15-1186 south dakota's opening brief

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

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SUMMARY OF THE CASE AND ORAL ARGUMENT REQUEST Plaintiffs, six same-sex South Dakota couples, filed a

complaint seeking declarative and injunctive relief alleging South

Dakota marriage laws deprive them of their constitutional rights to

equal protection, due process, and travel. Defendants, South

Dakota and Brown County officials, moved to dismiss the complaint

for failure to state a claim. The district court dismissed Plaintiffs’

right to travel claim but otherwise denied the motion to dismiss.

On cross motions for summary judgment, the district court

granted Plaintiffs’ motion for summary judgment and denied

Defendants’ motion for summary judgment. Finding a fundamental

right to marriage, the district court held that South Dakota

marriage laws violate the Due Process and Equal Protection Clauses

of the Fourteenth Amendment. The judgment was stayed pending

appeal. Defendants filed a timely notice of appeal arising from the

district court’s partial denial of Defendants’ motion to dismiss, and

the district court’s grant of Plaintiffs’ summary judgment motion

and denial of Defendants’ summary judgment motion. Appellants

seek reversal of the district court’s judgment and respectfully

request 20 minutes for oral argument.


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TABLE OF CONTENTS

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


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CONCLUSION .............................................................................. 38 CERTIFICATE OF COMPLIANCE .................................................. 39 CERTIFICATE OF SERVICE .......................................................... 40


iv

TABLE OF AUTHORITIES

PAGE

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


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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


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Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) ................. 23, 34 Lannan v. Maul, 979 F.2d 627 (8th Cir. 1992) .............................. 14 Latta v. Otter, 2015 WL 128117 (9th Cir. Jan. 9, 2015) .......... 20, 23 Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) .................................. 23 Lawrence v. Texas, 539 U.S. 558 (2003) ....................................... 33 Lexmark Int’l Inc. v. Static Control Components, Inc., 134 S.Ct. 1377 (2014) .................................... 14 Llapa-Sinchi v. Mukasey, 520 F.3d 897 (8th Cir. 2008) ................... 9 Loving v. Virginia, 388 U.S. 1 (1967) ....................................... 12, 25 Mass. v. U.S. Dep’t. of Health and Human Servs., 682 F.3d 1 (1st Cir. 2012) .......................................................... 20 Maynard v. Hill, 125 U.S. 190 (1888) ............................................ 33 Nordlinger v. Hahn, 505 U.S. 1 (1992) ........................................... 29 Novotny v. Tripp Cnty., S.D., 664 F.3d 1173 (8th Cir. 2011) ............ 9 Obergell v. Hodges, ___ U.S. ___, 2015 WL 213646 (January 16, 2015) ..................................................................... 20 Ohio ex. rel. Popovici v. Agler, 280 U.S. 379 (1930) ........................ 13 Pennoyer v. Neff, 95 U.S. 714 (1877) ............................................. 11 Reno v. Flores, 507 U.S. 292 (1993) .............................................. 37 Robicheaux v. Caldwell, 2 F.Supp.3d 910 (E.D. La. 2014) . 23, 32, 34 Romer v. Evans, 517 U.S. 620 (1996) ...................................... 24, 35


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Schmidt v. Des Moines Pub. Schs., 655 F.3d 811 (8th Cir. 2011) ...................................................................... 29, 36 Schuette v. BAMN, 134 S.Ct. 1623 (2014) ............................... 34, 35 Shelby Cnty., Ala. v. Holder, 133 S.Ct. 2612 (2013) ...................... 11 Sosna v. Iowa, 419 U.S. 393 (1975) .............................................. 29 Tanco v. Haslam, ___ U.S. ___, 2015 WL 213648 (January 16, 2015) ..................................................................... 20 Turner v. Safley, 482 U.S. 78 (1987) ............................................. 26 United States v. Crawford, 115 F.3d 1397 (8th Cir. 1997) ......... 2, 14 United States v. Windsor, 133 S.Ct. 2675 (2013) .................... passim Wallace v. Wallace, 736 F.3d 764 (8th Cir. 2013) .......................... 14 Washington v. Glucksberg, 521 U.S. 702 (1997) ............ 3, 22, 23, 35 Weems v. Little Rock Police Dep’t, 453 F.3d 1010 (8th Cir. 2006) ... 37 Williams v. North Carolina, 317 U.S. 287 (1942) ...................... 13, 33 Zablocki v. Redhail, 434 U.S. 374 (1978) ....................................... 26 FEDERAL STATUTES CITED: 28 U.S.C. § 1331 ...................................................................... 1, 13 29 U.S.C. § 1291 ............................................................................ 2 STATE STATUTES CITED: SDCL 25-1-1 .............................................................................. 5, 7 SDCL 25-1-9 .................................................................................. 7


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SDCL 25-1-38 ............................................................................ 5, 8 SDCL ch. 25-2 ................................................................................ 7 SDCL ch. 25-5 ................................................................................ 7 SDCL Title 25 ................................................................................. 1 OTHER AUTHORITIES: 1993 SD Sess. Laws, ch. 191 ......................................................... 7

S.D. Const. art. 21, § 9 ........................................................... 1, 5, 8

U.S. Const. amend. XIV, § 1 ......................................................... 36


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JURISDICTIONAL STATEMENT1

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.


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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)


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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


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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.


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2014, the district court issued an order granting in part and

denying in part Defendants’ motion to dismiss. APP 138-65. The

district court granted Defendants’ motion to dismiss Plaintiffs’

right to travel claim, but denied the motion as to Plaintiffs’ equal

protection and due process claims. Id. On November 25, 2014,

Defendants answered Plaintiffs’ complaint and moved for summary

judgment. APP 166-176. On January 12, 2015, the district court

issued an order wherein it granted Plaintiffs’ motion for summary

judgment and denied Defendants’ motion for summary judgment.

APP 276-303. In doing so, the district court held that “SDCL

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

Constitution and any other provision of state law that precludes

people from marrying, or refuses to recognize an existing marriage,

solely because the individuals are of the same gender are

unconstitutional because they violate the Due Process Clause and

the Equal Protection Clause of the Fourteenth Amendment.”

APP 302. The district court enjoined Defendants “from enforcing

those laws or otherwise declining to issue a marriage license solely

because the applicants are of the same gender.” Id. The district

court stayed final judgment pending appeal. APP 304-05.


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The rulings presented for this Court’s review include: the

district court’s partial denial of Defendants’ motion to dismiss and

the district court’s grant of Plaintiffs’ motion for summary

judgment and denial of Defendants’ motion for summary

judgment. APP 138-65, 276-305. The district court’s dismissal of

Plaintiffs’ right to travel claim has not been appealed by Plaintiffs

and, accordingly, is not before this Court.

South Dakota Marriage Laws

Prior to South Dakota statehood, the legislature of the Dakota

Territory adopted an Act Regulating Marriage at its first legislative

session in 1862. APP 191-94. The Act only authorized marriages

“between a male person of sixteen, and a female of fourteen years”

as valid. APP 192, ch. 59, sec. 2. The Act also legitimized children

whose parents were subsequently married. APP 194, ch. 59, sec.

17. In 1890, the first session of the South Dakota Legislature

expressly re-enacted the Territorial Laws and adopted an act

related to issuing marriage licenses. APP 199-201, chs. 105 and

109. These acts continued to define marriage as between a male

and female couple. Id. The Legislature adopted a revised civil

code in 1903, including substantial revisions to the State’s


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marriage laws. APP 202-15. These laws continued the

authorization of marriage between a male and a female. APP 203,

ch. I, sec. 36.

In 1975, South Dakota Codified Law (SDCL) 25-1-9 was

amended to simply refer to “[a]ny unmarried person.” APP 261.

The purpose of the amendment is reflected in the title of the Bill:

“Lowering Marriageable Age for Males.” APP 260-61. The other

provisions concerning marriage were continued. In 1993, the

reference in SDCL 25-1-9 to “any unmarried person” was amended

to “applicant.” 1993 SD Sess. Laws, ch. 191.

In 1996, the Legislature amended SDCL 25-1-1 (the definition

of marriage) to read, in part: “Marriage is a personal relation,

between a man and a woman, arising out of a civil contract to

which the consent of parties capable of making it is necessary.”

APP 265-66. This is the current form of SDCL 25-1-1. Other

provisions concerning eligibility for marriage, and the obligations

and responsibilities between spouses and for children, continued.

SDCL chs. 25-2 and 25-5.

In 2000, the Legislature amended South Dakota law

concerning the recognition of marriages performed outside the


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State. APP 267-68. SDCL 25-1-38 was amended to read as

follows: “Any marriage contracted outside the jurisdiction of this

state, except a marriage contracted between two persons of the

same gender, which is valid by the laws of the jurisdiction in which

such marriage was contracted, is valid in this state.” Id. This is

the current form of SDCL 25-1-38.

In 2005, the Legislature proposed the following amendment

to the South Dakota Constitution: “Only marriage between a man

and a woman shall be valid or recognized in South Dakota. The

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. Constitution, Art. 21, § 9. In

2006, the proposed constitutional amendment was approved by

approximately 52% of the voters (172,242 for and 160,173

against). APP 182. Consistent with the above chronology, South

Dakota has never issued a marriage license to a couple of the

same gender, even between 1976 and 1996 when South Dakota

statutes did not explicitly limit the issuance of marriage licenses to

opposite-sex couples. APP 177-83.


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SUMMARY OF THE ARGUMENT

The district court erred in asserting jurisdiction over

Plaintiffs’ claims by failing to apply the Tenth Amendment and

domestic relations exception to federal question jurisdiction. The

district court’s partial denial of Defendants’ motion to dismiss, and

grant of Plaintiffs’ motion for summary judgment and denial of

Defendants’ motion for summary judgment are wholly inconsistent

with binding precedent from this Court and the United States

Supreme Court. See Citizens for Equal Protection v. Bruning, 455

F.3d 859 (8th Cir. 2006); Baker v. Nelson, 409 U.S. 810 (1972).

The district court erred in holding there is a fundamental right to

marriage regardless of who is being married and by applying a

heightened standard of review. Because South Dakota marriage

laws withstand rational basis review, as consistent with this

Court’s rational in Bruning, this Court must reverse.

STANDARD OF REVIEW

This Court “review[s] a district court’s grant of summary

judgment de novo[.]” Novotny v. Tripp Cnty., S.D., 664 F.3d 1173,

1176 (8th Cir. 2011). Constitutional issues are also reviewed

de novo. Llapa-Sinchi v. Mukasey, 520 F.3d 897, 900 (8th Cir.


10

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.


11

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


12

to prescribe the conditions upon which the marriage relation

between its own citizens shall be created[.]”). See also Haddock v.

Haddock, 201 U.S. 562, 575 (1906), overruled on other grounds

(“No one denies that the states, at the time of the adoption of the

Constitution, possessed full power over the subject of marriage

and divorce.”); Loving v. Virginia, 388 U.S. 1, 7 (1967) (“[M]arriage

is a social relation subject to the State’s police power.”).

The Supreme Court recently recognized this state authority in

United States v. Windsor, 133 S.Ct. 2675 (2013), stating that “[b]y

history and tradition the definition and regulation of marriage . . .

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

separate States” and “[t]he states, at the time of the adoption of the

Constitution, possessed full power over the subject of marriage

and divorce . . . [and] the Constitution delegated no authority to

the Government of the United States on the subject of marriage

and divorce.” Windsor, 133 S.Ct. at 2689-91. This separation of

authorities is embodied in the Tenth Amendment, which reserves

those authorities entirely to the states. As the Court

acknowledged, “when the Constitution was adopted the common

understanding was that the domestic relations of husband and


13

wife and parent and child were matters reserved to the States.” Id.

(quoting Ohio ex. rel. Popovici v. Agler, 280 U.S. 379, 383-84

(1930)); see also Bruning, 455 F.3d at 867.

An exception to federal question jurisdiction under 28 U.S.C.

§ 1331 has been established by the Supreme Court. In Ex parte

Burrus, 136 U.S. 586, 593-94 (1890), the Supreme Court stated

that the “whole subject of the domestic relations of husband and

wife, parent and child, belong to the laws of the states, and not to

the laws of the United States.” In Williams v. North Carolina, 317

U.S. 287, 298 (1942), the Court stated that “[e]ach state as a

sovereign has a rightful and legitimate concern in the marital

status of persons domiciled within its borders.” The Court

specifically referred to this domestic relations exception in

Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992), although it

only referenced divorce, alimony and child custody.

In 2004, the Supreme Court appears to have applied the

domestic relations exception to federal questions. Elk Grove

Unified School District v. Newdow, 542 U.S. 1, (2004), abrogated on

other grounds, Lexmark Int’l Inc. v. Static Control Components, Inc.,

134 S.Ct. 1377 (2014). The Court stated:


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[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


15

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

erroneously rejected both Baker and Bruning.


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Bruning addressed an equal protection challenge to a

Nebraska Constitutional Amendment almost identical to South

Dakota’s. Both Constitutional Amendments limit marriage to a

man and a woman. Bruning made several specific holdings

relevant to this appeal: first, that a class based upon sexual

orientation was not a suspect class requiring heightened scrutiny

review. Bruning, 455 F.3d at 866-67. Second, that states had the

power to regulate marriage and classify those persons who could

validly marry. Id. at 867. Third, that the Nebraska Constitutional

provision limiting marriage to a man and a woman had a rational

basis and did not violate the Equal Protection Clause. Id. at 867-

68. Finally, in rendering its decision, Bruning specifically

referenced and discussed the Supreme Court’s decision in Baker to

support its holdings. Id. at 870-71. Baker dismissed, for want of

a substantial federal question, a mandatory appeal from a

Minnesota Supreme Court decision holding that same-sex

marriage was not a fundamental right and that the Minnesota

prohibition on same-sex marriage did not violate either the Due

Process or Equal Protection Clauses of the Fourteenth


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Amendment. Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn.

1971); Baker, 409 U.S. 810 (1972).

The district court’s attempt to distinguish Baker by reasoning

that subsequent doctrinal developments justify departure from

Baker is faulty. Baker’s dismissal was a disposition on the merits.

Hicks v. Miranda, 422 U.S. 332, 344 (1975) (“[U]nless and until the

Supreme Court should instruct otherwise, inferior federal courts

had best adhere to the view that if the Court has branded a

question as unsubstantial, it remains so except when doctrinal

developments indicate otherwise[.]”) (citation omitted). [L]ower

courts are bound by summary decisions of [the Supreme Court]

until such time as the Court informs (them) that (they) are not.”

Id. at 344-45 (citing Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir.

1973). Similarly, district courts within the Eighth Circuit are

bound to follow decisions of this Court. See, e.g., Hood v. U.S.,

342 F.3d 861, 864 (8th Cir. 2003).

While Bruning did not directly address the issue of whether

same-sex marriage is a fundamental right, its reference to Baker

demonstrates this Court’s recognition of the binding precedential

effect of Baker. For the district court to ignore the Court’s


18

references to Baker and address subsequent doctrinal

developments as if Bruning did not exist is clear error.

The Supreme Court decisions rendered after Bruning that are

relied upon by the district court to ignore Baker, are Hollingsworth

v. Perry, 133 S.Ct. 2652 (2013) and Windsor. These decisions do

not constitute doctrinal developments that render Baker without

precedential value. In Hollingsworth, the Supreme Court relied on

the petitioners’ lack of standing to dismiss the petition.

Hollingsworth, 133 S.Ct. at 2659. This conveys nothing with

regard to the Supreme Court’s stance on Baker’s continued

precedential effect. Without standing, the Hollingsworth Court had

no need to address additional jurisdictional defects.

Further, Windsor did not invalidate state marriage

definitions, or establish a fundamental right to same-sex marriage.

Even the district court recognized Windsor did not address these

issues. APP 286. Windsor affirmed the states’ sovereign power to

define and regulate marriage noting that “[t]he states, at the time

of the adoption of the Constitution, possessed full power over the

subject of marriage and divorce . . . [and] the Constitution

delegated no authority to the Government of the United States on


19

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.


20

While some federal courts have used Windsor to make new

law in this area, other courts have held that Baker is binding

precedent. Mass. v. U.S. Dep’t. of Health and Human Servs., 682

F.3d 1, 8 (1st Cir. 2012) (citation omitted) (“Baker is precedent

binding on us unless repudiated by subsequent Supreme Court

precedent.”); DeBoer v. Snyder, 772 F.3d 388, 400 (6th Cir. 2014)4

(“The [Supreme] Court has yet to inform us that we are not [bound

by Baker], and we have no license to engage in a guessing game

about whether the Court will change its mind or, more

aggressively, to assume authority to overrule Baker ourselves.”);

Latta v. Otter, 2015 WL 128117, at *1 n.2 (9th Cir. Jan. 9, 2015)

(O’Scannlain, J., dissenting) (“What the Supreme Court has

decided is that the federal courts should not intrude, as the panel

does here, on the choices of state electorates regarding whether to

define marriage as a male-female union.”); Conde-Vidal v. Garcia-

Padilla, 2014 WL 5361987, at *6 (P.R. Oct. 21, 2014) (stating “this

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).


21

Court will apply Baker v. Nelson, as the Supreme Court has

instructed it to do”).

The district court further erred in dismissing Bruning’s

reliance on Baker as mere recognition (dicta) and in determining

that Bruning “is not dispositive of the central issue before this

court, namely, whether plaintiffs can establish a deprivation of

their due process or equal protection rights based on a

fundamental right to marriage.” APP 158.

Importantly, the claims made in Bruning are not significantly

distinct from the equal protection claims made here. The Bruning

plaintiffs, while not asserting a right to marriage or same-sex

unions, were seeking to overturn the Nebraska Constitutional

Amendment restricting marriage to a man and a woman so that

they could obtain state legislation authorizing same-sex marriage

or civil unions. Bruning, 455 F.3d at 865. The equal protection

claim brought by Plaintiffs here seeks to overturn an almost

identical State Constitutional Amendment (as well as “other State

laws”) restricting marriage to a man and a woman. While the

plaintiffs in the two cases are not identically situated, the equal

protection claims being made are the same: whether State


22

marriage laws prohibiting same-sex marriage unconstitutionally

treat a class of persons differently than other similarly situated

persons. Accordingly, the claims are not sufficiently distinct to

justify the district court’s rejection of Baker and Bruning.

III

The district court erred in concluding that Plaintiffs have a fundamental right to same-sex marriage.

The district court erred in holding there is a fundamental

right to marriage regardless of who is being married. APP 288.

Under Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997), a

fundamental right is one that is “objectively, deeply rooted in this

Nation’s history and tradition, . . . and implicit in the concept of

ordered liberty, such that neither liberty nor justice would exist if

they were sacrificed[.]” (citations omitted) (internal quotation

marks omitted). South Dakota history reflects a tradition of

marriage between male and female partners. APP 192, ch. 59,

sec. 2. In contrast, same-sex marriage was unknown in the laws

of the United States before 2003. Goodridge v. Dep’t of Public

Health, 798 N.E.2d 941, 990 (Mass. 2003). While some states

have now authorized same-sex marriage, these state actions do not


23

establish that same-sex marriage is “objectively, deeply rooted in

this Nation’s history and tradition.” See Glucksberg, 521 U.S. at

720-21. Other courts have found there is no fundamental right to

same-sex marriage. In DeBoer, the Sixth Circuit held there was no

fundamental right to same-sex marriage, reviewing the equal

protection and due process claims under the rational basis test,

and finding the states’ prohibition on same-sex marriage to be

constitutional. DeBoer, 772 F.3d 388, 410-13; see also

Robicheaux v. Caldwell, 2 F.Supp.3d 910, 918-19, 923 (E.D. La.

2014) (upholding a state prohibition on same-sex marriage under

the rational basis test, finding neither the existence of a

fundamental right nor the targeting of a suspect class).

While other courts have found a fundamental right to same-

sex marriage,5 none of these decisions bind this Court. In

contrast, Glucksberg does. Given the Glucksberg characterization

of a “fundamental right” as one “deeply rooted in this Nation’s

5 The Fourth, Seventh, Ninth, and Tenth Circuits have recognized a constitutional right to same-sex marriage. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 20140); Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014).


24

history and tradition,” and the undisputable fact that same-sex

marriage was unknown in the United States prior to 2003, the

district court’s determination that there is a fundamental right to

same-sex marriage must be rejected.

To date, the Supreme Court has recognized a fundamental

right to marriage only in a traditional opposite-sex context. Since

this Nation’s inception, that right has been regulated and limited

by the states. All fifty states have regulated and continue to

regulate prohibitions on marriage based on polygamy and degree

of blood relation. APP 182-83, 269-75. State restrictions on

polygamy, for example, are clearly foundational to the United

States, as those restrictions were a condition on the statehood of

Arizona, New Mexico, Oklahoma and Utah. Romer v. Evans, 517

U.S. 620, 648-50 (1996) (Scalia, J., dissenting). South Dakota,

from territorial days, has consistently limited the fundamental

right to marriage, prohibiting bigamy and incest, establishing

restrictions on age and degree of blood relation, and limiting

marriage partners to a male and female. These are the limitations

on marriage that are “deeply rooted in this Nation’s history and


25

tradition” and therefore the controlling parameters of the

fundamental right to marriage under Glucksberg.

The district court’s reliance on Loving v. Virginia, 388 U.S. 1

(1967), to find a broader fundamental right is misplaced. See

DeBoer, 772 F.3d at 412 (“When Loving and its progeny used the

word marriage, they did not redefine the term but accepted its

traditional meaning.”). Loving was a criminal proceeding brought

against a married inter-racial couple. The state law challenged in

that case criminalized “cohabitating as man and wife” by “any

white person and any colored person.” The Court’s opinion

focused on whether the racial classification involved – a suspect

classification that is subjected to strict scrutiny – violated the

Equal Protection and Due Process Clauses. Loving, 388 U.S. at 7-

12. Loving is not applicable here because it addressed a racial

restriction, not the fundamental right to marriage.

Indeed, five years after Loving, the Supreme Court dismissed

Baker, which involved a same-sex couple’s citation of Loving as

authority to support a fundamental right to same-sex marriage.

Baker, 409 U.S. 810 (1972). Any argument that Loving established

a fundamental right to choose one’s spouse, or that the


26

fundamental right to marriage included a right to same-sex

marriage, was firmly answered by the Supreme Court when it

dismissed Baker for want of a substantial federal question.

The district court’s reliance on Zablocki v. Redhail, 434 U.S.

374 (1978) and Turner v. Safley, 482 U.S. 78 (1987) is similarly

misplaced. Zablocki concerned the issue of whether a state could

prohibit a person with non-custodial child support obligations

from marrying without court permission. Zablocki, 434 U.S. at

375. Turner addressed the constitutionality of a prison marriage

regulation prohibiting inmates from marrying without the prison

superintendent’s approval. Turner, 482 U.S. at 82. The issue of

whether the fundamental right to marry included the right to

marry a person of the same sex was not before the Court in either

case. These decisions, like Loving, provide no legal support for the

conclusion that same-sex marriage is a fundamental right.

Nor did Windsor hold that there was a fundamental right to

same-sex marriage. Windsor, 133 S.Ct. 2675. The Windsor

holding was based on federalism, not on the existence of a

fundamental right to same-sex marriage. Windsor specifically

acknowledged the fundamental nature of marriage, in fact, was its


27

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.”).


28

fundamental right to marriage by same-sex individuals in a

manner that is unsupported by Windsor and contrary to this

Court’s decision in Bruning. The district court stated: “This court

believes that Windsor recognizes that the sexual and moral choices

of homosexual citizens enjoy constitutional protection.” APP 286.

There is no language in Windsor, however, to support the

conclusion the Court applied any type of heightened scrutiny to

conclude the federal law was unconstitutional. See Windsor, 133

S.Ct. 2675 (2013).

The district court erroneously concluded that a claim of

sexual orientation discrimination enjoys heightened scrutiny.

Such reasoning defies Bruning wherein this Court held that a class

based upon sexual orientation was not a suspect class requiring

heightened scrutiny review. Bruning, 455 F.3d at 866-67. Same-

sex couples do constitute a class for purposes of equal protection

review, but not a suspect class requiring heightened scrutiny.

Under Bruning, Plaintiffs’ challenge to South Dakota marriage laws

are reviewed under the rational basis standard. Id.

Bruning addressed a constitutional amendment almost

identical to the South Dakota constitutional amendment


29

challenged here, and held that rational basis was satisfied.

Bruning, 455 F.3d at 867-68. As outlined below, South Dakota

marriage laws withstand judicial scrutiny for the same reasons

this Court upheld the Nebraska Constitutional provisions in

Bruning.

The Equal Protection Clause “does not forbid classifications.

It simply keeps governmental decision makers from treating

differently persons who are in all relevant respects alike.”

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). To demonstrate a

violation of equal protection, a party must show that the

challenged laws treat them differently than other persons who are

in all relevant respects similarly situated. Iowa Right to Life

Comm., Inc. v. Tooker, 717 F.3d 576, 605 (8th Cir. 2013); Schmidt

v. Des Moines Pub. Schs., 655 F.3d 811, 820 (8th Cir. 2011).

A State’s marriage laws “rest[] firmly within a State’s

constitutional prerogatives” and are entitled to particular

deference. Gregory, 501 U.S. at 462; Sosna v. Iowa, 419 U.S. 393,

404 (1975); Dandridge v. Williams, 397 U.S. 471, 486 (1970);

Bruning, 455 F.3d at 867. They “must be upheld . . . if there is

any reasonably conceivable state of facts that could provide a


30

rational basis for the classification.” F.C.C. v. Beach Commc’ns,

Inc., 508 U.S. 307, 313 (1993); City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 439 (1985). Even if South Dakota marriage

laws are somewhat over- or under- inclusive, there is a conceivable

rational basis to support them. See City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 48 (1986). Ultimately, a state’s

marriage laws must be “sustained if the classification drawn by the

statute is rationally related to a legitimate state interest.” City of

Cleburne, 473 U.S. at 440.

The South Dakota Legislature and electorate had a rational

basis related to a legitimate state interest for its long-standing

eligibility limitation on the issuance of State marriage laws: the

encouragement of heterosexual couples – the couples most likely

to have children – to accept the obligations and liabilities

associated with state marriage laws so that children, and

particularly un-planned children, are not abandoned and required

to be supported by the public fisc. In addition, it is both legitimate

and rational for the Legislature and electorate to want to wait to

analyze any impacts occurring in states that have authorized

same-sex marriage before South Dakota adopts a fundamental


31

change to society that may impact the public fisc by expanding the

number of couples eligible for marriage benefits.

There can be no question that heterosexual couples, as a

matter of biology, are the class that is likely to produce children,

including un-planned children, while homosexual couples are not.

The State has a legitimate interest ensuring that children,

particularly un-planned children, are provided for without resort to

the public fisc. It is rational for the Legislature and electorate to

believe it is important to encourage marriage for opposite-sex

couples, who can produce children by accident. Bruning

recognized the above interest was rationally based, stating that

Nebraska’s argument concerning the rational basis for its

limitation of marriage to opposite-sex couples “is also based on a

‘responsible procreation’ theory that justifies conferring the

inducements or marital recognition and benefits on opposite sex

couples, who can otherwise produce children by accident, but not

on same-sex couples, who cannot.” 455 F.3d at 867-68 (citations

omitted).

The recent DeBoer decision by the Sixth Circuit supports

Bruning’s analysis:


32

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


33

children from being abandoned to the State. The inclusion of

homosexual couples, who are far less likely to have un-planned

children, does not. The fact that the State’s marriage benefits are

selectively provided only to heterosexual couples, therefore, does

not violate the Equal Protection Clause.

The State Legislature and electorate could also rationally

believe same-sex marriage would fundamentally alter a basic

societal structure, would have an impact on the public fisc by

extending state marriage benefits to a new group of couples, and

that change should proceed with caution. The public institution of

marriage is one of the most important to our society. Williams v.

North Carolina, 317 U.S. at 303. The State is rationally justified in

proceeding with caution before making a change to such a

fundamental institution, particularly when it would impact the

public fisc in an unknown manner. Indeed, “preserving the

traditional institution of marriage” is itself “a legitimate state

interest.” Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O’Connor,

J., concurring).

A cautious approach to making such a fundamental change

to the definition of marriage is therefore not irrational. Same-sex


34

marriage is a new concept and there is a lack of data regarding the

real-life impacts of such a change on society. It was only a decade

ago when Massachusetts became the first state to recognize same-

sex marriage. The long-term impacts of this fundamental change

to a foundational structure of society cannot be ascertained in this

short time-frame. Robicheaux, 2 F.Supp.3d 910, 925-26; see also

DeBoer, 772 F.3d at 406 (stating that “[o]ne of the key insights of

federalism is that it permits laboratories of experimentation”). The

expansion of the definition of marriage is a fundamental societal

policy change that should not be determined by the courts.

Kitchen v. Herbert, 755 F.3d 1193, 1239 (10th Cir. 2014) (Kelly, J.,

dissenting). This policy determination should be made by the

citizens of the State through the democratic process. Burson v.

Freeman, 504 U.S. 191, 214 (1992) (Kennedy, J. concurring)

(“Voting is one of the most fundamental and cherished liberties in

our democratic system of government.”); Schuette v. BAMN, 134

S.Ct. 1623, 1637 (2014) (“It is demeaning to the democratic

process to presume that the voters are not capable of deciding an

issue of this sensitivity on decent and rational grounds.”).


35

The 2006 amendment to the South Dakota Constitution (Art.

21, § 9) was approved only by 52% of the State’s electorate, and

significant societal changes have occurred elsewhere since that

time. Expansion of the definition of marriage is exactly the kind of

fundamental policy issue that states should be allowed to innovate

and experiment with through the democratic process, rather than

placing the matter outside the arena of public debate and

legislative action through judicial action. See, e.g., Gregory, 501

U.S. at 457; Schuette, 134 S.Ct. at 1637; Glucksberg, 521 U.S. at

720. Because South Dakota’s marriage laws are rationally related

to a legitimate state interest under Bruning, they withstand

rational basis review and do not violate the Equal Protection

Clause of the Fourteenth Amendment.

Finally, Plaintiffs have submitted no facts to support the

claim that animus was the basis for South Dakota’s marriage laws,

recent or historical. While the withdrawal of rights raises a

question of animus under Romer, 517 U.S. at 627 (the amendment

at issue “withdraws from homosexuals . . . specific legal

protection[s]” that they previously enjoyed), amendments to South

Dakota’s marriage laws in 1996 and 2006 sought to maintain the


36

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.” DeBoer, 772 F.3d at 408.

Due Process

The Due Process Clause of the Fourteenth Amendment

provides that “[n]o State . . . shall . . . deprive any person of life,

liberty, or property, without due process of law.” U.S. Const.

Amend. XIV, § 1. There is a “substantive component” to the due

process clause that “protects individual liberty against certain

government actions regardless of the fairness of the procedures

used to implement them.” Schmidt v. Des Moines Public Schs., 655

F.3d at 816 (quoting Collins v. City of Harker Heights, 503 U.S.

115, 125 (1992)). To establish a substantive due process violation,

Plaintiffs must demonstrate that a challenged state law violates a

“fundamental right” that is deeply rooted in the Nation’s history

and tradition and is implicit in the concept of ordered liberty, and

that it is conscience-shocking, or outrageous or truly irrational.

Schmidt, 655 F.3d at 816; Christiansen v. West Branch Cmty. Sch.

Dist., 674 F.3d 927, 937 (8th Cir. 2012). Legislation infringing


37

upon a fundamental right is subject to strict scrutiny and a state

must demonstrate that the challenged law is “narrowly tailored to

serve a compelling state interest.” Gallagher v. City of Clayton, 699

F.3d 1013, 1017 (8th Cir. 2012) (quoting Reno v. Flores, 507 U.S.

292, 302 (1993)).

If a state law does not infringe upon a fundamental right, the

question is “only whether the statute rationally advances some

legitimate government purpose.” Weems v. Little Rock Police Dep’t,

453 F.3d 1010, 1015 (8th Cir. 2006). Importantly, “[a] rational

basis that survives equal protection scrutiny also satisfies

substantive due process analysis.” Kansas City Taxi Cab Drivers

Ass’n v. City of Kansas City, Mo., 742 F.3d 807, 809 (8th Cir. 2013)

(citation omitted).

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

the only substantive due process issue is whether the State’s

marriage laws rationally advance some legitimate government

purpose. For the same reasons that South Dakota marriage laws

meet the rational basis test for equal protection scrutiny, the

State’s marriage laws also rationally advance a legitimate

government purpose. See Kansas City Taxi Cab, 742 F.3d at 809.


38

CONCLUSION

Based upon the foregoing arguments and authorities,

Defendants respectfully request this Court reverse the district

court and declare South Dakota marriage laws constitutional.

Respectfully submitted,

For State Defendants-Appellants Daugaard, Jackley, Malsam-Rysdon, and Jones /s/ Jeffrey P. Hallem

Jeffrey P. Hallem Ellie J. Bailey Assistant Attorneys General 1302 E. Highway 14, Suite 1 Pierre, SD 57501-8501 Telephone: (605) 773-3215

For County Defendant Sherman

/s/ Robert B. Anderson Robert B. Anderson Justin L. Bell 503 South Pierre Street PO Box 160 Pierre, SD 57506 Phone: (605) 224-8803


39

CERTIFICATE OF COMPLIANCE

1. I certify that the Appellant’s Brief is within the limitation

provided for in Rule 32(a)(7) using bookman old style typeface in

14 point type. Appellant’s Brief contains 6,520 words.

2. I certify that the word processing software used to

prepare this brief is Microsoft Word 2010, and it is herewith

submitted in PDF format.

3. I certify that the brief submitted herein has been

scanned for viruses and that the brief is, to the best of my

knowledge and belief, virus free.

Dated this 27th day of February, 2015.

/s/ Jeffrey P. Hallem Jeffrey P. Hallem Assistant Attorney General


40

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 27th day of

February, 2015, a true and correct copy of Appellant’s Brief was

submitted to the Eighth Circuit Court of Appeals for review.

/s/ Jeffrey P. Hallem Jeffrey P. Hallem Assistant Attorney General


15-1186 south dakota's opening brief

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