15-1186 South Dakota's Opening Brief

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

________________
No. 15-1186
________________
ROSENBRAHN, et al.,
Plaintiffs-Appellees,
v.
DAUGAARD, et al.,
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
SOUTH DAKOTA, SOUTHERN DIVISION
________________
THE HONORABLE KAREN E. SCHREIER
United States District Court Judge
________________
APPELLANTS BRIEF
________________
Jeffrey P. Hallem
Ellie J. Bailey
Assistant Attorneys General
1302 E. Highway 14, Suite 1
Pierre, SD 57501-8501
Telephone: (605) 773-3215
Attorneys for State DefendantsAppellants
Robert B. Anderson
Justin L. Bell
May, Adam, Gerdes & Thompson, LLP
503 South Pierre Street, P.O. Box 160
Pierre, South Dakota 57501
Telephone: (605) 224-8803
Attorneys for Defendant-Appellant
Sherman
Appellate Case: 15-1186
Page: 1
Date Filed: 03/02/2015 Entry ID: 4249370
SUMMARY OF THE CASE AND ORAL ARGUMENT REQUEST

Plaintiffs, six same-sex South Dakota couples, filed a
complaint seeking declarative and injunctive relief alleging South
Dakota marriage laws deprive them of their constitutional rights to
equal protection, due process, and travel. Defendants, South
Dakota and Brown County officials, moved to dismiss the complaint
for failure to state a claim. The district court dismissed Plaintiffs
right to travel claim but otherwise denied the motion to dismiss.
On cross motions for summary judgment, the district court
granted Plaintiffs motion for summary judgment and denied
Defendants motion for summary judgment. Finding a fundamental
right to marriage, the district court held that South Dakota
marriage laws violate the Due Process and Equal Protection Clauses
of the Fourteenth Amendment. The judgment was stayed pending
appeal. Defendants filed a timely notice of appeal arising from the
district courts partial denial of Defendants motion to dismiss, and
the district courts grant of Plaintiffs summary judgment motion
and denial of Defendants summary judgment motion. Appellants
seek reversal of the district courts judgment and respectfully
request 20 minutes for oral argument.
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TABLE OF CONTENTS
PAGE
SUMMARY OF THE CASE AND STATEMENT WITH
REGARD TO ORAL ARGUMENT ................................................... i
TABLE OF AUTHORITIES ...............................................................iv
JURISDICTIONAL STATEMENT ...................................................... 1
STATEMENT OF ISSUES ................................................................ 2
STATEMENT OF THE CASE AND FACTS ........................................ 3
SUMMARY OF THE ARGUMENT .................................................... 9
STANDARD OF REVIEW ................................................................. 9
ARGUMENTS
I.
The district court erred in asserting jurisdiction over

Plaintiffs claims by failing to apply the Tenth Amendment
and the domestic relations exception to federal question
jurisdiction............................................................................ 10
II.
The district court erred in failing to follow binding

precedent set forth in Baker v. Nelson, 409 U.S. 810 (1972)
and Citizens for Equal Protection v. Bruning, 455 F.3d 859
(8th Cir. 2006). ..................................................................... 15
III.
The district court erred in concluding that Plaintiffs have a

fundamental right to same-sex marriage. ............................... 22
IV.
The district court erred in holding that South Dakota laws

impermissibly deny Plaintiffs alleged right to same-sex
marriage in violation of the Due Process and Equal
Protection Clauses of the Fourteenth Amendment. .................. 27
ii
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CONCLUSION .............................................................................. 38
CERTIFICATE OF COMPLIANCE .................................................. 39
CERTIFICATE OF SERVICE.......................................................... 40
iii
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TABLE OF AUTHORITIES
PAGE
FEDERAL CASES CITED:
Andrus ex rel. Andrus v. Arkansas, 197 F.3d 953 (8th Cir. 1999).. 10
Ankenbrandt v. Richards, 504 U.S. 689 (1992) ............................. 13
Armour v. City of Indianapolis, 132 S.Ct. 2073 (2012) ................... 32
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ............................. 17
Baker v. Nelson, 409 U.S. 810 (1972) .................................... passim
Baskin v. Bogan, 766 F.3d 648 (7th Cir. 20140) ........................... 23
Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014)........................... 23
Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) ........................... 23
Bourke v. Beshear, ___ U.S. ___, 2015 WL 213651
(January 16, 2015) ..................................................................... 20
Christiansen v. West Branch Cmty. Sch. Dist., 674 F.3d 927
(8th Cir. 2012) ............................................................................ 36
Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8th Cir. 2006) ............................................... passim
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ........ 30
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) ......... 30
Collins v. City of Harker Heights, 503 U.S. 115 (1992) ................... 36
Conde-Vidal v. Garcia-Padilla, 2014 WL 5361987
(P.R. Oct. 21, 2014) .................................................................... 20
iv
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Dandridge v. Williams, 397 U.S. 471 (1970) .................................. 29

DeBoer v. Snyder, ___ U.S. ___, 2015 WL 213650
(January 16, 2015) ..................................................................... 20
DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) ..................... passim
Doe v. Hodgson, 478 F.2d 537 (2d Cir. 1973) ................................ 17
Elk Grove Unified School District v. Newdow,
542 U.S. 1, (2004) ................................................................ 13, 14
Ex parte Burrus, 136 U.S. 586 (1890) ....................................... 2, 13
F.C.C. v. Beach Commcns, Inc., 508 U.S. 307 (1993) .................... 30
Gallagher v. City of Clayton, 699 F.3d 1013 (8th Cir. 2012) .......... 37
Goodridge v. Dept of Public Health, 798 N.E.2d 941 (Mass. 2003) . 22
Gregory v. Ashcroft, 501 U.S. 452 (1991) ...................... 2, 11, 29, 35
Haddock v. Haddock, 201 U.S. 562 (1906).................................... 12
Heller v. Doe by Doe, 509 U.S. 312 (1993)..................................... 32
Hicks v. Miranda, 422 U.S. 332 (1975).......................................... 17
Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)............................... 18
Hood v. United States, 342 F.3d 861 (8th Cir. 2003) ..................... 17
Iowa Right to Life Comm., Inc. v. Tooker, 717 F.3d 576
(8th Cir. 2013) ............................................................................ 29
Kansas City Taxi Cab Drivers Assn v. City of Kansas City, Mo.,
742 F.3d 807 (8th Cir. 2013) ...................................................... 37
v
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Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) ................. 23, 34
Lannan v. Maul, 979 F.2d 627 (8th Cir. 1992) .............................. 14
Latta v. Otter, 2015 WL 128117 (9th Cir. Jan. 9, 2015) .......... 20, 23
Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) .................................. 23
Lawrence v. Texas, 539 U.S. 558 (2003) ....................................... 33
Lexmark Intl Inc. v. Static Control
Components, Inc., 134 S.Ct. 1377 (2014) .................................... 14
Llapa-Sinchi v. Mukasey, 520 F.3d 897 (8th Cir. 2008) ................... 9
Loving v. Virginia, 388 U.S. 1 (1967) ....................................... 12, 25
Mass. v. U.S. Dept. of Health and Human Servs.,
682 F.3d 1 (1st Cir. 2012) .......................................................... 20
Maynard v. Hill, 125 U.S. 190 (1888) ............................................ 33
Nordlinger v. Hahn, 505 U.S. 1 (1992) ........................................... 29
Novotny v. Tripp Cnty., S.D., 664 F.3d 1173 (8th Cir. 2011) ............ 9
Obergell v. Hodges, ___ U.S. ___, 2015 WL 213646
(January 16, 2015) ..................................................................... 20
Ohio ex. rel. Popovici v. Agler, 280 U.S. 379 (1930) ........................ 13
Pennoyer v. Neff, 95 U.S. 714 (1877)............................................. 11
Reno v. Flores, 507 U.S. 292 (1993) .............................................. 37
Robicheaux v. Caldwell, 2 F.Supp.3d 910 (E.D. La. 2014) . 23, 32, 34
Romer v. Evans, 517 U.S. 620 (1996) ...................................... 24, 35
vi
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Schmidt v. Des Moines Pub. Schs., 655 F.3d 811

(8th Cir. 2011) ...................................................................... 29, 36
Schuette v. BAMN, 134 S.Ct. 1623 (2014) ............................... 34, 35
Shelby Cnty., Ala. v. Holder, 133 S.Ct. 2612 (2013) ...................... 11
Sosna v. Iowa, 419 U.S. 393 (1975) .............................................. 29
Tanco v. Haslam, ___ U.S. ___, 2015 WL 213648
(January 16, 2015) ..................................................................... 20
Turner v. Safley, 482 U.S. 78 (1987) ............................................. 26
United States v. Crawford, 115 F.3d 1397 (8th Cir. 1997) ......... 2, 14
United States v. Windsor, 133 S.Ct. 2675 (2013) .................... passim
Wallace v. Wallace, 736 F.3d 764 (8th Cir. 2013) .......................... 14
Washington v. Glucksberg, 521 U.S. 702 (1997) ............ 3, 22, 23, 35
Weems v. Little Rock Police Dept, 453 F.3d 1010 (8th Cir. 2006) ... 37
Williams v. North Carolina, 317 U.S. 287 (1942) ...................... 13, 33
Zablocki v. Redhail, 434 U.S. 374 (1978) ....................................... 26
FEDERAL STATUTES CITED:
28 U.S.C. 1331 ...................................................................... 1, 13
29 U.S.C. 1291 ............................................................................ 2
STATE STATUTES CITED:
SDCL 25-1-1 .............................................................................. 5, 7
SDCL 25-1-9 .................................................................................. 7
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SDCL 25-1-38 ............................................................................ 5, 8

SDCL ch. 25-2................................................................................ 7
SDCL ch. 25-5................................................................................ 7
SDCL Title 25 ................................................................................. 1
OTHER AUTHORITIES:
1993 SD Sess. Laws, ch. 191 ......................................................... 7
S.D. Const. art. 21, 9 ........................................................... 1, 5, 8
U.S. Const. amend. XIV, 1 ......................................................... 36
viii
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JURISDICTIONAL STATEMENT1
Plaintiffs filed a complaint against Defendants in their official
capacities challenging the constitutionality of South Dakotas
marriage laws at S.D. Const. Article 21, Sec. 9 and SDCL Title 25.
APP 8-56. The purported basis for the district courts subject
matter jurisdiction is federal question pursuant to 28 U.S.C.
1331.
The Honorable Karen E. Schreier, United States District
Judge for the District of South Dakota, Southern Division, entered
an order on November 14, 2014, granting in part and denying in
part Defendants motion to dismiss. APP 138-65. On January 12,
2015, Judge Schreier entered an order and judgment granting
Plaintiffs motion for summary judgment and denying Defendants
motion for summary judgment. APP 276-305. Defendants filed a
Plaintiffs-Appellees Jennie Rosenbrahn, Nancy Rosenbrahn,
Jeremy Coller, Clay Schweitzer, Lynn Serling-Swank, Monica
Serling-Swank, Krystal Cosby, Kaitlynn Hoerner, Barbara Wright,
Ashley Wright, Greg Kniffen and Mark Church, are hereafter
collectively referred to as Plaintiffs. Defendants-Appellants,
Dennis Daugaard, Marty Jackley, Kimberly Malsam-Rysdon,
Trevor Jones, and Carol Sherman, are hereafter collectively
referred to as Defendants. References to documents in the Joint
Appendix are cited as APP, followed by the appropriate page
designation. References to individual district court docket entries
are cited as Doc. followed by the corresponding docket number.
1
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timely Notice of Appeal on January 26, 2015. APP 306-07. This

Court has jurisdiction pursuant to 29 U.S.C. 1291.
STATEMENT OF ISSUES
I.
Whether the district court erred in asserting jurisdiction

over Plaintiffs claims by failing to apply the Tenth
Amendment and the domestic relations exception to
federal question jurisdiction?
The district court determined the Tenth Amendment did
not bar Plaintiffs constitutional challenges. The district
court further determined the domestic relations
exception applied only to diversity jurisdiction, not
federal question jurisdiction.
Gregory v. Ashcroft, 501 U.S. 452 (1991)
Ex parte Burrus, 136 U.S. 586 (1890)
U.S. v. Crawford, 115 F.3d 1397 (8th Cir. 1997)
II.
Whether the district court erred in concluding it was not

bound by Baker v. Nelson, 409 U.S. 810 (1972) and
Citizens for Equal Protection v. Bruning, 455 F.3d 859
(8th Cir. 2006)?
The district court determined that doctrinal
developments by the United States Supreme Court
rendered Baker without precedential value. The district
court further determined it was not bound by Bruning
because Bruning did not extend its holding to include
that there is no fundamental right to same-sex
marriage.
Baker v. Nelson, 409 U.S. 810 (1972)
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(8th Cir. 2006)
III.
Whether the district court erred in concluding that

Plaintiffs have a fundamental right to same-sex
marriage?
The district court determined there is a fundamental
right to marriage, and accordingly that marriage cannot
be broken down into sub-rights depending on the
individuals attempting to exercise that right.
Washington v. Glucksberg, 521 U.S. 702 (1997)
DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)
IV.
Whether the district court erred in holding that South

Dakota laws impermissibly deny Plaintiffs alleged right
to same-sex marriage in violation of the Equal Protection
and Due Process Clauses of the Fourteenth
Amendment?
The district court concluded that South Dakota
marriage laws violate the Equal Protection and Due
Process Clauses of the Fourteenth Amendment.
(8th Cir. 2006)
DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)
STATEMENT OF THE CASE AND FACTS
Procedural History
On May 22, 2014, Plaintiffs, six same-sex couples residing in
South Dakota, filed a three-count complaint alleging that South
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Dakota marriage laws deprived them of their constitutional rights

to equal protection, due process, and travel. APP 8-56. Plaintiffs
sought injunctive and declaratory relief. APP 54-55. Named
Defendants are state and county officials sued in their official
capacities.2 APP 32-35.
On June 17, 2014, Defendants moved the district court to
dismiss all claims. APP 58-60. On July 3, 2014, Plaintiffs moved
for summary judgment. APP 61-62. Defendants requested they be
allowed to defer their answer and response to Plaintiffs motion for
summary judgment until the district court ruled on Defendants
pending motion to dismiss. Doc. 28. The district court granted
Defendants request. APP 136.
The district court heard oral argument regarding the motion
to dismiss on October 17, 2014. APP 137. On November 14,
Dennis Daugaard is South Dakota Governor. Marty Jackley is

South Dakota Attorney General. Kimberly Malsam-Rysdon is
South Dakota Secretary of Health; Malsam-Rysdon was
substituted for Defendant Doneen Hollingsworth by Order of this
Court on February 12, 2015. Trevor Jones is South Dakota
Secretary of Public Safety. Carol Sherman is the Brown County
Register of Deeds (the County in which four plaintiffs reside).
Plaintiffs voluntarily dismissed Defendant Donna Mayer,
Pennington County Register of Deeds, on June 16, 2014. APP 57.
2
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2014, the district court issued an order granting in part and

denying in part Defendants motion to dismiss. APP 138-65. The
district court granted Defendants motion to dismiss Plaintiffs
right to travel claim, but denied the motion as to Plaintiffs equal
protection and due process claims. Id. On November 25, 2014,
Defendants answered Plaintiffs complaint and moved for summary
judgment. APP 166-176. On January 12, 2015, the district court
issued an order wherein it granted Plaintiffs motion for summary
judgment and denied Defendants motion for summary judgment.
APP 276-303. In doing so, the district court held that SDCL
25-1-1, SDCL 25-1-38, and Article 21, 9 of the South Dakota
Constitution and any other provision of state law that precludes
people from marrying, or refuses to recognize an existing marriage,
solely because the individuals are of the same gender are
unconstitutional because they violate the Due Process Clause and
the Equal Protection Clause of the Fourteenth Amendment.
APP 302. The district court enjoined Defendants from enforcing
those laws or otherwise declining to issue a marriage license solely
because the applicants are of the same gender. Id. The district
court stayed final judgment pending appeal. APP 304-05.
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The rulings presented for this Courts review include: the

district courts partial denial of Defendants motion to dismiss and
the district courts grant of Plaintiffs motion for summary
judgment and denial of Defendants motion for summary
judgment. APP 138-65, 276-305. The district courts dismissal of
Plaintiffs right to travel claim has not been appealed by Plaintiffs
and, accordingly, is not before this Court.
South Dakota Marriage Laws
Prior to South Dakota statehood, the legislature of the Dakota
Territory adopted an Act Regulating Marriage at its first legislative
session in 1862. APP 191-94. The Act only authorized marriages
between a male person of sixteen, and a female of fourteen years
as valid. APP 192, ch. 59, sec. 2. The Act also legitimized children
whose parents were subsequently married. APP 194, ch. 59, sec.
17. In 1890, the first session of the South Dakota Legislature
expressly re-enacted the Territorial Laws and adopted an act
related to issuing marriage licenses. APP 199-201, chs. 105 and
109. These acts continued to define marriage as between a male
and female couple. Id. The Legislature adopted a revised civil
code in 1903, including substantial revisions to the States
6
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marriage laws. APP 202-15. These laws continued the

authorization of marriage between a male and a female. APP 203,
ch. I, sec. 36.
In 1975, South Dakota Codified Law (SDCL) 25-1-9 was
amended to simply refer to [a]ny unmarried person. APP 261.
The purpose of the amendment is reflected in the title of the Bill:
Lowering Marriageable Age for Males. APP 260-61. The other
provisions concerning marriage were continued. In 1993, the
reference in SDCL 25-1-9 to any unmarried person was amended
to applicant. 1993 SD Sess. Laws, ch. 191.
In 1996, the Legislature amended SDCL 25-1-1 (the definition
of marriage) to read, in part: Marriage is a personal relation,
between a man and a woman, arising out of a civil contract to
which the consent of parties capable of making it is necessary.
APP 265-66. This is the current form of SDCL 25-1-1. Other
provisions concerning eligibility for marriage, and the obligations
and responsibilities between spouses and for children, continued.
SDCL chs. 25-2 and 25-5.
In 2000, the Legislature amended South Dakota law
concerning the recognition of marriages performed outside the
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State. APP 267-68. SDCL 25-1-38 was amended to read as

follows: Any marriage contracted outside the jurisdiction of this
state, except a marriage contracted between two persons of the
same gender, which is valid by the laws of the jurisdiction in which
such marriage was contracted, is valid in this state. Id. This is
the current form of SDCL 25-1-38.
In 2005, the Legislature proposed the following amendment
to the South Dakota Constitution: Only marriage between a man
and a woman shall be valid or recognized in South Dakota. The
uniting of two or more persons in a civil union, domestic
partnership, or other quasi-marital relationship shall not be valid
or recognized in South Dakota. S.D. Constitution, Art. 21, 9. In
2006, the proposed constitutional amendment was approved by
approximately 52% of the voters (172,242 for and 160,173
against). APP 182. Consistent with the above chronology, South
Dakota has never issued a marriage license to a couple of the
same gender, even between 1976 and 1996 when South Dakota
statutes did not explicitly limit the issuance of marriage licenses to
opposite-sex couples. APP 177-83.
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SUMMARY OF THE ARGUMENT

Plaintiffs claims by failing to apply the Tenth Amendment and
domestic relations exception to federal question jurisdiction. The
district courts partial denial of Defendants motion to dismiss, and
grant of Plaintiffs motion for summary judgment and denial of
Defendants motion for summary judgment are wholly inconsistent
with binding precedent from this Court and the United States
Supreme Court. See Citizens for Equal Protection v. Bruning, 455
F.3d 859 (8th Cir. 2006); Baker v. Nelson, 409 U.S. 810 (1972).
The district court erred in holding there is a fundamental right to
marriage regardless of who is being married and by applying a
heightened standard of review. Because South Dakota marriage
laws withstand rational basis review, as consistent with this
Courts rational in Bruning, this Court must reverse.
STANDARD OF REVIEW
This Court review[s] a district courts grant of summary
judgment de novo[.] Novotny v. Tripp Cnty., S.D., 664 F.3d 1173,
1176 (8th Cir. 2011). Constitutional issues are also reviewed
de novo. Llapa-Sinchi v. Mukasey, 520 F.3d 897, 900 (8th Cir.
9
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2008) (We review constitutional issues de novo.). The district

courts partial denial of Defendants motion to dismiss is similarly
reviewed de novo. Andrus ex rel. Andrus v. Arkansas, 197 F.3d
953, 955 (8th Cir. 1999) (We review the District Courts denial of
defendants motion to dismiss de novo.).
ARGUMENTS
I
Plaintiffs claims by failing to apply the Tenth Amendment
and the domestic relations exception to federal question
jurisdiction.
While it is clear many other federal courts have accepted
jurisdiction over same-sex marriage cases, they have almost
entirely done so without questioning their jurisdiction even
though the Supreme Court dismissed an appeal of a constitutional
challenge to a same-sex marriage prohibition for want of a
substantial federal question in Baker v. Nelson, 409 U.S. 810
(1972).3 Plaintiffs claims lie outside the jurisdiction of the federal
court under both the Tenth Amendment of the United States
Constitution and the domestic relations exception to federal
Appellees in Baker presented the domestic relations exception to
the Supreme Court in their briefing.
3
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question jurisdiction. Therefore, the district court erred in

asserting jurisdiction over Plaintiffs claims.
The U.S. Constitution establishes a system of dual
sovereignty between the States and the Federal Government.
Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). The Supreme Court
has stated:
This federalist structure of joint sovereigns preserves to
the people numerous advantages. It assures a
decentralized government that will be more sensitive to
the diverse needs of a heterogeneous society; it
increases opportunity for citizen involvement in
democratic processes; it allows for more innovation and
experimentation in government; and it makes
government more responsive by putting the States in
competition for a mobile citizenry.
Id. at 458. Federalism, protected by the Tenth Amendment,
preserves the integrity, dignity, and residual sovereignty of the
States[,] while it secures to citizens the liberties that derive from
the diffusion of sovereign power. Shelby Cnty., Ala. v. Holder, 133
S.Ct. 2612, 2623 (2013) (citation omitted).
Under this system of dual sovereignty, the states have the
power and authority to define marriage. The Supreme Court
almost 150 years ago recognized this state authority in Pennoyer v.
Neff, 95 U.S. 714, 734-35 (1877) (The State . . . has absolute right
11
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to prescribe the conditions upon which the marriage relation

between its own citizens shall be created[.]). See also Haddock v.
Haddock, 201 U.S. 562, 575 (1906), overruled on other grounds
(No one denies that the states, at the time of the adoption of the
Constitution, possessed full power over the subject of marriage
and divorce.); Loving v. Virginia, 388 U.S. 1, 7 (1967) ([M]arriage
is a social relation subject to the States police power.).
The Supreme Court recently recognized this state authority in
United States v. Windsor, 133 S.Ct. 2675 (2013), stating that [b]y
history and tradition the definition and regulation of marriage . . .
has been treated as being within the authority and realm of the
separate States and [t]he states, at the time of the adoption of the
Constitution, possessed full power over the subject of marriage
and divorce . . . [and] the Constitution delegated no authority to
the Government of the United States on the subject of marriage
and divorce. Windsor, 133 S.Ct. at 2689-91. This separation of
authorities is embodied in the Tenth Amendment, which reserves
those authorities entirely to the states. As the Court
acknowledged, when the Constitution was adopted the common
understanding was that the domestic relations of husband and
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wife and parent and child were matters reserved to the States. Id.
(quoting Ohio ex. rel. Popovici v. Agler, 280 U.S. 379, 383-84
(1930)); see also Bruning, 455 F.3d at 867.
An exception to federal question jurisdiction under 28 U.S.C.
1331 has been established by the Supreme Court. In Ex parte
Burrus, 136 U.S. 586, 593-94 (1890), the Supreme Court stated
that the whole subject of the domestic relations of husband and
wife, parent and child, belong to the laws of the states, and not to
the laws of the United States. In Williams v. North Carolina, 317
U.S. 287, 298 (1942), the Court stated that [e]ach state as a
sovereign has a rightful and legitimate concern in the marital
status of persons domiciled within its borders. The Court
specifically referred to this domestic relations exception in
Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992), although it
only referenced divorce, alimony and child custody.
In 2004, the Supreme Court appears to have applied the
domestic relations exception to federal questions. Elk Grove
Unified School District v. Newdow, 542 U.S. 1, (2004), abrogated on
other grounds, Lexmark Intl Inc. v. Static Control Components, Inc.,
134 S.Ct. 1377 (2014). The Court stated:
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[W]hile rare instances arise in which it is necessary to

answer a substantial question that transcends or exists
apart from the family law issue, . . . in general it is
appropriate for the federal courts to leave delicate issues
of domestic relations to the State courts.
...
When hard questions of domestic relations are sure to
affect the outcome, the prudent course is for the federal
court to stay its hand rather than to reach out to resolve
a weighty question of constitutional law.
Newdow, 542 U.S. at 13, 17. Lexmark, which abrogated Newdow,
did not address either the domestic relations exception or
jurisdiction in general; as a result, it did not abrogate Newdows
application of the domestic relations exception. One must also
conclude the Supreme Court applied this doctrine in Baker.
Baker, 409 U.S. 810 (1972).
This Court recognized the domestic relations exception to
federal court jurisdiction in Lannan v. Maul, 979 F.2d 627 (8th Cir.
1992), holding that the domestic relations exception did not apply
to contract actions arising out of a divorce. In Wallace v. Wallace,
736 F.3d 764 (8th Cir. 2013), this Court found no federal court
jurisdiction over a tort claim associated with a state divorce
proceeding under the domestic relations exception. In U.S. v.
Crawford, 115 F.3d 1397 (8th Cir. 1997), this Court held the
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federal Child Support Recovery Act did not interfere with state
domestic relations laws, and therefore the domestic relations
exception did not apply. Unlike Crawford, Plaintiffs claims here
directly interfere with state marriage laws.
There is no question that marriage falls into the domestic
relations category; indeed, it is the preceding condition that leads
to divorce, alimony, and child support. Accordingly, the district
court erred in asserting jurisdiction over Plaintiffs claims.
II
The district court erred in failing to follow binding
precedent set forth in Baker v. Nelson, 409 U.S. 810
(1972) and Citizens for Equal Protection v. Bruning, 455
F.3d 859 (8th Cir. 2006).
The district court erred in finding it was not bound by Baker
v. Nelson, 409 U.S. 810 (1972) and Citizens for Equal Protection v.
Bruning, 455 F.3d 859 (8th Cir. 2006). To side-step this binding
precedent, the district court analyzed Baker and Bruning
separately, distinguishing each case on an individual basis. APP
145-58, 293 n.10. These cases, however, do not stand in isolation.
In failing to consider the cases together, the district court
erroneously rejected both Baker and Bruning.
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Bruning addressed an equal protection challenge to a

Nebraska Constitutional Amendment almost identical to South
Dakotas. Both Constitutional Amendments limit marriage to a
man and a woman. Bruning made several specific holdings
relevant to this appeal: first, that a class based upon sexual
orientation was not a suspect class requiring heightened scrutiny
review. Bruning, 455 F.3d at 866-67. Second, that states had the
power to regulate marriage and classify those persons who could
validly marry. Id. at 867. Third, that the Nebraska Constitutional
provision limiting marriage to a man and a woman had a rational
basis and did not violate the Equal Protection Clause. Id. at 86768. Finally, in rendering its decision, Bruning specifically
referenced and discussed the Supreme Courts decision in Baker to
support its holdings. Id. at 870-71. Baker dismissed, for want of
a substantial federal question, a mandatory appeal from a
Minnesota Supreme Court decision holding that same-sex
marriage was not a fundamental right and that the Minnesota
prohibition on same-sex marriage did not violate either the Due
Process or Equal Protection Clauses of the Fourteenth
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Amendment. Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn.

1971); Baker, 409 U.S. 810 (1972).
The district courts attempt to distinguish Baker by reasoning
that subsequent doctrinal developments justify departure from
Baker is faulty. Bakers dismissal was a disposition on the merits.
Hicks v. Miranda, 422 U.S. 332, 344 (1975) ([U]nless and until the
Supreme Court should instruct otherwise, inferior federal courts
had best adhere to the view that if the Court has branded a
question as unsubstantial, it remains so except when doctrinal
developments indicate otherwise[.]) (citation omitted). [L]ower
courts are bound by summary decisions of [the Supreme Court]
until such time as the Court informs (them) that (they) are not.
Id. at 344-45 (citing Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir.
1973). Similarly, district courts within the Eighth Circuit are
bound to follow decisions of this Court. See, e.g., Hood v. U.S.,
342 F.3d 861, 864 (8th Cir. 2003).
While Bruning did not directly address the issue of whether
same-sex marriage is a fundamental right, its reference to Baker
demonstrates this Courts recognition of the binding precedential
effect of Baker. For the district court to ignore the Courts
17
Page: 26
references to Baker and address subsequent doctrinal

developments as if Bruning did not exist is clear error.
The Supreme Court decisions rendered after Bruning that are
relied upon by the district court to ignore Baker, are Hollingsworth
v. Perry, 133 S.Ct. 2652 (2013) and Windsor. These decisions do
not constitute doctrinal developments that render Baker without
precedential value. In Hollingsworth, the Supreme Court relied on
the petitioners lack of standing to dismiss the petition.
Hollingsworth, 133 S.Ct. at 2659. This conveys nothing with
regard to the Supreme Courts stance on Bakers continued
precedential effect. Without standing, the Hollingsworth Court had
no need to address additional jurisdictional defects.
Further, Windsor did not invalidate state marriage
definitions, or establish a fundamental right to same-sex marriage.
Even the district court recognized Windsor did not address these
issues. APP 286. Windsor affirmed the states sovereign power to
define and regulate marriage noting that [t]he states, at the time
of the adoption of the Constitution, possessed full power over the
subject of marriage and divorce . . . [and] the Constitution
delegated no authority to the Government of the United States on
18
Page: 27
the subject of marriage and divorce. Windsor, 133 S.Ct. at 2691

(citations omitted). The lawful marriages referenced in Windsor,
are those marriages made lawful by state authorization of samesex marriage. Windsor, 133 S.Ct. at 2696-97. South Dakota has
not made the legislative choice of New York, the residence of the
Windsor Plaintiffs, to authorize same-sex marriage. As a result,
the holding of Windsor does not apply here. This was underscored
by Chief Justice Roberts:
I think it more important to point out that [the majoritys]
analysis leads no further. The Court does not have
before it, and the logic of its opinion does not decide, the
distinct question whether the States, in the exercise of
their historic and essential authority to define the
marital relation, ante, at 2692, may continue to utilize
the traditional definition of marriage.
Windsor, 133 S.Ct. at 2696 (Roberts, C.J., dissenting); see also
Windsor, 133 S.Ct. at 2709 (Scalia, J., dissenting) (State and
lower federal courts should take the Court at its word and
distinguish away.); Windsor, 133 S.Ct. at 2720 (Alito, J.,
dissenting) (To the extent that the Court takes the position that
the question of same-sex marriage should be resolved primarily at
the state level, I wholeheartedly agree.). The majority in Windsor
expressed no disagreement with the dissents on this point.
19
Page: 28
While some federal courts have used Windsor to make new

law in this area, other courts have held that Baker is binding
precedent. Mass. v. U.S. Dept. of Health and Human Servs., 682
F.3d 1, 8 (1st Cir. 2012) (citation omitted) (Baker is precedent
binding on us unless repudiated by subsequent Supreme Court
precedent.); DeBoer v. Snyder, 772 F.3d 388, 400 (6th Cir. 2014)4
(The [Supreme] Court has yet to inform us that we are not [bound
by Baker], and we have no license to engage in a guessing game
about whether the Court will change its mind or, more
aggressively, to assume authority to overrule Baker ourselves.);
Latta v. Otter, 2015 WL 128117, at *1 n.2 (9th Cir. Jan. 9, 2015)
(OScannlain, J., dissenting) (What the Supreme Court has
decided is that the federal courts should not intrude, as the panel
does here, on the choices of state electorates regarding whether to
define marriage as a male-female union.); Conde-Vidal v. GarciaPadilla, 2014 WL 5361987, at *6 (P.R. Oct. 21, 2014) (stating this
As this Court is aware, the United States Supreme Court granted
certiorari in Obergell v. Hodges, ___ U.S. ___, 2015 WL 213646
(January 16, 2015); Tanco v. Haslam, ___ U.S. ___, 2015 WL
213648 (January 16, 2015); DeBoer v. Snyder, ___ U.S. ___, 2015
WL 213650 (January 16, 2015); and Bourke v. Beshear, ___ U.S.
___, 2015 WL 213651 (January 16, 2015).
4
20
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Court will apply Baker v. Nelson, as the Supreme Court has

instructed it to do).
The district court further erred in dismissing Brunings
reliance on Baker as mere recognition (dicta) and in determining
that Bruning is not dispositive of the central issue before this
court, namely, whether plaintiffs can establish a deprivation of
their due process or equal protection rights based on a
fundamental right to marriage. APP 158.
Importantly, the claims made in Bruning are not significantly
distinct from the equal protection claims made here. The Bruning
plaintiffs, while not asserting a right to marriage or same-sex
unions, were seeking to overturn the Nebraska Constitutional
Amendment restricting marriage to a man and a woman so that
they could obtain state legislation authorizing same-sex marriage
or civil unions. Bruning, 455 F.3d at 865. The equal protection
claim brought by Plaintiffs here seeks to overturn an almost
identical State Constitutional Amendment (as well as other State
laws) restricting marriage to a man and a woman. While the
plaintiffs in the two cases are not identically situated, the equal
protection claims being made are the same: whether State
21
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marriage laws prohibiting same-sex marriage unconstitutionally

treat a class of persons differently than other similarly situated
persons. Accordingly, the claims are not sufficiently distinct to
justify the district courts rejection of Baker and Bruning.
III
The district court erred in concluding that Plaintiffs have
a fundamental right to same-sex marriage.
The district court erred in holding there is a fundamental
right to marriage regardless of who is being married. APP 288.
Under Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997), a
fundamental right is one that is objectively, deeply rooted in this
Nations history and tradition, . . . and implicit in the concept of
ordered liberty, such that neither liberty nor justice would exist if
they were sacrificed[.] (citations omitted) (internal quotation
marks omitted). South Dakota history reflects a tradition of
marriage between male and female partners. APP 192, ch. 59,
sec. 2. In contrast, same-sex marriage was unknown in the laws
of the United States before 2003. Goodridge v. Dept of Public
Health, 798 N.E.2d 941, 990 (Mass. 2003). While some states
have now authorized same-sex marriage, these state actions do not
22
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establish that same-sex marriage is objectively, deeply rooted in

this Nations history and tradition. See Glucksberg, 521 U.S. at
720-21. Other courts have found there is no fundamental right to
same-sex marriage. In DeBoer, the Sixth Circuit held there was no
fundamental right to same-sex marriage, reviewing the equal
protection and due process claims under the rational basis test,
and finding the states prohibition on same-sex marriage to be
constitutional. DeBoer, 772 F.3d 388, 410-13; see also
Robicheaux v. Caldwell, 2 F.Supp.3d 910, 918-19, 923 (E.D. La.
2014) (upholding a state prohibition on same-sex marriage under
the rational basis test, finding neither the existence of a
fundamental right nor the targeting of a suspect class).
While other courts have found a fundamental right to samesex marriage,5 none of these decisions bind this Court. In
contrast, Glucksberg does. Given the Glucksberg characterization
of a fundamental right as one deeply rooted in this Nations
The Fourth, Seventh, Ninth, and Tenth Circuits have recognized
a constitutional right to same-sex marriage. Bostic v. Schaefer,
760 F.3d 352 (4th Cir. 2014); Baskin v. Bogan, 766 F.3d 648 (7th
Cir. 20140); Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); Bishop v.
Smith, 760 F.3d 1070 (10th Cir. 2014); Kitchen v. Herbert, 755
F.3d 1193 (10th Cir. 2014).
5
23
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history and tradition, and the undisputable fact that same-sex

marriage was unknown in the United States prior to 2003, the
district courts determination that there is a fundamental right to
same-sex marriage must be rejected.
To date, the Supreme Court has recognized a fundamental
right to marriage only in a traditional opposite-sex context. Since
this Nations inception, that right has been regulated and limited
by the states. All fifty states have regulated and continue to
regulate prohibitions on marriage based on polygamy and degree
of blood relation. APP 182-83, 269-75. State restrictions on
polygamy, for example, are clearly foundational to the United
States, as those restrictions were a condition on the statehood of
Arizona, New Mexico, Oklahoma and Utah. Romer v. Evans, 517
U.S. 620, 648-50 (1996) (Scalia, J., dissenting). South Dakota,
from territorial days, has consistently limited the fundamental
right to marriage, prohibiting bigamy and incest, establishing
restrictions on age and degree of blood relation, and limiting
marriage partners to a male and female. These are the limitations
on marriage that are deeply rooted in this Nations history and
24
Page: 33
tradition and therefore the controlling parameters of the

fundamental right to marriage under Glucksberg.
The district courts reliance on Loving v. Virginia, 388 U.S. 1
(1967), to find a broader fundamental right is misplaced. See
DeBoer, 772 F.3d at 412 (When Loving and its progeny used the
word marriage, they did not redefine the term but accepted its
traditional meaning.). Loving was a criminal proceeding brought
against a married inter-racial couple. The state law challenged in
that case criminalized cohabitating as man and wife by any
white person and any colored person. The Courts opinion
focused on whether the racial classification involved a suspect
classification that is subjected to strict scrutiny violated the
Equal Protection and Due Process Clauses. Loving, 388 U.S. at 712. Loving is not applicable here because it addressed a racial
restriction, not the fundamental right to marriage.
Indeed, five years after Loving, the Supreme Court dismissed
Baker, which involved a same-sex couples citation of Loving as
authority to support a fundamental right to same-sex marriage.
Baker, 409 U.S. 810 (1972). Any argument that Loving established
a fundamental right to choose ones spouse, or that the
25
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fundamental right to marriage included a right to same-sex

marriage, was firmly answered by the Supreme Court when it
dismissed Baker for want of a substantial federal question.
The district courts reliance on Zablocki v. Redhail, 434 U.S.
374 (1978) and Turner v. Safley, 482 U.S. 78 (1987) is similarly
misplaced. Zablocki concerned the issue of whether a state could
prohibit a person with non-custodial child support obligations
from marrying without court permission. Zablocki, 434 U.S. at
375. Turner addressed the constitutionality of a prison marriage
regulation prohibiting inmates from marrying without the prison
superintendents approval. Turner, 482 U.S. at 82. The issue of
whether the fundamental right to marry included the right to
marry a person of the same sex was not before the Court in either
case. These decisions, like Loving, provide no legal support for the
conclusion that same-sex marriage is a fundamental right.
Nor did Windsor hold that there was a fundamental right to
same-sex marriage. Windsor, 133 S.Ct. 2675. The Windsor
holding was based on federalism, not on the existence of a
fundamental right to same-sex marriage. Windsor specifically
acknowledged the fundamental nature of marriage, in fact, was its
26
Page: 35
heterosexual nature: The limitation of lawful marriage to

heterosexual couples . . . for centuries had been deemed both
necessary and fundamental[.] Windsor, 133 S.Ct. at 2689
(emphasis added). Accordingly, the district courts reliance on the
aforementioned Supreme Court case law to support the alleged
fundamental right to same-sex marriage is misplaced and
necessitates reversal by this Court.
IV
The district court erred in holding that South Dakota laws
impermissibly deny Plaintiffs alleged right to same-sex
marriage in violation of the Due Process and Equal
Protection Clauses of the Fourteenth Amendment.
Equal Protection
The district court erred in applying heightened scrutiny to
conclude that South Dakota marriage laws violate the Equal
Protection Clause.6 In addition to finding a fundamental right, the
district court relied on Windsor to boot strap its holding of a
The following argument applies both to the States marriage laws,

and to State law that prohibits the recognition of same-sex
marriages performed in another state. See DeBoer, 772 F.3d at
418 (If it is constitutional for a State to define marriage as a
relationship between a man and a woman, it is also constitutional
for the state to stand by that definition with respect to couples
married in other States or countries.).
6
27
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fundamental right to marriage by same-sex individuals in a

manner that is unsupported by Windsor and contrary to this
Courts decision in Bruning. The district court stated: This court
believes that Windsor recognizes that the sexual and moral choices
of homosexual citizens enjoy constitutional protection. APP 286.
There is no language in Windsor, however, to support the
conclusion the Court applied any type of heightened scrutiny to
conclude the federal law was unconstitutional. See Windsor, 133
S.Ct. 2675 (2013).
The district court erroneously concluded that a claim of
sexual orientation discrimination enjoys heightened scrutiny.
Such reasoning defies Bruning wherein this Court held that a class
based upon sexual orientation was not a suspect class requiring
heightened scrutiny review. Bruning, 455 F.3d at 866-67. Samesex couples do constitute a class for purposes of equal protection
review, but not a suspect class requiring heightened scrutiny.
Under Bruning, Plaintiffs challenge to South Dakota marriage laws
are reviewed under the rational basis standard. Id.
Bruning addressed a constitutional amendment almost
identical to the South Dakota constitutional amendment
28
Page: 37
challenged here, and held that rational basis was satisfied.

Bruning, 455 F.3d at 867-68. As outlined below, South Dakota
marriage laws withstand judicial scrutiny for the same reasons
this Court upheld the Nebraska Constitutional provisions in
Bruning.
The Equal Protection Clause does not forbid classifications.
It simply keeps governmental decision makers from treating
differently persons who are in all relevant respects alike.
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). To demonstrate a
violation of equal protection, a party must show that the
challenged laws treat them differently than other persons who are
in all relevant respects similarly situated. Iowa Right to Life
Comm., Inc. v. Tooker, 717 F.3d 576, 605 (8th Cir. 2013); Schmidt
v. Des Moines Pub. Schs., 655 F.3d 811, 820 (8th Cir. 2011).
A States marriage laws rest[] firmly within a States
constitutional prerogatives and are entitled to particular
deference. Gregory, 501 U.S. at 462; Sosna v. Iowa, 419 U.S. 393,
404 (1975); Dandridge v. Williams, 397 U.S. 471, 486 (1970);
Bruning, 455 F.3d at 867. They must be upheld . . . if there is
any reasonably conceivable state of facts that could provide a
29
Page: 38
rational basis for the classification. F.C.C. v. Beach Commcns,

Inc., 508 U.S. 307, 313 (1993); City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985). Even if South Dakota marriage
laws are somewhat over- or under- inclusive, there is a conceivable
rational basis to support them. See City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 48 (1986). Ultimately, a states
marriage laws must be sustained if the classification drawn by the
statute is rationally related to a legitimate state interest. City of
Cleburne, 473 U.S. at 440.
The South Dakota Legislature and electorate had a rational
basis related to a legitimate state interest for its long-standing
eligibility limitation on the issuance of State marriage laws: the
encouragement of heterosexual couples the couples most likely
to have children to accept the obligations and liabilities
associated with state marriage laws so that children, and
particularly un-planned children, are not abandoned and required
to be supported by the public fisc. In addition, it is both legitimate
and rational for the Legislature and electorate to want to wait to
analyze any impacts occurring in states that have authorized
same-sex marriage before South Dakota adopts a fundamental
30
Page: 39
change to society that may impact the public fisc by expanding the
number of couples eligible for marriage benefits.
There can be no question that heterosexual couples, as a
matter of biology, are the class that is likely to produce children,
including un-planned children, while homosexual couples are not.
The State has a legitimate interest ensuring that children,
particularly un-planned children, are provided for without resort to
the public fisc. It is rational for the Legislature and electorate to
believe it is important to encourage marriage for opposite-sex
couples, who can produce children by accident. Bruning
recognized the above interest was rationally based, stating that
Nebraskas argument concerning the rational basis for its
limitation of marriage to opposite-sex couples is also based on a
responsible procreation theory that justifies conferring the
inducements or marital recognition and benefits on opposite sex
couples, who can otherwise produce children by accident, but not
on same-sex couples, who cannot. 455 F.3d at 867-68 (citations
omitted).
The recent DeBoer decision by the Sixth Circuit supports
Brunings analysis:
31
Page: 40
By creating a status (marriage) and by subsidizing it (e.g.

with tax-filing privileges and deductions), the States
create an incentive for two people who procreate together
to stay together for purposes of rearing off-spring. That
does not convict the States of irrationality, only of
awareness of the biological reality that couples of the
same sex do not have children in the same way as
couples of opposite sexes and that couples of the same
sex do not run the risk of unintended offspring.
DeBoer, 772 F.3d at 405; see also Robicheaux, 2 F.Supp.3d at 919.
While some persons marry after child-bearing years, or enter
into a marriage without intending to have children, the State does
not have to draw perfect lines in creating a class. See Armour v.
City of Indianapolis, 132 S.Ct. 2073, 2083 (2012) ([T]he
Constitution does not require the [State] to draw the perfect line
nor even to draw a line superior to some other line it might have
drawn. It requires only that the line actually drawn be a rational
line.); Heller v. Doe by Doe, 509 U.S. 312, 321 (1993) (stating that
courts are compelled under rational-basis review to accept a
legislatures generalizations even when there is an imperfect fit
between means and ends). These minority situations do not, in
and of themselves, mean that the legislative generalization is
improper. The classification of heterosexual couples, the couples
most likely to procreate, promotes the States goal of preventing
32
Page: 41
children from being abandoned to the State. The inclusion of

homosexual couples, who are far less likely to have un-planned
children, does not. The fact that the States marriage benefits are
selectively provided only to heterosexual couples, therefore, does
not violate the Equal Protection Clause.
The State Legislature and electorate could also rationally
believe same-sex marriage would fundamentally alter a basic
societal structure, would have an impact on the public fisc by
extending state marriage benefits to a new group of couples, and
that change should proceed with caution. The public institution of
marriage is one of the most important to our society. Williams v.
North Carolina, 317 U.S. at 303. The State is rationally justified in
proceeding with caution before making a change to such a
fundamental institution, particularly when it would impact the
public fisc in an unknown manner. Indeed, preserving the
traditional institution of marriage is itself a legitimate state
interest. Lawrence v. Texas, 539 U.S. 558, 585 (2003) (OConnor,
J., concurring).
A cautious approach to making such a fundamental change
to the definition of marriage is therefore not irrational. Same-sex
33
Page: 42
marriage is a new concept and there is a lack of data regarding the

real-life impacts of such a change on society. It was only a decade
ago when Massachusetts became the first state to recognize samesex marriage. The long-term impacts of this fundamental change
to a foundational structure of society cannot be ascertained in this
short time-frame. Robicheaux, 2 F.Supp.3d 910, 925-26; see also
DeBoer, 772 F.3d at 406 (stating that [o]ne of the key insights of
federalism is that it permits laboratories of experimentation). The
expansion of the definition of marriage is a fundamental societal
policy change that should not be determined by the courts.
Kitchen v. Herbert, 755 F.3d 1193, 1239 (10th Cir. 2014) (Kelly, J.,
dissenting). This policy determination should be made by the
citizens of the State through the democratic process. Burson v.
Freeman, 504 U.S. 191, 214 (1992) (Kennedy, J. concurring)
(Voting is one of the most fundamental and cherished liberties in
our democratic system of government.); Schuette v. BAMN, 134
S.Ct. 1623, 1637 (2014) (It is demeaning to the democratic
process to presume that the voters are not capable of deciding an
issue of this sensitivity on decent and rational grounds.).
34
Page: 43
The 2006 amendment to the South Dakota Constitution (Art.

21, 9) was approved only by 52% of the States electorate, and
significant societal changes have occurred elsewhere since that
time. Expansion of the definition of marriage is exactly the kind of
fundamental policy issue that states should be allowed to innovate
and experiment with through the democratic process, rather than
placing the matter outside the arena of public debate and
legislative action through judicial action. See, e.g., Gregory, 501
U.S. at 457; Schuette, 134 S.Ct. at 1637; Glucksberg, 521 U.S. at
720. Because South Dakotas marriage laws are rationally related
to a legitimate state interest under Bruning, they withstand
rational basis review and do not violate the Equal Protection
Clause of the Fourteenth Amendment.
Finally, Plaintiffs have submitted no facts to support the
claim that animus was the basis for South Dakotas marriage laws,
recent or historical. While the withdrawal of rights raises a
question of animus under Romer, 517 U.S. at 627 (the amendment
at issue withdraws from homosexuals . . . specific legal
protection[s] that they previously enjoyed), amendments to South
Dakotas marriage laws in 1996 and 2006 sought to maintain the
35
Page: 44
status quo. Changes in South Dakota marriage laws have not

removed rights previously enjoyed by same-sex couples, but
rather, adopted a long existing, widely held social norm already
reflected in state law. DeBoer, 772 F.3d at 408.
Due Process
The Due Process Clause of the Fourteenth Amendment
provides that [n]o State . . . shall . . . deprive any person of life,
liberty, or property, without due process of law. U.S. Const.
Amend. XIV, 1. There is a substantive component to the due
process clause that protects individual liberty against certain
government actions regardless of the fairness of the procedures
used to implement them. Schmidt v. Des Moines Public Schs., 655
F.3d at 816 (quoting Collins v. City of Harker Heights, 503 U.S.
115, 125 (1992)). To establish a substantive due process violation,
Plaintiffs must demonstrate that a challenged state law violates a
fundamental right that is deeply rooted in the Nations history
and tradition and is implicit in the concept of ordered liberty, and
that it is conscience-shocking, or outrageous or truly irrational.
Schmidt, 655 F.3d at 816; Christiansen v. West Branch Cmty. Sch.
Dist., 674 F.3d 927, 937 (8th Cir. 2012). Legislation infringing
36
Page: 45
upon a fundamental right is subject to strict scrutiny and a state

must demonstrate that the challenged law is narrowly tailored to
serve a compelling state interest. Gallagher v. City of Clayton, 699
F.3d 1013, 1017 (8th Cir. 2012) (quoting Reno v. Flores, 507 U.S.
292, 302 (1993)).
If a state law does not infringe upon a fundamental right, the
question is only whether the statute rationally advances some
legitimate government purpose. Weems v. Little Rock Police Dept,
453 F.3d 1010, 1015 (8th Cir. 2006). Importantly, [a] rational
basis that survives equal protection scrutiny also satisfies
substantive due process analysis. Kansas City Taxi Cab Drivers
Assn v. City of Kansas City, Mo., 742 F.3d 807, 809 (8th Cir. 2013)
(citation omitted).
Because there is no fundamental right to same-sex marriage,
the only substantive due process issue is whether the States
marriage laws rationally advance some legitimate government
purpose. For the same reasons that South Dakota marriage laws
meet the rational basis test for equal protection scrutiny, the
States marriage laws also rationally advance a legitimate
government purpose. See Kansas City Taxi Cab, 742 F.3d at 809.
37
Page: 46
CONCLUSION
Based upon the foregoing arguments and authorities,
Defendants respectfully request this Court reverse the district
court and declare South Dakota marriage laws constitutional.
Respectfully submitted,
For State Defendants-Appellants Daugaard, Jackley, MalsamRysdon, and Jones
/s/ Jeffrey P. Hallem
Jeffrey P. Hallem
Ellie J. Bailey
Assistant Attorneys General
1302 E. Highway 14, Suite 1
Pierre, SD 57501-8501
Telephone: (605) 773-3215
For County Defendant Sherman
/s/ Robert B. Anderson
Robert B. Anderson
Justin L. Bell
503 South Pierre Street
PO Box 160
Pierre, SD 57506
Phone: (605) 224-8803
38
Page: 47
CERTIFICATE OF COMPLIANCE
1.
I certify that the Appellants Brief is within the limitation
provided for in Rule 32(a)(7) using bookman old style typeface in

14 point type. Appellants Brief contains 6,520 words.
2.
I certify that the word processing software used to
prepare this brief is Microsoft Word 2010, and it is herewith

submitted in PDF format.
3.
I certify that the brief submitted herein has been
scanned for viruses and that the brief is, to the best of my
knowledge and belief, virus free.
Dated this 27th day of February, 2015.
Jeffrey P. Hallem
Assistant Attorney General
39
Page: 48
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 27th day of
February, 2015, a true and correct copy of Appellants Brief was
submitted to the Eighth Circuit Court of Appeals for review.

Jeffrey P. Hallem
Assistant Attorney General
40
Page: 49

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Appellate Case: 15-1186

Date Filed: 03/02/2015 Entry ID: 4249370

SUMMARY OF THE CASE AND ORAL ARGUMENT REQUEST

Date Filed: 03/02/2015 Entry ID: 4249370

The district court erred in asserting jurisdiction over

The district court erred in failing to follow binding

The district court erred in concluding that Plaintiffs have a

The district court erred in holding that South Dakota laws

Date Filed: 03/02/2015 Entry ID: 4249370

Date Filed: 03/02/2015 Entry ID: 4249370

Date Filed: 03/02/2015 Entry ID: 4249370

Dandridge v. Williams, 397 U.S. 471 (1970) .................................. 29

Date Filed: 03/02/2015 Entry ID: 4249370

Date Filed: 03/02/2015 Entry ID: 4249370

Schmidt v. Des Moines Pub. Schs., 655 F.3d 811

Date Filed: 03/02/2015 Entry ID: 4249370

SDCL 25-1-38 ............................................................................ 5, 8

Date Filed: 03/02/2015 Entry ID: 4249370

Date Filed: 03/02/2015 Entry ID: 4249370

timely Notice of Appeal on January 26, 2015. APP 306-07. This

Whether the district court erred in asserting jurisdiction

Whether the district court erred in concluding it was not

Date Filed: 03/02/2015 Entry ID: 4249370

Citizens for Equal Protection v. Bruning, 455 F.3d 859

Whether the district court erred in concluding that

Whether the district court erred in holding that South

Date Filed: 03/02/2015 Entry ID: 4249370

Dakota marriage laws deprived them of their constitutional rights

Dennis Daugaard is South Dakota Governor. Marty Jackley is

Date Filed: 03/02/2015 Entry ID: 4249370

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

Date Filed: 03/02/2015 Entry ID: 4249370

The rulings presented for this Courts review include: the

Date Filed: 03/02/2015 Entry ID: 4249370

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

Date Filed: 03/02/2015 Entry ID: 4249370

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

Date Filed: 03/02/2015 Entry ID: 4249370

SUMMARY OF THE ARGUMENT

Date Filed: 03/02/2015 Entry ID: 4249370

2008) (We review constitutional issues de novo.). The district

Date Filed: 03/02/2015 Entry ID: 4249370

question jurisdiction. Therefore, the district court erred in

Date Filed: 03/02/2015 Entry ID: 4249370

to prescribe the conditions upon which the marriage relation

Date Filed: 03/02/2015 Entry ID: 4249370

Date Filed: 03/02/2015 Entry ID: 4249370

[W]hile rare instances arise in which it is necessary to

Date Filed: 03/02/2015 Entry ID: 4249370

Date Filed: 03/02/2015 Entry ID: 4249370

Bruning addressed an equal protection challenge to a

Date Filed: 03/02/2015 Entry ID: 4249370

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

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references to Baker and address subsequent doctrinal

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the subject of marriage and divorce. Windsor, 133 S.Ct. at 2691

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While some federal courts have used Windsor to make new

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

Date Filed: 03/02/2015 Entry ID: 4249370

15-1186 South Dakota's Opening Brief

15-1186 South Dakota's Opening Brief