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;
Case 3:14-cv-00213-MOC-DLH Document 115 Filed 10/10/14 Page 1 of 6 PLAINTIFFS RESPONSE TO MOTION TO INTERVENE AND RENEWED REQUEST FOR A PRELIMINARY INJUNCTION
The Court should reject the Motion to Intervene and should instead immediately grant Plaintiffs motion for a preliminary injunction. The Motion to Intervene rests entirely on the flawed premise that this Court can simply ignore Bostic despite the fact that it is law of the Circuit and binding precedent in this action. Moreover, although the proposed Intervenors have not satisfied Fed. R. Civ. P. 24 and their Motion should be denied, whether they are allowed to intervene or not is ultimately beside the point as relates to Plaintiffs right to preliminary injunctive relief. Now that Bostic is final, the individual Plaintiff couples should be permitted to marry, as the Fourth Circuit has held they are entitled to do under the Fourteenth Amendment. I. THE COURT SHOULD GRANT PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION.
Although the proposed Intervenors have not satisfied Rule 24, their motion should not delay Plaintiffs immediate right to preliminary injunctive relief. First, Plaintiffs likelihood of success on the merits has effectively been determined in their favor. The judgment in Bostic is final, leaving no doubt in the Fourth Circuit that the Fourteenth Amendment protects the right of same-sex couples--like Plaintiffs--to marry. Moreover, this Court is bound by Bostic. Thus, whatever reasons the proposed Intervenors have for why they think Bostic is incorrect are irrelevant at this time (they also fail on the merits, as explained below). Second, there is no serious dispute by any party or the proposed Intervenors that Plaintiffs will suffer irreparable harm as a result of the continued enforcement of the unconstitutional North Carolina Marriage Laws. The proposed Intervenors make no such arguments and only incorporate by reference the responses filed by the Defendants to the Motion Case 3:14-cv-00213-MOC-DLH Document 115 Filed 10/10/14 Page 2 of 6 for Preliminary Injunction which likewise failed to contest Plaintiffs showing of irreparable harm as relates to their Fourteenth Amendment claim. Accordingly, even if the Court grants the Motion to Intervene, no reason has been presented by any party or by the proposed Intervenors why the Court should not grant Plaintiffs request for a preliminary injunction. II. THE PROPOSED INTERVENORS DO NOT SATISFY FED. R. CIV. P. 24. Rule 24 expressly states that a motion to intervene must be accompanied by a pleading that sets out the claim or defense for the intervention is sought. Notwithstanding this Rules clarity, the proposed Intervenors filed no such pleading and instead asked for additional time to do so while adopting by reference the prior responses to the motion for a preliminary injunction filed by the Defendants. But briefs are not pleadings, and Rule 24 requires that a pleading be submitted with the motion. Moreover, the Court should reject the argument of the proposed Intervenors that they did not know until this week that the Attorney General would abandon the defense of the states unlawful marriage laws. To the contrary, in their Memorandum of Law [D.E. 108, at 7], they quote from the Attorney Generals detailed public statement on July 28 explaining that he would abide by Bostic and not oppose the case going forward. Thus,, they admit to knowing from the day the Fourth Circuit decided Bostic several months ago that the Attorney General did not intend to defend this lawsuit on the merits and yet made no effort to find counsel much less to intervene. Moreover, the grounds for intervention present issues that can only be resolved by the Fourth Circuit, and not this Court. According to the proposed Intervenors, Bostic was decided by two outcome determinative concessions by Virginias Attorney General: (1) that Baker v. Nelson, 409 U.S. 810 (1972) was no longer binding precedent in Bostic; and (2) that heightened Case 3:14-cv-00213-MOC-DLH Document 115 Filed 10/10/14 Page 3 of 6 scrutiny applies to the due process claim of a right to marry. However, a cursory review of Bostic and the parties briefs in Bostic shows that the proposed Intervenors arguments are both disingenuous and meritless. Nowhere in any Bostic decision did any Fourth Circuit judge suggest, let alone find, that those two issueswhether Baker controlled and the level of review that appliedwere decided against the Commonwealth of Virginia because of any position espoused (or abandoned) by the Attorney General. In fact, the same positions that the proposed Intervenors seek to make in this Court were fully presented to and rejected by the Fourth Circuit. Critically, however, the proposed Intervenors overlook that Bostic is law of the Circuit and binding in this Court. To the extent they wish to rehash arguments that were considered and rejected in Bostic, they must direct their arguments to the Fourth Circuit. In the meantime, the Court should at the very least grant Plaintiffs Motion for Preliminary Injunction in order to prevent any further violation of the fundamental right of Plaintiffs and thousands of other North Carolina citizens to marry.
Case 3:14-cv-00213-MOC-DLH Document 115 Filed 10/10/14 Page 4 of 6
Dated: October 10, 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-MOC-DLH Document 115 Filed 10/10/14 Page 5 of 6 CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing Motion with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record. Dated: October 10, 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-MOC-DLH Document 115 Filed 10/10/14 Page 6 of 6