5:13-cv-00982 #83

Case 5:13-cv-00982-OLG Document 83 Filed 11/24/14 Page 1 of 9
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 OPPOSED MOTION TO LIFT STAY OF INJUNCTION
Preliminary Statement
This Court should immediately lift the stay it placed on the preliminary injunction it
issued after finding that Texas same-sex marriage ban was unconstitutional. On February 27,
2014, this Court held that Texas laws prohibiting same-sex couples from marrying and denying
recognition to same-sex marriages validly entered in other states (collectively, Section 32)1
Plaintiffs challenged three Texas laws that prohibit same-sex couples from marrying and declaring void
lawful out-of-state marriages between same-sex couples: (1) Family Code 2.001, originally enacted in 1973 as
Family Code 1.01; (2) Family Code 6.204, enacted in 2003; and (3) Article I, 32 of the Texas Constitution,
passed as H.J.R. 6 by the Legislature and approved by voters in November 2005. Plaintiffs refer to these laws
collectively as Section 32.
violate the Fourteenth Amendment of the United States Constitution. Consequently, the Court
entered a preliminary injunction barring the Defendants from continuing to enforce Section 32.
However, the Court stayed the preliminary injunction pending appeal because the Supreme Court
had recently stayed a similar ruling from the United States District Court for the District of Utah.
The Court should immediately lift the stay because the Supreme Courts actions
following entry of the stay no longer support its continuance. The Supreme Court denied
certiorari in appeals from the Fourth, Seventh, and Tenth Circuits decisions finding that state
laws banning same-sex marriage were unconstitutional. The denial of certiorari dissolved the
stays in place over those cases. Since then, the Supreme Court denied requests for stays (or
actually lifted stays) in other cases. While these cert denials concededly do not have legal
significance, the constitutional environment in which the Court initially entered the stay have
now changed radically and permanently. Fully two-thirds of citizens of the United States now
have an enforceable federal constitutional right to marry the person of their choice, irrespective
of gender.
More importantly, the unconstitutional state laws that restrict same-sex marriage continue
to cause direct and immediate harm to Plaintiffs during the pendency of this Courts stay. First,
Plaintiff Dimetman is pregnant with her and Plaintiff De Leons second child. If Dimetman does
not survive childbirth, De Leon will have no legal right to have access to their unborn child.
And, assuming all goes well at the babys birth, Section 32s continued enforcement will force
De Leon and Dimetman to incur the uncertainty and cost required for De Leon to adopt their
child.
Second, Plaintiffs Holmes and Phariss applied for a Texas marriage license more than 14
months ago. As a result of the stay, Texas continues to deny Holmes and Phariss their
constitutional and fundamental right to marry and continues to demean their dignity for no
legitimate reason. De Leon v. Perry, 975 F. Supp. 2d 632, 639 (W.D. Tex. 2014). If something
were to happen to either of them, they would never be able to marry, exchange vows, place rings
on each others finger, say I do, or call each other spouses in the state of their residence. Their
present relationship is governed not by matrimony, but by a web of legal rights crafted by
necessity with the assistance of attorneys they must hire and pay themselves. The same is true
for the hundreds of thousands of Texas same-sex couples who continue to suffer deprivation of
their constitutional rights every day. The Court already found the laws depriving them of these
rights are unconstitutional, and the Court should vacate its stay enjoining Defendants continued
enforcement of those laws.
ARGUMENT
I.
THE COURTS BASIS FOR ISSUING THE STAY NO LONGER EXISTS.

In the portion of the summary judgment order imposing the stay pending appeal this
Court wrote:
In accordance with the Supreme Courts issuance of a stay in Herbert v. Kitchen,
U.S. , 134 S. Ct. 893, 187 L.Ed.2d 699 (2014), and consistent with the
reasoning provided in Bishop and Bostic, this Court stays execution of this
preliminary injunction pending the final disposition of any appeal to the Fifth
Circuit Court of Appeals.
De Leon, 975 F. Supp. 2d at 666. That decision was issued nearly nine months ago, and the basis
for the stay no longer exists. In light of these changes, the stay is no longer warranted.
Most notably, on October 6, 2014, the Supreme Court denied certiorari in appeals from
the Fourth, Seventh, and Tenth Circuits, including Herbert v. Kitchen. See Herbert v. Kitchen,
135 S. Ct. 265 (2014) (Utah); Walker v. Wolf, 135 S. Ct. 316 (2014) (Wisconsin); Rainey v.
Bostic, 135 S. Ct. 286 (2014) (Virginia); Schaefer v. Bostic, 135 S. Ct. 308 (2014) (Virginia);
Smith v. Bishop, 135 S. Ct. 271 (2014) (Oklahoma); Bogan v. Baskin, 135 S. Ct. 316 (2014)
3
(Indiana). Each of the appeals arose out of appellate court decisions holding that laws
prohibiting and denying recognition of same-sex marriages are unconstitutional. Kitchen v.
Herbert, 755 F.3d 1193 (10th Cir. 2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014); Bostic v.
Schaefer, 760 F.3d 352 (4th Cir. 2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014). As a
result, gay men and lesbians in those states can marry, and those states must recognize their
lawful out-of-state marriages. Since the denial of certiorari, the Supreme Court denied stays in
cases from Alaska and Idaho. Parnell v. Hamby, No. 14A413, 2014 WL 5311581, at *1 (U.S.
Oct. 17, 2014); Otter v. Latta, 135 S. Ct. 345 (2014). Just days ago, the Supreme Court lifted a
stay that it briefly had granted from an appeal striking down Kansas laws prohibiting and
denying recognition to same-sex marriages. Moser v. Marie, No. 14A503, 2014 WL 5816952, at
*1 (U.S. Nov. 10, 2014) vacated No. 14A503, 2014 WL 5847590 (U.S. Nov. 12, 2014). And,
just last week, the Supreme Court refused to stay a decision from South Carolina finding that
states ban on same-sex marriages was unconstitutional. Wilson v. Condon, No. 14A533, 2014
WL 6474220 (U.S. Nov. 20, 2014).
Thus, the circumstances that existed when this Court stayed the preliminary injunction no
longer exist. The stay was premised on the Supreme Courts stay in Herbert, a case that the
Supreme Court since refused to review. Moreover, more recent decisions lifting and denying
stays establish that there is no need to prevent gay men and lesbians from marrying pending the
outcome of appeals from decisions striking down unconstitutional state laws. Accordingly, this
Court should follow the Supreme Courts lead and lift the stay it previously imposed.
II.
THE STAY CAUSES GRAVE HARM TO PLAINTIFFS.

This Court expressly found that the denial of the fundamental right to marry causes
irreparable harm. De Leon, 975 F. Supp. 2d at 663 64 (Federal courts at all levels have
recognized that violation of constitutional rights constitutes irreparable harm as a matter of
law. Not only have Plaintiffs suffered financial harm and expenses due to their inability to
marry (e.g., adoption expenses), but they correctly note that no amount of money can
compensate the harm for the denial of their constitutional rights.) (internal citations omitted).
Since it issued its decision, Plaintiffs continue to suffer irreparable harmonly now the potential
consequences are graver.
Plaintiffs Dimetman and De Leon are expecting their second child. Dimetman is
pregnant, and the baby is due on March 15, 2015. See Declaration of Nicole Dimetman in
Support of Motion to Advance Case for Hearing (5th Cir. Case No. 14-50196, filed Oct. 6, 2014)
(attached hereto as Exhibit A). If the State of Texas refuses to recognize Dimetman and De
Leons marriage, validly performed in Massachusetts, De Leon will not be the childs legal
parent until she formally adopts the child. See Tex. Family Code 160.703 (providing that if a
husband consents to his wifes assisted reproduction, he is the father of the child). As a result,
Dimetman and De Leon will suffer the substantial uncertainty, time, and cost required for De
Leon to legally adopt the child. More importantly, the unborn baby will be exposed to great
uncertainty and insecurity if, for some reason, Dimetman is rendered incapable of caring for the
newborn child. If Dimetman did not survive childbirth, the baby will be an orphan without a
parent directing the babys care. If Dimetman is otherwise incapacitated, De Leons right and
ability to care for the child will be far from assured, as she will not have parental rights until the
adoption is completed. Thus, De Leon may not be able to rock the baby to sleep; she may not be
able to comfort the baby when he or she is upset; or she may not be able to direct the babys
5
medical care. Adoption takes time, and if something happens to Dimetman, time will not be a
luxury that De Leon and the baby have. No married heterosexual couple has to endure such
uncertainties while awaiting the birth of their child. These harms cannot persist when the Court
has found the laws that causes them are unconstitutional.
These are legitimate concerns not just for Dimetman and De Leon, but for all same-sex
couples that are waiting to marry and have their marriages recognized. 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 an amicus brief filed with the Fifth Circuit
in the appeal from this Courts injunction, 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, De Leon v. Perry, No. 14-50196 (5th Cir. filed Sept.
15, 2014) (attached as Exhibit B). 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 the same hardships and uncertainty that Dimetman, De Leon,
and their family presently face. The harm caused to these familiesespecially their children
increases with each day the State continues to deny them the benefits and obligations of
marriage.
Defendants continued denial of the right to marry and refusal to recognize lawful out-ofstate marriages similarly harms couples without children, like Plaintiffs Holmes and Phariss.
Should Holmes or Phariss die before marrying, the surviving partner would be denied rights that
married widows receive, such as survivor benefits to social security and military pensions and
basic inheritance rights. They would never experience the joy of a weddingto have friends and
family celebrate their union and to hold themselves out as spouses. Most importantly, they
would never enjoy the validation of their relationship in the eyes of the State. Holmes and
Phariss are not unique. These are indignities and risks all of the hundreds of thousands of Texas
same-sex couples are forced to endure until they are finally allowed to marry. These risks are not
speculative and cannot be cured afterwards. Indeed, one of the plaintiffs in lawsuits in
Pennsylvania passed away before being able to marry. Kaitlynn Riely, Obituary: Fredia
Hurdle/Among plaintiffs in Pa.s gay marriage case, Pittsburgh Post-Gazette (Aug. 12, 2014).2
Holmes and Phariss applied for a marriage license on October 3, 2013more than 14 months
agoa wait no heterosexual couple must endure. These harms should not continue when the
Court has held the laws that cause them are unconstitutional.
These are real and tangible risks that same-sex couples face every day they are denied the
right to marry and to have their out-of-state marriages recognized. Section 32the laws that
create these risksis, as this Court held, unconstitutional. The Court should lift the stay
immediately and prevent Plaintiffs from needlessly suffering as a result of the unconstitutional
laws.
Conclusion
For the reasons set forth above, the Court should lift the stay of the injunction.
Available at http://www.post-gazette.com/news/obituaries/2014/08/11/Obituary-Fredia-Hurdle-Amongplaintiffs-in-Pa-s-gay-marriage-case/stories/201408110049#ixzz3A5m9N8eT
Respectfully submitted,
AKIN GUMP STRAUSS HAUER & FELD LLP
By: /s/ Daniel McNeel Lane, Jr._______
Barry A. Chasnoff (SBN 04153500)
bchasnoff@akingump.com
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
Frank Stenger-Castro (SBN 19143500)
208 Sir Arthur Ct.
fstengerc@yahoo.com
Attorneys for Plaintiffs
CERTIFICATE OF CONFERENCE
I certify that counsel for Plaintiffs conferred with counsel for Defendants. Defendant
Rickhoff is not opposed to the relief requested in this motion. Defendants Perry, Lakey, and
Abbott oppose the relief requested in this motion.
By:
/s/ Daniel McNeel Lane, Jr._______

Daniel McNeel Lane, Jr.
CERTIFICATE OF SERVICE
I certify that on November 24, 2014, I served Defendants a copy of the foregoing
document via the Courts ECF system.
By:
/s/ Daniel McNeel Lane, Jr._______

Case 5:13-cv-00982-OLG Document 83-1 Filed 11/24/14 Page 1 of 8


MARK PHARISS
Plaintiffs,
v.
Services
Defendants.
EXHIBIT A TO
Case: 14-50196
Document: 00512793166 Page: 1 Date Filed: 10/06/2014
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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
Telephone: 210.281.7000
Facsimile: 210.224.2035
bchasnoff@akingump.com
nlane@akingump.com
mpepping@akingump.com
JESSICA M. WIESEL (CA #174809)

2029 Century Park East, Suite 2400
Los Angeles, California 90067
Telephone: 310.229.1000
Facsimile: 310.229.1001
jweisel@akingump.com
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
mcooley@akingump.com
anewman@akingump.com
ATTORNEYS FOR PLAINTIFFS - APPELLEES

CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, AND MARK PHARISS.
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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 Leons marriage, validly performed in
Massachusetts, De Leon will not be recognized as the childs parent absent formal
adoption. See Tex. Family Code 160.703 (providing that if a husband consents
to his wifes 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 babys
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 childs birth. The outcome of the appeal will
determine if De Leon will be considered the childs 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-sexcouple 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 Leons 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 Leons 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.
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.
Attorney for Plaintiffs-Appellees
Cleopatra De Leon, Nicole Dimetman,
Victor Holmes, and Mark Phariss
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.
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No. 14-50196
IN THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, and
MARK PHARISS,
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,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS, SAN ANTONIO DIVISION, No.5: 13-CV-00982
DECLARATION OF NICOLE DIMETMAN

IN SUPPORT OF MOTION TO ADVANCE
CASE FOR HEARING
I, Nicole Dimetman, hereby declare the following:
1.
I am pregnant with my and my wife's second child. Our child is due
on March 15, 2015.

2.
If the State ofTexas continues to not recognize my marriage to
Cleopatra De Leon, she and I will have to proceed with the formal adoption
process, as we did with our first child. This process is expensive and uncertain. It
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also exposes our child to great uncertainty and insecurity, should something happen
to me before the adoption can be finalized.
I declare under the penalty ofpetjury that the foregoing is true and correct.
Date:
Ir I
[0 ~
}0
/4
;;;;;-
Atc7Ja~
Nicole Dimetman
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MARK PHARISS
Plaintiffs,
v.
Services
Defendants.
EXHIBIT B TO
Case: 14-50196
No. 14-50196
United States Court of Appeals

for the Fifth Circuit
CLEOPATRA DE LEON, NICOLE DIMETMAN,
HOLMES, and MARK PHARISS,
v.
RICK PERRY, in his official capacity as Governor of Texas,
GREG ABBOTT, in his official capacity as Attorney General of Texas,
and DAVID LAKEY, in his official capacity as Commissioner of the
Texas Department of State Health Services,
On Appeal from the United States District Court
Western District of Texas
No. 5:13-cv-00982-OLG
BRIEF OF AMICUS CURIAE
GARY J. GATES IN SUPPORT OF
PLAINTIFFS-APPELLEES
AND AFFIRMANCE
Brad W. Seiling
Benjamin G. Shatz
Manatt, Phelps & Phillips, LLP
11355 W. Olympic Boulevard
Los Angeles, CA 90064
(310) 312-4000
BShatz@manatt.com
Counsel for Gary J. Gates
Case: 14-50196
TABLE OF CONTENTS
I.
Introduction ...................................................................................... 3
II.
Argument.......................................................................................... 7
A.
B.
C.
Same-Sex Couples: Nearly 1.3 Million Adults in the

U.S. and 93,000 Adults in Texas Are Members of
Same-Sex Couples ................................................................... 7
1.
Same-Sex Couples Live Throughout the U.S. and

Throughout Texas .......................................................... 8
2.
Same-Sex Couples Are Diverse in Terms of Sex,

Age, Race, and Ethnicity................................................ 9
Same-Sex Couples With Children: Approximately One

in Five Same-Sex Couples in the U.S. and in Texas Are
Raising Children ................................................................... 12
1.
Same-Sex Couples with Children Live

Throughout the U.S. and Texas................................... 15
2.
Members of Same-Sex Couples with Children Are

Diverse in Terms of Race, Ethnicity, and Income ....... 15
3.
Nationally and in Texas, Same-Sex Couples Are

More Likely Than Different-Sex Couples to Be
Raising Adopted Children and Foster Children.......... 17
Same-Sex Couples in Marriages, Civil Unions, or

Registered Domestic Partnerships: As of 2010,
Approximately 114,300 Same-Sex Couples in the U.S.
Were Legally Married, and Over 108,000 Were in Civil
Unions or Registered Domestic Partnerships ...................... 19
1.
When Permitted By Law, Same-Sex Couples Are

More Likely to Marry Than to Enter into a Civil
Union or a Domestic Partnership ................................ 20
Case: 14-50196
TABLE OF CONTENTS
(continued)
D.
III.
2.
Dissolution Rates Are Slightly Lower for SameSex Couples Than for Different-Sex Couples .............. 24
3.
Marriage Between Same-Sex Couples Does Not

Reduce Different-Sex Marriage Rates or Increase
Non-Marital Birth Rates of Different-Sex Couples ..... 24
LGBT Adults: Over 8 Million American Adults and

More Than 603,000 Adults in Texas Identify as LGBT ....... 25
Conclusion ...................................................................................... 27
ii
Case: 14-50196
TABLE OF AUTHORITIES
CASES
Baskin v. Bogan,
Nos. 14-2386, 14-2387, 14-2388, 14-2526, __F.3d __,
2014 WL 4359059 (7th Cir. Sept. 4, 2014) ........................................... 2
Bostic v. Schaeffer,
Nos. 14-1167, 14-1173, __F.3d __,
2014 WL 3702493 (4th Cir. July 28, 2014) .......................................... 2
DeBoer v. Snyder,
973 F. Supp. 2d 757 (E.D. Mich. 2014) ................................................. 2
Sevcik v. Sandoval,
No. 12-17668 (9th Cir. Oct. 25, 2013) ................................................... 9
United States v. Windsor,
No. 12-307 (U.S. Mar. 1, 2013) ............................................................. 9
OTHER AUTHORITIES
About GSS, GSS GENERAL SOCIAL SURVEY,
http://www3.norc.org/GSS+Website/About+GSS/ ................................ 4
American Community Survey, U.S. CENSUS BUREAU,
http://www.census.gov/acs/ ................................................................... 3
Badgett, M.V. Lee, Will Providing Marriage Rights to SameSex Couples Undermine Heterosexual Marriage?,
1(3) SEXUALITY RESEARCH & SOCIAL POLICY 1 (2004) ......................... 25
Badgett, M. V. Lee & Jody L. Herman, The Williams
Institute, UCLA School of Law, Patterns of Relationship
Recognition by Same-Sex Couples in the United States
(Nov. 2011) .......................................................................................... 21
Decennial Census Data on Same Sex Couples,
U.S. CENSUS BUREAU,
http://www.census.gov/hhes/samesex/data/decennial.html ................ 3
Dillender, Marcus, The Death of Marriage? The Effects of
New Forms of Legal Recognition on Marriage Rates in the
United States, 51 DEMOGRAPHY 563 (2014) ........................................ 25
iii
Case: 14-50196
(continued)
Gates, Gary J. & Abigail M. Cooke,
The Williams Institute, UCLA School of Law,
Texas Census Snapshot: 2010 (2011).................................. 8, 15, 19, 20
Gates, Gary J. & Abigail M. Cooke,
The Williams Institute, UCLA School of Law,
United States Census Snapshot: 2010 (2011) ........................... 8, 19, 20
Gates, Gary J. & Frank Newport,
LGBT Percentage Highest in D.C., Lowest in
North Dakota, GALLUP (Feb. 15, 2013) ..................................... 4, 25, 26
Gates, Gary J. & Frank Newport, Special Report: 3.4% of
U.S. Adults Identify as LGBT, GALLUP (Oct. 18, 2012) ................... 4, 9
Gates, Gary J., LGBT Identity: A Demographers Perspective,
45 LOY. L.A. L. REV. 693 (2012) .......................................................... 26
Gates, Gary J., The Williams Institute, UCLA School of Law,
How Many People Are Lesbian, Gay, Bisexual, and
Transgender? (Apr. 2011) ................................................................... 25
LGBT Parenting in the United States (Feb. 2013) ..................... passim
Same-sex and Different-sex Couples in the American
Community Survey: 2005-2011 (Feb. 2013) ....................... 9, 10, 11, 12
Same-sex Couples in Texas: A Demographic Summary
(2014)........................................................................................... passim
Same-sex Couples in US Census Bureau Data: Who Gets
Counted and Why (Aug. 2010) .................................................... passim
Grant, Jaime M. et al., Injustice at Every Turn: A Report of
the National Transgender Discrimination Survey (2011), ................. 26
Howden, Lindsay M. & Julie A. Meyer, U.S. CENSUS BUREAU,
Age and Sex Composition: 2010 Census Briefs (May 2011) ......... 25, 26
iv
Case: 14-50196
(continued)
Trandafir, Mircea, The Effect of Same-Sex Marriage Laws on
Different-Sex Marriage: Evidence from the Netherlands,
51 DEMOGRAPHY 317 (2014) ................................................................ 25
Women in the Labor Force: A Databook, U.S. BUREAU OF
LABOR STATISTICS 51-52 (Dec. 2011)................................................... 17
RULES
Fed. R. App. P. 29(a).................................................................................. 2
Fed. R. App. P. 29(c)(5) .............................................................................. 2
Case: 14-50196
STATEMENT OF INTEREST
Amicus Curiae Gary J. Gates is the Williams Distinguished
Scholar at the Williams Institute on Sexual Orientation and Gender
Identity Law and Public Policy at the UCLA School of Law. He is also a
member of the Scientific Advisory Committee of the U.S. Census
Bureau and the Data Users Advisory Committee of the Bureau of Labor
Statistics.
Gates is a recognized expert on the geography and demography of
the lesbian, gay, bisexual, and transgender (LGBT) population.
He coauthored The Gay and Lesbian Atlas and conducted the first
significant research study using U.S. Census data to explore
characteristics of same-sex couples. He publishes extensively on the
demographic and economic characteristics of the LGBT population.
Many national and international media outlets routinely feature his
work. In addition, Gates regularly consults with federal and state
governments and non-governmental organizations on data collection
issues regarding LGBT populations.
As a scholar of sexual orientation and gender identity law and
public policy, Gates has a substantial interest in the issues before this
Court. Gates has conducted extensive research and authored numerous
studies
regarding
the
geographic,
demographic,
and
economic
characteristics of same-sex couples in the United States. Gates believes

that this expertise and perspective as an academic scholar may help the
1
Case: 14-50196
Court more fully appreciate the impact of Texass same-sex-marriage

prohibitions.
In DeBoer v. Snyder, Gates provided highly credible expert
testimony relied upon by the court in holding unconstitutional
Michigans prohibition on same-sex marriage. 973 F. Supp. 2d 757, 76364 (E.D. Mich. 2014). The Fourth Circuits and the Seventh Circuits
recent decisions invalidating Virginias, Indianas, and Wisconsins
same-sex-marriage prohibitions relied on Gatess work. See Baskin v.
Bogan, Nos. 14-2386, 14-2387, 14-2388, 14-2526, __F.3d __, 2014 WL
4359059, at *10-11, *17 (7th Cir. Sept. 4, 2014); Bostic v. Schaeffer,
Nos. 14-1167, 14-1173, __F.3d __, 2014 WL 3702493, at *14 (4th Cir.
July 28, 2014).
This brief is filed with consent of all parties and no motion for
leave to file is required. Fed. R. App. P. 29(a). No partys counsel
authored this brief in whole or in part. No party or partys counsel
contributed money that was intended to fund preparing or submitting
this brief, and no person other than the amicus curiae or his counsel
contributed money that was intended to fund preparing or submitting
this brief. Fed. R. App. P. 29(c)(5).
Case: 14-50196
I.
Introduction
This brief presents and analyzes available demographic and
economic data regarding same-sex couples and their children in the

United States and in Texas and regarding LGBT adults, regardless of
their relationship status, in order to assist the Court in understanding
the possible effects of rulings in this case regarding the validity of
Texass prohibitions on same-sex marriages.1
This brief uses data primarily from four sources:
2010 U.S. Census: The U.S. Census Bureau has been

collecting data regarding same-sex couples for more than two
decades, including as part of the 1990, 2000, and 2010
censuses.2
American Community Survey (ACS): The ACS is an

annual survey conducted by the U.S. Census Bureau that
provides demographic information about the U.S.
population.3
General Social Survey (GSS): The GSS is a biannual

survey of the National Opinion Research Center (NORC) at
the University of Chicago. The GSS, initiated in 1972, is the
largest project funded by the National Science Foundations
Throughout this brief, the acronym LGBT refers collectively to

lesbian, gay, bisexual, and transgender persons, and the acronym
LGB refers collectively to lesbian, gay, and bisexual persons.
1
Decennial Census Data on Same Sex Couples, U.S. CENSUS BUREAU,

http://www.census.gov/hhes/samesex/data/decennial.html
(last visited Sept. 12, 2014).
2
American Community Survey, U.S. CENSUS BUREAU,

http://www.census.gov/acs/ (last visited Sept. 12, 2014).
3
Case: 14-50196
Sociology Program and is the most frequently used source of

information in the social sciences other than the U.S.
Census.4
Gallup: The Gallup Daily Tracking Survey asks respondents

whether they identify as lesbian, gay, bisexual, or
transgender. Data in this brief draw upon responses from
more than 121,000 adults in the United States from June
through September 2012, plus 85,000 more respondents from
October through December 2012.5 These data constitute the
largest population-based survey of LGBT persons in U.S.
history.6
Based primarily on these sources, this brief describes demographic

data about four groups of people in the United States and Texas:
(A) same-sex couples; (B) same-sex couples with children; (C) same-sex
couples in marriages, civil unions, or registered domestic partnerships;
and (D) LGBT adults. The data show:
About GSS, GSS GENERAL SOCIAL SURVEY,

http://www3.norc.org/GSS+Website/About+GSS/ (last visited Sept. 12,
2014).
4
Gary J. Gates & Frank Newport, Special Report: 3.4% of U.S. Adults
Identify as LGBT, GALLUP (Oct. 18, 2012),
http://www.gallup.com/poll/158066/special-report-adults-identifylgbt.aspx (last visited Sept. 12, 2014); Gary J. Gates & Frank Newport,
LGBT Percentage Highest in D.C., Lowest in North Dakota, GALLUP
(Feb. 15, 2013), http://www.gallup.com/poll/160517/lgbt-percentagehighest-lowest-north-dakota.aspx (last visited Sept. 12, 2014).
5
Gates & Newport, LGBT Percentage Highest in D.C., Lowest in North

Dakota, supra note 5.
6
Case: 14-50196
(A) Same-Sex Couples: There are nearly 1.3 million adults who
were members of 646,464 same-sex couples identified in the 2010
Census. The Census identified same-sex couples in all 50 states and in
93% of counties in the United States. In Texas, according to the 2010
Census, there are nearly 93,000 adults in 46,401 same-sex couples, and
these couples were identified in 87% of Texass counties. The racial and
ethnic distributions of individuals in same-sex and different-sex
married couples are similar.
(B) Same-Sex Couples with Children: U.S. Census Bureau
data suggest that almost one-fifth of same-sex couples in the United
States, and more than one-fifth of same-sex couples in Texas, are
raising children under age 18. In other words, nationally, more than
125,000 same-sex-couple households collectively include nearly 220,000
children in their homes. In Texas, nearly 11,000 same-sex-couple
households in the state are raising nearly 19,000 children under age 18.
Same-sex couples raising children live throughout the United States
and Texas.
Most children being raised by same-sex parents in the United
States and in Texas are biologically related to one of their parents.
Nationally and in Texas, same-sex couples are more likely than their
different-sex married counterparts to be raising an adopted child or
foster child.
Case: 14-50196
Parenting among same-sex couples is more prevalent among

couples who are female, younger, and racial and ethnic minorities.
Nationally, the median annual household income of same-sex couples
with children under 18 in the home is more than 16% lower than for
comparable different-sex couples. In Texas, the median annual
household income of same-sex couples with children under age 18 in the
home is slightly lower than the median annual household income for
comparable different-sex married couples.
(C) Same-Sex Couples in Marriages, Civil Unions, or
Registered Domestic Partnerships: As of 2010, approximately
114,300 same-sex couples were legally married in the United States,
and more than 108,000 same-sex couples were in civil unions or
registered domestic partnerships. When offered the choice, same-sex
couples are much more likely to marry than to pursue a civil union or a
registered domestic partnership. Female same-sex couples are more
likely to marry or to enter into a civil union or registered domestic
partnership than are male same-sex couples. In states with available
data, dissolution rates for same-sex couples are slightly lower on
average
than
divorce
rates
for
different-sex
married
couples.
Furthermore, there is no reason to believe that legalizing same-sex

marriage will cause either a decline in the marriage rates of differentsex couples or an increase in non-marital births among different-sex
couples.
6
Case: 14-50196
(D) LGBT Adults: More than 8 million adults in the United

States and nearly 603,000 adults in Texas identify as LGBT.
An estimated 37% of LGBT-identifying adults in the United States have
had a child at some point during their lifetimes.
II.
Argument
A.
Same-Sex Couples: Nearly 1.3 Million Adults in the

U.S. and 93,000 Adults in Texas Are Members of SameSex Couples
Since 1990, it has been possible to identify same-sex couples using

U.S. Census data by combining responses to Census questions
regarding sex and relationship to the householder.7 In the 2010 Census,
Same-sex couples are defined as such when a householder (Person 1
on the survey form) identifies another individual aged 16 or older as
being of the same sex and as his or her husband/wife or unmarried
partner. Gary J. Gates, The Williams Institute, UCLA School of Law,
Same-sex Couples in US Census Bureau Data: Who Gets Counted and
Why, at 3 (Aug. 2010), http://williamsinstitute.law.ucla.edu/wpcontent/uploads/Gates-Who-Gets-Counted-Aug-2010.pdf (last visited
Sept. 12, 2014). A post-Census follow-up survey of same-sex couples
suggests that approximately one in seven same-sex couples who live in
the United States (14.4%) did not identify themselves in the 2010
Census. Id. Approximately 9.7% identified themselves as roommates
or non-relatives; for many, this was because they were concerned
about confidentiality, because they understood that the Census was a
federal survey and that the federal government did not recognize their
relationships and/or did not have a question about sexual orientation, or
because they understood their relationship in a way other than the
responses provided on the Census forms. Id. The remaining 4.7% were
couples in which neither partner was Person 1 (the householder) on
the Census formfor example, if a same-sex couple lived in the home of
another person who was designated as householder. Id.
7
Case: 14-50196
646,464 same-sex couples identified as such, meaning that nearly

1.3 million Americans were members of a same-sex couple.8 In the 2010
Census, 46,401 same-sex couples identified as such in Texas, meaning
that nearly 93,000 individuals in Texas are members of a same-sex
couple.9
1.
Same-Sex Couples Live Throughout the U.S. and

Throughout Texas
Same-sex couples live in all parts of the country. In the 2010

Census, same-sex couples were identified in all 50 states and in 93% of
counties in the United States.10 In the 2010 Census, same-sex couples
were identified in 87% of Texass counties.11
Gary J. Gates & Abigail M. Cooke, The Williams Institute, UCLA

School of Law, United States Census Snapshot: 2010 (2011),
http://williamsinstitute.law.ucla.edu/wpcontent/uploads/Census2010Snapshot-US-v2.pdf (last visited Sept. 12,
2014).
8
Gary J. Gates & Abigail M. Cooke, The Williams Institute, UCLA

School of Law, Texas Census Snapshot: 2010, at 1 (2011), available at
http://williamsinstitute.law.ucla.edu/wp-content/uploads/
Census2010Snapshot_Texas_v2.pdf (last visited Sept. 12, 2014).
9
Gates & Cooke, United States Census Snapshot: 2010, supra note 8,
at 1 & 5.
10
11
Gates & Cooke, Texas Census Snapshot: 2010, supra note 9, at 4-9.
8
Case: 14-50196
2.
Same-Sex Couples Are Diverse in Terms of Sex,

Age, Race, and Ethnicity
Analyses from the U.S. Census Bureaus American Community

Survey (ACS) show that same-sex couples are demographically
diverse.12 The majority of same-sex couples are female (51%), and
members of same-sex couples span all age groups.13 The average age of
individuals in same-sex couples in the United States is more than six
years younger than that of individuals in different-sex married
couples44.4 and 50.8 years old, respectively.14 This pattern is similar
in Texas, where the average age of individuals in same-sex couples is
more than five and a half years younger than that of different-sex
Compare Gary J. Gates, The Williams Institute, UCLA School of

Law, Same-sex and Different-sex Couples in the American Community
Survey: 2005-2011 (Feb. 2013), http://williamsinstitute.law.ucla.edu/wpcontent/uploads/ACS-2013.pdf (last visited Sept. 12, 2014) (providing
demographic data on same-sex couples) with Gates & Newport, Special
Report: 3.4% of U.S. Adults Identify as LGBT, supra note 5 (providing
demographic data on LGBT individuals).
12
Gates, Same-sex and Different-sex Couples in the American

Community Survey: 2005-2011, supra note 12, at 2. The versions of this
brief filed in United States v. Windsor, No. 12-307 (U.S. Mar. 1, 2013),
and Sevcik v. Sandoval, No. 12-17668 (9th Cir. Oct. 25, 2013), reported
ACS data for different-sex couples, married and unmarried. Aside from
the LGBT parenting report cited at infra note 20, this amicus brief
reports ACS data for only different-sex married couples and compares
them to same-sex couples, married and unmarried. This is a more
precise comparison in light of the issues presently before this Court.
13
14
Id.
9
Case: 14-50196
married couples43.1 and 48.7 years old, respectively.15 Table 1 shows

the percentages of adults in same-sex couples by age group. In both the
United States and Texas, the lowest percentage of same-sex couples is
in the 65-and-over group.
Table 1. Adults in same-sex couples, by age16
Age
<30
30-49
50-64
65+
Percentage of Adults
in Same-Sex Couples
U.S.
Texas
15%
15%
50%
55%
28%
26%
6%
5%
In the United States, the racial and ethnic distributions of

individuals in same-sex and different-sex married couples are similar.
In total, 24% of individuals in same-sex couples are members of racial
or ethnic minorities, compared to 26% of individuals in different-sex
married couples. The portion of African-Americans is the same in each
group (7%). Latinos and Latinas comprise 11% of those in same-sex
couples and 12% of those in different-sex married couples. Asians,
Gary J. Gates, The Williams Institute, UCLA School of Law, Samesex Couples in Texas: A Demographic Summary (2014), available at
http://williamsinstitute.law.ucla.edu/wp-content/uploads/TX-same-sexcouples-demo-sept-2014.pdf (last visited Sept. 12, 2014).
15

Community Survey: 2005-2011, supra note 12, at 8; Gates, Same-sex
Couples in Texas: A Demographic Summary, supra note 15.
16
10
Case: 14-50196
Native Hawaiians, and Pacific Islanders comprise 3% of individuals in

same-sex couples and 5% of those in different-sex married couples.17
Figure A. Race/ethnicity of adults in same-sex couples
in the U.S.18
In Texas, more than 31% of individuals in same-sex couples and

44% of individuals in different-sex married couples are members of
racial or ethnic minorities. The portion of African-Americans is 7%
among those in same-sex and different-sex married couples. The portion
of Latinos/Latinas is 22% among those in same-sex couples and 31%

Community Survey: 2005-2011, supra note 12, at 3-4. The racial and
ethnic identification terms used here (African-American, Latino/Latina,
and Asian, Native Hawaiian, and Pacific Islander) are consistent with
the terminology used in the report. Id.
17
18
Id. at 8.
11
Case: 14-50196
among those in different-sex married couples. The portion of Asian,

Native Hawaiians, and Pacific Islanders is 1% among those in same-sex
couples and 5% among those in different-sex married couples. The
portion of American Indian and Alaskan Natives is 0.6% in same-sex
couples and 0.3% in different-sex married couples.19
B.
Same-Sex Couples With Children: Approximately One

in Five Same-Sex Couples in the U.S. and in Texas Are
Raising Children
U.S. Census Bureau data suggest that almost one in five same-sex
couples in the United States (19%) are raising children under age 18.20
In other words, nationally, more than 125,000 same-sex-couple
households include nearly 220,000 children under age 18 in their
homes.21
Gates, Same-sex Couples in Texas: A Demographic Summary, supra

note 15.
19
Gary J. Gates, The Williams Institute, UCLA School of Law, LGBT

Parenting in the United States, at 1 (Feb. 2013),
http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBTParenting.pdf (last visited Sept. 12, 2014). Among different-sex couples
the proportion with children is 43.5%. Gates, Same-sex and Differentsex Couples in the American Community Survey: 2005-2011, supra
note 12, at 5.
20
21
Gates, LGBT Parenting in the United States, supra note 20, at 1.

12
Case: 14-50196
Similarly, 23% of same-sex couples in Texas are raising children

under age 18 in their homes.22 Nearly 11,000 same-sex-couple
households in the state include nearly 19,000 children.23
In the United States, most children being raised by same-sex
couples are biologically related to one of their parents (59%). However,
same-sex couples are more likely to adopt or foster children than are
different-sex couples.24
Figure B. Relationship of children under age 18 to householder
(person 1) in same-sex-couple households in the U.S.

note 15.
22
23
Id.
Gates, LGBT Parenting in the United States, supra note 20, at 3,

Fig. 4.
24
13
Case: 14-50196
Among the 125,000 same-sex couples raising children in the

United States, more than 111,000 same-sex couples are raising an
estimated 129,200 biological children, 16,400 stepchildren, and 22,500
adopted children.25 Approximately 2,600 same-sex couples are raising
3,400 foster children.26 Finally, more than a quarter of same-sex couples
raising
children
(25.6%)
are
raising
children
identified
as
grandchildren, siblings, or other children.27 Roughly 32,000 same-sex

couples are raising approximately 48,500 such children.28
In Texas, 58% of children being raised by same-sex couples are
biological children, 18% are adopted, and 4% are stepchildren. This
implies that the same-sex couples are raising an estimated 11,000
biological children, 3,400 adopted children, and 800 stepchildren.
Twenty percent of children being raised by same-sex couples in Texas,
or nearly 3,700 children, are grandchildren, siblings, or other children.29
25
Id.
26
Id.
27
Id. at 3.
Id. Note that a same-sex-couple household can include more than one
of the different types of children discussed here (e.g., biological, step,
adopted, foster, grandchildren), so the number of couples raising each
particular type of children will not add up to the total number of samesex couples raising children.
28

note 15.
29
14
Case: 14-50196
1.
Same-Sex Couples with Children Live

Throughout the U.S. and Texas
Same-sex couples raising children live throughout the United

States. Childrearing among same-sex couples in the United States is
most common in the South, Upper Midwest, and Mountain regions of
the country.30 Same-sex couples raising children also live throughout
Texas. In the 2010 Census, the majority of Texass counties included
same-sex couples with children.31
2.
Members of Same-Sex Couples with Children Are

Diverse in Terms of Race, Ethnicity, and Income
In the United States, parenting by same-sex couples is more

prevalent among racial and ethnic minorities. Forty-one percent of
women who are members of racial or ethnic minorities and are in samesex couples are raising a biological, step, or adopted child, compared to
23% of their White counterparts.32 For men, the same comparison is
20% versus 8%, respectively.33
30
Id.
31
Gates & Cooke, Texas Census Snapshot: 2010, supra note 9, at 4-9.
32
33
Id.
15
Case: 14-50196
In Texas, nearly one third (31%) of individuals in same-sex

couples who are members of racial or ethnic minorities are raising a
child under age 18, compared to 20% of their White counterparts.34
Nationally, the median annual household income of same-sex
couples with children under age 18 in the home is more than 16% lower
than the median annual household income of comparable different-sex
couples ($63,900 versus $74,000).35 In Texas, the median annual
household income of same-sex couples with children under age 18 in the
home is slightly lower than the median annual household income of
comparable different-sex married couples ($73,005 versus $73,429).36
Several factors likely contribute to the relative economic
disadvantage of same-sex couples with children in the United States.
First, research suggests that LGB parents (including, presumably, LGB
individuals in same-sex couples) are, on average, younger than their
different-sex counterparts.37 Second, same-sex couples with children are
disproportionately female, and in the United States, women, on

note 15.
34
35

note 15.
36
37

16
Case: 14-50196
average, have lower incomes than men.38 Third, same-sex couples

raising children are disproportionately members of racial and ethnic
minorities. African-Americans and Latinos or Latinas comprise 33% of
those in same-sex couples with children under age 18 in the home
compared to 27% of their counterparts in different-sex couples.39 In the
United States, African-Americans, Latinos, and Latinas have lower
incomes, on average, than White persons.40
3.
Nationally and in Texas, Same-Sex Couples Are

More Likely Than Different-Sex Couples to Be
Raising Adopted Children and Foster Children
Nationally, same-sex couples raising children are more than four

times as likely as their different-sex counterparts to be raising an
adopted child. Among couples with children under age 18 in the home,
13% of same-sex couples have an adopted child compared to just 3% of
different-sex couples. More than 16,000 same-sex couples are raising an
estimated 22,000 adopted children in the United States. Further, while
only 2% of the children of different-sex couples are adopted,
approximately 10% of the children of same-sex couples are adopted.41
Id.; Women in the Labor Force: A Databook, U.S. BUREAU OF LABOR
STATISTICS 51-52 (Dec. 2011), http://www.bls.gov/cps/wlf-databook2011.pdf (last visited Sept. 12, 2014).
38
Gates, LGBT Parenting in the United States, supra note 20, at 4,

Fig. 5.
39
40
Women in the Labor Force, supra note 38, at 51.
41

17
Case: 14-50196
Similarly, in Texas, same-sex couples raising children are seven

times more likely than their different-sex married counterparts to be
raising an adopted child. More than 18% of same-sex couples with
children in Texas include an adopted child, compared to less than 3% of
different-sex married couples with children. Further, while 18% of the
children of same-sex couples in Texas are adopted, 2% of the children of
different-sex married couples are adopted. 42
In the United States, same-sex couples are six times more likely
than their different-sex counterparts to be raising foster children.43
Among couples with children under age 18, 2% of same-sex couples are
raising a foster child, compared to just 0.3% of different-sex couples.44
Similarly, in Texas, same-sex couples raising children are sevenand-a-half times more likely than their different sex married
counterparts to be fostering a child. Nearly 2% of same-sex couples with
children in Texas include a foster child, compared to 0.2% of differentsex married couples with children. Further, while nearly 2% of the
children of same-sex couples in Texas are fostered, 0.2% of the children
of different-sex married couples are fostered.45
note 15.
42
43
44
Id.

note 15.
45
18
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C.
Same-Sex Couples in Marriages, Civil Unions, or

Registered Domestic Partnerships: As of 2010,
Approximately 114,300 Same-Sex Couples in the U.S.
Were Legally Married, and Over 108,000 Were in Civil
Unions or Registered Domestic Partnerships
Of the 646,464 same-sex couples who identified as such in Census

2010, nearly 132,000 couples identified as spouses, while nearly 515,000
identified as unmarried partners.46 In Texas, nearly 8,400 same-sex
couples identified as spouses, while more than 38,000 identified as
unmarried partners.47
For all couples, both different-sex and same-sex, Census data are
based on how individuals describe their relationship, which is not
always consistent with their legal relationship status. Accordingly,
same-sex couples who are legally married, as well as those who are not
legally married but identified themselves as spouses, can identify one
partner as a husband or wife.48 Based on a 2010 survey of same-sex
couples funded by the Census Bureau, an estimated 71% of same-sex
couples who identified a partner as husband or wife in Census 2010
were legally married, 15% were in civil unions or registered domestic
partnerships, and 14% were not in a legally recognized relationship.49
Gates & Cooke, United States Census Snapshot: 2010, supra note 8,
at 1.
46
47
Gates & Cooke, Texas Census Snapshot: 2010, supra note 9, at 1.
48
Id. at 4.
Gates, Samesex Couples in US Census Bureau Data: Who Gets

Counted and Why, supra note 7, at i-ii.
49
19
Case: 14-50196
For those who identified as unmarried partner, 79% were not in a

legally recognized relationship, 17% were in civil unions or registered
domestic partnerships, and only 4% were legally married.50
Combining these estimates with Census 2010 data suggests that
approximately 114,300 same-sex couples in the United States were
legally married in 2010, having legally married either in the United
States or in another country, and over 108,600 were in civil unions or
registered domestic partnerships.51
1.
When Permitted By Law, Same-Sex Couples Are

More Likely to Marry Than to Enter into a Civil
Union or a Domestic Partnership
Analyses of state-level administrative data provide additional

information about approximately 50,000 same-sex couples who had
Id. at 6. Put differently, 22% of legally married same-sex couples

decided to identify as unmarried partners in Census 2010. Id. at 5.
When asked why they made this choice, most said this was primarily
because they thought it was the correct answer, since either their
state or the federal government did not formally recognize their
marriage. Id.
50
Gates and Cooke report 131,729 same-sex couples who identified as

spouses and 514,735 who identified as unmarried partners. Gates &
Cooke, United States Census Snapshot: 2010, supra note 8, at 1. Gates
suggests that 71% of spousal couples are legally married (amounting to
approximately 93,700 legally married same-sex couples) along with 4%
of unmarried partner couples (approximately 20,600 married couples).
See Gates, Samesex Couples in US Census Bureau Data: Who Gets
Counted and Why, supra note 7, at 6. Combined, this implies an
estimated 114,300 legally married same-sex couples.
51
20
Case: 14-50196
legally married in the United States as of 2010 and a similar number

who had entered into other forms of legal recognition, such as civil
unions or registered domestic partnerships, by that date.52
These administrative data show that when offered the choice,
same-sex couples are much more likely to marry than to pursue a civil
union or a registered domestic partnership. On average, 30% of samesex couples married in the first year that their state allowed them to
marry,53 while only 18% entered into civil unions or broad domestic
partnerships in the first year states offered those statuses.54
Furthermore, only 8% entered into legal relationship statuses with
more limited rights and obligations,55 such as reciprocal beneficiary
M. V. Lee Badgett & Jody L. Herman, The Williams Institute, UCLA

School of Law, Patterns of Relationship Recognition by Same-Sex
Couples in the United States (Nov. 2011),
http://williamsinstitute.law.ucla.edu/wp-content/uploads/BadgettHerman-Marriage-Dissolution-Nov-2011.pdf (last visited Sept. 12,
2014).
52
Id. at 12-13 (analyzing data from the following three states that had
extended marriage to same-sex couples: Iowa, Massachusetts, and
Vermont).
53
Id. (analyzing data from the following six states that had extended
civil union or domestic partnership statuses to same-sex couples
offering all or almost all of the rights and obligations of marriage:
Connecticut, Nevada, New Hampshire, New Jersey, Oregon, and
Vermont).
54
55
Id. at 12.
21
Case: 14-50196
relationships, in the first year that their respective states offered those
statuses.56
Figure C. Percentage of same-sex couples who pursued legal
relationship recognition in the first year it was
offered, by type of recognition57
Looking past the first year that recognition was offered, almost
half of same-sex couples (47%) who live in a state that offers some form
of legal relationship recognition have entered into such a status.58 In
Id. at 11-12 (analyzing data from the following five states and the
District of Columbia that had extended a more limited set of rights to
same-sex couples through limited domestic partnerships or reciprocal or
designated beneficiary statuses: California, Hawaii, Maine, New Jersey,
and Washington).
56
57
Id.
58
Id. at 6.
22
Case: 14-50196
Massachusetts, where marriage for same-sex couples has been legal

since 2004, this is true of 68% of same-sex couples.59
Female same-sex couples are more likely to marry or to formalize
their relationships by entering into another legal status, such as a civil
union or registered domestic partnership, than are male same-sex
couples. In eight states that release marriage, civil union, or registered
domestic partnership data by gender, 62% of same-sex couples who
sought legal recognition were female couples.60
Same-sex couples who are legally married or have another legally
recognized relationship are younger than the general population of
married different-sex couples in states where same-sex couples can
marry or enter into other legally recognized relationships.61 However,
comparing the ages of same-sex and different-sex couples at the time of
marriage, newly married same-sex couples tend to be older than newly
married different-sex couples.62 This is most likely due to the fact that
when states first offer marriage to same-sex couples, many couples have
been waiting years or decades to marry.
59
Id. at 19.
Id. at 7-8 (analyzing data from the following seven states and the
District of Columbia: Connecticut, Iowa, Maine, New Hampshire, New
Jersey, Oregon, and Washington).
60
61
Id. at 8 (analyzing data from Connecticut and Washington).
62
Id. at 9 (analyzing data from Connecticut).

23
Case: 14-50196
2.
Dissolution Rates Are Slightly Lower for SameSex Couples Than for Different-Sex Couples
In states with available data, dissolution rates for same-sex

couples are slightly lower on average than divorce rates for different-sex
couples.63 The percentage of those in same-sex couples who have ended
legal relationships ranges from 0% to 1.8% annually in those states. By
comparison, 2% of married different-sex couples divorce annually.64
3.
Marriage Between Same-Sex Couples Does Not

Reduce Different-Sex Marriage Rates or Increase
Non-Marital Birth Rates of Different-Sex Couples
Furthermore, there is no reason to believe that legalizing samesex marriage will cause either a decline in the marriage rates of
different-sex couples or an increase in non-marital births among
different-sex couples. Available studies on places where same-sex
marriage has been legalized find no evidence that allowing same-sex
couples to marry reduces the rate of different-sex marriages or
increases the rate of non-marital births.65
Id. at 18-19 (analyzing data from the following ten states and the
District of Columbia: California, Colorado, Connecticut, Hawaii, Maine,
Nevada, New Hampshire, New Jersey, Vermont, and Washington).
63
64
Id. at 19.
See Marcus Dillender, The Death of Marriage? The Effects of New

Forms of Legal Recognition on Marriage Rates in the United States, 51
DEMOGRAPHY 563, 582 (2014); Mircea Trandafir, The Effect of Same-Sex
Marriage Laws on Different-Sex Marriage: Evidence from the
Netherlands, 51 DEMOGRAPHY 317, 337-38 (2014); M.V. Lee Badgett,
Will Providing Marriage Rights to Same-Sex Couples Undermine
24
65
Case: 14-50196
D.
LGBT Adults: Over 8 Million American Adults and

More Than 603,000 Adults in Texas Identify as LGBT
Marriage and relationship recognition laws affect not only samesex couples, but also LGBT individuals who are not members of samesex couples. Many such LGBT individuals may want to marry a samesex partner at some time in their lives. In a recent Gallup survey of
adults aged 18 and older in the United States, 3.5% identified
themselves as LGBT.66 Extrapolating that percentage to 2010 U.S.
Census data suggests that, out of nearly 235 million adults then in the
United States,67 more than 8 million adults were LGBT.
Heterosexual Marriage?, 1(3) SEXUALITY RESEARCH & SOCIAL POLICY 1
(2004).
Dakota, supra note 5 (noting that [t]hese results are based on
responses to the question, Do you, personally, identify as lesbian, gay,
bisexual, or transgender? included in 206,186 Gallup Daily tracking
interviews conducted between June 1 and Dec. 30, 2012). The Gallup
data did not allow for separate estimates or analyses of the lesbian, gay,
and bisexual population from the transgender population. Id. Based on
analysis of multiple studies estimating the LGBT population in the
United States, Gates suggests that approximately 0.3% of adults in the
United States identify as transgender and 3.5% as lesbian, gay, or
bisexual. Gary J. Gates, The Williams Institute, UCLA School of Law,
How Many People Are Lesbian, Gay, Bisexual, and Transgender? at 1
(Apr. 2011), http://williamsinstitute.law.ucla.edu/wp-content/uploads/
Gates-How-Many-People-LGBT-Apr-2011.pdf (last visited Sept. 12,
2014).
66
Lindsay M. Howden & Julie A. Meyer, U.S. CENSUS BUREAU, Age and
Sex Composition: 2010 Census Briefs at 2 (May 2011), available at
http://www.census.gov/prod/cen2010/briefs/c2010br-03.pdf (last visited
Sept. 12, 2014).
67
25
Case: 14-50196
In Texas, the Gallup survey showed that 3.3% of adults identified

as LGBT.68 Extrapolating that percentage to Texas data from the 2010
U.S. Census suggests that, out of the 18.3 million adults then in
Texas,69 more than 603,000 self-identified as LGBT.
The actual number of LGBT adults is likely higher because
evidence suggests that many adults who have a same-sex sexual
orientation are reluctant to self-identify as LGBT, perhaps due in part
to social stigma associated with LGBT identity.70
An estimated 37% of LGBT adults in the United States have had
at least one child over the course of their lives71 (including children who
Dakota, supra note 5.
68
Howden & Meyer, Age and Sex Composition: 2010 Census Briefs,
supra note 67, at 7.
69
Analyses of the 2008 General Social Survey suggest that about 1% of

adults in the United States (approximately 2.3 million) reported having
a same-sex sexual partner within the last year, but do not identify as
lesbian, gay or bisexual. About 1.3% of adults in the United States
(more than 3 million) report having a same-sex sexual partner within
the last five years, but do not identify as lesbian, gay, or bisexual. Gary
J. Gates, LGBT Identity: A Demographers Perspective, 45 LOY. L.A.
L. REV. 693, 704 (2012), available at http://digitalcommons.lmu.edu/
llr/vol45/iss3/2 (last visited Sept. 12, 2014).
70
The exact nature of parentage is not available, as this figure is based

on data from two different surveys and neither has great specificity
about the nature of parentage. The General Social Survey (GSS) asked
respondents, How many children have you ever had? while the
National Transgender Discrimination Survey asked a variety of
questions that indicated whether a respondent ever had children or
26
71
Case: 14-50196
have now reached adulthood). This implies that more than 3 million
LGBT Americans have had at least one child at some point during their
lifetimes.72 On average, LGBT individuals who have had children report
having 2 children, implying that there may be as many as 6 million
American children and adults who have an LGBT parent.73
III. Conclusion
In light of the foregoing and for the reasons set forth by the
parties challenging the constitutionality of Texass prohibitions on
same-sex marriages, this Court should affirm the district court
judgment.
Dated: September 15, 2014
Respectfully submitted,
Manatt, Phelps & Phillips, LLP
By: s/Benjamin G. Shatz
Counsel for Amicus Curiae
Gary J. Gates
parented any children. Gates, LGBT Parenting in the United States,

supra note 20, at 2 n.1. For more information on the GSS, see supra
note 4 and accompanying text. The National Transgender
Discrimination Survey was conducted by the National Gay and Lesbian
Task Force and the National Center for Transgender Equality and was
a web-based survey of more than 6,000 transgender individuals in the
United States. Jaime M. Grant et al., Injustice at Every Turn: A Report
of the National Transgender Discrimination Survey at 12 (2011),
available at http://www.thetaskforce.org/reports_and_research/ntds
(last visited Sept. 12, 2014).
State-specific demographic data are not available on this point.
72
73
Id.
27
Case: 14-50196
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App.
P. 32(a)(7)(B) because this brief contains 5,641 words, excluding parts
of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App.
P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a 14-point proportionally spaced
Century Schoolbook typeface using Microsoft Word 2010.
MANATT, PHELPS & PHILLIPS, LLP

By: s/Benjamin G. Shatz
Counsel for Amicus Curiae
Gary J. Gates
I hereby certify that I electronically filed the foregoing document
with the Clerk of the Court for the United States Court of Appeals for
the Fifth Circuit by using the appellate CM/ECF system. I certify that
all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
MANATT, PHELPS & PHILLIPS, LLP

By: s/Bess Hubbard
312864682.1
28


MARK PHARISS
Plaintiffs,
v.
Services
Defendants.
ORDER GRANTING PLAINTIFFS OPPOSED MOTION TO LIFT STAY OF

INJUNCTION
Before the Court is Plaintiffs Opposed Motion to Lift Stay of Injunction.
Upon
consideration of the Motion and the evidence, the Court is of the opinion that the Motion should be
granted.
Accordingly, it is ORDERED that Plaintiffs Opposed Motion to Lift Stay of Injunction is
GRANTED.
The Court VACATES the stay placed on its Order, dated February 27, 2014,
preliminarily enjoining Defendants from enforcing Article I, Section 32 of the Texas Constitution,
any related provision in the Texas Family Code, and any other laws or regulations prohibiting a
person from marrying another person of the same sex or recognizing same-sex marriage.
SIGNED this _____ day of November, 2014.
________________________________
THE HONORABLE ORLANDO L. GARCIA
UNITED STATES DISTRICT JUDGE

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Case 5:13-cv-00982-OLG Document 83 Filed 11/24/14 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

CLEOPATRA DE LEON, NICOLE

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

PLAINTIFFS OPPOSED MOTION TO LIFT STAY OF INJUNCTION

Case 5:13-cv-00982-OLG Document 83 Filed 11/24/14 Page 2 of 9

Case 5:13-cv-00982-OLG Document 83 Filed 11/24/14 Page 3 of 9

THE COURTS BASIS FOR ISSUING THE STAY NO LONGER EXISTS.

Case 5:13-cv-00982-OLG Document 83 Filed 11/24/14 Page 4 of 9

Case 5:13-cv-00982-OLG Document 83 Filed 11/24/14 Page 5 of 9

THE STAY CAUSES GRAVE HARM TO PLAINTIFFS.

Case 5:13-cv-00982-OLG Document 83 Filed 11/24/14 Page 6 of 9

Case 5:13-cv-00982-OLG Document 83 Filed 11/24/14 Page 7 of 9

Case 5:13-cv-00982-OLG Document 83 Filed 11/24/14 Page 8 of 9

Case 5:13-cv-00982-OLG Document 83 Filed 11/24/14 Page 9 of 9

/s/ Daniel McNeel Lane, Jr._______

/s/ Daniel McNeel Lane, Jr._______

Case 5:13-cv-00982-OLG Document 83-1 Filed 11/24/14 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

CLEOPATRA DE LEON, NICOLE

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

JESSICA M. WIESEL (CA #174809)

ATTORNEYS FOR PLAINTIFFS - APPELLEES

Of further concern, due to her pregnancy, Dimetman will have to stop

Dated: October 6, 2014

AKIN GUMP STRAUSS HAUER &

UNITED STATES COURT OF APPEALS

RICK PERRY, in his official capacity as Governor of the State of Texas;

DECLARATION OF NICOLE DIMETMAN

I am pregnant with my and my wife's second child. Our child is due

on March 15, 2015.

If the State ofTexas continues to not recognize my marriage to

Case 5:13-cv-00982-OLG Document 83-2 Filed 11/24/14 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT

CLEOPATRA DE LEON, NICOLE

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

United States Court of Appeals

Same-Sex Couples: Nearly 1.3 Million Adults in the

Same-Sex Couples Live Throughout the U.S. and

Same-Sex Couples Are Diverse in Terms of Sex,

Same-Sex Couples With Children: Approximately One

Same-Sex Couples with Children Live

Members of Same-Sex Couples with Children Are

Nationally and in Texas, Same-Sex Couples Are

Same-Sex Couples in Marriages, Civil Unions, or

When Permitted By Law, Same-Sex Couples Are

Marriage Between Same-Sex Couples Does Not

LGBT Adults: Over 8 Million American Adults and

characteristics of same-sex couples in the United States. Gates believes

Court more fully appreciate the impact of Texass same-sex-marriage

economic data regarding same-sex couples and their children in the

2010 U.S. Census: The U.S. Census Bureau has been

American Community Survey (ACS): The ACS is an

General Social Survey (GSS): The GSS is a biannual

Throughout this brief, the acronym LGBT refers collectively to

Decennial Census Data on Same Sex Couples, U.S. CENSUS BUREAU,

American Community Survey, U.S. CENSUS BUREAU,

Sociology Program and is the most frequently used source of

Gallup: The Gallup Daily Tracking Survey asks respondents

Based primarily on these sources, this brief describes demographic

About GSS, GSS GENERAL SOCIAL SURVEY,

Gates & Newport, LGBT Percentage Highest in D.C., Lowest in North

Parenting among same-sex couples is more prevalent among