14-1341 #39

Case No.: 14-1341

__________________________________________________________________

In the

United States Court of Appeals

for the Sixth Circuit

APRIL DEBOER, et. al.,

Plaintiffs/Appellees,

v.

RICHARD SNYDER, et. al.,

Defendants/Appellants.

__________________________________________________________________

On Appeal from the United States District Court

for the Eastern District of Michigan, Southern Division

Hon. Judge Bernard Friedman

__________________________________________________________________

MOTION TO INTERVENE

MOTION FOR EXPEDITED REVIEW

NOW COMES Erin Blankenship and Shayla Blankenship, by and through

the LAW OFFICES OF GREGORY T. GIBBS, and in support of their motion to

intervene and for expedited review state as follows:

1. Intervenors Erin and Shayla Blankenship are a committed, married same-sex

couple residing in Genesee County, Michigan. See generally Ex. A-Affidavit of

Case: 14-1341 Document: 39-1 Filed: 04/21/2014 Page: 1 (1 of 26)

Erin Blankenship; Affidavit of Shayla Blankenship.

2. Intervenors have lived together as domestic partners for over a decade, and

together raise two minor children. See generally id. They have known each other

for nearly two decades, and decided to raise children together in 2006, after having

a commitment ceremony in Flint, Michigan, one month before the passage of the

“Michigan Marriage Amendment” (MMA) at issue in this case.

3. In 2007, Erin Blankenship changed her legal name so that the son she gave

birth to would share Shayla Blankenship’s surname as well. Aff. Erin

Blankenship, ¶ 17. Their first child was born about a month later. Id at 18.

4. In November of 2012, the Blankenships made contact with a woman who

was considering placing her unborn child up for adoption. Aff. Erin Blankenship

at ¶ 19. Together, they accompanied the birth mother to her doctors’ appointments

and left the hospital as a family when their daughter was born and placed in the

care of Shayla. Id at 20-23; Aff. Shayla Blankenship at ¶ 18-22. Although their

family is not recognized by the State of Michigan as worthy of recognition and

equal status, they raise their children together.

5. In August, 2013, Intevenors married in the State of New York, following the

decision of the United States Supreme Court in the case of United States v.

Windsor, 133 S. Ct. 2675; 186 L. Ed. 2d 808 (2013). See Ex. B-Marriage

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Certificate.

6. On October 2, 2013, Shayla Blankenship’s adoption of the newest addition

to the Blankenship family was finalized.

7. The judgment and order that form the subject of this appeal were issued on

Friday, March 21, 2014. The emergency request for a stay was filed the same day,

and the temporary stay was issued the following day. The request for a stay was

granted by this Court the following week.

8. Following the decision in the instant case, the Blankenships had prepared the

paperwork to process a second parent adoption of their children. However, they

were told by court staff that the adoption petitions would not be accepted because

of the stay issued by this Court.

9. Subsequent to the filing of the Notice of Appeal in this case, this Court

issued an expedited briefing schedule. The State of Michigan has also moved for

premature consideration of these issues en banc.

10. Defendants, speaking on behalf of the State of Michigan, including

Defendant Governor Rick Snyder, refuses to recognize valid out-of-state

marriages because of the stay.

11. Pursuant to Fed. R. App. Pro. 24(a), the Blankenships move to intervene as

of right. Alternatively, they seek permissive intervention pursuant to Fed. R. Civ.

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Pro. 24(b).

12. Intervention is timely. There is a single test for timeliness under Rule 24

that encompasses mandatory and permissive intervention. See United States v.

City of Detroit, 712 F.3d 925 (2013).

13. It is worth noting that the time to file an appeal has yet to pass in this matter.

See 28 U.S.C. § 1291; Fed. R. App. Pro 4(a)(1)(A)(thirty days). This factor weighs

strongly in favor of the timeliness of intervention. Cf. Houston Gen. Ins. Co. v.

Moore, 193 F.3d 838 (4th Cir. 1999)(intervention untimely when motion to

intervene filed after expiration of thirty day appeal period). Because the opening

briefs need not be filed, and because the Blankenships are not requesting any

extension of time, there is no prejudice from granting intervention.

14. Intervenors have a substantial and constitutionally protected legal interest in

remaining married. Before the adoption of Michigan’s anti-gay laws on marriage

recognition, the State of Michigan recognized all marriages that were performed

outside of its jurisdiction unless those marriages violated some firm public policy

that was codified by statute. See generally In re Miller's Estate, 239 Mich. 455, 214

N.W. 428 (1927). No Michigan statute prohibited recognition of marriages

between same-sex couples performed in other jurisdictions or the issuance of

marriage licenses to same-sex couples until 1996, when the Michigan legislature

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passed Public Act 324. The act amended four sections of Michigan’s laws to

invalidate all marriages between same-sex couples. See Mich. Comp. Law Sec

551.1, 551.2, 551.3 and 551.4. A related enactment, Public Act 334 of 1996,

addressed marriages performed outside of Michigan and provided that such

marriages were “invalid in this state regardless of whether the marriage is

contracted according to the laws of another jurisdiction.” Mich. Comp. Law

551.272.

15. At the time that Michigan’s marriage laws were changed to demean same-sex

couples, no state recognized same-sex marriages. Accordingly, there was no

opportunity to test the constitutionality of Michigan’s refusal to recognize out-of-

state same-sex marriages. Before the passage of Michigan’s marriage amendment,

however, Michigan’s equal protection clause was construed as being coextensive

with the Equal Protection Clause of the Fourteenth Amendment. See Harvey v.

State, 469 Mich. 1; 664 N.W.2d 767 (2003). Indeed, Michigan’s continuing

criminalization of relationships between gay men under the state’s “gross

indecency” statute was justified by one justice on the basis of the United States’

Supreme Court’s interpretation of the federal due process and equal protection

clauses. See People v. Lint, 465 Mich. 851; 629 N.W.2d (2001)(citing Bowers v.

Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986)(Corrigan, C.J.,

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dissenting).

16. The reasoning behind Justice Corrigan’s dissent in Lint would be invalid

today, however, given the intervening decisions of the United States Supreme Court.

Similarly, in the absence of the state’s marriage amendment, the equal protection

clause of the Michigan constitution would be harmonized with more recent decisions

invalidating the federal Defense of Marriage Act. Compare Nat'l Pride at Work, Inc.

v. Governor of Mich., 274 Mich. App. 147; 732 N.W.2d 139 (2007) with United

States v. Windsor, 133 S. Ct. 2675; 186 L. Ed. 2d 808 (2013). In Windsor, the

Supreme Court held that Section 3 of the federal Defense of Marriage Act “is

unconstitutional as a deprivation of the liberty of the person protected by the Fifth

Amendment of the Constitution.” Id at 2695. The liberty interest identified by the

Court was “the prohibition against denying to any person the equal protection of the

laws.” Id (citing Bolling v. Sharpe, 347 U.S. 497, 499-500; 74 S. Ct. 693 (1954) and

Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 217-218, 115 S. Ct. 2097, 132 L.

Ed. 2d 158 (1995)).

17. Harmonizing Windsor with Michigan Supreme Court precedent, it is clear that

the decision rendering the MMA unconstitutional removed any remaining barriers to

the recognition of the Blankenships’ marriage under state law. The decisions cited

by the Supreme Court in Windsor, including the pinpoint citations, crystalize this

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inescapable conclusion. In Bolling, the Court recognized that the Equal Protection

clause was “a more explicit safeguard of prohibited unfairness” than the Due Process

Clause. See Bolling, supra at 499. The citation to Adarand Constructors also

clarifies that the Windsor Court was interpreting the protections of the Due Process

Clause as at least providing the same protection that would be afforded by the Equal

Protection Clause of the Fourteenth Amendment. See Adarand Constructors Inc,

515 U.S. at 217-218 (recognizing that cases decided after 1964 “continued to treat

the equal protection obligations imposed by the Fifth and the Fourteenth

Amendments as indistinguishable.”). Because the marriage amendment was

necessarily harmonized with the state’s equal protection clause, the invalidation of

the former realigns the latter with the Equal Protection Clause of the 14th

Amendment and the Due Process Clause of the Fifth Amendment. See Windsor,

supra at 2695 (“While the Fifth Amendment itself withdraws from Government the

power to degrade or demean in the way this law does, the equal protection guarantee

of the Fourteenth Amendment makes that Fifth Amendment right all the more

specific and all the better understood and preserved.”). This renders any statutory

impediments null and void.1

This is the position that the State of Michigan took last month in oral arguments1

before this Court en banc. According to the state attorney general, “a court’sdeclaration that a law is unconstitutional” means that “in that circumstance, the lawwas never valid and is considered void ab initio.” See City of Pontiac Retired

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18. Because of the stay imposed in this case, however, the Blankenships and

similarly-situated same-sex couples married out of state are prohibited from jointly

adopting their children or having the state recognize them as equal parents. They are

also denied all other benefits and obligation that follow from recognition of their

existing marriages.

19. The right to marry also includes the right to remain married, one that is

secured by the Due Process Clause. See Obergefell v. Wymyslo, 962 F. Supp. 2d 968

(S.D. Ohio 2013). Just as Windsor established that the federal government has no

power to invalidate a lawful marriage for federal purposes, Obergefell and similar

cases establish that the states do not have roving and unrestricted power to render a

valid marriage null and void without establishing a sufficiently compelling reason.

Yet this is precisely what the Attorney General hopes to accomplish by enforcing the

stay in this case and, presumably, through the application of any adverse decision to

later cases involving the recogniton of valid out-of-state marriages.

20. Although the Blankenships must establish that their legal interests will be

impaired in the absence of intervention, this Court has recognized that their burden

“is a minimal one.” See Michigan State v. Miller, 103 F.3d 1240, 1247 (6 Cir.th

Employees v. Schimmel, et. al., Case No. 12-2087, Doc. No. 006111941849,Supplemental Brief of Intervenor State of Michigan dated January 21, 2014, p. 23(citing Stanton v. Lloyd Hammond Produce Farms, 400 Mich. 135, 144–45 (1977).

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1997). Accordingly, “it is sufficient that the movant[] prove that representation may

be inadequate.” Id (emphasis added). Potential inadquacy includes, for example,

the possible stare decisis effects of precedential decisions. Id (citing Linton v.

Commissioner of Health & Env't, 973 F.2d 1311, 1319 (6th Cir. 1992)).

21. Currently, there are two basic parties to this litigation: the Plaintiffs, a

committed lesbian couple who are not married under the laws of any State but wish

to get married, and the State of Michgan defendants, who wish to prevent them from

getting married and also want to prevent the state from recognizing the existing

marriages of same-sex couples in Michigan. The first party cannot adequately

protect the interests of couples who hold valid, out-of-state marriage licenses, and

the second party will not protect those interests even if they had the ability to do so.

22. The intervenors do not doubt that counsel for Plaintiffs will adequately protect

the interests of unmarried same-sex couples in Michigan who want to get married.2

However, they are not in a position to adequately protect the interests of Michigan's

married same-sex couples who obtained their licenses from neighboring

jurisdictions. The objective of these married same-sex couples, including the

Blankenships, is protection of actually existing marriages, while the ultimate

objective of unmarried couples is securing the ability to procure marriage licenses

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from the State of Michigan. Because there is no identity of interests, there is no

presumption of adequate representation. Cf. Wisconsin Educ. Ass'n Council v.

Walker, 705 F.3d 640, 659 (7th Cir. 2013).

23. Even if there was a presumption in place, and even if intervenors shared the

same ultimate goal that Plaintiffs have, the presumption can be overcome by

demonstrating that the intervenors will present different arguments than those that

will be put forward by Plaintiffs or that the intervenors have different objectives at

this stage of litigation. See Michigan State AFL-CIO, supra, 103 F.3d at 1247-1248.

For example, while the Blankenships and most married same-sex couples believe

that the State of Michigan should issue licenses to same-sex couples, they do not

have standing to argue that the State of Michigan should issue those licenses to

them. Cf. Bishop v. United States ex rel. Holder, 04-CV-848-TCK-TLW, 2014 U.S.

Dist. LEXIS 4374, 2014 WL 116013, at *9 (N.D. Okla. Jan. 14, 2014). Nevertheless,

the Blankenships and their children suffer from the stigmatic and concrete harm

brought about by non-recognition and, importantly for purposes of this motion, the

stigmatic and concrete harm that will be brought about by the stay request sought by

the State of Michigan and the potentially adverse consequences of a decision that

upholds Michigan's anti-gay laws. Moreover, they have already been denied the

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opportunity to present these concerns before the District Court.3

24. This situation is exacerbated by this Court's consideration of the recognition

issue outside of the Michigan context, including the expedited appeals from Ohio,

Kentucky and Tennessee. The procedural posture of these cases is extremely

significant; for example, the case of Tanco v. Haslam, 2014 U.S. Dist. LEXIS 33463

(M.D. Tenn. Mar. 14, 2014) is on appeal following the District Court's entry of a

preliminary injunction barring further enforcement of Tennesee's so-called

"recognition" statutes. There was no discussion of Tennessee's approach to the

recognition (or lack thereof) of so-called "evasive" marriages that circumvent

application of state law. By contrast, the procedural posture of Bourke v. Beshear,

2014 U.S. Dist. LEXIS 17457 (W.D. Ky. Feb. 12, 2014), is an appeal from a final

judgment challenging, inter alia, application of Ky. Rev. Stat. Ann. sec. 402.045,

which both prohibits recognition of valid same-sex marriages that occur in any other

jurisdiction and also renders "[a]ny rights granted by virtue of the marriage, or its

termination...unenforceable in Kentucky courts." Id. While the decision of the

District Court in Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013)

addresses many of the distinct issues that Intervenors plan to raise, the state statutory

The imposition of the stay by this Court prevented the Blankenships from3

moving to intervene to argue these issues before the District Court, which is afactor that weighs in favor of intervention on appeal.

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language of the anti-recognition laws is different and in many respects more far

reaching than the language found in Michigan's statutes, while the language found in

Michigan's constitutional amendment is broader than the language in Ohio's

constitutional amendment. Compare Ohio Const. art. XV, § 11 ("This state and its

political subdivisions shall not create or recognize a legal status for relationships of

unmarried individuals that intends to approximate the design, qualities, significance

or effect of marriage.") with Mich. Const. Art. I, § 25 (" ...the union of one man and

one woman in marriage shall be the only agreement recognized as a marriage or

similar union for any purpose.").

25. Judicial construction of these amendments confirms that the Michigan state

constitutional prohibition of recognition is far more significant and far-reaching than

the Ohio constitutional prohibition. Compare State v. Carswell, 114 Ohio St. 3d

210, 871 N.E.2d 547 (2007)(“... the second sentence of the amendment means that

the state cannot create or recognize a legal status for unmarried persons that bears all

of the attributes of marriage ...”)(emphasis added) and Cleveland Taxpayers for

Ohio Constitution v. City of Cleveland, 2010 Ohio 4685, 2010 Ohio App. LEXIS

3981 (Ohio Ct. App., Cuyahoga County Sept. 30, 2010) (amendment does not

prohibit domestic partnership benefits) with Nat'l Pride at Work, Inc. v. Governor of

Mich., 481 Mich 56, 748 NW2d 524, 2008 Mich LEXIS 915 (2008) (MMA

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prohibits domestic partnership benefits).

26. Because Michigan’s far-reaching prohibition of family recognition is secured

in the state constitution, these differences have the strong potential to be outcome-

determinative based on this Court’s holding in the case of Equality Found. v. City of

Cincinnati, 128 F.3d 289 (6th Cir. 1997). In Equality Found II, this Court held that

the “low level of government at which [an anti-gay law] becomes operative is

significant because the opponents of that strictly local enactment need not undertake

the monumental political task of procuring an amendment” to the state constitution.

Id at 297. This is also consistent with other cases decided by the Supreme Court and

the Sixth Circuit that address state constitutional provisions that erect unusual

barriers to the political decisionmaking process for minority groups. Cf. Coalition to

Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th. Cir. 2006); Coal. to

Defend Affirmative Action v. Regents of Univ. of Mich., 701 F.3d 466 (6th Cir.

2012).

27. The only other parties to these proceedings represent the State of Michigan,

and are completely hostile to the interests of the Blankenships and similarly situated

couples. Indeed, there is every indication that the continuing refusal to recognize

these valid, existing marriages is the direct result of animus, an inference that is

supported by Michigan’s unusually hostile legal landscape for lesbians and gay

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men.4 This hostility finds expression at virtually all levels of government and is

even reflected in the decisions of Michigan’s nonpartisan judiciary. The Michigan

Supreme Court, for example, has embraced an unusually expansive construction of

the marriage amendment at issue in this case, finding that it precluded the extension

of health care coverage to public employees if their spouses were the same gender.

See Nat'l Pride at Work, Inc. v. Governor of Mich., 481 Mich. 56; 748 N.W.2d 524

(2008). In that decision, the Michigan Supreme Court also refused to review an

intermediate appeals court that refused to extend basic equal protection principles to

discrimination on the basis of sexual orientation. See id; see also Nat'l Pride at

Work, Inc. v. Governor of Mich., 274 Mich. App. 147; 732 N.W.2d 139 (2007).

28. Michigan’s courts do not create the hostile legal atmosphere, but they do

reflect the animus exhibited by the State of Michigan, including its legislature. For

example, Michigan does not prohibit anti-gay discrimination in the private

marketplace, although it does extend other unusual protections to people on the basis

of categories not included in analogous federal legislation, including weight. See

Although the State of Michigan parties claim that they are motivated not by4

animus but by a mere desire to uphold the law, this is at least arguably inconsistentwith their recent decisions to refuse to enforce other laws that federal DistrictCourts declared unconstitutional, including a law that was signed by DefendantSnyder. See Platinum Sports v. Snyder, 715 F.3d 615 (6th. Cir. 2013). It is alsoarguably inconsistent with the State’s decision to use taxpayer money to presentexpert testimony in support of a study that the lower court in this case deemed littlemore than an example of politically motivated junk science.

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generally Barbour v. Dep't of Social Services, 198 Mich. App. 183; 497 N.W.2d 216

(1993). More recently, the Michigan legislature passed legislation, supported and

defended by the defendants in this case, that supplemented the challenged

constitutional provision by making it impossible for public employees in same-sex

relationships, and only public employees in same-sex relationships, to obtain

domestic partnership benefits. As the District Court hearing the challenge to that

statute noted, “[t]he unavoidable conclusion is that [the statute] contains a

discriminatory classification on the basis of sexual orientation.” Bassett v. Snyder,

951 F. Supp. 2d 939 (E.D. Mich. 2013).

29. In light of the hostility to married same-sex couples that finds expression

under Michigan law, and the differences in legal arguments that would be advanced

in support of the Blankenships, when compared to those that would be advanced in

support of the existing plaintiffs, there is a strong basis for intervention under Rule

24's liberal standards. Couples with valid, existing marriage licenses deserve

adequate representation in these proceedings.

30. For the foregoing reasons, the Blankenships have satisfied the requirements

for intervention under Rule 24.

MOTION FOR EXPEDITED REVIEW

31. Pursuant to Sixth Circuit Rule 27(c), and for the reasons set forth above, the

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Blankenships request that this Court grant expedited review of their Motion to

Intervene as they have demonstrated good cause as to why the motion should receive

expedited review.

CONCLUSION

WHEREFORE, for the reasons set forth above, the Blankenships request that

this Court GRANT their Motion to Intervene pursuant to Fed. R. Civ. P. 24(a) or

(b), so that they may adequately protect their interests on appeal.

Respectfully submitted,

/s/ Alec Scott Gibbs (P73593)Law Offices of Gregory T. Gibbs717 South Grand Traverse StreetFlint, MI 48502Attorneys for Proposed Intervening Plaintiffs

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PROOF OF SERVICE

I certify that on April 21, 2014, the foregoing document was served on all parties

or their counsel of record through the CM/ECF system if they are registered users or,

if they are not, by placing a true and correct copy in the United States mail, postage

prepaid, to their address of record.

/s/ Alec Scott Gibbs (P73593)Law Offices of Gregory T. Gibbs717 South Grand Traverse Street

Flint, MI 48502 Attorneys for Proposed Intervening Plaintiffs

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UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT

Appearance of Counsel

Sixth CircuitCase No.:

Case Name: vs.

Client’s orClients’ Name(s): (List all clients on this form, do not file a separate appearance form for each client.)

G Appellant

G Appellee

G Petitioner

G Respondent

G Amicus Curiae

G Intervenor

G Criminal Justice Act (Appointed)

Lead counsel must be designated if a party is represented by more than one attorney or law

firm. Check if you are lead counsel. G

Name: Admitted: (Sixth Circuit admission date only)

Signature:

Firm Name:

Business Address:

Suite: City/State/Zip:

Telephone Number (Area Code):

Email Address:

6ca-686/12

CERTIFICATE OF SERVICE

I certify that on the foregoing document was served on all parties ortheir counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing atrue and correct copy in the United States mail, postage prepaid, to their address of record.

s/


14-1341 #39

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