4:14-cv-00107 #103

Case 4:14-cv-00107-RH-CAS Document 103 Filed 12/29/14 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
JAMES DOMER BRENNER, et al.,
Plaintiffs,
v.
Case No. 4:14-cv-107-RH/CAS
RICK SCOTT, et al.,

Defendants.
/
SLOAN GRIMSLEY, et al.,
Plaintiffs,
v.
Case No. 4:14-cv-138-RH/CAS
RICK SCOTT, et al.,

Defendants.
/
DMS SECRETARYS RESPONSE TO CLERKS
EMERGENCY MOTION FOR CLARIFICATION
Pursuant to this Courts December 24, 2014, order requiring a response, the
Secretary of the Florida Department of Management Services (the DMS Secretary)
responds to the Washington County Clerk of Courts Emergency Motion for
Clarification, DE 99.
This Court is best situated to determine the reach of its own order. See Ala.
Nursing Home Assn v. Harris, 617 F.2d 385, 388 (5th Cir. 1980) (Great deference is
due the interpretation placed on the terms of an injunctive order by the court who issued
and must enforce it.). If the Court intends for paragraph 4 to bind a Florida clerk of court
(or all Florida clerks of court), additional specificity may be appropriate to place any such
clerk on proper notice. Cf. id. at 387-88 (requirement of specificity and detail ensures
that individuals against whom an injunction is directed receive explicit notice). 1
The persons bound provisions of Rule 65(d)(2), reflected in paragraph 4, do not
broaden that paragraphs scope. See Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945)
(Rule 65 language is derived from the common-law doctrine that a decree of injunction
not only binds the parties defendant but also those identified with them in interest, in
privity with them, represented by them or subject to their control. In essence [the rule]
is that defendants may not nullify a decree by carrying out prohibited acts through aiders
and abettors, although they were not parties to the original proceeding.). A clerk is not in
privity with the DMS and Health Secretaries, represented by them, or subject to their
control. Instead, a Florida clerk of court is an independent constitutional officer. See Fla.
Const. art. V, 16; see also Long v. Willis, 100 So. 3d 4, 10 (Fla. 2d DCA 2011) (The
clerk of the circuit court is a separate constitutional officer elected by the voters and not
selected by the judges of the circuit.). 2
As previously acknowledged, the injunctions in paragraph 4 will have statewide

effect as to the relief ordered against the Secretaries. See, e.g., DE 92 at 6 n.2.
2
In its December 24 order, the Court stated that it dismissed claims against the
Governor and Attorney General after the Secretary, acting through the Attorney General
as the Secretarys attorney, acknowledged that the Secretary was an appropriate
defendant and that full relief could be granted against the Secretary, without the need for
another state official. DE 101 at 1-2 (citing injunction order). The cited injunction order
states that [a]s the state defendants acknowledge, an order directed to the Secretaryor,
for matters relating to the death certificate, to the Surgeon Generalwill be sufficient to
provide complete relief. DE 74 at 13. The state defendants did not challenge the
plaintiffs standing to bring claims against the DMS Secretary regarding pension and
retirement benefits, but the state defendants have never suggested that they have authority
2
In a separate case, counsel for the Brenner plaintiffs advised another federal court
that the injunctive relief in Brenner affects the following people: the Agency Secretary
of the Florida Department of Management Services, the Florida Surgeon General, and
Secretary of Health for the State of Florida, and the Clerk of Court of Washington
County, Florida. Wall-DeSousa v. Florida DHSMV, Brief, Case No. 14-1959, Dec. 9,
2014, DE 12 at 4 (M.D. Fla.); see also id. at 4-5 (Although, in principle, Brenner does
state that section 747.212 [sic] violates the Constitution, the nature of the injunction
entered there is implemented in a very specific context. ... [B]ecause it is a Northern
District of Florida case, [it] is not binding on this court.).
If the Court intends the injunction to have effects beyond those that appear on its
face, or beyond the interpretation of the Brenner plaintiffs counsel, the Court may wish
provide appropriate clarification. 3
[Signature on following page.]
to issue marriage licenses (or compel others to do so). Nor has any plaintiff pleaded any
claim for any marriage license against any state defendant. See DE 10 at 18 (Brenner
plaintiffs prayer for relief).
3
Pursuant to the Courts order, attached as Appendices A and B, respectively, are the
defendants Application to Stay filed with the United States Supreme Court on December
15, 2014, and the defendants Motion to Extend Stay filed with the Eleventh Circuit on
November 18, 2014. Because the defendants Eleventh Circuit initial brief also notes the
stay, that brief is attached as Appendix C.
3
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
/s/ Allen Winsor
ALLEN WINSOR (FBN 16295)
Solicitor General
ADAM S. TANENBAUM (FBN 117498)
Chief Deputy Solicitor General
Office of the Attorney General
The Capitol PL01
Tallahassee, Florida 32399-1050
Telephone: (850) 414-3681
Facsimile: (850) 410-2672
allen.winsor@myfloridalegal.com
adam.tanenbaum@myfloridalegal.com
Counsel for the DMS Secretary
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 29th day of December, 2014, a true copy of the
foregoing was filed with the Court utilizing its CM/ECF system, which will transmit a
notice of electronic filing to all plaintiffs and defendants counsel of record registered
with the Court for that purpose.
/s/ Allen Winsor
Allen Winsor
Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 1 of 71
APPENDIX A
No. 14A
In the
Supreme Court of the United States

SECRETARY, FLORIDA DEPARTMENT OF HEALTH,
SECRETARY, FLORIDA DEPARTMENT OF MANAGEMENT SERVICES, AND
CLERK OF THE COURT FOR WASHINGTON COUNTY, FLORIDA,
Applicants,
v.
JAMES BRENNER, ET AL., &
SLOAN GRIMSLEY, ET AL.,
Respondents.
Application to Stay Preliminary Injunctions of the United States District

Court for the Northern District of Florida Pending Appeal
DIRECTED TO THE HONORABLE CLARENCE THOMAS
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
AND CIRCUIT JUSTICE FOR THE ELEVENTH CIRCUIT
PAMELA JO BONDI
Attorney General of Florida
ALLEN WINSOR
Solicitor General
Counsel of Record
ADAM S. TANENBAUM
OFFICE OF THE
ATTORNEY GENERAL
The Capitol PL01
Tallahassee, Florida 32399-1050
Phone: (850) 414-3681
Counsel for Applicants

December 15, 2014
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... ii
APPLICATION FOR STAY ........................................................................................... 1
INTRODUCTION .......................................................................................................... 2
BACKGROUND ............................................................................................................. 4
JURISDICTION............................................................................................................. 6
REASONS FOR GRANTING THE STAY .................................................................... 8
I.
There Is a Likelihood that Certiorari Will Be Granted if the
Court of Appeals Affirms. .............................................................................................. 9
II.
There Is a Likelihood that the District Courts Decision Will Be
Overturned and the Injunction Held Invalid. ............................................................ 10
III.
The Balance of Equities Weighs in Favor of a Stay. ....................................... 13
CONCLUSION............................................................................................................. 18
APPENDIX................................................................................................................App.
TABLE OF AUTHORITIES
Cases
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971) ............................................................................... 11
Baker v. Nelson,
409 U.S. 810 (1972) ............................................................................................... 11
Baskin v. Bogan,
766 F.3d 648 (7th Cir. 2014) ................................................................................... 9
Bishop v. Smith,
760 F.3d 1070 (10th Cir. 2014) ........................................................................... 5, 9
Bostic v. Schaefer,
760 F.3d 352 (4th Cir. 2014) ............................................................................... 5, 9
Bourke v. Beshear,
996 F. Supp. 2d 542 (W.D. Ky. 2014).................................................................... 16
Campaign for S. Equal. v. Bryant,
Case No. 14-60837 (5th Cir. Dec. 4, 2014).............................................. 3, 8, 14, 16
Coleman v. Paccar Inc.,
424 U.S. 1301 (1976) ............................................................................................... 6
Collins v. City of Harker Heights,
503 U.S. 115 (1992) ............................................................................................... 13
Conde-Vidal v. Garcia-Padilla,
Case No. 14-cv-1253, -- F. Supp. 3d --, 2014 WL 5361987
(D.P.R. Oct. 21, 2014) ............................................................................................ 12
DeBoer v. Snyder,
Case No. 14-1341 (6th Cir. Mar. 25, 2014) ........................................................... 16
DeBoer v. Snyder,
Case No. 14-1341, -- F.3d --, 2014 WL 5748990 (6th Cir. Nov.
6, 2014)........................................................................................................... passim
DeLeon v. Perry,
975 F. Supp. 2d 632 (W.D. Tex. 2014) .............................................................. 8, 16
DeLeon v. Perry,
Case No. 14-50196 (5th Cir.) ................................................................................... 8
ii
Henry v. Himes,
Case No. 1:14-cv-129, 2014 WL 1512541 (S.D. Ohio Apr. 16, 2014) ................... 16
Herbert v. Kitchen,
134 S. Ct. 893 (2014) ............................................................................................... 3
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) ............................................................................................. 6
558 U.S. 183 (2010) ................................................................................................. 9
INS v. Legalization Assistance Project of L.A. Cnty. Fedn of Labor,
510 U.S. 1301 (1993) ........................................................................................ 9, 15
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014) ........................................................................... 5, 9
Land v. Dollar,
330 U.S. 731 (1947) ................................................................................................. 7
Latta v. Otter,
771 F.3d 456 (9th Cir. 2014) ................................................................................... 9
Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................................................... 11
Love v. Beshear,
989 F. Supp. 2d 536 (W.D. Ky. 2014).................................................................... 16
Loving v. Virginia,
388 U.S. 1 (1967) ................................................................................................... 12
Mandel v. Bradley,
432 U.S. 173 (1977) ............................................................................................... 11
Marshall v. Barlows Inc.,
429 U.S. 1347 (1977) ............................................................................................. 16
Maryland v. King,
133 S. Ct. 1 (2012) ................................................................................................. 16
Moser v. Marie,
574 U.S. (No. 14A503) ........................................................................................ 10
New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co.,
434 U.S. 1345 (1977) ............................................................................................. 16
iii
Nken v. Holder,
556 U.S. 418 (2009) ............................................................................................. 7, 8
Parnell v. Hamby,
574 U.S. (No. 14A413) ........................................................................................ 10
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,
134 S. Ct. 506 (2013) ............................................................................................. 16
Romer v. Evans,
517 U.S. 620 (1996) ............................................................................................... 11
San Diegans for Mt. Soledad Natl War Meml v. Paulson,
548 U.S. 1301 (2006) ........................................................................................... 7, 8
Tanco v. Haslam,
Case No. 14-5297 (6th Cir. Apr. 25, 2014)............................................................ 15
Turner v. Safley,
482 U.S. 78 (1987) ................................................................................................. 12
Twentieth Century Airlines v. Ryan,
74 S. Ct. 8 (1953) ..................................................................................................... 7
United States v. Nixon,
418 U.S. 683 (1974) ................................................................................................. 7
United States v. Windsor,
133 S. Ct. 2675 (2013) ..................................................................................... 11, 12
Walters v. Natl Assn of Radiation Survivors,
468 U.S. 1323 (1984) ............................................................................................. 17
Washington v. Glucksberg,
521 U.S. 702 (1997) ......................................................................................... 12, 13
Wilson v. Condon,
574 U.S. (No. 14A533) ........................................................................................ 10
Zablocki v. Redhail,
434 U.S. 374 (1978) ............................................................................................... 12
Statutes
28 U.S.C. 1254 ............................................................................................................. 6
28 U.S.C. 1292 ............................................................................................................. 6
iv
28 U.S.C. 1331 ............................................................................................................. 6

28 U.S.C. 1343 ............................................................................................................. 6
28 U.S.C. 1651 ............................................................................................................. 7
Rules
11th Cir. R. 35-4............................................................................................................. 6
Sup. Ct. R. 10 ................................................................................................................. 9
Sup. Ct. R. 23 ................................................................................................................. 6
Other Authorities
Adolfo Pesquera, Clerks Ready for Same-Sex Marriages,
Whenever They Happen, DAILY BUSINESS REVIEW, Dec. 4,
2014,
http://www.dailybusinessreview.com/id=1202678062785/Cler
ks-Ready-for-SameSex-Marriages-Whenever-They-Happen................................. 3
Claire McNeill, Tampa Bay area prepares to issue same-sex
marriage licenses, TAMPA BAY TIMES, Dec. 4, 2014,
http://www.tampabay.com/news/humaninterest/bay-areaprepares-to-issue-same-sex-marriage-licenses/2208997........................................ 2
Jurisdictional Statement of Appellants,
Baker v. Nelson, No. 71-1027 (U.S. Feb. 11, 1971) .............................................. 11
Petition for Writ of Certiorari,
Bourke v. Beshear, No. 14-574 (filed Nov. 18, 2014) ............................................. 9
DeBoer v. Snyder, No. 14-571 (filed Nov. 14, 2014) ............................................... 9
Obergefell v. Hodges, No. 14-556 (filed Nov. 14, 2014) .......................................... 9
Robicheaux v. George, No. 14-596 (filed Nov. 20, 2014) ....................................... 10
Tanco v. Haslam, No. 14-562 (filed Nov. 14, 2014) ................................................ 9
Sean Daly, Visit Tampa Bay plans target LGBT tourists as gay
marriage legalization nears, TAMPA BAY TIMES, Dec. 5, 2014,
v
http://www.tampabay.com/news/business/tourism/visittampa-bay-to-target-lgbt-tourists-as-florida-same-sexmarriage-nears/2209129 ......................................................................................... 2
Steve Rothaus, Appeals court: gay-marriage stay in Florida to
end Jan. 5; weddings could begin next day, MIAMI HERALD,
Dec. 3, 2014,
http://www.miamiherald.com/news/local/community/gaysouth-florida/article4261997.html .......................................................................... 2
Steve Rothaus, Confusion remains over when gay couples can
wed in Florida, MIAMI HERALD, Dec. 5, 2014,
http://www.miamiherald.com/news/local/community/gaysouth-florida/article4304014.html .......................................................................... 2
vi
APPLICATION FOR STAY
To the Honorable Clarence Thomas, Associate Justice of the Supreme Court

of the United States and Circuit Justice for the United States Court of Appeals for
the Eleventh Circuit:
The applicants are the Secretary of the Florida Department of Health
(Health Secretary), the Secretary of the Florida Department of Management
Services (DMS Secretary), and the Clerk of Court for Washington County, Florida
(Clerk). A district judge preliminarily enjoined the applicants from following and
enforcing Floridas marriage laws, which limit the definition of marriage to the legal
union of one man and one woman. App. A. The judge stayed that preliminary
injunction through January 5, 2015, to give the applicants time to seek a stay from
the Eleventh Circuit pending appeal from the injunction. App. A; cf. App. B. Both
the district judge and the Eleventh Circuit denied the applicants requests to extend
the stay beyond January 5. App. B, C.
The applicants respectfully request a stay for the duration of the appeal.
Alternatively, and at a minimum, the applicants request a stay until this Court
disposes of the four pending certiorari petitions relating to a Sixth Circuit decision
that upheld similar marriage laws in four States, and if any of those petitions is
granted, through issuance of the Courts mandate. The applicants further request
that the stay be in place no later than January 5, 2015, when the lower courts stay
will otherwise expire.
INTRODUCTION
As the district court recognized, [t]here is a substantial public interest . . . in
not having, as some states have had, a decision that is on-again, off-again. App. A,
Order at 28-29. This is so for marriages already entered elsewhere, and it is more
clearly so for new marriages. Id. at 29. The district court entered a limited stay
after recognizing the substantial public interest in stable marriage laws. Id. But
that stay is now set to expire on January 5, 2015, and both the district court and
Eleventh Circuit have denied requests to extend it.
The Eleventh Circuits recent decision denying a longer stay has created
statewide confusion, with news reports now suggesting that the end of the stay will
lead to statewide issuance of same-sex marriage licenses, even though only one of
Floridas 67 clerks of court is a party below. 1 Some clerks who are not parties to this
litigation have announced that, absent a stay, they will begin issuing licenses on
January 6. 2 Concerns about inconsistency and confusion recently led the Fifth
See Steve Rothaus, Appeals court: gay-marriage stay in Florida to end Jan.
5; weddings could begin next day, MIAMI HERALD, Dec. 3, 2014,
http://www.miamiherald.com/news/local/community/gay-south-florida/article426199
7.html; Steve Rothaus, Confusion remains over when gay couples can wed in
Florida,
MIAMI
HERALD,
Dec.
5,
2014,
http://www.miamiherald.
com/news/local/community/gay-south-florida/article 4304014.html; Sean Daly, Visit
Tampa Bay plans target LGBT tourists as gay marriage legalization nears, TAMPA
BAY TIMES, Dec. 5, 2014, http://www.tampabay.com/news/business/tourism/visittampa-bay-to-target-lgbt-tourists-as-florida-same-sex-marriage-nears/2209129.
1
See Claire McNeill, Tampa Bay area prepares to issue same-sex marriage
licenses, TAMPA BAY TIMES, Dec. 4, 2014, http://www.tampabay.com/
news/humaninterest/bay-area-prepares-to-issue-same-sex-marriage-licenses/2208
997; Adolfo Pesquera, Clerks Ready for Same-Sex Marriages, Whenever They
Happen, DAILY BUSINESS REVIEW, Dec. 4, 2014, http://www.dailybusinessreview.
2
Circuit to grant a stay in a similar situation. The day after the Eleventh Circuit
denied the stay in this case, the Fifth Circuit entered an order granting a stay and
explaining that considerations of intra-circuit uniformity and the avoidance of
confusion, should this court lift the stay that is currently in place only to shift gears
after individuals have relied on this change in law, also militate in favor of granting
the States motion. Campaign for S. Equal. v. Bryant, Case No. 14-60837, at 4 (5th
Cir. Dec. 4, 2014) (mem. order). The Fifth Circuit also recognized that [t]he
inevitable disruption that would arise from a lack of continuity and stability in this
important area of law presents a potential harm not just to [the State] but to the
Plaintiffs themselves and to the public interest at large. Id.
Earlier this year, under similar circumstances, Justice Sotomayor (after
referral to the full Court) granted a stay of a district court order enjoining
enforcement of traditional state marriage definitions, pending disposition of an
appeal to the Tenth Circuit. See Herbert v. Kitchen, 134 S. Ct. 893 (2014) (No.
13A687). Several circuits subsequently stayed orders in other cases based on that
stay. In fact, the district court in this case stayed its order pending disposition of
three certiorari petitions that presented the same constitutional questions. App. A,
Order at 32-33. This Court denied all of those petitions, and the stays in the other
circuits ended. But the rationale justifying the stay pending appeal in the Tenth
Circuit (which had then not yet addressed the constitutional question) also justifies
a stay pending appeal in the Eleventh Circuit (which has not yet addressed the
com/id=1202678062785/Clerks-Ready-for-SameSex-Marriages-Whenever-TheyHappen.
3
constitutional question). In addition, there is now a clear circuit split on the

constitutional issue. See DeBoer v. Snyder, Case No. 14-1341, -- F.3d --, 2014 WL
5748990 (6th Cir. Nov. 6, 2014). Thus, this Courts review is more likely now than
before.
BACKGROUND
Two sets of plaintiffs (here, collectively, the respondents) filed suit in the
United States District Court for the Northern District of Florida. Each complaint
challenged the constitutionality of Floridas marriage laws, which limit the
definition and recognition of marriage to the legal union of one man and one
woman.
The respondents sought relief against the Health Secretary based on his
authority to issue and amend death certificates that reflect marital status, and they
sought relief against the DMS Secretary based on his authority to manage Floridas
public employee health insurance and retirement and pension plans, which in part
depend on marital status. Two respondents sought relief against the Clerk of Court
based on his authority to issue marriage licenses in Washington County. See
generally App. A, Order at 4-7, 12-15.
On August 21, 2014, the district court entered identical preliminary
injunctions in each of the consolidated cases. Id. at 27, 30-32. The injunctions
barred the Secretaries from enforcing Floridas marriage laws. Id., Order at 31.
They also required the Clerk of Court to issue a marriage license to the two
respondents who sought one. Id., Order at 31-32. The applicants appealed.
The district court stayed its injunctions (except regarding one amended death
certificate) until 91 days following the denial or lifting of stays in three federal
circuit court casesBishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), Bostic v.
Schaefer,
760
F.3d
352
(4th
Cir.
2014),
and
Kitchen
v.
Herbert,
755 F.3d 1193 (10th Cir. 2014). App. A, Order at 32-33. The stays in Bishop, Bostic,
and Kitchen ended after this Court denied certiorari in those cases on October 6, so
the current stay is set to expire on January 5, 2015 (91 days later). Cf. App. B,
Order at 2, 4, 6.
Both sides moved to modify the stay. The respondents moved to lift the stay
almost immediately. App. B, Order at 1, 4. The applicants moved to extend the stay
beyond January 5, 2015, and throughout the appeal. Id. at 1-2, 4. The district court
denied all the requests and left the original stay expiration date in place. Id. at 2, 6.
According to its order, the public interest was sufficient to support the 90-day delay
so that the Eleventh Circuit can consider the matter with all deliberate speed. Id.
at 4.
The district court stated that the public interest will support a longer stay
only if, having considered the matter, the Eleventh Circuit concludes that the
defendants have a substantial likelihood of success on appeal. In light of the
unbroken line of circuit decisions striking down bans on same-sex marriage and the
Supreme Courts decision to leave those decisions intact, I conclude that a longer
stay is not warranted. Id. at 5.
On November 6, 2014, that unbroken line of circuit decisions was broken

when the Sixth Circuit upheld state marriage laws like Floridas. See DeBoer, 2014
WL 5748990. No fewer than four certiorari petitions followed from that decision and
remain with this Court. See infra. Despite the clear circuit split and this Courts
prior willingness to grant certiorari to consider the issue, see Hollingsworth v. Perry,
133 S. Ct. 2652 (2013), on December 3, 2014, the Eleventh Circuit denied, without
substantive explanation, the applicants request to stay the injunctions for the
duration of the appeals. See App. C.
JURISDICTION
The applicants seek a stay of a district courts preliminary injunctions
against enforcement of Floridas marriage laws while the injunctions undergo
appellate review. The district court had original jurisdiction because the cases
presented issues of federal law. See 28 U.S.C. 1331, 1343(a). The Eleventh
Circuit has appellate jurisdiction because the district court ordered injunctive relief.
See 28 U.S.C. 1292(a).
On November 5, 2014, the district court denied the applicants request to
extend the stay beyond January 5, 2015. App. B. On December 3, 2014, the
Eleventh Circuit denied the same relief. App. C. 3 Therefore, the stay sought is not
available from any other court or judge. Sup. Ct. R. 23.3.
This Court has jurisdiction to review cases properly in a circuit court. See 28
U.S.C. 1254(1); Coleman v. Paccar Inc., 424 U.S. 1301, 1303 (1976) (Rehnquist,
The Eleventh Circuits local rules do not allow for en banc review of that
courts orders on motions to stay. See 11th Cir. R. 35-4.
3
Circuit Justice) (noting that under section 1254, Court has jurisdiction to review by
certiorari any case in a court of appeals) (emphasis supplied); United States v.
Nixon, 418 U.S. 683, 690 (1974) (explaining that petition is properly before this
Court for consideration, even before a decision by circuit court, if case otherwise
was properly in the Court of Appeals when the petition for certiorari was filed);
Land v. Dollar, 330 U.S. 731, 734 n.2 (1947) (Although the judgment below was not
a final one, we considered it appropriate for review because it involved an issue
fundamental to the further conduct of the case.) (internal quotation omitted).
This Court also has jurisdiction to consider and grant a stay for the pendency
of the appeal and any subsequent petition for certiorari. Cf. Nken v. Holder, 556
U.S. 418, 426-27 (2009) (explaining that an appellate courts authority to stay an
order while the orders legality is assessed is inherent, traditional, and firmly
embeddedand preserved in the grant of authority to federal courts through
section 1651(a)to ensur[e] that appellate courts can responsibly fulfill their role
in the judicial process); see 28 U.S.C. 1651(a); see also Twentieth Century Airlines
v. Ryan, 74 S. Ct. 8, 10-11 (1953) (Reed, J., in chambers) (noting that power of any
justice to act on stay application, even regarding stay of a non-final order, is
assumed); San Diegans for Mt. Soledad Natl War Meml v. Paulson, 548 U.S. 1301,
1302, 1304 (2006) (Kennedy, Circuit Justice) (granting stay of injunction pending
appeal in circuit court).
REASONS FOR GRANTING THE STAY

The respondents contend the Fourteenth Amendment requires states to
recognize same-sex marriage. Several circuits (two with divided panels) recently
held that the respondents view is correct. See DeBoer, 2014 WL 5748990, at *7
(collecting cases). The Sixth Circuit (also with a divided panel) held that the States
view is correct. See generally id. Other circuits, including the Fifth Circuit, see
DeLeon v. Perry, Case No. 14-50196 (5th Cir.); Bryant, Case No. 14-60837; and the
Eleventh Circuit in this case, have the issue before them but have not yet ruled.
Notably, the Fifth Circuit just granted a stay pending its review in a case before it
where a stay had not been granted by the district court. See Bryant, Case No. 1460837 (5th Cir. Dec. 4, 2014) (mem. order) (appeal from the Southern District of
Mississippi); cf. DeLeon v. Perry, 975 F. Supp. 2d 632, 666 (W.D. Tex. 2014) (staying
injunction, pursuant to this Courts stay in Herbert, pending appellate review). The
constitutional issue is a serious one, and it deserves appellate review before the
injunctions should become effective.
Whether a stay is appropriate depends on the circumstances of the
particular case. Nken, 556 U.S. at 433 (internal quotation and citation omitted). In
considering stay applications on matters pending before the Court of Appeals, a
Circuit Justice must try to predict whether four Justices would vote to grant
certiorari should the Court of Appeals affirm the District Court order without
modification; try to predict whether the Court would then set the order aside; and
balance the so-called stay equities. San Diegans, 548 U.S. at 1302-03 (Kennedy,
Circuit Justice) (quoting INS v. Legalization Assistance Project of L.A. Cnty. Fedn of
Labor, 510 U.S. 1301, 1304 (1993) (O'Connor, Circuit Justice)) (internal quotations
omitted); accord Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). These
considerations all point toward issuing a stay.
I.
THERE IS A LIKELIHOOD THAT CERTIORARI WILL BE GRANTED

COURT OF APPEALS AFFIRMS.
IF THE
At this point, there is a probability that four Justices will vote to grant one or
more of the petitions for certiorari coming out of the Sixth Circuit cases. The
decision in DeBoer creates a clear circuit split on the question of whether the
Fourteenth Amendment requires the States to redefine marriage to include samesex marriage. Compare DeBoer, 2014 WL 5748990, with Bostic, 760 F.3d 352; Latta
v. Otter, 771 F.3d 456 (9th Cir. 2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014);
Bishop, 760 F.3d 1070; and Kitchen, 755 F.3d 1193; see also Sup. Ct. R. 10(a)
(listing among the compelling reasons for granting certiorari a conflict with the
decision of another United States court of appeals on the same important matter).
Already, four petitions for certiorari have arrived at this Court challenging the
Sixth Circuits decision. See Petition for Writ of Certiorari, Bourke v. Beshear, No.
14-574 (filed Nov. 18, 2014); Petition for Writ of Certiorari, DeBoer v. Snyder, No.
14-571 (filed Nov. 14, 2014); Petition for Writ of Certiorari, Tanco v. Haslam, No.
14-562 (filed Nov. 14, 2014); Petition for Writ of Certiorari, Obergefell v. Hodges, No.
14-556 (filed Nov. 14, 2014). A fifth petition is before this Court out of the Fifth
Circuit and seeks review, before appellate judgment, of a district court order that
upheld Louisianas traditional marriage laws (and therefore conflicts with the
9
decisions of the Fourth, Seventh, Ninth, and Tenth Circuits). See Petition for Writ
of Certiorari, Robicheaux v. George, No. 14-596 (filed Nov. 20, 2014). 4 And the issue
is one of persistent national attention and of particular importance in Stateslike
Floridawhose voters affirmed the traditional definition of marriage in their
constitutions.
It is true that this Court recently denied certiorari in cases invalidating
traditional marriage laws. But those denials came before the Sixth Circuit
established the current circuit split, which enhanced the need for a decision from
this Court. 5 Because this Court is unlikely to allow the circuit split to continue, it is
likely that the Court will grant certiorari in the Sixth Circuit cases.
II.
THERE IS A LIKELIHOOD THAT THE DISTRICT COURTS DECISION WILL BE

OVERTURNED AND THE INJUNCTION HELD INVALID.
When the Court does decide the issue, it will likely reaffirm the States nearly
exclusive authority to define marriage and hold that the Fourteenth Amendment
allows states to define marriage as Florida has. The Court is therefore likely to
affirm the Sixth Circuits judgment. And if the Eleventh Circuit in the interim
affirmed the district courts injunction, this Court likely would vacate that decision.
So far, in the Bourke, DeBoer, Obergefell, and Robicheaux cases, the
respondents have submitted briefs in support of certiorari on the constitutional
question at issue here. In the DeBoer and Robicheaux cases, the petitioners have
filed letters waiving a reply and the 14-day waiting period before circulation.
4
The Courts recent denials of stays in other marriage lawsuits have arisen
from circuits that already decided the ultimate issue. See Wilson v. Condon, 574
U.S. (No. 14A533) (application out of State of South Carolina, in the Fourth
Circuit); Moser v. Marie, 574 U.S. (No. 14A503) (application out of State of
Kansas, in the Tenth Circuit); Parnell v. Hamby, 574 U.S. (No. 14A413)
(application out of State of Alaska, in the Ninth Circuit).
5
10
1.
The district courts decision conflicts with this Courts decision in
Baker v. Nelson, 409 U.S. 810 (1972), which determined that state laws prohibiting
same-sex marriages do not give rise to a substantial federal question. Baker was an
appeal from the Minnesota Supreme Court presenting the issue herewhether a
States decision not to allow same-sex marriage violated due process or equal
protection under the Fourteenth Amendment. See Baker, 409 U.S. 810;
Jurisdictional Statement of Appellants at 3, Baker v. Nelson, No. 71-1027 (U.S. Feb.
11, 1971); Baker v. Nelson, 191 N.W.2d 185, 185-87 (Minn. 1971). The Minnesota
Supreme Court held that the states law did not violate federal due process or equal
protection, Baker, 191 N.W.2d at 186-87, and the plaintiffs asked this Court to
reverse. On direct appeal, this Court summarily dismissed. See Baker, 409 U.S. 810.
That decision was one on the merits, without doubt reject[ing] the specific
challenges presented in the statement of jurisdiction, and prevent[ing] lower
courts from coming to opposite conclusions on the precise issues presented. Mandel
v. Bradley, 432 U.S. 173, 176 (1977).
Although Baker preceded this Courts decisions in cases like Romer v. Evans,
517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558 (2003), and United States v.
Windsor, 133 S. Ct. 2675 (2013), the decision in Baker remains consistent with longstanding precedent that recognizes the States virtually exclusive authority to
define and regulate marriage. Indeed, the Court reaffirmed that state authority just
last year. Windsor, 133 S. Ct. at 2691. Windsor invalidated a federal law that
refused to respect state laws permitting gay marriage, while Baker upheld the right
11
of the people of a State to define marriage as they see it. To respect one decision
does not slight the other. DeBoer, 2014 WL 5748990, at *6; accord Conde-Vidal v.
Garcia-Padilla, Case No. 14-cv-1253, -- F. Supp. 3d --, 2014 WL 5361987, at *8
(D.P.R. Oct. 21, 2014) (court cannot interpret Windsors endorsement of the state
control of marriage as eliminating the state control of marriage.).
2.
The district court also held that Floridas marriage laws, by precluding
same-sex marriages, violated the fundamental right to marry. But the right to
marry that this Court repeatedly has recognized necessarily refers to traditional
marriage. Because same-sex marriage is a relatively new concepthaving not
appeared in the United States until 2003, see Windsor, 133 S. Ct. at 2715 (Alito, J.,
dissenting)it is not objectively or deeply rooted in this Nations history and
tradition, so it is not a fundamental right. Cf. Washington v. Glucksberg, 521 U.S.
702, 720-21 (1997).
This Court has never held that there is a fundamental right to same-sex
marriage. This Courts decisions affirming a fundamental right to marry were
premised on marriage being a legal union between one man and one woman. See,
e.g., Loving v. Virginia, 388 U.S. 1 (1967); Zablocki v. Redhail, 434 U.S. 374 (1978);
Turner v. Safley, 482 U.S. 78 (1987). At the time of Loving, marriage between a
man and a woman no doubt [was] thought of . . . as essential to the very definition
of that term. Windsor, 133 S. Ct. at 2689; see also DeBoer, 2014 WL 5748990, at
*16 (In referring to marriage rather than opposite-sex marriage, Loving
confirmed only that opposite-sex marriage would have been considered redundant,
12
not that marriage included same-sex couples.); see also id. at *17 (When Loving
and its progeny used the word marriage, they did not redefine the term but
accepted its traditional meaning.).
The respondents thus effectively seek to establish a new fundamental right
rather than protect an existing one. This Court has shown a reluctance to recognize
a new right not only because guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended, Collins v. City of Harker Heights, 503
U.S. 115, 125 (1992), but also because of the separation of powers. By extending
constitutional protection to an asserted right or liberty interest, [courts], to a great
extent, place the matter outside the arena of public debate and legislative action.
Glucksberg, 521 U.S. at 720.
This Court likely would affirm the Sixth Circuits judgment that the district
courts went beyond their authority in enjoining States from enforcing their
traditional marriage laws; similarly, this Court likely would vacate the Eleventh
Circuits judgment if it were to affirm the district courts order here.
III.
THE BALANCE OF EQUITIES WEIGHS IN FAVOR OF A STAY.

The district court correctly recognized that [t]here is a substantial public
interest in stable marriage laws. App. A, Order at 29. That interest will be just as
great on January 6, 2015, as it is now. If Floridas law is going to change in the
substantial manner the injunction would require, it should happen only after the
order undergoes appellate review. The public interest is not served by on-again, offagain marriage laws.
13
The district court also recognized the substantial public interest in allowing
those who would enter same-sex marriages the same opportunity for due
deliberation that opposite-sex couples routinely are afforded. Encouraging a rush to
the marriage officiant, in an effort to get in before an appellate court enters a stay,
serves the interests of nobody. App. A, Order at 29; accord Bryant, No. 14-60837, at
4 (5th Cir. Dec. 4, 2014) (mem. order) (granting stay pending appeal after
recognizing that a race to the courthousewith same-sex couples rushing to the
circuit clerks office, and the State rushing to the Fifth Circuitdoes not serve
anyones interest) (quoting district courts rationale for temporary stay). The same
is true if those efforts are to rush to the marriage officiant before the Eleventh
Circuit or this Court rules on the merits.
In addition, there is a substantial interest in uniformity throughout the
State. See Bryant, No. 14-60837, at 4 (noting that considerations of uniformity and
avoidance of confusion militate in favor of granting the States motion for stay;
The inevitable disruption that would arise from a lack of continuity and stability in
this important area of law presents a potential harm not just to Mississippi but to
the Plaintiffs themselves and to the public interest at large.). The respondents sued
only one clerk of court; the other 66 county clerks are not parties. The public
interest is not served by having two sets of marriage laws in Florida or by confusion
about the law. 6 See supra at 2-3. Moreover, those who did marry based on the
The Health and DMS Secretaries acknowledge that the injunctions as to

them would have statewide effect, because the Secretaries have statewide duties
and the order preliminarily enjoins their enforcing the marriage laws.
6
14
preliminary injunction would face uncertainty regarding their marital status if this
Court affirms the Sixth Circuit and vacates any affirmance by the Eleventh Circuit
(or if the Eleventh Circuit reverses).
Next, if the district courts injunction is not stayed pending appeal, the DMS
Secretary will have to reconfigure the States public employee health insurance,
retirement, and pension systems and recognize same-sex marriages performed in
other States in myriad public employment circumstances, and the Health Secretary
will have to reconfigure various aspects of the States vital records system. See
Legalization Assistance Project, 510 U.S. at 1305 (considering in balance of equities
that [t]he order would impose a considerable administrative burden) (OConnor,
Circuit Justice). If the district courts decision is overturned, those costs will be
compounded by the need to return the systems and participants to the position
before the injunctions went into effect.
The public interest led other courts to issue stays in similar circumstances.
The orders on review with the Sixth Circuit, for example, were stayed while they
were on appeal. 7 See Tanco v. Haslam, Case No. 14-5297 (6th Cir. Apr. 25, 2014)
(mem. order) (granting stay pending appeal in Tennessee case after district court
denied stay; finding that public interest requires granting a stay in light of hotly
contested issue in the contemporary legal landscape and possible confusion, cost,
and inequity if State ultimately successful) (following and quoting Henry v. Himes,
The one exception to this general statement was one Ohio case in which the
order was limited to requiring two death certificates be amended to list the
decedents same-sex partners as their spouses.
7
15
Case No. 1:14-cv-129, 2014 WL 1512541, at *1 (S.D. Ohio Apr. 16, 2014)); DeBoer v.
Snyder, Case No. 14-1341 (6th Cir. Mar. 25, 2014) (mem. order) (Michigan case);
Love v. Beshear, 989 F. Supp. 2d 536, 550 (W.D. Ky. 2014); Bourke v. Beshear, 996
F. Supp. 2d 542, 558 (W.D. Ky. 2014) (One judge may decide a case, but ultimately
others have a final say . . . . It is best that these momentous changes occur upon full
review, rather than risk premature implementation or confusing changes.). And, as
also noted, the Fifth Circuit granted a stay pending its review of a district courts
invalidation of Texass marriage laws. See Bryant, Case No. 14-60837 (Dec. 4, 2014)
(mem. order); see also DeLeon, 975 F. Supp. 2d at 666. The public interest rationale
that justified these stays applies with no less force here.
Finally, statutes are presumptively constitutional and, absent compelling
equities on the other side . . . should remain in effect pending a final decision on the
merits by this Court. New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S.
1345, 1352 (1977) (Rehnquist, Circuit Justice) (citing Marshall v. Barlows Inc., 429
U.S. 1347, 1348 (1977) (Rehnquist, Circuit Justice)). Any time a court enjoins a
State from effectuating statutes enacted by representatives of its people, there is
an equity on the side of granting a stay. New Motor Vehicle Bd. of Cal., 434 U.S. at
1351 (Rehnquist, Circuit Justice); see Planned Parenthood of Greater Tex. Surgical
Health Servs. v. Abbott, 134 S. Ct. 506, 506 (2013) (noting that effect on State of
court injunction against enforcement of one of its statutes is one of the two most
critical factors weighing in favor of stay) (Scalia, J., concurring in upholding stay);
Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, Circuit Justice) (determining that
16
States inability to employ a duly enacted statute weighs in favor of stay); Walters
v. Natl Assn of Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, Circuit
Justice) (noting that presumption of constitutionality attaching to statute is not
merely a factor to be considered in evaluating success on the merits, but an equity
to be considered in favor of applicants in balancing hardships).
It is true that any denial of a constitutional right is a real injury, but the
existence of that constitutional right is the contested issue on appeal. Regardless,
any conceivable injury to the respondents today is no greater than the injury to the
respondents earlier in this case, when the district court decided on balance to stay
the injunctions in the first place. There is no need for immediate relief now that
alters that balance of equities away from entering the stay.
17
APPENDIX
App. A
District Court Order Denying the Motions to Dismiss, Granting

a Preliminary Injunction, and Temporarily Staying the
Injunction, dated August 21, 2014
App. B
District Court Order Denying the Motions to Alter the Stay,

dated November 5, 2014
App. C
Eleventh Circuit Order Denying Further Stay, dated December

3, 2014
App.
APPENDIX
A
District Court Order Denying the
Motions to Dismiss, Granting a
Preliminary Injunction, and
Temporarily Staying the Injunction,
dated August 21, 2014
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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA
JAMES DOMER BRENNER et al.,

Plaintiffs,
v.
CASE NO. 4:14cv107-RH/CAS
RICK SCOTT, etc., et al.,

Defendants.
_________________________________/
SLOAN GRIMSLEY et al.,
Plaintiffs,
v.

Defendants.
_________________________________/
ORDER DENYING THE MOTIONS TO DISMISS,
GRANTING A PRELIMINARY INJUNCTION, AND
TEMPORARILY STAYING THE INJUNCTION
Cases No. 4:14cv107-RH/CAS and 4:14cv138-RH/.CAS
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The issue in these consolidated cases is the constitutionality of Floridas

refusal to allow same-sex marriages or to recognize same-sex marriages lawfully
entered elsewhere.
The founders of this nation said in the preamble to the United States
Constitution that a goal was to secure the blessings of liberty to themselves and
their posterity. Liberty has come more slowly for some than for others. It was
1967, nearly two centuries after the Constitution was adopted, before the Supreme
Court struck down state laws prohibiting interracial marriage, thus protecting the
liberty of individuals whose chosen life partner was of a different race. Now,
nearly 50 years later, the arguments supporting the ban on interracial marriage
seem an obvious pretext for racism; it must be hard for those who were not then of
age to understand just how sincerely those views were held. When observers look
back 50 years from now, the arguments supporting Floridas ban on same-sex
marriage, though just as sincerely held, will again seem an obvious pretext for
discrimination. Observers who are not now of age will wonder just how those
views could have been held.
The Supreme Court struck down part of the federal Defense of Marriage Act
last year. United States v. Windsor, 133 S. Ct. 2675 (2013). Since that decision,
19 different federal courts, now including this one, have ruled on the
constitutionality of state bans on same-sex marriage. The result: 19 consecutive
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victories for those challenging the bans. Based on these decisions, gays and
lesbians, like all other adults, may choose a life partner and dignify the relationship
through marriage. To paraphrase a civil-rights leader from the age when interracial
marriage was first struck down, the arc of history is long, but it bends toward
justice.
These consolidated cases are here on the plaintiffs motions for a
preliminary injunction and the defendants motions to dismiss. This order holds
that marriage is a fundamental right as that term is used in cases arising under the
Fourteenth Amendments Due Process and Equal Protection Clauses, that Floridas
same-sex marriage provisions thus must be reviewed under strict scrutiny, and that,
when so reviewed, the provisions are unconstitutional. The order dismisses the
claims against unnecessary defendants but otherwise denies the motions to dismiss.
The order grants a preliminary injunction but also grants a temporary stay.
All of this accords with the unbroken line of federal authority since Windsor.
Indeed, except for details about these specific parties, this opinion could end at this
point, merely by citing with approval the circuit decisions striking down state bans
on same-sex marriage: Bostic v. Schaefer, Nos. 141167, 141169, 141173, 2014
WL 3702493 (4th Cir. July 28, 2014); Bishop v. Smith, Nos. 145003, 145006,
2014 WL 3537847 (10th Cir. July 18, 2014); and Kitchen v. Herbert, No. 134178,
2014 WL 2868044 (10th Cir. June 25, 2014).
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I. Background
This order addresses two cases that have been consolidated for pretrial
purposes. The order sometimes refers to Case No. 4:14cv107 as the Brenner
case. The order sometimes refers to Case No. 4:14cv138 as the Grimsley case.
A. The Plaintiffs
The combined total of 22 plaintiffs in the two cases includes 9 sets of samesex spouses who were lawfully married in New York, the District of Columbia,
Iowa, Massachusetts, or Canada; the surviving spouse of a New York same-sex
marriage; 2 individuals who have been in a same-sex relationship for 15 years, are
not married, but wish to marry in Florida; and an organization asserting the rights
of its members who lawfully entered same-sex marriages outside Florida. All the
individual plaintiffs live in Florida. The details follow.
The first two Brenner-case plaintiffs are James D. Brenner and Charles D.
Jones. Mr. Brenner has worked for the Florida Forest Service since 1981. Mr.
Jones has worked for the Florida Department of Education since 2003. They were
married in Canada in 2009. Mr. Brenner asserts that the states refusal to
recognize their marriage eliminates a retirement option that would provide for Mr.
Jones after Mr. Brenners death.
Brenner-case plaintiffs Stephen Schlairet and Ozzie Russ live in Washington
County, Florida. They are not married in any jurisdiction. They meet all
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requirements for marriage in Florida except that they are both men. They wish to
marry and have applied to the defendant Washington County Clerk of Court for a
marriage license. During breaks in employment, they have been unable to obtain
healthcare coverage under one anothers insurance plans because of Floridas
challenged marriage provisions. Based solely on those provisions, the Clerk
refuses to issue a license.
Grimsley-case plaintiffs Sloan Grimsley and Joyce Albu have been together
for 9 years and were married in New York in 2011. They have two adopted minor
children. Ms. Grimsley is a firefighter and paramedic for the City of Palm Beach
Gardens, Florida. Ms. Grimsley and Ms. Albu are concerned that if something
happens to Ms. Grimsley in the line of duty, Ms. Albu will not receive the same
support the state provides to surviving opposite-sex spouses of first responders.
Grimsley-case plaintiffs Chuck Hunziker and Bob Collier have been
together for over 50 years. They lived most of their lives in New York and were
married there in 2013. They now are retired and live in Florida.
Grimsley-case plaintiffs Lindsay Myers and Sarah Humlie have been
together for nearly 4 years and were married in the District of Columbia in 2012.
They live in Pensacola, Florida. Ms. Myers works for the University of West
Florida. Ms. Myers seeks the option to designate Ms. Humlie as her joint annuitant
for pension purposes. Ms. Humlie does not receive health insurance through her
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employer. Because state law prohibits public employers from providing insurance
for same-sex spouses, Ms. Myers cannot get coverage for Ms. Humlie on Ms.
Myerss health plan. The couple makes substantial payments each month for
private health insurance for Ms. Humlie.
Grimsley-case plaintiffs Robert Loupo and John Fitzgerald have been
together for 12 years. They were married in New York in 2013. Mr. Loupo is
employed with the Miami-Dade County public schools. Mr. Fitzgerald is retired
but previously worked for Miami-Dade County. Mr. Loupo wishes to designate
Mr. Fitzgerald as his retirement-plan joint annuitant.
Grimsley-case plaintiffs Denise Hueso and Sandra Newson were married in
Massachusetts in 2009. They lived in Massachusetts, but now they live in Miami.
They have had custody of their now 15-year-old son for 5 years, first as foster
parents and now as adoptive parents.
Grimsley-case plaintiffs Juan del Hierro and Thomas Gantt, Jr., have been
together for 6 years and were married in Washington, D.C., in 2010. They live in
North Miami Beach. They have an adopted son under age 2. Mr. Gantt taught for
more than a decade in public schools but now works at a virtual school. If their
marriage were recognized, Mr. Gantt would designate Mr. del Hierro as his
pension beneficiary.
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Grimsley-case plaintiffs Christian Ulvert and Carlos Andrade live in Miami.

They have been together for 4 years and were married in the District of Columbia
in 2013. Mr. Ulvert previously worked for the Florida Legislature and wishes to
designate Mr. Andrade as his pension beneficiary. They wish to someday adopt
children.
Grimsley-case plaintiffs Richard Milstein and Eric Hankin live in Miami
Beach. They have been together for 12 years and were married in Iowa in 2010.
Grimsley-case plaintiff Arlene Goldberg married Carol Goldwasser in New
York in 2011. Ms. Goldwasser died in March 2014. The couple had been together
for 47 years. Ms. Goldwasser was the toll-facilities director for Lee County,
Florida, for 17 years. Ms. Goldberg is retired but works part time at a major
retailer. The couple had been living with and taking care of Ms. Goldwassers
elderly parents, but now Ms. Goldberg cares for them alone. Social-security
benefits are Ms. Goldbergs primary income. Floridas refusal to recognize the
marriage has precluded Ms. Goldberg from obtaining social-security survivor
benefits. Ms. Goldberg says that for that reason only, she will have to sell her
house, and Ms. Goldwassers parents are looking for another place to live. Ms.
Goldberg also wishes to amend Ms. Goldwassers death certificate to reflect their
marriage.
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Grimsley-case plaintiff SAVE Foundation, Inc. was established in 1993 and

is dedicated to promoting, protecting, and defending equality for lesbian, gay,
bisexual, and transgendered people. SAVEs activities include education
initiatives, outreach, grassroots organizing, and advocacy. In this action SAVE
asserts the rights of its members who are same-sex couples and have lawfully
married outside of Florida.
B. The Defendants
The Brenner and Grimsley cases have four defendants in common. The
Brenner case adds a fifth.
The defendants in common are State of Florida officers, all in their official
capacities: the Governor, the Attorney General, the Surgeon General, and the
Secretary of the Department of Management Services. This order sometimes
refers to these four defendants as the state defendants. The order sometimes
refers to the Secretary of the Department of Management Services as the
Secretary.
The fifth defendant in the Brenner case is the Clerk of Court of Washington
County, Florida, again in his official capacity. This order sometimes refers to him
as the Clerk of Court or simply the Clerk.
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C. The Claims
In each case, the plaintiffs have filed an amended complaint. Each amended
complaint asserts that the Florida same-sex marriage provisions violate the
Fourteenth Amendments Due Process and Equal Protection Clauses. On the
Equal Protection claim, the Brenner plaintiffs say the challenged provisions
improperly discriminate based on sexual orientation, while the Grimsley plaintiffs
assert improper discrimination based on both sexual orientation and sex (that is,
gender). The Brenner plaintiffs assert additional claims based on the First
Amendments right of association, the Establishment Clause, and the Supremacy
Clause.
D. The Challenged Provisions
The Brenner and Grimsley plaintiffs all challenge Article I, 27, of the
Florida Constitution, and Florida Statutes 741.212. The Brenner plaintiffs also
challenge Florida Statutes 741.04(1).
Article I, 27 provides:
Marriage defined.Inasmuch as marriage is the legal
union of only one man and one woman as husband and wife, no
other legal union that is treated as marriage or the substantial
equivalent thereof shall be valid or recognized.
Florida Statutes 741.212 provides:
(1) Marriages between persons of the same sex entered
into in any jurisdiction, whether within or outside the State of
Florida, the United States, or any other jurisdiction, either
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domestic or foreign, or any other place or location, or

relationships between persons of the same sex which are treated
as marriages in any jurisdiction, whether within or outside the
State of Florida, the United States, or any other jurisdiction,
either domestic or foreign, or any other place or location, are
not recognized for any purpose in this state.
(2) The state, its agencies, and its political subdivisions
may not give effect to any public act, record, or judicial
proceeding of any state, territory, possession, or tribe of the
United States or of any other jurisdiction, either domestic or
foreign, or any other place or location respecting either a
marriage or relationship not recognized under subsection (1) or
a claim arising from such a marriage or relationship.
(3) For purposes of interpreting any state statute or rule,
the term marriage means only a legal union between one man
and one woman as husband and wife, and the term spouse
applies only to a member of such a union.
Florida Statutes 741.04(1) provides:
No county court judge or clerk of the circuit court in this
state shall issue a license for the marriage of any person . . .
unless one party is male and the other party is female.
E. The Pending Motions
In each case, the plaintiffs have moved for a preliminary injunction barring
enforcement of the challenged provisions. The defendants oppose the motions and
assert that if a preliminary injunction is granted, it should be stayed pending
appeal.
In each case, the state defendants have moved to dismiss the amended
complaint. They do not contest the standing of most of the plaintiffs to bring these
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cases. They acknowledge that the Secretary of the Department of Management

Services is a proper defendant, but they assert that the Governor, Attorney General,
and Surgeon General are not. They say these defendants have no role in enforcing
the challenged provisions. On the merits, the state defendants say the states samesex marriage provisions are constitutional.
The Clerk of Court has moved to dismiss the Brenner amended complaint
the only one in which the Clerk is named as a defendanton the ground that he
has done nothing more than comply with state law, that he therefore is not a proper
defendant, and that, in any event, the states same-sex marriage provisions are
constitutional.
All parties have agreed that these motions should be decided based on the
existing record, without further evidence.
II. Standing
The plaintiffs whose financial interests are directly affected by the Florida
marriage provisions plainly have standing to challenge them. This apparently
includes most or all of the individual plaintiffs. The effect is the most direct for
current or former public employees who are unable to obtain for themselves or
their spouses the same benefitsprimarily retirement benefits and healthcare
coverageas are available to opposite-sex couples. The defendants do not
challenge the plaintiffs standing in this respect.
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The defendants question only Ms. Goldbergs standing to pursue a change in

Ms. Goldwassers death certificate or to seek social-security benefits based on their
marriage. But Ms. Goldberg has standing on each basis. The death certificate says
Ms. Goldwasser was never married and, in the blank for listing a spouse, says
none. That a spouse would find this offensive and seek to have it changed is
neither surprising nor trivial. Ms. Goldberg has a sufficient personal stake in
pursuing this relief to have standing.
III. The Proper Defendants
Under Ex parte Young, 209 U.S. 123 (1908), a plaintiff may pursue a federal
constitutional claim for prospective relief against an official-capacity state
defendant who is responsible for the challenged action or who, by virtue of his
office, has some connection with the unconstitutional act or conduct complained
of. Luckey v. Harris, 860 F.2d 1012, 1015-16 (11th Cir. 1988) (quoting Ex parte
Young, 209 U.S. at 157).
The state defendants acknowledge that the Secretary meets this test. The
Secretary administers the retirement and healthcare provisions that apply to current
and former state employees. As required by the challenged provisions, the
Secretary refuses to recognize same-sex marriages. The plaintiffs assert that the
Secretary thus violates the United States Constitution.
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The Surgeon General also meets the test. The Surgeon General is the head
of the Department of Health. The Surgeon General thus must execute the powers,
duties, and functions of the department. Fla. Stat. 20.05(1)(a). Those functions
include establishing the official form for death certificates, which must include the
decedents marital status. Id. 382.008(6). The official form includes a blank
for listing the decedents spouse. The Department may change a death certificates
marital information when the name of a surviving spouse is omitted or based on
an order from a court of competent jurisdiction. Id. 382.016(2). This is a court
of competent jurisdiction, Ms. Goldberg seeks such an order, and the person to
whom such an order should properly be directed is the Surgeon General. He is a
proper defendant in this action.
Whether the Governor and Attorney General are proper defendants is less
clear. It also makes no difference. As the state defendants acknowledge, an order
directed to the Secretaryor, for matters relating to the death certificate, to the
Surgeon Generalwill be sufficient to provide complete relief. The Eleventh
Circuit has held that a district court may dismiss claims against redundant officialcapacity defendants. See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.
1991) (approving the dismissal of official-capacity defendants whose presence was
merely redundant to the naming of an institutional defendant). The prudent course
here is to dismiss the Governor and Attorney General on this basis. See generally
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Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341, 345-46 (1936) (Brandeis, J.,
concurring) (setting out fundamental principles of constitutional adjudication,
including that, The Court will not anticipate a question of constitutional law in
advance of the necessity of deciding it ) (quoting earlier authorities in part); see
also Lyng v. Nw. Indian Cemetery Protective Assn, 485 U.S. 439, 445 (1988) (A
fundamental and longstanding principle of judicial restraint requires that courts
avoid reaching constitutional questions in advance of the necessity of deciding
them.), quoted with approval in United States v. $242,484.00, 318 F.3d 1240,
1242 n.2 (11th Cir. 2003).
If it turns out later that complete relief cannot be afforded against the
Secretary and Surgeon General, any necessary and proper additional defendant can
be added.
Finally, the Clerk of Court for Washington County is plainly a proper
defendant. The Clerk denied a marriage license to Mr. Schlairet and Mr. Russ and
would properly be ordered to issue the license if they prevail on their claims in this
action. That the Clerk was acting in accordance with state law does not mean he is
not a proper defendant. Quite the contrary. The whole point of Ex parte Young is
to provide a remedy for unconstitutional action that is taken under state authority,
including, as here, a state constitution or laws.
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In sum, this action will go forward against the Secretary, the Surgeon
General, and the Clerk. The claims against the Governor and Attorney General
will be dismissed without prejudice as redundant.
IV. The Merits
The Fourteenth Amendment provides, among other things, that a state shall
not deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
The amendment was added to the Constitution after the Civil War for the express
purpose of protecting rights against encroachment by state governments. By that
time it was well established that a federal court had the authorityindeed, the
dutyto strike down an unconstitutional statute when necessary to the decision in
a case or controversy properly before the court. The State of Florida has itself
asked federal courts to do so. So the suggestion that this is just a federalism case
that the states laws are beyond review in federal courtis a nonstarter.
That this case involves marriage does not change this result. The Supreme
Court recognized this in Loving v. Virginia, 388 U.S. 1 (1967). There the Court
struck down a Virginia statute that prohibited interracial marriage. The defendants
say interracial marriage is different from same-sex marriage. But on the question
of whether a federal court has the authorityindeed, the dutyto strike down a
state marriage provision if it conflicts with a partys rights under the Fourteenth
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Amendment, Loving is on point and controlling. So are Zablocki v. Redhail, 434

U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 (1987), where the Court
invalidated state provisions restricting marriage. Further, in Windsor, the Court
saidthree timesthat a states interest in defining and regulating marital
relations is subject to constitutional guarantees. 133 S. Ct. at 2691, 2692. In
short, it is settled that a states marriage provisions must comply with the
Fourteenth Amendment and may be struck down when they do not.
It bears noting, too, that the defendants invocation of Floridas prerogative
as a state to set the rules that govern marriage loses some of its force when the
issue raised by 20 of the 22 plaintiffs is the validity of marriages lawfully entered
in other jurisdictions. The defendants do not explain why, if a states laws on
marriage are indeed entitled to such deference, the State of Florida is free to ignore
the decisions of other equally sovereign states, including New York, Iowa, and
Massachusetts.
In sum, the critical issue is whether the challenged Florida provisions
contravene the plaintiffs rights to due process and equal protection. The general
framework that applies to such claims is well settled.
First, the Due Process Clause includes a substantive elementa check on a
states authority to enact certain measures regardless of any procedural safeguards
the state may provide. Substantive due process is an exceedingly narrow concept
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that protects only fundamental rights. When governmental action impinges on

fundamental rights and is challenged in a case properly before a court, the court
reviews the governmental action with strict scrutiny. Whether some actions that
impinge on fundamental rights are properly subject to a lower level of scrutiny
sometimes labeled intermediate scrutinyis unsettled and ultimately makes no
difference here.
Second, under the Equal Protection Clause, a court applies strict scrutiny to
governmental actions that impinge on fundamental rights or employ suspect
classifications. Most other governmental actions are subject to only rational-basis
review. Some actions are properly subject to intermediate equal-protection
scrutiny, but the scope of actions subject to intermediate scrutiny is unsettled and
ultimately makes no difference here.
So the first step in analyzing the merits in these cases, as both sides agree, is
determining whether the right asserted by the plaintiffs is a fundamental right as
that term is used in due-process and equal-protection jurisprudence. Almost every
court that has addressed the issue since the Supreme Courts 2013 decision in
Windsor has said the answer is yes. That view is correct.
The right asserted by the plaintiffs is the right to marry. The Supreme Court
has repeatedly recognized that this is a fundamental right. Thus, for example, in
Loving, the Court held that Virginias ban on interracial marriage violated the Due
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Process and Equal Protection Clauses, even though similar bans were widespread
and of long standing. The Court did not cast the issue as whether the right to
interracial marriage was fundamental. See Kitchen v. Herbert, 961 F. Supp. 2d
1181, 1202 (D. Utah 2013) (Instead of declaring a new right to interracial
marriage, the Court held [in Loving] that individuals could not be restricted from
exercising their existing right to marry on account of the race of their chosen
partner.).
Similarly, in Zablocki, the Court labeled the right to marry fundamental and
struck down, on equal-protection grounds, a Wisconsin statute that prohibited
residents with unpaid court-ordered child-support obligations from entering new
marriages. The Court did not ask whether the right not to pay child support was
fundamental, or whether the right to marry while owing child support was
fundamental; the Court started and ended its analysis on this issue with the
accepted principle that the right to marry is fundamental.
The Court took the same approach in Turner. A Missouri regulation
prohibited prisoners from marrying other than for a compelling reason. The Court
said the states interests in regulating its prisons were insufficient to overcome the
prisoners fundamental right to marry. The Court did not ask whether there is a
fundamental right to marry while in prison, as distinguished from the more general
right to marry.
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In other cases, too, the Court has said the right to marry is fundamental.
Indeed, the Court has sometimes listed marriage as the very paradigm of a
fundamental right. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720 (1997)
(refusing to recognize assisted suicide as a fundamental right, listing rights that do
qualify as fundamental, and placing the right to marry first on the list); Griswold v.
Connecticut, 381 U.S. 479, 48586 (1965) (including the right to marry in the
fundamental right to privacy); Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
535, 541 (1942) (labeling marriage one of the basic civil rights of man); Meyer
v. Nebraska, 262 U.S. 390, 399 (1923) (saying that [w]ithout doubt the right to
marry is within the liberty protected by the Due Process Clause); Maynard v. Hill,
125 U.S. 190, 205 (1888) (labeling marriage the most important relation in life).
Perhaps recognizing these authorities, the defendants do not, and could not
plausibly, assert that the right to marry is not a fundamental right for due-process
and equal-protection purposes. Few rights are more fundamental. The defendants
assert, though, that the right at issue in the cases at bar is the right to marry a
person of the same sex, not just the right to marry. In support of this assertion, the
defendants cite a principle derived from Glucksberg: due-process analysis requires
a careful description of the asserted fundamental liberty interest. 521 U.S. at
721 (citing Reno v. Flores, 507 U.S. 292, 302 (1993)).
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A careful description means only an accurate one, determined at the

appropriate level of generality. Indeed, Glucksberg itself said the right to marry is
fundamental, describing the right at that level of generality. 521 U.S. at 720.
And Loving, Zablocki, and Turner applied the right to marry at that level of
generality, without asking whether the specific application of the right to marry
to interracial marriage or debtor marriage or prisoner marriagewas fundamental
when viewed in isolation.
This approach makes sense. The point of fundamental-rights analysis is to
protect an individuals liberty against unwarranted governmental encroachment.
So it is a two-step analysis: is the right fundamental, and, if so, is the government
encroachment unwarranted (that is, does the encroachment survive strict scrutiny)?
At the first step, the right to marryto choose ones own spouseis just as
important to an individual regardless of whom the individual chooses to marry. So
the right to marry is just as important when the proposed spouse is a person of the
same race and different sex (as in the most common marriages, those that have
been approved without controversy for the longest period), or a person of a
different race (as in Loving), or a person with unpaid child-support obligations (as
in Zablocki), or a prisoner (as in Turner), or a person of the same sex (as in the
cases at bar).
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It is only at the second stepon the question of whether the government

encroachment is unwarrantedthat the nature of the restriction becomes critical.
The governmental interest in overriding a persons fundamental right to marry may
be different in these different situationsthat certainly was the case in Zablocki
and Turner, for examplebut that is a different issue from whether the right itself
is fundamental. The right to marry is as fundamental for the plaintiffs in the cases
at bar as for any other person wishing to enter a marriage or have it recognized.
That leaves for analysis the second step, the application of strict scrutiny. A
state may override a fundamental right through measures that are narrowly tailored
to serve a compelling state interest. A variety of justifications for banning samesex marriages have been proffered by these defendants and in the many other cases
that have plowed this ground since Windsor. The proffered justifications have all
been uniformly found insufficient. Indeed, the states asserted interests would fail
even intermediate scrutiny, and many courts have said they would fail rationalbasis review as well. On these issues the circuit decisions in Bostic, Bishop, and
Kitchen are particularly persuasive. All that has been said there is not repeated
here.
Just one proffered justification for banning same-sex marriage warrants a
further note. The defendants say the critical feature of marriage is the capacity to
procreate. Same-sex couples, like opposite-sex couples and single individuals, can
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adopt, but same-sex couples cannot procreate. Neither can many opposite-sex
couples. And many opposite-sex couples do not wish to procreate.
Florida has never conditioned marriage on the desire or capacity to
procreate. Thus individuals who are medically unable to procreate can marry in
Florida. If married elsewhere, their marriages are recognized in Florida. The same
is true for individuals who are beyond child-bearing age. And individuals who
have the capacity to procreate when married but who voluntarily or involuntarily
become medically unable to procreate, or pass the age when they can do so, are
allowed to remain married. In short, the notion that procreation is an essential
element of a Florida marriage blinks reality.
Indeed, defending the ban on same-sex marriage on the ground that the
capacity to procreate is the essence of marriage is the kind of position that, in
another context, might support a finding of pretext. It is the kind of argument that,
in another context, might be accompanied by a suspicion of mendacity. St.
Marys Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). The undeniable truth is
that the Florida ban on same-sex marriage stems entirely, or almost entirely, from
moral disapproval of the practice. Properly analyzed, the ban must stand or fall on
the proposition that the state can enforce that moral disapproval without violating
the Fourteenth Amendment.
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The difficulty for the defendants is that the Supreme Court has made clear
that moral disapproval, standing alone, cannot sustain a provision of this kind.
Windsor so indicates. Further, in Bowers v. Hardwick, 478 U.S. 186 (1986), the
Court upheld a state law prohibiting sodomy, basing the decision on the states
prerogative to make moral choices of this kind. But later, in Lawrence v. Texas,
539 U.S. 558 (2003), the Court revisited the issue, struck down a statute
prohibiting gay sex, and expressly overruled Bowers. In his Lawrence dissent,
Justice Scalia made precisely the point set out abovethat a ban on same-sex
marriage must stand or fall on the proposition that the state can enforce moral
disapproval of the practice without violating the Fourteenth Amendment. Justice
Scalia put it this way: State laws against . . . same-sex marriage . . . are likewise
sustainable only in light of Bowers validation of laws based on moral choices.
Lawrence, 539 U.S. at 590 (Scalia, J., dissenting).
Had we begun with a clean slate, one might have expected the defendants to
lead off their arguments in this case by invoking the states moral disapproval of
same-sex marriage. But the defendants did not start there, undoubtedly because
any such defense would run headlong into the Supreme Courts decisions in
Lawrence and Windsor. See also Romer v. Evans, 517 U.S. 620 (1996) (striking
down a state constitutional amendment that discriminated based on sexual
orientation). Each of these decisions rejected moral disapproval of same-sex
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orientation as a legitimate basis for a law. See also Bowers, 478 U.S. at 216
(Stevens, J., dissenting) ([T]he fact that the governing majority in a State has
traditionally viewed a particular practice as immoral is not a sufficient reason for
upholding a law prohibiting the practice; neither history nor tradition could save a
law prohibiting miscegenation from constitutional attack.).
In short, we do not write on a clean slate. Effectively stripped of the moraldisapproval argument by binding Supreme Court precedent, the defendants must
fall back on make-weight arguments that do not withstand analysis. Floridas
same-sex marriage provisions violate the Due Process and Equal Protection
Clauses.
In reaching this conclusion, I have not overlooked the defendants reliance
on Baker v. Nelson, 409 U.S. 810 (1972), and Lofton v. Secy of Dept of Children
& Family Servs., 358 F.3d 804 (11th Cir. 2004).
In Baker, the Supreme Court dismissed for want of a substantial federal
question an appeal from a state supreme court decision rejecting a constitutional
challenge to the states ban on same-sex marriage. Such a summary disposition
binds lower federal courts unless doctrinal developments in the Supreme Court
undermine the decision. See Hicks v. Miranda, 422 U.S. 332, 344-45 (1975)
(holding that a summary disposition binds lower courts except when doctrinal
developments indicate otherwise) (quoting Port Auth. Bondholders Protective
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Comm. v. Port of New York Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967) (Friendly,
J.)). The Eleventh Circuit has recognized this principle:
Doctrinal developments need not take the form of an
outright reversal of the earlier case. The Supreme Court may
indicate its willingness to reverse or reconsider a prior opinion
with such clarity that a lower court may properly refuse to
follow what appears to be binding precedent. Even less clearcut expressions by the Supreme Court can erode an earlier
summary disposition because summary actions by the Court do
not carry the full precedential weight of a decision announced
in a written opinion after consideration of briefs and oral
argument. The Court could suggest that a legal issue once
thought to be settled by a summary action should now be
treated as an open question, and it could do so without directly
mentioning the earlier case. At that point, lower courts could
appropriately reach their own conclusions on the merits of the
issue.
Hardwick v. Bowers, 760 F.2d 1202 (11th Cir. 1985) (citations omitted), revd on
other grounds, Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence
v. Texas, 539 U.S. 558 (2003).
Every court that has considered the issue has concluded that the intervening
doctrinal developmentsas set out in Lawrence, Romer, and Windsorhave
sapped Bakers precedential force.
In Lofton, the plaintiffs challenged a Florida statute that prohibited adoptions
by gays. Circuit precedent held, and both sides agreed, that adoption was not a
fundamental right. The court said sexual orientation was not a suspect
classification. With no fundamental right and no suspect classification, the court
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applied only rational-basis scrutiny, not strict or intermediate scrutiny. And the
court said that, because of the primacy of a childs welfare, the state can make
classifications for adoption purposes that would be constitutionally suspect in other
arenas. 358 F.3d at 810. The court criticized the Supreme Courts Lawrence
decision, 358 F.3d at 816-17, and apparently gave it little or no sway. The court
upheld the Florida statute. The statutethe last in the nation banning gay
adoptionwas later struck down by Floridas own courts. See Florida Dept of
Children & Families v. Adoption of X.X.G., 45 So. 3d 79, 81 (Fla. 3d DCA 2010).
The plaintiffs argue, with considerable force, that Lofton does not square
with Lawrence, Romer, and Windsor. But Lofton is the law of the circuit. It
establishes that, at least for now, sexual orientation is not a suspect classification in
this circuit for equal-protection purposes. But Lofton says nothing about whether
marriage is a fundamental right. Lofton does not change the conclusion that
Floridas same-sex marriage provisions violate the Due Process and Equal
Protection Clauses.
The institution of marriage survived when bans on interracial marriage were
struck down, and the institution will survive when bans on same-sex marriage are
struck down. Liberty, tolerance, and respect are not zero-sum concepts. Those
who enter opposite-sex marriages are harmed not at all when others, including
these plaintiffs, are given the liberty to choose their own life partners and are
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shown the respect that comes with formal marriage. Tolerating views with which
one disagrees is a hallmark of civilized society.
V. Preliminary Injunction
As a prerequisite to a preliminary injunction, a plaintiff must establish a
substantial likelihood of success on the merits, that the plaintiff will suffer
irreparable injury if the injunction does not issue, that the threatened injury
outweighs whatever damage the proposed injunction may cause a defendant, and
that the injunction will not be adverse to the public interest. See, e.g., Charles H.
Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir. 2005); Siegel v.
LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc).
For the reasons set out above, the plaintiffs are likely to prevail on the
merits. The plaintiffs also meet the other requirements for a preliminary
injunction. The plaintiffs will suffer irreparable harm if an injunction is not issued.
Indeed, the ongoing unconstitutional denial of a fundamental right almost always
constitutes irreparable harm. The threatened injury to the plaintiffs outweighs
whatever damage the proposed injunction may cause the defendants, that is, the
state. And a preliminary injunction will not be adverse to the public interest.
Vindicating constitutional rights almost always serves the public interest.
This order requires the plaintiffs to give security for costs in a modest
amount. Any party may move at any time to adjust the amount of security.
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VI. Stay
A four-part test governs stays pending appeal: (1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S.
770, 776 (1987). See also Venus Lines Agency v. CVG Industria Venezolana De
Aluminio, C.A., 210 F.3d 1309, 1313 (11th Cir. 2000) (applying the same test).
The four-part test closely tracks the four-part test governing issuance of a
preliminary injunction. Because the governing four-part tests are so similar, it is a
rare case in which a preliminary injunction is properly stayed pending appeal. This
is the rare case.
As set out above, the states interest in refusing to allow or recognize the
plaintiffs same-sex marriages is insufficient to override the plaintiffs interest in
vindicating their constitutional rights. The public interest does not call for a
different result. So the preliminary injunction will issue, eliminating any delay in
this court, and allowing an enjoined party to go forward in the Eleventh Circuit.
But at the stay-pending-appeal stage, an additional public interest comes into
play. There is a substantial public interest in implementing this decision just
oncein not having, as some states have had, a decision that is on-again, off-
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again. This is so for marriages already entered elsewhere, and it is more clearly so
for new marriages. There is a substantial public interest in stable marriage laws.
Indeed, there is a substantial public interest in allowing those who would enter
same-sex marriages the same opportunity for due deliberation that opposite-sex
couples routinely are afforded. Encouraging a rush to the marriage officiant, in an
effort to get in before an appellate court enters a stay, serves the interests of
nobody.
A stay thus should be entered for long enough to provide reasonable
assurance that the opportunity for same-sex marriages in Florida, once opened, will
not again close. The stay will remain in effect until stays have been lifted in
Bostic, Bishop, and Kitchen, and for an additional 90 days to allow the defendants
to seek a longer stay from this court or a stay from the Eleventh Circuit or Supreme
Court.
There is one exception to the stay. The exception is the requirement to
correct Ms. Goldwassers death certificate. The correction is important to Ms.
Goldberg. There is little if any public interest on the other side of the scale. There
is no good reason to further deny Ms. Goldberg the simple human dignity of being
listed on her spouses death certificate. Indeed, the states refusal to let that
happen is a poignant illustration of the controversy that brings us here.
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VII. Filing
Because this is an appealable order, it will be filed separately in each of the
consolidated cases. Any notice of appeal must be filed separately in each case to
which it applies.
VIII. Conclusion
The Supreme Court has repeatedly recognized the fundamental right to
marry. The Court applied the right to interracial marriage in 1967 despite state
laws that were widespread and of long standing. Just last year the Court struck
down a federal statute that prohibited federal recognition of same-sex marriages
lawfully entered in other jurisdictions. The Florida provisions that prohibit the
recognition of same-sex marriages lawfully entered elsewhere, like the federal
provision, are unconstitutional. So is the Florida ban on entering same-sex
marriages.
For the reasons set out in this order,
IT IS ORDERED:
1.
The state defendants motion to dismiss, ECF No. 50 in Case No.
4:14cv107, is granted in part and denied in part. All claims against the defendant
Governor and Attorney General are dismissed without prejudice as redundant. I do
not direct the entry of judgment under Federal Rule of Civil Procedure 54(b). In
all other respects the motion to dismiss is denied.
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2.
The defendant Clerk of Courts motion to dismiss, ECF No. 49 in
Case No. 4:14cv107, is denied.

3.
The plaintiffs motions for a preliminary injunction, ECF Nos. 2, 11,
and 42 in Case No. 4:14cv107, are granted against the remaining defendants.
4.
The defendant Secretary of the Florida Department of Management
Services and the defendant Florida Surgeon General must take no steps to enforce
or apply these Florida provisions on same-sex marriage: Florida Constitution,
Article I, 27; Florida Statutes 741.212; and Florida Statutes 741.04(1). The
preliminary injunction set out in this paragraph will take effect upon the posting of
security in the amount of $500 for costs and damages sustained by a party found to
have been wrongfully enjoined. The preliminary injunction binds the Secretary,
the Surgeon General, and their officers, agents, servants, employees, and
attorneysand others in active concert or participation with any of themwho
receive actual notice of this injunction by personal service or otherwise.
5.
The defendant Florida Surgeon General must issue a corrected death
certificate for Carol Goldwasser showing that at the time of her death she was
married to Arlene Goldberg. The deadline for doing so is the later of (a)
September 22, 2014, or (b) 14 days after all information is provided that would be
required in the ordinary course of business as a prerequisite to listing an oppositesex spouse on a death certificate. The preliminary injunction set out in this
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paragraph will take effect upon the posting of security in the amount of $100 for
costs and damages sustained by a party found to have been wrongfully enjoined.
The preliminary injunction binds the Surgeon General and his officers, agents,
servants, employees, and attorneysand others in active concert or participation
with any of themwho receive actual notice of this injunction by personal service
or otherwise.
6.
The defendant Clerk of Court of Washington County, Florida, must
issue a marriage license to Stephen Schlairet and Ozzie Russ. The deadline for
doing so is the later of (a) 21 days after any stay of this preliminary injunction
expires or (b) 14 days after all information is provided and all steps are taken that
would be required in the ordinary course of business as a prerequisite to issuing a
marriage license to an opposite-sex couple. The preliminary injunction set out in
this paragraph will take effect upon the posting of security in the amount of $100
for costs and damages sustained by a party found to have been wrongfully
enjoined. The preliminary injunction binds the Clerk of Court and his officers,
agents, servants, employees, and attorneysand others in active concert or
participation with any of themwho receive actual notice of this injunction by
personal service or otherwise.
The preliminary injunctions set out in paragraphs 4 and 6 are stayed and will not
take effect until 91 days after stays have been denied or lifted in Bostic v. Schaefer,
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Nos. 141167, 141169, 141173, 2014 WL 3702493 (4th Cir. July 28, 2014);
Bishop v. Smith, Nos. 145003, 145006, 2014 WL 3537847 (10th Cir. July 18,
2014); and Kitchen v. Herbert, No. 134178, 2014 WL 2868044 (10th Cir. June
25, 2014). The stay may be lifted or extended by further order.
SO ORDERED on August 21, 2014.
s/Robert L. Hinkle
United States District Judge
APPENDIX
B
District Court Order Denying the Motions to Alter
the Stay, dated November 5, 2014
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Plaintiffs,
v.

Defendants.
_________________________________/
Plaintiffs,
v.

Defendants.
_________________________________/
ORDER DENYING THE MOTIONS TO ALTER THE STAY
A stay of the preliminary injunction entered in these consolidated cases is
currently in effect through January 5, 2015. Each side has moved to alter the
staythe plaintiffs to end it sooner, the defendants to extend it until their appeal is
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resolved. This order denies the motions, leaving the stay in effect through January
5.
I
The issue on the merits is the constitutionality of Floridas refusal to allow
same-sex marriages or to recognize same-sex marriages lawfully entered
elsewhere. The order of August 21, 2014, held the challenged Florida provisions
unconstitutional.
The order relied in part on the Supreme Courts decision in United States v.
Windsor, 133 S. Ct. 2675 (2013), and three circuit decisions that were rendered
after Windsor. The circuit decisions were Bostic v. Schaefer, 760 F.3d 352 (4th
Cir. 2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014); and Kitchen v.
Herbert, 755 F.3d 1193 (10th Cir. 2014). Now two more circuits have reached the
same result. See Latta v. Otter, No. 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7,
2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014).
The August 21 order granted a preliminary injunction for the plaintiffs but
stayed the order in substantial part. The order said:
A four-part test governs stays pending appeal: (1) whether the
stay applicant has made a strong showing that he is likely to succeed
on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4) where the public
interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). See
also Venus Lines Agency v. CVG Industria Venezolana De Aluminio,
C.A., 210 F.3d 1309, 1313 (11th Cir. 2000) (applying the same test).
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The four-part test closely tracks the four-part test governing

issuance of a preliminary injunction. Because the governing four-part
tests are so similar, it is a rare case in which a preliminary injunction
is properly stayed pending appeal. This is the rare case.
As set out above, the states interest in refusing to allow or
recognize the plaintiffs same-sex marriages is insufficient to override
the plaintiffs interest in vindicating their constitutional rights. The
public interest does not call for a different result. So the preliminary
injunction will issue, eliminating any delay in this court, and allowing
an enjoined party to go forward in the Eleventh Circuit.
But at the stay-pending-appeal stage, an additional public
interest comes into play. There is a substantial public interest in
implementing this decision just oncein not having, as some states
have had, a decision that is on-again, off-again. This is so for
marriages already entered elsewhere, and it is more clearly so for new
marriages. There is a substantial public interest in stable marriage
laws. Indeed, there is a substantial public interest in allowing those
who would enter same-sex marriages the same opportunity for due
deliberation that opposite-sex couples routinely are afforded.
Encouraging a rush to the marriage officiant, in an effort to get in
before an appellate court enters a stay, serves the interests of nobody.
A stay thus should be entered for long enough to provide
reasonable assurance that the opportunity for same-sex marriages in
Florida, once opened, will not again close. The stay will remain in
effect until stays have been lifted in Bostic, Bishop, and Kitchen, and
for an additional 90 days to allow the defendants to seek a longer stay
from this court or a stay from the Eleventh Circuit or Supreme Court.
Order of August 21, 2014, ECF No. 74, at 28-29.
On October 6, 2014, the Supreme Court denied certiorari in Bostic, Bishop,
and Kitchen. The stays were lifted the same day. See Bostic v. Schaefer. No. 141167, 2014 WL 4960335 (4th Cir Oct. 6, 2014); Bishop v. Smith, No. 14-5003,
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2014 WL 4960523 (10th Cir. (Oct. 6, 2014); Kitchen v. Herbert, No. 13-4178,
2014 WL 4960471 (10th Cir. Oct. 6, 2014).
The stay entered in this case on August 21, by its terms and the operation of
Federal Rule of Civil Procedure 6(a)(1)(C), remains in effect until the end of the
day on January 5, 2015. That is the first workday at least 90 days after October 6,
2014.
II
The plaintiffs assert the stay should be lifted immediately or in any event
within 7 days. This would leave the Eleventh Circuit insufficient time to make a
considered judgment on whether the stay should remain in place and thus would be
inconsistent with the public interest in implementing just once the constitutional
decision on same-sex marriage in Florida. This order denies the plaintiffs motion.
III
The defendants assert the stay should remain in effect for as long as their
appeal in these cases remains pending. But the plaintiffs have a substantial interest
in exercising their constitutional rights without undue and indefinite delay. The
public interest in implementing the constitutional decision just once is sufficient to
support the 90-day delay so that the Eleventh Circuit can consider the matter with
all deliberate speed.
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That public interest will support a longer stay only if, having considered the
matter, the Eleventh Circuit concludes that the defendants have a substantial
likelihood of success on appeal. In light of the unbroken line of circuit decisions
striking down bans on same-sex marriage and the Supreme Courts decision to
leave those decisions intact, I conclude that a longer stay is not warranted.
The decision not to extend the stay is consistent with the Supreme Courts
treatment of this issue. The stays the Supreme Court put into effect prior to
October 6 were vacated on that day. Since October 6, no Supreme Court stay has
been in effect for more than two days, and no Supreme Court stay is now in place.
See Parnell v. Hamby, No. 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014)
(denying a stay of a district-court decision holding a states same-sex marriage ban
unconstitutional); Otter v. Latta, No. 14A374, 2014 WL 5094190 (U.S. Oct. 10,
2014) (denying a stay of a circuit-court decision holding a states same-sex
marriage ban unconstitutional and vacating a stay entered two days earlier). No
circuit that has decided the same-sex marriage issue on the merits has stayed its
ruling.
One other matter deserves mention. The defendants say I should stay this
federal decision so that the Florida Supreme Court can rule in pending state cases.
But the issue here is a federal constitutional issue. The Florida Supreme Court has
the last word on state law, but here state law is clear; there is no dispute over state
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law. The issue here arises under the United States Constitution. The United States
Supreme Court will make the final ruling that definitively resolves this federal
constitutional issue. And if the United States Supreme Court does not take up the
issue, the final ruling that governs in Florida (and in Alabama and Georgia) will be
the decision of the United States Court of Appeals for the Eleventh Circuit.
Waiting for a decision of the Florida Supreme Court will serve no purpose.
IV
For these reasons,
IT IS ORDERED:
The motions to alter the stay, ECF Nos. 87, 88, and 92, are DENIED. The
stay remains in place and will expire at the end of the day on January 5, 2015.
SO ORDERED on November 5, 2014.
s/Robert L. Hinkle
APPENDIX
C
Eleventh Circuit Order Denying
Further Stay, dated December 3, 2014

Case: 14-14061 Date Filed: 12/03/2014 Page: 1 of 2
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
_________________________
No. 14-14061-AA
_________________________
D.C. Docket No. 4:14-cv-107-RH/CAS
JAMES DOMER BRENNER, et al.,
Plaintiffs - Appellees,
versus
JOHN H. ARMSTRONG, et al.,
Defendants - Appellants.
_________________________
No. 14-14066-AA
_________________________
D.C. Docket No. 4:14-cv-138-RH/CAS
Plaintiffs - Appellees,
versus
JOHN H. ARMSTRONG, et al.,
Defendants - Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Florida
________________________
Before: HULL, WILSON, and JORDAN, Circuit Judges.

BY THE COURT:
On November 18, 2014, the Appellants in the above appeals, the Secretary
of the Florida Department of Health, the Secretary of the Florida Department of
Management Services, and the Clerk of Court of Washington County (collectively,
Appellants), jointly filed a Motion to Extend Stay of Preliminary Injunctions
Pending Appeal and for Expedited Treatment of This Motion (the Motion).
Appellees James Domer Brenner, et al., and Appellees Sloan Grimsley, et al., filed
separate responses in opposition to the Motion.
Appellants request for expedited review of the Motion is granted. Having
reviewed and fully considered the Motion, the parties briefs, and the orders issued
by the District Court in the proceedings below, the Court hereby denies
Appellants Motion. The stay of preliminary injunctions entered by the District
Court expires at the end of the day on January 5, 2015.
APPENDIX B

Appeal Nos. 14-14061-AA, 14-14066-AA

Brenner v. Secy, Fla. Dept of Health
Grimsley v. Secy Dept of Health
CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT
Appellants Secretary of the Florida Department of Health; Secretary of the
Florida Department of Management Services; and Clerk of the Court and
Comptroller for Washington County, Florida; pursuant to 11th Cir. R. 26.1-1,
certify that the following persons and entities have an interest in the outcome of
this case and/or appeal:
American Civil Liberties Union of Florida, Inc., The
American Civil Liberties Union Foundation, Inc.
American Civil Liberties Union Foundation of Florida, Inc., The
Albu, Joyce
Andrade, Carlos
Armstrong, Dr. John H.
Ausley & McMullen, P.A.
Bazzell, Harold
Bledsoe, Schmidt & Wilkinson, P.A.
Bondi, Pamela Jo
Brenner, James Domer
C-1 of 4

Appeal Nos. 14-14061-AA, 14-14066-AA

Collier, Bob
Cooper, Leslie
Crampton, Stephen M.
Del Hierro, Juan
DeMaggio, Bryan E.
Emmanuel, Stephen C.
Fitzgerald, John
Florida Conference of Catholic Bishops, Inc.
Florida Family Action, Inc.
Gantt, Thomas, Jr.
Goldberg, Arlene
Goldwasser, Carol (deceased)
Goodman, James J., Jr.
Graessle, Jonathan W.
Grimsley, Sloan
Hankin, Eric
Hinkle, Hon. Robert L.
Hueso, Denise
C-2 of 4

Appeal Nos. 14-14061-AA, 14-14066-AA

Humlie, Sarah
Hunziker, Chuck
Jacobson, Samuel
Jacobson Wright & Sussman, P.A.
Jones, Charles Dean
Kachergus, Matthew R.
Kayanan, Maria
Liberty Counsel, Inc.
Liberty Counsel Action, Inc.
Loupo, Robert
Mihet, Horatio G.
Milstein, Richard
Myers, Lindsay
Newson, Sandra
Nichols, Craig J.
Podhurst Orseck, P.A.
Rosenthal, Stephen F.
Russ, Ozzie
C-3 of 4

Appeal Nos. 14-14061-AA, 14-14066-AA

Save Foundation, Inc.

Schlairet, Stephen
Scott, Rick
Sevier, Chris
Sheppard, White, Kachergus and DeMaggio, P.A.
Sheppard, William J.
Stampelos, Hon. Charles A.
Staver, Anita L.
Staver, Mathew D.
Stevenson, Benjamin James
Tanenbaum, Adam S.
Tilley, Daniel B.
Ulvert, Christian
White, Elizabeth L.
Winsor, Allen C.
C-4 of 4


Nos. 14-14061-AA,
14-14066-AA
JAMES BRENNER, et al.,
Appellees,
Appellees,
v.
v.
SECY, FLA. DEPT OF HEALTH, et al.
SECY, FLA. DEPT OF HEALTH and

SECY, FLA. DEPT OF MGMT. SERVS.,
Appellants.
Appellants.
APPELLANTS MOTION TO EXTEND STAY OF PRELIMINARY
INJUNCTIONS PENDING APPEAL, AND FOR EXPEDITED
TREATMENT OF THIS MOTION
Appellants, the Secretary of the Florida Department of Health (Health
Secretary), the Secretary of the Florida Department of Management Services
(DMS Secretary), and the Clerk of Court of Washington County (collectively,
the Enjoined Officials), pursuant to Federal Rule of Appellate Procedure 8(a),
move to stay the preliminary injunctions pending appeal.
INTRODUCTION
The issue in these appeals is whether the Fourteenth Amendment requires
Florida to recognize same-sex marriages. The district court held that it did, and it
preliminarily enjoined enforcement of Floridas marriage laws. Exh. A. But there

is a circuit split on this issue, and this Court has yet to weigh in. Until it does, this
Court should stay the lower-court order to maintain the status quo.
As the district court correctly recognized, [t]here is a substantial public
interest . . . in not having, as some states have had, a decision that is on-again, offagain. Exh. A, Order at 28-29. This is so for marriages already entered
elsewhere, and it is more clearly so for new marriages. Id. at 29. The district court
entered a limited stay after recognizing the substantial public interest in stable
marriage laws, id., but it denied the Enjoined Officials motion to continue the
stay through these appeals, Exh. B, Order at 4-5. The district courts stay is set to
expire on January 5, 2015. Id. at 6. This Court should extend the stay because, on
balance, it is in the publics best interest to wait for an appellate decision before
implementing an order of this significance.
PROCEDURAL BACKGROUND
Earlier this year, two sets of plaintiffs filed suit in the United States District
Court for the Northern District of Florida. Each complaint challenged the
constitutionality of Floridas marriage laws, which limit the definition and
recognition of marriage to the legal union of one man and one woman.
The plaintiffs sought relief against the Health Secretary based on his
authority to issue and amend certifications of death that reflect marital status, and
they sought relief against the DMS Secretary based on his authority to manage

Floridas retirement and pension plans, which in part provide specific benefits
based on marital status. Two plaintiffs sought relief against the Clerk of Court
based on his authority to issue marriage licenses in Washington County. See
generally Exh. A.
On August 21, 2014, the district court entered identical preliminary
injunctions in the consolidated cases. Exh. A. The injunctions barred the
Secretaries from enforcing Floridas marriage laws and required the Clerk of Court
to issue a marriage license to two of the plaintiffs. Id., Order at 31-32. The
Enjoined Officials appealed.
The district court stayed its injunctions (except regarding one amended death
certificate) until 91 days following the denial or lifting of stays in three federal
circuit court decisionsBostic v. Schaefer (4th Cir.), Bishop v. Smith (10th Cir.)
and Kitchen v. Herbert (10th Cir.). Exh. A, Order at 32-33. The stays in Bostic,
Bishop, and Kitchen expired or were lifted after the United States Supreme Court
denied certiorari petitions in those cases on October 6, so the current stay is set to
expire on January 5, 2015 (91 days later). Exh. B, Order at 4, 6.
Both sides moved to modify the stay. The plaintiffs moved to lift the stay
almost immediately. Exh. B, Order at 1, 4. The Enjoined Officials opposed those
motions and asked the district to extend its stay beyond January 5, 2015, and to
keep it in place until this Court resolves these appeals. Exh. B, Order at 1-2, 4. The

district court denied all the requests and left the original stay expiration date in
place. Id. at 2, 6. According to its order, the public interest is sufficient to support
the 90-day delay so that the Eleventh Circuit can consider the matter with all
deliberate speed. Id. at 4.
The district court stated that the public interest will support a longer stay
only if, having considered the matter, the Eleventh Circuit concludes that the
defendants have a substantial likelihood of success on appeal. In light of the
unbroken line of circuit decisions striking down bans on same-sex marriage and
the Supreme Courts decision to leave those decisions intact, I conclude that a
longer stay is not warranted. Exh. B, Order at 5.
On November 6, 2014, that unbroken line of circuit decisions was broken
when the Sixth Circuit upheld state marriage laws like Floridas. See DeBoer v.
Snyder, Case No. 14-1341, -- F.3d --, 2014 WL 5748990 (6th Cir. Nov. 6, 2014).
The Enjoined Officials now ask that this Court continue the district courts stay for
the duration of this appeal.
SUBJECT-MATTER AND APPELLATE JURISDICTION
The district court entered the injunctions on August 21, 2014. Exh. A. That
court had jurisdiction pursuant to 28 U.S.C. 1331 and 1343(a), because the case
raised federal questions and alleged deprivations of constitutional rights. The
appellants timely filed notices of appeal in both cases on September 4, 2014. This

Court has jurisdiction under 28 U.S.C. 1292(a), because the orders grant
injunctions. This Court has the authority to consider this motion under Federal
Rule of Appellate Procedure 8(a)(2)(A)(ii). This motion requests the same relief
that the district court already denied. See supra.
ARGUMENT
The plaintiffs contend the Fourteenth Amendment requires states to
recognize same-sex marriage. Several Circuits (two with divided panels) recently
held that the plaintiffs view is correct. See DeBoer, 2014 WL 5748990, at *7
(collecting cases). More recently, the Sixth Circuit (also with a divided panel) held
that the States view is correct. See generally id. Other Circuits, including the Fifth
Circuit and this Court, have cases pending but have not yet ruled. See DeLeon v.
Perry, Case No. 14-50196 (5th Cir.). The issue on appeal is a serious one, and it
deserves this Courts review before the injunctions become effective.
Whether a stay is appropriate depends on the circumstances of the
particular case. Nken v. Holder, 556 U.S. 418, 433, 129 S. Ct. 1749, 1760 (2009)
(internal quotation and citation omitted). There are four factors to be considered:
(1) the likelihood of prevailing on the merits on appeal; (2) irreparable harm to the
movant if no stay is granted; (3) harm to the adverse parties if a stay is granted; and
(4) the public interest. See Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.

1986); see also Nken, 556 U.S. at 434, 129 S. Ct. at 1761. In this case, the last
factorthe overall public interestis the most important.
1.
The Public Interest:
The district court correctly recognized that [t]here is a substantial public

interest in stable marriage laws. Exh. A., Order at 29. If Floridas law is going to
change in the substantial manner plaintiffs seek, it should be only after the
plaintiffs legal claims undergo appellate review. The public interest is not served
by on-again, off-again marriage laws.
The district court also recognized the substantial public interest in allowing
those who would enter same-sex marriages the same opportunity for due
deliberation that opposite-sex couples routinely are afforded. Encouraging a rush to
the marriage officiant, in an effort to get in before an appellate court enters a stay,
serves the interests of nobody. Exh. A, Order at 29. The same is true if those
efforts are to rush to the marriage officiant before this Court (or the United States
Supreme Court) rules on the merits.
In addition, there is a substantial interest in uniformity throughout the State.
The plaintiffs sued only one clerk of court; the other 66 are not parties here. The
public interest is not served by having two sets of marriage laws in Florida.1
1
The Health and DMS Secretaries acknowledge that the injunctions as to them
would have statewide effect, because the Secretaries have statewide duties and the
order preliminarily enjoins their enforcing the marriage laws.
6

Moreover, those who did marry based on the preliminary injunction, would face
uncertainty regarding their marital status if this Court reversed.
Next, if the district courts injunction is not stayed pending appeal, the DMS
Secretary will have to reconfigure the States public employee retirement and
health insurance systems and recognize same-sex marriages performed in other
States in myriad public employment circumstances, and the Health Secretary will
have to reconfigure various aspects of the States vital records system. If the
district courts decision is overturned, those costs will be compounded by the need
to return the systems and participants to the position before the injunctions went
into effect.
The public interest led other courts to issue stays in similar circumstances.
The orders on review with the Sixth Circuit, for example, were stayed while they
were on appeal.2 See Tanco v. Haslam, Case No. 14-5297 (mem. order) (6th Cir.
Apr. 25, 2014) (granting stay pending appeal in Tennessee case after district court
denied stay; finding that public interest requires granting a stay in light of hotly
contested issue in the contemporary legal landscape and possible confusion, cost,
and inequity if State ultimately successful) (following and quoting Henry v. Himes,
No. 1:14-cv-129, 2014 WL 1512541, at *1 (S.D. Ohio Apr. 16, 2014)); DeBoer v.
The one exception to this general statement was one Ohio case in which the
order was limited to requiring two death certificates be amended to list the
decedents same-sex partners as their spouses.
7

Snyder, No. 14-1341 (mem. order) (6th Cir. Mar. 25, 2014) (Michigan case); Love
v. Beshear, 989 F. Supp. 2d 536, 550 (W.D. Ky. 2014); Bourke v. Beshear, 996 F.
Supp. 2d 542, 558 (W.D. Ky. 2014) (One judge may decide a case, but ultimately
others have a final say . . . . It is best that these momentous changes occur upon full
review, rather than risk premature implementation or confusing changes.). The
Fifth Circuit is considering the issue as well, see supra, and a stay remains in place
there, too. See DeLeon v. Perry, 975 F. Supp. 2d 632, 666 (W.D. Tex. 2014). The
public interest rationale that justified these stays applies with equal force here.
2.
The Likelihood of Success On Appeal:
Ordinarily, a party seeking a stay must show a substantial likelihood of

success on the merits. But when there is a serious legal question involved, Ruiz
v. Estelle, 650 F.2d 555, 565 (5th Cir. Unit A June 1981), and the balance of the
equities identified in the other factors weighs heavily in favor of granting the
stay, the stay may issue upon a lesser showing of a substantial case on the
merits, Garcia-Mir, 781 F.2d at 1452 (internal quotations, brackets, and citations
omitted).
An appeal defending the constitutional validity of Floridas marriage laws
certainly presents a serious legal question. And the Enjoined Officials have shown,

at the very least, a substantial case on the merits.3 First, the Supreme Courts
decision in Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37 (1972)which determined
that state laws prohibiting same-sex marriages do not give rise to a substantial
federal questionremains binding precedent. Several district courts (including one
in this circuit) and three circuit courts (the First, Sixth, and Eighth) have concluded
that Baker forecloses claims like the ones brought by the plaintiffs. See DeBoer,
2014 WL 5748990, at *5; Conde-Vidal v. Garcia-Padilla, Case No. 14-cv-1253, -F. Supp. 3d --, 2014 WL 5361987, at *6 (D.P.R. Oct. 21, 2014); Massachusetts. v.
HHS, 682 F.3d 1, 8 (1st Cir. 2012); McConnell v. Nooner, 547 F.2d 54, 55-56 (8th
Cir. 1976); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1002-03 (D. Nev. 2012),
revd sub nom. Latta v. Otter, -- F.3d --, 2014 WL 4977682 (9th Cir. Oct. 7, 2014);
Wilson v. Ake, 354 F. Supp. 2d 1298, 1304-05 (M.D. Fla. 2005). The district court
in this case concluded otherwise.
The decision in Baker is consistent with long-standing precedent that
recognizes the States virtually exclusive authority to define and regulate marriage.
The Supreme Court, as recently as last year in Windsor, reaffirmed that States had
that authority, free from federal interference. United States v. Windsor, 133 S. Ct.
2675, 2691 (2013). The district court again concluded otherwise, holding that the
Fourteenth Amendment compelled Florida to recognize same-sex marriage.
3
On November 14, the Enjoined Officials filed their joint initial brief,
presenting their arguments on the merits.
9

The district court also held that Floridas marriage laws, by precluding
same-sex marriages, violated the fundamental right to marry. But the right to
marry the Supreme Court has recognized necessarily refers to traditional
marriage. Because same-sex marriage is a relatively new concept, it is not deeply
rooted in this Nations history and tradition, so it is not a fundamental right. Cf.
Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 2268 (1997). At
bottom, neither this Court nor the Supreme Court has ever held that there is a
fundamental right to same-sex marriage.
Nor has this Court or the Supreme Court held that sexual orientation is a
suspect class. See Lofton v. Secy, Fla. Dept of Children & Family Servs., 358
F.3d 804, 817-18 (11th Cir. 2004) (rejecting recognition of a new fundamental
right to private sexual intimacy stemming from sexual orientation and rejecting
application of heightened scrutiny to classifications based on sexual orientation).
With no suspect class or fundamental right at issue, the claims are subject only to
rational basis review, which the state laws easily satisfy. See, e.g., DeBoer, 2014
WL 5748990, at *11 (finding rational basis and explaining that a State might wish
to wait and see before changing a norm that our society (like all others) has
accepted for centuries).
The plaintiffs may argue in response to all of thisas they argued below
that several circuits have agreed with their arguments. That is true, but two circuits
10

issued divided opinions, whose lengthy dissents showed, at the least, a serious
legal question. See Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014); Bostic v.
Schaefer, 760 F.3d 352 (4th Cir. 2014). And the Sixth Circuit held to the contrary,
creating a circuit split and further showing a serious issue. See supra.
The plaintiffs also may point out that the United States Supreme Court
recently denied certiorari in cases invalidating traditional marriage laws. That is
also true, but the Supreme Court has often stated [that] the denial of a writ of
certiorari imports no expression of opinion upon the merits of the case. Teague v.
Lane, 489 U.S. 288, 296, 109 S. Ct. 1060, 1067 (1989) (quoting United States v.
Carver, 260 U.S. 482, 490, 43 S. Ct. 181, 182 (1923) (Holmes, J.)); see also
Powell v. Barrett, 541 F.3d 1298, 1312 n.5 (11th Cir. 2008) (en banc) (For at least
eight decades the Supreme Court has instructed [courts], time and again, over and
over, that the denial of certiorari does not in any way or to any extent reflect or
imply any view on the merits.). Moreover, the United States Supreme Court may
review the issue now that there is a circuit split. Already, no fewer than four
petitions for certiorari have arrived at the United States Supreme Court challenging
the Sixth Circuits decision. See Petition for Writ of Certiorari, DeBoer v. Snyder
(filed Nov. 17, 2014) (No. __);4 Petition for Writ of Certiorari, Love v. Beshear,
Available at http://sblog.s3.amazonaws.com/wp-content/uploads/2014/
11/Michigan-marriage-cert-petition-11-17-14.pdf.
11

(filed Nov. 17, 2014) (No. __);5 Petition for Writ of Certiorari, Obergefell v.
Hodges (filed Nov. 14, 2014) (No. 14-556); Petition for Writ of Certiorari, Tanco
v. Haslam (filed Nov. 14, 2014) (No. 14-562).
This Court should conclude that there is a substantial case on the merits that
warrants careful consideration and a stay pending appeal.
3.
The Balance of Equities:
[S]tatutes are presumptively constitutional and, absent compelling equities

on the other side should remain in effect pending a final decision on the merits
by this Court. New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345,
1352, 98 S. Ct. 359, 364 (1977) (Rehnquist, J., in chambers) (citing Marshall v.
Barlows Inc., 429 U.S. 1347, 1348, 97 S. Ct. 776, 777 (1977) (Rehnquist, J., in
chambers)). Any time a court enjoins a State from effectuating statutes enacted by
representatives of its people, there is a significant impact on it that can tip the
balance in favor of a stay. See New Motor Vehicle Bd. of Cal., 434 U.S. at 1351,
98 S. Ct. at 363 (Rehnquist, J., in chambers); Planned Parenthood of Greater Tex.
Surgical Health Servs. v. Abbott, 134 S. Ct. 506, 506 (2013) (noting that effect on
State of court injunction against enforcement of one of its statutes is one of the two
most critical factors weighing in favor of stay) (Scalia, J., concurring in upholding
stay).
5
Available at http://sblog.s3.amazonaws.com/wp-content/uploads/2014/
11/Kentucky-marriage-joint-cert-petition-11-17-14.pdf
12

In these particular cases, where the definition of marriage is so inextricably

intertwined with the operation of whole chapters of the States code, unless the
stay remains in place pending appeal, there is considerable risk of confusion
reorienting whole systems to accommodate the preliminary injunctions while this
appeal is pending, and potentially trying to undo that reorientation if the
injunctions are reversed.
The district court found that Floridas laws violate the plaintiffs
constitutional rightsthe central issue on appeal. It is true that any denial of a
constitutional right is a real injury, but that also was true when the district court
decided, on balance in this unique case, to stay the injunctions in the first place.
There is no need for immediate relief now that alters that balance of equities away
from entering the stay and toward lifting the stay. The plaintiffs are no differently
situated than those located in the four States of the Sixth Circuit, the three States of
the Fifth Circuit, or the other two States in this Circuit. The laws in those States,
like those in Florida, limit the definition of marriage to the legal union of one man
and one woman. In the Fifth and Sixth Circuits, those laws remain in force while
federal appellate review continues. So it should be here. In fact, there is no more
urgency for any of the plaintiffs now than existed when the district court entered
the stay in August, or than when the plaintiffs filed suit earlier this year.
13

CONCLUSION
For the reasons the district court originally recognized, there is a substantial
public interest in a stay. The Enjoined Officials respectfully request that this Court
extend the district courts stay until these consolidated appeals are complete.
Because the existing stay is set to expire on January 5, 2015, the Enjoined Officials
also respectfully request expedited treatment of this Motion.
WHEREFORE, the Enjoined Officials respectfully ask that this Court
continue the district courts stay of the preliminary injunctions while the
injunctions remain on review with this Court.
14

Respectfully submitted:
PAMELA JO BONDI
ATTORNEY GENERAL
/s/ James J. Goodman, Jr.
JAMES J. GOODMAN, JR. (FBN 71877)
JEFF GOODMAN, P.A.
946 Main Street
Chipley, Florida 32428
Phone: (850) 638-9722
Fax: (850) 638-9724
office@jeffgoodmanlaw.com
Counsel for Washington County Clerk of
Court
/s/ Adam S. Tanenbaum

Solicitor General
OFFICE OF THE
ATTORNEY GENERAL
The Capitol PL01
Tallahassee, FL 32399-1050
Phone: (850) 414-3688
Fax: (850) 410-2672
Counsel for the Secretary of the Florida
Department of Health and for the Secretary
of the Florida Department of Management
Services
15

I HEREBY CERTIFY that, on this 18th day of November, 2014, a true copy
of the foregoing motion and its attachments was filed electronically with the Clerk
of Court using the Courts CM/ECF system, which will send by e-mail a notice of
docketing activity to the registered Attorney Filers listed on the attached electronic
service list; and a true copy in paper form was served by first-class mail on the
following unregistered counsel: Stephen C. Emmanuel, Ausley & McMullen, P.A.,
Post Office Box 391, Tallahassee, Florida 32302-0391, Counsel for Amicus.

ADAM S. TANENBAUM
Florida Bar No. 117498
16

ELECTRONIC SERVICE LIST (SERVICE BY NDA)

WILLIAM J. SHEPPARD
sheplaw@att.net
ELIZABETH L. WHITE
sheplaw@att.net
BRYAN E. DEMAGGIO
sheplaw@att.net
SHEPPARD, WHITE &
KACHERGUS, P.A.
215 Washington Street
Jacksonville, Florida 32202
Counsel for Plaintiffs-Appellees
in Case No. 14-14061
STEPHEN F. ROSENTHAL
srosenthal@podhurst.com
PODHURST ORSECK, P.A.
25 West Flagler Street, Suite 800
Miami, Florida 33130
Counsel for Plaintiffs-Appellees in Case
No. 14-14066
HORATIO G. MIHET
hmihet@liberty.edu
LIBERTY COUNSEL
1055 Maitland Center Commons Floor 2
Maitland, Florida 32751-7214
Counsel for Amicus
SAMUEL S. JACOBSON
sam@jacobsonwright.com
BLEDSOE, JACOBSON, SCHMIDT,
WRIGHT et al.
1301 Riverplace Boulevard, Suite 1818
In Case No. 14-14061
MARIA KAYANAN
mkayanan@aclufl.org
DANIEL B. TILLEY
dtilley@aclufl.org
ACLU FOUNDATION OF
FLORIDA, INC.
4500 Biscayne Blvd Ste 340
Miami, Florida 33137-3227
17

EXHIBIT A
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Plaintiffs,
v.

Defendants.
_________________________________/
Plaintiffs,
v.

Defendants.
_________________________________/
ORDER DENYING THE MOTIONS TO DISMISS,
GRANTING A PRELIMINARY INJUNCTION, AND
TEMPORARILY STAYING THE INJUNCTION
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The issue in these consolidated cases is the constitutionality of Floridas

refusal to allow same-sex marriages or to recognize same-sex marriages lawfully
entered elsewhere.
The founders of this nation said in the preamble to the United States
Constitution that a goal was to secure the blessings of liberty to themselves and
their posterity. Liberty has come more slowly for some than for others. It was
1967, nearly two centuries after the Constitution was adopted, before the Supreme
Court struck down state laws prohibiting interracial marriage, thus protecting the
liberty of individuals whose chosen life partner was of a different race. Now,
nearly 50 years later, the arguments supporting the ban on interracial marriage
seem an obvious pretext for racism; it must be hard for those who were not then of
age to understand just how sincerely those views were held. When observers look
back 50 years from now, the arguments supporting Floridas ban on same-sex
marriage, though just as sincerely held, will again seem an obvious pretext for
discrimination. Observers who are not now of age will wonder just how those
views could have been held.
The Supreme Court struck down part of the federal Defense of Marriage Act
last year. United States v. Windsor, 133 S. Ct. 2675 (2013). Since that decision,
19 different federal courts, now including this one, have ruled on the
constitutionality of state bans on same-sex marriage. The result: 19 consecutive
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victories for those challenging the bans. Based on these decisions, gays and
lesbians, like all other adults, may choose a life partner and dignify the relationship
through marriage. To paraphrase a civil-rights leader from the age when interracial
marriage was first struck down, the arc of history is long, but it bends toward
justice.
These consolidated cases are here on the plaintiffs motions for a
preliminary injunction and the defendants motions to dismiss. This order holds
that marriage is a fundamental right as that term is used in cases arising under the
Fourteenth Amendments Due Process and Equal Protection Clauses, that Floridas
same-sex marriage provisions thus must be reviewed under strict scrutiny, and that,
when so reviewed, the provisions are unconstitutional. The order dismisses the
claims against unnecessary defendants but otherwise denies the motions to dismiss.
The order grants a preliminary injunction but also grants a temporary stay.
All of this accords with the unbroken line of federal authority since Windsor.
Indeed, except for details about these specific parties, this opinion could end at this
point, merely by citing with approval the circuit decisions striking down state bans
on same-sex marriage: Bostic v. Schaefer, Nos. 141167, 141169, 141173, 2014
WL 3702493 (4th Cir. July 28, 2014); Bishop v. Smith, Nos. 145003, 145006,
2014 WL 3537847 (10th Cir. July 18, 2014); and Kitchen v. Herbert, No. 134178,
2014 WL 2868044 (10th Cir. June 25, 2014).
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I. Background
This order addresses two cases that have been consolidated for pretrial
purposes. The order sometimes refers to Case No. 4:14cv107 as the Brenner
case. The order sometimes refers to Case No. 4:14cv138 as the Grimsley case.
A. The Plaintiffs
The combined total of 22 plaintiffs in the two cases includes 9 sets of samesex spouses who were lawfully married in New York, the District of Columbia,
Iowa, Massachusetts, or Canada; the surviving spouse of a New York same-sex
marriage; 2 individuals who have been in a same-sex relationship for 15 years, are
not married, but wish to marry in Florida; and an organization asserting the rights
of its members who lawfully entered same-sex marriages outside Florida. All the
individual plaintiffs live in Florida. The details follow.
The first two Brenner-case plaintiffs are James D. Brenner and Charles D.
Jones. Mr. Brenner has worked for the Florida Forest Service since 1981. Mr.
Jones has worked for the Florida Department of Education since 2003. They were
married in Canada in 2009. Mr. Brenner asserts that the states refusal to
recognize their marriage eliminates a retirement option that would provide for Mr.
Jones after Mr. Brenners death.
Brenner-case plaintiffs Stephen Schlairet and Ozzie Russ live in Washington
County, Florida. They are not married in any jurisdiction. They meet all
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requirements for marriage in Florida except that they are both men. They wish to
marry and have applied to the defendant Washington County Clerk of Court for a
marriage license. During breaks in employment, they have been unable to obtain
healthcare coverage under one anothers insurance plans because of Floridas
challenged marriage provisions. Based solely on those provisions, the Clerk
refuses to issue a license.
Grimsley-case plaintiffs Sloan Grimsley and Joyce Albu have been together
for 9 years and were married in New York in 2011. They have two adopted minor
children. Ms. Grimsley is a firefighter and paramedic for the City of Palm Beach
Gardens, Florida. Ms. Grimsley and Ms. Albu are concerned that if something
happens to Ms. Grimsley in the line of duty, Ms. Albu will not receive the same
support the state provides to surviving opposite-sex spouses of first responders.
Grimsley-case plaintiffs Chuck Hunziker and Bob Collier have been
together for over 50 years. They lived most of their lives in New York and were
married there in 2013. They now are retired and live in Florida.
Grimsley-case plaintiffs Lindsay Myers and Sarah Humlie have been
together for nearly 4 years and were married in the District of Columbia in 2012.
They live in Pensacola, Florida. Ms. Myers works for the University of West
Florida. Ms. Myers seeks the option to designate Ms. Humlie as her joint annuitant
for pension purposes. Ms. Humlie does not receive health insurance through her
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employer. Because state law prohibits public employers from providing insurance
for same-sex spouses, Ms. Myers cannot get coverage for Ms. Humlie on Ms.
Myerss health plan. The couple makes substantial payments each month for
private health insurance for Ms. Humlie.
Grimsley-case plaintiffs Robert Loupo and John Fitzgerald have been
together for 12 years. They were married in New York in 2013. Mr. Loupo is
employed with the Miami-Dade County public schools. Mr. Fitzgerald is retired
but previously worked for Miami-Dade County. Mr. Loupo wishes to designate
Mr. Fitzgerald as his retirement-plan joint annuitant.
Grimsley-case plaintiffs Denise Hueso and Sandra Newson were married in
Massachusetts in 2009. They lived in Massachusetts, but now they live in Miami.
They have had custody of their now 15-year-old son for 5 years, first as foster
parents and now as adoptive parents.
Grimsley-case plaintiffs Juan del Hierro and Thomas Gantt, Jr., have been
together for 6 years and were married in Washington, D.C., in 2010. They live in
North Miami Beach. They have an adopted son under age 2. Mr. Gantt taught for
more than a decade in public schools but now works at a virtual school. If their
marriage were recognized, Mr. Gantt would designate Mr. del Hierro as his
pension beneficiary.
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Grimsley-case plaintiffs Christian Ulvert and Carlos Andrade live in Miami.

They have been together for 4 years and were married in the District of Columbia
in 2013. Mr. Ulvert previously worked for the Florida Legislature and wishes to
designate Mr. Andrade as his pension beneficiary. They wish to someday adopt
children.
Grimsley-case plaintiffs Richard Milstein and Eric Hankin live in Miami
Beach. They have been together for 12 years and were married in Iowa in 2010.
Grimsley-case plaintiff Arlene Goldberg married Carol Goldwasser in New
York in 2011. Ms. Goldwasser died in March 2014. The couple had been together
for 47 years. Ms. Goldwasser was the toll-facilities director for Lee County,
Florida, for 17 years. Ms. Goldberg is retired but works part time at a major
retailer. The couple had been living with and taking care of Ms. Goldwassers
elderly parents, but now Ms. Goldberg cares for them alone. Social-security
benefits are Ms. Goldbergs primary income. Floridas refusal to recognize the
marriage has precluded Ms. Goldberg from obtaining social-security survivor
benefits. Ms. Goldberg says that for that reason only, she will have to sell her
house, and Ms. Goldwassers parents are looking for another place to live. Ms.
Goldberg also wishes to amend Ms. Goldwassers death certificate to reflect their
marriage.
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Grimsley-case plaintiff SAVE Foundation, Inc. was established in 1993 and

is dedicated to promoting, protecting, and defending equality for lesbian, gay,
bisexual, and transgendered people. SAVEs activities include education
initiatives, outreach, grassroots organizing, and advocacy. In this action SAVE
asserts the rights of its members who are same-sex couples and have lawfully
married outside of Florida.
B. The Defendants
The Brenner and Grimsley cases have four defendants in common. The
Brenner case adds a fifth.
The defendants in common are State of Florida officers, all in their official
capacities: the Governor, the Attorney General, the Surgeon General, and the
Secretary of the Department of Management Services. This order sometimes
refers to these four defendants as the state defendants. The order sometimes
refers to the Secretary of the Department of Management Services as the
Secretary.
The fifth defendant in the Brenner case is the Clerk of Court of Washington
County, Florida, again in his official capacity. This order sometimes refers to him
as the Clerk of Court or simply the Clerk.
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C. The Claims
In each case, the plaintiffs have filed an amended complaint. Each amended
complaint asserts that the Florida same-sex marriage provisions violate the
Fourteenth Amendments Due Process and Equal Protection Clauses. On the
Equal Protection claim, the Brenner plaintiffs say the challenged provisions
improperly discriminate based on sexual orientation, while the Grimsley plaintiffs
assert improper discrimination based on both sexual orientation and sex (that is,
gender). The Brenner plaintiffs assert additional claims based on the First
Amendments right of association, the Establishment Clause, and the Supremacy
Clause.
D. The Challenged Provisions
The Brenner and Grimsley plaintiffs all challenge Article I, 27, of the
Florida Constitution, and Florida Statutes 741.212. The Brenner plaintiffs also
challenge Florida Statutes 741.04(1).
Article I, 27 provides:
Marriage defined.Inasmuch as marriage is the legal
union of only one man and one woman as husband and wife, no
other legal union that is treated as marriage or the substantial
equivalent thereof shall be valid or recognized.
Florida Statutes 741.212 provides:
(1) Marriages between persons of the same sex entered
into in any jurisdiction, whether within or outside the State of
Florida, the United States, or any other jurisdiction, either
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domestic or foreign, or any other place or location, or

relationships between persons of the same sex which are treated
as marriages in any jurisdiction, whether within or outside the
State of Florida, the United States, or any other jurisdiction,
either domestic or foreign, or any other place or location, are
not recognized for any purpose in this state.
(2) The state, its agencies, and its political subdivisions
may not give effect to any public act, record, or judicial
proceeding of any state, territory, possession, or tribe of the
United States or of any other jurisdiction, either domestic or
foreign, or any other place or location respecting either a
marriage or relationship not recognized under subsection (1) or
a claim arising from such a marriage or relationship.
(3) For purposes of interpreting any state statute or rule,
the term marriage means only a legal union between one man
and one woman as husband and wife, and the term spouse
applies only to a member of such a union.
Florida Statutes 741.04(1) provides:
No county court judge or clerk of the circuit court in this
state shall issue a license for the marriage of any person . . .
unless one party is male and the other party is female.
E. The Pending Motions
In each case, the plaintiffs have moved for a preliminary injunction barring
enforcement of the challenged provisions. The defendants oppose the motions and
assert that if a preliminary injunction is granted, it should be stayed pending
appeal.
In each case, the state defendants have moved to dismiss the amended
complaint. They do not contest the standing of most of the plaintiffs to bring these
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cases. They acknowledge that the Secretary of the Department of Management

Services is a proper defendant, but they assert that the Governor, Attorney General,
and Surgeon General are not. They say these defendants have no role in enforcing
the challenged provisions. On the merits, the state defendants say the states samesex marriage provisions are constitutional.
The Clerk of Court has moved to dismiss the Brenner amended complaint
the only one in which the Clerk is named as a defendanton the ground that he
has done nothing more than comply with state law, that he therefore is not a proper
defendant, and that, in any event, the states same-sex marriage provisions are
constitutional.
All parties have agreed that these motions should be decided based on the
existing record, without further evidence.
II. Standing
The plaintiffs whose financial interests are directly affected by the Florida
marriage provisions plainly have standing to challenge them. This apparently
includes most or all of the individual plaintiffs. The effect is the most direct for
current or former public employees who are unable to obtain for themselves or
their spouses the same benefitsprimarily retirement benefits and healthcare
coverageas are available to opposite-sex couples. The defendants do not
challenge the plaintiffs standing in this respect.
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The defendants question only Ms. Goldbergs standing to pursue a change in

Ms. Goldwassers death certificate or to seek social-security benefits based on their
marriage. But Ms. Goldberg has standing on each basis. The death certificate says
Ms. Goldwasser was never married and, in the blank for listing a spouse, says
none. That a spouse would find this offensive and seek to have it changed is
neither surprising nor trivial. Ms. Goldberg has a sufficient personal stake in
pursuing this relief to have standing.
III. The Proper Defendants
Under Ex parte Young, 209 U.S. 123 (1908), a plaintiff may pursue a federal
constitutional claim for prospective relief against an official-capacity state
defendant who is responsible for the challenged action or who, by virtue of his
office, has some connection with the unconstitutional act or conduct complained
of. Luckey v. Harris, 860 F.2d 1012, 1015-16 (11th Cir. 1988) (quoting Ex parte
Young, 209 U.S. at 157).
The state defendants acknowledge that the Secretary meets this test. The
Secretary administers the retirement and healthcare provisions that apply to current
and former state employees. As required by the challenged provisions, the
Secretary refuses to recognize same-sex marriages. The plaintiffs assert that the
Secretary thus violates the United States Constitution.
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The Surgeon General also meets the test. The Surgeon General is the head
of the Department of Health. The Surgeon General thus must execute the powers,
duties, and functions of the department. Fla. Stat. 20.05(1)(a). Those functions
include establishing the official form for death certificates, which must include the
decedents marital status. Id. 382.008(6). The official form includes a blank
for listing the decedents spouse. The Department may change a death certificates
marital information when the name of a surviving spouse is omitted or based on
an order from a court of competent jurisdiction. Id. 382.016(2). This is a court
of competent jurisdiction, Ms. Goldberg seeks such an order, and the person to
whom such an order should properly be directed is the Surgeon General. He is a
proper defendant in this action.
Whether the Governor and Attorney General are proper defendants is less
clear. It also makes no difference. As the state defendants acknowledge, an order
directed to the Secretaryor, for matters relating to the death certificate, to the
Surgeon Generalwill be sufficient to provide complete relief. The Eleventh
Circuit has held that a district court may dismiss claims against redundant officialcapacity defendants. See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.
1991) (approving the dismissal of official-capacity defendants whose presence was
merely redundant to the naming of an institutional defendant). The prudent course
here is to dismiss the Governor and Attorney General on this basis. See generally
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Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341, 345-46 (1936) (Brandeis, J.,
concurring) (setting out fundamental principles of constitutional adjudication,
including that, The Court will not anticipate a question of constitutional law in
advance of the necessity of deciding it ) (quoting earlier authorities in part); see
also Lyng v. Nw. Indian Cemetery Protective Assn, 485 U.S. 439, 445 (1988) (A
fundamental and longstanding principle of judicial restraint requires that courts
avoid reaching constitutional questions in advance of the necessity of deciding
them.), quoted with approval in United States v. $242,484.00, 318 F.3d 1240,
1242 n.2 (11th Cir. 2003).
If it turns out later that complete relief cannot be afforded against the
Secretary and Surgeon General, any necessary and proper additional defendant can
be added.
Finally, the Clerk of Court for Washington County is plainly a proper
defendant. The Clerk denied a marriage license to Mr. Schlairet and Mr. Russ and
would properly be ordered to issue the license if they prevail on their claims in this
action. That the Clerk was acting in accordance with state law does not mean he is
not a proper defendant. Quite the contrary. The whole point of Ex parte Young is
to provide a remedy for unconstitutional action that is taken under state authority,
including, as here, a state constitution or laws.
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In sum, this action will go forward against the Secretary, the Surgeon
General, and the Clerk. The claims against the Governor and Attorney General
will be dismissed without prejudice as redundant.
IV. The Merits
The Fourteenth Amendment provides, among other things, that a state shall
not deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
The amendment was added to the Constitution after the Civil War for the express
purpose of protecting rights against encroachment by state governments. By that
time it was well established that a federal court had the authorityindeed, the
dutyto strike down an unconstitutional statute when necessary to the decision in
a case or controversy properly before the court. The State of Florida has itself
asked federal courts to do so. So the suggestion that this is just a federalism case
that the states laws are beyond review in federal courtis a nonstarter.
That this case involves marriage does not change this result. The Supreme
Court recognized this in Loving v. Virginia, 388 U.S. 1 (1967). There the Court
struck down a Virginia statute that prohibited interracial marriage. The defendants
say interracial marriage is different from same-sex marriage. But on the question
of whether a federal court has the authorityindeed, the dutyto strike down a
state marriage provision if it conflicts with a partys rights under the Fourteenth
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Amendment, Loving is on point and controlling. So are Zablocki v. Redhail, 434

U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 (1987), where the Court
invalidated state provisions restricting marriage. Further, in Windsor, the Court
saidthree timesthat a states interest in defining and regulating marital
relations is subject to constitutional guarantees. 133 S. Ct. at 2691, 2692. In
short, it is settled that a states marriage provisions must comply with the
Fourteenth Amendment and may be struck down when they do not.
It bears noting, too, that the defendants invocation of Floridas prerogative
as a state to set the rules that govern marriage loses some of its force when the
issue raised by 20 of the 22 plaintiffs is the validity of marriages lawfully entered
in other jurisdictions. The defendants do not explain why, if a states laws on
marriage are indeed entitled to such deference, the State of Florida is free to ignore
the decisions of other equally sovereign states, including New York, Iowa, and
Massachusetts.
In sum, the critical issue is whether the challenged Florida provisions
contravene the plaintiffs rights to due process and equal protection. The general
framework that applies to such claims is well settled.
First, the Due Process Clause includes a substantive elementa check on a
states authority to enact certain measures regardless of any procedural safeguards
the state may provide. Substantive due process is an exceedingly narrow concept
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that protects only fundamental rights. When governmental action impinges on

fundamental rights and is challenged in a case properly before a court, the court
reviews the governmental action with strict scrutiny. Whether some actions that
impinge on fundamental rights are properly subject to a lower level of scrutiny
sometimes labeled intermediate scrutinyis unsettled and ultimately makes no
difference here.
Second, under the Equal Protection Clause, a court applies strict scrutiny to
governmental actions that impinge on fundamental rights or employ suspect
classifications. Most other governmental actions are subject to only rational-basis
review. Some actions are properly subject to intermediate equal-protection
scrutiny, but the scope of actions subject to intermediate scrutiny is unsettled and
ultimately makes no difference here.
So the first step in analyzing the merits in these cases, as both sides agree, is
determining whether the right asserted by the plaintiffs is a fundamental right as
that term is used in due-process and equal-protection jurisprudence. Almost every
court that has addressed the issue since the Supreme Courts 2013 decision in
Windsor has said the answer is yes. That view is correct.
The right asserted by the plaintiffs is the right to marry. The Supreme Court
has repeatedly recognized that this is a fundamental right. Thus, for example, in
Loving, the Court held that Virginias ban on interracial marriage violated the Due
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Process and Equal Protection Clauses, even though similar bans were widespread
and of long standing. The Court did not cast the issue as whether the right to
interracial marriage was fundamental. See Kitchen v. Herbert, 961 F. Supp. 2d
1181, 1202 (D. Utah 2013) (Instead of declaring a new right to interracial
marriage, the Court held [in Loving] that individuals could not be restricted from
exercising their existing right to marry on account of the race of their chosen
partner.).
Similarly, in Zablocki, the Court labeled the right to marry fundamental and
struck down, on equal-protection grounds, a Wisconsin statute that prohibited
residents with unpaid court-ordered child-support obligations from entering new
marriages. The Court did not ask whether the right not to pay child support was
fundamental, or whether the right to marry while owing child support was
fundamental; the Court started and ended its analysis on this issue with the
accepted principle that the right to marry is fundamental.
The Court took the same approach in Turner. A Missouri regulation
prohibited prisoners from marrying other than for a compelling reason. The Court
said the states interests in regulating its prisons were insufficient to overcome the
prisoners fundamental right to marry. The Court did not ask whether there is a
fundamental right to marry while in prison, as distinguished from the more general
right to marry.
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In other cases, too, the Court has said the right to marry is fundamental.
Indeed, the Court has sometimes listed marriage as the very paradigm of a
fundamental right. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720 (1997)
(refusing to recognize assisted suicide as a fundamental right, listing rights that do
qualify as fundamental, and placing the right to marry first on the list); Griswold v.
Connecticut, 381 U.S. 479, 48586 (1965) (including the right to marry in the
fundamental right to privacy); Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
535, 541 (1942) (labeling marriage one of the basic civil rights of man); Meyer
v. Nebraska, 262 U.S. 390, 399 (1923) (saying that [w]ithout doubt the right to
marry is within the liberty protected by the Due Process Clause); Maynard v. Hill,
125 U.S. 190, 205 (1888) (labeling marriage the most important relation in life).
Perhaps recognizing these authorities, the defendants do not, and could not
plausibly, assert that the right to marry is not a fundamental right for due-process
and equal-protection purposes. Few rights are more fundamental. The defendants
assert, though, that the right at issue in the cases at bar is the right to marry a
person of the same sex, not just the right to marry. In support of this assertion, the
defendants cite a principle derived from Glucksberg: due-process analysis requires
a careful description of the asserted fundamental liberty interest. 521 U.S. at
721 (citing Reno v. Flores, 507 U.S. 292, 302 (1993)).
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A careful description means only an accurate one, determined at the

appropriate level of generality. Indeed, Glucksberg itself said the right to marry is
fundamental, describing the right at that level of generality. 521 U.S. at 720.
And Loving, Zablocki, and Turner applied the right to marry at that level of
generality, without asking whether the specific application of the right to marry
to interracial marriage or debtor marriage or prisoner marriagewas fundamental
when viewed in isolation.
This approach makes sense. The point of fundamental-rights analysis is to
protect an individuals liberty against unwarranted governmental encroachment.
So it is a two-step analysis: is the right fundamental, and, if so, is the government
encroachment unwarranted (that is, does the encroachment survive strict scrutiny)?
At the first step, the right to marryto choose ones own spouseis just as
important to an individual regardless of whom the individual chooses to marry. So
the right to marry is just as important when the proposed spouse is a person of the
same race and different sex (as in the most common marriages, those that have
been approved without controversy for the longest period), or a person of a
different race (as in Loving), or a person with unpaid child-support obligations (as
in Zablocki), or a prisoner (as in Turner), or a person of the same sex (as in the
cases at bar).
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It is only at the second stepon the question of whether the government

encroachment is unwarrantedthat the nature of the restriction becomes critical.
The governmental interest in overriding a persons fundamental right to marry may
be different in these different situationsthat certainly was the case in Zablocki
and Turner, for examplebut that is a different issue from whether the right itself
is fundamental. The right to marry is as fundamental for the plaintiffs in the cases
at bar as for any other person wishing to enter a marriage or have it recognized.
That leaves for analysis the second step, the application of strict scrutiny. A
state may override a fundamental right through measures that are narrowly tailored
to serve a compelling state interest. A variety of justifications for banning samesex marriages have been proffered by these defendants and in the many other cases
that have plowed this ground since Windsor. The proffered justifications have all
been uniformly found insufficient. Indeed, the states asserted interests would fail
even intermediate scrutiny, and many courts have said they would fail rationalbasis review as well. On these issues the circuit decisions in Bostic, Bishop, and
Kitchen are particularly persuasive. All that has been said there is not repeated
here.
Just one proffered justification for banning same-sex marriage warrants a
further note. The defendants say the critical feature of marriage is the capacity to
procreate. Same-sex couples, like opposite-sex couples and single individuals, can
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adopt, but same-sex couples cannot procreate. Neither can many opposite-sex
couples. And many opposite-sex couples do not wish to procreate.
Florida has never conditioned marriage on the desire or capacity to
procreate. Thus individuals who are medically unable to procreate can marry in
Florida. If married elsewhere, their marriages are recognized in Florida. The same
is true for individuals who are beyond child-bearing age. And individuals who
have the capacity to procreate when married but who voluntarily or involuntarily
become medically unable to procreate, or pass the age when they can do so, are
allowed to remain married. In short, the notion that procreation is an essential
element of a Florida marriage blinks reality.
Indeed, defending the ban on same-sex marriage on the ground that the
capacity to procreate is the essence of marriage is the kind of position that, in
another context, might support a finding of pretext. It is the kind of argument that,
in another context, might be accompanied by a suspicion of mendacity. St.
Marys Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). The undeniable truth is
that the Florida ban on same-sex marriage stems entirely, or almost entirely, from
moral disapproval of the practice. Properly analyzed, the ban must stand or fall on
the proposition that the state can enforce that moral disapproval without violating
the Fourteenth Amendment.
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The difficulty for the defendants is that the Supreme Court has made clear
that moral disapproval, standing alone, cannot sustain a provision of this kind.
Windsor so indicates. Further, in Bowers v. Hardwick, 478 U.S. 186 (1986), the
Court upheld a state law prohibiting sodomy, basing the decision on the states
prerogative to make moral choices of this kind. But later, in Lawrence v. Texas,
539 U.S. 558 (2003), the Court revisited the issue, struck down a statute
prohibiting gay sex, and expressly overruled Bowers. In his Lawrence dissent,
Justice Scalia made precisely the point set out abovethat a ban on same-sex
marriage must stand or fall on the proposition that the state can enforce moral
disapproval of the practice without violating the Fourteenth Amendment. Justice
Scalia put it this way: State laws against . . . same-sex marriage . . . are likewise
sustainable only in light of Bowers validation of laws based on moral choices.
Lawrence, 539 U.S. at 590 (Scalia, J., dissenting).
Had we begun with a clean slate, one might have expected the defendants to
lead off their arguments in this case by invoking the states moral disapproval of
same-sex marriage. But the defendants did not start there, undoubtedly because
any such defense would run headlong into the Supreme Courts decisions in
Lawrence and Windsor. See also Romer v. Evans, 517 U.S. 620 (1996) (striking
down a state constitutional amendment that discriminated based on sexual
orientation). Each of these decisions rejected moral disapproval of same-sex
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orientation as a legitimate basis for a law. See also Bowers, 478 U.S. at 216
(Stevens, J., dissenting) ([T]he fact that the governing majority in a State has
traditionally viewed a particular practice as immoral is not a sufficient reason for
upholding a law prohibiting the practice; neither history nor tradition could save a
law prohibiting miscegenation from constitutional attack.).
In short, we do not write on a clean slate. Effectively stripped of the moraldisapproval argument by binding Supreme Court precedent, the defendants must
fall back on make-weight arguments that do not withstand analysis. Floridas
same-sex marriage provisions violate the Due Process and Equal Protection
Clauses.
In reaching this conclusion, I have not overlooked the defendants reliance
on Baker v. Nelson, 409 U.S. 810 (1972), and Lofton v. Secy of Dept of Children
& Family Servs., 358 F.3d 804 (11th Cir. 2004).
In Baker, the Supreme Court dismissed for want of a substantial federal
question an appeal from a state supreme court decision rejecting a constitutional
challenge to the states ban on same-sex marriage. Such a summary disposition
binds lower federal courts unless doctrinal developments in the Supreme Court
undermine the decision. See Hicks v. Miranda, 422 U.S. 332, 344-45 (1975)
(holding that a summary disposition binds lower courts except when doctrinal
developments indicate otherwise) (quoting Port Auth. Bondholders Protective
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Comm. v. Port of New York Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967) (Friendly,
J.)). The Eleventh Circuit has recognized this principle:
Doctrinal developments need not take the form of an
outright reversal of the earlier case. The Supreme Court may
indicate its willingness to reverse or reconsider a prior opinion
with such clarity that a lower court may properly refuse to
follow what appears to be binding precedent. Even less clearcut expressions by the Supreme Court can erode an earlier
summary disposition because summary actions by the Court do
not carry the full precedential weight of a decision announced
in a written opinion after consideration of briefs and oral
argument. The Court could suggest that a legal issue once
thought to be settled by a summary action should now be
treated as an open question, and it could do so without directly
mentioning the earlier case. At that point, lower courts could
appropriately reach their own conclusions on the merits of the
issue.
Hardwick v. Bowers, 760 F.2d 1202 (11th Cir. 1985) (citations omitted), revd on
other grounds, Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence
v. Texas, 539 U.S. 558 (2003).
Every court that has considered the issue has concluded that the intervening
doctrinal developmentsas set out in Lawrence, Romer, and Windsorhave
sapped Bakers precedential force.
In Lofton, the plaintiffs challenged a Florida statute that prohibited adoptions
by gays. Circuit precedent held, and both sides agreed, that adoption was not a
fundamental right. The court said sexual orientation was not a suspect
classification. With no fundamental right and no suspect classification, the court
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applied only rational-basis scrutiny, not strict or intermediate scrutiny. And the
court said that, because of the primacy of a childs welfare, the state can make
classifications for adoption purposes that would be constitutionally suspect in other
arenas. 358 F.3d at 810. The court criticized the Supreme Courts Lawrence
decision, 358 F.3d at 816-17, and apparently gave it little or no sway. The court
upheld the Florida statute. The statutethe last in the nation banning gay
adoptionwas later struck down by Floridas own courts. See Florida Dept of
Children & Families v. Adoption of X.X.G., 45 So. 3d 79, 81 (Fla. 3d DCA 2010).
The plaintiffs argue, with considerable force, that Lofton does not square
with Lawrence, Romer, and Windsor. But Lofton is the law of the circuit. It
establishes that, at least for now, sexual orientation is not a suspect classification in
this circuit for equal-protection purposes. But Lofton says nothing about whether
marriage is a fundamental right. Lofton does not change the conclusion that
Floridas same-sex marriage provisions violate the Due Process and Equal
Protection Clauses.
The institution of marriage survived when bans on interracial marriage were
struck down, and the institution will survive when bans on same-sex marriage are
struck down. Liberty, tolerance, and respect are not zero-sum concepts. Those
who enter opposite-sex marriages are harmed not at all when others, including
these plaintiffs, are given the liberty to choose their own life partners and are
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shown the respect that comes with formal marriage. Tolerating views with which
one disagrees is a hallmark of civilized society.
V. Preliminary Injunction
As a prerequisite to a preliminary injunction, a plaintiff must establish a
substantial likelihood of success on the merits, that the plaintiff will suffer
irreparable injury if the injunction does not issue, that the threatened injury
outweighs whatever damage the proposed injunction may cause a defendant, and
that the injunction will not be adverse to the public interest. See, e.g., Charles H.
Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir. 2005); Siegel v.
LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc).
For the reasons set out above, the plaintiffs are likely to prevail on the
merits. The plaintiffs also meet the other requirements for a preliminary
injunction. The plaintiffs will suffer irreparable harm if an injunction is not issued.
Indeed, the ongoing unconstitutional denial of a fundamental right almost always
constitutes irreparable harm. The threatened injury to the plaintiffs outweighs
whatever damage the proposed injunction may cause the defendants, that is, the
state. And a preliminary injunction will not be adverse to the public interest.
Vindicating constitutional rights almost always serves the public interest.
This order requires the plaintiffs to give security for costs in a modest
amount. Any party may move at any time to adjust the amount of security.
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VI. Stay
A four-part test governs stays pending appeal: (1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S.
770, 776 (1987). See also Venus Lines Agency v. CVG Industria Venezolana De
Aluminio, C.A., 210 F.3d 1309, 1313 (11th Cir. 2000) (applying the same test).
The four-part test closely tracks the four-part test governing issuance of a
preliminary injunction. Because the governing four-part tests are so similar, it is a
rare case in which a preliminary injunction is properly stayed pending appeal. This
is the rare case.
As set out above, the states interest in refusing to allow or recognize the
plaintiffs same-sex marriages is insufficient to override the plaintiffs interest in
vindicating their constitutional rights. The public interest does not call for a
different result. So the preliminary injunction will issue, eliminating any delay in
this court, and allowing an enjoined party to go forward in the Eleventh Circuit.
But at the stay-pending-appeal stage, an additional public interest comes into
play. There is a substantial public interest in implementing this decision just
oncein not having, as some states have had, a decision that is on-again, off-
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again. This is so for marriages already entered elsewhere, and it is more clearly so
for new marriages. There is a substantial public interest in stable marriage laws.
Indeed, there is a substantial public interest in allowing those who would enter
same-sex marriages the same opportunity for due deliberation that opposite-sex
couples routinely are afforded. Encouraging a rush to the marriage officiant, in an
effort to get in before an appellate court enters a stay, serves the interests of
nobody.
A stay thus should be entered for long enough to provide reasonable
assurance that the opportunity for same-sex marriages in Florida, once opened, will
not again close. The stay will remain in effect until stays have been lifted in
Bostic, Bishop, and Kitchen, and for an additional 90 days to allow the defendants
to seek a longer stay from this court or a stay from the Eleventh Circuit or Supreme
Court.
There is one exception to the stay. The exception is the requirement to
correct Ms. Goldwassers death certificate. The correction is important to Ms.
Goldberg. There is little if any public interest on the other side of the scale. There
is no good reason to further deny Ms. Goldberg the simple human dignity of being
listed on her spouses death certificate. Indeed, the states refusal to let that
happen is a poignant illustration of the controversy that brings us here.
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VII. Filing
Because this is an appealable order, it will be filed separately in each of the
consolidated cases. Any notice of appeal must be filed separately in each case to
which it applies.
VIII. Conclusion
The Supreme Court has repeatedly recognized the fundamental right to
marry. The Court applied the right to interracial marriage in 1967 despite state
laws that were widespread and of long standing. Just last year the Court struck
down a federal statute that prohibited federal recognition of same-sex marriages
lawfully entered in other jurisdictions. The Florida provisions that prohibit the
recognition of same-sex marriages lawfully entered elsewhere, like the federal
provision, are unconstitutional. So is the Florida ban on entering same-sex
marriages.
For the reasons set out in this order,
IT IS ORDERED:
1.
The state defendants motion to dismiss, ECF No. 50 in Case No.
4:14cv107, is granted in part and denied in part. All claims against the defendant
Governor and Attorney General are dismissed without prejudice as redundant. I do
not direct the entry of judgment under Federal Rule of Civil Procedure 54(b). In
all other respects the motion to dismiss is denied.
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2.
The defendant Clerk of Courts motion to dismiss, ECF No. 49 in
Case No. 4:14cv107, is denied.

3.
The plaintiffs motions for a preliminary injunction, ECF Nos. 2, 11,
and 42 in Case No. 4:14cv107, are granted against the remaining defendants.
4.
The defendant Secretary of the Florida Department of Management
Services and the defendant Florida Surgeon General must take no steps to enforce
or apply these Florida provisions on same-sex marriage: Florida Constitution,
Article I, 27; Florida Statutes 741.212; and Florida Statutes 741.04(1). The
preliminary injunction set out in this paragraph will take effect upon the posting of
security in the amount of $500 for costs and damages sustained by a party found to
have been wrongfully enjoined. The preliminary injunction binds the Secretary,
the Surgeon General, and their officers, agents, servants, employees, and
attorneysand others in active concert or participation with any of themwho
receive actual notice of this injunction by personal service or otherwise.
5.
The defendant Florida Surgeon General must issue a corrected death
certificate for Carol Goldwasser showing that at the time of her death she was
married to Arlene Goldberg. The deadline for doing so is the later of (a)
September 22, 2014, or (b) 14 days after all information is provided that would be
required in the ordinary course of business as a prerequisite to listing an oppositesex spouse on a death certificate. The preliminary injunction set out in this
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paragraph will take effect upon the posting of security in the amount of $100 for
costs and damages sustained by a party found to have been wrongfully enjoined.
The preliminary injunction binds the Surgeon General and his officers, agents,
servants, employees, and attorneysand others in active concert or participation
with any of themwho receive actual notice of this injunction by personal service
or otherwise.
6.
The defendant Clerk of Court of Washington County, Florida, must
issue a marriage license to Stephen Schlairet and Ozzie Russ. The deadline for
doing so is the later of (a) 21 days after any stay of this preliminary injunction
expires or (b) 14 days after all information is provided and all steps are taken that
would be required in the ordinary course of business as a prerequisite to issuing a
marriage license to an opposite-sex couple. The preliminary injunction set out in
this paragraph will take effect upon the posting of security in the amount of $100
for costs and damages sustained by a party found to have been wrongfully
enjoined. The preliminary injunction binds the Clerk of Court and his officers,
agents, servants, employees, and attorneysand others in active concert or
participation with any of themwho receive actual notice of this injunction by
personal service or otherwise.
The preliminary injunctions set out in paragraphs 4 and 6 are stayed and will not
take effect until 91 days after stays have been denied or lifted in Bostic v. Schaefer,
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Nos. 141167, 141169, 141173, 2014 WL 3702493 (4th Cir. July 28, 2014);
Bishop v. Smith, Nos. 145003, 145006, 2014 WL 3537847 (10th Cir. July 18,
2014); and Kitchen v. Herbert, No. 134178, 2014 WL 2868044 (10th Cir. June
25, 2014). The stay may be lifted or extended by further order.
SO ORDERED on August 21, 2014.
s/Robert L. Hinkle

EXHIBIT B
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Plaintiffs,
v.

Defendants.
_________________________________/
Plaintiffs,
v.

Defendants.
_________________________________/
ORDER DENYING THE MOTIONS TO ALTER THE STAY
A stay of the preliminary injunction entered in these consolidated cases is
currently in effect through January 5, 2015. Each side has moved to alter the
staythe plaintiffs to end it sooner, the defendants to extend it until their appeal is
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resolved. This order denies the motions, leaving the stay in effect through January
5.
I
The issue on the merits is the constitutionality of Floridas refusal to allow
same-sex marriages or to recognize same-sex marriages lawfully entered
elsewhere. The order of August 21, 2014, held the challenged Florida provisions
unconstitutional.
The order relied in part on the Supreme Courts decision in United States v.
Windsor, 133 S. Ct. 2675 (2013), and three circuit decisions that were rendered
after Windsor. The circuit decisions were Bostic v. Schaefer, 760 F.3d 352 (4th
Cir. 2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014); and Kitchen v.
Herbert, 755 F.3d 1193 (10th Cir. 2014). Now two more circuits have reached the
same result. See Latta v. Otter, No. 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7,
2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014).
The August 21 order granted a preliminary injunction for the plaintiffs but
stayed the order in substantial part. The order said:
A four-part test governs stays pending appeal: (1) whether the
stay applicant has made a strong showing that he is likely to succeed
on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4) where the public
interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). See
also Venus Lines Agency v. CVG Industria Venezolana De Aluminio,
C.A., 210 F.3d 1309, 1313 (11th Cir. 2000) (applying the same test).
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The four-part test closely tracks the four-part test governing

issuance of a preliminary injunction. Because the governing four-part
tests are so similar, it is a rare case in which a preliminary injunction
is properly stayed pending appeal. This is the rare case.
As set out above, the states interest in refusing to allow or
recognize the plaintiffs same-sex marriages is insufficient to override
the plaintiffs interest in vindicating their constitutional rights. The
public interest does not call for a different result. So the preliminary
injunction will issue, eliminating any delay in this court, and allowing
an enjoined party to go forward in the Eleventh Circuit.
But at the stay-pending-appeal stage, an additional public
interest comes into play. There is a substantial public interest in
implementing this decision just oncein not having, as some states
have had, a decision that is on-again, off-again. This is so for
marriages already entered elsewhere, and it is more clearly so for new
marriages. There is a substantial public interest in stable marriage
laws. Indeed, there is a substantial public interest in allowing those
who would enter same-sex marriages the same opportunity for due
deliberation that opposite-sex couples routinely are afforded.
Encouraging a rush to the marriage officiant, in an effort to get in
before an appellate court enters a stay, serves the interests of nobody.
A stay thus should be entered for long enough to provide
reasonable assurance that the opportunity for same-sex marriages in
Florida, once opened, will not again close. The stay will remain in
effect until stays have been lifted in Bostic, Bishop, and Kitchen, and
for an additional 90 days to allow the defendants to seek a longer stay
from this court or a stay from the Eleventh Circuit or Supreme Court.
Order of August 21, 2014, ECF No. 74, at 28-29.
On October 6, 2014, the Supreme Court denied certiorari in Bostic, Bishop,
and Kitchen. The stays were lifted the same day. See Bostic v. Schaefer. No. 141167, 2014 WL 4960335 (4th Cir Oct. 6, 2014); Bishop v. Smith, No. 14-5003,
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2014 WL 4960523 (10th Cir. (Oct. 6, 2014); Kitchen v. Herbert, No. 13-4178,
2014 WL 4960471 (10th Cir. Oct. 6, 2014).
The stay entered in this case on August 21, by its terms and the operation of
Federal Rule of Civil Procedure 6(a)(1)(C), remains in effect until the end of the
day on January 5, 2015. That is the first workday at least 90 days after October 6,
2014.
II
The plaintiffs assert the stay should be lifted immediately or in any event
within 7 days. This would leave the Eleventh Circuit insufficient time to make a
considered judgment on whether the stay should remain in place and thus would be
inconsistent with the public interest in implementing just once the constitutional
decision on same-sex marriage in Florida. This order denies the plaintiffs motion.
III
The defendants assert the stay should remain in effect for as long as their
appeal in these cases remains pending. But the plaintiffs have a substantial interest
in exercising their constitutional rights without undue and indefinite delay. The
public interest in implementing the constitutional decision just once is sufficient to
support the 90-day delay so that the Eleventh Circuit can consider the matter with
all deliberate speed.
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That public interest will support a longer stay only if, having considered the
matter, the Eleventh Circuit concludes that the defendants have a substantial
likelihood of success on appeal. In light of the unbroken line of circuit decisions
striking down bans on same-sex marriage and the Supreme Courts decision to
leave those decisions intact, I conclude that a longer stay is not warranted.
The decision not to extend the stay is consistent with the Supreme Courts
treatment of this issue. The stays the Supreme Court put into effect prior to
October 6 were vacated on that day. Since October 6, no Supreme Court stay has
been in effect for more than two days, and no Supreme Court stay is now in place.
See Parnell v. Hamby, No. 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014)
(denying a stay of a district-court decision holding a states same-sex marriage ban
unconstitutional); Otter v. Latta, No. 14A374, 2014 WL 5094190 (U.S. Oct. 10,
2014) (denying a stay of a circuit-court decision holding a states same-sex
marriage ban unconstitutional and vacating a stay entered two days earlier). No
circuit that has decided the same-sex marriage issue on the merits has stayed its
ruling.
One other matter deserves mention. The defendants say I should stay this
federal decision so that the Florida Supreme Court can rule in pending state cases.
But the issue here is a federal constitutional issue. The Florida Supreme Court has
the last word on state law, but here state law is clear; there is no dispute over state
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law. The issue here arises under the United States Constitution. The United States
Supreme Court will make the final ruling that definitively resolves this federal
constitutional issue. And if the United States Supreme Court does not take up the
issue, the final ruling that governs in Florida (and in Alabama and Georgia) will be
the decision of the United States Court of Appeals for the Eleventh Circuit.
Waiting for a decision of the Florida Supreme Court will serve no purpose.
IV
For these reasons,
IT IS ORDERED:
The motions to alter the stay, ECF Nos. 87, 88, and 92, are DENIED. The
stay remains in place and will expire at the end of the day on January 5, 2015.
SO ORDERED on November 5, 2014.
s/Robert L. Hinkle
APPENDIX C


Nos. 14-14061-AA,
14-14066-AA
JAMES BRENNER, et al.,
Appellees,
Appellees,
v.
v.
SECY, FLA. DEPT OF HEALTH, et al.
SECY, FLA. DEPT OF HEALTH and

SECY, FLA. DEPT OF MGMT. SERVS.,
Appellants.
Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
JOINT INITIAL BRIEF OF ALL APPELLANTS
PAMELA JO BONDI
ATTORNEY GENERAL
JAMES J. GOODMAN, JR.
JEFF GOODMAN, P.A.
946 Main Street
Phone: (850) 638-9722
Fax: (850) 638-9724
Counsel for the Clerk of Court
ALLEN WINSOR
Solicitor General
ADAM S. TANENBAUM
OFFICE OF THE ATTORNEY GENERAL
The Capitol PL01
Phone: (850) 414-3688
Fax: (850) 410-2672
Counsel for the Secretaries

Appeal Nos. 14-14061-AA, 14-14066-AA

CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT
Appellants Secretary of the Florida Department of Health, Secretary of the
Florida Department of Management Services, and Clerk of the Court of
Washington County, Florida, pursuant to 11th Cir. R. 26.1-1, certify that the
following is a list of those who have an interest in the outcome of this case and/or
appeal:
American Civil Liberties Union of Florida, Inc., The
American Civil Liberties Union Foundation, Inc.
American Civil Liberties Union Foundation of Florida, Inc., The
Albu, Joyce
Andrade, Carlos
Armstrong, Dr. John H.
Ausley & McMullen, P.A.
Bazzell, Harold
Bledsoe, Schmidt & Wilkinson, P.A.
Bondi, Pamela Jo
Brenner, James Domer
Collier, Bob
C-1 of 4


Grimsley v. Secy, Fla. Dept of Health
Appeal Nos. 14-14061-AA, 14-14066-AA
Cooper, Leslie
Crampton, Stephen M.
Del Hierro, Juan
DeMaggio, Bryan E.
Emmanuel, Stephen C.
Fitzgerald, John
Florida Conference of Catholic Bishops, Inc.
Florida Family Action, Inc.
Gantt, Thomas, Jr.
Goldberg, Arlene
Goldwasser, Carol (deceased)
Goodman, James J., Jr.
Graessle, Jonathan W.
Grimsley, Sloan
Hankin, Eric
Hinkle, Hon. Robert L.
Hueso, Denise
Humlie, Sarah
Hunziker, Chuck
C-2 of 4


Appeal Nos. 14-14061-AA, 14-14066-AA
Jacobson, Samuel
Jacobson Wright & Sussman, P.A.
Jones, Charles Dean
Kachergus, Matthew R.
Kayanan, Maria
Liberty Counsel, Inc.
Liberty Counsel Action, Inc.
Loupo, Robert
Mihet, Horatio G.
Milstein, Richard
Myers, Lindsay
Newson, Sandra
Nichols, Craig J.
Podhurst Orseck, P.A.
Rosenthal, Stephen F.
Russ, Ozzie
Save Foundation, Inc.
Schlairet, Stephen
Scott, Rick
C-3 of 4


Appeal Nos. 14-14061-AA, 14-14066-AA
Sevier, Chris
Sheppard, White, Kachergus and DeMaggio, P.A.
Sheppard, William J.
Stampelos, Hon. Charles A.
Staver, Anita L.
Staver, Mathew D.
Stevenson, Benjamin James
Tanenbaum, Adam S.
Tilley, Daniel B.
Ulvert, Christian
White, Elizabeth L.
Winsor, Allen C.
C-4 of 4

STATEMENT REGARDING ORAL ARGUMENT

This case presents a constitutional challenge to Floridas marriage laws.
Because of the importance of this issue, the appellants respectfully request oral
argument.

TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT ..............................................................................C-1
STATEMENT REGARDING ORAL ARGUMENT ............................................... i
TABLE OF CITATIONS ........................................................................................ iv
STATEMENT OF SUBJECT-MATTER AND APPELLATE
JURISDICTION.........................................................................................................x
STATEMENT OF THE ISSUE .................................................................................1
STATEMENT OF THE CASE ..................................................................................2
SUMMARY OF THE ARGUMENT ........................................................................7
ARGUMENT .............................................................................................................9
I.
II.
The District Courts Order Is Inconsistent with Principles of

Federalism......................................................................................................10
A.
States Have Nearly Exclusive Authority to Define and

Regulate Marriage. ..............................................................................11
B.
Loving v. Virginia Does Not Undermine States Authority

to Define Marriage as a Union Between One Man and One
Woman. ...............................................................................................13
C.
Baker v. Nelson Remains Binding Precedent......................................15
Even Putting Aside Federalism and Baker v. Nelson, Floridas

Marriage Laws Do Not Violate the Fourteenth Amendment. .......................21
A.
Floridas Marriage Laws Do Not Violate the Fundamental

Right to Marry. ....................................................................................22
B.
Floridas Marriage Laws Do Not Otherwise Require

Heightened Scrutiny. ...........................................................................27
C.
Floridas Long-Standing, Traditional Definition of

Marriage Satisfies the Rational Basis Standard. .................................27
ii

TABLE OF CONTENTS contd

Contents
III.
IV.
Page(s)
The Plaintiffs Remaining Constitutional Claims Cannot

Succeed. .........................................................................................................33
A.
Floridas Marriage Laws Do Not Impair the Right to

Travel...................................................................................................33
B.
Floridas Marriage Laws Do Not Violate the

Establishment Clause. .........................................................................34
C.
Floridas Marriage Laws Do Not Interfere with a

Fundamental Right to Intimate Association........................................35
The Plaintiffs Cannot Satisfy the Preliminary Injunction Factors. ............... 36
CONCLUSION ........................................................................................................38
CERTIFICATE OF COMPLIANCE .......................................................................39
CERTIFICATE OF SERVICE ................................................................................40
iii

TABLE OF CITATIONS
Cases
* Agostni v. Felton,
521 U.S. 203, 117 S. Ct. 1997 (1997) ................................................... 18, 19
Alden v. Maine,
527 U.S. 706, 119 S. Ct. 2240 (1999) ..........................................................11
Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd.,
557 F.3d 1177 (11th Cir. 2009) ................................................................6, 36
* Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971) ........................................................ 15, 16, 30
* Baker v. Nelson,
409 U.S. 810, 93 S. Ct. 37 (1972) ....................................................... passim
Bishop v. Smith,
760 F.3d 1070 (10th Cir. 2014) .....................................................................24
Bond v. United States,
131 S. Ct. 2355 (2011)..................................................................................11
Bostic v. Schaefer,
760 F.3d 352 (4th Cir. 2014) ................................................................. 24, 25
Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater,
2 F.3d 1514 (11th Cir. 1993) ........................................................................35
* Citizens for Equal Prot. v. Bruning,
455 F.3d 859 (8th Cir. 2006) ........................................................... 26, 28, 31
Collins v. City of Harker Heights, Tex.,
503 U.S. 115, 112 S. Ct. 1061 (1992) ..........................................................23
* Conde-Vidal v. Garcia-Padilla,
Case No. 14-cv-1253, -- F. Supp. 3d --,
2014 WL 5361987 (D.P.R. Oct. 21, 2014)....................................... 19, 21, 26
Coogler v. Rogers,
7 So. 391 (Fla. 1889) ............................................................................. 10, 29
iv

TABLE OF CITATIONS contd

Dean v. District of Columbia,
653 A.2d 307 (D.C. 1995) ............................................................................30
* DeBoer v. Snyder,
-- F.3d --, 2014 WL 5748990 (6th Cir. Nov. 6, 2014) .......................... passim
* Doe v. Moore,
410 F.3d 1337 (11th Cir. 2005) ....................................................... 22, 27, 28
FCC v. Beach Commcns, Inc.,
508 U.S. 307, 113 S. Ct. 2096 (1993) ..........................................................28
Forsyth Cnty. v. U.S. Army Corps of Engrs,
633 F.3d 1032 (11th Cir. 2011) ......................................................................6
Haddock v. Haddock,
201 U.S. 562, 26 S. Ct. 525 (1906) ..............................................................11
Haitian Refugee Ctr., Inc. v. Baker,
953 F.2d 1498 (11th Cir. 1992) ......................................................................6
Heller v. Doe,
509 U.S. 312, 113 S. Ct. 2637 (1993) ..........................................................28
Hicklin v. Orbeck,
437 U.S. 518, 98 S. Ct. 2482 (1978) ............................................................34
Hicks v. Miranda,
422 U.S. 332, 95 S. Ct. 2281 (1975) ..................................................... 17, 18
133 S. Ct. 2652 (2013)....................................................................................9
In re Burrus,
136 U.S. 586, 10 S. Ct. 850 (1890) ..............................................................11
In re Marriage of J.B. and H.B.,
326 S.W.3d 654 (Tex. App. 2010) ...............................................................30
Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012)................................................... 17, 30


Lackey v. Texas,
514 U.S. 1045, 115 S. Ct. 1421 (1995) ........................................................21
Lawrence v. Texas,
539 U.S. 558, 123 S. Ct. 2472 (2003) ....................................... 19, 20, 29, 35
Lemon v. Kurtzman,
403 U.S. 602, 91 S. Ct. 2105 (1971) ............................................................35
* Lofton v. Secy, Fla. Dept of Children & Family Servs.,
358 F.3d 804 (11th Cir. 2004) .............................................................. passim
Loving v. Virginia,
388 U.S. 1, 87 S. Ct. 1817 (1967) ........................................................ passim
Mandel v. Bradley,
432 U.S. 173, 97 S. Ct. 2238 (1977) ............................................................16
Maryland v. King,
133 S. Ct. 1 (2012)........................................................................................36
McGowan v. Maryland,
366 U.S. 420, 81 S. Ct. 1101 (1961) ............................................................35
Massachusetts v. HHS,
682 F.3d 1 (1st Cir. 2012).............................................................................17
McConnell v. Nooner,
547 F.2d 54 (8th Cir. 1976) ..........................................................................17
McCray v. New York,
461 U.S. 961, 103 S. Ct. 2438 (1983) ..........................................................21
Michael M. v. Superior Court,
450 U.S. 464, 101 S. Ct. 1200 (1981) ..........................................................32
Ne. Fla. Chapter of Assn of Gen. Contractors of Am. v. City of
Jacksonville,
896 F.2d 1283 (11th Cir. 1990) ....................................................................37
New Motor Vehicle Bd. of Calif. v. Orrin W. Fox Co.,
434 U.S. 1345, 98 S. Ct. 359 (1977) ............................................................36
vi


Palmore v. Sidoti,
466 U.S. 429, 104 S. Ct. 1879 (1984) ................................................... 14, 15
Pennoyer v. Neff,
95 U.S. (5 Otto) 714 (1877)..........................................................................12
Powell v. Barrett,
541 F.3d 1298 (11th Cir. 2008) ....................................................................21
Reno v. Flores,
507 U.S. 292, 113 S. Ct. 1439 (1993) ..........................................................23
* Robicheaux v. Caldwell,
2 F. Supp. 3d 910 (E.D. La. 2014)............................................. 25, 26, 29, 30
* Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477, 109 S. Ct. 1917 (1989) ..........................................................18
Romer v. Evans,
517 U.S. 620, 116 S. Ct. 1620 (1996) ............................................. 12, 20, 28
Saenz v. Roe,
526 U.S. 489, 119 S. Ct. 1518 (1999) ................................................... 33, 34
Schuette v Coal. to Defend Affirmative Action,
134 S. Ct. 1623 (2014)...................................................................................32
Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012) ..................................................... 17, 30
Shahar v. Bowers,
114 F.3d 1097 (11th Cir. 1997) ....................................................................35
Singer v. Hara,
522 P.2d 1187 (Wash. Ct. App. 1974) ..........................................................30
* Sosna v. Iowa,
419 U.S. 393, 95 S. Ct. 553 (1975) ....................................................... 12, 15
Standhardt v. Superior Court,
77 P.3d 451 (Ariz. Ct. App. 2003) ................................................................30
vii


Turner v. Safely,
482 U.S. 78, 107 S. Ct. 2254 (1987) ............................................................25
United States v. Carver,
260 U.S. 482, 43 S. Ct. 181 (1923) ..............................................................21
United States v. OBrien,
391 U.S. 367, 88 S. Ct. 1673 (1968) ............................................................32
* United States v. Windsor,
133 S. Ct. 2675 (2013).......................................................................... passim
Vance v. Bradley,
440 U.S. 93, 99 S. Ct. 939 (1979) ................................................................31
* Washington v. Glucksberg,
521 U.S. 702, 117 S. Ct. 2258 (1997) ................................................... 22, 23
* Williams v. Attorney Gen. of Ala.,
378 F.3d 1232 (11th Cir. 2004) ............................................................. 20, 26
Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) .......................................................18
Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 129 S. Ct. 365 (2008) ................................................................36
Zablocki v. Redhail,
434 U.S. 374, 98 S. Ct. 673 (1978) ..............................................................25
Zobel v. Williams,
457 U.S. 55, 102 S. Ct. 2309 (1982) ............................................................34
Statutes
741.04, Fla. Stat. ...............................................................................................4, 10
741.212, Fla. Stat. .............................................................................................4, 10
28 U.S.C. 1257 ......................................................................................................16
28 U.S.C. 1292 ........................................................................................................x
viii


28 U.S.C. 1331 ........................................................................................................x
28 U.S.C. 1343 ........................................................................................................x
Pub. L. No. 100-352 .................................................................................................16
Constitutional Provisions
Art. I, 27, Fla. Const. ..............................................................................................4
U.S. Const. amend. XIV .................................................................................. passim
Other Authorities
Fla. Dept of State, Div. of Elections,
http://election.dos.state.fl.us/initiatives/
initdetail.asp?account=41550&seqnum=1 ....................................................10
Jurisdictional Statement of Appellants, Baker v. Nelson, No. 71-1027 (U.S.
Feb. 11, 1971) ......................................................................................... 15, 16
ix

STATEMENT OF SUBJECT-MATTER
AND APPELLATE JURISDICTION
This is a consolidated interlocutory appeal from preliminary injunction
orders in two cases. The United States District Court for the Northern District of
Florida entered the injunctions on August 21, 2014. (DE-cv107 74; DE-cv138 23).1
That court had original jurisdiction because the case raises federal questions. See
28 U.S.C. 1331; see also 28 U.S.C. 1343(a). The appellants timely filed notices
of appeal in both cases on September 4, 2014. (DE-cv107 77; DE-cv138 25). This
Court has jurisdiction because the orders on appeal granted injunctions. See 28
U.S.C. 1292(a).
Docket entries in the Brenner case (Case No. 14-cv-107) are cited as DEcv107 X at Y, and entries in the Grimsley case (Case No. 14-cv-138) are cited as
DE-cv138 X at Y. X refers to the docket entry number, and Y refers to the
page of that entry when appropriate.
x

STATEMENT OF THE ISSUE

Whether the district court abused its discretion in preliminarily enjoining
enforcement of Floridas marriage laws based on that courts conclusion that the
Fourteenth Amendment to the United States Constitution requires States to allow
same-sex marriage.

STATEMENT OF THE CASE

These consolidated appeals raise the question whether the Fourteenth
Amendment to the United States Constitution bars the State of Florida from
defining marriage as a legal union between one man and one woman.
Course of Proceedings, Trial Court Disposition, and Statement of the Facts
Two sets of plaintiffs filed two separate actions, both challenging Floridas
marriage laws. Both sets sued the same four Florida officialsthe Governor, the
Attorney General, the Secretary of the Florida Department of Health (the Health
Secretary), and the Secretary of the Florida Department of Management Services
(the DMS Secretary). The Brenner plaintiffs (Case No. 4:14-cv-107) also sued
the Clerk of the Court for Washington County, Florida (the Clerk), who is
responsible for issuing marriage licenses in the county where two plaintiffs reside.
The district court consolidated the two cases. (DE-cv107 34 at 2; DE-cv138 at 2).
The Brenner plaintiffs are four men: James Brenner, Charles Jones, Stephen
Schlairet, and Ozzie Russ. (DE-cv107 10 at 1-2). Brenner and Jones, both State
employees, married in Canada in 2009. (DE-cv107 10 at 2-3). When enrolling in
the States employee deferred retirement program, Brenner could not designate
Jones as a joint annuitant because Florida law does not treat the two as married.
(DE-cv107 10 at 3). Ordinarily, an employee may designate his spouse as a joint
annuitant, who would receive certain benefits upon the employees death. (DE-

cv107 10 at 3). The DMS Secretary administers the States employee retirement
and pension programs and its employee health insurance plan. (DE-cv107 10 at 6;
DE-cv138 16 at 9).
Schlairet and Russ have been in a relationship since 1999. (DE-cv107 10 at
4). They registered as domestic partners in Fort Lauderdale in 2001 and held a
public commitment ceremony. (DE-cv107 10 at 4). When they sought a marriage
license from the Clerk earlier this year, the Clerk refused because Floridas
marriage laws preclude issuance of such a license to same-sex couples. (DE-cv107
10 at 4-5).
The second set of plaintiffsthe Grimsley plaintiffsinclude Sloan
Grimsley, her same-sex partner Joyce Albu, fifteen other individuals, and Save
Foundation, Inc., an advocacy group. (DE-cv138 16 at 1, 4-8). All of the Grimsley
individual plaintiffs entered same-sex marriages in other jurisdictions. (DE-cv138
16 at 1). Several are current or former State employees who want to designate their
partners to receive state retirement, pension, or health insurance benefits. (DEcv138 16 at 4-6, 9; DE-cv107 42 at 11).
One of the Grimsley plaintiffs, Arlene Goldberg, married Carol Goldwasser
in New York in 2011. (DE-cv138 16 at 7). Ms. Goldwasser died in Florida in 2014.
(DE-cv138 16 at 7). Her death certificate listed Never Married for marital status,
and None for spouse. (DE-cv138 16 at 8). Ms. Goldberg wanted the death

certificate amended to reflect her marriage to Ms. Goldwasser. (DE-cv138 16 at 8).

The Health Secretary is responsible for creating forms for certifications of death in
Florida and for maintaining those certifications as vital records once they have
been completed and submitted. (DE-cv138 16 at 9).
Both suits challenged article I, section 27, of the Florida Constitution, and
section 741.212, Florida Statutes, which define marriage as the legal union of one
man and one woman and preclude recognition of other types of unions. (DE-cv107
10 at 7-8; DE-cv138 16 at 1-2). The Brenner complaint also challenged section
741.04(1), which precludes issuance of a marriage license to same-sex couples.
(DE-cv107 10 at 7-8).
Both sets of plaintiffs moved for preliminary injunctions, (DE-cv107 11,
42), and the defendants moved to dismiss, (DE-cv107 49, 50). The district court
dismissed the Governor and the Attorney General as defendants in both cases, but
it otherwise denied the motions to dismiss. (DE-cv107 74 at 30; DE-cv138 23 at
30).
The district court granted the plaintiffs motions for preliminary injunction.
(DE-cv107 74 at 31; DE-cv138 23 at 31) (the Order). After concluding that
Floridas marriage laws implicate a fundamental right to marry and could not
survive strict scrutiny analysis, the district court determined that the plaintiffs were
likely to prevail on the merits. (Order at 3, 27). The court enjoined the Health

Secretary and the DMS Secretary from enforcing Floridas marriage provisions.
(Order at 31). The injunctions also required the Health Secretary to issue a
corrected death certificate for Carol Goldwasser showing that at the time of her
death she was married to Arlene Goldberg. (Order at 31). Finally, the district
court ordered the Clerk of Court to issue a marriage license to Schlairet and Russ.
(Order at 32).
The district court temporarily stayed the injunctions pending the outcome of
petitions for certiorari filed with the United States Supreme Court regarding
appeals in the Fourth and Tenth Circuits, and for an additional 90 days
[thereafter] to allow the defendants to seek a longer stay from this court or a stay
from the Eleventh Circuit or Supreme Court. (Order at 29).2 On October 6, the
United States Supreme Court denied those petitions, so the district courts stay is
currently scheduled to end on January 5, 2015. (DE-cv107 95 at 1). 3
The district court entered a separate, but identical, preliminary injunction
order in each of the two consolidated cases. (DE-cv107 74 at 30; DE-cv138 23 at
30). All appellants timely appealed. (DE-cv107 77; DE-cv138 25). This Court
consolidated the two appeals.
2
The district court did not stay the portion of the order requiring an amended
death certificate. (Order at 29).
3
By a separate motion to be filed shortly, the defendants will ask this Court to
stay the Order pending resolution of this appeal. The district court recently denied
that relief. (DE-cv107 95).
5

Standard of Review
This Court reviews a district courts entry of a preliminary injunction for an
abuse of discretion, but it reviews de novo the legal conclusions on which it turns.
Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d
1177, 1198 (11th Cir. 2009). Therefore, even on review of a preliminary
injunction, this Court will review and correct [] error without deference to [the
trial] courts determination. Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498,
1505 (11th Cir. 1992); see also Forsyth Cnty. v. U.S. Army Corps of Engrs, 633
F.3d 1032, 1039 (11th Cir. 2011) (district court abuses its discretion if it applies
incorrect legal standard).

SUMMARY OF THE ARGUMENT

Florida has long defined marriage as the union of one man and one woman.
In 2008, voters amended the Florida Constitution to reaffirm that policy. The
United States Constitution does not prohibit Florida or its voters from making that
choice, and the district courts contrary conclusion was wrong.
As the Supreme Court has recognized, States have the virtually exclusive
authority to define and regulate marriage. Consistent with that authority, States
may choose to allow same-sex marriage, as several States have. But States may
also choose to maintain a traditional definition of marriage, as several other States
have. Principles of federalism leave the choice to the States.
The United States Supreme Courts decision in Baker v. Nelson is consistent
with these principles. In Baker, the plaintiffs claimed the Fourteenth Amendment
required States to allow same-sex marriage, the same claim the plaintiffs present
here. The Supreme Courts summary dismissal was a decision on the merits that
rejected those claims, and it is binding on this Court. None of the more recent
Supreme Court cases undermine Baker, much less overrule it. In fact, the Supreme
Courts most recent decision regarding same-sex marriage, United States v.
Windsor, is fully consistent with the principle that federalism allows States to
define marriage.

No fundamental right is at issue here because same-sex marriage is not

deeply rooted in this Nations history and tradition. The decisions recognizing
marriage as a fundamental right, including Loving v. Virginia, all turned on the
historical understanding of marriage as the union of a man and a woman.
Because no fundamental right is at issue, and because there is no other basis
for applying heightened scrutiny, only rational basis applies. Floridas laws satisfy
this deferential standard. Floridas laws therefore do not violate the Due Process
and Equal Protection Clauses of the Fourteenth Amendment. Nor do they violate
the right to travel, the Establishment Clause, or a right to intimate association.
This Court should reverse.

ARGUMENT
The public is currently engaged in an active political debate over whether
same-sex couples should be allowed to marry. Hollingsworth v. Perry, 133 S. Ct.
2652, 2659 (2013). Many people understandably have strong feelings about the
issue, and the debatewith good people on all sides, United States v. Windsor,
133 S. Ct. 2675, 2710 (2013) (Scalia, J., dissenting)has generated plenty of
passion. It has also generated political change. Since 2003, when same-sex
marriage first appeared in the United States, a number of States have amended
their laws through the democratic process to recognize those marriages. See id. at
2689 (majority opinion); see also id. at 2715 (Alito, J., dissenting) (tracing
relatively recent chronology of same-sex marriage recognition). Florida has not.
The issue in this case is whether this Court should short-circuit the political
process, remove voters from the policy determinations, and hold that the United
States Constitution mandates how States must define marriage.
As it has in other contexts, this Court should exercise great caution when
asked to take sides in an ongoing public policy debate, and it should leave
Floridas important policy determination to Floridas citizens. Lofton v. Secy, Fla.
Dept of Children & Family Servs., 358 F.3d 804, 827 (11th Cir. 2004). Recently,
Floridas voters engaged in a statewide deliberative process that enabled [them] to
discuss and weigh arguments for and against same-sex marriage. Windsor, 133 S.

Ct. at 2689. Millions of them voted on the matter in 2008, and a majority decided
to re-affirm Floridas long-standing definition of marriage as the union of one man
and one woman, 4 a definition long existing in Florida, see, e.g., Coogler v. Rogers,
7 So. 391, 393 (Fla. 1889), and specifically codified by the Legislature, see
741.212, 741.04(1), Fla. Stat.
This case is not about which policy choice is better. It is about whether the
voters (and their elected officials) get to decide. As the political debate continues,
Floridas voters may one day decide differently. They may not. But in the
meantime, this Court should allow the political process to continue; it should
protect the voters right to decide. Because the United States Constitution permits
the choice Floridas voters made, this Court should reverse.
THE DISTRICT COURTS ORDER IS INCONSISTENT
FEDERALISM.
I.
WITH
PRINCIPLES
OF
The Supreme Court has repeatedly recognized that the definition, regulation,
and recognition of marriage have been the virtually exclusive province of the
States. Windsor, 133 S. Ct. at 2691. This federal deference is consistent with
principles of federalism and was necessarily central to Baker v. Nelson, which
decades ago rejected the claim that the Fourteenth Amendment requires States to
allow same-sex marriage. See 409 U.S. 810, 93 S. Ct. 37 (1972).
4
See
Fla.
Dept
of
State,
Div.
of
Elections,
http://election.dos.state.fl.us/initiatives/initdetail.asp?account=41550&seqnum=1
(last visited November 14, 2014).
10

A.
States Have Nearly Exclusive Authority to Define and Regulate

Marriage.
Under our system of federalism, States are residuary sovereigns and joint
participants in the governance of the Nation. Alden v. Maine, 527 U.S. 706, 748,
119 S. Ct. 2240, 2263 (1999). The federal system rests on what might at first
seem a counterintuitive insight, that freedom is enhanced by the creation of two
governments, not one. Bond v. United States, 131 S. Ct. 2355, 2364 (2011)
(quoting Alden, 527 U.S. at 758, 119 S. Ct. at 2268). But when they split[] the
atom of sovereignty, Alden, 527 U.S. at 751, 119 S. Ct. at 2265 (internal quotation
and citation omitted), the Founders indeed did so to enhance liberty, not to allow
the National Government to divest liberty protections granted by the States,
DeBoer v. Snyder, Case No. 14-1341, -- F.3d --, 2014 WL 5748990, at *19 (6th
Cir. Nov. 6, 2014).
One of the spheres of power reserved to the States is domestic relations,
including the definition of marriage. [A]t the time of the adoption of the
Constitution, [the States] possessed full power over the subject of marriage and
divorce, and the Constitution delegated no authority to the government of the
United States on the subject. Haddock v. Haddock, 201 U.S. 562, 575, 26 S. Ct.
525, 529 (1906); see also In re Burrus, 136 U.S. 586, 593-94, 10 S. Ct. 850, 853
(1890) (The whole subject of the domestic relations of husband and wife, parent
and child, belongs to the laws of the states, and not to the laws of the United
11

States.). States therefore had the absolute right to prescribe the conditions upon
which the marriage relation between its own citizens shall be created, and the
causes for which it may be dissolved. Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 73435 (1877). More recently, the Supreme Court reiterated and reaffirmed this idea:
Regulation of marriage and other areas of domestic relations have long been
regarded as a virtually exclusive province of the States. Sosna v. Iowa, 419 U.S.
393, 404, 95 S. Ct. 553, 559 (1975).
Even in United States v. Windsor, on which the district court and plaintiffs
heavily rely, the Supreme Court recognized that [b]y history and tradition the
definition and regulation of marriage . . . has been treated as being within the
authority and realm of the separate States. 133 S. Ct. at 2689-90; see also id. at
2691 (The recognition of civil marriages is central to state domestic relations law
applicable to its residents and citizens, and [t]he definition of marriage is the
foundation of the States broader authority to regulate the subject of domestic
relations . . . .). In fact, it was precisely because the federal Defense of Marriage
Act depart[ed] from this history and tradition of reliance on state law to define
marriage that it suggested a discrimination[] of an unusual character warranting
invalidation. Id. at 2692 (majority opinion) (quoting Romer v. Evans, 517 U.S. 620,
633, 116 S. Ct. 1620, 1628 (1996)); cf. id. at 2697 (Roberts, C.J., dissenting) (The
dominant theme of the majority opinion is that the Federal Governments intrusion
12

into an area central to state domestic relations law applicable to its residents and
citizens is sufficiently unusual to set off alarm bells . . . . [I]t is undeniable that
its judgment is based on federalism.); DeBoer, 2014 WL 5748990, at *6
(Windsor hinges on the Defense of Marriage Acts unprecedented intrusion into
the States authority over domestic relations.).
Rather than recognize the history of federal deference to States in areas of
marital relations, the district court suggested that any such deference ended with
Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967). (Order at 15-16). But the
district court misunderstood the holding of Loving, an important case that rightly
ended bans on interracial marriage, but which said nothing about how States define
marriage. See DeBoer, 2014 WL 5748990, at *16 (Loving addressed, and rightly
corrected, an unconstitutional eligibility requirement for marriage; it did not create
a new definition of marriage.).
B.
Loving v. Virginia Does Not Undermine States Authority to

Define Marriage as a Union Between One Man and One Woman.
At the time of Loving, marriage between a man and a woman no doubt

[was] thought of . . . as essential to the very definition of that term. Windsor, 133
S. Ct. at 2689; see also DeBoer, 2014 WL 5748990, at *16 (In referring to
marriage rather than opposite-sex marriage, Loving confirmed only that
opposite-sex marriage would have been considered redundant, not that marriage
included same-sex couples.). The issue in Loving was not whether to change that
13

definition; the issue was whether Virginia could proscribe generally accepted
conduct if engaged in by members of different races. Loving, 388 U.S. at 11, 87 S.
Ct. at 1823. The Court correctly held that Virginia could not. But not because the
parties in Loving had a federal constitutional right to marry anyone at allit was
because restricting the freedom to marry solely because of racial classifications
violates the central meaning of the Equal Protection Clause. Id. at 12, 87 S. Ct. at
1823. Indeed, the Virginia laws violated [t]he clear and central purpose of the
Fourteenth Amendment, which was to eliminate all official state sources of
invidious racial discrimination in the States. Id. at 10, 87 S. Ct. at 1823.
In Palmore v. Sidoti, like in Loving before it, the Constitutions
commitment to eradicating discrimination based on race justified the Supreme
Courts intervention in a States domestic relations province. 466 U.S. 429, 432,
104 S. Ct. 1879, 1881 (1984). Palmore involved a state court judgment divesting
a natural mother of the custody of her infant child because of her remarriage to a
person of a different race. Id. at 430, 104 S. Ct. at 1880. Reiterating that the core
purpose of the Fourteenth Amendment was to do away with all governmentally
imposed discrimination based on race, id. at 432, 104 S. Ct. at 1881-82 (note
omitted), the Supreme Court reversed a state court custody determination because
of the unjustified racial classification that resulted in removing an infant child
from the custody of its natural mother. Id. at 434, 104 S. Ct. at 1882-83. Noting
14

that a child custody decision is not ordinarily a likely candidate for review by this
Court, the case nevertheless raise[d] important federal concerns arising from the
Constitutions commitment to eradicating discrimination based on race. Id. at
431-32, 104 S. Ct. at 1881.
When Windsor explained that a States marriage laws must respect the
constitutional rights of persons, 133 S. Ct. at 2691 (citing Loving), it did so in the
context of noting that marriage remains the virtually exclusive province of the
States, id. (quoting Sosna, 419 U.S. at 404, 95 S. Ct. at 559). Just as the holding in
Palmore did not give federal courts wide latitude to intrude into child custody
disputes, the holding in Loving does nothing to undermine States authority to
define marriage as the union of one man and one woman.
C.
Baker v. Nelson Remains Binding Precedent.
Only five years after Loving, the Supreme Court unanimously dismissed,
for want of a substantial federal question, an appeal from the Minnesota
Supreme Court presenting precisely the issue herewhether a States decision not
to allow same-sex marriage violated due process or equal protection under the
Fourteenth Amendment. Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37 (1972);
Jurisdictional Statement of Appellants at 3, Baker v. Nelson, No. 71-1027 (U.S.
Feb. 11, 1971); Baker v. Nelson, 191 N.W.2d 185, 185-87 (Minn. 1971).
15

In Baker, two men were unable to marry because Minnesota law defined
marriage as being between a man and a woman. Jurisdictional Statement of
Appellants at 3-4, Baker v. Nelson, No. 71-1027 (U.S. Feb. 11, 1971); Baker, 191
N.W.2d at 185. The Minnesota Supreme Court held that the law did not violate
federal due process or equal protection, Baker, 191 N.W.2d at 186-87, and the
plaintiffs asked the United States Supreme Court to reverse. On direct appeal, the
Supreme Court summarily dismissed. See Baker v. Nelson, 409 U.S. 810, 93 S. Ct.
37 (1972).5 That decision was one on the merits, without doubt reject[ing] the
specific challenges presented in the statement of jurisdiction, and prevent[ing]
lower courts from coming to opposite conclusions on the precise issues presented.
Mandel v. Bradley, 432 U.S. 173, 176, 97 S. Ct. 2238, 2240 (1977).
Bakers determination is fully consistent with the Supreme Courts earlier
pronouncements regarding the States authority in domestic relations. Coming just
five years after Loving, it also highlights the unique exception that the Supreme
Court carved out to eliminate racial discrimination in a States domestic relations
laws, consistent with the central purpose of the Fourteenth Amendment. Cf. Baker,
191 N.W.2d at 187 ([I]n commonsense and in a constitutional sense, there is a
The dismissal was of a mandatory appeal brought pursuant to a former

provision of 28 U.S.C. 1257. That particular provision was repealed in 1988. See
Pub. L. No. 100-352.
16

clear distinction between a marital restriction based merely upon race and one
based upon the fundamental difference in sex.).
Baker remains binding for federal courts until such time as the [Supreme]
Court informs them that [it is] not. Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.
Ct. 2281, 2289 (1975) (quotations, brackets, and citation omitted). Until Windsor,
numerous federal courts recognized that Baker continued to control on the issue it
presented. See, e.g., Massachusetts. v. HHS, 682 F.3d 1, 8 (1st Cir. 2012) (stating
that Baker v. Nelson forecloses arguments that presume or rest on a constitutional
right to same-sex marriage); McConnell v. Nooner, 547 F.2d 54, 55-56 (8th Cir.
1976) (recognizing that Baker v. Nelson is binding on the lower federal courts
regarding absence of federal right to same-sex marriage); Sevcik v. Sandoval, 911
F. Supp. 2d 996, 1002-03 (D. Nev. 2012) (concluding that Baker v. Nelson
precludes equal protection challenge to a states refusal to recognize same-sex
marriage), revd sub nom. Latta v. Otter, -- F.3d --, 2014 WL 4977682 (9th Cir.
Oct. 7, 2014); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1088 (D. Haw.
2012) (noting that Baker is the last word from the Supreme Court that state law
limiting marriage to opposite-sex couples does not violate the Equal Protection
Clause and remains binding on this Court), vacated as moot, -- F. Appx --, 2014
WL 5088199 (9th Cir. Oct. 10, 2014); Wilson v. Ake, 354 F. Supp. 2d 1298, 1304-
17

05 (M.D. Fla. 2005) (noting that Baker v. Nelson is binding precedent upon this
Court regarding Fourteenth Amendment challenge to Floridas marriage law).
Some recent federal court decisions, however, have found Baker v. Nelson
no longer binding because of doctrinal developments. To be sure, the Supreme
Court explained that inferior federal courts had best adhere to the view that if the
Court has branded a question as unsubstantial, it remains so except when doctrinal
developments indicate otherwise. Hicks, 422 U.S. at 344, 95 S. Ct. at 2289
(quotations and citation omitted; emphasis supplied). But the doctrinal
developments exception is necessarily a narrow one. After Hicks, the Supreme
Court stated without qualification that [i]f a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in some other line of
decisions, [lower courts] should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions. Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921-22 (1989).
In this case, the district court concluded in a single sentence that the
intervening doctrinal developmentsas set out in Lawrence, Romer, and
Windsorhave sapped Bakers precedential force. (Order at 25). But this runs
contrary to the Supreme Courts instruction that lower courts not conclude [that]
more recent [Supreme Court] cases have, by implication, overruled an earlier
precedent. Agostni v. Felton, 521 U.S. 203, 237, 117 S. Ct. 1997, 2017 (1997)
18

(emphasis supplied); accord id. at 208-09, 237-38, 117 S. Ct. at 2003, 2017
(explaining that lower court correctly recognized that binding earlier Court
precedent had to be followed, even if it could not be squared with later Court
jurisprudence in area, unless and until this Court reinterpreted the binding
precedent). It also runs contrary to recent federal court decisions recognizing
Bakers continued vitality. See DeBoer, 2014 WL 5748990, at *5 ([W]e have no
license to engage in a guessing game about whether the Court will change its mind
or, more aggressively, to assume authority to overrule Baker ourselves.); CondeVidal v. Garcia-Padilla, Case No. 14-cv-1253, -- F. Supp. 3d
--, 2014 WL
5361987, at *6 (D.P.R. Oct. 21, 2014) (following Baker v. Nelson as still-binding

authority). More importantly, in concluding that Romer v. Evans and Lawrence v.
Texas signaled the end of Baker, the district court disregarded this Courts
statements about those decisions limited effects.
The issue in Lawrence v. Texas was whether state laws criminalizing
homosexual conduct violated the federal constitution. 539 U.S. 558, 563-64, 123 S.
Ct. 2472, 2476 (2003). This Court recognized that decisions narrow reach,
explaining that [t]he [Supreme] Court itself stressed the limited factual situation it
was addressing in Lawrence. Lofton, 358 F.3d at 815-17, 826-27. The Court then
quoted Lawrences acknowledgment that the case does not involve whether the
government must give formal recognition to any relationship that homosexual
19

persons seek to enter. Id. at 817 (quoting Lawrence, 539 U.S. at 578, 123 S. Ct. at
2484). And although this Court later noted that the Supreme Court may in due
course expand Lawrences precedent, it recognized that for this Court
preemptively to take that step would exceed [its] mandate as a lower court.
Williams v. Attorney Gen. of Ala., 378 F.3d 1232, 1238 (11th Cir. 2004).
This Court has also declined to expand Romer v. Evanss narrow holding. In
Romer, the Supreme Court invalidated a State constitutional amendment that
repealed and barred protections against sexual-orientation discrimination. The
rare law represented discrimination[] of an unusual character. 517 U.S. at 633,
116 S. Ct. at 1628 (internal quotation and citation omitted). This Court later held
that Romer presented a unique factual situation and narrow holding that did not
guide this Court on the question of whether states could restrict adoption rights of
homosexuals. Lofton, 358 F.3d at 826-27. That narrow holding did not overrule
Baker. Indeed, neither Lawrence nor Romer mentions Baker, and neither is
inconsistent with its outcome. DeBoer, 2014 WL 5748990, at *16.
That leaves Windsor. But Windsor no more overruled Baker than did
Lawrence or Romer. It dealt with a federal law defining marriage, repeatedly
discussed the virtually exclusive province of states to define marriage, and never
even mentioned Baker. Windsor invalidated a federal law that refused to respect
state laws permitting gay marriage, while Baker upheld the right of the people of a
20

State to define marriage as they see it. To respect one decision does not slight the
other. DeBoer, 2014 WL 5748990, at *6; accord Conde-Vidal, 2014 WL
5361987, at *8 (court cannot interpret Windsors endorsement of the state control
of marriage as eliminating state control of marriage.). In fact, Windsor only
reaffirmed the principle underlying Bakerthat definitions of marriage are left to
the States. 6
EVEN PUTTING ASIDE FEDERALISM AND BAKER V. NELSON, FLORIDAS
MARRIAGE LAWS DO NOT VIOLATE THE FOURTEENTH AMENDMENT.
II.
Because Baker controls, this Court need look no further. But even without
Baker or the principles of federalism that support it, the district courts decision
was wrong.
The United States Supreme Courts recent orders denying certiorari in several
cases that rejected Baker do not change this. For at least eight decades the
Supreme Court has instructed [courts], time and again, over and over, that the
denial of certiorari does not in any way or to any extent reflect or imply any view
on the merits. Powell v. Barrett, 541 F.3d 1298, 1312 n.5 (11th Cir. 2008) (en
banc); accord United States v. Carver, 260 U.S. 482, 490, 43 S. Ct. 181, 182
(1923) (denial of certiorari imports no expression of opinion upon the merits of
the case, as the bar has been told many times). Rather than signal the end of the
issue, [o]ften, a denial of certiorari on a novel issue will permit the state and
federal courts to serve as laboratories in which the issue receives further study
before it is addressed by [the Supreme] Court. Lackey v. Texas, 514 U.S. 1045,
1045, 115 S. Ct. 1421, 1422 (1995) (Stevens, J., respecting denial of certiorari
petition) (quoting McCray v. New York, 461 U.S. 961, 963, 103 S. Ct. 2438, 2439
(1983)).
21

A.
Floridas Marriage Laws Do Not Violate the Fundamental Right

to Marry.
Relying again on Loving, the district court found a fundamental right to

same-sex marriage protected by the Fourteenth Amendment. (Order at 3). The
court then applied strict scrutiny and held Floridas marriage laws unconstitutional.
(Order at 3). This was error.
The Due Process Clause includes a substantive component that provides
heightened protection against government interference with certain fundamental
rights and liberty interestsbut only those fundamental rights and liberties
which are, objectively, deeply rooted in this Nations history and tradition. . . and
implicit in the concept of ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed. Washington v. Glucksberg, 521 U.S. 702, 720-21,
117 S. Ct. 2258, 2267-68 (1997) (internal quotations and citations omitted); accord
Doe v. Moore, 410 F.3d 1337, 1342-43 (11th Cir. 2005). Having not appeared in
the United States until 2003, see Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting),
same-sex marriage is not objectively or deeply rooted in this Nations history.
Therefore, rather than protect an existing fundamental right, the plaintiffs seek to
establish a new one.
The creation of a new fundamental right is no easy task. The Supreme Court
and this Court have been very reluctant to expand substantive due process by
recognizing new fundamental rights. Moore, 410 F.3d at 1343; accord Lofton,
22

358 F.3d at 816 (discussing reluctance to find new right). Judicial caution in this
area is important not only because guideposts for responsible decisionmaking in
this unchartered area are scarce and open-ended, Collins v. City of Harker
Heights, Tex., 503 U.S. 115, 125, 112 S. Ct. 1061, 1068 (1992), but also because of
the separation of powers. By extending constitutional protection to an asserted
right or liberty interest, [courts], to a great extent, place the matter outside the
arena of public debate and legislative action. Glucksberg, 521 U.S. at 720, 117 S.
Ct. at 2267-68. And without great caution, too much could be removed from the
arena of public debate and decided instead by the policy preferences of the
Members of [the] Court. Id. at 720, 117 S. Ct. at 2268.
Consistent with this judicial reluctance to expand fundamental rights, courts
require that parties asserting fundamental rights must provide a careful
description of the asserted right. Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct.
1439, 1447 (1993); accord Glucksberg, 521 U.S. at 721, 117 S. Ct. at 2268. Then,
to rein in the subjective elements that are necessarily present in due-process
judicial review, the court must carefully examine that carefully described right
and rest its substantive due process analysis on concrete examples involving
fundamental rights found to be deeply rooted in our legal tradition. Glucksberg,
521 U.S. at 722, 117 S. Ct. at 2268.
23

The district court exhibited no such reluctance to expand fundamental rights.

Rather than carefully describing the right actually asserted by the plaintiffs as the
right to marry someone of the same sex, the district court viewed marriage as any
union between any two people, as though same-sex marriage were a necessary
component of marriage as historically defined. The court made no effort to identify
what the term marriage was understood to mean when used in cases discussing
the fundamental right to marry. Instead, it only addressed what the appropriate
level of generality should be for describing that right, ultimately settling on the
right to choose ones spouse. (Order at 19-20).
The district court effectively engaged in what one circuit judge labeled
dictionary jurisprudence, which defines terms as convenient to attain an end. See
Bostic v. Schaefer, 760 F.3d 352, 386, 391 (4th Cir.), cert. denied sub nom. Rainey
v. Bostic, 135 S. Ct. 286 (2014) (Niemeyer, J., dissenting) (This analysis is
fundamentally flawed because it fails to take into account that the marriage that
has long been recognized by the Supreme Court as a fundamental right is distinct
from the newly proposed relationship of a same-sex marriage.); cf. Bishop v.
Smith, 760 F.3d 1070, 1113 (10th Cir.), cert. denied, 135 S. Ct. 271 (2014) (Kelly,
J., concurring in part and dissenting in part) (Removing gender complementarity
from the historical definition of marriage is simply contrary to the careful analysis
prescribed by the Supreme Court when it comes to substantive due process.).
24

The district court looked to three casesLoving, Zablocki v. Redhail,7 and

Turner v. Safely8to justify the level of generality at which it considered the
asserted right. By the district courts analysis, the Supreme Court did not look to
whether the right asserted was one to interracial marriage or debtor marriage or
prisoner marriage, only to the right to choose ones own spouse . . . regardless
of whom the individual chooses to marry. (Order at 20). But those cases do not
guarantee the right to marry by everyone and to anyone, Bostic, 760 F.3d at 386
(Niemeyer, J., dissenting) or to everyone without limitation, Robicheaux v.
Caldwell, 2 F. Supp. 3d 910, 922 n.13 (E.D. La. 2014).
Those cases did not examine whether interracial marriage or debtor
marriage or prisoner marriage was deeply rooted in the Nations history or
tradition, because they did not have to. While the context for asserting the right
varied in each of those cases, it varied only in ways irrelevant to the concept of
marriage. The type of relationship sought was always the traditional, man-woman
relationship to which the term marriage was theretofore always assumed to
refer. Bostic, 760 F.3d at 390-91 (Niemeyer, J., dissenting); accord DeBoer, 2014
WL 5748990, at *17 (When Loving and its progeny used the word marriage, they
did not redefine the term but accepted its traditional meaning.).
7
434 U.S. 374, 98 S. Ct. 673 (1978).
482 U.S. 78, 107 S. Ct. 2254 (1987).

25

Another problem with the district courts approach to the asserted right is
that it provides no endpoint. If the district court were correct that at issue is the
right to choose any spouse, (Order at 20), then numerous other restrictions on that
rightage restrictions to name just onewould be at risk under strict scrutiny. Cf.
Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006) (states can
legitimately impose age restrictions and other reasonable restrictions on those
eligible to marry); see also Robicheaux, 2 F. Supp. 3d at 922 n.13 (noting that the
fundamental rights argument would cut against other State restrictions on
marriages); Conde-Vidal, 2014 WL 5361987, at *10 (same). The district courts
rule provides no limiting principle.
On the other hand, [o]ne of the virtues of the democratic process is that,
unlike the judicial process, it need not take matters to their logical conclusion.
Williams, 378 F.3d at 1250. Therefore, other States that have allowed same-sex
marriage through their lawmaking processes have not had to adopt the broad rule
that the district court adopts; they have not had to open the door to other types of
challenges. The line-drawing problems the district courts determination presents
are among the reasons this Court should leave Floridas definition of marriage to
Floridas citizens.
Undoubtedly, to many people (and several States), the definition of marriage
is changing. But that does not transform the fundamental-rights decision of
26

Loving under the old definition into a constitutional right under the new
definition. DeBoer, 2014 WL 5748990, at *17. Instead, it remains that the only
fundamental right to marry deeply rooted in this Nations history and tradition is
the traditionally understood onethe union of one man and one woman.
Therefore, Floridas laws do not infringe on any fundamental right.
B.
Floridas Marriage Laws Do Not Otherwise Require Heightened

Scrutiny.
There is no other basis for subjecting Floridas marriage laws to heightened

scrutiny. This Court has expressly rejected the recognition of a new fundamental
right to private sexual intimacy stemming from sexual orientation. See Lofton,
358 F.3d at 815-16, 818. This Court also rejected application of any heightened
scrutiny to classifications based on sexual orientation. See id. at 817-18. And
Floridas marriage laws do not discriminate on the basis of sex because they apply
equally to men and women. Absent implication of a fundamental right or a suspect
classification, a statutes constitutionality under the Fourteenth Amendment must
be analyzed under the highly deferential rational basis standard. See id. at 818;
Moore, 410 F.3d at 1345, 1346. Floridas laws satisfy that deferential standard.
C.
Floridas Long-Standing, Traditional Definition of Marriage

Satisfies the Rational Basis Standard.
Rational-basis review is not about the wisdom, fairness, or logic of

legislative choices. FCC v. Beach Commcns, Inc., 508 U.S. 307, 313, 113 S. Ct.
27

2096, 2101 (1993). It turns on the presumption that even improvident decisions
will eventually be rectified by the democratic process and that judicial intervention
is generally unwarranted no matter how unwisely we may think a political branch
has acted. Id. at 314 (quotation and citation omitted). The question is simply
whether the challenged legislation is rationally related to a legitimate state interest.
See Heller v. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 2642 (1993).
Under this deferential standard, a legislative classification is accorded a
strong presumption of validity, id. at 319, 113 S. Ct. at 2642, and it must be
upheld if there is any conceivable basis which might support it, id. at 320, 113 S.
Ct. at 2643 (internal quotation and citation omitted). This holds true even if the
law seems unwise or works to the disadvantage of a particular group, or if the
rationale for it seems tenuous. Romer, 517 U.S. at 632, 116 S. Ct. at 1627.
Furthermore, legislative choices may be based on rational speculation
unsupported by evidence or empirical data, and it is entirely irrelevant for
constitutional purposes whether the conceived reason for the challenged distinction
actually motivated the legislature. Beach Commcns, 508 U.S. at 315, 113 S. Ct.
at 2102.
Because the analysis is so deferential, [a]lmost every statute subject to
[this] standard is found to be constitutional. Moore, 410 F.3d at 1346-47
(quotation and citation omitted); cf. Bruning, 455 F.3d at 867 (noting that because
28

the institution of marriage has always been, in our federal system, the
predominant concern of state government . . . rational-basis review must be
particularly deferential).
Florida has an unbroken history of defining marriage as being between a
man and woman. See, e.g., Coogler v. Rogers, 7 So. 391, 393 (Fla. 1889) (defining
marriage as a contract . . . by a man and woman, reciprocally engaging to live [as]
husband and wife). No one can argue credibly that the States historical treatment
of marriage universallyand since the Nations foundinghas been irrational. In
turn, a States effort to preserve the institution of marriage in its traditional form
a form that prevails in many States todayalso is not irrational. See Lawrence,
539 U.S. at 585, 123 S. Ct. at 2487-88 (OConnor, J., concurring) (treating
preserving the traditional institution of marriage as a legitimate state interest);
see also DeBoer, 2014 WL 5748990, at *9 (A dose of humility makes us hesitant
to condemn as unconstitutionally irrational a view of marriage shared not long ago
by every society in the world, shared by most, if not all, of our ancestors, and
shared still today by a significant number of the States.); Robicheaux, 2 F. Supp.
3d at 920 (The Court is persuaded that a meaning of what is marriage that has
endured in history for thousands of years, and prevails in a majority of states today,
is not universally irrational on the constitutional grid.).
29

Moreover, it is rational for Florida to consider the experience of other states

before deciding whether to change the definition of marriage. As the Sixth Circuit
concluded, a State might wish to wait and see before changing a norm that our
society (like all others) has accepted for centuries. DeBoer, 2014 WL 5748990, at
*11. This is consistent with the principle of federalism that permits laboratories of
experimentation . . . allowing one State to innovate one way, another State another,
and a third State to assess the trial and error over time. Id.
Numerous courts have found rational bases for traditional marriage laws like
Floridas. See, e.g., Robicheaux, 2 F. Supp. 3d at 919-20 (finding state law that
defined and recognized marriage only in terms of opposite-sex couples furthered
legitimate state interest in safeguarding that fundamental social change . . . is
better cultivated through democratic consensus); DeBoer, 2014 WL 5748990, at
*9-13; Sevcik, 911 F. Supp. 2d at 1014-17; Jackson, 884 F. Supp. 2d at 1106-18 &
n.36; In re Marriage of J.B. and H.B., 326 S.W.3d 654, 677-78 (Tex. App. 2010);
Standhardt v. Superior Court, 77 P.3d 451, 461-65 (Ariz. Ct. App. 2003); Singer v.
Hara, 522 P.2d 1187, 1197 (Wash. Ct. App. 1974); Baker, 191 N.W.2d at 187; see
also generally Dean v. District of Columbia, 653 A.2d 307, 331-33 (D.C. 1995)
(refusing to find new right to strike down traditional marriage law). In order for
this Court to find invalidate Floridas marriage laws, it first would have to
conclude that the identified bases in all of these cited cases were completely
30

irrational. There is a conceivable rational basis for Florida to define marriage as it

has.
Floridas decision to preclude recognition of same-sex marriages entered
into in other States is likewise rational. [A] State does not behave irrationally by
insisting upon its own definition of marriage rather than deferring to the definition
adopted by another State. DeBoer, 2014 WL 5748990, at *24. The States ability
to decide whether to recognizeor not recognizeout-of-state marriages
preserves the States authority to define marriage in the first place. Id. It serves the
additional purpose of discourag[ing] evasion of the States marriage laws by
allowing individuals to go to another State, marry there, then return home. Id.
Regarding Floridas decision to limit certain benefits to traditional married
couples, there is another critical point. The package of government benefits and
restrictions that accompany the institution of formal marriage serve a variety of
other purposes. The legislatureor the people through the initiative processmay
rationally choose not to expand in wholesale fashion the groups entitled to those
benefits. Bruning, 455 F.3d at 868; accord Vance v. Bradley, 440 U.S. 93, 109, 99
S. Ct. 939, 948 (1979) (accepting imperfection of package of benefits afforded a
class of employees because it was rationally related to the secondary objective of
legislative convenience).
31

The legitimate justifications for Floridas laws undermine any argument that
they were motivated purely by animus. Although the plaintiffs pursued an animus
theory below, they offered nothing beyond the isolated comments of a few
individuals; they did not demonstrate that those comments reflected the
motivations of the Legislature that passed the statutes or the millions of Floridians
who voted for the constitutional amendment. As Justice Kennedy, writing for three
justices earlier this year, explained: It is demeaning to the democratic process to
presume that the voters are not capable of deciding an issue of this sensitivity on
decent and rational grounds. Schuette v Coal. to Defend Affirmative Action, 134 S.
Ct. 1623, 1637 (2014) (plurality).
Regardless, it is a familiar practice of constitutional law that this court will
not strike down an otherwise constitutional statute on the basis of an alleged illicit
legislative motive. Michael M. v. Superior Court, 450 U.S. 464, 472, 101 S. Ct.
1200, 1205 n.7 (1981) (quoting United States v. OBrien, 391 U.S. 367, 383, 88 S.
Ct. 1673, 1682 (1968)); see also Lofton, 358 F.3d at 820 ([I]t is entirely irrelevant
for constitutional purposes whether the conceived reason for the challenged
distinction actually motivated the legislature. Instead, the question before us is
[what] the Florida legislature could have reasonably believed . . . .) (internal
citation and quotations omitted).
32

It has been, and continues to be, rational for Florida to maintain the
traditional version of marriage. Floridas marriage laws therefore do not violate
due process or equal protection guarantees.
III.
THE PLAINTIFFS REMAINING CONSTITUTIONAL CLAIMS CANNOT

SUCCEED.
The Brenner plaintiffs presented additional constitutional claims that the
district court did not address. None of these additional claims provides any basis to
invalidate Floridas laws.
A.
Floridas Marriage Laws Do Not Impair the Right to Travel.
The Brenner plaintiffs asserted that Floridas marriage provisions violated

their right to interstate travel. (DE-cv107 10 at 13-14). The constitutional right to
travel actually protects three distinct rights: (1) the right of a citizen of one State
to enter and to leave another State; (2) the right to be treated as a welcome
visitor rather than an unfriendly alien when temporarily present in the second
State; and (3) for a traveler electing to become a permanent resident of another
State, the right to be treated like other citizens of that State. Saenz v. Roe, 526
U.S. 489, 500, 119 S. Ct. 1518, 1525 (1999).
The first species of the right to travel addresses the right to move physically
from State to State. See id. at 500-01, 119 S. Ct. at 1525. The plaintiffs are
residents, not travelers, rendering this first component inapplicable. The second
species of right rests with a citizen from one State who travels temporarily into
33

another State. See id. at 501-02, 119 S. Ct. at 1525-26. A State cannot treat
nonresidents differently from its own citizens, based solely on their state
citizenship. See Hicklin v. Orbeck, 437 U.S. 518, 523-25, 98 S. Ct. 2482, 2486-87
(1978). Again, the plaintiffs are Florida residents, not visitors, so this component is
inapplicable. That leaves the third aspect of the right to travel, which the Supreme
Court characterized as the right of the newly arrived citizen to the same privileges
and immunities enjoyed by other citizens of the same State. Saenz, 526 U.S. at
502, 119 S. Ct. at 1526. This right embraces the citizens right to be treated
equally in her new State of residence . . . . Id. at 505, 119 S. Ct. at 1527. A States
law cannot distinguish between new residents and old residents to favor the latter.
See Zobel v. Williams, 457 U.S. 55, 65, 102 S. Ct. 2309, 2315 (1982). The
challenged laws make no distinction between or among citizens of Florida based
upon the length of their residency in Florida, so this component is likewise
inapplicable.
B.
Floridas Marriage Laws Do Not Violate the Establishment

Clause.
The Brenner plaintiffs also claimed that Floridas marriage laws violated the
Establishment Clause. (DE-cv107 10 at 14-15). Whether the Establishment Clause
is implicated depends on whether a law (1) has a secular legislative purpose; (2)
has as its primary effect to advance or inhibit religion; or (3) fosters an excessive
entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S. Ct.
34

2105, 2111 (1971). Having a religious purpose alone is not enough to invalidate a
law. Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d
1514, 1527 (11th Cir. 1993). Rather, a statute violates the Establishment Clause
only if it does not have a clearly secular purpose. Id. (internal quotations and
emphasis omitted).
Nor does a law violate the Establishment Clause just because it coincides
with the tenets of a dominant religion. See McGowan v. Maryland, 366 U.S. 420,
442, 81 S. Ct. 1101, 1113-14 (1961) (upholding Sunday closing law). There are
ample non-religious justifications for Floridas traditional definition of marriage,
so the Establishment Clause claim cannot succeed.
C.
Floridas Marriage Laws Do Not Interfere with a Fundamental

Right to Intimate Association.
Finally, the Brenner plaintiffs claimed that Floridas marriage laws interfere
with their right of intimate association. (DE-cv107 10 at 13). In Lofton, this Court
addressed and rejected the conversion of a negative, private right of intimate
associationfree from criminal prosecution or some other state-sanctioned
punitive measure (discussed in Lawrence v. Texas)into an affirmative right to
receive official and public recognition. Lofton, 358 F.3d at 817; cf. Shahar v.
Bowers, 114 F.3d 1097, 1099 (11th Cir. 1997) (en banc) (expressing considerable
doubt about existence of federal right [of woman] to be married to another
35

woman as part of right of intimate association). The plaintiffs cannot prevail on

an intimate association claim.
IV.
THE PLAINTIFFS CANNOT SATISFY

FACTORS.
THE
PRELIMINARY INJUNCTION
To obtain a preliminary injunction, plaintiffs must show a likelihood of

success on the merits, irreparable harm, a balance of equities in their favor, and
that an injunction serves the public interest. Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 374 (2008). Failure to show any of the four
factors is fatal, and the most common failure is not showing a substantial
likelihood of success on the merits. Am. Civil Liberties Union of Fla., Inc., 557
F.3d at 1198. For the reasons above, the plaintiffs cannot show a likelihood of
success on the merits. But they also cannot bear their burden on the other factors.
The plaintiffs cannot demonstrate any immediacy to their claims; they allege
no harm that cannot await the outcome of the case. On the other hand, an
injunction against democratically enacted legislation prohibits the State from
implementing the will of Floridas voters. See Maryland v. King, 133 S. Ct. 1, 2
(2012) (Roberts, C.J., in chambers); New Motor Vehicle Bd. of Calif. v. Orrin W.
Fox Co., 434 U.S. 1345, 1351, 98 S. Ct. 359, 363 (1977) (Rehnquist, J., in
chambers) ([A]ny time a State is enjoined by a Court from effectuating statutes
enacted by representatives of its people, it suffers a form of irreparable injury.);
cf. also Ne. Fla. Chapter of Assn of Gen. Contractors of Am. v. City of
36

Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) ([P]reliminary injunctions of
legislative enactmentsbecause they interfere with the democratic process and
lack the safeguards against abuse or error that come with a full trial on the merits
must be granted reluctantly . . . .). Neither the balance of equities nor the public
interest supports the district courts decision.
37

CONCLUSION
Through its democratic process, Florida has chosen to maintain the historical
definition of marriage. Because this choice did not violate the United States
Constitution, this Court should reverse the orders on appeal.
Respectfully submitted:
PAMELA JO BONDI
ATTORNEY GENERAL
/s/ James J. Goodman, Jr.
JAMES J. GOODMAN, JR. (FBN 71877)
JEFF GOODMAN, P.A.
946 Main Street
Phone: (850) 638-9722
Fax: (850) 638-9724
Counsel for Washington County Clerk of
Court

Solicitor General
OFFICE OF THE
ATTORNEY GENERAL
The Capitol PL01
Phone: (850) 414-3688
Fax: (850) 410-2672
Counsel for the Secretary of the Florida
Department of Health and for the Secretary
of the Florida Department of Management
Services
38

CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitations set forth in Federal
Rule of Appellate Procedure 32(a)(7)(B) because it contains 8,712 words,
excluding the parts of the brief exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).
This brief also complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
Appellate Procedure 32(a)(6) because it has been prepared in a proportionally
spaced typeface using Microsoft Word 2007 in 14-point Times New Roman.

ADAM S. TANENBAUM
Counsel for the Secretaries
39

I HEREBY CERTIFY that, on this 14th day of November, 2014, a true copy
of the foregoing brief was filed electronically with the Clerk of Court using the
Courts CM/ECF system, which will send by e-mail a notice of docketing activity
to the registered Attorney Filers listed on the attached electronic service list; and a
true copy in paper form was served by first-class mail on the following
unregistered counsel: Stephen C. Emmanuel, Ausley & Mcmullen, P.A., Post
Office Box 391, Tallahassee, Florida 32302-0391, Counsel for Amicus.

ADAM S. TANENBAUM
Florida Bar No. 117498
40

ELECTRONIC SERVICE LIST (SERVICE BY NDA)

WILLIAM J. SHEPPARD
sheplaw@att.net
ELIZABETH L. WHITE
sheplaw@att.net
BRYAN E. DEMAGGIO
sheplaw@att.net
SHEPPARD, WHITE &
KACHERGUS, P.A.
215 Washington Street
STEPHEN F. ROSENTHAL
srosenthal@podhurst.com
PODHURST ORSECK, P.A.
25 West Flagler Street, Suite 800
Miami, Florida 33130
Counsel for Plaintiffs-Appellees in Case
No. 14-14066
HORATIO G. MIHET
hmihet@liberty.edu
LIBERTY COUNSEL
1055 Maitland Center Commons Floor 2
Maitland, Florida 32751-7214
Counsel for Amicus
SAMUEL S. JACOBSON
sam@jacobsonwright.com
BLEDSOE, JACOBSON, SCHMIDT,
WRIGHT et al.
1301 Riverplace Boulevard, Suite 1818
In Case No. 14-14061
MARIA KAYANAN
mkayanan@aclufl.org
DANIEL B. TILLEY
dtilley@aclufl.org
ACLU FOUNDATION OF
FLORIDA, INC.
4500 Biscayne Blvd Ste 340
Miami, Florida 33137-3227
41

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Case 4:14-cv-00107-RH-CAS Document 103 Filed 12/29/14 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

Case No. 4:14-cv-107-RH/CAS

RICK SCOTT, et al.,

Case No. 4:14-cv-138-RH/CAS

RICK SCOTT, et al.,

Case 4:14-cv-00107-RH-CAS Document 103 Filed 12/29/14 Page 2 of 5

As previously acknowledged, the injunctions in paragraph 4 will have statewide

Case 4:14-cv-00107-RH-CAS Document 103 Filed 12/29/14 Page 3 of 5

[Signature on following page.]

Case 4:14-cv-00107-RH-CAS Document 103 Filed 12/29/14 Page 4 of 5

Case 4:14-cv-00107-RH-CAS Document 103 Filed 12/29/14 Page 5 of 5

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 1 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 2 of 71

Supreme Court of the United States

Application to Stay Preliminary Injunctions of the United States District

Counsel for Applicants

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 3 of 71

The Balance of Equities Weighs in Favor of a Stay. ....................................... 13

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 4 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 5 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 6 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 7 of 71

28 U.S.C. 1331 ............................................................................................................. 6

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 8 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 9 of 71

APPLICATION FOR STAY

To the Honorable Clarence Thomas, Associate Justice of the Supreme Court

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 10 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 11 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 12 of 71

constitutional question). In addition, there is now a clear circuit split on the

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 13 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 14 of 71

On November 6, 2014, that unbroken line of circuit decisions was broken

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 15 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 16 of 71

REASONS FOR GRANTING THE STAY

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 17 of 71

THERE IS A LIKELIHOOD THAT CERTIORARI WILL BE GRANTED

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 18 of 71

THERE IS A LIKELIHOOD THAT THE DISTRICT COURTS DECISION WILL BE

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 19 of 71

The district courts decision conflicts with this Courts decision in

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 20 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 21 of 71

THE BALANCE OF EQUITIES WEIGHS IN FAVOR OF A STAY.

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 22 of 71

The Health and DMS Secretaries acknowledge that the injunctions as to

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 23 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 24 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 25 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 26 of 71

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 27 of 71

District Court Order Denying the Motions to Dismiss, Granting

District Court Order Denying the Motions to Alter the Stay,

Eleventh Circuit Order Denying Further Stay, dated December

Case 4:14-cv-00107-RH-CAS Document 103-1 Filed 12/29/14 Page 28 of 71

IN THE UNITED STATES DISTRICT COURT FOR THE

JAMES DOMER BRENNER et al.,

CASE NO. 4:14cv107-RH/CAS

RICK SCOTT, etc., et al.,

CASE NO. 4:14cv138-RH/CAS

RICK SCOTT, etc., et al.,