     Case: 14-60837   Document: 00512864387     Page: 1   Date Filed: 12/10/2014




                REVISED, December 10, 2014
        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                    Fifth Circuit

                                                                        FILED
                                                                    December 4, 2014
                                 No. 14-60837
                                                                      Lyle W. Cayce
                                                                           Clerk
CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA
SANDERS; JOCELYN PRITCHETT; CARLA WEBB,

             Plaintiffs - Appellees

v.

PHIL BRYANT, in his Official Capacity as Governor of the State of
Mississippi; JIM HOOD, in his Official Capacity as Mississippi Attorney
General,

             Defendants - Appellants




                Appeal from the United States District Court
                  for the Southern District of Mississippi



Before PRADO, OWEN, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      By statute and constitutional provision, the State of Mississippi
(“Mississippi” or “the State”) prohibits same-sex couples from marrying and
does not recognize those marriages entered into by same-sex couples which
have been validly performed and are recognized elsewhere (the “marriage
bans” or the “bans”). See Miss. Const. art XIV, § 263A; Miss. Code. Ann. § 93-
1-1(2). In October of 2014, two same sex couples, Rebecca Bickett and Andrea
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                                  No. 14-60837
Sanders and Jocelyn Pritchett and Carla Webb, and the Campaign for
Southern Equality, a non-profit advocacy group (“Plaintiffs”), initiated a
lawsuit challenging Mississippi’s marriage bans as violating the Equal
Protection and Due Process Clauses of the Fourteenth Amendment.                In
connection with their suit, Plaintiffs filed a motion for a preliminary injunction
seeking to enjoin Mississippi from enforcing the bans.
      On November 25, 2014, after conducting a hearing on Plaintiffs’ motion,
the district court entered an order preliminarily enjoining Mississippi from
enforcing the marriage bans. In addition, in response to a motion filed by the
State, the district court stayed the effect of its own order for 14 days to permit
the State to seek a further stay of the injunction pending an appeal to this
court. Before this court now is Mississippi’s emergency motion to stay the
effect of the district court’s injunction pending appeal.      For the following
reasons, Mississippi’s motion is GRANTED.
      “A stay is an intrusion into the ordinary processes of administration and
judicial review” and a party is not entitled to a stay as a matter of right. Nken
v. Holder, 556 U.S. 418, 427 (2009) (internal quotations omitted).
Nevertheless, the authority to “hold an order in abeyance pending review
allows an appellate court to act responsibly” when faced with serious legal
questions that merit careful scrutiny and judicious review. Id. An appellate
court’s determination regarding the issuance of a stay requires an individual
assessment of the case before it and an analysis of the circumstances attendant
to the particular stay request. Id. at 433-34; Hilton v. Braunskill, 481 U.S.
770, 777 (1987).
       In determining whether to grant a stay pending appeal, we consider
four factors: “(1) whether the stay applicant has made a strong showing that
he [or she] 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
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                                   No. 14-60837
substantially injure the other parties interested in the proceeding; and (4)
where the public interest lies.” Veasey v. Perry, 769 F.3d 890, 892 (5th Cir.
2014); accord Nat’l Treasury Emps. Union v. Von Raab, 808 F.2d 1057, 1059
(5th Cir. 1987). In evaluating these factors, this court has refused to apply
them “in a rigid . . . [or] mechanical fashion.” United States v. Baylor Univ.
Med. Ctr., 711 F.2d 38, 39 (5th Cir. 1983). Moreover, we have recognized that
a “movant ‘need only present a substantial case on the merits when a serious
legal question is involved and show that the balance of equities weighs heavily
in favor of granting the stay.’” Id. (quoting Ruiz v. Estelle, 650 F.2d 555, 565
(5th Cir. 1981); see also Von Raab, 808 F.2d at 1059. The instant motion
presents just such a case.
      We have little difficulty concluding that the legal questions presented by
this case are serious, both to the litigants involved and the public at large, and
that a substantial question is presented for this court to resolve. In reaching
the merits of this appeal, this court will be confronted with a potential conflict
between the state’s historic “power and authority over marriage” and “the
constitutional rights of persons” to make decisions in the most intimate and
personal aspects of their lives. See United States v. Windsor, 133 S.Ct. 2675,
2691 (2013); Lawrence v. Texas, 539 U.S. 558, 573-74 (2003). Further, while
the majority of circuits to confront this issue have determined that marriage
bans similar to the ones at issue here do not comport with the values of our
constitution, that conclusion has not been universally shared. Compare Latta
v. Otter, ___ F.3d ___, 2014 WL 4977682, at *11 (9th Cir. Oct. 7, 2014); Baskin
v. Bogan, 766 F.3d 648, 672 (7th Cir. 2014); Bostic v. Schaefer, 760 F.3d 352,
384 (4th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193, 1229-30 (10th Cir. 2014)
with DeBoer v. Snyder, ___F.3d ___, 2014 WL 5748990, at *26-27 (6th Cir. Nov.
6, 2014). It is not our task today to resolve the merits of this conflict in deciding
the instant motion, however, we are convinced by the opinions of our sister
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                                   No. 14-60837
circuits that “a detailed and in depth examination of this serious legal issue”
is warranted before a disruption of a long standing status quo. See Baylor
Univ. Med. Ctr., 711 F.2d at 40.
      Further, 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 State’s motion. As the district court recognized, “a race to the
courthouse—with same-sex couples rushing to the circuit clerk’s office, and the
State rushing to the Fifth Circuit—does not serve anyone’s interest.” 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. See Evans
v. Utah, ___ F. Supp. 2d ___, 2014 WL 2048343, at *1-4 (D. Utah May 19, 2014)
(discussing the confusion resulting from Utah’s marriage ban being enjoined
and then subsequently reinstated). We note that these same concerns may
have animated the Supreme Court when it granted a similar stay application
while the issue of Utah’s marriage ban was pending before the Tenth Circuit.
See Herbert v. Kitchen, 134 S.Ct. 893 (2014) (Sotomayor, J.).
      Finally, while we recognize that Plaintiffs are potentially harmed by a
continued violation of their constitutional rights, this harm is attenuated by
the imminent consideration of their case by a full oral argument panel of this
court. The court is scheduled to hear challenges related to Louisiana’s and
Texas’s marriage bans in one month and has recently issued an order granting
Plaintiffs’ application to expedite their appeal and scheduled the case for oral
argument before the same panel. Given that Plaintiffs’ claims will soon be
heard in conjunction with these two other cases, a temporary maintenance of
the status quo balances the possibility of this harm with the need to resolve
Plaintiffs claims in a manner that is both expeditious and circumspect.
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                          No. 14-60837
 Accordingly, Mississippi’s motion for stay pending appeal is GRANTED.




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