UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
SCOTT WALKER, J.B. VAN HOLLEN )
AND OSKAR ANDERSON, )
v. ) Case No. 14-2526
VIRGINIA WOLF, et al., )
Plaintiffs-Appellees’ Motion To Expedite Appeal And
Consolidate Cases For Argument
Pursuant to Fed. R. App. P. 2 and 7th Cir. R. 2, appellees Virginia Wolf,
et al., through their attorneys, respectfully ask this Court to grant expedited
treatment to this appeal from a district court decision holding Wisconsin’s
marriage ban unconstitutional but staying relief. Plaintiffs also request that
this appeal be heard by the same panel as, and consolidated for oral
argument with, Baskin v. Bogan, No. 14-2386 (7th Cir. 2014). Expedited
review and consolidation will allow the court to promptly and efficiently
resolve issues of pressing public concern, and will shorten the length of time
that Plaintiffs will be burdened by the stay.
In support of their motion, Plaintiffs state as follows:
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1. On June 6, 2014, the United States District Court for the
Western District of Wisconsin entered an order declaring that art. XIII, § 13
of the Wisconsin Constitution, which limits marriage in the State to different-
sex couples and prohibits recognition of marriages entered into by same-sex
couples elsewhere, “violates plaintiffs’ fundamental right to marry and their
right to equal protection of laws under the Fourteenth Amendment to the
United States Constitution.” ECF No. 118 at 87.
The court further declared
that any Wisconsin statute limiting marriage to a “husband” and a “wife” is
similarly unconstitutional as applied to same-sex couples. Id.
2. On June 13, 2014, the court issued an injunction in support of its
June 6 decision. ECF No. 134 at 12-13. At the same time it issued this order
ending enforcement of Wisconsin’s marriage ban, the court stayed all relief
pending appeal. Id. at 13-14.
3. Fed. R. App. P. 2 “recognizes that there may be extraordinary
situations, involving either the public interest or the concerns of expeditious
judicial administration, where it becomes inappropriate to follow the
sometimes-leisurely pace established by the Rules for filing of a printed
record (or appendix), the preparation and filing of regular briefs, and the
submission with oral argument.” 16A Charles A. Wright, Arthur R. Miller,
Unless otherwise noted, all ECF numbers refer to Wolf, et al., v.
Walker, et al., No. 14-cv-64 (W.D. Wis. 2014).
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Edward H. Cooper & Catherine T. Struve, Federal Practice & Procedure
§ 3948, at 28-30 (4th ed. 2008) (footnotes and internal quotation marks
omitted). As the 1967 Advisory Committee Note to Fed. R. App. P. 2 states:
“The primary purpose of this rule is to make clear the power of the courts of
appeals to expedite the determination of cases of pressing concern to the
public or to the litigants by prescribing a time schedule other than that
provided by the rules.”
4. Expedited review is warranted in this case. Expedited treatment
“is necessary and proper . . . where important public policy issues are
involved.” Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969). See also Wisconsin Right to Life State Political Action Comm. v.
Barland, 664 F.3d 139, 146 (7th Cir. 2011) (expedited appeal granted in case
involving First Amendment challenge to Wisconsin’s campaign finance laws);
Second City Music, Inc. v. City of Chicago, 333 F.3d 846, 847 (7th Cir. 2003)
(granting expedited appeal in preliminary injunction case challenging
constitutionality of city ordinance).
5. To begin with, the district court’s stay of its ruling prevents
Plaintiffs and all same-sex couples from marrying in Wisconsin or having
their out-of-state marriages recognized in the State. The stay thus continues
the deprivation of constitutional rights that Wisconsin’s marriage ban
inflicts, causing Plaintiffs and other same-sex couples to suffer irreparable
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harm for as long as the stay is in effect. See Elrod v. Burns, 427 U.S. 347, 373
(1976) (A deprivation of constitutional rights, “for even minimal periods of
time, unquestionably constitutes irreparable injury.”). Moreover, all of
Wisconsin has been left in limbo, not knowing when or whether thousands of
its citizens will be allowed to enjoy the protections, obligations, benefits,
and—above all—dignity that marriage confers on a couple and a family.
6. This uncertainty has tangible consequences. For example,
Plaintiff Karina Willes, who married Plaintiff Kami Young in Minnesota in
December 2013, was not allowed to identify herself as a parent on her
daughter’s birth certificate because she is denied the presumption of
parenthood that marriage entails. Until Willes’ marriage to Kami Young is
recognized, her legal relationship to her daughter remains uncertain.
Similarly, Plaintiffs Hurtubise and Palmer are denied access to the step-
parent adoption process for jointly adopting their children because of their
inability to marry. The stay perpetuates Wisconsin’s marriage ban, and
thereby continues the “humiliat[ion of] tens of thousands of children now
being raised by same-sex couples” by “plac[ing] same-sex couples in an
unstable position of being in a second-tier marriage.” Windsor v. United
States, 133 S. Ct. 2675, 2694 (2013).
7. The importance of clarity with regard to marriage rights cannot
be overstated. Recognizing the need for swift resolution of this issue, this
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Circuit last month granted expedited review of three Indiana cases involving
that state’s marriage ban. See Baskin v. Bogan, No. 14-2386, ECF No. 14 (7th
Cir. June 30, 2014).
8. Simultaneous review of these cases both involving marriage bans
by the same panel would be advantageous for the Court for three reasons.
9. First, the two cases arise from states with different legal regimes
related to marriage and to same-sex relationships. Indiana’s marriage ban is
statutory, and prohibits only marriage for same-sex couples, not other legal
arrangements such as civil unions. Wisconsin’s ban, by contrast, is rooted in
an amendment to the state constitution, passed by a statewide vote, which
prohibits not only marriage, but also any “substantially similar” legal
relationship for same-sex couples. Wis. Const. art XIII, § 13. At the same
time, Wisconsin recognizes domestic partnerships, which confer a limited set
of rights and benefits, while Indiana provides no alternative legal protections
for the relationships of same-sex couples. Consideration of these background
legal differences has the potential to inform the Court’s conclusions regarding
the constitutional issues raised.
10. Second, and relatedly, Defendants and Amici in this case have
raised additional legal arguments in defense of Wisconsin’s ban that did not
arise in Baskin. For example, both Defendants and Amici defend the ban on
federalism grounds, emphasizing Wisconsin’s prerogative to regulate
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marriage by denying it to same-sex couples while offering them domestic
partnerships instead, as well as the need to protect state democratic
processes, including the process resulting in its constitutional amendment
banning marriage for same-sex couples. ECF No. 102 at 14-25. In light of the
federalism concerns raised in United States v. Windsor, 133 S. Ct. 2675
(2013), addressing and resolving those arguments is essential to a conclusive
resolution of the constitutional issues. In addition, Defendants have raised
the federal constitutional argument that the Due Process Clause does not
confer any rights that require affirmative support or endorsement by the
state (in Defendants’ parlance, positive rights). ECF No. 102 at 8-14. By
consolidating the cases, the Court will gain the advantage of considering any
of the broader range of arguments the Wisconsin state defendants may
choose to make at the same time it addresses arguments from the State of
11. Finally, given the importance of the issues involved and the need
for thoughtful analysis, this Court should avail itself of the trial court’s
closely-reasoned, well-informed, and thorough 87-page opinion in this matter.
12. In addition to the reasons given above, this case should be heard
as soon as possible because Wisconsin continues to have on its books a
statute making it a crime to leave the state to enter into a marriage that
would be void in Wisconsin. Wis. Stat. s. 765.30(1)(a). Although two previous
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district attorney defendants in this case declared that they did not believe the
statute applied to marriages of same-sex couples (and therefore they would
not prosecute married Plaintiffs), ECF No. 55-1, their interpretation is not
binding on any of the other district attorneys in the state.
Resolution of the
constitutional issues in this case will put to rest any fear on the part of same-
sex couples that they could be prosecuted for marrying outside of Wisconsin.
13. Finally, other federal Courts of Appeals have entered accelerated
briefing schedules in similar cases challenging state restrictions on the
freedom to marry for same-sex couples. See Kitchen v. Herbert, No. 13-4178
(ECF No. 01019177155, at 2) (10th Cir. Dec. 24, 2013) (expediting briefing
and argument); Bostic v. Schaefer No. 14-1167 (ECF No. 38) (4th Cir.)
(expediting briefing and argument); Latta v. Otter, No. 14-35420, ECF No. 11
(9th Cir. May 20, 2014) (expediting briefing). And this Court issued an
expedited briefing order in the Indiana marriage cases as well. Baskin, No.
14-2386, ECF No. 14 (7th Cir. June 30, 2014). The issues presented by the
state of Wisconsin and Wisconsin couples in this case raise issues every bit as
pressing as the other cases, and should be resolved as swiftly as practicable.
14. Expediting this appeal would not prejudice Defendants. As
Defendants themselves have acknowledged, “[r]ecognition of same-sex
Those district attorneys were dismissed from the case because of their
stipulation. ECF No. 97 at 3-4.
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marriages is a hotly contested issue.” State Defendants’ Memorandum in
Support of Contingent Motion for Stay, ECF No. 116 at 10 (quoting Tanco v.
Haslam, No. 14-5297 at 2 (6th Cir. Apr. 25, 2014)). Defendant Van Hollen has
also stated his desire to “ensure that Wisconsin is placed on equal footing
with Indiana, and that our constitution and laws are given timely
consideration by the appellate judges.” July 10, 2014 News Release (attached
hereto as Exhibit A). Further, this case was decided on a Motion for
Summary Judgment, demonstrating that the contested issues are entirely
legal. Both sides are well-versed in their arguments and could prepare briefs
in a short time. Indeed, in the previously filed appeal in this case, Defendants
were ready to present arguments to this Court on an emergency basis. See
June 9, 2014 Emergency Motion for Stay, Wolf, et al., v. Walker, et al., No. 14-
2266 (7th Cir. June 9, 2014), ECF No. 2.
15. Accordingly, Plaintiffs respectfully request that this Court
expedite review of this appeal and establish the following briefing schedule:
Opening Brief to be filed by July 25, 2014. Response due by August 8, 2014.
Reply due August 15, 2014.
Plaintiffs further request that this appeal be
assigned to the same panel that is hearing Baskin, and that the matters be
The proposed schedule is consistent with the schedule ordered by the
Seventh Circuit on June 30 in the Baskin case. See Baskin No. 14-2386, ECF
No. 14 (7th Cir. June 30, 2014). Plaintiffs are willing to file their brief on an
even more expedited schedule if necessary to consolidate oral argument.
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consolidated for oral argument, to be scheduled promptly following the
deadline for the reply brief in this matter.
Dated: July 11, 2014 Respectfully submitted,
By: s/ John A. Knight
Counsel for Plaintiffs
JOHN A. KNIGHT
American Civil Liberties Union
Lesbian Gay Bisexual Transgender
180 North Michigan Ave.,
Chicago, IL 60601
JAMES D. ESSEKS
American Civil Liberties Union
Lesbian Gay Bisexual Transgender
125 Broad Street
New York, NY 10004
LAURENCE J. DUPUIS
American Civil Liberties Union of
207 E. Buffalo St., Ste. 325
Milwaukee, WI 53202
HANS J. GERMANN
GRETCHEN E. HELFRICH
Mayer Brown LLP
71 S. Wacker Dr.
Chicago, IL 60606
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CERTIFICATE OF SERVICE
I certify that on July 11, 2014, I electronically filed the foregoing
Plaintiffs-Appellees’ Motion To Expedite Appeal And Consolidate Cases For
Argument with the Clerk of the Court using the CM/ECF system, which will
accomplish electronic notice and service for the following participants in the
case, who are registered CM/ECF users:
Thomas C. Bellavia
Michael D. Dean
Frank M. Dickerson
Laurence J. Dupuis
Gretchen E. Helfrich
Clayton P. Kawski
Timothy C. Samuelson
I also certify that I sent via email the foregoing Plaintiffs-Appellees’
Motion To Expedite Appeal And Consolidate Cases For Argument to the
James D. Esseks (email@example.com)
Hans Joseph Germann (firstname.lastname@example.org)
John Paul Serketich (email@example.com)
s/ John A. Knight
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