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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Colleen Therese Condon and Anne
Nichols Bleckley,

)
)
)
Plaintiffs,
)
)
v.
)
)
Nimrata (Nikki) Randhawa Haley, in her )
official capacity as Governor of South
)
Carolina; Alan M. Wilson, in his official
)
Capacity as Attorney General; and Irvin
)
G. Condon in his official capacity as
)
Probate Judge of Charleston County,
)
)
Defendants.
)
__________________________________ )

Civil Action No. 2:14-cv-04010-RMG

MEMORANDUM OF GOVERNOR
AND ATTORNEY GENERAL
IN OPPOSITION TO MOTION FOR
PRELIMINARY INJUNCTION AND
ALTERNATIVE MOTION / REQUEST
FOR STAY

Governor Nikki Haley and Attorney General Alan Wilson (Defendants) oppose
Plaintiffs Motion for Preliminary Injunction for the reasons discussed below.
This suit is barred and should not proceed due to multiple grounds not considered by the
Fourth Circuit Court of Appeals same-sex marriage panel decision. Bostic v. Schaefer, 760 F.3d
352 (4th Cir. 2014). Those grounds include the Rooker-Feldman doctrine, the failure of the 2-1
Bostic panel decision to recognize and apply prior, controlling precedent of the Fourth Circuit,
Federalism, the Eleventh Amendment, lack of standing to sue the Governor and the Attorney
General as well as other doctrines warranting dismissal including abstention and comity to
earlier filed federal proceedings.
Plaintiffs are of the same-sex and seek marriage in this state. They object to a State
Supreme Court ruling, discussed infra, that directed the Defendant, Judge Condon, not to issue
them a marriage license.

State law does not allow or recognize same-sex marriages, and

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Plaintiffs challenge those provisions. S.C. Code Ann 20-1-10 and 20-1-15; S.C. Const art.
XVII, 15 (Attachment A to this Memorandum). This case not only presents the question of
whether those laws are valid, but also whether this suit should be dismissed due to the above
defenses. Although those defenses are dispositive, to the extent necessary, these Defendants
argue against the precedent of Bostic on the merits of Plaintiffs challenge to South Carolina law.
Our States laws are valid under the equal protection and due process clauses. Among other
errors, the Bostic panel has misapplied the Loving v. Virginia, 388 U.S. 1 (1967) to alter an
element historically inherent in marriage, a union of a man and a woman.
The issue of same-sex marriage has proceeded through the Federal Courts in other states
at an unprecedented pace. Centuries of precedent have been swept away in other jurisdictions in
the space of only two or three years. Never have the Courts made judgments so quickly about an
issue that had received little attention before now. But the legal proceedings are not over. The
United States Supreme Court has not weighed in. Many Courts of Appeals have not decided the
cases before them or are still in process in the District Courts. Although a 2-1 Panel of the Court
of Appeals for the Fourth Circuit in Bostic has overturned Virginias same-sex marriage ban, that
Panel did not consider defenses that are dispositive of the instant case, and the en banc Court of
Appeals has not ruled on those defenses or the merits of the constitutional challenges. The
defenses named above and discussed, infra, take this case outside of the Bostic precedent and
warrant judgment for the Defendants.
I
JURISDICTIONAL AND OTHER BARS TO THIS SUIT
The following grounds deprive this Court of jurisdiction or otherwise warrant dismissal
of this suit or deference to other pending Federal litigation.

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A
The Rooker-Feldman Doctrine Is A
Jurisdictional Bar To This Action
This Court lacks jurisdiction to proceed in this case because the RookerFeldman
doctrine bars review of the following Order of the South Carolina Supreme Court in State ex rel
Wilson v. Condon, No. 2014-002121, 2014 WL 5038396, at *1-2 (S.C. Oct. 9, 2014):
Currently, the issue of whether Article XVII, Section 15 of the South Carolina
Constitution . . . and Sections 20110 through 15, violate the United States
Constitution is actively under consideration by Judge Childs in the Bradacs case
[.1.
Katherine Bradacs and Tracie Goodwin v Haley, et al, Civil Action No.
3:13-cv02351-JFA] . . . Respondent and all other probate judges are hereby
directed not to issue marriage licenses to same-sex couples pending a decision by
the Federal District Court in Bradacs. (emphasis added)
.
Plaintiffs place this ruling at issue in their complaint in that allege that Defendant Judge Condon
declined to issue [them a marriage] license for the sole reason that the proceedings instituted by
Defendant Wilson resulted in an order from the South Carolina Supreme Court forbidding the
issuance of marriage licenses to same-sex couples before an order requiring such issuance had
been entered by the United States District Court for the District of South Carolina. Complaint,
23. Their Prayer asks that Judge Condon be enjoined in this action from enforcement of any
provisions of South Carolina law that exclude same-sex couples from marriage. Therefore, they
request review and relief squarely in conflict with the Supreme Courts order. 1
0F

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

Defendant Judge Condon, on Friday, asked the Supreme Court to amend its Order to apply to
any other same-sex marriage case pending before the Federal District Court of South Carolina.
At least until the Supreme Court changes its Wilson v. Condon order, this Court lacks authority
to proceed in the instant case under Rooker-Feldman and should abstain, as discussed infra.

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of the federal claims alleged in the Complaint. . . . Except in limited circumstances not applicable
here, the only federal court with the authority to reverse or modify the judgments of state courts
is the Supreme Court itself. Exxon Mobil, 544 U.S. at 283 (citing 28 U.S.C. 1257). Stratton v.
Mecklenburg Cnty. Dep't of Soc. Servs., 521 F. App'x 278, 288 (4th Cir. 2013) cert. denied, 134
S. Ct. 1290 (2014).
Last year, the Honorable David Norton applied the RookerFeldman doctrine to bar
review of State Court orders related to that matter. As he stated:, this court must abstain from
hearing an injunctive challenge to that [Supreme Court] decision under RookerFeldman. Only
the United States Supreme Court can review the South Carolina Supreme Court's judgment that
adoption by Adoptive Couple would be in the best interests of the child. V.B. ex rel. Smith v.
Martin, No. 2:13-CV-2073-DCN, 2013 WL 4018248, at *1 (D.S.C. July 31, 2013).
[T]he test[for application of Rooker-Feldman] is . . .whether the relief sought in the
federal suit would reverse or modify the state court decree. Adkins v. Rumsfeld, 464 F.3d 456,
464 (4th Cir. 2006). Plaintiffs certainly request such relief because it is contrary to the Supreme
Courts Order that probate judges not issue marriage licenses pending the Bradacs decision. That
Order was specific to the Bradacs case. It was not conditioned on other Federal litigation such
as the instant, subsequently filed case, and an order in this case would conflict with that Order.
Plaintiffs could have sought relief consistent with the Supreme Courts Order.

As

intervening parties in the State v. Condon case, they could have petitioned for certiorari from that
Order. They could have requested that the Supreme Court modify the Order to include any other
federal litigation in this State.

They could have intervened in Bradacs and requested a

preliminary injunction in that case. They could ask this Court to certify the question to the
Supreme Court of whether its Order would encompass this litigation (Rule 244, SCACR), but

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they have not done so. Instead, they seek relief in the instant case that is contrary to the Supreme
Courts Order in State v Condon. They cannot do so, and this Court lacks jurisdiction to enter an
order in this case contrary to the State Supreme Court as that Order is now written.
Although Plaintiffs argue that Bradacs is different because it asserts a claim for
recognition of a District of Columbia marriage license, it requests that same-sex persons be
allowed to marry in South Carolina. Moreover, the South Carolina Supreme Court expressly tied
its directive to probate judges to the Bradacs litigation. Plaintiffs effort to distinguish Bradacs
and criticism of the Defendants Petition that resulted in the Supreme Court order further
demonstrates that they are launching a collateral attack on the ruling of the Supreme Court.
Although the Supreme Courts Order is clearly limited to Bradacs, if arguendo, this
Court has questions regarding the scope of that Order, the Defendants Governor and Attorney
General respectfully request that this Court certify those questions to the State Supreme Court
pursuant to Rule 244. They believe that the Supreme Court would respond quickly to any such
certification so that no significant delay would result from that process.
B
This Court Is Not Bound By Bostics Conclusion That Baker v. Nelson Need Not Be
Followed By It; Further the Fourth Circuit Did Not Consider that Federalism Requires
These Issues To Be Brought In State Court
1
Introduction
Bostic is not binding on this Court with respect to the Fourth Circuit panels conclusion
that it need not follow Baker v. Nelson, 409 U.S. 810 (1972). Baker dismissed an appeal from
the Minnesota Supreme Court for want of a substantial federal question on the precise issue
before Bostic and this Court: whether there is a federal constitutional right of same-sex couples

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to marry. See Baker, 191 N.W.2d 185 (Minn. 1971). In summarily dismissing the appeal in
Baker, the Supreme Court also necessarily rejected the argument made by plaintiffs there that the
right to marry in such instance is a fundamental right.
However, the Fourth Circuit panel in Bostic held that Baker was no longer binding
precedent because of the significant doctrinal developments that occurred after the [Supreme]
Court issued its summary dismissal in that case. 760 F.3d at 375. This was a clear disregard by
the panel of its own precedents, as well as an ignoring of the command of the Supreme Court in
Hicks v. Miranda, 422 U.S. 332 (1975).
In other words, it is clear that Bostic, although acknowledging that the issues in Baker
were identical to those before it, ignored the well-established Fourth Circuit prior panel rule
that one panel cannot overrule a decision by another panel. McMellon v. United States, 387
F.3d 329, 332 (4th Cir. 2004) (citing cases). This rule requires a panel to follow the earlier of
conflicting opinions. Id. Beginning in 1975, with the panel decision in Hogge v. Johnson, 526
F.2d 833, 835 (4th Cir. 1975), the Fourth Circuit, adhering to the mandate of the Supreme Court
in Hicks v. Miranda, supra, found that the Supreme Courts summary dismissal for want of a
substantial federal question on the same issues is a perfectly clear precedent that is binding on
us. Even though, in Hogge, the Fourth Circuit panel disagreed with the summary dismissal, and
believed that a substantial federal question existed, former Supreme Court Justice Tom Clark
sitting as a Fourth Circuit panel member -- stated that the panel was foreclosed by Hicks
holding that such a summary dismissal by the Supreme Court, constituted a decision on the
merits and was, as a result, binding upon the panel.
concurring).

Hogge, 526 F.2d at 836 (Clark, J.

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Fourth Circuit decisions have consistently applied this prior panel rule, established in
Hogge, thus requiring that summary disposition by the Supreme Court must be followed -regardless of the panels view of the merits of the Supreme Courts action. See, Thonen v.
Jenkins, 517 F.2d 3, 7 (4th Cir. 1975) [Although we agree . . . that the Supreme Courts
summary affirmance of a three judge court decision is not as strong precedent as a full Supreme
Court opinion . . ., we also agree with the Second Circuit that the privilege of disregarding every
summary Supreme Court holdings rests with that court alone.]; Goldfarb v. Sup. Ct. of Va., 766
F.2d 859, 862 (4th Cir. 1985) [The summary affirmance of this decision by the United States
Supreme Court necessarily agreed that a rational basis lay beneath Rule 1A: 1(4)(d), and we may
not re-open that foreclosed question. (citing Hicks v. Miranda, supra)]; Idaho Assoc. of
Naturopathic Physicians, Inc. v. U.S. Food and Drug. Adm., 582 F.2d 849, 853-854 (4th Circ.
1978) [reviewing a number of summary affirmances and dismissals by the Supreme Court on the
issue and stating that [i]n light of the decisions of the Supreme Court that we have reviewed, we
find that the Naturopaths basic claim has been firmly, repeatedly and authoritatively rejected.];
Repub. Party of N.C. v. Hunt, 991 F.2d 1202, 1204 (Phillips, J., dissenting from denial of
rehearing en banc) [While such a summary affirmance does not of course foreclose later, full
consideration of the dispositive issue by the Supreme Court . . . the decision affirmed and its
rationale are binding on this court until that happens]; Westinghouse Elec. Corp. v. State of Md.
Comm. On Human Relations, 520 F.Supp. 539, 547 (D. Md. 1981) [following Hicks and Hogge,
the District Court adhered to summary dispositions of Supreme Court, concluding that only the
Supreme Court could disregard these precedents].

None of these Fourth Circuit decisions

recognize that a Circuit Court or District Court is at liberty to decide that a summary decision by
the Supreme Court has been abandoned or superseded by doctrinal developments.

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Accordingly, there is an irreconcilable conflict between Hogge and its progeny and
Bostic in this regard. Applying the prior panel rule, set forth in McMellon, it is evident that
Bostic is not binding precedent upon this Court with respect to its conclusion that Baker v.
Nelson is no longer good law. Hogge and subsequent Fourth Circuit decisions, referenced
above, adhere to the rule set forth in Hicks v. Miranda, supra that lower courts are bound to
follow the Supreme Courts summary decisions until such time as the [Supreme] Court informs
[them] that [they] are not. Hicks, 422 U.S. at 344. The Bostic panel ignored this rule, taking it
upon itself to decide that doctrinal developments render Baker v. Nelson archaic or
abandoned, and thus no longer applicable. In short, regardless of the merits of Plaintiffs
claims, Hogge and the subsequent decisions, referenced above, must be followed by this Court.
Hogge and these other earlier panel decisions control here, thereby requiring adherence to Baker.
Any subsequent doctrinal developments, found by Bostic, must be assessed by the Supreme
Court, not by the Fourth Circuit, or by this Court. See Conde-Vidal v. Garcia-Padilla, ____
F.Supp. 2d ____, 2014 WL 5361987 (D.C.P.R. 2014) [Baker is binding on District Court].
Moreover, any conclusion by Bostic regarding federalism is not binding here, either.
Bostic addressed the argument that a federalism-based interest in defining marriage is a suitable
justification for the Virginia Marriage Laws. 760 F.3d at 378. However, the Fourth Circuit
rejected this argument, concluding that United States v. Windsor, 133 S.Ct. 2675 (2013) does
not teach us that federalism principles can justify depriving individuals of their constitutional
rights; it reiterates [Loving v. Virginias ] admonition that the states must exercise their authority
without trampling constitutional guarantees. Virginias federalism-based interest in defining
marriage cannot justify its encroachment on the fundamental right to marry. 760 F.3d at 379.

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However, Bostic did not address the same federalism argument we are making in this
case. Our argument, in contrast to Bostic, and recognized in Windsor and Elk Grove Unified
School Dist. v. Newdow, 542 U.S. 1 (2004), abrogated on other grounds, Lexmark Intern., Inc. v.
Static Control Components, Inc., 134 S.Ct. 1377 (2014), is based upon the domestic relations
exception, applying the long-held view that the federal courts, as a general rule do not
adjudicate marital status even where there might otherwise be a basis for federal jurisdiction.
Windsor, supra, 133 S.Ct. at 2691. As one Court has put it, [a] federal court presented with
matrimonial issues or issues on the verge of being matrimonial in nature should abstain from
exercising jurisdiction so long as there is no obstacle to their full and fair determination in state
courts. American Airlines v. Block, 905 F.2d 12, 146 (2nd Cir. 1990). That is the case here.
Indeed, scholars as well as courts, including the Fourth Circuit, have concluded that the
domestic relations exception is applicable to federal question jurisdiction, thereby depriving a
federal court of subject matter jurisdiction. As one leading scholar has recently concluded, there
is no federal question jurisdiction to hear domestic relations matters, explaining that
[t]he federal courts simply do not have the statutory federal question
jurisdiction that would enable them to hear cases challenging the definition
of marriage, divorce, alimony, child custody, or probate. These cases raised
religious questions, which is why in England they were heard by the
Ecclesiastical Courts and not by the common law courts or the courts of
equity.
Calabresi, The Gay Marriage Cases and Federal Jurisdiction (October 2, 2014), Northwestern
Law and Econ. Research Paper No. 14-18; Northwestern Public Law Research Paper No. 14-50,
at 47. Available at SSRN: http://ssm.com/abstract=2505514 or http://dx.doi.org/10.2139/ssm.
2505515. This analysis is entirely consistent with that of another scholar who has stated that
[n]ot infrequently, courts have dismissed federal question cases for lack of subject matter

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jurisdiction, citing the domestic relations exception.

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Harbach, Is The Family a Federal

Question? 660 Washington and Lee L.Rev. 131 146, and cases collected at n. 59.
Among the numerous cases cited by Professor Harbach is the Fourth Circuit decision in
Wilkins v. Rogers, 581 F.2d 399, 403-404 (4th Circ. 1978). Wilkins involved, among other
things, a wifes suit against her former husband regarding repayment of money allegedly
advanced during the marriage as well as support and maintenance. Plaintiffs wife alleged that
she was a victim of unconstitutional sex-based discrimination sanctioned by the South Carolina
court system. Id. at 403. She sought to invoke the federal courts original jurisdiction under
both diversity, as well as federal question jurisdiction.
The Fourth Circuit, however, applied the domestic relations exception to dismiss the case
on both jurisdictional grounds, noting that [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. Id.
Thus, according to the Fourth Circuit, . . . such disputes do not present a federal question,
notwithstanding allegations of sexual discrimination. . . . Therefore, original jurisdiction over
Wilkins claims does not lie. Id. at 404. (emphasis added).
While the Fourth Circuit went on to apply Pullman and other forms of abstention as well,
it is clear, as Professor Harbach concludes, that the Wilkins case stands for the proposition that
the domestic relations exception deprives federal courts of federal question jurisdiction.
Again, the prior panel rule would govern here, requiring this Court to follow Wilkins instead of
the Bostic decision. Like Baker v. Nelson, supra, which dismissed the same sex marriage issue
for want of a substantial federal question, Wilkins dismissed a federal claim regarding a marital
dispute, based upon alleged sex discrimination, for precisely the same reason as Baker want of

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a federal question. Therefore, this Court lacks subject matter jurisdiction and is obligated to
follow Wilkins, as well as Baker.
In summary, the Fourth Circuit panel possessed no authority to disregard Baker, which
constitutes the one Supreme Court decision on the merits regarding same-sex marriage. While
the Fourth Circuit speculated as to doctrinal developments, i.e. subsequent decisions of the
Supreme Court and how those cases may be applicable to the constitutional issue presented,
application of Baker should have been all that was necessary to decide Bostic. The Court was
not free to determine the Supreme Courts doctrinal developments.

Nor is this Court.

Moreover, the Fourth Circuit panel did not consider the issue of subject matter jurisdiction or
federalism as it relates to the longstanding domestic relations exception, as applied in both
Wilkins, as well as Newdow and Windsor. We will discuss each of these issues in greater detail
below.
2
Principles of Federalism dictate that
this action is improperly brought in Federal Court
As the Fourth Circuit has stated, [i]t is well established that before a federal court can
decide the merits of a claim, the claim must invoke the jurisdiction of the court. Miller v.
Brown, 462 F.3d 312, 316 (4th Cir. 2006).

Such Art. III jurisdiction includes issues of

justiciability. Id. Federal courts, in order to satisfy the . . . overriding and time-honored
concern about keeping the Judiciarys power within its proper constitutional sphere . . . must put
aside the natural urge to proceed directly to the merits of [an] important dispute and to settle it
for the sake of convenience and necessity. Hollingsworth v. Perry, 133 S.Ct. 2652, 2661
(2013), quoting Raines v. Byrd, 521 U.S. 811, 820 (1997). Moreover, in quintessentially local
issue[s] which are imbued with sufficient local character . . . state courts ought to be accorded

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comity from the federal courts with regard to its regulation. Johnson v. Collins, 199 F.3d 710,
731 (4th Cir. 1999) (Luttig, J. concurring in judgment).
We have discussed above that scholars, as well as the Fourth Circuit in Wilkins v. Rogers,
supra, have concluded that the domestic relations exception deprives a federal court of federal
question jurisdiction.

In this instance, this Court should dismiss this action, based upon

overriding principles of federalism whether that analysis is based upon federal question
jurisdiction, justiciability or abstention. Because this case seeks to decide the core question of
two peoples marital status, it belongs in state court rather than in federal court, regardless of the
legal theory upon which it is based. As only recently stated in United States v. Windsor, 133
S.Ct. supra, at 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 lack of federal question jurisdiction, and federalism, this case should be
dismissed as improperly brought here, rather than in the courts of South Carolina.
As Judge Posner recognized in Jones v. Brennan, 465 F.3d 304 (7th 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

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law or equity dispositions. Judge Posner points out that the statute relating to federal questions
uses the same common law or equity 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 Judge Posner relied upon a federal question interpretation, similarly to that of the
Fourth Circuits decision in Wilkins jurisdictional analysis, other courts have looked to the
foundations of federalism particularly justiciability and abstention -- in concluding that
domestic relations issues are more properly a matter for state courts to decide, even where
federal questions are deemed to be involved. Harbach, supra at 165-175.
Indeed, Elk Grove United School Dist. v. Newdow, supra 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).

In the Supreme Courts view, it is improper for the federal courts to

entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in
dispute when prosecution of the lawsuit may have an adverse effect on the person who is the
source of the plaintiffs claimed standing. 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.].

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Justice Stevens, writing for the Court in Newdow, recognized there are certain occasions
when a federal court absolutely must intercede with respect to domestic relations issues, such as
those involving racial classifications. However, Newdow noted that such circumstances are
indeed extraordinary and rare. According to Justice 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.
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 (4th 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 (8th Cir. 2005), the
Court dismissed a 1983 suit, citing Newdow. In A.N. and D.N. v. Williams, 2005 WL 3003730

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(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,
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 these federalism concerns in the area of domestic
relations, 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

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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 determination of what constituted marriage.
Mir, Windsor and Its Discontents . . ., 64 Duke Law Journal, 53, 58 (2014). According to
Justice 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 (10th Cir. 2014). As Chief Justice Roberts observed in his Windsor dissent,

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[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 Justice 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 Justice Roberts reading that Windsor is based primarily upon
federalism. As has been stated, . . . Justice 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
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,
Reflection on Equality in Family Law, 1385 Mich. St. L. Rev. 1422 (2013). As Judge Duffy put
it in Norris v. Singletary, 2010 WL 331766 (D.S.C. 2010) . . . federal appellate courts have
held that federal district courts may abstain for reasons of comity and common sense from cases
better handled by state courts having authority over matrimonial and family matters.

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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 protection clause
of the United States Constitution.]. In this instance, the language contained in Art. XVII, 15
has never been interpreted by the courts in South Carolina. South Carolinas courts have not yet
defined the term contracts or other legal instruments as employed therein. Thus as in Newdow,
there will undoubtedly be family rights that are in dispute with respect to the scope of Art.
XVII, 15. As in Newdow, hard questions are sure to affect the outcome, particularly where a
South Carolina court would have to address the question of the breadth of the phrase contracts
or other legal instruments. Such a contract provision was not contained in the constitutional
amendment at issue in Bostic and its phraseology could be deemed to have constitutional

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significance in this case. Compare Romer and Windsor, supra [finding animus against groups
based upon sexual orientation]. The protection of rights of contract in the South Carolina
Constitution suggests no such animus here. Notwithstanding Plaintiffs federal constitutional
claims, such claims are thus intertwined with family law rights in South Carolina, not yet
defined by state courts. 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. However, at the same time, state courts must be allowed to define the scope
of domestic relations rights in this area.
Windsors reliance upon federalism principles is incorrectly distinguished by the Fourth
Circuit in Bostic. 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, supra.
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 Justice
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.

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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).
As noted above, the federalism argument we are asserting here based upon the
domestic relations exception was never considered in Bostic. Whether this exception is
viewed as an issue of federal question jurisdiction, or an issue of justiciability or abstention, it is
nevertheless applicable. This Court should stay its hand to allow the state courts to resolve the
status of marriage, uniquely a province of the state courts, rather than the federal courts. As
already noted, the Fourth Circuit has applied this domestic relations exception to a
constitutional claim, based upon alleged sex discrimination. In Wilkins v. Rogers, supra, the
Court refrained from ruling upon a question of sex discrimination. Federal question jurisdiction,
as well as diversity was invoked. However, the Fourth Circuit found that federal courts should
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 (4th Circ. 1997).
In short, this Court should refrain from injecting this Court into 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 not only lack federal question jurisdiction to

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adjudicate these issues, but 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 upon this Court and fully buttresses the foregoing authorities applying principles of
jurisdiction, as well as federalism by applying the domestic relations exception.
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.

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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 Jurisdictional Statement raised three separate questions to the
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,
Jurisdictional 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, supra, 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

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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
statute was not a substantial one. The three judge court was not free to
disregard this pronouncement.
As Mr. Justice 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. (emphasis added).
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).

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The Fourth Circuit has also recognized the binding effect of summary dismissals by the
Supreme Court. In Hogge v. Johnson, supra, 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.
Adm., 582 F.2d at 853-854 [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, 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 Justice Ginsberg in the
oral argument in Hollingsworth v. Perry, supra, a case which was resolved based not upon the

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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.
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 (8th 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)

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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
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.].
Importantly, the United States District Court for the District of Puerto Rico has
determined that Baker is binding in this same context. In Conde-Vidal v. Garcia-Padilla, supra,
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. Id. at 6. According to the Court:
[t]he First Circuit expressly acknowledged a mere two years ago that
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 (1st 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.

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Indeed, in oral argument in Hollingsworth v. Perry, supra, Justice 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 Justice 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
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.
Accordingly, 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, as well as the Fourth Circuits own cases. As discussed above, Bostic ignored
the well established prior panel rule, and ignored Hogge, requiring the courts of the Fourth
Circuit to adhere to summary rulings by the Supreme Court. 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
Jurisdictional 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

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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. Indeed, as Wilkins emphasizes, domestic issues
intertwined with federal constitutional claims, such as gender discrimination, do not present a
federal question. Wilkins, 581 F.2d at 403-404.
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,
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)). And, as the Fourth Circuit

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recognized in Wilkins, domestic relations issues do not present a federal question,


notwithstanding allegations of sexual discrimination.
C
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 Judicial 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
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).

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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.

The Ex 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

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the Ex Parte Young exception nor does any super. See Charleston Cnty. Sch. Dist. v. Harrell, 393
S.C. 552, 561, 713 S.E.2d 604, 609 (2011);

2
1F

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.
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 (Jan. 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.

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.

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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.
D
Plaintiffs Lack Standing To Sue the Defendants
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
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. Jan. 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

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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 Judge 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]
Bishop II dismissed the claims against the Oklahoma Governor and Attorney General due to
lack of standing. Just 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. Bishop II.

3
2F

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 Judges who issue licenses and this action should be dismissed as to
them.

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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). To the extent that Plaintiffs attempt to make claims for other
same-sex couples and children of such relationships, they fail to meet these requirements for
third-party standing, and they have not sought to bring a class action.
E
This Court Should Also Abstain Under Younger v. Harris
Younger v. Harris, 401 U.S. 37 (1971) and its progeny also support abstention because
State proceedings are ongoing. Although the Supreme Court has issued its above discussed
Order in State v. Condon, the proceeding is pending to the extent that Judge Condon and all other
probate judges are directed not to issue marriage licenses pending a Bradacs decision and all
state courts are directed not to issue marriage licenses unless otherwise ordered by the
Supreme Court. Therefore, the Supreme Court allows for the possibility that it might issue other
orders, and the direction to Probate Judges is tied to the Bradacs case, not the instant case.
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 10-11 (1987) makes clear, as follows, that
Younger abstention may and should be applied to support abstention as to ongoing civil
proceedings:
The courts below should have abstained under the principles of federalism
enunciated in Younger v. Harris . . . . Both the District Court and the Court of
Appeals failed to recognize the significant interests harmed by their
unprecedented intrusion into the Texas judicial system. Similarly, neither of those

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courts applied the appropriate standard in determining whether adequate relief


was available in the Texas courts.
The first ground for the Younger decision was the basic doctrine of equity
jurisprudence that courts of equity should not act, and particularly should not act
to restrain a criminal prosecution, when the moving party has an adequate remedy
at law. Id., at 43, 91 S.Ct. at 750. The Court also offered a second explanation
for its decision:
This underlying reason ... is reinforced by an even more vital
consideration, the notion of comity, that is, a proper respect for
state functions, a recognition of the fact that the entire country is
made up of a Union of separate state governments, and a
continuance of the belief that the National Government will fare
best if the States and their institutions are left free to perform their
separate functions in their separate ways.... The concept does 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. The Framers rejected both these
courses. 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 the States.
Id., at 44, 91 S.Ct. at 750.
This concern mandates application of Younger abstention not only when the
pending state proceedings are criminal, but also when certain civil proceedings
are pending, if the State's interests in the proceeding are so important that exercise
of the federal judicial power would disregard the comity between the States and
the National Government. E.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 603605,
(1975).
As in Pennzoil, supra, the instant case represents an unprecedented intrusion into [our states]
judicial system. Therefore, this Court should abstain from proceeding with this case.
F
As a Matter of Comity, This Court Should Decline To Consider This Case
Because A Prior Federal Case Is Pending
The first-to-file rule is a well-established doctrine of federal comity. The rule was
first recognized by the United States Supreme Court in Smith v. McIver, 22 U.S.
(9 Wheat.) 532, 6 L.Ed. 152 (1824). There, the Supreme Court stated that [i]n all

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cases of concurrent jurisdiction, the court which first has possession of the subject
must decide it. Id. at 534; see also American Modern Home Ins. v. Insured
Accounts Co., Inc., 704 F.Supp. 128, 129 (S.D.Ohio 1988) (quoting same). The
rule since has been clarified and applied in cases involving concurrent federal
jurisdiction. See E.E.O.C. v. University of Pennsylvania, 850 F.2d 969, 972 (3rd
Cir.), cert. granted in part, 488 U.S. 992 (1988).The first-to-file rule has evolved
into a mechanism used to promote judicial efficiency. See In re American Medical
Systems, Inc., 75 F.3d 1069, 1088 (6th Cir.1996) ( Although there is no precise
rule that, as between federal district courts, one court should defer to the other,
the general principle as to avoid duplicative litigation. ) (citations omitted);
BarberGreene Co. v. BlawKnox Co., 239 F.2d 774, 778 (6th Cir.1957)
(describing that the first court to receive filing should proceed with case to avoid
confusion and uncertainty); ParkerHannifin Corp. v. Samuel Moore & Co., 436
F.Supp. 498, 501 (N.D.Ohio 1977) (reiterating that primary jurisdiction attaches
in the forum where the action is first instituted) (citations omitted).12 The rule
provides that when identical suits are pending in two courts, the court in which
the first suit was filed should generally proceed to judgment. In re Burley, 738
F.2d 981, 988 (9th Cir.1984). Generally, courts should invoke the rule when two
suits involving substantially the same parties and purpose have been filed in a
concurrent jurisdiction. BarberGreene Co., 239 F.2d at 778 (citation omitted).
However, the same party and same issue is not an absolute requirement. [A]
precise identity of parties is simply not required. EBW, Inc. v. Environ Products,
Inc., No. 1:96CV144, 1996 WL 550020, at *3 (W.D.Mich. July 8, 1996).3
Although courts should not apply the first-to-file rule too rigidly or mechanically,
the rule's importance should not be disregarded lightly. Church of Scientology
v. United States Dep't of the Army, 611 F.2d 738, 750 (9th Cir.1979). Notably,
[t]he most basic aspect of the first to file rule is that it is discretionary. Alltrade,
Inc. v. Uniweld Products, Inc., 946 F.2d 622, 628 (9th Cir.1991). The decision
and the discretion belong to the district court. Id
Plating Res., Inc. v. UTI Corp., 47 F. Supp. 2d 899, 903 (N.D. Ohio 1999). Ordinarily, when
multiple suits are filed in different Federal courts upon the same factual issues, the first or prior
action is permitted to proceed to the exclusion of another subsequently filed. See Carbide &
Carbon Chemicals Corp. v. United States Industrial Chemicals, Inc., 140 F.2d 47, 49 (4th Cir.
1944). Allied-Gen. Nuclear Servs. v. Commonwealth Edison Co., 675 F.2d 610, 611, n. 1 (4th
Cir. 1982). See also, George Mason Univ. Found., Inc. v. Morris, No. 3:11-CV-848, 2013 WL
6449109, at *4 (E.D. Va. Dec. 9, 2013). As between federal district courts, however, though

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no precise rule has evolved, the general principle is to avoid duplicative litigation. Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).
Duplicative litigation should be avoided here and comity served by this Courts deferring
a ruling in the instant case until the Bradacs case is decided. Bradacs will be ready for a ruling
on the dispositive motions in that case before the instant case is ready for such a decision. All
filings should be completed tomorrow regarding the pending Bradacs motions. Under the
October 14, 2014 scheduling order, the Court may decide those motions without a hearing.
Bradacs, 3:13-cv-02351, Document No. 71. The instant case is not as far along and filings will
be completed this week only as to the preliminary injunction (answer or other responsive motion
due November 7). The same substantive constitutional issues are present in both cases and the
fact that Bradacs includes a claim for recognition of an out-of-state marriage license is not a
distinction that is likely to produce a different substantive ruling or one not applicable to the
instant parties. That the plaintiffs are not the same does not prevent deference, and this Court
should proceed to stay this proceed or defer a ruling pending the Bradacs outcome. As noted
above, the State Supreme Court has stated that probate judges are [t]hereby directed not to issue
marriage licenses to same-sex couples pending a decision by the Federal District Court in
Bradacs.
II
PRELIMINARY INJUNCTION STANDARD
A preliminary injunction is an extraordinary and drastic remedy and is
never awarded as of right. Munaf v. Geren, 553 U.S. 674, 690 (2008). The
purpose of a preliminary injunction is merely to preserve the relative positions of
the parties until a trial on the merits can be held. Univ. of Tex. v. Camenisch, 451
U.S. 390, 395 (1981). As the Fourth Circuit explained in In re Microsoft Corp.
Antitrust Litigation, 333 F.3d 517, 525 (4th Cir.2003), [t]he traditional office of
a preliminary injunction is to protect the status quo and to prevent irreparable

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harm during the pendency of a lawsuit ultimately to preserve the court's ability to
render a meaningful judgment on the merits.
A moving party must establish the presence of the following: (1) a clear
showing that it will likely succeed on the merits; (2) a clear showing that it is
likely to be irreparably harmed absent preliminary relief; (3) the balance of
equities tips in favor of the moving party; and (4) a preliminary injunction is in
the public interest. Real Truth About Obama, Inc. v. Fed. Election Comm., 575
F.3d 342, 34647 (4th Cir.2009); W. Va. Assoc. of Club Owners & Fraternal
Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir.2009). These standards
follow the newly articulated requirements for preliminary injunction set forth by
the Supreme Court in Winter v. Natural Resources Defense Council, Inc., 555
U.S. 7, 2223 (2008). Unlike the Fourth Circuit's previous balance of hardship
test set forth in Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d
189, 196 (4th Cir.1977), the moving party seeking a preliminary injunction must
establish the presence of each of the four requirements, satisfying the standards of
each as articulated. Real Truth About Obama, Inc., 575 F.3d at 347.
United States v. S. Carolina, 840 F. Supp. 2d 898, 914 (D.S.C. 2011) modified in part, 906 F.
Supp. 2d 463 (D.S.C. 2012) aff'd, 720 F.3d 518 (4th Cir. 2013)
A preliminary injunction is a drastic remedy, Bloodgood v. Garraghty, 783 F.2d 470,
475 (4th Cir.1986), which serves to maintain the status quo ante litem. Feller v. Brock, 802 F.2d
722, 727 (4th Cir.1986). The decision to grant or deny a preliminary injunction rests within the
sound discretion of the district court, and that decision will not be disturbed on appeal absent a
showing that the district court committed an abuse of its discretion. Fayetteville, Cumberland
Cnty. Black Democratic Caucus v. Cumberland Cnty., N.C., 884 F.2d 1388 (4th Cir. 1989).
Although Preliminary Injunctions have been issued in same-sex marriage cases, Plaintiffs
fail to show that they are entitled to an injunction for reasons discussed below. See, eg. Bostic v.
Rainey, 970 F. Supp. 2d 456, 474 (E.D. Va.) 4
3F

aff'd sub nom. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) cert. denied sub nom.
Rainey v. Bostic, No. 14-153, 2014 WL 3924685 (U.S. Oct. 6, 2014) and cert. denied, No. 14225, 2014 WL 4230092 (U.S. Oct. 6, 2014) and cert. denied sub nom. McQuigg v. Bostic, No.
14-251, 2014 WL 4354536 (U.S. Oct. 6, 2014).

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III
PLAINTIFFS FAIL TO MAKE A CLEAR SHOWING THAT THEY WILL LIKELY
SUCCEED ON THE MERITS FOR A PRELIMINARY INJUNCTION
The grounds set forth in Argument I, supra, are dispositive of this case. They also
demonstrate that Plaintiffs cannot succeed on the merits of this case. In addition, the following
grounds also show that Plaintiffs should not succeed on the merits.
A
As to Issues That Bostic addressed, Bostic was Wrongly Decided and the Defendants,
respectfully, argue against precedent to the Extent Necessary
[A] non-frivolous argument for a change in law is certainly an appropriate argument to
this Court. The Court, however, must follow the established precedent of this Circuit. United
States v. Williams, No. 4:12-CR-00969-RBH, 2014 WL 971749, at *5 (D.S.C. Mar. 12, 2014);
see also, Rule 11(b)(2), FRCP (Non-frivolous argument for modifying, or reversing existing
law or for establishing new law). As discussed above, under Fourth Circuit precedent, Baker v.
Nelson controls this Courts consideration of the merits of this case rather than the Bostic Panel
decision that overlooked that authority of their own Court. To the extent that, arguendo, Baker
does not apply, the Defendants Governor and Attorney General argue against the Bostic
precedent and seek to preserve those arguments for further review.
B
History Of Marriage Law /
Comparison of Current South Carolina and Virginia Law
1
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

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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). John 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 John 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 (1st 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)).
2
In South Carolina
The definition of marriage as an opposite sex legal relationship has been equally settled
in South Carolina since Colonial times. Under a 1712 statute, only opposite sex marriages were

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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 5 The 1871
4F

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,
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.

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).

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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.
3
Comparison to Virginia Law
This Court asked that the Defendants note any differences with Virginia law regarding
same-sex marriage because of the Bostic decision. Attachment A to this Memorandum sets out
the laws of the two states.
Virginias laws preserve existing law by banning same-sex marriage as does South
Carolina law, but our States Constitution contains some significant differences in its express
protection for specified rights, benefits, contracts and legal instruments. S.C. Const. art. XVII,
15 (Nothing in this section shall impair any right or benefit extended by the State or its

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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.). Virginias
Constitution contains no protection for such matters and Va. Code 20-45.2 states that any
contract rights created by a same-sex marriage are void and unenforceable. This memorandum
does not attempt to construe the scope of South Carolina laws protections or Virginias
limitation. Instead, the point is that South Carolina law simply seeks to preserve existing marital
law and that it does not demonstrate animus or an attempt to remove any rights or benefits that
any individuals previously had under our States law.
C
Rational Basis Review Should Apply Here to Plaintiffs
Due Process and Equal Protection Claims
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 Judge Niemeyer applied rational basis review.
Because the Defendants believe that Judge Niemeyers opinion was the correct one, they offer
his analysis to preserve in argument against the Bostic Panel decision and should further review
be sought later.
1
No Fundamental Right to Same-Sex Marriage Exists
Bostic applied strict scrutiny because it found marriage to be a fundamental right that
encompasses same-sex marriage.

Judge Niemeyer reached a different, legally correct

conclusion.
As Judge Niemeyer stated:

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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.

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. .. .

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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
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

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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
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 samesex 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 samesex 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

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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
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 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. Therefore, whereas Loving lifted a restriction that was never an element of
marriage, the 2-1 Bostic panel misapplied the decision to alter the element historically inherent in
marriage a union of a man and a woman. .
Judge 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.

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2
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. Judge Niemeyer did address this issue and
found no suspect class implicated in that case and that rational basis review applied.
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 rationalbasis 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

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Cir.2002). . . . .The vast majority of other courts of appeals have reached the same
conclusion.
Bostic, 760 F.3d at 396-97 (Niemeyer dissenting).
3
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)

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(Pregnancy Discrimination Amendment)). And immigration law may make it easier for out-ofwedlock children to claim citizenship from citizen mothers than from citizen fathers, for
reasons beyond gender stereotypes. Nguyen v. INS, 533 U.S. 53, 62-65 (2001). As Justice
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.

4
SOUTH CAROLINAS LONGSTANDING DEFINITION OF MARRIAGE
SATISFIES RATIONAL BASIS REVIEW UNDER THE EQUAL PROTECTION AND
DUE PROCESS CLAUSES
Under Judge 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

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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
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

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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
scrutiny test if applied because they are compelling state interests and are narrowly drawn. 760
F.3d at 377.
Judge 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

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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 Judge 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
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.


IV
PLAINTIFFS FAIL TO MEET THE OTHER REQUIREMENTS FOR A
PRELIMINARY INJUNCTION
Plaintiffs are not entitled to a preliminary injunction for reasons discussed in the previous
section, but they also fail to meet tests for irreparable harm, balance of equities and the public
interest. U.S. v. Charleston, supra. While . . . violations of constitutional rights constitute
irreparable harm for injunctive relief purposes (United States v. Charleston Cnty., 318 F. Supp.
2d 302, 326 (D.S.C. 2002), in the context of the current litigation in South Carolina, Plaintiffs are
not harmed because the Bradacs litigation is likely to be decided shortly, and if favorable in

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outcome to their position, would affect Plaintiffs and the Supreme Courts direction to Probate
Judges. The balance of equities do not tip in their favor and the public interest is not served by
Plaintiffs trying to jump over the Bradacs case to obtain a decision possibly only days before
that case is decided. Had they wanted a voice in that case, they could have moved to intervene,
but they failed to do so. They should not be granted a preliminary injunction when should be
protected by any outcome in Bradacs cases favorable to their position.
V
ALTERNATIVE MOTION / REQUEST FOR STAY
Should, arguendo, this Court grant a preliminary injunction, the Defendants respectfully
request that this Court grant a stay pending appeal to the Court of Appeals for the Fourth Circuit
pursuant to Rule 62, FRCP. Briefly stated, a party seeking a stay must show (1) that he will
likely prevail on the merits of the appeal, (2) that he will suffer irreparable injury if the stay is
denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public
interest will be served by granting the stay. Long v. Robinson, 432 F.2d 977, 979 (4th Cir.
1970). Brenner v. Scott, 999 F. Supp. 2d 1278, 1292 (N.D. Fla. 2014) applied similar standards
to grant a stay in that same-sex marriage case:
at the stay-pending-appeal stage, an additional public interest comes into play.
There is a substantial public interest in implementing this decision just oncein
not having, as some states have had, a decision that is on-again, off-again. This is
so for marriages already entered elsewhere, and it is more clearly so for new
marriages. There is a substantial public interest in stable marriage laws. Indeed,
there is a substantial public interest in allowing those who would enter same-sex
marriages the same opportunity for due deliberation that opposite-sex couples
routinely are afforded. Encouraging a rush to the marriage officiant, in an effort to
get in before an appellate court enters a stay, serves the interests of nobody. A
stay thus should be entered for long enough to provide reasonable assurance that
the opportunity for same-sex marriages in Florida, once opened, will not again
close. The stay will remain in effect until stays have been lifted in Bostic, Bishop,
and Kitchen, and for an additional 90 days to allow the defendants to seek a
longer stay from this court or a stay from the Eleventh Circuit or Supreme Court.

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See also, same-sex marriage cases Henry v. Himes, No. 1:14-CV-129, 2014 WL 1512541, at *1
(S.D. Ohio Apr. 16, 2014) 6; Bourke v. Beshear, 996 F. Supp. 2d 542, 558 (W.D. Ky. 2014 ) 7
5F

6F

This analysis directly applies here, particularly when the Bradacs case is pending and the
State Supreme Courts order directs probate judges not to issue marriage licenses until Bradacs
is decided. Although the Bostic case is decided and the United States Supreme Court denied
certiorari, the Panel did not consider a number of dispositive defenses raised in the instant case.
Moreover, it is a Panel decision and the Appellate Court rules permit appellants to request initial
en banc review that, if granted, could lead to a different conclusion at the Court of Appeals.
Rule 35, FRAP. The Court of Appeals should be given the opportunity to review this matter en
banc, consideration that was apparently not sought in Bostic.
The Fourth Circuit is likely to want to conclude the appellate process quickly regardless
of outcome. In the meanwhile, the window should not be opened on same-sex marriages at the
substantial risk of closure again should the Defendants appeal be successful. Therefore, the
State respectfully requests that any order of this Court granting a preliminary injunction be
enjoined until appellate review is completed at the Court of Appeals.

Henry stated: if Defendant Himes's appeal is ultimately successful, the absence of a


stay as to this Court's ruling of facial unconstitutionality is likely to lead to confusion,
potential inequity, and high costs. These considerations lead the Court to conclude that
the public interest would best be served by the granting of a stay. Premature celebration3
and confusion do not serve anyone's best interests. The federal appeals courts need to
rule, as does the United States Supreme Court.
7

As stated in Bourke: One judge may decide a case, but ultimately others have a final
say. It is the entire process, however, which gives our judicial system and our judges such
high credibility and acceptance. This is the way of our Constitution. It is that belief which
ultimately informs the Court's decision to grant a stay. It is best that these momentous
changes occur upon full review, rather than risk premature implementation or confusing
changes. That does not serve anyone well.

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CONCLUSION
This case is not properly presented to this Court. It is barred by Rooker Feldman and
Federalism, and as to these Defendants, by the Eleventh Amendment 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 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. Bostic is not controlling precedent because, according to prior decisions of
the Fourth Circuit, summary dismissals of the Supreme Court such as the dismissal of the samesex marriage challenge in Baker v. Nelson are controlling. The other issues need not be reached,
but to preserve the issues, we argue against precedent, and assert that Judge Niemeyers dissent
in Bostic presents the sounder constitutional analysis. For the foregoing reasons, the Defendants
respectfully request that the Plaintiffs Motion for a Preliminary Injunction be denied.
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, Jr.
J. EMORY SMITH, Jr.
Deputy Solicitor General
Federal ID No. 3908
Email: ESMITH@SCAG.GOV
[Signature block continues next page]

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IAN P. WESCHLER
Assistant Attorney General
Federal ID No. 11744
BRENDAN J. MCDONALD
Assistant Attorney General
Federal ID No. 10659
Office of the Attorney General
Post Office Box 11549
Columbia, South Carolina 29211
Phone: (803) 734-3680
Fax: (803) 734-3677
Counsel for Defendants
Governor and Attorney General

November 3, 2014

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ATTACHMENT A

Condon v. Haley
Memorandum of Defendants in Opposition to Motion for Preliminary Injunction

Comparison of pertinent South Carolina and


Virginia statutes and Constitutions

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South Carolina Statutes


20-1-10: Persons who may contract matrimony.
(A) All persons, except mentally incompetent persons and persons whose marriage is prohibited
by this section, may lawfully contract matrimony.
(B) No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, sister,
grandfathers wife, sons wife, grandsons wife, wifes mother, wifes grandmother, wifes
daughter, wifes granddaughter, brothers daughter, sisters daughter, fathers sister, mothers
sister, or another man.
(C) No woman shall marry her father, grandfather, son, grandson, stepfather, brother,
grandmothers husband, daughters husband, granddaughters husband, husbands father,
husbands grandfather, husbands son, husbands grandson, brothers son, sisters son, fathers
brother, mothers brother, or another woman.

20-1-15: A marriage between persons of the same sex is void ab initio and against the public
policy of this State.

South Carolina Constitution


S.C. Const. Art. XVII, 15: 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.

Virginia Statute
Va. Code 20-45.2: A marriage between persons of the same sex is prohibited. Any marriage
entered into by persons of the same sex in another state or jurisdiction shall be void in all
respects in Virginia and any contractual rights created by such marriage shall be void and
unenforceable.

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Virginia Constitution
Marshall/Newman Amendment to the Virginia Constitution, Va. Const. art. 1, 15-A: That only
a union between one man and one woman may be a marriage valid in or recognized by this
Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions
shall not create or recognize a legal status for relationships of unmarried individuals that intends
to approximate the design, qualities, significance, or effects of marriage. Nor shall this
Commonwealth or its political subdivisions create or recognize another union, partnership, or
other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of
marriage.

2:14-cv-04010-RMG

Date Filed 11/03/14

Entry Number 29-2

Page 1 of 2

ATTACHMENT B

Condon v. Haley
Memorandum of Governor and Attorney General in Opposition to Preliminary Injunction

Statutes at Large, 1712, p. 508

2:14-cv-04010-RMG

Date Filed 11/03/14

508

Entry Number 29-2

Page 2 of 2

STATUTES AT LARGE

A. 1). 1712

English Statutes Made of Force.

1 J. 1. e. 11.

An Act to restrain all Persons from Marriage until their former Wives
and former Husbands be dead.

FORASMUCH as divers evil-disposed persons being married,


Felonyto marry out of one
second

as-

knowtJ(

an(j

county into
there

another, or into

become

to

be

places

married,

where

having

they

another

are

husband

run
not
or

band or wife,

wife living, to the great dishonor of God, and utter undoing of divers
honest mens children, and others; [2j Be it therefore enacted, That if
any person or persons within his Majesty's dominions of England and

tlte former
being living.

3 Ins'r. 93.
<'ro. Eliz. 91.

Er0- Can 461. "Wales, being married, or which hereafter shall marry, do at any time

Kelyng 79 80 'A^ter the end of the session of this present parliament, marry any pertHalesP.C.6'J2. son or persons, the former husband or wife being alive ; that then every

such offence shall be felony, and the person and persons so offending
shali suffer death as in cases of felony; [3] and the party and parties
so offending shall receive such and the like proceeding, trial and ex
ecution in such county where such person or persons shall be appre

hended, as if the offence had been committed in such county

where

such person or persons shall he taken or apprehended.

i,

T1 e husband or

^>ro'lAC'e^ always, That this Act, nor any therein contained, shall

wife, being ab-extencl to ariy person or persons whose husband or wife shall he con

sent 7 years
tinually remaining beyond the seas by the space of 7 years together,
from the other. or w]]0gg husband or wife shall absent him or herself the one from the

other by the space of 7 years together, in any parts within his Majes

ty's dominions,

the

one of them not knowing the other to be living

within that time.

III. Provided also, That this Act, nor any thing herein contained, shaii

To what per- extend to any person or persons that are or shall he at the time of such
s"jjt'nStStalute marriage divorced by any sentence had or hereafter to be had in the ecrie-

tend.

X"

siastical court ; [2] or to any person or persons where the former marriage

hath been or hereafter shall he by sentence in the ecclesiastical court


declared to be void and of no effect; nor to any person or persons for or
by reason of any former marriage had or made, or hereafter to be had or
made, within age of consent,

ofbkmd"[uss"of

1
it

this

Provided also, That no attainder for this offence made felony by


Act, shall make or work any corruption of blood,
loss of dower,

dower or
inheritance.

disinherison of heir or heirs.

1 J. I.e. 12.

An Acte against Conjuration ,

3 Eliz. c. 16,
repealed.

Witchcraft, and dealinge with Evill (nul


Spirits.

the same Feaste, utterlie repealed.

.
Invoking or

11. And for the better restrayninge the said offenses and more se

punishinere the same,

spirits,
' '
evil

&

an

fu

of
tm
or

)i!
let

of i
the
Off.!

he it further

enacted
,

by
i

of r
or (|

BE it enacted, by the King our Sovraigne Lorde, the Lordes Spirituall


and Temporall and the Comons in this present Parliament assembled, ami
by the autboritie of the same. That the statute made in the fifth ycire
of the raigne of our late Sovraigne Lady, of most famnn* and happie
memorie, Queene Elizabeth, intituled an Acte agai:
conjuration?,
inchantments and witchcrafts, be from the Feaste of St. IN
ell the Archangell nexte cominge, for and concerninge all offences to
omitted atler

consultinu wnlj f

P'
sh
hi.

is a
the
of s
Wicked

fil-

{<
lo

the

autboritie

-r-i

i hat if any person or persons, alter the saide reaste oi

Archangell next cominge, shall use, practise or exercise

afores

in--

St. Michae!

invocation or

aitn.

Tliu
of it
case

FTh
exic-iv

olsewi

An A
the.
wii

2:14-cv-04010-RMG

Date Filed 11/03/14

Entry Number 29-3

ATTACHMENT C

Condon v. Haley
Memorandum of Governor and Attorney General
in Opposition to Preliminary Injunction

1871 R.S. 440

Page 1 of 2

2:14-cv-04010-RMG

Date Filed 11/03/14

Entry Number 29-3

Page 2 of 2

OF THE DOMESTIC RELATIONS.

Murriage.

Chaptkr XCIX, Of

0* Oj Certain Rights and Liabilities of Husband and

Wife.
CI. Of Guardians and Words.
CI I.

CHI.

Oj the Change of Navies.

Oj Masters, Apprentices and Laborers.

CHAPTER XCIX.
Of

Marriage.

Sec.
J, Who may contract matrimony.
2. Marriage contracted and consumma
ted, indissoluble.

Sec.
3. Void marriages; proviso.

Secticust 1. That all persons, except idiots and lunatics, not prohibited
by this Section, may lawfully contract matrimony. Xo man shall marry
his mother, grand-mother, daughter, grand-daughter, step-mother, sister,
grand-father's wife, son's wife, grand-son's wife, wife's mother, wife's grand

mother, wife's daughter, wife's grand-daughter, brother's daughter, sister's

daughter, father's sister, or mother's sister.

No woman shall marry her

father, grand-father, son, grand-son, step-father, brother, grand-mother's


husband, daughter's husband, grand-daughter's husband, husband's father,

husband's grand-father, husband's sou, husband's grand-son, brother's son,


sister's son, father's brother, or mother's brother.

Sec. 2. All marriages contracted between lawful persons, and solem

nized in the face of the church, and consummate with bodily knowledge,
or fruit of children or child shall be deemed, judged and taken to J

lawful, good, just and indissoluble, notwithstanding any pre-coutrac

pre-contracts of matrimony not consummate with bodily


which either of the parties so married or both shall have ,1U'1

other person or persons before the time of contracting ^nch ma