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8/9/2019 15-1186 - South Dakota Plaintiffs' Brief
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No. 15-1186
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
______________________JENNIE and NANCY ROSENBRAHN, et al.,
Plaintiffs-Appellees,
v.
DENNIS DAUGAARD, in his official capacity as South Dakota Governor, et al.,
Defendants-Appellants.
______________________
On Appeal from the United States District Court for the District of South Dakota
United States District Court Judge Karen E. Schreier | No. 14-CV-4081-KES
______________________
APPELLEES’ BRIEF
______________________
Joshua A. Newville Debra M. Voigt
Counsel of Record BURD AND VOIGT LAW OFFICE
MADIA LAW LLC 601 South Cliff Avenue, Ste A333 Washington Ave. N., #345 Sioux Falls, SD 57104
Minneapolis, Minnesota 55401 Tel: 605.332.4351
Tel: 612.349.2743 | Fax: 612.235.3357 [email protected]
Shannon P. Minter Kylie M. Riggins
Christopher F. Stoll VIKEN AND R IGGINS LAW FIRM
NATIONAL CENTER FOR LESBIAN R IGHTS 4200 Beach Drive, #4
870 Market St., #370 Rapid City, SD 57702San Francisco, California 94102 Tel: 605.721.7230
Tel: 415.392.6257 | Fax: 415.392.8442 [email protected]
Attorneys for Appellees
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SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT
Appellees adopt Appellants’ summary of the case and agree that this case
presents important issues warranting oral argument. In light of the exceptional
importance of the constitutional issues presented for review, and the severity of the
ongoing harms imposed upon same-sex couples and their families by South
Dakota’s marriage bans, Appellees respectfully request at least twenty minutes for
oral argument.
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CORPORATE DISCLOSURE STATEMENT
Appellees Jennie Rosenbrahn, Nancy Rosenbrahn, Jeremy Coller, Clay
Schweitzer, Lynn Serling-Swank, Monica Serling-Swank, Krystal Cosby, Kaitlynn
Hoerner, Barbara Wright, Ashley Wright, Greg Kniffen, and Mark Church are each
individual persons. None of the appellees are corporations; nor are they
subsidiaries or affiliates of a corporation. Upon information and belief, no publicly
traded corporation has a financial interest in the outcome of this appeal.
Dated: March 19, 2015 __/s/ Joshua A. Newville __
Joshua A. Newville
MADIA LAW LLC
333 Washington Ave. N., #345
Minneapolis, Minnesota 55401
Tel: 612.349.2743 | Fax: 612.235.3357
Counsel for Plaintiffs
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TABLE OF CONTENTS
SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT .................... i
CORPORATE DISCLOSURE STATEMENT ........................................................ ii
TABLE OF CONTENTS ........................................................................................ iii
TABLE OF AUTHORITIES ................................................................................... vi
STATEMENT OF JURISDICTION ........................................................................ 1
STATEMENT OF ISSUES ...................................................................................... 1
STATEMENT OF THE CASE ................................................................................ 1
I. THE PROCEDURAL HISTORY OF THIS CASE ......................................... 1
II. THE HISTORY OF THE CHALLENGED LAWS IN THIS CASE .............. 2
III. THE APPELLEES IN THIS CASE ................................................................ 3
SUMMARY OF THE ARGUMENT ....................................................................... 7
STANDARD OF REVIEW ...................................................................................... 9
ARGUMENT ............................................................................................................ 9
I. GOVERNMENT LAWS REGULATING MARRIAGE MUST COMPLY
WITH CONSTITUTIONAL PROTECTIONS. .................................................... 9
A. The Tenth Amendment Does Not Legitimate Discriminatory State Marriage
Schemes ............................................................................................................ 10
B. The Domestic Relations Exception Does Not Deprive This Court Of
Jurisdiction ........................................................................................................ 12
II. NEITHER BAKER NOR BRUNING RESOLVE THE QUESTIONS
PRESENTED BY THIS CASE, NOR, IN LIGHT OF INTERVENEING
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SUPREME COURT PRECEDENT, INCLUDING WINDSOR, PROVIDE A
BASIS FOR UPHOLDING SOUTH DAKOTA’S MARRIAGE BANS ........... 13
A. Baker v. Nelson Does Not Bar Plaintiffs’ Claims. ..................................... 14
B. Citizens v. Bruning Does Not Bar Plaintiffs’ Claims ................................. 17
III. SOUTH DAKOTA’S MARRIAGE BANS VIOLATE APPELLEES’
CONSTITUTIONAL GUARANTEE OF DUE PROCESS ................................ 22
A. The Constitutional Right To Marry Belongs To The Individual. ............... 22
B. Same-Sex Couples Share Equally In The Fundamental Right To Marry ... 24
C. Loving v. Virginia Supports Plaintiffs’ Claims .......................................... 24
D. Lawrence v. Texas and U.S. v. Windsor Support Plaintiffs’ Claims ......... 26
IV. SOUTH DAKOTA’S MARRIAGE BANS VIOLATE APPELLEES’
CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION. .................. 29
A. The Marriage Bans Explicitly and Purposefully Discriminate on the Basis
of Sexual Orientation. ....................................................................................... 30
B. The Marriage Bans Deny Plaintiffs Equal Protection Of The Laws On the
Basis Of Gender ................................................................................................ 31
C. South Dakota’s Marriage Bans Violate Equal Protection Under The
Heightened Scrutiny Required by Windsor ...................................................... 35
D. A Finding Of Animus Is Sufficient, But Not Necessary, To Find South
Dakota’s Marriage Bans And Anti-Recognition Laws Unconstitutional ......... 38
E. South Dakota’s Marriage Bans And Anti-Recognition Laws Cannot Survive
Traditional Rational Basis Review ................................................................... 43
1. “Promoting Heterosexual Procreation” .................................................... 43
2. “Proceeding With Caution And Saving Public Funds” ............................ 45
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3. “Deference To The Political Process” ...................................................... 47
V. SOUTH DAKOTA’S MARRIAGE BANS INTERFERE WITH THE
MARRIED PLAINTIFFS’ FUNDAMENTAL RIGHT TO REMAIN MARRIED
48
A. History of South Dakota’s Recognition Laws. ........................................... 49
B. South Dakota’s Anti-Recognition Laws Violate the Fundamental Right to
Stay Married And To Respect For Existing Marital Relationships .................. 52
C. South Dakota’s Anti-Recognition Laws Violate The Married Plaintiffs’
Right To Equal Protection Of The Laws. ......................................................... 54
CONCLUSION....................................................................................................... 56
CERTIFICATION OF WORD COUNT COMPLIANCE ..................................... 57
CERTIFICATION OF ELECTRONIC SUBMISSION & SERVICE ................... 58
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TABLE OF AUTHORITIES
CASES
Andrus ex rel. Andrus v. Arkansas, 197 F.3d 953 (8th Cir. 1999) ........................... 9Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ............................................................... 2
Baker v. Nelson, 409 U.S. 810 (1972) ............................................................. passim
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ................................................... 15
Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) ............................................ 8, 12, 47
Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) .......................... 42
Bond v. United States, 131 S. Ct. 2355 (2011) ....................................................... 10
Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014) ......................................... 47
Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) ......................................... 2, 11, 47
Bowers v. Hardwick, 478 U.S. 186 (1986) ....................................................... 24, 25
Califano v. Westcott, 443 U.S. 76 (1979) ............................................................... 35
Campaign for S. Equal. v. Bryant, 2014 WL 6680570 (S.D. Miss. Nov. 25, 2014)
.............................................................................................................................. 49
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) ......... passim
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ........................ 39
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) ...................................... 23
Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998) .............................................. 28
Craig v. Boren, 429 U.S. 190 (1976) ...................................................................... 21
DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014) ................................... 46
F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307 (1993) .......................................... 21Frontiero v. Richardson, 411 U.S. 677, 688 (1973) ............................................... 16
Garcia v. Garcia, 25 S.D. 645, 127 N.W. 586 (1910) ................................. 42, 50, 51
Ginters v. Frazier, 614 F. 3d 822 (8th Cir. 2010) ................................................... 21
Griswold v. Connecticut, 381 U.S. 479 (1965) .......................................... 23, 49, 54
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Hall v. Florida, 134 S. Ct. 1986 (2014) .................................................................. 10
Hicks v. Miranda, 422 U.S. 332 (1975) .................................................................. 15
Hodgson v. Minnesota, 497 U.S. 417 (1990) ......................................................... 24
In re Estate of Duval, 777 N.W.2d 380 (S.D. 2010) ............................................... 50
In re Lenherr’s Estate, 314 A.2d 255 (Pa. 1974) .................................................... 51
J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127 (1994) ............................................ 32
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.)………………………………..passim
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) ................... 11, 32, 43, 47
Latta v. Otter, 771 F.3d 456, 474 (9th Cir. 2014) ......................................... 2, 12, 20
Lawrence v. Texas, 539 U.S. 558 (2003) ........................................................ passim
Llapa-Sinchi v. Mukasey, 520 F.3d 897 (8th Cir. 2008) .......................................... 9
Loving v. Virginia, 388 U.S. 1 (1967) ............................................................. passim
M.L.B. v. S.L.J., 519 U.S. 102 (1996) .................................................................... 53
Madewell v. United States, 84 F. Supp. 329 (E.D. Tenn. 1949) ............................ 51
Mandel v. Bradley, 432 U.S. 173 (1977) ................................................................ 14
Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987) ................................................. 22
Novotny v. Tipp County, 664 F.3d 1173 (8th Cir. 2011) ......................................... 9
Orr v. Orr, 440 U.S. 268 (1979) ............................................................................. 35
Perry v. Brown, 725 F.3d 1140 (9th Cir. 2013) ...................................................... 25
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) .................... 25, 32
Planned Parenthood v. Casey, 505 U.S. 833 (1992) ............................................... 25
Plyler v. Doe, 457 U.S. 202 (1982) ........................................................................ 48
Powers v. Ohio, 499 U.S. 400 (1991) ..................................................................... 33
Reed v. Reed, 404 U.S. 71 (1971) .......................................................................... 35
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .................................................. 29, 53
Romer v. Evans, 517 U.S. 620 (1996) ............................................................. passim
SmithKline Bch. Corp. v. Abbott Lbs., 740 F.3d 471 (9th Cir. 2014) ....... 20, 21, 36
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Sosna v. Iowa, 419 U.S. 393 (1975) ....................................................................... 11
Stanton v. Stanton, 421 U.S. 7 (1975) .................................................................... 35
T.L. ex rel. Ingram v. United States, ...................................................................... 22
Turner v. Safley, 482 U.S. 78 (1987) .............................................................. passim
U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) ................................... 39
U.S. v. Virginia, 518 U.S. 515 (1996) .................................................................... 35
United States v. Windsor, 133 S. Ct. 2675 (2013)……………………………passim
Vill. of Ar. Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ........... 41, 42
Vill. Of Willowbrook v. Olech, 528 U.S. 562 (2000) ............................................ 43
W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) .......................................... 12
Washington v. Glucksberg, 521 U.S. 702 (1997) ............................................ passim
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) .................................. passim
Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir. 2008) ....................................... 20
Young v. Hayes, 218 F.3d 850 (8th Cir. 2000) ...................................................... 22
Zablocki v. Redhail, 434 U.S. 374 (1978) .............................................................. 26
STATUTES & STATE CONSTIUTIONAL PROVISIONS
S.D. Codified Laws § 25-5-3 .................................................................................... 6
S.D. Codified Laws § 25-5-7 .................................................................................... 6
S.D. Codified Laws § 25-7-30 .................................................................................. 6
S.D. Codified Laws § 25-1-1…………………………………………………...3, 31
S.D. Codified Laws § 25-1-38 ...................................................................... 3, 31, 52
S.D. Const. Art. XXI § 9…………………………………………………………. 31
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OTHER AUTHORITIES
Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the
U.S. House of Representatives, United States v. Windsor, 133 S. Ct. 2675 (2013)
(No. 12-307), 2013 WL 267026 .......................................................................... 38
Luther L. McDougal, III et al.,
American Conflicts Law 713 (5th ed. 2001) ....................................................... 51
William M. Richman & William L. Reynolds,
Understanding Conflict of Laws 398 (3d ed. 2002) ............................................ 51
U.S. CONSTITUTIONAL PROVISIONS
U.S. Const., Amend. XIV ................................................................................. 10, 30
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STATEMENT OF JURISDICTION
Because this matter is on appeal from final judgment by the United States
District Court for the District of South Dakota, this Court has jurisdiction pursuant
to Title 28 U.S.C. § 1291.
STATEMENT OF ISSUES
The issues presented in this case are whether the district court correctly
found that South Dakota laws that deny same-sex couples the rights to marry and
prohibit recognition of their lawful out-of-state marriages (hereinafter referred to
as South Dakota’s “marriage bans”) violate the Due Process and Equal Protections
Clauses of the Fourteenth Amendment to the United States Constitution.
United States v. Windsor, 133 S. Ct. 2675 (2013)
Lawrence v. Texas, 539 U.S. 558 (2003)
Romer v. Evans, 517 U.S. 620 (1996)
Loving v. Virginia, 388 U.S. 1 (1967)
STATEMENT OF THE CASE
I. THE PROCEDURAL HISTORY OF THIS CASE
Appellees adopt Appellants’ statement of procedural history for this case,
found at pages 3–5 of Appellants’ brief.
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II. THE HISTORY OF THE CHALLENGED LAWS IN THIS
CASE
In 1996, legislators in South Dakota introduced House Bill 1143, which
amended the definition of marriage under South Dakota law, adding the limitation
that marriage be only “between a man and a woman.” APP 266. 1 House Bill 1143
was passed by both houses of the South Dakota legislature and signed into law. Id.
This change was motivated, at least in part, by the prospect that Hawaii would
permit same-sex couples to marry following the Supreme Court of Hawaii’s
decision in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). See APP 065 (stating that
the legislation was necessary because of “events in Hawaii.”).
In 2000, legislators introduced House Bill 1163, which amended South
Dakota’s longstanding rule that legal marriages contracted in other states are
recognized and treated as valid in South Dakota as well. House Bill 1163 altered
that longstanding rule to provide that all valid out-of-state marriages will be
recognized “except a marriage contracted between two persons of the same
gender.” APP 267–268. House Bill 1163 was passed by both houses of the South
Dakota legislature and signed into law. Id.
In 2006, “Amendment C,” a measure that would add to the South Dakota
Constitution a provision prohibiting same-sex couples from marrying was
1 References to documents in the Joint Appendix are cited as “APP ___”;
References to individual district court docket entries are “Doc. __”;
References to Appellants’ Brief are “AB __”
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approved by both houses of the South Dakota legislature and placed on the 2006
general election ballot. See APP 066 (2006 Ballot Question Pamphlet). The
documentation that accompanied the 2006 ballot included the statement that
“marriage is a union between one man and one woman and that the State of South
Dakota should not recognize any other kind of ‘marriage.’” APP 066. On
November 7, 2006, the proposed amendment was approved by 52% of South
Dakota voters and was adopted. S.D. SEC. OF STATE, Ballot Question Titles and
Election Returns 1890-2010, at 20, available at https://sdsos.gov/elections-
voting/assets/BallotQuestions1890-2010.pdf (last visited March 11, 2015).
Amendment C did not just ban marriage for same-sex couples; it also prohibited
the Legislature from allowing civil unions, domestic partnerships, or any other
kind of legal relationship between same-sex couples.
This action challenges the above-referenced laws, including South Dakota
Codified Laws § 25-1-1, SDCL § 25-1-38, and Article 21, § 9 of the South Dakota
Constitution, and any other provision of South Dakota law that precludes persons
from marrying or being afforded all of the benefits and obligations of marriage, or
that refuses or refuses to recognize an existing marriage, solely because the
individuals are of the same gender.
III. THE APPELLEES IN THIS CASE
Appellees Jennie and Nancy Rosenbrahn, Jeremy Coller and Clay
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Schweitzer, Lynn and Monica Serling-Swank, Krystal Cosby and Kaitlynn
Hoerner, Barbara and Ashley Wright, and Greg Kniffen and Mark Church are all
loving, committed, same-sex couples. See APP 122–134 ¶¶ 11-12, 19-20, 25, 30,
36, 42.
Krystal Cosby and Kaitlynn Hoerner wish to marry in South Dakota. APP
122–134 ¶¶ 34-35. They are similarly situated in all relevant respects to different-
sex couples who wish to marry in the State. But for the fact that they are same-sex
couples, they would be permitted to marry there.
Jennie and Nancy Rosenbrahn, Barbara and Ashley Wright, Greg Kniffen
and Mark Church, Jeremy Coller and Clay Schweitzer, and Lynn and Monica
Serling-Swank are legally married under the laws of other States. APP 122–134 ¶¶
12, 23, 27, 39, 43. They wish to have their marriages recognized in South Dakota.
APP 122–134 ¶¶ 18, 24, 28, 40, 44. They are similarly situated in all relevant
respects to different-sex couples whose validly contracted out-of-state marriages
are recognized in South Dakota. But for the fact that they are same-sex couples,
South Dakota would regard their marriages as valid in the State.
All Appellee couples are harmed by South Dakota’s refusal to allow them to
marry or to recognize their existing marriages. APP 122–134 ¶ ¶¶ 13-14, 16-18,
22, 24, 28-29, 33-34, 39-41, 44. They are denied the state law protections and
obligations that are accorded to different-sex married couples. Id. Krystal and
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Kaitlynn and their child are also denied all federal spousal protections and
obligations, and the married Plaintiffs are denied those federal spousal protections
and obligations that are reserved to couples whose marriages are recognized in
their state of residence.
Declarations of each of the Appellee couples are located in the Joint
Appendix at APP 067–116, describing their life experiences and their desire to
marry and create legally recognized families in their homes in South Dakota. These
Appellees are all active and contributing members of their respective communities,
who are entitled to enjoy the same fundamental rights as other members of the
community.
Appellees’ Declarations also describe some of the many burdens they have
faced due to their inability to marry. For example, Plaintiffs Barbara (“Barb”) and
Ashley Wright almost suffered a devastating harm as a result of the marriage bans.
Barb and Ashley were expecting a child after the commencement of this case in
Fall 2014. APP 122–134 ¶ 36. Under the law as it stood then (and stands now)
South Dakota refused to recognized, pursuant to South Dakota’s presumption of
legal parentage for children born to married couples. See S.D. Codified Laws. §§
25-5-3; 25-7-30; 25-5-7; see also APP 122–134 ¶ 36. And although adoption
would be unnecessary if Barb and Ashley’s marriage were recognized, under South
Dakota law, Barb was unable even to adopt the child as a stepparent. APP 122–134
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¶ 36. If not for having their baby—prematurely—in Minnesota, Barb and Ashley
would have been, and still could be, deprived of access to the same legal
protections of their parental relationship with their child that are available to other
married couples, for no other reason than that they are the same sex. Id.
Indeed, Plaintiffs Krystal Cosby and Kaitlynn Hoerner are also currently
experiencing these very harms, as their child was born in South Dakota in 2014.
They were crushed to learn that, because they are unable to marry, South Dakota
would not allow Kaitlynn to be listed as one of their daughter’s parents on the birth
certificate. APP 122–134 ¶ 33. The only option for the couple is go through the
onerous, expensive, and uncertain process of attempting to obtain an adoption to
allow Kaitlynn to be recognized as a legal parent of their child. Id.
The harms caused by the marriage bans affect virtually every aspect of the
plaintiffs’ lives, not only depriving them of critical legal protections, but subjecting
them to daily humiliations. For example, Plaintiffs Jennie and Nancy Rosenbrahn,
who are 73 and 69 years old, respectively, and have been together as a committed
couple for over 30 years, were finally able to marry in Minnesota on April 26,
2014. APP 122–134 ¶¶ 11-12. To celebrate their marriage, they decided to take the
married name “Rosenbrahn,” a combination of both of their maiden names. On
May 8, 2014, they went to obtain updated South Dakota driver’s licenses that
reflected the new last name appearing on their marriage certificate, as other
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married couples may do. APP 122–134 ¶ 17. Instead of receiving updated licenses,
they were handed a form stating that marriage certificates for same-sex couples
will not be accepted in support of a name change application. APP 077. This
treatment of Jennie and Nancy by the state reflects the humiliation and stigma
imposed on same-sex couples by South Dakota’s discriminatory marriage laws.
Every day, Appellees experience the daily stigma and injury of being treated as
inferior to other families and, for those raising children, of knowing that South
Dakota law teaches their children and grandchildren that their family is unworthy
of dignity and respect. APP 122–134 ¶¶ 13, 18, 24, 28-29, 33, 39, 44.
SUMMARY OF THE ARGUMENT
Like the Defense of Marriage Act (“DOMA”), South Dakota’s marriage
bans target same-sex couples and their families for discriminatory treatment on the
basis of gender and sexual orientation. As a recent and overwhelming majority of
state and federal courts have recognized, the United States Constitution does not
allow government—state or federal—to deny individuals in same-sex relationships
the liberty and equality guaranteed by the Fourteenth Amendment.2 Appellants
argue that principles of federalism and precedent excluding certain types of
2 See, e.g., Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); Baskin v. Bogan, 766 F.3d
648 (7th Cir.), cert denied, 135 S. Ct. 316 (2014); Bostic v. Schaefer, 760 F.3d 352
(4th Cir.), cert denied, 135 S. Ct. 308 (2014); Bishop v. Smith, 760 F.3d 1070
(10th Cir.), cert denied, 135 S. Ct. 271 (2014); Kitchen v. Herbert, 755 F.3d 1193
(10th Cir.), cert denied, 135 S. Ct. 265 (2014).
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domestic relations questions from consideration by federal courts legitimate the
challenged laws and deprive the Court of jurisdiction. But the Supreme Court has
never hesitated to invalidate state laws that unconstitutionally burden the right to
marry. As the Supreme Court confirmed in in Windsor, “state laws defining and
regulating marriage . . . must respect the constitutional rights of persons.” 133 S.
Ct. at 2691.
Appellants’ attempted reliance on Baker v. Nelson, 409 U.S. 810 (1972),
and Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) is
equally unavailing. Baker and Bruning cannot be reconciled with the Supreme
Court’s majority opinion in Windsor, which expressly held that discrimination
against same-sex couples with respect to marriage requires “careful consideration.”
Windsor, 133 S. Ct. at 2693.
A state violates the Due Process Clause both when it deprives individuals of
the right to marry and when it refuses to recognize a couple’s legal marriage
simply because the spouses are of the same sex. Such laws violate the Equal
Protection Clause as well, by singling out persons based on their sexual orientation
and gender in order to exclude them from legal protection. Like the federal law
struck down in Windsor, such laws are based on disapproval of gay and lesbian
persons rather than on a legitimate governmental interest. None of the asserted
rationales for South Dakota’s marriage bans can survive even rational basis
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review—much less the heightened levels of scrutiny required by binding Supreme
Court precedent.
STANDARD OF REVIEW
On appeal, this Court reviews, de novo, both a district court’s grant of
summary judgment and a denial of a motion to dismiss. Novotny v. Tipp County,
664 F.3d 1173, 1176 (8th Cir. 2011); Andrus ex rel. Andrus v. Arkansas, 197 F.3d
953, 955 (8th Cir. 1999). Constitutional issues are also reviewed de novo. Llapa-
Sinchi v. Mukasey, 520 F.3d 897, 900 (8th Cir. 2008).
ARGUMENT
I. GOVERNMENT LAWS REGULATING MARRIAGE MUST
COMPLY WITH CONSTITUTIONAL PROTECTIONS.
Appellants argue that the district court erred by failing to hold that the Tenth
Amendment and the domestic relations exception deprives federal courts of
jurisdiction over challenges to South Dakota’s marriage ban. See AB 10–15.
Appellants base this argument primarily upon Windsor, which they interpret as
endorsing the view that states have exclusive authority over marriage. AB 12
(citing Windsor for the proposition that the Tenth Amendment reserves those
authorities [over marriage] entirely to the states.”). For the reasons explained
below, the district court properly held that state laws regulating marriage must
comport with constitutional guarantees of due process and equal protection and
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that neither principles of federalism nor the domestic relations exception deprive
federal courts of jurisdiction of this matter.
A.
The Tenth Amendment Does Not LegitimateDiscriminatory State Marriage Schemes
Federalism does not empower a State government to violate the individual
rights secured by the Fourteenth Amendment. See U.S. Const., Amend. XIV (“nor
shall any State deprive any person of life, liberty, or property, without due process
of law.”). “Rather, federalism secures to citizens the liberties that derive from the
diffusion of sovereign power.” New York v. United States, 505 U.S. 144, 181
(1992).
While the States may be laboratories for experimentation, their regulation of
domestic relations does not authorize them to disregard “the basic dignity the
Constitution protects.” Hall v. Florida, 134 S. Ct. 1986, 2001 (2014). Furthermore,
“[b]y denying any one government complete jurisdiction over all the concerns of
public life, federalism protects the liberty of the individual from arbitrary power.”
Bond v. United States, 131 S. Ct. 2355, 2364 (2011). Properly understood,
“[f]ederalism secures the freedom of the individual.” Id.
Appellants cite Windsor to supports their federalism argument; however,
“Windsor is actually detrimental to their position. Although the Court emphasizes
States’ traditional authority over marriage, it acknowledged that state laws defining
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and regulating marriage, of course, must respect the constitutional rights of
persons.” Bostic v. Schaefer, 760 F.3d 352, 378–379 (4th Cir. 2014) (internal
citations and quotations omitted). Thus, the “virtually exclusive province” of the
States to regulate domestic affairs is always “subject to those guarantees.”
Windsor, 133 S. Ct. 2675 at 2680 (quoting Sosna v. Iowa, 419 U.S. 393, 404
(1975) and citing Loving v. Virginia, 388 U.S. 1 (1967), as an example of state
marital regulation gone constitutionally awry).
For this reason, “the Supreme Court has not hesitated to invalidate state laws
pertaining to marriage whenever such a law intrudes on an individual's protected
realm of liberty.” Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1198 (D. Utah 2013)
aff'd, 755 F.3d 1193 (10th Cir. 2014) cert. denied, 135 S. Ct. 265 (2014).
Numerous courts addressing state marriage bans like those challenged here have
reaffirmed the unremarkable proposition that the State’ prerogatives are
subordinate to federal constitutional protections and have concluded that
“considerations of federalism cannot carry the day for defendants.” Latta v. Otter,
771 F.3d 456, 474 (9th Cir. 2014). As the Seventh Circuit held, that limitation is
definitional of our constitutional democracy: “Minorities trampled on by the
democratic process have recourse to the courts; the recourse is called constitutional
law.” Baskin v. Bogan, 766 F.3d 648, 671 (7th Cir. 2014) cert. denied, 135 S. Ct.
316 (2014) and cert. denied sub nom. Walker v. Wolf, 135 S. Ct. 316 (2014).
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Appellants’ contention that a 52% majority of South Dakota voters and their
elected representatives enacted the statutory and constitutional bans at question in
this litigation, AB 35, falters for the same reasons. “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 vote; they depend on the outcome of
no elections.” W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).
B. The Domestic Relations Exception Does Not Deprive This
Court Of Jurisdiction
Because this matter arises under the United States Constitution and Title 42
U.S.C. § 1983, the district court had federal question jurisdiction pursuant to 28
U.S.C. § 1331. Appellants’ argue that there is a “domestic relations exception” to
such jurisdiction that the district court failed to apply. AB 13–15. Both the
Supreme Court and the Eighth Circuit have made clear, however, that such an
exception applies only to diversity jurisdiction and “covers only a narrow range of
domestic relations issues” including “divorce, alimony, and child custody decrees.”
Marshall v. Marshall, 547 U.S. 293, 307–308 (2006) (citing Ankenbrandt v.
Richards, 504 U.S. 689, 703–704 (1992)) (internal quotations and citations
omitted); United States v. Crawford, 115 F.3d 1397, 1401–02 (8th Cir. 1997)
(same).
Without any citation or support of any kind, Appellants assert that “[t]here is
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no question that marriage falls into the ‘domestic relations’ category; indeed, it is
the preceding condition that leads to divorce, alimony, and child support.
Accordingly, the district court erred in asserting jurisdiction over Plaintiffs’
claims.” AB15. Essentially, Appellants’ argument is that, simply because this case
arises in the context of marriage, it must be a purely domestic-relations issue
covered by the domestic-relations exception to federal diversity jurisdiction. But,
that argument simply cannot be squared with the Supreme Court’s history of
striking down state marriage laws that unconstitutionally burden or deny the right
to marry. See, e.g., Loving, 388 U.S. 1; Zablocki v. Redhail, 434 U.S. 374 (1978);
Turner v. Safley, 482 U.S. 78 (1987).
Neither principles of federalism nor the domestic relations exception
legitimate South Dakota’s marriage bans. Whatever authority the federal system
confers on the States to regulate marriage, and whatever authority states enact via
popular vote, it must be exercised within the constitutional limits imposed by the
Fourteenth Amendment.
II. NEITHER BAKER NOR BRUNING RESOLVE THE
QUESTIONS PRESENTED BY THIS CASE, NOR, IN LIGHT
OF INTERVENEING SUPREME COURT PRECEDENT,INCLUDING WINDSOR, PROVIDE A BASIS FOR
UPHOLDING SOUTH DAKOTA’S MARRIAGE BANS
Neither Baker nor Bruning resolve the constitutional questions presented by
this case. Moreover, in light of Windsor and other intervening Supreme Court case
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law, neither can legitimate the challenged marriage bans and anti-recognition laws
in light of intervening Supreme Court precedent, including Windsor. In particular,
Windsor made clear that laws that discriminate against same-sex couples must be
given at least “careful consideration” and confirmed the Supreme Court’s prior
recognition that same-sex couples have a constitutionally protected right to enter
into intimate relationships and that such relationships are entitled to equal dignity.
A. Baker v. Nelson Does Not Bar Plaintiffs’ Claims.
Baker does not control here because this case does not involve “the precise
issues presented and necessarily decided” in Baker. Mandel v. Bradley, 432 U.S.
173, 176 (1977). At the time Baker was decided, same-sex couples were not
permitted to marry in any state, and no state had enacted a law denying recognition
to same-sex couples married in other jurisdictions. Therefore, Baker did not
address the constitutionality of measures like South Dakota’s anti-recognition
laws.
Further, unlike the marriage bans at issue here, the Minnesota law at issue in
Baker lacked “an express statutory prohibition against same-sex marriages.” Baker
v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971). In contrast, South Dakota’s
marriage bans clearly, unequivocally, and intentionally exclude same-sex couples
from marriage, and refuse to recognize valid marriages between people of the same
sex entered into in other jurisdictions. A law of this kind “raise[s] the inevitable
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inference that the disadvantage imposed is born of animosity toward the class of
persons affected.” Romer, 517 U.S. at 624. The Baker court did not have occasion
to consider the issues raised by such a law, and thus does not preclude the district
court from having doing so, nor preclude this Court from doing so now. Appellants
acknowledge that the Supreme Court, in Hicks v. Miranda, 422 U.S. 332 (1975),
states that, “if the Court has branded a question as unsubstantial, it remains so
except when doctrinal developments indicate otherwise[.]” Id. at 344 (emphasis
added). See AB 17. To say that intervening doctrinal developments have limited
Baker’s precedential effect regarding the issues in this case would be an
understatement.
First, the year after Baker was decided, the Supreme Court held that
classifications based on sex must, like race and national origin, be subjected to
heightened judicial scrutiny. See Frontiero v. Richardson, 411 U.S. 677, 688
(1973); Craig v. Boren, 429 U.S. 190, 218 (1976) (Rehnquist, J. dissenting)
(identifying the Court’s scrutiny of sex-based classifications as “intermediate”).
The lower court’s holding in Baker appeared to rest on the premise that the
marriage ban was a classification based on sex. See Baker, 191 N.W.2d at 187
(distinguishing Loving and holding that “in commonsense 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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Second, in 1996, the Supreme Court in Romer held that a Colorado state
constitutional amendment imposing a disadvantage on gay and lesbian people and
“born of animosity” lacked any rational relation to a legitimate governmental
purpose. 517 U.S. at 634-35 (“We must conclude that Amendment 2 classifies
homosexuals not to further a proper legislative end but to make them unequal to
everyone else.”).
Third, in 2003, the Supreme Court decided Lawrence, concluding that two
adults of the same sex were free under the Constitution to engage in intimate
sexual conduct “in the confines of their homes and their own private lives and still
retain their dignity as free persons.” 539 U.S. at 567. The Court found that “[w]hen
sexuality finds overt expression in intimate conduct with another person, the
conduct can be but one element in a personal bond that is more enduring. The
liberty protected by the Constitution allows homosexual persons the right to make
this choice.” Id. Further, the Court held that “the fact that the governing majority in
a State has traditionally viewed a particular practice as immoral is not a sufficient
reason for upholding a law prohibiting the practice.” Id. at 577 (internal quotations
omitted).
Fourth, in 2013, the Supreme Court held in Windsor that the federal
government could not treat the state-sanctioned marriages of same-sex couples
differently from the state-sanctioned marriages of different-sex couples for
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purposes of federal protections and obligations based on marital status. 133 S. Ct.
at 2694. The Court found that this differential treatment “demeans the couple,
whose moral and sexual choices the Constitution protects.” Id.
Fifth, since Windsor, a significant majority of courts across the country to
consider the issues have found bans identical to South Dakota’s to be invalid. As
the Tenth Circuit concluded, “it is clear that doctrinal developments foreclose the
conclusion that the issue is, as Baker determined, wholly insubstantial.” Kitchen,
755 F.3d 1193, 1208.
In light of these dramatic doctrinal developments, it is not surprising that
most of the courts to consider the issue since Windsor have concluded that Baker
no longer has precedential force. See, e.g., Windsor v. United States, 699 F.3d 169,
178-79 (2d Cir. 2012) (“Even if Baker might have had resonance for Windsor’s
case in 1971, it does not today. . . . In the forty years after Baker, there have been
manifold changes to the Supreme Court’s equal protection jurisprudence.”), aff’d
133 S. Ct. 2675 (2013).
B. Citizens v. Bruning Does Not Bar Plaintiffs’ Claims
Appellants contend that the decision in Bruning, which rejected a challenge
to Nebraska’s state constitutional amendment targeting same-sex couples, requires
dismissal of Appellees’ claims. However, Bruning did not resolve the
constitutional questions at issue in this case and, in any event, its analysis has been
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superseded by the Supreme Court’s intervening decision in Windsor.
The plaintiffs in Bruning advanced narrow and distinct claims under
constitutional theories entirely different than those advanced by the Plaintiffs-
Appellees here. The Bruning plaintiffs claimed that Nebraska’s constitutional
amendment impermissibly “raise[d] an insurmountable political barrier to same-
sex couples” Bruning, 455 F.3d 859, 865. Unlike the claim asserted by the
Appellees here, the plaintiffs in Bruning did “not assert a right to marriage or
same-sex unions,” and thus did not assert the due process and equal protection
claims asserted by the Appellees, including the claim that same-sex couples have a
fundamental right to marry and that laws that exclude them from marriage
discriminate based on sexual orientation and gender require heightened equal
protection scrutiny. Id.
Also, unlike 10 of the 12 Appellees here, none of the plaintiffs in Bruning
were legally married same-sex couples seeking recognition of their marriages.
Therefore, the Court in Bruning did not consider or address the distinct equal
protection and due process claims brought by the married Plaintiffs-Appellees in
this case. In sum, the Bruning decision is neither binding nor instructive
concerning the due process and equal protection issues now before this Court, and
did not even touch upon the constitutional claims brought by the married
Appellees.
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Appellants’ reliance on Bruning also disregards crucial developments in the
Supreme Court’s equal protection and due process jurisprudence regarding same-
sex couples since Bruning was decided. Since Bruning was decided, the Supreme
Court held that laws that discriminate against same-sex couples in the context of
marriage require “careful consideration” and rejected the very same procreation-
related rationales considered by this Court in Bruning, concluding that they were
inadequate to justify treating same-sex couples and their children unequally. See
Windsor, 133 S. Ct. at 2696.
In 2006, this Court acknowledged that, in order to determine the appropriate
level of scrutiny for classifications based on sexual orientation, “the most relevant
precedents [were] murky.” Bruning, 455 F.3d at 865–66 (emphasis added). After
Windsor, however, it is plain that at least some form of heightened scrutiny is
required. For example, in 2008, the Ninth Circuit reached a similar conclusion to
the Bruning court in Witt v. Dep't of Air Force, 527 F.3d 806, 821 (9th Cir. 2008),
concluding that barring further pronouncement by the Supreme Court, it would
apply rational basis review to equal protection claims involving classifications
based on sexual orientation. Id. Then, in 2014, the Ninth Circuit recognized in
SmithKline v. Abbott Labs, 740 F.3d 471, 480 (9th Cir. 2014), that Windsor
significantly changed the landscape, and indeed was “dispositive of the question of
the appropriate level of scrutiny.” As the Ninth Circuit observed, “[i]n its words
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and its deed, Windsor established a level of scrutiny for classifications based on
sexual orientation that is unquestionably higher than rational basis review. In other
words, Windsor requires that heightened scrutiny be applied to equal protection
claims involving sexual orientation.” Id. at 481. The Ninth Circuit then went on to
strike down marriage bans and anti-recognition laws using the same heightened
scrutiny applied in Windsor. See Latta v Otter, 771 F.3d 456 (9th Cir. 2014).
As the Ninth Circuit correctly held, the Supreme Court’s analysis in
Windsor compels the conclusion that the Supreme Court applied a heightened form
of scrutiny. The most basic difference between the rational basis test and any form
of heightened scrutiny concerns which party in the constitutional litigation carries
the burden of persuasion regarding the constitutionality of a challenged law.3
Under rational basis review, the plaintiffs challenging a law have the burden of
showing that the law’s classification does not serve any legitimate governmental
interest. Under that test, courts consider post-hoc rationalizations and hypothetical
justifications. Heightened scrutiny of any form, on the other hand, puts the burden
on the government. As explained by the court in SmithKline, the Supreme Court in
Windsor applied heightened scrutiny because it did not presume that DOMA was
valid, but rather held that no justifications were sufficient to “overcome” the harms
it imposed. Windsor, 133 S. Ct. at 2696. Appellants’ repeated citations to the
3 Compare F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 314-15 (1993) with
Craig v. Boren, 429 U.S. 190, 197-99 (1976).
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dissenting opinions in Windsor improperly disregard what the Windsor majority
actually did, as well as the Court’s express statement that such laws require
“careful consideration.” See SmithKline, 740 F.3d at 480 (noting the importance of
“considering what the Court actually did” in determining the level of scrutiny
applied in Windsor.) (internal citations and quotations omitted).
It is well settled in this circuit that when the Supreme Court rules in a
manner that contravenes the Eighth Circuit’s analysis in a prior case, both Eighth
Circuit panels and district courts must follow the intervening Supreme Court
decision. Ginters v. Frazier, 614 F. 3d 822, 829 (8th Cir. 2010) (subsequent
Supreme Court rulings implicitly may abrogate established Eighth Circuit
analysis); T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960 (8th Cir. 2006)
(holding same and recognizing that it is “well settled”); Young v. Hayes, 218 F.3d
850 (8th Cir. 2000) (rebuking district court for simply applying appellate precedent
without taking into account intervening Supreme Court precedent announcing due
process right); Nichols v. Rysavy, 809 F.2d 1317, 1328 (8th Cir. 1987).
In light of this Court’s statement in Bruning that “the relevant precedents
[were] murky,” and in light of this its obligation to consider intervening decisions
of the Supreme Court, this Court should apply the same careful consideration
applied in Windsor to South Dakota’s marriage bans and anti-recognition laws.
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III. SOUTH DAKOTA’S MARRIAGE BANS VIOLATE
APPELLEES’ CONSTITUTIONAL GUARANTEE OF DUE
PROCESS
The Due Process Clause of the Fourteenth Amendment protects individuals
from arbitrary governmental intrusion into fundamental rights. Washington v.
Glucksberg, 521 U.S. 702, 719-20 (1997). Under that guarantee, when government
burdens the exercise of a right deemed to be fundamental, the government must
show that the intrusion “is supported by sufficiently important state interests and is
closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388. South
Dakota’s marriage bans do not comport with these requirements. They deprive
Appellees and other same-sex couples of the fundamental right to marry without
serving any legitimate, much less sufficiently important, state interests.
A. The Constitutional Right To Marry Belongs To The
Individual.
It is beyond dispute that the freedom to marry is a fundamental right
protected by the Due Process Clause. See, e.g., Turner v. Safley, 482 U.S. 78, 95
(1987) (“[T]he decision to marry is a fundamental right,” and marriage is an
“expression[] of emotional support and public commitment.”); Zablocki, 434 U.S.
at 384 (“The right to marry is of fundamental importance for all individuals.”);
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (“This Court has
long recognized that freedom of personal choice in matters of marriage and family
life is one of the liberties protected by the Due Process Clause of the Fourteenth
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Amendment.”); Loving, 388 U.S. at 12 (“The freedom to marry has long been
recognized as one of the vital personal rights essential to the orderly pursuit of
happiness by free men.”); Griswold v. Connecticut, 381 U.S. 479, 486 (1965)
(“Marriage is a coming together for better or for worse, hopefully enduring, and
intimate to the degree of being sacred. It is an association that promotes a way of
life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not
commercial or social projects. Yet it is an association for as noble a purpose as any
involved in our prior decisions.”).
While states have a legitimate interest in regulating and promoting marriage,
the fundamental right to choose one’s spouse belongs to the individual. “[T]he
regulation of constitutionally protected decisions, such as where a person shall
reside or whom he or she shall marry, must be predicated on legitimate state
concerns other than disagreement with the choice the individual has made.”
Hodgson v. Minnesota, 497 U.S. 417, 435 (1990). South Dakota’s marriage bans
impermissibly deprive Appellees of that protected choice, denying them the
fundamental right to marry the person with whom each has chosen to build a life, a
home, and a family.
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B. Same-Sex Couples Share Equally In The Fundamental
Right To Marry
Appellees seek to exercise the same fundamental right to marry that all
individuals enjoy, not recognition of a new right to “same-sex marriage.”
Appellants’ attempt to frame Appellees’ case as advocating for a new fundamental
right to marry someone of the same sex misses the point of the Supreme Court’s
marriage jurisprudence. Indeed, the argument that same-sex couples seek to
exercise a “new” right rather than the same right historically exercised by others
makes the same mistake that the Supreme Court made in Bowers v. Hardwick, 478
U.S. 186 (1986), and corrected in Lawrence. In a challenge by a gay man to
Georgia’s sodomy statute, the Bowers Court recast the right at stake from a right,
shared by all adults, to consensual intimacy with the person of one’s choice, to a
claimed “fundamental right” of “homosexuals to engage in sodomy.” Lawrence,
539 U.S. at 566-67 (quoting Bowers, 478 U.S. at 190). In overturning Bowers, the
Lawrence Court held that its constricted framing of the issue in Bowers “fail[ed] to
appreciate the extent of the liberty at stake,” Lawrence, 539 U.S. at 567. The same
is true of Appellants’ improper description of the asserted liberty interest here.
C.
Loving v. Virginia Supports Plaintiffs’ Claims
While it is true that the Supreme Court “protects those fundamental rights
and liberties that are, objectively, deeply rooted in this Nation’s history and
tradition . . . and implicit in the concept of ordered liberty,” Glucksberg, 521 U.S.
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at 720-21 (internal quotations and citations omitted), the Supreme Court has not
limited the scope of such rights based on historical patterns of discrimination.
In Loving, the court did not defer to the historical exclusion of mixed-race
couples from marriage. “[N]either history nor tradition could save a law
prohibiting miscegenation from constitutional attack.” Lawrence v. Texas, 539
U.S. 558, 577 (2003) (internal quotations and citations omitted). “Instead, the
Court recognized that race restrictions, despite their historical prevalence, stood in
stark contrast to the concepts of liberty and choice inherent in the right to marry.”
Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 992 (N.D. Cal. 2010), appeal
dismissed sub nom. Perry v. Brown, 725 F.3d 1140 (9th Cir. 2013). See also
Planned Parenthood v. Casey, 505 U.S. 833, 847–48 (1992) (“Interracial marriage
was illegal in most States in the 19th century, but the Court was no doubt correct in
finding it to be an aspect of liberty protected against state interference by the
substantive component of the Due Process Clause”).
Appellants misconstrue Loving, arguing that “[t]he district court’s reliance
on Loving v. Virginia, 388 U.S. 1 (1967), is misplaced,” and that “Loving is not
applicable here because it addressed a racial restriction, not the fundamental right
to marriage.” AB 25. However, the Supreme Court itself has explicitly rejected this
notion. Zablocki, 434 U.S. at 384. Indeed, the Supreme Court has never defined the
right to marry by reference to those permitted to exercise that right. The Supreme
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Court’s decisions address “the fundamental right to marry,” see Loving, 388 U.S.
at 12, Turner, 482 U.S. at 94-96, Zablocki, 434 U.S. at 383–86—not “the right to
interracial marriage,” “the right to inmate marriage,” or “the right of people owing
child support to marry.” Kitchen 755 F.3d 1193, 1211.
D. Lawrence v. Texas and U.S. v. Windsor Support Plaintiffs’
Claims
Similarly, the Supreme Court’s jurisprudence on sexual orientation has
consistently invalidated laws that discriminate against same-sex couples and has
confirmed that same-sex relationships are entitled to equal protection under the
law. In Lawrence v. Texas, 539 U.S. at 558, the Supreme Court held that lesbian
and gay people have the same protected liberty and privacy interests in their
intimate personal relationships as heterosexual people. Id. at 578. The Court
explained that decisions about such relationships “‘involv[e] the most intimate and
personal choices a person may make in a lifetime, choices central to personal
dignity and autonomy,’” and that “[p]ersons in a homosexual relationship may
seek autonomy for these purposes, just as heterosexual persons do.” Id. at 574
(citation omitted).
In Windsor, the Court powerfully reaffirmed the “equal dignity” of same-sex
couples’ relationships in the context of federal recognition of marriages, noting
that the right to intimacy recognized in Lawrence “can form ‘but one element in a
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personal bond that is more enduring.’” Windsor, 133 S. Ct. at 2693, 2692 (quoting
Lawrence, 539 U.S. at 567). Appellants misconstrue Windsor, arguing that “[t]he
Windsor holding was based on federalism,” and that it “specifically acknowledged
the fundamental nature of marriage, in fact, was its heterosexual nature: ‘the
limitation of lawful marriage to heterosexual couples . . . for centuries had been
deemed both necessary and fundamental.’” AB 26–27 (quoting Windsor, 133 S.
Ct. at 2689) (emphasis in original). The complete sentence from which Appellants
extract their quote reads: “The limitation of lawful marriage to heterosexual
couples, which for centuries had been deemed both necessary and fundamental,
came to be seen in New York and certain other States as an unjust exclusion.”
Windsor, 133 S. Ct. at 2689 (emphasis added). While the question of whether
same-sex couples have the right to marry was not before the Court in Windsor, the
Courts’ analysis strongly suggests that South Dakota’s exclusion of same-sex
couples from the freedom to marry burdens their right to due process, just as did
the federal government’s refusal to recognize the lawful marriage of same-sex
couples under DOMA. Indeed, the Supreme Court has made clear that “history and
tradition are the starting point but not in all cases the ending point of the
substantive due process inquiry,” Lawrence v. Texas, 539 U.S. 558, 572 (2003)
(quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 857 (1998)), and “times can
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blind us to certain truths and later generations can see that laws once thought
necessary and proper in fact serve only to oppress.” Id. at 579.
Like the federal Defense of Marriage Act, South Dakota’s bans burden the
lives of same-sex couples “by reason of government decree, in visible and public
ways . . . from the mundane to the profound,” and make “it even more difficult for
the children to understand the integrity and closeness of their own family and its
concord with other families in their community and in their daily lives.” Windsor,
133 S. Ct. at 2694. The bans “also bring [. . . ] financial harm to children of same-
sex couples,” id. at 2695, by denying their families a multitude of benefits that the
State and federal governments offer to spouses and their children.
Moreover, excluding the Appellee couples and other South Dakota same-sex
couples from marriage undermines the core constitutional values and principles
that underlie the fundamental right to marry. The freedom to marry is protected by
the Constitution precisely because the intimate relationships a person forms, and
the decision whether to formalize such relationships through marriage, implicate
deeply held personal beliefs and core values. Roberts v. U.S. Jaycees, 468 U.S.
609, 619-620 (1984). Permitting the government, rather than individuals, to make
such decisions about who can marry imposes an intolerable burden on individual
dignity and self-determination.
As stated in the Complaint and in the lower court declarations, Appellees
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wish to exercise that fundamental freedom for the same reasons different-sex
couples seek it, including the stability and protection that it will bring to their
children. APP 008–055, 067–116. They want their children and grandchildren to
know that their family has the same status and recognition that other families
enjoy. Two of the Appellee couples are currently raising children, as are many
other same-sex couples across South Dakota. Some of the Appellee couples,
including the Rosenbrahns, have grandchildren. Each Appellee couple has
demonstrated their commitment to one another, built stable families together, and
contributed to their communities, and they yearn to participate in this deeply
valued and cherished institution, which confers important legal rights and
obligations. They seek to be treated as equal, respected, and participating members
of society who—like others—are able to marry the person of their choice.
IV. SOUTH DAKOTA’S MARRIAGE BANS VIOLATE
APPELLEES’ CONSTITUTIONAL GUARANTEE OF EQUAL
PROTECTION.
The Equal Protection Clause of the Fourteenth Amendment provides that
“[n]o State . . . [shall] deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. Amend. XIV, § 1. In addition to violating the
Due Process clause, South Dakota’s marriage bans also violate the Equal
Protection Clause because they discriminate on the basis of sexual orientation and,
independently, because they discriminate on the basis of gender both by classifying
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individuals based on their gender and by subjecting individuals to impermissible
sex stereotyping.
A.
The Marriage Bans Explicitly and PurposefullyDiscriminate on the Basis of Sexual Orientation.
Under Windsor, laws that purposefully disadvantage same-sex couples are
subject to “careful consideration” and must be closely examined to determine
whether any legitimate purpose overcomes the harm imposed on such couples and
their children. Windsor, 133 S. Ct. at 2693. In other words, Windsor requires that
heightened scrutiny be applied to laws that purposefully discriminate on the basis
of sexual orientation.
Laws that restrict marriage or marriage recognition to opposite-sex couples
purposefully discriminate based on sexual orientation, as the U.S. Supreme Court
and numerous other courts have recognized. See Windsor, 133 S. Ct. at 2693
(noting that DOMA’s discrimination against married same-sex couples reflects
“disapproval of homosexuality”); Windsor v. United States, 699 F.3d 169, 181 (2d
Cir. 2012) (analyzing DOMA as discriminating against gay and lesbian people).
Here, on their face, South Dakota’s marriage bans intentionally single out
same-sex couples for adverse treatment on the basis of sexual orientation. The bans
state:
1) “Only marriage between a man and a woman shall
be valid or recognized in South Dakota. The
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uniting of two or more persons in a civil union,
domestic partnership, or other quasi-marital
relationship shall not be valid or recognized in
South Dakota.” S.D. Const. Art. XXI, § 9;
2)
“Marriage is a personal relation, between a man
and a woman, arising out of a civil contract to
which the consent of the parties capable of making
it is necessary. Consent alone does not constitute a
marriage; it must be followed by a solemnization.”
S.D. Codified Laws § 25-1-1; and,
3) “Any marriage contracted outside the jurisdiction
of this state, except a marriage contracted between
two persons of the same gender, which is valid bythe laws of the jurisdiction in which such marriage
was contracted, is valid in this state.” S.D.
Codified Laws § 25-1-38
The marriage bans further codify the second-class status of same-sex
couples by titling S.D. Codified Laws § 25-1-38 as, “Validity of marriages
contracted outside state--Same-sex marriages excluded .” (emphasis added).
B. The Marriage Bans Deny Plaintiffs Equal Protection Of
The Laws On the Basis Of Gender
In addition to discriminating against same-sex couples based on their sexual
orientation, South Dakota’s marriage bans also openly discriminate based on
gender. Each of the Appellee couples would be permitted to marry, or have their
marriage recognized, if his or her partner were a different sex. Appellees are
denied these rights solely because they are not a different sex. See Kitchen, 961 F.
Supp. 2d at 1206 (“[Utah’s marriage ban] involves sex-based classifications
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because it prohibits a man from marrying another man, but does not prohibit that
man from marrying a woman.”); Perry, 704 F. Supp. 2d at 996 (state marriage ban
discriminates based both on sexual orientation and gender).
That same reasoning applies to gender-based classifications. See J.E.B. v.
Alabama ex. rel. T.B., 511 U.S. 127, 140-41 (1994) (citing Powers, extending its
reasoning to sex-based peremptory challenges, and holding that such challenges
are unconstitutional even though they affect both male and female jurors). Under
Loving, Powers, and J.E.B., the gender-based classifications in South Dakota’s
marriage bans are not valid simply because they affect men and women the same
way.
Rather, the relevant inquiry under the Equal Protection Clause is whether the
law treats an individual differently because of his or her gender. J.E.B., 511 U.S. at
146. “The neutral phrasing of the Equal Protection Clause, extending its guarantee
to ‘any person,’ reveals its concern with rights of individuals, not groups (though
group disabilities are sometimes the mechanism by which the State violates the
individual right in question).” Id. at 152 (Kennedy, J., concurring in the judgment).
Appellants cannot reasonably contend that South Dakota’s marriage bans
laws do not classify on the basis of sex because, the class of persons regulated by
marriage laws is a couple, not an individual person. Nor can Defendants
reasonably argue that such laws are “gender neutral” because a marriage license is
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issued to a couple, not an individual. As explained above, such arguments directly
contradicts the Supreme Court’s pronouncements that both the right to marry and
the right to equal protection of the laws belonging to the individual . Moreover,
such arguments merely repackages the “equal application” argument rejected in
Loving, 388 U.S. at 8; see also Powers v. Ohio, 499 U.S. 400, 410 (1991) (holding
“that racial classifications do not become legitimate on the assumption that all
persons suffer them in equal degree” and that race-based peremptory challenges
are invalid even though they affect all races); Perez, 198 P.2d at 20 (“The decisive
question . . . is not whether different races, each considered as a group, are equally
treated. The right to marry is the right of individuals, not of racial groups.”).
All of the parties agree that South Dakota issues marriage licenses to two
individuals. Based on gender— relative to each other—South Dakota will deny
both individuals the right to marry when both are of the same sex. Thus, South
Dakota expressly takes gender into account when issuing marriage licenses. That
the law applies that express classification to both persons in a couple does not
immunize the law from the requirement of heightened scrutiny.4 The fallacy of the
argument that the law does not classify on the basis of sex would be apparent if a
state passed a law providing that a woman can only enter into a business
" Similarly, the fact that the law also classifies on the basis of sexual orientation
does not change the fact that the State is also classifying based on gender; the two
classifications are not mutually exclusive.
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partnership with a man, and vice-versa. Such a law would plainly discriminate
based on sex. The same analysis applies here. South Dakota’s marriage laws
discriminate based on sex because they limit access to a vital personal right—the
right to marry—by restricting access to that right only to different-sex partners.
South Dakota’s marriage bans also impermissibly seek to enforce a gender-
based requirement that a woman should only marry a man, and that a man should
only marry a woman. South Dakota’s current marriage laws do not treat husbands
and wives differently in any respect; spouses have the same rights and obligations
regardless of their gender. As such, there is no rational foundation for requiring
spouses to have different genders. Today, that requirement is an irrational vestige
of the outdated notion—long rejected in other respects by the South Dakota
Legislature and the courts—that men and women have different “proper” roles in
marriage.
The Supreme Court has held that the government may not enforce gendered
expectations about the roles that women and men should perform within the
family, whether as caregivers, breadwinners, heads of households, or parents.5 Like
5 See, e.g., Reed v. Reed, 404 U.S. 71, 76-77 (1971) (invalidating Idaho law thatgave men preference over women in administering estates); see also Califano v.
Westcott, 443 U.S. 76, 89 (1979) (finding unconstitutional a federal statute based
on the stereotype that a father is the provider “while the mother is the ‘center of
home and family life’”); Orr v. Orr, 440 U.S. 268, 283 (1979) (invalidating
measure imposing alimony obligations on husbands, but not on wives, because it
“carries with it the baggage of sexual stereotypes”); Stanton v. Stanton, 421 U.S. 7,
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the laws in those cases, South Dakota’s marriage bans use a gender-based
classification not to further an important governmental interest, but rather simply
to reinforce the gendered expectation that marriage “properly” should include a
man and a woman. While that expectation may hold true for some people, it does
not hold true for the Appellee couples and other same-sex couples, who yearn to be
married to the person of their choice.
Under settled law, gender-based classifications are presumed to be
unconstitutional; such a law can be upheld only if supported by an “exceedingly
persuasive justification.” U.S. v. Virginia, 518 U.S. 515, 524 (1996) (internal
quotation marks omitted). As explained below, South Dakota’s reliance on gender
to exclude same-sex couples is not supported by any legitimate justifications, much
less the exceedingly persuasive justification required by the Supreme Court’s
precedent.
C. South Dakota’s Marriage Bans Violate Equal Protection
Under The Heightened Scrutiny Required by Windsor
Under the analysis required by Windsor, South Dakota’s marriage bans
violate equal protection for the same reasons the Supreme Court invalidated
DOMA. In Windsor, the Supreme Court held that Section 3 of DOMA, which
14-15 (1975) (finding unconstitutional state support statute assigning different age
of majority to girls than to boys and stating, “[n]o longer is the female destined
solely for the home and the rearing of the family, and only the male for the
marketplace and the world of ideas”).
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excluded married same-sex couples from federal benefits, violated “basic due
process and equal protection principles” because it was enacted in order to treat a
particular group of people unequally. 133 S. Ct. at 2693. The Court found that no
legitimate purpose sufficed to “overcome” that discriminatory purpose and effect.
Id. at 2696.
Windsor did not refer to the traditional equal protection categories or place a
label on the scrutiny it applied. But as the Ninth Circuit recently held, it is readily
apparent from the analysis the Supreme Court applied that Windsor involved
“something more than traditional rational basis review.” SmithKline Beecham
Corp. v. Abbott Labs., 740 F.3d 471, 483 (9th Cir. 2014).
The Court in Windsor did not consider hypothetical justifications for
DOMA, as an ordinary rational basis analysis would require. Instead, it examined
the statute’s text and legislative history to determine that DOMA’s “principal
purpose is to impose inequality, not for other reasons like governmental
efficiency.” Windsor, 133 S. Ct. at 2694. In addition, Windsor carefully considered
the severe harm to same-sex couples and their families caused by DOMA’s denial
of recognition to their marriage and required Congress to articulate a legitimate
governmental interest strong enough to “overcome[]” the “disability” on a “class”
of persons. Id. at 2696. This Court must apply the same careful consideration to
South Dakota’s similarly purposeful unequal treatment of same-sex couples.
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in their community and in their daily lives.” Windsor, 133 S. Ct. at 2694. The bans
“also bring[] financial harm to children of same-sex couples,” id. at 2695, by
denying their families a multitude of benefits that the State and the federal
government offer to legal spouses and their children.
Also like DOMA, South Dakota’s marriage bans are not justified by any
legitimate governmental interests sufficient to overcome those serious harms.
Indeed, every purported justification asserted by defendants in marriage cases
around the country was presented to the Supreme Court by the Respondent in
urging the Court to uphold DOMA in Windsor. See Brief on the Merits for
Respondent the Bipartisan Legal Advisory Group of the U.S. House of
Representatives, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307),
2013 WL 267026, at *21, 43-49 (arguing that “Congress could rationally decide to
retain the traditional definition for the same basic reasons that states adopted the
traditional definition in the first place and that many continue to retain it”). None
of those purported governmental interests were sufficient to save DOMA from
invalidity, see Windsor, 133 S. Ct at 2696, and they are equally insufficient under
the careful consideration required here. Indeed, they are insufficient under any
level of constitutional review.
D. A Finding Of Animus Is Sufficient, But Not Necessary, To
Find South Dakota’s Marriage Bans And Anti-Recognition
Laws Unconstitutional
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Courts look for a rational connection between purported legislative ends and
the chosen legislative means to ensure that the state has not engaged in line
drawing merely for “the purpose of disadvantaging the group burdened by the
law.” Romer v. Evans, 517 U.S. 620, 633 (1996); see also Windsor, 133 S. Ct. at
2693; City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450 (1985); U.S.
Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973).
Laws whose purpose is to disadvantage a politically unpopular group violate
equal protection. In other words, a finding that a law was advanced for an
impermissible purpose (animus) is sufficient to strike down the law. Windsor, 133
S. Ct. at 2693; Romer, 517 U.S. at 634-35; Cleburne 473 U.S. at 446-47; Moreno,
413 U.S. at 534. The history of South Dakota’s marriage ban shows that this is an
instance of such line drawing. See APP 065–066 (quoting legislative history
indicating that the purpose of Amendment C was to combat “events in Hawaii” and
also showing that Amendment C went beyond marriage, targeting same-sex
couples by further preventing any kind of state recognition of their relationships.)
Appellants argue that, the “amendments to South Dakota’s marriage laws in
1996 and 2006 sought to maintain the status quo. Changes in South Dakota
marriage laws have not removed rights previously enjoyed by same-sex couples,
but rather adopted a long existing, widely held social norm already reflected in
state law.” AB 35–36 (quotations and citations omitted). But Appellants fail to
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recognize that the Windsor Court addressed exactly the same circumstances, since
no state allowed same-sex couples to marry in 1996 when Congress passed
DOMA. Windsor, 133 S. Ct. at 2681. The purpose and effect of South Dakota’s
marriage bans were to disadvantage same-sex couples much like the “history of
DOMA’s enactment,” including a stated interest in “defend[ing] the institution of
traditional heterosexual marriage,” demonstrated “that interference with the equal
dignity of same-sex marriages . . . was more than an incidental effect of the federal
statute” but “was its essence.” Windsor, 133 S. Ct. at 2681. As Justice Scalia
recognized in Lawrence, “‘preserving the traditional institution of marriage’ is just
a kinder way of describing the State’s moral disapproval of same-sex couples.” 539
U.S. at 601 (Scalia, J., dissenting).
Appellants also fail to acknowledge that the legislative history that led the
Supreme Court to find Congress was motivated by “a bare ... desire to harm a
politically unpopular group,” Windsor, 133 S. Ct. at 2694 (citation omitted), is
materially indistinguishable from the history of South Dakota’s marriage bans.
DOMA was enacted in response to a court decision in Hawaii recognizing the
freedom to marry, while South Dakota’s marriage bans and anti-recognition laws
were also enacted in response to “events in Hawaii” and other States recognizing
the rights of same-sex couples. Both the legislative and non-legislative proponents
of South Dakota’s marriage bans and anti-recognition statutes saw those laws as a
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way to thwart any extension of marriage or marriage-like rights to same-sex
couples. See Doc 27 at ¶¶ 1–10. Both South Dakota’s and the federal government’s
(in the case of DOMA) exclusions of same-sex couples were justified by appeals to
tradition and fears of change. Id. The record in Windsor was sufficient to strike
down DOMA’s deprivation from gay and lesbian couples of the federal recognition
and benefits of marriage, and the record here is likewise sufficient to strike down
South Dakota’s marriage bans.
Like DOMA, the laws challenged here enact discrimination of an “unusual
character” because: 1) the laws expressly single out a politically unpopular group
in order to disadvantage them (the Supreme Court noted in Romer, that “laws
singling out a certain class of citizens for disfavored legal status or general
hardships are rare.” 517 U.S. at 633.); 2) the laws sweep with such an extremely
broad brush—barring same-sex couples not only from marriage,