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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.,

Plaintiffs,

v.

ROY COOPER, in his official capacity as the
Attorney General of North Carolina, et al.,
Defendants.

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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 Circuits 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.
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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 Judges
recommended order staying the case); Gerber v. Cooper, 1:14-CV-299 (M.D.N.C. June 2,
2014)(DE 49) (Magistrate Judges 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,
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modified, lifted or remanded for further proceedings consistent with the Fourth Circuits
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).
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North Carolinas 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 Carolinas 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 CAROLINAS 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
Carolinas marriage laws. The previous three matters have asserted nearly identical contentions
regarding the alleged infringement upon the respective claimants Fourteenth Amendment rights.
However, this suit features a claim not found in the previous three, in which the clergy plaintiffs
contend that North Carolinas 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.
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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 Carolinas 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 Carolinas laws do not impact clergys 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
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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.

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CONCLUSION
For the foregoing reasons, this Court should order a stay of all proceedings pending the
Fourth Circuits 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
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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



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