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Case No.: 14-1341 __________________________________________________________________ In the United States Court of Appeals for the Sixth Circuit APRIL DEBOER, et. al., Plaintiffs/Appellees, v. RICHARD SNYDER, et. al., Defendants/Appellants. __________________________________________________________________ On Appeal from the United States District Court for the Eastern District of Michigan, Southern Division Hon. Judge Bernard Friedman __________________________________________________________________ MOTION TO INTERVENE MOTION FOR EXPEDITED REVIEW NOW COMES Erin Blankenship and Shayla Blankenship, by and through the LAW OFFICES OF GREGORY T. GIBBS, and in support of their motion to intervene and for expedited review state as follows:

1.

Intervenors Erin and Shayla Blankenship are a committed, married same-sex

couple residing in Genesee County, Michigan. See generally Ex. A-Affidavit of

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Erin Blankenship; Affidavit of Shayla Blankenship. 2. Intervenors have lived together as domestic partners for over a decade, and

together raise two minor children. See generally id . They have known each other for nearly two decades, and decided to raise children together in 2006, after having a commitment ceremony in Flint, Michigan, one month before the passage of the Michigan Marriage Amendment (MMA) at issue in this case. 3. In 2007, Erin Blankenship changed her legal name so that the son she gave

birth to would share Shayla Blankenships surname as well. Aff. Erin Blankenship, 17. Their first child was born about a month later. Id at 18. 4. In November of 2012, the Blankenships made contact with a woman who

was considering placing her unborn child up for adoption. Aff. Erin Blankenship at 19. Together, they accompanied the birth mother to her doctors appointments and left the hospital as a family when their daughter was born and placed in the care of Shayla. Id at 20-23; Aff. Shayla Blankenship at 18-22. Although their family is not recognized by the State of Michigan as worthy of recognition and equal status, they raise their children together. 5. In August, 2013, Intevenors married in the State of New York, following the

decision of the United States Supreme Court in the case of United States v. Windsor, 133 S. Ct. 2675; 186 L. Ed. 2d 808 (2013). See Ex. B-Marriage

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Certificate. 6. On October 2, 2013, Shayla Blankenships adoption of the newest addition

to the Blankenship family was finalized. 7. The judgment and order that form the subject of this appeal were issued on

Friday, March 21, 2014. The emergency request for a stay was filed the same day, and the temporary stay was issued the following day. The request for a stay was granted by this Court the following week. 8. Following the decision in the instant case, the Blankenships had prepared the

paperwork to process a second parent adoption of their children. However, they were told by court staff that the adoption petitions would not be accepted because of the stay issued by this Court. 9. Subsequent to the filing of the Notice of Appeal in this case, this Court

issued an expedited briefing schedule. The State of Michigan has also moved for premature consideration of these issues en banc. 10. Defendants, speaking on behalf of the State of Michigan, including

Defendant Governor Rick Snyder, refuses to recognize valid out-of-state marriages because of the stay. 11. Pursuant to Fed. R. App. Pro. 24(a), the Blankenships move to intervene as

of right. Alternatively, they seek permissive intervention pursuant to Fed. R. Civ.

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Pro. 24(b). 12. Intervention is timely. There is a single test for timeliness under Rule 24

that encompasses mandatory and permissive intervention. See United States v. City of Detroit, 712 F.3d 925 (2013). 13. It is worth noting that the time to file an appeal has yet to pass in this matter.

See 28 U.S.C. 1291; Fed. R. App. Pro 4(a)(1)(A)(thirty days). This factor weighs strongly in favor of the timeliness of intervention. Cf. Houston Gen. Ins. Co. v. Moore, 193 F.3d 838 (4th Cir. 1999)(intervention untimely when motion to intervene filed after expiration of thirty day appeal period). Because the opening briefs need not be filed, and because the Blankenships are not requesting any extension of time, there is no prejudice from granting intervention. 14. Intervenors have a substantial and constitutionally protected legal interest in

remaining married. Before the adoption of Michigans anti-gay laws on marriage recognition, the State of Michigan recognized all marriages that were performed outside of its jurisdiction unless those marriages violated some firm public policy that was codified by statute. See generally In re Miller's Estate, 239 Mich. 455, 214 N.W. 428 (1927). No Michigan statute prohibited recognition of marriages between same-sex couples performed in other jurisdictions or the issuance of marriage licenses to same-sex couples until 1996, when the Michigan legislature

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passed Public Act 324. The act amended four sections of Michigans laws to invalidate all marriages between same-sex couples. See Mich. Comp. Law Sec 551.1, 551.2, 551.3 and 551.4. A related enactment, Public Act 334 of 1996, addressed marriages performed outside of Michigan and provided that such marriages were invalid in this state regardless of whether the marriage is contracted according to the laws of another jurisdiction. Mich. Comp. Law 551.272. 15. At the time that Michigans marriage laws were changed to demean same-sex

couples, no state recognized same-sex marriages. Accordingly, there was no opportunity to test the constitutionality of Michigans refusal to recognize out-ofstate same-sex marriages. Before the passage of Michigans marriage amendment, however, Michigans equal protection clause was construed as being coextensive with the Equal Protection Clause of the Fourteenth Amendment. See Harvey v. State, 469 Mich. 1; 664 N.W.2d 767 (2003). Indeed, Michigans continuing criminalization of relationships between gay men under the states gross indecency statute was justified by one justice on the basis of the United States Supreme Courts interpretation of the federal due process and equal protection clauses. See People v. Lint, 465 Mich. 851; 629 N.W.2d (2001)(citing Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986)(Corrigan, C.J.,

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dissenting). 16. The reasoning behind Justice Corrigans dissent in Lint would be invalid

today, however, given the intervening decisions of the United States Supreme Court. Similarly, in the absence of the states marriage amendment, the equal protection clause of the Michigan constitution would be harmonized with more recent decisions invalidating the federal Defense of Marriage Act. Compare Nat'l Pride at Work, Inc. v. Governor of Mich., 274 Mich. App. 147; 732 N.W.2d 139 (2007) with United States v. Windsor, 133 S. Ct. 2675; 186 L. Ed. 2d 808 (2013). In Windsor, the Supreme Court held that Section 3 of the federal Defense of Marriage Act is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. Id at 2695. The liberty interest identified by the Court was the prohibition against denying to any person the equal protection of the laws. Id (citing Bolling v. Sharpe, 347 U.S. 497, 499-500; 74 S. Ct. 693 (1954) and Adarand Constructors, Inc. v. Pea , 515 U.S. 200, 217-218, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995)). 17. Harmonizing Windsor with Michigan Supreme Court precedent, it is clear that

the decision rendering the MMA unconstitutional removed any remaining barriers to the recognition of the Blankenships marriage under state law. The decisions cited by the Supreme Court in Windsor, including the pinpoint citations, crystalize this

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inescapable conclusion. In Bolling , the Court recognized that the Equal Protection clause was a more explicit safeguard of prohibited unfairness than the Due Process Clause. See Bolling , supra at 499. The citation to Adarand Constructors also clarifies that the Windsor Court was interpreting the protections of the Due Process Clause as at least providing the same protection that would be afforded by the Equal Protection Clause of the Fourteenth Amendment. See Adarand Constructors Inc, 515 U.S. at 217-218 (recognizing that cases decided after 1964 continued to treat the equal protection obligations imposed by the Fifth and the Fourteenth Amendments as indistinguishable.). Because the marriage amendment was necessarily harmonized with the states equal protection clause, the invalidation of the former realigns the latter with the Equal Protection Clause of the 14 th Amendment and the Due Process Clause of the Fifth Amendment. See Windsor, supra at 2695 (While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.). This renders any statutory impediments null and void.1 This is the position that the State of Michigan took last month in oral arguments before this Court en banc. According to the state attorney general, a courts declaration that a law is unconstitutional means that in that circumstance, the law was never valid and is considered void ab initio. See City of Pontiac Retired
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18.

Because of the stay imposed in this case, however, the Blankenships and

similarly-situated same-sex couples married out of state are prohibited from jointly adopting their children or having the state recognize them as equal parents. They are also denied all other benefits and obligation that follow from recognition of their existing marriages. 19. The right to marry also includes the right to remain married, one that is

secured by the Due Process Clause. See Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013). Just as Windsor established that the federal government has no power to invalidate a lawful marriage for federal purposes, Obergefell and similar cases establish that the states do not have roving and unrestricted power to render a valid marriage null and void without establishing a sufficiently compelling reason. Yet this is precisely what the Attorney General hopes to accomplish by enforcing the stay in this case and, presumably, through the application of any adverse decision to later cases involving the recogniton of valid out-of-state marriages. 20. Although the Blankenships must establish that their legal interests will be

impaired in the absence of intervention, this Court has recognized that their burden is a minimal one. See Michigan State v. Miller, 103 F.3d 1240, 1247 (6th Cir.

Employees v. Schimmel, et. al., Case No. 12-2087, Doc. No. 006111941849, Supplemental Brief of Intervenor State of Michigan dated January 21, 2014, p. 23 (citing Stanton v. Lloyd Hammond Produce Farms, 400 Mich. 135, 14445 (1977).
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1997). Accordingly, it is sufficient that the movant[] prove that representation may be inadequate. Id (emphasis added). Potential inadquacy includes, for example, the possible stare decisis effects of precedential decisions. Id (citing Linton v. Commissioner of Health & Env't, 973 F.2d 1311, 1319 (6th Cir. 1992)). 21. Currently, there are two basic parties to this litigation: the Plaintiffs, a

committed lesbian couple who are not married under the laws of any State but wish to get married, and the State of Michgan defendants, who wish to prevent them from getting married and also want to prevent the state from recognizing the existing marriages of same-sex couples in Michigan. The first party cannot adequately protect the interests of couples who hold valid, out-of-state marriage licenses, and the second party will not protect those interests even if they had the ability to do so. 22. The intervenors do not doubt that counsel for Plaintiffs will adequately protect

the interests of unmarried same-sex couples in Michigan who want to get married.2 However, they are not in a position to adequately protect the interests of Michigan's married same-sex couples who obtained their licenses from neighboring jurisdictions. The objective of these married same-sex couples, including the Blankenships, is protection of actually existing marriages, while the ultimate objective of unmarried couples is securing the ability to procure marriage licenses

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from the State of Michigan. Because there is no identity of interests, there is no presumption of adequate representation. Cf. Wisconsin Educ. Ass'n Council v. Walker, 705 F.3d 640, 659 (7th Cir. 2013). 23. Even if there was a presumption in place, and even if intervenors shared the

same ultimate goal that Plaintiffs have, the presumption can be overcome by demonstrating that the intervenors will present different arguments than those that will be put forward by Plaintiffs or that the intervenors have different objectives at this stage of litigation . See Michigan State AFL-CIO, supra , 103 F.3d at 1247-1248. For example, while the Blankenships and most married same-sex couples believe that the State of Michigan should issue licenses to same-sex couples, they do not have standing to argue that the State of Michigan should issue those licenses to them. Cf. Bishop v. United States ex rel. Holder, 04-CV-848-TCK-TLW, 2014 U.S. Dist. LEXIS 4374, 2014 WL 116013, at *9 (N.D. Okla. Jan. 14, 2014). Nevertheless, the Blankenships and their children suffer from the stigmatic and concrete harm brought about by non-recognition and, importantly for purposes of this motion, the stigmatic and concrete harm that will be brought about by the stay request sought by the State of Michigan and the potentially adverse consequences of a decision that upholds Michigan's anti-gay laws. Moreover, they have already been denied the

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opportunity to present these concerns before the District Court.3 24. This situation is exacerbated by this Court's consideration of the recognition

issue outside of the Michigan context, including the expedited appeals from Ohio, Kentucky and Tennessee. The procedural posture of these cases is extremely significant; for example, the case of Tanco v. Haslam , 2014 U.S. Dist. LEXIS 33463 (M.D. Tenn. Mar. 14, 2014) is on appeal following the District Court's entry of a preliminary injunction barring further enforcement of Tennesee's so-called "recognition" statutes. There was no discussion of Tennessee's approach to the recognition (or lack thereof) of so-called "evasive" marriages that circumvent application of state law. By contrast, the procedural posture of Bourke v. Beshear, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky. Feb. 12, 2014), is an appeal from a final judgment challenging, inter alia, application of Ky. Rev. Stat. Ann. sec. 402.045, which both prohibits recognition of valid same-sex marriages that occur in any other jurisdiction and also renders "[a]ny rights granted by virtue of the marriage, or its termination...unenforceable in Kentucky courts." Id . While the decision of the District Court in Obergefell v. Wymyslo , 962 F. Supp. 2d 968 (S.D. Ohio 2013) addresses many of the distinct issues that Intervenors plan to raise, the state statutory

The imposition of the stay by this Court prevented the Blankenships from moving to intervene to argue these issues before the District Court, which is a factor that weighs in favor of intervention on appeal.
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language of the anti-recognition laws is different and in many respects more far reaching than the language found in Michigan's statutes, while the language found in Michigan's constitutional amendment is broader than the language in Ohio's constitutional amendment. Compare Ohio Const. art. XV, 11 ("This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.") with Mich. Const. Art. I, 25 (" ...the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose."). 25. Judicial construction of these amendments confirms that the Michigan state

constitutional prohibition of recognition is far more significant and far-reaching than the Ohio constitutional prohibition. Compare State v. Carswell, 114 Ohio St. 3d 210, 871 N.E.2d 547 (2007)(... the second sentence of the amendment means that the state cannot create or recognize a legal status for unmarried persons that bears all of the attributes of marriage ...)(emphasis added) and Cleveland Taxpayers for Ohio Constitution v. City of Cleveland , 2010 Ohio 4685, 2010 Ohio App. LEXIS 3981 (Ohio Ct. App., Cuyahoga County Sept. 30, 2010) (amendment does not prohibit domestic partnership benefits) with Nat'l Pride at Work, Inc. v. Governor of Mich ., 481 Mich 56, 748 NW2d 524, 2008 Mich LEXIS 915 (2008) (MMA

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prohibits domestic partnership benefits). 26. Because Michigans far-reaching prohibition of family recognition is secured

in the state constitution, these differences have the strong potential to be outcomedeterminative based on this Courts holding in the case of Equality Found. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997). In Equality Found II, this Court held that the low level of government at which [an anti-gay law] becomes operative is significant because the opponents of that strictly local enactment need not undertake the monumental political task of procuring an amendment to the state constitution. Id at 297. This is also consistent with other cases decided by the Supreme Court and the Sixth Circuit that address state constitutional provisions that erect unusual barriers to the political decisionmaking process for minority groups. Cf. Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th. Cir. 2006); Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 701 F.3d 466 (6th Cir. 2012). 27. The only other parties to these proceedings represent the State of Michigan,

and are completely hostile to the interests of the Blankenships and similarly situated couples. Indeed, there is every indication that the continuing refusal to recognize these valid, existing marriages is the direct result of animus, an inference that is supported by Michigans unusually hostile legal landscape for lesbians and gay

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men.4 This hostility finds expression at virtually all levels of government and is even reflected in the decisions of Michigans nonpartisan judiciary. The Michigan Supreme Court, for example, has embraced an unusually expansive construction of the marriage amendment at issue in this case, finding that it precluded the extension of health care coverage to public employees if their spouses were the same gender. See Nat'l Pride at Work, Inc. v. Governor of Mich., 481 Mich. 56; 748 N.W.2d 524 (2008). In that decision, the Michigan Supreme Court also refused to review an intermediate appeals court that refused to extend basic equal protection principles to discrimination on the basis of sexual orientation. See id ; see also Nat'l Pride at Work, Inc. v. Governor of Mich., 274 Mich. App. 147; 732 N.W.2d 139 (2007). 28. Michigans courts do not create the hostile legal atmosphere, but they do

reflect the animus exhibited by the State of Michigan, including its legislature. For example, Michigan does not prohibit anti-gay discrimination in the private marketplace, although it does extend other unusual protections to people on the basis of categories not included in analogous federal legislation, including weight. See Although the State of Michigan parties claim that they are motivated not by animus but by a mere desire to uphold the law, this is at least arguably inconsistent with their recent decisions to refuse to enforce other laws that federal District Courts declared unconstitutional, including a law that was signed by Defendant Snyder. See Platinum Sports v. Snyder, 715 F.3d 615 (6th. Cir. 2013). It is also arguably inconsistent with the States decision to use taxpayer money to present expert testimony in support of a study that the lower court in this case deemed little more than an example of politically motivated junk science.
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generally Barbour v. Dep't of Social Services, 198 Mich. App. 183; 497 N.W.2d 216 (1993). More recently, the Michigan legislature passed legislation, supported and defended by the defendants in this case, that supplemented the challenged constitutional provision by making it impossible for public employees in same-sex relationships, and only public employees in same-sex relationships, to obtain domestic partnership benefits. As the District Court hearing the challenge to that statute noted, [t]he unavoidable conclusion is that [the statute] contains a discriminatory classification on the basis of sexual orientation. Bassett v. Snyder, 951 F. Supp. 2d 939 (E.D. Mich. 2013). 29. In light of the hostility to married same-sex couples that finds expression

under Michigan law, and the differences in legal arguments that would be advanced in support of the Blankenships, when compared to those that would be advanced in support of the existing plaintiffs, there is a strong basis for intervention under Rule 24's liberal standards. Couples with valid, existing marriage licenses deserve adequate representation in these proceedings. 30. For the foregoing reasons, the Blankenships have satisfied the requirements

for intervention under Rule 24. MOTION FOR EXPEDITED REVIEW 31. Pursuant to Sixth Circuit Rule 27(c), and for the reasons set forth above, the

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Blankenships request that this Court grant expedited review of their Motion to Intervene as they have demonstrated good cause as to why the motion should receive expedited review. CONCLUSION WHEREFORE, for the reasons set forth above, the Blankenships request that this Court GRANT their Motion to Intervene pursuant to Fed. R. Civ. P. 24(a) or (b), so that they may adequately protect their interests on appeal.

Respectfully submitted,

/s/ Alec Scott Gibbs (P73593) Law Offices of Gregory T. Gibbs 717 South Grand Traverse Street Flint, MI 48502 Attorneys for Proposed Intervening Plaintiffs

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PROOF OF SERVICE I certify that on April 21, 2014, the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.

/s/ Alec Scott Gibbs (P73593) Law Offices of Gregory T. Gibbs 717 South Grand Traverse Street Flint, MI 48502 Attorneys for Proposed Intervening Plaintiffs

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Appearance of Counsel
Sixth Circuit Case No.:
14-1341

Case Name: April DeBoer, et. al

vs. Richard Snyder, et. al.

Clients or Clients Name(s): (List all clients on this form, do not file a separate appearance form for each client.)
Erin Blankenship Shayla Blankenship

G Appellant G Appellee

G Petitioner G Respondent

G Amicus Curiae  Intervenor G

G Criminal Justice Act

(Appointed)

Lead counsel must be designated if a party is represented by more than one attorney or law  firm. Check if you are lead counsel. G Name: Alec Scott Gibbs Signature: /s/ Alec Scott Gibbs Firm Name: Law Offices of Gregory T. Gibbs Business Address: 717 South Grand Traverse Street Suite: City/State/Zip: Flint/MI/48502 Telephone Number (Area Code): (810) 239-9470 Email Address: gibbsale@gmail.com Admitted: 7/27/2012
(Sixth Circuit admission date only)

CERTIFICATE OF SERVICE

I certify that on 4/21/2014 the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record. s/

Alec Scott Gibbs

6ca-68
6/12