Case No.: 14-1341 __________________________________________________________________ In the United States Court of Appeals for the Sixth Circuit APRIL DEBOER, et. al., Plaintiffs/Appellees, v. RICHARD SNYDER, et. al., Defendants/Appellants. __________________________________________________________________ On Appeal from the United States District Court for the Eastern District of Michigan, Southern Division Hon. Judge Bernard Friedman __________________________________________________________________ MOTION TO INTERVENE MOTION FOR EXPEDITED REVIEW NOW COMES Erin Blankenship and Shayla Blankenship, by and through the LAW OFFICES OF GREGORY T. GIBBS, and in support of their motion to intervene and for expedited review state as follows: 1. Intervenors Erin and Shayla Blankenship are a committed, married same-sex couple residing in Genesee County, Michigan. See generally Ex. A-Affidavit of Case: 14-1341 Document: 39-1 Filed: 04/21/2014 Page: 1 (1 of 26)
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inescapable conclusion. In Bolling, the Court recognized that the Equal Protection
clause was “a more explicit safeguard of prohibited unfairness” than the Due Process
Clause. See Bolling, supra at 499. The citation to Adarand Constructors also
clarifies that the Windsor Court was interpreting the protections of the Due Process
Clause as at least providing the same protection that would be afforded by the Equal
Protection Clause of the Fourteenth Amendment. See Adarand Constructors Inc,
515 U.S. at 217-218 (recognizing that cases decided after 1964 “continued to treat
the equal protection obligations imposed by the Fifth and the Fourteenth
Amendments as indistinguishable.”). Because the marriage amendment was
necessarily harmonized with the state’s equal protection clause, the invalidation of
the former realigns the latter with the Equal Protection Clause of the 14th
Amendment and the Due Process Clause of the Fifth Amendment. See Windsor,
supra at 2695 (“While the Fifth Amendment itself withdraws from Government the
power to degrade or demean in the way this law does, the equal protection guarantee
of the Fourteenth Amendment makes that Fifth Amendment right all the more
specific and all the better understood and preserved.”). This renders any statutory
impediments null and void.1
This is the position that the State of Michigan took last month in oral arguments1
before this Court en banc. According to the state attorney general, “a court’sdeclaration that a law is unconstitutional” means that “in that circumstance, the lawwas never valid and is considered void ab initio.” See City of Pontiac Retired
18. Because of the stay imposed in this case, however, the Blankenships and
similarly-situated same-sex couples married out of state are prohibited from jointly
adopting their children or having the state recognize them as equal parents. They are
also denied all other benefits and obligation that follow from recognition of their
existing marriages.
19. The right to marry also includes the right to remain married, one that is
secured by the Due Process Clause. See Obergefell v. Wymyslo, 962 F. Supp. 2d 968
(S.D. Ohio 2013). Just as Windsor established that the federal government has no
power to invalidate a lawful marriage for federal purposes, Obergefell and similar
cases establish that the states do not have roving and unrestricted power to render a
valid marriage null and void without establishing a sufficiently compelling reason.
Yet this is precisely what the Attorney General hopes to accomplish by enforcing the
stay in this case and, presumably, through the application of any adverse decision to
later cases involving the recogniton of valid out-of-state marriages.
20. Although the Blankenships must establish that their legal interests will be
impaired in the absence of intervention, this Court has recognized that their burden
“is a minimal one.” See Michigan State v. Miller, 103 F.3d 1240, 1247 (6 Cir.th
Employees v. Schimmel, et. al., Case No. 12-2087, Doc. No. 006111941849,Supplemental Brief of Intervenor State of Michigan dated January 21, 2014, p. 23(citing Stanton v. Lloyd Hammond Produce Farms, 400 Mich. 135, 144–45 (1977).
men.4 This hostility finds expression at virtually all levels of government and is
even reflected in the decisions of Michigan’s nonpartisan judiciary. The Michigan
Supreme Court, for example, has embraced an unusually expansive construction of
the marriage amendment at issue in this case, finding that it precluded the extension
of health care coverage to public employees if their spouses were the same gender.
See Nat'l Pride at Work, Inc. v. Governor of Mich., 481 Mich. 56; 748 N.W.2d 524
(2008). In that decision, the Michigan Supreme Court also refused to review an
intermediate appeals court that refused to extend basic equal protection principles to
discrimination on the basis of sexual orientation. See id; see also Nat'l Pride at
Work, Inc. v. Governor of Mich., 274 Mich. App. 147; 732 N.W.2d 139 (2007).
28. Michigan’s courts do not create the hostile legal atmosphere, but they do
reflect the animus exhibited by the State of Michigan, including its legislature. For
example, Michigan does not prohibit anti-gay discrimination in the private
marketplace, although it does extend other unusual protections to people on the basis
of categories not included in analogous federal legislation, including weight. See
Although the State of Michigan parties claim that they are motivated not by4
animus but by a mere desire to uphold the law, this is at least arguably inconsistentwith their recent decisions to refuse to enforce other laws that federal DistrictCourts declared unconstitutional, including a law that was signed by DefendantSnyder. See Platinum Sports v. Snyder, 715 F.3d 615 (6th. Cir. 2013). It is alsoarguably inconsistent with the State’s decision to use taxpayer money to presentexpert testimony in support of a study that the lower court in this case deemed littlemore than an example of politically motivated junk science.
Blankenships request that this Court grant expedited review of their Motion to
Intervene as they have demonstrated good cause as to why the motion should receive
expedited review.
CONCLUSION
WHEREFORE, for the reasons set forth above, the Blankenships request that
this Court GRANT their Motion to Intervene pursuant to Fed. R. Civ. P. 24(a) or
(b), so that they may adequately protect their interests on appeal.
Respectfully submitted,
/s/ Alec Scott Gibbs (P73593)Law Offices of Gregory T. Gibbs717 South Grand Traverse StreetFlint, MI 48502Attorneys for Proposed Intervening Plaintiffs
UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT
Appearance of Counsel
Sixth CircuitCase No.:
Case Name: vs.
Client’s orClients’ Name(s): (List all clients on this form, do not file a separate appearance form for each client.)
G Appellant
G Appellee
G Petitioner
G Respondent
G Amicus Curiae
G Intervenor
G Criminal Justice Act (Appointed)
Lead counsel must be designated if a party is represented by more than one attorney or law
firm. Check if you are lead counsel. G
Name: Admitted: (Sixth Circuit admission date only)
Signature:
Firm Name:
Business Address:
Suite: City/State/Zip:
Telephone Number (Area Code):
Email Address:
6ca-686/12
CERTIFICATE OF SERVICE
I certify that on the foregoing document was served on all parties ortheir counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing atrue and correct copy in the United States mail, postage prepaid, to their address of record.