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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION - DETROIT

ERIN DAWN BLANKENSHIP,individually and as parent and next

friend of G.B. and S.B., minors, and

SHAYLA BLANKENSHIP,

individually and as parent and next

friend of B.B. and S.B., minors,

Plaintiffs,

v

RICK SNYDER, in his official

capacity as Governor of the State of

Michigan; BILL SCHUETTE, in his

official capacity as Attorney General

for the State of Michigan; JOHN

GLEASON, in his official capacity as

Genesee County Clerk; and JAMES

BAUER, in his official capacity asAdministrator of the Probate Court

for Genesee County;

Defendants.

No. 14-cv-12221

HON. ARTHUR J. TARNOW

MAG. MICHAEL J.

HLUCHANIUK

DEFENDANT GOVERNOR

RICK SNYDER AND

ATTORNEY GENERAL BILL

SCHUETTES REPLY BRIEF

IN SUPPORT OF THE

MOTION FOR ABEYANCE

Alec Scott Gibbs (P73593)

Attorney for Plaintiffs

Law Offices of Gregory T. Gibbs

717 S. Grand Traverse St.

Flint, MI 48502

(810) 239-9470

Michael F. Murphy (P29213)

Christina M. Grossi (P67482)

Joshua O. Booth (P53847)

Attorneys for State Defendants

MI Dept of Attorney General

State Operations Division

P.O. Box 30754

Lansing, MI 489009

(517) 373-1162

2:14-cv-12221-AJT-MJH Doc # 23 Filed 08/28/14 Pg 1 of 10 Pg ID 283

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H. William Reising (P19343)

Attorney for County Defendants

Plunkett Cooney

111 E. Court Street, Suite 1B

Flint, MI 48502(810) 342-7001

[email protected]

/

Bill Schuette

Attorney General

Michael F. Murphy

Assistant Attorney General



P.O. Box 30754

Lansing, MI 48909

(517) 373-1162

[email protected]

(P29213)

Dated: August 28, 2014


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Sixth Circuits denial of Plaintiffs motion to intervene that expressly or

implicitly forecloses this Court from granting Defendants motion to

hold this case in abeyance. In any event, the Defendants point about

the motion to intervene was not that the Sixth Circuit thought

Plaintiffs claims were related toDeBoer, but that Plaintiffsthemselves

thought their claims were related enough to warrant intervention.

II. The resolution of Plaintiffs claims will be guided by the

binding precedent established by the Sixth Circuit in thepending same-sex marriage cases.

Plaintiffs downplay the relevance of the same-sex marriage cases

argued in the Sixth Circuit on August 6, 2014. According to Plaintiffs,

there is no reason to believe that the Sixth Circuits decisions in those

cases will be any more instructive than cases decided by sister circuits

in recent months (Doc #19-1, Pg ID, 270).

However, as opposed to the decisions of sister circuits, the

decisions of the Sixth Circuit will establish precedent that is binding on

this Court. In addition, even in the sister circuits (specifically the

Tenth Circuit and the Fourth Circuit), the United States Supreme

Court has stayed decisions invalidating amendments and laws similar

to those in Michigandecisions of the type Plaintiffs are asking this


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Court to make. See e.g., Herbert v. Kitchen, 134 S. Ct. 893 (2014);

McQuigg v. Bostic, 573 U.S. __ (2014), 2014 WL 4096232.

Further, Plaintiffs attempts to distinguish the out-of-state

marriage recognition cases pending in the Sixth Circuit from this case

are unconvincing. At its core, the issue in all of the cases is the same.

The Sixth Circuit must determine the constitutionality of one state

failing to recognize a marriage that was validly solemnized in another

state. The minor language differences in the relevant amendments and

legislation, and the varying procedural postures of the cases are of little,

if any, consequence to the overriding constitutional principles and

analysis.1

It is difficult to envision a scenario wherein the Sixth Circuits

decision in eitherDeBoeror the out-of-state marriage recognition cases

will have no precedential impact on this Courts analysis of Plaintiffs

claims. Defendants submit that this case is dependent uponDeBoer,

but even if the Court disagrees and accepts Plaintiffs position, then this

is at best (from Plaintiffs perspective)a recognition case that will be

guided by the standards announced by the Sixth Circuit in the out-of-

1The fact that the Sixth Circuit heard arguments in all of the cases at

the same time supports this conclusion.


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state same-sex marriage cases. (In fact, Plaintiffs situation is weaker

than a recognition case, because unlike in a recognition case, Plaintiffs

here are not able to rely on any states public policy allowing same-sex

marriage; instead, Plaintiffs rely on a district-court decision overturning

a states public policy.) In either situation, from an analytical

standpoint, it would be prudent for the Court to refrain from

determining Plaintiffs claims until the Sixth Circuit establishes the

standards that will guide that determination.

III. The Western District has granted a similar motion in a

similar case.

The relevance of the Sixth Circuits forthcoming decisions in the

same-sex marriage cases to the issue of Michigan recognizing an out-of-

state marriage was recently acknowledged by Judge Gordon J. Quist in

a similar case, Morgan v. Snyder, No. 1:14-cv-00632 (W.D. Mich.).

The MorganPlaintiffs are a same-sex couple married in New York

who claim that their marriage became legally recognizable in Michigan

immediately upon the declaration inDeBoerthat Michigans Marriage

Amendment was unconstitutional (Exhibit 2, MorganComplaint). In

June 2014, the complaint in Morganwas filed.


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As in the instant case, Defendant Governor Snyder moved the

Court in Morganfor an abeyance pending the Sixth Circuits resolution

ofDeBoerand the same-sex marriage recognition cases arising out of

Ohio, Kentucky, and Tennessee. And on August 11, 2014, the Court

granted Governor Snyders motion and stayed the case pending a

ruling from the Sixth Circuit inDeBoer v. Snyder, 973 F. Supp. 2d 757

(E.D. Mich. 2014) and Henry v. Himes, --- F. Supp. 2d ---, No. 1:14-cv-

129, 2014 WL 13183955 (S.D. Ohio April 14, 2014). (Exhibit 3, Morgan

Stay Order, p. 3).

In granting the motion, the Court stated, [t]here is a strong

likelihood that one of the same-sex marriage cases before the Sixth

Circuit will have a dispositive effect on the instant case(Exhibit 3, p.

2). The Court went on to reason:

[s]taying the instant case will promote judicial economy and the

public welfare. Deferring a ruling in the instant case will save the

Court and the parties from guessing at how the Sixth Circuit will

rule, and from expending the time and resources required to do so.

Moreover, it will prevent needless confusion regarding the state of

the law. [Exhibit 3, p. 2.]

The Court also found that the Plaintiffs professed need for an

immediate ruling is belied by their actions in this case, stating:


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Plaintiffs did not file the instant action until almost 6 months

after they were married, and almost three months after the

district court issued its ruling inDeBoer. They never sought a

preliminary injunction, and have requested an extension of time

to respond to Defendants motion to dismiss. It short, Plaintiffsactions do not demonstrate a need for immediate relief. Moreover,

it is likely that the Sixth Circuit will issue a ruling in a reasonable

time, and thus a stay will not cause undue delay in this case.

[Exhibit 3, p. 2.]

The similarities between Morganand the instant case are

undeniable. The Plaintiffs in the case at bar are also a same-sex couple

married in New York, who assert that the decision inDeBoerlifted any

impediments to the recognition of their marriage in Michigan. This

action was filed only five days before Morgan, nearly three months after

the ruling inDeBoer, and several more months after Plaintiffs were

married in New York.2 Plaintiffs have not sought a preliminary

injunction and have been granted an extension of time in which to

respond to Defendants motion to dismiss.

Defendants acknowledge that Morganis persuasive, not binding,

authority. But in light of the significant similarities between Morgan

2The date on which Plaintiffs were married in New York is not stated in

Plaintiffs complaint. However, presuming the allegations in the

complaint are in chronological order, the marriage would have been

between June 2013 and October 2013, before the December 2013

marriage in Morgan(Complaint, Doc #1, Pg ID 4-5, 18-20).


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and the instant case, a similar analysis and conclusion is warranted

here.

CONCLUSION AND RELIEF REQUESTED

This is an historic decision the Plaintiffs are asking this Court to

make. But historical significance does not command a hasty resolution

and should not overshadow the fact that in the very near future, the

Sixth Circuit will provide this Court with the analytical framework

necessary to determine these parties rights and responsibilities.

Defendants request that this case be held in abeyance pending final

appellate resolution ofDeBoer, et al. v. Snyder, et al., and the same-sex

marriage recognition cases heard by the United States Court of Appeals

for the Sixth Circuit on August 6, 2014.

Bill Schuette

Attorney General

/s/ Michael F. Murphy


Attorney for State Defendants


P.O. Box 30754

Lansing, MI 48909(517) 373-1162

[email protected]

Dated: August 28, 2014 (P29213)


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PROOF OF SERVICE (E-FILE)

I hereby certify that on August 28, 2014, I electronically filed the

foregoing document(s) with the Clerk of the Court using the ECF

System, which will provide electronic notice and copies of such filing of

the following to the parties.

A courtesy copy of the aforementioned document was placed in the

mail directed to:

Hon. Arthur J. Tarnow

U.S. District Court, Eastern Mich.

231 W. Lafayette Blvd., Rm 124

Detroit, MI 48226

/s/ Michael F. Murphy




P.O. Box 30754Lansing, MI 48909

(517) 373-1162

[email protected]

(P29213)2014-0080883-A


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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION - DETROIT

ERIN DAWN BLANKENSHIP,individually and as parent and next

friend of G.B. and S.B., minors, and

SHAYLA BLANKENSHIP,

individually and as parent and next

friend of B.B. and S.B., minors,

Plaintiffs,

v

RICK SNYDER, in his official

capacity as Governor of the State of

Michigan; BILL SCHUETTE, in his

official capacity as Attorney General

for the State of Michigan; JOHN

GLEASON, in his official capacity as

Genesee County Clerk; and JAMES

BAUER, in his official capacity asAdministrator of the Probate Court

for Genesee County;

Defendants.

No. 14-cv-12221

HON. ARTHUR J. TARNOW

MAG. MICHAEL J.

HLUCHANIUK

INDEX OF EXHIBITS TO

DEFENDANTS GOVERNOR

RICK SNYDER AND

ATTORNEY GENERAL BILL

SCHUETTES REPLY BRIEF

IN SUPPORT OF MOTION

FOR ABEYANCE

Alec Scott Gibbs (P73593)

Attorney for Plaintiffs

Law Offices of Gregory T. Gibbs

717 S. Grand Traverse St.

Flint, MI 48502

(810) 239-9470

Michael F. Murphy (P29213)

Christina M. Grossi (P67482)

Joshua O. Booth (P53847)


MI Dept of Attorney General


P.O. Box 30754

Lansing, MI 489009

(517) 373-1162

2:14-cv-12221-AJT-MJH Doc # 23-1 Filed 08/28/14 Pg 1 of 2 Pg ID 293

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2

H. William Reising (P19343)

Attorney for County Defendants

Plunkett Cooney

111 E. Court Street, Suite 1B

Flint, MI 48502(810) 342-7001

[email protected]

/

INDEX OF EXHIBITS

Exhibit 1: 6th Circuit COAs 6/16/14 Order Denying

Blankenships Motion to Intervene, case #14-1341

Exhibit 2: Morgan Complaint, Mich. W.D. case # 14-cv-00632

Exhibit 3: Morgan, Order Granting Motion to Stay

AG#2014-0080883-A


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Exhibit 1


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