Appellate Case: 14-5003 & 14-5006 Document: 01019203061 Date Filed: 02/14/2014 Page: 1

Case Nos. 14-5003, 14-5006 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT MARY BISHOP, et al., Plaintiffs-Appellees, and SUSAN G. BARTON, et al., Plaintiffs-Appellees/Cross-Appellants,

v.
SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, Defendant-Appellant/Cross-Appellee, and THE UNITED STATES OF AMERICA, ex rel. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States of America, Defendant,

-------------------------------BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, et al. Intervenors-Defendants.

APPELLANT SALLY HOWE SMITH’S UNOPPOSED MOTION FOR LEAVE TO FILE OVERSIZED BRIEF

Pursuant to Tenth Circuit Rule 28.3, Appellant Sally Howe Smith, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, requests permission to use up to an additional 7,000 words in her opening brief. Plaintiffs, the only other party participating in this appeal, do not oppose this request.

Docket Reference [10149717]

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ARGUMENT Compelling and extraordinary circumstances justify Smith’s request to file a brief exceeding the word count. 10th Cir. R. 28.3 (“Motions to exceed the word count will be denied unless extraordinary and compelling circumstances can be shown.”). This case presents one of the most important legal questions facing the federal judiciary today—the constitutionality of a State’s decision to define marriage as the union of a man and a woman and thereby to preserve the manwoman marriage institution. This issue is important not just to Oklahoma and its citizens, but also to other States within this Circuit that maintain similar marriage laws and the majority of States throughout the Nation that have adopted the same fundamental marriage policy as the People of Oklahoma. Analyzing this legal question requires an understanding of marriage’s role and public purpose as a complex social institution. It also necessitates a detailed consideration of the compelling interests furthered by that institution. The need to include a thorough discussion of these important matters amply justifies Smith’s request to file an oversized brief. For these reasons, in Kitchen v. Herbert, this Court granted Utah state officials’ recent request to use up to an additional 10,000 words in their opening brief defending the marriage laws in their case. See Kitchen v. Herbert, No. 13-

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4178, Order (10th Cir. Feb. 10, 2014). Similarly, in Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 786 (2013), a case considering the constitutionality of California’s marriage laws, the Ninth Circuit allowed both sides to file opening briefs containing a maximum of 31,000 words (17,000 words over the typical limit). And in Sevcik v. Sandoval, No. 12-17668, a case challenging Nevada’s marriage laws, the Ninth Circuit allowed both sides to file opening briefs of 26,500 words, more than 12,000 words over the standard 14,000-word limit. The request for 7,000 words in this case is modest by comparison. The compelling nature of the legal question presented here, its extraordinary importance to People of Oklahoma and throughout the country, and the need to discuss the social role and public purpose of marriage demonstrate that extraordinary and compelling circumstances warrant Smith’s filing an oversized opening brief. Smith could not have made this request earlier. 10th Cir. R. 28.3 (“A motion filed within 14 days of the brief’s due date must show why earlier filing was not possible.”). On January 28, 2014, this Court issued an order expediting this appeal. Since then, Smith’s attorneys have worked diligently to compose a draft brief, and only now have they determined that they need an enlarged word count to develop the arguments in defense of Oklahoma’s Marriage Amendment.

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Notably, the Utah state officials filed their recent request to enlarge the word count a mere five days before their brief was due. See Kitchen v. Herbert, No. 134178, Defendants-Appellants’ Unopposed Motion to Exceed Word Count in Their Opening Brief (10th Cir. Jan. 29, 2014). And that request was granted by this Court. See Kitchen v. Herbert, No. 13-4178, Order (10th Cir. Feb. 10, 2014). Here, Smith files this request 10 days before her brief is due; thus this Court should similarly grant her request. CONCLUSION For the foregoing reasons, Smith respectfully requests permission to use up to an additional 7,000 words in her opening brief.

Respectfully submitted, s/ Byron J. Babione Byron J. Babione David Austin R. Nimocks James A. Campbell Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 (t); (480) 444-0028 (f) bbabione@alliancedefendingfreedom.org Attorneys for Sally Howe Smith

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CERTIFICATE OF SERVICE I hereby certify that on February 14, 2014, I electronically filed the foregoing using the court’s CM/ECF system, which will send notification of such filing to the following: Don Gardner Holladay dholladay@holladaychilton.com James Edward Warner, III jwarner@holladaychilton.com Joseph Thai thai@post.harvard.edu Attorneys for Plaintiffs-Appellees/Cross-Appellants

Date: February 14, 2014

s/ Byron J. Babione Byron J. Babione

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CERTIFICATE OF DIGITAL SUBMISSION I hereby certify (1) that all the required privacy redactions have been made as required by Tenth Circuit Rule 25.5, (2) that the submitted hard copies, if any, are an exact copy of the ECF submission, and (3) that the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program, Sophos Endpoint Security and Control, Version 10.3, and are free of viruses according to that program.

Date: February 14, 2014

s/ Byron J. Babione Byron J. Babione

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