Case 5:13-cv-00982-OLG Document 61-1 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

NOTICE OF RECENT AUTHORITY IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION Following oral argument on Plaintiffs Motion for Preliminary Injunction, the United States District Court for the Western District of Kentucky issued a decision in Bourke v. Beshear, No. 3:13-cv-750 (W.D. Ken. Feb. 12, 2014), holding that Kentuckys denial of recognition for valid same-sex marriages violates the United States Constitutions guarantee of equal protection under the law, even under the most deferential standard of review. Id. at 2. A copy of the courts opinion is attached as Exhibit A. Among other things, the court found that [a] lot has changed since the Supreme Courts decision in Baker v. Nelson, 409 U.S. 810 (1972), and the court proceeded to consider the merits of the plaintiffs constitutional challengerejecting the argument that Baker controlled the 1

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outcome of the case. With respect to the level of scrutiny the court should apply to Kentuckys same-sex marriage ban, the court found that a number of reasons suggest that gay and lesbian individuals do constitute a suspect class. Id. at 9. But, because [t]he Sixth Circuit has said that sexual orientation is not a suspect classification and thus is not subject to heightened scrutiny, the court applied the rational basis test. Id. at 8-9. As Plaintiffs explained in their Reply in Support of Motion for Preliminary Injunction, not a single Fifth Circuit or Supreme Court case has rejected the use of heightened scrutiny. (Plaintiffs Reply in Support of Preliminary Injunction at 5.) Accordingly, while the Western District of Kentucky applied the rational basis test, this Court can and should apply heightened scrutiny to Section 32. As the Defendants argue here, the defendants in Bourke argued that the laws refusal to recognize a valid same-sex marriage was rationally related to the legitimate government interest of preserving the states institution of traditional marriage. Id. at 14. However, the Western District of Kentucky rejected this argument: [t]hat Kentuckys laws are rooted in tradition, however, cannot alone justify their infringement on individual liberties. Id. at 14. Thus, the Court concluded that Kentuckys refusal to recognize valid same-sex marriages was unconstitutional1 Finally, the court also explained that the courts decision did not create a new right: The right to equal protection of the laws is not new. History has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves. If this were not so, many practices that we now abhor would still exist. Id. at 21.

The court also addressed other rational bases offered in an amicus brief and dismissed them all, noting that [t]he State, not surprisingly, declined to offer these justifications, as each has failed rational basis review in every court to consider them post-Windsor, and most courts pre-Windsor. Id.

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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

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.