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IN THE UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NOEL FREEMAN, YADIRA ESTRADA, andRONALD REESER,
Plaintiffs,versus
ANNISE D. PARKER, in her officialcapacity as Mayor of the City ofHouston, and
THE CITY OF HOUSTON, a Texasmunicipality,
Defendants.
CASE NO. 4:13-cv-03755
UNOPPOSED
Unopposed Motion and Authority to Enter Preliminary Injunctionand Stay Proceedings Pending Final Determination of the
Constitutionality of Texas Marriage Ban
Plaintiffs Noel Freeman, Yadira Estrada, and Ronald Reeser (collectively,
Plaintiffs) move the Court:
To enter a preliminary injunction preserving the status quo and enjoining the
City of Houston (the City) from discontinuing employment benefits
currently being provided to the same-sex spouses of City employees, and
To stay these proceedings pending final resolution of the constitutionality of
the Texas marriage ban. 1
1 This lawsuit challenges the constitutionality of Section 6.204 of the Texas Family Code (TexasDOMA Statute) and Article I, Section 32 of the Texas Constitution (Texas Marriage Amendment)as applied to the City of Houston, acting as a public employer, and the Mayors efforts to comply withprovisions of Article II, Section 22 of the Houston Charter (City Charter Amendment of 2001) 1 inorder to provide equal compensation and benefits to all City employees who legally have married,consistent with federal constitutional law. These are the same provisions at issue in the DeLeon v.
Perry , currently before the Fifth Circuit Court of Appeals.
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Nature and Stage of Proceedings
This Section 1983 lawsuit seeking declaratory and injunctive relief against
Defendants was filed on December 26, 2013, [Dkt. No. 01] after Plaintiffs received
notice from the City that it may have to terminate, without further notice, family
benefits for same-sex spouses of City employees who legally married in states where
such marriages are permitted. The Citys justification for threatening to terminate
spousal benefits is that provisions of the Texas Family Code and Texas Constitution
may preclude the City from recognizing marriages of same-sex couples legally
performed in other states. Plaintiffs challenge those laws as a violation of equal
protection and due process under the Fourteenth Amendment to the United States
Constitution.
The City previously advised Plaintiffs that it may be forced to withdraw
healthcare and spousal employment benefits from Plaintiffs and other City
employees with same-sex spouses, without further notice, because of the Texas
marriage ban, notwithstanding overwhelming recent federal decisional authority
across the nation that such marriage bans are unconstitutional. Indeed, on
February 26, 2014, the U.S. District Court for the Western District of Texas, San
Antonio Division, entered a preliminary injunction against enforcement of the
Texas marriage ban at issue here, finding that the plaintiffs had a likelihood of
success on the merits in proving the ban violates the Fourteenth Amendment to the
United States Constitution. That decision is currently on appeal to the Fifth Circuit.
DeLeon v. Perry , 975 F. Supp. 2d 632 (W.D. Tex. 2014), appeal docketed , No. 14-
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50196 (5th Cir. Mar. 1, 2014).
Plaintiffs and other City employees with same-sex spouses currently receive
spousal employment benefits, including healthcare coverage, for which they have
contributed to financially, and Plaintiffs and other City employees with same-sex
spouses rely upon those benefits to obtain healthcare services for ongoing medical
needs. See , Affidavits of Noel Freeman, Yadira Estrada, and Ronald Reeser,
appended as Exhibits A, B, and C, respectively. Withdrawing those benefits will
disrupt the status quo and inflict immediate and irreparable harm.
The City acknowledges that the Texas marriage ban which would force it to
withdraw benefits likely is unconstitutional and further acknowledges that
discontinuing those benefits would inflict harm on Plaintiffs and their spouses and
on other City employees with same-sex spouses and those spouses. 2
Issue Presented, Authority, and Standard of Review
Plaintiffs seek a preliminary injunction preserving the status quo pending
resolution of the constitutionality of the Texas marriage ban as it applies to
recognition of Plaintiffs out-of-state marriages and the marriages of other City
employees with same-sex spouses for purpose of City employment benefits. In the
Fifth Circuit, a preliminary injunction is appropriate where, as here, a plaintiff
establishes (1) a substantial likelihood of success on the merits, (2) a substantial
threat that the plaintiff will suffer irreparable injury without the injunction, (3) the
2 The City does not oppose the entry of a preliminary injunction to continue the current benefits untilfinal resolution of the constitutionality of the Texas marriage ban.
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threatened injury outweighs any damage that the injunction might cause the
defendant, and (4) the injunction will not disserve the public interest. Planned
Parenthood of Houston & Se. Tex. v. Sanchez , 403 F.3d 324, 329 (5th Cir. 2005);
Texans for Free Enter. V. Tex. Ethics Commn , 732 F.3d 53637 (5th Cir. 2013). See
also Garcia v. United States , 680 F.2d 29, 31 (5th Cir. 1982). Plaintiffs have
satisfied those standards here.
To obtain an injunction, Plaintiffs need only show a reasonable probability of
success, and are not required to prove their case to a certainty. In the Fifth Circuit,
courts employ[] a sliding scale involving the balancing [of] the hardships associated
with the issuance or denial of a preliminary injunction with the degree of likelihood
of success on the merits. McWaters v. Fed. Emergency Mgmt. Agency , 408 F. Supp.
2d 221, 228 (E.D. La. 2006). Although a plaintiff seeking an injunction bears the
burden to show a probability of success, the plaintiff need not prove that his is the
only correct position. Texas v. Seatrain Intl, S.A ., 518 F.2d 175, 180 (5th Cir. 1975)
([O]ne cannot obtain a preliminary injunction if he clearly will not prevail on the
merits; however, that he is unable, in an abbreviated proceeding, to prove with
certainty eventual success does not foreclose the possibility that temporary
restraint may be appropriate.). The movant seeking preliminary relief therefore
need not prove his case. Lakedreams v. Taylor , 932 F.2d 1103, 1109 n.11 (5th Cir.
1991). Plaintiffs need only show [a] reasonable probability of success, not an
overwhelming likelihood to obtain injunctive relief. Casarez v. Val Verde Cnty. , 957
F. Supp. 847, 858 (W.D. Tex. 1997). And when the other factors weigh in favor of
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an injunction, a showing of some likelihood of success on the merits will justify
temporary injunctive relief. McWaters , 408 F. Supp. 2d at 228.
Argument
A. Plaintiffs Are Likely To Succeed On The Merits Of TheirClaims That The Texas Marriage Ban Is Unconstitutional.
The Supreme Court observed in Windsor that, when government relegates
same-sex couples relationships to a second-tier status, it demeans the couple,
humiliates . . . children being raised by same-sex couples, deprives these families
of equal dignity, and degrade[s] them, while also causing countless tangible
harms, all in violation of basic due process and equal protection principles. 133 S.
Ct. at 2693-95. There is no conceivablelet alone importantgovernmental
interest served by denying employment benefits to these Plaintiffs and their
spouses or to other City employees with same-sex spouss and their spouses;
essentially pretending they are single accomplishes nothing legitimate at all. It
only harms loyal City employees who seek only fair treatment and equal
compensation with their peers.
An ever-lengthening list of federal court decisions affirm that there is no gay
exception to our United States Constitutions guarantees of liberty and equality for
all, including the freedom to celebrate love, commitment and family with the person
of ones choice in marriage. 3 This Court should do the same and grant these
3 See, e.g., Bostic v. Schaefer , 2014 WL 3702493 (4th Cir. July 28, 2014) (invalidating Virginias marriage ban); Bishop v. Smith , 2014 WL 3537847 (10th Cir. July 18, 2014)(invalidating Oklahomas marriage ban); Kitchen v. Herbert, 2014 WL 2868044 (10th Cir.
(continued)
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Plaintiffs the injunctive relief they request and stay further proceedings until the
issue is finally determined on appeala request the City does not now oppose.
B. Plaintiffs and other City employees with same-sex spouses will sufferirreparable harm if an injunction is not granted because their civilrights are being violated, and because their health coverage will lapse.
Plaintiffs establish irreparable harm because illegal discrimination is, by
itself, sufficient to show irreparable harm: When a civil rights statute is violated,
irreparable injury should be presumed from the very fact that the statute has been
violated. Greater New Orleans Fair Hous. Action Ctr. v. St. Bernard Parish , No.
06-7185, 2011 WL 838899, at *2 (E.D. La. Mar. 4, 2011) (quoting EEOC v. Cosmair ,
821 F.2d 1085, 1090 (5th Cir. 1987)). Moreover, not only does Defendants past and
promised future discrimination by itself establish irreparable harm, but Plaintiffs
and other City employees with same-sex spouses are also harmed by Defendants
threatened termination of their health insurance. These loyal City employees have
(continuation):
June 25, 2014) (invalidating Utahs marriage ban); Baskin v. Bogan, 2014 WL 2884868(S.D. Ind. June 25, 2014) (invalidating Indianas marriage ban); Geiger v. Kitzhaber, 2014WL 2054264 (D. Or. May 19, 2014) (invalidating Oregons marriage ban); Latta v. Otter,2014 WL 1909999 (D. Idaho May 13, 2014) (invalidating Idahos marriage ban); DeBoer v.Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014) (invalidating Michigans marriage ban);Tanco v. Haslam, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) (granting preliminaryinjunction requiring recognition of marriage of three same-sex plaintiff couples); De Leon ,975 F. Supp. 2d at 639-40 (granting preliminary injunction against Texas marriage ban);
Bourke v. Beshear , 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) (invalidating Kentuckysmarriage ban); Obergefell v. Wymyslo , 962 F. Supp. 2d 968 (S.D. Ohio 2013) (grantingpermanent injunction and declaratory judgment compelling Ohio to recognize valid out-of-state marriages of same-sex couples on Ohio death certificates).
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contributed to their healthcare coverage, relied on those benefits, and continue to do
so. The severe ramifications to Plaintiffs and their spouses and to other City
employees with same-sex spouses and their spouses if their insurance coverage is
allowed to lapse constitutes irreparable harm meriting preliminary relief.
C. The Injury to Plaintiffs and Their Spouses Far Outweighs AnyPurported Harm to Defendants from Continuing Healthcare Benefits.
The irreparable harm to Plaintiffs and their spouses and to other City
employees with same-sex spouses and those spouses of losing medical care far
outweighs any harm to Defendants. Subjecting these City employees to illegaldiscrimination is also a serious injury. By contrast, Defendants would only maintain
existing policies of providing the same spousal employment benefits it has provided
to other employees for years.
D. The injunction would serve the public interest by protecting Plaintiffsspouses from facing medical uncertainty due to illegal discrimination.
The injunction, in preserving the status quo, would serve the public interest
by protecting City employees from Defendants illegal discrimination and by
ensuring that the Plaintiffs spouses and the spouses of other City employees with
same-sex spouses maintain their current health coverage. It is in the public interest
to override legislation that, as found here, infringes on an individual's federal
constitutional rights. "[T]he public interest is promoted by the robust enforcement
of constitutional rights." Am. Freedom Def. Initiative v. Suburban 15 Mobilty for
Reg. Transp. , 698 F.3d 85, 896 (6th Cir. 2012). Therefore, a preliminary injunction
preventing the enforcement of an unconstitutional law serves, rather than
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contradicts, the public interest. Ingebretsen v. Jackson Pub. Sch, Dist. , 8 F.3d 274,
280 (5th Cir. 1996).
Conclusion
For the reasons stated above, the parties request the Court:
To enter a preliminary injunction preserving the status quo and enjoining the
City of Houston from discontinuing employment benefits to the same-sex
spouses of City employees, and
To stay these proceedings pending final resolution of the constitutionality of
the Texas marriage ban.
Respectfully submitted this 29th day of August, 2014.
LAMBDA LEGAL DEFENSE ANDEDUCATION FUND, INC.
By: _ s/ Kenneth D. Upton, Jr. __________Kenneth D. Upton, Jr.
Attorney in ChargeTexas State Bar No. 00797972S.D. Tex. No. 635808kupton@lambdalegal.org
3500 Oak Lawn Avenue, Suite 500Dallas, Texas 75219-6722Telephone: (214) 219-8585Facsimile: (214) 219-4455
ATTORNEYS FOR PLAINTIFFS
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CERTIFICATE OF SERVICE
On August 29, 2014, I electronically submitted the foregoing document to the
clerk of court for the U.S. District Court, Southern District of Texas, using the
electronic case filing system of the Court. I hereby certify that I have served the
following counsel of record electronically through the Courts ECF system.
David M FeldmanJudith L. RamseyCity Attorney's Office900 Bagby, 4th FloorHouston, TX 77002832.393.6412832.393.6218 (fax)david.feldman@houstontx.gov
judith.ramsey@houstontx.gov
ATTORNEY FOR DEFENDANTSMAYOR ANNISE PARKER AND CITY OF HOUSTON
_____ s/ Kenneth D. Upton, Jr. ______________Kenneth D. Upton, Jr.
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IN THE UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NOEL FREEMAN,
YADIRA ESTRADA, andRONALD REESER,
Plaintiffs,versus
ANNISE D. PARKER, in her officialcapacity as Mayor of the City ofHouston;
andTHE CITY OF HOUSTON, a Texas
municipality,
Defendants.
CASE NO. 4:13-cv-3755
UNOPPOSED
ORDER GRANTING PRELIMINARY INJUNCTION AND STAYINGPROCEEDINGS PENDING FINAL DETERMINATION OF THE
CONSTITUTIONALITY OF TEXAS MARRIAGE BAN
The Plaintiffs Unopposed Motion to Enter Preliminary Injunction and Stay
Proceedings Pending Final Determination of the Constitutionality of Texas Marriage
Ban [Dkt No. 12] is granted.
The Court enters a preliminary injunction preserving the status quo and
enjoining the City of Houston from discontinuing spousal employment benefits to
same-sex spouses of City employees until such time as final judgment is entered in
this case or it is dismissed; and
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These proceedings are stayed pending final resolution of the constitutionality
of the Texas marriage ban in DeLeon v. Perry .
It is so ordered.
Dated September ___, 2014.
_______________________________________Sim Lake
United State District Judge
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