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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Colleen Therese Condon and Anne )
Nichols Bleckley, ) Civil Action No. 2:14-cv-04010-RMG
)Plaintiffs, )
)
v. )
) MEMORANDUM OF GOVERNORNimrata (Nikki) Randhawa Haley, in her ) AND ATTORNEY GENERAL
official capacity as Governor of South ) IN OPPOSITION TO MOTION FOR
Carolina; Alan M. Wilson, in his official ) PRELIMINARY INJUNCTION ANDCapacity as Attorney General; and Irvin ) ALTERNATIVE MOTION / REQUEST
G. Condon in his official capacity as ) FOR STAY
Probate Judge of Charleston County, ))
Defendants. )
__________________________________ )
Governor Nikki Haley and Attorney General Alan Wilson (Defendants) oppose
Plaintiffs Motion for Preliminary Injunction for the reasons discussed below.
This suit is barred and should not proceed due to multiple grounds not considered by the
Fourth Circuit Court of Appeals same-sex marriage panel decision. Bostic v. Schaefer, 760 F.3d
352 (4th Cir. 2014). Those grounds include theRooker-Feldman doctrine, the failure of the 2-1
Bosticpanel decision to recognize and apply prior, controlling precedent of the Fourth Circuit,
Federalism, the Eleventh Amendment, lack of standing to sue the Governor and the Attorney
General as well as other doctrines warranting dismissal including abstention and comity to
earlier filed federal proceedings.
Plaintiffs are of the same-sex and seek marriage in this state. They object to a State
Supreme Court ruling, discussed infra, that directed the Defendant, Judge Condon, not to issue
them a marriage license. State law does not allow or recognize same-sex marriages, and
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Plaintiffs challenge those provisions. S.C. Code Ann 20-1-10 and 20-1-15; S.C. Const art.
XVII, 15 (Attachment A to this Memorandum). This case not only presents the question of
whether those laws are valid, but also whether this suit should be dismissed due to the above
defenses. Although those defenses are dispositive, to the extent necessary, these Defendants
argue against the precedent ofBostic on the merits of Plaintiffs challenge to South Carolina law.
Our States laws are valid under the equal protection and due process clauses. Among other
errors, the Bostic panel has misapplied the Loving v. Virginia, 388 U.S. 1 (1967) to alter an
element historically inherent in marriage, a union of a man and a woman.
The issue of same-sex marriage has proceeded through the Federal Courts in other states
at an unprecedented pace. Centuries of precedent have been swept away in other jurisdictions in
the space of only two or three years. Never have the Courts made judgments so quickly about an
issue that had received little attention before now. But the legal proceedings are not over. The
United States Supreme Court has not weighed in. Many Courts of Appeals have not decided the
cases before them or are still in process in the District Courts. Although a 2-1 Panel of the Court
of Appeals for the Fourth Circuit inBostic has overturned Virginias same-sex marriage ban, that
Panel did not consider defenses that are dispositive of the instant case, and the en banc Court of
Appeals has not ruled on those defenses or the merits of the constitutional challenges. The
defenses named above and discussed, infra, take this case outside of the Bostic precedent and
warrant judgment for the Defendants.
I
JURISDICTIONAL AND OTHER BARS TO THIS SUIT
The following grounds deprive this Court of jurisdiction or otherwise warrant dismissal
of this suit or deference to other pending Federal litigation.
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A
TheRooker-FeldmanDoctrine Is A
Jurisdictional Bar To This Action
This Court lacks jurisdiction to proceed in this case because the RookerFeldman
doctrine bars review of the following Order of the South Carolina Supreme Court in State ex rel
Wilson v. Condon,No. 2014-002121, 2014 WL 5038396, at *1-2 (S.C. Oct. 9, 2014):
Currently, the issue of whether Article XVII, Section 15 of the South Carolina
Constitution . . . and Sections 20110 through 15, violate the United StatesConstitution is actively under consideration by Judge Childs in the Bradacs case
[.1. Katherine Bradacs and Tracie Goodwin v Haley, et al, Civil Action No.
3:13-cv-
02351-JFA] . . . Respondent and all other probate judges are herebydirected not to issue marriage licenses to same-sex couples pending a decision by
the Federal District Court inBradacs. (emphasis added)
.
Plaintiffs place this ruling at issue in their complaint in that allege that Defendant Judge Condon
declined to issue [them a marriage] license for the sole reason that the proceedings instituted by
Defendant Wilson resulted in an order from the South Carolina Supreme Court forbidding the
issuance of marriage licenses to same-sex couples before an order requiring such issuance had
been entered by the United States District Court for the District of South Carolina. Complaint,
23. Their Prayer asks that Judge Condon be enjoined in this action from enforcement of any
provisions of South Carolina law that exclude same-sex couples from marriage. Therefore, they
request review and relief squarely in conflict with the Supreme Courts order.0F1
TheRookerFeldmandoctrine . . . prohibits the lower federal courts from reviewing or
rejecting state court judgments [and] serves as a jurisdictional bar to federal court review of each
1 Defendant Judge Condon, on Friday, asked the Supreme Court to amend its Order to apply to
any other same-sex marriage case pending before the Federal District Court of South Carolina.At least until the Supreme Court changes its Wilson v. Condon order, this Court lacks authority
to proceed in the instant case underRooker-Feldman and should abstain, as discussed infra.
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of the federal claims alleged in the Complaint. . . . Except in limited circumstances not applicable
here, the only federal court with the authority to reverse or modify the judgments of state courts
is the Supreme Court itself.Exxon Mobil, 544 U.S. at 283 (citing 28 U.S.C. 1257). Stratton v.
Mecklenburg Cnty. Dep't of Soc. Servs., 521 F. App'x 278, 288 (4th Cir. 2013) cert. denied, 134
S. Ct. 1290 (2014).
Last year, the Honorable David Norton applied the RookerFeldman doctrine to bar
review of State Court orders related to that matter. As he stated:, this court must abstain from
hearing an injunctive challenge to that [Supreme Court] decision under RookerFeldman. Only
the United States Supreme Court can review the South Carolina Supreme Court's judgment that
adoption by Adoptive Couple would be in the best interests of the child. V.B. ex rel. Smith v.
Martin, No. 2:13-CV-2073-DCN, 2013 WL 4018248, at *1 (D.S.C. July 31, 2013).
[T]he test[for application of Rooker-Feldman] is . . .whether the relief sought in the
federal suit would reverse or modify the state court decree. Adkins v. Rumsfeld, 464 F.3d 456,
464 (4th Cir. 2006). Plaintiffs certainly request such relief because it is contrary to the Supreme
Courts Order that probate judges not issue marriage licenses pending theBradacs decision. That
Order was specific to theBradacs case. It was not conditioned on other Federal litigation such
as the instant, subsequently filed case, and an order in this case would conflict with that Order.
Plaintiffs could have sought relief consistent with the Supreme Courts Order. As
intervening parties in the State v. Condoncase, they could have petitioned for certiorari from that
Order. They could have requested that the Supreme Court modify the Order to include any other
federal litigation in this State. They could have intervened in Bradacs and requested a
preliminary injunction in that case. They could ask this Court to certify the question to the
Supreme Court of whether its Order would encompass this litigation (Rule 244, SCACR), but
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they have not done so. Instead, they seek relief in the instant case that is contrary to the Supreme
Courts Order in State v Condon. They cannot do so, and this Court lacks jurisdiction to enter an
order in this case contrary to the State Supreme Court as that Order is now written.
Although Plaintiffs argue that Bradacs is different because it asserts a claim for
recognition of a District of Columbia marriage license, it requests that same-sex persons be
allowed to marry in South Carolina. Moreover, the South Carolina Supreme Court expressly tied
its directive to probate judges to the Bradacs litigation. Plaintiffs effort to distinguishBradacs
and criticism of the Defendants Petition that resulted in the Supreme Court order further
demonstrates that they are launching a collateral attack on the ruling of the Supreme Court.
Although the Supreme Courts Order is clearly limited to Bradacs, if arguendo, this
Court has questions regarding the scope of that Order, the Defendants Governor and Attorney
General respectfully request that this Court certify those questions to the State Supreme Court
pursuant to Rule 244. They believe that the Supreme Court would respond quickly to any such
certification so that no significant delay would result from that process.
B
This Court Is Not Bound ByBostics Conclusion ThatBaker v. Nelson Need Not Be
Followed By It; Further the Fourth Circuit Did Not Consider that Federalism Requires
These Issues To Be Brought In State Court
1
Introduction
Bosticis not binding on this Court with respect to the Fourth Circuit panels conclusion
that it need not follow Baker v. Nelson, 409 U.S. 810 (1972). Bakerdismissed an appeal from
the Minnesota Supreme Court for want of a substantial federal question on the precise issue
beforeBosticand this Court: whether there is a federal constitutional right of same-sex couples
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to marry. See Baker, 191 N.W.2d 185 (Minn. 1971). In summarily dismissing the appeal in
Baker, the Supreme Court also necessarily rejected the argument made by plaintiffs there that the
right to marry in such instance is a fundamental right.
However, the Fourth Circuit panel in Bostic held that Baker was no longer binding
precedent because of the significant doctrinal developments that occurred after the [Supreme]
Court issued its summary dismissal in that case. 760 F.3d at 375. This was a clear disregard by
the panel of its own precedents, as well as an ignoring of the command of the Supreme Court in
Hicks v. Miranda, 422 U.S. 332 (1975).
In other words, it is clear that Bostic, although acknowledging that the issues in Baker
were identical to those before it, ignored the well-established Fourth Circuit prior panel rule
that one panel cannot overrule a decision by another panel. McMellon v. United States, 387
F.3d 329, 332 (4th
Cir. 2004) (citing cases). This rule requires a panel to follow the earlier of
conflicting opinions. Id. Beginning in 1975, with the panel decision inHogge v. Johnson, 526
F.2d 833, 835 (4th
Cir. 1975), the Fourth Circuit, adhering to the mandate of the Supreme Court
in Hicks v. Miranda, supra, found that the Supreme Courts summary dismissal for want of a
substantial federal question on the same issues is a perfectly clear precedent that is binding on
us. Even though, inHogge, the Fourth Circuit panel disagreed with the summary dismissal, and
believed that a substantial federal question existed, former Supreme Court Justice Tom Clark
sitting as a Fourth Circuit panel member -- stated that the panel was foreclosed by Hicks
holding that such a summary dismissal by the Supreme Court, constituted a decision on the
merits and was, as a result, binding upon the panel. Hogge, 526 F.2d at 836 (Clark, J.
concurring).
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Fourth Circuit decisions have consistently applied this prior panel rule, established in
Hogge, thus requiring that summary disposition by the Supreme Court must be followed --
regardless of the panels view of the merits of the Supreme Courts action. See, Thonen v.
Jenkins, 517 F.2d 3, 7 (4th
Cir. 1975) [Although we agree . . . that the Supreme Courts
summary affirmance of a three judge court decision is not as strong precedent as a full Supreme
Court opinion . . ., we also agree with the Second Circuit that the privilege of disregarding every
summary Supreme Court holdings rests with that court alone.]; Goldfarb v. Sup. Ct. of Va., 766
F.2d 859, 862 (4th
Cir. 1985) [The summary affirmance of this decision by the United States
Supreme Court necessarily agreed that a rational basis lay beneath Rule 1A: 1(4)(d), and we may
not re-open that foreclosed question. (citing Hicks v. Miranda, supra)]; Idaho Assoc. of
Naturopathic Physicians, Inc. v. U.S. Food and Drug. Adm., 582 F.2d 849, 853-854 (4th
Circ.
1978) [reviewing a number of summary affirmances and dismissals by the Supreme Court on the
issue and stating that [i]n light of the decisions of the Supreme Court that we have reviewed, we
find that the Naturopaths basic claim has been firmly, repeatedly and authoritatively rejected.];
Repub. Party of N.C. v. Hunt, 991 F.2d 1202, 1204 (Phillips, J., dissenting from denial of
rehearing en banc) [While such a summary affirmance does not of course foreclose later, full
consideration of the dispositive issue by the Supreme Court . . . the decision affirmed and its
rationale are binding on this court until that happens]; Westinghouse Elec. Corp. v. State of Md.
Comm. On Human Relations, 520 F.Supp. 539, 547 (D. Md. 1981) [following Hicks and Hogge,
the District Court adhered to summary dispositions of Supreme Court, concluding that only the
Supreme Court could disregard these precedents]. None of these Fourth Circuit decisions
recognize that a Circuit Court or District Court is at liberty to decide that a summary decision by
the Supreme Court has been abandoned or superseded by doctrinal developments.
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Accordingly, there is an irreconcilable conflict between Hogge and its progeny and
Bostic in this regard. Applying the prior panel rule, set forth inMcMellon, it is evident that
Bostic is not binding precedent upon this Court with respect to its conclusion that Baker v.
Nelson is no longer good law. Hogge and subsequent Fourth Circuit decisions, referenced
above, adhere to the rule set forth in Hicks v. Miranda, supra that lower courts are bound to
follow the Supreme Courts summary decisions until such time as the [Supreme] Court informs
[them] that [they] are not. Hicks, 422 U.S. at 344. TheBosticpanel ignored this rule, taking it
upon itself to decide that doctrinal developments render Baker v. Nelson archaic or
abandoned, and thus no longer applicable. In short, regardless of the merits of Plaintiffs
claims,Hoggeand the subsequent decisions, referenced above, must be followed by this Court.
Hoggeand these other earlier panel decisions control here, thereby requiring adherence toBaker.
Any subsequent doctrinal developments, found by Bostic, must be assessed by the Supreme
Court, not by the Fourth Circuit, or by this Court. See Conde-Vidal v. Garcia-Padilla, ____
F.Supp. 2d ____, 2014 WL 5361987 (D.C.P.R. 2014) [Baker is binding on District Court].
Moreover, any conclusion by Bostic regarding federalism is not binding here, either.
Bosticaddressed the argument that a federalism-based interest in defining marriage is a suitable
justification for the Virginia Marriage Laws. 760 F.3d at 378. However, the Fourth Circuit
rejected this argument, concluding that United States v. Windsor, 133 S.Ct. 2675 (2013) does
not teach us that federalism principles can justify depriving individuals of their constitutional
rights; it reiterates [Loving v. Virginias ] admonition that the states must exercise their authority
without trampling constitutional guarantees. Virginias federalism-based interest in defining
marriage cannot justify its encroachment on the fundamental right to marry. 760 F.3d at 379.
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However, Bostic did not address the same federalism argument we are making in this
case. Our argument, in contrast to Bostic, and recognized in Windsor and Elk Grove Unified
School Dist. v. Newdow, 542 U.S. 1 (2004), abrogated on other grounds,Lexmark Intern., Inc. v.
Static Control Components, Inc., 134 S.Ct. 1377 (2014), is based upon the domestic relations
exception, applying the long-held view that the federal courts, as a general rule do not
adjudicate marital status even where there might otherwise be a basis for federal jurisdiction.
Windsor, supra, 133 S.Ct. at 2691. As one Court has put it, [a] federal court presented with
matrimonial issues or issues on the verge of being matrimonial in nature should abstain from
exercising jurisdiction so long as there is no obstacle to their full and fair determination in state
courts. American Airlines v. Block, 905 F.2d 12, 146 (2nd
Cir. 1990). That is the case here.
Indeed, scholars as well as courts, including the Fourth Circuit, have concluded that the
domestic relations exception is applicable to federal question jurisdiction, thereby depriving a
federal court of subject matter jurisdiction. As one leading scholar has recently concluded, there
is no federal question jurisdiction to hear domestic relations matters, explaining that
[t]he federal courts simply do not have the statutory federal questionjurisdiction that would enable them to hear cases challenging the definition
of marriage, divorce, alimony, child custody, or probate. These cases raised
religious questions, which is why in England they were heard by the
Ecclesiastical Courts and not by the common law courts or the courts ofequity.
Calabresi, The Gay Marriage Cases and Federal Jurisdiction (October 2, 2014), Northwestern
Law and Econ. Research Paper No. 14-18; Northwestern Public Law Research Paper No. 14-50,
at 47. Available at SSRN: http://ssm.com/abstract=2505514 or http://dx.doi.org/10.2139/ssm.
2505515. This analysis is entirely consistent with that of another scholar who has stated that
[n]ot infrequently, courts have dismissed federal question cases for lack of subject matter
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http://ssm.com/abstract=2505514http://ssm.com/abstract=2505514http://dx.doi.org/10.2139/ssmhttp://dx.doi.org/10.2139/ssmhttp://dx.doi.org/10.2139/ssmhttp://ssm.com/abstract=2505514 -
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jurisdiction, citing the domestic relations exception. Harbach, Is The Family a Federal
Question? 660 Washington and Lee L.Rev. 131 146, and cases collected at n. 59.
Among the numerous cases cited by Professor Harbach is the Fourth Circuit decision in
Wilkins v. Rogers, 581 F.2d 399, 403-404 (4th
Circ. 1978). Wilkins involved, among other
things, a wifes suit against her former husband regarding repayment of money allegedly
advanced during the marriage as well as support and maintenance. Plaintiffs wife alleged that
she was a victim of unconstitutional sex-based discrimination sanctioned by the South Carolina
court system. Id. at 403. She sought to invoke the federal courts original jurisdiction under
both diversity, as well as federal question jurisdiction.
The Fourth Circuit, however, applied the domestic relations exception to dismiss the case
on both jurisdictional grounds, noting that [i]t has long been held that the whole subject of
domestic relations belongs to the laws of the state and not to the laws of the United States. Id.
Thus, according to the Fourth Circuit, . . . such disputes do not present a federal question,
notwithstanding allegations of sexual discrimination. . . . Therefore, original jurisdiction over
Wilkins claims does not lie. Id.at 404. (emphasis added).
While the Fourth Circuit went on to apply Pullmanand other forms of abstention as well,
it is clear, as Professor Harbach concludes, that the Wilkinscase stands for the proposition that
the domestic relations exception deprives federal courts of federal question jurisdiction.
Again, the prior panel rule would govern here, requiring this Court to follow Wilkinsinstead of
theBosticdecision. LikeBaker v. Nelson, supra, which dismissed the same sex marriage issue
for want of a substantial federal question, Wilkinsdismissed a federal claim regarding a marital
dispute, based upon alleged sex discrimination, for precisely the same reason asBaker want of
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a federal question. Therefore, this Court lacks subject matter jurisdiction and is obligated to
follow Wilkins, as well asBaker.
In summary, the Fourth Circuit panel possessed no authority to disregard Baker, which
constitutes the one Supreme Court decision on the merits regarding same-sex marriage. While
the Fourth Circuit speculated as to doctrinal developments, i.e. subsequent decisions of the
Supreme Court and how those cases may be applicable to the constitutional issue presented,
application of Bakershould have been all that was necessary to decide Bostic. The Court was
not free to determine the Supreme Courts doctrinal developments. Nor is this Court.
Moreover, the Fourth Circuit panel did not consider the issue of subject matter jurisdiction or
federalism as it relates to the longstanding domestic relations exception, as applied in both
Wilkins, as well asNewdowand Windsor. We will discuss each of these issues in greater detail
below.
2
Principles of Federalism dictate that
this action is improperly brought in Federal Court
As the Fourth Circuit has stated, [i]t is well established that before a federal court can
decide the merits of a claim, the claim must invoke the jurisdiction of the court. Miller v.
Brown, 462 F.3d 312, 316 (4th
Cir. 2006). Such Art. III jurisdiction includes issues of
justiciability. Id. Federal courts, in order to satisfy the . . . overriding and time-honored
concern about keeping the Judiciarys power within its proper constitutional sphere . . . must put
aside the natural urge to proceed directly to the merits of [an] important dispute and to settle it
for the sake of convenience and necessity. Hollingsworth v. Perry, 133 S.Ct. 2652, 2661
(2013), quotingRaines v. Byrd, 521 U.S. 811, 820 (1997). Moreover, in quintessentially local
issue[s] which are imbued with sufficient local character . . . state courts ought to be accorded
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comity from the federal courts with regard to its regulation. Johnson v. Collins, 199 F.3d 710,
731 (4th
Cir. 1999) (Luttig, J. concurring in judgment).
We have discussed above that scholars, as well as the Fourth Circuit in Wilkins v. Rogers,
supra, have concluded that the domestic relations exception deprives a federal court of federal
question jurisdiction. In this instance, this Court should dismiss this action, based upon
overriding principles of federalism whether that analysis is based upon federal question
jurisdiction, justiciability or abstention. Because this case seeks to decide the core question of
two peoples marital status, it belongs in state court rather than in federal court, regardless of the
legal theory upon which it is based. As only recently stated in United States v. Windsor, 133
S.Ct. supra, at 2691 (2013), the federal courts, as a general rule, do not adjudicate marital status
even where there might otherwise be a basis for federal jurisdiction.
For over a century, the United States Supreme Court, as well as lower federal courts,
have concluded that actions concerning domestic relations, such as those deciding the status of
marriage, are not properly brought in Federal Court, but are conclusively within the authority of
state courts. Since the federal Constitutions adoption, such actions have been deemed outside
the province of federal law and equity courts, belonging instead to the state ecclesiastical courts.
See State of Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 384 (1930). Of course, in South
Carolina, the successor to the ecclesiastical court is the probate court. Thus, based upon
compelling interests of lack of federal question jurisdiction, and federalism, this case should be
dismissed as improperly brought here, rather than in the courts of South Carolina.
As Judge Posner recognized in Jones v. Brennan, 465 F.3d 304 (7th
Cir. 2006), the
domestic relations exception applies equally to federal questions. Such exception was always
deemed applicable to diversity cases, because domestic relations adjudications do not involve
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law or equity dispositions. Judge Posner points out that the statute relating to federal questions
uses the same common law or equity language as the diversity statute. Thus, as he concludes,
the domestic relations exception was intended to apply to federal question cases too. 465 F.3d
at 307. While Judge Posner relied upon a federal question interpretation, similarly to that of the
Fourth Circuits decision in Wilkins jurisdictional analysis, other courts have looked to the
foundations of federalism particularly justiciability and abstention -- in concluding that
domestic relations issues are more properly a matter for state courts to decide, even where
federal questions are deemed to be involved. Harbach, supraat 165-175.
Indeed, Elk Grove United School Dist. v. Newdow, supra is strongly supportive of this
federalism analysis. Newdow was a case clearly involving a federal question a claim that
recitation of the Pledge of Allegiance violated the Establishment Clause with respect to
Petitioners daughter, by using the phrase under God. The Supreme Court noted that
Newdowsparental statuswas defined by California domestic relations law. 542 U.S. at 16.
(emphasis added). In the Supreme Courts view, it is improper for the federal courts to
entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in
dispute when prosecution of the lawsuit may have an adverse effect on the person who is the
source of the plaintiffs claimed standing. Thus, the Court concluded that [w]hen the hard
questions of domestic relations are sure to affect the outcome, the prudent course is for the
federal court to stay its hand rather than to reach out to resolve a weighty question of federal
constitutional law.542 U.S. at 17 (emphasis added). See alsoAnkenbrandt v. Richards, 504
U.S. 609, 716 (Blackman, J. concurring) [The core of domestic relations adjudication
involves declarations of status, e.g. marriage, annulment, divorce, custody and paternity.].
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(M.D. Fla. 2005), the Court noted it should defer to the state courts in matters of family law.
And, in Whiteside v. Neb. State Health and Human Services, 2007 WL 2123754 (D. Neb. 2007),
the Court dismissed a 1983 action pursuant to the domestic relations exception, based upon
Newdow.
The recent Supreme Court decision, United States v. Windsor, suprais fully supportive of
Newdows analysis. In Windsor, New York recognized same-sex marriages performed
elsewhere, as well as those in that state. However, the federal Defense of Marriage Act
(DOMA) required that, for federal purposes, marriage means only a legal union between
one man and one woman as husband and wife. . . . In the words of the Supreme Court, [w]hat
the State of New York treats as alike the federal law deems unlike by a law designed to injure the
same class the State seeks to protect. As a result, DOMA, because of its reach and extent,
departs from [the] . . . history and tradition [of the federal government] of reliance on state law to
define marriage. 133 S.Ct. at 2392.
The Windsor Court, sensitive to these federalism concerns in the area of domestic
relations, reviewed in detail the longstanding recognition by the Court that, except for
deprivation of constitutional rights, such as involving racial discrimination, domestic relations is
an area that has long been regarded as a virtually exclusive province of the States. Id. at
2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975)). As explained by the Supreme Court,
[t]he definition of marriage is the foundation of the States broader authority
to regulate the subject of domestic relations with respect to the [p]rotection
of offspring, of property interests, and the enforcement of maritalresponsibilities. [citing Williams v. North Carolina, 317 U.S. 287, 298
(1942)]. . . . [T]he states, at the time of the adoption of the Constitution,
possessed full power over the subject of marriage and divorce . . . [and] the
Constitution delegated no authority to the Government of the United Stateson the subject of marriage and divorce. Haddock v. Haddock, 201 U.S.
562, 575, 26 S.Ct. 525, 50 L.Ed. 867 (1906); see also In re Burrus, 136 U.S.
586, 593-594, 10 S.Ct. 850, 34 L.Ed. 500 (1890) (The whole subject of
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domestic relations of husband and wife, parent and child, belongs to the
laws of the States and not to the laws of the United States). . . .
The significance of state responsibilities for the definition and regulation of
marriage dates to the Nations beginning; for when the Constitution was
adopted for common understanding was that the domestic relations ofhusband and wife and parent and child were matters reserved to the States.
Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-384, 50 S.Ct. 154, 74
L.Ed. 489 (1930).
Id.
In short, because DOMA -- a federal act -- interfered with New Yorks determination as
to what constituted a valid marriage, it was necessary for the Supreme Court to step in. As one
commentator has noted, DOMA was an unusual federal intrusion into an issue previously
reserved for the states . . . [i]n fact, before DOMAs enactment in 1996, the federal government
had by history, and tradition relied on the states determination of what constituted marriage.
Mir, Windsor and Its Discontents . . ., 64 Duke Law Journal, 53, 58 (2014). According to
Justice Kennedy,
[t]he responsibility of the States for the regulation of domestic relations is
an important indicator of the substantial societal impact the States
classifications have in the daily lives and customs of its people. DOMAsunusual deviation from the usual tradition of recognizing and accepting
state definitions of marriage here operates to deprive same-sex couples of
the benefits and responsibilities that come with the federal recognition of
their marriages. This is strong evidence of a law having the purpose andeffect of disapproval of that class. The avowed purpose and practical effect
of the law here in question are to impose a disadvantage, a separate status,
and so a stigma upon all who enter into same-sex marriages made lawful bythe unquestioned authority of the States.
Id. at 2693 (emphasis added).
In other words, Windsor involved interference [by the federal government] with
traditional state prerogatives, i.e. the status of the marriage relationship. Kitchen v. Herbert,
755 F.3d 1193, 1236 (10th
Cir. 2014). As Chief Justice Roberts observed in his Windsordissent,
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[t]he dominant theme of the majority opinion is that the Federal
Governments intrusion into an area central to state domestic relations law,
applicable to its residents and citizens is sufficiently unusual to set offalarm bells. . . . [I]t is undeniable that [the majority opinion] . . . is based on
federalism.
133 S.Ct. at 2697 (Roberts, C.J. dissenting). The Chief Justice concluded that the Courts
opinion in Windsor is based upon the historic and essential authority to define the marital
relation, allowing states to continue to utilize the traditional definition of marriage. Id. at
2696.
Scholars agree with Chief Justice Roberts reading that Windsoris based primarily upon
federalism. As has been stated, . . . Justice Anthony Kennedys majority opinion in Windsor
left little doubt that federalism principles were crucial to the results. DOMA was
unconstitutional not simply because it discriminated against same-sex couples who were legally
married in New York, butbecause it intruded on the states sovereign authority to define
marriage for themselves. Young and Blendel, Federalism, Liberty, and Equality in United
States v. Windsor, 2013 Cato Supreme Court Review, 117, 118 (2013-14). As one scholar has
correctly observed, as a federalism-in-family law decision, Windsorcan be linked with a long
line of decisions stressing federal deference to state authority to regulate family matters . . . such
as Elk Grove Unified School District v. Newdow, [supra] . . . United States v. Morrison, [529
U.S. 598 (2000)] . . . Jones v. United States,[529 U.S. 848 (2000)] . . . United States v. Lopez,
[514 U.S. 549 (1995)] . . . and United States v. Yazell, [382 U.S. 341 (1966)]. Wardle,
Reflection on Equality in Family Law, 1385 Mich. St. L. Rev. 1422 (2013). As Judge Duffy put
it in Norris v. Singletary, 2010 WL 331766 (D.S.C. 2010) . . . federal appellate courts have
held that federal district courts may abstain for reasons of comity and common sense from cases
better handled by state courts having authority over matrimonial and family matters.
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Accordingly, it is important to note that only last year, the Court reaffirmed the principle
that individual states should determine the status of a marriage, whether that marriage consists of
the traditional relationship, or one which includes the legal union between the same sexes. In
South Carolina, by adopting Art. XVII, 15, voters supported the traditional definition of
marriage by almost 80%, reinforcing the right of citizens to debate so they can learn and decide
and then, through the political process act in concert. . . . See Schuette v. Coalition to Defend
Affirmative Action, 134 S.Ct. 1623, 1636-7 (2014). Such is the province of the States, rather than
the federal courts.
According to Newdow, as well as Windsor, federal courts must honor the States
sovereign right in this area, notwithstanding that a constitutional challenge may be involved.
The state courts may and are required to hear such challenges. Huffman v. Pursue, Ltd., 420
U.S. 592, 611 (1975) [state judges are bound by federal law and must remain faithful to their
constitutional responsibilities under Art. VI of the federal Constitution.]; See alsoIn re Estate of
Mercer v. Bryant, 288 S.C. 313, 318, 342 S.E.2d 591, 593 (1986) [We hold that S.C. Code Ann.
21-7-480 (1976) is unconstitutional in its entirety because it violates the equal protection clause
of the United States Constitution.]. In this instance, the language contained in Art. XVII, 15
has never been interpreted by the courts in South Carolina. South Carolinas courts have not yet
defined the term contracts or other legal instruments as employed therein. Thus as inNewdow,
there will undoubtedly be family rights that are in dispute with respect to the scope of Art.
XVII, 15. As inNewdow, hard questions are sure to affect the outcome, particularly where a
South Carolina court would have to address the question of the breadth of the phrase contracts
or other legal instruments. Such a contract provision was not contained in the constitutional
amendment at issue in Bostic and its phraseology could be deemed to have constitutional
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significance in this case. Compare Romer and Windsor, supra [finding animus against groups
based upon sexual orientation]. The protection of rights of contract in the South Carolina
Constitution suggests no such animus here. Notwithstanding Plaintiffs federal constitutional
claims, such claims are thus intertwined with family law rights in South Carolina, not yet
defined by state courts. Deference to the courts of South Carolina in this important area of
domestic relations does not mean that the state courts will not consider nor adjudicate the
important constitutional claims raised by this case. To the contrary, our South Carolina courts
will certainly do so. However, at the same time, state courts must be allowed to define the scope
of domestic relations rights in this area.
Windsorsreliance upon federalism principles is incorrectly distinguished by the Fourth
Circuit inBostic. Contending that Windsor is actually detrimental to any federalism argument,
the Fourth Circuit quoted from Windsor that state laws defining and regulating marriage, of
course, must respect the constitutional rights of persons. . . citing Loving v. Virginia, supra.
Loving, however, involved a criminalization of Virginias anti-miscegenation laws, based upon a
racial classification, not an effort to define marriage in its traditional form between a man and a
woman. Under the Fourth Circuits analysis, principles of federalism could never be applied by
federal courts if constitutional rights are alleged. However, the Supreme Court, through Justice
Black, has consistently recognized that principles of federalism do,
. . . not mean blind deference to States Rights any more than it means
centralization of control over every important issue in our National
Government and its courts. . . . What the concept does represent is a systemin which there is sensitivity to the legitimate interests of both State and
National Governments, and in which the National Government, anxious
though it may be to vindicate and protect federal rights and federal interests,
always endeavors to do so in ways that will not unduly interfere with thelegitimate activities of states.
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Younger v. Harris, 401 U.S. 37, 44 (1971). As the Court has emphasized, state courts have the
solemn responsibility equally with the federal courts to safeguard constitutional rights. . . .
Trainor v. Hernandez, 431 U.S. 434, 443, (quoting Steffel v. Thompson, 415 U.S. 452, 460-1
(1974).
As noted above, the federalism argument we are asserting here based upon the
domestic relations exception was never considered in Bostic. Whether this exception is
viewed as an issue of federal question jurisdiction, or an issue of justiciability or abstention, it is
nevertheless applicable. This Court should stay its hand to allow the state courts to resolve the
status of marriage, uniquely a province of the state courts, rather than the federal courts. As
already noted, the Fourth Circuit has applied this domestic relations exception to a
constitutional claim, based upon alleged sex discrimination. In Wilkins v. Rogers, supra, the
Court refrained from ruling upon a question of sex discrimination. Federal question jurisdiction,
as well as diversity was invoked. However, the Fourth Circuit found that federal courts should
not hear such claims:
[i]t has long been held that the whole subject of domestic relations belongsto the laws of the state and not to the laws of the United States. Ex Parte
Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 34 L.Ed. 500 (1890). Thus,
original jurisdiction of suits primarily involving domestic relations is
improper, notwithstanding that the parties are residents of different states.E.g. Albanese v. Richter, 161 F.2d 688 (3d 1947), cert. denied, 332 U.S.
782, 68 S.Ct. 49, 92 L.Ed. 365 (1947). And such disputes do not present a
federal question, notwithstanding allegations of sexual discrimination. . . .Therefore, original jurisdiction over Wilkins claims does not lie.
581 F.2d at 403-404. But see, U.S. v. Johnson, 114 F.3d at 476 (4th
Circ. 1997).
In short, this Court should refrain from injecting this Court into this case and defer to the
state courts based uponNewdowand Windsor, as well as Wilkins v. Rogers. The issue here, at its
core, is the status of marriage. Federal courts not only lack federal question jurisdiction to
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adjudicate these issues, but are ill-equipped to address these kinds of domestic relations
questions. Art. XVII, 15 has never been interpreted by the courts of South Carolina. Rather
than a rush to judgment, this case should be decided in the proper state court the court which
has traditionally handled questions relating to marriage.
This analysis is fully supported by the Supreme Courts decision in Baker v. Nelson, 409
U.S. 810 (1972), which dismissed virtually identical issues to the claims now pending before this
Court for want of a substantial federal question. For the reasons that follow, Baker remains
binding upon this Court and fully buttresses the foregoing authorities applying principles of
jurisdiction, as well as federalism by applying the domestic relations exception.
InBaker, two men sought a marriage license. 191 N.W.2d 185 (Minn. 1971). However,
Minnesota law provided that marriage would be recognized only between a man and a woman.
The Minnesota statute was challenged on the basis of the Due Process and Equal Protection
Clauses, as well as allegedly offending the First, Eighth and Ninth Amendments. The Minnesota
Supreme Court stated that [t]hese constitutional challenges have in common the assertion that
the right to marry without regard to the sex of the parties is a fundamental right of all parties and
that restricting marriage to only couples of the opposite sex is irrational and invidiously
discriminatory. 191 N.W.2d at 186.
The Court reviewed Supreme Court decisions, particularly Skinner v. Oklahoma, 316
U.S. 935 (1942), Griswold v. Connecticut, 381 U.S. 479 (1965), and Loving v. Virginia, supra.
According to the Court,
Loving does indicate that not all restrictions upon the right to marry are
beyond the reach of the Fourteenth Amendment. But in common sense and
in a constitutional sense, there is a clear distinction between a maritalrestriction based merely upon race and one based upon the fundamental
difference in sex.
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191 N.W.2d at 187.
It is important to note that the Minnesota Supreme Court specifically rejected all of
Plaintiffs constitutional challenges. The Court found no Due Process violation, relying
principally upon Skinner. With respect to the Equal Protection claim, the Court concluded that
[t]he equal protection clause of the Fourteenth Amendment, like the due process clause, is not
offended by the states classification of persons authorized to marry. There is no irrational or
invidious discrimination. Id. at 187.
Plaintiffs then appealed the Minnesota Supreme Courts decision to the United States
Supreme Court. The Plaintiffs Jurisdictional Statement raised three separate questions to the
Supreme Court: (1) whether the States refusal to sanctify appellants marriage [between the
same sexes] deprives appellants of their liberty to marry and of their property without due
process of law under the Fourteenth Amendment; (2) whether the States refusal, pursuant to
Minnesota marriage statutes, to sanctify appellants [same-sex] marriage because both are of the
male sex violates their rights under the equal protection clause of the Fourteenth Amendment;
and (3) whether the States refusal to sanctify appellants [same-sex] marriage deprives
appellants of their right to privacy under the Ninth and Fourteenth Amendments. Baker,
Jurisdictional Statement No. 71-1027, p. 3 (Feb. 11, 1971). Importantly, the Supreme Court
dismissed [the appeal] for want of a substantial federal question. Baker v. Nelson, 409 U.S. at
810.
The Supreme Courts summary dismissal represents a ruling on the merits and is binding
upon this Court and all lower federal courts. In Hicks v. Miranda, supra, the Supreme Court
addressed the effects of a dismissal by that Court for lack of a substantial federal question.
Among other questions raised inHickswas the issue of whether a summary dismissal, for want
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of a substantial federal question, was binding on the District Court and required that court to
sustain the California obscenity statute and to dismiss the case. 422 U.S. at 343. The Supreme
Court concluded that such summary dismissal was indeed binding. According to the Hicks
Court,
[w]e agree with appellants that the District Court was in error in holding
that it would disregard the decision in Miller II. That case was an appealfrom a decision by a state court upholding a state statute against federal
constitutional attack. A federal constitutional issue was properly presented,
it was within our appellate jurisdiction . . . and we had no discretion torefuse adjudication of the case on its merits as would have been true had the
case been brought here under our certiorari jurisdiction. We are not
obligated to grant the case plenary jurisdiction, and we did not; but we were
required to deal with its merits. We did so by concluding that the appealshould be dismissed because the constitutional challenge to the California
statute was not a substantial one. The three judge court was not free to
disregard this pronouncement.
As Mr. Justice Brennan once observed, (v)otes to affirm summarily, and to
dismiss for want of a substantial federal question, it hardly needs comment,are votes, on the merits of a case. . . .; [citation omitted]. The District Court
should have followed the Second Circuits advice . . . that unless and until
the Supreme Court should instruct otherwise, inferior courts had best adhereto the view that if a court has branded a question as insubstantial, it remains
so except when doctrinal developments indicate otherwise; and later in
Doe v. Hodgson, 478 F.2d 537 . . . that the lower courts are bound bysummary decisions by this Court until such time as Court informs (them)
that they are not.
422 U.S. at 343-345. (emphasis added).
Moreover, the Court has recognized that a summary dismissal without doubt reject[s]
the specific challenges presented in the statement of jurisdiction and prevent[s] lower courts
from coming to opposite conclusions [1] on the precise issues presented and [2] necessarily
decided by those actions. Mandel v. Bradley, 432 U.S. 173, 176 (1977). The lower court must
determine the precise legal questions and facts presented in the jurisdictional statement.
Windsor v. U.S., 833 F. Supp.2d 394, 399 (S.D.N.Y. 2012).
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The Fourth Circuit has also recognized the binding effect of summary dismissals by the
Supreme Court. InHogge v. Johnson, supra, the Fourth Circuit said this:
. . . the United States Supreme Court has spoken to the question among the
circuits with respect to the meaning to be accorded to the dismissal for wantof a substantial federal question. Such is a decision on the merits binding
upon the inferior federal courts. It is stare decisis on issues properly
presented to the Supreme Court and declared by that court to be without
substance. Hicks v. Miranda, 422 U.S. 332. (1975).
The HoggeCourt then proceeded to examine the issues presented to the Supreme Court which
resulted in the summary dismissal. The Court concluded that the summary dismissal of the
appeal in Kisley [187 S.E.2d 168 (1972)] is a perfectly clear precedent that is binding upon us.
526 F.2d at 835. See alsoIdaho Assoc. of Naturopathic Physicians, Inc. v. U.S. Food and Drug.
Adm., 582 F.2d at 853-854 [In light of the decisions of the Supreme Court that we have
reviewed [summary dispositions], we find that the naturopaths basic claim has been firmly,
repeatedly, and authoritatively rejected. Because we discern nothing in dictating that their
position, once labeled insubstantial, should now be considered otherwise, we affirm the
judgments of the district court].
However, with respect to the binding force ofBaker, the Fourth Circuit, inBostic, supra
took it upon itself to disregard its own precedents, as well as the directive of the Supreme Court
inHicks v. Miranda, supra,and other cases. The Fourth Circuit panel assumed the role reserved
to the Supreme Court when it cited Windsor, and noted that Windsordid not discussBakerin its
opinion or during oral argument. 760 F.3d at 374. Of course, as discussed above, Windsorwas
not about the merits of the same-sex issue, but concerned the right of the individual state to
determine the status of marriage without federal interference.
Moreover, the Fourth Circuit relied upon an off-hand remark by Justice Ginsberg in the
oral argument in Hollingsworth v. Perry, supra, a case which was resolved based not upon the
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merits of the same-sex marriage issue, but upon standing. See 760 F.3d,Id. at n. 5. Then, the
BosticCourt, while acknowledging thatBakeraddressed the precise issues before it, 760 F.3d
at 373, proceeded to review the Supreme Courts sex discrimination cases since Baker,
concluding that
[i]n light of the Supreme Courts apparent abandonment of Baker and the
significant doctrinal developments that occurred after the Court issued itssummary dismissal in that case, we decline to view Baker as binding
precedent and proceed to the meat of the opponents Fourteenth
Amendment arguments.
760 F.3d at 375.
However, as discussed, the Supreme Court recognized in Hicks and other cases that a
Circuit Court of Appeals or a District Court may not make such an assessment regarding the
Supreme Courts doctrinal developments. Such is a matter for the Supreme Court, rather than
lower federal courts, to determine. As the Supreme Court warned inAgostini v. Felton, 521 U.S.
203 (1997),
[w]e do not acknowledge, and we do not hold, that other courts should
conclude our more recent cases have, by implication, overruled an earlier
precedent. We reaffirm that [i]f a precedent of this Court has directapplication in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of overruling its own
decisions. Rodriguez de Quijas [490 U.S. 477], supra at 484. . . (1989)].
521 U.S. at 237.
In the context of considering the question of same-sex marriage, unlike Bostic, a number
of courts have concluded thatBaker v. Nelson is binding upon them. SeeMcConnell v. Nooner,
547 F.2d 54, 56 (8th
Circ. 1976) [The District Court dismissed this action on the basis that
Baker v. Nelson . . . is dispositive of the issues raised therein. We agree.]; Wilson v. Ake, 354
F.Supp. 2d 1298, 1304-1305 (M.D. Fla. 2005) [Although Baker v. Nelson is over thirty (30)
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years old, the decision addressed the same issues presented in this action, and this Court is bound
to follow the Supreme Courts decision.];Anderson v. King County, 138 P.3d 963 (Wash. 2006)
(en banc) (Alexander, C.J., concurring) [referencing Baker, and noting that the Supreme Court
dismissed the appeal for want of a substantial federal question: Thus, the same-sex union as a
constitutional right argument was so frivolous as to merit dismissal without further argument by
the Supreme Court. A similar result is required today.];Donaldson v. State of Montana, 292
P.3d 364, 371, n. 5 [referencing cases deeming Baker as binding]; Morrison v. Sadler, 821
N.E.2d 15, 19 (Ind. App. 2005) [There is binding United States Supreme Court precedent that
state bans on same-sex marriage do not violate the United States Constitution.];Lockyer v. City
and County of San Francisco, 95 P.3d 459, 503 (Cal. 2004) (Dennard, J., concurring and
dissenting) [Indeed there is a decision of the United States Supreme Court, binding on all other
courts and public officials that a state law restricting marriage to opposite-sex couples does not
violate the federal Constitutions guarantees of equal protection and due process of law.].
Importantly, the United States District Court for the District of Puerto Rico has
determined thatBakeris binding in this same context. In Conde-Vidal v. Garcia-Padilla, supra,
the Court concluded that . . . plaintiffs constitutional claim challenging the Puerto Rico Civil
Codes recognition of opposite-gender marriage fail to present a substantial federal question, and
this Court must dismiss them. Id.at 6. According to the Court:
[t]he First Circuit expressly acknowledged a mere two years ago that
Baker remains binding precedent unless repudiated by subsequent
Supreme Court precedent. Massachusetts v. U.S. Dept. of Health and
Human Services, 682 F.3d 1, 8 (1st Cir. 2012). According to the First
Circuit,Bakerpresents the adoption of arguments that presume or rest on a
constitutional right to same-sex marriage.
Id.
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Indeed, in oral argument in Hollingsworth v. Perry, supra, Justice Scalia recognized
Baker v. Nelsonas a binding decision on the merits. He asked attorney Ted Olson the following:
Im curious when did it become unconstitutional to exclude [gay] . . .
couples from marriage? 1791, 1868, when the Fourteenth Amendment wasadopted? . . . [s]ome time after Baker [v. Nelson was decided in 1972],
where we said it didnt even raise a substantial federal question? When
when when did the law become this?
Transcript of Oral Argument, at 38,Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) (No. 12-144)
(quoting Justice Scalia). Thus, contrary to the Fourth Circuits disregard ofBakerinBostic, at
least one member of the Supreme Court does not appear to believe that Baker has been
abandoned by doctrinal developments. This resolution as to the continuing viability of
Baker as not raising a substantial federal question is for the Supreme Court, not the Fourth
Circuit nor this Court to determine.
Accordingly, the refusal of the Fourth Circuit in Bostic, to follow the directive of the
Supreme Court inBaker, based upon its own assessment of Supreme Court precedent, is contrary
toHicks,Agostini, as well as the Fourth Circuits own cases. As discussed above,Bosticignored
the well established prior panel rule, and ignored Hogge, requiring the courts of the Fourth
Circuit to adhere to summary rulings by the Supreme Court. The issue of bans upon same-sex
marriage has not yet been addressed by the Supreme Court except in Baker v. Nelsons dismissal
for want of a substantial federal question. All of the issues including Plaintiffs constitutional
claims here, were addressed by the Minnesota Supreme Court, were raised in the Baker
Jurisdictional Statement to the Supreme Court, and were thus resolved in Bakers summary
disposition. The impact of Loving v. Virginia, supra, upon the validity of same-sex marriage
was specifically raised to the Supreme Court, as were the Equal Protection and Due Process
claims. The Fourth Circuit panel was not free to disregardBaker, based upon its perception that
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Baker was outdated or not in step with subsequent precedent. Agostini, supra. Baker was
binding upon the Fourth Circuit and this Court as well. Thus, Bakeris entirely consistent with
the recognition of the long-standing domestic relations exception and the principles of
federalism applied in Newdow and Windsor. Indeed, as Wilkins emphasizes, domestic issues
intertwined with federal constitutional claims, such as gender discrimination, do not present a
federal question. Wilkins, 581 F.2d at 403-404.
Regardless of Bakers continuing viability, however, the overriding principles of
federalism, discussed above, require dismissal of this case. The core question in this case is the
status of a marriage. BothNewdowand Windsorstrongly militate in favor of this matter being
decided in the state courts, rather than this Court. Newdowand Windsorreinforce the principle
that domestic relations -- here the core determination of the status of marriage remains
within the province of the States, rather than with the federal courts. As Newdowemphasizes,
the prudent course is for the federal court to stay its hand rather than to reach out to resolve a
weighty question of federal constitutional law. 542 U.S. at 17. And, as Windsorstresses, [t]he
significance of state responsibilities for the definition and regulation of marriage dates to the
Nations beginning. 133 S.Ct. at 2691. According to the Supreme Court in Windsor, [t]he
definition of marriage is the foundation of the States broader authority to regulate the subject of
domestic relations with respect to the [p]rotection of offspring, property interests and the
enforcement of marital responsibilities. 133 S.Ct. at 2691. Windsorwas based upon federal
interference with New Yorks sovereign determination of the definition of marriage in that State.
Based upon these authorities, the Complaint should be dismissed. As the Court in
Newdowwell summarized, [d]omestic relations are preeminently matters of state law. 542 U.S.
at 12 (quoting Mansell v. Mansell, 490 U.S. 581, 587 (1989)). And, as the Fourth Circuit
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Also, as stated in in Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir.
2001):
Ex parte Youngrequires a special relation between the state officer sued and the
challenged statute to avoid the Eleventh Amendment's bar. Ex parte Young, 209U.S. at 157. General authority to enforce the laws of the state is not sufficient to
make government officials the proper parties to litigation challenging the law.
Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th
Cir.1996) (internal quotation marks omitted). Thus, [t]he mere fact that agovernor is under a general duty to enforce state laws does not make him a proper
defendant in every action attacking the constitutionality of a state statute. ShellOil Co. v. Noel, 608 F.2d 208, 211 (1st Cir.1979).
Here, although Governor Gilmore is under a general duty to enforce the laws of
Virginia by virtue of his position as the top official of the state's executive branch,
he lacks a specific duty to enforce the challenged statutes. Thus, we vacate thejudgment against him and remand with instructions that the district court dismiss
him as a defendant in this action. The fact that he has publicly endorsed and
defended the challenged statutes does not alter our analysis. The purpose ofallowing suit against state officials to enjoin their enforcement of an
unconstitutional statute is not aided by enjoining the actions of a state official not
directly involved in enforcing the subject statute.
TheEx parte Young exception to Eleventh Amendment immunity does not apply to either
defendant because they do not possess more than general authority to enforce the laws of the
State. Section 20-1-15 and art. XVII, 15 do not provide the Attorney General or the Governor
with any specific enforcement authority regarding those marriage provisions, nor do those
provisions even reference those officers or create any penal provisions for them to enforce. The
Attorney Generals general authority as the States chief prosecuting officer (S.C. Const. Art. V,
24;State v. Long, 406 S.C. 511, 753 S.E.2d 425 (2014) and as the chief law officer of the
State (State ex rel. Condon v. Hodges, 349 S.C. 232, 239, 562 S.E.2d 623, 627 (2002)) does not
give him proximity to and responsibility for the challenged state action so as to avoid the bar
of the immunity. McBurney, supra. Similarly, the Governors authority as chief Magistrate
(art. IV, 1) does not create for her a special relationship to the laws at issue and subject her to
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theEx Parte Young exception nor does any super.See Charleston Cnty. Sch. Dist. v. Harrell, 393
S.C. 552, 561, 713 S.E.2d 604, 609 (2011); 1F2 Waste Management, supra. Certainly, neither
Defendant has the authority to issue a marriage license under state law to anyone or to grant
recognition of marriages entered out-of-State. 20-1-230 (judge of probate or clerk of court
issues licenses).
A Virginia District Court, other than the one that consideredBostic, supra, recently relied
onMcBurney and Waste Management to reach a similar decision as to that states Governor in a
same-sex marriage case. Harris v. McDonnell, 988 F. Supp. 2d 603, 611 (W.D. Va. 2013). As
stated in that case, Virginia Governor's general supervisory authority over the Commonwealth's
executive branch does not constitute a special relation to the challenged same-sex marriage ban.
The Virginia Governor has insufficient proximity to and responsibility for Virginia's marriage
laws, and plaintiffs have not shown any involvement by the Governor in the enforcement of
these laws. Id.
Robicheaux v. Caldwell, 986 F. Supp. 2d 749, 752 (E.D. La. 2013), reconsideration
denied (Jan. 13, 2014), made a similar conclusion as to the Louisiana Attorney Generals
immunity. The Court found that [t]he Attorney General's sweeping responsibility to enforce the
laws of the State of Louisiana lacks the Ex parte Youngspecificity nexus between the Attorney
General and the alleged unconstitutional provisions that is essential to defeat sovereign
immunity.
2 Nothing in School District's complaint demonstrates a nexus between Governor or his
authority and Act 189. Instead, School District only alleges that the Governor's ample executivepowers render him an appropriate defendant in any suit where the constitutionality of a statute is
challenged. This is an insufficient reason to name the Governor as a party defendant. Id.
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These cases compel the same conclusion here. The Governor and the Attorney General
should be dismissed because they lack a special relation to the laws at issue so as to be subject to
the Ex Parte Young exception to immunity. They do not issue marriage licenses or enforce
license laws. Plaintiffs failed to sue any officials with such authority.
D
Plaintiffs Lack Standing To Sue the Defendants
For reasons similar to those discussed in the immunity section, supra, Plaintiffs lack
standing to sue the Defendants. As stated at an earlier stage of Oklahomas same-sex marriage
case:
Before we address the merits of [a] case, we must first determine whether the
federal district court, and likewise this court, has subject-matter jurisdiction overthe dispute.In re Aramark Leisure Serv's, 523 F.3d 1169, 1173 (10th Cir.2008).
Article III standing requires that a plaintiff allege an injury-in-fact that has a
causal connection to the defendant and is redressable by a favorable courtdecision. . . . as
Bishop v. Oklahoma, 333 F. App'x 361, 364 (10th Cir. 2009)(Bishop II); see also, Bishop
v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. Jan. 14, 2014).
In that case, the Tenth Circuit found a lack of standing of the Plaintiffs to sue the
Governor and the Attorney General regarding their claims:
Here, the Oklahoma officials' generalized duty to enforce state law, alone, is
insufficient to subject them to a suit challenging a constitutional amendment they
have no specific duty to enforce. See Women's Emergency Network v. Bush, 323F.3d 937, 949-50 (11th Cir.2003); see also Waste Mgm't. Holdings, Inc. v.
Gilmore, 252 F.3d 316, 330-31 (4th Cir.2001) (concluding governor's general
duty to enforce the laws of Virginia insufficient when he lacks a specific duty toenforce the challenged statutes); Okpalobi v. Foster, 244 F.3d 405, 422-25 (5th
Cir.2001) (en banc) (constitutional challenge to state tort statute against Governor
and Attorney General not viable under the Ex Parte Youngdoctrine because no
enforcement connection existed between Governor or Attorney General and thestatute in question); 1st Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108, 112-13,
116 (3d Cir.1993) (If we were to allow [plaintiffs] to join ... [the State officials]
in this lawsuit based on their general obligation to enforce the laws ..., we would
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quickly approach the nadir of the slippery slope; each state's high policy officials
would be subject to defend every suit challenging the constitutionality of any state
statute, no matter how attenuated his or her connection to it.).
The Couples claim they desire to be married but are prevented from doing so, or
they are married but the marriage is not recognized in Oklahoma. These claimsare simply not connected to the duties of the Attorney General or the Governor.
Marriage licenses are issued, fees collected, and the licenses recorded by the
district court clerks. SeeOkla. Stat. Ann. tit. 28, 31; Okla. Stat. Ann. tit. 43, 5.
[A] district court clerk is judicial personnel and is an arm of the court whoseduties are ministerial, except for those discretionary duties provided by statute. In
the performance of [a] clerk's ministerial functions, the court clerk is subject to
the control of the Supreme Court and the supervisory control that it has passeddown to the Administrative District Judge in the clerk's administrative district.
Speight v. Presley, 203 P.3d 173, 177 (Okla.2008). Because recognition of
marriages is within the administration of the judiciary, the executive branch of
Oklahoma's government has no authority to issue a marriage license or record amarriage. Moreover, even if the Attorney General planned to enforce the
misdemeanor penalty (a claim not made here), that enforcement would not be
aimed toward the Couples as the penalty only applies to the issuer of a marriagelicense to a same-sex couple. Thus, the alleged injury to the Couples could not be
caused by any action of the Oklahoma officials, nor would an injunction
(tellingly, not requested here) against them give the Couples the legal status theyseek. [footnote omitted]
Bishop II dismissed the claims against the Oklahoma Governor and Attorney General due to
lack of standing. Just as the plaintiffs in that case had no standing to sue the Oklahoman
Governor and Attorney General due to their lack of enforcement authority as to same-sex
marriage bans, the instant Plaintiffs lack standing to sue Governor Haley and Attorney General
Wilson. This suit should be dismissed against them. Bishop II. 2F3
3Kitchen v. Herbert,755 F.3d 1193, 1203 (10th Cir. 2014) reached a different conclusion as to
the Utah Governor and Attorney General, but is readily distinguishable from the instant case.The Court found that the Utah Governor and Attorney General had explicitly taken the position
. . . that they have ample authority to ensure that the Salt Lake County Clerk return[s] to her
former practice of limiting marriage licenses to man-woman couples in compliance with Utah
law. Id. 755 F. 3d at 1202. South Carolinas Attorney General and Governor do not have suchauthority over our Probate Judges who issue licenses and this action should be dismissed as to
them.
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Although the standing problems for Plaintiffs, as parties, is that they cannot sue these
defendants, they also lack standing to assert the claims of third parties such as other same-sex
couples and children of such relationships. In order to maintain third-party standing, a plaintiff
must establish the following three requirements: (1) an injury-in-fact; (2) a close relationship
between the plaintiff and the person whose right is being asserted; and (3) a hindrance to the
third party's ability to protect his or her own interests. Miller v. MontgomeryCnty., Md., 458 F.
App'x 304, 310 (4th Cir. 2011). To the extent that Plaintiffs attempt to make claims for other
same-sex couples and children of such relationships, they fail to meet these requirements for
third-party standing, and they have not sought to bring a class action.
E
This Court Should Also Abstain Under Younger v. Harris
Younger v. Harris, 401 U.S. 37 (1971) and its progeny also support abstention because
State proceedings are ongoing. Although the Supreme Court has issued its above discussed
Order in State v. Condon, the proceeding is pending to the extent that Judge Condon and all other
probate judges are directed not to issue marriage licenses pending a Bradacs decision and all
state courts are directed not to issue marriage licenses unless otherwise ordered by the
Supreme Court. Therefore, the Supreme Court allows for the possibility that it might issue other
orders, and the direction to Probate Judges is tied to theBradacs case, not the instant case.
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 10-11 (1987) makes clear, as follows, that
Younger abstention may and should be applied to support abstention as to ongoing civil
proceedings:
The courts below should have abstained under the principles of federalismenunciated in Younger v. Harris . . . . Both the District Court and the Court of
Appeals failed to recognize the significant interests harmed by their
unprecedented intrusion into the Texas judicial system. Similarly, neither of those
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courts applied the appropriate standard in determining whether adequate relief
was available in the Texas courts.
The first ground for the Younger decision was the basic doctrine of equity
jurisprudence that courts of equity should not act, and particularly should not act
to restrain a criminal prosecution, when the moving party has an adequate remedyat law. Id., at 43, 91 S.Ct. at 750. The Court also offered a second explanation
for its decision:
This underlying reason ... is reinforced by an even more vitalconsideration, the notion of comity, that is, a proper respect for
state functions, a recognition of the fact that the entire country is
made up of a Union of separate state governments, and acontinuance of the belief that the National Government will fare
best if the States and their institutions are left free to perform their
separate functions in their separate ways.... The concept does not
mean blind deference to States' Rights' any more than it meanscentralization of control over every important issue in our National
Government and its courts. The Framers rejected both these
courses. What the concept does represent is a system in whichthere is sensitivity to the legitimate interests of both State and
National Governments, and in which the National Government,
anxious though it may be to vindicate and protect federal rightsand federal interests, always endeavors to do so in ways that will
not unduly interfere with the legitimate activities of the States.
Id., at 44, 91 S.Ct. at 750.
This concern mandates application of Younger abstention not only when the
pending state proceedings are criminal, but also when certain civil proceedingsare pending, if the State's interests in the proceeding are so important that exercise
of the federal judicial power would disregard the comity between the States and
the National Government.E.g., Huffman v. Pursue, Ltd.,420 U.S. 592, 603605,
(1975).
As in Pennzoil, supra, the instant case represents an unprecedented intrusion into [our states]
judicial system. Therefore, this Court should abstain from proceeding with this case.
F
As a Matter of Comity, This Court Should Decline To Consider This Case
Because A Prior Federal Case Is Pending
The first-to-file rule is a well-established doctrine of federal comity. The rule was
first recognized by the United States Supreme Court in Smith v. McIver, 22 U.S.
(9 Wheat.) 532, 6 L.Ed. 152 (1824). There, the Supreme Court stated that [i]n all
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cases of concurrent jurisdiction, the court which first has possession of the subject
must decide it. Id. at 534; see also American Modern Home Ins. v. InsuredAccounts Co., Inc., 704 F.Supp. 128, 129 (S.D.Ohio 1988) (quoting same). Therule since has been clarified and applied in cases involving concurrent federal
jurisdiction. See E.E.O.C. v. University of Pennsylvania, 850 F.2d 969, 972 (3rd
Cir.), cert. granted in part, 488 U.S. 992 (1988).The first-to-file rule has evolvedinto a mechanism used to promote judicial efficiency. See In re American Medical
Systems, Inc., 75 F.3d 1069, 1088 (6th Cir.1996) ( Although there is no precise
rule that, as between federal district courts, one court should defer to the other,
the general principle as to avoid duplicative litigation. ) (citations omitted);BarberGreene Co. v. BlawKnox Co., 239 F.2d 774, 778 (6th Cir.1957)
(describing that the first court to receive filing should proceed with case to avoid
confusion and uncertainty); ParkerHannifin Corp. v. Samuel Moore & Co.,436F.Supp. 498, 501 (N.D.Ohio 1977) (reiterating that primary jurisdiction attaches
in the forum where the action is first instituted) (citations omitted).12 The rule
provides that when identical suits are pending in two courts, the court in which
the first suit was filed should generally proceed to judgment. In re Burley, 738F.2d 981, 988 (9th Cir.1984). Generally, courts should invoke the rule when two
suits involving substantially the same parties and purpose have been filed in a
concurrent jurisdiction. BarberGreene Co., 239 F.2d at 778 (citation omitted).However, the same party and same issue is not an absolute requirement. [A]
precise identity of parties is simply not required.EBW, Inc. v. Environ Products,
Inc., No. 1:96CV144, 1996 WL 550020, at *3 (W.D.Mich. July 8, 1996).3Although courts should not apply the first-to-file rule too rigidly or mechanically,
the rule's importance should not be disregarded lightly. Church of Scientologyv. United States Dep't of the Army, 611 F.2d 738, 750 (9th Cir.1979). Notably,[t]he most basic aspect of the first to file rule is that it is discretionary. Alltrade,
Inc. v. Uniweld Products, Inc., 946 F.2d 622, 628 (9th Cir.1991). The decision
and the discretion belong to the district court.Id
Plating Res., Inc. v. UTI Corp., 47 F. Supp. 2d 899, 903 (N.D. Ohio 1999). Ordinarily, when
multiple suits are filed in different Federal courts upon the same factual issues, the first or prior
action is permitted to proceed to the exclusion of another subsequently filed. See Carbide &
Carbon Chemicals Corp. v. United States Industrial Chemicals, Inc., 140 F.2d 47, 49 (4th Cir.
1944). Allied-Gen. Nuclear Servs. v. Commonwealth Edison Co., 675 F.2d 610, 611, n. 1 (4th
Cir. 1982). See also, George Mason Univ. Found., Inc. v. Morris,No. 3:11-CV-848, 2013 WL
6449109, at *4 (E.D. Va. Dec. 9, 2013). As between federal district courts, however, though
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no precise rule has evolved, the general principle is to avoid duplicative litigation. Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).
Duplicative litigation should be avoided here and comity served by this Courts deferring
a ruling in the instant case until the Bradacs case is decided. Bradacswill be ready for a ruling
on the dispositive motions in that case before the instant case is ready for such a decision. All
filings should be completed tomorrow regarding the pending Bradacs motions. Under the
October 14, 2014 scheduling order, the Court may decide those motions without a hearing.
Bradacs, 3:13-cv-02351, Document No. 71. The instant case is not as far along and filings will
be completed this week only as to the preliminary injunction (answer or other responsive motion
due November 7). The same substantive constitutional issues are present in both cases and the
fact that Bradacs includes a claim for recognition of an out-of-state marriage license is not a
distinction that is likely to produce a different substantive ruling or one not applicable to the
instant parties. That the plaintiffs are not the same does not prevent deference, and this Court
should proceed to stay this proceed or defer a ruling pending the Bradacs outcome. As noted
above, the State Supreme Court has stated that probate judges are [t]hereby directed not to issue
marriage licenses to same-sex couples pending a decision by the Federal District Court in
Bradacs.
II
PRELIMINARY INJUNCTION STANDARD
A preliminary injunction is an extraordinary and drastic remedy and isnever awarded as of right. Munaf v. Geren, 553 U.S. 674, 690 (2008). The
purpose of a preliminary injunction is merely to preserve the relative positions of
the parties until a trial on the merits can be held. Univ. of Tex. v. Camenisch,451
U.S. 390, 395 (1981). As the Fourth Circuit explained in In re Microsoft Corp.
Antitrust Litigation,333 F.3d 517, 525 (4th Cir.2003), [t]he traditional office of
a preliminary injunction is to protect the status quo and to prevent irreparable
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harm during the pendency of a lawsuit ultimately to preserve the court's ability to
render a meaningful judgment on the merits.
A moving party must establish the presence of the following: (1) a clear
showing that it will likely succeed on the merits; (2) a clear showing that it is
likely to be irreparably harmed absent preliminary relief; (3) the balance ofequities tips in favor of the moving party; and (4) a preliminary injunction is in
the public interest. Real Truth About Obama, Inc. v. Fed. Election Comm., 575
F.3d 342, 34647 (4th Cir.2009); W. Va. Assoc. of Club Owners & FraternalServs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir.2009). These standardsfollow the newly articulated requirements for preliminary injunction set forth by
the Supreme Court in Winter v. Natural Resources Defense Council, Inc., 555
U.S. 7, 2223 (2008). Unlike the Fourth Circuit's previous balance of hardshiptest set forth inBlackwelder Furniture Co. v. Seilig Manufacturing Co.,550 F.2d
189, 196 (4th Cir.1977), the moving party seeking a preliminary injunction must
establish the presence of each of the four requirements, satisfying the standards of
each as articulated.Real Truth About Obama, Inc.,575 F.3d at 347.
United States v. S. Carolina,840 F. Supp. 2d 898, 914 (D.S.C. 2011) modified in part, 906 F.
Supp. 2d 463 (D.S.C. 2012) aff'd, 720 F.3d 518 (4th Cir. 2013)
A preliminary injunction is a drastic remedy, Bloodgood v. Garraghty, 783 F.2d 470,
475 (4th Cir.1986), which serves to maintain the status quo ante litem. Feller v. Brock, 802 F.2d
722, 727 (4th Cir.1986). The decision to grant or deny a preliminary injunction rests within the
sound discretion of the district court, and that decision will not be disturbed on appeal absent a
showing that the district court committed an abuse of its discretion. Fayetteville, Cumberland
Cnty. Black Democratic Caucus v. Cumberland Cnty., N.C.,884 F.2d 1388 (4th Cir. 1989).
Although Preliminary Injunctions have been issued in same-sex marriage cases, Plaintiffs
fail to show that they are entitled to an injunction for reasons discussed below. See, eg. Bostic v.
Rainey, 970 F. Supp. 2d 456, 474 (E.D. Va.) 3F4
4aff'd sub nom. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) cert. denied sub nom.
Rainey v. Bostic, No. 14-153, 2014 WL 3924685 (U.S. Oct. 6, 2014) and cert. denied, No. 14-225, 2014 WL 4230092 (U.S. Oct. 6, 2014) and cert. denied sub nom. McQuigg v. Bostic, No.
14-251, 2014 WL 4354536 (U.S. Oct. 6, 2014).
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III
PLAINTIFFS FAIL TO MAKE A CLEAR SHOWING THAT THEY WILL LIKELY
SUCCEED ON THE MERITS FOR A PRELIMINARY INJUNCTION
The grounds set forth in Argument I, supra, are dispositive of this case. They also
demonstrate that Plaintiffs cannot succeed on the merits of this case. In addition, the following
grounds also show that Plaintiffs should not succeed on the merits.
A
As to Issues ThatBosticaddressed,Bosticwas Wrongly Decided and the Defendants,
respectfully, argue against precedent to the Extent Necessary
[A] non-frivolous argument for a change in law is certainly an appropriate argument to
this Court. The Court, however, must follow the established precedent of this Circuit. United
States v. Williams, No. 4:12-CR-00969-RBH, 2014 WL 971749, at *5 (D.S.C. Mar. 12, 2014);
see also, Rule 11(b)(2), FRCP (Non-frivolous argument for modifying, or reversing existing
law or for establishing new law). As discussed above, under Fourth Circuit precedent,Baker v.
Nelson controls this Courts consideration of the merits of this case rather than the Bostic Panel
decision that overlooked that authority of their own Court. To the extent that, arguendo, Baker
does not apply, the Defendants Governor and Attorney General argue against the Bostic
precedent and seek to preserve those arguments for further review.
B
History Of Marriage Law /
Comparison of Current South Carolina and Virginia Law
1
Generally
For countless centuries, marriage has required both sexesuniting a man and a woman
as husband and wife to be father and mother to any children they produce. As David Hume
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explained, "[t]he long and helpless infancy of man requires the combination of parents for the
subsistence of their young." David Hume, An Enquiry Concerning the Principles of Morals, in
Essays and Treatises on Several Subjects 421 (London, Millar 1758). John Locke likewise
understood marriage as made by a voluntary Compact between Man and Woman; and tho its
chief End, [is] Procreation; yet it draws with it mutual Support and Assistance, and a
Communion of Interests too, as necessary not only to unite their Care and Affection, but also
necessary to their common Off-spring, wh