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 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
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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.
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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
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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
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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)).
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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
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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.



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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
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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
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Denver, Colorado 80203
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

















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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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