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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
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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
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