E-Filed

02/17/2015 @ 04:23:18 P M
Honorable Julia Jordan Weller
Clerk O f The Court

No.

1140460 "

IN THE SUPREME COURT OF ALABAMA

EX

PARTE

STATE

ALABAMA POLICY I N S T I T U T E
C I T I Z E N S A C T I O N PROGRAM,
Petitioner,

EX R E L .

ALABAMA

AND

v.
ALAN
JEFFERSON
AS

L. KING,

COUNTY, A L A B A M A ,

J U D G E OF P R O B A T E

HIS

OFFICIAL

STEVEN

I N H I S O F F I C I A L C A P A C I T Y AS J U D G E OF P R O B A T E

ROBERT M. M A R T I N ,

L. REED,

I N HIS OFFICIAL CAPACITY

FOR C H I L T O N C O U N T Y , A L A B A M A ,

C A P A C I T Y A S J U D G E OF P R O B A T E
I N HIS OFFICIAL

MONTGOMERY C O U N T Y , A L A B A M A ,

AND

TOMMY

FOR M A D I S O N

RAGLAND,

COUNTY,

J U D G E OF

EACH

FOR

I N H I S OR HER

PROBATE,

Respondents.

EMERGENCY

PETITION

FOR WRIT

OF

MANDAMUS

MOTION FOR LEAVE TO FILE BRIEF FOR AM^ICI CURIAE

EAGLE FORUM OF ALABAMA EDUCATION FOUNDATION AND
EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND IN
SUPPORT OF PETITIONER

L . Dean J o h n s o n (JOH046)
L . D e a n J o h n s o n , PC
4 0 3 0 B a l m o r a l D r . SW
H u n t s v i l l e , AL 35801
T e l : (256) 880-58177
Fax:
(256) 880-5187
Email: dean@ldjpc.com
Counsel

f o rMovants

IN

ALABAMA,

C A P A C I T Y AS J U D G E OF P R O B A T E

JUDGE DOES ##1-63,

O F F I C I A L C A P A C I T Y AS A N A L A B A M A

FOR

INTRODUCTION
Pursuant
Education
Defense

t o Rule

Foundation
Fund

seek

accompanying

amicus

petitioner

this

Alabama

traditional

Court's

nationally,

Movants

respectfully

submit

presented
efforts
Movants
raised

i n this

relevant
original

to resolve
have

this

direct

i n

support

Legal
Forum")

file

the

of

the

headquartered

that

than

30 y e a r s ,

Movants

have

defended

traditional

their

In that

review

t o t h e same-sex
will

marriage
process,

of the legal

marriage

issues

a i d t h e Court

pressing issue.
vital

i n

F o r more

and wife.

action

and

"Eagle
to

including

o f husband

issues

or

&

t o Rule 29.

respectively.

values,

o f Alabama

Education

corporations

as t h e union

policy

Forum

leave

brief

defined

and

Forum

pursuant

and

American

Eagle

"Movants"

are nonprofit

and M i s s o u r i ,

both

Eagle

curiae

and r e l a t o r s

Movants

in

and

(collectively,

respectfully

Alabama

27, movants

For these

interests

i n i t s

reasons,

i n the

issues

proffered

amicus

here.

ARGUMENT
Movants
brief
in

respectfully

(hereinafter,

submit

"Eagle

Forum

the following respects:

that

their

Br.")

would

a i dt h e Court

1.

Movants'

Statement

28(a)(3),
amicus
2.

(b) a n d 29

brief

challenge
district

3.

For

Eagle

ability
the

i n Searcy

v.

raised

to

by

Rules

proposed

Forum B r . a t

iii-iv.

of the respondents

orders
Strange,

of

the

No.

( P e t . E x . A)

to

federal

1:14-208-CG-N

a n d Strawser

v.

No.

1:14-

424-CG-C

E x . B)

under

the domestic-relations exception to

jurisdiction

Eagle

Movants'

brief

this

the

issues

and Alabama's

identifies

Court

to

raised

reasons,

grant Movants

(S.D. A l a . J a n . 26, 2015)

sovereign

immunity.

F o r u m B r . a t 9-26.

for

these

outlines

pursuant

issues

See

A l a . J a n . 23, 2015)

federal
See

covers

collaterally
court

Strange,
(Pet.

Jurisdiction

E q u a l i t y Alabama.

Movants'

(S.D.

of

retain

here.

there

the authority
exclusive

See

Eagle

i s good

leave to f i l e

their

and

necessity

jurisdiction

over

Forum B r . a t 26.

cause

amicus

f o r the Court

to

brief.

CONCLUSION
Movants
their

motion

brief

i n this

respectfully
f o r leave

request
to

file

action.

that
the

this

Court

accompanying

grant
amicus

Dated:

February

17,

2015

Respectfully

submitted,

/s/ L. Dean Johnson

L . Dean J o h n s o n (JOH046)
L . D e a n J o h n s o n , PC
4 0 3 0 B a l m o r a l D r . SW
H u n t s v i l l e , AL 35801
T e l : (256) 880-58177
Fax:
(256) 880-5187
Email: dean@ldjpc.com
Counsel
for Movants
Curiae
Eagle
Forum
of
Alabama
Education
Foundation
and
Eagle
Forum Education
& Legal
Defense
Fund

CERTIFICATE OF
I
I

hereby

certify

electronically

accompanying
Court
send

filed

amicus

o f Alabama
notification

that

on t h e 1 7 t h d a y o f F e b r u a r y 2 0 1 5 ,
the

brief,

using

foregoing

with

motion,

the Clerk

the ACIS

of such

SERVICE

filing

filing

of

system,

with i t s

the

Supreme

which

will

to the following:
H o n . R o b e r t M. M a r t i n
Judge of Probate
C h i l t o n County
500 2 n d A v e n u e N o r t h
C l a n t o n , AL 35045
probate@chiltoncounty.org

M a t h e w D. S t a v e r
H o r a t i o G. M i h e t
R o g e r K. G a n n a m
L i b e r t y Counsel
P.O. BOX 54 077 4
O r l a n d o , FL 32854-0774
court@LC.org

H o n . Tommy R a g l a n d
Judge of Probate
Madison
County
100 N o r t h S i d e S q u a r e ,
Room 1 0 1
H u n t s v i l l e , AL 35801
phanson@co.madison.al.us

A. E r i c J o h n s t o n
S u i t e 107
1200 C o r p o r a t e D r i v e
B i r m i n g h a m , AL 35242
eric@aericjohnston.com
Samuel J . McLure
The A d o p t i o n Law F i r m
PO B o x 2 3 9 6
Montgomery, AL 36102
sam@theadoptionfirm.com

H o n . S t e v e n L. R e e d
Judge of Probate
Montgomery County
Montgomery C t y Courthouse
Annex I , T h i r d F l o o r
100 S o u t h L a w r e n c e S t r e e t
M o n t g o m e r y , AL 36104
probate@mc-ala.org

Luther Strange
Alabama A t t o r n e y G e n e r a l
501 W a s h i n g t o n A v e n u e
Montgomery, AL 36130-0152
smclure@ago.state.al.us

J . R i c h a r d Cohen
David
Dinielli
S o u t h e r n P o v e r t y Law C e n t e r
400 W a s h i n g t o n A v e n u e
M o n t g o m e r y , AL 36104
richard.cohen@splcenter.org
david.dinielli@splcenter.or

R a n d a l l C. M a r s h a l l
ACLU o f A l a . Found.
P.O. B o x 6 1 7 9
Montgomery, AL 36106
rmarshall@aclualabama.org

S h a n n o n P. M i n t e r
C h r i s t o p h e r F. S t o l l
Nat'l C t r f o r Lesbian
Rights
870 M a r k e t S t . , S t e . 370
S a n F r a n c i s c o , CA 9 4 1 0 2
SMinter@nclrights.org
CStoll@nclrights.org

Ayesha Khan
Am. U n i t e d f o r S e p a r a t i o n
of Church & State
1301 K S t r e e t ,
N.W.
W a s h i n g t o n , D.C. 2 0 0 0 5
khan@au.org

H o n . A l a n L. K i n g
Judge of Probate
J e f f e r s o n County
716 N. R i c h a r d A r r i n g t o n J r . B l v d .
B i r m i n g h a m , AL 35203
kinga@jccal.org
February

17, 2015

Respectfully

submitted,

/s/ L. Dean Johnson

L. D e a n J o h n s o n ( J O H 0 4 6 )
L. D e a n J o h n s o n , PC
4 0 3 0 B a l m o r a l D r . SW
H u n t s v i l l e , AL 35801
T e l : (256) 880-58177
F a x : (256) 880-5187
E m a i l : dean@ldjpc.com
Counsel
for Movants
Curiae
Eagle
Forum of A^labama
Education
Foundation
and Eagle
Forum
Education
& Legal
Defense
Fund

EXHIBIT
BRIEF FOR A^ICI CURIAE EAGLE FORUM OF ALABAMA
EDUCATION FOUNDATION AND EAGLE FORUM EDUCATION &
LEGAL DEFENSE FUND IN SUPPORT OF PETITIONER

No.

IN
EX

1140460

THE SUPREME COURT OF ALABAMA

PARTE S T A T E

A L A B A M A P O L I C Y I N S T I T U T E AND A L A B A M A
C I T I Z E N S A C T I O N PROGRAM,
Petitioner,

EX R E L .

v.
A L A N L . K I N G , I N H I S O F F I C I A L C A P A C I T Y AS J U D G E OF PROBATE FOR
J E F F E R S O N COUNTY, A L A B A M A , ROBERT M. M A R T I N , I N H I S O F F I C I A L C A P A C I T Y
AS J U D G E OF P R O B A T E FOR C H I L T O N COUNTY, A L A B A M A , TOMMY RAGLAND, I N
HIS

O F F I C I A L C A P A C I T Y A S J U D G E OF PROBATE FOR MADISON COUNTY, A L A B A M A ,

S T E V E N L . R E E D , I N H I S O F F I C I A L C A P A C I T Y AS J U D G E OF PROBATE FOR
JUDGE DOES ##1-63, EACH I N H I S OR HER

MONTGOMERY COUNTY, A L A B A M A , AND

O F F I C I A L C A P A C I T Y AS A N A L A B A M A J U D G E OF P R O B A T E ,

Respondents.

EMERGENCY

PETITION

FOR WRIT

OF

MANDAMUS

BRIEF FOR AMICI CURIAE EAGLE FORUM OF ALABAMA

EDUCATION FOUNDATION AND EAGLE FORUM EDUCATION &
LEGAL DEFENSE FUND IN SUPPORT OF PETITIONER

L. D e a n J o h n s o n ( J O H 0 4 6 )
L. D e a n J o h n s o n , PC
4 0 3 0 B a l m o r a l D r . SW
H u n t s v i l l e , A L 35801
T e l : (256) 880-58177
Fax:
(256) 880-5187
Email: dean@ldjpc.com
Counsel

f o r Amici

Curiae

TABLE OF CONTENTS
Table

of Contents

Statement
Table

of Jurisdiction

of Authorities

i
v

Exhibits

i x

Identity,

Interest

Statement

o f t h e Case

Statement

of Issues

Standard

and A u t h o r i t y

to File

o f Review

Summary o f A r g u m e n t

Argument

I.

Alabama's M a r r i a g e

II.

The P r o b a t e J u d g e s L a c k A u t h o r i t y t o V i o l a t e
Alabama's M a r r i a g e Laws, a n d t h e F e d e r a l
C o u r t s L a c k A u t h o r i t y t o Command O t h e r w i s e
A.

B.

Laws A r e C o n s t i t u t i o n a l

Alabama's C o n s t i t u t i o n Denies Alabama's

Probate Judges t h e A u t h o r i t y t o Issue
Same-Sex M a r r i a g e L i c e n s e s

F e d e r a l Courts Lack A u t h o r i t y over t h e

R i g h t t o M a r r y u n d e r S t a t e Law

1.

2.

A r t i c l e I I I ' s Grant o f A u t h o r i t y t o
the Federal J u d i c i a r y Excludes
J u r i s d i c t i o n over M a r r i a g e Cases

13

The D o m e s t i c - R e l a t i o n s E x c e p t i o n t o
Federal J u r i s d i c t i o n Denies t h e
Lower F e d e r a l C o u r t s J u r i s d i c t i o n
over M a r r i a g e Cases

14

3.

C.

The L o w e r F e d e r a l C o u r t s ' A u t h o r i t y
o v e r M a r r i a g e R i g h t s May Be M o r e
N a r r o w t h a n t h e Supreme C o u r t ' s
A u t h o r i t y under A r t i c l e I I I

19

F e d e r a l J u d g m e n t s A r e Open t o C o l l a t e r a l
A t t a c k f o r V i o l a t i n g Alabama's Immunity
f r o m S u i t i n F e d e r a l C o u r t , as W e l l as
for Exceeding Federal Authority

21

I I I . In A d d i t i o n to Alabama's R e l i e f Requested,
t h i s Court Should Retain E x c l u s i v e
J u r i s d i c t i o n t o Ensure Compliance w i t h Alabama
Law

26

Conclusion

26

Certificate

of

Service

28

ii

STATEMENT OF JURISDICTION
This

Court

necessary

to

has

give

courts

of inferior

CONST.

1901;

State

o f Alabama

Diamond
Court

v.

original

jurisdiction

i t general

supervision

jurisdiction."

12-2-7(3),

ALA.

has obvious

and

VI,

may

be

control

of

140(b), ALA.

1 9 7 5 . The

CODE

petitioner

standing to protect

U.S.

54,

has t h e independent

duty

t o s u p e r v i s e Alabama's

Insofar

respondents'
authority

as

clear

to bring

this

public
this

action
duties,

action

62-65

i t s laws,

476

courts.

Charles,

Art.

"as

seeks

(1986),

to

the private

and

this
lower

enforce

the

relators

have

on b e h a l f o f t h e S t a t e :

A mandamus p r o c e e d i n g t o c o m p e l a p u b l i c
o f f i c e r t o perform a l e g a l duty i n which
the
public
has
an
interest,
as
distinguished
from
an
official
duty,
a f f e c t i n g a p r i v a t e i n t e r e s t merely, i s
p r o p e r l y b r o u g h t i n t h e name o f t h e S t a t e
on t h e r e l a t i o n o f one o r more
persons
interested
i n t h e performance
of
such
duty
to the public,
unless the matter
concerns
the sovereign
rights
of the
State,
i n
which
event
i t must
be
instituted
on
the
relation
of
the
Attorney General, the law o f f i c e r of the
State.
Gray

v.

293,

294

proceed
143

State

ex r e l . Garrison,

2 3 1 A l a . 2 2 9 , 2 3 0 , 164 S o .

( A l a . 1935) ( r e l a t o r s
i n S t a t e ' s name);

A l a . 145,

147,

42

require

Jackson
So.

61,

"public

v. State
62

interest" to

ex r e l .

( A l a . 1904)

Tillman,
(citing

Montgomery
157
may
of

v.

State

( A l a . 1894))

ex

r e l . Enslen,

(members

challenge a judge's
Jefferson

74,

Cty.

131

(relators
The

have

"community

enforcing

Meredith,

in

274

the

(sufficient

statistics)
2d

in

third-parties'

uniquely

affect

that

the p e t i t i o n

186,

tax

the

arose

circa

So.

January

timely.

iv

Educ.

A l a . 70,
cases)

2d

308,

in

Rodgers
314-15

public

The

action
23-26,

third
brought
2015,

the
bring

reporting

public

as

in
to

273 A l a . 390,

Alabama

original

laws

Compare

assessments).

such

of

interest

(insufficient

issues

an

name.

Morris,

entire

Bd.

i n the subject-matter").

interest
v.

So.

relators

222

marriage

146

as

18

(collecting

sufficient

( A l a . 1962)

As

was

public

sovereign

assessments.
actions

170

interest

State's

Morrison

So.

actions

169,

with

1930)

Alabama's

A l a . 179,

filing

r e l . Kuchins,

(Ala.

has

A l a . 372,

to hold office);
ex

242

public

action

1962)

State

239,

respondents'

of the public

right

So.

general

this

v.

107

v.
(Ala.
prison

392,

141

interest

respondents'
and

are

parties'
to

not
tax

contest

the f i l i n g

of

TABLE OF AUTHORITIES
CASES
Adoptive
133

Couple
v. Baby
Girl,
S . C t . 2552 (2013)

Agostini
521

v.
Felton,
U.S. 2 0 3 ( 1 9 9 7 )

Ala.

21
7-8

Dep't of Corr.
v. Montgomery
11 S o . 3 d 1 8 9 ( A l a . 2 0 0 8 )

Alden
v.
Maine,
527 U.S. 7 0 6

County

Comm'n,
25
2

(1999)

Am. Elec.
Power Co. v.
131 S . C t . 2 5 2 7 ( 2 0 1 1 )

Connecticut,
4

Am. Well Works v.

Layne,
2 4 1 US 2 5 7 ( 1 9 1 6 ) ...

19

Ankenbrandt
v.
R^ichards,
504 U.S. 689 ( 1 9 9 2 ) .

15

Baker
v.
Nelson,
2 9 1 M i n n . 3 1 0 , 1 9 1 N.W.2d 1 8 5 ( M i n n .

1971)

Baker
v.
Nelson,
409 U.S. 810 ( 1 9 7 2 )

5 , 7 - 8 , 18

Barber
v.
Barber,
62 U.S. ( 2 1 How.) 582 ( 1 8 5 9 )

1 0 - 1 1 , 1 4 , 15

Bd. of Educ. of Jefferson

Cty. v. State
ex r e l .
222 A l a . 7 0 , 1 3 1 S o . 2 3 9 ( A l a . 1 9 3 0 )
Burt

Kuchins,
i v

v.
State,
39 A l a . 617 ( A l a . 1 8 6 6 )

Califano
430

10

v.
Sanders,
U.S. 99 ( 1 9 7 7 )

Chem. Mfrs.
Ass'n
v. Natural
470 U.S. 1 1 6 ( 1 9 8 5 )
Chicago
143

& G.T. Ry. Co. v.

U.S. 3 3 9 ( 1 8 9 2 )

Diamond
476

v.
Charles,
U.S. 54 ( 1 9 8 6 )

16
Res. Def.

Council,

Inc.,
1 5 , 17-18

Wellman,
25
i

Dolgencorp,
28 S o .
Ex
Ex

Inc.
v.
Taylor,
3 d 737 ( A l a . 2 0 0 9 )

parte
Kimberly-Clark
Corp.,
779 S o . 2 d 178 ( A l a . 2 0 0 0 )
parte
Young,
209 U.S.
123

(1908)

Fed'l
Maritime
Comm'n v.
535 U.S. 743 ( 2 0 0 2 )
F i r s t Nat'l
Bank v.
223 A l a . 2 2 , 134
Fourco
Glass
353 U.S.

Co.
222

26
2,

South

Carolina

v. Transmirra
(1957)

Products

Heckler
465
Hicks
422
In

re
136

Jackson
143

Corp.,
17

2003)

10
i

i
2

Drown,
729 ( 2 0 0 9 )

16

Mathews,
728 ( 1 9 8 4 )

24

v.
Miranda,
U.S. 332 ( 1 9 7 5 )

v.
U.S.

Burrus,
U.S. 586

(1890)

v. State
ex r e l .
A l a . 1 4 5 , 42 S o . 61

Loving
v.
206 V a .

10
Tillman,
( A l a . 1904)

Commonwealth,
9 2 4 , 147 S . E . 2 d 78

(Va.

Loving
v.
Virginia,
388 U.S.
1 (1967)
Mandel
v.
432 U.S.
Maynard
125

26
14-15,

v.
Louisiana,
134 U.S.
1 (1890)

Haywood
v.
556 U.S.

Auth.,

Bradley,
S o . 621 ( A l a . 1931)

v. State
ex r e l .
Garrison,
231 A l a . 2 2 9 , 164 S o . 293 ( A l a . 1935)

Hans

Ports

18

Goodridge
v. Dep't of Pub.
Health,
440 M a s s . 3 0 9 , 798 N . E . 2 d 941 ( M a s s .
Gray

State

17

1966)

i i i - i v
20
20

Bradley,
173 ( 1 9 7 7 )

7-8

v. H i l l ,
U.S.
190 ( 1 8 8 8 )

14

vi

Merrell
478

Dow Pharm.,
Inc.
U.S. 804 ( 1 9 8 6 )

v.

Thompson,
1 1 , 1 6 , 19

Michael
H. v. Gerald
D.,
491 U.S. 110 ( 1 9 8 9 )
Morales
504

v. Trans
U.S. 374

20-21

World
A^irlines,
(1992)

Morrison
v.
Morris,
273 A l a . 3 9 0 , 1 4 1 S o . 2 d 169
Mt.

Healthy
City
429 U.S. 274

Sch. Dist.
(1977)

Bd.

Inc.,
2
( A l a . 1962)
of Educ.

v.

v. Defenders

of

Wildlife,
1 5 , 17

Nelson
Realty
Co. v. Darling
Shop of Birmingham,
267 A l a . 3 0 1 , 1 0 1 S o . 2 d 78 ( A l a . 1 9 5 7 )
York Trust
Co. v.
256 U.S. 3 4 5 ( 1 9 2 1 )

Doyle,
12

Nat'l
Ass'n
of Home Builders
5 5 1 U.S. 644 ( 2 0 0 7 )

New

i v

Inc.,
26

Eisner,
16

Osborn
v. Bank of the U.S.,
22 U.S. (9 W h e a t . ) 738 ( 1 8 2 4 )

19

Palmore
466

20

v. S i d o t i ,
U.S. 429 ( 1 9 8 4 )

Perez
v.
Ledesma,
401 U.S. 82 ( 1 9 7 1 )
Rescue
Army v. Municipal
3 3 1 U.S. 5 4 9 ( 1 9 4 7 )

17
Court

of City

of Los

25

Reynolds
v. U.S.,
98 U.S. 1 4 5 ( 1 8 7 8 )
Rodgers
274

14

v.
Meredith,
A l a . 1 7 9 , 146 S o . 2 d 308

( A l a . 1962)

Searcy
v. Strange,
No. 1 : 1 4 - 2 0 8 - C G - N
(S.D. A l a . J a n . 2 3 , 2 0 1 5 )
Sosna v. Iowa,
419 U.S. 3 9 3

i v

1 , 3 , 5 , 9, 2 0 , 22-23

(1975)

25

State
v. Cawood,
2 S t e w . 360 ( A l a . 1 8 3 0 )
Steel
Co. v. C i t i z e n s for
523 U.S. 83 ( 1 9 9 8 )

Angeles,

a Better

Env't,
21

vii

Strawser
v. Strange,
No. 1 : 1 4 (S.D. A l a . J a n . 2 6 , 2 0 1 5 )
Summers
555

v. Earth
U.S. 488

Island
(2009)

424-CG-C
1 , 3 , 5 , 9, 2 0 , 22-23

Inst.,
12

Summit Medical
Ass'n,
P.C. v.
Pryor,
180 F . 3 d 1 3 2 6 ( 1 1 t h C i r . 1 9 9 9 )
T a f f l i n v.
493 U.S.

Levitt,
455 (1990)

Travelers
Indem.
557 U.S. 137
Troxel
v.
530 U.S.

v.
U.S.

18

Co. v.
(2009)

Bailey,
4 - 5 , 22-23

Granville,
57 ( 2 0 0 0 )

U.S. v.
Windsor,
133 S . C t . 2 6 7 5
Vasquez
503

21

(2013)

7 - 8 , 20

Harris,
1000 (1992)

26

STATUTES
U.S. CONST. a r t . I I I

5 , 1 1 - 1 3 , 1 5 , 1 7 , 19-21

U.S. CONST. a r t . I I I , 2

13

U.S. CONST. amend. X

18

U.S. CONST. amend. X I

U.S. CONST. amend. X I V

U.S. C O N S T .

1 , 19

amend. X I V , 1 , c l . 3

U.S. CONST. amend. X I V , 1 , c l . 4

28

U.S.C.

1257

20

28

U.S.C.

1331

16-19

28

U.S.C.

1343

17-18

28

U.S.C.

1346(a)(1)

20

1983

17

42 U.S.C.
Art.

I , 36.03,

Art.

V I , 140(b),

12-2-7(3)
30-1-19,

A L A . CONST.

1901

ALA. CONST.

1901

A L A . CODE 1 9 7 5
A L A . CoDE 1 9 7 5

1
i

i
1

viii

Civil

R i g h t s A c t o f 1871,
17 S t a t . 13

17

J u d i c i a r y A c t o f 1875,
18 S t a t . 470
Pub.

17

L . No. 9 6 - 4 8 6 , 2 ( a ) ,
94 S t a t . 2 3 6 9 ( 1 9 8 0 ) .

16

RULES AND

REGULATIONS

ALA.

R U L E S OF P R O F ' L CONDUCT,

R u l e 1.2(d)

24

ALA.

R U L E S OF P R O F ' L CONDUCT,

Rule

23

8.4(d)

OTHER AUTHORITIES
Baker

v. Nelson,
No. 7 1 - 1 0 2 7 ( U . S . ) ,
J u r i s d i c t i o n a l S t a t e m e n t ( O c t . T e r m 1972)

Strawser
v. Strange,
No. 1 : 1 4 - 424-CG-C (S.D. A l a . ) ,
Emergency V e r i f i e d M o t i o n by J e f f e r s o n
County
P r o b a t e Judge A l a n K i n g f o r Leave t o I n t e r v e n e
as a P a r t y as o f R i g h t o r , i n t h e A l t e r n a t i v e , b y
P e r m i s s i o n (Feb. 15, 2015)

EXHIBITS
Baker

v. Nelson,
No. 7 1 - 1 0 2 7 ( U . S . ) ,
J u r i s d i c t i o n a l S t a t e m e n t ( O c t . T e r m 1972)

ix

A1

IDENTITY, INTEREST AND AUTHORITY TO FILE

Amici

curiae

Foundation

and Eagle

(collectively,
the

these

defined

reasons

motion,

Amici

raised

here.

and
have

leave

those
direct

to file

values,

the union

of

Education

Defense
this

30 y e a r s ,
including

husband

set forth
and v i t a l

Alabama
& Legal

F o r more t h a n

American

as

of

Education

seek

motion.

traditional

marriage

Forum

Forum

"Amici"),

accompanying

defended

Eagle

i n

brief
Amici

by
have

traditional

and w i f e .

the

interests

Fund

For

accompanying
i n the issues

STATEMENT OF THE CASE

In
23,

Searcy

v. Strange,

No. 1 : 1 4 - 2 0 8 - C G - N

2 0 1 5 ) ( P e t . E x . A ) , a n d Strawser

424-CG-C

judge

Callie

General

from

enforcing

Granade

A r t . I , 36.03,

Marriage

Protection

Act,

(collectively,

"Alabama's

the

Amendment

Fourteenth

the Attorney

Alabama's

Marriage

e n j o i n e d t h e Alabama

Laws")

to the United
h a s no

t h e Searcy

of

federal
Attorney
Marriage

1901 a n d t h e Alabama

30-1-19,

Marriage

General

Laws,

Sanctity

A L A . CONST.

Jan.

No. 1 : 1 4 -

( P e t . Ex. B ) ,

Alabama's

Amendment,

Because

v. Strange,

(S.D. A l a . J a n . 26, 2015)

district

(S.D. A l a .

ALA.

1975

CODE

as a v i o l a t i o n o f

States

Constitution.

authority

a n d Strawser

to

enforce

cases

both

violate

Alabama's

suits

against

Louisiana,
728

U.S.

Young

applies
are

the

134 U.S.

(1999);

parte

209

U.S.

Ass'n,

P.O.

v.

123,

exception

to

defendant

has

of

374,

180
Ex

Alabama's
any

law").

'who

see

sovereign

Trans

Young

parte
Medical

( 1 1 t h C i r . 1999)
operate

exception
inapposite
to

and

Ex

as

where

enforcement

authority

Ex

World

Summit

immunity

the

the

immunity

(quoting

cannot

706,

threaten

v.

also

v.

of

an
no
the

t o Alabama's
because

implement

the
the

s t a t e law.

the action

the

relation

(hereinafter,

violating

lacks

(1992)

plainly

527 U.S.

Morales

Young

T h e Ex parte

In

probate

officers

to

Hans

sovereign

F.3d 1326, 1341

connection

officer

court.

Significantly,
to

(1908));

parte

i s , therefore,

challenged

XI.

382

unconsented-to

v. Maine,

exception

156

Pryor,

doctrine

defendant

Alden

proceedings.'"

U.S.

as

federal

amend.

CONST.

504

Young,

immunity

in

to "enjoining state

Inc.,

challenged

immunity

(1890);

t o commence

Airlines,

on

State

officer-suit

only

about

("the

sovereign

judges

before
of

two

"Alabama")

this

Alabama
seeks

(hereinafter,

Alabama

law -

Court,

and

to
the

the State

o f Alabama

public-interest
enjoin
"Probate

thereby

the

groups

respondent

Judges")
exceeding

from
their

authority
Judge

- by

Granade's

Attorney

same-sex

marriage

Searcy-Strawser

orders

licenses
against

based

on

t h e Alabama

General.

over
King

issuing

t h e weekend,

one

of the respondents

- m o v e d t o i n t e r v e n e i n t h e Strawser

here

Judge

litigation:

Judge
King
faces
an
imminent
risk
of
being
subjected to a state court
order
that
will
put him i n the p o s i t i o n
of
having t o choose e i t h e r t o d i s r e g a r d t h e
United States Constitution,
w h i c h he i s
sworn t o uphold,
thereby
s u b j e c t i n g him
to
liability
and
perhaps
personal
liability
f o r damages a n d a t t o r n e y f e e s ,
or
to disregard
a
state
court
order
thereby
subjecting
him
to
contempt
proceedings,
sanctions
and/or
possible
impeachment under Alabama l a w . Judge K i n g
seeks r e l i e f from t h i s Court.
Strawser,

No.

Jefferson

County

Intervene

1,

be

at

leave

Judge

"provide

Probate

as a P a r t y

Permission,
seeking

1:14-424-CG-C,

entitled."

(Feb.

nonetheless

a l l other
Id.

Judge

Alan

as o f R i g h t

to intervene

King

Emergency

15,
"as

Verified
King

for

Motion

by

Leave

to

or, i n the Alternative,

2015).
a

asks

further relief

party
the

Although

nominally

Defendant,"
district

t o which

Judge

by

id.

at

court

to

King

may

a t 3.

STATEMENT OF ISSUES
In

addition

to

the

issues

set

forth

in

Alabama's

petition,

Amici

respectively

submit

consider

whether

t h e Probate

Judges

collaterally
so,

whether

t o challenge
t h e Probate

Judge

In
evade
the

addition,
this

of

Court's

Strawser

efforts

jurisdiction

at "friendly

this

have

a basis

Court

should

further

i f

Alabama

Laws.
attempt

t o intervene

t o evade

require

which

and,

under

King's

by moving

must

on

orders

duty

t o Judge

litigation"

o f Alabama

have

Court

Alabama's M a r r i a g e

respect

litigation,

t h e People

Court.

with

this

Granade's

Judges

l a w t o do s o b e f o r e v i o l a t i n g

that

consider

into

whether

the popular
actions

See, e.g., A L A . R U L E S OF P R O F ' L CONDUCT, R u l e

to

will

by

this

8.4(d).

STANDARD OF REVIEW
This

Court's

review

federal

l a w i s de novo:

as

adjudicators,

sole

decisions
court."
2540
n.5
are

binding

(Ala.

federal

lack

Power

2009)

here,

court over

Alabama

law and

district

judges,

sitting

t o render

precedential

members

o f t h e same

even

Oo. v. Connecticut,
Inc. v. Taylor,

("United

this

of both

authority

judges,

Dolgencorp,

not controlling

relevant

"federal

other

Am. Elec.

(2011);

of issues

States

authority
Court
Alabama

de novo.

2527,

28 S o . 3 d 7 3 7 ,

district

i nthis

reviews

131 S.Ct.

court

decisions

C o u r t " ) . Moreover,

the jurisdiction
Travelers

744

Indem.

as

o ft h e
Oo. v.

Bailey,

5 5 7 U.S. 1 3 7 ,

152-53

& n.6 ( 2 0 0 9 ) .

SUMMARY OF ARGUMENT
At

the

Granade's
U.S.

outset,

holdings

Supreme

Nelson,

on same-sex

Court's

Marriage
issuing

federal

Laws

same-sex

courts'

orders

are

define

t h e lower

federal

courts

broad,

England

legal

a t the

time

marriage

directly

Since
under

the

law-and-equity

the Constitution

of jurisdiction

district

statutes

that

confine t h e

While

t h a t may
structure

Article

courts'

constituted

continue

and i n d i r e c t l y
federal

III

subject-

at law nor a

t o t h e lower

from

Courts.

drafted

limits

Alabama's

t h ecourt

o f what

case

lacking

U.S.

and the

federal

v.

claims

Judges

jurisdiction

t h e question
a

same

as

on Alabama

Framers

t h e lower

was n e i t h e r
those

and

Under

with t h e

event,

a t law and equity.

that

defined

jurisdiction,

equity.

grants

t o cases

courts'

i t i s not complete.

Congress

matter

licenses,

Constitution

federal

the

t h e Probate

controlling

both

any

Judge

i n Baker

litigation

prohibit

not

rejected

In

of

conflict

decision

which

question.

marriage

Significantly,

and

controlling

clearly

merits

marriage

i n t h e Searcy-Strawser

substantial

in

substantive

4 0 9 U.S. 8 1 0 ( 1 9 7 2 ) ,

asserted

sound

the

case i n
t o apply

under t h e
courts, the

"domestic-relations
which
the

courts
federal

have

exception"
long

district

court.

Moreover,

exception

t o federal

Alabama's

sovereign

immunity

Judge
to

court,

enforce

Judges
Laws

have

before

ensure

over

her orders.

acquiescing

this

this

Given

with

Court

original

may

baseless

Alabama

should

as

to

that

attack

anyone
the

Alabama's

seeks

Probate
Marriage

federal

exclusive

as

suits i n

order.

l a w and complete

retain

well

collaterally

defense,

t o defend

the domestic-

unconsented-to

that

to a

jurisdiction

under

i n t h e event

the obligation

compliance

relief,

Judges

jurisdiction

jurisdiction

jurisdiction,

from

t h e Probate

Granade's

federal

recognized - denies

relations

federal

to

To

equitable

jurisdiction

action.

ARGUMENT
I.

ALABAMA'S MARRIAGE LAWS ARE CONSTITUTIONAL

Before

both

discussing

t h e Probate

first

merits.
rejected
Process

Judges

emphasize

jurisdiction

the jurisdictional

that

Judge

and t h e lower
-

and Equal

that

federal

addition

Granade

T h e U.S. S u p r e m e
t h e concept

i n

also

Court

to

already

Clauses

courts,

acting

i s simply

wrong

on
Amici

without
on t h e

has considered and

the Fourteenth

Protection

constraints

Amendment's

include

Due

federal

right

to

same-sex

310,

191

N.W.2d

sex

couple,

Minnesota
Supreme

marriage.

185

to

(1972).

Supreme

2675
been

decided

(2013)
amended

in

the

binding

on

173,

the
176

same-sex

in

of
and

done

so

of

any

same-

and

benefits

that

marriage,

v.

and

for

the

want

Nelson,

409

in

U.S.

course,

the
way

v.

U.S.
of

U.S.

r e v e r s e d Baker

material

to

Court

necessarily

federal

(1977).

Given

follow

Supreme C o u r t

resolved

substantial

lower

marriages,

obligation

not

Minn.

plaintiffs,

appeal

has

and,

f o r want

"presented

U.S.

Supreme

issues

U.S.

their

291

a
810

despite

Windsor,

133

Constitution

has

since

was

Baker

1972.

Because
dismissed

have

Nelson,

rights

husband-wife

Court

v.

the

q u e s t i o n . Baker

opportunity to

S.Ct.
not

The

same

dismissed

federal

Baker

1971),

the

conveyed

substantial

the

(Minn.

sought

Court

In

the
that

lower

Baker

and

federal

question,

the

in

are

Mandel

v.

remains

federal

authority

to reverse

summarily

decided"

courts.
that

Baker

and

Baker

Bradley,
on

point

for

courts

have

an

i t to

the

leave

Baker:

"[I]f
a
precedent
of
this
Court
has
d i r e c t a p p l i c a t i o n i n a case, yet appears
t o r e s t on r e a s o n s r e j e c t e d i n some o t h e r
l i n e of d e c i s i o n s , the Court of Appeals
should
follow
the
case
which
directly
controls,
leaving
to
this
Court
the
7

432

prerogative
decisions."
Agostini

v.

quotation

omitted).

summary
time
Hicks

Felton,

decisions

as

against
laws.
and

federal

forecloses

for

"lower

[they]

are

laws

applied

to reject

the conclusion

(1975)

Court
its

that

a r e bound by
until

Windsor

that

(interior

Court

332, 344-45

believed

failure

courts

that

course,

own

(1997)

Supreme]

t h e Supreme

marriage

i t s

2 0 3 , 237

[them]

U.S.
Of

Court

The C o u r t ' s

controlling.

II.

informs

omitted).

t h e Supreme

U.S.

[ t h e U.S.

422

opportunity

overruling

Accordingly,
by

Miranda,

quotations

if

521

t h e Court

v.

obvious

of

Windsor
to

Baker

not."

(interior

presented
t o have

Baker

such

an

done s o ,
reasoning

state

marriage

speaks

volumes

i s no

longer

THE PROBATE JUDGES LACK AUTHORITY TO VIOLATE ALABAMA'S

MARRIAGE LAWS, AND THE FEDERAL COURTS LACK AUTHORITY TO
COMMAND OTHERWISE
Amici

r e s p e c t f u l l y submit

that

t h e Probate

Judges

lack

T h e Baker
jurisdictional
statement p l a i n l y
presented
the q u e s t i o n whether d e n y i n g same-sex m a r r i a g e v i o l a t e s t h e
C o n s t i t u t i o n ' s e q u a l - p r o t e c t i o n and due-process r i g h t s that
Plaintiffs
here
assert.
Baker
v. Nelson,
No.
71-1027,
J u r i s d i c t i o n a l S t a t e m e n t a t 3 (U.S. O c t . Term 1 9 7 2 ) . Under
Mandel
a n d Hicks
t h e n , Baker
necessarily decided that
there
i s no b a s i s u n d e r f e d e r a l e q u a l - p r o t e c t i o n
or due-process
a n a l y s i s t o s u p p o r t t h e c l a i m t h a t same-sex r e l a t i o n s h i p s
deserve
t h e same
recognition,
rights,
or benefits
as
husband-wife marriage.
1

authority
of

to

Alabama

orders.

same-sex

law,

notwithstanding

Moreover,

jurisdiction
obligation
anyone

issue

because

to

attack

to enforce

wholly

support

Marriage

Laws

same-sex

marriage

Strawser

litigation.

lower

infra,

court's

Probate

court
Judges

collaterally

lacks

have

i f and

the
when

orders.

Probate

licenses
See

in

Pet.

response

at

11-19.

to

orders

are

open

retain

not

only

Amici
assert

exclusive

resolved.

See

to

III,

issuing

the

Searcybecause

Section

submit

i t s jurisdiction

Section

from

collateral

respectfully

jurisdiction

Alabama's

Moreover,

their

II.C, infra,

that

Judges

jurisdiction,

must

B.

the

argument

lack

must

finally

prohibit

Alabama's

courts

Court

until

here,
this

II.B,
attack,

that

this

but
matter

also
is

infra.

F e d e r a l Courts Lack A u t h o r i t y over the R i g h t to

Marry under State Law

In Alabama,

t h e common l a w p r e v a i l s

the Constitution,

State

district

federal

and

Section

by

the

violation

federal

the

orders

in

Alabama's C o n s t i t u t i o n Denies Alabama's Probate

Judges the A u t h o r i t y to Issue Same-Sex Marriage
Licenses

Amici

the

the

licenses
the

the

f o r i t s orders,

attempts

A.

marriage

v.

Cawood,

the

2 Stew.

Legislature,
360,

362

except
or

an

as

abrogated

Alabama

( A l a . 1 8 3 0 ) . As

court.

with

most

American
from

jurisdictions,

the English

naturally

looks

common-law

issues.

1866).

voluntary

union

exclusion

of

Health,

440

(quoting
Thus,
the

common
to

In English

v.

o f o n e man

of marriage

6 1 7 , 629

was d e f i n e d

v.

N.E.2d

Dep't
941

A l l

(Ala.

to the

of

Pub.

(Mass.

2003)

175

(1866)).

E.R.

i n Alabama

on

as " t h e

a n d o n e woman,

Goodridge

[1861-1873]

therefore

authoritative

39 A l a .

3 0 9 , 3 4 3 , 798
Hyde,

as

adopted

has always

been

definition.
our federal

sovereign

i n

Government,

recognized

cases

State,

l a w was

and Alabama

law, marriage

for life

Mass.

Reflecting

Federal

v.

common

the definition

remain

English

Burt

common

l a w , id.,

a l l others."

Hyde

current

Alabama's

structure,

the

spheres

the

U.S.

i n which

not

delegated

Supreme

"domestic-relations"

the states

Court

exception

to the
has

to

long

federal

jurisdiction:
The
whole
subject
of
the
domestic
r e l a t i o n s o f husband and w i f e , parent and
c h i l d , belongs t o t h e laws o f t h e States
and n o t t o t h e laws o f t h e U n i t e d S t a t e s .
In

re

Supreme

Burrus,
Court

jurisdiction
subject

136 U.S.
previously

5 8 6 , 593
had

i n the courts

of divorce,

(1890).

"disclaim[ed]

of the United

either

10

Indeed,

t h e U.S.

altogether
States

as an o r i g i n a l

any

upon t h e

proceeding

i n

chancery

o r as an i n c i d e n t

Barber,
has

62

both

U.S.

to divorce

(21 How.)

a statutory

582,

same
on
the

limits

that

judicial

807

course,

I I I _

statutes^

provide

Court."

Of

Merrell

(1986).

Dow

federal

this

type

created

the

federal

in

law and

over
equity.

III's

grant

equity

encompasses
below,

hear

Inc.

v.

with

focuses

not

power

but

the f u l l
available

i s

constitutional

issues

of

litigation

11

under'

this

478 U.S.

804,

Congress

issue

when

civil-rights
question
cases

domestic

i t

their
cases

i s whether
i n law and

relations.

Judge

need

scope o f

established

over

before

thing.

to

whether

and

on

the lower

'arising

Thompson,

and

of j u r i s d i c t i o n

the

the

and Congress

domestic-relations
courts

The

one

cases

issue

federal-question

Article

explained

of

and i t

pose

i t created

I I I makes

statutory

included

exception

questions

judicial

when

courts

Article
Pharm.,

The

jurisdiction

to

v.

and where i t ends.

i s not s e l f - e x e c u t i n g , "

that

That

t h e t w o a r e n o t t h e same

power

the lower

power

intended

Barber

component,

but the statutory

of the federal

Congress

courts.

starts

constitutional

issue,

limits

"Article

federal
not

and

etymological

federal
The

statutory

the outer

(1859).

and a c o n s t i t u t i o n a l

c o n c e r n s b o t h where l i t i g a t i o n
The

584

a vinculo."

Granade

As
may

present
starts

only
-

e.g.,

whether
such

the

cases

arise

from
As

statutory

state

U.S.

federal

Supreme

state

courts.
Supreme

has

where

litigation

without

addressing

power

to

Constitution

Court

these

of

court

Court

the federal

I I I contexts,

courts

or

question

under

t h e U.S.

Article
of

the

has s t a t e d

questions

intervene

when

often

those

in

cases

i n analogous

go t o t h e p r o p e r

role

i n our democracy:
In l i m i t i n g t h e j u d i c i a l power t o "Cases"
and
"Controversies,"
Article
I I I of the
Constitution
restricts
i t
to
the
traditional
role
of
Anglo-American
courts,
which i s t o redress
or prevent
actual or imminently threatened i n j u r y to
persons
caused
by
private
or
official
v i o l a t i o n o f l a w . E x c e p t when n e c e s s a r y
in the execution of that function,
courts
have
no
charter
to review
and
revise
legislative
and e x e c u t i v e
action.
This
limitation
" i s founded i n concern
about
the p r o p e r - and p r o p e r l y
limited - role
of the courts i n a democratic s o c i e t y . "

Summers

v.

(quoting
Mt.

of

as

to

here

Educ.
to

the

492-93

498
v.

existence

that

whether

(2009)

(1975));

Doyle,

inquire

submit

i s that

12

488,

490,

obliged

respectfully

question

U.S.

U.S.

Bd.

are

arises

Amici

555

422

Dist.

("we

doubt

the

Inst.,

Seldin,

Sch.

(1977)

jurisdiction").
to

v.

City

278

whenever

answer

Island

Warth

Healthy

274,

Earth

429
sua

cf.
U.S.
sponte

of

federal

the

correct

or

not

the

U.S.

Supreme

state

Court

court -

the

has

jurisdiction

lower

federal

over

an

courts

appeal

lack

from

jurisdiction

here.

1.

A r t i c l e I I I ' s Grant of A u t h o r i t y to the

F e d e r a l J u d i c i a r y Excludes J u r i s d i c t i o n over
Marriage Cases

Constitutionally,
of

the

the

judicial

power

Supreme C o u r t )

there

is

conveyed

by A r t i c l e

question

to

federal

as

to

the

courts

scope

(including

I I I , 2:

The
judicial
power s h a l l
extend to a l l
c a s e s , in law
and
equity,
arising
under
t h i s C o n s t i t u t i o n , the laws of the U n i t e d
S t a t e s , a n d t r e a t i e s made, o r w h i c h
shall
b e made, u n d e r t h e i r
authority;
to a l l
cases a f f e c t i n g ambassadors, other p u b l i c
ministers
and
c o n s u l s ; to a l l cases
of
admiralty
and m a r i t i m e
jurisdiction;
to
c o n t r o v e r s i e s to which the U n i t e d States
shall
be
a
party;
to
controversies
b e t w e e n two
o r more
states;
between
a
state
and
citizens
of
another
state;
between
citizens
of
different
states;
between
citizens
of
the
same
state
c l a i m i n g lands under grants of d i f f e r e n t
states,
and
between
a
state,
or
the
citizens
thereof,
and
foreign
states,
c i t i z e n s or subjects.
U.S.

CONST.

lies

in

did

not

ratified
heard

art.

the

term

include
the

before

I I I , 2
of

(emphasis

art

"cases

law

Court

of

Specifically,
King's

13

Bench

The

and

marriage-related issues

Constitution.
the

in

added).

equity,"

when
cases
or

uncertainty

the
at

the

which
states

law
Court

were
of

Common

Pleas,

Court

of

and

Exchequer

Ecclesiastical
like

the

the

cases
or

[was]

for

the

of

the

rights

(1878);

trial
of

125

U.S.

the

Court

206

need

not

statutory

question

decide

issue

least

limited

to

actions

conclusively

changes
language

v.
at

only

most

and

offences
98

cf.

i t in deciding
resolves

separation

the

Amici

cases

civil[,]

U.S.,

5 97;

Although

likely

initially,

jurisdiction

to

U.S.

1787,

raise

against
145,

Maynard

the

the

appropriate

U.S.

this

of

v.

this
case

165
Hill,

issue,
because

jurisdictional

The Domestic-Relations E x c e p t i o n to F e d e r a l
J u r i s d i c t i o n Denies the Lower F e d e r a l Courts
J u r i s d i c t i o n over Marriage Cases

provide

text

causes

the

presented.

2.

At

(1888).

the

be

Reynolds

In

"upon t h e

from

matrimonial

before

marriage-related

Granade:

to

heard

Chancery.

hear

supposed

62

were

of

courts

Barber,

190,

Court

Judge

marriage."

accord

equity

could

ecclesiastical

ecclesiastical

the

the

Courts

ones b e f o r e

in

did

not

to
at

a l l relevant
the

lower

law

intend

or
the

confer

a d d i t i o n a l powers

of

or

law
in

the

policy
revision

in

are

to

1948
not
be

unless

14

acts

federal
equity,

Congress
courts
and

already

intent

to
were

Congress

modernization

presumed
an

of

of

that

conferred:
from
to

"no

changes
make

of

such

changes

is

Transmirra

clearly
Products

Congress

meant

Corp.,
by

marriage-related
subsequently
includes

expressed."
353

"cases

cases,

finds

that

Fourco

U.S.

in

Glass

222,

law

even

i f

that

same

227

and

the

Co.

(1957).

equity"

U.S.

in

What

excluded

Supreme

phrase

v.

Court

Article

III

them:
Whatever
Article
I I I may
or
may
not
p e r m i t , we t h u s a c c e p t t h e Barber
dictum
as
a
correct
interpretation
of
the
Congressional grant.

Ankenbrandt
Court

v.

i n Ankenbrandt

relations
divorce,
torts

Richards,

such

as

distinction

no

reason

to
or

supports

to

jurisdiction

Id.

at

exception

torts

in

689,

700

narrowing

"involving

of
the

decree,"

704.

f a r as

As

the
(an

right

issue

contrast

a t law and

in

the

The

domestic-

but

of

not

i t goes,

to marriage

that

to

(1992).

issuance

custody

including

decide),
over

cases
child

fraud.

domestic-relations

U.S.

suggests

exception
alimony,

504

Ankenbrandt

recognized

in

a
to

that
the
had

federal

equity.

See
also
Nat'l
Ass'n
of Home Builders
v. Defenders
of
W i l d l i f e , 551 U.S.
644, 662
(2007) ( r e p e a l s by
implication
disfavored);
Chem.
Mfrs.
Ass'n
v.
Natural
Res.
Def.
Council,
Inc.,
470
U.S.
116,
128
(1985)
("absent
an
expression of l e g i s l a t i v e w i l l ,
we a r e r e l u c t a n t t o
infer
a n i n t e n t t o amend t h e A c t s o a s t o i g n o r e t h e t h r u s t o f a n
important decision").
2

15

Under

the

limitations
require
state

on

marriage

forum

insofar

as

state
Haywood

v.

The

under

345,

the

d i d not

Pharm.,

suit

could

recognized
(1921),

of

logic."

have

478

U.S.

bring

these

of
735

i n New

does

sometimes

807.

As

a l l relief,

federal

claims

in

jurisdiction.

currently

York

Until

general

(2009).

a l l

claim

to

denying

deny

concurrent

practicing

jurisdiction

not

make

Trust

Co.

"a

page

1875,

the

federal-question
at

have

Importantly,

federal-question

federal

challenges

which

not

that

jurisdiction

their

courts,

virtually

appears

courts'

would

729,

i t

begin

doctrine

that

349

to

issues.

556 U.S.
that

volume

federal

state

this

f o r any

Holmes

U.S.

courts

for

assume

Justice

in
these

Drown,

available

worth

laws

fact

lawyers

lower

plaintiffs

court

analysis,

plaintiffs

over

federal

Dow

the

same-sex

jurisdiction

256

foregoing

of

i t so.
v.

As

Eisner,

history i s

lower

jurisdiction.

that

is

historical

federal
Merrell
example

Indeed,
until
1980,
federal-question
jurisdiction
i t s e l f h a d an a m o u n t - i n - c o n t r o v e r s y r e q u i r e m e n t t h a t
likely
would
have
precluded
suits
over
marriage
rights
under
1 3 3 1 . See
Califano
v. Sanders,
430 U.S.
9 9 , 105
(1977)
(citing
Pub.
L.
No.
94-574,
90
Stat.
2721
(1976))
( e l i m i n a t i n g amount-in-controversy minima f o r s u i t s
against
f e d e r a l a g e n c i e s a n d o f f i c e r s ) ; P u b . L. No. 9 6 - 4 8 6 , 2 ( a ) ,
94 S t a t . 2 3 6 9 ( 1 9 8 0 ) (same f o r o t h e r
suits).

16

shows,

unexamined

define

the

assumptions

bounds

jurisdiction.

As

of

the

creatures

have

only

need

not extend t o the f u l l

of

cannot

of

the jurisdiction

a n d do

lower

the

Congress

limits

accurately

federal

statute,

that

not

lower

gave

- whatever

courts'
courts

them,

which

t h e y may b e -

t h e j u d i c i a l power under A r t i c l e I I I .
By

right

way

of background,

of action

conflicting
U.S.C.

First,
what

now

Perez

v.

are

42

adopted

jurisdiction
indicated,
1948,

28

Fourco
Builders,

1331.

Glass,

Id.

to "suits

5 5 1 U.S.

U.S.

to

Stat.

Stat.

470,

at

the

to "civil

227;

a t 6 6 2 ; Chem.

17

lower
Nat'l

Mfrs.

provided
Id.

provided
however,

I I I by e x t e n d i n g

at law or i n equity."

on

42

(1971).

1343.

statutes,

of Article

sovereign

13,

U.S.C.

In both

paths,

106-07

1343, d i d n o t expand

conferred
353

82,

28

of the phrase

1331,

jurisdiction

and

A c t o f 1 8 7 5 , 18

the revision
U.S.C.

1983

the phrasing

only

U.S.

statutory

law against

exception

A c t o f 1 8 7 1 , 17

U.S.C.

now i s 28 U.S.C.

401

two a l t e r n a t e

Young

Ledesma,

Rights

without

to enforce federal

a n d t h e Ex parte

the Judiciary

Congress

the

seeks

law can consider

the C i v i l

Second,
what

state

1983

immunity.

who

a plaintiff

As

actions" i n
t h e scope

federal
Ass'n

Ass'n,

Id.

of

courts.
of

Home

470 U.S.

at

128.

At

the

seriously

very

undermines

Finally,
to

expand

one

1331

might

ignore

same-sex

and

establishes

the

states

Ports

amend.

from
court,

i n the

only
to

to

take

lower

federal

ensure

that

lower-federal
lack

also

court

with

to

(at

Baker

with

least)

to

the

state-federal
455,

458-59

their
Comm'n

743,

retained
v.

South

751-52

precludes

marriage-rights

basis

(2002);
same-sex

suits

has

precluded

for

this

exclusive

Probate
that

impose.
v.

justice

courts

dual

nothing

ample

judgments
to

that

in
such

courts.

retain

Alabama's

jurisdiction

consistent

is

jurisdiction

U.S.

U.S.

their

Congress

but

535

Congress

Constitution

Maritime

Certainly

and

of

The

493

entered

Fed'l

there

of

Levitt,

initiating

Accordingly,

claims.

Auth.,

X.

failure

perceived

structure

intact."

CONST.

couples

federal

v.

State

the

civil-rights

of

exception

jurisdiction.

a mere o v e r s i g h t

interest

Tafflin

"sovereignty

suits

the

and

been

federal

which

Carolina

assume t h a t

1343 h a s

sovereignty,

state

cannot

in

domestic-relations

Judge Granade's

couples'

(1990),

the

federal-question

under

U.S.

least,

Nelson,

18

jurisdiction

Judges
the
Those
409

Court

do

lower

not

federal

actions
U.S.

submit

810

not
here
to

courts

would
(1972),

be
the

U.S.

Supreme

which

Court's

found

that

prior

not

review

to

of

present

same-sex

marriage,

substantial

federal

question.

3.

Even
to

The Lower F e d e r a l Courts' A u t h o r i t y over

Marriage Rights May Be More Narrow than the
Supreme Court's A u t h o r i t y under A r t i c l e I I I

i f t h e U.S.

include

would

federal

not

question

answer

of

from

not

a state

state

Amendment.

241
at

over

the

statutory

the

U.S.

Article

interprets
marriage

rights,

question.

Supreme

an

the

would

have

appeal

f o r a writ

of

Compare,

Wheat.)

court

7 3 8 , 819

807. Moreover,

Supreme
on

III's

e.g.,

US 2 5 7 , 2 5 9 - 6 0

from

certiorari

judgment.

t h e U.S.

Article

that

Indeed,

Court

I I I t o hear

a petition

Article I I I

domestic-relations exception's application

scope.

authority

await

court

foreclose

from

(9

under

c o u r t must

The

Court

whether

jurisdiction
state

Supreme

the
scope

Osborn
(1824)

(1916);
other

Court's
scope

hearing
of

i s more

v.

Bank

with

Am.

cf. Merrell

of

the

Well
Dow

the law-equity categories,

rights

case

does n o t .

19

even

appeal

1331's

U.S.,

Works

22

v.

Pharm.,

i f a pure

may

Fourteenth

than

m a r r i a g e - r e l a t e d cases

within

an

the

broad

here

U.S.
Layne,

478 U.S.

would

fall

marriage-

For
arose

from

court,
78

example,

a criminal

Loving

v.

(Va. 1966),

reached

( Windsor),

Windsor

d i d not
another

vis-a-vis
States.
or

Windsor,
Court

action

from

cases,

from

the suit

the right

respondent

soon -

will

question

was

(1967),

a state

supreme

the

federal

S.E.2d

laws

i n equity

( Loving)

Loving

and

t h e U.S.

districtU.S.C.

that

that

(2013),

28

t o marry,

Virginia

reach

that

under

and t h e p e t i t i o n e r
seek

U.S.

133 S . C t . 2 6 7 5

brought

Accordingly, i t i s likely

even

merits

appealed

jurisdiction's

the

388

2 0 6 V a . 9 2 4 , 9 2 5 , 147

v.

Supreme

In both

law

under

Virginia,

action

a n d U.S.

tax-refund

1346(a)(1).

v.

Commonwealth,

t h e U.S.

court

or

Loving

and

plaintiff

having

married

implicated

rights

defendant

United

case

Supreme

Searcy-Strawser

eventually
Court

on t h e

plaintiffs

ask

Judge Granade t o d e c i d e .
Another
upon

group

of

U.S.

Supreme

domestic-relations issues

court

systems

under

for

or against -

III

jurisdiction

Palmore

v.

"judgment

Sidoti,
of a

28

U.S.C.

Court

on d i r e c t
1257,

decisions
review

with

no

from

the

466 U.S.

state

court

Constitution.
4 2 9 , 430

divesting

20

(1984),
a

state

discussion

domestic-relations exception to
under

touch

For

Article
example,

reviewed

natural

mother

the
of

the

custody

to

a person

Gerald

of a

D.,

Appeal);

491

Troxel

Court

of

S.Ct.

2552

of

of her infant
different
U.S.
v.

(2013)

decisions,

discuss

jurisdiction,

proves

also

Michael

(California
57

(2000)

Couple

v.

Baby

Adoptive
Court

t h e U.S.

of her remarriage

5 3 0 U.S.

o f South

Supreme

domestic-relations
which

See

(1989)

Granville,

(Supreme

because

race."

110

Washington);

these

child

of

(Supreme
Girl,

simply

on

v.

Court

Carolina).

Court

limit

H.

133

Ina l l
d i dnot

Article

I I I

nothing.

The
short
of the matter
i s that the
jurisdictional
c h a r a c t e r o f t h e elements
of
t h e c a u s e o f a c t i o n i n [Gwaltney
of
Smithfield,
Ltd.
v.
Chesapeake
Bay
Found.,
Inc., 484 U.S. 49 ( 1 9 8 7 ) ] made n o
substantive
difference
had
been
a s s u m e d b y t h e p a r t i e s , a n d was a s s u m e d
w i t h o u t d i s c u s s i o n b y t h e C o u r t . We h a v e
often
said that
drive-by
jurisdictional
rulings
of
this
sort
_
have
no
precedential effect.
Steel

Co.

(1998).

v.

As

Citizens
such,

for

these

domestic-relations

a Better

merits

Env't,

5 2 3 U.S.

decisions

exception to Article

do

III

not

8 3 , 91
rebut

jurisdiction.

C.

F e d e r a l Judgments Are Open t o C o l l a t e r a l A t t a c k

f o r V i o l a t i n g Alabama's Immunity from S u i t i n
F e d e r a l Court, as Well as f o r Exceeding F e d e r a l
Authority

The

Probate

limits

on

their

Judges
lawful

cannot
authority

21

avoid
merely

state

law

because

and i t s
federal

judge

orders

final

judgment

Judge

Granade's

Probate
the

t h e m t o do s o . E v e n

Judges

federal

laws.

As

cannot

matter

merely

of

applies

Alabama's

sovereignty.

federal

proceeding
Bailey,

jurisdiction

judgment.

The

areas.

the

resisting

Bailey

As

exception

rule

relevant
to

the

action

22

against

U.S.

in a

judgment.
to

on

by

of

Under

i s not

the

in

first

attacking

but also

immunity

collateral

later

jurisdiction

clear exceptions
sovereign

137,

challenge

generally

collaterally

here,
bar

King

suit

enforcement

has not o n l y

Judge

l a w by

attack

judgment's

on

that

Alabama

opportunity

the

law,

557

court's

federal

marriage

of j u r i s d i c t i o n

to collateral

the f i r s t

to

Bailey,

assertions

had

i n the f i r s t

action

v.

the

challenging

federal

friendly

the federal

who

jurisdiction

unsettled
outright

enforce

to challenge

second

court's

many

and

circumvent
a

reflects

Alabama's

emphatically

to

that the

marriage,

without

over

Co.

a r e n o t open

party

same-sex

state

of

Indem.

(2009),

to
a

entitled

protection

Travelers

court

on

acquiesce

more

attempt

the

& n.6

both

even

invoking

152-53

views

arguendo

litigation

jurisdiction

h i s transparent

Under

Searcy-Strawser

current

court's

proscription
and

i n the

assuming

i s an

challenges,

id.,

and

several p o t e n t i a l exceptions

remain

undecided:

(1) The s u b j e c t m a t t e r o f t h e a c t i o n
was
so
plainly
beyond
the
court's
jurisdiction
that
i t s entertaining
the
a c t i o n was a m a n i f e s t a b u s e o f a u t h o r i t y ;
or
(2)
Allowing
the
judgment
to
stand
would
substantially
infringe
the
a u t h o r i t y of another t r i b u n a l
or
agency
of government; or
(3)
The
judgment
was
r e n d e r e d by a c o u r t l a c k i n g c a p a b i l i t y t o
make an a d e q u a t e l y
informed
determination
of
a
question
concerning
its
own
jurisdiction
and
as
a
matter
of
procedural f a i r n e s s the p a r t y seeking
to
avoid
the
judgment
should
have
opportunity
belatedly
to
attack
the
court's subject matter j u r i s d i c t i o n .
Id.

(citing

Restatement

quotations
cases

violate

cannot
each

omitted).

bind

of

(Second)

As

Alabama's

Alabama.

In

apply

here,

particularly

court

decide

"would
this

has

Court

U.S.

so

exclusive

substantially

Legislature
the

issue

but

also

or

in deciding
Supreme

the

the
how

Court

an

to

go

invents

marriage.

23

issue

over

i n the

right

to

which
plainly

not

Alabama

forward
a

federal

authority

of

submit
could

the

a u t h o r i t y " of

People

therefore

i n Bailey

Having

near-exclusive

infringe
of

quoted

to

and

respectfully

second.

central

interior
Searcy-Strawser

immunity

exceptions
the

12,

the

a d d i t i o n , Amici

Restatement's

Alabama

indicated,
sovereign

the

an

Judgments

only

and
event

of

their
that

same-sex

Quite
her

simply,

terms,

States

i f Alabama

neither

can

cannot

federal

compel Alabama t o

regulate

court

nor

even

regulate marriage

Mathews,

465

original,

interior

quotations

therefore,

redress

violations

by

do

v.

not

not)

exit

argue

that

foreclose
judgment
within

the

collateral

that

the

traditional

Judge

exiting

argue

U.S.

740

the

i f the

husband-wife

field

government
U.S.

Alabama's

legitimate

"substantially
Restatement's

meaning

Court

alone.

as

Amici
should

invalidates
merely

venturing
the

[Alabama's]
and,

(or

Amici
By

choices,

infringe

could,

altogether.

Rather,

d e c i s i o n i s Alabama's

in

constitutional

should

Supreme

marriage.

(emphasis

Alabama

perceived

marriage

United

equal
is a
that
of
well
the

(1984)

omitted).

Granade's

Alabama's

field

the

728,

the

on

at a l l :

when t h e r i g h t i n v o k e d
i s that to
treatment,
the
appropriate
remedy
mandate
of equal treatment,
a result
can
be
accomplished
by
withdrawal
b e n e f i t s f r o m t h e f a v o r e d c l a s s as
as
by
extension
of
benefits
to
excluded
class.
Heckler

marriage

such,

to

federal
authority"

is

open

to

challenge.

Finally,

Judge

Court

by

invoking

raise

questions

King's
the

about

actions

jurisdiction
his

conduct,

24

to
of

seek
the

separate

to

evade

federal
and

apart

this
court
from

the

merits

course,

Judge

sovereign
County
poses

King

Comm'n,
a

393,

396

q u e s t i o n of

not

Angeles,

331

interior

quotations

that,

means

legislature

of

could

549,

Co.

respectfully
"prejudicial
meaning

of

v.

to

"It

friendly

suit,

Rule

of

Wellman,

the

568-69

omitted).

transfer

submit

Municipal

that

to

the

the
143

339,

Judge

and

does

25

federal

courts

of
not

of

City

of

(citations
was

an

the

and

thought

beaten

in

inquiry

act."

344-45

King's

issues

non-adversary

party

courts

administration

8.4(d)

waive

federal

(1947)

legislative
U.S.

to

the

Court

never

U.S.

office.

friendly,

v.

419

"constitutional

in

Army

constitutionality
Ry.

U.S.

King's

decide

Iowa,

such,

which

authority

defendants

jurisdictional,

not

Rescue

court's
v.

l a w ) . As

over Judge

legislation

proceedings[.]"

state

state

strictly

should

of

Montgomery

( A l a . 2008),

Sosna

Of

Alabama's

v.

federal

cf.

(ability

jurisdiction

i f

affecting

G.T.

Id.;

Judges.

waive

Corr.

191-92

to the

office.

Probate
to

of

189,

bar

is a

prudentially

the

3d

(1975)

lacks

by

Dep't

n.2

Even

Los

So.

other

authority

Ala.

11

King's

the

lacks

jurisdictional

Judge

immunity

vis-a-vis

immunity,

over

court

here

as

Chicago

(1892).

within

constitute

to
&
Amici

circumvention

justice"

the

is
the

"good

faith

effort

application

III.

t o determine

the validity,

of the law"within

scope,

t h e meaning

meaning

o f Rule

or

1.2(d).

IN ADDITION TO ALABAMA'S RELIEF REQUESTED, THIS COURT

SHOULD RETAIN EXCLUSIVE JURISDICTION TO ENSURE
COMPLIANCE WITH ALABAMA LAW
When

court

jurisdiction
Bradley,
Nelson

t o ensure

Vasquez

v.

Harris,

Legislature

full

So.

Kimberly-Clark

2000).

Here,

exclusive,

2d

submit

that

over t h e lower Alabama

First

86

retain

Bank

v.

court

( A l a . 1957);

So.

jurisdiction.
this

Court's

has

jurisdiction.

2d

this

accord

where t h e

jurisdiction

to retain

779

Inc., 2 6 7

(1992) . O n l y

retaining

courts

Nat'l

of Birmingham,

1000

precludes

continuing

respectfully

78,

Corp.,

nothing

i t can

134 S o . 6 2 1 , 622 ( A l a . 1 9 3 1 ) ;

5 0 3 U.S.

to allow

relief,

remedy.

Shop

has p r e c l u d e d

refused

parte

Co. v. Darling

3 0 1 , 3 1 1 , 101

Court

equitable

223 A l a . 22, 22-23,

Realty

Ala.

grants

178,

182

Court's

this
Ex
(Ala.

retaining

Indeed,

supervisory

Amici
authority

compelsi t .

CONCLUSION
This
by

Court

Alabama

over

the

litigation

should issue

and r e t a i n
case

pending

related

the writ

exclusive,
the

continuing

resolution

t o the lawfulness

26

o f mandamus r e q u e s t e d

of

jurisdiction
a l l pending

o f Alabama's

marriage

laws.
Dated:

F e b r u a r y 17, 2015

Respectfully

submitted,

/s/ L. Dean Johnson

L. D e a n J o h n s o n ( J O H 0 4 6 )
L. D e a n J o h n s o n ,
PC
4 0 3 0 B a l m o r a l D r . SW
H u n t s v i l l e , AL 35801
T e l : (256) 880-58177
Fax:
(256) 880-5187
Email:
dean@ldjpc.com
Counsel
for Amici
Curiae
Eagle
Forum
of Alabama
Education
Foundation
and Eagle
Forum
Education
& Legal
Defense
Fund

27

CERTIFICATE OF
I
I

hereby

certify

electronically

with
Court
send

filed

t h e accompanying
o f Alabama
notification

that

SERVICE

on t h e 1 7 t h d a y o f F e b r u a r y 2 0 1 5 ,

the foregoing brief,

motion,

using

with

t h e ACIS

of such

the Clerk
filing

filing

i n conjunction
o f t h e Supreme

system,

which

will

to the following:
H o n . R o b e r t M. M a r t i n
Judge of Probate
C h i l t o n County
500 2 n d A v e n u e N o r t h
C l a n t o n , AL 35045
probate@chiltoncounty.org

M a t h e w D. S t a v e r
H o r a t i o G. M i h e t
R o g e r K. G a n n a m
L i b e r t y Counsel
P.O. BOX 54 077 4
O r l a n d o , FL 32854-0774
court@LC.org

H o n . Tommy R a g l a n d
Judge of Probate
Madison
County
100 N o r t h S i d e S q u a r e ,
Room 1 0 1
H u n t s v i l l e , AL 35801
phanson@co.madison.al.us

A. E r i c J o h n s t o n
S u i t e 107
1200 C o r p o r a t e D r i v e
B i r m i n g h a m , AL 35242
eric@aericjohnston.com
Samuel J . McLure
The A d o p t i o n Law F i r m
PO B o x 2 3 9 6
Montgomery, AL 36102
sam@theadoptionfirm.com

H o n . S t e v e n L. R e e d
Judge of Probate
Montgomery County
Montgomery C t y Courthouse
Annex I , T h i r d F l o o r
100 S o u t h L a w r e n c e S t r e e t
M o n t g o m e r y , AL 36104
probate@mc-ala.org

Luther Strange
Alabama A t t o r n e y G e n e r a l
501 W a s h i n g t o n A v e n u e
Montgomery, AL 36130-0152
smclure@ago.state.al.us

J . R i c h a r d Cohen
David
Dinielli
S o u t h e r n P o v e r t y Law C e n t e r
400 W a s h i n g t o n A v e n u e
M o n t g o m e r y , AL 36104
richard.cohen@splcenter.org
david.dinielli@splcenter.or

R a n d a l l C. M a r s h a l l
ACLU o f A l a . Found.
P.O. B o x 6 1 7 9
Montgomery, AL 36106
rmarshall@aclualabama.org

28

S h a n n o n P. M i n t e r
C h r i s t o p h e r F. S t o l l
Nat'l C t r f o r Lesbian
Rights
870 M a r k e t S t . , S t e . 370
S a n F r a n c i s c o , CA 9 4 1 0 2
SMinter@nclrights.org
CStoll@nclrights.org

Ayesha Khan
Am. U n i t e d f o r S e p a r a t i o n
of Church & State
1301 K S t r e e t ,
N.W.
W a s h i n g t o n , D.C. 2 0 0 0 5
khan@au.org

H o n . A l a n L. K i n g
Judge of Probate
J e f f e r s o n County
716 N. R i c h a r d A r r i n g t o n J r . B l v d .
B i r m i n g h a m , AL 35203
kinga@jccal.org
February

17, 2015

Respectfully

submitted,

/s/ L. Dean Johnson

L. D e a n J o h n s o n ( J O H 0 4 6 )
L. D e a n J o h n s o n , PC
4 0 3 0 B a l m o r a l D r . SW
H u n t s v i l l e , AL 35801
T e l : (256) 880-58177
F a x : (256) 880-5187
E m a i l : dean@ldjpc.com
Counsel
for Amlcl
Curiae
Eagle
Forum
of A^labama
Education
Foundation
and Eagle
Forum
Education
& Legal
Defense
Fund

29

EXHIBIT TO BRIEF FOR A^ICI CURIAE EAGLE FORUM OF

ALABAMA EDUCATION FOUNDATION AND EAGLE FORUM
EDUCATION & LEGAL DEFENSE FUND IN SUPPORT OF
PETITIONER
Baker

v. Nelson,
No. 7 1 - 1 0 2 7
J u r i s d i c t i o n a l Statement

(U.S.),
( O c t . Term 1972)

A1

F I F. "

11

V I -

-3

i-iLE

1 0 2

COPY

,N T H E

OcjTofiEa Tuiiw, 1072

Opinions Below

Juriadiotion

E J C U A E D J O H N BAKIJH, et

WOE
JtmiSDicxiONAL STAI-BMBT

Supreme (Erntrl nf tl)i Hmteh ^tdXsa

No

INDEX

,.

Statutes Involved

.,,

Questions Presejited

al.,

A'p'pellants,

Statement of tlie Case

.,

V.
{JERALD l i .

.How tiie Federal Questions Were Raised ....

The Questions Are Substantial

Niii.sos,

OS APPBAI- SBOM THB SUPRBMB COUtt'l" OF MINHESOTA

JURISDICTIONAL S T A T E M E N T

I. Bespondent's refusal to sanctify appellants'

marriage deprives api>eUantB of liberty and
property in violation of the due process and
equal protection clauses
,
11, Appellee's

refusal

to legitimate

11

appellants'

marriage constitutes an unwarranted invasion

of the privacy in violation of tlie Ninth and
11. MlOWAEI, WlSTaEBBEiii
Minnosotu VAvil Liberties Union
232fi Ji/ust Hennepin Avenue
Mintieapolia, Minnesota 55413
L Y N N S , C'ASTKKU

162.") Park Avenue

Mintieapolia, Minnesota 55404
Aitoifi-i'jjs for Appellants

Fourteenth Amendments
CONCLUSION

18
19

APPENDIX

Statutes Involved
Chapter 517, Minnesota Statutes
Alternative Writ of Mandamus

la
10a

iii

ii

rum
Order Quashing tlie Writ

Constitutional Provisions:
United Stales Constitution

Amended Order, Findings and Conuhisions

14*

Opinion of the Minnesota Supreme Court, Hennepin County

,
la*

First Amendnient

5,(>

Eighth Amendment

5,6

Ninth Amendment
TABLK OF A U T K O W T I E S

Fourteenth Amendment

Cases:
Bates V, City of Little Koek, m
U . S . 6IG (1960)
II
Boddie v, Connectieiit, 401 U.S. 371 (ia7l)
11,12,13,19
Cohen v. California, 403 U.S., 15 (l'J71)

14

3,5,6,18,19
3, 5,6,11,13, t7,18,19

Rule:
Minn. Jl. Civ. P. 52.01

Federal Statutei
28 U.S.C. -^1257(2)

Oriswoldv. Connecticut, 381 U.S. 479 (1965)

14,18,19
Jones V. Hullihan, W-152..70 (Ct. Apps, Ky. 1971)
Loving V, Virginia, ;J88 IJ.S, L (1007)

11,12,13,

10

11,12,13,14.
15,16, Itt, 19

McLaughlin v. Florida, 37!) U.S. 184 (1%4) ,

13, IG, IS
Meyer v. Nebraska, 2(i2 U.S. 5:^5 (.1923)
11,12,13
Mindel v. United' States Civil' Service Conunission,
312 F . Supp. 485 (N.D. Cab 1970)
18

dlaie Statute:
Minnesota Statutes
Chapter 517

,.,

2,4,r>,i3

Other Autlwritias:
Abrahamsen, Criirse and the Human Mind 1.17 (1944)

Churchill, nomosexual
(1969)

Bcliavior Among Mahw 19

FinaJ Eeport of the Task Force on Iloniosexuality of

the National Institute of Mental Health, October 10,

Eeed V. Reed, 92, S, C t 251,30 L . ed.2d 225 (1971)

13,16,

Royster Guano Co. v. Virginia,'253 U.S. 412 (1920)

1
Sliapiro v. Thompstjn, 394 U.S. filS (1909)

17,18
17
16

SheJton v. Tucker, 3()4 U.S. 479 (19fiO)

14

Skinner v. Okiahoum, ^tfi U.S. 533, {.1542)

11,12,13

Street v. New York, 394 U.S. 57(5 (19G9)

14

1969 .-..,,

Finger, Sex Beliefs and Practices Among Male CoUer/e

Students, 42 J . ABNOHMAL A F D SOCIAL Psvca,

(1947)

57

,.

Freud, 107 Aia. J . of Psychiatry 786 (1951) (reprinte.J)

7
10

iv
IN T H E

Hart, Law, Liberty and Morality 50 (19C3)

James, The Varieties of Keligious lOxperteuce, lectures

X I , X I I , XIIT (1902)

KJNSBY, SEXUAI- BEHAVIOR IN T H B H U M A N M A L E (1948)

OCTOBER T S R M ,

1972

No

Westermarck, 2 Origin and Development of the Moral

Idea 484 (1926)

RiCKAjiii J O H N B A K E E , et

al.,

Appellants,

GBBALD R. NELSON,

Appellee.

OH AH'KAL FEOM THE SUPREME COURT OF MINNESOTA

JUKISDICTIONAL S T A T E M E N T
Appellants appeal from the judgment of the Supreme
Court of Minnesota, entered on October 15, 1971, and submit this Statement to show that the Supreme Court of the
United States has jurisdiction of the ajJiieal and that a substantial (juestion is presented.

Opintoiia Below
The opinion of the Supreme Court of Minnesota is reported at 191 N.W.2d

185,

The opinion of the District

Court for Hennepin County is unreported. Copies of the

opinions are set out in the Appen<lix, infra, pp. 10a-17a and
18a-23a.

2
Jurisdiction
Tills suit originated through an alternativo writ of raanlamus to compel appellee to issue the marriage licenae to
ippellaiits. The writ uf inandaitnis was quashed by th
Hennepin County District Court on January 8, 1"J71. On
ippeal, the judgment of the Supreme Court of Minnesota
iflinaing the action of the District Court was entered on
Jctober 15, 1971. Notice of Appeal to the Supreme Court
if the United States was lUud m the Supreme Court of
ilinnesota on January 10, 1972. TJie time in -wliicli to file
his Jurisdictional Slatcineiit was extended on January 12,
972, by order of Justice Blackmun.

>

TJie jurisdiction of the Supreme Court to review thi

Iceision on appeal is conl'<srred by Title 28 U.S.C, Sccion 1257(2).
Statutes Involved
Appellants have nevei been advised by appellee which
tatute precludes the issuance of 'the marriage licenae to
hem, and the Supremij Court of Minnesota cites only Chaper 017, Minnesota Statutes, m its opinion. Accordingly,
he whole of Chajlter 517 is reproduced in App., infra, p]).
a-9a.

QuestioMS Preeuted
1. Whether appellee's refvisal to sanctify appellants'
marriage deprives appellants of their liberty to marry
and of tlieir pro^mrty without due process of law under the Fourteenth Amendment.
2. Whether appellee's refusal, pursuant to Minnesota
marriage statutes, to sanctify appellants' marriage
because both are of the male sex violates tiieir rights
under tlie aqua] protection clause of the Fourteenth
Amendment.
3. Whether appellee's refusal to sanctify appellants'
marriage deprives appellants of their riglit to privacy under the Ninth and Fourteenth Amendments.
Statement of the Case'
Appellants Baker and McConnell, two persons of the
male sex, applied for a marriage licenae on May 18, i970
(T, 9; A . 2, 4) at tjia office of the appellee Clerk of District Conrt of Hennepin County' (T. 10).
' T. refers to the trial traiiiieruif A. refers to the Apjicndis to
appelJanta' brief bp.fore tlse Miuiiesotu Supreme Court.
'Appellant McConncU is also jietitioner before this Court ia
McConmll v. Andtmon, petit, for oert. flld, No, 71-S7H In whitih
be Seeks review of the decision of tJie United Stateg Court of Ajipeftls
/or the Biirhth Circuit, allowing: the Board of Ilegenta of the University of Minnesota to refuse him employmait as head of the
catalogue division of the St. I'liu! Campus Library on the grounds
that "Ills perscital eonduoi;, an repre*rei>t,cij n> Die pnblio ar.d Univer.sity news media, is not consistent with the beat interest of the
University "
The efforts of oppellaiits to Ret married evidently pereipitated
the Begenta' decision not Ifl employ Mr, MtConnell.

5
Upon advice of Uic oflice of tlie Hennepin County At.
torney, appellee aceejjted aj>pellaiits' application and thereupon requested a fonnai opinion of the County Attorney
(A. 7-8) to deterinmo whether the marriage license shoold
be issued. In a letter dated May 22,1970, appellee Nelson
notified appellant Baker he was "unable to issae tlie mwriage license" because "sullicient legal impediment lia
thereto prohibiting!; the nsarriage of two male personn"
(A, 1; T. 11). However, neither'appellant has ever bwn
informed that he is Individually incompetent to marry,
and no specific reason has ever been given for not issuing
the license.
Minnesota Statutes, section 517.08 states that onlj/ the
following information will be elicited concerning a marriage license: name, residence, date and place of birth,
race, termination of previous marriage, signature of applicant and date sijjned. Although they were asked orally
at the time of application which was to be the bride and
which was to be the groom (Tv J!>; T. 18), the forma for
application for a manlnjDce lieenseVlid not inquire as to the
aex of the applicants.' However, appellants readily concede
that both ate of the male sex.
Subsequent to the denial of a license, appellants consulted
with legal counsel. On Uecember 10, 1970, appellants applied to the District Coui^t of iHennepin County for an
alternative writ of inand&Tnus (A. 2 ) , and such a writ WM
timely served uppn appellee. Appellee Nelson continud
to refuse to issue the appellants 'a marriage license. Instead, he elected to appear iri. court, show cause why he
had not done as commanded, and make his return to the
writ (A. 4),

The matter was tried on January 8, 1971, in District

Court, City of Minneapolis, Judge O'oni Bergin piesiding
(T, 1). Appellants Baker uiid McConnell testiiled on their
own behalf (T. i); T, Ui) as tlie sole witnesses. After elosuag arguments, he quashed tlie writ of mandamus and
ordered the Clerk of District (Jourt "not to issue a marriage license to tlie individuals involved" (T. 19). A n order was signed to that effect the same day (App. ivf}<i,
p. 12a).
Subsequent to the trial, counsel for appellants moved
the court to find the facts specially and state separately
its conclusions of law pursuant to Minn. R. Civ. V. 52.01.
Judge Bevgin then made certainfindin(!;sof fact and conclusions of law (App. infra, p. 14a) in an amended order dated January 29,1971. Huch findings and conclusions
were incorporated into and made part of the order signed
January 8, 1971. The Court found that the refusal of appellee to issue the marriage license was not a violation of
M.S. Chaptr 517, and that such refusal was not a violation of the First, Eighth, Ninth or Fourteenth Amendments to the U . S. Constitution.
A timely appeal was made to the Supreme Court of
Minnesota- In an ojiinion filed October 15, 1971, the Supreme Court uf Minnesota, aflinned the action (sf the lower
court.'
In early Au^ist, 1971, Judge Lindsay Arthur o( Hennepin
County Juvenile Court issued an order granting the legal adoption
of Mr Bttker liy Mr McConnell The adoption permitted Mr.
Baker to (ihanK* 'uis iiaine tioui Iliunard John Buker to Pat Lynn
MflCouiiell. Dn August 16, Mr Mihiiel Mttlonnell alouc apphed
for a mnrriaffe licenae in MiiidtHto, Blue I'lmtli Ouunty, Mttioesota
for himaelfaiid Mr Hiilier, wlio used the iianje I'at Lynn McConnoII.
Under Mi!iHota [HW, nnly one party need apply for H rnftrrinpie
license. Suice the luarriafe license application does not inijuire as

7
How

the FeIeral Questions Were Raised

Appellants contundeti tlujt if Minnesota fjtatutes, Chaptei' 5i7, were eonstrned so as to not allow two persons of
the same sex to inai'ry, tlsen the Statutes were in violation
of the First, Fjighth, Nintli, and Fourteentli AniendmenU
to the United States Constitution in tlieir Alternative Writ
of Mandamus (App. t./fct, pp. lOu-lia), at the heannK
before the Hennepui Corinty Uistrict Court on January 8,
3971 (App. infra, p. !2a), and to the Supreme Court of
Minnesota (App.-infj-a, p. t8u)- These constilutioua! claiiiu
were expressly considered and rejected by both court*
below.

neither the question nor the proposed rektionship is bilarre. Indeed, that first impulse provides us with some
measure of the continuing impact on our society of prejudice against non-heterosexuals. And, as illununatod witliin
the context of tlus casu, tlus prejudicu has stjvere conse-

quences.
The relationships contemplated is neither grotesque nor
uncommon. In fact, it lias been established that homoaexuality is widespread in our society (as weli as all other
societies), lleliablc studies have indicated that a signlficant percentage of the total adult population of the United
States have engaged in overt homosexual practices. Numerous single sex marital relationships exist de facto. See,
e.g., A . KiJisiOY, SEXUAIJ BEHAVSOR IN T H E H U M A N

The

Queetioiie Are Substantial

The pieoiac question ia whether two individuals, solely

because they are of the same sex,-may be refused formal
legal sanetifioatioii or. ratification of tiieir marital rela.
tionship.
At first, the question and the ^iirtiposcd relationship may
well appear bi/.arreospscially to heterosexuals. But

MALU

(1948) [ Finger, Seip Beliefs and Practices Among Male

College Students, 42 J , ABNOUMAL ANU SUUIAL PSYOU, 57

(L947), The refusal to sanction such reiationslups is a

denial of reality. Further, this refusal denies to many
people important property and personal interests.
This Jurisdictional Statement undertakes to outline the
substantial reasons why persons of the same sex. would
want to be married in the sight of the law. Substantial
property rights, and other interests, frequently turn on

to sex, the liisexual name of P)it Lynn MiiOoiiiiell doubtless kepi

the clerk from making any iui)iiiry about the sexes of tlie partiw.
Shortly atter the lieeHse issued, Mr. Mcf.oimeira adoption of Mr.
Hiiker was made puhlic .by .lud^'e Arllmtcotvlrary to Miiinesot*
!uw. 'file County Attorufy for liiue liJarth tJouiity then diacovertd
that a marriage liueiise had i-ssued to tlte apiiellaiits, attd on A-ugviirt
31, iifi "declared the iics void,on tjtatuto.-y grouiids." Nevertheless, on September 3, Ituf appellants' ware married in a private
<;reiiiony in South Minneapolis, Aliout a week later tlie UfienM
WH.s sent (n the Blue ISarth t'ounty .OJdVk of Di-Htricl Court, It it
mit known whether he filtfd it, hiil isiirlfir the MinnesotH atatule
filitii; is not reijaired, Kurllier, filiiiu doe.^ not affeiit validity.

legal recognition of the marital relationship.

Miireover,

both the personal and public symbolic impoi:tance of legal

ratiiication of same sex majTiages cannot be underestimated. On the personal side, how better may two people
pledge love and devotion to one another than by marriage.
On the public side, prejudice against homosexuals, wiiich
tends to be phobic, is unlikely lo be cured until the public
acknowledges

that homosexuals, like all people, are en-

titled to the full jiroteetion and recognition of the law.

8
9
Only then will the iuihlic jjeieeive that homosexuald an
not freaks or uui'ortnnate abherations, to lie swept under
the carpet or to be reserved for anxious pliantasies aboul
one's identity or child rearing technmuos.
A vast literature reveals several fiypotheses to explain
the deep prejudice against Itomosexuals, One auiiiority
maintained that iiostility to Ui.iinosexLial conduct was orsRinally an "aspect of economics," in that it reihscted the ore.
nomic importance of large family groupings in pastoral
and agricultural societies. K. VV^estRnnarck, 2 Origin and
Development of tiie Moral Idea 484 (1926). A second
theory suggests thai homosexuality was originally forbid,
don by the "early Hebrews" as part of efforts to "surround
the appetitive drives with jirohibitions." W, Churchill,
Homosexual i^ehavior Among Males IS) (19fi9). Under this
theory, opposition to hiimosexuaUty Was closly related to
religious imperativesi iii paiticular the need to establish
moral superiority over p a g a n sects. Id., at 17; see also
W. James, The Varieties of ileligious Experience, lectures
XT, X I I , X I I I (1902).
Whatever the approjiriate explanation of its origins, pay.
chiatrists and sociologiBts aie more nearly agreed on the
reasons for the iiergis^tence of the hostility. It is one of
tliose "ludicrous and haiiiiful" prohibitions by wliidi virtually all sexual matters are stiH .reckoned "socially taboo,
illegal, pathological, or highly controversial." W . Churchill,
supra, at 26. It continues, as it may have begun, quite without regard to the actual characterjstics of homosexuality.
It is nourished, as are the various other sexual taboos, by
an amalgam of fear and ignorance. Id., at 20-35. It is supported by a popular cdncejition of the causes and characteristicB of homosexuality that is no'more deserving of our
reliance than the Emperor Justinian's belief that homo-

aexuality causes earthquakes, Ii. Hart, Law, Liberty and

Morality 50 (1963).
There la now responsible evidence that the public attitude toward the homosexual community is altering. Thus,
the t^nal Heport of the Task Force on Homosexuality of
the National Institute of Mental Health, October 10, 1969,
states (pp. 18-19):
"Although many people continue to regard homosexual activitieK with repugnance, there is evidence
that public attitudes are changing. Discreet homosexuality, together with many other aspects of human sexual
behavior, is being recognised more and more as the
private business of the individual rather than a subject for public regulation through statute. Many homosexuals are good citiaens, holding regular jobs and
leading productive lives."
To a certain extent the new attitudes mirror increasing
scientific recognition that homosexuals are "normal," and
that accordingly to penalize individuals for engaging in
such conduct is improper. For example, in D. Abrahamsen,
Crime and the Human Mind 11.7 (1944), it is stated;
"All people have originally bisexual tendencies which
are more or less developed and which in the course
of time normally deviate either in the direction of male
or female. This may indicate that a trace of homosexuality, no matter how weak it may be, exists in
every human being."
Sigmund Freud summed up the present overwhelming
attitude of the scientific community when lie wrote as follows in 1935;

10

"TToiirioaexnaUty is assureflSy no advantage but it i

noliiing to be asiiamed of, no vice, no dt'gindation, il
cannot be claasHied us an illness; we consider it to Iw
a variation of the sexual function produced by a c^rtain arrest of sexual devclojnnwit. Many highly rspectablc individuals of ancent and modern tunes liuv^
been homosexuals, several of the greatest men among
them (Plato, Michelangelo, i/conardo da Vinci, etc.).
ft IS a great injustice to persecute homosexuality an a
<!rime and cruelty too." KeprintMl in 307 Am J, of
P.sychiatry 780-87 (11)51).
Jn thft face of scientific knowledge and changing public
itttitudes it is plainly; as Freud said, "a great injustice"
to persecute homosexuals,
' ,
This injustice is compounded, we iiuggest, by the fafl
that there is no jusliiication in law for the discrimination
against iiomosexiials, Because of abiding prejudice, ajipftllants are being deprived of a basiiS righttlie right to
marry. As a reatdt of tiiis dju'rivaticm, they have been
denied numerous benefits awarded ty law to others similarly situatedfor example, ehildhifis heterosexual couples,
SintMj this action has been filed, others have been iiietitsited in other states.' This Court's deeision, therefore,
woidd affect the marriage laws of'virtually every Stale
in the Union,

11

I.
Respondent's refusal lo sanctify appellants' marriage
deprives appellants of liberty and property in violation
of the due process and equal protection clauses.
The right to marry is itself a fundamental interest, fully
protected by the due process and equal protection clauses
of the Fourteenth Amendment. See Boddie v. Comtecticut,
m U.S. 371 (ly?]); Lovinci v, Virginia, 38 U.S, 1 (1907);
Griswotd v. Cmimcticui, 381 U.S. 479 (1905); Skinner v.
Oklahoma, 3l(i U.S. 535 (m'2); Meyer v. Nebraska, 2fi2
U.S, 535 (1923). In addition, significant property interests,
also protected by the due process clause, flow from the
legally ratified marital relationship. In hhs testimony at
the trial, the appellant Baiter enumerated six sucli interests which he cannot enjoy because of the State's refusal to recognise his marriage to the appellant McConnell;
1. The ability to inherit from one another by intestate
succession.
2. The availability of legal redress for the wrongful
death of a partner to a marriage.
3. The ability to sue under heaitbaim statutes wiiore
ia effect.
4. Legal (and consequently community) recognition for
tlieir relationship,
5. Property benefits stich. as tlie ability to own property
by tenancy-by-the-ontirety in states where permitted.
6. Tax benefits under both Minnesota and federal stat-

' See, g,, Jones v. Iimkan, 'W-152-70. (Ot. Apps Ky. 137]).

litea, (Among others, these include death tax henefits

12

13

and income tax benefitseven muior tlsu revised FkKl-

relationship are of the same sex is precisely the kind of

eral Income Tux Code.;

atbitcary and invidiously discriminatory conduct that ia

prohibited by the P'ourleenth Amendment equal iirotectiun

Tijcre are innumerable other legal advantages that cao

and

due process dau.ses.

be gained only in tlie ntarital reiationsJiiiJ. Only a few of

can

be shown to further soiiic h^gitimate govcrruiient in-

those will be listed for illustrative purposes.

Unless the refusal to sanctify

Some stale

terest, important personal and property righls of the per-

criminal laws prohibit sexual ads between nnmarrled per-

sons wiio wi.sh to marry are arbitrarily denied without

sons.

benefits arc available only to

due process of law, and the class of persons who wish to

spouses and to survivmg spouses. This is true, for ex-

engage in single sex maniages are being subject to in-

ample, of many veterans benfliit.s,. Jtights to public housing

vidious discrimination.

frequently turn on a niarital relationship,

component, -sue Boddit v. Vonnecticat, supra; Grawold v.

Many govei'nment

Finally, when

With regard to the due jiiocess

there is a formal marital relationship, one spouse cannot

Connecticut, supra (all the majority opinions); Meyer v,

give or be forced to give cvulenee against tJie other.

Nebra.'ika, supra. With leganl to the ecpial jiroteetion eoiu-

The

individual's interests, personal and property, in a

marriage, are deemed fundamental,.' See, e.g, Boddie x

ponent of this argimiont, see S^ovintj v. Virgima, su-pra;

McLaughlin v. Florida, 3711 U.S. 184 (i9G4); Bkmw.r v.

Comieoiicut, supra; Loving v. Virginia, supra; Griswold

OklaJioma, supra; cf. Read v. Reed, 92 S. Ct. 251, 30

V, Connecticut, supra; Shmner v. Olpkihoma, supra; Meyer

L, ed.2d 225 (1971).

V. Nebraska, svpra, I'hus iti(irriu<2;e comprises a bundle

of rights and interests, which, may not be interfered with,
under the guise of protecting the public interest, by government action which is arbitrary or'invidious or without
at least a reasonable relation to some important and legitimate state purpose,

lO.g. Meyer v, [Nehrmka, supra. In

fact, because marriage is a fundamental human right, the

state must demonstrate a suhonUri.ating interest which is
miupelling, before it may interfere ,w)th or prohibit marriage, Cf. Bates v. Cili/ of Littkjiach,

361 U.S. 51fi(1<)G0).

Applying due process notions, in this case, the state has

not shown any reason, much less a compelling one, for
refiising to sanctify the marital relationship. Its action,
therefore, arbitrarily invades a fundamental right.
Separately, each appellant is competent to marry under
the qualifications specified in Minnesota Statutes Scction.s
517.08, siibd. 3, 5J 7.02-517.03. Compare Lnvrng v. Virginia,
supra. Why, then, do they liecome inconijiotent when they
seek to many eadi otjieit
The problem, according to the Minnesota Supreme Court,

In a sense, the aiiaiysis presented here involves a mixing

ajjpeara to be definitional or historieai. The institution of

jf both due process and equal protection doctrines. As

marriage "us a union of a man and a woman, uniiptely

;hcy are applied to the kind of government disability at

involving tlie procreatimi and rearing of children within

gsue in this case, howevor, tJiey tf.nd to merge. Rcfuaal

a family, is as old as the Hook of Genesis" (App,, infra,

:o sanctify a mari'iltge solely because both parties to the

pp.

20a-2ia). On its face, however, Minnesota law neither

15

14

dearly a socially acceptable foini of procreation. It already

states !ioi' implies tliis (lufijiilion. FurtlicrTnorii, the antiq-

renders procreative many marriages between persona of

uity of a restnetmn (iorlamlv has m) hcai-mg on its consti-

opposite sexes in wlucii the partnois are physically or emo-

tutionality, and does uut, without anvthing additional, (U-ni-

tionally unable to conceive their own children. Of laic,

otiHtiate that the state's mliiiest in (uK-.umburing llie matitul

even single persons have becoiuw eligible to lie udoplivo

relationship is subordinatiiiK and (:omtelllng. Conneoticut's

parents.

restriction on birth cxintrol devices had been on its statute

books for nearly a century liei'ore this Ciiurt struck it down

Apijeilauta subiiuL Uieieforc, Uiat tlie appellee cannot

on the ground that it unconstitutionally invaded tlie pri-

(leacribe a legilitnate govonimenl mterest which is su com-

vacy of the marital relationnliip. Gimvioid v, Cunnecliciil,

pelling that no less restriu-tivu means can bo found to secure

that interest, if llisrc is one, than to proscribe single sex

supra.

marriages. And, even if the test to be aiipiied to deternsine

Surely tlie Minnesota Suiircme Court cannot be suggest-

whether the Minnesota pio,scrij]liim offends due process

ing that single sex inarri.agi's may be banned because tliey

involves only (piestions of whether Minnesota has acted

are considered by a large segment of our popiilation to Ix-

arbitrarily, capriciously or unreasonably, appellants submit

socially reprehenaibie. Sucli a governmental motive would

that the appellee has failed under that test too.

be ncitlier substantial, nor aubordinatini> nor Icgitiniato,

See, e.g.. Loving v, Virginin, supra; Cohen v. California,
403 U.S. 15 (lf)71.); R'treet v. J^f.w''\'<irk, 304 U.S.
(1960).
Kvcn assuming that govortiuiont eould constitutionally
make marriageability tiirn On the marriage partners' willingness and ability to prycmate, and'to raise cbiliiren,
Minnesota's absolute ban on singlci sex marriages wosild
still be unconstitutional, "[hi jven thrtugh the governtnental
purpose be legitimate and substantial,,that purpose cannot
be pursued by means that broadly stifle fundamental per-

Minne-

sota's proscription simply has not been shown to be rationm

ally related to any governmental interest.

The

touchatoiiy of the equal protection doctrine as it

bears on this case is found in Lomng v, Viryiniii, 38S

UsS.

1 (1907). The issue bcfoie the Court m that case

was whether Virginia's auti-miscegenalion statute, prohibiting marriages between jicrsons of the Caucasian race and
any_ otlicr race was unoonstitulional.

TJie Court struck

down the statute saying:

There is patently no legitimate overriding purpose

sonal liberties when the .end.can be more narrowly achieved,

independent of Invidious laciai discrimination which

'Che breadth of legislative abridgment 'must be viewed in

justifies this classification. The fact that Virginia pro-

the light of loss drastic means fpr achieving the same basic

hibits only interracial marriages involving white per-

purpose." Shelton v. Tucke.r. 'm TJ.'S. 479, 488 (1900),

sons demonstrates tlmt the racial classifications must

Thoi'O (s nothing in the riatiire of single sex marriages that

stand on tlieir own jtistifuration as measures designed

precludes procreation and child rearing. Adoption is quite

to maintain While Supremacy, We liave consistently

16
denied the constitutionality et U K r i i s u r e s wiiich restrict
Ihc riglits ot oitiueiis on uccuunl af race. There can
be no doubt tbal n w t r l c t i n g tlu; freedom to marry
solely because of racial class!(ication.s violates the central meaning of the lOijuiii Protection Cianse. Lovini/
V. Virginia, 388 U.S, at 11-12.
The Minnesota Supreme Court ruled that the Lomitg
decision is inapplicable to the instant case on the ground
that "there ia a clear distinction between u marital restriction based merely upon lace and one .based upon tho fimilaiiiental difference in sex-' (Apj)., tnfia, p. 23a). It is true
that the inherently auajiect test whicii Ihi.s Court apiilied
to classifications based uiion race, (see, e.g., Loving v,
Virginm, supra; McLaughlin v. Florida, supra), has not
yet been extended to classihealiona based upon sex (see
!i,:ed V. Reed, !)2 S. Cl. 251, ,10'ed.2d 225 (11171)), ilowover, this Court has indicated that when a fundamental
rightsuch as marriageis denied to a group by sonsa
classification, the deilial Should be judged by the standard
that places on governmcmt tiie burden of demonstrating
a legitiinate subordinating interest; that is compelling.
Bhnpiro v. Thompson, HD4 U.S. G18.(19G9). Aa we have
already indicated neither a U'gitipiatc nor a subordinating
reason for this classification has been or can be asoribed.
Kvon if we assume that the cla3.siriealion at issue in this
case ia not to be .judged by ttie. iiiore stringent "constitutionally suspect" and ".su!wr;linattnK interest" standards,
the Minnesota classification is infirm.
The discrimination in this case is one of gender, Especially significant in thi.s regard is the Court'.s recent decision in lieed v. iee^,'92 S, Ct. 251, 30 L . ed,2d 225 (1971),

17
which held that an Idaho statute, which provided tliat as
between persons equally qualilied to administer estates
males must be picfciiccl to I'cmales, is vioialive of tbu
equal protecLioii clause of HIK Fourte<uUh Amendment,
There the Court said (30 U ud.2d at 229);
In aiiplying tlsat cianse, tlus Court has consistently
leoogniised that the Fourteenth amcrjilment does not
deny to States tho power to treat ditferent c l a s B a s of
persons in dlffetcnt ways, [Citations omitted,] Tiie
Equal Protection Clause of that Amendment does,
however, deny to States tlie power to legislate that
different treatment lie acuorded to persons placed by
a statute mto different classes on the basis of criteria
wholly unrelated to the objective of that statute, A
classification "must be reasonable, not arbitrary, and
must rest upon some ground of difference iiaviug a
fair and substantial relation to the object of the legislation, 80 that all jiersons similarly circujustanced
shall be treated alike." Royster Guano Co, v. Vtiginut,
253 U.S. 412, 415 (1920).
Childless same aex couples, for example, are "similarly
circumstanced" to eliildlesa heterosexual couples. Thus,
under the Heed and Royster cases, they must be treated
alike.
Even when judged by this less stniigcnt standard, the
Minnesota classification cannot pass constitutional muster.
First, it is difficult to ascertain the objort of the legisiation
construed by the Minnesota courts. Socmid, whatever objects are ascribed for the legislation do uot bear any fair
and substantial rclationaliip to the groim<l upon which tlie

19
18

difference ia drawn between i-amc sex and iliiTercnl gfi

mam ages.'
II.
Appellee's refusal to legUiiiiale appellanls' marriage
constitutes an unwan-anted invasion of the privacy in
violation of the Ninth and Fourleeullt Auiendineuts,
Marriage between two persons is a' personal affair, one
whicli tlie state may deny or encumber only when there
is a compelling reason to do so. Marriag and marital
privacy are substantial rights protected by the Ninth
AmenUuicnt as well as the jfourteent'ji Amendment due
process clause. By not allowing appellants the legitinmcy
of their marriages, the statu is de;(iying tJiem this basic
nght and unlawfully meddling in their piivacy.
To hold that a right so basic and fundaiiiental and
so deep-rooted in our society as the right of privacy
in iiiarTiage may be infringed because titat right is
nut guarantee! in so many words,by the first eighl
auiendments to the Coustitullon is to ignore the Ninth
Amendment and to give it no effect whatsoever.
Griswold v. Connenliaul, iiSI U.S. 47!), 4f!l-432 (Ooldberg, J.,
concurring); see also, Mindid v. Unittd Staian Uivil Sarvw,c Commission, 312 F , Supp. 485 (N.D. Cal. 1970). Accordingly, Minnesota's refusal to legitiinate the appellants'
marriage merely because oh' tiie sex ui the ap]>licants is
'The fact that the parties to the 'rloslrod fiuiiifl svx marriage are
not biirnid from marrijige nll(i.U(!llnir'is irnileviuit t,o the coiialitu.
tloiiiil \m\,K, Hc.e Head v. liifn't, sni'ia; LoHwj v. Vinjtnta, anpra;
Mr.Lawjhlin v. Florida, .ivpra.

a deriift! of the right to murry and to piivacy reserved

to them of the Ninth and .h'ourteentii Aitiendments. See
Qriswold v. Coniieciicxit, supra; Loving v. Virginw, SSB
U.S. 1 (19(57); ef. Boddie v. Connecticut, 401 U.S. 371
(1971). Indeed, it is the most fundamental invasion of
the privacy of the marital relationship i'or the state to
attempt to scrutinize tlie internal dynamics of Ihat relationship. Absent a showing of compelling mterest, or an
invitation from a ))arty to the relationship, it is none of tlie
state's business whether the individuals to the relationship
intend to procreate or not. Nor is it the state's business to
determine whether the ijartiea intend to engage in sex acts
or any particular aex acts, Cf., e.g., Qnswold v. Oonnecticat, su/pra.

CONCLUSION
For the reasons set forth above, probable jurlgdicUon
should be noted,
BoBpeetfully submitted,
R. MlOHABTi WEXUKllBEti

Minnesota Civil Liberties Union

2,323 East Henneiun Avenue
Minneapolis, Minnesota 55413
L Y H K S . CASTNEB

1625 Park Avenue

Minneapolis, Minnesota 55404
Attorneys for Appellants