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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Colleen Therese Condon and Anne )

Nichols Bleckley, ) Civil Action No. 2:14-cv-04010-RMG

)Plaintiffs, )

)

v. )

) MEMORANDUM OF GOVERNORNimrata (Nikki) Randhawa Haley, in her ) AND ATTORNEY GENERAL

official capacity as Governor of South ) IN OPPOSITION TO MOTION FOR

Carolina; Alan M. Wilson, in his official ) PRELIMINARY INJUNCTION ANDCapacity as Attorney General; and Irvin ) ALTERNATIVE MOTION / REQUEST

G. Condon in his official capacity as ) FOR STAY

Probate Judge of Charleston County, ))

Defendants. )

__________________________________ )

Governor Nikki Haley and Attorney General Alan Wilson (Defendants) oppose

Plaintiffs Motion for Preliminary Injunction for the reasons discussed below.

This suit is barred and should not proceed due to multiple grounds not considered by the

Fourth Circuit Court of Appeals same-sex marriage panel decision. Bostic v. Schaefer, 760 F.3d

352 (4th Cir. 2014). Those grounds include theRooker-Feldman doctrine, the failure of the 2-1

Bosticpanel decision to recognize and apply prior, controlling precedent of the Fourth Circuit,

Federalism, the Eleventh Amendment, lack of standing to sue the Governor and the Attorney

General as well as other doctrines warranting dismissal including abstention and comity to

earlier filed federal proceedings.

Plaintiffs are of the same-sex and seek marriage in this state. They object to a State

Supreme Court ruling, discussed infra, that directed the Defendant, Judge Condon, not to issue

them a marriage license. State law does not allow or recognize same-sex marriages, and

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Plaintiffs challenge those provisions. S.C. Code Ann 20-1-10 and 20-1-15; S.C. Const art.

XVII, 15 (Attachment A to this Memorandum). This case not only presents the question of

whether those laws are valid, but also whether this suit should be dismissed due to the above

defenses. Although those defenses are dispositive, to the extent necessary, these Defendants

argue against the precedent ofBostic on the merits of Plaintiffs challenge to South Carolina law.

Our States laws are valid under the equal protection and due process clauses. Among other

errors, the Bostic panel has misapplied the Loving v. Virginia, 388 U.S. 1 (1967) to alter an

element historically inherent in marriage, a union of a man and a woman.

The issue of same-sex marriage has proceeded through the Federal Courts in other states

at an unprecedented pace. Centuries of precedent have been swept away in other jurisdictions in

the space of only two or three years. Never have the Courts made judgments so quickly about an

issue that had received little attention before now. But the legal proceedings are not over. The

United States Supreme Court has not weighed in. Many Courts of Appeals have not decided the

cases before them or are still in process in the District Courts. Although a 2-1 Panel of the Court

of Appeals for the Fourth Circuit inBostic has overturned Virginias same-sex marriage ban, that

Panel did not consider defenses that are dispositive of the instant case, and the en banc Court of

Appeals has not ruled on those defenses or the merits of the constitutional challenges. The

defenses named above and discussed, infra, take this case outside of the Bostic precedent and

warrant judgment for the Defendants.

I

JURISDICTIONAL AND OTHER BARS TO THIS SUIT

The following grounds deprive this Court of jurisdiction or otherwise warrant dismissal

of this suit or deference to other pending Federal litigation.

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A

TheRooker-FeldmanDoctrine Is A

Jurisdictional Bar To This Action

This Court lacks jurisdiction to proceed in this case because the RookerFeldman

doctrine bars review of the following Order of the South Carolina Supreme Court in State ex rel

Wilson v. Condon,No. 2014-002121, 2014 WL 5038396, at *1-2 (S.C. Oct. 9, 2014):

Currently, the issue of whether Article XVII, Section 15 of the South Carolina

Constitution . . . and Sections 20110 through 15, violate the United StatesConstitution is actively under consideration by Judge Childs in the Bradacs case

[.1. Katherine Bradacs and Tracie Goodwin v Haley, et al, Civil Action No.

3:13-cv-

02351-JFA] . . . Respondent and all other probate judges are herebydirected not to issue marriage licenses to same-sex couples pending a decision by

the Federal District Court inBradacs. (emphasis added)

.

Plaintiffs place this ruling at issue in their complaint in that allege that Defendant Judge Condon

declined to issue [them a marriage] license for the sole reason that the proceedings instituted by

Defendant Wilson resulted in an order from the South Carolina Supreme Court forbidding the

issuance of marriage licenses to same-sex couples before an order requiring such issuance had

been entered by the United States District Court for the District of South Carolina. Complaint,

23. Their Prayer asks that Judge Condon be enjoined in this action from enforcement of any

provisions of South Carolina law that exclude same-sex couples from marriage. Therefore, they

request review and relief squarely in conflict with the Supreme Courts order.0F1

TheRookerFeldmandoctrine . . . prohibits the lower federal courts from reviewing or

rejecting state court judgments [and] serves as a jurisdictional bar to federal court review of each

1 Defendant Judge Condon, on Friday, asked the Supreme Court to amend its Order to apply to

any other same-sex marriage case pending before the Federal District Court of South Carolina.At least until the Supreme Court changes its Wilson v. Condon order, this Court lacks authority

to proceed in the instant case underRooker-Feldman and should abstain, as discussed infra.

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of the federal claims alleged in the Complaint. . . . Except in limited circumstances not applicable

here, the only federal court with the authority to reverse or modify the judgments of state courts

is the Supreme Court itself.Exxon Mobil, 544 U.S. at 283 (citing 28 U.S.C. 1257). Stratton v.

Mecklenburg Cnty. Dep't of Soc. Servs., 521 F. App'x 278, 288 (4th Cir. 2013) cert. denied, 134

S. Ct. 1290 (2014).

Last year, the Honorable David Norton applied the RookerFeldman doctrine to bar

review of State Court orders related to that matter. As he stated:, this court must abstain from

hearing an injunctive challenge to that [Supreme Court] decision under RookerFeldman. Only

the United States Supreme Court can review the South Carolina Supreme Court's judgment that

adoption by Adoptive Couple would be in the best interests of the child. V.B. ex rel. Smith v.

Martin, No. 2:13-CV-2073-DCN, 2013 WL 4018248, at *1 (D.S.C. July 31, 2013).

[T]he test[for application of Rooker-Feldman] is . . .whether the relief sought in the

federal suit would reverse or modify the state court decree. Adkins v. Rumsfeld, 464 F.3d 456,

464 (4th Cir. 2006). Plaintiffs certainly request such relief because it is contrary to the Supreme

Courts Order that probate judges not issue marriage licenses pending theBradacs decision. That

Order was specific to theBradacs case. It was not conditioned on other Federal litigation such

as the instant, subsequently filed case, and an order in this case would conflict with that Order.

Plaintiffs could have sought relief consistent with the Supreme Courts Order. As

intervening parties in the State v. Condoncase, they could have petitioned for certiorari from that

Order. They could have requested that the Supreme Court modify the Order to include any other

federal litigation in this State. They could have intervened in Bradacs and requested a

preliminary injunction in that case. They could ask this Court to certify the question to the

Supreme Court of whether its Order would encompass this litigation (Rule 244, SCACR), but

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they have not done so. Instead, they seek relief in the instant case that is contrary to the Supreme

Courts Order in State v Condon. They cannot do so, and this Court lacks jurisdiction to enter an

order in this case contrary to the State Supreme Court as that Order is now written.

Although Plaintiffs argue that Bradacs is different because it asserts a claim for

recognition of a District of Columbia marriage license, it requests that same-sex persons be

allowed to marry in South Carolina. Moreover, the South Carolina Supreme Court expressly tied

its directive to probate judges to the Bradacs litigation. Plaintiffs effort to distinguishBradacs

and criticism of the Defendants Petition that resulted in the Supreme Court order further

demonstrates that they are launching a collateral attack on the ruling of the Supreme Court.

Although the Supreme Courts Order is clearly limited to Bradacs, if arguendo, this

Court has questions regarding the scope of that Order, the Defendants Governor and Attorney

General respectfully request that this Court certify those questions to the State Supreme Court

pursuant to Rule 244. They believe that the Supreme Court would respond quickly to any such

certification so that no significant delay would result from that process.

B

This Court Is Not Bound ByBostics Conclusion ThatBaker v. Nelson Need Not Be

Followed By It; Further the Fourth Circuit Did Not Consider that Federalism Requires

These Issues To Be Brought In State Court

1

Introduction

Bosticis not binding on this Court with respect to the Fourth Circuit panels conclusion

that it need not follow Baker v. Nelson, 409 U.S. 810 (1972). Bakerdismissed an appeal from

the Minnesota Supreme Court for want of a substantial federal question on the precise issue

beforeBosticand this Court: whether there is a federal constitutional right of same-sex couples

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to marry. See Baker, 191 N.W.2d 185 (Minn. 1971). In summarily dismissing the appeal in

Baker, the Supreme Court also necessarily rejected the argument made by plaintiffs there that the

right to marry in such instance is a fundamental right.

However, the Fourth Circuit panel in Bostic held that Baker was no longer binding

precedent because of the significant doctrinal developments that occurred after the [Supreme]

Court issued its summary dismissal in that case. 760 F.3d at 375. This was a clear disregard by

the panel of its own precedents, as well as an ignoring of the command of the Supreme Court in

Hicks v. Miranda, 422 U.S. 332 (1975).

In other words, it is clear that Bostic, although acknowledging that the issues in Baker

were identical to those before it, ignored the well-established Fourth Circuit prior panel rule

that one panel cannot overrule a decision by another panel. McMellon v. United States, 387

F.3d 329, 332 (4th

Cir. 2004) (citing cases). This rule requires a panel to follow the earlier of

conflicting opinions. Id. Beginning in 1975, with the panel decision inHogge v. Johnson, 526

F.2d 833, 835 (4th

Cir. 1975), the Fourth Circuit, adhering to the mandate of the Supreme Court

in Hicks v. Miranda, supra, found that the Supreme Courts summary dismissal for want of a

substantial federal question on the same issues is a perfectly clear precedent that is binding on

us. Even though, inHogge, the Fourth Circuit panel disagreed with the summary dismissal, and

believed that a substantial federal question existed, former Supreme Court Justice Tom Clark

sitting as a Fourth Circuit panel member -- stated that the panel was foreclosed by Hicks

holding that such a summary dismissal by the Supreme Court, constituted a decision on the

merits and was, as a result, binding upon the panel. Hogge, 526 F.2d at 836 (Clark, J.

concurring).

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Fourth Circuit decisions have consistently applied this prior panel rule, established in

Hogge, thus requiring that summary disposition by the Supreme Court must be followed --

regardless of the panels view of the merits of the Supreme Courts action. See, Thonen v.

Jenkins, 517 F.2d 3, 7 (4th

Cir. 1975) [Although we agree . . . that the Supreme Courts

summary affirmance of a three judge court decision is not as strong precedent as a full Supreme

Court opinion . . ., we also agree with the Second Circuit that the privilege of disregarding every

summary Supreme Court holdings rests with that court alone.]; Goldfarb v. Sup. Ct. of Va., 766

F.2d 859, 862 (4th

Cir. 1985) [The summary affirmance of this decision by the United States

Supreme Court necessarily agreed that a rational basis lay beneath Rule 1A: 1(4)(d), and we may

not re-open that foreclosed question. (citing Hicks v. Miranda, supra)]; Idaho Assoc. of

Naturopathic Physicians, Inc. v. U.S. Food and Drug. Adm., 582 F.2d 849, 853-854 (4th

Circ.

1978) [reviewing a number of summary affirmances and dismissals by the Supreme Court on the

issue and stating that [i]n light of the decisions of the Supreme Court that we have reviewed, we

find that the Naturopaths basic claim has been firmly, repeatedly and authoritatively rejected.];

Repub. Party of N.C. v. Hunt, 991 F.2d 1202, 1204 (Phillips, J., dissenting from denial of

rehearing en banc) [While such a summary affirmance does not of course foreclose later, full

consideration of the dispositive issue by the Supreme Court . . . the decision affirmed and its

rationale are binding on this court until that happens]; Westinghouse Elec. Corp. v. State of Md.

Comm. On Human Relations, 520 F.Supp. 539, 547 (D. Md. 1981) [following Hicks and Hogge,

the District Court adhered to summary dispositions of Supreme Court, concluding that only the

Supreme Court could disregard these precedents]. None of these Fourth Circuit decisions

recognize that a Circuit Court or District Court is at liberty to decide that a summary decision by

the Supreme Court has been abandoned or superseded by doctrinal developments.

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Accordingly, there is an irreconcilable conflict between Hogge and its progeny and

Bostic in this regard. Applying the prior panel rule, set forth inMcMellon, it is evident that

Bostic is not binding precedent upon this Court with respect to its conclusion that Baker v.

Nelson is no longer good law. Hogge and subsequent Fourth Circuit decisions, referenced

above, adhere to the rule set forth in Hicks v. Miranda, supra that lower courts are bound to

follow the Supreme Courts summary decisions until such time as the [Supreme] Court informs

[them] that [they] are not. Hicks, 422 U.S. at 344. TheBosticpanel ignored this rule, taking it

upon itself to decide that doctrinal developments render Baker v. Nelson archaic or

abandoned, and thus no longer applicable. In short, regardless of the merits of Plaintiffs

claims,Hoggeand the subsequent decisions, referenced above, must be followed by this Court.

Hoggeand these other earlier panel decisions control here, thereby requiring adherence toBaker.

Any subsequent doctrinal developments, found by Bostic, must be assessed by the Supreme

Court, not by the Fourth Circuit, or by this Court. See Conde-Vidal v. Garcia-Padilla, ____

F.Supp. 2d ____, 2014 WL 5361987 (D.C.P.R. 2014) [Baker is binding on District Court].

Moreover, any conclusion by Bostic regarding federalism is not binding here, either.

Bosticaddressed the argument that a federalism-based interest in defining marriage is a suitable

justification for the Virginia Marriage Laws. 760 F.3d at 378. However, the Fourth Circuit

rejected this argument, concluding that United States v. Windsor, 133 S.Ct. 2675 (2013) does

not teach us that federalism principles can justify depriving individuals of their constitutional

rights; it reiterates [Loving v. Virginias ] admonition that the states must exercise their authority

without trampling constitutional guarantees. Virginias federalism-based interest in defining

marriage cannot justify its encroachment on the fundamental right to marry. 760 F.3d at 379.

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However, Bostic did not address the same federalism argument we are making in this

case. Our argument, in contrast to Bostic, and recognized in Windsor and Elk Grove Unified

School Dist. v. Newdow, 542 U.S. 1 (2004), abrogated on other grounds,Lexmark Intern., Inc. v.

Static Control Components, Inc., 134 S.Ct. 1377 (2014), is based upon the domestic relations

exception, applying the long-held view that the federal courts, as a general rule do not

adjudicate marital status even where there might otherwise be a basis for federal jurisdiction.

Windsor, supra, 133 S.Ct. at 2691. As one Court has put it, [a] federal court presented with

matrimonial issues or issues on the verge of being matrimonial in nature should abstain from

exercising jurisdiction so long as there is no obstacle to their full and fair determination in state

courts. American Airlines v. Block, 905 F.2d 12, 146 (2nd

Cir. 1990). That is the case here.

Indeed, scholars as well as courts, including the Fourth Circuit, have concluded that the

domestic relations exception is applicable to federal question jurisdiction, thereby depriving a

federal court of subject matter jurisdiction. As one leading scholar has recently concluded, there

is no federal question jurisdiction to hear domestic relations matters, explaining that

[t]he federal courts simply do not have the statutory federal questionjurisdiction that would enable them to hear cases challenging the definition

of marriage, divorce, alimony, child custody, or probate. These cases raised

religious questions, which is why in England they were heard by the

Ecclesiastical Courts and not by the common law courts or the courts ofequity.

Calabresi, The Gay Marriage Cases and Federal Jurisdiction (October 2, 2014), Northwestern

Law and Econ. Research Paper No. 14-18; Northwestern Public Law Research Paper No. 14-50,

at 47. Available at SSRN: http://ssm.com/abstract=2505514 or http://dx.doi.org/10.2139/ssm.

2505515. This analysis is entirely consistent with that of another scholar who has stated that

[n]ot infrequently, courts have dismissed federal question cases for lack of subject matter

9

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jurisdiction, citing the domestic relations exception. Harbach, Is The Family a Federal

Question? 660 Washington and Lee L.Rev. 131 146, and cases collected at n. 59.

Among the numerous cases cited by Professor Harbach is the Fourth Circuit decision in

Wilkins v. Rogers, 581 F.2d 399, 403-404 (4th

Circ. 1978). Wilkins involved, among other

things, a wifes suit against her former husband regarding repayment of money allegedly

advanced during the marriage as well as support and maintenance. Plaintiffs wife alleged that

she was a victim of unconstitutional sex-based discrimination sanctioned by the South Carolina

court system. Id. at 403. She sought to invoke the federal courts original jurisdiction under

both diversity, as well as federal question jurisdiction.

The Fourth Circuit, however, applied the domestic relations exception to dismiss the case

on both jurisdictional grounds, noting that [i]t has long been held that the whole subject of

domestic relations belongs to the laws of the state and not to the laws of the United States. Id.

Thus, according to the Fourth Circuit, . . . such disputes do not present a federal question,

notwithstanding allegations of sexual discrimination. . . . Therefore, original jurisdiction over

Wilkins claims does not lie. Id.at 404. (emphasis added).

While the Fourth Circuit went on to apply Pullmanand other forms of abstention as well,

it is clear, as Professor Harbach concludes, that the Wilkinscase stands for the proposition that

the domestic relations exception deprives federal courts of federal question jurisdiction.

Again, the prior panel rule would govern here, requiring this Court to follow Wilkinsinstead of

theBosticdecision. LikeBaker v. Nelson, supra, which dismissed the same sex marriage issue

for want of a substantial federal question, Wilkinsdismissed a federal claim regarding a marital

dispute, based upon alleged sex discrimination, for precisely the same reason asBaker want of

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a federal question. Therefore, this Court lacks subject matter jurisdiction and is obligated to

follow Wilkins, as well asBaker.

In summary, the Fourth Circuit panel possessed no authority to disregard Baker, which

constitutes the one Supreme Court decision on the merits regarding same-sex marriage. While

the Fourth Circuit speculated as to doctrinal developments, i.e. subsequent decisions of the

Supreme Court and how those cases may be applicable to the constitutional issue presented,

application of Bakershould have been all that was necessary to decide Bostic. The Court was

not free to determine the Supreme Courts doctrinal developments. Nor is this Court.

Moreover, the Fourth Circuit panel did not consider the issue of subject matter jurisdiction or

federalism as it relates to the longstanding domestic relations exception, as applied in both

Wilkins, as well asNewdowand Windsor. We will discuss each of these issues in greater detail

below.

2

Principles of Federalism dictate that

this action is improperly brought in Federal Court

As the Fourth Circuit has stated, [i]t is well established that before a federal court can

decide the merits of a claim, the claim must invoke the jurisdiction of the court. Miller v.

Brown, 462 F.3d 312, 316 (4th

Cir. 2006). Such Art. III jurisdiction includes issues of

justiciability. Id. Federal courts, in order to satisfy the . . . overriding and time-honored

concern about keeping the Judiciarys power within its proper constitutional sphere . . . must put

aside the natural urge to proceed directly to the merits of [an] important dispute and to settle it

for the sake of convenience and necessity. Hollingsworth v. Perry, 133 S.Ct. 2652, 2661

(2013), quotingRaines v. Byrd, 521 U.S. 811, 820 (1997). Moreover, in quintessentially local

issue[s] which are imbued with sufficient local character . . . state courts ought to be accorded

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comity from the federal courts with regard to its regulation. Johnson v. Collins, 199 F.3d 710,

731 (4th

Cir. 1999) (Luttig, J. concurring in judgment).

We have discussed above that scholars, as well as the Fourth Circuit in Wilkins v. Rogers,

supra, have concluded that the domestic relations exception deprives a federal court of federal

question jurisdiction. In this instance, this Court should dismiss this action, based upon

overriding principles of federalism whether that analysis is based upon federal question

jurisdiction, justiciability or abstention. Because this case seeks to decide the core question of

two peoples marital status, it belongs in state court rather than in federal court, regardless of the

legal theory upon which it is based. As only recently stated in United States v. Windsor, 133

S.Ct. supra, at 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.

For over a century, the United States Supreme Court, as well as lower federal courts,

have concluded that actions concerning domestic relations, such as those deciding the status of

marriage, are not properly brought in Federal Court, but are conclusively within the authority of

state courts. Since the federal Constitutions adoption, such actions have been deemed outside

the province of federal law and equity courts, belonging instead to the state ecclesiastical courts.

See State of Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 384 (1930). Of course, in South

Carolina, the successor to the ecclesiastical court is the probate court. Thus, based upon

compelling interests of lack of federal question jurisdiction, and federalism, this case should be

dismissed as improperly brought here, rather than in the courts of South Carolina.

As Judge Posner recognized in Jones v. Brennan, 465 F.3d 304 (7th

Cir. 2006), the

domestic relations exception applies equally to federal questions. Such exception was always

deemed applicable to diversity cases, because domestic relations adjudications do not involve

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law or equity dispositions. Judge Posner points out that the statute relating to federal questions

uses the same common law or equity language as the diversity statute. Thus, as he concludes,

the domestic relations exception was intended to apply to federal question cases too. 465 F.3d

at 307. While Judge Posner relied upon a federal question interpretation, similarly to that of the

Fourth Circuits decision in Wilkins jurisdictional analysis, other courts have looked to the

foundations of federalism particularly justiciability and abstention -- in concluding that

domestic relations issues are more properly a matter for state courts to decide, even where

federal questions are deemed to be involved. Harbach, supraat 165-175.

Indeed, Elk Grove United School Dist. v. Newdow, supra is strongly supportive of this

federalism analysis. Newdow was a case clearly involving a federal question 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

Newdowsparental statuswas defined by California domestic relations law. 542 U.S. at 16.

(emphasis added). In the Supreme Courts view, it is improper for the federal courts to

entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in

dispute when prosecution of the lawsuit may have an adverse effect on the person who is the

source of the plaintiffs claimed standing. 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 alsoAnkenbrandt 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.].

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(M.D. Fla. 2005), the Court noted it should defer to the state courts in matters of family law.

And, in Whiteside v. Neb. State Health and Human Services, 2007 WL 2123754 (D. Neb. 2007),

the Court dismissed a 1983 action pursuant to the domestic relations exception, based upon

Newdow.

The recent Supreme Court decision, United States v. Windsor, suprais fully supportive of

Newdows analysis. In Windsor, New York recognized same-sex marriages performed

elsewhere, as well as those in that state. However, the federal Defense of Marriage Act

(DOMA) required that, for federal purposes, marriage means only a legal union between

one man and one woman as husband and wife. . . . In the words of the Supreme Court, [w]hat

the State of New York treats as alike the federal law deems unlike by a law designed to injure the

same class the State seeks to protect. As a result, DOMA, because of its reach and extent,

departs from [the] . . . history and tradition [of the federal government] of reliance on state law to

define marriage. 133 S.Ct. at 2392.

The Windsor Court, sensitive to these federalism concerns in the area of domestic

relations, reviewed in detail the longstanding recognition by the Court that, except for

deprivation of constitutional rights, such as involving racial discrimination, domestic relations is

an area that has long been regarded as a virtually exclusive province of the States. Id. at

2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975)). As explained by the Supreme Court,

[t]he definition of marriage is the foundation of the States broader authority

to regulate the subject of domestic relations with respect to the [p]rotection

of offspring, of property interests, and the enforcement of maritalresponsibilities. [citing Williams v. North Carolina, 317 U.S. 287, 298

(1942)]. . . . [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 delegated no authority to the Government of the United Stateson the subject of marriage and divorce. Haddock v. Haddock, 201 U.S.

562, 575, 26 S.Ct. 525, 50 L.Ed. 867 (1906); see also In re Burrus, 136 U.S.

586, 593-594, 10 S.Ct. 850, 34 L.Ed. 500 (1890) (The whole subject of

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domestic relations of husband and wife, parent and child, belongs to the

laws of the States and not to the laws of the United States). . . .

The significance of state responsibilities for the definition and regulation of

marriage dates to the Nations beginning; for when the Constitution was

adopted for common understanding was that the domestic relations ofhusband and wife and parent and child were matters reserved to the States.

Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-384, 50 S.Ct. 154, 74

L.Ed. 489 (1930).

Id.

In short, because DOMA -- a federal act -- interfered with New Yorks determination as

to what constituted a valid marriage, it was necessary for the Supreme Court to step in. As one

commentator has noted, DOMA was an unusual federal intrusion into an issue previously

reserved for the states . . . [i]n fact, before DOMAs enactment in 1996, the federal government

had by history, and tradition relied on the states determination of what constituted marriage.

Mir, Windsor and Its Discontents . . ., 64 Duke Law Journal, 53, 58 (2014). According to

Justice Kennedy,

[t]he responsibility of the States for the regulation of domestic relations is

an important indicator of the substantial societal impact the States

classifications have in the daily lives and customs of its people. DOMAsunusual deviation from the usual tradition of recognizing and accepting

state definitions of marriage here operates to deprive same-sex couples of

the benefits and responsibilities that come with the federal recognition of

their marriages. This is strong evidence of a law having the purpose andeffect of disapproval of that class. The avowed purpose and practical effect

of the law here in question are to impose a disadvantage, a separate status,

and so a stigma upon all who enter into same-sex marriages made lawful bythe unquestioned authority of the States.

Id. at 2693 (emphasis added).

In other words, Windsor involved interference [by the federal government] with

traditional state prerogatives, i.e. the status of the marriage relationship. Kitchen v. Herbert,

755 F.3d 1193, 1236 (10th

Cir. 2014). As Chief Justice Roberts observed in his Windsordissent,

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[t]he dominant theme of the majority opinion is that the Federal

Governments intrusion into an area central to state domestic relations law,

applicable to its residents and citizens is sufficiently unusual to set offalarm bells. . . . [I]t is undeniable that [the majority opinion] . . . is based on

federalism.

133 S.Ct. at 2697 (Roberts, C.J. dissenting). The Chief Justice concluded that the Courts

opinion in Windsor is based upon the historic and essential authority to define the marital

relation, allowing states to continue to utilize the traditional definition of marriage. Id. at

2696.

Scholars agree with Chief Justice Roberts reading that Windsoris based primarily upon

federalism. As has been stated, . . . Justice Anthony Kennedys majority opinion in Windsor

left little doubt that federalism principles were crucial to the results. DOMA was

unconstitutional not simply because it discriminated against same-sex couples who were legally

married in New York, butbecause it intruded on the states sovereign authority to define

marriage for themselves. Young and Blendel, Federalism, Liberty, and Equality in United

States v. Windsor, 2013 Cato Supreme Court Review, 117, 118 (2013-14). As one scholar has

correctly observed, as a federalism-in-family law decision, Windsorcan be linked with a long

line of decisions stressing federal deference to state authority to regulate family matters . . . such

as Elk Grove Unified School District v. Newdow, [supra] . . . United States v. Morrison, [529

U.S. 598 (2000)] . . . Jones v. United States,[529 U.S. 848 (2000)] . . . United States v. Lopez,

[514 U.S. 549 (1995)] . . . and United States v. Yazell, [382 U.S. 341 (1966)]. Wardle,

Reflection on Equality in Family Law, 1385 Mich. St. L. Rev. 1422 (2013). As Judge Duffy put

it in Norris v. Singletary, 2010 WL 331766 (D.S.C. 2010) . . . federal appellate courts have

held that federal district courts may abstain for reasons of comity and common sense from cases

better handled by state courts having authority over matrimonial and family matters.

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Accordingly, it is important to note that only last year, the Court reaffirmed the principle

that individual states should determine the status of a marriage, whether that marriage consists of

the traditional relationship, or one which includes the legal union between the same sexes. In

South Carolina, by adopting Art. XVII, 15, voters supported the traditional definition of

marriage by almost 80%, reinforcing the right of citizens to debate so they can learn and decide

and then, through the political process act in concert. . . . See Schuette v. Coalition to Defend

Affirmative Action, 134 S.Ct. 1623, 1636-7 (2014). Such is the province of the States, rather than

the federal courts.

According to Newdow, as well as Windsor, federal courts must honor the States

sovereign right in this area, notwithstanding that a constitutional challenge may be involved.

The state courts may and are required to hear such challenges. Huffman v. Pursue, Ltd., 420

U.S. 592, 611 (1975) [state judges are bound by federal law and must remain faithful to their

constitutional responsibilities under Art. VI of the federal Constitution.]; See alsoIn re Estate of

Mercer v. Bryant, 288 S.C. 313, 318, 342 S.E.2d 591, 593 (1986) [We hold that S.C. Code Ann.

21-7-480 (1976) is unconstitutional in its entirety because it violates the equal protection clause

of the United States Constitution.]. In this instance, the language contained in Art. XVII, 15

has never been interpreted by the courts in South Carolina. South Carolinas courts have not yet

defined the term contracts or other legal instruments as employed therein. Thus as inNewdow,

there will undoubtedly be family rights that are in dispute with respect to the scope of Art.

XVII, 15. As inNewdow, hard questions are sure to affect the outcome, particularly where a

South Carolina court would have to address the question of the breadth of the phrase contracts

or other legal instruments. Such a contract provision was not contained in the constitutional

amendment at issue in Bostic and its phraseology could be deemed to have constitutional

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significance in this case. Compare Romer and Windsor, supra [finding animus against groups

based upon sexual orientation]. The protection of rights of contract in the South Carolina

Constitution suggests no such animus here. Notwithstanding Plaintiffs federal constitutional

claims, such claims are thus intertwined with family law rights in South Carolina, not yet

defined by state courts. Deference to the courts of South Carolina in this important area of

domestic relations does not mean that the state courts will not consider nor adjudicate the

important constitutional claims raised by this case. To the contrary, our South Carolina courts

will certainly do so. However, at the same time, state courts must be allowed to define the scope

of domestic relations rights in this area.

Windsorsreliance upon federalism principles is incorrectly distinguished by the Fourth

Circuit inBostic. Contending that Windsor is actually detrimental to any federalism argument,

the Fourth Circuit quoted from Windsor that state laws defining and regulating marriage, of

course, must respect the constitutional rights of persons. . . citing Loving v. Virginia, supra.

Loving, however, involved a criminalization of Virginias anti-miscegenation laws, based upon a

racial classification, not an effort to define marriage in its traditional form between a man and a

woman. Under the Fourth Circuits analysis, principles of federalism could never be applied by

federal courts if constitutional rights are alleged. However, the Supreme Court, through Justice

Black, has consistently recognized that principles of federalism do,

. . . not mean blind deference to States Rights any more than it means

centralization of control over every important issue in our National

Government and its courts. . . . What the concept does represent is a systemin which there is sensitivity to the legitimate interests of both State and

National Governments, and in which the National Government, anxious

though it may be to vindicate and protect federal rights and federal interests,

always endeavors to do so in ways that will not unduly interfere with thelegitimate activities of states.

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Younger v. Harris, 401 U.S. 37, 44 (1971). As the Court has emphasized, state courts have the

solemn responsibility equally with the federal courts to safeguard constitutional rights. . . .

Trainor v. Hernandez, 431 U.S. 434, 443, (quoting Steffel v. Thompson, 415 U.S. 452, 460-1

(1974).

As noted above, the federalism argument we are asserting here based upon the

domestic relations exception was never considered in Bostic. Whether this exception is

viewed as an issue of federal question jurisdiction, or an issue of justiciability or abstention, it is

nevertheless applicable. This Court should stay its hand to allow the state courts to resolve the

status of marriage, uniquely a province of the state courts, rather than the federal courts. As

already noted, the Fourth Circuit has applied this domestic relations exception to a

constitutional claim, based upon alleged sex discrimination. In Wilkins v. Rogers, supra, the

Court refrained from ruling upon a question of sex discrimination. Federal question jurisdiction,

as well as diversity was invoked. However, the Fourth Circuit found that federal courts should

not hear such claims:

[i]t has long been held that the whole subject of domestic relations belongsto the laws of the state and not to the laws of the United States. Ex Parte

Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 34 L.Ed. 500 (1890). Thus,

original jurisdiction of suits primarily involving domestic relations is

improper, notwithstanding that the parties are residents of different states.E.g. Albanese v. Richter, 161 F.2d 688 (3d 1947), cert. denied, 332 U.S.

782, 68 S.Ct. 49, 92 L.Ed. 365 (1947). And such disputes do not present a

federal question, notwithstanding allegations of sexual discrimination. . . .Therefore, original jurisdiction over Wilkins claims does not lie.

581 F.2d at 403-404. But see, U.S. v. Johnson, 114 F.3d at 476 (4th

Circ. 1997).

In short, this Court should refrain from injecting this Court into this case and defer to the

state courts based uponNewdowand Windsor, as well as Wilkins v. Rogers. The issue here, at its

core, is the status of marriage. Federal courts not only lack federal question jurisdiction to

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adjudicate these issues, but are ill-equipped to address these kinds of domestic relations

questions. Art. XVII, 15 has never been interpreted by the courts of South Carolina. Rather

than a rush to judgment, this case should be decided in the proper state court the court which

has traditionally handled questions relating to marriage.

This analysis is fully supported by the Supreme Courts decision in Baker v. Nelson, 409

U.S. 810 (1972), which dismissed virtually identical issues to the claims now pending before this

Court for want of a substantial federal question. For the reasons that follow, Baker remains

binding upon this Court and fully buttresses the foregoing authorities applying principles of

jurisdiction, as well as federalism by applying the domestic relations exception.

InBaker, two men sought a marriage license. 191 N.W.2d 185 (Minn. 1971). However,

Minnesota law provided that marriage would be recognized only between a man and a woman.

The Minnesota statute was challenged on the basis of the Due Process and Equal Protection

Clauses, as well as allegedly offending the First, Eighth and Ninth Amendments. The Minnesota

Supreme Court stated that [t]hese constitutional challenges have in common the assertion that

the right to marry without regard to the sex of the parties is a fundamental right of all parties and

that restricting marriage to only couples of the opposite sex is irrational and invidiously

discriminatory. 191 N.W.2d at 186.

The Court reviewed Supreme Court decisions, particularly Skinner v. Oklahoma, 316

U.S. 935 (1942), Griswold v. Connecticut, 381 U.S. 479 (1965), and Loving v. Virginia, supra.

According to the Court,

Loving does indicate that not all restrictions upon the right to marry are

beyond the reach of the Fourteenth Amendment. But in common sense and

in a constitutional sense, there is a clear distinction between a maritalrestriction based merely upon race and one based upon the fundamental

difference in sex.

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191 N.W.2d at 187.

It is important to note that the Minnesota Supreme Court specifically rejected all of

Plaintiffs constitutional challenges. The Court found no Due Process violation, relying

principally upon Skinner. With respect to the Equal Protection claim, the Court concluded that

[t]he equal protection clause of the Fourteenth Amendment, like the due process clause, is not

offended by the states classification of persons authorized to marry. There is no irrational or

invidious discrimination. Id. at 187.

Plaintiffs then appealed the Minnesota Supreme Courts decision to the United States

Supreme Court. The Plaintiffs Jurisdictional Statement raised three separate questions to the

Supreme Court: (1) whether the States refusal to sanctify appellants marriage [between the

same sexes] deprives appellants of their liberty to marry and of their property without due

process of law under the Fourteenth Amendment; (2) whether the States refusal, pursuant to

Minnesota marriage statutes, to sanctify appellants [same-sex] marriage because both are of the

male sex violates their rights under the equal protection clause of the Fourteenth Amendment;

and (3) whether the States refusal to sanctify appellants [same-sex] marriage deprives

appellants of their right to privacy under the Ninth and Fourteenth Amendments. Baker,

Jurisdictional Statement No. 71-1027, p. 3 (Feb. 11, 1971). Importantly, the Supreme Court

dismissed [the appeal] for want of a substantial federal question. Baker v. Nelson, 409 U.S. at

810.

The Supreme Courts summary dismissal represents a ruling on the merits and is binding

upon this Court and all lower federal courts. In Hicks v. Miranda, supra, the Supreme Court

addressed the effects of a dismissal by that Court for lack of a substantial federal question.

Among other questions raised inHickswas the issue of whether a summary dismissal, for want

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of a substantial federal question, was binding on the District Court and required that court to

sustain the California obscenity statute and to dismiss the case. 422 U.S. at 343. The Supreme

Court concluded that such summary dismissal was indeed binding. According to the Hicks

Court,

[w]e agree with appellants that the District Court was in error in holding

that it would disregard the decision in Miller II. That case was an appealfrom a decision by a state court upholding a state statute against federal

constitutional attack. A federal constitutional issue was properly presented,

it was within our appellate jurisdiction . . . and we had no discretion torefuse adjudication of the case on its merits as would have been true had the

case been brought here under our certiorari jurisdiction. We are not

obligated to grant the case plenary jurisdiction, and we did not; but we were

required to deal with its merits. We did so by concluding that the appealshould be dismissed because the constitutional challenge to the California

statute was not a substantial one. The three judge court was not free to

disregard this pronouncement.

As Mr. Justice Brennan once observed, (v)otes to affirm summarily, and to

dismiss for want of a substantial federal question, it hardly needs comment,are votes, on the merits of a case. . . .; [citation omitted]. The District Court

should have followed the Second Circuits advice . . . that unless and until

the Supreme Court should instruct otherwise, inferior courts had best adhereto the view that if a court has branded a question as insubstantial, it remains

so except when doctrinal developments indicate otherwise; and later in

Doe v. Hodgson, 478 F.2d 537 . . . that the lower courts are bound bysummary decisions by this Court until such time as Court informs (them)

that they are not.

422 U.S. at 343-345. (emphasis added).

Moreover, the Court has recognized that a summary dismissal without doubt reject[s]

the specific challenges presented in the statement of jurisdiction and prevent[s] lower courts

from coming to opposite conclusions [1] on the precise issues presented and [2] necessarily

decided by those actions. Mandel v. Bradley, 432 U.S. 173, 176 (1977). The lower court must

determine the precise legal questions and facts presented in the jurisdictional statement.

Windsor v. U.S., 833 F. Supp.2d 394, 399 (S.D.N.Y. 2012).

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The Fourth Circuit has also recognized the binding effect of summary dismissals by the

Supreme Court. InHogge v. Johnson, supra, the Fourth Circuit said this:

. . . the United States Supreme Court has spoken to the question among the

circuits with respect to the meaning to be accorded to the dismissal for wantof a substantial federal question. Such is a decision on the merits binding

upon the inferior federal courts. It is stare decisis on issues properly

presented to the Supreme Court and declared by that court to be without

substance. Hicks v. Miranda, 422 U.S. 332. (1975).

The HoggeCourt then proceeded to examine the issues presented to the Supreme Court which

resulted in the summary dismissal. The Court concluded that the summary dismissal of the

appeal in Kisley [187 S.E.2d 168 (1972)] is a perfectly clear precedent that is binding upon us.

526 F.2d at 835. See alsoIdaho Assoc. of Naturopathic Physicians, Inc. v. U.S. Food and Drug.

Adm., 582 F.2d at 853-854 [In light of the decisions of the Supreme Court that we have

reviewed [summary dispositions], we find that the naturopaths basic claim has been firmly,

repeatedly, and authoritatively rejected. Because we discern nothing in dictating that their

position, once labeled insubstantial, should now be considered otherwise, we affirm the

judgments of the district court].

However, with respect to the binding force ofBaker, the Fourth Circuit, inBostic, supra

took it upon itself to disregard its own precedents, as well as the directive of the Supreme Court

inHicks v. Miranda, supra,and other cases. The Fourth Circuit panel assumed the role reserved

to the Supreme Court when it cited Windsor, and noted that Windsordid not discussBakerin its

opinion or during oral argument. 760 F.3d at 374. Of course, as discussed above, Windsorwas

not about the merits of the same-sex issue, but concerned the right of the individual state to

determine the status of marriage without federal interference.

Moreover, the Fourth Circuit relied upon an off-hand remark by Justice Ginsberg in the

oral argument in Hollingsworth v. Perry, supra, a case which was resolved based not upon the

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merits of the same-sex marriage issue, but upon standing. See 760 F.3d,Id. at n. 5. Then, the

BosticCourt, while acknowledging thatBakeraddressed the precise issues before it, 760 F.3d

at 373, proceeded to review the Supreme Courts sex discrimination cases since Baker,

concluding that

[i]n light of the Supreme Courts apparent abandonment of Baker and the

significant doctrinal developments that occurred after the Court issued itssummary dismissal in that case, we decline to view Baker as binding

precedent and proceed to the meat of the opponents Fourteenth

Amendment arguments.

760 F.3d at 375.

However, as discussed, the Supreme Court recognized in Hicks and other cases that a

Circuit Court of Appeals or a District Court may not make such an assessment regarding the

Supreme Courts doctrinal developments. Such is a matter for the Supreme Court, rather than

lower federal courts, to determine. As the Supreme Court warned inAgostini v. Felton, 521 U.S.

203 (1997),

[w]e do not acknowledge, and we do not hold, that other courts should

conclude our more recent cases have, by implication, overruled an earlier

precedent. We reaffirm that [i]f a precedent of this Court has directapplication in a case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the case which

directly controls, leaving to this Court the prerogative of overruling its own

decisions. Rodriguez de Quijas [490 U.S. 477], supra at 484. . . (1989)].

521 U.S. at 237.

In the context of considering the question of same-sex marriage, unlike Bostic, a number

of courts have concluded thatBaker v. Nelson is binding upon them. SeeMcConnell v. Nooner,

547 F.2d 54, 56 (8th

Circ. 1976) [The District Court dismissed this action on the basis that

Baker v. Nelson . . . is dispositive of the issues raised therein. We agree.]; Wilson v. Ake, 354

F.Supp. 2d 1298, 1304-1305 (M.D. Fla. 2005) [Although Baker v. Nelson is over thirty (30)

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years old, the decision addressed the same issues presented in this action, and this Court is bound

to follow the Supreme Courts decision.];Anderson v. King County, 138 P.3d 963 (Wash. 2006)

(en banc) (Alexander, C.J., concurring) [referencing Baker, and noting that the Supreme Court

dismissed the appeal for want of a substantial federal question: Thus, the same-sex union as a

constitutional right argument was so frivolous as to merit dismissal without further argument by

the Supreme Court. A similar result is required today.];Donaldson v. State of Montana, 292

P.3d 364, 371, n. 5 [referencing cases deeming Baker as binding]; Morrison v. Sadler, 821

N.E.2d 15, 19 (Ind. App. 2005) [There is binding United States Supreme Court precedent that

state bans on same-sex marriage do not violate the United States Constitution.];Lockyer v. City

and County of San Francisco, 95 P.3d 459, 503 (Cal. 2004) (Dennard, J., concurring and

dissenting) [Indeed there is a decision of the United States Supreme Court, binding on all other

courts and public officials that a state law restricting marriage to opposite-sex couples does not

violate the federal Constitutions guarantees of equal protection and due process of law.].

Importantly, the United States District Court for the District of Puerto Rico has

determined thatBakeris binding in this same context. In Conde-Vidal v. Garcia-Padilla, supra,

the Court concluded that . . . plaintiffs constitutional claim challenging the Puerto Rico Civil

Codes recognition of opposite-gender marriage fail to present a substantial federal question, and

this Court must dismiss them. Id.at 6. According to the Court:

[t]he First Circuit expressly acknowledged a mere two years ago that

Baker remains binding precedent unless repudiated by subsequent

Supreme Court precedent. Massachusetts v. U.S. Dept. of Health and

Human Services, 682 F.3d 1, 8 (1st Cir. 2012). According to the First

Circuit,Bakerpresents the adoption of arguments that presume or rest on a

constitutional right to same-sex marriage.

Id.

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Indeed, in oral argument in Hollingsworth v. Perry, supra, Justice Scalia recognized

Baker v. Nelsonas a binding decision on the merits. He asked attorney Ted Olson the following:

Im curious when did it become unconstitutional to exclude [gay] . . .

couples from marriage? 1791, 1868, when the Fourteenth Amendment wasadopted? . . . [s]ome time after Baker [v. Nelson was decided in 1972],

where we said it didnt even raise a substantial federal question? When

when when did the law become this?

Transcript of Oral Argument, at 38,Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) (No. 12-144)

(quoting Justice Scalia). Thus, contrary to the Fourth Circuits disregard ofBakerinBostic, at

least one member of the Supreme Court does not appear to believe that Baker has been

abandoned by doctrinal developments. This resolution as to the continuing viability of

Baker as not raising a substantial federal question is for the Supreme Court, not the Fourth

Circuit nor this Court to determine.

Accordingly, the refusal of the Fourth Circuit in Bostic, to follow the directive of the

Supreme Court inBaker, based upon its own assessment of Supreme Court precedent, is contrary

toHicks,Agostini, as well as the Fourth Circuits own cases. As discussed above,Bosticignored

the well established prior panel rule, and ignored Hogge, requiring the courts of the Fourth

Circuit to adhere to summary rulings by the Supreme Court. The issue of bans upon same-sex

marriage has not yet been addressed by the Supreme Court except in Baker v. Nelsons dismissal

for want of a substantial federal question. All of the issues including Plaintiffs constitutional

claims here, were addressed by the Minnesota Supreme Court, were raised in the Baker

Jurisdictional Statement to the Supreme Court, and were thus resolved in Bakers summary

disposition. The impact of Loving v. Virginia, supra, upon the validity of same-sex marriage

was specifically raised to the Supreme Court, as were the Equal Protection and Due Process

claims. The Fourth Circuit panel was not free to disregardBaker, based upon its perception that

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Baker was outdated or not in step with subsequent precedent. Agostini, supra. Baker was

binding upon the Fourth Circuit and this Court as well. Thus, Bakeris entirely consistent with

the recognition of the long-standing domestic relations exception and the principles of

federalism applied in Newdow and Windsor. Indeed, as Wilkins emphasizes, domestic issues

intertwined with federal constitutional claims, such as gender discrimination, do not present a

federal question. Wilkins, 581 F.2d at 403-404.

Regardless of Bakers continuing viability, however, the overriding principles of

federalism, discussed above, require dismissal of this case. The core question in this case is the

status of a marriage. BothNewdowand Windsorstrongly militate in favor of this matter being

decided in the state courts, rather than this Court. Newdowand Windsorreinforce the principle

that domestic relations -- here the core determination of the status of marriage remains

within the province of the States, rather than with the federal courts. As Newdowemphasizes,

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. And, as Windsorstresses, [t]he

significance of state responsibilities for the definition and regulation of marriage dates to the

Nations beginning. 133 S.Ct. at 2691. According to the Supreme Court in Windsor, [t]he

definition of marriage is the foundation of the States broader authority to regulate the subject of

domestic relations with respect to the [p]rotection of offspring, property interests and the

enforcement of marital responsibilities. 133 S.Ct. at 2691. Windsorwas based upon federal

interference with New Yorks sovereign determination of the definition of marriage in that State.

Based upon these authorities, the Complaint should be dismissed. As the Court in

Newdowwell summarized, [d]omestic relations are preeminently matters of state law. 542 U.S.

at 12 (quoting Mansell v. Mansell, 490 U.S. 581, 587 (1989)). And, as the Fourth Circuit

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Also, as stated in in Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir.

2001):

Ex parte Youngrequires a special relation between the state officer sued and the

challenged statute to avoid the Eleventh Amendment's bar. Ex parte Young, 209U.S. at 157. General authority to enforce the laws of the state is not sufficient to

make government officials the proper parties to litigation challenging the law.

Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th

Cir.1996) (internal quotation marks omitted). Thus, [t]he mere fact that agovernor is under a general duty to enforce state laws does not make him a proper

defendant in every action attacking the constitutionality of a state statute. ShellOil Co. v. Noel, 608 F.2d 208, 211 (1st Cir.1979).

Here, although Governor Gilmore is under a general duty to enforce the laws of

Virginia by virtue of his position as the top official of the state's executive branch,

he lacks a specific duty to enforce the challenged statutes. Thus, we vacate thejudgment against him and remand with instructions that the district court dismiss

him as a defendant in this action. The fact that he has publicly endorsed and

defended the challenged statutes does not alter our analysis. The purpose ofallowing suit against state officials to enjoin their enforcement of an

unconstitutional statute is not aided by enjoining the actions of a state official not

directly involved in enforcing the subject statute.

TheEx parte Young exception to Eleventh Amendment immunity does not apply to either

defendant because they do not possess more than general authority to enforce the laws of the

State. Section 20-1-15 and art. XVII, 15 do not provide the Attorney General or the Governor

with any specific enforcement authority regarding those marriage provisions, nor do those

provisions even reference those officers or create any penal provisions for them to enforce. The

Attorney Generals general authority as the States chief prosecuting officer (S.C. Const. Art. V,

24;State v. Long, 406 S.C. 511, 753 S.E.2d 425 (2014) and as the chief law officer of the

State (State ex rel. Condon v. Hodges, 349 S.C. 232, 239, 562 S.E.2d 623, 627 (2002)) does not

give him proximity to and responsibility for the challenged state action so as to avoid the bar

of the immunity. McBurney, supra. Similarly, the Governors authority as chief Magistrate

(art. IV, 1) does not create for her a special relationship to the laws at issue and subject her to

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theEx Parte Young exception nor does any super.See Charleston Cnty. Sch. Dist. v. Harrell, 393

S.C. 552, 561, 713 S.E.2d 604, 609 (2011); 1F2 Waste Management, supra. Certainly, neither

Defendant has the authority to issue a marriage license under state law to anyone or to grant

recognition of marriages entered out-of-State. 20-1-230 (judge of probate or clerk of court

issues licenses).

A Virginia District Court, other than the one that consideredBostic, supra, recently relied

onMcBurney and Waste Management to reach a similar decision as to that states Governor in a

same-sex marriage case. Harris v. McDonnell, 988 F. Supp. 2d 603, 611 (W.D. Va. 2013). As

stated in that case, Virginia Governor's general supervisory authority over the Commonwealth's

executive branch does not constitute a special relation to the challenged same-sex marriage ban.

The Virginia Governor has insufficient proximity to and responsibility for Virginia's marriage

laws, and plaintiffs have not shown any involvement by the Governor in the enforcement of

these laws. Id.

Robicheaux v. Caldwell, 986 F. Supp. 2d 749, 752 (E.D. La. 2013), reconsideration

denied (Jan. 13, 2014), made a similar conclusion as to the Louisiana Attorney Generals

immunity. The Court found that [t]he Attorney General's sweeping responsibility to enforce the

laws of the State of Louisiana lacks the Ex parte Youngspecificity nexus between the Attorney

General and the alleged unconstitutional provisions that is essential to defeat sovereign

immunity.

2 Nothing in School District's complaint demonstrates a nexus between Governor or his

authority and Act 189. Instead, School District only alleges that the Governor's ample executivepowers render him an appropriate defendant in any suit where the constitutionality of a statute is

challenged. This is an insufficient reason to name the Governor as a party defendant. Id.

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These cases compel the same conclusion here. The Governor and the Attorney General

should be dismissed because they lack a special relation to the laws at issue so as to be subject to

the Ex Parte Young exception to immunity. They do not issue marriage licenses or enforce

license laws. Plaintiffs failed to sue any officials with such authority.

D

Plaintiffs Lack Standing To Sue the Defendants

For reasons similar to those discussed in the immunity section, supra, Plaintiffs lack

standing to sue the Defendants. As stated at an earlier stage of Oklahomas same-sex marriage

case:

Before we address the merits of [a] case, we must first determine whether the

federal district court, and likewise this court, has subject-matter jurisdiction overthe dispute.In re Aramark Leisure Serv's, 523 F.3d 1169, 1173 (10th Cir.2008).

Article III standing requires that a plaintiff allege an injury-in-fact that has a

causal connection to the defendant and is redressable by a favorable courtdecision. . . . as

Bishop v. Oklahoma, 333 F. App'x 361, 364 (10th Cir. 2009)(Bishop II); see also, Bishop

v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. Jan. 14, 2014).

In that case, the Tenth Circuit found a lack of standing of the Plaintiffs to sue the

Governor and the Attorney General regarding their claims:

Here, the Oklahoma officials' generalized duty to enforce state law, alone, is

insufficient to subject them to a suit challenging a constitutional amendment they

have no specific duty to enforce. See Women's Emergency Network v. Bush, 323F.3d 937, 949-50 (11th Cir.2003); see also Waste Mgm't. Holdings, Inc. v.

Gilmore, 252 F.3d 316, 330-31 (4th Cir.2001) (concluding governor's general

duty to enforce the laws of Virginia insufficient when he lacks a specific duty toenforce the challenged statutes); Okpalobi v. Foster, 244 F.3d 405, 422-25 (5th

Cir.2001) (en banc) (constitutional challenge to state tort statute against Governor

and Attorney General not viable under the Ex Parte Youngdoctrine because no

enforcement connection existed between Governor or Attorney General and thestatute in question); 1st Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108, 112-13,

116 (3d Cir.1993) (If we were to allow [plaintiffs] to join ... [the State officials]

in this lawsuit based on their general obligation to enforce the laws ..., we would

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quickly approach the nadir of the slippery slope; each state's high policy officials

would be subject to defend every suit challenging the constitutionality of any state

statute, no matter how attenuated his or her connection to it.).

The Couples claim they desire to be married but are prevented from doing so, or

they are married but the marriage is not recognized in Oklahoma. These claimsare simply not connected to the duties of the Attorney General or the Governor.

Marriage licenses are issued, fees collected, and the licenses recorded by the

district court clerks. SeeOkla. Stat. Ann. tit. 28, 31; Okla. Stat. Ann. tit. 43, 5.

[A] district court clerk is judicial personnel and is an arm of the court whoseduties are ministerial, except for those discretionary duties provided by statute. In

the performance of [a] clerk's ministerial functions, the court clerk is subject to

the control of the Supreme Court and the supervisory control that it has passeddown to the Administrative District Judge in the clerk's administrative district.

Speight v. Presley, 203 P.3d 173, 177 (Okla.2008). Because recognition of

marriages is within the administration of the judiciary, the executive branch of

Oklahoma's government has no authority to issue a marriage license or record amarriage. Moreover, even if the Attorney General planned to enforce the

misdemeanor penalty (a claim not made here), that enforcement would not be

aimed toward the Couples as the penalty only applies to the issuer of a marriagelicense to a same-sex couple. Thus, the alleged injury to the Couples could not be

caused by any action of the Oklahoma officials, nor would an injunction

(tellingly, not requested here) against them give the Couples the legal status theyseek. [footnote omitted]

Bishop II dismissed the claims against the Oklahoma Governor and Attorney General due to

lack of standing. Just as the plaintiffs in that case had no standing to sue the Oklahoman

Governor and Attorney General due to their lack of enforcement authority as to same-sex

marriage bans, the instant Plaintiffs lack standing to sue Governor Haley and Attorney General

Wilson. This suit should be dismissed against them. Bishop II. 2F3

3Kitchen v. Herbert,755 F.3d 1193, 1203 (10th Cir. 2014) reached a different conclusion as to

the Utah Governor and Attorney General, but is readily distinguishable from the instant case.The Court found that the Utah Governor and Attorney General had explicitly taken the position

. . . 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. Id. 755 F. 3d at 1202. South Carolinas Attorney General and Governor do not have suchauthority over our Probate Judges who issue licenses and this action should be dismissed as to

them.

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Although the standing problems for Plaintiffs, as parties, is that they cannot sue these

defendants, they also lack standing to assert the claims of third parties such as other same-sex

couples and children of such relationships. In order to maintain third-party standing, a plaintiff

must establish the following three requirements: (1) an injury-in-fact; (2) a close relationship

between the plaintiff and the person whose right is being asserted; and (3) a hindrance to the

third party's ability to protect his or her own interests. Miller v. MontgomeryCnty., Md., 458 F.

App'x 304, 310 (4th Cir. 2011). To the extent that Plaintiffs attempt to make claims for other

same-sex couples and children of such relationships, they fail to meet these requirements for

third-party standing, and they have not sought to bring a class action.

E

This Court Should Also Abstain Under Younger v. Harris

Younger v. Harris, 401 U.S. 37 (1971) and its progeny also support abstention because

State proceedings are ongoing. Although the Supreme Court has issued its above discussed

Order in State v. Condon, the proceeding is pending to the extent that Judge Condon and all other

probate judges are directed not to issue marriage licenses pending a Bradacs decision and all

state courts are directed not to issue marriage licenses unless otherwise ordered by the

Supreme Court. Therefore, the Supreme Court allows for the possibility that it might issue other

orders, and the direction to Probate Judges is tied to theBradacs case, not the instant case.

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 10-11 (1987) makes clear, as follows, that

Younger abstention may and should be applied to support abstention as to ongoing civil

proceedings:

The courts below should have abstained under the principles of federalismenunciated in Younger v. Harris . . . . Both the District Court and the Court of

Appeals failed to recognize the significant interests harmed by their

unprecedented intrusion into the Texas judicial system. Similarly, neither of those

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courts applied the appropriate standard in determining whether adequate relief

was available in the Texas courts.

The first ground for the Younger decision was the basic doctrine of equity

jurisprudence that courts of equity should not act, and particularly should not act

to restrain a criminal prosecution, when the moving party has an adequate remedyat law. Id., at 43, 91 S.Ct. at 750. The Court also offered a second explanation

for its decision:

This underlying reason ... is reinforced by an even more vitalconsideration, the notion of comity, that is, a proper respect for

state functions, a recognition of the fact that the entire country is

made up of a Union of separate state governments, and acontinuance of the belief that the National Government will fare

best if the States and their institutions are left free to perform their

separate functions in their separate ways.... The concept does not

mean blind deference to States' Rights' any more than it meanscentralization of control over every important issue in our National

Government and its courts. The Framers rejected both these

courses. What the concept does represent is a system in whichthere is sensitivity to the legitimate interests of both State and

National Governments, and in which the National Government,

anxious though it may be to vindicate and protect federal rightsand federal interests, always endeavors to do so in ways that will

not unduly interfere with the legitimate activities of the States.

Id., at 44, 91 S.Ct. at 750.

This concern mandates application of Younger abstention not only when the

pending state proceedings are criminal, but also when certain civil proceedingsare pending, if the State's interests in the proceeding are so important that exercise

of the federal judicial power would disregard the comity between the States and

the National Government.E.g., Huffman v. Pursue, Ltd.,420 U.S. 592, 603605,

(1975).

As in Pennzoil, supra, the instant case represents an unprecedented intrusion into [our states]

judicial system. Therefore, this Court should abstain from proceeding with this case.

F

As a Matter of Comity, This Court Should Decline To Consider This Case

Because A Prior Federal Case Is Pending

The first-to-file rule is a well-established doctrine of federal comity. The rule was

first recognized by the United States Supreme Court in Smith v. McIver, 22 U.S.

(9 Wheat.) 532, 6 L.Ed. 152 (1824). There, the Supreme Court stated that [i]n all

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cases of concurrent jurisdiction, the court which first has possession of the subject

must decide it. Id. at 534; see also American Modern Home Ins. v. InsuredAccounts Co., Inc., 704 F.Supp. 128, 129 (S.D.Ohio 1988) (quoting same). Therule since has been clarified and applied in cases involving concurrent federal

jurisdiction. See E.E.O.C. v. University of Pennsylvania, 850 F.2d 969, 972 (3rd

Cir.), cert. granted in part, 488 U.S. 992 (1988).The first-to-file rule has evolvedinto a mechanism used to promote judicial efficiency. See In re American Medical

Systems, Inc., 75 F.3d 1069, 1088 (6th Cir.1996) ( Although there is no precise

rule that, as between federal district courts, one court should defer to the other,

the general principle as to avoid duplicative litigation. ) (citations omitted);BarberGreene Co. v. BlawKnox Co., 239 F.2d 774, 778 (6th Cir.1957)

(describing that the first court to receive filing should proceed with case to avoid

confusion and uncertainty); ParkerHannifin Corp. v. Samuel Moore & Co.,436F.Supp. 498, 501 (N.D.Ohio 1977) (reiterating that primary jurisdiction attaches

in the forum where the action is first instituted) (citations omitted).12 The rule

provides that when identical suits are pending in two courts, the court in which

the first suit was filed should generally proceed to judgment. In re Burley, 738F.2d 981, 988 (9th Cir.1984). Generally, courts should invoke the rule when two

suits involving substantially the same parties and purpose have been filed in a

concurrent jurisdiction. BarberGreene Co., 239 F.2d at 778 (citation omitted).However, the same party and same issue is not an absolute requirement. [A]

precise identity of parties is simply not required.EBW, Inc. v. Environ Products,

Inc., No. 1:96CV144, 1996 WL 550020, at *3 (W.D.Mich. July 8, 1996).3Although courts should not apply the first-to-file rule too rigidly or mechanically,

the rule's importance should not be disregarded lightly. Church of Scientologyv. United States Dep't of the Army, 611 F.2d 738, 750 (9th Cir.1979). Notably,[t]he most basic aspect of the first to file rule is that it is discretionary. Alltrade,

Inc. v. Uniweld Products, Inc., 946 F.2d 622, 628 (9th Cir.1991). The decision

and the discretion belong to the district court.Id

Plating Res., Inc. v. UTI Corp., 47 F. Supp. 2d 899, 903 (N.D. Ohio 1999). Ordinarily, when

multiple suits are filed in different Federal courts upon the same factual issues, the first or prior

action is permitted to proceed to the exclusion of another subsequently filed. See Carbide &

Carbon Chemicals Corp. v. United States Industrial Chemicals, Inc., 140 F.2d 47, 49 (4th Cir.

1944). Allied-Gen. Nuclear Servs. v. Commonwealth Edison Co., 675 F.2d 610, 611, n. 1 (4th

Cir. 1982). See also, George Mason Univ. Found., Inc. v. Morris,No. 3:11-CV-848, 2013 WL

6449109, at *4 (E.D. Va. Dec. 9, 2013). As between federal district courts, however, though

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no precise rule has evolved, the general principle is to avoid duplicative litigation. Colorado

River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).

Duplicative litigation should be avoided here and comity served by this Courts deferring

a ruling in the instant case until the Bradacs case is decided. Bradacswill be ready for a ruling

on the dispositive motions in that case before the instant case is ready for such a decision. All

filings should be completed tomorrow regarding the pending Bradacs motions. Under the

October 14, 2014 scheduling order, the Court may decide those motions without a hearing.

Bradacs, 3:13-cv-02351, Document No. 71. The instant case is not as far along and filings will

be completed this week only as to the preliminary injunction (answer or other responsive motion

due November 7). The same substantive constitutional issues are present in both cases and the

fact that Bradacs includes a claim for recognition of an out-of-state marriage license is not a

distinction that is likely to produce a different substantive ruling or one not applicable to the

instant parties. That the plaintiffs are not the same does not prevent deference, and this Court

should proceed to stay this proceed or defer a ruling pending the Bradacs outcome. As noted

above, the State Supreme Court has stated that probate judges are [t]hereby directed not to issue

marriage licenses to same-sex couples pending a decision by the Federal District Court in

Bradacs.

II

PRELIMINARY INJUNCTION STANDARD

A preliminary injunction is an extraordinary and drastic remedy and isnever awarded as of right. Munaf v. Geren, 553 U.S. 674, 690 (2008). The

purpose of a preliminary injunction is merely to preserve the relative positions of

the parties until a trial on the merits can be held. Univ. of Tex. v. Camenisch,451

U.S. 390, 395 (1981). As the Fourth Circuit explained in In re Microsoft Corp.

Antitrust Litigation,333 F.3d 517, 525 (4th Cir.2003), [t]he traditional office of

a preliminary injunction is to protect the status quo and to prevent irreparable

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harm during the pendency of a lawsuit ultimately to preserve the court's ability to

render a meaningful judgment on the merits.

A moving party must establish the presence of the following: (1) a clear

showing that it will likely succeed on the merits; (2) a clear showing that it is

likely to be irreparably harmed absent preliminary relief; (3) the balance ofequities tips in favor of the moving party; and (4) a preliminary injunction is in

the public interest. Real Truth About Obama, Inc. v. Fed. Election Comm., 575

F.3d 342, 34647 (4th Cir.2009); W. Va. Assoc. of Club Owners & FraternalServs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir.2009). These standardsfollow the newly articulated requirements for preliminary injunction set forth by

the Supreme Court in Winter v. Natural Resources Defense Council, Inc., 555

U.S. 7, 2223 (2008). Unlike the Fourth Circuit's previous balance of hardshiptest set forth inBlackwelder Furniture Co. v. Seilig Manufacturing Co.,550 F.2d

189, 196 (4th Cir.1977), the moving party seeking a preliminary injunction must

establish the presence of each of the four requirements, satisfying the standards of

each as articulated.Real Truth About Obama, Inc.,575 F.3d at 347.

United States v. S. Carolina,840 F. Supp. 2d 898, 914 (D.S.C. 2011) modified in part, 906 F.

Supp. 2d 463 (D.S.C. 2012) aff'd, 720 F.3d 518 (4th Cir. 2013)

A preliminary injunction is a drastic remedy, Bloodgood v. Garraghty, 783 F.2d 470,

475 (4th Cir.1986), which serves to maintain the status quo ante litem. Feller v. Brock, 802 F.2d

722, 727 (4th Cir.1986). The decision to grant or deny a preliminary injunction rests within the

sound discretion of the district court, and that decision will not be disturbed on appeal absent a

showing that the district court committed an abuse of its discretion. Fayetteville, Cumberland

Cnty. Black Democratic Caucus v. Cumberland Cnty., N.C.,884 F.2d 1388 (4th Cir. 1989).

Although Preliminary Injunctions have been issued in same-sex marriage cases, Plaintiffs

fail to show that they are entitled to an injunction for reasons discussed below. See, eg. Bostic v.

Rainey, 970 F. Supp. 2d 456, 474 (E.D. Va.) 3F4

4aff'd sub nom. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) cert. denied sub nom.

Rainey v. Bostic, No. 14-153, 2014 WL 3924685 (U.S. Oct. 6, 2014) and cert. denied, No. 14-225, 2014 WL 4230092 (U.S. Oct. 6, 2014) and cert. denied sub nom. McQuigg v. Bostic, No.

14-251, 2014 WL 4354536 (U.S. Oct. 6, 2014).

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III

PLAINTIFFS FAIL TO MAKE A CLEAR SHOWING THAT THEY WILL LIKELY

SUCCEED ON THE MERITS FOR A PRELIMINARY INJUNCTION

The grounds set forth in Argument I, supra, are dispositive of this case. They also

demonstrate that Plaintiffs cannot succeed on the merits of this case. In addition, the following

grounds also show that Plaintiffs should not succeed on the merits.

A

As to Issues ThatBosticaddressed,Bosticwas Wrongly Decided and the Defendants,

respectfully, argue against precedent to the Extent Necessary

[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

law or for establishing new law). As discussed above, under Fourth Circuit precedent,Baker v.

Nelson controls this Courts consideration of the merits of this case rather than the Bostic Panel

decision that overlooked that authority of their own Court. To the extent that, arguendo, Baker

does not apply, the Defendants Governor and Attorney General argue against the Bostic

precedent and seek to preserve those arguments for further review.

B

History Of Marriage Law /

Comparison of Current South Carolina and Virginia Law

1

Generally

For countless centuries, marriage has required both sexesuniting a man and a woman

as husband and wife to be father and mother to any children they produce. As David Hume

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explained, "[t]he long and helpless infancy of man requires the combination of parents for the

subsistence of their young." David Hume, An Enquiry Concerning the Principles of Morals, in

Essays and Treatises on Several Subjects 421 (London, Millar 1758). John Locke likewise

understood marriage as made by a voluntary Compact between Man and Woman; and tho its

chief End, [is] Procreation; yet it draws with it mutual Support and Assistance, and a

Communion of Interests too, as necessary not only to unite their Care and Affection, but also

necessary to their common Off-spring, wh

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Documents