3:13-cv-02351 #82

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

Katherine Bradacs and Tracie Goodwin,

Plaintiffs,
v.

Nimrata (Nikki) Randwaha Haley, in
her official capacity as Governor of South
Carolina; Alan M. Wilson, in his official
capacity as Attorney General,

Defendants.
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Civil Action No. 3:13-cv-02351-JMC

PLAINTIFFS RESPONSE TO
DEFENDANTS MOTION FOR JUDGMENT
ON THE PLEADINGS

CONCISE SUMMARY OF THE NATURE OF THE CASE
This case is before this Court on Plaintiffs challenges on federal constitutional grounds
to state constitutional and statutory provisions that prevent their same-sex marriage in the
District of Columbia from being recognized in the State of South Carolina. They are challenging
these provisions under the Equal Protection and Due Process clauses of the Fourteenth
Amendment to the United States Constitution as set forth in Bostic v. Schaefer, 760 F.3d 352
(4th Cir. 2014), certiorari denied Oct. 6, 2014. Plaintiffs further assert South Carolinas
provisions violate the Full Faith and Credit clause of article IV, 1 of the United States
Constitution. Plaintiffs have filed a motion for summary judgment seeking a declaration by this
Court that the state law provisions are invalid for reasons set forth in Bostic. Next, Plaintiffs
contend South Carolinas laws discriminate against them on the basis of their gender. Lastly,
Plaintiffs argue the provisions discriminate against them on the basis of their sexual orientation.
In support of their Motion for Judgment on the Pleadings, the Governor and the Attorney
General assert the following: (A) principles of federalism dictate that this action is improperly
3:13-cv-02351-JMC Date Filed 10/31/14 Entry Number 82 Page 1 of 40
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brought in federal court and should have been brought in state court (indicating the South
Carolina Probate Court); (B) Plaintiffs have sued the wrong parties under the Eleventh
Amendment to the United States Constitution; (C) Plaintiffs lack standing to sue Governor Haley
and Attorney General Wilson because the Defendants lack enforcement authority as to same-sex
marriage bans; (D) opposite sex marriage has a long legal history (and thus, tradition) in South
Carolina; (E) the view of Judge Niemeyers dissent in Bostic, that the Court should apply
rational basis review as opposed to strict scrutiny, is the sounder view over the majority
view in that case; (F) the Full Faith and Credit Clause of the United States Constitution does not
give rise to a basis for relief as asserted by the Plaintiffs; and (G) under Section 2 of the federal
Defense of Marriage Act (DOMA), the State is not required to recognize the Plaintiffs marriage
in the District of Columbia.

CONCISE STATEMENT OF THE PERTINENT FACTS
Plaintiffs have filed a Motion for Summary Judgment which is pending before this Court.
Plaintiffs incorporate the facts set forth in that motion into this Response. Briefly, Plaintiffs
Katherine Bradacs and Tracie Goodwin are both women and are residents of South Carolina. In
2012 they were married in the District of Columbia. They have each sought to have the State of
South Carolina honor the validity of their marriage and permit them to receive all benefits that
come with marriage in this State. They have outlined in their Motion for Summary Judgment the
particular manner in which they have been harmed by the States enforcement of its laws against
same-sex marriage.

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CONCISE STATEMENT OF MATERIAL FACTS IN DISPUTE
As noted below, this Court may deem the Defendants motion to be a motion for
summary judgment. Local Civil Rule 7.05(A)(4), DSC, requires a memorandum in opposition to
a motion for summary judgment to contain a concise statement of the material facts in dispute
together with reference to the location in the record. The material facts in this case, however,
are not truly in dispute. They are presented in detail in Plaintiffs Motion for Summary Judgment
which is pending before this Court. Plaintiffs refer and incorporate that statement of facts here.
What is in dispute, however, is how the law as set forth by the United States Constitution
and cases from the Supreme Court of the United States as well as the Fourth Circuit Court of
Appeals applies to those facts as this Court determines its judgment. In analyzing this case, the
Court must first decide its scope of review of the motion pending before it is this a Motion for
Judgment on the Pleadings, or is it a Motion for Summary Judgment?
The Court will then rule either for the Plaintiffs on their Motion for Summary Judgment
based upon those facts, or will deny that motion and grant the Defendants motion.

STANDARD OF JUDICIAL REVIEW
The Defendants couch their motion in terms of a Motion for Judgment on the
Pleadings. This Court must first decide, however, the standard by which it will judge review of
the Defendants motion.
Motions for judgment on the pleadings are governed by Rule 12(c), which provides
[a]fter the pleadings are closed but early enough not to delay trial a party may move for
judgment on the pleadings. Fed.R.Civ.P. 12(c). However, if on a motion under Rule ... 12(c),
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matters outside the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56. Fed.R.Civ.P. 12(d).
Assuming the Court treats the motion as a Rule 12(c) motion, the Court must apply the
same standard as a motion brought under Rule 12(b)(6). Massey v. Ojaniit, 759 F.3d 343 (4th
Cir. 2014); Occupy Columbia v. Haley, 738 F.3d 107 (4th Cir. 2013). As such, the Court is
obliged to accept as true all well-pleaded allegations and to view the complaint in a light most
favorable to the Plaintiffs. Id. A Rule 12(c) motion tests only the sufficiency of the complaint
and does not resolve the merits of the plaintiffs claims or any dispute of fact. Massey; Occupy
Columbia. The complaint will survive only if it states a plausible claim for relief. Massey, citing
Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed.2d 868 (2009). See also Occupy
Columbia, 738 F.3d at 116 (To survive such a motion, the complaint must contain facts
sufficient to raise a right to relief above the speculative level and state a claim to relief that is
plausible on its face. citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S. Ct.
1955, 167 L. Ed.2d 929 (2007)).
If the Court considers matters outside the pleadings, then the Court must treat the motion
as a motion for summary judgment. Summary judgment is appropriate if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). The Court is required to take the facts in the light most
favorable to the Plaintiffs, who are the non-moving parties. Defenders of Wildlife v. North
Carolina Dept. of Transp., 762 F.3d 374, 392 (4th Cir. 2014) (Court must resolve all factual
disputes and any competing, rational inferences in the light most favorable to the party opposing
that motion). This rule applies even in circumstances like this case that present cross-motions for
summary judgment. Bostic.
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DISCUSSION
The Defendants set forth a number of grounds for this Court to avoid deciding the very
issue at the heart of this dispute: Whether the State of South Carolinas prohibition against same-
sex marriage permits the State to refuse to honor Plaintiffs 2012 marriage in the District of
Columbia. These reasons range from the subtle to the sublime, but at bottom all must fail in light
of federal jurisprudence over the last two years, most notably the Fourth Circuits controlling
decision in Bostic v. Schaefer and the decision by the U.S. Supreme Court not to review Bostic.
Accordingly, this Court should deny the Defendants motion for judgment on the pleadings and
should instead grant Plaintiffs motion for summary judgment that is pending before the Court.

I. Principles of Federalism Do Not Mandate Dismissal of Plaintiffs Case

The Defendants argue that principles of federalism mandate dismissal of Plaintiffs case.
This argument, however, has been specifically considered by other courts and has failed in
countless cases, including in Bostic, which is the controlling law for this Court. See Allegheny
Gen. Hosp. v. NLRB, 608 F.2d 965, 970 (3rd Cir.1979) (A decision by this court, not overruled
by the United States Supreme Court, is a decision of the court of last resort in this federal judicial
circuit.); United States v. Brown, 74 F.Supp.2d 648, 652 (N.D.W.Va.1998) ([A] district court
is bound by the precedent set by its Circuit Court of Appeals, until such precedent is overruled
by the appellate court or the United States Supreme Court.). As recognized by another court in
this district: [T]he doctrine of stare decisis makes a decision on a point of law in one case a
binding precedent in future cases in the same court, and such courts as owe obedience to the
decision, until such time as the effect of the decision is nullified in some fashion: reversed,
vacated, or disapproved by a superior court, overruled by the court that made it, or rendered
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irrelevant by changes in the positive law. Addison v. Piedmont Aviation, Inc., 745 F.Supp. 343,
349 (M.D.N.C.1990) (quoting 1B Moores Federal Practice 0.402[2] at 2527). See also
Alexander v. City of Greensboro, No. 1:09CV934, 2011 WL 13857, at *5 n. 5 (M.D.N.C. Jan.
4, 2011) (this court is bound by directly controlling Fourth Circuit authority); Baldwin v. City
of WinstonSalem, 544 F.Supp. 123, 124 (1982), affd, 710 F.2d 132 (4th Cir.1983), cert. denied
464 U.S. 1012 (1983) (This Court is bound to follow the decision of the Fourth Circuit).
The Bostic Court found in particular that:
Citing Windsor, the Proponents (of same-sex marriage ban) urge us to
view Virginias federalism-based interest in defining marriage as a suitable
justification for the Virginia Marriage Laws. However, Windsor is actually
detrimental to their position. Although the Court emphasized states traditional
authority over marriage, it acknowledged that [s]tate laws defining and
regulating marriage, of course, must respect the constitutional rights of persons.
Id. at 2691 (citing Loving, 388 U.S. 1, 87 S.Ct. 1817); see also id. at 2692 (The
States interest in defining and regulating the marital relation[ ][is] subject to
constitutional guarantees.). Windsor does not teach us that federalism principles
can justify depriving individuals of their constitutional rights; it reiterates
Lovings admonition that the states must exercise their authority without
trampling constitutional guarantees. Virginias federalism-based interest in
defining marriage therefore cannot justify its encroachment on the fundamental
right to marry.

Bostic, 760 F.3d at 378-79.

In Bostic, the Court likens Virginias voter-approved same sex marriage bans to the issue
in W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S. Ct. 1178, 87 L.Ed. 1628 (1943)
which held that voter-approved laws cannot be used to trump citizens constitutional rights:
The very purpose of a Bill of Rights was to withdraw certain subjects from
the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be applied by
the courts. Ones right to life, liberty, and property, to free speech, a free press,
freedom of worship and assembly, and other fundamental rights may not be
submitted to vote; they depend on the outcome of no elections.

Id; see also Romer, 517 U.S. at 623, 116 S.Ct. 1620 (invalidating a voter-approved amendment
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to Colorados constitution); Lucas v. FortyFourth Gen. Assembly of Colo., 377 U.S. 713, 736
37, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964) (A citizens constitutional rights can hardly be
infringed simply because a majority of the people choose that it be.). The Bostic Court added:
Accordingly, neither Virginias federalism-based interest in defining marriage nor
our respect for the democratic process that codified that definition can excuse the
Virginia Marriage Laws infringement of the right to marry.

Bostic, 760 F.3d at 379-380.

Similarly, the Tenth Circuit upheld these precise findings that the principle of
federalism is no defense to trumping the fundamental and constitutional rights delineated
to citizens of the United States:
[A]ll fundamental rights comprised within the term liberty are protected
by the Federal Constitution from invasion by the States. Planned Parenthood v.
Casey, 505 U.S. 833, 84647, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (quotation
omitted). The doctrine of substantive due process extends protections to
fundamental rights in addition to the specific freedoms protected by the Bill of
Rights. Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138
L.Ed.2d 772 (1997); 1819 .There can be little doubt that the right to marry is a
fundamental liberty.Under our Constitution, the freedom to marry or not marry,
a person of another race resides with the individual and cannot be infringed by the
State.

Kitchen v. Herbert, 755 F.3d 1193 at 1208-1208 (10th Cir. 2014). And as the District Court in
Idaho explained:
An individuals protected liberties include certain fundamental rights of
personhood. These rights center on the most significant decisions of a lifetime
whom to marry, whether to have children, and how to raise and educate children.
[Lawrence v. Texas, 539 U.S. 558, 574, 123 S.Ct. 2472 (2003)]. These choices are
protected because they implicate associational rights ... of basic importance in
our society, rights sheltered by the Fourteenth Amendment against the States
unwarranted usurpation, disregard, or disrespect. M.L.B. v. S.L.J., 519 U.S. 102,
116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (quoting Boddie v. Connecticut, 401
U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).

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Latta v. Otter, (D. Idaho May 13, 2014) --- F.Supp.2d ---, 2014 WL 1909999 * 10. See also De
Leon v. Perry, 975 F.Supp.2d 632 (W.D. Texas 2014) (However, any state law involving
marriage or any other protected interest must comply with the United States Constitution. In
United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), the United
States Supreme Court recently held that the federal government cannot refuse to recognize a
valid state-sanctioned same-sex marriage.[T]his Court holds that Texas prohibition on same-
sex marriage conflicts with the United States Constitutions guarantees of equal protection and
due process.).
Based upon the overwhelming majority of decisions on this point, the Defendants
argument that federalism prevents the Plaintiffs from bringing this case holds no water.

II. Plaintiffs Have Not Sued the Wrong Parties

A. The Eleventh Amendment Does Not Bar this Suit

Plaintiffs are not barred by the Eleventh Amendment of the United States Constitution
from bringing this suit, nor have they sued the wrong parties in seeking injunctive relief.
The Eleventh Amendment generally bars a federal lawsuit against a state; however, an
exception to this rule under Ex parte Young, infra, provides that a suit can be brought against
state officials to enjoin enforcement of an unconstitutional state statute. Bostic v. Shaefer 760
F.3d at 371 n. 3 (Pursuant to Ex parte Young, the Eleventh Amendment does not bar a citizen
from suing a state officer to enjoin the enforcement of an unconstitutional law when the officer
has some connection with the enforcement of the act.); Lawson v. Gault, ____F.Supp.2d
_____, 2014 WL 4063159 (D.S.C. 2014) (The Ex parte Young exception to Eleventh
Amendment sovereign immunity allows a federal court to issue prospective, injunctive relief
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against a state officer to prevent ongoing violations of federal law); Freeland v. Ballard, 6
F.Supp.3d 683 (S.D.W.Va. 2014) (Pursuant to the Eleventh Amendment, a federal court may
enjoin state officials to conform their future conduct to federal law, which is distinguishable
from a retroactive monetary award paid from state funds. U.S.C.A. Const. Amend. 11.). And as
the Supreme Court has instructed:
The Eleventh Amendment confirms the sovereign status of the States by
shielding them from suits by individuals absent their consent. Seminole Tribe of
Fla. v. Florida, 517 U.S. 44, 54, 116 S. Ct. 1114, 134 L. Ed.2d 252 (1996). To
ensure the enforcement of federal law, however, the Eleventh Amendment
permits suits for prospective injunctive relief against state officials acting in
violation of federal law. [Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed.
714 (1908)]. This standard allows courts to order prospective relief, see Edelman
v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed.2d 662 (1974); Milliken v.
Bradley, 433 U.S. 267, 97 S. Ct. 2749, 53 L. Ed.2d 745 (1977), as well as
measures ancillary to appropriate prospective relief, Green v. Mansour, 474 U.S.
64, 7173, 106 S. Ct. 423, 88 L. Ed.2d 371 (1985). Federal courts may not award
retrospective relief, for instance, money damages or its equivalent, if the State
invokes its immunity. Edelman, supra, at 668, 94 S. Ct. 1347.

Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S. Ct. 899, 903 (2004). In determining
whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need
only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as prospective. Idaho v. Coeur
dAlene Tribe of Idaho, 521 U.S. 261, 296, 117 S. Ct. 2028, 138 L. Ed.2d 438 (1997), cited in
Verizon Maryland, Inc. v. Public Service Comn of Maryland, 535 U.S. 635, 122 S. Ct. 1753
(2002).
In order to sue a state official, he or she must have some connection with the
enforcement of the act. Animal Legal Defense Fund v. Otter,____ F.Supp.2d____ , 2014 WL
4388158 (D. Idaho 2014) (citing Ex parte Young). As further explained in Animal Legal Defense,
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This connection must be fairly direct; a generalized duty to enforce state
law or general supervisory power over the persons responsible for enforcing the
challenged provision will not subject an official to suit. [Los Angeles County Bar
Assn v. Eu,979 F.2d 697, 704 (9th Cir. 1992)]. If a challenged statute is not of the
type to give rise to enforcement proceedings, a state official nonetheless may be
named as a defendant under Ex parte Young if he has responsibility to give
effect to the law. See, e.g., id. at 704.
Animal Legal Defense, at * 3.
In South Carolina, the governor and the attorney general owe a duty to see that the laws
of this State are faithfully executed. S.C. Const. article IV, 15 (The Governor shall take care
that the laws be faithfully executed. To this end, the Attorney General shall assist and represent
the Governor....). Thus, the governor and the attorney general are the proper parties to this
action in which these plaintiffs seek injunctive relief against enforcement of the laws that bar
same-sex marriage.
In finding that the Attorney General was the correct state official named in the suit, the
Court in Ex Parte Young stated:
It would seem to be clear that the attorney general, under his power
existing at common law, and by virtue of these various statutes, had a general
duty imposed upon him, which includes the right and the power to enforce the
statutes of the state, including, of course, the act in question, if it were
constitutional. His power by virtue of his office sufficiently connected him with
the duty of enforcement to make him a proper party to a suit of the nature of the
one now before the United States circuit court.

Ex parte Young, 209 U.S. 123, 161, 28 S.Ct. 441, 444, 52 L.Ed. 714 (1908).
In Bostic, all of the plaintiffs (two same-sex couples) sued the Attorney General and
Governor of the State of Virginia as well as the Clerk of Court for the City of Norfolk who
issues marriage licenses. The Court specifically addressed standing of one of the couples, Schall
and Townley, who, like the Plaintiffs here, had married in another jurisdiction and sought
recognition of their marriage in Virginia but did not apply for a marriage license in Virginia.
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The other couple had asked for but was denied a marriage license by the County Clerk, Rainey.
The Fourth Circuit performed a thorough analysis of whether Plaintiffs Schall and Townley had
any standing to sue Rainey and in finding that they did, the Court said:
Schall and Townleysatisfy the injury requirement in two ways. First, in
equal protection cases-such as this case[w]hen the government erects a barrier
that makes it more difficult for members of one group to obtain a benefit than it is
for members of another group, .... [t]he injury in fact ... is the denial of equal
treatment resulting from the imposition of the barrier[.] Ne. Fla. Chapter of
Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666,
113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). The Virginia Marriage Laws erect such
a barrier, which prevents same-sex couples from obtaining the emotional, social,
and financial benefits that opposite-sex couples realize upon marriage. Second,
Schall and Townley allege that they have suffered stigmatic injuries due to their
inability to get married in Virginia and Virginias refusal to recognize their
California marriage. Stigmatic injury stemming from discriminatory treatment is
sufficient to satisfy standings injury requirement if the plaintiff identifies some
concrete interest with respect to which [he or she] [is] personally subject to
discriminatory treatment and [t]hat interest independently satisf[ies] the
causation requirement of standing doctrine. [Allen v. Wright, 468 U.S. 737, 757
n. 22, 104 S.Ct. 3315 (1984), abrogated on other grounds by Lexmark Intl, Inc.
v. Static Control Components, U.S. , 134 S.Ct. 1377, 188 L.Ed.2d 392
(2014). Schall and Townley point to several concrete ways in which the Virginia
Marriage Laws have resulted in discriminatory treatment. For example, they
allege that their marital status has hindered Schall from visiting Townley in the
hospital, prevented Schall from adopting E. S.-T., and subjected Schall and
Townley to tax burdens from which married opposite-sex couples are exempt.
Because Schall and Townley highlight specific, concrete instances of
discrimination rather than making abstract allegations, their stigmatic injuries are
legally cognizable.

Because declaring the Virginia Marriage Laws unconstitutional and
enjoining their enforcement would redress Schall and Townleys injuries, they
satisfy standing doctrines three requirements with respect to Rainey. In sum,
each of the Plaintiffs has standing as to at least one defendant.

Bostic, 760 F.3d at 371-72. In other words, it was not necessary for Schall and Townley to have
included Rainey as a Defendant they would have passed the standing test simply by suing the
Governor and Attorney General of the State of Virginia.
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The Defendants here attempt to compare this case to Bishop II, infra, in arguing that
these Plaintiffs have not sued the correct Defendants but should have sued a member of the
judiciary where licenses are issued. However, the Kitchen v. Herbert analysis explains why both
the Attorney General and the Governor of the State of Utah were properly included as
Defendants in that case:
In Bishop v. Oklahoma ex rel. Edmondson, 333 Fed.Appx. 361 (10th
Cir.2009) (unpublished), we held that Oklahomas Governor and Attorney
General were not proper defendants in a challenge to that states prohibition on
same-sex marriage. Id. at 365. Because of the legal and factual differences
between that case and this one, we reach the opposite conclusion as to Utahs
Governor and Attorney General.

Our holding in Bishop turned on the conclusion that marriage licensing
and recognition in Oklahoma were within the administration of the judiciary.
Id. The district court clerk charged with various duties related to marriage is
judicial personnel and is an arm of the court ... subject to the control of the
Supreme Court and the supervisory control that it has passed down to the
Administrative District Judge in the clerks administrative district. Id.
Accordingly, we concluded that the executive branch of Oklahomas government
has no authority to issue a marriage license or record a marriage. Id.

In Utah, marriage licenses are issued not by court clerks but by county
clerks. See Utah Code 17204 (listing duties of county clerks) & 1753101
(providing for election of county clerks). The Governor and Attorney General
have explicitly taken the position in this litigation that they have ample authority
to ensure that the Salt Lake County Clerk return[s] to her former practice of
limiting marriage licenses to man-woman couples in compliance with Utah law.
This assertion is supported by the Utah Code. The Governor is statutorily charged
with supervis[ing] the official conduct of all executive and ministerial officers
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and see[ing] that all offices are filled and the duties thereof performed. 671
1(1) & (2). In addition, he may require the attorney general to aid any county
attorney or district attorney in the discharge of his duties. 6711(7).

The Attorney General is required to exercise supervisory powers over the
district and county attorneys of the state in all matters pertaining to the duties of
their offices and when required by the public service or directed by the
governor, assist any county, district, or city attorney in the discharge of his
duties. 6751(6) & (8).

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The Governor and Attorney General have also demonstrated a
willingness to exercise their duty to ensure clerks and other state officials
enforce Amendment 3. [Chamber of Commerce of the U.S. v. Edmondson, 594
F.3d 742, 760 (10th Cir. 2010)] (quotation omitted). The record shows that the
Governor coordinated state agencies response to the district courts order,
informing his cabinet:

For those agencies that now face conflicting laws either in statute or
administrative rule, you should consult with the Assistant Attorney Generals
assigned to your agency on the best course to resolve those conflicts. You should
also advise your analyst in [the Governors Office of Management and Budget] of
the plans for addressing the conflicting laws.

Thus, state agencies with responsibility for the recognition of out-of-state
marriages are being directed by the Governor in consultation with the Attorney
General. These officials authority over such agencies is confirmed by Utah law.
For example, Plaintiffs Archer and Call, who were married in Iowa, specifically
seek to file joint Utah tax returns. Although the Utah State Tax Commission is
charged in the first instance with the duty to administer and supervise the tax
laws of the state, Utah Code 591210(5), the Attorney General in his
constitutional role as the legal adviser of the State officers, Utah Const. art. VII,
16, is required by statute to offer his opinion in writing ... to any state officer,
board, or commission, Utah Code 6751(7). The Attorney General considers
his opinions to the Utah State Tax Commission, even informal ones, to be
authoritative for the purposes of the Commission with respect to the specific
questions presented. Applicability of Sales & Use Tax to Transfer of Motor
Vehicle from a Partner to a Pship, Op. Utah Atty Gen. 8613 (1987), 1987 Utah
AG LEXIS 15, at *22. The Attorney General is empowered to direct the Tax
Commission to recognize Archer and Calls Iowa wedding, and the Commission
would be legally obligated to follow that instruction and accept a joint tax return.
Accordingly, Archer and Call had standing to sue the Attorney General for the
injuries caused by Amendment 3s nonrecognition provisions. See generally Coll
v. First Am. Title Ins. Co., 642 F.3d 876, 892 (10th Cir. 2011) ( Plaintiffs must
have standing to seek each form of relief in each claim. (quotation omitted)).

The same is true with respect to the Governor. Utahs executive power
is vested in the Governor. Utah Const. art. VII, 5. In the exercise of that
power, the Governor appoints the states tax commissioners and has the power to
initiate proceedings to remove them from office. Utah Code 591201. Shortly
after the Governor sent the above-quoted message to state agencies, the Tax
Commission issued a Tax Notice stating that [s]ame-sex couples who are eligible
to file a joint federal income tax return and who elect to file jointly, may also file
a joint 2013 Utah Individual Income Tax return. Utah State Tax Commission,
Individual Income Tax Returns for SameSex Couples for Tax Year 2013 (Jan.
15, 2014) (available at http://tax.utah. gov/notice/2014-01-15.pdf). The Tax
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Notice refers to the district courts injunction, noting that a stay of that order had
not been granted as of December 31, 2013. Id. Thus, one of the injuries explicitly
cited by plaintiffs Archer and Call has been at least temporarily redressed by the
district courts decision and actions taken in response to it by the Governor after
consultation with the Attorney General.

We conclude that the Governors and the Attorney Generals actual
exercise of supervisory power and their authority to compel compliance from
county clerks and other officials provide the requisite nexus between them and
Amendment 3. Although it does not suffice if the injury complained of is the
result of the independent action of some third party not before the court, that does
not exclude injury produced by determinative or coercive effect upon the action of
someone else. Bennett v. Spear, 520 U.S. 154, 169, 117 S.Ct. 1154, 137 L.Ed.2d
281 (1997) (quotation, alteration, and emphasis omitted). And a state official is a
proper defendant if he is responsible for general supervision of the
administration by the local ... officials of a challenged provision. Papasan v.
Allain, 478 U.S. 265, 282 n. 14, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (quotation
omitted). This is so even if the state officials are not specifically empowered to
ensure compliance with the statute at issue, if they clearly have assisted or
currently assist in giving effect to the law. Prairie Band Potawatomi Nation v.
Wagnon, 476 F.3d 818, 828 (10th Cir.2007) (footnote omitted).

Kitchen v. Herbert, 755 F.3d at 1200-02.

In South Carolina The supreme executive authority lies with a chief magistrate who
is called the governor. The principal charge of this office is to ensure that the laws of the state
are faithfully executed. Toward this end, the attorney general may assist and represent the
governor. 19 S.C. Jur. Constitutional Law 23.
Indeed, the duties of the Attorney General of South Carolina require that He shall appear
for the State in the Supreme Court and the court of appeals in the trial and argument of all
causes, criminal and civil, in which the State is a party or interested, and in these causes in any
other court or tribunal when required by the Governor or either branch of the General
Assembly. S.C. Code Ann. 1-7-40 (1976) He shall, when required by the Secretary of State,
State Treasurer, Adjutant General, Comptroller General, or any other State officer or the Public
Service Commission, consult and advise with them, respectively, on questions of law relating to
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their official business. S.C. Code 1-7-110 (1976); State ex rel. Condon v. Hodges, 562
S.E.2d 623 (S.C. 2002) (Moreover, as stated previously, the Attorney General can bring an
action against the Governor when it is necessary for the enforcement of the laws of the State, the
preservation of order, and the protection of public rights.).
Inevitably, the Attorney General can and does provide advice to the South Carolina
Department of Revenue, an agency that refused to honor same-sex couples as married for
purposes of filing their state tax returns after the Windsor decision, an injury cited by these
Plaintiffs. The head of the South Carolina Department of Revenue is appointed by the Governor.
See http://www.southcarolinaradionetwork.com/2014/01/22/sc-tax-office-legally-married-gay-
couples-need-to-wait-to-file-taxes/. Additionally, the Division of Vital Statistics of the
Department of Health and Environmental Control, the head of which is appointed by the
Governor, is responsible for the printing and distribution of appropriate forms for marriage
licenses and certificates to be utilized by all probate courts and clerks of court of this State. S.C.
Code Ann. 20-1-320 (1976).
Here, Plaintiffs have requested injunctive relief against state officials enforcing laws that
violate the federal constitution as set forth in Bostic v. Schaefer. It is no secret that both the
Attorney General and the Governor of the State of South Carolinas duties involve upholding and
enforcing the law of South Carolina. Defendant Wilson said this himself in a Petition he filed on
October 8, 2014 in the South Carolina Supreme Court seeking an injunction against the issuance
of marriage licenses by Probate Judges in South Carolina. See Condon v. Wilson, Petition for
Original Jurisdiction and Motion for Injunction filed October 8, 2014 (Attorney General Wilson
alleged, As the Chief Legal Officer of South Carolina, it is the sworn duty of the Attorney
16

General to seek to uphold State law until set aside by the courts.). Available at
http://www.judicial.state.sc.us/whatsnew/Petition%20for%20Original%20Jurisdiction.pdf
This very act alone establishes that the Attorney General committed the quintessential act
that empowers this federal court to act to enjoin his actions that are precisely clothed with some
duty in regard to the enforcement of the laws of the State of South Carolina. The Attorney
General here proceeded to commence an actionto enforce unconstitutional state statutes and
thus may be enjoined from doing so by a federal court. Ex Parte Young, 209 U.S. 123, 156
(1908). Ultimately, Defendant Wilson as Attorney General was victorious in obtaining an Order
enjoining South Carolina Probate Judges from issuing marriage licenses pending the outcome of
this case based in part upon his assertion of this status as Chief Legal Officer of South
Carolina. See State ex rel Wilson v. Condon, Order (Appellate Case No. 2014-002121) (S.C.
Sup. Ct. filed October 9, 2014)(2014 WL 5038396).
Defendant Haley has also publicly claimed a duty to enforce the current laws: This
issue is in the hands of the courts, said Haley spokesman Doug Mayer. Our state marriage law
stands until the federal courts make a clear judgment on it. Governor Haley is duty bound to
support our law and thats what she will do. (http://charlotte.cbslocal.com/2014/10/28/woman-
sues-to-use-wifes-name-on-sc-driver-license/#.VFAf79BC1GY.mailto);
(http://www.wyff4.com/news/columbia-statewide-news/governor-sc-law-residents-against-gay-
marriage/21762090#ixzz3HYHz9JyT) (Gov. Haley, like the majority of South Carolinians,
supports traditional marriage as defined between one man and one woman and in accordance
with state law will continue to uphold those values. The legislature has spoken on this issue, the
people have spoken on this issue, and the governor remains resolute in her support of South
Carolinas constitution and states rights and this lawsuit doesnt change that.).
17

While Defendants allege that Plaintiffs should have included the Clerk of Court or
member of the judiciary in this suit, the fact remains that it is the Governor and the Attorney
General alone enforcing the laws of the State of South Carolina as demonstrated in its Petition
for Injunction filed in the State Supreme Court. No other entity has the power to issue a
marriage license unless and until the chief law enforcement officers of this State consent to doing
so by not contesting this litigation, or this Court renders its judgment.
Further, no other married couple that marries in another jurisdiction and then moves to
South Carolina is required to again apply for a marriage license in South Carolina. The law of
this State is clear, As a general rule, the validity of a marriage is determined by the law of the
place where it is contracted, 52 Am.Jur.2d, Marriage, Section 80; and will be recognized in
another state unless such recognition would be contrary to a strong public policy of that State,
id., Section 82. Zwerling v. Zwerling, 244 S.E.2d 311 (S.C. 1978).
The Plaintiffs are not barred by the Eleventh Amendment, nor have they sued the wrong
parties in this case. Defendants arguments to the contrary therefore fails.

B. Plaintiffs Do Not Lack Standing to Sue the Defendants

This Court should look nowhere other than Bostic, the controlling and prevailing law of
this District, in determining that these Plaintiffs have standing to sue.
Plaintiffs reincorporate and re-allege herein their arguments set forth both in their
Amended Complaint and in their Memorandum in Support of Summary Judgment demonstrating
current and concrete injuries of past, present and future as a result of South Carolina failing to
recognize their marital union.
As in Bostic, Plaintiffs here satisfy the injury requirement in two ways. First, in equal
18

protection cases, such as this case:
When the government erects a barrier that makes it more difficult for
members of one group to obtain a benefit than it is for members of another group,
....[t]he injury in fact...is the denial of equal treatment resulting from the
imposition of the barrier[.] Second,[s]tigmatic injury stemming from
discriminatory treatment is sufficient to satisfy standings injury requirement if
the plaintiff identifies some concrete interest with respect to which [he or she]
[is] personally subject to discriminatory treatment and [t]hat interest
independently satisf[ies] the causation requirement of standing doctrine.

Bostic, 760 F.3d at 372 (quoting Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315 (1984),
abrogated on other grounds by Lexmark In'l, Inc. v. Static Control Components, U.S. ,
134 S.Ct. 1377, 188 L.Ed.2d 392 (2014)). The Bostic Court added:
For example, they allege that their marital status has hindered Schall from
visiting Townley in the hospital, prevented Schall from adopting E. S.-T., and
subjected Schall and Townley to tax burdens from which married opposite-sex
couples are exempt. Because Schall and Townley highlight specific, concrete
instances of discrimination rather than making abstract allegations, their stigmatic
injuries are legally cognizable.

Bostic, 760 F.3d at 372.
In their Motion for Summary Judgment, Plaintiffs pointed to a litany of injuries they have
incurred as a result of the application of South Carolina marriage laws causing discriminatory
treatment. Accordingly, Defendants argument here must also fail.
Defendants further allege that Plaintiffs do not have standing to sue on behalf of third-
parties as they have no injuries in fact. If this Court strikes down South Carolinas same-sex
marriage bans as unconstitutional, then this argument becomes moot, and all other similarly
situated couples will be entitled to marry or be recognized as married in South Carolina.

19

III. The Legal History of Marriage is No Bar to this Action

The Defendants present the Court with a brief history of marriage law as an opposite sex
institution, purportedly as a good background for considering the constitutional issues in this
matter. (Dkt. 78, pp. 23-27). This argument echoes the discussion by Justice Alito in his dissent
in Windsor, 133 S.Ct. at 2718 (noting traditional marriage is exclusively [an] opposite-sex
institution ... inextricably linked to procreation and biological kinship.). This argument also
raises the contention that so-called traditional marriage is designed for securing the
maintenance and education of children. (Dkt. 78 p. 24). The Defendants point to a statute from
1712, ostensibly to support the notion that traditional marriage enjoys a history spanning three
centuries in South Carolina. (Dkt. 78 p. 25).
But the history of requirements for marriage in South Carolina is fluid. For instance, even
the Defendants note that an 1845 case mentioned that marriage at the time was legal between
men of 14 and women of 12 years of age... State v. Barefoot, 31 S.C.L. (2 Rich.) 209 (S.C. Ct.
App. Law 1845). (Dkt. 78 p. 25). See also State v. Ward, 28 S.E.2d 785 (S.C. 1944) (noting
South Carolina adheres to the common law rule establishing the age of consent at 14 for males
and 12 for females). By 1944, a statute changed these ages to 14 for females and 18 for males,
id. (citing to Section 8558 of the Code of 1942), and by the 1960s, the statutory age for marriage
became 14 for females and 16 for males with parental consent under 18. S.C. Code Ann. 20-
24.1 (1962 as amended). This had changed again by 1973, when a person under 21 years of age
needed parental consent under some circumstances. See City of Rock Hill v. Harris, 705 S.E.2d
53, 56 n. 1 (S.C. 2011) (noting that in 1973, Code Section 5-20-24.1 provided that an applicant
for a marriage license who was under 21 years old and who could not show age by birth
certificate had to obtain consent from a parent or guardian). Today, the general age of consent for
20

marriage is 16 (males or females) with parental consent, and 18 otherwise. S.C. Code Ann. 20-
1-250 (Act No. 397, 2000 S.C. Acts eff. Aug. 17, 2000).
Furthermore, the holding in Barefoot was that a nephew may lawfully marry his aunt.
The Court noted that [a]t common law, a marriage between aunt and nephew is not void, it can
only be avoided in Ecclesiastical Court. The Court also noted that the law of England had
changed in 1835 to render marriages within prohibited degrees of consanguinity or affinity ...
absolutely void to all purposes whatever, adding this English statute is not offorce in South
Carolina. (Emphasis by the Court). Thus, Barefoots first marriage to his mothers sister (his
aunt) was not void so that his marriage to his second wife supported his conviction for bigamy.
As the Defendants point out, it was not until 1871 that the relationship (marriage of nephew with
aunt) was made unlawful in this state. (Memorandum p. 25). Of course, today, South Carolina
prohibits a man from marrying his mothers sister, S.C. Code Ann. 20-1-10 (B), the very
marriage held valid in Barefoot.
Barefoot provides another aspect demonstrating that the ability to marry in South
Carolina is not the product of a static set of historical facts. In Barefoot, the Court noted that the
law in South Carolina prohibited a person from marrying someone if that person had a spouse
still living. There was no such thing as divorce at the time, so even if someone found a way to
end a marriage, South Carolina law would provide that he or she would commit bigamy if he or
she remarried while the first spouse was still living. Barefoot (The contract in South Carolina is
held to be indissoluble from whatever cause but death, no divorce a vinculo matrimonii ever
having been granted in South Carolina.). Of course, today, someone who is divorced under the
laws of South Carolina (or any other state or commonwealth) is eligible to marry another
21

unmarried person. See S.C. Code Ann. 20-3-10 (1979) (setting forth the grounds for divorce in
South Carolina).
South Carolinas marital history contains other vestiges that no one would contend should
inform the current discussion. For instance, at one time performing a marriage involving
miscegenation was crime, S.C. Code Ann. 20-8 (1962), but the Code specifically provided that
a white person in South Carolina could legally marry a Catawba Indian. S.C. Code Ann. 20-7
(1962). And anyone who merely cohabited with another person prior to actual emancipation but
under an agreement to be husband and wife as of March 12, 1972 was deemed married, but only
if the agreement to live in concubinage occurred prior to emancipation. S.C. Code Ann. 20-2
(1962).
So the history of marriage in South Carolina demonstrates constant development over
time, changing significantly since that Act of 1712. And as the Ninth Circuit recently explained:
* * * Modern marriage regimes, however, have evolved considerably;
within the past century, married women had no right to own property, enter into
contracts, retain wages, make decisions about children, or pursue rape allegations
against their husbands. See generally Claudia Zaher, When A Womans Marital
Status Determined Her Legal Status: A Research Guide on the Common Law
Doctrine of Coverture, 94 Law Libr. J. 459, 46061 (2002) (Under coverture, a
wife simply had no legal existence. She became ... civilly dead. ). Women lost
their citizenship when they married foreign men. See Kristin Collins, When
Fathers Rights Are Mothers Duties, 109 Yale L.J. 1669, 168689 (2000). (In
fact, women, married or not, were not allowed to serve on juries or even to vote.
See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 13135, 114 S. Ct. 1419, 128 L.
Ed.2d 89 (1994).). Before no-fault divorce laws were enacted, separated spouses
had to fabricate adulterous affairs in order to end their marriages. Lawrence M.
Friedman, A History of American Law 57778 (2005).

Latta v. Otter, ___ F.3d ___, 2014 WL 4977682 (9th Cir. 2014) (slip at 10).
The Defendants next contend that the notion that same-sex marriage is protected by the
Constitution of the United States has been in the public discussion for less than a generation,
22

implying that rights are somehow diminished because they have only recently been recognized
by the overwhelming majority of courts that have addressed them. (Dkt. 78 p. 26). These same
contentions, however, could have been made in the late 1960s, when schools in this Country,
including South Carolina, having been ordered to desegregate with deliberate all speed,
Brunson v. Board of Trustees of School Dist. No. 1 of Clarendon County, S.C., 244 F. Supp. 859
(D.S.C. 1965), were then told the time for mere deliberate speed has run out. Green v.
County School Bd. of New Kent County, Va., 391 U.S. 430, 438, 88 S. Ct. 1689, 1694 (1968).
And the contention that the Constitutional rights in question are not embedded in our countrys
founding document would have been no more valid then than it is today.
More basic to this notion, however, is that this undercurrent of tradition runs head on
into Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed.2d 1010 (1967), since the limitation
of marriage to persons of the same race was traditional in a number of states when the Supreme
Court invalidated it. Baskin v. Bogan, 766 F.3d 648, 666 (7th Cir. 2014). Accord Latta, 2014
WL 4977682 (slip at 10) (The anti-miscegenation laws struck down in Loving were
longstanding. Here as there, however, neither history nor tradition [can] save [the laws] from
constitutional attack, citing Lawrence v. Texas, 539 U.S. 558, 577-78, 123 S. Ct. 2472 (2003)).
The Fourth Circuit also addressed this very point in Bostic, where the Court stated:
We do not dispute that states have refused to permit same-sex marriages
for most of our countrys history. However, this fact is irrelevant in this case
because [Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258 (1997)]s
analysis applies only when courts consider whether to recognize new fundamental
rights. See id. at 720, 727 & n. 19, 117 S. Ct. 2258 (identifying the above process
as a way of expand[ing] the concept of substantive due process beyond
established fundamental rights, such as the right to marry (quoting Collins v. City
of Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061, 117 L. Ed.2d 261 (1992))
(internal quotation marks omitted)). Because we conclude that the fundamental
right to marry encompasses the right to same-sex marriage, Glucksbergs analysis
is inapplicable here.
23

Over the decades, the Supreme Court has demonstrated that the right to
marry is an expansive liberty interest that may stretch to accommodate changing
societal norms. Perhaps most notably, in Loving v. Virginia, the Supreme Court
invalidated a Virginia law that prohibited white individuals from marrying
individuals of other races. 388 U.S. at 4, 87 S. Ct. 1817. The Court explained that
[t]he freedom to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness by free men and that no valid
basis justified the Virginia laws infringement of that right. Id. at 12, 87 S.Ct.
1817. Subsequently, in Zablocki v. Redhail, the Supreme Court considered the
constitutionality of a Wisconsin statute that required people obligated to pay child
support to obtain a court order granting permission to marry before they could
receive a marriage license. 434 U.S. at 375, 38384, 98 S. Ct. 673 [(1978)]. The
statute specified that a court should grant permission only to applicants who
proved that they had complied with their child support obligations and
demonstrated that their children were not likely to become public charges. Id. at
375, 98 S. Ct. 673 (internal quotation marks omitted). The Court held that the
statute impermissibly infringed on the right to marry. See id. at 39091, 98 S. Ct.
673. Finally, in Turner v. Safley, the Court determined that a Missouri regulation
that generally prohibited prison inmates from marrying was an unconstitutional
breach of the right to marry. 482 U.S. 78, 82, 9499, 107 S. Ct. 2254, 96 L. Ed.2d
64 (1987).

These cases do not define the rights in question as the right to interracial
marriage, the right of people owing child support to marry, and the right of
prison inmates to marry. Instead, they speak of a broad right to marry that is not
circumscribed based on the characteristics of the individuals seeking to exercise
that right. The Supreme Courts unwillingness to constrain the right to marry to
certain subspecies of marriage meshes with its conclusion that the right to marry
is a matter of freedom of choice, Zablocki, 434 U.S. at 387, 98 S.Ct. 673, that
resides with the individual, Loving, 388 U.S. at 12, 87 S.Ct. 1817. If courts
limited the right to marry to certain couplings, they would effectively create a list
of legally preferred spouses, rendering the choice of whom to marry a hollow
choice indeed.

760 F.3d at 376-77.
Whether the challenged State statutory and constitutional provisions did not change
South Carolina law, but instead, ratified existing law is also irrelevant. Even if the provisions
created new law or merely recognized settled existing law, those provisions collapse under the
weight of the mandates of the United States Constitution. Bostic says as much.
24

Accordingly, this Court should not be persuaded to avoid addressing the issues presented
in this case because the history (that is, tradition) of South Carolina favors opposite-sex marriage
to the exclusion of same-sex marriage.

IV. Judge Neimeyers Dissent is Just That: A Dissent

The Defendants ask this Court to adopt the lesser scrutiny standard of review advocated
by Judge Neimeyer in dissent in Bostic in determining whether the same sex marriage ban in
South Carolina is constitutional. However, the majority in Bostic, implicitly approved by the
Supreme Courts decision not to review the case, found that the appropriate level of scrutiny
should be strict scrutiny. And that decision controls in this District.
As the Bostic majority explained:
Under both the Due Process and Equal Protection Clauses, interference
with a fundamental right warrants the application of strict scrutiny. Washington v.
Glucksberg, 521 U.S. 702, 71920, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997);
Zablocki v. Redhail, 434 U.S. 374, 383, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). The
Court explained that [t]he freedom to marry has long been recognized as one of
the vital personal rights essential to the orderly pursuit of happiness by free men
and that no valid basis justified the Virginia laws infringement of that right. Id. at
12, 87 S.Ct. 1817.

As we note above, the Court reiterated this theme in Windsor, in which it
based its conclusion that section 3 of DOMA was unconstitutional, in part, on that
provisions disrespect for the moral and sexual choices that accompany a same-
sex couples decision to marry. 133 S.Ct. at 2694. Lawrence and Windsor indicate
that the choices that individuals make in the context of same-sex relationships
enjoy the same constitutional protection as the choices accompanying opposite-
sex relationships. We therefore have no reason to suspect that the Supreme Court
would accord the choice to marry someone of the same sex any less respect than
the choice to marry an opposite-sex individual who is of a different race, owes
child support, or is imprisoned.

Strict scrutiny applies only when laws significantly interfere with a
fundamental right. See id. at 38687, 98 S.Ct. 673. The Virginia Marriage Laws
unquestionably satisfy this requirement: they impede the right to marry by
preventing same-sex couples from marrying and nullifying the legal import of
25

their out-of-state marriages. Strict scrutiny therefore applies in this case.

Bostic, 760 F.3d at 377. Although the Defendants contend otherwise and seek refuge in
Judge Neimeyers dissent, that dissent is just that: a dissent.

Should this Court seek outside guidance on this issue, it need only review the District
Court decision in Baskin v Bogan, which similarly found that the appropriate level of scrutiny for
these kinds of cases was strict scrutiny:
For strict scrutiny to be appropriate, the court must find: (1) there is a
fundamental right, and (2) the classification significantly interferes with the
exercise of that right. Id. First, as stated above, the court finds that the
fundamental right to marry includes the right of the individual to marry a person
of the same sex. Second, Section 311111 significantly interferes with that
right because it completely bans the Plaintiffs from marrying that one person of
their choosing. Therefore, Indianas marriage laws are subject to strict scrutiny.
See Bostic, 970 F.Supp.2d at 473.

Baskin v. Bogan, ___F.Supp.2d___, 2014 WL 2884868 (S.D. Ind. 2014) (Young, CJ), affd 766
F.3d 648 (10th Cir. 2014) (Posner, J).
For these reasons, this Court should reject Defendants request to apply Judge
Neimeyers dissent, and should apply strict scrutiny in determining that there is a fundamental
right of these Plaintiffs to marry and that the classification by the State of South Carolina by
virtue of its marriage laws significantly interferes with the exercise of that right.

V. South Carolinas Longstanding Definition of Marriage Does Not Save the Subject
Provisions under Any View of Equal Protection or Due Process

The Defendants argument here parrots the analysis Judge Neimeyer set forth in his
dissent in Bostic. (Dkt. 78 pp. 34-37). In fact, Defendants expressly invite the Court to follow the
dissent and reject the majority decision by Judge Floyd. The Court should decline this invitation.
26

As noted, a dissent is just that: a dissent. It has no binding force or precedential value it
is not entitled to stare decisis. Cf. Krier-Hawthorne v. Beam, 728 F.2d 658, 666 n. 18 (4th Cir.
1984) (Murnaghan, dissenting) (noting the author of the majority decision in Krier-Hawthorne
dissented in a prior case and adding whatever the merits of the [prior] dissent, the majority
opinion in that case remains as precedential and binding authority.); Com. v. Weiss, 81 A.3d
767, 780 n. 9 (Pa. 2013) (Notwithstanding this dissent, it is axiomatic that the majority opinion
represents binding precedent and the law of the case); Rogers v. Daly, 2013 WL 5701669 (D.
Mont. 2013) (Objection (B) summarizes Justice Blackmuns dissent in Polk County v. Dodson,
454 U.S. 312, 328338, 102 S.Ct. 445, 70 L.Ed.2d 509 (Blackmun, J. dissenting). As persuasive
as Justice Blackmuns dissent might be, this Court cannot hold contrary to the binding U.S.
Supreme Court precedent announced in Polk County on the basis of that dissent.); Booker v.
BWIA W. Indies Airways Ltd., No. 06CV2146, 2007 WL 1351927, at *3 (E.D.N.Y.2007)
(Plaintiff cites to Justice Stevens[s] dissent in El Al .... A dissent, however, is not binding and
has absolutely no precedential value.); City of Oneida, N.Y. v. Salazar, No. 08CV0648, 2009
WL 3055274, at *2 (N.D.N.Y.2009) (This dissent, however, has no precedential value.).
Furthermore, the argument based upon the long tradition and history of opposite-sex
marriage was roundly rejected by the majority in Bostic as well as every other federal appellate
court to address these issues. That argument also crumbles under its own weak foundation. See
part III of this Response, infra. And as Judge Posner wrote in Baskin:
Tradition per se has no positive or negative significance. There are good
traditions, bad traditions pilloried in such famous literary stories as Franz Kafkas
In the Penal Colony and Shirley Jacksons The Lottery, bad traditions that are
historical realities such as cannibalism, foot-binding, and suttee, and traditions
that from a public-policy standpoint are neither good nor bad (such as trick-or-
treating on Halloween). Tradition per se therefore cannot be a lawful ground for
discriminationregardless of the age of the tradition. Holmes thought it
27

revolting to have no better reason for a rule of law than that so it was laid down
in the time of Henry IV. Oliver Wendell Holmes, Jr., The Path of the Law, 10
Harv. L.Rev. 457, 469 (1897). Henry IV (the English Henry IV, not the French
oneHolmes presumably was referring to the former) died in 1413. Criticism of
homosexuality is far older. In Leviticus 18:22 we read that thou shalt not lie with
mankind, as with womankind: it is abomination.

* * *

Wisconsin points out that many venerable customs appear to rest on
nothing more than traditionone might even say on mindless tradition. Why do
men wear ties? Why do people shake hands (thus spreading germs) or give a peck
on the cheek (ditto) when greeting a friend? Why does the President at
Thanksgiving spare a brace of turkeys (two out of the more than 40 million
turkeys killed for Thanksgiving dinners) from the butchers knife? But these
traditions, while to the fastidious they may seem silly, are at least harmless. If no
social benefit is conferred by a tradition and it is written into law and it
discriminates against a number of people and does them harm beyond just
offending them, it is not just a harmless anachronism; it is a violation of the equal
protection clause, as in Loving. See 388 U.S. at 812, 87 S.Ct. 1817.

766 F.3d at 666-667 (emphasis added).
For the reasons stated here and in part III of this Response, the Court should not be
persuaded by the tradition argument touted by Judge Neimeyers dissent and argued by the
Defendants in this case.

VI. The Full Faith and Credit Clause Permits This Suit

Defendants argue that the Full Faith and Credit clause of the United States Constitution
does not support the causes of action Plaintiffs have brought in this case. They state four separate
arguments in support of their argument that this Court should dismiss this case on the pleadings.
The Court should not be persuaded to do so by the Defendants arguments on this point, but
should instead proceed to answer the questions on the merits.

28

A. The Full Faith and Credit Clause Controls This Case

The Defendants first contend that the Full Faith and Credit clause does not support a
cause of action against state officials and asks the Court to dismiss Plaintiffs claims under this
Clause. (Dkt. 78 p. 39). The Court should not be persuaded by this argument.
The primary source of this argument is a case from the Fifth Ciruit, Adar v. Smith, 639
F.3d 146 (5th Cir. 2011). In Adar, the Court stated, [t]he Supreme Court has described the full
faith and credit clause as imposing a constitutional rule of decision on state courts. 639 F.3d at
153-154. The Court then dropped the following footnote in support of this statement:
Thompson v. Thompson, 484 U.S. 174, 18283, 108 S.Ct. 513, 518, 98 L.Ed.2d
512 (1988) ([T]he Clause only prescribes a rule by which courts, Federal and
state, are to be guided when a question arises in the progress of a pending suit as
to the faith and credit to be given by the court to the public acts, records, and
judicial proceedings of a State other than that in which the court is sitting.)
(quoting Minnesota v. N. Sec. Co., 194 U.S. 48, 72, 24 S.Ct. 598, 605, 48 L.Ed.
870 (1904)); 16 AM.JUR.2D Constitutional Law 587, at 992 (1964) (same).

639 F.3d at 154 n. 3. The Court then stated:

While the Court has at times referred to the clause in terms of individual
rights, it consistently identifies the violators of that right as state courts. See,
e.g., Barber v. Barber, 323 U.S. 77, 81, 65 S.Ct. 137, 139, 89 L.Ed. 82 (1944)
(The refusal of the Tennessee Supreme Court to give credit to that judgment
because of its nature is a ruling upon a federal right.); [Magnolia Petroleum Co.
v. Hunt, 320 U.S. 430, 443, 64 S.Ct. 208, 216 (1943)] (When a state court
refuses credit to the judgment of a sister state ..., an asserted federal right is
denied.); Titus v. Wallick, 306 U.S. 282, 291, 59 S.Ct. 557, 562, 83 L.Ed. 653
(1939) (same); Tilt v. Kelsey, 207 U.S. 43, 50, 28 S.Ct. 1, 3, 52 L.Ed. 95 (1907)
(full faith and credit right was denied by the highest court of the state); Hancock
Natl Bank v. Farnum, 176 U.S. 640, 64142, 645, 20 S.Ct. 506, 50708, 44
L.Ed. 619 (1900) (finding that the supreme court of Rhode Island denied plaintiff
a right given by 1, article 4, of the Constitution).

639 F.3d at 154. The Fifth Circuit continued:

The cases thus couple the individual right with the duty of courts and
tether the right to res judicata principles. This explains the usual posture of full
faith and credit cases: the issue arises in the context of pending litigationnot as
29

a claim brought against a party failing to afford full faith and credit to a state
judgment, but as a basis to challenge the forum courts decision. Such cases begin
in state court, and the Supreme Court intervenes only after the state court denies
the validity of a sister states law or judgment. See Allen v. Alleghany Co., 196
U.S. 458, 46465, 25 S.Ct. 311, 313, 49 L.Ed. 551 (1905); Johnson v. N.Y. Life
Ins. Co., 187 U.S. 491, 495, 23 S.Ct. 194, 195, 47 L.Ed. 273 (1903) (noting that
the litigant could not claim her full faith and credit right had been denied until
the trial took place); Chicago & A.R. Co. v. Wiggins Ferry Co., 108 U.S. 18, 23
24, 1 S.Ct. 614, 616, 27 L.Ed. 636 (1883) (no federal question arises until a state
court fails to give full faith and credit to the law of a sister state). Consequently,
since the duty of affording full faith and credit to a judgment falls on courts, it is
incoherent to speak of vindicating full faith and credit rights against non-judicial
state actors.

639 F.3d at 154. The Court then dropped another footnote, stating:

See also 16B AM.JUR.2D Constitutional Law 1030, at 99899 (1964) (In
order to create a reviewable federal question under the constitutional provision as
to full faith and credit, plaintiff must show that the validity of the laws of
another state is drawn into question by the courts.) (emphasis added).

639 F.3d at 154 n. 5. Thus, all of these cases involved an attempt by someone to assert Full Faith
and Credit for a judgment of another state, and the assertion that the forum state officials must
give credence to that foreign states judgment.
Importantly, the Court in Adar added:
Only one federal court decision has permitted a full faith and credit claim
to be brought in federal court pursuant to 1983. Finstuen v. Crutcher, 496 F.3d
1139 (10th Cir.2007). In Finstuen, a couple sued to invalidate an Oklahoma
statute that officially denied recognition to out-of-state adoptions by same-sex
couples. The Tenth Circuit not only granted relief under 1983, but also ordered
a new birth certificate to be issued bearing the names of the same-sex parents. 496
F.3d at 1156. The bulk of the opinion is devoted to analysis of the allegedly
unconstitutional state non-recognition statute, a problem different from the one
here. Moreover, the court did not discuss, nor does it appear to have been argued,
that (1) the clause has hitherto been enforced only as to court decisions denying
recognition of out-of-state judgments, and (2) Supreme Court authority, cited
below, denies federal question jurisdiction to full faith and credit claims.

Finstuen however, acknowledges the principle that [e]nforcement
measures do not travel with the sister state judgment for full faith and credit
purposes, and it characterizes the birth certificate sought by the plaintiffs as an
30

enforcement mechanism. See 496 F.3d at 1154. In the end, Finstuen is
distinguishable not only because the Registrar here concedes the validity of Infant
Js adoption but because Louisiana law, unlike Oklahoma law, does not require
issuing birth certificates to two unmarried individuals. The enforcement
measureissuance of a revised birth certificateis thus critically different in
the two states.

639 F.3d at 156-157. Adar, then, is distinct from this case in meaningful ways.
Finally, every one of these decisions predates Windsor and the wave of judicial decisions
that have followed regarding marriage equality and the recognition of same-sex marriages
performed in other states or commonwealths. And upon a finding that the laws at issue are
unconstitutional, at least one Court declined to reach the same argument Defendants propound
here as a matter of judicial restraint. Bowling v. Pence, --- F.Supp.2d ----, 2014 WL 4104814
(S.D. Ind. 2014).
Accordingly, this Court should reject the Defendants contention that this matter be
dismissed under the Full Faith and Credit clause.

B. South Carolina Is Not Being Asked to Apply District of Columbia Marriage
Law to Persons in this State

Defendants set forth several pages of authority for the principle that the Full Faith and
Credit clause is not a means for compelling a state to substitute the statutes of other states for its
own statutes dealing with a subject matter concerning which it is competent to legislate. (Dkt.
78 pp. 39-42). The Defendants conclude South Carolina is not required to apply District of
Columbia marriage law in this State. (Dkt. p. 42). The Court should not be persuaded to grant
Defendants motion for judgment on this ground.
To begin with, this argument is, at best, a red herring, dragged across the path of this case
to distract the Court in its search for justice. See Johnson v. U.S., 238 F.R.D. 199, 200 n. 2 (W.D.
31

Tex. 2006) (A red herring is defined as an irrelevant legal or factual issue. BLACKS LAW
DICTIONARY 1282 (7th ed.1999)). By invoking the Full Faith and Credit clause, Plaintiffs are
not asking this Court to import the statutory law of a foreign jurisdiction and substitute that law
for the law of South Carolina. Instead, Plaintiffs ask that this Court to do two things: (1) declare
the statutory and constitutional provisions that preclude this State from honoring Plaintiffs
marriage to be violative of the Federal Constitution as set forth in Bostic v. Schaefer and every
other federal appellate circuit court that has addressed these issues; and (2) declare that the State
of South Carolina must afford Full Faith and Credit to Plaintiffs marriage entered lawfully in the
District of Columbia. Plaintiffs are not asking this Court to imprint the District of Columbias
law to permit them to get married in South Carolina. The Court should not be drawn from the
scent of justice by this diversionary tactic. See Henry v. Himes, __ F.3d ___, 2014 WL 1418395
at footnote 23 (Again, the Courts Order today does NOT require Ohio to authorize the
performance of same-sex marriage in Ohio. Todays ruling merely requires Ohio to recognize
valid same-sex marriages lawfully performed in states which authorize such marriages.)
(emphasis by the Court).
Secondly, the rule espoused in the cases Defendants cite applies when the assertion is
made that a party is seeking to apply a foreign states law to litigation in the forum state but the
party lacks a significant set of contacts with the foreign state. For instance, in Allstate Ins. Co. v.
Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981), Hagues husband was killed in a
motorcycle wreck in Wisconsin just over the border with Minnesota. The operators of both
vehicles were Wisconsin residents (as was Mr. Hague). Mr. Hague worked in Minnesota but
lived about one and one-half miles away, which happened to be in Wisconsin.
32

Neither operator of each vehicle carried valid insurance. However, Mr. Hague had a
policy issued by Allstate covering three other vehicles he owned each carried uninsured
motorist (UM) coverage. After the wreck but before filing suit, Mrs. Hague moved to Red Wing,
Minnesota. She later married a Minnesota resident and established her new residence in
Minnesota. She was also appointed a personal representative of Mr. Hagues estate.
Mrs. Hague then brought an action in Minnesota District Court seeking a declaration
under Minnesota law that she could stack the UM coverage on Mr. Hagues vehicles (something
she could not do under Wisconsin law). Allstate countered that Wisconsin law should govern
because the policy was delivered in Wisconsin, the wreck occurred in Wisconsin, and all persons
involved were Wisconsin residents at the time of the wreck. The District Court ruled for Mrs.
Hague, finding Minnesotas choice-of-law rules required the application of Minnesota law. The
Minnesota Supreme Court affirmed. On review, the Supreme Court of the United States
(Brennan, J) said:
It is not for this Court to say whether the choiceoflaw analysis
suggested by Professor Leflar is to be preferred or whether we would make the
same choiceoflaw decision if sitting as the Minnesota Supreme Court. Our sole
function is to determine whether the Minnesota Supreme Courts choice of its
own substantive law in this case exceeded federal constitutional limitations.
Implicit in this inquiry is the recognition, long accepted by this Court, that a set of
facts giving rise to a lawsuit, or a particular issue within a lawsuit, may justify, in
constitutional terms, application of the law of more than one jurisdiction. As a
result, the forum State may have to select one law from among the laws of several
jurisdictions having some contact with the controversy.

Hague, at 307-308, 101 S.Ct. at 637 (citations omitted).The Court reiterated that its choice-of-
law jurisprudence traditionally required the Court to focus on the contacts of the State, whose
law was applied, with the parties and with the occurrence or transaction giving rise to the
litigation. Id., at 308, 101 S.Ct. at 638. The Court noted:
33

This Court has taken a similar approach in deciding choiceoflaw cases
under both the Due Process Clause and the Full Faith and Credit Clause. In each
instance, the Court has examined the relevant contacts and resulting interests of
the State whose law was applied. See, e. g., Nevada v. Hall, 440 U.S. 410, 424, 99
S. Ct. 1182, 1190, 59 L.Ed.2d 416 (1979). Although at one time the Court
required a more exacting standard under the Full Faith and Credit Clause than
under the Due Process Clause for evaluating the constitutionality of choiceof
law decisions, see Alaska Packers Assn. v. Industrial Accident Commn, 294 U.S.
532, 549550, 55 S. Ct. 518, 524525, 79 L.Ed. 1044 (1935) (interest of State
whose law was applied was no less than interest of State whose law was rejected),
the Court has since abandoned the weighingofinterests requirement. Carroll v.
Lanza, 349 U.S. 408, 75 S.Ct. 804, 99 L.Ed. 1183 (1955); see Nevada v. Hall,
supra; Weintraub, Due Process and Full Faith and Credit Limitations on a
States Choice of Law, 44 Iowa L.Rev. 449 (1959). Different considerations are of
course at issue when full faith and credit is to be accorded to acts, records, and
proceedings outside the choiceoflaw area, such as in the case of sister state
court judgments.

Id., at 308 n. 10, 101 S.Ct. At 638 n. 10. Thus, Hague is a classic choice of law case, not a
Full Faith and Credit clause case, and as Justice Brennan explained, the inquiry here requires
different considerations from those in a choice of law case.
In Sun Oil Co. v. Wortman, 486 U.S. 717, 108 S.Ct. 2117 (1988) (cited in Dkt. 78 p. 40),
the issue was application of the statutes of limitations of other states to an action in Kansas,
where the Kansas 5-year statute permitted plaintiffs claim for interest on previously suspended
gas royalties. The narrow holding of Sun Oil, as described by Justice Scalia, was that the
Constitution does not bar application of the forum States statute of limitations to claims that in
their substance are and must be governed by the law of a different State. Sun Oil, 108 S.Ct. at
2121. That is, litigation in Kansas that applied the substantive law of other states was governed
by the procedural law of Kansas, including the statute of limitations. Contrary to Defendants
assertion, then, Sun Oil does not meaningfully inform the inquiry before this Court.
The remaining cases Defendants cite suffer from the same difficulty they are, in effect,
asking this Court to decide apples using oranges. Again, this faulty analysis was suggested
34

by the dubious law review article upon which Defendants place much stock. (Dkt. 78 p. 41, n. 7).
This Court should reject this contention and stay on the trail of reason in deciding this matter.

C. A Marriage Determination is Subject to Full Faith and Credit
Defendants contend that marriage is not a judgment for which recognition is
appropriate under the Full Faith and Credit Clause. (Dkt. 78 pp. 42-44). Defendants essentially
contend that Plaintiffs seek to expand the reach of the Full Faith and Credit Clause into broad
areas, such as licensing, and cite to the law review article of dubious authority in support of this
view. The Court should not be persuaded by this argument.
Article IV, 1, of the United States Constitution provides, Full Faith and Credit shall be
given in each State to the public Acts, Records, and judicial Proceedings of every other State.
(Emphasis added). Thus, it is not only the judgments but the public acts and records of each
state that this Clause requires receive recognition in every other state.
Marriage is on one level a public act. It is also memorialized by public records, namely
an application and a license. Thus, states and commonwealths regularly give out-of-state
marriages full faith and credit even if that marriage may not be valid if entered into in the forum
state. See, e.g., Bangaly v. Baggiani,--- N.E.3d ----, 2014 WL 4794848 (Ill. App. 1 Dist. 2014)
(noting that while proxy marriages are not valid under Illinois law, they are given full faith and
credit by Illinois courts when contracted in other jurisdictions; court held proxy marriage valid in
Mali was valid in Illinois); Johnson v. Lincoln Square Props., Inc., 571 So.2d 541, 543 (Fla. 2d
DCA 1990) (requiring a trial court to give full faith and credit to an out-of-state common law
marriage in a claim for consortium); Compagnoni v. Compagnoni, 591 So.2d 1080, 108182
(Fla. 3d DCA 1991) (requiring a trial court to recognize out-of-state common law marriage when
35

distributing assets in a divorce proceeding); Anderson v. Anderson, 577 So.2d 658, 660 (Fla. 1st
DCA 1991) (requiring a trial court to give credit to a Georgia common-law marriage in a
dissolution proceeding). See also Obergefell v. Wymyslo, 962 F.Supp.2d 968 (S.D. Ohio 2013)
(under the Constitution of the United States, courts must recognize valid out-of-state marriages if
valid in the state performed, and if not authorized nor validly performed under the law of the
forum state).
The Court should also not be persuaded by the Defendants contention that giving full
faith and credit to a marriage is akin to recognizing a law license, a hunting license or a license to
carry a firearm. Marriage is more than that. It is a public act, and in some states like South
Carolina may be valid without a license or even a public ceremony through establishment of a
common law marriage. Cf. Henry v. Himes, --- F.Supp.2d ---- n. 24, 2014 WL 1418395 (S.D.
Ohio 2014) (discussing application of the Full Faith and Credit Clause to public acts as well as
judgments, and noting that while Section 2 of DOMA was not before the court, the implications
of todays ruling speak for themselves, citing Obergefell).
This case is about this State giving force to the validity of a marriage that is valid in
another jurisdiction. If this was not compelled under the Full Faith and Credit clause, then South
Carolinas adoption of anti-recognition provisions was completely unnecessary and thus
meaningless. And post-Windsor, courts have nearly uniformly held that such anti-recognition
provisions, which are aimed solely at precluding a state from giving full faith and credit to a
marriage that is validly entered elsewhere, suffer the same constitutional infirmity described in
Windsor, Lawrence, and Loving.
Some courts find they need not reach this issue because the provisions under attack are
constitutionally flawed. See Bourke v. Beshear, 996 F.Supp.2d 542, 547 n. 9 (W.D.Ky. 2014)
36

(declining to reach plaintiffs constitutional challenge to Section 2 of DOMA, finding it
unnecessary to the disposition of the case). However, Plaintiffs are entitled to have this Court
declare that their marriage, which was entered in the District of Columbia and which is a valid
public act in that venue, must be given full faith and credit in South Carolina.

D. Section 2 of DOMA cannot trump Constitutional Protections Afforded by the
Fourteenth Amendment or the Full Faith and Credit Clause of article IV, 1
of the United States Constitution

Section 2 of the Defense of Marriage Act (DOMA) provides:
No State, territory, or possession of the United States, or Indian tribe, shall
be required to give effect to any public act, record, or judicial proceeding of any
other State, territory, possession, or tribe respecting a relationship between
persons of the same sex that is treated as a marriage under the laws of such other
State, territory, possession, or tribe, or a right or claim arising from such
relationship.

28 U.S.C.A. 1738C. This provision purports to allow[] States to refuse to recognize same-sex
marriages performed under the laws of other States. U.S. v. Windsor, __ U.S. __, 133 S. Ct.
2675, 2682-83, 186 L. Ed.2d 808 (2013).
Defendants contend that Congress enacted Section 2 of DOMA in response to a
perceived threat to state sovereignty posed by the potential misapplication of the Full Faith and
Credit clause in the context of out-of-state same-sex marriage.... (Dkt. 78 p. 44). Defendants
claim, in conclusory fashion, [t]herefore, under the terms of this section, unchallenged in
Windsor, the State of South Carolina is not required to recognize the DC marriage. (Dkt. 78 p.
44). The Court should not find this argument persuasive.
Congress may not authorize a state to violate the Fourteenth Amendment, and Courts
have uniformly rejected the precise argument the Defendants make here. See Kitchen v. Herbert,
755 F.3d 1193, 1213 n. 6 (10th Cir. 2014) (Appellants contend that 2 of DOMA forecloses
37

any challenge to the nonrecognition provisions of Amendment 3.... Because we conclude that
marriage is a fundamental right and the states arguments for restricting it to opposite-sex
couples fail strict scrutiny, appellants arguments regarding 2 of DOMA also fail on the merits.
Congress cannot authorize a state to violate the Fourteenth Amendment.); De Leon v. Perry,
975 F.Supp.2d 632, 661 (W.D. Tex. 2014) (Whatever powers Congress may have under the Full
Faith and Credit Clause, Congress does not have the power to authorize the individual States to
violate the Equal Protection Clause, citing to Graham v. Richardson, 403 U.S. 365, 382, 91 S.
Ct. 1848, 29 L.Ed.2d 534 (1971)). See also Latta v. Otter, ___ F.3d ___, 2014 WL 4977682 (9th
Cir. 2014) (slip at 25) (noting the arguments based upon federalism principles, the public
policy exception to the Full Faith and Credit clause, and Section 2 of DOMA fail to consider
that neither Congress nor a State can validate a law that denies the rights guaranteed by the
Fourteenth Amendment, citing Saenz v. Roe, 526 U.S. 489, 508, 119 S. Ct. 1518, 143 L.Ed.2d
689 (1999)). Accord Obergefell v. Wymyslo, 962 F.Supp.2d 968, 981 n. 9 (S.D. Ohio 2013) (the
Court stated affirmatively that Section 2 of DOMA does not provide a legitimate basis for
otherwise constitutionally invalid state laws, like Ohios marriage recognition bans, no matter
what the level of scrutiny. Although Section 2 of DOMA is not specifically before this Court, the
implications of todays ruling speak for themselves.); Henry v. Himes, --- F.Supp.2d ---- n. 24,
2014 WL 1418395 (S.D. Ohio 2014) (same, quoting Obergefell).
As the District Court stated in Latta:
It is true federalism favors preserving a states right to choose policies
uniquely suited to the preferences of its citizens. By creating a system with both
state and federal governments, the Framers [of the Constitution] thus ensured
that powers which in the ordinary course of affairs, concern the lives, liberties,
and properties of the people were held by governments more local and more
accountable than a distant bureaucracy. Natl Fedn of Indep. Bus. v. Sebelius,
U.S. , 132 S.Ct. 2566, 2578, 183 L.Ed.2d 450 (2012) (quoting The
38

Federalist No. 45, at 293 (J. Madison)). Thus, a single courageous state may, if
its citizens choose, serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country. New State Ice Co. v.
Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J.,
dissenting). Windsor upheld this principle by invalidating the federal man-woman
marriage definition, in part, because of its unusual deviation from the federal
governments usual deference to state domestic relations laws. 133 S.Ct. at 2693.

However, States are not the sole intended beneficiaries of federalism.
Bond v. United States, U.S. , 131 S.Ct. 2355, 2364, 180 L.Ed.2d 269
(2011). Federalism has another dimension, one that secures to citizens the
liberties that derive from the diffusion of sovereign power. Coleman v.
Thompson, 501 U.S. 722, 759, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)
(Blackmun, J., dissenting).

Federalism also protects the liberty of all persons within a
State by ensuring that laws enacted in excess of delegated
governmental power cannot direct or control their actions. By
denying any one government complete jurisdiction over all the
concerns of public life, federalism protects the liberty of the
individual from arbitrary power. When government acts in excess
of its lawful powers, that liberty is at stake.

Bond, 131 S.Ct. at 2364 (citation omitted). Federalism is not just a bulwark
against federal government overreach; it is also an essential check on state power.

For that reason, federalism is no answer where, as here, individuals
claim their state government has trampled their constitutional rights. Indeed,
Windsor also recognizes the transcendent quality of individual constitutional
rights, even when those rights conflict with a states traditional sovereign
authority. State laws defining and regulating marriage, of course, must respect
the constitutional rights of persons, see, e.g., Loving.... Windsor, 133 S.Ct. at
2691 (emphasis added). As other courts have recognized, Windsors citation to
Loving for this proposition is a disclaimer of enormous proportions. Bishop v.
U.S., 962 F.Supp.2d 1252, 1279 (N.D.Okla.2014). In Loving, Virginias sovereign
authority over marital relations could not save the States anti-miscegenation
laws. And, just as in Loving, Idahos right to regulate domestic relations is subject
to the paramount rights of its citizens. That is the way of our federal system.

Latta, 2014 WL 1909999 (slip at 26). The Fourth Circuit is in accord. Bostic, 760 F.3d at 379-80
(neither Virginias federalism-based interest in defining marriage nor our respect for the
39

democratic process that codified that definition can excuse the Virginia Marriage Laws
infringement of the right to marry.).
Accordingly, this Court should follow the reasoning of these other cases and reject
Defendants argument that Section 2 of DOMA permits the State to refuse to give recognition to
their marriage in the District of Columbia.

40

CONCLUSION
The Defendants invite this Court to turn against the tide of change that is rising across
this Nation. The Defendants first offer the Court a supposed safe harbor, a means for avoiding
the heavy rowing the tide of change requires. Alternatively, the Defendants declare that there is
no tide of change at all, and that the Courts throughout this Country, including our own Fourth
Circuit, may be ignored so as to render judgment for them. This Court should decline the
Defendants invitation. Instead, the Court should rule in accordance with every federal appellate
court that has addressed these issues, including the Fourth Circuit.
For the reasons stated here and in Plaintiffs Motion for Summary Judgment, this Court
should deny the Defendants Motion for Judgment on the Pleadings in its entirety.
Respectfully Submitted,

By: /s/ John S. Nichols
John S. Nichols (Federal ID No. 02535)
Bluestein, Nichols, Thompson & Delgado,
LLC
1614 Taylor Street
Columbia, South Carolina 29201
(803) 779-7599
Facsimile: (803) 771-8097)
jsnichols@bntdlaw.com

Laura W. Morgan
Admitted Pro Hac Vice
Family Law Consulting
108 5th Street, SE, #204
Charlottesville, VA 22902
(434) 817-1880
Facsimile: (434) 817-1844
goddess@famlawconsult.com
Carrie A. Warner (Federal ID No. 11106)
Warner, Payne & Black, LLP
1531 Blanding Street
Post Office Box 2628
Columbia, South Carolina 29201
(803) 799-0554
Facsimile: (803) 799-2517
carriewarner@wpb-law.net

Columbia, South Carolina
October 31, 2014
ATTORNEYS FOR PLAINTIFFS


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IN THE UNITED STATES DISTRICT COURT

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