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IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

VALERIA TANCO and SOPHY JESTY, et al., Plaintiffs-Appellees, vs. WILLIAM EDWARD BILL HASLAM, as Governor of the State of Tennessee, et al., Defendants-Appellants.

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Case No. 14-5297

MOTION OF DEFENDANTS-APPELLANTS FOR STAY PENDING APPEAL Defendants William Edward Bill Haslam, Larry Martin, and Robert E. Cooper, Jr., in their official capacities, have appealed to this Court the March 14, 2014 Order of the United States District Court for the Middle District of Tennessee granting Plaintiffs Motion for Preliminary Injunction. The district courts order enjoined Defendants from enforcing Tennessees Marriage Laws against the six named plaintiffs, Tenn. Const. art. XI, 18, and Tenn. Code Ann. 36-3-113. On March 18, 2014, Defendants moved the District Court, pursuant to Fed. R. Civ. P. 62(c) and Fed. R. App. P. 8(a), for a stay of its order pending appeal. The District Court denied that motion on March 20, 2014.
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Defendants now move this Court, pursuant to Fed. R. App. P. 8(a)(2), for an order staying the Order, Memorandum, and Preliminary Injunction entered by the District Court on March 14, 2014, during the pendency of the appeal to this Court. BACKGROUND Plaintiffs are three same-sex couples married in other states before moving to Tennessee. (R. 29, Motion for Preliminary Injunction). Tennessee law

recognizes marriages only between one man and one woman. See Tenn. Const. art. XI, 18; Tenn. Code Ann. 36-3-113 (collectively, Tennessees Marriage Laws). Plaintiffs filed their complaint on October 21, 2013, claiming that

Tennessees Marriage Laws violated their constitutional rights to equal protection, due process, and travel. (R. 1, Complaint, 8). On November 19, 2013, Plaintiffs filed a motion for preliminary injunction, asking that the District Court compel Defendants to recognize their marriages. (R. 29, 30, Motion and Memorandum for Preliminary Injunction). On March 14, 2014, the District Court issued a

preliminary injunction barring Defendants and those under their supervision from enforcing Tennessees Marriage Laws against the Plaintiffs. (R. 67, 68, 69, Order, Memorandum, and Preliminary Injunction). On March 18, 2014, Defendants filed a notice of appeal to this Court and a motion to stay the preliminary injunction with the District Court pursuant to Fed. R. Civ. P. 62(c) and Fed. R. App. P. 8(a). (R. 72, 73, 74, Notice of Appeal and Motion and Memorandum for Stay Pending
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Appeal). On March 20, 2014, the District Court denied Defendants motion for a stay pending appeal. (R. 78, Order Denying Stay Pending Appeal). The District Court determined that given the unanimity of opinion as to [same -sex marriage] in district courts across the county, the court finds no serious question as to whether this court conducted an appropriate constitutional analysis. (R. 78, Order

Denying Stay Pending Appeal, p. 4). The District Court also determined that there was no risk of irreparable harm to the Defendants, as the injunction was limited to only three same-sex couples. (R. 78, Order Denying Stay Pending Appeal, p. 7). The District Court again ruled that Plaintiffs suffered irreparable harm without the full panoply of rights and peace of mind associated with marriage. (R. 78 , Order Denying Stay Pending Appeal, p. 8). The District Court concluded that Plaintiffs should not be required to jump through hoops to obtain s ome limited measure of security and that the public interest did not weigh in favor of staying a ruling barring enforcement of a state law that the court would likely deem unconstitutional. (R. 78, Order Denying Stay Pending Appeal, pp. 8-9). STANDARD FOR A STAY PENDING APPEAL When considering a stay pending appeal, a court must consider the following factors: (1) whether the defendant has a strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if
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the district court proceedings are not stayed; (3) whether staying the district court proceedings will substantially injure other interested parties; and (4) where the public interest lies. Baker v. Adams County/Ohio Valley School Bd., 310 F.3d 927, 928 (6th Cir. 2002). I. LIKELIHOOD OF SUCCESS ON APPEAL Movants seeking a stay pending appeal need not always establish a high probability of success on the merits but instead must show, at a minimum, the existence of serious questions going to the merits. Grutter v. Bollinger, 247 F.3d 631, 632-33 (6th Cir. 2001) (citing Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153-54 (6th Cir. 1991)). There exists a strong likelihood that Defendants will succeed on appeal. Plaintiffs have alleged violations of their rights to due process, equal protection, and travel. (R. 1, Complaint, 8). However, their claims are based upon an overly broad reading of the Supreme Courts recent decision in United States v. Windsor, 133 S.Ct. 2675 (2013), and an unsupported conclusion that there exists a fundamental right to same-sex marriage. Plaintiffs have asserted that they have a protected liberty interest in their existing marital relationships and that Tennessees Marriage Laws deprive them of that interest. In Windsor, the Supreme Court held invalid Section 3 of the federal Defense of Marriage Act (DOMA), not because the recognition of same-sex
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marriages is required by the Federal Constitution but because the federal government lacks authority to discriminate between opposite-sex and same-sex marriages when both are recognized under a particular states law. See id. at 2694. It was the federal governments depart[ure] from this history and tradition of reliance on state law to define marriage that gave rise to the deprivation that the Court held to be unconstitutional. Id. at 2692. Therefore, Windsor does not render Tennessees Marriage Laws unconstitutional. There exists no constitutional right to same-sex marriage. The concept of same-sex marriage is not deeply rooted in this Nations history and tradition; indeed, same-sex marriage was unknown in the laws of this Nation before 2003. See Windsor, 133 S.Ct. at 2715 (Alito, J., dissenting). Supreme Court decisions recognizing a fundamental right to marriage all involved marriage with a qualified person of the opposite sex. See Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1095 (D. Haw. 2012). Further, with regard to Plaintiffs due-process and equal-protection claims, Tennessee has a rational basis to limit marriage to opposite-sex couples. A

traditional purpose for the institution of marriage was to ensure that procreation would occur only within the confines of a stable family unit. See Noah Webster, An American Dictionary of the English Language 897 (1st ed. 1828) (marriage was instituted . . . for the purpose of preventing the promiscuous intercourse of
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the sexes, for promoting domestic felicity, and for securing the maintenance and education of children); see also Windsor, 133 S.Ct. at 2718 (Alito, J., dissenting) (there is no doubt that, throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship). Tennessee certainly has a legitimate interest in promoting family continuity and stability. See

Nordinger v. Hahn, 505 U.S. 1, 17 (1992); see also Citizens for Equal Protection v. Bruning, 455 F.3d 859, 864-869 (8th Cir. 2006) (finding that Nebraskas laws recognizing that only marriage between a man and a women is valid are rationally related to legitimate state interests, such as encouraging procreation to take place within marriage, and did not violate the Equal Protection Clause). Given that [s]ame-sex couples cannot naturally procreate, Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1112 (D. Haw. 2012), there is certainly nothing irrational about limiting the institution of marriage to the purpose for which it was created, by embracing its traditional definition. See Johnson v. Robinson, 415 U.S. 361, 383 (1974) (rational basis exists where the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.). In concluding that Defendants were not likely to succeed on the merits, the District Court concluded that [t]he defendants have not persuaded the court that Tennessees Anti-Recognition Laws will likely suffer a different fate than the anti6

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recognition laws struck down and/or enjoined in Bourke, Obergefell, and DeLeon, noting that [d]efendants offer arguments. . . that Anti-Recognition Laws have a rational basis because they futher a states interest in procreation, which is essentially the only rational basis advanced by the defendants here. ( R. 67,

Memorandum on Order for Preliminary Injunction, pp. 13-14). But it is not the Defendants responsibility to prove a rational basis; instead, [t]he existence of facts supporting the legislative judgment is to be presumed. American Exp. Travel Related Services Co., Inc. v. Kentucky, 641 F.3d 685, 693 (6th Cir. 2011) (quoting United States v. Carolene Prods., 304 U.S. 144, 152 (1938)). The

heavy burden of negat[ing] every conceivable basis which might support [the enactment] should have been placed on the Plaintiffs. Id. at 694 (quoting Hadix v. Johnson, 230 F.3d 840, 843 (6th. Cir. 2000)). Other courts that have ruled on the constitutionality of state marriage laws have stayed their ruling, or have had them stayed by a higher court. In Herbert v. Kitchen, No. 2:13-cv-00217 (C.D. Utah Dec. 20, 2013) (R. 48-2), the permanent injunction issued by the district court enjoining Utah from enforcing its ban on same-sex marriage was stayed by the United States Supreme Court without any dissent after the request was referred to the full court by Justice Sotomayor. Herbert v. Kitchen, No. 13A687, 571 U.S. ___, 2014 WL 30367 (Jan. 6, 2014) (copy attached). Consistent with the Supreme Courts issuance of a stay, the
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district courts in De Leon v. Perry, No. SA-13-CA-00982-OLG (W.D. Tex. Feb. 26, 2014) (R. 58-1, Opinion Attachment to Plaintiffs Notice of Filing ); Bostic v. Rainey, No. 2:13-cv-395-JGH (E.D. Va. Feb. 13, 2014) (R. 56-1, Opinion Attachment to Plaintiffs Notice of Filing); and Bishop v. Holder, No. 04-cv-848TCK-TLW (N.D. Okla. Jan. 14, 2014), all stayed their respective decisions. Notably, the District Court for the Western District of Kentucky, whose February 27, 2014 final order the District Court here found especially persuasive (R. 67, Memorandum on Order for Preliminary Injunction, pp. 13-14), recently stayed its final order pending appeal. Love v. Beshear, No. 3:13-CV-750-H (W.D. Ky. Mar. 19, 2014) (copy attached). In so doing, the district court noted that [i]t is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well. Id. at 4. The district court also found, in contrast to the District Court in this matter, that one must admit that the ultimate resolution of these issues is unknown. Id. at 2. That two district courts could reach opposite conclusions regarding the necessity of a stay pending appeal demonstrates that there are serious questions going to the merits. Grutter, 247 F.3d at 632-33. II. IRREPARABLE HARM TO DEFENDANTS The District Courts decision prohibits enforcement of Tennessees definition of marriage, contrary to the democratically chosen public policy of the
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State of Tennessee. For the District Court to override the results of Tennessees valid democratic process constitutes irreparable harm requiring the issuance of a stay pending appeal. As members of the Supreme Court have recently noted, any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable harm. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott , 571 U.S. 506 (2013) (Scalia, J., concurring in denial of application to vacate stay of an injunction) (quoting Maryland v. King, 567 U.S. 1, 3 (2012) (Roberts, C.J., in chambers)). See also New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) (Rehnquist, J., in chambers) (It also seems to me that any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.). The District Court stressed that its injunctive ruling applies only to six Tennessee residents with out-of-state same-sex marriages and that the impact on the State of Tennessee will not be significant. But the District Courts ruling sends the message to all similarly situated residents of Tennessee that they, too, can secure such injunctive relief. Indeed, the District Courts determination of harm to Plaintiffs Kostura and DeKoe rests solely upon the alleged indignities they suffer and the uncertainty of their martial protectionssubjective harms that can arguably be applied to any other same-sex couple with an out-of-state marriage.
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(R. 67, Memorandum on Order for Preliminary Injunction, pp. 15-16). Such harm is insufficient to warrant preliminary injunctive relief, as discussed below, and the district courts ruling to the contrary opens the gates to injunctive relief for future plaintiffs.1 III. LACK OF IRREPARABLE HARM TO PLAINTIFFS Plaintiffs will not be irreparably harmed by a stay pending appeal. Although the District Court has found the circumstances of Plaintiffs Tanco and Jesty particularly compelling, their concerns regarding healthcare decisions arising from the birth of their child can be (or could have been) addressed through legal methods such as powers of attorney and advanced directives. The alleged

irreparable harm that could hypothetically occur during Plaintiff Tancos childbirth could have been obviated had Plaintiffs Jesty and Tanco availed themselves of these protective legal methods, as the Defendants pointed out in the district court. (R. 35, Defendants Response to Motion for Preliminary Injunction). Plaintiffs cannot rely on [their] own [in]action[ ] to create the risk of irreparable injury. Vantico Holdings, S.A. v. Apollo Management, LP, 247 F.Supp.2d 437, 454 (S.D.N.Y. 2003). And their concerns regarding visitation at the University of

The district court expressed no opinion concerning the potential application of its ruling statewide, if these or any other potential plaintiffs were to request broader relief in the future. (R. 67, Memorandum on Order for Preliminary Injunction, n. 4). But the ease with which Plaintiffs DeKoe and Kostura received injunctive relief says otherwise.
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Tennessee Medical Center should unforeseen medical complications arise during childbirth are unfounded: 42 C.F.R. 482.13 requires the Medical Center to inform Plaintiff Tanco of her right to receive the visitors whom he or she designates, including but not limited to, a spouse, a domestic partner (including a same-sex domestic partner), another family member, or a friend. (R. 32-1, 17; R. 32-2, 17, Declarations in Support of Plaintiffs Motion for Preliminary Injunction). Plaintiffs Tanco and Jesty also assert various real-property concerns easily remedied with proper legal planning. (R. 67, Memorandum on Order for Preliminary Injunction, p. 16). This may well be time-consuming and expensive, as the District Court found (R. 67, Memorandum on Order for Preliminary Injunction, p. 16), but the harm is not irreparable. Beyond that, the District Court pointed to the indignity and stigmatization that Plaintiffs experience. (R. 67, Memorandum on Order for Preliminary

Injunction, pp. 15-16). It is well settled that reputational damage falls far short of the type of irreparable injury which is a necessary predicate to issuance of a temporary injunction. Sampson v. Murray, 415 U.S. 61, 88, 91-92 (1974). So too do [m]ere injuries, however substantial, in terms of money, time and energy. Id. at 90. The harm alleged in Plaintiffs declarations, which the District Court

described as dignitary and which would force Plaintiffs to engage in timeconsuming and expensive measures to secure them (R. 67, Memorandum on
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Order for Preliminary Injunction, pp. 15-16), is the kind of harm Sampson says is insufficient. The perceived need for the Plaintiffs to jump through hoops in order to obtain legal protections similar to those associated with marriage (R. 78, Order Denying Stay Pending Appeal, p. 8) is insufficient to stay the enforcement of Tennessee law. IV. PUBLIC INTEREST The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Southern Milk Sales, Inc. v. Martin, 924 F.2d 98 (6th Cir. 1991) (citing University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). But the District Courts preliminary

injunction changes the relative position of the parties and alters the status quo. A stay is necessary to restore them pending appeal, particu larly where the courts order has silenced the valid preference of the people of the State of Tennessee to define marriage within its borders. Likewise, the public interest favors federal courts denying extraordinary injunctive relief that may affect state domestic policy or the good-faith functioning of state officials. See generally Ala. Pub. Serv. Commn v. S. Ry. Co., 341 U.S. 341, 351 (1951) (finding [i]t is in the public interest that federal courts of equity should exercise their discretionary power to grant or withhold relief so as to avoid needless obstruction of the domestic policy of the states.). Accordingly, both the
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public interest and the balance of harm to Tennessee and its citizenry militate in favor of staying the District Court order pending appeal. The District Court for the Western District of Kentuckys decision to stay its final order is instructive here. [T]he public interest is twofold: that the Constitution be upheld, and that changes in the law be implemented consistently and without undue confusion. The Court has concerns about implementing an order which has dramatic effects, and then having that order reversed, which is one possibility. Under such circumstances, rights once granted could be cast in doubt. Love v. Beshear, No. 3:13-CV-750-H, at 2-3 (W.D. Ky. Mar. 19, 2014). Given the uncertainty on an issue that has yet to be considered by this Court, the public interest is best served by maintaining the status quo pending appeal. Respectfully submitted, ROBERT E. COOPER, JR. Attorney General and Reporter JOSEPH F. WHALEN Acting Solicitor General

s/Martha A. Campbell MARTHA A. CAMPBELL #14022 Deputy Attorney General General Civil Division Cordell Hull Building, Second Floor P. O. Box 20207 Nashville, TN 37214 (615) 741-6420 martha.campbell@ag.tn.gov
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CERTIFICATE OF SERVICE I hereby certify that on March , 2014, a copy of the foregoing was filed electronically. Notice of this filing will be sent by operation of the Courts electronic filing system to all parties indicated on the electronic filing receipt. Parties may access this filing through the Courts electronic filing system. Notice of this filing will be sent via first class mail, postage prepaid, to the following parties: Jonathan Scruggs, Esq. Alliance Defending Freedom 1511 N. 90th Street Scottsdale, Arizona 85260 Attorney for Amicus Curiae Family Action Council of Tennessee

s/ Martha A. Campbell MARTHA A. CAMPBELL TBPR# 14022 Office of the Attorney General P.O. Box 20207 Nashville, TN 37202 (615) 741-6420

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