UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

________________
No. 15-1186
________________
ROSENBRAHN et al.,
Plaintiffs-Appellees,
v.
DAUGAARD, et al.,
Defendants-Appellants.
________________
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
SOUTH DAKOTA, SOUTHERN DIVISION
________________
THE HONORABLE KAREN E. SCHREIER
United States District Court Judge
________________
APPELLANTS REPLY BRIEF
________________
Jeffrey P. Hallem
Ellie J. Bailey
Assistant Attorney General
1302 E. Highway 14, Suite 1
Pierre, SD 57501-8501
Telephone: (605) 773-3215

Attorneys for State Defendants-Appellants

Robert B. Anderson
Justin L. Bell
May, Adam, Gerdes & Thompson, LLP
503 S. Pierre St., P.O. Box 160
Pierre, SD 57501-0160
Telephone: (605) 224-08803

Attorneys for Defendant-Appellant Sherman

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TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES .......................................................... ii
INTRODUCTION ........................................................................ 1
ARGUMENT
I.

The district court erred in asserting jurisdiction over

Plaintiffs claims. ......................................................... 1

II. The district court erred in determining there is a

fundamental right to same-sex marriage. ..................... 3
III. The United States Supreme Courts precedent in Baker
and this Courts precendent in Bruning control. ............ 5
IV. South Dakota marriage laws are constitutional. ............. 8
A. Plaintiffs claim of gender discrimination is
without merit. ....................................................... 8
B. South Dakota marriage laws withstand rational
basis review. ....................................................... 11
C. Changes to South Dakota marriage laws uphold
the traditional definition of marriage. .................. 12
CONCLUSION ......................................................................... 14
CERTIFICATE OF COMPLIANCE ............................................. 17
CERTIFICATE OF SERVICE..................................................... 18

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TABLE OF AUTHORITIES
PAGE

FEDERAL CASES CITED:

Ankenbrandt v. Richards, 504 U.S. 689 (1992) .......................... 2

Baker v. Nelson, 409 U.S. 810 (1972) ........................................ 3
Citizens for Equal Protection v. Bruning, 455 F.3d 859
(8th Cir. 2006) ................................................................ passim
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ...................................................... 8, 9, 11
Craig v. Boren, 429 U.S. 190 (1976) ....................................... 8, 9
Dandridge v. Williams, 397 U.S. 471 (1970) ............................. 11
DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)............. 4, 13, 14
DeCintio v. Westchester County Med., 807 F.2d 304
(2d Cir. 1986) .......................................................................... 9
Ex parte Burrus, 136 U.S. 586 (1890) ........................................ 2
F.C.C. v. Beach Commc'ns, 508 U.S. 307 (1993) ....................... 11
Gregory v. Ashcroft, 501 U.S. 452 (1991) ................................. 11
Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) ........................ 6, 7
Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d 745
(4th Cir 1996) .......................................................................... 9
Latta v. Ottner, 771 F.3d 456 (9th Cir. 2014) ........................... 10
Loving v. Virginia, 388 U.S. 1 (1967) .......................................... 4
Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) ..... 10
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Pennoyer v. Neff, 95 U.S. 714 (1877).......................................... 2

Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996).................... 5, 9
Romer v. Evans, 517 U.S. 620 ................................................... 8
Shelby Cnty., Ala. v. Holder, 133 S.Ct. 2612 (2013) ................... 2
Sosna v. Iowa, 419 U.S. 393 (1975) ......................................... 11
Turner v. Safley, 482 U.S. 78 (1987) .......................................... 4
Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) .. 10
United States v. Windsor, 133 S.Ct. 2675 (2013) .................... 2, 7
Washington v. Glucksberg, 521 U.S. 702 (1997) ......................... 4
Williamson v. A.G. Edwards and Sons, Inc., 876 F.2d
(8th Cir. 1989) ......................................................................... 9
Zablocki v. Redhail, 434 U.S. 374 (1978).................................... 4
STATE CASES CITED:
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) .......................... 3

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INTRODUCTION
This reply brief responds to the arguments set forth in
Plaintiffs-Appellees Brief (hereinafter PB).1 For the reasons set
forth below and those already asserted in Defendants initial brief,
Plaintiffs arguments must be rejected and the district courts
determinations reversed.
ARGUMENTS
I
The district court erred in asserting jurisdiction over
Plaintiffs claims.
Plaintiffs jurisdictional arguments are unpersuasive.
Plaintiffs claims lie outside the jurisdiction of the federal court
under the Tenth Amendment of the United States Constitution and
the domestic relations exception to federal question jurisdiction.
Federalism, protected by the Tenth Amendment, preserves the
integrity, dignity, and residual sovereignty of the States, while
secur[ing] to citizens the liberties that derive from the diffusion of
The same references to the parties and record set forth in
Defendants-Appellants Brief (hereinafter DB) are used here.
Appellants rely on the Statement of the Case and Facts, the
Standard of Review and reassert all arguments presented in its
initial brief.
1

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sovereign power. Shelby Cnty., Ala. v. Holder, 133 S.Ct. 2612,

2623 (2013) (citation omitted). Under this system of dual
sovereignty, the states have the power and authority to define
marriage. Pennoyer v. Neff, 95 U.S. 714, 734-35 (1877) (The State
. . . has absolute right to prescribe the conditions upon which the
marriage relation between its own citizens shall be created[.]);
United States v. Windsor, 133 S.Ct. 2675 (2013) (The states, at the
time of the adoption of the Constitution, possessed full power over
the subject of marriage and divorce . . . [and] the Constitution
delegated no authority to the Government of the United States on
the subject of marriage and divorce.). Importantly, the domestic
relations exception to federal question jurisdiction reserves the
adjudication of marriage and events that follow to the states. See
Ex parte Burrus, 136 U.S. 586, 593-94 (1890) (stating that the
whole subject of the domestic relations of husband and wife,
parent and child, belong to the laws of the States and not to the
laws of the United States); Ankenbrandt v. Richards, 504 U.S. 689,
703 (1992) (noting that the domestic relations exception limits the
federal courts ability to assert jurisdiction over divorce, alimony,
and child custody).
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Plaintiffs argue that jurisdiction is appropriate because they

are challenging the States marriage laws under the Fourteenth
Amendment. PB 13. This ignores Baker v. Nelson, 409 U.S. 810
(1972), wherein the United States Supreme Court dismissed an
appeal of a constitutional challenge to state laws prohibiting samesex marriage for want of a substantial federal question. In the
case that was appealed, Baker v. Nelson, 191 N.W.2d 185 (Minn.
1971), the Minnesota Supreme Court held that state marriage laws
permitting marriage as between only a man and a woman did not
violate the Due Process or Equal Protection Clauses of the
Fourteenth Amendment. Baker, 191 N.W.2d at 186-87. Because
this Court incorporated Baker in Citizens for Equal Protection v.
Bruning, 455 F.3d 859, 870 (8th Cir. 2006), the district court erred
in asserting jurisdiction over Plaintiffs claims.
II
The district court erred in determining there is a fundamental
right to same-sex marriage.
Contrary to Plaintiffs arguments, there is no fundamental
right to same-sex marriage. A fundamental right is one that is
objectively, deeply rooted in this Nations history and tradition, . . .

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and implicit in the concept of ordered liberty, such that neither

liberty nor justice would exist if they were sacrificed[.] Washington
v. Glucksberg, 521 U.S. 702, 720-21 (1997) (citations omitted)
(internal quotation marks omitted). While some States have now
authorized same-sex marriage, these state actions do not establish
that same-sex marriage is objectively, deeply rooted in this Nations
history and tradition. See Glucksberg, 521 U.S. at 720-21.
To date, the Supreme Court has recognized a fundamental
right to marriage only in a traditional opposite-sex context.
Although Windsor recognized a states ability to define marriage, it
did not hold that there is a fundamental right to same-sex
marriage. The district court erred in relying on Loving v. Virginia,
388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), and
Turner v. Safley, 482 U.S. 78 (1987) to find a broader fundamental
right to marriage, including same-sex marriage, because these
cases refer to marriage in the traditional sense. See DeBoer v.
Snyder, 772 F.3d 388, 412 (6th Cir. 2014) (When Loving and its
progeny used the word marriage, they did not redefine the term but
accepted its traditional meaning.).

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III
The United States Supreme Courts precedent in Baker
and this Courts precedent in Bruning control.
Plaintiffs ask this Court to simply disregard this Courts
holding in Bruning that Nebraskas constitutional amendment
upholding the traditional definition of marriage, which is almost
identical to South Dakotas, should receive rational-basis review
under the Equal Protection Clause, rather than a heightened level
of judicial scrutiny. Bruning, 455 F.3d at 865-66. See also
Richenberg v. Perry, 97 F.3d 256, 260 (8th Cir. 1996) (heightened
scrutiny rejected in a due process challenge based on a claim that
homosexuality is a suspect classification). Bruning necessitates
rational basis review here.
Plaintiffs ignore Bruning and its reliance upon Baker by
attempting to differentiate the claims brought in those cases from
those currently before this Court. PB 17-21. However, Bruning and
Bakers applicability to Plaintiffs claims cannot be dissected away.
The claims made in Bruning are not significantly distinct from the
equal protection claims made here. The Bruning plaintiffs, while
not asserting a right to same-sex marriage, were seeking to
overturn the Nebraska Constitutional Amendment restricting
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marriage to a man and a woman based upon alleged sexual

orientation discrimination so they could obtain state legislation
authorizing same-sex marriages or civil unions. Bruning, 455 F.3d
at 865. The equal protection claim brought by Plaintiffs here seeks
to overturn an almost identical State Constitutional Amendment (as
well as other State laws) restricting marriage to a man and a
woman on the basis of sexual orientation discrimination. While the
plaintiffs in the two cases are not identically situated, the equal
protection claims are the same: whether state marriage laws
prohibiting same-sex marriage unconstitutionally treat a class of
persons based upon their sexual orientation differently than other
similarly situated persons. Contrary to Plaintiffs arguments,
Bruning is binding and therefore controls.
Further, Plaintiffs unpersuasively argue that Brunings
references to and reliance upon Baker has no precedential effect. It
is clear that the Courts statements regarding Baker are more than
mere dicta. See Bruning, 455 F.3d at 870-71. Baker is an integral
part of this Courts analysis and holdings in Bruning. Further,
Plaintiffs argument that Supreme Court decisions rendered after
Baker, namely Hollingsworth v. Perry, 133 S.Ct. 2652 (2013), and
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Windsor, 133 S.Ct. 2675 (2013) constitute doctrinal developments

rendering Baker without precedential value is unsupportable based
upon an objective reading of those decisions.
Plaintiffs wishfully over-read both Hollingsworth and Windsor.
In Hollingsworth, the Supreme Court solely relied on the petitioners
lack of standing to dismiss the petition. Hollingsworth, 133 S.Ct. at
2659. This conveys nothing with regard to the Supreme Courts
stance on Bakers continued precedential effect. Without standing,
the Hollingsworth Court had no need to and did not address
additional jurisdictional defects or the merits of the underlying
claims.
Plaintiffs interpretation of Windsor reflects a highly selective
reading for a desired result. Windsor did not invalidate traditional
state marriage definitions, establish a fundamental right to samesex marriage, or apply heightened scrutiny to claims based upon
sexual orientation discrimination. Windsor invalidated a federal law
and reaffirmed the states sovereign power to define and regulate
marriage. Windsor, 133 S.Ct. at 2691 (noting that [t]he states, at
the time of the adoption of the Constitution, possessed full power
over the subject of marriage and divorce . . . [and] the Constitution
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delegated no authority to the Government of the United States on

the subject of marriage and divorce).
Plaintiffs repeated claim that Windsors use of the phrase
careful consideration requires heightened judicial scrutiny is
wrong. Sexual orientation has not been recognized as a basis for
applying any type of heightened scrutiny review by the United
States Supreme Court and has been rejected as a basis by this
Court. Plaintiffs suggestion to the contrary is without merit.
IV
South Dakota marriage laws are constitutional.
A.

Plaintiffs claim of gender discrimination is without merit.

Plaintiffs claim that in the context of marriage, sexual

orientation discrimination is the same as gender discrimination

must be rejected.2 The district court did not even address Plaintiffs

Where a classification infringes based on gender, a heightened

intermediate (but not strict) test may apply. See Romer v. Evans,
517 U.S. 620, 624, 635; City of Cleburne v. Cleburne Living Center,
473 U.S. 432, 440-41 (1985); Craig v. Boren, 429 U.S. 190, 197
(1976). Classifications based on gender are quasi-suspect and
require intermediate scrutiny because they frequently bear[] no
relation to ability to perform or contribute to society and therefore
generally provide[] no sensible ground for differential treatment.
2

(continued . . .)

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gender discrimination claim in reaching its ultimate decision.

APP 300. There is no support under Supreme Court or this Courts
precedent for adopting Plaintiffs request to nullify the distinction
between sex discrimination based upon gender and sex
discrimination based upon sexual orientation.
The differentiation between gender and sexual orientation sex
discrimination is not a novel concept. This Court in Bruning and
Richtenberg treated claims of sexual orientation discrimination
differently than claims of gender discrimination. Bruning, 455 F.3d
at 865-66; Richtenberg, 97 F.3d at 260. The difference is also
clearly articulated in the Title VII context. This Court has limited
Title VIIs prohibition against sex discrimination to claims of gender
discrimination. Williamson v. A.G. Edwards and Sons, Inc., 876
F.2d 69, 70 (8th Cir. 1989) (dismissing a Title VII claim based upon
sexual orientation discrimination because homosexuality pertains
to sexual preference, not gender). See also Hopkins v. Baltimore
Gas and Elec. Co., 77 F.3d 745, 748-52 (4th Cir 1996); DeCintio v.
____________________
( . . . continued)

Craig, 429 U.S. at 197 (1976); City of Cleburne, 473 U.S. at 440-41
(1985).
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Westchester County Med., 807 F.2d 304, 306 (2d Cir. 1986); Ulane
v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984).
The genesis of lower court decisions finding gender
discrimination in the context of same-sex marriage is the
concurring opinion in Latta v. Ottner, 771 F.3d 456, 479-85 (9th
Cir. 2014) (Berzon, J., concurring). The judge in the concurring
opinion wrongly lumps together all forms of potential sex
discrimination into one category, labeling it all as gender
discrimination. This is simply not supported by the case law or a
common sense application of the law. Discrimination based upon
gender requires that members of one sex are exposed to
disadvantageous terms or conditions . . . to which members of the
other sex are not exposed. Oncale v. Sundowner Offshore Services,
523 U.S. 75, 80 (1998).
Plaintiffs have cited no Supreme Court or Eighth Circuit
precedent stating that sexual orientation discrimination claims are
treated the same as gender discrimination for equal protection
purposes. South Dakota marriage laws do not demonstrate any
preference to one gender over the other. Under South Dakota law,
neither males nor females may marry another person of the same
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gender. In this respect, men and woman are both treated equally
under the law. Nonetheless, Plaintiffs ask this Court to recognize
its gender discrimination claim. This Court should decline to do so.
B.

South Dakota Marriage laws withstand rational basis review.

Plaintiffs once again ignore Bruning in arguing that South

Dakotas marriage laws defining marriage as between one man and

one woman do not withstand rational basis review. Bruning, 455
F.3d at 865-66. South Dakota marriage laws withstand judicial
scrutiny for the same reasons this Court upheld the Nebraska
Constitutional provisions in Bruning. The States marriage laws
rest[] firmly within a States constitutional prerogatives and are
entitled to particular deference. Gregory v. Ashcroft, 501 U.S. 452,
462 (1991); Sosna v. Iowa, 419 U.S. 393, 404 (1975); Dandridge v.
Williams, 397 U.S. 471, 486 (1970); Bruning, 455 F.3d at 867. They
must be upheld . . . if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification.
F.C.C. v. Beach Commcns, 508 U.S. 307, 313 (1993); City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
The Court in Bruning recognized that it is rational for a
legislature and electorate to believe it is important to encourage
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marriage for opposite-sex couples, who can produce children by

accident. Bruning upheld Nebraskas proffered rational basis for its
limitation of marriage to opposite-sex couples based on a
responsible procreation theory that justifies conferring the
inducements or marital recognition and benefits on opposite sex
couples, who can otherwise produce children by accident, but not
on same-sex couples, who cannot. 455 F.3d at 867-68 (citations
omitted).
The State Legislature and electorate could also rationally
believe same-sex marriage would fundamentally alter a basic
societal structure, would have an impact on the public fisc by
extending state marriage benefits to a new group of couples, and
that change should proceed with caution. A cautious approach to
making such a fundamental change to the definition of marriage is
therefore not irrational. See Bruning, 455 F.3d at 870-71.
C.

Changes to South Dakota marriages laws uphold the traditional

definition of marriage.
Plaintiffs improperly infer amendments to South Dakota

marriage laws reflect animus. PB 42. As presented in Defendants

initial brief, South Dakotas marriage laws have defined marriage as

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between one man and one woman since territorial days. APP 19192; DB 6-8. Accordingly, amendments to South Dakotas marriage
laws in 1996 and 2006 only sought to maintain the status quo.
Significantly, the amendments did not remove rights previously
enjoyed by same-sex couples, but rather, adopted a long existing,
widely held social norm already reflected in state law. DeBoer, 772
F.3d at 408.
The sole factual allegation made in support of Plaintiffs
animus claim appears in Plaintiffs Statement of Material Facts 3
([House Bill 1143] was motivated, at least in part, by the prospect
of legal marriage for same-sex couples in Hawaii following the
Supreme Court of Hawaiis decision . . .) and 5 (The
documentation that accompanied the 2006 ballot included the
statement that marriage is a union between one man and one
woman and that the State of South Dakota should not recognize
any other kind of marriage). These kinds of facts do not support
a claim of animus.
This precise argument was rejected by the Sixth Circuit in
DeBoer. The Court found that the statewide initiative codified a

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long existing, widely held social norm already reflected in state law.
DeBoer, 772 F.3d at 408. The Court stated:
Neither was the decision to place the definition of marriage
in a States constitution unusual, nor did it otherwise
convey the kind of malice or unthinking prejudice the
Constitution prohibits. Nineteen States did the same thing
during that period. And if there was one concern animating
the initiatives, it was the fear that the courts would seize
control over an issue that people of good faith care deeply
about. If that is animus, the term has no useful meaning.
Id. (citations omitted).
Plaintiffs claim that South Dakota marriage laws reflect
animus toward one particular group to which they are a member is
also without merit. The laws do not single out same-sex couples.
The laws apply with equal force to individuals attempting to enter
into or have recognized polygamous marriages. Accordingly, South
Dakotas marriage laws can only be interpreted to reflect the
Legislature and electorates desire to uphold the traditional
definition of marriage.
CONCLUSION
Plaintiffs have not provided this Court with a legal or factual
basis to uphold the district courts decision. The district court
erred in failing to follow Baker and Bruning, failing to apply rational

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basis review, and by broadening the right to fundamental marriage

to include same-sex marriage. Further, this Court should decline to
adopt Plaintiffs argument with regard to gender discrimination
because South Dakota marriage laws treat both genders identically.
Finally, South Dakota marriage law amendments that maintained
the traditional definition of marriage do not reflect animus.
Defendants therefore respectfully request this Court reverse the
district court and declare South Dakota marriage laws
constitutional.
Respectfully submitted,
For State Defendants-Appellants Daugaard, Jackley, MalsamRysdon, and Jones

/s/ Jeffrey P. Hallem

Jeffrey P. Hallem
Ellie J. Bailey
Assistant Attorneys General
1302 E. Highway 14, Suite 1
Pierre, SD 57501-8501
Telephone: (605) 773-3215

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For County Defendant Sherman

/s/ Robert B. Anderson
Robert B. Anderson
Justin L. Bell
503 South Pierre Street
PO Box 160
Pierre, SD 57506
Phone: (605) 224-8803

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CERTIFICATE OF COMPLIANCE
1.

I certify that the Appellees Brief is within the limitation

provided for in Rule 32(a)(7) using bookman old style typeface in 14

point type. Appellees Brief contains 2,540 words.
2.

I certify that the word processing software used to

prepare this brief is Microsoft Word 2010, and it is herewith

submitted in PDF format.
3.

I certify that the brief submitted herein has been scanned

for viruses and that the brief is, to the best of my knowledge and
belief, virus free.
Dated this 2nd day of April, 2015.

/s/ Jeffrey P. Hallem

Jeffrey P. Hallem
Assistant Attorney General

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 2nd day of April,
2015, a true and correct copy of Appellants Reply Brief was
submitted to the Eighth Circuit Court of Appeals for review.

/s/ Jeffrey P. Hallem

Jeffrey P. Hallem
Assistant Attorney General

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