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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

Shannon ZAHRN, Catherine Zahrn,Alexius Augustine, and AndrewSimpson, on behalf of themselves andall others similarly situated,

Plaintiffs,

v.

Rick PERRY, in his official capacity asGovernor of Texas; Greg Abbott, in hisofficial capacity as Attorney General ofTexas; and Dana DeBeauvoir, in herofficial capacity as County Clerk ofTravis County, Texas,

Defendants.

Civil Action No. 1:13-CV-00955

Plaintiffs Motion for

Class Certification

Plaintiffs Shannon Zahrn, Catherine Zahrn, Alexius Augustine, and Andrew

Simpson seek a declaratory judgment that Texas laws (a) prohibiting same-sex marriage

in Texas, and (b) refusing to give effect to same-sex marriages legally created in other

states, are unconstitutional. Plaintiffs seek this judgment on behalf of themselves and all

others similarly situated, under Rule 23 of the Federal Rules of Civil Procedure. Theproposed class is comprised of all individuals who (a) reside in Texas and want to marry

a person of the same sex in Texas, or (b) were legally married to a person of the same sex

in another state and reside in Texas. Because Rule 23s requirements are satisfied,

Plaintiffs respectfully ask the Court to certify the class.

Case 1:13-cv-00955-SS Document 23 Filed 02/28/14 Page 1 of 12

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Court must perform a rigorous analysis to determine whether Rule 23 is satisfied.

Wal-Mart Stores v. Dukes, ___ U.S. ___, 131 S. Ct. 2541, 25512552 (2011).

Rule 23(a) requires a proposed class to satisfy five criteria. The first, known as

ascertainability, is an implied prerequisite.Union Asset Management Holding A.G. v. Dell, Inc.,

669 F.3d 632, 639640 (5th Cir. 2012). The other four are explicitly stated in the Rule

and are known as numerosity, commonality, typicality, and adequacy. Fed. R. Civ.

P. 23(a)(1)(4).

In addition to satisfying these criteria, a proposed class must fit into one of three

categories outlined in Rule 23(b). Rule 23(b)(2), for example, permits a class action

where defendants have acted or refused to act on grounds generally applicable to the

class, making injunctive or declaratory relief appropriate for the entire class.

Plaintiffs proposed class satisfies Rule 23(a) and 23(b)(2); therefore it should be

certified. Notably, a similar class was recently certified in the Western District of

Virginia. Harris v. Rainey, No. 5:13cv077, 2014 WL 352188 (W.D. Va. Jan. 31, 2014).

Rule 23(a): Ascertainability

Rule 23 implicitly requires that the proposed class be ascertainablemeaning the

Court must be able to determine, by objective criteria, whether any given individual is a

member of the proposed class. Union Asset, 669 F.3d at 639640.

Here, Plaintiffs seek to represent a class comprised of two subclasses:

(1) all individuals who reside in Texas, who wish to marry someone of the same sex

in Texas; and

(2) all individuals who reside in Texas, who have been legally married in another

state to someone of the same sex.


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See Plaintiffs Complaint for Declaratory and Injunctive Relief at 100.1

Whether a person currently resides in Texas is an objective question. Whether a

person wishes to marry someone of the same sex in Texas is an objective question

(determinable either by an affirmative answer to the question or by an actual attempt to

marry). And whether a person has been legally married in another state, to a person of

the same sex, is an objective question. Thus, the proposed class is readily ascertainable,

because its membership can be determined by objective criteria. See Harris, 2014 WL

352188, at *8*9 (finding a similar class in Virginia was ascertainable).

Rule 23(a)(1): Numerosity

A proposed class must be so numerous that joinder of all members is

impracticable. Fed. R. Civ. P. 23(a)(1). There is no defined size that satisfies this

requirement, but a class of more than 100 members who are geographically dispersed

will generally suffice. Mullen v. Treasure Chest Casino LLC, 186 F.3d 620, 624 (5th Cir. 1999)

(noting authority for the proposition that a class of more than forty members raises a

presumption of numerosity); see also Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030,

1038 (5th Cir. 1981) (citing authority for the proposition that a class of 2530 may satisfy

numerosity).

Here, it is obvious that many individuals in Texas are members of the proposed

class. Plaintiffs have no burden to show what the precise number is; they need only

provide a reasonable estimate. Zeidman, 651 F.2d at 1038. According to one source, the

LGBT (lesbian, gay, bisexual, and transsexual) population in Texas is 3.3% of the total

1 The court for the Western District of Virginia, in Harris, excluded from the classthose individuals who had already filed a similar lawsuit in the Eastern District ofVirginia. 2014 WL 352188. at *1. Plaintiffs ask this Court to likewise exclude from theproposed class those who have already filed similar cases in this District (McNosky v.

Perry, No. A13-CV-0631, and DeLeon v. Perry, No. 5:13-CV-982).


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population. Gallup Special Report: New Estimates of the LGBT Population in the United States, The

Williams Institute (Feb. 2013), http://goo.gl/y6VgYI. Given Texass population of

roughly 26 million, this would mean the Texas LGBT population is roughly 858,000.

Of course, not all LGBT individuals wish to marry someone of the same sex, or are

already legally married to someone of the same sex. But according to federal census data,

there are 92,802 individuals in Texas who are part of a same-sex coupleor, in other

words, there are 46,401 same-sex couples in Texas. Texas Census Snapshot: 2010, The

Williams Institute, http://goo.gl/tzv9OM(PDF). And of these same-sex couples in

Texas, 8,397 have identified themselves as being in a spousal relationship. Id. From this,

it is reasonable to estimate that there are at least 16,794 and as many as 92,802 members

of the proposed class being harmed by Texas law.

According to another source, there are over 7,761 same-sex couples (married or

unmarried) in the metropolitan statistical areas of Texas (including Austin, San

Antonio, Houston, and Dallas) who are raising childrentogether. PolitiFact Texas (Feb.

9, 2011), http://goo.gl/40hYQN. It is reasonable to infer that couples raising children

together are likely (a) to want to get married or (b) to already be married. Thus, from

this it is reasonable to estimate that at least 7,761 couplesor 15,522 individualsare

members of the proposed class being harmed by Texas law.

At the very least, from this data it is reasonable to estimate that the proposed class

has many, many more than 100 members. And these individuals are geographically

dispersed, insofar as they reside throughout the state.See Texas Census Snapshot: 2010,

http://goo.gl/tzv9OM(PDF). Joinder of these thousands of putative class members is

therefore impracticable, and Rule 23s numerosity requirement is satisfied.

Rule 23(a): Commonality

Rule 23(a)(2) requires that there be questions of law or fact common to the class.


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Fed. R. Civ. P. 23(a)(2). To satisfy this requirement, even a single common question will

do. Dukes, 131 S. Ct. at 2556 (internal quotation omitted). But the crux of the matter is

really whether the classwide proceeding can generate common answersapt to drive the

resolution of the litigation. Id. at 2551 (emphasis in original; internal quotation omitted).

Here, the questions that determine class membership (see above) are also the only

fact questions material to Plaintiffs claims. Thus, by definition, all of the fact questions

material to Plaintiffs claims are common to the class. Moreover, Defendants do not

dispute that Shannon Zahrn and Catherine Zahrn currently reside in Texas and want to

marry each other in Texas, or that Andy Simpson and Alex Augustine currently reside in

Texas and were legally married to each other in another state. SeeJoint Scheduling

Proposal (Dkt. 22) at 2 (agreeing there are no fact issues). Presumably the State also

would not dispute these facts as they pertain to other putative class members. Thus, the

only fact questions that exist in this case are questions common to the classand the

answersare likewise common to the class, because there is no factual dispute.

Furthermore, Plaintiffs legal claims, asserted as five separate causes of action, see

Complaint at 6789, are all claims that Texas state law violates Plaintiffs rights under

the U.S. Constitution. Whether it is unconstitutionalunder any of the theories

asserted in Plaintiffs Complaintfor the State to refuse to allow Plaintiffs to get married

in Texas, or to refuse to recognize Plaintiffs out-of-state marriage, is a legal question

common to the class. And the Courts answerto these constitutional questions will

likewise be common to the class.

Thus, Rule 23s commonality requirement is satisfied.

Rule 23(a): Typicality

The named plaintiffs in a putative class action must have claims that are typical of

the class. Fed. R. Civ. P. 23(a)(3). In practice, the tests for commonality and typicality


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tend to merge. Dukes, 131 S. Ct. at 2551 n.5.But whereas commonality focuses on whether

there are common questions and answers to justify class treatment, typicality focuses on

whether the named plaintiffs are appropriate representativesof the proposed class.

Thus, typicality focuses on the similarity between the named plaintiffs legal and

remedial theories and the theories of those whom they purport to represent. Mullen, 186

F.3d at 625.

Like commonality, the test for typicality is not demanding. Id.As long as the

proposed class representatives are members of the proposed class, and their claims arise

from the same events or course of conduct as the classs claims, and they have the same

interests and the same injury as other class members, the typicality requirement is

satisfied. General Tel. Co. v. Falcon, 457 U.S. 147, 156 (1982).

Here, Shannon and Catherine are members of the proposed subclass of individuals

who want to marry someone of the same sex in Texas. Their injurybeing denied the

right to marryis the same as the subclasss injury. And their claims arise from the

States enactment and enforcement of state laws against same-sex marriagethe same

events and course of conduct underlying the subclasss claims. Thus, Shannon and

Catherine are typical representatives of subclass (a).

Similarly, Alex and Andy are members of the proposed subclass of individuals who

were legally married in another state to someone of the same sex. Their injurybeing

deprived of their legally-married statusis the same as the subclasss injury. And their

claims arise from the States enactment and enforcement of state laws against same-sex

marriagethe same events and course of conduct underlying the subclasss claims. Thus,

Alex and Andy are typical representatives of subclass (b).

Rule 23(a): Adequacy

The proposed class representatives also must show that they will fairly and


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adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). This inquiry serves

(1) to uncover conflicts of interest between the proposed class representatives and the

class they seek to represent, and (2) to determine the competence of the named plaintiffs

counsel.Amchem Prods. v. Windsor, 521 U.S. 591, 625, 626 n.20 (1997); see also Fed. R. Civ. P.

23(g). Where named plaintiffs interests are identical to the interests of the proposed

class, and their attorneys have experience litigating class actions and similar legal issues,

the adequacy requirement is satisfied. Mullen, 186 F.3d at 625626.

Here, Plaintiffs are members of the proposed class and their interests are identical

to those of the class. Plaintiffs seek declaratory and injunctive relief that will apply to the

class equallymeaning there are no conflicts of interest.

Further, Plaintiffs counsel, Jason Steed and Jody Scheske, have extensive

experience litigating class actions, as well as extensive experience litigating the

constitutional issues relevant to this case. Mr. Scheske has over 20 years experience

handling class actions and other complex litigation. Declaration of James J. Scheske

(Ex. E). And Mr. Steed worked closely with Mr. Scheske in his class-action practice from

20092012. Affidavit of Jason Steed (Ex. F).

Moreover, since 2010 Mr. Scheske and Mr. Steed have been counsel in two same-

sex divorce cases that have made their way to the Texas Supreme Court. See In the Matter

of the Marriage of J.B. and H.B., No. 11-0024; Texas v. Naylor, No. 11-0114. These divorce cases

have involved constitutional issues and arguments similar to those arising in this

marriage casemeaning Mr. Steed and Mr. Scheske are thoroughly familiar with the

legal issues relevant to the classs claims. See Ex. E, F. And Mr. Steed and Mr. Scheske are

assisted by Leigh Jorgeson and Ian Pittmantwo lawyers experienced in family law.

In sum, Plaintiffs interests are identical to the classs interests, Plaintiffs are

committed to representing and pursuing those interests, and Plaintiffs counsel are


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competent and qualified to bring this class action involving these constitutional issues.

Therefore, Rule 23s adequacy requirement is satisfied.

Rule 23(b): Class-based Discrimination

Finally, Rule 23(b)(2) provides a basis for class action where defendants have acted

or refused to act on grounds generally applicable to the class, making injunctive or

declaratory relief appropriate for the entire class. Fed. R. Civ. P. 23(b)(2). As the

Supreme Court has noted: civil rights cases against parties charged with unlawful,

class-based discrimination are prime examples of what (b)(2) is meant to capture.

Dukes, 131 S. Ct. at 2557 (noting that Rule 23(b)(2)s antecedents were a series of [court]

decisions involving challenges to racial segregation that remedied such unconstitutional

conduct by a single classwide order).

The Fifth Circuit has imposed two requirements for certifying a class under

23(b)(2): (1) the class members must have been harmed in the same way; and (2) the

injunctive relief sought must be specific. M.D. v. Perry, 675 F.3d 832, 845 (5th Cir. 2012).

Moreover, the conduct to be enjoined must be such that it can be declared unlawful as

to all of the class members or as to none of them. Id.(internal quotations omitted).

These requirements are satisfied. The class members are all harmed in the same

way, having been denied the right to marry or deprived of their lawful marital status by

Texas law. They seek specific relief, asking the Court to declare these Texas laws

unconstitutional and to enjoin Defendants from enforcing them. And this will provide

relief to all class membersor to none of them.

This notion of providing constitutional protection to allclass membersor to none

of themis important, given the prominent role of county clerks in issuing marriage

licenses. If class treatment is denied in this case, but Plaintiffs win on the merits as

individuals, clerks in other counties plausibly might continue to refuse to issue marriage


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licenses to same-sex couplesarguing that the Courts injunction does not reach them.

This is similar to what some county clerks did in Utah, after a district court ruled

that Utahs laws against same-sex marriage were unconstitutional. See Utah County refuses

to issue same-sex marriage licenses, Salt Lake Tribune (Dec. 23, 2013), http://goo.gl/tSNXyk.

And it is similar to what happened in the racial segregation cases that became the basis

for adopting Rule 23(b)(2) in the first place. See Dukes, 131 S. Ct. at 2557; Amendments to R.

of Civ. P., Advisory Committees Note, 39 F.R.D. 69, 102 (1966) (citing, e.g., Potts v. Flax, 313

F.2d 284 (5th Cir. 1963)). In Potts, a district court issued an order categorically

abolishing segregationist policies in Fort Worth ISD, but some school officials ignored

the order and, on appeal, contended that, even if the courts order could enforce rights for

the named plaintiffs, it could not extend[] such rights to all other persons similarly

situated. 313 F.2d at 287288.

Rule 23(b)(2) was adopted to prevent this sort of thing, and to enable the Court to

enforce civil and constitutional rights for an entire identified class. And this case clearly

fits the criteria of Rule 23(b)(2).

Conclusion

Given the straightforward basis for certification in this case, no hearing is necessary

and Plaintiffs ask the Court to certify the proposed class as soon as practicable. See

generally Fed. R. Civ. P. 23 (no hearing required); see Fed. R. Civ. P. 23(c)(1)(A) (court

must determine class certification at an early practicable time); see alsoHarris, 2014

WL 352188 (certifying a similar class). Plaintiffs ask the Court to issue an order

(1) certifying the proposed class, (2) defining the class claims as those alleged in

Plaintiffs Complaint, and (3) appointing Plaintiffs counsel as class counsel. Cf.Fed. R.

Civ. P. 23(c).


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Respectfully submitted,

/s/ Jason P. SteedJason P. Steed, SBN 24070671

Bell Nunnally & Martin LLP3232 McKinney Ave., Suite 1400Dallas, TX 75204Phone: (214) 740-1411Fax: (214) [email protected]

James J. Scheske, SBN 17745443

James J. Scheske PLLC5501-A Balcones #109Austin, TX 78731Phone: (512) 371-1790Fax: (512) [email protected]

S. Leigh Jorgeson, SBN 24070026 (pro hac)Ian Pittman, SBN 24064131 (pro hac)Jorgeson Pittman LLP

4505 Spicewood Springs Rd., Suite 335Austin, Texas 78759Phone: (512) 320-0999Fax: (512) [email protected]

Attorneys for PlaintiffsShannon Zahrn, Catherine Zahrn,Alexius Augustine, and Andrew Simpson


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Certificate of Service

I certify that Plaintiffs Motion for Class Certification was electronically filed on

the CM/ECF system on February 28, 2014, which will automatically serve a Notice of

Electronic Filing to all parties and counsel.

/s/ Jason P. SteedJason P. SteedCounsel for Plaintiffs


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EXHIBIT A

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EXHIBIT B


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EXHIBIT C


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EXHIBIT D


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EXHIBIT E


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EXHIBIT F


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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

Shannon ZAHRN, Catherine Zahrn,Alexius Augustine, and Andrew Simpson,on behalf of themselves and all otherssimilarly situated,

Plaintiffs,

v.

Rick PERRY, in his official capacity asGovernor of Texas; Greg Abbott, in hisofficial capacity as Attorney General ofTexas; and Dana DeBeauvoir, in her officialcapacity as County Clerk of TravisCounty, Texas,

Defendants.

Civil Action No. 1:13-cv-00955

Order Granting

Plaintiffs Motion for

Class Certification

Having considered Plaintiffs motion for class certification, and the arguments

and authorities of both Plaintiffs and Defendants, the Court finds Rule 23 is satisfied and

therefore GRANTSthe motion.

The following class of persons will be bound by the final judgment in this case:

a) all individuals who reside in Texas, who wish to marry someone of thesame sex in Texas; and

b) all individuals who reside in Texas, who have been legally married inanother state to someone of the same sex.

This class, however, does not include the plaintiffs in McNosky v. Perry, No. A13-

CV-0631, or DeLeon v. Perry, No. 5:13-CV-982, who are representing their own interests,


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unless these individuals opt in to this class by notifying this Court of their intent and

desire to be included in the class.

The class is certified to determine (1) whether Texas laws against same-sex

marriage violate the Equal Protection Clause of the 14th Amendment to the U.S.

Constitution; (2) whether Texas laws against same-sex marriage violate the Due

Process Clause of the 14th Amendment to the U.S. Constitution; (3) whether Texas

laws against same-sex marriage violate the federal constitutional right to travel;

(4) whether Texas laws against same-sex marriage, and section 2 of the federal

Defense of Marriage Act, violate the Full Faith and Credit Clause of Article IV of the

U.S. Constitution; (5) whether Defendants have deprived Plaintiffs of their

constitutional rights in violation of 42 U.S.C. 1983; and (6) whether Defendants must

pay class counsel fees and costs.

Plaintiffs seek declaratory and injunctive relief on behalf of the class, and the

class will be bound by the judgment. Thus, in answer to each of the constitutional

questions, Texas laws against same-sex marriage will be deemed unconstitutional and

unenforceable as to all of the class membersor as to none of them.The Court appoints Jason P. Steed (SBN 24070671), James J. Scheske (SBN

17745443), S. Leigh Jorgeson (SBN 24070026), and Ian Pittman (SBN 24064131) as

class counsel.

SIGNED on _________________________________, 2014.

___________________________________The Honorable Sam Sparks


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