DISTRICT COURT, ADAM S COUNTY, COLORADO · DISTRICT COURT, ADAM S COUNTY, COLORADO ... REPLY IN...

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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

Commc’ns Corp. v. Denver, 186 Colo. 443, 445-46 (Colo. 1974) (noting “we stayed

enforcement of the preliminary injunction”).

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

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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

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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,

1296 (N.D. Okla. 2014).

Case: 1:14-cv-00129-TSB Doc #: 32 Filed: 04/16/14 Page: 1 of 4 PAGEID #: 880


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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).


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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)


http://www.dispatch.com/content/stories/local/2014/04/11/couples-head-out-to-chicago-to-marry.html

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IT IS SO ORDERED.

Date: 4/16/14 s/ Timothy S. Black Timothy S. Black United States District Judge


IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

VIRGINIA WOLF and CAROL SCHUMACHER,

KAMI YOUNG and KARINA WILLES,

ROY BADGER and GARTH WANGEMANN,

CHARVONNE KEMP and MARIE CARLSON,

JUDITH TRAMPF and KATHARINA HEYNING,

SALUD GARCIA and PAMELA KLEISS,

WILLIAM HURTUBISE and LESLIE PALMER,

JOHANNES WALLMANN and KEITH BORDEN,

OPINION and ORDER

Plaintiffs,

14-cv-64-bbc

v.

SCOTT WALKER, in his official capacity as

Governor of Wisconsin,

J.B. VAN HOLLEN, in his official capacity as

Attorney General of Wisconsin,

OSKAR ANDERSON, in his official capacity as

State Registrar of Wisconsin,

JOSEPH CZARNEZKI, in his official capacity as

Milwaukee County Clerk,

WENDY CHRISTENSEN, in her official capacity as

Racine County Clerk and

SCOTT MCDONELL, in his official capacity as

Dane County Clerk,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

In an order dated June 6, 2014, dkt. #118, I denied defendants’ motion to dismiss

and granted plaintiffs’ motion for summary judgment on plaintiffs’ claim that Wisconsin

laws banning same-sex couples from marrying violated the Fourteenth Amendment to the

1

Case: 3:14-cv-00064-bbc Document #: 134 Filed: 06/13/14 Page 1 of 14


United States Constitution. However, I did not resolve plaintiffs’ request for injunctive

relief or defendants’ request to stay the injunction because plaintiffs had not proposed an

injunction that complied with the specificity requirement in Fed. R. Civ. P. 65(d).

Accordingly, I gave both sides an opportunity to file supplemental materials regarding the

content of the injunction.

In response to the court’s request, plaintiffs submitted a seven-paragraph proposed

injunction:

1. Defendants Wendy Christensen, Joseph Czarnezki and Scott McDonell, in

their official capacities, and their officers, agents, servants, employees and

attorneys, and all those acting in concert with them, are permanently enjoined

from enforcing art. XIII, § 13 of the Wisconsin Constitution and any

Wisconsin statutory provisions limiting marriage to different-sex couples,

including those in Wis. Stat. ch. 765, so as to deny same-sex couples the same

rights to marry that are provided to different-sex couples.

2. Defendants Wendy Christensen, Joseph Czarnezki and Scott McDonell, in

their official capacities, and their officers, agents, servants, employees and

attorneys, and all those acting in concert with them are permanently enjoined

to issue marriage licenses to couples who, but for their sex, satisfy all the

requirements to marry under Wisconsin law.

3. Defendant Oskar Anderson, in his official capacity, and his officers, agents,

servants, employees and attorneys, and all those acting in concert with them,

are permanently enjoined from enforcing art. XIII, § 13 of the Wisconsin

Constitution and any Wisconsin statutory provisions limiting marriage to

different-sex couples, including those in Wis. Stat. ch. 765, so as to deny

same-sex couples the same rights to marry that are provided to different-sex

couples.



are permanently enjoined to accept for registration, assign a date of

acceptance, and index and preserve original marriage documents and original

divorce reports for couples of the same sex on the same terms as for couples

of different sexes under Wis. Stat. § 69.03(5).

2




are permanently enjoined to prescribe, furnish and distribute, under Wis. Stat.

§ 69.03(8), forms required for marriages under Wis. Stat. ch. 69 and Wis.

Stat. § 765.20 that permit couples of the same sex to marry on the same terms

as couples of different sexes.

6. Defendants Scott Walker and J.B. Van Hollen, in their official capacities,

and their officers, agents, servants, employees and attorneys, and all those

acting in concert with them, are permanently enjoined from enforcing art.

XIII, § 13 of the Wisconsin Constitution and any Wisconsin statutory

provisions limiting marriage to different-sex couples, including those in Wis.

Stat. ch. 765, so as to deny same-sex couples the same rights to marry that are

provided to different-sex couples or to deny same-sex couples lawfully married

in Wisconsin or in other jurisdictions the same rights, protections, obligations

and benefits of marriage under Wisconsin law that are provided to

different-sex couples.

7. Defendant Scott Walker, in his official capacity, and his officers, agents,


are permanently enjoined to use the full extent of their authority under art. V,

§ 4 of the Wisconsin Constitution to ensure that same-sex couples may marry

and that same-sex couples lawfully married in Wisconsin or other jurisdictions

are provided the same state law rights, protections, obligations and benefits of

marriage that are provided to different sex couples; and to direct all

department heads, independent agency heads, or other executive officers

appointed by the Governor under Wis. Stat. ch. 15 and their officers, agents,

servants, employees and attorneys, and all those acting in concert with them

to ensure that same-sex couples may marry in Wisconsin and to provide to

same-sex couples lawfully married in Wisconsin or other jurisdictions all the

state law rights, protections, obligations and benefits of marriage that are

provided to different-sex couples.

Dkt. #126-1.

After defendants objected to the proposed injunction on various grounds, dkt. #128,

plaintiffs submitted an amended proposed injunction, dkt. #132-1, in which they added a

new paragraph related to defendant Van Hollen:

Defendant J.B. Van Hollen, in his official capacity, and his officers, agents,

3



are permanently enjoined from initiating any prosecution of a county clerk

under Wis. Stat. § 765.30(2)(b) for issuing a marriage license to a same-sex

couple, or any prosecution of an officiant under § 765.30(3)(a) for

solemnizing a marriage by a same-sex couple.

In addition, plaintiffs have proposed new language with respect to defendant

Anderson that relates to birth certificates. In paragraph four, plaintiffs ask that Anderson

be required to:

accept for registration, assign a date of acceptance, and index and preserve

original birth certificates, under Wis. Stat. § 69.03(5), for children born to

same-sex couples who were married at the time of the child’s birth so that both

spouses are listed on the birth certificate as parents; and to accept for

registration, assign a date of acceptance, and index and preserve any other

vital records, under Wis. Stat. § 69.03(5), in which a spouse’s name is

recorded so that same-sex spouses are treated the same as different-sex

spouses.

In paragraph five, plaintiffs ask that Anderson be required to:

prescribe, furnish and distribute, under Wis. Stat. § 69.03(8), forms required

for birth certificates that permit married same-sex couples to designate both

spouses as parents; and to prescribe, furnish and distribute, under Wis. Stat.

§ 69.03(8), forms required for any other vital records in which a spouse’s

name is recorded so that same-sex spouses are treated the same as different-sex

spouses.

On June 13, 2014, a hearing was held to resolve disputes about the content of the

injunction and to decide whether to stay the injunction when it issued. Plaintiffs appeared

by John Knight, Gretchen Helfrich, Frank Dickerson and Jim Esseks. Defendants Walker,

Van Hollen and Anderson appeared by Timothy Samuelson, Clayton Kawski and Daniel

Lennington. Defendant McDonell appeared personally and by David Gault. Defendant

Czarnezki appeared by Paul Bargren. Defendant Christensen appeared by Michael

4


Langsdorf.

After considering the written materials submitted by the parties and their arguments

at the hearing, I am adopting some of the language in plaintiffs’ proposed injunction,

modifying some of the language and eliminating some, for the reasons discussed below. In

addition, I conclude that Herbert v. Kitchen, 134 S. Ct. 893 (2014), compels me to stay the

injunction.

A. Content of the Injunction

Rule 65(d) of the Federal Rules of Civil Procedure requires that an injunction “state

its terms specifically” and “describe in reasonable detail . . . the act or acts sought to be

restrained or required.” Paragraphs (1), (3) and (6) of plaintiffs’ proposed injunction do not

meet that standard. In each of these paragraphs, plaintiffs ask that defendants be enjoined

from “enforcing” the unconstitutional laws without identifying any particular acts of possible

enforcement. Vague injunctions that do no more than require parties to “follow the law” are

disfavored. EEOC v. AutoZone, Inc., 707 F.3d 824, 841 (7th Cir. 2013) (“An injunction

that does no more than order a defeated litigant to obey the law raises several concerns.”).

Two related problems with this type of injunction are that it fails to give the defendants

adequate notice of conduct that is required or prohibited and it makes disputes about

potential violations of the injunction that much more difficult to resolve. Marseilles Hydro

Power, LLC v. Marseilles Land & Water Co., 299 F.3d 643, 646 (7th Cir. 2002).

At the hearing, counsel for plaintiffs said that it simply was too difficult to be more

5


specific in these provisions, but if plaintiffs are unable to articulate what they want

defendants to do, then it would be equally problematic for defendants to determine for

themselves what is required and prohibited. Thus, it is in the interest of all parties to make

the requirements in the injunction as clear and precise as possible. As defendants point out,

the Court of Appeals for Seventh Circuit has not hesitated to reject injunctions that do not

comply with the content requirements of Fed. R. Civ. P. 65. Wisconsin Right To Life, Inc.

v. Barland, No. 12-2915, — F.3d — , 2014 WL 1929619, *23 (7th Cir. May 14, 2014)

(ordering district court to amend injunction to comply with specificity requirement in Rule

65 even though none of the parties raised that issue on appeal); Patriot Homes, Inc. v. Forest

River Housing, Inc., 512 F.3d 412, 415 (7th Cir. 2008) (vacating injunction that “require[d]

a lot of guesswork on [defendant’s] part in order to determine if it is engaging in activities

that violate the injunction, since the order itself is a little more than a recitation of the law”);

PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998) (vacating injunction

that “fail[ed] to comply with the requirements of Fed. R. Civ. P. 65 that an injunction be

precise and self-contained, so that a person subject to it who reads it and nothing else has

a sufficiently clear and exact knowledge of the duties it imposes on him that if he violates

it he can be adjudged guilty of criminal contempt”).

I see no problem with the specificity of plaintiffs’ proposed paragraph (2), in which

plaintiffs ask that the county clerks be enjoined from discriminating against same-sex couples

in the context of issuing marriage licenses. However, I have reworded the paragraph slightly

in an attempt to make it clearer. In particular, I have changed plaintiffs’ proposed language

6


that the clerks are “enjoined to issue marriage licenses to couples who, but for their sex,

satisfy all the requirements to marry under Wisconsin law” to say that the clerks are

“enjoined from denying a marriage license to a couple because both applicants for the license

are the same sex.”

In the original versions of paragraphs (4) and (5) of the proposed injunction,

plaintiffs asked for an order requiring the registrar to accept marriage and divorce documents

from same-sex couples and to modify the existing forms to be inclusive of those couples.

Because defendants have raised no specific, substantive objections to these paragraphs and

I see no problems with them, I will include these paragraphs in the injunction.

However, I am not including the additions to these paragraphs related to birth

certificates that plaintiffs included with their reply brief. The new language is not responsive

to any objections that defendants raised and plaintiffs do not explain why they did not

include the language in any of their previous proposals. Even if I overlooked the

untimeliness of the request, an injunction related to birth certificates seems to go beyond the

scope of the issues in this case. Plaintiffs have not developed an argument that an

amendment to procedures related to obtaining a birth certificate is implicit in the

conclusion that a ban of same-sex marriage is unconstitutional. Any disputes that arise

about birth certificates will have to be resolved in another forum.

Defendants objected to including any injunction related to defendants Walker and

Van Hollen on the ground that “[n]either [Walker nor Van Hollen] is a public official with

statutory authority to either validate or invalidate a marriage. Furthermore, neither is vested

7


with statutory authority to take any action in regard to a marriage license under Chapter

765.” Dfts.’ Br., dkt. #128, at 5. In response to this argument, plaintiffs proposed the

additional paragraph related to Van Hollen in which they seek to enjoin him from

prosecuting county clerks for issuing marriage licenses to same-sex couples. They cite media

reports in which Van Hollen is quoted as stating that county clerks who have issued such

licenses may be violating state law. Patrick Marley and Dana Ferguson, “Van Hollen: Clerks

issuing licenses to gay couples could be charged,” Milwaukee Journal Sentinel (June 12,

2014). Although the reports quote Van Hollen as stating that it would be “up to district

attorneys” to decide whether to prosecute the clerks, plaintiffs cite Wis. Stat. § 165.25(1m)

for the proposition that Van Hollen has the authority to prosecute the clerks as well.

Regardless whether the attorney general has authority to initiate prosecutions, this

seems to be another issue that goes beyond the scope of the June 6 order. In particular, that

order does not address the question whether county clerks were entitled under state law to

issue marriage licenses to same-sex couples in the absence of an injunction. Accordingly, I

decline to issue an injunction against defendant Van Hollen because plaintiffs have not

identified any specific actions that he may be required to take to enforce the June 6 order.

In what was originally paragraph (7) in the proposed injunction, plaintiffs ask for an

order requiring defendant Walker and his agents “to use the full extent of their authority

under art. V, § 4 of the Wisconsin Constitution” to enforce the court’s ruling. Again,

plaintiffs do not identify in their proposed injunction any specific actions they want Walker

or any of his agents to take. In their brief, plaintiffs say that they want Walker to give

8


“direction to officers in the executive branch to provide recognition (and its attendant state

law benefits, obligation, protections, and rights) to married same-sex couples.” Plts’ Reply

Br., dkt. #132, at 8. This is a little closer to mark, but it is still unclear what plaintiffs mean

by the phrase “provide recognition.” Because the key issue in this case is that plaintiffs are

entitled to be treated the same as any opposite-sex couple, I will issue the following

injunction with respect to defendant Walker:

Defendant Scott Walker, in his official capacity, is permanently enjoined to

direct all department heads, independent agency heads, or other executive

officers appointed by the Governor under Wis. Stat. ch. 15 and their officers,

agents, servants, employees and attorneys, and all those acting in concert with

them, to treat same-sex couples the same as different sex couples in the

context of processing a marriage license or determining the rights, protections,

obligations or benefits of marriage.

Defendants also raise two, more general objections to plaintiffs’ proposed injunction.

First, defendants object to plaintiffs’ request to enjoin not only defendants themselves, but

also defendants’ “officers, agents, servants, employees and attorneys, and all those acting in

concert with them.” I am overruling this objection because Rule 65 itself says that “the

parties' officers, agents, servants, employees, and attorneys” and “other persons who are in

active concert or participation with” the parties’ are bound by the injunction. Fed. R. Civ.

P. 65(d)(2). “The purpose of the rule is to ensure that defendants may not nullify a decree

by carrying out prohibited acts through aiders and abettors, although they were not parties

to the original proceeding.” Blockowicz v. Williams, 630 F.3d 563, 566-70 (7th Cir. 2010)

(internal quotations omitted).

Although I am sympathetic to defendants’ concern about the lack of specificity, I also

9


understand that it would be impossible to list every individual who might act as an agent for

one or more of the defendants. In lieu of limiting an injunction to just the defendants, the

court of appeals has stated that this type of concern about scope can be addressed after the

fact if a dispute arises. H-D Michigan, LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827,

842 (7th Cir. 2012) (“Should any non-party believe that it has been enjoined improperly,

it is free to seek a modification or clarification from the district court.”).

Finally, defendants say that plaintiffs’ proposed injunction “effectively requires a re-

write of Wisconsin Statutes.” Dfts.’ Br., dkt. #128, at 11. I am overruling this objection

as well. The proposed injunction does not require the “re-writing” of any statutes. Rather,

it requires only equal treatment of same-sex couples and opposite-sex couples. If I accepted

defendants’ argument, it would be impossible for individuals subjected to constitutional

violations to obtain relief when the violation was caused by multiple laws.

B. Motion to Stay

This leaves the question whether the injunction should be stayed pending appeal

under Fed. R. Civ. P. 62(c). Generally, the answer to that question is determined by

weighing four factors: (1) whether the defendant has made a strong showing that it is likely

to succeed on appeal; (2) whether the defendant will be irreparably injured absent a stay; (3)

whether issuance of the stay will substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776

(1987).

10


If I were considering these factors as a matter of a first impression, I would be inclined

to agree with plaintiffs that defendants have not shown that they are entitled to a stay.

However, I cannot ignore the Supreme Court’s order in Herbert v. Kitchen, 134 S. Ct. 893

(2014), in which the Court stayed a district court’s order enjoining state officials in Utah

from enforcing its ban on same-sex marriage. It is impossible to know the Court’s reasoning

for issuing the stay because the Court did not accompany the order with an opinion, but,

since Herbert, every statewide order enjoining the enforcement of a ban on same-sex

marriage has been stayed, either by the district court or the court of appeals, at least when

the state requested a stay. In following Herbert, other courts have stated that, despite the

lack of any reasoning in Herbert, they did not see any grounds for distinguishing the

Supreme Court’s order. E.g., DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014).

Plaintiffs offer two grounds for distinguishing Herbert: (1) since Herbert, each of the

more than a dozen district courts considering bans on same-sex marriage has concluded that

the ban is unconstitutional; and (2) same-sex marriages recognized under state law in other

states since Herbert have not caused any harm to the state. However, even if I accept both

of these arguments, it does not change the fact that the Supreme Court’s order in Herbert

is still in place. Until the Supreme Court provides additional guidance on this issue, the

unanimity of federal districts is not a dispositive factor.

It is true that the Supreme Court declined to issue a stay in a more recent case in

which a district court in Oregon enjoined enforcement of that state’s ban on same-sex

marriage. National Organization for Marriage v. Geiger, 13A1173, 2014 WL 2514491

11


(U.S. June 4, 2014). However, that order is not instructive because the district court’s

injunction was not opposed by the state; rather, a nonparty had requested the stay. Thus,

I do not interpret Geiger as undermining the Court’s order in Herbert.

After seeing the expressions of joy on the faces of so many newly wedded couples

featured in media reports, I find it difficult to impose a stay on the event that is responsible

for eliciting that emotion, even if the stay is only temporary. Same-sex couples have waited

many years to receive equal treatment under the law, so it is understandable that they do not

want to wait any longer. However, a federal district court is required to follow the guidance

provided by the Supreme Court. Because I see no way to distinguish this case from Herbert,

I conclude that I must stay any injunctive relief pending appeal.

The remaining question is whether the stay should include all relief, including the

declaration, rather than just the injunction. Although I remain dubious that it is necessary

to “stay” declaratory relief, I understand that there has been much confusion among county

clerks regarding the legal effect of the declaration. To avoid further confusion among the

clerks, I will issue a stay of all relief.

ORDER

Pursuant to Fed. R. Civ. P. 65(d), and for the reasons set forth in this court's June 6,

2014 Opinion and Order, dkt. #118, IT IS ORDERED that

1. Defendants Wendy Christensen, Joseph Czarnezki and Scott McDonell, in their

official capacities, and their officers, agents, servants, employees and attorneys, and all those

12


acting in concert with them are permanently enjoined from denying a marriage license to a

couple because both applicants for the license are the same sex.


servants, employees and attorneys, and all those acting in concert with them, are

permanently enjoined to accept for registration, assign a date of acceptance and index and

preserve original marriage documents and original divorce reports for couples of the same

sex on the same terms as for couples of different sexes under Wis. Stat. § 69.03(5).


servants, employees and attorneys, and all those acting in concert with them, are

permanently enjoined to prescribe, furnish and distribute, under Wis. Stat. § 69.03(8),

forms required for marriages under Wis. Stat. ch. 69 and Wis. Stat. § 765.20 that permit

couples of the same sex to marry on the same terms as couples of different sexes.

4. Defendant Scott Walker, in his official capacity, is permanently enjoined to direct

all department heads, independent agency heads, or other executive officers appointed by

the Governor under Wis. Stat. ch. 15 and their officers, agents, servants, employees and

attorneys, and all those acting in concert with them, to treat same-sex couples the same as

different sex couples in the context of processing a marriage license or determining the rights,

protections, obligations or benefits of marriage.

FURTHER IT IS ORDERED that defendants’ motion to stay all relief in this case,

dkt. #114, is GRANTED. The injunction and the declaration shall take effect after the

conclusion of any appeals or after the expiration of the deadline for filing an appeal,

13


whichever is later.

The clerk of court is directed to enter judgment in favor of plaintiffs and close this

case.

Entered this 13th day of June, 2014.

BY THE COURT:

/s/

BARBARA B. CRABB

District Judge

14


NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

No. 14-5297

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

VALERIA TANCO, et al.,

Plaintiff-Appellees,

v.

WILLIAM HASLAM, et al.,

Defendants-Appellants.

ORDER

BEFORE: GUY and CLAY, Circuit Judges; BERTLESMAN, District Judge.

PER CURIAM. This matter is before the Court on Defendants’ motion to stay the district

court’s order preliminarily enjoining the enforcement of Tennessee Code Annotated § 36-3-113

and Article XI, § 18 of the Tennessee Constitution, which prohibit the recognition in Tennessee

of marriages legally consummated by same-sex couples in other states, against the six named

plaintiffs in this action. The district court denied Defendants’ previous motion for a stay pending

the outcome of their appeal, finding that “all four factors weigh against a stay and in favor of

continuing enforcement of the Preliminary Injunction.” Jesty v. Haslam, No. 3:13-CV-01159,

2014 WL 1117069, at *5 (M.D. Tenn. Mar. 20, 2014). For the reasons that follow, we find that a

stay of the district court’s order pending consideration of this matter by a merits panel of this

Court is warranted, and that this case should be assigned to a merits panel without delay.

The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky,

sitting by designation.

Case: 14-5297 Document: 29-1 Filed: 04/25/2014 Page: 1 (1 of 3)


Administrator

New Stamp

No. 14-5297

2

In deciding whether to issue a stay, the Court balances four factors: 1) whether the

moving party “has a strong or substantial likelihood of success on the merits”; (2) whether the

moving party “will suffer irreparable harm” if the order is not stayed; (3) whether issuing a stay

“will substantially injure other interested parties”; and (4) “where the public interest lies.” Baker

v. Adams Cnty./Ohio Valley School Bd., 310 F.3d 927, 928 (6th Cir. 2002). 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. As Judge Black observed in granting a stay of injunction pending appeal for

Henry v. Himes, No. 1:14-CV-129, 2014 WL 1512541, at *1 (S.D. Ohio Apr. 16, 2014):

[R]ecognition of same-sex marriages is a hotly contested issue in

the contemporary legal landscape, and, if [the state’s] appeal is

ultimately successful, the absence of a stay as to [the district

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 granting of a stay. Premature celebration and confusion

do not serve anyone’s best interests. The federal appeals courts

need to rule, as does the United States Supreme Court.

In the present case, as in Henry, we find that the public interest requires granting a stay

and transferring this case to a merits panel for expedited consideration––so that the merits panel

can assess whether a stay should remain in effect, and address the substantive issues in this case.

Defendants’ motion to stay the district court’s order is GRANTED, and this case shall be

assigned to a merits panel without delay.

IT IS SO ORDERED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk


rogersss

Deb Hunt signature stamp

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

cc: Mr. Keith Throckmorton Enclosure


UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 -‐‑ 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the ClerkPhone: (312) 435-‐‑5850www.ca7.uscourts.gov

ORDER

June 27, 2014

Before

RICHARD A. POSNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No.: 14-‐‑2386

MARILYN RAE BASKIN, et al.,Plaintiffs -‐‑ Appellees

v.

PENNY BOGAN, et al.,Defendants -‐‑ Appellants

No.: 14-‐‑2387

MIDORI FUJII, et al., Plaintiffs -‐‑ Appellees

v.

COMMISSIONER OF THE INDIANA STATE DEPARTMENT OFREVENUE, in his official capacity, et al., Defendants -‐‑ Appellants

No.: 14-‐‑2388

PAMELA LEE, et al.,Plaintiffs -‐‑ Appellees

v.

BRIAN ABBOTT, et al.,Defendants -‐‑ Appellants

!aaassseee::: 111444---222333888666 DDDooocccuuummmeeennnttt::: 111222 FFFiiillleeeddd::: 000666///222777///222000111444 PPPaaagggeeesss::: 222


Nos. 14-‐‑2386, et al.

Originating Case Information:

District Court No: 1:14-‐‑cv-‐‑00355-‐‑RLY-‐‑TABSouthern District of Indiana, Indianapolis DivisionDistrict Judge Richard L. Young


District Court No: 1:14-‐‑cv-‐‑00404-‐‑RLY-‐‑TABSouthern District of Indiana, Indianapolis DivisionDistrict Judge Richard L. Young


District Court No: 1:14-‐‑cv-‐‑00406-‐‑RLY-‐‑MJDSouthern District of Indiana, Indianapolis DivisionDistrict Judge Richard L. Young

Upon consideration of the EMERGENCY MOTION FOR STAY PENDINGAPPEAL, filed on June 27, 2014, by counsel for the appellants,

IT IS ORDERED that the motion is GRANTED. The district court'ʹs order dated6/25/14 is STAYED pending resolution of this appeal.

form name: c7_Order_3J(form ID: 177)

!aaassseee::: 111444---222333888666 DDDooocccuuummmeeennnttt::: 111222 FFFiiillleeeddd::: 000666///222777///222000111444 PPPaaagggeeesss::: 222

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