McGee v. Cole

• Decision Date: 07 November 2014
• Docket Number: Civil Action No. 3:13–24068.
• Citation: 66 F.Supp.3d 747
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Casie Jo McGEE and Sarah Elizabeth Adkins; Justin Murdock and William Glavaris; and Nancy Elizabeth Michael and Jane Louise Fenton, individually and as next friends of A.S.M., minor child, Plaintiffs, v. Karen S. COLE, in her official capacity as Cabell County Clerk ; and Vera J. McCormick, in her official capacity as Kanawha County Clerk, Defendants, and State of West Virginia, Intervenor Defendant.

66 F.Supp.3d 747

Casie Jo McGEE and Sarah Elizabeth Adkins; Justin Murdock and William Glavaris; and Nancy Elizabeth Michael and Jane Louise Fenton, individually and as next friends of A.S.M., minor child, Plaintiffs

v. Karen S. COLE, in her official capacity as Cabell County Clerk ; and Vera J. McCormick, in her official capacity as Kanawha County Clerk, DefendantsandState of West Virginia, Intervenor Defendant.

Civil Action No. 3:13–24068.

United States District Court, S.D. West Virginia.

Signed Nov. 7, 2014.

Camilla B. Taylor, Lambda Legal Defense & Education Fund, Inc., Chicago, IL, Elizabeth L. Littrell, Lamba Legal Defense & Education Fund, Inc., Atlanta, GA, Heather Foster Kittredge, John H. Tinney, Jr., The Tinney Law Firm, Charleston, WV, Karen L. Loewy, Lambda Legal Defense & Education Fund, Inc., New York, NY, Lindsay C. Harrison, Luke C. Platzer, Paul M. Smith, R. Trent McCotter, Jenner & Block, Washington, DC, for Plaintiffs.

Lee Murray Hall, Sarah A. Walling, Jenkins Fenstermaker, Huntington, WV, Charles R. Bailey, Michael W. Taylor, Bailey & Wyant, Charleston, WV, for Defendants.

Elbert Lin, Julie Marie Blake, Julie A. Warren, Office of the Attorney General, Charleston, WV, for Intervenor Defendant.

MEMORANDUM OPINION AND ORDER

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 those interests. While some may continue to hold a religious or moral objection to same-sex marriage, governmental restrictions on individual rights must be justified by more than simply strongly, or even widely, held opinions or traditions. Use of government power to prohibit the exercise of the right to marry fails to meet this test.

For the reasons stated below, Plaintiff's Motion for Summary Judgment (ECF No. 40) is GRANTED. Defendant Vera J. McCormick's Motion to Dismiss (ECF No. 26), Defendant Karen S. Cole's Motion to Dismiss (ECF No. 31), Defendants' Joint Motion for Summary Judgment (ECF No. 62), the State of West Virginia's Cross–Motion for Summary Judgment (ECF No. 66), and the State of West Virginia's Motion to Dismiss (ECF No. 85) are DENIED. The State of West Virginia's Motion to Continue Merits Stay and to Calendar Oral Argument on Threshold Issues (ECF No. 126) is DENIED in part and DENIED AS MOOT in part. Plaintiff's Cross–Motion to Lift Stay and Enter Judgment (ECF No. 127) is DENIED AS MOOT. Plaintiff's Motion and Amended Motion to Lift Stay and Enter Judgment (ECF No. 131, ECF No. 132) are GRANTED

I. Statement of Facts

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 Court declare the marriage ban unconstitutional and enjoin enforcement of the marriage ban by Defendant Clerks.

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.

II. Motions to Dismiss

A. Legal Standard

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) ).

B. The State's Motion to Dismiss

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 No. 86. Under Article III of the United States Constitution, a plaintiff has standing only if she can demonstrate that her “injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.” Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). Although an injury is not fairly traceable to the defendant if it is...