them because of their sexual orientation. And it's not just my personal view. We've presented
unrefuted evidence that same-sex marriage has no negative effect on heterosexual marriage. declaration from Dr. Lee Badgett. Our Exhibit 7 is a She analyzed statistics
from the Netherlands where same-sex marriage has been permitted for a long time and from the State of Massachusetts which has permitted it for quite while. Her conclusion:
Same-sex marriage has no effect on heterosexual marriage. What's the response by the State to this evidence? don't respond. No rebuttal evidence. They
They don't even argue
that we're incorrect on it. The argument that Section 32 destabilize -destabilizes procreative environments is without proof. fact is that same-sex couples are raising children. and Cleo have a child they're raising. The
Nicole
If Section 32's
purpose is to foster responsible procreation and taking care of children, what it should do is ensure that same-sex couples who are conceiving or adopting children can be married so that they can raise those children in a same-sex marriage. day. Those adoptions are legal. It's happening every But what is being forced
They're not going to go away.
upon these families are these children are being raised in families where their parents cannot be married. THE COURT: But Section 32 doesn't prohibit
25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 adoptions, right? MR. CHASNOFF: It does not. It does not. The
State of Texas permits adoptions by same-sex couples. THE COURT: Okay. Go ahead.
MR. CHASNOFF:
I've learned that San Antonio
happens to be the area with the highest percentage of same-sex couples raising adopted children. Our neighbors in
the -- our communal neighbors in this city are raising children in same-sex relationships, and those children have the stigma of their parents not being married. THE COURT: All right. Go ahead.
MR. CHASNOFF: this to just argument.
And we didn't want to leave any of We've cited in our brief the American
Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the Child Welfare League of America. All of
those very substantial and well respected organizations oppose any marriage limits for same-sex parents because of the abundance of scientific evidence showing that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents. But we didn't stop there. We provided an expert
declaration from Dr. Michael Lamb, a professor at Cambridge University who holds a Masters degree from John Hopkins and Yale, and a PHD in psychology from Yale. Doctor Lamb in his
26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 declaration that we submitted testifies that more than 25 years of his research indicates that children and adolescents of same-sex marriage are as successful as children of heterosexual parents. So I'd like to address now the State's
responsive evidence, but I can't because they don't put any on. They have not rebutted it. So it is a fact for this
case that sexual orientation of parents is not a factor that affects a child's healthy development. And I go to Windsor, which this Court referred to a few moments ago, when in Windsor decision Justice Kennedy said that defining marriage so as to limit it to a man or a woman, quote: Humiliate tens of thousands of children now And he said that when a Makes it even
being raised by same-sex couples.
marriage to heterosexual relationships, quote:
more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Justice Kennedy sees it. We've submitted a wealth of that evidence. All of We --
it demonstrates that heightened scrutiny is appropriate in cases involving discrimination based on sexual orientation. Even if the Court finds that it is not necessary because the defendants fought fairly, even the rational basis test, we believe it's time for some Court to take the issue on and say that it does meet heightened scrutiny. Some -- the Ninth
27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Circuit has recently found that I believe. But it is correct
that in this case they don't even meet the rational basis. To get there on rational basis, it's not enough -even though we've got a heavy burden, it's not enough for the State just to say, you don't meet your burden. They have to
demonstrate how the rational basis is met by the statute. The defendants in their papers don't. Maybe they will come
up with something today, but in their papers they don't. They don't try to offer any evidence supporting their position that our evidence is incorrect. they can. I don't believe At that time we
We filed our motion in November.
attached all of the expert declarations. Here is our case. See it.
It was out there.
The defendant's response brief No declarations and response. No witnesses. Because
was filed a month later.
Another two months have gone by.
there is no credible evidence supporting this purported rational basis. Now for the first time yesterday, a schedule order was submitted to the Court. We've been going back and forth.
And for the first time the State has said, well, we may have some experts we want to put on, so we need to stretch the scheduling order out. We strongly disagree with that, but
that's a separate issue that at some point the Court will get to. It's interesting that in this case -- I've never been a
judge, but I have always assumed that one of the hardest jobs Leticia Ornelas Rangel, CSR
28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for a judge is weighing and balancing the evidence. The
Court doesn't have to do this in this case because there is no evidence on the other side. Section 32. There's no rational basis for
It's unconstitutional.
Now, two arguments you'll likely hear from the defendant when they stand up. Baker v. Nelson is binding. First, they will argue that And the Court doesn't have
jurisdiction and can't consider any of the plaintiff's evidence. And then they will argue that this is a State's Look briefly at each of those in turn. Baker
right issue.
v. Nelson, a case decided 42 years ago where the Supreme Court dismissed for want of a substantial federal question an appeal from a Minnesota Supreme Court decision rejecting due process and equal protection challenges to Minnesota's refusal to allow same-sex marriage. The State argues this means that Federal Courts have no jurisdiction because of the dismissal for want of a substantial federal question. eviscerated Baker. But subsequent cases have
Since Baker, the Supreme Court has
decided -- has made decisions in Windsor, Lawrence v. State of Texas, and Romer. All of them, the Supreme Court
addressing issues about discriminations against gays and lesbians. These decisions recognize that the constitution And then if you look at the more
protects gays and lesbians.
recent decisions by District Court -- Federal District Courts Leticia Ornelas Rangel, CSR
29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on Baker, they all say that it has no precedential value. And then the cases the Court referred to in Utah and Oklahoma found that doctrinal developments of equal protection and due process jurisprudence developments which we discussed in our opening brief are reasons why Baker is no longer controlling. Baker is not controlling. This Court has jurisdiction. The
Court has the right to just consider the case on the merits. THE COURT: And that's because Windsor. Windsor and Lawrence and a number of
MR. CHASNOFF: other cases.
And there are detailed analysis of the Baker
defense in some of these other District Court decisions both in the Utah and the Oklahoma case. the world has evolved. THE COURT: And they just found that
The doctrine has evolved. Is it fair to say that we are here
today because the Windsor case happened? MR. CHASNOFF: I think the Windsor case has put
some wind in the sails of these challenge to same-sex marriage. Some of those challenges were ongoing before This one was after. All right. You may proceed.
Windsor was decided. THE COURT:
MR. CHASNOFF:
Well, the second argument I suspect
you will hear from the State is that Windsor affirmed the State's right to define marriage, and, therefore, that this Court should not intervene. Well, the State is right in one Windsor
respect, but it's critically wrong in the key issue. Leticia Ornelas Rangel, CSR
30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 does affirm that the States have the right to define marriage. But if you read the whole sentence or the several But only to the
sentences where they say that, they say:
extent that a definition given by the State is constitutionally permitted. today. That's what we're here about
And no State has the right to limit through a
definition of marriage what the constitution guarantees us all, due process and equal protection of the law. We are not asking this Court to redefine marriage. The Utah case, which is the Kitchen v. Herbert case, the Court held the following, quoting the Court there: The
alleged right to same-sex marriage that the State claims the plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals. The right to
make a public commitment, to form an exclusive relationship, and create a family with a partner with whom the person shares an intimate and sustaining emotional bond. If the
right to same-sex marriage were a new right, then it should make new protections and benefits available to all citizens. But heterosexual individuals are as likely to exercise their purported right to same-sex marriage as gay men and lesbians are to exercise their purported right to opposite sex marriage. Both same sex and opposite-sex marriage are, therefore, certainly manifestations of one right. Leticia Ornelas Rangel, CSR The right
31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to marry applied to people with different sexual identities. As I said, we're not asking this Court to redefine marriage. Our clients just want the same rights as heterosexual couples enjoy, and neither supposed State rights or traditions to stand in the way of them realizing that right. There was a time when some states claim they had a right to deny an education in integrated schools. But the
Supreme Court told those States in 1954, that is not a state right. Prior to that same year, 1954, some States claimed
they had the right to deny citizens of Mexican descent the right to serve as a juror. THE COURT: That's the Hernandez case. Yes, sir.
Okay. Carlos Cadena. The Supreme Court Prior to 1967,
MR. CHASNOFF:
told those States that is not a State right.
some States claimed they had the right to deny a citizen to the ability to marry a person of a different race, Loving v. Virgina. The Supreme Court told those states that is not a And until 2003 some States claimed the right
State's right.
to criminalize private consensual conduct between members of the same sex. The Supreme Court told those States in
Lawrence v. the State of Texas, that is not a State right. The Courts are a bastion for citizens who suffer any violation of their civil rights, and we're asking this Court Leticia Ornelas Rangel, CSR
32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to be a bastion for Nicole and Cleo and Mark and Victor. States rights is a tired and warn justification for unconstitutional laws. Section 32 is not constitutional.
It's time for this Court to tell the State of Texas the State cannot deny these group of people their constitutional right to marry the person they love. THE COURT: Thank you. On behalf of the
Thank you, counselor.
State of Texas, you may proceed. MR. MURPHY: Thank you, Your Honor. Mike Murphy
for the State defendants.
Before I make my formal First, this
introduction, I want to make two quick points:
country is engaged in a robust Democratic and social debate about the merits of same-sex marriage. Some States and some
citizens in other States have chosen to expand the definition of marriage to include same-sex marriage. that in that this occurred in New York. Windsor recognized Other States like
Texas, legislatures, and the citizens of the State have concluded that the better course is to preserve the traditional definition of marriage. THE COURT: MR. MURPHY: Uh-hum. Plaintiffs in this case ask this Court
at the preliminary injunction stage to remove this inherently political issue and this divisive issue from the Democratic process and make it a constitutional question. They
should -- the Court should not do that and reject that Leticia Ornelas Rangel, CSR
33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 indication. The other point that I think needs to be addressed is plaintiffs' continued reference to the State's decision not to supply rebuttal evidence at the preliminary injunction stage to the many affidavits and other evidentiary documents that they filed. What plaintiffs don't recognize is that
factual support is irrelevant and the State is not required to supply any evidentiary basis for the rational basis for State law. So the State is not in any way by refusing or not
submitting rebuttal affidavits or rebuttal evidence at the preliminary injunction stage somehow conceding that plaintiffs are correct or acknowledging that we have no answer to their factual assertions. Turning to the main presentation. The purpose of a
preliminary injunction which is what we're here for today is to maintain the status quo until the Court can resolve the case on the merits. opposite. Plaintiffs here seek exactly the
They ask the Court to temporarily restructure the
institution of marriage in Texas and to rewrite over 150 years of Texas law based on legal arguments that the Supreme Court has squarely rejected. For that reason alone, the The plaintiffs' A PI
Court should deny plaintiffs' motion.
preliminary injunction motion also fails on the merits.
is an extraordinary and drastic remedy, and they have failed to make a clear showing that they're entitled to such relief. Leticia Ornelas Rangel, CSR
34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 standard. They have not clearly shown a likelihood of succes on the merits. They have not clearly shown irreparable harm. They
have not clearly shown the balance of the equities tips in their favor. And they have not shown that that injunction is
in the public interest. Turning first to the first element of the PI Plaintiffs have not clearly shown the likelihood To the contrary, the
of success on the merits.
constitutional claims that they present here were squarely rejected by the Supreme Court in Baker v. Nelson. Contrary
to plaintiff's assertion, Baker v. Nelson remains a binding precedent. The Supreme Court has clarified in one -- lower
Courts against including that later Supreme Court decisions implicitly overrule an earlier precedent. Agostini case. That's in the
In the same case, the Court instructed lower
courts to follow the Supreme Court precedent even when it appears that they have been overruled by implication leaving the Supreme Court the prerogative of overruling its own decisions. In that spirit, the Supreme Court explained in Hicks v. Miranda case that lower courts are bound by cases like Baker until such time as the Supreme Court informs them that they are not. The Supreme Court has never informed
lower courts that they are no longer bound by Baker v. Nelson. Plaintiffs point to Romer, Lawrence, and Windsor Leticia Ornelas Rangel, CSR
35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 primarily as a further argument that somehow Baker has been implicitly overruled. But plaintiffs are wrong. Windsor did
not in any way -- did not address Baker v. Nelson, and if anything -- and supported the fundamental holding of Baker v. Nelson which is these questions are political questions, not federal constitutional rights. Plaintiffs even admit
that Windsor did not address the constitutional question raised by Baker, so it's hard to see that they can clearly show that Windsor implicitly overruled Baker v. Nelson. More importantly, the majority opinion in Windsor expressly avoided extending its ruling to state marriage law. With respect to Lawrence, the Court expressly clarified that the case did not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. Furthermore, Lawrence is easily
distinguishable here because the Court was concerned with private, intimate sexual relationships, not the inherently public institution of marriage. with marriage. And Romer had nothing to do
Unlike the longstanding and traditional
definition of marriage and the State's well-established authority to define and regulate marriage, Romer addressed the law that imposed discrimination of an unusual character that was not within our constitutional tradition. The only federal appellate court to address to question of Baker's continued viability has held that Baker Leticia Ornelas Rangel, CSR
36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 name. remains binding precedent. And that's the case Massachusetts
v. HHS in the First Circuit in 2012. THE COURT: MR. MURPHY: Human Services. THE COURT: MR. MURPHY: THE COURT: MR. MURPHY: All right. The citation is 682 F.3d 1. All right. At most here, we have a dispute among Give me that case again, please. Massachusetts v. USHHS, Health and
Federal District Courts about the continued binding nature of Baker. But the mere existence of dispute about the legal
implications of Baker bars a preliminary injunction here because plaintiffs cannot make a clear showing that they're likely to prevail on the merits. There are three cases -- or
four cases that I'll cite that have held that Baker remains good law. The most recent is the case Merritt v. Attorney I don't have the Westlaw cite for that
General of Louisiana. case.
I'll have to provide it, if you would like it, Judge. THE COURT: MR. MURPHY: THE COURT: MR. MURPHY: THE COURT: MR. MURPHY: 2013 Westlaw. Leticia Ornelas Rangel, CSR That's in your brief? I don't know if it is. Okay. Sure. Tell me the name again, counselor. Merritt is the first name. Short
37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. MURPHY: THE COURT: MR. MURPHY: Baker was binding. Okay. 60 44 329. All right. In that case, the Court held that
The Sandoval case out of Nevada, the
Jackson case out of Hawaii, and the Wilson v. Ake case out of Florida, all federal district court decisions that held that Baker remains binding precedent. The only two cases that
plaintiffs cite are the Bishop case and the Kitchen case out of Utah. But in Bishop -- actually, both cases recognize And so at
that Windsor did not directly address the issue.
bottom we have a dispute among the federal courts, and that stands against a preliminary injunction because it cannot show, clearly show, the likelihood of success on the merits. But notwithstanding Baker, plaintiffs still cannot prevail on the merits because Texas marriage law does not violate plaintiffs's fundamental right to marry. Same-sex
marriage is not included in the fundamental right to marry. Neither the Supreme Court nor any federal court of appeals has ever recognized that same-sex marriage is a fundamental right. Plaintiff's assertion that same-sex marriage is
included in the right to marry fails miserably the Washington v. Glucksberg standard which the Court established to ensure that the substantive due process fundamental rights did not sweep too broadly. Leticia Ornelas Rangel, CSR
38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 There are two tests under Washington v. Glucksberg, and same-sex marriage fails both of them. First, it's
undisputed that same-sex marriage is not deeply rooted in American history and tradition. It first appeared on the
scene in Massachusetts in 2004, and, in fact, is a more recent innovation than Facebook. Even Windsor recognized
that until very recently it was generally understood in society that marriage was limited to a man and a woman. Moreover, it's not carefully defined. No Court -- no Supreme
Court decision that plaintiffs have cited has ever included same-sex marriage in the definition of marriage. They had no opportunity or reason to consider same-sex marriage. They were focused entirely on the And it would be wrong
traditional recognition of marriage.
to say that the Court's recognition of the fundamental right to marriage in those contexts somehow broadly sweeps in the definition of -- or broadly sweeps in same-sex relationships. Plaintiffs cite to this -- the Utah case as a justification for their interpretation that same-sex marriage is part of the fundamental right to marriage. But the The
Court's reasoning is unpersuasive and deeply flawed. Court essentially concluded that same-sex marriage is
included in the fundamental right to marriage, but then they refuse to apply -- the Court refused to apply Glucksberg on the ground that marriage has already been deemed a Leticia Ornelas Rangel, CSR
39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fundamental right. That flawed logic is just simply an
end-run around the standard the Court established for determining the boundaries of fundamental rights. Plaintiffs
also failed to make the necessary showing that they will prevail on the merits of their equal protection claim. begin with, sexual orientation is not a suspect or quasi suspect classification. Neither the Supreme Court nor the Fifth Circuit have ever held that sexual orientation is a suspect or quasi suspect classification. In fact, Fifth Circuit has To
acknowledged that the Supreme Court has never done that in the Johnson case and in the James case. And the Supreme
Court has consistently avoided applying heightened scrutiny when considering the laws that burden homosexuals. look at Romer, Lawrence, and Windsor. You can
They all either
applied expressly or implicitly rational basis for review. And plaintiffs' contention that somehow gay men and lesbians should be considered or treated as a suspect or quasi suspect class is just -- is a flawed argument. Gay men
and lesbians are not politically powerless in their past or a minority. Whatever the past history of discrimination that
plaintiffs present in their affidavits and other documents, the public acceptance and Democratically enacted legal protections for gay men and lesbians has increased dramatically across this country in a very short time. Leticia Ornelas Rangel, CSR The
40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 staggering political gains gained by these people in such a short time belie their assertion of political powerlessness. In fact, in just the ten years that same-sex marriage has existed, over 17 states -- or 17 States and the District of Columbia now recognize same-sex marriage. Plaintiffs cite the Smithkline Beecham case out of the Ninth Circuit as justification for a heightened scrutiny for their equal protection claim. The Court should not adopt Judge Reinhardt's
that reasoning because it's deeply flawed.
opinion simply misinterpreted Windsor to implicitly impose heightened scrutiny. But Windsor did not even suggest that It struck
sexual orientation is a suspect classification.
down Section 3 of DOMA because they concluded the only reason for the law was animus against gay men and lesbians. And
animus is never a legitimate government interest for a law. Because plaintiffs have demonstrated -- have not demonstrated a fundamental right or a suspect classification, rational basis review applies. Under that exceedingly
differential standard, Texas marriage law must be upheld if there's any theoretical rational justification for the law. Plaintiffs bear the burden of negating every conceivable basis which might support the laws as well established. But
they dismiss this well established standard as illogical, but provide no elaboration or justification for their argument that the Court should not follow well-established rational Leticia Ornelas Rangel, CSR
41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 basis review standards. Notwithstanding the fact that plaintiffs have failed to meet their burden of negating every conceivable rational justification for the laws, there are a number of potential rational bases for Texas marriage law. It is
undisputed that only opposite-sex relationships naturally produce offspring. Moreover, promoting safe, stable family
environments for procreation and rearing children by a mother and a father are well recognized legitimate government interests. Plaintiffs do not dispute that these are Their focus is that the
legitimate government interests.
State somehow -- that state law does not rationally relate to those governmental interests. They claim there's no rational relationship between excluding same-sex couples from marriage and advancing the State's interest in responsible procreation and child rearing, for example. But that is not the test. Although,
that is the test that the Oklahoma and Utah courts erroneously adopted, which is some sort of heightened scrutiny test masquerading as rational basis review. The Supreme Court has held that there is a rational basis for a classification when the inclusion of one group promotes a legitimate government purpose and the addition of other groups would not. Here, extending the benefits and
protections of marriage to opposite-sex couples uniquely Leticia Ornelas Rangel, CSR
42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 promotes the State's legitimate interest in a way that extends -- in a way that extending the same benefits to same-sex couples would not. the law. And that is a rational basis for
Plaintiffs are also wrong that Texas marriage law
somehow singles out gay men and lesbians for discrimination or exclusion or scorn. The purpose of Texas marriage law is
not to exclude same-sex couples but to promote responsible procreation, and there is a clear, rational basis for that. Plaintiffs also claim that it's irrational -- that Texas marriage laws are irrational because non-procreative heterosexual couples can marry but same-sex couples cannot. But the Court has long recognized that in the exercise of the police power and the Democratic process involves compromise and line drawing that often results in both over and under-inclusive laws, but that is okay, as the Court held in Vance v. Bradley. Trying to evade the rational basis for
Texas marriage law, plaintiffs assert that the law is motivated entirely by animus. That is a baseless claim.
As I said, Texas marriage law is aimed at promoting responsible procreation and child rearing by singling out naturally procreative opposite-sex couples for special protection and support. It's not aimed at singling out gay Plaintiffs offer only a At
men and lesbians for disapproval.
few snippets of commentary from legislative deliberation. most, they reflect a deliberative Democratic process, not Leticia Ornelas Rangel, CSR
43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 animus. But even if those comments did suggest animus,
plaintiffs have no basis or justification and provide no evidence that those statements -- those few statements that they cite reflect the motivations of every voter and legislator that approved the Texas marriage law. And even if
there were some evidence of animus, it would be irrelevant because under the rational basis standard, the Court must consider whether there's any conceivable basis for the law, not whether there's a conceivable impermissible basis for the law. And because there is a rational basis for the Texas
marriage law, plaintiffs animus argument must fail. Turning to plaintiffs non-recognition of out of State marriage claims, Texas law does not violate either equal protection or due process rights. As an initial
matter -- and I think as this Court originally asked, plaintiffs have not made a clear showing that they have standing to raise these claims. Standing requires, among
other things, a redressable injury caused by the defendants. But Plaintiffs have not explained what exactly the injury they have suffered beyond really a no-recognition claim. They have not explained how defendants in this case have caused their injury. And they have not shown how out of
state marriages would be recognized by defendants or could be recognized by defendants if a preliminary injunction were granted in this case. And of course without standing they
44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 harm. cannot prevail on the merits of their claims. But even if
the plaintiffs do have standing to raise this claim, they have not made a clear showing they will prevail. With respect to the Equal Protection Claim, it's well established that Texas officials cannot be compelled to recognize marriages that conflict with its public policy. Plaintiffs claim on -- plaintiffs' argument on this equal protection point really boils down to an unsupported assertion that the only reason for Texas law is animus against gay men and lesbians. They haven't attempted to
negate all the conceivable rational basis for the law, as I've already said. They also have failed to make a clear
showing that they will prevail on their due process of non-recognition claim. They cite for this claim simply an
Ohio District Court opinion and don't explain in any detail the alleged basis for the right, the contours of the right, or how the defendant caused the alleged injury. At most,
plaintiffs non-recognition claim rest on their alleged right to same-sex marriage, and it fails for the reasons I have already described. Plaintiffs have also failed to show an irreparable As the plaintiffs conceded early on, essentially this
irreparable harm claim collapses into their constitutional claim, and they haven't really shown any other independent irreparable harm. They also assert a temporary monetary Leticia Ornelas Rangel, CSR
45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 their own. THE COURT: MR. MURPHY: Right. Okay. Go ahead. loss, but it is well established that that is not considered an irreparable harm for purposes of a preliminary injunction. And plaintiffs have not also clearly shown that the balance of equities favors them. harms heavily favors the State. In fact, the balance of Same-sex couples and
defendants would face all manner of legal and practical problems from the creation and subsequent termination of same-sex marriages if a preliminary injunction or a final judgment is reversed on appeal. Officials and same-sex
couples married in the interim would face a difficult task of sorting out the consequences of the creation and subsequent termination of their marriages. The difficulties experienced
by couples and officials in Utah confirm this is a very real problem. And for this reason the Ninth Circuit stayed the
District Court's order in the Proposition Eight case pending appeal and stayed its own mandate while the case was appealed to the Supreme Court. And the Supreme Court's recent stay
order in Utah case confirms that -- the logic of maintaining the status quo while the case is resolved on the merits. THE COURT: MR. MURPHY: And the Oklahoma court. The Oklahoma court, yes, stayed on
Plaintiffs don't even dispute that the
preliminary injunction might cause numerous practical and Leticia Ornelas Rangel, CSR
46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 different. legal problems, instead they ask the Court to ignore these problems because they claim without any explanation or evidence that the problems would be no greater than those experienced by same-sex couples with the out of state marriages in Texas. That is wrong for a couple of reasons.
First, Texas can't satisfy their -- plaintiffs can't satisfy their duty to make a clear showing that -- plaintiffs can't satisfy their duty to make a clear showing that the balance of equities tips in their favor by simply saying that plaintiffs' alleged harm is no greater than the harm they're already experiencing. And the other reason is that it's fundamentally An out of state, same-sex marriage is not It's simply
terminated by the State when they move to Texas. not recognized.
Finally, plaintiffs have not clearly shown
that temporarily rewriting 150 years of Texas law would serve the public interest. The public interest is well
established -- is not served when Democratically enacted law is suspended because Democratically enacted law is itself a declaration of public interest. However, if this Court
concludes that a preliminary injunction should issue, it must stay injunction pursuant to the Supreme Court's action in the Utah case. The Supreme Court's action sent a clear signal
that the State's marriage law should remain in force through a final appeal regardless of the District Court's ruling on Leticia Ornelas Rangel, CSR
47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 counselor. MR. LANE: THE COURT: MR. LANE: THE COURT: MR. LANE: Your Honor, I'm Neel Lane. Lang? L-A-N-E of Akin Gump. Lane. Yes. Okay. the merits. Finally, if the Court were to issue a preliminary injunction in this case, it would have to be limited to the named plaintiffs in this case. Under Rule 65, D2 an
injunction would bind only the parties and their officers and agents to the Court -- and their agents. And the Court would
need to clarify the scope of the injunction in order to avoid any confusion because all other District Clerks in Texas would remain subject to the criminal penalties for violation of Texas marriage law under the Texas Family Code. Furthermore, any injunction -- any injunctive relief at the preliminary stage would apply only to the plaintiffs in this case because plaintiffs have not filed a class action and injunctive relief covers only the particular federal plaintiffs. For all those reasons, the Court should
deny the preliminary injunction motion. Thank you. THE COURT: Thank you, Mr. Murphy. And your name, again,
For the plaintiff.
48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. LANE: State's arguments. THE COURT: Let me -- while the State concluded, Go ahead. It is my privilege to respond to the
Mr. Murphy, just -- in the event the Court were to grant a preliminary injunction, what is the Plaintiff's position -well, I know what your position is going to be, but let me state it. MR. LANE: THE COURT: Our mood would be elation, Your Honor. Well, that was a comma, not a complete Your position on the
sentence or a complete question.
question of staying the order until such time as the Appeals Court gets to review the matter. MR. LANE: Your Honor, we understand why the Court In the event that an
in Oklahoma was moved to do just that.
order is entered, we would understand why the Court, Your Honor, would want to do that. appeal the stay. We would not immediately
We expect that the Court would appeal the
order of preliminary injunction. THE COURT: MR. LANE: THE COURT: You mean the State. The State would, I'm sorry. All right. Go ahead. And what about
their second point that in the event the Court were to grant the preliminary injunction, it would only apply -- if not stayed, would only apply to your particular clients? Leticia Ornelas Rangel, CSR
49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LANE: Well, I think that's actually consistent
with most other constitutional cases that have gone up to the Supreme Court. This issue will be addressed by the Fifth It
Circuit, so it will have a circuit-wide significance.
will be addressed by the Supreme Court ultimately, if not in this case, in another, so it will have national significance. THE COURT: MR. LANE: Right. So the fact that it applies and gives
rise only to the litigants before this Court is not of consequence to us. We fully expect that the right -- if this
Court recognizes there's a right to same-sex marriage, will be addressed by a Court of sufficient jurisdiction to cover every citizen in the United States. THE COURT: MR. LANE: Okay. Go ahead.
Now, Your Honor, as the State's
presentation makes clear, this is not the usual situation where the party opposing the preliminary injunction opposes or disputes the facts and asserts that the facts at trial will show otherwise than what the preliminary injunction shows. Plaintiffs have put forth evidence in support of The State hasn't contested or disputed the
their motion. evidence. standard.
This is important for the heightened scrutiny The State hasn't offered any evidence of its own.
It hasn't moved to strike the expert's affidavits by way of a Daubert motion. The State says it's not necessary -- this Leticia Ornelas Rangel, CSR
50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 evidence is not necessary for a rational basis review. That
may be true, but this evidence is certainly significant for heightened scrutiny standard. So while we disagree on many
points, we do agree that this Court need not make any factual determinations based on conflicting evidence because there is no conflicting evidence. The Court can do what it is
uniquely disposed to do, interpret the law and rule on the Plaintiff's request for relief. So what does the State argue? just now legally preclude such relief? What does it argue The State suggests
that plaintiffs seek to temporarily rewrite longstanding Texas marriage law contrary to Supreme Court precedent. quite the contrary, Your Honor. And
We ask the Court to enforce
the U.S. Constitution as it is written and as it has been interpreted by the Supreme Court. I think it's important to
remember, as it was discussed by Your Honor initially, and also by the State, the 14th amend -- the Equal Protection Clause and the Due Process Clause are part of the 14th amendment. law. It was ratified by the American people and made And a
That is a protection that was voted upon.
citizen in the United States does not have to go to the ballot box to secure equal protection of the laws. That ballot was cast in the 1860s. That right was
secured, and they do not need to go back again and again to secure it at the ballot box and case after case by the Leticia Ornelas Rangel, CSR
51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 measure. Supreme Court has held just that. We do ask this Court to rule, not as a temporary We believe it will be the law of the land in time.
We ask the Court to rule based on the recognition that the plaintiffs are likely to prevail on the merits of their claims. They have made a clear showing. And the State
concedes that if they make a clear showing, they're entitled to relief on this motion. And a clear showing merely means
that the plaintiffs show that the outcome is reasonably free from doubt that they will ultimately prevail on the merits. And by any standards, plaintiffs have met that burden. Certainly the evidence demonstrates that heightened scrutiny should apply. But under either, heightened scrutiny or
rational basis review, it's clear that the State's restriction on same-sex marriage violates the 14th amendment to the constitution. Now, let's address the State's argument that this Court may not enter relief based on the Supreme Court's summary dismissal in Baker v. Nelson. The State contends
that the summary dismissal for want of a federal question in Baker v. Nelson decided in 1972 precludes this Court from addressing the constitutionality of same-sex restrictions. We have outlined for the Court just how dramatically that the doctrinal landscape has changed since Baker with the decisions in Romer v. Adams in 1996, Lawrence v. Texas in Leticia Ornelas Rangel, CSR
52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case. MR. LANE: Your Honor, there may be a Louisiana There are other But post-Windsor 2003, and United States v. Windsor in 2013. Summary
dismissals are not binding if doctrinal developments indicate that the Supreme Court would no longer brand the question as unsubstantial. And these cases demonstrate that the Supreme
Court believes that there is a substantial federal question. THE COURT: The State of Texas -- I think
Mr. Murphy referred to or gave me a Louisiana case that refers to or cites the Nelson case. he mentioned? MR. LANE: THE COURT: MR. MURPHY: MR. LANE: THE COURT: The case he mentions in--. Merritt. Yes. The Merritt case. Right. I believe that's a Louisiana Do you recall the case
case that cites Baker and relies on it. cases that have relied on it pre-Windsor.
I'm going to suggest, and post these other decisions, those cases are not persuasive, and here is why: Even in Lawrence
where the Court struck down anti-sodomy laws, Justice Scalia in dissent stated that the Court's decision, quote: Leaves
on pretty shaky grounds State laws limiting marriage to opposite-sex couples, closed quote. would be a federal question raised. He understood there And with the Court's
53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decision in Windsor that shaky ground has crumbled completely. Roberts and Scalia -- Justice Roberts and
Justice Scalia in dissent again indicate that the decision would generate challenges to same-sex marriage bans. Indeed,
the four dissenters in Hollingsworth v. Perry indicated that they wished to address the merits of the challenge before the Court. And the rational was that important questions should
be considered and not permitted to be avoided when the State declines to appeal an adverse determination. Now the recent Supreme Court decision of Utah, Kitchen, and Oklahoma, Bishop have held that Baker v. Nelson does not preclude a challenge to the constitutionality of marriage bans. And it's important to consider also the
recent decision in Smithkline by the Ninth Circuit because there the Ninth Circuit did not say it was enough to just -that Windsor did not expressly state it was applying heightened scrutiny. The Court there actually said, I need
to look at the decision and determine what actually occurred here so I know what to do. Supreme Court is. I know what the direction for the
And what the Ninth Circuit concluded was Windsor itself But it
that Windsor did apply heightened scrutiny.
did not state what the standard it was applying was. did not apply a rational basis test.
And if you look at it,
it applied rational -- heightened scrutiny. Now, this is -- the State's argument is reminiscent Leticia Ornelas Rangel, CSR
54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the Judge that Oliver Wendell Holmes describes in the Path of Law. churn. A fellow sues another fellow for damaging a butter He goes before the Justice of the Peace. The judge
looks at -- opens his book of law and says: governing butter churns. Case dismissed.
I see no law Well, the analysis
by this Court is going to require an analysis of what actually Windsor means and what it did in that case. And
when the Ninth Circuit looked at that, it looked at a number of factors that said, in Windsor, instead of conceiving of hypothetical justifications for the law as is done in rational basis review, the Windsor case evaluated the essence of the law, its design, purpose and effect. The Court observed that Windsor required Congress to justify disparate treatment for same-sex marriages, that Windsor didn't include a strong presumption in favor of the constitutionality of the laws and the extremely differential posture toward government action that are marks of the rational basis review. And the Court said, Windsor very
clearly did not apply rational basis review, and if it didn't, then the scrutiny was heightened. heightened scrutiny. It applied
And that is the way this Court should
apply -- should look at these decisions. There is a -- once you get past this constitutional argument that somehow Baker v. Nelson precludes consideration of the Plaintiff's arguments, it's pretty slim pickings to Leticia Ornelas Rangel, CSR
55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 support the State's position, frankly. For instance, they've
argued that the State doesn't restrict -- in their briefs, that the State doesn't restrict Plaintiff's right to marry. And I will quote: Texas citizen may. They are free to marry, just as any other Of course, they can't marry someone of
the same sex, someone whom they love and wish to publicly commit to. Saying someone is free, free to marry in this It's like holding
context is of course a little perverse.
someone's head under water and saying you're free to breathe. You're just not free to breathe air. Denying the person the
right to marry the person they love is tantamount to denying them the right to marry. The State also cites tradition. longstanding definitions of traditions. Many references to They even go so far
as to cite the definition of marriage from a dictionary published in the 1700s, 20 years before this nation's birth, an age when slavery existed. execution. Theft was punishable by
Drawing and quartering were public spectacles,
and when women could not vote and often could not hold property. Needless to say, tradition is never enough to And with very few
uphold an otherwise unconstitutional law.
exceptions, every significant equal protection case decided by the Supreme Court of the United States has involved a halt to traditional practices such as, for instance, segregation of the schools. Leticia Ornelas Rangel, CSR
56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It's impossible to ignore the fact also if you're going to look at definitions, that the definition as of today, by my count in 20 jurisdictions in this country, the definition of marriage includes marriage between two people of the same sex. Your Honor. The State needs to buy a new dictionary,
In any event, these citations to tradition are
in service of a broader purpose, and that is their attempt to limit the scope of the right to marriage. They argue that
while marriage may be a fundamental right, they agree to that. Same-sex marriage is not a fundamental right, as if
marriage to a person of the same sex is wholly different in character from a marriage to a person of the opposite sex. It's not a stretch to imagine States before Loving v. Virginia arguing that marriage was a fundamental right but marriage to a person of another race was not somehow a fundamental right. It was somehow different. Because in
those circumstances the States sought to deny citizens equal protection of the laws. In both cases marriage is a public
commitment between two persons who love each other and wish to be formally, legally bound to each other before the world. That makes it -- what makes it a fundamental right is that relationship, not the color of their skin or their sexual orientation. You can't define away those characteristics in
limiting marriage. As the Court in Kitchen in the Oklahoma case said, Leticia Ornelas Rangel, CSR
57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 quote, both same sex and opposite-sex marriage are simply the manifestations of one right, the right to marry, applied to people with different sexual identities. Now considerable attention has been paid in the briefs to standard of review. And I'm not foolish enough to
think that anything we have said here or will say makes unnecessary your careful consideration of those arguments. But I do wish to make this observation as they do with their Baker v. Nelson arguments. The State argues that this Court
may not apply heightened scrutiny because Fifth Circuit and Supreme Court cases they say preclude heightened scrutiny. And we demonstrate in the briefs that the cases simply do not say this. For instance, some of the cases that they cite
find the challenge statute rule failed on a rational basis test, so they didn't have to get to a heightened scrutiny standard. You have to take those out. Others precede
Windsor, which as the Ninth Circuit has observed, applied heightened scrutiny. The Court didn't even discuss whether
there was a rational basis for DOMA much less say there was not. And the Court should look at the Smithkline decision
because that is the duty of this Court is to interpret what Windsor did, not accept the State's argument that it was silent. It actually acted. And the Court must interpret
what the Court did.
It didn't apply rational basis test.
But more important, if the Court is not persuaded Leticia Ornelas Rangel, CSR
58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that the State is right -- in other words, if the Court concludes that heightened scrutiny should apply consistent with Windsor, then the plaintiffs have offered a raft of evidence to support heightened scrutiny. The State has
neither disputed nor contested nor offered evidence of its own, and the Court has to conclude they've offered no such evidence because there is no evidence to suggest that sexual orientation is not an immutable characteristic or that homosexuals have not been the subject of discrimination. The evidence is overwhelming and points in one direction, to heightened scrutiny, that is if the Court needs to reach the heightened scrutiny test because here the statute fails the rational basis test. The State suggests
that the plaintiffs' rational basis challenge fails because plaintiffs have failed to negate every conceivable basis which might support the law. That's what they say. That's
what they said in their briefs and they said here this morning, as if there are these infinite basis floating out there that we haven't captured and defeated and refuted. Now, ordinarily, you might expect the State to cite one of these conceivable bases floating out there, but instead they actually rely on the very bases that we addressed in our moving papers. That's what they rely on Now, those bases were The State spends a
solely, procreation and child bearing. roundly rejected in Kitchen and Bishop.
59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 total of -- in its briefing, two pages, making the point that the State has an interest in procreation and child bearing, and that that's a rational basis for restriction on same-sex marriages. But as we pointed out, marriage is not and never
has been restricted to couples who can bear children, nor does denying same-sex couples the right to marriage prevent or discourage gays or lesbians from having or adopting children. Moreover, it's fundamentally irrational to suggest that an interest in child rearing can serve as a rational basis for a statute that denies children's parents the right to marry. If marriage is good for children, then it's
irrational to prohibit same-sex couples who can have children from being married. It's as if the State in making these
arguments has simply picked a common characteristic of married couples and tried to use it as their rational basis for prohibiting same-sex marriage. Now in this case they have said procreation and child rearing. And goodness knows it's always good to make
an argument where you appear to have children's interest at heart. It's empathetic. They are like puppies and trees. You can support anything I'm going to
Who could be against them, right?
if you can say it's for children's interest.
show, Your Honor, that that's not a rational basis, that this is in fact detrimental to the interest of children. Leticia Ornelas Rangel, CSR But it's
60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not enough to say there is a characteristic of those who are married and that is the basis, the rational basis for marriage. For instance -- okay. We can -- this is an We could just
exercise that I undertook thinking about this.
as well say the State has a vital interest in promoting joint -- promoting marriage because it has an interest in promoting joint checking accounts because lots of couples have joint checking accounts. checking accounts. accounts. But not all couples have joint
And some same-sex couples have checking
But because of this prevalence of joint checking
accounts, it somehow justifies the marriage or the restriction on same-sex marriage. Almost any common
characteristic of married couples can be trotted out to the safe effect. The State has an interest in home-cooked meals. The State has
The State has an interest in home ownership. an interest in taking family vacations.
Oh, well because many people who are married do these things. But not all. And many same-sex couples or So where is the
most same-sex couples do the same thing.
rational basis that you have to restrict same-sex marriage to promote that interest. At the end of the day, child bearing
and procreation do not serve as a rational basis for prohibiting couples of the same sex from marrying. that's what they decided in Kitchen. decided in Bishop. And
That's what they
At the end of the day there has to be
61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 something else that is a rational basis. And it's pretty
clear that what motivates restricting same-sex marriage is an animus or hostility or moral disapproval of gays and lesbians. law. Now, that's not a rational basis that supports the
And if we look at the law -- and Your Honor asked
earlier, what are the costs to a couple, a same-sex couple, who are not permitted to marry, whose marriage is not recognized under the laws of the State of Texas. THE COURT: My question was more precisely what are
the benefits denied or what are the roadblocks. MR. LANE: the roadblocks. economic. Okay. What are the benefits denied or
And I think you actually asked for the
Because we all know that there are stigmatic Okay. There is a stigma But
costs, so we'll set those aside.
not to having your marriage recognized by the State. let's talk about a few of those.
If you're married in the
State of Texas, we have what's called community property. Your spouse earns -- and the law has provided for many years that your spouse is entitled to half of your income. that's a protection for spouses in marriage. And
That is a
protection denied to members of same-sex marriages or those who can't marry. Those who either have married in another So let's start with that. You
state and aren't recognized.
have a very real diminution in the property that is owned by one half of the couple. Intestate survivorship. The law
62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 says that if a person dies his spouse will get his -- that there will be a portion of his intestate estate. THE COURT: MR. LANE: THE COURT: MR. LANE: His community share. His common the share. His or her community share, right? His or her community share. Now, you
can execute a will that will provide the same benefit to the marriage partner. However, if you are married and your
marriage is recognized by the State of Texas, you don't have to do that. And, frankly, as Your Honor knows, there are
many, many people in the State who don't have wills and whose spouses benefit from intestate succession. Next, parental rights. Okay. If you're -- for
instance in this case, when Cleo had a child, Nicole did not have any parental rights. She had to adopt. Now if they
were in a marriage where her rights in the marriage were recognized, she would have parental rights to the child. Health care decisions. If one of the members of a same-sex
couple are injured and not able to make their own healthcare decisions, the spouse cannot -- the partner cannot make those decisions unless they do something that people whose marriages are recognized don't have to do, execute a power of attorney or other documents. In the context of a -- in the context of a divorce, if a same-sex couple breaks up, if they were married one of Leticia Ornelas Rangel, CSR
63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the -- half of the couple might be entitled to spousal support, a real necessity in many cases for the person to live and to survive what is a breakup. But even more
importantly, perhaps, in the eyes of some, apparently in the eyes of the State I would think, child support. So, for
instance, if tomorrow, God forbid, Cleo and Nicole were to breakup and Nicole had not adopted the child, Nicole would not be obligated to provide child support. That's the harsh
reality of this restriction that is supposedly for the benefit of procreation and child rearing. out in the cold in that circumstance. Not only that, that child also would have intestate rights if the parent's marriage were recognized. And if in The child is left
this circumstance, absent a will, absent a power of attorney -- well, absent a will, if Nicole in this situation, not the birth mother, were to die, her child would not have a right to Cleo's -- or to Nicole's assets through intestate succession. The law which has for by tradition and for
hundreds of years provided for the widows and orphans of decedents shoves the children of same-sex couples out in the cold in this regard. How is that a rational basis to say
that restricting same-sex marriage promotes child rearing and procreation when you're shoving the kids out in the cold. the way, we're just talking about the economic consequences because those children also have a stigma attached to them. Leticia Ornelas Rangel, CSR By
64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We know what someone born out of wedlock is called, and that's what they are left with in the State of Texas. Moreover, in a breakup the child gets no custodial order. addition to not getting the child support, there's this negative, immediate impact on the children of a same-sex relationship when they're not recognized by marriage. There are a number of other things that we've talked about that may have economic consequence, evidentiary privileges. You know, the right for a survivor to bring a There is a real In
wrongful death action when a spouse dies. present -- immediate consequence.
If this law is not struck
down this week or next, someone in a same-sex relationship denied the opportunity to marry is going to die, and their survivors are going to bear the consequences of this State's prohibition of same-sex marriage. And there are thousands of
people in this situation, hundreds of thousands of people in this situation. And every day this prohibition is left in
place is a day when people are deprived equal protection of the law because they're treated differently from someone who is permitted to marry. THE COURT: MR. LANE: THE COURT: MR. MURPHY: Thank you, Mr. Lane. Yes, Your Honor. Mr. Murphy. Most of these points are raised in our
brief, so I won't belabor it. Leticia Ornelas Rangel, CSR
65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 necessary. MR. MURPHY: Okay. Thank you, Your Honor. THE COURT: Yes, they are, but you take as long as
Plaintiffs -- the first point is plaintiffs concede that the evidence that they presented in their preliminary injunction motion is irrelevant for purposes of rational basis review. The State agrees. The State can't be faulted
for arguing -- for arguing this case according to a level of scrutiny that appellate precedent indicates is appropriate. There's no requirements or expectation that the State needs to provide evidence, rebuttal evidence or otherwise, to support its rationally based classification. However, if the
Court decides to break new constitutional ground and conclude that sexual orientation is a suspect or a quasi-suspect classification, then the State should have the opportunity to present its case according to that standard and to present rebuttal evidence as necessary. Plaintiffs also claim that Baker can be implicitly overruled, but that is simply wrong. The Supreme Court has
warned lower courts, as I mentioned earlier, against concluding that later Supreme Court decisions implicitly overruled an earlier precedent, and they've instructed Courts to allow the Supreme Court the prerogative of overruling its own decisions. In the Hicks v. Miranda case which is the
most cited case with respect to these Baker's style Leticia Ornelas Rangel, CSR
66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decisions, the Court made clear that until such time as the Supreme Court informs lower Courts that they are not bound by cases like Baker, they must follow them. And plaintiffs have
not clearly shown that the Supreme Court has informed lower Courts that they are not bound by Baker. Furthermore, plaintiffs seem to be trying to put the burden of proof and the rational basis context on the State, but it's the Plaintiff's burden to negate every conceivable basis for rational basis for the law. They spend
a lot of time picking out conceivable or rational basis that they think are irrational and are unrelated to legitimate government interest. But they have not addressed all the
conceivable rational basis for Texas marriage law and the State is not required to proffer those. That is the
Plaintiff's responsibility, and they have not met that burden. In the end, Plaintiffs ask this Court to temporarily remove the issue of same-sex marriage from the Democratic process because they disagree with the choice that the legislative and political choices made by voters and legislators in Texas. This Court should deny that request
and deny their preliminary injunction motion. MR. LANE: Your Honor, if I -- my point would be
that the evidence we've submitted is not necessary for this Court to decide on a rational-basis test that the Chapter 32 Leticia Ornelas Rangel, CSR
67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 remark? is unconstitutional. But I didn't mean to create the The Court
impression that the evidence is wholly irrelevant.
may consider the evidence in deciding whether the plaintiffs' have met their burden of showing that there's no rational basis for Chapter 32. Having said that, again, the State has
returned to the argument that there are some unnamed arguments floating out there that we haven't addressed. I
would suggest, Your Honor, to refer to -- to cite Sherlock Holmes, that is the dog not barking at night. They haven't
come in here -- we have looked at every rational basis that has been put forward to support restrictions on same-sex marriage. If there is one out there that we have not seen or
haven't addressed and the State hasn't identified, I would suggest that it doesn't exist. And it can't be that we are
to eliminate any theoretical possibility of non-existent arguments. Your Honor, we have nothing further. THE COURT: Thank you.
Mr. Murphy, would you like to make any concluding Not necessary, but you may do so. MR. MURPHY: THE COURT: I don't think so, Your Honor. Thank you.
Then the matter is submitted for consideration. And, Mr. Chasnoff and Mr. Murphy; and Mr. Lane, Ms. Bowen, Mr. Rickhoff, thank you for appearing. Counselors have made
68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Leticia Ornelas Rangel, CSR some excellent arguments on both sides. I don't know,
Mr. Chasnoff and Mr. Lane, when is the last time you appeared here. years. I'm sure you have at some point in time in the last 20 I know the Attorney General's Office is a frequent And as usual, the And the matter
visitor and advocate in this court.
Attorney General's Office has good lawyers. is submitted. I'll review it.
A decision will be
forthcoming at some time. As we all know, regardless of what I decide, this matter is going to be appealed. And in time, either the Utah
or Oklahoma, Ohio, soon to be Virginia, and I guess Texas case, anyone of those cases or combinations thereof or all of them, in time perhaps soon or not in the too distant future, will make its way to the Supreme Court. And as my good
friend and colleague in Austin, Sam -- Judge Sam Sparks says, that ultimately a group of five people will decide this case, and I'm not one of those five. So you-all have a good day, and thank you. THE CSO: All rise.
(Adjournment.)
69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Leticia Ornelas Rangel, CSR /s/ Leticia Rangel LETICIA RANGEL United States Court Reporter 655 East Cesar E. Chavez Blvd., Room 315 San Antonio, Texas 78206 (210) 244-5039 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS ) )
I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. I further certify that the transcript
fees and format comply with those prescribed by the Court and the Judicial Conference of the United States. Date signed: February 24, 2014.

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1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CLEOPATRA DE LEON, NICOLE

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

v. RICK PERRY, ET AL,

)February 12, 2014 ) )

San Antonio, Texas 78205

For the Defendants:

Produced by mechanical stenography; computer-aided

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: P-R-O-C-E-E-D-I-N-G-S Okay. Good morning. You may be

seated. Good morning, everyone. Number 13 Civil 982.

We'll proceed to Cause

De Leon, Dimetman, Holmes, Phariss v. The Honorable

The Honorable Gerard

Your Honor, I'm Bill Deane, Assistant

And with me is Michael Murphy from the

Your Honor, Susan Bowman from the

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Mr. Rickhoff. Good morning.

MR. RICKHOFF: THE COURT: from the plaintiffs.

Good morning. Let us begin. I'll hear I believe And then if

You have a period of time.

you have been told that time, both of you have.

If you'll cover those areas and cover what you

Our responsive argument will be

I'm here to proudly represent four Two of

exemplary citizens of this state and of this country.

be grateful for their service to their country.

Today, two of them work as lawyers.

MR. CHASNOFF: THE COURT:

Okay. -- and a violation of the

MR. CHASNOFF: Constitution. THE COURT:

Leticia Ornelas Rangel, CSR

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in time. MR. CHASNOFF: The ban in the State of Texas helps

Texas to recognize their marriage.

And they moved to Texas at some point

are the roadblocks, if any? Leticia Ornelas Rangel, CSR

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in Texas. MR. CHASNOFF: Your Honor, first of all, they lived

At the time they married they went to

And there are financial burdens both

And, mind you, none of my questions are

I'm trying to gather an understanding of

And you may proceed. All right. One of the more

It's the same situation here, were

Or if she lived in anyone of the

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CHASNOFF: THE COURT: Correct.

Okay. He denied it because Article One,

MR. CHASNOFF: was on death's door. THE COURT:

As I said, we believe that it

Section 32 be held unenforceable.

of California School of law.

As the Court is aware, at the

Not a single piece of evidence.

State of Texas has not attempted to do so.

the evidence we've submitted.

substantially likely to succeed. are. THE COURT:

We strongly feel that we

On what basis do you believe you would

I know you believe that, but tell me why you believe

And no contradicting evidence.

MR. CHASNOFF: THE COURT:

-- I mean, if the Supreme Court and the

Leticia Ornelas Rangel, CSR

in our reply brief.

The cases the defendants cite are all