Case 3:14-cv-00818-CWR-LRA Document 28 Filed 11/11/14 Page 1 of 15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CAMPAIGN FOR SOUTHERN
EQUALITY; REBECCA BICKETT;
ANDREA SANDERS; JOCELYN
PRITCHETT; and CARLA WEBB,
Plaintiffs,
vs.
PHIL BRYANT, in his official capacity as
Governor of the State of Mississippi; JIM
HOOD, in his official capacity as
Mississippi Attorney General; and
BARBARA DUNN, in her official capacity
as Hinds County Circuit Clerk,
Defendants.

CIVIL ACTION
NO. 3:14-cv-00818-CWR-LRA

MEMORANDUM OF LAW OPPOSING

DEFENDANTS MOTION FOR STAY PENDING APPEAL

MCDUFF & BYRD

PAUL, WEISS, RIFKIND, WHARTON &

GARRISON LLP

767 North Congress Street

Jackson, Mississippi 39202
(601) 969-0802

1285 Avenue of the Americas

New York, New York 10019
(212) 373-3000

Attorneys for Plaintiffs

Case 3:14-cv-00818-CWR-LRA Document 28 Filed 11/11/14 Page 2 of 15

PRELIMINARY STATEMENT
Defendants should not be granted the extraordinary remedy of a stay pending appeal for
the same reason that Plaintiffs motion for a preliminary injunction should be granted: Plaintiffs
have shown a significant likelihood of success on the merits, while Defendants have not.
Since Windsor, over forty federal district courts and four circuit courts have held that the
U.S. Constitution requires that gay people be allowed to marry;1 only one federal circuit court
and two district courts have held to the contrary.2 The Supreme Court has denied appeals in all
seven cases that were before it, instantly making marriage the law of the land in another large
swath of the country.3 Today, nearly 59% of the U.S. population lives in states where gay people
can marry.4 Gay and lesbian Mississippians remain among the shrinking minority of Americans

Latta v. Otter, No. 14-35420, 2014 WL 5151633 (9th Cir. Oct. 15, 2014); Baskin v. Bogan, 766 F.3d 648 (7th
Cir. 2014); Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.
2014); Marie v. Moser, No. 14-2518 (D. Kan. Nov. 4, 2014); Guzzo et al. v. Mead et al., No. 14-CV-200, 2014
WL 5317797 (D. Wyo. Oct. 17, 2014); Hamby v. Parnell, No. 3:14-CV-00089, 2014 WL 5089399 (D. Alaska
Oct. 12, 2014); General Synod of the United Church of Christ v. Resinger, No. 3:14-CV-00213, 2014 WL
5092288 (W.D.N.C. Oct. 10, 2014); DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014); Brenner v.
Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014); Bowling v. Pence, No. 1:14-CV-00405, 2014 WL 4104814 (S.D.
Ind. Aug. 19, 2014); Burns v. Hickenlooper, No. 14-CV-01817, 2014 WL 3634834 (D. Colo. July 23, 2014);
Love v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky. 2014); Baskin v. Bogan, No: 1:14-CV-00355, 2014 WL
2884868 (S.D. Ind. June 25, 2014), Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014); Whitewood v. Wolf,
992 F. Supp. 2d 410 (M.D. Pa. 2014); Evans v. Utah, No. 2:14-CV-55, 2014 WL 2048343 (D. Utah May 19,
2014); Geiger v. Kitzhaber, 994 F. Supp. 2d 1128 (D. Or. 2014); Latta v. Otter, No. 1:13-CV-00482-CWD,
2014 WL 1909999 (D. Idaho May 13, 2014), Baskin v. Bogan, No. 1:14-CV-00355, 2014 WL 1568884 (S.D.
Ind. Apr. 18, 2014); Henry v. Himes, No. 1:14-CV-129, 2014 WL 1568884 (S.D. Ohio Apr. 14, 2014); Bourke
v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky. 2014); Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525
(M.D. Tenn. Mar. 14, 2014); Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014); De Leon v. Perry, 975 F.
Supp. 2d 632 (W.D. Tex. 2014); Bishop v. United States ex rel. Holder, 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); Lee v. Orr, No. 13-CV-8719, 2013 WL 6490577 (N.D. Ill. Dec. 10, 2013); Gray v. Orr, 4 F.
Supp. 3d 984 (N.D. Ill. 2013); Cozen OConnor, P.C. v. Tobits, No. 11-0045, 2013 WL 3878688 (E.D. Pa. July
29, 2013); Cooper-Harris v. United States, 965 F. Supp. 2d 1139 (C.D. Cal. 2013); Obergefell v. Kasich, No.
1:13-CV-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013); Bassett v. Snyder, 951 F. Supp. 2d 939 (E.D.
Mich. 2013).
DeBoer v. Snyder, No. 14-1341, 2014 WL 5748990 (6th Cir. Nov. 6, 2014); Conde-Vidal v. Garcia-Padilla,
No. 14-cv-1253, 2014 WL 5361987 (D.P.R. Oct. 21, 2014); Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D.
La. 2014).
Herbert v. Kitchen, 135 S. Ct. 265 (2014); Smith v. Bishop, 135 S. Ct. 271 (2014); Rainey v. Bostic, 135 S. Ct.
286 (2014); Schaefer v. Bostic, 135 S. Ct. 308 (2014); McQuigg v. Bostic, 135 S. Ct. 314 (2014); Bogan v.
Baskin, 135 S. Ct. 316 (2014); Walker v. Wolf, 135 S. Ct. 316 (2014).
See States, Freedom to Marry (Nov. 6, 2014), http://www.freedomtomarry.org/states/.

Case 3:14-cv-00818-CWR-LRA Document 28 Filed 11/11/14 Page 3 of 15

denied their rights under the Equal Protection and Due Process Clauses of the Fourteenth
Amendment.
Because the standards for issuing a stay pending appeal under Fed. R. Civ. P. 62 are
stringent, the showing must be particularly compelling. See, e.g., Charles Alan Wright, et al., 11
Fed. Prac. & Proc. 2904, at 50305 & nn. 12 & 13 (2d ed. 1995). By virtue of their
contingent motion, Defendants appear to be anticipating that this Court will enjoin
enforcement of Mississippis gay marriage ban. If this Court does indeed grant Plaintiffs a
preliminary injunctionas required by the law and facts of this caseit will necessarily have
already made the determination that Plaintiffs have shown both a substantial likelihood of
success on the merits and irreparable harm. Such a determination strongly militates against the
issuance of any stay pending appeal.
While some district courts have stayed their decisions invalidating discriminatory state
laws that prohibit gay marriage in the past,5 few have done so recently.6 As the Ninth Circuit
observed, the landscape changed considerably on Monday, October 6, [when] the Supreme
Court denied certiorari and vacated stays in all seven of the same-sex marriage cases that were
pending before it. . . . allow[ing] marriages to proceed in fourteen states across the nation. Latta
v. Otter, Nos. 14-35420, 14-35421, 2014 WL 5151633, at *23 (9th Cir. Oct. 15, 2014). The
Supreme Court was aware that there were cases pending in other circuit courts that had not yet
been decided but that might subsequently create a conflict. The existence of those pending
5

See, e.g., Bowling v. Pence, No. 1:14-CV-00405, 2014 WL 4104814 (S.D. Ind. Aug. 19, 2014); Burns v.
Hickenlooper, No. 14-CV-01817, 2014 WL 3634834 (D. Colo. July 23, 2014); Bostic v. Rainey, 970 F. Supp.
2d 456 (E.D. Va. 2014).
See Majors v. Horne, No. 2:14-CV-00518 JWS, 2014 WL 5286743 (D. Ariz. Oct. 17, 2014); Hamby v. Parnell
No. 3:14-CV-00089, 2014 WL 5089399 (D. Alaska Oct. 12, 2014); General Synod of the United Church of
Christ v. Resinger, No. 3:14-CV-00213, 2014 WL 5092288 (W.D.N.C. Oct. 10, 2014); DeBoer v. Snyder, 973
F. Supp. 2d 757 (E.D. Mich. 2014); Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014); Geiger v.
Kitzhaber, 994 F. Supp. 2d 1128 (D. Or. 2014); cf. Marie v. Moser, No. 14-cv-02518, slip op. at 38 (D. Kan.
Nov. 4, 2014) (granting seven-day stay); Guzzo et al. v. Mead et al., No. 14-CV-200, 2014 WL 5317797
(D. Wyo. Oct. 17, 2014) (granting six-day stay).

Case 3:14-cv-00818-CWR-LRA Document 28 Filed 11/11/14 Page 4 of 15

cases, and the possibility of a future conflict, did not affect the Courts decision to permit the
marriages to proceed[.] Id. at *2. The fact that the Supreme Court allowed gay couples
marriages to proceed in a number of statesdespite the fact that the Supreme Court itself has not
yet ruled on the constitutionality of gay marriagesuggests that stays are no longer appropriate
when discriminatory laws prohibiting gay marriage are invalidated.
Moreover, while issuing a stay would benefit no one, it would surely cause grievous harm
to the Plaintiffs. While Defendants argue that a preliminary injunction will create
administrative difficulties for the State of Mississippi, alleviating an administrative burden
cannot counterbalance the significant constitutional rights that are at stake. Further, that
possibility (assuming it is realistic) cannot possibly outweigh the substantial, concrete injuries
suffered every single day by the gay citizens of Mississippi. By arguing only in broad strokes
and abstract generalities, the State seeks to divert the Courts attention from the real people at the
center of this case: Becky Bickett, Andrea Sanders, Joce Pritchett, and Carla Webb. Any
unnecessary delay will continue to expose them and their families to continued insecurity,
vulnerability, and stigma. A stay is an intrusion into the ordinary processes of administration
and judicial review, and accordingly is not a matter of right, even if irreparable injury might
otherwise result to the appellant. Nken v. Holder, 556 U.S. 418, 427 (2009).
STANDARD OF REVIEW
[T]he stay of an equitable order is an extraordinary device, which should be sparingly
granted because it interrupts the ordinary process of judicial review and postpones relief for
the prevailing party. United States v. State of Tex., 523 F. Supp. 703, 729 (E.D. Tex. 1981). In
determining whether to grant a discretionary stay pending appeal under Fed. R. Civ. P. 62, courts
within the Fifth Circuit apply a standard substantially similar to the standard for a preliminary

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injunction under Fed. R. Civ. P. 65: (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) [whether] the public interest [favors a stay]. Weingarten Realty
Investors v. Miller, 661 F.3d 904, 910 (5th Cir. 2011) (alterations in original). The movant for a
stay pending appeal carries the burden to satisfy the four factors, . . . and it is not entitled to the
stay as a matter of right. Moore v. Tangipahoa Parish Sch. Bd., 507 F. Appx 389, 392 (5th
Cir. 2013).
Nor are the factors equal: likelihood of success on the merits and a showing that the
movant will otherwise suffer irreparable harm are the most critical. Id. Accordingly, the
grant of a stay of a preliminary injunction pending appeal will almost always be logically
inconsistent with a prior finding of irreparable harm that is imminent as required to sustain the
same preliminary injunction. Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 235 (2d
Cir. 1999). See also Millennium Pipeline Co., LLC v. Certain Permanent & Temp. Easements in
(No Number) Thayer Rd., S.B.L. No. 63.00-1-24.1, Town of Erin, Cnty. of Chemung, New York,
812 F. Supp. 2d 273, 275 (W.D.N.Y. 2011) ([L]ogic dictates that a court will seldom issue an
order or judgment and then turn around and grant a stay pending appeal, finding, in part, that the
party seeking the stay is likely to prevail on appeal, i.e., that it is likely that the court erred in
issuing the underlying order or judgment.).
I.

The State Has Failed to Make A Strong Showing on the Merits

In order to obtain a stay of a preliminary injunction, a party must make a strong showing

that [they are] likely to succeed on the merits. Weingarten Realty Investors, 661 F.3d at 910.
To support this aspect of their motion, Defendants simply reiterate the arguments from their
opposition brief.
4

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As Plaintiffs have amply demonstrated in their moving papers, however, nearly all recent
precedent supports Plaintiffs position. See Weingarten Realty Investors, 661 F.3d 9 at 10
(regarding likelihood of success on the merits, appellant is at a disadvantage because the district
court has already ruled against him.). Rather than engage in duplicative legal arguments,
Plaintiffs rely on their moving papers for the preliminary injunction to rebut Defendants claims
as to the parties respective likelihoods of success. (See Pl. Mem. Prel. Inj. at 521.) Indeed, the
fact that Defendants here seek a stay pending appealeven before the Court has rendered its
decisionarguably reflects Defendants realistic assessment of the respective merits of the
parties arguments.
II.

The State Has Failed to Make a Strong Showing That It Will Suffer Irreparable
Harm in the Absence of a Stay
Defendants claim that Mississippi will suffer[] irreparable harm should a stay of the

courts decision invalidating Mississippis discriminatory laws not be granted. (Def. Mem. at
11.) But Defendants offer no proof in support of their ostensible claim of irreparable injury.
Instead, Defendants resort to (1) a claim of per se irreparable harm based on the invalidation of
state laws that represent the will of the overwhelming majority of Mississippians, and
(2) describing the administrative inconvenience to Mississippi if it were compelled to grant the
marriages of gay people alongside those of straight people. (Id. at 1113.) However, neither of
these arguments is sufficient to support Defendants claim of irreparable harm.
First, Mississippis argument that invalidating state law somehow constitutes per se
irreparable harm ignores the fact that Mississippi can have no legitimate interest in enforcing an
unconstitutional law. Here, if this Court issues a preliminary injunction pursuant to Fed. R. Civ.
P. 65, it will necessarily have already decided that there is a substantial likelihood that the
Mississippi laws at issue are unconstitutional. But a state is in no way harmed by an issuance of

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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. Giovani
Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) (internal quotations and citations
omitted). See also City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (It
is plain that the electorate as a whole, whether by referendum or otherwise, could not order
[government] action violative of the Equal Protection Clause, and the [government] may not
avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the
body politic) (quotations omitted); Baskin v. Bogan, 766 F.3d 648, 671 (7th Cir. 2014)
(Minorities trampled on by the democratic process have recourse to the courts; the recourse is
called constitutional law.).
Second, the fact that Mississippi will purportedly suffer administrative inconvenience if it
is forced to vindicate Plaintiffs constitutional rights cannot constitute irreparable harm either. It
is not even clear how such administrative action, in terms of the issuance of marriage certificates,
licensing, etc., would rise to the level of irreparable injury in any event. See Henderson v.
Stalder, 281 F. Supp. 2d 866, 877 (E.D. La. 2003) (denying states request for stay and finding
insufficient the argument made by the State[] that there is irreparable harm to the State and the
harm to the public interest because the efficient administration of Louisianas vehicle
registration license tax is being disrupted.). Indeed, so far, since Windsor, no fewer than twenty
states have managed to do what was necessary to vindicate the equal rights of their gay citizens
in marriage without breaking the bank in terms of the state budget or collapsing from the burden
of administrative inconvenience.
While the State of Mississippi complains that confusion, delays, and disruption of other
services would occur if the circuit clerks are commanded to issue same-sex marriage licenses

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without time to prepare, (Def. Mem. at 12), it was Mississippis refusal to recognize Plaintiffs
fundamental right to marry that created the need for this lawsuit in the first place. Having
deprived Plaintiffs of their constitutional rights, the State of Mississippi cannot now claim that it
would require a substantial investment of time, money, and effort, (Id. at 13), to treat Plaintiffs
equally under the laws. See United States v. State of Tex., 523 F. Supp. 703, 729 (E.D. Tex.
1981) ([T]he moving party contended that the administrative burden of implementing relief
outweighed the need for immediate vindication of the constitutional rights of school children
affected by unlawful discrimination . . . [but] the value of the constitutional rights to be protected
(in such circumstances) far outweighs administrative costs that might be incurred in formulating
a remedy. (quoting Reed v. Rhodes, 549 F.2d 1050, 1052 (6th Cir. 1976))); United States v.
State of La., 815 F. Supp. 947, 954 (E.D. La. 1993) (denying request for stay because [t]he
evidence must show something more than mere financial and administrative difficulties. This is
especially true here where the constitutional violations are well documented and long-standing . .
. . [T]he financial and administrative costs that are involved in the early portions of the
implementation are not, in the Courts view, oppressive. In the absence of oppression, the state
defendants cannot realistically argue that the effects of implementation rise to a level of
irreparable injury.) (emphasis in original).
Indeed, even if this Court were to find that Mississippi would somehow suffer some
realistic modicum of administrative inconvenience, the significant harm Mississippis marriage
laws impose on Plaintiffs, other gay and lesbian Mississippians, and the many children in the
State who have gay and lesbian parents clearly outweighs any harm to the State. Thus, to
paraphrase the Ninth Circuit, the plaintiffs and countless gay and lesbian [Mississippians]
would face irreparable injury were we to permit the stay to continue in effect [because

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Mississippis] marriage laws . . . impose profound legal, financial, social and psychic harms on
numerous citizens of [Mississippi]. Latta, 2014 WL 5151633 at *3 (internal citations and
quotation marks omitted).
III.

The State Has Failed to Make a Strong Showing That Plaintiffs Would Not Be
Substantially Injured By a Stay
Defendants effectively concede that they have no legitimate response to Plaintiffs

argument that [e]very day that marriage is denied to gay couples in Mississippi deprives
Plaintiffs of their constitutional rights and causes them to suffer irreparable harm. (Def. Mem.
at 13 (quoting Pl. Mem. Prel. Inj. at 5).) Indeed, Defendants admit, as they must, that a stay
would harm Plaintiffs, although they suggest that only a minimal harm . . . would result from a
short continued delay. (Id. at 15.) However, the fact is that the Plaintiffs in this case and
thousands of other gay citizens of Mississippi struggle on a daily basis to live in a society that
does not legally recognize their families or their relationships. Gay and lesbian partners may not
be able to visit their loved ones in a hospital, or even to pick up their children from school if they
are not the official parent in the eyes of the law. Defendants rhetoric cannot overcome this
harsh reality.
Defendants actually have the chutzpah to suggest that Plaintiffs could encounter
substantial problems, confusion, uncertainty, and heartaches that would result from on-again,
off-again same-sex marital status in the future if this Courts ruling is overturned on appeal.
(Id. at 17.) Such an approach is fundamentally disrespectful not only to Plaintiffs (who are fully
capable of articulating their own self-interest), but to the Constitution itself. If Defendants are
truly concerned about this problem, the State should simply decline to appeal. Indeed, several

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states have adopted this approach in similar circumstances.7 Such a decision would obviously
avoid the confusion hypothesized by the State since Plaintiffs and other gay citizens of
Mississippi would then be free to marry.
IV.

The State Has Failed to Make a Strong Showing That Violating Constitutional
Rights Is In the Public Interest
"It is always in the public interest to prevent the violation of a partys constitutional

rights. Jackson Womens Health Org. v. Currier, 760 F.3d 448, 458 n.9 (5th Cir. 2014)
(quoting Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012)). In the face of this obvious
black letter principle, the State advances three nebulous public interests that purportedly
enable Mississippi to continue violating the constitutional rights of its citizens indefinitely:
(1) an interest in the stability of marriage laws, (2) a desire that Mississippi not be singled
out, and (3) a desire to cling to the status quo until this issue is ultimately and finally
resolved. (Def. Mem. at 17, 2021.) However, not one of these alleged public interests
(which are really no more than arguments for delay) outweighs the critical public interest of
respecting the Constitution.

Kate Zernike & Marc Santora, As Gays Wed in New Jersey, Christie Ends Court Fight, N.Y. TIMES, Oct. 22,
2013, at A1 (noting that New Jersey Governor Chris Christie would not appeal gay marriage ruling); Oregon:
Attorney General Wont Defend Ban on Gay Marriage, N.Y. TIMES, Feb. 21, 2014, at A15 (quoting Oregon
Attorney General Ellen Rosenblum: It is now clear that there is no rational basis for Oregon to refuse to honor
commitments made by same-sex couples); Trip Gabriel, Pennsylvania Governor Wont Fight Ruling That
Allows Gay Marriage, N.Y. TIMES, May 22, 2014 at A16 (quoting Pennsylvania Governor Tom Corbett as not
appealing in part because the case is extremely unlikely to succeed on appeal.); NC Attorney General Wont
Defend Gay Marriage Ban Following Va. Ruling, WJLA.com (July 28, 2014, 7:03 PM), http://www.wjla.com/
articles/2014/07/nc-attorney-general-won-t-defend-gay-marriage-ban-following-va-ruling-105530.html (North
Carolina Attorney General Roy Cooper announced that the state would no longer defend its marriage ban);
Attorney General Patrick Morrisey Says His Office Will Respect U.S. Supreme Court Decision, Office of the
West Virginia Attorney General (Oct. 9, 2014), http://www.ago.wv.gov/pressroom/2014/Pages/AttorneyGeneral-Patrick-Morrisey-Says-His-Office-Will-Respect-U.S.-Supreme-Court-Decision.aspx (stating In the
upcoming days, we will now seek to bring to a close the pending litigation over West Virginias marriage laws,
consistent with the Fourth Circuits now-binding decision.); Attorney General Tom Horne Will Not Appeal
Same-Sex Marriage Ruling, Office of the Arizona Attorney General (Oct. 17, 2014), https://www.azag.gov/
press-release/attorney-general-tom-horne-will-not-appeal-same-sex-marriage-ruling (I have decided not to
appeal todays decision, which would be an exercise in futility, and which would serve only the purpose of
wasting taxpayers money.).

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First, the State cannot deny that protecting constitutional rights always constitutes a
paramount public interest. See Currier, 760 F.3d at 458 n.9; see also Opulent Life Church v.
City of Holly Springs, Miss., 697 F.3d 279, 298 (5th Cir. 2012) (Injunctions protecting
constitutional rights are always in the public interest.); Newsom ex rel. Newsom v. Albemarle
Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) ([U]pholding constitutional rights serves the
public interest.); Robinson Rubber Prods. Co., Inc. v. Hennepin Cnty., 927 F. Supp. 343, 348
(D. Minn. 1996) ([T]he public interest favors the enforcement of the United States Constitution.
This factor weighs against a stay.).
Surely, Defendants would not contend that Virginias interest in the stability of its
marriage laws banning interracial marriage was somehow more important than the Lovings
constitutional rights. See Loving v. Virginia, 388 U.S. 1 (1967). Defendants argument for
marital stability is particularly unpersuasive since maintaining the marital status quo actually
results in significant legal instability for gay and lesbian Mississippians. (Pl. Mem. Prel. Inj. at
2125.) Again, if Defendants are truly concerned about protect[ing] same-sex couples from
harm as a result of uncertainty about the status of their marriages, they could simply decline to
appeal and thereby themselves ensur[e] that same-sex marriages carry the same weight and
finality that attend opposite-sex marriage. (Def. Mem. at 1718.)
Second, the State of Mississippi invokes the cases from Louisiana and Texas currently
pending appeal before the Fifth Circuit, arguing that Mississippi should not be singled out as the
only state in the Fifth Circuit required to permit and recognize same-sex marriages, when the
courts have maintained the status quo in Texas and Louisiana. (Id. at 20.)
But a comparison with those cases in neighboring states does not help the States
argument here. In Texas, the State had filed an unopposed motion for a stay before any decision

10

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on gay marriage was rendered by an appellate court; additionally, that stay was granted before
the widely recognized sea change in the law following the Supreme Courts denial of petitions
for certiorari from the Fourth, Seventh, and Tenth Circuits on October 6, 2014. See Herbert, 135
S. Ct. at 265; Smith, 135 S. Ct. at 271; Rainey, 135 S. Ct. at 286; Schaefer, 135 S. Ct. at 308;
McQuigg, 135 S. Ct. at 314; Bogan, 135 S. Ct. at 316; and Walker, 135 S. Ct. at 316. And the
court in Louisianacontrary to every other federal district court within the continental United
Statesheld that gay marriage was not required by the Constitution, and so the question of a
stay never arose. See Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014). Here, by
contrast, Mississippis desire to avoid being singled out is not a reason to continue to violate
the Constitution.
Third and finally, the State argues that it should be forced to stop violating the rights of
its gay citizens only when this issue is ultimately and finally resolved by the Supreme Court.
(Def. Mem. at 21.) Defendants would have Plaintiffs constitutional rights continue to be
violated for an indeterminate period of time until when (and if) the Supreme Courtwhich has
not yet granted certiorari for any pending gay marriage appealissues a binding decision. When
it denied certiorari petitions from the Fourth, Seventh, and Tenth Circuits, the Supreme Court
obviously understood what the implications of that action would be, including marriages taking
places in states like Utah, Oklahoma, North Carolina, and Virginia. By Defendants logic, no
lower federal court could ever issue injunctive relief in any case unless and until all appeals had
been exhausted, including even certiorari petitions to the Supreme Court. The State of
Mississippi does not cite any authority for this proposition because there is none.

11

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CONCLUSION
The State has failed to satisfy the high burden necessary to support issuance of a stay
pending appeal. For all of the foregoing reasons, Plaintiffs respectfully request that the Court
deny the States Contingent Motion for a Stay Pending Appeal and issue an immediately
effective preliminary injunction. In the alternative, should the Court grant the States Contingent
Motion, Plaintiffs respectfully request that the Court grant only a temporary stay for no more
than seven (7) days to enable Defendants to seek a stay from the Fifth Circuit.

12

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Dated: November 11, 2014

PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP

MCDUFF & BYRD

By: _/s/Roberta A. Kaplan____

Roberta A. Kaplan*
Lead Counsel
Andrew J. Ehrlich*
Jaren Janghorbani*
Joshua D. Kaye*
Warren Stramiello*
Jacob H. Hupart*
1285 Avenue of the Americas
New York, NY 10019-6064
Tel: (212) 373-3000
Fax: (212) 757-3990
rkaplan@paulweiss.com
aehrlich@paulweiss.com
jjanghorbani@paulweiss.com
jkaye@paulweiss.com
wstramiello@paulweiss.com
jhupart@paulweiss.com

By: _/s/Robert B. McDuff__

Robert B. McDuff
Bar No. 2532
Sibyl C. Byrd
Bar No. 100601
Jacob W. Howard
Bar No 103256
767 North Congress Street
Jackson, Mississippi 39202
Tel: (601) 969-0802
Fax: (601) 969-0804
rbm@mcdufflaw.com
scb@mcdufflaw.com
SILIN & ELLIS
Rita Nahlik Silin
Bar No. 102662
Dianne Herman Ellis
Bar No. 102893
1161 Robinson Avenue
Ocean Springs, Mississippi 39564
Tel: (228) 215-0037
Fax: (228) 284-1889
diannernjd@aol.com
rsilin@gmail.com

WALTON LAW OFFICE

Diane E. Walton*
168 S. Liberty Street
Asheville, NC 28801
Tel: (828) 255-1963
Fax: (828) 255-1968
diane@waltonlawoffice.com
*Admitted pro hac vice
Attorneys for Plaintiffs Campaign for
Southern Equality, Rebecca Bickett,
Andrea Sanders, Jocelyn Pritchett and
Carla Webb

13

Case 3:14-cv-00818-CWR-LRA Document 28 Filed 11/11/14 Page 15 of 15

CERTIFICATE OF SERVICE
I hereby certify that, on November 11, 2014, I electronically transmitted the
above and foregoing document to the Clerk of the Court using the ECF system for filing

By: _/s/Roberta A. Kaplan_

Roberta A. Kaplan
Admitted pro hac vice
1285 Avenue of the Americas
New York, NY 10019-6064
Tel: (212) 373-3000
Fax: (212) 757-3990
rkaplan@paulweiss.com