Vo v. Gee, et al

Filing 96

OPINION AND PERMANENT INJUNCTION: IT IS ORDERED that Plaintiffs 84 Motions for Partial Summary Judgment, Declaratory Judgment and Permanent Injunction are GRANTED. Signed by Judge Ivan L.R. Lemelle on 8/8/2017.(jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VIET ANH VO

CIVIL ACTION

VERSUS

NO. 16-15639

REBEKAH E. GEE,
SECRETARY OF THE DEPARTMENT
OF HEALTH, ET AL

SECTION “B”(5)

OPINION AND PERMANENT INJUNCTION
Before the court are “Plaintiff’s Motion for Partial Summary
Judgment, Declaratory Judgment, and Permanent Injunction” (Rec.
Doc. 84), “Memorandum in Opposition to Plaintiff’s Motion for
Partial

Summary

Injunction”(Rec.
Plaintiff’s

Judgment,
Doc.

Motion

Declaratory

91),

for

Judgment

“Memorandum

Summary

in

and

Permanent

Opposition

Judgment”(Rec.

Doc.

to
89),

“Memorandum in Opposition to Plaintiff’s Motion for Partial Summary
Judgment, Declaratory Judgment and Permanent Injunction” (Rec.
Doc. 90), “Reply in Support of Plaintiff’s Motion for Partial
Summary Judgment, Declaratory Judgment and Permanent Injunction”
(Rec. Doc. 94) and “Notice of Changed Circumstances Regarding HB
439” (Rec. Doc. 95). For the reasons set forth below, IT IS ORDERED
that Plaintiff’s Motions for Partial Summary Judgment, Declaratory
Judgment and Permanent Injunction are GRANTED.

1

FACTS AND PROCEDURAL HISTORY
Plaintiff, Viet “Victor” Anh Vo was born in an Indonesian
refugee camp after his parents (both Vietnamese nationals) fled
Vietnam

as

refugees

(Rec.

Doc.

1).

Given

this

circumstance,

Indonesian and Vietnamese authorities have never recognized his
birth and consequently he has never been issued a birth certificate
from a government entity (Rec. Doc. 1).

Plaintiff has resided in

Louisiana since he was three months old and became a naturalized
citizen when he was eight years old (Rec. Doc. 1). In 2016,
Plaintiff and his girlfriend (a fellow United States citizen)
decided to get married and applied for a marriage license from the
State of Louisiana (Rec. Doc. 1).
Plaintiff was denied a marriage license pursuant to Act 436
which requires that all applicants for a marriage license provide
a certified birth certificate, a valid and unexpired passport, or
an unexpired visa accompanied by a Form I-94 (Rec. Doc. 1). Act
436 has a waiver of the birth certificate requirement but in order
to qualify for the waiver an applicant must be a U.S. citizen that
was born in the United States or one of its territories. Plaintiff
was born outside of the United States and is naturalized citizen
and therefore did not qualify for the waiver (Rec. Doc. 1).

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Plaintiff provided other official documents to the Clerk of Court
including a social security number and a Louisiana state driver’s
license, but without a birth certificate as required by Act 436,
the state of Louisiana refused to issue him a marriage license
(Rec. Doc. 1).
Plaintiff

brought

this

complaint

for

declaratory

and

injunctive relief against Defendants Rebekah Gee, the Secretary of
the Department of Health and Hospitals for the State of Louisiana,
Devin George, State Registrar and Director of the Office of Vital
Records, Michael Thibodeaux, Clerk of Court for Iberia Parish,
Diane Meaux Broussard, Clerk of Court for Vermilion Parish and
Louis J. Perret, Clerk of Court for Lafayette Parish.
After hearing oral argument, this Court in its March 23, 2017
Order and Reasons granted the Plaintiff’s Motion for Preliminary
Injunction (Rec. Doc. 77).
FACTUAL AND LEGAL FINDINGS
A. Plaintiff’s Motion for Permanent Injunction
The

legal

standard

for

obtaining

a

permanent

injunction

mirrors the legal standard for obtaining a preliminary injunction.
Lionhart v. Foster, 100 F. Supp. 2d 383, 385-386 (E.D. La. 1999).
A plaintiff must demonstrate “(1) actual success on the merits;
(2) a substantial threat that failure to grant the injunction will
result in irreparable injury; (3) the threatened injury outweighs

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any damage that the injunction may cause the opposing party; and
(4)

the

injunction

will

not

disserve

the

public

interest.”

Causeway Med. Suite v. Foster, 43 F. Supp. 2d 604, 610 (E.D. La.
1999). However, the difference between the legal standard for a
preliminary injunction and a permanent injunction is that the
Plaintiff must demonstrate actual success on the merits and not
just a likelihood of success. Lionhart, 100 F. Supp. 2d 383, 386.
Nonetheless, all of these factors weigh in favor of the Court
granting a permanent injunction.
1. Actual Success on the Merits
Plaintiff seeks to demonstrate actual success on the merits
through his Motion for Partial Summary Judgment regarding Counts
I and II of the First Amended Complaint (Rec. Doc. 82). Count I
alleges that Act 436 violates the Plaintiff’s Equal Protection
rights (Rec. Doc. 82). Count II alleges that Act 436 violates the
Plaintiff’s Due Process rights (Rec. Doc. 84). These are inherently
purely questions of law and not fact and therefore this Court can
adjudicate the summary judgment motion even in the absence of
discovery. Brazos Valley Coalition for Life, Inc. v. City of Bryan
Texas, 421 F.3d 314, 327 (5th Cir. 2005).

4

Summary judgment is proper if the pleadings, depositions,
interrogatory

answers,

and

admissions,

together

with

any

affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law.

Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett,

477 U.S. 317, 327 (1986).
would

allow

nonmovant.
(1986).

a

reasonable

A genuine issue exists if the evidence
jury

to

return

a

verdict

for

the

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

Although the Court must consider the evidence with all

reasonable inferences in the light most favorable to the nonmoving
party, the nonmovant must produce specific facts to demonstrate
that a genuine issue exists for trial.

Webb v. Cardiothoracic

Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
The moving party bears the initial responsibility of informing
the district court of the basis for its motion. Celotex, 477 U.S.
at 323. The movant must point to “portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits’ which it believes demonstrate the absence
of a genuine issue of material fact.” Id. (citing Fed. R. Civ. P.
56). If and when the movant carries this burden, the nonmovant
must then go beyond the pleadings and use affidavits, depositions,
interrogatory

responses,

establish a genuine issue.

admissions,

or

other

evidence

to

Matsushita Elec. Indus. Co. v. Zenith

5

Radio Corp., 475 U.S. 574, 586 (1986). “[W]here the non-movant
bears the burden of proof at trial, the movant may merely point to
an absence of evidence, thus shifting to the nonmovant the burden
of demonstrating by competent summary judgment proof that there is
an issue of material fact warranting trial. . . . Only when ‘there
is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party’ is a full trial on the merits
warranted.” Lindsey v. Sears Roebuck and Co., 16 F.3d 616 (5th
Cir. 1994). Accordingly, conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
Throughout this litigation the record has not revealed any
disputed issues of material fact. Both Plaintiff and Defendant
agree

upon

the

essential

facts

leading

up

to

and

including

Plaintiff’s attempt to get a marriage license and the subsequent
denial of the same by the State of Louisiana. Consequently, when
deciding whether or not Plaintiff’s Partial Summary Judgment Motion
is appropriate, we must analyze the basic legal questions involved,
namely Equal Protection and Due Process claims.

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a. Equal Protection
Under the United States Constitution, the Equal Protection
Clause protects all individuals from state discrimination. Plyer
v. Doe, 457 U.S. 202, 210 (1982).

The Supreme Court has clarified

that “these provisions are universal in their application, to all
persons within the territorial jurisdiction, without regard to any
differences of race, of color, or of nationality; and the equal
protection of the laws is a pledge of the protection of equal laws.
Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). While states retain
a broad power to classify individuals, under an Equal Protection
analysis “classifications based on alienage like those based on
nationality or race, are inherently suspect and subject to close
judicial scrutiny.” Graham v. Richardson, 403 U.S. 365, 372 (1971).
The Supreme Court has held that classifications, such as the
one made by the State of Louisiana pursuant to Act 436 “must be
analyzed by a reviewing court under strict scrutiny, that is, such
classifications

are

constitutional

only

if

they

are

narrowly

tailored measures that further compelling governmental interests.”
Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 105 (2001).
The birth certificate provisions that the Louisiana legislature
enacted creates classifications that distinguish between United
States

citizens

Plaintiff

was

on

born

the
in

basis
the

of

United

7

their
States

national
and

origin.

lacked

a

If

birth

certificate he could have applied for the waiver of producing a
birth certificate and the State of Louisiana would then under
existing laws grant a marriage license. However, because Plaintiff
was born overseas and thereafter became a naturalized citizen he
is ineligible under Louisiana law to apply for the waiver. The
State of Louisiana fails to demonstrate in their opposition that
this classification based on national origin furthers a compelling
governmental interest that justify treating this Plaintiff and
other similarly situated U.S. citizens differently from U.S. born
citizens merely because of where they were was born. Based on the
undisputed facts and controlling case law it is clear that these
classifications are unconstitutional. Plaintiff has demonstrated
actual success on his equal protection claim and partial summary
judgment is appropriate.
b. Due Process
In addition, Act 436 is unconstitutional because it violates
Plaintiff’s due process rights by denying him the fundamental right
to marriage. Obergefell v. Hodges, 135 S. Ct. 2584, 2602-2603
(2015). The Supreme Court held that even though states may impose
reasonable regulations on marriage, it applies a strict scrutiny
test when regulations “interfere directly and substantially with

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the right to marry.” Zablocki v. Redhail, 434 U.S. 374, 387 (1978).
The

current

birth

certificate

provisions

Plaintiff from obtaining a marriage license.

completely

bar

the

Given the heightened

level of scrutiny that classifications based on national origin
require, and the failure of the State of Louisiana to proffer any
evidence of why this regulation passes constitutional muster, this
Court finds that the Plaintiff also has demonstrated actual success
on the merits of his due process claim.
Nonetheless, Defendants argue that on June 8, 2017, the
Louisiana Legislature passed HB 439 that allows marriage license
applicants unable to provide the required documentation to seek a
judicial waiver. Defendants argue that HB 439 makes the current
controversy moot. Furthermore, Defendants also argue that the
existing preliminary injunction order rendered Plaintiff’s claims
moot and any additional relief would just replicate that prior
decree.

Moreover,

Defendants

also

argue

that

any

declaratory

judgment should only apply to Mr. Vo.
None of these contentions are persuasive. First, the new law,
HB 439, referenced in Defendants’ oppositions, does not remedy the
constitutional deficiencies of Act 436 (Re. Doc. 95). Even though
it addresses the judicial wavier issue in Act 436, Act 439 leaves
intact other provisions of Act 436 such as passport and visa
requirements that only foreign born or naturalized citizens have

9

to

provide.

These

documentary

requirements

also

pose

constitutional issues with Act 436 that the revised statute does
not cure. Defendants’ notion that the preliminary injunction moots
further actions is incorrect. Univ. of Tex. v. Camenisch, 451 U.S.
390, 394-398(U.S. 1981). A preliminary injunction merely analyzes
the likelihood of success on the merits. The previous order was
not a final ruling or determination on the constitutionality of
Act 436. Therefore, there is still an active controversy that
requires adjudication.

Third, there is no legally valid reason to

limit a Declaratory Judgment to apply only to the Plaintiff and
his “unique circumstances.” The Supreme Court has held that a
single plaintiff in an as-applied challenge can invalidate a
statute as it applies to everyone. See, Whole Woman's Health v.
Hellerstedt, 136 S. Ct. 2292, 2297 (2016). The unconstitutionality
of Act 436 applies to all residents of the State of Louisiana, not
just Mr. Vo. The scope of the preliminary injunction order applied
to Plaintiff and all similarly situated U. S. citizens who are
prevented from obtaining a marriage license under Act 436 (Rec.
Doc. 77). This permanent injunction order will do the same.

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2. Threat of Irreparable Injury
Plaintiff

has

demonstrated

that

he

faces

the

threat

of

irreparable injury. The Fifth Circuit clarified and explained, “an
injury is irreparable only if it cannot be undone through monetary
remedies.” Deerfield Medical Center v. Deerfield Beach, 661 F.2d
328, 338, (5th Cir. 1981) (internal quotations omitted). Under
Louisiana state law the Plaintiff is currently being denied the
right to marriage. There is no monetary award that can provide him
that right and therefore he is suffering irreparable harm. In
addition,

the

Fifth

Circuit

has

held

that

the

denial

of

constitutional rights “for even minimal periods of time constitutes
irreparable

injury

justifying

the

grant

of

a

preliminary

injunction.” Deerfield Medical Center, 661 F.2d 328, 338. Plaintiff
has been denied the right to marry since early 2016. Act 436’s
deprivation of Plaintiff’s fundamental right to marriage satisfies
the requirement that Plaintiff faces the threat of irreparable
harm. This factor weighs in favor of the permanent injunction.
3. Weighing of the harms
Plaintiff has demonstrated the threatened injuries outweigh
any damage that the permanent injunction will cause the Defendants.
Sells, 750 F.3d 478, 480. This Court finds that the balancing
analysis weighs heavily in the favor of Plaintiff. The State of
Louisiana is not harmed by having to issue a marriage license to,

11

in this case, a United States citizen who merely lacks a birth
certificate due to circumstances beyond his control. Louisiana’s
enjoinment from enforcing an unconstitutional law does not outweigh
the fundamental right to marriage. Hobby Lobby Stores, Inc. v.
Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013).
4. Whether the injunction will disserve the public interest
The

Fifth

Circuit

has

held

that

injunctions

protecting

constitutional freedoms are always in the public interest. Texans
for Free Enter. v. Tex. Ethics Comm'n, 732 F.3d 535, 539, (5th
Cir. 2013). In the instant matter the permanent injunction protects
the fundamental right to marriage and the right to be free from
unconstitutional discriminatory classifications based on national
origin. Consequently, this factor also weighs in favor of Plaintiff
and his motion for a permanent injunction is deemed appropriate.
PERMANENT INJUNCTION
Under the equitable powers of this Court IT IS ORDERED that
Defendants and their officers, agents, servants and employees are
permanently ENJOINED and RESTRAINED from enforcing Act 436 insofar
as it unconstitutionally deprives U.S. citizens like Plaintiff and
similarly situated U.S. citizens the right to marry based on
national origin.

12

Willful violation of this Order and Permanent Injunction may
subject any person who commits such an act to criminal and/or civil
prosecution for contempt of this Court. Any violation of this Order
and Permanent Injunction will result in immediate issuance of an
order

to

show

cause

for

service

on

the

violator,

who

after

appropriate hearings and findings, will be dealt with within the
sanctions provided by law.
The Court shall retain jurisdiction of this action for all
purposes, including without limitation, all proceedings involving
the interpretation, enforcement or amendment of this Order and
Permanent Injunction.

New Orleans, Louisiana, this 8th day of August, 2017.

____________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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