    Case: 14-50196     Document: 00513102239      Page: 1   Date Filed: 07/01/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                  No. 14-50196                    United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                      July 1, 2015
CLEOPATRA DE LEON; NICOLE DIMETMAN;                                 Lyle W. Cayce
VICTOR HOLMES; MARK PHARISS,                                             Clerk

                                            Plaintiffs–Appellees,

versus

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 Texas
Department of State Health Services,

                                            Defendants–Appellants.



                 Appeal from the United States District Court
                      for the Western District of Texas




Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      The plaintiffs are two same-sex couples who seek to marry in Texas or to
have their marriage in another state recognized in Texas. They sued the state
defendants seeking (1) a declaration that Texas’s law denying same-sex coup-
les the right to marry, set forth in Article I, § 32 of the Texas Constitution and,
inter alia, Texas Family Code §§ 2.001 and 6.204, violates the Due Process and
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                                 No. 14-50196
Equal Protection Clauses of the Fourteenth Amendment and 42 U.S.C. § 1983
and also seeking (2) a permanent injunction barring enforcement of Texas’s
laws prohibiting same-sex couples from marrying. On February 26, 2014, the
district court issued a preliminary injunction prohibiting the state from enforc-
ing any laws or regulations prohibiting same-sex couples from marrying or pro-
hibiting the recognition of marriages between same-sex couples lawfully solem-
nized elsewhere. The court immediately stayed its injunction while the state
appealed.   After full briefing, including participation by numerous amici
curiae, this court heard expanded oral argument on January 9, 2015.

      While this appeal was under submission, the Supreme Court decided
Obergefell v. Hodges, No. 14-556, 2015 U.S. LEXIS 4250 (U.S. June 26, 2015).
In summary, the Court declared that
   the right to marry is a fundamental right inherent in the liberty of the
   person, and under the Due Process and Equal Protection Clauses of the
   Fourteenth Amendment couples of the same-sex may not be deprived of
   that right and that liberty. The Court now holds that same-sex couples
   may exercise the fundamental right to marry. No longer may this lib-
   erty be denied to them. Baker v. Nelson [, 409 U.S. 810 (1972),] must
   be and now is overruled, and the State laws challenged by petitioners
   in these cases are now held invalid to the extent they exclude same-sex
   couples from civil marriage on the same terms and conditions as
   opposite-sex couples.
Id. at *41–42. “It follows that the Court must also hold—and it now does hold—
that there is no lawful basis for a State to refuse to recognize a lawful same-
sex marriage performed in another State on the ground of its same-sex
character.” Id. at *50.

      Having addressed fundamental rights under the Fourteenth Amend-
ment, the Court, importantly, invoked the First Amendment, as well:
      Finally, it must be emphasized that religions, and those who adhere
   to religious doctrines, may continue to advocate with utmost, sincere
   conviction that, by divine precepts, same-sex marriage should not be

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                                       No. 14-50196
    condoned. The First Amendment ensures that religious organizations
    and persons are given proper protection as they seek to teach the prin-
    ciples that are so fulfilling and so central to their lives and faiths, and
    to their own deep aspirations to continue the family structure they have
    long revered. The same is true of those who oppose same-sex marriage
    for other reasons. In turn, those who believe allowing same-sex mar-
    riage is proper or indeed essential, whether as a matter of religious con-
    viction or secular belief, may engage those who disagree with their view
    in an open and searching debate. The Constitution, however, does not
    permit the State to bar same-sex couples from marriage on the same
    terms as accorded to couples of the opposite sex.
Id. at *48–49.

       Obergefell, in both its Fourteenth and First Amendment iterations, is the
law of the land and, consequently, the law of this circuit 1 and should not be
taken lightly by actors within the jurisdiction of this court. We express no view
on how controversies involving the intersection of these rights should be
resolved but instead leave that to the robust operation of our system of laws
and the good faith of those who are impacted by them.

       In response to Obergefell, the same day it was announced, the district
court a quo issued a one-paragraph order entitled “Order Granting Plaintiffs’
Emergency Unopposed Motion To Lift the Stay of Injunction,” stating that it
“hereby LIFTS the stay of injunction issued on February 26, 2014 . . . and
enjoins Defendants from enforcing Article I, Section 32 of the Texas Constitu-
tion, any related provisions 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.” This court sought and promptly received


       1  If it were suggested that any part of the quoted passages is obiter dictum, we need
only recall that although “[w]e are not bound by dicta, even of our own court [,] [d]icta of the
Supreme Court are, of course, another matter.” United States v. Becton, 632 F.2d 1294,
1296 n.3 (5th Cir. 1980). “[W]e give serious consideration to this recent and detailed discus-
sion of the law by a majority of the Supreme Court.” Geralds v. Entergy Servs., Inc., 709 F.3d
448, 452 (5th Cir. 2013) (Reavley, J.).
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letter advisories from plaintiffs and the state, asking their respective positions
on the proper specific disposition in light of Obergefell. Because, as both sides
now agree, the injunction appealed from is correct in light of Obergefell, the
preliminary injunction is AFFIRMED. This matter is REMANDED for entry
of judgment in favor of the plaintiffs. The court must act expeditiously on
remand and should enter final judgment on the merits (exclusive of any collat-
eral matters such as costs and attorney fees) by July 17, 2015, and earlier if
reasonably possible. 2

      The mandate shall issue forthwith.




      2   Any pending motions are denied as moot.
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