1:15-cv-00009 #6

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4

Mitchell F. Thompson,Esq.

R. Todd Thompson, Esq.

Thompson Gutierrez

Alcantara,

P.C.

238 Archbishop Flores Street, Suite 801

Hagatna, Guam 96910

Telephone: (671)472-2089

Facsimile: (671) 477-5206

WilliamD. Pesch, Esq.

Guam Fami ly Law Of fi ce

173 Aspinall Avenue, Suite 203

Hagatna, Guam 96910

Telephone: (671) 472-8472

Facsimile: (671)477-5873

Attorneys for Plaintiffs KathleenM. Aguero and

Loretta M. Pangelinan

Bear?

-F rs>

PTTT

V v>,

S fe 1- ?**.«» •jSps -

DiSTRirT COURTOF

GUAM

APR

1 3

2015

~ i

JEAWWE G QlliNATA

CLERK OF COURT

IN

THE DISTR ICT COURT OF

GUAM

TERRITORY

OF GUAM

K THL N M

GU RO and LORETTA

M

PANGELINAN

Plaintiffs,

EDDIEBAZACALVO in his officialcapacityas

Governor

ofGuam; and CAROLYN GARRIDO

in her official capacity as Registrar in the Office

of

Vital Statistics, Department ofPublic

Health and Social Services,

Defendants.

CIVIL CASE NO.

PLAINTIFFS

MEMORANDUM

OF

LAW IN SUPPORT OF MOTION

FOR PRELIM INARY INJUNCTION

ORI IN L

09

Case 1:15-cv-00009 Document 6 Filed 04/13/15 Page 1 of 13

8/9/2019 1:15-cv-00009 #6


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Plaintiffs KATHLEEN M. AGUERO

and LORETTA

M.

PANGELINAN,

submit this

memorandum in

support

of

their

motion for a preliminary

injunction enjoining

Defendants and

their officers, employees, and agents from enforcing

10

G.C.A. §3207(h)

(hereinafter

referenced

as the

Marriage

Ban ) and

any

other

sources

of

Guam

lawthat

preclude same-sex

couples from marriage or refuse to recognize their lawful marriages.

FACTUAL BACKGROUND

As set

forth

in the

Complaint, Plaintiffs are

a

committed same-sex couple. (Compl.,

ECF.

No. 1.) LorettaM. ( Lo ) Pangelinan and Kathleen M. ( Kate )Aguero have been in a

committed, loving

relationship for

over nine

years.1 Kate

works

for

a local financial institution,

and

Lo

runs

her

own

maintenance

and

cleaning firm.2

Both Kate and

Lo

were born and

raised

on Guam.3

They are

hard working life-long

Guam

residents

with deep roots

in the

local

community.4 Both Kate and

Lo

feel that it is important to give back

to

the community

by

helping to raise and care for

children in

need

on

Guam.5 Both

are

registered

foster

parents with

Department

of

Public Health and Social Services( DPHSS ), and together they have cared for

numerous foster children through

the years.6 They are

currently

caring for three

foster

children.7

1

Declaration

of Kathleen

M. Aguero ( Aguero Decl. ),

at U1 (Apr.

13, 2015); Declaration

of

Loretta M. Pangelinan ( Pangelinan Decl. ), atK 1 (Apr. 13, 2015).

2

Aguero Decl.

atU2;

Pangelinan Decl.

at

]

2.

3 Aguero Decl. atII3; Pangelinan Decl. at^3.

4 Aguero Decl. atf 4;Pangelinan Decl. atT| 4.

3 Aguero Decl. at^5;Pangelinan Decl. atU5.

6

Aguero Decl.

at^6;Pangelinan

Decl.

atH6.

7 Aguero

Decl.

atU6;Pangelinan Decl. atH

6.

1


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Kate and Lowish to marry each other because they love each other and are committed

to

each

other for life.8 They

want to celebrate

their mutual

love

through

marriage,

and

they

wish

to

marry

in

Guam

so

that

all

their friends and family may

attend

and participate

in their

joyous occasion.9 While Kate and Lo

could

travel thousands ofmiles to get married

in

another

jurisdiction

where

marriage for

same-sex couples

is

recognized, such

travel

would

be costly

and difficult to arrange, given their

busy

schedules, responsibilities, and limited financial

resources.10

More

importantly, they

want

to be

able

to

invite their family and friends on Guam

to bearwitness to their love and commitmentfor each other in the sameway that different-sex

couples in Guam

are

able

to

do through marriage. Kate and

Lo

believe

that

they should not

have to leave Guam tohave their

love

and commitment recognized.12

On April 8, 2015, Plaintiffs personally brought their application for a marriage license

to the Vital StatisticsOffice

of

DPHSS, in Mangilao, the office that processes marriage license

applications on

Guam.13

DPHSS officials refused

to

accept the application and

handed

the

women two documents: (1) a 2009 opinion letter from the Acting Guam Attorney General

concerning common law unions; and (2) a copy

of

certain provisions from Tile 10

of

the

Guam Code Annotated, including 10 G.C.A. Section 3207(h), indicating, [mjarriage means

the legal union

of

persons

of

the opposite sex. 14

At no

time has any government official

Aguero Decl. at U7; Pangelinan Decl. at ^ 7.

9 Aguero Decl. at^8; Pangelinan Decl. at1

8.

10

Aguero

Decl.

atU9;

Pangelinan Decl.

at

9.

1

Aguero

Decl. at1 10;

Pangelinan Decl.

atTJ10.

12

Aguero

Decl.

at

f

11; Pangelinan Decl. at ^j 11.

13

Aguero Decl.

at If 12; Pangelinan Decl. at

TJ12.

14

Aguero

Decl.

at

Tj 13;

Pangelinan Decl. at II13.


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articulated any reason for failing to issue a marriage license to Plaintiffs aside from their status

as a same sex couple.

LEGAL

STANDARD

A preliminary injunction may be granted if the movants establish that: (1) they are

likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence

of

preliminary relief; (3) the balance

of

equities tips in their favor; and (4) an injunction is in the

public interest.

Winter

v.

Natural Res Def. Council,

555 U.S. 7, 20 (2008). A plaintiff must

make a clear showing that she is likely to suffer irreparable harm absent relief and is likely

succeed on the merits at trial.

Id

(citations omitted).

See also Alliancefor the Wild Rockies v.

Cottrell

632

F.3d

1127,

1131

(9th Cir. 2011).

Plaintiffs are entitled to a preliminary injunction.

First,

application of controlling law

in this jurisdiction means that Plaintiffs have far more than a likelihood

of

success on the

merits—based

on the

controlling ruling by

the

Ninth

Circuit in

Latta v.

Otter

771

F.3d 456 (9th

Cir. 2014)—they are practically assured that they will prevail on their claim that Guam's

marriage ban is unconstitutional under both the Due Process and Equal Protection Clauses

of

the U.S. Constitution.

See also Windsor v. United States,

133 S. Ct. 2675, 2693-95 (2013)

(observing that when government relegates same-sex couples' relationships to a second-tier

status, the government demeans the couple, humiliates...children being raised by same-sex

couples,' deprives these families

of

equal dignity, and degrade[s] them, in addition to

causing them countless tangible harms, all in violation of basic due process and equal

protection principles. ).


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Second,

Plaintiffs will suffer irreparable harm if the injunction does not issue because

of the

significant

emotional, dignitary,

and

tangible harms

caused

by

GovGuam s ongoing

refusal

to provide them

equal

dignity anddeprivation of their constitutional rights.

Third in permitting Plaintiffs and other same-sex couples to marry, the government's

burden would be limited to performing minor administrative tasks that are no different from

those it routinely performs for different-sex couples who marry within the state. Indeed,

Guam's sister jurisdictions in the Ninth Circuit have seamlessly followed

the.

decision in

Latta

and allowed same-sex couples to marry in Alaska, Arizona, and Montana. Furthermore,

enjoining enforcement of Guam's unconstitutional marriage ban can only promote the public

interest, since the public interestis necessarily served by vindicating constitutional rights.

Other courts have promptly issued preliminary injunctions in similar circumstances.

Condon v. Haley, 2014 WL 5897175 (D. S.C. Nov. 12, 2014) (granting injunctive relief and

summary judgment regarding South Carolina marriage ban less than one month after initiation

of action); Guzzo

v. Mead

2014 WL 5317797 (D. Wyo. Oct. 17, 2014) (granting preliminary

injunction enjoining enforcement

of

Wyoming's ban on marriage for same-sex couples a mere

ten days after the filing

of

the original complaint);

Marie

v. Moser 2014 WL5598128 (D. Kan.

Nov. 4, 2014) (enjoining enforcement of Kansas's ban on marriage for same-sex couples less

than one month after the commencement

of

the action [b]ecause Tenth Circuit precedent is

binding on this

Court... ).

Likewise, in the instant case, there is absolutely no principled reason to delay granting

injunctive relief in the face of controllingNinth Circuit precedent on point.


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I

THE NINTH

CIRCUIT

HAS HELD THAT STATES

MAY NOT

DENY

SAME SEX

COUPLES

THEIR

FUNDAMENTAL RIGHT TO MARRY;

PLAINTIFFS

ARE

HIGHLY

LIKELY

TO SUCCEED ON TH E M ERITS

OF THE IR CLA IMS

Latta v. Otter 771 F.3d

456

(9th

Cir.

2014)

the

Ninth

Circuit ruled that Idaho s laws

prohibiting same-sex couples from marrying the person they choose violates the Fourteenth

Amendment. Upon the issuanceof the Ninth Circuit's Opinion in Latta. multiple district courts

across the Circuit expeditiously granted injunctive and declaratory relief against state laws,

similar to Guam's Marriage Ban, barring same-sex couples from marriage as a result of the

Ninth Circuit's clear pronouncement that laws barring same-sex couples from marriage are

unconstitutional.

See, e.g., Rolando v. Fox,

2014 WL 6476196, *4 (D. Mont. 2014) (Granting summary

judgment invalidating Montana's ban on marriage for same-sex couples one month after Latta

because Latta represents bindingNinth Circuit precedent and provides the framework that this

Court must follow. ); Hamby

v.

Parnell,

2014 WL 5089399, *12, n.35 (D. Alaska 2014)

(Granting summary judgment invalidatingAlaska's ban on marriage for same-sex couples one

week after Latta because Latta is the controlling law of this Circuit. );

Majors v. Home,

14F.

Supp. 3d at 1315 (D. Ariz. 2014) (Granting summary judgment invalidating Arizona's ban on

marriage for same-sex couples ten days after Latta because [t]his court is bound by decisions

of

the Court ofAppeals for the Ninth Circuit. ).

Where enforcement

of

[a] statute has properly been invalidated as unconstitutional,

then so is enforcementof all identical statutes in other States, whether occurring before or

after our decision. Am

Trucking

Ass ns v. Smith 496 U.S. 167, 175 (1990) (Scalia, J.

concurring);

see also

Windsor 133 S. Ct. at 2691 (striking down a federal law that

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discriminated against legally married same-sex couples, the Supreme Court emphasized that

[sjtate

laws

. . . regulating marriage, of course,

must

respect the constitutional rights of

persons. ).

Plaintiffs seek fromthis Courtonlywhat

Latta

requires, which is a rulingenjoining the

enforcementof laws that prevent same-sexcouples frommarrying. 771 F.3d at 476. See also,

e g Preferred Communications v.

City

o

Los

Angeles 13

F.3d

1327, 1333

(9th Cir.

1994)

( All governmentofficials have a duty to upholdthe United States Constitution

... ).

Guam's marriage ban undeniably violates Plaintiffs' rights where it denies them the

legal, social, and financial benefits enjoyed by different-sex couples and their children. The

Ninth Circuit held that marriage bans, such as the Guam law at issue here, violate the equal

protection clause.

Civil marriage is one of the cornerstones of our way

of

life. It allows individuals to

celebrate and publicly declare their intentions to form lifelong partnerships, which provide

unparalleledintimacy, companionship, emotional support, and security. Bostic v.

Schafer

760

F.3d. 352,

384

(4th Cir. 2014).

Marriage

is one ofthe basic

civil rights

of

man

... Loving

v

Virginia, 388 U.S. 1, 12 (1967) (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

535, 541 (1942)). It is the most important relationin life and

of

fundamental importance for

all individuals. Zablocki v. Redhail 434 U.S. 374, 384 (1978). Plaintiffs seek simply to

exercise this basic civil right.

Plaintiffs' April 13, 2015 Memorandum

of

Points and Authorities in support of their

companion Motion for Summary Judgment addresses Latta in greater detail, along with

numerous additional authorities supporting the grant of immediate relief in the instant case.


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Plaintiffs respectfully incorporate by this reference as if fully set forth hereinParts I.B., II, III,

and

IV

of that Memorandum as if

fully

set forth herein. Based on the

controlling

ruling in

Latta

the

Guam

Marriage Ban violates Plaintiffs'

equal

protection rights. Plaintiffs havemet

their burden to show that they are likely to succeedon the merits.

II

PLAINTIFFS A RE L IK EL Y

TO

SUFFER IRREPARABLE HARM IN

THE ABSENCE

OF

PRELIMINARY RELIEF

As the

Sixth Circuit noted

in

Planned

Parenthood Ass n

o

Cincinnati v. City of

Cincinnati 822 F.2d 1390, 1400 (6th Cir. 1987), a showingof a likelihoodof success on the

merits

of a constitutional violation

easily

leads to a finding of the remaining factors to grant a

preliminary injunction because: (1) there is potential irreparable injury in the

form

of a

violation of constitutional rights ; (2) a likelihood that the Ordinance will be found

unconstitutional

[means]

it is therefore questionable whether the City has any 'valid' interest in

enforcing the Ordinance ; and (3) the public is certainly interested in the prevention of

enforcement

of

ordinanceswhichmay be unconstitutional.

Defendants' continued enforcement of the marriage ban against the Plaintiffs violates

their constitutional rights, which, withoutmore, establishes irreparableharm as a matter

of

law.

See e g Elrod

v.

Burns

ll

U.S.347, 373 (1976) (holding that deprivation

of

constitutional

rights for even minimal periods of time, unquestionably constitutes irreparable harm );

Sammartano

v.

First

Judicial Dist In

and

for

County

of

Carson City

202 F.3d 959, 974

(9th

Cir. 2002) (courts considering a preliminary injunction haveconsistently recognized the public

interest in First Amendment principles); Kikumura

v. Hurley

242 F.3d 950, 963 (10th Cir.

2001) ( When an alleged constitutional right is involved, most courts hold that no further

showing of irreparable injury is necessary. ) (citing 11A Charles Alan Wright et al., Federal

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Practice and Procedure § 2948.1 (2d ed. 1995).

See also

Baskin

v. Bogan,

983, Supp. 2d 1021,

1028 (S.D. Ind. 2014) (granting preliminary injunction requiring state to recognize same-sex

couple's marriage and reaffirming its conclusion that a constitutional violation, like the one

alleged here, is indeed irreparable harm for purposes of preliminary injunctive relief. )

(citations omitted).

Accordingly, in addition to the deprivation of constitutional rights, which is per se

sufficient to satisfy their irreparable harm prong, Plaintiffs and other same-sex couples are also

suffering severe dignitary and practical harms that,

if

allowed to continue, can never be

redressed by money damages or a subsequent court order.

It is beyond dispute that marriage plays a unique and central social, legal, and economic

role in American society; it reflects the commitment that a couple makes to one another, and is

a public acknowledgement

of

the value, legitimacy, depth, and permanence of the married

couple's relationship. A marriage is a far-reaching legal acknowledgement

of

the intimate

relationship between two people, and the State inflicts grave dignitary harm when its law

announces that the Plaintiffs' relationships are not deemed by the State worthy of dignity in

the community equal with all other marriages. Windsor 133 S. Ct. at 2692.

In refusing to provide Plaintiffs a marriage license and allow them to marry, Guam

demeans and humiliates not only same-sex couples but their children, by making it even

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. See

Windsor

133

S.Ct.

at

2694.


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Plaintiffs are also denied

access

to the array of protections intended to safeguard

married couples and their families, especially important because of the unpredictability of, for

example, illnesses, accidents, emergencies and natural disasters. From hospital personnel to

emergency agencies to law enforcementpersonnel to health insurance companies, families —

defined by blood, adoption or marriage—are afforded special treatment. By way of example

only, same-sexcouples are denied family health insurancecoverage; employee benefits such as

spousal health benefits, retirement benefits, and surviving spouse benefits for public

employees; Social Security death and disability benefits; family leave for an employee to care

for a spouse; the ability to safeguard

family

resources under an array of laws that protect

spousal finances; the ability to make caretaking decisions for one another in times of death and

serious illness, including the priority to makemedicaldecisions for an incapacitatedspouse, the

automatic right to make burial decisions, and other decisions concerning disposition and

handling of remains of deceased spouses; the right to sue for wrongful death; the right to

inheritance under the laws of intestacy and the right

of

a surviving spouse to an elective share.

Given such pressing harms and the importance

of

the constitutional interests involved,

Plaintiffs and other same-sex couples and their children in this State should not be forced to

continue to wait even longer while futile, but potentially lengthy, litigation and the appellate

process concludes in order obtain the critical security and protection to which they are entitled

today. This is especially so where neighboring states in this jurisdiction are following the law

and the effect

of

the litigation is purely political and merely to forestall the inevitable. No relief

at the end of litigation could make the Plaintiffs whole for the harm caused by their exclusion


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from the most intimate and sacred

of

life's relationships in the interim. Zablocki, 434 U.S.

a t 3 84 .

III

THE BALANCE OF EQUITIES WEIGHS IN PLAINTIFFS FAVOR

BECAUSE GRANTING

INJUNCTIVE RELIEF

WILL NOT

HARM

DEFENDANTS AND WILL PROMOTE THE PUBLIC INTEREST

Finally, a preliminary injunction is appropriate because the balance

of

equities weighs

in Plaintiffs favor where an order enjoining the enforcement

of

Guam's marriage ban would not

burden the rights

of

Defendants or third parties, and would promote the unquestioned public

interest in the enforcement

of

constitutional rights. [T]he public is certainly interested in the

prevention

of

enforcement

of

[laws] which may be unconstitutional. RichmondMed

Ctr

For

Women

v.

Gilmore, 11 F. Supp. 2d 795, 829 (E.D. Va. 1998) (quoting Planned Parenthood

Ass n

o

Cincinnati, Inc. v City

o

Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987)). Indeed,

where continued litigation is futile based on controlling law, it is certainly in the public's

interest to save judicial resources and taxpayer money with a prompt and certain ruling.

See also Giovani Carandola, Ltd

v.

Bason, 303 F.3d 507, 521 (4th Cir. 2002)

(affirming the district court 's holding that a state is

in

no way harmed by issuance

of

a

preliminary injunction which prevents the state from enforcing restrictions likely to be found

unconstitutional.

If

anything, the system is improved by such an injunction.' The final

prerequisite to the grant

of

a preliminary injunction is that it serve the public interest. Again,

we agree with the district court that upholding constitutional rights surely serves the public

interest. ) (citations omitted).

GovGuam is unquestionably trampling on Plaintiffs' fundamental right to marry

pursuant to the Ninth Circui t' s ruling in Latta Accordingly, Plaintiffs seek an order that is

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plainly in the

public s

interest to enjoin Defendants

from

continuing to

infringe

fundamental

constitutional rights-their own

as

well as similarly situated same-sex couples-because the

public

has

an

interest in

ensuring that

laws

comport

with constitutional

requirements. Newsome

v

Albemarle Cnty Sch Bd 354 F.3d 249, 261 4th

Cir.

2003) ( Surely,

upholding

constitutional rights serves the public

interest ). See

also e g Stuart v

Huff

834 F.

Supp. 2d

424,

433

(M.D.N.C.

2011)

(«[I]t is in

the

public interest

for

statutes that likely violate

fundamental

constitutional rights be to enjoined from being

enforced. );

Does City of

Indianapolis

2006

U.S.

Dist. LEXIS

72865 at *29 (S.D. Ind.

Oct.

5,

2006)

( Defendants

will

not

be harmed by

having

to conform to constitutional

standards[.] ).

Compared

to

the

substantial harms suffered

by Plaintiffs in

absence

of

an

injunction,

and

to

all

of

the Guam

families

headed by same-sex

couples

who are

seeking the

protections

of

marriage, the

balance

of harms

tips decidedly

in Plaintiffs

favor.

Because

the

marriage

ban is

unconstitutional

on its face,

governmental

compliance

with

the

Constitution

always

serves

the

common good. Tanfordv. Brandm F. Supp. 1231,

1237

(S.D. Ind.

1995).

In sum, continued

enforcement

of

an unconstitutional statute

can never be in the

public

interest.

CONCLUSION

For the foregoing reasons,

this Court should issue a preliminary injunction that (1)

enjoins Defendants and

all

those

acting

in

concert therewith

from enforcing 10

G.C.A. Section

3207(h) and any

other sources

of

Guam

law

that

preclude same-sex couples

from

marriage

or

refuse to

recognize

their lawful marriages; (2)

enjoins

Defendants from

enforcing

any

and

all

other state statutes,

regulations or other laws which act

as abarrier

to or

otherwise discourage

same-sex couples from marrying, including but not limited to 10 G.C.A. Section 3207(h), and

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any

other

sources

of

Guam law

that

preclude same-sex

couples

from

marriage or

refuse

to

recognize their lawful marriages; (3) requires Defendant Garrido to issue a marriage license to

the Plaintiffs andall other same-sex couples upon their application and

satisfaction

of all legal

requirements for a marriage in

Guam

exceptfor the requirement that they be of different sexes,

and

requires

Defendant Garrido

to register

their

solemnized marriage as is

presently

required

for all other marriages; (4) enjoins

Defendants,

and those acting in concert therewith,

from

enforcing

laws

prohibiting a

person from marrying another person

of the

same sex, prohibit

recognition

of

same-sex

marriages lawfully

solemnized,

or

otherwise interfering

with

the

exercise of same-sex couples ability tomarry andbe recognized as lawfully married inGuam.

Respectfully

submitted this

13,h day

ofApril, 2015.

THOMPSON GUTIERREZ ALCANTARA, P.C.

Attorneys for Plaintiffs Kathleen M. Aguero and

Loretta M. Pangelinan

By.

w m

MITCHELL F. THOMPSON

P151024 RTT

12

Documents

1:15-cv-00009 #6