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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA


CHARLOTTE DIVISION


General Synod of The United Church of Christ;
Central Conference of American Rabbis;
Alliance of Baptists, Inc.; Association of
Welcoming & Affirming Baptists; Reverend
Joseph Hoffman; Reverend Nancy Ellett Allison;
Reverend Nathan King; Reverend Nancy Kraft;
Rabbi Jonathan Freirich; Reverend Robin
Tanner; Reverend Mark Ward; Reverend Dr.
Nancy E. Petty; The Very Reverend Todd
Donatelli; The Reverend Canon Thomas
Murphy; Reverend Milly Morrow; Rabbi Lucy
H.F. Dinner; Rabbi Ari N. Margolis; Rabbi Ariel
Edery; Rabbi Eric M. Solomon; Reverend Russ
Dean; Reverend Amy Jacks Dean; Kay Diane
Ansley; Catherine Cathy McGaughey;
Elizabeth Lisa Cloninger; Kathleen Smith;
Shauna Bragan; Stacy Maloney; Cathy Fry;
Joanne Marinaro; Joel Blady; Jeffrey Addy;
Betty Mack; and Carol Taylor;

Plaintiffs,

v.

Roy Cooper, Attorney General of North
Carolina; Drew Reisinger, Register of Deeds for
Buncombe County; Wayne Nixon, Register of
Deeds for Cabarrus County; Tonia Hampton,
Register of Deeds for McDowell County; J. David
Granberry, Register of Deeds for Mecklenburg
County; Laura M. Riddick, Register of Deeds for
Wake County; Ronald L. Moore, Buncombe
County District Attorney; Roxann Vaneekhoven,
Cabarrus County District Attorney; Bradley
Greenway, McDowell County District Attorney;
Andrew Murray, Mecklenburg County District
Attorney; and Ned Mangum, Wake County
District Attorney;

Defendants.
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Civ. No. 3:14-cv-213






Case 3:14-cv-00213-MOC-DLH Document 115 Filed 10/10/14 Page 1 of 6
PLAINTIFFS RESPONSE TO MOTION TO INTERVENE
AND RENEWED REQUEST FOR A PRELIMINARY INJUNCTION

The Court should reject the Motion to Intervene and should instead immediately grant
Plaintiffs motion for a preliminary injunction. The Motion to Intervene rests entirely on the
flawed premise that this Court can simply ignore Bostic despite the fact that it is law of the
Circuit and binding precedent in this action. Moreover, although the proposed Intervenors have
not satisfied Fed. R. Civ. P. 24 and their Motion should be denied, whether they are allowed to
intervene or not is ultimately beside the point as relates to Plaintiffs right to preliminary
injunctive relief. Now that Bostic is final, the individual Plaintiff couples should be permitted to
marry, as the Fourth Circuit has held they are entitled to do under the Fourteenth Amendment.
I. THE COURT SHOULD GRANT PLAINTIFFS MOTION FOR PRELIMINARY
INJUNCTION.

Although the proposed Intervenors have not satisfied Rule 24, their motion should not
delay Plaintiffs immediate right to preliminary injunctive relief. First, Plaintiffs likelihood of
success on the merits has effectively been determined in their favor. The judgment in Bostic is
final, leaving no doubt in the Fourth Circuit that the Fourteenth Amendment protects the right of
same-sex couples--like Plaintiffs--to marry. Moreover, this Court is bound by Bostic. Thus,
whatever reasons the proposed Intervenors have for why they think Bostic is incorrect are
irrelevant at this time (they also fail on the merits, as explained below).
Second, there is no serious dispute by any party or the proposed Intervenors that
Plaintiffs will suffer irreparable harm as a result of the continued enforcement of the
unconstitutional North Carolina Marriage Laws. The proposed Intervenors make no such
arguments and only incorporate by reference the responses filed by the Defendants to the Motion
Case 3:14-cv-00213-MOC-DLH Document 115 Filed 10/10/14 Page 2 of 6
for Preliminary Injunction which likewise failed to contest Plaintiffs showing of irreparable
harm as relates to their Fourteenth Amendment claim.
Accordingly, even if the Court grants the Motion to Intervene, no reason has been
presented by any party or by the proposed Intervenors why the Court should not grant Plaintiffs
request for a preliminary injunction.
II. THE PROPOSED INTERVENORS DO NOT SATISFY FED. R. CIV. P. 24.
Rule 24 expressly states that a motion to intervene must be accompanied by a pleading
that sets out the claim or defense for the intervention is sought. Notwithstanding this Rules
clarity, the proposed Intervenors filed no such pleading and instead asked for additional time to
do so while adopting by reference the prior responses to the motion for a preliminary injunction
filed by the Defendants. But briefs are not pleadings, and Rule 24 requires that a pleading be
submitted with the motion. Moreover, the Court should reject the argument of the proposed
Intervenors that they did not know until this week that the Attorney General would abandon
the defense of the states unlawful marriage laws. To the contrary, in their Memorandum of Law
[D.E. 108, at 7], they quote from the Attorney Generals detailed public statement on July 28
explaining that he would abide by Bostic and not oppose the case going forward. Thus,, they
admit to knowing from the day the Fourth Circuit decided Bostic several months ago that the
Attorney General did not intend to defend this lawsuit on the merits and yet made no effort to
find counsel much less to intervene.
Moreover, the grounds for intervention present issues that can only be resolved by the
Fourth Circuit, and not this Court. According to the proposed Intervenors, Bostic was decided by
two outcome determinative concessions by Virginias Attorney General: (1) that Baker v.
Nelson, 409 U.S. 810 (1972) was no longer binding precedent in Bostic; and (2) that heightened
Case 3:14-cv-00213-MOC-DLH Document 115 Filed 10/10/14 Page 3 of 6
scrutiny applies to the due process claim of a right to marry. However, a cursory review of
Bostic and the parties briefs in Bostic shows that the proposed Intervenors arguments are both
disingenuous and meritless. Nowhere in any Bostic decision did any Fourth Circuit judge
suggest, let alone find, that those two issueswhether Baker controlled and the level of review
that appliedwere decided against the Commonwealth of Virginia because of any position
espoused (or abandoned) by the Attorney General. In fact, the same positions that the proposed
Intervenors seek to make in this Court were fully presented to and rejected by the Fourth Circuit.
Critically, however, the proposed Intervenors overlook that Bostic is law of the Circuit
and binding in this Court. To the extent they wish to rehash arguments that were considered and
rejected in Bostic, they must direct their arguments to the Fourth Circuit. In the meantime, the
Court should at the very least grant Plaintiffs Motion for Preliminary Injunction in order to
prevent any further violation of the fundamental right of Plaintiffs and thousands of other North
Carolina citizens to marry.

Case 3:14-cv-00213-MOC-DLH Document 115 Filed 10/10/14 Page 4 of 6

Dated: October 10, 2014

Jonathan S. Martel
David J. Weiner
Samuel Witten
Sarah E. Warlick
Thomas A. Glazer
Arnold & Porter LLP
555 Twelfth Street, N.W.
Washington, D.C. 20004
Phone: (202) 942-5470
Fax: (202) 942-5999
Email: jonathan.martel@aporter.com
Admitted Pro Hac Vice

Sean Morris
Arnold & Porter LLP
777 South Figueroa St.
Los Angeles, CA 90017
Phone: (213) 243-4222
Email: sean.morris@aporter.com
Admitted Pro Hac Vice



Respectfully submitted,

/s/ S. Luke Largess
S. Luke Largess
/s/ Jacob H. Sussman
Jacob Sussman
/s/ John W. Gresham
John W. Gresham
Tin Fulton Walker & Owen
301 East Park Avenue
Charlotte, NC 28203
Phone: (704) 338-1220
Fax: (704) 338-1312
Email: llargess@tinfulton.com
Email: jsussman@tinfulton.com
Email: jgresham@tinfulton.com

Mark Kleinschmidt
Tin Fulton Walker & Owen
312 West Franklin Street
Chapel Hill NC 27516
Phone: (919) 240-7089
Fax: (919) 240-7822
Email: mkleinschmidt@tinfulton.com


ATTORNEYS FOR PLAINTIFFS

Case 3:14-cv-00213-MOC-DLH Document 115 Filed 10/10/14 Page 5 of 6
CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Motion with the Clerk of the
Court using the CM/ECF system, which will send notification of such filing to all counsel of
record.
Dated: October 10, 2014

/s/ Jacob H. Sussman
Jacob H. Sussman
Tin Fulton Walker & Owen
301 East Park Avenue
Charlotte, NC 28203
Phone: (704) 338-1220
Fax: (704) 338-1312
Email: jsussman@tinfulton.com




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