14-2241 #6 - Motion For Stay

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NO. 14-2241
__________________
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
COLLEEN THERESE CONDON and ANNE NICHOLS BLECKLEY,
Plaintiffs - Appellees
v.
NIMRATA (NIKKI) RANDHAWA HALEY, in her official capacity as Governor
of South Carolina; ALAN WILSON, in his official Capacity as Attorney General;
and IRVIN G. CONDON in his official capacity as Probate Judge of Charleston
County,
Defendants, of whom,
ALAN WILSON, in his official Capacity as Attorney General, is
Defendant Appellant.
___________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AT CHARLESTON
___________________
MOTION FOR EMERGENCY STAY
___________________
Appellant Attorney General Alan Wilson hereby moves pursuant to Rule 8,

FRAP and Local Rule 27(e), for an emergency stay pending appeal in this case as
to the Order of the United States District Court of the District Court for the District
of South Carolina dated November 12, 2014 granting summary judgment to the
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Plaintiffs in this case, issuing injunctions and denying the Attorney Generals
Motion to Dismiss. Should this Court, arguendo, deny a request for a stay, he also
includes an alternative request for a temporary stay to allow time for him to seek a
stay from a Justice of the United States Supreme Court.
APPEAL STATUS AND PRIOR MOTIONS FOR STAY
The Attorney General filed a Notice of Appeal on November 13, 2014 date
from the above Order of
November 12, 2014 (Document No. 37) of the
Honorable Richard M. Gergel, United States District Court Judge. Attachment 1.

That Order granted summary judgment to Plaintiffs 1 against South Carolina laws
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banning same-sex marriage, dismissed the Governor but not the Attorney General
on grounds of Eleventh Amendment immunity issued injunctions and denied as
moot the Attorney Generals Motion to Dismiss. S.C. Code Ann 20-1-10 and 201-15; S.C. Const art. XVII, 15. Judge Gergels Order also denied the request for
a stay of his ruling pending an appeal finding that the Attorney General did not
show a likelihood of success on appeal or meaningful evidence of irreparable
injury if a stay were denied. He found that Plaintiffs had put forward evidence of
irreparable injury if a stay were granted and that the public interest was best served
by the denial of a stay. Order at pp. 22 and 23; however, the Court granted a
Because Plaintiff Condon and Defendant Irwin Condon have the same last name,
this motion references the Plaintiffs as such to avoid confusion with the Defendant
Condon.
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temporary stay to last until Noon on November 20, 2014 to allow time for the
Court of Appeals to consider a motion for a stay on appeal, and possibly for the
United States Supreme Court to address the matter.
Order at pp. 24 & 25.
Respectfully, the Defendant Attorney General believes that he does meet the
standards for granting a stay pending appeal as discussed below.
The Attorney Generals Motion for a Stay is at page 54 of its Memorandum
in Opposition to the Motion for a Preliminary Injunction in this case which is
attached hereto as a single document (Attachment 2) including the three short
attachments referenced therein. Condon v. Haley, 2:14-cv-04010-RMG, Date Filed
11/03/14, USDC Document Number 29. The Amended Motion for Stay is also
attached (Attachment 3). USDC Document No. 36, filed November 11, 2014.
REASONS FOR GRANTING RELIEF

Under standards for a stay pending appeal a court considers four factors:
(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies. Nken v.
Holder, 556 U.S. 418, 426 (2009). The Attorney General meets these standards.
This Court should grant a stay of the decision of the District Court of South
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Carolina until this Court decides this appeal. Bostic v. Schaefer, 760 F.3d 352 (4th
Cir. 2014) 2, respectfully, was applied by the District Court to invalidate South
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Carolina law, but that decision should not govern this case. Under prior precedent
of the Fourth Circuit regarding summary decisions of the Supreme Court, Baker v.
Nelson, 409 U.S. 810 (1972) is controlling precedent instead of Bostic on the
constitutional issues. as is prior precedent of this Circuit. 3 To the extent that,
2F
arguendo, Bostic is controlling (United States v. Collins, 415 F.3d 304, 311 (4th
Cir. 2005)), the Attorney General also, respectfully, plans to argue against
precedent as to the issues decided by Bostic and to request that the initial hearing
on appeal be en banc. Among other errors, Bostic misapplied Loving v. Virginia,
388 U.S. 1 (1967). As more fully discussed below, Loving removed a racial
restriction superimposed on marriage without changing its elements whereas
Bostic, altered the inherent, defining element of marriage a union of a man and a
woman. That error as to Loving and others in the case, place Bostic in conflict with
DeBoer v. Snyder, No. 14-1341, 2014 WL 5748990 (6th Cir. Nov. 6, 2014), which
upheld same-sex marriage bans of four states,
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)
3
The Attorney General reserves the right to argue in his brief at the Court of
Appeals that Eleventh Amendment immunity and lack of standing bar this action
against him and maintain any other defenses that he raised in the District Court.
He does not address those defenses in this Motion.
2
Cert.
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Our position in this case is not one of advocacy on the question of whether
same-sex marriage should be permitted that decision has been made by the
legislature and voters of the State of South Carolina- it is the defense of what the
law is. If the law is to be changed, it should be through the voters and the
legislature, as it has in many other states, rather than through the Court.
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The Attorney General Meets the Test of a Strong Showing that He is Likely
To Succeed on the Merits
a
Fundamental Tenets of Federalism Recognize that
The State Retains the Power to Define Marriage
Just last year, in United States v. Windsor, 133 S.Ct. 2675, 2691 (2013), the
Supreme Court reaffirmed that [t]he definition of marriage is the foundation of
the States broader authority to regulate the subject of domestic relations. . . .
Thus, the federal courts as a general rule do not adjudicate marital status where
there might otherwise be a basis for federal jurisdiction. Id. South Carolina has,
by constitutional amendment, statute, and common law, defined marriage
traditionally, as between one man and one woman. Fundamental principles of
federalism thus require that this Court defer to South Carolinas definition of
marriage, because at the time of the Constitution, [the State] possessed full
power over the subject of marriage. Windsor, supra.
The one Supreme Court decision addressing whether the 14th Amendment
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compels same-sex marriage is Baker v. Nelson, supra. Baker dismissed for want
of a substantial federal question an appeal from the Minnesota Supreme Court on
this precise issue: whether the Due Process or Equal Protection Clause provide a
federal constitutional right of same-sex couples to marry. Baker, 191 N.W.2d 185
(Minn. 1971). In Baker, the United States Supreme Court necessarily rejected the
argument made before the Minnesota Supreme Court that, based upon Loving v.
Virginia, 388 U.S. 1 (1967), same-sex marriage is a fundamental right.
The
Minnesota Supreme Court concluded there is a clear distinction between a marital

restriction based merely on race and one based upon the fundamental difference in
sex. 191 N.W.2d 187. Baker also found that the States definition of marriage
was rational.
The summary dismissal in Baker was thus consistent with the
principle of federalism, deferring to the States longstanding marriage definition.

In Bostic, the Fourth Circuit panel deemed it could ignore Bakers upholding
of this traditional definition of marriage as it applied to Virginias law. The
divided Bostic panel held Baker was no longer binding precedent, because of
the significant doctrinal developments after the Court issued its summary
dismissal in that case. 760 F.3d at 375. The District Court followed Bostic in this
regard. Order at 14, n. 9. However, neither the Bostic panel nor the District Court
was free to disregard Baker. Instead, Baker was required to be followed because
of the prior panel rule of this Circuit. The command of Hicks v. Miranda, 422
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U.S. 322, 344 (1975) is that lower courts are bound by a summary Supreme Court
decision until such time as the [Supreme] Court informs [them] that [they] are
not. This Circuit has steadfastly followed Hicks mandate, until Bostic. The
District Court failed even to address this argument or the contrary Fourth Circuit
decisions adhering to Hicks.
In this Circuit, one panel cannot overrule a decision by another panel.
McMellon v. United States, 387 F.3d 329, 332 (4th Cir. 2004) (citing cases). A
panel of this Court cannot overrule, explicitly or implicitly, the precedent set by a
prior panel of this Court. Only the Supreme Court or this Court sitting en banc can
do that. U.S. v. Brooks, 524 F.3d 549, 559, n. 17 (4th Cir. 2009). A panel must
thus follow the earlier of conflicting opinions. Id. Beginning in 1975, with
Hogge v. Johnson, 526 F.2d 833, 835 (4th Cir. 1975), the Fourth Circuit, adhering
to the requirement of Hicks v. Miranda, supra, held that a summary dismissal for
want of a substantial federal question by the Supreme Court is a perfectly clear
precedent that is binding on us. Even though in Hogge, the Fourth Circuit panel
believed a substantial federal question existed, former Justice Clark a member
of the panel stated that the Court was foreclosed by Hicks holding and thus
the summary dismissal in that instance was binding. Hogge, 526 F.2d at 836
(Clark, J., concurring).
Subsequent Fourth Circuit decisions, consistent with the prior panel rule,
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have likewise found that Supreme Court summary decisions must be followed.
See Thonen v. Jenkins, 517 F.2d 3, 7 (4th Cir. 1975); Covington v. Raleigh, 531
F.2d 220 (4th Cir. 1976); Goldfarb v. Sup. Ct. of Va., 766 F.2d 859, 862 (4th Cir.
1985); Idaho Assoc. of Naturopathic Physicians, Inc. v. U.S. Food and Drug.
Adm., 582 F.2d 849, 853-854 (4th Circ. 1978). These cases reject that a lower
court is free to decide that a Supreme Court summary decision has been abandoned
or superseded by doctrinal developments.
Accordingly, applying the prior
panel rule, Hogge and its progeny, rather than Bostic, must control as to Bakers
viability. Any subsequent doctrinal developments need to be assessed by the
Supreme Court, not by the Fourth Circuit or District Court.
The Bostic panels disregard of the prior panel rule has ramifications well
beyond this case to other cases, in which a summary dismissal by the Supreme
Court may be involved. Now, according to the Bostic panel, a Fourth Circuit
panel, rather than the Supreme Court, may judge for itself the doctrinal
developments of Supreme Court decisions. Hicks v. Miranda, however, dictates
otherwise. Only this Court, en banc, may resolve the conflict between Bostic and
Hogge with regard to the binding effect of summary dismissals.
Indeed, in DeBoer v. Snyder, supra, the Sixth Circuit recognized Bakers
binding force. According to DeBoer, Hicks requires a summary decision to be
followed, and [i]t matters not whether we think the decision was right in its time,
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remains right today, or will be followed in the future. Only the Supreme Court
may overrule its own precedents. . . .
DeBoer correctly concludes that the
Supreme Court has neither overruled Baker by name or by outcome and that
neither Windsor, nor Lawrence v. Texas, 539 U.S. 558 (2003) changed that. Thus,
[t]he Court has yet to inform us that we are not [bound], and we have no license
to engage in a guessing game about whether the Court will change its mind or,
more aggressively, to assume authority to overrule Baker ourselves. Id. at 5. See
also, Mass. v. U.S.D.H.H.S., 682 F.3d 1, 8, (1st Cir. 2012 [Baker is binding on us
unless repudiated by subsequent Supreme Court precedent.]. Accordingly, Baker
upholding as constitutional the States traditional definition of marriage -- must
be followed, until overruled by the Supreme Court.
Contrary to the District
Courts ruling, lower federal courts may not determine for themselves that
doctrinal developments free a panel or the District Court of the Baker precedent.
Furthermore, any conclusion by Bostic regarding federalism is not binding,
either. Bostic did not address the precise contours of our federalism argument and
the District Court misapprehended it. Order at 16. In contrast to Bostic, and as
was recently recognized in United States v. Windsor, supra 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), federalism
requires that federal courts may not adjudicate marital status. Windsor, supra, 133
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As Justice Stevens concluded in Newdow, . . . [w]hile rare
instances arise in which it is necessary to answer a substantial federal question that

transcends or exists apart from the family law issue, see e.g. Palmore v. Sidoti, 446
U.S. 429, 432-434. . . (1984), in general it is appropriate for the federal courts to
leave delicate issues of domestic relations to the state courts. 542 U.S. at 13. 4
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This deference to state courts is, of course, part and parcel of the States
longstanding power to define marriage, a proper exercise of its sovereign
authority within our federal system, [as] . . . the Framers of the Constitution
intended. Windsor, supra, at 2692.
In DeBoer, the Sixth Circuit recently recognized that Windsor, at its heart,
was grounded upon federalism. Windsor reaffirmed the States prerogative to
define marriage whether traditionally or to extend the definition to include gay
couples and that Congress had no power to enact unusual legislation that
interfered with the States long-held authority to define marriage. DeBoer, at 20,
referencing Windsor, 133 S.Ct. at 2692-93. Scholars agree that Windsor found
DOMA unconstitutional because it intruded on the States sovereign authority to
define marriage for themselves. Young and Blondel, Federalism, Liberty, and
Equality in United States v. Windsor, 2013 Cato Supreme Court Review, 117,
4
Contrary to the ruling of the District Courts Order at 16, n. 12, Lexmark did not abrogate
Newdow with respect to domestic relations. Rather, Lexmark dealt with prudential standing.
See, Davis v. Kushner, 2014 WL 5308142 (N.D.N.Y. 2014) [noting that Lexmark abrogated
Newdow on other grounds].
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118 (2013-2014). See also Wardle, Reflection on Equality in Family Law,

Mich. St. L.R. 1385, 1422 (2013). Contrary to the District Courts reliance upon
Windsor to support its ruling that South Carolinas ban upon same-sex marriage is
unconstitutional, Windsor made clear that its holding was confined to lawful
marriages under state law. 133 S.Ct. at 2696. Indeed, [a] decision premised on
heightened scrutiny under the Fourteenth Amendment that redefined marriage
nationally to include same-sex couples . . . would divest the States of their
traditional authority over this issue. . . . Id. Baker v. Nelson is in complete
accord.
This traditional authority of the State has led scholars, as well as many
courts, including the Fourth Circuit, to conclude that the domestic relations
exception is applicable to federal questions, thereby depriving a federal court of
jurisdiction. As one scholar has documented, [n]ot infrequently, courts have
dismissed federal question cases for lack of subject matter 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 federal question cases cited by Professor Harbach is
this Circuits decision in Wilkins v. Rogers, 581 F.2d 399, 403-404 (4th Cir. 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
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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 diversity and federal
question jurisdiction.
This 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 Wilkins,
. . . 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 Wilkins addressed other forms of abstention also, principles of
federalism required that court to defer to the State in the area of domestic relations,
notwithstanding that a federal question was raised. Thus, this Circuit has earlier
deemed the domestic relations exception to control, notwithstanding the
involvement of constitutional questions. Again, the prior panel rule governs
here, thereby requiring adherence to Wilkins, rather than to Bostic. Like Baker,
which dismissed the same sex marriage issue for want of a substantial federal
question, Wilkins, relying upon the domestic relations exception, dismissed a
claim of sex discrimination for the same reason -- want of a federal question.
Therefore, this Court is obligated to follow Wilkins, as well as Baker. Accord, Doe
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v. Doe, 660 F.2d 101 (4th Cir. 1981) [citing Wilkins, habeas attack upon the
constitutionality of Virginias adoption laws dismissed, based upon deference to
States power over domestic relations].
Moreover, aside from jurisdictional grounds, Newdow, as well as Windsor,
strongly militate in favor of federal courts honoring the States sovereignty,
notwithstanding a constitutional challenge. Deference to South Carolina courts to
determine this foundation of the States broader authority, Windsor, supra at
2691, is warranted in this instance. State courts and state law must be allowed to
define marriage, as it has done since the founding of the republic. Decisions of this
Circuit, as well as Baker, Newdow and Windsor, uphold the States power over
domestic relations, including the core issue of the definition of marriage -- even
when constitutional claims are made.
In summary, the Bostic panel possessed no authority to disregard Baker,
which constitutes the one Supreme Court decision on the merits regarding samesex marriage. While the divided panel speculated as to doctrinal developments
regarding Supreme Court decisions, application of Baker should have been all that
was necessary to decide Bostic. Neither the Bostic panel, nor the District Court,
was free to determine the Supreme Courts doctrinal developments. DeBoer,
supra. Nor is this Court. Moreover, the Bostic panel did not consider the issue of
jurisdiction or overriding principles of federalism as related to the longstanding
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prerogative of the State to define marriage -- and state courts to adjudicate

marriage -- recognized in Wilkins, Baker, Newdow, Windsor and DeBoer. As the
Court recently stated in DeBoer, the Framers, in dividing sovereignty between the
federal government and the State, contemplated that the States would exercise . . .
their historic and . . . nearly exclusive power . . . [of] defining marriage as they see
it. DeBoer, Id. at 6.
b
Respectfully, Bostic was wrongly decided
Although Bostic applied strict scrutiny to its analysis of the same-sex
marriage claims in that case, the dissent by Judge Niemeyer in the 2-1 decision
applied rational basis review and would have upheld Virginia law. Because the
Attorney General believes that Judge Niemeyers opinion was the correct one, he
offers his analysis in argument against the Bostic majority opinion. 760 F.3d at
385. These points are fully developed in the attached Memorandum in Opposition
to the Preliminary Injunction (Attachment 2) and include the points that no
fundamental right to same-sex marriage exists, that limiting marriage to the union
of a man and a woman does not implicate a suspect class requiring heightened
scrutiny, that same-sex marriage restrictions do not discriminate on the basis of sex
and that South Carolinas definition of marriage, dating from colonial times, a
union of a man and a woman is supported by rational grounds.
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What [the Court has] the authority to decide . . . is a legal question: Does
the Fourteenth Amendment to the United States Constitution prohibit a State from
defining marriage as a relationship between one man and one woman?, 2014 WL
5748990, at *1. DeBoer answered that question with a strong negative. The same
conclusion applies to South Carolina law. 5 From the founding of the Republic to
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2003, every State defined marriage as a relationship between a man and a woman,
meaning that the Fourteenth Amendment permits, though it does not require, States
to define marriage in that way.DeBoer, 2014 WL 5748990, at 9. The Sixth
Circuit recognized that Loving v. Virginia, 388 U.S. 1 (1967) did not change the
historic definition of marriage unlike the inflated view of Loving by two members
of the Bostic panel. As stated by DeBoer: When the Court decided Loving,
marriage between a man and a woman no doubt [was] thought of . . . as essential
to the very definition of that term. Id. at 16. Loving addressed, and rightly
corrected, an unconstitutional [racial] eligibility requirement for marriage; it did
not create a new definition of marriage. . . . When Loving and its progeny used the
word marriage, they did not redefine the term but accepted its traditional
meaning. Id. at 16 and 17.
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 Attorney General argues against the Bostic
precedent.
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The Court found that no fundamental right to same-sex marriage and

recognized that [t]he Supreme Court has never held that legislative classifications
based on sexual orientation receive heightened review and indeed has not
recognized a new suspect class in more than four decades. Id. at p. 18.
DeBoer relied on two grounds to find the bans on same-sex marriage to be
rational:
some rational basis, must exist for the definition. What is it? Two at a
minimum suffice to meet this low bar. One starts from the premise
that governments got into the business of defining marriage, and
remain in the business of defining marriage, not to regulate love but to
regulate sex, most especially the intended and unintended effects of
male-female intercourse.: children.
Id. at 9.
By creating a status (marriage) and by subsidizing it (e.g., with taxfiling privileges and deductions), the States created an incentive for
two people who procreate together to stay together for purposes of
rearing offspring.
To take another rational explanation for the decision of many States
not to expand the definition of marriage, a State might wish to wait
and see before changing a norm that our society (like all others) has
accepted for centuries. . . . A State still assessing how [same-sex
marriage] has worked, whether in 2004 or 2014, is not showing
irrationality, just a sense of stability and an interest in seeing how the
new definition has worked elsewhere.
Id. at 11.
So far, not a single United States Supreme Court Justice in American
history has written an opinion maintaining that the traditional
definition of marriage violates the Fourteenth Amendment.
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For these reasons and those set forth in our Memorandum in
Opposition to Preliminary Injunction, South Carolina law is Constitutional.

2
The State will suffer irreparable injury if the stay is denied
[A]ny time a State is enjoined by a court from effectuating statutes enacted
by representatives of its people, it suffers a form of irreparable injury New Motor
Vehicle Bd. of California v. Orrin W. Fox Co., 434 U.S. 1345, 1351,
(1977)(Rehnquist, J., in chambers, granting a stay); accord Maryland v. King, 133
S. Ct. 1, 3(2012) (Roberts, C.J., in chambers) (granting a stay); Planned
Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 134 S. Ct. 506 (2013)
(Scalia, J., concurring in denial of application to vacate stay). Absent a stay, the
State of South Carolina suffers an irreparable injury for this reason, also, because
under the Order of the District Court, it cannot enforce its statutes and the
Constitutional amendment adopted by its people or observe the centuries of
common law recognizing only a marriage of a man and a woman. This injury is to
the interest of the State and its people in their right of self-government. Schuette v.
Coalition to Defend Affirmative Action, 134 S. Ct. 1623, 163637 (2014)( Our
constitutional system embraces, too, the right of citizens to debate so they can learn
and decide and then, through the political process, act in concert to try to shape the
course of their own times. This injury is also to the right of the State and its
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people to determine marital law. As stated in Windsor, [e]ach state as a sovereign

has a rightful and legitimate concern in the marital status of persons domiciled
within its borders. Windsor, 133 S. Ct. at 2691.
The recognition of civil
marriages is central to state domestic relations law applicable to its residents and
citizens. Id. (emphasis added). To allow the Order of the District Court to take
affect absent review by the Court of Appeals, would greatly harm these interests of
the State.
The State will also suffer irreparable injury if the stay is denied because
same-sex marriages will be allowed pending a decision by this Court on the merits
of the appeal. If the State prevails on appeal, same-sex marriages will end creating
legal confusion as to the status of those married in the interim.
3
Issuance of the Stay will not Substantially Injure
the other Parties Interested in the Proceeding
Plaintiffs will not be substantially harmed. Although the District Court has
determined that they have a constitutional right to marry, the issue is not settled.
The Sixth Circuit has reached a different conclusion, and the issue would appear to
be headed to the United States Supreme Court now that a split among the Circuits
exists. So far, the United States Supreme Court has not departed from its decision
in Baker v. Nelson, supra, in which the Court found no federal issue. Moreover,
we have argued below and will assert in this Court defenses and authority not
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considered by the Panel in Bostic. Although Plaintiffs want to get married now,
they will get their wish if they ultimately prevail in this appeal.
4
Where the public interest lies
The public interest lies in a full consideration of the validity of South
Carolina laws by this Court, and time for the United States Supreme Court to
determine the constitutional issues involved, as seems likely now with the DeBoer
decision. At this stage, the injury to the State and its people from allowing
marriages to go forward in the interim outweighs any perception of harm to the
Plaintiffs. The scales tip solidly in favor of granting a stay.
CONCLUSION
The Attorney General respectfully requests that this Court stay the District
Courts decision in this case until such time as this Court makes a final decision
regarding this appeal. Alternatively, should this Court, arguendo, decide to deny
this Motion for Stay, the Attorney General respectfully requests that this Court
issue a temporary stay to allow time for him to apply to a Justice of the Supreme
Court for a stay.
Respectfully submitted,
ALAN WILSON
Attorney General
Federal ID No.10457
[Signature block continues next page]
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ROBERT D. COOK
Solicitor General
Federal ID No. 285
Email: bcook@scag.gov
/s/ J. Emory Smith, Jr.
J. EMORY SMITH, JR.
Deputy Solicitor General
Federal ID No. 3908
Email: esmith@scag.gov
Post Office Box 11549
Columbia, South Carolina 29211
Phone: (803) 734-3680
Fax: (803) 734-3677
Counsel for Defendant-Appellant
Attorney General
November 13, 2014
Pursuant to Fourth Circuit Rule 27(a), Counsel for has emailed other counsel in
this case about the intent to file this Motion. Counsel for Plaintiffs stated that they
do not consent but did not advise whether they plan to file a response in
opposition. Counsel for Defendant Judge Condon states that Judge Condon does
not take a position either way on the Motion and that he will not file a document in
support or opposition to it. The Governor has been dismissed as a party to this
case.

J. EMORY SMITH, JR.
November 13, 2014
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ATTACHMENT 1
To Motion for Emergency Stay
Bleckley v. Wilson
14-2241
Order of the District Court, November 12, 2014
2:14-cv-04010-RMG Date Filed 11/12/14 Entry Number 37

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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Colleen Therese Condon and

Ann Nichols Bleckley,
Plaintiffs,
v.
Nimrata (Nikki) Randhawa Haley,
in her official capacity as Governor
of South Carolina; Alan Wilson, in
his official capacity as Attorney
General; and Irvin G. Condon, in his
official capacity as Probate Judge of
Charleston County,
Defendants.
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Civil Action No. 2: 14-401O-RMG
ORDER
Plaintiffs, a same sex couple seeking to marry, challenge South Carolina's statutory and
constitutional provisions prohibiting marriage between persons of the same sex. S.C. Code Ann.
20-1-10,20-1-15; S.C. Constitution Art. XVII 15. 1 Plaintiffs assert such provisions of
South Carolina law infringe upon their fundamental right to marry, a liberty interest protected by
the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the
United States Constitution. (Dkt. No.1). Plaintiffs argue that the Fourth Circuit's recent
decision in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert. denied, Schaefer v. Bostic, l35
S. Ct. 308 (2014), is controlling. (Dkt. No. 13). Defendants Nikki Haley and Alan Wilson, sued
I S.C. Constitution Art. XVII, 15 provides that a "marriage between one man and one
woman is the only lawful domestic union that shall be valid or recognized in this State." S.C.
Code Ann. 20-1-10(B)-(C) prohibit marriage between two men or two women and 20-1-15
provides that "[a] marriage between persons of the same sex is void ab initio and against the
public policy of the State."
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in their official capacities as the Governor and Attorney General of South Carolina, assert that
matters related to marital status are reserved exclusively to the states. (Dkt. No. 29 at 11-29; Dkt.
No. 33-1 at 8-26).2 These two defendants further argue that the Fourth Circuit's recent decision
in Bostic is wrongly decided because that court improperly disregarded the controlling law of
Baker v. Nelson, 291 Minn. 310 (1971), summarily dismissed, 409 U.S. 810 (1972), and the
Fourth Circuit's own precedent in finding that the Due Process Clause of the Fourteenth
Amendment created a fundamental right of same sex couples to marry. (Dkt. No. 29 at 5-11;
Dkt. No. 33-1 at 2-8; Dkt. No. 34 at 2-3). Defendant Condon, who began accepting same sex
marriage applications on October 8, 2014, in compliance with Bostic, presently "takes no
position regarding the merits ofthe Plaintiffs' claims for relief." (Dkt. No. 35 at 6).
Plaintiffs have now moved for summary judgment and seek declaratory and injunctive
relief. (Dkt. No. 13). Defendants Haley and Wilson oppose that motion. As further set forth
below, the Court finds that Bostic provides clear and controlling legal authority in this Circuit
and that Plaintiffs are entitled to judgment as a matter of law.
Legal Standard
A party seeking summary judgment bears the burden of showing that "there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.s. 317,322 (1986). All facts and inferences from
those facts must be viewed in a light most favorable to the non-moving party. Shealy v. Winston,
2 Defendants Wilson and Haley incorporated into their memorandum in opposition to

Plaintiffs' motion for summary judgment (Dkt. No. 34) their briefs in support oftheir motion to
dismiss (Dkt. No. 33-1) and in opposition to Plaintiffs' motion for a preliminary injunction. (Dkt.
No. 29). Therefore, the Court has considered and cited to Defendants Haley and Wilson's other
memoranda in passing upon Plaintiffs' motion for summary judgment.
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929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs,
conjecture, speculation, or conc1usory allegations to defeat a motion for summary judgment. See,
Baber v. Hosp. Corp. ofAm., 977 F.2d 872, 874-75 (4th Cir. 1992).
Factual Background
The essential facts involved in this litigation are not contested. Plaintiffs applied for a
marriage license in the office of Defendant Condon, the duly elected Probate Judge of Charleston
County, on October 8, 2014, and he accepted the Plaintiffs' application and filing fee. Defendant
Condon indicated at that time that he was prepared to issue Plaintiffs a marriage license upon the
expiration of the mandatory 24-hour waiting period. Later that same day, Defendant Wilson,
acting in his official capacity as Attorney General of South Carolina, initiated an action in the
original jurisdiction of the South Carolina Supreme Court seeking an injunction prohibiting
Defendant Condon from granting a marriage license to Plaintiffs until a pending federal
constitutional challenge had been heard and decided. (Dkt. Nos. 13-4, 13-8, 13-10, 13-11).
In response to the Attorney General's petition, the South Carolina Supreme Court
accepted the matter in its original jurisdiction for the sole purpose of entering an order enjoining
any probate judge from issuing a marriage license to a same sex couple pending disposition of
the legal challenge to South Carolina's same sex marriage ban in the United States District Court
for the District of South Carolina. State ex rei. Wilson v. Condon, - - - S.E.2d - - - -, 2014 WL
5038396, at *2 (S.c. Oct. 9, 2014). Thereafter, on October 15,2014, Plaintiffs initiated this
action in the Charleston Division of the United States District Court for the District of South
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Carolina. 3
Discussion
A.
Standing
A threshold question in every federal case is whether the plaintiff has standing to bring
the action. Warth v. Seldin, 422 U.S. 490, 498 (1975). The plaintiff bears the burden of
demonstrating a "personal stake in the outcome of the controversy" that will be sufficient to
warrant the party's "invocation of federal-court jurisdiction." Summers v. Earth Island Inst., 555
U.S. 488, 493 (2009) (citation omitted). This requires the plaintiff to show: (1) she is "under
threat of suffering 'injury in fact' that is concrete and particularized"; (2) "the threat [is] actual
and imminent, not conjectural or hypothetical"; (3) the threatened injury is "fairly traceable to the
challenged action of the defendant"; and (4) it is likely that "a favorable judicial decision will
prevent or redress the injury." Id.
The Bostic Court found that two of the plaintiffs, a same sex couple seeking to marry
under Virginia law, had standing because the state's same sex marriage ban had prevented the
couple from obtaining a marriage license. Bostic, 760 F3d at 372. The Fourth Circuit found
When the South Carolina Supreme Court issued its order in Wilson v. Condon on
October 9,2014, the sole pending challenge to South Carolina's statutory and constitutional
provisions relating to same sex marriage involved a same sex couple that had been lawfully
married in the District of Columbia and sought recognition of their marital status by the State of
South Carolina. Bradacs v. Haley, C.A. No. 3:13-2351 (D.S.C.). This action, brought by
Plaintiffs Condon and Bleckley, represents the first legal effort by a same sex couple to challenge
the denial of an application for a South Carolina marriage license. The Bradacs case is presently
pending before Judge Michelle Childs in the Columbia Division of the United States District
Court for the District of South Carolina. Judge Childs recently ruled that the plaintiffs in
Bradacs, because they were legally married in the District of Columbia, had no standing to assert
a challenge to South Carolina's ban on same sex marriage. Bradacs v. Haley, C.A. No. 3:13
2351, Dkt. No. 89 at 13 n.7 (D.S.C. November 10,2014).
3
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that "this license denial constitutes an injury" to these plaintiffs sufficient to provide them
standing. Id.
In light of the uncontested facts set forth above, it is clear that Plaintiffs have the type and
degree of injury to have standing to assert their claims. Plaintiffs' application for a marriage
license, and the denial ofthat license under South Carolina's laws prohibiting same sex marriage,
make their injury "concrete" and "actual" and that injury is "fairly traceable to the challenged
action." Id. Further, Plaintiffs' injuries are fairly traceable to the action and/or inaction of
Defendants Wilson and Condon, as explained below, and a favorable judicial decision could
redress Plaintiffs' injuries.
B.
Eleventh Amendment Immunity

Defendants Haley and Wilson have further argued that an action against them is barred by
the Eleventh Amendment. (Dkt. No. 29 at 29-32). It is well settled that the Eleventh
Amendment does not bar suits against officers of the state where a plaintiff has (1) sued a state
officer for ongoing violations of federal law; (2) seeks only injunctive and declaratory relief; and
(3) the state officer is "clothed with some duty in regard to the enforcement of the laws of the
state and who threaten and are about to commence proceedings ... to enforce against parties
affected [by] an unconstitutional act." Exparte Young, 209 U.S. 123, 155-156 (1908).
No party challenges the naming of Defendant Condon as a proper party defendant to this
action. As the duly elected probate judge of Charleston County, Defendant Condon is vested
with the authority to take applications for and to issue marriage licenses to eligible couples. S.C.
Code Ann. 20-1-220, 20-1-260, 20-1-270. Further, it is uncontested that Plaintiffs applied to
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Defendant Condon for a marriage license and that the state statutory and constitutional provisions
under challenge in this action barred the issuance of the license.
The Bostic Court specifically addressed this issue in regard to the clerk of the circuit court
for the city of Norfolk who had the responsibility under Virginia law to issue and record marriage
licenses. Bostic v. Schaefer, 760 F.3d at 371. The Fourth Circuit concluded that the Eleventh
Amendment did not bar an action against the defendant clerk of court because he "bears the
requisite connection to the enforcement of the Virginia Marriage Laws due to his role in granting
and denying applications for marriage licenses." Id. at n.3. Similarly, Defendant Condon's role
under the South Carolina statutory scheme for the issuance of marriage licenses makes him an
appropriate defendant in this constitutional challenge, and the action against him is not barred by
the Eleventh Amendment.
Defendant Wilson and Haley argue that they are not appropriate defendants
because the Eleventh Amendment bars claims against them. They are correct that there must be
a meaningful nexus between the named defendant and the asserted injury of the plaintiff. By
itself, a generalized duty of a named defendant to uphold the laws is not sufficient. E.g.
McBurney v. Cuccinelli, 616 F.3d 393, 401 (4th Cir. 2010).

Defendant Wilson has a duty as the state's chief prosecutor and attorney to enforce the
laws of the state. He has recently initiated litigation in the original jurisdiction of the South
Carolina Supreme Court in regard to the same sex marriage laws under challenge, specifically
seeking to enjoin Judge Condon from issuing marriage licenses to Plaintiffs and other same sex
couples. See Wilson v. Condon, 2014 WL 5038396. He has also indicated an intention in filings
in this Court to vigorously enforce the state law provisions at issue in this litigation and to
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challenge efforts by Plaintiffs to vindicate their claimed fundamental right to marry under the
United States Constitution. Thus, like the Attorney General in Ex parte Young, Defendant
Wilson is "clothed with some duty in regard to the enforcement of the laws ofthe state" and has
in fact threatened and commenced actions "to enforce against parties" provisions of state law
allegedly violating the Federal Constitution. 129 U.S. at 155-56. As such, Defendant Wilson is
a proper defendant in this action, and the claims against him are not barred by the Eleventh
Amendment. 4 See id.; Kitchen v. Herbert, 755 F.3d 1193, 1201-1203 (lOth Cir. 2014); cj
McBurney v. Cuccinelli, 616 F.3d 393, 402 (4th Cir. 2010) (holding Ex parte Young exception
did not apply because the state Attorney General "ha[ d] not enforced, threatened to enforce, or
advised other agencies to enforce" the statutory provision at issue).
Plaintiffs' claims against Defendant Haley are not nearly so straightforward. It is clear
that simply being the state's chief executive sworn to uphold the laws is not sufficient to invoke
Ex parte Young. The Court has before it little evidence to support an argument that Defendant
Haley has taken enforcement action or engaged in other affirmative acts to obstruct Plaintiffs'
asserted fundamental right to marry. Cj Bowling v. Pence, 2014 WL 4104814 at *3-4 (S.D. Ind.
Aug. 19,2014) (reversing a prior order dismissing the Governor of Indiana as a defendant after
he took "affirmative action to enforce the statute"). Therefore, the Court finds that Plaintiffs'
claims against Defendant Haley are barred by the Eleventh Amendment, and she is, therefore,
4 Judge Childs reached the same conclusion in the Bradacs case. No. 3:l3-2351, Dkt.
No. 89 at 20 ("Defendant Wilson cannot take such action to specifically enforce the laws at issue
and then hope to invoke Eleventh Amendment immunity under a theory that he simply has only
'general authority."').
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dismissed as a defendant in this action. 5

C.
Rooker-Feldman Doctrine
Defendant Wilson argues that Plaintiffs' constitutional challenge to South Carolina's ban
on same sex marriage is barred by the Rooker-Feldman doctrine because the South Carolina
Supreme Court recently granted a stay in Wilson v. Condon, 2014 WL 5038396. (Dkt. No. 29 at
3-5). Defendant misapprehends the nature and scope of this doctrine. The Rooker-Feldman
doctrine provides that a losing party in a state court proceeding may not file an action in federal
district court to review and reject a state court judgment. Lance v. Dennis, 546 U.S. 459, 464
(2006); Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (citing Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923)). Rooker-Feldman is a "narrow" doctrine and "applies
only when a federal court is asked to review the final decisions of a state court." Morkel v.
Davis, 513 F. App'x 724, 727 (10th Cir. 2013) (emphasis in original); Exxon Mobil, 544 U.S. at
292 ("This Court has repeatedly held that the pendency of an action in the state court is no bar to
proceedings concerning the same matter in the Federal court having jurisdiction. ") (internal
quotations omitted); David Vincent, Inc. v. Broward Cty., Fla., 200 F.3d 1325, 1332 (lIth Cir.
2000) (holding Rooker-Feldman doctrine did not apply because the state court's "denial of the
temporary injunction is not a final or conclusive judgment on the merits").
The state court proceeding relied on by Defendant Wilson was an action brought by him,
in his capacity as Attorney General of South Carolina, in the original jurisdiction of the South
Carolina Supreme Court against Defendant Condon, the probate judge of Charleston County,
Again, Judge Childs reached the same conclusion. Bradacs, No. 3:13-2351, Dkt. No. 89
at 18.
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after Condon announced his intention to issue marriage licences in adherence to the Fourth
Circuit's decision in Bostic. At the time, the only case pending in United States District Court
for the District of South Carolina relating to the State's refusal to recognize same sex marriage
was Bradacs v. Haley, C.A. No. 3:13-2351, an action by a same sex couple married in the
District of Columbia who sought to have their marriage recognized under South Carolina law.
The South Carolina Supreme Court accepted the Wilson v. Condon case in its original
jurisdiction and stayed any issuance of marriage licenses to same sex couples by South Carolina
Probate Judges pending the disposition ofthe constitutional questions in federal district court
"for the limited purpose of maintaining the status quo until the Federal District Court can resolve
the case pending before it." Wilson v. Condon, 2014 WL 5038396, at *2.
Subsequent to the South Carolina Supreme Court's grant of the stay in Wilson, Plaintiffs
initiated this action in the Charleston Division of the United States District Court challenging
state statutes and constitutional provisions prohibiting same sex marriage and seeking the
issuance of a marriage license. The stay granted by the South Carolina Supreme Court is hardly a
final judgment on the merits but simply an understandable effort by the South Carolina Supreme
Court to maintain the status quo while the federal district courts addressed the constitutionality of
the State's same sex marriage ban. The South Carolina Supreme Court clearly intended the
federal court to rule on the constitutionality of the same sex marriage ban and for the state courts
to abstain from doing so, as it ordered that "unless otherwise ordered by this Court, the issue of
the constitutionality of the foregoing state law provisions shall not be considered by any court in
the South Carolina Unified Judicial System while that issue remains pending before the Federal
District Court." 2014 WL 5038396, at *2. The South Carolina Supreme Court's grant ofa stay
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to temporarily maintain the status quo did not (and could not) interfere with or impair the
Plaintiffs' right to seek protection of what they assert is a fundamental right to marry in the
United States District Court or this Court's ability to exercise its jurisdiction and to provide
Plaintiffs, if vindicated, appropriate declaratory and injunctive relief.
D.
Absentia Doctrines
Defendant Wilson argues that this Court should abstain under Younger. However, the
Younger doctrine only applies in three "exceptional" circumstances: interference with state
criminal prosecutions, interference with civil enforcement proceeds akin to criminal
prosecutions, and interference with "civil proceedings involving certain orders that are uniquely
in furtherance of the state courts' ability to perform their judicial functions." Sprint Commc 'n,
Inc. v. Jacobs, 134 S. Ct. 588,587, (2013) (holding these three categories "define Younger's
scope"). However, Defendants have not argued that this case presents any of these exceptional
circumstances. "Because this case presents none of the circumstances the [Supreme] Court has
ranked as 'exceptional,' the general rule governs: The pendency of an action in a state court is no
bar to proceedings concerning the same matter in the Federal court having jurisdiction." Id. at
588 (internal quotations omitted).
6 Defendants Wilson and Haley also argue that this Court should decline to consider this
case until a decision is reached in Bradacs under the first-to-file rule. (Dkt. No. 29 at 35-37).
However, Defendants acknowledge that "[t]he most basic aspect of the first to file rule is that it is
discretionary," and that "[t]he decision and the discretion belong to the district court." Id. at 36
(quoting Plating Res., Inc. v. UTI Corp., 47 F. Supp. 2d 899, 903 (N.D. Ohio 1999). Further,
Judge Childs has already ruled that the issue central to this action, Plaintiffs' right to marry as a
same sex couple, is not before her because the plaintiffs in Bradacs have no standing to assert the
claim because they are already legally married. Given the differing factual scenarios at issue in
Bradacs and the case sub judice as well as the fundamental nature of the right at issue, the Court
declines to wait until a judgment is entered in Bradacs to address Plaintiffs' claims.
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Defendant Wilson also argues that this Court should decline to consider this case until a
decision is reached in Bradacs under the first-to-file rule. (Dkt. No. 29 at 35-37). However,
Defendants acknowledge that "the most basic aspect of the first to file rule is that it is
discretionary," and that "[t]he decision and the discretion belong to the district court." (ld. at 36
(quoting Plating Res., Inc. v. UTI Corp., 47 F. Supp. 2d 899, 903 (N.D. Ohio 1999. Further,
Judge Childs has already ruled that the issue central to this action-Plaintiffs' right to marry as a
same sex couple-is not before her because the plaintiffs in Bradacs are already married and, thus,
do not have standing to assert the claim. Given the differing factual scenarios at issue in Bradacs
and the case sub judice as well as the fundamental nature of the right at issue, the Court declines
to wait until a judgment is entered in Bradacs to address Plaintiffs' claims.
D.
Merits of the Constitutional Claims

In addressing Plaintiffs' constitutional claim to a fundamental right to marry, this Court
does not write on a blank canvas. In United States v. Windsor, 133 S. Ct. 2675 (2013), the
United States Supreme Court struck certain provisions of the Defense of Marriage Act
("DOMA"). Those provisions denied the surviving spouse of a state-sanctioned same sex
marriage under New York law the benefits of a federal estate tax deduction available to surviving
spouses of opposite sex marriages. Writing for the majority, Justice Kennedy stated that DOMA
"writes inequality into the entire United States Code" by identifying "a subset of state-sanctioned
marriages" and making "them unequal." Id. at 2694. The Court reasoned that by denying certain
federal benefits to members of same sex marriages, DOMA imposed "a disability on the class"
that violated their "personhood and dignity" in violation of their liberty interest protected by the
Due Process Clause of the Fifth Amendment of the United States Constitution. Id. at 2695-96.
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Although the Windsor holding dealt only with the validity of certain provisions of federal
statutory law, Justice Scalia, writing in dissent, correctly predicted that an assault on state same
sex marriage bans would follow Windsor. Id. at 2710.
In the approximately 17 months since the Windsor decision, federal courts in virtually
every circuit and in every state with a same sex marriage ban have heard lawsuits challenging the
constitutionality of such state law provisions. These suits commonly involve challenges by same
sex couples seeking marriage licenses and/or same sex couples validly married in another state
attempting to obtain home state recognition of their marital status. Four Federal Courts of
Appeal have held that state law bans on same sex marriage violate the constitutional rights of
same sex couples: the Seventh, Ninth, Tenth and, most importantly for our purposes, the Fourth
Circuit. Further, the United States Supreme Court, on October 6, 2014, declined to grant review
ofthe decisions of the Fourth, Seventh and Tenth Circuits, leaving their judgments in place. See
Latta v. Otter, - - - F.3d - - - -,2014 WL 4977682 (9th Cir. Oct. 7, 2014); Baskin v. Bogan, 766
F.3d 648 (7th Cir. 2014), cert. denied, 2014 WL 4425162 (Oct. 6, 2014); Bostic v. Schaefer, 760
F.3d 352 (4th Cir. 2014), cert. denied, Schaefer v. Bostic, 135 S. Ct. 308 (2014); Bishop v.
Smith, 760 F.3d 1070 (10th Cir. July 18,2014), cert. denied, 2014 WL 3854318 (Oct. 6,2014);
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), cert. denied, 2014 WL 3841263 (Oct. 6,
2014). One appellate court, the Sixth Circuit, recently held there is no constitutional right to
same sex marriage, overturning lower court decisions in Kentucky, Michigan, Ohio and
Tennessee. 7 Additionally, a clear majority of federal district courts that have addressed this issue
7 DeBoer v. Snydner, - - - F.3d - -. ,2014 WL 5748990 (6th Cir. Nov. 6,2014),

overturning lower court decisions in Love v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky. 2014);
Henry v. Himes, - - - F. Supp. 2d - - - -, 2014 WL 1418395 (S.D. Ohio Apr. 14,2014); DeBoer v.
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have found state same sex marriage bans unconstitutional. 8

Plaintiffs accurately note that four out of five appellate court decisions and the
overwhelming majority of the district court decisions favor their position. On the other hand,
Defendants, while acknowledging the body of recent case law going mostly against them, argue
that at least one appellate court and a few district courts have adopted their arguments and the
United States Supreme Court has yet to squarely address the issue. While this debate over
precedent and constitutional principle is interesting, this Court finds most persuasive the clearly
stated authority ofthe Fourth Circuit's seminal decision in Bostic. It is axiomatic that a decision
of a circuit court, not overruled by the United States Supreme Court, is controlling precedent for
Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014); Lee v. Orr, No. 13-cv-8719, 2014 WL 684680
(N.D. Ill. Feb. 21,2014); Bourke v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky. 2014); Obergefell v.
Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013).
8 See Lawson v. Kelly, No. 14-cv-0622 (W.D. Mo. Nov. 7,2014); Marie v. Moser, No.
14-cv-2518, 2014 WL 5598128 (D. Kan. Nov. 4, 2014); Connolly v. Jeanes, No. 2: 14-cv-00024,
2014 WL 5320642 (D. Ariz. Oct. 17,2014); Majors v. Horne, - - - F. Supp. 3d - - - -,2014 WL
5286743 (D. Ariz. Oct. 16,2014); Fisher-Borne v. Smith, - - - F. Supp. 3d - - - -, 2014 WL
5138914 (M.D.N.C. Oct. 14,2014); Hamby v. Parnell, - - - F. Supp. 3d - - - -, 2014 WL 5089399
(D. Alaska Oct. 12,2014); Gen. Synod ofthe United Church ofChrist v. Resinger, 12 F. Supp.
3d 790 (W.D.N.C. 2014); Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014); Bowling v.
Pence, - - - F. Supp. 2d - - - -, 2014 WL 4104814 (S.D. Ind. Aug. 19,2014); Burns v.
Hickenlooper, No. 14-cv-1817, 2014 WL 3634834 (D. Colo. July 23, 2014) (preliminary
injunction), made permanent by 2014 WL 5312541 (D. Colo. Oct. 17, 2014); Baskin v. Bogan,
12 F. Supp. 3d 1144 (S.D. Ind. 2014), affd, 766 F.3d 649 (7th Cir. 2014); Wolfv. Walker, 986 F.
Supp. 2d 982 (W.D. Wis. 2014), ajJ'd, 766 F.3d 648 (7th Cir. 2014); Whitewood v. Wolf, 992 F.
Supp. 2d 410 (M.D. Pa. May 20,2014); Geiger v. Kitzhaber, 994 F. Supp. 2d 1128 (D. Or. May
19,2014); Latta v. Otter, - - - F. Supp. 2d - - - -, 2014 WL 1909999 (D. Idaho May 13,2014),
ajJ'd, 2014 WL 4977682 (9th Cir. 2014); Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014),
ajJ'd 760 F.3d 352 (4th Cir. 2014); Bishop v. us. ex rei. Holder, 962 F. Supp. 2d 1252 (N.D.
Okla. 2014), ajJ'd, 760 F.3d 1070 (10th Cir. 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D.
Utah 2013), ajJ'd, 755 F.3d 1193 (lOth Cir. 2014). But see Conde-Vidal v. Garcia-Padilla, - -
F. Supp. 3d - - - -, 2014 WL 5361987 (D.P.R. Oct. 21, 2014); Robicheaux v. Caldwell, 2 F. Supp.
3d 910 (E.D. La. 2014).
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the district courts within the circuit. E.g., United States v. Brown, 74 F. Supp. 2d 648,652
(N.D.W.Va.1998).
The Bostic plaintiffs included a same sex couple who had unsuccessfully sought a
marriage license under Virginia law. The Virginia same sex marriage ban prohibited "marriage
between persons of the same sex." Va. Code Ann. 20-45.2. Judge Henry Floyd, writing for the
Bostic majority, noted that the Virginia statute was "similar" to the ban imposed under South
Carolina law found in S.C. Constitution Art. XVII, 15 and S.C. Code Ann. 20-1-10 and 20
1-15. Bostic, 760 F.3d at 368 n.l. The issues before the Bostic court were exhaustively briefed
by the parties as well as by numerous amicus briefs, including an amicus briefjoined by the State
of South Carolina and submitted by Defendant Wilson. (Dkt. No. 13-12).
As a preliminary matter, the Bostic Court addressed Virginia's argument that the United
States Supreme Court's summary dismissal of a 1971 Minnesota Supreme Court decision
upholding the state's same sex marriage ban in Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971),
summarily dismissed for "want of a substantial federal question," 409 U.S. 810 (1972), was
controlling. The Bostic Court rejected that argument, concluding that "doctrinal developments,,9
9 Defendant Wilson argues that Fourth Circuit decisions do not "recognize that a Circuit
Court or a District Court is at liberty to decide that a summary decision by the Supreme Court has
been abandoned or superseded by 'doctrinal developments.'" (Dkt. No. 29 at 7). However, the
United States Supreme Court recognized this very point in Hicks. Hicks v. Miranda, 422 U.S.
332, 344 (1975) (holding that where the Supreme Court "has branded a question as unsubstantial,
it remains so except when doctrinal developments indicate otherwise") (internal quotations
omitted) (emphasis added).
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in the more than forty years since Baker undermined any remaining force of the Supreme Court's
summary dismissal in Baker. 10 760 F.3d at 373.
The Bostic Court next turned its attention to the substantive claims of Plaintiffs,
concluding that they had a "fundamental right" to marry, which is protected by the Due Process
Clause and Equal Protection Clause of the Fourteenth Amendment. Id. at 375-78. In reaching
that conclusion, the Bostic Court traced the Supreme Court's recognition of the "expansive
liberty interest" in the "right to marry." Id at 376. The Court discussed Supreme Court
decisions invalidating Virginia's interracial marriage ban in Loving v. Virginia, 388 U.S. 1
(1967), striking a Wisconsin statute that required a person with child support obligations to
obtain a court order to marry in Zablocki v. Redhail, 434 U.S. 375, 383-84 (1978), and
overturning a Missouri statute that prohibited prisoners from marrying in Turner v. Safley, 482
U.S. 78,94-97 (1987). The Fourth Circuit held that these authorities established a liberty interest
in "a broad right to marry" and that the previous Supreme Court decisions in Windsor and
Lawrence v. Texas, 539 U.S. 558 (2003), "firmly position same-sex relationships within the
ambit of the Due Process Clauses' protection." 760 F.3d at 374.
Since the Bostic Plaintiffs had a fundamental right to marry, the Fourth Circuit held that
Virginia's effort to bar their marriage was subject to strict scrutiny under both the Due Process
Clause and the Equal Protection Clause of the Fourteenth Amendment and, as such, could be
justified only by a compelling state interest. Id at 375-77. Bostic then examined Virginia's
Such doctrinal developments include equal protection decisions that hold sex-based
classifications are quasi-suspect and warrant intermediate scrutiny and the Supreme Court's
decisions in Windsor and Lawrence v. Texas, 539 U.S. 558 (2003), which recognize that same
sex couples have a constitutional right to make their own "moral and sexual choices." Bostic,
760 F.3d at 374.
10
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various asserted state interests in maintaining its same sex marriage ban II and found that none
constituted a compelling state interest. Id. at 377-384.
Defendant Wilson argues that the "domestic relations exception" deprives federal courts
ofjurisdiction over this case, and this Court is mandated to abstain from addressing Plaintiff s
federal constitutional right to marry their same sex partner. (Dkt. No. 33-1 at 5-8). Contrary to
Defendant Wilson's contention, the Bostic Court did address the state asserted right to control
marital relations. The Fourth Circuit carefully analyzed the competing constitutional principles
of state control of marital relations and the federal protection under the Fourteenth Amendment
of the fundamental right of Hberty, including the "intensely personal choice" of "whom to
marry." Id at 378-80. Citing to Loving and Windsor, the Bostic Court concluded that states
must exercise their authority over marital relations "without trampling constitutional guarantees"
of same sex couples and rejected Virginia's claim that principles of federalism required a
different outcome. Id. at 378-80. It held that while states have the authority to regulate domestic
relations and marriage, "[s] tate laws defining and regulating marriage, of course, must respect the
constitutional rights of persons." Id. at 379 (quoting Windsor, 133 S. Ct. at 2691).12
These interests included the State's interest in maintaining control over the definition of
marriage, the history and tradition of opposite sex marriage, protection of the institution of
marriage, encouragement of responsible procreation, and promotion of the optimal child rearing
environment. Bostic, 760 F. 3d at 378.
11
12 Defendant Wilson's reliance on Elk Grove v. United Sch. Dist. v. Newdow, 542 U.S. 1
(2004) is misplaced, as Newdow's prudential standing analysis was explicitly abrogated in
Lexmark In! 'I., Inc. v. Static Control Components, Inc., 134 S.Ct. 1377 (2014). In Lexmark, the
Supreme Court held that "[j]ust as a court cannot apply its independent policy judgment to
recognize a cause of action that Congress has denied, ... it cannot limit a cause of action that
Congress has created merely because 'prudence' dictates." Id. at 1388.
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Defendant Wilson also points to the recent Sixth Circuit decision in DeBoer for the
proposition that federalism and respect for state and voter prerogatives should trump Plaintiffs'
liberty claims under the Fourteenth Amendment. (Dkt. No. 34). DeBoer concluded that same
sex couples should not look to the courts to protect their individual rights but to the "usually
reliable state democratic processes" for relief. 2014 WL 5748990, at *1. The Bostic Court
rejected that argument, observing that the "very purpose of the Bill of Rights 13 was to withdraw
certain subjects from the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be applied by the courts.
One's right to life, liberty, and property, to free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to a vote; they depend on the
outcome of no elections." Bostic, 760 F.3d at 379 (quoting W Va. State Bd. ofEduc. v. Barnette,
319 U.S. 624, 638 (1943)) (footnote in original).
After discussing all ofthese arguments, the Bostic Court concluded:
We recognize that same-sex marriage makes some people deeply
uncomfortable. However, inertia and apprehension are not
legitimate bases for denying same-sex couples due process and
equal protection of the laws. Civil marriage is one of the
cornerstones of our way of life. It allows individuals to celebrate
and publicly declare their intentions to form lifelong partnerships,
which provide unparalleled intimacy, companionship, emotional
support and security. The choice of whether and whom to marry
is an intensely personal decision that alters the course of an
individual's life. Denying same-sex couples this choice prohibits
them from participating fully in our society, which is precisely
13 The Fourteenth Amendment is not part of the Bill of Rights, but the excerpt from
Barnette is relevant here due to the Fourteenth Amendment's similar goal of protecting
unpopular minorities from government overreaching, see Regents ofUniv. ofCal. v. Bakke, 438
U.S. 265, 293 (1978), and its role in rendering the Bill of Rights applicable to the states, see
Duncan v. Louisiana, 391 U.S. 145, 147-48,88 S.Ct. 1444,20 L.Ed.2d 491 (1968).
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the type of segregation that the Fourteenth Amendment cannot

countenance.
Id. at 384.
The defendants in Bostic, as well as the unsuccessful defendants in the Seventh and Tenth
Circuit decisions, sought certiorari in the United States Supreme Court. The parties seeking
certiorari asserted essentially every argument advanced below and in this action, including the
contention that Baker v. Nelson constituted controlling authority and was inconsistent with the
appellate court decisions finding a fundamental right of same sex couples to marry. 2014 WL
4351585 (Bostic petition for certiorari); 2014 WL 4418688 (Bogan petition for certiorari); 2014
WL 3867714 (Bishop petition for certiorari); 2014 WL 3867706 (Kitchen petition for certorari).
On October 6, 2014, the United States Supreme Court declined to review the Fourth Circuit's
decision in Bostic, as well as the decisions in the Seventh and Tenth Circuits, and the stay that
had been granted the state of Virginia pending appeal was promptly lifted. 2014 WL 4230092
(U.S. Oct. 6,2014); 2014 WL 4960335 (4th Cir. Oct. 6, 2014).
Within days ofthe Supreme Court's denial of certiorari in Bostic, Judge Max Cogburn of
the Western District ofNorth Carolina issued a terse two-page order declaring North Carolina's
same sex marriage ban "unconstitutional as a matter oflaw." General Synod a/the United
Church a/Christ v. Resinger, - - - F. Supp. 3d - - - -, 2014 WL 5092288 (W.D.N.C. Oct. 10,

2014). Judge Cogburn observed that the issue before him was "neither a political issue nor a
moral issue" but simply a "legal issue" on what is "now settled law in the Fourth Circuit." Id. at
*1 (emphasis in original).
He then issued a permanent injunction against enforcement of all
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applicable state statutory and constitutional provisions relating to the North Carolina ban on
same sex marriage. Id.
A few days later, Judge William Osteen of the Middle District of North Carolina also
issued an order declaring the North Carolina same sex marriage ban unconstitutional in light of
Bostic. Fisher-Borne v. Smith, - - - F. Supp. 3d - - - -, 2014 WL 5138914 (M.D.N.C. Oct. 14,

2014). Judge Osteen observed that a "decision by a circuit court is binding on this court" and
that he could not discern any meaningful difference between the North Carolina same sex
marriage ban statute and the Virginia statute declared unconstitutional in Bostic. Id. at *2.
Soon after the Supreme Court's denial of certiorari in Bostic, West Virginia state officials
announced they would no longer enforce the state's same sex marriage ban in light ofthe Fourth
Circuit's decision. Maryland, by legislation, had authorized same sex marriage in 2013. Thus, at
the time Plaintiffs filed this action, South Carolina was the only state within the Fourth Circuit
that continued to prohibit same sex marriage.
This Court has carefully reviewed the language of South Carolina's constitutional and
statutory ban on same sex marriage and now finds that there is no meaningful distinction between
the existing South Carolina provisions and those of Virginia declared unconstitutional in Bostic.
The South Carolina statutory ban on same sex marriage provides that "marriage between persons
of the same sex is void ab initio and against the public policy of the State" and explicitly bans
marriage between two men and two women. S.C. Code Ann. 20-1-10, 20-1-15. The Virginia
statute declared unconstitutional in Bostic stated that "[a] marriage between persons of the same
sex is prohibited." Va. Code Ann. 20-45.2. The South Carolina constitutional provision under
challenge states that "[a] marriage between one man and one woman is the only lawful domestic
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union that shall be valid or recognized in this State," and the Virginia constitutional provision
declared unconstitutional in Bostic stated that "only a union between one man and one woman
may be a marriage valid in or recognized by this Commonwealth and its political subdivisions."
S.c. Constitution Art. XVII, 15; Va. Constitution Art. I, IS-A.
Defendant Wilson argues that this Court should not follow Bostic because the Fourth
Circuit disregarded its own precedents and should have considered the United States Supreme
Court's 1972 decision in Baker v. Nelson (finding that same sex marriage did not present a
substantial federal question) binding despite the more recent Supreme Court language from
Windsor (finding that a federal law failing to recognize same sex marriages violated the Fifth
Amendment and failing to cite Baker). (Dkt. No. 29 at 5-11). While a party is certainly free to
argue against precedent, even very recent precedent, the Fourth Circuit has exhaustively
addressed the issues raised by Defendants and firmly and unambiguously recognized a
fundamental right of same sex couples to marry and the power of the federal courts to address
and vindicate that right. Bostic, 760 F.3d at 377-84. Regardless of the passion of Bostic's
opponents, the predictability and stability of our judicial decisionmaking is dependent upon
lower courts respecting and enforcing the decisions of higher appellate courts. Not every
decision is heard and decided by the United States Supreme Court (in fact very few are), and
lower federal courts are not free to disregard clear holdings of the circuit courts of appeal simply
because a party believes them poorly reasoned or inappropriately inattentive to alternative legal
arguments. Coherent and consistent adjudication requires respect for the principle of stare
decisis and the basic rule that the decision of a federal circuit court of appeals left undisturbed by
United States Supreme Court review is controlling on the lower courts within the circuit. This
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principle, along with the foundational rule that the United States Constitution is the supreme law
of the land and state laws that run contrary to constitutionally protected rights of individuals
cannot be allowed to stand, are among the body of doctrines that make up what we commonly
refer to as the rule of law.
The Court finds that Bostic controls the disposition of the issues before this Court and
establishes, without question, the right of Plaintiffs to marry as same sex partners. The
arguments of Defendant Wilson simply attempt to relitigate matters already addressed and
resolved in Bostic. Any effort by Defendant Wilson or others to overrule Bostic should be
addressed to the Fourth Circuit and/or the United States Supreme Court.
Based upon the foregoing, the Court hereby declares that S.C. Code Ann. 20-1-10(B)
(C), S.C. Code Ann. 20-1-15 and S.C. Constitution Art XVII, 15, to the extent they seek to
prohibit the marriage of same sex couples who otherwise meet all other legal requirements for
marriage in South Carolina, unconstitutionally infringe on the rights of Plaintiffs under the Due
Process Clause and Equal Protection Clause of the Fourteenth Amendment of the United States
Constitution and are invalid as a matter of law. In order to protect and vindicate Plaintiffs' rights
under the United States Constitution, this Court hereby issues the following permanent injunction
and enjoins Defendant Wilson and Condon, their officers, agents, servants and employees, from:
1.
Enforcing S.C. Constitution Art. XVII, 15, S.C. Code Ann. 20-1-10 and 20-1
15 or any other state law or policy to the extent they seek to prohibit the marriage
of same sex couples;
2.
Interfering in any manner with Plaintiffs' fundamental right to marry or in the

issuance of a marriage license to Plaintiffs; and/or
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3.
Page 22 of 26
Refusing to issue to Plaintiffs a marriage license if, but for their sex, they are
otherwise qualified to marry under the laws of South Carolina.
E.
Request for Stay

Defendant Wilson urges this Court, in the event it grants Plaintiffs' motion for summary
judgment and request for permanent injunctive relief, to stay the effect of its order pending
appeal or, in the alternative, to grant a temporary stay pending the Fourth Circuit's review of a
request for an appeal stay. (Dkt. No. 36). A stay "is not a matter of right" and the party seeking
a stay bears the burden of demonstrating the presence of the exacting standards for the granting
of such relief. Nken v. Holder, 556 U.S. 418, 433-34 (2009). The standards for granting a stay
closely resemble the standards for the grant of a preliminary injunction, including (1) "a strong
showing" that the party requesting the stay will succeed on the merits; (2) the presence of
irreparable injury by the party seeking the stay; (3) whether the stay will substantially injure other
parties to the litigation; and (4) whether the public interest is served by the grant of the stay. Id.
at 434.
In light of the Court's analysis set forth above and its conclusion that Bostic is controlling
authority, it is quite evident that Defendant Wilson cannot carry his burden of showing a
likelihood of success on the merits. Further, the Defendant Wilson has not set forth any
meaningful evidence of irreparable injury should the petition for a stay be denied. On the other
hand, Plaintiffs, who seek to exercise their fundamental right to marry, have put forward
evidence of irreparable injury should a stay be granted. It is well settled that any deprivation of
constitutional rights "for even minimal periods of time" constitutes irreparable injury. Elrod v.
Burns, 427 U.S. 347, 373 (1976); llA Charles Alan Wright, Federal Practice & Procedure
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2948.1 (3d ed. 2014) ("Where there is an alleged deprivation of constitutional right[s] ... most
courts hold no further showing of irreparable injury is necessary."). Moreover, same sex
marriage bans have been found to impose on same sex couples "profound legal, financial, social
and psychic harms" that are "considerable." Latta, - - - F .3d - - - -, 2014 WL 4977682, at *11;
Baskin v. Bogan, 766 F.3d at 658. Finally, the public interest is best served by the denial of a
stay that would allow the continued enforcement of a state law found to be unconstitutional.
Having denied Defendant Wilson's motion to stay this Court's injunction pending appeal,
the Court must consider whether a temporary stay is appropriate to allow the Fourth Circuit an
opportunity to consider the Defendant's petition to stay pending appeal in an orderly and
reasonable fashion. This factual scenario is similar to the situation presented to the district court
in Marie v. Moser, No. 2:14-2518, 2014 WL 5800151 (D. Kan. Nov. 4, 2014). The Tenth
Circuit, of which the District of Kansas is a part, had previously ruled that same sex bans in
Oklahoma and Utah were unconstitutional in Bishop v. Smith and Kitchen v. Herbert, and the
United States Supreme Court had denied review in both cases. The district court in Marie
observed that while it was unwilling to issue a stay pending appeal because the defendant could
not meet the legal standard for the grant of an appeal stay, the issue of a temporary stay of one
week (until November 11,2014) to allow the Tenth Circuit to consider the defendant's request
was the "safer and wiser course." Id. at 37-38. The Tenth Circuit denied the request for a stay
on November 7,2014, and the defendant then petitioned the United States Supreme Court for a
stay. On November 10,2014, Justice Sotomayor stayed the district court's order in Marie
pending a response from the plaintiffs and further order of the Court. Moser v. Marie, - - - S. Ct.
- - - -, 2014 WL 5816952 (Nov. 10,2014).
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This Court finds that a brief one-week stay in the enforcement of this Court's injunction
is appropriate to allow the Fourth Circuit to receive Defendant's Wilson's petition for an appeal
stay and to consider that request in an orderly fashion. This may also allow the pending request
for an appeal stay in Marie to be addressed by Justice Sotomayor or the full United States
Supreme Court. 14 Therefore, the Court grants a temporary stay of the Court's injunction in this
matter until November 20,2014, at 12:00 noonY
Conclusion
Therefore, Plaintiffs' motion for summary judgment (Dkt. No. 13) is GRANTED. This
Court hereby issues the following permanent injunction and enjoins Defendant Wilson and
Condon, their officers, agents, servants and employees, from:
1.
Enforcing S.C. Constitution Art. XVII, 15, S.C. Code Ann. 20-1-10 and 20-1
15 or any other state law or policy to the extent they seek to prohibit the marriage
of same sex couples;
2.
Interfering in any manner with Plaintiffs' fundamental right to marry or in the

issuance of a marriage license to Plaintiffs; and/or
On October 8, 2014, Justice Kennedy issued a temporary stay ofthe Ninth Circuit
order in Latta v. Otter, which declared the Idaho same sex ban unconstitutional. Two days later,
on October 10,2014, the full Court denied the stay, and the previously issued temporary stay by
Justice Kennedy was vacated. 135 S.Ct. 345 (2014).
14
15 The Court is mindful that the strict application of the four part test for the granting of a
stay would result in the denial of even this one-week temporary stay. However, sometimes the
rigid application of legal doctrines must give way to practicalities that promote the interest of
justice. Providing this Court's colleagues on the Fourth Circuit a reasonable opportunity to
receive and consider Defendant Wilson's anticipated petition for an appeal stay justifies this brief
stay of the Court's injunctive relief in this matter.
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3.
Page 25 of 26
Refusing to issue to Plaintiffs a marriage license if, but for their sex, they are
otherwise qualified to marry under the laws of South Carolina. 16
Defendant Wilson's motion for a stay (Dkt. No. 36) is GRANTED IN PART AND
DENIED IN PART. Defendant Wilson's motion for an appeal stay is DENIED. Defendant
Wilson's motion for a temporary stay is GRANTED until November 20, 2014, at 12:00 noon.
Plaintiffs' motion for a preliminary injunction (Dkt. No. 12) and Defendants' motion to dismiss
(Dkt. No. 33) are DENIED as moot. Defendant Haley is dismissed as a party pursuant to the
Eleventh Amendment. Any motion by Plaintiffs for an award of attorney fees pursuant to 42
U.S.C. 1988 will be considered upon appropriate motions of the parties.
Counsel for Defendant Condon has raised with the Court a potential dilemma
Defendant Condon might confront if this Court granted Plaintiffs injunctive relief effectively
requiring him to issue to them a marriage license and the South Carolina Supreme Court failed to
dissolve the stay in Wilson v. Condon (as it has pledged to do) once the constitutionality of South
Carolina's same sex marriage ban was determined by a federal district court. 2014 WL 5038396
at *2. It is without question true that the South Carolina Supreme Court could not properly issue
orders to a defendant in federal litigation that would have the purpose or effect of limiting the
injunctive powers of the federal district court or direct him not to comply with a federal court
order. See 28 U.S.C. 2283 (allowing a federal court to enjoin state court proceedings "as
expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to
protect or effectuate its judgment"); Mitchum v. Foster, 407 U.S. 225,242-43 (1972) (holding
1983 "is an Act of Congress that falls within the 'expressly authorized' exception" of the Anti
injunction Act). This Court reads Wilson v. Condon as having no such purpose and was designed
simply to maintain the status quo regarding the issuance of same sex marriage licenses by South
Carolina probate judges until a federal district court had the opportunity to address the
constitutional challenge to the same sex marriage ban. Any decision to stay the effect of a
decision of a federal district court judgment would be the responsibility of the federal trial or
appellate courts, and no state court could properly issue any order interfering with that judgment
or directing federal court litigants to act contrary to the federal court judgment. Therefore, this
Court anticipates that the South Carolina Supreme Court's stay will be dissolved upon notice of
this Court's decision, as it has previously indicated its intention to do so. Should this assumption
prove incorrect, the parties should promptly advise this Court.
16
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AND IT IS SO ORDERED.
Richard Mark Gergel

United States District
Charleston, South Carolina
November jg, 2014
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ATTACHMENT 2
Bleckley v. Wilson
14-2241
Memorandum in Opposition to Preliminary Injunction and Alternative

Motion for Stay with attachments

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CHARLESTON DIVISION
Colleen Therese Condon and Anne
Nichols Bleckley,
)
)
)
Plaintiffs,
)
)
v.
)
)
Nimrata (Nikki) Randhawa Haley, in her )
official capacity as Governor of South
)
Carolina; Alan M. Wilson, in his official
)
Capacity as Attorney General; and Irvin
)
G. Condon in his official capacity as
)
Probate Judge of Charleston County,
)
)
Defendants.
)
__________________________________ )
Civil Action No. 2:14-cv-04010-RMG
MEMORANDUM OF GOVERNOR
AND ATTORNEY GENERAL
IN OPPOSITION TO MOTION FOR
PRELIMINARY INJUNCTION AND
ALTERNATIVE MOTION / REQUEST
FOR STAY
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 the Rooker-Feldman doctrine, the failure of the 2-1
Bostic panel 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 of Bostic 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 in Bostic 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
The Rooker-Feldman Doctrine 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 States
Constitution 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-cv02351-JFA] . . . Respondent and all other probate judges are hereby
directed not to issue marriage licenses to same-sex couples pending a decision by
the Federal District Court in Bradacs. (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. 1
0F
The RookerFeldman doctrine . . . prohibits the lower federal courts from reviewing or
rejecting state court judgments [and] serves as a jurisdictional bar to federal court review of each
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 under Rooker-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 the Bradacs decision. That
Order was specific to the Bradacs 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. Condon case, 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 distinguish Bradacs
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 By Bostics Conclusion That Baker 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
Bostic is 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). Baker dismissed an appeal from
the Minnesota Supreme Court for want of a substantial federal question on the precise issue
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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 in Hogge 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, in Hogge, 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.
concurring).
Hogge, 526 F.2d at 836 (Clark, J.

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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
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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 in McMellon, 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. The Bostic panel 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, Hogge and the subsequent decisions, referenced above, must be followed by this Court.
Hogge and these other earlier panel decisions control here, thereby requiring adherence to Baker.
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.
Bostic addressed 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
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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 question
jurisdiction 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 of
equity.
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

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jurisdiction, citing the domestic relations exception.
Page 10 of 57
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 Pullman and other forms of abstention as well,
it is clear, as Professor Harbach concludes, that the Wilkins case 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 Wilkins instead of
the Bostic decision. Like Baker v. Nelson, supra, which dismissed the same sex marriage issue
for want of a substantial federal question, Wilkins dismissed a federal claim regarding a marital
dispute, based upon alleged sex discrimination, for precisely the same reason as Baker want of
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a federal question. Therefore, this Court lacks subject matter jurisdiction and is obligated to
follow Wilkins, as well as Baker.
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 Baker should 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 as Newdow and 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), quoting Raines 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, supra at 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
Newdows parental status was 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 also Ankenbrandt v. Richards, 504
U.S. 609, 716 (Blackman, J. concurring) [The core of domestic relations adjudication
involves declarations of status, e.g. marriage, annulment, divorce, custody and paternity.].
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Justice Stevens, writing for the Court in Newdow, recognized there are certain occasions
when a federal court absolutely must intercede with respect to domestic relations issues, such as
those involving racial classifications. However, Newdow noted that such circumstances are
indeed extraordinary and rare. According to Justice Stevens,
. . . [w]hile rare instances arise in which it is necessary to answer a
substantial federal question that transcends or exists apart from the family
law issue, see e.g. Palmore v. Sidoti, 446 U.S. 429, 432-434 . . . (1984), in
general it is appropriate for the federal courts to leave delicate issues of
domestic relations to the state courts.
542 U.S. at 13 (emphasis added).
As the Court also noted in Palmore v. Sidoti, racial classifications are subject to the
most exacting scrutiny . . . and require justification in the form of a compelling state interest.
By contrast, the Court has previously concluded that discrimination, based upon ones sexual
orientation, must bear a rational relationship to a legitimate government purpose. Romer v.
Evans, 517 U.S. 620, 635 (1996). Romer employed a rational basis test in striking down an
amendment to the Colorado Constitution which permitted discrimination based upon ones
sexual orientation. See also Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) [federal policy of
Dont Ask, Dont Tell, does not create a suspect class, and is thus subject to rational basis
scrutiny and does not burden a fundamental right].
Thus, in this case, involving alleged
discrimination based upon sexual orientation, the general rule enunciated in Newdow that the
federal courts leave delicate issues of domestic relations to the state courts -- is controlling.
Accordingly, as Newdow mandates, this case should be dismissed on grounds of federalism.
Lower federal courts have applied Newdow to conclude that these courts should not hear
a case, despite federal claims. In Smith v. Huckabee, 154 F.Appx. 552, 555 (8th Cir. 2005), the
Court dismissed a 1983 suit, citing Newdow. In A.N. and D.N. v. Williams, 2005 WL 3003730
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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, supra is 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 marital
responsibilities. [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 States
on 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 of
husband 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. DOMAs
unusual 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 and
effect 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 by
the 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 Windsor dissent,
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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 off
alarm 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 Windsor is 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, but because 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, Windsor can 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 also In 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 in Newdow,
there will undoubtedly be family rights that are in dispute with respect to the scope of Art.
XVII, 15. As in Newdow, 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.
Windsors reliance upon federalism principles is incorrectly distinguished by the Fourth
Circuit in Bostic. 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 system
in 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 the
legitimate 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 belongs
to 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 upon Newdow and 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.
In Baker, 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 marital
restriction 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 in Hicks was 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 appeal
from 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 to
refuse 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 appeal
should 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 adhere
to 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 by
summary 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. In Hogge 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 want
of 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 Hogge Court 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 also Idaho 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 of Baker, the Fourth Circuit, in Bostic, supra
took it upon itself to disregard its own precedents, as well as the directive of the Supreme Court
in Hicks 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 Windsor did not discuss Baker in its
opinion or during oral argument. 760 F.3d at 374. Of course, as discussed above, Windsor was
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
Bostic Court, while acknowledging that Baker addressed 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 its
summary 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 in Agostini 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 direct
application 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 that Baker v. Nelson is binding upon them. See McConnell 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 that Baker is 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, Baker presents 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. Nelson as 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 was
adopted? . . . [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 of Baker in Bostic, 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 in Baker, based upon its own assessment of Supreme Court precedent, is contrary
to Hicks, Agostini, as well as the Fourth Circuits own cases. As discussed above, Bostic ignored
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 disregard Baker, 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, Baker is 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. Both Newdow and Windsor strongly militate in favor of this matter being
decided in the state courts, rather than this Court. Newdow and Windsor reinforce 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 Newdow emphasizes,
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 Windsor stresses, [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. Windsor was 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
Newdow well 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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recognized in Wilkins, domestic relations issues do not present a federal question,

notwithstanding allegations of sexual discrimination.
C
The Eleventh Amendment Bars this Suit Against These Defendants
Suit is barred against the defendants under the Eleventh Amendment because they lack
specific enforcement authority regarding South Carolinas same-sex marriage provisions. As
stated in McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010):
The Eleventh Amendment provides that [t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State. U.S. Const. amend. XI.
The present suit is thus barred unless it falls within the exception announced by
the Supreme Court in Ex parte Young, 209 U.S. 123 (1908), which permits a
federal court to issue prospective, injunctive relief against a state officer to
prevent ongoing violations of federal law, on the rationale that such a suit is not a
suit against the state for purposes of the Eleventh Amendment. Id. at 15960, 28
S.Ct. 441. The requirement that the violation of federal law be ongoing is
satisfied when a state officer's enforcement of an allegedly unconstitutional state
law is threatened, even if the threat is not yet imminent. Waste Mgmt. Holdings,
Inc. v. Gilmore, 252 F.3d 316, 330 (4th Cir.2001) (citation omitted). The Ex parte
Young exception is directed at officers of the state [who] are clothed with some
duty in regard to the enforcement of the laws of the state, and who threaten and
are about to commence proceedings ... to enforce against parties affected [by] an
unconstitutional act. Ex parte Young, 209 U.S. at 15556 (emphasis added).
Thus, we must find a special relation between the officer being sued and the
challenged statute before invoking the exception. Id. at 157, 28 S.Ct. 441;
Gilmore, 252 F.3d at 331. This requirement of proximity to and responsibility
for the challenged state action, S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324,
333 (4th Cir.2008), is not met when an official merely possesses [g]eneral
authority to enforce the laws of the state, id. at 331 (citation omitted). The
special-relation requirement protects a state's Eleventh Amendment immunity
while, at the same time, ensuring that, in the event a plaintiff sues a state official
in his individual capacity to enjoin unconstitutional action, [any] federal
injunction will be effective with respect to the underlying claim.
Id. at 333. (emphasis added).
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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 Young requires a special relation between the state officer sued and the
challenged statute to avoid the Eleventh Amendment's bar. Ex parte Young, 209
U.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 a
governor 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. Shell
Oil 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 the
judgment 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 of
allowing 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.
The Ex 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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the Ex 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);
2
1F
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 considered Bostic, supra, recently relied
on McBurney 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 Young specificity nexus between the Attorney
General and the alleged unconstitutional provisions that is essential to defeat sovereign
immunity.
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 executive
powers 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 over
the 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 court
decision. . . . 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, 323
F.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 to
enforce 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 Young doctrine because no
enforcement connection existed between Governor or Attorney General and the
statute 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 claims
are 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. See Okla. 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 whose
duties 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 passed
down 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 a
marriage. 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 marriage
license 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 they
seek. [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.
3
2F
Kitchen 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 such
authority 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. Montgomery Cnty., 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 the Bradacs 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 federalism
enunciated 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 remedy
at 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 vital
consideration, 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 a
continuance 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 means
centralization 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 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 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 proceedings
are 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. Insured
Accounts Co., Inc., 704 F.Supp. 128, 129 (S.D.Ohio 1988) (quoting same). The
rule 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 evolved
into 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., 436
F.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, 738
F.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).3
Although courts should not apply the first-to-file rule too rigidly or mechanically,
the rule's importance should not be disregarded lightly. Church of Scientology
v. 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. Bradacs will 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 is
never 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 of
equities 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 & Fraternal
Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir.2009). These standards
follow 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 hardship
test set forth in Blackwelder 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.) 4
3F
aff'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. 14225, 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 That Bostic addressed, Bostic was 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, who have a Right to be nourished, and maintained by
them, till they are able to provide for themselves. 2 John Locke, Second Treatise of
Government: Of Civil Government 78, in The Works of John Locke Esq. 180 (London,
Churchill 1714). Noah Webster defined marriage as [t]he act of uniting a man and woman for
life; wedlock; the legal union of a man and woman for life, which is designed for securing the
maintenance and education of children. 2 Noah Webster, An American Dictionary of the
English Language (1st ed. 1828). As the Supreme Court noted long ago, marriage is the
foundation of the family and of society, without which there would be neither civilization nor
progress. Maynard v. Hill, 125 U.S. 190, 211 (1888). It is an institution more basic in our
civilization than any other. Williams v. North Carolina, 317 U.S. 287, 303 (1942). And because
it is structured for the procreation and protection of offspring, it is fundamental to the very
existence and survival of the [human] race. Zablocki v. Redhail, 434 U.S. 374, 384 (1978)
(quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)).
2
In South Carolina
The definition of marriage as an opposite sex legal relationship has been equally settled
in South Carolina since Colonial times. Under a 1712 statute, only opposite sex marriages were
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within the contemplation of the law in that it prohibited bigamy for persons marrying when they
had another husband or wife living (Statutes at Large, 1712, p. 508). (Attachment B). As set
forth in State v. Barefoot, 2 Rich. 209, 31 S.C.L. 209, 1845 WL 2580 (S.C. Ct. of Appeals 1845)
[b]y the common law, single men and women, being of the lawful age, that is, men of 14 and
women of 12 years of age, are left free to enter into the contract of marriage at their own
discretion. Barefoot cites Blackstone, whose pre-revolutionary Commentaries on the Laws of
England (1765-1769) states that [t]he second private relation of persons is that of marriage,
which includes the reciprocal duties of husband and wife . . . . (Bk. 1, Ch. 15), The Laws of
Nature and Natures God, http://www.lonang.com/exlibris/blackstone/bla-115.htm 5 The 1871
4F
Revised Statutes forbade men from marrying various female relatives and in-laws and forbade
women from marrying various male relatives and in-laws. 1871 R.S. 440 (Attachment C).
Lucken v. Wichman, 5 S.C. 411, 413 (1874) stated that [t]he existence of a marriage is a
question of fact [w]hether founded on an express contract, or inferred from circumstances, which
necessarily imply that the relation of husband and wife existed between the parties . . . .
(emphasis added). Lucken was cited in Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647,
651 (1960) which stated that [i]t is essential to a common law marriage that there shall be a
mutual agreement between the parties to assume toward each other the relation of husband and
wife. Cohabitation without such an agreement does not constitute marriage.
This book and chapter of Blackstone are cited in Vaigneur v. Kirk, 2 Des. 640, 2 S.C. Eq. 640,
note a1,1808 WL 290 (Court of Chancery of S.C. 1808) for the purpose of resorting to the law
of England to ascertain what constitutes a legal marriage . . . in this country. It is plain from a
reading of Blackstone, which speaks of husband and wife, and his discussion of the common law
as applied to husband and wife, that by using terms like husband and wife or, its Norman French
equivalent, baron and feme, the understanding of English common law was that marriage was a
contract entered into by a man and a woman. Rosengarten v. Downes, 71 Conn. App. 372,
384, 802 A.2d 170, 177 (2002).
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Until very recently, the definition of marriage as being limited to an opposite sex couple
was entirely uncontroversial. The redefinition of marriage never became a serious point of
discussion until the Hawaii Supreme Court suggested the possibility in 1993. See Baehr v.
Lewin, 852 P.2d 44, 68 (Haw.), reconsideration granted in part, 875 P.2d 225 (Haw. 1993).
Samesex marriage has been a point of public discussion for less than a generationyet
plaintiffs insist that this new view of marriage is now embedded in our countrys founding
document.
Once Hawaii raised the issue, South Carolina joined the national discussion on the
meaning and definition of marriage. South Carolina adopted a statute and a Constitutional
provision that expressly addressed what had been the law in this State since it joined with twelve
other states to form the United States. See, footnote 1, supra.
These provisions did not change South Carolina law, but instead, ratified existing law.
They did not restrict same-sex couples other than by affirming that opposite sex marriage is the
only lawful domestic union.
3
Comparison to Virginia Law
This Court asked that the Defendants note any differences with Virginia law regarding
same-sex marriage because of the Bostic decision. Attachment A to this Memorandum sets out
the laws of the two states.
Virginias laws preserve existing law by banning same-sex marriage as does South
Carolina law, but our States Constitution contains some significant differences in its express
protection for specified rights, benefits, contracts and legal instruments. S.C. Const. art. XVII,
15 (Nothing in this section shall impair any right or benefit extended by the State or its
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political subdivisions other than a right or benefit arising from a domestic union that is not valid
or recognized in this State. This section shall not prohibit or limit parties, other than the State or
its political subdivisions, from entering into contracts or other legal instruments.). Virginias
Constitution contains no protection for such matters and Va. Code 20-45.2 states that any
contract rights created by a same-sex marriage are void and unenforceable. This memorandum
does not attempt to construe the scope of South Carolina laws protections or Virginias
limitation. Instead, the point is that South Carolina law simply seeks to preserve existing marital
law and that it does not demonstrate animus or an attempt to remove any rights or benefits that
any individuals previously had under our States law.
C
Rational Basis Review Should Apply Here to Plaintiffs
Due Process and Equal Protection Claims
Although Bostic applied strict scrutiny to its analysis of the same-sex marriage claims in
that case, the dissent in the 2-1 decision by Judge Niemeyer applied rational basis review.
Because the Defendants believe that Judge Niemeyers opinion was the correct one, they offer
his analysis to preserve in argument against the Bostic Panel decision and should further review
be sought later.
1
No Fundamental Right to Same-Sex Marriage Exists
Bostic applied strict scrutiny because it found marriage to be a fundamental right that
encompasses same-sex marriage.
Judge Niemeyer reached a different, legally correct
conclusion.
As Judge Niemeyer stated:
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To be clear, this case is not about whether courts favor or disfavor same-sex
marriage, or whether States recognizing or declining to recognize same-sex
marriage have made good policy decisions. It is much narrower. It is about
whether a State's decision not to recognize same-sex marriage violates the
Fourteenth Amendment of the U.S. Constitution. Thus, the judicial response must
be limited to an analysis applying established constitutional principles.
Bostic, 760 F.3d at 385.

He found fundamental flaws in the conclusion of the other two members of the Panel that
same-sex marriage is a fundamental right,
This analysis is fundamentally flawed because it fails to take into account that the
marriage that has long been recognized by the Supreme Court as a fundamental
right is distinct from the newly proposed relationship of a same-sex marriage.
And this failure is even more pronounced by the majority's acknowledgment that
same-sex marriage is a new notion that has not been recognized for most of our
country's history. Ante at 376. Moreover, the majority fails to explain how this
new notion became incorporated into the traditional definition of marriage except
by linguistic manipulation. Thus, the majority never asks the question necessary
to finding a fundamental rightwhether same-sex marriage is a right that is
deeply rooted in this Nation's history and tradition and implicit in the concept
of ordered liberty, such that neither liberty nor justice would exist if [it was]
sacrificed. Glucksberg, 521 U.S. at 721, (quoting Moore v. East Cleveland, 431
U.S. 494, 503 (1977) (plurality opinion); Palko v. Connecticut, 302 U.S. 319
(1937)) (internal quotation marks omitted). . . .
760 F.3d at 386.

The substantive component of the Due Process Clause only protects
fundamental liberty interests. And the Supreme Court has held that liberty
interests are only fundamental if they are, objectively, deeply rooted in this
Nation's history and tradition, and implicit in the concept of ordered liberty,
such that neither liberty nor justice would exist if they were sacrificed.
Glucksberg, 521 U.S. at 72021 (citation omitted) (quoting Moore, 431 U.S. at
503 (plurality opinion); Palko, 302 U.S. at 32526,). When determining whether
such a fundamental right exists, a court must always make a careful description
of the asserted fundamental liberty interest. Id. at 721, 117 S.Ct. 2258 (emphasis
added) (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1
(1993)). This careful description involves characterizing the right asserted in its
narrowest terms. .. .
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Under this formulation, because the Virginia laws at issue prohibit marriage
between persons of the same sex, Va.Code Ann. 2045.2, the question before
us is whether the liberty specially protected by the Due Process Clause includes
a right to same-sex marriage. Glucksberg, 521 U.S. at 723 . . . .
When a fundamental right is so identified, then any statute restricting the right is
subject to strict scrutiny and must be narrowly tailored to serve a compelling
state interest. Flores, 507 U.S. at 302. Such scrutiny is extremely difficult for a
law to withstand, and, as such, the Supreme Court has noted that courts must be
extremely cautious in recognizing fundamental rights because doing so ordinarily
removes freedom of choice from the hands of the people:
The plaintiffs in this case, as well as the majority, recognize that narrowly
defining the asserted liberty interest would require them to demonstrate a new
fundamental right to same-sex marriage, which they cannot do. . . .
Instead, the plaintiffs and the majority argue that the fundamental right to
marriage that has previously been recognized by the Supreme Court is a broad
right that should apply to the plaintiffs without the need to recognize a new
fundamental right to same-sex marriage. They argue that this approach is
supported by the fact that the Supreme Court did not narrowly define the right to
marriage in its decisions in Loving, 388 U.S. at 12; Turner, 482 U.S. at 9496; or
Zablocki, 434 U.S. at 38386.
It is true that, in those cases, the Court did not recognize new, separate
fundamental rights to fit the factual circumstances in each case. For example, in
Loving, the Court did not examine whether interracial marriage was, objectively,
deeply rooted in our Nation's history and tradition. But it was not required to do
so. Each of those cases involved a couple asserting a right to enter into a
traditional marriage of the type that has always been recognized since the
beginning of the Nation-a union between one man and one woman. . . .
To now define the previously recognized fundamental right to marriage as a
concept that includes the new notion of same-sex marriage amounts to a
dictionary jurisprudence, which defines terms as convenient to attain an end.
[T]here are . . . significant distinctions between [same-sex and opposite-sex] the
relationships that can justify differential treatment by lawmakers.
Only the union of a man and a woman has the capacity to produce children and
thus to carry on the species. And more importantly, only such a union creates a
biological family unit that also gives rise to a traditionally stable political unit.
Every person's identity includes the person's particular biological relationships,
which create unique and meaningful bonds of kinship that are extraordinarily
strong and enduring and that have been afforded a privileged place in political
order throughout human history. Societies have accordingly enacted laws
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promoting the family unit-such as those relating to sexual engagement, marriage

rites, divorce, inheritance, name and title, and economic matters. And many
societies have found familial bonds so critical that they have elevated marriage to
be a sacred institution trapped with religious rituals. In these respects, the
traditional man-woman relationship is unique.
Thus, when the Supreme Court has recognized, through the years, that the right to
marry is a fundamental right, it has emphasized the procreative and social
ordering aspects of traditional marriage. For example, it has said: [Marriage] is
an institution, in the maintenance of which in its purity the public is deeply
interested, for it is the foundation of the family and of society, without which
there would be neither civilization nor progress, Maynard v. Hill, 125 U.S. 190,
211 (1888) (emphasis added); Marriage is one of the basic civil rights of man.
Marriage and procreation are fundamental to the very existence and survival of
the race, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942); It
is not surprising that the decision to marry has been placed on the same level of
importance as decisions relating to procreation, childbirth, childrearing, and
family relationships.... [Marriage] is the foundation of the family in our society,
Zablocki, 434 U.S. at 386.
Because there exist deep, fundamental differences between traditional and samesex marriage, the plaintiffs and the majority err by conflating the two
relationships under the loosely drawn rubric of the right to marriage. Rather, to
obtain constitutional protection, they would have to show that the right to samesex marriage is itself deeply rooted in our Nation's history. They have not
attempted to do so and could not succeed if they were so to attempt.
In an effort to bridge the obvious differences between the traditional relationship
and the new same-sex relationship, the plaintiffs argue that the fundamental right
to marriage has always been based on, and defined by, the constitutional liberty
to select the partner of one's choice. (Emphasis added). They rely heavily on
Loving to assert this claim. In Loving, the Court held that a state regulation
restricting interracial marriage infringed on the fundamental right to marriage.
Loving, 388 U.S. at 12. But nowhere in Loving did the Court suggest that the
fundamental right to marry includes the unrestricted right to marry whomever one
chooses, as the plaintiffs claim. Indeed, Loving explicitly relied on Skinner and
Murphy, and both of those cases discussed marriage in traditional, procreative
terms. Id.
This reading of Loving is fortified by the Court's summary dismissal of Baker v.
Nelson, [supra], just five years after Loving was decided. . . . . The Court's action
in context indicates that the Court did not view Loving or the cases that preceded
it as providing a fundamental right to an unrestricted choice of marriage partner. .
. .The state regulation struck down in Loving, like those in Zablocki and Turner,
had no relationship to the foundational purposes of marriage, while the gender of
the individuals in a marriage clearly does. Thus, the majority errs, as did the
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district court, by interpreting the Supreme Court's marriage cases as establishing a

right that includes same-sex marriage.
Bostic v. Schaefer, 760 F.3d at 389-93 (Niemeyer dissenting).
The misapplication of Loving to find same-sex marriage is a significant error by the two
person majority in Bostic. As recognized by a New York Court before that states legislature
legalized same-sex marriage, the historical background of Loving is different from the history
underlying . . . same-sex marriage. Hernandez v. Robles, 7 N.Y.3d 338, 361, 855 N.E.2d 1, 8
(2006). Race was not a historical element of marriage. It was superimposed on marital law to
maintain White Supremacy. Id. The history of the traditional definition of marriage . . . is of
a different kind. Id. The idea that same-sex marriage is even possible is a relatively new one.
Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any
society in which marriage existed, that there could be marriages only between participants of
different sex. Id. Therefore, whereas Loving lifted a restriction that was never an element of
marriage, the 2-1 Bostic panel misapplied the decision to alter the element historically inherent in
marriage a union of a man and a woman. .
Judge Niemeyer found other barriers to the Virginia plaintiffs assertion of a fundamental
right:
The plaintiffs also largely ignore the problem with their position that if the
fundamental right to marriage is based on the constitutional liberty to select the
partner of one's choice, as they contend, then that liberty would also extend to
individuals seeking state recognition of other types of relationships that States
currently restrict, such as polygamous or incestuous relationships. . . Under the
Glucksberg analysis that we are thus bound to conduct, there is no new
fundamental right to same-sex marriage. Virginia's laws restricting marriage to
man-woman relationships must therefore be upheld if there is any rational basis
for the laws.
Bostic, 760 F.3d at 392, dissenting opinion (emphasis added). The same conclusion applies to
South Carolinas law.
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2
Limiting marriage to the union of a man and a woman does not implicate a suspect class
requiring heightened scrutiny
Bostic did not address whether a suspect class was implicated by Virginias laws because
it found a fundamental right to same-sex marriage. Judge Niemeyer did address this issue and
found no suspect class implicated in that case and that rational basis review applied.
Any laws based on such suspect classifications are subject to strict scrutiny. See
id. In a similar vein, classifications based on gender are quasisuspect and call
for intermediate scrutiny because they frequently bear[ ] no relation to ability
to perform or contribute to society and thus generally provide[ ] no sensible
ground for differential treatment. Id. at 44041, 105 S.Ct. 3249 (quoting
Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973)
(plurality opinion)); see also Craig v. Boren, 429 U.S. 190, 197 (1976). Laws
subject to intermediate scrutiny must be substantially related to an important
government objective. See United States v. Virginia, 518 U.S. 515, 533 (1996).
But when a regulation adversely affects members of a class that is not suspect or
quasi-suspect, the regulation is presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a legitimate state
interest. City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249 (emphasis added).
The plaintiffs contend that Virginia's marriage laws should be subjected to some
level of heightened scrutiny because they discriminate on the basis of sexual
orientation. Yet they concede that neither the Supreme Court nor the Fourth
Circuit has ever applied heightened scrutiny to a classification based on sexual
orientation. They urge this court to do so for the first time. Governing precedent,
however, counsels otherwise.
In Romer v. Evans, the Supreme Court did not employ any heightened level of
scrutiny in evaluating a Colorado constitutional amendment that prohibited state
and local governments from enacting legislation that would allow persons to
claim any minority status, quota preferences, protected status, or discrimination
based on sexual orientation. Romer, 517 U.S. at 624. In holding the amendment
unconstitutional under the Equal Protection Clause, the Court applied rationalbasis review. See id. at 63133.
And the Supreme Court made no change as to the appropriate level of scrutiny in
its more recent decision in Windsor . . . .
Finally, we have concluded that rational-basis review applies to classifications
based on sexual orientation. See Veney v. Wyche, 293 F.3d 726, 73132 (4th
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Cir.2002). . . . .The vast majority of other courts of appeals have reached the same
conclusion.
Bostic, 760 F.3d at 396-97 (Niemeyer dissenting).
3
The Same-Sex Marriage Restrictions Do Not Discriminate on the Basis of Sex
Plaintiffs claim sex discrimination, but the Supreme Court has never held that
classifications involving sexual orientation amount to sex discrimination. The traditional
definition of marriage treats both sexes equally, as men and women are equally free to marry
members of the opposite sex.
No authority binds this Court to find sexual discrimination in
this case and apply a standard of review higher than rational basis. The Bostic opinions did not
address this issue substantively, and the Ninth Circuits decision is not controlling here. Latta
v. Otter, 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7, 2014)(same-sex marriage prohibitions
also constitute sex discrimination).
The fundamental flaw with plaintiffs sex discrimination claim is that the marriage
laws are facially neutral; they do not single out men or women as a class for disparate
treatment, but rather prohibit men and women equally from marrying a person of the same
sex. Baker v. State, 744 A.2d 864, 880 n.13 (Vt. 1999). [T]here is no discrete class subject
to differential treatment solely on the basis of sex; each sex is equally prohibited from
precisely the same conduct. Id.
The Supreme Court has repeatedly upheld classifications that track biological
differences between the sexes. Distinctions based on pregnancy, for instance, are rationally
related to womens different reproductive biology. Geduldig v. Aiello, 417 U.S. 484, 495-96
(1974) (equal protection) (later superseded by 42 U.S.C.A. 2000e(k) (West 2013)
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(Pregnancy Discrimination Amendment)). And immigration law may make it easier for out-ofwedlock children to claim citizenship from citizen mothers than from citizen fathers, for
reasons beyond gender stereotypes. Nguyen v. INS, 533 U.S. 53, 62-65 (2001). As Justice
Kennedy wrote for the Court in Nguyen:
To fail to acknowledge even our most basic biological differencessuch as the
fact that a mother must be present at birth but the father need not berisks
making the guarantee of equal protection superficial, and so disserving it. . .
.The difference between men and women in relation to the birth process is a
real one, and the principle of equal protection does not forbid Congress to
address the problem at hand in a manner specific to each gender.
533 U.S. at 73 (2001).
Under South Carolina law, both sexes are equally free to marry.
They do not
discriminate on the basis of sex, and therefore, rational basis review applies.
4
SOUTH CAROLINAS LONGSTANDING DEFINITION OF MARRIAGE
SATISFIES RATIONAL BASIS REVIEW UNDER THE EQUAL PROTECTION AND
DUE PROCESS CLAUSES
Under Judge Niemeyers analysis that no fundamental right is involved, rational basis
review applies to Plaintiffs due process claims. See Colon Health Centers of Am., LLC v. Hazel,
733 F.3d 535, 548 (4th Cir. 2013)(citing Glucksberg).
For that same reason and because
Plaintiffs are not part of a suspect class, rational basis review applies to their equal protection
claims. Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2080 (2012).
a
Rational Basis Review Is Extremely Deferential
Rational basis review is a paradigm of judicial restraint. FCC v. Beach Commcns, Inc.,
508 U.S. 307, 313-14 (1993). [J]udicial intervention is generally unwarranted no matter how
50

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unwisely we may think a political branch has acted. Vance v. Bradley, 440 U.S. 93, 97
(1979). The laws must be upheld if there is any reasonably conceivable set of facts that could
provide a rational basis for the classification between opposite-sex couples and same-sex
couples. Heller v. Doe, 509 U.S. 312, 319 (1993) (quoting FCC v. Beach Commcns, Inc., 508
U.S. 307, 313 (1993)).
b
Rational Bases Exist for South Carolinas Marriage Laws
In her opinion concurring in Lawrence v. Texas, 539 U.S. 558, 585 (2003),
regarding the Texas statute prohibiting sodomy between homosexuals, Justice
OConnor strongly indicated that marriage laws would withstand a challenge from
same-sex couples. She stated as follows:
That this law as applied to private, consensual conduct is unconstitutional
under the Equal Protection Clause does not mean that other laws
distinguishing between heterosexuals and homosexuals would similarly fail
under rational basis review. Texas cannot assert any legitimate state interest
here such as . . . preserving the traditional institution of marriage. Unlike the
moral disapproval of same-sex relationsthe asserted state interest in this
caseother reasons exist to promote the institution of marriage beyond mere
moral disapproval of an excluded group. (emphasis added).
539 U.S. at 585. Numerous legitimate state interests support South Carolinas
limitation of marriage to opposite-sex couples.
In Bostic, Virginia offered the following grounds as support for its same-sex marriage
ban:
(1) Virginia's federalism-based interest in maintaining control over the definition
of marriage within its borders, (2) the history and tradition of opposite-sex
marriage, (3) protecting the institution of marriage, (4) encouraging responsible
procreation, and (5) promoting the optimal childrearing environment
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Bostic, 760 F.3d at 378. Although rejected by the Court of Appeals under strict scrutiny, these
grounds support South Carolinas law under rational basis review. Respectfully disagreeing with
the two person majority opinion in Bostic, we also submit that the grounds would pass a strict
scrutiny test if applied because they are compelling state interests and are narrowly drawn. 760
F.3d at 377.
Judge Niemeyer analyzed these grounds for Virginias law under a rational basis standard
and his conclusions apply here. He stated:
Virginia has undoubtedly articulated sufficient rational bases for its marriage laws, and I
would find that those bases constitutionally justify the laws. Those laws are grounded on
the biological connection of men and women; the potential for their having children; the
family order needed in raising children; and, on a larger scale, the political order resulting
from stable family units. Moreover, I would add that the traditional marriage relationship
encourages a family structure that is intergenerational, giving children not only a
structure in which to be raised but also an identity and a strong relational context. The
marriage of a man and a woman thus rationally promotes a correlation between biological
order and political order. Because Virginia's marriage laws are rationally related to its
legitimate purposes, they withstand rational-basis scrutiny under the Due Process Clause.
Bostic, 760 F.3d at 395 (4th Cir. 2014). South Carolinas laws serve similar purposes.
Maynard, Meyer and Skinner, supra, imply that a purpose of marriage is to encourage
potentially procreative couples to raise children produced by their sexual union together.
Marriage was not born of animus against homosexuals but is predicated instead on the positive,
important and concrete societal interests in the procreative nature of opposite-sex relationships.
Only opposite-sex couples can naturally procreate, and the responsible begetting and rearing of
new generations is of fundamental importance to civil society. It is no exaggeration to say that
[m]arriage and procreation are fundamental to .. . existence and survival . . . . Skinner, 316
U.S. at 541. The State may rationally conclude that, all things being equal, it is better for the
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natural parents to also be the legal parents, and establish civil marriage to encourage that result.
See Hernandez, 855 N.E.2d at 7.
As stated by Judge Niemeyer:
Here, the Commonwealth's goal of ensuring that unplanned children are raised in stable
homes is furthered only by offering the benefits of marriage to opposite-sex couples. As
Virginia correctly asserts, the relevant inquiry here is not whether excluding same-sex
couples from marriage furthers [Virginia's] interest in steering man-woman couples into
marriage. Rather, the relevant inquiry is whether also recognizing same-sex marriages
would further Virginia's interests. With regard to its interest in ensuring stable families in
the event of unplanned pregnancies, it would not.
Bostic, 760 F.3d at 394.
Preservation of the long history and tradition of marriage as an opposite-sex legal
institution is also a rational basis for sustaining South Carolina law. As discussed above,
marriage has always been understood as being limited to opposite sex couples until the very
recent legislative and judicial consideration of same-sex marriages. This basis for marriage
which has been rooted in law, custom and societal relationships is a rational basis for limiting
marriage to opposite-sex couples.
Any change in this definition should come from the
legislature and the voters rather than the judiciary.

IV
PLAINTIFFS FAIL TO MEET THE OTHER REQUIREMENTS FOR A
PRELIMINARY INJUNCTION
Plaintiffs are not entitled to a preliminary injunction for reasons discussed in the previous
section, but they also fail to meet tests for irreparable harm, balance of equities and the public
interest. U.S. v. Charleston, supra. While . . . violations of constitutional rights constitute
irreparable harm for injunctive relief purposes (United States v. Charleston Cnty., 318 F. Supp.
2d 302, 326 (D.S.C. 2002), in the context of the current litigation in South Carolina, Plaintiffs are
not harmed because the Bradacs litigation is likely to be decided shortly, and if favorable in
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outcome to their position, would affect Plaintiffs and the Supreme Courts direction to Probate
Judges. The balance of equities do not tip in their favor and the public interest is not served by
Plaintiffs trying to jump over the Bradacs case to obtain a decision possibly only days before
that case is decided. Had they wanted a voice in that case, they could have moved to intervene,
but they failed to do so. They should not be granted a preliminary injunction when should be
protected by any outcome in Bradacs cases favorable to their position.
V
ALTERNATIVE MOTION / REQUEST FOR STAY
Should, arguendo, this Court grant a preliminary injunction, the Defendants respectfully
request that this Court grant a stay pending appeal to the Court of Appeals for the Fourth Circuit
pursuant to Rule 62, FRCP. Briefly stated, a party seeking a stay must show (1) that he will
likely prevail on the merits of the appeal, (2) that he will suffer irreparable injury if the stay is
denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public
interest will be served by granting the stay. Long v. Robinson, 432 F.2d 977, 979 (4th Cir.
1970). Brenner v. Scott, 999 F. Supp. 2d 1278, 1292 (N.D. Fla. 2014) applied similar standards
to grant a stay in that same-sex marriage case:
at the stay-pending-appeal stage, an additional public interest comes into play.
There is a substantial public interest in implementing this decision just oncein
not having, as some states have had, a decision that is on-again, off-again. This is
so for marriages already entered elsewhere, and it is more clearly so for new
marriages. There is a substantial public interest in stable marriage laws. Indeed,
there is a substantial public interest in allowing those who would enter same-sex
marriages the same opportunity for due deliberation that opposite-sex couples
routinely are afforded. Encouraging a rush to the marriage officiant, in an effort to
get in before an appellate court enters a stay, serves the interests of nobody. A
stay thus should be entered for long enough to provide reasonable assurance that
the opportunity for same-sex marriages in Florida, once opened, will not again
close. The stay will remain in effect until stays have been lifted in Bostic, Bishop,
and Kitchen, and for an additional 90 days to allow the defendants to seek a
longer stay from this court or a stay from the Eleventh Circuit or Supreme Court.
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See also, same-sex marriage cases Henry v. Himes, No. 1:14-CV-129, 2014 WL 1512541, at *1
(S.D. Ohio Apr. 16, 2014) 6; Bourke v. Beshear, 996 F. Supp. 2d 542, 558 (W.D. Ky. 2014 ) 7
5F
6F
This analysis directly applies here, particularly when the Bradacs case is pending and the
State Supreme Courts order directs probate judges not to issue marriage licenses until Bradacs
is decided. Although the Bostic case is decided and the United States Supreme Court denied
certiorari, the Panel did not consider a number of dispositive defenses raised in the instant case.
Moreover, it is a Panel decision and the Appellate Court rules permit appellants to request initial
en banc review that, if granted, could lead to a different conclusion at the Court of Appeals.
Rule 35, FRAP. The Court of Appeals should be given the opportunity to review this matter en
banc, consideration that was apparently not sought in Bostic.
The Fourth Circuit is likely to want to conclude the appellate process quickly regardless
of outcome. In the meanwhile, the window should not be opened on same-sex marriages at the
substantial risk of closure again should the Defendants appeal be successful. Therefore, the
State respectfully requests that any order of this Court granting a preliminary injunction be
enjoined until appellate review is completed at the Court of Appeals.
Henry stated: if Defendant Himes's appeal is ultimately successful, the absence of a

stay as to this Court's ruling of facial unconstitutionality is likely to lead to confusion,
potential inequity, and high costs. These considerations lead the Court to conclude that
the public interest would best be served by the granting of a stay. Premature celebration3
and confusion do not serve anyone's best interests. The federal appeals courts need to
rule, as does the United States Supreme Court.
7
As stated in Bourke: One judge may decide a case, but ultimately others have a final
say. It is the entire process, however, which gives our judicial system and our judges such
high credibility and acceptance. This is the way of our Constitution. It is that belief which
ultimately informs the Court's decision to grant a stay. It is best that these momentous
changes occur upon full review, rather than risk premature implementation or confusing
changes. That does not serve anyone well.
55

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CONCLUSION
This case is not properly presented to this Court. It is barred by Rooker Feldman and
Federalism, and as to these Defendants, by the Eleventh Amendment and by the lack of standing
of the Plaintiffs to sue them. The long established and well recognized principles of federalism
strongly militate in favor of allowing the courts of South Carolina to decide these important
questions. Other courts agree. See Conde-Vidal v. Garcia-Padilla, supra. (following Baker v.
Nelson, supra.). South Carolinas constitutional provision has never been interpreted and the
state courts traditionally have been the proper forum to handle domestic relations such as the
status of marriage. Bostic is not controlling precedent because, according to prior decisions of
the Fourth Circuit, summary dismissals of the Supreme Court such as the dismissal of the samesex marriage challenge in Baker v. Nelson are controlling. The other issues need not be reached,
but to preserve the issues, we argue against precedent, and assert that Judge Niemeyers dissent
in Bostic presents the sounder constitutional analysis. For the foregoing reasons, the Defendants
respectfully request that the Plaintiffs Motion for a Preliminary Injunction be denied.
ALAN WILSON
Attorney General
Federal ID No.10457
ROBERT D. COOK
Solicitor General
Federal ID No. 285
Email: BCOOK@SCAG.GOV
J. EMORY SMITH, Jr.
Federal ID No. 3908
Email: ESMITH@SCAG.GOV
[Signature block continues next page]
56

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IAN P. WESCHLER
Assistant Attorney General
Federal ID No. 11744
BRENDAN J. MCDONALD
Office of the Attorney General
Phone: (803) 734-3680
Fax: (803) 734-3677
Counsel for Defendants
Governor and Attorney General
November 3, 2014
57
2:14-cv-04010-RMG Date Filed 11/03/14 Entry Number 29-1

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Page 1 of 3
ATTACHMENT A
Condon v. Haley
Memorandum of Defendants in Opposition to Motion for Preliminary Injunction
Comparison of pertinent South Carolina and

Virginia statutes and Constitutions

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Page 2 of 3
South Carolina Statutes

20-1-10: Persons who may contract matrimony.
(A) All persons, except mentally incompetent persons and persons whose marriage is prohibited
by this section, may lawfully contract matrimony.
(B) No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, sister,
grandfathers wife, sons wife, grandsons wife, wifes mother, wifes grandmother, wifes
daughter, wifes granddaughter, brothers daughter, sisters daughter, fathers sister, mothers
sister, or another man.
(C) No woman shall marry her father, grandfather, son, grandson, stepfather, brother,
grandmothers husband, daughters husband, granddaughters husband, husbands father,
husbands grandfather, husbands son, husbands grandson, brothers son, sisters son, fathers
brother, mothers brother, or another woman.
20-1-15: A marriage between persons of the same sex is void ab initio and against the public
policy of this State.
South Carolina Constitution

S.C. Const. Art. XVII, 15: A marriage between one man and one woman is the only lawful
domestic union that shall be valid or recognized in this State. This State and its political
subdivisions shall not create a legal status, right, or claim respecting any other domestic union,
however denominated. This State and its political subdivisions shall not recognize or give effect
to a legal status, right, or claim created by another jurisdiction respecting any other domestic
union, however denominated. Nothing in this section shall impair any right or benefit extended
by the State or its political subdivisions other than a right or benefit arising from a domestic
union that is not valid or recognized in this State. This section shall not prohibit or limit parties,
other than the State or its political subdivisions, from entering into contracts or other legal
instruments.
Virginia Statute
Va. Code 20-45.2: A marriage between persons of the same sex is prohibited. Any marriage
entered into by persons of the same sex in another state or jurisdiction shall be void in all
respects in Virginia and any contractual rights created by such marriage shall be void and
unenforceable.

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Page 3 of 3
Virginia Constitution
Marshall/Newman Amendment to the Virginia Constitution, Va. Const. art. 1, 15-A: That only
a union between one man and one woman may be a marriage valid in or recognized by this
Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions
shall not create or recognize a legal status for relationships of unmarried individuals that intends
to approximate the design, qualities, significance, or effects of marriage. Nor shall this
Commonwealth or its political subdivisions create or recognize another union, partnership, or
other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of
marriage.

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Page 1 of 2
ATTACHMENT B
Condon v. Haley
Memorandum of Governor and Attorney General in Opposition to Preliminary Injunction
Statutes at Large, 1712, p. 508

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508
Page 2 of 2
STATUTES AT LARGE
A. 1). 1712
English Statutes Made of Force.
1 J. 1. e. 11.
An Act to restrain all Persons from Marriage until their former Wives
and former Husbands be dead.
FORASMUCH as divers evil-disposed persons being married,

Felonyto marry out of one
second
as-
knowtJ(
an(j
county into
there
another, or into
become
to
be
places
married,
where
having
they
another
are
husband
run
not
or
band or wife,
wife living, to the great dishonor of God, and utter undoing of divers
honest mens children, and others; [2j Be it therefore enacted, That if
any person or persons within his Majesty's dominions of England and
tlte former
being living.
3 Ins'r. 93.
<'ro. Eliz. 91.
Er0- Can 461. "Wales, being married, or which hereafter shall marry, do at any time
Kelyng 79 80 'A^ter the end of the session of this present parliament, marry any pertHalesP.C.6'J2. son or persons, the former husband or wife being alive ; that then every
such offence shall be felony, and the person and persons so offending
shali suffer death as in cases of felony; [3] and the party and parties
so offending shall receive such and the like proceeding, trial and ex
ecution in such county where such person or persons shall be appre
hended, as if the offence had been committed in such county
where
such person or persons shall he taken or apprehended.
i,
T1 e husband or
^>ro'lAC'e^ always, That this Act, nor any therein contained, shall
wife, being ab-extencl to ariy person or persons whose husband or wife shall he con
sent 7 years
tinually remaining beyond the seas by the space of 7 years together,
from the other. or w]]0gg husband or wife shall absent him or herself the one from the
other by the space of 7 years together, in any parts within his Majes
ty's dominions,
the
one of them not knowing the other to be living
within that time.
III. Provided also, That this Act, nor any thing herein contained, shaii
To what per- extend to any person or persons that are or shall he at the time of such
s"jjt'nStStalute marriage divorced by any sentence had or hereafter to be had in the ecrie-
tend.
X"
siastical court ; [2] or to any person or persons where the former marriage
hath been or hereafter shall he by sentence in the ecclesiastical court

declared to be void and of no effect; nor to any person or persons for or
by reason of any former marriage had or made, or hereafter to be had or
made, within age of consent,
ofbkmd"[uss"of
1
it
this
Provided also, That no attainder for this offence made felony by

Act, shall make or work any corruption of blood,
loss of dower,
dower or
inheritance.
disinherison of heir or heirs.
1 J. I.e. 12.
An Acte against Conjuration ,
3 Eliz. c. 16,
repealed.
Witchcraft, and dealinge with Evill (nul

Spirits.
the same Feaste, utterlie repealed.
.
Invoking or
11. And for the better restrayninge the said offenses and more se
punishinere the same,
spirits,
' '
evil
&
an
fu
of
tm
or
)i!
let
of i
the
Off.!
he it further
enacted
,
by
i
of r
or (|
BE it enacted, by the King our Sovraigne Lorde, the Lordes Spirituall

and Temporall and the Comons in this present Parliament assembled, ami
by the autboritie of the same. That the statute made in the fifth ycire
of the raigne of our late Sovraigne Lady, of most famnn* and happie
memorie, Queene Elizabeth, intituled an Acte agai:
conjuration?,
inchantments and witchcrafts, be from the Feaste of St. IN
ell the Archangell nexte cominge, for and concerninge all offences to
omitted atler
consultinu wnlj f
P'
sh
hi.
is a
the
of s
Wicked
fil-
{<
lo
the
autboritie
-r-i
i hat if any person or persons, alter the saide reaste oi
Archangell next cominge, shall use, practise or exercise
afores
in--
St. Michae!
invocation or
aitn.
Tliu
of it
case
FTh
exic-iv
olsewi
An A
the.
wii

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ATTACHMENT C
Condon v. Haley
Memorandum of Governor and Attorney General
in Opposition to Preliminary Injunction
1871 R.S. 440
Page 1 of 2

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Page 2 of 2
OF THE DOMESTIC RELATIONS.
Murriage.
Chaptkr XCIX, Of
0* Oj Certain Rights and Liabilities of Husband and
Wife.
CI. Of Guardians and Words.
CI I.
CHI.
Oj the Change of Navies.
Oj Masters, Apprentices and Laborers.
CHAPTER XCIX.
Of
Marriage.
Sec.
J, Who may contract matrimony.
2. Marriage contracted and consumma
ted, indissoluble.
Sec.
3. Void marriages; proviso.
Secticust 1. That all persons, except idiots and lunatics, not prohibited
by this Section, may lawfully contract matrimony. Xo man shall marry
his mother, grand-mother, daughter, grand-daughter, step-mother, sister,
grand-father's wife, son's wife, grand-son's wife, wife's mother, wife's grand
mother, wife's daughter, wife's grand-daughter, brother's daughter, sister's
daughter, father's sister, or mother's sister.
No woman shall marry her
father, grand-father, son, grand-son, step-father, brother, grand-mother's

husband, daughter's husband, grand-daughter's husband, husband's father,
husband's grand-father, husband's sou, husband's grand-son, brother's son,

sister's son, father's brother, or mother's brother.
Sec. 2. All marriages contracted between lawful persons, and solem
nized in the face of the church, and consummate with bodily knowledge,
or fruit of children or child shall be deemed, judged and taken to J
lawful, good, just and indissoluble, notwithstanding any pre-coutrac
pre-contracts of matrimony not consummate with bodily

which either of the parties so married or both shall have ,1U'1
other person or persons before the time of contracting ^nch ma
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ATTACHMENT 3
Bleckley v. Wilson
14-2241
Amended Motion for Stay in the District Court

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Page 1 of 3

CHARLESTON DIVISION
Colleen Therese Condon and Anne
Nichols Bleckley,
)
) Civil Action No. 2:14-cv-04010-RMG
)
Plaintiffs,
)
)
v.
)
)
AMENDED MOTION
Nimrata (Nikki) Randhawa Haley, in her )
OF ATTORNEY GENERAL
official capacity as Governor of South
)
AND GOVERNOR FOR STAY
Carolina; Alan M. Wilson, in his official )
Capacity as Attorney General; and Irvin )
G. Condon in his official capacity as
)
Probate Judge of Charleston County,
)
)
Defendants.
)
________________________________________________ )
The Governor and Attorney General hereby move to amend their alternative
motion for stay included within their Memorandum in Opposition to Motion for
Preliminary Injunction (Document No. 29) to request a stay of any, arguendo, order
granting a preliminary injunction or judgment to the Plaintiffs until appellate review
is completed at the Court of Appeals or, alternatively, until such time as the
Defendants obtain a ruling from the Court of Appeals on a motion made in that
Court to stay a ruling in Plaintiffs favor. The only change in this motion is to clarify
that these Defendants request a stay of either duration although they prefer that this
Court grant a stay to last throughout the appellate process.
This amended motion incorporates by reference the grounds for the stay
previously set forth in their alternative motion for stay filed last week; however,
since then, a significant development has occurred in the issuance of last weeks

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decision in DeBoer v. Snyder, No. 14-1341, 2014 WL 5748990 (6th Cir. Nov. 6, 2014),
which upheld same-sex marriage bans of four states. That decision may very well set the
stage for the United States Supreme Court to agree to decide the constitutional issues
raised in that case and other same-sex marriage cases. Moreover, as discussed in the
Memorandum of these Defendants in Opposition to Summary Judgment filed yesterday
(Document No. 34), DeBoer strongly supports their Federalism defenses in this case and
their defenses to Plaintiffs Constitutional claims.
As noted previously, although the Bostic v. Schaefer, 760 F.3d 352 (4th Cir.
2014) case is decided and the United States Supreme Court denied certiorari, the
Panel did not consider a number of dispositive defenses raised in the instant case.
Moreover, it is a Panel decision and the Appellate Court rules permit appellants to
request initial en banc review that, if granted, could lead to a different conclusion at
the Court of Appeals. Rule 35, FRAP. The Court of Appeals should be given the
opportunity to review this matter en banc, consideration that was apparently not
sought in Bostic. That Court may also want to address the DeBoer decision as the
United States Supreme Court may very well do so.
The Fourth Circuit is likely to want to conclude the appellate process quickly
regardless of outcome. In the meanwhile, the window should not be opened on
same-sex marriages at the substantial risk of closure again should the Defendants
appeal be successful. Therefore, the Governor and Attorney General respectfully
request that any order of this Court granting a preliminary injunction or judgment
to Plaintiffs be stayed until appellate review is completed at the Court of Appeals or

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alternatively, until such time as the Court of Appeals acts on a motion for stay made
by these Defendants in that Court.
ALAN WILSON
Attorney General
Federal ID No.10457
ROBERT D. COOK
Solicitor General
Federal ID No. 285
Email: BCOOK@SCAG.GOV
J. EMORY SMITH, Jr.
Federal ID No. 3908
Email: ESMITH@SCAG.GOV
IAN P. WESCHLER
BRENDAN J. MCDONALD
Office of the Attorney General
Phone: (803) 734-3680
Fax: (803) 734-3677
Counsel for Defendants
Governor and Attorney General
November 11, 2014
Rule 7.02 Consultation: Counsel for Defendants consulted with counsel for Plaintiffs, and
they declined to consent to this Motion.
J. EMORY SMITH, JR.
November 11, 2014

3

14-2241 #6 - Motion For Stay

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14-2241 #6 - Motion For Stay

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Appeal: 14-2241

Total Pages:(1 of 116)

Appellant Attorney General Alan Wilson hereby moves pursuant to Rule 8,

Total Pages:(2 of 116)

November 12, 2014 (Document No. 37) of the

Honorable Richard M. Gergel, United States District Court Judge. Attachment 1.

Total Pages:(3 of 116)

Order at pp. 24 & 25.

REASONS FOR GRANTING RELIEF

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Total Pages:(5 of 116)

Total Pages:(6 of 116)

Minnesota Supreme Court concluded there is a clear distinction between a marital

The summary dismissal in Baker was thus consistent with the

principle of federalism, deferring to the States longstanding marriage definition.

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Total Pages:(8 of 116)

Accordingly, applying the prior

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DeBoer correctly concludes that the

Contrary to the District

Total Pages:(10 of 116)

As Justice Stevens concluded in Newdow, . . . [w]hile rare

instances arise in which it is necessary to answer a substantial federal question that

Total Pages:(11 of 116)

118 (2013-2014). See also Wardle, Reflection on Equality in Family Law,

support and maintenance.

Total Pages:(12 of 116)

Plaintiffs wife alleged that she was a victim of

unconstitutional sex-based discrimination sanctioned by the South Carolina court

This Circuit, however, applied the domestic relations

Total Pages:(13 of 116)

Total Pages:(14 of 116)

prerogative of the State to define marriage -- and state courts to adjudicate

Total Pages:(15 of 116)

Total Pages:(16 of 116)

The Court found that no fundamental right to same-sex marriage and

Total Pages:(17 of 116)

For these reasons and those set forth in our Memorandum in

Opposition to Preliminary Injunction, South Carolina law is Constitutional.

Total Pages:(18 of 116)

people to determine marital law. As stated in Windsor, [e]ach state as a sovereign

The recognition of civil

Total Pages:(19 of 116)

Total Pages:(20 of 116)

November 13, 2014

/s/ J. Emory Smith, Jr.

November 13, 2014

Order of the District Court, November 12, 2014

Total Pages:(21 of 116)

2:14-cv-04010-RMG Date Filed 11/12/14 Entry Number 37

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Colleen Therese Condon and

Civil Action No. 2: 14-401O-RMG

2:14-cv-04010-RMG Date Filed 11/12/14 Entry Number 37

2 Defendants Wilson and Haley incorporated into their memorandum in opposition to

2:14-cv-04010-RMG Date Filed 11/12/14 Entry Number 37

2:14-cv-04010-RMG Date Filed 11/12/14 Entry Number 37

2:14-cv-04010-RMG Date Filed 11/12/14 Entry Number 37

Eleventh Amendment Immunity

2:14-cv-04010-RMG Date Filed 11/12/14 Entry Number 37

McBurney v. Cuccinelli, 616 F.3d 393, 401 (4th Cir. 2010).