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14-1283 #96753

14-1283 #96753

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Published by Equality Case Files
Reference Number [10196753] Plaintiffs' Opposition to stay pending appeal
Reference Number [10196753] Plaintiffs' Opposition to stay pending appeal

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Published by: Equality Case Files on Aug 07, 2014
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UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
CATHERINE BURNS, et al., Plaintiffs-Appellees, v. JOHN SUTHERS, in his official capacity as Attorney General of No. 14-1283 Colorado; Defendant-Appellant, and JOHN W. HICKENLOOPER, JR., in his official capacity as Governor of Colorado; and PAM ANDERSON, in her official capacity as Clerk and Recorder for Jefferson County, Defendants.
PLAINTIFFS-
APPELLEES’
RESPONSE IN OPPOSITION TO ATTORNEY
GENERAL’S
MOTION FOR STAY PENDING APPEAL
Plaintiffs-Appellees, by and through their counsel, Mari Newman, David A. Lane, Darren M. Jankord, and Danielle C. Jefferis of
ILLMER 
,
 
L
ANE
&
 
 N
EWMAN
,
 
LLP, hereby submit their Response in Opposition
to Attorney General’s Motion
for Stay Pending Appeal.
Appellate Case: 14-1283 Document: 01019291316 Date Filed: 08/07/2014 Page: 1
 
2
INTRODUCTION
“An unjust law is no law at all.” Augustine of Hippo,
On Free Choice of the Will 
, Book 1, § 5 (354-430 C.E.);
 see also
Martin Luther King, Jr.,
 Letter from a  Birmingham Jail 
 (1963). On June 25, 2014, this Court unequivocally held: The Fourteenth Amendment protects the fundamental right to marry,
establish a family, raise children, and enjoy the full protection of a state’s
marital laws. A state may not deny the issuance of marriage licenses to two  persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.
 Kitchen v. Herbert 
, No. 13-4178, 2014 U.S. App. LEXIS 11935, at *3-4 (10th Cir. June 25, 2014). The following week, Plaintiffs-Appellees filed this action in the United States District Court for the District of Colorado seeking a preliminary injunction to enjoin the State of Colorado from enforcing its own discriminatory, unconstitutional ban on same-sex marriage. From the outset, Defendants, including Defendant-Appellant Attor 
ney General John Suthers, conceded Plaintiffs’ efforts
to enjoin the laws and expressly stipulated to the issuance of the preliminary injunction.
See
Defendants’ Motion to Stay Proceedings and Non
-Opposition to Proposed Preliminary Injunction at 1-2,
 Burns, et al. v. Hickenlooper, et al.
, No. 14-cv-1817, 2014 U.S. Dist. LEXIS 100894 (D. Colo. July 23, 2014). At no point, even now, has the Attorney General articulated any substantive argument to oppose Plaintiffs-Appellees
’ efforts to enjoin and, ultimately,
 strike down,
Colorado’s unconstitutional same
-sex marriage ban.
Appellate Case: 14-1283 Document: 01019291316 Date Filed: 08/07/2014 Page: 2
 
3 The only issue Defendants raised
 — 
 and the only issue contested among the  parties
 — 
 was the propriety of a stay of the proceedings. In the district court, the Attorney General unsuccessfully
sought a stay “until all final appeals in the
 Kitchen
 
case are resolved.” Def 
s
’ Mtn.
 at 2. In this Court, the Attorney General again seeks a stay pending appeal, which he ties inextricably to the resolution of
 Kitchen
. Thus, in each iteration of his efforts to impose a stay in these proceedings, the Attorney General sought to do so to await the final decision in
another case
,
 
in
another jurisdiction
,
 
with
different parties
,
 
and with a
disparate procedural  posture
 than the present matter. As they did in the district court, Plaintiffs-Appellees vehemently oppose any
effort to stay the injunction of Colorado’s unconstitutional ban on same
-sex marriage. The words written by the United States Supreme Court a half-century ago ring just as true today: [A]ny deprivation of constitutional rights calls for prompt rectification. The rights here asserted are, like all such rights,
 present
rights; they are not merely hopes to some
 future
enjoyment of some formalistic constitutional  promise. The basic guarantees of our Constitution are warrants for the here and now and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled.
Watson v. Memphis
, 373 U.S. 526, 532-33 (1963) (emphasis in original). Rejecting government efforts to delay enforcement of rights conferred by the Fourteenth Amendment, the
Watson
Court held, “there is no cause whatsoever to depart from
Appellate Case: 14-1283 Document: 01019291316 Date Filed: 08/07/2014 Page: 3

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