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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

MOTION TO DISMISS OF
DEFENDANTS HALEY AND
WILSON

Pursuant to Rules 12(b)(1) and (6), the Defendants Haley and Wilson move to dismiss
the Complaint in this case because the Court lacks subject matter jurisdiction and the Plaintiffs
have failed to state a claim upon which relief can be granted for the following reasons:
1.

This case is barred by the Rooker-Feldman doctrine See, State ex rel Wilson v.
Condon, No. 2014-002121, 2014 WL 5038396, at *1-2 (S.C. Oct. 9, 2014)

2. This suit is barred by Federalism and the controlling precedent of Baker v. Nelson,
409 U.S. 810 (1972).
3. This suit is barred against these defendants by the Eleventh Amendment to the United
States Constitution.
4. The Plaintiffs lack standing to sue these Defendants.
5. This Court should abstain under Younger v. Harris, 401 U.S. 37 (1971) due to the
pendency of State v Wilson, supra.

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6. As a matter of comity, this Court should decline to consider this case because a prior
Federal case is pending, Katherine Bradacs and Tracie Goodwin v Haley, et al, Civil
Action No. 3:13-cv-02351
7. To the extent that, arguendo, Baker, supra, does not apply, the Defendants Governor
and Attorney General argue against the Bostic v. Schaefer, 760 F.3d 352 (4th Cir.
2014).and seek to preserve those arguments for further review.
8. S.C. Code Ann 20-1-10 and 20-1-15; S.C. Const art. XVII, 15 are constitutional
under the Due Process and Equal Protection Clauses.
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
IAN P. WESCHLER
Assistant Attorney General
Federal ID No. 11744
[Signature block continues next page]

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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 7, 2014

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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 IN SUPPORT OF
MOTION TO DISMISS OF
DEFENDANTS HALEY AND
WILSON

In support of their Motion to Dismiss, the Governor and Attorney General (State)
incorporate by reference their Memorandum in Opposition to Plaintiffs Motion for Preliminary
Injunction herein. Document No. 29, November 3, 2014. They also incorporate by reference the
Opinion yesterday of the Court of Appeals for the Sixth Circuit in DeBoer v. Snyder, No. 141341, 2014 WL 5748990 (6th Cir. Nov. 6, 2014).
DeBoer upheld bans on same-sex marriage in the four states of the Sixth Circuit under
the Fourteenth Amendment and as to the other challenges made in that case. Its thoughtful
analysis of the constitutional issues in that case strongly supports the States position that South
Carolinas bans are constitutional under their Federalism / Baker v. Nelson and rational basis
arguments that are addressed below.

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I
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
A
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
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

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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.

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

concurring).
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

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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.
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].

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Only recently, the Sixth Circuit Court of Appeals found that it is required to follow
Baker. In DeBoer, supra, the Court of Appeals concluded as follows:
It matters not whether we think [Baker] was right in its time, remains right today,
or will be followed in the future. Only the Supreme Court may overrule its own
precedents, and we remain bound even by its summary decisions until such time
as the Court informs [us] that we are not. Hicks v. Miranda, 422 U.S. 332, 345
(1975).
. . . The Court has yet to inform us that we are not, and we have no license to
engage in a guessing game about whether the Court will change its mind or, more
aggressively, to assume authority to overrule Baker ourselves.

Id. at 5.
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.
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

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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
jurisdiction, citing the domestic relations exception.

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

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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
a federal question. Therefore, this Court lacks subject matter jurisdiction and is obligated to
follow Wilkins, as well as Baker.
Regardless, however, of whether the matter is viewed through the prism of federal
question jurisdiction or through the lens of federalism, this case should be dismissed. Only
recently in DeBoer, supra, the Sixth Circuit relied upon federalism to conclude that the
determination of the definition of marriage is a virtually exclusive state prerogative, not a federal
one. According to the Sixth Circuit, the Framers, in order to enhance liberty and not allow
the National Government to divest liberty protections, left to the States in the exercise of their

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historic and in this instance nearly exclude power to define marriage. DeBoer, supra at 19.
(emphasis in original). The Sixth Circuit noted that Windsor stood as a decision reaffirming this
state prerogative. Windsor, in the view of the DeBoer Court, held that New York without
doubt had the power to extend the definition [of marriage] to include gay couples and that
Congress had no power to enact unusual legislation that interfered with the States long held
authority to define marriage. DeBoer concluded that a decision premised on heightened
scrutiny under the Fourteenth Amendment that redefined marriage nationally to include samesex couples . . . would divest the States of their traditional authority over the issue. Id. at 20.
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. See DeBoer, supra. 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 province of the States to define
marriage as applied in both Wilkins, as well as Newdow, Windsor and DeBoer. 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

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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
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 remains the province of the State and thus belongs in state court
rather than in federal court, regardless of the legal theory upon which it is based. As only
recently reaffirmed 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 definition
or 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

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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
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

10

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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.].
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].

11

Thus, in this case, involving alleged

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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
(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

12

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an area that has long been regarded as a virtually exclusive province of the States. Id. at
2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975)). As explained by the Supreme Court,
[t]he definition of marriage is the foundation of the States broader authority
to regulate the subject of domestic relations with respect to the [p]rotection
of offspring, of property interests, and the enforcement of marital
responsibilities. [citing Williams v. North Carolina, 317 U.S. 287, 298
(1942)]. . . . [T]he states, at the time of the adoption of the Constitution,
possessed full power over the subject of marriage and divorce . . . [and] the
Constitution delegated no authority to the Government of the United States
on the subject of marriage and divorce. Haddock v. Haddock, 201 U.S.
562, 575, 26 S.Ct. 525, 50 L.Ed. 867 (1906); see also In re Burrus, 136 U.S.
586, 593-594, 10 S.Ct. 850, 34 L.Ed. 500 (1890) (The whole subject of
domestic relations of husband and wife, parent and child, belongs to the
laws of the States and not to the laws of the United States). . . .
The significance of state responsibilities for the definition and regulation of
marriage dates to the Nations beginning; for when the Constitution was
adopted for common understanding was that the domestic relations of
husband and wife and parent and child were matters reserved to the States.
Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-384, 50 S.Ct. 154, 74
L.Ed. 489 (1930).
Id.
In short, because DOMA -- a federal act -- interfered with New Yorks determination as
to what constituted a valid marriage, it was necessary for the Supreme Court to step in. As one
commentator has noted, DOMA was an unusual federal intrusion into an issue previously
reserved for the states . . . [i]n fact, before DOMAs enactment in 1996, the federal government
had by history, and tradition relied on the states 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

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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,
[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

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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. And, as
the Sixth Circuit recently held in DeBoer, Windsor was a federalism based decision at its heart.
As DeBoer noted, [t]he national statute trespassed upon New Yorks time-respected authority to
define the marital relation, including by enhanc[ing] the recognition, dignity and protection of
gay and lesbian couples. DeBoer, supra at 19.
Accordingly, it is important to note that only last year, in Windsor, 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

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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
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 any
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 definition
of marriage. Windsor reaffirms the States virtually exclusive prerogative to do so.
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

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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.
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 States
traditional authority in this area -- 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
States definition 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,

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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 States definition of marriage.

Federal courts not only lack federal question

jurisdiction to 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

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Clauses, as well as allegedly offending the First, Eighth and Ninth Amendments. The Minnesota
Supreme Court stated that [t]hese constitutional challenges have in common the assertion that
the right to marry without regard to the sex of the parties is a fundamental right of all parties and
that restricting marriage to only couples of the opposite sex is irrational and invidiously
discriminatory. 191 N.W.2d at 186.
The Court reviewed Supreme Court decisions, particularly Skinner v. Oklahoma, 316
U.S. 935 (1942), Griswold v. Connecticut, 381 U.S. 479 (1965), and Loving v. Virginia, supra.
According to the Court,
Loving does indicate that not all restrictions upon the right to marry are
beyond the reach of the Fourteenth Amendment. But in common sense and
in a constitutional sense, there is a clear distinction between a marital
restriction based merely upon race and one based upon the fundamental
difference in sex.
191 N.W.2d at 187.
It is important to note that the Minnesota Supreme Court specifically rejected all of
Plaintiffs constitutional challenges.

The Court found no Due Process violation, relying

principally upon Skinner. With respect to the Equal Protection claim, the Court concluded that
[t]he equal protection clause of the Fourteenth Amendment, like the due process clause, is not
offended by the states classification of persons authorized to marry. There is no irrational or
invidious discrimination. Id. at 187.
Plaintiffs then appealed the Minnesota Supreme Courts decision to the United States
Supreme Court. The Plaintiffs 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

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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
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

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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).
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

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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
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

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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)
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

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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.
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.

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As discussed above, the Sixth Circuit in DeBoer, supra recently held that Baker is
binding upon it, as required by Hicks v. Miranda, supra. According to the Sixth Circuit, there is
absolutely no basis to rely on doctrinal developments to ignore Baker. As the Sixth Circuit
recognized,
Windsor . . . does not mention Baker, and it clarifies that its opinion and
holding do not govern the States authority to deprive marriage.
Hollingsworth was dismissed. And neither Lawrence nor Romer mentions
Baker and neither is inconsistent with its outcome.
Slip. Op. at 14.
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
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

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intertwined with federal constitutional claims, such as gender discrimination, do not present a
federal question. Wilkins, 581 F.2d at 403-404.
Moreover, 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 definition 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)). As the Fourth Circuit recognized
in Wilkins, domestic relations issues do not present a federal question, notwithstanding
allegations of sexual discrimination. And, as the Sixth Circuit stated in DeBoer, the States have
an undoubted power over marriage. DeBoer, supra at 21.

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II
RATIONAL BASIS REVIEW APPLIES TO SOUTH CAROLINA LAW AND
RATIONAL GROUNDS SUPPORT THOSE BANS ON SAME-SEX MARRIAGE

What [the Court has] the authority to decide . . . is a legal question: Does the Fourteenth
Amendment to the United States Constitution prohibit a State from defining marriage as a
relationship between one man and one woman?, 2014 WL 5748990, at *1. DeBoer answered
that question with a strong negative. The same conclusion applies to South Carolina law. 1
0F

From the founding of the Republic to 2003, every State defined marriage as a
relationship between a man and a woman, meaning that the Fourteenth Amendment permits,
though it does not require, States to define marriage in that way.DeBoer, 2014 WL 5748990, at
9. The Court recognized that Loving v. Virginia, 388 U.S. 1 (1967) did not change the historic
definition of marriage unlike the inflated view of the Opinion by two members of the Bostic
panel. As stated by DeBoer: When the Court decided Loving, marriage between a man and a
woman no doubt [was] thought of . . . as essential to the very definition of that term. Id. at 16.
Loving addressed, and rightly corrected, an unconstitutional eligibility [race] requirement for
marriage; it did not create a new definition of marriage. . . . When Loving and its progeny used
the word marriage, they did not redefine the term but accepted its traditional meaning. Id. at 16
and 17.
The Court found that no fundamental right to same-sex marriage and recognized that
[t]he Supreme Court has never held that legislative classifications based on sexual orientation
1

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.

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receive heightened review and indeed has not recognized a new suspect class in more than four
decades. Id. at p. 18.
DeBoer relied on two grounds to find the bans on same-sex marriage to be rational:
A dose of humility makes us hesitant to condemn as unconstitutionally irrational a
view of marriage shared not long ago by every society in the world, shared by
most, if not all, of our ancestors, and shared still today by a significant number of
the States. Hesitant, yes; but still a rational basis, some rational basis, must exist
for the definition. What is it? Two at a minimum suffice to meet this low bar. One
starts from the premise that governments got into the business of defining
marriage, and remain in the business of defining marriage, not to regulate love but
to regulate sex, most especially the intended and unintended effects of malefemale intercourse. Imagine a society without marriage. It does not take long to
envision problems that might result from an absence of rules about how to handle
the natural effects of male-female intercourse: children.
Id. at 9.
By creating a status (marriage) and by subsidizing it (e.g., with tax-filing
privileges and deductions), the States created an incentive for two people who
procreate together to stay together for purposes of rearing offspring. That does not
convict the States of irrationality, only of awareness of the biological reality that
couples of the same sex do not have children in the same way as couples of
opposite sexes and that couples of the same sex do not run the risk of unintended
offspring. That explanation, still relevant today, suffices to allow the States to
retain authority over an issue they have regulated from the beginning.
To take another rational explanation for the decision of many States not to expand
the definition of marriage, a State might wish to wait and see before changing a
norm that our society (like all others) has accepted for centuries. That is not
preserving tradition for its own sake. No one here claims that the States original
definition of marriage was unconstitutional when enacted. . . . A State still
assessing how [same-sex marriage] has worked, whether in 2004 or 2014, is not
showing irrationality, just a sense of stability and an interest in seeing how the
new definition has worked elsewhere.
Id. at 11.
So far, not a single United States Supreme Court Justice in American history has
written an opinion maintaining that the traditional definition of marriage violates
the Fourteenth Amendment. No one would accuse the Supreme Court of acting
irrationally in failing to recognize a right to same-sex marriage in 2013. Likewise,
we should hesitate to accuse the States of acting irrationally in failing to recognize
the right in 2004 or 2006 or for that matter today.

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Id. at 22.
For these reasons and those set forth in our Memorandum in Opposition to Preliminary
Injunction, South Carolina law is Constitutional.
CONCLUSION
As DeBoer emphasized, and as Windsor and Newdow, as well as Wilkins stressed, the
definition of marriage has always been the prerogative of the States to determine. Baker rests
upon this principle as well, as does Rooker-Feldman. Our other defenses, including the Eleventh
Amendment and lack of standing provide further grounds for dismissal. South Carolinas laws
defining marriage are constitutional and this Court should not disregard these fundamental tenets
of Federalism. As a result, the Court should dismiss this case. As stated in Deboer, [w]hen the
courts do not let the people resolve new social issues like this one, they perpetuate the idea that
the heroes in these change events are judges and lawyers. Better in this instance, we think, to
allow change through the customary political processes . . . . 2014 WL 5748990, at *26.
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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2:14-cv-04010-RMG

Date Filed 11/07/14

Entry Number 33-1

Page 30 of 30

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 7, 2014

30