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NORTHERN DISTRICT OF FLORIDA
J AMES DOMER BRENNER, et al.,
RICK SCOTT, et al.,
SLOAN GRIMSLEY, et al.,
RICK SCOTT, et al.,
Case No. 4:14-cv-107-RH-CAS
Case No. 4:14-cv-00138-RH-CAS
GRIMSLEY PLAINTIFFS’ CONSOLIDATED RESPONSE TO THE STATE
OFFICIALS’ MOTION TO DISMISS AND REPLY IN SUPPORT OF GRIMSLEY
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 1 of 24
The Grimsley Plaintiffs (“Plaintiffs”) respond to the State Officials’ (“Defendants”)
motion to dismiss and response to Plaintiffs’ motion for preliminary injunction. (DE
Defendants argue that Plaintiffs are not entitled to preliminary injunctive relief and that the
Complaint should be dismissed because (1) Plaintiffs fail to state a claim; and (2) the Court lacks
subject-matter jurisdiction over the claims against three of the four Defendants—the Governor,
Attorney General, and Surgeon General. As discussed below, none of these arguments has merit.
I. Plaintiffs have demonstrated a likelihood of success on the merits, warranting
preliminary injunctive relief.
Since Plaintiffs filed their motion for preliminary injunction, four additional courts have
held that state laws barring recognition of the marriages of same-sex couples (and also
prohibiting same-sex couples from marrying) violate the federal constitution—Latta v. Otter,
Case No. 1:13-cv-00482-CWD, --- F. Supp. 2d ----, 2014 WL 1909999 (D. Idaho May 13, 2014);
Wright v. Arkansas, Case No. 60CV-13-2662 (Cir. Ct. of Pulaski Cnty, Ark. May 9, 2014)
(available at DE 47-1); Geiger v. Kitzhaber, --- F. Supp. 2d ----, 2014 WL 2054264 (D. Or. May
References to docket entries are to the consolidated docket (Brenner) unless otherwise noted.
The “State Officials” are those sued in the Grimsley Plaintiffs’ amended complaint: Governor
Scott, Attorney General Bondi, Surgeon General and Secretary of Health for the State of Florida
Armstrong, and Agency Secretary for the Florida Department of Management Services Nichols.
See Grimsley DE 16 (First Amended Complaint). The Grimsley Plaintiffs do not address the
Washington County Clerk of Court’s arguments that claims brought by the Brenner plaintiffs are
not redressable by him. DE 49. (His other arguments have been addressed in the Grimsley
Plaintiffs’ opening brief. DE 42.) Nor do the Grimsley Plaintiffs address Defendants’ arguments
concerning claims that only the Brenner Plaintiffs assert (i.e., based on the rights to travel and
intimate association and the Establishment Clause).
The ensuing discussion doubles as a response to Defendants’ 12(b)(6) motion because all the
reasons Plaintiffs have demonstrated a likelihood of success on the merits also show that they
have alleged facts sufficient to state claims for Due Process and Equal Protection violations.
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 2 of 24
19, 2014); and Whitewood v. Wolf, --- F. Supp. 2d ----, 2014 WL 2058105 (M.D. Penn. May 20,
2014)—and another granted a preliminary injunction after finding a likelihood of success on the
merits of the claims, Baskin v. Bogan, --- F. Supp. 2d ----, 2014 WL 1814064 (S.D. Ind. May 8,
2014). Since the Supreme Court’s decision in United States v. Windsor, 133 S.Ct. 2675 (2013),
all thirteen federal district courts to have considered this question have come to the same
conclusion. Cf. Tanco v. Haslam, --- F. Supp. 2d ----, 2014 WL 997525, at *6 (M.D. Tenn. Mar.
14, 2014) (“[I]n light of this rising tide of persuasive post-Windsor federal caselaw, it is no leap
to conclude that the plaintiffs here are likely to succeed in their challenge . . . .”); Baskin, 2014
WL 1814064, at 7 (citing uniformity of decisions around the country rejecting marriage
recognition bans in concluding plaintiffs had likelihood of success on the merits supporting a
preliminary injunction). Defendants do not even attempt to explain why these cases are wrongly
decided or distinguishable.
A. The marriage recognition bans are unconstitutional under Windsor.
Defendants largely ignore the majority opinion in Windsor in their brief, relying more
heavily instead on J ustices Scalia and Alito’s dissenting opinions. See DE 50 passim. For
instance, Defendants cite a 1981 Supreme Court case and the Eleventh Circuit’s decision in
Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 807-08 (11th Cir. 2004), for
the proposition that an impermissible motive is not a basis to strike down an otherwise
constitutional law. DE 50 at 23-24. But in Windsor, the Supreme Court struck down Section 3 of
the federal Defense of Marriage Act (“DOMA”) precisely because no legitimate interest can
overcome what the Court concluded was DOMA’s purpose and effect to disparage and injure
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 3 of 24
same-sex couples. Windsor, 133 S.Ct. at 2693. Florida’s marriage recognition bans had the same
purpose and effect See DE 42 at 3, 10-15.
Defendants also ignore the fact that Windsor applied “careful consideration” because
DOMA, like Florida’s marriage recognition bans, was a “discrimination of an unusual
character,” Windsor, 133 S.Ct. at 2692 (see DE 42 at 10-12), and therefore erroneously view
Lofton as establishing the governing level of constitutional scrutiny.
As addressed in Plaintiffs’ opening brief, DE 42 at 10-16, Windsor compels the
conclusion that Florida’s marriage recognition bans are unconstitutional.
See, e.g., Obergefell v.
Defendants say the comments of legislators cited by Plaintiffs do not establish animus against
gay people on the part of the Florida Legislature or the Floridians who voted for Amendment 2
(the constitutional marriage recognition ban). DE 50 at 23. But as discussed more fully in
Plaintiffs’ opening brief, an impermissible purpose does not necessarily reflect “malicious ill
will.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J .,
concurring). What is impermissible is a “purpose to impose inequality.” Windsor, 133 S.Ct. at
2694; see also Romer v. Evans, 517 U.S. 620, 635 (1996) (striking down law that “classifies
homosexuals . . . to make them unequal”). Like DOMA, the purpose and effect of the Florida
marriage recognition bans are to deny same-sex couples the protections and respect that come
with marriage; exclusion of same-sex couples is not an incidental effect. See DE 42 (Opening
Br.) at 12-15, 26-27 n. 29.
Because “careful consideration” is applied in circumstances when there is reason to believe a
law is “motived by an improper animus or purpose,” id. at 2693, such scrutiny is equally
applicable to Fla. Const. Art. I, § 27 and § 741.212, Fla. Stat.’s prohibitions against same-sex
couples marrying within Florida.
Amicus Florida Family Action, Inc. (“FFAI”) apparently misunderstands the nature of this case
because it attempts to distinguish Windsor on the grounds that “there are no . . . ‘lawful
marriages’ at issue in this case. . . .” DE 48 (FFAI Br.) at 6. All of the Grimsley plaintiffs have
marriages that are every bit as lawful as Edith Windsor’s marriage and thus are constitutionally
entitled to the same recognition.
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 4 of 24
Wymyslo, 962 F. Supp. 2d 968, 973 (S.D. Ohio 2013) (the conclusion that Ohio’s marriage
recognition ban is unconstitutional “flows from the Windsor decision”).
B. Heightened scrutiny is warranted because the marriage recognition bans
burden the fundamental right to marry.
Defendants improperly recast Plaintiffs’ fundamental right to marry argument as an
argument based on a new “right to marry someone of the same sex.” DE 50 at 13.
But as more
fully discussed in Plaintiffs’ opening brief (DE 42 at 17-20), the scope of the fundamental right
to marry, like all fundamental rights, is not limited to those who historically have been permitted
to exercise that right. Every court to address the question since Windsor has therefore agreed that
excluding same-sex couples from marriage violates the Due Process Clause. See Bostic v.
Rainey, 970 F. Supp. 2d 456, 470-80 (E.D. Va. 2014); De Leon, 2014 WL 715741, at *17-21;
Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1196-1205 (D. Utah 2013); Obergefell, 962 F. Supp.
2d at 978-82; Latta, 2014 WL 1909999, at *9-13; Baskin, 2014 WL 1814064, at *4; Whitewood,
2014 WL 2058105, at *6-10.
Defendants suggest that Section 2 of DOMA gave the Florida legislature authority to enact §
741.212, Fla. Stat. DE 50 at 24 n.20. But Plaintiffs’ amended complaint is based on the Due
Process and Equal Protection Clauses of the Constitution. Section 2 of DOMA, which provides
that states are not required to give full faith and credit to marriages of same-sex couples entered
into in other states, see Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1263-64 (N.D. Okla.
2014), is irrelevant. See De Leon v. Perry, --- F. Supp. 2d ----, 2014 WL 715741, at *22 (W.D.
Tex. Feb. 26, 2014) (“Whatever powers Congress may have under the Full Faith and Credit
Clause, ‘Congress does not have the power to authorize the individual States to violate the Equal
Protection Clause.’” (quoting Graham v. Richardson, 403 U.S. 365, 382 (1971))).
Defendants simply ignore Plaintiffs’ argument that the marriage recognition bans burden their
protected liberty interest in their existing marriages. See DE 42 at 16-17.
After finding that the Due Process Clause “encompasses the right to marry a person of one’s
own sex,” the Whitewood court further noted that “it necessarily follows that [Pennsylvania’s
marriage recognition ban], which refuses to recognize same-sex marriages validly performed in
other jurisdictions, is also unconstitutional.” 2014 WL 2058105, at *9.
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 5 of 24
Defendants suggest that the fact that the Supreme Court dismissed Baker v. Nelson, 191
N.W.2d 185 (1971), appeal dismissed without op., 409 U.S. 810 (1972), for want of substantial
federal question after having decided Loving v. Virginia, 388 U.S. 1 (1967), means that the right
recognized in Loving did not include the right to marry a person of the same sex. DE 50 at 14
n.13. But as the Supreme Court said in Lawrence v. Texas, 539 U.S. 558, 578-79 (2003):
Had those who drew and ratified the Due Process Clauses of the Fifth
Amendment or the Fourteenth Amendment known the components of liberty in its
manifold possibilities, they might have been more specific. They did not presume
to have this insight. They knew times can blind us to certain truths and later
generations can see that laws once thought necessary and proper in fact serve only
As a federal district court in Utah explained, “[h]ere, it is not the Constitution that has changed,
but the knowledge of what it means to be gay or lesbian. The court cannot ignore the fact that the
Plaintiffs are able to develop a committed, intimate relationship with a person of the same sex
but not with a person of the opposite sex. The court, and the State, must adapt to this changed
understanding.” Kitchen, 961 F. Supp. 2d at 1203.
C. Heightened scrutiny is warranted because the marriage recognition bans
discriminate on the basis of sex.
Defendants do not address Plaintiffs’ argument (DE 42 at 20-22) that heightened scrutiny
applies because the marriage recognition bans discriminate on the basis of sex.
D. Heightened scrutiny is warranted because the marriage recognition bans
discriminate on the basis of sexual orientation.
Defendants argue that Lofton is binding precedent precluding application of heightened
scrutiny to sexual orientation classifications. As discussed more fully in Plaintiffs’ opening brief
Defendants rely on Lofton’s due process ruling, but that adoption case did not address the
fundamental right to marry or whether couples have a liberty interest in their existing marriages.
Thus, the due process holding in that case is not relevant to Plaintiffs’ claims.
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 6 of 24
(DE 42 at 22-26), the Lofton court’s holding that rational basis review applies to sexual
orientation classifications has been abrogated by Windsor, which applied a level of scrutiny that
was “unquestionably higher than rational basis review.” SmithKline Beecham Corp. v. Abbott
Labs, 740 F.3d 471, 481 (9th Cir. 2014); accord Whitewood, 2014 WL 2058105, at *10-11
(noting that Windsor did not apply rational basis review).
Most of the decisions Defendants cite that rejected heightened scrutiny (DE 50 at 16
n.15) relied on Bowers v. Hardwick, 478 U.S. 186 (1986), or Bowers-era precedent. See, e.g.,
Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (“[I]f the government can criminalize
homosexual conduct, a group that is defined by reference to that conduct cannot constitute a
‘suspect class.”). Courts now recognize that the precedential underpinning of those cases was
removed when the Supreme Court overruled Bowers in Lawrence. See, e.g., Pedersen v. Office of
Pers. Mgmt., 881 F. Supp. 2d 294, 312 (D. Conn. 2012) (“The Supreme Court’s holding in
Lawrence ‘remov[ed] the precedential underpinnings of the federal case law supporting the
defendants’ claim that gay persons are not a [suspect or] quasi-suspect class.’”) (citations
omitted); accord Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 984 (N.D. Cal.
2012). None of the post-Lawrence cases cited by Defendants evaluated the four factors identified
by the Supreme Court to determine if a classification warrants heightened scrutiny. As discussed
in Plaintiffs’ opening brief, numerous courts that have evaluated these factors since Lawrence
have concluded that sexual orientation classifications are suspect or quasi-suspect and thus are
appropriately evaluated under heightened scrutiny. See DE 42 at 23 n. 27; see also Wright, DE
47-1 at 3-4 (PDF pp.4-5); Whitewood, 2014 WL 2058105, at *10-14.
E. The marriage recognition bans fail even rational basis review.
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 7 of 24
In arguing that the marriage recognition bans satisfy rational basis review, Defendants
contend that there is a “clear and essential connection between marriage and responsible
procreation and childrearing.” DE 50 at 20-21. They assert that the marriage laws have a “close,
direct, and rational relationship to society’s legitimate interest in increasing the likelihood that
children will be born to and raised by the mothers and fathers who produced them in stable and
enduring family units.” Id. They rely exclusively on pre-Windsor precedent accepting these
justifications for discriminatory marriage laws and offer no argument as to why they should be
accepted after having been rejected by the Supreme Court in Windsor
and every court that has
considered them since Windsor.
Defendants assert Plaintiffs are wrong to argue that “the exclusion of same-sex couples
from the definition of marriage must further a legitimate state interest.” DE 50 at 21. Citing
Johnson v. Robison, 415 U.S. 361, 383 (1974), they say a classification will be upheld if “the
inclusion of one group promotes a legitimate governmental purpose, and the addition of other
groups would not.” DE 50 at 21-22. But even if there were some legitimate government interest
in extending the right to marry to heterosexual couples that did not apply to same-sex couples
(and there is not
), Plaintiffs are challenging the State’s exclusion of same-sex married couples
from its longstanding practice of recognizing legal marriages from other jurisdictions. See DE 42
See Merits Br. of the Bipartisan Legal Advisory Group, United States v. Windsor, 2013 WL
267026, at *21 (2013) (asserting the “unique relationship between marriage and procreation” and
“foster[ing] relationships in which children are raised by both of their biological parents”).
Every court that has addressed this question since Windsor has agreed that restricting marriage
to different-sex couples does not rationally further the goal of responsible procreation. De Leon,
2014 WL 715741, at *14-16; Bostic, 970 F. Supp. 2d at 477-80; Bishop, 962 F. Supp. 2d at
1290-92; Kitchen, 961 F. Supp. 2d at 1201-02.
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 8 of 24
The challenged law includes no one; it merely excludes. As discussed in Plaintiffs’
opening brief (DE 42 at 28-30), denying recognition of the marriages of same-sex couples
affords no benefit to different-sex couples who marry and thus does not rationally promote
procreation within marriage; indeed, it promotes just the opposite, forcing same-sex couples to
have families outside of marriage.
For this reason, Defendants’ reliance on Lofton for a rational basis for the marriage
recognition bans is misplaced. As discussed in Plaintiffs’ opening brief (DE 42 at 34-35), even if
Lofton’s acceptance of the asserted superiority of heterosexual parents as a justification for
excluding gay people from adopting children could still be considered good law, denying
recognition of the marriages of same-sex couples does not rationally further an interest in
promoting heterosexual-parent families for children.
Defendants also argue that the State “may rationally choose not to expand in wholesale
fashion the groups entitled to [the benefits the State affords to married couples].” DE 50 at 22.
But saving money or resources is not a legitimate justification for excluding a group from a
government benefit without an independent rationale for why the cost savings ought to be borne
Thus, the State is mistaken in focusing on Florida’s “unbroken history of defining marriage as
being between a man and a woman.” DE 50 at 18. The Grimsley Plaintiffs have all been legally
married in other states. The proper focus here is on Florida’s long history—broken only by the
adoption of the same-sex marriage recognition bans—of recognizing out-of-state marriages. See
DE 42 at 11 & n.17.
Amicus Florida Conference of Catholic Bishops, Inc. (“FCCB”), raises the specter of a
slippery slope to polygamous and incestuous marriages. DE 46 at 19. This same canard was
raised in defense of laws banning interracial marriage. See, e.g., Perez v. Lippold, 198 P.2d 17,
46 (Cal. 1948) (dissenting opinion from decision striking down law banning interracial
marriage). But the Supreme Court’s decision striking down bans on interracial marriage nearly
50 years ago did not lead to polygamous and incestuous marriages, and neither would ending the
exclusion of same-sex couples from marriage. In any event, speculation about the future cannot
justify the perpetuation of laws that unconstitutionally discriminate today.
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 9 of 24
by the particular group being denied the benefit. Plyler v. Doe, 457 U.S. 202, 227 (1982) (“Of
course, a concern for the preservation of resources standing alone can hardly justify the
classification used in allocating those resources.”).
Defendants offer no legitimate reason—
and there is no such reason—justifying Florida’s exclusion of same-sex married couples from the
benefits flowing from the recognition of their marriages.
F. Baker v. Nelson does not preclude Plaintiffs’ claims.
The Supreme Court’s 1972 summary dismissal of the appeal for want of a substantial
federal question in Baker
does not control here because of significant doctrinal developments
since Baker and because it did not involve the precise question at issue in this case. The
precedential value of a summary dismissal is not the same as that of an opinion of the Court
addressing the issue. Edelman v. Jordan, 415 U.S. 651, 671 (1974). “[I]f the Court has branded a
question as unsubstantial, it remains so except when doctrinal developments indicate
otherwise . . . . ” Hicks v. Miranda, 422 U.S. 332, 344 (1975) (emphasis added). Lower courts
thus must examine intervening doctrinal developments to determine whether the question
presented in a summary dismissal remains unsubstantial.
Defendants and amici FFAI and FCCB suggest that the recent plurality opinion of the
Supreme Court in Schuette v. Coalition to Defend Affirmative Action, 134 S.Ct. 1623 (2014),
insulates constitutional amendments passed by the voters from constitutional scrutiny. DE 50 at
23 n.18; DE 48 at 12-14; DE 46 (FCCB Amicus Br.) at 5-6, 8-9, 12. It says no such thing. The
plurality distinguished the Michigan constitutional amendment prohibiting affirmative action
from state constitutional amendments that inflict injury on minorities. Id., at 1636. The plurality
made clear that its comments about the capacity of voters to decide issues of sensitivity do not
apply to the latter: “These precepts are not inconsistent with the well-established principle that
when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or
other state action, the Constitution requires redress by the courts.” Id. at 1637. The plurality did
not authorize otherwise unconstitutional government action as long as it is enacted by the voters.
Under Defendants’ and amici’s radical interpretation, a ban on interracial marriage would be
immunized from legal challenge if enacted by the voters rather than the legislature.
Baker v. Nelson, 191 N.W.2d 185 (1971), appeal dismissed without op., 409 U.S. 810 (1972).
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 10 of 24
Both equal protection and substantive due process doctrine have undergone a sea change
since 1972. In Windsor, the Second Circuit held that one of the reasons Baker did not control
was that “[i]n the forty years after Baker, there have been manifold changes to the Supreme
Court’s equal protection jurisprudence.” Windsor v. United States, 699 F.3d 169, 178-79 (2d Cir.
2012), aff’d, 133 S. Ct. 2675 (2013); id. at 179 (“These doctrinal changes constitute another
reason why Baker does not foreclose our disposition of this case.”).
As the Court explained:
When Baker was decided in 1971, “intermediate scrutiny” was not yet in the
Court’s vernacular. Classifications based on illegitimacy and sex were not yet
deemed quasi-suspect. The Court had not yet ruled that “a classification of
[homosexuals] undertaken for its own sake” actually lacked a rational basis. And,
in 1971, the government could lawfully “demean [homosexuals’] existence or
control their destiny by making their private sexual conduct a crime.”
Id. (citations omitted).
Similarly, Baker could not and did not address how Plaintiffs’ substantive due process or
equal protection claims should be evaluated in light of the Court’s intervening decisions in
Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973); Carey v.
Population Servs. Int’l, 431 U.S. 678 (1977); Zablocki v. Redhail, 434 U.S. 374 (1978); Turner
v. Safley, 482 U.S. 78 (1987); Lawrence, 539 U.S. 558 (2003); and Windsor, 133 S. Ct. 2675
(2013). For this reason, numerous courts in addition to the Second Circuit have held that Baker is
not controlling precedent.
The other reason was that Baker involved a challenge to a state law and Windsor addressed the
constitutionality of a federal law. 699 F.3d at 179.
See Whitewood, 2014 WL 2058105, at *4-6; Latta, 2014 WL 1909999, at *7-9; Wright, DE
47-1 at 9 (PDF p.10); DeBoer v. Snyder, 973 F. Supp. 2d 757, 773 n.6 (E.D. Mich. 2014); De
Leon, 2014 WL 715741, at *8-10; Bostic, 970 F. Supp. 2d at 469-70; Bourke v. Beshear, --- F.
Supp. 2d ----, 2014 WL 556729, at *13 n.1 (W.D. Ky. Feb. 12, 2014); McGee v. Cole, --- F.
Supp. 2d ----, 2014 WL 321122, at *8-10 (S.D. W.Va. J an. 29, 2014); Bishop, 962 F. Supp. 2d at
1274-77; Kitchen, 961 F. Supp. 2d at 1194-95; Garden State Equality v. Dow, 2012 WL 540608,
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 11 of 24
Notably, Defendants rely solely on pre-Windsor precedent. But no court to consider this
question since Windsor has agreed with Defendants’ position. Moreover, it is “notable that while
the [Supreme] Court declined to reach the merits in Hollingsworth v. Perry[, 133 S.Ct. 2652
(2013),] because the petitioners lacked standing to pursue the appeal, the Court did not dismiss
the case outright for lack of a substantial federal question.” Kitchen, 961 F. Supp. 2d at 1195.
As to the precise issue in this case—recognition of the Grimsley Plaintiffs’ marriages—
Baker would not control for the additional reason that it involved a different issue than the
question presented in this case (Grimsley). Summary dispositions “prevent lower courts from
coming to opposite conclusions on the precise issues presented and necessarily decided by those
actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977). Baker addressed the constitutionality of a
Minnesota law that limited the ability to marry to different-sex couples. It did not consider the
constitutionality of a law barring recognition of valid marriages of same-sex couples entered into
in other jurisdictions. See Bourke, 2013 WL 556729, at *13 (distinguishing Baker on this
For all these reasons, Baker does not preclude Plaintiffs’ claims.
at *4 (N.J . Super. Ct. Feb. 21, 2012); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 873 (C.D.
Cal. 2005), vacated on other grounds, 447 F.3d 673 (9th Cir. 2006); In re Kandu, 315 B.R. 123,
138 (Bankr. W.D. Wash. 2004).
Even in the context of considering claims of plaintiffs seeking to get married, Baker did not
involve the same precise issue. Baker addressed the constitutionality of a Minnesota marriage
law passed at a time before there was any public discussion about marriage for same-sex couples.
It did not consider the constitutionality of a law that specifically was enacted by a state in order
to preclude marriage for same-sex couples, see DE 50 (State Officials’ Br.) at 18 (noting that
Florida’s statutory marriage recognition ban was enacted following the issue of same-sex
marriage being raised in Hawaii), and whether such an enactment had the “purpose and effect to
disparage and to injure” same-sex couples. Windsor, 133 S. Ct. at 2696.
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 12 of 24
II. Plaintiffs have demonstrated irreparable harms warranting preliminary injunctive
In addition to attacking Plaintiffs’ claims on the merits, Defendants further contend that
Plaintiffs “do not allege any harm [that] is truly irreparable.” DE 50 at 28.
They cite Sampson
v. Murray, 415 U.S. 61, 89-90, 91-92 (1974) for the proposition that neither dignitary nor
monetary harms are irreparable. DE 50 at 29.
Sampson simply does not stand for the proposition that the “humiliat[ion],” Windsor, 133
S.Ct. at 2694, imposed on Plaintiffs’ children and the dignitary harms imposed on all Plaintiffs
are not irreparable. Sampson concerned an employee who sought to preliminarily enjoin an
impending dismissal from her job because she believed the termination would cause her
embarrassment and humiliation. 415 U.S. at 62-63. This is not remotely analogous to the harms
stemming from the stigmatization of Plaintiffs and their children concerning something as
fundamental as the legitimacy of their family in the eyes of the state. See DE 42 at 35-37. These
are irreparable harms warranting a preliminary injunction. See Tanco, 2014 WL 997525, at *7.
Regarding monetary harms, Sampson merely stands for the familiar rule that “[a]n injury
is ‘irreparable’ only if it cannot be undone through monetary remedies.” Ne. Fla. Chapter of
Ass’n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir.
1990) (citing Sampson, 415 U.S. at 90). It did not say that monetary losses can never constitute
irreparable harm; to the contrary, it contemplated that in some cases they can. Sampson, 415 U.S.
at 90 (“[T]he temporary loss of income, ultimately to be recovered, does not usually constitute
irreparable injury.”) (emphasis added); see also, e.g., Della Valle v. U.S. Dep’t of Agric., 619 F.
Defendants also contend there is a lack of immediacy to Plaintiffs’ claims because some of the
harms have been ongoing for many years. DE 50 at 29. But the standard for a preliminary
injunction is irreparable injury; the fact that a plaintiff has long endured an irreparable harm does
not mean he or she is not entitled to preliminary injunctive relief.
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 13 of 24
Supp. 1297, 1304 (D.R.I. 1985) (economic loss to a business constituted irreparable harm where
it created risk of the business having to shut down). Among the injuries to Arlene Goldberg
caused by the marriage recognition bans is the ineligibility for her late spouse’s Social Security
benefits, which not only denigrates their relationship but harms Arlene’s ability to “properly care
for [herself] or [her deceased wife’s] parents.” DE 42-1 (Goldberg Decl.) at 11, ¶ 7. Neither of
these are injuries that can be later remedied through money damages. Not only does the Eleventh
Amendment preclude Arlene from seeking monetary damages,
but each day that goes by that
Arlene and her in-laws struggle financially and thus experience a lower standard of living is an
Defendants also find relevant that “[e]very federal injunction against a State’s traditional
marriage law to date has been stayed, either by the courts issuing those injunctions or by the
courts reviewing them.” DE 50 at 32. As an initial matter, Plaintiffs note that stays were not in
See Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1289 (11th Cir.
2013) (“In the context of preliminary injunctions, . . . the inability to recover monetary damages
because of sovereign immunity renders the harm suffered irreparable.”).
There are other irreparable harms as well. In Obergefell, the court recognized the
importance—both to the decedent before his death, and his widower—of having a death
certificate that accurately reflects the couple’s marriage and lists the surviving spouse.
Obergefell v. Kasich, Case No. 1:13-cv-00501-TSB, DE 23, at 1 (S.D. Ohio Sept. 3, 2013),
attached as Exhibit 2 (granting temporary restraining order for widower to be able to obtain
death certificate for his late spouse that reflects their marriage); Obergefell, 962 F. Supp. 2d at
997 (“Dying with an incorrect death certificate that prohibits the deceased Plaintiffs from being
buried with dignity constitutes irreparable harm.”). Here, all plaintiffs want their own and their
spouse’s death certificates to accurately reflect their marriage when they pass away. E.g., DE 42-
1 at 4, ¶ 8; 32, ¶ 13; 35, ¶ 9. The marriage recognition bans are currently causing irreparable
harm to Arlene Goldberg, who, in her time of grief, cannot obtain a death certificate for her late
wife that recognizes their marriage and lists her as the surviving spouse. Id. at 11, ¶ 9.
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 14 of 24
fact issued in all cases.
But regardless of whether other courts have issued stays, the fact of a
stay being issued is immaterial to the preliminary injunction analysis itself. See Baskin, 2014 WL
1814064, at *3 (“[D]espite these stays, no court has found that preliminary injunctive relief is
inappropriate simply because a stay may be issued.”). Even in contexts where stays are granted,
relief is still obtained more quickly than if the plaintiffs were first required to obtain a final
judgment on the merits. The Court should enjoin enforcement of these unconstitutional laws.
III. The Court has jurisdiction over the claims against the Governor, Attorney General,
and Surgeon General.
In addition to arguing that Plaintiffs are not entitled to preliminary injunctive relief and
that Plaintiffs fail to state a claim, Defendants further contend that this Court lacks subject-matter
jurisdiction over claims concerning the Governor, Attorney General, and Surgeon General
because of Eleventh Amendment immunity and because Plaintiffs lack standing to assert claims
against these individuals. DE 50 at 3-8.
A. The Eleventh Amendment does not preclude suit against Defendants.
The doctrine of Ex parte Young, 209 U.S. 123 (1908), “rests on the premise—less
delicately called a ‘fiction,’—that when a federal court commands a state official to do nothing
more than refrain from violating federal law, he is not the State for sovereign-immunity
purposes.” Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011) (citations
omitted). “In determining whether the doctrine of Ex parte Young avoids an Eleventh
Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the
See Jesty v. Haslam, 2014 WL 1117069, at *5 (M.D. Tenn. Mar. 20, 2014) (denying state’s
motion for stay pending appeal); Henry v. Himes, 2014 WL 1512541, at *2 (S.D. Ohio Apr. 16,
2014) (declining to stay injunction with respect to plaintiffs’ as-applied claims); Obergefell,
2013 WL 3814262, at *7 (S.D. Ohio J uly 22, 2013) (granting temporary restraining order for one
plaintiff couple); Obergefell, Case No. 1:13-cv-00501-TSB, DE 23 (S.D. Ohio Sept. 3, 2013)
(granting temporary restraining order for another plaintiff). In addition, there was no stay of the
injunctions in Baskin, 2014 WL 1814064, or Whitewood, 2014 WL 2058105.
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 15 of 24
complaint alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)
(alteration and internal quotation marks omitted).
The Eleventh Circuit has interpreted Ex parte Young to permit suits against state officers
“when those officers are ‘responsible for’ a challenged action and have ‘some connection’ to the
unconstitutional act at issue.” Women’s Emergency Network v. Bush, 323 F.3d 937, 949 (11th
Cir. 2003); see also 1st Westco Corp. v. Sch. Dist., 6 F.3d 108, 114 (3d Cir. 1993) (“Ex [p]arte
Young allows a party to be joined to a lawsuit based solely on his or her general obligation to
uphold the law” where there is a real potential for enforcement against plaintiffs). The Governor,
Attorney General, and Surgeon General fit squarely within the Young exception to Eleventh
1. The Governor and Attorney General
Under the Florida Constitution, the Governor is vested with “[t]he supreme executive
power.” Fla. Const. Art. IV, § 1(a). It is the Governor’s duty to “take care that the laws,”
including the marriage recognition bans (Fla. Const. Art. I, § 27 and § 741.212, Fla. Stat.), are
“faithfully executed.” Id. And the governor is “the chief administrative officer of the state
responsible for the planning and budgeting for the state.” Id. In other words, he is the chief
policy maker of the executive branch of Florida and thus has the power to direct all executive-
branch agencies and officials that afford benefits or impose obligations based on an individual’s
marital status to either recognize the marriages of same-sex spouses or not.
The Eleventh Circuit has made clear that the Governor’s executive power is sufficient to
confer jurisdiction unless a challenged law’s enforcement is the responsibility of another party.
Women’s Emergency Network, 323 F.3d at 949-50 (“Where the enforcement of a statute is
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the responsibility of parties other than the governor . . . , the governor’s general executive power
is insufficient to confer jurisdiction.”).
Plaintiffs are not challenging a typical law that is within the enforcement responsibility of
one agency. The marriage recognition bans cut across many if not all components of state
There is no state agency that has the responsibility of enforcing all aspects of the
marriage recognition bans. The Governor’s responsibility for formulating and administering
executive branch policy therefore makes him a proper defendant for purposes of an Ex parte
Moreover, some protections tied to an individual’s marital status have no connection to
any particular state agency’s actions and thus flow only from the general enforcement of the law
by the Governor. For example, Plaintiff Arlene Goldberg is unable to collect Social Security
survivor’s benefits not because of a particular state agency’s action but simply because Florida
law, which the Governor has the duty to execute, bars recognition of her marriage. See GN
00210.400 Same-Sex Marriage - Benefits for Surviving Spouses, available at
Moreover, the Governor is an appropriate defendant because he can appropriately
respond to injunctive relief by establishing marriage recognition as executive branch policy and
ordering all executive-branch state agencies and their officials to comply. See Hartmann v. Cal.
Dep’t. of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013) (“A plaintiff seeking injunctive
relief against the State is not required to allege a named official’s personal involvement in the
acts or omissions constituting the alleged constitutional violation. Rather, a plaintiff need only
Like DOMA, Florida’s marriage recognition bans are “a system-wide enactment with no
identified connection to any particular area of [state] law” and affect “the entire [Florida] Code.”
Windsor, 133 S. Ct. at 2694.
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identify the law or policy challenged as a constitutional violation and name the official within the
entity who can appropriately respond to injunctive relief.” (citations omitted)).
The Attorney General also has a sufficient connection to the enforcement of the marriage
recognition bans to permit suit against her. The Attorney General is the “chief state legal
officer,” Fla. Const. Art. IV § 4(b), and “[s]hall appear in and attend to, in behalf of the state, all
suits or prosecutions, civil or criminal or in equity, in which the state may be a party, or in
anywise interested, in the Supreme Court and district courts of appeal of this state.” § 16.01(4),
Fla. Stat. Indeed, the Attorney General’s very act of defending the Florida marriage recognition
bans in this litigation demonstrates the connection of her office to this issue. Attorneys general in
several other states, by contrast, “have . . . declined to defend . . . same-sex marriage bans . . . on
the basis that the laws are unconstitutional.” Tanco, 2014 WL 997525, at *5 n.9.
Other courts have permitted suits against similarly situated governors and attorneys
general. For example, in Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 864 (8th Cir. 2006),
the court held that the governor and attorney general were proper defendants under Ex parte
Young in a lawsuit challenging a Nebraska marriage amendment similar to Florida’s. Likewise,
in Finstuen v. Edmondson, No. 5:04-cv-01152-C, DE 20 (W.D. Okla. Dec. 7, 2004), attached as
Exhibit 1, the court rejected Eleventh Amendment immunity arguments raised by the Oklahoma
governor and attorney general in a case challenging a state law barring the state from recognizing
out-of-state adoptions by individuals of the same sex. The court reasoned that the governor and
attorney general were proper defendants because (1) “the modified statute does not provide any
Other cases involving marriage recognition bans have enjoined or entered final judgment
against governors and attorneys general. See DeBoer, 973 F. Supp. 2d 757; Tanco, 2014 WL
997525; De Leon, 2014 WL 715741; Bourke, 2014 WL 556729; Kitchen, 961 F. Supp. 2d 1181;
see also Baskin, 2014 WL 1814064 (attorney general only).
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means for enforcement, but is directed to the state itself,” so the enforcement fell “squarely on
the shoulders of these defendants”; (2) as to the governor, he had “both the authority and the duty
to enforce the statute” because the Oklahoma Constitution provided that the governor “shall
cause the laws of the State to be faithfully executed”; and (3) as to the attorney general, he had a
duty to “initiate or appear in any action in which the interests of the state or the people of the
state are at issue, or to appear at the request of the Governor, the Legislature, or either branch
thereof, and prosecute and defend . . . any cause or proceeding, civil or criminal, in which the
state may be a party or interested.” Id., slip op. at 6-7. These powers of the Oklahoma governor
and attorney general closely track the powers of these officials under Florida law; the Florida
officials are likewise proper defendants.
The cases cited by Defendants that apply Eleventh Amendment immunity “to governors
and attorneys general in other factual contexts,” DE 50 at 4 n.4, are inapposite. The holdings of
1st Westco, 6 F.3d 108; Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001); and Children’s
Healthcare Is a Legal Duty, Inc. v. Deters, 92 F.3d 1412 (6th Cir. 1996), “merely reinforce the
rather unremarkable rule that you may not name the attorney general or governor as a party to
challenge a statute enforced exclusively by either (1) other state officials, or (2) private parties
through a private cause of action—or, put another way, when the state officials do not have any
enforcement connection to the statute.” Finstuen, Ex. 1, slip. op. at 5 (referencing 1st Westco,
Okpalobi, and Deters). The same is true of Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d
There is nothing out of the ordinary in including governors or attorneys general as defendants
in lawsuits attacking the constitutionality of the state laws their administrations enforce. See, e.g.,
Scott v. Williams, 107 So.3d 379 (Fla. 2013); Crist v. Ervin, 56 So.3d 745 (Fla. 2010);
Lightbourne v. McCollum, 969 So.2d 326 (Fla. 2007); see also, e.g., Perry v. Brown, 671 F.3d
1052 (9th Cir. 2012); Romer v. Evans, 517 U.S. 620 (1996); Planned Parenthood v. Casey, 505
U.S. 833 (1992); Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 19 of 24
316, 330-31 (4th Cir. 2001). As discussed above, that is not the case here. As for Bishop v.
Oklahoma, 333 F. App’x 361, 365 (10th Cir. 2009), the Tenth Circuit there reasoned that the
governor and attorney general were not proper defendants because, among other reasons, under
Oklahoma law, “recognition of marriages is within the administration of the judiciary, [so] the
executive branch of Oklahoma’s government has no authority to issue a marriage license or
record a marriage.” Id. at 365. Here, Plaintiffs seek relief from executive branch officials who
oversee the enforcement of the laws of Florida, including the marriage recognition bans, making
them proper defendants.
2. The Surgeon General
The Surgeon General is responsible for the enforcement of the marriage exclusion with
respect to death certificates. Defendants acknowledge that the Surgeon General is responsible for
creating forms for death certificates and registering, recording, and certifying death certificates.
DE 50 at 5. They assert, however, that Plaintiffs cannot bring claims against him because they
have not alleged that he has taken or threatened any actions to enforce the challenged marriage
provisions against them. Id. Given that the marriage recognition bans preclude recognition of
same-sex couples’ marriages, the terms “marital status” and “surviving spouse” on the death
certificate forms necessarily exclude same-sex spouses, and a death certificate identifying a
To the extent the Second Circuit in Mendez v. Heller, 530 F.2d 457 (1976), adopts a narrower
general rule with respect to the role of New York’s attorney general, that holding is inconsistent
with the law in other circuits. Notably, the authority cited in Mendez actually supports the
inclusion of the Governor in this lawsuit. See Fed. Nat’l Mortgage Ass’n v. Lefkowitz, 383 F.
Supp. 1294, 1298 (S.D.N.Y. 1974) (“The Governor of New York is charged by the state
constitution with the duty to ‘take care that the laws are faithfully executed.’ . . . [T]his
constitutional mandate . . . provides a sufficient connection with the enforcement of the statute to
make the Governor a proper defendant.”).
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same-sex surviving spouse cannot be registered, recorded, or certified. Nor can a death certificate
be amended to reflect a same-sex surviving spouse. See DE 50-3 (J ones Decl.), ¶ 8.
To the extent Defendants are suggesting that in order to bring a claim against the Surgeon
General a surviving spouse like Arlene Goldberg would first need to request that the Surgeon
General (through the Florida Department of Health) issue an amended death certificate for her
late spouse reflecting her marital status and get denied, that position should be rejected because
the marriage recognition bans are unambiguous and Plaintiffs are not required to engage in futile
gestures to establish jurisdiction or standing. See Kozak v. Hillsborough Pub. Transp. Comm’n,
695 F. Supp. 2d 1285, 1295 (M.D. Fla. 2010) (despite general rule that “to establish standing to
challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy,”
no such requirement exists if “application for the benefit . . . would have been futile”); see also
Sammon v. N.J. Bd. of Med. Examiners, 66 F.3d 639, 643 (3d Cir. 1995) (“[L]itigants are not
required to make . . . futile gestures to establish ripeness.”); cf. Int’l Bhd. of Teamsters v. United
States, 431 U.S. 324, 365 (1977) (“If an employer should announce his policy of discrimination
by a sign reading ‘Whites Only’ on the hiring-office door, his victims would not be limited to the
few who ignored the sign and subjected themselves to personal rebuffs.”).
B. Plaintiffs’ injuries confer standing to bring their claims against Defendants.
Defendants assert that stigma and emotional harm are not sufficient to establish standing
and that Plaintiffs must allege a “concrete injury” such as “some deprivation of some
government benefit or right to public use on a discriminatory basis.” DE 50 at 7. But the
Supreme Court has “repeatedly emphasized” that “discrimination itself, by perpetuating ‘archaic
and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately
inferior’ and therefore as less worthy participants in the political community, can cause serious
noneconomic injuries . . . .” Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) (citations
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 21 of 24
omitted). Thus, discriminatory classifications are actionable as constitutional violations even in
the absence of a denial of a corresponding state benefit. Id. at 739 (“[T]he right to equal
treatment guaranteed by the Constitution is not coextensive with any substantive rights to the
benefits denied the party discriminated against.”).
In the specific context of marriage, the Supreme Court in Windsor declared that the
discrimination caused by the non-recognition of same-sex couples’ marriages “impose[s] a
disadvantage, a separate status, and so a stigma upon” same-sex couples in the eyes of the state
and the broader community. 133 S. Ct. at 2693. Florida’s non-recognition of out-of-state
marriages of same-sex couples causes the same harms to Plaintiffs. See, e.g., De Leon, 2014 WL
715741, at *8 (finding these dignitary harms sufficient to confer standing).
Plaintiffs have shown numerous harms, both tangible and intangible, that are caused by
the Defendants’ enforcement of the marriage recognition bans. Tangible harms include the
inability to make medical decisions for one’s spouse; denial of access to a spouse’s social
; denial of spousal health insurance benefits through public employers;
The cases Defendants cite do not support the proposition that stigma and emotional harm are
not injuries sufficient to establish standing. In Allen v. Wright, 468 U.S. 737, 762 (1984), unlike
here, the Plaintiffs were not themselves denied equal treatment. And Smith ex rel. Smith v.
Siegelman, 322 F.3d 1290 (11th Cir. 2003), addressed whether stigma itself constitutes a liberty
interest protected by the Due Process Clause. Here, Plaintiffs’ Due Process claim is based on the
fundamental right and liberty interest in marriage and having their marriages legally recognized.
While the stigmatizing effect of having their marriages disregarded by the State is one of the
injuries experienced by the Plaintiffs, the stigma itself is not the liberty interest they are
Defendants argue that it is speculative whether an injunction against enforcement of the
marriage exclusion would result in Arlene Goldberg receiving her late spouse’s Social Security
benefits because, they say, the Social Security program operations manual system (POMS)
indicates that a claim like hers would be put on “hold.” DE 50 at 8 n.10. The POMS instructions
for processing surviving spouse claims involving a same-sex marriage provide that a “hold” is
only mandated if the deceased was domiciled at the time of death in a state that does not
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 22 of 24
inability to make certain pension designations providing continuing spousal benefits; and
omission of surviving spouses from death certificates. See DE 42 (Opening Br.) at 37-38. The
marriage recognition bans also profoundly stigmatize Plaintiffs by relegating them to an inferior
status and harm their children by sending the message that their families are not true families
deserving of the same respect as other families. See DE 42 at 35-37. These harms—whether they
are financial, emotional, or dignitary—plainly are cognizable injuries that confer standing.
For the reasons stated, Plaintiffs respectfully request that this Court deny Defendants’
motion to dismiss and grant Plaintiffs’ motion for preliminary injunction.
Dated: May 27, 2014 Respectfully submitted,
/s/ Daniel B. Tilley
Daniel B. Tilley
Florida Bar No. 102882
ACLU Foundation of Florida
4500 Biscayne Blvd., Suite 340
Miami, FL 33137
Florida Bar No. 305601
ACLU Foundation of Florida
4500 Biscayne Blvd., Suite 340
Miami, FL 33137
ATTORNEYS FOR PLAINTIFFS
Stephen F. Rosenthal
Florida Bar No. 131458
Podhurst Orseck, P.A.
25 West Flagler Street, Suite 800
Miami, FL 33130
125 Broad Street, 18th Floor
New York, New York 10004
recognize same-sex marriage; otherwise, the claim should be treated no differently than the claim
involving different-sex spouses. See GN 00210.400 Same-Sex Marriage - Benefits for Surviving
Spouses, available at https://secure.ssa.gov/poms.nsf/lnx/0200210400. Thus, if this Court orders
Defendants to recognize Arlene’s marriage, the Social Security Administration will recognize the
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 23 of 24
Certificate of Service
I certify that on May 27, 2014, I electronically filed this document with the Clerk of Court using
CM/ECF, which automatically serves all counsel of record via electronic transmission of Notices
of Electronic Filing generated by CM/ECF.
/s/ Daniel B. Tilley
Daniel B. Tilley
Case 4:14-cv-00107-RH-CAS Document 59 Filed 05/27/14 Page 24 of 24
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HEATHER FINSTUEN, et al., )
vs. ) No. CIV-04-1152-C
DREW EDMONDSON, in his official )
capacity as Attorney General of Oklahoma; )
and BRAD HENRY, in his official capacity )
as Governor of Oklahoma, )
O R D E R
Plaintiffs have sued Oklahoma’s governor, Brad Henry (Henry), and attorney general,
Drew Edmondson (Edmondson), to enjoin their enforcement of Oklahoma’s Adoption Code,
which prohibits the state, its agencies, or its courts from recognizing out-of-state adoptions
by same-sex couples. Defendants have moved for dismissal, claiming that they are protected
from suit by Eleventh Amendment immunity. The Court disagrees. Because the Plaintiffs
are seeking prospective equitable relief from state officials for alleged violations of federal
law, Defendants are not shielded from suit by the Eleventh Amendment. Therefore,
Defendants’ motion to dismiss (Dkt. No. 13) is denied.
On May 3, 2004, the Oklahoma legislature amended Oklahoma’s Adoption Code to
prevent the state from recognizing “an adoption by more than one individual of the same sex
from any other state or foreign jurisdiction.” 10 Okla. Stat. § 7502-1.4. Plaintiffs allege that
the Adoption Code was amended in response to an Opinion issued by Edmondson concluding
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that the U.S. Constitution and Oklahoma law required an Oklahoma agency to recognize
adoption decrees issued by other states to same-sex couples. See 2004 OK AG 8, ¶¶ 14, 16.
As a result, Edmondson concluded that the Oklahoma State Department of Health was
required to issue supplementary birth certificates to persons adopted by same-gender parents.
Plaintiffs are families composed of children adopted out-of-state by same-sex parents
who either now live in or wish to travel to Oklahoma. Collectively, they filed this action
challenging the amended statute as unconstitutional under the Full Faith & Credit Clause and
the Equal Protection Clause, additionally claiming that the law violates their right to travel
freely among the states. Plaintiffs seek a declaration that the newly-enacted provision of the
Adoption Code is unconstitutional and request the entry of an injunction barring Edmondson
and Henry from enforcing or attempting to enforce the subject provision.
The Court begins by noting what Defendants are not arguing in this motion –
Defendants are not challenging the justiciability of Plaintiffs’ claims. Defendants appear
specially to argue only that they are protected from suit by the Eleventh Amendment.
Generally, the Eleventh Amendment prevents a citizen from suing a state in federal
court. U.S. Const. Amend. XI; Hans v. Louisiana, 134 U.S. 1, 13-15 (1890). A suit for
money damages against a state official in his official capacity is usually considered a suit
against the state and, consequently, is barred by the Eleventh Amendment. See Elephant
Butte Irrigation District v. Dept. of the Interior, 160 F.3d 602, 607 (10th Cir. 1998).
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However, when a plaintiff names a state official as a defendant and seeks only
prospective equitable relief for violations of federal law, the Eleventh Amendment does not
bar the suit. Ex Parte Young, 209 U.S. 123, 159-60 (1908); id. at 607-08. In reaching the
holding in Ex Parte Young, the Supreme Court concluded that state officials have no
authority to violate federal law and, thus, the Eleventh Amendment does not shield them
from liability. Ex Parte Young, 209 U.S. at 159-60. Ex Parte Young attempts to strike a
balance between protecting states’ sovereignty and holding states responsible for violations
of federal law. Frew v. Hawkins, 540 us 431, ___, 124 S.Ct. 899, 903 (2004); see also Erwin
Chemerinsky, Federal Jurisdiction § 7.1, 7.5.1 (4th ed. 2003). The Ex Parte Young doctrine
permits suit against state officers upon satisfaction of a four-part test: (1) the action must be
against the state officials and not the state itself; (2) Plaintiffs must have alleged a non-
frivolous violation of federal law; (3) the relief sought must be prospective, equitable relief,
rather than compensatory damages or other retroactive monetary relief to be paid from the
state treasury; and (4) the suit cannot implicate “special sovereignty issues.” Lewis v. New
Mexico Dept. of Health, 261 F.3d 970, 975 (10th Cir. 2001); Elephant Butte, 160 F.3d at
609. If Plaintiffs meet each element of this test, they may proceed against the state officials.
Defendants do not specifically address the four-part test articulated by the Tenth
Circuit. Defendants’ arguments, however, appear to challenge whether Plaintiffs have
satisfied the first prong of the test – is Plaintiffs’ suit really one against the Defendants as
state officials or against the state itself? Defendants argue that they are entitled to immunity
because they have not enforced or threatened to enforce the amended statute. According to
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Defendants, until they actually enforce or threaten to enforce the provisions, they are entitled
to Eleventh Amendment Immunity. Defendants also argue that they have no duty to enforce
the newly-revised statute. Defendants assert that the statute does not contain any procedures
for its enforcement and Defendants have no “power or duty” to enforce the amended statute
except for a general duty to uphold the laws of the State of Oklahoma. Defendants contend
that this general duty is insufficient to demonstrate that they have any connection to the
enforcement of the statute. Defendants’ arguments are unavailing.
Defendants’ arguments rely primarily on an 1899 case, Fitts v. McGhee, 172 U.S. 516
(1899), and language in Ex Parte Young distinguishing Fitts. In Fitts, railroad companies
sued the governor and attorney general of Alabama to challenge a statute fixing the
maximum toll rates for crossing the bridges over the Tennessee River. Fitts, 172 U.S. at 516.
If toll operators charged too much, the statute permitted the persons over-charged to collect
penalties via a private civil action against the operator. Id. The Supreme Court found that
the state officials named had no connection to the collection of the penalties and that naming
them as parties was simply an effort to test the constitutionality of the statute. Id. at 530.
The Court in Ex Parte Young examined Fitts. The Court found that the named
officials in Fitts had no connection whatsoever to the alleged unconstitutional act, and, in
distinguishing that situation from the one before it in Ex Parte Young, stated that “some
connection” with the enforcement of the unconstitutional act was necessary to make the state
officials parties to the suit. Ex Parte Young, 209 U.S. at 157-58. A duty arising out of the
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general law was sufficient to establish this connection; it was unnecessary that a duty to
enforce stem from the unconstitutional act itself. Id.
The Tenth Circuit has not directly addressed the “some connection” language of Ex
Parte Young, although several other circuits have. Defendants cite cases from the Third,
Fifth, Sixth, and Ninth Circuits in support of their motion. See 1st Westco Corp. v. School
Dist., 6 F.3d 108, 113 (3d Cir. 1993); Okpalobi v. Foster, 244 F.3d 405, 417 (5th Cir. 2001);
Children’s Healthcare Is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1415 (6th Cir. 1996);
Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992).
Although the dicta in these other courts of appeals’ cases suggests an expansive
reading of Ex Parte Young, the actual holdings are fairly narrow and appear inapposite to this
case. To the extent these cases purport to expand the holding of Ex Parte Young, the Court
finds that they are unpersuasive. The holdings merely reinforce the rather unremarkable rule
that you may not name the attorney general or governor as a party to challenge a statute
enforced exclusively by either (1) other state officials, or (2) private parties through a private
cause of action – or, put another way, when the state officials do not have any enforcement
connection to the statute. See e.g., Southern Pacific Transp. Co. v. Brown, 651 F.2d 613, 615
(6th Cir. 1980) (holding that under Oregon law, the district attorneys had autonomy from the
attorney general and thus, the attorney general’s power to advise and direct the district
attorneys was insufficient to create an enforcement connection); 1st Westco Corp., 6 F.3d at
113-14 (holding that the attorney general was not a proper party because he had no authority
to enforce a law requiring contractors to meet residency requirements before their
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construction specifications are approved and because the attorney general did not have the
duty to provide legal counsel to the school district with the power to enforce the subject law).
See also Summit Medical Assoc., P.C. v. Pryor, 180 F.3d 1326, 1341 (11th Cir. 1999)
(holding that the attorney general did not have any connection to a partial-birth abortion
statute that provided for private civil enforcement); accord Okpalobi, 244 F.3d at 422. In
each of these cases, then, the Fifth Circuit found the state officials’ general duty to uphold
the law or supervise those enforcing the law was irrelevant because the statute provided for
enforcement through other means. As the modified statute does not provide any means for
enforcement, but is directed to the state itself, its enforcement falls squarely on the shoulders
of these defendants.
Governor Henry has both the authority and the duty to enforce the statute. The
Oklahoma Constitution provides that the governor “shall cause the laws of the State to be
faithfully executed.” Okla. Const. art. VI § 8. According to the amended statute, the “state
[or] any of its agencies ... shall not recognize an adoption by” a same-gender couple. 10
Okla. Stat. § 7502-1.4 (emphasis added). Therefore, if Governor Henry faithfully executes
this Oklahoma law pursuant to his duty to do so, no state agency will recognize these
Plaintiffs as a family and these Plaintiffs could be deprived of all the legal rights and
obligations associated with that relationship. See Grimes v. City of Oklahoma City, 2002
OK 47, ¶ 11, 49 P.3d 719, 724 (noting that a statute that uses the term “‘[s]hall’ signifies a
mandatory directive or command”)
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As noted by Plaintiffs, the governor also has specific and special duties relevant to and
dependent upon the legal relationships between parents and their children, such as child support
enforcement in abandonment cases, and under the Uniform Interstate Family Support Act. See 21
Okla. Stat. § 853, et seq., 43 Okla. Stat. § 601, et seq.
The constitutional duty to faithfully execute Oklahoma’s laws, coupled with the
mandatory language of the amended statute, is sufficient for the Court to conclude that the
suit is being brought against Governor Henry as a state official, and not against the state
itself. See Harris, 264 F.3d at 1290 (holding that the governor’s “supreme executive power”
and duty to ensure the faithful execution of the law was sufficient authority to ensure
compliance with law and, thus, they could be enjoined under Ex Parte Young); see also
Robinson v. Kansas, 295 F.3d 1183, 1191-92 (10th Cir. 2002), cert. denied, 539 U.S. 926
(2003) (holding that the governor was a proper party to a suit to enjoin his enforcement of
the Kansas School District Finance and Quality Performance Act in violation of the
plaintiffs’ federal rights). The relevant and material fact simply is that Governor Henry, by
virtue of his office, has the authority to enforce the amended statute and it does not matter
that this authority arose from a general duty imposed on him through the Oklahoma
Constitution rather than the amended statute itself. See Ex Parte Young, 209 U.S. at 157.
Similarly, the attorney general has a duty to:
initiate or appear in any action in which the interests of the state or the people
of the state are at issue, or to appear at the request of the Governor, the
Legislature, or either branch thereof, and prosecute and defend ... any cause or
proceeding, civil or criminal, in which the state may be a party or interested.
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Edmondson issued Attorney General Opinion 04-8 on March 19, 2004.
74 Okla. Stat. § 18b(A)(3). The state has an interest in the welfare of its children and
defining and enforcing parents’ legal obligations accordingly. See, e.g., 10 Okla. Stat.
§ 7202 (declaring the state’s interests in and responsibility to children whose parents fail to
fulfill their obligations to provide proper care, supervision, and protection). In fact,
Oklahoma’s attorney general is charged with the specific duty of carrying out the Oklahoma
Children’s Code, an act purporting to “preserve, unify and strengthen ... family ties” by
providing “expeditious and timely judicial and agency procedures ... [to] protect the health,
safety and welfare of” allegedly deprived children. 10 Okla. Stat. §§ 7001-1.2 (B), 7002-3.1.
In the context of adoption, Oklahoma has declared a strong interest in ensuring that
children placed for adoption are raised in stable, loving homes. 10 Okla. Stat. § 7501-1.2(8).
Additionally, Oklahoma has expressed its interest in “[p]romot[ing] and strenthen[ing] the
integrity and finality of adoptions.” Id. at § 7501-1.2(9).
Finally, it appears that the state is interested in defining family relationships to
exclude units headed by same-sex couples. The Oklahoma legislature passed the amended
statute less than two months after Edmondson issued his Opinion concluding that the
Department of Health must issue birth certificates with the names of both parents,
when both parents are of the same gender. Because the state’s interests are numerous, the
Court concludes that Edmondson has a statutory duty to enforce the amended statute.
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Further, the fact that neither Henry nor Edmondson have threatened to enforce the
amended statute is irrelevant to the Eleventh Amendment inquiry. According to the Supreme
Court, the Ex Parte Young analysis is a “‘straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and seeks relief properly characterized
as prospective.’” Verizon Maryland, Inc. v. Public Serv. Comm’n, 535 U.S. 635, 645 (2002)
(citation omitted); Winnebago Tribe v. Stovall, 341 F.3d 1202, 1207 (10th Cir. 2003). As
this statement is quite clear, the Court declines to read into it any sort of timing requirement
or element mandating a threat of enforcement.
Of course, this does not mean that timing or the absence of enforcement is irrelevant
to this suit; in fact, the converse is true, as timing and the absence of enforcement is likely
to be highly relevant. See 17 Charles Alan Wright, et al., Federal Practice and Procedure
§ 4232 (2d ed. 1988) (stating that a plaintiff who has “brought his case within the Young
doctrine must still overcome the other statutory and court-made barriers” to equitable relief).
The problems that arise from an unripe controversy, however, are already adequately
addressed by the justiciability doctrines, most notably the Article III and prudential ripeness
requirements, and standing analysis. See Nova Health Systems. v. Gandy, ___ F.3d ___
(10th Cir. 2004) (discussing the constitutional standing requirements as including an actual
or imminent injury suffered by the plaintiff and caused by the named defendants); Nat’l
Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 846-47 (9th Cir. 2002) (declining to read a
“ripeness” or “imminence” requirement into Ex Parte Young). Thus, “[t]here is ... no need
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Nat’l Audubon Soc’y interprets prior Ninth Circuit law (and that of other circuits)
purporting to impose an imminence requirement as simply addressing the “question of whether a
named state official has direct authority and practical ability to enforce the challenged statute, rather
than the question of whether enforcement is imminent.” Nat’l Audubon Soc’y, 307 F.3d at 846.
Ultimately, the question for Eleventh Amendment purposes is “who” can be sued, not “when.” Id.
to strain [the] Ex Parte Young doctrine to serve that purpose.”
Nat’l Audubon Soc’y at 847.
Indeed, Defendants have expressly reserved their right to challenge Plaintiffs’ complaint on
the basis of the justiciability doctrines, including lack of ripeness and lack of standing (see
Defs.’ Br. 1, n.1). As those issues have not been briefed and are not currently before the
Court, the Court declines to speculate as to the potential impact Defendants’ lack of
enforcement will play in that context.
Because the Plaintiffs are seeking prospective relief against state officials for an
alleged violation of their federal rights, Defendants are not entitled to Eleventh Amendment
immunity. As immunity was the only ground challenged by Defendants, their Motion to
Dismiss (Dkt. No. 13) is DENIED.
IT IS SO ORDERED this 7th day of December, 2004.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
JAMES OBERGEFELL, et al.,
JOHN KASICH, et. al.,
Case No. 1:13-cv-501
Judge Timothy S. Black
TEMPORARY RESTRAINING ORDER
The Court todayhas granted permission to David Michener to join this lawsuit as an
Mr. Michener and his male partner, William Herbert Ives, have been together as a loving
and intimate couple for eighteen years and have adopted three children together. (Doc. 21 at 1).
On J uly 22, 2013, Mr. Michener and Mr. Ives were lawfully married in Delaware, which state
authorizes and recognizes same sexmarriages. (Id.) However, on August 27, 2013, Mr. Ives
died unexpectedly of natural causes at University Hospital in Cincinnati, Ohio. (Id. at 2). His
remains are currently at a funeral home in Cincinnati, and his cremation is scheduled for
tomorrow, September 4, 2013. (Id.) In order for the cremation to proceed, adeath certificate
must be issued. (Id.) Accordingly, Plaintiff Michener is seeking a death certificate that
accuratelyreflects Mr. Ives’s status as married and lists Mr. Michener as thesurviving spousein
order to bring closure to the family in a manner that respects their marriage and Mr. Ives’s wish
to be cremated. (Id.)
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Upon consideration of the motion of Mr. Michener for injunctive relief filed on
September 2, 2013, and in light of the Temporary Restraining Order that is presently pending in
this matter, this Court has found and concluded, for the specific reasons required under Federal
Rule of Civil Procedure 65(d), that Plaintiff Michener hasshown (1) a likelihood of success on
the merits on at least some of hisclaims, (2) that hewill suffer irreparable harm if an injunction
is not issued, and (3) that the balance of harms and the public interest weigh in favor of granting
the temporary restraining order as applied to David Michener.
Specifically, the Court finds, on thecurrent record, that Plaintiff Michener has
established a substantial likelihood of success on the merits of hisclaimthat Ohio Rev. Code §
3101.01(C) (3)&(4) and Art. XV, §11, Ohio Constitution, violate rights securedby the First and
Fourteenth Amendments to the United States Constitution in that same sex couples married in
jurisdictions where same sex marriage is valid who seek to have their out-of-state marriage
accepted as legal in Ohio are treated differently thanopposite sex couples who have been
married in states where their circumstances allow marriage in that state but not in Ohio (e.g.,
consanguinity or age). On this record, there is insufficient evidence of a legitimate state interest
to justify this singling out of same sex married couples given the severe and irreparable harm it
imposes on David Michener. See the Court’s Order Granting Plaintiffs’ Motion for a Temporary
Restraining Order of J uly 22, 2013 (Doc. 13), incorporated by reference here as if fully restated;
see also United States v. Windsor, __ U.S. __, 133 S.Ct. 2675 (2013); Romer v. Evans, 517 U.S.
THEREFORE, as to David Michener, it is hereby ORDERED that the motion (Doc. 21)
is GRANTED and Defendants J ohn Kasich, Mike DeWine, Camille J ones, and their officers,
agents, servants, employees, and attorneys, and those persons in active concert or participation
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with Defendants who receive actual notice of this Order, are TEMPORARILY RESTRAINED
from enforcing Ohio Rev. Code §3101.01(C )(3)&(4) and Art. XV, §11, Ohio Constitution; and,
further, the local Registrar of death certificates, including Defendant Dr. J ones and her agents,
are TEMPORARILY RESTRAINED from accepting a death certificate for William Herbert Ives
that does not record his status at the time of death as “married” and his “surviving spouse” as
This Temporary Restraining Order shall expire on September 17, 2013 at 5:00 p.m.,
unless extended by the parties and the Court.
Plaintiff Michener shall not be required to post abond.
IT IS SO ORDERED.
Date: 9/3/13 s/ Timothy S. Black
Timothy S. Black
United States District J udge
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