1:14-cv-00208 #50

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION
CARI. D. SEARCY and KIMBERLY
MCKEAND, individually and as parent and
next friend of K.S., a minor,
Plaintiffs,
v.
LUTHER STRANGE, his official capacity as
Attorney General of the State of Alabama,
Defendant.
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Civil Action No.
1:14-cv-208-CG-N
DEFENDANTS NOTICE OF FILING OF PROPOSED ORDER
AND PROPOSED FINDINGS OF FACTS
AND CONCLUSIONS OF LAW
Alabama Attorney General Luther Strange, pursuant to this Courts scheduling orders and
Local Rule 7.2, respectfully submits the attached Proposed Order and Proposed Findings of Fact
and Conclusions of Law, in reference to Defendant Stranges Motion for Summary Judgment
and in opposition to the Plaintiffs Motion for Summary Judgment.
Case 1:14-cv-00208-CG-N Document 50 Filed 10/17/14 Page 1 of 22
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Respectfully submitted,
LUTHER STRANGE (ASB-0036-G42L)
Attorney General
s/ James W. Davis
James W. Davis (ASB-4063-I58J)
Laura E. Howell (ASB-0551-A51H)
Assistant Attorneys General
STATE OF ALABAMA
OFFICE OF THE ATTORNEY GENERAL
501 Washington Avenue
Montgomery, Alabama 36130-0152
(334) 242-7300
(334) 353-8440 (fax)
jimdavis@ago.state.al.us
lhowell@ago.state.al.us
Attorneys for Alabama Attorney General
Luther Strange
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CERTIFICATE OF SERVICE
I certify that on October 17, 2014, I electronically filed the foregoing document using the
Courts CM/ECF system which will send notification of such filing to the following persons:
Christine C. Hernandez
P. O. Box 66174
Mobile, AL 36660
Telephone: (251) 479-1477
christine@hernandezlaw.comcastbiz.net
David G. Kennedy
P. O. Box 556
Mobile, AL 36601
Telephone (251) 338-9805
david@kennedylawyers.com
s/James W. Davis
Counsel for the Defendant
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SOUTHERN DIVISION
Plaintiffs,
v.
Defendant.
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Civil Action No.
1:14-cv-208-CG-N
DEFENDANTS PROPOSED FINDINGS OF FACTS
AND CONCLUSIONS OF LAW
Findings of Fact
The material facts are not disputed. The Court makes the following findings of fact:
1. Plaintiffs, a same-sex couple, bring this action against Alabama Attorney General
Luther Strange to challenge the marriage laws of Alabama, and seek a judgment requiring
Alabama to recognize the marriage license Plaintiffs received from the State of California. (Doc.
1).
2. Alabama did not invent marriage. Marriage has an ancient origin and has been
observed in virtually all cultures, at all times, throughout the world, in various cultures that span
the spectrum in terms of their attitude toward gays, lesbians, and homosexual acts. (Ex. A. to
Def. Mot.).
3. In Alabama, of all human relationships that exist (business partnerships, siblings,
same-sex friendships, opposite-sex friendships, various forms of companionship), only one such
relationship is deemed a marriage and privileged accordingly: A relationship between one man
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and one woman, of a legal age (see Ala. Code 30-1-3), who are not closely biologically related
(see Ala. Code 13A-13-3), who jointly desire a relationship the bonds of which are not easily
broken (see Ala. Code 30-2-1, requiring judicial action for a divorce), with expectations of
sexual exclusivity (see Ala. Code 30-2-1(a)(2), providing that adultery is a ground for divorce)
and mutual support (see Ala. Code 30-2-1(a)(3), (12), providing for abandonment as a ground
for divorce), and a commitment to care for any children who are born of their union (see Ala.
Code 13A-13-5, criminalizing abandonment; see also, e.g. Ex parte E.R.G., 73 So. 3d 634,
642-44 (2011) (recognizing a common-law fundament right of parents to direct the upbringing of
their children)).
4. Before 1998, Alabama statutes did not expressly provide a sex-specific definition
of marriage, but not because same-sex unions were previously eligible for recognition. In 1983,
then-Attorney General Charles Graddick issued an opinion providing that it was not possible for
two persons of the same sex to form a civil marriage in Alabama, even though the positive law as
written did not expressly forbid it. (Attorney General Opinion No. 83-206).
5. In 1998, the Alabama Legislature enacted Ala. Code 30-1-19 and codified what
the law already assumed, that marriage by definition and by its nature involves two people of the
opposite sex.
6. In 2006, the people of Alabama, by an 82% majority, adopted an amendment to
the Alabama Constitution and enshrined Alabamas understanding of marriage into its charter as
Ala. Const. (1901) Art. I, 36.03. (Ex. C to Def. Mot.).
7. Plaintiffs Kimberly McKeand and Cari D. Searcy, are adult Alabama citizens.
(Doc. 1 4-5).
8. McKeand and Searcy are both female. (Doc. 1 12).
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9. McKeand and Searcy were issued a marriage license by the State of California in
2008. (Doc. 1 13).
10. Under Alabama law, McKeand and Searcy are not legally married. Ala. Code
30-1-19; Ala. Const. (1901) Art. I, 36.03; 28 U.S.C. 1738C.
11. McKeand is the biological mother of Plaintiff K.S., a child. (Doc. 1 16).
12. The biological father of K.S. is Michael James Waldron. (Doc. 1 18; Doc. 22 at
7).
13. The sperm donor, Waldron, has never been present in the minor childs life and
has no legal parental rights, and executed a waiver and consent to adopt on February 6, 2006.
(Doc. 22 at 7).
14. Searcy filed a petition with the Probate Court of Mobile County seeking to adopt
K.S. pursuant to Ala. Code 26-10A-27, which permits one spouse to adopt the child of the
other spouse under certain conditions. (Doc. 1 21).
15. The Probate Court of Mobile County denied Searcys petition because, under
Alabama law, Searcy and McKeand are not legally spouses. (Doc. 1 at 22).
Conclusions of Law
1. Plaintiffs bring claims against Alabamas marriage laws based upon the Equal
Protection Clause, the Due Process Clause, and the Full Faith and Credit Clause. The parties
have filed cross-motions for summary judgment. On consideration of the facts, arguments, and
applicable law, the Court finds as follows:
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Standard of Review
2. Summary judgment is appropriate if the evidence establishes no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law.
McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003). The movant must
show that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The party moving for summary judgment
always bears the initial responsibility of informing the district court of the basis for its motion,
and identifying those portions of [the evidence] which it believes demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant
can meet this burden by presenting evidence showing that there is no genuine dispute of material
fact, or by showing that the nonmoving party has failed to present evidence in support of some
element of its case on which it bears the ultimate burden of proof. Id. at 32223. In evaluating
the arguments of the movant, the court must view the evidence in the light most favorable to the
nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996).
Baker v. Nelson
3. Before the Court addresses the specific claims raised by the Plaintiffs, the Court
must first address Supreme Court precedent that governs this case. In Baker v. Nelson, 409 U.S.
810 (1972), a same-sex couple argued that [t]he right to marry is itself a fundamental interest,
fully protected by . . . the Fourteenth Amendment. See Baker v. Nelson, Jurisdictional
Statement, No. 71-1027 p. 11 (Oct. Term 1972) (Ex. A to Def. Mem. of Law).They also argued
that there are significant property interests [that] flow from the legally ratified marital
relationship, and that those property interests are protected by the due process clause. Id. The
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Baker Plaintiffs therefore asked the Supreme Court to recognize a right to same-sex marriage on
virtually the same grounds asserted in this case.
4. The U.S. Supreme Court unanimously rejected these arguments and ordered that
the appeal [be] dismissed for want of a substantial federal question. Baker, 409 U.S. at 810.
Such summary dismissals for want of a substantial federal question are rulings on the merits,
and lower courts are not free to disregard th[ese] pronouncement[s]. Hicks v. Miranda, 422
U.S. 332, 343-45 (1975). [T]he lower courts are bound by summary decisions by [the Supreme]
Court until such time as the Court informs them that they are not. Id. at 344-45 (internal
quotation marks and alterations omitted).
5. The Supreme Court has not overruled Baker v. Nelson, nor has it informed lower
courts that they are free to ignore that precedent. While some have argued that the Supreme
Courts decision in United States v. Windsor, ___ U.S. ___, 133 S.Ct. 2675 (2013), is
inconsistent with Baker, Windsor expressly leaves open the question of whether States remain
free to regulate marriage by limiting marriage to opposite-sex couples.
6. In Windsor, the Court ruled that 3 of the Defense of Marriage Act (DOMA)
was unconstitutional. ___ U.S. ___, 133 S.Ct. 2675 (2013). DOMA provided that if a State
defines marriage to include same-sex couples, federal law would not recognize that marriage,
even though our federal structure leaves regulation of marriage to the states. Congresss act was
an intervention into an area that has long been regarded as a virtually exclusive province of
the States. 133 S.Ct. at 2691. DOMA reject[ed] the long-established precept that the incidents,
benefits, and obligations of marriage are uniform for all married couples within each State,
though they may vary, subject to constitutional guarantees, from one State to the next. Id. at
2692.
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7. Windsor does not require states to redefine marriage. The majority noted that its
opinion is confined to those lawful marriages at issue in states that have chosen to recognize
same-sex unions. As the Chief Justice wrote, [t]he Court does not have before it, and the logic
of its opinion does not decide, the distinct question whether the States, in the exercise of their
historic and essential authority to define the marital relation, [133 S.Ct.] at 2692, may continue
to utilize the traditional definition of marriage. Id. at ___, 133 S.Ct. at 2696 (Roberts, C.J.,
dissenting) (quoting majority opinion).
8. Baker is therefore binding on this Court, and it provides that Plaintiffs claims are
due to be dismissed. That is sufficient reason to deny Plaintiffs motion and to grant Defendants
motion.
Plaintiffs Due Process Claim
9. Under the Due Process clause, a law may be subject to heightened scrutiny if it
impairs a fundamental right. E.g., Shapiro v. Thompson, 394 U.S. 618, 634 (1969). Laws
impairing rights that are not fundamental are subject to rational basis review. The right Plaintiff
seeks, when carefully described, is not fundamental, and rational basis therefore applies.
10. A right is fundamental if it is objectively, deeply rooted in this Nations history
and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice
would exist if they were sacrificed. Washington v. Glucksberg, 521 U.S. 702, 721 (1997)
(internal citations and quotation marks omitted). The Supreme Court has always been reluctant
to expand the concept of substantive due process because guideposts for responsible decision-
making in this unchartered area are scarce and open-ended. Id. (internal quotation marks and
citation omitted). Importantly, the plaintiff in a Due Process case must provide a "careful
description" of the asserted right. Id. at 721.
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11. Plaintiffs argue that they seek the right to marry, and that the right to marry is
fundamental. Defendant contends that Plaintiffs really seek a new right the right to marry a
person of the same sex and that such new right is not deeply rooted in this Nations history and
tradition. Therefore, Defendant argues, Plaintiffs Due Process claim must be adjudged under the
rational basis test.
12. The Court agrees with Defendant that when the right Plaintiffs seek is carefully
described, it is a new right. To require Alabama to recognize same-sex marriage would be to
redefine what marriage is.
13. Alabama holds to the conjugal view of marriage, which Defendant describes as
a stable male-female sexual bond oriented to family life, with corresponding duties on the
mother and fathers part to each other and any children they might have. This concept of
marriage, which has been shared by virtually every culture in the world up until the 21
st
Century,
is by its terms an opposite-sex union, regulated by government with a view toward childrens
needs.
14. A competing view of marriage, which can be called revisionist or consent-
based, has arisen which focuses on a couples emotional bonds. This view is described in a
District Court decision from California, which required that State to recognize same-sex
marriage, as follows: Marriage is the state recognition and approval of a couples choice to live
with each other, to remain committed to one another and to form a household based on their own
feelings about one another and to join an economic partnership and support one another and any
dependents. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 961 (N.D. Cal. 2010). The
revisionist view of marriage, as expressed in Perry and other recent cases, is not dependent on
gender and not oriented toward the connection between children and their biological parents.
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15. Plaintiffs ask this Court to require Alabama to adopt the revisionist view of
marriage, to redefine marriage in this State so that Plaintiffs California marriage is recognized.
The Court will not do so (for reasons discussed further below), but not because the Court is
passing judgment on either view of marriage. The Court need not (and does not) decide that one
view of marriage is right and one is wrong; the point, for purposes of the Due Process claim, is
that these views are different. The fact that Plaintiffs seek to have one conceptualization of
marriage replaced by another is evidence that the right they seek is a new right.
16. The right to marry a person of the same gender does not have a deep tradition in
this country or any other. As the Supreme Court acknowledged, [i]t seems fair to conclude that,
until recent years, many citizens had not even considered the possibility that two persons of the
same sex might aspire to occupy the same status and dignity as that of a man and woman in
lawful marriage. For marriage between a man and a woman no doubt had been thought of by
most people as essential to the very definition of that term and to its role and function throughout
the history of civilization. Windsor, 133 S.Ct. at 2689.
17. Not until the 21
st
Century were same-sex relationships anywhere publicly
recognized as marriages. See Windsor, 133 S.Ct. at 2715 (Alito, J., dissenting) (It is beyond
dispute that the right to same-sex marriage is not deeply rooted in this Nations history and
tradition. In this country, no State permitted same-sex marriage until the Massachusetts Supreme
Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State
Constitution. Nor is the right to same-sex marriage deeply rooted in the traditions of other
nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.).
18. Nor is there a longstanding tradition that a person has the right to marry the
person of ones choice without limitations in law. There have always been limits on whom a
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person may marry. For example, there are restrictions in Alabama against marrying a minor, Ala.
Code 30-1-4, or close kin, Ala. Code 13A-13-3. The law does not permit a person to marry
more than one spouse no matter how critical he may feel that it is to his personal identity,
priorities, or moral or religious commitments. Ala. Code 13A-13-1.
19. Supreme Court cases recognizing a right to marry have been based on the
conjugal view of marriage. For instance, in Loving v. Virginia, 388 U.S. 1 (1967), where the
Supreme Court struck down laws that prohibited bi-racial marriages involving a white party, it
was a man and a woman, opposite-sex adults, who desired to marry. Not even in dicta did the
Loving court suggest that the right it considered applied outside the context of opposite-sex
couples. In fact, the court affirmed the gendered nature and procreative biological reality of
marriage by describing marriage as fundamental to our very existence and survival. Id. at 12.
20. While some District Courts recently have found that same-sex couples seek only
the traditional right to marry, the Court agrees with Judge Niemeyer that this view cannot be
reconciled with history or precedent:
This analysis [that same-sex marriage proponents seek only the traditional right to
marriage] 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." Moreover, the majority fails to explain how this new notion
became incorporated into the traditional definition of marriage except by
linguistic manipulation.
Bostic v. Schaefer, 760 F.3d 352, 386 (4th Cir. 2014) (Niemeyer, J., dissenting).
21. Because the right Plaintiffs seek is not a fundamental one, Alabamas laws need
only survive the rational basis test. As discussed below, in the context of Plaintiffs Equal
Protection claims, Alabamas laws pass that test.
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Plaintiffs Equal Protection Claim
22. The Equal Protection Clause of the Fourteenth Amendment proclaims that [n]o
State shall ... deny to any person within its jurisdiction the equal protection of laws. U.S. Const.
amend. XIV, 1.
23. The Eleventh Circuit summarized Equal Protection jurisprudence in Lofton v.
Secretary of the Dept of Children and Family Serv.:
The central mandate of the equal protection guarantee is that [t]he sovereign may
not draw distinctions between individuals based solely on differences that are
irrelevant to a legitimate governmental objective. Lehr v. Robertson, 463 U.S.
248, 265, 103 S.Ct. 2985, 2995, 77 L.Ed.2d 614 (1983). Equal protection,
however, does not forbid legislative classifications. Nordlinger v. Hahn, 505 U.S.
1, 10, 112 S.Ct. 2326, 2331, 120 L.Ed.2d 1 (1992). It simply keeps governmental
decisionmakers from treating differently persons who are in all relevant respects
alike. Id.
358 F.3d 804, 817-818 (11th Cir. 2004).
24. Plaintiffs contend that Alabamas marriage laws, by limiting marriage to
opposite-sex couples, discriminate on the basis of sexual orientation. However, Alabama laws do
not exclude only intimate same-sex couples from marital recognition. A host of other
relationships are excluded as well, including many that involve deep emotional bonds.
Nonetheless, even if Alabamas laws did discriminate on the basis of sexual orientation, those
laws would survive an equal protection challenge because they are rationally related to legitimate
government interests.
25. It is settled law in this Circuit that a law that discriminates on the basis of sexual
orientation is scrutinized under the rational basis test. Lofton, 358 F.3d at 818.
26. Rational-basis review, a paradigm of judicial restraint, does not provide a license
for courts to judge the wisdom, fairness, or logic of legislative choices. The question is simply
whether the challenged legislation is rationally related to a legitimate state interest. Under this
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deferential standard, a legislative classification is accorded a strong presumption of validity and
must be upheld against equal protection challenge if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification. This holds true even if the law
seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems
tenuous. Lofton, 358 F.3d at 818 (citations and internal quotation marks omitted).
27. Moreover, a state has no obligation to produce evidence to sustain the rationality
of a statutory classification. Rather, the burden is on the one attacking the legislative
arrangement to negative every conceivable basis which might support it, whether or not the basis
has a foundation in the record. Id. (citations and internal quotation marks omitted).
28. The question is not whether excluding same-sex relationships from marriage itself
advances the states interests, but whether recognizing opposite-sex couples relationships does.
See Johnson v. Robison, 415 U.S. 361, 383 (1974) (When, as in this case, the inclusion of one
group promotes a legitimate governmental purpose, and the addition of other groups would not,
we cannot say that the statute's classification of beneficiaries and non-beneficiaries is invidiously
discriminatory.)
29. Defendant asserts two government interests that he contends to be supported by
the challenged laws: (1) Linking children to their biological parents, the persons usually in the
best circumstance to rear those children, and (2) linking children to extended family.
30. The Court finds that the interests asserted by Defendant are legitimate
government interests, and that those interests are rationally related to Alabamas choice to define
marriage as an opposite-sex union.
31. There can be no serious doubt that a government interest in promoting the welfare
of children is a legitimate government interest. See, e.g., Palmore v. Sidoti, 466 U.S. 429, 433
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(1984) (The State, of course, has a duty of the highest order to protect the interests of minor
children, particularly those of tender years.); Stanley v. Illinois, 405 U.S. 645, 652 (1972)
(noting that protect [ing] the moral, emotional, mental, and physical welfare of the minor is a
legitimate interest[], well within the power of the State to implement) (internal quotation
marks omitted).
32. Defendant contends that the law should support kin altruism, the care that
natural parents are inclined to give to their children because they have labored to give them birth
and have come to recognize them as a part of themselves that should be preserved and extended.
It is rational for Alabama to believe that in most cases, the best situation for children is to be
connected to their biological parents.
33. Alabama recognizes that [t]he right to parent ones child is a fundamental right.
Ex parte J.E., 1 So. 3d 1002, 1006 (Ala. 2008). This right is not premised on the rights of adults,
but upon what is in the best interest of children: Alabama law presumes that custody of children
belongs to biological parents
not so much upon the ground of natural right in the latter, as because the interests
of the children, and the good of the public, will, as a general rule, be thereby
promoted. It is a fair presumption, that so long as children are under the control of
their parents, they will be treated with affections and their education and morals
will be duly cared for.
Striplin v. Ware, 36 Ala. 87, 89 (1860), quoted with approval in Ex parte Sullivan, 407 So. 2d
559, 563 (Ala. 1981). And [b]ecause parents are presumed to act in the best interests of their
children, the law also presumes parental care, custody, and control to be superior to that of
third persons under ordinary circumstances. Ex parte E.R.G., 73 So. 3d at 644. See also Troxel
v. Granville, 530 U.S. 57, 68 (2000) (there is a presumption that fit parents act in the best
interests of their children.); Parham v. J.R., 442 U.S. 584, 602 (1979) (noting that the law has
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recognized that natural bonds of affection lead parents to act in the best interests of their
children.).
34. Moreover, it is reasonable for Alabama to believe that preserving the ties between
children and their biological parents will tend to promote the benefits of sexual complementarity
in parenting: that when possible, it is good for children to have both a mother and a father. In
Lofton, the Eleventh Circuit credited Floridas argument that
children benefit from the presence of both a father and mother in the home. Given
that appellants have offered no competent evidence to the contrary, we find this
premise to be one of those unprovable assumptions that nevertheless can
provide a legitimate basis for legislative action. Paris Adult Theatre I v. Slaton,
413 U.S. 49, 62-63, 93 S.Ct. 2628, 2638, 37 L.Ed.2d 446 (1973). Although social
theorists from Plato to Simone de Beauvoir have proposed alternative child-
rearing arrangements, none has proven as enduring as the marital family structure,
nor has the accumulated wisdom of several millennia of human experience
discovered a superior model. See, e.g., Plato, The Republic, Bk. V, 459d-461e;
Simone de Beauvoir, The Second Sex (H.M. Parshley trans., Vintage Books
1989) (1949). Against this sum of experience, it is rational for Florida to
conclude that it is in the best interests of adoptive children, many of whom come
from troubled and unstable backgrounds, to be placed in a home anchored by both
a father and a mother.
Lofton, 358 F.3d at 819-820. Lofton thus holds that is reasonable to believe that a child will do
better, all else being equal, with both a mother and a father; encouraging marriage and preserving
the links between both biological children and parents helps to ensure a childs connections with
both a mother and a father.
35. With connections to both a mother and father in the home, a child of either gender
has a parent of the same gender offering daily care and guidance. It is rational for Alabama to
assume that this will be an advantage to a childs development, and that laws which encourage
mothers and fathers to marry will increase the likelihood that a child will know both his mother
and father.
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36. The Court does not, by making these findings, disparage adoptive parents or
single parents; nor does it contend that all biological parents are model care-givers. Nonetheless,
it remains reasonable for Alabama to believe that when a biological parent is willing and able, he
or she, because of natural biological ties, is usually in the best position to shepherd a child to
adulthood.
37. It is also rational for Alabama to believe that it will benefit children to maintain a
connection with extended biological family. Kinship altruism the natural proclivity toward
helping persons with whom one is related extends to grandparents, aunts, uncles, siblings, etc.
These family members may provide a supportive network for a child, and in some cases become
the primary caregiver when a biological parent is unfit or unavailable.
38. Alabamas marriage laws are rationally related to these government interests. By
providing benefits to marriage, such as tax benefits, and disincentives to misbehavior in
marriage, such as consequences for infidelity (when dividing assets after divorce, for example),
Alabama law encourages couples to get married and stay married. The law encourages a man
who fathers a child to marry the childs mother, stay married to her, and contribute to the
upbringing of the child. These benefits and disincentives thus help protect the natural right of a
child to know, and to be raised by, his or her biological parents. This in turn is, all else being
equal, in the best interest of children. It further preserves connections between children and
extended family members who may contribute to the childs upbringing.
39. The rational relationship between Alabamas marriage laws and the interest of
connecting children to a biological family is not broken by the fact that some opposite-sex
couples who marry are childless or infertile. Even if the classification involved here is to some
extent both underinclusive and overinclusive, and hence the line drawn by Congress imperfect, it
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is nevertheless the rule that in a case like this perfection is by no means required. The provision
does not offend the Constitutionality simply because the classification is not made with
mathematical nicety. Vance v. Bradley, 440 U.S. 93, 109 (1979) (citations and quotation marks
omitted).
40. Nor is it relevant that same-sex intimate relationships have some things in
common such as emotional and physical intimacy with conjugal marriages. A common
characteristic shared by beneficiaries and non-beneficiaries alike, is not sufficient to invalidate a
statute when other characteristics peculiar to only one group rationally explain the statute's
different treatment of the two groups. Id. at 78.
41. It is not necessary, in order to find for the Defendant, for the Court to find that
calling a same-sex relationship a marriage would harm the asserted government interests.
Nonetheless, it is reasonable for Alabama to believe that redefining marriage, so that it is seen as
a genderless union, may affect the links between children and their biological parents; that it may
send a message that men and women are fungible in parenting and that biological mothers and
fathers could be replaced (with no impact on children) with any other adult of any gender. It is
reasonable for Alabama to be concerned that as parents absorb this message of the law, they
(fathers particularly) may be less likely to contribute to the upbringing of children.
42. It is also reasonable for Alabama to believe that a re-defined institution may
change the way people think about marriage, and that if the law declares that the purpose of
marriage is merely to provide emotional satisfaction to adults, there may be even less adherence
to permanency in marriage than is found today.
43. Plaintiffs imply that Alabamas laws fail the rational basis test because its laws
are based solely on animus toward gays and lesbians. However, as shown above, there are other
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rational reasons for a State to retain the conjugal view of marriage and to hold to a definition that
requires sexual complementarity. Moreover, the conjugal view, which did not arise in Alabama,
has ancient origins from a variety of cultures which span the spectrum in terms of their attitudes
toward sexual orientation. The Court finds that Alabamas marriage laws are not based solely on
animus.
44. By recognizing and regulating conjugal marriage, Alabama makes it more likely
that children will be raised by the people most likely to love them and care for them: their
biological parents. Changing marriages definition so that it is an institution to meet the
emotional needs of adults may, it is reasonable to believe, risk further undermining stabilizing
marital norms that serve society. Alabamas marriage laws are therefore rationally related to the
legitimate government interests of connecting children to their biological parents and other kin.
45. Alabama thus has a legitimate interest whether obsolete in the opinion of
some, or not, in the opinion of others in linking children to an intact family formed by their
two biological parents, as specifically underscored by Justice Kennedy in Windsor. Robicheaux
v. Caldwell, ___ F. Supp. 2d at ___, 2014 WL 4347099 at *8 (E.D. La. Sept. 3, 2014). Further,
its laws and Constitution are directly related to achieving marriages historically preeminent
purpose of linking children to their biological parents. Id. at *6.
Plaintiffs Full Faith and Credit Clause Claim
46. The Full Faith and Credit clause does not require Alabama to recognize Plaintiffs
out-of-state marriage license. Article 4, 1 of the United States Constitution provides that Full
faith and credit shall be given in each state in the public acts, records, and judicial proceeding of
every other state. However, it also provides, And the Congress may by general laws prescribe
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the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
Id.
47. In DOMA, in a section not addressed in Windsor, Congress prescribed as
follows: No State shall be required to give effect to any public act, record, or judicial
proceeding of any other State respecting a relationship between persons of the same sex that
is treated as a marriage under the laws of such other State , or a right or claim arising from
such relationship. 28 U.S.C. 1738C. Alabama therefore has express statutory and
Constitutional authority to decline to give effect to an out-of-state marriage license issued to
persons of the same gender.
48. Even without that statutory provision, it has long been recognized that the Full
Faith and Credit Clause does not require a State to apply another States law in violation of its
own legitimate public policy. Nevada v. Hall, 440 U.S. 410, 422 (1979). For example, Alabama
does not recognize certain marriages that are legal in Georgia because under Alabama law, such
marriages are incestuous. See Osoinach v. Watkins, 180 So. 577, 581 (1938). Same-sex
marriage is against Alabamas public policy, as demonstrated by the challenged statute and
Constitutional Amendment, and thus the Full Faith and Credit Clause does not require Alabama
to recognize Plaintiffs marriage license.
Conclusion
49. In the end, the Constitution does not require Alabama to adopt the revisionist
view of marriage; nor does it require Alabama to retain the conjugal view. Neither conception of
marriage is addressed in the Constitution.
50. The Court notes that Defendant has not argued that a State lacks the right to
democratically choose to recognize same-sex marriage. Our federal system permits States to
18
make that choice, and it recognizes that States may make different and even inconsistent choices.
As the Supreme Court recently noted, the people have a fundamental right that is held in
common, the right to speak and debate and learn and then, as a matter of political will, to act
through a lawful electoral process. Schuette v. Coal. to Defend Affirmative Action, 134 S.Ct.
1623, 1637 (U.S. April 22, 2014). And [t]hat process is impeded, not advanced, by court
decrees based on the proposition that the public cannot have the requisite repose to discuss
certain issues. It is demeaning to the democratic process to presume that the voters are not
capable of deciding an issue of this sensitivity on decent and rational grounds. Id.
51. The role of the Court is not to make policy choices for society. People on both
sides of the issue have asserted passionate, powerful arguments for why their view of marriage is
correct. Court are ill-equipped to determine if one side has a morally superior argument. Courts
decide legal issues, and here the law is clear. While there may be rational reasons that a State
might choose a different view of marriage, Alabama has asserted legitimate government interests
that are rationally related to its marriage laws. Therefore, the law does not require Alabama to
recognize same-sex marriages.
For these reasons, the Court finds that there is no genuine dispute of material fact, and
that Defendant is entitled to a judgment as a matter of law. The Court therefore will, by separate
order, grant Defendants motion, deny Plaintiffs motion, and enter judgment in favor of the
Defendant and against the Plaintiffs.
Done this ____ day of _________,
__________________________
District Court Judge
SOUTHERN DIVISION
Plaintiffs,
v.
Defendant.
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)
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Civil Action No.
1:14-cv-208-CG-N
DEFENDANTS PROPOSED ORDER
This matter is before the Court on the parties cross-motions for summary judgment. On
consideration of the parties submissions and authorities cited, and as set out in the Courts
findings of fact and conclusions of law, the Court finds that there is no genuine dispute of
material fact and that the Defendant is entitled to a judgment as a matter of law. The Motion for
Summary Judgment filed by the Plaintiffs is therefore hereby DENIED, and the Motion for
Summary Judgment filed by the Defendant is hereby GRANTED. Judgment is entered in favor
of the Defendant and against the Plaintiffs.
Done this ____ day of _________,
__________________________
District Court Judge

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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

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