2:14-cv-01091 #14

IN THE UNITED STATES DISTRICT COURT
FOR NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

APRIL AARON-BRUSH and GINGER
AARON-BRUSH,

Plaintiffs,

vs.

ROBERT BENTLEY in his official capacity as
Governor of Alabama; LUTHER STRANGE in
his official capacity as Attorney General of
Alabama; J ULIE MAGEE in her official
capacity as Commissioner of Revenue of the
State of Alabama; J OHN RICHARDSON in his
official capacity as Director of the Alabama
Department of Public Safety,

Defendants.

Case No.: 2:14-CV-01091-RDP

PLAINTIFFS RESPONSE IN OPPOSITION TO
DEFENDANTS MOTION TO DISMISS (DOC. #9)

For the reasons set forth below, Defendants Motion to Dismiss (Doc. #9) should be
denied.

I. THE GOVERNOR IS NOT IMMUNE FROM SUIT.
A suit against an officer of a State directing him to refrain from unconstitutional conduct
is not a suit against a State within the meaning of the Eleventh Amendment. Ex parte Young, 209
1
FILED
2014 Jul-23 PM 01:21
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 2:14-cv-01091-RDP Document 14 Filed 07/23/14 Page 1 of 10
U.S. 123, 156 (1908).
1
The doctrine of Ex parte Young rests on the premise less delicately called
a fiction, that when a federal court commands a state official to do nothing more than refrain
from violating federal law, he is not the State for sovereign-immunity purpose. Va. Office for
Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011) (citations omitted).
The Governor cites several cases in which the courts have discussed the propriety of
making a governor a defendant and argues that the plaintiffs have not met the standard set by those
cases. The general rule is stated in Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988):
Personal action by defendants individually is not a necessary condition of
injunctive relief against state officers in their official capacity. All that is required
is that the official be responsible for the challenged action. As the Young court held,
it is sufficient that the state officer sued must, by virtue of his office, ha[ve] some
connection with the unconstitutional act or conduct complained of. [W]hether
[this connection] arises out of general law, or is specially created by the act itself,
is not material so long as it exists. Young, 209 U.S. at 157, 28 S.Ct. at 453.
Defendants are therefore appropriate parties against whom prospective relief could
be ordered. See Papasan v. Allain, 487 U.S. at 282 n. 14, 106 S.Ct. at 2943 n. 14
(Secretary of state responsible for general supervision of administration by local
school officials of lands set aside for educational purposes properly could be
enjoined under Young exception in suit alleging violation of equal protection in
distribution of funds from land). See also Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct.
498, 13 L.Ed.2d 401 (1965) (Georgia Secretary of State sued in apportionment
case); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)
(Alabama Secretary of State sued in apportionment case).

Luckey, 860 F.2d at 1015-16.
On the straightforward inquiry mandated by Supreme Court precedent, this case squarely
fits the Young exception. See Verizon Md., Inc. v. Pub. Serv. Commn of Md., 535 U.S. 635, 645
(2002) (In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment
bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges
1
Because a State cannot be sued directly in its own name, Alabama v. Pugh, 438
U.S. 781 (1978), an official capacity action against state officials is required to seek prospective
relief and is permitted pursuant to Ex parte Young.
2

an ongoing violation of federal law and seeks relief properly characterized as prospective.)
(internal quotations, alterations, and citations omitted). Plaintiffs seek only prospective injunctive
and declaratory relief against the Governor for the ongoing violation of Plaintiffs constitutional
rights. The relief sought by Plaintiffs would not expend itself on the public treasury or domain,
or interfere with public administration. Va. Office for Prot. & Advocacy, 131 S. Ct. at 1638
(citations omitted).
Defendants seek to circumvent Ex parte Young by arguing that Plaintiffs claims against
the Governor rely only on the Governors supreme executive power and that he has no direct
enforcement responsibilities to make him a proper defendant. Motion (Doc. #9) at 4. See also
Ala. Const. 113 (Governor holds the supreme executive power of the state) and 120
(Governor charged to take care that the laws be faithfully executed). Although those powers are
extensive,
2
Plaintiffs do not claim that the Governor is a proper party merely by virtue of the broad
executive power to enforce the laws as provided by Alabamas Constitution. But in contrast to
Defendants assertions, the Governor is far from a passive bystander to the policies at issue here.
Rather, the Governor of Alabama by virtue of his office, has some connection with the
unconstitutional policies complained of in the Complaint. Young, 209 U.S. at 157.
Curiously, Defendants dismiss Plaintiffs allegation that the Governor announced in
September 2013 he would not permit the Alabama National Guard to provide benefits to same-sex
spouses, despite a federal directive to do so. See Motion (Doc. #9) at 4 and n. 2. Not only is
2
As interpreted by the Supreme Court of Alabama, these constitutional powers are
indeed broad and grant the Governor the independent authority to enforce the laws challenged in
this litigation. See Riley v. Cornerstone Cmty. Outreach, Inc., 57 So. 3d 704, 719-40 (Ala. 2010).
3

Plaintiffs assertion corroborated by contemporaneous news accounts,
3
but in pending litigation in
the Middle District of Alabama, the Governor expressly admitted the following:
Defendant Robert Bentley is the Governor of the State of Alabama. Under
the state constitution, he holds the supreme executive power of the state and is
charged to take care that the laws be faithfully executed. See Ala. Const. 113,
120. By virtue of his position, Governor Bentley maintains, and has exercised,
enforcement authority in connection with the Sanctity Laws [Ala. Code 30-1-19
and Ala. Const. Amend. No. 774]. As an example, he announced in September 2013
that he would not permit the Alabama National Guard to provide benefits to same-
sex spouses, despite a federal directive to do so. According to news reports,
Governor Bentley stated: When they're under my command we will obey Alabama
state law.

Hard v. Bentley, et al., Complaint (Doc. #1) 16, Case No. 2:13-CV0922 (M.D. Ala.); Answer
(Doc. #18) 16 (admitting allegations without reservation). Copies of the Hard Complaint and
the Governors Answer are attached as Exhibits 3 and 4.
Aside from the clear admission in Hard that the Governor maintains, and has exercised,
enforcement authority in connection with the challenged laws and policy, the Governors office
has itself proclaimed that it possesses the authority to declare that same-sex marriage is against
the public policy and laws of the State of Alabama by issuing Executive Order 1996-24.
Complaint (Doc. #1) at 22, 23 and Answer (Doc. #13) at 22, 23 (admitting the issuance of
the Executive Order).
4
In that Order, the then-Governor proclaimed that:
[B]y virtue of the authority vested in me by the Constitution and laws of Alabama,
and for other good and valid reasons, which relate thereto, [I] do hereby declare
that same-sex marriage is against the public policy and laws of the State of
Alabama; A marriage in another state or foreign jurisdiction between persons of
the same sex, regardless of when such marriage took place, shall not be recognized
as a valid marriage in this state and shall produce no civil effects nor confer any of
the benefits, burdens or obligations of marriage under the laws of the State of
Alabama,

3
See Exhibit 1 September 12, 2013, The News Courier and Exhibit 2 September
11, 2013 (updated December 4, 2013), WSFA 12 News (reprinted at WorldNow), attached hereto.
4
A copy of the Executive Order is attached as Exhibit 5.
4

It shall be the responsibility of all officers and employees of all departments,
agencies, boards, commissions, authorities, task forces, and divisions of the
executive branch of State Government, and all political subdivisions thereof, to
comply with and enforce the terms and provisions of this Executive Order.

Executive Order 1996-24 at 2. That Order, which has not been amended or modified, remains in
effect today (this Executive Order shall become effective immediately upon the Governors
signature and shall remain in effect until amended or modified by the Governor.). Id.
The Governors office has been an active participant in the policies challenged by
Plaintiffs. The current Governor has proclaimed that he will ensure that Alabama does not follow
the trend of allowing gay marriages or civil unions, and I will protect our states right to define
marriage as between one man and one woman. Complaint (Doc. #1) at 15, Answer (Doc. #13)
at 15 (admitting that the Governor made this quoted statement). The Governor possesses the
statutory authority to institute, conduct or appear in any court or in any civil or criminal case in
with the state is interested and thus has the legal ability to back up his proclamations regarding
same-sex marriage in Alabama. Ala. Code 36-13-2 (authority to hire attorneys for that purpose).
The Governor also possesses constitutional authority independent of the Attorney General to act
to enforce Alabama law as the Governor sees fit:
[W]e reach two preliminary conclusions. First, if our constitutions grant of
supreme executive authority to the governor and its charge that the governor
take care that the laws be faithfully executed mean anything in relation to a matter
for which another constitutional officer is also given responsibility, they at least
mean as follows: when the governor determines that, whether due to inaction or
inadequate action by the other official, it is necessary for him to act lest the law go
unenforced, he may act.

Second, the aforesaid authority to act derives from the constitution itself,
not from any statutory grant of authority by the legislature. That is, it is authority
that exists even in the absence of a specific grant of authority by the legislature.

Riley v. Cornerstone Cmty. Outreach, Inc., 57 So. 3d 704, 722 (Ala. 2010) (footnote omitted).
5
The past issuance of an Executive Order on the very topic underlying this litigation,
combined with the Governors assertions he will ensure that Alabama does not follow the trend
of allowing gay marriages and that he will protect our states right to define marriage as between
one man and one woman, and the legal authority to do so, presents an ample connection to the
claimed unconstitutional actions at issue in this litigation. See, e.g., Kitchen v. Herbert, --- F.3d ----,
2014 WL 2868044, *4-*7 (10th Cir. J une 25, 2014) (holding Utah governor to be a proper party,
noting, among other factors, that he claimed to have ample authority to ensure that a county
clerk limit marriage licenses to man-woman couples, that he is statutorily charged with
supervis[ing] the official conduct of all executive and ministerial officers and see[ing] that all
offices are filled and the duties thereof performed, that he has demonstrated a willingness to
exercise [his] duty to ensure clerks and other state officials enforce the ban, and that pursuant to
Utahs executive power which is vested in the Governor, he had the authority to appoint and
remove the states tax commissioners
5
) (citations and footnote omitted).
6
See also Latta v. Otter,
--- F.Supp.2d ----, 2014 WL 1909999, * 6 (D. Idaho May 13, 2014) (As Governor, Defendant
Otter is responsible for upholding and ensuring compliance with the Idaho Constitution and
statutes enacted by the Legislature, including the marriage laws at issue in this case. See Idaho
5
Alabamas Governor possesses the same authority with respect to Alabamas
Commissioner of Revenue, see Ala. Code 40-2-41, and the Director of Public Safety, see Ala.
Code 32-2-1.
6
In holding Utahs governor to be a proper party, the Tenth Circuit distinguished an
earlier case in which it held that Oklahomas governor, under Oklahoma law, was not a proper
party in a challenge to Oklahomas ban on same-sex marriage. Id. at *5 (citing Bishop v. Oklahoma
ex rel. Edmondson, 333 F. Appx 361 (10th Cir. 2009)). The Tenth Circuit subsequently held in
Bishop that while the law of the case doctrine applied to its earlier decision, the doctrine is
overcome by new evidence demonstrating that the Tulsa County Court Clerk could not redress the
non-recognition injury and consequently the couple challenging that portion of the statute lacked
standing because there was no defendant before the court responsible for non-recognition of their
out of state marriage. Bishop v. Smith, --- F.3d ----, 2014 WL 3537847, *1, *21 (10th Cir. J uly 18,
2014).
6

Const. Art. IV, 5 (The supreme executive power of the state is vested in the governor, who shall
see that the laws are faithfully executed.).).
7

Having claimed the executive authority to direct all officers and employees of all
departments, agencies, boards, commissions, authorities, task forces, and divisions of the executive
branch of State Government, and all political subdivisions thereof, to refuse to recognize
marriages between same-sex couples like Plaintiffs, the Governor should be estopped from now
claiming that he is not a proper party to this direct challenge to the very public policy proclaimed
by the Governors office. Similarly, the Governors admission in Hard that he maintains, and has
exercised, enforcement authority in connection with the challenged laws and policy, should
further estop any claim that he is not a proper party here.

II. PLAINTIFFS HAVE STANDING TO BRING THIS ACTION AGAINST THE GOVERNOR.
To satisfy the case or controversy requirement for standing, a plaintiff must show that: 1)
she has suffered an injury in fact that is concrete and particularized and actual or imminent, not
conjectural or hypothetical; 2) the injury is fairly traceable to conduct of the defendant; and, 3) it
is likely, not just merely speculative, that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). It cannot be seriously doubted that
7
Compare: Harris v. McDonnell, --- F.Supp.2d ----, 2013 WL 6835145, *4 (W.D.
Va. Dec. 23, 2013) (governor not a proper party because Virginias marriage laws do not
expressly refer to the Governor [and] there is no allegation that the Governor has taken steps to
enforce the same-sex marriage ban .); Baskin v. Bogan, --- F.Supp.2d ----, 2014 WL 2884868,
*4 (S.D. Ind. J une 25, 2014) (the Governor is not a proper party because the Plaintiffs injuries
are not fairly traceable to him and cannot be redressed by him.); Love v. Pence, --- F.Supp.2d ----,
2014 WL 2881569, *3 (S.D. Ind. J une 25, 2014) (governor not a proper party because the
complained-of injury is not fairly traceable to the Governor because he lacks the authority to
enforce the challenged statute [and] because the Governor cannot enforce the challenged statute,
he cannot redress Plaintiffs injury.) (citations omitted). Here, for the reasons set forth above,
under Alabama law, the Governor has the necessary connection to the challenged laws and policies
to make him a proper party to this litigation.
7

the first and third prongs are met here. Plaintiffs were legally married in Massachusetts in J une
2012. Complaint (Doc. #1) at 1, 10. The State of Alabama refuses to recognize their marriage
because of Alabama law and the Governors policy, and consequently, Plaintiffs are denied legal
benefits afforded married couples by Alabama law.
8
Id. at 1, 2 (admitted, Doc. #13 at 1, 2).
If the Court grants Plaintiffs the permanent injunctive relief they seek, Alabama, the Governor,
all officers and employees of all departments, agencies, boards, commissions, authorities, task
forces, and divisions of the executive branch of State Government, and all political subdivisions
thereof would be required to recognize their marriage and they would be entitled to all benefits
of marriage under Alabama law. See Doc. #1 at 33 Request for Relief, 1-4. Defendants claim
that Plaintiffs lack standing is based upon the same faulty premise that underlies the claim to
sovereign immunity that the Governor has nothing to do with the States legal prohibitions or
policy. For the same reasons set forth above, the Governors direct connection to the challenged
policies both through Executive Order claiming authority to act on the challenged issues and his
commitment to continue those policies is sufficient causation for purposes of standing.

8
Aside from the panoply of benefits afforded married couples, and denied Plaintiffs
see Answer (Doc. #13) at 30 (Defendants admit that Alabama law provides benefits to
marriages that are not afforded to any other relationships, including same-sex relationships.),
Plaintiffs have articulated specific harms that they have personally suffered. See, e.g., id. at 11
(Defendants admit that Alabama law does not permit Ginger Aaron-Brush to adopt the biological
daughter of April Aaron-Brush because the Plaintiffs are not spouses under Alabama law.) and
at 12 (Defendants admit that Plaintiffs may not file a joint Alabama state tax return because the
Plaintiffs are not spouses under Alabama law.). See also Complaint (Doc. #1) at 12 (Also
because of Alabamas Marriage Prohibitions, both Ginger and April Aaron-Brush had to take
additional steps beyond what an individual in a different-sex marriage must take to effectuate a
name change on their Alabama drivers licenses, incurring financial expenses and a time
commitment significantly beyond what would be required of an individual changing her name
because of a different-sex marriage.).
8

III. CONCLUSION.
For the reasons set forth above, Defendants Motion to Dismiss the Governor (Doc. #12)
should be denied.
Respectfully submitted,

s/ Randall C. Marshall
Randall C. Marshall (ASB-3023-A56M)
Avery C. Livingston (ASB-3780-G22R)
ACLU of Alabama Foundation
P.O. Box 6179
Montgomery, AL 36106-0179
334-265-2754
rmarshall@aclualabama.org
alivingston@aclualabama.org

Chase Strangio**
J ames Esseks**
ACLU Foundation
125 Broad Street, 18th Floor
New York, New York 10004
212-284-7320
cstrangio@aclu.org
jesseks@aclu.org

** Admitted pro hac vice.

Wendy Brooks Crew (ASB-5609-e42w)
The Crew Law Firm
2001 Park Pl Ste 550
Birmingham, AL 35203-2714
205-326-3555
wbcrew4@aol.com

J oel E. Dillard (ASB-5418-R62J )
Baxley, Dillard, McKnight & J ames
2008 Third Avenue South
Birmingham, Alabama 35233
205-271-1100
J Dillard@BaxleyDillard.com

J oshua S. Segall (ASB-9123-O78S)
Post Office Box 4236
Montgomery, AL 36103
334-324-4546
J oshua.segall@segalllaw.net

Robert D. Segall (ASB-7354-E68R)
Copeland, Franco, Screws & Gill, P.A.
P.O. Box 347
Montgomery, Alabama 36101-0347
334-834-1180
segall@copelandfranco.com

s/ Edward Still
Edward Still (ASB-4786-i47w)
Edward Still Law Firm LLC
130 Wildwood Parkway STE 108-304
Birmingham AL 35209
205-320-2882
still@votelaw.com

Cooperating Attorneys for the ACLU of Alabama
Foundation
9
CERTIFICATE OF SERVICE
I hereby certify that on J uly 23, 2014, I electronically filed the foregoing with the Clerk
of the Court using the CM/ECF system which will send notification of such filing to the following
counsel of record for defendants:
J ames W. Davis (ASB-4063-I58J )
Laura E. Howell (ASB-0551-A41H)
Assistant Attorneys General

STATE OF ALABAMA
OFFICE OF THE ATTORNEY GENERAL
501 Washington Avenue
(334) 242-7300
(334) 353-8440 (fax)
jimdavis@ago.state.al.us
lhowell@ago.state.al.us

Attorneys for Defendants Bentley,
Strange, Magee, and Richardson

David B. Byrne, J r.
Chief Legal Advisor
STATE OF ALABAMA
OFFICE OF THE GOVERNOR
Alabama State Capitol
600 Dexter Avenue, Ste. NB-05
Montgomery, Alabama 36130
(334) 242-7120
david.byrne@governor.alabama.gov

Additional Counsel for Governor
Bentley

J . Haran Lowe
Timothy L. McCollum
STATE OF ALABAMA
DEPARTMENT OF PUBLIC SAFETY
Legal Unit
P.O. Box 1511
(334) 242-4392
haran.lowe@dps.alabama.gov
tim.mccollum@dps.alabama.gov

Additional Counsel for Defendant
Richardson

/s Randall C. Marshall

Randall C. Marshall
10
PLAINTIFFS
EXHIBIT 1
FILED
2014 Jul-23 PM 01:21
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 2:14-cv-01091-RDP Document 14-1 Filed 07/23/14 Page 1 of 2
Most AlabamaGuard staff covered by same-sex policy Local News TheNews Courier in Athens, Alabama
http://www.enewscourier.com/local/x789527940/Most-Alabama-Guard-staff-covered-by-same-sex-policy[7/21/2014 9:27:36 AM]
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September 12, 2013
Most Alabama
Guard staff
covered by same-
sex policy
Associated Press
MONTGOMERY Most, but not all, full-time
staffers at the Alabama National Guard are
covered by a new Pentagon policy
providing benefits for same-sex couples.
So far, fewer than 10 in Alabama have
requested the benefits, a Guard
spokesman said Thursday.
Sept. 3 was the first day same-sex
spouses of military members could seek
the same health, housing and other
benefits as heterosexual spouses. The new policy resulted from the U.S. Supreme Court's decision
against the Defense of Marriage Act.
Capt. Andrew Richardson of the Alabama National Guard said Thursday there are about 2,500
full-time Guardsmen in Alabama who are considered federal employees and are eligible for
federal benefits. They are covered by the new policy.
He said the Guard has fewer than 300 full-time employees who are considered state employees,
and they continue to receive state benefits. Those benefits don't cover same-sex marriages,
which are not recognized by Alabama law.
Gov. Robert Bentley sought to explain the difference during an appearance in Wetumpka. "It's
very simple. When they're under my command, they're under state law. When they're under the
command of the president, they're under federal law," he said.
Richardson said that when traditional Guard members from Alabama are activated full time and
deployed, their spouses will become eligible for federal benefits.
Under the Pentagon's new rule, same-sex spouses can seek benefits only if the service member
provides a valid marriage certificate. For Alabama Guardsmen, that means going to another state
to get married because Alabama has a state law and a constitutional amendment defining
marriage as being between a man and woman.
"Our chaplains will not perform same-sex marriages because they are under my command,"
Bentley said.
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PLAINTIFFS
EXHIBIT 2
FILED
2014 Jul-23 PM 01:21
U.S. DISTRICT COURT
N.D. OF ALABAMA
MONTGOMERY, AL (WSFA) -
Governor: No same-sex benefits for AL NationaI Guard under state controI
Posted: Sep 11, 2013 6:39 PM CST
Updated: Dec 04, 2013 6:39 PM CDT
By Max Reiss - email
Alabama's governor clarified the state's position on extending federal benefits to
same sex married coupIes in the AIabama NationaI Guard.
"When the Alabama National Guard is under my command, which is often, then they're under Alabama law,"
Gov. Bentley said during his Road to Economic Recovery Tour in Wetumpka.
Gay marriages are not recognized in Alabama and the state's constitution defines marriage as a partnership
between one man and one woman.
Shortly after the United States Supreme Court struck down the Federal Defense of Marriage Act as
unconstitutional, the Department of Defense took steps to make all federal benefits extend to same-sex couples
who obtained their marriage licenses in state where the practice is legal. Those benefits include health
insurance, survivors' payments, and housing for same sex couples.
Texas, Louisiana, and Mississippi have all announced that they would not extend the federal benefits to Guard
members in their states. All three of those states do not recognize gay marriage.
"t's very simple" Gov. Bentley said. "When they're under my command, they're under state law. When they're
under the command of the president, they're under federal law."
What isn't clear is how those benefits will be doled out. The governor didn't say whether there was any sort of
triggering mechanism that dictated when certain benefits would be granted or denied.
Calls to the Alabama National Guard were not returned.
Copyright 2013 WSFA 12 News. All rights reserved.
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Governor: No same-sex beneIits Ior AL National Guard under state http://apmobile.worldnow.com/story/23408409/governor-no-same-sex-b...
1 oI 2 7/21/2014 9:21 AM
PLAINTIFFS
EXHIBIT 3
FILED
2014 Jul-23 PM 01:21
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATE$LUSflUCT COURT
FOR THE MIDDLE]AST RIC'tO'AJABAMA
lb r
3r-
PAUL HARD;
Plaintiff,
V.
ROBERT BENTLEY, in his official capacity as
Governor of the State of Alabama; LUTHER
JO] . SON STRANGft III in his official capacity
as Attorney General of the State of Alabama;
CATHERINE M. DONALD in her official
capacity as the State Registrar of Vital Statistics;
STEVEN L. REED in his official capacity as
Probate Judge for the County of Moutgonry;
RICHARD I. LOHR, II, Administrator of the
ESTATE of DAVID FANCHER;
Defendants.
1L0f l NON
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
Claim of Unconstitutionality of
Marriage Protection Act and
Constitutional Amendment 774
(Sanctity of Marriage Amendment)
PRELIMINARY STATEMENT
1.Plaintiff seeks a declaration that Alabama's refusal to recognize same-sex marriages
entered out of state violates the United States Constitution. Plaintiff also seeks injunctive relief
necessary to recognize him to be a rightful beneficiary, as surviving spouse, to proceeds
anticipated from a wrongful death action now pending in this Court (Lchf v, Zhner, No.. 2 1 2
cv-00533-MHT) that arises Out of a 2011 car, accident in Which Plaintiff's husband was killed.
2
Plaintiff Paul Hard ('Paul") lives in Montgomery, Alabama and is a widower.

3.
His husband, Charles David Fancher ("David"), was killed in a traffic accident on
Interstate 65 during the night of August 1, 2011. David's car slammed into a UPS truck that had
overturned and was blocking the North-bound
lanes
of the highway. David died with ten
minutes of impact.
1
Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 1 of 17 Case 2:14-cv-01091-RDP Document 14-3 Filed 07/23/14 Page 2 of 18
4. Paul is the "surviving spouse" and therefore should receive proceeds from a wrongful
death action that now is pending in this Court.
5. Certain provisions of Alabama law and the Alabama Constitution prevent this result,
however.
6. Proceeds from a wrongful death action in Alabama must be distributed pursuant to the
laws of intestate succession. Those laws require that the majority of the proceeds should go to
the surviving spouse.
7. But Ala. Code 30-1-19 ("Marriage Protection Act") and Ala. Const. Amend. No. 774
(' 4 Sanctity of Marriage Amendment") prevent that from happening in this case. Under the
Marriage Protection Act, and the Sanctity of Marriage Amendment (collectively referred to as the
"Sanctity Laws"), Paul cannot be deemed a surviving "spouse," even though he and David were
lwfillv n,cirripd nt flip finip nfflivid'Qdpfl,
8. The Sanctity Laws provide that "[t]he state of Alabama shall not recognize as valid any
marriage of parties of the same sex that occurred or was alleged to have occurred as a result of
the law of any jurisdiction."
9. These restrictions have no legitimate basis. They create two, unequal, classes of married
couples living in the State of Alabama: those married couples who enjoy all the protections
afforded to people who are married, including the right of a surviving spouse to recover proceeds
in a wrongful death action, and those married couples, like Paul and David, who do not
. . The
obvious purpose of the Sanctity Laws is to punish and demean citizens who have entered one
type of marriage, but not the other.
10. The United States Supreme Court recently held that the U.S. Constitution does not permit
laws that single out a particular class of marriages for disfavored treatment. But that is precisely
2
what the Sanctity Laws do: they single out same-sex marriages and deny to those marriages the
same lights and dignity that Alabania affords other marriages.
11. In doing so, the Sanctity Laws violate the right to equal protection and due process, as
protected by the Fourteenth Amendment to the U.S. Constitution.
12. Paul therefore seeks a judgment to that effect, as well as an order requiring the Registrar
of Vital Statistics to correct David's death certificate to indicate that Paul is the surviving spouse,
an order requiring the administrator of David's estate, who currently is prosecuting the wrongful
death action, to distribute any proceeds that are owing to Paul as the "surviving spouse," and an
order invalidating those provisions of the Sanctity Laws that prohibit recognition of lawful same-
sex marriages and preventing their enforcement.
JURISDICTION AND VENUE
13. This is an action under 28 U.S.C. 2201-2202 challenging Alabama's Sanctity Laws as
violations of the Equal Protection Clause and the Due Process Clause of the Fourteenth
Amendment to the U.S. Constitution. This Court therefore has subject matter jurisdiction over
these claims pursuant to 28 U.S.C. 1331 and 1343.
14. Venue is proper in this District pursuant to 28 U.S.C. 1391 because one or more
defendants resides in this District, and because a substantial patt of the events giving rise to
Plaintiff's claims occurred in this District.
PARTIES
15. Plaintiff Paul Hard is an individual who lives in Montgomery, Alabama.
16. Defendant Robert Bentley is the Governor of the State of Alabama. Under the state
constitution, he holds the "supreme executive power" of the state and is charged to "take care
that the laws be faithfully executed." See Ala. Const. 113, 120. By virtue of his position,
3
Governor Bentley maintains, and has exercised, enforcement authority in connection with the
Sanctity Laws. As an example, he announced in September 2013 that he would not permit the
Alabama National Guard to provide benefits to same-sex spouses, despite a federal directive to
do so. According to news reports, Governor Bentley stated: "When they're under my command
we will obey Alabama state law." The Governor maintains an office and official residence in
Montgomery. Governor Bentley is sued in his official capacity.
17. Defendant Luther Johnson Strange, III is the Attorney General of the State of Alabarna
Attorney General Strange is the state officer who "shall appear in the courts of. . . the United
States, in any case in which the state may be interested in the result." See Ala Code 36-15-
1(2). He has a statutory duty to give his opinion On any question of law connected with the
interests of the state or with the duties of any of the departments, and also his opinion on
questions of law relating to the duties of certain county and city officers, including court clerks
and probate judges. See Ala. Code 36-15-1(1)(b). He therefore maintains enforcement
authority with respect to the Sanctity Laws and their application to conduct of the State and its
subdivisions and court system. Indeed, a former Attorney General has exercised this statutory
authority in connection with the question whether Alabama must recognize out-of-state same-sex
unions, issuing a formal opinion in 2000 directing that Alabama and its subdivisions should not
recognize civil unions entered into in Vermont. See Ala. Op. Att'y Gen. 2000-129 (Ala. A.G.
2000). Defendant Strange maintains his office in Montgomery, Alabama. Attorney General
Strange is sued in his official capacity.
18. Catherine M Donald is the State Registrar of Vital Statistics ("Registrar"). Alabama law
requires that the Registrar direct and supervise the system of vital statistics and the Office of
Vital Statistics. That office, located in Montgomery, Alabama, maintains and registers
4
certificates of death, and retains the power to amend death certificates that contain errors. See
Ala. Code 22-9A-3; 22-9A-2; 22-9A-14(a); Alabama Admin. Coder. 420-7-1-17. Ms.
Donald therefore has an enforcement connection to the Sanctity Laws because she has the power
to correct David Fancher's death certificate, which incorrectly indicates that David was "Never
Married" at the time of his death, and that he had no surviving spouse. Ms. Donald is sued in her
official capacity.
19. Steven L, Reed is the probate judge for the County of Montgomery. In Case No. 12-
00288, the Probate Court of Montgomery County admitted David's will into the County record
and issued Certified Letters Testamentary to Richard Loh, II appointing him the Personal
Representative of David's estate. Judge Reed has jurisdiction over certain matters related to
David Fancher' s estate, including the power to determine whether Paul is a surviving spouse for
purposes of applying the
laws
of intestate succession. See, e.g., Melton v. Jenkins, 92 So. 3d 105
(2012) (reviewing probate court determination, after trial, whether a purported husband Was in
fact a "surviving spouse"). Judge Reed therefore has an enforcement connection to the Sanctity
Laws. Judge Reed is sued in his official capacity, for declaratory relief only.
20. Defendant Richard I. Lohr, II is an individual who lives in Pinson, Alabama. Lohr is the
administrator of David's estate. Under Alabama law, he, and he alone, is authorized to bring an
action for wrongful death against those persons who caused David's death. He currently is
pursuing such an action., under color of state law. The
action
now is pending in this Court, and is
designated Case 2:12-cv-00533-MHT-SRW (M.D. Ala.). Loht is named in his official capacity.
5
FACTUAL BACKGROUND
21.David and Paul met on July 4th, 2004 for a first date. They became a couple soon
thereafter. Throughout their time together, David occasionally asked Paul to marry him. Paul
demurred at first, but Paul eventually, and enthusiastically, agreed to marry David and the couple
was lawfully married on
.
a beach on Cape Cod, in Massachusetts, on May 20, 2011. A copy of
the marriage certificate is attached as Exhibit A.
22..The wedding ceremony featured a loving cup ceremony, adopted from their shared
Scottish heritage. The cup is engraved with quotation from the Song of Solomon: "I am by
beloved's and my beloved is mine." The tradition is to drink frOm the cup on the wedding day
and on every anniversary, each drinking three times, to the love that was, the love that is, and the
love that will be.
23. Paul reports that hugging David was "like coming home." David and Paul were a support
to each other, traversing illness and adding joy to each other's lives.
24. Both men had been raised as Southern Baptists; Paul was a minister in earlier years.
Eventually, both became active with an Episcopal church, David serving as a greeter as well as
in the pastoral ministry committee of the church and Paul in the choir.
25. The couple made their life together in Alabama. Their home was in Montgomery. David
worked as a director of information technology for a company in Birmingham and Paul is an
associate professor at a university in Montgomery.
26. David made Paul the sole beneficiary Of his will.
27. Paul had said goodbye to David in the early, dark morning of August 1, 2011 as David
left to Birmingham for work. Paul received a call later that morning from Prattville Baptist
Hospital informing him that David had been in an accident.
on
28.The complaint in the wrongful death case pending in this Court states that defendants in
that case, truck drivers and a shipping company, were
traveling North on Interstate 65. . . in rum! Autauga County, Alabama. Defendants'
vehicle negligently and wantonly collided with another vehicle. . causing Defendants'
vehicle to overturn in in the highway, blocking both Northbound lanes of Interstate 65.
At said time and place. . . Charles David Fancher, was also operating a motor vehicle,
traveling North on Interstate 65. . . . Due to the negligence and wanton operation of the
Defendants' vehicle and the nighttime lighting conditions and lack of adequate
emergency reflectors, tape, and emergency warning lights and devices in place by
Defendants, Plaintiffs decedent, Charles David Fancher, was caused to collide with the
2009 Sterling TK UPS tractor trailer truck being driven by [the Defendants].
29. Paul rushed to the hospital carrying the marriage license and other papers such as a power
of attorney. Paul asked to see his husband or learn of his condition, but a hospital employee
initially refused, telling Paul, "T can't release that information to you; we don't recognize same-
sex marriage." Paul pleaded for information, but no doctor or nurse from Prattville Baptist
Hospital ever spoke to Paul, despite Paul's desperate attempt to learn the condition of his
husband.
30. After about a half hour, Paul eventually was permitted beyond the nurse's station to go
see David. Paul still had no idea of David's condition at this point.
31. An attendant arrived and walked Paul down the hall towards an examining room. Paul
asked if David was badly hurt. The attendant turned to Paul, and said, "Well, he's dead."
32. Paul lost strength in his legs, falling to the ground. He reached to the attendant who
stood to the side, offering no support as Paul collapsed.
33. Paul made arrangements and paid for David's burial services at Highland Memorial
Gardens, in Bessemer, Alabama. By law, the funeral director must note certain biographical
information about the deceased on the death certificate. The Highland Memorial funeral director
indicated on the death certificate that David was "Never Married." He left blank the space for
VA
the name of the "Surviving Spouse." When Paul saw the inaccurate information, he asked that it
be changed, but the funeral director refused. A copy of the Death Certificate, signed by
Defendant Catherine M. Donald and registered with the State of Alabama, is attached as Exhibit
B.
Alabama Wrongful Death Actions & Laws Of Intestate Succession
34. An action for wrongful death in Alabama has several unusual features. First, the only
person who may bring an action for wrongful death is the administrator of the decedent's estate.
See Ala. Code 6-5-410(a).
35. Second, the administrator must distribute any damages recovered pursuant to Alabama's
laws of intestate succession, even if the decedent died with a will. See Ala. Code 6-5-410(c);
see also Steele v. Steele, 623 So. 2d 1140, 1141 (Ala. 1993) ("The damages from a wrongful
death award pass as though the decedent died without a will").
36. As a result, Defendant Lohr - the administrator - must distribute any proceeds from the
now-pending wrongful death action in accordance with the
laws
of intestate succession, even
though David died with a will in which he named Paul his sole beneficiary.
37. The intestacy laws specify the portion of the estate, or in this case, of the damages award,
to be distributed to various family members of the deceased.
38. Ala. Code 43-841, for example, sets forth the "share of the spouse" under various
circumstances.
39. Specifically, the provision provides that if there are no children but there is a surviving
parent or parents, the "surviving spouse" is to receive "the first $100,000 in value plus one-half
of the balance of the intestate estate."
8
40.Under Alabama law and the Alabama Constitution, however, Paul cannot be deemed a
surviving "spouse."
41. The Sanctity Laws, prohibit the State of Alabama from recognizing the validity of Paul
and David's marriage, and therefore prohibit recognizing Paul as the surviving "spouse."
42. At least one court has concluded that these provisions require Alabama courts to read the
word "spouse" when used in an Alabama statute to exclude a same-sex spouse. See In re
Adoption ofKR.S., 109 So. 3d 176, 178 (Ala. Civ. App. 2012) (Sanctity
Laws
require court to
interpret the word "spouse" as used in adoption laws to exclude same-sex spouse).
43. Under the Sanctity Laws, Lohr is required to distribute the proceeds from the wrongful
death action as if Paul is not the surviving spouse; and upon information and belief, he intends to
do so absent court order.
Alabama's Disapproval of Lawful SameSex Marriage
44..Marriage is a legal status. Two people become married when, after obtaining a license
from the state, a person authorized by state law solemnizes their union. See, e.g., Ala. Code
30-1-7.
45. Being married confers numerous rights and protections, and imposes numerous
obligations, recognized
by
the state.
46. Alabama, for example, provides that one spouse may not be compelled to testify against
another in a criminal trial. See Ala. Code 12-21-227.
47. One spouse generally may not sell real estate in Alabama without the assent of the other.
See Ala. Code 30-4-12.
48. Historically, husbands have been required to support their wives, and Alabama considers
the failure to do so a crime. See Ala. Code 30-4-50.
49. Married couples, but not unmarried couples, may petition jointly to adopt children in
Alabama. See Ala. Code 26-1 OA-5.
50. And, of special importance to this case, when one spouse dies Without a will, the
surviving spouse is entitled to a substantial share of the decedent's estate. See Ala. Code 43-8-
41(2).
51. In short, Alabama confers a host of benefits, and imposes numerous responsibilities, on
people who are married. This collection of benefits and responsibilities provides official
recognition of the dignity and legitimacy of the married couple's union, and the unique status of
maried persons
under
law.
52. Alabama, like all other states, generally recognizes people within its boundaries to be
"married" even if they became married in another state. The Supreme Court of Alabama, for
instance, has declared the general rule that "a marriage valid where celebrated is valid
everywhere." SeeKrugv. Krug, 296 So. 2d 715, 711 (Ala. 1974).
53. Notwithstanding this general rule, however, Alabama has twice determined to den
recognition to Same-sex couples who have married in another state.
54. In 1998, the Alabama Legislature enacted the Alabama Marriage Protection Act. See
Ala. Code 30=149. That law prohibits, among other things, the recoition of "any mariage
of patties of the same sex that occurred or was alleged to have occurred as a resul(of the law of
any jurisdiction."
55. Soon thereafter, the Office of the Attorney General issued an opinion concluding that the
Marriage Protection Act would prevent the state or any of its . subdivisions or businesses within
the state from recognizing out-of-state marriages or unions between people of'the same sex, and
10
that no provision of the U.S. Constitution would require a different result. See Ala. Op. Att'y
Geri. 2000-129 (Ala. A.G. 2000).
56. Notwithstanding the Attorney General's opinion that the Marriage Protection Act
adequately protected Alabama from out-of-state same-sex unions, the legislature took additional
action just years later to further safeguard Alabama from the specter of same-sex unions.
57. In 2005, the Alabama Legislature proposed a constitutional amendment, entitled the
Sanctity of Marriage Amendment. This amendment utilized language nearly identical to the
language of the Marriage Protection Act seeking to ensure, as a matter of state constitutional law,
that Alabama will not recognize out-of-state same-sex marriages.
58. The Legislature submitted the proposed amendment to voters on June 6, 2006. The
voters approved it, and it was proclaimed ratified on June 28, 2006.
Alabama's Refusal to Recognize Lawful Same-Sex Marriages Is Unconstitutional
59. The effect of the Sanctity Laws is to deny to same-sex married couples the rights and
obligations of marriage that are available to all other married couples within the State of
Alabama.
60. Plaintiff contends that those provisions violate the Due Process and Equal Protection
Clauses of the Fourteenth Amendment to the United States Constitution.
61. Notwithstanding state power to regulate marriage, states lack authority to deny
guarantees of liberty and equality protected by the Fourteenth Amendment.
62. The class of persons harmed by the Sanctity Laws married same-sex couples - is
substantial yet discrete. 2010 census data reveal that 1,704 of the 6,528 same-sex couples in
Alabama identify as spouses, according to reporting by the Williams Institute. See
hftp://williamsinstitute.law.ucla.edul uncategorized/alabamal. On information and belief, a
11
significant portion of these couples who identify as spouses have been legally married out of
state.
63. The U.S. Supreme Court recently addressed the constitutionality of a similar restriction,
and found it to be unconstitutional. United States v. Windsor, 133 S. Ct. 2675 (2013), addressed
Section 2 of the federal "Defense of Marriage Act" (DOMA). DOMA precluded the federal
government from recognizing the validity of same-sex marriages validly entered in jurisdictions
permitting them,
64. The Supreme Court concluded that (1) "DOMA's principal effect is to identify a subset
of state-sanctioned marriages and make them unequal"; (2) "DOMA divests married same-sex
couples of the duties and responsibilities that are an essential part of married life"; and (3) "the
principal purpose and the necessary effect of this law are to demean those persons who are in a
lawful sarnesex marriage." Windsor, 133 5. Ct. at 2694, 2695.
65. For these reasons, the Supreme Court concluded that DOMA's prohibition of federal
recognition of lawful same-sex marriages deprived people in those marriages of due process and
equal protection.
66. Alabama's prohibitions on the recognition of lawful same-sex marriages have precisely
the same unconstitutional purpose and effect as did the DOMA provision found to be
unconstitutional in Windsor. The Sanctity Laws (1) identify lawful sameLsex marriages and
make them unequal; (2) divest from Alabama same-sex married couples numerous tights and
responsibilities (including the right to inherit from an intestate spouse); and (3) demean
Alabamians who lawfully have entered into same-sex marriages.
The Current Dispute Regarding the Constitutionality of the Sanctity Laws and
Distribution of Wrongful Death Proceeds
12
67.There exists an actual controversy between Plaintiff Paul Hard, on one hand, and the
Defendants on the other, regarding the constitutionality of those provisions of the Sanctity Laws
that purport to prevent recognition of Paul as David's "surviving spouse" and to prevent
distribution to Paul of proceeds from the wrongful death action that Lohr currently is
prosecuting.
68. On information and belief, the Defendants apart from Lohr contend that these provisions
are consistent with the U.S. Constitution.
69. On information and belief, Defendant Lohr takes no position on the constitutionality of
the marriage restrictions, but understands that they preclude him from recognizing Paul as a
"surviving spouse" or from distributing to Paul any proceeds from the wrongful death action
Lohr now is prosecuting.
70. This dispute is concrete, live, and immediate.
71. This Court has set trial in the wrongful death, action for the summer of 2014. On
information and belief, the parties to that action have engaged in settlement discussions, and
settlement may be imminent.
72. Absent the issuance of declaratory and injunctive relief including an order that Defendant
Lohr should distribute any proceeds owing to Paul as the surviving spouse, Paul will suffer a
particularized injury in that he will not receive any proceeds (by way of settlement or verdict) to.
which he would be entitled but for the unconstitutional Sanctity Laws.
73. Paul will Suffer irreparable harm including loss of proceeds from the wrongful death suit
and continuing harms related to Alabama's refusal to recognize his marriage unless injunctive
relief is granted. Such harm to Plaintiff outweighs any purported harm to the Defendants
13
resulting from their treating out-of-state marriages of all Alabama citizens equally. Granting
injunctive relief will not disserve the public interest.
COUNT I
(Declaratory and Injunctive Relief Pursuant to the Declaratory Judgment Act -
Violation of Equal Protection Fourteenth Amendment)
74. Plaintiff incorporates all prior paragraphs.
75. If Plaintiff were in a different-sex marriage, he would be treated as a spouse for all
purposes under State law, including under the laws of intestate succession.
76. Solely because Plaintiff is gay and married a person of the same sex, the Sanctity Laws
treat his marriage as a legal nullity, unconstitutionally creating
a
second-tier class of citizens and
marriages.
77. Defendants' failure to recognize marriages of same-sex couples validly entered in other
jurisdictions is unconstitutional under the Equal Protection Clause because it categorically denies
the benefits of marriage to that class of citizens and marriages on the basis of sexual orientation.
78. The Sanctity Laws' prohibition is similarly unconstitutional because it denies Paul
recognition as a surviving spouse with respect to the wrongful death action because he is gay and
because he married a man rather than a woman, without any legitimate basis.
79. The purpose and effect of the marriage restrictions is to single out one class of marriages
- same-sex marriages and make them unequal. The marriage restrictions exclude the people in
those marriages from the benefits and burdens available to all other married persons in the State
of Alabama.
80. "The principal purpose [of the Sanctity Laws] is to impose inequality, not for other
reasons like governmental efficiency." See Windsor, 133 S. Ct. at 2694.
14
81. The Sanctity Laws are invalid for lack of any legitimate purpose that could overcome the
Sanctity Laws' purpose and effect to disparage and to injure those who are due equal personhood
and dignity under law.
82. The Sanctity Laws similarly harm Plaintiff and other married, same-sex couples by
telling them that their otherwise valid marriages are unworthy of state recognition.
83. "The Constitution's guarantee of equality 'must at the very least mean that a bare
[governmental] desire to harm
a
politically unpopular group cannot' justify disparate treatment
of that group." Windsor, 133 S. Ct. at 2693 (quoting Department ofAgriculture v. Moreno, 413
U.S. 528, 534 (1973)).
84. Plaintiff has fulfilled his duties as a surviving spouse and state citizen, yet he is afforded
none of the rights taken for granted by different-sex married couples, including the right to a
death certificate of his husband that does not indicate "Never Married."
85. The Sanctity Laws target lesbian, gay, and bisexual people, by prohibiting recognition of
their marriages, consistent with a long history of governmental disfavored treatment of that class.
86. The Sanctity Laws write "inequality into the entire [Alabama] Code." See Windsor, 133
S. Ct. at 2694.
87. Defendants' failure to recognize Plaintiff's marriage is under color of law.
COUNT II
(Declaratory and Injunctive Relief Pursuant to the Declaratory Judgment Act - Denial of
Due Process - Deprivation of Liberty).
88. Plaintiff incorporates all prior paragraphs.
89. The Sanctity Laws injure lesbian, gay, and bisexual citizens of Alabama who enter lawful
marriages in other jurisdictions and by doing so violate basic due process principles applicable to
Alabama and the Defendants under the Fourteenth Amendment.
15
90.Under the Sanctity Laws, "same-sex married couples have their lives burdened, by reason
of government decree, in visible and public ways. By [their] great reach, [the Sanctity Laws]
touch[] many aspects of married and family life, from the mundane to the profound." See
Windsor, 133 S. Ct. at 2694.
91. The "principal purpose and the necessary effect" of the Sanctity Laws "are to demean
those persons who are in a lawful same-sex marriage." Id. at 2695. Therefore, the Sanctity
Laws are unconstitutional as a deprivation of the liberty of the person protected by the Due
Process Clause under the Fourteenth Amendment.
92. "Private, consensual sexual intimacy between two adult persons of the same sex may not
be punished by the State." Id. at 2692 (citing Lawrence v. Texas, 539 U.S. 558, 567, 123 S.Ct.
2472 (2003)). Yet the Sanctity Laws do precisely that.
93. The Sanctity Laws unconstitutionally demean same-sex couples, "whose moral and
sexual choices the Constitution protects." Id., 133 S. Ct. at 2694.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully prays that this Court enter judgment in his favor
and against Defendants, providing the following relief:
(a) Issue ajudgmnt pursuant to 28 U.S.C. 2201 declaring that those provisions of
the Marriage Protection Act and the Sanctity of Marriage Amendment that
prevent Alabama from recognizing the validity of lawful same-sex marriages
violate the Due Process and Equal Protection Clauses of the Fourteenth
Amendment;
(b) Issue an injunction pursuant to 28 U.S.C. 2202 requiring Alaban.a state officials
to recognize marriages of same-sex couples entered in other jurisdictions on an
equal basis as the marriages of different-sex couples;
(c) Issue an injunction pursuant to 28 U.S.C. 2202 that Defendant Lohr distribute to
Plaintiff any proceeds from the wrongftil death action that are owing to Plaintiff
16
as "surviving spouse," and without regard to the Marriage Protection Act or the
Sanctity of Marriage Amendment;
(d) Issue an injunction pursuant to 28U.S.C. 2202 that Caththne M. Donald correct
David Fancher's death certificate to indicate that David was married at the time of
death and that Paul Hard is his surviving spouse;
(e) Award costs and fees as permitted by
law;
and
(f) Provide such further relief as the Court deems proper.
December 16, 2013
SOUTHERN POVERTY LAW CENTER
By:
d
hJ"
/740
David C.
Dinielli*
(California Bar No. 177904)
Samuel E. Wolfe (ASB-2945-E63W)
Telephone: (334) 956-8200
Facsimile: (334) 856-8481
david.dinielli@splcenter.org
sain.wolfe@splcenter.org
*Application for admission pro hac vice forthcoming
(Attorneys for Plaintiff)
17
PLAINTIFFS
EXHIBIT 4
FILED
2014 Jul-23 PM 01:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

1

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

PAUL HARD, )
)
Plaintiff, )
)
v. ) Case No.
) 2:13-cv-00922-WKW-SRW
)
ROBERT BENTLEY, in his official )
Capacity as Governor of the State of )
Alabama, et al., )
)
Defendants. )

ANSWER OF GOVERNOR ROBERT BENTLEY AND
ATTORNEY GENERAL LUTHER STRANGE

Defendants Robert Bentley, in his official capacity as Governor of the State
of Alabama, and Luther Strange, in his official capacity as Attorney General of the
State of Alabama (collectively, the State Defendants), for their answer to the
Plaintiffs Complaint, state as follows:
Answer to Numbered Paragraphs
1. The State Defendants admit that Plaintiff seeks declarative and
injunctive relief, but deny that he is entitled to the relief sought.

2

2. The State Defendants admit that Plaintiff lives in Montgomery,
Alabama. The State Defendants deny that Plaintiff is legally a widower under
Alabama law.
3. The State Defendants admit that Charles David Fancher was killed in
a traffic accident as alleged. The State Defendants deny that Fancher was legally
the husband of the Plaintiff under Alabama law.
4. Denied.
5. Admitted.
6. Admitted.
7. The State Defendants admit that Alabama Law provides that Plaintiff
is not a surviving spouse.
8. Admitted.
9. Denied.
10. Denied.
11. Denied.
12. The State Defendants admit that Plaintiff seeks the relief designated,
but deny that he is entitled to such relief.
13. The State Defendants do not contest subject-matter jurisdiction,
except to the extent that Plaintiffs Complaint raises a non-justiciable political
question, and except to the extent that Plaintiffs claims are not ripe.

3

14. The State Defendants do not contest venue.
15. Admitted.
16. Admitted
17. The State Defendants admit that the Attorney General is the chief
legal officer of the State of Alabama, that in certain circumstances he provides
legal opinions to State officials, that a former Attorney General issued Ala. Op.
Atty Gen. 2000-129, that he maintains his office in Montgomery, Alabama, and
that he is sued in his official capacity.
18. The State Defendants admit that Donald is the State Registrar of Vital
Statistics with an office in Montgomery, that she maintains and registers
certificates of death, that she has the power to amend death certificates that contain
errors, and that she was sued in her official capacity.
19. The State Defendants admit that Reed is the probate judge for
Montgomery County, that he has jurisdiction over certain matters related to
Fanchers estate, and that he is sued in his official capacity.
20. Admitted.
21. Admitted on information and belief.

4

34. Admitted.
35. Admitted.
36. Admitted.
37. Admitted.
38. Admitted.
39. Admitted.
40. Admitted.
41. Admitted.
42. Admitted.
43. Admitted.
44. Admitted.

5

45. Admitted.
46. Admitted.
47. Admitted.
48. Admitted.
49. Admitted.
50. Admitted.
51. Admitted.
52. Admitted.
53. Admitted.
54. Admitted.
55. Admitted.
56. Admitted that the Alabama Legislature proposed a constitutional
amendment providing that Alabama will not recognize out-of-state same-sex
marriages after passing a statute that provided that Alabama will not recognize
out-of-state same-sex marriages.
57. Admitted.
58. Admitted.
59. Denied.

6

60. The State Defendants admit that Plaintiff contends that Alabamas
marriage laws violate the Constitution, but deny that Plaintiffs contentions are
correct.
61. The State Defendants admit that state law is subject to the Fourteenth
Amendment, but deny that Alabamas marriage laws violate the Fourteenth
Amendment.
62. The State Defendants lack sufficient information to admit or deny the
allegations of paragraph 62.
63. The Supreme Courts decision in United States v. Windsor speaks for
itself.
itself.
itself.
66. Denied.
67. The State Defendants admit that there is a case or controversy
between the Plaintiff and the State Defendants, except to the extent that Plaintiffs
Complaint raises a non-justiciable political question, and except to the extent that
Plaintiffs claims are not ripe.

7

68. The State Defendants admit that they contend that Alabama marriage
laws are consistent with the Constitution. They do not speak for other defendants.
69. The State Defendants do not have sufficient information to admit or
deny allegations about the contentions of Defendant Lohr.
70. Admitted.
71. The State Defendants do not have sufficient information to admit or
deny allegations about the Plaintiffs wrongful death lawsuit.
72. The State Defendants admit that Plaintiffs marital status impacts the
potential distribution of proceeds of a wrongful death lawsuit brought by the estate
of a person Plaintiff claims to be his spouse.
73. The State Defendants admit that Plaintiffs marital status impacts the
potential distribution of proceeds of a wrongful death lawsuit brought by the estate
of a person Plaintiff claims to be his spouse.
Count I
74. The State Defendants adopt and incorporate the foregoing paragraphs.
75. Admitted.
76. The State Defendants admit that Alabama law does not recognize
same-sex marriage as a lawful marriage, and deny any remaining allegations in
paragraph 76.
77. Denied.

8

78. Denied.
79. Denied.
80. Denied.
81. Denied.
82. Denied.
83. Denied.
84. Denied.
85. Denied.
86. Denied.
87. Denied.
Count II
88. The State Defendants adopt and incorporate the foregoing paragraphs.
89. Denied.
90. Denied.
91. Denied.
92. The State Defendants deny that Alabamas marriage laws punish
any person.
93. Denied.
Prayer for Relief
The State Defendants deny that Plaintiff is entitled to the relief sought.

9

Additional Defenses
1. The State Defendants deny any allegation in Plaintiffs Complaint that
is not expressly admitted above.
2. The State Defendants deny that Plaintiff and Charles David Fancher
were married, or that Plaintiff is a surviving spouse, under Alabama law.
3. Plaintiffs Complaint fails to state a claim upon which relief can be
granted.
4. Plaintiffs claims are not ripe, and this Court therefore lacks subject-
matter jurisdiction.
5. Plaintiffs Complaint raises a non-justiciable political question.
6. Plaintiffs claims are barred by the Tenth Amendment.
7. Sexual orientation is not a protected or suspect class to which
heightened scrutiny applies.
8. Alabamas marriage laws are rationally related to legitimate state
interests.
9. Alabamas marriage laws are closely related to important
governmental interests.
10. Alabamas marriage laws are narrowly tailored and further compelling
governmental interests.

10

11. There is no fundamental due-process right to marry someone of the
same sex.
12. It is the public policy of the State of Alabama to recognize marriage
as the legal union of one man and one woman.
13. Alabamas recognition of marriage as the legal union of one man and
one woman does not violate the United States Constitution.
14. Plaintiff has not stated a valid 1983 claim against the State
Defendants, who are sued in their official capacities, and Plaintiff may not recover
damages, costs or attorneys fees against the State Defendants.

LUTHER STRANGE (ASB-0036-G42L)
Attorney General

BY:

s/ James W. Davis

James W. Davis (ASB-4063-I58J)
Laura E. Howell (ASB-0551-A41H)
Assistant Attorneys General


11

OFFICE OF THE ATTORNEY GENERAL
Post Office Box 300152
Telephone: (334) 242-7300
Facsimile: (334) 353-8440
jimdavis@ago.state.al.us
lhowell@ago.state.al.us

Attorneys for the State Defendants,
Governor Robert Bentley and
Attorney General Luther Strange

OF COUNSEL:

David B. Byrne, Jr. (ASB-0354-R69D)
Chief Legal Advisor
Office of the Governor
Alabama State Capitol
600 Dexter Avenue, Suite NB-05
Telephone: (334) 242-7120
David.Byrne@governor.alabama.gov

Additional Counsel for
Governor Robert Bentley


12

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 10th day of March, 2014, I electronically
filed the foregoing document with the Clerk of the Court using the CM/ECF
system which will send notification of such filing to the following counsel of
record:

David C. Dinielli
Samuel E. Wolfe
Southern Poverty Law Center
Montgomery, AL 36104
David.dinielli@splcenter.org
Sam.wolfe@splcenter.org

Tyrone C. Means, Of Counsel
Means Gills Law, LLC
60 Commerce Street, Suite 200
P.O. Box 5058

A copy will be sent by regular United States mail on this date to the following:

Catherine M. Donald
State Registrar of Vital Statistics
Alabama Department of Public Health
P.O. Box 5625

s/ James W. Davis
Of Counsel
PLAINTIFFS
EXHIBIT 5
FILED
2014 Jul-23 PM 01:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

2:14-cv-01091 #14

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IN THE UNITED STATES DISTRICT COURT

FOR NORTHERN DISTRICT OF ALABAMA

Plaintiff Paul Hard ('Paul") lives in Montgomery, Alabama and is a widower.

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