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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION - DETROIT

ERIN DAWN BLANKENSHIP,individually and as parent and next

friend of G.B. and S.B., minors, and

SHAYLA BLANKENSHIP,

individually and as parent and next

friend of B.B. and S.B., minors,

Plaintiffs,

v

RICK SNYDER, in his official

capacity as Governor of the State of

Michigan; BILL SCHUETTE, in his

official capacity as Attorney General

for the State of Michigan; JOHN

GLEASON, in his official capacity as

Genesee County Clerk; and JAMES

BAUER, in his official capacity asAdministrator of the Probate Court

for Genesee County;

Defendants.

No. 14-cv-12221

HON. ARTHUR J. TARNOW

MAG. MICHAEL J.

HLUCHANIUK

DEFENDANT GOVERNOR

RICK SNYDER AND

ATTORNEY GENERAL BILL

SCHUETTES REPLY BRIEF

IN SUPPORT OF THE

MOTION TO DISMISS

Alec Scott Gibbs (P73593)

Attorney for Plaintiffs

Law Offices of Gregory T. Gibbs

717 S. Grand Traverse St.

Flint, MI 48502

(810) 239-9470

Michael F. Murphy (P29213)

Christina M. Grossi (P67482)

Joshua O. Booth (P53847)

Attorneys for State Defendants

MI Dept of Attorney General

State Operations Division

P.O. Box 30754

Lansing, MI 489009

(517) 373-1162

2:14-cv-12221-AJT-MJH Doc # 26 Filed 09/11/14 Pg 1 of 10 Pg ID 344

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H. William Reising (P19343)

Attorney for County Defendants

Plunkett Cooney

111 E. Court Street, Suite 1B

Flint, MI 48502(810) 342-7001

[email protected]

/

Bill Schuette

Attorney General

Michael F. Murphy

Assistant Attorney General



P.O. Box 30754

Lansing, MI 48909

(517) 373-1162

[email protected]

(P29213)

Dated: September 11, 2014


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I. Plaintiffs response reinforces Defendants position that

this case should be held in abeyance.

In responding to Defendants arguments that relief is unavailable

under the Declaratory Judgment Act, Plaintiffs contend that they are

in limbo as to the status of their marriage, and that a declaration by

this Court would provide clarity and consistency (Plaintiffs Response,

DOC #25, Pg ID 335-336). Also, in responding to Defendants

arguments regarding the substantive deficiencies in Plaintiffsequal-

protection and due-process claims, Plaintiffs make several assertions

that a fundamental right is at stake and that a heightened level of

scrutiny is applicable to Defendants justifications for the Marriage

Amendment (Plaintiffs Response, DOC #25, Pg ID 338-342).

But as discussed in Defendants pending motion to hold this case

in abeyance, clarity and consistency will only be achieved after the

Sixth Circuit resolves the same-sex marriage cases currently before it.

Whether the fundamental right to remain in a marriage includes a

same-sex marriage, and the level of scrutiny to be applied to the equal-

protection and due-process claims raised by Plaintiffs, are issues

currently pending before the Sixth Circuit. Resolving Plaintiffs claims

before the Sixth Circuit provides this Court with the necessary


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analytical tools would be imprudent and inefficient, leading to even less

clarity and consistency.

II. Plaintiffs claims do not satisfy the Ex parte Young

exception to Eleventh Amendment immunity.

Plaintiffs allege that they may maintain this action under Ex

parte Young because, [p]er the Defendants directives, Plaintiffs were

denied any attempt to seek second-parent adoptions . . . (Plaintiffs

Response, Doc #25, Pg ID 334). But Plaintiffs offer no specificity as to

what these directives from Defendant Snyder and Defendant Schuette

were, and to the extent Plaintiffs are referencing the Governors general

and explanatory remarks to the press in the wake of theDeBoer

decision, those remarks do not equate to formal directives or executive

orders to state departments.

Furthermore, Plaintiffs argument ignores the wealth of case law

under the Ex parte Youngdoctrine, which requires a fairly direct causal

connection between the constitutional harm complained of and the

action of the named-defendant. This causal connection must be more

than just a general duty to oversee state law or the general supervisory


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authority over state personnel.1 In this case, no such causal connection

exists.

III. Plaintiffs have failed to state a claim for relief under the

Equal Protection Clause or the Due Process Clause.

A. Equal-protection

Plaintiffs contend that Defendants have set forth no rational

basis whateverfor the Michigan Marriage Amendment (Plaintiffs

Response, Doc #25, Pg ID 342). But significantly, Plaintiffs fail to

address the States proffered interest, grounded in Federalism, in

protecting and maintaining a single, consistent, definition of marriage

within its borders that is in accordance with the States longstanding

public policy and the votes of more than two million of its citizens who

voted to amend the constitution to include that definition. This

legitimate, rational, and now unrebutted basis, standing alone, renders

the Marriage Amendment constitutional. (And, again highlighting that

1See e.g. NCO Acquisition, LLC v. Snyder, 2012 WL 2072668 (E.D.

Mich. 2012) citing Childrens Healthcare is a Legal Duty, Inc. v. Deters,92 F.3d 1412 (6th Cir.1996)); United Food and Commercial Workers

Local 99 v. Brewer, 2011 WL 4801887 *4 (D. Ariz. 2011); Snell v. Brown,

2012 WL 3867355 (C.D. Cal. 2012); Southern Pacific Trans. Co. v.

Brown, 651 F.2d 613, 615 (9th Cir. 1980); Long v. Van de Kamp, 961

F.2d 151, 152 (9th Cir. 1992); Shell Oil Co. v. Noel, 608 F.2d 208, 211

(1st Cir. 1979).


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abeyance is appropriate, the State of Ohio has presented this exact

argument to the Sixth Circuit in its pending cases.)

Also, in support of the claim that Plaintiffsout-of-state same-sex

marriage is being treated differently than an out-of-state opposite-sex

marriage, Plaintiffs cite In re Millers Estate, 214 N.W. 428 (Mich.

1927), wherein the Michigan Supreme Court held that Michigan must

recognize an out-of-state marriage of certain persons that could not

have been solemnized under Michigan law. But contrary to the

implication of Plaintiffs argument, Millers Estatedoes not stand for the

proposition that all out-of-state opposite-sex marriages must be

recognized in Michigan. Rather, the case stands for the proposition that

an out-of-state marriage must be recognized unless (as in the case at

bar) recognition of the marriage is prohibited by statute or public policy.

In re Millers Estate, 214 N.W. at 429, 430. Since this rule applies to

same-sex marriages and opposite-sex marriages, Millers Estatedoes

not support a claim of disparate treatment.

B.

Due-process

The extent of Plaintiffs response in support of their due-process

claim is an assertion that the State is infringing on a fundamental right


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and that infringement is subject to heightened scrutiny (Plaintiffs

Response, Doc #25, Pg ID 338-339). But Plaintiffs have failed to cite

any authority for this assertion, and, as mentioned, the existence of a

fundamental right and the level scrutiny applicable to analyzing

Plaintiffs claims will soon be determined by the Sixth Circuit. That

said, there is no fundamental right to the recognition of a same-sex

marriage, and the Marriage Amendment passes rational basis review

since it is rationally related to several legitimate government interests

discussed in Defendants motion to dismiss and this reply.

C. A constitutional amendment and statute similar to

those in Michigan survived equal-protection and due-

process challenges in federal court.

Plaintiffs assert that all federal courts that have dealt with the

issue since the Windsordecision have struck down laws that preclude

the creation or recognition of same-sex marriages (Plaintiffs Response,

DOC #25, Pg ID 336). But a federal court recently upheld Louisianas

constitutional amendment and laws to that effect.

In Robicheaux v. Caldwell, __ F. Supp. 2d __ (E.D. La. 2014); 2014

WL 4347099; (Exhibit 1), in ruling that the Plaintiffs equal-protection

and due-process challenges were without merit under a rational basis


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review, the court determined that Louisiana had a legitimate state

interest in safeguarding that fundamental social change, in this

instance, is better cultivated through democratic consensus (Exhibit 1,

pp 15, 22-23). According to the court, a meaning of what is marriage

that has endured in history for thousands of years, and prevails in a

majority of states today, is not universally irrational on the

constitutional grid;neither is it inspired by hate and intolerance (Id.

at 16, 17). Rather, Louisianas choice to define and recognize marriage

as only between one man and one woman was the result of a statewide

deliberative process that allowed its citizens to discuss and weigh

arguments for and against same-sex marriage (Id. at 17, quoting

United States v. Windsor, 133 S. Ct. 2675, 2689 (2013)). According to

the court, that result must be respected under principles of Federalism,

which remains a vibrant and essential component of our nations

constitutional structure (Exhibit 1, p 31). Ultimately, the court

concluded, Louisianas decision to neither permit nor recognize same-

sex marriage, formed in the arena of the democratic process, is

supported by a rational basis (Exhibit 1, p 32).


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A similar analysis and conclusion are warranted here. As in

Louisiana, Michigans decision not to recognize Plaintiffs marriage was

a matter of longstanding policy formed in the democratic process by

more than two million Michigan citizens voting to amend the

constitution. That policy decision must be respected under principles of

Federalism, and Michigan has a legitimate interest in assuring that

any changes in that policy decision are also the result of the democratic

process. Consequently, Plaintiffs due-process and equal-protection

claims must be dismissed.

RELIEF REQUESTED

Defendants Governor Rick Snyder and Attorney General Bill

Schuette respectfully request this Court grant their motion to dismiss.

Bill Schuette

Attorney General

/s/ Michael F. Murphy


Attorney for State Defendants


P.O. Box 30754Lansing, MI 48909

(517) 373-1162

[email protected]

Dated: September 11, 2014 (P29213)


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PROOF OF SERVICE (E-FILE)

I hereby certify that on September 11, 2014, I electronically filed

the foregoing document(s) with the Clerk of the Court using the ECF

System, which will provide electronic notice and copies of such filing of

the following to the parties.

A courtesy copy of the aforementioned document was placed in the

mail directed to:

Hon. Arthur J. Tarnow

U.S. District Court, Eastern Mich.

231 W. Lafayette Blvd., Rm 124

Detroit, MI 48226

/s/ Michael F. Murphy




P.O. Box 30754

Lansing, MI 48909

(517) 373-1162

[email protected]

(P29213)2014-0080883-A


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