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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Katherine Bradacs and Tracie Goodwin,
Plaintiffs,
v.
Nimrata (Nikki) Randhawa Haley, in her
official capacity as Governor of South
Carolina; Alan M. Wilson, in his official
Capacity as Attorney General,
Defendants.
_______________________________

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Civil Action No. 3:13-cv-02351-JMC

REPLY TO RETURN TO
DEFENDANTS MOTION FOR
JUDGMENT ON THE PLEADINGS

Plaintiffs have not come forward with any reasons why this Court should not grant
judgment for the Defendants. Whether the Defendants motion is treated as for judgment on the
pleadings or as one for summary judgment, the results are the same. Because of the legal
barriers to this suit of federalism, the Eleventh Amendment and lack of standing, the Defendants
are entitled to judgment in their favor regardless of the application of Bostic v. Schaefer, 760
F.3d 352 (4th Cir. 2014). Moreover, the Defendants respectfully argue against precedent in
Bostic. The Loving v. Virginia, 388 U.S. 1 (1967) decision has been misapplied by Bostic to
alter the inherent element of marriage which is a union of a man and a woman.
I
FEDERALISM
Plaintiffs in this case are incorrect in stating that Defendants federalism arguments have
been specifically considered by the courts and . . . [have] failed in countless cases, including
Bostic. . . . Plaintiffs Response to Defendants Motion for Judgment on the Pleadings at 5. To

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the contrary, our subject matter jurisdiction argument, as well as our federalism arguments, all
based upon the domestic relations exception, have not been addressed in the context of samesex marriage cases, Bostic included. Bostic did not deal with the domestic relations exception, or
whether such exception deprives the court of jurisdiction. Nor did Bostic address this argument
in terms of the federalism issues, based upon the domestic relations exception, being raised here.
First, however, we reiterate the binding effect of Baker v. Nelson, 409 U.S. 810 (1972)
upon this Court. Bostic concluded that Baker was not binding upon it. Bostic, however, cannot
serve to bind this Court with respect to that incorrect conclusion because of the prior panel rule
employed by the Fourth Circuit and because of Bostics misreading of Hicks v. Miranda, 422
U.S. 332 (1975).
Baker v. Nelson dismissed an appeal from the Minnesota Supreme Court for want of a
substantial federal question on the precise issue before Bostic and this Court: whether there is a
federal constitutional right of same-sex couples to marry. See, Baker, 191 N.W.2d 185 (Minn.
1971). In summarily dismissing the appeal in Baker, the Supreme Court also necessarily rejected
the argument made by plaintiffs there that the right to marry in such instance is a fundamental
right.
However, the Fourth Circuit panel in Bostic held that Baker was no longer binding
precedent because of the significant doctrinal developments that occurred after the [Supreme]
Court issued its summary dismissal in that case. 760 F.3d at 375. This was a clear disregard by
the panel of its own precedents, as well as an ignoring of the command of the Supreme Court in
Hicks, supra.
In other words, it is clear that Bostic, although acknowledging that the issues in Baker
were identical to those before it, ignored the well-established Fourth Circuit prior panel rule

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that one panel cannot overrule a decision by another panel. McMellon v. United States, 387
F.3d 329, 332 (4th Cir. 2004) (citing cases). This rule requires a panel to follow the earlier of
conflicting opinions. Id. Beginning in 1975, with the panel decision in Hogge v. Johnson, 526
F.2d 833, 835 (4th Cir. 1975), the Fourth Circuit, adhering to the mandate of the Supreme Court
in Hicks, found that the Supreme Courts summary dismissal for want of a substantial federal
question on the same issues is a perfectly clear precedent that is binding on us. Even though,
in Hogge, the Fourth Circuit panel disagreed with the summary dismissal, and believed that a
substantial federal question existed, former Supreme Court Justice Tom Clark sitting as a
Fourth Circuit panel member -- stated that the panel was foreclosed by Hicks holding that
such a summary dismissal by the Supreme Court, constituted a decision on the merits and was, as
a result, binding upon the panel. Hogge, 526 F.2d at 836 (Clark, J. concurring).
Fourth Circuit decisions have consistently applied this prior panel rule, established in
Hogge, thus requiring that summary disposition by the Supreme Court must be followed -regardless of the panels view of the merits of the Supreme Courts action. See, Thonen v.
Jenkins, 517 F.2d 3, 7 (4th Cir. 1975) [Although we agree . . . that the Supreme Courts
summary affirmance of a three judge court decision is not as strong precedent as a full Supreme
Court opinion . . ., we also agree with the Second Circuit that the privilege of disregarding every
summary Supreme Court holdings rests with that court alone.]; Goldfarb v. Sup. Ct. of Va., 766
F.2d 859, 862 (4th Cir. 1985) [The summary affirmance of this decision by the United States
Supreme Court necessarily agreed that a rational basis lay beneath Rule 1A: 1(4)(d), and we may
not re-open that foreclosed question. (citing Hicks v. Miranda, supra)]; Idaho Assoc. of
Naturopathic Physicians, Inc. v. U.S. Food and Drug. Adm., 582 F.2d 849, 853-854 (4th Cir.
1978) [reviewing a number of summary affirmances and dismissals by the Supreme Court on the

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issue and stating that [i]n light of the decisions of the Supreme Court that we have reviewed, we
find that the Naturopaths basic claim has been firmly, repeatedly and authoritatively rejected.];
Repub. Party of N.C. v. Hunt, 991 F.2d 1202, 1204 (4th Cir. 1993) (Phillips, J., dissenting from
denial of rehearing en banc) [While such a summary affirmance does not of course foreclose
later, full consideration of the dispositive issue by the Supreme Court . . . the decision affirmed
and its rationale are binding on this court until that happens]; Westinghouse Elec. Corp. v. State
of Md. Comm. On Human Relations, 520 F.Supp. 539, 547 (D. Md. 1981) [following Hicks and
Hogge, the District Court adhered to summary dispositions of Supreme Court, concluding that
only the Supreme Court could disregard these precedents].

None of these Fourth Circuit

decisions recognize that a Circuit Court or District Court is at liberty to decide that a summary
decision by the Supreme Court has been abandoned or superseded by doctrinal developments.
Accordingly, there is an irreconcilable conflict between Hogge and its progeny and
Bostic in this regard. Applying the prior panel rule, set forth in McMellon, it is evident that
Bostic is not binding precedent upon this Court with respect to its conclusion that Baker v.
Nelson is no longer good law. Hogge and subsequent Fourth Circuit decisions, referenced
above, adhere to the rule set forth in Hicks v. Miranda, supra that lower courts are bound to
follow the Supreme Courts summary decisions until such time as the [Supreme] Court informs
[them] that [they] are not. Hicks, 422 U.S. at 344. The Bostic panel ignored this rule, taking it
upon itself to decide that doctrinal developments render Baker v. Nelson archaic or
abandoned, and thus no longer applicable. In short, regardless of the merits of Plaintiffs
claims, Hogge and the subsequent decisions, referenced above, must be followed by this Court.
Hogge and these other earlier panel decisions control here, thereby requiring adherence to Baker.
Any subsequent doctrinal developments, found by Bostic, must be assessed by the Supreme

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Court, not by the Fourth Circuit, or by this Court. See Conde-Vidal v. Garcia-Padilla, ____
F.Supp. 2d ____, 2014 WL 5361987 (D.C.P.R. 2014) [Baker is binding on District Court].
Moreover, any conclusion by Bostic regarding federalism is not binding here, either.
Bostic addressed the argument that a federalism-based interest in defining marriage is a suitable
justification for the Virginia Marriage Laws. 760 F.3d at 378. However, the Fourth Circuit
rejected this argument, concluding that United States v. Windsor, 133 S.Ct. 2675 (2013) does
not teach us that federalism principles can justify depriving individuals of their constitutional
rights; it reiterates [Loving v. Virginia(s) 388 U.S. 1 (1967)] admonition that the states must
exercise their authority without trampling constitutional guarantees. Virginias federalism-based
interest in defining marriage cannot justify its encroachment on the fundamental right to marry.
760 F.3d at 379.
However, Bostic did not address the same federalism argument we are making in this
case. Our argument, in contrast to Bostic, and recognized in Windsor and Elk Grove Unified
School Dist. v. Newdow, 542 U.S. 1 (2004), abrogated on other grounds, Lexmark Intern., Inc. v.
Static Control Components, Inc., 134 S.Ct. 1377 (2014), is based upon the domestic relations
exception, applying the long-held view that the federal courts, as a general rule do not
adjudicate marital status even where there might otherwise be a basis for federal jurisdiction.
Windsor, supra, 133 S.Ct. at 2691. As Justice Stevens concluded in Newdow, . . . [w]hile rare
instances arise in which it is necessary to answer a substantial federal question that transcends or
exists apart from the family law issue, see e.g. Palmore v. Sidoti, 446 U.S. 429, 432-434...
(1984), in general it is appropriate for the federal courts to leave delicate issues of domestic
relations to the state courts. 542 U.S. at 13. And, as one Court has put it, [a] federal court
presented with matrimonial issues or issues on the verge of being matrimonial in nature should

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abstain from exercising jurisdiction so long as there is no obstacle to their full and fair
determination in state courts. American Airlines v. Block, 905 F.2d 12, 146 (2nd Cir. 1990).
See also, Norris v. Singletary, 2010 WL 331766 (D.S.C. 2010) [. . . federal appellate courts
have held that federal district courts may abstain for reasons of comity and common sense from
cases better handled by state courts having authority over matrimonial and family matters.].
That is the case here.
Indeed, scholars as well as courts, including the Fourth Circuit, have concluded that the
domestic relations exception is applicable to federal question jurisdiction, thereby depriving a
federal court of subject matter jurisdiction. As one leading scholar has recently concluded, there
is no federal question jurisdiction to hear domestic relations matters, explaining that
[t]he federal courts simply do not have the statutory federal question
jurisdiction that would enable them to hear cases challenging the definition
of marriage, divorce, alimony, child custody, or probate. These cases raised
religious questions, which is why in England they were heard by the
Ecclesiastical Courts and not by the common law courts or the courts of
equity.
Calabresi, The Gay Marriage Cases and Federal Jurisdiction (October 2, 2014), Northwestern
Law and Econ. Research Paper No. 14-18; Northwestern Public Law Research Paper No. 14-50,
at 47. Available at SSRN: http://ssm.com/abstract=2505514 or http://dx.doi.org/10.2139/ssm.
2505515. This analysis is entirely consistent with that of another scholar who has stated that
[n]ot infrequently, courts have dismissed federal question cases for lack of subject matter
jurisdiction, citing the domestic relations exception.

Harbach, Is The Family a Federal

Question? 660 Washington and Lee L.Rev. 131 146, and cases collected at n. 59.
Among the numerous cases cited by Professor Harbach is the Fourth Circuit
decision in Wilkins v. Rogers, 581 F.2d 399, 403-404 (4th Circ. 1978). Wilkins involved, among
other things, a wifes suit against her former husband regarding repayment of money allegedly

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advanced during the marriage as well as support and maintenance. Plaintiffs wife alleged that
she was a victim of unconstitutional sex-based discrimination sanctioned by the South Carolina
court system. Id. at 403. She sought to invoke the federal courts original jurisdiction under
both diversity, as well as federal question jurisdiction.
The Fourth Circuit, however, applied the domestic relations exception to dismiss
the case on both jurisdictional grounds, noting that [i]t has long been held that the whole subject
of domestic relations belongs to the laws of the state and not to the laws of the United States.
Id. Thus, according to the Fourth Circuit, . . . such disputes do not present a federal question,
notwithstanding allegations of sexual discrimination. . . . Therefore, original jurisdiction over
Wilkins claims does not lie. Id. at 404. (emphasis added).
While the Fourth Circuit went on to apply Pullman and other forms of abstention
as well, it is clear, as Professor Harbach concludes, that the Wilkins case stands for the
proposition that the domestic relations exception deprives federal courts of federal question
jurisdiction. Again, the prior panel rule would govern here, requiring this Court to follow
Wilkins instead of the Bostic decision. Like Baker v. Nelson, supra, which dismissed the same
sex marriage issue for want of a substantial federal question, Wilkins dismissed a federal claim
regarding a marital dispute, based upon alleged sex discrimination, for precisely the same reason
as Baker want of a federal question. Therefore, this Court lacks subject matter jurisdiction and
is obligated to follow Wilkins, as well as Baker.
According to Newdow, as well as Windsor, federal courts must honor the States
sovereign right in this area, notwithstanding that a constitutional challenge may be involved.
The state courts may and are required to hear such challenges. Huffman v. Pursue, Ltd., 420
U.S. 592, 611 (1975) [state judges are bound by federal law and must remain faithful to their

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constitutional responsibilities under Art. VI of the federal Constitution.]; See also In re Estate of
Mercer v. Bryant, 288 S.C. 313, 318, 342 S.E.2d 591, 593 (1986) [We hold that S.C. Code Ann.
21-7-480 (1976) is unconstitutional in its entirety because it violates the equal protection clause
of the United States Constitution.]. In this instance, the language contained in Art. XVII, 15
has never been interpreted by the courts in South Carolina. South Carolinas courts have not yet
defined the term contracts or other legal instruments as employed therein. Thus as in Newdow,
there will undoubtedly be family rights that are in dispute with respect to the scope of Art.
XVII, 15. As in Newdow, hard questions are sure to affect the outcome, particularly where a
South Carolina court would have to address the question of the breadth of the phrase contracts
or other legal instruments. Such a contract provision was not contained in the constitutional
amendment at issue in Bostic and its phraseology could be deemed to have constitutional
significance in this case. Compare Romer and Windsor, supra [finding animus against groups
based upon sexual orientation]. The protection of rights of contract in the South Carolina
Constitution suggests no such animus here. Notwithstanding Plaintiffs federal constitutional
claims, such claims are intertwined with family law rights in South Carolina, not yet defined
by state courts. Deference to the courts of South Carolina in this important area of domestic
relations does not mean that the state courts will not consider nor adjudicate the important
constitutional claims raised by this case.

To the contrary, our South Carolina courts will

certainly do so. However, at the same time, state courts must be allowed to define the scope of
domestic relations rights in this area. See, Chevalier v. Barnhart, 992 F.Supp.2d 810 (S.D. Ohio
2014) [applying domestic relations exception to dispute between same-sex couple].
In summary, the Fourth Circuit panel possessed no authority to disregard Baker, which
constitutes the one Supreme Court decision on the merits regarding same-sex marriage. While

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the Fourth Circuit speculated as to doctrinal developments, i.e. subsequent decisions of the
Supreme Court and how those cases may be applicable to the constitutional issue presented,
application of Baker should have been all that was necessary to decide Bostic. The Court was
not free to determine the Supreme Courts doctrinal developments.

Nor is this Court.

Moreover, the Fourth Circuit panel did not consider the issue of subject matter jurisdiction or
federalism as it relates to the longstanding domestic relations exception, as applied in both
Wilkins, as well as Newdow and Windsor.
II
THE ELEVENTH AMENDMENT BARS THIS SUIT
Plaintiffs misapply Ex Parte Young, 209 U.S. 123 (1908).

That case involved an

injunction to prevent the Attorney General from enforcing provisions of a railroad rate statute in
Minnesota which included criminal penalties. He had specific enforcement authority under that
law and had commenced proceedings to enforce compliance contrary to a federal court order.
As has been recognized by the Court of Appeals, general enforcement authority to enforce the
laws of the State is insufficient to invoke the

Ex Parte Young exception.

McBurney v.

Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010); Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d
316, 331 (4th Cir. 2001).
Plaintiffs contend that the Governor should remain a party because she is the Chief
Magistrate with supreme executive authority. S.C. Const. art. IV, 1. In Charleston Cnty.
Sch. Dist. v. Harrell, 393 S.C. 552, 561, 713 S.E.2d 604, 609 (2011), the Court rejected the
contention that the Governor's ample executive powers render him an appropriate defendant in
any suit where the constitutionality of a statute is challenged.

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Plaintiffs also assert that the Governor appoints the head of the Department of Revenue
and incorrectly states that she appoints the director of the Department of Health and
Environmental Control 1. Appointment of the DOR Director does not make the Governor subject
0F

to suit in this case. Harris v. McDonnell, 988 F. Supp. 2d (W.D. Va, 2013) specifically rejected
the contention the Virginia Governors direct supervisory responsibility for all executive
agencies as grounds for naming the Governor of Virginia in that same-sex marriage suit.
[P]ermitting a party to name the Governor in any suit challenging the validity of state law
would allow the rule in Ex parte Young to swallow the protections offered by the Eleventh
Amendment. 988 F. Supp. 2d at 607.
Plaintiffs contend that the Attorney General should remain a party because he can appear
for the State in Court and advise State officers. This authority is patently insufficient. As stated
in Robicheaux v. Caldwell, 986 F. Supp. 2d 749, 752 (E.D. La. 2013), reconsideration denied
(Jan. 13, 2014) [t]he Attorney General's sweeping responsibility to enforce the laws of the State
. . . lacks the Ex parte Young specificity nexus between the Attorney General and the alleged
unconstitutional provisions that is essential to defeat sovereign immunity..
Plaintiffs also allege that the Attorney General filed suit in the South Carolina Supreme
Court seeking an injunction against the Honorable Irwin Condon to prevent him from issuing
marriage licenses. See above. This action was, instead, brought by him in the name of the State
and is not properly styled by Plaintiffs as Condon v. Wilson. State ex rel Wilson v. Condon, No.
2014-002121, 2014 WL 5038396, at *1-2 (S.C. Oct. 9, 2014. Moreover, the action only asked
the Court to issue an injunction to the Probate Judge from issuing same-sex marriage licenses
1

[T]he board

[of health and environmental control], after consultation with and approval by the
Governor, must submit the name of its appointee [for executive director] to the Senate for the
Senate's advice and consent.. . . the board may remove a director only after consultation with and
approval by the Governor. S.C. Code Ann. 44-1-40.

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pending a decision in the instant case. The same-sex marriage statutes at issue do not give the
Attorney General any authority to prosecute probate judges for issuing licenses, nor do they
impose criminal penalties for violations. The Courts, rather than the Attorney General, have
judicial power over the Probate Judges in this State. S.C. Code Ann. 14-23-1010(The probate
court of each county is part of the unified judicial system of this State.); S.C. Const. art. V, 4
(The Chief Justice of the Supreme Court shall be the administrative head of the unified judicial
system.).
Plaintiffs claim that Bostic said that the plaintiffs in that case would have had authority to
sue the Attorney General and Governor, but the Opinion did not say so. In fact, an amended
complaint in that case removed the Governor and Attorney General as defendants. 760 F 3d at
369. Plaintiffs also ignore that Kitchen v. Herbert, 755 F.3d 1193, 1203 (10th Cir. 2014) found
that the Utah Governor and Attorney General had explicitly taken the position . . . that they
have ample authority to ensure that the Salt Lake County Clerk return[s] to her former practice
of limiting marriage licenses to man-woman couples in compliance with Utah law. Id. 755 F.
3d at 1202. South Carolinas Attorney General and Governor do not have such authority over
our Probate Judges who issue licenses and this action should be dismissed as to them.
III
Plaintiffs Lack Standing To Sue the Defendants
Plaintiffs misunderstand this argument. It is not about whether they have alleged an
injury. It is about whether these Plaintiffs alleged injury has a causal connection to the
Defendants. It does not.
Bishop v. Oklahoma, 333 F. App'x 361, 364 (10th Cir. 2009)(Bishop II) stated that
Article III standing requires that a plaintiff allege an injury-in-fact that has a causal connection

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to the defendant and is redressable by a favorable court decision. . . . Id. the Tenth Circuit
found that the Oklahoma [Governors and Attorney General's generalized duty to enforce state
law, alone, is insufficient to subject them to a suit challenging a constitutional amendment they
have no specific duty to enforce. Similarly, the South Carolina Governor and Attorney General
have no specific duty to enforce (Id.) South Carolinas same-sex marriage bans, and Plaintiffs
lack standing to sue them.
IV
LEGAL HISTORY OF MARRIAGE LAW
Plaintiffs contend that marriage law has been fluid in South Carolina with various
changes in age requirements and prohibitions on marriages among relatives such as an aunt and a
nephew. Those changes and Loving v. Virginia, 388 U.S. 1 (1967), did not alter the central
element inherent in marriages which is a union of a man and a woman. Loving, instead, lifted a
racial restriction superimposed on existing marital law. Race was not an element of marriage,
and Loving did not change any element of marriage or authorize such changes. Therefore,
Loving does not provide legal authority for changing the nature of marriage to include a union of
two men or two women.
IV
THE NIEMEYER DISSENT IN BOSTIC
[A] non-frivolous argument for a change in law is certainly an appropriate argument to
this Court. The Court, however, must follow the established precedent of this Circuit. United
States v. Williams, No. 4:12-CR-00969-RBH, 2014 WL 971749, at *5 (D.S.C. Mar. 12, 2014).
See also, Rule 11(b)(2), FRCP (Non-frivolous argument for modifying, or reversing existing
law or for establishing new law).

As discussed in Defendants MJP Memorandum, the

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dissenting opinion of Judge Niemeyer in Bostic correctly addressed the constitutional issues in
that case. Defendants arguments in their MJP Memorandum against the Bostic precedent are
intended to preserve those arguments for any future appellate review.
For the reasons discussed in the Defendants Memorandum in Support of Judgment on
the Pleadings, the Niemeyer dissent and other authority in that Memorandum demonstrates that
rational basis review should be applied to Plaintiffs claims in this case, and that South Carolina
law is supported by rational reasons. Respectfully, the speed of recent court decisions making
dramatic changes in state laws by overturning same-sex marriage bans, does not suggest careful
balancing and consideration of those issues. Instead, the Courts should have left decisions about
permitting same-sex marriage to legislative bodies and voters, who, by those valid means, have
changed marital law in a number of jurisdictions.
V
THE FULL FAITH AND CREDIT CLAUSE DOES NOT APPLY
Plaintiffs fail to distinguish Adar v. Smith, 639 F. 3d 146 (5th Cir. 2011) which ruled that
a 1983 action could not be the vehicle for enforcing a right alleged to exist under the Full Faith
and Credit Clause. Although Plaintiffs state that Adar is distinct from this case in meaningful
ways, they fail to point to any such distinctions.

Moreover, Adar addressed enforcement of

an adoption decree via the Full Faith and Credit clause but Plaintiffs do not have a judgment or
decree to enforce which, itself, puts their claim outside that clause.
Plaintiffs contend that marriages must be recognized as a public act or record, but
they have not cited one case requiring the recognition of an out-of-state marriage under the Full
Faith and Credit Clause of the United States Constitution. Bangaly v. Baggiani, ___ N.E. 3d __,
2014 WL 4794848 (Ill. App. 1 Dist 2014) applied an Illinois statute, and the Florida cases cited

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applied Florida law. See, eg. Johnson v. Lincoln Square Props. , Inc., 571 So. 2d 541, 543 (FL
2d, DCA, 1990). The Ohio cases made decisions under other Constitutional provisions. See, eg.,
Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio, 2013).
Instead, many legal scholars have concluded that the full faith and credit clause does not
require states to recognize out-of-state marriages contrary to their policies. As discussed in
Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1264 (N.D. Okla.):
Since [the Defense of Marriage Acts] passage, some scholars have concluded
that Section 2 [28 U.S.C. 1738C ] was unnecessary and simply reiterates a power
that states already possessed. See Joshua Baker & William Duncan, As Goes
DOMA ... Defending DOMA and the State Marriages Measures, 24 Regent Univ.
L.Rev. 1, 8 (20112012) (Over time, something of a consensus seems to have
developed among scholars that Section 2 of DOMA merely restates existing
conflicts of law principles with respect to interstate recognition of a legal status or
license....); William Baude, Beyond DOMA: Choice of State Law in Federal
Statutes, 64 Stan. L.Rev. 1371, 1392 (2012) (Section 2 of DOMA is expressly
intended to ratify such [state public] policies (if any ratification were needed).);
Mary L. Bonauto, DOMA Damages SameSex Families and Their Children, 32
Fam. Adv. 10, 12 (Winter 2010) ([S]tates have long possessed the power to
decide which marriages they would respect from elsewhere, a power that both
proponents and opponents of DOMA agree existed before and after DOMA.);
Patrick Borchers, The Essential Irrelevance of the Full Faith and Credit Clause to
the SameSex Marriage Debate, 38 Creighton Law R. 353, 358 (2005) (arguing
that Section 2 of DOMA was unnecessary because it simply states what the law
would be without it and that full faith and credit principles do not require one
state to give effect to a marriage celebrated in another state); Metzger, supra, at
1532 ([I]t is unlikely that a state's refusal to recognize same-sex marriages would
have violated Article IV's full faith and credit demand even absent DOMA, at
least as applied to same-sex marriage involving state residents.); Mark Strasser,
As Iowa Goes, So Goes the Nation: Varnum v. Brien and its Impact on Marriage
Rights for SameSex Couples, 13 J. Gender Race & Justice 153, 158 (Fall 2009)
([E]ven without DOMA, states could have refused to recognize their
domicilaries' marriages validly celebrated elsewhere if such marriages violated an
important public policy of the domicile.).
Plaintiff claims that DOMA 2 cannot preempt other provisions of the Constitution.

The

problem for Plaintiffs with this argument is that they have not shown that their rights under the

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Constitution have been violated. Therefore, the State of South Carolina is not required to
recognize their DC marriage.
CONCLUSION
Plaintiffs have not come forward with any arguments that overcome the Defendants
grounds for their Motion for Judgment on the Pleadings. They are still in the wrong court suing
the wrong parties. Therefore, Defendants respectfully request that Judgment be granted to them
Respectfully submitted,
ALAN WILSON
Attorney General
Federal ID No.10457
ROBERT D. COOK
Solicitor General
Federal ID No. 285
Email: BCOOK@SCAG.GOV
/s/ J. Emory Smith, Jr.
J. EMORY SMITH, JR.
Deputy Solicitor General
Federal ID No. 3908
Email: ESMITH@SCAG.GOV
IAN P. WESCHLER
Assistant Attorney General
Federal ID No. 11744
BRENDAN J. MCDONALD
Assistant Attorney General
Federal ID No. 10659
Post Office Box 11549
Columbia, South Carolina 29211
Phone: (803) 734-3680
Fax: (803) 734-3677
Counsel for Defendants
Governor and Attorney General

November 4, 2014

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