15-1186 - south dakota plaintiffs' brief

8/9/2019 15-1186 - South Dakota Plaintiffs' Brief

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No. 15-1186

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

______________________JENNIE and NANCY ROSENBRAHN, et al.,

Plaintiffs-Appellees,

v.

DENNIS DAUGAARD, in his official capacity as South Dakota Governor, et al.,

Defendants-Appellants.

______________________

On Appeal from the United States District Court for the District of South Dakota

United States District Court Judge Karen E. Schreier | No. 14-CV-4081-KES

______________________

APPELLEES’ BRIEF

______________________

Joshua A. Newville Debra M. Voigt

Counsel of Record BURD AND VOIGT LAW OFFICE

MADIA LAW LLC 601 South Cliff Avenue, Ste A333 Washington Ave. N., #345 Sioux Falls, SD 57104

Minneapolis, Minnesota 55401 Tel: 605.332.4351

Tel: 612.349.2743 | Fax: 612.235.3357 [email protected]

[email protected]

Shannon P. Minter Kylie M. Riggins

Christopher F. Stoll VIKEN AND R IGGINS LAW FIRM

NATIONAL CENTER FOR LESBIAN R IGHTS 4200 Beach Drive, #4

870 Market St., #370 Rapid City, SD 57702San Francisco, California 94102 Tel: 605.721.7230

Tel: 415.392.6257 | Fax: 415.392.8442 [email protected]

[email protected]

Attorneys for Appellees

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SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT

Appellees adopt Appellants’ summary of the case and agree that this case

presents important issues warranting oral argument. In light of the exceptional

importance of the constitutional issues presented for review, and the severity of the

ongoing harms imposed upon same-sex couples and their families by South

Dakota’s marriage bans, Appellees respectfully request at least twenty minutes for

oral argument.

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CORPORATE DISCLOSURE STATEMENT

Appellees Jennie Rosenbrahn, Nancy Rosenbrahn, Jeremy Coller, Clay

Schweitzer, Lynn Serling-Swank, Monica Serling-Swank, Krystal Cosby, Kaitlynn

Hoerner, Barbara Wright, Ashley Wright, Greg Kniffen, and Mark Church are each

individual persons. None of the appellees are corporations; nor are they

subsidiaries or affiliates of a corporation. Upon information and belief, no publicly

traded corporation has a financial interest in the outcome of this appeal.

Dated: March 19, 2015 __/s/ Joshua A. Newville __

Joshua A. Newville

MADIA LAW LLC

333 Washington Ave. N., #345

Minneapolis, Minnesota 55401

Tel: 612.349.2743 | Fax: 612.235.3357

[email protected]

Counsel for Plaintiffs

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TABLE OF CONTENTS

SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT .................... i

CORPORATE DISCLOSURE STATEMENT ........................................................ ii

TABLE OF CONTENTS ........................................................................................ iii

TABLE OF AUTHORITIES ................................................................................... vi

STATEMENT OF JURISDICTION ........................................................................ 1

STATEMENT OF ISSUES ...................................................................................... 1

STATEMENT OF THE CASE ................................................................................ 1

I. THE PROCEDURAL HISTORY OF THIS CASE ......................................... 1

II. THE HISTORY OF THE CHALLENGED LAWS IN THIS CASE .............. 2

III. THE APPELLEES IN THIS CASE ................................................................ 3

SUMMARY OF THE ARGUMENT ....................................................................... 7

STANDARD OF REVIEW ...................................................................................... 9

ARGUMENT ............................................................................................................ 9

I. GOVERNMENT LAWS REGULATING MARRIAGE MUST COMPLY

WITH CONSTITUTIONAL PROTECTIONS. .................................................... 9

A. The Tenth Amendment Does Not Legitimate Discriminatory State Marriage

Schemes ............................................................................................................ 10

B. The Domestic Relations Exception Does Not Deprive This Court Of

Jurisdiction ........................................................................................................ 12

II. NEITHER BAKER NOR BRUNING RESOLVE THE QUESTIONS

PRESENTED BY THIS CASE, NOR, IN LIGHT OF INTERVENEING

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SUPREME COURT PRECEDENT, INCLUDING WINDSOR, PROVIDE A

BASIS FOR UPHOLDING SOUTH DAKOTA’S MARRIAGE BANS ........... 13

A. Baker v. Nelson Does Not Bar Plaintiffs’ Claims. ..................................... 14

B. Citizens v. Bruning Does Not Bar Plaintiffs’ Claims ................................. 17

III. SOUTH DAKOTA’S MARRIAGE BANS VIOLATE APPELLEES’

CONSTITUTIONAL GUARANTEE OF DUE PROCESS ................................ 22

A. The Constitutional Right To Marry Belongs To The Individual. ............... 22

B. Same-Sex Couples Share Equally In The Fundamental Right To Marry ... 24

C. Loving v. Virginia Supports Plaintiffs’ Claims .......................................... 24

D. Lawrence v. Texas and U.S. v. Windsor Support Plaintiffs’ Claims ......... 26

IV. SOUTH DAKOTA’S MARRIAGE BANS VIOLATE APPELLEES’

CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION. .................. 29

A. The Marriage Bans Explicitly and Purposefully Discriminate on the Basis

of Sexual Orientation. ....................................................................................... 30

B. The Marriage Bans Deny Plaintiffs Equal Protection Of The Laws On the

Basis Of Gender ................................................................................................ 31

C. South Dakota’s Marriage Bans Violate Equal Protection Under The

Heightened Scrutiny Required by Windsor ...................................................... 35

D. A Finding Of Animus Is Sufficient, But Not Necessary, To Find South

Dakota’s Marriage Bans And Anti-Recognition Laws Unconstitutional ......... 38

E. South Dakota’s Marriage Bans And Anti-Recognition Laws Cannot Survive

Traditional Rational Basis Review ................................................................... 43

1. “Promoting Heterosexual Procreation” .................................................... 43

2. “Proceeding With Caution And Saving Public Funds” ............................ 45

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3. “Deference To The Political Process” ...................................................... 47

V. SOUTH DAKOTA’S MARRIAGE BANS INTERFERE WITH THE

MARRIED PLAINTIFFS’ FUNDAMENTAL RIGHT TO REMAIN MARRIED

48

A. History of South Dakota’s Recognition Laws. ........................................... 49

B. South Dakota’s Anti-Recognition Laws Violate the Fundamental Right to

Stay Married And To Respect For Existing Marital Relationships .................. 52

C. South Dakota’s Anti-Recognition Laws Violate The Married Plaintiffs’

Right To Equal Protection Of The Laws. ......................................................... 54

CONCLUSION....................................................................................................... 56

CERTIFICATION OF WORD COUNT COMPLIANCE ..................................... 57

CERTIFICATION OF ELECTRONIC SUBMISSION & SERVICE ................... 58

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TABLE OF AUTHORITIES

CASES

Andrus ex rel. Andrus v. Arkansas, 197 F.3d 953 (8th Cir. 1999) ........................... 9Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ............................................................... 2

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

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ................................................... 15

Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) ............................................ 8, 12, 47

Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) .......................... 42

Bond v. United States, 131 S. Ct. 2355 (2011) ....................................................... 10

Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014) ......................................... 47

Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) ......................................... 2, 11, 47

Bowers v. Hardwick, 478 U.S. 186 (1986) ....................................................... 24, 25

Califano v. Westcott, 443 U.S. 76 (1979) ............................................................... 35

Campaign for S. Equal. v. Bryant, 2014 WL 6680570 (S.D. Miss. Nov. 25, 2014)

.............................................................................................................................. 49

Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) ......... passim

City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ........................ 39

Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) ...................................... 23

Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998) .............................................. 28

Craig v. Boren, 429 U.S. 190 (1976) ...................................................................... 21

DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014) ................................... 46

F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307 (1993) .......................................... 21Frontiero v. Richardson, 411 U.S. 677, 688 (1973) ............................................... 16

Garcia v. Garcia, 25 S.D. 645, 127 N.W. 586 (1910) ................................. 42, 50, 51

Ginters v. Frazier, 614 F. 3d 822 (8th Cir. 2010) ................................................... 21

Griswold v. Connecticut, 381 U.S. 479 (1965) .......................................... 23, 49, 54

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Hall v. Florida, 134 S. Ct. 1986 (2014) .................................................................. 10

Hicks v. Miranda, 422 U.S. 332 (1975) .................................................................. 15

Hodgson v. Minnesota, 497 U.S. 417 (1990) ......................................................... 24

In re Estate of Duval, 777 N.W.2d 380 (S.D. 2010) ............................................... 50

In re Lenherr’s Estate, 314 A.2d 255 (Pa. 1974) .................................................... 51

J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127 (1994) ............................................ 32

Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.)………………………………..passim

Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) ................... 11, 32, 43, 47

Latta v. Otter, 771 F.3d 456, 474 (9th Cir. 2014) ......................................... 2, 12, 20

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

Llapa-Sinchi v. Mukasey, 520 F.3d 897 (8th Cir. 2008) .......................................... 9

Loving v. Virginia, 388 U.S. 1 (1967) ............................................................. passim

M.L.B. v. S.L.J., 519 U.S. 102 (1996) .................................................................... 53

Madewell v. United States, 84 F. Supp. 329 (E.D. Tenn. 1949) ............................ 51

Mandel v. Bradley, 432 U.S. 173 (1977) ................................................................ 14

Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987) ................................................. 22

Novotny v. Tipp County, 664 F.3d 1173 (8th Cir. 2011) ......................................... 9

Orr v. Orr, 440 U.S. 268 (1979) ............................................................................. 35

Perry v. Brown, 725 F.3d 1140 (9th Cir. 2013) ...................................................... 25

Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) .................... 25, 32

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ............................................... 25

Plyler v. Doe, 457 U.S. 202 (1982) ........................................................................ 48

Powers v. Ohio, 499 U.S. 400 (1991) ..................................................................... 33

Reed v. Reed, 404 U.S. 71 (1971) .......................................................................... 35

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .................................................. 29, 53

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

SmithKline Bch. Corp. v. Abbott Lbs., 740 F.3d 471 (9th Cir. 2014) ....... 20, 21, 36

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Sosna v. Iowa, 419 U.S. 393 (1975) ....................................................................... 11

Stanton v. Stanton, 421 U.S. 7 (1975) .................................................................... 35

T.L. ex rel. Ingram v. United States, ...................................................................... 22

Turner v. Safley, 482 U.S. 78 (1987) .............................................................. passim

U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) ................................... 39

U.S. v. Virginia, 518 U.S. 515 (1996) .................................................................... 35

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

Vill. of Ar. Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ........... 41, 42

Vill. Of Willowbrook v. Olech, 528 U.S. 562 (2000) ............................................ 43

W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) .......................................... 12

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

Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) .................................. passim

Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir. 2008) ....................................... 20

Young v. Hayes, 218 F.3d 850 (8th Cir. 2000) ...................................................... 22

Zablocki v. Redhail, 434 U.S. 374 (1978) .............................................................. 26

STATUTES & STATE CONSTIUTIONAL PROVISIONS

S.D. Codified Laws § 25-5-3 .................................................................................... 6

S.D. Codified Laws § 25-5-7 .................................................................................... 6

S.D. Codified Laws § 25-7-30 .................................................................................. 6

S.D. Codified Laws § 25-1-1…………………………………………………...3, 31

S.D. Codified Laws § 25-1-38 ...................................................................... 3, 31, 52

S.D. Const. Art. XXI § 9…………………………………………………………. 31

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OTHER AUTHORITIES

Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the

U.S. House of Representatives, United States v. Windsor, 133 S. Ct. 2675 (2013)

(No. 12-307), 2013 WL 267026 .......................................................................... 38

Luther L. McDougal, III et al.,

American Conflicts Law 713 (5th ed. 2001) ....................................................... 51

William M. Richman & William L. Reynolds,

Understanding Conflict of Laws 398 (3d ed. 2002) ............................................ 51

U.S. CONSTITUTIONAL PROVISIONS

U.S. Const., Amend. XIV ................................................................................. 10, 30

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STATEMENT OF JURISDICTION

Because this matter is on appeal from final judgment by the United States

District Court for the District of South Dakota, this Court has jurisdiction pursuant

to Title 28 U.S.C. § 1291.

STATEMENT OF ISSUES

The issues presented in this case are whether the district court correctly

found that South Dakota laws that deny same-sex couples the rights to marry and

prohibit recognition of their lawful out-of-state marriages (hereinafter referred to

as South Dakota’s “marriage bans”) violate the Due Process and Equal Protections

Clauses of the Fourteenth Amendment to the United States Constitution.

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

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

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

Loving v. Virginia, 388 U.S. 1 (1967)

STATEMENT OF THE CASE

I. THE PROCEDURAL HISTORY OF THIS CASE

Appellees adopt Appellants’ statement of procedural history for this case,

found at pages 3–5 of Appellants’ brief.

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II. THE HISTORY OF THE CHALLENGED LAWS IN THIS

CASE

In 1996, legislators in South Dakota introduced House Bill 1143, which

amended the definition of marriage under South Dakota law, adding the limitation

that marriage be only “between a man and a woman.” APP 266. 1 House Bill 1143

was passed by both houses of the South Dakota legislature and signed into law. Id.

This change was motivated, at least in part, by the prospect that Hawaii would

permit same-sex couples to marry following the Supreme Court of Hawaii’s

decision in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). See APP 065 (stating that

the legislation was necessary because of “events in Hawaii.”).

In 2000, legislators introduced House Bill 1163, which amended South

Dakota’s longstanding rule that legal marriages contracted in other states are

recognized and treated as valid in South Dakota as well. House Bill 1163 altered

that longstanding rule to provide that all valid out-of-state marriages will be

recognized “except a marriage contracted between two persons of the same

gender.” APP 267–268. House Bill 1163 was passed by both houses of the South

Dakota legislature and signed into law. Id.

In 2006, “Amendment C,” a measure that would add to the South Dakota

Constitution a provision prohibiting same-sex couples from marrying was

1 References to documents in the Joint Appendix are cited as “APP ___”;

References to individual district court docket entries are “Doc. __”;

References to Appellants’ Brief are “AB __”

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approved by both houses of the South Dakota legislature and placed on the 2006

general election ballot. See APP 066 (2006 Ballot Question Pamphlet). The

documentation that accompanied the 2006 ballot included the statement that

“marriage is a union between one man and one woman and that the State of South

Dakota should not recognize any other kind of ‘marriage.’” APP 066. On

November 7, 2006, the proposed amendment was approved by 52% of South

Dakota voters and was adopted. S.D. SEC. OF STATE, Ballot Question Titles and

Election Returns 1890-2010, at 20, available at https://sdsos.gov/elections-

voting/assets/BallotQuestions1890-2010.pdf (last visited March 11, 2015).

Amendment C did not just ban marriage for same-sex couples; it also prohibited

the Legislature from allowing civil unions, domestic partnerships, or any other

kind of legal relationship between same-sex couples.

This action challenges the above-referenced laws, including South Dakota

Codified Laws § 25-1-1, SDCL § 25-1-38, and Article 21, § 9 of the South Dakota

Constitution, and any other provision of South Dakota law that precludes persons

from marrying or being afforded all of the benefits and obligations of marriage, or

that refuses or refuses to recognize an existing marriage, solely because the

individuals are of the same gender.

III. THE APPELLEES IN THIS CASE

Appellees Jennie and Nancy Rosenbrahn, Jeremy Coller and Clay

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Schweitzer, Lynn and Monica Serling-Swank, Krystal Cosby and Kaitlynn

Hoerner, Barbara and Ashley Wright, and Greg Kniffen and Mark Church are all

loving, committed, same-sex couples. See APP 122–134 ¶¶ 11-12, 19-20, 25, 30,

36, 42.

Krystal Cosby and Kaitlynn Hoerner wish to marry in South Dakota. APP

122–134 ¶¶ 34-35. They are similarly situated in all relevant respects to different-

sex couples who wish to marry in the State. But for the fact that they are same-sex

couples, they would be permitted to marry there.

Jennie and Nancy Rosenbrahn, Barbara and Ashley Wright, Greg Kniffen

and Mark Church, Jeremy Coller and Clay Schweitzer, and Lynn and Monica

Serling-Swank are legally married under the laws of other States. APP 122–134 ¶¶

12, 23, 27, 39, 43. They wish to have their marriages recognized in South Dakota.

APP 122–134 ¶¶ 18, 24, 28, 40, 44. They are similarly situated in all relevant

respects to different-sex couples whose validly contracted out-of-state marriages

are recognized in South Dakota. But for the fact that they are same-sex couples,

South Dakota would regard their marriages as valid in the State.

All Appellee couples are harmed by South Dakota’s refusal to allow them to

marry or to recognize their existing marriages. APP 122–134 ¶ ¶¶ 13-14, 16-18,

22, 24, 28-29, 33-34, 39-41, 44. They are denied the state law protections and

obligations that are accorded to different-sex married couples. Id. Krystal and

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Kaitlynn and their child are also denied all federal spousal protections and

obligations, and the married Plaintiffs are denied those federal spousal protections

and obligations that are reserved to couples whose marriages are recognized in

their state of residence.

Declarations of each of the Appellee couples are located in the Joint

Appendix at APP 067–116, describing their life experiences and their desire to

marry and create legally recognized families in their homes in South Dakota. These

Appellees are all active and contributing members of their respective communities,

who are entitled to enjoy the same fundamental rights as other members of the

community.

Appellees’ Declarations also describe some of the many burdens they have

faced due to their inability to marry. For example, Plaintiffs Barbara (“Barb”) and

Ashley Wright almost suffered a devastating harm as a result of the marriage bans.

Barb and Ashley were expecting a child after the commencement of this case in

Fall 2014. APP 122–134 ¶ 36. Under the law as it stood then (and stands now)

South Dakota refused to recognized, pursuant to South Dakota’s presumption of

legal parentage for children born to married couples. See S.D. Codified Laws. §§

25-5-3; 25-7-30; 25-5-7; see also APP 122–134 ¶ 36. And although adoption

would be unnecessary if Barb and Ashley’s marriage were recognized, under South

Dakota law, Barb was unable even to adopt the child as a stepparent. APP 122–134

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¶ 36. If not for having their baby—prematurely—in Minnesota, Barb and Ashley

would have been, and still could be, deprived of access to the same legal

protections of their parental relationship with their child that are available to other

married couples, for no other reason than that they are the same sex. Id.

Indeed, Plaintiffs Krystal Cosby and Kaitlynn Hoerner are also currently

experiencing these very harms, as their child was born in South Dakota in 2014.

They were crushed to learn that, because they are unable to marry, South Dakota

would not allow Kaitlynn to be listed as one of their daughter’s parents on the birth

certificate. APP 122–134 ¶ 33. The only option for the couple is go through the

onerous, expensive, and uncertain process of attempting to obtain an adoption to

allow Kaitlynn to be recognized as a legal parent of their child. Id.

The harms caused by the marriage bans affect virtually every aspect of the

plaintiffs’ lives, not only depriving them of critical legal protections, but subjecting

them to daily humiliations. For example, Plaintiffs Jennie and Nancy Rosenbrahn,

who are 73 and 69 years old, respectively, and have been together as a committed

couple for over 30 years, were finally able to marry in Minnesota on April 26,

2014. APP 122–134 ¶¶ 11-12. To celebrate their marriage, they decided to take the

married name “Rosenbrahn,” a combination of both of their maiden names. On

May 8, 2014, they went to obtain updated South Dakota driver’s licenses that

reflected the new last name appearing on their marriage certificate, as other

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married couples may do. APP 122–134 ¶ 17. Instead of receiving updated licenses,

they were handed a form stating that marriage certificates for same-sex couples

will not be accepted in support of a name change application. APP 077. This

treatment of Jennie and Nancy by the state reflects the humiliation and stigma

imposed on same-sex couples by South Dakota’s discriminatory marriage laws.

Every day, Appellees experience the daily stigma and injury of being treated as

inferior to other families and, for those raising children, of knowing that South

Dakota law teaches their children and grandchildren that their family is unworthy

of dignity and respect. APP 122–134 ¶¶ 13, 18, 24, 28-29, 33, 39, 44.

SUMMARY OF THE ARGUMENT

Like the Defense of Marriage Act (“DOMA”), South Dakota’s marriage

bans target same-sex couples and their families for discriminatory treatment on the

basis of gender and sexual orientation. As a recent and overwhelming majority of

state and federal courts have recognized, the United States Constitution does not

allow government—state or federal—to deny individuals in same-sex relationships

the liberty and equality guaranteed by the Fourteenth Amendment.2 Appellants

argue that principles of federalism and precedent excluding certain types of

2 See, e.g., Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); Baskin v. Bogan, 766 F.3d

648 (7th Cir.), cert denied, 135 S. Ct. 316 (2014); Bostic v. Schaefer, 760 F.3d 352

(4th Cir.), cert denied, 135 S. Ct. 308 (2014); Bishop v. Smith, 760 F.3d 1070

(10th Cir.), cert denied, 135 S. Ct. 271 (2014); Kitchen v. Herbert, 755 F.3d 1193

(10th Cir.), cert denied, 135 S. Ct. 265 (2014).

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domestic relations questions from consideration by federal courts legitimate the

challenged laws and deprive the Court of jurisdiction. But the Supreme Court has

never hesitated to invalidate state laws that unconstitutionally burden the right to

marry. As the Supreme Court confirmed in in Windsor, “state laws defining and

regulating marriage . . . must respect the constitutional rights of persons.” 133 S.

Ct. at 2691.

Appellants’ attempted reliance on Baker v. Nelson, 409 U.S. 810 (1972),

and Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) is

equally unavailing. Baker and Bruning cannot be reconciled with the Supreme

Court’s majority opinion in Windsor, which expressly held that discrimination

against same-sex couples with respect to marriage requires “careful consideration.”

Windsor, 133 S. Ct. at 2693.

A state violates the Due Process Clause both when it deprives individuals of

the right to marry and when it refuses to recognize a couple’s legal marriage

simply because the spouses are of the same sex. Such laws violate the Equal

Protection Clause as well, by singling out persons based on their sexual orientation

and gender in order to exclude them from legal protection. Like the federal law

struck down in Windsor, such laws are based on disapproval of gay and lesbian

persons rather than on a legitimate governmental interest. None of the asserted

rationales for South Dakota’s marriage bans can survive even rational basis

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review—much less the heightened levels of scrutiny required by binding Supreme

Court precedent.

STANDARD OF REVIEW

On appeal, this Court reviews, de novo, both a district court’s grant of

summary judgment and a denial of a motion to dismiss. Novotny v. Tipp County,

664 F.3d 1173, 1176 (8th Cir. 2011); Andrus ex rel. Andrus v. Arkansas, 197 F.3d

953, 955 (8th Cir. 1999). Constitutional issues are also reviewed de novo. Llapa-

Sinchi v. Mukasey, 520 F.3d 897, 900 (8th Cir. 2008).

ARGUMENT

I. GOVERNMENT LAWS REGULATING MARRIAGE MUST

COMPLY WITH CONSTITUTIONAL PROTECTIONS.

Appellants argue that the district court erred by failing to hold that the Tenth

Amendment and the domestic relations exception deprives federal courts of

jurisdiction over challenges to South Dakota’s marriage ban. See AB 10–15.

Appellants base this argument primarily upon Windsor, which they interpret as

endorsing the view that states have exclusive authority over marriage. AB 12

(citing Windsor for the proposition that the Tenth Amendment reserves those

authorities [over marriage] entirely to the states.”). For the reasons explained

below, the district court properly held that state laws regulating marriage must

comport with constitutional guarantees of due process and equal protection and

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that neither principles of federalism nor the domestic relations exception deprive

federal courts of jurisdiction of this matter.

A.

The Tenth Amendment Does Not LegitimateDiscriminatory State Marriage Schemes

Federalism does not empower a State government to violate the individual

rights secured by the Fourteenth Amendment. See U.S. Const., Amend. XIV (“nor

shall any State deprive any person of life, liberty, or property, without due process

of law.”). “Rather, federalism secures to citizens the liberties that derive from the

diffusion of sovereign power.” New York v. United States, 505 U.S. 144, 181

(1992).

While the States may be laboratories for experimentation, their regulation of

domestic relations does not authorize them to disregard “the basic dignity the

Constitution protects.” Hall v. Florida, 134 S. Ct. 1986, 2001 (2014). Furthermore,

“[b]y denying any one government complete jurisdiction over all the concerns of

public life, federalism protects the liberty of the individual from arbitrary power.”

Bond v. United States, 131 S. Ct. 2355, 2364 (2011). Properly understood,

“[f]ederalism secures the freedom of the individual.” Id.

Appellants cite Windsor to supports their federalism argument; however,

“Windsor is actually detrimental to their position. Although the Court emphasizes

States’ traditional authority over marriage, it acknowledged that state laws defining

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and regulating marriage, of course, must respect the constitutional rights of

persons.” Bostic v. Schaefer, 760 F.3d 352, 378–379 (4th Cir. 2014) (internal

citations and quotations omitted). Thus, the “virtually exclusive province” of the

States to regulate domestic affairs is always “subject to those guarantees.”

Windsor, 133 S. Ct. 2675 at 2680 (quoting Sosna v. Iowa, 419 U.S. 393, 404

(1975) and citing Loving v. Virginia, 388 U.S. 1 (1967), as an example of state

marital regulation gone constitutionally awry).

For this reason, “the Supreme Court has not hesitated to invalidate state laws

pertaining to marriage whenever such a law intrudes on an individual's protected

realm of liberty.” Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1198 (D. Utah 2013)

aff'd, 755 F.3d 1193 (10th Cir. 2014) cert. denied, 135 S. Ct. 265 (2014).

Numerous courts addressing state marriage bans like those challenged here have

reaffirmed the unremarkable proposition that the State’ prerogatives are

subordinate to federal constitutional protections and have concluded that

“considerations of federalism cannot carry the day for defendants.” Latta v. Otter,

771 F.3d 456, 474 (9th Cir. 2014). As the Seventh Circuit held, that limitation is

definitional of our constitutional democracy: “Minorities trampled on by the

democratic process have recourse to the courts; the recourse is called constitutional

law.” Baskin v. Bogan, 766 F.3d 648, 671 (7th Cir. 2014) cert. denied, 135 S. Ct.

316 (2014) and cert. denied sub nom. Walker v. Wolf, 135 S. Ct. 316 (2014).

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Appellants’ contention that a 52% majority of South Dakota voters and their

elected representatives enacted the statutory and constitutional bans at question in

this litigation, AB 35, falters for the same reasons. “One’s right to life, liberty, and

property, to free speech, a free press, freedom of worship and assembly, and other

fundamental rights may not be submitted to vote; they depend on the outcome of

no elections.” W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

B. The Domestic Relations Exception Does Not Deprive This

Court Of Jurisdiction

Because this matter arises under the United States Constitution and Title 42

U.S.C. § 1983, the district court had federal question jurisdiction pursuant to 28

U.S.C. § 1331. Appellants’ argue that there is a “domestic relations exception” to

such jurisdiction that the district court failed to apply. AB 13–15. Both the

Supreme Court and the Eighth Circuit have made clear, however, that such an

exception applies only to diversity jurisdiction and “covers only a narrow range of

domestic relations issues” including “divorce, alimony, and child custody decrees.”

Marshall v. Marshall, 547 U.S. 293, 307–308 (2006) (citing Ankenbrandt v.

Richards, 504 U.S. 689, 703–704 (1992)) (internal quotations and citations

omitted); United States v. Crawford, 115 F.3d 1397, 1401–02 (8th Cir. 1997)

(same).

Without any citation or support of any kind, Appellants assert that “[t]here is

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no question that marriage falls into the ‘domestic relations’ category; indeed, it is

the preceding condition that leads to divorce, alimony, and child support.

Accordingly, the district court erred in asserting jurisdiction over Plaintiffs’

claims.” AB15. Essentially, Appellants’ argument is that, simply because this case

arises in the context of marriage, it must be a purely domestic-relations issue

covered by the domestic-relations exception to federal diversity jurisdiction. But,

that argument simply cannot be squared with the Supreme Court’s history of

striking down state marriage laws that unconstitutionally burden or deny the right

to marry. See, e.g., Loving, 388 U.S. 1; Zablocki v. Redhail, 434 U.S. 374 (1978);

Turner v. Safley, 482 U.S. 78 (1987).

Neither principles of federalism nor the domestic relations exception

legitimate South Dakota’s marriage bans. Whatever authority the federal system

confers on the States to regulate marriage, and whatever authority states enact via

popular vote, it must be exercised within the constitutional limits imposed by the

Fourteenth Amendment.

II. NEITHER BAKER NOR BRUNING RESOLVE THE

QUESTIONS PRESENTED BY THIS CASE, NOR, IN LIGHT

OF INTERVENEING SUPREME COURT PRECEDENT,INCLUDING WINDSOR, PROVIDE A BASIS FOR

UPHOLDING SOUTH DAKOTA’S MARRIAGE BANS

Neither Baker nor Bruning resolve the constitutional questions presented by

this case. Moreover, in light of Windsor and other intervening Supreme Court case

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law, neither can legitimate the challenged marriage bans and anti-recognition laws

in light of intervening Supreme Court precedent, including Windsor. In particular,

Windsor made clear that laws that discriminate against same-sex couples must be

given at least “careful consideration” and confirmed the Supreme Court’s prior

recognition that same-sex couples have a constitutionally protected right to enter

into intimate relationships and that such relationships are entitled to equal dignity.

A. Baker v. Nelson Does Not Bar Plaintiffs’ Claims.

Baker does not control here because this case does not involve “the precise

issues presented and necessarily decided” in Baker. Mandel v. Bradley, 432 U.S.

173, 176 (1977). At the time Baker was decided, same-sex couples were not

permitted to marry in any state, and no state had enacted a law denying recognition

to same-sex couples married in other jurisdictions. Therefore, Baker did not

address the constitutionality of measures like South Dakota’s anti-recognition

laws.

Further, unlike the marriage bans at issue here, the Minnesota law at issue in

Baker lacked “an express statutory prohibition against same-sex marriages.” Baker

v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971). In contrast, South Dakota’s

marriage bans clearly, unequivocally, and intentionally exclude same-sex couples

from marriage, and refuse to recognize valid marriages between people of the same

sex entered into in other jurisdictions. A law of this kind “raise[s] the inevitable

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inference that the disadvantage imposed is born of animosity toward the class of

persons affected.” Romer, 517 U.S. at 624. The Baker court did not have occasion

to consider the issues raised by such a law, and thus does not preclude the district

court from having doing so, nor preclude this Court from doing so now. Appellants

acknowledge that the Supreme Court, in Hicks v. Miranda, 422 U.S. 332 (1975),

states that, “if the Court has branded a question as unsubstantial, it remains so

except when doctrinal developments indicate otherwise[.]” Id. at 344 (emphasis

added). See AB 17. To say that intervening doctrinal developments have limited

Baker’s precedential effect regarding the issues in this case would be an

understatement.

First, the year after Baker was decided, the Supreme Court held that

classifications based on sex must, like race and national origin, be subjected to

heightened judicial scrutiny. See Frontiero v. Richardson, 411 U.S. 677, 688

(1973); Craig v. Boren, 429 U.S. 190, 218 (1976) (Rehnquist, J. dissenting)

(identifying the Court’s scrutiny of sex-based classifications as “intermediate”).

The lower court’s holding in Baker appeared to rest on the premise that the

marriage ban was a classification based on sex. See Baker, 191 N.W.2d at 187

(distinguishing Loving and holding that “in commonsense and in a constitutional

sense, there is a clear distinction between a marital restriction based merely upon

race and one based upon the fundamental difference in sex”).

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Second, in 1996, the Supreme Court in Romer held that a Colorado state

constitutional amendment imposing a disadvantage on gay and lesbian people and

“born of animosity” lacked any rational relation to a legitimate governmental

purpose. 517 U.S. at 634-35 (“We must conclude that Amendment 2 classifies

homosexuals not to further a proper legislative end but to make them unequal to

everyone else.”).

Third, in 2003, the Supreme Court decided Lawrence, concluding that two

adults of the same sex were free under the Constitution to engage in intimate

sexual conduct “in the confines of their homes and their own private lives and still

retain their dignity as free persons.” 539 U.S. at 567. The Court found that “[w]hen

sexuality finds overt expression in intimate conduct with another person, the

conduct can be but one element in a personal bond that is more enduring. The

liberty protected by the Constitution allows homosexual persons the right to make

this choice.” Id. Further, the Court held that “the fact that the governing majority in

a State has traditionally viewed a particular practice as immoral is not a sufficient

reason for upholding a law prohibiting the practice.” Id. at 577 (internal quotations

omitted).

Fourth, in 2013, the Supreme Court held in Windsor that the federal

government could not treat the state-sanctioned marriages of same-sex couples

differently from the state-sanctioned marriages of different-sex couples for

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purposes of federal protections and obligations based on marital status. 133 S. Ct.

at 2694. The Court found that this differential treatment “demeans the couple,

whose moral and sexual choices the Constitution protects.” Id.

Fifth, since Windsor, a significant majority of courts across the country to

consider the issues have found bans identical to South Dakota’s to be invalid. As

the Tenth Circuit concluded, “it is clear that doctrinal developments foreclose the

conclusion that the issue is, as Baker determined, wholly insubstantial.” Kitchen,

755 F.3d 1193, 1208.

In light of these dramatic doctrinal developments, it is not surprising that

most of the courts to consider the issue since Windsor have concluded that Baker

no longer has precedential force. See, e.g., Windsor v. United States, 699 F.3d 169,

178-79 (2d Cir. 2012) (“Even if Baker might have had resonance for Windsor’s

case in 1971, it does not today. . . . In the forty years after Baker, there have been

manifold changes to the Supreme Court’s equal protection jurisprudence.”), aff’d

133 S. Ct. 2675 (2013).

B. Citizens v. Bruning Does Not Bar Plaintiffs’ Claims

Appellants contend that the decision in Bruning, which rejected a challenge

to Nebraska’s state constitutional amendment targeting same-sex couples, requires

dismissal of Appellees’ claims. However, Bruning did not resolve the

constitutional questions at issue in this case and, in any event, its analysis has been

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superseded by the Supreme Court’s intervening decision in Windsor.

The plaintiffs in Bruning advanced narrow and distinct claims under

constitutional theories entirely different than those advanced by the Plaintiffs-

Appellees here. The Bruning plaintiffs claimed that Nebraska’s constitutional

amendment impermissibly “raise[d] an insurmountable political barrier to same-

sex couples” Bruning, 455 F.3d 859, 865. Unlike the claim asserted by the

Appellees here, the plaintiffs in Bruning did “not assert a right to marriage or

same-sex unions,” and thus did not assert the due process and equal protection

claims asserted by the Appellees, including the claim that same-sex couples have a

fundamental right to marry and that laws that exclude them from marriage

discriminate based on sexual orientation and gender require heightened equal

protection scrutiny. Id.

Also, unlike 10 of the 12 Appellees here, none of the plaintiffs in Bruning

were legally married same-sex couples seeking recognition of their marriages.

Therefore, the Court in Bruning did not consider or address the distinct equal

protection and due process claims brought by the married Plaintiffs-Appellees in

this case. In sum, the Bruning decision is neither binding nor instructive

concerning the due process and equal protection issues now before this Court, and

did not even touch upon the constitutional claims brought by the married

Appellees.

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Appellants’ reliance on Bruning also disregards crucial developments in the

Supreme Court’s equal protection and due process jurisprudence regarding same-

sex couples since Bruning was decided. Since Bruning was decided, the Supreme

Court held that laws that discriminate against same-sex couples in the context of

marriage require “careful consideration” and rejected the very same procreation-

related rationales considered by this Court in Bruning, concluding that they were

inadequate to justify treating same-sex couples and their children unequally. See

Windsor, 133 S. Ct. at 2696.

In 2006, this Court acknowledged that, in order to determine the appropriate

level of scrutiny for classifications based on sexual orientation, “the most relevant

precedents [were] murky.” Bruning, 455 F.3d at 865–66 (emphasis added). After

Windsor, however, it is plain that at least some form of heightened scrutiny is

required. For example, in 2008, the Ninth Circuit reached a similar conclusion to

the Bruning court in Witt v. Dep't of Air Force, 527 F.3d 806, 821 (9th Cir. 2008),

concluding that barring further pronouncement by the Supreme Court, it would

apply rational basis review to equal protection claims involving classifications

based on sexual orientation. Id. Then, in 2014, the Ninth Circuit recognized in

SmithKline v. Abbott Labs, 740 F.3d 471, 480 (9th Cir. 2014), that Windsor

significantly changed the landscape, and indeed was “dispositive of the question of

the appropriate level of scrutiny.” As the Ninth Circuit observed, “[i]n its words

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and its deed, Windsor established a level of scrutiny for classifications based on

sexual orientation that is unquestionably higher than rational basis review. In other

words, Windsor requires that heightened scrutiny be applied to equal protection

claims involving sexual orientation.” Id. at 481. The Ninth Circuit then went on to

strike down marriage bans and anti-recognition laws using the same heightened

scrutiny applied in Windsor. See Latta v Otter, 771 F.3d 456 (9th Cir. 2014).

As the Ninth Circuit correctly held, the Supreme Court’s analysis in

Windsor compels the conclusion that the Supreme Court applied a heightened form

of scrutiny. The most basic difference between the rational basis test and any form

of heightened scrutiny concerns which party in the constitutional litigation carries

the burden of persuasion regarding the constitutionality of a challenged law.3

Under rational basis review, the plaintiffs challenging a law have the burden of

showing that the law’s classification does not serve any legitimate governmental

interest. Under that test, courts consider post-hoc rationalizations and hypothetical

justifications. Heightened scrutiny of any form, on the other hand, puts the burden

on the government. As explained by the court in SmithKline, the Supreme Court in

Windsor applied heightened scrutiny because it did not presume that DOMA was

valid, but rather held that no justifications were sufficient to “overcome” the harms

it imposed. Windsor, 133 S. Ct. at 2696. Appellants’ repeated citations to the

3 Compare F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 314-15 (1993) with

Craig v. Boren, 429 U.S. 190, 197-99 (1976).

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dissenting opinions in Windsor improperly disregard what the Windsor majority

actually did, as well as the Court’s express statement that such laws require

“careful consideration.” See SmithKline, 740 F.3d at 480 (noting the importance of

“considering what the Court actually did” in determining the level of scrutiny

applied in Windsor.) (internal citations and quotations omitted).

It is well settled in this circuit that when the Supreme Court rules in a

manner that contravenes the Eighth Circuit’s analysis in a prior case, both Eighth

Circuit panels and district courts must follow the intervening Supreme Court

decision. Ginters v. Frazier, 614 F. 3d 822, 829 (8th Cir. 2010) (subsequent

Supreme Court rulings implicitly may abrogate established Eighth Circuit

analysis); T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960 (8th Cir. 2006)

(holding same and recognizing that it is “well settled”); Young v. Hayes, 218 F.3d

850 (8th Cir. 2000) (rebuking district court for simply applying appellate precedent

without taking into account intervening Supreme Court precedent announcing due

process right); Nichols v. Rysavy, 809 F.2d 1317, 1328 (8th Cir. 1987).

In light of this Court’s statement in Bruning that “the relevant precedents

[were] murky,” and in light of this its obligation to consider intervening decisions

of the Supreme Court, this Court should apply the same careful consideration

applied in Windsor to South Dakota’s marriage bans and anti-recognition laws.

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III. SOUTH DAKOTA’S MARRIAGE BANS VIOLATE

APPELLEES’ CONSTITUTIONAL GUARANTEE OF DUE

PROCESS

The Due Process Clause of the Fourteenth Amendment protects individuals

from arbitrary governmental intrusion into fundamental rights. Washington v.

Glucksberg, 521 U.S. 702, 719-20 (1997). Under that guarantee, when government

burdens the exercise of a right deemed to be fundamental, the government must

show that the intrusion “is supported by sufficiently important state interests and is

closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388. South

Dakota’s marriage bans do not comport with these requirements. They deprive

Appellees and other same-sex couples of the fundamental right to marry without

serving any legitimate, much less sufficiently important, state interests.

A. The Constitutional Right To Marry Belongs To The

Individual.

It is beyond dispute that the freedom to marry is a fundamental right

protected by the Due Process Clause. See, e.g., Turner v. Safley, 482 U.S. 78, 95

(1987) (“[T]he decision to marry is a fundamental right,” and marriage is an

“expression[] of emotional support and public commitment.”); Zablocki, 434 U.S.

at 384 (“The right to marry is of fundamental importance for all individuals.”);

Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (“This Court has

long recognized that freedom of personal choice in matters of marriage and family

life is one of the liberties protected by the Due Process Clause of the Fourteenth

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Amendment.”); Loving, 388 U.S. at 12 (“The freedom to marry has long been

recognized as one of the vital personal rights essential to the orderly pursuit of

happiness by free men.”); Griswold v. Connecticut, 381 U.S. 479, 486 (1965)

(“Marriage is a coming together for better or for worse, hopefully enduring, and

intimate to the degree of being sacred. It is an association that promotes a way of

life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not

commercial or social projects. Yet it is an association for as noble a purpose as any

involved in our prior decisions.”).

While states have a legitimate interest in regulating and promoting marriage,

the fundamental right to choose one’s spouse belongs to the individual. “[T]he

regulation of constitutionally protected decisions, such as where a person shall

reside or whom he or she shall marry, must be predicated on legitimate state

concerns other than disagreement with the choice the individual has made.”

Hodgson v. Minnesota, 497 U.S. 417, 435 (1990). South Dakota’s marriage bans

impermissibly deprive Appellees of that protected choice, denying them the

fundamental right to marry the person with whom each has chosen to build a life, a

home, and a family.

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B. Same-Sex Couples Share Equally In The Fundamental

Right To Marry

Appellees seek to exercise the same fundamental right to marry that all

individuals enjoy, not recognition of a new right to “same-sex marriage.”

Appellants’ attempt to frame Appellees’ case as advocating for a new fundamental

right to marry someone of the same sex misses the point of the Supreme Court’s

marriage jurisprudence. Indeed, the argument that same-sex couples seek to

exercise a “new” right rather than the same right historically exercised by others

makes the same mistake that the Supreme Court made in Bowers v. Hardwick, 478

U.S. 186 (1986), and corrected in Lawrence. In a challenge by a gay man to

Georgia’s sodomy statute, the Bowers Court recast the right at stake from a right,

shared by all adults, to consensual intimacy with the person of one’s choice, to a

claimed “fundamental right” of “homosexuals to engage in sodomy.” Lawrence,

539 U.S. at 566-67 (quoting Bowers, 478 U.S. at 190). In overturning Bowers, the

Lawrence Court held that its constricted framing of the issue in Bowers “fail[ed] to

appreciate the extent of the liberty at stake,” Lawrence, 539 U.S. at 567. The same

is true of Appellants’ improper description of the asserted liberty interest here.

C.

Loving v. Virginia Supports Plaintiffs’ Claims

While it is true that the Supreme Court “protects those fundamental rights

and liberties that are, objectively, deeply rooted in this Nation’s history and

tradition . . . and implicit in the concept of ordered liberty,” Glucksberg, 521 U.S.

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at 720-21 (internal quotations and citations omitted), the Supreme Court has not

limited the scope of such rights based on historical patterns of discrimination.

In Loving, the court did not defer to the historical exclusion of mixed-race

couples from marriage. “[N]either history nor tradition could save a law

prohibiting miscegenation from constitutional attack.” Lawrence v. Texas, 539

U.S. 558, 577 (2003) (internal quotations and citations omitted). “Instead, the

Court recognized that race restrictions, despite their historical prevalence, stood in

stark contrast to the concepts of liberty and choice inherent in the right to marry.”

Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 992 (N.D. Cal. 2010), appeal

dismissed sub nom. Perry v. Brown, 725 F.3d 1140 (9th Cir. 2013). See also

Planned Parenthood v. Casey, 505 U.S. 833, 847–48 (1992) (“Interracial marriage

was illegal in most States in the 19th century, but the Court was no doubt correct in

finding it to be an aspect of liberty protected against state interference by the

substantive component of the Due Process Clause”).

Appellants misconstrue Loving, arguing that “[t]he district court’s reliance

on Loving v. Virginia, 388 U.S. 1 (1967), is misplaced,” and that “Loving is not

applicable here because it addressed a racial restriction, not the fundamental right

to marriage.” AB 25. However, the Supreme Court itself has explicitly rejected this

notion. Zablocki, 434 U.S. at 384. Indeed, the Supreme Court has never defined the

right to marry by reference to those permitted to exercise that right. The Supreme

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Court’s decisions address “the fundamental right to marry,” see Loving, 388 U.S.

at 12, Turner, 482 U.S. at 94-96, Zablocki, 434 U.S. at 383–86—not “the right to

interracial marriage,” “the right to inmate marriage,” or “the right of people owing

child support to marry.” Kitchen 755 F.3d 1193, 1211.

D. Lawrence v. Texas and U.S. v. Windsor Support Plaintiffs’

Claims

Similarly, the Supreme Court’s jurisprudence on sexual orientation has

consistently invalidated laws that discriminate against same-sex couples and has

confirmed that same-sex relationships are entitled to equal protection under the

law. In Lawrence v. Texas, 539 U.S. at 558, the Supreme Court held that lesbian

and gay people have the same protected liberty and privacy interests in their

intimate personal relationships as heterosexual people. Id. at 578. The Court

explained that decisions about such relationships “‘involv[e] the most intimate and

personal choices a person may make in a lifetime, choices central to personal

dignity and autonomy,’” and that “[p]ersons in a homosexual relationship may

seek autonomy for these purposes, just as heterosexual persons do.” Id. at 574

(citation omitted).

In Windsor, the Court powerfully reaffirmed the “equal dignity” of same-sex

couples’ relationships in the context of federal recognition of marriages, noting

that the right to intimacy recognized in Lawrence “can form ‘but one element in a

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personal bond that is more enduring.’” Windsor, 133 S. Ct. at 2693, 2692 (quoting

Lawrence, 539 U.S. at 567). Appellants misconstrue Windsor, arguing that “[t]he

Windsor holding was based on federalism,” and that it “specifically acknowledged

the fundamental nature of marriage, in fact, was its heterosexual nature: ‘the

limitation of lawful marriage to heterosexual couples . . . for centuries had been

deemed both necessary and fundamental.’” AB 26–27 (quoting Windsor, 133 S.

Ct. at 2689) (emphasis in original). The complete sentence from which Appellants

extract their quote reads: “The limitation of lawful marriage to heterosexual

couples, which for centuries had been deemed both necessary and fundamental,

came to be seen in New York and certain other States as an unjust exclusion.”

Windsor, 133 S. Ct. at 2689 (emphasis added). While the question of whether

same-sex couples have the right to marry was not before the Court in Windsor, the

Courts’ analysis strongly suggests that South Dakota’s exclusion of same-sex

couples from the freedom to marry burdens their right to due process, just as did

the federal government’s refusal to recognize the lawful marriage of same-sex

couples under DOMA. Indeed, the Supreme Court has made clear that “history and

tradition are the starting point but not in all cases the ending point of the

substantive due process inquiry,” Lawrence v. Texas, 539 U.S. 558, 572 (2003)

(quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 857 (1998)), and “times can

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blind us to certain truths and later generations can see that laws once thought

necessary and proper in fact serve only to oppress.” Id. at 579.

Like the federal Defense of Marriage Act, South Dakota’s bans burden the

lives of same-sex couples “by reason of government decree, in visible and public

ways . . . from the mundane to the profound,” and make “it even more difficult for

the children to understand the integrity and closeness of their own family and its

concord with other families in their community and in their daily lives.” Windsor,

133 S. Ct. at 2694. The bans “also bring [. . . ] financial harm to children of same-

sex couples,” id. at 2695, by denying their families a multitude of benefits that the

State and federal governments offer to spouses and their children.

Moreover, excluding the Appellee couples and other South Dakota same-sex

couples from marriage undermines the core constitutional values and principles

that underlie the fundamental right to marry. The freedom to marry is protected by

the Constitution precisely because the intimate relationships a person forms, and

the decision whether to formalize such relationships through marriage, implicate

deeply held personal beliefs and core values. Roberts v. U.S. Jaycees, 468 U.S.

609, 619-620 (1984). Permitting the government, rather than individuals, to make

such decisions about who can marry imposes an intolerable burden on individual

dignity and self-determination.

As stated in the Complaint and in the lower court declarations, Appellees

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wish to exercise that fundamental freedom for the same reasons different-sex

couples seek it, including the stability and protection that it will bring to their

children. APP 008–055, 067–116. They want their children and grandchildren to

know that their family has the same status and recognition that other families

enjoy. Two of the Appellee couples are currently raising children, as are many

other same-sex couples across South Dakota. Some of the Appellee couples,

including the Rosenbrahns, have grandchildren. Each Appellee couple has

demonstrated their commitment to one another, built stable families together, and

contributed to their communities, and they yearn to participate in this deeply

valued and cherished institution, which confers important legal rights and

obligations. They seek to be treated as equal, respected, and participating members

of society who—like others—are able to marry the person of their choice.

IV. SOUTH DAKOTA’S MARRIAGE BANS VIOLATE

APPELLEES’ CONSTITUTIONAL GUARANTEE OF EQUAL

PROTECTION.

The Equal Protection Clause of the Fourteenth Amendment provides that

“[n]o State . . . [shall] deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. Amend. XIV, § 1. In addition to violating the

Due Process clause, South Dakota’s marriage bans also violate the Equal

Protection Clause because they discriminate on the basis of sexual orientation and,

independently, because they discriminate on the basis of gender both by classifying

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individuals based on their gender and by subjecting individuals to impermissible

sex stereotyping.

A.

The Marriage Bans Explicitly and PurposefullyDiscriminate on the Basis of Sexual Orientation.

Under Windsor, laws that purposefully disadvantage same-sex couples are

subject to “careful consideration” and must be closely examined to determine

whether any legitimate purpose overcomes the harm imposed on such couples and

their children. Windsor, 133 S. Ct. at 2693. In other words, Windsor requires that

heightened scrutiny be applied to laws that purposefully discriminate on the basis

of sexual orientation.

Laws that restrict marriage or marriage recognition to opposite-sex couples

purposefully discriminate based on sexual orientation, as the U.S. Supreme Court

and numerous other courts have recognized. See Windsor, 133 S. Ct. at 2693

(noting that DOMA’s discrimination against married same-sex couples reflects

“disapproval of homosexuality”); Windsor v. United States, 699 F.3d 169, 181 (2d

Cir. 2012) (analyzing DOMA as discriminating against gay and lesbian people).

Here, on their face, South Dakota’s marriage bans intentionally single out

same-sex couples for adverse treatment on the basis of sexual orientation. The bans

state:

1) “Only marriage between a man and a woman shall

be valid or recognized in South Dakota. The

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uniting of two or more persons in a civil union,

domestic partnership, or other quasi-marital

relationship shall not be valid or recognized in

South Dakota.” S.D. Const. Art. XXI, § 9;

2)

“Marriage is a personal relation, between a man

and a woman, arising out of a civil contract to

which the consent of the parties capable of making

it is necessary. Consent alone does not constitute a

marriage; it must be followed by a solemnization.”

S.D. Codified Laws § 25-1-1; and,

3) “Any marriage contracted outside the jurisdiction

of this state, except a marriage contracted between

two persons of the same gender, which is valid bythe laws of the jurisdiction in which such marriage

was contracted, is valid in this state.” S.D.

Codified Laws § 25-1-38

The marriage bans further codify the second-class status of same-sex

couples by titling S.D. Codified Laws § 25-1-38 as, “Validity of marriages

contracted outside state--Same-sex marriages excluded .” (emphasis added).

B. The Marriage Bans Deny Plaintiffs Equal Protection Of

The Laws On the Basis Of Gender

In addition to discriminating against same-sex couples based on their sexual

orientation, South Dakota’s marriage bans also openly discriminate based on

gender. Each of the Appellee couples would be permitted to marry, or have their

marriage recognized, if his or her partner were a different sex. Appellees are

denied these rights solely because they are not a different sex. See Kitchen, 961 F.

Supp. 2d at 1206 (“[Utah’s marriage ban] involves sex-based classifications

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because it prohibits a man from marrying another man, but does not prohibit that

man from marrying a woman.”); Perry, 704 F. Supp. 2d at 996 (state marriage ban

discriminates based both on sexual orientation and gender).

That same reasoning applies to gender-based classifications. See J.E.B. v.

Alabama ex. rel. T.B., 511 U.S. 127, 140-41 (1994) (citing Powers, extending its

reasoning to sex-based peremptory challenges, and holding that such challenges

are unconstitutional even though they affect both male and female jurors). Under

Loving, Powers, and J.E.B., the gender-based classifications in South Dakota’s

marriage bans are not valid simply because they affect men and women the same

way.

Rather, the relevant inquiry under the Equal Protection Clause is whether the

law treats an individual differently because of his or her gender. J.E.B., 511 U.S. at

146. “The neutral phrasing of the Equal Protection Clause, extending its guarantee

to ‘any person,’ reveals its concern with rights of individuals, not groups (though

group disabilities are sometimes the mechanism by which the State violates the

individual right in question).” Id. at 152 (Kennedy, J., concurring in the judgment).

Appellants cannot reasonably contend that South Dakota’s marriage bans

laws do not classify on the basis of sex because, the class of persons regulated by

marriage laws is a couple, not an individual person. Nor can Defendants

reasonably argue that such laws are “gender neutral” because a marriage license is

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issued to a couple, not an individual. As explained above, such arguments directly

contradicts the Supreme Court’s pronouncements that both the right to marry and

the right to equal protection of the laws belonging to the individual . Moreover,

such arguments merely repackages the “equal application” argument rejected in

Loving, 388 U.S. at 8; see also Powers v. Ohio, 499 U.S. 400, 410 (1991) (holding

“that racial classifications do not become legitimate on the assumption that all

persons suffer them in equal degree” and that race-based peremptory challenges

are invalid even though they affect all races); Perez, 198 P.2d at 20 (“The decisive

question . . . is not whether different races, each considered as a group, are equally

treated. The right to marry is the right of individuals, not of racial groups.”).

All of the parties agree that South Dakota issues marriage licenses to two

individuals. Based on gender— relative to each other—South Dakota will deny

both individuals the right to marry when both are of the same sex. Thus, South

Dakota expressly takes gender into account when issuing marriage licenses. That

the law applies that express classification to both persons in a couple does not

immunize the law from the requirement of heightened scrutiny.4 The fallacy of the

argument that the law does not classify on the basis of sex would be apparent if a

state passed a law providing that a woman can only enter into a business

" Similarly, the fact that the law also classifies on the basis of sexual orientation

does not change the fact that the State is also classifying based on gender; the two

classifications are not mutually exclusive.

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partnership with a man, and vice-versa. Such a law would plainly discriminate

based on sex. The same analysis applies here. South Dakota’s marriage laws

discriminate based on sex because they limit access to a vital personal right—the

right to marry—by restricting access to that right only to different-sex partners.

South Dakota’s marriage bans also impermissibly seek to enforce a gender-

based requirement that a woman should only marry a man, and that a man should

only marry a woman. South Dakota’s current marriage laws do not treat husbands

and wives differently in any respect; spouses have the same rights and obligations

regardless of their gender. As such, there is no rational foundation for requiring

spouses to have different genders. Today, that requirement is an irrational vestige

of the outdated notion—long rejected in other respects by the South Dakota

Legislature and the courts—that men and women have different “proper” roles in

marriage.

The Supreme Court has held that the government may not enforce gendered

expectations about the roles that women and men should perform within the

family, whether as caregivers, breadwinners, heads of households, or parents.5 Like

5 See, e.g., Reed v. Reed, 404 U.S. 71, 76-77 (1971) (invalidating Idaho law thatgave men preference over women in administering estates); see also Califano v.

Westcott, 443 U.S. 76, 89 (1979) (finding unconstitutional a federal statute based

on the stereotype that a father is the provider “while the mother is the ‘center of

home and family life’”); Orr v. Orr, 440 U.S. 268, 283 (1979) (invalidating

measure imposing alimony obligations on husbands, but not on wives, because it

“carries with it the baggage of sexual stereotypes”); Stanton v. Stanton, 421 U.S. 7,

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the laws in those cases, South Dakota’s marriage bans use a gender-based

classification not to further an important governmental interest, but rather simply

to reinforce the gendered expectation that marriage “properly” should include a

man and a woman. While that expectation may hold true for some people, it does

not hold true for the Appellee couples and other same-sex couples, who yearn to be

married to the person of their choice.

Under settled law, gender-based classifications are presumed to be

unconstitutional; such a law can be upheld only if supported by an “exceedingly

persuasive justification.” U.S. v. Virginia, 518 U.S. 515, 524 (1996) (internal

quotation marks omitted). As explained below, South Dakota’s reliance on gender

to exclude same-sex couples is not supported by any legitimate justifications, much

less the exceedingly persuasive justification required by the Supreme Court’s

precedent.

C. South Dakota’s Marriage Bans Violate Equal Protection

Under The Heightened Scrutiny Required by Windsor

Under the analysis required by Windsor, South Dakota’s marriage bans

violate equal protection for the same reasons the Supreme Court invalidated

DOMA. In Windsor, the Supreme Court held that Section 3 of DOMA, which

14-15 (1975) (finding unconstitutional state support statute assigning different age

of majority to girls than to boys and stating, “[n]o longer is the female destined

solely for the home and the rearing of the family, and only the male for the

marketplace and the world of ideas”).

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excluded married same-sex couples from federal benefits, violated “basic due

process and equal protection principles” because it was enacted in order to treat a

particular group of people unequally. 133 S. Ct. at 2693. The Court found that no

legitimate purpose sufficed to “overcome” that discriminatory purpose and effect.

Id. at 2696.

Windsor did not refer to the traditional equal protection categories or place a

label on the scrutiny it applied. But as the Ninth Circuit recently held, it is readily

apparent from the analysis the Supreme Court applied that Windsor involved

“something more than traditional rational basis review.” SmithKline Beecham

Corp. v. Abbott Labs., 740 F.3d 471, 483 (9th Cir. 2014).

The Court in Windsor did not consider hypothetical justifications for

DOMA, as an ordinary rational basis analysis would require. Instead, it examined

the statute’s text and legislative history to determine that DOMA’s “principal

purpose is to impose inequality, not for other reasons like governmental

efficiency.” Windsor, 133 S. Ct. at 2694. In addition, Windsor carefully considered

the severe harm to same-sex couples and their families caused by DOMA’s denial

of recognition to their marriage and required Congress to articulate a legitimate

governmental interest strong enough to “overcome[]” the “disability” on a “class”

of persons. Id. at 2696. This Court must apply the same careful consideration to

South Dakota’s similarly purposeful unequal treatment of same-sex couples.

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in their community and in their daily lives.” Windsor, 133 S. Ct. at 2694. The bans

“also bring[] financial harm to children of same-sex couples,” id. at 2695, by

denying their families a multitude of benefits that the State and the federal

government offer to legal spouses and their children.

Also like DOMA, South Dakota’s marriage bans are not justified by any

legitimate governmental interests sufficient to overcome those serious harms.

Indeed, every purported justification asserted by defendants in marriage cases

around the country was presented to the Supreme Court by the Respondent in

urging the Court to uphold DOMA in Windsor. See Brief on the Merits for

Respondent the Bipartisan Legal Advisory Group of the U.S. House of

Representatives, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307),

2013 WL 267026, at *21, 43-49 (arguing that “Congress could rationally decide to

retain the traditional definition for the same basic reasons that states adopted the

traditional definition in the first place and that many continue to retain it”). None

of those purported governmental interests were sufficient to save DOMA from

invalidity, see Windsor, 133 S. Ct at 2696, and they are equally insufficient under

the careful consideration required here. Indeed, they are insufficient under any

level of constitutional review.

D. A Finding Of Animus Is Sufficient, But Not Necessary, To

Find South Dakota’s Marriage Bans And Anti-Recognition

Laws Unconstitutional

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Courts look for a rational connection between purported legislative ends and

the chosen legislative means to ensure that the state has not engaged in line

drawing merely for “the purpose of disadvantaging the group burdened by the

law.” Romer v. Evans, 517 U.S. 620, 633 (1996); see also Windsor, 133 S. Ct. at

2693; City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450 (1985); U.S.

Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973).

Laws whose purpose is to disadvantage a politically unpopular group violate

equal protection. In other words, a finding that a law was advanced for an

impermissible purpose (animus) is sufficient to strike down the law. Windsor, 133

S. Ct. at 2693; Romer, 517 U.S. at 634-35; Cleburne 473 U.S. at 446-47; Moreno,

413 U.S. at 534. The history of South Dakota’s marriage ban shows that this is an

instance of such line drawing. See APP 065–066 (quoting legislative history

indicating that the purpose of Amendment C was to combat “events in Hawaii” and

also showing that Amendment C went beyond marriage, targeting same-sex

couples by further preventing any kind of state recognition of their relationships.)

Appellants argue that, the “amendments to South Dakota’s marriage laws in

1996 and 2006 sought to maintain the status quo. Changes in South Dakota

marriage laws have not removed rights previously enjoyed by same-sex couples,

but rather adopted a long existing, widely held social norm already reflected in

state law.” AB 35–36 (quotations and citations omitted). But Appellants fail to

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recognize that the Windsor Court addressed exactly the same circumstances, since

no state allowed same-sex couples to marry in 1996 when Congress passed

DOMA. Windsor, 133 S. Ct. at 2681. The purpose and effect of South Dakota’s

marriage bans were to disadvantage same-sex couples much like the “history of

DOMA’s enactment,” including a stated interest in “defend[ing] the institution of

traditional heterosexual marriage,” demonstrated “that interference with the equal

dignity of same-sex marriages . . . was more than an incidental effect of the federal

statute” but “was its essence.” Windsor, 133 S. Ct. at 2681. As Justice Scalia

recognized in Lawrence, “‘preserving the traditional institution of marriage’ is just

a kinder way of describing the State’s moral disapproval of same-sex couples.” 539

U.S. at 601 (Scalia, J., dissenting).

Appellants also fail to acknowledge that the legislative history that led the

Supreme Court to find Congress was motivated by “a bare ... desire to harm a

politically unpopular group,” Windsor, 133 S. Ct. at 2694 (citation omitted), is

materially indistinguishable from the history of South Dakota’s marriage bans.

DOMA was enacted in response to a court decision in Hawaii recognizing the

freedom to marry, while South Dakota’s marriage bans and anti-recognition laws

were also enacted in response to “events in Hawaii” and other States recognizing

the rights of same-sex couples. Both the legislative and non-legislative proponents

of South Dakota’s marriage bans and anti-recognition statutes saw those laws as a

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way to thwart any extension of marriage or marriage-like rights to same-sex

couples. See Doc 27 at ¶¶ 1–10. Both South Dakota’s and the federal government’s

(in the case of DOMA) exclusions of same-sex couples were justified by appeals to

tradition and fears of change. Id. The record in Windsor was sufficient to strike

down DOMA’s deprivation from gay and lesbian couples of the federal recognition

and benefits of marriage, and the record here is likewise sufficient to strike down

South Dakota’s marriage bans.

Like DOMA, the laws challenged here enact discrimination of an “unusual

character” because: 1) the laws expressly single out a politically unpopular group

in order to disadvantage them (the Supreme Court noted in Romer, that “laws

singling out a certain class of citizens for disfavored legal status or general

hardships are rare.” 517 U.S. at 633.); 2) the laws sweep with such an extremely

broad brush—barring same-sex couples not only from marriage,

15-1186 - south dakota plaintiffs' brief

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