Documente Academic
Documente Profesional
Documente Cultură
Robert B. Anderson
Justin L. Bell
May, Adam, Gerdes & Thompson, LLP
503 S. Pierre St., P.O. Box 160
Pierre, SD 57501-0160
Telephone: (605) 224-08803
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TABLE OF CONTENTS
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TABLE OF AUTHORITIES .......................................................... ii
INTRODUCTION ........................................................................ 1
ARGUMENT
I.
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TABLE OF AUTHORITIES
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INTRODUCTION
This reply brief responds to the arguments set forth in
Plaintiffs-Appellees Brief (hereinafter PB).1 For the reasons set
forth below and those already asserted in Defendants initial brief,
Plaintiffs arguments must be rejected and the district courts
determinations reversed.
ARGUMENTS
I
The district court erred in asserting jurisdiction over
Plaintiffs claims.
Plaintiffs jurisdictional arguments are unpersuasive.
Plaintiffs claims lie outside the jurisdiction of the federal court
under the Tenth Amendment of the United States Constitution and
the domestic relations exception to federal question jurisdiction.
Federalism, protected by the Tenth Amendment, preserves the
integrity, dignity, and residual sovereignty of the States, while
secur[ing] to citizens the liberties that derive from the diffusion of
The same references to the parties and record set forth in
Defendants-Appellants Brief (hereinafter DB) are used here.
Appellants rely on the Statement of the Case and Facts, the
Standard of Review and reassert all arguments presented in its
initial brief.
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III
The United States Supreme Courts precedent in Baker
and this Courts precedent in Bruning control.
Plaintiffs ask this Court to simply disregard this Courts
holding in Bruning that Nebraskas constitutional amendment
upholding the traditional definition of marriage, which is almost
identical to South Dakotas, should receive rational-basis review
under the Equal Protection Clause, rather than a heightened level
of judicial scrutiny. Bruning, 455 F.3d at 865-66. See also
Richenberg v. Perry, 97 F.3d 256, 260 (8th Cir. 1996) (heightened
scrutiny rejected in a due process challenge based on a claim that
homosexuality is a suspect classification). Bruning necessitates
rational basis review here.
Plaintiffs ignore Bruning and its reliance upon Baker by
attempting to differentiate the claims brought in those cases from
those currently before this Court. PB 17-21. However, Bruning and
Bakers applicability to Plaintiffs claims cannot be dissected away.
The claims made in Bruning are not significantly distinct from the
equal protection claims made here. The Bruning plaintiffs, while
not asserting a right to same-sex marriage, were seeking to
overturn the Nebraska Constitutional Amendment restricting
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(continued . . .)
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Craig, 429 U.S. at 197 (1976); City of Cleburne, 473 U.S. at 440-41
(1985).
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Westchester County Med., 807 F.2d 304, 306 (2d Cir. 1986); Ulane
v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984).
The genesis of lower court decisions finding gender
discrimination in the context of same-sex marriage is the
concurring opinion in Latta v. Ottner, 771 F.3d 456, 479-85 (9th
Cir. 2014) (Berzon, J., concurring). The judge in the concurring
opinion wrongly lumps together all forms of potential sex
discrimination into one category, labeling it all as gender
discrimination. This is simply not supported by the case law or a
common sense application of the law. Discrimination based upon
gender requires that members of one sex are exposed to
disadvantageous terms or conditions . . . to which members of the
other sex are not exposed. Oncale v. Sundowner Offshore Services,
523 U.S. 75, 80 (1998).
Plaintiffs have cited no Supreme Court or Eighth Circuit
precedent stating that sexual orientation discrimination claims are
treated the same as gender discrimination for equal protection
purposes. South Dakota marriage laws do not demonstrate any
preference to one gender over the other. Under South Dakota law,
neither males nor females may marry another person of the same
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gender. In this respect, men and woman are both treated equally
under the law. Nonetheless, Plaintiffs ask this Court to recognize
its gender discrimination claim. This Court should decline to do so.
B.
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between one man and one woman since territorial days. APP 19192; DB 6-8. Accordingly, amendments to South Dakotas marriage
laws in 1996 and 2006 only sought to maintain the status quo.
Significantly, the amendments did not remove rights previously
enjoyed by same-sex couples, but rather, adopted a long existing,
widely held social norm already reflected in state law. DeBoer, 772
F.3d at 408.
The sole factual allegation made in support of Plaintiffs
animus claim appears in Plaintiffs Statement of Material Facts 3
([House Bill 1143] was motivated, at least in part, by the prospect
of legal marriage for same-sex couples in Hawaii following the
Supreme Court of Hawaiis decision . . .) and 5 (The
documentation that accompanied the 2006 ballot included the
statement that marriage is a union between one man and one
woman and that the State of South Dakota should not recognize
any other kind of marriage). These kinds of facts do not support
a claim of animus.
This precise argument was rejected by the Sixth Circuit in
DeBoer. The Court found that the statewide initiative codified a
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long existing, widely held social norm already reflected in state law.
DeBoer, 772 F.3d at 408. The Court stated:
Neither was the decision to place the definition of marriage
in a States constitution unusual, nor did it otherwise
convey the kind of malice or unthinking prejudice the
Constitution prohibits. Nineteen States did the same thing
during that period. And if there was one concern animating
the initiatives, it was the fear that the courts would seize
control over an issue that people of good faith care deeply
about. If that is animus, the term has no useful meaning.
Id. (citations omitted).
Plaintiffs claim that South Dakota marriage laws reflect
animus toward one particular group to which they are a member is
also without merit. The laws do not single out same-sex couples.
The laws apply with equal force to individuals attempting to enter
into or have recognized polygamous marriages. Accordingly, South
Dakotas marriage laws can only be interpreted to reflect the
Legislature and electorates desire to uphold the traditional
definition of marriage.
CONCLUSION
Plaintiffs have not provided this Court with a legal or factual
basis to uphold the district courts decision. The district court
erred in failing to follow Baker and Bruning, failing to apply rational
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CERTIFICATE OF COMPLIANCE
1.
for viruses and that the brief is, to the best of my knowledge and
belief, virus free.
Dated this 2nd day of April, 2015.
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 2nd day of April,
2015, a true and correct copy of Appellants Reply Brief was
submitted to the Eighth Circuit Court of Appeals for review.
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