3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Katherine Bradacs and Tracie Goodwin,

)
)
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,
)
)
Defendants.
)
_____________________________ _____ )

Civil Action No. 3:13-cv-02351-JMC

ALTERNATIVE
MOTION FOR STAY

Should, arguendo, this Court grant summary judgment to the Plaintiffs, the Defendant
Attorney General respectfully requests that this Court grant a stay pending appeal to the Court of
Appeals for the Fourth Circuit pursuant to Rule 62, FRCP. The Attorney General respectfully
requests that any order of this Court granting Plaintiffs relief be stayed until appellate review is
completed at the Court of Appeals or that, alternatively, this Courts order be stayed until such
time as the Defendant can obtain a ruling from the Court of Appeals on a motion made in that
Court to stay a summary judgment ruling.
Today the Court has denied in part, the Defendants Motion for Judgment on the
Pleadings, but dismissed the Governor on grounds of Eleventh Amendment Immunity. The
Court has not yet ruled on the Plaintiffs Motion for Summary Judgment, and the Attorney
General maintains his position that the Motion should be denied. Without waiving any of his
defenses in this action, but as a precaution in the event, arguendo, this Court should grant
summary judgment to the Plaintiffs, the Attorney General respectfully requests that this Court
stay its Order until the Court of Appeals can rule on any appeal by him.

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 2 of 17

Standards for a Stay / Introduction

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 oncein
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.
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) 1; Bourke v. Beshear, 996 F. Supp. 2d 542, 558 (W.D. Ky. 2014 ) 2
0F

1F

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.
2

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.
2

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 3 of 17

This analysis directly applies here. Although the Bostic v. Schaefer, 760 F.3d 352 (4th
3

Cir. 2014) , case is decided and the United States Supreme Court denied certiorari, the Panel did
2F

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. Moreover, last
weeks decision in DeBoer v. Snyder, No. 14-1341, 2014 WL 5748990 (6th Cir. Nov. 6, 2014),
which upheld same-sex marriage bans of four states, may set the stage for the United States
Supreme Court to agree to decide the constitutional issues raised in that case and other same-sex
marriage cases. Therefore, the State respectfully requests that any order of this Court granting
Plaintiffs relief be stayed until appellate review is completed at the Court of Appeals or that,
alternatively, this Courts order be stayed until such time as the Defendant can obtain a ruling
from the Court of Appeals on a motion made in that Court to stay a summary judgment ruling.
The issues that we would raise at the Court of Appeals would be substantial, as discussed
in more detail below. Baker v. Nelson, 409 U.S. 810 (1972) is controlling precedent instead of
Bostic on the constitutional issues, and the State raised defenses not considered by Bostic
including the Federalism, Eleventh Amendment and standing defenses discussed below.

To

Cert. denied sub nom. Rainey v. Bostic, No. 14-153, 2014 WL 3924685 (U.S. Oct. 6, 2014) and
cert. denied, No. 14-225, 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)
3

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 4 of 17

the extent that, arguendo, Bostic is controlling (United States v. Collins, 415 F.3d 304, 311 (4th
Cir. 2005)), the State also, respectfully, plans to argue against precedent on the issues decided by
Bostic and to request that the initial hearing be heard en banc. Among other errors, which place
Bostic in conflict with DeBoer, supra, the Panel misapplied Loving v. Virginia, 388 U.S. 1
(1967). As more fully discussed below, Loving removed a racial restriction superimposed on
marriage without changing its elements whereas Bostic, altered the inherent, defining element of
marriage a union of a man and a woman.
Our position in this case is not one of advocacy on the question of whether same-sex
marriage should be permitted that decision has been made by the legislature and voters of the
State of South Carolina- it is the defense of what the law is. If the law is to be changed, it should
be through the voters and the legislature, as it has in many other states, rather than through the
Court.
The following discussion demonstrates that the State meets the standards for a stay in
Long v. Robinson, supra.
1
The State Will Likely Prevail on he Merits of the Appeal
a
Fundamental Tenets of Federalism Recognize that
The State Retains the Power to Define Marriage

Just last year, in United States v. Windsor, 133 S.Ct. 2675, 2691 (2013), the Supreme
Court reaffirmed that [t]he definition of marriage is the foundation of the States broader
authority to regulate the subject of domestic relations. . . . Thus, the federal courts as a general
rule do not adjudicate marital status where there might otherwise be a basis for federal

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 5 of 17

jurisdiction. Id. South Carolina has, by constitutional amendment, statute, and common law,
defined marriage traditionally as between one man and one woman.

It is our view that

fundamental and overriding principles of federalism require deference to the States definition
and thus reversal of the District Court.
The one Supreme Court decision addressing the question of whether the 14th Amendment
compels a state to allow same-sex marriage is Baker v. Nelson, supra. Baker dismissed an
appeal from the Minnesota Supreme Court for want of a substantial federal question on the
precise issue here: whether the Due Process or Equal Protection Clause provide a federal
constitutional right of same-sex couples to marry. Baker, 191 N.W.2d 185 (Minn. 1971). The
United States Supreme Court in Baker necessarily rejected the argument made before the
Minnesota Supreme Court that, based upon Loving v. Virginia, 388 U.S. 1 (1967), same-sex
marriage is a fundamental right. The Minnesota Supreme Court concluded there is a clear
distinction between a marital restriction based merely on race and one based upon the
fundamental difference in sex. 191 N.W.2d 187. Thus, Baker found that the states definition
of marriage was rational.

The summary dismissal in Baker was thus consistent with the

longstanding principle of federalism, deferring to the States definition of marriage.

In Bostic, the Fourth Circuit panel deemed it could ignore Bakers upholding of
Minnesotas traditional definition of marriage. The divided Bostic panel 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.

However, both the Bostic panel and the District Court were not free to disregard Baker but were
instead required to follow it because of the prior panel rule of this Circuit. The command set
forth in Hicks v. Miranda, 422 U.S. 322, 344 (1975) is that lower courts are bound by a summary

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 6 of 17

Supreme Court decision until such time as the [Supreme] Court informs [them] that [they] are
not.
In this Circuit, one panel cannot ignore a decision by another panel. McMellon v.
United States, 387 F.3d 329, 332 (4th Cir. 2004) (citing cases). A panel must thus follow the
earlier of conflicting opinions. Id. Beginning in 1975, with Hogge v. Johnson, 526 F.2d 833,
835 (4th Cir. 1975), the Court, adhering to the requirement of Hicks v. Miranda, supra, defined a
summary dismissal for want of a substantial federal question by the Supreme Court to be a
perfectly clear precedent that is binding on us. Even though the Fourth Circuit panel disagreed
with the Supreme Courts summary dismissal, believing there to be a substantial federal
question, former Justice Tom Clark then sitting on the panel stated that the Court was
foreclosed by Hicks holding and thus the summary dismissal was binding. Hogge, 526 F.2d
at 836 (Clark, T., concurring).
Subsequent Fourth Circuit decisions, consistently applying the prior panel rule, have
continued to find, based upon Hogge, that summary decisions by the Supreme Court must be
followed. See Thonen v. Jenkins, 517 F.2d 3, 7 (4th Cir. 1975); Goldfarb v. Sup. Ct. of Va., 766
F.2d 859, 862 (4th Cir. 1985); Idaho Assoc. of Naturopathic Physicians, Inc. v. U.S. Food and
Drug. Adm., 582 F.2d 849, 853-854 (4th Circ. 1978); Repub. Party of N.C. v. Hunt, 991 F.2d
1202, 1204 (4th Cir. 1993) (Phillips, J., dissenting from denial of rehearing en banc);
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].
These decisions reject the idea that a lower court is at liberty to decide that a summary decision
by the Supreme Court has been abandoned or superseded by doctrinal developments.

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 7 of 17

Accordingly, applying the prior panel rule, Hogge and its progeny must control, with
respect to Baker, rather than Bostic. Any subsequent doctrinal developments must be assessed
by the Supreme Court, not by the Fourth Circuit or by the District Court.
Indeed, the Sixth Circuit, in DeBoer v. Snyder, supra, recently recognized Bakers
binding force. According to that Court, Hicks requires a summary decision to be followed and
[i]t matters not whether we think the decision was right in its time, remains right today, or will
be followed in the future. Only the Supreme Court may overrule its own precedents. . . . In
DeBoers view, the Supreme Court has neither overruled Baker by name or by outcome. Thus,
[t]he Court has yet to inform us that we are not [bound], and we have no license to engage in
a guessing game about whether the Court will change its mind or, more aggressively, to assume
authority to overrule Baker ourselves. Id. at 5. Accordingly, Baker, a decision which upheld as
constitutional the States traditional definition of marriage, must be followed, until overruled.
Furthermore, any conclusion regarding federalism by Bostic is not binding either. Bostic
did not address the same federalism argument we are making. Our argument, in contrast to
Bostic, and recognized in United States v. Windsor, supra 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 long-held view that federal courts
may not adjudicate marital status. Windsor, supra, 133 S.Ct. at 2691. As Justice Stevens
concluded in Newdow, . . . [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. That is
the case here. This deference to state courts is, of course, part and parcel the result of the States

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 8 of 17

power to define marriage, a proper exercise of its sovereign authority within our federal system,
all in the way that the Framers of the Constitution intended. Windsor, supra, at 2692.
In DeBoer, the Sixth Circuit recently recognized that Windsor, at its heart, was based
upon federalism and thus reaffirmed the States prerogative to define marriage whether
traditionally or to extend the definition to include gay couples and that Congress had no power
to enact unusual legislation that interfered with the States long-held authority to define
marriage. Id. at 20, referencing Windsor, 133 S.Ct. at 2692-93. Therefore, [a] decision
premised on heightened scrutiny under the Fourteenth Amendment that redefined marriage
nationally to include same-sex couples . . . would divest the States of their traditional authority
over this issue. . . . Id.
This traditional authority of the State has led scholars, as well as many courts,
including the Fourth Circuit, to conclude that the domestic relations exception is applicable
even to federal question jurisdiction, thereby depriving a federal court of subject matter
jurisdiction. As one scholar has documented, [n]ot infrequently, courts have dismissed federal
question cases for lack of subject matter jurisdiction, citing the domestic relations exception.
Harbach, Is The Family a Federal Question? 660 Washington and Lee L.Rev. 131 146, and
cases collected at n. 59.
Among the numerous federal question cases cited by Professor Harbach is this Circuits
decision in Wilkins v. Rogers, 581 F.2d 399, 403-404 (4th Circ. 1978). Wilkins involved, among
other things, a wifes suit against her former husband regarding repayment of money allegedly
advanced during the marriage as well as support and maintenance. Plaintiffs 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 courts diversity and federal question

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 9 of 17

jurisdiction.
This 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 Wilkins, . . . 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 Wilkins went on to apply other forms of abstention, it is clear, as Professor
Harbach concludes, that Wilkins stands for the proposition that, based upon federalism, the
domestic relations exception deprives federal courts of federal question jurisdiction. Again,
the prior panel rule governs here, thereby requiring this Court to follow Wilkins instead of
Bostic. Like Baker v. Nelson, supra, which dismissed the same sex marriage issue for want of a
substantial federal question, Wilkins dismissed a federal claim of sex discrimination regarding a
marital dispute for precisely the same reason Baker did want of a federal question. Therefore,
this Court lacks subject matter jurisdiction and is obligated to follow Wilkins, as well as Baker.
Moreover, aside from subject matter jurisdiction grounds, basic principles of federalism
require reversal. According to Newdow, as well as Windsor, federal courts must honor the
States sovereign right, notwithstanding a constitutional challenge. The state courts may and
are required to hear such challenges. Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975). In
this instance, the language contained in Art. XVII, 15 has never been interpreted by South
Carolina courts. State courts have yet to define 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

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 10 of 17

affect the outcome, particularly where a South Carolina court must address the breadth of the
phrase contracts or other legal instruments. Such a contract provision was not contained in the
Virginia constitutional amendment addressed in Bostic and its phraseology could be deemed to
have constitutional significance in this case. Compare Romer, supra. The protection of contract
rights in South Carolinas Constitution assuredly suggest no animus.

Appellees federal

constitutional claims are intertwined with family law rights, not yet defined by state courts.
Deference to the courts of South Carolina to determine this foundation or the States broader
authority, Windsor, supra at 2691, does not mean state courts will not consider nor adjudicate
any constitutional claims which may be raised. However, at the same time, state courts and state
law must be allowed to define marriage, as it has done since the founders of the republic.
In summary, the Bostic panel possessed no authority to disregard Baker, which
constitutes the one Supreme Court decision on the merits regarding same-sex marriage. While
the panel 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. Neither the Bostic was notfree
to determine the Supreme Courts doctrinal developments. DeBoer, supra. Nor is this Court.
Moreover, the Fourth Circuit panel did not consider the issue of subject matter jurisdiction or the
overriding principles of federalism as it relates to the longstanding prerogative of the State to
define marriage as recognized in both Wilkins, as well as Newdow, Windsor and DeBoer. As the
Court recently stated in DeBoer, the Framers, in dividing sovereignty between the federal
government and the State, contemplated that the States would exercise . . . their historic and . . .
nearly exclusive power . . . [of] defining marriage as they see it. DeBoer, Id. at 6.
b

10

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 11 of 17

Eleventh Amendment Immunity

Ex Parte Young, 209 U.S. 123 (1908). involved an injunction to prevent the Attorney
General from enforcing provisions of a railroad rate statute in Minnesota which included
criminal penalties. He had specific enforcement authority under that law and had commenced
proceedings to enforce compliance contrary to a federal court order.
As has been recognized by the Court of Appeals, general enforcement authority to
enforce the laws of the State is insufficient to invoke the Ex Parte Young exception. McBurney
v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010); Waste Mgmt. Holdings, Inc. v. Gilmore, 252
F.3d 316, 331 (4th Cir. 2001).
The Attorney Generals authority to appear for the State in Court and advise State
officers is patently insufficient to invoke Young. As stated in Robicheaux v. Caldwell, 986 F.
Supp. 2d 749, 752 (E.D. La. 2013), reconsideration denied (Jan. 13, 2014) [t]he Attorney
General's sweeping responsibility to enforce the laws of the State . . . lacks the Ex parte Young
specificity nexus between the Attorney General and the alleged unconstitutional provisions that
is essential to defeat sovereign immunity..
The Attorney General is not subject to suit because he brought an action in the name of
the State requesting the State Supreme Court to issue an injunction to Probate Judge Condon,
defendant herein, to prevent him from issuing same-sex marriage licenses pending a decision in
other pending Federal litigation State ex rel Wilson v. Condon, No. 2014-002121, 2014 WL
5038396, at *1-2 (S.C. Oct. 9, 2014. The same-sex marriage statutes at issue do not give the
Attorney General any authority to prosecute probate judges for issuing licenses, nor do they
impose criminal penalties for violations. The Courts, rather than the Attorney General, have
judicial power over the Probate Judges in this State. S.C. Code Ann. 14-23-1010(The probate

11

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 12 of 17

court of each county is part of the unified judicial system of this State.); S.C. Const. art. V, 4
(The Chief Justice of the Supreme Court shall be the administrative head of the unified judicial
system.).

c
Plaintiffs Lack Standing To Sue the Defendants
This argument is not about whether these Plaintiffs- Appellees have alleged injury. It is
whether that alleged injury has a causal connection to the Defendants. It does not. Bishop v.
Oklahoma, 333 F. App'x 361, 364 (10th Cir. 2009)(Bishop II) stated that 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. . . . Id. the Tenth Circuit found that the Oklahoma
Attorney General's generalized duty to enforce state law, alone, is insufficient to subject t[him]
to a suit challenging a constitutional amendment [he has] no specific duty to enforce. Similarly,
the South Carolina Attorney General has no specific duty to enforce (Id.) South Carolinas
same-sex marriage bans, and Plaintiffs lack standing to sue them.
d
Respectfully, Bostic was wrongly decided
Although Bostic applied strict scrutiny to its analysis of the same-sex marriage claims in
that case, the dissent by Judge Niemeyer in the 2-1 decision applied rational basis review and
would have upheld Virginia law. Because the Defendants believe that Judge Niemeyers opinion
was the correct one, they offer his analysis in argument against the Bostic majority opinion. 760
F.3d at 385. These points that no fundamental right to same-sex marriage exists, that limiting
marriage to the union of a man and a woman does not implicate a suspect class requiring

12

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 13 of 17

heightened scrutiny, that same-sex marriage restrictions do not discriminate on the basis of sex
and that South Carolinas definition of marriage, dating from colonial times, a union of a man
and a woman is supported by rational grounds.
What [the Court has] the authority to decide . . . is a legal question: Does the Fourteenth
Amendment to the United States Constitution prohibit a State from defining marriage as a
relationship between one man and one woman?, 2014 WL 5748990, at *1. DeBoer answered
that question with a strong negative. The same conclusion applies to South Carolina law. 4
3F

From the founding of the Republic to 2003, every State defined marriage as a
relationship between a man and a woman, meaning that the Fourteenth Amendment permits,
though it does not require, States to define marriage in that way.DeBoer, 2014 WL 5748990, at
9. The Sixth Circuit recognized that Loving v. Virginia, 388 U.S. 1 (1967) did not change the
historic definition of marriage unlike the inflated view of Loving by two members of the Bostic
panel. As stated by DeBoer: When the Court decided Loving, marriage between a man and a
woman no doubt [was] thought of . . . as essential to the very definition of that term. Id. at 16.
Loving addressed, and rightly corrected, an unconstitutional eligibility [race] requirement for
marriage; it did not create a new definition of marriage. . . . When Loving and its progeny used
the word marriage, they did not redefine the term but accepted its traditional meaning. Id. at 16
and 17.
The Court found that no fundamental right to same-sex marriage and recognized that
[t]he Supreme Court has never held that legislative classifications based on sexual orientation
receive heightened review and indeed has not recognized a new suspect class in more than four
4

As discussed above, under Fourth Circuit precedent, Baker v. Nelson controls this Courts
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.
13

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 14 of 17

decades. Id. at p. 18.

DeBoer relied on two grounds to find the bans on same-sex marriage to be rational:
A dose of humility makes us hesitant to condemn as unconstitutionally irrational a
view of marriage shared not long ago by every society in the world, shared by
most, if not all, of our ancestors, and shared still today by a significant number of
the States. Hesitant, yes; but still a rational basis, some rational basis, must exist
for the definition. What is it? Two at a minimum suffice to meet this low bar. One
starts from the premise that governments got into the business of defining
marriage, and remain in the business of defining marriage, not to regulate love but
to regulate sex, most especially the intended and unintended effects of malefemale intercourse. Imagine a society without marriage. It does not take long to
envision problems that might result from an absence of rules about how to handle
the natural effects of male-female intercourse: children.
Id. at 9.
By creating a status (marriage) and by subsidizing it (e.g., with tax-filing
privileges and deductions), the States created an incentive for two people who
procreate together to stay together for purposes of rearing offspring. That does not
convict the States of irrationality, only of awareness of the biological reality that
couples of the same sex do not have children in the same way as couples of
opposite sexes and that couples of the same sex do not run the risk of unintended
offspring. That explanation, still relevant today, suffices to allow the States to
retain authority over an issue they have regulated from the beginning.
To take another rational explanation for the decision of many States not to expand
the definition of marriage, a State might wish to wait and see before changing a
norm that our society (like all others) has accepted for centuries. That is not
preserving tradition for its own sake. No one here claims that the States original
definition of marriage was unconstitutional when enacted. . . . A State still
assessing how [same-sex marriage] has worked, whether in 2004 or 2014, is not
showing irrationality, just a sense of stability and an interest in seeing how the
new definition has worked elsewhere.
Id. at 11.
So far, not a single United States Supreme Court Justice in American history has
written an opinion maintaining that the traditional definition of marriage violates
the Fourteenth Amendment. No one would accuse the Supreme Court of acting
irrationally in failing to recognize a right to same-sex marriage in 2013. Likewise,
we should hesitate to accuse the States of acting irrationally in failing to recognize
the right in 2004 or 2006 or for that matter today.

14

3:13-cv-02351-JMC

Id. at 22.

Date Filed 11/10/14

Entry Number 91

Page 15 of 17

For these reasons and those set forth in our Memorandum in Opposition to

Preliminary Injunction, South Carolina law is Constitutional.

e.
DeBoer Soundly Rejected the Recognition Claim in that Case
The plaintiffs in these cases do not claim that refusal to recognize out-of-state gay
and lesbian marriages violates the Full Faith and Credit Clause, the principal
constitutional limit on state choice-of-law rules. Wisely so. The Clause does not
require a State to apply another State's law in violation of its own legitimate
public policy. Nevada v. Hall, 440 U.S. 410, 422 (1979). If defining marriage as
an opposite-sex relationship amounts to a legitimate public policyand we have
just explained that it doesthe Full Faith and Credit Clause does not prevent a
State from applying that policy to couples who move from one State to another.
The plaintiffs instead argue that failure to recognize gay marriages celebrated in
other States violates the Due Process and Equal Protection Clauses. But we do not
think that the invocation of these different clauses justifies a different result. As
shown, compliance with the Due Process and Equal Protection Clauses in this
setting requires only a rational relationship between the legislation and a
legitimate public purpose. And a State does not behave irrationally by insisting
upon its own definition of marriage rather than deferring to the definition adopted
by another State. Preservation of a State's authority to recognize, or to opt not to
recognize, an out-of-state marriage preserves a State's sovereign interest in
deciding for itself how to define the marital relationship. It also discourages
evasion of the State's marriage laws by allowing individuals to go to another
State, marry there, then return home. Were it irrational for a State to adhere to its
own policy, what would be the point of the Supreme Court's repeated holdings
that the Full Faith and Credit Clause does not require a State to apply another
State's law in violation of its own public policy? Id.
DeBoer v. Snyder, No. 14-1341, 2014 WL 5748990, at *24 (6th Cir. Nov. 6, 2014). That
reasoning squarely applies here. Plaintiffs made a Full Faith and Credit Claim as well as
Equal Protection and Due Process, but all are likely to fail on appeal.
2
The State will suffer irreparable injury if the stay is denied, the other parties will not be
substantially harmed by the stay, and the public interest will be served by granting the stay
The State will suffer irreparable injury if the stay is denied because same-sex marriages
will be allowed pending a decision on the merits of the appeal. If the State prevails on appeal,
15

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 16 of 17

same-sex marriages will end creating legal confusion as to the status of those married in the
interim. For these reasons, the Plaintiffs will not be substantially harmed. Although they want
their marriage recognized now, they will get their wish if they prevail in this appeal. The public
interest will be served by not only avoiding confusion, but more importantly, having State laws
fully considered by this Court.

Regardless of how this case is ultimately decided, a full

consideration of South Carolinas law, particularly by the en banc Court, will give the public
confidence that South Carolinas historic definition of marriage as a union of a man and a
woman has been given careful review.
CONCLUSION
The Attorney General respectfully requests that this Court stay any, arguendo, decision
in this case until such time as the Fourth Circuit can decide its appeal, or alternatively, he can
seek and receive a ruling on a stay request of that Court.

Respectfully submitted,
ALAN WILSON
Attorney General
Federal ID No.10457
ROBERT D. COOK
Solicitor General
Federal ID No. 285
Email: bcook@scag.gov
/s/ J. Emory Smith, Jr.
J. EMORY SMITH, JR.
Deputy Solicitor General
Federal ID No. 3908
Email: esmith@scag.gov

[Signature block continues next page]

16

3:13-cv-02351-JMC

Date Filed 11/10/14

Entry Number 91

Page 17 of 17

IAN P. WESCHLER
Assistant Attorney General
Federal ID No. 11744
BRENDAN J. MCDONALD
Assistant Attorney General
Federal ID No. 10659
Post Office Box 11549
Columbia, South Carolina 29211
Phone: (803) 734-3680
Fax: (803) 734-3677
Counsel for Defendant
Attorney General

November 10, 2014

Rule 7.02 Consultation

Counsel for Defendant consulted with counsel for Plaintiffs, and they declined to consent to the
stay.
/s/ J. Emory Smith, Jr.
J. EMORY SMITH, JR.
Deputy Solicitor General

November 10, 2014

17