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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION


MIDORI FUJ II, et al., )
)
Plaintiffs, )
)
v. ) No. 1:14-cv-404 RLY-TAB
)
GOVERNOR, STATE OF INDIANA, in )
his official capacity, et al., )
)
Defendants. )

Plaintiffs Memorandum in Opposition to Emergency Motion for Stay Pending Appeal

The profound significance of this Courts decision voiding Indianas prohibition on
same-sex marriage and its prohibition against recognizing otherwise valid out-of-state marriages
is that the decision has removed a wall that fundamentally and unconstitutionally precluded a
significant segment of Indianas population from enjoying the most fundamental of human rights
and entering the most important of all relationships marriage. The State is now asking that this
wall be re-erected pending the appeal of this case. There is certainly no cause to do so and the
stay must be denied.
I. The standard for the grant of an appellate stay
In order to obtain a stay under Rule 62(c) of the Federal Rules of Civil Procedure the
State must demonstrate that:
1) it has a reasonable likelihood of success on the merits; 2) no adequate remedy
at law exists; 3) it will suffer irreparable harm if it is denied; 4) the irreparable
harm the party will suffer without relief is greater than the harm the opposing
party will suffer if the stay is granted; and 5) the stay will be in the public interest.
Hinrichs v. Bosma, 440 F.3d 393, 396 (7th Cir. 2006) (citing Kiel v. City of Kenosha, 236 F. 3d
814, 815-16 (7th Cir. 2000)). However, [a]s with a motion for a preliminary injunction, a
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sliding scale approach applies; the greater the moving party's likelihood of success on the
merits, the less heavily the balance of harms must weigh in its favor, and vice versa. In re A &
F Enterprises, Inc. II, 742 F.3d 763, 766 (7th Cir. 2014). But these standards must be applied
with the knowledge that a stay under Rule 62(c) is considered extraordinary relief for which
the moving party bears a heavy burden. Gay Lesbian Bisexual Alliance v. Sessions, 917 F.
Supp. 1558, 1561 (M.D. Ala. 1996), affd, 110 F.3d 1543 (11
th
Cir. 1997) (quoting Winston-
Salem/Forsyth County Bd. of Educ. v. Scott, 404 U.S. 1221, 1231 (1971) (Burger, C.J ., in
Chambers)). The standards are not met here and the fact that other courts granted stays is not
relevant, particularly because there is now a crushing weight of authority that demonstrates that
this Courts decision is correct.
II. The fact that a stay has been entered in other cases does not justify the issuance of
one here

As indicated below, the State utterly fails to satisfy the requirements for an appellate stay
and therefore its request must be denied. Nevertheless it argues that it is entitled to one because
other courts have stayed their decisions. This is erroneous.
The State notes that the Supreme Court entered a stay in Herbert v. Kitchen, U.S., 134
S.Ct. 893 (2014). However, this was in response to the very first post-Windsor district court
decision holding same-sex marriage prohibitions unconstitutional. See Kitchen v. Herbert, 961 F.
Supp. 2d 1181 (D. Utah 2013), affd, -F.3d-, No. 13-4178, 2014 WL 2868044 (10th Cir. J une 25,
2014). The probability of success analysis has shifted markedly since that time as there has been
an unbroken line of cases that have struck down similar prohibitions or found they were likely
unconstitutional, thus justifying the issuance of a preliminary injunction.
1
Subsequent to the

1
See Kitchen v. Herbert, -F.3d-, No. 13-4178, 2014 WL 2868044 (10th Cir. J une 25, 2014); Wolf
v. Walker, --F. Supp. 2d-, No. 14-CV-64-BBC, 2014 WL 2558444 (W.D. Wis. J une 06, 2014) (final
judgment), appeal docketed, No. 14-2266 (7th Cir. June 9, 2014); Whitewood v. Wolf, -F. Supp. 2d-, No.
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grant of the Supreme Courts stay in Kitchen a number of courts have entered stays without
engaging in any analysis of the factors necessary for a stay. For example, in DeBoer v. Snyder,
No. 14-1341 (6th Cir. Mar. 25, 2014) (attached as Exhibit 1), the panel issued a stay and merely
indicated that it could find no apparent basis to distinguish the case from Kitchen (id. at 3),
although the dissent noted that the defendants had not made the requisite showing to obtain a
stay and further commented that although the Supreme Court granted a stay in Kitchen it did so
without a statement of reasons, and therefore the order provides little guidance. I would therefore
apply the traditional four-factor test, which leads me to conclude that a stay is not warranted,
(id. at 4). See also, e.g., Bourke v. Beshear, 3:13-CV-750-H, 2014 WL 556729, *14 (W.D. Ky.
Feb, 12, 2013) (relying on the Supreme Courts ruling in Kitchen without analysis); Bishop v.
U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1296 (N.D. Okla. 2014) (same); Bostic v. Rainey, 970
F. Supp. 2d 456, 484 (E.D. Va. 2014) (same).
Most recently, on J une 4, 2014, the United States Supreme Court denied a request by a
proposed intervenor in the Oregon case striking down the prohibition against same-sex

1:13-CV-1861, 2014 WL 2058105 (M.D. Pa. May 20, 2014) (final judgment); Geiger v. Kitzhaber, -F.
Supp. 2d-, No. 6:13-CV-02256-MC & 6:13-CV-01834-MC2014, 2014 WL 2054264 (D. Or. May 19,
2014) (final judgment), appeal docketed, No. 14-35427 (9th Cir. May 16, 2014); Latta v. Otter, -F. Supp.
2d-, No. 1:13-CV-00482-CWD, 2014 WL 1909999 (D. Idaho May 13, 2014) (final judgment), appeal
docketed, No. 14-35420 & 14-35421 (9th Cir. May 14, 2014); Henry v. Himes,-F. Supp. 2d-, No. 1:14-
cv-129, 2014 WL 1418395, (S.D. Ohio April 14, 2014) (final judgment), appeal docketed, No. 14-3464
(6th Cir. May 12, 2014); De Boer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014) (final judgment),
appeal docketed, No. 14-1341 (6th Cir. Mar. 21, 2014); Tanco v. Haslam, -F. Supp. 2d-, No. 3:13-cv-
01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) (preliminary injunction), appeal docketed, No. 14-
5287 (6th Cir. Mar 19, 2014); De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex., 2014) (preliminary
injunction), appeal docketed, No. 14-50196 (5th Cir. Mar. 1, 2014); Bostic v. Rainey, 970 F. Supp. 2d 456
(E.D. Va. 2014) (final judgment), appeal docketed, Nos. 14-1167 & 14-1169 (4th Cir. Feb. 25, 2014);
Bourke v. Beshear, -F. Supp. 2d-, No. 3:13-cv-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) (final
judgment), appeal docketed, No 14-5291 (6th Cir. Mar. 19, 2014); Lee v. Orr, No. 13-1879, 2014 WL
683680 (N.D. Ill. Feb. 21, 2014) (final judgment); Bishop v. United States of America, ex rel. Eric H.
Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) (final judgment), appeal docketed, No. 14-5006 (10th
Cir. J an. 27, 2014); Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) (final judgment),
appeal docketed, No. 14-3057 (6th Cir. J an. 22, 2014).


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marriages, Geiger v. Kitzhaber, -F. Supp. 2d-, Nos. 6:13-CV-02256-MC & 6:13-CV-01834-MC,
2014 WL 2054264 (D. Or. May 19, 2014) (final judgment), appeal docketed, No. 14-35427 (9th
Cir. May 16, 2014). See National Organization for Marriage, Inc. v. Geiger, No. 13A1173 (U.S.
J une 4, 2014) (attached as Exhibit 2).
2
While this case can certainly be distinguished because of
the intervention issue, the end result of the denial of the stay is to continue to allow marriages
between same-sex couples to be performed in Oregon. See, e.g., Maria L. LaGanga, U.S.
Supreme Court refuses to block Oregon gay marriage, J une 4, 2013,
http://www.latimes.com/nation/nationnow/la-na-nn-supreme-court-oregon-gay-marriage 20140
604-story.html (last visited J une 26, 2014).
As this Court has noted, in less than a year the law in this area has markedly changed.
Given this, and given that this change has greatly diminished the probability of success on the
merits of the States claims and its appeal, the fact that earlier cases granted appellate stays is no
justification for this Court to do so and the Court should perform the substantive analysis of the
required factors.
III. The State is not likely to succeed on the merits of its claims
In arguing that it will succeed on the merits of its appeal the State briefly summarizes its
prior arguments to this Court. However, as J udge Barker of this Court noted in denying an
appellate stay:
mere recitation of arguments previously made and rejected, or in this case, mere
reference to prior motions to reconsider and to alter and amend, all of which were
denied, is not nearly enough to persuade us that [the movant] is likely to succeed
on appeal. To the contrary, the fact that we have already reconsidered and stood
by our decision several times leads us to conclude that the appeal is quite unlikely
to succeed on appeal.

2
The history of the case and the attempt by the National Organization for Marriage, Incs to
intervene is explained in the attached excerpt (attached as Exhibit 3) from its Emergency Motion Under
Circuit Rule 27-3, filed in the Ninth Circuit.
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Endress Hauser, Inc. v. Hawk Measurement Sys. Pty. Ltd., 932 F. Supp. 1147, 1149 (S.D. Ind.
1996) (emphasis in original).
There are now at least 14 other district court decisions and one federal circuit court
decision that find unconstitutional, or grant preliminary injunctions against, state statutes or
constitutional provisions similar to the Indiana provision found unconstitutional in this case, Ind.
Code 31-11-1-1. Since the Supreme Courts decision in United States v. Windsor, U.S., 133
S. Ct. 2675 (2013), there have been no decisions allowing states to deny to same-sex couples the
same rights that opposite-sex couples have to wed. There is no need for plaintiffs to repeat the
arguments that they previously made in their memoranda supporting their summary judgment
filing. The law in this area is both uniform and clear. The State is not likely to succeed on the
merits of its appeal. Given this, the stay must be denied.
IV. The State is not facing irreparable harm and any harm that the State faces is
outweighed by the harm that a stay would cause the plaintiffs

Given that the State has not demonstrated a likelihood of success on the merits of this
case there is no need to go any further the State is not entitled to a stay. See, e.g., United States
v. South Bend Community Sch. Corp., 692 F.2d 623, 629 (7th Cir. 1982) (noting that the Court
had earlier granted a district courts stay pending appeal because there was no likelihood that
appellant could prevail on its claim). However, it is also clear that any harm that the State faces
is clearly outweighed by the continuing and irreparable harm faced by the plaintiffs if a stay is
granted.
In support of its argument that it will face irreparable harm without a stay the State cites
to the confusion engendered by this Courts decision. (ECF No. 55 at 6-7). However, the
confusion noted was based on the reaction of county clerks within hours of this Courts decision.
This confusion was certainly understandable as many clerks had not yet had the opportunity to
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speak with their county attorneys or receive guidance from the Office of the Attorney General.
However, since then the Attorney General has given guidance to all the clerks in the State that:
For those county clerks that were named (Hamilton, Allen, Boone, Porter, Lake)
in the cases ruled upon today please be aware that you must comply with the
courts ruling or be subject to contempt of court. Other county clerks are not
under the direct jurisdiction of the court order but as an officer of the court we
must encourage everyone to show respect for the judge and the orders that are
issued.

Indiana Law Blog, More on: Attorney General on the County Clerks Duty to Follow Todays
Ruling, J une 25, 2014, available at www.indianalawblog.com (last visited J une 26, 2014). This
should allay any confusion.
The State also argues that confusion will result because the Courts decision cannot
conclusively resolve the legality of same-sex marriages entered into pursuant to the injunctions.
(ECF No. 55 at 9). But, the marriages are valid today and will remain that way unless the
decision is overturned, an eventuality that, as noted above, is not probable. See, e.g., Evans v.
Utah, F.Supp.2d , No. 14-55DAK, 2014 WL 2048343 (D. Utah May 19, 2014) (concluding,
in granting a preliminary injunction, that approximately 1,000 marriages of same-sex couples
entered into pursuant to a since-stayed district court injunction are protected by the Due Process
Clause and therefore valid). There simply is no ambiguity as to the validity of marriages
performed or recognized as a result of the Courts decision.
The other irreparable harm claimed by the State is that taxpayers, like Ms. Fujii, may
initiate proceedings to obtain refunds because their marriages are now recognized as lawful. Of
course, because of time limits contained in Indiana statutes such proceedings may have to be
filed or else limitation periods may run. But if persons with newly recognized marriages file such
judicial or administrative proceedings, the specific court or administrative entity may issue a stay
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once the proceeding is filed if such a stay is deemed necessary. The fact that such proceedings
might occur in the future certainly does not equate to irreparable harm.
Left out in the States calculus is the irreparable harm that plaintiffs will face if a stay is
granted. The Court found that the challenged statute violates the fundamental constitutional
rights of due process and equal protection. This is irreparable harm. See, e.g., Overstreet v.
Lexington-Fayette Urban County Govt, 305 F.3d 566, 578 (6th Cir. 2002) (recognizing that
violation of constitutional rights is irreparable harm for the purpose of a preliminary injunction);
Cohen v. Coahoma County, Miss., 805 F. Supp. 398, 406 (N.D. Miss. 1992) (It has repeatedly
been recognized by the federal courts at all levels that a violation of constitutional rights
constitutes irreparable harm as a matter of law.).
However, the irreparable harm here goes beyond the fact that constitutional rights have
been violated. As this Court recognized in its decision (ECF 50 at 26), the status of married
comes with hundreds of rights and responsibilities under Indiana and federal law. The very
purpose of marriage is to allow couples to enter into a relationship that provides security in the
face of both unanticipated and anticipated vicissitudes of life. Same-sex couples who wish to
marry are subjected to irreparable harm every day they are forced to live without the security that
marriage brings. This is real harm. Moreover, some benefits, such as a spouses ability to collect
Social Security spousal benefits, depend on the length of a marriage. See Christopher Tamborini
and Kevin Whitman, Women, Marriage, and Social Security Benefits Revisited, Social Security
Bulletin, Vol. 67 No. 4, (2007) http://www.ssa.gov/policy/docs/ssb/v67n4/67n4p1.html.
(Qualifying spouse beneficiaries must be married to the retiring spouse for at least one
continuous year prior to applying for benefits.). To allow a stay would further diminish the
protections that marriage brings.
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Moreover, the stay request ignores the continuing stigmatic and other harm inflicted on
the plaintiffs and their children. As the Court noted in Windsor, discrimination against same-sex
couples demeans the couple, whose moral and sexual choices the Constitution protects 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. Windsor, 133 S.Ct. at 2694. This Courts decision removed
that harm. To reinstate it through the granting of the stay would be to reinstate this irreparable
harm.
V. The public interest strongly weighs against the stay
The State argues that the public interest supports a stay because allowing the Order to
remain in force will disrupt public understanding of the meaning and purpose of marriage in
Indiana, raise expectations, and generally create unnecessary confusion among the public.
(ECF No. 55 at 8). Yet, the State does not acknowledge that it is always in the public interest to
prevent violation of a partys constitutional rights. Dj vu of Nashville, Inc. v. Metropolitan
Government of Nashville and Davidson County, Tenn., 274 F.3d 377, 400 (6th Cir. 2001)
(quoting G & V Lounge, Inc. v. Michigan Liquor Control Commn, 23 F.3d 1071, 1079 (6th Cir.
1994) (internal quotation marks omitted)). [I]t is in the public interest to override legislation
that, as found here, infringes on an individuals federal constitutional rights. De Leon, 975 F.
Supp. 2d at 665.
Ultimately the question is what interest does the public in Indiana have in maintaining
what this Court recognizes is profound injustice. (ECF No. 50 at 31). The Hoosier public has
no such interest.

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VI. Conclusion
The State has failed to demonstrate that it meets any of the mandatory requirements for
the issuance of a stay. Accordingly, the stay request should be denied.


/s/ Kenneth J. Falk
Kenneth J . Falk Sean C. Lemieux
No. 6777-49 No. 16778-49
Lemieux Law
/s/ Gavin M. Rose 23 E. 39th St.
Gavin M. Rose Indianapolis, IN 46205
No. 26565-53 317/985-5809
fax: 866/686-2901
/s/ Kelly R. Eskew sean@lemieuxlawoffices.com
Kelly R. Eskew Counsel for plaintiffs Fujii, Layne
No. 22953-49 Betterman, L.M.-C., Scott and
ACLU of Indiana Rodney Moubray-Carrico
1031 E. Washington St.
Indianapolis, IN 46202
317/635-4059
fax: 317/635-4105
kfalk@aclu-in.org
grose@aclu-in.org
keskew@aclu-in.org

J ames Esseks
Pro Hac Vice
Chase Strangio
Pro Hac Vice
American Civil Liberties Union Foundation
125 Broad Street, 18
th
Floor
New York, NY 10004
212/549-2627
fax: 212/549-2650
jesseks@aclu.org
cstrangio@aclu.org

Counsel for plaintiffs Wehrle, Miller, Hasty,
Vallero, MacPherson, Stolen, A.M.-S.



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Certificate of Service

I certify that a copy of the foregoing was filed electronically on this 27th day of J une,
2014. The following parties will be served by operation of the Courts electronic system.

Thomas M. Fisher
Solicitor General
Office of the Attorney General
tom.fisher@atg.in.gov

Thomas A. Hardin
thardin@shineandhardin.com

Darren J . Murphy
dmurphy@ori.net


/s/ Kenneth J. Falk
Kenneth J . Falk
Attorney at Law


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