Case 5:13-cv-00077-MFU-RSB Document 126 Filed 02/14/14 Page 1 of 3 Pageid#: 1519

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA Harrisonburg Division JOANNE HARRIS, et al., Plaintiffs, v. ROBERT F. MCDONNELL, et al., Defendants. ) ) ) ) ) ) ) ) )

Civil Action No. 5:13-cv-00077

NOTICE OF SUPPLEMENTAL AUTHORITY The Attorney General of Virginia, on behalf of Defendant Janet M. Rainey, State Registrar of Vital Records, in her official capacity, hereby notifies the Court of a significant legal development relevant to this Courts consideration of the pending motion for summary judgment (Doc. 44). Judge Arenda L. Wright Allen issued a decision on cross-motions for summary judgment in Bostic v. Rainey, No. 2:13-cv-00395 (E.D. Va. Feb. 14, 2014)a case that, like this one, involves the constitutionality of Virginias laws denying the right to marry to same-sex couples. For many of the same reasons submitted in the notice of change in legal position by the Attorney General (Doc. 110), Judge Wright Allen concluded that Virginias same-sex-marriage ban violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. A copy of the Memorandum Opinion and Order is attached. Among other things, Judge Wright Allen ruled that Baker v. Nelson, 409 U.S. 810 (1972), is not binding, see Ex. 1 at 16-18; that marriage is a fundamental right and that Virginias marriage ban is subject to strict scrutiny, see id. at 19-23; and that none of the reasons proffered to justify Virginias same-sex-marriage ban can withstand rational basis review, let alone strict

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scrutiny, see id. at 23-33. Accordingly, Judge Wright Allen granted the plaintiffs motion for summary judgment and denied the defendants cross-motion. Id. at 40. She enjoined the Commonwealth from enforcing its laws to the extent that they prohibit same-sex marriage, but stayed execution of her injunction pending the final disposition of any appeal to the United States Court of Appeals for the Fourth Circuit. Id. at 41. Respectfully submitted, JANET M. RAINEY, State Registrar of Vital Records, in her official capacity By: /s/ Stuart A. Raphael, VSB #30380 Solicitor General of Virginia 900 East Main Street Richmond, Virginia 23219 (804) 786-7240 Telephone (804) 371-0200 Facsimile sraphael@oag.state.va.us Counsel for Defendant Rainey

Mark R. Herring Attorney General of Virginia Cynthia E. Hudson Chief Deputy Attorney General H. Lane Kneedler, VSB #7722 Senior Counsel Rhodes B. Ritenour, VSB #71406 Deputy Attorney General E-mail: rritenour@oag.state.va.us Trevor S. Cox, VSB #78396 Deputy Solicitor General E-mail: tcox@oag.state.va.us Allyson K. Tysinger, VSB #41982 Senior Assistant Attorney General E-mail: atysinger@oag.state.va.us 2

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Catherine Crooks Hill, VSB #43505 Senior Assistant Attorney General E-mail: cchill@oag.state.va.us CERTIFICATE OF SERVICE I hereby certify that on February 14, 2014, I will electronically file the foregoing with the Clerk of the Court using the CM/ECF system, which will send a copy to counsel of record. /s/ Stuart A. Raphael