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2:13-cv-00395 #41

2:13-cv-00395 #41

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Published by Equality Case Files
Doc 41 - Schaefer's Brief in support of Motion for Summary Judgment
Doc 41 - Schaefer's Brief in support of Motion for Summary Judgment

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Published by: Equality Case Files on Oct 04, 2013
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03/03/2014

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Page 1 of 15
UNITED STATES DISTRICT COURT FORTHE EASTERN DISTRICT OF VIRGINIA-NORFOLK DIVISION-
TIMOTHY B. BOSTIC, et al.Plaintiffs,v. Case No.: 2:13cv395JANET M. RAINEY, et al.Defendants.
BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
 NOW COMES Defendant George E. Schaefer, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court (hereinafter “Clerk Schaefer”), by counsel, and files this Brief inSupport of Motion for Summary Judgment pursuant to Fed. R. Civ. Pro. R. 56, L.R. 7 and L.R.56 as follows:
Procedural Posture
Plaintiff’s Timothy B. Bostic and Tony C. London (hereinafter “Bostic” and “London”)are two men who have been unable to obtain a marriage license to marry each other in Virginia.On July 18, 2013, Bostic and London filed their Complaint pursuant to 42 U.S.C. § 1983 againstGovernor Robert F. McDonnell, Attorney General Kenneth T. Cuccinelli, and Clerk Schaefer.(NEF Doc. 1.) The Complaint sought declaratory and injunctive relief regarding the treatment of same-sex marriages in the Commonwealth of Virginia under the Virginia Constitution and theVirginia code. The Governor and the Attorney General filed motions to dismiss, which weredismissed as moot because Plaintiffs voluntarily dismissed those Defendants. (NEF Doc. 19.)Plaintiffs have amended their Complaint to add two additional Plaintiffs, Carol Schall and MaryTownley (hereinafter “Schall” and Townley”), and one new Defendant, Janet Rainey in her 
Case 2:13-cv-00395-AWA-LRL Document 41 Filed 09/30/13 Page 1 of 15 PageID# 345
 
Page 2 of 15official capacity as State Registrar of Vital Records (hereinafter “Registrar Rainey”). (NEF Doc.18.) The Amended Complaint seeks the same relief but included additional facts related to thenew Plaintiffs and Defendants. The parties agreed to submit this case to the Court on crossmotions for summary judgment pursuant to a set schedule. (NEF Doc. 17.)
Statement of Uncontested Facts
For the purposes of this Motion for Summary Judgment
1
, Clerk Schaefer contends thereis no genuine issue regarding the following undisputed facts:
 
1.
 
Bostic and London are two gay men residing in the City of Norfolk, Virginia.(NEF Doc. 18 ¶¶ 11-12 and 258.)2.
 
Schall and Townley are two lesbian women residing in Chesterfield County,Virginia. (NEF Doc. 18 ¶¶13-14 and 29.)3.
 
Clerk Schaefer is the Clerk of Court for the Norfolk Circuit Court. (NEF Doc. 18 ¶ 15.)4.
 
Bostic and London attempted to apply for a marriage license at the Norfolk Circuit Clerk’s office, but they could not apply for and receive a marriage license because they are the same sex. (NEF Doc. 18 ¶ 26.)5.
 
Bostic and London had no direct interaction with Clerk Schaefer and did notsubmit an actual application for marriage. Rather, on July 1, 2013 when theyattempted to obtain a marriage license, they only dealt directly with staff or other  persons working in the Norfolk Circuit Court Clerk’s office. (NEF Doc. 18 ¶ 26; NEF Doc. 23 ¶ 26.)
1
In the event this case continues beyond the summary judgment stage, Clerk Schaefer reserves the right to contestany facts not specifically admitted in his Answer to the Amended Complaint.
Case 2:13-cv-00395-AWA-LRL Document 41 Filed 09/30/13 Page 2 of 15 PageID# 346
 
Page 3 of 156.
 
The Amended Complaint makes no allegations that Clerk Schaefer or any personunder his control and direction took any action or omission whatsoever regardingSchall and Townley. Thus, Clerk Schaefer has not deprived Schall and Townleyof any Constitutional or civil right while acting under color of state law. (NEFDoc. 18 at passim.)
Argument
The issues raised in Plaintiffs’ Amended Compliant are a political and social hot button.The idea of same sex marriage, when compared to the historical, traditional view of marriage isrelatively novel. It was not until this century that any state government recognized a marriage between two persons of the same sex. This area of the law and society is rapidly changing, and the various states have addressed it in many different ways. However, only a minority of statescurrently recognize a marriage between two persons of the same sex.
2
Certainly, recent yearshave shown a change in the public perception of same sex marriage. Changes in the lawaffecting such broad social policies are a proper function of the legislative body. Indeed, severalstates have legislatively passed laws allowing or recognizing same sex marriage. Moreover, thecurrent state of Supreme Court jurisprudence upholds state bans on same sex marriage. Therecent opinions from the Supreme Court did not change this precedent. See United States v.Windsor, __ U.S. __, 133 S. Ct. 2675 (2013); Hollingsworth v. Perry, __ U.S. __, 133 S. Ct.2652 (2013).Plaintiffs’ Amended Complaint seeks declaratory and injunctive relief under 42 U.S.C. §1983, and they ask this Court to find Va. Const. Art. I, § 15-A and Va. Code §§ 20-45.2—45.3unconstitutional under the Due Process Clause of the Fourteenth Amendment and under the
2
Same sex marriages are only allowed in 13 states. In contrast, 35 states have a prohibition on same sex marriagethrough a state constitutional amendment and/or state law.
Case 2:13-cv-00395-AWA-LRL Document 41 Filed 09/30/13 Page 3 of 15 PageID# 347

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