In The United States Court of Appeals For The Third Circuit

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Deb Whitewood, et al.,

v.

Secretary, Pennsylvania Department of
Health, et al.

No. 14-3048

PLAINTIFFS/APPELLEES MEMORANDUM OF LAW IN
OPPOSITION TO THERESA SANTAI-GAFFNEYS MOTION TO STAY

I. INTRODUCTION
On May 20, after reviewing voluminous submissions of evidence and
argument from the parties, the district court granted Plaintiffs motion for summary
judgment, declared Pennsylvanias exclusion of same-sex couples from marriage
(the Marriage Exclusion) unconstitutional and enjoined its enforcement. On
May 21, Governor Corbett announced that the Commonwealth Defendantsthe
Secretary of the Department of Health and the Secretary of the Treasurywould
not appeal the judgment and that state agencies would comply fully with the
district courts order.
1
Pursuant to its responsibility to see that the laws providing

1
I will ensure that my administration follows the provisions of J udge
J ones order with respect for all parties. Press Release, Office of the Governor,
Statement Regarding the Opinion of J udge J ones in the Whitewood Case (May 21,
2014), attached as Exhibit B to Plaintiffs Memorandum of Law in Opposition to
the Motion of Theresa Santai-Gaffney to Intervene (Plaintiffs Opposition to the
Intervention Motion). An additional defendant, Donald Petrille, J r., is the
Case: 14-3048 Document: 003111661497 Page: 1 Date Filed: 06/25/2014
2

for the licensing and registration of marriage are uniformly and thoroughly
enforced throughout the Commonwealth, the Department of Health has issued a
notice to all clerks of orphans courts explaining that they must consider
applications for the issuance of a marriage license without regard to the gender of
the applicants while the Department develops new forms.
2
Since May 21, clerks
across the state, including Clerk Gaffney,
3
have been issuing marriage licenses to
same-sex couples, and hundreds of these couples have reportedly applied for
marriage licenses.
4

Register of Wills of Bucks County. He was named because his office refused a
marriage license to certain Plaintiffs. After denial of his motion to dismiss by the
district court, Plaintiffs and Mr. Petrille executed and the district court approved a
stipulation excusing, but not dismissing, Defendant Petrille from further
participation in this litigation on the condition that he agreed to be bound by the
courts decision. (Dkt. No. 102, 105.)
2
Pa. Dept of Health, General Notice to All Clerks of the Orphans Court
(J une 11, 2014) (citing 71 P.S. 534(c)), attached to Plaintiffs Opposition to the
Intervention Motion as Exhibit C.

3
Santai-Gaffney said she will continue to follow J oness ruling unless it is
overturned, although she wants to intervene in the case in order to clarify what her
official duties are. Peter E. Bortner, Santai-Gaffney Seeks to Intervene in Gay
Marriage Lawsuit, The Republican Herald, J une 7, 2014, available at
http://republicanherald.com/news/santai-gaffney-seeks-to-intervene-in-gay-
marriage-lawsuit-1.1699458.
4
See, e.g., Same-Sex Couples Begin to Marry in Pa, The Washington Blade
(May 23, 2014), http://www.washingtonblade.com/2014/05/23/sex-couples-begin-
marry-pa/ (The Philadelphia Register of Wills told the Washington Blade on
Friday it has thus far issued 102 marriage licenses to same-sex couples.); Gay
Marriage in Pa.: Being Pronounced Wife and Wife Today Will Be Beyond
Validation, Highspire Woman Says, PennLive (May 24, 2014),
3

On J une 6, sixteen days after the Governor announced that the state agencies
would not appeal the district courts injunction, Clerk Gaffney filed a post-
judgment motion in the district court seeking to intervene for purposes of
appealing the judgment that the Defendants opted not to appeal. The district court
denied the motion. Clerk Gaffney filed a notice of appeal of the district courts
denial of her motion to intervene and of the May 20 injunction order,
5
and on J une
18, filed the instant motion for a stay of the district courts injunction pending her
appeal (hereinafter Stay Motion). Clerk Gaffney effectively asks the Court to

http://www.pennlive.com/midstate/index.ssf/2014/05/gay_marriage_in_pennsylvan
ia_h.html (reporting that in the first three days following the district courts
decision, Dauphin County received 45 same sex marriage license applications,
Lancaster County received 28, York County received 16, Cumberland County
received 7 and Lebanon County received 3); Same-Sex Marriage in Pennsylvania
Carries Wide Repercussions, Pittsburgh Post-Gazette (J une 2, 2014),
http://www.post-gazette.com/local/region/2014/06/03/Same-sex-marriage-in-Pa-
carries-wide-repercussions/stories/201406030120 (reporting 213 marriage licenses
issued in Allegheny County the first day of the week after the district courts
ruling, as compared to 99 the first day of the week before).
5
By order dated J une 18, 2014, Clerk Gaffneys appeal will be submitted to
a panel of the Court for a determination whether summary action under Third
Circuit Local Appellate Rule 27.4 and Third Circuit Internal Operating Procedure
10.6 is warranted. Plaintiffs are filing a brief in support of summary affirmance of
the district courts order on Clerk Gaffneys motion for intervention and dismissal
of the remainder of her appeal simultaneously with this brief.
4

turn back the clock to May 20 and reinstate the exclusion of same-sex couples
from marriage that has already been dismantled.
6

Clerk Gaffneys motion for a stay should be denied because it is unlikely
that her appeal on the merits will even be addressed by this Court, let alone
successful. Even if her chance of success on appeal were not remote, a stay still
would not be warranted because she has not shown that, in the absence of a stay,
she will be harmed in any way. In addition, the stay she is seeking would not
maintain the status quo, but rather, would alter it in a way that would significantly
harm plaintiffs and countless same-sex couples in Pennsylvania who would once
again be barred from the protections and dignity marriage affords to couples and
their families.
II. ARGUMENT
A. Standard for a Stay Pending Appeal
The standard for obtaining a stay pending appeal is essentially the same as
that for obtaining a preliminary injunction. A preliminary injunction is an
extraordinary remedy never awarded as of right. Conestoga Wood Specialties

6
In response to the Courts order directing the parties to address the
appropriateness of summary action on Clerk Gaffneys appeal, the Commonwealth
has noted that it has fully accepted the district courts decision and that
Commonwealth agencies have been working to comply with the decision by
modifying policies, practices and procedures as needed and making administrative
determinations consistent with the mandate of the courts injunction. Resp. of
Secy Wolf & Secy Meuser to J une 18, 2014 Court Order at 3-4 (J une 25, 2014).
5

Corp. v. Secy of U.S. Dept. of Health & Human Servs., No. 13-1144, 2013 WL
1277419, *1 (3d Cir. Feb 8, 2013) (quoting Winter v. Natural Res. Defense
Council, Inc., 555 U.S. 7, 24 (2008)). The party seeking such a stay must establish
(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if
the stay is denied; (3) that granting a stay will not result in even greater harm to the
nonmoving party; and (4) that the public interest favors a stay. Id.
Stays pending appeal are rarely granted in the Third Circuit because in our
Court the bar is set particularly high. Id. The moving partys failure to establish
any one element of the test bars the issuance of a stay. Id. at *1-2. Clerk Gaffney
cannot establish even one of the necessary elements.
B. Clerk Gaffney Has Failed to Meet Her Burden of Showing a
Likelihood of Success on the Merits.
Because Clerk Gaffney is not a party, she must establish more than a party
would to obtain a stay pending appeal. To demonstrate a likelihood of success on
the merits, she must make three separate showings: (1) that she is likely to
prevail on her appeal of the district courts denial of her motion to intervene; (2)
that she has Article III standing to pursue an appeal of the judgment below where
the parties have declined to do so, such that this Court is likely to reach the merits
of her appeal of the judgment; and (3) that, upon reaching the merits, this Court is
likely to reverse the district courts ruling striking down Pennsylvanias Marriage
Exclusion. If Clerk Gaffney fails to meet her burden on any one of these necessary
6

showings, her motion to stay must be denied. Clerk Gaffney fails on all three
issues.
1. No Likelihood of Success on the Merits of Clerk Gaffneys
Appeal of the Denial of her Motion to Intervene
Clerk Gaffneys Motion for Stay does not even address the likelihood of
success on the merits of her appeal of the intervention ruling, instead focusing
solely on her argument that she is likely to succeed on the merits of an appeal of
the district courts judgment striking down and enjoining enforcement of the
Marriage Exclusion. Clerk Gaffney conveniently forgets that she needs to first
secure a reversal of the district courts denial of her motion to intervene before
there could be any possibility of her appealing the judgment.
As discussed more fully in Plaintiffs/Appellees Memorandum of Law in
Support of Summary Affirmance and Dismissal of the Appeal of Theresa Santai-
Gaffney (hereinafter, Plaintiffs Summary Affirmance Brief),
7
the district court
did not abuse its discretion in denying Clerk Gaffneys motion to intervene. Clerk
Gaffney is highly unlikely to succeed on her appeal of the district courts denial of
intervention because she failed to identify a sufficient interest at stake in this
litigation. Neither her ministerial role in administering marriage licenses, nor her
unsupported claim that there is a lack of clarity about what her duties are, gives her

7
Plaintiffs hereby incorporate the arguments set forth in Plaintiffs
Summary Affirmance Brief as if fully set forth herein.
7

a protectable interest in changing the outcome of this litigationmuch less a
protectable interest that would be impaired by allowing same-sex couples the
freedom to marry. See Pls. Summ. Affirmance Br. at 4-13.
2. No Likelihood of Success on Clerk Gaffneys Appeal of the
Judgment
Even if this Court were to reverse the district courts order denying her
intervention, Clerk Gaffney would still not be entitled to a stay pending appeal
because she has failed to show that she is likely to succeed on an appeal of the
judgment below, or even that this Court is likely to reach the merits of the district
courts ruling.
It is unlikely that the Court will even reach the merits of Clerk Gaffneys
appeal of the judgment below because she plainly lacks standing to appeal. As
explained more fully in Plaintiffs Summary Affirmance Brief, Clerk Gaffney
lacks Article III standing to pursue an appeal of the judgment below where the
defendants have declined to appeal because she has no direct stake in the outcome
of the case. See Pls. Summ. Affirmance Br. at 13-15. She is not seeking relief for
a concrete injury that affects her. Id. Indeed, in her Motion for Stay, she focuses
on the harm that she alleges will be suffered by the Commonwealth and
individuals and not on any harm that she will suffer. See Stay Mot. at 14. Thus,
this Court need not even wade into an analysis of the merits of the district courts
judgment in order to deny the motion for a stay. See Munaf v. Geren, 553 U.S.
8

674, 690 (2008) (A difficult question as to jurisdiction . . . says nothing about the
likelihood of success on the merits, other than making such success more
unlikely due to potential impediments to even reaching the merits.).
Furthermore, even if Clerk Gaffney were permitted to appeal the judgment
below, she is not likely to succeed on the merits. In the wake of the U.S. Supreme
Courts decision in United States v. Windsor, 570 U.S. ---, 133 S. Ct. 2675 (2013),
every court that has considered the same constitutional questions at issue in this
litigationincluding one circuit court of appeals and 14 other district courts
unanimously agreed with the district courts conclusion that the exclusion of same-
sex couples from marriage is unconstitutional.
8
She has not raised any arguments
that were not already addressed and rejected in these post-Windsor cases.

8
Kitchen v. Herbert, --- F.3d ---, 2014 WL 2868044 (10th Cir. J une 25,
2014), affirming 961 F. Supp. 2d 1181 (D. Utah 2013); Entry on Cross-Motions for
Summary J udgment, Baskin v. Bogan, No. 14-0355, Dkt. No. 50 (S.D. Ind. J une
25, 2014); Wolf v. Walker, No. 14-0064, 2014 WL 2558444 (W.D. Wis. J une 6,
2014); Geiger v. Kitzhaber, No. 13-1834, 2014 WL 2054264 (D. Or. May 19,
2014), appeal docketed, No. 14-35427 (9th Cir. May 16, 2014); Latta v. Otter, No.
13-0482, 2014 WL 1909999 (D. Idaho May 13, 2014), appeals docketed, Nos. 14-
35420, 14-35421 (9th Cir. May 14, 2014); Henry v. Himes, No. 14-0129, 2014
WL 1418395 (S.D. Ohio April 14, 2014), appeal docketed, No. 14-3464 (6th Cir.
May 12, 2014); DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014), appeal
docketed, No. 14-1341 (6th Cir. Mar. 21, 2014); Tanco v. Haslam, No. 13-1159,
2014 WL 997525 (M.D. Tenn. Mar 14, 2014) (preliminary injunction), appeal
docketed, No. 14-5297 (6th Cir. Mar. 19, 2014); De Leon v. Perry, 975 F. Supp. 2d
632 (W.D. Tex. 2014) (preliminary injunction), appeal docketed, No. 14-50196
(5th Cir. Mar. 1, 2014); Bostic v. Rainey, 970 F. Supp. 2d 456(E.D. Va.
2014), appeals docketed, Nos. 14-1167, 14-1169, 14-1173 (4th Cir. Feb. 25,
2014); Bourke v. Beshear, No. 13-0750, 2014 WL 556729 (W.D. Ky. Feb 12,
9

Clerk Gaffney places significant weight on the Supreme Courts stay order
in Herbert v. Kitchen, 134 S. Ct. 893 (2014). She argues that the two-sentence
order signal[s] the Courts belief that it will ultimately set [the district courts]
order aside. Stay Mot. at 6. But there is no basis for such an interpretation of the
brief order, which offers no insight into the Supreme Courts reasons for granting a
stay in that case. Indeed, none of the district courts that have ruled in marriage
cases since Kitchen have adopted this idiosyncratic reading of the stay order.
9

2014), appeal docketed, No. 14-5291 (6th Cir. Mar. 19, 2014); Bishop v. United
States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014), appeals docketed
sub nom. Bishop v. Smith, Nos. 14-5003, 14-5006 (10th Cir. J an. 17, 2014); Gray
v. Orr, No. 13-8449, 2013 WL 6355918 (N.D. Ill. Dec. 5, 2013); Obergefell v.
Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013), appeal docketed sub nom.
Obergefell v. Himes, No. 14-3057 (6th Cir. J an. 22, 2014).
Clerk Gaffney points only to Citizens for Equal Protection v. Bruning, 455
F.3d 859 (8th Cir. 2006), a pre-Windsor case upholding the exclusion of same-sex
couples from marriage, and fails to acknowledge all of the post-Windsor cases that
reached the opposite conclusion. See Stay Mot. at 18-19.
9
See Entry on Cross-Motions for Summary J udgment, Baskin v. Bogan, No.
14-0355, Dkt. No. 50 (S.D. Ind. J une 25, 2014); Wolf v. Walker, No. 14-64, 2014
WL 25584444 (W.D. Wis. J une 6, 2014); Geiger v. Kitzhaber, No. 13-1834, 2014
WL 2054264 (D. Or. May 19, 2014); Latta v. Otter, No. 13-00482, 2014 WL
1909999 (D. Idaho May 13, 2014); Henry v. Himes, No. 14-129, 2014 WL
1418395 (S.D. Ohio April 14, 2014); DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D.
Mich. 2014); Tanco v. Haslam, No. 13-1159, 2014 WL 997525 (M.D. Tenn. Mar
14, 2014); De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014); Bostic v.
Rainey, 2014 WL 561978, at *23 (E.D. Va. Feb. 13, 2014); Bourke v. Beshear, No.
13-750, 2014 WL 556729 (W.D. Ky. Feb 12, 2014); Bishop v. United States ex rel.
Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014).
10

Clerk Gaffney also argues that the Supreme Courts stay order in Kitchen, as
well as a handful of other stay orders by appellate courts in marriage cases, mean
that in all cases challenging the exclusion of same-sex couples from marriage, a
stay pending appeal should be issued upon the request of a government official
tasked with enforcing the states marriage laws. Stay Mot. at 5. But she fails to
acknowledge the critical difference between this case and the cases she cites: in
those cases, the stay was requested by a defendant who appealed the ruling; here,
no party with standing to do so has appealed the ruling.
The more analogous order from the Supreme Court concerning a request for
a stay, which Clerk Gaffney fails to even mention, is the Courts decision (without
dissent noted) on J une 4, 2014, denying a stay sought by a proposed intervenor in a
case concerning marriage for same-sex couples in Oregon. Natl Org. for
Marriage v. Geiger, No. 13A1173, 2014 WL 2514491 (U.S. J une 4, 2014). In
Geiger, as in this case, a non-party sought to intervene.
10
In Geiger, as in this case,
after a ruling from the district court striking down and enjoining enforcement of
the exclusion of same-sex couples from marriage, the government defendants

10
The proposed intervenor in Geiger was the National Organization for
Marriage, which sought to intervene on behalf of three of its members, including a
clerk. See Geiger v. Kitzhaber, No. 13-1834, Dkt. No. 86 (D. Or. Apr. 21, 2014)
(motion to intervene filed by National Organization for Marriage).
11

chose not to appeal.
11
In Geiger, as in this case, the district court denied the
motion to intervene and the proposed intervenor appealed that ruling and sought a
stay of the injunction pending appeal.
12
In Geiger, the U.S. Supreme Court denied
the proposed intervenors motion for a stay pending appeal.
13

* * *
In sum, Clerk Gaffney has failed to meet her threshold burdens of showing
that she would likely prevail on her appeal of the denial of her motion to intervene
and that she has standing to appeal the judgment below; thus, she can never hope
to challenge the merits of the district courts judgment. But even if she could, she
has not demonstrated that the district courts judgment, which is consistent with the
rulings in every one of the fourteen other post-Windsor cases addressing the same
question, would likely be reversed on appeal. She fails to meet the likelihood of
success element and her request for a stay should therefore be denied.

11
In Geiger, the state defendants chose not to defend the marriage exclusion
at all. See Geiger v. Kitzhaber, --- F. Supp. 2d ---, 2014 WL 2054264, at *1 (D.
Or. May 19, 2014).
12
See Geiger v. Kitzhaber, No. 13-1834, Dkt. No. 114 (D. Or. May 14,
2014) (minutes of proceedings at which district court denied National Organization
for Marriages motion to intervene); Geiger v. Kitzhaber, No. 14-35427, Dkt. No.
1 (9th Cir. May 16, 2014) (docketing appeal); id., Dkt. No. 5 (May 19, 2014)
(motion by National Organization for Marriage to stay lower court action).
13
J ustice Kennedy referred the application to the full court, which denied it
without dissent. Geiger, No. 13A1173, 2014 WL 2514491 (U.S. J une 4, 2014)
(The application for stay presented to J ustice Kennedy and by him referred to the
Court is denied.).
12

C. Clerk Gaffney Has Failed Even to Allege that Denying a Stay Will
Cause Her Irreparable Harm.

Clerk Gaffney does not claim to be threatened with any irreparable harm to
herself should her request for a stay be denied. Rather, she claims the denial of a
stay will harm the Commonwealth and same-sex couples that have married or plan
to do so. Clerk Gaffneys failure to identify any harm personal to her is fatal to her
motion.
As this Court has made quite clear, the movant must satisfy four different
elements in order to obtain a stay pending appeal. The requirement that the
movant show that she will suffer irreparable harm in the absence of a stay, like the
requirement of irreparable harm for a preliminary injunction, is distinct from the
requirement that the stay be in the public interest, and requires harm to the movant
herself, as this Court has emphasized in the preliminary injunction context: We
have repeatedly insisted that the preliminary injunction device should not be
exercised unless the moving party shows that it specifically and personally risks
irreparable harm. Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 562 F.3d
553, 557 (3d Cir. 2009) (emphasis added) (quoting Adams v. Freedom Forge
Corp., 204 F.3d 475, 487 (3d Cir. 2000)). Clerk Gaffneys complete failure of
proof on this element of her motion requires denial of the requested stay.
13

D. Granting a Stay Would Harm the Parties and Undermine the
Public Interest.

Clerk Gaffneys irreparable harm arguments (which are based on
purported harms to others, not herself) are more properly considered as arguments
that a stay is in the public interest, but are no more persuasive in this context.
With respect to her argument that the Commonwealth will be harmed by not
being able to deny marriage licenses, Clerk Gaffney fails to address the elephant in
the room: the Commonwealth Defendants were parties to the case, and they made
the judgment not to appeal but to comply with the district courts injunction. Clerk
Gaffney disagrees with this judgment, but a county clerk of orphans court cannot
substitute her judgment about the interests of the Commonwealth for that of
Commonwealth officials.
Clerk Gaffney argues that a stay will prevent state officials and myriad
administrative agencies from having to revise regulations to accommodate the
Injunction, only to have to revise them back if this Court, or the Supreme Court,
ultimately upholds the Commonwealths laws. Gaffney Br. Supp. Mot. for Stay
at 16. First, for the reasons discussed above, there is little chance that her appeal
on the merits will even be heard, so any chance of state agencies having to take any
measures to reinstitute enforcement of the marriage exclusion is remote. But even
if that were not the case, the status quo in Pennsylvania since May 21, when the
Governor announced that the Commonwealth would not appeal the injunction, is
14

that couples may marry regardless of gender. Same-sex couples have been
marrying across the state for over a month. Given the Governors pledge that state
agencies would comply with the district courts injunction, the transition Clerk
Gaffney seeks to avoid is already happening. See also Pa. Dept of Health,
General Notice to All Clerks of the Orphans Court (J une 11, 2014), supra n.2
(The Department of Health is in the process of preparing revisions to the
prescribed forms [for marriage licenses and applications for marriage licenses] to
conform to the decision in Whitewood.); Resp. Dept of Revenues Mot. for
Dismissal for Mootness Filed in Resp. to Petitioners Am. Pet. For Citation, In re
Estate of Burgi-Rios, No. 1310 of 2012 (Ct. Comm. Pleas Northampton Cnty. J une
6, 2014) (Commonwealth abandoned its pursuit of inheritance taxes contested by a
same-sex spouse).
Clerk Gaffney purports to be concerned about harm to same-sex couples,
whose marriages she asserts are uncertain while her appeal is pending.
14
But her
appeal creates no uncertainty about the validity of the marriages of same-sex
couples that have already occurred in Pennsylvania and those that will continue to
occur while the appeal is pending. Marriages entered into while the district courts
injunction is in place are valid and would remain valid even if Clerk Gaffney were

14
Clerk Gaffney purports to be concerned about uncertainty for same-sex
couples, yet she is the only one seeking to cast doubt on the validity of their
marriages.
15

permitted to proceed with her appeal and her appeal of the district courts
injunction were ultimately successful. Even in Utah, where the state defendants
sought a stay of the district courts injunction in Kitchen v. Herbert, 961 F. Supp.
2d 1181 (D. Utah 2013), but same-sex couples got married for a short period of
time until the Supreme Court issued a stay, a court has recognized that these are
valid marriages and will continue to be valid regardless of the outcome on appeal
in Kitchen. See Evans v. Utah, --- F. Supp. 2d ---, 2014 WL 2048343, at *13 (D.
Utah, May 19, 2014) (granting preliminary injunction requiring Utah to recognize
the marriages) (appeal pending).
15
Here in Pennsylvania, where the Governor
announced that the Commonwealth would accede to the judgment of the district
court and instructed clerks to issue marriage licenses without regard to gender of
the applicants, there is no conceivable basis to challenge the validity of the
marriages of same-sex couples that have been entered into since the district courts
injunction issued, regardless of what happens in this appeal.
A stay would offer no benefit to the Commonwealth or same-sex couples.
To the contrary, it would work significant harm to the Plaintiffs and the public
interest because the unmarried Plaintiffs and other unmarried same-sex couples in
Pennsylvania who are planning to marry and are now legally able to do so would

15
Clerk Gaffneys reliance on the experience of Utah as an example of the
practical harms that may occur absent a stay (Stay Mot. at 15) is, therefore,
misplaced.
16

be made to wait while the appeal is decided. Plaintiffs have shown that
Pennsylvanias marriage exclusion caused them and other same-sex couples and
their families serious and irreparable harms. See Whitewood v. Wolf, --- F. Supp.
2d ---, 2014 WL 2058105, at *2-3 (M.D. Pa., May 20, 2014). The importance of
marriage to couples and their children, both in terms of tangible protections and
social significance, cannot be disputed. See United States v. Windsor, 133 S. Ct.
2675, 2694 (2013). Thus, the public has nothing to gainbut much to loseif a
stay is granted.
III. CONCLUSION
It has been over a month since the district court declared Pennsylvanias
exclusion of same-sex couples from marriage unconstitutional and enjoined its
enforcement and the Commonwealth defendants announced that they would abide
by the ruling. Same-sex couples have been marrying and enjoying the dignity and
respect and critical legal protections that marriage affords. The Commonwealth
has accepted this and moved on. And county clerks across the stateincluding
Clerk Gaffneyare going about their business of issuing marriage licenses. Clerk
Gaffney is asking this Court to stay the district courts injunction and reinstate the
Marriage Exclusion and once again deprive Pennsylvanias same-sex couples of
the fundamental constitutional right to marry and equal treatment under the law.
She is asking this Court to take this extraordinary step while she pursues her appeal
17

despite the fact that she has enormous obstacles to overcome to even have her
appeal of the judgment heard, let alone succeed, and she has not identified a single
way that she will be harmed in the absence of a stay. Respectfully, Clerk
Gaffneys motion for a stay should be denied.

Respectfully submitted,

Dated: J une 25, 2014 HANGLEY ARONCHICK SEGAL
PUDLIN & SCHILLER

By: /s/ Mark A. Aronchick
Mark A. Aronchick
J ohn S. Stapleton
Dylan J . Steinberg
Rebecca S. Melley
One Logan Square, 27th Floor
Philadelphia, PA 19103
(215) 568-6200

Helen E. Casale
401 DeKalb Street, 4th Floor
Norristown, PA 19401
(610) 313-1670

ACLU FOUNDATION OF
PENNSYLVANIA

By: /s/ Witold J . Walczak
Witold J . Walczak
313 Atwood Street
Pittsburgh, PA 15213
(412) 681-7736

18

Mary Catherine Roper
Molly Tack-Hooper
P.O. Box 40008
Philadelphia, PA 19106
(215) 592-1513

J ames D. Esseks
Leslie Cooper
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2500

Seth F. Kreimer
3400 Chestnut St.
Philadelphia, Pa. 19104
(215) 898-7447

Counsel for Plaintiffs/Appellees

19

CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of J une, 2014, I caused the foregoing
Memorandum of Law in Opposition to Theresa Santai-Gaffneys Motion to Stay to
be filed electronically using the Courts electronic filing system, and that the filing
is available to counsel for all parties for downloading and viewing from the
electronic filing system.

/s/ Mark A. Aronchick
Mark A. Aronchick


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