Case: 14-60837

Document: 00512851525

Page: 1

Date Filed: 11/28/2014

No. 14-60837

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA SANDERS;
JOCELYN PRITCHETT; and CARLA WEBB,
Plaintiffs-Appellees,

v.

PHIL BRYANT, in his official capacity as Governor of the State of Mississippi; and JIM
HOOD, in his official capacity as Mississippi Attorney General,
Defendants-Appellants,
On Appeal from the United States District Court for the
Southern District of Mississippi (Northern Division)
No. 3:14-cv-00818-CWR-LRA (Hon. Carlton Reeves)
Appellees Motion for Expedited Consideration
Roberta A. Kaplan
Joshua D. Kaye
Jacob H. Hupart
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, New York 10019
Telephone: (212) 373-3000
Facsimile: (212) 373-3990
rkaplan@paulweiss.com
jkaye@paulweiss.com
jhupart@paulweiss.com
Dale Carpenter
UNIVERSITY OF MINNESOTA
LAW SCHOOL
229 Nineteenth Ave S.
Minneapolis, MN 55455
Telephone: (612) 625-5537
Facsimile: (612) 625-2011
dalecarp@umn.edu

Robert B. McDuff
Sibyl C. Byrd
Jacob W. Howard
MCDUFF & BYRD
767 North Congress Street
Jackson, Mississippi 39202
Telephone: (601) 969-0802
Facsimile: (601) 969-0804
rbm@mcdufflaw.com
scb@mcdufflaw.com
Diane E. Walton
WALTON LAW OFFICE
168 S. Liberty Street
Asheville, NC 28801
Telephone: (828) 255-1963
Facsimile: (828) 255-1968
diane@waltonlawoffice.com

Attorneys for Plaintiffs-Appellees

Case: 14-60837

Document: 00512851525

Page: 2

Date Filed: 11/28/2014

No. 14-60837

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA SANDERS;
JOCELYN PRITCHETT; and CARLA WEBB,
Plaintiffs-Appellees,
v.
PHIL BRYANT, in his official capacity as Governor of the State of Mississippi; and JIM
HOOD, in his official capacity as Mississippi Attorney General,
Defendants-Appellants,
CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed

persons and entities as described in the fourth sentence of Rule 28.2.1 have an
interest in the outcome of the case. These representations are made in order that
the judges of this Court may evaluate possible disqualification or recusal.
1.

Campaign for Southern Equality, Plaintiff-Appellee. Campaign

for Southern Equality is a North Carolina non-profit corporation with no parent

corporation. No publicly held company owns ten percent or more of the Campaign
for Southern Equalitys stock.
2.

Rebecca Bickett, Andrea Sanders, Jocelyn Pritchett, and Carla

Webb, Plaintiffs-Appellees.
3.

Paul, Weiss, Rifkind, Wharton & Garrison LLP, Counsel for all

Plaintiffs-Appellees (Roberta A. Kaplan, Andrew A. Ehrlich, Jaren Janghorbani,

Joshua D. Kaye, Warren Stramiello, and Jacob H. Hupart representing).
i

Case: 14-60837

Document: 00512851525

Page: 3

Date Filed: 11/28/2014

4.

Dale Carpenter, Counsel for all Plaintiffs-Appellees.

5.

Walton Law Office, Counsel for all Plaintiffs-Appellees (Diane

E. Walton representing).
6.

McDuff & Byrd, Counsel for all Plaintiffs-Appellees (Robert B.

McDuff, Sibyl C. Byrd and Jacob W. Howard representing).

7.

Silin & Ellis, Counsel for all Plaintiffs-Appellees (Rita Nahlik

Silin and Dianne Herman Ellis representing).

8.

Phil Bryant, in his official capacity as the Governor of the State

of Mississippi, Defendant-Appellant.
9.

Jim Hood, in his official capacity as Mississippi Attorney

General, Defendant-Appellant.
10.

Barbara Dunn, in her official capacity as Hinds County Circuit

11.

Office of the Board Attorney for Hinds County, Counsel for

Clerk.

Barbara Dunn (Anthony R. Simon and Pieter Teewussen representing).

12.

Office of the Mississippi Attorney General, Counsel for

Defendant-Appellants Phil Bryant and Jim Hood (Justin L. Matheny and Paul E.
Barnes representing).

ii

Case: 14-60837

Document: 00512851525

Page: 4

Date Filed: 11/28/2014

Respectfully submitted,
/s/ Roberta A. Kaplan
Roberta A. Kaplan
Attorney of Record for Plaintiffs-Appellees

iii

Case: 14-60837

Document: 00512851525

Page: 5

Date Filed: 11/28/2014

Pursuant to Federal Rule of Appellate Procedure 27 and Fifth Circuit

Rules 27.5 and 34.5, Plaintiffs-Appellees Campaign for Southern Equality,
Rebecca Bickett, Andrea Sanders, Jocelyn Pritchett, and Carla Webb respectfully
submit this motion for entry of an order expediting the appeal from the
Memorandum Opinion and Order dated November 25, 2014, entered by the United
States District Court for the Southern District of Mississippi, in the matter
captioned Campaign for Southern Equality, et al. v. Phil Bryant, et al., No. 3:14
Civ. 818 (S.D. Miss.) (Reeves, J.). Plaintiffs-Appellees also request that this
appeal be heard by the same panel as, and consolidated for oral argument with,
Cleopatra De Leon, et al. v. Rick Perry, et al., No. 14-50196 (5th Cir.), and
Jonathan P. Robicheaux, et al., v. James D. Caldwell, et al., No. 14-31037 (5th
Cir.).
1.

Under this Courts rules, actions for temporary or preliminary

injunctive relief are entitled to calendaring priority. 5th Cir. Rule 47.7(4). This
rule is a reflection of the fact that plaintiffs in such cases, as here, have alleged that
they are suffering ongoing and irreparable harms while they await the ultimate
resolution of their claims. Prompt decision of such cases is critical. Accordingly,
Plaintiffs-Appellees respectfully request that this Court expedite its consideration
of this appeal and schedule it for oral argument and disposition along with two
similar matters pending before this Court: Cleopatra De Leon, et al. v. Rick Perry,

Case: 14-60837

Document: 00512851525

Page: 6

Date Filed: 11/28/2014

et al., No. 14-50196 (5th Cir.), and Jonathan P. Robicheaux, et al. v. James D.
Caldwell, et al., No. 14-31037 (5th Cir.). In both De Leon and Robicheaux, oral
arguments have been calendared for the morning of January 9, 2015, before the
same panel.
2.

Pursuant to Fifth Circuit Rule 27.5, this Court will expedite an

appeal upon good cause, which is surely present here. The principal issue in this
appeal is whether same-sex marriage bans violate the United States Constitution.
Memorandum Opinion and Order at 2, Campaign for Southern Equality v. Bryant,
No. 3:14 Civ. 818, Dkt. No. 30 (S.D. Miss. Nov. 25, 2014) (the Opinion).
Presently, Mississippi bars gay couples from marrying and refuses to recognize
lawful same-sex marriages conducted elsewhere, causing them irreparable harm
through daily interference with the exercise of their constitutional rights. Straight
couples face no such discrimination or burden.
3.

On November 25, 2014, Judge Reeves agreed with De Leon

and held that same-sex couples and the children they raise are equal before the
law. The State of Mississippi cannot deny them the marriage rights and
responsibilities it holds out to opposite-sex couples and their children.
Mississippis statute and constitutional amendment violate the Fourteenth
Amendment to the United States Constitution. Opinion at 71. The District Court
found that such laws are unconstitutional under both the Due Process and Equal

Case: 14-60837

Document: 00512851525

Page: 7

Date Filed: 11/28/2014

Protection Clauses of the Fourteenth Amendment, id. at 4, and that each of the four
factors courts look to in determining whether to issue a stay pending appeal
militated in favor of denying a stay. Id. at 67-69. A fourteen day stay was
nevertheless entered so that the State will have time to present its arguments to
the Fifth Circuit. Id. at 71. Defendants-Appellants Bryant and Hood timely filed
a Notice of Appeal and an Opposed Emergency Motion to Stay Effect of
Preliminary Injunction Pending Appeal the very next day, on November 26, 2014,
both before 2:30 p.m.. See Fed. R. App. P. 4(a)(1)(A).
4.

Defendants-Appellants motion for a stay pending appeal

militates strongly in favor of expediting the briefing, argument, and, ultimately,

resolution of that appeal. See, e.g., 1 Fed. Appellate Prac. Guide Ninth Cir. 2d
6:12 (2013) (Motions for . . . a stay . . . pending appeal also should request
expedited consideration of the appeal on the merits.); NML Capital Ltd. v.
Republic of Argentina, No. 02 Civ. 2507, 2005 WL 743086, at *5 (S.D.N.Y.
Mar. 31, 2005) (The stay is conditioned on as prompt as possible appeal and a
motion for an expedited appeal.), affd sub nom. EM Ltd. v. Republic of
Argentina, 131 F. Appx 745 (2d Cir. 2005); Order, Fairman v. Hargett, No. 2:93
Civ. 125, Dkt. No. 53 (N.D. Miss. July 27, 1998) (granting motion to stay on the
condition that respondents request an expedited hearing on appeal). Accordingly,
this Court routinely expedites appeals when granting such a stay. See, e.g., Sosa v.

Case: 14-60837

Document: 00512851525

Page: 8

Date Filed: 11/28/2014

Bd. of Managers of Val Verde Meml Hosp., 425 F.2d 44, 44 (5th Cir. 1970)
(granting motion for stay pending appeal and sua sponte ordering appeal to be
expedited); Order, Daniels Health Sci., L.L.C. v. Vascular Health Sci., L.L.C., No.
12-20599 (5th Cir. Sept. 11, 2012) (same); Order, United States v. Jefferson, No.
10-30941 (5th Cir. Sept. 30, 2010) (same); Order, Evergreen Presbyterian
Ministries Inc. v. Hood, No. 00-30498 (5th Cir. May 5, 2000) (granting motion for
stay pending appeal and granting motion to expedite appeal); Order, Smith v.
Texaco Inc., No. 97-40087 (5th Cir. Feb. 14, 1997) (same).
5.

Without expedition of briefing and argument in this matter,

whether Mississippis state constitution and statutes violate the Fourteenth

Amendment to the United States Constitution will necessarily be decided by this
Courts determination of Robicheaux and De Leon, which raise similar issues, but
do not involve the State of Mississippi. See Robicheaux v. Caldwell, 2 F. Supp. 3d
910, 913 (E.D. La. 2014) (These consolidated cases challenge the
constitutionality of Louisianas ban on same-sex marriage and its choice not to
recognize same-sex marriages that are lawful in other states.); De Leon v. Perry,
975 F. Supp. 2d 632, 639 (W.D. Tex. 2014) (Plaintiffs challenge Texas ban on
same-sex marriage and Texas failure to recognize out-of-state same-sex marriages
[a]s unconstitutional.).

Case: 14-60837

6.

Document: 00512851525

Page: 9

Date Filed: 11/28/2014

In apparent recognition of the extraordinary import of these

issues, this Court has already granted motions to expedite the proceedings in both
De Leon and Robicheaux. See Order Granting Motion to Expedite Oral
Argument, De Leon v. Perry, No. 14-50196 (5th Cir. Oct. 7, 2014); Order Granting
Motion to Expedite Appeal, Robicheaux v. Caldwell, No. 14-31037 (5th Cir. Sept.
25, 2014); see also Natl City Bank v. Battisti, 581 F.2d 565, 569 (6th Cir. 1977)
(prompt resolution of the issues is essential where an appeal involve[s]
important issues which reach far beyond the particular controversy between the
parties). Other Circuits, when addressing the issue of gay marriage, have similarly
granted expedited appeals. See Order Expediting Appeal, Kitchen v. Herbert, No.
13-4178 (10th Cir. Dec. 24, 2013); Order for Accelerated Briefing, Bostic v.
Schaefer, No. 14-1167 (4th Cir. March 10, 2014); Order Expediting Briefing and
Calendaring of Appeals, Latta v. Otter, No. 14-35420 (9th Cir. May 20, 2014);
Order Granting Motion to Expedite and Consolidate Cases for Argument, Baskin v.
Bogan, No. 14-2386 (7th Cir. July 11, 2014). This case, presenting the same
issues, similarly deserves to be expedited.
7.

The parties in Campaign for Southern Equality deserve to have

their arguments heard by this Court and to have their dispute settled upon its own
merits alongside De Leon and Robicheaux, rather than indirectly and by
implication through other litigants from other states. Judge Reeves decision

Case: 14-60837

Document: 00512851525

Page: 10

Date Filed: 11/28/2014

includes extensive discussion of the history of the Mississippi laws in question,

Opinion at 6-8, 54, 60-61, the history of discrimination against gay men and
lesbians within the State of Mississippi, id. at 31-43, and the current political
climate with respect to equal rights for gay men and lesbians in the State of
Mississippi, id. at 48-49, 58-60. These present unique issues for this Courts
consideration, which are not present in either De Leon or Robicheaux. The statespecific nature of Campaign for Southern Equality weighs heavily in favor of this
Court addressing this case directly. Moreover, doing so would allow Mississippis
laws to stand (or fall) on their own merits, rather than forcing Plaintiffs-Appellees
to rely on other private litigants, or the State of Mississippi to rely on argument
from its sister States. The inconsistency in the application of the constitutional
rights at issue in De Leon, Robicheaux, and Campaign for Southern Equality
strongly warrants this Court providing its reasoned guidance with respect to the
laws of each state in this Circuit.
8.

Judge Reeves recognized as much and explicitly cited this

Courts pending adjudication of De Leon and Robicheaux in just a month and a

half as the reason for granting a temporary stay. Id. at 70. Although PlaintiffsAppellees will be harmed by a stay, id. at 69 (emphasis in original), Judge
Reeves fully recognized that Defendants-Appellants would appeal, and that the
Fifth Circuit may want to consider the appeal alongside the parallel Louisiana and

Case: 14-60837

Document: 00512851525

Page: 11

Date Filed: 11/28/2014

Texas cases. Id. at 70. In light of the interest in circuit-wide uniformity, id., we
respectfully submit that this Court should take precisely the course of action
suggested by Judge Reeves. We further note that a similar approach was taken by
two of this Courts sister Circuits, both of which had a single merits panel address
the constitutionality of the laws barring gay marriage in all states within those
Circuits. See Baskin, 766 F.3d 648 (addressing laws of Wisconsin and Indiana);
DeBoer, 2014 WL 5748990 (addressing laws of Kentucky, Ohio, Michigan and
Tennessee).
9.

A single merits panel addressing all three of the cases from

each of the States in this Circuit would also conserve judicial resources. It would
obviate the need for separate consideration of Campaign for Southern Equality by
a separate panel.
10.

An abbreviated briefing schedule will not prejudice the parties.

The factual record on this appeal is straightforward and uncomplicated, consisting

solely of two declarations that accompanied Plaintiffs-Appellees motion for a
preliminary injunction below, which total only eight pages. See Opinion at 2
(There are no disputed facts.). In litigating that motion, both sides extensively
briefed all issues that will be presented to this Court on appeal. Indeed,
Defendants-Appellants Bryant and Hood have also already briefed the relevant
issues at the appellate level before the Supreme Court of Mississippi. See State of

Case: 14-60837

Document: 00512851525

Page: 12

Date Filed: 11/28/2014

Mississippis Brief of Appellee at 1, Czekala-Chatham v. State, No. 2014-CA00008 (Miss. Aug. 25, 2014) (issues on appeal include [w]hether Mississippis
traditional marriage laws . . . violate Appellants rights under the Fourteenth
Amendment and whether Mississippi is required . . . to recognize Appellants
California same-sex marriage); see also Brief of Gov. Phil Bryant as Amicus
Curiae in Support of the State of Mississippi, Czekala-Chatham v. State, No.
2014-CA-00008 (Miss. Sept. 2, 2014). Having done so, Herculean efforts will not
be necessary to adopt those arguments for this Court. Moreover, whatever burden
counsel will bear in briefing and arguing this appeal on an expedited basis, to the
extent that there is any, is entirely insignificant when weighed against the daily
hardships encountered by gay couples in Mississippi.
11.

In light of the aforementioned considerations, Plaintiffs-

Appellees propose the following briefing schedule: Appellants opening brief to be

due on December 19, 2014, Appellees brief to be due on December 24, 2014, and
Appellants reply brief to be due on December 30, 2014. The proposed briefing
schedule would allow Campaign for Southern Equality to be heard concurrently
with De Leon and Robicheaux on January 9, 2015, with adequate time for
consideration of the parties briefs by the court. Plaintiffs-Appellees intentionally
developed the above schedule to inconvenience the State as little as possible.
Specifically, the State has almost three weeks from the date of decision to submit

Case: 14-60837

Document: 00512851525

Page: 13

Date Filed: 11/28/2014

its brief, while Plaintiffs-Appellees have only three business days to respond
following receipt of the States papers. Should this Court not order the above
schedule, Plaintiffs-Appellees agree to submit responsive papers and to argue this
matter on whatever accelerated schedule this Court deems just and appropriate.
12.

Pursuant to Fifth Circuit Rule 27.4, Counsel for Plaintiffs-

Appellees have consulted with Defendants-Appellants counsel regarding this

motion. Defendants-Appellants have not taken a position on whether they intend
to file an opposition to it, instead explaining their position that it is premature to
discuss a briefing schedule or [Plaintiffs-Appellees] desire to expedite this appeal
until after this Court rules on their motion for a stay.

Case: 14-60837

Document: 00512851525

Page: 14

Date Filed: 11/28/2014

Respectfully submitted,
Dated: November 28, 2014
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
By: /s/ Roberta A. Kaplan
Roberta A. Kaplan
Lead Counsel
Joshua D. Kaye
Jacob H. Hupart
1285 Avenue of the Americas
New York, NY 10019-6064
Tel: (212) 373-3000
Fax: (212) 757-3990
rkaplan@paulweiss.com
jkaye@paulweiss.com
jhupart@paulweiss.com

MCDUFF & BYRD

Robert B. McDuff
Sibyl C. Byrd
Jacob W. Howard
767 North Congress Street
Jackson, Mississippi 39202
Tel: (601) 969-0802
Fax: (601) 969-0804
rbm@mcdufflaw.com
scb@mcdufflaw.com
WALTON LAW OFFICE

Dale Carpenter
University of Minnesota Law School
229 Nineteenth Ave S.
Minneapolis, MN 55455
Telephone: (612) 625-5537
Facsimile: (612) 625-2011
dalecarp@umn.edu

Attorneys for Plaintiffs-Appellees

10

Diane E. Walton
168 S. Liberty Street
Asheville, NC 28801
Tel: (828) 255-1963
Fax: (828) 255-1968
diane@waltonlawoffice.com

Case: 14-60837

Document: 00512851525

Page: 15

Date Filed: 11/28/2014

CERTIFICATE OF COMPLIANCE
The undersigned certifies that on November 28, 2014, this motion was
transmitted to the Clerk of the United States Court of Appeals for the Fifth
Circuit via the Courts CM/ECF document filing system and that this motion
complies with the requirements of 5th Cir. R. 27.4, Fed. R. App. P. 27(d),
Fed. R. App. P. 32(a), and 5th Cir. R. 32.
The undersigned further certifies that: (1) any required privacy
redactions have been made pursuant to 5th Cir. R. 25.2.13; and (2) this
document has been scanned for viruses with the most recent version of a
commercial virus scanning program and is free of viruses.
/s/ Roberta A. Kaplan
Roberta A. Kaplan
1285 Avenue of the Americas
New York, NY 10019-6064
Tel: (212) 373-3000
Fax: (212) 757-3990
rkaplan@paulweiss.com

Case: 14-60837

Document: 00512851525

Page: 16

Date Filed: 11/28/2014

CERTIFICATE OF CONFERENCE
Defendants-Appellants have not taken a position on whether they
intend to file an opposition to this motion, instead explaining on November
26, 2014, their position that it is premature to discuss a briefing schedule or
[Plaintiffs-Appellees] desire to expedite this appeal until after this Court
rules on their motion for a stay.
s/ Roberta A. Kaplan
Roberta A. Kaplan
1285 Avenue of the Americas
New York, NY 10019-6064
Tel: (212) 373-3000
Fax: (212) 757-3990
rkaplan@paulweiss.com

Case: 14-60837

Document: 00512851525

Page: 17

Date Filed: 11/28/2014

CERTIFICATE OF SERVICE
I hereby certify that, on November 28, 2014, I electronically
transmitted the above and foregoing document to the Clerk of the Court
using the ECF system for filing and thereby served on all counsel who have
entered their appearance in this action.
/s/ Roberta A. Kaplan
Roberta A. Kaplan
1285 Avenue of the Americas
New York, NY 10019-6064
Tel: (212) 373-3000
Fax: (212) 757-3990
rkaplan@paulweiss.com