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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION


CASIE JO MCGEE and SARAH ELIZABETH
ADKINS; JUSTIN MURDOCK and WILLIAM
GLAVARIS; and NANCY ELIZABETH
MICHAEL and JANE LOUISE FENTON,
individually and as next friends of A.S.M., a minor
child;

Plaintiffs,

v.

KAREN S. COLE, in her official capacity as
CABEL COUNTY CLERK; and VERA J.
MCCORMICK, in her official capacity as
KANAWHA COUNTY CLERK;

Defendants,

and

STATE of WEST VIRGINIA,

Intervenor-Defendant.

No. 3:13-cv-24068

Hon. Robert Chambers

















PLAINTIFFS REPLY MEMORANDUM IN SUPPORT OF
AMENDED MOTION TO LIFT STAY AND ENTER JUDGMENT

Plaintiffs are entitled to the relief they have sought from the inception of this action: a
declaration that West Virginias statutes excluding them from the status, rights, benefits, and
responsibilities of marriage are facially unconstitutional and repugnant to the Fourteenth
Amendments guarantees of liberty and equality. Now that the Supreme Court has declined to
entertain the writs of certiorari in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), Plaintiffs
Case 3:13-cv-24068 Document 138 Filed 10/23/14 Page 1 of 11 PageID #: 4582
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entitlement to this relief has never been more apparent, and this Court should enter a judgment to
that effect without delay.
Defendants concede, as they must, that the reasoning of Bostic in striking down
Virginias marriage ban applies directly to West Virginias marriage ban. They nonetheless
continue to rely solely on the same incorrect arguments that they have made since February
namely that Plaintiffs are required to join every party who might conceivably supervise or be
involved in the issuance of marriage licenses to anyone by anyone in West Virginia. See, e.g.,
D.E. 86. But Defendants offer no response to the fatal deficiencies in those arguments, already
set forth in Plaintiffs prior briefing: that under no theory of constitutional liability is a Plaintiff
required to implead every possible supervisor or decision-maker for a particular policy, see Ex
parte Young, 209 U.S. 123, 157 (1908); that as a factual matter, neither the State Registrar nor
the Secretary of State play any role that would be required for the Courts judgment to take
effect; and that the States intervention in this case itself is sufficient to bind the State Registrar
and Secretary of State in any event. See D.E. 88 at 7-16. If anything, events since this issue was
last briefed have undermined Defendants arguments: two courts have subsequently addressed
analogous procedural situations and then invalidated state marriage bans. See Wolf v. Walker,
No. 14-cv-64, 2014 WL 1207514, at *4-5 (W.D. Wisc. Mar. 24, 2014) (refusing to require that
Plaintiffs implead all county clerks in order to rule on the validity of the states marriage ban);
Pareto v. Ruvin, No. 14-1661 (Fla. Cir. Ct. July 24, 2014),
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appeal docketed, No. 3D14-1816
(Fla. Dist. Ct. App. July 28, 2014) (granting summary judgment for plaintiffs in lawsuit
challenging marriage ban against solely one county clerk in which the state participated only as
an intervenor).

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Decision available at http://www.nclrights.org/wp-content/uploads/2014/07/Pareto-Marriage-
Equality-Decision-July-25-2014.pdf.
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Indeed, Defendants factual contentions that the Registrar and Secretary of State are
indispensable parties in the issuance of marriage licenses is belied by their own recounting of
events following the Supreme Courts denial of certiorari in Bostic. In their previous briefing,
Defendants asserted that the Registrar was an indispensable party in the issuance of marriage
licenses, because of his role in promulgating the application forms for marriage licenses. See
D.E. 86 at 8-9. However, their description of post-Bostic events conspicuously omits any
mention of adjustments to that application form at the Registrars direction. See D.E. 134 at 2-3.
Rather, news articles suggest that some county clerks (including at least one Defendant in this
case) simply used the old forms and construed them in a manner allowing equal access to same-
sex couples without any intervention from the Registrar.
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This is precisely the course of action
that Plaintiffs suggested that Defendants could take in the event of a Court order directing the
Clerks to issue marriage licenses. See D.E. 88 at 8-9 (citing similar practice in New Mexico and
Iowa, and Califano v. Westcott, 443 U.S. 76, 89, 92 (1979), which holds that a court may order
an agency to adopt a gender-neutral interpretation of gendered language in provision determining
eligibility for a benefit program in order to remedy an unconstitutional exclusion). Further, the
Secretary of State is nowhere mentioned in the states chronology, see D.E. 134 at 2-3,
undermining the states prior contention that she was an indispensable party to this case as the
person who authorizes certain religious representatives to perform ceremonies, see D.E. 86 at 9-
10. As Plaintiffs have explained, the Secretary of State has nothing to do with civil ceremonies
performed by judges, and in any event, Plaintiffs have never challenged the criteria used by the

2
See Jeffrey A. Morris, Two Same-Sex Couples Receive Marriage Licenses In Cabell County,
wchstv.com (Oct. 9, 2014), available at http://www.wchstv.com/news/features/eyewitness-
news/stories/Tomblin-Says-He-Plans-No-Action-To-Challenge-Recent-Court-Rulings-On-Same-
Sex-Marriage-49442.shtml (Kanawha County, which is using old forms, started accepting
applications about 2:30 p.m. . . . .)
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Secretary for registering religious celebrants; her role in West Virginias marriage scheme is
irrelevant.
Defendants compound their legal error by insisting that any failure to join a necessary
party somehow deprives this court of subject-matter jurisdiction. While Plaintiffs respectfully
contend that they have joined all necessary parties, even if the Court disagrees, the Federal Rules
of Civil Procedure make clear that the court must order that the person be made a party. Fed.
R. Civ. P. 19(a)(2). It provides no basis for dismissal unless the absent party cannot be joined.
Fed. R. Civ. P. 19(b); see Natl Union Fire Ins. Co. of Pittsburgh v. Rite Aid of S.C., Inc., 210
F.3d 246, 250 (4th Cir. 2000) (dismissal for nonjoinder is a drastic remedy that should be
employed only sparingly (quotation marks omitted)); D.E. 88 at 15-16.
Nor has the States decision to permit issuance of marriage licenses lessened the need for
the declaratory judgment that Plaintiffs seek. The harm caused by the marriage ban is not just
the inability to get a license. Rather, the continued existence of the marriage ban, without a
declaration of its unconstitutionality, perpetuates stigma against lesbian and gay couples and
their children by branding their families as inferior. As the Supreme Court has explained in
reference to a federal law that singled out lesbian and gay people for marriage discrimination,
such a measure undermines both the public and private significance of same-sex couples
marriages because:
. . . it tells those couples, and all the world, that their otherwise valid marriages are
unworthy of federal recognition. This places same-sex couples in an unstable position of
being in a second-tier marriage. The differentiation demeans the couple, whose moral
and sexual choices the Constitution protects . . . . And it humiliates tens of thousands of
children now being raised by same-sex couples.

United States v. Windsor, 133 S. Ct. 2675, 2694 (2013). The Fourth Circuit also recognized this
type of harm to same-sex couples in Bostic, noting that in erecting a barrier to equal treatment,
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the Virginia marriage ban both prevents same-sex couples from obtaining the emotional, social,
and financial benefits that opposite-sex couples realize upon marriage and caused legally
cognizable stigmatic injury. Bostic, 760 F.3d at 372. Further, without declaratory relief, the ban
creates a cloud of uncertainty concerning the validity of same-sex couples marriages that lingers
despite the Fourth Circuits ruling, and continues to invite discrimination by third parties such as
insurers and health care providers, to name just a few. See Lawrence v. Texas, 539 U.S. 558, 574
(2003) (law criminalizing intimacy between persons of the same sex is a declaration in and of
itself [that] is an invitation to subject homosexual persons to discrimination both in the public
and in the private spheres).
This legal uncertainty is justification for a declaratory judgment for other reasons as well.
As Defendant Cole articulates, she is obliged to follow the law of the State, as written and is
issuing now marriage licenses to same-sex couples, see D.E. 136 at 2; but there is now little in
the law of the Stateand certainly nothing in West Virginia statutory law as writtento
prevent her or other similarly-situated state officials from interpreting their duties in the opposite
manner in the future. The marriage ban remains in the state statute books, with no court decision
having declared it unconstitutional. Absent a decision from this Court, Plaintiffswho have not
all yet performed their marriage ceremonies, let alone attempted to register their marriage
certificates
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are at the caprice of Defendants, who, despite their stated intentions to respect the
Fourth Circuits decision in Bostic, are not currently under any mandate to do so.

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That Plaintiffs in both Cabell and Kanawha counties have not all yet fully proceeded through
the marriage process should definitively answer any suggestion by the County Clerk Defendants
that this action is moot. In any event, the States unilateral decision to cease the challenged
conduct does not render Plaintiffs claims moot. It is well settled that a defendants voluntary
cessation of a challenged practice does not deprive a federal court of its power to determine the
legality of the practice. If it did, the courts would be compelled to leave the defendant . . . free to
return to his old ways. Friends of the Earth, Inc. v. Laidlaw Envtl Servs. (TOC), Inc., 528 U.S.
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The cloud of uncertainty that Plaintiffs face is illustrated by the fact that other states
affected by binding circuit precedent have not ceased enforcing their marriage laws absent a
court order declaring their particular marriage bans unconstitutional.
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Rather, in other states in
which a court has yet to issue such a rulingincluding a state in the Fourth Circuitstate
governments continue to enforce their discriminatory marriage bans. See, e.g., State ex rel.
Wilson v. Condon, No. 2014002121, 2014 WL 5038396 (S.C. Oct. 9, 2014) (notwithstanding
Bostic, enjoining the issuance of any marriage licenses to same-sex couples in South Carolina
pending resolution of a federal district court case regarding that states marriage ban).
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167, 189 (2000) (internal citations and quotations omitted). Rather, it is Defendants who bear
the heavy burden of persuading this Court that it is absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur. Id. Defendants have not even
attempted to meet that burden.
4
The Supreme Courts denial of certiorari rendered final the decisions of the Fourth, Seventh,
and Tenth Circuits invalidating marriage bans in Indiana, Oklahoma, Utah, Virginia, and
Wisconsin, and the Ninth Circuit invalidated marriage bans in Nevada and Idaho. Although
proceedings are still pending with respect to Idaho, the Nevada decision is now final, as the State
has declined any further appeal. See, e.g., Emerson Marcus and Marcella Corona, Federal Judge
Signs Injunction Allowing Gay Marriage in Nevada, Reno Gazette Journal (Oct. 9, 2014),
available at http://www.rgj.com/story/news/2014/10/09/nevada-group-withdraws-request-for-
stay-of-gay-marriage-ban/16975791/. Additionally, a district court decision striking down
Colorados marriage ban also is final, after the state voluntarily moved to dismiss its appeal
before the Tenth Circuit in light of the Supreme Courts decision not to review the Utah and
Oklahoma decisions. See Unopposed Motion to Dismiss Appeal, Burns v. Suthers, No. 14-1283
(10th Cir. Oct. 6, 2014), available at https://www.scribd.com/doc/242117489/14-1283-Motion-
to-Dismiss.
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See, also, e.g., State ex rel. Schmidt v. Moriarty, No. 112,590 (Kan. Oct. 10, 2014) (Order of
Nuss, C.J.), available at http://www.kscourts.org/Cases-and-
Opinions/opinions/SupCt/2014/20141010/112590.pdf (entering a stay pending further state court
proceedings, despite the Tenth Circuits precedential ruling); Paige Sedgewick, Montana Could
Be Nearing Legalization of Same-Sex Marriage, nbcmontana.com (Oct. 21, 2014), available at
http://www.nbcmontana.com/news/montana-could-be-nearing-legalization-of-samesex-
marriage/29265738 (noting that Montana continues to enforce and defend its marriage ban,
despite the Ninth Circuits precedential ruling); Mark Sherman, 3 States Deny Gay Unions
Despite Appellate Rulings, Associated Press (Oct. 23, 2014), available at
http://www.wvva.com/story/26870138/3-states-deny-gay-unions-despite-appellate-rulings.
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Furtherperhaps in recognition of this uncertaintythe United States Department of
Justice has not yet announced its intention to recognize the marriages of same-sex couples
performed in West Virginia, even though it announced last Friday that it would respect as valid
the marriages of same-sex couples in seven other states, all of which were subject to final Court
rulings striking down their respective marriage bans (Colorado, Indiana, Nevada, Oklahoma,
Utah, Virginia, and Wisconsin). See U.S. Dept of Justice, Press Release, After Supreme Court
Declines to Hear Same-Sex Marriage Cases, Attorney General Holder Announces Federal
Government to Recognize Couples in Seven New States (Oct. 17, 2014) available at
http://1.usa.gov/1t4Hgz4. Thus, West Virginia same-sex spouses still must confront unnecessary
uncertainty over whether they may access over 1,000 federal benefits, rights, and responsibilities,
which is itself a reason why a declaration of facial unconstitutionality is necessary.
Indeed, the West Virginia Attorney Generals own statements highlight the uncertainty of
the current situation; he has publicly announced that not even the conclusion of th[is] lawsuit
would effectuate the Fourth Circuits mandate. Office of West Virginia Attorney General
Patrick Morrisey, Press Release, Attorney General Patrick Morrisey Says His Office Will Respect
U.S. Supreme Court Decision, (Oct. 9. 2014), available at
http://www.ago.wv.gov/pressroom/2014/Pages/Attorney-General-Patrick-Morrisey-Says-His-
Office-Will-Respect-U.S.-Supreme-Court-Decision.aspx.
What will bring certainty to all partiesand finally end the stigma and discrimination
caused by the States marriage banis a declaratory judgment from this Court that West
Virginias marriage ban unconstitutionally discriminates against lesbian and gay couples. Such
certainty and finality is precisely the reason for declaratory judgment: to serve a useful purpose
in clarifying and settling the legal relations in issue, and terminate and afford relief from the
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uncertainty, insecurity, and controversy giving rise to the proceeding. See Centennial Life Ins.
Co. v. Poston, 88 F.3d 255, 256 (4th Cir. 1996) (citing Aetna Cas. & Sur. Co. v. Quarles, 92 F.2d
321, 325 (4th Cir. 1937)). The current situation calls out for such certainty. This Court should
grant itand end once and for all the discriminatory effect of the States marriage banby
entering declaratory judgment in the Plaintiffs favor.
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* * *
Accordingly, Plaintiffs request that this Court enter judgment for the Plaintiffs in
accordance with the Fourth Circuits decision in Bostic.


Dated: October 23, 2014

Respectfully submitted,

CASIE JO MCGEE and SARAH
ELIZABETH ADKINS, et al.

By Counsel:


/s/ Camilla B. Taylor

LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.

Camilla B. Taylor (pro hac vice)
105 West Adams, 26th Floor
Chicago, Illinois 60603-6208

6
Defendant Coles suggestion that the Court should refrain from ruling in order to avoid
providing a basis for an attorneys fee claim should be rejected outright. Congress created a
right to court-awarded fees in constitutional litigation against the states in order to encourage full
enforcement of constitutional rights, and therefore could hardly have intended that this provision
be viewed as a reason not to enforce constitutional rights. See Maher v. Gagne, 448 U.S. 122,
133 (1980) (attorney fee award furthers the Congressional goal of encouraging suits to vindicate
constitutional rights) (quotation omitted); Hutto v. Finney, 437 U.S. 678, 693-94 (1978) (in
authorizing attorneys fees in actions to enforce civil rights laws, Congress undoubtedly
intended to . . . to authorize fee awards payable by the States when their officials are sued in their
official capacities.).
Case 3:13-cv-24068 Document 138 Filed 10/23/14 Page 8 of 11 PageID #: 4589
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Phone: (312) 663-4413
Fax: (312) 663-4307
ctaylor@lambdalegal.org

Elizabeth L. Littrell (pro hac vice)
730 Peachtree Street, NE
Suite 1070
Atlanta, Georgia 30308-1210
Phone: (404) 897-1880
Fax: (404) 897-1884
blittrell@lambdalegal.org

Karen L. Loewy (pro hac vice)
120 Wall Street, 19th Floor
New York, New York 10005-3904
Phone: (212) 809-8585
Fax: (212) 809-0055
kloewy@lambdalegal.org

THE TINNEY LAW FIRM, PLLC
John H. Tinney, Jr. (WVSB #6970)
Heather Foster Kittredge (WVSB #8543)
PO Box 3752
Charleston, West Virginia 25337-3752
Phone: (304) 720-3310
Fax: (304) 720-3315
JackTinney@tinneylawfirm.com
HKittredge@tinneylawfirm.com

JENNER & BLOCK LLP
Paul M. Smith (pro hac vice)
Lindsay C. Harrison (pro hac vice)
Luke C. Platzer (pro hac vice)
R. Trent McCotter (pro hac vice)
1099 New York Avenue, NW
Suite 900
Washington, DC 20001-4412
Phone: (202) 639-6000
Fax: (202) 639-6006
psmith@jenner.com
lharrison@jenner.com
lplatzer@jenner.com
rmccotter@jenner.com

Counsel for Plaintiffs

Case 3:13-cv-24068 Document 138 Filed 10/23/14 Page 9 of 11 PageID #: 4590
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION


CASIE JO MCGEE and SARAH ELIZABETH
ADKINS; JUSTIN MURDOCK and WILLIAM
GLAVARIS; and NANCY ELIZABETH
MICHAEL and JANE LOUISE FENTON,
individually and as next friends of A.S.M., a minor
child;

Plaintiffs,

v.

KAREN S. COLE, in her official capacity as
CABEL COUNTY CLERK; and VERA J.
MCCORMICK, in her official capacity as
KANAWHA COUNTY CLERK;

Defendants,

and

STATE of WEST VIRGINIA,

Intervenor-Defendant.

No. 3:13-cv-24068

Hon. Robert Chambers

















CERTIFICATE OF SERVICE

I hereby certify that on the 23rd day of October, 2014, I electronically filed the foregoing
Plaintiffs Reply Memorandum in Support of Amended Motion to Lift Stay and For Entry of
Judgment with the Clerk of the Court using the CM/ECF system, which will send notification of
such filing to the following CM/ECF participants:

Elbert Lin, Esquire
Julie Ann Warren, Esquire
Julie Marie Blake, Esquire
Office of the Attorney General
Case 3:13-cv-24068 Document 138 Filed 10/23/14 Page 10 of 11 PageID #: 4591
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State Capitol Building 1, Room E-26
Charleston, WV 25305
Counsel for Defendant-Intervenor State of West Virginia

Charles R. Bailey, Esquire
Michael W. Taylor, Esquire
Bailey & Wyant, PLLC
500 Virginia Street, East, Suite 600
Post Office Box 3710
Charleston, WV 25337-3710
Counsel for Defendant Vera J McCormick

Lee Murray Hall, Esquire
Sarah A. Walling, Esquire
Jenkins Fenstermaker, PLLC
325 Eight Street
Huntington, WV 25701-2225
Counsel for Defendant Karen S. Cole


/s/ Camilla B. Taylor
Camilla B. Taylor

Counsel for Plaintiffs






















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