IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
No. 14-1283

CATHERINE BURNS; et al.

Plaintiffs–Appellees

v.

JOHN SUTHERS, in his official capacity as Attorney General of Colorado;

Defendant–Appellant, and

JOHN W. HICKENLOOPER, JR., in his official capacity as Governor of
Colorado; and

PAM ANDERSON, in her official capacity as Clerk and Recorder for
Jefferson County,

Defendants.


ATTORNEY GENERAL’ S REPLY IN SUPPORT OF
MOTION FOR STAY PENDING APPEAL
A stay of this case challenging Colorado’s marriage laws is every bit
as appropriate as the stays issued in the Utah and Oklahoma cases in
this circuit – to say nothing of the similar stays granted in many other
federal and state marriage cases. Plaintiffs, like plaintiffs in many
indistinguishable cases seeking a constitutional right to same-sex
marriage, oppose a stay and demand that Colorado be ordered to treat
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Docket Reference Number: [10198854]
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its laws as invalid before the issue has been settled on appeal. Precedent
and principles of law compel a stay pending appeal in this case.
Reasons for Granting Stay Pending Appeal
I. Precedent overwhelmingly favors a stay.
As everyone knows, this Court has recently issued stays in both the
Utah and Oklahoma same-sex marriage cases. See Kitchen v. Herbert,
No. 13-4178, slip op. 64–65 (10th Cir. June 25, 2014) (stayed pending
appeal); Bishop v. Smith, Nos. 14-5003, 5006, slip op. 46 (10th Cir. July
18, 2014) (same). When this Court denied a stay in an earlier phase of
the Kitchen case and when this Court denied a stay in the ancillary
marriage case out of Utah, the U.S. Supreme Court issued stays. See
Herbert v. Evans, No. 14A65 (U.S. July 18, 2014) (stay pending appeal
granted); Herbert v. Kitchen, 134 S.Ct. 893 (U.S. Jan. 6, 2014) (stay
pending appeal granted). This authority amply supports Colorado’s
request for a stay pending appeal here.
Plaintiffs ignore this precedent until the very last paragraph of the
Response and offer but one argument to distinguish the stays issued in
this Circuit: “Here, in contrast, Defendants stipulated to the injunction.
Therefore, as explained above, there is no adverse ruling to appeal, and
no case or controversy to adjudicate.” Resp. at 18. This misrepresents
the Attorney General’s position. The Attorney General has vigorously
defended Colorado’s marriage laws and continues to do so in this appeal
(to the chagrin of these Plaintiffs, in fact). To be sure, this lawsuit was
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filed after this Court issued its decision in Kitchen and that decision,
once final, will likely dictate the answer to the legal claims in this case.
For that reason, the Attorney General and other defendants elected to
not oppose the preliminary injunction, so long as it was stayed pending
appellate resolution of the issues. The non-opposition was entirely
contingent on a stay being issued.
The Attorney General was forthright about his opposition to the
Plaintiffs’ claims on page 2 of the original motion for a stay in the
district court:
To provide a clear record - the Attorney General – speaking
alone as Defendant, representing the interests of the State of
Colorado, believes the majority in the Tenth Circuit’s 2-1
decision in Kitchen is incorrect for the reasons stated in his
motion for summary judgment and reply in support thereof in
the pending state case, (Brinkman et al. v. Long, et al. No.
13CV32572 (D. Ct. Adams Cnty Colo.)), and for the reasons
stated in the amicus brief Colorado joined in the Kitchen case
(Amicus Br. of Indiana et al., Case Nos. 13-4178, 14-5006
(10th Cir. 2014)).
Consistent with the motion, at the argument before the district court the
Attorney General stated his opposition to the Kitchen decision (and
hence the merits of the Plaintiffs’ claims in this case), and explained that
the non-opposition was simply a matter of judicial economy.
1


1
See, e.g., Tr. 34:25-35-1-3 (“the Attorney General is perfectly content to
file an appeal to the Tenth Circuit and have this go up to the Tenth
Circuit and preserve or objections to Kitchen.”); Tr. 35:17-19 (“we have
stated our opposition or belief that the Tenth Circuit’s decision in
Kitchen is wrong. We would be appealing to defend Colorado’s marriage
laws.”); Tr. 36:9-12 (“we disagree with the Kitchen decision. We believe
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3

The District Court understood this position and did not take up the
Attorney General’s offer “if it made a difference” to file voluminous briefs
on the constitutional issues. See Tr. 35:5-8 (“[W]e are preserving our
objections to the Kitchen decision. We do believe it’s wrongly decided. If
it made a difference we would be happy to file briefs, voluminous briefs,
with lots of constitutional arguments, restating those…”).
Plaintiffs never address this stated opposition to the merits of their
claims and instead argue there is not a justiciable controversy because
the defendants allegedly have conceded the merits. This is the first
same-sex marriage case of the more than a hundred filed across the
country where the plaintiffs have filed a lawsuit after a federal court of
appeals ruled against marriage laws, but before the case was final. This
accident of timing does not mean that Colorado is put in the shoes of
Oregon or Illinois, as Plaintiffs repeatedly argue, where those states (1)
did not appeal district court orders, and thus (2) never asked for a stay
pending appeal. To hold otherwise would be to penalize litigants for
sensibly respecting the authority of this Circuit and preserving
objections to still pending cases while awaiting this Circuit’s final word
on a legal issue. The Plaintiffs and district court have always understood
the Attorney General’s opposition to the relief they seek (permanent
injunction), and his intention of defending Colorado’s marriages laws

Colorado’s laws are constitutional, and we have multiple other lawsuits
pending that the people are critical of for that. We think we have more
than preserved our position…”).
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until there is a final, binding Tenth Circuit or Supreme Court decision to
the contrary. Seeking a stay below and before this court is fully
consistent with Colorado’s defense of its marriage laws.
Just as Plaintiffs have no sound reason that a stay should have been
issued in Kitchen and Bishop, but not here, they offer no sound reason to
distinguish the supporting federal circuit court, district court, and state
court precedent favoring a stay whenever a state defends its marriage
laws. The plethora of cases cited in the Attorney General’s motion all
support the preservation of the status quo pending appeal in state
marriage cases.
2

Plaintiffs rely heavily on this Court’s non-final decision in Kitchen,
certiorari pending, save for the stay issued in Kitchen. Regardless, no
Supreme Court authority presently creates a clearly established
fundamental right to same-sex marriage. Indeed, the Supreme Court

2
The Fourth Circuit’s denial of a stay of the mandate in the Bostic case
yesterday does not defeat the overwhelming authority to the contrary.
See Plaintiffs Supp. Auth., filed 8/13/14. First, this Court should apply
the U.S. Supreme Court and prior Tenth Circuit precedent supporting a
stay. Second, the Fourth Circuit order was over dissent and the decision
has been appealed on an emergency basis to the U.S. Supreme Court.
See http://www.adfmedia.org/files/SchaeferStayApplication.pdf
(8/14/2014). The Fourth Circuit’s order may well be overturned, as were
two denials of stays in the Tenth Circuit. Third, the legal issue in Bostic
was under F.R.A.P. 41 (stay of mandate), not F.R.A.P. 8 (stay pending
appeal), so the legal standards are inapplicable here. With the mandate
set to issue in a week, it is likely the U.S. Supreme Court will rule on
this stay application before August 21, 2014.
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declined to address that constitutional question in its United States v.
Windsor decision and saved that question for another day in
Hollingsworth. See United States v. Windsor, 133 S. Ct. 2675, 2682-83
(noting that the portion of DOMA that allows States to refuse to
recognize same-sex marriages performed under other States’ laws was
not challenged in the lawsuit); id. at 2691-94 (discussing history,
tradition, and significance of States’ authority to define marriage and
reach consensus in their communities). The constitutional claims for
same-sex marriage have not been decided by a final court order,
contrary to the claims of Plaintiffs.
II. A stay would preserve the status quo.
The Plaintiffs reluctantly acknowledge that the purpose of a stay is to
preserve the status quo pending appeal. Resp. at 17. This case should be
stayed in order to preserve the status quo as the legal issues are
resolved on appeal. The status quo in Colorado is the continued
enforcement of the marriage laws that define marriage as the union of
one man and one woman. Indeed, the county clerks who had been
issuing same-sex marriage licenses contrary to state law have been
ordered to stop by the Colorado Supreme Court (and have stopped
issuing such licenses).
Plaintiffs have no explanation for how the preservation of the status
quo would be furthered if the preliminary injunction below were not
stayed pending final resolution of the claims. There is no explanation
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because Plaintiffs desire this Court to disrupt the status quo and order
that a preliminary injunction should go into effect, altering the law in
Colorado. As just one example, Plaintiffs desire the temporary stay
below to be lifted so County Clerks in Colorado would be legally
compelled to issue same-sex marriage licenses. This is the opposite of
preserving the status quo. This Court’s precedent favors a stay pending
appeal when it would be necessary to preserve the status quo. E.g.
Lundgrin v. Claytor, 619 F.2d 61 (10th Cir. 1980) (“The function of a
preliminary injunction is to preserve the status quo pending a final
determination of the rights of the parties.”); City of Albuquerque, 49 F.3d
1014, 1020 (10th Cir. 1996) (“The purpose of a stay is to preserve the
status quo pending appellate determination.”). This remains unrebutted.
The position of Colorado in this case is akin to that of Utah in
Kitchen, or Oklahoma in Bishop, and Colorado before the Colorado
Supreme Court. Until the U.S. Supreme Court makes a final resolution
of the merits for the claimed constitutional right to same-sex marriage,
state laws should remain in place. That is the only way to understand
the stays granted to Utah and Oklahoma by this Court and the U.S.
Supreme Court, and the two stays issued in Colorado by its Supreme
Court. A stay is required to preserve the status quo of state law should
while appeals are pending. The orderly administration of constitutional
appeals requires as much.
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III. The likelihood of success, balance of harms, and
public interest strongly favor a stay.
With a typical request for a stay pending appeal, courts look to four
factors when deciding whether to issue a stay. However, with same-sex
marriage litigation, federal courts have largely skipped a methodical
assessment of those four factors in favor of entering a stay due to the
“unsettled” nature of the constitutional questions regarding same-sex
marriage and the “confusion, potential inequity, and high costs” that
would likely result if the decision granting injunctive relief were
reversed on appeal. Tanco v. Haslam, No. 14-5297, slip op. at 2 (6th Cir.
Apr. 25, 2014) (entering stay without assessment of four factors)
(quoting Henry v. Hines, No. 1:14-cv-129, 2014 WL 1512541, at *1 (S.D.
Ohio Apr. 16, 2014)).
3

Federal courts have also found the U.S. Supreme Court’s stay issued
in Kitchen (after the District Court and Tenth Circuit had initially
denied a stay) to be compelling. Herbert v. Kitchen, 134 S. Ct. 893 (2014).
Even courts which would have found, under the tradition factors, a stay

3
See also Herbert v. Kitchen, 134 S. Ct. 893 (2014) (entering stay
without mention of four factors); Baskin v. Bogan, No. 14-2386, slip op.
at 2 (7th Cir. June 27, 2014) (granting stay without analysis); Kitchen v.
Herbert, No. 13-4178, slip op. at 64-65 (10th Cir. June 25, 2014) (same);
Latta v. Otter, No. 14-35420 slip op. at 1 (9th Cir. May 20, 2014) (same);
Henry v. Himes, No. 14-cv-129, 2014 2014 WL 1512541 at *1 (S.D. Ohio
Apr. 16, 2014) (unpublished) (reasoning that four factors do not warrant
stay, but entering stay to allow the appellate process to run its course
and “[p]remature celebration and confusion do not serve anyone’s best
interests.”).
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lacking, have understood the U.S. Supreme Court’s decision to compel
stays in these cases. See Latta, No. 14-35420 slip op. at 305 (Hurwitz, J.,
concurring) (reasoning that a stay is not justified by the four-factor test,
but recognizing that the U.S. Supreme Court has provided a “clear
message” that “district court injunctions against the application of laws
forbidding same-sex unions should be stayed at the request of state
authorities pending court of appeals review.”).
4

In both the Kitchen and Bishop cases this Court was divided 2-1 on
the merits of the constitutional claim for same-sex marriage. Utah has
already filed a petition for certiorari with the U.S. Supreme Court (as
have parties in both the Bishop case in the Tenth Circuit and the Bostic
case in the Fourth Circuit). The legal issues raised in this case, like
those raised in other same-sex marriage litigation, are without doubt
“substantial case on the merits” which is enough to satisfy the

4
See also DeBoer v. Snyder, No. 14-1341, slip op. at 2-3 (6th Cir. Mar.
25, 2014) (granting stay without assessment of identified factors because
“[t]here is no apparent basis to distinguish this case or to balance the
equities any differently than the Supreme Court did in Kitchen.”); Wolf
v. Walker, No. 14-cv-64, 2014 WL 2693963, at *2-1, 6-7 (W.D. Wis. June
13, 2014) (concluding that the Supreme Court’s stay in Herbert v.
Kitchen compels a stay of the district court’s decision even though the
stay factors are not satisfied); Bishop v. United States ex rel. Holder, 962
F. Supp. 2d 1252, 1296 (N.D. Okla. 2014) (granting stay “[i]n accordance
with the U.S. Supreme Court’s issuance of a stay in [the] nearly identical
case,” Herbert v. Kitchen); Bostic v. Rainey, 970 F. Supp. 456, 484 (E.D.
Va. 2014) (same); DeLeon v. Perry, 975 F. Supp. 2d 632, 666 (W.D. Tex.
2014).
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requirements of Rule 8 for a stay pending appeal. See Hilton v.
Braunskill, 481 U.S. 770, 778 (1987) (Fed. R. App. P. 8 allows an
injunction when there is a “substantial case on the merits” and other
factors “militate in movant’s favor.”).
Plaintiffs contend the Attorney General cannot seek a stay because
the preliminary injunction was not opposed, and therefore the
defendants have “conceded” there is no case on the merits. This conflates
the request for a preliminary injunction with the Complaint and request
for a permanent injunction. In this case no defendant has conceded that
on the merits a permanent injunction should be entered. In fact, the
Attorney General has repeatedly expressed opposition to the merits of
Defendants’ claim. Put another way, the Attorney General agrees to a
delayed injunction that is contingent upon the Tenth Circuit’s decision
becoming final and binding.
This is not unlike how the United States handled similar
contraceptive mandate cases that were filed after a dispositive court of
appeals case was decided. In those situations, the United States sought a
stay and did not oppose preliminary injunctive relief, on account of the
Court of Appeals decision that would control the outcome once it became
final. A stay following a party’s non-opposition to a preliminary
injunction is hardly unique and is analogous to the procedural posture of
federal lawsuits concerning the Affordable Care Act, which were filed
during the pendency of a related appeal to the Supreme Court in
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Sebelius v. Hobby Lobby Stores, Inc., No. 13-354 and Conestoga Wood
Specialty Corporation v. Sebelius, No. 13-356 . See, e.g., Hastings Auto.,
Inc. v. Sebelius, No. 14-265, slip op. at 1-2 (D. Minn. May 28, 2014);
Stinson Elec., Inc. v. Sebelius, No. 14-cv-00830, slip op. at 2-3 (D. Minn.
Apr. 30, 2014); Holland, Jr. v. U.S. Dep’t of Health and Human Servs.,
No. 2:13-cv-15487, slip op. at 1-2 (S.D. W. Va. Dec. 10, 2013); see also
Holland, Jr. v. U.S. Dep’t of Health and Human Servs., No. 2:13-cv-
15487, slip op. at 1 (S.D. W. Va. July 15, 2014). This sensible procedural
mechanism was not rejected by any court and should be applied in this
case.
The harms claimed by Plaintiffs are no different than the harms
claimed by other plaintiffs in same-sex marriage cases where courts
have issued a stay pending appeal. These claimed harms do not justify
the immediate implementation of judicial relief in the face of pending
certiorari petitions and other appeals. Should proponents of same-sex
marriage ultimately prevail, then these harms can be mediated.
Conversely, should States defending traditional marriage definitions
ultimately prevail, then all the claimed harms would be made a nullity.
When weighed against irreparable harm to the State for invalidating
state law before a final court order issues, the balance of harms in this
situation favors the preservation of the status quo pending appeal.
Finally, principles of comity favor a stay in this case. In the instant
case, a preliminary injunction without a stay would alter the status quo
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11

because it would preliminarily nullify the force and effect of Colorado’s
traditional definition of marriage. A stay of the preliminary injunction,
however, would preserve the status quo and, likewise, it would not
conflict with Colorado Supreme Court’s two stay orders in parallel state
court litigation. Moreover, a stayed preliminary injunction would
comport with the considerations of comity, which militate against
redetermination of issues in a federal forum that have been decided in a
state court. See, e.g., Montana v. United States, 440 U.S. 147, 163-64
(1979); see also BLACK’S LAW DICTIONARY 110 (2d pocket ed. 2001)
(defining “judicial comity” as “[t]he respect a court of one state or
jurisdiction shows to another state or jurisdiction in giving effect to the
other’s laws and judicial decisions.”). In contrast, the denial of stay in
this case would directly conflict with two orders from the Colorado
Supreme Court, whereby clerks in Denver, Adams and Boulder County
were ordered to cease issuing same-sex marriage licenses while the
merits are pending before the Colorado Supreme Court.
Request for Temporary Stay
The Attorney General’s alternative request is that this Court stay the
district court’s order temporarily during the time required to consider
this motion has not been opposed. Thus, if this Court requires time
beyond August 25, 2014 to consider this motion, the Attorney General
requests that a temporary stay be entered to preserve the status quo
while this motion is pending. The District Court’s temporary stay will
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expire at 8:00 am on August 25. If this motion is not resolved by that
time, the Attorney General respectfully requests that a temporary stay
be entered. See Evans v. Herbert, No. No. 14-4060 (10th Cir. July 11,
2014) (temporary stays issued pending decision on motion for stay).
Conclusion
The Attorney General hereby requests a stay pending appeal
pursuant to Fed. R. App. P. 8 to preserve the status quo as the state and
federal judicial branches consider the merits of constitutional claims for
same-sex marriage in Colorado.
If necessary, the Attorney General likewise requests temporary stay
pending appeal to cover the time necessary for this Court to deliberate
on the full stay request should this motion still be pending after 8:00 am
on August 25, 2015 when the temporary stay from the district court
expires.
Respectfully Submitted, August 14, 2014.

JOHN W. SUTHERS
Attorney General

/s Michael Francisco
MICHAEL FRANCISCO
Assistant Solicitor General

KATHRYN A. STARNELLA*
Assistant Attorney General
Attorneys for Defendant-Appellant
John Suthers, in his official capacity
as Attorney General of Colorado

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13

Ralph L. Carr Colo. Judicial Ctr.
1300 Broadway, 10th Floor
Denver, Colorado 80203
Telephone: 720-508-6551
Email:michael.francisco@state.co.us;
kathryn.starnella@state.co.us
*Counsel of Record






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CERTIFICATE OF SERVICE
I hereby certify that on August 14, 2014, I electronically filed the foregoing
using the court’s CM/ECF system which will send notification of such filing
counsel for the Plaintiffs-Appellees, and Defendants

/s Michael Francisco
MICHAEL FRANCISCO
Assistant Solicitor General
Attorney for Defendant-Appellant
John Suthers, in his official capacity
as Attorney General of Colorado
Ralph L. Carr Colo. Judicial Center
1300 Broadway, 10th Floor
Denver, Colorado 80203
Telephone: 720-508-6551;
E-Mail: michael.francisco@state.co.us;

CERTIFICATE OF DIGITAL SUBMISSION
AND PRIVACY REDACTIONS
I hereby certify that a copy of the foregoing Reply for Stay Pending
Appeal, as submitted in Digital Form via the court’s ECF system, is an exact
copy of any written document filed with the Clerk and has been scanned for
viruses with the Symantec Endpoint Protection, Version 11.0.7101.1056, and,
according to the program, is free of viruses. In addition, I certify all required
privacy redactions have been made.

/s Michael Francisco
MICHAEL FRANCISCO
Appellate Case: 14-1283 Document: 01019295606 Date Filed: 08/14/2014 Page: 15

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