Você está na página 1de 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA


COLUMBIA DIVISION

Katherine Bradacs and Tracie Goodwin, ) Civil Action No. 3:13-cv-02351-J MC
)
Plaintiffs, )
)
v. ) MEMORANDUM IN OPPOSITION TO
) PLAINTIFFS MOTION FOR
Nimrata (Nikki) Randhawa Haley, in her ) SUMMARY J UDGMENT
official capacity as Governor of South )
Carolina; Alan M. Wilson, in his official )
Capacity as Attorney General, )
)
Defendants. )
_____________________________ ______ )


Plaintiffs Motion offers no argument that avoids two immediate bars to this suit which is
that they have sued the wrong parties in the wrong Court. They do not address those grounds
because they were raised as defenses in the Defendants subsequently filed Motion for J udgment
on the Pleadings and Memorandum in Support thereof (MJ P Memorandum) the entirety of which
is incorporated by reference. Document No. 78. That Memorandum addresses the following
points among others:
1. Federalism
2. The Eleventh Amendment immunity of the defendants
3. The lack of standing of the Plaintiffs to sue them.
4. Rational basis is the standard of review for Plaintiffs Equal Protection and Due
Process claims.
5. Rational bases exist for The Same-Sex Marriage Restrictions
3:13-cv-02351-JMC Date Filed 10/28/14 Entry Number 79 Page 1 of 7
6. The Full, Faith and Credit Clause does not require recognition of Plaintiffs DC
marriage because it is not a judgment.
Federalism, Eleventh Amendment Immunity and, as to officials comparable to the
Governor and Attorney General, lack of standing were not addressed in Bostic v. Schaefer, 760
F.3d 352 (4th Cir. 2014), but they are dispositive of this case. Although the Defendants MJ P
Memorandum covers those points and the others above, several arguments in Plaintiffs
Memorandum warrant brief additional comment.
A. This Court is not bound by Bostics conclusion that Baker v. Nelson need
not be followed; further, Bostic did not address questions of Federalism
requiring that issues regarding marital status be heard by state courts

The Supreme Courts summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972) is still
the law of the land. As a result, this Court is required to follow the Supreme Courts summary
disposition in Baker for the reasons set forth in Defendants Memorandum in Support of
Defendants motion for judgment on the pleadings. See Hicks v. Miranda, 422 U.S. 332 (1975);
Hogge v. Johnson, 526 F.2d 833 (4
th
Cir. 1975). Federal courts such as the Fourth Circuit and
this Court are required to follow summary dispositions by the Supreme Court until the Supreme
Court concludes otherwise. Hicks, supra.
Moreover, this Court should dismiss this action, based upon overriding principles of
federalism. Because this case seeks to decide the core question of two peoples marital status, it
belongs in state court, rather than in federal court. As only recently stated in United States v.
Windsor, 133 S.Ct. 2675, 2691 (2013), the federal courts, as a general rule, do not adjudicate
marital status even where there might otherwise be a basis for federal jurisdiction.
Indeed, Elk Grove United School Dist. v. Newdow, 542 U.S. 1, 17 (2004) is strongly
supportive of this federalism analysis. Newdow was a case clearly involving a federal question
2
3:13-cv-02351-JMC Date Filed 10/28/14 Entry Number 79 Page 2 of 7
a claim that recitation of the Pledge of Allegiance violated the Establishment Clause with respect
to Petitioners daughter, by using the phrase under God. The Supreme Court noted that
Newdows parental status was defined by California domestic relations law. 542 U.S. at 16.
(emphasis added). Thus, the Court concluded that [w]hen the hard questions of domestic
relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand
rather than to reach out to resolve a weighty question of federal constitutional law. 542 U.S. at
17 (emphasis added). See also Ankenbrandt v. Richards, 504 U.S. 609, 716 (Blackman, J .
concurring) [The core of domestic relations adjudication involves declarations of status, e.g.
marriage, annulment, divorce, custody and paternity.].
J ustice Stevens, writing for the Court in Newdow, recognized there are certain occasions
when a federal court absolutely must intercedewith respect to domestic relations issues, such as
those involving racial classifications. However, Newdow noted that such circumstances are
indeed extraordinary and rare. According to J ustice Stevens,
. . . [w]hile rare instances arise in which it is necessary to answer a substantial
federal question that transcends or exists apart from the family law issue, see e.g.
Palmore v. Sidoti, 446 U.S. 429, 432-434 . . . (1984), in general it is appropriate
for the federal courts to leave delicate issues of domestic relations to the state
courts.

542 U.S. at 13 (emphasis added).


B. As to issues which Bostic addressed, Bostic was wrongly decided and the
Defendants, respectfully, argue against precedent

[A] non-frivolous argument for a change in law is certainly an appropriate argument to
this Court. The Court, however, must follow the established precedent of this Circuit. United
States v. Williams, No. 4:12-CR-00969-RBH, 2014 WL 971749, at *5 (D.S.C. Mar. 12, 2014).
See also, Rule 11(b)(2), FRCP (Non-frivolous argument for modifying, or reversing existing
3
3:13-cv-02351-JMC Date Filed 10/28/14 Entry Number 79 Page 3 of 7
law or for establishing new law). As discussed in Defendants MJ P Memorandum, the
dissenting opinion of J udge Niemeyer in Bostic correctly addressed the constitutional issues in
that case. Defendants arguments in their MJ P Memorandum against the Bostic precedent are
intended to preserve those arguments for any future appellate review.
C. Rational basis review should apply
Plaintiff cites Hamilton v. Board of Trustees of Oconee County, 282 S.C. 519, 524, 319
S.E. 2d 717, 720 (Ct. App. 1984) for the purpose of applying strict scrutiny. That case stated
that the right of freedom of choice in marriage relations is a fundamental right, and any law or
policy restricting this choice is subject to strict scrutiny. That statement does not benefit
Plaintiffs because marriage is inherently limited to opposite sex relationships.
The bans on same-sex marriage do not restrict freedom of choice in marriage because
same-sex relationships have never been an element of marriage. Loving v. Virginia, 388 U.S. 1
(1967)) struck down a J im Crow ban on interracial marriage that was superimposed on marital
law. Unlike having an opposite sex relationship that had always been an element of marriage,
race had never been a requirement of marriage before J im Crow.
Plaintiff has not recited one case prior to the recent spate of same-sex marriage decisions
in which a court found that marriage encompassed relationships other than a single man and a
single female. Therefore, Boddie v. Connecticut, 401 U.S. 371, (1971) regarding court fees as a
barrier to divorces of indigents, and Turney v Safley, 482 U.S. 78 (1987) concerning marriage of
inmates (and applying a reasonableness standard), have no application to this analysis.
D. Rational bases support South Carolinas ban on same-sex marriage
These grounds were reviewed in the Defendants MJ P Memorandum including
encouraging opposite-sex couples to raise children produced by their sexual union together.
4
3:13-cv-02351-JMC Date Filed 10/28/14 Entry Number 79 Page 4 of 7
Plaintiffs argue that protection of naturally procreative relationships is too attenuated to
support a prohibition on same-sex marriage, but that purpose of legislation providing for
opposite-sex marriage is historic
1
and significant. Romer v. Evans, 517 U.S. 620, 635 (1996),
cited by Plaintiffs, was not a same-sex marriage case and did not suggest that procreation was a
purpose behind the Colorado law at issue which prohibited legislative and other actions designed
to protect homosexuals from discrimination.
Plaintiffs also contend that South Carolinas ban on recognition of out-of-state same-sex
marriages is a denial of equal protection and rely, in part, on U.S.v. Windsor, 133 S.Ct. 2675
(2013). That decision does not support Plaintiffs argument because it was based upon
DOMAs unusual deviation from the usual [federal] tradition of recognizing and accepting state
definitions of marriage . . . . South Carolina, through its same-sex marriage prohibitions, is
simply defending its prerogative as a state to define marriage, as it always has, as an opposite sex
union. In defending its historic definition of marriage dating to colonial times and the common
law of England, South Carolina is not acting out of animis whatsoever. Our state is acting within
its authority that Windsor recognized and for rational reasons discussed in the Memorandum in
Support of J udgment on the Pleadings.
E. The Full Faith and Credit Clause does not apply to Plaintiffs claims
As discussed in the Defendants MJ P Memorandum, Plaintiffs DC Marriage is not a
judgment to which this clause applies. Therefore, the judgment cases Plaintiffs cites are not
applicable. Baker by Thomas v. Gen. Motors Corp., 522 U.S. 222, 239 (1998); Williams v. North
1
As noted in the Defendants MJ P Memorandum, marriage is necessary not only to unite [ a
man and a womans] Care and Affection, but also necessary to their common Off-spring, who
have a Right to be nourished, and maintained by them, till they are able to provide for
themselves. 2 J ohn Locke, Second Treatise of Government: Of Civil Government 78, in The
Works of J ohn Locke Esq. 180 (London, Churchill 1714).
5

3:13-cv-02351-JMC Date Filed 10/28/14 Entry Number 79 Page 5 of 7
Carolina, 317 U.S. 287 (1942) ; Graham v. Richardson, 403 U.S. 365, 382 (1971). The
following cases that Plaintiff cites, are not Full, Faith and Credit Clause cases. Obergefell v.
Wymyslo, 962 F. Supp. 2d 968 (2013), De Leon v. Perry, 975 F. Supp. 2d 632, 661 (W.D. Tex.
2014), Henry v. Himes, 2014 WL 1418395 (S.D. OH, 2014(issue not reached),; Widenhouse v.
Colson, 405 S.C. 55, 747 S.E. 2d 188 (2013) and Windsor.
CONCLUSION
This case is not properly presented to this Court as discussed in the MJ P Memorandum.
The Plaintiffs Motion for Summary J udgment should be denied for reasons of Federalism,
Eleventh Amendment immunity and lack of standing to sue the named defendants and the other
grounds discussed in that Memorandum.
Respectfully submitted,
ALAN WILSON
Attorney General
Federal ID No.10457

ROBERT D. COOK
Solicitor General
Federal ID No. 285
Email: BCOOK@SCAG.GOV

/s/ J . Emory Smith, J r.
J . EMORY SMITH, J R.
Deputy Solicitor General
Federal ID No. 3908
Email: ESMITH@SCAG.GOV

IAN P. WESCHLER
Assistant Attorney General
Federal ID No. 11744

BRENDAN J . MCDONALD
Assistant Attorney General
Federal ID No. 10659
[address on next page]

6
3:13-cv-02351-JMC Date Filed 10/28/14 Entry Number 79 Page 6 of 7
Office of the Attorney General
Post Office Box 11549
Columbia, South Carolina 29211
Phone: (803) 734-3680
Fax: (803) 734-3677

Counsel for Defendants
October 28, 2014 Governor and Attorney General

7
3:13-cv-02351-JMC Date Filed 10/28/14 Entry Number 79 Page 7 of 7