i

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARSHA CASPAR, GLENNA
DEJ ONG, CLINT McCORMACK,
BRYAN REAMER, FRANK
COLASONTI, J R., J AMES BARCLAY
RYDER, SAMANTHA WOLF,
MARTHA RUTLEDGE, J AMES
ANTEAU, J ARED HADDOCK,
KELLY CALLISON, ANNE
CALLISON, BIANCA RACINE,
CARRIE MILLER, MARTIN
CONTRERAS, and KEITH ORR,

Plaintiffs,

vs.

RICK SNYDER, in his official capacity
as Governor of the State of Michigan,
MAURA CORRIGAN, in her official
capacity as Director of the Michigan
Department of Human Services,
PHIL STODDARD, in his official
capacity as Director of the Michigan
Office of Retirement Services, and
J AMES HAVEMAN, in his official
capacity as Director of the Michigan
Department of Community Health,

Defendants.
/



Case No. 14-cv-11499

Hon. Mark A. Goldsmith


REPLY BRIEF IN SUPPORT OF PLAINTIFFS
MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................... 1
ARGUMENT .................................................................................................. 1
I. THE SIXTH CIRCUIT DID NOT TELL DEFENDANTS TO
SUSPEND PLAINTIFFS MARRIAGES. .......................................... 1
II. PLAINTIFFS SATISFY ALL REQUIREMENTS FOR A
PRELIMINARY INJ UNCTION. ......................................................... 3
A. Plaintiffs Likelihood of Success on the Merits Is the
Predominant Factor in Deciding Their Request for
Preliminary Relief. ........................................................................ 3
B. The Irreparable Harm Inflicted on Plaintiffs and the Public
Far Outweighs Defendants Desire to Put Off Complying with
the Constitution for as Long as Possible. ..................................... 3
C. Plaintiffs Have Not Waived their Right to Relief. ....................... 5
III. PRELIMINARY RELIEF SHOULD BE GRANTED TO ALL
SIMILARLY SITUATED MICHIGANDERS, REGARDLESS OF
WHETHER THEY ARE PARTIES TO THIS CASE. ........................ 5
CONCLUSION ............................................................................................... 7

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INTRODUCTION

Plaintiffs have moved for a preliminary injunction protecting their
marriages from further interference. Defendants response boils down to three
points. First, the Sixth Circuit made them do it. Second, Plaintiffs dont have it that
bad. Third, Plaintiffs brought this on themselves by getting married in the first
place. None of these responses holds water. The Court should also reject
Defendants proposal to limit injunctive relief to the eight plaintiff couples, leaving
some 300 other same-sex couples adrift in stigma and uncertainty.
ARGUMENT

I. THE SIXTH CIRCUIT DID NOT TELL DEFENDANTS TO
SUSPEND PLAINTIFFS MARRIAGES.
The Sixth Circuit has squarely rejected Defendants suggestion that courts
particularly disfavor preliminary injunctions that would alter the status quo:
We . . . see little consequential importance to the concept of the
status quo, and conclude that the distinction between mandatory
and prohibitory injunctive relief is not meaningful.
Accordingly, . . . the traditional preliminary injunctive
standardthe balancing of equitiesapplies to motions for
mandatory preliminary injunctive relief as well as motions for
prohibitory preliminary injunctive relief.
United Food & Commercial Workers Union v. Sw. Ohio Reg'l Transit Auth., 163
F.3d 341, 348 (6th Cir. 1998).
Even if the concept of status quo were relevant, which it is not,
Defendants misunderstand its definition. They argue, for example, that the Sixth
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Circuit has since preserved the pre-DeBoer status quo by reinstating the [Marriage]
Amendment. (Resp. to PI 9.) Thats accurate, but Defendants misunderstand what
that status quo entailed. The status quo is and always has been that people are
constitutionally entitled to remain in their valid in-state marriages.
Before the injunction in DeBoer, two things were true:
(i) Same-sex couples were prohibited from getting married in Michigan
(Mich. Const. art. I 24); and
(ii) People in a validly solemnized Michigan marriage were
constitutionally entitled to remain married in this state (Mot for PI 14-
19; Resp to MTD 17-23).
There is no question that the DeBoer injunction judicially altered [this] status
quo. (Resp. to PI 9.) But it did so only as to the first part of the equation, with the
order permitting same-sex couples to get married in Michigan. The second part, by
contrast, remained exactly the same: anyone whose marriage had been validly
solemnized in Michigan had a constitutional right to remain married.
1
So while
Defendants are correct that the subsequent Sixth Circuit stay reverted Michigan to
the pre-DeBoer status quo (Resp. to PI 9), they err in believing that this helps
them. To the contrary, it essentially resolves this case in Plaintiffs favor.
Defendants assertion that any alleged denial of benefits is a direct result of
the operation of the stay issued by the Sixth Circuit (Resp to Mot for PI 1, 12-13)

1
Like the stay order entered in Kitchen, the Sixth Circuits stay order says nothing
about the legal status of the marriages that had already taken place. Evans v.
Utah, No. 2:14-CV-55-DAK, 2014 WL 2048343, at *11 (D. Utah May 19, 2014).
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is thus mistaken. The Sixth Circuit order in no way permitsmuch less requires
Defendants to invalidate legal marriages that have already taken place. Defendants,
not the Sixth Circuit, are responsible for the way Plaintiffs are being treated.
II. PLAINTIFFS SATISFY ALL REQUIREMENTS FOR A
PRELIMINARY INJUNCTION.
A. Plaintiffs Likelihood of Success on the Merits Is the Predominant
Factor in Deciding Their Request for Preliminary Relief.
Defendants do not dispute that [w]hen a party seeks a preliminary
injunction on the basis of a potential constitutional violation, the likelihood of
success on the merits often will be the determinative factor. Obama for America
v. Husted, 697 F.3d 423, 436 (6th Cir. 2012). The predominance of that
consideration carries the day, because as explained in earlier briefing, Plaintiffs are
clearly entitled to relief.
2
(Mot for PI 11-24; Resp. to MTD 12-26.)
B. The Irreparable Harm Inflicted on Plaintiffs and the Public Far
Outweighs Defendants Desire to Put Off Complying with the
Constitution for as Long as Possible.
In denying that Plaintiffs will suffer irreparable harm, Defendants repackage
their standing challenges. They argue that Plaintiffs injuries are speculative.
(Resp to Mot for PI 2, 15.) For legal disproof of that claim, see Mot for PI 6-10,
24-26, Resp to MTD 26-27, 28-30, and Resp to Mot for Stay 21-23. They argue

2
Defendants cite AFSCME Council 25 v. Talbot, 2014 WL 1653968 (March 24,
2014) (Goldsmith, J .), which is illustrative on this point. In Talbot, this Court
found such weakness in the plaintiffs claims as to present little likelihood of
success on the merits to warrant the injunctive relief they seek. Id. at *3, 6 (also
noting insufficient evidence of irreparable harm.).
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that Plaintiffs injuries are unrelated to conduct by Defendants. (Resp to Mot for
PI 2, 15.) For legal disproof, see Mot for PI 6-10, 24-26 and Resp to MTD 8-9, 26
n.17. And they argue that Plaintiffs injuries are dependent on factors beyond
mere marital status. (Resp to Mot for PI 2, 15.) For legal disproof, see Mot for PI
6-10, 24-26, Resp to MTD 26-27, 28-30, and Resp to Mot for Stay 21-22 & n.14.
3

Defendants also suggest that money could fully compensate Plaintiffs for
some of their injuries. (Resp to Mot for PI 15-17.) Arguments about the theoretical
compensability of a subset of harms are irrelevant, unless Defendants either waive
their qualified immunity or report that Michigan waives its sovereign immunity. In
any event, Plaintiffs marriages cannot possibly be valued in monetary terms, and
they have alleged many other noncompensable harms as well
4
including
constitutional harm, a form of injury that Defendants themselves recognize is
entitled to especially solicitous treatment. (Resp to Mot for PI 19-20.)


3
Defendants assert that the standing threshold requires actual and imminent
harm in all cases. (Resp to Mot for PI 18.) As the Supreme Court has recently
held, however, [a]n allegation of future injury may suffice if . . . there is a
substantial risk that the harm will occur. Susan B. Anthony List v. Driehaus, 573
U.S. ___, 2014 WL 2675871 (2014) (citation and quotation marks omitted).
4
See Mot for PI 10 (inability to adopt children who are currently in the process of
growing up); Mot for PI 10, 25-26 (indignity and humiliation); Mot for PI 24-25
(anxiety and uncertainty); Mot for PI 8, 9 (potential inability to make decisions for
a spouse or children in the event of incapacitation or death); Mot for PI 7 (potential
illness from uncovered medical conditions); Mot for PI 8 (survivor pension benefit
must be elected within one year of marriage).
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C. Plaintiffs Have Not Waived their Right to Relief.
According to Defendants, Plaintiffs assumed the risk that the Sixth Circuit
might stay the DeBoer injunction when they chose to get married. (Resp to Mot
for PI 1-2, 18-19.) As explained in Part I of this brief, however, the foreseeability
of the Sixth Circuit stay is legally irrelevant. The stay in DeBoer simply has no
effect on the validity of marriages that have already taken place. See also Resp to
Mot for Stay 11-18; Evans, 2014 WL 2048343, at *15 (rejecting similar argument
by state that couples unreasonably relied on an injunction when they married).
Defendants also seem to suggest that Plaintiffs have somehow waived their
right to preliminary relief by not filing this lawsuit and the motion for preliminary
injunction the instant that Governor Snyder made his announcement. (Resp to Mot
for PI 15.) The question before the Court is whether Plaintiffs will suffer further
irreparable harm absent an injunction, not whether Plaintiffs filed for an injunction
the instant they began to suffer such harm.
5

III. PRELIMINARY RELIEF SHOULD BE GRANTED TO ALL
SIMILARLY SITUATED MICHIGANDERS, REGARDLESS OF
WHETHER THEY ARE PARTIES TO THIS CASE.
Defendants suggest that it would be overly broad and improper to
provide relief to all same-sex couples married in the wake of DeBoer. (Resp to

5
Plaintiffs note that Defendants have nowhere asserted a laches defense. Even if
raised, such a defense would not be successful because it would require Defendants
to demonstrate a lack of diligence by Plaintiffs that prejudiced Defendants. See
Costello v. United States, 365 U.S. 265, 282 (1961).
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Mot for PI 10, citing an overruled decision that was grounded in special
considerations relating only to state court judges.) That is incorrect.
6
In a civil
rights case against executive officers seeking equitable relief from an
unconstitutional law, courts should protect the interests of those similarly
situated. Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125, 130 (6th Cir.
1971).
7
It is for precisely this reason that the Sixth Circuit does not require broad
constitutional relief to be sought through a class action.
8


6
In addition to the reasons outlined in the main text, the District Courts authority
to fashion relief protecting all married couples also derives from the longstanding
Michigan rule that a statute, upon being declared unconstitutional, is void ab
initio. Stanton v. Lloyd Hammond Produce Farms, 253 N.W.2d 114, 117 (Mich.
1977) (quoting 16 Am. J ur. 2d, Constitutional Law 177). Thus, once the District
Court rules that Plaintiffs are entitled to a preliminary injunction, Defendants lose
the authority to continue enforcing the statute against any similarly situated couple.
7
See also Curry v. Dempsey, 520 F. Supp. 70, 75 (W.D. Mich. 1981), revd on
other grounds, 701 F.2d 580 (6th Cir. 1983) (Any declaratory or injunctive relief
will accrue to the benefit of others similarly situated.); Bassett v. Snyder, 951 F.
Supp. 2d 939, 973 (E.D. Mich. 2013) (To provide effective relief, the injunction
must prohibit the defendant from enforcing [the statute] against everyone to
whom it applies. An injunction applicable only to the named plaintiffs would be
impractical and difficult to enforce.); Potts v. Flax, 313 F.2d 284, 28990 (5th
Cir. 1963) (holding that once a court finds unconstitutional discrimination, it must
order that it be discontinued, with application to all similar individuals); 7A
Wright et al., Federal Practice & Procedure, 1771 (noting that in cases such as
this, the requested relief generally will benefit not only the claimant but all other
persons subject to the practice or the rule under attack).
8
See Craft v. Memphis Light, Gas & Water Div., 534 F.2d 684, 686 (6th Cir. 1976)
([T]he district court properly recognized that such relief to the extent granted
would accrue to the benefit of others similarly situated and, consequently, . . . no
useful purpose would be served by permitting this case to proceed as a class
action.); see also Drumright v Padzieski, 436 F. Supp. 310, 325 (E.D. Mich.
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CONCLUSION

According to Defendants, immediately providing Plaintiffs with benefits
benefits no one. (Resp to Mot for PI 25.) Nothing could be further from the truth.
Granting the requested preliminary injunction will benefit these plaintiffs, 300
other married couples, their children and dependents, the public at large, well-
established Anglo-American legal tradition, the larger cause of justice, Americas
public reputation, and (although they are unlikely to acknowledge it) even these
Defendants, who would be freed from the distasteful position of violating the
United States Constitution.
Respectfully submitted,
/s/ Andrew Nickelhoff
Andrew Nickelhoff (P37990)
Cooperating Attorney,
American Civil Liberties Union
Fund of Michigan
Sachs Waldman PC
2211 E. J efferson Ave., Ste. 200
Detroit, MI 48207
(313) 496-9429
anickelhoff@sachswaldman.com





/s/ Julian Davis Mortenson
J ulian Davis Mortenson
(E.D. Mich. admission pending)
Cooperating Attorney,
American Civil Liberties Union
Fund of Michigan
University of Michigan Law School
*
625 S. State St.
Ann Arbor, MI 48109
(734) 763-5695
jdmorten@umich.edu


*
Institution included for


identification purposes only

1977) (similar); Soto-Lopez v. N.Y. City Civil Serv. Commn, 840 F.2d 162, 168-69
(2d Cir. 1988) (similar); Clement v. Cal. Dept of Corr., 364 F.3d 1148, 1153 (9th
Cir. 2004) (similar).
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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing paper with the Clerk
of the Court using the ECF system on this 7
th
day of J uly, 2014, which will send
notice of this filing to all registered parties via electronic transmission.
Respectfully submitted,

/s/ Andrew Nickelhoff
Andrew Nickelhoff (P37990)
SACHS WALDMAN, P.C.
2211 East J efferson Ave., Ste. 200
Detroit, MI 48207
(313) 496-9429
Fax: (313) 965-4602
email: anickelhoff@sachswaldman.com

Dated: J uly 7, 2014

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