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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA


COLUMBIA DIVISION

Katherine Bradacs and Tracie Goodwin, ) Civil Action No. 3:13-cv-02351-J MC
)
Plaintiffs, )
)
v. )
) DEFENDANTS MOTION FOR
Nimrata (Nikki) Randhawa Haley, in her ) J UDGMENT ON THE PLEADINGS
official capacity as Governor of South )
Carolina; Alan M. Wilson, in his official )
Capacity as Attorney General, )
)
Defendants. )
_______________________________ )


The Defendants move for judgment on the pleadings herein pursuant to Rule 12(c),
FRCP, for the reasons set forth in the attached Memorandum in Support of Motion for J udgment
on the Pleadings which is incorporated by reference. Those grounds include, but are not limited
to, federalism, Eleventh Immunity, lack of standing to sue the named Defendants, the rational
bases for the challenged provisions and the inapplicability of the Full Faith and Credit Clause.

ALAN WILSON
Attorney General
Federal ID No.10457

ROBERT D. COOK
Solicitor General
Federal ID No. 285
Email: BCOOK@SCAG.GOV

[Signature block continues next page]




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3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78 Page 1 of 2
/s/ J . Emory Smith, J r.
J . EMORY SMITH, J R.
Deputy Solicitor General
Federal ID No. 3908
Email: ESMITH@SCAG.GOV

IAN P. WESCHLER
Assistant Attorney General
Federal ID No. 11744

BRENDAN J . MCDONALD
Assistant Attorney General
Federal ID No. 10659

Post Office Box 11549
Columbia, South Carolina 29211
Phone: (803) 734-3680
Fax: (803) 734-3677

Counsel for Defendants
October 23, 2014 Governor and Attorney General
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

Katherine Bradacs and Tracie Goodwin, ) Civil Action No. 3:13-cv-02351-J MC
)
Plaintiffs, )
)
v. ) MEMORANDUM IN SUPPORT OF
) DEFENDANTS MOTION FOR
Nimrata (Nikki) Randhawa Haley, in her ) J UDGMENT ON THE PLEADINGS
official capacity as Governor of South )
Carolina; Alan M. Wilson, in his official )
Capacity as Attorney General, )
)
Defendants. )
_____________________________ ______ )


This suit has been brought in the wrong Court against the wrong parties. These grounds
were not considered in the Fourth Circuit Court of Appeals same-sex marriage decision, and they
are dispositive of this case. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014).
Plaintiffs, who are both female, allege that they were married in the District of Columbia
in 2012, that their marriage is recognized under DC law and that they have two children.
Plaintiffs seek recognition of that marriage by the State of South Carolina and possibly argue that
they are entitled to marry in this State. State law does not allow or recognize same-sex
marriages, and Plaintiffs challenge two of those provisions. S.C. Code Ann 20-1-15; S.C.
Const art. XVII, 15
1
Therefore, this case presents the question of whether those laws are valid,
1
Section 20-1-15 provides that [a] marriage between persons of the same sex is void ab initio
and against the public policy of this State. See also, 20-1-10 (persons who may marry same
sex couples excluded) not challenged in this action.

In March, 2007, S.C. Const art. XVII, 15 became effective and provided as follows:


3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 1 of 45
but also whether this suit should be dismissed due to federalism, Eleventh Amendment Immunity
and lack of standing to sue the named defendants. These laws are valid, and this challenge to
them is not properly before this Court.
The issue of same-sex marriage has proceeded through the Federal Courts in other states
at an unprecedented pace. Centuries of precedent have been swept away in other jurisdictions in
the space of only two or three years. Never have the Courts made judgments so quickly about an
issue that had received little attention before now. But the legal proceedings are not over. The
United States Supreme Court has not weighed in. Many Courts of Appeals have not decided the
cases before them or are still in process in the District Courts. Although a 2-1 Panel of the Court
of Appeals for the Fourth Circuit has overturned Virginias same-sex marriage ban, that case did
not consider issues that are dispositive of the instant case. Bostic. The defenses named above
and discussed, infra, take this case outside of the Bostic precedent and warrant judgment for the
Defendants.
I

PRINCIPLES OF FEDERALISM DICTATE THAT
THIS ACTION IS IMPROPERLY BROUGHT IN FEDERAL COURT

The Court should dismiss this action, based upon overriding principles of federalism.
Because this case seeks to decide the core question of two peoples marital status, it belongs in
A marriage between one man and one woman is the only lawful domestic union
that shall be valid or recognized in this State. This State and its political
subdivisions shall not create a legal status, right, or claim respecting any other
domestic union, however denominated. This State and its political subdivisions
shall not recognize or give effect to a legal status, right, or claim created by
another jurisdiction respecting any other domestic union, however denominated.
Nothing in this section shall impair any right or benefit extended by the State or
its political subdivisions other than a right or benefit arising from a domestic
union that is not valid or recognized in this State. This section shall not prohibit or
limit parties, other than the State or its political subdivisions, from entering into
contracts or other legal instruments.
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state court, rather than in federal court. As only recently stated in United States v. Windsor, 133
S.Ct. 2675, 2691 (2013), the federal courts, as a general rule, do not adjudicate marital status
even where there might otherwise be a basis for federal jurisdiction.
For over a century, the United States Supreme Court, as well as lower federal courts,
have concluded that actions concerning domestic relations, such as those deciding the status of
marriage, are not properly brought in Federal Court but are conclusively within the authority of
state courts. Since the federal Constitutions adoption, such actions have been deemed outside
the province of federal law and equity courts, belonging instead to the state ecclesiastical courts.
See State of Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 384 (1930). Of course, in South
Carolina, the successor to the ecclesiastical court is the probate court. Thus, based upon
compelling interests of federalism, this case should be dismissed as improperly brought here,
rather than in the courts of South Carolina.
As J udge Posner recognized in Jones v. Brennan, 465 F.3d 304 (7
th
Cir. 2006), the
domestic relations exception applies equally to federal questions. Such exception was always
deemed applicable to diversity cases because domestic relations adjudications do not involve law
or equity dispositions. J udge Posner points out that the statute relating to federal questions uses
the same common law or inequity language as the diversity statute. Thus, as he concludes, the
domestic relations exception was intended to apply to federal question cases too. 465 F.3d at
307. While J udge Posner relied upon a jurisdictional analysis, other courts have looked to the
foundations of federalismparticularly justiciability and abstentionin concluding that domestic
relations issues are more properly a matter for state courts to decide, even where federal
questions are involved. Harbach, Is the Family a Federal Question, 66 Washington and Lee L.
Rev., 131, 165-175 (2009).
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Indeed, Elk Grove United School Dist. v. Newdow, 542 U.S. 1, 17 (2004) is strongly
supportive of this federalism analysis. Newdow was a case clearly involving a federal question
a claim that recitation of the Pledge of Allegiance violated the Establishment Clause with respect
to Petitioners daughter, by using the phrase under God. The Supreme Court noted that
Newdows parental status was defined by California domestic relations law. 542 U.S. at 16.
(emphasis added). Thus, the Court concluded that [w]hen the hard questions of domestic
relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand
rather than to reach out to resolve a weighty question of federal constitutional law. 542 U.S. at
17 (emphasis added). See also Ankenbrandt v. Richards, 504 U.S. 609, 716 (Blackman, J .
concurring) [The core of domestic relations adjudication involves declarations of status, e.g.
marriage, annulment, divorce, custody and paternity.].
J ustice Stevens, writing for the Court in Newdow, recognized there are certain occasions
when a federal court absolutely must intercedewith respect to domestic relations issues, such as
those involving racial classifications. However, Newdow noted that such circumstances are
indeed extraordinary and rare. According to J ustice Stevens,
. . . [w]hile rare instances arise in which it is necessary to answer a
substantial federal question that transcends or exists apart from the family
law issue, see e.g. Palmore v. Sidoti, 446 U.S. 429, 432-434 . . . (1984), in
general it is appropriate for the federal courts to leave delicate issues of
domestic relations to the state courts.

542 U.S. at 13 (emphasis added).
As the Court also noted in Palmore v. Sidoti, racial classifications are subject to the
most exacting scrutiny . . . and require justification in the form of a compelling state interest.
By contrast, the Court has previously concluded that discrimination, based upon ones sexual
orientation, must bear a rational relationship to a legitimate government purpose. Romer v.
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Evans, 517 U.S. 620, 635 (1996). Romer employed a rational basis test in striking down an
amendment to the Colorado Constitution which permitted discrimination based upon ones
sexual orientation. See also Thomasson v. Perry, 80 F.3d 915 (4
th
Cir. 1996) [federal policy of
Dont Ask, Dont Tell, does not create a suspect class, and is thus subject to rational basis
scrutiny and does not burden a fundamental right]. Thus, in this case, involving alleged
discrimination based upon sexual orientation, the general rule enunciated in Newdow that the
federal courts leave delicate issues of domestic relations to the state courts -- is controlling.
Accordingly, as Newdow mandates, this case should be dismissed on grounds of federalism.
Lower federal courts have applied Newdow to conclude that these courts should not hear
a case, despite federal claims. In Smith v. Huckabee, 154 F.Appx. 552, 555 (8
th
Cir. 2005), the
Court dismissed a 1983 suit, citing Newdow. In A.N. and D.N. v. Williams, 2005 WL 3003730
(M.D. Fla. 2005), the Court noted it should defer to the state courts in matters of family law.
And, in Whiteside v. Neb. State Health and Human Services, 2007 WL 2123754 (D. Neb. 2007),
the Court dismissed a 1983 action pursuant to the domestic relations exception, based upon
Newdow.
The recent Supreme Court decision, United States v. Windsor, supra is fully supportive of
Newdows analysis. In Windsor, New York recognized same-sex marriages performed
elsewhere, as well as those in that state. However, the federal Defense of Marriage Act
(DOMA) required that, for federal purposes, marriage means only a legal union between
one man and one woman as husband and wife. . . . In the words of the Supreme Court, [w]hat
the State of New York treats as alike the federal law deems unlike by a law designed to injure the
same class the State seeks to protect. As a result, DOMA, because of its reach and extent,
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departs from [the] . . . history and tradition [of the federal government] of reliance on state law to
define marriage. 133 S.Ct. at 2392.
The Windsor Court, sensitive to federalism concerns, reviewed in detail the longstanding
recognition by the Court that, except for deprivation of constitutional rights, such as involving
racial discrimination, domestic relations is an area that has long been regarded as a virtually
exclusive province of the States. Id. at 2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404
(1975)). As explained by the Supreme Court,
[t]he definition of marriage is the foundation of the States broader authority
to regulate the subject of domestic relations with respect to the [p]rotection
of offspring, of property interests, and the enforcement of marital
responsibilities. [citing Williams v. North Carolina, 317 U.S. 287, 298
(1942)]. . . . [T]he states, at the time of the adoption of the Constitution,
possessed full power over the subject of marriage and divorce . . . [and] the
Constitution delegated no authority to the Government of the United States
on the subject of marriage and divorce. Haddock v. Haddock, 201 U.S.
562, 575, 26 S.Ct. 525, 50 L.Ed. 867 (1906); see also In re Burrus, 136 U.S.
586, 593-594, 10 S.Ct. 850, 34 L.Ed. 500 (1890) (The whole subject of
domestic relations of husband and wife, parent and child, belongs to the
laws of the States and not to the laws of the United States). . . .

The significance of state responsibilities for the definition and regulation of
marriage dates to the Nations beginning; for when the Constitution was
adopted for common understanding was that the domestic relations of
husband and wife and parent and child were matters reserved to the States.
Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-384, 50 S.Ct. 154, 74
L.Ed. 489 (1930).

Id.
In short, because DOMA -- a federal act -- interfered with New Yorks determination as
to what constituted a valid marriage, it was necessary for the Supreme Court to step in. As one
commentator has noted, DOMA was an unusual federal intrusion into an issue previously
reserved for the states . . . [i]n fact, before DOMAs enactment in 1996, the federal government
had by history, and tradition relied on the states determinations of what constituted marriage.
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Mir, Windsor and the Discontents . . .,, 64 Duke Law J ournal, 53, 58 (2014). According to
J ustice Kennedy,
[t]he responsibility of the States for the regulation of domestic relations is
an important indicator of the substantial societal impact the States
classifications have in the daily lives and customs of its people. DOMAs
unusual deviation from the usual tradition of recognizing and accepting
state definitions of marriage here operates to deprive same-sex couples of
the benefits and responsibilities that come with the federal recognition of
their marriages. This is strong evidence of a law having the purpose and
effect of disapproval of that class. The avowed purpose and practical effect
of the law here in question are to impose a disadvantage, a separate status,
and so a stigma upon all who enter into same-sex marriages made lawful by
the unquestioned authority of the States.

Id. at 2693 (emphasis added).
In other words, Windsor involved interference [by the federal government] with
traditional state prerogatives, i.e. the status of the marriage relationship. Kitchen v. Herbert,
755 F.3d 1193, 1236 (10
th
Cir. 2014). As Chief J ustice Roberts observed in his Windsor dissent,
[t]he dominant theme of the majority opinion is that the Federal
Governments intrusion into an area central to state domestic relations law,
applicable to its residents and citizens is sufficiently unusual to set off
alarm bells. . . . [I]t is undeniable that [the majority opinion] . . . is based on
federalism.

133 S.Ct. at 2697 (Roberts, C.J . dissenting). The Chief J ustice concluded that the Courts
opinion in Windsor is based upon the historic and essential authority to define the marital
relation, allowing states to continue to utilize the traditional definition of marriage. Id. at
2696.
Scholars agree with Chief J ustice Roberts reading that Windsor is based primarily upon
federalism. As has been stated, . . . J ustice Anthony Kennedys majority opinion in Windsor
left little doubt that federalism principles were crucial to the results. DOMA was
unconstitutional not simply because it discriminated against same-sex couples who were legally
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married in New York, but because it intruded on the states sovereign authority to define
marriage for themselves. Young and Blendel, Federalism, Liberty, and Equality in United
States v. Windsor, 2013 Cato Supreme Court Review, 117, 118 (2013-14). As one scholar has
correctly observed, as a federalism-in-family law decision, Windsor can be linked with a long
line of decisions stressing federal deference to state authority to regulate family matters . . . such
as Elk Grove Unified School District v. Newdow, [supra] . . . United States v. Morrison, [529
U.S. 598 (2000)] . . . Jones v. United States, [529 U.S. 848 (2000)] . . . United States v. Lopez,
[514 U.S. 549 (1995)] . . . and United States v. Yazell, [382 U.S. 341 (1966)]. Wardle,
Reflections on Equality in Family Law, 1385 Mich. St. L. Rev. 1422 (2013).
Accordingly, it is important to note that only last year, the Court reaffirmed the principle
that individual states should determine the status of a marriage, whether that marriage consists of
the traditional relationship, or one which includes the legal union between the same sexes. In
South Carolina, by adopting Art. XVII, 15, voters supported the traditional definition of
marriage by almost 80%, reinforcing the right of citizens to debate so they can learn and decide
and then, through the political process act in concert. . . . See Schuette v. Coalition to Defend
Affirmative Action, 134 S.Ct. 1623, 1636-7 (2014). Such is the province of the States, rather than
the federal courts. According to Newdow, as well as Windsor, federal courts must honor the
States sovereign right in this area, notwithstanding that a constitutional challenge may be
involved. The state courts may and are required to hear such challenges. Huffman v. Pursue,
Ltd., 420 U.S. 592, 611 (1975) [state judges are bound by federal law and must remain faithful
to their constitutional responsibilities under Art. VI of the federal Constitution.]; see also In re
Estate of Mercer v. Bryant, 288 S.C. 313, 318, 342 S.E.2d 591, 593 (1986) [We hold that S.C.
Code Ann. 21-7-480 (1976) is unconstitutional in its entirety because it violates the equal
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protection clause of the United States Constitution.]. Thus, deference to the courts of South
Carolina in this important area of domestic relations does not mean that the state courts will not
consider nor adjudicate the important constitutional claims raised by this case. To the contrary,
our South Carolina courts will certainly do so.
Windsors reliance upon federalism principles is incorrectly distinguished by the Fourth
circuit in Bostic v. Schaefer, 760 F.3d 352, 378 (4
th
Cir. 2014). Contending that Windsor is
actually detrimental to any federalism argument, the Fourth Circuit quoted from Windsor that
state laws defining and regulating marriage, of course, must respect the constitutional rights of
persons. . . (citing Loving v. Virginia, 388 U.S. 1 (1967)). Loving, however, involved a
criminalization of Virginias anti-miscegenation laws, based upon a racial classification, not an
effort to define marriage in its traditional form between a man and a woman. Under the Fourth
Circuits analysis, principles of federalism could never be applied by federal courts if
constitutional rights are alleged. However, the Supreme Court, through J ustice Black, has
consistently recognized that principles of federalism do,
. . . not mean blind deference to States Rights any more than it means
centralization of control over every important issue in our National
Government and its courts. . . . What the concept does represent is a system
in which there is sensitivity to the legitimate interests of both State and
National Governments, and in which the National Government, anxious
though it may be to vindicate and protect federal rights and federal interests,
always endeavors to do so in ways that will not unduly interfere with the
legitimate activities of states.

Younger v. Harris, 401 U.S. 37, 44 (1971). As the Court has emphasized, state courts have the
solemn responsibility equally with the federal courts to safeguard constitutional rights. . . .
Trainor v. Hernandez, 431 U.S. 434, 443, (quoting Steffel v. Thompson, 415 U.S. 452, 460-1
(1974)).
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The Fourth Circuit has applied this domestic relations exception to a constitutional
claim, based upon alleged sex discrimination. In Wilkins v. Rogers, 581 F.2d 399 (4
th
Cir. 1978),
the Court refrained from ruling upon the constitutionality of a state statutory scheme eliminating
the wifes right to dower if the wife deserted her husband. Such statutes were attacked by
invoking federal question jurisdiction, as well as diversity. However, the Fourth Circuit found
that federal courts may not hear such claims:
[i]t has long been held that the whole subject of domestic relations belongs
to the laws of the state and not to the laws of the United States. Ex Parte
Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 34 L.Ed. 500 (1890). Thus,
original jurisdiction of suits primarily involving domestic relations is
improper, notwithstanding that the parties are residents of different states.
E.g. Albanese v. Richter, 161 F.2d 688 (3d 1947), cert. denied, 332 U.S.
782, 68 S.Ct. 49, 92 L.Ed. 365 (1947). And such disputes do not present a
federal question, notwithstanding allegations of sexual discrimination. . . .
Therefore, original jurisdiction over Wilkins claims does not lie.

581 F.2d at 403-404. But see, U.S. v. Johnson, 114 F.3d at 476 (4
th
Circ. 1997).
In short, this Court should stay its hand in this case and defer to the state courts based
upon Newdow and Windsor, as well as Wilkins v. Rogers. The issue here, at its core, is the status
of marriage. Federal courts are ill-equipped to address these kinds of domestic relations
questions. Art. XVII, 15 has never been interpreted by the courts of South Carolina. Rather
than a rush to judgment, this case should be decided in the proper state court the court which
has traditionally handled questions relating to marriage.
This analysis is fully supported by the Supreme Courts decision in Baker v. Nelson, 409
U.S. 810 (1972), which dismissed virtually identical issues to the claims now pending before this
Court for want of a substantial federal question. For the reasons that follow, Baker remains
binding precedent, and fully buttresses the foregoing authorities applying principles of
federalism by applying the domestic relations exception.
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In Baker, two men sought a marriage license. 191 N.W.2d 185, (Minn. 1971). However,
Minnesota law provided that marriage would be recognized only between a man and a woman.
The Minnesota statute was challenged on the basis of the Due Process and Equal Protection
Clauses, as well as allegedly offending the First, Eighth and Ninth Amendments. The Minnesota
Supreme Court stated that [t]hese constitutional challenges have in common the assertion that
the right to marry without regard to the sex of the parties is a fundamental right of all parties and
that restricting marriage to only couples of the opposite sex is irrational and invidiously
discriminatory. 191 N.W.2d at 186.
The Court reviewed Supreme Court decisions, particularly Skinner v. Oklahoma, 316
U.S. 935 (1942), Griswold v. Connecticut, 381 U.S. 479 (1965), and Loving v. Virginia, supra.
According to the Court,
Loving does indicate that not all restrictions upon the right to marry are
beyond the reach of the Fourteenth Amendment. But in common sense and
in a constitutional sense, there is a clear distinction between a marital
restriction based merely upon race and one based upon the fundamental
difference in sex.

191 N.W.2d at 187.
It is important to note that the Minnesota Supreme Court specifically rejected all of
Plaintiffs constitutional challenges. The Court found no Due Process violation, relying
principally upon Skinner. With respect to the Equal Protection claim, the Court concluded that
[t]he equal protection clause of the Fourteenth Amendment, like the due process clause, is not
offended by the states classification of persons authorized to marry. There is no irrational or
invidious discrimination. Id. at 187.
Plaintiffs then appealed the Minnesota Supreme Courts decision to the United States
Supreme Court. The Plaintiffs J urisdictional Statement raised three separate questions to the
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Supreme Court: (1) whether the States refusal to sanctify appellants marriage [between the
same sexes] deprives appellants of their liberty to marry and of their property without due
process of law under the Fourteenth Amendment; (2) whether the States refusal, pursuant to
Minnesota marriage statutes, to sanctify appellants [same-sex] marriage because both are of the
male sex violates their rights under the equal protection clause of the Fourteenth Amendment;
and (3) whether the States refusal to sanctify appellants [same-sex] marriage deprives
appellants of their right to privacy under the Ninth and Fourteenth Amendments. Baker,
J urisdictional Statement No. 71-1027, p. 3 (Feb. 11, 1971). Importantly, the Supreme Court
dismissed [the appeal] for want of a substantial federal question. Baker v. Nelson, 409 U.S. at
810.
The Supreme Courts summary dismissal represents a ruling on the merits and is binding
upon this Court and all lower federal courts. In Hicks v. Miranda, 422 U.S. 332 (1975), the
Supreme Court addressed the effects of a dismissal by that Court for lack of a substantial federal
question. Among other questions raised in Hicks was the issue of whether a summary dismissal,
for want of a substantial federal question, was binding on the District Court and required that
court to sustain the California obscenity statute and to dismiss the case. 422 U.S. at 343. The
Supreme Court concluded that such summary dismissal was indeed binding. According to the
Hicks Court,
[w]e agree with appellants that the District Court was in error in holding
that it would disregard the decision in Miller II. That case was an appeal
from a decision by a state court upholding a state statute against federal
constitutional attack. A federal constitutional issue was properly presented,
it was within our appellate jurisdiction . . . and we had no discretion to
refuse adjudication of the case on its merits as would have been true had the
case been brought here under our certiorari jurisdiction. We are not
obligated to grant the case plenary jurisdiction, and we did not; but we were
required to deal with its merits. We did so by concluding that the appeal
should be dismissed because the constitutional challenge to the California
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statute was not a substantial one. The three judge court was not free to
disregard this pronouncement.

As Mr. J ustice Brennan once observed, (v)otes to affirm summarily, and to
dismiss for want of a substantial federal question, it hardly needs comment,
are votes, on the merits of a case. . . .; [citation omitted]. The District Court
should have followed the Second Circuits advice . . . that unless and until
the Supreme Court should instruct otherwise, inferior courts had best adhere
to the view that if a court has branded a question as insubstantial, it remains
so except when doctrinal developments indicate otherwise; and later in
Doe v. Hodgson, 478 F.2d 537 . . . that the lower courts are bound by
summary decisions by this Court until such time as Court informs (them)
that they are not.

422 U.S. at 343-345.
Moreover, the Court has recognized that a summary dismissal without doubt reject[s]
the specific challenges presented in the statement of jurisdiction and prevent[s] lower courts
from coming to opposite conclusions [1] on the precise issues presented and [2] necessarily
decided by those actions. Mandel v. Bradley, 432 U.S. 173, 176 (1977). The lower court must
determine the precise legal questions and facts presented in the jurisdictional statement.
Windsor v. U.S., 833 F. Supp.2d 394, 399 (S.D.N.Y. 2012).
The Fourth Circuit has also recognized the binding effect of summary dismissals by the
Supreme Court. In Hogge v. Johnson, 526 F.2d 833 (4
th
Circ. 1975), the Fourth Circuit said this:
. . . the United States Supreme Court has spoken to the question among the
circuits with respect to the meaning to be accorded to the dismissal for want
of a substantial federal question. Such is a decision on the merits binding
upon the inferior federal courts. It is stare decisis on issues properly
presented to the Supreme Court and declared by that court to be without
substance. Hicks v. Miranda, 422 U.S. 332. (1975).

The Hogge Court then proceeded to examine the issues presented to the Supreme Court which
resulted in the summary dismissal. The Court concluded that the summary dismissal of the
appeal in Kisley [187 S.E.2d 168 (1972)] is a perfectly clear precedent that is binding upon us.
526 F.2d at 835. See also Idaho Assoc. of Naturopathic Physicians, Inc. v. U.S. Food and Drug.
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Adm., 582 F.2d 849, 853-854 (4
th
Circ. 1978) [In light of the decisions of the Supreme Court
that we have reviewed [summary dispositions], we find that the naturopaths basic claim has
been firmly, repeatedly, and authoritatively rejected. Because we discern nothing in dictating that
their position, once labeled insubstantial, should now be considered otherwise, we affirm the
judgments of the district court].
However, with respect to the binding force of Baker, the Fourth Circuit, in Bostic v.
Schaefer, supra took it upon itself to disregard its own precedents, as well as the directive of the
Supreme Court in Hicks v. Miranda, supra, and other cases. The Fourth Circuit panel assumed
the role reserved to the Supreme Court when it cited Windsor, and noted that Windsor did not
discuss Baker in its opinion or during oral argument. 760 F.3d at 374. Of course, as discussed
above, Windsor was not about the merits of the same-sex issue, but concerned the right of the
individual state to determine the status of marriage without federal interference.
Moreover, the Fourth Circuit relied upon an off-hand remark by J ustice Ginsberg in the
oral argument in Hollingsworth v. Perry, ___ U.S. ____, 133 S.Ct. 2652 (2014), a case which
was resolved based not upon the merits of the same-sex marriage issue, but upon standing. See
760 F.3d, Id. at n. 5. Then, the Bostic Court, while acknowledging that Baker addressed the
precise issues before it, 760 F.3d at 373, proceeded to review the Supreme Courts sex
discrimination cases since Baker, concluding that
[i]n light of the Supreme Courts apparent abandonment of Baker and the
significant doctrinal developments that occurred after the Court issued its
summary dismissal in that case, we decline to view Baker as binding
precedent and proceed to the meat of the opponents Fourteenth
Amendment arguments.

760 F.3d at 375.
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However, as discussed, the Supreme Court recognized in Hicks and other cases that a
Circuit Court of Appeals or a District Court may not make such an assessment regarding the
Supreme Courts doctrinal developments. Such is a matter for the Supreme Court, rather than
lower federal courts, to determine. As the Supreme Court warned in Agostini v. Felton, 521 U.S.
203 (1997),
[w]e do not acknowledge, and we do not hold, that other courts should
conclude our more recent cases have, by implication, overruled an earlier
precedent. We reaffirm that [i]f a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of overruling its own
decisions. Rodriguez de Quijas [490 U.S. 477], supra at 484. . . (1989)].

521 U.S. at 237.
In the context of considering the question of same-sex marriage, unlike Bostic, a number
of courts have concluded that Baker v. Nelson is binding upon them. See McConnell v. Nooner,
547 F.2d 54, 56 (8
th
Circ. 1976) [The District Court dismissed this action on the basis that
Baker v. Nelson . . . is dispositive of the issues raised therein. We agree.]; Wilson v. Ake, 354
F.Supp. 2d 1298, 1304-1305 (M.D. Fla. 2005) [Although Baker v. Nelson is over thirty (30)
years old, the decision addressed the same issues presented in this action, and this Court is bound
to follow the Supreme Courts decision.]; Anderson v. King County, 138 P.3d 963 (Wash. 2006)
(en banc) (Alexander, C.J ., concurring) [referencing Baker, and noting that the Supreme Court
dismissed the appeal for want of a substantial federal question: Thus, the same-sex union as a
constitutional right argument was so frivolous as to merit dismissal without further argument by
the Supreme Court. A similar result is required today.]; Donaldson v. State of Montana, 292
P.3d 364, 371, n. 5 [referencing cases deeming Baker as binding]; Morrison v. Sadler, 821
N.E.2d 15, 19 (Ind. App. 2005) [There is binding United States Supreme Court precedent that
15
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state bans on same-sex marriage do not violate the United States Constitution.]; Lockyer v. City
and County of San Francisco, 95 P.3d 459, 503 (Cal. 2004) (Dennard, J ., concurring and
dissenting) [Indeed there is a decision of the United States Supreme Court, binding on all other
courts and public officials that a state law restricting marriage to opposite-sex couples does not
violate the federal Constitutions guarantees of equal protection and due process of law.].
Only this week, the United States Federal District Court for the District of Puerto Rico
has determined that Baker is binding in this same context. In Conde-Vidal v. Garcia-Padilla,
No. 3:14-cv-01253PG (Oct. 21, 2014), the Court concluded that . . . plaintiffs constitutional
claim challenging the Puerto Rico Civil Codes recognition of opposite-gender marriage fail to
present a substantial federal question, and this Court must dismiss them. Op. at 11(Attachment
A). According to the Court:
[t]he First Circuit expressly acknowledged as much two years agothat Baker
remains binding precedent unless repudiated by subsequent Supreme Court
precedent. Massachusetts v. U.S. Dept. of Health and Human Services, 682 F.3d
1, 8 (1
st
Cir. 2012). According to the First Circuit, Baker presents the adoption of
arguments that presume or rest on a constitutional right to same-sex marriage.

Id. at 12.

Indeed, in oral argument in Hollingsworth v. Perry, supra, J ustice Scalia recognized
Baker v. Nelson as a binding decision on the merits. He asked attorney Ted Olson the following:
Im curious when did it become unconstitutional to exclude [gay] . . .
couples from marriage? 1791, 1868, when the Fourteenth Amendment was
adopted? . . . [s]ome time after Baker [v. Nelson was decided in 1972],
where we said it didnt even raise a substantial federal question? When
when when did the law become this?

Transcript of Oral Argument, at 38, Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) (No. 12-144)
(quoting J ustice Scalia). Thus, contrary to the Fourth Circuits disregard of Baker in Bostic, at
least one member of the Supreme Court does not appear to believe that Baker has been
16
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abandoned by doctrinal developments. This resolution as to the continuing viability of
Baker as not raising a substantial federal question is for the Supreme Court, not the Fourth
Circuit nor this Court to determine.
Thus, the refusal of the Fourth Circuit in Bostic, to follow the directive of the Supreme
Court in Baker, based upon its own assessment of Supreme Court precedent, is contrary to Hicks,
Agostini, and even the Fourth Circuits own cases. The issue of bans upon same-sex marriage
has not yet been addressed by the Supreme Court except in Baker v. Nelsons dismissal for want
of a substantial federal question. All of the issues including Plaintiffs constitutional claims here,
were addressed by the Minnesota Supreme Court, were raised in the Baker J urisdictional
Statement to the Supreme Court, and were thus resolved in Bakers summary disposition. The
impact of Loving v. Virginia, supra, upon the validity of same-sex marriage was specifically
raised to the Supreme Court, as were the Equal Protection and Due Process claims. The Fourth
Circuit panel was not free to disregard Baker, based upon its perception that Baker was outdated
or not in step with subsequent precedent. Agostini, supra. Baker was binding upon the Fourth
Circuit and this Court as well. Thus, Baker is entirely consistent with the recognition of the
long-standing domestic relations exception and the principles of federalism applied in Newdow
and Windsor.
Regardless of Bakers continuing viability, however, the overriding principles of
federalism, discussed above, require dismissal of this case. The core question in this case is the
status of a marriage. Both Newdow and Windsor strongly militate in favor of this matter being
decided in the state courts, rather than this Court. Newdow and Windsor reinforce the principle
that domestic relations -- here the core determination of the status of marriage remains
within the province of the States, rather than with the federal courts. As Newdow emphasizes,
17
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the prudent course is for the federal court to stay its hand rather than to reach out to resolve a
weighty question of federal constitutional law. 542 U.S. at 17. And, as Windsor stresses, [t]he
significance of state responsibilities for the definition and regulation of marriage dates to the
Nations beginning. 133 S.Ct. at 2691. According to the Supreme Court in Windsor, [t]he
definition of marriage is the foundation of the States broader authority to regulate the subject of
domestic relations with respect to the [p]rotection of offspring, property interests and the
enforcement of marital responsibilities. 133 S.Ct. at 2691. Windsor was based upon federal
interference with New Yorks sovereign determination of the definition of marriage in that State.
Based upon these authorities, the Complaint should be dismissed. As the Court in
Newdow well summarized, [d]omestic relations are preeminently matters of state law. 542
U.S. at 12 (quoting Mansell v. Mansell, 490 U.S. 581, 587 (1989)).
II
PLAINTIFFS HAVE SUED THE WRONG PARTIES
A
The Eleventh Amendment Bars this Suit Against These Defendants
Suit is barred against the defendants under the Eleventh Amendment because they lack
specific enforcement authority regarding South Carolinas same-sex marriage provisions. As
stated in McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010):
The Eleventh Amendment provides that [t]he J udicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State. U.S. Const. amend. XI.

The present suit is thus barred unless it falls within the exception announced by
the Supreme Court in Ex parte Young, 209 U.S. 123 (1908), which permits a
federal court to issue prospective, injunctive relief against a state officer to
prevent ongoing violations of federal law, on the rationale that such a suit is not a
suit against the state for purposes of the Eleventh Amendment. Id. at 15960, 28
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S.Ct. 441. The requirement that the violation of federal law be ongoing is
satisfied when a state officer's enforcement of an allegedly unconstitutional state
law is threatened, even if the threat is not yet imminent. Waste Mgmt. Holdings,
Inc. v. Gilmore, 252 F.3d 316, 330 (4th Cir.2001) (citation omitted). The Ex parte
Young exception is directed at officers of the state [who] are clothed with some
duty in regard to the enforcement of the laws of the state, and who threaten and
are about to commence proceedings ... to enforce against parties affected [by] an
unconstitutional act. Ex parte Young, 209 U.S. at 15556 (emphasis added).
Thus, we must find a special relation between the officer being sued and the
challenged statute before invoking the exception. Id. at 157, 28 S.Ct. 441;
Gilmore, 252 F.3d at 331. This requirement of proximity to and responsibility
for the challenged state action, S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324,
333 (4th Cir.2008), is not met when an official merely possesses [g]eneral
authority to enforce the laws of the state, id. at 331 (citation omitted). The
special-relation requirement protects a state's Eleventh Amendment immunity
while, at the same time, ensuring that, in the event a plaintiff sues a state official
in his individual capacity to enjoin unconstitutional action, [any] federal
injunction will be effective with respect to the underlying claim.

Id. at 333. (emphasis added).

Also, as stated in in Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir.
2001):
Ex parte Young requires a special relation between the state officer sued and the
challenged statute to avoid the Eleventh Amendment's bar. Ex parte Young, 209
U.S. at 157. General authority to enforce the laws of the state is not sufficient to
make government officials the proper parties to litigation challenging the law.
Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th
Cir.1996) (internal quotation marks omitted). Thus, [t]he mere fact that a
governor is under a general duty to enforce state laws does not make him a proper
defendant in every action attacking the constitutionality of a state statute. Shell
Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir.1979).

Here, although Governor Gilmore is under a general duty to enforce the laws of
Virginia by virtue of his position as the top official of the state's executive branch,
he lacks a specific duty to enforce the challenged statutes. Thus, we vacate the
judgment against him and remand with instructions that the district court dismiss
him as a defendant in this action. The fact that he has publicly endorsed and
defended the challenged statutes does not alter our analysis. The purpose of
allowing suit against state officials to enjoin their enforcement of an
unconstitutional statute is not aided by enjoining the actions of a state official not
directly involved in enforcing the subject statute.

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TheEx parte Young exception to Eleventh Amendment immunity does not apply to either
defendant because they do not possess more than general authority to enforce the laws of the
State. Section 20-1-15 and art. XVII, 15 do not provide the Attorney General or the Governor
with any specific enforcement authority regarding those marriage provisions, nor do those
provisions even reference those officers or create any penal provisions for them to enforce. The
Attorney Generals general authority as the States chief prosecuting officer (S.C. Const. Art. V,
24; State v. Long, 406 S.C. 511, 753 S.E.2d 425 (2014) and as the chief law officer of the
State (State ex rel. Condon v. Hodges, 349 S.C. 232, 239, 562 S.E.2d 623, 627 (2002)) does not
give him proximity to and responsibility for the challenged state action so as to avoid the bar
of the immunity. McBurney, supra. Similarly, the Governors authority as chief Magistrate
(art. IV, 1) does not create for her a special relationship to the laws at issue and subject her to
the Ex Parte Young exception. See Charleston Cnty. Sch. Dist. v. Harrell, 393 S.C. 552, 561, 713
S.E.2d 604, 609 (2011);
2
Waste Management, supra. Certainly, neither Defendant has the
authority to issue a marriage license under state law to anyone or to grant recognition of
marriages entered out-of-State. 20-1-230 (judge of probate or clerk of court issues licenses).
A Virginia District Court, other than the one that considered Bostic, supra, recently relied
on McBurney and Waste Management to reach a similar decision as to that states Governor in a
same-sex marriage case. Harris v. McDonnell, 988 F. Supp. 2d 603, 611 (W.D. Va. 2013). As
stated in that case, Virginia Governor's general supervisory authority over the Commonwealth's
executive branch does not constitute a special relation to the challenged same-sex marriage ban.
2
Nothing in School District's complaint demonstrates a nexus between Governor or his
authority and Act 189. Instead, School District only alleges that the Governor's ample executive
powers render him an appropriate defendant in any suit where the constitutionality of a statute is
challenged. This is an insufficient reason to name the Governor as a party defendant. Id.


20

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The Virginia Governor has insufficient proximity to and responsibility for Virginia's marriage
laws, and plaintiffs have not shown any involvement by the Governor in the enforcement of
these laws. Id.
Robicheaux v. Caldwell, 986 F. Supp. 2d 749, 752 (E.D. La. 2013), reconsideration
denied (J an. 13, 2014), made a similar conclusion as to the Louisiana Attorney Generals
immunity. The Court found that [t]he Attorney General's sweeping responsibility to enforce the
laws of the State of Louisiana lacks the Ex parte Young specificity nexus between the Attorney
General and the alleged unconstitutional provisions that is essential to defeat sovereign
immunity.
These cases compel the same conclusion here. The Governor and the Attorney General
should be dismissed because they lack a special relation to the laws at issue so as to be subject to
the Ex Parte Young exception to immunity. They do not issue marriage licenses or enforce
license laws. Plaintiffs failed to sue any officials with such authority.
B
Plaintiffs Lack Standing To Sue the Defendants and, Therefore, this Court
Lacks Jurisdiction of this Case

For reasons similar to those discussed in the immunity section, supra, Plaintiffs lack
standing to sue the Defendants. As stated at an earlier stage of Oklahomas same-sex marriage
case:
Before we address the merits of [a] case, we must first determine whether the
federal district court, and likewise this court, has subject-matter jurisdiction over
the dispute. In re Aramark Leisure Serv's, 523 F.3d 1169, 1173 (10th Cir.2008).
Article III standing requires that a plaintiff allege an injury-in-fact that has a
causal connection to the defendant and is redressable by a favorable court
decision. . . . as

21
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Bishop v. Oklahoma, 333 F. App'x 361, 364 (10th Cir. 2009)(Bishop II); see also, Bishop
v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. J an. 14, 2014).
In that case, the Tenth Circuit found a lack of standing of the Plaintiffs to sue the
Governor and the Attorney General regarding their claims:
Here, the Oklahoma officials' generalized duty to enforce state law, alone, is
insufficient to subject them to a suit challenging a constitutional amendment they
have no specific duty to enforce. See Women's Emergency Network v. Bush, 323
F.3d 937, 949-50 (11th Cir.2003); see also Waste Mgm't. Holdings, Inc. v.
Gilmore, 252 F.3d 316, 330-31 (4th Cir.2001) (concluding governor's general
duty to enforce the laws of Virginia insufficient when he lacks a specific duty to
enforce the challenged statutes); Okpalobi v. Foster, 244 F.3d 405, 422-25 (5th
Cir.2001) (en banc) (constitutional challenge to state tort statute against Governor
and Attorney General not viable under the Ex Parte Young doctrine because no
enforcement connection existed between Governor or Attorney General and the
statute in question); 1st Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108, 112-13,
116 (3d Cir.1993) (If we were to allow [plaintiffs] to join ... [the State officials]
in this lawsuit based on their general obligation to enforce the laws ..., we would
quickly approach the nadir of the slippery slope; each state's high policy officials
would be subject to defend every suit challenging the constitutionality of any state
statute, no matter how attenuated his or her connection to it.).

The Couples claim they desire to be married but are prevented from doing so, or
they are married but the marriage is not recognized in Oklahoma. These claims
are simply not connected to the duties of the Attorney General or the Governor.
Marriage licenses are issued, fees collected, and the licenses recorded by the
district court clerks. See Okla. Stat. Ann. tit. 28, 31; Okla. Stat. Ann. tit. 43, 5.
[A] district court clerk is judicial personnel and is an arm of the court whose
duties are ministerial, except for those discretionary duties provided by statute. In
the performance of [a] clerk's ministerial functions, the court clerk is subject to
the control of the Supreme Court and the supervisory control that it has passed
down to the Administrative District J udge in the clerk's administrative district.
Speight v. Presley, 203 P.3d 173, 177 (Okla.2008). Because recognition of
marriages is within the administration of the judiciary, the executive branch of
Oklahoma's government has no authority to issue a marriage license or record a
marriage. Moreover, even if the Attorney General planned to enforce the
misdemeanor penalty (a claim not made here), that enforcement would not be
aimed toward the Couples as the penalty only applies to the issuer of a marriage
license to a same-sex couple. Thus, the alleged injury to the Couples could not be
caused by any action of the Oklahoma officials, nor would an injunction
(tellingly, not requested here) against them give the Couples the legal status they
seek. [footnote omitted]

22
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Bishop II dismissed the claims against the Oklahoma Governor and Attorney General due to
lack of standing. J ust as the plaintiffs in that case had no standing to sue the Oklahoman
Governor and Attorney General due to their lack of enforcement authority as to same-sex
marriage bans, the instant Plaintiffs lack standing to sue Governor Haley and Attorney General
Wilson. This suit should be dismissed against them due to lack of subject matter jurisdiction.
Bishop II.
3

Although the standing problems for Plaintiffs, as parties, is that they cannot sue these
defendants, they also lack standing to assert the claims of third parties such as other same-sex
couples and children of such relationships. In order to maintain third-party standing, a plaintiff
must establish the following three requirements: (1) an injury-in-fact; (2) a close relationship
between the plaintiff and the person whose right is being asserted; and (3) a hindrance to the
third party's ability to protect his or her own interests. Miller v. Montgomery Cnty., Md., 458 F.
App'x 304, 310 (4th Cir. 2011). Plaintiffs fail to meet these requirements for other couples and
the children of such relationships, and they have not sought to bring a class action.
III
LEGAL HISTORY OF MARRIAGE LAW
The above grounds are dispositive of this case. Should this Court wish to consider the
other constitutional issues, the brief summary of the history of marriage law as an opposite sex
institution provides a good background for considering those questions.
3
Kitchen v. Herbert, 755 F.3d 1193, 1203 (10th Cir. 2014) reached a different conclusion as to
the Utah Governor and Attorney General, but is readily distinguishable from the instant case.
The Court found that the Utah Governor and Attorney General had explicitly taken the position
. . . that they have ample authority to ensure that the Salt Lake County Clerk return[s] to her
former practice of limiting marriage licenses to man-woman couples in compliance with Utah
law. Id. 755 F. 3d at 1202. South Carolinas Attorney General and Governor do not have such
authority over our Probate J udges who issue licenses and this action should be dismissed as to
them.
23

3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 23 of 45
A
Generally
For countless centuries, marriage has required both sexesuniting a man and a woman
as husband and wife to be father and mother to any children they produce. As David Hume
explained, "[t]he long and helpless infancy of man requires the combination of parents for the
subsistence of their young." David Hume, An Enquiry Concerning the Principles of Morals, in
Essays and Treatises on Several Subjects 421 (London, Millar 1758). J ohn Locke likewise
understood marriage as made by a voluntary Compact between Man and Woman; and tho its
chief End, [is] Procreation; yet it draws with it mutual Support and Assistance, and a
Communion of Interests too, as necessary not only to unite their Care and Affection, but also
necessary to their common Off-spring, who have a Right to be nourished, and maintained by
them, till they are able to provide for themselves. 2 J ohn Locke, Second Treatise of
Government: Of Civil Government 78, in The Works of John Locke Esq. 180 (London,
Churchill 1714). Noah Webster defined marriage as [t]he act of uniting a man and woman for
life; wedlock; the legal union of a man and woman for life, which is designed for securing the
maintenance and education of children. 2 Noah Webster, An American Dictionary of the
English Language (1
st
ed. 1828). As the Supreme Court noted long ago, marriage is the
foundation of the family and of society, without which there would be neither civilization nor
progress. Maynard v. Hill, 125 U.S. 190, 211 (1888). It is an institution more basic in our
civilization than any other. Williams v. North Carolina, 317 U.S. 287, 303 (1942). And because
it is structured for the procreation and protection of offspring, it is fundamental to the very
existence and survival of the [human] race. Zablocki v. Redhail, 434 U.S. 374, 384 (1978)
(quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)).
24
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B
IN SOUTH CAROLINA
The definition of marriage as an opposite sex legal relationship has been equally settled in South
Carolina since Colonial times. A 1712 statute made clear that only opposite sex marriages were
within the contemplation of the law in that it prohibited bigamy for persons marrying when they
had another husband or wife living (Statutes at Large, 1712, p. 508). (Attachment B). As set
forth in State v. Barefoot, 2 Rich. 209, 31 S.C.L. 209, 1845 WL 2580 (S.C. Ct. of Appeals 1845)
[b]y the common law, single men and women, being of the lawful age, that is, men of 14 and
women of 12 years of age, are left free to enter into the contract of marriage at their own
discretion. Barefoot cites Blackstone, whose pre-revolutionary Commentaries on the Laws of
England (1765-1769) states that [t]he second private relation of persons is that of marriage,
which includes the reciprocal duties of husband and wife . . . . (Bk. 1, Ch. 15), The Laws of
Nature and Natures God, http://www.lonang.com/exlibris/blackstone/bla-115.htm
4
The 1871
Revised Statutes forbade men from marrying various female relatives and in-laws and forbade
women from marrying various male relatives and in-laws. 1871 R.S. 440 (Attachment C).
Lucken v. Wichman, 5 S.C. 411, 413 (1874) stated that [t]he existence of a marriage is a
question of fact [w]hether founded on an express contract, or inferred from circumstances, which
necessarily imply that the relation of husband and wife existed between the parties . . . .
(emphasis added). Lucken was cited in Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647,
4
This book and chapter of Blackstone are cited in Vaigneur v. Kirk, 2 Des. 640, 2 S.C. Eq. 640,
note a1,1808 WL 290 (Court of Chancery of S.C. 1808) for the purpose of resorting to the law
of England to ascertain what constitutes a legal marriage . . . in this country. It is plain from a
reading of Blackstone, which speaks of husband and wife, and his discussion of the common law
as applied to husband and wife, that by using terms like husband and wife or, its Norman French
equivalent, baron and feme, the understanding of English common law was that marriage was a
contract entered into by a man and a woman. Rosengarten v. Downes, 71 Conn. App. 372,
384, 802 A.2d 170, 177 (2002).
25

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651 (1960) which stated that [i]t is essential to a common law marriage that there shall be a
mutual agreement between the parties to assume toward each other the relation of husband and
wife. Cohabitation without such an agreement does not constitute marriage.
Until very recently, the definition of marriage as being limited to an opposite sex couple
was entirely uncontroversial. The redefinition of marriage never became a serious point of
discussion until the Hawaii Supreme Court suggested the possibility in 1993. See Baehr v.
Lewin, 852 P.2d 44, 68 (Haw.), reconsideration granted in part, 875 P.2d 225 (Haw. 1993).
Samesex marriage has been a point of public discussion for less than a generationyet
plaintiffs insist that this new view of marriage is now embedded in our countrys founding
document.
Once Hawaii raised the issue, South Carolina joined the national discussion on the
meaning and definition of marriage. South Carolina adopted a statute and a Constitutional
provision that expressly addressed what had been the law in this State since it joined with twelve
other states to form the United States. See, footnote 1, supra.
These provisions did not change South Carolina law, but instead, ratified existing law.
They did not restrict same-sex couples other than by affirming that opposite sex marriage is the
only lawful domestic union. The law also specified the comity South Carolina would
extend to the licensing decisions of other Stateshardly a novel concept. Like every other
State, South Carolina routinely clarifies the extent to which it will recognize other States
licenses, ranging from licenses to carry weapons to professional licenses for doctors, lawyers,
and others. To avoid the circumvention of its licensing efforts, South Carolina has limited the
recognition that would be given to certain marriages in other states. Plaintiffs cannot avoid
26
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South Carolinas marriage licensing laws by means of a District of Columbia license. See, infra,
Full Faith and Credit argument.
IV
RATIONAL BASIS REVIEW SHOULD APPLY HERE TO PLAINTIFFS
DUE PROCESS AND EQUAL PROTECTION CLAIMS


If this Court dismisses this case on the above grounds, it need not reach this issue of
whether rational basis review should apply. Although Bostic applied strict scrutiny to its
analysis of the same-sex marriage claims in that case, the dissent in the 2-1 decision by J udge
Niemeyer applied rational basis review. Because the Defendants believe that J udge Niemeyers
opinion was the correct one, they offer his analysis to preserve this ground now and should
further review be sought later.
A
No Fundamental Right to Same-Sex Marriage Exists
Plaintiffs ask this Court to apply heightened scrutiny because it burdens the
fundamental right to marry and because it discriminates based on sex and sexual orientation.
Amended Complaint, 5; see also 29 and 38. Bostic applied strict scrutiny because it found
marriage to be a fundamental right that encompasses same-sex marriage. J udge Niemeyer
reached a different, legally correct conclusion.
As J udge Niemeyer stated:
To be clear, this case is not about whether courts favor or disfavor same-sex
marriage, or whether States recognizing or declining to recognize same-sex
marriage have made good policy decisions. It is much narrower. It is about
whether a State's decision not to recognize same-sex marriage violates the
Fourteenth Amendment of the U.S. Constitution. Thus, the judicial response must
be limited to an analysis applying established constitutional principles.

27
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Bostic, 760 F.3d at 385.
He found fundamental flaws in the conclusion of the other two members of the Panel that
same-sex marriage is a fundamental right,
This analysis is fundamentally flawed because it fails to take into account that the
marriage that has long been recognized by the Supreme Court as a fundamental
right is distinct from the newly proposed relationship of a same-sex marriage.
And this failure is even more pronounced by the majority's acknowledgment that
same-sex marriage is a new notion that has not been recognized for most of our
country's history. Ante at 376. Moreover, the majority fails to explain how this
new notion became incorporated into the traditional definition of marriage except
by linguistic manipulation. Thus, the majority never asks the question necessary
to finding a fundamental rightwhether same-sex marriage is a right that is
deeply rooted in this Nation's history and tradition and implicit in the concept
of ordered liberty, such that neither liberty nor justice would exist if [it was]
sacrificed. Glucksberg, 521 U.S. at 721, (quoting Moore v. East Cleveland, 431
U.S. 494, 503 (1977) (plurality opinion); Palko v. Connecticut, 302 U.S. 319
(1937)) (internal quotation marks omitted). . . .

760 F.3d at 386.

The substantive component of the Due Process Clause only protects
fundamental liberty interests. And the Supreme Court has held that liberty
interests are only fundamental if they are, objectively, deeply rooted in this
Nation's history and tradition, and implicit in the concept of ordered liberty,
such that neither liberty nor justice would exist if they were sacrificed.
Glucksberg, 521 U.S. at 72021 (citation omitted) (quoting Moore, 431 U.S. at
503 (plurality opinion); Palko, 302 U.S. at 32526,). When determining whether
such a fundamental right exists, a court must always make a careful description
of the asserted fundamental liberty interest. Id. at 721, 117 S.Ct. 2258 (emphasis
added) (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1
(1993)). This careful description involves characterizing the right asserted in its
narrowest terms. .. .

Under this formulation, because the Virginia laws at issue prohibit marriage
between persons of the same sex, Va.Code Ann. 2045.2, the question before
us is whether the liberty specially protected by the Due Process Clause includes
a right to same-sex marriage. Glucksberg, 521 U.S. at 723 . . . .

When a fundamental right is so identified, then any statute restricting the right is
subject to strict scrutiny and must be narrowly tailored to serve a compelling
state interest. Flores, 507 U.S. at 302. Such scrutiny is extremely difficult for a
law to withstand, and, as such, the Supreme Court has noted that courts must be
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extremely cautious in recognizing fundamental rights because doing so ordinarily
removes freedom of choice from the hands of the people:

The plaintiffs in this case, as well as the majority, recognize that narrowly
defining the asserted liberty interest would require them to demonstrate a new
fundamental right to same-sex marriage, which they cannot do. . . .

Instead, the plaintiffs and the majority argue that the fundamental right to
marriage that has previously been recognized by the Supreme Court is a broad
right that should apply to the plaintiffs without the need to recognize a new
fundamental right to same-sex marriage. They argue that this approach is
supported by the fact that the Supreme Court did not narrowly define the right to
marriage in its decisions in Loving, 388 U.S. at 12; Turner, 482 U.S. at 9496; or
Zablocki, 434 U.S. at 38386.

It is true that, in those cases, the Court did not recognize new, separate
fundamental rights to fit the factual circumstances in each case. For example, in
Loving, the Court did not examine whether interracial marriage was, objectively,
deeply rooted in our Nation's history and tradition. But it was not required to do
so. Each of those cases involved a couple asserting a right to enter into a
traditional marriage of the type that has always been recognized since the
beginning of the Nation-a union between one man and one woman. . . .

To now define the previously recognized fundamental right to marriage as a
concept that includes the new notion of same-sex marriage amounts to a
dictionary jurisprudence, which defines terms as convenient to attain an end.

[T]here are . . . significant distinctions between [same-sex and opposite-sex] the
relationships that can justify differential treatment by lawmakers.

Only the union of a man and a woman has the capacity to produce children and
thus to carry on the species. And more importantly, only such a union creates a
biological family unit that also gives rise to a traditionally stable political unit.
Every person's identity includes the person's particular biological relationships,
which create unique and meaningful bonds of kinship that are extraordinarily
strong and enduring and that have been afforded a privileged place in political
order throughout human history. Societies have accordingly enacted laws
promoting the family unit-such as those relating to sexual engagement, marriage
rites, divorce, inheritance, name and title, and economic matters. And many
societies have found familial bonds so critical that they have elevated marriage to
be a sacred institution trapped with religious rituals. In these respects, the
traditional man-woman relationship is unique.

Thus, when the Supreme Court has recognized, through the years, that the right to
marry is a fundamental right, it has emphasized the procreative and social
ordering aspects of traditional marriage. For example, it has said: [Marriage] is
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an institution, in the maintenance of which in its purity the public is deeply
interested, for it is the foundation of the family and of society, without which
there would be neither civilization nor progress, Maynard v. Hill, 125 U.S. 190,
211 (1888) (emphasis added); Marriage is one of the basic civil rights of man.
Marriage and procreation are fundamental to the very existence and survival of
the race, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942); It
is not surprising that the decision to marry has been placed on the same level of
importance as decisions relating to procreation, childbirth, childrearing, and
family relationships.... [Marriage] is the foundation of the family in our society,
Zablocki, 434 U.S. at 386.

Because there exist deep, fundamental differences between traditional and same-
sex marriage, the plaintiffs and the majority err by conflating the two
relationships under the loosely drawn rubric of the right to marriage. Rather, to
obtain constitutional protection, they would have to show that the right to same-
sex marriage is itself deeply rooted in our Nation's history. They have not
attempted to do so and could not succeed if they were so to attempt.

In an effort to bridge the obvious differences between the traditional relationship
and the new same-sex relationship, the plaintiffs argue that the fundamental right
to marriage has always been based on, and defined by, the constitutional liberty
to select the partner of one's choice. (Emphasis added). They rely heavily on
Loving to assert this claim. In Loving, the Court held that a state regulation
restricting interracial marriage infringed on the fundamental right to marriage.
Loving, 388 U.S. at 12. But nowhere in Loving did the Court suggest that the
fundamental right to marry includes the unrestricted right to marry whomever one
chooses, as the plaintiffs claim. Indeed, Loving explicitly relied on Skinner and
Murphy, and both of those cases discussed marriage in traditional, procreative
terms. Id.

This reading of Loving is fortified by the Court's summary dismissal of Baker v.
Nelson, [supra], just five years after Loving was decided. . . . . The Court's action
in context indicates that the Court did not view Loving or the cases that preceded
it as providing a fundamental right to an unrestricted choice of marriage partner. .
. .The state regulation struck down in Loving, like those in Zablocki and Turner,
had no relationship to the foundational purposes of marriage, while the gender of
the individuals in a marriage clearly does. Thus, the majority errs, as did the
district court, by interpreting the Supreme Court's marriage cases as establishing a
right that includes same-sex marriage.

Bostic v. Schaefer, 760 F.3d at 389-93 (Niemeyer dissenting).
The misapplication of Loving to find same-sex marriage is a significant error by the two
person majority in Bostic. As recognized by a New York Court before that states legislature
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legalized same-sex marriage, the historical background of Loving is different from the history
underlying . . . same-sex marriage. Hernandez v. Robles, 7 N.Y.3d 338, 361, 855 N.E.2d 1, 8
(2006). Race was not a historical element of marriage. It was superimposed on marital law by
J im Crow laws. Id. The prohibition on inter-racial marriage was plainly designed to maintain
White Supremacy. Id. The history of the traditional definition of marriage . . . is of a
different kind. Id. The idea that same-sex marriage is even possible is a relatively new one.
Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any
society in which marriage existed, that there could be marriages only between participants of
different sex. Id.
J udge Niemeyer found other barriers to the Virginia plaintiffs assertion of a fundamental
right:
The plaintiffs also largely ignore the problem with their position that if the
fundamental right to marriage is based on the constitutional liberty to select the
partner of one's choice, as they contend, then that liberty would also extend to
individuals seeking state recognition of other types of relationships that States
currently restrict, such as polygamous or incestuous relationships. . . Under the
Glucksberg analysis that we are thus bound to conduct, there is no new
fundamental right to same-sex marriage. Virginia's laws restricting marriage to
man-woman relationships must therefore be upheld if there is any rational basis
for the laws.

Bostic, 760 F.3d at 392, dissenting opinion (emphasis added). The same conclusion applies to
South Carolinas law.
B

Limiting marriage to the union of a man and a woman does not implicate a suspect class
requiring heightened scrutiny

Bostic did not address whether a suspect class was implicated by Virginias laws because
it found a fundamental right to same-sex marriage. J udge Niemeyer did address this issue and
found no suspect class implicated in that case and that rational basis review applied.
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Any laws based on such suspect classifications are subject to strict scrutiny. See
id. In a similar vein, classifications based on gender are quasisuspect and call
for intermediate scrutiny because they frequently bear[ ] no relation to ability
to perform or contribute to society and thus generally provide[ ] no sensible
ground for differential treatment. Id. at 44041, 105 S.Ct. 3249 (quoting
Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973)
(plurality opinion)); see also Craig v. Boren, 429 U.S. 190, 197 (1976). Laws
subject to intermediate scrutiny must be substantially related to an important
government objective. See United States v. Virginia, 518 U.S. 515, 533 (1996).

But when a regulation adversely affects members of a class that is not suspect or
quasi-suspect, the regulation is presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a legitimate state
interest. City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249 (emphasis added).

The plaintiffs contend that Virginia's marriage laws should be subjected to some
level of heightened scrutiny because they discriminate on the basis of sexual
orientation. Yet they concede that neither the Supreme Court nor the Fourth
Circuit has ever applied heightened scrutiny to a classification based on sexual
orientation. They urge this court to do so for the first time. Governing precedent,
however, counsels otherwise.

In Romer v. Evans, the Supreme Court did not employ any heightened level of
scrutiny in evaluating a Colorado constitutional amendment that prohibited state
and local governments from enacting legislation that would allow persons to
claim any minority status, quota preferences, protected status, or discrimination
based on sexual orientation. Romer, 517 U.S. at 624. In holding the amendment
unconstitutional under the Equal Protection Clause, the Court applied rational-
basis review. See id. at 63133.

And the Supreme Court made no change as to the appropriate level of scrutiny in
its more recent decision in Windsor . . . .

Finally, we have concluded that rational-basis review applies to classifications
based on sexual orientation. See Veney v. Wyche, 293 F.3d 726, 73132 (4th
Cir.2002). . . . .The vast majority of other courts of appeals have reached the same
conclusion.

Bostic, 760 F.3d at 396-97 (Niemeyer dissenting).



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C

The Same-Sex Marriage Restrictions Do Not Discriminate on the Basis of Sex

Plaintiffs claim sex discrimination, but the Supreme Court has never held that
classifications involving sexual orientation amount to sex discrimination. The traditional
definition of marriage treats both sexes equally, as men and women are equally free to marry
members of the opposite sex. No authority binds this Court to find sexual discrimination in
this case and apply a standard of review higher than rational basis. The Bostic opinions did not
address this issue substantively, and the Ninth Circuits decision is not controlling here. Latta
v. Otter, 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7, 2014)(same-sex marriage prohibitions
also constitute sex discrimination).
The fundamental flaw with plaintiffs sex discrimination claim is that the marriage
laws are facially neutral; they do not single out men or women as a class for disparate
treatment, but rather prohibit men and women equally from marrying a person of the same
sex. Baker v. State, 744 A.2d 864, 880 n.13 (Vt. 1999). [T]here is no discrete class
subject to differential treatment solely on the basis of sex; each sex is equally prohibited
from precisely the same conduct. Id.
The Supreme Court has repeatedly upheld classifications that track biological
differences between the sexes. Distinctions based on pregnancy, for instance, are rationally
related to womens different reproductive biology. Geduldig v. Aiello, 417 U.S. 484, 495-
96 (1974) (equal protection) (later superseded by 42 U.S.C.A. 2000e(k) (West 2013)
(Pregnancy Discrimination Amendment)). And immigration law may make it easier for out-
of-wedlock children to claim citizenship from citizen mothers than from citizen fathers, for
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reasons beyond gender stereotypes. Nguyen v. INS, 533 U.S. 53, 62-65 (2001). As J ustice
Kennedy wrote for the Court in Nguyen:
To fail to acknowledge even our most basic biological differencessuch as the
fact that a mother must be present at birth but the father need not berisks
making the guarantee of equal protection superficial, and so disserving it. . .
.The difference between men and women in relation to the birth process is a
real one, and the principle of equal protection does not forbid Congress to
address the problem at hand in a manner specific to each gender.

533 U.S. at 73 (2001).

Under South Carolina law, both sexes are equally free to marry. They do not
discriminate on the basis of sex, and therefore, rational basis review applies.
V

SOUTH CAROLINAS LONGSTANDING DEFINITION OF MARRIAGE
SATISFIES RATIONAL BASIS REVIEW UNDER THE EQUAL PROTECTION AND
DUE PROCESS CLAUSES

Under J udge Niemeyers analysis that no fundamental right is involved, rational basis
review applies to Plaintiffs due process claims. See Colon Health Centers of Am., LLC v. Hazel,
733 F.3d 535, 548 (4th Cir. 2013)(citing Glucksberg). For that same reason and because
Plaintiffs are not part of a suspect class, rational basis review applies to their equal protection
claims. Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2080 (2012).
A
Rational Basis Review Is Extremely Deferential
Rational basis review is a paradigm of judicial restraint. FCC v. Beach Commcns, Inc.,
508 U.S. 307, 313-14 (1993). [J ]udicial intervention is generally unwarranted no matter how
unwisely we may think a political branch has acted. Vance v. Bradley, 440 U.S. 93, 97
(1979). The laws must be upheld if there is any reasonably conceivable set of facts that could
provide a rational basis for the classification between opposite-sex couples and same-sex
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couples. Heller v. Doe, 509 U.S. 312, 319 (1993) (quoting FCC v. Beach Commcns, Inc., 508
U.S. 307, 313 (1993)).
B
Rational Bases Exist for South Carolinas Marriage Laws
In her opinion concurring in Lawrence v. Texas, 539 U.S. 558, 585 (2003),
regarding the Texas statute prohibiting sodomy between homosexuals, Justice
OConnor strongly indicated that marriage laws would withstand a challenge from
same-sex couples. She stated as follows:
That this law as applied to private, consensual conduct is unconstitutional
under the Equal Protection Clause does not mean that other laws
distinguishing between heterosexuals and homosexuals would similarly fail
under rational basis review. Texas cannot assert any legitimate state interest
here such as . . . preserving the traditional institution of marriage. Unlike the
moral disapproval of same-sex relationsthe asserted state interest in this
caseother reasons exist to promote the institution of marriage beyond mere
moral disapproval of an excluded group. (emphasis added).

539 U.S. at 585. Numerous legitimate state interests support South Carolinas
limitation of marriage to opposite-sex couples.
In Bostic, Virginia offered the following grounds as support for its same-sex marriage
ban:
(1) Virginia's federalism-based interest in maintaining control over the definition
of marriage within its borders, (2) the history and tradition of opposite-sex
marriage, (3) protecting the institution of marriage, (4) encouraging responsible
procreation, and (5) promoting the optimal childrearing environment

Bostic, 760 F.3d at 378. Although rejected by the Court of Appeals under strict scrutiny, these
grounds support South Carolinas law under rational basis review. Respectfully disagreeing with
the two person majority opinion in Bostic, we also submit that the grounds would pass a strict
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scrutiny test if applied because they are compelling state interests and are narrowly drawn. 760
F.3d at 377.
J udge Niemeyer analyzed these grounds for Virginias law under a rational basis standard
and his conclusions apply here. He stated:
Virginia has undoubtedly articulated sufficient rational bases for its marriage laws, and I
would find that those bases constitutionally justify the laws. Those laws are grounded on
the biological connection of men and women; the potential for their having children; the
family order needed in raising children; and, on a larger scale, the political order resulting
from stable family units. Moreover, I would add that the traditional marriage relationship
encourages a family structure that is intergenerational, giving children not only a
structure in which to be raised but also an identity and a strong relational context. The
marriage of a man and a woman thus rationally promotes a correlation between biological
order and political order. Because Virginia's marriage laws are rationally related to its
legitimate purposes, they withstand rational-basis scrutiny under the Due Process Clause.

Bostic, 760 F.3d at 395 (4th Cir. 2014). South Carolinas laws serve similar purposes.
Maynard, Meyer and Skinner, supra, imply that a purpose of marriage is to encourage
potentially procreative couples to raise children produced by their sexual union together.
Marriage was not born of animus against homosexuals but is predicated instead on the positive,
important and concrete societal interests in the procreative nature of opposite-sex relationships.
Only opposite-sex couples can naturally procreate, and the responsible begetting and rearing of
new generations is of fundamental importance to civil society. It is no exaggeration to say that
[m]arriage and procreation are fundamental to .. . existence and survival . . . . Skinner, 316
U.S. at 541. The State may rationally conclude that, all things being equal, it is better for the
natural parents to also be the legal parents, and establish civil marriage to encourage that result.
See Hernandez, 855 N.E.2d at 7.
As stated by J udge Niemeyer:
Here, the Commonwealth's goal of ensuring that unplanned children are raised in stable
homes is furthered only by offering the benefits of marriage to opposite-sex couples. As
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Virginia correctly asserts, the relevant inquiry here is not whether excluding same-sex
couples from marriage furthers [Virginia's] interest in steering man-woman couples into
marriage. Rather, the relevant inquiry is whether also recognizing same-sex marriages
would further Virginia's interests. With regard to its interest in ensuring stable families in
the event of unplanned pregnancies, it would not.

Bostic, 760 F.3d at 394.

Preservation of the long history and tradition of marriage as an opposite-sex legal
institution is also a rational basis for sustaining South Carolina law. As discussed above,
marriage has always been understood as being limited to opposite sex couples until the very
recent legislative and judicial consideration of same-sex marriages. This basis for marriage
which has been rooted in law, custom and societal relationships is a rational basis for limiting
marriage to opposite-sex couples. Any change in this definition should come from the
legislature and the voters rather than the judiciary.

VI

THE FULL FAITH AND CREDIT CLAUSE DOES NOT SUPPORT CAUSES OF
ACTION AGAINST STATE OFFICIALS INCLUDING THE INSTANT SUIT AGAINST
THE DEFENDANTS.

Plaintiffs claimsthat the Full Faith and Credit Clause of the United States Constitution
mandates that states recognize same-sex marriage entered in other statesis not supported by
either the history of the Clause or extant Supreme Court jurisprudence on the matter. As
discussed below, a right of action cannot be maintained against the Defendants under that clause,
and marriage licenses are not judgments for which recognition is compelled.
Article IV, Section 1 of the United States Constitution provides that Full Faith and
Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every
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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.
While at first glance the first sentence of the clause appears to be a substantive, self-
executing command to the several states, compelling historical evidence shows that its original
meaning and purpose pertained to evidentiary requirements and methods of proof alone.
5
In fact,
the second sentence of the Clause was considered to be a significant addition to its pre-
constitutional precursors, because that sentence actually did permit Congress to address issues of
substance with respect to what effect the laws of the several states would have throughout the
burgeoning Nation.
6
Congress has not required the States to recognize the marital laws of other
states, and in fact, has provided to the contrary as to same-sex marriages. See, Argument, VI,
infra.


5
See Ralph U. Whitten, The Original Understanding of the Full Faith and Credit Clause and the
Defense of Marriage Act, 32 Creighton L. Rev. 255, 294-95 (1998) ([F]rom English law
through the ratification of the Constitution, the evidence is compelling that the first sentence of
the Full Faith and Credit Clause did not embody conflict of laws commands directing the states
to enforce the statutes, records, and judgments of other states, but merely to admit them into
evidence as full proof of their own existence and contents, with greater, nonevidentiary effect
left for Congress to provide or not as it chose.); David E. Engdahl, The Classic Rule of Faith
and Credit, 118 Yale L.J . 1584, 1588-89 (2009) ([T]he only provisions of federal law requiring
that any of the United States give effect (as distinguished from prima iency) to sister-state Acts,
Records, or judicial Proceedings are those provisions (if any) that Congress has legislatively
prescribed.).

6
See Ralph U. Whitten, Full Faith and Credit for Dummies, 38 Creighton L. Rev. 465, 466-67
(2005) (The evidence . . .indicates that the significant power being granted to the national
government in the clause was granted in the second sentence to Congress in the form of the
power to declare the effect that state statutes, records, and judgments had to be given in other
states.); Whitten, The Original Understanding, supra at 294 (The evidence from the
Constitutional Convention and the ratification period indicates that the first sentence of the Full
Faith and Credit Clause was thought to be unimportant . . . The significant provision of the
Clause was the second sentence, which gave Congress power to declare not only the manner of
roving, but also the effect of state public acts, records, and judicial proceedings.).
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3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 38 of 45
A

The Full Faith and Credit Clause Does Not Support Causes of Action
Against State Officials

The Full Faith and Credit Clause only prescribes a rule by which courts, Federal and
state, are to be guided when a question arises in the progress of a pending suit as to the faith and
credit to be given by the court to the public acts, records, and judicial proceedings of a state other
than that in which the court is sitting. State of Minn. v. N. Sec. Co., 194 U.S. 48, 72 (1904). It
does not, in either its constitutional or statutory incarnations . . . give rise to an implied federal
cause of action. Thompson v. Thompson, 484 U.S. 174, 182 (1988). Myriad courts have
recognized and applied in practice this limitation. Therefore, any claim brought pursuant to the
Full Faith and Credit Clause against state officials in their official capacities necessarily lacks
any constitutional or statutory predicate and is subject to dismissal. See Adar, supra at 151-52.
Accordingly, the instant claim against the Defendants should be dismissed under this Clause.

B

Current and Controlling Supreme Court Jurisprudence
on the Full Faith and Credit Clause Makes Clear that the Clause does not require
Application of Statutes of Other States

The Supreme Court long ago recognized and explained the necessary distinction between
judgments and acts, or statutes, with respect to the application of the Full Faith and Credit
Clause. Indeed, in Alaska Packers Association v. Industrial Accident Commission, 294 U.S. 532,
546 (1935), the Court recognized that there are some limitations upon the extent to which a
state will be required by the full faith and credit clause to enforce even the judgment of another
state, in contravention of its own statutes or policy. But with respect to statutes, the solicitude
for sovereignty is even more pressing, because a rigid and literal enforcement of the full faith
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and credit clause, without regard to the statute of the forum, would lead to the absurd result that,
wherever the conflict arises, the statute of each state must be enforced in the courts of the other,
but cannot be in its own. Id. at 547. In Pacific Employers Insurance Company v. Industrial
Accident Commission of State of California, 306 U.S. 493, 501 (1939), the Court reaffirmed that
the full faith and credit clause is not a means for compelling a state to substitute the statutes of
other states for its own statutes dealing with a subject matter concerning which it is competent to
legislate. Thus statutes, as opposed to judgments, receive radically different treatment. Myriad
cases, decided by the Court up to the present day, establish and confirm this proposition.
In Allstate Insurance Company v. Hague, 449 U.S. 302 (1981), the Court held that the
Full Faith and Credit Clause was not violated by the application of Minnesota law to permit
stacking in an insurance action brought pursuant to a motorcycle accident culminating in a
fatality, even though the insurance policy in question was issued in Wisconsin, the accident in
question occurred in Wisconsin, and all parties were Wisconsin residents at the time of the
accident.
In Sun Oil Co. v. Wortman, 486 U.S. 717 (1988) the Court affirmed that the application
by a Kansas court of its own statute of limitations, to claims arising under the substantive law of
other jurisdictions, did not violate the Full Faith and Credit Clause. In so doing it reaffirmed the
principle that a state cannot be compelled by the Clause to substitute the statute of another state
when dealing with a subject matter concerning which it is competent to legislate. Sun Oil, 486
U.S. at 722 (quoting Pacific Employers Ins. Co. v. Industrial Accident Commn, 306 U.S. at
501). Moreover, Sun Oil, in concert with Allstate, essentially stands for the proposition that
40
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there exists very little restriction on the power of states to apply their laws. Whitten, Original
Understanding, supra at 257, n.14.
7

Baker by Thomas v. General Motors Corp., 522 U.S. 222 (1998) explicitly distinguished
between the credit owed to laws (legislative measures and common law) and to judgments. Id.
at 232. The Court once again noted that states cannot be compelled to substitute the statutes of
other states for its own statutes dealing with a subject matter concerning which it is competent to
legislate. Id. (quoting Pacific Employers Ins. Co., 306 U.S. at 501); see also, Franchise Tax
Board of California v. Hyatt, 538 U.S. 488, 494 (2003) (application of Nevada law to a tort
action brought in Nevada by a Nevada resident, against a California tax collection agency, did
not violate the Full Faith and Credit Clause). The Full Faith and Credit Clause does not compel
states to substitute the statutes of other states for its own statutes dealing with a subject matter
concerning which it is competent to legislate. Id. at 495-496 (quoting Pacific Employers Ins.
Co. 306 U.S. at 501).
The 1948 implementing statute expressly includes Acts. 28 U.S.C.A. 1738. It
provides:
The Acts of the legislature of any State, Territory, or Possession of the United
States, or copies thereof, shall be authenticated by affixing the seal of such State,
Territory or Possession thereto. The records and judicial proceedings of any court
of any such State, Territory or Possession, or copies thereof, shall be proved or
7
See also Patrick J . Borchers, Baker v. General Motors: Implications for Interjurisdictional
Recognition of Non-Traditional Marriages, 32 Creighton L. Rev. 147, 164 (1998) (As things
stand now, therefore, there is a wide divergence in the way in which the Court applies the Full
Faith and Credit Clause to judgments and to laws. J udgmentsassuming that they meet the
Courts exacting definitionare essentially unassailable if presented to another court, unless
entered without personal or subject matter jurisdiction. Sister state laws, however, are by no
means entitled to automatic application. Rather, courts are permitted to apply their own law and
refuse the application of a sister states law in almost all cases. Under the Hague-Wortman line
of cases, a state court is prohibited from applying its own law only if that state has no significant
contacts with the parties or the transaction and the application of forum law cannot be justified
under traditional choice of-law principles.).
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admitted in other courts within the United States and its Territories and
Possessions by the attestation of the clerk and seal of the court annexed, if a seal
exists, together with a certificate of a judge of the court that the said attestation is
in proper form. Such 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.

Fortunately, the Supreme Court has, sensibly, ignored the implementing statute in public
acts cases, with the consequence, as stated by Professor Currie, that power of Congress to
prescribe the effect of public acts remains, for all practical purposes, unexercised. Whitten,
Dummies, supra at 472 quoting Brainerd Currie, The Constitution and the Choice of Law:
Governmental Interests and the Judicial Function, in Selected Essays on the Conflict of Laws
188, 200-01 (1963). No Supreme Court case appears to have applied 1738 in a way that would
mandate that a state substitute another states laws for its own statutes. See, infra, Argument
VI.D regarding 1738C. Accordingly, South Carolina is not required to apply District of
Columbia marriage law to persons in this State.
C
Marriage is Not a Judgment Requiring Recognition
Under the Full Faith and Credit Clause

As noted above, Windsor emphasized that marriage is primarily a state issue. Given the
Supreme Courts jurisprudence on the Full Faith and Credit Clause, defining and recognizing
marriage is most certainly a state interest strong enough to qualify as sufficient to apply the
states own law to a suit seeking to compel a state to recognize a same-sex marriage.
8

8
See Patrick J . Borchers, Baker v. General Motors, 32 Creighton L. Rev. at 170-71 (arguing that
even where a couple marries in a state that permits same-sex marriage and resides there for
several years, the later-acquired domicile is clearly a sufficient connection for the forum state to
make determinations as to their marital status. . . .
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The argument that marriage is a judgment cannot withstand scrutiny. According to the
Second Restatement of Conflicts, a valid judgment is marked by four criteria: a state with the
judicial jurisdiction to act in the case; a reasonable method of notification is employed and a
reasonable opportunity to be heard is afforded to persons affected; a competent court renders
the judgment; and there is compliance with such requirements of the state of rendition as are
necessary for the valid exercise of power by the court. Restatement (Second) of Conflict of
Laws 92 (1971). Marriage is marked by none of these constitutive elementsindeed, marriage
is a consensual union totally lacking in any adversarial or adjudicative admixture, and thus it is
not due the exacting regard judgments enjoy under the Full Faith and Credit Clause.
9

In a similar way, the marriage license itself is not a record that is constitutionally due full
faith and credit. As an initial matter, a license, whether a marriage license or any other sort, is
simply evidence of some right or privilege granted by the laws of a state. Whitten, Dummies,
supra at 477. Moreover, if we were to accept that licenses are given a sort of national imprimatur
by the Full Faith and Credit Clause, every state would then have to give every other states
licenses not only the nod as to their evidentiary sufficiency, but also as to their effect, in that
each license would trigger the same rights and privileges in one state as another. No
constitutional command exists for such an expectation in this context or any otherthe Full
9
See Patrick J . Borchers, Baker v. General Motors, supra at 167 (To treat a marriage . . . as a
judgment would make nonsense out of a great deal of existing full-faith-and-credit doctrine. If
a marriage license is a judgment, then every one of the hundreds of decisions that have refused
to recognize out-of-state marriages has been an undetected violation of the Clause. To carry the
matter further, if a marriage license is a judgment, then so must be fishing and hunting licenses.
J effrey L. Rensberger, Same-Sex Marriages and the Defense of Marriage Act: , 32 Creighton
L. Rev. 409, 421 (1998) (A marriage is not a judgment for full faith and credit purposes . . . but
(truly) a ministerial act. Despite a great deal of nonsense that has been written to the contrary,
all of the hallmarks of a judicial proceeding are missing. There is neither adversariness nor a
neutral decisionmaker with the power to grant or deny relief. Indeed, there is no decisionmaker
empowered to decide what law to apply, a factor which the Supreme Court has relied upon to
deny full faith and credit in another context.).

43

3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 43 of 45
Faith and Credit Clause does not compel one state to treat licenses from another state in the same
manner it does its own licenses.
D

The State Is Not Required to Give Recognition to the District of Columbia Marriage of the
Plaintiffs under 28 U.S.C. 1738C of the Defense of Marriage Act.

In 1996, Congress perceived a threat to state sovereignty posed by the potential of a
misapplication of the Full Faith and Credit clause in the context of an out-of-state same-sex
marriage, see, e.g., 142 Cong. Rec. H7441 (daily ed. J ul. 11, 1996) (Rep. Canady) (detailing
Congress concerns and stating that I cannot imagine a more appropriate occasion for invoking
our constitutional authority to define States obligations under the Full Faith and Credit Clause).
In order to preempt any misapplication of the Full Faith and Credit Clause, Congress enacted
Section 2 of DOMA which provides as follows:
No 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.A. 1738C (West). Therefore, under the terms of this section, unchallenged in
Windsor, the State of South Carolina is not required to recognize the DC marriage.
CONCLUSION
This case is not properly presented to this Court. It is barred by federalism, by the
Eleventh Amendment immunity of the defendants and by the lack of standing of the Plaintiffs to
sue them. The long established and well recognized principles of federalism strongly militate in
favor of allowing the courts of South Carolina to decide these important questions. Other courts
agree. See Conde-Vidal v. Garcia-Padilla, supra. (following Baker v. Nelson, supra.). South
44
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 44 of 45
Carolinas constitutional provision has never been interpreted and the state courts traditionally
have been the proper forum to handle domestic relations such as the status of marriage. The
other issues need not be reached, but to preserve the issues, we assert that J udge Niemeyers
dissent in Bostic presents the sounder constitutional analysis. Although he did not consider Full
Faith and Credit, that clause does not require South Carolina to recognize Plaintiffs District of
Columbia marriage.
Respectfully submitted,
ALAN WILSON
Attorney General
Federal ID No.10457

ROBERT D. COOK
Solicitor General
Federal ID No. 285
Email: BCOOK@SCAG.GOV

/s/ J . Emory Smith, J r.
J . EMORY SMITH, J R.
Deputy Solicitor General
Federal ID No. 3908
Email: ESMITH@SCAG.GOV

IAN P. WESCHLER
Assistant Attorney General
Federal ID No. 11744

BRENDAN J . MCDONALD
Assistant Attorney General
Federal ID No. 10659

Post Office Box 11549
Columbia, South Carolina 29211
Phone: (803) 734-3680
Fax: (803) 734-3677

Counsel for Defendants
October 23, 2014 Governor and Attorney General

45
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-1 Page 45 of 45
ATTACHMENT A

Bradacs v. Haley
Defendants Memorandum in Support of Motion for Judgment on the Pleadings

Conde-Vidal v. Garcia-Padilla, No. 3:14-cv-01253PG
(Oct. 21, 2014)
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-2 Page 1 of 1
ATTACHMENT B
Bradacs v. Haley
Defendants Memorandum in Support of Motion for Judgment on the Pleadings
Statutes at Large, 1712, p. 508
3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-3 Page 1 of 2
i ,
1
i t
fi l-
508
A. 1). 1712
STATUTESAT LARGE
Engli sh Statutes Made of Force.
band or wi fe,
tlte former
bei ngli vi ng.
3 Ins'r. 93.
<'ro. Eli z. 91.
1 J. 1. e. 11. An Act to restrai n all Persons from Marri age unti l thei r former Wi ves
andformer Husbands be dead.
FORASMUCH as di vers evi l-di sposed persons bei ng marri ed, run
Felonytomarry out of one county i nto another, or i nto places where they are not
second as- knowtJ( an(j there become to be marri ed, havi ng another husband or
wi fe li vi ng, to the great di shonor of God, and utter undoi ng of di vers
honest mens chi ldren, and others; [2j Be i t therefore enacted, That i f
any person or persons wi thi n hi s Majesty's domi ni ons of England and
Er0- Can 461. "Wales, bei ng marri ed, or whi ch hereafter shall marry, do at any ti me
Kelyng 79 80 'A^ter the end of the sessi on of thi s present parli ament, marry any per-
tHalesP.C.6'J2. son or persons, the former husband or wi fe bei ng ali ve ; that then every
such offence shall be felony, and the person and persons so offendi ng
shali suffer death as i n cases of felony; [3] and the party and parti es
so offendi ng shall recei ve such and the li ke proceedi ng, tri al and ex
ecuti on i n such county where such person or persons shall be appre
hended, as i f the offence had been commi tted i n such county where
such person or persons shall he taken or apprehended.
T1 e husbandor ^> ro'lAC'e^ always, That thi s Act, nor any therei n contai ned, shall
wi fe, bei ng ab-extencl to ari y person or persons whose husband or wi fe shall he con
sent 7 years ti nually remai ni ng beyond the seas by the space of 7 years together,
fromthe other. or w]]0gg husband or wi fe shall absent hi mor herself the one fromthe
other by the space of 7 years together, i n any parts wi thi n hi s Majes
ty's domi ni ons, the one of them not knowi ng the other to be li vi ng
wi thi n that ti me.
III. Provi ded also, That thi s Act, nor any thi ngherei n contai ned, shai i
Towhat per- extend toany person or persons that are or shall he at the ti me of such
s"jjt'nStStalute marri age di vorced by any sentence had or hereafter tobe had i nthe ecri e-
tend. X " si asti cal court ; [2] or toany person or persons where the former marri age
hath been or hereafter shall he by sentence i n the ecclesi asti cal court
declared tobe voi d and of noeffect; nor toany person or persons for or
by reason of any former marri age had or made, or hereafter tobe had or
made, wi thi n age ofconsent,
ofbkmd"[uss"of Provi ded also, That no attai nder for thi s offence made felony by
dower or
i nheri tance.
thi s Act, shall make or workany corrupti on of blood, loss of dower,
di si nheri son ofhei r or hei rs.
3 Eli z. c. 16,
repealed.
1 J. I.e. 12. An Acte agai nst Conjurati on, Wi tchcraft, and deali nge wi th Evi ll (nul
Wi cked Spi ri ts.
BEi t enacted, by the Ki ngour Sovrai gne Lorde, the Lordes Spi ri tuall
and Temporall and the Comons i n thi s present Parli ament assembled, ami
by the autbori ti e of the same. That the statute made i n the fi fth yci re
of the rai gne of our late Sovrai gne Lady, of most famnn* and happi e
memori e, Queene Eli zabeth, i nti tuled an Acte agai : conjurati on?,
i nchantments and wi tchcrafts, be fromthe Feaste ofSt. IN ell the Arch-
angell nexte comi nge, for and concerni nge all offences to omi tted atler
the same Feaste, utterli e repealed.
. 11. And for the better restrayni nge the sai d offenses and more se
Invoki ngor puni shi nere the same, he i t further enacted by the autbori ti e afores
consulti nu wnlj f & , i -r-i c i n-- , i
' ' i hat i f any person or persons, alter the sai de reaste oi St. Mi chae!
Archangell next comi nge, shall use, practi se or exerci se i nvocati on or
evi l spi ri ts,
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3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-3 Page 2 of 2

ATTACHMENT C

Bradacs v. Haley
Defendants Memorandum in Support of Motion for Judgment on the Pleadings

1871 R.S. 440



3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-4 Page 1 of 2

3:13-cv-02351-JMC Date Filed 10/23/14 Entry Number 78-4 Page 2 of 2