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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CARA PALLADINO and ISABELLEBARKER,

Plaintiffs,

v.

THOMAS W. CORBETT, in his official

capacity as Governor of Pennsylvania,and his successors in office; and

KATHLEEN KANE, in her official

capacity as Attorney General ofPennsylvania, and her successors in

office,

Defendants.

Civil Action

No. 13-cv-05641-MAM

COMBINED MEMORANDUM OF LAW OF DEFENDANT GOVERNOR

THOMAS CORBETT IN RESPONSE TO PLAINTIFFS MOTION FOR

SUMMARY JUDGMENT AND IN REPLY TO PLAINTIFFS RESPONSETO DEFENDANTS MOTION TO DISMISS

Case 2:13-cv-05641-MAM Document 38 Filed 02/19/14 Page 1 of 75

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TABLE OF CONTENTS

TABLE OFAUTHORITIES..ii

I. INTRODUCTION ...............................................................................................1

II. STATEMENT OF THE CASE ...........................................................................5

III. QUESTIONS PRESENTED ...............................................................................9

IV. REPLY TO PLAINTIFFS RESPONSE TO DEFENDANTSMOTION TO DIMISS ...............................................................................................9

A.The Ex parte Young Exception Does Not Apply ..........................................10B.Plaintiffs Fail to Overcome the Governors Eleventh

Amendment Immunity from Suit ..................................................................12

C.Plaintiffs Have Failed to Demonstrate An Actual Caseand Controversy Against the Governor .........................................................17

D.The Full Faith and Credit Clause Does Not Compel the Commonwealthto Recognize Plaintiffs Same-Sex Marriage ................................................22

E. The Right to Travel Protected by the Privileges and Immunities Clauseis not Implicated in Circumstances Where a State Treats New Citizensor Travelers the Same as it Treats Long-Time Residents .............................28

V. PLAINTIFFS MOTION FOR SUMMARY JUDGMENT SHOULD BE

DENIED ............................................................................................................ 30

A.Standard of Review........................................................................................ 31B.Plaintiffs Have Failed to Meet Their Burden of Proof under

42 U.S.C. 1983 Because Plaintiffs Have Failed to Prove StateAction that Involved the Governor ................................................................ 32

C.The Fourteenth Amendment Does Not Require The Commonwealth ofPennsylvania to Recognize Marriage Between Persons of the Same Sex ....34


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D.Plaintiffs Arguments Fail Under the Full Faith Credit Clause and thePrivileges and Immunities Clause .................................................................56

E. Plaintiffs Claims Are Barred by the Applicable Statute of Limitations ......56F. Plaintiffs Claims Are Not Ripe ....................................................................59G.Plaintiffs Have No Standing to Sustain a Claim Based on

Their Purported Harm Suffered as a Result of Proceeding with a SecondParent Adoption .............................................................................................61

H.Plaintiffs Have Not Met the Burden Necessary for Imposition of aPermanent Injunction .....................................................................................63

VI. CONCLUSION ............................................................................................... 65


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TABLE OF AUTHORITIES

Cases

1st Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108 (3d Cir. 1993) ...................................... passim

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ............................................................................. 60

ACLU v. Black Horse Pike Regl Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996). ............................. 64

Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980) ............................................................ 50

Adar v. Smith, 639 F.3d 146 (5th

Cir. 2011) .................................................................................. 25

Algrant v. Evergreen Valley Nurseries Ltd. Pship,126 F.3d 178 (3d Cir. 1997) ....................... 58

Allen v. Wright, 468 U.S. 737 (1984) ........................................................................................... 63

Allied Artists Pictures Corp. v. Rhodes, 473 F. Supp. 560 (S.D. Ohio 1979) .................. 13, 20, 21

Andersen v. King Cnty., 138 P.3d 963 (Wash. 2006) .................................................... 43,51,53,66

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). ...................................................... 31,32,68

Baehr v. Lewin, 852 P.2d 44, 55-56 (Haw. 1993) ........................................................................ 50

Bailey v. Cohen, 38 U.S. 312 (1839).27

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) .......................................................................... 51

Baker v. Nelson, 409 U.S. 810 (1972)..passim

Bd. of Trustees v. Garrett, 531 U.S. 356 (2001) ........................................................................... 53

Bishop v. Oklahoma,333 Fed. Appx. 361 (10th

Cir. 2009) ..................................................... 19,36

Bishop v. United States ex rel. Holder,No. 04-CV-848, 2014 U.S. Dist. LEXIS 4374 (N.D. Okla.

January 14, 2014)...36

Bostick v. Rainey, Civ. 2:13-cv-395, 2014 U.S. Dist. LEXIS 19080 (E.D. Va. Feb. 13, 2014)36

Califano v. Sanders, 430 U.S. 99 (1977) ...................................................................................... 60

Childrens Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412 (6th

Cir. 1996) .................. 21

Christian Legal Soc. Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971 (2010) .............. 37


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Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th

Cir. 2006) ............................. 22,49,50

City of Cleburn v. Cleburn Living Ctr.,473 U.S. 432 (1985)47

Conaway v. Deane, 932 A.2d 571 (Md. 2007) ............................................................................. 50

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209 (3d Cir. 2013) ................................................. 48

Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135 (3d Cir. 2004) ..................................... 31

Cope v. Anderson, 331 U.S. 461 (1947) ....................................................................................... 57

Dept of Health v. Hanes, 78 A.3d 676 (Pa. Commw. Ct. 2013) ............................................ 11,15

Feldman & Pinto, P.C. v. Seithel, 2011 U.S. Dist. LEXIS 1476 (E.D. Pa. Dec. 22, 2011). ....... 63

FFC v. Beach Commcns, 508 U.S. at 307 (1993) ....................................................... 47,51,52, 53

Finsteun v. Edmonson, No. 04-1152, (W.D. Okla. Dec. 7, 2004) ................................................ 22

Garvin v. City of Philadelphia, 354 F.3d 215 (3d Cir. 2003). ...................................................... 56

Gilbert v. Cambridge, 745 F. Supp. 42 (D. Mass. 1990). ............................................................. 57

Golden v. Zwickler, 394 U.S. 103 (1969). .................................................................................... 17

Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) ................................ 43

Gregory v. Ashcroft, 501 U.S. 452 (1991) .................................................................................... 49

Griego v. Oliver, 2013 N.M. LEXIS 414 (Dec. 19, 2013) ........................................................... 47

Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000)32

Heffner v. Murphy, No. 12-3591, (3d Cir. Feb. 19, 2014) .................................................. 48,51,53

Heller v. Doe, 509 U.S. 312 (1993) ......................................................................................... 46,48

Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006)..................................................................... 43,50

Hicks v. Miranda, 422 U.S. 332 (1975) ........................................................................................ 36

In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ...................................................... 43,47,50

In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tx. Ct. App. 2010) ....................................... 51


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Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797 (3d Cir. 1989)............................ 63

Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) .................................. 37,43,44,50

Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988). ...................................................... 47

Khodara Envtl., Inc. v. Blakey, 376 F.3d 187 (3d Cir. 2004) ....................................................... 60

Kitchen v. Herbert, 2013 U.S. Dist. LEXIS 179331 (D. Utah Dec. 20, 2013) ........................ 36,40

Larsen v. State Emples. Ret. Sys., 553 F. Supp. 2d 403 (M.D. Pa. 2008) ..................................... 58

Lawrence v. Texas, 539 U.S. 558 (2003) ...................................................................................... 37

Loving v. Virginia, 388 U.S. 1 (1967)......................................................................... 40, 41, 44, 50

Lujan v. Defenders of Wildlife,504 U.S. 555 (1992) .............................................................. 61,62

Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270(1941) .................................. 18

Massachusetts v. U.S. HHS, 698 F. Supp. 2d 234 (D. Mass. 2010) ............................................. 43

Massachusetts v. United States Dept of HHS, 682 F.3d 1 (1stCir. 2012) .............................. 37,43

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).................................... 31

Matter of Cooper, 592 N.Y.S.2d 797 (N.Y. App. Div. 1993) ...................................................... 50

Maynard v. Hill, 125 U.S. 190 (1888) .......................................................................................... 44

McElmoyle ex rel. Bailey v. Cohen,38 U.S. 312 (1839) .............................................................. 27

Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974) .................................................... 29

Mills v. Duryee, 11 U.S. 481 (1813)..27

Morales v. PNC Bank, N.A., C.A. 2012 U.S. Dist. LEXIS 143605 (E.D. Pa. Oct. 3, 2012) ........ 31

Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005) ................................................................... 50

Nevada v. Hall,440 U.S. 410 (1979) ....................................................................................... 24,28

Nextel Commcns of Mid-Atl., Inc. v. City of Margate, 305 F.3d 188 (3d Cir. 2002) .................. 60

OConnor v. City of Newark, 440 F.3d 125 (3d Cir. 2006) .......................................................... 56


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Pa. Dept. of Health v. Hanes, No. 379 M.D. 2013 (Pa. Commw. Ct.)11,15,16

Pacific Employers Ins. Co.v.Industrial Accident Commn, 306 U.S. 493 (1939) ............. 23,24

Pink v. A.A.A. Highway Exp., 314 U.S. 201(1941) ....................................................................... 23

Reno v. Flores, 507 U.S. 292 (1993). ........................................................................................... 44

Robicheaux v. Caldwell, C.A. 2013 U.S. Dist. LEXIS 168800 (E.D. La. Nov. 26, 2013) ........... 14

Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997) ..................................................... 32

Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988) ............................................................ passim

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) .................................. 36

Romer v. Evans, 517 U.S. 620 (1996)...................................................................................... 37,48

Saenz v. Roe, 526 U.S. 489 (1999). .............................................................................................. 29

Sameric Corp. v. City of Philadelphia, 142 F.3d 582 (3d Cir. 1998). .......................................... 57

Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) ................................................... 37,51,57

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). .............................................. 44,51

Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ......................................... 43,50

Sosna v. Iowa, 419 U.S. 393 (1975) ............................................................................................. 49

Standhardt v. Super. Court, 77 P.3d 451 (Ariz. Ct. App. 2003) ................................................... 50

State Oil Co. v. Khan, 522 U.S. 3 (1997)...................................................................................... 36

Sugarman v. Dougall, 413 U.S. 634 (1973) ................................................................................. 49

Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568 (1985). ................................................ 60

Tigg Corp. v. Dow Corning Corp., 822 F.2d 358 (3d Cir. 1987). ................................................ 31

United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980). ........................................................... 52

United States v. Diebold, Inc., 369 U.S. 654 (1962)..................................................................... 31

United States v. Windsor, 133 S. Ct. 2675 (2013) ................................................................. passim


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Vance v. Bradley, 440 U.S. 93 (1979). ......................................................................................... 53

Wallace v. Kato, 549 U.S. 384 (2007). ......................................................................................... 57

Washington v. Glucksberg, 521 U.S. 702 (1997). ................................................................. passim

Whitmore v. Arkansas, 495 U.S. 149 (1990). ............................................................................... 64

Wilson v. Ake,354 F. Supp. 2d 1298 (M.D. Fla. 2005) ......................................................... passim

Zablocki v. Redhail, 434 U.S. 374 (1978)..................................................................................... 44

Statutes23 Pa.C.S. 1102 ..................................................................................................................... 49,50

23 Pa.C.S. 1704 ................................................................................................................... passim

28 U.S.C. 1738C ........................................................................................................................ 26

42 Pa.C.S. 5524 .......................................................................................................................... 56

42 U.S.C. 1983 .................................................................................................................... passim

71 P.S. 534(c) ............................................................................................................................. 15

71 P.S. 732-101 .......................................................................................................................... 16

Rules

Fed. R. Civ. P. 12(b)(1)............................................................................................................ 11,22

Fed. R. Civ. P. 56(c)(4) ................................................................................................................... 7

Fed. R. Evid. 201(b). ....................................................................................................................... 7


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I. INTRODUCTIONDefendant Governor Thomas Corbett (Defendant) files this combined

memorandum of law in reply to Plaintiffs response to Defendants motion to

dismiss and in response to Plaintiffs motion for summary judgment. For the

reasons set forth herein, and for those set forth in Defendants motion to dismiss,

the complaint should be dismissed in its entirety and summary judgment denied.

Defining and regulating marriage is within the exclusive province of the

states and a task properly left to the individual states legislatures. The Supreme

Court in United States v. Windsor, 133 S. Ct. 2675 (2013), clearly reaffirmed the

rights of the various states to define and regulate issues of domestic relations. The

Court recognized that [b]y history and tradition the definition and regulation of

marriage has been treated as being within the authority and realm of the

separate States, id. at 268990, and emphasized the significance of state

responsibilities for the definition and regulation of marriage [that] date[] to the

Nations beginning. Id. at 2691. Notwithstanding the states primacy in defining

this foundational social and legal institution, reaffirmed by the Supreme Court in

Windsor, Plaintiffs ask this Court to intrude on the states power, thereby

disrupting the constitutional balance between federal and state powers and

upsetting the separation of powers among the branches of government.


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from making their constitutional challenges to Pennsylvanias Marriage Law

directly against the Governor.

As explained infra, the Governor is immune from suit under the Eleventh

Amendment; and nothing in Plaintiffs complaint overcomes that immunity.

Properly understood, the provisions of the Pennsylvania Marriage Law that

Plaintiffs challenge and seek to have enjoined in no way implicate the powers and

duties of the Governor in a manner that would permit a constitutional claim against

him in federal court. As stated in their complaint, Plaintiffs claim against the

Governor challenging Pennsylvanias Marriage Law cannot be distinguished from

a suit against the Commonwealth itself, which certainly would be improper. Just

as a suit against the Commonwealth in this case surely would be dismissed by this

Court based on the Eleventh Amendment, so must Plaintiffs claim against the

Governor.

Second, Plaintiffs have failed to establish against the Governor a valid claim

under 42 U.S.C. 1983 because they identify no action traceable to the Governor

that violates their constitutional rights. To state a claim for declaratory judgment

or equitable relief against a state official under 1983, a plaintiff must identify

specific action that the state official has taken, or that he has the power and is

likely to take under the challenged state law, in violation of the plaintiffs rights

under federal law. Absent the identification of state action by the specific state


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official who has been named as a defendant, a complaint fails to state a claim

against that official cognizable under 1983. That is so because under Article III

of the Constitution, Plaintiffs must assert their claim against a government official

whose powers, duties or actions can be fairly traced to the constitutional injury that

Plaintiffs allege they are suffering. Plaintiffs complaint fails to state such a claim

against the Governor.

Third, each of Plaintiffs challenges to Pennsylvanias Marriage Law are

barred by the Supreme Courts decision in Baker v. Nelson, 409 U.S. 810 (1972),

by which this Court is bound. Bakerdealt with the same constitutional challenges

to a state law that barred the recognition of same-sex marriage. In reviewing a

state court decision rejecting those challenges, the Supreme Court dismissed the

plaintiffs appeal on grounds that the constitutional issue advanced did not present

a substantial federal question. This Court must do the same.

Fourth, the Marriage Law, like every duly enacted law, is presumptively

constitutional. Thus, this Court must presume that the Pennsylvania General

Assembly intended through its 1996 amendments to Pennsylvanias marriage

statute to promote or advance legitimate state interests and that the law rationally

serves those interests.

Finally, Plaintiffs claims are barred by the applicable statute of limitations.

Plaintiffs constitutional challenge to the Pennsylvania marriage law that declares


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their Massachusetts marriage to be void ripened as early as 2005 when they moved

from Massachusetts to live in Pennsylvania. Yet Plaintiffs waited more than seven

years before bringing suit. Thus, their action was filed too late to proceed in this

Court.

Though Plaintiffs may disapprove of the interests expressed by members of

the Pennsylvania General Assembly when it enacted the amendments to the

Marriage Law at issue here, their disagreement with the General Assembly does

not prove that those interests are illegitimate or the law irrational. Under

established principles of constitutional law, including the presumption of

constitutionality and the deference owed to the legislature, the Governors motion

to dismiss should be granted and Plaintiffs motion for summary judgment denied.

II. STATEMENT OF THE CASEOn September 26, 2013, Plaintiffs filed a complaint seeking a declaratory

judgment pursuant to 42 U.S.C. 1983 that, if granted, would invalidate the

provision of Pennsylvanias Marriage Law that declares as void in Pennsylvania

same-sex marriages entered into in other jurisdictions. See 23 Pa.C.S. 1704.

(Doc. 1).

The provision of the Marriage Law that Plaintiffs attack was passed by the

Pennsylvania General Assembly on October 7, 1996, and signed into law by then-

Governor Ridge on October 16, 1996. In this action, Plaintiffs have named as


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defendants only the Governor of Pennsylvania and the Attorney General of

Pennsylvania each in his or her official capacity. Id. They allege that

Pennsylvanias Marriage Law denies Plaintiffs due process and equal protection

under the Fourteenth Amendment to the U.S. Constitution. Id. They further allege

that the Pennsylvania General Assemblys refusal to recognize a same-sex

marriage legally celebrated in another state is a violation of the Full Faith and

Credit Clause of the U.S. Constitution and their constitutionally protected right to

travel. Id. However, as explained infra, Plaintiffs do not connect their

constitutional grievances with the statute to any action by the Governor, nor to any

specific power or duty of the Governor, in any manner sufficient under federal law

to state a claim against him.

In addition, though Plaintiffs have requested summary judgment in their

favor, they have offered no statement of undisputed facts. Instead, the only facts

Plaintiffs allege (but which have not been verified through the discovery process)

are that they were generally aggrieved beginning nearly nine years ago when they

moved to Pennsylvania because Pennsylvania did not then, and does not now,

recognize their Massachusetts marriage.

As averred in their complaint, Plaintiffs moved to Pennsylvania in August

2005. See Doc. 1 15; see also Doc. 27, p.7. The only specific and concrete

injury they claim occurred in 2009, when Plaintiff Barker bore a child and the


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couple used Pennsylvanias second-parent adoption process because the

Pennsylvania Department of Health would not place Plaintiff Palladinos name on

the childs birth certificate. The adoption was finalized on June 12, 2009. See

Doc. 1 21, 25; see also Doc. 27, pp.7-8.

There has been no discovery in this case. Plaintiffs statement of facts

consists, in large part, of legal argument, not facts. The only actual facts presented

are excerpts from the legislative history, irrelevant press release quotations, and the

facts averred in Plaintiffs complaint (supported by affidavits).1

Some of Plaintiffs factual averments, however, are based on a false

premise. Plaintiffs claim that Plaintiff Palladino was not listed on their sons birth

certificate because their marriage is not recognized in Pennsylvania. This is

incorrect as a matter of law.

Whether a person may be listed on a childs birth certificate is not based on

whether the person is married to the mother giving birth; rather, it is based on

whether that person has (or is presumed under the law to have) a genetic

connection to the child. The Department of Healths summary of Assisted

Conception Procedures (attached hereto as Exhibit A) explains the processes

and procedures of the Department of Health as they relate to this issue (verified by

1Plaintiffs request for this Court to take judicial notice of the content of various

attached newspaper articles (Doc. 27, pp. 9-10) is improper because suchstatements are neither generally known nor of reasonably indisputable character.

SeeFed. R. Civ. P. 56(c)(4); Fed. R. Evid. 201(b).


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Marina Matthew, Director of Health Statistics and Research, Department of

Health).2 These procedures apply to both heterosexual couples and same-sex

couples, regardless of whether the couples are single or married. Id.

Consequently, unless Plaintiff Palladino actually has a genetic connection to the

child, Plaintiffs would have been required to proceed with a second parent

adoption even if their marriage had been recognized in Pennsylvania.

Plaintiffs allege no facts occurring since 2009, nor have they cited to any

specific harm that they have suffered since that time. Therefore, the only specific,

concrete injury Plaintiffs allege to have suffered as a result of the Marriage Law

could not have been caused by the statute at issue as a matter of law.

2The Assisted Conception Procedures relating to same-sex female couples are as

follows:

In the case of same sex (female) intended parents where one ofthe women was the source of the ova, there was anonymous sperm,

and the other woman was the gestational carrier, the Department listsboth women as parents as there is no need to choose between the

genetic mother and the gestational carrier as the childs parent.However, if the woman giving birth is the genetic mother of the child,

the couple cannot get a pre-birth order and must follow the proceduresfor second parent adoption after the child is born. In the meantime,

the woman giving birth is listed on the birth certificate as mother.(Note: A second parent adoption is required when a person with no

biological (and thus no legal) relationship to the child seeks to adoptthat child. Second parent adoption proceedings are used by both

heterosexual and same-sex-couples.)

Id.


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III. QUESTIONS PRESENTEDIn addition to the questions presented in Defendants motion to dismiss, the

following questions are presented by Plaintiffs motion for summary judgment:

Should this Court deny Plaintiffs motion for summary judgment against the

Governor because: (i) Plaintiffs have failed to carry their burden of proof under 42

U.S.C. 1983; (ii) under Baker v. Nelson, there is no substantial federal question

implicated by any of Plaintiffs claims; (iii) no fundamental liberty issue is

involved; (iv) the Pennsylvania General Assembly has determined that section

1704 of the Marriage Law (23 Pa.C.S. 1704) is rationally related to legitimate

state interests (as evidenced by the relevant legislative history); (v) Plaintiffs have

failed to state a claim under the Full Faith and Credit and Privileges and

Immunities Clauses of the United States Constitution; (vi) Plaintiffs lack standing

and have not set forth a ripe claim for adjudication; (vii) Plaintiffs have failed to

demonstrate they have suffered irreparable harm; and (viii) Plaintiffs claims are

barred by the applicable statute of limitations?

Suggested Answer: Yes.

IV. REPLY TO PLAINTIFFS RESPONSE TO DEFENDANTS MOTIONTO DISMISS

Plaintiffs cannot refute Defendants arguments in favor of dismissing

Plaintiffs complaint. First, contrary to Plaintiffs arguments, theEx parte Young


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exception does not apply under the facts and circumstances of this case. The

Governor, therefore, is immune from suit under the Eleventh Amendment.

Second, Plaintiffs have failed to set forth against the Governor a viable case

or controversy under Article III of the Constitution. That is so because the harm

that Plaintiffs claim is caused to them by 23 Pa.C.S. 1704 cannot be fairly

traceable to the Governor.

Third, Baker v. Nelson remains controlling precedent that, in and of itself,

warrants the dismissal of this action. In addition, neither the Full Faith and Credit

Clause nor the Privileges and Immunities Clause is applicable to a statute defining

marriage.

Finally, section 2 of the Defense of Marriage Act is a proper exercise of

congressional power under the Full Faith and Credit Clause.

A. TheEx parte YoungException Does Not Apply.At its essence, Plaintiffs claim is made against the Commonwealth of

Pennsylvania itself. Because the Eleventh Amendment bars suits against non-

consenting states in federal court, Plaintiffs cannot proceed with their claims as

pled.

In his motion to dismiss, the Governor has explained why the claims against

him are barred by the Eleventh Amendment. The Governor set forth at length

reasons why theEx parte Youngexception to Eleventh Amendment immunity does


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not apply. In sum, Plaintiffs cannot challenge the constitutionality of

Pennsylvanias Marriage Law through a suit against the Governor because there is

no actual connection between the Governor and the statute in question and

nothing that Plaintiffs have presented in their complaint or motion makes a

meaningful and legally relevant connection between the law and the Governor.

Accordingly, the claims against the Governor fail to establish an actual case or

controversy and should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1).

In their memorandum, Plaintiffs claim that the Governor is not immune from

suit because, inter alia, he has not asserted affirmatively that he lacks authority

to enforce 23 Pa.C.S. 1704, and he has not asserted expressly that he lacks the

authority to enforce the law or that he does not or will not enforce and/or direct his

subordinates to enforce the law. Doc. 27, p. 18. Plaintiffs also point to the

litigation efforts of the Commonwealths Office of General Counsel in an unrelated

case (Pa. Department of Health v. Hanes, No. 379 M.D. 2013 (Pa. Commw. Ct.))

and that offices appointment of legal counsel to represent the Governor in this

case as evidence of the Governors ability to enforce the statute in question. Id.

For the reasons set forth below, Plaintiffs arguments fail to establish that the

Governor has the power to enforce the statute in question, let alone that he is likely

to use his official powers in the matter about which Plaintiffs complain. Thus,


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Plaintiffs arguments fail to overcome the immunity to which the Governor is

entitled in federal court as the chief executive of the Commonwealth government.

B. Plaintiffs Fail to Overcome the Governors Eleventh AmendmentImmunity from Suit.

Plaintiffs recognize that the Eleventh Amendment provides immunity to the

Governor with regard to claims that do not fall within the confines of theEx parte

Young exception. However, Plaintiffs assert that they meet the requirements for

application of the Ex parte Young exception due to the self-executing nature of

Pennsylvanias Marriage Law, coupled with extra-judicial statements and materials

to which they refer.

As the Governor previously has established, inquiry into whether the Ex

parte Youngexception applies is limited to the allegations in Plaintiffs complaint

which, in this case, is entirely devoid of any allegation asserting that the

Governor has any connection or special relationship to the laws in question.

Plaintiffs ignore this essential requirement of theEx parte Youngexception.

Moreover, Plaintiffs misstate the established interpretation of Ex parte

Youngin the Third Circuit, exemplified by 1st Westco Corp. v. Sch. Dist. of Phila.,

6 F.3d 108, 113 (3d Cir. 1993), andRode v. Dellarciprete, 845 F.2d 1195, 1209 n.9

(3d Cir. 1988). Under the express holdings of those cases, a party suing a

government official must rely upon more than the officials general authority to

uphold or defend the law. Thus, Plaintiffs statement at page 18 of their brief


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that Defendants are wrong when they say that [g]eneral authority to enforce the

laws of the state has never been deemed sufficient to allow suit to be brought

against the government official in federal court is simply incorrect.

The Third Circuit in 1st Westco (referencing its earlier decision in Rode)

said this: [A]lthough Ex parte Young allows a party to be joined to a lawsuit

based solely on his or her general obligation to uphold the law, it is appropriate

only in cases in which there is a real, not ephemeral, likelihood or realistic

potential that the connection will be employed against the plaintiffs interests.3

Similarly, in Rode, the Third Circuit found that because there was no realistic

potential that the Governors general power to enforce the laws of the state would

have been applied to a departmental regulation against a PSP administrative

assistant, theEx parte Youngexception did not apply. Rode, 845 F.2d at 1208.

Here, Plaintiffs have not even pled, let alone established, any likelihood or

potential that the Governor is likely to enforce the law in a manner that would

adversely affect Plaintiffs interests, as both Rode and 1st Westco require.

Consequently, the Governor must be dismissed.

Additionally, Plaintiffs have not identified a single law in their complaint

that is enforced or administered by the Governor. To the contrary, Plaintiffs seek

3The fact that this quote originated in Allied Artists Pictures Corp. v. Rhodes, 473

F. Supp. 560 (S.D. Ohio 1979), is of no moment. Allied Artistshas no applicability

here for the reasons set forth in section IV(C)(1) of this brief.


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to avoid the Ex parte Younganalysis altogether by labeling the Marriage Law as

self-executing. Plaintiffs then chastise the Governor (as well as the Attorney

General) for failing to come forward with the name of an official who can reverse

the nullification of their marriage. See Doc. 27, p. 20 ([N]either Defendant

Corbett nor Defendant Kane has identified any single public official or

combination of public officials who could act to reverse the nullification of

Plaintiffs marriage within Pennsylvania.).

Plaintiffs arguments ignore one fundamental principle: It is they as the

plaintiffs, not the Governor as a defendant, who bear the burden of proving how

the laws of Pennsylvania have negatively affected their rights and how the

defendants are responsible for, have enforced, or are likely to enforce, the law in

question. Plaintiffs attempt to bypass this fundamental requirement should not be

countenanced. Because Plaintiffs have failed completely to identify a law enforced

by the Governor that is causing them harm, the claims against Governor Corbett

must be dismissed. See Robicheaux v. Caldwell, C.A. No. 13-5090, 2013 U.S.

Dist. LEXIS 168800, *5 (E.D. La. Nov. 26, 2013) (accepting Attorney Generals

Eleventh Amendment argument that, [b]ecause plaintiffs, as the record stands,

have made no effort or attempt to seek official recognition of their same-sex

marriages by the State of Louisiana, the Attorney General lacks the requisite

connection with the enforcement of the ban).


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Plaintiffs citation to actions taken by the Commonwealths Office of

General Counsel and its Department of Health, as well as inadmissible public

statements purportedly made by the Governor that are unrelated to Plaintiffs

claims, in no way connect the Governor to the challenged statute or Plaintiffs

alleged harm. These items cited by Plaintiffs, which are not part of Plaintiffs

complaint or connected to Plaintiffs suit, are irrelevant and immaterial to the

question of whether the Governor is likely to enforce the statute and cause

Plaintiffs harm. Those examples of state government activity and comments made

by the Governor, disconnected from any action actually taken to enforce the law,

establish no meaningful relationship between the Governor, the statute at issue, and

the harm that Plaintiffs purportedly have suffered as a result of that law.4

4

That the Pennsylvania Department of Health, through the CommonwealthsOffice of General Counsel, inDepartment of Health v. Hanes, No. 379 M.D. 2013(Pa. Commw. Ct.), initiated mandamus proceedings to require a county clerk to

comply with the Marriage Law, establishes no connection to the Governor. TheSecretary of Health is not the alter ego of the Governor. They hold distinct officesunder Pennsylvania law, having different responsibilities. Plaintiffs do not allege

and they have no basis to allege that the Governor ordered or directed theDepartment of Health to take any particular action, including the pursuit of an

action in mandamus against a county clerk who was notoriously refusing as amatter of his own personal policy to follow a law binding on him and under which

the Department of Health has oversight responsibility. See 71 P.S. 534(c)(requiring the Department of Health, inter alia, [t]o see that the laws requiring the

registration of marriages are uniformly and thoroughly enforced throughoutthe State). As Commonwealth Court held, the Department of Health had the

power and duty under its own statutory authority to invoke judicial assistance tocompel an officer of the government to obey the law. See Dept of Health v.

Hanes, 78 A.3d 676 (Pa. Commw. Ct. 2013), appeal pending, No. 77 MAP 2013.


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It is not the law that the Governor can be sued by default simply because

Plaintiffs claim that they are unable to identify a specific public official or

government agency that is responsible to enforce the law that Plaintiffs claim is

causing them constitutional harm.5 Unless the Governor is directly responsible

No action by the Governor was needed for the Department of Health to act, and no

gubernatorial direction in fact was issued in that matter.

As for the Office of General Counsel (OGC), the duties of OGC areprescribed by the Commonwealth Attorneys Act (CAA), 71 P.S. 732-101 et seq.,

and are performed independently of the Governor. Section 301 of the CAAassigns OGC responsibility to provide legal advice and services to all executive

agencies, including the Department of Health, 71 P.S. 732-301(1), (3), and to[s]upervise, coordinate and administer the legal services provided by the chief

counsel and assistant counsel for each executive agency. Id. 732-301(2). Asrelevant to the Hanes case, OGC has the specific duty to [i]nitiate appropriateproceedings when an action or matter has been referred to the Attorney General

and the Attorney General refuses or fails to initiate appropriate proceedings.

Id. 732-301(6). InHanes, OGC did nothing more than represent the Department

of Health as its legal counsel in assisting that agency in performing its statutoryresponsibility. OGCs actions as legal counsel for the Department of Health in

Hanes, acting under its statutory duty under the CAA, in no way are connected tothe Governor.

The same is true of the General Counsels appointment of legal counsel to

represent the Governor in this case. When the Attorney General refused torepresent the Governor, it was the duty of the General Counsel under section

301(6) of the CAA to provide representation to the Governor. See 71 P.S. 732-

301(6) (It is the duty of the General Counsel to defend an executive agency or

official (including the Governor) when an action or matter has been referred to theAttorney General and the Attorney General refuses or fails to defend the agency orofficial.). In appointing legal counsel for the Governor, the General Counsel did

no more than perform his duty under the CAA.

5Plaintiffs claimed inability to identify a government official against whom they

might bring suit to challenge the constitutionality of 23 Pa.C.S. 1704 means


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under the law to administer or enforce the statute that Plaintiffs claim is

unconstitutional, or Plaintiffs allege facts demonstrating that the Governor has

undertaken (or is likely) to enforce the offending statute in a way that Plaintiffs

claim is harming or would harm them, Plaintiffs state no claim against the

Governor that may proceed in this Court under 1983 or any other authority.

In sum, because Plaintiffs do not allege that the Governor has some

connection with the enforcement of the statute in question that he has used or is

likely to invoke, the Ex parte Young exception does not apply. Therefore,

Plaintiffs claims against the Governor must be dismissed.

C. Plaintiffs Have Failed to Demonstrate An Actual Case and

Controversy Against the Governor.

Plaintiffs likewise have failed to establish an actual case or controversy

against the Governor. Under Article III of the Constitution, a federal court may

exercise jurisdiction only where there is an actual case or controversy to be

decided. Golden v. Zwickler, 394 U.S. 103, 108 (1969). [T]he question in each

case is whether the facts alleged, under all the circumstances, show that there is a

substantial controversy, between parties having adverse legal interests, of sufficient

either that the statute is not really causing Plaintiffs any concrete harm for which a

government actor is responsible and can be sued under 1983, or Plaintiffs simplyare not willing to identify specific ways in which the statute operates to their

detriment and to identify the government official or agency who is responsible toadminister the law in its application to Plaintiffs. Either way, Plaintiffs have no

cause of action against the Governor.


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immediacy and reality to warrant the issuance of declaratory judgment. Maryland

Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 273 (1941).

To establish a viable case or controversy between these Plaintiffs and the

Governor, Plaintiffs must establish that the Governor enforced, or threatened to

enforce, the statute against them. Rode v. Dellarciprete, 845 F.2d 1195, 1209 n.9

(3d Cir. 1988). That is understandable because, as the Third Circuit inRodestated,

[g]eneral authority to enforce the laws of the state is not sufficient to make

government officials the proper parties to litigation challenging the law. Id. at

1208. To the contrary, a plaintiff must show that his or her injury is fairly

traceable to the defendant, which means that the plaintiff must establish a chain

of causation between the challenged Government conduct and the asserted injury

that is not speculative. Thus, Plaintiffs must trace their injury to the powers

possessed and actions taken by the named defendants to enforce the law that

Plaintiffs claim is harming them.

As is true of their response to the Governors Eleventh Amendment

argument, Plaintiffs have put forth no evidence to establish that the Governor has

the power to enforce the Marriage Law, or that he is likely to take action to enforce

the statute in question, in a manner that Plaintiffs allege would cause them harm.

Their claims, therefore, must be dismissed on Article III grounds.


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The U.S. Court of Appeals for the Tenth Circuit reached this very

conclusion in Bishop v. Oklahoma,333 Fed. Appx. 361 (10thCir. 2009) a case

challenging the constitutionality of an Oklahoma law that barred recognition of the

plaintiffs same-sex marriage celebrated under the laws of British Columbia. The

court of appeals in Bishop reversed a district courts decision refusing to dismiss

claims made against Oklahomas Attorney General and its Governor. The Tenth

Circuit ordered dismissal of the case because the plaintiffs had failed to identify

any action that would be taken by the Governor or the Attorney General which

would affect them. 333 Fed. Appx. at 365 n.6. Rather, the plaintiffs simply asked

the court to declare the state law unconstitutional. Id. Because the plaintiffs sued

only state officials who had no direct connection to the enforcement of the

challenged statute, the court of appeals ruled that the plaintiffs lacked standing

under Article III and directed that their case be dismissed accordingly. Plaintiffs

case here has precisely the same Article III flaws that the Tenth Circuit determined

to be fatal inBishop.

Under Ex parte Young, Rode, 1st Westco, and Bishop, Plaintiffs claims

against the Governor must be dismissed both on Eleventh Amendment immunity

grounds and because Plaintiffs have failed to establish an actual case or

controversy against him under Article III of the United States Constitution.


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The case law Plaintiffs cite is inapposite. In an attempt to distance

themselves from the binding Third Circuit precedent on this issue, e.g., Rodeand

1st Westco, Plaintiffs cite cases from federal courts outside the Third Circuit in

which the plaintiffs purportedly were allowed to sue a states governor based

solely on his general authority to enforce the laws. However, none of these

cases actually support Plaintiffs position.

First,Allied Artists Pictures Corp. v. Rhodes, 473 F. Supp. 560 (S.D. Ohio

1979), cannot support Plaintiffs position because that case predated and

contradicts the Third Circuits decisions inRode and 1st Westco. Hence, because

this 35-year-old district court decision from Ohio conflicts with authority in the

Third Circuit, it is of no relevance here at all.

In any event, Allied Artists involved an entirely different factual scenario

that cannot be analogized to the facts alleged in this case. The plaintiff companies

in Allied Artists challenged the constitutionality of a statute that regulated

distribution of motion pictures and sought to enjoin its enforcement. The statute at

issue regulated the procedures by which motion picture distributors and exhibitors

contracted for the rights to exhibit motion pictures. The statute, inter alia,

rendered void portions of license agreements containing prohibited terms; but the

states only involvement with the statute at issue was through the Ohio courts. The

district court found that the Governor might find it necessary to step in to insure


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[sic] that the intent of the Act is realized, and that extensive violations might

warrant governmental enforcement. Thus, based on its conclusion that the

Governor might find it necessary to step in personally in the event of extensive

violations of the law, the court concluded that Eleventh Amendment immunity

did not apply and that the plaintiffs had established a case or controversy under

Article III. No similar claims are made here nor could they reasonably be made.

More importantly, Allied Artistshas been seriously questioned by the U.S.

Court of Appeals for the Sixth Circuit (of which the district court in Allied Artists

is a part). In Childrens Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412

(6th Cir. 1996), the court of appeals noted Allied Artists tension with Supreme

Court jurisprudence and rejected its holding that general duty provisions are

sufficient to overcome Eleventh Amendment immunity. Id. at 1414-16. Hence,

not only does Allied Artistshave no binding effect on this Court, it has dubious

standing even in its own circuit.6

In sum, Allied Artists is factually distinguishable from the situation here,

where any harm Plaintiffs purportedly could suffer relate to laws that are

administered not by the Governor, but by other officials and agencies of state and

local government (including the states courts). And even by its own terms,Allied

6The U.S. Court of Appeals for the Fifth Circuit also has questioned the reasoning

of theAllied Artistsopinion. SeeOkpalobi v. Foster, 244 F.3d 405 (5thCir. 2001).


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Artists could not apply since there is no basis to conclude that the Governor is

likely to take action directly to enforce the law.

The other cases Plaintiffs cite Finsteun v. Edmonson, No. 04-1152, slip.

op. at 1 (W.D. Okla. Dec. 7, 2004); and Citizens for Equal Protection v. Bruning,

455 F.3d 859, 864 (8thCir. 2006) are similarly irrelevant to this analysis. The

district court in Finsteunspecifically refused to follow 1st Westco, by which this

Court is bound. And in Bruning (unlike here), no defendant asserted Eleventh

Amendment immunity or challenged the plaintiffs suit against the governor under

Article III. Thus, these cases add nothing to the analysis of whether, under binding

precedent of the Third Circuit, the Eleventh Amendment and Article III bar

Plaintiffs claims against the Governor.

For all of these reasons, in addition to those raised in Defendants opening

brief, this Court should dismiss all claims against the Governor pursuant to Rule

12(b)(1).

D. The Full Faith and Credit Clause Does Not Compel theCommonwealth to Recognize Plaintiffs Same-Sex Marriage.

As set forth extensively in the Governors motion to dismiss, Pennsylvanias

Marriage Law does not violate the Full Faith and Credit Clause. Thus, this Court

should deny Plaintiffs motion for summary judgment and dismiss Plaintiffs

claims with prejudice. In so doing, the Court should soundly reject Plaintiffs


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attempt to allow the Commonwealth of Massachusetts to create policy and law for

the Commonwealth of Pennsylvania.

The Full Faith and Credit Clause of the U.S. Constitution art. IV, 1

provides that full faith and credit shall be given in each state to the public acts,

records, and judicial proceedings of every other state. However, the full faith

and credit clause is not an inexorable and unqualified command. It leaves some

scope for state control within its borders of affairs which are peculiarly its own.

Pink v. A.A.A. Highway Exp., 314 U.S. 201, 210 (1941); see also Pacific

Employers Ins. Co. v. Industrial Accident Commn, 306 U.S. 493, 501 (1939)

(Full Faith and Credit Clause does not require a State to apply another States law

in violation of its own legitimate policy.).

As set forth in the Governors opening brief, Pennsylvania (like all states) is

an individual sovereign that may make its own determinations when it comes to the

subject of marriage. Pennsylvania (through its General Assembly) has expressed

its public policy in defining marriage in the manner it has chosen. As such,

Pennsylvania cannot be required to follow decisions of other states in violation of

that policy.

Plaintiffs deny that they seek to require Pennsylvania to adopt Massachusetts

law. Doc. 27, p. 48. Yet Plaintiffs marriage cannot be recognized in the

Commonwealth without requiring Pennsylvania to do exactly that. Indeed,


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adopting Plaintiffs rigid and literal interpretation of the Full Faith and Credit

Clause would in essence create a license for a single state to create national policy.

Wilson v. Ake,354 F. Supp. 2d 1298 (M.D. Fla. 2005) (citingNevada v. Hall,440

U.S. 410, 423-24 (1979) (Full Faith and Credit does not enable one state to

legislate for the other or to project its laws across state lines so as to preclude the

other from prescribing for itself the legal consequences of acts within it.) (quoting

Pacific Employers Ins. Co., 306 U.S. at 501)).

The public policy espoused by the Pennsylvania General Assembly as

evidenced by the statute it passed in 1996 prohibits the recognition of same-sex

marriages. As such, the Full Faith and Credit Clause does not obligate

Pennsylvania to recognize a same-sex marriage performed in Massachusetts.

Additionally, Plaintiffs offer no colorable support for their argument that

they may utilize 1983 to vindicate their rights under the Full Faith and Credit

Clause and merely rely on general 1983 principles without connecting them in

any way to the Full Faith and Credit Clause itself. Plaintiffs cavalierly label the

Governors argument (that 1983 is not a viable vehicle for adjudicate their rights)

as unpersuasive based on nothing more than Plaintiffs disagreement with

established precedent. Doc. 27, p. 55 (The court [inAdar v. Smith] ignored the

plain meaning of the Full Faith and Credit Clause). Such unconvincing reasoning


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does not serve to refute the fact that 1983 does not provide a vehicle for

declaratory or injunctive relief based on the Full Faith and Credit Clause.

The U.S. Court of Appeals for the Fifth Circuit properly stated the nature of

the Full Faith and Credit Clause and the limited manner in which it may be

enforced. In Adar v. Smith, 639 F.3d 146, 151-52 (5thCir. 2011), the court said

this: [S]tate courts may err, but their rulings are not subject to declaratory or

injunctive relief in federal courts. If a forum fails to properly accord full faith and

credit to another states judgments, the forums decision is subject to review only

by the Supreme Court of the United States; it is not subject to review by inferior

federal courts under 1983. Id. In other words, theAdar court properly held,

1983 is simply not a legally viable means for compelling a states officials to

accord full faith and credit to the laws and legal relationships established in another

state. See id. at 153-57 (explaining in depth and at length why it is incoherent to

speak of vindicating full faith and credit rights against non-judicial state actors

under 1983).

In addition, while Plaintiffs recognize that the Supreme Court has

differentiated between the credit owed to public acts and laws and the credit owed

to judgments, Doc. 27, p. 46, Plaintiffs nonetheless wrongfully leap to the

conclusion without meaningful or cogent analysis that marriage certificates are

entitled to the same full faith and credit as judgments. Id. In so doing, Plaintiffs


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improperly compare a marriage certificate to a divorce decree or an adoption

decree, which are final judgments issued by a court, and disregard the case law in

which marriages were not recognized by a sister state for reasons of public policy.

For this reason as well, Plaintiffs Full Faith and Credit Clause arguments fail.

Finally, Plaintiffs Full Faith and Credit Clause arguments are foreclosed by

section 2 of the federal Defense of Marriage Act. That section of DOMA provides

that no State shall be required to give effect to any public act, record, or

judicial proceeding of any other State respecting a relationship between persons

of the same sex that is treated as a marriage under the laws of such other State. 28

U.S.C. 1738C. Section 2 of DOMA makes express what is already implied that

the Full Faith and Credit Clause does not require states that do not recognize same-

sex marriage to recognize same-sex marriages lawfully performed in other states.

As the Governor explained in his motion to dismiss, Plaintiffs challenge to

section 2 of DOMA under the Full Faith and Credit Clause fails because (1)

Congress actions are an appropriate exercise of its power to regulate conflicts

between the laws of two different States, in this case, conflicts over the validity of

same-sex marriages. Wilson, at 1303; and (2) this provision is an example of

Congress exercising its powers under the second sentence of the clause to prescribe

the effect that any public act, record or judicial proceeding of any other state

respecting a marriage of same-sex persons will have on the other states. Id.


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In Plaintiffs view, which notably is not based in any legal precedent,

Congress may by general laws prescribe the manner in which the acts, records,

and proceedings of a state shall be proved and given effect for purposes of full

faith and credit, but may not prescribe that the acts, records and proceedings of one

state shall be given no effect in another. See Doc. 1, 61;see also Doc. 27, p. 49.

The second sentence of the Full Faith and Credit Clause, however, expressly

empowers Congress to prescribe the [e]ffect to be accorded to the laws of a sister

state. See U.S. Const. art. IV, 1, cl. 2. This principle was embraced by the

Supreme Court inMills v. Duryee, 11 U.S. 481 (1813).

TheMillsdecision reads the effects provision not the first sentence of the

Full Faith and Credit Clause as conferring on Congress the broad power to give

a conclusive effect to the laws of another State. See also McElmoyle ex rel.

Bailey v. Cohen,38 U.S. 312 (1839) (the Court explained that historical records

accord limited significance to the first sentence of the clause and plenary power to

Congress to prescribe the substantive effects of a sister states law). Under

Plaintiffs interpretation, the second sentence would have no effect. Congress

would have no authority, and the Full Faith and Credit Clause essentially would be

interpreted as if it consisted only of its first sentence. This is contrary to what the

Framers of the Constitution envisioned when they created the Full Faith and Credit

Clause. Wilson,354 F. Supp. 2d at 1303.


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As the Supreme Court has repeatedly acknowledged, longstanding principles

of conflicts of law do not require a State to apply another States law in violation

of its own legitimate public policy. See, e.g.,Nevada,440 U.S. at 422. The Full

Faith and Credit Clause cannot be read to preclude Pennsylvania from applying

these established principles to its own requirements for the recognition of marriage

involving its own citizens.

Thus, even if this Court were to determine that section 2 of DOMA is

beyond Congresss authority, that determination would have no effect on

Pennsylvanias Marriage Law. With or without DOMA, the Full Faith and Credit

Clause does not compel Pennsylvania to define and recognize marriage according

to Massachusetts law, as fully analyzed above and in Defendants motion to

dismiss.

E. The Right to Travel protected by the Privileges and ImmunitiesClause is not Implicated in Circumstances Where a State Treats

New Citizens or Travelers the Same as it Treats Long-Time

Residents.

Plaintiffs have not cited any evidence to suggest what is absolutely required

to prevail under their asserted theory that Pennsylvanias Marriage Law was

enacted with the goal of discouraging anyone from moving to Pennsylvania. To

the contrary, Plaintiffs set forth as an undisputed fact that they moved to

Pennsylvania voluntarily nearly nine years ago so that Plaintiff Palladino could

take advantage of a rewarding career opportunity. Plaintiffs do not refute that


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For this reason and those more fully set forth in Defendants motion to

dismiss, Plaintiffs motion for summary judgment must be denied and the right-to-

travel claim must be dismissed.

V. PLAINTIFFS MOTION FOR SUMMARY JUDGMENTSHOULD BE DENIED.

Plaintiffs request for summary judgment must fail. Plaintiffs are not

entitled to summary judgment on their claims challenging the constitutionality of

Pennsylvanias Marriage Law because, simply stated, Pennsylvanias Marriage

Law does not violate either the Due Process Clause or Equal Protection Clause of

the 14thAmendment.

Plaintiffs assertion that they have a constitutional right to marry a person of

the same sex and to have that marriage recognized in Pennsylvania has no basis in

law. Plaintiffs reliance on United States v. Windsor is misplaced; Windsor

actually reaffirmed the rights of the various states to define and regulate matters of

domestic relations.

Because there is no fundamental right to same-sex marriage, because

members of the Pennsylvania General Assembly have articulated multiple state

interests that it has concluded are rationally related to the Pennsylvania Marriage

Law, and because neither the Full Faith and Credit Clause nor the right to travel as

set forth in the Privileges and Immunities Clause is implicated, Plaintiffs have


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failed to establish any constitutional violation. Consequently, Plaintiffs motion

for summary judgment should be denied.

A. Standard of ReviewSummary judgment is proper if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(c)(2). A factual dispute is material only if it might affect the

outcome of the case. Morales v. PNC Bank, N.A., C.A. No. 10-1368, 2012 U.S.

Dist. LEXIS 143605, *15 (E.D. Pa. Oct. 3, 2012) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be genuine, a reasonable

fact-finder must be able to return a verdict in favor of the non-moving party. Id.

On summary judgment, the moving party has the initial burden of

identifying evidence that it believes shows an absence of a genuine issue of

material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d

Cir. 2004). The court must consider the evidence, and all reasonable inferences

which may be drawn from it, in the light most favorable to the non-moving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v.

Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between

the evidence presented by both sides, the court must accept as true the allegations

https://www.lexis.com/research/buttonTFLink?_m=9fe44317e271b3683d4d22cefeb86a4d&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2012%20U.S.%20Dist.%20LEXIS%20143605%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=26&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b364%20F.3d%20135%2c%20145%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzk-zSkAW&_md5=ba2e5627ea3a8d71240059e1a7425a6fhttps://www.lexis.com/research/buttonTFLink?_m=9fe44317e271b3683d4d22cefeb86a4d&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2012%20U.S.%20Dist.%20LEXIS%20143605%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=26&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b364%20F.3d%20135%2c%20145%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzk-zSkAW&_md5=ba2e5627ea3a8d71240059e1a7425a6fhttps://www.lexis.com/research/buttonTFLink?_m=9fe44317e271b3683d4d22cefeb86a4d&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2012%20U.S.%20Dist.%20LEXIS%20143605%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=26&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b364%20F.3d%20135%2c%20145%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzk-zSkAW&_md5=ba2e5627ea3a8d71240059e1a7425a6fhttps://www.lexis.com/research/buttonTFLink?_m=9fe44317e271b3683d4d22cefeb86a4d&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2012%20U.S.%20Dist.%20LEXIS%20143605%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=26&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b364%20F.3d%20135%2c%20145%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzk-zSkAW&_md5=ba2e5627ea3a8d71240059e1a7425a6fhttps://www.lexis.com/research/buttonTFLink?_m=9fe44317e271b3683d4d22cefeb86a4d&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2012%20U.S.%20Dist.%20LEXIS%20143605%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=26&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b364%20F.3d%20135%2c%20145%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzk-zSkAW&_md5=ba2e5627ea3a8d71240059e1a7425a6f

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of the non-moving party, and all justifiable inferences are to be drawn in his

favor. Anderson, 477 U.S. at 255.

Based on the standards applicable to a motion for summary judgment, this

Court should deny Plaintiffs motion and instead grant Defendants motion to

dismiss.

B. Plaintiffs Have Failed to Meet Their Burden of Proof under 42U.S.C. 1983 Because Plaintiffs Have Failed to Prove State

Action that Involves the Governor.

Plaintiffs assert that their constitutional claims are actionable against the

defendants through 42 U.S.C. 1983. Section 1983 is an enabling statute that does

not create any substantive rights, but provides a remedy for the violation of federal

constitutional or statutory rights. Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir.

2000). To state a claim under 1983, a plaintiff must allege that a defendant, (i)

acting under color of state law, (ii) deprived plaintiff of a federal constitutional or

statutory right. Id.at 38. By its plain terms, therefore, 1983 requires that both

elements be proven in order to establish a viable claim.

To be liable for a 1983 violation, an individual defendant must have been

personally involvedin the deprivation of the plaintiffs rights. Robinson v. City of

Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997); Rode v. Dellarciprete, 845 F.2d

1195, 1207 (3d Cir. 1988). Allegations of personal involvement must be

demonstrated with particularity. Rode, at 1207 (holding that grievances actually


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reference a single concrete benefit or right that they have sought in Pennsylvania

and been denied as a result of Pennsylvanias Marriage Law. In fact, Plaintiffs

entire theory is predicated on the notion that the Marriage Law is self-enforcing,

Doc. 27, p. 18 which, by definition, undermines any claim that affirmative state

action has occurred or is occurring.7

Because Plaintiffs have failed to establish the existence of state action taken

by the Governor that has caused (or is causing) them harm, they have failed to

carry their burden of proving the Governors involvement in the alleged violation

of Plaintiffs rights. Consequently, Plaintiffs motion for summary judgment must

be denied and the Governors motion to dismiss granted.

C. The Fourteenth Amendment Does Not Require TheCommonwealth of Pennsylvania to Recognize Marriage Between

Persons of the Same Sex.

1. Baker v. Nelson Is a Binding Supreme Court Determination

that the Fourteenth Amendment Does Not Require States to

Recognize Same-Sex Marriage.

This case does not present a substantial federal question that this Court has

the authority to answer consistent with the U.S. Supreme Courts decision inBaker

7Section 1983 jurisprudence does not allow a plaintiff to sue the Governor simply

because she claims that there is no other individual the plaintiff could sue tovindicate her constitutional rights. Plaintiffs have named the Governor solely due

to his official position as the Commonwealths chief executive officer, not because

he has taken or is reasonably likely to take any specific action to enforce the

Marriage Law. Plaintiffs cannot sue the Governor as a default defendant, any morethan they can sue the Commonwealth itself in federal court.


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v. Nelson, 409 U.S. 810 (1972). In Baker, the Court held that a federal

constitutional challenge to a states ban on same-sex marriage does not present a

substantial federal question. This Court is bound byBaker. SeeDoc. 20, pp. 16-

23. In Baker, the Supreme Court summarily rejected the very claims made by

Plaintiffs in this case. This binding precedent, in and of itself, mandates dismissal

of Plaintiffs claims and denial of Plaintiffs motion for summary judgment.

Plaintiffs argue that Baker is not controlling for two reasons: (1) the legal

questions raised inBakerpurportedly are distinct from the legal issues raised here

since Plaintiffs seek recognition of their marriage from another state and not a

marriage license from the Commonwealth; and (2) Plaintiffs claim that changes in

Supreme Court doctrine undermine the continuing vitality ofBaker and, therefore,

it is no longer controlling.

First, while several of the underlying facts in this case may be distinct from

those inBaker,the legal issues certainly are not. As inBaker, Plaintiffs claim that

same-sex marriage is a fundamental right and Pennsylvanias definition of

marriage denies them equal protection. As in Baker, the question involved is a

states definition of marriage and whether a state statute defining marriage presents

a substantial federal question. Plaintiffs have offered no legal distinction that

would differentiate this case from the controlling precedent ofBaker.


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Second, as set forth at length in the Governors motion to dismiss, federal

courts throughout the country recognize that Baker is binding in cases involving

challenges to marriage laws. See Doc. 20, pp. 17-19. The summary dismissal of

an appeal for want of a substantial federal question operates as a decision on the

merits, Hicks v. Miranda, 422 U.S. 332, 344-45 (1975); so, unless and until the

Supreme Court instructs otherwise, lower courts are bound to adhere to the

Supreme Courts holding.

Plaintiffs argue that even if Baker could somehow be read to affect

Plaintiffs due process and equal protection claims, it is no longer controlling.

Doc. 27, p. 24 (quotingHicks, 422 U.S. at 344). But the Supreme Court has made

clear that deciding when a holding of the Court can be ignored because it has been

undercut by subsequent doctrinal changes is the exclusive province of the Supreme

Court. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).8

8 In Bostic v. Rainey, Civ. 2:13-cv-395, 2014 U.S. Dist. LEXIS 19080 (E.D. Va.

Feb. 13, 2014);Bishop v. United States ex rel. Holder, No. 04-CV-848, 2014 U.S.

Dist. LEXIS 4374 (N.D. Okla. Jan. 14, 2014) (appeal pending); and Kitchen v.

Herbert, No. 2:13-cv-217, 2013 U.S. Dist. LEXIS 179331 (D. Utah Dec. 20, 2013)

(appeal pending), the district courts concluded that intervening doctrinaldevelopments render Baker no longer controlling. Not only are none of these

decisions binding on this Court, those courts analyses of Bakerare erroneous fortwo reasons.

First, the district courts analyses overlook the fact that the determination as

to whether intervening doctrinal developments render a U.S. Supreme Court

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Plaintiffs further argue that Baker cannot be reconciled with Lawrence v.

Texas, 539 U.S. 558 (2003);Romer v. Evans, 517 U.S. 620 (1996); and Christian

Legal Soc. Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971 (2010).

Neither Romer nor Lawrence, however, addressed the constitutionality of state

marriage laws, and neither makes reference toBaker.

In Romer, marriage laws were not at issue; rather, that case involved the

elimination for gays and lesbians of all basic legal protections and rights of access

to the ordinary political process normally available to all people within Colorado.

That holding is far removed from the question of whether states must

fundamentally alter their definition of marriage to accommodate the interests and

preferences of same-sex couples.

It is also clear that federal courts have continued to follow Baker after

Lawrence. See Lawrence, 539 U.S. at 578 (cautioning that that decision does not

involve whether the government must give formal recognition to any relationship

that homosexual persons seek to enter); id. at 585 (OConnor, J., concurring)

decision no longer binding is within the sole province of the Supreme Court. Here,as set forth above, the Supreme Court in Windsordid not even mentionBaker let

alone overrule it. Further, as set forth at length in the Governors motion todismiss, other federal courts throughout the country have recognized thatBakeris

binding in cases involving challenges to marriage laws. SeeMassachusetts v. U.S.Dept of HHS, 682 F.3d 1 (1

stCir. 2012), cert. denied, 133 S. Ct. 2887 (2013);

Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012); and Sevcik v.Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012), appeal pending, No. 12-17668 (9

th

Cir.).


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(agreeing and explaining that other reasons exist to promote the institution of

marriage beyond mere moral disapproval of an excluded group).

Further, the Supreme Courts decision in Windsorcertainly does not inform

lower courts that they are no longer bound byBaker. In fact, the Supreme Court in

Windsor did not even mention Baker. Consequently, because this Court cannot

disregard and, indeed, is bound to follow the Supreme Courts decision in Baker,

Plaintiffs complaint does not present a substantial federal question over which this

Court may exercise jurisdiction and determine.

2. Pennsylvanias Marriage Law Does Not Violate Due Process

Or Equal Protection.

Even if Baker were not binding, Pennsylvanias Marriage Law passes the

rational basis test. The General Assembly has determined that the public policy

that it has adopted is rationally related to legitimate government interests,

including preservation of the traditional institution of marriage. Thus, contrary to

Plaintiffs arguments, Pennsylvanias Marriage Law does not violate the Due

Process or Equal Protection Clauses of the United States Constitution.

As set forth below, Plaintiffs, as a same-sex couple, have no fundamental

right to recognition of their same-sex marriage from another state. The right they

seek consists of an asserted liberty interest in marrying a person of the same sex

and having that marriage recognized by Pennsylvania. However, because same-


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sex marriage is not deeply rooted in American tradition, it does not rise to the level

of a liberty interest. Consequently, Plaintiffs due process claim fails.

Plaintiffs likewise have no valid equal protection claim. Any classification

implicated by Pennsylvanias Marriage Law is subject only to rational basis

scrutiny. As Plaintiffs implicitly concede, strict scrutiny does not apply because

same-sex marriage is not a fundamental right and Pennsylvanias Marriage Law

does not discriminate against a suspect class. Sexual orientation classifications are

not subject to intermediate or heightened scrutiny by the Supreme Court or in the

Third Circuit.

Plaintiffs further contend that section 2 of DOMA violates the Fifth

Amendment. See Doc. 27, p. 51. For all of the reasons discussed herein

explaining why Pennsylvania Marriage Law does not violate the Due Process and

Equal Protection Clauses of the Fourteenth Amendment, section 2 of DOMA does

not offend the Fifth Amendment.

For all of these reasons (described in detail below), when measured against

rational basis review, Pennsylvanias Marriage Law passes constitutional muster.

a. Same-Sex Marriage is not a Fundamental Right.Plaintiffs claim that Pennsylvanias Marriage Law violates the Due Process

Clause. Plaintiffs, however, have not identified a fundamental right implicated by

this statute. Hence, their claim must fail for this reason alone.


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Glucksberg, 521 U.S. at 720. Our Nations history, legal traditions, and practices

thus provide the crucial guideposts for responsible decision making and restrain

judicial exposition of the Due Process Clause. Id. at 721.

i. The Right to Marry Does Not Include the Right To

Marry a Person of the Same Gender.

Plaintiffs have failed to meet their burden of proof under the Glucksberg

standard. The careful description of an asserted fundamental right must be

precise, but neither too narrow nor overly broad. Glucksberg, 521 U.S. at 722-23.

Here, Plaintiffs asserted liberty interest is imprecisely and broadly

described at various times as: marriage is a fundamental right and choices

about marriage, like choices, about other aspects of family, are a central part of the

liberty protected by the Due Process Clause, Doc. No. 1, 79; and Plaintiffs

have the same constitutionally protected liberty interest in their family and marital

relationships. Doc. 27, p. 28.

It is undisputed that marriage as traditionally defined is a fundamental

right. See Loving v. Virginia, 388 U.S. 1, 12 (1967) (marriage is a fundamental

freedom that may not be restricted by invidious racial descriptions);

Glucksberg, 521 U.S. at 719 (citing Loving as establishing a fundamental right to

marry). However, Plaintiffs complaint goes further by alleging that the

Pennsylvania Marriage Law denies Plaintiffs and other same-sex couples of their

fundamental rights by refusing to recognize the marriages into which they entered


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in other States. Doc. No. 1, 84. So described, Plaintiffs asserted interest is

distinguishable from the Supreme Courts decisions affirming the right to marry, as

those decisions were premised on the underlying right of a man and a woman to

marry, not to have ones marriage in another state recognized in Pennsylvania

where such recognition would violate Pennsylvanias statutes and public policy.

In essence, Plaintiffs are asking this Court, in place of the legislature, to

extend the fundamental right to marry or create a new fundamental right. Plaintiffs

blur the line between what isthe law and what they believe the lawshould be. In

so doing, Plaintiffs have done nothing more than broadly and erroneously

conclude, without foundation, that the right they seek already exists. Plaintiffs thus

have failed to carefully define the fundamental right that they seek to have

recognized.

ii. Same-Sex Marriage Is Not Deeply Rooted in this

Nation's History and Tradition.

To be deemed a fundamental right, the right must be deeply rooted in this

Nations history and tradition and implicit in the concept of ordered liberty,

such that neither liberty nor justice would exist if they were sacrificed.

Washington, 521 U.S. at 720-21. Our Nations history, legal traditions, and

practices thus provide the crucial guideposts for responsible decision making and

restrain judicial exposition of the Due Process Clause. Id. at 721.


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The right of same-sex couples to marry is not deeply rooted in this Nations

history and tradition and, therefore, is not a fundamental right. Windsor, 133 S.

Ct. at 2689. It is beyond dispute that the right to same-sex marriage is not

objectively, deeply rooted in this Nations history and tradition. SeeIn re

Kandu, 315 B.R. 123, 140 (Bankr. W.D. Wash. 2004) ([U]ntil recent years, many

citizens had not even considered the possibility that two persons of the same sex

might aspire to marry.);Hernandez v. Robles, 855 N.E.2d 1, 9 (N.Y. 2006) (The

right to marry someone of the same sex, however, is not deeply rooted; it has not

even been asserted until relatively recent tim

Documents

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