Tanco, et al. v. Haslam, et al.

Filing 78

MEMORANDUM & ORDER: Therefore, for the reasons stated herein, the Motion to Stay is hereby DENIED. It is so ORDERED. Signed by District Judge Aleta A. Trauger on 3/20/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
VALERIA TANCO and SOPHIE JESTY, et al., )
)
Plaintiffs,
)
)
v.
)
)
WILLIAM EDWARD “BILL” HASLAM, et al., )
)
Defendants.
)

Case No. 3:13-cv-01159
Judge Aleta A. Trauger

MEMORANDUM & ORDER
On March 14, 2014, the court issued a preliminary injunction barring the defendants and
those under their supervision from enforcing Tenn. Code Ann. § 36-3-113 and Art. XI., § 18 of
the Tennessee Constitution (collectively, the “Anti-Recognition Laws”) against the six named
plaintiffs in this action. (See Docket Nos. 67 (Memorandum), 68 (Order), and 69 (Preliminary
Injunction).) On March 18, 2014, the defendants filed (1) a Notice of Appeal to the Sixth Circuit
(Docket No. 74) and (2) a Motion to Stay the Preliminary Injunction pursuant to Fed. R. Civ. P.
62(c) and Fed. R. App. P. 8(a) (Docket Nos. 72 (Motion) and 73 (Memorandum of Law)), to
which the plaintiffs have filed a Response in opposition (Docket No. 77). In their Motion to
Stay, the defendants ask the court to stay the Preliminary Injunction pending resolution of the
merits of their appeal or, in the alternative, to stay the Preliminary Injunction for 21 days to allow
the defendants to pursue a similar request for relief before the Sixth Circuit.1

1

Under Fed. R. App. 8(a)(1), “[a] party must ordinarily move first in the district court for
. . . (C) an order suspending, modifying, restoring or granting an injunction while an appeal is
pending.” Under Fed. R. Civ. P. 62(c), “[w]hile an appeal is pending from an interlocutory order
. . . that grants . . . an injunction, the court may suspend, modify, restore, or grant an injunction
1

STANDARD FOR MOTION TO STAY PENDING APPEAL
When considering a stay pending appeal, a court must consider “the traditional factors
governing injunctive relief,” including “(1) whether the defendant has a strong or substantial
likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if the
district court proceedings are not stayed; (3) whether staying the district court proceedings will
substantially injure other interested parties; and (4) where the public interest lies.” Baker v.
Adams Cnty./Ohio Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir. 2002). Furthermore:
These factors are to be balanced. The strength of the likelihood of success on the
merits that needs to be demonstrated is inversely proportional to the amount of
irreparable harm that will be suffered if a stay does not issue. However, in order
to justify a stay of the district court’s ruling, the defendant must demonstrate at
least serious questions going to the merits and irreparable harm that decidedly
outweighs the harm that will be inflicted on others if a stay is granted.
Id.
In evaluating the harm that will occur depending upon whether or not the stay is granted,
we generally look to three factors: (1) the substantiality of the injury alleged; (2) the likelihood of
its occurrence; and (3) the adequacy of the proof provided. Mich. Coalition of Radioactive
Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991). The Sixth Circuit has
provided additional guidance for evaluating the degree of injury to a defendant:
In evaluating the degree of injury, it is important to remember that:
[t]he key word in this consideration is irreparable. Mere
injuries, however substantial, in terms of money, time and
energy necessarily expended in the absence of a stay, are

on terms for bond or other terms that secure the opposing party’s rights.” In substance, absent a
showing that moving first in the district court would be impracticable (see Fed. R. App. P.
8(a)(2)(A)(i)), defendants may not seek a stay from the appellate court unless and until they have
moved for and been denied such relief by the district court.
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not enough. The possibility that adequate compensatory or
other corrective relief will be available at a later date, in the
ordinary course of litigation, weighs heavily against a claim
of irreparable harm. Sampson v. Murray, 415 U.S. 61, 90 []
(1974)).
In addition, the harm alleged must be both certain and immediate, rather
than speculative or theoretical. In order to substantiate a claim that
irreparable injury is likely to occur, a movant must provide some evidence
that the harm has occurred in the past and is likely to occur again.
Of course, in order for a reviewing court to adequately consider these four
factors, the movant must address each factor, regardless of its relative
strength, providing specific facts and affidavits supporting assertions that
these factors exist.
Griepentrog, 945 F.2d at 154 (certain citations omitted, emphasis in original).2
ANALYSIS
I.

Likelihood of Success on the Merits
The defendants argue that there is a “serious question” concerning the merits of the

court’s finding that the plaintiffs are likely to succeed on the merits, contending that the court
erroneously failed to place the burden on the plaintiffs to show that the Anti-Recognition Laws
lack a rational basis. However, as the court previously explained, (1) the post-Windsor courts
have uniformly found that bans on the consummation and/or recognition of same-sex marriages
are unconstitutional under rational basis review, (2) the court found the reasoning in those cases,

2

See also Grass Lake All Season Resort v. United States, 2005 WL 3447869, at *3 (E.D.
Mich. Dec. 15, 2005) (finding no irreparable injury to plaintiff from enforcement of district court
judgment, where “there is no evidence provided” to support the plaintiff’s contention that house
would sell for an amount below the full and fair market value of the property); S&M Brands, Inc.
v. Summers, 2006 WL 1804606, at *3 (M.D. Tenn. June 28, 2006) (finding no irreparable harm,
where, among other deficiencies, defendant failed to provide evidentiary support for its
allegations of irreparable harm).

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particularly Bourke v. Beshear, to be persuasive,3 and (3) the court found no basis to conclude
that Tennessee’s Anti-Recognition Laws would merit different treatment under the United States
Constitution than the laws at issue in these other cases.
Moreover, in support of their Motion for Preliminary Injunction, the plaintiffs specifically
argued that the following justifications did not constitute a “rational basis” for the AntiRecognition Laws: “history and tradition,” moral disapproval of same-sex marriage, the state’s
interest in fostering procreative activity, and the belief that married opposite-sex couples make
better parents than same-sex couples. (See Docket No. 30 at p. 23.) None of these asserted
grounds for an anti-recognition law or same-sex marriage ban has survived constitutional scrutiny
in any federal post-Windsor decision. In its opinion granting the Preliminary Injunction, the
court merely pointed out that the defendants, in referencing only the state’s interest in procreation
(which the plaintiffs specifically argued was not a rational basis for the Anti-Recognition Laws),
had provided no new “rational basis” for discriminating against same-sex marriage that had not
already been thoroughly and consistently discredited.
Of course, post-Windsor, no circuit court (let alone the Supreme Court) has yet issued an
opinion addressing state laws that ban same-sex marriage or refuse to recognize legal same-sex
marriages consummated in other states. Nevertheless, given the unanimity of opinion as to this
point in district courts across the country, the court finds no “serious question” as to whether this
court conducted an appropriate constitutional analysis in reaching essentially the same

3

Following the intervention of additional plaintiffs after the court’s judgment concerning
Kentucky’s anti-recognition laws, the case previously captioned as “Bourke, et al. v. Beshear, et
al.” was modified to “Love, et al. v. Beshear, et al..” (See docket for Love et al. v. Beshear, et
al., 3:13-CV-750-H (W.D. Ky.), Docket No. 57.) For purposes of simplicity, the court will
hereinafter refer to that case as “Beshear.”
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conclusion.
B.

Irreparable Harm

As to the second factor in the court’s Rule 62 analysis, the defendants argue that the
plaintiffs will not suffer irreparable harm or that, to the extent that they might suffer such harm,
the harm is self-inflicted because of the plaintiffs’ failure to take other measures to secure the
rights at issue. The defendants also argue that the State of Tennessee suffers a form of irreparable
harm from being forced not to effectuate a statute enacted by representatives of Tennessee’s
citizens. The defendants have not asserted any other form of alleged irreparable harm.
The appropriate focus of the court’s inquiry is on whether the defendants will suffer
irreparable harm from enforcement of the Preliminary Injunction. The court’s injunction merely
precludes Tennessee (at least temporarily) from enforcing its Anti-Recognition Laws against just
three couples in Tennessee. Of course, if this court’s conclusion that the plaintiffs will likely
succeed in their challenge to the Anti-Recognition Laws turns out to be wrong, the State may
have suffered some small affront to its sovereignty by being forced to recognize three particular
same-sex marriages for a short period of time. That harm, even if arguably “irreparable,” would
not be substantial, and that harm is unlikely to occur in the first place, because the plaintiffs are
likely to succeed. By contrast, as explained in the court’s previous opinion, the harms to the
plaintiffs from continued enforcement of the Anti-Recognition Laws would be substantial and
irreparable. The court finds no reason to revisit that determination.
The defendants point out that, in other cases involving same-sex marriage, courts have

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stayed the issuance of preliminary or permanent injunctions having statewide effect.4 However,
the defendants are comparing apples and oranges. Those cases all involved bans having
statewide effect, which inherently created the possibility that implementation of the injunctions
would motivate numerous third parties to seek and receive marriage licenses and/or to seek
recognition of their out-of-state marriages. Indeed, in the first of these cases, Kitchen v. Herbert,
the district court declared that Utah’s same-sex marriage law was unconstitutional, enjoined the
state from enforcing the ban immediately, and refused to grant a stay of the court’s injunction.5
Apparently, the County Clerk in Salt Lake City began issuing marriage licenses that afternoon.6
The Tenth Circuit similarly refused to grant a stay of the district court’s order, at which point the
defendants petitioned the Supreme Court for a stay of the district court’s order. According to
media reports, over a thousand same-sex marriage licenses were issued in Utah between the date
of the district court’s order and the Supreme Court’s summary ruling, on January 7, 2014, that the

4

See Herbert v. Kitchen, No. 13A687, 571 U.S. – , 2014 WL 30367 (Jan. 6, 2014)
(staying enforcement of district court’s permanent injunction against Utah’s same-sex marriage
ban in Kitchen v. Herbert, No. 2:13-cv-217 (D. Utah)); De Leon v. Perry, No. SA-13-CA-00982OLG, – F. Supp. 2d – , 2014 WL 715741, at *27-28 (W.D. Tex. Feb. 26, 2014) (staying
preliminary injunction against enforcement of Texas same-sex marriage ban and anti-recognition
laws); Bostic v. Rainey, Civil No. 2:13-cv-395, – F. Supp. 2d –, 2014 WL 561978, at *23 (E.D.
Va. Feb. 13, 2014) (staying injunction against Virginia same-sex marriage ban and antirecognition laws); Bishop v. U.S. ex rel. Holder, No. 04-cv-848-TCK-TLW, – F. Supp. 2d –,
2014 WL 116013, at *33 (N.D. Okla. Jan. 14, 2014) (staying injunction against enforcement of
Oklahoma same-sex marriage ban); see also Beshear Docket No. 71 (staying implementation of
court order striking down Kentucky anti-recognition laws).
5

See Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013); Kitchen v. Herbert, 2013
WL 6834634 (D. Utah Dec. 23, 2013).
6

See Tenth Circuit docket in Kitchen v. Herbert, No. 13-4178 (10th Cir.), Emergency
Motion for Temporary Stay, filed Dec. 23, 2013, at p. 5 (“As widely reported by the press, after
the district court issued its decision the Salt Lake County Clerk immediately began issuing
marriage licenses to same-sex couples and same-sex couples were married Friday afternoon.”)
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district court’s order would be stayed pending appeal.7
Subsequently, in Bostic, De Leon, Bishop, and Beshear, each court issued an injunction
that, like the district court’s order in Kitchen, would have had statewide effect. In light of the
Supreme Court’s stay in Kitchen, which essentially halted the “rush to marry” by (apparently)
thousands of same-sex couples in Utah, the courts in Bostic, De Leon, Bishop, and Beshear
stayed orders in their cases as well.8
Here, unlike in Kitchen, Bostic, De Leon, Bishop, and Beshear, the court’s order does not
open the floodgates for same-sex couples to marry in Tennessee, nor does it require Tennessee to
recognize all legal same-sex marriages performed outside of Tennessee. Instead, the Preliminary
Injunction applies only to the three same-sex couples at issue in this case. There is no immediate
risk of administrative or legal chaos from implementation of the court’s narrow injunction; nor,
for that matter, does the government even contend that such risk inheres in the implementation of
the court’s narrow injunction.
C.

Injury to Other Interested Parties

The defendants have not identified any potential injury to “other interested parties,” let
7

See www.nytimes.com/2014/01/09/us/utah-governors-office-says-state-wont-recognizesame-sex-marriages.html?_r=0 (Jan 8, 2014) (stating that “about 1,300 same-sex couples”
obtained marriage licenses before the Supreme Court’s stay); www.usatoday.com/story/news/
nation/2014/01/08/utah-same-sex-marriages-not-recognized/4372657/ (Jan. 8, 2014) (stating that
Utah would refuse to recognize the “1000-plus same-sex marriages performed in the state since
Dec. 20”)
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For example, as stated in a recent Memorandum and Order in Beshear, which struck
down Kentucky’s anti-recognition laws as unconstitutional, the government argued that
enforcement of the court’s judgment could result in “chaos,” including “the potential granting
and then taking away of same-sex marriage recognition to couples,” as well as the potential
impacts on “businesses and services where marital status is relevant, including health insurance
companies, creditors, [and] estate planners.” Judge Heyburn stated that these considerations
presented a “legitimate concern.” (See Beshear, Docket No. 71.)

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alone “substantial injury,” that would result from continued enforcement of the Preliminary
Injunction. See Baker, 310 F.3d at 928. By contrast, as this court previously found, the injury to
the plaintiffs from continued enforcement of the Anti-Recognition Laws against them would be
substantial and irreparable for multiple reasons. Furthermore, although it is conceivable that Dr.
Tanco and Dr. Jesty possess or could secure certain rights relative to the child they are expecting
tomorrow, they are entitled to the full panoply of rights associated with marriage and the security
and peace of mind that those rights will not be abrogated or denied (at least for the time being)
relative to their family or their expected child. Moreover, they should not be required to jump
through hoops to obtain some limited measure of security. Mr. Espejo and Mr. Mansell would
suffer similar injuries relative to their children. And all of the plaintiffs will suffer the various
other forms of irreparable harm described in the court’s previous opinion.
D.

The Public Interest

The defendants have argued that preservation of the status quo best serves the public
interest. This argument, in and of itself, is insufficient. As the plaintiffs point out, any court that
enjoins enforcement of an unconstitutional state law necessarily disturbs the status quo. Indeed,
where a district court had found a Michigan law unconstitutional and enjoined its enforcement,
the Sixth Circuit denied a motion by the defendants for a stay pending appeal. See U.S. Student
Assoc. Found. v. Land, 546 F.3d 373 (6th Cir. 2008); see also United Food & Commercial
Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 348 (6th Cir. 1998)
(criticizing reliance on the “status quo” and upholding injunction requiring defendant to accept
plaintiff’s advertisement, where plaintiff was likely to prevail on First Amendment claim
premised on defendant’s previous refusal to accept the ad). Of course, disturbing the status quo

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relative to an entire state could implicate sufficiently serious public interest concerns, such as the
risk that Judge Heyburn perceived in Beshear from implementing an injunction with “dramatic
effects” that could sow “undue confusion” and create “confusing changes” regarding the rights of
many people. (Beshear Docket No. 71.) However, for the reasons previously described, those
concerns are not present here. Moreover, as the court explained in its previous opinion, “it is
always in the public interest to prevent the violation of a party’s constitutional rights.” G&V
Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).
E.

Balancing of the Factors

The court finds that all four factors weigh against a stay and in favor of continuing
enforcement of the Preliminary Injunction. Even if the court were to accept that there is arguably
a “serious question” about the merits of its constitutional analysis, the defendants have not even
approached their burden to show “irreparable harm that decidedly outweighs the harm that will
be inflicted on others if a stay is granted.” Baker, 310 F.3d at 928.
Therefore, for the reasons stated herein, the Motion to Stay is hereby DENIED.
It is so ORDERED.
Enter this 20th day of March 2014.
_____________________________
ALETA A. TRAUGER
United States District Judge

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