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Record Nos. 14-1167 (L), 14-1169, 14-1173 _________________________________ UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT __________ TIMOTHY B. BOSTIC; TONY C. LONDON; CAROL SCHALL; and MARY TOWNLEY, Plaintiffs Appellees, v. GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court; and JANET M. RAINEY, in her official capacity as State Registrar of Vital Records, Defendants Appellants, MICHLE McQUIGG, in her official capacity as the Clerk of Court for Prince William County Circuit Court, Intervenor Appellant. ________________ Appeal from the United States District Court for the Eastern District of Virginia (Norfolk Division) _________________ CONSENT MOTION TO APPROVE THE PARTIES PROPOSED EXPEDITED BRIEFING SCHEDULE AND TO SET CASE ON THE MAY 13-15, 2014 ARGUMENT CALENDAR The Attorney General of Virginia, on behalf of Appellant Janet M. Rainey, in her official capacity as the State Registrar of Vital Records for the

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Commonwealth of Virginia, moves this Court, under Local Rules 12(c) and 28(a), to approve the parties proposed expedited briefing schedule and to set this matter for oral argument during the May 13-15, 2014 Argument Session. All parties further move this Court for leave to file separate briefs pursuant to Local Rules 28(a) and 28(d). Counsel for all parties join in this request. This consent motion should be granted for the following reasons: BACKGROUND 1. These consolidated appeals arise from the February 24, 2014 final

judgment of the United States District Court for the Eastern District of Virginia, the Hon. Arenda L. Wright Allen presiding, declaring that Virginias marriage laws are facially unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution to the extent they deny the rights of marriage to same-sex couples or recognition of lawful marriages between same-sex couples that are validly entered into in other jurisdictions. (No. 2:13-cv-00395-ALWA (ECF# 139 1).) A copy of the Judgment is attached as Exhibit 1. A copy of the District Courts Memorandum Opinion and Order of February 14, 2014, on which the Judgment is based, is attached as Exhibit 2. (No. 2:13-cv-00395-ALWA (ECF# 136).) 2. The District Court enjoined the defendants and the intervenor from

enforcing: Article I, 15-A, of the Constitution of Virginia; Virginia Code 202

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45.2; Virginia Code 20-45.3; and any other Virginia law if and to the extent that it denies to same-sex couples the rights and privileges of marriage that are afforded to opposite-sex couples. (Ex. 1, 2.) The Court stayed the effect of the judgment and the injunction pending final disposition by the United States Court of Appeals for the Fourth Circuit of the forthcoming appeal. (Id. 3.) 3. The alignment of the parties on appeal is affected by a change in legal

position by the Commonwealth of Virginia in the District Court. The Attorney General of Virginia, Mark R. Herring, following his inauguration on January 11, 2014, notified the District Court in connection with the then-pending cross-motions for summary judgment that he was changing the Commonwealths legal position with regard to the constitutionality of Virginias ban on same-sex marriage. (ECF# 96, 96-1.) The Attorney General advised the District Court that Defendant Rainey: would no longer defend the constitutionality of Virginias same-sexmarriage ban; would argue that the ban violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; would continue to enforce the ban until there could be a definitive ruling by the judicial branch; and would work to ensure that both sides of the issue are responsibly and vigorously briefed and argued before the courts to facilitate a decision on the merits, consistent with the rule of law. (ECF# 96; ECF# 96-1 at 3 of 25.)

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In light of the important constitutional questions involved, the Attorney General urged the District Court to adjudicate the merits of this case as rapidly as its fairminded consideration will permit. (ECF# 96-1 at 24 of 25.) 4. Despite the change in legal position by the Attorney General on behalf

of Defendant Rainey, two circuit court clerks continued to vigorously defend the constitutionality of Virginias marriage laws: Defendant George E. Schaefer, III, in his official capacity as the Clerk of the Circuit Court for the City of Norfolk; and Intervenor Michle McQuigg, in her official capacity as the Clerk of the Circuit Court for Prince William County. Clerk McGuigg was also granted leave to adopt the legal arguments and briefing of the previous Attorney General and Solicitor General of Virginia. 5. On February 4, 2014, Judge Wright Allen heard two hours of oral

argument, allotting 30 minutes each to counsel for Plaintiffs, Defendant Rainey, Clerk Schaefer, and Clerk McQuigg. 6. The District Court issued its Opinion and Order on February 13, 2014

(Doc. 135), as amended February 14, 2014 (Doc. 136) (Ex. 2), and the Judgment described above was entered on February 24, 2014 (Doc. 139) (Ex. 1). 7. Notices of appeal were promptly filed by: Defendant Schaefer (No. 14-1167(L)); Defendant Rainey (No. 14-1169); and 4

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Intervenor McQuigg (No. 14-1173). 8. Although the Attorney General, on behalf of Defendant Rainey,

agreed with Plaintiffs that Virginias laws denying marriage rights to same-sex couples violate the Fourteenth Amendment, he filed a notice of appeal from the Judgment below because the Commonwealths position is that it will continue to enforce those laws until the judicial branch can issue a definitive ruling on their constitutionality. Accord United States v. Windsor, 133 S. Ct. 2675, 2686-87 (2013) (In short, even where the Government largely agree[s] with the opposing party on the merits of the controversy, there is sufficient adverseness and an adequate basis for jurisdiction in the fact that the Government intended to enforce the challenged law against that party.) (quoting INS v. Chadha, 462 U.S. 919, 940 n.12). 9. By contrast, Appellants Schaefer and McQuigg defended the legality

of Virginias same-sex marriage ban in the District Court and will continue to do so on appeal. But while Rainey, Schaefer and McQuigg are all formally Appellants here, Raineys position on the merits is substantially aligned with that of the Bostic Appellees, who prevailed in the District Court. THE PARTIES PROPOSED BRIEFING SCHEDULE AND REQUEST FOR ORAL ARGUMENT DURING THE MAY 13-15, 2014 SESSION 10. All three appeals have been consolidated in this Court and the

Briefing Order currently calls for filing the Opening Brief and Appendix on 5

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April 7, 2014; the Response brief on May 9, 2014; and the Reply Brief 14 days thereafter. (Doc. 4.) Unfortunately, the current schedule would not permit this case to be heard during the Courts May 13-15 argument session. 11. In light of the critically important constitutional issues involved and

the interests of all parties in obtaining a speedy determination whether Virginia must afford marriage rights on an equal basis to same-sex couples, counsel for the parties propose the following expedited briefing schedule and word limits, which will enable this Court to hear oral argument during its May 13-15 session: Appendix due: Opening briefs due: (Appellants Schaefer and McQuigg) (not to exceed 14,000 words each) Response briefs due: (Bostic Appellees and Appellant Rainey) (not to exceed 14,000 words each) Reply briefs due: (Appellants Schaefer and McQuigg) (not to exceed 7,000 words each) 03/28/2014 03/28/2014

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04/30/2014

THE PARTIES PROPOSAL CONCERNING SEPARATE BRIEFS AND WORD LIMITS 12. Because the Bostic Appellees and Appellant Rainey agree that

Virginias denial of marriage rights to same-sex couples is unconstitutional, it is appropriate for them to brief that issue in response to the opening briefing by 6

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Appellants Schaefer and McQuigg. But good cause exists to permit Rainey and Bostic to file separate briefs: a. In representing Appellant Rainey the State Registrar of Vital

Records in her official capacity the Attorney General of Virginia speaks here on behalf of the Commonwealth of Virginia as a sovereign State. The Attorney General, who has a sworn duty to support both the U.S. Constitution and the Constitution of Virginia, has a unique interest in articulating his analysis why Article I, 15-A, of Virginias Constitution, approved by the electorate in 2006, violates the Fourteenth Amendment. The Bostic Appellees, by contrast, do not speak on behalf of a sovereign; they have taken no oath of office. Hollingsworth v. Perry, 133 S. Ct. 2652, 2667 (2013). b. Moreover, the Commonwealths interests diverge from the

Bostic Appellees position in important respects. First, the Bostic Appellees have a pending claim for attorneys fees under 42 U.S.C. 1988, an issue that the District Court reserved until the appeals have run their course. (No. 2:13-cv-00395-ALWA (ECF# 139 4).) It is awkward to require parties to join in a single brief in a situation where one may well be asking the other to pay the legal expense for doing so. Second, the Bostic Appellees oppose any stay pending appeal, 7

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while the Attorney Generals position is that the Commonwealth will continue to enforce Virginias existing marriage ban until the matter can be definitively adjudicated. That disagreement may well put them at odds with one another with regard to remedial issues in this Court as well. c. In addition, as an Appellant, Rainey must include in her brief a

discussion of why her appeal is justiciable, notwithstanding that the Attorney General, like the United States in Windsor, largely agree[s] with the opposing party on the merits of the controversy. 133 S. Ct. at 2686-87. As Appellees, by contrast, the Bostic Plaintiffs will not be required to address that subject. 13. Accordingly, the Attorney General and counsel for the Bostic

Appellees respectfully request leave to file separate briefs in response to the Clerks opening briefing. They propose the 14,000-word limits specified in Fed. R. App. P. 32(a)(7)(B)(i). This word limit is substantially less than the expanded, 24,000-word limit allowed by the United States Court of Appeals for the Tenth Circuit for the opening and response briefs in Kitchen v. Herbert, No. 13-4178 (10th Cir.) (Orders of Jan. 30, 2014, and Feb. 10, 2014), involving an appeal from the decision of the U.S. District Court for the District of Utah striking down that States constitutional ban on same-sex marriage. 8

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14.

Counsel for Defendant Schaefer and Intervenor McQuigg submit that

good cause also exists for them to file either separate opening briefs and separate reply briefs. Although the interests of Defendant Schaefer and Intervenor McQuigg are not adverse, their interests and arguments are not completely aligned. Defendant Schaefer and Intervenor McQuigg, as evidenced by the briefs and arguments presented at the District Court, do not agree on all arguments in support of the constitutionality of Virginias marriage laws. For example, Clerk McQuigg seeks to advance arguments in favor of Virginias marriage laws that will not be advanced by Clerk Schaefer, such as myriad rational bases that she contends support those laws. And Defendant Schaefer raised arguments in the District Court concerning the Plaintiffs standing that were not joined by Intervenor McQuigg. Allowing separate briefs by these parties will ensure that all sides of the argument in favor of upholding Virginias marriage laws are fully presented to this Court. If permitted to file separate briefs, counsel for Defendant Schaefer and Intervenor McQuigg have represented that they will coordinate the drafting of their respective briefs to avoid duplicative arguments. Given the importance of the issue before the Court, Defendant Schaefer and Intervenor McQuigg contend that good cause exists for their request to file separate briefs.

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15.

Having conferred in an effort to streamline and expedite this appeal,

all parties are agreeable to the schedule, alignment, and briefing limits proposed in this consent motion. WHEREFORE the Court should grant this consent motion, direct that this matter be set on the May 13-15, 2014 argument calendar, and issue a revised briefing schedule as follows: Appendix due: Opening briefs due: (Appellants Schaefer and McQuigg) (not to exceed 14,000 words each) Response briefs due: (Bostic Appellees and Appellant Rainey) (not to exceed 14,000 words each) Reply briefs due: (Appellants Schaefer and McQuigg) (not to exceed 7,000 words each) 03/28/2014 03/28/2014

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Respectfully submitted, JANET M. RAINEY, in her official capacity, /s/ Stuart A. Raphael VSB #30380 Solicitor General of Virginia 900 East Main Street Richmond, Virginia 23219 (804) 786-7240 Telephone 10

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(804) 371-0200 Facsimile sraphael@oag.state.va.us Mark R. Herring Attorney General of Virginia Cynthia E. Hudson Chief Deputy Attorney General H. Lane Kneedler, VSB #007722 Senior Counsel Rhodes B. Ritenour, VSB #71406 Deputy Attorney General E-mail: rritenour@oag.state.va.us Trevor S. Cox, VSB #78396 Deputy Solicitor General E-mail: tcox@oag.state.va.us

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CERTIFICATE OF SERVICE I hereby certify that on February 27, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a copy to registered users, and served a copy by first-class mail, postage prepaid, on non-registered counsel at the addresses listed below: Mr. Jeffrey Franklin Brooke POOLE MAHONEY, PC Suite 100 4705 Columbus Street Virginia Beach, VA 23462-6749 Mr. William Anthony Isaacson BOIES, SCHILLER & FLEXNER LLP Suite 800 5301 Wisconsin Avenue, NW Washington, DC 20015-0000 Mr. Byron Jeffords Babione ALLIANCE DEFENSE FUND 15100 North 90th Street Scottsdale, AZ 85260-0000 Mr. Robert Brian Silver BOIES, SCHILLER & FLEXNER, LLP 7th Floor 575 Lexington Avenue New York, NY 10022-0000 Mr. Jordan Woodard Lorence ALLIANCE DEFENDING FREEDOM Suite 509 801 G Street, NW Washington, DC 20001-0000 Chantale Fiebig GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Avenue, NW Washington, DC 20036-0000 Amir Cameron Tayrani GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Avenue, NW Washington, DC 20036-0000 Matthew D. McGill GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Avenue, NW Washington, DC 20036-0000

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Joshua I. Schiller BOIES, SCHILLER & FLEXNER, LLP 7th Floor 575 Lexington Avenue New York, NY 10022-0000 Erik C. Porcaro SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK, PC Suite 300 4525 South Boulevard Virginia Beach, VA 23452-0000 Jeremy Michael Goldman BOIES, SCHILLER & FLEXNER LLP Suite 900 1999 Harrison Street Oakland, CA 94612

Robert E. Ruloff SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK, PC Suite 300 4525 South Boulevard Virginia Beach, VA 23452-0000 Jonathan Caleb Dalton ALLIANCE DEFENSE FUND 15100 North 90th Street Scottsdale, AZ 85260-0000 Kenneth John Connelly ALLIANCE DEFENSE FUND 15100 North 90th Street Scottsdale, AZ 85260-0000

/s/ Stuart A. Raphael

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