UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF NORTH CAROLINA

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MARCIE FISHER-BORNE, et al.,
Plaintiffs,
v.
JOHN W. SMITH, et al.,
Defendants.
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CIVIL ACTION NO. 1:12-cv-00589
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PLAINTIFFS OBJECTIONS TO MAGISTRATE JUDGES
RECOMMENDATION DATED JUNE 2, 2014

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .......................................................................................................... 1
BACKGROUND ............................................................................................................................... 3
A. North Carolinas Marriage Laws ............................................................................... 3
B. North Carolinas Adoption Laws ............................................................................... 4
C. The Plaintiffs ............................................................................................................ 5
STANDARD OF REVIEW ................................................................................................................ 7
ARGUMENT .................................................................................................................................... 8
I. The Recommendation Erred by Failing to Consider the Balancing Factors for a
Preliminary Injunction, Which Clearly Requires Granting Plaintiffs Injunctive
Relief. .................................................................................................................................. 8
A. Plaintiffs Are Likely to Succeed on the Merits. ......................................................... 8
B. Plaintiffs Are Likely to Suffer Irreparable Harm Absent an Injunction. .................... 13
C. The Balance of Equities and the Public Interest Favor Granting the
Preliminary Injunction. ............................................................................................ 15
II. The Magistrate Judge Erred in Recommending the Grant of a Stay by Failing to
Consider the Williford Balancing Test in Ruling on a Motion to a Stay. .............................. 18
A. Judicial Economy Is Not Served by the Granting of a Stay. ................................... 19
B. There Is No Hardship to the Moving Party. ............................................................ 19
C. Any Claimed Hardship to the Moving Party Is Clearly Outweighed by the
Potential Prejudice to the Non-Moving Party. ......................................................... 20
CONCLUSION ............................................................................................................................... 20


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TABLE OF AUTHORITIES
Page(s)
Cases
Baltimore Gas & Elec. Co. v. United States,
133 F. Supp. 2d 721 (D. Md. 2001) ........................................................................................... 19
Baskin v. Bogan,
2014 WL 1568884 (S.D. Ind. May 8, 2014) ............................................................................. 3, 9
BioSignia, Inc. v. Life Line Screening,
2013 WL 3805138 (M.D.N.C. July 22, 2013) .............................................................................. 8
Bishop v. United States,
962 F. Supp. 2d 1252 (N.D. Okla. 2014) ................................................................... 9, 13, 17, 20
Boddie v. Connecticut,
401 U.S. 371 (1971).................................................................................................................. 12
Boseman v. Jarrell,
704 S.E.2d 494 (N.C. 2010) ........................................................................................................ 4
Bostic v. Rainey,
970 F. Supp. 2d 456 (E.D. Va. 2014) .......................................................................... 3, 9, 17, 20
Bourke v. Beshear,
2014 WL 556729 (W.D. Ky. Feb. 12, 2014) .......................................................................... 9, 16
Bowen v. Gilliard,
483 U.S. 587 (1987).................................................................................................................. 11
Carson v. American Brands, Inc.,
450 U.S. 79 (1981) ................................................................................................................. 2, 7
Centro Tepeyac v. Montgomery Cnty.,
722 F.3d 184 (4th Cir. 2013) ..................................................................................................... 16
Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985).................................................................................................................. 11
Collins v. Brewer,
727 F. Supp. 2d 797 (D. Ariz. 2010) ......................................................................................... 10
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Colo. River Water Cons. Dist. v. U.S.,
424 U.S. 800, 817 (1976) ............................................................................................................ 2
De Leon v. Perry,
975 F.Supp.2d 632 (W.D. Tex. 2014) ............................................................................. 9, 15, 17
DeBoer v. Snyder,
973 F. Supp. 2d 757 (E.D. Mich. 2014) ................................................................................. 9, 13
Elrod v. Burns,
427 U.S. 347 (1976)............................................................................................................ 14, 15
Gieger v. Kitzhaber,
2014 WL 2054264 (D. OR May 19, 2014 ) .................................................................................. 9
Giovani Carandola, Ltd. v. Bason,
303 F.3d 507 (4th Cir. 2002) ..................................................................................................... 16
Harris v. Rainey,
2014 WL 1292803 (W.D. Va. Mar. 31, 2014) ............................................................................ 17
Heller v. Doe,
509 U.S. 312 (1993).................................................................................................................. 13
Henry v. Greenville Airport Commn,
284 F.2d 631 (4th Cir. 1960) ..................................................................................................... 14
Henry v. Himes,
2014 WL 1418395 (S.D. Ohio, Apr. 14, 2014) ............................................................................ 9
Hodge v. Jones,
31 F.3d 157 (4th Cir. 1994) ....................................................................................................... 12
Kitchen v. Herbert,
961 F. Supp. 2d 1181 (D. Utah 2013) ............................................................................. 9, 13, 18
Latta v. Otter,
2014 WL 1909999 (D. Idaho May 13, 2014) ............................................................................... 9
Lee v. Orr,
2014 WL 683680 (N.D. Ill. Feb. 21, 2014)................................................................................... 9
Legend Night Club v. Miller,
637 F.3d 291 (4th Cir. 2011) ..................................................................................................... 14
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Loving v. Virginia,
388 U.S. 1 (1967) ..................................................................................................................... 11
Mason v. Dwinnell,
660 S.E.2d 58 (N.C. Ct. App. 2008) ............................................................................................ 5
Mills v. Habluetzel,
456 U.S. 91 (1982) ................................................................................................................... 10
Moore v. City of E. Cleveland,
431 U.S. 494 (1977).................................................................................................................. 12
Natl Org. for Marriage v. Geiger,
No. 13A1173, Order in Pending Case (U.S. June 4, 2014) ....................................................... 16
Obergefell v. Kasich,
2013 WL 3814262 (S.D. Ohio, July 22, 2013) ....................................................................... 3, 16
Obergefell v. Wymyslo,
962 F. Supp. 2d 968 (S.D. Ohio 2013) ...................................................................... 9, 12, 13, 16
Parker v. Parker,
46 N.C. App. 254 (1980) ....................................................................................................... 4, 10
Pedersen v. Office of Pers. Mngmt.,
881 F. Supp. 2d 294 (D. Conn. 2012) ....................................................................................... 11
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) ................................................................................. 11, 13
Plyler v. Doe,
457 U.S. 202 (1982).................................................................................................................. 11
Reddick v. White,
456 F. Appx 191 (4th Cir. 2011) ................................................................................................. 7
Tanco v. Haslam,
2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) ............................................................. 3, 9, 15, 16
Troxel v. Granville,
530 U.S. 57 (2000) ................................................................................................................... 12
United States v. Raddatz,
447 U.S. 667 (1980).................................................................................................................... 8
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W. Va. Assn of Club Owners & Fraternal Servs., Inc. v. Musgrave,
553 F.3d 292 (4th Cir. 2009) ....................................................................................................... 8
Weber v. Aetna Cas. & Sur. Co.,
406 U.S. 164 (1972).................................................................................................................. 10
White v. Ally Fin. Inc.,
969 F. Supp. 2d 451 (S.D. W. Va. 2013) .................................................................................. 18
Whitewood v. Wolf,
2014 WL 2058105 (M.D. PA May 20, 2014 ) .............................................................................. 9
Williford v. Armstrong World Indus., Inc.,
715 F.2d 124 (4th Cir. 1983) ............................................................................................... 18, 19
Windsor v. U.S.,
699 F.3d 169 (2d Cir. 2012) .............................................................................................. passim
Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008) ................................................................................................................. 8, 15
Wolf v. Walker,
2014 WL 2558444 (W.D. Wis. June 6, 2014) ........................................................................ 9, 10
Wrenn v. Maryland,
819 F.2d 1139 (4th Cir. 1987) ..................................................................................................... 7
Zablocki v. Redhail,
434 U.S. 374 (1978).................................................................................................................. 12
Statutes
42 U.S.C. 416(h)(1)(A)(i) ................................................................................................................ 7
29 C.F.R. 825.122(b) ..................................................................................................................... 7
Fed. R. Civ. P. 72(b)(3) ..................................................................................................................... 8
N.C. Const. art. XIV, 6 ............................................................................................................. 3, 10
N.C. Gen. Stat. 48-2-301(c) ........................................................................................................... 4
N.C. Gen. Stat. 48-4-101 ............................................................................................................... 4
N.C. Gen. Stat. 51-1 ...................................................................................................................... 4
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N.C. Gen. Stat. 51-1.2 ................................................................................................................... 4
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PRELIMINARY STATEMENT
Shana Carignan and Megan Parker, whose six-year-old son J.C. has cerebral
palsy, filed this action on June 13, 2012 to enable Ms. Carignan to join Ms. Parker as J.C.s legal
parent and thereby improve the life of J.C. and his family. Five other families headed by lesbian or
gay parents similarly affected by North Carolinas categorical ban on second parent adoptions also
sued, and subsequently amended their complaint to challenge North Carolinas rejection of same-
sex marriages. Although this case has failed to proceed to an initial scheduling conference for
nearly two years, and despite the pendency of a motion for preliminary injunction, on June 2, 2014,
the Magistrate Judge issued a Recommendation that this Court enter a stay of all proceedings.
Plaintiffs object to that Recommendation.
For two years, the State of North Carolina has engaged in a successful strategy of
stall and delay. On April 8, 2013, while Defendants motion to dismiss was pending, the Court
informed the parties that a decision on the motion would be withheld pending the Supreme Courts
decision in United States v. Windsor, 133 S. Ct. 2675 (2013). On June 26, 2013, the Supreme
Court decided Windsor, and Plaintiffs immediately filed an amended complaint to add claims based
on Windsor. North Carolina again moved to dismiss, and that motion has been fully briefed but
undecided since November 15, 2013. On April 9, 2014, as J.C. reached a critical stage in his
development, the urgency of the need for Ms. Carignan to become his legal parent increased, and
she and Ms. Parker filed a motion for a preliminary injunction to invalidate North Carolinas
marriage and second parent adoption bans. Two days later, North Carolina moved to stay the
proceedings pending the Fourth Circuits decision in Bostic v. Rainey, Case No. 14-1167 (4th Cir.).
No hearing has been held on the preliminary injunction motion.
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On June 2, 2014, the Magistrate Judge issued a Recommendation for the granting
of a stay of all proceedings in this case, which would operate as a denial of Plaintiffs motion for a
preliminary injunction. See Carson v. American Brands, Inc., 450 U.S. 79, 83-84 (1981). The stay
of all proceedings proposed by the Magistrate Judge would prevent this case from moving forward
in any way, including the scheduling conference under Federal Rule of Civil Procedure 16(b).
Plaintiffs respectfully request that this Court decide these motions and grant
preliminary injunctive relief. Since Windsor was decided, fifteen other district courts have
invalidated bans on gay marriage in fourteen other states, all without guidance from their Circuit
Court of Appeals. Whenever the Fourth Circuit decides Bostica marriage case not involving the
adoption claims raised herethe parties can then address its impact on this case, whatever stage
it may be at. The fact that a higher court may issue a decision that affects the litigation of a case
before this Court does not change this Courts virtually unflagging obligation to exercise
jurisdiction in a case properly before it. Colo. River Water Cons. Dist. v. U.S., 424 U.S. 800, 817
(1976).
While this case is stalled, Ms. Carignan cannot establish a legal relationship with
her son even while she shares equally in the joys and responsibilities of parenting J.C. With each
passing day, North Carolinas ban on Ms. Carignan adopting J.C. prevents him from being added
to her insurance and receiving the care he would be entitled to under that insurance. In the
meantime, J.C. suffers innumerable and extreme physical, developmental and dignitary harms at a
critical stage in his growth and development. The harm done at this stage cannot be undone when
J.C. is older. The family as a whole also suffers daily from the uncertainty and indignity of not
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being recognized by their home state, not to mention the myriad of benefits and other financial
opportunities that they are ineligible for solely because they are headed by a same-sex couple.
The Recommendation states that there are clear and convincing circumstances
that outweigh any potential harm caused by a stay without giving any weight whatsoever to the
harm caused to J.C. by the continued delay in this case. (Dkt. No. 97, (Rec.) at 4.) Nor does the
Recommendation explain why halting all proceedings in this case, including the scheduling
conference, is appropriate, especially as there are no second parent adoption claims before the
Fourth Circuit in Bostic. Finally, because the stay would operate as denial of a preliminary
injunction, this Court should not issue it without considering whether plaintiffs are likely to succeed
on the merits or have established irreparable harm.
Granting limited relief to Ms. Carignan and Ms. Parker and their son during the
pendency of this action is further consistent with the approach taken by several district courts in
marriage litigation throughout the country that has granted limited relief such as the recognition of
out-of-state marriage sought by moving plaintiffs here, pending final resolution of the issue by the
circuit courts or the Supreme Court. Baskin v. Bogan, 2014 WL 1568884 (S.D. Ind. May 8, 2014);
Tanco v. Haslam, 2014 WL 997525 (M.D. Tenn., Mar. 14, 2014); Bostic v. Rainey, 970 F. Supp. 2d
456 (E.D. Va. 2014); Obergefell v. Kasich, 2013 WL 3814262, at *7 (S.D. Ohio, July 22, 2013).
BACKGROUND
A. North Carolinas Marriage Laws
On May 8, 2012, section 6 of Article XIV of the North Carolina Constitution was
amended to exclude same-sex couples from the freedom to marry in North Carolina and to bar
recognition of valid marriages from other jurisdictions (Amendment One). N.C. Const. art. XIV,
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6 (as amended); see also N.C. Gen. Stat. 51-1, 51-1.2. The effect of Amendment One and
North Carolinas marriage statutes are identical to the numerous state marriage bans enjoined or
struck down by courts following Windsor.
Many of the justifications offered in support of Amendment One were based on a
desire to denigrate same-sex relationships and demean same-sex couples, and evidenced animus
toward gay and lesbian people. (Dkt. No. 40 (Compl.) 68.) Amendment One and the North
Carolina marriage statute, N.C. Gen. Stat. 51-1, deny recognition and respect to Ms. Parkers
and Ms. Carignans lawful marriage in Massachusetts, along with the marriages of other same-sex
couples conferred by other jurisdictions. See N.C. Gen. Stat. 51-1.2 (Marriages, whether
created by common law, contracted, or performed outside of North Carolina, between individuals of
the same gender are not valid in North Carolina.). In contrast, North Carolina recognizes
marriages of heterosexual spouses from other jurisdictions. See, e.g., Parker v. Parker, 46 N.C.
App. 254, 258 (1980).
B. North Carolinas Adoption Laws
North Carolinas adoption statute, authoritatively construed by the North Carolina
Supreme Court in Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010), categorically prohibits joint or
second parent adoption for unmarried individuals without terminating the first parents rights. N.C.
Gen. Stat. 48-2-301(c). Adoptions by a parents legal spouse, however, are permitted. See N.C.
Gen. Stat. 48-4-101. Because North Carolina does not permit gay couples to marry, or recognize
such marriages performed elsewhere, Ms. Parker and Ms. Carignan are perpetually classified as
unmarried and are thus unable to take advantage of this stepparent provision.
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Despite North Carolinas prohibition on second parent adoption, and belying any
rational basis to deny legal recognition of a parent-child relationship that effectively has formed,
courts award joint custody to parents from same-sex couples after determining that it would be in
the best interests of the child. See Mason v. Dwinnell, 660 S.E.2d 58, 63 (N.C. Ct. App. 2008).
C. The Plaintiffs
Plaintiffs are six North Carolina families challenging the constitutionality of North
Carolinas marriage and adoption laws that discriminate against Plaintiffs on the basis of the adult
Plaintiffs sex and sexual orientation and prevent Plaintiffs from being treated as equal families.
(Compl. 1.) Under North Carolina law, only one parent in each family is recognized as a legal
parent; the other is made a legal stranger because North Carolina neither recognizes their
marriage, permits the parents to marry, nor permits the unmarried second parent to adopt the
children through second parent adoption (a process by which a heterosexual stepparent becomes
a legal parent). (Compl. 1-6.)
Three Plaintiffs moved for a preliminary injunction on April 9, 2014: Plaintiffs Parker
and Carignan have been a committed couple for six years and were legally married in
Massachusetts on September 13, 2012. (Dkt. No. 77 (Parker Aff.) 5-6.) They welcomed J.C.
into their family on March 24, 2011, after both Ms. Parker and Ms. Carignan underwent careful
scrutiny in order to become certified as foster parents. (Parker Aff. 7.) Although both Ms. Parker
and Ms. Carignan share equally in all of their parental responsibilities, North Carolina recognizes
only Ms. Parker as J.C.s parent. As a result, Ms. Carignan cannot obtain legal recognition of her
relationship with her son and all the benefits such recognition brings.
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J.C. is a six-year old boy who has cerebral palsy; he cannot walk and has limited
ability to control his limbs or communicate verbally. (Parker Aff. 8.) Because of his condition, he
requires constant and considerable care. (Dkt. No. 78 (Carignan Aff.) 11.) He is at a critical
point in his growth and development, and the care and attention he receives now will shape the
rest of his life. (Carignan Aff. 12.) Because he was adopted by Ms. Parker from foster care, J.C.
has health insurance through Medicaid. (Carignan Aff. 13.) Ms. Carignan has superior insurance
through Blue Cross Blue Shield through her employment. (Id.) However, because Ms. Carignan is
not J.C.s legal parent, she cannot add him to her policy and provide J.C. care he would obtain.
J.C. has many medical needs which would be covered if the Court granted the
requested relief. Ms. Parker and Ms. Carignan pay for many of these medical expenses without
insurance. These benefits include: an improved wheelchair, eyeglasses, additional mounts for
J.C.s communication system and the other medical equipment he requires. (Carignan Aff. 26-
27.) Secondary insurance through Ms. Carignans plan would allow J.C. to take advantage of other
treatments, as well other developmental opportunities that would vastly improve the quality of
J.C.s life, as set forth in Ms. Carignans and Ms. Parkers affidavits. (Carignan Aff. 13-28;
Parker Aff. 11-15.) If J.C. does not receive these sorts of therapies and opportunities now, he
will not be able to develop to the fullest extent with his condition. Obtaining these therapies when
he is older will not fix the damage that is being done each day. (Carignan Aff. 20.)
Moreover, because Ms. Carignan is not J.C.s legal parent, she is often faced with
denial of her rights and responsibilities as J.C.s mother. (Carignan Aff. 29-34.) For example,
J.C.s school recently informed Ms. Parker and Ms. Carignan that they are implementing a new
system under which Ms. Carignan can no longer be considered a parent to J.C. Ms. Carignan is
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now listed on J.C.s forms as an emergency contact and has none of the rights conferred to a
parent. (Carignan Aff. 33.) This could impact J.C. in an emergency situation if Ms. Parker is
unavailable. Further, if Ms. Parker were to die or become incapacitated, there is no way to ensure
that Ms. CarignanJ.C.s motherwould be legally permitted to continue in that role. Especially in
light of Ms. Parkers health issues, including her stroke last year, the family lives in a state of
uncertainty because of Ms. Carignans lack of a legal relationship with J.C.
In addition to these detriments, the Plaintiffs also suffer continued economic harm
as a result of the States refusal to recognize their legal marriage or allow an adoptionharms
which occur each day and cannot be later recompensed, including protections of North Carolinas
inheritance laws if one of them predeceases the other (Compl. 175(c)); ineligibility for important
federal protections such as the ability to take time off work to care for a sick spouse under the
Family & Medical Leave Act (FMLA) (29 C.F.R. 825.122(b)), and access to a spouses social
security benefits, 42 U.S.C. 416(h)(1)(A)(i); and not being recognized as a family on the death
certificate of her spouse.
STANDARD OF REVIEW
When a magistrate judge makes recommendations on motions for preliminary
injunctions pursuant to 28 U.S.C. 636, a district courts review is de novo. Reddick v. White,
456 F. Appx 191, 193 (4th Cir. 2011). A stay of proceedings when a motion for a preliminary
injunction is pending has the practical effect of refusing an injunction, and is therefore treated as
a denial of that motion. Carson, 450 U.S. at 85, 90; see also Wrenn v. Maryland, 819 F.2d 1139
(4th Cir. 1987) (unpublished). When a party timely objects to a magistrate judges denial of a
preliminary injunction, the district judge must determine de novo any part of the magistrate judges
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disposition that has been properly objected to. Fed. R. Civ. P. 72(b)(3); 28 U.S.C. 636(b)(1)
(listing a motion for injunctive relief as a substantive motion reviewed de novo by the district
court); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); BioSignia, Inc. v. Life Line
Screening, 2013 WL 3805138, at *1 n.1 (M.D.N.C. July 22, 2013).
ARGUMENT
I. The Recommendation Erred by Failing to Consider the Balancing Factors for a
Preliminary Injunction, Which Clearly Require Granting Plaintiffs Injunctive Relief.
In recommending a stay, the Magistrate effectively denied the Preliminary Injunction
Motion. The Fourth Circuit requires the evaluation and balancing of the following four factors in
ruling on a motion for preliminary injunction: (1) likelihood of success on the merits; (2) ) whether
movants are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of
equities tips in favor of plaintiffs; (4) an injunction is in the public interest. Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008); W. Va. Assn of Club Owners & Fraternal Servs., Inc. v.
Musgrave, 553 F.3d 292, 298 (4th Cir. 2009). In this case, Megan Parker, Shana Carignan and
their son, J.C., are seeking a preliminary injunction to rectify the immense and irreparable harm
that is occurring daily as a result of North Carolinas refusal to recognize their familys relationship.
Before denying this relief, the Fourth Circuit requires balancing these four factors. Had the
Magistrate Judge properly considered these factors, it would have been clear that the Plaintiffs
meet each requirement and that injunctive relief is required.
A. Plaintiffs Are Likely to Succeed on the Merits.
The Magistrate Judge does not mention the likelihood of success of Plaintiffs
challenges to North Carolinas bans on same-sex marriage and second parent adoption as
violations of the Equal Protection and Due Process Clauses of the United States Constitution.
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Although recommending a stay to wait for Fourth Circuit guidance, the Magistrate Judge ignored
the guidance provided by Windsor, which has led multiple district courts to grant the relief
requested here. In Windsor, the Supreme Court struck down the provision of the federal Defense
of Marriage Act (DOMA) that barred the federal government from recognizing valid marriages of
same-sex couples on the ground that the law violated the Equal Protection and Due Process
Clause. 133 S. Ct. at 2695-96. The Court in Windsor found that the principal purpose and the
necessary effect of [the failure to recognize lawful marriages is] to demean those persons who are
in a lawful same-sex marriage. Id. at 2695. Rejecting the alleged justifications of this
discrimination, the Court held that [b]y seeking to displace this protection and treating those
persons as living in marriages less respected than others, the federal statute is in violation of due
process and equal protection guaranteed by the Constitution. Id.
In the wake of this decision, fifteen district courts have struck down bans on same-
sex marriage.
1
Six of these decisions occurred since the Plaintiffs filed their motion for preliminary
injunction, and one since the Recommendation was issued. No federal court has upheld a same-
sex marriage ban following the Supreme Courts decision in Windsor. In each of these fifteen
cases, the court faced laws causing deprivations and indignities identical to those caused by North

1
Wolf v. Walker, 2014 WL 2558444 (W.D. Wis. June 6, 2014); Whitewood v. Wolf, 2014 WL
2058105 (M.D. Pa., May 20, 2014); Gieger v. Kitzhaber, 2014 WL 2054264 (D. Ore., May 19,
2014); Latta v. Otter, 2014 WL 1909999 (D. Idaho May 13, 2014); Baskin v. Bogan, 2014 WL
1814064 (S.D. Ind. May 8, 2014); Henry v. Himes, 2014 WL 1418395 (S.D. Ohio, Apr. 14, 2014);
DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014); Tanco v. Haslam, 2014 WL 997525
(M.D. Tenn., Mar. 14, 2014); De Leon v. Perry, 975 F.Supp.2d 632 (W.D. Tex. 2014); Lee v. Orr,
2014 WL 683680 (N.D. Ill., Feb. 21, 2014); Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014);
Bourke v. Beshear, 2014 WL 556729 (W.D. Ky., Feb. 12, 2014); Bishop v. United States, 962 F.
Supp. 2d 1252 (N.D. Okla. 2014); Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013);
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013).
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Carolinas (although not necessarily the severe harm caused here) and concluded that they fail (or
are likely to fail) constitutional scrutiny. And, in no case did the district court await guidance from
the Circuit Court of Appeals before rendering a decision. As one court recently put it, a district
court may not abstain from deciding a case because of a possibility that the issues raised in the
case could be resolved in some other way at some other time. Wolf, 2014 WL 2558444, at *43.
Violation of the Equal Protection Clause. Amendment One is discriminatory on
its face. It denies gay and lesbian persons the right to marry the partner of their choosing on the
basis of their sexual orientation. See N.C. Const. Art. XIV, 6; N.C. Gen. Stat. 51-1, 5-1.2. It
also allows heterosexual couples who marry outside of North Carolina to return to the state,
confident that their marriages will be respected, see, e.g., Parker v. Parker, 46 N.C. App. 254, 258
(1980), while gay and lesbian couples are denied the same right.
Similarly, the adoption statutes discriminate on the basis of sexual orientation by
precluding same-sex couples from securing the protections of a second parent adoption for their
children, while allowing families headed by heterosexual couples to obtain those protections. See
Collins v. Brewer, 727 F. Supp. 2d 797, 803 (D. Ariz. 2010) (restricting benefits to married people is
sexual orientation discrimination where state law prevents same-sex couples from marrying). The
Supreme Court has long recognized that laws that treat children differently based on their parents
status are subject to heightened scrutiny. See Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164,
17576 (1972); Mills v. Habluetzel, 456 U.S. 91, 99-102 (1982).
Numerous federal and state courts have recently recognized that sexual orientation
classifications must be recognized as suspect or quasi-suspect and subjected to heightened
scrutiny based on the following four-factor test: (1) whether the class has been historically
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subjected to discrimination; (2) whether the class is a minority or politically powerless;
(3) whether the class has a defining characteristic that frequently bears [a] relation to ability to
perform or contribute to society; and (4) whether the class exhibits obvious, immutable, or
distinguishing characteristics that define them as a discrete group. Windsor v. U.S., 699 F.3d 169,
181 (2d Cir. 2012) (quoting Bowen v. Gilliard, 483 U.S. 587, 602 (1987), and Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 440-41 (1985)), affd Windsor, 133 S. Ct. 2675. It is easy to conclude
that homosexuals have suffered a history of discrimination, Windsor, 699 F.3d at 182, and,
likewise, that gays and lesbians historically did and still do lack power in the political process, id. at
184; see also Pedersen v. Office of Pers. Mngmt., 881 F. Supp. 2d 294, 314-15 (D. Conn. 2012).
There is a scientific consensus that homosexuality is both immutable, see Perry v.
Schwarzenegger, 704 F. Supp. 2d 921, 966 (N.D. Cal. 2010), and bears no relation to an
individuals ability to contribute to society or, in particular, the characteristics relevant to the ability
to form successful marital unions, Perry, 704 F. Supp. 2d at 967.
Classifications that disadvantage a suspect class are treated as presumptively
invidious and must be precisely tailored to serve a compelling government interest to pass
constitutional muster. Plyler v. Doe, 457 U.S. 202, 216-17 (1982). However, as explained below,
the refusal to recognize same sex-marriages and adoptions fails any level of constitutional scrutiny.
Violation of the Due Process Clause. Bans on same-sex marriage violate
Plaintiffs fundamental rights. The freedom to marry has long been recognized as one of the vital
personal rights essential to the orderly pursuit of happiness. Loving v. Virginia, 388 U.S. 1, 12
(1967). The Supreme Court repeatedly has made clear that the right to marry is of fundamental
importance for all individuals, even those who have not traditionally been perceived as eligible to
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exercise that right. Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (emphasis added); see also id.
at 388-90 (state cannot impose unreasonable barriers on remarriage); Boddie v. Connecticut,
401 U.S. 371, 380-81 (1971) (same). As the Supreme Court recognized in the context of DOMA,
North Carolinas statute tells those couples, and all the world, that their otherwise valid marriages
are unworthy of . . . recognition. Windsor, 133 S. Ct. at 2694. By denying Plaintiffs recognition of
their marriage, North Carolina impinges on their right to marry and to enjoy the benefits that legal
recognition of marriage confers. See Obergefell, 962 F. Supp. 2d at 978.
The second parent adoption ban also violates Plaintiffs fundamental rights. The
liberty interest . . . of parents in the care, custody, and control of their[] children is perhaps the
oldest of the fundamental liberty interests recognized by [the Supreme] Court. Troxel v. Granville,
530 U.S. 57, 65 (2000); see Moore v. City of E. Cleveland, 431 U.S. 494, 503-06 (1977)
(recognizing fundamental right to family integrity). The Fourth Circuit has recognized that the
constitutional right to familial liberty can be implicated both by governmental attempts to interfere
with particularly intimate family decisions, and government actions that sever, alter, or otherwise
affect the parent/child relationship. Hodge v. Jones, 31 F.3d 157, 163 (4th Cir. 1994). North
Carolinas adoption laws do both by refusing to recognizeand interfering withPlaintiffs
decisions regarding the care of their children. (See, e.g., Carignan Aff. 29-34.) Along with
North Carolinas marriage ban, prohibiting second parent adoption humiliates tens of thousands of
children now being raised by same-sex couples . . . [and] makes it even more difficult for the
children to understand the integrity and closeness of their own family and its concord with other
families in their community and in their daily lives. Windsor, 133 S. Ct at 2694.
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These Bans Fail Any Level of Review. Defendants offer no justification for these
laws sufficient to withstand even rational basis review. (See Dkt. No. 88 (Defs PI Opp.) at 6,
8-10; Obergefell, 962 F. Supp. 2d at 995.) Defendants only defense of the law on the merits is an
interest in preserving the historical definition of marriage. (Defs PI Opp. at 8.) This is not a
sufficient legitimate state interest. See Heller v. Doe, 509 U.S. 312, 326 (1993) (tradition alone
does not satisfy rational basis review); DeBoer, 973 F. Supp. 2d at 772 (moral disapproval is
insufficient rationale for upholding a provision of law). Defendants fail to explain why recognizing
marriages of same-sex couples will diminish the institution by deterring opposite-sex couples from
marrying or procreating. See Kitchen, 961 F. Supp. 2d at 1211-12.
To the extent the State seeks to defend the ban as advancing the welfare of minors,
that argument is fundamentally flawed. See Bishop, 962 F. Supp. 2d at 1291-95 (the exclusion of
same-sex couples [from marriage] is so attenuated from any of [the asserted] goals that the
exclusion cannot survive rational basis review) (internal citations omitted); Kitchen, 961 F. Supp.
2d at 1215 (finding States arguments as unpersuasive as the Supreme Court found them [in the
context of interracial marriage] fifty years ago). In fact, children raised by same-sex couples in
North Carolinalike J.C.are damaged by the refusal to respect their parents relationship, not
helped by it. Cf. Perry, 704 F. Supp. 2d at 1000.
B. Plaintiffs Are Likely to Suffer Irreparable Harm Absent an Injunction.
In the Recommendation, the Magistrate Judge does not address any of the
concrete, serious and irreparable harms caused by the lack of recognition of Ms. Carignans and
Ms. Parkers marriage and the categorical denial of adoptions to same-sex couples. The granting
of a stay will cause the Plaintiffs to continue to suffer these harms each day until the stay is lifted.
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J.C.s Medical Conditions. Because the state does not respect his parents
marriage, and will not allow Ms. Carnigan to adopt him absent a marriage recognized in North
Carolina, J.C. cannot be covered on Ms. Carnigans insurance. His development is being
negatively impacted because his parents are unable to pay for all of the medical care he needs
which would otherwise be covered by insurance. See, e.g., supra at 6-7. He is also unable to take
advantage of unique developmental opportunities that will vastly improve his quality of life, such as
one-on-one tutoring and alternative therapies, which have been proven to help with cerebral palsy
and could be provided but for North Carolinas laws challenged here. (Parker Aff. 13.) J.C. is
currently six years old and at a critical point in his growth and development. (Id. 11) If this
situation is not remedied immediately, J.C.s opportunity to grow and develop will be lost. Being
treated at a later time will not undo the damage that is being done at this critical stage in his life.
Ms. Carignans lack of recognition as a legal parent also causes their entire family
actual and irreparable harm every day. She is often faced with situations where her rights are not
recognized, and she cannot assume the parental responsibilities that she otherwise would be able
to exercise. See supra page at 6-7. Finally, she has been, and may be again, denied access to
and decision-making abilities for her son during medical procedures. (Carignan Aff. 31.)
Denial of a Fundamental Right Constitutes Irreparable Harm. Fourth Circuit law
has confirmed that deprivation of a constitutional freedom, for even minimal periods of time,
unquestionably constitutes irreparable injury. Legend Night Club v. Miller, 637 F.3d 291, 302
(4th Cir. 2011) (holding violation of First Amendment constituted per se irreparable injury) (quoting
Elrod v. Burns, 427 U.S. 347, 373 (1976)); Henry v. Greenville Airport Commn, 284 F.2d 631, 633
(4th Cir. 1960) (injunction must be granted to a person who clearly establishes by undisputed
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evidence that he is being denied a constitutional right). As explained by one recent court, refusal
to recognize the plaintiffs marriages leads to an imminent risk of potential harm to their children
during their developing years from the stigmatization and denigration of their family relationship.
Tanco, 2014 WL 997525, at *7. These are harms that cannot be resolved through monetary
relief. Id.; see also Elrod, 427 U.S. at 373; De Leon, 975 F. Supp. 2d at 663-64.
Denial of Federal and State Benefits Attendant to Marriage and/or Adoption
Constitute Further Irreparable Harm. Plaintiffs are also currently being denied state and federal
benefits and protections. See supra p. at 7; see also Windsor, 133 S. Ct. at 2691 (a states
definition of marriage is the foundation of the States broader authority to regulate the subject of
domestic relations with respect to the protection of offspring, property interests, and the
enforcement of marital responsibilities) (internal quotation marks and citation omitted). Even
certain federal protections are available only to couples whose marriages are legally recognized by
their home state. De Leon, 975 F. Supp. 2d at 663.
C. The Balance of Equities and the Public Interest Favor Granting the
Preliminary Injunction.
Balancing here the competing claims of injury and considering the effect on each
party of the granting or withholding of the requested relief in the current controversy makes clear
that the equities favor granting Plaintiffs requested injunctive relief. Winter, 555 U.S. at 24. As
explained supra in Section I. B., the hardships on the plaintiffs are immediate and severe and
cannot later be remedied, whereas the burden on the State is minimal or nonexistent. North
Carolina already possesses the infrastructure necessary to recognize out-of-state marriages, as
well as to permit same-sex couples the chance to adopt; the state needs only extend the available
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mechanisms in a nondiscriminatory manner. In fact, the Fourth Circuit has held that a state is in
no way harmed by issuance of a preliminary injunction which prevents the state from enforcing
restrictions likely to be found unconstitutional. If anything, the system is improved by such an
injunction. Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184, 191 (4th Cir. 2013) (quoting
Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002)). Finally, preliminarily
enjoining enforcement of an unconstitutional law in no way disserves the public interest; rather,
upholding constitutional rights surely serves the public interest. Id.
The Magistrate Judge assumes that even if an injunction [were] issued, that relief
would not immediately take effect . . . and would be stayed pending appeal to the Fourth Circuit,
so there would be no practical effect of allowing these Plaintiffs their day in court on the motion
for preliminary injunction. (Rec. at 3.) This is incorrect. There is no basis for the Magistrates
statement that any decision by this Court to allow immediate injunctive relief would be stayed
pending appellate review. (Id.) For example, in two cases not cited in the Recommendation,
district courts in Indiana and Tennessee District Courts issued decisions invalidating marriage
bans, notwithstanding the fact that cases concerning state marriage bans, were pending before the
Sixth and Seventh Circuits or that the effect of such decision might later by stayed by theses Circuit
Courts. See Baskin, 2014 WL 1568884; Tanco, 2014 WL 997525. On June 4, 2014, the Supreme
Court, in a one-sentence order without explanation, refused to stay same-sex marriages in Oregon.
Natl Org. for Marriage v. Geiger, No. 13A1173, Order in Pending Case (U.S. June 4, 2014).
Moreover, even if the effect of the judgment were stayed, an opinion on the merits
of this case would move the case forward, prevent harmful and continued delay on a final
judgment, and give the Plaintiffs at least some measure of the dignity that they seek at this critical
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point in their lives. Plaintiffs respectfully ask that the Court not continue to deny the Plaintiffs their
day in court simply because another case that may affect some of the legal principles at issue in
their case. Landis v. North Am. Co., 299 U.S. 248, 255 (1936) (Only in rare circumstances will a
litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law
that will define the rights of both.); see also Harris v. Rainey, 2014 WL 1292803 (W.D. Va. Mar.
31, 2014) (granting a motion to stay largely because plaintiffs had intervened at the Fourth Circuit,
giving them a voice in the debate pending at the court of appeals; therefore they would not be
forced to stand aside while another group of litigants settles the rule of law that will define the
rights of both) (internal quotation marks and citations omitted).
2
Dispositive guidance has been
provided in Windsor, as more than a dozen federal courts have unanimously concluded. See
supra n.1.
As explained supra in Section I.B., these Plaintiffs have specific and extreme
circumstances, and a court must hear the merits of their case before refusing to grant them relief.
In each of the cases the Recommendation cites, the district court ruled on the merits, overturned
the marriage bans, and stayed only the effect of the judgment, not the action itself. See De Leon v.
Perry, 975 F.Supp.2d 632 (W.D. Tex. 2014); Bostic v. Rainey, 970 F. Supp. 2d 456, 283 (E.D. Va.
Feb. 13, 2014); Bishop, 962 F. Supp. 2d at 1261. The Plaintiffs in this case deserve to have their
specific case heard and the preliminary injunction factors balanced before the court allows their
daily suffering to continue.

2
The court in Harris concluded that the intervention of plaintiffs into the Bostic Fourth Circuit
appeal to be a procedural game-changer. Id. at *2.
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II. The Magistrate Judge Erred in Recommending the Grant of a Stay by Failing to
Consider the Williford Balancing Test in Ruling on a Motion to a Stay.
A party seeking to obtain a stay must demonstrate a clear case of hardship or
inequity in being required to go forward, if there is even a fair possibility that the stay for which he
prays will work damage to someone else. Williford v. Armstrong World Indus., Inc., 715 F.2d 124,
127 (4th Cir. 1983) (quoting Landis, 299 U.S. at 254-55). Here, it is uncontested that the Plaintiffs
continue to suffer irreparable harm on a daily basis. As such, Defendants bore the heavy burden
of establishing clear and convincing circumstances that show that the hardships they will suffer
simply from addressing Plaintiffs claims outweigh[] potential harm to the party against whom it is
operative. Id. Defendants made no such showing and the Recommendation makes no mention of
a clear case of hardship or inequity in being required to go forward. Ignoring this unambiguous
Fourth Circuit law is a clear error of law.
District courts generally balance three factors in determining whether to grant a
stay: (1) the interests of judicial economy; (2) hardship and equity to the moving party if the action
is not stayed; and (3) potential prejudice to the non-moving party. White v. Ally Fin. Inc., 969 F.
Supp. 2d 451, 462 (S.D. W. Va. 2013) (citing Williford, 715 F.2d at 127). The Magistrate Judge
failed to address these factors, instead merely stating that a stay was justified in light of the
expedited review of the important issues raised in this case already underway in the Fourth Circuit
in Bostic, and in light of the Supreme Courts intervention and stay of relief in Herbert v. Kitchen
pending resolution of these issues by the appellate courts. (Rec. at 4.) The Recommendation fails
to identify any hardship to the State if the case were allowed to move forward and ignores the
overwhelming evidence of irreparable harm to the Plaintiffs that will continue if the stay is granted.
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A. Judicial Economy Is Not Served by the Granting of a Stay.
The Magistrate Judge bases its Recommendation for a stay entirely on the
inefficiency and uncertainty that may result from a decision in this case before a decision in
Bostic. (Rec. at 3.) However, the theoretical possibility of avoiding further unnecessary litigation
expenses and achieving judicial economy by avoiding a potentially unnecessary judicial ruling, falls
far short of a clear case of hardship or inequity. Baltimore Gas & Elec. Co. v. United States, 133
F. Supp. 2d 721, 730 (D. Md. 2001) (citing Williford, 715 F.2d at 127). The ordinary process by
which district courts rule on the issues before them is in light of appellate and other precedent then
existing. It would flip the normal functioning of the federal court system on its head for a district
court to issue a stay because an appellate courtwhether that be the Fourth Circuit sitting as a
panel or en banc, or even the Supreme Courtmight decide issues affecting an individuals case.
Unlike the cases cited in the Recommendation, issues pending in this case are not
the same as those pending in Bostic. The Plaintiffs in this case are suffering specific and extreme
irreparable harm because of North Carolinas marriage and adoption bans. Bostic concerns a
marriage ban alone and not the second parent adoption issue at the heart of this case. Therefore,
the Magistrate Judge is likely incorrect in her statement that the decision of the Fourth Circuit in
Bostic will provide the controlling legal principles for this Court to apply. (Rec. at 3.)
B. There Is No Hardship to the Moving Party.
The Recommendation cites inefficiency and uncertainty as the primary reasons for
granting the stay. (Rec. at 3.) However, hearing the motion for preliminary injunction on the merits
will not itself create either inefficiency or uncertainty. In each case cited in the Recommendation
where a stay was granted, the stay was put into place after a hearing on the merits and operated to
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stay only the effect of the judgment, not the action itself. See DeLeon, 133 S. Ct. 2652; Bostic, 970
F. Supp. 2d at 483; Bishop, 962 F. Supp. 2d at 1261. There is minimal if any hardship on the State
in being required to defend a preliminary injunction motion challenging an unconstitutional state law
in a case which has been extensively briefed over the past two years.
C. Any Claimed Hardship to the Moving Party Is Clearly Outweighed by the
Potential Prejudice to the Non-Moving Party.
Even if Defendants could establish that they would face hardship by litigating this
case in the absence of a stay, such hardship must outweigh the potential prejudice to Carignan-
Parker family. As explained supra, see pp. 14-15, Plaintiffs suffer considerable and ongoing
irreparable harm daily that can only be remedied by granting to Plaintiffs the injunction they seek.
In recommending the grant of a stay, the Magistrate Judge failed to even consider this harm. As
noted above, preliminary relief is sought in this case and in Gerber only on behalf of a limited
number of families facing urgent circumstances. Any harm to the state in being required to
recognize their marriages cannot outweigh the extreme and irreparable harms these couples face.
CONCLUSION
Plaintiffs have waited more than two years for a hearing on the merits and even to
commence discovery. Justice delayed truly is justice denied. For all of the foregoing reasons,
Plaintiffs respectfully request that the Court sustain these Objections and reject the
Recommendation of the Magistrate Judge.
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Dated: June 13, 2014
Raleigh, North Carolina



Rose A. Saxe
James D. Esseks
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street
New York, New York 10004-2400
Telephone: (212) 549-2500
Facsimile: (212) 549-2646
rsaxe@aclu.org
jesseks@aclu.org

Elizabeth O. Gill
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, California 94111-4805
Telephone: (415) 343-1237
Facsimile: (415) 255-1478
egill@aclunc.org

Christopher Brook
N.C. State Bar No. 33838
ACLU OF NORTH CAROLINA
P.O. Box 28004
Raleigh, North Carolina 27611-8004
Telephone: (919) 834-3466
Facsimile: (866) 511-1344
cbrook@acluofnc.org

/s/ Amy E. Richardson
Amy E. Richardson
N.C. State Bar No. 28768
HARRIS WILTSHIRE & GRANNIS LLP
2009 Fairview Road
Suite 6220
Raleigh, North Carolina 27628
Telephone: (919) 429-7386
Facsimile: (202) 730-1301
amy.richardson@harriswiltshire.com

Jonathan D. Sasser
N.C. State Bar No. 10028
Jeremy M. Falcone
N.C. State Bar No. 36182
P.O. Box 33550
Raleigh, North Carolina 27636
Telephone: (919) 865-7000
Facsimile: (919) 865-7010
jsasser@acluenc.org
jfalcone@aclunc.org

Garrard R. Beeney
David A. Castleman
C. Megan Bradley
William R.A. Kleysteuber
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004-2498
Telephone: (212) 558-4000
Facsimile: (212) 558-3588
beeneyg@sullcrom.com
castlemand@sullcrom.com
bradleyc@sullcrom.com
kleysteuberr@sullcrom.com

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing has been filed electronically with the
Clerk of the Court using the CM/ECF system, which will send notification of such filing to all
counsel of record.
This the 13
th
day of June, 2014.


HARRIS WILTSHIRE & GRANNIS LLP

/s/ Amy E. Richardson
Amy E. Richardson
N.C. State Bar No. 28768
2009 Fairview Rd. #6220
Raleigh, NC 27628
Telephone Number: (919) 429-7386
Facsimile: (202) 730-1301
amy.richardson@harriswiltshire.com
Attorney for Plaintiffs


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