1

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA


PAUL HARD, spouse and next best friend of
CHARLES DAVID FANCHER, deceased;

Plaintiff,

v.

ROBERT BENTLEY, in his official capacity as
Governor of the State of Alabama; LUTHER
JOHNSON STRANGE, III in his official capacity
as Attorney General of the State of Alabama; PAT
FANCHER

Defendants.





Civil Action No. 2:13-cv-922-WKW







PLAINTIFFS OPPOSITION TO GOVERNOR BENTLEYS MOTION TO DISMISS ON
THE BASIS THAT HE PURPORTEDLY HAS NO AUTHORITY IN CONNECTION
WITH ALABAMAS MARRIAGE RESTRICTIONS


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A. Introduction
Governor Bentley asks to be dismissed from this litigation because, he now says, [h]e
has no direct enforcement responsibilities with respect to Alabamas marital and domestic
relations laws. See Motion to Dismiss the Claims Against Governor Bentley (Dkt. No. 48)
(Motion to Dismiss) at 3. This is a surprising basis for a dismissal motion. For the last four
years, Governor Bentley has publicly and emphatically stated precisely the opposite: that he
does have the authority and will exercise that authority to enforce Alabamas marriage
restrictions. He recently confirmed this fact in this litigation by admitting without qualification
Plaintiffs factual allegation that [b]y virtue of his position, Governor Bentley maintains, and
has exercised, enforcement authority in connection with the Sanctity Laws. See Complaint
(Dkt. No.1) 16; see also Answer of Governor Bentley and Attorney General Strange (Dkt. No.
18) 16 (Answer).
Plaintiffs allegation that Governor Bentley has maintained and exercised enforcement
authority in connection with the marriage restrictions (including through an attempt to prevent
same-sex spouses of members of the Alabama National Guard from accessing benefits to which
they were entitled under federal law) taken together with the Governors unqualified admission
of that allegation, make dismissal improper. The pleadings, at the very least, make plausible
the proposition that Plaintiff will be able to prove his claims against Governor Bentley and that
the Governor will be unable to establish Eleventh Amendment immunity. Cf. Ashcroft v. Iqbal,
556 U.S. 662, 682 (2009) (examining whether allegations in a complaint made a particular
element of claim sufficiently plausible).
But Governor Bentley also relies upon matters outside the pleadings in order to put his
own spin on Plaintiffs allegations. See Motion to Dismiss at 4 n.1 (citing news reports outside
the Complaint to assert that one of Plaintiffs allegations is flatly contradicted by other news
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reports). At the very least, Defendants evidence, along with the evidence that Plaintiff submits
here, including a still-operative Executive Order precluding the issuance of marriage licenses to
same-sex couples, creates a factual dispute regarding the nature and extent of Governor
Bentleys actual enforcement authority and conduct in connection with those marriage
restrictions. Especially in light of the fact that Governor Bentley initially admitted that he has
the authority necessary to permit him to be named in this case, fairness demands that if the Court
is at all inclined to agree with Governor Bentleys new-found argument, Governor Bentley ought
to be required before invoking Eleventh Amendment immunity to respond to discovery,
including by deposition, to explain the inconsistencies between his prior statements and conduct
and his current litigation position.
B. Plaintiff Named Governor Bentley Because the Governor Repeatedly Has Asserted
That He Has the Authority and Obligation To Enforce Alabamas Marriage
Restrictions

Governor Bentley incorrectly asserts that Plaintiff cites only to the Governors
supreme executive power as the basis for his inclusion in this litigation. That is flat wrong.
Plaintiff filed his Complaint knowing full well that Governor Bentley, to be named as a
defendant, must, by virtue of his office, have some connection with the enforcement of the
allegedly unconstitutional [provision]. See C.M. ex rel Marshall v. Bentley, Case No. 2:13
CV591WKW, 2014 WL 1378432 (M.D. Ala. April 8, 2014) (Watkins, C.J.) (quoting Luckey
v. Harris, 860 F.2d 1012, 1015 (11th Cir. 1988) (quoting Ex Parte Young, 209 U.S. 123, 157
(1908)). That is why Plaintiff decidedly did not rely only on the fact that the Governor holds
supreme executive power. Rather, Plaintiff also alleged that, [b]y virtue of his position,
Governor Bentley maintains and has exercised, enforcement authority in connection with the
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Sanctity Laws. See Compl. 16; cf. Luckey, 860 F.2d at 115 (state official subject to suit if
responsible for enforcing or implementing the challenged law).
Plaintiff had good reason to make (and Governor Bentley had good reason to admit) the
factual allegation that the Governor maintains and has exercised enforcement authority. In the
four years since running for office in 2010, Governor Bentley has repeatedly and expressly
represented to the people of Alabama that, as Governor, he has the formal authority to enforce
Alabamas law and constitutional provision prohibiting the recognition of same-sex marriage,
and that he will exercise that authority. His 2010 campaign website announced:
I will ensure that Alabama does not follow the trend of allowing gay
marriages or civil unions, and I will protect our states right to define
marriage as between one man and one woman.

See Declaration of David C. Dinielli in Opposition to Governor Bentleys Motion to Dismiss
(Dinielli Decl.) Ex. A (Robert Bentley for Governor 2010 Family and Social Values)
(emphasis added).
More recently, on the very day this lawsuit was announced, Governor Bentley publicly
confirmed his intent to continue to use his power as Governor to resist marriage equality and
enforce Alabamas marriage restrictions:
Governor Bentley will fight the merits of this lawsuit, [his
spokesperson] said. Like most Alabamians, the Governor strongly
believes in the traditional definition of marriage, as being between a
man and a woman. He will work everyday [sic] to continue to protect
the sanctity of marriage in Alabama.

See Dinielli Decl. Ex. B (Alabama Man Files Federal Lawsuit Seeking Recognition of Same-
Sex Marriage Performed in Massachusetts (February 12, 2014)) (emphasis added).
Governor Bentley has made clear that his intention to enforce the marriage restrictions
flows not from some personal predilection or set of personal beliefs, but rather from his official
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obligations as Governor. He is reported in May of this year to have stated, in connection with
the marriage restrictions:
I have to defend the constitution, Bentley said. . . . I am the
executive for the state and I have to defend the laws of the state. . . .
Whatever the people vote on, I support. I believe in the peoples
right to vote and this is how they feel, so I support the people.

See Dinielli Decl. Ex. C (Gov. on AL Gay Marriage Ban: This Is How the People Feel (May
21, 2014)) (emphasis added).
When a separate case challenging Alabamas marriage restrictions was filed in the
Northern District of Alabama, Governor Bentley doubled down:
It [the constitutional amendment banning same-sex marriage] law
was voted on 81 percent by the people of the state, Bentley said. So
whatever the laws are I have to execute.

See Dinielli Decl. Ex. D (Marriage Says We Are Family: Birmingham Women Fight to Force
Alabama to Recognize Their Massachusetts Marriage (June 10, 2014)) (emphasis added).
Indeed, Governor Bentley apparently believes that the obligation to enforce the marriage
restrictions is a central part of his job:
I personally believe in marriage between a man and a woman,
Bentley says. I dont know what will happen as far as judges are
concerned but whatever the laws are, my job is to uphold those laws.

See Dinielli Decl. Ex. E (How Do Robert Bentley and Parker Griffith Compare? (May 22,
2014)) (emphasis added).
C. Governor Bentley Has Taken at Least One Affirmative Act To Enforce Alabamas
Marriage Restrictions

Governor Bentley has done more than just make pronouncements (and make a judicial
admission) regarding his enforcement authority. He has taken at least one official action in his
capacity as Governor in which he has attempted to exercise his authority to enforce Alabamas
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marriage restrictions. Soon after the United States Supreme Court held the federal Defense of
Marriage Act to be unconstitutional in 2013, the federal government directed state national
guards to extend spousal benefits to same-sex spouses. Governor Bentley initially announced
that he would refuse to permit the Alabama National Guard to do so, apparently on the basis of
his belief that he was obliged to enforce Alabamas Sanctity Laws. According to news reports,
he announced, When theyre under my command we will obey Alabama state law. See
Compl. 16.
Governor Bentley (relying on matters outside the Complaint), now asserts that this
allegation (which he initially admitted in his Answer) is flatly contradicted by other news
reports. See Motion to Dismiss at 4 n.1 (citing news reports). These articles reflect that, despite
his initial pronouncement that the Alabama National Guard would not comply with the federal
directive, Governor Bentley changed his mind, and decided to permit the Alabama National
Guard to extend benefits to same-sex spouses. See id.
These additional articles do not contradict the assertion that Governor Bentley has
exercised authority in connection with Alabamas marriage restrictions; they confirm it. First,
Governor Bentley decided to use his authority to enforce Alabamas marriage restriction; then he
apparently changed his mind and decided that the federal directive trumped Alabamas
restrictions. These are two actions (rather than one) showing that the Governor has some
connection to the unconstitutional marriage restrictions regarding who should be deemed a
spouse within Alabamas borders. See Luckey, 860 F.2d at 1015 (named official must have
some connection to the unconstitutional act).
1


1
Governor Bentley has not submitted a declaration explaining what he did or did not do in
connection with the extension of benefits to same-sex spouses of members of the Alabama
National Guard. Instead, he initially admitted the truth of a news report alleged in the
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D. At Least One Prior Governor Also Took Official Action To Prevent the Recognition
of Same-Sex Marriages

Governor Bentley is not the first Alabama Governor to take formal action to prevent the
recognition of same-sex marriages. In August 1996, prior to the enactment of the law or
constitutional amendment challenged in this case, then-Governor Fob James, Jr. signed
Executive Order Number 1996-24. That Executive Order was issued in response to a then-
pending Hawaii case challenging that states marriage restrictions. See Dinielli Decl. Ex. F at 1
(Executive Order). The Executive Order was premised on the assertion that the Governor . . . is
given the authority and it is his duty to act to enforce the laws . . . in every portion of the State.
See id. at 1.
2
Based on that authority, Governor James expressly directed Alabama probate
judges and others not to issue marriage licenses to, or recognize marriages between, people of
the same sex:
[U]ntil all judicial processes are exhausted, or until such time as the
legislature acts on the question of same-sex marriages, no license shall
be issued by any probate judge or any other person . . . for the
marriage of persons of the same sex . . . . A marriage in another state
or foreign jurisdiction between persons of the same sex . . . shall not
be recognized as a valid marriage. . . .

It shall be the responsibility of all officers and employees of all
departments, agencies, boards, commissions, authorities, task forces,
and divisions of the executive branch of State Government, and all
political subdivisions thereof, to comply with and enforce the terms
and provisions of this Executive Order.

Complaint, and then simply submitted additional news reports (which themselves are hearsay)
that he argues contradict the admitted allegation. The state of the record on this point simply
confirms that, if Governor Bentley wants to invoke Eleventh Amendment immunity, he should,
at the least, be willing in this case to provide discovery regarding his effort to enforce the
marriage restriction. See infra section D.
2
Governor Jamess Executive Order also asserted that it was justified because Gods law
prohibits members of the same sex from having sexual relations with each other, see Dinielli
Decl. Ex. F (Executive Order) at 2, a plainly unconstitutional justification for state action
restricting a fundamental right. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003), Bostick v.
Schaefer, Case Nos. 141167, 141169, 141173., 2014 WL 3702493 (4th Cir. July 28, 2014).
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Dinielli Decl. Ex. F (Executive Order) at 3. So by this Executive Order, then-Governor James
(1) prohibited probate judges from issuing marriage licenses to same-sex couples; (2) declared
that out-of-state same-sex marriages are to be disregarded; and (3) directed every authority and
division of the executive branch to enforce the terms of the Executive Order.
Despite the broad and authoritative actions taken by Governor James to prevent
recognition of same-sex marriage, Governor Bentley now asserts in his motion that, in contrast to
Governor James, [h]e has no direct enforcement responsibilities with respect to Alabamas
marital and domestic relations laws. See Motion to Dismiss at 3. In the years since Governor
Jamess term, however, there have been no relevant changes to the Governors constitutional
authority or to marital and domestic relations law. Governor Bentley makes no effort to explain
what has changed in the law to strip him of the authority exercised by Governor James. Nor
does he explain the basis for any disagreement with former Governor James and the still-
operative Executive Order regarding the extent of the Governors authority as it relates to
preventing same-sex marriage.
3
If Governor James could direct probate judges not to issue
marriage licenses to same-sex couples, then surely Governor Bentley can at the conclusion of
this lawsuit (if Plaintiff prevails) direct that probate judges should issue licenses to same-sex
couples. In this way, Governor Bentley has some connection with the subject marriage
restrictions, and his motion should therefore be denied.


3
In litigation pending in the Northern District of Alabama, Governor Bentley admitted the
issuance of the Executive Order, which has not been amended or modified and remains in effect
today. See Aaron-Brush v. Bentley, Case No. 2:14-CV-01091-RDP (N.D. Ala. 2014) (Dkt. No.
13 (Answer 22, 23) (admitting issuance of Executive Order)). If Governor Bentley believes
that this still-operative Executive Order exceeds his constitutional authority, he should withdraw
it.
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E. At The Least, Governor Bentley Should Provide Discovery, Including Deposition
Testimony, Explaining The Inconsistencies Between His Current Litigation
Assertion and His Past Conduct

As mentioned, Governor Bentley makes no effort to explain why it is that Governor
James had authority to direct who should be permitted to marry and which marriages should
count, but that he, contrary to the still-governing Executive Order, has no direct enforcement
responsibilities with respect to Alabamas marital and domestic relations laws. See Motion to
Dismiss at 3. Nor has Governor Bentley offered any admissible facts to counter the admitted
allegation that he took official action to prevent the Alabama National Guard from extending
benefits to same-sex spouses. Nor has he offered any justification for the inconsistency between
his recent litigation position and his four-year pattern of proclaiming to the public that he will
use his position as Governor to maintain Alabamas marriage restrictions.
The question whether a particular official has some connection to a challenged act is
fact bound, and cannot always be resolved simply by examining relevant constitutional and
statutory provisions without reference to facts. Instead, courts look to the particular officials
actual exercise of supervisory power to determine whether there exists the requisite nexus
between the particular official and the challenged act. See, e.g., Kitchen v. Herbert, --- F.3d ---,
2014 WL 2868044, at *7 (10th Cir. June 25, 2014). Kitchen is the Tenth Circuit case holding
Utahs marriage restrictions to be unconstitutional, and it came to the Tenth Circuit on appeal
from a district court decision made on full record developed on cross-motions for summary
judgment. See Kitchen, 2014 WL 2868044, at *3.
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In evaluating the question whether plaintiffs could sue the Utah Governor,
4
the Tenth
Circuit looked beyond the text of the state constitution and the challenged restrictions to the
Governors actual words and deeds, noting the Governors willingness to exercise his duty to
enforce that states marriage restrictions. See Kitchen, 2014 WL 2862044, at *6. The Court
observed that, among other things, the Utah Governor had himself told state agencies how they
should respond to the district court order holding the marriage restrictions unconstitutional. See
id. at *6. The Court noted that a state official is a proper defendant if, as Governor Jamess
Executive Order and Governor Bentleys words and actions make clear, the official is
responsible for general supervision of the administration by the local . . . officials of a
challenged provision. See id. at *7 (quoting Papasan v. Allain, 478 U.S. 265, 282 n.14 (1986)).
This is so even if 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. See
Kitchen, 2014 WL 2868044, at *7 (quoting Prairie Band Potawatomi Nation v. Wagnon, 476
F.3d 818, 828 (10th Cir. 2007)).
This is a sensible rule; state officials should not be heard to claim they have no
enforcement authority if they have shown a willingness to enforce a law or actually have taken

4
The Tenth Circuit analyzed the Eleventh Amendment question in the course of evaluating
whether the plaintiffs had standing to sue the Utah Governor. Specifically, as the Kitchen court
and others have explained, whether plaintiffs can meet the redressability element of the
standing requirement with respect to a particular government official depends on whether, under
Ex Parte Young, the official has sufficient enforcement authority and therefore can be named as a
defendant. See Kitchen, 2014 WL 2868044, at *4. This is presumably why the Governor also
raises a standing argument in his motion to dismiss. See Motion to Dismiss at 5. Generally
speaking, however, if a government official has sufficient enforcement authority to be sued
under Ex Parte Young, then a plaintiff can satisfy the redressabilty prong of a traditional
standing analysis and name him as a defendant. See Kitchen, 2014 WL 2868044, at *4.
Governor Bentley does not argue otherwise. See Motion to Dismiss at 5 (bases for arguing no
standing are largely the same reasons as arguing for Eleventh Amendment immunity). Thus,
the parties in this case appear to be in agreement that, if Governor Bentley can be named as a
Defendant under Ex Parte Young, Plaintiff has standing to name him as a Defendant.
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steps to do so. Plaintiff submits that the record on this motion easily supports the conclusion that
Governor Bentley has expressed the requisite willingness to enforce Alabamas marriage
restrictions, and actually has taken steps to do so. But if this Court believes that Governor
Bentleys arguments bear weight, Plaintiff submits that, at the least, the Court should permit
discovery into the scope and nature of the Governors authority, and in particular his past
statements and actions suggesting that he does maintain such authority.
Plaintiff is mindful that the discovery cutoff in this case is August 15, 2014. Plaintiff has
not taken discovery into these issues because, until recently, there was no need to do so.
Governor Bentley answered the Complaint on March 10, 2014 admitting without qualification
that he maintains and has exercised sufficient enforcement authority in connection with the
Sanctity Laws to make him a Defendant in this case. He then waited until July 24, 2014 just
three weeks before the discovery cutoff to make his motion for dismissal. Extending the
discovery period for this limited purpose would not require delay of the summary judgment
briefing. Plaintiff could include evidence relevant to the question of Governor Bentleys actual
authority in his response to the Defendants cross-motion for summary judgment, due to be filed
on October 22, 2014. See Dkt. No. 44 (Uniform Scheduling Order) at 1.
5

But Plaintiff submits that it would be fundamentally unfair to permit the Governor,
without any kind of a developed record, to invoke Eleventh Amendment Immunity despite his

5
There is a possibility that some discovery relating to Governor Bentley may need to be
conducted after the August 15 cutoff in any event. The Governor and Attorney General have
refused to respond to an interrogatory asking for Alabamas interests in a law requiring public
schoolchildren be taught that homosexuality is not acceptable, and Plaintiff has filed a motion
to compel. See Dkt. No. 46. Plaintiff also has served a deposition notice on Governor Bentley to
explore the meaning of Governor Bentleys sworn interrogatory response explaining why
Alabama does not permit the recognition of same-sex marriage, and the Governor has moved for
a protective order. See Dkt. No. 51. The resolution of those pending motions may require that
some discovery be completed after the current cutoff.
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public announcements, the still-operative Executive Order, and his conduct in connection with
the extension of benefits to spouses of members of the Alabama National Guard.
F. Conclusion
For all the foregoing reasons, Governor Bentleys Motion to Dismiss should be denied.
In the alternative, Plaintiff requests that the Court permit discovery, including a deposition of
Governor Bentley, into the nature and extent of the Governors efforts to maintain and enforce
Alabamas marriage restrictions.
August 4, 2014 Respectfully submitted,
SOUTHERN POVERTY LAW CENTER

By: /s/ David C. Dinielli
David C. Dinielli* (California Bar No. 177904)
Samuel Wolfe (ASB-2945-E63W)
400 Washington Avenue
Montgomery, Alabama 36104
Telephone: (334) 956-8200
Facsimile: (334) 956-8481
david.dinielli@splcenter.org
sam.wolfe@splcenter.org
*Admitted pro hac vice

(Attorneys for Plaintiff)









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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 4
th
day of August, 2014, I electronically filed the
foregoing document with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to the following counsel of record:
David Bryson Byrne, Jr., Esq.
Office of the Governor
State Capitol
600 Dexter Avenue
Suite NB-05
Montgomery, AL 36130

James William Davis, Esq.
Laura Elizabeth Howell, Esq.
State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, AL 36130

Gabriel Joseph Smith, Esq.
Foundation For Moral Law
1 Dexter Avenue
Opelika, AL 36103


/s/ Tonya White-Evans



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EXHIBIT
A
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EXHIBIT
B
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EXHIBIT
C
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EXHIBIT
D
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EXHIBIT
E
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EXHIBIT
F
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