Case 5:13-cv-00982-OLG Document 62-1 Filed 02/13/14 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, and MARK PHARISS

Plaintiffs, v. RICK PERRY, in his official capacity as Governor of the State of Texas, GREG ABBOTT, in his official capacity as Texas Attorney General, GERARD RICKHOFF, in his official capacity as Bexar County Clerk, and DAVID LAKEY, in his official capacity as Commissioner of the Texas Department of State Health Services Defendants.

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

PLAINTIFFS POST-SUBMISSION RESPONSE REGARDING

MERRITT v. ATTORNEY GENERAL

During oral argument, Defendants referred the Court to Merritt v. Attorney General, No. 3:13-cv-215-BAJ-SCR, 2013 WL 6044329 (M.D. La. Nov. 14, 2013) as support for Defendants argument that Baker v. Nelson, 409 U.S. 810 (1972) precludes the Court from analyzing the merits of Plaintiffs motion (i.e., whether Section 32 is subject to heightened scrutiny and whether, even if not, it passes rational basis). This case was not previously addressed in any of the parties briefing. Merritt is not mandatory authority, and it is far from persuasive. Thus, the Court should not follow it. In Merritt, the court considered a pro-se, in forma pauperis plaintiffs lawsuit challenging Louisianas ban on same sex marriages. Id. at *1. The plaintiff was a detainee at the East 1

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Louisiana Mental Health System Forensic Unit. Id. Following a show-cause order, and no briefing, the court dismissed the plaintiffs complaint because the the Constitution does not require States to permit same-sex marriages; the unidentified state legislators named as defendants were entitled to absolute immunity from liability under 1983 for their legislative activities; and the plaintiff failed to allege any facts against the remaining defendant, the Attorney General. Id. at *2. The court did not indicate which one of these bases it rested its ruling upon. The Court should not follow Merritt. The viability of Baker v. Nelson was never briefed in Merritt. In fact, there was no briefing to the court by the plaintiff on any substantive issue. See Exhibit A, Docket Sheet Merritt v. Attorney General. As Plaintiffs have explained in their motion for preliminary injunction and their reply, Baker is no longer controlling. (See Plaintiffs Opposed Motion for Preliminary Injunction Enjoining Defendants from Enforcing Texas SameSex Marriage Ban (Docket No. 28) at 45-47; Plaintiffs Reply In Support of Motion for Preliminary Injunction (Docket No. 52) at 2-4.) Numerous other cases, including yesterdays decision from the United States District Court for the Western District of Kentucky, recognize that Baker v. Nelson is not controlling. E.g., Bourke v. Beshear, No. 3:13-cv-750 (W.D. Ken. Feb. 12, 2014); Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6697874, *7-9 (D. Utah Dec. 20, 2013); Bishop v. United States, No. 04-CV-848-TCK-TLW, 2014 WL 116013, *15-17 (D. Okla. Jan. 14, 2014). Respectfully submitted, AKIN GUMP STRAUSS HAUER & FELD LLP

By:__/s/ Daniel McNeel Lane, Jr.___________ Barry A. Chasnoff (SBN 04153500) bchasnoff@akingump.com 2

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Daniel McNeel Lane, Jr. (SBN 00784441) nlane@akingump.com Matthew E. Pepping (SBN 24065894) mpepping@akingump.com 300 Convent Street, Suite 1600 San Antonio, Texas 78205 Phone: (210) 281-7000 Fax: (210) 224-2035 Jessica Weisel (Pro Hac Vice) jweisel@akingump.com 2029 Century Park East, Suite 2400 Los Angeles, California 90067 Phone: (310) 229-1000 Fax: (310) 229-1001 Michael P. Cooley (SBN 24034388) mcooley@akingump.com 1700 Pacific Ave., Suite 4100 Dallas, Texas 75201 Phone: (214) 969-2800 Fax: (214) 969-4343

CERTIFICATE OF SERVICE I certify that, on February 13, 2014, the foregoing document was served on all counsel of record via the Courts electronic filing service. __/s/ Daniel McNeel Lane, Jr.___________ Daniel McNeel Lane, Jr.