Katherine Bradacs and Tracie Goodwin, ) Civil Action No. 3:13-cv-02351-J MC ) Plaintiffs, ) ) v. ) ) DEFENDANTS MOTION FOR Nimrata (Nikki) Randhawa Haley, in her ) J UDGMENT ON THE PLEADINGS official capacity as Governor of South ) Carolina; Alan M. Wilson, in his official ) Capacity as Attorney General, ) ) Defendants. ) _______________________________ )
The Defendants move for judgment on the pleadings herein pursuant to Rule 12(c), FRCP, for the reasons set forth in the attached Memorandum in Support of Motion for J udgment on the Pleadings which is incorporated by reference. Those grounds include, but are not limited to, federalism, Eleventh Immunity, lack of standing to sue the named Defendants, the rational bases for the challenged provisions and the inapplicability of the Full Faith and Credit Clause.
ALAN WILSON Attorney General Federal ID No.10457
ROBERT D. COOK Solicitor General Federal ID No. 285 Email: BCOOK@SCAG.GOV
[Signature block continues next page]
1 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78 Page 1 of 2 /s/ J . Emory Smith, J r. J . EMORY SMITH, J R. Deputy Solicitor General Federal ID No. 3908 Email: ESMITH@SCAG.GOV
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 Defendants October 23, 2014 Governor and Attorney General 2 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78 Page 2 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION
Katherine Bradacs and Tracie Goodwin, ) Civil Action No. 3:13-cv-02351-J MC ) Plaintiffs, ) ) v. ) MEMORANDUM IN SUPPORT OF ) DEFENDANTS MOTION FOR Nimrata (Nikki) Randhawa Haley, in her ) J UDGMENT ON THE PLEADINGS official capacity as Governor of South ) Carolina; Alan M. Wilson, in his official ) Capacity as Attorney General, ) ) Defendants. ) _____________________________ ______ )
This suit has been brought in the wrong Court against the wrong parties. These grounds were not considered in the Fourth Circuit Court of Appeals same-sex marriage decision, and they are dispositive of this case. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014). Plaintiffs, who are both female, allege that they were married in the District of Columbia in 2012, that their marriage is recognized under DC law and that they have two children. Plaintiffs seek recognition of that marriage by the State of South Carolina and possibly argue that they are entitled to marry in this State. State law does not allow or recognize same-sex marriages, and Plaintiffs challenge two of those provisions. S.C. Code Ann 20-1-15; S.C. Const art. XVII, 15 1 Therefore, this case presents the question of whether those laws are valid, 1 Section 20-1-15 provides that [a] marriage between persons of the same sex is void ab initio and against the public policy of this State. See also, 20-1-10 (persons who may marry same sex couples excluded) not challenged in this action.
In March, 2007, S.C. Const art. XVII, 15 became effective and provided as follows:
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 1 of 45 but also whether this suit should be dismissed due to federalism, Eleventh Amendment Immunity and lack of standing to sue the named defendants. These laws are valid, and this challenge to them is not properly before this Court. 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 has overturned Virginias same-sex marriage ban, that case did not consider issues that are dispositive of the instant case. Bostic. The defenses named above and discussed, infra, take this case outside of the Bostic precedent and warrant judgment for the Defendants. I
PRINCIPLES OF FEDERALISM DICTATE THAT THIS ACTION IS IMPROPERLY BROUGHT IN FEDERAL COURT
The Court should dismiss this action, based upon overriding principles of federalism. Because this case seeks to decide the core question of two peoples marital status, it belongs in 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. 2
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 2 of 45 state court, rather than in federal court. As only recently stated in United States v. Windsor, 133 S.Ct. 2675, 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 Constitutions 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 federalism, this case should be dismissed as improperly brought here, rather than in the courts of South Carolina. As J udge Posner recognized in Jones v. Brennan, 465 F.3d 304 (7 th 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 law or equity dispositions. J udge Posner points out that the statute relating to federal questions uses the same common law or inequity 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 J udge Posner relied upon a jurisdictional analysis, other courts have looked to the foundations of federalismparticularly justiciability and abstentionin concluding that domestic relations issues are more properly a matter for state courts to decide, even where federal questions are involved. Harbach, Is the Family a Federal Question, 66 Washington and Lee L. Rev., 131, 165-175 (2009). 3 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 3 of 45 Indeed, Elk Grove United School Dist. v. Newdow, 542 U.S. 1, 17 (2004) 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 Petitioners daughter, by using the phrase under God. The Supreme Court noted that Newdows parental status was defined by California domestic relations law. 542 U.S. at 16. (emphasis added). 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.]. J ustice Stevens, writing for the Court in Newdow, recognized there are certain occasions when a federal court absolutely must intercedewith respect to domestic relations issues, such as those involving racial classifications. However, Newdow noted that such circumstances are indeed extraordinary and rare. According to J ustice 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 ones sexual orientation, must bear a rational relationship to a legitimate government purpose. Romer v. 4 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 4 of 45 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 ones sexual orientation. See also Thomasson v. Perry, 80 F.3d 915 (4 th Cir. 1996) [federal policy of Dont Ask, Dont 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 (8 th Cir. 2005), the Court dismissed a 1983 suit, citing Newdow. In A.N. and D.N. v. Williams, 2005 WL 3003730 (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 Newdows 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, 5 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 5 of 45 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 federalism concerns, 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 States 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 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 Nations 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 Yorks 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 DOMAs enactment in 1996, the federal government had by history, and tradition relied on the states determinations of what constituted marriage. 6 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 6 of 45 Mir, Windsor and the Discontents . . .,, 64 Duke Law J ournal, 53, 58 (2014). According to J ustice Kennedy, [t]he responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the States classifications have in the daily lives and customs of its people. DOMAs 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 (10 th Cir. 2014). As Chief J ustice Roberts observed in his Windsor dissent, [t]he dominant theme of the majority opinion is that the Federal Governments 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 J ustice concluded that the Courts 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 J ustice Roberts reading that Windsor is based primarily upon federalism. As has been stated, . . . J ustice Anthony Kennedys 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 7 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 7 of 45 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, Reflections on Equality in Family Law, 1385 Mich. St. L. Rev. 1422 (2013). 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 States 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 8 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 8 of 45 protection clause of the United States Constitution.]. Thus, 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. Windsors reliance upon federalism principles is incorrectly distinguished by the Fourth circuit in Bostic v. Schaefer, 760 F.3d 352, 378 (4 th Cir. 2014). 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, 388 U.S. 1 (1967)). Loving, however, involved a criminalization of Virginias 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 Circuits analysis, principles of federalism could never be applied by federal courts if constitutional rights are alleged. However, the Supreme Court, through J ustice 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.
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)). 9 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 9 of 45 The Fourth Circuit has applied this domestic relations exception to a constitutional claim, based upon alleged sex discrimination. In Wilkins v. Rogers, 581 F.2d 399 (4 th Cir. 1978), the Court refrained from ruling upon the constitutionality of a state statutory scheme eliminating the wifes right to dower if the wife deserted her husband. Such statutes were attacked by invoking federal question jurisdiction, as well as diversity. However, the Fourth Circuit found that federal courts may 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 (4 th Circ. 1997). In short, this Court should stay its hand in 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 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 Courts 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 precedent, and fully buttresses the foregoing authorities applying principles of federalism by applying the domestic relations exception. 10 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 10 of 45 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.
191 N.W.2d at 187. It is important to note that the Minnesota Supreme Court specifically rejected all of Plaintiffs 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 states classification of persons authorized to marry. There is no irrational or invidious discrimination. Id. at 187. Plaintiffs then appealed the Minnesota Supreme Courts decision to the United States Supreme Court. The Plaintiffs J urisdictional Statement raised three separate questions to the 11 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 11 of 45 Supreme Court: (1) whether the States refusal to sanctify appellants 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 States refusal, pursuant to Minnesota marriage statutes, to sanctify appellants [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 States refusal to sanctify appellants [same-sex] marriage deprives appellants of their right to privacy under the Ninth and Fourteenth Amendments. Baker, J urisdictional 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 Courts summary dismissal represents a ruling on the merits and is binding upon this Court and all lower federal courts. In Hicks v. Miranda, 422 U.S. 332 (1975), 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 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 12 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 12 of 45 statute was not a substantial one. The three judge court was not free to disregard this pronouncement.
As Mr. J ustice 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 Circuits 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. 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). The Fourth Circuit has also recognized the binding effect of summary dismissals by the Supreme Court. In Hogge v. Johnson, 526 F.2d 833 (4 th Circ. 1975), 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. 13 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 13 of 45 Adm., 582 F.2d 849, 853-854 (4 th Circ. 1978) [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 v. Schaefer, 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 J ustice Ginsberg in the oral argument in Hollingsworth v. Perry, ___ U.S. ____, 133 S.Ct. 2652 (2014), a case which was resolved based not upon the 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 Courts sex discrimination cases since Baker, concluding that [i]n light of the Supreme Courts 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. 14 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 14 of 45 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 Courts 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 (8 th 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) years old, the decision addressed the same issues presented in this action, and this Court is bound to follow the Supreme Courts 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 15 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 15 of 45 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 Constitutions guarantees of equal protection and due process of law.]. Only this week, the United States Federal District Court for the District of Puerto Rico has determined that Baker is binding in this same context. In Conde-Vidal v. Garcia-Padilla, No. 3:14-cv-01253PG (Oct. 21, 2014), the Court concluded that . . . plaintiffs constitutional claim challenging the Puerto Rico Civil Codes recognition of opposite-gender marriage fail to present a substantial federal question, and this Court must dismiss them. Op. at 11(Attachment A). According to the Court: [t]he First Circuit expressly acknowledged as much two years agothat 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 (1 st 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. at 12.
Indeed, in oral argument in Hollingsworth v. Perry, supra, J ustice Scalia recognized Baker v. Nelson as a binding decision on the merits. He asked attorney Ted Olson the following: Im 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 didnt 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 J ustice Scalia). Thus, contrary to the Fourth Circuits disregard of Baker in Bostic, at least one member of the Supreme Court does not appear to believe that Baker has been 16 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 16 of 45 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. Thus, 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, and even the Fourth Circuits own cases. The issue of bans upon same-sex marriage has not yet been addressed by the Supreme Court except in Baker v. Nelsons dismissal for want of a substantial federal question. All of the issues including Plaintiffs constitutional claims here, were addressed by the Minnesota Supreme Court, were raised in the Baker J urisdictional Statement to the Supreme Court, and were thus resolved in Bakers 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 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. Regardless of Bakers 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, 17 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 17 of 45 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 Nations beginning. 133 S.Ct. at 2691. According to the Supreme Court in Windsor, [t]he definition of marriage is the foundation of the States 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 Yorks 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)). II PLAINTIFFS HAVE SUED THE WRONG PARTIES A 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 Carolinas 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 J udicial 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 15960, 28 18 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 18 of 45 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 15556 (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).
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.
19 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 19 of 45 TheEx 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 Generals general authority as the States 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 Governors authority as chief Magistrate (art. IV, 1) does not create for her a special relationship to the laws at issue and subject her to the Ex Parte Young exception. See Charleston Cnty. Sch. Dist. v. Harrell, 393 S.C. 552, 561, 713 S.E.2d 604, 609 (2011); 2 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 states 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. 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.
20
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 20 of 45 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 (J an. 13, 2014), made a similar conclusion as to the Louisiana Attorney Generals 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. 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. B Plaintiffs Lack Standing To Sue the Defendants and, Therefore, this Court Lacks Jurisdiction of this Case
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 Oklahomas 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
21 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 21 of 45 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. J an. 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 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 J udge 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]
22 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 22 of 45 Bishop II dismissed the claims against the Oklahoma Governor and Attorney General due to lack of standing. J ust 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 due to lack of subject matter jurisdiction. Bishop II. 3
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). Plaintiffs fail to meet these requirements for other couples and the children of such relationships, and they have not sought to bring a class action. III LEGAL HISTORY OF MARRIAGE LAW The above grounds are dispositive of this case. Should this Court wish to consider the other constitutional issues, the brief summary of the history of marriage law as an opposite sex institution provides a good background for considering those questions. 3 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 Carolinas Attorney General and Governor do not have such authority over our Probate J udges who issue licenses and this action should be dismissed as to them. 23
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 23 of 45 A Generally For countless centuries, marriage has required both sexesuniting a man and a woman as husband and wife to be father and mother to any children they produce. As David Hume 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). J ohn 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 J ohn 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 (1 st 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)). 24 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 24 of 45 B IN SOUTH CAROLINA The definition of marriage as an opposite sex legal relationship has been equally settled in South Carolina since Colonial times. A 1712 statute made clear that only opposite sex marriages were 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 Natures God, http://www.lonang.com/exlibris/blackstone/bla-115.htm 4 The 1871 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, 4 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). 25
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 25 of 45 651 (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. 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). Samesex marriage has been a point of public discussion for less than a generationyet plaintiffs insist that this new view of marriage is now embedded in our countrys 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. The law also specified the comity South Carolina would extend to the licensing decisions of other Stateshardly a novel concept. Like every other State, South Carolina routinely clarifies the extent to which it will recognize other States licenses, ranging from licenses to carry weapons to professional licenses for doctors, lawyers, and others. To avoid the circumvention of its licensing efforts, South Carolina has limited the recognition that would be given to certain marriages in other states. Plaintiffs cannot avoid 26 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 26 of 45 South Carolinas marriage licensing laws by means of a District of Columbia license. See, infra, Full Faith and Credit argument. IV RATIONAL BASIS REVIEW SHOULD APPLY HERE TO PLAINTIFFS DUE PROCESS AND EQUAL PROTECTION CLAIMS
If this Court dismisses this case on the above grounds, it need not reach this issue of whether rational basis review should apply. 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 J udge Niemeyer applied rational basis review. Because the Defendants believe that J udge Niemeyers opinion was the correct one, they offer his analysis to preserve this ground now and should further review be sought later. A No Fundamental Right to Same-Sex Marriage Exists Plaintiffs ask this Court to apply heightened scrutiny because it burdens the fundamental right to marry and because it discriminates based on sex and sexual orientation. Amended Complaint, 5; see also 29 and 38. Bostic applied strict scrutiny because it found marriage to be a fundamental right that encompasses same-sex marriage. J udge Niemeyer reached a different, legally correct conclusion. As J udge Niemeyer stated: 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.
27 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 27 of 45 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 rightwhether 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 72021 (citation omitted) (quoting Moore, 431 U.S. at 503 (plurality opinion); Palko, 302 U.S. at 32526,). 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. .. .
Under this formulation, because the Virginia laws at issue prohibit marriage between persons of the same sex, Va.Code Ann. 2045.2, 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 28 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 28 of 45 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 9496; or Zablocki, 434 U.S. at 38386.
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 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 29 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 29 of 45 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 same- sex 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 same- sex 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 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 states legislature 30 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 30 of 45 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 by J im Crow laws. Id. The prohibition on inter-racial marriage was plainly designed 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. J udge Niemeyer found other barriers to the Virginia plaintiffs 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 Carolinas law. B
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 Virginias laws because it found a fundamental right to same-sex marriage. J udge Niemeyer did address this issue and found no suspect class implicated in that case and that rational basis review applied. 31 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 31 of 45 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 44041, 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 rational- basis review. See id. at 63133.
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, 73132 (4th Cir.2002). . . . .The vast majority of other courts of appeals have reached the same conclusion.
Bostic, 760 F.3d at 396-97 (Niemeyer dissenting).
32 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 32 of 45 C
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 Circuits 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 womens 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) (Pregnancy Discrimination Amendment)). And immigration law may make it easier for out- of-wedlock children to claim citizenship from citizen mothers than from citizen fathers, for 33 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 33 of 45 reasons beyond gender stereotypes. Nguyen v. INS, 533 U.S. 53, 62-65 (2001). As J ustice Kennedy wrote for the Court in Nguyen: To fail to acknowledge even our most basic biological differencessuch as the fact that a mother must be present at birth but the father need not berisks 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. V
SOUTH CAROLINAS LONGSTANDING DEFINITION OF MARRIAGE SATISFIES RATIONAL BASIS REVIEW UNDER THE EQUAL PROTECTION AND DUE PROCESS CLAUSES
Under J udge Niemeyers 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 Commcns, Inc., 508 U.S. 307, 313-14 (1993). [J ]udicial intervention is generally unwarranted no matter how 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 34 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 34 of 45 couples. Heller v. Doe, 509 U.S. 312, 319 (1993) (quoting FCC v. Beach Commcns, Inc., 508 U.S. 307, 313 (1993)). B Rational Bases Exist for South Carolinas 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 OConnor 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 relationsthe asserted state interest in this caseother 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 Carolinas 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
Bostic, 760 F.3d at 378. Although rejected by the Court of Appeals under strict scrutiny, these grounds support South Carolinas 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 35 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 35 of 45 scrutiny test if applied because they are compelling state interests and are narrowly drawn. 760 F.3d at 377. J udge Niemeyer analyzed these grounds for Virginias 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 Carolinas 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 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 J udge 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 36 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 36 of 45 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.
VI
THE FULL FAITH AND CREDIT CLAUSE DOES NOT SUPPORT CAUSES OF ACTION AGAINST STATE OFFICIALS INCLUDING THE INSTANT SUIT AGAINST THE DEFENDANTS.
Plaintiffs claimsthat the Full Faith and Credit Clause of the United States Constitution mandates that states recognize same-sex marriage entered in other statesis not supported by either the history of the Clause or extant Supreme Court jurisprudence on the matter. As discussed below, a right of action cannot be maintained against the Defendants under that clause, and marriage licenses are not judgments for which recognition is compelled. Article IV, Section 1 of the United States Constitution provides that Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every 37 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 37 of 45 other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. U.S. Const. art. IV, 1. While at first glance the first sentence of the clause appears to be a substantive, self- executing command to the several states, compelling historical evidence shows that its original meaning and purpose pertained to evidentiary requirements and methods of proof alone. 5 In fact, the second sentence of the Clause was considered to be a significant addition to its pre- constitutional precursors, because that sentence actually did permit Congress to address issues of substance with respect to what effect the laws of the several states would have throughout the burgeoning Nation. 6 Congress has not required the States to recognize the marital laws of other states, and in fact, has provided to the contrary as to same-sex marriages. See, Argument, VI, infra.
5 See Ralph U. Whitten, The Original Understanding of the Full Faith and Credit Clause and the Defense of Marriage Act, 32 Creighton L. Rev. 255, 294-95 (1998) ([F]rom English law through the ratification of the Constitution, the evidence is compelling that the first sentence of the Full Faith and Credit Clause did not embody conflict of laws commands directing the states to enforce the statutes, records, and judgments of other states, but merely to admit them into evidence as full proof of their own existence and contents, with greater, nonevidentiary effect left for Congress to provide or not as it chose.); David E. Engdahl, The Classic Rule of Faith and Credit, 118 Yale L.J . 1584, 1588-89 (2009) ([T]he only provisions of federal law requiring that any of the United States give effect (as distinguished from prima iency) to sister-state Acts, Records, or judicial Proceedings are those provisions (if any) that Congress has legislatively prescribed.).
6 See Ralph U. Whitten, Full Faith and Credit for Dummies, 38 Creighton L. Rev. 465, 466-67 (2005) (The evidence . . .indicates that the significant power being granted to the national government in the clause was granted in the second sentence to Congress in the form of the power to declare the effect that state statutes, records, and judgments had to be given in other states.); Whitten, The Original Understanding, supra at 294 (The evidence from the Constitutional Convention and the ratification period indicates that the first sentence of the Full Faith and Credit Clause was thought to be unimportant . . . The significant provision of the Clause was the second sentence, which gave Congress power to declare not only the manner of roving, but also the effect of state public acts, records, and judicial proceedings.). 38
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 38 of 45 A
The Full Faith and Credit Clause Does Not Support Causes of Action Against State Officials
The Full Faith and Credit Clause only prescribes a rule by which courts, Federal and state, are to be guided when a question arises in the progress of a pending suit as to the faith and credit to be given by the court to the public acts, records, and judicial proceedings of a state other than that in which the court is sitting. State of Minn. v. N. Sec. Co., 194 U.S. 48, 72 (1904). It does not, in either its constitutional or statutory incarnations . . . give rise to an implied federal cause of action. Thompson v. Thompson, 484 U.S. 174, 182 (1988). Myriad courts have recognized and applied in practice this limitation. Therefore, any claim brought pursuant to the Full Faith and Credit Clause against state officials in their official capacities necessarily lacks any constitutional or statutory predicate and is subject to dismissal. See Adar, supra at 151-52. Accordingly, the instant claim against the Defendants should be dismissed under this Clause.
B
Current and Controlling Supreme Court Jurisprudence on the Full Faith and Credit Clause Makes Clear that the Clause does not require Application of Statutes of Other States
The Supreme Court long ago recognized and explained the necessary distinction between judgments and acts, or statutes, with respect to the application of the Full Faith and Credit Clause. Indeed, in Alaska Packers Association v. Industrial Accident Commission, 294 U.S. 532, 546 (1935), the Court recognized that there are some limitations upon the extent to which a state will be required by the full faith and credit clause to enforce even the judgment of another state, in contravention of its own statutes or policy. But with respect to statutes, the solicitude for sovereignty is even more pressing, because a rigid and literal enforcement of the full faith 39 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 39 of 45 and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own. Id. at 547. In Pacific Employers Insurance Company v. Industrial Accident Commission of State of California, 306 U.S. 493, 501 (1939), the Court reaffirmed that the full faith and credit clause is not a means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate. Thus statutes, as opposed to judgments, receive radically different treatment. Myriad cases, decided by the Court up to the present day, establish and confirm this proposition. In Allstate Insurance Company v. Hague, 449 U.S. 302 (1981), the Court held that the Full Faith and Credit Clause was not violated by the application of Minnesota law to permit stacking in an insurance action brought pursuant to a motorcycle accident culminating in a fatality, even though the insurance policy in question was issued in Wisconsin, the accident in question occurred in Wisconsin, and all parties were Wisconsin residents at the time of the accident. In Sun Oil Co. v. Wortman, 486 U.S. 717 (1988) the Court affirmed that the application by a Kansas court of its own statute of limitations, to claims arising under the substantive law of other jurisdictions, did not violate the Full Faith and Credit Clause. In so doing it reaffirmed the principle that a state cannot be compelled by the Clause to substitute the statute of another state when dealing with a subject matter concerning which it is competent to legislate. Sun Oil, 486 U.S. at 722 (quoting Pacific Employers Ins. Co. v. Industrial Accident Commn, 306 U.S. at 501). Moreover, Sun Oil, in concert with Allstate, essentially stands for the proposition that 40 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 40 of 45 there exists very little restriction on the power of states to apply their laws. Whitten, Original Understanding, supra at 257, n.14. 7
Baker by Thomas v. General Motors Corp., 522 U.S. 222 (1998) explicitly distinguished between the credit owed to laws (legislative measures and common law) and to judgments. Id. at 232. The Court once again noted that states cannot be compelled to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate. Id. (quoting Pacific Employers Ins. Co., 306 U.S. at 501); see also, Franchise Tax Board of California v. Hyatt, 538 U.S. 488, 494 (2003) (application of Nevada law to a tort action brought in Nevada by a Nevada resident, against a California tax collection agency, did not violate the Full Faith and Credit Clause). The Full Faith and Credit Clause does not compel states to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate. Id. at 495-496 (quoting Pacific Employers Ins. Co. 306 U.S. at 501). The 1948 implementing statute expressly includes Acts. 28 U.S.C.A. 1738. It provides: The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto. The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or 7 See also Patrick J . Borchers, Baker v. General Motors: Implications for Interjurisdictional Recognition of Non-Traditional Marriages, 32 Creighton L. Rev. 147, 164 (1998) (As things stand now, therefore, there is a wide divergence in the way in which the Court applies the Full Faith and Credit Clause to judgments and to laws. J udgmentsassuming that they meet the Courts exacting definitionare essentially unassailable if presented to another court, unless entered without personal or subject matter jurisdiction. Sister state laws, however, are by no means entitled to automatic application. Rather, courts are permitted to apply their own law and refuse the application of a sister states law in almost all cases. Under the Hague-Wortman line of cases, a state court is prohibited from applying its own law only if that state has no significant contacts with the parties or the transaction and the application of forum law cannot be justified under traditional choice of-law principles.). 41
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 41 of 45 admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.
Fortunately, the Supreme Court has, sensibly, ignored the implementing statute in public acts cases, with the consequence, as stated by Professor Currie, that power of Congress to prescribe the effect of public acts remains, for all practical purposes, unexercised. Whitten, Dummies, supra at 472 quoting Brainerd Currie, The Constitution and the Choice of Law: Governmental Interests and the Judicial Function, in Selected Essays on the Conflict of Laws 188, 200-01 (1963). No Supreme Court case appears to have applied 1738 in a way that would mandate that a state substitute another states laws for its own statutes. See, infra, Argument VI.D regarding 1738C. Accordingly, South Carolina is not required to apply District of Columbia marriage law to persons in this State. C Marriage is Not a Judgment Requiring Recognition Under the Full Faith and Credit Clause
As noted above, Windsor emphasized that marriage is primarily a state issue. Given the Supreme Courts jurisprudence on the Full Faith and Credit Clause, defining and recognizing marriage is most certainly a state interest strong enough to qualify as sufficient to apply the states own law to a suit seeking to compel a state to recognize a same-sex marriage. 8
8 See Patrick J . Borchers, Baker v. General Motors, 32 Creighton L. Rev. at 170-71 (arguing that even where a couple marries in a state that permits same-sex marriage and resides there for several years, the later-acquired domicile is clearly a sufficient connection for the forum state to make determinations as to their marital status. . . . 42
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 42 of 45 The argument that marriage is a judgment cannot withstand scrutiny. According to the Second Restatement of Conflicts, a valid judgment is marked by four criteria: a state with the judicial jurisdiction to act in the case; a reasonable method of notification is employed and a reasonable opportunity to be heard is afforded to persons affected; a competent court renders the judgment; and there is compliance with such requirements of the state of rendition as are necessary for the valid exercise of power by the court. Restatement (Second) of Conflict of Laws 92 (1971). Marriage is marked by none of these constitutive elementsindeed, marriage is a consensual union totally lacking in any adversarial or adjudicative admixture, and thus it is not due the exacting regard judgments enjoy under the Full Faith and Credit Clause. 9
In a similar way, the marriage license itself is not a record that is constitutionally due full faith and credit. As an initial matter, a license, whether a marriage license or any other sort, is simply evidence of some right or privilege granted by the laws of a state. Whitten, Dummies, supra at 477. Moreover, if we were to accept that licenses are given a sort of national imprimatur by the Full Faith and Credit Clause, every state would then have to give every other states licenses not only the nod as to their evidentiary sufficiency, but also as to their effect, in that each license would trigger the same rights and privileges in one state as another. No constitutional command exists for such an expectation in this context or any otherthe Full 9 See Patrick J . Borchers, Baker v. General Motors, supra at 167 (To treat a marriage . . . as a judgment would make nonsense out of a great deal of existing full-faith-and-credit doctrine. If a marriage license is a judgment, then every one of the hundreds of decisions that have refused to recognize out-of-state marriages has been an undetected violation of the Clause. To carry the matter further, if a marriage license is a judgment, then so must be fishing and hunting licenses. J effrey L. Rensberger, Same-Sex Marriages and the Defense of Marriage Act: , 32 Creighton L. Rev. 409, 421 (1998) (A marriage is not a judgment for full faith and credit purposes . . . but (truly) a ministerial act. Despite a great deal of nonsense that has been written to the contrary, all of the hallmarks of a judicial proceeding are missing. There is neither adversariness nor a neutral decisionmaker with the power to grant or deny relief. Indeed, there is no decisionmaker empowered to decide what law to apply, a factor which the Supreme Court has relied upon to deny full faith and credit in another context.).
43
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 43 of 45 Faith and Credit Clause does not compel one state to treat licenses from another state in the same manner it does its own licenses. D
The State Is Not Required to Give Recognition to the District of Columbia Marriage of the Plaintiffs under 28 U.S.C. 1738C of the Defense of Marriage Act.
In 1996, Congress perceived a threat to state sovereignty posed by the potential of a misapplication of the Full Faith and Credit clause in the context of an out-of-state same-sex marriage, see, e.g., 142 Cong. Rec. H7441 (daily ed. J ul. 11, 1996) (Rep. Canady) (detailing Congress concerns and stating that I cannot imagine a more appropriate occasion for invoking our constitutional authority to define States obligations under the Full Faith and Credit Clause). In order to preempt any misapplication of the Full Faith and Credit Clause, Congress enacted Section 2 of DOMA which provides as follows: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
28 U.S.C.A. 1738C (West). Therefore, under the terms of this section, unchallenged in Windsor, the State of South Carolina is not required to recognize the DC marriage. CONCLUSION This case is not properly presented to this Court. It is barred by federalism, by the Eleventh Amendment immunity of the defendants 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 44 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 44 of 45 Carolinas 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. The other issues need not be reached, but to preserve the issues, we assert that J udge Niemeyers dissent in Bostic presents the sounder constitutional analysis. Although he did not consider Full Faith and Credit, that clause does not require South Carolina to recognize Plaintiffs District of Columbia marriage. 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, J r. J . EMORY SMITH, J R. Deputy Solicitor General Federal ID No. 3908 Email: ESMITH@SCAG.GOV
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 Defendants October 23, 2014 Governor and Attorney General
45 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 45 of 45 ATTACHMENT A
Bradacs v. Haley Defendants Memorandum in Support of Motion for Judgment on the Pleadings
Conde-Vidal v. Garcia-Padilla, No. 3:14-cv-01253PG (Oct. 21, 2014) 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-2 Page 1 of 1 ATTACHMENT B Bradacs v. Haley Defendants Memorandum in Support of Motion for Judgment on the Pleadings Statutes at Large, 1712, p. 508 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-3 Page 1 of 2 i , 1 i t fi l- 508 A. 1). 1712 STATUTESAT LARGE Engli sh Statutes Made of Force. band or wi fe, tlte former bei ngli vi ng. 3 Ins'r. 93. <'ro. Eli z. 91. 1 J. 1. e. 11. An Act to restrai n all Persons from Marri age unti l thei r former Wi ves andformer Husbands be dead. FORASMUCH as di vers evi l-di sposed persons bei ng marri ed, run Felonytomarry out of one county i nto another, or i nto places where they are not second as- knowtJ( an(j there become to be marri ed, havi ng another husband or wi fe li vi ng, to the great di shonor of God, and utter undoi ng of di vers honest mens chi ldren, and others; [2j Be i t therefore enacted, That i f any person or persons wi thi n hi s Majesty's domi ni ons of England and Er0- Can 461. "Wales, bei ng marri ed, or whi ch hereafter shall marry, do at any ti me Kelyng 79 80 'A^ter the end of the sessi on of thi s present parli ament, marry any per- tHalesP.C.6'J2. son or persons, the former husband or wi fe bei ng ali ve ; that then every such offence shall be felony, and the person and persons so offendi ng shali suffer death as i n cases of felony; [3] and the party and parti es so offendi ng shall recei ve such and the li ke proceedi ng, tri al and ex ecuti on i n such county where such person or persons shall be appre hended, as i f the offence had been commi tted i n such county where such person or persons shall he taken or apprehended. T1 e husbandor ^> ro'lAC'e^ always, That thi s Act, nor any therei n contai ned, shall wi fe, bei ng ab-extencl to ari y person or persons whose husband or wi fe shall he con sent 7 years ti nually remai ni ng beyond the seas by the space of 7 years together, fromthe other. or w]]0gg husband or wi fe shall absent hi mor herself the one fromthe other by the space of 7 years together, i n any parts wi thi n hi s Majes ty's domi ni ons, the one of them not knowi ng the other to be li vi ng wi thi n that ti me. III. Provi ded also, That thi s Act, nor any thi ngherei n contai ned, shai i Towhat per- extend toany person or persons that are or shall he at the ti me of such s"jjt'nStStalute marri age di vorced by any sentence had or hereafter tobe had i nthe ecri e- tend. X " si asti cal court ; [2] or toany person or persons where the former marri age hath been or hereafter shall he by sentence i n the ecclesi asti cal court declared tobe voi d and of noeffect; nor toany person or persons for or by reason of any former marri age had or made, or hereafter tobe had or made, wi thi n age ofconsent, ofbkmd"[uss"of Provi ded also, That no attai nder for thi s offence made felony by dower or i nheri tance. thi s Act, shall make or workany corrupti on of blood, loss of dower, di si nheri son ofhei r or hei rs. 3 Eli z. c. 16, repealed. 1 J. I.e. 12. An Acte agai nst Conjurati on, Wi tchcraft, and deali nge wi th Evi ll (nul Wi cked Spi ri ts. BEi t enacted, by the Ki ngour Sovrai gne Lorde, the Lordes Spi ri tuall and Temporall and the Comons i n thi s present Parli ament assembled, ami by the autbori ti e of the same. That the statute made i n the fi fth yci re of the rai gne of our late Sovrai gne Lady, of most famnn* and happi e memori e, Queene Eli zabeth, i nti tuled an Acte agai : conjurati on?, i nchantments and wi tchcrafts, be fromthe Feaste ofSt. IN ell the Arch- angell nexte comi nge, for and concerni nge all offences to omi tted atler the same Feaste, utterli e repealed. . 11. And for the better restrayni nge the sai d offenses and more se Invoki ngor puni shi nere the same, he i t further enacted by the autbori ti e afores consulti nu wnlj f & , i -r-i c i n-- , i ' ' i hat i f any person or persons, alter the sai de reaste oi St. Mi chae! Archangell next comi nge, shall use, practi se or exerci se i nvocati on or evi l spi ri ts, { < lo P' sh hi . an fu of tm or )i ! let ofi the Off.! i s a the ofs of r or (| ai tn. Tli u ofi t case FTh exi c-i v olsewi An A the. wi i 3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-3 Page 2 of 2
ATTACHMENT C
Bradacs v. Haley Defendants Memorandum in Support of Motion for Judgment on the Pleadings
1871 R.S. 440
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-4 Page 1 of 2
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-4 Page 2 of 2