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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

William D. Pesch, Esq.

PTTT' V"v>,

& fe"'1- ?**. jSps'-"

DiSTRirT COURT OF GUAM

APR 1 3 2015
~i

JEAWWE G. QlliNATA
CLERK OF COURT

Guam Family Law Office

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173 Aspinall Avenue, Suite 203

Hagatna, Guam 96910
Telephone: (671) 472-8472
Facsimile: (671)477-5873

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Attorneys for Plaintiffs Kathleen M. Aguero and

Loretta M. Pangelinan

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IN THE DISTRICT COURT OF GUAM

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TERRITORY OF GUAM

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KATHLEEN M. AGUERO and LORETTA

CIVIL CASE NO.

M. PANGELINAN,
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Plaintiffs,
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v.

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EDDIE BAZA CALVO in his official capacity as

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Governor of Guam; and CAROLYN GARRIDO

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in her official capacity as Registrar in the Office

of Vital Statistics, Department of Public
Health and Social Services,

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Defendants.
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PLAINTIFFS' MEMORANDUM OF
LAW IN SUPPORT OF MOTION

FOR PRELIMINARY INJUNCTION

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Case 1:15-cv-00009 Document

6 Filed 04/13/15 Page 1 of 13
ORIGINAL

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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 law that preclude same-sex

couples from marriage or refuse to recognize theirlawful marriages.

FACTUAL BACKGROUND

As set forth in the Complaint, Plaintiffs are a committed same-sex couple. (Compl.,

ECF. No. 1.) Loretta M. ("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,

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and Lo runs her own maintenance and cleaning firm.2 Both Kate and Lo were born and raised

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on Guam.3 They are hard working life-long Guam residents with deep roots in the local

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community.4 Both Kate and Lo feel that it is important to give back to the community by

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helping to raise and care for children in need on Guam.5 Both are registered foster parents with

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

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numerous foster children through the years.6 They are currently caring for three foster

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children.7

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1 Declaration of Kathleen M. Aguero ("Aguero Decl."), at U1 (Apr. 13, 2015); Declaration of

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

2 Aguero Decl. at U2; Pangelinan Decl. at] 2.

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

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3
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Aguero Decl. atf 4; Pangelinan Decl. atT| 4.

Aguero Decl. at^ 5; Pangelinan Decl. atU5.
Aguero Decl. at ^ 6; Pangelinan Decl. atH6.
Aguero Decl. at U6; Pangelinan Decl. atH6.
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Case 1:15-cv-00009 Document 6 Filed 04/13/15 Page 2 of 13

Kate and Lo wish 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 bear witness to their love and commitment for each other in the same way that different-sex

couples in Guam are able to do through marriage." Kate and Lo believe that they should not

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have to leave Guam to have their love and commitment recognized.12

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

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to the Vital Statistics Office of DPHSS, in Mangilao, the office that processes marriage license

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applications on Guam.13 DPHSS officials refused to accept the application and handed the

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

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concerning "common law" unions; and (2) a copy of certain provisions from Tile 10 of the

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

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the legal union of persons of the opposite sex."14 At no time has any government official

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Aguero Decl. at U 7; 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 Tf 11; Pangelinan Decl. at ^j 11.

13 Aguero Decl. atIf 12; Pangelinan Decl. atTJ12.
14 Aguero Decl. at Tj 13; Pangelinan Decl. atII13.

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Case 1:15-cv-00009 Document 6 Filed 04/13/15 Page 3 of 13

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.

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Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

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Plaintiffs are entitled to a preliminary injunction. First, application of controlling law

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in this jurisdiction means that Plaintiffs have far more than a likelihood of success on the

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meritsbased on the controlling ruling by the Ninth Circuit inLatta v. Otter, 771 F.3d 456 (9th

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

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

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the U.S. Constitution. See also Windsor v. United States, 133 S. Ct. 2675, 2693-95 (2013)

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

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

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couples,'" deprives these families of equal dignity, and "degrade[s]" them, in addition to

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

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protection principles.").

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Case 1:15-cv-00009 Document 6 Filed 04/13/15 Page 4 of 13

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 and deprivation 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.

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

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Furthermore,

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

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Other courts have promptly issued preliminary injunctions in similar circumstances.

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

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

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of action); Guzzo v. Mead, 2014 WL 5317797 (D. Wyo. Oct. 17, 2014) (granting preliminary

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injunction enjoining enforcement of Wyoming's ban on marriage for same-sex couples a mere

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ten days after the filing of the original complaint); Marie v. Moser, 2014 WL 5598128 (D. Kan.

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

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than one month after the commencement of the action "[b]ecause Tenth Circuit precedent is

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binding on this Court...").

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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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Case 1:15-cv-00009 Document 6 Filed 04/13/15 Page 5 of 13

I.

THE NINTH CIRCUIT HAS HELD THAT STATES MAY NOT DENY

SAME-SEX COUPLES THEIR FUNDAMENTAL RIGHT TO MARRY;

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PLAINTIFFS ARE HIGHLY LIKELY TO SUCCEED ON THE MERITS

OF THEIR CLAIMS.

In Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) the Ninth Circuit ruled that Idaho's laws
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prohibiting same-sex couples from marrying the person they choose violates the Fourteenth
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Amendment. Upon the issuance of the Ninth Circuit's Opinion in Latta. multiple district courts
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across the Circuit expeditiously granted injunctive and declaratory relief against state laws,
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similar to Guam's Marriage Ban, barring same-sex couples from marriage as a result of the
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Ninth Circuit's clear pronouncement that laws barring same-sex couples from marriage are
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unconstitutional.
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See, e.g., Rolando v. Fox, 2014 WL 6476196, *4 (D. Mont. 2014) (Granting summary
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judgment invalidating Montana's ban on marriage for same-sex couples one month after Latta
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because "Latta represents binding Ninth Circuit precedent and provides the framework that this
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Court must follow."); Hamby v. Parnell, 2014 WL 5089399, *12, n.35 (D. Alaska 2014)
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(Granting summary judgment invalidating Alaska's ban on marriage for same-sex couples one
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week after Latta because "Latta is the controlling law of this Circuit."); Majors v. Home, 14 F.
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Supp. 3d at 1315 (D. Ariz. 2014) (Granting summary judgment invalidating Arizona's ban on
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marriage for same-sex couples ten days after Latta because "[t]his court is bound by decisions
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of the Court of Appeals for the Ninth Circuit.").

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Where "enforcement of [a] statute" has properly been invalidated as unconstitutional,

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"then so is enforcement of all identical statutes in other States, whether occurring before or
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after our decision." Am. Trucking Ass'ns v. Smith, 496 U.S. 167, 175 (1990) (Scalia, J.
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concurring); see also Windsor, 133 S. Ct. at 2691 (striking down a federal law that
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Case 1:15-cv-00009 Document 6 Filed 04/13/15 Page 6 of 13

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 from this Court only what Latta requires, which is a ruling enjoining the

enforcement of laws that prevent same-sex couples from marrying. 771 F.3d at 476. See also,

e.g., Preferred Communications v. City of Los Angeles, 13 F.3d 1327, 1333 (9th Cir. 1994)

("All government officials have a duty to uphold the 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

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

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protection clause.

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"Civil marriage is one of the cornerstones of our way of life. It allows individuals to

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

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unparalleled intimacy, companionship, emotional support, and security." Bostic v. Schafer, 760

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F.3d. 352, 384 (4th Cir. 2014). "Marriage is one ofthe 'basic civil rights ofman ...'" Loving v.

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

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535, 541 (1942)). It is "the most important relation in life" and of "fundamental importance for

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

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exercise this basic civil right.

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Plaintiffs' April 13, 2015 Memorandum of Points and Authorities in support of their

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

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

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Case 1:15-cv-00009 Document 6 Filed 04/13/15 Page 7 of 13

Plaintiffs respectfully incorporate by this reference as if fully set forth herein Parts 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 have met

their burden to show that they are likely to succeed on the merits.

II.

PLAINTIFFS ARE LIKELY TO SUFFER IRREPARABLE HARM IN

THE ABSENCE OF PRELIMINARY RELIEF.

As the Sixth Circuit noted in Planned Parenthood Ass 'n of Cincinnati v. City of
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Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987), a showing of a likelihood of success on the
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merits of a constitutional violation easily leads to a finding of the remaining factors to grant a
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preliminary injunction because: (1) "there is potential irreparable injury in the form of a
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violation of constitutional rights"; (2) "a likelihood that the Ordinance will be found
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unconstitutional [means] it is therefore questionable whether the City has any 'valid' interest in
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enforcing the Ordinance"; and (3) "the public is certainly interested in the prevention of
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enforcement of ordinances which may be unconstitutional."

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Defendants' continued enforcement of the marriage ban against the Plaintiffs violates
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their constitutional rights, which, without more, establishes irreparable harm as a matter of law.
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See, e.g., Elrod v. Burns, All U.S.347, 373 (1976) (holding that deprivation of constitutional
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rights "for even minimal periods of time, unquestionably constitutes irreparable harm");
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Sammartano v. First Judicial Dist. In andfor County of Carson City, 202 F.3d 959, 974 (9th
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Cir. 2002) (courts considering a preliminary injunction have consistently recognized the public
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interest in First Amendment principles); Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir.
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2001) ("When an alleged constitutional right is involved, most courts hold that no further
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showing of irreparable injury is necessary.") (citing 11A Charles Alan Wright et al., Federal
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Case 1:15-cv-00009 Document 6 Filed 04/13/15 Page 8 of 13

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.

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

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

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a public acknowledgement of the value, legitimacy, depth, and permanence of the married

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couple's relationship. A marriage "is a far-reaching legal acknowledgement of the intimate

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

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

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

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

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

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more difficult for the children to understand the integrity and closeness of their own family and

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its concord with other families in their community and in their daily lives." See Windsor, 133

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S.Ct. at 2694.

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Case 1:15-cv-00009 Document 6 Filed 04/13/15 Page 9 of 13

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 enforcement personnel to health insurance companies, "families"

defined by blood, adoption or marriageare afforded special treatment. By way of example

only, same-sex couples are denied family health insurance coverage; 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

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

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serious illness, including the priority to make medical decisions for an incapacitated spouse, the

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

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

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inheritance under the laws of intestacy and the right of a surviving spouse to an elective share.

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Given such pressing harms and the importance of the constitutional interests involved,

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

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

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

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

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

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

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Case 1:15-cv-00009 Document 6 Filed 04/13/15 Page 10 of 13

from the most "intimate" and "sacred" of life's relationships in the interim. Zablocki, 434 U.S.

at 384.

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." Richmond Med. Ctr. For

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

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Ass'n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987)). Indeed,

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

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

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See also Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002)

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(affirming the district court's holding that "a state is 'in no way harmed by issuance of a

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

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

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prerequisite to the grant of a preliminary injunction is that it serve the public interest. Again,

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

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interest.") (citations omitted).

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GovGuam is unquestionably trampling on Plaintiffs' fundamental right to marry

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pursuant to the Ninth Circuit's ruling in Latta. Accordingly, Plaintiffs seek an order that is

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Case 1:15-cv-00009 Document 6 Filed 04/13/15 Page 11 of 13

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

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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[.]").

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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 v. City of

Compared to the substantial harms suffered by Plaintiffs in absence of an injunction,

and to all ofthe 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 ofan 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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Case 1:15-cv-00009 Document 6 Filed 04/13/15 Page 12 of 13

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 and all 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 to marry and be recognized as lawfully married in Guam.

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Respectfully submitted this 13,h day ofApril, 2015.

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THOMPSON GUTIERREZ & ALCANTARA, P.C.

Attorneys for Plaintiffs Kathleen M. Aguero and
Loretta M. Pangelinan

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By.

wm ri
MITCHELL F. THOMPSON

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P151024.RTT

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