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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.

Case 4:13-cv-03755 Document 12 Filed in TXSD on 08/28/14 Page 1 of 9

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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. [email protected]

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)[email protected]

[email protected]

ATTORNEY FOR DEFENDANTSMAYOR ANNISE PARKER AND CITY OF HOUSTON

_____ s/ Kenneth D. Upton, Jr. ______________Kenneth D. Upton, Jr.


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1

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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2

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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