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 HOLD APPEAL IN ABEYANCE PENDING THE U.S. SUPREME COURTS DECISIONS IN KI TCHEN v. HERBERT AND BI SHOP v. SMI TH
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 Appellate Case: 14-1283 Document: 01019311281 Date Filed: 09/16/2014 Page: 1 Docket Reference 10206856 2
Hold Appeal in Abeyance Pending the U.S. Supreme Courts Decisions in Kitchen v. Herbert and Bishop v. Smith. 1. Without citing any authority to do so, the Attorney General seeks to unnecessarily delay further action on its own appeal based on the potential for a ruling from the United States Supreme Court in other cases, in other jurisdictions, with different parties, and with a disparate procedural posture than the present matter. 2. Plaintiffs-Appellees vehemently oppose any effort to hold in abeyance these proceedings, which impinge directly on their fundamental constitutional right to marry the person of their choice. 3. The district court in this matter held in no uncertain terms that Colorados same-sex marriage ban impermissibly infringes on Plaintiffs- Appellees fundamental right to marry, recognizing: [I]t is Plaintiffs who have shown a likelihood of success on the merits; it is Plaintiffs who suffer irreparable harm if Colorados unconstitutional same-sex marriage ban is not enjoined; and it is Plaintiffs to whom the balance of harm and the public interest favor. Burns, et al. v. Hickenlooper, et al., No. 14-cv-1817, 2014 U.S. Dist. LEXIS 100894, at *10 (D. Colo. July 23, 2014) (emphasis in original). Indeed, the Attorney General conceded this point. Appellate Case: 14-1283 Document: 01019311281 Date Filed: 09/16/2014 Page: 2 3
4. 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). 5. 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). 6. 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. 7. Contrary to the Attorney Generals assertions, there is simply no cause to halt these proceedings, which affect Plaintiffs-Appellees and all Coloradans constitutional right to marry, especially considering that there is no Appellate Case: 14-1283 Document: 01019311281 Date Filed: 09/16/2014 Page: 3 4
guarantee that the U.S. Supreme Court will grant certiorari for any of the cases that are currently being litigated regarding other states same-sex marriage bans. 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 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 Appellate Case: 14-1283 Document: 01019311281 Date Filed: 09/16/2014 Page: 4 5
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. To be sure, Colorados second-tier civil unions are a lesser, separate, and wholly unequal substitute for legal marriage. A Colorado state court agreed, holding that confining same-sex couples to civil unions is further evidence of discrimination against same-sex couples and does not ameliorate the discriminatory effect of the Marriage Bans. Brinkman v. Long, No. 13CV32572 at 42 (Adams Cnty. Dist. Ct., July 9, 2014). 12. As the district court in this matter recognized, it is always in the public interest to prevent the violation of a partys constitutional rights. Burns, 2014 U.S. Dist. LEXIS at *8 (quoting Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1147 (10th Cir. 2013)). Appellate Case: 14-1283 Document: 01019311281 Date Filed: 09/16/2014 Page: 5 6
13. This appeal, which is brought by the Attorney General, needs prompt resolution and should not be placed in a holding pattern based solely on a chance the U.S. Supreme Court will hear and decide cases based on other states same-sex marriage bans. 14. Notably the only case the Attorney General relies on to support his position that an abeyance is proper, was in a vastly distinct posture than this case. In Armstrong v. Sebelius, 531 Fed. Appx 938 (10th Cir. 2013), not only was certiorari already granted in the Hobby Lobby case before this Court held the appeal in abeyance, the U.S. Supreme Court had already heard oral arguments. Accordingly, this Court was able to hold the Armstrong appeal in abeyance knowing with certainty that the U.S. Supreme Court would issue a ruling that would necessarily affect the outcome in the Armstrong case. 15. The same is not true here. While other parties are currently seeking certiorari on other states same-sex marriage bans, none has been granted. There is no guarantee the U.S. Supreme Court will hear any of these cases. Further, it is not yet clear whether the outcomes will necessarily affect this present matter. 16. Most critically, the contested law in Armstrong had not yet gone into effect so the Armstrong plaintiffs were not yet impacted by the challenged law; in contrast, an abeyance in this case would have the practical effect of continuing the enforcement of a decidedly discriminatory law Appellate Case: 14-1283 Document: 01019311281 Date Filed: 09/16/2014 Page: 6 7
17. If the Attorney General did not want this matter to proceed until resolution of other cases that might come before the U.S. Supreme Court, he should not have appealed the district courts decision. However, the Attorney General chose to bring this matter out of the district court to this court and is now seeking to unnecessarily and prematurely halt any further action on the case, causing further harm to the Plaintiffs and depriving them of their day in court and the recognition and protection of their fundamental constitutional right to marry the person of their choice. 18. The Attorney General has presented no good reason to delay his own appeal and there is a significant public interest in prompt resolution to this matter. To hold the Attorney Generals appeal in abeyance would be an injustice to the Plaintiffs-Appellees and deprive them of their day in Court and their 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 Hold Appeal in Abeyance Pending the U.S. Supreme Courts Decisions in Kitchen v. Herbert and Bishop v. Smith. This appeal should proceed. DATED this 16th day of September, 2014.
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: 01019311281 Date Filed: 09/16/2014 Page: 8 9
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 Appellate Case: 14-1283 Document: 01019311281 Date Filed: 09/16/2014 Page: 9 10
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
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.