UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION


J AMES DOMER BRENNER, et al.,

Plaintiffs,

v.

RICK SCOTT, et al.,

Defendants.
____________________________________

SLOAN GRIMSLEY, et al.,

Plaintiffs,

v.

RICK SCOTT, et al.,

Defendants.
____________________________________


Case No. 4:14-cv-107-RH-CAS










Case No. 4:14-cv-138-RH-CAS

GRIMSLEY PLAINTIFFS RESPONSE TO
DEFENDANTS MOTION TO CONTINUE STAY PENDING APPEAL
Case 4:14-cv-00107-RH-CAS Document 93 Filed 10/28/14 Page 1 of 10
1

The Grimsley Plaintiffs (Plaintiffs) file this response to Defendants J oint Motion to
Continue Stay Pending Appeal and Opposition to Plaintiffs Motions to Lift Stay. (Brenner
Doc. 92) (hereinafter Motion).
1
In their motion, Defendants argue that the factors to be
considered in determining the need for a stay weigh in favor of the stay. Id. at 4-5 (citing factors
laid out in Nken v. Holder, 556 U.S. 418 (2009); Garcia-Mir v. Meese, 781 F.2d 1450 (11th Cir.
1986)). Plaintiffs respectfully submit that the four factors strongly support lifting the stay and
request that the Court do so in these consolidated cases.
A four-part test governs stays pending appeal: (1) whether the stay applicant has made a
strong showing that he is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the public interest lies. Hilton v.
Braunskill, 481 U.S. 770, 776 (1987), cited in Grimsley Doc. 23 (Order Denying the Motions to
Dismiss, Granting a Preliminary Injunction, and Temporarily Staying the Injunction) at 28.
Because [t]he four-part test closely tracks the four-part test governing issuance of a preliminary
injunction, Grimsley Doc. 23 at 28, and because the Court found in favor of Plaintiffs on each
requirement to establish a preliminary injunction, id. at 27, the Court has in essence already
found that Plaintiffs satisfy all four stay factors.
Despite this ruling, the Court nevertheless stayed the injunction, citing an interest in
implementing this decision just oncein not having, as some states have had, a decision that is
on-again, off-again. Id. at 28-29. But the legal landscape has changed dramatically since the

1
Although the styling of Defendants filing indicates that they are responding to the Brenner and
Grimsley Plaintiffs respective motions to lift the stays in these consolidated cases, the filing is
also labeled a motion, and thus Plaintiffs file this response without first seeking leave of the
Court.
Case 4:14-cv-00107-RH-CAS Document 93 Filed 10/28/14 Page 2 of 10
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Court issued the stay in August. The Supreme Court denied review of decisions of three circuit
courts of appeals striking down marriage exclusions in four states, thus dissolving the stays in
those cases and leaving those circuit court decisions as binding precedent to overturn marriage
exclusions in eleven states. See Grimsley Pls. Mot. to Lift Stay (Brenner Doc. 87) at 1.
Moreover, the Supreme Court has denied stays in marriage cases in which appeals were still
pending: it denied Idahos application for stay pending a petition for certiorari, Otter v. Latta,
No. 14A374, 2014 WL 5094190 (U.S. Oct. 10, 2014), and Alaskas application for a stay
pending appeal, Parnell v. Hamby, No. 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014).
2

These actions make clear that the Supreme Court no longer views the possible risk of reversal to
be a basis to stay an injunction in a marriage case.
I. Defendants have not made a strong showing that they are likely to succeed on
the merits.

This Court has already found that Defendants are not likely to succeed on the merits.
Defendants do not even attempt to argue a likelihood of success of the merits, let alone make a
strong showing. Instead, they assert that the other factors support a stay and that therefore they
need only show a substantial case on the merits. Motion at 6 (citing Garcia-Mir, 781 F.2d at
1492). But Garcia-Mir sanctioned this lesser showing only where the other factors weigh
heavily in favor of granting the stay, 781 F.2d at 1492 (emphasis added), which they do not in

2
For other recent decisions denying stays, see Gen. Synod of the United Church of Christ v.
Resinger, No. 3:14cv00213MOCDLH, 2014 WL 5092288 (W.D.N.C. Oct. 10, 2014) (no
stay); Hamby v. Parnell, No. 3:14cv00089TMB, 2014 WL 5089399, at *23 (D. Alaska Oct.
12, 2014) (injunction with no stay), Fisher-Borne v. Smith, Nos. 1:12CV589, 1:14CV299, 2014
WL 5138914 (M.D.N.C. Oct. 14, 2014) (injunction with no stay); Majors v. Horne, No. 2:14
cv00518 J WS, 2014 WL 5286743, at *1 (D. Ariz. Oct. 17, 2014) (A stay of this decision to
allow defendants to appeal is not warranted); Connolly v. Jeanes, No. 2:14cv00024, 2014
WL 5320642, at *1 (D. Ariz. Oct. 17, 2014) ([T]his court declines to stay the effect of this
order.); Guzzo v. Mead, No. 14CV200SWS, 2014 WL 317797, at *9 (D. Wyo. Oct. 17,
2014) (temporary stay of one week).
Case 4:14-cv-00107-RH-CAS Document 93 Filed 10/28/14 Page 3 of 10
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this case. For the reasons discussed below, all of the other factors strongly support denying
Defendants motion to continue the stay.
Even if that were not the case, Defendants case is far from substantial. Defendants
point to courts that have granted stays in marriage cases, Motion at 6-7, but those stays were all
issued prior to the Supreme Courts denial of petitions for certiorari in marriage cases. While it is
true that the denial of a writ of certiorari does not constitute an opinion on the merits of the case,
these denials of certiorari effectively overturned constitutional amendments banning marriage for
same-sex couples in eleven states in one day. Even if the denials are not considered to shed any
light on the Supreme Courts views on the merits of the constitutional questions involved, the
denials make clear that the Supreme Court no longer considers the possibility of reversal of an
injunction to be a basis for granting a stay in a marriage case.
Finally, Defendants suggest that their appeal presents a serious defense of Floridas law
because of the Eleventh Circuits holdings in Lofton v. Secy, Fla. Dept of Children & Family
Servs., 358 F.3d 804 (11th Cir. 2004), concerning suspect classification and fundamental rights.
Motion at 7. But Lofton preceded the Supreme Courts decision in United States v. Windsor, 133
S. Ct. 2675 (2013)upon which all of the courts striking down marriage bans since that decision
was issued have relied. In Windsor, the Supreme Court did not apply rational basis review to a
law that discriminated based on sexual orientation. Further, in Windsor, the Supreme Court held
that the federal Defense of Marriage Act violated plaintiffs rights to due process and equal
protection. Moreover, many of the courts that have struck down similar marriage exclusions did
so under ordinary rational basis review, concluding that the exclusion of same-sex couples from
marriage does not rationally further any of the state interests offered by Defendants. Thus, the
Lofton courts holdings cited by Defendants would not be a barrier to affirmance by the Eleventh
Case 4:14-cv-00107-RH-CAS Document 93 Filed 10/28/14 Page 4 of 10
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Circuit even in the absence of the Supreme Courts decision in Windsor. And of course the
question is not just whether Defendants would likely succeed at the Eleventh Circuit but also
whether they would likely ultimately succeed at the Supreme Court. There is no substantial
case on the merits.
II. Defendants have not shown that they will suffer irreparable injury if the stay
is lifted.

The only concrete harm Defendants claim would befall them absent a continuation of the
stay is a considerable risk of confusionreorienting whole systems to accommodate the
preliminary injunction while this appeal is pending, and potentially trying to undo that
reorientation if the injunction is reversed. Motion at 8. If the stay is lifted, it is true that the State
would need to make some administrative changes, including changes to various forms to allow
for two male or two female spouses. Even if it had to undo those changes in the event this
Courts decision were reversed on appeal,
3
that pales in comparison to the harm being done to
same-sex couples while the stay remains in place. See infra Part III. Moreover, it does not meet
the requirement of a showing that the applicant for a stay would be irreparably injured. Hilton,
481 U.S. at 776 (emphasis added); see also Belton v. Georgia, No. 1:10-CV-0583-RWS, 2013
WL 4551307, at *2 (N.D. Ga. Aug. 27, 2013) (where state defendants asserted they will
face irreparable injury if they spend funds and personnel time on implementing programs only to
have those sections of the Remedial Order set aside on appeal, court rejected a finding of
irreparable injury in part because the Court cannot justify delaying compliance with the
Remedial Order just because Defendants now claim there is a remote possibility that some
programs will be set aside on appeal) (docket citations omitted).

3
With respect to forms, there would be no need for the state to revert back to gendered forms
since gender-neutral forms could continue to be used for different-sex couples.
Case 4:14-cv-00107-RH-CAS Document 93 Filed 10/28/14 Page 5 of 10
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III. The harm that Plaintiffs and other same-sex couples would suffer if the stay
remains in effect far outweighs any harm to Defendants.

Every day that couples have to wait to marry or have their marriages recognized
profoundly affects Plaintiffs and other same-sex couples across the State. Plaintiffs and other
same-sex couples are subjected to irreparable harm every day they are forced to live without the
security that marriage provides. As they wait, children will be born, partners and spouses will
get sick, and some will die. Each day that passes, some people will pass away without ever
having been able to marry the person they love or to have their marriage recognized in their
home state, depriving their surviving spouse of important protections and dignity, as Plaintiff
Arlene Goldberg continues to experience.
Moreover, some of the protections marriage providessuch as the right to receive social
security benefits as a surviving spousehinge directly on the length of the marriage. Therefore,
by preventing couples who wish to marry now from doing so, a continued stay would have
irreparable consequences for many couples who will be denied benefits or receive significantly
diminished protections as a direct result of that delay.
Continuing the stay would also inflict irreparable injury on Plaintiffs and other same-sex
couples by exposing them, and their children, to continuing stigma. Windsor, 133 S. Ct. at 2694
(not recognizing the marriages of same-sex couples demeans them and humiliates their
children, making 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.). The consequences of such harms can never be undone.
IV. The public interest strongly weighs in favor of lifting the stay.
Case 4:14-cv-00107-RH-CAS Document 93 Filed 10/28/14 Page 6 of 10
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The vindication of constitutional rights furthers the public interest. See, e.g., Popham v.
City of Kennesaw, 820 F.2d 1570, 1580 (11th Cir. 1987). And the public is harmed when
families and children are deprived of the protections that marriage provides.
Defendants say a stay is in the public interest becausethey assertthe validity of
marriages entered into while appeal is pending would be uncertain should this Court be reversed.
Motion at 5. This is simply incorrect. Any marriages entered into in reliance on the courts
injunction would be valid regardless of the outcome of the appeal. See Evans v. Utah, --- F.
Supp. 2d ----, ----, Case No. 2:14CV55DAK, 2014 WL 2048343, at *17 (D. Utah May 19, 2014)
(holding that marriages entered into in Utah after district court entered injunction and prior to
stay issued by Supreme Court were valid), appeal withdrawn.
With respect to purported concern about stability of the law, the Supreme Court denied
stays of injunctions in marriage cases that were still pending on appeal and thus could be
reversed. Otter v. Latta, No. 14A374, 2014 WL 5094190 (U.S. Oct. 10, 2014); Parnell v.
Hamby, No. 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014). Now that the Supreme Court has
made clear that it does not deem the risk of reversal to be a basis to stay an injunction in
marriage cases, this Court should not continue the stay on that basis.
Defendants also purport to be concerned about same-sex couples rushing into marriages
without due deliberation before an appellate court enters a stay. Motion at 5. There is no basis for
such concern given that Plaintiffs have made clear that they have no objection to a temporary
stay to give Defendants an opportunity to appeal the lifting of the stay by this Court. See
Grimsley Pls. Mot. to Lift Stay (Brenner Doc. 87) at 4.
Defendants further claim an interest in uniformity of law throughout the state, arguing
that if a stay is issued, it would mean that marriage licenses would be issued for same-sex
Case 4:14-cv-00107-RH-CAS Document 93 Filed 10/28/14 Page 7 of 10
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couples only in Washington County, whose clerk is a named defendant in the Brenner case.
Motion at 5-6. That is not true. The Court held that the marriage exclusion violates the Due
Process and Equal Protection Clauses of the U.S. Constitution. When a state statute has been
ruled unconstitutional, state actors have an obligation to desist from enforcing that statute. Soto-
Lopez v. N.Y. City Civil Serv. Commn, 840 F.2d 162, 168 (2d Cir. 1988) (citing Cooper v.
Aaron, 358 U.S. 1, 17-18 (1958)); see also Harris v. McDonnell, No. 13-00077, 2013 WL
5720355, at *4 (W.D. Va. Oct. 18, 2013) (differences in the clerks named in separate lawsuits
challenging Virginias exclusion of same-sex couples from marriage are largely immaterial as a
declaratory judgment decision against any one of the state defendants [in either case] would be
binding as to all). Under Florida law, clerks of circuit court are charged with the duty of issuing
marriage licenses. 741.01, Fla. Stat. Thus, all clerks are state actors who are obligated to
follow a declaration that a provision of state law violates the United States Constitution.
4

Finally, Defendants argue that it is in the public interest to allow Floridas highest state
court an opportunity to review the issue of the constitutionality of Floridas marriage exclusion
before lifting the stay. Motion at 6. They offer no authority to support this as a basis to maintain
a stay, and there is none. Cf. Burns v. Hickenlooper, No. 14cv01817RMKLM, 2014 WL
3634834, at *5 n.3 (D. Colo. J uly 23, 2014) (in rejecting request to abstain in marriage litigation
to defer to state court litigation, federal court stated that it declines to abstain from deciding, and
thus to defer to the state, matters of federal constitutional law.). In any event a ruling from the

4
Even if that were not the case, lifting the stay would mean that same-sex couples could marry
in Washington County and the State would recognize the marriages of all Florida same-sex
couples who married in other states. Any interest the public has in uniformity of state laws
throughout the State is far outweighed by its interest in ending the deprivation of rights for all
married same-sex couples and those unmarried same-sex couples who would marry in
Washington County if the stay were lifted.
Case 4:14-cv-00107-RH-CAS Document 93 Filed 10/28/14 Page 8 of 10
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Florida Supreme Court upholding the marriage exclusion would not save the bans from being
struck down. See Maddox v. Williams, 855 F. Supp. 406, 413-14 (D.D.C. 1994) (Under [the
Supremacy Clause], Congress powers, as well as federal judicial actions in conformity with
federal law, override state court rulings and determinations in the event that there is a conflict.).
Moreover, it is unclear how long it will take for appeals to be concluded in this case or the state
court challenges to the marriage exclusion. Given the irreparable harm caused each day couples
are denied the ability to marry or have their marriages recognized, the stay should be lifted.
V. Only a short temporary stay is needed to allow Defendants time to seek relief
on appeal.

As Plaintiffs have said, if the court grants their motion to lift the stay, they have no
objection to postponing the lifting of the stay for 7 days to allow Defendants to take the issue up
on appeal. There is no need to make couples wait the 45 days requested by Defendants. The
Eleventh Circuit has dealt with stay requests in short order. See, e.g., Robles Antonio v. Barrios
Bello, No. 04-12794-GG, 2014 WL 1895123, at *1 (11th Cir. J une 10, 2004) (final ruling on stay
issued six days after request made). And to the extent the Eleventh Circuit believes it needs
additional time to consider the request, it may itself issue a further temporary stay. See, e.g., id.
(district court order entered J une 4; Eleventh Circuit issued temporary stay on same day);
Rodriguez v. Reno, 164 F.3d 575, 579 (11th Cir. 1999) (district court denied request for stay of
deportation on March 12; petitioner moved for emergency stay on March 13; J udge Tjoflat
temporarily stayed deportation on same day). As discussed above, every day that couples have to
wait to marry or have their marriages recognized could make a critical difference to them and
their families.
VI. Conclusion
Case 4:14-cv-00107-RH-CAS Document 93 Filed 10/28/14 Page 9 of 10
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For these reasons, Plaintiffs respectfully request that the Court lift the stays entered in
these consolidated cases.
Date: October 28, 2014
Certificate of Service: Today, I electronically filed this document with the Clerk of Court using
CM/ECF, which automatically serves all counsel of record via electronic transmission of Notices
of Electronic Filing generated by CM/ECF

Respectfully submitted,

/s/ Daniel B. Tilley
Daniel B. Tilley
Florida Bar No. 102882
ACLU Foundation of Florida
4500 Biscayne Blvd., Suite 340
Miami, FL 33137
(786) 363-2700
dtilley@aclufl.org

Maria Kayanan
Florida Bar No. 305601
ACLU Foundation of Florida
4500 Biscayne Blvd., Suite 340
Miami, FL 33137
(786) 363-2700
mkayanan@aclufl.org

ATTORNEYS FOR PLAINTIFFS


Stephen F. Rosenthal
Florida Bar No. 131458
Podhurst Orseck, P.A.
25 West Flagler Street, Suite 800
Miami, FL 33130
(305) 358-2800
srosenthal@podhurst.com

Leslie Cooper
ACLU Foundation
125 Broad Street, 18th Floor
New York, New York 10004
(212) 549-2627
LCooper@aclu.org




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