Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 1 of 39 Pageid#: 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION

JOANNE HARRIS and JESSICA DUFF, and CHRISTY BERGHOFF and VICTORIA KIDD, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
ROBERT F. MCDONNELL, in his official capacity as Governor of Virginia; JANET M. RAINEY, in her official capacity as State Registrar of Vital Records; THOMAS E. ROBERTS, in his official capacity as Staunton Circuit Court Clerk,
Defendants.

No. _________________________
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CLASS ACTION

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF I. INTRODUCTION
1. Named Plaintiffs Joanne Harris and Jessica Duff, and Christy Berghoff and Victoria Kidd (collectively, “Named Plaintiffs”), and the members of the Plaintiff Class1 (collectively, with the Named Plaintiffs, “Plaintiffs”) are loving, committed same-sex couples. The Named Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 on behalf of themselves and the Plaintiff Class, seeking declaratory and injunctive relief for the violation of Plaintiffs’ rights under the Fourteenth Amendment to the United States Constitution caused by the exclusion of same-sex couples from the freedom to marry and from recognition of the marriages some

1 The Plaintiff Class is defined in Section V of this Complaint, below. 1

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 2 of 39 Pageid#: 2
Plaintiffs have entered into in other jurisdictions under the law of the Commonwealth of Virginia (“Commonwealth” or “Virginia”).
2. Marriage plays a unique role in society as the universally recognized and celebrated hallmark of a couple’s commitment to build family life together. It confers upon couples a dignity and status of immense import. Plaintiffs have formed committed, enduring bonds equally worthy of the respect afforded by the Commonwealth to different-sex couples through marriage. Yet, the Commonwealth, without any adequate justification, has enacted an unprecedented series of statutory and constitutional amendments to single out lesbian and gay Virginians by excluding them from the freedom to marry, or by refusing to recognize their existing marriages from other jurisdictions, based solely on their sexual orientation and their sex.
3. Through the Commonwealth’s constitutional and statutory marriage bans and through Defendants’ enforcement of them, the Commonwealth and Defendants send a purposeful message that they view lesbians, gay men, and their children as second-class citizens who are undeserving of the legal sanction, respect, protections, and support that heterosexuals and their families are able to enjoy through marriage. This discrimination (referred to herein as the Commonwealth’s “marriage ban”) is enshrined both in the Commonwealth’s statutes and in article 1, section 15-A of the Commonwealth’s Constitution, which limits marriage to couples composed of “one man and one woman.”
4. The marriage ban inflicts serious and irreparable harms upon same-sex couples and their children. Joanne Harris and Jessica Duff are unmarried, and wish to marry for the same reasons as different-sex couples – to publicly declare their love and commitment before their family, friends, and community, and to give one another and their son J. H.-D. the security and protections that only marriage provides. Christy Berghoff and Victoria Kidd have married in
2

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 3 of 39 Pageid#: 3
another jurisdiction, but are treated as legal strangers in the state they call home – a painful invalidation of their relationship that also deprives them and their daughter L. B.-K. of the protections that a legally recognized marriage most securely provides.
5. Our courts and our society have discarded, one by one, marriage laws that violated the Constitution’s mandate of equality, such as anti-miscegenation laws and laws that denied married women legal independence and the right to make decisions for themselves. History has taught us that the vitality of marriage does not depend on maintaining such discriminatory laws. To the contrary, eliminating these unconstitutional aspects of marriage has enhanced the institution. Ending the exclusion of lesbian and gay couples from marriage is no different. Indeed, in 13 states and the District of Columbia, same-sex couples are marrying and the institution of marriage continues to thrive.
6. Plaintiffs seek equal access to marriage as the only means to secure their rights to due process and equal protection of the law, and to eliminate the myriad serious harms inflicted on them by the marriage ban and Defendants’ enforcement of it. Accordingly, Named Plaintiffs bring this suit on behalf of themselves and all others similarly situated pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief on the grounds that the Commonwealth’s exclusion of same-sex couples from marriage and refusal to recognize their valid marriages from other jurisdictions and Defendants’ enforcement of the marriage ban violate the due process and equal protection guarantees of the Fourteenth Amendment to the United States Constitution.
II. PARTIES A. The Named Plaintiffs 7. Joanne Harris (“Joanne”), and Jessica Duff (“Jessi”), are a lesbian couple residing in Staunton, Virginia, within the Harrisonburg Division of the Western District of Virginia.
3

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 4 of 39 Pageid#: 4
Joanne, age 37, is the Director of Diversity and Advocacy at Mary Baldwin College in Staunton, Virginia. Jessi, age 33, previously worked for many years at an agency serving people with developmental disabilities, and now works for child protective services, conducting child abuse investigations with Shenandoah Valley Social Services. The couple has been in a committed, loving relationship for 11 years, and are the devoted parents of a four-year-old son, J. H.-D.
8. Jessi fell in love at first sight with Joanne when they met in 2002 through mutual friends. Joanne realized that she wanted to spend the rest of her life with Jessi when Jessi’s grandmother wrapped her in a big hug and welcomed her into the family. The couple shares many values, including a commitment to their Christian faith. In 2006, they were baptized together in the backyard river of a fellow church member.
9. Both Joanne and Jessi also grew up in Virginia farmland. Joanne’s dad is a pig farmer, and she lived on the family farm until she left for college. Jessi’s grandfather owned a cow farm, which remains in the family, and Jessi remembers baling hay and feeding and watering the cows as a child.
10. Joanne and Jessi have commingled their finances and pledged to support each other financially. They maintain joint checking and savings accounts, and have designated each other as beneficiaries on their retirement accounts. Both contribute to a 529 Plan (college savings account) for J. H.-D.
11. Joanne and Jessi’s lives revolve around J. H.-D. Joanne is J. H.-D.’s biological mother, and he calls her “Mommy,” and calls Jessi “Momma DeeDee,” or “DeeDee” (his chosen name for Jessi). They all are members of their local YMCA, where J. H.-D. plays soccer and basketball, and takes swimming lessons. Joanne and Jessi also take J. H.-D. to play Kiwanis tee-
4

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 5 of 39 Pageid#: 5
ball through the Staunton Parks and Recreation Department. They look forward all week to Friday, which is “Family Movie Night.”
12. Religion is important to the couple, and when they decided to have a commitment ceremony in 2006, they saw their pastor for marriage counseling, as other heterosexual members of their church do. In their words, they “wanted to feel what normal couples feel, and to get what heterosexual couples get, which is marriage counseling,” as well as to deepen their bond through the process. Their attempts to recreate the experiences that different-sex fiancés and spouses may take for granted, however, are severely limited by the Commonwealth’s marriage ban and Defendants’ enforcement of it.
13. While Joanne and Jessi’s commitment ceremony was one of the happiest days of their lives, they remember how completely different it was when Jessi’s brother, Matt, got married. The moment Matt was married he could cover his wife through his health insurance at work, and feel secure that no one would question his right to make medical decisions if she were incapacitated. Matt also instantly gained the ability to take parenting leave to care for any children he might have with his wife. As Matt expressed to the couple, he was very conscious of the fact that he could take those rights for granted, knowing that they were unavailable to Joanne and Jessi.
14. Joanne and Jessi worry about the hurtful messages of stigma that their inability to marry sends to J. H.-D. He is proud of their family, but even at the age of four is very aware that his parents cannot marry. A picture from their commitment ceremony hangs in their home, and J. H.-D. points to it and says to others, “Mommy and Momma DeeDee got married, and they need to really get married.” Joanne and Jessi believe that a state-approved ceremony would carry great significance for him because he has expressed that he wants to be a part of their
5

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 6 of 39 Pageid#: 6
wedding. J. H.-D. proudly told Joanne and Jessi that he went to school one day and told his friends, “Barack Obama [who supports marriage equality] is president, and hopefully he will help my mommies get married.”
15. The inability to marry leaves Joanne and Jessi vulnerable in a range of contexts. Jessi has no legal relationship to J. H.-D., as she would have if Joanne and Jessi had been married at the time of his birth. Because they cannot marry in Virginia, Jessi also is unable to adopt J. H.-D. as a co-parent in Virginia. The couple is terrified about what might happen if, for example, Joanne and J. H.-D. were both in an accident and J. H.-D. needed emergency medical care. Jessi lacks clear legal authority to authorize such care, and they fear what would happen if Joanne were injured and unable to consent. This fear is exacerbated by the fact that Joanne’s relationship with her parents is tenuous, and both Joanne and Jessi worry that Joanne’s family might seek to override or deny Jessi’s role as J. H.-D.’s mother in such circumstances. Although some other same-sex couples raising children in Virginia have been able to obtain court orders granting some forms of decision-making authority to both parents, at a substantial cost, Joanne and Jessi know there is no guarantee that such papers would be respected in an emergency situation. Moreover, under current Virginia law there is no way for Jessi to secure an order recognizing what she is to J. H.-D.: a co-equal parent.
16. Especially because Joanne has epilepsy, the couple worries that their relationship may be disrespected during a health crisis. They also are concerned because Joanne’s mother disagrees with Joanne’s clear wishes for end-of-life decision-making. Jessi fully respects and is prepared to carry out Joanne’s wishes not to receive life-prolonging measures, but Joanne’s mother has expressed that she would vigorously fight that decision. Joanne also worries that her
6

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 7 of 39 Pageid#: 7
family might contest her will, which would inflict significant uncertainty and anxiety during the very moment that Jessi would also be grieving.
17. Joanne and Jessi have struggled to identify their family on forms that require them to indicate their marital status. They also are frustrated that Jessi cannot sign forms or make school-related decisions that require a legal parent. They are unable to have a family membership at the YMCA where J. H.-D. takes classes. On a daily basis, in ways both profound and mundane, they are reminded that the Commonwealth views them as strangers – to each other, and Jessi to her son. Joanne and Jessi long for the day that their family and commitment to each other can be recognized for what it is: equally loving and devoted, and worthy of the same vital protections that other families formed by couples who may marry receive.
18. Christy Berghoff (“Christy”) and Victoria Kidd (“Victoria”) of Winchester have lived together in a committed relationship for more than nine years. Together, they are the parents of a daughter, L. B.-K., who is eight months old.
19. Victoria, 34, is a small business owner as well as a stay-at-home mother to L. B.K. Victoria works part-time from home as a freelance writer and owner of a small consulting business that provides writing, editing, and resume development services. She is a Certified Professional Resume Writer and a Certified Professional Career Coach, and holds a master’s degree in business administration.
20. Christy, also 34, works as an information technology program manager for the U.S. Department of Justice in Washington, D.C. Christy is also currently working toward a master’s degree in management information systems.
7

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 8 of 39 Pageid#: 8
21. In addition, Christy is a veteran of the United States Air Force. She served in an intelligence unit from 1999 to 2003, when she was honorably discharged with the rank of Senior Airman.
22. Victoria and Christy met online in the summer of 2004, when they were both living in Ohio, and had their first date over coffee shortly thereafter. They quickly realized that they shared important goals and values; in particular, Victoria was impressed with Christy’s maturity as a 25-year-old Air Force veteran. They also came from similar backgrounds. Victoria grew up in the small community of Roanoke Rapids, North Carolina, while Christy grew up in the small community of Greenville, Ohio. Both Victoria and Christy were raised in the Jehovah’s Witness faith.
23. Within less than a year after meeting, Victoria and Christy decided that they not only loved one another, but wanted to permanently commit their lives to one another. In 2004, Christy proposed to Victoria. Victoria accepted, and began wearing a diamond engagement ring that Christy gave her. Less than a year later, Victoria also gave Christy a ring that Christy began wearing as a symbol of their commitment.
24. In 2005, Victoria and Christy moved to Northern Virginia, in order to be near the many job opportunities the area offers. In 2007, they purchased and moved into their home in Winchester, Virginia, within the Harrisonburg Division of the Western District of Virginia. Since then, they have established firm roots in Frederick County, Virginia. In addition to running her business and serving as primary caretaker to L. B.-K., Victoria is an active member of a local civic club and has also done volunteer work with many other groups including the Taproot Foundation, the United Way, the United Service Organizations, and AIDS Response Effort, a Winchester charity that serves people living with HIV and AIDS. Christy’s work and
8

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 9 of 39 Pageid#: 9
commute take up most of her time on weekdays, but she often helps out with Victoria’s service projects on the weekends.
25. Victoria and Christy are legally married under the laws of the District of Columbia. Getting legally married was important to Victoria and Christy because of the legitimacy it afforded to their relationship, and because a government-sanctioned marriage ceremony provided a way for them to officially pledge their lives to one another. Victoria and Christy put off getting married for years because they wanted to do so in their home town rather than travel to a faraway place. But after the District of Columbia granted same-sex couples the freedom to marry in 2010, Victoria and Christy decided to take advantage of that freedom.
26. Victoria and Christy’s wedding took place on August 20, 2011, at a church in Washington, D.C., with about 20 friends and family members in attendance. After the ceremony, they hosted a reception for the wedding guests in their backyard in Winchester.
27. Although their relationship was already committed and strong before they got married, Victoria and Christy both feel that legally marrying has caused a positive change in their relationship. Victoria in particular believes that calling Christy her “wife” rather than her “partner” has helped other people understand the depth of their relationship.
28. But the Commonwealth’s disrespect of their marriage invites others to see them as “less than.” Victoria and Christy started a family together when Christy gave birth to their daughter, L. B.-K. in November 2012, at Winchester Medical Center. One nurse was overtly hostile to both Victoria and Christy, delaying service and responding with unkind words so often that the couple felt like they were “on their own” – even when Victoria called for help because Christy needed medical attention the night after L. B.-K. was born. Victoria and Christy believe
9

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 10 of 39 Pageid#: 10
this kind of experience would be far less common for same-sex couples if the Commonwealth recognized the equal dignity of their relationships.
29. Because the Commonwealth does not recognize Victoria as married to Christy, Victoria initially had no legal relationship to L. B.-K. After their baby was born, Victoria and Christy retained an attorney whom they paid hundreds of dollars to secure co-custodianship for Victoria that gives her the legal right to make medical and other decisions for L. B.-K. when Christy is not present. However, Victoria and Christy worry about whether the co-custodianship papers they carry with them would be enough to make sure Victoria’s relationship with L. B.-K. is respected in a time of crisis. Additionally, the papers do not confer full parental status on Victoria.
30. Victoria and Christy are considering seeking additional legal assistance with preparation of wills, living wills, powers of attorney, and other legal documents to help protect one another given that, due to the marriage ban and Defendants’ enforcement of it, their marriage is not legally respected in the Commonwealth. However, this process would require a large investment of time and money, and Victoria and Christy are aware that, even with every possible private legal agreement in place, they would not have access to many of the rights and responsibilities that come with marriage in Virginia.
31. When Victoria and Christy purchased their home in Winchester in 2007, they wanted to get a home loan guaranteed by the federal Veteran’s Administration (the “V.A.”). The V.A. guarantees certain types of home loans issued to veterans and their spouses, and those loan products typically feature better interest rates and other financial advantages over other loan products because of the V.A. guarantee. However, Christy and Victoria were not able to get a V.A. loan, because Victoria was not Christy’s legal spouse and lenders were unwilling to issue
10

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 11 of 39 Pageid#: 11
loans with a V.A. guarantee covering only half of the total amount. Since then, Victoria and Christy have married in the District of Columbia and the Supreme Court has struck down as unconstitutional the section of the federal Defense of Marriage Act that previously forbade any federal agency from recognizing the marriages of same-sex couples. However, if they were to buy a new house in Virginia or seek to refinance their current mortgage, Victoria and Christy today would still not be eligible for the full V.A. loan guarantee that other veterans’ families receive, because the V.A. currently looks to the law of joint applicants’ state of residence to determine whether they are legally married, and Virginia refuses to recognize Victoria and Christy as married.
32. Christy commutes more than 75 miles each way from the couple’s home in Winchester to her office in the District of Columbia. The chance that one of them could suffer a medical emergency during a weekday when the other is not immediately available makes Victoria and Christy particularly concerned about needing to make sure they are respected as spouses by first responders, hospital staff, and anyone else who might question their legal relationship during an emergency situation. These concerns were further heightened when Victoria suffered a minor stroke last year and required emergency medical treatment, and again when Victoria and Christy had the painful experience of having a nurse disrespect them in the hospital the night after L. B.-K.’s birth.
33. Victoria and Christy feel strongly that Virginia is their home and is where they want their child to grow up, but they feel disrespected under current Virginia law. The couple hopes their marriage is recognized in the Commonwealth before L. B.-K. is old enough to understand that Virginia does not give her parents and family the same rights and respect it gives other parents and families.
11

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 12 of 39 Pageid#: 12
B. The Defendants 34. Defendant Robert F. McDonnell is sued in his official capacity as Governor of the Commonwealth of Virginia. As decreed by article 5, sections 1 and 7 of the Virginia Constitution, Governor McDonnell is vested with the chief executive power of the Commonwealth and has the duty to see that the Commonwealth’s laws, including the marriage ban, are faithfully executed. Pursuant to Va. Code Ann. § 2.2-103, Governor McDonnell also bears the authority and responsibility for the formulation and administration of the policies of the executive branch, including administrative agency policies relating to health insurance coverage, vital records, tax obligations, state employee benefits programs (including in Governor McDonnell’s role as Chief Personnel Officer of the Commonwealth), motor vehicles (including, for example, changing one’s last name on a driver’s license), and regulation of health professions (including, for example, implementation of laws governing medical decision-making by family members and requests for autopsies) – all of which involve recognizing marital status. Governor McDonnell appoints the heads of various agencies with responsibility for recognizing the marriages of same-sex couples, and may remove those appointees for various reasons, including for how they administer laws relating to the ability of same-sex couples to marry, or to have their valid marriages from other jurisdictions recognized. Governor McDonnell also has authority to remove from office members of boards, commissions, councils and collegial bodies for misconduct, including a failure to comply with the obligations of the federal Constitution. Governor McDonnell may also enforce such obligations through his ability to initiate suit to protect the interests of the Commonwealth’s citizens. Governor McDonnell is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint.
12

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 13 of 39 Pageid#: 13
35. Defendant Janet M. Rainey is sued in her official capacity as the State Registrar of Vital Records (“State Registrar”). Ms. Rainey’s duties include directing and supervising the system of vital records and serving as the custodian of its records; directing, supervising, and controlling the activities of all persons pertaining to the operation of the system of vital records; as part of these vital records-related duties, furnishing forms for the marriage license, marriage certificate, and application for marriage license used in the Commonwealth; maintaining a publicly available online vital records index of marriages; and compiling, publishing, and making available to the public aggregate data on the number of marriages occurring in the Commonwealth, including the age and race of the spouses, and the number of minor children involved. Ms. Rainey must ensure compliance through all of these functions with relevant Commonwealth laws, including those that currently exclude same-sex couples from marriage. Upon information and belief, this includes furnishing forms that prohibit same-sex couples from marrying by requiring a “Bride” and a “Groom.” Ms. Rainey also enforces Virginia law with respect to birth certificates, which disrespects same-sex couples’ valid marriages from other jurisdictions by requiring that, for children resulting from assisted conception, the birth certificate contain the name of the mother and her “husband.” Ms. Rainey is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint.
36. Defendant Thomas E. Roberts is sued in his official capacity as Staunton Circuit Court Clerk, an office authorized by Article VII, Section 4 of the Commonwealth’s Constitution. Mr. Roberts’ duties include issuing marriage licenses, which couples may seek from him regardless of where they reside in Virginia; requiring the parties contemplating marriage to state under oath the information required for the marriage record, and delivering certificates of that
13

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 14 of 39 Pageid#: 14
information to the parties along with the marriage license; levying and collecting a tax on each marriage license; authorizing qualified ministers to perform marriage rites; filing and preserving the originals and indexing the names of both spouses, upon return of the marriage license and certificate from the officiant; forwarding a record of each marriage to the State Registrar; providing an attorney for the Commonwealth a list of all marriage licenses issued during the preceding calendar year that have not been returned by the person celebrating the marriage; and correcting marriage records as needed. Mr. Roberts must ensure compliance through all of these functions with relevant Commonwealth laws, including those that exclude same-sex couples from marriage. Mr. Roberts is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint.
37. Defendants, through their respective duties and obligations, are responsible for enforcing the Commonwealth’s marriage ban. Each Defendant, and those subject to their direction, supervision, and control, intentionally performed, participated in, aided and/or abetted in some manner the acts alleged here, proximately caused the harm alleged herein, and will continue to injure Plaintiffs irreparably if not enjoined. Accordingly, the relief requested herein is sought against each Defendant, as well as all persons under their supervision, direction, or control, including but not limited to their officers, employees, and agents.
III. JURISDICTION AND VENUE 38. Named Plaintiffs bring this action under 42 U.S.C. § 1983 on behalf of themselves and the Plaintiff Class to redress the deprivation under color of state law of rights secured by the United States Constitution.
14

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 15 of 39 Pageid#: 15
39. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States.
40. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) and (2) because Defendant Roberts resides within the District and the Harrisonburg Division of it and all Defendants reside within the Commonwealth of Virginia; and because a substantial part of the events that gave rise to the Named Plaintiffs’ claims took place within the District and the Harrisonburg Division of it.
41. This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure, and 28 U.S.C. §§ 2201 and 2202.
42. This Court has personal jurisdiction over Defendants because they are domiciled in the Commonwealth.
IV. STATEMENT OF FACTS 43. Plaintiffs are residents of the Commonwealth who experience the same joys and challenges of family life as their heterosexual neighbors, co-workers, and other community members who freely may marry. Plaintiffs are productive, contributing citizens who support their families and nurture their children, but must do so without the same legal shelter, dignity, and respect afforded by the Commonwealth to other families through access to the universally celebrated status of marriage. The Commonwealth’s exclusion of Plaintiffs from marriage, and Defendants’ enforcement of that exclusion, subjects Plaintiffs to an inferior “second class” status relative to the rest of the political community and deprives them and their children of equal dignity, security, and legal protections afforded to other Virginia families.
15

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 16 of 39 Pageid#: 16
Named Plaintiffs’ Respective Attempt To Marry And Marriage In Another Jurisdiction 44. But for the fact that they are of the same sex, Joanne Harris and Jessica Duff are
legally qualified to marry under the laws of the Commonwealth and wish to marry in Virginia. Each is over the age of 18 and fully competent, and neither is precluded from marriage as a result of having another spouse or being closely related to the other. They are willing to provide the requisite information to receive a marriage license and to pay the required fee. Joanne Harris and Jessica Duff are able and eager to assume the responsibilities of marriage.
45. On July 29, 2013, Joanne Harris and Jessica Duff appeared in person at the Staunton Circuit Court to apply for a marriage license. Defendant Roberts refused their marriage license application because they are a same-sex couple.
46. Christy Berghoff and Victoria Kidd were validly married in Washington, D.C. on August 20, 2011, and would be recognized as such by the Commonwealth but for the fact that they are a same-sex couple. The Plaintiff Class
47. The Class the Named Plaintiffs represent reflects the rich diversity of the Commonwealth. Class members come from all walks of life, and include, by way of example, people who put their lives on the line daily to serve the Commonwealth as police officers and fire fighters; people who are doing or have done the same for their country as members of the armed forces; doctors, nurses, social workers, attorneys, government officials and employees, scientists, artists, engineers, sales people, office workers, small business owners, professors, students, stay-at-home parents, and retirees; and members of diverse faith communities, as well as some of their pastors and rabbis. Many are raising children together, and some have grandchildren.
16

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 17 of 39 Pageid#: 17
48. Each member of the Plaintiff Class either has been unable to marry his or her same-sex partner in Virginia because of the marriage ban or validly married a partner of the same sex in another jurisdiction but is treated as a legal stranger to his or her spouse under Virginia law. The Commonwealth’s Statutory and Constitutional Amendments Single Out Same-Sex Couples and Exclude Them From Marriage
49. Beginning in 1975, the Commonwealth has enacted a series of statutory and constitutional bans designed to exclude same-sex couples from marriage. These marriage bans cannot be explained by reference to legitimate public policies that could justify the disadvantages the marriage bans impose on certain same-sex couples. Rather, the history of these enactments and their own text demonstrate that interference with the equal dignity of same-sex couples was more than a mere side effect of the various enactments – it was their essence.
50. In 1975, shortly after same-sex couples in other jurisdictions filed the first lawsuits seeking the freedom to marry, the Commonwealth for the first time enacted a statutory provision specifically to exclude same-sex couples from marriage. The new statute, Virginia Code § 20-45.2, provided that, “A marriage between persons of the same sex is prohibited.”
51. In 1997, in response to court decisions in Hawaii that indicated Hawaii might soon allow same-sex couples to marry, the Commonwealth reenacted Section 20-45.2 and added sweeping language that not only voided “any marriage entered into by persons of the same sex in another state or jurisdiction,” but also voided “any contractual rights created by such marriage,” rendering them “unenforceable.”
52. In 2004, the Commonwealth went even further to ensure that same-sex couples could not obtain any state-recognized status – even one significantly inferior to marriage – by enacting Virginia Code Annotated § 20-45.3, which prohibits same-sex couples from obtaining a
17

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 18 of 39 Pageid#: 18
“civil union, partnership contract or other arrangement . . . purporting to bestow the privileges or obligations of marriage.” One of the most extreme laws restricting the rights of same-sex couples in the country, the statute also barred any and all recognition of a “civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction,” providing that any such status “shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.” The Virginia legislature rejected an amendment offered by the then-Governor Mark Warner that would have mitigated the adverse effects of the law on contractual rights.
53. In 2005 the Virginia legislature took the first step required to refer a constitutional amendment to the voters for approval, for the purpose of enshrining the marriage ban into the Commonwealth’s Constitution. The legislature approved a proposed amendment providing:
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. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage. 54. As required for a proposed constitutional amendment, the legislature approved the measure again in early 2006, and the voters ratified Virginia Constitution article 1, § 15-A in November 2006 by a 57% to 43% vote. 55. Pursuant to these laws, same-sex couples are prohibited from all access to marriage; they can neither marry in the Commonwealth nor have a valid marriage from another jurisdiction recognized.
18

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 19 of 39 Pageid#: 19
The Commonwealth’s Exclusion of Same-Sex Couples from Marriage Inflicts Profound Harms on Plaintiffs
56. Barring same-sex couples from marriage disqualifies them from critically important rights and responsibilities that different-sex couples rely upon to secure their commitment to each other, and to safeguard their families. By way of example only, same-sex couples are denied:
a. The ability to solemnize their relationships through state-sanctioned ceremonies. Va. Code Ann. § 20-13. The denial of state sanction or recognition deprives same-sex couples of important legal protections that automatically come with state-sanctioned marriage.
b. The ability to celebrate their marriage in their chosen faith tradition or in a civil ceremony because ministers, rabbis, priests, other faith leaders, and authorized marriage celebrants are specifically prohibited even from using the word “marriage” in a religious ceremony (even if permitted or encouraged by their faith tradition) or other ceremony celebrating their committed union and could face criminal prosecution if they did. Va. Code Ann. § 20-28. The important right to celebrate a “marriage” through religious ceremony or other ceremony – which symbolizes the binding together of two lives and two families, and creates memories that couples and families cherish for a lifetime – is denied to same-sex couples in the Commonwealth.
c. The ability to safeguard family resources under an array of laws that protect spousal finances, including for example, the exemption from taxable income of the value of health insurance coverage that one partner receives through the other’s employment; the exemption or deferral of taxes on the property of
19

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 20 of 39 Pageid#: 20
certain elderly or disabled residents, Va. Code Ann. § 58.1-3210; and property tax exemptions for the surviving spouse of an eligible veteran, Va. Code Ann. § 58.1-3219.5. d. The ability to make caretaking decisions in times of death and disaster, including priority to make medical decisions for an incapacitated spouse, Va. Code Ann. § 54.1-2986; the ability to petition a circuit court for an autopsy, Va. Code Ann. § 32.1-285; the automatic right to authorize interment, Va. Code Ann. § 57-27.3; and the automatic right and priority to make anatomical gifts of a decedent’s body, Va. Code Ann. § 32.1-291.9. e. The ability to support each other in end-of-life circumstances, such as being assured privacy for visits with a spouse if an individual is in a nursing home, and the right to share a room with a spouse if both reside in the same nursing home. Va. Code Ann. § 32.1-138(A)(15). f. The right to inheritance under the laws of intestacy, Va. Code Ann. § 64.2200; to claim an elective share in a deceased spouse’s estate, Va. Code Ann. § 64.2-302; rights in the family residence pending final determination of the estate, Va. Code Ann. § 64.2-307; a homestead allowance, Va. Code Ann. § 64.2-311; and various kinds of survivor benefits, including for example, survivor benefits for a spouse and children of an individual killed while performing firefighting duties, Va. Code Ann. § 27-39. g. Benefits for families who have made some of the greatest sacrifices for our country, including educational benefits, home loan guarantees, and a real
20

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 21 of 39 Pageid#: 21
estate tax exemption for surviving spouses of military service members killed in action, see, e.g., Va. Code Ann. § 2.2-2001. h. The ability to secure legal recognition for parent-child bonds through the mechanisms afforded to spouses, including joint adoption, Va. Code Ann. § 63.2-1201; adoption of a spouse’s child, Va. Code Ann. § 63.2-1241; the ability of a couple to legitimate their child by marrying, Va. Code Ann. § 2031.1; and the presumption of parentage for children born into a marriage, Va. Code Ann. § 63.2-1202(D). i. In the event that a couple separates, access to an orderly dissolution process for terminating the relationship and assuring an equitable division of the couple’s assets and debts. Va. Code Ann. §§ 20-96, 20-107.3. j. A range of important responsibilities that, like rights, enhance the dignity and integrity of the person. As one example, same-sex couples are denied the ability to be made formally accountable to each other through, obligations of spousal support and child support. Va. Code Ann. §§ 20-107.1, 20-107.2. k. A host of federal rights and responsibilities that span the entire United States Code and the whole realm of federal regulations. Unmarried couples are denied recognition for virtually all purposes throughout the more than 1,000 statutes and numerous federal regulations relating to marriage, including laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits. Couples validly married in another jurisdiction and living in the Commonwealth may qualify for some federal benefits and protections, but will likely be denied others such as veteran’s spousal benefits
21

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 22 of 39 Pageid#: 22
and Social Security survivor benefits. Many of these deprivations drain family economic resources, causing financial harm not only to same-sex couples but to their children as well. 57. In addition to the tangible harms listed above, Plaintiffs are denied the unique social recognition that marriage conveys. Without access to the familiar language and legal label of marriage, Plaintiffs are unable instantly or adequately to communicate to others the depth and permanence of their commitment, or to obtain respect for that commitment as others do simply by invoking their married status. 58. The substantive and dignitary inequities imposed on committed same-sex couples include particular harms to same-sex couples’ children, who are equally deserving of the stability, permanence, and legitimacy that are enjoyed by children of different-sex couples who marry. Civil marriage affords official sanctuary to the family unit, offering parents and children critical means to secure legal parent-child bonds, and a familiar, public way of demonstrating those bonds to third parties. By denying same-sex couples marriage, the Commonwealth reinforces the view held by some that the family bonds that tie same-sex parents and their children are less consequential, enduring, and meaningful than those of different-sex parents and their children. Same-sex couples and their children accordingly must live with the vulnerability and stress inflicted by a lack of access to the same mechanisms for securing their legal relationships, and the ever-present possibility that others may question their familial relationship – in social, legal, educational, and medical settings and in moments of crisis – in a way that spouses can avoid by simple reference to being married. 59. Children from a young age understand that marriage signifies an enduring family unit, and likewise understand when the Commonwealth has deemed a class of families as less
22

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 23 of 39 Pageid#: 23
worthy than other families, undeserving of marriage, and not entitled to the same societal recognition and support as other families. The Commonwealth has no adequate interest to justify marking the children of same-sex couples, including the children of Named Plaintiffs, with a badge of inferiority that will invite disrespect in school, on the playground, and in every other sphere of their lives.
60. The government is a powerful teacher of discrimination to others. By decreeing that the relationships of same-sex couples should be ignored in the Commonwealth and enforcing that policy, the Commonwealth and Defendants instruct all persons with whom samesex couples interact, including those couples’ own children, that their relationships are less worthy than others. Bearing the imprimatur of the government, the Commonwealth’s statutory and constitutional marriage ban, and Defendants’ enforcement of it, communicates a view that same-sex couples are unfit for the dignity, respect, and stature afforded to different-sex couples, and this encourages others to follow the government’s example in discriminating against them.
61. Many private entities defer to the Commonwealth’s and Defendants’ conferral of marital status in defining “family” for purposes of an array of important benefits, often resulting in the exclusion of same-sex couples and their children from important safety nets such as private employer-provided health insurance for family members. The Commonwealth and Defendants also encourage disrespect of committed same-sex couples and their children by others in workplaces, schools, businesses, and other major arenas of life, in ways that would be less likely to occur and more readily corrected if marriage were available to same-sex couples.
23

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 24 of 39 Pageid#: 24
The Commonwealth’s Exclusion Of Same-Sex Couples from Marriage Is Not Even Rationally Related To A Legitimate Governmental Purpose, Let Alone Substantially Related To An Important Government Purpose Or Narrowly Tailored To A Compelling Governmental Purpose
62. No legitimate, let alone important or compelling, interest exists to exclude samesex couples from the historic and highly venerated institution of marriage. An individual’s capacity to establish a loving and enduring relationship does not depend upon that individual’s sexual orientation or sex in relation to his or her committed life partner, nor is there even a legitimate interest in justifying same-sex couples’ exclusion from marriage and the spousal protections it provides on such bases.
63. Neither history nor tradition can justify the Commonwealth’s discriminatory exclusion of same-sex couples from marriage. Marriage has remained vital and enduring because of, not despite, its resiliency in response to a dynamic society, as society and the courts have cast off prior restrictions on interracial marriage and coverture. The Constitution is not confined to historic notions of equality, and no excuse for the Commonwealth’s discriminatory restriction can be found in the pedigree of such discrimination.
64. As the Supreme Court has made clear, the law cannot, directly or indirectly, give effect to private biases. Liberty and equality, not moral disapproval, must be the guiding framework for a state’s treatment of its citizens.
65. Excluding same-sex couples from marriage does nothing to protect or enhance the rights of different-sex couples. Different-sex spouses will continue to enjoy the same rights and status conferred by marriage regardless of whether same-sex couples may marry, unimpaired by the acknowledgment that this freedom belongs equally to lesbians and gay men.
66. Although the Commonwealth has a valid interest in protecting the public fisc, it may not pursue that interest by making invidious distinctions between classes of its citizens
24

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 25 of 39 Pageid#: 25
without adequate justification. Moreover, the Commonwealth not only lacks any such fiscal justification but rather would generate additional revenues by allowing same-sex couples to marry and to be recognized as married.
67. The Commonwealth’s interest in child welfare is affirmatively harmed rather than furthered by the exclusion of same-sex couples from marriage. That exclusion injures same-sex couples’ children without offering any conceivable benefit to other children.
68. Barring same-sex couples from marriage does not affect which couples raise children together. Same-sex couples in Virginia can and do bear children through use of reproductive technology that is available to both same-sex and different-sex couples, and bring children into their families through foster care and adoption. Marriage has never been the sole province of couples who are parents. Neither Virginia nor any other state in this country has ever restricted marriage to those capable of or intending to procreate.
69. There is no valid basis for the Commonwealth to assert a preference for parenting by different-sex couples over same-sex couples. Based on more than 30 years of research, the scientific community has reached a consensus that children raised by same-sex couples are just as well-adjusted as children raised by different-sex couples. This consensus has been recognized by every major professional organization dedicated to children’s health and welfare including the American Academy of Pediatrics, the American Psychological Association, the American Medical Association, the National Association of Social Workers, and the Child Welfare League of America.
70. Other courts have found, after trials involving expert testimony, that there is no rational basis for favoring parenting by heterosexual couples over gay and lesbian couples. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 980 (N.D. Cal. 2010) (finding that the
25

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 26 of 39 Pageid#: 26
research supporting the conclusion that “[c]hildren raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted” is “accepted beyond serious debate in the field of developmental psychology”), aff’d sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated for lack of standing sub nom. Hollingsworth v. Perry, No. 12-144, 2013 WL 3196927 (U.S. June 26, 2013); In re Adoption of Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008) (“[B]ased on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.”), aff’d sub nom. Florida Dep’t of Children & Families v. Adoption of X.X.G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v. Child Welfare Agency Review Bd., Nos. 1999-9881, 2004 WL 3154530, at *9 and 2004 WL 3200916, at *3-4 (Ark. Cir. Ct. Dec. 29, 2004) (holding based on factual findings regarding the well-being of children of gay parents that “there was no rational relationship between the [exclusion of gay people from becoming foster parents] and the health, safety, and welfare of the foster children.”), aff’d sub nom. Dep’t of Human Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006).
71. Excluding same-sex couples from marriage harms their children, including by branding their families as inferior and less deserving of respect, and by encouraging private bias and discrimination. Denying same-sex couples the equal dignity and status of marriage humiliates the children now being raised by same-sex couples, and makes it more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
72. Excluding same-sex couples from civil marriage will not make the children of different-sex spouses more secure. Different-sex spouses’ children will continue to enjoy the
26

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 27 of 39 Pageid#: 27
benefits that flow from their parents’ marriage regardless of whether same-sex couples are permitted to marry. The marriage ban has no conceivable effect on the choices different-sex couples make about such profound issues as whether to marry, whether to have children, and whether to raise their children in wedlock.
73. The Commonwealth’s interest in the welfare of children parented by same-sex couples is as great as its interest in the welfare of any other children. The family security that comes from the Commonwealth’s official recognition and support is no less important for samesex parents and their children than it is for different-sex parents and their children.
V. CLASS ACTION ALLEGATIONS 74. Named Plaintiffs bring this action for themselves and, pursuant to Rules 23(a), 23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of all same-sex couples who are injured by the Commonwealth’s marriage ban (the “Plaintiff Class”). The class, as proposed by Named Plaintiffs, consists of:
a. all persons residing in Virginia who are unmarried, and either 1. wish to marry a person of the same sex, have applied for a marriage license in the Commonwealth with a person of the same sex, and have been denied the license; or 2. wish to marry a person of the same sex in the Commonwealth, but have not attempted to apply for a marriage license because the marriage ban would render such an attempt futile; as well as
b. all persons residing in Virginia who are validly married to a person of the same sex in another jurisdiction, and wish to have their marriage recognized by the Commonwealth.
27

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 28 of 39 Pageid#: 28
75. The class is so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). Upon information and belief, there are thousands of same-sex couples in Virginia who are married or would marry if Virginia law permitted them to do so. The Commonwealth’s marriage ban, and Defendants’ enforcement of it, prevents all of those couples from either marrying or having their valid marriage from another jurisdiction recognized by the Commonwealth.
76. There are questions of law and fact common to the members of the class. Fed. R. Civ. P. 23(a)(2). Such questions include, but are not limited to:
a. whether the Commonwealth’s marriage ban violates federal substantive due process guarantees, including the fundamental right to marry, and liberty interests in autonomy, and family integrity and association;
b. whether the Commonwealth’s marriage ban violates guarantees of equal protection regardless of an individual’s sexual orientation, and sex in relation to the sex of his or her life partner; and
c. the level of constitutional scrutiny applicable to governmental discrimination based on sexual orientation.
Defendants are expected to raise common defenses to those claims. 77. The claims of Named Plaintiffs are typical of those of the Plaintiff Class, as their claims all arise from the Commonwealth’s marriage ban and are based on the same theories of law. 78. Named Plaintiffs are capable of fairly and adequately protecting the interests of the Plaintiff Class because they do not have any interests antagonistic to the class. Named Plaintiffs as well as the Plaintiff Class all seek to enjoin the Commonwealth’s marriage ban.
28

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 29 of 39 Pageid#: 29
Moreover, Named Plaintiffs are represented by counsel experienced in civil rights litigation and complex class action litigation.
79. This action is maintainable as a class action under Fed. R. Civ. P. 23(b)(1) because prosecution of separate actions by individuals would create a risk of inconsistent and varying adjudications, resulting in some Virginia same-sex couples having access to marriage, or recognition for their valid marriage, and others not. In addition, prosecution of separate actions by individual members could result in adjudications with respect to individual members that, as a practical matter, would substantially impair the ability of other members to protect their interests.
80. This action is also maintainable as a class action under Fed. R. Civ. P. 23(b)(2) because Defendants’ enforcement of the marriage ban applies generally to the class, by precluding all class members from marrying or having a valid marriage from another jurisdiction recognized. The injunctive and declaratory relief sought is appropriate respecting the class as a whole.
VI. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF
Deprivation of Due Process U.S. Const. Amend. XIV
81. Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of this complaint as though fully set forth herein.
82. Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief.
83. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
29

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 30 of 39 Pageid#: 30
84. Virginia Constitution article 1, § 15-A, Virginia Code Annotated § 20-45.2, and all other sources of state law that preclude marriage for same-sex couples or prevent recognition of their marriages violate the due process guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs.
85. The right to marry the unique person of one’s choice and to direct the course of one’s life in this intimate realm without undue government restriction is one of the fundamental liberty interests protected by the Due Process Clause of the Fourteenth Amendment. Defendants’ actions to enforce the marriage ban directly and impermissibly infringe Plaintiffs’ choice of whom to marry, interfering with a core, life-altering, and intimate personal choice.
86. The Due Process Clause also protects choices central to personal dignity and autonomy, including each individual’s rights to family integrity and association. Defendants’ actions to enforce the marriage ban directly and impermissibly infringe Plaintiffs’ deeply intimate, personal, and private decisions regarding family life, and preclude them from obtaining full liberty, dignity, and security for themselves, their family, and their parent-child bonds.
87. As the Commonwealth’s chief executive officer, Defendant McDonnell’s duties and actions to enforce the Commonwealth’s marriage ban, including those taken pursuant to his responsibility for the policies of the executive branch relating to, for example, health insurance coverage, vital records, tax obligations, state employee benefits programs, and regulation of motor vehicles and health professions, violate Plaintiffs’ fundamental right to marry and constitutional rights to liberty, dignity, autonomy, family integrity, association, and due process under the Fourteenth Amendment to the United States Constitution.
88. As the State Registrar, Defendant Rainey’s duties and actions to ensure compliance with the Commonwealth’s discriminatory marriage ban by, for example, furnishing
30

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 31 of 39 Pageid#: 31
forms for marriage licenses that prohibit same-sex couples from marrying by requiring a “Bride” and a “Groom,” and by requiring that birth certificates contain the name of a mother and her “husband” for children resulting from assisted conception, violate the Plaintiffs’ fundamental right to marry and constitutional rights to liberty, dignity, autonomy, family integrity, association, and due process under the Fourteenth Amendment to the United States Constitution.
89. As Staunton Circuit Court Clerk, Defendant Roberts’ duties and actions to ensure compliance with the Commonwealth’s discriminatory marriage ban by, for example, denying same-sex couples marriage licenses, violate the fundamental right to marry and the rights, protected under the Fourteenth Amendment to the United States Constitution, to liberty, dignity, autonomy, family integrity, association, and due process of Joanne Harris and Jessica Duff, and the unmarried members of the Plaintiff Class.
90. Defendants’ actions thus deny and abridge Plaintiffs’ fundamental right to marry, and liberty and due process interests in autonomy, and family integrity and association, by penalizing Plaintiffs’ self-determination in the most intimate sphere of their lives.
91. Defendants cannot satisfy the Due Process Clause’s decree that governmental interference with a fundamental right or liberty interest may be sustained only upon a showing that the burden is narrowly tailored to serve a compelling or even important governmental interest, as the marriage ban is not even tailored to any legitimate interest at all.
SECOND CLAIM FOR RELIEF Deprivation of Equal Protection
U.S. Const. Amend. XIV 92. Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of this complaint as though fully set forth herein.
31

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 32 of 39 Pageid#: 32
93. Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief.
94. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
95. Virginia Constitution article 1, § 15-A, Virginia Code Annotated § 20-45.2, and all other sources of state law that preclude marriage for same-sex couples or prevent recognition of their marriages violate the equal protection guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs. Moreover, by enshrining discrimination in the form of a constitutional amendment, Virginia Constitution article 1, § 15-A, deprives lesbian and gay Virginians of equal protection of the laws by locking them out of the political process and making it uniquely more difficult to secure legislation on their behalf. The conduct of Defendants in enforcing these laws violates the right of Plaintiffs to equal protection by discriminating impermissibly on the basis of sexual orientation and sex.
96. As the Commonwealth’s chief executive officer, Defendant McDonnell’s duties and actions to enforce the Commonwealth’s discriminatory marriage ban, including those taken pursuant to his responsibility for the policies of the executive branch relating to, for example, health insurance coverage, vital records, tax obligations, state employee benefits programs, and regulation of motor vehicles and health professions, violate Plaintiffs’ constitutional rights to equal treatment, without regard to sexual orientation or sex, under the Fourteenth Amendment to the United States Constitution.
97. As the State Registrar, Defendant Rainey’s duties and actions to ensure compliance with the Commonwealth’s discriminatory marriage ban by, for example, furnishing
32

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 33 of 39 Pageid#: 33
forms for marriage licenses that prohibit same-sex couples from marrying by requiring a “Bride” and a “Groom,” and by requiring that birth certificates contain the name of a mother and her “husband” for children resulting from assisted conception, violate the constitutional rights of Plaintiffs to equal treatment.
98. As Staunton Circuit Court Clerk, Defendant Roberts’ duties and actions to ensure compliance with the Commonwealth’s discriminatory marriage ban by, for example, denying same-sex couples marriage licenses, violate the constitutional rights to equal treatment of Joanne Harris and Jessica Duff, and the unmarried members of the Plaintiff Class.
99. The Commonwealth’s marriage ban, and Defendants’ actions to enforce it, denies same-sex couples equal dignity and respect, and deprives their families of a critical safety net of rights and responsibilities. The Commonwealth’s marriage ban brands lesbians and gay men and their children as second-class citizens through a message of government-imposed stigma and fosters private bias and discrimination, by instructing all persons with whom same-sex couples interact, including their own children, that their relationship is less worthy than others. The Commonwealth’s marriage ban and Defendants’ actions reflect moral disapproval and antipathy toward lesbians and gay men.
100. Same-sex couples such as the plaintiff couples are identical to different-sex couples in all of the characteristics relevant to marriage.
101. Same-sex couples make the same commitment to one another as different-sex couples. Like different-sex couples, same-sex couples fall in love, build their lives together, plan their futures together, and hope to grow old together. Like different-sex couples, same-sex couples support one another emotionally and financially and take care of one another physically
33

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 34 of 39 Pageid#: 34
when faced with injury or illness, as for example Plaintiff Christy Berghoff did for her wife Victoria Kidd when Victoria suffered a stroke last year.
102. Plaintiffs seek to marry for the same emotional, romantic, and dignitary reasons, and to provide the same legal shelter to their families, as different-sex spouses.
103. Like some different-sex couples, some same-sex couples are parents raising children together. All of the Named Plaintiffs are raising children jointly with their same-sex partners.
104. Plaintiffs and their children are equally worthy of the tangible rights and responsibilities, as well as the respect, dignity, and legitimacy that access to marriage confers on different-sex couples and their children. For the many children being raised by same-sex couples, the tangible resources and societal esteem that access to marriage confers is no less precious than for children of different-sex couples.
105. Discrimination Based on Sexual Orientation. The Commonwealth’s marriage ban targets lesbian and gay Virginians as a class for exclusion from marriage and discriminates against each Plaintiff based on his or her sexual orientation both facially and as applied.
106. The exclusion of Plaintiffs from marriage based on their sexual orientation subjects Defendants’ conduct to strict or at least heightened scrutiny, which Defendants’ conduct cannot withstand because the exclusion does not even serve any legitimate governmental interests, let alone any important or compelling interests, nor does it serve any such interests in an adequately tailored manner.
107. Lesbians and gay men have suffered a long and painful history of discrimination in the Commonwealth and across the United States.
34

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 35 of 39 Pageid#: 35
108. Sexual orientation bears no relation to an individual’s ability to perform in or contribute to society.
109. Sexual orientation is a core, defining trait that is so fundamental to one’s identity and conscience that a person may not legitimately be required to abandon it (even if that were possible) as a condition of equal treatment.
110. Sexual orientation generally is fixed at an early age and highly resistant to change through intervention. No credible evidence supports the notion that such interventions are either effective or safe; indeed, they often are harmful and damaging. No mainstream mental health professional organization approves interventions that attempt to change sexual orientation, and virtually all of them have adopted policy statements cautioning professionals and the public about these treatments.
111. Lesbians and gay men are a discrete and insular minority, and ongoing prejudice against them continues seriously to curtail the operation of those political processes that might ordinarily be relied upon to protect minorities. Gay people have fewer civil rights protections at the state and federal level than racial minorities and women had when race- and sex-based classifications were declared to be suspect and quasi-suspect, respectively.
112. Lesbians and gay men lack express statutory protection against discrimination in employment, public accommodations, and housing at the federal level and in more than half the states, including the Commonwealth; are systematically underrepresented in federal, state, and local democratic bodies; have been stripped of the right to marry through 30 state constitutional amendments and are currently not permitted to marry in a total of 37 states; and have been targeted across the nation through the voter initiative process more than any other group.
35

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 36 of 39 Pageid#: 36
113. Discrimination Based on Sex. The Commonwealth’s marriage ban discriminates against Plaintiffs on the basis of sex, both facially and as applied, barring Plaintiffs from marriage or from being recognized as validly married, solely because each of the Plaintiffs wishes to marry a life partner of the same sex. The sex-based restriction is plain on the face of the Commonwealth’s laws, which restrict marriage to “one man and one woman,” Va. Const. art. 1, § 15-A, and prohibit marriage or recognition of a marriage from another jurisdiction between “persons of the same sex,” Va. Code Ann. § 20-45.2.
114. Because of these sex-based classifications, Joanne Harris is precluded from marrying her devoted life partner because she is a woman and not a man; were Joanne a man, she could marry Jessica Duff. Similarly, Christy Berghoff is precluded from having her marriage to Victoria Kidd recognized as valid because she is a woman and not a man; were Christy a man, her validly-entered marriage to Victoria would be recognized as such under Virginia law.
115. The Commonwealth’s marriage ban also serves the impermissible purpose of enforcing and perpetuating sex stereotypes by excluding Plaintiffs from marriage, or from being recognized as validly married, because Plaintiffs have failed to conform to sex-based stereotypes that men should marry women, and women should marry men.
116. Given that there are no longer legal distinctions between the duties of husbands and wives, there is no basis for the sex-based eligibility requirements for marriage.
117. The exclusion of Plaintiffs from marriage based on their sex and the enforcement of gender-based stereotypes cannot survive the heightened scrutiny required for sex-based discrimination.
118. Discrimination With Respect to Fundamental Rights and Liberty Interests Secured by the Due Process Clause. The marriage ban discriminates against Plaintiffs based on
36

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 37 of 39 Pageid#: 37
sexual orientation and sex with respect to the exercise of the fundamental right to marry, and their liberty interests in dignity, autonomy, and family integrity and association. Differential treatment with respect to Plaintiffs’ exercise of fundamental rights and liberty interests, based on their sexual orientation and sex, subjects Defendants’ conduct to strict or at least heightened scrutiny, which Defendants’ conduct cannot withstand.
DECLARATORY AND INJUNCTIVE RELIEF 28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure, Rules 57 and 65 119. Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of this complaint as though fully set forth herein. 120. This case presents an actual controversy because Defendants’ present and ongoing denial of equal treatment to Plaintiffs subjects them to serious and immediate harms, warranting the issuance of a declaratory judgment. 121. Named Plaintiffs seek injunctive relief on behalf of themselves and the Plaintiff Class to protect their constitutional rights and avoid the injuries described above. A favorable decision enjoining Defendants would redress and prevent the irreparable injuries to Plaintiffs identified herein, for which Plaintiffs have no adequate remedy at law or in equity. 122. The Commonwealth will incur little to no burden in allowing same-sex couples to marry and in recognizing the valid marriages of same-sex couples from other jurisdictions on the same terms as different-sex couples, whereas the hardship for Plaintiffs of being denied equal treatment is severe, subjecting them to an irreparable denial of their constitutional rights. The balance of hardships thus tips strongly in favor of Plaintiffs.
VII. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:
37

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 38 of 39 Pageid#: 38
A. Declaring that the suit is maintainable as a class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(1) and (2);
B. Declaring that the provisions of and enforcement by Defendants of article 1, section 15-A of the Commonwealth’s Constitution, Virginia Code Annotated § 20-45.2, and any other sources of state law that (1) exclude same-sex couples from marrying, or (2) refuse recognition to the marriages of the Named Plaintiffs and members of the Plaintiff Class who validly married a same-sex spouse in another jurisdiction, violate Plaintiffs’ rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution;
C. Permanently enjoining enforcement by Defendants of article 1, section 15-A of the Commonwealth’s Constitution, Virginia Code Annotated § 20-45.2, and any other sources of state law to exclude same-sex couples from marriage or to refuse recognition to the marriages of same-sex couples validly married in another jurisdiction;
D. Requiring Defendants in their official capacities to permit issuance of marriage licenses to same-sex couples to marry, pursuant to the same restrictions and limitations applicable to different-sex couples’ freedom to marry, and to recognize marriages validly entered into by Plaintiffs;
E. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and
F. Granting such other and further relief as the Court deems just and proper. G. The declaratory and injunctive relief requested in this action is sought against each Defendant; against each Defendant’s officers, employees, and agents; and against all
38

Case 5:13-cv-00077-MFU Document 1 Filed 08/01/13 Page 39 of 39 Pageid#: 39

persons acting in active concert or participation with any Defendant, or under any Defendant’s

supervision, direction, or control.

DATED: August 1, 2013

Respectfully submitted,

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC.

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

/s/

.

Rebecca K. Glenberg (VSB No. 44099)

701 E. Franklin Street, Suite 1412

Richmond, Virginia 23219

Phone: (804) 644-8080

Fax: (804) 649-2733

rglenberg@acluva.org

James D. Esseks* Amanda C. Goad* Joshua A. Block* 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2500 Fax: (212) 549-2650 jesseks@aclu.org agoad@aclu.org jblock@aclu.org

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
Gregory R. Nevins* 730 Peachtree Street, NE, Suite 1070 Atlanta, Georgia 30308 Phone: (404) 897-1880 Fax: (404) 897-1884 gnevins@lambdalegal.org
Tara L. Borelli* 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 Phone: (213) 382-7600 Fax: (213) 351-6050 tborelli@lambdalegal.org

JENNER & BLOCK LLP
Paul M. Smith* Luke C. Platzer* Mark P. Gaber* 1099 New York Avenue, NW Suite 900 Washington, D.C. 20001-4412 Phone: (202) 639-6000 Fax: (202) 639-6066 psmith@jenner.com lplatzer@jenner.com mgaber@jenner.com

* Pro hac vice applications pending

Counsel for Plaintiffs

39

 
 Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 1 of 21 Pageid#: 1375

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION

JOANNE HARRIS, et al., on behalfofthemselves and all others similarly situated,
Plaintiffs,
v.
JANET M. RAINEY,£! al.,
Defendants.

)

)

)

) Civil Action No.: 5:13cv077

)

)

)

) By: Hon. Michael F. Urbanski

)

United States District Judge

)

)

)

MEMORANDUM OPINION

Plaintiffs Joanne Harris, Jessica Duff, Christy Berghoff, and Victoria Kidd brought this suit challenging Virginia's refusal to allow same-sex marriages and its refusal to recognize samesex marriages performed by sister states. Defendants are Janet M. Rainey, in her official capacity as the State Registrar of Vital Records, and Thomas E. Roberts, in his official capacity as the Staunton Circuit Court Clerk. 1 This matter is currently before the court on the plaintiffs' Motion to Certify Class, (Dkt. No. 26), and Motion to Amend Class Definition. (Dkt. No. 79). The court heard argument on the class certification motion on October 29, 2013, and the issue has been extensively briefed by the parties. The question of certification is thus ripe for adjudication.

1 Robert F. McDonnell was originally named as a defendant in his official capacity as the Governor of Virginia; he has been dismissed from the case. (Dkt. No. 95). Roberts has not filed any opposition to the Motion to Amend Class Definition, but it is clear that he opposes class certification. He has "adopt[ed] and incorporate[d]" Rainey's arguments in his pleadings in opposition to the Motion to Certify Class in addition to advancing additional arguments against class certification. See Resp. in Opp'n re Mot. to Certify Class, Dkt. No. 36, at 1-2.

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 2 of 21 Pageid#: 1376
Plaintiffs seek to certify this case as a class action pursuant to Federal Rule of Civil Procedure 23. Plaintiffs originally proposed two subclasses, one representing unmarried samesex couples who wish to wed in Virginia and one representing same-sex couples legally wed out of state who wish to have their marriages recognized by Virginia. See Br. in Supp. re Mot. to Certify Class, Dkt. No. 27, at 4. Plaintiffs have now moved to amend the proposed class definition to the following:
(1) all same-sex couples in Virginia who have not married in another jurisdiction. (2) all same-sex couples in Virginia who have married in another jurisdiction. Mot. to Amend Class Definition, Dkt. No. 79, at 1. The court must therefore consider: (1) whether class certification is appropriate under the facts of the case, and (2) whether leave to amend the proposed class definition is warranted. Because the amended proposed class definition meets the requirements of Rule 23(a) and Rule 23(b)(2), the court will grant the plaintiffs' motions and certify the class. The court will exclude from the class any person who is a plaintiff in the pending case of Bostic v. McDonnell, 2: 13cv00395 (E.D. Va. filed Sept. 18, 2013). The court is required to conduct a "rigorous analysis" to ensure that a proposed class action complies with the requirements set forth in Rule 23. Thom v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 318 (4th Cir. 2006)(citations omitted).2 "To be certified, a proposed class must satisfy Rule 23(a) and one of the three sub-parts of Rule 23(b)." Id.
2 It should be noted at the outset that the merits of plaintiffs' claims are not a relevant consideration at the certification stage. Thom, 445 F.3d at 319 ("The likelihood of the plaintiffs' success on the merits ... is not relevant to the issue of whether certification is proper.").
2

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 3 of 21 Pageid#: 1377
I. Rule 23(a). All class actions must, as an initial matter, satisfy the four requirements of Rule 23(a):
(1) numerosity of parties, (2) commonality of factual or legal issues, (3) typicality of claims and defenses of class representatives, and (4) adequacy of representation. Thom, 445 F.3d at 318 (citations omitted); Fed. R. Civ. P. 23(a). The court must examine each of these factors to ensure compliance with Rule 23(a).
A. Numerosity. For a class to meet the first requirement of Rule 23(a), it must be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(l). "No bright line test exists for determining numerosity and the determination rests on the court's practical judgment in light of the particular facts of the case." Savani v. Wash. Safety Mgmt. Solutions. LLC, No. 1:06-CV02805-MBS, 2012 WL 3757239, at *2 (D.S.C. Aug. 28, 2012) (citing Lott v. Westinghouse Savannah River Co., Inc., 200 F.R.D. 539, 550 (D.S.C. 2000)). Additionally, it is not required that the exact size of a class be established. Indeed, "where general knowledge and common sense would indicate that it is large, the numerosity requirement is satisfied." Mitchell-Tracey v. United Gen. Title Ins. Co., 237 F.R.D. 551, 556 (D. Md. 2006) (citing 6 Alba Conte & Herbert Newberg, Newberg on Class Actions,§ 3:3 (4th ed. 2006)); see also Haywood v. Barnes, 109 F.R.D. 568, 576-77 (E.D.N.C. 1986) (detailing the level of precision required for numerosity to be established). "Plaintiffls] need only make a reasonable estimate of the number of class members." Wiseman v. First Citizens Bank & Trust Co., 212 F.R.D. 482, 486 (W.D.N.C. 2003); see also Fitzgerald v. Schweiker, 538 F. Supp. 992, 1000 (D. Md. 1982) ("Plaintiffs' good faith estimate of the size of the class clearly is sufficient to establish numerosity.").
3

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 4 of 21 Pageid#: 1378
Plaintiffs here ground their good faith estimate on the 2010 United States Census, which reported over 15,000 same-sex households in the Commonwealth. Br. in Supp. re Mot. to Certify Class, Dkt. No. 27, at 5. While defendants question the reliability of the census data cited by plaintiffs, there can be little doubt that the numerosity requirement is satisfied. Defendants' argument is akin to the one rejected by the court in Thomas v. Louisiana-Pacific Corp., 246 F.R.D. 505 (D.S.C. 2007). "Although Defendants contest numerosity, Defendants in substance simply argue Plaintiffs' estimate is incorrect. Even assuming the accuracy of Defendants' estimates, the numerosity requirement is satisfied[.]" Id. at 509. The same is true in this case. Even if the census data is off by an order of magnitude, the numerosity requirement is plainly met. See, e.g., Gunnells v. Healthplan Servs.. Inc., 348 F.3d 417, 425 (4th Cir. 2003) (noting with approval the district court's observation that "1400 employees plus their families" "easily" satisfied Rule 23(a)(l)'s numerosity requirement). Recent experience in Utah makes this point clear. In an article posted on January 8, 2014, CNN reported that "[o]fficials say more than a thousand marriage licenses between gay and lesbian couples were issued in the 17 days between the initial ruling and the high court's Monday order blocking enforcement." Bill Mears, Utah Will Not Recognize Same-Sex Marriages Performed Before High Court Stay, CNN Political Ticker (Jan. 8, 2014, 1:17 PM), http://politicalticker.blogs.cnn.com/2014/0l/08/utahwill-not-recognize-same-sex-marriages-performed-before-high-court-stay/. The 2010 census data, coupled with the actual experience in Utah, amply supports the conclusion that the number of same-sex couples in Virginia seeking to be married under the laws of the Commonwealth far exceeds any number which would be practical for joinder. Plaintiffs' good faith estimate meets the numerosity requirement.
4

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 5 of 21 Pageid#: 1379
B. Commonality. Commonality requires the presence of questions of law or fact common to the class, Fed. R. Civ. P. 23(a)(2), such that "classwide resolution" can be provided "in one stroke." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). It is clear that here, whatever factual nuances may exist among putative class members, the legal relief sought is the same: a declaratory judgment striking down Virginia's laws banning same-sex marriage and a permanent injunction barring their enforcement. No other relief is sought. Such relief rests on identical questions of law and would clearly resolve the claims "classwide" and in "one stroke." The arguments raised by defendants against commonality are really arguments about the ascertainability of the proposed class. See Br. in Opp'n re Mot. to Certify Class, Dkt. No. 30, at 4 (arguing that commonality does not exists because the proposed class is "defined in individualized, subjective terms"). Moreover, this argument is sidestepped by the amended class definition. As such, the court finds that the commonality requirement is met. C. Typicality. Typicality requires that "the claims or defenses of the representative parties [be] typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). "The essence of the typicality requirement is captured by the notion that 'as goes the claim of the named plaintiff, so go the claims of the class."' Deiter v. Microsoft Coro., 436 F.3d 461, 466 (4th Cir. 2006) (citing Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 340 (4th Cir. 1998)). Thus, in pursuing their own case, the representative parties "must simultaneously tend to advance the interests of the absent class members." Id. The typicality requirement tends to merge with that of commonality. Id. (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626, n.20 (1997) and Gen. Tel. Co. ofSw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)). Here, the plaintiffs meetthe
5

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 6 of 21 Pageid#: 1380
typicality requirement for the same reason that they meet the commonality requirement - the relief sought would benefit all class members in an identical manner.
D. Adequacy o(Representation. Finally, adequacy of representation requires that ''the representative parties will fairly and adequately protect the interests of the class." Fed R. Civ. P. 23(a)(4). "The adequacy inquiry ... serves to uncover conflicts of interest between named parties and the class they seek to represent." Monroe v. City of Charlottesville, No. CIV. 3:05CV00074, 2007 WL 2461746, at *2 (W.D. Va. Aug. 27, 2007) (quoting Amchem Prods., 521 U.S. at 625), affd sub nom., Monroe v. City of Charlottesville, Va., 579 F.3d 380 (4th Cir. 2009). This inquiry also tends to merge with the preceding inquiries into commonality and typicality. Id. (citing Amchem Prods., 521 U.S. at 626 n.20). A conflict must be fundamental to defeat adequacy of representation; a conflict is not fundamental when all class members "share common objectives and the same factual and legal positions and have the same interest in establishing the liability of defendants." Ward v. Dixie Nat. Life Ins. Co., 595 F.3d 164, 180 (4th Cir. 2010) (internal alterations omitted) (quoting Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 431 (4th Cir. 2003)); see also Amchem Prods., 521 U.S. at 625 (quoting E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)) ("A class representative must be part of the class and possess the same interest and suffer the same injury as the class members." (internal alterations omitted)). Finally, in addition to inquiring into the named plaintiffs themselves, the adequacy requirement also contemplates the conflicts and competency of class counsel. Amchem Prods., 521 U.S. at 626 n.20 (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)). As with commonality and typicality, the total overlap ofthe relief sought by all plaintiffs demonstrates that the adequacy of representation requirement is met. If either of the named
6

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 7 of 21 Pageid#: 1381
plaintiff couples succeed on the merits of their respective claims, the same injunction would afford identical relief to all members of the respective subclass. Defendants, however, argue that there is a conflict in "litigation theory." Four individual plaintiffs have filed a parallel suit in the Eastern District of Virginia challenging the same Virginia marriage laws: Bostic v. McDonnell, 2:13cv00395 (E.D. Va. filed Sept. 18, 2013). Defendants assert that the "effort[s] of counsel in this case to draft [the Bostic Plaintiffs] into a non-opt out class creates a conflict." Br. in Opp'n re Mot. to Certify Class, Dkt. No. 30, at 5. The crux of defendants' argument appears to be that the proposed class would interfere with the Bostic Plaintiffs' ability to pursue their lawsuit and chosen litigation strategy. Any potential conflict raised by defendants, however, is resolved by simply honoring the Bostic Plaintiffs' request to amend the class definition to exclude them. See Notice ofReq. that Proposed Class Definition be Amended to Exclude Four Indvs., Dkt. No. 38, at 3 (so requesting). Furthermore, plaintiffs do not object to the Bostic Plaintiffs' request. The court will therefore exclude the Bostic Plaintiffs from the class definition. Any potential conflict having been resolved, the named plaintiffs fulfill the requirements to serve as adequate representative parties.
As to class counsel, the exclusion of the Bostic Plaintiffs likewise moots the conflict concerns raised by defendants. As to the competency of counsel, the plaintiffs note that their counsel has had significant experience in the field of civil rights class action lawsuits, particularly those brought on behalf of same-sex couples and gay and lesbian individuals. Br. in Supp. re Mot. to Certify Class, Dkt. Nos. 27, at 11. Defendants do not dispute these qualifications. As such, the court finds that plaintiffs' counsel meet the requirements of Rule 23(a)(4).3
3 For the same reasons, upon consideration of the factors set forth in Rule 23(g), the court further finds that plaintiffs' counsel will fairly and adequately represent the interests of the class.
7

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 8 of 21 Pageid#: 1382
In light of the foregoing reasons, the court finds that each of the four Rule 23(a) requirements is satisfied. II. Rule 23(b)(2).
In addition to meeting the requirements of Rule 23(a), a class must also qualify under one of the three "types" of classes set forth in Rule 23(b). Gray v. Hearst Commc'ns., Inc., 444 F. App'x 698, 700 (4th Cir. 2011) ("[A] proposed class must meet the requirements of both Rule 23(a) and Rule 23(b)."). Plaintiffs seek to pursue their claims as a Rule 23(b)(2) class. Class certification pursuant to Rule 23(b)(2) is appropriate when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). Notwithstanding defendants' objections to the contrary, plaintiffs meet this standard.
Defendants argue that class certification is precluded by the so-called necessity doctrine. Defendants note that "'the vast majority of courts' apply a 'need requirement' to deny class certification for suits seeking declaratory or injunctive relief under Rule 23(b)(2) where 'a class action is not necessary inasmuch as all the class members will benefit from any injunction issued on behalf of a single plaintiff.'" 7AA Charles Alan Wright et al., Federal Practice And Procedure § 1785.2 (3d ed. updated Apr. 2013) (citations omitted) (hereinafter "Wright & Miller"). Defendants further note that some courts have stated that "class certification is particularly unnecessary where, as here, 'the suit is attacking a statute or regulation as being facially unconstitutional."' Mills v. District of Columbia, 266 F.R.D. 20, 22 (D.D.C. 2010) (citing Alliance to End Repression v. Rochford, 565 F.2d 975, 980 (7th Cir. 1977)).
8

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 9 of 21 Pageid#: 1383
The necessity doctrine for class actions is highly unsettled. An "oft-quoted" observation is that "like Newton's law of thermodynamics, for every class denial on the basis oflack of need, one is able to find a decision, or several decisions, often in the same circuit, where other courts have certified Rule 23(b)(2) classes under virtually the same circumstances." 2 William B. Rubenstein, Newberg on Class Actions,§ 4:35 (5th ed. 2013). The necessity doctrine was developed by courts shortly after Rule 23 was enacted in 1966, and many of the authorities applying the doctrine date from the 1970s. Id. Indeed, all but two of the authorities cited by defendants hail from that decade.
Over the last forty years, however, the necessity doctrine has been employed with less frequency. Indeed, many courts "have rejected the necessity doctrine outright as being nontextual, noting that a need requirement finds no support in Rule 23 and, if applied, would entirely negate any proper class certifications under Rule 23(b), a result hardly intended by the Rules Advisory Committee." Id. (collecting cases); cf. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010) ("By its terms [Rule 23] creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.").
The authorities cited by defendants do not dictate a different result. Defendants are correct that the Fourth Circuit stated in Sandford v. R. L. Coleman Realty Co., Inc., 573 F.2d 173 (4th Cir. 1978), that"[s]ince the plaintiffs could receive the same injunctive relief in their individual action as they sought by the filing of their proposed class action, class certification was unnecessary in order to give the plaintiffs the injunctive relief they requested through class certification ...." Id. at 178. But the procedural posture of that case is important. The court of appeals was considering a challenge to both the district court's denial of injunctive relief and its denial of class certification, which the district court had denied as "too late" when it was sought
9

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 10 of 21 Pageid#: 1384
in an amended complaint. Id. at 174. The Fourth Circuit found that "under the circumstances of th[e] case, the claims with reference to class certification and denial of injunctive relief [could] be considered and disposed of together." Id. at 178. The court first granted the injunctive relief sought and then observed that "[w]ith the entry of such relief, any need for class certification disappears." Id. at 179. Thus, the court did not hold that necessity was required for class certification, but merely noted that there was no need for a class where the injunctive relief had already been entered.
The court in Sandford cited Gray v. International Brotherhood of Electrical Workers, 73 F.R.D. 638 (D.D.C. 1977), and quoted the following passage in a footnote:
Insofar as this aspect of the plaintiffs' suit is concerned, then, there exists no need for this case to be certified as a class action. This Court has consistently and emphatically adhered to the view that when, as here, 'the relief being sought can be fashioned in such a way that it will have the same purpose and effect as a class action,' the certification of a class action is unnecessary and inappropriate
Sandford, 573 F.2d at 179 n.9 (quoting Gray, 73 F.R.D. at 640). The Gray decision, however, has met with disfavor in subsequent holdings by the United States District Court for the District of Columbia. See Littlewolfv. Hodel, 681 F. Supp. 929, 937 (D.D.C. 1988) (finding Gray to be "far from dispositive" and finding that "the idea that a class may be certified only if 'necessary' flies in the face of the Federal Rules"), affd sub nom., Littlewolfv. Lujan, 877 F.2d 1058 (D.C. Cir. 1989); see also Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9, 23 (D.D.C. 2006) (likewise rejecting the necessity inquiry in class certification). Indeed, in a case cited by defendants, the court acknowledged that "establishing need is not a mandatory prerequisite," but instead a factor "not uncommon[ly]" used by courts "in exercising their discretion, to deny class certification on that basis when the particular facts
10

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 11 of 21 Pageid#: 1385
and circumstances of the case warrant doing so." Mills v. District of Columbi!!, 266 F.R.D. 20, 22 (D.D.C. 2010).
Similarly, the other Fourth Circuit case cited by defendants is one in which a district court (sitting as three judge panel) exercised its discretion in declining to certify a class. See Doe v. Commonwealth's Attorney for City of Richmond, 403 F. Supp. 1199, 1200 n.l (E.D. Va. 1975) (finding that the "prosecution of separate actions by or against individual members of the alleged classes would not create a risk of inconsistent or varying adjudications" and "therefore[ ] the benefits which would justify proceeding as a class action will be realized without resort to th[at] procedure"). Indeed, all but one of the remaining authorities cited by defendants are either
district courts exercising such discretion or appellate courts upholding the exercise of that discretion. See Galvan v. Levine, 490 F.2d 1255, 1262 (2d Cir. 1973) (holding that since class action designation was unnecessary to award injunctive relief, refusal of certification by the district court was permissible); Thomas v. Weinberger, 384 F. Supp. 540, 543 (S.D.N.Y. 1974) (district court declining to certify class where class action status was unnecessary) (citing, inter alia, Galvan); cf. Wright & Miller § 1785.2 (noting that the vast majority of courts accept necessity as an appropriate consideration in the exercise of discretion to certify a class action). But cf. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 400 (2010) ("The discretion suggested by Rule 23's 'may' is discretion residing in the plaintiff[.]").4 It is therefore not accurate to characterize these authorities as holding that a lack of necessity
4 The sole remaining authority cited by defendants, the Seventh's Circuit decision in Alliance to End Repression v. Rochford, 565 F.2d 975 (7th Cir. 1977), does not suggest that the Seventh Circuit has imposed a need requirement, as is evident from subsequent decisions. See. e.g., Brown v. Scott, 602 F.2d 791, 795 (7th Cir. 1979) ("In a number of cases this court has held that ifthe requirements of Rule 23 are satisfied class certification should not be refused because oflack of need."); Gammon v. GC Services Ltd. Partnership, 162 F.R.D. 313, 320 (N.D. Ill. 1995) ("It is well-settled in the Seventh Circuit, however, that a motion for class certification will not be denied merely because certification is not necessary."); Borowski v. City of Burbank, 101 F.R.D. 59, 62 (N.D. Ill. 1984) ("Rochford does not represent the law of this Circuit and has not been followed for the proposition[] [that class certification should be denied when there is no need for class action].").
11

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 12 of 21 Pageid#: 1386
disallows class certification; instead, they reflect that a denial of certification under such circumstances is not an abuse of discretion.
Finally, even those courts which do adhere to the necessity doctrine accept that possible mootness provides sufficient reason to certify a class. See 2 William B. Rubenstein, Newberg on Class Actions,§ 4:35 (5th ed. 2013) (citing Casale v. Kelly, 257 F.R.D. 396, 406-07 (S.D.N.Y. 2009)). Plaintiffs have raised mootness as a possible issue should any of the named plaintiffs have a change in personal circumstances. Indeed, a romantic break-up, a death, or an out-ofstate move could moot the claims of either of the named same-sex couples; certifying the class would avoid the resultant waste ofjudicial resources if the claims of a named plaintiff were to become moot. In Arizona Officials for English v. Arizon~ 520 U.S. 43 (1997), the Supreme Court noted that mootness concerns could have been avoided had the plaintiff in that case sought class certification instead of merely proceeding as an individual. Id. at 72 n.27. Thus, even application of the necessity doctrine would not foreclose class certification in this case due to mootness concerns.
Most convincing, however, are the affirmative statements by the Supreme Court and the Fourth Circuit that suits brought for injunctive relief alleging civil rights violations are precisely the type of suit for which Rule 23(b)(2) was intended to provide class certification. See Amchem Prods.. Inc. v. Windsor, 521 U.S. 591, 614 (1997) (citations omitted) ("Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples [of when class certification is proper under Rule 23(b)(2)]."); Thom v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 330 (4th Cir. 2006) ("The twin requirements of Rule 23(b)(2)- that the defendant acted on grounds applicable to the class and that the plaintiff seeks predominantly injunctive or declaratory relief - make that Rule particularly suited for class actions alleging racial
12

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 13 of 21 Pageid#: 1387
discrimination and seeking a court order putting an end to that discrimination."); id. at 330 n.24
("Indeed, Rule 23(b)(2) was created to facilitate civil rights class actions" (citations omitted));
see also Wright & Miller§ 1775 ("[S]ubdivision (b)(2) was added to Rule 23 in 1966 primarily
to facilitate the bringing of class actions in the civil-rights area."); id. § 1776.1 (noting that "Rule
23(b)(2) has been utilized to protect a variety of constitutional rights" including "actions
challenging various statutes on equal-protection grounds"). Without addressing the merits of
plaintiffs' claims, it is clear that they allege just such a class-wide violation of civil rights. Thus,
the amended proposed class falls within the scope of classes contemplated by Rule 23(b)(2).
Roberts puts forward one additional argument against class certification - that it should
be denied because the plaintiffs have failed to demonstrate that he, Roberts, acted or refused to
act on grounds that apply generally to the entire class. Roberts notes that his actions (or
inactions) as to various components of the class vary:
Roberts neither acted or refused to act on grounds affecting samesex couples who theoretically and subjectively might want to get married AND otherwise qualify for a marriage license AND wish to apply for a marriage license in the City of Staunton as opposed to their own locality, as there has been no act or omission by Roberts or injury sustained by such an unascertainable class. Finally, Roberts neither acted or refused to act on grounds affecting individuals who were validly married in other jurisdictions and desire recognition in Virginia as he has no authority or control over Virginia's "recognition" of same sex marriages nor has he had or will he have in the future any official involvement on this issue with individuals who are already married.
Resp. in Opp'n to Mot. to Certify Class, Dkt. No. 36, at 2.
Roberts' argument misses the point. Certification is appropriate pursuant to Rule
23(b)(2) when the defendant "acted or refused to act on grounds that apply generally to the entire class." Fed R. Civ. P. 23(b)(2). The "generally applicable" language signifies "that the party
13

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 14 of 21 Pageid#: 1388
opposing the class does not have to act directly against each member of the class." Wright & Miller§ 1775. Instead, "[t]he key is whether the party's actions would affect all persons similarly situated so that those acts apply generally to the whole class." Id.; see also Fed. R. Civ. P. 23, Advisory Committee Note to 1966 Amendment of Subdivision (b)(2) ("Action or inaction is directed to a class within the meaning of [Rule 23(b)(2)] even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class."). As such, the relevant inquiry is whether the grounds for Roberts' action or inaction are applicable to the putative class as a whole. The challenged provisions of Virginia law direct Roberts to withhold a marriage license to all members of the first subsection of the amended proposed class on the same grounds: status as a same-sex couple. 5 Any of the putative subclass members would receive the same treatment from Roberts (the denial of their marriage application) for the same reason (being a same-sex couple). As such, Rule 23(b)(2) is plainly satisfied. III. Class Definition.
Defendants objected to the plaintiffs' initial proposed class definition. Although the plaintiffs maintain that their original proposed definition was valid, they have moved to amend the proposed class. Plaintiffs' amended proposed class definition is as follows:
(1) all same-sex couples in Virginia who have not married in another jurisdiction. (2) all same-sex couples in Virginia who have married in another jurisdiction. Mot. to Amend Class Definition, Dkt. No. 79, at 1. Plaintiffs' motion to amend the class definition is functionally a motion to amend Section V of their Complaint. See Compl. ~ 74, Dkt. No. 1, at 27 (stating the original proposed class definition). A party may move for leave to
5 Only the first of the two proposed subclasses asserts claims against Roberts - same-sex couples who are not married.
14

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 15 of 21 Pageid#: 1389
amend its pleadings and the court "should freely give leave [to do so] whenjustice so requires." Fed. R. Civ. P. 15(a)(2). Indeed, "[l]eave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile." Balas v. Huntington Ingalls Indus.. Inc., 711 F.3d 401, 409 (4th Cir. 2013) (emphasis original) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999)).
Rainey6 acknowledges this liberal standard, see Resp. in Opp'n re Mot. to Amend Class Definition, Dkt. No. 83, at 1, but insists that the amendment should be denied as futile because the amended proposed class definition is not ascertainable and not cohesive. Rainey' s futility argument fails because the amended proposed class is both ascertainable and cohesive.
A. The amended proposed class definition is objectively ascertainable. "In addition to the requirements set out by Rule 23, there is an implied requirement that the proposed class be ascertainable." Rhodes v. E.I. du Pont de Nemours & Co., 253 F.R.D. 365, 370 (S.D.W. Va. 2008) (citing Roman v. ESB. Inc., 550 F.2d 1343, 1348 (4th Cir. 1976)); cf. Coleman v. Union Carbide Corp., No. CIV.A. 2:11-0366, 2013 WL 5461855, at *21 (S.D.W. Va. Sept. 30, 2013) (noting that "the long-implicit concept of ascertainability" was incorporated into Rule 23 itself through the text of Rule 23(c)(l)(B), which provides that "[a]n order that certifies a class action must define the class ...."). A class must be ascertainable in order to ensure that compliance with an unfavorable judgment can be achieved with reasonable effort, without resorting to individualized fact-finding. See Romberio v. Unumprovident Corp., 385 F. App'x 423, 431 (6th Cir. 2009) (collecting authorities) (holding that the need for individualized fact-finding renders a class definition unsatisfactory); see also Walewski v. Zenimax Media, Inc., 502 F. App'x 857, 861 (1 lth Cir. 2012) (holding that the district court did
6 Roberts has not filed any formal response to plaintiffs' motion to amend class definition.
15

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 16 of 21 Pageid#: 1390
not abuse its discretion by rejecting the proposed class as not adequately defined or clearly
ascertainable where there was no workable method for identifying the members of the proposed
class).
Ascertainability serves several critical purposes including: 1) ensuring that class members can be identified in an administratively efficient manner compatible with the goals of class action treatment; 2) providing the "best notice practicable" to protect the interests of absent class members; and 3) allowing adequate opportunity for defendants to protect themselves by confirming that those bound by the class proceedings are easily identifiable. It is not necessary that every class member actually be identified prior to class certification, but the class plaintiff must clearly establish that there is a method by which class membership could be clearly ascertained.
Brooks v. GAF Materials Corp., No. 8:11-CV-00983-JMC, 2012 WL 5195982, at *3 (D.S.C.
Oct. 19, 2012) (internal citations omitted). The first and third purposes set forth in Brooks are at issue here. 7 Rainey first argues that the amended proposed class definition fails because
"whether any particular person is presently a member of a same-sex 'couple' in Virginia is a
matter beyond any objective ascertainment." Id. at 2.
Contrary to this argument, if plaintiffs are successful here, defendants shall have no
difficulty identifying the members of the class. Two people - a couple - of the same sex will
apply for a marriage license. Or, two people of the same sex married in another jurisdiction will
seek recognition of their marriage. If plaintiffs prevail, defendants shall not be permitted to deny
such an application or such recognition solely on the basis that the couple is of the same sex.
Thus, determining to whom the judgment applies and how to implement such a judgment would
be simple. On the other hand, if defendants prevail, they have not articulated any realistic risk of
7 Because this is a Rule 23(b)(2) class, concerns regarding notice do not apply. "Unlike Rule 23(b)(3), Rule 23(b)(2) neither requires that absent class members be given notice of class certification nor allows class members the opportunity to opt-out of the class action." Thom v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 330 n.25 (4th Cir. 2006). Rule 23(b)(2) does not require notice because the rights of the absent class members are indirectly protected by the requirement that the relief being sought be predominantly injunctive or declaratory. Id.
16

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 17 of 21 Pageid#: 1391
future suits advancing identical claims against them, whether those suits would be barred by res judicata or the precedential effects of their favorable judgment. The court does not have concerns about fashioning a judgment that complies with Rule 23(c)(3)(A), which requires that, whether or not favorable to the class, the final judgment "include and describe those whom the court finds to be class members." Fed. R. Civ. P. 23(c)(3)(A). As such, the amended proposed class definition meets the requirement that the class members be identifiable in an administratively efficient manner and affords adequate opportunity for defendants to protect themselves by confirming that those bound by the class proceedings are easily identifiable.
This case is thus distinguishable from those cited by Rainey, where defendants would have been unable to reasonably determine the appropriate relief to bestow upon successful plaintiffs. In Rahman v. Chertoff, 530 F.3d 622 (7th Cir. 2008), the Seventh Circuit rejected a class for a litany of reasons, but noted in particular that if the plaintiffs prevailed, "framing relief [was] apt to require person-specific decisions." Id. at 626. Additionally, such relief would have required an inquiry into state secrets to which the court would not have access. Id. at 625. No such problems are present here. Moreover, the Rahman court expressly distinguished its disapproval of the proposed class before it from the class contemplated by the Advisory Committee Notes to Rule 23(b)(2). The Rahman court observed that "[a] class of 'all current and future employees of Corporation D' (which is said to discriminate on account of race) - the sort of class to which the Committee Note refers - is more concrete than the [disproved class at issue]. Its members could be enumerated eventually." Id. at 626. The members of the putative class here could be enumerated in the simple manner described above - those same-sex couples who apply for a marriage license or seek recognition of an out-of-state marriage.
17

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 18 of 21 Pageid#: 1392
Similarly, in Jamie S. v. Milwaukee Public Schools, 668 F.3d 481, 496 (7th Cir. 2012), the court declined to certify a class of children with learning disabilities that had not been identified for evaluation for special education. In doing so, the court noted that "identifying disabled students who might be eligible for special-education services is a complex, highly individualized task, and cannot be reduced to the application of a set of simple, objective criteria .... a class of unidentified but potentially [special education]-eligible disabled students is inherently too indefinite to be certified." Id. at 496. No such highly individualized task would be required for the class proposed here.
Furthermore, Rainey's assertion that the class is defective because "[w]hether or not any two people of the same sex in Virginia are a 'couple' depends entirely upon a subjective standard, i.e., each individual's state of mind regarding another person's relational status," Resp. in Opp'n re Mot. to Amend Class Definition, Dkt. No. 83, at 2, is not apt. Here, observable and objective actions determine whether couples fall within the class definition by virtue of their application for a marriage license or request for recognition of an out-of-state marriage. In this context, the definition of couple is sufficiently clear and ascertainable.
In sum, the amended proposed class definition will not require any individualized factfinding, nor is it based on unknowable or unascertainable information. As such, it meets the requirement of ascertainability.
B. The amended proposed class definition is cohesive. Rainey also argues that the Proposed Amended Class is not cohesive as there is no evidence that all, or even most, same-sex couples in Virginia want to marry. Rainey argues that the 2010 census data cited by plaintiffs in establishing numerosity is flawed and further that the Pew Research Center survey cited by plaintiffs "cannot purport to reflect the percentage of samesex couples in Virginia that are married under the laws of another jurisdiction or desire to marry each
18

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 19 of 21 Pageid#: 1393
other in Virginia." Resp. in Opp'n re Mot. to Amend Class Definition, Dkt. No. 79, at 6. Because, Rainey asserts, plaintiffs have failed "to provide a non-speculative basis for concluding that even the majority of 'same-sex couples in Virginia' share a common legal interest in this litigation," the amended proposed class is "fundamentally non-cohesive." Id. This argument misapprehends the requirements for class cohesiveness.
All members of a class "need not be aggrieved by or desire to challenge [the] defendant[s'] conduct in order for some of them to seek relief under Rule 23(b)(2)." Wright & Miller§ 1775. As such, ''the plaintiffs do not need to establish that [the] defendants' conduct is damaging or offensive to every member of the proposed class." Kernan v. Holiday Universal. Inc., No. JH90-971, 1990 WL 289505, at *5 (D. Md. Aug. 14, 1990) (citing Hess v. Hughes, 500 F. Supp. 1054, 1061-62 (D. Md. 1980)). Rainey's argument that the plaintiffs have not shown that all or most same-sex couples in Virginia wish to marry is therefore beside the point. Such a showing is nowhere required in Rule 23, or in the applicable case law.
There is no issue as to class cohesiveness. The Fourth Circuit has expressly stated that "Rule 23(b)(2)'s categorical exclusion of class actions seeking primarily monetary relief ... ensures that the class is sufficiently cohesive [such] that the class-action device is properly employed." Thom v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 330 (4th Cir. 2006) (emphasis added). There is no potential here for confronting individualized injuries resulting in divergent interests among class members, the hallmark of a non-cohesive class. The alleged injury suffered by the putative class members here is identical. As the Fourth Circuit has explained, when determining the remedy in a Rule 23(b)(2) class action, the focus is not on the harm suffered by the individual plaintiffs, but on "the defendant's actions affecting the class as a whole." Id. (emphasis original). Here, defendants' enforcement of the challenged laws impacts
19

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 20 of 21 Pageid#: 1394
the amended proposed class as a whole. As such, it cannot be maintained that class cohesion is lacking.
None of the authorities cited by Rainey indicate otherwise. It is true that courts have observed that the certification requirements under Rule 23(b)(2) are particularly stringent as to cohesiveness. See, e.g., Gates v. Rohm & Haas Co., 655 F.3d 255, 264 n.12 (3d Cir. 2011). However, in conformity with the Fourth Circuit's view, the emphasis of the inquiry is on the nature of the relief sought. "The key to the [Rule23](b)(2) class is 'the indivisible nature of the injunctive or declaratory remedy warranted-the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.'" Id. at 264 (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2557 (2011)); see also Shook v. Bd. ofCnty. Comm'rs of Cnty. of El Paso, 543 F.3d 597, 604 (10th Cir. 2008) ("The latter half of Rule 23(b)(2) requires that final injunctive reliefbe appropriate for the class as a whole . . . . and we have interpreted the rule to require that a class must be 'amenable to uniform group remedies.'" (emphasis original)). There can be no dispute that the injunctive relief sought by the plaintiffs here would either apply to the amended proposed class (or subclass) as a whole or not at all - the nature of the relief sought is indivisible among the putative class members. Put simply, the entire class wins or the entire c,lass loses. This is the very definition of a cohesive class. 8
..
8 In contrast stand proposed class action suits seeking medical monitoring following exposure to environmental toxins. Issues with class cohesion in Rule 23(b)(2) cases frequently arise in that context, where the injunctive remedy sought must often be individualized based on the exposure level and medical history of the class members. See generally Rhodes v. E.I. du Pont de Nemours & Co., 253 F.R.D. 365, 371-72 (S.D.W. Va. 2008) (discussing the cohesiveness requirement of Rule 23(b)(2) and the issues medical monitoring classes face in meeting this requirement); see also Coleman v. Union Carbide Corp., No. CIV.A. 2:11-0366, 2013 WL 5461855, at *19-21 (S.D.W. Va. Sept. 30, 2013) (discussing Rhodes on this issue). No such individualized issues apply here.
20

Case 5:13-cv-00077-MFU-RSB Document 115 Filed 01/31/14 Page 21 of 21 Pageid#: 1395

C. The amended proposed class will be further amended to exclude the Bostic Plaintiffs.

Pursuant to the Notice of Request filed by the Bostic Plaintiffs asking to be excluded

from the certified class, to which plaintiffs do not object, and to resolve the potential for conflict

in litigation strategy between the two cases, the amended proposed class will be further modified

by adding the following provision:

No person who is a plaintiff in Bostic v. McDonnell, 2:13cv00395 (E.D. Va. filed Sept. 18, 2013), currently pending before the United States District Court for the Eastern District of Virginia, is included in the class, or either subclass.

IV. Conclusion.

In sum, the amended proposed class, as further modified by the exclusion of the Bostic

Plaintiffs, meets the requirements of numerosity, commonality, typicality, and adequacy of

representation as set forth in Rule 23(a). Furthermore, the amended proposed class seeks

injunctive relief that, if granted, would be appropriate respecting the class (or subclass) as a

whole. As such, the requirements of Rule 23(b)(2) are also met. Permitting the plaintiffs to

amend their original proposed class definition would therefore not be futile. Accordingly, the

court will enter an appropriate order this day granting plaintiffs' motions and certifying the class.

The clerk is directed to send a copy of this Memorandum Opinion to all counsel of

record.

u..,..,,. Entered: January 31, 2014
t.l~•J..I f.
~~~~~~~-~~,,,,.---­ Michael F. Urbanski
United States District Judge

21

 
 Case 5:13-cv-00077-MFU-RSB Document 137 Filed 03/31/14 Page 1 of 5 Pageid#: 2052

IN TH E UN ITED STATESDISTRIG COURT FO R TH E W ESTERN D ISTRICT OF W RGIN G
H ARR ISO N BU R G D IW SIO N

- - '- o- loEus.DIsT = ur
AT- K ;BuRqW
FlIFn
21ù
JULA . , R

JOAN NE H ARRIS,#.1g-k,
on behalfofé em selvesazJl
allothers.çzirzb z'i.rsituateA
Plaintiffs,

CivilA ction N o.:5:13cv00077

V.
JANET M .RAINEY,#.1p-ky
D efendants.

By:H on.M ichaelF.U rbanski
UnitedStatesD istrictJudge

M E M O RAN D U M O PIN ION O n M atch 10,2014,theFolztth CitcuitCourtofA ppealsgtanted them odon ofplaindffsin
thiscase,JoanneHarris,JessicaDuff,CluistyBerghoff,andVictoriaIiidd,tointerveneontheside oftheplaindffs-appelleesandftlesepatatebriefsinBosticv.Schaefer.eta1,No.14-1167(L).That
caseiscturentlypzoceeding on an expedited basisand issetto beheatd on theM ay12-15,2014, atgum entcalendat.
Atthe statusconferenceheld in thiscaseon Febrtmry19,2014,plaindffsindicated thattheit m ain goalwasto havetlleirday in couttand to beheatd on tlaeim pottantissuestaisedin thiscase on thesam escheduleastheBosdccase.A saresultoftheFoutth Citcuit'sO tderofM atch 10, 2014,allow ing plainéffstointervenein theBosdcappeal,plaindffshavethatoppottunity.Because ofthisseism icproceduraldevelopm ent,theconsdtudonalissuein thiscaseisnow itzthehandsof theFotuth CircuitCouttofAppeals.AstheFoutth Circuit'sim pending decision isbinding,the com tw illstaytlliscasependingthatdecision.

Case 5:13-cv-00077-MFU-RSB Document 137 Filed 03/31/14 Page 2 of 5 Pageid#: 2053

In addidon to plaintiffs'intervention in theBosdcappeal,anothetaspectofthe anom alousptoceduralpostureofthiscasecotm selsthecouttto exetciserestraintin iss'ling am'ling

atthistim e.Thatisbecausethereisnolongeranypattyitzthiscaseadvocating thatVirp'm'a'ssam e-

sex m

arriage and

civl'lunion

ban

is

consdtudonal.1In

other w

ords ,

the

debate in

thiscotutis

deddedly one-sided.

AttlaeFebtuaty 19,2014 stat'usconfetence,thepardesaddiessed tlle com t'sptudential

concern ofdeciding an im pottantciviltightscasein apostutew hereno partyw asadvocadng that

Vitgt'm'a'ssam e-sex m atriageand civill'nion ban isconstitudonal.N oting theproblem ofthelack of

adversityin tlliscase,thepaldessuggested thatthe cotutconsidetappoindng an am icuscmiaeto

argaethattheban isconstim donal,otaltem advely,thatthe courtrely on tlaenow abandoned inidal

btiefsflled byRaineyand Robetts.N eithetalternativeissatisfactory.Fitst,appointing an am icus

ctuiaetodefendthelaw scalm otbeaccom plished bythetim etheFotuth Circuithearsthiscasein

eatly M ay.BecausetheFolztth Circuithasdecided to takeup theBosdccaseon an expeditedbasis,

itisim ptacdcalforthecourtto requestthatan am icuscutiaedevotethefim eandundertakethe

expenseto weigh in on an issuealteady scheduledto beheazd in shortordetbyahighetcourt.

Second,asto theearlietbriefs,itisdifficultfotthecolzttto payagreatdealofctedenceto theprior

legalargum entssuppordng thechallengedlawswhen thepardesw ho ftled them havethem selves

abandoned thoseargm nents.

AstheSuptemeColzrtstatedlasttet'm inUnitedStatesv.W indsot,133S.Ct.2675(2013),

ffgejvenwhenAtdcleIIIpetmitstheexetciseoffedetaljurisdicdon,prudendalconsideradons
dem and thattheCourtinsistupon fthatconcteteadversenesswllich sharpensthepresentadon of

1W hiledefendantlanetM.Rainey,theStateRegisttarofVitalRecords,originallyatguedthatVirginia'ssame-sex mazziagebanwasconsdttztional,hetposidonchangedfollowingtheJanuazy,2014decisionbyVirginia'sAttorney
G enetalnotto defend theban.Thom asE.Roberts,theClerk oftheStatm ton CircuitCouu,likewisehasretreated from
suppordrlgthelaw sandnow takesnoposidonon theirconsdtutionality.'l'bisscenario contraststatherstarklyfrom the
Bosdccase,wheletlleNozfolkCletkofCourtcontinuestoadvocatefozthebln'sconstittdonalityandluqsbeenjoined
illthatdefensebytheitzterveningPtinceW illiam CountyCletkofCourt.

Case 5:13-cv-00077-MFU-RSB Document 137 Filed 03/31/14 Page 3 of 5 Pageid#: 2054
issuesupon wlaich thecolzrtso latgely dependsfotillum inadon ofdifficultconstittzdonal
quesdons.'''J.Z at2687(quotingBaketv-.Catt,369U.S.186,204(1962)).MuchliketheAttomey
G eneralofVitgm'iahasdonein thiscaseasregardsthecho enged Virginialaw s,inW indsorthe
Presidentagreedwitlltheposidon takenbyEdifh W indsorandinstructedtheD epartm entofJusdce
notto defend thesecdon oftheD efenseofM attiageA ctatissueitAthatcase.TheW indsotCotut
noted tlmt
FjheExecudve'sagreementwithW indsor'slegalargumenttaisesthe
risk thatinstead ofa teal,eatnest and vitalconttovetsy,the Cotut facesa friendly,non-advetsary,proceeaing in which apattybeaten in the legislatute seeks to ttansfer to the courts an inqut'ry as to the consdtazdonalityofthelegislaéveact.
J.tl,(intemalquotadonmarksandaltetadonsomitted)(quodngAshwandetv.TVA,297U.S.288, 346(1936)mtandeis,J.,concvutingl).2ThechangeinlegalpositionsbyRqineyandRobettsandtlae
resultinglack ofanyadvocatefotthechallengedlaws'consdtazdonalitym akestherisk in W indsora
realityhete. O n thisissue ofconsdtaztionalsignifcancewhich hasengendeted som uch spitited
publicdebate,thecouttm ustKV siston ...them ostcom m ittedandvigorousadversaryatgum ents
toinform thenzlingsofthecoutts.''Hollin sworthv.Per ,133S.Ct.2652,2674-75(2013) (Kennedy,J.,clissentingl(commendngontheptuposeofjusdciabilityprinciplesinthecontextof ArdcleIIlstancling).Suchadversityisplqinlylackinghete.
TheSuprem eCourthasf'longtecogm'zed thatcottrtshaveinhetentpow erto stay
ptoceedingsand <to controlthedisposition ofthecauseson itsdocketwith econom yoftim eand
effortforitself,forcounsel,andforlitkants.'''Stonev.I.N.S.,514U.S.386,411(1995)(quoting Landisv.N.Am.Co.,299U.S.248,254(1936)).Indeed,theFourthCircuithasfoundthatadisttict
2Ultim ately,theCotutin W indsorfotmd theseprudendalstandm'g concem ssadsfedi.nthatcasebytheparticipadonof theBipardsan LegalAcéon G roup,which intervened atthedistzctcouttasan interestedpartyand pardcipated thtoughouttheappealsprocess.In contzast,noonehasintervenedinthiscase.M oteover,theW indsorCouttwas concem ed abouttheextensivelitigadon thatw ouldensueifitdeclinedto hearthatcaseand theproblem sassociated with theresultinglack ofprecedentialguidance.Thatconcern isabsenthereastheidenticalissueraisedin tbiscaseis beforetheFourth Circuitonexpeditedreview.

Case 5:13-cv-00077-MFU-RSB Document 137 Filed 03/31/14 Page 4 of 5 Pageid#: 2055
colzrtmay,initsdiscredon,stayacivilmattetpenaingadecisionfrom ahkhetcolzrtthatcould conttoltheoutcom e.SeeH ickeyv.Baxter,833F.2d1005,1987W L39020,at*1(4thCit.1987) (tmpublishedtabledecision)(<<W efmdtlutthedisttictcourtactedwithinitsdisctedoninstaym'g
proceedingswhileaw aidngguidancefrom theSuprem eCouttin acasethatcolzld deciderelevant
issues.'').W hileitisttazethatastayofacivilcaseshouldbetmdettakenonlyitzexttaotdinary cizcumstances,thiscaseptesentsjustsuchcitcllmstancesasisevidentftom tlaeplointiffs'
intervenûon in theBosdcappealand thelack ofany opposition to plqinéffs'position thatthe sqm e-
sexm arriageandcivilllnionbanisunconsdtazdonal.N oristhereanyprejudiceto theplaindffsby
staying thism atter.BecausetheFourt.h Circuithasgranted plaindffs'm odon to intervenein the
Bosdcappeal,theywillnotbeforcedtodfstandaside''whileanothergtoupoflitkantsffsetdesthe ruleoflaw thatwilldefmethetkhtsofboth.''Landis,299U.S.at255.Havingintetvenedattlle
Fourth Circtzit,plaindffsnow haveavoicein thedebatepending atthecouttofappeals. Thecouttview stheintervention ofplaindffsinto theBosticFoutth Citcuitappealto be a
ptoceduralgame-changet/andtheabsenceofanyopposidontotheposidonadvocatedbythe
plaindffsin tlliscasecom pelsthecolzrtto exerciseresttaint.In shott,the colzttdoesnotbelieveit
tobepm dentorintheinterestsofjusdcetoissueanopinioninasettingwhereonlyoneside's
argum entsateforceflTllypressed.TheFotuth Citcuit,how ever,willhavethebenefitofplaindffs'
argumentsandavkorousdefensetoinform theissuesitmustdecideinthependingappeal.Based
on plaindffs'intetvention in thependingappealin Bosdcand concernsoverprudendalstanding,the cottrtwillstay tlzism atteruntiltheFourth Circlzitrules.An approptiateO rderwillbeenteredthis day.
3N ow thattheplaindffsin tlliscasehaveinserted them selvesintotheBosdclidgadon and thatcaseispending onan expeditedbasisattheFouuh Cizcuit,theconsidetationscom pellingthecotutto deny defendants'm odon to ttansfetoz
staytlliscasewhenitwasraisedattheoutsetofthislittkationarenolongerapplicable.O kt.No.67).
4

Case 5:13-cv-00077-MFU-RSB Document 137 Filed 03/31/14 Page 5 of 5 Pageid#: 2056 The Clerkisdirected to send acopyofthisO tderto allcounselofrecord. Entered:M arch 31,2014
/+/.m 4a .J f Awc
M ichaelF.Urbanski U nited StatesD istrictJudge
5

 
 Case 5:13-cv-00077-MFU-RSB Document 95 Filed 12/23/13 Page 1 of 1 Pageid#: 1160

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION

JOANNE HARRIS, et al., on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
ROBERT F. MCDONNELL, et al.,
Defendants.

)

)

)

) Civil Action No.: 5:13cv077

)

)

)

) By: Hon. Michael F. Urbanski

)

United States District Judge

)

)

)

ORDER

In accordance with the Memorandum Opinion entered this day, it is hereby ORDERED as follows:
1. The Motion to Dismiss Governor McDonnell on Sovereign Immunity Grounds (Dkt. No. 24) is GRANTED.
2. Defendant Roberts’ Motion to Dismiss (Dkt. No. 32) is DENIED.
The Clerk is directed to send a copy of this Order to all counsel of record. Entered: December 23, 2013
/s/ Michael F. Urbanski
Michael F. Urbanski United States District Judge

 
 Case 5:13-cv-00077-MFU-RSB Document 149 Filed 11/14/14 Page 1 of 5 Pageid#: 2138

In the United States District Court For the Western District of Virginia
Harrisonburg Division

JOANNE HARRIS and JESSICA DUFF, and CHRISTY BERGHOFF and VICTORIA KIDD, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
JANET M. RAINEY, in her official capacity as State Registrar of Vital Records; THOMAS E. ROBERTS, in his official capacity as Staunton Circuit Court Clerk,
Defendants.

No. 5:13-cv-00077

CONSENT MOTION TO SUSPEND BRIEFING AND ORAL ARGUMENT IN CONTEMPLATION OF STIPULATION OF DISMISSAL
The plaintiffs (the “Harris class”), by counsel, respectfully request that the Court suspend briefing and oral argument on Plaintiffs’ Motion to Lift the Stay and Enter Judgment and Defendants’ Motions to Dismiss. In support of this Motion, plaintiffs state as follows:
1. On March 31, 2014, the Court stayed proceedings in this case pending the decision of the U.S. Court of Appeals for the Fourth Circuit in Bostic v. Schaefer, No. 14-1167 (“Bostic”), in which appeal the Harris class had intervened. (Dkt. #138.) On July 28, 2014, the Fourth Circuit ruled in favor of the appellees and the Harris class, holding that Virginia’s laws prohibiting the marriage of same-sex couples, and the recognition of such marriages from other jurisdictions, were unconstitutional. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014). On August 20, 2014, the U.S. Supreme Court stayed the Fourth Circuit mandate in Bostic pending the

1

Case 5:13-cv-00077-MFU-RSB Document 149 Filed 11/14/14 Page 2 of 5 Pageid#: 2139
disposition of any petitions for certiorari. McQuigg v. Bostic, 189 L.Ed.2d 884 (2014). On October 6, 2014, the Supreme Court denied all three petitions for certiorari filed in the case. Schaefer v. Bostic, 83 U.S.L.W. 3189 (2014); McQuigg v. Bostic, 83 U.S.L.W. 3189 (2014); Rainey v. Bostic, 2014 83 U.S.L.W. 3189 (2014). The Fourth Circuit mandate issued the same day.
2. On October 16, 2014, the Harris class filed a Motion to Lift the Stay and Enter Judgment in this Court. (Dkt. #140.) On October 29, 2014, defendant Roberts and defendant Rainey each filed a Motion to Dismiss (Dkt. #142, 144), and a brief in support of their Motions to Dismiss and in opposition to the Harris class’s Motion to Lift the Stay and Enter Judgment (Dkt. #143, 145.)
3. On November 11, 2014, this Court granted a consent motion to extend the time for plaintiffs to file a consolidated reply in support of their motion and response to defendants’ cross-motions until November 19, 2014.
4. Oral argument on both motions is currently scheduled for December 11, 2014. 5. Counsel for the Harrisclass and for Rainey have since conferred in a good faith effort to resolve all remaining claims by the Harrisclass in this case and in Bostic, including any outstanding claims against Defendant Roberts. Acknowledging further the legal costs and expense associated with litigating these issues, Rainey and the Harris class have agreed to resolve their differences through a proposed Consent Order to be submitted to Judge Wright Allen in Bostic v. Rainey, No. 2:13cv395 (E.D.Va.). A copy of that proposed Consent Order is attached as Exhibit A.
2

Case 5:13-cv-00077-MFU-RSB Document 149 Filed 11/14/14 Page 3 of 5 Pageid#: 2140 6. Counsel for the Harris Class and Rainey intend to submit the proposed Consent
Order to Judge Wright Allen. Once the Consent Order is entered in Bostic, the parties intend to submit to this Court a stipulation of dismissal pursuant to Federal Rule of Civil Procedure 41(b).
7. In the event that the Consent Order is denied in Bostic, the parties will inform this Court and propose a schedule for continuing to brief the pending motions.
8. Plaintiffs’ counsel has consulted with counsel for each of the defendants, both of whom consent to the granting of this Motion.
9. Counsel are available upon the Court’s request to answer any questions about their proposed resolution of this matter.
For the foregoing reasons, the Harris class respectfully requests that the Court suspend briefing and oral argument on Plaintiffs’ Motion to Lift the Stay and Enter Judgment and Defendants’ Motions to Dismiss.
3

Case 5:13-cv-00077-MFU-RSB Document 149 Filed 11/14/14 Page 4 of 5 Pageid#: 2141

Respectfully submitted,

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC.

/s/

.

Rebecca K. Glenberg (VSB No. 44099)

701 E. Franklin Street, Suite 1412

Richmond, Virginia 23219

Phone: (804) 644-8080

Fax: (804) 649-2733

rglenberg@acluva.org

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
Tara L. Borelli, pro hac vice Gregory R. Nevins, pro hac vice 730 Peachtree Street, NE, Suite 1070 Atlanta, Georgia 30308 Phone: (404) 897-1880 Fax: (404) 897-1884 tborelli@lambdalegal.org gnevins@lambdalegal.org

Counsel for Plaintiffs

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
James D. Esseks, pro hac vice Joshua A. Block, pro hac vice 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2500 Fax: (212) 549-2650 jesseks@aclu.org jblock@aclu.org
Amanda C. Goad, pro hac vice 1313 West 8th Street Los Angeles, CA 90017 Phone: (213) 977-9500 Fax: (213) 977-5273 agoad@aclu.org
JENNER & BLOCK LLP
Paul M. Smith, pro hac vice Luke C. Platzer, pro hac vice Mark P. Gaber, pro hac vice 1099 New York Avenue, NW Suite 900 Washington, D.C. 20001-4412 Phone: (202) 639-6000 Fax: (202) 639-6066 psmith@jenner.com lplatzer@jenner.com mgaber@jenner.com

4

Case 5:13-cv-00077-MFU-RSB Document 149 Filed 11/14/14 Page 5 of 5 Pageid#: 2142

CERTIFICATE OF SERVICE

I hereby certify that on the 14th day of November, 2014, I effected service upon counsel for Defendants by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system.

Stuart A. Raphael Solicitor General of Virginia Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-7240 sraphael@oag.state.va.us

Rosalie Pemberton Fessier Timberlake, Smith, Thomas & Moses, P.C. 25 North Central Avenue P.O. Box 108 Staunton, VA 24402-0108 (540) 885-1517 rfessier@tstm.com

Rhodes B. Ritenour Deputy Attorney General E-mail: rritenour@oag.state.va.us

Counsel for Defendant Thomas E. Roberts

Trevor S. Cox Deputy Solicitor General E-mail: tcox@oag.state.va.us

Allyson K. Tysinger Senior Assistant Attorney General/Chief atysinger@oag.state.va.us

Catherine Crooks Hill Senior Assistant Attorney General cchill@oag.state.va.us

Counsel for Defendant Janet M. Rainey

November 14, 2014

/s/

.

Rebecca K. Glenberg (VSB No. 44099)

American Civil Liberties Union

Foundation of Virginia, Inc.

701 E. Franklin Street, Suite 1412

Richmond, Virginia 23219

Phone: (804) 644-8080

Fax: (804) 649-2733

rglenberg@acluva.org

5

Case 5:13-cv-00077-MFU-RSB Document 149-1 Filed 11/14/14 Page 1 of 6 Pageid#: 2143

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

TIMOTHY B. BOSTIC, et al.,

)

)

Plaintiffs,

)

)

JOANNE HARRIS and JESSICA DUFF, and

)

CHRISTY BERGHOFF and VICTORIA KIDD, on )

behalf of themselves and all others similarly

)

situated,

)

)

Intervenor-Plaintiffs,

)

)

v.

)

)

JANET M. RAINEY, in her official capacity as

)

State Registrar of Vital Records,

)

)

GEORGE E. SCHAEFER, III, in his official

)

capacity as Clerk of the Circuit Court of the City of )

Norfolk,

)

)

Defendants,

)

)

MICl-IELE B. MCQUIGG, in her official capacity )

as the Clerk of the Circuit Court ofPrince William )

County,

)

)

Intervenor-Defendant.

)

Civil Action No.2: 13-cv-00395-AWA-LRL

CONSENT ORDER

THIS ACTION came before the Court on the motion oflntervenor-Plaintiffs-Joanne

Harris and Jessica Duff, and Christy Berghoff and Victoria Kidd, on behalf of themselves and all

others similarly situated (the "Harris Class")-and Defendant Janet M. Rainey, in her official

capacity as State Registrar of Vital Records, for the entry of this Consent Order resolving all

claims by Intervenor-Plaintiffs that remain in this action and in related litigation; and

IT APPEARING TO THE COURT THAT:

1. On February 24, 2014, this Court entered a judgment declaring that Virginia's

marriage laws are facially unconstitutional under the Due Process and Equal Protection Clauses 1

Case 5:13-cv-00077-MFU-RSB Document 149-1 Filed 11/14/14 Page 2 of 6 Pageid#: 2144
of the Fourteenth Amendment to the United States Constitution to the extent such laws deny the rights of marriage to same-sex couples or recognition of lawful marriages between same-sex couples that are validly entered into in other jurisdictions. The Court enjoined Rainey, and Clerk Schaefer and Clerk McQuigg (also in their official capacities), and their respective officers, agents and employees, from enforcing Article I,§ 15-A ofthe Virginia Constitution, Virginia Code§§ 20-45.2 and 20-45.3, and any other Virginia law if and to the extent that it denies to same-sex couples the rights and privileges of marriage that are afforded to opposite sex couples. The Court stayed the effect of the judgment pending appeal and severed Plaintiffs' claims for attorneys' fees and costs for consideration after the final disposition of the appeal. (See ECF No. 72.) Notices of appeal were filed by Rainey, Schaefer, and McQuigg.
2. At the time of that judgment, the Harris Class was not a party to this litigation. The Harris Class was certified as a plaintiff class on January 31, 2014 by the United States District Court for the Western District of Virginia. Harris v. Rainey, No.5: 13cv077, 2014 U.S. Dist. LEXIS 12801 (W.D. Va. Jan. 31, 2014). Harris involves identical legal challenges to Virginia's same-sex-marriage prohibition. The district court there certified the Harris Class as a representative class on behalf of (1) all same-sex couples in Virginia who have not married in another jurisdiction, and (2) all same-sex couples in Virginia who have married in another jurisdiction, excluding "any person who is a plaintiff in the pending case of Bostic ...." Id. at *4.
3. On March 10, 2014, the United States Court of Appeals for the Fourth Circuit granted the Harris Class's motion to intervene in this case on the side of the plaintiffs-appellees, over the objection of all of the other parties. On March 31, 2014, the District Court in Harris stayed further proceedings there in light of the Harris Class's intervention in this case. Harris v.
2

Case 5:13-cv-00077-MFU-RSB Document 149-1 Filed 11/14/14 Page 3 of 6 Pageid#: 2145
Rainey, No. 5:13cv00077, 2014 U.S. Dist. LEXIS 45559 (W.D. Va. Mar. 31, 2014). The Harris Class participated actively in proceedings in the Fourth Circuit, including filing a brief in support of affirmance and participating actively in oral argument.
4. On July 28, 2014, the Fourth Circuit affirmed the judgment of this Court. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014). On August 20,2014, the Supreme Court stayed the Fourth Circuit's mandate pending the timely filing and disposition of a petition for writ of certiorari. McQuigg v. Bostic, 189 L. Ed. 2d 884 (2014). The Harris Class continued to participate actively in appellate proceedings, including filing briefs in opposition to the request for a stay of the mandate (both in the Fourth Circuit and the Supreme Court), a brief in the Supreme Court in response to Rainey's petition for certiorari, and letter responses to the petitions for certiorari filed by Schaefer and McQuigg.
5. On October 6, 2014, the Supreme Court denied all three petitions for certiorari. Rainey v. Bostic, 190 L. Ed. 2d 140 (2014); Schaefer v. Bostic, 190 L. Ed. 2d 140 (2014); McQuigg v. Bostic, 190 L. Ed. 2d 14 (2014). The Fourth Circuit's mandate issued at 1:00 p.m. on October 6, 2014, at which time this Court's judgment took effect.
6. On October 21, 2014, this Court entered a consent order providing that any prevailing party wishing to file an application for attorneys' fees and costs under 42 U.S.C. § 1988 must file such application by November 21,2014.
7. On October 16, 2014, the Harris Class filed a motion in Harris seeking the entry of a judgment similar to the judgment entered in this case. The Harris Class maintains that it is a prevailing party under § 1988 by virtue of its success on appeal in this case, both at the Fourth Circuit and at the Supreme Court, and that it is entitled to recover its attorneys' fees and costs for its work both in Harris and in this case. On October 29, 2014, Defendant Rainey filed a motion
3

Case 5:13-cv-00077-MFU-RSB Document 149-1 Filed 11/14/14 Page 4 of 6 Pageid#: 2146
in Harris to dismiss that case as moot, opposed the entry of any judgment in Harris, and argued that the Harris Class is not a prevailing party.
8. Counsel for the Harris Class and Rainey have since conferred in a good faith effort to resolve all remaining claims by the Harris Class in this case and in Harris. The Harris Class provided counsel for Rainey with detailed time records by its attorneys at Jenner & Block documenting in excess of $150,000 in attorneys' fees for work specifically to defend the appeal in the Fourth Circuit and to response to the petitions for certiorari in the Supreme Court. The Harris Class represents that its attorneys' fees and costs in Harris and in this case-which which includes work performed by attorneys at Jenner & Block, the ACLU, the ACLU of Virginia, and Lambda Legal-total approximately $1,000,000.
9. Rainey denies that the Harris Class is entitled to recover fees either in Harris or in this case, contests the billing rates and charges, and disputes a number of the entries. But the parties to this Consent Order acknowledge the uncertainty and risks to each party associated with (i) litigating whether the Harris Class is a "prevailing party" within the meaning of§ 1988, and (ii) the range of possible outcomes with regard to the quantum of fees sought. Acknowledging further the legal costs and expense associated with litigating these issues, Rainey and the Harris Class have agreed to resolve their differences through this Consent Order, each term of which is material to the parties' willingness to enter into it.
IT IS, THEREFORE, AGREED AND ORDERED that: 1. The Harris Class is hereby entitled to the benefit of the declaratory and injunctive relief entered on February 24, 2014 against Defendant Rainey (and her respective agents and employees) in her official capacity as State Registrar of Vital Records.
4

Case 5:13-cv-00077-MFU-RSB Document 149-1 Filed 11/14/14 Page 5 of 6 Pageid#: 2147

Case 5:13-cv-00077-MFU-RSB Document 149-1 Filed 11/14/14 Page 6 of 6 Pageid#: 2148

Tara Lynn Borelli Gregory R. Nevins Lambda Legal Defense & Education Fund, Inc. 730 Peachtree Street, Suite 1070 Atlanta, GA 30308 (404) 897-1880 tborelli@lambdalegal.,org gnevins@lambdalegal.org
Mark P. Gaber Luke C. Platzer Paul M. Smith JENNER & BLOCK, LLP Suite 900 1099 New York Avenue, NW Washington, DC 200 15 (202) 637-6367 mgaber@jenner.com lplatzer@jenner.com psmith@jenner .com

Catherine Crooks Hill (VSB #43505) Senior Assistant Attorney General Unit Manager, Trial/General Civil Unit E-mail: cchill@oag.state.va.us
Allyson K. Tysinger (VSB #41982) Senior Assistant Attorney General Chief, Health, Education & Social Services E-mail: atysinger@oag.state.va.us

6

 
 CLOSED,CASREF
U.S. District Court Western District of Virginia (Harrisonburg) CIVIL DOCKET FOR CASE #: 5:13−cv−00077−MFU−RSB

Harris et al v. Rainey et al Assigned to: District Judge Michael F. Urbanski Referred to: Magistrate Judge Robert S. Ballou Cause: 42:1983 Civil Rights Act
Plaintiff
Joanne Harris on behalf of themselves and all others similarly situated

Date Filed: 08/01/2013 Date Terminated: 02/18/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Amanda Chloe Goad American Civil Liberties Union Foundation 1313 West 8th Street Los Angeles, CA 90017 213−977−9500 Fax: 213−977−5273 Email: agoad@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory Roland Nevins Lambda Legal Defense &Education Fund 730 Peachtree St, NE, Suite 1070 Atlanta, GA 30308 404−897−1880 Fax: 404−897−1884 Email: gnevins@lambdalegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James Dixon Esseks American Civil Liberties Union Foundation 125 Broad Street, Floor 18th New York, NY 10004−2400 212−549−2627 Email: jesseks@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua A. Block American Civil Liberties Union Foundation 125 Broad Street, Floor 18th New York, NY 10004−2400 212−549−2627 Email: jblock@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Luke Cardillo Platzer Jenner &Block LLP 1099 New York Avenue N.W., Suite 900 Washington, DC 20001 202−639−6094 Fax: 202−661−4813

Plaintiff
Jessica Duff on behalf of themselves and all others similarly situated

Email: lplatzer@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Peter Gaber Jenner &Block LLP 1099 New York Avenue N.W., Suite 900 Washington, DC 20001 202−637−6367 Fax: 202−661−4933 Email: mgaber@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul March Smith Jenner &Block LLP 1099 New York Avenue N.W., Suite 900 Washington, DC 20001 202−639−6060 Fax: 202−639−6066 Email: psmith@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Kim Glenberg American Civil Liberties Union of Virginia 701 E. Franklin St., Suite 1412 Richmond, VA 23219 804−644−8080 Fax: 649−2733 Email: rglenberg@acluva.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tara Lynn Borelli Lambda Legal Defense &Education Fund 730 Peachtree St, NE, Suite 1070 Atlanta, GA 30308 404−897−1880 Fax: 404−897−1884 Email: tborelli@lambdalegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amanda Chloe Goad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory Roland Nevins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James Dixon Esseks (See above for address)

Plaintiff
Christy Berghoff on behalf of themselves and all others similarly situated

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua A. Block (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luke Cardillo Platzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Peter Gaber (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul March Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Kim Glenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tara Lynn Borelli (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amanda Chloe Goad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory Roland Nevins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James Dixon Esseks (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua A. Block (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Victoria Kidd on behalf of themselves and all others similarly situated

Luke Cardillo Platzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Peter Gaber (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul March Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Kim Glenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tara Lynn Borelli (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amanda Chloe Goad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory Roland Nevins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James Dixon Esseks (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua A. Block (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Luke Cardillo Platzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Peter Gaber (See above for address) LEAD ATTORNEY PRO HAC VICE

V. Defendant Robert F. McDonnell in his official capacity as Governor of Virginia TERMINATED: 12/23/2013
Defendant Janet M. Rainey in her official capacity as State Registrar of Vital Records

ATTORNEY TO BE NOTICED
Paul March Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Kim Glenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tara Lynn Borelli (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Earle Duncan Getchell , Jr. McGuireWoods LLP Gateway Plaza 800 East Canal Street Richmond, VA 23219−3916 804−775−1000 Fax: 804−698−2260 Email: dgetchell@mcguirewoods.com TERMINATED: 12/30/2013 LEAD ATTORNEY
Michael Hugh Brady McGuireWoods LLP Gateway Plaza 800 East Canal Street Richmond, VA 23219−3916 804−775−4327 Fax: 804−698−2302 Email: mbrady@mcguirewoods.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Norman Allan Thomas Office of the Attorney General 900 East Main Street Richmond, VA 23219 804−371−7763 Fax: 804−371−0200 Email: nthomas@oag.state.va.us ATTORNEY TO BE NOTICED
represented by Catherine Crooks Hill OFFICE OF THE ATTORNEY GENERAL 900 EAST MAIN STREET RICHMOND, VA 23219 804−786−8199 Fax: 804−371−2087 Email: cchill@oag.state.va.us LEAD ATTORNEY

Defendant
Thomas E. Roberts in his official capacity as Staunton Circuit Court Clerk

ATTORNEY TO BE NOTICED
Earle Duncan Getchell , Jr. (See above for address) TERMINATED: 12/30/2013 LEAD ATTORNEY
Michael Hugh Brady (See above for address) TERMINATED: 01/24/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Alan Raphael Office of the Attorney General of Virginia 900 East Main Street Richmond, VA 23219 804−786−7240 Fax: 804−371−0200 Email: sraphael@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Norman Allan Thomas (See above for address) TERMINATED: 01/30/2014 ATTORNEY TO BE NOTICED
Rhodes Beahm Ritenour Office of the Attorney General of Virginia 900 East Main Street, Room 2130 Richmond, VA 23219 804−786−6731 Fax: 804−371−2087 Email: RRitenour@oag.state.va.us ATTORNEY TO BE NOTICED
Trevor Stephen Cox Office of the Attorney General − Richmond 900 East Main Street Richmond, VA 23219 804−786−7704 Fax: 804−371−0200 Email: tcox@oag.state.va.us ATTORNEY TO BE NOTICED
represented by Rosalie Pemberton Fessier TIMBERLAKE SMITH THOMAS &MOSES PC POST OFFICE BOX 108 STAUNTON, VA 24402−0108 540−885−1517 Fax: 540−885−4537 Email: rfessier@tstm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/01/2013

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against Robert F. McDonnell, Janet M. Rainey, Thomas E. Roberts (Filing &Administrative fee $ 400; Rec #

08/01/2013 08/01/2013 08/01/2013 08/01/2013 08/01/2013 08/01/2013 08/01/2013 08/01/2013 08/01/2013 08/02/2013 08/02/2013 08/02/2013 08/02/2013 08/02/2013 08/02/2013 08/02/2013 08/02/2013 08/02/2013 08/07/2013

0423−1827759), filed by Joanne Harris, Jessica Duff, Victoria Kidd, Christy Berghoff. 100 Day Notice due by 11/12/2013 120 Day Service due by 11/29/2013 (Attachments: # 1 Civil Cover Sheet)(mab) Modified on 8/5/2013−receipt# added (mab).
2 Summons Issued as to Robert F. McDonnell, Janet M. Rainey, Thomas E. Roberts.(mab)
3 MOTION to Appear Pro Hac Vice for attorney Joshua Block by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Attachments: # 1 Text of Proposed Order)(Glenberg, Rebecca)
4 MOTION to Appear Pro Hac Vice for attorney Tara Borelli by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Attachments: # 1 Text of Proposed Order)(Glenberg, Rebecca)
5 MOTION to Appear Pro Hac Vice for attorney James Esseks by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Attachments: # 1 Text of Proposed Order)(Glenberg, Rebecca)
6 MOTION to Appear Pro Hac Vice for attorney Mark Gaber by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Attachments: # 1 Text of Proposed Order)(Glenberg, Rebecca)
7 MOTION to Appear Pro Hac Vice for attorney Amanda Goad by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Attachments: # 1 Text of Proposed Order)(Glenberg, Rebecca)
8 MOTION to Appear Pro Hac Vice for attorney Greg Nevins by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Attachments: # 1 Text of Proposed Order)(Glenberg, Rebecca)
9 MOTION to Appear Pro Hac Vice for attorney Luke Platzer by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Attachments: # 1 Text of Proposed Order)(Glenberg, Rebecca)
10 MOTION to Appear Pro Hac Vice for attorney Paul Smith by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Attachments: # 1 Text of Proposed Order)(Glenberg, Rebecca)
11 ORAL ORDER REFERRING CASE to Magistrate Judge Robert S. Ballou. Motions referred to Robert S. Ballou. Entered by District Judge Michael F. Urbanski on 8/2/2013. (jat)
12 ORDER granting 10 MOTION for Paul M. Smith to Appear Pro Hac Vice. Signed by Magistrate Judge Robert S. Ballou on 8/2/2013. (jat)
13 ORDER granting 3 MOTION for Joshua Block to Appear Pro Hac Vice. Signed by Magistrate Judge Robert S. Ballou on 8/2/2013. (jat)
14 ORDER granting 4 MOTION for Tara L. Borelli to Appear Pro Hac Vice. Signed by Magistrate Judge Robert S. Ballou on 8/2/2013. (jat)
15 ORDER granting 5 MOTION for James Esseks to Appear Pro Hac Vice. Signed by Magistrate Judge Robert S. Ballou on 8/2/2013. (jat)
16 ORDER granting 6 MOTION for Mark P. Gaber to Appear Pro Hac Vice. Signed by Magistrate Judge Robert S. Ballou on 8/2/2013. (jat)
17 ORDER granting 7 MOTION for Amanda Goad to Appear Pro Hac Vice. Signed by Magistrate Judge Robert S. Ballou on 8/2/2013. (jat)
18 ORDER granting 8 MOTION for Gregory R. Nevins to Appear Pro Hac Vice. Signed by Magistrate Judge Robert S. Ballou on 8/2/2013. (jat)
19 ORDER granting 9 MOTION for Luke C. Platzer to Appear Pro Hac Vice. Signed by Magistrate Judge Robert S. Ballou on 8/2/2013. (jat)
20 AFFIDAVIT of Service for Summons and Complaint served on Robert F. McDonnell on August 6, 2013, filed by Christy Berghoff, Jessica Duff, Joanne

08/07/2013
08/16/2013
08/16/2013 08/16/2013 08/16/2013 08/16/2013 08/16/2013
08/28/2013
08/28/2013 08/30/2013
08/30/2013 08/30/2013 08/30/2013
09/03/2013 09/03/2013 09/03/2013 09/03/2013 09/03/2013
09/09/2013 09/09/2013

Harris, Victoria Kidd.(Glenberg, Rebecca)
21 AFFIDAVIT of Service for Summons and Complaint served on Janet M. Raney on August 6, 2013, filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd.(Glenberg, Rebecca)
22 SUMMONS Returned Executed by Joanne Harris, Jessica Duff, Victoria Kidd, Christy Berghoff. Thomas E. Roberts served on 8/13/2013, answer due 9/3/2013.(Glenberg, Rebecca)
23 ANSWER to 1 Complaint, by Janet M. Rainey.(Getchell, Earle)
24 MOTION to Dismiss on Sovereign Immunity Grounds by Robert F. McDonnell. (Getchell, Earle)
25 Brief / Memorandum in Support re 24 MOTION to Dismiss on Sovereign Immunity Grounds . filed by Robert F. McDonnell. (Getchell, Earle)
26 MOTION to Certify Class by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Glenberg, Rebecca)
27 Brief / Memorandum in Support re 26 MOTION to Certify Class . filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Attachments: # 1 Exhibit 1−Harris Declaration, # 2 Exhibit 2−Duff Declaration, # 3 Exhibit 3−Berghoff Declaration, # 4 Exhibit 4−Kidd Declaration, # 5 Exhibit 5−Nevins Declaration, # 6 Exhibit 6−Esseks Declaration, # 7 Exhibit 7−Smith Declaration)(Glenberg, Rebecca)
28 Brief / Memorandum in Opposition re 24 MOTION to Dismiss on Sovereign Immunity Grounds . filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Glenberg, Rebecca)
29 NOTICE of Appearance by Rosalie Pemberton Fessier on behalf of Thomas E. Roberts (Fessier, Rosalie)
30 Brief / Memorandum in Opposition re 26 MOTION to Certify Class , 27 Brief / Memorandum in Support, . filed by Robert F. McDonnell, Janet M. Rainey. (Attachments: # 1 Exhibit)(Getchell, Earle)
31 REPLY to Response to Motion re 24 MOTION to Dismiss on Sovereign Immunity Grounds . filed by Robert F. McDonnell. (Getchell, Earle)
32 MOTION to Dismiss by Thomas E. Roberts. (Fessier, Rosalie)
33 Brief / Memorandum in Support re 32 MOTION to Dismiss . filed by Thomas E. Roberts. (Attachments: # 1 Exhibit A − Affidavit of Laura Moran)(Fessier, Rosalie)
34 Magistrate Consent Notice to Parties. (jat)
35 Scheduling Letter to counsel. (jat)
36 RESPONSE in Opposition re 26 MOTION to Certify Class . filed by Thomas E. Roberts. (Fessier, Rosalie)
37 NOTICE of Appearance by Charles Barnet Lustig on behalf of timothy bostic (Lustig, Charles)
38 NOTICE by timothy bostic re 26 MOTION to Certify Class Requesting that Proposed Class Definition be Amended to Exclude Four Individuals (Lustig, Charles)
39 REPLY to Response to Motion re 26 MOTION to Certify Class . filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Glenberg, Rebecca)
40 Response re 38 Notice (Other) Re: Bostic Plaintiffs' Request To Be Excluded From Certified Class. filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Glenberg, Rebecca)

09/11/2013
09/11/2013 09/17/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013
10/01/2013
10/02/2013 10/03/2013 10/03/2013
10/04/2013
10/04/2013 10/04/2013

41 NOTICE of Hearing on Motion 26 MOTION to Certify Class , 32 MOTION to Dismiss , 24 MOTION to Dismiss on Sovereign Immunity Grounds : Motion Hearing set for Tuesday 10/29/2013 10:00 AM in Harrisonburg before District Judge Michael F. Urbanski. (sd)
42 RESPONSE in Opposition re 32 MOTION to Dismiss . filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Attachments: # 1 Exhibit Duff Declaration, # 2 Exhibit Harris Declaration)(Glenberg, Rebecca)
43 SCHEDULING ORDER: Bench Trial set for 6/2/2014 − 6/13/2014 09:30 AM in Harrisonburg before District Judge Michael F. Urbanski. Signed by District Judge Michael F. Urbanski on 9/17/2013. (jat)
44 MOTION for Summary Judgment by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Glenberg, Rebecca)
45 AFFIDAVIT in Support re 44 MOTION for Summary Judgment Graber Declaration. filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Glenberg, Rebecca)
46 AFFIDAVIT in Support re 44 MOTION for Summary Judgment Harris Declaration. filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Glenberg, Rebecca)
47 AFFIDAVIT in Support re 44 MOTION for Summary Judgment Duff Declaration. filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Glenberg, Rebecca)
48 AFFIDAVIT in Support re 44 MOTION for Summary Judgment Kidd Declaration. filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Glenberg, Rebecca)
49 AFFIDAVIT in Support re 44 MOTION for Summary Judgment Berghoff Declaration. filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Glenberg, Rebecca)
50 MOTION for Leave to File Brief in Excess of 25 Pages by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd.Motions referred to Judge Robert S. Ballou. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Proposed Brief)(Glenberg, Rebecca)
51 CERTIFICATE OF SERVICE by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd re 50 MOTION for Leave to File Brief in Excess of 25 Pages, 44 MOTION for Summary Judgment , 46 Affidavit in Support of Motion, 48 Affidavit in Support of Motion, 49 Affidavit in Support of Motion, 47 Affidavit in Support of Motion, 45 Affidavit in Support of Motion (amended) (Glenberg, Rebecca)
52 ORDER granting 50 Motion for Leave to File Brief in Excess of 25 Pages. Signed by District Judge Michael F. Urbanski on 10/2/2013. (jat)
53 MOTION to Stay re 44 MOTION for Summary Judgment by Robert F. McDonnell, Janet M. Rainey.Motions referred to Judge Robert S. Ballou. (Getchell, Earle)
54 Brief/Memorandum in Support of Motion to Suspend Scheduling Order, to Stay Briefing or in the alternative to Establish a Briefing Schedule. filed by Robert F. McDonnell, Janet M. Rainey. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Getchell, Earle)
55 RESPONSE in Opposition re 53 MOTION to Stay re 44 MOTION for Summary Judgment . filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Attachments: # 1 Exhibit A − Bostic Summary Judgment Brief)(Glenberg, Rebecca)
56 REPORT of Rule 26(f) Planning Meeting (Getchell, Earle)
57 NOTICE of Hearing by Attorney for Robert F. McDonnell, Janet M. Rainey re 53 MOTION to Stay re 44 MOTION for Summary Judgment , 54 Brief/Memorandum, 41 Notice of Hearing on Motion, Motion to be held on

10/04/2013 10/07/2013 10/08/2013
10/10/2013 10/17/2013 10/17/2013 10/18/2013 10/18/2013 10/18/2013 10/18/2013 10/22/2013 10/22/2013
10/23/2013 10/24/2013 10/24/2013 10/29/2013
10/29/2013 10/29/2013

10/29/2013, at 10:00 a.m., at U.S. District Court, Harrisonburg, before Judge Urbanski. Confirmed with U.S. Clerk's Office. (Getchell, Earle)
58 Objections by Plaintiffs Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd re 57 Notice of Hearing by Attorney, (Glenberg, Rebecca)
59 Response re 58 Objections . filed by Robert F. McDonnell, Janet M. Rainey. (Getchell, Earle)
60 Minute Entry for proceedings held before District Judge Michael F. Urbanski: Motion Hearing held on 10/8/2013 re 53 MOTION to Stay re 44 MOTION for Summary Judgment filed by Janet M. Rainey, Robert F. McDonnell. Order to follow. (Court Reporter Sonia Ferris.) (jat) (Entered: 10/09/2013)
62 Brief in Support re 44 MOTION for Summary Judgment filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (ORDER entered on 10/2/2013 granting 50 Motion for Leave to File Brief in Excess of 25 Pages.) (jat)
64 NOTICE by Robert F. McDonnell, Janet M. Rainey re 43 Scheduling Order Rule 26(a) Initial Disclosures (Getchell, Earle)
65 DISCOVERY LETTER re: Certificate Regarding Discovery − Initial Disclosures by Thomas E. Roberts.(Fessier, Rosalie)
66 Notice of Correction re 64 Notice (Other) − Deleted Rule 26(a)(3) Pretrial Disclosures 63 which was a Rule 26(a)(1) Initial Disclosure. Discovery does not get filed. (jat)
67 MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 10/18/2013. (mab)
68 ORDER granting in part and denying in part 53 Motion to Stay. Signed by District Judge Michael F. Urbanski on 10/18/2013. (mab)
69 MOTION for Leave to File Excess Pages by Robert F. McDonnell, Janet M. Rainey.Motions referred to Judge Robert S. Ballou. (Getchell, Earle)
70 ORDER granting 69 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Robert S. Ballou on 10/22/2013. (jat)
71 NOTICE of Hearing by Attorney for Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd re 44 MOTION for Summary Judgment Motion for Summary Judgement to be held on January 3rd, 2014, at 1:00pm, at U.S. District Court, 210 Franklin Road, Roanoke, Virginia, 24011, before Judge Urbanski. Confirmed with U.S. Clerk's Office. (Glenberg, Rebecca)
72 NOTICE of Appearance by Norman Allan Thomas on behalf of Robert F. McDonnell, Janet M. Rainey (Thomas, Norman)
73 Brief / Memorandum in Opposition re 44 MOTION for Summary Judgment . filed by Robert F. McDonnell, Janet M. Rainey. (Attachments: # 1 Attachment 1)(Getchell, Earle)
74 RESPONSE in Opposition re 44 MOTION for Summary Judgment . filed by Thomas E. Roberts. (Fessier, Rosalie)
75 Minute Entry for proceedings held before District Judge Michael F. Urbanski: Motion Hearing held on 10/29/2013 re 26 MOTION to Certify Class filed by Victoria Kidd, Joanne Harris, Jessica Duff, Christy Berghoff, 32 MOTION to Dismiss filed by Thomas E. Roberts, 24 MOTION to Dismiss on Sovereign Immunity Grounds filed by Robert F. McDonnell. Court will render an opinion. (Court Reporter Sonia Ferris.) (jat) (Additional attachment(s) added on 10/29/2013: # 1 Main Document) (jat).
76 Notice of Correction re 75 Motion Hearing. Corrected minute sheet to correct a misspelled word. (jat)
77 Notice of Cancellation of Motion for Summary Judgment Hearing set for January 3rd, 2014, at 1:00pm, at U.S. District Court, 210 Franklin Road, Roanoke,

10/30/2013 10/30/2013 11/04/2013 11/04/2013 11/05/2013 11/05/2013 11/07/2013
11/07/2013 11/12/2013
11/12/2013 11/19/2013 12/16/2013 12/16/2013 12/20/2013 12/23/2013

Virginia, 24011, before Judge Urbanski. (No Interpreter requested) (jat)
79 MOTION to Amend/Correct Amend Class Definition by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd.Motions referred to Judge Robert S. Ballou. (Glenberg, Rebecca)
80 Brief / Memorandum in Support re 79 MOTION to Amend/Correct Amend Class Definition . filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Glenberg, Rebecca)
81 NOTICE of Change of Address by Tara Lynn Borelli (Borelli, Tara)
82 MOTION for Leave to File Excess Pages Summary Judgement Reply Brief by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd.Motions referred to Judge Robert S. Ballou. (Attachments: # 1 Text of Proposed Order)(Glenberg, Rebecca)
83 RESPONSE in Opposition re 79 MOTION to Amend/Correct Amend Class Definition . filed by Robert F. McDonnell, Janet M. Rainey. (Getchell, Earle)
84 ORDER granting 82 Motion for Leave to File Brief in Excess Pages. Signed by Magistrate Judge Robert S. Ballou on 11/5/13. (kld)
85 TRANSCRIPT REQUEST (Expedited−7 calendar days Service) by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd for proceedings held on 10/29/2013 reported by Court Reporter Sonia Ferris before Judge Urbanski. Following Transcript due date is an estimated deadline pending deposit, if required by Court Reporter: Transcript due by 11/14/2013. (Glenberg, Rebecca)
86 REPLY to Response to Motion re 44 MOTION for Summary Judgment . filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Glenberg, Rebecca)
87 TRANSCRIPT of Proceedings: Motion Hearing held on 10/29/2013 before Judge Michael F. Urbanski. Court Reporter/Transcriber Sonia Ferris, Telephone number SoniaF@vawd.uscourts.gov 540.434.3181 Ext. 8510. NOTICE RE REDACTION OF TRANCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/3/2013. Redacted Transcript Deadline set for 12/13/2013. Release of Transcript Restriction set for 2/10/2014. (sf)
88 REPLY to Response to Motion re 79 MOTION to Amend/Correct Amend Class Definition . filed by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd. (Glenberg, Rebecca)
89 NOTICE by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd re 44 MOTION for Summary Judgment Notice of Supplemental Authority (Attachments: # 1 Exhibit Whitewood opinion)(Glenberg, Rebecca)
90 DISCOVERY LETTER re: Rule 26(a)(2) Disclosures by Thomas E. Roberts.(Fessier, Rosalie)
91 NOTICE by Robert F. McDonnell, Janet M. Rainey re 43 Scheduling Order Rule 26(a)(2) Initial Expert Disclosures (Getchell, Earle)
92 NOTICE by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd re 44 MOTION for Summary Judgment Notice of Supplemental Authority (Attachments: # 1 Exhibit A − Griego Opinion)(Glenberg, Rebecca)
93 NOTICE by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd re 44 MOTION for Summary Judgment Notice of Supplemental Authority (Attachments: # 1 Exhibit A−Kitchen v Herbert Opinion)(Glenberg, Rebecca)

12/23/2013 12/23/2013 12/24/2013
12/30/2013 01/07/2014
01/09/2014 01/15/2014
01/15/2014 01/22/2014 01/22/2014
01/22/2014 01/23/2014 01/23/2014 01/23/2014 01/24/2014
01/24/2014 01/27/2014
01/27/2014 01/27/2014 01/29/2014 01/30/2014
01/31/2014 01/31/2014

94 MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 12/23/2013. (jat)
95 ORDER granting 24 Motion to Dismiss; denying 32 Motion to Dismiss. Signed by District Judge Michael F. Urbanski on 12/23/2013. (jat)
96 NOTICE by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd re 44 MOTION for Summary Judgment Notice of Supplemental Authority (Attachments: # 1 Exhibit A−Obergefell)(Glenberg, Rebecca)
97 NOTICE by Janet M. Rainey (Withdrawal of Atty) (Getchell, Earle)
98 NOTICE of Appearance by Catherine Crooks Hill on behalf of Janet M. Rainey (Hill, Catherine) (Additional attachment(s) added on 1/9/2014: # 1 Main Document) (jat).
99 Notice of Correction re 98 Notice of Appearance − Replaced fillable document with one that was converted to.pdf. (jat)
100 NOTICE by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd re 44 MOTION for Summary Judgment Notice of Supplemental Authority (Attachments: # 1 Exhibit A − Bishop Opinion)(Glenberg, Rebecca)
101 NOTICE by Janet M. Rainey [of Withdrawal of Counsel] (Thomas, Norman)
102 NOTICE of Appearance by Stuart Allen Raphael on behalf of Janet M. Rainey (Raphael, Stuart)
103 MOTION for Extension of Time to File Answer by Thomas E. Roberts.Motions referred to Judge Robert S. Ballou. (Attachments: # 1 Text of Proposed Order)(Fessier, Rosalie)
104 ANSWER to 1 Complaint, by Thomas E. Roberts.(Fessier, Rosalie)
105 ORDER granting 103 Motion for Extension of Time to Answer. Signed by District Judge Michael F. Urbanski on 1/23/14. (kld)
106 MOTION to Withdraw as Attorney by Janet M. Rainey.Motions referred to Judge Robert S. Ballou. (Brady, Michael)
107 NOTICE of Change of Address by Amanda Chloe Goad (Goad, Amanda)
108 Oral ORDER granting 106 Motion to Withdraw as Attorney. Attorney Michael Hugh Brady terminated from the docket as counsel for Defendant Janet M. Rainey by Magistrate Judge Robert S. Ballou on 1/24/14. (mka)
109 NOTICE of Appearance by Trevor Stephen Cox on behalf of Janet M. Rainey (Cox, Trevor)
110 NOTICE by Janet M. Rainey re 44 MOTION for Summary Judgment (Attachments: # 1 Memorandum in Support of Change in Position)(Raphael, Stuart)
111 Amended ANSWER to 1 Complaint, by Janet M. Rainey.(Raphael, Stuart)
112 MOTION to Withdraw as Attorney by Janet M. Rainey.Motions referred to Judge Robert S. Ballou. (Thomas, Norman)
113 RESPONSE to Motion re 44 MOTION for Summary Judgment (Supplemental). filed by Thomas E. Roberts. (Fessier, Rosalie)
114 Oral ORDER granting 112 Motion to Withdraw as Attorney. Attorney Norman A. Thomas terminated from the docket as counsel for Defendant Janet M. Rainey. Entered by Magistrate Judge Robert S. Ballou on 1/30/14. (mka)
115 MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 1/31/14. (mka)
116 ORDER granting 26 Motion to Certify Class; granting 79 Motion to Amend/Correct. Signed by District Judge Michael F. Urbanski on 1/31/14. (mka)

01/31/2014 02/03/2014 02/03/2014 02/03/2014 02/10/2014
02/10/2014
02/12/2014 02/12/2014 02/12/2014 02/14/2014 02/19/2014 02/26/2014 02/27/2014 02/27/2014 02/28/2014
02/28/2014

117 ORDER directing parties to set a Status Conference. Signed by District Judge Michael F. Urbanski on 1/31/14. (mka)
118 NOTICE of Hearing: Status Conference set for 2/12/2014 02:00 PM in Harrisonburg before District Judge Michael F. Urbanski. (sd)
119 NOTICE of Appearance by Rhodes Beahm Ritenour on behalf of Janet M. Rainey (Ritenour, Rhodes) (Additional attachment(s) added on 2/3/2014: # 1 Main Document) (jat).
120 Notice of Correction re 119 Notice of Appearance − Replaced fillable document with one that was compressed by Adobe. (jat)
121 Notice Rescheduling Hearing (No Interpreter requested) previously set for 2/12/2014 at 2:00 PM before Judge Urbanski in Harrisonburg: TELEPHONIC Status Conference set for 2/12/2014 02:00 PM in Harrisonburg before District Judge Michael F. Urbanski. Reporter required. Parties have been emailed the call in information. (jat)
122 STATUS REPORT filed jointly by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd, Janet M. Rainey, Thomas E. Roberts (Attachments: # 1 Exhibit A. Transcript of summary judgment argument, Bostic v. Rainey, No. 5:13−cv−77 (E.D. Va. Feb. 4, 2014))(Raphael, Stuart)
123 Notice of Cancellation of Status Conference set for 2/12/2014 @ 2:00 PM (No Interpreter requested). (jat)
124 NOTICE of Hearing: Status Conference set for 2/19/2014 11:00 AM in Harrisonburg before District Judge Michael F. Urbanski. (mfu−lc2, )
125 NOTICE by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd re 44 MOTION for Summary Judgment Notice of Supplemental Authority (Attachments: # 1 Exhibit A−Bourke Opinion)(Glenberg, Rebecca)
126 NOTICE by Janet M. Rainey re 44 MOTION for Summary Judgment , 110 Notice (Other) Supplemental Authority (Attachments: # 1 Exhibit Opinion in Bostic v. Rainey)(Raphael, Stuart)
127 Minute Entry for proceedings held before District Judge Michael F. Urbanski: Status Conference held on 2/19/2014. (Court Reporter Sonia Ferris.) (jat)
128 NOTICE by Janet M. Rainey of Supplemental Authority (Attachments: # 1 E.D. Va. Judgment, # 2 4th Cir. Briefing Order)(Raphael, Stuart)
130 NOTICE by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd re 44 MOTION for Summary Judgment Notice of Supplemental Authority (Attachments: # 1 Exhibit A − De Leon opinion)(Glenberg, Rebecca)
131 NOTICE by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd of filing motion to intervene on appeal in Bostic (Attachments: # 1 Exhibit A − Motion to Intervene)(Glenberg, Rebecca)
132 TRANSCRIPT REQUEST (Expedited−7 calendar days Service) by Janet M. Rainey for proceedings held on 02/19/2014 reported by Court Reporter Sonia Ferris before Judge Urbanski. Following Transcript due date is an estimated deadline pending deposit, if required by Court Reporter: Transcript due by 3/7/2014. (Cox, Trevor)
133 TRANSCRIPT of Proceedings: Status Hearing held on <>2/19/2014 before Judge Michael F. Urbanski. Court Reporter/Transcriber Sonia Ferris, Telephone number SoniaF@vawd.uscourts.gov 540.434.3181 Ext. 7. NOTICE RE REDACTION OF TRANCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/21/2014. Redacted

03/03/2014
03/04/2014 03/10/2014 03/31/2014 03/31/2014 04/01/2014 10/16/2014 10/21/2014 10/29/2014 10/29/2014 10/29/2014 10/29/2014
11/04/2014
11/10/2014

Transcript Deadline set for 3/31/2014. Release of Transcript Restriction set for 5/29/2014. (sf)
134 NOTICE by Janet M. Rainey re 127 Status Conference, 128 Notice (Other), 131 Notice (Other) of Fourth Circuit Filings Regarding this Case (Attachments: # 1 Exhibit 1: Consent Motion to Approve Parties Proposed Expedited Briefing Schedule, Bostic v. Schaefer (4th Cir. Feb. 27, 2014), # 2 Exhibit 2: Rainey Opp. to Harris Plfs Motion to Intervene, Bostic v. Schaefer (4th Cir. Mar. 3, 2014), # 3 Exhibit 3: Bostic Opp. to Harris Plfs Motion to Intervene, Bostic v. Schaefer (4th Cir. Mar. 3, 2014), # 4 Exhibit 4: Schaefer Opp. to Harris Plfs Motion to Intervene, Bostic v. Schaefer (4th Cir. Mar. 3, 2014), # 5 Exhibit 5: McQuigg Opp. to Harris Plfs Motion to Intervene, Bostic v. Schaefer (4th Cir. Mar. 3, 2014))(Raphael, Stuart)
135 NOTICE by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd Of Additional 4th Circuit Filings (Attachments: # 1 Exhibit A−Reply In Support of Motion to Intervene)(Glenberg, Rebecca)
136 NOTICE by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd of Fourth Circuit Intervention and Scheduling Orders (Attachments: # 1 Exhibit A − Order Expediting Case and Granting Intervention, # 2 Exhibit B − Briefing Schedule)(Borelli, Tara)
137 MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 3/31/2014. (jat)
138 ORDER STAYING CASE. Signed by District Judge Michael F. Urbanski on 3/31/2014. (jat)
139 Notice of Cancellation of Bench Trial set for 6/2/2014 − 6/13/2014 09:30 AM in Harrisonburg. (No Interpreter requested) (jat)
140 MOTION to Lift Stay and Enter Judgment by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd.Motions referred to Judge Robert S. Ballou. (Attachments: # 1 Exhibit A)(Borelli, Tara)
141 ORAL ORDER Vacating referral on motion re: MOTION to Lift Stay and Enter Judgment 140 filed by Victoria Kidd, Joanne Harris, Jessica Duff, Christy Berghoff. Entered by District Judge Michael F. Urbanski on 10/21/2014. (jat)
142 MOTION to Dismiss by Thomas E. Roberts. (Fessier, Rosalie)
143 Brief / Memorandum in Support re 142 MOTION to Dismiss , Brief / Memorandum in Opposition to 140 MOTION to Lift Stay and Enter Judgment. filed by Thomas E. Roberts. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Fessier, Rosalie)
144 MOTION to Dismiss for Lack of Jurisdiction as moot by Janet M. Rainey. (Raphael, Stuart)
145 Brief / Memorandum in Support re 140 MOTION to Lift Stay and Enter Judgment , 144 MOTION to Dismiss for Lack of Jurisdiction as moot, 142 MOTION to Dismiss (but opposing Plaintiffs' Mot. to Enter J., No. 140). filed by Janet M. Rainey. (Attachments: # 1 Exhibit 1: Judgment, Bostic v. Rainey (Feb. 24, 2014), # 2 Exhibit 2: Statement of Attorney General (Oct. 6, 2014), # 3 Exhibit 3: Statement of Governor McAuliffe (Oct. 6, 2014), # 4 Exhibit 4: Executive Order No. 30 (Oct. 7, 2014), # 5 Exhibit 5: Same−Sex Spouses can now Legally Adopt (Oct. 10, 2014), # 6 Exhibit 6: Roberts Declaration, # 7 Exhibit 7: Consent Order Bostic v. Rainey (Oct. 21, 2014))(Raphael, Stuart)
146 Consent MOTION for Extension of Time to File Response/Reply as to 140 MOTION to Lift Stay and Enter Judgment , 144 MOTION to Dismiss for Lack of Jurisdiction as moot, 142 MOTION to Dismiss by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd.Motions referred to Judge Robert S. Ballou. (Glenberg, Rebecca)
147 ORDER granting 146 Motion for Extension of Time to File Response/Reply − Responses due by 11/19/2014. Signed by Magistrate Judge Robert S. Ballou on

11/12/2014 11/14/2014
11/17/2014 11/19/2014 12/17/2014 02/18/2015 02/18/2015

11/6/2014. (jat)
148 NOTICE of Hearing: Oral Argument Hearing set for 12/11/2014 02:30 PM in Harrisonburg before District Judge Michael F. Urbanski. (jat)
149 Consent MOTION to Continue Suspend Briefing and Argument by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd.Motions referred to Judge Robert S. Ballou. (Attachments: # 1 Exhibit A−Proposed Consent Order in Bostic)(Glenberg, Rebecca)
150 ORDER granting 149 Motion to Continue Suspend Briefing and Argument. Status Report due 12/17/2014. Signed by District Judge Michael F. Urbanski on 11/17/2014. (jat)
151 Notice of Cancellation of 12/11/2014 @ 2:30 PM Oral Argument (No Interpreter requested) (jat)
152 STATUS REPORT Pursuant to November 17, 2014 Order by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd, Janet M. Rainey (Attachments: # 1 Exhibit A − Bostic Status Report)(Glenberg, Rebecca)
153 STIPULATION of Dismissal by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd, Janet M. Rainey, Thomas E. Roberts (Raphael, Stuart)
154 ORDER DISMISSING CASE With Prejudice. Signed by District Judge Michael F. Urbanski on 2/18/2015. (jat)