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Nos. 14-1167(L), 14-1169, 14-1173
_________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_________________________

TIMOTHY B. BOSTIC, TONY C. LONDON, CAROL SCHALL, and
MARY TOWNLEY,

Plaintiffs–Appellees,

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,

Defendants–Appellants,

and

MICHÈLE B. MCQUIGG, in her official capacity as the Clerk of Prince William
County Circuit Court,

Intervenor-Defendant–Appellant.
_________________________

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-APPELLANT’S MOTION TO STAY THE MANDATE
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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 Michèle
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 court’s injunction against Virginia’s 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 Virginia’s 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 (“Virginia’s 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,
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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 individual’s 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 Court’s understanding of marriage is consistent with the Supreme
Court’s 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 courts—every federal
court to consider a same-sex marriage ban since the Supreme Court’s 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 3–4 (Aug. 1, 2014) (Dkt. No. 239) (collecting cases).
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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 court’s
injunction.
The right to marry is fundamental, and thus Virginia’s Marriage Prohibition
irreparably harms Plaintiffs-Appellees—and all gay men and lesbians in the
Commonwealth—each 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 court’s
injunction would not result in any irreparable injury to Clerk McQuigg, the
Commonwealth, or the public interest. As this Court explained, “the people’s will
is not an independent compelling interest that warrants depriving same-sex couples
of their fundamental right to marry,” and “neither Virginia’s federalism-based
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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 3–4 (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 3–4 (Aug. 1, 2014) (Dkt. No. 239). Moreover, unlike in
Kitchen, where the State of Utah continues to defend the constitutionality of its
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5
prohibition on same-sex marriage, the Commonwealth has conceded in this case
that Virginia’s 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 Commonwealth’s concession—together with the unbroken line of
authority invalidating same-sex marriage bans since the Supreme Court’s stay
ruling—makes 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
Court’s 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 Nat’l
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 court’s 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
McQuigg’s 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
Court’s CM/ECF system. All parties were served via the Court’s via CM/ECF
system.
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