UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ________________ No. 15-1186 ________________ ROSENBRAHN, et al., Plaintiffs-Appellees, v. DAUGAARD, et al., Defendants-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA, SOUTHERN DIVISION ________________ THE HONORABLE KAREN E. SCHREIER United States District Court Judge ________________ APPELLANTS’ BRIEF ________________ Jeffrey P. Hallem Ellie J. Bailey Assistant Attorneys General 1302 E. Highway 14, Suite 1 Pierre, SD 57501-8501 Telephone: (605) 773-3215 Attorneys for State Defendants- Appellants Robert B. Anderson Justin L. Bell May, Adam, Gerdes & Thompson, LLP 503 South Pierre Street, P.O. Box 160 Pierre, South Dakota 57501 Telephone: (605) 224-8803 Attorneys for Defendant-Appellant Sherman Appellate Case: 15-1186 Page: 1 Date Filed: 03/02/2015 Entry ID: 4249370
[Document: 00812622081] South Dakota's (Appellant) Brief
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UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
________________
No. 15-1186 ________________
ROSENBRAHN, et al., Plaintiffs-Appellees, v. DAUGAARD, et al., Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA, SOUTHERN DIVISION
________________
THE HONORABLE KAREN E. SCHREIER United States District Court Judge
________________
APPELLANTS’ BRIEF
________________
Jeffrey P. Hallem Ellie J. Bailey Assistant Attorneys General 1302 E. Highway 14, Suite 1 Pierre, SD 57501-8501 Telephone: (605) 773-3215 Attorneys for State Defendants-Appellants
Robert B. Anderson Justin L. Bell May, Adam, Gerdes & Thompson, LLP 503 South Pierre Street, P.O. Box 160 Pierre, South Dakota 57501 Telephone: (605) 224-8803
PAGE SUMMARY OF THE CASE AND STATEMENT WITH REGARD TO ORAL ARGUMENT ................................................... i TABLE OF AUTHORITIES ............................................................... iv JURISDICTIONAL STATEMENT ...................................................... 1 STATEMENT OF ISSUES ................................................................ 2 STATEMENT OF THE CASE AND FACTS ........................................ 3 SUMMARY OF THE ARGUMENT .................................................... 9 STANDARD OF REVIEW ................................................................. 9 ARGUMENTS I. The district court erred in asserting jurisdiction over
Plaintiffs’ claims by failing to apply the Tenth Amendment and the domestic relations exception to federal question jurisdiction. ........................................................................... 10
II. The district court erred in failing to follow binding precedent set forth in Baker v. Nelson, 409 U.S. 810 (1972) and Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). ..................................................................... 15
III. The district court erred in concluding that Plaintiffs have a fundamental right to same-sex marriage. ............................... 22
IV. The district court erred in holding that South Dakota laws impermissibly deny Plaintiffs’ alleged right to same-sex marriage in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. .................. 27
CONCLUSION .............................................................................. 38 CERTIFICATE OF COMPLIANCE .................................................. 39 CERTIFICATE OF SERVICE .......................................................... 40
FEDERAL CASES CITED: Andrus ex rel. Andrus v. Arkansas, 197 F.3d 953 (8th Cir. 1999) .. 10 Ankenbrandt v. Richards, 504 U.S. 689 (1992) ............................. 13 Armour v. City of Indianapolis, 132 S.Ct. 2073 (2012) ................... 32 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ............................. 17 Baker v. Nelson, 409 U.S. 810 (1972) .................................... passim Baskin v. Bogan, 766 F.3d 648 (7th Cir. 20140) ........................... 23 Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) ........................... 23 Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) ........................... 23 Bourke v. Beshear, ___ U.S. ___, 2015 WL 213651 (January 16, 2015) ..................................................................... 20 Christiansen v. West Branch Cmty. Sch. Dist., 674 F.3d 927 (8th Cir. 2012) ............................................................................ 36 Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) ............................................... passim City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ........ 30 City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) ......... 30 Collins v. City of Harker Heights, 503 U.S. 115 (1992) ................... 36 Conde-Vidal v. Garcia-Padilla, 2014 WL 5361987 (P.R. Oct. 21, 2014) .................................................................... 20
Dandridge v. Williams, 397 U.S. 471 (1970) .................................. 29 DeBoer v. Snyder, ___ U.S. ___, 2015 WL 213650 (January 16, 2015) ..................................................................... 20 DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) ..................... passim Doe v. Hodgson, 478 F.2d 537 (2d Cir. 1973) ................................ 17 Elk Grove Unified School District v. Newdow, 542 U.S. 1, (2004) ................................................................ 13, 14 Ex parte Burrus, 136 U.S. 586 (1890) ....................................... 2, 13 F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) .................... 30 Gallagher v. City of Clayton, 699 F.3d 1013 (8th Cir. 2012) .......... 37 Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003) . 22 Gregory v. Ashcroft, 501 U.S. 452 (1991) ...................... 2, 11, 29, 35 Haddock v. Haddock, 201 U.S. 562 (1906).................................... 12 Heller v. Doe by Doe, 509 U.S. 312 (1993) ..................................... 32 Hicks v. Miranda, 422 U.S. 332 (1975).......................................... 17 Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) ............................... 18 Hood v. United States, 342 F.3d 861 (8th Cir. 2003) ..................... 17 Iowa Right to Life Comm., Inc. v. Tooker, 717 F.3d 576 (8th Cir. 2013) ............................................................................ 29 Kansas City Taxi Cab Drivers Ass’n v. City of Kansas City, Mo., 742 F.3d 807 (8th Cir. 2013) ...................................................... 37
Plaintiffs filed a complaint against Defendants in their official
capacities challenging the constitutionality of South Dakota’s
marriage laws at S.D. Const. Article 21, Sec. 9 and SDCL Title 25.
APP 8-56. The purported basis for the district court’s subject
matter jurisdiction is federal question pursuant to 28 U.S.C. §
1331.
The Honorable Karen E. Schreier, United States District
Judge for the District of South Dakota, Southern Division, entered
an order on November 14, 2014, granting in part and denying in
part Defendants’ motion to dismiss. APP 138-65. On January 12,
2015, Judge Schreier entered an order and judgment granting
Plaintiffs’ motion for summary judgment and denying Defendants’
motion for summary judgment. APP 276-305. Defendants filed a 1 Plaintiffs-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 hereafter collectively referred to as “Plaintiffs.” Defendants-Appellants, Dennis Daugaard, Marty Jackley, Kimberly Malsam-Rysdon, Trevor Jones, and Carol Sherman, are hereafter collectively referred to as “Defendants.” References to documents in the Joint Appendix are cited as “APP,” followed by the appropriate page designation. References to individual district court docket entries are cited as “Doc.” followed by the corresponding docket number.
timely Notice of Appeal on January 26, 2015. APP 306-07. This
Court has jurisdiction pursuant to 29 U.S.C. § 1291.
STATEMENT OF ISSUES
I. Whether the district court erred in asserting jurisdiction over Plaintiffs’ claims by failing to apply the Tenth Amendment and the domestic relations exception to federal question jurisdiction? The district court determined the Tenth Amendment did not bar Plaintiffs’ constitutional challenges. The district court further determined the domestic relations exception applied only to diversity jurisdiction, not federal question jurisdiction. Gregory v. Ashcroft, 501 U.S. 452 (1991) Ex parte Burrus, 136 U.S. 586 (1890) U.S. v. Crawford, 115 F.3d 1397 (8th Cir. 1997)
II. Whether the district court erred in concluding it was not bound by Baker v. Nelson, 409 U.S. 810 (1972) and Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006)? The district court determined that doctrinal developments by the United States Supreme Court rendered Baker without precedential value. The district court further determined it was not bound by Bruning because Bruning did not extend its holding to include that there is no fundamental right to same-sex marriage. Baker v. Nelson, 409 U.S. 810 (1972)
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006)
III. Whether the district court erred in concluding that Plaintiffs have a fundamental right to same-sex marriage? The district court determined there is a fundamental right to marriage, and accordingly that marriage cannot be broken down into “sub-rights” depending on the individuals attempting to exercise that right. Washington v. Glucksberg, 521 U.S. 702 (1997) DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)
IV. Whether the district court erred in holding that South Dakota laws impermissibly deny Plaintiffs’ alleged right to same-sex marriage in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment? The district court concluded that South Dakota marriage laws violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)
STATEMENT OF THE CASE AND FACTS
Procedural History
On May 22, 2014, Plaintiffs, six same-sex couples residing in
South Dakota, filed a three-count complaint alleging that South
Dakota marriage laws deprived them of their constitutional rights
to equal protection, due process, and travel. APP 8-56. Plaintiffs
sought injunctive and declaratory relief. APP 54-55. Named
Defendants are state and county officials sued in their official
capacities.2 APP 32-35.
On June 17, 2014, Defendants moved the district court to
dismiss all claims. APP 58-60. On July 3, 2014, Plaintiffs moved
for summary judgment. APP 61-62. Defendants requested they be
allowed to defer their answer and response to Plaintiffs’ motion for
summary judgment until the district court ruled on Defendants’
pending motion to dismiss. Doc. 28. The district court granted
Defendants’ request. APP 136.
The district court heard oral argument regarding the motion
to dismiss on October 17, 2014. APP 137. On November 14,
2 Dennis Daugaard is South Dakota Governor. Marty Jackley is South Dakota Attorney General. Kimberly Malsam-Rysdon is South Dakota Secretary of Health; Malsam-Rysdon was substituted for Defendant Doneen Hollingsworth by Order of this Court on February 12, 2015. Trevor Jones is South Dakota Secretary of Public Safety. Carol Sherman is the Brown County Register of Deeds (the County in which four plaintiffs reside). Plaintiffs voluntarily dismissed Defendant Donna Mayer, Pennington County Register of Deeds, on June 16, 2014. APP 57.
2008) (“We review constitutional issues de novo.”). The district
court’s partial denial of Defendants’ motion to dismiss is similarly
reviewed de novo. Andrus ex rel. Andrus v. Arkansas, 197 F.3d
953, 955 (8th Cir. 1999) (“We review the District Court’s denial of
defendants’ motion to dismiss de novo.”).
ARGUMENTS
I The district court erred in asserting jurisdiction over Plaintiffs’ claims by failing to apply the Tenth Amendment and the domestic relations exception to federal question jurisdiction.
While it is clear many other federal courts have accepted
jurisdiction over same-sex marriage cases, they have almost
entirely done so without questioning their jurisdiction – even
though the Supreme Court dismissed an appeal of a constitutional
challenge to a same-sex marriage prohibition “for want of a
substantial federal question” in Baker v. Nelson, 409 U.S. 810
(1972).3 Plaintiffs’ claims lie outside the jurisdiction of the federal
court under both the Tenth Amendment of the United States
Constitution and the domestic relations exception to federal 3 Appellees in Baker presented the domestic relations exception to the Supreme Court in their briefing.
question jurisdiction. Therefore, the district court erred in
asserting jurisdiction over Plaintiffs’ claims.
The U.S. Constitution “establishes a system of dual
sovereignty between the States and the Federal Government.”
Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). The Supreme Court
has stated:
This federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry.
Id. at 458. Federalism, protected by the Tenth Amendment,
“preserves the integrity, dignity, and residual sovereignty of the
States[,]” while it “secures to citizens the liberties that derive from
the diffusion of sovereign power.” Shelby Cnty., Ala. v. Holder, 133
S.Ct. 2612, 2623 (2013) (citation omitted).
Under this system of dual sovereignty, the states have the
power and authority to define marriage. The Supreme Court
almost 150 years ago recognized this state authority in Pennoyer v.
Neff, 95 U.S. 714, 734-35 (1877) (“The State . . . has absolute right
[W]hile rare instances arise in which it is necessary to answer a substantial question that transcends or exists apart from the family law issue, . . . in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the State courts. . . . When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than to reach out to resolve a weighty question of constitutional law.
Newdow, 542 U.S. at 13, 17. Lexmark, which abrogated Newdow,
did not address either the domestic relations exception or
jurisdiction in general; as a result, it did not abrogate Newdow’s
application of the domestic relations exception. One must also
conclude the Supreme Court applied this doctrine in Baker.
Baker, 409 U.S. 810 (1972).
This Court recognized the domestic relations exception to
federal court jurisdiction in Lannan v. Maul, 979 F.2d 627 (8th Cir.
1992), holding that the domestic relations exception did not apply
to contract actions arising out of a divorce. In Wallace v. Wallace,
736 F.3d 764 (8th Cir. 2013), this Court found no federal court
jurisdiction over a tort claim associated with a state divorce
proceeding under the domestic relations exception. In U.S. v.
Crawford, 115 F.3d 1397 (8th Cir. 1997), this Court held the
federal Child Support Recovery Act did not interfere with state
domestic relations laws, and therefore the domestic relations
exception did not apply. Unlike Crawford, Plaintiffs’ claims here
directly interfere with state marriage laws.
There is 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.
II
The district court erred in failing to follow binding precedent set forth in Baker v. Nelson, 409 U.S. 810 (1972) and Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006).
The district court erred in finding it was not bound by Baker
v. Nelson, 409 U.S. 810 (1972) and Citizens for Equal Protection v.
Bruning, 455 F.3d 859 (8th Cir. 2006). To side-step this binding
precedent, the district court analyzed Baker and Bruning
separately, distinguishing each case on an individual basis. APP
145-58, 293 n.10. These cases, however, do not stand in isolation.
In failing to consider the cases together, the district court
the subject of marriage and divorce.” Windsor, 133 S.Ct. at 2691
(citations omitted). The “lawful marriages” referenced in Windsor,
are those marriages made lawful by state authorization of same-
sex marriage. Windsor, 133 S.Ct. at 2696-97. South Dakota has
not made the legislative choice of New York, the residence of the
Windsor Plaintiffs, to authorize same-sex marriage. As a result,
the holding of Windsor does not apply here. This was underscored
by Chief Justice Roberts:
I think it more important to point out that [the majority’s] analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their ‘historic and essential authority to define the marital relation’, ante, at 2692, may continue to utilize the traditional definition of marriage.
Windsor, 133 S.Ct. at 2696 (Roberts, C.J., dissenting); see also
Windsor, 133 S.Ct. at 2709 (Scalia, J., dissenting) (“State and
lower federal courts should take the Court at its word and
distinguish away.”); Windsor, 133 S.Ct. at 2720 (Alito, J.,
dissenting) (“To the extent that the Court takes the position that
the question of same-sex marriage should be resolved primarily at
the state level, I wholeheartedly agree.”). The majority in Windsor
expressed no disagreement with the dissents on this point.
4 As this Court is aware, the United States Supreme Court granted certiorari in Obergell v. Hodges, ___ U.S. ___, 2015 WL 213646 (January 16, 2015); Tanco v. Haslam, ___ U.S. ___, 2015 WL 213648 (January 16, 2015); DeBoer v. Snyder, ___ U.S. ___, 2015 WL 213650 (January 16, 2015); and Bourke v. Beshear, ___ U.S. ___, 2015 WL 213651 (January 16, 2015).
heterosexual nature: “The limitation of lawful marriage to
heterosexual couples . . . for centuries had been deemed both
necessary and fundamental[.]” Windsor, 133 S.Ct. at 2689
(emphasis added). Accordingly, the district court’s reliance on the
aforementioned Supreme Court case law to support the alleged
fundamental right to same-sex marriage is misplaced and
necessitates reversal by this Court.
IV
The district court erred in holding that South Dakota laws impermissibly deny Plaintiffs’ alleged right to same-sex marriage in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Equal Protection
The district court erred in applying heightened scrutiny to
conclude that South Dakota marriage laws violate the Equal
Protection Clause.6 In addition to finding a fundamental right, the
district court relied on Windsor to boot strap its holding of a
6 The following argument applies both to the State’s marriage laws, and to State law that prohibits the recognition of same-sex marriages performed in another state. See DeBoer, 772 F.3d at 418 (“If it is constitutional for a State to define marriage as a relationship between a man and a woman, it is also constitutional for the state to stand by that definition with respect to couples married in other States or countries.”).
By creating a status (marriage) and by subsidizing it (e.g. with tax-filing privileges and deductions), the States create an incentive for two people who procreate together to stay together for purposes of rearing off-spring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring.
DeBoer, 772 F.3d at 405; see also Robicheaux, 2 F.Supp.3d at 919.
While some persons marry after child-bearing years, or enter
into a marriage without intending to have children, the State does
not have to draw perfect lines in creating a class. See Armour v.
City of Indianapolis, 132 S.Ct. 2073, 2083 (2012) (“[T]he
Constitution does not require the [State] to draw the perfect line
nor even to draw a line superior to some other line it might have
drawn. It requires only that the line actually drawn be a rational
line.”); Heller v. Doe by Doe, 509 U.S. 312, 321 (1993) (stating that
“courts are compelled under rational-basis review to accept a
legislature’s generalizations even when there is an imperfect fit
between means and ends”). These minority situations do not, in
and of themselves, mean that the legislative generalization is
improper. The classification of heterosexual couples, the couples
most likely to procreate, promotes the State’s goal of preventing