UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA CIVIL ACTION FILE NO. 1:12-CV-589-WO-JEP MARCIE FISHER-BORNE, et al.; Plaintiffs, vs. JOHN W. SMITH, et al.; Defendants. _______________________________________ ) ) ) ) ) ) ) ) ) ) STATE DEFENDANTS’ REPLY TO PLAINTIFFS’ CONSOLIDATED RESPONSE Plaintiffs filed this action initially to challenge North Carolina’s adoption laws. They later amended the lawsuit by adding Equal Protection and Due Process challenges to North Carolina’s marriage laws. [DE 40]. Approximately two years after the filing of the original complaint, Plaintiffs Shana Carignan and Megan Parker filed a motion for a preliminary injunction on April 9, 2014. [DE 75]. Defendants JOHN W. SMITH, in his official capacity as the Director of North Carolina Administrative Office of the Courts; THE HONORABLE DAVID L. CHURCHILL, in his official capacity as Clerk of the Superior Court for Guilford County; THE HONORABLE ARCHIE L. SMITH III, in his official capacity as Clerk of the Superior Court for Durham County; ROY A. COOPER, in his official capacity as the North Carolina Attorney General , (collectively referred to as the “State Defendants”), moved to dismiss 1 Plaintiffs’ Amended Complaint, filed a response in opposition to Plaintiffs’ motion for preliminary injunction, and filed a motion to stay the proceedings pending an opinion of the Fourth Circuit Court of Appeals in the case of Bostic v. Schaefer. [DE 65, 66, 84, 85, 88]. Plaintiffs responded by opposing Pending before the court is the parties' proposed consent order that reflects the dismissal of the Attorney 1 General as a named party-defendant, and a contemporaneous agreement to amend the case caption to include the Attorney General as an Intervenor on behalf of the State of North Carolina. Case 1:12-cv-00589-WO-JEP Document 96 Filed 05/22/14 Page 1 of 10
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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION FILE NO. 1:12-CV-589-WO-JEP
MARCIE FISHER-BORNE, et al.;
Plaintiffs,
vs.
JOHN W. SMITH, et al.;
Defendants.
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STATE DEFENDANTS’ REPLY
TO PLAINTIFFS’ CONSOLIDATED
RESPONSE
Plaintiffs filed this action initially to challenge North Carolina’s adoption laws. They later
amended the lawsuit by adding Equal Protection and Due Process challenges to North Carolina’s
marriage laws. [DE 40]. Approximately two years after the filing of the original complaint, Plaintiffs
Shana Carignan and Megan Parker filed a motion for a preliminary injunction on April 9, 2014. [DE 75].
Defendants JOHN W. SMITH, in his official capacity as the Director of North Carolina Administrative
Office of the Courts; THE HONORABLE DAVID L. CHURCHILL, in his official capacity as Clerk of the
Superior Court for Guilford County; THE HONORABLE ARCHIE L. SMITH III, in his official capacity
as Clerk of the Superior Court for Durham County; ROY A. COOPER, in his official capacity as the
North Carolina Attorney General , (collectively referred to as the “State Defendants”), moved to dismiss1
Plaintiffs’ Amended Complaint, filed a response in opposition to Plaintiffs’ motion for preliminary
injunction, and filed a motion to stay the proceedings pending an opinion of the Fourth Circuit Court
of Appeals in the case of Bostic v. Schaefer. [DE 65, 66, 84, 85, 88]. Plaintiffs responded by opposing
Pending before the court is the parties' proposed consent order that reflects the dismissal of the Attorney1
General as a named party-defendant, and a contemporaneous agreement to amend the case caption to include theAttorney General as an Intervenor on behalf of the State of North Carolina.
Case 1:12-cv-00589-WO-JEP Document 96 Filed 05/22/14 Page 1 of 10
the State Defendants’ motion to stay. [DE 91]. By and through the undersigned attorneys, the State
Defendants now submit the following Reply to Plaintiffs’ consolidated response . 2
In addition to the argument infra, the State Defendants also rely on arguments that have been
propounded in their motion to dismiss and supporting brief, their response in opposition to Plaintiffs’
motion for preliminary injunction, their motion to stay proceedings and attendant supporting brief, which
are incorporated herein by reference. [DE 65, 66, 84, 85, 88].
ARGUMENT
Plaintiffs argue that this Court should reject the State Defendants’ motion for stay because (1)
“Plaintiffs’ challenge to North Carolina’s adoption laws are [sic] not the issue in Bostic,” (2) “[w]hatever
merits there may be in staying relief ..., there is absolutely no merit or justification to stay this matter and
deprive Plaintiffs even of their ability to attempt to prove their claims,” and, (3) because Defendants have
purportedly failed to meet their burden of persuasion sufficient to warrant a stay. [DE 91 pp 7, 11-16].
Plaintiffs’ argument is inconsistent with pertinent issues and standards.
I. THE IMPENDING FOURTH CIRCUIT’S OPINION IN BOSTIC v. SCHAEFER WILL
SIGNIFICANTLY IMPACT THE JURISPRUDENCE APPLICABLE TO THE INSTANT
MATTER, MAKING IT AN APPROPRIATE CASE IN WHICH TO ORDER A STAY.
With their motion to stay and supporting brief, the State Defendants established that the
interests of judicial efficiency weigh heavily in favor of ordering a temporary stay. [DE 84, 85] However,
Plaintiffs claim that they “are not asking the Court to predict what the Fourth Circuit will do in Bostic.”
On April 29, 2014, State Defendants consented to Plaintiffs’ request to submit a single2
consolidated memorandum addressing their respective positions regarding the motion for preliminaryinjunction and motion for stay for the convenience of the court.
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[DE 91 p 13]. Instead, they ask the Court to apply “the law as it exists today” [Id.]. Plaintiffs further
argue that because second-parent adoption statutes are not at issue in Bostic, the Fourth Circuit “is
unlikely to resolve” the unique issues herein. [Id. p 13]. Those arguments are inaccurate.
With their response, Plaintiffs acknowledge the State Defendants’ argument that Bostic may
have significant precedential impact upon this matter. [DE 91 p 22]. While it is true that second-parent
adoption issues are not likely to be addressed with Bostic, if the Fourth Circuit concludes that the
definition of marriage as being a union between one man and one woman is irrational, or otherwise
unconstitutional, the adoption issue posed by the instant matter will be contemporaneously resolved:
married Plaintiffs will be able to apply for second-parent adoption. In other words, the second-parent
adoption challenge raised by the instant matter is derivative of the same-sex marriage issue, and no
further judicial action on the issue of adoption will be necessary.
If a plurality of the Fourth Circuit panel in Bostic concludes that the historic definition of marriage
employed by those Plaintiffs violates neither the Equal Protection Clause nor Due Process rights, this
Court’s and parties’ resources will be streamlined and focused on resolving the single, narrow issue of
whether North Carolina’s adoption laws limiting adoptions to married couples or to single individuals
feature a rational, Constitutional basis. Irrespective of the outcome in Bostic, judicial economy
(recognized as a valid factor by Plaintiffs [DE 91 pp 12-13]), is preserved only by the requested stay.
Moreover, the advanced appellate posture of Bostic is compelling, unique, and creates the ideal
environment for a stay. Unlike the three lower court cases from the Sixth Circuit, relied upon by
Plaintiffs in their response, [DE 91, p 16], the Fourth Circuit has expedited the appellate schedule, and
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has already heard oral arguments in Bostic. Because of this expedited schedule, it is expected that an
opinion will be soon rendered during the course of the next several weeks. For the reasons cited in the
State Defendants’ brief in support of their motion to stay, [DE 85], this Court should exercise its broad
discretion and stay the proceedings herein “for economy of time and effort for itself, for counsel, and for
litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).
II. THE STATE DEFENDANTS HAVE MET THEIR BURDEN TO WARRANT THE STAY.
Contrary to Plaintiffs’ argument, the State Defendants delineated the correct standard for the
evaluation of motions for preliminary injunction and motions to stay, and further proffered compelling
arguments as to why those motions should be decided in favor of the State Defendants. For the
reasons previously described in the State Defendants’ brief opposing Plaintiffs’ motion for preliminary
injunction, Plaintiffs have failed to meet their heavy burden of persuasion sufficient to satisfy the four
elements necessary to permit the grant of the extraordinary remedy of injunction. [DE 88 pp 2-4].
With their consolidated memorandum, Plaintiffs rely on their claim that irreparable harm will
occur if the injunction is not granted, yet fail to demonstrate how their individual circumstances present
exigencies such that a stay of several weeks or months (the likely time-frame for the Fourth Circuit’s
opinion in Bostic) will work a substantial harm that cannot be reversed. If the definition of marriage as
a union between a man and a woman is ultimately found to be unconstitutional, Plaintiffs will be able
to marry and address the harms they allege.
Predicated upon lower court opinions of other circuits, Plaintiffs argue that they are likely to
prevail even in the face of Fourth Circuit’s contrary precedent which provides that the deferential rational
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basis standard of review is applicable. Plaintiffs’ argument that a stricter level of review should apply3
and their opposition to a stay is inconsistent with the doctrine of stare decisis, and fails short of the
required proof that Plaintiffs are likely to succeed on the merits. See Veney v. Wyche, 293 F. 3d 726
(4th Cir. 2002); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir.), cert. denied, 519 U.S. 948 (1996); see
also Goulart v. Meadows, 345 F.3d 239, 260 (4th Cir. 2003). At the same time, the State Defendants
have outlined a number of reasons for the proposition that North Carolina’s definition of marriage is
rational. [DE 38 pp 16-17]. Absent a contrary ruling from the Court of Appeals for the Fourth Circuit,
or the Supreme Court of the United States, Plaintiffs have failed to carry their burden of persuasion
sufficient to warrant immediate injunctive relief.
As the State Defendants have previously noted, Bostic may also render this Court’s
determinations as moot, cause them to be overruled, or warrant remand for further (and different)
proceedings. Moreover, allowing the requested stay pending the opinion in Bostic will avoid the
complex practical ramifications flowing from the alteration of statewide status quo regarding marriage,
and preserve North Carolina’s ability to decide domestic issues without federal intervention. These
various reasons provide further grounds to order the temporary stay.
Contrary to Plaintiffs’ arguments [DE 91 p 10], neither Veney v. Wyche, 293 F. 3d 726 (4 Cir.3 th
2002), nor Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996), in any way relied upon or referred to theoverruled case, Bowers v. Hardwick, 478 U.S. 186 (1986). Opinions in Veney and Thomasson are goodlaw that is binding until overruled by the Fourth Circuit or the Supreme Court of the United States.
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III. OTHER FEDERAL COURTS, INCLUDING THE COURT IN THE WESTERN DISTRICT OF
NORTH CAROLINA, HAVE GRANTED STAYS IN SIMILAR CASES.
In support of the motion to stay,[DE 84, 85], the State Defendants rely upon a line of cases
where similar stays have been granted. Recently, in a same-sex marriage case pending in the
Asheville division, the federal court in the Western District of North Carolina issued a stay of all
proceedings pending the Fourth Circuit’s decision in Bostic. McCrory v. The State of North Carolina, No.
1:14-cv-65 (W.D.N.C. May 19, 2014). [Exh A]. However, the most significant stay in cases addressing
the issue of same-sex marriage was ordered by the Supreme Court of the United States, after the lower
court and the appellate court refused to stay proceedings as requested by the State of Utah. See
Herbert v. Kitchen, 134 S. Ct. 893 (2014). As has been noted by the State Defendants and other
federal courts, the interim lack of a stay in Utah created an uncertain legal environment in which neither
the Courts, the public officials, nor the various plaintiffs knew what rights, if any, had been permanently
afforded. A stay in the instant matter forestalls the complex ramifications that are likely to arise by virtue
of a premature decision on the issues, for which binding precedent is currently being contemplated by
the Fourth Circuit. In his concurring opinion to grant a stay pending the appeal in the Idaho same-sex
marriage case, Judge Hurwitz of the Ninth Circuit noted that, regardless of the perceived strength of the
plaintiffs’ argument on the merits: “...I believe that the Supreme Court, in Herbert v. Kitchen, 134 S. Ct.
893 (2014), has virtually instructed courts of appeals to grant stays in the circumstances before us
today.” Latta v. Otter, No. 14-35420 (9th Cir., May 20, 2014). [Exh B]. The stay requested by State
Defendants is clearly appropriate in the instant case.
Plaintiffs further contend that, while there may be merit in staying the relief afforded by a
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preliminary injunction, there is no reason the Court should refrain from actually offering its opinion that
such an injunction is warranted. [DE 91 pp 15-16]. That contention ignores the import of the opinion in
Herbert, and the main rationale behind the propriety of a stay - the preservation of judicial economy and
integrity. The issuance of an injunction, with a simultaneous stay of the judgment thereon, would offer
no practical effect upon or relief for the parties despite the expenditure of the Court’s and litigants’
resources, and will potentially create uncertainty in North Carolina as to the legal status of same-sex
couples. The stay is appropriate and prudent now, at this procedural juncture.
Finally, it should be noted that these two cases have been asserted roughly simultaneously to
two other same-sex marriage challenges in North Carolina. The possibility certainly exists that, if
decided prior to the Fourth Circuit’s opinion in Bostic, conflicting orders and opinions may be offered by
the various Courts. A stay of these cases serves the interests of uniformity of jurisprudence, and equal
application of the law, as described by Bostic, to all of North Carolina’s citizens. Given that a decision
in Bostic is forthcoming, a stay of all proceedings is the most prudential and considered course of action
in this matter.
CONCLUSION
For the foregoing reasons, this Court should deny Plaintiffs’ motion for preliminary injunction
and order a stay of all proceedings pending the Fourth Circuit’s opinion in Bostic. Alternatively, the
State Defendants respectfully request the Court to stay the judgment on any decision potentially
unfavorable to the State pending appeal of that decision to the Fourth Circuit.
Respectfully submitted, this the 22nd day of May, 2014.
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