You are on page 1of 7

Case Nos.

14-1167(L), 14-1169, 14-1173


UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
TIMOTHY B. BOSTIC, et al.,
Plaintiffs-Appellees,
and
CHRISTY BERGHOFF, JOANNE HARRIS, JESSICA DUFF, AND VICTORIA
KIDD, on behalf of themselves and all others similarly situated,
Intervenors,

v.
GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Court for Norfolk
Circuit Court,
Defendant-Appellant,

and
JANET M. RAINEY, in her official capacity as State Registrar of Vital Records,
Defendant-Appellant,
and
MICHLE B. MCQUIGG, in her official capacity as Prince William County Clerk of
Circuit Court,

Intervenor/Defendant-Appellant.
On appeal from the United States District Court for the Eastern District of Virginia,
Norfolk Division, Case No. 2:13-cv-00395-AWA-LRL
The Honorable Arenda L. Wright Allen
REPLY TO PLAINTIFFS-APPELLES OPPOSITION TO APPELLANT
MCQUIGGS MOTION FOR STAY OF MANDATE
Byron J . Babione
Kenneth J . Connelly
J . Caleb Dalton
Alliance Defending Freedom
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020 (t); (480) 444-0028 (f)
bbabione@alliancedefendingfreedom.org
David Austin R. Nimocks
Alliance Defending Freedom
801 G Street N.W., Suite 509
Washington, D.C. 20001
(202) 393-8690 (t); (480) 444-0028 (f)
animocks@alliancedefendingfreedom.org

Attorneys for Michle B. McQuigg
Appeal: 14-1167 Doc: 245 Filed: 08/06/2014 Pg: 1 of 7

1

Appellant Michle B. McQuigg, in her official capacity as Prince William
County Clerk of Circuit Court, (Clerk McQuigg) hereby replies to Plaintiffs-
Appellees (Plaintiffs) opposition to her motion for a stay of the mandate.
Plaintiffs, like the Harris class, cast their arguments within the four-prong
standard that courts apply when asked to stay district-court injunctions. See
Plaintiffs Opposition at 1. Even if this Court were to apply that standard, as Clerk
McQuigg has previously explained, the Supreme Court in Herbert v. Kitchen
already unanimously determined that those factors weigh in favor of issuing a stay
and maintaining the status quo on marriage laws pending full appellate review. See
McQuigg Reply to Harris Class at 1-2.
Plaintiffs notably mischaracterize the standard that they invoke in order to
suit their arguments, claiming that Clerk McQuigg must show that she is likely to
prevail on the merits. See Plaintiffs Opposition at 1-2. Assuming that this Court
applies the four-prong standard that Plaintiffs advance, that is not the appropriate
inquiry. Rather, the question is whether Clerk McQuigg has demonstrated a fair
prospect that a majority of the Court will vote to reverse the judgment below.
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (emphasis added).
By issuing the stay in Herbert v. Kitchen, the Supreme Court already expressed its
belief that there is a fair prospect that a majority of the Court will vote to reverse
the judgment below and uphold the man-woman marriage laws enacted
Appeal: 14-1167 Doc: 245 Filed: 08/06/2014 Pg: 2 of 7

2

throughout the various States. Id. The lower-court decisions that have issued since
Herbert v. Kitchen, a point emphasized by Plaintiffs (see Plaintiffs Opposition at
4-5), do not eliminate the Supreme Courts own assessment that litigants defending
man-woman marriage laws have a fair prospect of succeeding before the high
court.
Plaintiffs also attempt to distinguish Herbert v. Kitchen by arguing that the
Commonwealth has no legitimate interest in enforcing its laws because the
Attorney General here, unlike the Attorney General in Utah, agrees with Plaintiffs
legal arguments on the merits. See Plaintiffs Opposition at 4-5. But for purposes of
the stay inquiry, the proper focus is whether Registrar Rainey intends to enforce the
Commonwealths man-woman marriage laws pending appeal (not the Attorney
Generals personal views about those laws constitutionality). In that respect, the
Herbert v. Kitchen case is identical to this one. Indeed, the Attorney General has
made it clear that Registrar Rainey, like the Utah state officials in Herbert v.
Kitchen, will continue to enforce [the challenged marriage laws] until a definitive
judicial ruling can be obtained from the Supreme Court. See Rainey Response at
6. Therefore, the cases are not materially distinguishable for purposes of granting a
stay, and this Court should follow the guidance of the Supreme Court and stay its
mandate.
Appeal: 14-1167 Doc: 245 Filed: 08/06/2014 Pg: 3 of 7

3

The balance of the equities also favors a stay. As the Attorney General
explained on behalf of Registrar of Vital Records J anet M. Rainey (Registrar
Rainey), Plaintiffs have ignored the harm and uncertainty to the Commonwealth,
local governments, and private parties that could result from failing to stay the
mandate. See Rainey Response at 4-6. And Plaintiffs have ignored that, as a matter
of law, a state suffers irreparable injury whenever an enactment of its people . . . is
enjoined. McQuigg Stay Motion at 9 (collecting cases); see also Rostker v.
Goldberg, 448 U.S. 1306, 1310 (1980) (Brennan, J ., in chambers) (granting a stay
because the inconvenience of compelling plaintiffs to comply with a statute that
the lower court held unconstitutional did not outweigh[] the gravity of the harm
to the government should the stay requested be refused). Plaintiffs, therefore,
have failed to refute the harms that Clerk McQuigg and the Attorney General have
identified.
On the other side of the equities balance, Plaintiffs arguments are
unpersuasive. Like the Harris class, Plaintiffs base their allegations of injury solely
on the assumption that their claims will ultimately prevail on appeal. See Plaintiffs
Opposition at 3-4. But when addressing the injury question, the Court is to
assum[e] the correctness of the [stay] applicants position rather than, as
Plaintiffs assume, the correctness of the stay opponents position. Planned
Appeal: 14-1167 Doc: 245 Filed: 08/06/2014 Pg: 4 of 7

4

Parenthood of Se. Pa. v. Casey, 510 U.S. 1309, 1310 (1994) (Souter, J ., in
chambers). Thus, Plaintiffs have not shown that the equities weigh in their favor.
CONCLUSION
For the foregoing reasons, this Court should grant the relief that Clerk
McQuigg seeks in her motion to stay the mandate. Clerk McQuiggs continued
enforcement of Virginias man-woman marriage laws hinges on this Courts
mandate. Because the enforcement of those laws affects her statutory duties, she
respectfully requests that the Court rule on this motion on or before August 11,
2014, which is one week before the mandate is scheduled to issue. Additionally, if
the Court declines to stay the mandate, Clerk McQuigg requests that the Court
follow the Harris classs suggestion and order a 14-day interim stay of the
mandate to give McQuigg an opportunity to seek [a stay] from the Supreme
Court. Harris Opposition at 6-7. Doing so will ensure that the Supreme Court has
an opportunity to address this issue before the status quo on marriage changes in
Virginia.


Appeal: 14-1167 Doc: 245 Filed: 08/06/2014 Pg: 5 of 7

5

Dated: August 6, 2014
Respectfully submitted,
s/Byron J . Babione
Byron J . Babione
Kenneth J . Connelly
J . Caleb Dalton
Alliance Defending Freedom
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020 (t); (480) 444-0028 (f)
bbabione@alliancedefendingfreedom.org

David Austin R. Nimocks
Alliance Defending Freedom
801 G Street N.W., Suite 509
Washington, D.C. 20001
(202) 393-8690 (t); (480) 444-0028 (f)
animocks@alliancedefendingfreedom.org

Attorneys for Michle B. McQuigg

Appeal: 14-1167 Doc: 245 Filed: 08/06/2014 Pg: 6 of 7

6

CERTIFICATE OF SERVICE
I hereby certify that on August 6, 2014, the foregoing document was
electronically filed with the Clerk of Court, and served on all parties or their
counsel of record through the CM/ECF system. The participants in the case are
registered CM/ECF users and service will be accomplished by the appellate
CM/ECF system.

Date: August 6, 2014 s/Byron J . Babione
Byron J . Babione



Appeal: 14-1167 Doc: 245 Filed: 08/06/2014 Pg: 7 of 7

Rate