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5:13-cv-00077 #42

5:13-cv-00077 #42

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Published by Equality Case Files
Doc 42 - Plaintiffs' Opposition to Defendant Staunton Circuit Court Clerk Roberts' Motion to Dismiss
Doc 42 - Plaintiffs' Opposition to Defendant Staunton Circuit Court Clerk Roberts' Motion to Dismiss

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Published by: Equality Case Files on Sep 30, 2013
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07/01/2014

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1
In the United States District CourtFor the Western District of Virginia
Harrisonburg DivisionJOANNE HARRIS and JESSICA DUFF, andCHRISTY BERGHOFF and VICTORIA KIDD,on behalf of themselves and all others similarlysituated,
Plaintiffs
,v.ROBERT F. MCDONNELL, in his officialcapacity as Governor of Virginia; JANET M.RAINEY, in her official capacity as State Registrarof Vital Records; THOMAS E. ROBERTS, in hisofficial capacity as Staunton Circuit Court Clerk, 
 Defendants
.No. 5:13-cv-00077
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TODEFENDANT ROBERTS’ MOTION TO DISMISS
Plaintiffs submit this Memorandum of Law in Opposition to Defendant Roberts’ Motionto Dismiss.
INTRODUCTION
Plaintiffs Joanne Harris and Jessica Duff, and Christy Berghoff and Victoria Kidd(collectively, “Plaintiffs”) are committed same-sex couples who seek the freedom to marry.They brought this putative class action seeking declaratory and injunctive relief for the violationof their and other class members’ rights under the Fourteenth Amendment caused byDefendants’ enforcement of Virginia’s statutory and constitutional provisions excluding same-sex couples from marriage and barring recognition of the marriages some have entered in other jurisdictions (the “marriage bans”). All Plaintiffs brought official-capacity claims against
Case 5:13-cv-00077-MFU-RSB Document 42 Filed 09/11/13 Page 1 of 12 Pageid#: 266
 
2Governor Robert F. McDonnell, who has moved to dismiss the claims against him, and the StateRegistrar of Vital Records, Janet M. Rainey, who has answered the complaint. Plaintiffs Harrisand Duff, an unmarried couple, also brought official-capacity claims against Staunton CircuitCourt Clerk Thomas E. Roberts (“Roberts”), who filed the motion to dismiss at issue here.
ARGUMENT
In his motion to dismiss, Roberts primarily argues that the claims of Plaintiffs Harris andDuff should be dismissed for lack of standing and ripeness under Federal Rule of CivilProcedure (“Rule”) 12(b)(1). Mem. In Supp. of Def. Roberts’ Mot. to Dismiss (“Mem.”) 9-13.These arguments are frivolous. Roberts concedes that Plaintiffs Harris and Duff visited hisoffice and inquired about marriage.
 Id.
3; Aff. of Laura Moran (“Moran Aff.”) ¶¶ 2-3. Heagrees that he told them Virginia law does not permit same-sex couples to marry. Mem. 3;Moran Aff. ¶ 3. Roberts complains mainly that –
after he confirmed that marriage wasunavailable to them
– Plaintiffs Harris and Duff did not specifically ask for a marriage license, orinsist on taking every component step in the marriage license process for which he already hadstated they were ineligible. Mem. 3 (asserting that Plaintiffs Harris and Duff did not ask for amarriage license, complete an application for a marriage license, ask about the fee for a marriagelicense, or tender the fee for a marriage license). Plaintiffs Harris and Duff did in fact inquireabout a marriage license, as they testify through concurrently submitted declarations (
see
Decl.of Joanne Harris (“Harris Decl.”) ¶¶ 4-5; Decl. of Jessica Duff (“Duff Decl.”) ¶¶ 4-5), but asdescribed further below, no such request is even required under standing and ripeness principles.Roberts seems most concerned, however, with whether Plaintiffs Harris and Duff areotherwise eligible to marry in the state, as they expressly alleged they were in the complaint.Mem. 3-4, 12 (noting that Plaintiffs Harris and Duff did not testify under oath to their eligibility;
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3arguing that the case is not “fit for review” because Roberts had not been able to “consider all of the necessary facts and evidence” to make an “official determination” as to their eligibility);Compl. ¶ 44 (alleging that Plaintiffs Harris and Duff meet all eligibility requirements to marryunder Virginia law, except for the fact that they are a same-sex couple). Federal standing andripeness doctrines require no such showing for claims to proceed against an absolute barrier inthe law such as the marriage bans. To end all doubt, however, Plaintiffs Harris and Duff nowhave confirmed their eligibility under oath. Harris Decl. ¶¶ 7-10; Duff Decl. ¶¶ 7-10;
see alsoKerns v. United States
, 585 F.3d 187, 192 (4th Cir. 2009) (under a Rule 12(b)(1) motion thecourt may look beyond the pleadings to evidence without converting the motion to one forsummary judgment).
I.
 
PLAINTIFFS HARRIS AND DUFF HAVE STANDING AND THEIRCLAIMS ARE RIPE.
 Three elements comprise the “irreducible constitutional minimum of standing” underArticle III of the federal Constitution, all of which are satisfied here:First, the plaintiff must have suffered an injury in fact – an invasion of a legally protectedinterest which is (a) concrete and particularized, and (b) actual or imminent, notconjectural or hypothetical. Second, there must be a causal connection between theinjury and the conduct complained of – the injury has to be fairly traceable to thechallenged action of the defendant, and not the result of the independent action of somethird party not before the court. Third, it must be likely, as opposed to merelyspeculative, that the injury will be redressed by a favorable decision.
 Lujan v. Defenders of Wildlife
, 504 U.S. 555, 560-61 (1992) (internal quotation marks, citations,and alterations omitted). Roberts does not argue that the third element – injury redressable by afavorable decision – is lacking here. Rather, he challenges the existence of the first twoelements. Mem. 9 (claiming that Plaintiffs Harris and Duff “have not suffered an injury that is
Case 5:13-cv-00077-MFU-RSB Document 42 Filed 09/11/13 Page 3 of 12 Pageid#: 268

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