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02/17/2015 @ 04:23:18 P M
Honorable Julia Jordan Weller
Clerk O f The Court
No.
1140460 "
PARTE
STATE
ALABAMA POLICY I N S T I T U T E
C I T I Z E N S A C T I O N PROGRAM,
Petitioner,
EX R E L .
ALABAMA
AND
v.
ALAN
JEFFERSON
AS
L. KING,
COUNTY, A L A B A M A ,
J U D G E OF P R O B A T E
HIS
OFFICIAL
STEVEN
I N H I S O F F I C I A L C A P A C I T Y AS J U D G E OF P R O B A T E
ROBERT M. M A R T I N ,
L. REED,
FOR C H I L T O N C O U N T Y , A L A B A M A ,
C A P A C I T Y A S J U D G E OF P R O B A T E
I N HIS OFFICIAL
MONTGOMERY C O U N T Y , A L A B A M A ,
AND
TOMMY
FOR M A D I S O N
RAGLAND,
COUNTY,
J U D G E OF
EACH
FOR
I N H I S OR HER
PROBATE,
Respondents.
EMERGENCY
PETITION
FOR WRIT
OF
MANDAMUS
L . Dean J o h n s o n (JOH046)
L . D e a n J o h n s o n , PC
4 0 3 0 B a l m o r a l D r . SW
H u n t s v i l l e , AL 35801
T e l : (256) 880-58177
Fax:
(256) 880-5187
Email: dean@ldjpc.com
Counsel
f o rMovants
IN
ALABAMA,
C A P A C I T Y AS J U D G E OF P R O B A T E
O F F I C I A L C A P A C I T Y AS A N A L A B A M A
FOR
INTRODUCTION
Pursuant
Education
Defense
t o Rule
Foundation
Fund
seek
accompanying
amicus
petitioner
this
Alabama
traditional
Court's
nationally,
Movants
respectfully
submit
presented
efforts
Movants
raised
i n this
relevant
original
to resolve
have
this
direct
i n
support
Legal
Forum")
file
the
of
the
headquartered
that
than
30 y e a r s ,
Movants
have
defended
traditional
their
In that
review
t o t h e same-sex
will
marriage
process,
of the legal
marriage
issues
a i d t h e Court
pressing issue.
vital
i n
F o r more
and wife.
action
and
"Eagle
to
including
o f husband
issues
or
&
t o Rule 29.
respectively.
values,
o f Alabama
Education
corporations
as t h e union
policy
Forum
leave
brief
defined
and
Forum
pursuant
and
American
Eagle
"Movants"
are nonprofit
and M i s s o u r i ,
both
Eagle
curiae
and r e l a t o r s
Movants
in
and
(collectively,
respectfully
Alabama
27, movants
For these
interests
i n i t s
reasons,
i n the
issues
proffered
amicus
here.
ARGUMENT
Movants
brief
in
respectfully
(hereinafter,
submit
"Eagle
Forum
that
their
Br.")
would
a i dt h e Court
1.
Movants'
Statement
28(a)(3),
amicus
2.
(b) a n d 29
brief
challenge
district
3.
For
Eagle
ability
the
i n Searcy
v.
raised
to
by
Rules
proposed
Forum B r . a t
iii-iv.
of the respondents
orders
Strange,
of
the
No.
( P e t . E x . A)
to
federal
1:14-208-CG-N
a n d Strawser
v.
No.
1:14-
424-CG-C
E x . B)
under
jurisdiction
Eagle
Movants'
brief
this
the
issues
and Alabama's
identifies
Court
to
raised
reasons,
grant Movants
sovereign
immunity.
F o r u m B r . a t 9-26.
for
these
outlines
pursuant
issues
See
A l a . J a n . 23, 2015)
federal
See
covers
collaterally
court
Strange,
(Pet.
Jurisdiction
E q u a l i t y Alabama.
Movants'
(S.D.
of
retain
here.
there
the authority
exclusive
See
Eagle
i s good
leave to f i l e
their
and
necessity
jurisdiction
over
Forum B r . a t 26.
cause
amicus
f o r the Court
to
brief.
CONCLUSION
Movants
their
motion
brief
i n this
respectfully
f o r leave
request
to
file
action.
that
the
this
Court
accompanying
grant
amicus
Dated:
February
17,
2015
Respectfully
submitted,
CERTIFICATE OF
I
I
hereby
certify
electronically
accompanying
Court
send
filed
amicus
o f Alabama
notification
that
on t h e 1 7 t h d a y o f F e b r u a r y 2 0 1 5 ,
the
brief,
using
foregoing
with
motion,
the Clerk
the ACIS
of such
SERVICE
filing
filing
of
system,
with i t s
the
Supreme
which
will
to the following:
H o n . R o b e r t M. M a r t i n
Judge of Probate
C h i l t o n County
500 2 n d A v e n u e N o r t h
C l a n t o n , AL 35045
probate@chiltoncounty.org
M a t h e w D. S t a v e r
H o r a t i o G. M i h e t
R o g e r K. G a n n a m
L i b e r t y Counsel
P.O. BOX 54 077 4
O r l a n d o , FL 32854-0774
court@LC.org
H o n . Tommy R a g l a n d
Judge of Probate
Madison
County
100 N o r t h S i d e S q u a r e ,
Room 1 0 1
H u n t s v i l l e , AL 35801
phanson@co.madison.al.us
A. E r i c J o h n s t o n
S u i t e 107
1200 C o r p o r a t e D r i v e
B i r m i n g h a m , AL 35242
eric@aericjohnston.com
Samuel J . McLure
The A d o p t i o n Law F i r m
PO B o x 2 3 9 6
Montgomery, AL 36102
sam@theadoptionfirm.com
H o n . S t e v e n L. R e e d
Judge of Probate
Montgomery County
Montgomery C t y Courthouse
Annex I , T h i r d F l o o r
100 S o u t h L a w r e n c e S t r e e t
M o n t g o m e r y , AL 36104
probate@mc-ala.org
Luther Strange
Alabama A t t o r n e y G e n e r a l
501 W a s h i n g t o n A v e n u e
Montgomery, AL 36130-0152
smclure@ago.state.al.us
J . R i c h a r d Cohen
David
Dinielli
S o u t h e r n P o v e r t y Law C e n t e r
400 W a s h i n g t o n A v e n u e
M o n t g o m e r y , AL 36104
richard.cohen@splcenter.org
david.dinielli@splcenter.or
R a n d a l l C. M a r s h a l l
ACLU o f A l a . Found.
P.O. B o x 6 1 7 9
Montgomery, AL 36106
rmarshall@aclualabama.org
S h a n n o n P. M i n t e r
C h r i s t o p h e r F. S t o l l
Nat'l C t r f o r Lesbian
Rights
870 M a r k e t S t . , S t e . 370
S a n F r a n c i s c o , CA 9 4 1 0 2
SMinter@nclrights.org
CStoll@nclrights.org
Ayesha Khan
Am. U n i t e d f o r S e p a r a t i o n
of Church & State
1301 K S t r e e t ,
N.W.
W a s h i n g t o n , D.C. 2 0 0 0 5
khan@au.org
H o n . A l a n L. K i n g
Judge of Probate
J e f f e r s o n County
716 N. R i c h a r d A r r i n g t o n J r . B l v d .
B i r m i n g h a m , AL 35203
kinga@jccal.org
February
17, 2015
Respectfully
submitted,
EXHIBIT
BRIEF FOR A^ICI CURIAE EAGLE FORUM OF ALABAMA
EDUCATION FOUNDATION AND EAGLE FORUM EDUCATION &
LEGAL DEFENSE FUND IN SUPPORT OF PETITIONER
No.
IN
EX
1140460
PARTE S T A T E
A L A B A M A P O L I C Y I N S T I T U T E AND A L A B A M A
C I T I Z E N S A C T I O N PROGRAM,
Petitioner,
EX R E L .
v.
A L A N L . K I N G , I N H I S O F F I C I A L C A P A C I T Y AS J U D G E OF PROBATE FOR
J E F F E R S O N COUNTY, A L A B A M A , ROBERT M. M A R T I N , I N H I S O F F I C I A L C A P A C I T Y
AS J U D G E OF P R O B A T E FOR C H I L T O N COUNTY, A L A B A M A , TOMMY RAGLAND, I N
HIS
S T E V E N L . R E E D , I N H I S O F F I C I A L C A P A C I T Y AS J U D G E OF PROBATE FOR
JUDGE DOES ##1-63, EACH I N H I S OR HER
O F F I C I A L C A P A C I T Y AS A N A L A B A M A J U D G E OF P R O B A T E ,
Respondents.
EMERGENCY
PETITION
FOR WRIT
OF
MANDAMUS
L. D e a n J o h n s o n ( J O H 0 4 6 )
L. D e a n J o h n s o n , PC
4 0 3 0 B a l m o r a l D r . SW
H u n t s v i l l e , A L 35801
T e l : (256) 880-58177
Fax:
(256) 880-5187
Email: dean@ldjpc.com
Counsel
f o r Amici
Curiae
TABLE OF CONTENTS
Table
of Contents
Statement
Table
of Jurisdiction
of Authorities
i
v
Exhibits
i x
Identity,
Interest
Statement
o f t h e Case
Statement
of Issues
Standard
and A u t h o r i t y
to File
o f Review
Summary o f A r g u m e n t
Argument
I.
Alabama's M a r r i a g e
II.
The P r o b a t e J u d g e s L a c k A u t h o r i t y t o V i o l a t e
Alabama's M a r r i a g e Laws, a n d t h e F e d e r a l
C o u r t s L a c k A u t h o r i t y t o Command O t h e r w i s e
A.
B.
Laws A r e C o n s t i t u t i o n a l
1.
2.
A r t i c l e I I I ' s Grant o f A u t h o r i t y t o
the Federal J u d i c i a r y Excludes
J u r i s d i c t i o n over M a r r i a g e Cases
13
The D o m e s t i c - R e l a t i o n s E x c e p t i o n t o
Federal J u r i s d i c t i o n Denies t h e
Lower F e d e r a l C o u r t s J u r i s d i c t i o n
over M a r r i a g e Cases
14
3.
C.
The L o w e r F e d e r a l C o u r t s ' A u t h o r i t y
o v e r M a r r i a g e R i g h t s May Be M o r e
N a r r o w t h a n t h e Supreme C o u r t ' s
A u t h o r i t y under A r t i c l e I I I
19
F e d e r a l J u d g m e n t s A r e Open t o C o l l a t e r a l
A t t a c k f o r V i o l a t i n g Alabama's Immunity
f r o m S u i t i n F e d e r a l C o u r t , as W e l l as
for Exceeding Federal Authority
21
I I I . In A d d i t i o n to Alabama's R e l i e f Requested,
t h i s Court Should Retain E x c l u s i v e
J u r i s d i c t i o n t o Ensure Compliance w i t h Alabama
Law
26
Conclusion
26
Certificate
of
Service
28
ii
STATEMENT OF JURISDICTION
This
Court
necessary
to
has
give
courts
of inferior
CONST.
1901;
State
o f Alabama
Diamond
Court
v.
original
jurisdiction
i t general
supervision
jurisdiction."
12-2-7(3),
ALA.
has obvious
and
VI,
may
be
control
of
140(b), ALA.
1 9 7 5 . The
CODE
petitioner
standing to protect
U.S.
54,
has t h e independent
duty
t o s u p e r v i s e Alabama's
Insofar
respondents'
authority
as
clear
to bring
this
public
this
action
duties,
action
62-65
i t s laws,
476
courts.
Charles,
Art.
"as
seeks
(1986),
to
the private
and
this
lower
enforce
the
relators
have
on b e h a l f o f t h e S t a t e :
A mandamus p r o c e e d i n g t o c o m p e l a p u b l i c
o f f i c e r t o perform a l e g a l duty i n which
the
public
has
an
interest,
as
distinguished
from
an
official
duty,
a f f e c t i n g a p r i v a t e i n t e r e s t merely, i s
p r o p e r l y b r o u g h t i n t h e name o f t h e S t a t e
on t h e r e l a t i o n o f one o r more
persons
interested
i n t h e performance
of
such
duty
to the public,
unless the matter
concerns
the sovereign
rights
of the
State,
i n
which
event
i t must
be
instituted
on
the
relation
of
the
Attorney General, the law o f f i c e r of the
State.
Gray
v.
293,
294
proceed
143
State
ex r e l . Garrison,
2 3 1 A l a . 2 2 9 , 2 3 0 , 164 S o .
( A l a . 1935) ( r e l a t o r s
i n S t a t e ' s name);
A l a . 145,
147,
42
require
Jackson
So.
61,
"public
v. State
62
interest" to
ex r e l .
( A l a . 1904)
Tillman,
(citing
Montgomery
157
may
of
v.
State
( A l a . 1894))
ex
r e l . Enslen,
(members
challenge a judge's
Jefferson
74,
Cty.
131
(relators
The
have
"community
enforcing
Meredith,
in
274
the
(sufficient
statistics)
2d
in
third-parties'
uniquely
affect
that
the p e t i t i o n
186,
tax
the
arose
circa
So.
January
timely.
iv
Educ.
A l a . 70,
cases)
2d
308,
in
Rodgers
314-15
public
The
action
23-26,
third
brought
2015,
the
bring
reporting
public
as
in
to
273 A l a . 390,
Alabama
original
laws
Compare
assessments).
such
of
interest
(insufficient
issues
an
name.
Morris,
entire
Bd.
i n the subject-matter").
interest
v.
So.
relators
222
marriage
146
as
18
(collecting
sufficient
( A l a . 1962)
As
was
public
sovereign
assessments.
actions
170
interest
State's
Morrison
So.
actions
169,
with
1930)
Alabama's
A l a . 179,
filing
r e l . Kuchins,
(Ala.
has
A l a . 372,
to hold office);
ex
242
public
action
1962)
State
239,
respondents'
of the public
right
So.
general
this
v.
107
v.
(Ala.
prison
392,
141
interest
respondents'
and
are
parties'
to
not
tax
contest
the f i l i n g
of
TABLE OF AUTHORITIES
CASES
Adoptive
133
Couple
v. Baby
Girl,
S . C t . 2552 (2013)
Agostini
521
v.
Felton,
U.S. 2 0 3 ( 1 9 9 7 )
Ala.
21
7-8
Dep't of Corr.
v. Montgomery
11 S o . 3 d 1 8 9 ( A l a . 2 0 0 8 )
Alden
v.
Maine,
527 U.S. 7 0 6
County
Comm'n,
25
2
(1999)
Am. Elec.
Power Co. v.
131 S . C t . 2 5 2 7 ( 2 0 1 1 )
Connecticut,
4
19
Ankenbrandt
v.
R^ichards,
504 U.S. 689 ( 1 9 9 2 ) .
15
Baker
v.
Nelson,
2 9 1 M i n n . 3 1 0 , 1 9 1 N.W.2d 1 8 5 ( M i n n .
1971)
Baker
v.
Nelson,
409 U.S. 810 ( 1 9 7 2 )
5 , 7 - 8 , 18
Barber
v.
Barber,
62 U.S. ( 2 1 How.) 582 ( 1 8 5 9 )
1 0 - 1 1 , 1 4 , 15
Kuchins,
i v
v.
State,
39 A l a . 617 ( A l a . 1 8 6 6 )
Califano
430
10
v.
Sanders,
U.S. 99 ( 1 9 7 7 )
Chem. Mfrs.
Ass'n
v. Natural
470 U.S. 1 1 6 ( 1 9 8 5 )
Chicago
143
Diamond
476
v.
Charles,
U.S. 54 ( 1 9 8 6 )
16
Res. Def.
Council,
Inc.,
1 5 , 17-18
Wellman,
25
i
Dolgencorp,
28 S o .
Ex
Ex
Inc.
v.
Taylor,
3 d 737 ( A l a . 2 0 0 9 )
parte
Kimberly-Clark
Corp.,
779 S o . 2 d 178 ( A l a . 2 0 0 0 )
parte
Young,
209 U.S.
123
(1908)
Fed'l
Maritime
Comm'n v.
535 U.S. 743 ( 2 0 0 2 )
F i r s t Nat'l
Bank v.
223 A l a . 2 2 , 134
Fourco
Glass
353 U.S.
Co.
222
26
2,
South
Carolina
v. Transmirra
(1957)
Products
Heckler
465
Hicks
422
In
re
136
Jackson
143
Corp.,
17
2003)
10
i
i
2
Drown,
729 ( 2 0 0 9 )
16
Mathews,
728 ( 1 9 8 4 )
24
v.
Miranda,
U.S. 332 ( 1 9 7 5 )
v.
U.S.
Burrus,
U.S. 586
(1890)
v. State
ex r e l .
A l a . 1 4 5 , 42 S o . 61
Loving
v.
206 V a .
10
Tillman,
( A l a . 1904)
Commonwealth,
9 2 4 , 147 S . E . 2 d 78
(Va.
Loving
v.
Virginia,
388 U.S.
1 (1967)
Mandel
v.
432 U.S.
Maynard
125
26
14-15,
v.
Louisiana,
134 U.S.
1 (1890)
Haywood
v.
556 U.S.
Auth.,
Bradley,
S o . 621 ( A l a . 1931)
v. State
ex r e l .
Garrison,
231 A l a . 2 2 9 , 164 S o . 293 ( A l a . 1935)
Hans
Ports
18
Goodridge
v. Dep't of Pub.
Health,
440 M a s s . 3 0 9 , 798 N . E . 2 d 941 ( M a s s .
Gray
State
17
1966)
i i i - i v
20
20
Bradley,
173 ( 1 9 7 7 )
7-8
v. H i l l ,
U.S.
190 ( 1 8 8 8 )
14
vi
Merrell
478
Dow Pharm.,
Inc.
U.S. 804 ( 1 9 8 6 )
v.
Thompson,
1 1 , 1 6 , 19
Michael
H. v. Gerald
D.,
491 U.S. 110 ( 1 9 8 9 )
Morales
504
v. Trans
U.S. 374
20-21
World
A^irlines,
(1992)
Morrison
v.
Morris,
273 A l a . 3 9 0 , 1 4 1 S o . 2 d 169
Mt.
Healthy
City
429 U.S. 274
Sch. Dist.
(1977)
Bd.
Inc.,
2
( A l a . 1962)
of Educ.
v.
v. Defenders
of
Wildlife,
1 5 , 17
Nelson
Realty
Co. v. Darling
Shop of Birmingham,
267 A l a . 3 0 1 , 1 0 1 S o . 2 d 78 ( A l a . 1 9 5 7 )
York Trust
Co. v.
256 U.S. 3 4 5 ( 1 9 2 1 )
Doyle,
12
Nat'l
Ass'n
of Home Builders
5 5 1 U.S. 644 ( 2 0 0 7 )
New
i v
Inc.,
26
Eisner,
16
Osborn
v. Bank of the U.S.,
22 U.S. (9 W h e a t . ) 738 ( 1 8 2 4 )
19
Palmore
466
20
v. S i d o t i ,
U.S. 429 ( 1 9 8 4 )
Perez
v.
Ledesma,
401 U.S. 82 ( 1 9 7 1 )
Rescue
Army v. Municipal
3 3 1 U.S. 5 4 9 ( 1 9 4 7 )
17
Court
of City
of Los
25
Reynolds
v. U.S.,
98 U.S. 1 4 5 ( 1 8 7 8 )
Rodgers
274
14
v.
Meredith,
A l a . 1 7 9 , 146 S o . 2 d 308
( A l a . 1962)
Searcy
v. Strange,
No. 1 : 1 4 - 2 0 8 - C G - N
(S.D. A l a . J a n . 2 3 , 2 0 1 5 )
Sosna v. Iowa,
419 U.S. 3 9 3
i v
1 , 3 , 5 , 9, 2 0 , 22-23
(1975)
25
State
v. Cawood,
2 S t e w . 360 ( A l a . 1 8 3 0 )
Steel
Co. v. C i t i z e n s for
523 U.S. 83 ( 1 9 9 8 )
Angeles,
a Better
Env't,
21
vii
Strawser
v. Strange,
No. 1 : 1 4 (S.D. A l a . J a n . 2 6 , 2 0 1 5 )
Summers
555
v. Earth
U.S. 488
Island
(2009)
424-CG-C
1 , 3 , 5 , 9, 2 0 , 22-23
Inst.,
12
Summit Medical
Ass'n,
P.C. v.
Pryor,
180 F . 3 d 1 3 2 6 ( 1 1 t h C i r . 1 9 9 9 )
T a f f l i n v.
493 U.S.
Levitt,
455 (1990)
Travelers
Indem.
557 U.S. 137
Troxel
v.
530 U.S.
v.
U.S.
18
Co. v.
(2009)
Bailey,
4 - 5 , 22-23
Granville,
57 ( 2 0 0 0 )
U.S. v.
Windsor,
133 S . C t . 2 6 7 5
Vasquez
503
21
(2013)
7 - 8 , 20
Harris,
1000 (1992)
26
STATUTES
U.S. CONST. a r t . I I I
5 , 1 1 - 1 3 , 1 5 , 1 7 , 19-21
U.S. CONST. a r t . I I I , 2
13
18
1 , 19
amend. X I V , 1 , c l . 3
28
U.S.C.
1257
20
28
U.S.C.
1331
16-19
28
U.S.C.
1343
17-18
28
U.S.C.
1346(a)(1)
20
1983
17
42 U.S.C.
Art.
I , 36.03,
Art.
V I , 140(b),
12-2-7(3)
30-1-19,
A L A . CONST.
1901
ALA. CONST.
1901
A L A . CODE 1 9 7 5
A L A . CoDE 1 9 7 5
1
i
i
1
viii
Civil
R i g h t s A c t o f 1871,
17 S t a t . 13
17
J u d i c i a r y A c t o f 1875,
18 S t a t . 470
Pub.
17
L . No. 9 6 - 4 8 6 , 2 ( a ) ,
94 S t a t . 2 3 6 9 ( 1 9 8 0 ) .
16
RULES AND
REGULATIONS
ALA.
R U L E S OF P R O F ' L CONDUCT,
R u l e 1.2(d)
24
ALA.
R U L E S OF P R O F ' L CONDUCT,
Rule
23
8.4(d)
OTHER AUTHORITIES
Baker
v. Nelson,
No. 7 1 - 1 0 2 7 ( U . S . ) ,
J u r i s d i c t i o n a l S t a t e m e n t ( O c t . T e r m 1972)
Strawser
v. Strange,
No. 1 : 1 4 - 424-CG-C (S.D. A l a . ) ,
Emergency V e r i f i e d M o t i o n by J e f f e r s o n
County
P r o b a t e Judge A l a n K i n g f o r Leave t o I n t e r v e n e
as a P a r t y as o f R i g h t o r , i n t h e A l t e r n a t i v e , b y
P e r m i s s i o n (Feb. 15, 2015)
EXHIBITS
Baker
v. Nelson,
No. 7 1 - 1 0 2 7 ( U . S . ) ,
J u r i s d i c t i o n a l S t a t e m e n t ( O c t . T e r m 1972)
ix
A1
curiae
Foundation
and Eagle
(collectively,
the
these
defined
reasons
motion,
Amici
raised
here.
and
have
leave
those
direct
to file
values,
the union
of
Education
Defense
this
30 y e a r s ,
including
husband
set forth
and v i t a l
Alabama
& Legal
F o r more t h a n
American
as
of
Education
seek
motion.
traditional
marriage
Forum
Forum
"Amici"),
accompanying
defended
Eagle
i n
brief
Amici
by
have
traditional
and w i f e .
the
interests
Fund
For
accompanying
i n the issues
Searcy
v. Strange,
No. 1 : 1 4 - 2 0 8 - C G - N
2 0 1 5 ) ( P e t . E x . A ) , a n d Strawser
424-CG-C
judge
Callie
General
from
enforcing
Granade
A r t . I , 36.03,
Marriage
Protection
Act,
(collectively,
"Alabama's
the
Amendment
Fourteenth
the Attorney
Alabama's
Marriage
e n j o i n e d t h e Alabama
Laws")
to the United
h a s no
t h e Searcy
of
federal
Attorney
Marriage
1901 a n d t h e Alabama
30-1-19,
Marriage
General
Laws,
Sanctity
A L A . CONST.
Jan.
No. 1 : 1 4 -
( P e t . Ex. B ) ,
Alabama's
Amendment,
Because
v. Strange,
district
(S.D. A l a .
ALA.
1975
CODE
as a v i o l a t i o n o f
States
Constitution.
authority
a n d Strawser
to
enforce
cases
both
violate
Alabama's
suits
against
Louisiana,
728
U.S.
Young
applies
are
the
134 U.S.
(1999);
parte
209
U.S.
Ass'n,
P.O.
v.
123,
exception
to
defendant
has
of
374,
180
Ex
Alabama's
any
law").
'who
see
sovereign
Trans
Young
parte
Medical
( 1 1 t h C i r . 1999)
operate
exception
inapposite
to
and
Ex
as
where
enforcement
authority
Ex
World
Summit
immunity
the
the
immunity
(quoting
cannot
706,
threaten
v.
also
v.
of
an
no
the
t o Alabama's
because
implement
the
the
s t a t e law.
the action
the
relation
(hereinafter,
violating
lacks
(1992)
plainly
527 U.S.
Morales
Young
T h e Ex parte
In
probate
officers
to
Hans
sovereign
connection
officer
court.
Significantly,
to
(1908));
parte
i s , therefore,
challenged
XI.
382
unconsented-to
v. Maine,
exception
156
Pryor,
doctrine
defendant
Alden
proceedings.'"
U.S.
as
federal
amend.
CONST.
504
Young,
immunity
in
to "enjoining state
Inc.,
challenged
immunity
(1890);
t o commence
Airlines,
on
State
officer-suit
only
about
("the
sovereign
judges
before
of
two
"Alabama")
this
Alabama
seeks
(hereinafter,
Alabama
law -
Court,
and
to
the
the State
o f Alabama
public-interest
enjoin
"Probate
thereby
the
groups
respondent
Judges")
exceeding
from
their
authority
Judge
- by
Granade's
Attorney
same-sex
marriage
Searcy-Strawser
orders
licenses
against
based
on
t h e Alabama
General.
over
King
issuing
t h e weekend,
one
of the respondents
- m o v e d t o i n t e r v e n e i n t h e Strawser
here
Judge
litigation:
Judge
King
faces
an
imminent
risk
of
being
subjected to a state court
order
that
will
put him i n the p o s i t i o n
of
having t o choose e i t h e r t o d i s r e g a r d t h e
United States Constitution,
w h i c h he i s
sworn t o uphold,
thereby
s u b j e c t i n g him
to
liability
and
perhaps
personal
liability
f o r damages a n d a t t o r n e y f e e s ,
or
to disregard
a
state
court
order
thereby
subjecting
him
to
contempt
proceedings,
sanctions
and/or
possible
impeachment under Alabama l a w . Judge K i n g
seeks r e l i e f from t h i s Court.
Strawser,
No.
Jefferson
County
Intervene
1,
be
at
leave
Judge
"provide
Probate
as a P a r t y
Permission,
seeking
1:14-424-CG-C,
entitled."
(Feb.
nonetheless
a l l other
Id.
Judge
Alan
as o f R i g h t
to intervene
King
Emergency
15,
"as
Verified
King
for
Motion
by
Leave
to
asks
further relief
party
the
Although
nominally
Defendant,"
district
t o which
Judge
by
id.
at
court
to
King
may
a t 3.
STATEMENT OF ISSUES
In
addition
to
the
issues
set
forth
in
Alabama's
petition,
Amici
respectively
submit
consider
whether
t h e Probate
Judges
collaterally
so,
whether
t o challenge
t h e Probate
Judge
In
evade
the
addition,
this
of
Court's
Strawser
efforts
jurisdiction
at "friendly
this
have
a basis
Court
should
further
i f
Alabama
Laws.
attempt
t o intervene
t o evade
require
which
and,
under
King's
by moving
must
on
orders
duty
t o Judge
litigation"
o f Alabama
have
Court
Alabama's M a r r i a g e
respect
litigation,
t h e People
Court.
with
this
Granade's
Judges
l a w t o do s o b e f o r e v i o l a t i n g
that
consider
into
whether
the popular
actions
to
will
by
this
8.4(d).
STANDARD OF REVIEW
This
Court's
review
federal
l a w i s de novo:
as
adjudicators,
sole
decisions
court."
2540
n.5
are
binding
(Ala.
federal
lack
Power
2009)
here,
court over
Alabama
law and
district
judges,
sitting
t o render
precedential
members
o f t h e same
even
Oo. v. Connecticut,
Inc. v. Taylor,
("United
this
of both
authority
judges,
Dolgencorp,
not controlling
relevant
"federal
other
Am. Elec.
(2011);
of issues
States
authority
Court
Alabama
de novo.
2527,
28 S o . 3 d 7 3 7 ,
district
i nthis
reviews
131 S.Ct.
court
decisions
C o u r t " ) . Moreover,
the jurisdiction
Travelers
744
Indem.
as
o ft h e
Oo. v.
Bailey,
5 5 7 U.S. 1 3 7 ,
152-53
& n.6 ( 2 0 0 9 ) .
SUMMARY OF ARGUMENT
At
the
Granade's
U.S.
outset,
holdings
Supreme
Nelson,
on same-sex
Court's
Marriage
issuing
federal
Laws
same-sex
courts'
orders
are
define
t h e lower
federal
courts
broad,
England
legal
a t the
time
marriage
directly
Since
under
the
law-and-equity
the Constitution
of jurisdiction
district
statutes
that
confine t h e
While
t h a t may
structure
Article
courts'
constituted
continue
and i n d i r e c t l y
federal
III
subject-
at law nor a
t o t h e lower
from
Courts.
drafted
limits
Alabama's
t h ecourt
o f what
case
lacking
U.S.
and the
federal
v.
claims
Judges
jurisdiction
t h e question
a
same
as
on Alabama
Framers
t h e lower
was n e i t h e r
those
and
Under
with t h e
event,
that
defined
jurisdiction,
equity.
grants
t o cases
courts'
i t i s not complete.
Congress
matter
licenses,
Constitution
federal
the
t h e Probate
controlling
both
any
Judge
i n Baker
litigation
prohibit
not
rejected
In
of
conflict
decision
which
question.
marriage
Significantly,
and
controlling
clearly
merits
marriage
i n t h e Searcy-Strawser
substantial
in
substantive
4 0 9 U.S. 8 1 0 ( 1 9 7 2 ) ,
asserted
sound
the
case i n
t o apply
under t h e
courts, the
"domestic-relations
which
the
courts
federal
have
exception"
long
district
court.
Moreover,
exception
t o federal
Alabama's
sovereign
immunity
Judge
to
court,
enforce
Judges
Laws
have
before
ensure
over
her orders.
acquiescing
this
this
Given
with
Court
original
may
baseless
Alabama
should
as
to
that
attack
anyone
the
Alabama's
seeks
Probate
Marriage
federal
exclusive
as
suits i n
order.
l a w and complete
retain
well
collaterally
defense,
t o defend
the domestic-
unconsented-to
that
to a
jurisdiction
under
i n t h e event
the obligation
compliance
relief,
Judges
jurisdiction
jurisdiction
jurisdiction,
from
t h e Probate
Granade's
federal
recognized - denies
relations
federal
to
To
equitable
jurisdiction
action.
ARGUMENT
I.
both
discussing
t h e Probate
first
merits.
rejected
Process
Judges
emphasize
jurisdiction
the jurisdictional
that
Judge
and t h e lower
-
and Equal
that
federal
addition
Granade
T h e U.S. S u p r e m e
t h e concept
i n
also
Court
to
already
Clauses
courts,
acting
i s simply
wrong
on
Amici
without
on t h e
the Fourteenth
Protection
constraints
Amendment's
include
Due
federal
right
to
same-sex
310,
191
N.W.2d
sex
couple,
Minnesota
Supreme
marriage.
185
to
(1972).
Supreme
2675
been
decided
(2013)
amended
in
the
binding
on
173,
the
176
same-sex
in
of
and
done
so
of
any
same-
and
benefits
that
marriage,
v.
and
for
the
want
Nelson,
409
in
U.S.
course,
the
way
v.
U.S.
of
U.S.
r e v e r s e d Baker
material
to
Court
necessarily
federal
(1977).
Given
follow
Supreme C o u r t
resolved
substantial
lower
marriages,
obligation
not
Minn.
plaintiffs,
appeal
has
and,
f o r want
"presented
U.S.
Supreme
issues
U.S.
their
291
a
810
despite
Windsor,
133
Constitution
has
since
was
Baker
1972.
Because
dismissed
have
Nelson,
rights
husband-wife
Court
v.
the
q u e s t i o n . Baker
opportunity to
S.Ct.
not
The
same
dismissed
federal
Baker
1971),
the
conveyed
substantial
the
(Minn.
sought
Court
In
the
that
lower
Baker
and
federal
question,
the
in
are
Mandel
v.
remains
federal
authority
to reverse
summarily
decided"
courts.
that
Baker
and
Baker
Bradley,
on
point
for
courts
have
an
i t to
the
leave
Baker:
"[I]f
a
precedent
of
this
Court
has
d i r e c t a p p l i c a t i o n i n a case, yet appears
t o r e s t on r e a s o n s r e j e c t e d i n some o t h e r
l i n e of d e c i s i o n s , the Court of Appeals
should
follow
the
case
which
directly
controls,
leaving
to
this
Court
the
7
432
prerogative
decisions."
Agostini
v.
quotation
omitted).
summary
time
Hicks
Felton,
decisions
as
against
laws.
and
federal
forecloses
for
"lower
[they]
are
laws
applied
to reject
the conclusion
(1975)
Court
its
that
a r e bound by
until
Windsor
that
(interior
Court
332, 344-45
believed
failure
courts
that
course,
own
(1997)
Supreme]
t h e Supreme
marriage
i t s
2 0 3 , 237
[them]
U.S.
Of
Court
The C o u r t ' s
controlling.
II.
informs
omitted).
t h e Supreme
U.S.
[ t h e U.S.
422
opportunity
overruling
Accordingly,
by
Miranda,
quotations
if
521
t h e Court
v.
obvious
of
Windsor
to
Baker
not."
(interior
presented
t o have
Baker
such
an
done s o ,
reasoning
state
marriage
speaks
volumes
i s no
longer
r e s p e c t f u l l y submit
that
t h e Probate
Judges
lack
T h e Baker
jurisdictional
statement p l a i n l y
presented
the q u e s t i o n whether d e n y i n g same-sex m a r r i a g e v i o l a t e s t h e
C o n s t i t u t i o n ' s e q u a l - p r o t e c t i o n and due-process r i g h t s that
Plaintiffs
here
assert.
Baker
v. Nelson,
No.
71-1027,
J u r i s d i c t i o n a l S t a t e m e n t a t 3 (U.S. O c t . Term 1 9 7 2 ) . Under
Mandel
a n d Hicks
t h e n , Baker
necessarily decided that
there
i s no b a s i s u n d e r f e d e r a l e q u a l - p r o t e c t i o n
or due-process
a n a l y s i s t o s u p p o r t t h e c l a i m t h a t same-sex r e l a t i o n s h i p s
deserve
t h e same
recognition,
rights,
or benefits
as
husband-wife marriage.
1
authority
of
to
Alabama
orders.
same-sex
law,
notwithstanding
Moreover,
jurisdiction
obligation
anyone
issue
because
to
attack
to enforce
wholly
support
Marriage
Laws
same-sex
marriage
Strawser
litigation.
lower
infra,
court's
Probate
court
Judges
collaterally
lacks
have
i f and
the
when
orders.
Probate
licenses
See
in
Pet.
response
at
11-19.
to
orders
are
open
retain
not
only
Amici
assert
exclusive
resolved.
See
to
III,
issuing
the
Searcybecause
Section
submit
i t s jurisdiction
Section
from
collateral
respectfully
jurisdiction
Alabama's
Moreover,
their
II.C, infra,
that
Judges
jurisdiction,
must
B.
the
argument
lack
must
finally
prohibit
Alabama's
courts
Court
until
here,
this
II.B,
attack,
that
this
but
matter
also
is
infra.
In Alabama,
t h e common l a w p r e v a i l s
the Constitution,
State
district
federal
and
Section
by
the
violation
federal
the
orders
in
Amici
the
the
licenses
the
the
f o r i t s orders,
attempts
A.
marriage
v.
Cawood,
the
2 Stew.
Legislature,
360,
362
except
or
an
as
abrogated
Alabama
( A l a . 1 8 3 0 ) . As
court.
with
most
American
from
jurisdictions,
the English
naturally
looks
common-law
issues.
1866).
voluntary
union
exclusion
of
Health,
440
(quoting
Thus,
the
common
to
In English
v.
o f o n e man
of marriage
6 1 7 , 629
was d e f i n e d
v.
N.E.2d
Dep't
941
A l l
(Ala.
to the
of
Pub.
(Mass.
2003)
175
(1866)).
E.R.
i n Alabama
on
as " t h e
a n d o n e woman,
Goodridge
[1861-1873]
therefore
authoritative
39 A l a .
3 0 9 , 3 4 3 , 798
Hyde,
as
adopted
has always
been
definition.
our federal
sovereign
i n
Government,
recognized
cases
State,
l a w was
and Alabama
law, marriage
for life
Mass.
Reflecting
Federal
v.
common
the definition
remain
English
Burt
common
l a w , id.,
a l l others."
Hyde
current
Alabama's
structure,
the
spheres
the
U.S.
i n which
not
delegated
Supreme
"domestic-relations"
the states
Court
exception
to the
has
to
long
federal
jurisdiction:
The
whole
subject
of
the
domestic
r e l a t i o n s o f husband and w i f e , parent and
c h i l d , belongs t o t h e laws o f t h e States
and n o t t o t h e laws o f t h e U n i t e d S t a t e s .
In
re
Supreme
Burrus,
Court
jurisdiction
subject
136 U.S.
previously
5 8 6 , 593
had
i n the courts
of divorce,
(1890).
"disclaim[ed]
of the United
either
10
Indeed,
t h e U.S.
altogether
States
as an o r i g i n a l
any
upon t h e
proceeding
i n
chancery
o r as an i n c i d e n t
Barber,
has
62
both
U.S.
to divorce
(21 How.)
a statutory
582,
same
on
the
limits
that
judicial
807
course,
I I I _
statutes^
provide
Court."
Of
Merrell
(1986).
Dow
federal
this
type
created
the
federal
in
law and
over
equity.
III's
grant
equity
encompasses
below,
hear
Inc.
v.
with
focuses
not
power
but
the f u l l
available
i s
constitutional
issues
of
litigation
11
under'
this
478 U.S.
804,
Congress
issue
when
civil-rights
question
cases
domestic
i t
their
cases
i s whether
i n law and
relations.
Judge
need
scope o f
established
over
before
thing.
to
whether
and
on
the lower
'arising
Thompson,
and
of j u r i s d i c t i o n
the
the
and Congress
domestic-relations
courts
The
one
cases
issue
federal-question
Article
explained
of
and i t
pose
i t created
I I I makes
statutory
included
exception
questions
judicial
when
courts
Article
Pharm.,
The
jurisdiction
to
v.
i s not s e l f - e x e c u t i n g , "
that
That
t h e t w o a r e n o t t h e same
power
the lower
power
intended
Barber
component,
of the federal
Congress
courts.
starts
constitutional
issue,
limits
"Article
federal
not
and
etymological
federal
The
statutory
the outer
(1859).
and a c o n s t i t u t i o n a l
c o n c e r n s b o t h where l i t i g a t i o n
The
584
a vinculo."
Granade
As
may
present
starts
only
-
e.g.,
whether
such
the
cases
arise
from
As
statutory
state
U.S.
federal
Supreme
state
courts.
Supreme
has
where
litigation
without
addressing
power
to
Constitution
Court
these
of
court
Court
the federal
I I I contexts,
courts
or
question
under
t h e U.S.
Article
of
the
has s t a t e d
questions
intervene
when
often
those
in
cases
i n analogous
go t o t h e p r o p e r
role
i n our democracy:
In l i m i t i n g t h e j u d i c i a l power t o "Cases"
and
"Controversies,"
Article
I I I of the
Constitution
restricts
i t
to
the
traditional
role
of
Anglo-American
courts,
which i s t o redress
or prevent
actual or imminently threatened i n j u r y to
persons
caused
by
private
or
official
v i o l a t i o n o f l a w . E x c e p t when n e c e s s a r y
in the execution of that function,
courts
have
no
charter
to review
and
revise
legislative
and e x e c u t i v e
action.
This
limitation
" i s founded i n concern
about
the p r o p e r - and p r o p e r l y
limited - role
of the courts i n a democratic s o c i e t y . "
Summers
v.
(quoting
Mt.
of
as
to
here
Educ.
to
the
492-93
498
v.
existence
that
whether
(2009)
(1975));
Doyle,
inquire
submit
i s that
12
488,
490,
obliged
respectfully
question
U.S.
U.S.
Bd.
are
arises
Amici
555
422
Dist.
("we
doubt
the
Inst.,
Seldin,
Sch.
(1977)
jurisdiction").
to
v.
City
278
whenever
answer
Island
Warth
Healthy
274,
Earth
429
sua
cf.
U.S.
sponte
of
federal
the
correct
or
not
the
U.S.
Supreme
state
Court
court -
the
has
jurisdiction
lower
federal
over
an
courts
appeal
lack
from
jurisdiction
here.
1.
Constitutionally,
of
the
the
judicial
power
Supreme C o u r t )
there
is
conveyed
by A r t i c l e
question
to
federal
as
to
the
courts
scope
(including
I I I , 2:
The
judicial
power s h a l l
extend to a l l
c a s e s , in law
and
equity,
arising
under
t h i s C o n s t i t u t i o n , the laws of the U n i t e d
S t a t e s , a n d t r e a t i e s made, o r w h i c h
shall
b e made, u n d e r t h e i r
authority;
to a l l
cases a f f e c t i n g ambassadors, other p u b l i c
ministers
and
c o n s u l s ; to a l l cases
of
admiralty
and m a r i t i m e
jurisdiction;
to
c o n t r o v e r s i e s to which the U n i t e d States
shall
be
a
party;
to
controversies
b e t w e e n two
o r more
states;
between
a
state
and
citizens
of
another
state;
between
citizens
of
different
states;
between
citizens
of
the
same
state
c l a i m i n g lands under grants of d i f f e r e n t
states,
and
between
a
state,
or
the
citizens
thereof,
and
foreign
states,
c i t i z e n s or subjects.
U.S.
CONST.
lies
in
did
not
ratified
heard
art.
the
term
include
the
before
I I I , 2
of
(emphasis
art
"cases
law
Court
of
Specifically,
King's
13
Bench
The
and
marriage-related issues
Constitution.
the
in
added).
equity,"
when
cases
or
uncertainty
the
at
the
which
states
law
Court
were
of
Common
Pleas,
Court
of
and
Exchequer
Ecclesiastical
like
the
the
cases
or
[was]
for
the
of
the
rights
(1878);
trial
of
125
U.S.
the
Court
206
need
not
statutory
question
decide
issue
least
limited
to
actions
conclusively
changes
language
v.
at
only
most
and
offences
98
cf.
i t in deciding
resolves
separation
the
Amici
cases
civil[,]
U.S.,
5 97;
Although
likely
initially,
jurisdiction
to
U.S.
1787,
raise
against
145,
Maynard
the
the
appropriate
U.S.
this
of
v.
this
case
165
Hill,
issue,
because
jurisdictional
The Domestic-Relations E x c e p t i o n to F e d e r a l
J u r i s d i c t i o n Denies the Lower F e d e r a l Courts
J u r i s d i c t i o n over Marriage Cases
provide
text
causes
the
presented.
2.
At
(1888).
the
be
Reynolds
In
"upon t h e
from
matrimonial
before
marriage-related
Granade:
to
heard
Chancery.
hear
supposed
62
were
of
courts
Barber,
190,
Court
Judge
marriage."
accord
equity
could
ecclesiastical
ecclesiastical
the
the
Courts
ones b e f o r e
in
did
not
to
at
a l l relevant
the
lower
law
intend
or
the
confer
a d d i t i o n a l powers
of
or
law
in
the
policy
revision
in
are
to
1948
not
be
unless
14
acts
federal
equity,
Congress
courts
and
already
intent
to
were
Congress
modernization
presumed
an
of
of
that
conferred:
from
to
"no
changes
make
of
such
changes
is
Transmirra
clearly
Products
Congress
meant
Corp.,
by
marriage-related
subsequently
includes
expressed."
353
"cases
cases,
finds
that
Fourco
U.S.
in
Glass
222,
law
even
i f
that
same
227
and
the
Co.
(1957).
equity"
U.S.
in
What
excluded
Supreme
phrase
v.
Court
Article
III
them:
Whatever
Article
I I I may
or
may
not
p e r m i t , we t h u s a c c e p t t h e Barber
dictum
as
a
correct
interpretation
of
the
Congressional grant.
Ankenbrandt
Court
v.
i n Ankenbrandt
relations
divorce,
torts
Richards,
such
as
distinction
no
reason
to
or
supports
to
jurisdiction
Id.
at
exception
torts
in
689,
700
narrowing
"involving
of
the
decree,"
704.
f a r as
As
the
(an
right
issue
contrast
a t law and
in
the
The
domestic-
but
of
not
i t goes,
to marriage
that
to
(1992).
issuance
custody
including
decide),
over
cases
child
fraud.
domestic-relations
U.S.
suggests
exception
alimony,
504
Ankenbrandt
recognized
in
a
to
that
the
had
federal
equity.
See
also
Nat'l
Ass'n
of Home Builders
v. Defenders
of
W i l d l i f e , 551 U.S.
644, 662
(2007) ( r e p e a l s by
implication
disfavored);
Chem.
Mfrs.
Ass'n
v.
Natural
Res.
Def.
Council,
Inc.,
470
U.S.
116,
128
(1985)
("absent
an
expression of l e g i s l a t i v e w i l l ,
we a r e r e l u c t a n t t o
infer
a n i n t e n t t o amend t h e A c t s o a s t o i g n o r e t h e t h r u s t o f a n
important decision").
2
15
Under
the
limitations
require
state
on
marriage
forum
insofar
as
state
Haywood
v.
The
under
345,
the
d i d not
Pharm.,
suit
could
recognized
(1921),
of
logic."
have
478
U.S.
bring
these
of
735
i n New
does
sometimes
807.
As
a l l relief,
federal
claims
in
jurisdiction.
currently
York
Until
general
(2009).
a l l
claim
to
denying
deny
concurrent
practicing
jurisdiction
not
make
Trust
Co.
"a
page
1875,
the
federal-question
at
have
Importantly,
federal-question
federal
challenges
which
not
that
jurisdiction
their
courts,
virtually
appears
courts'
would
729,
i t
begin
doctrine
that
349
to
issues.
556 U.S.
that
volume
federal
state
this
f o r any
Holmes
U.S.
courts
for
assume
Justice
in
these
Drown,
available
worth
laws
fact
lawyers
lower
plaintiffs
court
analysis,
plaintiffs
over
federal
Dow
the
same-sex
jurisdiction
256
foregoing
of
i t so.
v.
As
Eisner,
history i s
lower
jurisdiction.
that
is
historical
federal
Merrell
example
Indeed,
until
1980,
federal-question
jurisdiction
i t s e l f h a d an a m o u n t - i n - c o n t r o v e r s y r e q u i r e m e n t t h a t
likely
would
have
precluded
suits
over
marriage
rights
under
1 3 3 1 . See
Califano
v. Sanders,
430 U.S.
9 9 , 105
(1977)
(citing
Pub.
L.
No.
94-574,
90
Stat.
2721
(1976))
( e l i m i n a t i n g amount-in-controversy minima f o r s u i t s
against
f e d e r a l a g e n c i e s a n d o f f i c e r s ) ; P u b . L. No. 9 6 - 4 8 6 , 2 ( a ) ,
94 S t a t . 2 3 6 9 ( 1 9 8 0 ) (same f o r o t h e r
suits).
16
shows,
unexamined
define
the
assumptions
bounds
jurisdiction.
As
of
the
creatures
have
only
need
of
cannot
of
the jurisdiction
a n d do
lower
the
Congress
limits
accurately
federal
statute,
that
not
lower
gave
- whatever
courts'
courts
them,
which
t h e y may b e -
t h e j u d i c i a l power under A r t i c l e I I I .
By
right
way
of background,
of action
conflicting
U.S.C.
First,
what
now
Perez
v.
are
42
adopted
jurisdiction
indicated,
1948,
28
Fourco
Builders,
1331.
Glass,
Id.
to "suits
5 5 1 U.S.
U.S.
to
Stat.
Stat.
470,
at
the
to "civil
227;
a t 6 6 2 ; Chem.
17
lower
Nat'l
Mfrs.
provided
Id.
provided
however,
I I I by e x t e n d i n g
at law or i n equity."
on
42
(1971).
1343.
statutes,
of Article
sovereign
13,
U.S.C.
In both
paths,
106-07
1343, d i d n o t expand
conferred
353
82,
28
of the phrase
1331,
jurisdiction
and
A c t o f 1 8 7 5 , 18
the revision
U.S.C.
1983
the phrasing
only
U.S.
statutory
law against
exception
A c t o f 1 8 7 1 , 17
U.S.C.
now i s 28 U.S.C.
401
two a l t e r n a t e
Young
Ledesma,
Rights
without
to enforce federal
a n d t h e Ex parte
the Judiciary
Congress
the
seeks
the C i v i l
Second,
what
state
1983
immunity.
who
a plaintiff
As
actions" i n
t h e scope
federal
Ass'n
Ass'n,
Id.
of
courts.
of
Home
470 U.S.
at
128.
At
the
seriously
very
undermines
Finally,
to
expand
one
1331
might
ignore
same-sex
and
establishes
the
states
Ports
amend.
from
court,
i n the
only
to
to
take
lower
federal
ensure
that
lower-federal
lack
also
court
with
to
(at
Baker
with
least)
to
the
state-federal
455,
458-59
their
Comm'n
743,
retained
v.
South
751-52
precludes
marriage-rights
basis
(2002);
same-sex
suits
has
precluded
for
this
exclusive
Probate
that
impose.
v.
justice
courts
dual
nothing
ample
judgments
to
that
in
such
courts.
retain
Alabama's
jurisdiction
consistent
is
jurisdiction
U.S.
U.S.
their
Congress
but
535
Congress
Constitution
Maritime
Certainly
and
of
The
493
entered
Fed'l
there
of
Levitt,
initiating
Accordingly,
claims.
Auth.,
X.
failure
perceived
structure
intact."
CONST.
couples
federal
v.
State
the
civil-rights
of
exception
jurisdiction.
a mere o v e r s i g h t
interest
Tafflin
"sovereignty
suits
the
and
been
federal
which
Carolina
assume t h a t
1343 h a s
sovereignty,
state
cannot
in
domestic-relations
Judge Granade's
couples'
(1990),
the
federal-question
under
U.S.
least,
Nelson,
18
jurisdiction
Judges
the
Those
409
Court
do
lower
not
federal
actions
U.S.
submit
810
not
here
to
courts
would
(1972),
be
the
U.S.
Supreme
which
Court's
found
that
prior
not
review
to
of
present
same-sex
marriage,
substantial
federal
question.
3.
Even
to
i f t h e U.S.
include
would
federal
not
question
answer
of
from
not
a state
state
Amendment.
241
at
over
the
statutory
the
U.S.
Article
interprets
marriage
rights,
question.
Supreme
an
the
would
have
appeal
f o r a writ
of
Compare,
Wheat.)
court
7 3 8 , 819
807. Moreover,
Supreme
on
III's
e.g.,
US 2 5 7 , 2 5 9 - 6 0
from
certiorari
judgment.
t h e U.S.
Article
that
Indeed,
Court
I I I t o hear
a petition
Article I I I
scope.
authority
await
court
foreclose
from
(9
under
c o u r t must
The
Court
whether
jurisdiction
state
Supreme
the
scope
Osborn
(1824)
(1916);
other
Court's
scope
hearing
of
i s more
v.
Bank
with
Am.
cf. Merrell
of
the
Well
Dow
rights
case
does n o t .
19
even
appeal
1331's
U.S.,
Works
22
v.
Pharm.,
i f a pure
may
Fourteenth
than
m a r r i a g e - r e l a t e d cases
within
an
the
broad
here
U.S.
Layne,
478 U.S.
would
fall
marriage-
For
arose
from
court,
78
example,
a criminal
Loving
v.
(Va. 1966),
reached
( Windsor),
Windsor
d i d not
another
vis-a-vis
States.
or
Windsor,
Court
action
from
cases,
from
the suit
the right
respondent
soon -
will
question
was
(1967),
a state
supreme
the
federal
S.E.2d
laws
i n equity
( Loving)
Loving
and
t h e U.S.
districtU.S.C.
that
that
(2013),
28
t o marry,
Virginia
reach
that
under
and t h e p e t i t i o n e r
seek
U.S.
133 S . C t . 2 6 7 5
brought
Accordingly, i t i s likely
even
merits
appealed
jurisdiction's
the
388
2 0 6 V a . 9 2 4 , 9 2 5 , 147
v.
Supreme
In both
law
under
Virginia,
action
a n d U.S.
tax-refund
1346(a)(1).
v.
Commonwealth,
t h e U.S.
court
or
Loving
and
plaintiff
having
married
implicated
rights
defendant
United
case
Supreme
Searcy-Strawser
eventually
Court
on t h e
plaintiffs
ask
Judge Granade t o d e c i d e .
Another
upon
group
of
U.S.
Supreme
domestic-relations issues
court
systems
under
for
or against -
III
jurisdiction
Palmore
v.
"judgment
Sidoti,
of a
28
U.S.C.
Court
on d i r e c t
1257,
decisions
review
with
no
from
the
466 U.S.
state
court
Constitution.
4 2 9 , 430
divesting
20
(1984),
a
state
discussion
domestic-relations exception to
under
touch
For
Article
example,
reviewed
natural
mother
the
of
the
custody
to
a person
Gerald
of a
D.,
Appeal);
491
Troxel
Court
of
S.Ct.
2552
of
of her infant
different
U.S.
v.
(2013)
decisions,
discuss
jurisdiction,
proves
also
Michael
(California
57
(2000)
Couple
v.
Baby
Adoptive
Court
t h e U.S.
of her remarriage
5 3 0 U.S.
o f South
Supreme
domestic-relations
which
See
(1989)
Granville,
(Supreme
because
race."
110
Washington);
these
child
of
(Supreme
Girl,
simply
on
v.
Court
Carolina).
Court
limit
H.
133
Ina l l
d i dnot
Article
I I I
nothing.
The
short
of the matter
i s that the
jurisdictional
c h a r a c t e r o f t h e elements
of
t h e c a u s e o f a c t i o n i n [Gwaltney
of
Smithfield,
Ltd.
v.
Chesapeake
Bay
Found.,
Inc., 484 U.S. 49 ( 1 9 8 7 ) ] made n o
substantive
difference
had
been
a s s u m e d b y t h e p a r t i e s , a n d was a s s u m e d
w i t h o u t d i s c u s s i o n b y t h e C o u r t . We h a v e
often
said that
drive-by
jurisdictional
rulings
of
this
sort
_
have
no
precedential effect.
Steel
Co.
(1998).
v.
As
Citizens
such,
for
these
domestic-relations
a Better
merits
Env't,
5 2 3 U.S.
decisions
exception to Article
do
III
not
8 3 , 91
rebut
jurisdiction.
C.
The
Probate
limits
on
their
Judges
lawful
cannot
authority
21
avoid
merely
state
law
because
and i t s
federal
judge
orders
final
judgment
Judge
Granade's
Probate
the
t h e m t o do s o . E v e n
Judges
federal
laws.
As
cannot
matter
merely
of
applies
Alabama's
sovereignty.
federal
proceeding
Bailey,
jurisdiction
judgment.
The
areas.
the
resisting
Bailey
As
exception
rule
relevant
to
the
action
22
against
U.S.
in a
judgment.
to
on
by
of
Under
i s not
the
in
first
attacking
but also
immunity
collateral
later
jurisdiction
clear exceptions
sovereign
137,
challenge
generally
collaterally
here,
bar
King
suit
enforcement
has not o n l y
Judge
l a w by
attack
judgment's
on
that
Alabama
opportunity
the
law,
557
court's
federal
marriage
of j u r i s d i c t i o n
to collateral
the f i r s t
to
Bailey,
assertions
had
i n the f i r s t
action
v.
the
challenging
federal
friendly
the federal
who
jurisdiction
unsettled
outright
enforce
to challenge
second
court's
many
and
circumvent
a
reflects
Alabama's
emphatically
to
that the
marriage,
without
over
Co.
a r e n o t open
party
same-sex
state
of
Indem.
(2009),
to
a
entitled
protection
Travelers
court
on
acquiesce
more
attempt
the
& n.6
both
even
invoking
152-53
views
arguendo
litigation
jurisdiction
h i s transparent
Under
Searcy-Strawser
current
court's
proscription
and
i n the
assuming
i s an
challenges,
id.,
and
several p o t e n t i a l exceptions
remain
undecided:
(1) The s u b j e c t m a t t e r o f t h e a c t i o n
was
so
plainly
beyond
the
court's
jurisdiction
that
i t s entertaining
the
a c t i o n was a m a n i f e s t a b u s e o f a u t h o r i t y ;
or
(2)
Allowing
the
judgment
to
stand
would
substantially
infringe
the
a u t h o r i t y of another t r i b u n a l
or
agency
of government; or
(3)
The
judgment
was
r e n d e r e d by a c o u r t l a c k i n g c a p a b i l i t y t o
make an a d e q u a t e l y
informed
determination
of
a
question
concerning
its
own
jurisdiction
and
as
a
matter
of
procedural f a i r n e s s the p a r t y seeking
to
avoid
the
judgment
should
have
opportunity
belatedly
to
attack
the
court's subject matter j u r i s d i c t i o n .
Id.
(citing
Restatement
quotations
cases
violate
cannot
each
omitted).
bind
of
(Second)
As
Alabama's
Alabama.
In
apply
here,
particularly
court
decide
"would
this
has
Court
U.S.
so
exclusive
substantially
Legislature
the
issue
but
also
or
in deciding
Supreme
the
the
how
Court
an
to
go
invents
marriage.
23
issue
over
i n the
right
to
which
plainly
not
Alabama
forward
a
federal
authority
of
submit
could
the
a u t h o r i t y " of
People
therefore
i n Bailey
Having
near-exclusive
infringe
of
quoted
to
and
respectfully
second.
central
interior
Searcy-Strawser
immunity
exceptions
the
12,
the
a d d i t i o n , Amici
Restatement's
Alabama
indicated,
sovereign
the
an
Judgments
only
and
event
of
their
that
same-sex
Quite
her
simply,
terms,
States
i f Alabama
neither
can
cannot
federal
compel Alabama t o
regulate
court
nor
even
regulate marriage
Mathews,
465
original,
interior
quotations
therefore,
redress
violations
by
do
v.
not
not)
exit
argue
that
foreclose
judgment
within
the
collateral
that
the
traditional
Judge
exiting
argue
U.S.
740
the
i f the
husband-wife
field
government
U.S.
Alabama's
legitimate
"substantially
Restatement's
meaning
Court
alone.
as
Amici
should
invalidates
merely
venturing
the
[Alabama's]
and,
(or
Amici
By
choices,
infringe
could,
altogether.
Rather,
d e c i s i o n i s Alabama's
in
constitutional
should
Supreme
marriage.
(emphasis
Alabama
perceived
marriage
United
equal
is a
that
of
well
the
(1984)
omitted).
Granade's
Alabama's
field
the
728,
the
on
at a l l :
when t h e r i g h t i n v o k e d
i s that to
treatment,
the
appropriate
remedy
mandate
of equal treatment,
a result
can
be
accomplished
by
withdrawal
b e n e f i t s f r o m t h e f a v o r e d c l a s s as
as
by
extension
of
benefits
to
excluded
class.
Heckler
marriage
such,
to
federal
authority"
is
open
to
challenge.
Finally,
Judge
Court
by
invoking
raise
questions
King's
the
about
actions
jurisdiction
his
conduct,
24
to
of
seek
the
separate
to
evade
federal
and
apart
this
court
from
the
merits
course,
Judge
sovereign
County
poses
King
Comm'n,
a
393,
396
q u e s t i o n of
not
Angeles,
331
interior
quotations
that,
means
legislature
of
could
549,
Co.
respectfully
"prejudicial
meaning
of
v.
to
"It
friendly
suit,
Rule
of
Wellman,
the
568-69
omitted).
transfer
submit
Municipal
that
to
the
the
143
339,
Judge
and
does
25
federal
courts
of
not
of
City
of
(citations
was
an
the
and
thought
beaten
in
inquiry
act."
344-45
King's
issues
non-adversary
party
courts
administration
8.4(d)
waive
federal
(1947)
legislative
U.S.
to
the
Court
never
U.S.
office.
friendly,
v.
419
"constitutional
in
Army
constitutionality
Ry.
U.S.
King's
decide
Iowa,
such,
which
authority
defendants
jurisdictional,
not
Rescue
court's
v.
l a w ) . As
over Judge
legislation
proceedings[.]"
state
state
strictly
should
of
Montgomery
( A l a . 2008),
Sosna
Of
Alabama's
v.
federal
cf.
(ability
jurisdiction
i f
affecting
G.T.
Id.;
Judges.
waive
Corr.
191-92
to the
office.
Probate
to
of
189,
bar
is a
prudentially
the
3d
(1975)
lacks
by
Dep't
n.2
Even
Los
So.
other
authority
Ala.
11
King's
the
lacks
jurisdictional
Judge
immunity
vis-a-vis
immunity,
over
court
here
as
Chicago
(1892).
within
constitute
to
&
Amici
circumvention
justice"
the
is
the
"good
faith
effort
application
III.
t o determine
the validity,
of the law"within
scope,
t h e meaning
meaning
o f Rule
or
1.2(d).
court
jurisdiction
Bradley,
Nelson
t o ensure
Vasquez
v.
Harris,
Legislature
full
So.
Kimberly-Clark
2000).
Here,
exclusive,
2d
submit
that
First
86
retain
Bank
v.
court
( A l a . 1957);
So.
jurisdiction.
this
Court's
has
jurisdiction.
2d
this
accord
where t h e
jurisdiction
to retain
779
Inc., 2 6 7
(1992) . O n l y
retaining
courts
Nat'l
of Birmingham,
1000
precludes
continuing
respectfully
78,
Corp.,
nothing
i t can
134 S o . 6 2 1 , 622 ( A l a . 1 9 3 1 ) ;
5 0 3 U.S.
to allow
relief,
remedy.
Shop
has p r e c l u d e d
refused
parte
Co. v. Darling
3 0 1 , 3 1 1 , 101
Court
equitable
Ala.
grants
178,
182
Court's
this
Ex
(Ala.
retaining
Indeed,
supervisory
Amici
authority
compelsi t .
CONCLUSION
This
by
Court
Alabama
over
the
litigation
should issue
and r e t a i n
case
pending
related
the writ
exclusive,
the
continuing
resolution
t o the lawfulness
26
o f mandamus r e q u e s t e d
of
jurisdiction
a l l pending
o f Alabama's
marriage
laws.
Dated:
F e b r u a r y 17, 2015
Respectfully
submitted,
27
CERTIFICATE OF
I
I
hereby
certify
electronically
with
Court
send
filed
t h e accompanying
o f Alabama
notification
that
SERVICE
on t h e 1 7 t h d a y o f F e b r u a r y 2 0 1 5 ,
using
with
t h e ACIS
of such
the Clerk
filing
filing
i n conjunction
o f t h e Supreme
system,
which
will
to the following:
H o n . R o b e r t M. M a r t i n
Judge of Probate
C h i l t o n County
500 2 n d A v e n u e N o r t h
C l a n t o n , AL 35045
probate@chiltoncounty.org
M a t h e w D. S t a v e r
H o r a t i o G. M i h e t
R o g e r K. G a n n a m
L i b e r t y Counsel
P.O. BOX 54 077 4
O r l a n d o , FL 32854-0774
court@LC.org
H o n . Tommy R a g l a n d
Judge of Probate
Madison
County
100 N o r t h S i d e S q u a r e ,
Room 1 0 1
H u n t s v i l l e , AL 35801
phanson@co.madison.al.us
A. E r i c J o h n s t o n
S u i t e 107
1200 C o r p o r a t e D r i v e
B i r m i n g h a m , AL 35242
eric@aericjohnston.com
Samuel J . McLure
The A d o p t i o n Law F i r m
PO B o x 2 3 9 6
Montgomery, AL 36102
sam@theadoptionfirm.com
H o n . S t e v e n L. R e e d
Judge of Probate
Montgomery County
Montgomery C t y Courthouse
Annex I , T h i r d F l o o r
100 S o u t h L a w r e n c e S t r e e t
M o n t g o m e r y , AL 36104
probate@mc-ala.org
Luther Strange
Alabama A t t o r n e y G e n e r a l
501 W a s h i n g t o n A v e n u e
Montgomery, AL 36130-0152
smclure@ago.state.al.us
J . R i c h a r d Cohen
David
Dinielli
S o u t h e r n P o v e r t y Law C e n t e r
400 W a s h i n g t o n A v e n u e
M o n t g o m e r y , AL 36104
richard.cohen@splcenter.org
david.dinielli@splcenter.or
R a n d a l l C. M a r s h a l l
ACLU o f A l a . Found.
P.O. B o x 6 1 7 9
Montgomery, AL 36106
rmarshall@aclualabama.org
28
S h a n n o n P. M i n t e r
C h r i s t o p h e r F. S t o l l
Nat'l C t r f o r Lesbian
Rights
870 M a r k e t S t . , S t e . 370
S a n F r a n c i s c o , CA 9 4 1 0 2
SMinter@nclrights.org
CStoll@nclrights.org
Ayesha Khan
Am. U n i t e d f o r S e p a r a t i o n
of Church & State
1301 K S t r e e t ,
N.W.
W a s h i n g t o n , D.C. 2 0 0 0 5
khan@au.org
H o n . A l a n L. K i n g
Judge of Probate
J e f f e r s o n County
716 N. R i c h a r d A r r i n g t o n J r . B l v d .
B i r m i n g h a m , AL 35203
kinga@jccal.org
February
17, 2015
Respectfully
submitted,
29
v. Nelson,
No. 7 1 - 1 0 2 7
J u r i s d i c t i o n a l Statement
(U.S.),
( O c t . Term 1972)
A1
F I F. "
11
V I -
-3
i-iLE
1 0 2
COPY
,N T H E
Opinions Below
Juriadiotion
E J C U A E D J O H N BAKIJH, et
WOE
JtmiSDicxiONAL STAI-BMBT
INDEX
,.
Statutes Involved
.,,
Questions Presejited
al.,
A'p'pellants,
.,
V.
{JERALD l i .
Niii.sos,
JURISDICTIONAL S T A T E M E N T
refusal
to legitimate
11
appellants'
Fourteenth Amendments
CONCLUSION
18
19
APPENDIX
Statutes Involved
Chapter 517, Minnesota Statutes
Alternative Writ of Mandamus
la
10a
iii
ii
rum
Order Quashing tlie Writ
Constitutional Provisions:
United Stales Constitution
14*
First Amendnient
5,(>
Eighth Amendment
5,6
Ninth Amendment
TABLK OF A U T K O W T I E S
Fourteenth Amendment
Cases:
Bates V, City of Little Koek, m
U . S . 6IG (1960)
II
Boddie v, Connectieiit, 401 U.S. 371 (ia7l)
11,12,13,19
Cohen v. California, 403 U.S., 15 (l'J71)
14
3,5,6,18,19
3, 5,6,11,13, t7,18,19
Rule:
Minn. Jl. Civ. P. 52.01
Federal Statutei
28 U.S.C. -^1257(2)
14,18,19
Jones V. Hullihan, W-152..70 (Ct. Apps, Ky. 1971)
Loving V, Virginia, ;J88 IJ.S, L (1007)
11,12,13,
10
11,12,13,14.
15,16, Itt, 19
dlaie Statute:
Minnesota Statutes
Chapter 517
,.,
2,4,r>,i3
Other Autlwritias:
Abrahamsen, Criirse and the Human Mind 1.17 (1944)
Churchill, nomosexual
(1969)
13,16,
17,18
17
16
14
11,12,13
14
1969 .-..,,
(1947)
57
,.
7
10
iv
IN T H E
OCTOBER T S R M ,
1972
No
RiCKAjiii J O H N B A K E E , et
al.,
Appellants,
GBBALD R. NELSON,
Appellee.
JUKISDICTIONAL S T A T E M E N T
Appellants appeal from the judgment of the Supreme
Court of Minnesota, entered on October 15, 1971, and submit this Statement to show that the Supreme Court of the
United States has jurisdiction of the ajJiieal and that a substantial (juestion is presented.
Opintoiia Below
The opinion of the Supreme Court of Minnesota is reported at 191 N.W.2d
185,
2
Jurisdiction
Tills suit originated through an alternativo writ of raanlamus to compel appellee to issue the marriage licenae to
ippellaiits. The writ uf inandaitnis was quashed by th
Hennepin County District Court on January 8, 1"J71. On
ippeal, the judgment of the Supreme Court of Minnesota
iflinaing the action of the District Court was entered on
Jctober 15, 1971. Notice of Appeal to the Supreme Court
if the United States was lUud m the Supreme Court of
ilinnesota on January 10, 1972. TJie time in -wliicli to file
his Jurisdictional Slatcineiit was extended on January 12,
972, by order of Justice Blackmun.
>
QuestioMS Preeuted
1. Whether appellee's refvisal to sanctify appellants'
marriage deprives appellants of their liberty to marry
and of tlieir pro^mrty without due process of law under the Fourteenth Amendment.
2. Whether appellee's refusal, pursuant to Minnesota
marriage statutes, to sanctify appellants' marriage
because both are of the male sex violates tiieir rights
under tlie aqua] protection clause of the Fourteenth
Amendment.
3. Whether appellee's refusal to sanctify appellants'
marriage deprives appellants of their riglit to privacy under the Ninth and Fourteenth Amendments.
Statement of the Case'
Appellants Baker and McConnell, two persons of the
male sex, applied for a marriage licenae on May 18, i970
(T, 9; A . 2, 4) at tjia office of the appellee Clerk of District Conrt of Hennepin County' (T. 10).
' T. refers to the trial traiiiieruif A. refers to the Apjicndis to
appelJanta' brief bp.fore tlse Miuiiesotu Supreme Court.
'Appellant McConncU is also jietitioner before this Court ia
McConmll v. Andtmon, petit, for oert. flld, No, 71-S7H In whitih
be Seeks review of the decision of tJie United Stateg Court of Ajipeftls
/or the Biirhth Circuit, allowing: the Board of Ilegenta of the University of Minnesota to refuse him employmait as head of the
catalogue division of the St. I'liu! Campus Library on the grounds
that "Ills perscital eonduoi;, an repre*rei>t,cij n> Die pnblio ar.d Univer.sity news media, is not consistent with the beat interest of the
University "
The efforts of oppellaiits to Ret married evidently pereipitated
the Begenta' decision not Ifl employ Mr, MtConnell.
5
Upon advice of Uic oflice of tlie Hennepin County At.
torney, appellee aceejjted aj>pellaiits' application and thereupon requested a fonnai opinion of the County Attorney
(A. 7-8) to deterinmo whether the marriage license shoold
be issued. In a letter dated May 22,1970, appellee Nelson
notified appellant Baker he was "unable to issae tlie mwriage license" because "sullicient legal impediment lia
thereto prohibiting!; the nsarriage of two male personn"
(A, 1; T. 11). However, neither'appellant has ever bwn
informed that he is Individually incompetent to marry,
and no specific reason has ever been given for not issuing
the license.
Minnesota Statutes, section 517.08 states that onlj/ the
following information will be elicited concerning a marriage license: name, residence, date and place of birth,
race, termination of previous marriage, signature of applicant and date sijjned. Although they were asked orally
at the time of application which was to be the bride and
which was to be the groom (Tv J!>; T. 18), the forma for
application for a manlnjDce lieenseVlid not inquire as to the
aex of the applicants.' However, appellants readily concede
that both ate of the male sex.
Subsequent to the denial of a license, appellants consulted
with legal counsel. On Uecember 10, 1970, appellants applied to the District Coui^t of iHennepin County for an
alternative writ of inand&Tnus (A. 2 ) , and such a writ WM
timely served uppn appellee. Appellee Nelson continud
to refuse to issue the appellants 'a marriage license. Instead, he elected to appear iri. court, show cause why he
had not done as commanded, and make his return to the
writ (A. 4),
7
How
Appellants contundeti tlujt if Minnesota fjtatutes, Chaptei' 5i7, were eonstrned so as to not allow two persons of
the same sex to inai'ry, tlsen the Statutes were in violation
of the First, Fjighth, Nintli, and Fourteentli AniendmenU
to the United States Constitution in tlieir Alternative Writ
of Mandamus (App. t./fct, pp. lOu-lia), at the heannK
before the Hennepui Corinty Uistrict Court on January 8,
3971 (App. infra, p. !2a), and to the Supreme Court of
Minnesota (App.-infj-a, p. t8u)- These constilutioua! claiiiu
were expressly considered and rejected by both court*
below.
neither the question nor the proposed rektionship is bilarre. Indeed, that first impulse provides us with some
measure of the continuing impact on our society of prejudice against non-heterosexuals. And, as illununatod witliin
the context of tlus casu, tlus prejudicu has stjvere conse-
quences.
The relationships contemplated is neither grotesque nor
uncommon. In fact, it lias been established that homoaexuality is widespread in our society (as weli as all other
societies), lleliablc studies have indicated that a signlficant percentage of the total adult population of the United
States have engaged in overt homosexual practices. Numerous single sex marital relationships exist de facto. See,
e.g., A . KiJisiOY, SEXUAIJ BEHAVSOR IN T H E H U M A N
The
MALU
Miireover,
8
9
Only then will the iuihlic jjeieeive that homosexuald an
not freaks or uui'ortnnate abherations, to lie swept under
the carpet or to be reserved for anxious pliantasies aboul
one's identity or child rearing technmuos.
A vast literature reveals several fiypotheses to explain
the deep prejudice against Itomosexuals, One auiiiority
maintained that iiostility to Ui.iinosexLial conduct was orsRinally an "aspect of economics," in that it reihscted the ore.
nomic importance of large family groupings in pastoral
and agricultural societies. K. VV^estRnnarck, 2 Origin and
Development of tiie Moral Idea 484 (1926). A second
theory suggests thai homosexuality was originally forbid,
don by the "early Hebrews" as part of efforts to "surround
the appetitive drives with jirohibitions." W, Churchill,
Homosexual i^ehavior Among Males IS) (19fi9). Under this
theory, opposition to hiimosexuaUty Was closly related to
religious imperativesi iii paiticular the need to establish
moral superiority over p a g a n sects. Id., at 17; see also
W. James, The Varieties of ileligious Experience, lectures
XT, X I I , X I I I (1902).
Whatever the approjiriate explanation of its origins, pay.
chiatrists and sociologiBts aie more nearly agreed on the
reasons for the iiergis^tence of the hostility. It is one of
tliose "ludicrous and haiiiiful" prohibitions by wliidi virtually all sexual matters are stiH .reckoned "socially taboo,
illegal, pathological, or highly controversial." W . Churchill,
supra, at 26. It continues, as it may have begun, quite without regard to the actual characterjstics of homosexuality.
It is nourished, as are the various other sexual taboos, by
an amalgam of fear and ignorance. Id., at 20-35. It is supported by a popular cdncejition of the causes and characteristicB of homosexuality that is no'more deserving of our
reliance than the Emperor Justinian's belief that homo-
10
11
I.
Respondent's refusal lo sanctify appellants' marriage
deprives appellants of liberty and property in violation
of the due process and equal protection clauses.
The right to marry is itself a fundamental interest, fully
protected by the due process and equal protection clauses
of the Fourteenth Amendment. See Boddie v. Comtecticut,
m U.S. 371 (ly?]); Lovinci v, Virginia, 38 U.S, 1 (1907);
Griswotd v. Cmimcticui, 381 U.S. 479 (1905); Skinner v.
Oklahoma, 3l(i U.S. 535 (m'2); Meyer v. Nebraska, 2fi2
U.S, 535 (1923). In addition, significant property interests,
also protected by the due process clause, flow from the
legally ratified marital relationship. In hhs testimony at
the trial, the appellant Baiter enumerated six sucli interests which he cannot enjoy because of the State's refusal to recognise his marriage to the appellant McConnell;
1. The ability to inherit from one another by intestate
succession.
2. The availability of legal redress for the wrongful
death of a partner to a marriage.
3. The ability to sue under heaitbaim statutes wiiore
ia effect.
4. Legal (and consequently community) recognition for
tlieir relationship,
5. Property benefits stich. as tlie ability to own property
by tenancy-by-the-ontirety in states where permitted.
6. Tax benefits under both Minnesota and federal stat-
' See, g,, Jones v. Iimkan, 'W-152-70. (Ot. Apps Ky. 137]).
12
13
and
can
Some stale
sons.
vidious discrimination.
Many govei'nment
Finally, when
The
pp.
15
14
parents.
supra.
Minne-
was whether Virginia's auti-miscegenalion statute, prohibiting marriages between jicrsons of the Caucasian race and
any_ otlicr race was unoonstitulional.
the light of loss drastic means fpr achieving the same basic
16
denied the constitutionality et U K r i i s u r e s wiiich restrict
Ihc riglits ot oitiueiis on uccuunl af race. There can
be no doubt tbal n w t r l c t i n g tlu; freedom to marry
solely because of racial class!(ication.s violates the central meaning of the lOijuiii Protection Cianse. Lovini/
V. Virginia, 388 U.S, at 11-12.
The Minnesota Supreme Court ruled that the Lomitg
decision is inapplicable to the instant case on the ground
that "there ia a clear distinction between u marital restriction based merely upon lace and one .based upon tho fimilaiiiental difference in sex-' (Apj)., tnfia, p. 23a). It is true
that the inherently auajiect test whicii Ihi.s Court apiilied
to classifications based uiion race, (see, e.g., Loving v,
Virginm, supra; McLaughlin v. Florida, supra), has not
yet been extended to classihealiona based upon sex (see
!i,:ed V. Reed, !)2 S. Cl. 251, ,10'ed.2d 225 (11171)), ilowover, this Court has indicated that when a fundamental
rightsuch as marriageis denied to a group by sonsa
classification, the deilial Should be judged by the standard
that places on governmcmt tiie burden of demonstrating
a legitiinate subordinating interest; that is compelling.
Bhnpiro v. Thompson, HD4 U.S. G18.(19G9). Aa we have
already indicated neither a U'gitipiatc nor a subordinating
reason for this classification has been or can be asoribed.
Kvon if we assume that the cla3.siriealion at issue in this
case ia not to be .judged by ttie. iiiore stringent "constitutionally suspect" and ".su!wr;linattnK interest" standards,
the Minnesota classification is infirm.
The discrimination in this case is one of gender, Especially significant in thi.s regard is the Court'.s recent decision in lieed v. iee^,'92 S, Ct. 251, 30 L . ed,2d 225 (1971),
17
which held that an Idaho statute, which provided tliat as
between persons equally qualilied to administer estates
males must be picfciiccl to I'cmales, is vioialive of tbu
equal protecLioii clause of HIK Fourte<uUh Amendment,
There the Court said (30 U ud.2d at 229);
In aiiplying tlsat cianse, tlus Court has consistently
leoogniised that the Fourteenth amcrjilment does not
deny to States tho power to treat ditferent c l a s B a s of
persons in dlffetcnt ways, [Citations omitted,] Tiie
Equal Protection Clause of that Amendment does,
however, deny to States tlie power to legislate that
different treatment lie acuorded to persons placed by
a statute mto different classes on the basis of criteria
wholly unrelated to the objective of that statute, A
classification "must be reasonable, not arbitrary, and
must rest upon some ground of difference iiaviug a
fair and substantial relation to the object of the legislation, 80 that all jiersons similarly circujustanced
shall be treated alike." Royster Guano Co, v. Vtiginut,
253 U.S. 412, 415 (1920).
Childless same aex couples, for example, are "similarly
circumstanced" to eliildlesa heterosexual couples. Thus,
under the Heed and Royster cases, they must be treated
alike.
Even when judged by this less stniigcnt standard, the
Minnesota classification cannot pass constitutional muster.
First, it is difficult to ascertain the objort of the legisiation
construed by the Minnesota courts. Socmid, whatever objects are ascribed for the legislation do uot bear any fair
and substantial rclationaliip to the groim<l upon which tlie
19
18
CONCLUSION
For the reasons set forth above, probable jurlgdicUon
should be noted,
BoBpeetfully submitted,
R. MlOHABTi WEXUKllBEti