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Hard v. Bentley

United States District Court, M.D. Alabama, Northern Division

March 10, 2015

PAUL HARD, Plaintiff,
ROBERT BENTLEY, et al., Defendants.


W. KEITH WATKINS, Chief District Judge.

Before the court is Defendant Governor Robert Bentley's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), to which Plaintiff has responded. (Docs. # 48, 53.)[1] Upon consideration of the parties' arguments, the Complaint, and relevant law, the court finds that the motion to dismiss is due to be granted.


The court exercises subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 and 1343. Personal jurisdiction and venue are uncontested.


A motion to dismiss under Rule 12(b)(1) may assert either a factual attack or a facial attack to jurisdiction. McElmurray v. Consol. Gov't of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). In a facial attack, the court examines whether the complaint "sufficiently allege[s] a basis of subject matter jurisdiction." Id. As when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, on a Rule 12(b)(1) facial attack the court construes the complaint in the light most favorable to the plaintiff and accepts all well-pleaded facts in the complaint as true. Id.


This suit challenges the constitutionality of two provisions of Alabama law - the "Marriage Protection Act, " Ala. Code § 30-1-19, and the "Sanctity of Marriage Amendment, " Ala. Const. Amend. No. 774 (collectively the "Marriage Sanctity Laws"). (Compl. at 7.) Plaintiff Paul Hard alleges he married David Fancher under the laws of Massachusetts, and the two made a life together in Alabama. When David passed away in a tragic accident in 2011, his Estate became entitled to the proceeds of a wrongful death suit. Under Alabama law, the proceeds of wrongful death actions are distributed without respect to the decedent's will and according to the laws of intestate succession. Plaintiff is not a surviving spouse under Alabama law. Plaintiff therefore seeks, among other relief, a declaratory judgment that the provisions of the Marriage Sanctity Laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent Alabama from recognizing same-sex marriages entered in other states, and an injunction requiring "Alabama state officials" to recognize as marriages the unions of same-sex couples married under the laws of other states. (Compl. at 16-17.)[2]

Governor Bentley is named as a defendant in his official capacity only. The Alabama Attorney General, Luther Strange, is also a defendant in his official capacity, but he has not raised sovereign immunity as a defense, and he has chosen to defend the State of Alabama's interests in defining marriage as between one man and one woman. Governor Bentley is alleged to have the supreme executive power in state government and to maintain and exercise "enforcement authority in connection with the [Marriage] Sanctity Laws" of Alabama. (Compl. at ¶ 16.) The Complaint particularly identifies Governor Bentley's announcement in September 2013 that he would defy a federal directive requiring the Alabama National Guard to provide benefits to same-sex spouses of its members. (Compl. at ¶ 16.) Governor Bentley admitted these allegations in his Answer. (Ans. at ¶ 16.) However, in his motion to dismiss, Governor Bentley references media reports that the Alabama National Guard has complied with the Pentagon's directives. (Doc. # 48, at 4.)[3]

The Complaint also joins as defendants the Alabama State Registrar of Vital Statistics, the Probate Judge of Montgomery County, and Richard I. Lohr, the Administrator of the Estate of David Fancher. Those three defendants were voluntarily dismissed by Plaintiff early in this litigation, but Mr. Lohr recently has appeared and intervened as a defendant for the limited purpose of depositing wrongful death settlement proceeds into the court's registry pending the court's resolution of pending cross-motions for summary judgment. A competing claimant for the settlement funds, David Fancher's mother, Pat Fancher, has also been allowed to join this case as an intervenor-defendant.

Governor Bentley's motion to dismiss (Doc. # 48) was filed on July 24, 2014, over four months after he filed his answer, and within weeks of the end of the period allowed to conduct discovery.


A. Legal Basis and Standard for Granting Sovereign Immunity

Governor Bentley, who is sued in his official capacity only, argues that he should be dismissed as a defendant on the basis of Alabama's sovereign immunity. The Eleventh Amendment states that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. "While the Amendment by its terms does not bar suits against a State by its own citizens, th[e Supreme] Court has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). ...

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