IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________
TIMOTHY B. BOSTIC, TONY C. LONDON, CAROL SCHALL, and MARY TOWNLEY,
PlaintiffsAppellees,
and
CHRISTY BERGHOFF, JOANNE HARRIS, JESSICA DUFF, AND VICTORIA KIDD, on behalf of themselves and all others similarly situated,
Intervenors-Appellees,
v.
GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Norfolk City Circuit Court, and JANET M. RAINEY, in her official capacity as State Registrar of Vital Records,
DefendantsAppellants,
and
MICHLE B. MCQUIGG, in her official capacity as the Clerk of Prince William County Circuit Court,
On Appeal from the United States District Court for the Eastern District of Virginia, Civ. No. 2:13-395 _________________________
PLAINTIFFS-APPELLEES RESPONSE IN OPPOSITION TO INTERVENOR-APPELLANTS MOTION TO STAY THE MANDATE Appeal: 14-1167 Doc: 241 Filed: 08/04/2014 Pg: 1 of 9
David Boies BOIES, SCHILLER & FLEXNER LLP 333 Main St. Armonk, NY 10504 (914) 749-8200
Robert B. Silver Joshua I. Schiller BOIES, SCHILLER & FLEXNER LLP 575 Lexington Avenue New York, NY 10022 (212) 446-2300
William A. Isaacson BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, N.W. Washington, D.C. 20015 (202) 237-2727
Jeremy M. Goldman BOIES, SCHILLER & FLEXNER LLP 1999 Harrison Street, Suite 900 Oakland, CA 94612 (510) 874-1000
Counsel for Plaintiffs-Appellees Theodore B. Olson Matthew D. McGill Amir C. Tayrani Chantale Fiebig GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8668
Theodore J. Boutrous, Jr. Joshua S. Lipshutz GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7000
Thomas B. Shuttleworth Robert E. Ruloff Charles B. Lustig Andrew M. Hendrick Erik C. Porcaro SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK, P.C. 4525 South Blvd., Suite 300 Virginia Beach, VA 23452 (757) 671-6000
Counsel for Plaintiffs-Appellees
Appeal: 14-1167 Doc: 241 Filed: 08/04/2014 Pg: 2 of 9 1 Plaintiffs-Appellees Timothy Bostic, Tony London, Carol Schall, and Mary Townley oppose the motion to stay the mandate by Intervenor-Appellant Michle McQuigg (Clerk McQuigg). A stay of the mandate would be inappropriate because, even assuming the Supreme Court is likely to grant the petition for a writ of certiorari, Clerk McQuigg cannot demonstrate that she is likely to prevail on the merits, that she (or the Commonwealth) will be irreparably harmed if the stay does not issue, or that the balance of equities, including the public interest, favors staying enforcement of the district courts injunction against Virginias unconstitutional ban on marriage between individuals of the same sex. See Fed. R. App. P. 41(d)(2)(A) (to obtain stay of mandate, a movant must show that the certiorari petition would present a substantial question and that there is good cause for a stay); see also Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers); Senne v. Village of Palatine, Ill., 695 F.3d 617, 619 (7th Cir. 2012) (Ripple, J., in chambers). 1. This Court held that Virginias laws prohibiting marriage between individuals of the same sex and legal recognition of marriages between individuals of the same sex entered into in other jurisdictions (see Va. Const. Art. I, 15-A; Va. Code 20-45.2, 20-45.3 (Virginias Marriage Prohibition)) violate the fundamental right of gay and lesbian individuals to marry the partner of their choosing. See Bostic v. Schaefer, 2014 WL 3702493, at *1 (4th Cir. July 28, Appeal: 14-1167 Doc: 241 Filed: 08/04/2014 Pg: 3 of 9 2 2014). In reaching this conclusion, the Court emphasized the profound importance of marriage to individuals and society generally, recognizing that [c]ivil marriage is one of the cornerstones of life, allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, and is an intensely personal decision that alters the course of an individuals life. Id. at *17. The Court further explained that this fundamental right is not [and cannot be] circumscribed based on the characteristics of the individuals seeking to exercise the right. Id. at *9. This Courts understanding of marriage is consistent with the Supreme Courts marriage jurisprudence, which has repeatedly recognized a broad right to marry that does not turn on the particular characteristics of the individuals seeking to marry. See, e.g., Turner v. Safley, 482 U.S. 78, 95 (1987); Zablocki v. Redhail, 434 U.S. 374, 383 (1978); Loving v. Virginia, 388 U.S. 1, 12 (1967). It is also consistent with the decisions of no fewer than 23 federal courtsevery federal court to consider a same-sex marriage ban since the Supreme Courts decision in United States v. Windsor, 133 S. Ct. 2675 (2013). 1 Given this decisive weight of authority, Clerk McQuigg simply cannot establish a likelihood of success on the merits.
1 See Opposition to Motion to Stay the Mandate by Harris Intervenors- Appellees at 34 (Aug. 1, 2014) (Dkt. No. 239) (collecting cases). Appeal: 14-1167 Doc: 241 Filed: 08/04/2014 Pg: 4 of 9 3 2. Nor can Clerk McQuigg demonstrate that the balance of equities favors the issuance of a stay or that she (or the Commonwealth) will be irreparably harmed if a stay does not issue. To the contrary, the balance of equities and the public interest strongly favor immediate enforcement of the district courts injunction. The right to marry is fundamental, and thus Virginias Marriage Prohibition irreparably harms Plaintiffs-Appelleesand all gay men and lesbians in the Commonwealtheach day that it remains in force. See Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978). Indeed, as this Court emphasized, [d]enying same-sex couples [the right to marry] prohibits them from participating fully in our society and is precisely the type of segregation that the Fourteenth Amendment cannot countenance. Bostic, 2014 WL 3702493, at *16. Once declared unconstitutional, such a deprivation of a fundamental right should not be permitted to remain in force, even during the pendency of an appeal. Moreover, permitting immediate enforcement of the district courts injunction would not result in any irreparable injury to Clerk McQuigg, the Commonwealth, or the public interest. As this Court explained, the peoples will is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry, and neither Virginias federalism-based Appeal: 14-1167 Doc: 241 Filed: 08/04/2014 Pg: 5 of 9 4 interest in defining marriage nor [a] respect for the democratic process that codified that definition can excuse the Virginia Marriage Laws infringement of the right to marry. Bostic, 2014 WL 3702493, at *12. Likewise, in the unlikely event of reversal by the Supreme Court, any purported uncertainty about the validity of same-sex marriages performed before that decision could be addressed on remand. In any event, that risk of uncertainty falls on those same-sex couples who choose to marry before the Supreme Court has ruled, rather than on Clerk McQuigg or the Commonwealth. 3. Finally, the fact that other courts have reached a different conclusion about the propriety of a stay in other challenges to same-sex marriage bans does not compel a stay of the mandate in these proceedings. See McQuigg Motion for Stay of Mandate at 34 (Dkt. No. 238) (Aug. 1, 2014). Since the Supreme Court issued its stay in Herbert v. Kitchen, 134 S. Ct. 893 (2014), on January 6, 2014, it has become even more clear that Clerk McQuigg and other litigants defending same-sex marriage prohibitions have no reasonable likelihood of success on the merits: two federal courts of appeals and eleven federal district courts have invalidated state bans on same-sex marriage after that stay ruling, without a single decision to the contrary. See Opposition to Motion to Stay the Mandate by Harris Intervenors-Appellees at 34 (Aug. 1, 2014) (Dkt. No. 239). Moreover, unlike in Kitchen, where the State of Utah continues to defend the constitutionality of its Appeal: 14-1167 Doc: 241 Filed: 08/04/2014 Pg: 6 of 9 5 prohibition on same-sex marriage, the Commonwealth has conceded in this case that Virginias Marriage Prohibition is unconstitutional, which conclusively demonstrates that the Commonwealth has no legitimate interest in leaving that discriminatory measure in place pending further appeal. The Commonwealths concessiontogether with the unbroken line of authority invalidating same-sex marriage bans since the Supreme Courts stay rulingmakes the stay analysis in this case materially different from the one in Kitchen. Indeed, whether or not to stay the mandate rests squarely within this Courts discretion and turns on the particular circumstances of each case. See Nken v. Holder, 556 U.S. 418, 433 (2009); see also Khulumani v. Barclay Natl Bank, Ltd., 509 F.3d 148 (2d Cir. 2007). The circumstances here call for issuance of the mandate and the immediate enforcement of the district courts injunction prohibiting Virginia from continuing to deny its gay and lesbian residents their fundamental right to marry. CONCLUSION Plaintiffs-Appellees respectfully request that this Court deny Clerk McQuiggs motion to stay the mandate.
Appeal: 14-1167 Doc: 241 Filed: 08/04/2014 Pg: 7 of 9 6 Dated: August 4, 2014 Respectfully submitted,
David Boies BOIES, SCHILLER & FLEXNER LLP 333 Main St. Armonk, NY 10504 (914) 749-8200
Robert B. Silver Joshua I. Schiller BOIES, SCHILLER & FLEXNER LLP 575 Lexington Avenue New York, NY 10022 (212) 446-2300
William A. Isaacson wisaacson@bsfllp.com BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, N.W. Washington, D.C. 20015 (202) 237-2727
Jeremy M. Goldman jgoldman@bsfllp.com BOIES, SCHILLER & FLEXNER LLP 1999 Harrison Street, Suite 900 Oakland, CA 94612 (510) 874-1000
Counsel for Plaintiffs-Appellees
/s/ Theodore B. Olson Theodore B. Olson Matthew D. McGill Amir C. Tayrani Chantale Fiebig GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8668
Theodore J. Boutrous, Jr. tboutrous@gibsondunn.com Joshua S. Lipshutz jlipshutz@gibsondunn.com GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7000
Thomas B. Shuttleworth Robert E. Ruloff Charles B. Lustig Andrew M. Hendrick Erik C. Porcaro SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK, P.C. 4525 South Blvd., Suite 300 Virginia Beach, VA 23452 (757) 671-6000
Counsel for Plaintiffs-Appellees
Appeal: 14-1167 Doc: 241 Filed: 08/04/2014 Pg: 8 of 9
CERTIFICATE OF SERVICE
I hereby certify that on the 4th day of August, 2014, I filed a true and correct copy of the foregoing Opposition to Motion to Stay the Mandate with the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit via the Courts CM/ECF system. All parties were served via the Courts via CM/ECF system. Appeal: 14-1167 Doc: 241 Filed: 08/04/2014 Pg: 9 of 9