3:14-cv-00213 #71

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

General Synod of The United Church of Christ;
Central Conference of American Rabbis;
Alliance of Baptists, Inc.; Association of
Welcoming & Affirming Baptists; Reverend
Joseph Hoffman; Reverend Nancy Ellett Allison;
Reverend Nathan King; Reverend Nancy Kraft;
Rabbi Jonathan Freirich; Reverend Robin
Tanner; Reverend Mark Ward; Reverend Dr.
Nancy E. Petty; The Very Reverend Todd
Donatelli; The Reverend Canon Thomas
Murphy; Reverend Milly Morrow; Rabbi Lucy
H.F. Dinner; Rabbi Ari N. Margolis; Rabbi Ariel
Edery; Rabbi Eric M. Solomon; Reverend Russ
Dean; Reverend Amy Jacks Dean; Kay Diane
Ansley; Catherine Cathy McGaughey;
Elizabeth Lisa Cloninger; Kathleen Smith;
Shauna Bragan; Stacy Maloney; Cathy Fry;
Joanne Marinaro; Joel Blady; Jeffrey Addy;
Betty Mack; and Carol Taylor;

Plaintiffs,

v.

Roy Cooper, Attorney General of North
Carolina; Drew Reisinger, Register of Deeds for
Buncombe County; Wayne Nixon, Register of
Deeds for Cabarrus County; Tonia Hampton,
Register of Deeds for McDowell County; J. David
Granberry, Register of Deeds for Mecklenburg
County; Laura M. Riddick, Register of Deeds for
Wake County; Ronald L. Moore, Buncombe
County District Attorney; Roxann Vaneekhoven,
Cabarrus County District Attorney; Bradley
Greenway, McDowell County District Attorney;
Andrew Murray, Mecklenburg County District
Attorney; and Ned Mangum, Wake County
District Attorney;

Defendants.
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Civ. No. 3:14-cv-213

Case 3:14-cv-00213-RJC-DCK Document 71 Filed 06/20/14 Page 1 of 22
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PLAINTIFFS REPLY IN SUPPORT OF
PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs seek a preliminary injunction to stop the ongoing deprivation of Plaintiffs
constitutional rights and to stop the unjustifiable discrimination against same sex-couples, caused
by the State of North Carolinas Marriage Laws. Defendants opposition to Plaintiffs motion
for preliminary injunction essentially disregards and concedes Plaintiffs demonstrable
likelihood of success on the merits and the irreparable harm Plaintiffs suffer and will continue to
suffer due to their constitutional deprivations and discrimination. Moreover, Defendants assert
no meaningful state interest or public interest in maintaining these ongoing deprivations and
discrimination. They ask this Court to deny Plaintiffs motion for preliminary relief in the face
of an overwhelming consensus of nearly twenty court rulings in Plaintiffs favor and thus a
vanishing possibility that Plaintiffs right to legal marriage will not be vindicated. Consequently,
the Court should grant the preliminary injunction.
I. Defendants Have Failed to Show that Plaintiffs Are Not Entitled to a Preliminary
Injunction

Defendants do notbecause they cannotseriously contest Plaintiffs demonstration
that they meet the four elements necessary to obtain a preliminary injunction: (1) Plaintiffs are
likely to succeed on the merits; (2) Plaintiffs are likely to suffer irreparable harm in the
absence of preliminary relief; (3) the balance of equities favors Plaintiffs; and (4) an
injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008);
WV Assn of Club Owners v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009); Houey v. Carolina
First Bank, 890 F. Supp. 2d 611, 620 (W.D.N.C. 2012). The crux of this Motion lies in the
application of this well-established test. Because Plaintiffs overwhelmingly satisfy these
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requirements, and in many instances Defendants do not even attempt to rebut them, a preliminary
injunction should be granted.
A. Plaintiffs Have a Strong Likelihood of Success on the Merits
1. Due Process and Equal Protection Claims
Since the Supreme Courts decision in United States v. Windsor, 133 S.Ct. 2675 (2013),
every court that has considered due process and equal protection challenges to state bans on
same-sex marriageat last count, 16 federal court and 3 state court decisions
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have ruled that
these prohibitions are unconstitutional. The remarkable uniformity in the legal and factual
analysis and sheer weight and momentum of this precedent demonstrate that Plaintiffs have a
very strong likelihood of success on the merits of their due process and equal protection claims.
Indeed, it is difficult to identify another case in which a motion for preliminary injunction has
been litigated with more extensive legal precedent supporting likelihood of success on the merits.
Conspicuously and significantly, Defendants do not proffer any substantive legal arguments to
dispute this remarkable trend in the law and its sufficiency to establish that Plaintiffs are likely to
succeed on the merits of their due process and equal protection claims. There is simply no
contrary authority for Defendants to cite and no good arguments to contest this tidal wave of
decisions. Defendants do not even try. For all intents and purposes, in omitting any argument to
the contrary, Defendants concede that Plaintiffs are likely to prevail on the merits of these
Fourteenth Amendment claims.
Rather than address the case law supporting a preliminary injunction on these claims,
Defendants instead assert that the pending Fourth Circuit appeal in Bosticthe subject and basis

1
For the Courts reference, Plaintiffs have compiled a list of all post-Windsor U.S. District Court
and state court cases striking down state same-sex marriage bans, attached herein as Exhibit A.
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of Defendants separate Motion to Stayconstitutes an independent procedural basis to deny a
motion for preliminary injunction. Defendants cite no authority for the proposition that an
appeal in another case that might address some of the claims in this case can be a basis to deny a
preliminary injunction seeking to halt what the nearly twenty courts to decide the question have
found to be a fundamental constitutional violation. The pending appeal in Bostic is not an
independent basis for denying Plaintiffs motion for preliminary injunction.
2. First Amendment Claims
Defendants contest Plaintiffs likelihood of success on their First Amendment claims on
the grounds that North Carolina law does not bar clergy from performing marriage ceremonies
for same-sex couples or otherwise. See State Oppn at 5. [DE 65] But Defendants base their
view on a tortured and illogical reading of a single clause in the North Carolina Marriage Laws.
The North Carolina statutes at issue here, when read in context and as a whole, are quite clear
and directly contrary to Defendants interpretation.
As plainly stated under North Carolina law, the State deputized these Clergy Plaintiffs to
perform marriages through their religious rites, but only for opposite-sex couples. See N.C.G.S.
51-1, 51-6. And only opposite-sex couples may obtain a marriage license. A separate
statutory provision, N.C.G.S. 51-7, entitled Penalty for solemnizing without license, applies
to [e]very minister authorized to solemnize a marriage under the laws of this State, and
specifies that any such authorized minister who marries any couple without a license being first
delivered to that [minister] shall be guilty of a Class 1 misdemeanor. The statute further
dictates that any such minister shall pay two hundred dollars ($200.00) to any person who
sues therefore. Id. Thus, any minister who performs a religious ritual to solemnize a
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marriage between two people of the same sex (who, under current North Carolina law, cannot
obtain a marriage license) is subject to prosecution and civil penalty.
Defendants argue that the penalties of 51-7 against state-authorized ministers who
conduct marriages without licenses do not apply to Clergy Plaintiffs here because same-sex
marriage ceremonies are not marriages under North Carolina law. By definition, Defendants
assert, Clergy Plaintiffs cannot be prosecuted for performing a ceremony that legally cannot
result in a marriage. See State Oppn at 5. [DE 65] This analysis of 51-7 requires interpreting
the phrase under the laws of this State to modify the word marriage, rather than the more
obvious reading that the phrase specifies the persons to whom the law appliesthose ministers,
officers, or other persons authorized under the laws of this State to conduct marriage
ceremonies. The States interpretation of that single phraseunder the laws of this State
would render the statute meaningless, since it would mean that a member of the clergy could be
prosecuted only for behavior that is legally impossible.
The one case Defendants cite in support of their position, State v. Lynch, 272 S.E.2d 349
(N.C. 1980), shows the flaw in their construction of the statute. The North Carolina Supreme
Court in Lynch considered the States bigamy statute. The court applied the phrase under the
laws of this State to the individual performing a putative first marriage and found the individual
not authorized to perform marriages under the laws of the State. Id. at 488. Moreover, like the
Defendants assertion that 51-7 cannot apply to performing same-sex marriages because they
are not legally recognized marriages, the bigamy statute at issue in Lynch is susceptible to a
similar interpretation that would make the law incapable of violation. Following the Defendants
reasoning, any legally prohibited second marriage that occurs while a first marriage remains in
place would not be a marriage at all under North Carolina law, and, thus, could never be
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bigamous. To avoid the conundrum of interpreting the bigamy statute as being incapable of
violation, the court in Lynch construed the statute to mean that a person commits bigamy when
being lawfully married he purports to marry another person. Id. at 353 (emphasis added).
The North Carolina Supreme Courts straightforward reading of the statute in Lynch
completely undermines the Defendants argument here. The Clergy Plaintiffs here are seeking to
marry same-sex couples: to bless and recognize the union of same-sex couples [i]n accordance
with any mode of solemnization recognized by their respective religious denominations.
N.C.G.S. 51-1 (defining marriage ceremony). Consistent with the holding of Lynch, 51-7
criminalizes the solemnization of a same-sex marriage by a minister, regardless of whether North
Carolina regards that marriage as valid. This reading of the statute is confirmed by the fact that
at least one North Carolina District Attorney has stated that he and his office would prosecute
consistent with N.C.G.S. 51-7 . . . any person within his jurisdiction who undertook to
solemnize a marriage without a license. Aff. of Michael J. Bunch, 4. [DE 67-1]
Also, Plaintiffs view that the phrase under the laws of this State in 51-7 refers to the
persons authorized to perform marriages rather than to modify the word marriage is strongly
supported by Lynch. In reversing the bigamy conviction in Lynch, the North Carolina Supreme
Court held that the first marriage in that case was invalid because the person who performed
the ceremony was not an authorized minister under the laws of the State. Id. at 355. Thus, only
persons who are authorized to perform marriages can violate 51-7.
Other provisions in the code also make clear that 51-7 encompasses a prohibition
against deputized ministers solemnizing those marriages that the State does not recognize as
legally valid. For example, N.C.G.S. 51-6 expressly authorizes ministers to perform
commitment marriage ceremonies that lack any civil or legal effectbut only for opposite-sex
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couples who have already obtained a valid marriage license from a civil official in this or some
other state. That express authorization of commitment ceremonies solely for opposite-sex
couples who already hold marriage licenses would be completely unnecessary and meaningless
if, as Defendants claim, North Carolina law allowed clergy to perform any religious marriage
ceremony without legal effect.
Defendants also assert that Plaintiffs First Amendment claims are unlikely to succeed
because North Carolinas same-sex marriage ban is a valid and neutral law of general
applicability that cannot violate the First Amendment. See State Oppn at 8 (citing Employment
Div., Dept. of Human Res. of Ore. v. Smith, 494 U.S. 872, 879 (1990)). [DE 65]. On its face,
however, this is not so. North Carolinas Marriage Laws expressly prohibit the religious activity
of the Clergy Plaintiffs by barring them from solemnizing same-sex marriages under threat of
criminal penalty and civil liability. The law regulates clergy both by conferring State permission
to perform commitment ceremonies under limited circumstances, N.C.G.S. 51-6, and by
imposing sanctions for violations. N.C.G.S. 51-7. The law thus explicitly identifies and
regulates clergy and then solely in their performance of a marriage ceremony. Indeed, as the
undisputed declarations filed in conjunction with Plaintiffs motion illustrate, marriage is a
fundamental clerical function in virtually every religion.
This claim is far removed from the circumstances in Smith, where a generally applicable
prohibition on the use of controlled substances applied to everyone, including clergy. Here,
unlike in Smith, North Carolina is telling clergy what kind of marriage ceremony they may or
may not perform. Unlike a neutral law of general applicability, the North Carolina law directly
dictates to clergy what religious practices they may undertake and with whom, not as an
incidental result of some broader regulatory regime, but as the very goal and object of the law.
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Defendants also cite Citizens for Equal Protection v. Bruning, 455 F.3d 859, 870 (8th
Cir. 2006) to support their argument that the North Carolina Marriage Laws do not violate the
First Amendment right to associate. Bruning is inapposite for several reasons. First, it did not
address the rights of clergy to perform marriage ceremonies free of criminal prosecution or civil
liability. Second, the courts limited analysis in Bruning addressed whether Nebraskas
constitutional prohibition on same-sex marriage restricted plaintiffs expressive association
rights by making it more difficult for a group with full access to the political process to
successfully advocate its views. Id. Plaintiffs in this case do not argue that the North Carolina
Marriage Laws impede their ability to advocate their political views. Instead, they argue that
those laws burden their ability to express and transmit their respective systems of values. See
Boy Scouts of Am. v. Dale, 530 U.S. 640, 650 (2000). Thus, Bruning did not address the First
Amendment problems presented by marriage laws like North Carolinas.
B. Plaintiffs Will Suffer Irreparable Harm Absent a Preliminary Injunction
The North Carolina Marriage Laws are violating the constitutional rights of all Plaintiffs
in an ongoing and persistent manner, which constitutes per se irreparable harm even if
temporary. See, e.g., Legend Night Club v. Miller, 637 F.3d 291, 302 (4th Cir. 2011) ([I]t is
well established that [t]he loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.) (quoting El-rod v. Burns, 427 U.S. 347, 373
(1976)); Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978) (same). The Plaintiff Couples
additionally suffer ongoing financial losses, for example, from their inability to inherit their
partners estate, to deduct the cost of including a spouse on an employer-sponsored health
insurance plan, and to benefit from the spousal exception on inheritance taxes. See Plaintiffs
Memorandum in Support of Their Motion for Preliminary Injunction at 36. [DE 5] North
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Carolinas Marriage Laws also undermine the ability of same-sex couples to care for their
children in numerous ways because the same-sex partners cannot both be recognized as legal
parents. Id.
Defendants assert that there is no irreparable harm to Clergy Plaintiffs because they have
neither been prosecuted nor threatened with prosecution. However that is not the legal test for an
injury to a partys First Amendment rights. A law that on its face prohibits clergy from the free
exercise of their religion chills the First Amendment rights of those clergy. Defendants
apparent declaration of no intent to prosecute does not change the plain language of the statute
and similarly does nothing to address potential civil penalties faced by Clergy Plaintiffs under
the Marriage Laws. Moreover, if Defendants do not intend to prosecute Clergy Plaintiffs under
N.C.G.S. 51-7, an injunction against enforcement of the statute does not harm Defendants in
any respect. Courts have long recognized the actual harm resulting from the potential for a law
to be enforced, even absent actual enforcement. See Virginia v. American Booksellers Assn, 484
U.S. 383, 393 (1988); North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 711 (4th Cir.
1999) ([C]ourts have long recognized that the statutes mere existence risks chilling First
Amendment rights.); see also Mobil Oil Corp. v. Attorney General of Com. of VA, 940 F.2d 73,
76 (4th Cir. 1991) (We see no reason to assume that the [State] legislature enacted this statute
without intending it to be enforced.). Defendants citation to John Lemmon Films, Inc. v. Atl.
Releasing Corp., 617 F. Supp. 992, 996 (W.D.N.C. 1985), is not to the contrary. That case
refused to grant a preliminary injunction where the harm of an alleged trademark violationi.e.,
potential confusion among prospective customerswas speculative and might occur in the
future. Id. Here the asserted harms, including chilling of protected First Amendment rights, are
certain and already occurring regardless of whether the State ever decides to prosecute.
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Further, those harms are irreparable. The Fourth Circuit defines irreparable injuries as
those for which there is no adequate remedy at law and which cannot be undone through
monetary remedies. Tiffany v. Forbes Custom Boats, Inc., 959 F.2d 232 (4th Cir. 1992).
Deprivations of constitutional rights are per se irreparable. See, e.g., Miller, 637 F.3d at 302; see
also Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 178 (3d Cir. 2002)
(Limitations on the free exercise of religion inflict irreparable injury.) (citations omitted).
There is no remedy at law or monetary compensation that can adequately compensate Plaintiffs
for the denial of their right to marry the partner of their choosing and to celebrate that marriage
consistent with their religious faiths. See De Leon v. Perry, 975 F. Supp. 2d 632, 663-64 (W.D.
Tex. 2014) (holding that the denial of equal marriage rights for same-sex couples constitutes
irreparable injury).
Moreover, at least one North Carolina District Attorney has indicated his intention to
prosecute and impose penalties on any clergy person who attempts to solemnize a marriage
without a state license. See Bunch Aff. at 4. [DE 67-1] This explicit statement of intent to
prosecute makes the threat to Clergy Plaintiffs very real, and is more than sufficient to constitute
irreparable harm when constitutional rights are threatened.
C. The Balance of Equities Favors Plaintiffs
Defendants opposition to the preliminary injunction offers virtually no arguments why
granting a preliminary injunction would harm the State. Indeed, 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) (internal citations and quotation marks omitted).
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Defendants sole argument that the balance of equities favors their position is that some
of the preliminary injunctions granted by other district courts invalidating same-sex marriage
prohibitions have been stayed. See Hampton Oppn at 5-6 [DE 59]; Riddick Oppn at 12-13 [DE
58]. This argument is unavailing. First, since those cases all involved stays after plaintiffs had
prevailed on their marriage equality claims, they speak more to the likelihood of Plaintiffs
success than anything else. Moreover, the issue of whether to enter a stay of this litigation has
been briefed separately in this case.
Second, Defendants cannot simply omit any showing of actual harm to them in balancing
the equities. It is inconceivable how the judicially-protected performance by clergy of same-sex
marriage ceremonies would cause any harm to Defendants. Indeed, Defendants provide no
explanation for how even an injunction requiring the issuance of marriage licenses and the
marriages that might follow would cause Defendants any harm. Defendants urge that the risk
(however remote) that marriages performed pursuant to a preliminary injunction might later be
invalidated causes harm. But that harm would fall on the Plaintiffs, who would have to deal with
the uncertainty of their marital status. Just as nearly twenty courts have disclaimed any rational
basis to deny same-sex couples the same right to marriage as opposite-sex couples, the
government has no legitimate interest that would suffer as a result of a preliminary injunction to
afford this right.
D. The Public Interest Is Served by Granting an Injunction
The Fourth Circuit has consistently held that upholding constitutional rights surely
serves the public interest. Centro Tepeyac, 722 F.3d at 191 (internal citations and quotation
marks omitted); Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2013) (same);
Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) (same); see also ACLU of
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Ill. v. Alvarez, 679 F.3d 583, 589-90 (7th Cir. 2012) ([I]f the moving party establishes a
likelihood of success on the merits, the balance of harms normally favors granting preliminary
injunctive relief because the public interest is not harmed by preliminarily enjoining the
enforcement of a statute that is probably unconstitutional.).
The only harm to the public alleged by Defendants is that issuing an injunction will cause
immense confusion. See Riddick Oppn at 11-12. [DE 58] Defendants provide no actual
support for this assertion, apparently content to rely only on the experience in Utah, where the
district court in Kitchen v. Herbert, No. 2:13cv217, 2013 WL 6834634 (D. Utah Dec. 23, 2013),
enjoined the State of Utah from enforcing its statutory and constitutional bans on same-sex
marriage. The state in Kitchen subsequently sought a stay, which was denied by the district court
and the U.S. Court of Appeals for the Tenth Circuit. The Supreme Court granted a stay
approximately two-and-a-half weeks after the initial ruling, during which time over 1,300
marriage licenses had been issued to same-sex couples. See Riddick Oppn at 11-12. [DE 58]
Notably, Defendants do not explain how the granting of lawful marriage licenses to same-sex
couples in Utah constitutes a harm to be avoided and fail to identify any other harm resulting
from this alleged confusion. Indeed, Defendants can point to no harm to the public that even
comes close to outweighing the publics strong interest in protecting the constitutional rights of
all of its citizens.
As with any supposed harm to Defendants, the resulting impact on the public interest of
any confusion would fall mainly on those seeking the preliminary injunction and others like
them who might choose to get married during its pendency. This would not qualify as a harm to
the public interest. Indeed, the story from Utah in the wake of the Kitchen decision, which
Defendants conveniently omit, makes this point. After the Supreme Court entered its stay of the
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Kitchen ruling, the State of Utah indicated that it would not necessarily recognize the same-sex
marriages that occurred between the initial ruling and the Supreme Courts stay. A lawsuit was
filed on behalf of four same-sex couples who alleged deprivations of their property and liberty
interests under state and federal laws resulting from the States failure to recognize their
marriages. The District Court in Evans v. Utah, No. 2:14-cv-55, 2014 WL 2048343 (D. Utah
May 19, 2014), ruled that the plaintiffs had demonstrated a likelihood of success on the merits
and that the State had placed [p]laintiffs and their families in a state of legal limbo with respect
to adoptions, child care and custody, medical decisions, employment and health benefits, future
tax implications, inheritance, and many other property and fundamental rights associated with
marriage, and that [t]hese legal uncertainties and lost rights cause harm each day that the
marriage is not recognized. [DE 41-3] Thus, any limbo resulting from Plaintiffs marrying
prior to a final judgment on the merits and exhaustion of all appeals is for Plaintiffs to address
and does not warrant denial of a preliminary injunction.
II. Defendants Apply the Wrong Test for Considering a Preliminary Injunction

Unable to prevail on the traditional four-factor test for a preliminary injunction,
Defendants contend that Plaintiffs motion should be denied under a heightened standard,
because Plaintiffs seek a mandatory rather than a prohibitive injunction; because the
preliminary injunction disturbs the status quo; or because a preliminary injunction offers
Plaintiffs all of the relief they can obtain at trial. See Riddick Oppn at 4-5 [DE 58]; Hampton
Oppn at 3-4 [DE 59]; State Oppn at 3 [DE 65]. Defendants contentions are incorrectbut
even under a heightened standard Plaintiffs are entitled to a preliminary injunction.

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A. The Mandatory/Prohibitory Distinction Does Not Apply to Constitutional
Claims

The distinction regarding mandatory versus prohibitory injunctions is not relevant for
claims of constitutional deprivation. The Fourth Circuit has upheld preliminary injunctions
striking laws that violate constitutional rights without regard to whether the injunction is
mandatory or prohibitive. See, e.g., Newsom, 354 F.3d at 261 (granting preliminary
injunction striking school district dress code as overbroad in violation of First Amendment);
Giovani Carandola, 303 F.3d at 521 (granting preliminary injunction striking state regulation
banning erotic and sexual expression as overbroad in violation of First Amendment); Eisenberg
v. Montgomery Cnty. Pub. Schs., 197 F.3d 123 (4th Cir. 1999), cert. denied, 529 U.S. 1019
(2000) (granting preliminary injunction requiring a school district to admit a white student to a
magnet school and striking school district policy using race as a factor in admissions decisions as
violating the equal protection clause). These courts considered district court decisions on
motions for preliminary injunctions seeking, like here, to halt the enforcement of state laws on
the grounds that the laws caused a deprivation of constitutional rights. In none of these cases did
the Fourth Circuit consider whether the mandatory nature of the injunctions sought by
Plaintiffs impacted the courts standard of review or the ultimate decision; the court simply
applied the familiar four-factor test. See Newsom, 354 F.3d at 254-255; Giovani Carandola, 303
F.3d at 511; Eisenberg, 197 F.3d at 128.
Defendants cite only one case that applies a heightened test for mandatory injunctions to
constitutional claims, and that involved a particularly intrusive type of mandatory injunction
often known as a structural injunction. In Taylor v. Freeman, 34 F.3d 266 (4th Cir. 1994), the
Fourth Circuit vacated a preliminary injunction ordering sweeping prescriptive structural reforms
to a state prison to address Eighth Amendment claims. However, Taylor relied heavily on the
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well-established principle that federal courts are not to immerse themselves in the
management of state prisons or substitute their judgment for that of trained penological
authorities charged with the administration of such facilities. Id. at 268. The injunction
Plaintiffs seek here does not require reorganization or reform of any State agency, and is
therefore not comparable to Taylor.
B. The Relief Plaintiffs Seek is Prohibitory, Not Mandatory
Defendants in any case are wrong that Plaintiffs seek a mandatory injunction.
Plaintiffs seek to prohibit enforcement of laws that threaten Clergy Plaintiffs in performing
same-sex marriage ceremonies and thus threaten Plaintiff Couples from access to such rites, and
further seek to bar discrimination against same-sex couples wishing to marry. The injunction
they seek is the very essence of prohibitory. The examples Defendants point to as mandatory
injunctions all involve judicial mandates requiring affirmative government conduct specific to
plaintiffs in those cases. See Hampton Oppn at 4 [DE 59]; Riddick Oppn at 4-5 [DE 58]. For
example, Defendants cite cases in which courts have characterized as mandatory injunctions
ordering dramatic restructuring of a state prison, Taylor, 34 F.3d at 269-270; requiring a railroad
to continue service on a rail line, Interstate Commerce Commn v. Baltimore and Annapolis R.R.
Co., 64 F.R.D. 337, 343 (D. Md. 1974); and transferring a prisoner to another facility, Wetzel v.
Edwards, 635 F.2d 283, 286 (4th Cir. 1980); see also East Tenn. Natural Gas Co. v. Sage, 361
F.3d 808, 830 (4th Cir. 2004) (characterizing as mandatory an injunction granting a gas
company the right to acquire privately held easements to build a gas line).
Here, in contrast, the preliminary injunction Plaintiffs seek requires no administrative
restructuring, no second guessing of administrative prerogatives, and no seizure or transfer of
property. Plaintiffs merely seek to stop (1) the threat of criminal enforcement and civil liability
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for performance of wedding ceremonies in violation of the First Amendment, and (2) the States
ongoing exclusion of same-sex couples from the same marriage rights enjoyed by opposite-sex
couples in violation of the Fourteenth Amendment.
C. Impact on the Status Quo Is Not Relevant to Considering Preliminary
Injunctions to Address Constitutional Deprivations

Defendants also assert that injunctive relief is disfavored where injunctive relief would
disturb the status quo. See State Oppn at 3 [DE 65]; Hampton Oppn at 3 [DE 59]. One court
considering a preliminary injunction to bar enforcement of a same-sex marriage ban recently
rejected that very argument, concluding that keeping tradition and history intact is not a
justification for the infringement of an individuals rights. De Leon v. Perry, 975 F. Supp. 2d
632, 665 (W.D. Tex. 2014). Indeed, preservation of the status quo is not an end in itself but is a
means to stop irreparable injury. As the Fifth Circuit has explained:
If the currently existing status quo is itself causing one of the
parties irreparable injury, it is necessary to alter the situation so as
to prevent the injury, either by returning to the last uncontested
status quo between the parties, by the issuance of a mandatory
injunction, or by allowing the parties to take proposed action that
will minimize the irreparable injury. The focus always must be on
prevention of injury by a proper order, not merely on preservation
of the status quo.
Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). Here, the injury
resulting from the States discrimination against same-sex couples befalls Plaintiffs, and an
injunction is necessary to relieve that injury. Defendants have identified no material harm that
would befall them or the public by enjoining this discrimination.
Moreover, as noted, the Fourth Circuit typically does not treat the impact on the status
quo as a relevant factor in considering motions for preliminary injunction that address
constitutional claims. Eisenberg is particularly instructive and parallel here. In Eisenberg, the
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Fourth Circuit Court of Appeals ordered a school district to admit a white student to a magnet
program and invalidated a school district policy for considering race in violation of equal
protection principles without regard to disturbing the status quo. See 197 F.3d at 123. Just like
this case, enjoining unconstitutional discrimination required a change in the status quo, which
was no bar to a preliminary injunction. See generally Newsom, 354 F.3d 252 (granting
preliminary injunction of school district dress code as overbroad in violation of First Amendment
without reference to whether the injunction would disturb the status quo); Giovani Carandola,
303 F.3d 507 (granting preliminary injunction of state regulation banning erotic and sexual
expression as overbroad in violation of First Amendment, without reference to whether the
injunction would disturb the status quo).
Defendants provide no authority supporting the opposite position. In U.S. Airways, Inc.
v. U.S. Airline Pilots Assn, 813 F. Supp. 2d 710, 735 (W.D.N.C. 2011), the court granted a
preliminary injunction to stop a work slow-down by a pilots union in violation of the Railway
Labor Act. Defendants selectively quote from this casePreliminary injunctions are an
extraordinary remedy whose primary function is to protect the status quo, Hampton Oppn at 3
(citing U.S. Airways, 813 F. Supp. 2d at 735) [DE 59]while critically omitting the rest of the
holding: and to prevent irreparable harm during the pendency of a lawsuit. U.S. Airways, 813
F. Supp. 2d at 735 (emphasis added). Defendants thus misleadingly suggest that the focus of a
preliminary injunction is simply on preserving the status quo, whereas that inquiry is actually
aimed at preventing irreparable injury. Plaintiffs seek this preliminary injunction precisely for
the purpose of preventing further irreparable harm during the pendency of the lawsuit.
The other cases Defendants cite similarly do not apply the status quo test to
constitutional claims. See University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)
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(remanding determination of whether a university needed to pay for interpretive services found
to be required under the Rehabilitation Act, following an injunction issued by the district court);
AttorneyFirst, LLC v. Ascension Entmt, Inc., 144 Fed. Appx 283, 287 (4th Cir. 2005) (citing
Camenisch for the proposition that preliminary injunctions are typically granted based on less
complete evidence and procedures than a full trial); Dominion Video Satellite, Inc., v. Echostar
Satellite Corp., 269 F.3d 1149, 1154-55 (10th Cir. 2001) (upholding a preliminary injunction in a
dispute between a satellite television company and a broadcaster over contract terms); Tanner
Motor Livery, Ltd. v. Avis, Inc., 316 F. 2d 804, 808-09 (9th Cir. 1963) (denying preliminary
injunction in a trademark dispute); Bell Atlantic Bus. Sys. Serv. v. Hitachi Data Sys. Corp., 856
F. Supp. 524, 525 (N.D. Cal. 1993) (denying preliminary injunction in an antitrust dispute
between computer service companies over access to certain information).
2

While these cases vary in many respects, none of them support the proposition
Defendants advancethat Plaintiffs face an additional burden when protecting their
constitutional rights requires changing the status quo. In a case of unconstitutional
discrimination, a preliminary injunction is appropriate.
D. A Preliminary Injunction is Not Disfavored Because it May Grant Relief
Similar to the Relief Sought at Trial
Finally, Defendants assert that a preliminary injunction should be denied where granting
it would provide all of the relief the moving party could obtain at trial. See Hampton Oppn at 3.
[DE 59]. Again, the authority Defendants cite does not support this position, and instead

2
One Fourth Circuit decision has collapsed the issues of mandatory injunctions and disturbing
the status quo into a single inquiry, holding that the distinction between a mandatory and
prohibitive injunction is based on whether the injunction would disturb the status quo. See
Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013). However, that case did not address the
irreparable harm from a violation of constitutional rights and so is inapplicable here.
19

supports Plaintiffs case for a preliminary injunction. In Dominion Video Satellite, one of the
key cases cited by Defendants, the U.S. Court of Appeals for the Tenth Circuit explained that a
preliminary injunction that grants substantially all the relief sought should be disfavored only
if it would render a trial on the merits largely or completely meaningless, which the court of
appeals in turn defined as where the effect of the order, once complied with, cannot be undone.
Dominion Video Satellite, 269 F.3d at 1156 (internal citations and quotations omitted). Here,
any preliminary relief granted to Plaintiffs can be readily undone at trial by a simple lifting of
the injunction. Clergy would have to stop performing same-sex weddings and same-sex
weddings would no longer be recognized as legally valid. There is consequently no basis to use
this doctrine as a reason to deny a preliminary injunction.
The other authority Defendants cite is similarly inapt. The passage from Wetzel that
Defendants cite, that a preliminary injunction may not be availed of to secure a piecemeal trial,
applies to appellate review of an interlocutory challenge to a district courts denial of a
preliminary injunction. See Wetzel, 635 F.2d at 286. Wetzel in turn cites to Meiselman v.
Paramount Film Distrib. Corp., 180 F. 2d 94 (4th Cir. 1950), which likewise holds that [i]t is
well settled that an application for interlocutory injunction may not be availed of to secure a
piecemeal trial nor as a means whereby an opinion as to the applicable law may be extracted
from the appellate court in advance of final hearing. Id. at 96 (emphasis added). Defendants
also cite to Crawford v. University of North Carolina, 440 F.Supp. 1047 (M.D.N.C. 1977), for
this same proposition, but Crawford asserts explicitly that the test [for a preliminary injunction]
is still one of balancing the competing interests. Id. at 1058. These cases obviously are
irrelevant to this Courts consideration of the injunction Plaintiffs seek, which is not
interlocutory.
20

Accordingly, none of the issues Defendants raisewhether the injunction Plaintiffs seek
is mandatory or prohibitive, whether the injunction will disturb the status quo, or whether the
injunction confers relief equivalent to the relief sought at trialalters the nature of this Courts
review where, like here, Plaintiffs seek a preliminary injunction to stop ongoing violations of
constitutional rights. The applicable test for a preliminary injunction is, and remains, the well
established four-factor test, which Plaintiffs readily meet.
E. Plaintiffs Satisfy Even the Heightened Standard for a Mandatory Injunction
Even if a heightened review standard applies (and it does not), Plaintiffs have met this
standard. Observing that whether a preliminary injunction would be mandatory or prohibitory
can be blurry, the Fourth Circuit has emphasized that the four-factor test remains the same
even for mandatory injunctions. See Rum Creek Coal Sales, Inc., v. Caperton, 926 F.2d 353, 360
(4th Cir. 1991), overruled on other grounds by Real Truth About Obama v. Federal Election
Commn, 575 F.3d 342 (4th Cir. 2009). Even where applying the four factors is subjected to a
heightened standard, relief may be granted where the exigencies of the situation demand such
relief. See East Tenn. Natural Gas Co., 361 F.3d at 828 (granting mandatory preliminary
injunction authorizing natural gas company to acquire easements to build a gas line).
As described above, Plaintiffs have demonstrated an overwhelming likelihood of success
on the merits. Plaintiffs are suffering ongoing deprivations of their constitutional rights, a loss
which the Supreme Court has stated unquestionably constitutes irreparable injury. See El-rod
v. Burns, 427 U.S. 347, 373 (1976). Defendants have identified no real harm to Defendants or
harm to the public from granting the injunction, and there would be none. Accordingly, the
balance of equities heavily favors Plaintiffs, and preliminary injunctive relief should be granted
even under the more searching review required in the case of a mandatory injunction.
21

III. Conclusion
For all of the above-stated reasons, the Court should grant Plaintiffs motion for a
preliminary injunction.

Dated: June 20, 2014

Jonathan S. Martel
David J. Weiner
Samuel Witten
Sarah E. Warlick
Thomas A. Glazer
Arnold & Porter LLP
555 Twelfth Street, N.W.
Washington, D.C. 20004
Phone: (202) 942-5470
Fax: (202) 942-5999
Email: jonathan.martel@aporter.com
Admitted Pro Hac Vice

Jeremy C. Karpatkin
555 Twelfth Street, N.W.
Washington, D.C. 20004
Phone: (202) 942-5564
Fax: (202) 942-5999
Pro Hac Vice Application Forthcoming

Sean Morris
Arnold & Porter LLP
777 South Figueroa St.
Los Angeles, CA 90017
Phone: (213) 243-4222
Email: sean.morris@aporter.com
Admitted Pro Hac Vice

Respectfully submitted,

/s/ S. Luke Largess
S. Luke Largess
/s/ Jacob H. Sussman
Jacob Sussman
/s/ John W. Gresham
John W. Gresham
Tin Fulton Walker & Owen
301 East Park Avenue
Charlotte, NC 28203
Phone: (704) 338-1220
Fax: (704) 338-1312
Email: llargess@tinfulton.com
Email: jsussman@tinfulton.com
Email: jgresham@tinfulton.com

Mark Kleinschmidt
312 West Franklin Street
Chapel Hill NC 27516
Phone: (919) 240-7089
Fax: (919) 240-7822
Email: mkleinschmidt@tinfulton.com

ATTORNEYS FOR PLAINTIFFS

22

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Amended Complaint with the
Clerk of the Court using the CM/ECF system, which will send notification of such filing to all
counsel of record.

/s/ Jacob H. Sussman
Jacob H. Sussman
301 East Park Avenue
Charlotte, NC 28203
Phone: (704) 338-1220
Fax: (704) 338-1312
Email: jsussman@tinfulton.com

EXHIBIT A

FEDERAL COURT RULINGS

1. December 20,
2013
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013),
appeal docketed, No. 13-4178 (10th Cir. Dec. 20, 2013)
2. December 23,
2013
Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio
2013), appeal docketed, No. 14-3057 (6th Cir. Jan. 22, 2014)
3. January 14, 2014 Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252
(N.D. Okla. 2014), appeal docketed, No. 14-5006 (10th Cir.
Jan. 27, 2014)
4. February 12, 2014 Bourke v. Beshear, No. 3:13CV750H, 2014 WL 556729
(W.D. Ky. 2014), appeal docketed, No. 14-5291 (6th Cir.
Mar. 19, 2014)
5. February 13, 2014 Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014), appeal
docketed, No. 14-1169 (4th Cir. Feb. 25, 2014)
6. February 21, 2014 Lee v. Orr, No. 13-CV-8719, 2014 WL 683680 (N.D. Ill.
2014)
7. February 26, 2014 De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014),
appeal docketed, No. 14-50196 (5th Cir. Mar. 1, 2014)
8. March 14, 2014 Tanco v. Haslam, 3:13-CV-01159, 2014 WL 997525 (M.D.
Tenn. 2014), appeal docketed, No. 14-5297 (6th Cir. Mar. 19,
2014)
9. March 21, 2014 DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014),
appeal docketed, No. 14-1341 (6th Cir. Mar. 21, 2014)
10. April 14, 2014 Henry v. Himes, 1:14-CV-129, 2014 WL 1418395 (S.D.
Ohio), appeal docketed, No. 14-3464 (6th Cir. May 9, 2014)
11. May 8, 2014 Baskin v. Bogan, 1:14-CV-00355-RLY-TAB, 2014 WL
1814064 (S.D. Ind. 2014), appeal docketed, No. 14-2037 (7th
Cir. May 8, 2014)
12. May 13, 2014 Latta v. Otter, 1:13-CV-00482-CWD, 2014 WL 1909999 (D.
Idaho 2014), appeal docketed, No. 14-35421 (9th Cir. May
14, 2014)
13. May 19, 2014 Geiger v. Kitzhaber, 6:13-CV-01834-MC, 6:13-CV-02256-
MC, 2014 WL 2054264 (D. Or. 2014)
14. May 19, 2014 Evans v. Utah, 2:14-CV-55-DAK, 2014 WL 2048343 (D.
Utah 2014), appeal docketed, No. 14-4060 (10
th
Cir. June 4,
2014)
Case 3:14-cv-00213-RJC-DCK Document 71-1 Filed 06/20/14 Page 1 of 3

15. May 20, 2014 Whitewood v. Wolf, 1:13-CV-1861, 2014 WL 2058105 (M.D.
Pa. 2014)
16. June 6, 2014 Wolf v. Walker, 14-CV-64-BBC, 2014 WL 2558444 (W.D.
Wis. 2014), appeal docketed, No. 14-2266 (7th Cir. June 9,
2014)


STATE COURT RULINGS
1. September 27,
2013
Garden State Equality v. Dow, 434 N.J. Super. 163, Superior
Court of New Jersey, Law Division, Mercer County
2. December 19,
2013
Griego v. Oliver, 316 P.3d 865, Supreme Court of New
Mexico
3. May 9, 2014 Wright v. Arkansas, 60-CV-13-2662, In the Circuit Court of
Pulaski County, Arkansas, Second Division, appeal docketed,
No. CV-14-414 (dismissed for lack of jurisdiction) & No.
CV-14-427 (Arkansas Supreme Court May 15, 2014)


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