IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION Colleen Therese Condon and Anne )  Nichols Bleckley, ) Civil Action No. 2:14-cv-04010-RMG ) Plaintiffs, ) ) v. ) ) MEMORANDUM OF GOVERNOR  Nimrata (“Nikki”) Randhawa Haley, in her ) AND ATTORNEY GENERAL official capacity as Governor of South ) IN OPPOSITION TO MOTION FOR Carolina; Alan M. Wilson, in his official ) PRELIMINARY INJUNCTION AND Capacity as Attorney General; and Irvin ) ALTERNATIVE MOTION / REQUEST G. Condon in his official capacity as ) FOR STAY Probate Judge of Charleston County, ) ) Defendants. )  __________________________________ ) Governor Nikki Haley and Attorney General Alan Wilson (Defendants) oppose Plaintiffs’ Motion for Preliminary Injunction for the reasons discussed below. This suit is barred and should not proceed due to multiple grounds not considered by the Fourth Circuit Court of Appeals’ same-sex marriage panel decision.

 Bostic v. Schaefer 

, 760 F.3d 352 (4th Cir. 2014). Those grounds include the

 Rooker-Feldman

doctrine, the failure of the 2-1

 Bostic

 panel decision to recognize and apply prior, controlling precedent of the Fourth Circuit, Federalism, the Eleventh Amendment, lack of standing to sue the Governor and the Attorney General as well as other doctrines warranting dismissal including abstention and comity to earlier filed federal proceedings. Plaintiffs are of the same-sex and seek marriage in this state. They object to a State Supreme Court ruling, discussed

infra,

that directed the Defendant, Judge Condon, not to issue them a marriage license. State law does not allow or recognize same-sex marriages, and

2:14-cv-04010-RMG Date Filed 11/03/14 Entry Number 29 Page 1 of 57

 

Plaintiffs challenge those provisions. S.C. Code Ann §§20-1-10 and 20-1-15; S.C. Const art. XVII, §15 (Attachment A to this Memorandum). This case not only presents the question of whether those laws are valid, but also whether this suit should be dismissed due to the above defenses. Although those defenses are dispositive, to the extent necessary, these Defendants argue against the precedent of

 Bostic

on the merits of Plaintiffs’ challenge to South Carolina law. Our State’s laws are valid under the equal protection and due process clauses. Among other errors, the

 Bostic

 panel has misapplied the

 Loving v. Virginia,

388 U.S. 1 (1967) to alter an element historically inherent in marriage, a union of a man and a woman. 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 in

 Bostic

has overturned Virginia’s same-sex marriage ban, that Panel did not consider defenses that are dispositive of the instant case, and the en banc Court of Appeals has not ruled on those defenses or the merits of the constitutional challenges. The defenses named above and discussed,

infra

, take this case outside of the

 Bostic

 precedent and warrant judgment for the Defendants.

I JURISDICTIONAL AND OTHER BARS TO THIS SUIT

The following grounds deprive this Court of jurisdiction or otherwise warrant dismissal of this suit or deference to other pending Federal litigation.

2

2:14-cv-04010-RMG Date Filed 11/03/14 Entry Number 29 Page 2 of 57

 

A The

 Rooker-Feldman

 Doctrine Is A Jurisdictional Bar To This Action

This Court lacks jurisdiction to proceed in this case because the

 Rooker 

 – 

Feldman

 doctrine bars review of the following Order of the South Carolina Supreme Court in

State ex rel Wilson v. Condon,

 No. 2014-002121, 2014 WL 5038396, at *1-2 (S.C. Oct. 9, 2014): Currently, the issue of whether Article XVII, Section 15 of the South Carolina Constitution . . . and Sections 20–1–10 through –15, violate the United States Constitution is actively under consideration by Judge Childs in the

 Bradacs

case [.1. Katherine Bradacs and Tracie Goodwin v Haley, et al, Civil Action No. 3:13-cv- 02351-JFA] . . . Respondent and all other probate judges are hereby directed not to issue marriage licenses to same-sex couples pending a decision by the Federal District Court in

 Bradacs

. (emphasis added) . Plaintiffs place this ruling at issue in their complaint in that allege that “Defendant Judge Condon declined to issue [them a marriage] license for the sole reason that the proceedings instituted by Defendant Wilson resulted in an order from the South Carolina Supreme Court forbidding the issuance of marriage licenses to same-sex couples before an order requiring such issuance had  been entered by the United States District Court for the District of South Carolina.” Complaint,  ¶ 23. Their Prayer asks that Judge Condon be enjoined in this action from enforcement of any  provisions of South Carolina law that exclude same-sex couples from marriage. Therefore, they request review and relief squarely in conflict with the Supreme Court’s order.

0F

1

 “The

 Rooker 

 – 

Feldman

 doctrine . . . prohibits the lower federal courts from reviewing or rejecting state court judgments [and] serves as a jurisdictional bar to federal court review of each

1

 

Defendant Judge Condon, on Friday, asked the Supreme Court to amend its Order to apply to any other same-sex marriage case pending before the Federal District Court of South Carolina. At least until the Supreme Court changes its

Wilson v. Condon

order, this Court lacks authority to proceed in the instant case under

 Rooker-Feldman

and should abstain, as discussed

infra.

 

3

2:14-cv-04010-RMG Date Filed 11/03/14 Entry Number 29 Page 3 of 57