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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION Colleen Therese Condon and Anne Nichols Bleckley,
) ) ) Plaintiffs, ) ) v. ) ) Nimrata (“Nikki”) Randhawa Haley, in her ) official capacity as Governor of South ) Carolina; Alan M. Wilson, in his official ) Capacity as Attorney General; and Irvin ) G. Condon in his official capacity as ) Probate Judge of Charleston County, ) ) Defendants. ) __________________________________ )
Civil Action No. 2:14-cv-04010-RMG
MEMORANDUM OF GOVERNOR AND ATTORNEY GENERAL IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION AND ALTERNATIVE MOTION / REQUEST FOR STAY
Governor Nikki Haley and Attorney General Alan Wilson (Defendants) oppose Plaintiffs’ Motion for Preliminary Injunction for the reasons discussed below. This suit is barred and should not proceed due to multiple grounds not considered by the Fourth Circuit Court of Appeals’ same-sex marriage panel decision. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014). Those grounds include the Rooker-Feldman doctrine, the failure of the 2-1 Bostic panel decision to recognize and apply prior, controlling precedent of the Fourth Circuit, Federalism, the Eleventh Amendment, lack of standing to sue the Governor and the Attorney General as well as other doctrines warranting dismissal including abstention and comity to earlier filed federal proceedings. Plaintiffs are of the same-sex and seek marriage in this state. They object to a State Supreme Court ruling, discussed infra, that directed the Defendant, Judge Condon, not to issue them a marriage license.
State law does not allow or recognize same-sex marriages, and
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Plaintiffs challenge those provisions. S.C. Code Ann §§20-1-10 and 20-1-15; S.C. Const art. XVII, §15 (Attachment A to this Memorandum). This case not only presents the question of whether those laws are valid, but also whether this suit should be dismissed due to the above defenses. Although those defenses are dispositive, to the extent necessary, these Defendants argue against the precedent of Bostic on the merits of Plaintiffs’ challenge to South Carolina law. Our State’s laws are valid under the equal protection and due process clauses. Among other errors, the Bostic panel has misapplied the Loving v. Virginia, 388 U.S. 1 (1967) to alter an element historically inherent in marriage, a union of a man and a woman. The issue of same-sex marriage has proceeded through the Federal Courts in other states at an unprecedented pace. Centuries of precedent have been swept away in other jurisdictions in the space of only two or three years. Never have the Courts made judgments so quickly about an issue that had received little attention before now. But the legal proceedings are not over. The United States Supreme Court has not weighed in. Many Courts of Appeals have not decided the cases before them or are still in process in the District Courts. Although a 2-1 Panel of the Court of Appeals for the Fourth Circuit in Bostic has overturned Virginia’s same-sex marriage ban, that Panel did not consider defenses that are dispositive of the instant case, and the en banc Court of Appeals has not ruled on those defenses or the merits of the constitutional challenges. The defenses named above and discussed, infra, take this case outside of the Bostic precedent and warrant judgment for the Defendants. I JURISDICTIONAL AND OTHER BARS TO THIS SUIT The following grounds deprive this Court of jurisdiction or otherwise warrant dismissal of this suit or deference to other pending Federal litigation.
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A The Rooker-Feldman Doctrine Is A Jurisdictional Bar To This Action This Court lacks jurisdiction to proceed in this case because the Rooker–Feldman doctrine bars review of the following Order of the South Carolina Supreme Court in State ex rel Wilson v. Condon, No. 2014-002121, 2014 WL 5038396, at *1-2 (S.C. Oct. 9, 2014): Currently, the issue of whether Article XVII, Section 15 of the South Carolina Constitution . . . and Sections 20–1–10 through –15, violate the United States Constitution is actively under consideration by Judge Childs in the Bradacs case [.1. Katherine Bradacs and Tracie Goodwin v Haley, et al, Civil Action No. 3:13-cv02351-JFA] . . . Respondent and all other probate judges are hereby directed not to issue marriage licenses to same-sex couples pending a decision by the Federal District Court in Bradacs. (emphasis added) . Plaintiffs place this ruling at issue in their complaint in that allege that “Defendant Judge Condon declined to issue [them a marriage] license for the sole reason that the proceedings instituted by Defendant Wilson resulted in an order from the South Carolina Supreme Court forbidding the issuance of marriage licenses to same-sex couples before an order requiring such issuance had been entered by the United States District Court for the District of South Carolina.” Complaint, ¶ 23. Their Prayer asks that Judge Condon be enjoined in this action from enforcement of any provisions of South Carolina law that exclude same-sex couples from marriage. Therefore, they request review and relief squarely in conflict with the Supreme Court’s order. 1 0F
“The Rooker–Feldman doctrine . . . prohibits the lower federal courts from reviewing or rejecting state court judgments [and] serves as a jurisdictional bar to federal court review of each
1
Defendant Judge Condon, on Friday, asked the Supreme Court to amend its Order to apply to any other same-sex marriage case pending before the Federal District Court of South Carolina. At least until the Supreme Court changes its Wilson v. Condon order, this Court lacks authority to proceed in the instant case under Rooker-Feldman and should abstain, as discussed infra.
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of the federal claims alleged in the Complaint. . . . Except in limited circumstances not applicable here, the only federal court with the authority to reverse or modify the judgments of state courts is the Supreme Court itself. Exxon Mobil, 544 U.S. at 283 (citing 28 U.S.C. § 1257).” Stratton v. Mecklenburg Cnty. Dep't of Soc. Servs., 521 F. App'x 278, 288 (4th Cir. 2013) cert. denied, 134 S. Ct. 1290 (2014). Last year, the Honorable David Norton applied the Rooker–Feldman doctrine to bar review of State Court orders related to that matter. As he stated:, “this court must abstain from hearing an injunctive challenge to that [Supreme Court] decision under Rooker–Feldman. Only the United States Supreme Court can review the South Carolina Supreme Court's judgment that adoption by Adoptive Couple would be in the best interests of the child.” V.B. ex rel. Smith v. Martin, No. 2:13-CV-2073-DCN, 2013 WL 4018248, at *1 (D.S.C. July 31, 2013). “[T]he test[for application of Rooker-Feldman] is . . .whether the relief sought in the federal suit would “reverse or modify” the state court decree. Adkins v. Rumsfeld, 464 F.3d 456, 464 (4th Cir. 2006). Plaintiffs certainly request such relief because it is contrary to the Supreme Court’s Order that probate judges not issue marriage licenses pending the Bradacs decision. That Order was specific to the Bradacs case. It was not conditioned on other Federal litigation such as the instant, subsequently filed case, and an order in this case would conflict with that Order. Plaintiffs could have sought relief consistent with the Supreme Court’s Order.
As
intervening parties in the State v. Condon case, they could have petitioned for certiorari from that Order. They could have requested that the Supreme Court modify the Order to include any other federal litigation in this State.
They could have intervened in Bradacs and requested a
preliminary injunction in that case. They could ask this Court to certify the question to the Supreme Court of whether its Order would encompass this litigation (Rule 244, SCACR), but
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they have not done so. Instead, they seek relief in the instant case that is contrary to the Supreme Court’s Order in State v Condon. They cannot do so, and this Court lacks jurisdiction to enter an order in this case contrary to the State Supreme Court as that Order is now written. Although Plaintiffs argue that Bradacs is different because it asserts a claim for recognition of a District of Columbia marriage license, it requests that same-sex persons be allowed to marry in South Carolina. Moreover, the South Carolina Supreme Court expressly tied its directive to probate judges to the Bradacs litigation. Plaintiffs effort to distinguish Bradacs and criticism of the Defendants’ Petition that resulted in the Supreme Court order further demonstrates that they are launching a collateral attack on the ruling of the Supreme Court. Although the Supreme Court’s Order is clearly limited to Bradacs, if arguendo, this Court has questions regarding the scope of that Order, the Defendants Governor and Attorney General respectfully request that this Court certify those questions to the State Supreme Court pursuant to Rule 244. They believe that the Supreme Court would respond quickly to any such certification so that no significant delay would result from that process. B This Court Is Not Bound By Bostic’s Conclusion That Baker v. Nelson Need Not Be Followed By It; Further the Fourth Circuit Did Not Consider that Federalism Requires These Issues To Be Brought In State Court 1 Introduction Bostic is not binding on this Court with respect to the Fourth Circuit panel’s conclusion that it need not follow Baker v. Nelson, 409 U.S. 810 (1972). Baker dismissed an appeal from the Minnesota Supreme Court for want of a substantial federal question on the precise issue before Bostic and this Court: whether there is a federal constitutional right of same-sex couples
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to marry. See Baker, 191 N.W.2d 185 (Minn. 1971). In summarily dismissing the appeal in Baker, the Supreme Court also necessarily rejected the argument made by plaintiffs there that the right to marry in such instance is a fundamental right. However, the Fourth Circuit panel in Bostic held that Baker was no longer “binding precedent” because of “the significant doctrinal developments that occurred after the [Supreme] Court issued its summary dismissal in that case.” 760 F.3d at 375. This was a clear disregard by the panel of its own precedents, as well as an ignoring of the command of the Supreme Court in Hicks v. Miranda, 422 U.S. 332 (1975). In other words, it is clear that Bostic, although acknowledging that the issues in Baker were identical to those before it, ignored the well-established Fourth Circuit “prior panel rule” – that “one panel cannot overrule a decision by another panel.” McMellon v. United States, 387 F.3d 329, 332 (4th Cir. 2004) (citing cases). This rule requires “a panel to follow the earlier of conflicting opinions.” Id. Beginning in 1975, with the panel decision in Hogge v. Johnson, 526 F.2d 833, 835 (4th Cir. 1975), the Fourth Circuit, adhering to the mandate of the Supreme Court in Hicks v. Miranda, supra, found that the Supreme Court’s summary dismissal for want of a substantial federal question on the same issues is “a perfectly clear precedent that is binding on us.” Even though, in Hogge, the Fourth Circuit panel disagreed with the summary dismissal, and believed that a “substantial federal question” existed, former Supreme Court Justice Tom Clark – sitting as a Fourth Circuit panel member -- stated that the panel was “foreclosed by Hicks’ holding” that such a summary dismissal by the Supreme Court, constituted a decision on the merits and was, as a result, binding upon the panel. concurring).
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Fourth Circuit decisions have consistently applied this “prior panel” rule, established in Hogge, thus requiring that summary disposition by the Supreme Court must be followed -regardless of the panel’s view of the merits of the Supreme Court’s action. See, Thonen v. Jenkins, 517 F.2d 3, 7 (4th Cir. 1975) [“Although we agree . . . that the Supreme Court’s summary affirmance of a three judge court decision is not as strong precedent as a full Supreme Court opinion . . ., we also agree with the Second Circuit that ‘the privilege of disregarding every summary Supreme Court holdings rests with that court alone.’”]; Goldfarb v. Sup. Ct. of Va., 766 F.2d 859, 862 (4th Cir. 1985) [“The summary affirmance of this decision by the United States Supreme Court necessarily agreed that a rational basis lay beneath Rule 1A: 1(4)(d), and we may not re-open that foreclosed question.” (citing Hicks v. Miranda, supra)]; Idaho Assoc. of Naturopathic Physicians, Inc. v. U.S. Food and Drug. Adm., 582 F.2d 849, 853-854 (4th Circ. 1978) [reviewing a number of summary affirmances and dismissals by the Supreme Court on the issue and stating that “[i]n light of the decisions of the Supreme Court that we have reviewed, we find that the Naturopaths’ basic claim has been firmly, repeatedly and authoritatively rejected.”]; Repub. Party of N.C. v. Hunt, 991 F.2d 1202, 1204 (Phillips, J., dissenting from denial of rehearing en banc) [“While such a summary affirmance does not of course foreclose later, full consideration of the dispositive issue by the Supreme Court . . . the decision affirmed and its rationale are binding on this court until that happens”]; Westinghouse Elec. Corp. v. State of Md. Comm. On Human Relations, 520 F.Supp. 539, 547 (D. Md. 1981) [following Hicks and Hogge, the District Court adhered to summary dispositions of Supreme Court, concluding that only the Supreme Court could disregard these precedents].
None of these Fourth Circuit decisions
recognize that a Circuit Court or District Court is at liberty to decide that a summary decision by the Supreme Court has been abandoned or superseded by “doctrinal developments.”
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Accordingly, there is an irreconcilable conflict between Hogge and its progeny and Bostic in this regard. Applying the “prior panel rule,” set forth in McMellon, it is evident that Bostic is not binding precedent upon this Court with respect to its conclusion that Baker v. Nelson is no longer good law. Hogge and subsequent Fourth Circuit decisions, referenced above, adhere to the rule set forth in Hicks v. Miranda, supra that lower courts are bound to follow the Supreme Court’s summary decisions “‘until such time as the [Supreme] Court informs [them] that [they] are not.’” Hicks, 422 U.S. at 344. The Bostic panel ignored this rule, taking it upon itself to decide that “doctrinal developments” render Baker v. Nelson archaic or “abandoned,” and thus no longer applicable. In short, regardless of the merits of Plaintiff’s claims, Hogge and the subsequent decisions, referenced above, must be followed by this Court. Hogge and these other earlier panel decisions control here, thereby requiring adherence to Baker. Any subsequent “doctrinal developments,” found by Bostic, must be assessed by the Supreme Court, not by the Fourth Circuit, or by this Court. See Conde-Vidal v. Garcia-Padilla, ____ F.Supp. 2d ____, 2014 WL 5361987 (D.C.P.R. 2014) [Baker is binding on District Court]. Moreover, any conclusion by Bostic regarding federalism is not binding here, either. Bostic addressed the argument that a “federalism-based interest in defining marriage is a suitable justification for the Virginia Marriage Laws.” 760 F.3d at 378. However, the Fourth Circuit rejected this argument, concluding that United States v. Windsor, 133 S.Ct. 2675 (2013) “does not teach us that federalism principles can justify depriving individuals of their constitutional rights; it reiterates [Loving v. Virginia’s ] admonition that the states must exercise their authority without trampling constitutional guarantees. Virginia’s federalism-based interest in defining marriage cannot justify its encroachment on the fundamental right to marry.” 760 F.3d at 379.
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However, Bostic did not address the same federalism argument we are making in this case. Our argument, in contrast to Bostic, and recognized in Windsor and Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004), abrogated on other grounds, Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S.Ct. 1377 (2014), is based upon the “domestic relations exception,” applying the long-held view that “the federal courts, as a general rule do not adjudicate marital status even where there might otherwise be a basis for federal jurisdiction.” Windsor, supra, 133 S.Ct. at 2691. As one Court has put it, “[a] federal court presented with matrimonial issues or issues ‘on the verge’ of being matrimonial in nature should abstain from exercising jurisdiction so long as there is no obstacle to their full and fair determination in state courts.” American Airlines v. Block, 905 F.2d 12, 146 (2nd Cir. 1990). That is the case here. Indeed, scholars as well as courts, including the Fourth Circuit, have concluded that the “domestic relations exception” is applicable to federal question jurisdiction, thereby depriving a federal court of subject matter jurisdiction. As one leading scholar has recently concluded, there is no federal question jurisdiction to hear domestic relations matters, explaining that [t]he federal courts simply do not have the statutory federal question jurisdiction that would enable them to hear cases challenging the definition of marriage, divorce, alimony, child custody, or probate. These cases raised religious questions, which is why in England they were heard by the Ecclesiastical Courts and not by the common law courts or the courts of equity. Calabresi, The Gay Marriage Cases and Federal Jurisdiction (October 2, 2014), Northwestern Law and Econ. Research Paper No. 14-18; Northwestern Public Law Research Paper No. 14-50, at 47. Available at SSRN: http://ssm.com/abstract=2505514 or http://dx.doi.org/10.2139/ssm. 2505515. This analysis is entirely consistent with that of another scholar who has stated that “[n]ot infrequently, courts have dismissed federal question cases for lack of subject matter
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jurisdiction, citing the domestic relations exception.”
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Harbach, “Is The Family a Federal
Question?” 660 Washington and Lee L.Rev. 131 146, and cases collected at n. 59. Among the numerous cases cited by Professor Harbach is the Fourth Circuit decision in Wilkins v. Rogers, 581 F.2d 399, 403-404 (4th Circ. 1978). Wilkins involved, among other things, a wife’s suit against her former husband regarding repayment of money allegedly advanced during the marriage as well as support and maintenance. Plaintiff’s wife alleged “that she was a victim of unconstitutional sex-based discrimination sanctioned by the South Carolina court system.” Id. at 403. She sought to invoke the federal court’s original jurisdiction under both diversity, as well as federal question jurisdiction. The Fourth Circuit, however, applied the domestic relations exception to dismiss the case on both jurisdictional grounds, noting that “[i]t has long been held that the whole subject of domestic relations belongs to the laws of the state and not to the laws of the United States.” Id. Thus, according to the Fourth Circuit, “ . . . such disputes do not present a federal question, notwithstanding allegations of sexual discrimination. . . . Therefore, original jurisdiction over Wilkins’ claims does not lie.” Id. at 404. (emphasis added). While the Fourth Circuit went on to apply Pullman and other forms of abstention as well, it is clear, as Professor Harbach concludes, that the Wilkins case stands for the proposition that the “domestic relations exception” deprives federal courts of federal question jurisdiction. Again, the “prior panel rule” would govern here, requiring this Court to follow Wilkins instead of the Bostic decision. Like Baker v. Nelson, supra, which dismissed the same sex marriage issue “for want of a substantial federal question,” Wilkins dismissed a federal claim regarding a marital dispute, based upon alleged sex discrimination, for precisely the same reason as Baker – want of
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a federal question. Therefore, this Court lacks subject matter jurisdiction and is obligated to follow Wilkins, as well as Baker. In summary, the Fourth Circuit panel possessed no authority to disregard Baker, which constitutes the one Supreme Court decision on the merits regarding same-sex marriage. While the Fourth Circuit speculated as to “doctrinal developments,” i.e. subsequent decisions of the Supreme Court and how those cases may be applicable to the constitutional issue presented, application of Baker should have been all that was necessary to decide Bostic. The Court was not free to determine the Supreme Court’s “doctrinal developments.”
Nor is this Court.
Moreover, the Fourth Circuit panel did not consider the issue of subject matter jurisdiction or federalism as it relates to the longstanding domestic relations exception, as applied in both Wilkins, as well as Newdow and Windsor. We will discuss each of these issues in greater detail below. 2 Principles of Federalism dictate that this action is improperly brought in Federal Court As the Fourth Circuit has stated, “[i]t is well established that before a federal court can decide the merits of a claim, the claim must invoke the jurisdiction of the court.” Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006).
Such Art. III jurisdiction includes issues of
justiciability. Id. Federal courts, in order to satisfy the “‘. . . overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere . . . must put aside the natural urge to proceed directly to the merits of [an] important dispute and to ‘settle’ it for the sake of convenience and necessity.’” Hollingsworth v. Perry, 133 S.Ct. 2652, 2661 (2013), quoting Raines v. Byrd, 521 U.S. 811, 820 (1997). Moreover, in “quintessentially local issue[s]” which are “imbued with sufficient local character . . . state courts ought to be accorded
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comity from the federal courts with regard to its regulation.” Johnson v. Collins, 199 F.3d 710, 731 (4th Cir. 1999) (Luttig, J. concurring in judgment). We have discussed above that scholars, as well as the Fourth Circuit in Wilkins v. Rogers, supra, have concluded that the domestic relations exception deprives a federal court of federal question jurisdiction.
In this instance, this Court should dismiss this action, based upon
overriding principles of federalism – whether that analysis is based upon federal question jurisdiction, justiciability or abstention. Because this case seeks to decide the core question of two people’s marital status, it belongs in state court rather than in federal court, regardless of the legal theory upon which it is based. As only recently stated in United States v. Windsor, 133 S.Ct. supra, at 2691 (2013), “the federal courts, as a general rule, do not adjudicate marital status even where there might otherwise be a basis for federal jurisdiction.” For over a century, the United States Supreme Court, as well as lower federal courts, have concluded that actions concerning domestic relations, such as those deciding the status of marriage, are not properly brought in Federal Court, but are conclusively within the authority of state courts. Since the federal Constitution’s adoption, such actions have been deemed outside the province of federal law and equity courts, belonging instead to the state ecclesiastical courts. See State of Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 384 (1930). Of course, in South Carolina, the successor to the ecclesiastical court is the probate court.
Thus, based upon
compelling interests of lack of federal question jurisdiction, and federalism, this case should be dismissed as improperly brought here, rather than in the courts of South Carolina. As Judge Posner recognized in Jones v. Brennan, 465 F.3d 304 (7th Cir. 2006), the “domestic relations exception” applies equally to federal questions. Such exception was always deemed applicable to diversity cases, because domestic relations adjudications do not involve
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law or equity dispositions. Judge Posner points out that the statute relating to federal questions uses the same “common law or equity” language as the diversity statute. Thus, as he concludes, the domestic relations exception was intended “to apply to federal question cases too.” 465 F.3d at 307. While Judge Posner relied upon a federal question interpretation, similarly to that of the Fourth Circuit’s decision in Wilkins’ jurisdictional analysis, other courts have looked to the foundations of federalism – particularly justiciability and abstention -- in concluding that domestic relations issues are more properly a matter for state courts to decide, even where federal questions are deemed to be involved. Harbach, supra at 165-175. Indeed, Elk Grove United School Dist. v. Newdow, supra is strongly supportive of this federalism analysis. Newdow was a case clearly involving a federal question – a claim that recitation of the Pledge of Allegiance violated the Establishment Clause with respect to Petitioner’s daughter, by using the phrase “under God.”
The Supreme Court noted that
Newdow’s parental status was “defined by California domestic relations law.” 542 U.S. at 16. (emphasis added).
In the Supreme Court’s view, “it is improper for the federal courts to
entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff’s claimed standing.” Thus, the Court concluded that “[w]hen the hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than to reach out to resolve a weighty question of federal constitutional law.” 542 U.S. at 17 (emphasis added). See also Ankenbrandt v. Richards, 504 U.S. 609, 716 (Blackman, J. concurring) [The “core” of domestic relations adjudication “involves declarations of status, e.g. marriage, annulment, divorce, custody and paternity.”].
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Justice Stevens, writing for the Court in Newdow, recognized there are certain occasions when a federal court absolutely must intercede with respect to domestic relations issues, such as those involving racial classifications. However, Newdow noted that such circumstances are indeed extraordinary and rare. According to Justice Stevens, . . . [w]hile rare instances arise in which it is necessary to answer a substantial federal question that transcends or exists apart from the family law issue, see e.g. Palmore v. Sidoti, 446 U.S. 429, 432-434 . . . (1984), in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts. 542 U.S. at 13 (emphasis added). As the Court also noted in Palmore v. Sidoti, racial classifications “are subject to the most exacting scrutiny . . .” and require justification in the form of a compelling state interest. By contrast, the Court has previously concluded that discrimination, based upon one’s sexual orientation, must bear a rational relationship to a legitimate government purpose.” Romer v. Evans, 517 U.S. 620, 635 (1996). Romer employed a rational basis test in striking down an amendment to the Colorado Constitution which permitted discrimination based upon one’s sexual orientation. See also Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) [federal policy of “Don’t Ask, Don’t Tell,” does not create a suspect class, and is thus subject to rational basis scrutiny and does not burden a fundamental right].
Thus, in this case, involving alleged
discrimination based upon sexual orientation, the “general” rule enunciated in Newdow – that the federal courts “leave delicate issues of domestic relations to the state courts” -- is controlling. Accordingly, as Newdow mandates, this case should be dismissed on grounds of federalism. Lower federal courts have applied Newdow to conclude that these courts should not hear a case, despite federal claims. In Smith v. Huckabee, 154 F.Appx. 552, 555 (8th Cir. 2005), the Court dismissed a § 1983 suit, citing Newdow. In A.N. and D.N. v. Williams, 2005 WL 3003730
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(M.D. Fla. 2005), the Court noted it should “defer to the state courts in matters of family law.” And, in Whiteside v. Neb. State Health and Human Services, 2007 WL 2123754 (D. Neb. 2007), the Court dismissed a § 1983 action pursuant to the domestic relations exception, based upon Newdow. The recent Supreme Court decision, United States v. Windsor, supra is fully supportive of Newdow’s analysis.
In Windsor, New York recognized same-sex marriages performed
elsewhere, as well as those in that state.
However, the federal Defense of Marriage Act
(“DOMA”) required that, for federal purposes, “marriage” means “only a legal union between one man and one woman as husband and wife. . . .” In the words of the Supreme Court, “[w]hat the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.” As a result, “DOMA, because of its reach and extent, departs from [the] . . . history and tradition [of the federal government] of reliance on state law to define marriage.” 133 S.Ct. at 2392. The Windsor Court, sensitive to these federalism concerns in the area of domestic relations, reviewed in detail the longstanding recognition by the Court that, except for deprivation of constitutional rights, such as involving racial discrimination, domestic relations is “‘an area that has long been regarded as a virtually exclusive province of the States.’” Id. at 2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975)). As explained by the Supreme Court, [t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “[p]rotection of offspring, of property interests, and the enforcement of marital responsibilities.” [citing Williams v. North Carolina, 317 U.S. 287, 298 (1942)]. . . . “[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” Haddock v. Haddock, 201 U.S. 562, 575, 26 S.Ct. 525, 50 L.Ed. 867 (1906); see also In re Burrus, 136 U.S. 586, 593-594, 10 S.Ct. 850, 34 L.Ed. 500 (1890) (“The whole subject of
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domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States”). . . . The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted for common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.” Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-384, 50 S.Ct. 154, 74 L.Ed. 489 (1930). Id. In short, because DOMA -- a federal act -- interfered with New York’s determination as to what constituted a valid marriage, it was necessary for the Supreme Court to step in. As one commentator has noted, “DOMA was an unusual federal intrusion into an issue previously reserved for the states . . . [i]n fact, before DOMA’s enactment in 1996, the federal government had ‘by history, and tradition’ relied on the states’ determination of what constituted marriage.” Mir, “Windsor and Its Discontents . . .,” 64 Duke Law Journal, 53, 58 (2014). According to Justice Kennedy, [t]he responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. Id. at 2693 (emphasis added). In other words, Windsor involved “interference [by the federal government] with traditional state prerogatives,” i.e. the status of the marriage relationship. Kitchen v. Herbert, 755 F.3d 1193, 1236 (10th Cir. 2014). As Chief Justice Roberts observed in his Windsor dissent,
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[t]he dominant theme of the majority opinion is that the Federal Government’s intrusion into an area “central to state domestic relations law, applicable to its residents and citizens” is sufficiently “unusual” to set off alarm bells. . . . [I]t is undeniable that [the majority opinion] . . . is based on federalism. 133 S.Ct. at 2697 (Roberts, C.J. dissenting). The Chief Justice concluded that the Court’s opinion in Windsor is based upon the “‘historic and essential authority to define the marital relation,’” allowing states “to continue to utilize the traditional definition of marriage.” Id. at 2696. Scholars agree with Chief Justice Roberts’ reading that Windsor is based primarily upon federalism. As has been stated, “. . . Justice Anthony Kennedy’s majority opinion in Windsor left little doubt that federalism principles were crucial to the results.
DOMA was
unconstitutional not simply because it discriminated against same-sex couples who were legally married in New York, “but because it intruded on the states’ sovereign authority to define marriage for themselves.” Young and Blendel, “Federalism, Liberty, and Equality in United States v. Windsor,” 2013 Cato Supreme Court Review, 117, 118 (2013-14). As one scholar has correctly observed, “as a federalism-in-family law decision, Windsor can be linked with a long line of decisions stressing federal deference to state authority to regulate family matters . . . such as Elk Grove Unified School District v. Newdow, [supra] . . . United States v. Morrison, [529 U.S. 598 (2000)] . . . Jones v. United States, [529 U.S. 848 (2000)] . . . United States v. Lopez, [514 U.S. 549 (1995)] . . . and United States v. Yazell, [382 U.S. 341 (1966)].” Wardle, Reflection on Equality in Family Law, 1385 Mich. St. L. Rev. 1422 (2013). As Judge Duffy put it in Norris v. Singletary, 2010 WL 331766 (D.S.C. 2010) “ . . . federal appellate courts have held that federal district courts ‘may abstain for reasons of comity and common sense from cases better handled by state courts having authority over matrimonial and family matters.’”
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Accordingly, it is important to note that only last year, the Court reaffirmed the principle that individual states should determine the status of a marriage, whether that marriage consists of the traditional relationship, or one which includes the legal union between the same sexes. In South Carolina, by adopting Art. XVII, § 15, voters supported the traditional definition of marriage by almost 80%, reinforcing “the right of citizens to debate so they can learn and decide and then, through the political process act in concert. . . .” See Schuette v. Coalition to Defend Affirmative Action, 134 S.Ct. 1623, 1636-7 (2014). Such is the province of the States, rather than the federal courts. According to Newdow, as well as Windsor, federal courts must honor the State’s sovereign right in this area, notwithstanding that a constitutional challenge may be involved. The state courts may – and are required to – hear such challenges. Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975) [state judges are bound by federal law and must “remain faithful to their constitutional responsibilities” under Art. VI of the federal Constitution.]; See also In re Estate of Mercer v. Bryant, 288 S.C. 313, 318, 342 S.E.2d 591, 593 (1986) [“We hold that S.C. Code Ann. § 21-7-480 (1976) is unconstitutional in its entirety because it violates the equal protection clause of the United States Constitution.”]. In this instance, the language contained in Art. XVII, § 15 has never been interpreted by the courts in South Carolina. South Carolina’s courts have not yet defined the term “contracts or other legal instruments” as employed therein. Thus as in Newdow, there will undoubtedly be “family rights that are in dispute” with respect to the scope of Art. XVII, § 15. As in Newdow, “hard questions are sure to affect the outcome,” particularly where a South Carolina court would have to address the question of the breadth of the phrase “contracts or other legal instruments.” Such a contract provision was not contained in the constitutional amendment at issue in Bostic and its phraseology could be deemed to have constitutional
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significance in this case. Compare Romer and Windsor, supra [finding animus against groups based upon sexual orientation]. The protection of rights of contract in the South Carolina Constitution suggests no such animus here. Notwithstanding Plaintiff’s federal constitutional claims, such claims are thus intertwined with “family law rights” in South Carolina, not yet defined by state courts. Deference to the courts of South Carolina in this important area of domestic relations does not mean that the state courts will not consider nor adjudicate the important constitutional claims raised by this case. To the contrary, our South Carolina courts will certainly do so. However, at the same time, state courts must be allowed to define the scope of domestic relations rights in this area. Windsor’s reliance upon federalism principles is incorrectly distinguished by the Fourth Circuit in Bostic. Contending that “Windsor is actually detrimental” to any federalism argument, the Fourth Circuit quoted from Windsor that “‘state laws defining and regulating marriage, of course, must respect the constitutional rights of persons. . .’” citing Loving v. Virginia, supra. Loving, however, involved a criminalization of Virginia’s anti-miscegenation laws, based upon a racial classification, not an effort to define marriage in its traditional form between a man and a woman. Under the Fourth Circuit’s analysis, principles of federalism could never be applied by federal courts if constitutional rights are alleged. However, the Supreme Court, through Justice Black, has consistently recognized that principles of federalism do, . . . not mean blind deference to ‘States Rights’ any more than it means centralization of control over every important issue in our National Government and its courts. . . . What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of states.
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Younger v. Harris, 401 U.S. 37, 44 (1971). As the Court has emphasized, “‘state courts have the solemn responsibility equally with the federal courts’ to safeguard constitutional rights. . . .” Trainor v. Hernandez, 431 U.S. 434, 443, (quoting Steffel v. Thompson, 415 U.S. 452, 460-1 (1974). As noted above, the federalism argument we are asserting here – based upon the “domestic relations exception” – was never considered in Bostic. Whether this exception is viewed as an issue of federal question jurisdiction, or an issue of justiciability or abstention, it is nevertheless applicable. This Court should stay its hand to allow the state courts to resolve the status of marriage, uniquely a province of the state courts, rather than the federal courts. As already noted, the Fourth Circuit has applied this “domestic relations exception” to a constitutional claim, based upon alleged sex discrimination. In Wilkins v. Rogers, supra, the Court refrained from ruling upon a question of sex discrimination. Federal question jurisdiction, as well as diversity was invoked. However, the Fourth Circuit found that federal courts should not hear such claims: [i]t has long been held that the whole subject of domestic relations belongs to the laws of the state and not to the laws of the United States. Ex Parte Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 34 L.Ed. 500 (1890). Thus, original jurisdiction of suits primarily involving domestic relations is improper, notwithstanding that the parties are residents of different states. E.g. Albanese v. Richter, 161 F.2d 688 (3d 1947), cert. denied, 332 U.S. 782, 68 S.Ct. 49, 92 L.Ed. 365 (1947). And such disputes do not present a federal question, notwithstanding allegations of sexual discrimination. . . . Therefore, original jurisdiction over Wilkins’ claims does not lie. 581 F.2d at 403-404. But see, U.S. v. Johnson, 114 F.3d at 476 (4th Circ. 1997). In short, this Court should refrain from injecting this Court into this case and defer to the state courts based upon Newdow and Windsor, as well as Wilkins v. Rogers. The issue here, at its core, is the status of marriage. Federal courts not only lack federal question jurisdiction to
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adjudicate these issues, but are ill-equipped to address these kinds of domestic relations questions. Art. XVII, § 15 has never been interpreted by the courts of South Carolina. Rather than a rush to judgment, this case should be decided in the proper state court – the court which has traditionally handled questions relating to marriage. This analysis is fully supported by the Supreme Court’s decision in Baker v. Nelson, 409 U.S. 810 (1972), which dismissed virtually identical issues to the claims now pending before this Court “for want of a substantial federal question.” For the reasons that follow, Baker remains binding upon this Court and fully buttresses the foregoing authorities applying principles of jurisdiction, as well as federalism by applying the domestic relations exception. In Baker, two men sought a marriage license. 191 N.W.2d 185 (Minn. 1971). However, Minnesota law provided that marriage would be recognized only between a man and a woman. The Minnesota statute was challenged on the basis of the Due Process and Equal Protection Clauses, as well as allegedly offending the First, Eighth and Ninth Amendments. The Minnesota Supreme Court stated that “[t]hese constitutional challenges have in common the assertion that the right to marry without regard to the sex of the parties is a fundamental right of all parties and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” 191 N.W.2d at 186. The Court reviewed Supreme Court decisions, particularly Skinner v. Oklahoma, 316 U.S. 935 (1942), Griswold v. Connecticut, 381 U.S. 479 (1965), and Loving v. Virginia, supra. According to the Court, Loving does indicate that not all restrictions upon the right to marry are beyond the reach of the Fourteenth Amendment. But in common sense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.
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191 N.W.2d at 187. It is important to note that the Minnesota Supreme Court specifically rejected all of Plaintiff’s constitutional challenges.
The Court found no Due Process violation, relying
principally upon Skinner. With respect to the Equal Protection claim, the Court concluded that “[t]he equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry. There is no irrational or invidious discrimination.” Id. at 187. Plaintiffs then appealed the Minnesota Supreme Court’s decision to the United States Supreme Court. The Plaintiffs’ Jurisdictional Statement raised three separate questions to the Supreme Court: (1) whether the State’s “refusal to sanctify appellant’s marriage [between the same sexes] deprives appellants of their liberty to marry and of their property without due process of law under the Fourteenth Amendment”; (2) whether the State’s refusal, pursuant to Minnesota marriage statutes, to sanctify appellant’s [same-sex] marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment; and (3) whether the State’s “refusal to sanctify appellant’s [same-sex] marriage deprives appellants of their right to privacy under the Ninth and Fourteenth Amendments.” Baker, Jurisdictional Statement No. 71-1027, p. 3 (Feb. 11, 1971). Importantly, the Supreme Court “dismissed [the appeal] for want of a substantial federal question.” Baker v. Nelson, 409 U.S. at 810. The Supreme Court’s summary dismissal represents a ruling on the merits and is binding upon this Court and all lower federal courts. In Hicks v. Miranda, supra, the Supreme Court addressed the effects of a dismissal by that Court for lack of a substantial federal question. Among other questions raised in Hicks was the issue of whether a summary dismissal, for want
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of a substantial federal question, “was binding on the District Court and required that court to sustain the California obscenity statute and to dismiss the case.” 422 U.S. at 343. The Supreme Court concluded that such summary dismissal was indeed binding. According to the Hicks Court, [w]e agree with appellants that the District Court was in error in holding that it would disregard the decision in Miller II. That case was an appeal from a decision by a state court upholding a state statute against federal constitutional attack. A federal constitutional issue was properly presented, it was within our appellate jurisdiction . . . and we had no discretion to refuse adjudication of the case on its merits as would have been true had the case been brought here under our certiorari jurisdiction. We are not obligated to grant the case plenary jurisdiction, and we did not; but we were required to deal with its merits. We did so by concluding that the appeal should be dismissed because the constitutional challenge to the California statute was not a substantial one. The three judge court was not free to disregard this pronouncement. As Mr. Justice Brennan once observed, (v)otes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes, on the merits of a case. . . .; [citation omitted]. The District Court should have followed the Second Circuit’s advice . . . that ‘unless and until the Supreme Court should instruct otherwise, inferior courts had best adhere to the view that if a court has branded a question as insubstantial, it remains so except when doctrinal developments indicate otherwise’; and later in Doe v. Hodgson, 478 F.2d 537 . . . that the lower courts are bound by summary decisions by this Court “until such time as Court informs (them) that they are not.” 422 U.S. at 343-345. (emphasis added). Moreover, the Court has recognized that a summary dismissal “without doubt reject[s] the specific challenges presented in the statement of jurisdiction” and “prevent[s] lower courts from coming to opposite conclusions [1] on the precise issues presented and [2] necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977). The lower court must determine “the precise legal questions and facts presented in the jurisdictional statement.” Windsor v. U.S., 833 F. Supp.2d 394, 399 (S.D.N.Y. 2012).
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The Fourth Circuit has also recognized the binding effect of summary dismissals by the Supreme Court. In Hogge v. Johnson, supra, the Fourth Circuit said this: . . . the United States Supreme Court has spoken to the question among the circuits with respect to the meaning to be accorded to the dismissal for want of a substantial federal question. Such is a decision on the merits binding upon the inferior federal courts. It is stare decisis on issues properly presented to the Supreme Court and declared by that court to be without substance. Hicks v. Miranda, 422 U.S. 332…. (1975). The Hogge Court then proceeded to examine the issues presented to the Supreme Court which resulted in the summary dismissal. The Court concluded that the “summary dismissal of the appeal in Kisley [187 S.E.2d 168 (1972)] is a perfectly clear precedent that is binding upon us.” 526 F.2d at 835. See also Idaho Assoc. of Naturopathic Physicians, Inc. v. U.S. Food and Drug. Adm., 582 F.2d at 853-854 [“In light of the decisions of the Supreme Court that we have reviewed [summary dispositions], we find that the naturopaths’ basic claim has been firmly, repeatedly, and authoritatively rejected. Because we discern nothing in dictating that their position, once labeled insubstantial, should now be considered otherwise, we affirm the judgments of the district court].” However, with respect to the binding force of Baker, the Fourth Circuit, in Bostic, supra took it upon itself to disregard its own precedents, as well as the directive of the Supreme Court in Hicks v. Miranda, supra, and other cases. The Fourth Circuit panel assumed the role reserved to the Supreme Court when it cited Windsor, and noted that Windsor “did not discuss Baker in its opinion or during oral argument.” 760 F.3d at 374. Of course, as discussed above, Windsor was not about the merits of the same-sex issue, but concerned the right of the individual state to determine the status of marriage without federal interference. Moreover, the Fourth Circuit relied upon an off-hand remark by Justice Ginsberg in the oral argument in Hollingsworth v. Perry, supra, a case which was resolved based not upon the
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merits of the same-sex marriage issue, but upon standing. See 760 F.3d, Id. at n. 5. Then, the Bostic Court, while acknowledging that Baker addressed “the precise issues” before it, 760 F.3d at 373, proceeded to review the Supreme Court’s sex discrimination cases since Baker, concluding that [i]n light of the Supreme Court’s apparent abandonment of Baker and the significant doctrinal developments that occurred after the Court issued its summary dismissal in that case, we decline to view Baker as binding precedent and proceed to the meat of the opponents’ Fourteenth Amendment arguments. 760 F.3d at 375. However, as discussed, the Supreme Court recognized in Hicks and other cases that a Circuit Court of Appeals or a District Court may not make such an assessment regarding the Supreme Court’s “doctrinal developments.” Such is a matter for the Supreme Court, rather than lower federal courts, to determine. As the Supreme Court warned in Agostini v. Felton, 521 U.S. 203 (1997), [w]e do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas [490 U.S. 477], supra at 484. . . (1989)]. 521 U.S. at 237. In the context of considering the question of same-sex marriage, unlike Bostic, a number of courts have concluded that Baker v. Nelson is binding upon them. See McConnell v. Nooner, 547 F.2d 54, 56 (8th Circ. 1976) [“The District Court dismissed this action on the basis that Baker v. Nelson . . . is dispositive of the issues raised therein. We agree.”]; Wilson v. Ake, 354 F.Supp. 2d 1298, 1304-1305 (M.D. Fla. 2005) [“Although Baker v. Nelson is over thirty (30)
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years old, the decision addressed the same issues presented in this action, and this Court is bound to follow the Supreme Court’s decision.”]; Anderson v. King County, 138 P.3d 963 (Wash. 2006) (en banc) (Alexander, C.J., concurring) [referencing Baker, and noting that the Supreme Court dismissed the appeal for want of a substantial federal question: “Thus, the same-sex union as a constitutional right argument was so frivolous as to merit dismissal without further argument by the Supreme Court. A similar result is required today.”]; Donaldson v. State of Montana, 292 P.3d 364, 371, n. 5 [referencing cases deeming Baker as binding]; Morrison v. Sadler, 821 N.E.2d 15, 19 (Ind. App. 2005) [“There is binding United States Supreme Court precedent that state bans on same-sex marriage do not violate the United States Constitution.”]; Lockyer v. City and County of San Francisco, 95 P.3d 459, 503 (Cal. 2004) (Dennard, J., concurring and dissenting) [“Indeed there is a decision of the United States Supreme Court, binding on all other courts and public officials that a state law restricting marriage to opposite-sex couples does not violate the federal Constitution’s guarantees of equal protection and due process of law.”]. Importantly, the United States District Court for the District of Puerto Rico has determined that Baker is binding in this same context. In Conde-Vidal v. Garcia-Padilla, supra, the Court concluded that “. . . plaintiff’s constitutional claim challenging the Puerto Rico Civil Code’s recognition of opposite-gender marriage fail to present a substantial federal question, and this Court must dismiss them.” Id. at 6. According to the Court: [t]he First Circuit expressly acknowledged – a mere two years ago – that Baker remains binding precedent “unless repudiated by subsequent Supreme Court precedent.” Massachusetts v. U.S. Dept. of Health and Human Services, 682 F.3d 1, 8 (1st Cir. 2012). According to the First Circuit, Baker presents the adoption of arguments that “presume or rest on a constitutional right to same-sex marriage.” Id.
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Indeed, in oral argument in Hollingsworth v. Perry, supra, Justice Scalia recognized Baker v. Nelson as a binding decision on the merits. He asked attorney Ted Olson the following: I’m curious when did it become unconstitutional to exclude [gay] . . . couples from marriage? 1791, 1868, when the Fourteenth Amendment was adopted? . . . [s]ome time after Baker [v. Nelson was decided in 1972], where we said it didn’t even raise a substantial federal question? When – when – when did the law become this? Transcript of Oral Argument, at 38, Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) (No. 12-144) (quoting Justice Scalia). Thus, contrary to the Fourth Circuit’s disregard of Baker in Bostic, at least one member of the Supreme Court does not appear to believe that Baker has been “abandoned” by “doctrinal developments.” This resolution as to the continuing viability of Baker as not raising a “substantial federal question” is for the Supreme Court, not the Fourth Circuit nor this Court to determine. Accordingly, the refusal of the Fourth Circuit in Bostic, to follow the directive of the Supreme Court in Baker, based upon its own assessment of Supreme Court precedent, is contrary to Hicks, Agostini, as well as the Fourth Circuit’s own cases. As discussed above, Bostic ignored the well established “prior panel rule,” and ignored Hogge, requiring the courts of the Fourth Circuit to adhere to summary rulings by the Supreme Court. The issue of bans upon same-sex marriage has not yet been addressed by the Supreme Court except in Baker v. Nelson’s dismissal for want of a substantial federal question. All of the issues including Plaintiff’s constitutional claims here, were addressed by the Minnesota Supreme Court, were raised in the Baker Jurisdictional Statement to the Supreme Court, and were thus resolved in Baker’s summary disposition. The impact of Loving v. Virginia, supra, upon the validity of same-sex marriage was specifically raised to the Supreme Court, as were the Equal Protection and Due Process claims. The Fourth Circuit panel was not free to disregard Baker, based upon its perception that
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Baker was outdated or not in step with subsequent precedent. Agostini, supra. Baker was binding upon the Fourth Circuit and this Court as well. Thus, Baker is entirely consistent with the recognition of the long-standing “domestic relations exception” and the principles of federalism applied in Newdow and Windsor. Indeed, as Wilkins emphasizes, domestic issues intertwined with federal constitutional claims, such as gender discrimination, “do not present a federal question.” Wilkins, 581 F.2d at 403-404. Regardless of Baker’s continuing viability, however, the overriding principles of federalism, discussed above, require dismissal of this case. The core question in this case is the status of a marriage. Both Newdow and Windsor strongly militate in favor of this matter being decided in the state courts, rather than this Court. Newdow and Windsor reinforce the principle that domestic relations -- here the “core” determination of the status of marriage – remains within the province of the States, rather than with the federal courts. As Newdow emphasizes, “the prudent course is for the federal court to stay its hand rather than to reach out to resolve a weighty question of federal constitutional law.” 542 U.S. at 17. And, as Windsor stresses, “[t]he significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning.” 133 S.Ct. at 2691. According to the Supreme Court in Windsor, “[t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests and the enforcement of marital responsibilities.’” 133 S.Ct. at 2691. Windsor was based upon federal interference with New York’s sovereign determination of the definition of marriage in that State. Based upon these authorities, the Complaint should be dismissed. As the Court in Newdow well summarized, “[d]omestic relations are preeminently matters of state law.” 542 U.S. at 12 (quoting Mansell v. Mansell, 490 U.S. 581, 587 (1989)). And, as the Fourth Circuit
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recognized in Wilkins, domestic relations issues “do not present a federal question, notwithstanding allegations of sexual discrimination.” C The Eleventh Amendment Bars this Suit Against These Defendants Suit is barred against the defendants under the Eleventh Amendment because they lack specific enforcement authority regarding South Carolina’s same-sex marriage provisions. As stated in McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010): The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The present suit is thus barred unless it falls within the exception announced by the Supreme Court in Ex parte Young, 209 U.S. 123 (1908), which permits a federal court to issue prospective, injunctive relief against a state officer to prevent ongoing violations of federal law, on the rationale that such a suit is not a suit against the state for purposes of the Eleventh Amendment. Id. at 159–60, 28 S.Ct. 441. “The requirement that the violation of federal law be ongoing is satisfied when a state officer's enforcement of an allegedly unconstitutional state law is threatened, even if the threat is not yet imminent.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 330 (4th Cir.2001) (citation omitted). The Ex parte Young exception is directed at “officers of the state [who] are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings ... to enforce against parties affected [by] an unconstitutional act.” Ex parte Young, 209 U.S. at 155–56 (emphasis added). Thus, we must find a “special relation” between the officer being sued and the challenged statute before invoking the exception. Id. at 157, 28 S.Ct. 441; Gilmore, 252 F.3d at 331. This requirement of “proximity to and responsibility for the challenged state action,” S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324, 333 (4th Cir.2008), is not met when an official merely possesses “[g]eneral authority to enforce the laws of the state,” id. at 331 (citation omitted). The special-relation requirement protects a state's Eleventh Amendment immunity while, at the same time, ensuring that, in the event a plaintiff sues a state official in his individual capacity to enjoin unconstitutional action, “[any] federal injunction will be effective with respect to the underlying claim.” Id. at 333. (emphasis added).
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Also, as stated in in Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001): Ex parte Young requires a “special relation” between the state officer sued and the challenged statute to avoid the Eleventh Amendment's bar. Ex parte Young, 209 U.S. at 157. “General authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law.” Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir.1996) (internal quotation marks omitted). Thus, “[t]he mere fact that a governor is under a general duty to enforce state laws does not make him a proper defendant in every action attacking the constitutionality of a state statute.” Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir.1979). Here, although Governor Gilmore is under a general duty to enforce the laws of Virginia by virtue of his position as the top official of the state's executive branch, he lacks a specific duty to enforce the challenged statutes. Thus, we vacate the judgment against him and remand with instructions that the district court dismiss him as a defendant in this action. The fact that he has publicly endorsed and defended the challenged statutes does not alter our analysis. The purpose of allowing suit against state officials to enjoin their enforcement of an unconstitutional statute is not aided by enjoining the actions of a state official not directly involved in enforcing the subject statute.
The Ex parte Young exception to Eleventh Amendment immunity does not apply to either defendant because they do not possess more than “general authority” to enforce the laws of the State. Section 20-1-15 and art. XVII, §15 do not provide the Attorney General or the Governor with any specific enforcement authority regarding those marriage provisions, nor do those provisions even reference those officers or create any penal provisions for them to enforce. The Attorney General’s general authority as the State’s chief prosecuting officer (S.C. Const. Art. V, § 24; State v. Long, 406 S.C. 511, 753 S.E.2d 425 (2014) and as the “chief law officer of the State” (State ex rel. Condon v. Hodges, 349 S.C. 232, 239, 562 S.E.2d 623, 627 (2002)) does not give him “proximity to and responsibility for the challenged state action” so as to avoid the bar of the immunity. McBurney, supra. Similarly, the Governor’s authority as “chief Magistrate” (art. IV, §1) does not create for her a special relationship to the laws at issue and subject her to
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the Ex Parte Young exception nor does any super. See Charleston Cnty. Sch. Dist. v. Harrell, 393 S.C. 552, 561, 713 S.E.2d 604, 609 (2011);
2 1F
Waste Management, supra. Certainly, neither
Defendant has the authority to issue a marriage license under state law to anyone or to grant recognition of marriages entered out-of-State. §20-1-230 (judge of probate or clerk of court issues licenses). A Virginia District Court, other than the one that considered Bostic, supra, recently relied on McBurney and Waste Management to reach a similar decision as to that state’s Governor in a same-sex marriage case. Harris v. McDonnell, 988 F. Supp. 2d 603, 611 (W.D. Va. 2013). As stated in that case, “Virginia Governor's general supervisory authority over the Commonwealth's executive branch does not constitute a special relation to the challenged same-sex marriage ban. The Virginia Governor has insufficient proximity to and responsibility for Virginia's marriage laws, and plaintiffs have not shown any involvement by the Governor in the enforcement of these laws.” Id. Robicheaux v. Caldwell, 986 F. Supp. 2d 749, 752 (E.D. La. 2013), reconsideration denied (Jan. 13, 2014), made a similar conclusion as to the Louisiana Attorney General’s immunity. The Court found that “[t]he Attorney General's sweeping responsibility to enforce the laws of the State of Louisiana lacks the Ex parte Young specificity nexus between the Attorney General and the alleged unconstitutional provisions that is essential to defeat sovereign immunity.”
2
“Nothing in School District's complaint demonstrates a nexus between Governor or his authority and Act 189. Instead, School District only alleges that the Governor's ample executive powers render him an appropriate defendant in any suit where the constitutionality of a statute is challenged. This is an insufficient reason to name the Governor as a party defendant.” Id.
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These cases compel the same conclusion here. The Governor and the Attorney General should be dismissed because they lack a special relation to the laws at issue so as to be subject to the Ex Parte Young exception to immunity. They do not issue marriage licenses or enforce license laws. Plaintiffs failed to sue any officials with such authority. D Plaintiffs Lack Standing To Sue the Defendants For reasons similar to those discussed in the immunity section, supra, Plaintiffs lack standing to sue the Defendants. As stated at an earlier stage of Oklahoma’s same-sex marriage case: “Before we address the merits of [a] case, we must first determine whether the federal district court, and likewise this court, has subject-matter jurisdiction over the dispute.’” In re Aramark Leisure Serv's, 523 F.3d 1169, 1173 (10th Cir.2008). “Article III standing requires that a plaintiff allege an injury-in-fact that has a causal connection to the defendant and is redressable by a favorable court decision. . . .” as Bishop v. Oklahoma, 333 F. App'x 361, 364 (10th Cir. 2009)(Bishop II); see also, Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. Jan. 14, 2014). In that case, the Tenth Circuit found a lack of standing of the Plaintiffs to sue the Governor and the Attorney General regarding their claims: Here, the Oklahoma officials' generalized duty to enforce state law, alone, is insufficient to subject them to a suit challenging a constitutional amendment they have no specific duty to enforce. See Women's Emergency Network v. Bush, 323 F.3d 937, 949-50 (11th Cir.2003); see also Waste Mgm't. Holdings, Inc. v. Gilmore, 252 F.3d 316, 330-31 (4th Cir.2001) (concluding governor's general duty to enforce the laws of Virginia insufficient when he lacks a specific duty to enforce the challenged statutes); Okpalobi v. Foster, 244 F.3d 405, 422-25 (5th Cir.2001) (en banc) (constitutional challenge to state tort statute against Governor and Attorney General not viable under the Ex Parte Young doctrine because no enforcement connection existed between Governor or Attorney General and the statute in question); 1st Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108, 112-13, 116 (3d Cir.1993) (“If we were to allow [plaintiffs] to join ... [the State officials] in this lawsuit based on their general obligation to enforce the laws ..., we would
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quickly approach the nadir of the slippery slope; each state's high policy officials would be subject to defend every suit challenging the constitutionality of any state statute, no matter how attenuated his or her connection to it.”). The Couples claim they desire to be married but are prevented from doing so, or they are married but the marriage is not recognized in Oklahoma. These claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks. See Okla. Stat. Ann. tit. 28, § 31; Okla. Stat. Ann. tit. 43, § 5. “[A] district court clerk is ‘judicial personnel’ and is an arm of the court whose duties are ministerial, except for those discretionary duties provided by statute. In the performance of [a] clerk's ministerial functions, the court clerk is subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrative District Judge in the clerk's administrative district.” Speight v. Presley, 203 P.3d 173, 177 (Okla.2008). Because recognition of marriages is within the administration of the judiciary, the executive branch of Oklahoma's government has no authority to issue a marriage license or record a marriage. Moreover, even if the Attorney General planned to enforce the misdemeanor penalty (a claim not made here), that enforcement would not be aimed toward the Couples as the penalty only applies to the issuer of a marriage license to a same-sex couple. Thus, the alleged injury to the Couples could not be caused by any action of the Oklahoma officials, nor would an injunction (tellingly, not requested here) against them give the Couples the legal status they seek. [footnote omitted] Bishop II dismissed the claims against the Oklahoma Governor and Attorney General due to lack of standing. Just as the plaintiffs in that case had no standing to sue the Oklahoman Governor and Attorney General due to their lack of enforcement authority as to same-sex marriage bans, the instant Plaintiffs lack standing to sue Governor Haley and Attorney General Wilson. This suit should be dismissed against them. Bishop II.
3
3 2F
Kitchen v. Herbert, 755 F.3d 1193, 1203 (10th Cir. 2014) reached a different conclusion as to the Utah Governor and Attorney General, but is readily distinguishable from the instant case. The Court found that the Utah Governor and Attorney General had explicitly taken the position . . . that they ‘have ample authority to ensure that’ the Salt Lake County Clerk ‘return[s] to her former practice of limiting marriage licenses to man-woman couples in compliance with Utah law.’” Id. 755 F. 3d at 1202. South Carolina’s Attorney General and Governor do not have such authority over our Probate Judges who issue licenses and this action should be dismissed as to them.
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Although the standing problems for Plaintiffs, as parties, is that they cannot sue these defendants, they also lack standing to assert the claims of third parties such as other same-sex couples and children of such relationships. “In order to maintain third-party standing, a plaintiff must establish the following three requirements: (1) an injury-in-fact; (2) a close relationship between the plaintiff and the person whose right is being asserted; and (3) a hindrance to the third party's ability to protect his or her own interests.” Miller v. Montgomery Cnty., Md., 458 F. App'x 304, 310 (4th Cir. 2011). To the extent that Plaintiffs attempt to make claims for other same-sex couples and children of such relationships, they fail to meet these requirements for third-party standing, and they have not sought to bring a class action. E This Court Should Also Abstain Under Younger v. Harris Younger v. Harris, 401 U.S. 37 (1971) and its progeny also support abstention because State proceedings are ongoing. Although the Supreme Court has issued its above discussed Order in State v. Condon, the proceeding is pending to the extent that Judge Condon and all other probate judges are directed not to issue marriage licenses pending a Bradacs decision and all state courts are directed not to issue marriage licenses “unless otherwise ordered by” the Supreme Court. Therefore, the Supreme Court allows for the possibility that it might issue other orders, and the direction to Probate Judges is tied to the Bradacs case, not the instant case. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 10-11 (1987) makes clear, as follows, that Younger abstention may and should be applied to support abstention as to ongoing civil proceedings: The courts below should have abstained under the principles of federalism enunciated in Younger v. Harris . . . . Both the District Court and the Court of Appeals failed to recognize the significant interests harmed by their unprecedented intrusion into the Texas judicial system. Similarly, neither of those
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courts applied the appropriate standard in determining whether adequate relief was available in the Texas courts. The first ground for the Younger decision was “the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law.” Id., at 43, 91 S.Ct. at 750. The Court also offered a second explanation for its decision: “This underlying reason ... is reinforced by an even more vital consideration, the notion of ‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.... The concept does not mean blind deference to ‘States' Rights' any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.” Id., at 44, 91 S.Ct. at 750. This concern mandates application of Younger abstention not only when the pending state proceedings are criminal, but also when certain civil proceedings are pending, if the State's interests in the proceeding are so important that exercise of the federal judicial power would disregard the comity between the States and the National Government. E.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 603–605, (1975). As in Pennzoil, supra, the instant case represents an “unprecedented intrusion into [our state’s] judicial system.” Therefore, this Court should abstain from proceeding with this case. F As a Matter of Comity, This Court Should Decline To Consider This Case Because A Prior Federal Case Is Pending The first-to-file rule is a well-established doctrine of federal comity. The rule was first recognized by the United States Supreme Court in Smith v. McIver, 22 U.S. (9 Wheat.) 532, 6 L.Ed. 152 (1824). There, the Supreme Court stated that “[i]n all
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cases of concurrent jurisdiction, the court which first has possession of the subject must decide it.” Id. at 534; see also American Modern Home Ins. v. Insured Accounts Co., Inc., 704 F.Supp. 128, 129 (S.D.Ohio 1988) (quoting same). The rule since has been clarified and applied in cases involving concurrent federal jurisdiction. See E.E.O.C. v. University of Pennsylvania, 850 F.2d 969, 972 (3rd Cir.), cert. granted in part, 488 U.S. 992 (1988).The first-to-file rule has evolved into a mechanism used to promote judicial efficiency. See In re American Medical Systems, Inc., 75 F.3d 1069, 1088 (6th Cir.1996) (“ ‘Although there is no precise rule that, as between federal district courts, one court should defer to the other, ‘the general principle as to avoid duplicative litigation.’ ”) (citations omitted); Barber–Greene Co. v. Blaw–Knox Co., 239 F.2d 774, 778 (6th Cir.1957) (describing that the first court to receive filing should proceed with case to avoid confusion and uncertainty); Parker–Hannifin Corp. v. Samuel Moore & Co., 436 F.Supp. 498, 501 (N.D.Ohio 1977) (reiterating that primary jurisdiction attaches in the forum where the action is “first instituted”) (citations omitted).12 The rule provides that “when identical suits are pending in two courts, the court in which the first suit was filed should generally proceed to judgment.” In re Burley, 738 F.2d 981, 988 (9th Cir.1984). Generally, courts should invoke the rule when two suits involving substantially the same parties and purpose have been filed in a concurrent jurisdiction. Barber–Greene Co., 239 F.2d at 778 (citation omitted). However, the same party and same issue is not an absolute requirement. “[A] precise identity of parties is simply not required.” EBW, Inc. v. Environ Products, Inc., No. 1:96–CV–144, 1996 WL 550020, at *3 (W.D.Mich. July 8, 1996).3 Although courts should not apply the first-to-file rule too rigidly or mechanically, the rule's importance “should not be disregarded lightly.” Church of Scientology v. United States Dep't of the Army, 611 F.2d 738, 750 (9th Cir.1979). Notably, “[t]he most basic aspect of the first to file rule is that it is discretionary.” Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622, 628 (9th Cir.1991). “The decision and the discretion belong to the district court.” Id Plating Res., Inc. v. UTI Corp., 47 F. Supp. 2d 899, 903 (N.D. Ohio 1999). “Ordinarily, when multiple suits are filed in different Federal courts upon the same factual issues, the first or prior action is permitted to proceed to the exclusion of another subsequently filed. See Carbide & Carbon Chemicals Corp. v. United States Industrial Chemicals, Inc., 140 F.2d 47, 49 (4th Cir. 1944).” Allied-Gen. Nuclear Servs. v. Commonwealth Edison Co., 675 F.2d 610, 611, n. 1 (4th Cir. 1982). See also, George Mason Univ. Found., Inc. v. Morris, No. 3:11-CV-848, 2013 WL 6449109, at *4 (E.D. Va. Dec. 9, 2013). “ As between federal district courts, however, though
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no precise rule has evolved, the general principle is to avoid duplicative litigation.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Duplicative litigation should be avoided here and comity served by this Court’s deferring a ruling in the instant case until the Bradacs case is decided. Bradacs will be ready for a ruling on the dispositive motions in that case before the instant case is ready for such a decision. All filings should be completed tomorrow regarding the pending Bradacs motions. Under the October 14, 2014 scheduling order, the Court may decide those motions without a hearing. Bradacs, 3:13-cv-02351, Document No. 71. The instant case is not as far along and filings will be completed this week only as to the preliminary injunction (answer or other responsive motion due November 7). The same substantive constitutional issues are present in both cases and the fact that Bradacs includes a claim for recognition of an out-of-state marriage license is not a distinction that is likely to produce a different substantive ruling or one not applicable to the instant parties. That the plaintiffs are not the same does not prevent deference, and this Court should proceed to stay this proceed or defer a ruling pending the Bradacs outcome. As noted above, the State Supreme Court has stated that “probate judges are [t]hereby directed not to issue marriage licenses to same-sex couples pending a decision by the Federal District Court in Bradacs.” II PRELIMINARY INJUNCTION STANDARD A preliminary injunction is an “extraordinary and drastic remedy” and “is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 690 (2008). “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). As the Fourth Circuit explained in In re Microsoft Corp. Antitrust Litigation, 333 F.3d 517, 525 (4th Cir.2003), “[t]he traditional office of a preliminary injunction is to protect the status quo and to prevent irreparable
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harm during the pendency of a lawsuit ultimately to preserve the court's ability to render a meaningful judgment on the merits.” A moving party must establish the presence of the following: (1) “a clear showing that it will likely succeed on the merits”; (2) “a clear showing that it is likely to be irreparably harmed absent preliminary relief”; (3) the balance of equities tips in favor of the moving party; and (4) a preliminary injunction is in the public interest. Real Truth About Obama, Inc. v. Fed. Election Comm., 575 F.3d 342, 346–47 (4th Cir.2009); W. Va. Assoc. of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir.2009). These standards follow the newly articulated requirements for preliminary injunction set forth by the Supreme Court in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22–23 (2008). Unlike the Fourth Circuit's previous “balance of hardship” test set forth in Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 196 (4th Cir.1977), the moving party seeking a preliminary injunction must establish the presence of each of the four requirements, satisfying the standards of each as articulated. Real Truth About Obama, Inc., 575 F.3d at 347. United States v. S. Carolina, 840 F. Supp. 2d 898, 914 (D.S.C. 2011) modified in part, 906 F. Supp. 2d 463 (D.S.C. 2012) aff'd, 720 F.3d 518 (4th Cir. 2013) “A preliminary injunction is a drastic remedy, Bloodgood v. Garraghty, 783 F.2d 470, 475 (4th Cir.1986), which serves to maintain the status quo ante litem. Feller v. Brock, 802 F.2d 722, 727 (4th Cir.1986). The decision to grant or deny a preliminary injunction rests within the sound discretion of the district court, and that decision will not be disturbed on appeal absent a showing that the district court committed an abuse of its discretion.” Fayetteville, Cumberland Cnty. Black Democratic Caucus v. Cumberland Cnty., N.C., 884 F.2d 1388 (4th Cir. 1989). Although Preliminary Injunctions have been issued in same-sex marriage cases, Plaintiffs fail to show that they are entitled to an injunction for reasons discussed below. See, eg. Bostic v. Rainey, 970 F. Supp. 2d 456, 474 (E.D. Va.) 4 3F
4
aff'd sub nom. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) cert. denied sub nom. Rainey v. Bostic, No. 14-153, 2014 WL 3924685 (U.S. Oct. 6, 2014) and cert. denied, No. 14225, 2014 WL 4230092 (U.S. Oct. 6, 2014) and cert. denied sub nom. McQuigg v. Bostic, No. 14-251, 2014 WL 4354536 (U.S. Oct. 6, 2014).
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III PLAINTIFFS FAIL TO MAKE A CLEAR SHOWING THAT THEY WILL LIKELY SUCCEED ON THE MERITS FOR A PRELIMINARY INJUNCTION The grounds set forth in Argument I, supra, are dispositive of this case. They also demonstrate that Plaintiffs cannot succeed on the merits of this case. In addition, the following grounds also show that Plaintiffs should not succeed on the merits. A As to Issues That Bostic addressed, Bostic was Wrongly Decided and the Defendants, respectfully, argue against precedent to the Extent Necessary “[A] non-frivolous argument for a change in law is certainly an appropriate argument to this Court. The Court, however, must follow the established precedent of this Circuit. United States v. Williams, No. 4:12-CR-00969-RBH, 2014 WL 971749, at *5 (D.S.C. Mar. 12, 2014); see also, Rule 11(b)(2), FRCP (Non-frivolous argument for “modifying, or reversing existing law or for establishing new law). As discussed above, under Fourth Circuit precedent, Baker v. Nelson controls this Court’s consideration of the merits of this case rather than the Bostic Panel decision that overlooked that authority of their own Court. To the extent that, arguendo, Baker does not apply, the Defendants Governor and Attorney General argue against the Bostic precedent and seek to preserve those arguments for further review. B History Of Marriage Law / Comparison of Current South Carolina and Virginia Law 1 Generally For countless centuries, marriage has required both sexes—uniting a man and a woman as husband and wife to be father and mother to any children they produce. As David Hume
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explained, "[t]he long and helpless infancy of man requires the combination of parents for the subsistence of their young." David Hume, An Enquiry Concerning the Principles of Morals, in Essays and Treatises on Several Subjects 421 (London, Millar 1758). John Locke likewise understood marriage as “made by a voluntary Compact between Man and Woman; and tho’ its chief End, [is] Procreation; yet it draws with it mutual Support and Assistance, and a Communion of Interests too, as necessary not only to unite their Care and Affection, but also necessary to their common Off-spring, who have a Right to be nourished, and maintained by them, till they are able to provide for themselves.” 2 John Locke, Second Treatise of Government: Of Civil Government § 78, in The Works of John Locke Esq. 180 (London, Churchill 1714). Noah Webster defined marriage as “[t]he act of uniting a man and woman for life; wedlock; the legal union of a man and woman for life,” which is designed “for securing the maintenance and education of children.” 2 Noah Webster, An American Dictionary of the English Language (1st ed. 1828). As the Supreme Court noted long ago, marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress.” Maynard v. Hill, 125 U.S. 190, 211 (1888). It is “an institution more basic in our civilization than any other.” Williams v. North Carolina, 317 U.S. 287, 303 (1942). And because it is structured for the procreation and protection of offspring, it is “fundamental to the very existence and survival of the [human] race.” Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)). 2 In South Carolina The definition of marriage as an opposite sex legal relationship has been equally settled in South Carolina since Colonial times. Under a 1712 statute, only opposite sex marriages were
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within the contemplation of the law in that it prohibited bigamy for persons marrying when they had “another husband or wife living” (Statutes at Large, 1712, p. 508). (Attachment B). As set forth in State v. Barefoot, 2 Rich. 209, 31 S.C.L. 209, 1845 WL 2580 (S.C. Ct. of Appeals 1845) “[b]y the common law, single men and women, being of the lawful age, that is, men of 14 and women of 12 years of age, are left free to enter into the contract of marriage at their own discretion.” Barefoot cites Blackstone, whose pre-revolutionary Commentaries on the Laws of England (1765-1769) states that ”[t]he second private relation of persons is that of marriage, which includes the reciprocal duties of husband and wife . . . .” (Bk. 1, Ch. 15), The Laws of Nature and Nature’s God, http://www.lonang.com/exlibris/blackstone/bla-115.htm 5 The 1871 4F
Revised Statutes forbade men from marrying various female relatives and in-laws and forbade women from marrying various male relatives and in-laws. 1871 R.S. 440 (Attachment C). Lucken v. Wichman, 5 S.C. 411, 413 (1874) stated that “[t]he existence of a marriage is a question of fact [w]hether founded on an express contract, or inferred from circumstances, which necessarily imply that the relation of husband and wife existed between the parties . . . . (emphasis added). Lucken was cited in Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960) which stated that “[i]t is essential to a common law marriage that there shall be a mutual agreement between the parties to assume toward each other the relation of husband and wife. Cohabitation without such an agreement does not constitute marriage.”
5
This book and chapter of Blackstone are cited in Vaigneur v. Kirk, 2 Des. 640, 2 S.C. Eq. 640, note a1,1808 WL 290 (Court of Chancery of S.C. 1808) for the purpose of resorting to the law of England “to ascertain what constitutes a legal marriage . . . in this country.” “It is plain from a reading of Blackstone, which speaks of husband and wife, and his discussion of the common law as applied to husband and wife, that by using terms like husband and wife or, its Norman French equivalent, baron and feme, the understanding of English common law was that marriage was a contract entered into by a man and a woman.” Rosengarten v. Downes, 71 Conn. App. 372, 384, 802 A.2d 170, 177 (2002).
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Until very recently, the definition of marriage as being limited to an opposite sex couple was entirely uncontroversial. The redefinition of marriage never became a serious point of discussion until the Hawaii Supreme Court suggested the possibility in 1993. See Baehr v. Lewin, 852 P.2d 44, 68 (Haw.), reconsideration granted in part, 875 P.2d 225 (Haw. 1993). Same–sex marriage has been a point of public discussion for less than a generation—yet plaintiffs insist that this new view of marriage is now embedded in our country’s founding document. Once Hawaii raised the issue, South Carolina joined the national discussion on the meaning and definition of marriage. South Carolina adopted a statute and a Constitutional provision that expressly addressed what had been the law in this State since it joined with twelve other states to form the United States. See, footnote 1, supra. These provisions did not change South Carolina law, but instead, ratified existing law. They did not restrict same-sex couples other than by affirming that opposite sex marriage is the “only lawful domestic union.” 3 Comparison to Virginia Law This Court asked that the Defendants note any differences with Virginia law regarding same-sex marriage because of the Bostic decision. Attachment A to this Memorandum sets out the laws of the two states. Virginia’s laws preserve existing law by banning same-sex marriage as does South Carolina law, but our State’s Constitution contains some significant differences in its express protection for specified rights, benefits, contracts and legal instruments. S.C. Const. art. XVII, §15 (“Nothing in this section shall impair any right or benefit extended by the State or its
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political subdivisions other than a right or benefit arising from a domestic union that is not valid or recognized in this State. This section shall not prohibit or limit parties, other than the State or its political subdivisions, from entering into contracts or other legal instruments.”). Virginia’s Constitution contains no protection for such matters and Va. Code § 20-45.2 states that any contract rights created by a same-sex marriage are “void and unenforceable.” This memorandum does not attempt to construe the scope of South Carolina law’s protections or Virginia’s limitation. Instead, the point is that South Carolina law simply seeks to preserve existing marital law and that it does not demonstrate animus or an attempt to remove any rights or benefits that any individuals previously had under our State’s law. C Rational Basis Review Should Apply Here to Plaintiffs’ Due Process and Equal Protection Claims Although Bostic applied strict scrutiny to its analysis of the same-sex marriage claims in that case, the dissent in the 2-1 decision by Judge Niemeyer applied rational basis review. Because the Defendants believe that Judge Niemeyer’s opinion was the correct one, they offer his analysis to preserve in argument against the Bostic Panel decision and should further review be sought later. 1 No Fundamental Right to Same-Sex Marriage Exists Bostic applied strict scrutiny because it found marriage to be a fundamental right that encompasses same-sex marriage.
Judge Niemeyer reached a different, legally correct
conclusion. As Judge Niemeyer stated:
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To be clear, this case is not about whether courts favor or disfavor same-sex marriage, or whether States recognizing or declining to recognize same-sex marriage have made good policy decisions. It is much narrower. It is about whether a State's decision not to recognize same-sex marriage violates the Fourteenth Amendment of the U.S. Constitution. Thus, the judicial response must be limited to an analysis applying established constitutional principles.
Bostic, 760 F.3d at 385. He found fundamental flaws in the conclusion of the other two members of the Panel that same-sex marriage is a fundamental right, This analysis is fundamentally flawed because it fails to take into account that the “marriage” that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly proposed relationship of a “same-sex marriage.” And this failure is even more pronounced by the majority's acknowledgment that same-sex marriage is a new notion that has not been recognized “for most of our country's history.” Ante at 376. Moreover, the majority fails to explain how this new notion became incorporated into the traditional definition of marriage except by linguistic manipulation. Thus, the majority never asks the question necessary to finding a fundamental right—whether same-sex marriage is a right that is “deeply rooted in this Nation's history and tradition” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed.” Glucksberg, 521 U.S. at 721, (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion); Palko v. Connecticut, 302 U.S. 319 (1937)) (internal quotation marks omitted). . . .
760 F.3d at 386. The substantive component of the Due Process Clause only protects “fundamental” liberty interests. And the Supreme Court has held that liberty interests are only fundamental if they are, “objectively, ‘deeply rooted in this Nation's history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’ ” Glucksberg, 521 U.S. at 720–21 (citation omitted) (quoting Moore, 431 U.S. at 503 (plurality opinion); Palko, 302 U.S. at 325–26,). When determining whether such a fundamental right exists, a court must always make “a ‘careful description’ of the asserted fundamental liberty interest.” Id. at 721, 117 S.Ct. 2258 (emphasis added) (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)). This “careful description” involves characterizing the right asserted in its narrowest terms. .. .
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Under this formulation, because the Virginia laws at issue prohibit “marriage between persons of the same sex,” Va.Code Ann. § 20–45.2, “the question before us is whether the ‘liberty’ specially protected by the Due Process Clause includes a right” to same-sex marriage. Glucksberg, 521 U.S. at 723 . . . . When a fundamental right is so identified, then any statute restricting the right is subject to strict scrutiny and must be “narrowly tailored to serve a compelling state interest.” Flores, 507 U.S. at 302. Such scrutiny is extremely difficult for a law to withstand, and, as such, the Supreme Court has noted that courts must be extremely cautious in recognizing fundamental rights because doing so ordinarily removes freedom of choice from the hands of the people: The plaintiffs in this case, as well as the majority, recognize that narrowly defining the asserted liberty interest would require them to demonstrate a new fundamental right to same-sex marriage, which they cannot do. . . . Instead, the plaintiffs and the majority argue that the fundamental right to marriage that has previously been recognized by the Supreme Court is a broad right that should apply to the plaintiffs without the need to recognize a new fundamental right to same-sex marriage. They argue that this approach is supported by the fact that the Supreme Court did not narrowly define the right to marriage in its decisions in Loving, 388 U.S. at 12; Turner, 482 U.S. at 94–96; or Zablocki, 434 U.S. at 383–86. It is true that, in those cases, the Court did not recognize new, separate fundamental rights to fit the factual circumstances in each case. For example, in Loving, the Court did not examine whether interracial marriage was, objectively, deeply rooted in our Nation's history and tradition. But it was not required to do so. Each of those cases involved a couple asserting a right to enter into a traditional marriage of the type that has always been recognized since the beginning of the Nation-a union between one man and one woman. . . . To now define the previously recognized fundamental right to “marriage” as a concept that includes the new notion of “same-sex marriage” amounts to a dictionary jurisprudence, which defines terms as convenient to attain an end. [T]here are . . . significant distinctions between [same-sex and opposite-sex] the relationships that can justify differential treatment by lawmakers. Only the union of a man and a woman has the capacity to produce children and thus to carry on the species. And more importantly, only such a union creates a biological family unit that also gives rise to a traditionally stable political unit. Every person's identity includes the person's particular biological relationships, which create unique and meaningful bonds of kinship that are extraordinarily strong and enduring and that have been afforded a privileged place in political order throughout human history. Societies have accordingly enacted laws
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promoting the family unit-such as those relating to sexual engagement, marriage rites, divorce, inheritance, name and title, and economic matters. And many societies have found familial bonds so critical that they have elevated marriage to be a sacred institution trapped with religious rituals. In these respects, the traditional man-woman relationship is unique. Thus, when the Supreme Court has recognized, through the years, that the right to marry is a fundamental right, it has emphasized the procreative and social ordering aspects of traditional marriage. For example, it has said: “[Marriage] is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress,” Maynard v. Hill, 125 U.S. 190, 211 (1888) (emphasis added); Marriage is “one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race,” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942); “It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, childrearing, and family relationships.... [Marriage] is the foundation of the family in our society,” Zablocki, 434 U.S. at 386. Because there exist deep, fundamental differences between traditional and samesex marriage, the plaintiffs and the majority err by conflating the two relationships under the loosely drawn rubric of “the right to marriage.” Rather, to obtain constitutional protection, they would have to show that the right to samesex marriage is itself deeply rooted in our Nation's history. They have not attempted to do so and could not succeed if they were so to attempt. In an effort to bridge the obvious differences between the traditional relationship and the new same-sex relationship, the plaintiffs argue that the fundamental right to marriage “has always been based on, and defined by, the constitutional liberty to select the partner of one's choice.” (Emphasis added). They rely heavily on Loving to assert this claim. In Loving, the Court held that a state regulation restricting interracial marriage infringed on the fundamental right to marriage. Loving, 388 U.S. at 12. But nowhere in Loving did the Court suggest that the fundamental right to marry includes the unrestricted right to marry whomever one chooses, as the plaintiffs claim. Indeed, Loving explicitly relied on Skinner and Murphy, and both of those cases discussed marriage in traditional, procreative terms. Id. This reading of Loving is fortified by the Court's summary dismissal of Baker v. Nelson, [supra], just five years after Loving was decided. . . . . The Court's action in context indicates that the Court did not view Loving or the cases that preceded it as providing a fundamental right to an unrestricted choice of marriage partner. . . .The state regulation struck down in Loving, like those in Zablocki and Turner, had no relationship to the foundational purposes of marriage, while the gender of the individuals in a marriage clearly does. Thus, the majority errs, as did the
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district court, by interpreting the Supreme Court's marriage cases as establishing a right that includes same-sex marriage. Bostic v. Schaefer, 760 F.3d at 389-93 (Niemeyer dissenting). The misapplication of Loving to find same-sex marriage is a significant error by the two person majority in Bostic. As recognized by a New York Court before that state’s legislature legalized same-sex marriage, “the historical background of Loving is different from the history underlying . . .” same-sex marriage. Hernandez v. Robles, 7 N.Y.3d 338, 361, 855 N.E.2d 1, 8 (2006). Race was not a historical element of marriage. It was superimposed on marital law” to maintain White Supremacy.’” Id. The history of the “traditional definition of marriage . . . is of a different kind.” Id. “The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” Id. Therefore, whereas Loving lifted a restriction that was never an element of marriage, the 2-1 Bostic panel misapplied the decision to alter the element historically inherent in marriage a union of a man and a woman. . Judge Niemeyer found other barriers to the Virginia plaintiff’s assertion of a fundamental right: The plaintiffs also largely ignore the problem with their position that if the fundamental right to marriage is based on “the constitutional liberty to select the partner of one's choice,” as they contend, then that liberty would also extend to individuals seeking state recognition of other types of relationships that States currently restrict, such as polygamous or incestuous relationships. . . Under the Glucksberg analysis that we are thus bound to conduct, there is no new fundamental right to same-sex marriage. Virginia's laws restricting marriage to man-woman relationships must therefore be upheld if there is any rational basis for the laws. Bostic, 760 F.3d at 392, dissenting opinion (emphasis added). The same conclusion applies to South Carolina’s law.
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2 Limiting marriage to the union of a man and a woman does not implicate a suspect class requiring heightened scrutiny Bostic did not address whether a suspect class was implicated by Virginia’s laws because it found a fundamental right to same-sex marriage. Judge Niemeyer did address this issue and found no suspect class implicated in that case and that rational basis review applied. Any laws based on such “suspect” classifications are subject to strict scrutiny. See id. In a similar vein, classifications based on gender are “quasisuspect” and call for “intermediate scrutiny” because they “frequently bear[ ] no relation to ability to perform or contribute to society” and thus “generally provide[ ] no sensible ground for differential treatment.” Id. at 440–41, 105 S.Ct. 3249 (quoting Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality opinion)); see also Craig v. Boren, 429 U.S. 190, 197 (1976). Laws subject to intermediate scrutiny must be substantially related to an important government objective. See United States v. Virginia, 518 U.S. 515, 533 (1996). But when a regulation adversely affects members of a class that is not suspect or quasi-suspect, the regulation is “presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249 (emphasis added). … The plaintiffs contend that Virginia's marriage laws should be subjected to some level of heightened scrutiny because they discriminate on the basis of sexual orientation. Yet they concede that neither the Supreme Court nor the Fourth Circuit has ever applied heightened scrutiny to a classification based on sexual orientation. They urge this court to do so for the first time. Governing precedent, however, counsels otherwise. In Romer v. Evans, the Supreme Court did not employ any heightened level of scrutiny in evaluating a Colorado constitutional amendment that prohibited state and local governments from enacting legislation that would allow persons to claim “any minority status, quota preferences, protected status, or discrimination” based on sexual orientation. Romer, 517 U.S. at 624. In holding the amendment unconstitutional under the Equal Protection Clause, the Court applied rationalbasis review. See id. at 631–33. And the Supreme Court made no change as to the appropriate level of scrutiny in its more recent decision in Windsor . . . . Finally, we have concluded that rational-basis review applies to classifications based on sexual orientation. See Veney v. Wyche, 293 F.3d 726, 731–32 (4th
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Cir.2002). . . . .The vast majority of other courts of appeals have reached the same conclusion. Bostic, 760 F.3d at 396-97 (Niemeyer dissenting). 3 The Same-Sex Marriage Restrictions Do Not Discriminate on the Basis of Sex
Plaintiffs claim sex discrimination, but the Supreme Court has never held that classifications involving sexual orientation amount to sex discrimination. The traditional definition of marriage treats both sexes equally, as men and women are equally free to marry members of the opposite sex.
No authority binds this Court to find sexual discrimination in
this case and apply a standard of review higher than rational basis. The Bostic opinions did not address this issue substantively, and the Ninth Circuit’s decision is not controlling here. Latta v. Otter, 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7, 2014)(“same-sex marriage prohibitions also constitute sex discrimination”). The fundamental flaw with plaintiffs’ sex discrimination claim is that “the marriage laws are facially neutral; they do not single out men or women as a class for disparate treatment, but rather prohibit men and women equally from marrying a person of the same sex.” Baker v. State, 744 A.2d 864, 880 n.13 (Vt. 1999). “[T]here is no discrete class subject to differential treatment solely on the basis of sex; each sex is equally prohibited from precisely the same conduct.” Id. The Supreme Court has repeatedly upheld classifications that track biological differences between the sexes. Distinctions based on pregnancy, for instance, are rationally related to women’s different reproductive biology. Geduldig v. Aiello, 417 U.S. 484, 495-96 (1974) (equal protection) (later superseded by 42 U.S.C.A. § 2000e(k) (West 2013)
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(Pregnancy Discrimination Amendment)). And immigration law may make it easier for out-ofwedlock children to claim citizenship from citizen mothers than from citizen fathers, for reasons beyond gender stereotypes. Nguyen v. INS, 533 U.S. 53, 62-65 (2001). As Justice Kennedy wrote for the Court in Nguyen: To fail to acknowledge even our most basic biological differences—such as the fact that a mother must be present at birth but the father need not be—risks making the guarantee of equal protection superficial, and so disserving it. . . .The difference between men and women in relation to the birth process is a real one, and the principle of equal protection does not forbid Congress to address the problem at hand in a manner specific to each gender. 533 U.S. at 73 (2001). Under South Carolina law, both sexes are equally free to marry.
They do not
discriminate on the basis of sex, and therefore, rational basis review applies.
4 SOUTH CAROLINA’S LONGSTANDING DEFINITION OF MARRIAGE SATISFIES RATIONAL BASIS REVIEW UNDER THE EQUAL PROTECTION AND DUE PROCESS CLAUSES Under Judge Niemeyer’s analysis that no fundamental right is involved, rational basis review applies to Plaintiffs’ due process claims. See Colon Health Centers of Am., LLC v. Hazel, 733 F.3d 535, 548 (4th Cir. 2013)(citing Glucksberg).
For that same reason and because
Plaintiffs are not part of a suspect class, rational basis review applies to their equal protection claims. Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2080 (2012). a Rational Basis Review Is Extremely Deferential Rational basis review “is a paradigm of judicial restraint.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14 (1993). “[J]udicial intervention is generally unwarranted no matter how
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unwisely we may think a political branch has acted.” Vance v. Bradley, 440 U.S. 93, 97 (1979). The laws must be upheld “if there is any reasonably conceivable set of facts that could provide a rational basis for the classification” between opposite-sex couples and same-sex couples. Heller v. Doe, 509 U.S. 312, 319 (1993) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). b Rational Bases Exist for South Carolina’s Marriage Laws In her opinion concurring in Lawrence v. Texas, 539 U.S. 558, 585 (2003), regarding the Texas statute prohibiting sodomy between homosexuals, Justice O’Connor strongly indicated that marriage laws would withstand a challenge from same-sex couples. She stated as follows: That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here such as . . . preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. (emphasis added). 539 U.S. at 585. Numerous legitimate state interests support South Carolina’s limitation of marriage to opposite-sex couples. In Bostic, Virginia offered the following grounds as support for its same-sex marriage ban: (1) Virginia's federalism-based interest in maintaining control over the definition of marriage within its borders, (2) the history and tradition of opposite-sex marriage, (3) protecting the institution of marriage, (4) encouraging responsible procreation, and (5) promoting the optimal childrearing environment
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Bostic, 760 F.3d at 378. Although rejected by the Court of Appeals under strict scrutiny, these grounds support South Carolina’s law under rational basis review. Respectfully disagreeing with the two person majority opinion in Bostic, we also submit that the grounds would pass a strict scrutiny test if applied because they are compelling state interests and are narrowly drawn. 760 F.3d at 377. Judge Niemeyer analyzed these grounds for Virginia’s law under a rational basis standard and his conclusions apply here. He stated: Virginia has undoubtedly articulated sufficient rational bases for its marriage laws, and I would find that those bases constitutionally justify the laws. Those laws are grounded on the biological connection of men and women; the potential for their having children; the family order needed in raising children; and, on a larger scale, the political order resulting from stable family units. Moreover, I would add that the traditional marriage relationship encourages a family structure that is intergenerational, giving children not only a structure in which to be raised but also an identity and a strong relational context. The marriage of a man and a woman thus rationally promotes a correlation between biological order and political order. Because Virginia's marriage laws are rationally related to its legitimate purposes, they withstand rational-basis scrutiny under the Due Process Clause.
Bostic, 760 F.3d at 395 (4th Cir. 2014). South Carolina’s laws serve similar purposes. Maynard, Meyer and Skinner, supra, imply that a purpose of marriage is to encourage potentially procreative couples to raise children produced by their sexual union together. Marriage was not born of animus against homosexuals but is predicated instead on the positive, important and concrete societal interests in the procreative nature of opposite-sex relationships. Only opposite-sex couples can naturally procreate, and the responsible begetting and rearing of new generations is of fundamental importance to civil society. It is no exaggeration to say that “[m]arriage and procreation are fundamental to .. . existence and survival . . . .” Skinner, 316 U.S. at 541. The State may rationally conclude that, all things being equal, it is better for the
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natural parents to also be the legal parents, and establish civil marriage to encourage that result. See Hernandez, 855 N.E.2d at 7. As stated by Judge Niemeyer: Here, the Commonwealth's goal of ensuring that unplanned children are raised in stable homes is furthered only by offering the benefits of marriage to opposite-sex couples. As Virginia correctly asserts, “the relevant inquiry here is not whether excluding same-sex couples from marriage furthers [Virginia's] interest in steering man-woman couples into marriage.” Rather, the relevant inquiry is whether also recognizing same-sex marriages would further Virginia's interests. With regard to its interest in ensuring stable families in the event of unplanned pregnancies, it would not. Bostic, 760 F.3d at 394. Preservation of the long history and tradition of marriage as an opposite-sex legal institution is also a rational basis for sustaining South Carolina law. As discussed above, marriage has always been understood as being limited to opposite sex couples until the very recent legislative and judicial consideration of same-sex marriages. This basis for marriage which has been rooted in law, custom and societal relationships is a rational basis for limiting marriage to opposite-sex couples.
Any change in this definition should come from the
legislature and the voters rather than the judiciary. IV PLAINTIFFS FAIL TO MEET THE OTHER REQUIREMENTS FOR A PRELIMINARY INJUNCTION Plaintiffs are not entitled to a preliminary injunction for reasons discussed in the previous section, but they also fail to meet tests for irreparable harm, balance of equities and the public interest. U.S. v. Charleston, supra. “While . . . violations of constitutional rights constitute irreparable harm for injunctive relief purposes (United States v. Charleston Cnty., 318 F. Supp. 2d 302, 326 (D.S.C. 2002), in the context of the current litigation in South Carolina, Plaintiffs are not harmed because the Bradacs litigation is likely to be decided shortly, and if favorable in
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outcome to their position, would affect Plaintiff’s and the Supreme Court’s direction to Probate Judges. The balance of equities do not tip in their favor and the public interest is not served by Plaintiffs’ trying to jump over the Bradacs case to obtain a decision possibly only days before that case is decided. Had they wanted a voice in that case, they could have moved to intervene, but they failed to do so. They should not be granted a preliminary injunction when should be protected by any outcome in Bradacs cases favorable to their position. V ALTERNATIVE MOTION / REQUEST FOR STAY Should, arguendo, this Court grant a preliminary injunction, the Defendants respectfully request that this Court grant a stay pending appeal to the Court of Appeals for the Fourth Circuit pursuant to Rule 62, FRCP. “Briefly stated, a party seeking a stay must show (1) that he will likely prevail on the merits of the appeal, (2) that he will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay.” Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970). Brenner v. Scott, 999 F. Supp. 2d 1278, 1292 (N.D. Fla. 2014) applied similar standards to grant a stay in that same-sex marriage case: at the stay-pending-appeal stage, an additional public interest comes into play. There is a substantial public interest in implementing this decision just once—in not having, as some states have had, a decision that is on-again, off-again. This is so for marriages already entered elsewhere, and it is more clearly so for new marriages. There is a substantial public interest in stable marriage laws. Indeed, there is a substantial public interest in allowing those who would enter same-sex marriages the same opportunity for due deliberation that opposite-sex couples routinely are afforded. Encouraging a rush to the marriage officiant, in an effort to get in before an appellate court enters a stay, serves the interests of nobody. A stay thus should be entered for long enough to provide reasonable assurance that the opportunity for same-sex marriages in Florida, once opened, will not again close. The stay will remain in effect until stays have been lifted in Bostic, Bishop, and Kitchen, and for an additional 90 days to allow the defendants to seek a longer stay from this court or a stay from the Eleventh Circuit or Supreme Court.
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See also, same-sex marriage cases Henry v. Himes, No. 1:14-CV-129, 2014 WL 1512541, at *1 (S.D. Ohio Apr. 16, 2014) 6; Bourke v. Beshear, 996 F. Supp. 2d 542, 558 (W.D. Ky. 2014 ) 7 5F
6F
This analysis directly applies here, particularly when the Bradacs case is pending and the State Supreme Court’s order directs probate judges not to issue marriage licenses until Bradacs is decided. Although the Bostic case is decided and the United States Supreme Court denied certiorari, the Panel did not consider a number of dispositive defenses raised in the instant case. Moreover, it is a Panel decision and the Appellate Court rules permit appellants to request initial en banc review that, if granted, could lead to a different conclusion at the Court of Appeals. Rule 35, FRAP. The Court of Appeals should be given the opportunity to review this matter en banc, consideration that was apparently not sought in Bostic. The Fourth Circuit is likely to want to conclude the appellate process quickly regardless of outcome. In the meanwhile, the window should not be opened on same-sex marriages at the substantial risk of closure again should the Defendants’ appeal be successful. Therefore, the State respectfully requests that any order of this Court granting a preliminary injunction be enjoined until appellate review is completed at the Court of Appeals.
6
Henry stated: “if Defendant Himes's appeal is ultimately successful, the absence of a stay as to this Court's ruling of facial unconstitutionality is likely to lead to confusion, potential inequity, and high costs. These considerations lead the Court to conclude that the public interest would best be served by the granting of a stay. Premature celebration3 and confusion do not serve anyone's best interests. The federal appeals courts need to rule, as does the United States Supreme Court.” 7
As stated in Bourke: “One judge may decide a case, but ultimately others have a final say. It is the entire process, however, which gives our judicial system and our judges such high credibility and acceptance. This is the way of our Constitution. It is that belief which ultimately informs the Court's decision to grant a stay. It is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well.”
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CONCLUSION This case is not properly presented to this Court. It is barred by Rooker Feldman and Federalism, and as to these Defendants, by the Eleventh Amendment and by the lack of standing of the Plaintiffs to sue them. The long established and well recognized principles of federalism strongly militate in favor of allowing the courts of South Carolina to decide these important questions. Other courts agree. See Conde-Vidal v. Garcia-Padilla, supra. (following Baker v. Nelson, supra.). South Carolina’s constitutional provision has never been interpreted and the state courts traditionally have been the proper forum to handle domestic relations such as the status of marriage. Bostic is not controlling precedent because, according to prior decisions of the Fourth Circuit, summary dismissals of the Supreme Court such as the dismissal of the samesex marriage challenge in Baker v. Nelson are controlling. The other issues need not be reached, but to preserve the issues, we argue against precedent, and assert that Judge Niemeyer’s dissent in Bostic presents the sounder constitutional analysis. For the foregoing reasons, the Defendants respectfully request that the Plaintiffs Motion for a Preliminary Injunction be denied. Respectfully submitted, ALAN WILSON Attorney General Federal ID No.10457 ROBERT D. COOK Solicitor General Federal ID No. 285 Email:
[email protected] /s/ J. Emory Smith, Jr. J. EMORY SMITH, Jr. Deputy Solicitor General Federal ID No. 3908 Email:
[email protected] [Signature block continues next page]
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IAN P. WESCHLER Assistant Attorney General Federal ID No. 11744 BRENDAN J. MCDONALD Assistant Attorney General Federal ID No. 10659 Office of the Attorney General Post Office Box 11549 Columbia, South Carolina 29211 Phone: (803) 734-3680 Fax: (803) 734-3677 Counsel for Defendants Governor and Attorney General
November 3, 2014
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ATTACHMENT A
Condon v. Haley Memorandum of Defendants in Opposition to Motion for Preliminary Injunction
Comparison of pertinent South Carolina and Virginia statutes and Constitutions
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South Carolina Statutes § 20-1-10: Persons who may contract matrimony. (A) All persons, except mentally incompetent persons and persons whose marriage is prohibited by this section, may lawfully contract matrimony. (B) No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfather’s wife, son’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister, mother’s sister, or another man. (C) No woman shall marry her father, grandfather, son, grandson, stepfather, brother, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s father, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother, mother’s brother, or another woman.
§ 20-1-15: A marriage between persons of the same sex is void ab initio and against the public policy of this State.
South Carolina Constitution S.C. Const. Art. XVII, § 15: A marriage between one man and one woman is the only lawful domestic union that shall be valid or recognized in this State. This State and its political subdivisions shall not create a legal status, right, or claim respecting any other domestic union, however denominated. This State and its political subdivisions shall not recognize or give effect to a legal status, right, or claim created by another jurisdiction respecting any other domestic union, however denominated. Nothing in this section shall impair any right or benefit extended by the State or its political subdivisions other than a right or benefit arising from a domestic union that is not valid or recognized in this State. This section shall not prohibit or limit parties, other than the State or its political subdivisions, from entering into contracts or other legal instruments.
Virginia Statute Va. Code § 20-45.2: A marriage between persons of the same sex is prohibited. Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable.
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Virginia Constitution Marshall/Newman Amendment to the Virginia Constitution, Va. Const. art. 1, § 15-A: That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
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ATTACHMENT B
Condon v. Haley Memorandum of Governor and Attorney General in Opposition to Preliminary Injunction
Statutes at Large, 1712, p. 508
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STATUTES AT LARGE
A. 1). 1712
English Statutes Made of Force.
1 J. 1. e. 11.
An Act to restrain all Persons from Marriage until their former Wives and former Husbands be dead.
FORASMUCH as divers evil-disposed persons being married, Felonyto marry out of one second
as-
knowtJ(
an(j
county into there
another, or into
become
to
be
places
married,
where
having
they
another
are
husband
run not or
band or wife,
wife living, to the great dishonor of God, and utter undoing of divers honest mens children, and others; [2j Be it therefore enacted, That if any person or persons within his Majesty's dominions of England and
tlte former being living.
3 Ins'r. 93. <'ro. Eliz. 91.
Er0- Can 461. "Wales, being married, or which hereafter shall marry, do at any time
Kelyng 79 80 'A^ter the end of the session of this present parliament, marry any pertHalesP.C.6'J2. son or persons, the former husband or wife being alive ; that then every
such offence shall be felony, and the person and persons so offending shali suffer death as in cases of felony; [3] and the party and parties so offending shall receive such and the like proceeding, trial and ex ecution in such county where such person or persons shall be appre
hended, as if the offence had been committed in such county
where
such person or persons shall he taken or apprehended.
i,
T1 e husband or
^>ro'lAC'e^ always, That this Act, nor any therein contained, shall
wife, being ab-extencl to ariy person or persons whose husband or wife shall he con
sent 7 years tinually remaining beyond the seas by the space of 7 years together, from the other. or w]]0gg husband or wife shall absent him or herself the one from the
other by the space of 7 years together, in any parts within his Majes
ty's dominions,
the
one of them not knowing the other to be living
within that time.
III. Provided also, That this Act, nor any thing herein contained, shaii
To what per- extend to any person or persons that are or shall he at the time of such s°"jjt'nStStalute marriage divorced by any sentence had or hereafter to be had in the ecrie-
tend.
X"
siastical court ; [2] or to any person or persons where the former marriage
hath been or hereafter shall he by sentence in the ecclesiastical court declared to be void and of no effect; nor to any person or persons for or by reason of any former marriage had or made, or hereafter to be had or made, within age of consent,
ofbkmd"[uss"of
1 it
this
Provided also, That no attainder for this offence made felony by Act, shall make or work any corruption of blood, loss of dower,
dower or inheritance.
disinherison of heir or heirs.
1 J. I.e. 12.
An Acte against Conjuration ,
3 Eliz. c. 16, repealed.
Witchcraft, and dealinge with Evill (nul Spirits.
the same Feaste, utterlie repealed.
. Invoking or
11. And for the better restrayninge the said offenses and more se
punishinere the same,
• spirits, ' ' evil
&
an
fu
of tm or
)i! let
of i the Off.!
he it further
enacted ,
by • i
of r or (|
BE it enacted, by the King our Sovraigne Lorde, the Lordes Spirituall and Temporall and the Comons in this present Parliament assembled, ami by the autboritie of the same. That the statute made in the fifth ycire of the raigne of our late Sovraigne Lady, of most famnn* and happie memorie, Queene Elizabeth, intituled an Acte agai: conjuration?, inchantments and witchcrafts, be from the Feaste of St. IN ell the Archangell nexte cominge, for and concerninge all offences to omitted atler
consultinu wnlj f
P' sh hi.
is a the of s Wicked
fil-
{< lo
the
autboritie
-r-i
c
i hat if any person or persons, alter the saide reaste oi
Archangell next cominge, shall use, practise or exercise
afores
in--
,
i
St. Michae!
invocation or
aitn.
Tliu of it case
FTh exic-iv
olsewi
An A the. wii
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ATTACHMENT C
Condon v. Haley Memorandum of Governor and Attorney General in Opposition to Preliminary Injunction
1871 R.S. 440
Page 1 of 2
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OF THE DOMESTIC RELATIONS.
Murriage.
Chaptkr XCIX, Of
0* Oj Certain Rights and Liabilities of Husband and •
Wife. CI. Of Guardians and Words. CI I.
CHI.
Oj the Change of Navies.
Oj Masters, Apprentices and Laborers.
CHAPTER XCIX. Of
Marriage.
Sec. J, Who may contract matrimony. 2. Marriage contracted and consumma ted, indissoluble.
Sec. 3. Void marriages; proviso.
Secticust 1. That all persons, except idiots and lunatics, not prohibited by this Section, may lawfully contract matrimony. Xo man shall marry his mother, grand-mother, daughter, grand-daughter, step-mother, sister, grand-father's wife, son's wife, grand-son's wife, wife's mother, wife's grand
mother, wife's daughter, wife's grand-daughter, brother's daughter, sister's
daughter, father's sister, or mother's sister.
No woman shall marry her
father, grand-father, son, grand-son, step-father, brother, grand-mother's husband, daughter's husband, grand-daughter's husband, husband's father,
husband's grand-father, husband's sou, husband's grand-son, brother's son, sister's son, father's brother, or mother's brother.
Sec. 2. All marriages contracted between lawful persons, and solem
nized in the face of the church, and consummate with bodily knowledge, or fruit of children or child shall be deemed, judged and taken to J
lawful, good, just and indissoluble, notwithstanding any pre-coutrac
pre-contracts of matrimony not consummate with bodily which either of the parties so married or both shall have ,1U'1
other person or persons before the time of contracting ^nch ma
