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IN THE UNITED STATES COURT OFAPPEALS

FOR THE TENTH CIRCUIT

No. 14-1283

CATHERINE BURNS; et al.

PlaintiffsAppellees,

v.

JOHN SUTHERS, in his official capacity as Attorney General of Colorado;

DefendantAppellant, and

JOHN W. HICKENLOOPER, JR., in his official capacity as Governor of

Colorado; and

PAM ANDERSON, in her official capacity as Clerk and Recorder for

Jefferson County,

Defendants.

ATTORNEY GENERALS OPPOSED MOTION TO HOLD

APPEAL IN ABEYANCE PENDING THE U.S. SUPREME

COURT'S DECISIONS INKITCHENv. HERBERTANDBISHOP

v. SMITH

For the following reasons, Colorado Attorney General John

Suthers respectfully moves to hold this appeal in abeyance until this

Courts decisions inKitchen v. Herbert, No. 13-4178 (10th Cir.) and

Appellate Case: 14-1283 Document: 01019303861 Date Filed: 09/02/2014 Page: 1

Docket Reference 10202983

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Bishop v. Smith, Nos. 14-5003 and 14-5006 (10th Cir.) become final.

Plaintiffs oppose this motion.

1.

The underlying case is about the government institution of

marriage, and this appeal concerns the district courts entry of a

preliminary injunction, barring Defendants from enforcing or applying

Colorado law, which limits marriage to one man and one woman.

2. Plaintiffs, all of whom challenge the constitutionality of Colorados

non-recognition of same-sex marriages, are same-sex couples who are

either married under other states laws or are unmarried and desire to

be married under Colorados laws. Plaintiffs filed suit six days after

this Court issued its decision inKitchen, in which a divided panel of this

Court held that Utahs ban on same-sex marriage was unconstitutional.

Plaintiffs claims are the same claims that theKitchenplaintiffs

asserted in the District of Utah and theBishopplaintiffs asserted in the

Northern District of Oklahoma.

3. Plaintiffs sought a preliminary injunction to enjoin the

enforcement or application of Article II, Section 31 of the Colorado


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Constitution and C.R.S 14-2-104(1)(b) and 14-2-104(2) as bases for

denying marriage to same-sex couples or denying recognition of

otherwise valid same-sex marriages entered in other states.

4. On July 23, 2014, following a motions hearing, the district court

entered a preliminary injunction in Plaintiffs favor and granted a

temporary stay of its decision. The district court, however, declined to

stay its decision pending full appeal, but stayed further proceedings

regarding the merits of Plaintiffs claims until the final mandate is

issued inKitchen.

5.

Also on July 23, 2014, Attorney General Suthers promptly

commenced the instant interlocutory appeal of the district courts

preliminary injunction order and sought a stay pending appeal of the

district courts order granting plaintiffs motion for preliminary

injunction. On August 21, 2014, this Court stayed the district courts

preliminary injunction order pending this appeal.

6. Since the commencement of this appeal, three same-sex marriage

cases have been appealed to the United States Supreme Court. On


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August 5, 2014, Utahs governor and attorney general filed a petition

for a writ of certiorari, seeking the Supreme Courts review of a decision

by a divided panel of this Court inKitchen, and specifically, whether

the Fourteenth Amendment to the United States Constitution prohibits

a state from defining or recognizing marriage only as the legal union

between a man and a woman.

7. One day later, on August 6, 2014, the Tulsa County Court Clerk

for the State of Oklahoma filed a petition for a writ of certiorari, seeking

review of another decision from a divided panel of this Court inBishop

v. Smith, and specifically, [w]hether the Due Process Clause and the

Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution forbid the State of Oklahoma from defining

marriage as the union of a man and a woman.

8.

Two days later, on August 8, 2014, Virginias State Registrar of

Vital Records filed a petition for a writ of certiorari, seeking review of

the Fourth Circuit Court of Appeals decision inBostic v. Rainey, No.

14-1167, in which a divided panel of the court affirmed the district


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courts determination that Virginias same-sex marriage ban is

unconstitutional. Like the instant appeal, and theKitchenandBishop

appeals,Bosticconcerns [w]hether Virginia violates the Due Process

and Equal Protection Clauses by denying the right of marriage to same-

sex couples and by refusing to recognize same-sex marriages lawfully

performed outside of Virginia. SeeBostic cert. petition, attached as

Exhibit A.

9.Although a divided panel of the Tenth Circuit has ruled that

Utahs and Oklahomas bans and non-recognition of same-sex marriage

are unconstitutional, those constitutional questions, which are also at-

issue in this case, are and will remain unsettled until the Tenth

Circuits decisions inKitchenandBishopbecome final in one of two

ways, namely: (a) the Supreme Court denies a petition for writ of

certiorari and the Tenth Circuit issues its mandates; or (b) the Supreme

Court grants the petitions for writ of certiorari and issues final

decisions.


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10.

Without question, the Supreme Courts determination of the

constitutional questions concerning same-sex marriage will directly

bear on and control this case. If the Supreme Court accepts Utahs and

Oklahomas arguments, or otherwise allows those states to enforce

traditional definitions of marriage, Plaintiffs claims in this case will fail

as a consequence.

11. This Court has previously granted motions to hold appeals in

abeyance in analogous circumstances. Most recently, inArmstrong v.

Sebelius, No. 13-1218, this Court granted the U.S. Secretary of Health

and Human Services motion to abate an appeal concerning whether for-

profit, secular corporations have a constitutional right to deny certain

employee health benefits on the basis of religion. This Court abated the

Armstrongappeal in favor of Hobby Lobby Stores, Inc. v. Sebelius, No.

12-6294 (10th Cir.), which concerned the same issue, was procedurally

more advanced, and was already heard by the court en banc. Because a

decision in Hobby Lobbywas forthcoming and could controlArmstrong,


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this Court abated theArmstrongappeal. SeeExs. B & C, Sebeliuss

Motion to Hold Appeal in Abeyance; Order granting motion.

12.

As withArmstrong, an abeyance of the above-captioned

appeal is warranted becauseKitchenandBishopare virtually

guaranteed to control this case once those decisions become final.

Moreover, an abeyance will not prejudice Plaintiffs because the district

court proceedings have been stayed until a mandate is issued in

Kitchen. Likewise, an abeyance will not prejudice the other defendants

in this case, who have chosen not to participate in the instant appeal.


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Respectfully submitted,

JOHN W. SUTHERSAttorney General

/s/Kathryn A. Starnella

MICHAEL FRANCISCO*

Assistant Solicitor General

KATHRYN A. STARNELLA*

Assistant Attorney GeneralAttorneys for Defendant-Appellant

John Suthers, in his official capacity

as Attorney General of Colorado

Ralph L. Carr Colorado Judicial

Center

1300 Broadway, 10th Floor

Denver, Colorado 80203

Telephone: 720-508-6551; 720-508-6176

FAX: 720-508-6041

E-Mail: [email protected];

[email protected]

*Counsel of Record

September 2, 2014


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CERTIFICATE OF SERVICE

I hereby certify that on September 2, 2014, I electronically filed theforegoing using the courts CM/ECF system, which will send notification of

such filing counsel for the Plaintiffs-Appellees, and Defendants.

/s Kathryn A. Starnella

KATHRYN A. STARNELLA*

Assistant Attorney General

Attorneys for Defendant-Appellant John

Suthers, in his official capacity as

Attorney General of Colorado

Ralph L. Carr Colorado Judicial Center

1300 Broadway, 10th Floor

Denver, Colorado 80203

Telephone: 720-508-6176

FAX: 720-508-6041

E-Mail: [email protected]

*Counsel of Record

CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY

REDACTIONS

I hereby certify that a copy of the foregoing Attorney Generals Opposed

Motion to Hold Appeal in Abeyance Pending the U.S. Supreme Courts

DecisionsKitchenv. Herbert andBishop v. Smith, as submitted in Digital Form

via the courts ECF system, is an exact copy of any written document filed

with the Clerk and has been scanned for viruses with the Symantec Endpoint

Protection, Antivirus Version 1.183.1310.0, and, according to the program, is

free of viruses. In addition, I certify all required privacy redactions have been

made.

/s Kathryn A. Starnella

KATHRYN A. STARNELLA


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