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





PLAINTIFFS BRIEF IN SUPPORT OF MOTION TO MODIFY STAY ORDER
Case 3:14-cv-00213-MR-DLH Document 94 Filed 09/08/14 Page 1 of 5
Plaintiffs, through undersigned counsel, submit this memorandum in support of their
motion to modify the stay order [Doc. 91] and have the parties file short briefs identifying and
addressing any reasons that Bostic v. Schaefer, __ F.3d. __, No. 14-1167, 14-1169, 14-1173,
2014 WL 3702493 (4th Cir. July 28, 2014) would not resolve the issues in this litigation if
certiorari is denied or if the case is affirmed by the Supreme Court. Such submissions would not
be burdensome on the parties and would leave the Court prepared to order relief upon issuance of
the mandate and immediately remedy the ongoing constitutional harms identified in Bostic.
Pursuant to the Fourth Circuits ruling in Bostic, Plaintiffs are being deprived of a
fundamental constitutional right under the Fourteenth Amendment, which constitutes irreparable
and ongoing injury. See, e.g., Legend Night Club v. Miller, 637 F.3d 291, 302 (4th Cir. 2011);
11A Charles Alan Wright et al., Federal Practice & Procedure 2948.1 (3d ed. 2014) (where
alleged deprivation of constitutional right is involved, most courts hold that no further showing
of irreparable injury is necessary).
1

On August 25, 2014, the Court invoked its discretionary authority to stay this matter
[Doc. 91], continuing the Magistrate Judges earlier stay entered on August 12, 2014. [Doc. 89]
2

That prior order invoked the Courts discretionary power to manage the docket by balancing the
economy of time and effort for itself, for counsel, and for litigants, Landis v. North American
Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 166 (1936), in order to promote expeditious and
comprehensive disposition of the causes of action on the courts docket. United States v.
Georgia Pacific Corp., 562 F.2d 294, 296 (4th Cir. 1977). If the U.S. Supreme Court denies

1
As the Court is aware, Plaintiffs had also moved separately for a preliminary injunction on First Amendment
grounds under both the Free Exercise and Expressive Association guarantees that Bostic did not address in any
manner. [Doc. 5] Such violations involve per se irreparable harm. See, e.g., Legends Night Club, 637 F.3d at 302.
2
Neither the Magistrate Judges stay order nor this Courts stay order addressed or otherwise referenced Plaintiffs
First Amendment claims.
Case 3:14-cv-00213-MR-DLH Document 94 Filed 09/08/14 Page 2 of 5
certiorari or affirms the Bostic ruling on the merits and the mandate in Bostic is entered,
Plaintiffs will move this Court urgently and immediately to lift the stay, to grant Plaintiffs
Motion for Preliminary Injunction, and to grant judgment to Plaintiffs. Directing the parties to
present any reasons that Bostic would not decide the Fourteenth Amendment claims in this case
should it be affirmed and its mandate issue would promote expeditious and comprehensive
disposition of those claims in the case.
Plaintiffs request is not an onerous demand on the parties and would not unduly burden
any of the litigants. It would position the Court to order relief immediately upon issuance of the
mandate in order to address Plaintiffs ongoing and irreparable injuries. As noted in the Notice
filed this same date, the Defendant Attorney General has already briefed this issue in the Middle
District of North Carolina, thus rendering the task quite modest for the State Defendants. The
Defendant Registers of Deeds need only address whether there is any reason that Bostic would
not be controlling in this case if the mandate issues. The answer seems quite obvious, as
Plaintiffs and the Attorney General agree that Bostic controls and that there is no meaningful
difference between Virginias marriage laws and North Carolinas marriage laws.
If the parties address the impact of Bostic on the Fourteenth Amendment claims in this
case now, and evaluate whether there are any issues to be resolved should the mandate in Bostic
issue, the Court will be positioned to immediately enter appropriate relief. Thus, the proposed
modification to the stay order would promote judicial economy and the most expeditious
disposition possible.
Wherefore, in order to expedite relief in this case upon the entry of the mandate in Bostic,
Plaintiffs first request that this Court take notice of Defendant Coopers statements and filing
addressing the effect of the Bostic decision on this case. As demonstrated by those statements
Case 3:14-cv-00213-MR-DLH Document 94 Filed 09/08/14 Page 3 of 5
and filing in the Middle District cases, Plaintiffs and the Attorney General agree that Virginias
marriage laws the statutory and constitutional provisions declared unconstitutional in Bostic
are materially the same as North Carolinas marriage laws challenged here. Second, Plaintiffs
request that this Court modify the stay order to direct the parties to file supplemental briefs
addressing any reason that the issuance of the mandate in Bostic would not resolve the
Fourteenth Amendment issues in this case in favor of Plaintiffs.
Dated: September 8, 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-MR-DLH Document 94 Filed 09/08/14 Page 4 of 5
CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Memorandum with the Clerk of
the Court using the CM/ECF system, which will send notification of such filing to all counsel of
record.
Dated: September 8, 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





Case 3:14-cv-00213-MR-DLH Document 94 Filed 09/08/14 Page 5 of 5