Motion to Expedite Oral Arguments in Texas' Same-Sex Marriage Case

No. 14-50196

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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

Plaintiffs-Appellees, v.

RICK PERRY, in his official capacity as Governor of the State of Texas; GREG ABBOTT, in his official capacity as Texas Attorney General; and

DAVID LAKEY, in his official capacity as Commissioner of the Texas Department of State Health Services,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT

OF TEXAS, SAN ANTONIO DIVISION, NO. 5:13-CV-00982

MOTION TO ADVANCE CASE FOR

HEARING

AKIN GUMP STRAUSS HAUER & FELD LLP

BARRY A. CHASNOFF (TX# 4153500)DANIEL McNEEL LANE, JR. (TX #2367886) MATTHEW E. PEPPING (TX # 24065894) 300 Convent St., Suite 1600 San Antonio, Texas 78205 Telephone: 210.281.7000 Facsimile: 210.224.2035 [email protected] [email protected] [email protected]

JESSICA M. WIESEL (CA #174809)2029 Century Park East, Suite 2400 Los Angeles, California 90067 Telephone: 310.229.1000 Facsimile: 310.229.1001 [email protected] MICHAEL P. COOLEY (TX #24034388) ANDREW NEWMAN (TX #24060331) 1700 Pacific Ave, Suite 4100 Dallas, TX 75201 Telephone: 214.969.2800 Facsimile: 214. 969.4343 [email protected] [email protected]

ATTORNEYS FOR PLAINTIFFS - APPELLEES CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, AND MARK PHARISS.

Case: 14-50196 Document: 00512793166 Page: 1 Date Filed: 10/06/2014

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ARGUMENT

Pursuant to Federal Rule of Appellate Procedure 27 and 5th Circuit Rules

27.5 and 34.5, Plaintiffs – Appellees Cleopatra De Leon, Nicole Dimetman, Victor

Holmes, and Mark Phariss (“Plaintiffs”) hereby request that this Court advance this

case for hearing and schedule oral argument in the instant appeal at the earliest

possible date.

Plaintiffs Dimetman and De Leon are expecting their second child.

Dimetman is pregnant, and the baby is due on March 15, 2015. Declaration of

Nicole Dimetman (“Dimetman Decl.”) ¶ 1. What should typically be a joyous,

albeit anxious time, in any marriage will instead be fraught with uncertainty and

insecurity that no married heterosexual couple must endure. If the State of Texas

refuses to recognize Dimetman and De Leon’s marriage, validly performed in

Massachusetts, De Leon will not be recognized as the child’s parent absent formal

adoption. See Tex. Family Code § 160.703 (providing that if a “husband” consents

to his wife’s assisted reproduction, he is the father of the child). As a result,

Dimetman and De Leon will suffer the substantial uncertainty (and cost) required

for De Leon to legally adopt the child. More importantly, the child will be exposed

to great uncertainty and insecurity if, for some reason, Dimetman is rendered

incapable of caring for the newborn child. For instance, if Dimetman did not


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survive childbirth, the baby will be an orphan without a parent directing the baby’s

care.

As the Court is aware, De Leon carried, and Dimetman formally adopted,

their first child. ROA.177. They should not be forced to endure this hardship

again. The newborn child should not be exposed to the same uncertainty as his or

her older sibling. Good cause exists to expedite oral argument, and Plaintiffs seek

a resolution of this appeal before the child’s birth. The outcome of the appeal will

determine if De Leon will be considered the child’s parent as a matter of law, or if

she and Dimetman will be forced to incur the uncertainty, expense, and burden of

adopting this child, as they did with their first child.1 Dimetman Decl. ¶ 2.

Sadly, the uncertainty that Dimetman and De Leon face, and the risk their

unborn child faces, is common among same-sex parents and their children. As

Gary Gates explains in his amicus brief, “nationally, more than 125,000 same-sex-

couple households include nearly 220,000 children.” Amicus Br. of Gary J. Gates

in Support of Plaintiffs-Appellees and Affirmance, at 12. In Texas, there are nearly

19,000 children in same-sex-couple households, and “58% of children being raised

by same-sex couples are biological children.” Id. at 13 - 14. These families suffer

1 Of further concern, due to her pregnancy, Dimetman will have to stop traveling as the due date approaches. See Dimetman Decl. ¶ 1. Therefore, to ensure that she can attend any oral argument, Plaintiffs request that the Court schedule oral argument for the earliest possible calendar date, ideally in November 2014, which is before the pregnancy begins the third trimester. See id.


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the same hardships and uncertainty that Dimetman and De Leon presently face.

The harm caused to these families – especially their children – increases with each

day the State continues to deny them the benefits and obligations of marriage.

Plaintiffs recognize that this Court ordered oral argument in Robicheaux v.

Caldwell, No. 14-31037, to be heard by the same panel as this appeal. The briefing

schedule in Robicheaux establishes briefing will be complete by November 7,

2014. In light of this and the pending birth of Dimetman and De Leon’s child,

Plaintiffs request oral argument in November 2014. Plaintiffs hope that oral

argument in November will allow for a resolution of this matter before Dimetman

and De Leon’s child is born.2

Pursuant to 5th Cir. R. 27.1, counsel for Appellees has notified counsel for

Appellants of its intent to file this motion. Counsel for Appellants indicated that

their clients oppose the relief requested herein but will not file a response.

CONCLUSION

For the reasons set forth above, in order to resolve this issue at the earliest

possible time, Plaintiffs ask that the Court advance the hearing date for argument.

2 Today, the Supreme Court denied certiorari of the same-sex marriage cases pending before it, clearing the way for same-sex marriages to proceed in the Fourth, Seventh, and Tenth Circuits. See Order List (Oct. 6, 2014), available at http://www.supremecourt.gov/orders/courtorders/ 100614zor.pdf.


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Dated: October 6, 2014 AKIN GUMP STRAUSS HAUER & FELD LLP By: s/ Daniel McNeel Lane, Jr. Daniel McNeel Lane, Jr.

Attorney for Plaintiffs-Appellees Cleopatra De Leon, Nicole Dimetman, Victor Holmes, and Mark Phariss

CERTIFICATE OF SERVICE

The undersigned hereby certifies that all parties listed on this certificate of

service will receive a copy of the foregoing document filed electronically with the

United States Court of Appeals for the Fifth Circuit, on this 6th day of October,

2014, with notice of case activity to be generated and ECF notice to be sent

electronically by the Clerk of the Court. A copy will be mailed Via Certified Mail

to those who do not receive ECF notice from the Clerk of the Court.

Michael P. Murphy Beth Ellen Klusmann

Office of the Attorney General Office of the Solicitor General

P.O. Box 12548 (MC 059) Austin, TX 78711-2548

Jonathan F. Mitchell Office of the Solicitor General 209 W. 14th Street Austin, TX 78701

s/ Daniel McNeel Lane, Jr. Daniel McNeel Lane, Jr.




Documents

Motion to Expedite Oral Arguments in Texas' Same-Sex Marriage Case