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IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

PAUL HARD, ) ) Plaintiff, ) ) v. ) ) ROBERT BENTLEY,in his official )

 

Civil Action No.: capacity as Governor of the State of ) 2:13-CV-922-WKW-SRW Alabama, et al., ) )

Defendant Pat Fancher’s

 Defendants. ) Motion for Summary Judgment )

Defendant’s Motion for Summary Judgment

 Defendant Pat Fancher, pursuant to Rule 56 of the Federal Rules of Civil Procedure, moves for a summary judgment in her favor on grounds that there is no genuine dispute of material fact and the Defendant is entitled to a judgment as a matter of law. In support of her motion, the Defendant joins with, incorporates, and relies on the memorandum of law filed by Alabama Governor Robert Bentley and Alabama Attorney General Luther Strange. Defendant Fancher, by and through her legal counsel, has also  prepared her own memorandum of law stating arguments she believes are indispensable

to this Court’s consideration of this matter 

.

Defendant Pat Fancher’s memorandum of

law in support of this motion for Summary Judgment is filed contemporaneously herewith.

 Narrative Statement of Undisputed Facts

1.

 

Pat Fancher is the Mother of the deceased, David Fancher.

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David Fancher died on August 1, 2011 and a wrongful death action was brought against certain parties by the administrator of his estate, Mr. Rick Lohr. 3.

 

That wrongful death action has been resolved and funds from that action are now  being held in trust

 pending the outcome of this Court’s decision in this matter 

. 4.

 

Under current Alabama law Pat Fancher is classified as the next of kin and is due to receive those funds held in trust. 5.

 

Plaintiff Paul Hard claims he is the spouse of the deceased and has asked this Court to

strike down Alabama’s laws regarding marriage and

grant an injunction  preventing Pat Fancher from receiving more than half of the proceeds from the wrongful death action brought on behalf of David Fan

cher’s estate

.

Pat Fancher’s position an

d expressed legal interest under Current Alabama Law.

 Neither the institution of marriage nor acts of homosexuality are recent inventions. However, the notion of redefining marriage as

anything 

 other than the union of man and woman are unprecedented in all of human history. Acts of homosexuality have been viewed negatively by many cultures in human history and embraced by others,  but no known civilization has redefined marriage to include members of the same sex. This concept is unique to the generation of mankind that now inhabits our world. Ms. Pat Fancher believes that God defined, designed, and destined the family as the basic building block of society, a society on which all systems of order are based. As

such she has strongly held personal beliefs on the issue of God’s design for marriage and

same sex marriage. Ms. Pat Fancher

 believes that this nation’s laws should reflect the

moral basis upon which the nation was founded. Furthermore, she believes that the

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3 ancient roots of the common law, the pronouncements of the legal philosophers from

whom this nation’s Founders derived their view of law, the views of the Founders

themselves, and the views of the American people as a whole from the beginning of American history, at least until very recently, have held that homosexual conduct is immoral and should not be sanctioned by giving it the official state sanction of marriage. Pat Fancher is the mother of the deceased, David Fancher. Under current Alabama law regarding intestate succession Ms. Fancher is the next of kin and mother to David Fancher. Plaintiff Hard requests in the Prayer for Relief of his Complaint that this

Court issue an injunction “without regard” to the state of Alabama’s

Marriage Protection

Act or the state of Alabama’s Constitutional Provisions regarding the sanctity of

marriage. This requested injunction asks this Court to prevent the Executor of David

Fancher’s estate from distributing the potential wrongful death proc

eeds to David

Fancher’s mother, Pat Fancher, and give over one half of those proceeds to Paul Hard who alleges a claim to a “spousal share.” This claim is contrary to Alabama state law.

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It is Defendant Fancher’s opinion that Plaintiff’s

requested injunction, if granted, will violate the millennia-old institution of marriage as ordained by God. That violation will result in an immediate and irreparable injury to Ms. Fancher. Ms. Fancher is concerned with the defense of the Alabama state constitutional provision and state statute. Furthermore, Ms. Fancher is deeply disturbed that the death of her son David, is

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Under Alabama’s wrongful death statute the administrator must distribute any damages recovered pursuant to Alabama’s laws of intestate succession, even if the decedent died with a will. See

Ala. Code § 6-5-410(c); see also Steele v. Steele, 623 So. 2d 1140

, 1141 (Ala. 1993) (“The damages from a wrongful death award pass as though the decedent died without a will”).

 According to Alabama law regarding intestate succession Ms. Fancher is the next of kin and mother to David Fancher, now deceased. Application of Alabama Code §43-8-42 indicates Ms. Fancher is due to receive all damages awarded in the

wrongful death action pertaining to her son’s death. See Ala. Code §43

-8-

42 “

the entire intestate estate if

there is no surviving spouse, passes as follows…to his parent….”

 

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