Lambda Legal and SC Equality File Memorandum in Opposition to Motion for Emergency Stay
November 16, 2014
To read the complete motion click here. The following is an excerpt:
Pursuant to the Court's Order, Appellees Colleen Therese Condon and Anne Nichols Bleckley submit the following memorandum opposing Appellant's Motion for Emergency Stay.
Appellant Alan Wilson, in his official capacity as Attorney General, (the "State") has asked this Court to stay the District Court's decision striking down as unconstitutional South Carolina's marriage laws that impede Plaintiffs' ability to marry their same-sex partners. That request should be denied because the State has failed to satisfy any of the necessary requirements for the issuance of a stay. Most notably, the State cannot demonstrate a likelihood of success on the merits because the District Court correctly concluded that the outcome of this case was determined by controlling precedentónamely, the final and binding decision of this Court in Bostic v. Schaefer, 760 F.3d 352 (4th Cir.) cert. denied sub nom. Rainey v. Bostic, 135 S. Ct. 286 (2014) and cert. denied, 135 S. Ct. 308 (2014) and cert. denied sub nom. McQuigg v. Bostic, 135 S. Ct. 314 (2014). As the District Court noted, all of the arguments made by the State as to why it would ultimately prevail on the merits were exhaustively addressed and rejected in Bostic. See Condon v. Hayley, No. 2:14-cv-04010-RMG, slip op. at 20 (citing Bostic, 760 F.3d at 377-84 (4th Cir. 2014). Indeed, even the State acknowledges that its request for a stay is based entirely on an argument that Bostic was wrongly decided. (State's Motion for Emergency Stay, pp. 4, 14-16.)
A motion for a stay premised on arguments that have already been thoroughly considered and rejected by this Court does not meet the State's burden of demonstrating a likelihood of success on the merits. Furthermore, the State cannot show that it will suffer irreparable injury if a stay is denied, that the Plaintiffs would not endure irreparable injury if a stay is issued or that a stay would serve the public interest. The Motion must, therefore, be denied.
Although Rule 8(a)(2) of the Federal Rules of Appellate Procedure allows this Court to issue a stay pending appeal, the party seeking a stay must show: (1) that it will likely prevail on the merits of the appeal, (2) that it will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay. Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970). The State has failed to meet any of the four requirements.
The State fails to show it is likely to succeed on the merits where it merely argues against recent Fourth Circuit precedent.
The State cannot demonstrate that it is likely to prevail on the merits.In Bostic, this Court considered and squarely rejected all of the arguments that the State raises as to why it would ultimately prevail on the merits. Baker v. Nelson, 409 U.S. 810 (1972), the United States Supreme Court's summary dismissal of an appeal of a failed challenge to Minnesota's law prohibiting same-sex couples from marrying. But in Bostic, this Court concluded that Baker did not bar Plaintiffs' claims. Similarly, the State argues that federalism principles deprive federal courts of the ability to consider constitutional challenges to marriage statutes, an argument that likewise was considered and rejected. Bostic, 760 F.3d at 375. 409 U.S. 810 (1972), the United States Supreme Court's summary dismissal of an appeal of a failed challenge to Minnesota's law prohibiting same-sex couples from marrying. But in Bostic, this Court concluded that Baker did not bar Plaintiffs' claims. Similarly, the State argues that federalism principles deprive federal courts of the ability to consider constitutional challenges to marriage statutes, an argument that likewise was considered and rejected. Bostic, 760 F.3d at 375. A recent, non-final decision from another circuit holding to the contrary does not satisfy the State's burden of showing a likelihood of ultimate success. In DeBoer v. Snyder, Nos. 14-1341, 14-5291, 14-3057, 14-5297, 14-3464, 14-5818, 2014 U.S. App. LEXIS 21191 (6th Cir. Nov. 6, 2014), petition for cert. filed, Obergefell, et al., v. Hodges, et al. (U.S. Nov.14, 2014) (No.14-556), a Sixth Circuit panel, in a split decision, reversed six lower court decisions from four states, all of which had struckdown state marriage bans as unconstitutional.