Appellate Case: 14-3246

Document: 01019336947

Date Filed: 11/07/2014

Page: 1

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
Kail Marie, et al.,
Plaintiffs/Appellees,
Case No. 14-3246
v.
Robert Moser, M.D., et al.
Defendants/Appellants.
APPELLEES RESPONSE IN OPPOSITION TO APPELLANTS
EMERGENCY MOTION FOR STAY OF PRELIMINARY INJUNCTION
INTRODUCTION
Defendants have not come close to satisfying the requirements for a stay
pending appeal. A stay pending appeal is an intrusion into the ordinary processes
of administration and judicial review and [t]he parties and the public, while
entitled to both careful review and a meaningful decision, are also generally
entitled to the prompt execution of orders. Nken v. Holder, 556 U.S. 418, 427
(2009) (internal quotation marks and citations omitted). Accordingly, a stay
pending appeal is an extraordinary remedy that should not be granted in the
ordinary case, much less awarded as of right. Id. at 437 (Kennedy, J.,
concurring).
The four factors considered by this Court when determining whether to grant
a stay are:

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(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether the issuance of the stay
will substantially injure the other parties interested in the proceeding;
and (4) where the public interest lies.
KSTU, LLC v. Aereo, Inc., No. 14-4020, 2014 WL 1687749, at *1 (10th Cir. Mar.
7, 2014 (quoting Nken, 556 U.S. at 434). The first two factors are the most
critical. Id. (quoting Nken, 556 U.S. at 434). When considering success on the
merits and irreparable harm, courts cannot dispense with the required showing of
one simply because there is a strong likelihood of the other. Nken, 556 U.S. at
438 (Kennedy, J., concurring). The party requesting a stay bears the burden of
showing that the circumstances justify an exercise of that discretion. Id. at 43334.
I.

Defendants Cannot Show They Are Likely to Prevail on the Merits.

Kansass marriage bans are virtually identical to the marriage bans struck

down in Kitchen v. Herbert, 755 F.3d 1193, 1199 (10th Cir.), cert. denied, 83
USLW 3102 (2014) and Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert denied, 83
USLW 3102 (2014). In those cases, this Court held that [a] state may not deny the
issuance of a marriage license to two persons, or refuse to recognize their marriage,
based solely upon the sex of the persons in the marriage union. Kitchen, 755 F.3d
at 1199; accord Bishop, 760 F.3d at 1079-80. In light of that controlling

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precedent, Defendants have zero chance of prevailing on the merits before this
Court.
Defendants also have no likelihood of success on the merits on their
arguments that they are improper defendants or that the claims against them are
somehow barred by judicial immunity. Court clerks in Kansas and Oklahoma have
virtually identical responsibilities with respect to issuing marriage licenses, and this
Court already held in Bishop that district court clerks are proper defendants in an Ex
parte Young lawsuit seeking the issuance of marriage licenses. Bishop, 760 F.3d at
1079 n.3. And, as Judge Crabtree noted, numerous courts have already held that
state officials with the same job duties as Secretary Moses are proper defendants for
claims seeking marriage licenses.1
The Defendants remaining arguments are based on a hodgepodge of
irrelevant jurisprudential doctrines that they have thrown at the wall to see which
ones will stick. The district court thoroughly and patiently explained why each of
those arguments is meritless, and Defendants have offered no meaningful response
to the courts careful analysis.

Defendants incorrectly assert that Plaintiffs have conceded that the licenses
required by the preliminary injunction would not be recognized, absent further
judicial action. (Stay Mot. 6.) Not so. As Plaintiffs stated in their preliminary
injunction papers, Plaintiffs expect that any Kansas official in privity with
Defendants who are sued in their official capacities would obey a federal court
ruling that Kansass marriage bans are unconstitutional.
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II.

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Defendants Cannot Show They Will Suffer Irreparable Harm, That the
Balance of Hardships Tips in Their Favor, or That a Stay Would Be in
the Public Interest.
In cases involving the deprivation of constitutional rights, establishing or

failing to establish likelihood of success on the merits usually resolves the other
stay and preliminary injunction factors as well. See Hobby Lobby Stores, Inc v.
Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (en banc) (plurality). That is
because, the denial of constitutional rights always causes irreparable harm, the
government suffers no injury when it is enjoined from enforcing an
unconstitutional law, and it is always in the public interest to vindicate
constitutional rights. Id.; accord Awad v. Ziriax, 670 F.3d 1111, 1131-32 (10th
Cir. 2012).
Defendants assert they will be irreparably harmed by complying with the
federal injunction because it conflicts with Kansas law and Kansas state court
orders based on state law. But that is true whenever a state law is declared
unconstitutional. While the public has an interest in the will of the voters being
carried out . . . the public has a more profound and long-term interest in upholding
an individuals constitutional rights. Awad, 670 F.3d at 1132.
Finally, the Supreme Court itself has indicated that a stay pending appeal is
inappropriate in these circumstances in Parnell v. Hamby, 14A413, 2014 WL
5311581 (U.S. Oct. 17, 2014). Just as the district court followed binding Tenth
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Circuit precedent in this case in holding that Kansass marriage ban is

unconstitutional, the district court in Parnell followed binding Ninth Circuit
precedent in holding that Alaskas marriage ban is unconstitutional. See Hamby v.
Parnell, 2014 WL 5089399 (D. Alaska Oct 12, 2014). The Alaska defendants
requests for stays pending appeal were then denied by the district court, the Ninth
Circuit, and the Supreme Court. Parnell v. Hamby, 14A413, 2014 WL 5311581
(U.S. Oct. 17, 2014). The case against a stay is even stronger here because the
Ninth Circuit case in Parnell had not yet reached the Supreme Court in a petition
for certiorari; in contrast, the Tenth Circuit decisions that are fully binding in
Kansas have already been denied Supreme Court review.
With the exception of Kansas, every other State in the Tenth Circuit has
respected binding precedent from this Circuit and allowed same-sex couples to
finally exercise their fundamental right to marry. Kansas is entitled to exhaust all
its appeals but it is not entitled to continue inflicting irreparable harm on same-sex
couples in the meantime. It is time at long last from same-sex couples to have
the same freedom to marry in Kansas that they have in every other State in the
Tenth Circuit.
CONCLUSION
Defendants request for a stay pending appeal should be denied.

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Respectfully submitted,
/s/ Stephen Douglas Bonney
Stephen Douglas Bonney, KS Bar No.
12322
ACLU Foundation of Kansas
3601 Main Street
Kansas City, MO 64111
Tel. (816) 994-3311
Fax: (816) 756-0136
dbonney@aclukansas.org
Mark P. Johnson, KS Bar #22289
Dentons US, LLP
4520 Main Street
Suite 1100
Kansas City, MO 64111
816/460-2400
816/531-7545 (fax)
Mark.johnson@dentons.com
Joshua A. Block [admitted pro hac vice]
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2593
jblock@aclu.org
ATTORNEYS FOR APPELLEES

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CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)

This brief complies with the form and page limitation requirements of Fed.
R. App. P. 27(d) and 32(a)(5 & 6) because this brief has been prepared in a
proportionally-spaced typeface using Microsoft Word in 14-point Times New
Roman.
/s/ Stephen Douglas Bonney
Stephen Douglas Bonney
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that this 7th day of November, 2014, the foregoing
brief of Appellees was filed electronically through the Courts CM/ECF system.
Notice of this filing will be sent by e-mail to all parties by operation of the Courts
electronic filing system.
I FURTHER CERTIFY that all required privacy redactions have been made;
if required to file additional hard copies, that the ECF submission is an exact copy
of those documents; and that the ECF submission was scanned for viruses with the
most recent version of a commercial virus scanning program, Trend Micro
OfficeScan, which is updated continuously and that, according to that program, the
filing is free of viruses.
/s/ Stephen Douglas Bonney
Stephen Douglas Bonney