Case: 14-50196

Document: 00512939747

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Date Filed: 02/19/2015

No. 14-50196

In the United States Court of Appeals for the Fifth Circuit

_____________
CLEOPATRA DE LEON; NICOLE DIMETMAN; VICTOR HOLMES; MARK
PHARISS,
Plaintiffs-Appellees,
v.
GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF
TEXAS; KEN PAXTON, IN HIS OFFICIAL CAPACITY AS TEXAS ATTORNEY
GENERAL; KIRK COLE, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF
THE DEPARTMENT OF STATE HEALTH SERVICES,
Defendants-Appellants.
_____________
On Appeal from the United States District Court
for the Western District of Texas, San Antonio Division
Case No. 5:13-cv-982
_____________

Defendants-Appellants Response in Opposition to

Plaintiffs-Appellees Motion to Lift Stay
_____________
KEN PAXTON
Attorney General of Texas

SCOTT A. KELLER
Solicitor General

CHARLES E. ROY
First Assistant Attorney General

BETH KLUSMANN
MICHAEL P. MURPHY
Assistant Solicitors General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
(512) 936-1700
Counsel for Defendants-Appellants

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The district court recognized that lifting the stay it entered pending
appeal would cause an inevitable disruption that would arise from a lack
of continuity and stability in this important area of the law and presents
a potential harm not just to Texas but to Plaintiffs themselves and to the
public interest at large. Order Denying Plaintiffs Motion to Lift the
Stay of Injunction 5, 5:13-cv-00982-OLG (W.D. Tex. Dec. 12, 2014), ECF
No. 91 (De Leon Stay Order). Nonetheless, for the second time in this
litigation, the plaintiffs now move to lift the stay.
Neither of the plaintiffs arguments justifies lifting the stay. First,
the Supreme Courts recent orders in the Alabama and Florida cases did
not lift a stay then in place and, in any event, have no legal consequence
here. Indeed, the justification for a stay is only strengthened by the
Supreme Courts recent agreement to decide whether longstanding
marriage laws like those in Texas, Louisiana, and Mississippi violate the
Constitution.
Second, the district court has already weighed the equities, and it
rightly concluded that the imminence of a resolution on the merits and
the risk of irreversible disorder from changing the status quo counsel in
favor of a stay pending appeal. The harm alleged by one particular

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plaintiffnot being recognized as a childs parent at the time of birth

is not an irreparable injury and would not be redressed by lifting the stay.
I.

THE SUPREME COURTS REFUSAL TO ENTER STAYS IN OTHER

MARRIAGE CASES HAS NO LEGAL CONSEQUENCE HERE.
The plaintiffs main basis for asking the Court to lift the stay is that

the Supreme Court declined to disrupt the rulings of lower courts by

granting stay motions in marriage cases from Alabama and Florida.
Motion to Lift Stay 1, 3-4; Strange v. Searcy, No. 14A840, 2015 WL
505563 (U.S. Feb. 9, 2015) (Alabama); Armstrong v. Brenner, 135 S. Ct.
890 (2014) (Florida). That development does not warrant any change in
course here.
The plaintiffs are asking this Court to do something that not even
the Supreme Court did: lift an existing stay approved by courts below.
The stay decision, of course, is ultimately discretionary. Hence, different
courts can permissibly reach different, reasonable results. The Supreme
Courts orders in the Alabama and Florida cases are just as consistent
with allowing circuit and district courts latitude in deciding these
discretionary issues as they are with the plaintiffs suggestion that the
Courts unexplained orders insist on a particular stay outcome.

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And the law is clear that a denial of a stay is not a decision on the
merits of the underlying legal issues. Ind. State Police Pension Trust v.
Chrysler LLC, 556 U.S. 960 (2009) (per curiam). Nor does the denial of a
stay indicate that the movant lacks an irreparable injury: A stay is not
a matter of right, even if irreparable injury might otherwise result. Nken
v. Holder, 556 U.S. 418, 433 (2009) (quotation marks omitted). The
Supreme Courts unexplained order denying some litigants a stay
pending appeal no more directs a particular outcome than its prior order
granting other litigants a stay pending appeal.

See, e.g., Herbert v.

Kitchen, 134 S. Ct. 893 (Jan. 6, 2014) (staying permanent injunction

against Utahs marriage law); Herbert v. Kitchen, 135 S. Ct. 265 (Oct. 6,
2014) (denying petition for writ of certiorari).
II.

THE JUSTIFICATION FOR A STAY IS STRONGER NOW THAN EVER.

The justification for the stay pending appeal has only strengthened

in the past several weeks. Not only is this Court primed to resolve the
constitutional questions at issue, but the Supreme Court has now agreed
to do so this Term. Lifting the stay also could allow for issuance of
government benefits and other acts that may be difficult or impossible to
reverse. This is why stays remain in place in other circuits.

Case: 14-50196

A.

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An Ultimate Resolution of This Case Is Imminent.

The plaintiffs assert that the Constitution demands a result that

has never been compelled by this Court or the Supreme Court, which will
soon decide the constitutional issues raised by the plaintiffs claims. Oral
argument in this case occurred last month. And, a few days later, the
Supreme Court granted certiorari in four cases from the Sixth Circuit
that raise the same constitutional issues presented in this case: [1] Does
the Fourteenth Amendment require a state to license marriage between
two people of the same sex? [2] Does the Fourteenth Amendment require
a state to recognize a marriage between two people of the same sex when
their marriage was lawfully licensed and performed out-of-state? See
Obergefell v. Hodges, No. 14-556, 2015 WL 213646 (U.S. Jan. 16, 2015);
Tanco v. Haslam, No. 14-562, 2015 WL 213648 (same); DeBoer v. Snyder,
No. 14-571, 2015 WL 213650 (same); Bourke v. Beshear, No. 14-574, 2015
WL 213651 (same).
As this Court recognized in Bryant, the plaintiffs claimed harm
depends on the validity of their legal theory and is thus attenuated by
the imminent consideration of their case. Campaign for S. Equal. v.
Bryant, 773 F.3d 55, 58 (5th Cir. 2014). And a stay is justified even more

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here than in Bryant, given that a final resolution is now closer. Given
that looming resolution, temporary maintenance of the status quo
balances the possibility of this harm with the need to resolve Plaintiffs[]
claims in a manner that is both expeditious and circumspect. Id.
B.

Lifting the Stay Would Create Burdensome and

Potentially Irreversible Disruption.

The problems that would come from temporarily suspending

longstanding state marriage law remain just as real today as when the
district court addressed them in December. The district court recognized
the significant legal and practical problems that would result from
suspending the States longstanding definition of marriage only
temporarily, concluding that this consideration outweighs the alleged,
temporary harm to the plaintiffs. De Leon Stay Order 5. Similarly, this
Court stayed a preliminary injunction against Mississippis marriage law
because [t]he inevitable disruption that would arise from a lack of
continuity and stability in this important area of law presents a potential
harm to the State, same-sex couples, and the public. Bryant, 773 F.3d
at 58.
Those concerns remain well-founded.

It would be difficult and

costly to undo actions taken in reliance on the preliminary injunction if

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it were allowed to take effect. If Texass marriage law were temporarily

suspended, the plaintiffs and other same-sex couples could rely on the
preliminary injunction to obtain marriage licenses or take other actions
in reliance on those licenses. Yet if the state law is ultimately upheld,
the plaintiffs, state officials, and the public at large would face significant
confusion, cost, and difficulty undoing those actions. See id. (concluding
that considerations of intra-circuit uniformity and the avoidance of
confusion, should the law be suspended but later restored after
individuals have relied on this change in law, also militate in favor of
granting the stay). That is why stays remain in place in Sixth and
Eighth Circuit cases.1
Moreover, if the Court lifted the stay here, it would create the intracircuit spilt it just avoided in Bryant, by granting a stay pending appeal.

See, e.g., Order, DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014), ECF No.
22-1 (staying pending appeal an order enjoining Michigans marriage law);
Rosenbrahn v. Daugaard, No. 4:14-CV-04081-KES, 2015 WL 144567, *11 (D.S.D.
Jan. 12, 2015) (adjudging South Dakotas marriage law unconstitutional, but staying
that judgment pending appeal [b]ecause this case presents substantial and novel
legal questions, and because there is a substantial public interest in uniformity and
stability of the law); Jernigan v. Crane, No. 4:13-CV-00410-KGB, 2014 WL 6685391,
*25 (E.D. Ark. Nov. 25, 2014) (declaring Arkansas marriage law unconstitutional but
staying injunction pending appeal); Lawson v. Kelly, No. 14-0622-CV-W-ODS, 2014
WL 5810215, *10 (W.D. Mo. Nov. 7, 2014) (similar stay pending appeal); see also
Lawson v. Kelly, No. 14-3780 (8th Cir. Jan. 22, 2015), ECF No. 4236892 (denying a
motion to vacate the district courts stay of its judgment pending appeal).

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Bryant, 773 F.3d at 58. This too weighs in favor of maintaining the status
quo for a short additional time until the plaintiffs claims can be
adjudicated with finality.
C.

The Alleged Irreparable Injuries Do Not Warrant

Lifting the Stay Because They Have Already Been
Considered, Are Speculative, or Cannot Be Redressed
by Lifting the Stay.

The plaintiffs wrongly suggest that new injuries or threats of injury

warrant lifting the stay. Motion 1-2. These arguments were rejected
before, are speculative, or are not redressable through their motion.
1.

Much of the plaintiffs argument about irreparable harm was

considered by the district court before it granted the stay. Compare, e.g.,
Motion 1-2 (arguing harm from denial of survivor rights and parental
rights), with Motion for Preliminary Injunction 11-13, 5:13-cv-00982OLG (W.D. Tex. Nov. 27, 2013), ECF No. 28 (same). The plaintiffs offer
no reasons why these same alleged injuries now justify lifting the stay.
2.

Most of the plaintiffs alleged injuries also rest on speculation

that one of the plaintiffs will die or become incapacitated while the stay
is in effect.

Motion 1-5.

But the plaintiffs do not allege any real

expectation of these tragedies befalling them in the near future. Claims

of speculative injury are not sufficient for preliminary injunctive relief:
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there must be more than an unfounded fear on the part of the applicant.
Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011); see also Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (requiring more
than a mere possibility of irreparable harm). Nor is it clear that any of
these speculative harms are irreparable. Concerns about care, custody,
and survivor benefits can often be addressed through estate planning,
advanced directives, and other private agreements.
3.

Plaintiffs De Leon and Dimetman also argue that they will

suffer irreparable injury if Dimetmans child is born and they are not
married, as De Leon will not be listed as a parent on the childs birth
certificate. Motion 6.
As an initial matter, that alleged injury is not irreparable. De Leon
concedes that she can be recognized as a parent through the adoption
process. See id. (De Leon will not be the childs legal parent until she
formally adopts the child.). And even if the adoption process is onerous,
expensive, and uncertain, id., that does not render an injury irreparable:
[m]ere injuries, however substantial, in terms of money, time and energy
necessarily expended in the absence of a stay, are not enough to make
the injury irreparable. Morgan v. Fletcher, 518 F.2d 236, 240 (5th Cir.

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1975) (quoting Va. Petroleum Jobbers Assn v. Fed. Power Commn, 259
F.2d 921, 925 (D.C. Cir. 1958)).
Additionally, even assuming that failing to be listed on a childs
birth certificate when the child is born is a concrete and irreparable
injury, it is not an injury that would be remedied by lifting the stay. The
plaintiffs realize this, as they seek relief in addition to what they obtained
below: an order from this Court establishing that Plaintiff De Leon has
full parental rights and directing [the State] to issue a birth certificate
for Dimetman and De Leons baby that lists both of them as mothers.
Motion 2-3. Yet this lawsuit did not challenge the state laws governing
birth certificates.2 The plaintiffs cannot assert this forfeited claim for the
first time on appeal, particularly without a cross-appeal seeking to
expand the scope of the preliminary injunction.3 Moreover, the plaintiffs

See, e.g., TEX. FAM. CODE 160.201(a) (The mother-child relationship is established
between a woman and a child by: (1) the woman giving birth to the child; (2) an
adjudication of the womans maternity; or (3) the adoption of the child by the
woman.); TEX. HEALTH & SAFETY CODE 192.008(a) (The supplementary birth
certificate of an adopted child must be in the names of the adoptive parents, one of
whom must be a female, named as the mother, and the other of whom must be a male,
named as the father.); TEX. HEALTH & SAFETY CODE 192.002 (directing the
Department of State Health Services to prescribe the form and contents of the birth
certificate but requiring spaces for social security numbers and signatures of the
mother and father); 25 TEX. ADMIN. CODE 181.13(a) (The State Registrar shall
determine the items of information to be contained on certificates of birth.).
3

See, e.g., El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999) (explaining
that appellee may not attack the decree with a view either to enlarging his own

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requested order directing how the State must document a childs

parentage falls well within the longstanding domestic-relations exception
to federal courts subject-matter jurisdiction, under which federal courts
will not hear child paternity actions.4
CONCLUSION
The plaintiffs motion to lift the stay of the district courts order
should be denied.

rights thereunder or of lessening the rights of his adversary (quotation marks

omitted)); Justice For All v. Faulkner, 410 F.3d 760, 772 (5th Cir. 2005) (Where party
did not cross-appeal from the district courts judgment, this Court lack[ed]
jurisdiction to expand the scope of the remedy ordered.); Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (per curiam) (refusing to allow a party
to assert a new claim for the first time on appeal); Assn of Co-op. Members, Inc. v.
Farmland Indus., Inc., 684 F.2d 1134, 1138 (5th Cir. 1982) (holding that interlocutory
appellate review is restricted to the injunctive aspects of the district courts order).
4

The domestic-relations exception precludes federal courts from hearing paternity or

child-custody claims. Congleton v. Holy Cross Child Placement Agency, Inc., 919 F.2d
1077, 1078 (5th Cir. 1990); see Rykers v. Alford, 832 F.2d 895, 900 (5th Cir. 1987)
(holding that a federal court should dismiss a case in which it must resolve custody
issues). See generally Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (noting that
the domestic relations exception . . . divests the federal courts of power to issue
divorce, alimony, and child custody decrees).

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Respectfully submitted.

KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
/s/ Scott A. Keller
SCOTT A. KELLER
Solicitor General
MICHAEL P. MURPHY
BETH KLUSMANN
Assistant Solicitors General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-2725
Fax: (512) 474-2697
Scott.Keller@texasattorneygeneral.gov
Counsel for Defendants-Appellants

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CERTIFICATE OF SERVICE
I certify that this document has been filed with the clerk of the court
and served by ECF on February 19, 2015, upon counsel for Appellees.

/s/ Scott A. Keller

SCOTT A. KELLER
Counsel for Defendants-Appellants

CERTIFICATE OF COMPLIANCE
Counsel also certifies that on February 19, 2015, the foregoing
document was transmitted to Mr. Lyle W. Cayce, Clerk of the United
States Court of Appeals for the Fifth Circuit, via the Courts CM/ECF
Document Filing System, https://ecf.ca5.uscourts.gov/.
Counsel further certifies that: (1) required privacy redactions have
been made, 5TH CIR. R. 25.2.13; (2) the electronic submission is an exact
copy of the paper document, 5TH CIR. R. 25.2.1; and (3) the document has
been scanned with the most recent version of Symantec Endpoint
Protection and is free of viruses.
/s/ Scott A. Keller
SCOTT A. KELLER
Counsel for Defendants-Appellants

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