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 GENERALS MOTION TO CONTINUE OPENING
APPELLATE BRIEF DEADLINE


Plaintiffs-Appellees, by and through their counsel, Mari Newman, David A.
Lane, Darren M. Jankord, and Danielle C. Jefferis of KILLMER, LANE & NEWMAN,
LLP, hereby submit their Response in Opposition to Attorney Generals Motion to
Continue Opening Appellate Brief Deadline.

Appellate Case: 14-1283 Document: 01019311284 Date Filed: 09/16/2014 Page: 1
Docket Reference 10206857
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1. As with its motion to hold these proceedings in abeyance, the
Attorney General fails to cite any authority to support its requested continuance to
file its opening brief in this matter.
2. The Attorney General is, effectively, seeking an indeterminate
extension to file its Opening Brief in its own appeal. According to the Federal
Rules of Appellate Practice and the Tenth Circuits Rules, extensions of time to
file briefs are disfavored. 10th

Cir. R. 27.4(A).
3. The Attorney General has simply not satisfied the requirements
needed for a motion for extension. See 10th

Cir. R. 27.4(C)2.
1

4. Further, the Attorney General has set out on a campaign to uphold and
defend Colorados same-sex marriage ban and similar same-sex marriage bans
around the country. Accordingly, the Attorney General has already explored,
litigated, and defended these issues repeatedly. It would be far from burdensome
for him to complete his opening brief in a timely manner.
5. Additionally, the Attorney General brought this appeal. If he was not
prepared to further defend Colorados unconstitutional same-sex marriage ban, he
should not have appealed the district courts opinion in this case.

1
As undersigned counsel communicated with Appellants, we are amenable to consenting
to brief extensions that are necessary, from time to time, when attorneys are burdened by
exceptional circumstances that make it impossible to meet court-imposed deadlines.
Here, however, Appellants are not seeking a brief extension of that nature, but rather are
seeking an indefinite continuance in order to allow the continued violation of Plaintiff-
Appellees fundamental constitutional rights.
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6. The fact that the United States Supreme Court may grant certiorari on
a similar case challenging the constitutionality of other states same-sex marriage
bans is no grounds for a continuance and would leave Plaintiff-Appellees without
recourse or ability to pursue their claims based solely on a chance that a Supreme
Court ruling may affect their claims.
7. The Attorney General has failed to demonstrate any real harm or
burden in meeting the established deadline to file its opening brief. Conversely,
and contrary to its assertion that Plaintiff-Appellees will not be prejudiced by the
requested continuance, any delay in this matter, whether based on the potential for
a Supreme Court ruling or otherwise, harms Plaintiff-Appellees.
8. Every day that Plaintiffs-Appellees are not allowed to legally marry in
Colorado is a day that they are denied their fundamental right to marriage. See
Kitchen v. Herbert, No. 13-4178, 2014 U.S. App. LEXIS 11935, at *34 (10th Cir.
June 25, 2014) (citing Griswold v. Connecticut, 381 U.S. 479, 486 (1965);
Maynard v. Hill, 125 U.S. 190, 205 (1888); Meyer v. Nebraska, 262 U.S. 390, 399
(1923)); Zablocki v. Redhail, 434 U.S. 374, 384 (1978); Loving v. Virginia, 388
U.S. 1, 12 (1967).
9. Not only is a fundamental constitutional right being violated here, but
the continuing harm to Plaintiffs-Appellees resulting from the deprivation of that
right is very real and tangible. Marriage is not just a fundamental right; it carries
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with it the otherwise unavailable legal entitlement to over 1,100 federal benefits
implicated by marital status. United States v. Windsor, 133 S. Ct. 2675, 2683
(2013) (explaining there are over 1,000 federal laws in which marital or spousal
status is addressed as a matter of federal law); see also, e.g., 42 U.S.C.
416(h)(1)(A)(i) (entitling spousal to social security benefits); 26 U.S.C. 106
(taxing persons for health benefits provided by employers to their same-sex
partners, significantly raising cost of family healthcare); 17 U.S.C. 101 (defining
widow and widower under Copyright Act); 38 U.S.C. 103(c) (entitling
spouses to veterans benefits); 29 C.F.R. 825.122(b) (FMLA right to take time off
to care for sick spouse).
10. Even more important is the unique societal recognition granted only to
the ancient institution of marriage. Colorados same-sex marriage ban tells those
couples, and the entire world, that their otherwise valid [relationships] are
unworthy of [state] recognition. This places same-sex couples in an unstable
position of being in a second-tier [relationship]. The differentiation demeans the
couple, whose moral and sexual choices the Constitution protects. Windsor, 133
S. Ct. at 2694.
11. The continuing harms to Plaintiffs-Appellees caused by the Attorney
Generals appeal and repeated attempts to delay or forestall this litigation is very
real. It is well-settled that the violation of constitutional rights, even for short
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periods, gives rise to an irreparable injury. Planned Parenthood Federation of
Am. v. Bowen, 680 F.Supp. 1465, 1473 (D. Colo. 1988).
12. In the face of this clear deprivation of Plaintiffs-Appellees
constitutional right to marry, the words of the U.S. Supreme Court a half-century
ago ring just as true today, and counsel overwhelmingly against delaying this
matter any further:
[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).
13. Further, 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 the generally operative and here clearly controlling
principle that constitutional rights are to be promptly vindicated. Id. at 539
(emphasis added).
14. Here, likewise, there is no cause whatsoever to depart from the same
controlling principle: Plaintiffs-Appellees fundamental right must be promptly
vindicated, and the clear violation of that right caused by Colorados same-sex
marriage ban must be promptly rectified.
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15. Just as Plaintiffs-Appellees have opposed the stay and the motion to
hold the appeal in abeyance, they oppose the Attorney Generals motion for a
continuance and any and all efforts to further delay this appeal, because it impinges
directly on Plaintiff-Appellees and all Coloradans fundamental right to marry
the person of their choice.
CONCLUSION

For the foregoing reasons, Plaintiffs-Appellees respectfully request that this
Court deny the Attorney Generals Motion to Continue Opening Appellate Brief
Deadline.
DATED this 16th day of September, 2014.

Respectfully submitted,

s/ Mari Newman
___________________________
Mari Newman
David A. Lane
Darren M. Jankord
Danielle C. Jefferis
KILLMER, LANE & NEWMAN, LLP
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000

Counsel for Plaintiffs-Appellees
Appellate Case: 14-1283 Document: 01019311284 Date Filed: 09/16/2014 Page: 6
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CERTIFICATE OF SERVICE

I hereby certify that on September 16, 2014, I electronically filed the
foregoing PLAINTIFFS-APPELLEES RESPONSE IN OPPOSITION TO
ATTORNEY GENERALS MOTION FOR STAY PENDING APPEAL with
the Clerk of the Court using the CM/ECF system, which will send notification of
such filing to the following:

Counsel for John W. Hickenlooper:

Jack Finlaw
Chief Legal Counsel
Benjamin Figa
Deputy Legal Counsel
Office of Governor John W. Hickenlooper
121 State Capitol
Denver, Colorado 80203
(303) 866-6375
Jack.Finlaw@state.co.us
ben.figa@state.co.us

Counsel for John Suthers:

Michael Francisco
Assistant Solicitor General
Colorado Department of Law
Office of the Attorney General
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, Colorado 80203
(720) 508-6551
michael.francisco@state.co.us

Kathryn A. Starnella
Assistant Attorney General
Colorado Department of Law
Office of the Attorney General
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 6th Floor
Denver, Colorado 80203
Appellate Case: 14-1283 Document: 01019311284 Date Filed: 09/16/2014 Page: 7
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Telephone: (720) 508-6176
Fax: (720) 508-6041
kathryn.starnella@state.co.us

Counsel for Jefferson County Clerk and Recorder:

Ellen Wakeman
Jefferson County Attorney
Writer Mott
100 Jefferson County Pkwy., Ste. 5500
Admin and Courts Facility
Golden, CO 80419
303-271-8900
ewakeman@jeffco.us
wmott@jeffco.us

KILLMER, LANE & NEWMAN, LLP

s/ Jesse Askeland
___________________________
Jesse Askeland



















Appellate Case: 14-1283 Document: 01019311284 Date Filed: 09/16/2014 Page: 8
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CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing:

(1) all required privacy redactions have been made;

(2) if required to file additional hard copies, that the ECF submission is an
exact copy of those documents;

(3) The digital submissions have been scanned for viruses with the most
recent version of a commercial virus scanning program, Malwarebytes Anti-
Malware for Windows, Version 2.0.2.1012, database version v2014.09.16.09
updated September 16, 2014 and according to the program are free of
viruses.

KILLMER, LANE & NEWMAN, LLP

s/ Jesse Askeland
__________________________
Jesse Askeland



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