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No. 14-31037
In the United States Court of Appeals for the Fifth Circuit
JONATHAN P. ROBICHEAUX, et al.,
Appellants,
v.

JAMES D. CALDWELL, et al.,
Appellees
______________________
APPELLEES’ UNOPPOSED MOTION
TO EXPEDITE BRIEFING AND ORAL ARGUMENT
______________________
Pursuant to Fifth Circuit Rule 34.5, Appellees ask the Court to set
an abbreviated briefing schedule in this appeal and to advance it for
argument at the same time and before the same panel as the pending
appeal in De Leon v. Perry, No. 14-50196. See 5TH CIR. R. 34.5
(providing the Court may “for good cause on motion of either party …
advance any case for argument, and prescribe an abbreviated briefing
schedule”). There is extraordinary cause for this motion: unless briefing
and argument are expedited, the constitutional validity of Louisiana’s
marriage laws will be settled by the De Leon appeal, which involves the
validity of Texas’s marriage laws. Appellants do not oppose this motion.
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1. This appeal arises from Judge Martin L.C. Feldman’s decision
upholding Louisiana’s marriage laws against constitutional challenge
under the Fourteenth Amendment. Robicheaux v. Caldwell, __
F.Supp.2d __, 2014 WL 4347099 (E.D. La. Sept. 3, 2014), appeals
docketed, No. 14-31037 (5th Cir. Sept. 3-4, 2014). That decision is the
mirror opposite of the De Leon decision from the Western District of
Texas, which enjoined Texas’s marriage laws under the Fourteenth
Amendment. De Leon v. Perry, 975 F.Supp.2d 632 (W.D. Tex. 2014),
appeal docketed, No. 14-50196 (5th Cir. Mar. 1, 2014). De Leon will be
fully briefed by October 10 but has not been set for argument. Because a
decision in De Leon will impact Louisiana’s marriage laws, Appellees
move to expedite briefing and argument in Robicheaux so that the
Court may hear argument by the same panel as De Leon and dispose of
the appeals at the same time. (Appellees do not, however, ask that this
appeal be consolidated with De Leon).
2. The lower court decisions in Robicheaux and De Leon address
identical constitutional claims against substantively identical state
marriage laws. Compare Robicheaux, 2014 WL 4347099, at *1 (noting
Plaintiffs’ claims that Louisiana’s refusal to license or recognize same-
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sex marriages violates equal protection and due process), with De Leon,
975 F.Supp.2d at 639 (noting identical claims against Texas’s marriage
laws). The two decisions reach opposite conclusions: Robicheaux ruled
that Louisiana’s retention of the man-woman definition of marriage in
2004 did not offend the Fourteenth Amendment; De Leon ruled that the
same policy decision by Texas in 2005 violated the Fourteenth
Amendment. Compare Robicheaux, 2014 WL 4347099, at *12
(concluding Louisiana’s marriage laws “do not infringe the guarantees
of the Equal Protection and Due Process Clauses”), with De Leon, 975
F.Supp.2d at 666 (concluding Texas’s marriage laws “violate[ ]
Plaintiffs’ equal protection and due process rights”). Both decisions
cannot be correct, and resolving one will effectively settle the other.
3. Hearing the two appeals by the same panel is consistent with
recent practice in other Circuits. As this Court is well aware, the
constitutionality of state marriage laws is the subject of a remarkable
wave of national litigation. Since the Supreme Court’s decision in
United States v. Windsor, 133 S. Ct. 2675 (2013), numerous federal
court decisions have invalidated state marriage laws, with Louisiana
the only exception. See Robicheaux, 2014 WL at 4347099, at *5 n.9
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(acknowledging its decision upholding Louisiana’s marriage laws “runs
counter to” 15 post-Windsor federal decisions) (and collecting cases).
Three Circuits (the Tenth, Fourth, and Seventh) have already rendered
decisions,
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and two others (the Sixth and Ninth) have heard argument
but not yet rendered decisions.
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The Tenth heard appeals from Utah
and Oklahoma within one week of each other on April 10 and 17, 2014.
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The Sixth heard appeals from four States (Ohio, Michigan, Tennessee,
and Kentucky) on August 6, 2014.
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The Seventh heard appeals from two
States (Indiana and Wisconsin) on August 26, 2014.
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And the Ninth
heard appeals from three States (Nevada, Idaho, and Oregon) on

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See Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), cert. filed Aug. 5, 2014
(No. 14-124); Bishop v. Smith, __ F.3d __, 2014 WL 3537847 (10th Cir. July 18,
2014), cert. filed Aug. 6, 2014 (No. 14-136); Schaefer v. Bostic, __ F.3d __, 2014
3702493 (4th Cir. July 28, 2014), cert. filed Aug. 8, 2014 (No. 14-153), Aug. 22, 2014
(No. 14-225), Aug. 29, 2014 (No. 14-251); Baskin v. Bogan, __ F.3d __, 2014 WL
4359059 (7th Cir. Sept. 4, 2014), cert. filed Sept. 9, 2014 (Nos. 14-277, 14-278).
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See DeBoer v. Snyder, No. 14-1341 (6th Cir.) (Michigan); Obergefell v. Himes, No.
14-3057 (6th Cir.) (Ohio); Henry v. Himes, No. 14-3464 (6th Cir.) (Ohio); Bourke v.
Beshear, No. 14-5291 (6th Cir.) (Kentucky); Tanco v. Haslam, No. 14-5297 (6th Cir.)
(Tennessee).
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See Order in Kitchen v. Herbert, No. 13-4178 (10th Cir.) (argued April 10, 2014);
Order in Bishop v. Smith, No. 14-5003 (10th Cir.) (argued April 17, 2014).
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See U.S. Court of Appeals for the Sixth Circuit, Courtroom Audio (Aug. 6, 2014
listing consecutive arguments in Nos. 14-5297, 14-5291, 14-3057, and 14-1341),
available at http://www.ca6.uscourts.gov/internet/court_audio/aud1 .php.
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See Dkt. Nos. 164, 165 in Wolf v. Walker, No. 14-2526 (argued Aug. 26, 2014);
Dkt. Nos. 210, 211 in Baskin v. Bogan, No. 14-2386 (argued Aug. 26, 2014).
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September 9, 2014.
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This Court should follow the example of these other
Circuits and schedule argument in the Louisiana and Texas cases
before the same panel and dispose of them at the same time.
4. Doing so will require the Court to expedite briefing and argument
in Robicheaux. The Court docketed the appeals in that case on
September 3 and 4, and has not yet set a briefing schedule, whereas the
De Leon appeal will complete briefing on October 10. To sync the two
appeals, Appellees urge the Court to set an abbreviated briefing
schedule as suggested below. See ¶7, infra.
5. Doing so is justified by the extraordinary stakes in this appeal.
Appellants press what they consider fundamental claims of individual
liberty under the Fourteenth Amendment. See, e.g., Robicheaux, 2014
WL 4347099, at *2 (observing Plaintiffs “vigorously submit if two people
wish to enter into a bond of commitment and care … their choice should
be recognized by law as a marriage”). Appellees press what they
consider fundamental claims of sovereignty and democratic legitimacy.

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See U.S. Court of Appeals for the Ninth Circuit, Oral Argument Calendar for
Sept. 8-12, 2014 (scheduling for Sept. 9 session appeals in Latta v. Otter, Nos. 14-
35420 and 14-35421; Sevcik v. Sandoval, No. 12-17668; and Jackson v. Abercrombie,
Nos. 12-16995 and 12-16998), available at http://www.ca9.
uscourts.gov/calendar/view.php?hearing=September%20-%20San%20Francisco,%20
California&dates=8-12,%2015-19&year=2014.
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See, e.g., id. (observing Defendants “maintain that marriage is a
legitimate concern of state law and policy” and “may be rightly
regulated because of what for centuries has been understood to be its
role”). Whoever is right, both sides deserve to have their arguments
determined on their own merits and not by another appeal.
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6. In Appellees’ view, an abbreviated briefing schedule will not
prejudice either party. In the lower court, each side extensively briefed
the issues on summary judgment. Adapting those briefs for this Court
will not involve an extraordinary amount of effort. And whatever effort
is involved is surely justified in order to have issues of this magnitude
considered in a timely manner. Furthermore, the numerous amicus
briefs already filed in De Leon will be equally relevant to this appeal.
7. In light of these considerations, Appellees propose the following
abbreviated briefing schedule:
Appellants’ Opening Brief: Friday, October 17, 2014
Appellees’ Brief: Friday, October 31, 2014
Appellants’ Reply Brief: Friday, November 7, 2014

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Appellees acknowledge that the Court denied Appellees’ motion to expedite in De
Leon. See Order in No. 14-50196 (May 21, 2014). The circumstances here are
different, however. Unless this appeal is expedited, the validity of Louisiana’s
marriage laws will be determined by another pending appeal. That was not the case
in De Leon.
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This abbreviated schedule is contingent on the district court record
being lodged in this Court by October 1, 2014.
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8. The Court has already scheduled arguments in other cases for the
October 6-9 session, but has not yet set argument in De Leon.
Consequently, the proposed briefing schedule would allow briefing in
Robicheaux to be completed in time for the November argument
calendar, when the Court will presumably schedule De Leon.
9. Appellees do not lightly make a motion of this extraordinary
nature, nor do they wish to interfere with the usual order of the Court’s
business. But the magnitude of the issues at stake—to both sides—is
inescapable. Appellees therefore respectfully urge the Court to expedite
briefing and argument in this appeal so that the validity of Louisiana’s
marriage laws may stand or fall on their own merits.
10. Undersigned counsel for Appellees has consulted with
Appellants’ counsel and confirms that Appellants do not oppose this
motion. Appellants agree with the abbreviated briefing schedule set

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The transcript of the June 25, 2014 summary judgment hearing has already
been completed, and the parties are awaiting transcription only of the March 14,
2014 status conference.
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forth herein and also agree that this appeal should be set at the same
time and heard by the same panel as De Leon.
Respectfully submitted,
s/ S. Kyle Duncan
S. Kyle Duncan (La. Bar No. 25038)
DUNCAN PLLC
1629 K Street, N.W., Suite 300
Washington, D.C. 20006
Tel: 202-714-9492
kduncan@duncanpllc.com

J. Michael Johnson
Law Offices of Mike Johnson, LLC
2250 Hospital Drive
Beene Office Park, Suite 248
Bossier City, LA 71111
Tel: 318-658-9456

Counsel for Appellees


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CERTIFICATE OF SERVICE
I certify that I filed this motion with the Court’s CM/ECF system on
September 19, 2014, which will automatically send an electronic notice
of filing to Appellants’ counsel of record:

J. Dalton Courson
Lesli D. Harris
STONE PIGMAN WALTHER WITTMANN, L.L.C.
546 Carondelet Street
New Orleans, LA 70130
Tel: 504-593-0812
Fax: 504-596-0812
dcourson@stonepigman.com

Richard G. Perque
700 Camp Street
New Orleans, LA 70130
Tel: 504-681-2003
Fax: 504-681-2004
richard@perquelaw.com

Scott J. Spivey, Esq., General Counsel
HAMMERMAN & GAINER, INC.
1980 W. Main Street, Suite D
Lutcher, LA 70119-0000
Tel: 504-684-4904
Fax: 888-502-3935
scott@spiveyesq.com

Counsel for Appellants

s/ S. Kyle Duncan
S. Kyle Duncan
Counsel for Appellees

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