UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA 3:14-cv-213 GENERAL SYNOD OF THE UNITED CHURCH OF CHRIST, et al., v. Plaintiffs, ROY COOPER, in his official capacity as the Attorney General of North Carolina, et al., Defendants. STATE DEFENDANTS RESPONSE TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION Defendants ROY COOPER, RONALD L. MOORE, ROXANN VANEEKHOVEN, NED MANGUM, BRADLEY K. GREENWAY and ANDREW MURRAY, all sued in their official capacities, (hereinafter referred to as the State Defendants, by and through the undersigned attorneys, submit the following Response to Plaintiffs motion for preliminary injunction. Plaintiffs commenced this action, and contemporaneously filed a motion for a preliminary injunction on April 28, 2014. [DE 1, 3]. With their motion, Plaintiffs request the court immediately order: [A]ll Defendants to cease enforcing Section 6 of Article XIV of the North Carolina Constitution, N.C. Gen. Stat. 51-1, et seq., and any other source of state law that operates to deny same-sex couples the right to marry in the State of North Carolina, and that operates to threaten clergy with criminal and civil liability through the performance of religious rites that solemnize the union of same-sex couples. [DE 3]. A stay of all proceedings pending the United States Court of Appeals for the Fourth Circuit s opinion in Bostic v. Schaefer (Case Nos. 14-1167, 14-1169, 14-1173 is appropriate in lieu of the requested injunction. In that case, the Fourth Circuit is considering arguments that are similar to Plaintiffs claims. Other federal courts in North Carolina granted similar stays in the ongoing same-sex marriage litigation. Case 3:14-cv-00213-RJC-DCK Document 65 Filed 06/10/14 Page 1 of 8
McCrory v. North Carolina, 2014 U.S. Dist. LEXIS 68440 (W.D.N.C. May 19, 2014; Fisher- Borne v. Smith, 1:12-CV-589 (M.D.N.C. June 2, 2014(DE 49 (Magistrate Judge s recommended order staying the case; Gerber v. Cooper, 1:14-CV-299 (M.D.N.C. June 2, 2014(DE 49 (Magistrate Judge s recommended order staying the case. In the alternative, if this Court does not grant a stay and considers the motion for preliminary injunction, then the motion should be denied in that Plaintiffs have not met their high burden of persuasion regarding the extraordinary relief they request. INTRODUCTION On April 28, 2014, Plaintiffs commenced this action asking the Court to invalidate North Carolina General Statutes and a Constitutional Amendment that collectively define marriage as a legal union between one man and one woman. [DE 1]. With their complaint, Plaintiffs further pray the Court to declare unconstitutional legislation that delineates the requisites of marriage including: the consent between a man and woman and the process of solemnization, (N.C. Gen. Stat. 51-1; what licensure is needed prior to solemnization, (N.C. Gen. Stat. 51-6; and, the penalties that may be levied against those who solemnize a marriage, under the laws of North Carolina, without a requisite license (N.C. Gen. Stat. 51-7. [DE 5]. On June 3, 2014, Plaintiffs filed an Amended Complaint, which continued to rely upon the original claims for relief but named additional Plaintiffs in this action. [DE 52]. Plaintiffs moved for preliminary injunction based on their First and Fourteenth Amendment claims. [Id.] This motion, in addition to the other proceedings in this matter, should be stayed. In the alternative, the motion for preliminary injunction should be denied because the injunction sought by Plaintiffs will significantly alter the status quo. Further, a preliminary injunction in this matter would be premature given the possibility that it could be soon overruled, 2 Case 3:14-cv-00213-RJC-DCK Document 65 Filed 06/10/14 Page 2 of 8
modified, lifted or remanded for further proceedings consistent with the Fourth Circuit s impending opinion in Bostic. As argued by State Defendants in their motion to stay, [DE 44, 45], an accelerated ruling on the motion for preliminary injunction may lead to complex practical ramifications. See Herbert, et al. v. Kitchen, et. al., 134 S. Ct. 893 (2014. STANDARD FOR PRELIMINARY INJUNCTION Federal courts are under no duty to issue requested injunctive relief for every supposed violation of law. Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978. Instead, injunctions are extraordinary, equitable remedies that do not issue as of course. Weinberger v. Romero- Barcelo, 456 U.S. 305 (1982. Plaintiffs must clearly establish that they are likely to suffer irreparable harm; that the balance of the hardships tips in their favor; that the injunction is in the public interest; and, that they are likely to succeed on the merits. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008. ARGUMENT I. THE INJUNCTION SOUGHT BY PLAINTIFFS WILL ALTER THE STATUS QUO. The purpose of a preliminary injunction is to preserve the status quo between the parties; to preserve the relative position of the parties prior to the challenged action, pending the resolution of the action on its merits. See, e.g., University of Texas v. Camenisch, 451 U.S. 390, 395 (1981; AttorneyFirst, LLC v. Ascension Entm't, Inc., 144 Fed. Appx. 283, 287 (4th Cir. 2005. Requests that disturb the status quo should be denied by trial courts, and court rulings that prematurely alter that status quo, have been treated as an abuse of discretion. Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808-809 (9th Cir. 1963, cert. denied, 375 U.S. 821 (1963; Bell Atl. Business Sys. Servs. v. Hitachi Data Sys. Corp., 856 F. Supp. 524, 525 (N.D. Cal. 1993. 3 Case 3:14-cv-00213-RJC-DCK Document 65 Filed 06/10/14 Page 3 of 8
North Carolina s statutes require the issuance and presentment of a marriage license as one of the pre-conditions of a valid marriage under the laws of the State. See N.C. Gen. Stat. 51-6, 51-7. With their Amended Complaint, Plaintiffs seek to alter the status quo and change North Carolina s definition of marriage. Plaintiffs preliminary injunction seeks an alteration of the definition of marriage and the licensure requirement associated with a State-recognized civil marriage. It does so before the State Defendants deadline to file responsive pleadings; before this Court has had the opportunity to evaluate any dispositive motions; before this action has been adjudicated upon its merits; and prior to forthcoming guidance that may be rendered by the Fourth Circuit Court of Appeals. Plaintiffs seek a premature adjudication of this important issue, and therefore the motion should be denied. II. NORTH CAROLINA S MARRIAGE LAWS DO NOT INFRINGE THE FIRST AMENDMENT RIGHTS OF THE CLERGY PLAINTIFFS AND MAKE THEM SUBJECT TO CRIMINAL PENALTIES. The instant matter is the fourth and most recent suit filed as a challenge to North Carolina s marriage laws. The previous three matters have asserted nearly identical contentions regarding the alleged infringement upon the respective claimant s Fourteenth Amendment rights. However, this suit features a claim not found in the previous three, in which the clergy plaintiffs contend that North Carolina s marriage laws infringe upon their First Amendment rights, and subject them to potential criminal and civil penalties. However, the Constitutional premise that clergy are subject to criminal penalties for performing religious rites, which allegedly arises from N.C. Gen. Stat. 51-1, et seq., is inconsistent with the plain meaning of the pertinent statutes, and the applicable canons of statutory construction. 4 Case 3:14-cv-00213-RJC-DCK Document 65 Filed 06/10/14 Page 4 of 8
Specifically, in pertinent part, N.C. Gen. Stat. 51-6 provides that [n]o minister, officer, or any other person authorized to solemnize a marriage under the laws of this State shall perform a ceremony of marriage between a man and woman, or shall declare them to be husband and wife, until there is delivered to that person a license for the marriage of the said persons. In turn, N.C. Gen. Stat. 51-7 further delineates that: Every minister, officer, or any other person authorized to solemnize a marriage under the laws of this State, who marries any couple without a license being first delivered to that person, as required by law, or after the expiration of such license, or who fails to return such license to the register of deeds within 10 days after any marriage celebrated by virtue thereof, with the certificate appended thereto duly filled up and signed, shall forfeit and pay two hundred dollars ($200.00 to any person who sues therefore, and shall also be guilty of a Class 1 misdemeanor. N.C. Gen. Stat. 51-7 (emphasis added. The plain meaning of these statutes reveals that North Carolina s laws do not impact the scope of religious rites, and rights available to any religious denomination. The challenged statutes do not prohibit the performance of religious ceremonies for any couple, same-sex or otherwise. Instead, these statutes simply curtail the ability of any person to declare that a marriage is valid, under the laws of the State, if not solemnized following the presentment of a valid marriage license. That principle was acknowledged by the North Carolina Supreme Court, when it noted that [w]hether defendant is married in the eyes of God, of himself or of any ecclesiastical body is not our concern. Our concern is whether the marriage is one the State recognizes. State v. Lynch, 301 N.C. 479, 486 (N.C. 1980. North Carolina s laws do not impact clergy s ability to perform purely religious ceremonies, and as a consequence, they implicate neither the free exercise nor the freedom of association concerns suggested by Plaintiffs in their motion for preliminary injunction. Given 5 Case 3:14-cv-00213-RJC-DCK Document 65 Filed 06/10/14 Page 5 of 8
that misapprehension, Plaintiffs request for preliminary injunction should be denied by this Court. III. PLAINTIFFS HAVE NOT SHOWN IRREPARABLE HARM SUFFICIENT TO WARRANT THE GRANT OF THE EXTRAORDINARY REMEDY OF INJUNCTION. Plaintiffs did not meet their requisite burden of demonstrating they will likely be irreparably harmed absent their demanded preliminary relief. The showing of irreparable injury is a mandatory component of injunctive relief. As to the claims of harm to the clergy, [DE 5, pp 43-44], Plaintiffs have alleged only that they fear that their performance of religious ceremonies for same-sex couples is illegal in North Carolina, and may expose them to criminal prosecution and a civil fine. Plaintiffs did not allege that any of the named Defendants, or any other North Carolina state officials, have actually threatened any member of the clergy with prosecution for performing commitment ceremonies, blessings or other purely religious rituals. Plaintiffs likewise did not claim that commitment ceremonies or similar religious events for same-sex couples have not been performed across North Carolina due to the alleged fear of the challenged statutes. Moreover, Plaintiffs have not alleged that clergy have at any time been prosecuted in this State for performing religious marriage ceremonies on behalf of same-sex couples. As this Court previously held [t]he issuance of an injunction is not justified by the mere fact that irreparable harm may possibly ensue if restraint is not imposed.... Injunctions will not be issued merely to allay the fears and apprehensions or to soothe the anxieties of the parties. John Lemmon Films, Inc. v. Atl. Releasing Corp., 617 F. Supp. 992, 996 (W.D.N.C. 1985 (citations omitted. Plaintiffs requested preliminary injunction should therefore be denied. 6 Case 3:14-cv-00213-RJC-DCK Document 65 Filed 06/10/14 Page 6 of 8
CONCLUSION For the foregoing reasons, this Court should order a stay of all proceedings pending the Fourth Circuit s opinion in Bostic. In the alternative, if the Court considers Plaintiffs motion for preliminary injunction, it should be denied. Respectfully submitted, this the 10th day of June, 2014. ROY COOPER North Carolina Attorney General /s/ Amar Majmundar Amar Majmundar Special Deputy Attorney General North Carolina State Bar No. 24668 N.C. Department of Justice Post Office Box 629 Raleigh, NC 27602 Telephone: (919 716-6821 Facsimile: (919 716-6759 Email: amajmundar@ncdoj.gov /s/ Olga E. Vysotskaya de Brito Olga E. Vysotskaya de Brito Special Deputy Attorney General North Carolina State Bar No. 31846 N.C. Department of Justice Post Office Box 629 Raleigh, NC 27602 Telephone: (919 716-0185 Facsimile: (919 716-6759 Email: ovysotskaya@ncdoj.gov /s/ Charles Whitehead Charles G. Whitehead Special Deputy Attorney General North Carolina State Bar No. 39222 N.C. Department of Justice Post Office Box 629 Raleigh, North Carolina 27602 Telephone: (919 716-6840 Email: cwhitehead@ncdoj.gov 7 Case 3:14-cv-00213-RJC-DCK Document 65 Filed 06/10/14 Page 7 of 8
CERTIFICATE OF SERVICE I hereby certify that on June 10, 2014, I electronically filed the foregoing Response with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all counsel of record. /s/ Olga E. Vysotskaya de Brito Olga E. Vysotskaya de Brito Special Deputy Attorney General Case 3:14-cv-00213-RJC-DCK Document 65 Filed 06/10/14 Page 8 of 8