1 DISTRICT COURT, ADAMS COUNTY, COLORADO Adams County Justice Center 1100 Judicial Center Drive Brighton, CO 80601 REBECCA BRINKMAN AND MARGARET BURD, et al. Plaintiffs, v. KAREN LONG, in her official capacity as Clerk and Record of Adams County, et al. , Defendants. COURT USE ONLYJOHN W. SUTHERS, Attorney General DANIEL D. DOMENICO, Solicitor General* MICHAEL FRANCISCO, Assistant Solicitor General* KATHRYN A. STARNELLA, Assistant Attorney General* Ralph L. Carr Colorado Judicial Center 1300 Broadway, 10th Floor Denver, CO 80203 Telephone: 720.508.6551 Email: [email protected]; [email protected]; [email protected]Registration Numbers: #32083, #39111, #43619 *Counsel of Record Case No. 13CV032572 (Consolidated with 14cv30731, Denver) Div.: C REPLY IN SUPPORT OF MOTION FOR STAY IN THE EVENT OF JUDGMENT FOR THE PLAINTIFFS The State of Colorado, without opposition from the Adams County Plaintiffs or Clerk, has taken the unusual step of requesting a stay of this Court’s ruling
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DISTRICT COURT, ADAMS COUNTY, COLORADO Adams County Justice Center 1100 Judicial Center Drive Brighton, CO 80601 REBECCA BRINKMAN AND MARGARET BURD, et al. Plaintiffs, v. KAREN LONG, in her official capacity as Clerk and Record of Adams County, et al., Defendants. COURT USE ONLY JOHN W. SUTHERS, Attorney General DANIEL D. DOMENICO, Solicitor General* MICHAEL FRANCISCO, Assistant Solicitor
General* KATHRYN A. STARNELLA, Assistant Attorney
General* Ralph L. Carr Colorado Judicial Center 1300 Broadway, 10th Floor Denver, CO 80203 Telephone: 720.508.6551 Email: [email protected]; [email protected]; [email protected] Registration Numbers: #32083, #39111, #43619 *Counsel of Record
Case No. 13CV032572 (Consolidated with 14cv30731, Denver) Div.: C
REPLY IN SUPPORT OF MOTION FOR STAY IN THE EVENT OF JUDGMENT FOR THE PLAINTIFFS
The State of Colorado, without opposition from the Adams County Plaintiffs
or Clerk, has taken the unusual step of requesting a stay of this Court’s ruling
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before any ruling has been issued. The motion was filed in an abundance of caution
on the same day the Tenth Circuit ruled against Utah’s marriage laws, but stayed
its opinion pending appeal. With the same legal issue possibly before this Court in
the near future, the important and consequential question of a stay calls for careful
consideration.
It should go without saying that the State of Colorado resolutely stands
behinds its marriage laws and defends them as entirely consistent with the U.S.
Constitution. Even so, recent circumstances in Colorado and the experiences of
many sister States in substantially similar litigation support an immediate stay of
any decision redefining marriage for a State. The orderly administration of justice
and the rule of law strongly favor a stay.
As explained more fully below, both state and federal law overwhelmingly
favor an immediate stay of any judgment in this case adverse to Colorado. Weighty
equitable considerations, including the impact of this case on the citizens of
Colorado not party to this lawsuit, solidify the need for a stay. It is not without
reason that the U.S. Supreme Court and all four Federal Courts of Appeals
(including one Circuit twice) have reached this precise issue have all issued stays in
cases where State marriage laws were struck down. See infra, n.2 (collecting cases).
The most the Denver Plaintiffs and Clerk can muster against this overwhelming
precedent is to point to three cases where a stay was not issued because no party
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requested a stay (or defended the law in question). The latter fact was not mentioned
in the Response.
Even if this Court ultimately rejects the legal arguments presented by the
State of Colorado on the merits, the purely procedural issue of staying the judgment
so the parties can seek an expedited review is simply the right thing to do. Ordering
clerks to issue marriage licenses for a day, or a few days, while an appellate court
considers a request for a stay pending appeal (which Colorado would immediately
seek), would not preserve the status quo, but instead would invite a race to the
clerks’ office, result in irreparable injury to the State, licenses issued under a legal
cloud of uncertainty, and undermine the predictable and standard judicial process
for testing the constitutionality of state laws.
I. Special Considerations in Colorado Favor a Stay. Because of the nature of the relief sought by the Plaintiffs – including an
injunction to issue marriage licenses, the procedural matter of staying an order
pending appeal becomes all the more important. Once issued, marriage licenses
create numerous legal ramifications. Should the State Health Department register
the certificate? Should it be un-registered if a stay is later granted, or the decision
overturned? Even as to individuals, issuing marriage licenses on such fleeting and
uncertain circumstances has consequences. Would wedding plans be made, and
then canceled, if the decision is stayed days later, or ultimately overturned? Would
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this case be moot, or parts of it moot, if some Plaintiffs were to obtain a license
before a stay could be issued?
Make no mistake – the Denver Plaintiffs’ position on this court denying a
stay would only invite chaos and require emergency procedural appeals. As
everyone recognizes, this court will not have the last word on the constitutionality
of Colorado’s marriage laws. That word will almost certainly come from the
Colorado Supreme Court or the U.S. Supreme Court. Why then, would this Court
not stay its order to allow the normal appeals process to run (as it has been running
in every other State where marriage laws have been struck down and then
appealed). To temporarily deny a stay, furthermore, would only force the appeals
courts to step in on short-notice, creating a race to the courthouse that does not
serve the public interest.
In addition, the recent actions of a County Clerk in Boulder underscores the
need for the courts to have the opportunity to resolve this crucial legal issue and
provide clear and binding guidance to the people of Colorado. While the State of
Colorado has started to work towards a swift legal resolution of the situation in
Boulder, the fact of those same-sex marriage licenses being issued counsels against
another temporary, legally unstable class of same-sex marriage licenses being
issued by a non-stayed injunction in this case. See Letter from Colorado Solicitor
General to Boulder County Clerk & Recorder, 6/27/14, attached as Exhibit A.
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What the Denver Plaintiffs contemplate, some hours where an injunction is
in effect before a Court of Appeals or the Colorado Supreme Court can act on an
emergency request for a stay, licenses could be issued and courts and citizens alike
would have to sort out the legal implications for such temporarily issued licenses.
II. Colorado Law Favors a Stay Pending Appeal. Yes, Colorado relies heavily on federal cases where marriage laws have been
found unconstitutional, but then stayed pending appeals. The Denver Plaintiffs and
Clerk are quick to point out that Colorado law, not federal law, governs the
procedural question of a stay, pointing to Romero v. City of Fountain, 307 P.3d 120,
122 (Colo. App. 2011), as setting out the four-factor test courts “in Colorado” apply
to questions of a stay. These factors, critically, are the same four-factors applied by
federal courts. In fact, the Romero court expressly noted that the legal standards
were being adopted directly from federal precedent regarding stays.
Romero’s motion does not recite any authority expressly setting forth the standards employed to determine whether such a stay should be issued from an order denying a preliminary injunction. Our research also does not reveal any published Colorado appellate decision setting forth such standards. [discussion of federal standards] We conclude that the federal standards for analyzing whether or not to grant a stay are well reasoned and should be applied by this court when considering whether to stay an order denying or granting an injunction.
Romero v. City of Fountain, 307 P.3d 120, 122 (Colo. Ct. App. 2011); compare Hilton
v. Braunskill, 481 U.S. 770, 776 (1987) (same four factors). For this reason, the
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federal cases staying orders in marriage litigation where the circumstances are
identical to this case and the legal claims are identical to this case cannot simply be
ignored as irrelevant or unpersuasive. As the same legal analysis and factors
regarding stays applies in federal court as Colorado court, the cases remain directly
on point.
There is no jurisprudential reason for orders striking down traditional
marriage laws to be stayed in Oklahoma, Virginia, Utah, Kentucky, Texas,
Tennessee, Michigan, Indiana, Ohio, Idaho, and Wisconsin, but not in Colorado.1
The Denver Plaintiffs blithely reject these cases (including the U.S. Supreme Court
in the Utah case, the Tenth Circuit in the Utah case, the Ninth Circuit in the Idaho
case, and the Sixth Circuit in the Michigan case,2 as unpersuasive because they do
1 District Court decisions granting stay: Bishop v. United States, ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) (Oklahoma); Bostic v. Rainey, No. 2:13cv395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014) (Virginia); De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) (Texas); Bourke v. Beshear, No.3:13-CV-750-H, 2014 WL 556729, at *14 (W.D. Ky. Feb. 12, 2014) (Kentucky) (stay granted, noting “[i]t is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well”); Henry v. Himes, No. 14-cv-129, *1-2 (S.D. Ohio April 16, 2014) (stay pending appeal granted) (Ohio) (attached as Exhibit B); Wolf v. Walker, No. 14-cv-64-bbc, *12 (W.D. Wis. June 13, 2014) (“I do not interpret Geiger as undermining the Court’s order in Herbert. .. Because I see no way to distinguish this case from Herbert, I conclude that I must stay any injunctive relief pending appeal.”) (Wisconsin) (attached as Exhibit C); see also n.2 infra. 2 Herbert v. Kitchen, 134 S.Ct. 893 (U.S. Jan. 6, 2014) (stay pending appeal granted); Kitchen v. Herbert, No. 13-4178, slip op. 64-65 (10th Cir. June 25, 2014) (same) (Utah); Latta v. Otter, No. 14-35420 (9th Cir. May 20, 2014) (same) (Idaho); DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014) (same) (Michigan). The Latta and DeBoer decisions were attached to the Denver Plaintiffs and Clerk’s
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not provide enough analysis.3 Especially when the emergency basis of these
decisions is taken into account – the short analysis is understandable. The Sixth
Circuit acted four days after the district court denied a stay, the Ninth Circuit acted
one day later (on a temporary basis), and then six days later (on a permanent basis),
and the Supreme Court acted unanimously in six days (after an emergency motion).
Most recently, the Seventh Circuit granted Indiana’s motion for a stay within two
hours of the motion being filed. The depth of analysis is thus a thin basis for
rejecting the core holding from each case: rulings striking down traditional
marriage laws in favor of same-sex marriage should be stayed pending appeals.
There is no question that each federal case was applying the same four-
factors regarding stays that Colorado courts have adopted for the same legal
question. The Denver Plaintiffs and Denver Clerk have not attempted to argue
otherwise. That the federal courts did not explain the result in detail does not, then,
response. See also Tanco v. Haslam, No.14-5297 *2 (6th Cir. April 25, 2014) (per curium) (“Because the law in this area is so unsettled, in our judgment the public interest and the interests of the parties would be best served by this Court imposing a stay on the district court’s order until this case is reviewed on appeal.”) (Tennessee) (attached as Exhibit D); Baskin v. Bogan, No. 14-2386 (7th Cir. June 27, 2014) (granting stay pending appeal) (attached as Exhibit E) (Indiana). 3 The Denver Plaintiffs and Clerk also point to the U.S. Supreme Court’s decision denying a non-party, the National Organization for Marriage’s, motion to stay the Oregon decision. That decision, however, says nothing about the legal question this Court faces: when the State actively defends its marriage law and appeals any adverse decision, the State as a party defendant must be given a stay – consistent with the Utah decision. The Tenth Circuit itself considered this order when it decided to immediately stay it’s judgment in the Utah case. Kitchen v. Herbert, No. 13-4178 (10th Cir. June 25, 2014).
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diminish the relevance. Plaintiffs are asking this Court to disregard the legal
conclusion of every (not overturned) federal court to reach the issue – not because
these cases made a mistake or got it wrong – but because the decisions were not
verbose. Applying the same legal factors before this court, every federal court faced
with the question of granting a stay has either done so, or been overturned and had
a higher court grant a stay. See supra n.1, n.2 collecting cases.
The Denver Plaintiffs and Clerk are quick to note that there was no stay of
the district court orders in the Oregon, Illinois, Pennsylvania and Indiana cases.4
(The Seventh Circuit has now issued a stay in Indiana.) It remains true, however, in
no marriage case where the State or a party defendant has requested a stay has a
stay been ultimately denied. In fact, in all five instances where the district court
failed to issue a stay in the face of an appeal, a higher court subsequently issued a
stay. See Utah, Idaho, Tennessee, Michigan, and Indiana cases, supra n.1-2.
4 The State of Oregon declined to defend its marriage law in Lee v. Orr –
making the lack of a stay unremarkable. (No party sought a stay, as no appeal will be forthcoming). The State of Illinois declined to defend its marriage law in Geiger v. Kitzhaber, making the lack of a stay unremarkable. (No party sought a stay, as no appeal will be forthcoming). The State of Pennsylvania has not defended its marriage law in Whitewood v. Wolf, however some county clerks have attempted to intervene in the case and have requested a stay in the Third Circuit (request pending). (The lack of a stay by the trial court – at a time when no party asked for a stay is unremarkable). The State of Indiana in Baskin v. Bogan, however, has defended its marriage law and is actively seeking a stay from the District Court (and presumably the Seventh Circuit if necessary). This decision was issued days ago and the request for a stay has not been adjudicated.
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The United States Supreme Court’s recent stay of an injunction granted by a
district court in Utah, in a substantively similar case challenging that state’s
marriage laws, confirms the necessity of staying the injunction pending appellate
review. See Order, Herbert v. Kitchen, No. 13A687 (U.S. Jan. 6, 2014) (granting stay
of injunction pending appeal).5Courts need not dwell on the four-factor test for a
stay when the U.S. Supreme Court has unanimously “instructed courts of appeals to
grant stays in the circumstances” of striking down a state marriage law. Latta, No.
14-35420 (9th Cir. May 20, 2014). The situation here is virtually identical to the
situation in Herbert, and the Supreme Court’s unanimous decision there makes it
clear that in the precise context of an injunction prohibiting the enforcement of
state traditional, gendered marriage laws, a stay pending appeal should be issued
upon the request of a government official tasked with enforcing the state’s marriage
laws.
In addition to the plethora of on-point marriage cases being actively appealed
(with stays in place), analogous Colorado cases have been stayed pending appeal.
Because Plaintiffs in this case seek to change the status quo (i.e. have the State
recognize same-sex marriage and issue licenses that, under current law, are not
5 The text of the Supreme Court’s order reads as follows: “The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.”.
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valid), this case bears a resemblance to litigation where an ordinance is declared
unconstitutional and then the government is enjoined and told to issue a permit. In
that analogous circumstance where a district court ordered the city to issue a
permit based on a constitutional claim, the order was stayed by the Colorado
Supreme Court pending final judgment and appellate review. See Combined
Likewise, in criminal cases where a statute is found unconstitutional by the
district court and the result of that finding would require the state to dismiss a
criminal case, the Colorado Supreme Court has found a stay appropriate to
maintain the status quo and allow the case to be appealed and considered by
appellate courts. See, e.g., People v. Moyer, 670 P.2d 785, 787 (Colo. 1983) (after trial
court held statute unconstitutional; the trial court order dismissing the charges was
stayed pending resolution of State of Colorado’s appeal); People v. Mizell, sub nom.
People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 354 (Colo. 1985) (trial
court held act unconstitutional, and ruling stayed pending appeal to supreme court).
In contrast to these state law cases, Plaintiffs point to two cases where an
appellate court upheld a preliminary injunction issued in a constitutional challenge
to state law. The preliminary injunction cases, according to Plaintiffs, foreclose the
question of a stay in similar circumstances because, apparently, the factors for
preliminary injunction are stiffer than those for obtaining a stay. This argument
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proves too much and reads into preliminary injunction cases something about the
law of stays that is not present. Both Evans v. Romer, 854 P.2d 1270, 1286 (Colo.
1993) and Dallman v. Ritter, 225 P.3d 610, 640 (Colo. 2010), cited by Plaintiffs for
this point, say literally nothing about a “stay.” These were simply preliminary
injunction cases. There is no indication that a stay was sought in either case, let
alone sought by the State of Colorado and denied. There is certainly no Colorado
case standing for the proposition that preliminary injunctions foreclose any
possibility of a stay pending appeal.6
III. Four-Factor Test for Deciding Stays Favor’s a Stay Here. While the overwhelming authority discussed above favors granting a stay in
this case, this Court would come to the same conclusion by applying the four-factor
test as discussed by Plaintiffs.
(1) Likelihood of success on the merits.
The Supreme Court’s stay in Kitchen supports the likelihood of success on
appeal here, because the standard for grant of a stay by the Supreme Court is
substantially similar to the standard governing this Court. Hollingsworth v. Perry,
558 U.S. 183, 190 (2010) (per curium) (noting that a stay is appropriate if there is “a
6 The Denver Plaintiffs and Clerk’s argument that preliminary injunction factors subsume or preclude issuance of a stay misses the mark. No preliminary junction has been sought in this litigation and both Colorado and federal courts have no problem applying both the preliminary injunction factors and factors for granting a stay of an injunction pending appeal.
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fair prospect that a majority of the Court will vote to reverse the judgment below.”).
Although the Supreme Court or a Circuit Justice “rarely grants” a “stay
application,” they will do so if they “predict” that a majority of “the Court would
. . . set the [district court] order aside.” San Diegans for Mt. Soledad Nat’l War
Mem’l v. Paulson, 548 U.S. 1301, 1302-03 (2006) (Kennedy, J., in chambers). On
January 6, 2014, after Justice Sotomayor referred the stay application to all the
Justices, the Court unanimously stayed the Kitchen district court’s injunction,
thereby signaling the Court’s belief that it will ultimately set that order aside. See
Order, Herbert v. Kitchen, No. 13A687 (U.S. Jan. 6, 2014). Thus, Colorado, like
Utah, is likely to succeed on the merits. Furthermore, Defendants are likely to
succeed on appeal for the reasons set forth at length in the State of Colorado’s
summary judgment briefing in this case.
(2) The threat of irreparable harm to the State of Colorado is real.
If the injunction is not stayed pending appeal, the State of Colorado and
individuals will suffer irreparable harm. “[I]t is clear that a state suffers irreparable
injury whenever an enactment of its people . . . is enjoined.” Coalition for Econ.
Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (citing New Motor Vehicle Bd. v.
Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers) (“It also
seems to me that any time a State is enjoined by a court from effectuating statutes
enacted by representatives of its people, it suffers a form of irreparable injury.”));
see also O Centro Espirita Beneficiente Uniao De Vegetal v. Ashcroft, 314 F.3d 463,
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467 (10th Cir. 2002) (granting a stay of an injunction because the state suffers
irreparable harm when its statutes are enjoined); see also Planned Parenthood of
Greater Tex. Surgical Health Servs. v. Abbott, 134 S.Ct. 506, 506 (U.S. 2013) (same).
Enjoining a state law as unconstitutional clearly creates an irreparable injury.
In the specific context of state marriage laws, Windsor reaffirmed the state’s
unique interests in its marital statutes, noting that “‘[e]ach state as a sovereign has
a rightful and legitimate concern in the marital status of persons domiciled within
its borders’” and “[t]he definition of marriage is the foundation of the State’s
broader authority to regulate the subject of domestic relations with respect to the
‘[p]rotection of offspring, property interests, and the enforcement of marital
responsibilities.’” United States v. Windsor, 133 S.Ct. 2675, 2691 (2013). Forcing
Colorado to violate its “rightful and legitimate concerns in the marital status of
persons” constitutes irreparable harm to Colorado’s sovereignty.
More practically, the Utah situation serves as an example of the real world
harms that may occur absent a stay in this case. In Utah, the District Court and
Circuit Court declined to issue a stay. Order on Motion to Stay, Kitchen v. Herbert,
No. 2:13-cv-00217-RJS (D. Utah Dec. 23, 2013); Order Denying Emergency Motion
for Stay and Temporary Motion for Stay, Kitchen v. Herbert, 12-4178 (10th Cir. Dec.
24, 2013). A race to the clerk’s office was created and many same-sex couples
hurried to obtain marriage licenses that were issued to them in accord with the
district court’s injunction. Days later, however, the Supreme Court granted a stay of
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the injunction, and Utah’s laws that recognize marriage as a man-woman union
went back into effect and the state did not recognize the licenses that were issued
prior to the Supreme Court’s grant of the stay. That decision precipitated additional
litigation regarding the validity of the licenses issued in the gap time.
Failure to stay an injunction pending appeal in this case would create the
same type of injuries and invite the same chaotic situation where licenses are
issued with a cloud of uncertainty. In contrast, a stay preserving the status quo of
Colorado’s marriage laws mitigate that uncertainty, and prevent state officials and
myriad administrative agencies from having to revise regulations to accommodate
the Injunction, only to have to revise them back if this Court, or a Colorado
appellate court or the U.S. Supreme Court, ultimately upholds traditional state
marriage laws.
(3) A stay to maintain the status quo will not irreparably harm the parties.
A stay would for now maintain the status quo that has prevailed throughout
Colorado’s history and would pose no irreparable harm on the parties. Ashcroft, 314
F.3d at 467 (“Although we do not minimize the imposition on the Plaintiffs’ [alleged
constitutional right in question], a stay will merely reinstate the status quo.”). To be
sure, the violation of an established constitutional right may inflict irreparable
harm, see Elrod v. Burns, 427 U.S. 347, 373 (1976), but in this litigation that factor
does not come into play as the Plaintiffs seek to establish a novel constitutional
15
right through litigation. It cannot be doubted that Plaintiffs have not previously
been permitted to obtain a valid marriage license in Colorado, and thus the
maintenance of that system during the pendency of normal appeals will not inflict
irreparable harm. See, e.g., Rostker v. Goldberg, 448 U.S. 1306, 1310 (1980)
(reasoning that the inconvenience of compelling respondents to register for the draft
while their constitutional challenge was finally determined did not “outweigh[ ] the
gravity of the harm” to the government “should the stay requested be refused”).
On the other hand, if a stay is not granted Colorado officials are enjoined
from enforcing state law pending appeal, irreparable harm will occur to the State
and its citizens that rely on the injunction.
(4) The public interest is served by maintaining the status quo.
It must be stressed that the Supreme Court in Herbert necessarily found that
the public interest is best served by continuing to enforce man-woman marriage
laws until the Court definitively resolves the constitutional issues raised in this case.
Plaintiffs’ arguments do not displace that authoritative guidance.
Colorado has an interest in deciding, through the democratic process, weighty
public policy issues, including those of societal importance such as the definition of
marriage. Removing that decision from the people, and from the Colorado appellate
courts, harms the public interest. Moreover, the public also has an interest in
certainty in the rule of law and in avoiding unnecessary expenditures. If this Court
issued an injunction but does not issue a say, marriages could be entered into under
16
a cloud of uncertainty and the State would face administrative burdens associated
with issuing licenses under that uncertainty. Even as to the people of Colorado,
actions taken in reliance on marriage licenses that may ultimately prove to be
invalid would pervasively impact Colorado. A stay, in contrast, would serve the
public interest by preserving the status quo and allowing the appeals process to
proceed on an issue of substantial state and national importance while preventing
irreparable injury to the state and its citizens.
Respectfully submitted this 30th day of June, 2014.
JOHN W. SUTHERS Attorney General
/s/ Michael Francisco DANIEL D. DOMENICO, 32083* Solicitor General MICHAEL FRANCISCO, 39111* Assistant Solicitor General KATHRYN A. STARNELLA, 43619* Assistant Attorney General Attorneys for the State of Colorado
CERTIFICATE OF SERVICE
I hereby certify that on June 30, 2014, I electronically filed the foregoing Motion with the Integrated Colorado Courts E-Filing System (ICCES), which will send notification of such filing to counsel of record.
/s/ Michael Francisco
Michael Francisco
DATE FILED: June 30, 2014 5:09 PM FILING ID: E16D53ECC5896 CASE NUMBER: 2013CV32572
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BRITTANI HENRY, et al., : Case No. 1:14-cv-129 : Plaintiffs, : : Judge Timothy S. Black vs. : : LANCE HIMES, et al., : : Defendants. :
ORDER GRANTING IN PART DEFENDANT HIMES’S MOTION
FOR STAY OF INJUNCTION PENDING APPEAL
This case is before the Court on Defendant Himes’s oral motion for a stay of the
Court’s final orders pending appeal and the parties’ responsive memoranda.
Both the United States Supreme Court and the United States Court of Appeals for
the Sixth Circuit have recently stayed district court orders enjoining enforcement of state
laws related to same-sex marriage. Herbert v. Kitchen, 134 S. Ct. 893 (2014); Deboer v.
Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014). Most district courts finding state laws
related to same-sex marriage unconstitutional have also stayed their own decisions
pending appeal. See Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729, at *14
(W.D. Ky. Feb. 12, 2014); Bostic v. Rainey, No. 2:13cv395, 2014 WL 561978, at *23
(E.D. Va. Feb 13, 2014); De Leon v. Perry, No. SA-13-CA-00982, 2014 WL 715741, at
*28 (W.D. Tex. Feb. 26, 2014); Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252,
DATE FILED: June 30, 2014 5:09 PM FILING ID: E16D53ECC5896 CASE NUMBER: 2013CV32572
2
United States Judge John G. Heyburn II’s opinion in Bourke, from which this
Court quoted in reaching its decision on the merits, is particularly instructive. In Bourke,
the court struck down Kentucky’s marriage recognition ban, but granted the defendant’s
request for a stay pending appeal. Id., 2014 WL 556729 at *14. Judge Heyburn noted
that the Supreme Court sent a “strong message” that “cannot be easily ignored” when it
granted a stay of the district court’s order in Herbert. Id.1 As Judge Heyburn observed:
“[i]t is best that these momentous changes occur upon full review, rather than risk
premature implementation or confusing changes. That does not serve anyone well.”
Id. This Court agrees.
While this Court believes that Defendant Himes is unlikely to prevail on the merits
of his appeal,2 and will not be irreparably harmed by compliance with the requirements of
the United States Constitution, the Court acknowledges that recognition of same-sex
marriages is a hotly contested issue in the contemporary legal landscape, and, if
Defendant Himes’s appeal is ultimately successful, the absence of a stay as to this
1 See also DeLeon, 2014 WL 715741 at *28 (stay issued “in accordance with the Supreme Court’s issuance of a stay in Herbert v. Kitchen”); Bostic, 2014 WL 561978 at *23 (stay issued “in accordance with the Supreme Court’s issuance of a stay in Kitchen v. Herbert”). 2 Since the Supreme Court’s holding in United States v. Windsor, ten out of ten federal trial courts have all declared unconstitutional and enjoined similar bans in states across the country. See, Kitchen v. Herbert, 2013 WL 6697874, at *30 (D. Utah Dec. 20, 2013); Obergefell, 962 F. Supp.2d at 997-98 (Ohio); Bishop v. United States ex rel. Holder, 2014 WL 116013, at *33-34 (N.D. Okla. Jan. 14, 2014); Bourke v. Beshear, 2014 WL 556729, at *1 (W.D. Ky. Feb. 12, 2014); Bostic v. Rainey, 2014 WL 561978, at *23 (E.D. Va. Feb. 13, 2014); Lee v. Orr, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014); De Leon v. Perry, 2014 WL 715741, at *1, 24 (W.D. Tex. Feb. 26, 2014); Tanco v. Haslam, 2014 WL 997525, at *6, 9 (M.D. Tenn. Mar. 14, 2014); DeBoer v. Snyder, 2014 WL 1100794, at *17 (E.D. Mich. Mar. 21, 2014); Baskin v. Bogan (S.D. Ind. April 10, 2014) (J. Young).
Court’s ruling of facial unconstitutionality is likely to lead to confusion, potential
inequity, and high costs. These considerations lead the Court to conclude that the public
interest would best be served by the granting of a stay. Premature celebration3 and
confusion do not serve anyone’s best interests. The federal appeals courts need to rule,
as does the United States Supreme Court.
While “[t]he arc of the moral universe is long, … it [does] bend[] toward justice”4
– albeit slowly, and properly so in this case, so full review can be achieved by our
independent branch of government.
The same considerations and costs do not attach to Plaintiffs’ as-applied claims,
however, as Plaintiffs have demonstrated that a stay will irreparably harm them
individually due to the imminent births of their children and other time-sensitive
concerns, (as well as due to the continuing Constitutional violations).
Accordingly, based on the foregoing, Defendant Himes’s motion for a stay
pending appeal of the Court’s ruling that Ohio’s marriage recognition bans are facially
unconstitutional is hereby GRANTED, but the Court’s Orders as to the as-applied
challenges of the eight individual Plaintiffs are NOT STAYED.
Ohio shall issue birth certificates for Plaintiffs’ children which list both
lawfully married same-sex spouses as parents.
3 See, e.g., “Columbus gays travel to Chicago to marry,” Columbus Dispatch, Apr. 11, 2014, available at http://www.dispatch.com/content/stories/local/2014/04/11/couples-head-out-to-chicago-to-marry.html (brought to the Court’s attention by the Defendant in its pleading (Doc. 31 at 3)).
4 Martin Luther King, Jr. (March 25, 1965, Montgomery, Alabama)
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Deborah S. Hunt Clerk
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988 Tel. (513) 564-7000
www.ca6.uscourts.gov
Filed: April 25, 2014
Ms. Martha A. Campbell Mr. David C. Codell Mr. Phillip F. Cramer Mr. John Lee Farringer Mr. J. Scott Hickman Ms. Regina Marie Lambert Mr. Shannon Price Minter Mr. Asaf Orr Mr. Kevin Gene Steiling Mr. Christopher F. Stoll Ms. Amy Whelan
Re: Case No. 14-5297, Valeria Tanco, et al v. William Haslam, et al Originating Case No. : 3:13-cv-01159
Dear Sir or Madam,
The Court issued the enclosed Order today in this case.
Sincerely yours,
s/Jill Colyer Case Manager Direct Dial No. 513-564-7024