UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CIVIL ACTION FILE NO. 1:12-CV-589-WO-JEP
CIVIL ACTION FILE NO. 1:14-CV-299-WO-JEP

MARCIE FISHER-BORNE, et al.;

Plaintiffs,

vs.

JOHN W. SMITH, et al.;

Defendants.
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and
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ELLEN W. GERBER, et al.,

Plaintiffs,

v.

ROY COOPER, in his official capacity as the
Attorney General of North Carolina, et al.,
Defendants.
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STATE DEFENDANTS BRIEF
ON FUTURE PROCEEDINGS

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NOW COME Defendants JOHN W. SMITH, in his official capacity as the Director of North
Carolina Administrative Office of the Courts; THE HONORABLE DAVID L. CHURCHILL, in his
official capacity as Clerk of the Superior Court for Guilford County; THE HONORABLE ARCHIE L.
SMITH III, in his official capacity as Clerk of the Superior Court for Durham County; THE
HONORABLE AL JEAN BOGLE, in her official capacity as Clerk of the Superior Court for Catawba
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County; ROY A. COOPER, in his official capacity as the North Carolina Attorney General
1
,
(collectively referred to as the State Defendants), and, pursuant to the Honorable Judge Osteen,
Jr.s Orders dated July 30, 2014, [FB DE 102, Gerber DE 55],
2
file this brief outlining their position
regarding the future proceedings herein.
I. SUMMARY AND PRECEDENTIAL VALUE OF OPINION IN BOSTIC V. SCHAEFER, NO.
14-1167 (4TH CIR. JULY 28, 2014).

A. Summary of the Bostic Opinion.

On July 28, 2014, the United States Court of Appeals for the Fourth Circuit issued the
opinion in Bostic v. Schaefer, No. 14-1167 (4th Cir. July 28, 2014) holding that Virginias marriage
laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the
extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing
same-sex couples lawful out-of-state marriages. (Slip Op p 62). The Fourth Circuits opinion
directly impacts arguments that have been previously advanced by the State Defendants.

1
Pending before the court is the parties' proposed consent order that reflects the dismissal of the Attorney
General as a named party-defendant, and a contemporaneous agreement to amend the case caption to
include the Attorney General as an Intervenor on behalf of the State of North Carolina.
2
Hereinafter, docket entries in Fisher-Borne matter are referred to as FB DE, and docket entries in
Gerber matter are referred to as Gerber DE.
Initially, the majority in Bostic determined that the Supreme Courts dismissal of a petition
for certiorari review for want of a substantial federal question in Baker v. Nelson, 409 U.S. 810
(1972), did not control the outcome in Bostic. While the majority agreed that Baker and the case
at hand address the same precise issues (Slip Op p 34), it opined that the Supreme Courts
apparent abandonment of Baker and the significant doctrinal developments that occurred after the
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Court issued its summary dismissal in that case, required that the Fourteenth Amendment
arguments propounded by same-sex marriage advocates may proceed and be reviewed on the
merits. (Slip Op p 38).
Moreover, Bostic found that the fundamental right to marry encompasses the right to
same-sex marriage, and applied the strict scrutiny standard to Virginias laws preventing
same-sex couples from marrying and nullifying the legal import of their out-of-state marriages. (Slip
Op p 41, 44-45). The Court next rejected the five interests asserted by the State for their failure to
be narrowly drawn, or because they were insufficiently compelling to survive the strict scrutiny
analysis. (Slip Op pp 45-62).
3
Consequently, the Fourth Circuit held that Virginias marriage laws
violate the Fourteenth Amendment to the U.S. Constitution.
Judge Niemeyer dissented, and concluded that the fundamental right to marry does not
extend to the newly proposed relationship of a same-sex marriage. (Slip Op pp 67, 74-84)
(Niemeyer, J., dissenting). Judge Niemeyer applied a rational basis review to Virginias marriage
laws, reasoning that the laws were rationally related to legitimate governmental goals. (Slip Op pp
84-91) (Niemeyer, J., dissenting). The dissent further concluded that because Virginias laws do
not discriminate against suspect or quasi-suspect classes, they satisfy the requirements of rational
basis review. (Slip Op pp 91-97) (Niemeyer, J., dissenting).


3
The following State interests were specifically rejected in Bostic: (1) Virginias federalism-based interest
in maintaining control over the definition of marriage within its borders, (2) the history and tradition of
opposite-sex marriage, (3) protecting the institution of marriage, (4) encouraging responsible procreation,
and (5) promoting the optimal childrearing environment. (Slip Op pp 45-46) (fn. omitted).
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B. Comparison of Virginias Marriage Laws to North Carolinas Laws Challenged
in The Instant Action.

The North Carolinas marriage laws that are being challenged here are broadly divided into
two substantive subject areas: (1) marriage laws, and (2) second-parent adoption laws. [See FB DE
40, Gerber DE 1]. While the Fourth Circuits decision in Bostic dictates the parameters of this
Courts prospective analysis of North Carolinas marriage laws within the framework of the
Fourteenth Amendment, the opinion does not directly address the issues implicated in Plaintiffs
challenges of the States second-parent adoption laws.
With respect to the first category, the legal issue presented in Bostic mirrors the issue
presented in the instant cases, i.e., whether state laws which define marriage as a union of a man
and a woman, and prohibit same-sex marriage, are unconstitutional under the Due Process and
Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. Substantively,
Virginias marriage laws found to be unconstitutional by Bostic, [Slip Op p 21], and North Carolinas
marriage laws herein, [DE 40], are indistinguishable:
North Carolinas Marriage Laws Virginias Marriage Laws
N.C. Const. Art. XIV, 6 provides that
[m]arriage between one man and one woman
is the only domestic legal union that shall be
valid or recognized in this State.
Va. Const. Art. I, 15-A provides that only a
union between one man and one woman may
be a marriage valid in or recognized by this
Commonwealth and its political subdivisions.
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N.C. Gen. Stat. 51-1.2 invalidates marriages
between individuals of the same gender
(including common law and contracted
varieties) in North Carolina or entered into
outside the state.
V.C. 20-45.2 prohibits marriage between
persons of the same sex and voids same sex
marriage entered into in another state.

N.C. Gen. Stat. 51-1 defines valid marriage
as a union created by lawful consent of a male
and female person and requires a minister,
magistrate or other mode of solemnization.
V.C. 20-45.3 prohibits civil unions,
partnership contracts and other arrangements
between persons of same sex that purport to
bestow privileges or obligations of marriage.

North Carolina and Virginia both define marriage as a union between one man and one
woman, prohibit state recognition of same-sex marriages and invalidate same-sex marriages
performed outside the respective states. Given the similarity between these challenged laws, the
State Defendants herein have consistently represented to this Court that the Fourth Circuits
holding in Bostic would likely control the analysis of North Carolinas marriage laws. Indeed, with
Bostic, the Fourth Circuit has established a clear analytical framework for the legal analysis of
constitutional challenges to laws prohibiting same-sex marriage.
In contrast, the adoption provisions of North Carolina General Statutes challenged herein,
N.C. Gen. Stat. 48-1-100 et seq., including 48-1-106, 48-3-202, 48-4-100-103, (hereinafter
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referred to as second-parent adoption laws or adoption laws), are not directly addressed by the
opinion in Bostic, which was exclusively focused upon the constitutionality of Virginias marriage
laws. While the Bostic opinion may render moot some of Plaintiffs second-parent adoption claims,
the opinion establishes no precedent as to the constitutionality of North Carolinas adoption laws.
C. Precedential Value of Bostic.

The Court of Appeals for the Fourth Circuit entered judgment in Bostic on July 28, 2014,
with a mandate originally scheduled to issue on August 18, 2014. Fed. R. App. P. 41(b). One of
the defendants in Bostic, a county clerk of court, filed a request for a stay of mandate pending the
filing of petition for writ of certiorari, with a continuance of the stay to follow official notification that
the petition has been filed, pursuant to Fed. R. App. P. 41(d)(2)(B). [Bostic, No. 14-1167, DE 238].
The Fourth Circuit denied the motion to stay mandate by its Order dated August 13, 2014. [Bostic,
No. 14-1167, DE 247]. Pursuant to Fed. R. App. P. 41(b), the Courts mandate issues 7 days after
entry of an order denying motion for stay of mandate. Additionally, on August 8, 2014, the State
Registrar of Vital Records for the Commonwealth of Virginia filed a petition for writ of certiorari in
the Supreme Court of the United States, and so notified the circuit clerk in writing, presenting the
following question for review: Whether Virginia violates the Due Process and Equal Protection
Clauses by denying the right of marriage to same-sex couples and by refusing to recognize
same-sex marriages lawfully performed outside of Virginia. [Bostic, No. 14-1167, DE 244-1,
244-2]. It is anticipated that petitioners and/or other parties in Bostic will seek a stay from the
Supreme Court of the United States. Accordingly, the mandate in Bostic has not yet issued.
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District courts are bound by direct and controlling opinions of the Fourth Circuit. Alexander
v. City of Greensboro, No 1:09-CV-934, 2011 U.S. LEXIS 679 at 13-14 n. 5 (M.D.N.C. Jan. 4,
2011). However, it is not entirely clear whether a Fourth Circuit opinion, where mandate has not
issued, constitutes controlling precedent. Ordinarily, issuance of the mandate transfers jurisdiction
from the appellate panel to the lower court, to allow it to effectuate the appellate judgment. See
Ostrer v. United States, 584 F.2d 594, 598 (2
nd
Cir. 1978); United States v. Russo, 550 F. Supp.
1315, 1318 (D.N.J. 1982), affd without op., 722 F.2d 736 (3
rd
Cir. 1983); First Gibraltar Bank, FSB
v. Morales, 42 F. 3d 895, 897 (5
th
Cir. 1995). Until the mandate issues, however, the appellate
courts judgment is not final, and that court retains jurisdiction to decide rehearing petitions or
otherwise amend its opinion or judgment. Jennifer L. Swize, The Appellate Mandate: What It Is
and Why It Matters, Appellate Practice, ABA Section of Litigation (Winter 2012, Vol 31 No 2); see
also, Alphin v. Henson, 552 F.2d 1033, 1035 (4
th
Cir. 1977); First Gibraltar Bank, 42 F.3rd at
897-898; Bryant v. Ford Motor Co., 886 F2d 1526, 1529-1531 (9
th
Cir. 1989).
Several circuits have addressed the issue of the precedential value of a published case
without a mandate. In fact, the Eleventh Circuit features a local rule and internal operating
procedure entitled Effect of Mandate on Precedential Value of Opinion, which provides that
[u]nder the law of this circuit, published opinions are binding precedent. The issuance or
non-issuance of the mandate does not affect this result[;] 11th Cir. L.R. 36, I.O.P. 2; Martin v.
Singletary, 965 F.2d 944, 945 n.1 (11th Cir., 1992) (noting that [t]he stay of the mandate ... merely
delays the return of jurisdiction to the district court, ... [and] [t]he stay in no way affects the duty of
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this panel and the courts in this circuit to apply now the precedent established.) The Ninth Circuit
has similarly concluded that a circuit decision is binding on lower courts even before the mandate
issues. Gonzalez v. Arizona, 677 F.3d 383, 389 n. 4 (9
th
Cir. 2012); Nichols v. Harris, __F.Supp.2d
__, __, 2014 U.S. Dist. LEXIS 60847 (C.D. Cal. May 1, 2014).
State Defendants are unaware of any rule or decision of the Fourth Circuit that directly
describes the precedential value of published appellate opinions prior to the issuance of a mandate.
The Fourth Circuit has held that the mandate of a higher court is controlling as to matters within its
compass. United States v. Bell, 5 F3d 64, 66 (4
th
Cir. 1993) (quoting Sprague v. Ticonic Natl
Bank, 307 U.S. 161, 168 (1939).) Discussing the significance of the mandate rule, Fourth Circuit
judges have also emphasized that the rule promotes the goals of (1) finality of the judgment, and
(2) the principle that in our judicial hierarchy, the decisions of the circuit courts of appeals bind the
district courts just as decisions of the Supreme Court bind the circuit courts[.] Doe v. Chao, 511
F.3d 461, 465 (4th Cir. 2007).
It appears that in this Circuit, courts have recognized that the formality of the issuance of
mandate is especially significant for the lower tribunal that had original jurisdiction of the case in
question. While the rationale advanced by the Ninth and Eleventh Circuits appears sound, it is not
clear whether the Fourth Circuit will agree with those Circuits approach requiring the lower courts
to adhere to published opinions of the appellate court prior to issuance of a mandate. It is,
however, clear that Bostic will be binding upon this Court as it undertakes its analysis of North
Carolinas marriage laws at least upon the issuance of a mandate in that case.
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II. STATE DEFENDANTS POSITION ON FUTURE PROCEEDINGS IN THIS MATTER.

By virtue of its July 30, 2014 Orders, this Court determined that:

the appellants in Bostic have a right to petition for a panel rehearing
or a rehearing en banc and, ultimately, to seek review before the
Supreme Court. However, this court, after reviewing the parties
pending motions, briefing, and affidavits, and all the circumstances
of this action, concludes that the action should proceed... .

[FB DE 102 p 2, Gerber DE 55 p 2 (emphasis added)]. The Court further ordered the parties to
submit statements on their respective positions as to the course of proceedings herein, in view of
Bostic. [FB DE 102, Gerber DE 55]. As such, the State Defendants advise the Court that they will
seek this Courts leave to file answers and appropriate motions that address the remaining
substantive issues in these cases. The State Defendants will also respond to future motions or
other pleadings filed by Plaintiffs as required by the Fed. R. Civ. P. and local rules or orders of this
Court.
Respectfully submitted, this the 13th day of August, 2014.

ROY COOPER
North Carolina Attorney General


/s/ Amar Majmundar
Amar Majmundar
Special Deputy Attorney General
North Carolina State Bar No. 24668
N.C. Department of Justice
Post Office Box 629
Raleigh, NC 27602
Telephone: (919) 716-6821
Facsimile: (919) 716-6759
Email: amajmundar@ncdoj.gov
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/s/ Olga E. Vysotskaya de Brito
Olga E. Vysotskaya de Brito
Special Deputy Attorney General
North Carolina State Bar No. 31846
N. C. Department of Justice
Post Office Box 629
Raleigh, NC 27602
Telephone: (919) 716-0185
Facsimile: (919) 716-6759
Email: ovysotskaya@ncdoj.gov

/s/ Charles Whitehead
Charles G. Whitehead
Special Deputy Attorney General
North Carolina State Bar No. 39222
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602
Telephone: (919) 716-6840
Facsimile: (919) 716-6758
Email: cwhitehead@ncdoj.gov
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CERTIFICATE OF SERVICE
I hereby certify that on the 13th day of August, 2014, I electronically filed the foregoing
STATE DEFENDANTS BRIEF with the Clerk of the Court using the CM/ECF system which will
send notification of such filing to all counsel of record.

/s/ Olga E. Vysotskaya de Brito
Olga E. Vysotskaya de Brito
Special Deputy Attorney General


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