Case 5:13-cv-00077-MFU-RSB Document 54 Filed 10/03/13 Page 1 of 11 Pageid#: 406

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION JOANNE HARRIS, et al., Plaintiffs, v. ROBERT F. McDONNELL, JANET M. RAINEY, and THOMAS E. ROBERTS, in their official capacities Defendants. ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 5:13-cv-00077

STATE DEFENDANTS' BRIEF IN SUPPORT OF MOTION TO SUSPEND SCHEDULING ORDER, TO STAY BRIEFING OR, IN THE ALTERNATIVE, TO ESTABLISH A BRIEFING SCHEDULE COME NOW, Robert F. McDonnell, Governor of Virginia, and Janet M. Rainey, State Registrar of Vital Records, in their official capacities, by counsel, and for their Brief in Support of their Motion to Suspend Scheduling Order, to Stay Briefing, or in the Alternative, to Establish a Briefing Schedule state as follows: The first case challenging the constitutionality of Virginia's marriage laws was filed in the Norfolk Division of the Eastern District of Virginia, Bostic, et al. v. McDonnell, et al., No. 2:13-cv-00395 (Allen, J.), was filed on July 18, 2013. See (No. 2:13-cv-00395 Doc. 1

(Attachment 1)). Although it has since been amended to replace Governor McDonnell and Attorney General Cuccinelli, following a motion to dismiss those parties on grounds of sovereign immunity, (Docs. 7, 8, 18, 19), the parties are now at issue on the Bostic complaint. Because Plaintiffs in Bostic appear to agree that the case is a pure question of law turning on nonevidentiary, legislative facts, the parties in Bostic have filed cross-motions for summary

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judgment on an agreed, court-adopted, briefing schedule that runs through October 31, 2013. See (No. 2:13-cv-00395 Doc. 17 (Attachment 2)). In this case Plaintiffs expressly pled that the case should be triedat least in parton adjudicative facts. (Doc. 1 at 19-27). Although the State Defendants in consultation with counsel for Plaintiffs have repeatedly expressed the view that Plaintiffs' position on adjudicative evidence is legally incorrect. Nonetheless the State Defendants have also suggested that the only practical and efficient way to determine whether Plaintiffs' evidence is admissible is through discovery and pretrial motions. That was the purpose underlying the trial scheduling order. Now Plaintiffs want to do both: bring on an immediate summary judgment motion while preparing for trial. The State Defendants object. Permitting Plaintiffs' motion for summary judgment to be briefed at this stage in the proceedings would needlessly compress discovery preparations under this Court's order, (Doc. 43), as well as preparations for and argument on the motion for class certification and the motions to dismiss filed by Governor McDonnell and Clerk Roberts. These matters are

scheduled to be heard within the month, on October 29, 2013, (Doc. 41), a hearing Plaintiffs now propose to enlarge to also include argument on their motion for summary judgment. Taking up dispositive motions in this procedural posture would run counter to the purposes of Rule 23. That Rule, as interpreted by circuit precedent, counsels first deciding the motions to dismiss and for class certificationresolving who is suing whom and thus bound by the judgmentprior to deciding what the judgment is. Accordingly, briefing on summary judgment should be stayed pending decision in the Bostic litigation. In the alternative, the State Defendants request that a briefing schedule be set on Plaintiffs' Motion for Summary Judgment, (Doc. 44), that would

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commence following the completion of briefing in that case and this Court's resolution of the Defendants' Motions to Dismiss and the Plaintiffs' Motion to Certify a Class. ARGUMENT At the filing of this suit, Plaintiffs plead that they would present evidentiary facts that would entitle them to relief, see (Doc. 1 at 19-27), and advised the Court in striking terms that this was the course they intended to pursue. Most prominently, Plaintiffs relied upon their intention to pursue an evidentiary, facts-based challenge to Virginia's marriage laws in contending that the first-to-file rule was inapplicable. (Doc. 40 at 6) (representing that "Plaintiffs in this action intend to submit expert testimony and evidence in support of their constitutional claims" and thus contending that, "[i]n light of the different litigation strategies of the two sets of plaintiffs, invoking the 'first to file rule in these circumstances makes little sense." (emphasis added)). Now that Plaintiffs have abandoned that intent, the concerns for comity, conservation of judicial resources, and avoidance of needless litigation underlying the first-to-file rule are fully applicable and justify intervention by the court. I. First-to-File Rule Applies and Counsels, At Least, Staying the Briefing Pending a Ruling on Cross-Motions for Summary Judgment in Bostic.

As a species of abstention, the first-to-file rule has long been recognized as aimed at preserving judicial (and party) resources and avoiding inconsistent holdings by courts of equal dignity in the federal system. "As between federal district courts, . . . the general principle is to avoid duplicative litigation." Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976); see W. Gulf Maritime Ass'n v. ILA Deep Sea Local 24, 751 F.2d 721, 728 (5th Cir. 1985) ("The federal courts long have recognized that the principle of comity requires federal district courtscourts of coordinate jurisdiction and equal rankto exercise care to avoid interference with each other's affairs."); see also Cont'l Grain Co. v. Barge FBL-585, 364 U.S. 3

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19, 26 (1960) (noting that courts should not "permit a situation in which two cases involving precisely the same issues are simultaneously pending in different District Courts," as it "leads to wastefulness of time, energy and money."). Thus, the first-to-file rule counsels courts to be vigilant to conserve judicial resources and to prevent wasteful litigation. Byerson v. Equifax Info. Servs., LLC, 467 F. Supp. 2d 627, 635-36 (E.D. Va. 2006) ("The policy underlying the firstto-file rule is the avoidance of duplicative litigation and the conservation of judicial resources."); Laughlin v. Edwards Business Machs., 155 F.R.D. 543, 545 (W.D. Va. 1994) (same). "The 'first-to-file' rule is [one] of federal comity, intended to avoid conflicting decisions and promote judicial efficiency, that generally favors pursuing only the first-filed action when multiple lawsuits involving the same claims are filed in different jurisdictions." Merial Ltd. v. Cipla Ltd., 681 F.3d 1283, 1299 (Fed. Cir. 2012); accord UtahAmerican Energy, Inc. v. Dep't of Labor, 685 F.3d 1118, 1124 (D.C. Cir. 2012) (per curiam) ("'[C]onsiderations of comity and orderly administration of justice dictate that two courts of equal authority should not hear the same case simultaneously.'" (citation omitted)); Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 950 (5th Cir. 1997) ("The 'first to file' rule is grounded in principles of comity and sound judicial administration."). The Fourth Circuit has long hewed to the rule "that when multiple suits are filed in different Federal courts upon the same factual issues, the first or prior action is permitted to proceed to the exclusion of another subsequently filed." Allied Gen. Nuclear Servs. v. Commonwealth Edison Co., 675 F.2d 610, 611 n.1 (4th Cir. 1982) (emphasis added) (citing Carbide & Carbon Chems. Corp. v. U.S. Indus. Chems., Inc., 140 F.2d 47, 49 (4th Cir. 1944)); see Great Am. Ins. Co. v. Gross, 468 F.3d 199, 206 (4th Cir. 2006) ("As between two federal district courts, the general rule is that duplicative litigation should be avoided."); Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581, 594-95 (4th Cir. 2004) ("'[T]he first

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suit should have priority, absent the showing of balance of convenience in favor of the second action.'" (quoting Ellicott Mach. Corp v. Modern Welding Co., Inc., 502 F.2d 178, 180 n.2 (4th Cir. 1974))). Because the first-to-file rule creates "a strong presumption of priority [in favor of] the first filed action," Fed. Home Loan Mortg. Corp. v. Mortgage Guar. Ins. Corp., No. 1:12-cv539, 2012 U.S. Dist. LEXIS 93208, at *11-12 (E.D. Va. July 5, 2012), it falls to the party opposing application of the rule to demonstrate that the rule does not apply. See, e.g., Smithfield Packing Co. v. V. Suarez & Co., 857 F. Supp. 2d 581, 588 (E.D. Va. 2012). In applying the first-to-file rule, the controlling date is, unsurprisingly, the date of filing. Also unsurprising in view of the aims of avoiding conflicting decisions and promoting judicial efficiency, where "the core issue" is the same in both suits, the first-to-file rule should be applied and the second suit transferred, stayed or dismissed, as there is no remedial or jurisprudential value in obtaining competing judgments from district courts. See West Gulf, 751 F.2d at 730; cf. Fox Grp., Inc. v. Cree, Inc., 749 F. Supp. 2d 410, 416 (E.D. Va. 2010) (transferring a case to the Southern District of New York on the ground that it was filed there two months earlier and sought "to determine the same ultimate issue" (emphasis added)); Federated Mut. Ins. Co. v. Pactiv Corp., No. 5:09-cv-00073, 2010 U.S. Dist. LEXIS 12598, at *6, *11-12 (W.D. Va. 2010) (holding that the first-to-file rule applies "when two federal actions relating to the same subject matter are pending"). It thus follows that "[p]laintiffs may not pursue multiple federal suits against the same party," here, in effect, the Commonwealth of Virginia, "involving the same controversy," here, the constitutionality of Virginia's definition of marriage vis-a-vis same-sex couples, "at the same time." Missouri ex rel. Nixon v. Prudential Health Care Plan, Inc., 259 F.3d 949, 954 (8th Cir. 2001).

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As the Bostic plaintiffs have agreed, (Doc. 38 at 4), a final judgment as to the constitutionality of Virginia's definition of marriage must be presumed to control the judgment of all Virginia officials, demonstrating that duplicative briefing on motions for summary judgment based upon legislative fact would afford Plaintiffs no more or less relief than will be had following resolution of Bostic. And any judgment will be subject to an appeal as of right to the Fourth Circuit. See 28 U.S.C. 41, 127, 1291, 1294(1); Fed. R. App. 4. Accordingly, to paraphrase Plaintiffs, "[i]n light of the [no longer] different litigation strategies of the two sets of plaintiffs, invoking the 'first to file' rule in these circumstances [now] makes [good] sense." (Doc. 40 at 6.) If the briefing of Plaintiffs' motion for summary judgment is not stayed pending a decision on cross-motions in the first-filed case, or at least delayed for later briefing, State Defendants will be obliged both to respond to Plaintiffs' motion for summary judgment no later than Tuesday, October 15 and to make initial disclosures on Thursday, October 17, as if this matter were proceeding to trial next year, as scheduled. See (Doc. 43 at 1, 3.) Plaintiffs will be obliged to make initial disclosures on the 17th and reply five days later. And Plaintiffs have proposed arguing that motion, along with another three, seven days later. State Defendants thus submit that there is good cause to stay this matter, or at least grant an enlargement of time in which to respond. This conclusion also finds analogous support in the case law. Then-Judge Anthony Kennedy, who in affirming dismissal of an action brought against the State of Washington and its officials challenging the constitutionality of regulations promulgated by that State, relied upon the fact "that the propriety of these regulations was concurrently being considered by" another district court in an action brought by a different plaintiff against the State of Washington. Bergh

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v. State of Washington, 535 F.2d 505, 507 (9th Cir. 1976). It being plain that the core concerns of the first-to-file ruleduplicative litigation that wastes judicial and litigant resourcesapply, and that Plaintiffs are engaged in a transparent attempt to leapfrog the Bostic litigation by forcing State Defendants to respond to their sixty-page brief prior to responding in the Norfolk case, compare (Doc. 43), with (No. 2:13-cv-00395 Doc. 17), a stay is amply justified to avoid interfering with the established briefing schedule in the first-filed case. II. Furthermore, Briefing on the Motion for Summary Judgment Should Be Stayed or Rescheduled Until the Motions to Dismiss and Motion for Class Certification Have Been Resolved, As Required by Rule 23.

Under Rule 23, "[a]t an early practicable time after a person sues . . . as a class representative, the court must determine by order whether to certify the action as a class action." Fed. R. Civ. P. 23(c)(1)(A). State Defendants were sued two months ago by Plaintiffs purporting to proceed on behalf of various classes. (Doc. 1 at 1, 1, at 27-29, 74-80.) On August 16, Plaintiffs moved to certify the class. (Docs. 26, 27.) State Defendants and Defendant Roberts both opposed shortly thereafter, (Docs. 30, 36), and nearly a month ago Plaintiffs' replied. (Doc. 39.) That motion, along with motions to dismiss the Governor and Clerk Roberts, has been scheduled for argument within the month. (Doc. 41.) In view of these facts, it would be improper to entertain motions going to the merits of this action at this time, while a fundamental questionwho are the plaintiffs and who are the Defendantsremains unanswered although fully briefed and scheduled for argument. Moreover in this circuit "the determination of class status is to be made 'before the decision on the merits.'" Nance v. Union Carbide Corp., Consumer Prods. Div., 540 F.2d 718, 724 (4th Cir. 1976), vacated in part on other grounds, 431 U.S. 952 (1977); accord Delebreau v. Bayview Loan Servicing, LLC, 770 F. Supp. 2d 813, 818 (S.D. W. Va. 2011); Pruitt v. Allied Chem. Corp., 85 F.R.D. 100, 104 (E.D. Va. 1980). In fact, the "[c]ourts have held that in 7

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general, issues relating to class certification should be decided before a decision on the merits is rendered." Mendez v. The Radec Corp., 260 F.R.D. 38, 44 (W.D.N.Y. 2009) (citing cases). The purpose of the early certification requirement is to provide the parties with information concerning the scope of, and the rights implicated by, the action and to protect the parties from prejudice. Early certification helps the parties to identify what is at stake in the case so that litigation strategies may be chosen accordingly. In addition, a failure to decide certification early in the proceedings leaves open questions as basic as who is or will be bound by any judgment in the action, the scope of discovery and trial, and what procedures the parties will need to complete before trial, all of which creates uncertainty for the parties and makes appellate review more difficult. 5 JEROLD S. SOLOVY,
ET AL.,

MOORE'S FEDERAL PRACTICE - CIVIL 23.81[1] (2013); see also

Partington v. Am. Int'l Specialty Lines Ins. Co., 443 F.3d 334, 340 (4th Cir. 2006) ("Federal courts may only adjudicate the rights of putative class members upon certification of that class under Federal Rule of Civil Procedure 23."). Consistent with these purposes and the requirement that the decision be made "at an early practicable time," it is generally recognized that courts may rule on dispositive motions brought on by defendants prior to a determination of class certification. See Curtin v. United Airlines, Inc., 275 F.3d 88, 93 (D.C. Cir. 2001) ("[W]here the merits of the plaintiffs' claims can be readily resolved on summary judgment, where the defendant seeks an early disposition of those claims, and where the plaintiffs are not prejudiced thereby, a district court does not abuse its discretion by resolving the merits before considering the question of class certification."); Floyd v. Bowen, 833 F.2d 529, 534-35 (5th Cir. 1987) (same); see, e.g., Reynolds v. Barrett, 741 F. Supp. 2d 416, 425 (W.D.N.Y. 2010) ("In each of the cases at bar, defendants have moved for summary judgment, dismissing the claims in their entirety. They have therefore implicitly waived any right they may have had to have class certification issues decided first."). Dispositive motions brought on by Plaintiffs are another matter.

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Plaintiffs concede that deciding whether Plaintiffs are entitled to summary judgment with regard to Virginia's marriage laws does not constitute "an easy decision," see (Doc. 52); plainly, "the propriety of certification" is not the "harder decision." Curtin, 275 F.3d at 92 (noting that "it is often more efficient and fairer to the parties to decide the class question first" and that that rule does not hold only where it is apparent that plaintiffs' case should be dismissed at the outset, "spar[ing] both the parties and the court a needless, time-consuming inquiry into certification."). Therefore, there is no reason for the Court to depart from the general rule to avoid deciding the merits of this dispute before the parties to it have been set. And, of course, the State Defendants have requested discovery on class certification issues. (Doc. 30). CONCLUSION For all the foregoing reasons, briefing on Plaintiffs' Motion for Summary Judgment should be stayed pending a decision on the cross-motions for summary judgment currently pending in the first-filed case, Bostic v. Rainey, No. 2:13-cv-00395, or, in the alternative, a briefing schedule be set with due regard for the briefing presently underway in Bostic. In the interim, the regular trial scheduling order should be suspended. Respectfully Submitted, ROBERT F. MCDONNELL and JANET M. RAINEY, in their official capacities By: /s/ E. Duncan Getchell, Jr. Solicitor General of Virginia (VSB No. 14156) Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-7240 Telephone (804) 371-0200 Facsimile dgetchell@oag.state.va.us 9

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Kenneth T. Cuccinelli, II Attorney General of Virginia Rita W. Beale, VSB #37032 Deputy Attorney General E-mail: rbeale@oag.state.va.us Allyson K. Tysinger, VSB #41982 Senior Assistant Attorney General/Chief E-mail: atysinger@oag.state.va.us Michael H. Brady, VSB #78309 Assistant Solicitor General E-mail: mbrady@oag.state.va.us

10

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CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of October 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notice of such filing to counsel who are registered CM/ECF users.

/s/ E. Duncan Getchell, Jr.

11

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Attachment 1 STATE DEFENDANTS' BRIEF IN SUPPORT OF MOTION TO SUSPEND SCHEDULING ORDER, TO STAY BRIEFING OR, IN THE ALTERNATIVE, TO ESTABLISH A BRIEFING SCHEDULE

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UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA-NORFOLK DIVISION

TIMOTHY B. BOSTIC,
and

TONY C. LONDON,

Plaintiffs,

CASE NO. A\ \~hcM V\&

ROBERT F. MCDONNELL, in his official

capacity as Governor of Virginia, and

KENNETH T. CUCCINELLI, in his official

capacity as Attorney General of Virginia, and

GEORGE E. SCHAEFER, III, in his official

capacity as the Clerk of Court for Norfolk Circuit Court,

Defendants.

COMPLAINT FOR DECLARATORY. INJUNCTIVE AND OTHER RELIEF

Plaintiffs Timothy B. Bostic ("Bostic"") and Tony C. London ("London"), by counsel,

complain of Defendants and allege the following.
INTRODUCTION

1.

More than 30 years ago, the Supreme Court of the United States recognized that

"[m]arriage is one of the 'civil rights of man,' fundamental to our very existence and survival."
Loving v. Virginia, 388 U.S. 1,12 (1967). But today, as a result of both state statute and the state

constitution, the Commonwealth of Virginia denies its gay and lesbian residents access to

marriage. Article I, 15-A of Virginia's Constitution provides that "only a union between one
1

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man and one woman may be a marriage valid in or recognized by this Commonwealth and its
political subdivisions." Va. Const., Art. I, 15-A. Similarly, Va. Code 20-45.2 states that a

"marriage between persons of the same sex is prohibited" in the Commonwealth of Virginia.
This code section also states that "[a]ny marriage entered into by persons of the same sex in

another state or jurisdiction shall be void in all respects in Virginia and any contractual rights
created by such marriage shall be void and unenforceable." Virginia law also prohibits civil

unions among same-sex individuals. Va. Code 20-45.3. This unequal treatment of gays and
lesbians denies them the basic liberties and equal protection under the law that are guaranteed by
the Fourteenth Amendment to the United States Constitution.

2.

For these reasons, Plaintiffs ask this Court to enjoin, preliminarily and

permanently, all enforcement of statutes that seek to exclude gays and lesbians from access to
civil marriage and civil union.
JURISDICTION AND VENUE

3.

This case raises questions under the Constitution of the United States and 42

U.S.C. 1983, and, thus, this Court has jurisdiction over all claims for relief pursuant to 28
U.S.C. 1331.

4.

Venue is proper in this Court pursuant to 28 U.S.C. 1391(b) because all

Defendants reside in the State of Virginia and in the Eastern Districtof Virginia. Venue is also
proper in this Court because a substantial part of the events giving rise to the claim occurred in
this district.

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NATURE OF DISPUTE

5.

This action, brought pursuant to 42 U.S.C. 1983, seeks (1) a declaration that

Virginia Code 20-45.2 and 20-45.3 and Article I, 15-A of the Virginia Constitution-

provisions that expressly deny gay and lesbian individuals the opportunity to marry civilly and
enter into the same officially sanctioned family relationship with their loved ones as heterosexual

individuals are unconstitutional under the Due Process and Equal Protection clauses of the

FourteenthAmendmentto the United States Constitution; and (2) a preliminary and permanent
injunction preventing Defendants from enforcing these provision against Plaintiffs.

6.

Plaintiffs Bostic and London are gay individuals in a long-standingcommitted

relationship. Plaintiffs have been in this relationship since 1989. Plaintiff London served in the

United StatesNavy and has been a real estate sales agent/realtor for 16 years. PlaintiffBostic is a
professor of humanities at Old Dominion University in Norfolk, Virginia. Bostic and London

desire to express theirlove for and commitment to one another by getting married and obtaining
official sanction for their union from the Commonwealth. Bostic and London sought to obtain a

marriage license from the Clerk of the Circuit Court for the city of Norfolk on or about July 1,
2013, but were turned down because of the Virginia statute and the Virginia Constitution.

7.

To enforce the rights afforded by the United States Constitution, Plaintiffs bring

this suitpursuant to 42 U.S.C. 1983 for declaratory and injunctive reliefbarring enforcement of
Va. Code 25-45.2 and 20-45.3 and Article I, 15-Aof the Virginia Constitution. Plaintiffs

also seek to recover all their attorneys' fees, costs, and expenses incurred in this action and any
other relief that this Court may order and deem appropriate.

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THE PARTIES

8.

Plaintiff Bostic is a Virginia citizen and resides in Norfolk, Virginia.

9.
10.

Plaintiff London is a Virginia citizen and resides in Norfolk, Virginia.

Defendant Robert F. McDonnell is the Governor of the Commonwealth of

Virginia. In his official capacity, the Governor is the chief executive officer of the

Commonwealth of Virginia. It is his responsibility to ensure that the laws of the Commonwealth

are properly enforced. The Governor resides in Richmond, Virginia, in the Eastern District of Virginia, and maintains an office in Norfolk, Virginia. 11. Defendant Kenneth T. Cuccinelli is the Attorney General of the Commonwealth

of Virginia. In his official capacity, the Attorney General is the chief legal officer of the
Commonwealth of Virginia. It is his duty to see that the laws of the Commonwealth are

uniformly and adequately enforced. The Attorney General lives in Richmond, Virginia, in the
Eastern District of Virginia, and maintains an office in Norfolk, Virginia.

12.

Defendant George E. Schaefer, III, is the Clerk of the CircuitCourt for the Cityof

Norfolk. Pursuant to Va. Code 20-14, "[e]very license for marriage shall be issued by the clerk
or deputy clerk of a circuit court of any county or city." Therefore, Defendant Schaefer, in his

official capacity as clerk, has the duty to issue marriage licenses in Norfolk, Virginia to residents
of his city seeking to marry.
FACTS

13.

Gayand lesbianindividuals have faced a long and painful history of societal and

government-sponsored discrimination in this country. Although their sexual orientation bears no

relation to theirability to contribute to society, gays and lesbians have beensingled out for

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discriminatory treatment. They have faced unconstitutional criminal penalties for private sexual

conduct between consenting adults, harassment, hate crimes, and discrimination in employment

and many other areas. They have even been the subject of laws stripping them of rights afforded
to all other citizens.

14.

Since at least 1975, pursuant to Va. Code 20-45.2, same-sex couples have been

denied marriage licenses on accountof their sexual preference and on account of their gender. In November 2006, Virginia voters ratifieda constitutional amendment to their Bill of Rights
expressly depriving gay and lesbian voters of the right to marry.

15.

Virginia's statutory and constitutional regime have created a legal system in which

civil marriage is restricted solely andexclusively to opposite-sex couples, and in which gay and
lesbian individuals are denied the rightto enter into a civil marriage with the person of their

choice. Virginia law, unlike the law in many other states, even prohibits gay and lesbian couples
from entering into civil unions. Virginia law also fails to honor the laws of thirteen other states

and the District of Columbia, which allowfor same-sex marriage, by providing that such marriages are"void in all respects" and by stipulating that anycontractual rights from such valid

marriages "are void and unenforceable" in the Commonwealth of Virginia The inability to
marry denies gay and lesbian individuals andtheir children the personal and public affirmation

that accompanies marriage. The inability to marry also deprives same-sex couples of numerous

benefits associated with marriage including, without limitation, 1) marital, disability and survivor's benefits under the federal social security system; 2) naval disability benefits; 3)
favorable tax treatment under Virginia and federal law for income andestate taxes; 4) federal
Medicaid benefits; 5) immigration benefits; and 6) federal Veterans Administration benefits.

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Upon information and belief, all of these benefits are not available to Plaintiffs and other same-

sex couples in Virginia, but would be available to same-sex couples who marry under state laws

authorizing such benefits. The avowed purpose of this statutory and constitutional regime is "to
impose a disadvantage, a separate status, and so a stigma upon", those who seek to enter into

same-sex marriage in Virginia. See United States v. Windsor, 570 U.S.

at 21).

(2013)(slip opinion

16.

Plaintiffs are gay residents of Virginia who are involved in a long-term, serious

relationship with each other dating to 1989 who desire to marry each other under the laws of the
Commonwealth. They are now prohibited from doing so as a direct result of Defendants'

enforcement of Va. Code 20-45.2 and Article I, 15-Aof the Constitution of Virginia.

17.

On or about July 1,2013, Plaintiffs Bostic and London applied for a marriage

license from the Clerk for the Circuit Court for the cityof Norfolk, but were denied a marriage
license because they are a same-sex couple.
18. As a result of both state statute and state constitutional law, Plaintiffs are barred

from marrying the individual they wish to marry, cannot enter into the separate-but-unequal bond
of a civil union, andcannot marry in another state andhave Virginia recognize the benefits of
such unions.

19.

Plaintiffs' inability to have their relationship recognized by the Commonwealth of

Virginia with the dignity and respect accorded to married opposite-sex couples has caused them

significant hardship, including, but not limited to, the deprivation ofrights guaranteed by the
Fourteenth Amendment to the United States Constitution and severe humiliation, emotional

distress, pain, suffering, psychological harm, and stigma. The prohibition on marriage also

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makes it very difficult to conduct basic estate planning. Marriage is a supremely important social institution, and the "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Loving v. Virginia, 388 U.S. at 12.
The United States Supreme Court has called marriage "the most important relation in life."
Zablocki v. Redhail 434 U.S. 374, 384 (1978). Each day that Plaintiffs are denied the freedom to

marry, they suffer irreparable harm as a direct result of Defendants' violation of their
constitutional rights.

20.

If the Court does not enjoin Va. Code 20-45.2 and 20-45.3 and Article I, 15-

A of the Virginia Constitution, Defendants will continue to enforce this unconstitutional law

against Plaintiffs, thereby depriving them of their constitutional rights under

the Fourteenth Amendment to the United States Constitution. The declaratory and injunctive
relief sought by Plaintiffs, on the other hand, will require Virginia to revise official state law and
procedures governing marriage and will require the Commonwealth to issue Bostic and London a
marriage license. The relief sought also will require Defendants McDonnell, Cuccinelli and

Schaefer to recognize Plaintiffs' marriage as valid within the Commonwealth of Virginia.

CLAIMS FOR RELIEF

COUNT ONE: DUE PROCESS

21.

Plaintiffs incorporate here by reference paragraphs 1 through20, supra, as if

fully set forth herein.

22.

Va. Code 20-45.2 and 20-45.3 and Va. Const. Art I, 15-A violate

fundamental liberties that are protected by the Due Process Clause, both on their face and as applied to Plaintiffs.

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23.

These laws impinge on fundamental liberties by denying gay and lesbian

individuals the opportunity to marry civilly and enter into the same officially sanctioned family
relationship with their loved ones as opposite-sex individuals. For example, by denying those
individuals the same "marriage"designation afforded to opposite-sex couples, and even disallowing them access to the separate, but unequal, status of" civil unions", the

Commonwealth of Virginia is stigmatizing gays and lesbians, as well as their children and
families, and denying them the same dignity, respect, and stature afforded officially recognized opposite-sex family relationships. Virginia statutory and constitutional law, thus, deprive
Plaintiffs of their liberty without due process of law in violation of the Fourteenth Amendment to
the United States Constitution.
COUNT TWO: EQUAL PROTECTION

24.

Plaintiffs incorporate here by reference paragraphs 1 through 23, supra, as if

fully set forth herein.

25.

Va. Code 20-45.2 and 20-45.3 and Va. Const. Art I, 15-Aviolate the Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution, both on their

face and as applied to Plaintiffs.

26.

These laws restrict civil marriage to individuals of the opposite sex; gay and

lesbian individuals are therefore unable to marry the person of their choice. Thus, Virginia law

treats similarly-situated people differently by providing civil marriage to heterosexual couples, but not to gay and lesbian couples. The United States Constitution's guarantee of equality under
the Fourteenth Amendment "must at the very least mean that a bare (legislative) desire to harm a

politically unpopular group cannot justify disparate treatment of that group." Windsor, Slip Op. at
8

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21. These provisions in the Virginia Code and in the Bill of Rights of the Constitution of Virginia "write[ ] inequality into the entire" Code of Virginia. Id. at 22. These provisions

"demean" those who seek to enter into same-sex marriage and "instruct[ ]" all state officials, and
"indeed all persons with whom same-sex couples interact, including their own children, that

their" desire to marry is "less worthy than the marriages of others." Id. at 25. Virginia law even

disallows the separate-but-unequal status of civil unions and refuses to grant any legal effect to
marriages lawfully entered into in other states. Gays and lesbians are, therefore, unequal in the
eyes of state law, and their families are denied the same respect as officially sanctioned families

of opposite-sex individuals. By purposefully denying civil marriage to gay and lesbian

individuals, Virginia's ban on same-sex marriage discriminates on the basis of sexual orientation.
27. The disadvantage these laws impose upon gays and lesbians is the result of

disapproval or animus against a politically unpopular group. Accordingly, these laws violate the

Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by
casting gays and lesbians into disfavored legal status and categorizing them as "second-class
citizens."

28.

Same-sex couples and opposite sex couples are similarly situated for purposes of

Equal Protection analysis.

29.

Whether under a heightened scrutiny analysis, or under a more lenient rational

relation analysis, these provisions of Virginia law and the Virginia Constitution do not bearany
relation to a legitimate governmental purpose and, thus, violate the Equal Protection clause of the
Fourteenth Amendment to the United States Constitution.

30.

These laws also violate the Equal Protection Clause because they discriminate on

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the basis of sex. These laws distinguish between couples consisting of a man and a woman and

couples consisting of individuals of the same sex. Thus, the limitation on civil marriage depends upon an individual person's sex; a man who wishes to marry a man may not do so because he is a
man, and a woman may not marry a woman because she is a woman.
COUNT THREE: VIOLATION OF 42 U.S.C. 8 1983

31.

Plaintiffs re-allege and incorporate by reference paragraphs 1 through 30, supra,

as if fully set forth herein.

32.

Insofar as they are enforcing the terms of Va. Code 20-45.2 and 20-45.3, and

Article I, 15-A of the state constitution, Defendants, acting under the color of state law, are

depriving, and will continue to deprive, Plaintiffs of numerous rights secured by the Due Process
and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. 1983.
IRREPARABLE INJURY

33.

Plaintiffs incorporate here byreference paragraphs 1 through 32, supra, as

if fully set forth herein.

34.

Plaintiffs are now severely and irreparably injured by the challenged state laws

that violate the Due Process and Equal Protection clauses ofthe Fourteenth Amendment. By way
of example only, Plaintiffs' injury as a result of these discriminatory laws includes the
deprivation of rights guaranteed by the Fourteenth Amendment and the severe humiliation,

emotional distress, pain, suffering, psychological harm, and stigma caused by the inability to
marry the ones they love andhave society accord their unions andtheirfamilies the same respect

and dignity enjoyed by opposite-sex unions and families. Because Plaintiffs cannot marry under
10

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Virginia law, they cannot, for example, receive social security benefits, naval disability benefits,
Medicaid benefits, Veterans Administration benefits, immigration law benefits and favorable

treatment on income and estate taxes prescribed by state or federal law. They also cannot claim

benefits under various state and federal laws that apply only to married couples because they
cannot marry under Virginia law. Plaintiffs' injuries will be redressed only if this Court declares
these provisions unconstitutional and enjoins Defendants from enforcing them.

35.

An actual and judicially cognizable controversy exists between Plaintiffs and

Defendants regarding whether the laws violate the Due Process and Equal Protection clauses of
the Fourteenth Amendment. Defendants are presently enforcing these state laws to the detriment
of Plaintiffs.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment as follows:

1.

Plaintiffs respectfully request that this Court, pursuant to 28 U.S.C. 2201,

construe Virginia Code 20-45.2 and 20-45.3 and Article I, 15-A of the Constitution of

Virginia and enter a declaratoryjudgment stating that these provisions and any other Virginia law
that bars same-sex marriage violate the Due Process and Equal Protection clauses of the

Fourteenth Amendment to the United States Constitution and 42 U.S.C. 1983.

2.

Plaintiffs respectfullyrequest that this Court enter a preliminaryand a permanent

injunction enjoining enforcement or application of Virginia Code 20-45.2 and 20-45.3 and
Article I, 15-A of the Constitution of Virginia and any other Virginia law that bars same-sex
marriage.

11

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3.

Plaintiffs respectfully request costs of suit, including reasonable attorneys' fees,

under 42 U.S.C. 1988, and all further relief to which they may be justly entitled.

Dated:

J<^

W, 2*12

TIMOTHY B. BOSTIC & TONY C. LONDON

Thomas B. Shuttleworth VSB# 13330 Robert E. Ruloff VSB# 13471

Charles B. Lustig
VSB # 29442

Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C. 4525 South Blvd., Ste. 300

Virginia Beach, VA 23452 (757) 671-6000 (phone) (757) 671-6004 (fax)

Counsel for Plaintiffs

12

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Attachment 2 STATE DEFENDANTS' BRIEF IN SUPPORT OF MOTION TO SUSPEND SCHEDULING ORDER, TO STAY BRIEFING OR, IN THE ALTERNATIVE, TO ESTABLISH A BRIEFING SCHEDULE

Case 5:13-cv-00077-MFU-RSB Document 54-2 Filed 10/03/13 Page 2 of 3 Pageid#: 431

From: To: Subject: Date:

cmecf@vaed.uscourts.gov Courtmail@vaed.uscourts.gov Activity in Case 2:13-cv-00395-AWA-LRLVAED Bostic et al v. McDonnell et al Order on Motion for Miscellaneous Relief Friday, August 30, 2013 10:41:03 AM

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court Eastern District of Virginia Notice of Electronic Filing The following transaction was entered on 8/30/2013 at 10:42 AM EDT and filed on 8/30/2013 Case Name: Bostic et al v. McDonnell et al Case Number: 2:13-cv-00395-AWA-LRL Filer: Document Number: 17(No document attached) Docket Text: Plaintiffs' unopposed Motion for Entry of a Consent Order to Suspend Briefing on Motion to Dismiss and Motion to Intervene, and To Set Deadlines for Filing Amended Complaint and For Filing Cross-Motions for Summary Judgment (ECF 14) is GRANTED AS FOLLOWS: (1) briefing on the Motion to Dismiss filed by Defendants McDonnell and Cuccinelli, and on the Motion to Intervene filed by the Commonwealth of Virginia, is suspended indefinitely pending filing of an Amended Complaint; (2) Plaintiffs shall file an Amended Complaint by September 3, 2013 and Defendants shall have twenty-one days to respond or otherwise answer; and (3) the parties agree that they shall file cross-motions for summary judgment and supporting materials by September 30, 2013. Memoranda in support of these motions shall not exceed thirty-five pages. Responses to the cross-motions shall be filed by October 24, 2013, and shall not exceed twenty pages. Reply briefs shall be filed by October 31, 2013, and shall not exceed eleven pages. Oral argument will be set by the Court if deemed necessary. Signed by District Judge Arenda L. Wright Allen on 08/30/2013. (Allen, Arenda)

Case 5:13-cv-00077-MFU-RSB Document 54-2 Filed 10/03/13 Page 3 of 3 Pageid#: 432 2:13-cv-00395-AWA-LRL Notice has been electronically mailed to: Charles Barnet Lustig clustig@srgslaw.com, dreidy@srgslaw.com, mjones@srgslaw.com David Brandt Oakley doakley@poolemahoney.com, cjones@poolemahoney.com Earle Duncan Getchell , Jr dgetchell@oag.state.va.us, KTaylor@oag.state.va.us, mbrady@oag.state.va.us, wrussell@oag.state.va.us Thomas Brady Shuttleworth , II tshuttleworth@srgslaw.com, clustig@srgslaw.com, cvaughan@srgslaw.com, pburford@srgslaw.com, pmerullo@srgslaw.com 2:13-cv-00395-AWA-LRL Notice has been delivered by other means to: Robert Eugene Ruloff Shuttleworth Ruloff Swain Haddad & Morecock PC 4525 South Blvd Suite 300 Virginia Beach, VA 23452-1137