IN THE SUPREME COURT OF THE STATE OF KANSAS STATE OF KANSAS ex rel. DEREK SCHMIDT, Attorney General, Petitioner, v. ORIGINAL ACTION NO. 192,590 ‘Tenth Judicial District and SANDRA. MeCURDY, Clerk of the District Court, ‘Tenth Judicial District, a ) ) ) ) KEVIN P. MORIARTY, Chief Judge, ) ) ) ) ) Respondents.) ) RESPONSE TO MOTION FOR IMMEDIATE TERMINATION OF TEMPORARY STAY Petitioner, State of Kansas, on the relation of Attomey General Derek Schmidt, opposes the motion fax filed earlier today seeking to have the temporary stay originally imposed on October 10 and extended indefinitely by this Court’s order of November 5, 2014 lifted. The motion is based upon mistaken assumptions conceming the status of the preliminary injunction order issued by Judge Crabtree. That injunction is likely either fo be stayed by order of Supreme Court Justice Sonia Sotomayor or overtaken by other events related to the litigation that resulted in its issuance. There is no need for the Kansas Supreme Court fo do anything to “harmonize” its orders with the increasingly divided and unharmonious decisions of the inferior federal courts. ‘The initial refusal of the Tenth Circuit Court of Appeals to grant an emergency stay is not the last word on the subject of appellate stay orders. The defendants in the federal action pending before Judge Crabtree are today filing un application with the Circuit Justice, who has the authority to impose a stay during the pendency of the appeal from the preliminary injunction order herself orto refer the matter to the entire Court for decision. If decision on that application is not made before 5 p.m. on Tuesday November 11, it still may ocenr before the start of business on Wednesday, November 12 and thereby effectively prevent the issuance of the marriage licenses sought by the plaintiffs in that lawsuit. If the application is granted, the federal courts will have harmonized their orders with the orders of this Court and thereby will have obviated the need for any modification of the temporary stay. ‘The motion is based on the crroncous assumption that federal courts across the country are reaching a single harmonious conclusion concerning the constitutionality of laws that probibit same-sex marriage. They are not, as the decisions of the First Circuit Court of Appeals in Massachusetts v. United States Dept. of Health and Human Servs., 682 F.3d 1 (1* Cir, 2012) and the Sixth Circuit Court of Appeals in DeBoer v. Snyder, No. 14-1341, 2014 WL 5748990 (6th Cir. Nov. 6, 2014) demonstrate. The Tenth Circuit Court of Appeals has now pending before it a motion to consider en banc the appeal from the preliminary injunction issued by Judge Crabtree, It has ordered plaintifi’ in that case to file a response to the motion, which is one indicator that the court takes the motion seriously. If en banc consideration is granted, the entire appellate court will have the power to overturn the mistaken conclusions reached in Kitchen y. Herbert, F.3d 1193 (10 Cir, 2014) and Bishop ». Smith, 760 F.3d 1070 (10% Cir. 2014). As the brief previously submitted by Petitioner demonstrated, this Court is not legally obligated to “harmonize” its decisions with the conclusions reached by inferior federal courts. There is no need to rush into a misguided effort to conform to conclusionsthat may well be repudiated by the federal courts that originated them, if only the legal process is allowed to play itself out. The parties to this mandamus proceeding have been ordered to submit additional briefs no later than Friday, November 14. Petitioner plans to file a comprehensive brief that addresses both the law of comity and its application to the circumstances presently confronting the state and federal courts of Kansas and the Tenth Circuit Court of Appeals. There is no reason to abandon deliberation and considered judgment before those briefs are submitted and duly considered. Respectfully Submitted, OFFICE OF THE ATTORNEY GENERAL Seed sa Pa Steve R. Fabert, #10355 Assistant Attorney General Office of the Attomey General 120 8.W. 10th Avenue Topeka, Kansas 66612-1597 Tel: (785) 368-8420 Fax: (785) 296-6296 Email: steve fabert@ag ks.gov Attorney for Petitioner CERTIFICATE OF SERVICE Thereby certify that on this 10% day of November, 2014, two copies of the foregoing Response were deposited in the U.S. mail, first class postage prepaid, addressed to: Curtis L. Tideman Carrie E. Josserand Lathrop & Gage, LC 10851 Mastin Blvd Building 82, Suite 100 Overland Park, Kansas 66210-1669 Attorneys for Respondents