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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON DIVISION CASIE JO MCGEE and SARA 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, Defendant-Intervenor. STATE OF WEST VIRGINIAS MOTION TO DISMISS AND INTEGRATED MEMORANDUM OF LAW IN SUPPORT Pursuant to Federal Rule of Civil Procedure 12(b)(1), Defendant-Intervenor the State of West Virginia moves this Court to dismiss all claims with respect to W. Va. Code 48-2-603 for lack of subject matter jurisdiction because Plaintiffs do not have standing to challenge the constitutionality of that statute. The State presents the following argument in support of this motion to intervene: MEMORANDUM IN SUPPORT Plaintiffs in this case contend, among other things, that Section 48-2-603 of the West Virginia Code violates the federal constitution. In that provision, the West Virginia Legislature Civil Action No. 3:13-24068

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determined that same-sex marriages recognized in another State shall not be given effect by this state. W. Va. Code 48-2-603. Plaintiffs allege generically that they are denied the ability to have a valid marriage from another jurisdiction recorded or recognized in West Virginia. Compl. 26. This Court must dismiss Plaintiffs challenge to that statute because they lack standing. The statute causes no concrete and immediate injury to Plaintiffs, who allege only the desire to marry each other in West Virginia and have not alleged that they are or intend to be married in another State. A challenge to a law that does not affect the plaintiff in a personal and individual way and whose invalidation would no more directly and tangibly benefit[] the plaintiff than it does the public at large . . . does not state an Article III case or controversy. Defenders of Wildlife, 504 U.S. 555, 560 & n.1, 573-74 (1991). I. STATUTORY BACKGROUND At issue in this case is the constitutionality of three sections of the West Virginia Code: Sections 48-2-104, 48-2-401, and 48-2-603. These laws reflect the Legislatures determination that the State recognize only marriage between one man and one woman. Each section carries out that determination in a different way. One statute, Section 48-2-603, concerns the legal status in West Virginia of same-sex marriages entered into outside of West Virginia. In this section, the Legislature determined that the State shall not recognize same-sex marriages from other states. It provides: A public act, record or judicial proceeding of any other state, territory, possession or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of the other state, territory, possession, or tribe, or a right or claim arising from such relationship, shall not be given effect by this state. Lujan v.

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W. Va. Code 48-2-603. By its terms, Section 48-2-603 has no legal effect or impact upon same-sex couples who desire only to obtain a marriage license from and be married in the State of West Virginia. In contrast, the other two challenged statutes, Sections 48-2-104 and 48-2-401, govern marriages that take place in West Virginia. First, the Legislature mandated in Section 48-2-104 certain content that the State Registrarwhich is charged by statute with promulgating marriage forms, see W. Va. Code 16-5-5(a)(5), 16-5-34must include on every West Virginia marriage license application. That required content includes a statement of the full names of both the female and the male parties, as well as the statement that Marriage is designed to be a loving and lifelong union between a woman and a man. W. Va. Code 48-2-104.1 Second,

In full, Section 48-2-104 provides: (a) The application for a marriage license must contain a statement of the full names of both the female and the male parties, their social security account numbers, dates of birth, places of birth and residence addresses. The application must state whether or not the persons seeking the license have completed premarital education pursuant to section seven-hundred-one, article two, chapter forty-eight of this code. If the application states that the applicants seeking issuance of the license have completed premarital education, then the applicants must submit a signed and dated certificate of completion issued by the premarital education provider. (b) If either of the parties is a legal alien in the United States of America and has no social security account number, a tourist or visitor visa number or number equivalent to a United States social security account number must be provided. (c) Every application for a marriage license must contain the following statement: Marriage is designed to be a loving and lifelong union between a woman and a man. The laws of this state affirm your right to enter into this marriage and to live within the marriage free from violence and abuse. Neither of you is the property of the other. Physical abuse, sexual abuse, battery and assault of a spouse or other family member, and other provisions of the criminal laws of this state are applicable to spouses and other family members, and these violations are punishable by law.

W. Va. Code 48-2-104. 3

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the Legislature specified in Section 48-2-401 certain requirements relating to persons authorized by the Secretary of State to perform marriage ceremonies in West Virginia. Under that statute, the [c]elebration 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. Id. 48-2-401. II. FACTUAL BACKGROUND On October 1, 2013, Plaintiffs filed a Complaint for Declaratory and Injunctive Relief, challenging the constitutionality of the three West Virginia statutes and naming two county officials as Defendants. (Doc. 8.) According to the Complaint, Plaintiffs are six lesbian and gay West Virginians who comprise three loving and committed same-sex couples, and a child of one of the couples. Compl. 1. Plaintiffs do not seek to represent a class of same-sex couples, married or otherwise. Plaintiffs challenges fall into two categories: laws that prevent same-sex marriage in West Virginia and laws that bar the recognition in West Virginia of same-sex marriages that occurred outside the State. See id. 25, 26. They seek to declare unconstitutional West Virginia law that exclude[s] same-sex couples from marriage, to enjoin state law that exclude[s] same-sex couples from marriage, and to require the county Defendants to accept applications and issue marriage licenses to same-sex couples on the same terms as different-sex couples. Compl. at 28. In addition, they seek to declare unconstitutional state law that prohibits recognition of marriages entered into in another jurisdiction, to enjoin state law that refuse[s] recognition to the marriages of same-sex couples entered into in another jurisdiction, and to require county Defendants to record the valid marriages of same-sex couples from other

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jurisdictions on the same terms as the valid marriages of different-sex couples from other jurisdictions. Id. According to their allegations, each of the three Plaintiff couples is unmarried, lives in West Virginia, and seeks to marry in West Virginia. All allege that, [b]ut for the fact that they are of the same sex, each Plaintiff couple is legally qualified to marry under the laws of West Virginia and wishes to marry in the State. Compl. 21 (emphasis added). Specifically, [e]ach adult Plaintiff is over the age of 18, and no adult Plaintiff is precluded from marriage as a result of having another spouse or being closely related to his or her life partner. Id. As alleged in the Complaint, Plaintiffs McGee and Adkins live in Huntington, dream[] of being able to marry each other before their friends and families in West Virginia, and sought a marriage license from Defendant Cole on September 18, 2013. Id. 14, 22. Plaintiffs Murdock and Glavaris live in Huntington, wish to marry, and sought a marriage license from Defendant Cole on September 24, 2013. Id. 15, 23. Plaintiffs Michael and Fenton live in St. Albans, wish to marry, and sought a marriage license from Defendant McCormick on September 19, 2013. Id. 16, 24. No Plaintiff alleges any direct and personal injury from the Legislatures decision in West Virginia Code 48-2-603 not to recognize out-of-state same-sex marriages. Plaintiffs do not allege that they have valid marriages from other jurisdictions, that they have taken any steps to obtain valid marriages from other jurisdictions, that they intend to be married in other jurisdictions, or that they would have obtained a valid marriage from another jurisdiction if West Virginia recognized out-of-state same-sex marriages. Indeed, they do not even allege that they meet the qualifications to be married in any other jurisdiction.

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The Complaint includes only generalized allegations of harm from that statute. Plaintiffs allege that West Virginias non-recognition law den[ies] respect to marriages of same-sex couples validly entered in other states. Compl. 1. Similarly, Plaintiffs contend that nonrecognition of same-sex marriages from other states denies the adult Plaintiffs and other samesex couples . . . the ability to have a valid marriage from another jurisdiction recorded or recognized in West Virginia. Id. 26. III. ARGUMENT A. Courts Routinely Find That Unmarried Same-Sex Couples Lack Standing To Challenge Laws That Do Not Recognize Same-Sex Marriages. All plaintiffs in federal court must establish the irreducible constitutional minimum of standing. Steel Co. v. Citizens for a Better Envt, 523 U.S. 83, 102 (1998) (citation omitted). The plaintiff must have suffered an injury in fact that is fairly traceable to the challenged statute or conduct and that would be redressable by a decision for the plaintiff. Id. at 102-04; accord Lujan, 504 U.S. at 560. The injury must be concrete as opposed to abstract, and must also be actual or imminent as opposed to conjectural or hypothetical. Lujan, 504 U.S. at 560; see Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). In addition, there are prudential standing principles to which the federal judiciary has also adhered. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982). The Court has held that a plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. Id. Moreover, the Court has refrained as a prudential matter from adjudicating abstract questions of wide public significance which amount to generalized grievances. Id. at 475 (internal quotation marks omitted). Finally, the Court has required that a plaintiff fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in 6

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question. Id. (internal quotation marks omitted); see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004). After many years of challenges to various marriage laws, it is well-settled that unmarried same-sex couples lack standing to challenge statutes that deny recognition to same-sex marriages. Courts have concluded that such couples do not satisfy either the constitutional or prudential requirements for standing. Unless they are actually married and have been denied recognition, the challenged law has not caused them an injury in fact; their complaint about the law is no more than an abstract and generalized grievance. For example, in Smelt v. County of Orange, the U.S. Court of Appeals for the Ninth Circuit held that an unmarried same-sex couple lacked standing to challenge a federal nonrecognition statute when nothing suggest[ed] that they ha[d] gone, or intend[ed] to go to a state where they could legally marry. 447 F.3d 673, 683-85 (9th Cir. 2006). The unmarried same-sex couple challenged Section 2 of the federal Defense of Marriage Act, which provides that States are not required to recognize same-sex marriages validly performed in other jurisdictions. Id. The court found that the plaintiff couples unmarried status defeated both constitutional and prudential standing. First, they lacked constitutional standing because the challenged federal lawwhich denied recognition to married couplessimply d[id] not injure them as an unmarried couple. Id. at 684. Second, they lacked prudential standing because their complaint about the statute was little more than a generalized grievance. As an unmarried couple, their attack on the statute was one that every taxpayer and citizen in the country could theoretically bring. Id. at 685. Other courts have reached similar conclusions. Following Smelt, the U.S. District Court for the District of Mississippi likewise rejected a challenge to Section 2 of DOMA. Because the

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plaintiff fail[ed] to establish that he and his partner ha[d] entered into a legal relationship that is recognized or treated as a marriage, the court found that the plaintiff simply does not have standing to challenge the law. Walker v. Barbour, No. 3:08-CV96-TSL-JCS, 2009 WL 691972 (S.D. Miss. Mar. 12, 2009). The U.S. District Court for the Northern District of Oklahoma has even found same-sex couples that entered into domestic unionsrather than marriagesto lack standing to challenge the federal non-recognition statute. See Bishop v. Oklahoma ex rel.

Edmondson, 447 F. Supp. 2d 1239, 1245-46 (N.D. Okla. 2006), revd on other grounds sub nom. Bishop v. Oklahoma, 333 F. Appx 361 (10th Cir. 2009). B. Plaintiffs Lack Standing To Challenge West Virginias Non-Recognition Of Same-Sex Marriages From Other Jurisdictions. The burden of proving subject matter jurisdiction falls on Plaintiffs. Richmond,

Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). Where defendants contend that the complaint fails to allege facts upon which subject matter jurisdiction may be based, the court presumes the facts alleged in the complaint are true. Kerns v. United States, 585 F.3d 187, 19293 (4th Cir. 2009); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); King v. Riverside Regl Med. Ctr., 211 F.Supp.2d 779, 780-81 (E.D. Va. 2002). Plaintiffs must then prove that the alleged facts give rise to jurisdictionhere, that the alleged facts give rise to standing. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 190 (2000). Each element of standing must be supported in the same way as any other matter on which the plaintiff bears the burden of proof. Lujan, 504 U.S. at 560. Even if West Virginia accepts the allegations in the Complaint as true, Plaintiffs still cannot carry their burden with respect to West Virginias non-recognition statute, West Virginia Code 48-2-603. Plaintiffs allegations make clear that they are not married, wish to be, and

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have taken steps to do so in West Virginia. They do not allege that they have been validly married in another jurisdiction, nor even that they intend to or are qualified to do so. As in Smelt and the other cases discussed above, these alleged facts fail to establish sufficient injury in fact for constitutional standing. As unmarried couples, Plaintiffs suffer no harm from a statute that refuses to recognize out-of-state marriages. The statute has no personal application to, or impact on, Plaintiffs. They assert that the statute denies them the theoretical ability to have a valid marriage from another jurisdiction recorded or recognized in West Virginia, Compl. 26 (emphasis added), but that is not enough. Injury in the constitutional sense must be both real and immediate, not conjectural or hypothetical. City of Los Angeles v. Lyons, 461 U.S. 95, 101102 (1983). Here they fall short of even a conjectural injury, as Plaintiffs have not so much as suggested that they are considering marriage in another jurisdiction, much less seeking to have such a marriage recorded or recognized in West Virginia. But even if Plaintiffs could establish constitutional standing, this Court should find standing lacking for several prudential reasons. To begin with, Plaintiffs complaint about West Virginias non-recognition statute fails to distinguish them from any other member of the public. Anyone could complain that the statute functions to deny the ability to have a valid marriage from another jurisdiction recorded or recognized in West Virginia. Compl. 26. The claim is nothing more than the sort of abstract question of wide public significance, Valley Forge Christian Coll., 454 U.S. at 475, that courts are instructed to avoid as a matter of prudence. Moreover, as unmarried couples, Plaintiffs clearly fall outside the zone of interests to be protected or regulated by the statute . . . in question. Valley Forge, 454 U.S. at 475. The mere fact that they are in a relationship does not put them in the zone of interests of a non-

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recognition statute.

Smelt, 447 F.3d at 685.

Non-recognition statutes govern same-sex

marriages, not all same-sex relationships generally. Finally, Plaintiffs seek to improperly rest [their] claim to relief on the legal rights or interests of third partiesnamely, same-sex couples who have been validly married in other States. Valley Forge, 454 U.S. at 474. Plaintiffs allege that West Virginias non-recognition law den[ies] respect to marriages of same-sex couples validly entered in other states. Compl. 1. But Plaintiffs do not purport to represent a class of same-sex couples married in other states, nor could they, given their dissimilar circumstances. Under longstanding precedent, this Court should not permit Plaintiffs to seek in this case to vindicate the interests of individuals not before this Court. IV. CONCLUSION For the reasons set forth above, this Court should dismiss the Complaint to the extent that it challenges the constitutionality of West Virginia Code 48-2-603.

Respectfully submitted, PATRICK MORRISEY ATTORNEY GENERAL s/ Julie Ann Waren

Julie Ann Warren (WV Bar Number: 9789) Assistant Attorney General Elbert Lin (WV Bar Number: 12171) Solicitor General Office of the Attorney General State Capitol Building 1, Room E-26 Charleston, WV 25305 Telephone: (304) 558-2021 Fax: (304) 558-0140 E-mail: elbert.lin@wvago.gov Counsel for the State of West Virginia

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON DIVISION

CASIE JO MCGEE and SARA 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. Civil Action No. 3:13-24068

CERTIFICATE OF SERVICE I, Julie Ann Warren, counsel for the Movant, hereby certify that on December 16, 2013, I electronically filed the foregoing Motion to Dismiss with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to:
Camilla B. Taylor LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC. Suite 2600 105 West Adams Chicago, IL 60603 Email: ctaylor@lambdalegal.org Elizabeth L. Littrell LAMBA LEGAL DEFENSE & EDUCATION FUND, INC. Suite 1070 730 Peachtree Street, NE Atlanta, GA 30308-1210 Email: blittrell@lambdalegal.org

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Heather Foster Kittredge THE TINNEY LAW FIRM P. O. Box 3752 Charleston, WV 25337-3752 Email: heather@tinneylawfirm.com

Karen L. Loewy LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC. 19th Floor 120 Wall Street New York, NY 10005-3904 Email: kloewy@lambdalegal.org Lindsay C. Harrison JENNER & BLOCK Suite 900 1099 New York Avenue, NW Washington, DC 20001-4412 Luke C. Platzer JENNER & BLOCK Suite 900 1099 New York Avenue, NW Washington, DC 20001-4412 Email: lplatzer@jenner.com Paul M. Smith JENNER & BLOCK Suite 900 1099 New York Avenue, NW Washington, DC 20001-4412 Email: psmith@jenner.com

R. Trent McCotter JENNER & BLOCK Suite 900 1099 New York Avenue, NW Washington, DC 20001-4412 Email: rmccotter@jenner.com John H. Tinney , Jr. THE TINNEY LAW FIRM P. O. Box 3752 Charleston, WV 25337-3752 Email: jacktinney@tinneylawfirm.com Lee Murray Hall JENKINS FENSTERMAKER P. O. BOX 2688 Huntington, WV 25726-2688 Email: lmh@jenkinsfenstermaker.com Sarah A. Walling JENKINS FENSTERMAKER P. O. Box 2688 Huntington, WV 25726-2688 Email: saw@jenkinsfenstermaker.com Charles R. Bailey BAILEY & WYANT P. O. Box 3710 Charleston, WV 25337-3710 Email: cbailey@baileywyant.com Michael W. Taylor BAILEY & WYANT P. O. Box 3710 Charleston, WV 25337-3710 Email: mtaylor@baileywyant.com

s/ Julie Ann Warren Julie Ann Warren