tennessee's motion to stay preliminary injunction (6th circuit)

8/12/2019 Tennessee's Motion to Stay Preliminary Injunction (6th Circuit)

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IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

VALERIA TANCO and SOPHY JESTY, )

et al., )

)

Plaintiffs-Appellees, )

)

vs. ) Case No. 14-5297

)

WILLIAM EDWARD BILL HASLAM, )

as Governor of the State of Tennessee, )

et al., )

)Defendants-Appellants. )

MOTION OF DEFENDANTS-APPELLANTS FOR

STAY PENDING APPEAL

Defendants William Edward Bill Haslam, Larry Martin, and Robert E.

Cooper, Jr., in their official capacities, have appealed to this Court the March 14,

2014 Order of the United States District Court for the Middle District of Tennessee

granting PlaintiffsMotion for Preliminary Injunction. The district courts order

enjoined Defendants from enforcing Tennessees Marriage Laws against the six

named plaintiffs, Tenn. Const. art. XI, 18, and Tenn. Code Ann. 36-3-113.

On March 18, 2014, Defendants moved the District Court, pursuant to Fed.

R. Civ. P. 62(c) and Fed. R. App. P. 8(a), for a stay of its order pending appeal.

The District Court denied that motion on March 20, 2014.

Case: 14-5297 Document: 14-1 Filed: 03/25/2014 Page: 1


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Defendants now move this Court, pursuant to Fed. R. App. P. 8(a)(2), for an

order staying the Order, Memorandum, and Preliminary Injunction entered by the

District Court on March 14, 2014, during the pendency of the appeal to this Court.

BACKGROUND

Plaintiffs are three same-sex couples married in other states before moving

to Tennessee. (R. 29, Motion for Preliminary Injunction). Tennessee law

recognizes marriages onlybetween one man and one woman. See Tenn. Const.

art. XI, 18; Tenn. Code Ann. 36-3-113 (collectively, Tennessees Marriage

Laws). Plaintiffs filed their complaint on October 21, 2013, claiming that

Tennessees Marriage Laws violated their constitutional rights to equal protection,

due process, and travel. (R. 1, Complaint, 8). On November 19, 2013, Plaintiffs

filed a motion for preliminary injunction, asking that the District Court compel

Defendants to recognize their marriages. (R. 29, 30, Motion and Memorandum for

Preliminary Injunction). On March 14, 2014, the District Court issued a

preliminary injunction barring Defendants and those under their supervision from

enforcing Tennessees Marriage Laws against the Plaintiffs. (R. 67, 68, 69, Order,

Memorandum, and Preliminary Injunction). On March 18, 2014, Defendants filed

a notice of appeal to this Court and a motion to stay the preliminary injunction with

the District Court pursuant to Fed. R. Civ. P. 62(c) and Fed. R. App. P. 8(a). (R.

72, 73, 74, Notice of Appeal and Motion and Memorandum for Stay Pending



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Appeal).

On March 20, 2014, the District Court denied Defendantsmotion for a stay

pending appeal. (R. 78, Order Denying Stay Pending Appeal). The District Court

determined that given the unanimity of opinion as to [same-sex marriage] in

district courts across the county, the court finds no serious question as to whether

this court conducted an appropriate constitutional analysis. (R. 78, Order

Denying Stay Pending Appeal, p. 4). The District Court also determined that there

was no risk of irreparable harm to the Defendants, as the injunction was limited to

only three same-sex couples. (R. 78, Order Denying Stay Pending Appeal, p. 7).

The District Court again ruled that Plaintiffs suffered irreparable harm without the

full panoply of rights and peace of mind associated with marriage. (R. 78,

Order Denying Stay Pending Appeal, p. 8). The District Court concluded that

Plaintiffs should not be required to jump through hoops to obtain some limited

measure of securityand that the public interest did not weigh in favor of staying a

ruling barring enforcement of a state law that the court would likely deem

unconstitutional. (R. 78, Order Denying Stay Pending Appeal, pp. 8-9).

STANDARD FOR A STAY PENDING APPEAL

When considering a stay pending appeal, a court must consider the

following factors: (1) whether the defendant has a strong or substantial likelihood

of success on the merits; (2) whether the defendant will suffer irreparable harm if



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the district court proceedings are not stayed; (3) whether staying the district court

proceedings will substantially injure other interested parties; and (4) where the

public interest lies. Baker v. Adams County/Ohio Valley School Bd., 310 F.3d

927, 928 (6th Cir. 2002).

I. LIKELIHOOD OF SUCCESS ON APPEALMovants seeking a stay pending appeal need not always establish a high

probability of success on the merits but instead must show, at a minimum, the

existence of serious questions going to the merits. Grutter v. Bollinger, 247 F.3d

631, 632-33 (6th Cir. 2001) (citing Michigan Coalition of Radioactive Material

Users, Inc. v. Griepentrog, 945 F.2d 150, 153-54 (6th Cir. 1991)).

There exists a strong likelihood that Defendants will succeed on appeal.

Plaintiffs have alleged violations of their rights to due process, equal protection,

and travel. (R. 1, Complaint, 8). However, their claims are based upon an overly

broad reading of the Supreme Courts recent decision in United States v. Windsor,

133 S.Ct. 2675 (2013), and an unsupported conclusion that there exists a

fundamental right to same-sex marriage.

Plaintiffs have asserted that they have a protected liberty interest in their

existing marital relationshipsand that Tennessees Marriage Laws deprive them of

that interest. In Windsor, the Supreme Court held invalid Section 3 of the federal

Defense of Marriage Act (DOMA), not because the recognition of same-sex



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marriages is required by the Federal Constitution but because the federal

government lacks authority to discriminate between opposite-sex and same-sex

marriages when both are recognized under a particular states law. See id. at

2694. It was thefederalgovernments depart[ure] from this history and tradition

of reliance on state law to define marriage that gave rise to the deprivationthat the

Court held to be unconstitutional. Id. at 2692. Therefore, Windsor does not render

Tennessees Marriage Laws unconstitutional.

There exists no constitutional right to same-sex marriage. The concept of

same-sex marriage is not deeply rooted in this Nations history and tradition;

indeed, same-sex marriage was unknown in the laws of this Nation before 2003.

See Windsor, 133 S.Ct. at 2715 (Alito, J., dissenting). Supreme Court decisions

recognizing a fundamental right to marriage all involved marriage with a qualified

person of the opposite sex. SeeJackson v. Abercrombie, 884 F.Supp.2d 1065,

1095 (D. Haw. 2012).

Further, with regard to Plaintiffsdue-process and equal-protection claims,

Tennessee has a rational basis to limit marriage to opposite-sex couples. A

traditional purpose for the institution of marriage was to ensure that procreation

would occur only within the confines of a stable family unit. SeeNoah Webster,

An American Dictionary of the English Language 897 (1st ed. 1828) (marriage

was instituted . . . for the purpose of preventing the promiscuous intercourse of



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the sexes, for promoting domestic felicity, and for securing the maintenance and

education of children);see also Windsor, 133 S.Ct. at 2718 (Alito, J., dissenting)

(there is no doubt that, throughout human history and across many cultures,

marriage has been viewed as an exclusively opposite-sex institution and as one

inextricably linked to procreation and biological kinship). Tennessee certainly

has a legitimate interest in promoting family continuity and stability. See

Nordinger v. Hahn, 505 U.S. 1, 17 (1992); see also Citizens for Equal Protection

v. Bruning, 455 F.3d 859, 864-869 (8th Cir. 2006) (finding that Nebraskas laws

recognizing that only marriage between a man and a women is valid are

rationally related to legitimate state interests, such as encouraging procreation to

take place within marriage, and did not violate the Equal Protection Clause).

Given that [s]ame-sex couples cannot naturally procreate, Jackson v.

Abercrombie, 884 F.Supp.2d 1065, 1112 (D. Haw. 2012), there is certainly nothing

irrationalabout limiting the institution of marriage to the purpose for which it was

created, by embracing its traditional definition. See Johnson v. Robinson, 415 U.S.

361, 383 (1974) (rational basis exists where theinclusion of one group promotes a

legitimate governmental purpose, and the addition of other groups would not.).

In concluding that Defendants were not likely to succeed on the merits, the

District Court concluded that [t]he defendants have not persuaded the court that

Tennessees Anti-Recognition Laws will likely suffer a different fate than the anti-



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recognition laws struck down and/or enjoined inBourke, Obergefell,andDeLeon,

noting that [d]efendants offer arguments. . . that Anti-Recognition Laws have a

rational basis because they futher a states interest in procreation, which is

essentially the only rational basis advanced by the defendants here. (R. 67,

Memorandum on Order for Preliminary Injunction, pp. 13-14). But it is not the

Defendants responsibility to prove a rational basis; instead, [t]he existence of

facts supporting the legislative judgment is to be presumed. American Exp.

Travel Related Services Co., Inc. v. Kentucky, 641 F.3d 685, 693 (6th Cir. 2011)

(quoting United States v. Carolene Prods., 304 U.S. 144, 152 (1938)). The

heavy burden of negat[ing] every conceivable basis which might support [the

enactment] should have been placed on the Plaintiffs. Id.at 694(quotingHadix v.

Johnson, 230 F.3d 840, 843 (6th. Cir. 2000)).

Other courts that have ruled on the constitutionality of state marriage laws

have stayed their ruling, or have had them stayed by a higher court. InHerbert v.

Kitchen, No. 2:13-cv-00217 (C.D. Utah Dec. 20, 2013) (R. 48-2), the permanent

injunction issued by the district court enjoining Utah from enforcing its ban on

same-sex marriage was stayed by the United States Supreme Court without any

dissent after the request was referred to the full court by Justice Sotomayor.

Herbert v. Kitchen, No. 13A687, 571 U.S. ___, 2014 WL 30367 (Jan. 6, 2014)

(copy attached). Consistent with the Supreme Courts issuance of a stay, the



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district courts in De Leon v. Perry, No. SA-13-CA-00982-OLG (W.D. Tex. Feb.

26, 2014) (R. 58-1, Opinion Attachment to Plaintiffs Notice of Filing); Bostic v.

Rainey, No. 2:13-cv-395-JGH (E.D. Va. Feb. 13, 2014) (R. 56-1, Opinion

Attachment to Plaintiffs Notice of Filing); and Bishop v. Holder, No. 04-cv-848-

TCK-TLW (N.D. Okla. Jan. 14, 2014), all stayed their respective decisions.

Notably, the District Court for the Western District of Kentucky, whose

February 27, 2014 final order the District Court here found especially persuasive

(R. 67, Memorandum on Order for Preliminary Injunction, pp. 13-14), recently

stayed its final order pending appeal. Love v. Beshear, No. 3:13-CV-750-H (W.D.

Ky. Mar. 19, 2014) (copy attached). In so doing, the district court noted that [i]t

is best that these momentous changes occur upon full review, rather than risk

premature implementation or confusing changes. That does not serve anyone

well. Id.at 4. The district court also found, in contrast to the District Court in

this matter, that one must admit that the ultimate resolution of these issues is

unknown. Id. at 2. That two district courts could reach opposite conclusions

regarding the necessity of a stay pending appeal demonstrates that there are

serious questions going to the merits. Grutter, 247 F.3d at 632-33.

II. IRREPARABLE HARM TO DEFENDANTSThe District Courts decision prohibits enforcement of Tennessees

definition of marriage, contrary to the democratically chosen public policy of the



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State of Tennessee. For the District Court to override the results of Tennessees

valid democratic process constitutes irreparable harm requiring the issuance of a

stay pending appeal. As members of the Supreme Court have recently noted, any

time a State is enjoined by a court from effectuating statutes enacted by

representatives of its people, it suffers a form of irreparable harm.Planned

Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 571 U.S. 506 (2013)

(Scalia, J., concurring in denial of application to vacate stay of an injunction)

(quotingMaryland v. King, 567 U.S. 1, 3 (2012) (Roberts, C.J., in chambers)). See

also New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345 (1977)

(Rehnquist, J., in chambers) (It also seems to me that any time a State is enjoined

by a court from effectuating statutes enacted by representatives of its people, it

suffers a form of irreparable injury.).

The District Court stressed that its injunctive ruling applies only to six

Tennessee residents with out-of-state same-sex marriages and that the impact on

the State of Tennessee will not be significant. But the District Courts ruling sends

the message to all similarly situated residents of Tennessee that they, too, can

secure such injunctive relief. Indeed, the District Courts determination of harm to

Plaintiffs Kostura and DeKoe rests solely upon the alleged indignities they suffer

and the uncertainty of their martial protectionssubjective harms that can

arguably be applied to any other same-sex couple with an out-of-state marriage.



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(R. 67, Memorandum on Order for Preliminary Injunction, pp. 15-16). Such harm

is insufficient to warrant preliminary injunctive relief, as discussed below, and the

district courts ruling to the contrary opensthe gates to injunctive relief for future

plaintiffs.1

III. LACK OF IRREPARABLE HARM TO PLAINTIFFSPlaintiffs will not be irreparably harmed by a stay pending appeal. Although

the District Court has found the circumstances of Plaintiffs Tanco and Jesty

particularly compelling, their concerns regarding healthcare decisions arising

from the birth of their child can be (or could have been) addressed through legal

methods such as powers of attorney and advanced directives. The alleged

irreparable harm that could hypothetically occur during Plaintiff Tancos childbirth

could have been obviated had Plaintiffs Jesty and Tanco availed themselves of

these protective legal methods, as the Defendants pointed out in the district court.

(R. 35, Defendants Response to Motion for Preliminary Injunction). Plaintiffs

cannot rely on [their] own [in]action[ ] to create the risk of irreparable injury.

Vantico Holdings, S.A. v. Apollo Management, LP, 247 F.Supp.2d 437, 454

(S.D.N.Y. 2003). And their concerns regarding visitation at the University of

1 The district court expressed no opinion concerning the potentialapplication of its ruling statewide, if these or any other potential plaintiffs were to

request broader relief in the future. (R. 67, Memorandum on Order for

Preliminary Injunction, n. 4). But the ease with which Plaintiffs DeKoe andKostura received injunctive relief says otherwise.



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Tennessee Medical Center should unforeseen medical complications arise during

childbirth are unfounded: 42 C.F.R. 482.13 requires the Medical Center to

inform Plaintiff Tanco of her right to receive the visitors whom he or she

designates, including but not limited to, a spouse, a domestic partner (including a

same-sex domestic partner), another family member, or a friend. (R. 32-1, 17;

R. 32-2, 17, Declarations in Support of Plaintiffs Motion for Preliminary

Injunction). Plaintiffs Tanco and Jesty also assert various real-property concerns

easily remedied with proper legal planning. (R. 67, Memorandum on Order for

Preliminary Injunction, p. 16). This may well be time-consuming and expensive,

as the District Court found (R. 67, Memorandum on Order for Preliminary

Injunction, p. 16), but the harm is not irreparable.

Beyond that, the District Court pointed to the indignity and stigmatization

that Plaintiffs experience. (R. 67, Memorandum on Order for Preliminary

Injunction, pp. 15-16). It is well settled that reputational damage falls far short of

the type of irreparable injury which is a necessary predicate to issuance of a

temporary injunction. Sampson v. Murray, 415 U.S. 61, 88, 91-92 (1974). So too

do [m]ere injuries, however substantial, in terms of money, time and energy. Id.

at 90. The harm alleged in Plaintiffs declarations, which the District Court

described as dignitary and which would force Plaintiffs to engage in time-

consuming and expensive measures to secure them (R. 67, Memorandum on



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Order for Preliminary Injunction, pp. 15-16), is the kind of harm Sampsonsays is

insufficient. The perceived need for the Plaintiffs to jump through hoops in

order to obtain legal protections similar to those associated with marriage (R. 78,

Order Denying Stay Pending Appeal, p. 8) is insufficient to stay the enforcement

of Tennessee law.

IV. PUBLIC INTERESTThe purpose of a preliminary injunction is merely to preserve the relative

positions of the parties until a trial on the merits can be held. Southern Milk

Sales, Inc. v. Martin, 924 F.2d 98 (6th Cir. 1991) (citing University of Texas v.

Camenisch, 451 U.S. 390, 395 (1981)). But the District Courts preliminary

injunction changesthe relative position of the parties and altersthe status quo. A

stay is necessary to restore them pending appeal, particu larly where the courts

order has silenced the valid preference of the people of the State of Tennessee to

define marriage within its borders.

Likewise, the public interest favors federal courts denying extraordinary

injunctive relief that may affect state domestic policy or the good-faith functioning

of state officials. See generally Ala. Pub. Serv. Commn v. S. Ry. Co., 341 U.S.

341, 351 (1951) (finding [i]t is in the public interest that federal courts of equity

should exercise their discretionary power to grant or withhold relief so as to avoid

needless obstruction of the domestic policy of the states.). Accordingly, both the



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public interest and the balance of harm to Tennessee and its citizenry militate in

favor of staying the District Court order pending appeal.

The District Court for the Western District of Kentuckys decision to stay its

final order is instructive here.

[T]he public interest is twofold: that the Constitution beupheld, and that changes in the law be implemented

consistently and without undue confusion. The Court has

concerns about implementing an order which hasdramatic effects, and then having that order reversed,

which is one possibility. Under such circumstances,

rights once granted could be cast in doubt.

Love v. Beshear, No. 3:13-CV-750-H, at 2-3 (W.D. Ky. Mar. 19, 2014). Given the

uncertainty on an issue that has yet to be considered by this Court, the public

interest is best served by maintaining the status quo pending appeal.

Respectfully submitted,

ROBERT E. COOPER, JR.Attorney General and Reporter

JOSEPH F. WHALEN

Acting Solicitor General

s/Martha A. Campbell

MARTHA A. CAMPBELL #14022

Deputy Attorney GeneralGeneral Civil Division

Cordell Hull Building, Second Floor

P. O. Box 20207Nashville, TN 37214

(615) [email protected]



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CERTIFICATE OF SERVICE

I hereby certify that on March , 2014, a copy of the foregoing was filed

electronically. Notice of this filing will be sent by operation of the Courtselectronic filing system to all parties indicated on the electronic filing receipt.

Parties may access this filing through the Courts electronic filing system.

Notice of this filing will be sent via first class mail, postage prepaid, to thefollowing parties:

Jonathan Scruggs, Esq.Alliance Defending Freedom

1511 N. 90thStreet

Scottsdale, Arizona 85260Attorney for Amicus Curiae Family Action Council of Tennessee

s/ Martha A. CampbellMARTHA A. CAMPBELL

TBPR# 14022

Office of the Attorney General

P.O. Box 20207Nashville, TN 37202

(615) 741-6420


tennessee's motion to stay preliminary injunction (6th circuit)

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