ROBERT C. CHAMBERS, Chief Judge.
This case is one of many proceeding through the federal courts to challenge same-sex marriage bans in the wake of the United States Supreme Court decision in Windsor, decided just over one year ago. As nearly every decided case has concluded that the marriage bans violate the fundamental right of individuals to marry, the pace of this litigation accelerated dramatically in the past few months and culminated with the Supreme Court's denial of appeals from federal circuit court decisions finding these marriage bans unconstitutional. This Court explicitly acknowledged the likely binding result of the case which arose in this Circuit, discussed in more detail below, and stayed the proceedings here pending its resolution. Now, that binding precedent and the acceptance by key state and county officials of its effect provide a clear blueprint for this Court's ruling.
The right to marry is a fundamental right, giving every individual the opportunity to exercise choice in this important relationship. As such, the government must not interfere in that choice unless it demonstrates compelling state interests and carefully tailors its restrictions to protect
For the reasons stated below, Plaintiff's Motion for Summary Judgment (ECF No. 40) is
Plaintiffs in this case seek declaratory relief overturning West Virginia Code Sections 48-2-104 and 48-2-401, as well as "any other sources of West Virginia law that exclude same-sex couples from marriage" (collectively called the "marriage ban"). ECF No. 8. Plaintiffs also seek an injunction prohibiting Defendant Clerks from enforcing the marriage ban.
West Virginia Code Section 48-2-104 lists the requirements for marriage license applications. Among other requirements, "[t]he application for a marriage license must contain a statement of the full names of both the female and the male parties" and "must contain the following statement: `Marriage is designed to be a loving and lifelong union between a woman and a man.'" W. Va.Code § 48-2-104(a) & (c) (2012). Section 48-2-401 governs persons authorized to perform marriages and states in part, "Celebration or solemnization of a marriage means the performance of the formal act or ceremony by which a man and woman contract marriage and assume the status of husband and wife." W. Va.Code § 48-2-401 (2001).
Plaintiffs are six gay and lesbian West Virginians, comprising three same-sex adult couples: Casie Jo McGee and Sarah Elizabeth Adkins; Justin Murdock and William Glavaris; and Nancy Elizabeth Michael and Jane Louise Fenton, and A.S.M., the minor child of Ms. Michael and Ms. Fenton. Plaintiffs brought this action pursuant to 42 U.S.C. § 1983 against Karen S. Cole, in her official capacity as Cabell County Clerk, and Vera J. McCormick, in her official capacity as Kanawha County Clerk. ECF No. 8. Defendant Clerks are responsible for issuing marriage licenses and recording marriages that take place in jurisdictions outside of West Virginia. Their responsibilities include ensuring that marriage licenses and records comply with West Virginia law, including the marriage ban. Each of the same-sex couples sought a marriage license from one of the defendant clerks, and each was initially denied. Plaintiffs contend that Defendants are violating Plaintiffs' due process rights and equal protection rights, as guaranteed by the Fourteenth Amendment to the United States Constitution. Since the filing of the pending motions, the State of West Virginia ("the State") has directed county clerks to issue marriage licenses to same-sex couples. ECF No. 134. West Virginia's marriage ban, however, remains in place. Plaintiffs accordingly request that this
The State intervened as a defendant, pursuant to 28 U.S.C. § 2403(b) and Federal Rules of Civil Procedure 5.1(c) and 24(a), to defend the constitutionality of the marriage ban. ECF No. 25.
The defendant clerks each filed a motion to dismiss. This Court addressed their motions in part in a previous order, but reserved ruling on their motions as to the second prong of Burford abstention. ECF No. 56. The State has also filed a motion to dismiss. Plaintiffs, Defendants, and the State have each filed a motion for summary judgment. The State has also filed a motion to stay and to schedule oral argument on the threshold issues in this case, to which Plaintiffs responded with a cross-motion to lift the stay and enter judgment. Plaintiffs later filed another motion and an amended motion to lift the stay and enter judgment.
In Section II, the Court discusses the State's motion to dismiss and the clerks' respective motions to dismiss. Section III addresses the parties' motions for summary judgment. Section IV briefly examines the State's motion to stay and schedule oral argument, as well as Plaintiff's responsive cross-motion. Finally, Section V discusses Plaintiffs' most recent motion and amended motion to lift the stay and enter judgment.
A motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure raises the fundamental question of whether a court is competent to hear and adjudicate the claims brought before it. Fed.R.Civ.P. 12(b)(1). It is axiomatic that a court must have subject matter jurisdiction over a controversy before it can render any decision on the merits. Adkins v. United States, 923 F.Supp.2d 853, 856 (S.D.W.Va.2013). If a Court does not have subject matter jurisdiction over a case, the case must be dismissed. See id.
Challenges to jurisdiction under Rule 12(b)(1) may be raised in two distinct ways: "facial attacks" and "factual attacks." Thigpen v. United States, 800 F.2d 393, 401 n. 15 (4th Cir.1986), rejected on other grounds, Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). A "facial attack" questions whether the allegations in the complaint are sufficient to sustain the court's jurisdiction. Id. If a "facial attack" is made, the court must accept the allegations in the complaint as true and decide if the complaint is sufficient to confer subject matter jurisdiction. Id.
On the other hand, a "factual attack" challenges the truthfulness of the factual allegations in the complaint upon which subject matter jurisdiction is based. In this situation, a "district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982); Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir.1987)).
Here, the State's motion to dismiss raises a facial attack. The State argues that Plaintiffs do not have Article III standing, and therefore this Court does not have jurisdiction, because Plaintiffs have failed to sue the defendants to whom their injury can be properly traced. ECF
The State maintains that Plaintiffs do not have standing because they did not sue the State Registrar and Secretary of State. ECF No. 86. The State Registrar is exclusively responsible for creating marriage license applications and, the State claims, is therefore the only official tasked with carrying out West Virginia Code § 48-2-104. ECF No. 86. Likewise, the Secretary of State is solely responsible for determining which religious celebrants may solemnize marriages in West Virginia. ECF No. 86. County clerks, the State explains, are only responsible for accepting applications for marriage licenses and issuing those licenses. ECF No. 86.
Plaintiffs here chose to sue the county clerks of Cabell and Kanawha counties because those clerks refused to issue marriage licenses to the same-sex couple plaintiffs. ECF No. 8. A marriage license is necessary to legally marry under the laws of West Virginia. W. Va.Code § 48-2-101 (2001). By refusing to issue licenses, the clerks themselves directly took action which the plaintiffs claim violated their rights under the Fourteenth Amendment. ECF No. 8. The denial of marriage licenses is the precise injury for which the plaintiffs seek redress in this case. ECF No. 8. Plaintiffs do not seek an injunction requiring the State Registrar to change the marriage forms in West Virginia, nor do they seek to compel the Secretary of State to change the manner in which religious celebrants are authorized to perform marriages in the State. ECF No. 8. What the plaintiffs request is an injunction requiring the county clerks to issue marriage licenses to same-sex couples. ECF No. 8. This is an act that can be taken by the county clerks, as they are the officials responsible for issuing licenses in their respective counties. See ECF No. 86. Furthermore, this is an act that will directly redress the injury complained of in this case, that is, the denial of marriage licenses to same-sex couples. See ECF No. 8. See Bostic v. Schaefer, 760 F.3d 352, 371 (4th Cir.2014) ("[L]icense denial constitutes an injury for standing purposes ... [Plaintiffs] can trace this denial to [Clerk's] enforcement of the allegedly unconstitutional Virginia Marriage Laws, and declaring those laws unconstitutional and enjoining their enforcement would redress [Plaintiffs'] injuries.").
The State Registrar may be the only official authorized to alter West Virginia's marriage forms, but other courts have afforded injunctive relief requiring officials to interpret existing laws and forms in a way that is constitutional, rather than requiring the officials to physically change their contents. See Califano v. Westcott, 443 U.S. 76, 89-90, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) (affirming district court's decision to extend federal benefits statute to cover previously excluded class because statute, as originally enacted, violated equal protection clauses); Griego v. Oliver, 316 P.3d 865, 889 (N.M.2013) ("[In]
Moreover, the State has not demonstrated that it is necessary to join either the State Registrar or the Secretary of State in order to award declaratory relief. The State maintains that the doctrine of sovereign immunity under the Eleventh Amendment bars declaratory relief in this case. ECF No. 86. Sovereign immunity protects the State from direct suit and from actions seeking retrospective, monetary relief. See Edelman v. Jordan, 415 U.S. 651, 676, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Here, the plaintiffs did not bring direct action against the State, nor do they seek monetary or injunctive relief against the State. Instead, the State chose to intervene in this action specifically to defend the constitutionality of West Virginia's marriage ban. By intervening to protect this interest, the State is subject to any declaration by this Court that the ban is unconstitutional.
Defendant Clerks have each filed a motion to dismiss. ECF No. 26; ECF No. 31. They also raise a facial attack, arguing that the Court should abstain from exercising jurisdiction in this case under the Burford abstention doctrine. As the Defendants' arguments substantially overlap, the Court will address their motions to dismiss together.
There is only a "narrow range of circumstances in which Burford can justify the dismissal of a federal action." Quackenbush
The second ground for Burford abstention exists where federal jurisdiction would interrupt the State's interest in regulatory uniformity. See NOPSI, 491 U.S. at 362, 109 S.Ct. 2506. Whether to abstain under Burford is an "equitable decision [that] balances the strong federal interest in having certain classes of cases, and certain federal rights, adjudicated in federal court, against the State's interests in maintaining `uniformity in the treatment of an essentially local problem.'" Quackenbush, 517 U.S. at 728, 116 S.Ct. 1712 (quoting NOPSI, 491 U.S. at 362, 109 S.Ct. 2506). Burford abstention may apply where the Court determines that "the State's interests are paramount and that a dispute would best be adjudicated in a state forum." Id. at 728, 116 S.Ct. 1712. Where, as here, the only question involved is one of federal law, Burford abstention is generally inappropriate. See Martin v. Stewart, 499 F.3d 360, 368 (4th Cir.2007) (holding that federal courts generally may not abstain from deciding purely federal issues); Harper v. Pub. Serv. Comm'n of West Virginia, 396 F.3d 348 (4th Cir.2005) (holding that federal jurisdiction would not disrupt state policy because case presented federal question under the Commerce Clause).
Here, Defendants argue that if this court awards Plaintiffs their requested relief, only the clerks of Cabell and Kanawha counties will be enjoined from refusing to issue marriage licenses to same-sex couples. ECF No. 27; ECF No. 31. This, Defendants argue, would disrupt uniformity among the counties of West Virginia. The Court disagrees. First, Plaintiffs request both injunctive and declaratory relief. A declaration by this court that the marriage ban is unconstitutional would strike down the ban entirely, not just as applied to the defendant clerks. Even if declaratory relief cannot extend beyond the named defendants, the State has intervened in this case to defend the constitutionality of the marriage ban. The State has had a full and fair opportunity to litigate the constitutionality of the marriage ban in this case. Accordingly, under the doctrine of res judicata, a declaratory judgment from this court would preclude the State from relitigating the issue in future proceedings. See Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) ("A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action."). In other words, the ruling would create uniformity because the State would be precluded from defending the constitutionality
Defendant McCormick and the State also maintain that abstention is proper pursuant to Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). ECF No. 27; ECF No. 68. As this Court explained in a previous order, Baker is not binding on this case. ECF No. 56. Subsequent to that order, the Fourth Circuit in Bostic held: "In light of the Supreme Court's apparent abandonment of Baker and the significant doctrinal developments that occurred after the Court issued its summary dismissal in that case, we decline to view Baker as binding precedent." Bostic, 760 F.3d at 375. Accordingly, Baker does not require abstention in this case. The State's motion to dismiss and Defendants' respective motions to dismiss are thus denied.
To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court will not "weigh the evidence and determine the truth of the matter." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere "scintilla of evidence" in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The facts here are not in dispute. Each party has moved for summary judgment. ECF No. 40; ECF No. 62; ECF No. 66. It is thus the task of this Court to apply the law to the undisputed facts and determine which party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a).
Defendants filed a joint motion for summary judgment raising five arguments. ECF No. 62. First, Defendants argue that West Virginia law and the duties of their office require them to deny marriage licenses to same-sex couples. ECF No. 62. This is no defense to a constitutional challenge to that state law, which must yield to the supremacy of constitutional protections. As the governor of West Virginia has now directed all county clerks to issue marriage licenses to same-sex couples, and Defendants have complied with that directive, this argument is no longer supported. See ECF No. 134. Moreover, as discussed above, it is precisely because their actions were in compliance with the challenged marriage ban that the county clerks are the proper defendants in this action. See id. This argument is thus without merit.
Second, Defendants argue that Plaintiffs have failed to join two necessary parties, the State Registrar and Secretary of State. Although Defendants phrase their arguments in terms of Federal Rule of Civil Procedure 19, rather than Article III, the Court's discussion of the proper defendants in this case, outlined above in response to the State's motion to dismiss, is equally applicable here. The State Registrar and Secretary of State need not be joined for this Court to afford Plaintiffs their requested relief.
Third, Defendants, citing United States v. Windsor, ___ U.S. ___, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), claim that striking down West Virginia's marriage ban would disrupt the balance between state and federal power by interfering with the State's authority to regulate marriage under the U.S. Constitution. ECF No. 62. Although this Court agrees that the power to regulate marriage is reserved to the states, Plaintiffs here raise a genuine issue of federal law: whether West Virginia's marriage ban violates the Fourteenth Amendment of the U.S. Constitution. As the court in Bostic explained: "Windsor does not teach us that federalism principles
Fourth, Defendants claim that Baker v. Nelson controls this case and defeats Plaintiffs' constitutional claims. As explained above, this Court and the Fourth Circuit have determined that Baker is not binding. Finally, Defendants argue that, should this Court reach the merits, West Virginia's marriage ban does not violate the Due Process or Equal Protection Clauses of the Fourteenth Amendment. This argument was also raised by the State in its motion for summary judgment and is discussed in the following section.
In their motion for summary judgment, Plaintiffs contend that that West Virginia's marriage ban is unconstitutional on its face. ECF No. 41. Plaintiffs argue that the ban violates their fundamental rights under the Due Process Clause of the Fourteenth Amendment, and discriminates based on sexual orientation, in violation of the Equal Protection Clause of the Fourteenth Amendment. ECF No. 41.
The State responded and filed a cross-motion for summary judgment, arguing that it is entitled to judgment as a matter of law on three grounds. First, the State argues that Plaintiffs' failure to join the State Registrar and Secretary of State precludes this Court from granting them full relief under Federal Rule of Civil Procedure 19. ECF No. 68. Second, the State contends that Baker v. Nelson controls this case. ECF No. 68. Third, the State maintains that West Virginia's marriage ban is constitutional. ECF No. 68. As explained in the preceding sections, the first two arguments are without merit.
The State's third argument, that West Virginia's marriage ban does not violate the Fourteenth Amendment, is unavailing in light of the Fourth Circuit's decision in Bostic v. Schaefer. In Bostic, two same-sex couples challenged Virginia's marriage ban. Bostic, 760 F.3d at 367. Like West Virginia's ban, Virginia law defined marriage as between one man and one woman, and refused to recognize as valid any marriage between persons of the same sex. See id. at 368. The plaintiffs in Bostic argued that Virginia's marriage ban violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id. at 369. The court began its analysis by determining the applicable standard of scrutiny, noting that "[u]nder both the Due Process and Equal Protection Clauses, interference with a fundamental right warrants the application of strict scrutiny." Id. at 375. The court held that marriage is a fundamental right and that "the fundamental right to marry encompasses the right to same-sex marriage." Id. at 376. Accordingly, the court held that strict scrutiny applies whenever a law "significantly interfere[s]" with the right of same-sex couples to marry. Id. at 377. Virginia's ban on same-sex marriage "unquestionably" met this test, thus the court applied strict scrutiny to determine whether the ban violated the Fourteenth Amendment. Id.
Under strict scrutiny, a law can survive only if it is justified by a compelling
The holding in Bostic controls this case.
West Virginia asserts two interests in banning same-sex marriage: (1) an "interest in expanding gay rights incrementally to avoid disruptive or unforeseen consequences from an abrupt change" and (2) "ameliorating a unique consequence of opposite-sex intercourse," that is, the conception of children. ECF No. 68. The State also notes that the West Virginia legislature "was not motivated by a bare desire to harm homosexuals" when it enacted the marriage ban. ECF No. 68. The State's asserted interests fail for several reasons.
Even if the asserted interests do represent the actual objectives that the State sought to achieve by enacting the marriage ban, these interests cannot survive strict scrutiny. The State's first interest is avoiding an "abrupt" change to state policy. This interest is not compelling under Bostic. In Bostic, the court held that "[p]reserving the historical and traditional status quo" is not a compelling state interest. Bostic, 760 F.3d at 380. Furthermore, the court explained that legalizing same-sex marriage will not destabilize the institution of marriage. Id. at 381.
To the extent that West Virginia's interest goes beyond preserving tradition and the institution of marriage, it is still not compelling. The State's laws directly violate the due process and equal protection rights of same-sex couples. The fact that overturning these laws may cause an "abrupt" change does not mean that the laws must not be overturned. Watershed decisions under the equal protection and due process clauses have often brought sudden change. In Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), for example, the Supreme Court struck down Virginia's anti-miscegenation statute. Loving, 388 U.S. at 12, 87 S.Ct. 1817. At the time, sixteen other states had similar laws, and penalties for miscegenation had been "common in Virginia since the colonial period." Id. at 6, 87 S.Ct. 1817. The Court's decision had the potential to abruptly change the regulation of marriage in Virginia and fifteen other states. See id. at 12, 87 S.Ct. 1817. Nevertheless, the Court invalidated the law, concluding that it could not stand because "restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause" and because "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Id. Likewise, restricting the freedom to marry based on sexual orientation violates the Equal Protection and Due Process Clauses. Bostic, 760 F.3d at 384. That change may come to West Virginia more immediately than the legislature had hoped is not a compelling reason to allow an unconstitutional ban to stand. Moreover,
The State's second proffered interest is in "ameliorating" the issues that arise "[w]hen opposite-sex couples conceive an unplanned child and then shirk responsibility." ECF No. 68. The State argues that opposite-sex and same-sex couples are not similarly situated with respect to marriage because "[o]nly one group can have unplanned pregnancies." ECF No. 68. That characteristic, the State concludes, "is a conceivable explanation for the Legislature's decision to create only for that group an incentive under the law to stay together." ECF No. 68. Although the State may have a compelling interest in promoting opposite-sex marriage and preventing parents from abandoning their responsibilities, the marriage ban is not narrowly tailored to achieve this goal. In Bostic, the defendants asserted a similar interest, arguing that Virginia sought to provide stability to opposite-sex relationships because they can result in unplanned pregnancies. See Bostic, 760 F.3d at 381. The Fourth Circuit held that if this was the marriage ban's purpose, the law was "woefully underinclusive," pointing out that "[s]ame-sex couples are not the only category of couples who cannot reproduce accidentally." Id. The court continued: "Because same-sex couples and infertile opposite-sex couples are similarly situated, the Equal Protection Clause counsels against treating these groups differently." Id. Moreover, the Court explained that "[p]rohibiting same-sex couples from marrying... does not serve Virginia's goal of preventing out-of-wedlock births." Id. at 382. West Virginia's ban is equally underinclusive, making no distinction between opposite-sex couples who can conceive children and those who cannot. See W. Va. Code §§ 48-2-104(a) & (c), 48-2-401. Furthermore, prohibiting same-sex marriage does not, in any manner, prevent opposite-sex couples from having unwanted children and then abandoning their responsibilities with respect to those children. See Bostic, 760 F.3d at 382. The ban is thus not narrowly drawn to achieve the State's asserted interest. As West Virginia's marriage ban is not narrowly tailored to achieve a compelling state interest, it cannot survive strict scrutiny.
For the foregoing reasons, Plaintiffs' motion for summary judgment is
The State previously filed a motion requesting that the Court continue its stay on the merits until after the U.S. Court of
Following the Supreme Court's decision to deny the Petition for a Writ of Certiorari in Bostic, Plaintiffs moved this court to lift the stay and enter judgment. The Court previously lifted the stay (ECF No. 133) and now enters judgment in this case in favor of Plaintiffs. Accordingly, Plaintiffs' motion is
For the reasons state above, Plaintiff's Motion for Summary Judgment (ECF No. 40) is
The Court