4:14-cv-04081 #47

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 1 of 28 PageID #: 710
UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
Court File No. 14CV4081-KES

Case Type: Civil Rights / 1983
Jennie and Nancy Rosenbrahn;
Jeremy Coller and Clay Schweitzer;
Lynn and Monica Serling-Swank;
Krystal Cosby and Kaitlynn Hoerner;
Barbara and Ashley Wright; and
Greg Kniffen and Mark Church,
Plaintiffs,
vs.
Dennis Daugaard, in his official capacity as
Governor;
Marty Jackley, in his official capacity as
Attorney General;
Doneen Hollingsworth, in her official
capacity as Secretary of Health;
Trevor Jones, in his official capacity as
Secretary of Public Safety;
Carol Sherman, in her official capacity as
Brown County Register of Deeds;
Defendants.
PLAINTIFFS CONSOLIDATED
REPLY/RESPONSE MEMO
SUPPORTING PLAINTIFFS
MOTION FOR SUMMARY
JUDGMENT AND OPPOSING
DEFENDANTS MOTION FOR
SUMMARY JUDGMENT
TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 1
I. STATE LAWS REGULATING MARRIAGE MUST COMPLY WITH FEDERAL
CONSTITUTIONAL PROTECTIONS. ..................................................................................... 1
A. The Tenth Amendment Does Not Legitimate The States Discriminatory Marriage
Scheme ..................................................................................................................................... 1
B. The Domestic Relations Exception Does Not Deprive This Court Of Jurisdiction .......... 3
II. THE CONSTITUTIONAL RIGHT TO MARRY INCLUDES SAME-SEX COUPLES ... 4
A. The Right To Marry Belongs To The Individual .............................................................. 4
B. Windsor Supports Plaintiffs Due Process Argument ....................................................... 5
C. False Slippery Slopes Cannot Deprive Individuals of Marital Rights .............................. 6
D. Loving Supports Plaintiffs Due Process Argument ......................................................... 7
III. SOUTH DAKOTAS MARRIAGE BANS INTERFERE WITH PLAINTIFFS
FUNDAMENTAL RIGHT TO REMAIN MARRIED ............................................................... 7
IV. SOUTH DAKOTAS MARRIAGE LAWS CANNOT SURVIVE ANY LEVEL OF
JUDICIAL SCRUTINY .............................................................................................................. 8
A. South Dakotas Marriage Bans And Anti-Recognition Laws Require Strict Scrutiny
Because They Infringe Upon Plaintiffs Fundamental Rights ................................................. 8
B. Windsor Supersedes Bruning And Establishes That South Dakotas Marriage Bans And
Anti-Recognition Laws Must Be Subject To Heightened Scrutiny ......................................... 8
C. South Dakotas Marriage Bans and Anti-Recognition Laws Require Heightened
Scrutiny Because They Classify On The Basis of Sex/Gender .............................................. 12
D. A Finding Of Animus Is Sufficient, But Not Necessary, To Find South Dakotas
Marriage Bans And Anti-Recognition Laws Unconstitutional .............................................. 15
E. South Dakotas Marriage Bans And Anti-Recognition Laws Cannot Survive Traditional
Rational Basis Review ........................................................................................................... 18
1. Promoting Heterosexual Procreation ........................................................................ 19
2. Proceeding With Caution And Saving Public Funds ................................................ 20
3. Slippery Slope ........................................................................................................... 21
4. Deference To The Political Process .......................................................................... 22
V. NO STAY SHOULD BE ENTERED ................................................................................ 23
CONCLUSION ............................................................................................................................. 23
ii
TABLE OF AUTHORITIES
Cases
Baker v. Nelson, 409 U.S. 810 (1972) ............................................................................................ 2
Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) ........................................................................ 3, 21
Bostic v. Rainey, 970 F. Supp. 2d 456, 474-75 (E.D. Va. 2014)...20
Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) ........................................ 17
Campaign for S. Equal. v. Bryant, No. 14-CV-818, 2014 WL 6680570 (S.D. Miss. Nov. 25,
2014).......................................................................................................................................... 22
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ........................................ 15, 21
Citiznes for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) .............................. passim
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) ............................................................... 4
Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998) ...................................................................... 5
Condon v. Haley, No. 14-4010, 2014 WL 5897175 (D.S.C. Nov. 12, 2014)................................. 4
Craig v. Boren, 429 U.S. 190 (1976) ............................................................................................ 10
De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex 2014) ............................................................. 7
DeBoer v. Snyder, ___ F.3d ___, 2014 WL 5748990 (6th Cir. Nov. 6, 2014)................... 8, 19, 21
F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307 (1993) ................................................................ 10
Garcia v. Garcia, 25 S.D. 645, 127 N.W. 586 (1910) .................................................................. 17
Ginters v. Frazier, 614 F. 3d 822 (8th Cir. 2010) ......................................................................... 11
Griswold v. Connecticut, 381 U.S. 479 (1965)................................................................... 4, 17, 19
Hollingsworth v. Perry, No. 12144, 2013 WL 1212745 (U.S. Mar. 26, 2013) .......................... 14
Jernigan v. Crane, No. 13-CV-00410, 2014 WL 6685391 (E.D. Ark. Nov. 25, 2014) ......... passim
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014).............................................................. 5,7, 22
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) ........................................... 2, 17, 20, 21
Latta v. Otter, No. 12-17668, 2014 WL 4977682 (9th Cir. Oct. 7, 2014) .................................. 7, 9
Lawrence v. Texas, 539 U.S. 558 (2003) .............................................................................. passim
Lawson v. Kelly, No. 14-0622, 2014 WL 5810215 (W.D. Mo. Nov. 7, 2014) ........................ 8, 14
Loving v. Virginia, 388 U.S. 1 (1967) ................................................................................... passim
Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987) ....................................................................... 11
!
iii
Plyler v. Doe, 457 U.S. 202 (1982) .............................................................................................. 21

Romer v. Evans, 517 U.S. 620 (1996) ................................................................................... passim
Rosenbrahn v. Daugaard, No. 14-CV-4081, 2014 WL 6386903 (D.S.D. Nov. 14, 2014) ............. 2
SmithKline Beecham Corp. v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014) ....................... 9, 10, 11
Sosna v. Iowa, 419 U.S. 393 (1975) ............................................................................................... 2
T.L. ex rel. Ingram v. United States, 443 F.3d 956 (8th Cir. 2006).............................................. 11
Turner v. Safley, 482 U.S. 78 (1987)........................................................................................ 4, 19
U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) ......................................................... 15
United States v. Windsor, 133 S. Ct. 2675 (2013)................................................................. passim
United States v. Virginia, 518 U.S. 515 (1996) ............................................................................ 12
Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252 (1977) ......................... 17
Vill. Of Willowbrook v. Olech, 528 U.S. 562 (2000) .................................................................. 18
W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)................................................................... 3
Walker v. Wolf, 135 S. Ct. 316 (2014) ..................................................................................... 3, 20
Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir. 2008) ......................................................... 9, 11
Young v. Hayes, 218 F.3d 850 (8th Cir. 2000)....................................................................... 11, 12
Zablocki v. Redhail, 434 U.S. 374 (1978) .............................................................................. 4, 7, 8
iv
INTRODUCTION
To date, over 46 courts have recognized that United States v. Windsor, 133 S. Ct. 2675
(2013) requires invalidation of State marriage bans and anti-recognition laws that target samesex couples and their families. As Defendants acknowledge by bringing their own motion for
summary judgment, there are no factual disputes to be resolved by this Courtonly the purely
legal issue of whether denying same-sex couples the right to marry violates the U.S.
Constitution.
Defendants argue that principles of federalism legitimate the challenged laws and deprive
this Court of jurisdiction. But, as the Supreme Court has held, state laws regulating marriage
must comport with the constitutional guarantees of due process and equal protection.
Defendants suggested rationales for the laws cannot survive rational basis reviewmuch less
survive the requisite heightened levels of judicial scrutiny. This Court should therefore conclude
that South Dakotas laws violate the Fourteenth Amendment and should grant Plaintiffs Motion
for Summary Judgment.
ARGUMENT
I.
STATE LAWS REGULATING MARRIAGE MUST COMPLY WITH

FEDERAL CONSTITUTIONAL PROTECTIONS.
Defendants argue that the Tenth Amendment and the domestic relations exception
legitimize the challenged laws and deprive this Court of jurisdiction. See Doc. 41 at 15, et
passim. (The proper forum for resolution of these constitutional issues is the South Dakota
Supreme Court.)
A.
The Tenth Amendment Does

Discriminatory Marriage Scheme
Not
Legitimate
The
States
Defendants argument regarding the Tenth Amendment ignores: 1) the Supreme Courts
!
pronouncement in Windsor and holding in numerous prior cases that State marriage laws must
comply with Constitutional protections1; 2) the Courts express statement that its holding in
Windsor was not based on federalism2; and 3) this Courts previous rejection of Defendants
argument that it is deprived of jurisdiction by Baker v. Nelson, 409 U.S. 810 (1972).3
Federalism does not empower States to violate the individual rights secured by the
Fourteenth Amendment. See U.S. Const., Amend. XIV (nor shall any State deprive any person
of life, liberty, or property, without due process of law.) The virtually exclusive province of
the states to regulate domestic affairs is always subject to those guarantees. Windsor, 133 S.
Ct. 2675 at 2680 (quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975) and citing Loving v.
Virginia, 388 U.S. 1 (1967), as an example of States marital regulation gone constitutionally
awry). For this reason, the Supreme Court has not hesitated to invalidate state laws pertaining to
marriage whenever such a law intrudes on an individual's protected realm of liberty. Kitchen v.
Herbert, 961 F. Supp. 2d 1181, 1198 (D. Utah 2013) aff'd, 755 F.3d 1193 (10th Cir. 2014) cert.
denied, 135 S. Ct. 265 (2014); Jernigan v. Crane, No. 4:13-CV-00410 KGB, 2014 WL 6685391,
at *19 (E.D. Ark. Nov. 25, 2014) (Further, our federalist structure is designed to secure to
citizens the liberties that derive from the diffusion of sovereign power rather than to limit
fundamental freedoms. (internal quotations and alternations omitted.))
Moreover, numerous courts addressing State marriage bans like those challenged here
have reaffirmed the unremarkable proposition that State prerogatives are subordinate to
constitutional protections. As the Seventh Circuit recently held in striking down state marriage
1
133 S. Ct. 2675 at 2680, 2692 (holding that State marriage regulation is subject to constitutional guarantees).
133 S. Ct. 2675 at 2692 (it is unnecessary to decide whether this federal intrusion on state power is a violation of
the Constitution because it disrupts the federal balance. The State's power in defining the marital relation is of
central relevance in this case quite apart from principles of federalism.)
3
Compare Doc. 41 at 14 (citing Baker to argue this Court lacks jurisdiction) with Rosenbrahn v. Daugaard, No. 14CV-4081, 2014 WL 6386903, *12 (D.S.D. Nov. 14, 2014) (Baker is no longer binding authority.)
2
bans in Indiana and Wisconsin, that limitation is definitional of our constitutional democracy:
Minorities trampled on by the democratic process have recourse to the courts; the recourse is
called constitutional law. Baskin v. Bogan, 766 F.3d 648, 671 (7th Cir. 2014) cert. denied, 135
S. Ct. 316 (2014) and cert. denied sub nom. Walker v. Wolf, 135 S. Ct. 316 (2014).
Defendants contention that a 52% majority of South Dakota voters and their elected
representatives enacted the statutory and constitutional bans at question in this litigation falters
for the same reasons. See Doc. 41 at 9, 47. Ones right to life, liberty, and property, to free
speech, a free press, freedom of worship and assembly, and other fundamental rights may not be
submitted to vote; they depend on the outcome of no elections. W. Va. Bd. of Educ. v. Barnette,
319 U.S. 624, 638 (1943).
B.
The Domestic Relations Exception Does Not Deprive This Court Of

Jurisdiction
Defendants attempted reliance on the domestic relations exception to federal questions is

also unavailing. As recently explained by the District of South Carolina (and previously, the
Fourth Circuit Court of Appeals) while ruling in favor of marriage equality on summary
judgment:
Defendant Wilson argues that the domestic relations exception deprives
federal courts of jurisdiction over this case, and this Court is mandated to
abstain from addressing Plaintiff's federal constitutional right to marry
their same sex partner. [. . . ] The Fourth Circuit carefully analyzed the
competing constitutional principles of state control of marital relations and
the federal protection under the Fourteenth Amendment of the
fundamental right of liberty, including the intensely personal choice of
whom to marry. Citing to Loving and Windsor, the Bostic Court
concluded that states must exercise their authority over marital relations
without trampling constitutional guarantees of same sex couples and
rejected Virginia's claim that principles of federalism required a different
outcome. It held that while states have the authority to regulate domestic
relations and marriage, [s]tate laws defining and regulating marriage, of
course, must respect the constitutional rights of persons.
Condon v. Haley, No. CIV.A. 2:14-4010-RMG, 2014 WL 5897175, at *8 (D.S.C. Nov. 12,
2014) (internal citations omitted).
Whatever authority the federal system confers on States, and whatever authority the State
has enacted via popular vote, they must be exercised within constitutional limits imposed by the
Fourteenth Amendment.
II.
THE CONSTITUTIONAL RIGHT TO MARRY INCLUDES SAME-SEX

COUPLES
A.
The Right To Marry Belongs To The Individual
As Plaintiffs demonstrated in their opening memorandum, the right to marry is a

fundamental right. Doc. 23 at 814. Further, it is a right belonging to the individual that cannot
be denied because of the individuals sexual orientation. Id. Plaintiffs seek access to the same
fundamental right that is available to others under South Dakota law, not, as the Defendants
argue, a new right only for gays and lesbian persons. See Doc. 41 at 1827.
In addition to mischaracterizing Plaintiffs claim, Defendants ignore the common thread
in the Supreme Courts marriage jurisprudence, which contains a repeated emphasis that the right
to marry the person of ones choice is a fundamental right belonging to the individual. See
Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (the right to marry is of fundamental importance
for all individuals); Loving, 388 U.S. at 12 (The freedom to marry has long been recognized as
one of the vital personal rights essential to the orderly pursuit of happiness by free men.)4
See also: Turner v. Safley, 482 U.S. 78, 95 (1987) ([T]he decision to marry is a fundamental right, and marriage
is an expression[] of emotional support and public commitment.); Cleveland Bd. of Educ. v. LaFleur, 414 U.S.
632, 639-40 (1974) (This Court has long recognized that freedom of personal choice in matters of marriage and
family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.); Griswold v.
Connecticut, 381 U.S. 479, 486 (1965) (Marriage is a coming together for better or for worse, hopefully enduring,
and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a
purpose as any involved in our prior decisions.).
These cases underscore that the drafters of the Fifth and Fourteenth
Amendments knew times can blind us to certain truths and later
generations can see that laws once thought necessary and proper in fact
serve only to oppress. As the Constitution endures, persons in every
generation can invoke its principles in their own search for greater
freedom. Accordingly, this Court finds that the [Plaintiffs] have
adequately described their asserted right to marry. Directed by Supreme
Court and Eighth Circuit precedents, this Court concludes that the right to
marry is a fundamental right.
Jernigan, 2014 WL 6685391, at *17 (internal citations and quotations omitted).
B.
Windsor Supports Plaintiffs Due Process Argument
Defendants also misconstrue Windsor, stating, [i]ndeed, the Supreme Court has
specifically identified same-sex marriage as new doc. 41 at 21, and arguing that Windsor
rejects Plaintiffs due process analysis. According to Defendants: The Windsor Court also
specifically stated that the fundamental nature of marriage, in fact, was its heterosexual nature:
the limitation of lawful marriage to heterosexual couples . . . for centuries had been deemed
both necessary and fundamental. Doc. 41 at 26 (quoting Windsor, 133 S. Ct. at 2689). The
complete sentence from which Defendants extract their quote reads: The limitation of lawful
marriage to heterosexual couples, which for centuries had been deemed both necessary and
fundamental, came to be seen in New York and certain other States as an unjust exclusion.
Windsor, 133 S. Ct. at 2689 (emphasis added). As the Tenth Circuit aptly noted, the question of
whether same-sex couples have the right to marry was not even before the Court5.
As the Supreme Court has made clear, history and tradition are the starting point but not
in all cases the ending point of the substantive due process inquiry, Lawrence v. Texas, 539
U.S. 558, 572 (2003) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 857 (1998)), and
times can blind us to certain truths and later generations can see that laws once thought
!Kitchen v. Herbert, 755 F.3d 1193, 1206 (10th Cir. 2014) cert. denied, 135 S. Ct. 265 (2014)!
necessary and proper in fact serve only to oppress. Id. at 579.

Like the federal Defense of Marriage Act, South Dakotas bans burden the lives of samesex couples by reason of government decree, in visible and public ways . . . from the mundane
to the profound, and make it even more difficult for the children to understand the integrity
and closeness of their own family and its concord with other families in their community and in
their daily lives. Windsor, 133 S. Ct. at 2694. The bans also bring [. . . ] financial harm to
children of same-sex couples, id. at 2695, by denying their families a multitude of benefits that
the State and federal governments offer to spouses and their children.
As stated in the Complaint and in declarations supporting Plaintiffs motion for summary
judgment, Plaintiffs seek marriage for the same reasons different-sex couples seek it, including
the stability and protection that it will bring to their children. They want their children and
grandchildren to know that their family has the same status and recognition that other families
enjoy. Two of the Plaintiff couples are currently raising children, as are many other same-sex
couples in South Dakota. Some of the Plaintiff couples, including the Rosenbrahns, have
grandchildren.
C.
False Slippery Slopes Cannot Deprive Individuals of Marital Rights
Defendants argue that if the Rosenbrahns and other same-sex couples are permitted to
marry, then States must permit incestuous and polygamous marriages as well. See Doc. 41 at:
19, 22, 45. The Supreme Court soundly rejected similar arguments raised by States in defense of
laws barring marriage by interracial couples and laws criminalizing same-sex intimacy; this
Court should do so here as well. See: Loving, 388 U.S. 1; Lawrence, 539 U.S. 558.
As the Ninth Circuit recently explained in response to the same argument:
Although such claims are not before us, it is not difficult to envision that
states could proffer substantially more compelling justifications for such
!
laws than have been put forward in support of the same-sex marriage bans
at issue here.
Latta v. Otter, No. 12-17668, 2014 WL 4977682, at *29 (9th Cir. Oct. 7, 2014).
D.
Loving Supports Plaintiffs Due Process Argument
Defendants further argue, both in their memorandum and at oral arguments on their
motion to dismiss, that Plaintiffs citation to Loving v. Virginia, 388 U.S. 1 (1967), is misplaced
because the decision did not address or concern the fundamental right to marriage. Doc. 41 at
23. But, the Supreme Court itself has explicitly rejected this notion. See Zablocki, 434 U.S. at
384 (Although Loving arose in the context of racial discrimination, prior and subsequent
decisions of this Court confirm that the right to marry is of fundamental importance for all
individuals.) (emphasis added). See also: De Leon v. Perry, 975 F. Supp. 2d 632, 658659
(W.D. Tex 2014) (Instead of declaring a new right to interracial marriage, the Court [in Loving]
held that individuals could not be restricted from exercising their existing right to marry on
account of their chosen partner. That is, an interracial marriage was considered to be a subset of
marriage, in the same way that same-sex marriage is included within the fundamental right to
marry.)
III.
SOUTH DAKOTAS MARRIAGE BANS INTERFERE WITH

PLAINTIFFS FUNDAMENTAL RIGHT TO REMAIN MARRIED
Defendants do not appear to address Plaintiffs argument that South Dakotas antirecognition laws deprive the married Plaintiffs of their fundamental right to remain married, a
right articulated by the Supreme Court in Windsor and previous cases, e.g., Griswold v.
Connecticut, 381 U.S. 479, 486 (1965). See Doc. 23 at 4042. See also Kitchen v. Herbert, 755
F.3d 1193, 1213 (10th Cir. 2014) cert. denied, 135 S. Ct. 265 (2014) (In light of Windsor, we
agree with the multiple district courts that have held that the fundamental right to marry
necessarily includes the right to remain married.)

IV.
SOUTH DAKOTAS MARRIAGE LAWS CANNOT SURVIVE ANY

LEVEL OF JUDICIAL SCRUTINY
As Plaintiffs explained in their opening memorandum, heightened scrutiny is required for

the due process and equal protection analyses in this case, both because the law impinges a
fundamental right and because it classifies on the basis of sex and sexual orientation. Doc. 23 at
817.
A.
South Dakotas Marriage Bans And Anti-Recognition Laws Require

Strict Scrutiny Because They Infringe Upon Plaintiffs Fundamental
Rights
Because South Dakota infringes on Plaintiffs fundamental rights to marry and to remain
married, the marriage bans and anti-recognition laws should be reviewed with strict scrutiny.
This is the type of restriction condemned by Zablocki because it
significantly interferes with decisions to enter into the marital relationship.
The prohibition must be examined with strict scrutiny, and viewed in that
light the restriction fails to satisfy the Due Process Clause's dictates.
Lawson v. Kelly, No. 14-0622-CV-W-ODS, 2014 WL 5810215, at *7 (W.D. Mo. Nov. 7, 2014);
see also: Jernigan, 2014 WL 6685391 at *17 (Because the Arkansas marriage laws restrict the
[Plaintiffs] fundamental right to marry, these laws are subject to strict scrutiny.)
B.
Windsor Supersedes Bruning And Establishes That South Dakotas

Marriage Bans And Anti-Recognition Laws Must Be Subject To
Heightened Scrutiny
The Supreme Court has applied heightened scrutiny in its equal protection cases
addressing classifications based on sexual orientation, including Windsor. Defendants rely on 1)
pre-Windsor precedent (including Bruning), 2) dissenting opinions in Windsor, and 3) the Sixth
Circuits recent outlier opinion6 to argue that Windsor applied the rational-basis test to DOMA.
Doc. 41 at 3134. Defendants argument cannot be reconciled with the Supreme Courts opinion
in Windsor, which expressly held that DOMAs discrimination against same-sex couples
required careful consideration. Windsor, 133 S. Ct. at 2693.
As the Defendants point out in their brief, in 2006, the Eighth Circuit acknowledged that,
in order to determine the appropriate level of scrutiny for classifications based on sexual
orientation, the most relevant precedents are murky. Doc. 41 at 31 (citing Bruning, 455 F.3d
at 86566) (emphasis added). After Windsor, however, it is no longer murky.
For example, in 2008, the Ninth Circuit reached a similar conclusion to the Bruning
court. See Witt v. Dep't of Air Force, 527 F.3d 806, 821 (9th Cir. 2008). That court concluded
that barring further pronouncement by the Supreme Court, it would apply rational basis to equal
protection claims involving classifications based on sexual orientation. Id. Then, earlier this year,
the Ninth Circuit recognized in SmithKline Beecham Corp. v. Abbott Labs that Windsor clearly
changed the landscape, writing, [t]hat landmark case was decided just last term and is
dispositive of the question of the appropriate level of scrutiny in this case, 740 F.3d 471, 480
(9th Cir. 2014), and, [i]n its words and its deed, Windsor established a level of scrutiny for
classifications based on sexual orientation that is unquestionably higher than rational basis
review. In other words, Windsor requires that heightened scrutiny be applied to equal protection
claims involving sexual orientation. Id. at 481. The Ninth Circuit then went on to strike down
marriage bans and anti-recognition laws using the same heightened scrutiny applied in Windsor.
Latta, 2014 WL 4977682.
As the Ninth Circuit correctly held, the Supreme Courts analysis in Windsor compels the
conclusion that the Supreme Court applied a heightened form of scrutiny. The most basic
6
DeBoer v. Snyder, ___ F.3d ___, 2014 WL 5748990 (6th Cir. Nov. 6, 2014).
difference between the rational basis test and any form of heightened scrutiny is which party in
the constitutional litigation carries the burden of persuasion regarding the constitutionality of the
law.7 Under the rational basis test, the plaintiffs challenging a law have the burden of showing
that the laws classification does not serve any legitimate governmental interest. Under that test,
courts consider post-hoc rationalizations and hypothetical justifications. Heightened scrutiny, on
the other hand, puts the burden on the government. As explained in Plaintiffs opening
memorandum and by the court in SmithKline, the Supreme Court in Windsor clearly applied an
elevated level of scrutiny, holding that no justifications were sufficient to overcome the harms
imposed by DOMA. Windsor, 133 S. Ct. at 2696. Defendants repeated citations to the
dissenting opinions of Justice Scalia and Justice Alito (describing the majority opinion as
applying the rational basis test) improperly disregard what the Windsor majority actually did, as
well as the Courts express statement that such laws require careful consideration. See
SmithKline, 740 F.3d at 480 (noting the importance of considering what the Court actually
did in determining the level of scrutiny applied in Windsor.) (internal citations and quotations
omitted).
The Eastern District of Arkansas recently reached a contrary result, concluding that
Bruning: 1) prevented the district court from finding sexual orientation to be a suspect class, 2)
required the court to apply rational basis test for laws classifying on the basis of sexual
orientation, and 3) ultimately required dismissal of same-sex couples equal protection claim
based on sexual orientation.
In Bruning, the Eighth Circuit held that the Supreme Court has never
ruled that sexual orientation is a suspect classification for equal protection
7
Compare F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 314-15 (1993) with Craig v. Boren, 429 U.S. 190, 197-99
(1976).
!
!
10
purposes and then applied rational-basis review. Bruning, 455 F.3d at

86667; see Rosenbrahn, 2014 WL 6386903, at *11; Lawson, 2014 WL
5810215, at *5. Thus, the Court must find sexual orientation not to be a
suspect class and apply rational-basis review to this claim. The Eighth
Circuit also expressed clearly its belief that laws prohibiting same-sex
marriage would pass rational-basis review based on many of the same
rationales advocated by Separate Defendants here. Bruning, 455 F.3d at
86768; see Lawson, 2014 WL 5810215, at *5. Accordingly, this Court is
bound to grant Separate Defendants' motion to dismiss and deny plaintiffs'
motion for summary judgment as to plaintiffs' claim of discrimination on
the basis of sexual orientation.
Jernigan, 2014 WL 6685391 at *23.
While the Eastern District of Arkansas noted that in 2006 the Eighth Circuit applied
rational basis review due to uncertainty with regard to Supreme Court precedent on sexual
orientation classification (much like the Ninth Circuit did in 2008 in Witt), without explanation,
the court then failed to consider the landmark intervening Windsor decision (as the Ninth Circuit
did this year in Smithkline). As a result, the Eastern District of Arkansas failed to analyze the
impact of Windsors application of careful consideration on this issue.
It is well settled in this circuit that when the Supreme Court rules in a manner that
contravenes the Eighth Circuits analysis in a prior case, both Eighth Circuit panels and district
courts must follow the intervening Supreme Court decision. For example, in Young v. Hayes,
218 F.3d 850 (8th Cir. 2000), the Eighth Circuit rebuked a district court for failing to take
intervening Supreme Court precedent into account.
What about the merits? On this point, the District Court simply dismissed
the complaint for failure to state a claim, holding that there is no right
whatever to due process of law in connection with a clemency proceeding.
This view is inconsistent with the position quite recently taken by a
majority of the Supreme Court.
11
Young v. Hayes, 218 F.3d 850, 852 (8th Cir. 2000).8

In light of the Eighth Circuits statement in Bruning that, at that time, the relevant
precedents [were] murky, and in light of this Courts obligation to consider intervening
precedent of the Supreme Court, this Court should apply the same careful consideration applied
in Windsor to South Dakotas marriage bans and anti-recognition laws.
C.
South Dakotas Marriage Bans and Anti-Recognition Laws Require

Heightened Scrutiny Because They Classify On The Basis of
Sex/Gender
Laws that classify on the basis of sex/gender must be subject to heightened scrutiny.
Restrictions based on gender are subject to intermediate scrutiny. The
burden of justification is demanding and it rests entirely on the
State.Virginia, 518 U.S. at 533. The State must show at least that the
[challenged] classification serves important governmental objectives and
that the discriminatory means employed are substantially related to the
achievement of those objectives. Id. (quoting Miss. Univ. for Women v.
Hogan, 458 U.S. 718, 724 (1982)) (internal quotation marks omitted).The
justification must be genuine, not hypothesized or invented post hoc in
response to litigation. Id.
Jernigan, 2014 WL 6685391 at *24 (citing United States v. Virginia, 518 U.S. 515
(1996)).
Defendants contend that South Dakotas marriage bans and anti-recognition laws do not
classify on the basis of sex/gender because, [t]he class of persons regulated by marriage laws is
a couple, not an individual person. Doc. 41 at 27. (emphasis in original). Defendants go on to
explain that the laws are gender neutral because a marriage license is issued to a couple, not an
individual. Id. But, that argument merely repackages the equal application argument rejected
in Loving. As explained already, this argument directly contradicts the Supreme Courts
See also: Ginters v. Frazier, 614 F. 3d 822, 829 (8th Cir. 2010) (subsequent Supreme Court rulings implicitly may
abrogate established Eighth Circuit analysis); T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960 (8th Cir. 2006)
(holding same and recognizing that it is well settled); Nichols v. Rysavy, 809 F.2d 1317, 1328 (8th Cir. 1987).
12
pronouncements that marriage is a right belonging to the individual. Furthermore, this argument
fails for the same reason it failed in Loving.
There are no materially disputed facts regarding this issue. Rather, Defendants attempt to
reframe the facts. All of the parties agree that South Dakota issues marriage licenses to two
individuals. Based on genderrelative to each otherSouth Dakota will deny both individuals
the right to marry when both are of the same sex. Thus, South Dakota clearly does take gender
into account when issuing marriage licenses. The fact that the law denies or grants both
individuals the right to marry doesnt change the simple fact that the law expressly relies on the
sex of the proposed spouses to determine who may marry. Similarly, the fact that the law also
classifies on the basis of sexual orientation does not change the fact that the State is also
classifying based on gender; the two classifications are not mutually exclusive. Defendants
oversimplification is an attempt to avoid well-settled law requiring heightened scrutiny for laws
utilizing gender classifications.
The fallacy of Defendants argument would be apparent if a state passed a law providing
that a woman can only enter into a business partnership with a man, and vice-versa. Such a law
would plainly discriminate based on sex. The same analysis applies here. South Dakotas
marriage laws discriminate based on sex because they limit access to a vital personal rightthe
right to marryby restricting access to that right only to different-sex partners. Such a law
facially discriminates based on sex
While it is true that the majority of the courts that have struck down discriminatory
marriage laws have held that such laws violate the right to due process or impermissibly
discriminated based on sexual orientation, and that fewer have held that they impermissibly
discriminate based on sex, that simply speaks to the variety of ways in which these laws offend
13
the Constitution. Fully grappling with the overlapping relationship and distinctions between
gender/sex-based classifications and those based on sexual orientation may require some
additional analysis9, but it is nonetheless imperative that courts considering such laws do so
when presented with a sex discrimination claim and when the consequences of the challenged
laws are so severe. Accordingly, this Court should conclude, as two of its sister courts in the
Eighth Circuit recently have, that South Dakotas marriage bans and anti-recognition laws
classify on the basis of sex/gender.
The restriction on same-sex marriage is a classification based on gender.
The State's permission to marry depends on the gender of the would-be
participants. The State would permit Jack and Jill to be married but not
Jack and John. Why? Because in the latter example, the person Jack
wishes to marry is male. The State's permission to marry depends on the
genders of the participants, so the restriction is a gender-based
classification.
Lawson, 2014 WL 5810215 at *8.
That Arkansas's restriction on same-sex marriage imposes identical
disabilities on men and women does not foreclose a claim that the laws
discriminate based on gender. In Loving, the Supreme Court rejected the
argument that anti-miscegenation statutes did not discriminate based on
race because the statutes applied equally to African Americans and
Caucasians. Loving, 388 U.S. at 8. That rationale applies here as well. See
Latta, 2014 WL 4977682, at *17 (Berzon, J., concurring) ([I]t is simply
irrelevant that the same-sex marriage prohibitions privilege neither gender
as a whole or on average. Laws that strip individuals of their rights or
restrict personal choices or opportunities solely on the basis of the
individuals' gender are sex discriminatory....).
Jernigan, 2014 WL 6685391 at *23 (emphasis in original).
Justice Kennedy called this a difficult question that I've been trying to wrestle with. Transcript of Oral
Argument, Hollingsworth v. Perry, No. 12144, 2013 WL 1212745 at *13 (U.S. Mar. 26, 2013)
!
14
D.
A Finding Of Animus Is Sufficient, But Not Necessary, To Find South

Dakotas
Marriage
Bans
And
Anti-Recognition
Laws
Unconstitutional
Courts look for a rational connection between purported legislative ends and the chosen
legislative means to ensure that the state has not engaged in line drawing merely for the purpose
of disadvantaging the group burdened by the law. Romer v. Evans, 517 U.S. 620, 633 (1996);
see also Windsor, 133 S. Ct. at 2693; City of Cleburne v. Cleburne Living Center, 473 U.S. 432,
450 (1985); U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973).
Laws whose purpose is to disadvantage a politically unpopular group violate equal
protection. In other words, a finding that a law was advanced for an impermissible purpose
(animus) is sufficient to strike down the law. Windsor, 133 S. Ct. at 2693; Romer, 517 U.S. at
634-35; Cleburne 473 U.S. at 446-47; Moreno, 413 U.S. at 534. The history of South Dakotas
marriage ban shows that this is an instance of such line drawing. See e.g., Doc. 27 at 3, 5, 7
(quoting legislative history indicating that the purpose of Amendment C was to combat events
in Hawaii and also showing that Amendment C went beyond marriage, targeting same-sex
couples by further preventing any kind of state recognition of their relationships.)
Defendants argue that, the amendments to South Dakotas marriage laws in 1996 and
2006 simply maintained the status quo. They did not withdraw or remove a right previously
enjoyed by same-sex couples. Doc. 41 at 34. But, Defendants fail to recognize that the Windsor
Court addressed exactly the same circumstances, since no state allowed same-sex couples to
marry in 1996 when Congress passed DOMA. Windsor, 133 S. Ct. at 2681. The purpose and
effect of South Dakotas marriage bans and anti-recognition laws was to disadvantage same-sex
couples much like the history of DOMAs enactment, including a stated interest in
defend[ing] the institution of traditional heterosexual marriage, demonstrated that interference
with the equal dignity of same-sex marriages . . . was more than an incidental effect of the
!
15
federal statute but was its essence. Windsor, 133 S. Ct. at 2681. As Justice Scalia recognized
in Lawrence, preserving the traditional institution of marriage is just a kinder way of
describing the States moral disapproval of same-sex couples. 539 U.S. at 601 (Scalia, J.,
dissenting).
Defendants also fail to acknowledge that the legislative history that led the Supreme
Court to find Congress was motivated by a bare ... desire to harm a politically unpopular
group, Windsor, 133 S. Ct. at 2694 (citation omitted), is materially indistinguishable from the
history of South Dakotas marriage bans. DOMA was enacted in response to a court decision in
Hawaii recognizing the freedom to marry, while South Dakotas marriage bans and antirecognition laws were also enacted in response to events in Hawaii and other States
recognizing the rights of same-sex couples. Both the legislative and non-legislative proponents
of South Dakotas marriage bans and anti-recognition statutes saw those laws as a way to thwart
any extension of marriage or marriage-like rights to same-sex couples. See Doc 27 at 110.
Both South Dakotas and the federal governments (in the case of DOMA) exclusions of samesex couples were justified by appeals to tradition and fears of change. Id. The record in Windsor
was sufficient to strike down DOMAs deprivation from gay and lesbian couples of the federal
recognition and benefits of marriage, and the record here is likewise sufficient to strike down
South Dakotas marriage bans and anti-recognition laws.
Defendants cannot argue that the analysis in Windsor applies only to laws that
discriminate in an unusual way. First, the unusual character of DOMAs regulation of
domestic relations was only one indication of the laws purpose and effect to disadvantage samesex couples. Windsor, 133 S. Ct. at 2693. The Court also relied upon [t]he history of DOMAs
enactment and its own text, id., as well as it operation in practice. Id. at 2694. See also Vill. of
16
Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 267 (1977) (historical
background of the decision is relevant when determining legislative intent).
In addition, like DOMA, the laws challenged here are unusual because: 1) the laws
expressly single out a politically unpopular group in order to disadvantage them (the Supreme
Court noted in Romer, that laws singling out a certain class of citizens for disfavored legal
status or general hardships are rare. 517 U.S. at 633.); 2) the laws sweep with such an extremely
broad brushbarring same-sex couples not only from marriage, but from any type of
relationship protections, and excluding legally married same-sex couples from any form of
recognition of their lawful marriages; and 3) because the laws break with South Dakotas
longstanding practice of recognizing out of state marriages even when such marriages are not
conferred within South Dakota, e.g., common law marriage. See Doc. 23 at 3740; Garcia v.
Garcia, 25 S.D. 645, 127 N.W. 586, 589 (1910).
Defendants argue that Plaintiffs have not presented sufficient evidence of animus. Doc.
41 at 33. Defendants are incorrect on this point, as explained, but also misunderstand the nature
of the analysis. A plaintiff need not show animus in the sense of subjective hatred or hostility or
moral disapproval, but only a purpose to disadvantage. See Bd. of Trustees of Univ. of Ala. v.
Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring) (an impermissible motive does not
always reflect malicious ill will). South Dakotas marriage bans and anti-recognition laws do
not have to be motivated by a particular religion or philosophy to be intended to disadvantag[e]
the group burdened by the law. Romer, 517 U.S. at 633. South Dakotas marriage bans and antirecognition laws were clearly designed to exclude same-sex couples and their children from the
rights and protections of marriage. That is their purpose and effect. Under Windsor and other
precedents, that is sufficient to show that the challenged laws reflect animus rather than serving a
17
legitimate purpose.
Nonetheless, while a finding that South Dakotas marriage bans and anti-recognition laws
embody an impermissible purpose (animus) is sufficient to find them unconstitutional, such a
finding is not necessary for this Court to find a violation of equal protection. See Vill. Of
Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (allegations of irrational discrimination quite
apart from the Villages subjective motivation, are sufficient to state a claim for relief under
traditional equal protection analysis). See also Kitchen, 961 F. Supp. 2d at 1215 (declining to
rule on animus, but finding that Utahs marriage ban lacked a rational basis). In any event, as
shown below, the challenged laws do not rationally advance any legitimate purpose.
E.
South Dakotas Marriage Bans And Anti-Recognition Laws Cannot

Survive Traditional Rational Basis Review
Rational basis review requires a rational connection between the marriage bans and antirecognition laws and their asserted justifications. As the Supreme Court explained in Romer,
even in the ordinary equal protection cases calling for the most deferential of standards, we
insist on knowing the relation between the classification adopted and the object to be obtained.
517 U.S. at 632. This search for the link between classification and objective gives substance to
the Equal Protection Clause and provides guidance and discipline for the legislature. Id.
Although Defendants only explicitly offer two post-hoc justifications for South Dakotas
marriage bans and anti-recognition laws (promoting heterosexual procreation and proceeding
with caution and saving public funds), a liberal reading of their brief might suggest two more
potential rationales (slippery slope and deference to the political process). Nonetheless, for
reasons explained below, none of these potential explanations can survive traditional rational
basis review.
18
1.
Promoting Heterosexual Procreation
Plaintiffs preemptively addressed Defendants first argument in their opening

memorandum supporting summary judgment. Compare Doc. 41 at 4044 with Doc. 23 at 2429.
The States first rationale is the encouragement of heterosexual couples [. . . ] to accept the
obligations and liabilities associated with state marriage laws so that children, and particularly
un-planned children, are not abandoned and required to be supported by the public fisc. Doc. 41
at 39.
This argument cannot withstand any level of judicial review. As articulated by The
Eastern District of Arkansas last week, Defendants' [. . . ] focus on connections between
marriage and procreation and the interests of children. These rationales run afoul of the basic
tenets of the state's marriage system, one that does not distinguish procreative from nonprocreative couples. Jernigan, 2014 WL 6685391 at *19.
Even assuming the state has a legitimate interest in promoting procreation, Defendants do
not explain how the exclusion of same-sex couples from marriage has any effect whatsoever on
procreation among heterosexual spouses. Excluding same-sex couples from marriage does not
change the number of heterosexual couples who choose to get married, the number who choose
to have children, or the number of children they have. There is simply no rational relation
between the exclusion of same-sex couples from marriage and the States asserted interest in
promoting naturally procreative marriages. See Lawrence, 539 U.S. at 604 (Scalia, J., dissenting)
([W]hat justification could there possibly be for denying the benefits of marriage to homosexual
couples exercising the liberty protected by the Constitution? Surely not the encouragement of
procreation, since the sterile and the elderly are allowed to marry.) (quotations omitted); Turner
v. Safley, 482 U.S. 78, 95 (1987) (declaring a constitutionally protected marital relationship in
the prison context even when a couple may not birth a child); Griswold v. Connecticut, 381
!
19
U.S. 479, 48586 (1965) (holding that married couples have a right to use contraception).
2.
Proceeding With Caution And Saving Public Funds
Relying exclusively on a recent Sixth Circuit majority opinion, from which Defendants cite
heavily,10 Defendants also argue that proceed[ing] with caution, doc. 41 at 44, and saving
public funds by not expanding the number of couples eligible for marriage benefits constitutes
a rational basis for the marriage bans and anti-recognition laws. Doc 41 at 39. Neither of these
have merit.
Nearly every court to consider the proceeding with caution argument after Windsor has
rejected it for merely restating the exclusion without providing any substantive justification. As
the district court in Kitchen noted: The State can plead an interest in proceeding with caution in
almost any setting. If the court were to accept the State's argument here, it would turn the rational
basis analysis into a toothless and perfunctory review. Kitchen, 961 F. Supp. 2d at 1213 aff'd,
755 F.3d 1193 cert. denied, 135 S. Ct. 265; see also Bostic v. Rainey, 970 F. Supp. 2d 456, 47475 (E.D. Va. 2014) aff'd sub nom. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) cert. denied
sub nom. Rainey v. Bostic, 135 S. Ct. 286 (2014).
Courts have also noted that this rationale is based on unsupported fears and simply
presumeswithout evidence or logicthat permitting same-sex couples to marry will have
some unspecified negative impact. But even under rational basis review, such unsupported fears
are not sufficient. As the Seventh Circuit recently explained:
The states second argument is: go slow: maintaining the prohibition of
same-sex marriage is the prudent, cautious approach, and the state
should therefore be allowed to act deliberately and with prudenceor, at
the very least, to gather sufficient informationbefore transforming this
10
Defendants brief contains over 60 lines, including five block quotes, to the Sixth Circuits opinion in DeBoer.
Similarly, Defendants memo has over one dozen references to dissenting opinions in Windsor and contains only
three majority opinion block quotes.!
20
cornerstone of civilization and society. There is no suggestion that the

state has any interest in gathering information, for notice the assumption in
the quoted passage that the state already knows that allowing same-sex
marriage would transform a cornerstone of civilization and society,
namely monogamous heterosexual marriage. One would expect the state
to have provided some evidence, some reason to believe, however
speculative and tenuous, that allowing same-sex marriage will or may
transform marriage.
Baskin v. Bogan, 766 F.3d at 668, cert. denied, 135 S. Ct. 316, and cert. denied sub nom. 135 S.
Ct. 316 (emphases in original).
Similarly, the district court in Kitchen noted:
The State's argument is analogous to the City of Cleburne's position in
City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, (1985). In
that case, the City was concerned about issuing a permit for a home for the
developmentally disadvantaged because of the fears of the property
owners near the facility. Id. at 448, 105 S.Ct. 3249. The Supreme Court
held that mere negative attitudes, or fear, ... are not permissible bases for
treating a home for the mentally retarded differently from apartment
houses, multiple dwellings, and the like. Id.
Kitchen, 961 F. Supp. 2d at 1213 aff'd, 755 F.3d 1193 cert. denied, 135 S. Ct. 265. The States
unsupported fears are equally impermissible as a basis for treating same-sex couples differently
here.
Likewise, any contention that allowing same-sex couples to marry will result in added
costs to the State, and that the desire to save costs justifies the challenged laws, is insufficient
under any standard of review. Even under the rational basis standard, states may not cite cost
savings as a justification unless the exclusion of the particular group at issue rationally advances
an independent governmental interest. See Plyler v. Doe, 457 U.S. 202, 229 (1982). Here,
exclusion of same-sex couples from marriage advances no such independent interest.
3.
Slippery Slope
Defendants also contend that excluding same-sex couples from the freedom to marry is
21
justified in order to maintain bans on incestuous or polygamous marriages. See Doc. 41 at 19, 22,
45. As explained already, this argument is also without merit. Defendants suggested slippery
slope concern is not an end (a supporting rationale) that is logically connected to the means
(barring same-sex couples from marriage).
The means chosen to accomplish the State's asserted purpose must be
specifically and narrowly framed to accomplish that purpose. Utah's ban
on polygamy, for example, is justified by arguments against polygamy.
[. . . ] Similarly, barring minors from marriage may be justified based on
arguments specific to minors as a class. [. . . ] [A]ppellants fail to advance
any argument against same-sex marriage that is based specifically on its
alleged intrinsic ills.
Kitchen, 755 F.3d at 1219-20 cert. denied, 135 S. Ct. 265 (internal citations and quotations
omitted).
4.
Deference To The Political Process
Defendants also suggest that South Dakotas marriage bans and anti-recognition laws are
justified by deference to the political process and that Plaintiffs claims are simply policy issues
that are best left to the democratic majority. Doc. 41 at 47. But this argument begs the very
question before this Courtwhether the challenged laws deprive the plaintiffs and other samesex couples of their protected rights to due process and equal protection of the laws, which all
laws must respect. As a federal district court in Mississippi recently held, it is uniquely the role
of the courts in our constitutional system to protect those fundamental protections against
overreaching by temporary majorities:
[T]he judiciary does not defer to the voters' decision to deprive others of
constitutional rights. James Meredith was admitted to the University of
Mississippi over the will of the voters. Edith Windsor was not told to send
a strongly worded letter to her Congressman. The political process does
not enforce individual constitutional rights. The judiciary does. [. . . ] The
framers did not set up Article III to yield to the superior force of an
interested and overbearing majority.
Campaign for S. Equal. v. Bryant, No. 3:14-CV-818-CWR-LRA, 2014 WL 6680570, at
!
22
*32-33
(S.D. Miss. Nov. 25, 2014) (striking down Mississippi ' s marriage ban- which was
enacted by a 86% majority vote- a few weeks after the lawsuit was filed) (internal citations and
quotations omitted).
V.
NO STAY SHOULD BE ENTERED
The consequences of South Dakota' s refusal to marry and to recognize the marriages of
Plaintiffs and other same-sex couples are dramatic and immediate. As demonstrated in this
litigation, the marriage bans and anti-recognition laws cause real and serious harm to families
across this State every day. The families of same-sex couples in this State and District, including
the couples and their children and other loved ones, deserve the protections, benefits,
responsibilities, etc. that are afforded with marriage. In the event that this Comt grants Plaintiffs'
motion for summaiy judgment, Plaintiffs respectfully request that no stay is entered.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Comt grant Plaintiffs'
motion for summary judgment and deny Defendants' motion for summary judgment.
Dated this I st day of December, 2014.
MADIA LAW LLC
dmitted pro hac vice

345 Union Plaza
333 Washington Avenue North
Minneapolis, Minnesota 55401
Phone: (612)
Fax: (612) 235-3357
joshuanewville@madialaw.com
23
NATIONAL CENTER FOR LESBIAN RIGHTS

/s/Shannon P. Minter
.
Shannon P. Minter
Christopher F. Stoll
Admitted pro hac vice
870 Market Street, Suite 370
San Francisco, California 94102
Phone: (415) 392-6257
Fax: (415) 392-8442
sminter@nclrights.org
BURD AND VOIGT LAW OFFICE
/s/Debra Voigt
.
Debra Voigt
SD Bar No. 2473
601 S. Cliff Ave, Suite A
Sioux Falls, SD 57103
Phone: (605) 332-4351
Fax: (605) 334-6844
debra@burdandvoigt.com
24

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Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 1 of 28 PageID #: 710

UNITED STATES DISTRICT COURT

Court File No. 14CV4081-KES

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 2 of 28 PageID #: 711

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 3 of 28 PageID #: 712

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 4 of 28 PageID #: 713

Plyler v. Doe, 457 U.S. 202 (1982) .............................................................................................. 21

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 5 of 28 PageID #: 714

STATE LAWS REGULATING MARRIAGE MUST COMPLY WITH

The Tenth Amendment Does

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 6 of 28 PageID #: 715

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 7 of 28 PageID #: 716

The Domestic Relations Exception Does Not Deprive This Court Of

Defendants attempted reliance on the domestic relations exception to federal questions is

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 8 of 28 PageID #: 717

THE CONSTITUTIONAL RIGHT TO MARRY INCLUDES SAME-SEX

The Right To Marry Belongs To The Individual

As Plaintiffs demonstrated in their opening memorandum, the right to marry is a

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 9 of 28 PageID #: 718

Windsor Supports Plaintiffs Due Process Argument

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 10 of 28 PageID #: 719

necessary and proper in fact serve only to oppress. Id. at 579.

False Slippery Slopes Cannot Deprive Individuals of Marital Rights

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 11 of 28 PageID #: 720

Loving Supports Plaintiffs Due Process Argument

SOUTH DAKOTAS MARRIAGE BANS INTERFERE WITH

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 12 of 28 PageID #: 721

necessarily includes the right to remain married.)

SOUTH DAKOTAS MARRIAGE LAWS CANNOT SURVIVE ANY

As Plaintiffs explained in their opening memorandum, heightened scrutiny is required for

South Dakotas Marriage Bans And Anti-Recognition Laws Require

Windsor Supersedes Bruning And Establishes That South Dakotas

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Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 14 of 28 PageID #: 723

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 15 of 28 PageID #: 724

purposes and then applied rational-basis review. Bruning, 455 F.3d at

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 16 of 28 PageID #: 725

Young v. Hayes, 218 F.3d 850, 852 (8th Cir. 2000).8

South Dakotas Marriage Bans and Anti-Recognition Laws Require

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 17 of 28 PageID #: 726

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 18 of 28 PageID #: 727

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 19 of 28 PageID #: 728

A Finding Of Animus Is Sufficient, But Not Necessary, To Find South

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 20 of 28 PageID #: 729

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 21 of 28 PageID #: 730

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 22 of 28 PageID #: 731

South Dakotas Marriage Bans And Anti-Recognition Laws Cannot

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 23 of 28 PageID #: 732

Promoting Heterosexual Procreation

Plaintiffs preemptively addressed Defendants first argument in their opening

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 24 of 28 PageID #: 733

Proceeding With Caution And Saving Public Funds

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 25 of 28 PageID #: 734

cornerstone of civilization and society. There is no suggestion that the

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 26 of 28 PageID #: 735

Deference To The Political Process

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 27 of 28 PageID #: 736

NO STAY SHOULD BE ENTERED

MADIA LAW LLC

dmitted pro hac vice

Case 4:14-cv-04081-KES Document 47 Filed 12/01/14 Page 28 of 28 PageID #: 737

NATIONAL CENTER FOR LESBIAN RIGHTS

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