2:13-cv-05641 #27

Case 2:13-cv-05641-MAM Document 27 Filed 01/13/14 Page 1 of 64
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CARA PALLADINO and ISABELLE BARKER, Plaintiffs, v. THOMAS W. CORBETT, in his official capacity as Governor of Pennsylvania, and his successors in office; and KATHLEEN KANE, in her official capacity as Attorney General of Pennsylvania, and her successors in office, Defendants. ORDER
CIVIL ACTION
No. 2:13-cv-05641-MAM
AND NOW, this ____ day of __________________, 2014, it is hereby ORDERED that: (1) The Motion to Dismiss of Defendant Governor Thomas W. Corbett (Dkt. No. 20) is DENIED; (2) The Motion to Dismiss of Defendant Attorney General Kathleen Kane (Dkt. No. 21) is DENIED; and (3) The Cross Motion for Summary Judgment of Plaintiffs Cara Palladino and Isabelle Barker is GRANTED; (4) 23 Pa. Cons. Stat. 1704 is declared invalid as violative of the United States Constitution; and (5) Costs of suit under 42 U.S.C. 1988 shall be determined in a separate hearing. BY THE COURT:
_______________________________ McLaughlin, J.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CARA PALLADINO and ISABELLE BARKER, Plaintiffs, v. THOMAS W. CORBETT, in his official capacity as Governor of Pennsylvania, and his successors in office; and KATHLEEN KANE, in her official capacity as Attorney General of Pennsylvania, and her successors in office, Defendants.
CIVIL ACTION
No. 2:13-cv-05641-MAM
PLAINTIFFS COMBINED MEMORANDUM OF LAW IN OPPOSITION TO THE MOTIONS TO DISMISS FILED BY DEFENDANTS CORBETT AND KANE AND IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
Michael L. Banks (Pa. Bar I.D. No. 35052) Eric Kraeutler (Pa. Bar I.D. No. 32189) Vanessa R. Brown (Pa. Bar I.D. No. 315115) Elisa P. McEnroe (Pa. Bar I.D. No. 206143) William O. Mandycz (admitted pro hac vice) Jane Manchisi (Pa. Bar I.D. No. 309085) Jonathan D. Wall (Pa. Bar I.D. No. 316692) MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 215.963.5000 (telephone) 215.963.5001 (fax) mbanks@morganlewis.com ekraeutler@morganlewis.com vbrown@morganlewis.com emcenroe@morganlewis.com wmandycz@morganlewis.com
Benjamin L. Jerner (Pa. Bar I.D. No. 76202) Tiffany L. Palmer (Pa. Bar I.D. No. 82695) Jerner & Palmer, P.C. 5401 Wissahickon Avenue Philadelphia, PA 19144 215.843.6000 (telephone) 215.843.6006 (fax) TPalmer@JPLaw.com BJerner@JPLaw.com
Attorneys for Plaintiffs
TABLE OF CONTENTS Page I. II. INTRODUCTION ............................................................................................................. 1 LEGAL AND FACTUAL BACKGROUND .................................................................... 2 A. B. C. D. E. F. III. A. B. Pennsylvanias Treatment of Out-of-State Marriages ........................................... 2 The Relevant Statute .............................................................................................. 4 Plaintiffs Cara Palladino and Isabelle Barker ........................................................ 6 Plaintiffs Relocate to Pennsylvania and Have a Son ............................................. 7 The Evolution of the Legal and Constitutional Landscape.................................... 8 Defendants Responses to the Windsor Decision .................................................. 9 Defendants Motions to Dismiss Are Without Merit........................................... 11 Defendant Corbett and Defendant Kane Are Subject to This Lawsuit Under Ex parte Young......................................................................................... 12 1. Both Defendant Corbett and Defendant Kane Have Sufficient Connections to the Enforcement 1704.................................................. 14 a. b. 2. Defendant Corbetts Connection to 1704 ................................. 14 Defendant Kanes Connection to 1704 ..................................... 15
DEFENDANTS MOTIONS TO DISMISS SHOULD BE DENIED ............................ 11
Cases Barring Suit on Eleventh Amendment Grounds Where Other State Officials Are Responsible for and Have Undertaken Acts of Enforcement Are Inapposite .................................................................... 17 Defendants Have Not Identified an Alternate Public Official Who Is a More Appropriate Defendant ............................................................ 20
3. C. D. IV.
Plaintiffs Have Standing to Challenge the Unconstitutional Law That Purports to Void Their Existing Marriage ........................................................... 21 Baker v. Nelson Does Not Deprive This Court of Subject Matter Jurisdiction........................................................................................................... 22
PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR CLAIMS .......................................................................................................................... 25 A. B. Motion for Summary Judgment Standard............................................................ 25 Section 1704 Violates the Fourteenth Amendments Due Process Clause Because It Impermissibly Deprives Plaintiffs of a Protected Liberty Interest in Their Existing Marriage..................................................................... 26 1. The Due Process Clause of the Fourteenth Amendment Protects the Fundamental Right to Have an Existing Marriage............................. 26
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TABLE OF CONTENTS (continued) Page 2. Section 1704 Imposes a Severe Burden and Inflicts Severe Harms on Plaintiffs and Other Married Same-Sex Couples and Their Families.................................................................................................... 30
C.
Section 1704 Violates the Fourteenth Amendment Because It Impermissibly Deprives Plaintiffs Of Equal Protection Under the Law ........... 33 1. 2. 3. Section 1704 is Unconstitutional Under Any Standard of Review.......... 33 Pennsylvanias Contemporaneous Arguments for the Passage of 1704....................................................................................................... 38 No Legitimate Interest Overcomes the Primary Purpose and Practical Effect of 1704 to Disparage and Demean Same-Sex Couples and Their Families ..................................................................... 42 The Full Faith and Credit Command Must Be Exacting with Respect to Certificates of Marriage ......................................................... 46 The Effects Clause of Article IV, Section 1 Does Not Permit the Legislature to Refuse to Give Any Effect to Plaintiffs Marriage ........... 49 Even If It Otherwise has the Authority to Act, Congress Cannot Pass Legislation in Violation of the Fifth Amendment ........................... 51 Section 1983 Permits Plaintiffs to Challenge 1704 as Unconstitutional Under the Full Faith and Credit Clause........................ 52
D.
Section 1704 Violates the Full Faith and Credit Clause ...................................... 45 1. 2. 3. 4.
E.
Section 1704 Creates an Impermissible Burden on Entry into the Commonwealth of Pennsylvania ......................................................................... 56 1. 2. Section 1704 Punishes Married Same-Sex Couples That Exercise Their Right to Freely Migrate to Pennsylvania........................................ 57 Section 1704 Promotes No Compelling State Interest............................. 58
V.
CONCLUSION................................................................................................................ 59
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PLAINTIFFS COMBINED MEMORANDUM OF LAW IN OPPOSITION TO THE MOTIONS TO DISMISS FILED BY DEFENDANTS CORBETT AND KANE AND IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Plaintiffs Cara Palladino and Isabelle Barker (collectively, Plaintiffs) hereby submit this memorandum of law in opposition to the motions to dismiss previously filed by Defendants Governor Thomas W. Corbett and Attorney General Kathleen Kane (collectively, Defendants) and in support of Plaintiffs motion for summary judgment made herewith. As to the former, Plaintiffs have properly named Defendants in this action and adequately pleaded claims upon which relief may be granted. As to the latter, Plaintiffs establish below that there is no genuine dispute as to any material fact and that they are entitled to judgment as a matter of law. I. INTRODUCTION Plaintiffs are parties to a validly and lawfully solemnized marriage that was created in Massachusetts when they were domiciled there. Nonetheless, pursuant to Pennsylvania law, Plaintiffs marriage and thus their legally obtained marital status are declared void within the Commonwealth, where they have lived continuously for eight years. Plaintiffs seek respect for and recognition of their lawfully obtained marital status, for purposes of all aspects of state law in which marital or spousal status is pertinent. Defendants filed separate motions to dismiss. In support of their arguments that this Court lacks subject matter jurisdiction over Plaintiffs claims by reason of the Eleventh Amendment and Article III of the U.S. Constitution, Defendant Corbett and Defendant Kane assert that they are not proper defendants in this action and argue that other state officials are more appropriate defendants. Defendant Corbett and Defendant Kane, however, are the proper defendants in this case because they are the state officials charged with the enforcement and defense of the law that voids Plaintiffs marriage within the Commonwealth and thereby denies
Plaintiffs the respect and recognition that Pennsylvania extends to valid marriages. The relief sought in this action would directly benefit Plaintiffs. Defendant Corbett also asserts that Plaintiffs have failed to state a claim for relief under the Full Faith and Credit Clause, and with respect to their right to travel. However, each claim provides sufficient grounds upon which relief may be granted. Indeed, Plaintiffs are entitled to summary judgment on each claim. Dismissal is not appropriate but summary judgment is. Plaintiffs challenge
Pennsylvanias ability to arbitrarily create a class of extant marriages that it deems unworthy of respect and recognition. To do so violates Plaintiffs rights as guaranteed by (i) the Fourteenth Amendments Due Process and Equal Protection Clauses; (ii) the Full Faith and Credit Clause; and (iii) the fundamental right to travel. The questions before the Court are pure questions of law and may properly be decided on motion. See United States v. Various Computers & Computer Equip., 82 F.3d 582, 589 (3d Cir. 1996) (Constitutional interpretations are questions of law subject to plenary review.). II. LEGAL AND FACTUAL BACKGROUND A. Pennsylvanias Treatment of Out-of-State Marriages
Pennsylvania accepts and recognizes marriages validly entered into in other States. As the Pennsylvania Supreme Court has explained, regarding conflicts as to recognition of marital status, there is a strong policy favoring uniformity of result. In re Estate of Lenherr, 314 A.2d 255, 258 (Pa. 1974). That court recognized the necessity of a presumption of validity long ago, explaining that [i]n an age of widespread travel and ease of mobility, it would create inordinate confusion and defy the reasonable expectations of citizens whose marriage is valid in one state to
hold that marriage invalid elsewhere.1 Id. Indeed, prior to the adoption of Pennsylvanias law prohibiting recognition of same-sex marriages, there were only five historic grounds to declare a marriage absolutely void in Pennsylvania, whether the marriage originated in the Commonwealth or another State: (1) bigamy; (2) insanity; (3) minority under seven years; (4) subsequent marriage to a paramour after a divorce on the ground of adultery; and (5) marriage entered into in jest or play. See Jewett v. Jewett, 175 A.2d 141, 142 (Pa. Super. Ct. 1961). The Pennsylvania Supreme Court has since refused to declare a marriage void on the basis of ones subsequent marriage to a paramour. Lenherr, supra. Pennsylvanias prohibition against the recognition of same-sex marriages represents an unusual departure from the general rule followed throughout the country and from Pennsylvanias own past treatment of out-of-state marriages. Marriage is presumed permanent and its dissolution is through legal process or death. See Perlberger v. Perlberger, 626 A.2d 1186, 1200 (Pa. Super. Ct. 1993) (quoting Bacchetta v. Bacchetta, 445 A.2d 1194, 1198 (Pa. 1982) (stating that the Pennsylvania Divorce Code establishes a comprehensive scheme for the dissolution of marriage, the distribution of marital property and the resolution of related economic claims). Likewise, voiding a marriage without process is contrary to Pennsylvanias statutory schemes providing for divorce, custody, alimony and child support, among other considerations. See Commw. ex rel. Knode v. Knode, 27 A.2d 536, 538 (Pa. 1942). The U. S. Supreme Court previously stated that it was unaware of an instance where a couple may liberate themselves from the constraints of legal obligations that go with marriage . .
1
The so-called place of celebration rule is recognized throughout the United States and has become a defining feature and basic incident of American marriage. Steve Sanders, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421, 1434 (2012). It recognizes that individuals order their lives based on their marital status and need to know reliably and certainly, and at once, whether they are married or not. Id. (internal quotation marks omitted). 3
. without invoking the States judicial machinery. Boddie v. Connecticut, 401 U.S. 371, 376 (1971). The Court has emphasized the role of procedural safeguards for married couples that affect their marital status and very likely their property rights. Sosna v. Iowa, 419 U.S. 393, 406-07 (1975). In fact, [o]nly with same-sex marriages have states imposed emphatic and inflexible rules of non-recognition. Sanders, supra n.1, at 1438. Opposite-sex couples who enter into marriages that are valid under the laws of their States of domicile at the time of their marriages can ordinarily expect to move anywhere in the country, including Pennsylvania, without the slightest concern about whether their new domiciliary States will respect their marriages. Pennsylvanias prohibition against recognition of same-sex marriages, however, denies married same-sex couplesand only those couplesthe security of this rule when they move to or consider moving to Pennsylvania. The Supreme Court has repeatedly and recently emphasized that [d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitution[]. United States v. Windsor, 133 S. Ct. 2675, 2692 (2013) (citations and internal quotation marks omitted). Pennsylvanias prohibition against recognition of same-sex marriages constitutes just such discrimination. See id. B. The Relevant Statute
On October 16, 1996, the Pennsylvania General Assembly enacted legislation that declared it to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. 23 Pa. Cons. Stat. Ann. 1704 ( 1704 or Section 1704). The law purports to void lawful marriages created in other States based on a single criterion: [a] marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth. Id. 4
Comments made during the floor debate in the Pennsylvania House of Representatives reveal that 1704 was motivated by moral disapproval for the marriages of same-sex couples:2 [T]hese so-called marriages are contrary to our . . . . traditional and longstanding policy of moral opposition to same-sex marriages . . . . Kraeutler Decl., Ex. A, 3 and Attach. 2 at 2017 (statement of Rep. C. Allan Egolf). [This legislation] is designed to benefit the vast majority of Pennsylvanians, because the large majority does not want our traditional marriage institution and our state of morals to be changed. Id. at 2019. I rise to support this amendment. I never thought in my 20 years that I would be voting on such an amendment. . . . I just thank God I am going back to Oakdale, where men are men and women are women, and believe me, boys and girls, there is one heck of a difference. Id. at 2022 (statement of Rep. Ronald Gamble). No same-sex relationship can mimic the genuine potential of a relationship between a woman and a man. . . . To pretend that same-sex relationships are on the same level as the institution of marriage not only goes against the facts, but also denigrates the men and women who make their special contribution to society through their marriages. Id. at 2023 (remarks of Rep. Jerry Stern submitted for the record) (citation omitted). In addition to voicing the legislators moral disapproval of marriage between same-sex couples, members of both the Pennsylvania House of Representatives and the Pennsylvania Senate collectively identified three other purposes to be served by 1704: (1) avoiding placing an unfunded mandate on private businesses to provide benefits to same-sex spouses;3 (2)
Excerpts from the legislative history of 1704 are attached to the Declaration of Eric Kraeutler (Kraeutler Decl.), attached hereto and incorporated herein as Exhibit A. 3 [L]egalizing same-sex marriages would place another unfunded mandate on our business community. Any existing pension or insurance program providing benefits to a spouse would now have to include an entirely new supply of so-called spouses. . . . To avoid these new liabilities, providers would have to cancel and rewrite the agreements, and future agreements might even delete the coverage of spouse and family that Pennsylvania workers have come to depend on. Kraeutler Decl., Ex. A, 3 and Attach. 2 at 2017 (statement of Rep. C. Allan Egolf). However, Rep. Egolf later conceded that no such unfunded mandate would result from the recognition of same-sex marriages. Id. at 2018 (interrogation of Rep. C. Allan Egolf by Rep. Mark B. Cohen). 5
conserving limited state resources and protecting the public fisc;4 and (3) avoiding the economic dislocations that would result from sham same-sex marriages (i.e., marriages entered into by people of the same sex purely for financial gain).5 C. Plaintiffs Cara Palladino and Isabelle Barker
Plaintiffs Cara Palladino and Isabelle Barker met while living in New York, and have been in a relationship since 1998. Declaration of Isabelle Barker (Barker Decl.), attached hereto and incorporated herein as Exhibit B, 1. In 2004, Plaintiffs relocated to
Massachusetts to take advantage of employment and educational opportunities. Id. 2. Soon thereafter, Plaintiffs decided to marry. Getting married in Massachusetts requires an eligible couple to submit an application for a marriage license and to pay a fee to any city or town clerk in Massachusetts. Mass. Gen. Laws Ann. ch. 207, 19. The couple receives a marriage license from the clerk and the marriage must be solemnized within sixty days of filing the application. Id. 28, 30. Once the ceremony has been performed, the person who performed it will state the time and place of the wedding on the license, and sign it and send it back to the city or town where the couple applied for it. Id. 40. The clerk then registers the marriage and the couple receives an official certificate of their
The burden on the public sector could be great as well. In recognizing same-sex marriages, courts would also have to hear all same-sex divorce suits. This will only compound the backlog of cases in our judicial system. Social Security, tax, and other benefits presently conferred on spouses would have to be expanded to include married partners of the same sex. The financial costs imposed on society by the forced recognition of same-sex marriage cannot even be calculated at this time. Id. at 2017 (statement of Rep. C. Allan Egolf).
5
I daresay that if we begin to redefine marriage as same gender, there will be many people who will suddenly realize that they can achieve the benefits of a married couple, whether it is in taxes, inheritances, property ownership, whatever it may be, that will be a clear economic advantage that is in fact enjoyed by married people of different genders. . . . I think there will be economic dislocations that would occur if we were to permit same-gender marriages that we have not even begun to conceive at this point . . . . Kraeutler Decl., Ex. A, 3 and Attach. 3 at 2454 (statement of Sen. Roy C. Afflerbach) 6
marriage. Id. The marriage certificate is an official record of Massachusetts signifying to the world that the couple is married and, with the legal status of a married couple, assumes all of the rights and responsibilities attendant to marriage vis--vis each other, the Commonwealth and third parties. The marital status signified by the certificate has the force of law, and is similar to a court judgment in that it creates individual legal obligations, prohibits certain conduct, entitles the holder to certain benefits, and can be modified only by court order. On February 3, 2005, the clerk of Northampton issued a marriage license to Plaintiffs. Barker Decl., Ex. B, 4; see also Kraeutler Decl., Ex. A, 3 and Attach. 1. Plaintiffs marriage was solemnized through a ceremony in Massachusetts on February 10, 2005. Barker Decl., Ex. B, 5; see also Kraeutler Decl., Ex. A, 3 and Attach. 1. On February 11, 2005, the clerk of Northampton registered the marriage and issued a marriage certificate. Barker Decl., Ex. B, 6; see also Kraeutler Decl., Ex. A, 3 and Attach. 1. D. Plaintiffs Relocate to Pennsylvania and Have a Son
On May 6, 2005, Bryn Mawr College, located in Bryn Mawr, Pennsylvania, offered Isabelle Barker a postdoctoral fellowship. Barker Decl., Ex. B, 8. On May 12, 2005, Isabelle Barker accepted the postdoctoral fellowship with Bryn Mawr College. Id. 9 and Attach. 2. Plaintiffs moved to Pennsylvania in August 2005. Id. 10. Like any other couple that was married in a different State and relocated to Pennsylvania, Plaintiffs hold themselves out as married, and when they visit Massachusetts or any of the other seventeen States that recognize same-sex marriages, their status is recognized to be just as solemn and dignified as any other married couple that enters the jurisdiction. In Pennsylvania, however, their marriage is considered void as a matter of law, solely because they are both of the same sex. This affects Plaintiffs not only as individuals, but as parents. In January 2009, Isabelle 7
Barker gave birth to the couples son, W.P., in Delaware County, Pennsylvania. Id. 13. Under the law of Massachusetts, where Plaintiffs were married four years earlier, W.P. would have been considered a child of married parents. If Plaintiffs had been an opposite-sex couple at the time of W.P.s birth, they would have both been considered his legal parents under Pennsylvania law. [G]enerally, a child conceived or born during the marriage is presumed to be the child of the marriage; this presumption is one of the strongest presumptions of the law of Pennsylvania. See Brinkley v. King, 248 701 A.2d 176, 179 (Pa. 1997) (internal citations omitted); see also, 23 Pa. C.S.A. 5102(b). The presumption of paternity and the doctrine of estoppel, therefore, embody the two great fictions of the law of paternity: the presumption of paternity embodies the fiction that regardless of biology, the married people to whom the child was born are the parents. Brinklley, 701 A.2d at 249; Id. at 180. Because of 1704, however, W.P. had only one legal parent at the time of his birth, a single mother. Barker Decl., Ex. B, 14 and Attach. 3. Plaintiffs proceeded with a secondparent adoption that allowed Plaintiff Palladino to become a lawful parent of W.P., even though, in the eyes of Pennsylvania, W.P.s parents were unmarried. On April 7, 2009, Plaintiffs filed a Petition for Adoption in the Court of Common Pleas of Philadelphia County. Id. 15. On June 12, 2009, the second-parent adoption of W.P. was finalized. Id. 16 and Attach. 4. Plaintiffs and W.P. currently live in Philadelphia County, Pennsylvania. Id. 17. E. The Evolution of the Legal and Constitutional Landscape
On September 21, 1996, the federal Defense of Marriage Act (DOMA) was enacted. Pub. L. No. 104-199, 110 Stat. 2419. Section 3 of DOMA defined marriage, for purposes of federal law, as a legal union between one man and one woman. See 1 U.S.C. 7. Section 2 of DOMA authorized States to refuse to recognize or respect a relationship between same-sex spouses that is considered a marriage under the laws of another State. See 28 U.S.C. 1738C. 8
On June 26, 2013, the Supreme Court struck Section 3 of DOMA. See Windsor, 133 S. Ct. at 2693-96. As discussed below, the Court found that DOMA writes inequality into the entire United States Code. . . . DOMAs principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. Id. at 2694. Although Windsor invalidated Section 3 of DOMA, it did not resolve the constitutionality of Section 2 of DOMA, which purportedly allows States to refuse to recognize same-sex marriages performed under the laws of other States. Id. at 268283 (citing 28 U.S.C. 1783C). Nor did the Windsor decision address the constitutionality of state statutes that refuse to allow same-sex couples to marry, or that deny recognition to valid marriages of same-sex couples. The Windsor Court did, however, recognize (three separate times) that state marriage laws must comply with the Fourteenth Amendment. F. Defendants Responses to the Windsor Decision
In an article dated June 27, 2013, the day after Windsor was decided, a spokeswoman for Defendant Corbett said the courts ruling clearly supports the power of states to regulate domestic relations issues such as marriage and that the governor supports Pennsylvania law on marriage which is plainly defined as one man and one woman taking each other as for [sic] husband and wife. Kraeutler Decl., Ex. A, 3 and Attach. 7. In other words, Defendant Corbett publicly endorsed the provisions of Pennsylvania law that purport to disrespect and effectively void marriages of same-sex couples that were lawfully entered into in other States. Defendant Kane, the Attorney General for the Commonwealth of Pennsylvania, took a very different view of Windsor. On July 11, 2013, Defendant Kane issued a press release lamenting that under Pennsylvania law same-sex marriages that are legally made in other states are void in Pennsylvania. Kraeutler Decl., Ex. A, 3 and Attach. 10. Defendant Kane voiced 9
her personal opposition to the Pennsylvania statute, stating that: I cannot ethically defend the constitutionality of Pennsylvanias version of DOMA where I believe it to be wholly unconstitutional. It is my duty under the Commonwealth Attorneys Act whenever I determine it is in the best interest of the Commonwealth to authorize the Office of General Counsel to defend the state in litigation. Id. (internal quotation marks omitted). Defendant Kane stated that it is also a lawyers ethical obligation under Pennsylvanias Rules of Professional Conduct to withdraw from a case in which the lawyer has a fundamental disagreement with the client. Id. In refusing to defend 1704, Defendant Kanes press release explained as follows: Section 1704, like federal DOMA, imposes a disadvantage, a separate status, and a stigma on those who enter into same-sex marriages. For those same-sex couples who legally marry outside Pennsylvania, 1704 denies them the fundamental right to have their lawful marriage recognized in our state. Section 1704 has no legitimate purpose other than to disparage and injure same-sex couples by placing them in a less respected position than others. Discriminatory treatment prohibiting recognition of same-sex marriages violates both the United States and Pennsylvania Constitutions.
See id. In conclusion, Defendant Kane explained her refusal to defend 1704 as follows: It is our duty, each and every one of us, to protect the constitutionality, to protect the rights and dignity of others, and to protect the equality of all men and women in this Commonwealth. Id. Defendant Kanes press release and publicly stated position, unfortunately, have no legal force. Absent a decision by this Court recognizing the constitutional infirmities of 1704, Plaintiffs and other same-sex couples will continue to be denied all of the protections, benefits, incidents, responsibilities, obligations and mutual commitments of marriage that the 10
Commonwealth of Pennsylvania bestows upon its married residents. See Windsor, 133 S. Ct. at 2694-95. III. DEFENDANTS MOTIONS TO DISMISS SHOULD BE DENIED. A. Defendants Motions to Dismiss Are Without Merit.
Defendant Corbett and Defendant Kane each move to dismiss this case based on Federal Rule of Civil Procedure 12(b)(1) and (b)(6) (see Dkt. Nos. 20 & 21), and both argue, separately, that this Court lacks subject matter jurisdiction. Defendant Corbett also asserts that Plaintiffs have failed to state a claim upon which relief can be granted with respect to the Full Faith and Credit Clause and the right to travel. In the context of a Rule 12(b)(1) motion attacking the existence of subject matter jurisdiction, a court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case; the party asserting subject matter jurisdiction bears the burden of proving it exists. Mortenson v. First Fed. Sav. & Loan Assn, 549 F.2d 884, 891 (3d Cir. 1977). In making this determination, the court is not confined to the allegations in the complaint . . . and can look beyond the pleadings to decide factual matters relating to jurisdiction. Cestonaro v. United States, 211 F.3d 749, 752 (3d Cir. 2000). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all factual allegations in the complaint and draw all inferences in the light most favorable to the plaintiff. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). For a Rule 12(b)(6) motion, the defendant bears the burden of demonstrating that the plaintiff has failed to set forth a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6); Santiago v. Citywide Cmty. Counseling Servs., Inc., No. CIV.A. 13-2114, 2013 WL 4051223, at *2 (E.D. Pa. Aug. 12, 2013). Courts must determine whether the pleading at issue contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 11
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court may consider allegations contained in the complaint, exhibits attached to the complaint and matters of public record. Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Defendant Corbett and Defendant Kane raise three arguments regarding subject matter jurisdiction: (1) Defendant Corbett argues this Court lacks jurisdiction because he is entitled to Eleventh Amendment immunity (see Corbetts Br. V.A.1-2) (2) both Defendant Corbett and Defendant Kane argue that this Court lacks Article III jurisdiction because Plaintiffs lack standing to bring these claims against them (because Defendants assert they are not responsible for enforcing 1704) (see Corbetts Br. V.A.3; Kanes Br. III.A); and (3) Defendant Corbett argues that this Court lacks jurisdiction because there is no substantial federal question, relying on Baker v. Nelson, 409 U.S. 810 (1972) (mem.), affirming Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) (see Corbetts Br. V.B.1). Further, in terms of the substance of Plaintiffs claims, Defendant Corbett argues that Plaintiffs fail to state a claim under the Full Faith and Credit Clause of the U.S. Constitution (Corbetts Br. V.B.2), and that Plaintiffs have failed to articulate a cognizable claim based on their constitutional right to travel (see id. V.B.3). As detailed below, Defendants arguments fail and their motions to dismiss should be denied.6 B. Defendant Corbett and Defendant Kane Are Subject to This Lawsuit Under Ex parte Young.
Defendant Corbett asserts that this Court lacks jurisdiction because, as a state official, the
Defendants jurisdictional arguments are addressed in this Section, and Defendant Corbetts arguments pertaining to the Full Faith and Credit Clause and the right to travel are addressed in Sections IV.D.3 and E.1, infra, where Plaintiffs argue in support of their motion for summary judgment. 12
suit against him is barred by the Eleventh Amendment.7 See id. V.A.1-2. Under the Eleventh Amendment, States are immune from suit in federal court, unless the State consents to the suit or Congress validly abrogates the States immunity. U.S. Const. amend. XI; see also Edelman v. Jordan, 415 U.S. 651, 663 (1974). Where a plaintiff seeks purely prospective relief for ongoing violations of federal law, the Eleventh Amendment does not deprive a federal court of jurisdiction. See Ex parte Young, 209 U.S. 123 (1908). Pursuant to Ex parte Young, a plaintiff is permitted to sue a state official in his or her official capacity since a suit challenging the constitutionality of a state officials action is not one against the State. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984); see also Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002). To determine the applicability of Ex parte Young, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective. Verizon Md., Inc. v. Pub. Serv. Commn of Md., 535 U.S. 635, 645 (2002) (internal quotation marks and alterations omitted). Plaintiffs here seek prospective injunctive and declaratory relief for an ongoing violation of their constitutional rights. Under the straightforward analysis contemplated by Verizon, Plaintiffs allegations are sufficient to bring this case within the Ex parte Young exception (see Compl. (Dkt. No. 1) 22-23 (articulating prayer for relief)); see also Verizon, 535 U.S. at 645, and Defendant Corbett therefore is not entitled to Eleventh Amendment immunity.
Defendant Kane does not assert Eleventh Amendment immunity. However, the discussion on that point herein pertaining to Defendant Corbett applies equally to Defendant Kane. 13
1.
Both Defendant Corbett and Defendant Kane Have Sufficient Connections to the Enforcement 1704.
In their motions to dismiss, Defendants attempt to distance themselves from 1704, and therefore from this case. See, e.g., Corbetts Br. 12, 15; Kanes Br. 7-8. These attempts are misplaced, as Defendants are unquestionably connected to the enforcement of 1704. a. Defendant Corbetts Connection to 1704
Defendant Corbett is responsible for the enforcement of 1704. As alleged in the Complaint: Defendant Thomas W. Corbett is the Governor of Pennsylvania, and he is being sued in his official capacity as the chief executive officer of Pennsylvania. Pursuant to Article IV, Section 2 of the Pennsylvania Constitution, Governor Corbett and his successors are responsible for the faithful execution of the laws of Pennsylvania, including the laws that exclude same-sex couples from having their marriages recognized within Pennsylvania, 23 Pa. Cons. Stat. 1704. Compl. (Dkt. No. 1) 29. Because of his ultimate responsibility for enforcement, Defendant Corbett is a proper defendant in this action. In fact, Defendant Corbett does not even contend that he lacks the authority to enforce the law or that he does not or will not enforce and/or direct his subordinates to enforce the law. See, e.g., Corbetts Br. V.A. Defendant Corbett cannot give such an
assurance because, as a matter of law, he is responsible for enforcing 1704. See Pa. Const. art. IV, 2 (The supreme executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed.); 71 P.S. 241 (The Governor shall have the power and it shall be his duty . . . [t]o take care that the laws of the Commonwealth shall be faithfully executed.); 71 P.S. 732-301(6) (stating that the Governors General Counsel shall . . . defend the Commonwealth or any executive agency when an action or matter has been referred to the
14
Attorney General and the Attorney General refuses or fails to initiate appropriate proceedings or defend the Commonwealth or executive agency). Beyond his legal responsibilities, Defendant Corbett repeatedly placed himself in the role of defending 1704 against recent challenges. By way of example: Through his General Counsel, Defendant Corbett has sought confirmation from Defendant Kane that his office has authority broad enough to encompass litigation necessary to enforce 1704. Kraeutler Decl., Ex. A, 3 and Attach. 4. Defendant Corbetts Office of General Counsel represents the Secretary of Health in the action filed to enjoin the Montgomery County Register of Wills from issuing marriage licenses to same-sex couples. Kraeutler Decl., Ex. A, 3 and Attach. 5; see also Pa. Dept of Health v. Hanes, No. 379 M.D. 2013 (Pa. Commw. Ct.). In the present action and in Whitewood v. Corbett, No. 13-1861-JEJ (M.D. Pa.) (Jones, J.), Defendant Corbett has retained private counsel (Lamb McErlane PC) to defend 1704. Kraeutler Decl., Ex. A, 3 and Attach. 8.
In light of his legal obligations and his actions to date, Defendant Corbett is integrally connected to and responsible for the enforcement of 1704. He is therefore a proper defendant in this action. b. Defendant Kanes Connection to 1704
Like Defendant Corbett, Defendant Kane is responsible for the enforcement of 1704. As alleged in the Complaint: Defendant Kathleen G. Kane is the Attorney General of Pennsylvania. She and her successors are sued in their official capacity pursuant to the Commonwealth Attorneys Act, 71 P.S. 732-204. Compl. (Dkt. No. 1) 30. Defendant Kane does not claim that the Office of the Attorney General lacks the authority to enforce 1704 or that it will not enforce that law. As a matter of law, Defendant Kane is responsible for enforcing 1704. See Kanes Br. 4 (acknowledging that Defendant Kane is the chief law officer of Pennsylvania); Pa. Const. art. IV, 4.1 (naming the Attorney 15
General as the chief law enforcer); 71 P.S. 732-204(a)(3) (It shall be the duty of the Attorney General to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction.);8 id. at 732-204(c) (requiring the Attorney General to defend the Commonwealth against civil suits). It is true that Defendant Kanes July 11, 2013 press release indicated her reluctance to defend 1704 in Whitewood, No. 13-1861-JEJ. This case may nevertheless proceed against Defendant Kane. See, e.g., HRPT Props. Trust v. Lingle, 715 F. Supp. 2d 1115, 1128 (D. Haw. 2010) (a voluntary decision not to exercise enforcement authority does not erase the existence of that authority and noting that future governors could enforce the statute at issue once the sitting governor left office); Planned Parenthood of Cent. N.J. v. Verniero, 41 F. Supp. 2d 478, 482 (D.N.J. 1998) (suit against New Jersey Attorney General in his official capacity because he was responsible for enforcement of the Act, despite the fact that he declined to defend the Act), affd sub. nom. Planned Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127 (3d Cir. 2000). In light of the foregoing, Defendant Corbett and Defendant Kane are sufficiently connected to 1704 to be proper defendants from the standpoint of Ex parte Youngs construction of the Eleventh Amendment. See Ex parte Young, 209 U.S. at 157 (In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act.); see also Allied Artists Pictures Corp. v. Rhodes, 473 F. Supp. 560 (S.D. Ohio 1979).
8
Defendant Kane argues that her obligations under the Commonwealth Attorneys Act are confined to providing legal advice at the request of the Governor. See Kanes Br. 4-5 (citing 71 P.S. 732-204(a)). Defendant Kane is correct that Section 204(a) in general pertains to legal advice, but subsection (a)(3) contains no such limitation. Even if that subsection were read to pertain to only legal advice, the Attorney General is still obligated to defend the Commonwealth against civil suits by operation of subsection (c). 16
2.
Cases Barring Suit on Eleventh Amendment Grounds Where Other State Officials Are Responsible for and Have Undertaken Acts of Enforcement Are Inapposite.
Defendant Corbett relies on 1st Westco Corp. v. School District of Philadelphia, 6 F.3d 108 (3d Cir. 1993), and Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988), to argue for dismissal, asserting that Plaintiffs have not established any likelihood or potential that the Governor is likely to enforce the law in a manner that would adversely affect Plaintiffs interests. See Corbetts Br. 11. He further points to Lewis v. Rendell, 501 F. Supp. 2d 671 (E.D. Pa. 2007), as an example of a district court following 1st Westco Corp. and Rode. However, 1st Westco Corp., Rode, and Lewis provide only that a general duty to enforce or execute the laws is insufficient under Ex parte Young where other state officials are responsible for, and have undertaken, overt acts of enforcement. See 1st Westco Corp., 6 F.3d at 115; Lewis, 501 F. Supp. 2d at 682.9 Unlike the laws at issue in 1st Westco Corp., Rode, and Lewis, 1704 is self-enforcing and goes beyond the affirmative acts of any particular state official, department, or agency.
9
Additional cases cited by Defendant Corbett are similarly inapposite because they involve challenges to statutes enforced by particular individuals or entities. See, e.g., Womens Emergency Network v. Bush, 323 F.3d 937, 941-42, 949 (11th Cir. 2003) (finding governor was not proper party to lawsuit where challenged statute was administered by the Florida Department of Highway Safety and Motor Vehicles and by local counties); Okpalobi v. Foster, 244 F.3d 405, 409, 421 (5th Cir. 2001) (dismissing governor and attorney general under Ex parte Young where statute provided for enforcement by private parties); Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 324, 331 (4th Cir. 2001) (dismissing governor where Virginias Secretary of Natural Resources and Director of the Department of Environmental Control were more directly responsible for enforcement of the statutes at issue); Childrens Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416-17 (6th Cir. 1996) (finding attorney general lacked sufficient connection under Ex parte Young where Ohio law delegated the enforcement of the challenged statutes to local prosecutors, not the attorney general). Bishop v. Oklahoma, 333 F. Appx 361 (10th Cir. 2009), is the only example Defendant Corbett cites to the contrary; however, Bishop is not binding precedent, in this Circuit, and Plaintiffs respectfully submit that it was wrongly decided. Moreover, in Shell Oil Co. v. Noel, 608 F.2d 208, 212-13 (1st Cir. 1979), the First Circuit recognized that the governor and attorney general may in fact have the power to enforce the statute at issue, but declined to reach the issue because the plaintiff had failed to allege any actual injury sufficient to satisfy the case or controversy requirement of Article III. 17
Plaintiffs seek recognition and respect for their existing marriage, not the right to marry. No state official is specifically tasked with recognizing and respecting an existing marriage. Defendant Corbett is wrong when he states, without citation, that: General authority to enforce the laws of the state as Plaintiffs allege here has never been deemed sufficient to allow suit to be brought against the government official in federal court. Corbetts Br. 10. Because Plaintiffs claims are based on a self-enforcing statute, Allied Artists, 473 F. Supp. 560 (S.D. Ohio 1979), cited to by the Third Circuit in both 1st Westco Corp. and Rode, is directly on point.10 In Allied Artists, the court found that the governors general duty to enforce the law was sufficient to provide the required connection under Ex parte Young: [T]he Act is drafted to be self-enforcing; thus the alleged impact upon plaintiffs is immediate and occurs without the active participation of or enforcement by state officers. In such a context a concrete case or controversy may exist, even absent overt adverse action by named defendants. In the Courts opinion an actual threat of enforcement by state officials is not required for justiciability where, as in this case, the statute is mandatory, selfenforcing, and results in immediate economic injury. Allied Artists, 473 F. Supp. at 570 (involving a constitutional challenge to a self-enforcing law governing the procedures by which distributors and exhibitors of motion pictures contract for the right to do so).11
10
In fact, the quote relied upon by Defendant Corbett and attributed to 1st Westco Corp. quoting Rode, 845 F.2d at 1208, actually originated from Allied Artists, 473 F. Supp. at 568. See Corbetts Br. 11 (quoting the need for a real, not ephemeral, likelihood or realistic potential that the [public officials] connection [to the statute at issue] will be employed against plaintiffs interests).
11
This discussion comes from the section of the courts opinion dealing with whether an actual case or controversy exists; however, this reasoning applies equally to the courts discussion of sovereign immunity under Ex parte Young. Although the Allied Artists court discusses economic injury, noneconomic injury is also sufficient to satisfy the case or controversy 18
Courts have applied Allied Artists in situations analogous to the instant case. See, e.g., Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 864 (8th Cir. 2006) (holding that the governor had some connection with enforcement of a challenged statute that does not require affirmative enforcement by any state official so as to fall within the Ex parte Young exception); Finstuen v. Edmondson, No. 5:04-cv-01152-C, slip. op. at 6 (W.D. Okla. Dec. 7, 2004) (distinguishing 1st Westco Corp. and similar cases because the statute at issue does not provide any means for enforcement, but is directed to the state itself and thus finding its enforcement falls squarely on the shoulders of the governor and attorney general); HRPT Props. Trust, 715 F. Supp. 2d at 1125, 1127 (quoting Ex parte Young, 209 U.S. at 158) (rejecting argument that the governor had Eleventh Amendment immunity, because the statute at issue was self-enforcing and the governor played no role in enforcement: If there is no state official charged with enforcing [the statute], then it stands to reason that Governor Lingle herself is the person with the power to instruct state officials in the executive branch to enforce or to refrain from enforcing the statute; and holding that [t]he fact that the state officer, by virtue of his office, has some connection with the enforcement of the act, is the important and material fact, and whether it arises out of the general law, or is specially created by the act itself, is not material so long as it exists).12
requirement. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 26263 (1977) (It has long been clear that economic injury is not the only kind of injury that can support a plaintiffs standing.). Regardless, Plaintiffs have alleged economic injuries, see Compl. (Dkt. No. 1) 18-19, 23, and, as discussed in Section III.C, infra, Defendants do not challenge Plaintiffs standing on this ground. 12 Further, Defendant Corbett overlooks that governors are often defendants in cases involving facial constitutional challenges to state statutes. See Am. Civil Liberties Union Found. of La. v. Blanco, 523 F. Supp. 2d 476, 481 (E.D. La. 2007) ([T]he Supreme Court has heard many Ex parte Young cases in which the plaintiff sued a governor . . . in his or her official capacity, without the Eleventh Amendment ever being raised as an impediment.); see, also, Van Orden v. 19
3.
Defendants Have Not Identified an Alternate Public Official Who Is a More Appropriate Defendant.
While trying to distance themselves from 1704, both Defendant Corbett and Defendant Kane identify alternate public officials as hypothetical appropriate defendants. However, given the self-enforcing nature of 1704, it is not surprising that neither Defendant Corbett nor Defendant Kane has identified any single public official or combination of public officials who could act to reverse the nullification of Plaintiffs marriage within Pennsylvania. For example, Defendant Corbett and Defendant Kane suggest the Secretary of Health as a potential defendant. See Corbetts Br. 12-13; Kanes Br. 7-8. Plaintiffs, however, are not seeking a marriage The Secretary of Health lacks the
licensethey are already legally and validly married.
authority to recognize Plaintiffs existing marriage as valid or otherwise halt the enforcement of 1704.13 Defendant Kane also suggests the Secretary of Revenue as a potential alternative defendant. See Kanes Br. 8. Much like the Secretary of Health, however, the Secretary of Revenue cannot provide the relief sought here. The Secretary of Revenue is only charged with the authority to take specific actions with respect to the Commonwealths revenue and cannot provide the wholesale recognition of Plaintiffs marriage.14
Perry, 545 U.S. 677 (2005); Locke v. Davey, 540 U.S. 712 (2004); Romer v. Evans, 517 U.S. 620 (1996); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). 13 Defendant Corbett is correct to suggest that the Secretary of Health may be able to provide relief with respect to who is listed as a parent on W.P.s birth certificate. See Corbetts Br. 1213. Listing both parents on the birth certificate alone, however, falls woefully short of providing Plaintiffs the full relief sought: recognition of their marriage within and by the Commonwealth. Moreover, full recognition of Plaintiffs marriage would obviate the need to sue the Secretary of Health to allow both Plaintiffs to be named as parents on W.P.s birth certificate. As mentioned above, however, W.P.s birth certificate was amended after the second-parent adoption was finalized and now lists both Plaintiffs as parents. Barker Decl., Ex. B, 16 and Attach. 4.
14
Nothing herein should be deemed a waiver of the possibility of adding additional defendants (including the Secretaries of Health or Revenue) to this action at a later date. If it becomes apparent that public official(s) other than Defendant Corbett and Defendant Kane can provide some of relief sought, Plaintiffs reserve the right to seek the joinder of additional parties. 20
C.
Plaintiffs Have Standing to Challenge the Unconstitutional Law That Purports to Void Their Existing Marriage.
Defendant Corbett and Defendant Kane further challenge this Courts Article III jurisdiction because they improperly assert that Plaintiffs lack standing to sue them. See
Corbetts Br. V.A.3; Kanes Br. III.A. To establish standing, a plaintiff must show: (1) a concrete, particularized injury-in-fact, which must be actual or imminent, not conjectural or hypothetical; (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that a favorable decision likely would redress that injury. Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137-38 (3d Cir. 2009) (internal quotation marks omitted). Defendant Corbett and Defendant Kane do not argue that Plaintiffs lack a particular injury-in-fact and do not argue that a favorable decision would not redress the injury.15 Rather, Defendants argue that Plaintiffs lack standing because Plaintiffs injuries are not traceable to Defendants. See Corbetts Br. 15 (There is no nexus between the injuries that Plaintiffs [sic] purportedly sustained and any action by Governor Corbett.); Kanes Br. 7 (In their complaint, the Plaintiffs have not identified any specific involvement by the Attorney General in the enforcement of the challenged section of the marriage law, or the marriage law as a whole. Instead, they rely completely upon her general authority under the Commonwealth Attorneys Act.). To establish traceability for purposes of standing to sue a specific defendant, the causal connection [between the defendant and plaintiffs injury] need not be as close as the proximate causation needed to succeed on the merits of a tort claim. Toll Bros., 555 F.3d at 142; see also
15
Plaintiffs have been and continue to be injured in numerous ways because their marriage is not recognized within and by Pennsylvania. See, e.g., Compl. (Dkt. No. 1) 18-23, 27. A favorable decision resulting in the recognition of Plaintiffs marriage would indisputably redress Plaintiffs injuries. 21
Pitt News v. Fisher, 215 F.3d 354, 361 n.4 (3d Cir. 2000). An indirect causal relationship is sufficient for traceability. See Toll Bros., 555 F.3d at 142. Plaintiffs injuries are traceable to Defendants. As discussed above, Defendant Corbett and Defendant Kane have a duty to defend the constitutionality of all laws enacted by the Pennsylvania General Assembly, including 1704. See Section III.B.1.a-b, supra. As a matter of law and fact, Defendant Corbett and Defendant Kane are connected to 1704 and thereby haveat the very minimumthe indirect causal relationship needed to satisfy the standing requirement. See Section III.B.1.a-b, supra; Toll Bros., 555 F.3d at 142. Ultimately, either Defendant could claim to lack even an indirect causal relationship by opting not to enforce it; however, that does not prevent their successors from doing so.16 Furthermore, Defendants Corbett and Kane are actively defending against this lawsuit and neither has conceded in their briefing or in any other way that Plaintiffs extant marriage is valid, recognized, and respected in Pennsylvania.17 D. Baker v. Nelson Does Not Deprive This Court of Subject Matter Jurisdiction.
Relying on Baker v. Nelson, 409 U.S. 810 (1972), Defendant Corbett argues that this Court lacks jurisdiction because the question involveda states definition of marriageis
16
Refusing to enforce the law in one context does not preclude the authority to enforce it in another. Defendant Kanes argument that a dispute against her is not ripe with respect to a tax appeal is of no consequence, as Plaintiffs are not suing Defendant Kane on that basis. Plaintiffs have sued Defendant Kane because they seek recognition of their marriage within and by Pennsylvania.
17
In arguing that Plaintiffs lack standing because of a failure of traceability, Defendant Kane relies on 1st Westco Corp. See Kanes Br. 6-7. Further, Defendant Kane cites to Rode when she argues that Plaintiffs claims fail pursuant to 42 U.S.C. 1983 because, she alleges, the Attorney General has had no involvement in the conduct alleged to have violated Plaintiffs rights that forms the basis of the complaint. Kanes Br. 10-11. Per Section III.B.2, supra, 1st Westco Corp. and Rode are inapplicable where, as here, the statute at issue is self-executing, and per Section III.B.1.b, supra, Defendant Kane is wrong to argue that she has had no involvement with the Pennsylvania law prohibiting the recognition of Plaintiffs marriage. 22
traditionally the province of the states. Corbetts Br. 16. Baker is a one-sentence summary dismissal of an appeal from the Supreme Court of Minnesota in which the U.S. Supreme Court was exercising its appellate review obligation as opposed to its certiorari review authority. Baker is no longer controlling. First, a summary dismissal from the Supreme Court operates as an affirmance on the merits of the judgment below, not as a dismissal for lack of subject matter jurisdiction under Article III.18 It merely prevent[s] 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); see also Hicks v. Miranda, 422 U.S. 332, 346 n.14 (1975). The state court decision in Baker addressed the due process and equal protection implications of Minnesotas refusal to issue a marriage license to a couple of the same sex. See Appellants Jurisdictional Statement at 3, Baker v. Nelson, No. 71-1027 (Oct. Term 1972). The Minnesota Supreme Court rejected an argument that a State engages in impermissible sex discrimination (or violates privacy and due process rights) by declining to issue marriage licenses to same-sex couples. See Baker, 191 N.W.2d at 186-87. The legal questions raised in Baker are distinct from the legal issues raised here. Plaintiffs are not seeking a marriage license because Plaintiffs are already married; Plaintiffs seek to have their existing marriage recognized as valid and respected by the laws of Pennsylvania. Compl. (Dkt. No. 1) 3, 5. This is in contrast to Baker, where the plaintiffs were not married, sought a marriage license and hoped to perform a marriage ceremony in Minnesota.19
18
See In re Kandu, 315 B.R. 123, 136 (Bankr. W.D. Wash. 2004) (recognizing that because Baker came to the Supreme Court under its mandatory appellate jurisdiction, the Court had no discretion to refuse adjudication of the case).
19
Moreover, the Baker plaintiffs did not advance any claims for violations of the Full Faith and Credit Clause or their fundamental right to travel, which are raised here. 23
Second, even if Baker could somehow be read to affect Plaintiffs due process and equal protection claims, it is no longer controlling.20 See Hicks, 422 U.S. at 344 ([I]f the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.) (internal quotation marks omitted; emphasis added); Lecates v. Justice of the Peace Court No. 4, 637 F.2d 898, 904 (3d Cir. 1980) ([I]ndications that there have been doctrinal developments since the summary action will relieve a lower court from the duty to adhere to a summary disposition.). In the forty years since Baker, the Supreme Court (in addition to holding that sex is a quasi-suspect classification, Craig v. Boren, 429 U.S. 190, 197 (1976), has (1) recognized that the U.S. Constitution protects individuals from discrimination on the basis of sexual orientation, Romer, 517 U.S. at 635-36; (2) found it unconstitutional for a State to demean [the] existence [of gay men and lesbians] or control their destiny by making their private sexual conduct a crime, Lawrence v. Texas, 539 U.S. 558, 578 (2003); and (3) held that a university may require student groups to comply with the schools nondiscrimination policy that forbids discrimination on the basis of sexual orientation. Christian Legal Soc. Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971, 2990-91 (2010). Further, there have been major developments in federal constitutional jurisprudence on marriages of same-sex couples. The most notable of these is the decision in Windsor that Section 3 of DOMA, defining marriage as being between one man and one woman, is unconstitutional. Windsor, 133 S. Ct. at 2693-96.
20
Defendant Corbett overlooks the instances wherein courts recognize that Baker is no longer controlling. See Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005) (Doctrinal developments show it is not reasonable to conclude the questions presented in the Baker jurisdictional statement would still be viewed by the Supreme Court as unsubstantial.), vacated on other grounds, 447 F.3d 673 (9th Cir. 2006); In re Kandu, 315 B.R. at 138 (Baker is not binding precedent.); Garden State Equal. v. Dow, No. Civ.A. MER-L-1729-11, 2012 WL 540608, at *4 (N.J. Super. Ct. Feb. 21, 2012) (The United States Supreme Court has decided several pertinent cases both contemporaneous with Baker and more recently which indicate that the issue of denying same-sex couples access to the institution of marriage would not be considered unsubstantial today.). 24
Two dissenting opinions in Windsor even contemplated future jurisprudential developments regarding marriages of same-sex couples.21 Therefore, neither the Eleventh Amendment, Article III, nor Baker, deprive this Court of subject matter jurisdiction. Accordingly, Defendants Motions to Dismiss should be denied. IV. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR CLAIMS. A. Motion for Summary Judgment Standard
Summary judgment is appropriate where, as here, there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be denied when there is a genuine issue of material fact. Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if proof of its existence or nonexistence might affect the outcome of the litigation, and a dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the nonmoving party who must
21
According to Chief Justice Roberts, the Supreme Court may in the future have to resolve challenges to state marriage definitions affecting same-sex couples. Windsor, 133 S. Ct. at 2697 (Roberts, C.J., dissenting). According to Associate Justice Scalia: I do not mean to suggest disagreement . . . that lower federal courts and state courts can distinguish todays case when the issue before them is state denial of marital status to same-sex couplesor that this Court could theoretically do so. Id. at 2709 (Scalia, J., dissenting) (emphasis in original). Consistent therewith, in addition to Windsor, U.S. district courts have recently ruled on issues of marriages of same-sex couples. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (N.D. Cal. 2010); Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6697874, at *8-9, *29 (D. Utah Dec. 20, 2013). Further, federal courts, including another U.S. district court in Pennsylvania, are presently hearing cases about marriages of same-sex couples. See Whitewood, No. 13-1861-JEJ; Latta v. Otter, No. 13-cv-00482 (D. Idaho); Bostic v. Rainey, No. 2:13-cv-395 (E.D. Va.). 25
set forth specific facts showing that there is a genuine issue for trial. Id. at 250. Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact. Boykins v. Lucent Techs., Inc., 78 F. Supp. 2d 402, 408 (E.D. Pa. 2000); see also Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006) ([T]he non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. omitted). B. Section 1704 Violates the Fourteenth Amendments Due Process Clause Because It Impermissibly Deprives Plaintiffs of a Protected Liberty Interest in Their Existing Marriage. 1. The Due Process Clause of the Fourteenth Amendment Protects the Fundamental Right to Have an Existing Marriage. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides that no State shall deprive any person of life, liberty, or property, without due process of law. U.S. Const. amend. XIV. The Supreme Court has held, however, the Due Process Clause guarantees more than fair process, Washington v. Glucksberg, 521 U.S. 702, 719 (1997), and provides heightened protection against government interference with certain fundamental rights and liberty interests, including the rights to marry; to have children; to direct the education and upbringing of ones children; to marital privacy; to use contraception; to bodily integrity; and to abortion. Id. at 720 (internal citations omitted); see also Reno v. Flores, 507 U.S. 292, 301-02 (1993); Casey, 505 U.S. at 846 (finding our constitutional tradition protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education); id. at 846 (recognizing that protection of a womans decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment); Lawrence, 539 26 Anderson, 477 U.S. at 249-50 (citations
U.S. at 578 (stating that people in same-sex relationships may seek autonomy for the same reasons identified in Casey, just as heterosexual persons do); id. (acknowledging gay peoples liberty to engage in private sexual conduct; It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. (quoting Casey, 505 U.S. at 847)). In Windsor, the Supreme Court held that same-sex spouses have a protected liberty interest in their marriages and that deprivation of this interest without adequate justification violates due process rights. See 133 S. Ct. at 2695. Windsor is consistent with cases stretching back for decades in which the Court has held that spousal relationships, like parent-child relationships, are among those intimate family bonds whose preservation must be afforded a substantial measure of sanctuary from unjustified interference by the State. Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984); see also Glucksberg, 521 U.S. at 720 (recognizing marital privacy as a fundamental liberty interest); M.L.B. v. S.L.J., 519 U.S. 102, 105 (1996) (statute conditioning appeal from termination of parental rights on prepayment of record preparation fees violated both due process and equal protection rights in denying the mother the opportunity to defend against the States destruction of her family bonds); Boddie, 401 U.S. at 382-83 (due process and equal protection rights implicated in adjustment of [the] fundamental human relationship of marriage); Loving v. Virginia, 388 U.S. 1, 12 (1967) (reversing married interracial couples convictions for violations of anti-miscegenation statutes and striking statute voiding interracial marriages); Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (holding marriage is a relationship lying within the zone of privacy created by several fundamental constitutional guarantees).
27
Plaintiffs have the same constitutionally protected liberty interest in their family and marital relationships as did the plaintiff in Windsor and the other cases involving government interference with those intimate relationships. Like the plaintiff in Windsor, Plaintiffs in this case are already legally married. Accordingly, the issue presented here is not whether Plaintiffs have a constitutional right to enter into a marriage in Pennsylvania, but rather whether Pennsylvania can deprive them of their existing marital status by treating their legal marriage as a nullity.22 Pennsylvanias refusal to recognize Plaintiffs valid marriage from Massachusetts violates the Fourteenth Amendments Due Process Clause for numerous reasons, including those relied on by the Supreme Court in concluding that Section 3 of DOMA violated the Fifth Amendments Due Process Clause. Like Section 3 of DOMA, 1704 treats marriages of samesex couples as if they did not exist and the married individuals as single. As with the DOMA, the essence of 1704 is to interfere with the equal dignity of same-sex marriages. Windsor, 133 S. Ct. at 2693. The operation of 1704 confirms this purpose; it creates a system-wide enactment with no identified connection to any particular area of state law. Id. at 2694. Section 1704 has the same avowed purpose and practical effect as Section 3 of DOMA, which is to impose a disadvantage, a separate status, and a stigma on married same-sex couples by denying them the benefits and responsibilities that flow from Pennsylvanias recognition of the valid
22
A persons protected interest in an existing marital relationship is distinct from a persons fundamental right to marry in the first instance. See Zablocki v. Redhail, 434 U.S. 374, 397 n.1 (1978) (Powell, J., concurring in the judgment) (noting difference between a sphere of privacy or autonomy surrounding an existing marital relationship into which the State may not lightly intrude and regulation of the conditions of entry into . . . the marital bond). This is one reason that the Supreme Court in Windsor could find DOMA Section 3s federal non-recognition of existing marriages unconstitutional without addressing whether the Fourteenth Amendment compels the States to allow same-sex couples to join in marriage. 28
marriages of couples who marry in other states. See Kraeutler Decl., Ex. A, 3 and Attachs. 2 & 3 at 2017-23; 2454. As set forth above, Pennsylvanias unilateral voiding of Plaintiffs marriage constitutes an extraordinary disruption of and burden on their marriage and family life, affecting their stability, security and dignity just as severely as the federal non-recognition law at issue in Windsor. Like Section 3 of DOMA, 1704 touches many aspects of married and family life, from the mundane to the profound, and burdens the lives of same-sex married couples . . . by reason of government decree, in visible and public ways. Windsor, 133 S. Ct. at 2694. Like DOMA, 1704 was enacted to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages. Id. at 2693. Pennsylvanias recognition ban is also an unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage [that] here operates to deprive same-sex couples of the benefits and responsibilities that come with the [legal] recognition of their marriages. Id. at 2693. The purpose and effect of 1704 is to exclude individuals who are in lawful same-sex marriages from the protections offered by Pennsylvania to other married persons. The law therefore violates the Due Process Clause of the Fourteenth Amendment. See id. This burden on Plaintiffs liberty interest cannot withstand the careful consideration required by discriminations of an unusual character, Windsor, 133 S. Ct. at 2692 (quoting Romer, 517 U.S. at 633), let alone the heightened scrutiny that typically accompanies a law imposing a direct and substantial burden on an existing marital or family relationship. See, e.g., Griswold, 381 U.S. at 485-86 (law barring use of contraceptives by married couples could not be upheld where it was not supported by sufficiently important state interests and was not
29
closely tailored to effectuate only those interests); see also M.L.B., 519 U.S. at 120-21 ([W]e inspect the character and intensity of the individual interest at stake, on the one hand, and the States justification for its exaction, on the other.). While heightened scrutiny is appropriate given the state interests underlying 1704, which are addressed below, this is beside the point. Section 1704, like the federal law that inspired it, fails under any level of scrutiny. Like the DOMA, the Commonwealths ban is a deviation from the traditional rule of recognition of valid state marriages with an avowed purpose of ensuring that legally married same-sex couples are denied benefits and protections that are provided to all other married couples. As with the DOMA, both of these factors are strong evidence of a law having the purpose and effect of disapproval of that class. Windsor, 133 S. Ct. at 2693. Of course, when the purpose of a law is to disadvantage a group, it can never constitute a legitimate basis for lawmaking. Romer, 517 U.S. at 634-35. In sum, as with the federal DOMA, 1704 is a deprivation of an essential part of the liberty protected by the [Constitutions due process guarantee]. Windsor, 133 S. Ct. at 2692. 2. Section 1704 Imposes a Severe Burden and Inflicts Severe Harms on Plaintiffs and Other Married Same-Sex Couples and Their Families. Section 1704 causes serious harm to families and society by disregarding the longstanding, deeply rooted and near-universal rule that a marriage that is validly entered into by a couple living in one State will be recognized when the couple travels or relocates to another State. By excluding married same-sex couples from this rule, Pennsylvania has created an untenable situation where Plaintiffs are legally married in the State where they wed, legally married in many other States and legally married for purposes of most federal protections and responsibilitiesbut while they are domiciled in Pennsylvania, Plaintiffs legal marriage is
30
deemed void. The harms to Plaintiffs and others caused by this extraordinary deprivation are significant, continuing and cumulative. Marriage provides a means under Pennsylvania law whereby two adults can establish a family unit that must be legally respected by the Commonwealth. Pennsylvania provides
married couples with comprehensive protections and responsibilities that enable them to make a legally binding commitment to one another and to any children they may have, and to be treated as a family by the law. See Eisenberg v. Eisenberg, 160 A. 228, 230 (Pa. Super. Ct. 1932) (It has generally been recognized that marriage is something more than an ordinary civil contract. It creates a status of vast importance to the social fabric, as well as to the individuals concerned. The rules governing the rescission of an ordinary contract do not obtain in the annulment of a marriage contract; it cannot be dissolved by mutual consent and it is not a contract within the meaning of the statute of frauds. Principles are involved, based on vital questions of public policy rather than on abstract contractual rights. (internal citation omitted)); see also In re Estate of Matson, 542 A.2d 147, 152 (Pa. Super. Ct. 1988) ([T]he common-law . . . teaches that marriage creates a unified holding of property.). Virtually all other couples who legally marry in another State and then move to Pennsylvania are treated as married in Pennsylvania and automatically obtain all protections and responsibilities afforded to other married couples in Pennsylvania. For the entire class of married same-sex couples, however, Pennsylvania prohibits recognition of their marriages and creates a statutory barrier that excludes them from this network of legal protections and responsibilities. In effect, the Commonwealth strips them of their marital status and of all the marital protections and obligations that they had enjoyed before moving to Pennsylvania.
31
Moreover, Pennsylvanias refusal to recognize same-sex marriages may operate to limit federal marital protections that are otherwise available to all married persons. For example, spouse-based benefits under the Social Security laws may be unavailable unless Pennsylvania respects these marriages. See Lee v. Astrue, Civil No. 10125GFVT, 2012 WL 912733, at *3 (E.D. Ky. Mar. 15, 2012) (noting that the federal governments social security program . . . defer[s] to the states definitions of marriage insofar as doing so is essentially the operation of federalism). In addition to excluding Plaintiffs from the hundreds of tangible rights, benefits, and protections that are provided to other legally married couples in Pennsylvania23 and jeopardizing eligibility for certain federal protections, 1704 also injures Plaintiffs and their family by stripping them of the legal and social recognition, dignity, and protection that marriage provides. Windsor, 133 S. Ct. at 2692. Marriage is more than the sum of the concrete legal rights and obligations that it provides, as important as those are. It is recognized within our society as a highly protected and respected family status of immense import. Id. Marriage conveys the depth and seriousness of a couples commitment to one another and instructs others to respect the couples privacy,
23
See e.g., 20 Pa. Cons. Stat. Ann. 305(b) (providing for a right to dispose of the remains of a deceased spouse); 21 Pa. Cons. Stat. Ann. 2102 (providing the right to inherit through intestate succession); 20 Pa. Cons. Stat. Ann. 3121 (providing the right to claim a family exemption for inherited property); 72 P.S. 9116(a)(1.1)(ii), 9116(a)(3) (providing the right to receive inherited property at a Pennsylvania inheritance tax rate of 0% versus 15%); 20 Pa. Cons. Stat. Ann. 5461(d)(1)(i) (providing the right to make medical decisions for an incapacitated spouse); 23 Pa. Cons. Stat. Ann. 3501, 3502 (providing the equitable division of marital property in a divorce action); 23 Pa. Cons. Stat. Ann. 4324 (providing the right to payment of spousal medical support for health care expenses); 42 Pa. Cons. Stat. Ann. 5913 (providing for spousal privilege in a criminal proceeding); 42 Pa. Cons. Stat. Ann. 5914 (providing for the confidentiality of communications between spouses); 43 P.S. 802(b) (providing for unemployment compensation where an individual leaves a job to follow a spouses employment). 32
dignity, and autonomy and the integrity of their family relationship. These intangible protections are especially important for children, who benefit from the stability and social support that marriage provides. See id. at 2694. Like the federal DOMA, 1704 tells [Plaintiffs], and all the world, that their otherwise valid marriage[] [is] unworthy of . . . recognition. Id. This places Plaintiffs and other same-sex couples in an unstable position of being in a second-tier marriage.24 Id. C. Section 1704 Violates the Fourteenth Amendment Because It Impermissibly Deprives Plaintiffs Of Equal Protection Under the Law. 1. Section 1704 is Unconstitutional Under Any Standard of Review.
The Fourteenth Amendments Equal Protection Clause provides that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike. Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985) (quoting U.S. Const. amend. XIV); see also Plyler v. Doe, 457 U.S. 202, 216 (1982). As a general rule, courts will address the propriety of laws under the Equal Protection Clause through a rational basis review. See Heller v. Doe, 509 U.S. 312, 319-20 (1993). Under such an analysis, laws will be upheld when the government differentiates among persons for a reason that bears a rational relationship to a legitimate governmental interest. Id. While rational basis review is the most deferential form of judicial review, it is not meant to be toothless. Schweiker v. Wilson, 450 U.S. 221, 234 (1981) (quoting Mathews v. Lucas, 427 U.S. 495, 510 (1976)). Some objectives are not legitimate state
24
Additionally, Plaintiffs property interests as protected by the Due Process Clause of the Fourteenth Amendment are equally implicated. See U.S. Const. amend. XIV. Pennsylvania purports to void Plaintiffs marriage without their consent or any process. In doing so, Pennsylvania purports to dives Plaintiffs of all the incidents of marriage that vested in them when their marriage was solemnized. These interests include Plaintiffs property rights. See n.23, supra. This by no way is an exhaustive list of the ways Plaintiffs property interests are implicated by 1704. 33
interests and legislation based there upon will fail even under a rational basis review. See Romer, 517 U.S. at 632-33; Cleburne, 473 U.S. at 446-47; U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 534 (1973). When addressing laws that impact members of a class that historically has been the object of discriminationrace, alienage, nationality, sex, and illegitimacythe Supreme Court has required a higher degree of justification, either strict or intermediate scrutiny. See generally United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). Under intermediate
scrutiny, the government must demonstrate that the classification is substantially related to an important governmental objective. See United States v. Virginia, 518 U.S. 515, 532-33 (1996) (citations omitted). Under the strict scrutiny test the government must demonstrate a compelling need for the different treatment and that the provision in question is narrowly tailored to achieve its objective. See McLaughlin v. Florida, 379 U.S. 184, 192 (1964). While it is appropriate to analyze 1704 under a heightened standard of review, 25 such analysis is unnecessary here. Regardless of whether heightened scrutiny is applied, 1704
25
See Glucksberg, 521 U.S. at 719-20; see also Zablocki, 434 U.S. at 388-91. Because there is no controlling law in the Third Circuit regarding the appropriate level of scrutiny for classifications based on sexual orientation, the Court is free to determine whether heightened scrutiny is applicable here. When Lawrence, 539 U.S. at 578, overruled Bowers v. Hardwick, 478 U.S. 186 (1986), lower courts were left to determine whether classifications based on sexual orientation should receive heightened scrutiny by applying criteria mandated by the Supreme Court. As the Second Circuit noted in Windsor v. United States: The Supreme Court uses certain factors to decide whether a new classification qualifies as a [suspect or] quasi-suspect class. They include: A) whether the class has been historically subjected to discrimination; B) whether the class has a defining characteristic that frequently bears [a] relation to ability to perform or contribute to society; C) whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group; and D) whether the class is a minority or politically powerless. 699 F.3d 169, 181 (2d Cir. 2012), affd, United States v. Windsor, 133 S. Ct. 2675 (2013) (quoting Bowen v. Gilliard, 483 U.S. 587, 602 (1987); Cleburne, 473 U.S. 440-41). 34
violates equal protection and due process guarantees. See IV.B, supra. Section 1704 creates two categories of couples who married out-of-state: opposite-sex couples, whose marriages are almost universally recognized in Pennsylvania, and same-sex couples, whose marriages are categorically denied such recognition. As in Windsor, categorically denying recognition of a same-sex couples marriage and treating it as a nullitysimply because it is a marriage of a same-sex coupleflies in the face of both guarantees. Windsor, 133 S. Ct. at 2695. In Windsor, the Court held that DOMAs targeting of that class required careful consideration under both due process and equal protection review for two reasons: first, because the statute departed from the federal governments longstanding practice of deferring to States to determine marital status; and second, because it did so in order to subject a particular group of married couples to unequal treatment. Id. at 2692-93, 2694 (holding that DOMAs principal effect is to identify a subset of state-sanctioned marriages and make them unequal). The same equal protection analysis
applies here where 1704 requires Pennsylvania to depart from its longstanding recognition of valid marriages from other States. Accordingly, even if this Court reviews 1704 under the rational basis standard rather than careful review, it would fail. Typically, laws will be upheld when the government differentiates among persons for a reason that bears a rational relationship to a legitimate governmental interest. Heller, 509 U.S. at 319-20. Such review is hardly toothless.
Schweiker, 450 U.S. at 234 (quoting Mathews, 427 U.S. at 510). Rational basis review is a two-pronged test. First, a laws purpose must be legitimate. Cleburne, 473 U.S. at 448. The Court must take care to ensure that a laws justification does not rely on factual assumptions that exceed the bounds of rational speculation. Heller, 509 U.S. at 320 (speculation, while permissible, must be rational). A classification is not legitimate when
35
it is drawn for the purpose of disadvantaging the group burdened by the law. Romer, 517 U.S. at 633; see also Windsor, 133 S. Ct. at 2693; Cleburne, 473 U.S. at 450; Moreno, 413 U.S. at 534. The Supreme Court invoked this principle in Windsor, holding DOMA violated equal protection principles because the purpose and practical effect of the law . . . [was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages. Windsor, 133 S. Ct. at 2693. The Court explained that the statute was not sufficiently connected to a legitimate governmental purpose because its interference with the equal dignity of samesex marriages . . . was more than an incidental effect of the federal statute. It was its essence. Id. The Supreme Court has sometimes described this impermissible purpose as animus or a bare . . . desire to harm a politically unpopular group. Id. at 2693; Romer, 517 U.S. at 633; Cleburne, 473 U.S. at 447; Moreno, 413 U.S. at 534. But an impermissible motive need not appear as malicious ill will. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring). It can also take the form of negative attitudes, Cleburne, 473 U.S. at 448; fear, id.; irrational prejudice, id. at 450, or some instinctive mechanism to guard against people who appear to be different in some respects from ourselves, Garrett, 531 U.S. at 374 (Kennedy, J., concurring)). And finally, even without direct evidence of discriminatory intent, the absence of any logical connection to a legitimate purpose (the second prong) can lead to an inference of an impermissible intent to discriminate. See Romer, 517 U.S. at 632
(reasoning that the laws sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects); Cleburne, 473 U.S. at 448-50 (reasoning that because a home for developmentally disabled
36
adults posed no threat to the citys interests other than those also posed by permitted uses, requiring a special zoning permit in this case appears to us to rest on an irrational prejudice). Second, even when the government offers an ostensibly legitimate purpose, the Court must examine whether the classification furthers the claimed objective. [E]ven in the ordinary equal protection case calling for the most deferential of standards, [the Court] insist[s] on knowing the relation between the classification adopted and the object to be attained. Romer, 517 U.S. at 632. [S]ome objectives . . . are not legitimate state interests and, even when a law is justified by an ostensibly legitimate purpose, [t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. Cleburne, 473 U.S. at 446-47. Sometimes a statutes connection to a claimed purpose is too attenuated to rationally advance the asserted interest. Id. at 446; see, e.g., Moreno, 413 U.S. at 535-36 (invalidating law on rational basis review because even if we were to accept as rational the Governments wholly unsubstantiated assumptions concerning [hippies] . . . we still could not agree with the Governments conclusion that the denial of essential federal food assistance . . . constitutes a rational effort to deal with these concerns); Eisenstadt v. Baird, 405 U.S. 438, 448-49 (1972) (invalidating law on rational basis review because, even if deterring premarital sex is a legitimate governmental interest, the effect of the ban on distribution of contraceptives to unmarried persons has at best a marginal relation to the proffered objective). This search for a meaningful connection between a classification and the asserted governmental interest also provides an additional safeguard against intentional discrimination. As the Supreme Court has explained, [b]y requiring that the classification bear a rational relationship to an independent and
37
legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Romer, 517 U.S. at 633. The contemporaneous arguments for 1704, as well as arguments in favor of the law that could be contrived post hoc, each fail rational basis review. 2. Pennsylvanias Contemporaneous Arguments for the Passage of 1704
The legislative history of 1704 presents six state interests: (1) codify the majority of Pennsylvanians moral disapproval of same-sex relationships; (2) protect the traditional institution of marriage; (3) avoid placing an unfunded mandate on private businesses to provide benefits to same-sex spouses; (4) conserve limited state resources and protect the public fisc; (5) avoid the economic dislocations that would result from sham same-sex marriages (i.e., marriages entered into by heterosexuals purely for financial gain); and (6) protect children. Kraeutler Decl., Ex. A, 3 and Attachs. 2 & 3 at 2017-23; 2454. All of the state interests supported in the legislative history or contemporaneously proffered with the enactment of 1704 are illegitimate and/or are not rationally furthered by the classification drawn by 1704. The Commonwealths interest in protecting the traditional institution of marriage was cited when enacting 1704. See Kraeutler Decl., Ex. A, 3 and Attach. 2 at 2017 (statement of Rep. C. Allan Egolf). However, [t]radition alone . . . cannot form an adequate justification for a law. . . . Instead, the government must have an interest separate and apart from the fact of tradition itself. Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 993 (N.D. Cal. 2012) (internal citations omitted); see also, Williams v. Illinois, 399 U.S. 235, 239 (1970) ([N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack . . . .). Moreover, voiding existing marriages between same-sex couples within the Commonwealth does not preserve the 38
traditional institution of marriage but, rather, reframes the Commonwealths moral disapproval of the marriages of same-sex couples. See Lawrence, 539 U.S. at 601 (Scalia, J., dissenting) ([P]reserving the traditional institution of marriage is just a kinder way of describing the States moral disapproval of same-sex couples.). The General Assembly also purported to justify 1704 as a means of protecting private businesses from an unfunded mandate that they provide benefits to same-sex spouses. See Kraeutler Decl., Ex. A. 3 and Attach. 2 at 2017 (statement of Rep. C. Allan Egolf). This justification could support any legislation intended to limit the number of marriages in Pennsylvania. The statute does not achieve that objective in any meaningful way, any more than would an annual cap on the number of marriage licenses issued in the Commonwealth. Instead, it creates a small arbitrary class of spouses to whom businesses may deny spousal benefits. But see Romer, 517 U.S. at 634-35 ([A] bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. (quoting Moreno, 413 U.S. at 534)). The General Assembly asserted an interest in conserving limited state resources and protecting the public fisc that would bear the brunt of the irrationally feared glut of same-sex divorces that might follow. See Kraeutler Decl., Ex. A. 3 and Attach. 2 at 2017 (statement of Rep. C. Allan Egolf). Again, however, this simply reframes the General Assemblys moral disapproval of same-sex marriages (i.e., opposite-sex couples are free to marry and divorce as many times as they please, but permitting a comparatively small number of same-sex couples to marry will create an undue burden on the judicial system). Any denial of benefits to any group will always save resources, so the Commonwealth must do more than articulate a desire to cut costs; it must justify why it chose a particular group to bear the burdens of cost-cutting, and do more than justify its classification with a concise expression of an intention to discriminate.
39
Plyler, 457 U.S. at 227.
Moreover, in this instance, 1704 actually burdens the
Commonwealths resources. Because Pennsylvania courts already hear disputes between samesex couples in the areas of child custody, child support and real estate through partition and contract disputes, one same-sex divorce that resolved each of these matters would actually relieve the need for several actions in various courts. The General Assembly also expressed concern that the tax breaks and various other governmental benefits that same-sex couples would receive were Pennsylvania to recognize outof-state same-sex marriages would prove a financial drain on the Commonwealth. See Kraeutler Decl., Ex. A. 3 and Attach. 2 2017 (statement of Rep. C. Allan Egolf). While protecting the public fisc is a legitimate state interest, it is plainly irrational for the General Assembly to purport to save money by prohibiting the recognition of all same-sex marriages while doing nothing to limit or reduce the number of opposite-sex marriages in order to save money. Instead, this differential treatment only dresses up the General Assemblys moral disapproval of same-sex marriages. See Shapiro v. Thompson, 394 U.S. 618, 633 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974) ([A State] must do more than show that denying welfare benefits to new residents saves money.); see also Windsor, 133 S. Ct. at 2695 (finding moral disapproval of same-sex couples and relationships is not a legitimate constitutional justification for legislation); Lawrence, 539 U.S. at 571 (same); Romer, 517 U.S. at 634-35 (same). Additionally, the General Assembly cited its interest in avoiding the economic dislocations that would result from sham same-sex marriages. See Kraeutler Decl., Ex. A., 3 and Attach. 3 at 2454 (statement of Sen. Roy C. Afflerbach). There is no rational basis for this assertion. Gay and lesbian people are no more likely than heterosexual people to enter into sham
40
marriages, and there is no apparent reason why a sham same-sex marriage would be any more effective or desirable than a sham opposite-sex marriage. Furthermore, this alleged justification makes no sense when a couple has already been legally married elsewhere. Refusing to
recognize an extant out-of-state marriage has no bearing on whether a sham marriage occurs within Pennsylvania. Finally, the Commonwealth undoubtedly has an interest in protecting children. To that end, Pennsylvania has a long history of recognizing family relationships in cases involving children that extend beyond the traditional notion of family as consisting of two married parents and their natural-born children. See, e.g., L.S.K. v. H.A.N., 813 A.2d 872, 878 (Pa. Super. Ct. 2002).26 This broad recognition includes permitting single individuals as well as opposite-sex and same-sex couples to adopt children. Adoption of R.B.F., 803 A.2d at 1195. And, as evidenced by Pennsylvania statutory and decisional law, the Commonwealths interest in children has often been cited as a good reason to recognize marriages and thereby provide legitimacy to children.27 Where Pennsylvania facilitates parenthood for same-sex couples, without regard to biological ties, gender, or marital status, any suggestion that child welfare supports 1704s ban on the recognition of same-sex marriage defies rationale and reality. See
26
See e.g., T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001) (affirming in loco parentis standing in a custody case for a former same-sex partner who parented a child); Jones v. Jones, 884 A.2d 915, 919 (Pa. Super. 2005), app. denied, 912 A.2d 838 (Pa. 2006) (awarding primary physical custody to an in loco parentis party over a biological parent); Jacob v. Shultz-Jacob, 923 A.2d 473 (Pa. Super. 2007) (assessing child support obligations between three parties who had parented the children); Ferguson v. McKiernan, 596 Pa. 78 (2007) (known sperm donor contracts are legally enforceable, even as to a child with a single parent).
27
[G]enerally, a child conceived or born during the marriage is presumed to be the child of the marriage; this presumption is one of the strongest presumptions of the law of Pennsylvania. See Brinkley v. King, 248 701 A.2d at 179 (Pa. 1997) citing, John M. v. Paula T., 571 A.2d 1380, 1388-89 (Pa. 1990)); see also, 23 Pa. C.S.A. 5102(b). This presumption arose (a) to protect marital integrity and (b) to prevent a child from being labeled a bastard child, a classification that carried both a social and a legal stigma. E.W. v. T.S., 2007 916 A.2d 1197, 1201-03 (2007). 41
Heller, 509 U.S. at 321 (The Supreme Court of the United States explained even the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation). Moreover, the recognition of existing same-sex marriages will have no impact whatsoever on the decision by opposite-sex couples to marry, divorce, cohabit [or] have children outside of marriage . . . . Perry, 704 F. Supp. 2d at 971. Section 1704 therefore has no rational relationship or plausible connection to improving the welfare of children. See Romer, 517 U.S. at 621 (The Amendment is at once too narrow and too broad . . . .). The only real impact 1704 has on children is to deprive the children of same-sex married couples of the dignity and material benefits that flow from the official recognition of their families. Justifications of this kind cannot survive under any level of scrutiny. Section 1704 must accordingly be stricken as a violation of the Equal Protection Clause of the Fourteenth Amendment. 3. No Legitimate Interest Overcomes the Primary Purpose and Practical Effect of 1704 to Disparage and Demean Same-Sex Couples and Their Families.
Because there is no rational connection between the recognition ban and any asserted state interest, this Court can conclude that 1704 violates equal protection without even considering whether it was motivated by an impermissible purpose. Yet the complete lack of a rational connection between the recognition ban and any interest asserted by the Commonwealth also strongly supports the conclusion that 1704 was passed because of, not in spite of, the harm it would inflict on married same-sex couples. Thus, even if it were possible to hypothesize a legitimate state interest that is rationally connected to 1704, the law would still deny Plaintiffs equal protection. No hypothetical justification can overcome the unmistakable primary purpose
42
and practical effect of 1704, which is to disparage and demean the dignity of same-sex couples in the eyes of the Commonwealth and the wider community. See Windsor, 133 S. Ct. at 2692. The Supreme Court in Windsor recently reaffirmed that when the primary purpose and effect of a law is to harm an identifiable group, the fact that the law may also incidentally serve some other neutral governmental interest cannot save it from unconstitutionality. In defending the constitutionality of DOMA, the Bipartisan Legal Advisory Group (BLAG) argued that the statute helped serve a variety of federal interests in promoting efficiency and uniformity, as well as the same sorts of interests addressed above. According to BLAGs merits brief: Congress could rationally decide to retain the traditional definition for the same basic reasons that states adopted the traditional definition in the first place and that many continue to retain it: There is a unique relationship between marriage and procreation that stems from marriages origins as a means to address the tendency of opposite-sex relationships to produce unintended and unplanned offspring. There is nothing irrational about declining to extend marriage to samesex relationships that, whatever their other similarities to opposite-sex relationships, simply do not share that same tendency. Congress likewise could rationally decide to foster relationships in which children are raised by both of their biological parents. See BLAG Merits Br., United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307), 2013 WL 267026, at *21. But the Supreme Court held that none of BLAGs rationalizations could save the law. The Court explained that [t]he principal purpose [of DOMA was] to impose inequality, not for other reasons like governmental efficiency, and no legitimate purpose overcomes the purpose and effect to disparage and injure same-sex couples and their families. Windsor, 133 S. Ct. at 2694, 2696; see also Lawrence, 539 U.S. at 580 (OConnor, J., concurring) (When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.); Vance v. Bradley, 440 U.S. 93, 97 (1979) (rational basis review is deferential absent some reason to infer antipathy). 43
It is indisputable that Pennsylvanias recognition ban was enacted because of, not in spite, of its adverse effect on same-sex couples. The historical background of the law reflects a targeted attempt to exclude married same-sex couplesthis exclusion was not a mere side effect of some broader public policy. Cf. Windsor, 133 S. Ct. at 2693 (examining historical context of DOMA); see generally Arlington Heights, 429 U.S. at 266-67 (explaining that historical background . . . is one evidentiary source [of legislative intent], particularly if it reveals a series of official actions taken for invidious purposes). Section 1704 was enacted at a time when many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. Windsor, 133 S. Ct. at 2689. Section 1704 did not simply represent a failure to include same-sex couples within the broader public policies advanced by marriage; it was part of a specific, targeted effort to exclude same-sex couples at a time when same-sex couples were beginning to seek to join in marriage. Section 1704 brands the valid out-of-state marriages of same-sex couples as unworthy of equal dignity and respect. The inescapable practical effect of 1704 is to impose a disadvantage, a separate status, and so a stigma upon same-sex couples in the eyes of the Commonwealth and the broader community, and thus diminish[] the stability and predictability of [the] basic personal relations of married same-sex couples while also demean[ing] the couple, whose moral and sexual choices the Constitution protects. Id. at 2693-94 (citing Lawrence, 539 U.S. 558). That official statement of inequality in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. Lawrence, 539 U.S. at 575. The unmistakable intent of 1704 is to impose inequality on gay people and their intimate relationships. As noted above, the recognition ban is not rationally related to any
44
legitimate purpose. But even if there were a rational connection to the recognition ban and some legitimate purpose, that incidental connection could not overcome[] the purpose and effect to disparage and to injure married same-sex couples and their families. Windsor, 133 S. Ct. at 2696. D. Section 1704 Violates the Full Faith and Credit Clause.
On February 11, 2005, the Commonwealth of Massachusetts recorded a certificate of marriage between Cara Palladino and Isabelle Barker that was solemnized on February 10, 2005. Kraeutler Decl., Ex. A, 3 and Attach. 1. Plaintiffs marriage certificate is an official record that they have undertaken a marriage ceremony and are married. See Mass. Gen. Laws Ann. ch. 207, 28, 45. The Constitution requires that: Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State. And the Congress may by general laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. U.S. Const. art. IV, 1 (emphasis added). The Full Faith and Credit Clause and its implementing statutes clearly require that full faith and credit shall be given to records such as state-issued marriage certificates. Id.; 28 U.S.C. 1739 (State and Territorial nonjudicial records; full faith and credit); see Mills v. Duryee, 11 U.S. 481, 483-84 (1813) (The act of congress communicates to the authenticated record the effect of record evidence in all Courts within the United States, and does not limit it to the Courts in any state . . . . The act declares that the record duly authenticated shall have such faith and credit as it has in the state Court from whence it is taken.); see also Davis v. Davis, 305 U.S. 32, 40 & n.5 (1938) (Thus Congress rightly interpreted the clause to mean not some but full credit. The Act extended the rule of the Constitution to all courts, Federal as well as State. . . . The records and judicial proceedings of the courts of any State or Territory . . . . so authenticated, shall have such faith and credit given to them in every court within the United 45
States as they have by law or usage in the courts of the State from which they are taken. (citations omitted)). The very purpose of the full faith and credit clause was to alter the status of the several states as independent foreign sovereignties . . . and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin. Finstuen v. Crutcher, 496 F.3d 1139, 1152 (10th Cir. 2007) (quoting Milwaukee Cnty. v. M.E. White Co., 296 U.S. 268, 276-77 (1935)). When a State alters the legal status of individuals, that alteration (or the document underlying said alteration) is entitled to full faith and credit. See Williams v. North Carolina, 317 U.S. 287, 301 (1942) (finding a divorce decree of one State that adheres to the strictures of due process should be given full faith and credit in all States); see also Finstuen, 496 F.3d at 1156 (recognizing that adoption decrees altering the parental status of the parties thereto are entitled to full faith and credit in all States). 1. The Full Faith and Credit Command Must Be Exacting with Respect to Certificates of Marriage.
The Supreme Court has differentiated between the credit owed to public acts (e.g., legislative measures and common law) and judgments under the Full Faith and Credit Clause. See Baker v. Gen. Motors Corp., 522 U.S. 222, 232-33 (1998). The Full Faith and Credit command is more exacting as to judgments. Id. at 233. States have almost universally recognized marriages formed elsewhere as a matter of comity, so there is a dearth of case law addressing the full faith and credit afforded to marriage certificates. See Patrick J. Borchers, Baker v. General Motors: Implications for
Interjurisdictional Recognition of Non-Traditional Marriages, 32 Creighton L. Rev. 147, 154-55 (1998) (citations omitted) (the general rule favoring the validity of marriages has long been one of the staples of conflict of laws principles in this nation, dating back to Joseph Storys first 46
conflicts treatise and the earliest reported decisions); see also William M. Richman & William L. Reynolds, Understanding Conflict of Laws 119 at 398 (3d ed. 2000) (noting an overwhelming tendency in the United States to recognize the validity of a marriage based upon the law where it was performed). However, like a judgment, marriage alters the legal rights among individuals, and confers individual protections and obligations. See Turner v. Safley, 482 U.S. 78, 96 (1987) ([M]arital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock)); see also Restatement (Second) of Conflict of Laws 283 (1971) (A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.). Marriage certificates, which record marriages that have been duly licensed and solemnized, are entitled to the same full faith and credit as judgments. Indeed, [t]he [Full Faith and Credit] Clause is designed to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states. Finstuen, 496 F. 3d at 1152. In Williams v. North Carolina, 317 U.S. 287 (1942), the Court found that when a court of one state . . . alters the marital status of one domiciled in that state by granting him a divorce from his absent spouse, we cannot say its decree should be excepted from the full faith and credit clause merely because its enforcement or recognition in another state would conflict with the policy of the latter. Id. at 303. Similarly, the Tenth Circuit found that when a party changes his or her legal status with an adoption decree, full faith and credit must be accorded to that decree.
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Finstuen, 496 F.3d at 1154 ([M]any courtsincluding Oklahomas Supreme Courthave determined that the Full Faith and Credit Clause applies to valid adoption decrees from other states.). Much like a change to the legal status that flows from an adoption decree or a judgment, Plaintiffs marriage certificate affects the rights and obligations of individualsonly to be later altered through judicial intervention subject to due process considerations. See Boddie, 401 U.S. at 376; see also Williams, 317 U.S. at 301 (Certainly if decrees of a state altering the marital status of its domiciliaries are not valid throughout the Union even though the requirements of procedural due process are wholly met, a rule would be fostered which could not help but bring considerable disaster to innocent persons and bastardize children hitherto supposed to be the offspring of lawful marriage. (quoting Haddock v. Haddock, 201 U.S. 526, 628 (Holmes, J., dissenting)). The full faith and credit afforded to certificates of marriage therefore must be as exacting as it is with judgments and adoption decrees. See Estin v. Estin, 334 U.S. 541, 547 (1948). Critically, Plaintiffs do not ask Pennsylvania to adopt Massachusetts law regarding marriage. This Court can award relief to Plaintiffs without requiring that Pennsylvania issue marriage licenses to same-sex couples, solemnize same-sex marriages, or issue marriage certificates to same-sex couples. Rather, Plaintiffs seek recognition of and respect for their lawfully obtained marital status, as evidenced by their certificate of marriage. See Finstuen, 496 F. 3d at 1152; see also, Pac. Emprs Ins. Co. v. Indus. Accident Commn, 306 U.S. 439, 501 (1939). Declaring as void Plaintiffs certificate of marriage and thereby their lawfully obtained marital status thwarts uniformity in the United States and perverts the purpose of the Full Faith and Credit command of the Constitution. See Finstuen, 496 F. 3d at 1152 (We are aware of no
48
. . . considerations of local policy or law which could rightly be deemed to impair the force and effect which the full faith and credit clause and the Act of Congress require to be given to . . . a judgment outside the state of its rendition. (quoting Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 438 (1943)). Accordingly, the full faith and credit afforded to certificates of marriage must be exacting. 2. The Effects Clause of Article IV, Section 1 Does Not Permit the Legislature to Refuse to Give Any Effect to Plaintiffs Marriage.
To the extent Section 2 of DOMA purports to allow the Commonwealth to refuse to adhere to the strictures of the Full Faith and Credit Clause of the Constitution, it exceeds Congresss power under the Constitution. It falls to this Court to make that determination. See United States v. MunozFlores, 495 U.S. 385, 397 (1990) (To survive this Courts scrutiny, the law [enacted by Congress] must comply with all relevant constitutional limits.); see also Natl Fedn of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579 (2012) (The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. (quoting Marbury v. Madison, 5 U.S. 137 (1803)). The second sentence of Article IV, Section 1 of the Constitution (the Effects Clause) states that the Congress may by general laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. U.S. Const. art. IV, 1. The Effects Clause authorizes Congress to prescribe the evidentiary requirements associated with the public acts, records and judicial proceedings of each State. The Effects Clause cannot be read to authorize Congress to limit the validity of public acts, records and judicial proceedings to the State that created them. It follows then that the Effects Clause cannot be read to authorize Congress to void the public acts, records and judicial proceedings of another State.
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Congress has heretofore construed the Effects Clause in a more limited way. The statutes enacted to implement the Full Faith and Credit Clause generally prescribe the proof required to establish acts, records and judicial proceedings, but are clear that, once such acts, records and judicial proceedings are proven, full faith and credit is mandatory. See 28 U.S.C. 1738 (State and Territorial statutes and judicial proceedings; full faith and credit; stating that [s]uch Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. (emphasis added)); 1739 (State and Territorial nonjudicial records; full faith and credit; stating that records or books, or copies thereof, so authenticated, shall have the same full faith and credit in every court and office within the United States and its Territories and Possessions as they have by law or usage in the courts or offices of the State, Territory, or Possession from which they are taken (emphasis added)); see also 28 U.S.C. 1738A (Full faith and credit given to child custody determinations); 1738B (Full faith and credit for child support orders). Section 2 of federal DOMA presumes a different meaning for the Effects Clause, purporting to provide that [n]o State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. 28 U.S.C. 1783C. Presumably, Congress enacted Section 2 precisely because of concerns that the Full Faith and Credit Clause otherwise would require universal recognition of same-sex marriages once states began to authorize such marriages. However, there is no precedent for a statute implementing the Full Faith and Credit
50
Clause that purports to declare (methods of proof aside) that full faith and credit need not be given to the acts, records or judicial proceedings of another State. The Full Faith and Credit Clause imposes a binding obligation on the several States and thus on their actors. Williams, 317 U.S. at 295 (stating that the very purpose of Art. IV, 1 was to alter the status of the several states as independent sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation (citation and internal quotation marks omitted)); see also Estin, 334 U.S. at 545-46. If the Effects Clause is interpreted to authorize Congress to decide that certain public acts, records or judicial proceedings need be given no effect, then Congress would be authorized to read full faith and credit out of the Constitution entirely. 3. Even If It Otherwise has the Authority to Act, Congress Cannot Pass Legislation in Violation of the Fifth Amendment.
Even if the Effects Clause of Full Faith and Credit could be interpreted as authorizing Congress to legislate that no credit be afforded certain public acts, records and judicial proceedings, it cannot and does not authorize Congress to pass legislation in violation of the Fifth Amendment. See Windsor, 133 S. Ct. at 2695 (The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.). Section 2 of DOMA purports to authorize States to single out and impose a disability on a class of people by permitting States to refus[e] to acknowledge a status [that another] State [found] to be dignified and proper. Id. at 2696. By purporting to authorize States to displace protections and treat certain married couples with less respect than others, Section 2 of DOMA violates the Fifth Amendment. See id. Thus, notwithstanding any purported authority that is otherwise granted by the Effects Clause, Congress is still constrained by the Fifth 51
Amendment and Section 2 of DOMA is invalid. See id. For all the reasons discussed above explaining why 1704 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment, Section 2 of DOMA also violates the Fifth Amendment. 4. Section 1983 Permits Plaintiffs to Challenge 1704 as Unconstitutional Under the Full Faith and Credit Clause.
Notwithstanding Defendants arguments to the contrary, Plaintiffs are permitted to vindicate their federal rights under the Full Faith and Credit Clause by advancing an action under 42 U.S.C. 1983 against Defendant Corbett and Defendant Kane. Section 1983 provides a federal remedy for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. As the language of the statute plainly indicates, the remedy encompasses violations of federal statutory as well as constitutional rights. Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 105 (1989) (quoting 42 U.S.C. 1983). Section 1983 actions may be asserted with respect to both individual and nonindividual constitutional rights. See Dennis v. Higgins, 498 U.S. at 443, 447. Moreover, 42 U.S.C. 1983 is intended to be broadly
construed, against all forms of official violation of federally protected rights. Monell v. Dept of Soc. Servs. of N.Y.C., 436 U.S. 658, 700-01 (1978). A constitutional provision creates a federal right if it creates obligations binding on the governmental unit that were intend[ed] to benefit the putative plaintiff and there are sufficiently specific and concrete rights to be judicially enforced. Golden State Transit Corp., 493 U.S. at 106 (citations and internal quotation marks omitted). In all cases, the availability of the 1983 remedy turns on whether the statute, by its terms or as interpreted, creates obligations sufficiently specific and definite to be within the competence of the judiciary to enforce . . . . Id. at 108 (internal citations and quotation marks omitted).
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The right to have an out-of-state record recognized is concrete, specific, and judicially cognizable. See Pac. Emprs Ins. Co., 306 U.S. at 501 ([T]he purpose of [the Full Faith and Credit Clause] was to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states . . . .). Thus, the Full Faith and Credit Clause was intended to benefit individual holders of out-of-state rights acquired by public acts, records and/or judgments. Magnolia Petroleum Co., 320 U.S. at 439 (finding that, because of the Full Faith and Credit Clause, a judgment shall be conclusive of the rights of the parties to that judgment in every State); see also 16B Am. Jur. 2D Constitutional Law 1031 (The purpose of the Full Faith and Credit Clause is to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in others, absent a showing of fraud, lack of due process, or lack of jurisdiction. (footnotes omitted)). In his motion to dismiss, Defendant Corbett cites Rosin v. Monken, 599 F.3d 574 (7th Cir. 2010) as affirming dismissal of Full Faith and Credit Clause action under 1983 against Illinois state officials with regard to challenge to sex offender registration statute. Corbett Br. 24. Rosin, however, was not dismissed based on a finding that the Full Faith and Credit Clause cannot be challenged under 1983. Rosin, an Illinois resident, pleaded guilty to sexual abuse in the third degree for an incident in New York. Id. at 575. The New York court issued an order that accepted a plea agreement and struck the provision that would require Rosin to register as a sex offender in New York. Id. at 575-76. When Illinois police required Rosin to register as a sex offender in Illinois, Rosin filed a 1983 action claiming that Illinois failed to give full faith and credit to the judgment of New York. Id. at 575.
53
The district court dismissed Rosins action because the New York judgment simply deleted an existing provisionit did not include any affirmative language regarding registration. Id. (explaining the district courts finding that the registration requirement in the New York order was merely stricken, which left the order silent on the subject). The Seventh Circuit affirmed the district court because the New York order was silent as to registration in any other state and [a]bsent such language, there is no relevant provision [in the plea agreement] to which Illinois must give full faith and credit. Id. at 577. The Seventh Circuit did not hold that Rosin did not have a federal right under the Full Faith and Credit Clause or that that federal right could not be vindicated under 42 U.S.C. 1983. Instead, the Seventh Circuit found that the command of the Full Faith and Credit Clause was not implicated because the underlying judgment did not provide language to which another State could have been required to give credit. Id. at 576. Moreover, the Rosin action arose because the Illinois police were giving full faith and credit to the change in Rosins status resulting from the New York order of conviction. Id. at 577. Defendant Corbetts reliance on Thompson v. Thompson, 484 U.S. 174 (1988), is similarly misplaced. Corbetts Br. 24. In Thompson, a father brought an action against his childs mother seeking declaratory and injunctive relief under the Parental Kidnapping Prevention Act (the PKPA) with respect to conflicting child custody decrees. Thompson, 484 U.S. at 177-78. The PKPA requires States to afford full faith and credit to valid child custody determinations entered by a sister States courts.28 Id. at 175-77, 179. Ultimately, the Supreme
28
The PKPA was passed because custody orders held a peculiar status under the Full Faith and Credit Clause. Thompson, 484 U.S. at 180. Because they are subject to modification, some courts doubted whether custody orders were sufficiently final to trigger full faith and credit requirements. Id. (citations omitted). The Supreme Court declined to address this issue, finding it unnecessary [b]ecause courts entering custody orders generally retain the power to modify 54
Court granted certiorari to determine whether the PKPA furnishe[d] an implied cause of action in federal court to determine which of two conflicting state custody decisions is valid. Id. at 176. The Court held the PKPA did not provide an implied cause of action in federal court to decide custody issues. Id. at 187. The current matter involves state actors and therefore implicates 1983. Therefore, it is unnecessary to find an implied cause of action. See Golden State Transit Corp., 493 U.S. at 108 ([T]he fact that a federal statute has preempted certain state action does not preclude the possibility that the same federal statute may create a federal right for which 1983 provides a remedy.); Monell, 436 U.S. at 692 ([Section 1983] plainly imposes liability on a government that, under color of some official policy, causes an employee to violate anothers constitutional rights.). The Thompson Court did not hold that the Full Faith and Credit Clause creates no federal right, 484 U.S. at 187, and, therefore, is inapposite to the issues before this Court. Defendant Corbetts reliance on Adar v. Smith, 639 F.3d 146 (5th Cir. 2011) (Corbetts Br. 24), is similarly unpersuasive. In Adar, the Fifth Circuit found that Louisianas refusal to issue an amended birth certificate to same-sex parents based on a New York adoption order did not violate the Full Faith and Credit Clause despite a Louisiana law providing that an amended birth certificate may issue following an adoption. 639 F.3d at 161 (Louisiana has a right to issue birth certificates in a manner it deems fit. . . . and the manner in which it enforces out-ofstate adoptions does not deny them full faith and credit.). The Fifth Circuit also found that the plaintiffs were not permitted to vindicate full faith and credit rights under 1983 against nonjudicial actors. Id. at 154 ([S]ince the duty of affording full faith and credit to a judgment falls on courts, it is incoherent to speak of vindicating full faith and credit rights against non-judicial
them, courts in other States were no less entitled to change the terms of custody according to their own views of the childs best interest. Id. (citation omitted). 55
state actors.). To reach this determination, the Fifth Circuit interpreted the Full Faith and Credit Clause to say full faith and credit shall be given only to judgments and only by the courts of each State. Id. at 151 (Simply put, the clause and its enabling statute created a rule of decision to govern the preclusive effect of final, binding adjudications from one state court or tribunal when litigation is pursued in another state or federal court.). The Adar court ignored the plain meaning of the Full Faith and Credit Clause. If the framers had intended the Full Faith and Credit Clause to bind only courts, they would have said so. Instead, the Full Faith and Credit Clause provides: Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. U.S. Const. art. IV, 1 (emphasis added). In Finstuen, the Tenth Circuit implicitly permitted the plaintiffs to vindicate their rights against nonjudicial actors (the governor and state attorney general) under the Full Faith and Credit Clause when they challenged a state law barring the recognition of out-of-state adoptions by same-sex couples. See Finstuen, 496 F.3d at 1141 (Because the Oklahoma statute at issue categorically rejects a class of out-of-state adoption decrees, it violates the Full Faith and Credit Clause.). In fact, like the Rosin court, the Finstuen court recognized and gave effect to the change in the plaintiffs legal status based on the underlying decree/order. See id. Therefore, in the present action, Plaintiffs properly seek to vindicate their federal right to the recognition of their marriage as mandated by the Full Faith and Credit Clause. E. Section 1704 Creates an Impermissible Burden on Entry into the Commonwealth of Pennsylvania.
The right to free migration throughout the United States has been said to be so fundamental to transforming the States into one Nation that the Supreme Court has not felt impelled to locate this right definitively in any particular constitutional provision. Attorney56
General of N.Y. v. Soto-Lopez, 476 U.S. 898, 902 (1986).29 Whatever its origin, the right to migrate is firmly established and has been repeatedly recognized by our cases. Id. at 903. To preserve this fundamental right, no State is permitted to pass a law that impinges on the right to travel unless it can establish that any such impingement is necessary to promote a compelling governmental interest. Shapiro, 394 U.S. at 634 ([A]ny classification which serves to penalize the exercise of [the] right [to travel], unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.). A state law implicates the right to travel when it actually deters such travel . . . or when it uses any classification which serves to penalize the exercise of that right. Soto-Lopez, 476 U.S. at 903 (citations and internal quotation marks omitted). Thus, because 1704 penalizes the exercise of the constitutional right to migrate, Defendants bear the burden of establishing that 1704 is necessary to promote a compelling governmental interest. 1. Section 1704 Punishes Married Same-Sex Couples That Exercise Their Right to Freely Migrate to Pennsylvania.
Section 1704 improperly declares that Plaintiffs marriage is void merely because they have entered Pennsylvania. It is well established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution. Maldonado v. Houstoun, 157 F.3d 179, 188 (3d Cir. 1998) (quoting Harman v. Forssenius, 380 U.S. 528, 540 (1965)). Plaintiffs fundamental right to travel cannot be conditioned upon the loss of their marital status if they travel to certain States within the United States. See id. at 186 ([T]he right of interstate travel must be seen as insuring new [married] residents the same right to vital government benefits and
29
The Court has found various textual support for the fundamental right to travel in the Commerce Clause, the Privileges and Immunities Clause of Art. IV, and the Privileges or Immunities and Equal Protection Clauses of the Fourteenth Amendment. See Soto-Lopez, 476 U.S. at 902 & n.2 (citations omitted). 57
privileges in the States to which they migrate as are enjoyed by other [married] residents.(quoting Meml Hosp. v. Maricopa Cnty., 415 U.S. 250, 261 (1974)). The Commonwealth improperly asserts that because Plaintiffs are not prevented from entering Pennsylvania, there is no right-to-travel issue. Corbetts Br. 37. Although not
prevented from entering the Commonwealth, Plaintiffs have been severely penalized for doing so. See Soto-Lopez, 476 U.S. at 906 (The fact that . . . deprivations were temporary did not offset the Courts conclusions that they were so severe and worked such serious inequities among otherwise qualified residents that they effectively penalized new residents for the exercise of their rights to migrate.); see also Maldonado, 157 F.3d at 188 (finding that a two-tier statutory scheme for the award of welfare benefits penalized newer residents for exercising their right to migrate). Moreover, 1704 improperly forces same-sex spouses to choose between their liberty interest in the integrity of their marriage and their fundamental right to travel. Compare Casey, 505 U.S. at 851 (At the heart of liberty is the right to define ones own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.), with Harman, 380 U.S. at 540. 2. Section 1704 Promotes No Compelling State Interest.
As stated more fully above, Defendants cannot articulate even a rational basis for declaring as void within the Commonwealth all valid out-of-state same-sex marriages. See Turner, 482 U.S. at 96 (The[] incidents of marriage, like the religious and personal aspects of the marriage commitment are unaffected by . . . . the pursuit of legitimate [governmental] goals.). Defendants cannot explain why refusing to recognize a valid marriage is necessary to
58
achieve any governmental interest, let alone a compelling governmental interest. Thus, 1704 must be invalidated. V. CONCLUSION For the foregoing reasons, Plaintiffs Cara Palladino and Isabelle Barker respectfully request that the Court deny the motions to dismiss filed by Defendant Governor Thomas W. Corbett (Dkt. No. 20) and Defendant Attorney General Kathleen Kane (Dkt. No. 21) and grant Plaintiffs motion for summary judgment. Dated: January 13, 2014 By: s/ Vanessa R. Brown Michael L. Banks (Pa. Bar I.D. No. 35052) Eric Kraeutler (Pa. Bar I.D. No. 32189) Joseph B.G. Fay (Pa I.D. No. 33480) Vanessa R. Brown (Pa. Bar I.D. No. 315115) Elisa P. McEnroe (Pa. Bar I.D. No. 206143) William O. Mandycz (admitted pro hac vice) Jane Manchisi (Pa. Bar I.D. No. 309085) Jonathan D. Wall (Pa. Bar I.D. No. 316692) MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 215.963.5000 (telephone) 215.963.5001 (fax)
mbanks@morganlewis.com
ekraeutler@morganlewis.com vbrown@morganlewis.com emcenroe@morganlewis.com Benjamin L. Jerner (Pa. Bar I.D. No. 82695) Tiffany L. Palmer (Pa. Bar I.D. No. 76202) Jerner & Palmer, P.C. 5401 Wissahickon Avenue Philadelphia, PA 19144 215.843.6000 (telephone) 215.843.6006 (fax) TPalmer@JPLaw.com BJerner@JPLaw.com Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that on January 13, 2014, a true and correct copy of the foregoing Plaintiffs Combined Memorandum of Law in Opposition to the Motions to Dismiss filed by Defendants Corbett and Kane and in Support of Plaintiffs Motion for Summary Judgment was filed electronically and served via ECF on all counsel of record.
By: s/ Vanessa R. Brown Vanessa R. Brown
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Attorneys for Plaintiffs

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DEFENDANTS MOTIONS TO DISMISS SHOULD BE DENIED ............................ 11

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licensethey are already legally and validly married.

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Plyler, 457 U.S. at 227.

Moreover, in this instance, 1704 actually burdens the

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