Haley-Wilson Memo in Opposition to Motion for Preliminary Injunction

November 2, 2014

To read the entire 64-page document click here.
Governor  Nikki  Haley  and  Attorney  General  Alan  Wilson  (Defendants)  oppose Plaintiffs' Motion for Preliminary Injunction for the reasons discussed below.
This suit is barred and should not proceed due to multiple grounds not considered by the Fourth Circuit Court of Appeals' same-sex marriage panel decision.  Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014).  Those grounds include the Rooker-Feldman doctrine, the failure of the 2-1 Bostic panel decision to recognize and apply prior, controlling precedent of the Fourth Circuit, Federalism, the Eleventh Amendment, lack of standing to sue the Governor and the Attorney General as well as other doctrines warranting dismissal including abstention and comity to earlier filed federal proceedings.
Plaintiffs are of the same-sex and seek marriage in this state. They object to a State Supreme Court ruling, discussed infra, that directed the Defendant, Judge Condon, not to issue them  a  marriage  license.    State  law  does  not  allow  or  recognize  same-sex  marriages,  and Plaintiffs challenge those provisions. (Attachment A to this Memorandum).
This case not only presents the question of whether those laws are valid, but also whether this suit should be dismissed due to the above defenses. Although those defenses are dispositive, to the extent necessary, these Defendants argue against the precedent of Bostic on the merits of Plaintiffs' challenge to South Carolina law. Our State's laws are valid under the equal protection and due process clauses. Among other errors, the Bostic panel has misapplied the Loving v. Virginia, 388 U.S. 1 (1967) to alter an element historically inherent in marriage, a union of a man and a woman.
The issue of same-sex marriage has proceeded through the Federal Courts in other states at an unprecedented pace. Centuries of precedent have been swept away in other jurisdictions in the space of only two or three years. Never have the Courts made judgments so quickly about an issue that had received little attention before now. But the legal proceedings are not over. The United States Supreme Court has not weighed in. Many Courts of Appeals have not decided the cases before them or are still in process in the District Courts. Although a 2-1 Panel of the Court of Appeals for the Fourth Circuit in Bostic has overturned Virginia's same-sex marriage ban, that Panel did not consider defenses that are dispositive of the instant case, and the en banc Court of Appeals has not ruled on those defenses or the merits of the constitutional challenges. The defenses named above and discussed, infra, take this case outside of the Bostic precedent and warrant judgment for the Defendants.