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IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

NORTHERN DIVISION

CAMPAIGN FOR SOUTHERNEQUALITY, et al. PLAINTIFFS

vs. CIVIL ACTION NO. 3:14cv818-CWR-LRA

PHIL BRYANT, in his official capacity

as Governor of the State of Mississippi, et al. DEFENDANTS

MEMORANDUM IN SUPPORT OF CONTINGENT

MOTION FOR STAY PENDING APPEAL

COME NOW Defendants Phil Bryant, in his official capacity as Governor of

the State of Mississippi, and Jim Hood, in his official capacity as Mississippi

Attorney General (hereinafter the State), by and through counsel, and submit this

memorandum brief in support of their Contingent Motion for Stay Pending Appeal,

and in support thereof, would show unto the Court as follows, to-wit:

INTRODUCTION

Plaintiffs, Campaign for Southern Equality, Rebecca Bickett, Andrea

Sanders, Jocelyn Pritchett, and Carla Webb (collectively the Campaign), seek a

preliminary injunction requiring Mississippi circuit clerks to issue marriage

licenses to same-sex couples and to require Mississippi to recognize the validity of

same-sex marriages from other states. The State submits its Contingent Motion for

Stay Pending Appeal, and this memorandum in support, out of an abundance of

caution, in the event the Court decides that the Campaign has met its heavy burden

of justifying extraordinary relief. The State expressly requests that the Court rule

Case 3:14-cv-00818-CWR-LRA Document 24 Filed 11/10/14 Page 1 of 23

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on the motion for stay at the same time the Court rules on the Campaigns motion

for preliminary injunction.

Serious negative effects would result from entry of a preliminary injunction

unless the effect of such an order is stayed pending appeal. Although the Court

should uphold the validity of Mississippis traditional marriage laws, out of an

abundance of caution, the State respectfully requests that if the Court determines

that a preliminary injunction is necessary, the Court should also

contemporaneously therewith enter an order staying the effect of its ruling pending

resolution of any appeal.

In the alternative, the State respectfully requests that at a minimum the

Court should enter a temporary stay of fourteen days to permit the State to seek

relief from the Fifth Circuit. A race to the courthouse -- with same-sex couples

racing to the Hinds County Courthouse to obtain a marriage license while the State

is racing to the Fifth Circuit to obtain an emergency stay -- would benefit no one.

See, e.g., Brenner v. Scott, 999 F. Supp. 2d 1278, 1291-92 (N.D. Fla. Aug. 21, 2014).

Entry of a preliminary injunction would cause confusion and create practical

problems for the State as well as the circuit clerks and other public officials. Those

problems would go far beyond the immediate problems that would be created for the

eighty-two separate and independent circuit clerks in Mississippi responsible for

issuing marriage licenses in their respective counties. Changing the status of same-

sex marriages would affect numerous public officials and state agencies responsible

for oversight of complex regulatory and administrative programs such as taxation.

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Furthermore, granting a stay would hold the status quo and minimize any

additional harm which might occur to any of the parties. Unless and until same-sex

unions are blessed by either the Fifth Circuit and/or the Supreme Court, the public

interest in the stability of marriage laws will not be served, and a preliminary

injunction would place same-sex couples in an even more tenuous and uncertain

position than they are now. Any same-sex marriage licenses issued, and any same-

sex marriages performed while a preliminary injunction is on appeal, would be

subject to nullification should the Fifth Circuit uphold Mississippis traditional

marriage laws. The distinct possibility that the Fifth Circuit may join the Sixth

Circuit in upholding state bans on same-sex marriage would leave same-sex

couples, married under the potentially transient auspices of a preliminary

injunction, in legal limbo.

If this Court issues a preliminary injunction but declines to issue a stay,

Mississippi would be forced to permit same-sex marriages at a time when no other

state in the Fifth Circuit is required to do so. Same-sex marriages in Texas and

Louisiana are not currently permitted, pending the outcome of the appeals in

Cleopatra DeLeon, et al. vs. Rick Perry, et al., No. 14-50196 (5th Cir. filed Mar. 1,

2014) and Jonathan Robicheaux, et al. vs. James Caldwell, et al., No. 14-31037 (5th

Cir. filed Sept. 5, 2014). No valid purpose would be served by placing Mississippi on

different legal footing than Texas and Louisiana, especially with the Fifth Circuit

prepared to resolve the same-sex marriage issue in the very near future.

The State has made a strong showing of success on the merits, and the

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balance of equities heavily favors a stay. Therefore, the Court should grant the

Contingent Motion for Stay Pending Appeal to hold the status quo and protect the

rights not only of the litigants, but of the general public and citizens of Mississippi.

ARGUMENT

STANDARD OF REVIEW

The Federal Rules of Appellate Procedure require that [a] party must

ordinarily move first in the district court for the following relief . . . (C) an order

suspending, modifying, restoring, or granting an injunction while an appeal is

pending. Fed. R. App. P. 8(1)(C). Civil Rule 62(C) explains a district courts power

to stay the effect of an injunction: [w]hile an appeal is pending from an

interlocutory order or final judgment that grants, dissolves, or denies an injunction,

the court may suspend, modify, restore, or grant an injunction on terms for bond or

other terms that secure the opposing partys rights. Fed. R. Civ. P. 62(C).

The same standard applies to a motion for stay, regardless whether the

motion is made to a district court pursuant to Fed. R. Civ. P. 62, or to a court of

appeals pursuant to Fed. R. App. P. 8. Charles Alan Wright and Arthur R. Miller,

et al., Federal Practice & Procedure 2904 (3d ed. 2014). In considering a motion

for stay, a court should examine four factors:

(1) whether the stay applicant has made a strong showing that he is

likely to succeed on the merits; (2) whether the applicant will beirreparably injured absent a stay; (3) whether issuance of the stay will

substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.

Id.(citing Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 2119, 95 L. Ed.

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2d 724 (1987)).

The Fifth Circuit and other circuits have tempered the first element, such

that a party seeking a stay need not always now a probability of success on the

merits; instead, the movant need only present a substantial case on the merits

when a serious legal question is involved and show that the balance of the equities

weighs heavily in favor of granting the stay. Ruiz v. Estelle, 650 F.2d 555, 565 (5th

Cir. 1981). The Fifth Circuit recently emphasized that the immediacy of the harm

resulting from the denial of a stay increases the value of maintaining the status

quo. See Veasey v. Perry, 2014 WL 5313516, at *1-2 (5th Cir. Oct. 14, 2014)

(granting Texas request for stay pending appeal in challenge to voter identification

law filed on the eve of the election).

I. THE STATE HAS MADE A STRONG

SHOWING ON THE MERITS

A. Baker v. NelsonBars Plaintiffs Fourteenth

Amendment Claims

InBaker v. Nelson, the U.S. Supreme Court held that a Fourteenth

Amendment challenge to a same-sex marriage ban should be dismissed for want of

a substantial federal question. InBaker, the Minnesota Supreme Court specifically

held that a state statute defining marriage as a union between persons of the

opposite sex did not violate the First, Eighth, Ninth, or Fourteenth Amendments of

the United States Constitution. 191 N.W.2d 185 (Minn. 1971), appeal dismissed,

490 U.S. 810 (1972). The United States Supreme Court unanimously agreed,

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dismissing theBakerappeal for want of a substantial federal question. Baker,

409 U.S. at 810. Baker remains a precedential ruling on the merits that binds all

state and lower federal courts. Last week, the Sixth Circuit declined to engage in

rank speculation concerning the Supreme Courts possible intentions regarding

same-sex marriage, holding thatBakerwas binding precedent requiring that court

to uphold traditional marriage laws in Tennessee, Michigan, Ohio, and Kentucky.

DeBoer v. Snyder, --- F.3d ---, 2014 WL 5748990, at *5-7 (6th Cir. Nov. 6, 2014)

(holdingBakerremains binding Supreme Court precedent). Accord Conde-Vidal v.

Garcia-Padilla, --- F. Supp. 3d ---, 2014 WL 5361987, at *10 (D. P.R. Oct. 21, 2014)

(holding Baker, which necessarily decided that a state law defining marriage as a

union between a man and a woman does not violate the Fourteenth Amendment,

remains good law).

Furthermore, in 2006, two judges of this Court relied onBakerto dismiss

Fourteenth Amendment claims targeting Mississippi Constitution Section 263A and

Mississippi Code Section 93-1-1(2). SeeOrder inWalker v. Mississippi, Civil Action

No. 3:04cv140-LS (Apr. 11, 2006) (copy affixed to Response to Motion for

Preliminary Injunction as Ex. 1), report and recommendation adopted, Order in

Walker v. Mississippi, Civil Action No. 3:04cv140-LS (July 25, 2006) (copy affixed to

Response to Motion for Preliminary Injunction as Ex. 2).

Even if lower courts could ignore established precedent by speculating that

the Supreme Court has overruled a prior case by implication, in this instance no

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other line of decisions diminishes the value ofBaker. Subsequent Supreme Court

decisions addressing issues tangential to same-sex marriage, such as Romer v.

Evans, 517 U.S. 620 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003), in no way

affect the precedential value ofBaker. The Court has disclaimed such an intention.

See, e.g., Lawrence, 539 U.S. at 578 (cautioning that the case does not involve . . .

formal recognition of same-sex marriages).

The Supreme Court had a chance to addressBakerwhen United States v.

Windsor, 133 S. Ct. 2675 (2013) invalidated the Defense of Marriage Act of 1996.

But Windsordid not mentionBaker, much less criticize it, which the majority

surely could and would have done if overrulingBakerhad been on the Courts

agenda. Instead, the Windsorcourt cabined its ruling to those lawful marriages

alreadyauthorized by state law. Windsor, 133 S. Ct. at 2696.

Moreover, theBakerand Windsordecisions are not in conflict. In concluding

that DOMA injure[d] those whom the State, by its marriage laws, sought to protect

in personhood and dignity, the Court did not create a free-standing substantive

right for same sex couples to marry or have their marriages recognized. See

Windsor, 133 S. Ct. at 2696. Instead, WindsorreinforcedBakerby emphasizing the

need to safeguard the States historic and essential authority to define the marital

relation free from federal intrusion. Windsor, 133 S. Ct. at 2692.

Bakerhas not been displaced by Windsorand it cannot be overruled by lower

courts to reach a contrary desired result. Bakerleaves the definition of marriage to

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the democratic and legislative processes of each state.

B. Plaintiffs Fourteenth Amendment Claims Fail

On the Merits

1. Heightened Scrutiny Does Not Apply

Heightened scrutiny does not apply to traditional marriage laws which

preclude marriage of same-sex couples: [I]f a law neither burdens a fundamental

right nor targets a suspect class, courts apply rational basis review and will

uphold the legislative classification so long as it bears a rational relation to some

legitimate end. Romer, 517 U.S. at 631 (citing Heller v. Doe, 509 U.S. 312, 319-20

(1993)); see also Greater Houston Small Taxicab Co. Owners Assn v. City of

Houston, Texas, 660 F.3d 235, 239 (5 Cir. 2011). Mississippis traditional marriageth

laws do not discriminate against a suspect class nor implicate a fundamental right,

so those laws must be considered under the rational basis standard.

No Suspect Classification. Sexual orientation is not a suspect

classification. The Supreme Court has always subjected state law classifications

allegedly discriminating on account of sexual orientation to rational basis review.

For example, in Romer, the Court rejected heightened scrutiny in evaluating a

state law banning state or local legislation that created rights for persons to claim

minority status, quota preferences, protected status, or discrimination based on

sexual orientation. 571 U.S. at 624. Although the Court struck down the state law,

it did so by applying rational basis review. Id.at 631-33. The Court followed the

same approach in Windsor, and did not apply heightened scrutiny to DOMAs

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Section 3. Windsor, 133 S. Ct. at 2693 (relying on RomerandDepartment of

Agriculture v. Moreno, 413 U.S. 528 (1973)). Accord Johnson v. Johnson, 385 F.3d

503, 532 (5 Cir. 2004) (Neither the Supreme Court nor this court has recognizedth

sexual orientation as a suspect classification . . . .).

No Fundamental Right. Recognizing a fundamental right to same-sex

marriage to justify heightened scrutiny would be just as inappropriate as creating a

new suspect class. The Campaigns fundamental right analysis ignores the

stringent requirements imposed by the Supreme Court in Washington v.

Glucksberg, 521 U.S. 702, 720-21 (1997), for the creation and establishment of new

fundamental rights. The test essentially boils down to whether, when carefully

described, the purported fundamental right is deeply rooted in this Nations history

and tradition. Id.at 720-21; Malagon de Fuentes v. Gonzales, 462 F.3d 498, 505

(5 Cir. 2006).th

In the past few years, some states have exercised their authority to define

marriage by creating a right to same-sex marriage -- through the democratic

process. Id. But no state has the right to dictate the manner in which another

state defines marriage. Prior to the past few years, same-sex marriage has simply

had no place in this Nations history and tradition whatsoever.

2. Mississippis Traditional Marriage Laws Satisfy

Rational Basis Review

Rational basis review is not a means for courts to second guess legislative

enactments by litigating the facts undergirding their passage. Heller v. Doe, 509

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U.S. 312, 320 (1993) (A state has no obligation to produce evidence to sustain the

rationality of a statutory classification.). Courts conducting rational basis review

must presume the laws in question are valid and sustain them so long as they are

rationally related to a legitimate state interest. City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 440 (1985). For that reason, the rational basis test only seeks to

determine whether any conceivable rationale exists for the enactments. FCC v.

Beach Communications, Inc., 508 U.S. 307, 313 (1993) (collecting authorities).

Even laws solely based on rational speculation unsupported by evidence or

empirical data satisfy rational basis review. Beach Communications, 508 U.S. at

315. Further, the fact that reasonable minds can disagree on legislation suffices to

show the laws have a rational basis, for there is no least restrictive means

component to rational basis review. Heller, 509 U.S. at 321. Mississippis

traditional marriage laws are likely to be upheld on appeal, as those laws are

rationally related to legitimate state interests.

The State has shown a strong likelihood of success on the merits. Baker v.

Davis remains binding precedent that state laws prohibiting same-sex marriage do

not violate the Fourteenth Amendment, and the precedential value of that case has

not been undercut by Windsor. Furthermore, the Campaigns Fourteenth

Amendment claims fail on the merits. Heightened scrutiny does not apply because

sexual orientation is not a suspect class, and same-sex marriage is not a

fundamental right. The approach taken by the courts striking down traditional

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Which Would Be Prevented by a Stay

The State would also be harmed by the confusion and practical difficulties

which would be prevented by a stay. Compliance with a preliminary injunction

would require that complex administrative and regulatory programs be

significantly revised to accommodate recognition of same-sex marriages, and such

changes cannot be accomplished simply by flipping a switch on or off. Additionally,

the problems which a preliminary injunction would create for the circuit clerks

represent only the tip of iceberg.

The circuit clerks of this State are charged by statute to issue marriage

licenses. See Miss. Code Ann. 41-57-48, 93-1-5, 93-1-11. Section 263A of the

Mississippi Constitution declares the public policy of the State that the only valid

marriages are between a man and a woman. See Miss. Const. art. 14, 263A.

Public officials, including the circuit clerks, have taken an oath to obey state law.

See Miss. Const. art. 14, 268. Because same-sex marriages are barred both

statutory and state constitutional law, no contingency plans are in place, and the

circuit clerks would not be in a position to immediately begin issuing same-sex

marriage licenses. It is inevitable that confusion, delays, and disruption of other

services would occur if the circuit clerks are commanded to issue same-sex marriage

licenses without time to prepare.

Similarly, public officials responsible for enforcing state laws regarding birth

certificates and adoption; management and oversight of public health and

retirement benefits; designation of persons permitted to make medical decisions on

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behalf of another; probate, transfer of assets, and statutory causes of action such as

wrongful death; and taxation have never had to make contingency plans to

accommodate the recognition of same sex marriages, and would be put in the

untenable position of being aware of a preliminary injunction, but not having the

practical ability to comply. Implementation of changes to accommodate same-sex

marriages would affect complex administrative and regulatory schemes which

cannot be adapted or modified at a moment's notice.

Moreover, modifications to the affected administrative and regulatory

schemes would require a substantial investment of time, money, and effort which

would necessarily detract from the ability of state agencies and public officials on

both the state and local levels to continue to provide services to the general public

in a prompt and efficient manner.

This Court may, with the electronic equivalent of the stroke of a pen, change

the legality of same-sex marriages, but that does not mean that public officials in

numerous state agencies, eighty-two counties, and numerous local jurisdictions can

be adequately prepared to comply at the drop of a hat.

III. THE STAY WOULD NOT SUBSTANTIALLY INJURE PLAINTIFFS,

BUT WOULD INSTEAD PROTECT

THEM FROM POTENTIAL FUTURE HARM

In response to the instant Motion, the Campaign will undoubtedly repeat the

argument that [e]very day that marriage is denied to gay couples in Mississippi

deprives Plaintiffs of their constitutional rights and causes them to suffer

irreparable harm. Plaintiffs Memorandum of Law in Support of Motion for

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Preliminary Injunction [Doc. 5], at 5. However, the Campaign is asking this Court

to permanently alter the existing status quo in the State of Mississippi by an abrupt

redefinition of marriage that would require recognizing a new and heretofore non-

existent right to same-sex marriage.

The courts should exercise caution in implementing such dramatic changes to

the political and social structureof a state. See, e.g., Bourke v. Beshear, 996 F.

Supp. 2d 542, 557-58 (W.D. Ky. Mar. 19, 2014). Cf. Evans v. Utah, 2014 WL

2048343, at *1-4 (D. Utah May 19, 2014) (describing confusion, uncertainty, and

chaos which resulted from district courts failure to stay effect of injunction

permitting same-sex marriage).

Moreover, in weighing the extent and severity of any harm to the Campaign

and same-sex couples which might result from a stay, the Court should also

consider whether a stay would protect same-sex couples, including the individual

Plaintiffs, from future harm that might result from a reversal. In Guzzo v. Mead,

2014 WL 5317797, at *8 (D. Wyo. Oct. 17, 2014), a district court described its

decision to grant a temporary stay pending appeal, largely because of the threat of

harm to same-sex couples like the individual Plaintiffs here:

Exercising its discretion, the Court will order a temporary stay to allow

Defendants time to seek relief from the Tenth Circuit. The Court is

sympathetic to the mounting irreparable harms faced by Plaintiffs. However,

the many changes that result from this ruling are very serious and deserveas much finality as the Court can guarantee. Given the important and

fundamental issues apparent in this case, it is in the litigants and publics

best interests to ensure the correct decision is rendered. It would only cause

a great deal of harm and heartache if this Court allowed same-sex marriage

to proceed immediately, only to have a reviewing court later nullify this

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decision (and with it, the same-sex marriages occurring in the interim). The

Court understands that every day where same-sex couples are denied their

constitutional rights is another day filled with irreparable harm. But it is at

least equally important that all same-sex marriages carry the same

prominence and finality that attend opposite-sex marriage, including the

various obligations and liabilities incumbent with the marital relationship.

Guzzo, 2014 WL5317797, at *9 (internal citations omitted). See also Bourke, 996 F.

Supp. 2d at 557-58 (The Court has concerns about implementing an order which

has dramatic effects, and then having that order reversed, which is one possibility.

Under such circumstances, rights once granted could be cast in doubt . . . . It is best

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

implementation or confusing changes. That does not serve anyone well).

The Campaign seeks an injunction to require the State of Mississippi to

recognize the validity of out-of-state same-sex marriages and require the circuit

clerks to issue same-sex marriage licenses. But same-sex couples have never had

the right to be married in Mississippi. The States traditional marriage laws are

not depriving same-sex couples of any cognizable right that currently exists.

Therefore, the only harm that would result to the Campaign and same-sex couples

like the individual Plaintiffs from a stay would be a relatively short continued delay

in the exercise of a newly-minted right to same-sex marriage.

The immediacy and urgency of any harm as stay would cause to the

Campaign is questionable in light of the voluntary delay in seeking relief self-

imposed by some of the individual Plaintiffs themselves. Plaintiffs Betsy Bickett

and Andrea Sanders were denied a marriage license in March, 2014, yet did not file

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virtue thereof.

The debacle in Utah which occurred after the district court refused to enter a

stay reflects the substantial problems, confusion, uncertainty, and heartache that

would result from on-again, off-again same-sex marital status. SeeEvans v. Utah,

2014 WL 2048343, at *1-4 (D. Utah May 19, 2014) (describing confusion,

uncertainty, and chaos which resulted from district courts failure to stay effect of

injunction permitting same-sex marriage).

IV. A STAY IS IMPERATIVE TO PROTECT

THE PUBLIC INTEREST

A. There is a Strong Public Interest in the Stability

of Marriage Laws

The strong public interest in the stability of marriage laws warrants a stay:

There is a substantial public interest in implementing this decision

just once in not having, as some states have had, a decision that is

on-again, off-again. This is so for marriages already entered

elsewhere, and it is more clearly so for new marriages. There is a

substantial public interest in stable marriage laws. Indeed, there is asubstantial public interest in allowing those who would enter same-sex

marriages the same opportunity for due deliberation that opposite sex

couples routinely are afforded. Encouraging a rush to the marriage

officiant, in an effort to get in before an appellate court enters a stay,

serves the interests of nobody.

Brenner v. Scott, 999 F. Supp. 2d 1278, 1291-92 (N.D. Fla. Aug. 21, 2014) (staying

effect of preliminary injunction for long enough to provide reasonable assurance

that the opportunity for same-sex marriages in Florida, once opened, will not again

close).

The public interest would be best served by ensuring that same-sex

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marriages carry the same weight and finality that attend opposite-sex marriage,

which would also protect same-sex couples from harm, especially in light of the fact

that the Fifth Circuit is poised to act on this issue.

B. The Fifth Circuit Is Already Poised to Resolve the

Same-Sex Marriage Issues Raised by the Campaign

The current legal landscape makes a stay imperative to protect the public

interest. Should the Court decide that the Campaign has proven the necessity of

extraordinary relief, the public interest would best be served by staying the effect of

any injunction entered by the Court.

Same-sex marriage is a hot-button issue across the country. As Mississippi is

the third and last state in the Fifth Circuit to be drawn into federal litigation over

same-sex marriage, the issues raised by the Campaign are far from unique, even

within this circuit. The Campaign has not advanced any new or novel legal

theories, nor does this case present any unusual or exigent factual circumstances.

The Campaign has merely repackaged arguments previously made in challenges to

same-sex marriage laws in other states, both in the circuit and across the nation.

The same issues raised by the Campaign in this action have already been

raised in a pair of Texas and Louisiana lawsuits which the United States Court of

Appeals for the Fifth Circuit is poised to resolve: Cleopatra DeLeon, et al. vs. Rick

Perry, et al., No. 14-50196 (5th Cir. filed Mar. 1, 2014) and Jonathan Robicheaux, et

al. vs. James Caldwell, et al., No. 14-31037 (5th Cir. filed Sept. 5, 2014). At the

request of the plaintiffs in Robicheaux, the Fifth Circuit has agreed to expedite

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those appeals and assigned both to the same merits panel. See Robicheaux v.

Caldwell, No. 14-31037, Order Granting Motion to Expedite Appeal (5th Cir. Sept.

25, 2014). Those cases are fully briefed and tentatively set for oral argument the

week of January 5, 2015. See Robicheaux v. Caldwell, No. 14-31037, Docket Entry

dated Oct. 27, 2014 (5th Cir.). As the law of the circuit regarding legality of

traditional marriage laws will be resolved by the Fifth Circuit in the very near

future, the Campaign has not presented any issues which require such immediate

and extraordinary relief that a stay should be denied.

Although the district courts in the Louisiana and Texas cases reached

opposite conclusions concerning the constitutionality of the same sex marriage

prohibitions at issue in those states, to date the courts have not permitted any

same-sex marriages to occur within the Fifth Circuit. InDeLeon v. Perry, 975 F.

Supp. 2d 632 (W.D. Tex. Feb. 26, 2014), the Western District of Texas held that

Texas state prohibition on same sex marriage was unconstitutional, but stayed the

effect of its order pending resolution of the appeal to prevent any legal and

practical complications. DeLeon, 975 F. Supp. 2d at 665. As a result, at this time

the Texas law barring same-sex marriage remains in effect.

In Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La Sept. 3, 2014), the

Eastern District of Louisiana upheld Louisianas ban on same sex marriage, so

Louisianas law barring same-sex marriage remains in effect. Thus, no same-sex

marriages will be performed or recognized in any state within the circuit, unless the

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Fifth Circuit resolves theDeLeon and Robicheauxappeals in favor of same-sex

marriage proponents. To maintain consistency and order throughout the Fifth

Circuit, this Court should, therefore, stay the effect of an injunction, even should it

decide extraordinary relief is justified. Mississippi should not be singled out as the

only state in the Fifth Circuit required to permit and recognize same-sex marriages,

when the courts have maintained the status quo in Texas and Louisiana.

C. The Circuit Split Created by the Sixth Circuit Can

Only Be Resolved by the Supreme Court

The legal landscape concerning same-sex marriage has undergone rapid

change in recent months. After the Supreme Court denied certiorari in cases

involving decisions from the Fourth, Seventh, Ninth, and Tenth Circuits striking

down state bans on same-sex marriage on October 6, 2014, same-sex marriage

supporters hailed the denial of certiorari as the death knell for state law

prohibitions on same-sex marriage. However, the pendulum swung dramatically

the other direction last Thursday, November 6, 2014, when the Sixth Circuit

handed down its decision inDeBoer v. Snyder, 2014 WL 5748990 (6th Cir. Nov. 6,

2014) upholding traditional marriage laws in Tennessee, Michigan, Kentucky, and1

Ohio and setting the stage for action on this issue by the Supreme Court, as well

as the Fifth and Eleventh Circuits, which have not yet spoken on this issue. .

Accord Conde-Vidal v. Garcia-Padilla, --- F. Supp. 3d ---, 2014 WL 5361987, at * (D.1

P.R. Oct. 21, 2014) (Fourteenth Amendment challenge to ban on same-sex marriage must be

dismissed for want of a substantial federal question) (citingBaker v. Nelson, 409 U.S. 810, 93

S. Ct. 37 (1972)).

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Telephone: (601) 359-3680

Facsimile: (601) 359-2003

[email protected]

[email protected]

Counsel for Defendants Phil Bryant, in hisofficial capacity as Governor of the State of

Mississippi, and Jim Hood, in his official

capacity as Mississippi Attorney General

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has

been filed electronically with the Clerk of Court using the Courts ECF system and

thereby served on all counsel of record who have entered their appearance in this

action.

THIS the 10th day of November, 2014.

s/Paul Barnes

Paul E. Barnes

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Documents

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