3:16-cv-00045-MGL Date Filed 01/07/16 Entry Number 1 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

CASY CARSON and JAQUELINE CARSON, on their own behalf and as next friends of S.B.C. and S.D.C.,
Plaintiffs,
v.
CATHERINE E. HEIGEL, in her official capacity as Director of the South Carolina Department of Health and Environmental Control and State Registrar of Vital Statistics,
Defendant.

No. __3_:1_6_-_c_v_-0_0_0_4_5_-_M__G_L________
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF NATURE OF THE ACTION
1. Plaintiffs Casy Carson (“Casy”) and Jacqueline Carson (“Jacqueline”) are a married couple who were denied accurate birth certificates for their newborn twins, simply because Casy and Jacqueline are spouses of the same sex. Even though South Carolina’s Department of Health and Environmental Control (“DHEC”) routinely lists both different-sex spouses as parents on their children’s birth certificates (including when their children were born through assisted reproduction and one of the parents is not genetically related to the children), Casy and Jaqueline’s twins received birth certificates inaccurately stating that they have only one parent, because DHEC refuses to recognize Casy and Jacqueline’s marriage on the same terms as the marriages of different-sex couples.
2. Casy and Jaqueline legally married in Washington, D.C. in 2014. They quickly
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began planning to have children, and Jacqueline subsequently became pregnant through assisted reproduction using an anonymous sperm donor. In the Fall of 2015, Jacqueline gave birth to twins, including a baby boy, S.B.C., and a baby girl, S.D.C., in Seneca, South Carolina. Casy and Jacqueline filled out forms at the hospital indicating that they were married, and that they both are the parents of their newborn boy and girl.
3. South Carolina law provides that children born into a marriage are automatically treated as the legal child of both spouses, and requires DHEC to provide a birth certificate memorializing the parental status of each spouse. This recognition of the family’s parent-child bonds allows parents instantly and reliably to establish their status in a range of important settings, from authorizing emergency medical care to enrolling a child for daycare or school.
4. In keeping with the importance of these familial relationships, DHEC has a duty under state law to provide birth certificates that accurately memorialize these parent-child relationships based on the parents’ marriage, even where it is definitively known that one spouse lacks a genetic connection to the child. DHEC currently applies these automatic protections only to children born to different-sex spouses, however. Children born to same-sex spouses are denied accurate birth certificates – receiving instead a certificate falsely stating that the child has only one parent – unless and until same-sex spouses undertake a costly and time-consuming process to obtain a court order requiring DHEC to issue an accurate birth certificate.
5. Even though Casy and Jacqueline indicated their marital status on the forms at the hospital, the birth certificates they received for S.B.C. and S.D.C. falsely indicate that the children have only one parent – Jacqueline, and contain no reference to Casy.
6. DHEC’s policy of refusing to provide accurate birth certificates to the children of Casy and Jacqueline and other same-sex spouses, as implemented through Defendant Catherine
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Heigel’s individual actions, violates guarantees of equal protection and due process under the Fourteenth Amendment to the U.S. Constitution. This discriminatory policy also denies the children of same-sex spouses the dignity, stability, autonomy, and privacy afforded to the families of different-sex spouses, and stigmatizes same-sex spouses’ family relationships as inferior. Casy and Jacqueline bring this suit, on their own behalf and on behalf of their children (together, “Plaintiffs” or the “Carson family”), pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief for the violation of their rights under the Fourteenth Amendment. Plaintiffs ask this Court to: (1) declare that the denial of accurate birth certificates for the children of same-sex spouses is unconstitutional; (2) enjoin Defendant Heigel’s ongoing refusal to issue accurate two-parent birth certificates for the children of same-sex spouses on the same terms as the children of different-spouses; and (3) order Defendant Heigel to ensure that corrected birth certificates are issued upon request to the Carson family, and to other same-sex spouses and children previously denied them, without charging any fees that otherwise might apply to a corrected birth certificate.
JURISDICTION AND VENUE 7. Plaintiffs bring this action under 42 U.S.C. § 1983 to redress the deprivation under color of state law of rights secured by the United States Constitution. 8. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States. 9. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(1) and Local Civ. Rule 3.01 (D.S.C.) because Defendant Heigel resides within the Columbia Division of the District of South Carolina and all Defendants reside within South Carolina, and because
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Defendant Heigel does business relating to the events alleged herein in this Division. 10. This Court has the authority to enter a declaratory judgment and to provide
preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure, and 28 U.S.C. §§ 2201 and 2202.
11. This Court has personal jurisdiction over Defendant because she is domiciled in South Carolina.
PARTIES 12. Plaintiffs Casy Carson, age 25, and Jacqueline Carson, age 25, both lesbian women, are same-sex spouses. They reside in Pendleton, Anderson County, South Carolina. Each appears individually and as next friend to the couple’s four-month-old twins, S.B.C. and S.D.C. 13. Plaintiffs S.B.C. and S.D.C. reside in Pendleton, Anderson County, South Carolina, and sue through their parents, Casy and Jacqueline. 14. Defendant Catherine E. Heigel is sued in her official capacity as Director of the South Carolina Department of Health and Environmental Control (“Director”) and State Registrar of Vital Statistics (“State Registrar”). Defendant Heigel’s statutory duties under S.C. Code Ann. § 44-63-30 require her to carry into effect DHEC’s orders and regulations, including regulations specifically requiring that DHEC list both spouses on birth certificates for children born into a marriage. Defendant Heigel’s name and signature appear on the birth certificates for both S.D.C. and S.B.C. in her capacity as Director and State Registrar. Defendant Heigel is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. 15. Defendant Heigel, and those subject to her direction, supervision, and control,
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intentionally performed, participated in, aided and/or abetted in some manner the acts alleged here, proximately caused the harm alleged herein, and will continue to injure Plaintiffs and other families of same-sex spouses irreparably if not enjoined. Accordingly, the relief requested herein is sought against Defendant Heigel, as well as all persons under her supervision, direction, or control, including but not limited to her officers, employees, and agents.
LAW GOVERNING BIRTH CERTIFICATES 16. In South Carolina, children born into a marriage are presumptively treated as the legal children of both spouses. Pursuant to S.C. Code Regs. § 61-19, Sect. 8(f) (also, the “Regulation”), DHEC must determine parentage for each newborn’s birth certificate according to the following rules (emphasis added), which the Constitution requires be read in a gender-neutral fashion to apply equally to wives of married women as well as husbands of married women:
Parentage should be determined as follows: (1) If the mother was married either at time of conception or birth, or anytime between conception and birth, the name of the husband shall be entered on the certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction. . . . (5) A child born to a married woman as a result of artificial insemination, with consent of her husband, shall be deemed to be the legitimate child of the husband and wife. 17. Pursuant to subsection (1), only a court determination of paternity may disturb the obligation to list both spouses as parents. Pursuant to subsection (5), the obligation to list both spouses on the birth certificate applies even where it is definitively known that one spouse lacks or both spouses lack a genetic connection to their child, as is the case for many children born “as a result of artificial insemination.” 18. Upon information and belief, and as required by the Regulation, DHEC routinely
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provides birth certificates listing both different-sex spouses as parents based on the fact of their marriage. DHEC refuses, however, to issue accurate birth certificates on the same terms to same-sex couples. Instead, upon information and belief, DHEC will not issue a birth certificate accurately listing both same-sex spouses as parents unless the omitted parent obtains either an adoption decree or some other court order requiring DHEC to issue an accurate birth certificate.
19. In defiance of the Fourth Circuit’s ruling in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), that states must recognize same-sex couples’ valid marriages, and the Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2071 (2015), that the Fourteenth Amendment requires equal treatment of same-sex spouses and their children, Defendant Heigel refused to apply the Regulation equally to the Carson family when S.B.C. and S.D.C. were born, and continues to refuse to apply the regulation to families of same-sex spouses on the same terms as families of different-sex spouses. Defendant Heigel’s actions directly contravene the holding in Obergefell involving Ohio’s refusal to provide same-sex spouses with birth certificates on the same terms as different-sex spouses. Obergefell held that states must make the rights and responsibilities of marriage available to same-sex couples on the same terms as different-sex couples, expressly listing “birth . . . certificates” as one of the important facets of marriage to which same-sex couples must have equal access.
STATEMENT OF FACTS 20. Casy and Jacqueline began dating in high school, and have been a loving, devoted couple since October 2011. Casy served as an Air Defense Battle Management Systems Operator in the National Guard, until a serious injury required her to end active duty service in 2013. Casy now cares for the couple’s twins full-time. Jacqueline works as a teacher for a Head Start agency in Greenville, South Carolina, and helps take care of toddlers of various ages.
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21. Casy and Jacqueline were legally married on April 18, 2014. They married in Washington, D.C., since they were not yet permitted to marry in South Carolina. Because Casy’s family could not afford to travel to the wedding ceremony, the couple had a reception in South Carolina after they returned home.
22. Casy and Jacqueline wanted to wait to have children until they were married, to provide their children with the added stability of a recognized family unit. They also wanted to share a common last name to help others understand that they are a family, but they could not fully effectuate a name change until South Carolina began recognizing same-sex couples’ marriages. Because they knew Jacqueline would be the birth mother, they decided to make Casy’s last name their family name, to help others understand that Casy is the children’s other parent. Once South Carolina began recognizing their marriage, Jaqueline formally assumed Casy’s last name.
23. Casy and Jacqueline began working with a local fertility clinic so that Jacqueline could conceive via assisted reproductive technology. Casy and Jacqueline also worked with a company called Pacific Reproductive Services in California to find an anonymous donor. Casy and Jacqueline worked together as partners through every aspect of the process, including the selection of the anonymous donor, and Casy was by Jacqueline’s side during the insemination.
24. Casy and Jacqueline signed a consent agreement provided by their local fertility clinic, and agreed in that contract that they would not “attempt to discover the identity of the donor.” Casy also expressly agreed that any children conceived would be her “legitimate child(ren) and heir(s) of [her] body,” and that “such child(ren) conceived or born shall be considered to be in all respects, including descent and distribution of [her] property, a child(ren) of [her] body.” Casy and Jacqueline separately received a letter from Pacific Reproductive
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Services confirming that the donor had signed a contract “in which he acknowledges his waiver of parental rights.”
25. Jacqueline became pregnant in January 2015. Casy supported Jacqueline through a difficult pregnancy, and in the Fall Jacqueline gave birth to twins: a baby boy, S.B.C., and a baby girl, S.D.C. Two days after the birth, the couple filled out the forms at the hospital required to help DHEC prepare the birth certificates. Casy and Jacqueline crossed out the word “father” on the forms, wrote “second mother” next to it, and listed Casy’s name. They also indicated on the forms that they are married.
26. Casy and Jacqueline subsequently received birth certificates for S.B.C. and S.D.C. in the mail from DHEC. Without any explanation, both birth certificates incorrectly omitted all of Casy’s information and listed Jacqueline as the children’s sole parent.
27. Casy and Jacqueline have researched obtaining an adoption decree in South Carolina, but the attorney they contacted for help charges a flat fee of $5,000. They know that, at a minimum, they would need to pay approximately $175.00 in court fees, which this young family can ill afford after incurring expenses relating to Jacqueline’s pregnancy, including a period of hospitalization and loss of income while she was on bed rest. Further, South Carolina’s Judicial Department has self-help packets for individuals seeking a divorce or child support, but no such resources for individuals seeking to navigate an adoption on their own.
28. Unless and until parents like Casy undertake such expensive and burdensome steps, they are subject to ongoing vulnerability and barriers to exercising their family autonomy in a host of important settings. Equally important, DHEC’s policy subjects parents like Casy and Jacqueline to the indignity of being required to seek court approval before being able to have the parentage of their children accurately acknowledged, and secure the accurate birth certificates
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that issue automatically to different-sex spouses. Casy and Jacqueline may choose to have other children in the future, and should not have to bring a court proceeding to obtain the accurate birth certificates that they should receive under state law, at a time when they are caring for newborns.
29. Defendant Heigel’s refusal to issue accurate birth certificates to same-sex couples absent an adoption decree or order of parentage inflicts serious harm on the Carson family, and other families like them. This discriminatory policy leaves Casy and other same-sex spouses unable to prove parentage to third parties, such as medical providers, day care providers, and schools. This leaves the Carson family particularly vulnerable in emergency situations, since Casy is the full-time caregiver of the children, but may not be able to authorize emergency medical care were it needed. Nor would Casy be able to prove her parental relationship for purposes of insuring the children if she subsequently entered the workforce.
30. This discriminatory treatment also makes it difficult, if not impossible, to supply the accurate documentation required by the Social Security Administration to obtain a Social Security card for the children of married same-sex couples, and by the U.S. Department of State for obtaining a passport for them, which require documents demonstrating biographical information such as the names of one’s parents. Casy currently receives Social Security disability benefits because of the back injury that ended her National Guard career, but because she cannot produce an accurate birth certificate for her children, she cannot obtain children’s benefits otherwise available to the twins, depriving the family of important financial support. If Casy predeceased her minor children, they might not qualify for Social Security survivor’s benefits without a birth certificate documenting the parent-child relationship.
31. If a family falls on hard economic times, birth certificates may be required to apply for benefits on behalf of the children. Moreover, if a child goes missing or is kidnapped,
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law enforcement agencies often require parents to produce a birth certificate to report a missing child or secure the child’s return.
32. Birth certificates are also commonly necessary for a state agency to obtain delinquent child support.
33. Even if Casy and Jacqueline can explain the discrepancies in the birth certificates and establish Casy’s equal claim to exercise control over S.B.C.’s and S.D.C.’s care and custody, having to do so invades the privacy of the Carson family by requiring them to reveal to a host of third parties which parent has a genetic connection to the children, signals to others that they are not a “real” family on equal footing with others, and invites discrimination against them. In short, same-sex spouses are required to broadcast the very personal details of their use of assisted reproduction, and the status of their genetic relationships to their children, to others every time they need to explain why one parent was omitted from the birth certificate. Different sex spouses in South Carolina, on the other hand, are afforded a measure of privacy and dignity in obtaining accurate birth certificates that eliminate the need to explain to strangers how they created their family, and whether they are genetically related to their children – an important measure of privacy to many families formed through, for example, assisted reproduction or adoption.
34. Defendant Heigel’s failure to issue two-parent birth certificates to the Carson children harms them by inaccurately describing their legal relationships to their parents and by communicating to them and to any other people who may see their birth certificates that their government does not perceive them as a legal family, each with two legally recognized parents. Through no fault of their own, the Carson children suffer the stigma of being told by their government that their family is somehow lesser than other marital families.
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35. Defendant Heigel’s discriminatory denial of accurate birth certificates to S.B.C. and S.D.C., and other children of same-sex spouses, deprives them of the dignity, legitimacy, privacy, security, support, and protections available upon birth to children of different-sex spouses, and deprives Casy and Jacqueline of the dignity, privacy, security, support, and protections available to different-sex spouses.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Deprivation of Equal Protection
U.S. Const. Amend. XIV 36. Plaintiffs incorporate by reference and re-allege paragraphs 1-35 of this complaint as though fully set forth herein. 37. Plaintiffs state this cause of action against Defendant Heigel in her official capacity for purposes of seeking declaratory and injunctive relief. 38. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” 39. Defendant Heigel’s individual actions in refusing to apply S.C. Code Regs. § 6119, Sect. 8(f), which the Constitution requires to be read in a gender-neutral fashion, to same-sex spouses on the same terms as different-sex spouses, including but not limited to her individual actions in signing S.B.C.’s and S.D.C.’s birth certificates in her capacity as both Director and Registrar, violate the equal protection guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs. 40. DHEC’s discriminatory policy, as implemented through Defendant Heigel’s individual actions, violates the rights of Casy and Jacqueline and other same-sex spouses to
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equal protection by discriminating impermissibly on the basis of Casy and Jacqueline’s sexual orientation, status as a same-sex couple, and sex, and with respect to the exercise of fundamental rights and liberties secured by the Due Process Clause.
41. DHEC’s discriminatory policy, as implemented through Defendant Heigel’s individual actions, violates the rights of S.B.C. and S.D.C. and other children of same-sex spouses to equal protection by discriminating impermissibly on the basis of their parents’ sexual orientation, status as a same-sex couple, and sex, and with respect to their parents’ exercise of fundamental rights and liberties secured by the Due Process Clause.
42. Families with same-sex spouses are identical to families with different-sex spouses in every way relevant to the need for legally accurate birth certificates for children born during their marriage, including for example, the need for stability and predictability that comes with automatic recognition of each spouse’s status as a parent.
43. Defendant Heigel’s discriminatory refusal to apply the Regulation, which the Constitution requires to be read in a gender-neutral fashion, on equal terms to same-sex and different-sex spouses denies same-sex spouses and their children equal dignity and respect, and deprives their families of a critical safety net for recognizing and protecting parent-child bonds. Defendant Heigel’s discriminatory policy brands same-sex spouses and their children as secondclass citizens through a message of government-imposed stigma and fosters private bias and discrimination, by instructing all persons who interact with these families that their family relationships are less worthy than others.
44. DHEC’s discriminatory policy, as implemented through Defendant Heigel’s individual actions, also harms the children of same-sex couples by incorrectly labeling them the children of unmarried parents, depriving them of access to immediate, clear proof of their
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relationship to both parents and of the security that comes with having two parents listed on their birth certificates. Defendant Heigel’s refusal to provide these children with accurate birth certificates discriminates against and punishes these children based on their parents’ status as same-sex couples, and their parents’ sexual orientation.
45. Defendant Heigel’s discrimination against same-sex spouses and their families does not serve any legitimate governmental interest, let alone any important or compelling interests, nor does it serve any such interests in an adequately tailored manner.
SECOND CLAIM FOR RELIEF Deprivation of Due Process U.S. Const. Amend. XIV
46. Plaintiffs incorporate by reference and re-allege paragraphs 1-35 of this complaint as though fully set forth herein.
47. Plaintiffs state this cause of action against Defendant Heigel in her official capacity for purposes of seeking declaratory and injunctive relief.
48. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”
49. Defendant Heigel’s individual actions in refusing to apply S.C. Code Regs. § 6119, Sect. 8(f) on the same terms to same-sex spouses as different-sex spouses, including but not limited to her individual action in signing S.B.C. and S.D.C.’s birth certificates in her capacity as both Director and Registrar, unconstitutionally infringes on the fundamental rights and liberty interests of Plaintiffs, and other families with same-sex spouses, guaranteed by the Fourteenth Amendment.
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50. Plaintiffs have a liberty interest in their family privacy, dignity, integrity, and association, which includes the fundamental right to security in their legal parent-child bonds. Casy and Jacqueline also have a protected liberty interest in their parental autonomy, including the fundamental right to make decisions concerning when, whether, and how to have and rear their family, and concerning the care, custody, and control of their children that are presumptively in the children’s best interests.
51. The right to marry safeguards children and families, and thus is recognized by the Supreme Court as a unified whole with related rights of childrearing, procreation, and education. The Regulation’s protection for the bonds between children and their married parents is both a core right and responsibility of marriage. By declining to apply the Regulation to the children born to same-sex spouses, and depriving these families of legally accurate two-parent birth certificates, Defendant Heigel interferes with the permanency and stability important to children’s best interests, and infringes impermissibly on same-sex spouses’ fundamental liberty interests in their existing marriage, and on their fundamental parental interests.
52. There is no constitutionally adequate basis for Defendant Heigel’s decision to infringe on the fundamental rights and liberty interests of same-sex spouses and their children, let alone an interest that can survive the heightened scrutiny required to justify infringement of those fundamental rights and liberty interests.
DECLARATORY AND INJUNCTIVE RELIEF 28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure, Rules 57 and 65 53. Plaintiffs incorporate by reference and re-allege paragraphs 1-35 of this complaint as though fully set forth herein. 54. This case presents an actual controversy because Defendant Heigel’s present and ongoing denial of equal treatment to Plaintiffs subjects them to serious and immediate harms,
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warranting the issuance of a declaratory judgment. 55. Plaintiffs seek preliminary and permanent injunctive relief to protect their
constitutional rights and avoid the injuries described above. A favorable decision enjoining Defendant Heigel’s discriminatory actions would redress and prevent the irreparable injuries to Plaintiffs identified herein, for which Plaintiffs have no adequate remedy at law or in equity.
56. Defendant Heigel will incur little to no burden in applying the Regulation to same-sex spouses on the same terms as she applies the Regulation to different-sex spouses, whereas the hardship for Plaintiffs of being denied equal treatment and due process is severe, subjecting them to an irreparable denial of their constitutional rights. The balance of hardships thus tips strongly in favor of Plaintiffs.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter judgment: A. Declaring that Defendant Heigel’s refusal to apply S.C. Code Regs. § 61-19, Sect. 8(f) in a gender-neutral fashion on equal terms to same-sex spouses and their children, and refusal to issue legally accurate birth certificates listing both same-sex spouses as parents of their children born during marriage, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; B. Preliminarily and permanently enjoining Defendant Heigel, along with Defendant Heigel’s officers, employees, and agents, all persons acting in active concert or participation with Defendant Heigel, and all persons under Defendant Heigel’s supervision, direction, or control, from (1) refusing to apply S.C. Code Regs. § 61-19, Sect. 8(f) in a gender-neutral fashion on the same terms to same-sex spouses and their children as different-sex spouses and their children,
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and from (2) refusing to issue accurate birth certificates listing both same-sex spouses as parents of their children born during marriage;
C. Ordering Defendant Heigel in her official capacity, along with Defendant Heigel’s officers, employees, and agents, all persons acting in active concert or participation with Defendant Heigel, and all persons under Defendant Heigel’s supervision, direction, or control, to issue a corrected birth certificate to Casy and Jacqueline listing both of them as parents to S.B.C. and S.D.C. without charging any fees that otherwise might apply to a corrected birth certificate; to issue birth certificates listing same-sex spouses as parents on the same terms as different-sex spouses under Code Regs. § 61-19, Sect. 8(f); and to issue accurate birth certificates upon request to same-sex spouses previously denied them without charging any fees that otherwise might apply to a corrected birth certificate;
D. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988 and other applicable laws; and
E. Granting such other and further relief as the Court deems just and proper.

DATED: January 7, 2016

Respectfully submitted,

THE FINNEY LAW FIRM, INC.

s/ Jerry Leo Finney, Sr.

.

Jerry Leo Finney, Sr., S.C. Bar No. 6489

2117 Park Street

Columbia, South Carolina 29201

Phone: (803) 254-7408

Fax: (803) 254-1941

jlfinney@bellsouth.net

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
Tara L. Borelli* 730 Peachtree Street, NE, Suite 1070 Atlanta, Georgia 30308 Phone: (404) 897-1880 Fax: (404) 897-1884 tborelli@lambdalegal.org

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BRYAN CAVE, LLP
William V. Custer* Jennifer B. Dempsey* Luke A. Lantta* 1201 W. Peachtree St., N.W., 14th Floor Atlanta, Georgia 30309 Phone: (404) 572 6600 Fax: (404) 572 6999 bill.custer@bryancave.com Jennifer.dempsey@bryancave.com luke.lantta@bryancave.com

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
Susan L. Sommer* 120 Wall Street, 19th Floor New York, New York 10005 Phone: (212) 809-8585 Fax: (212) 809-0055 ssommer@lambdalegal.org

* Pro hac vice applications forthcoming

Counsel for Plaintiffs

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 3:16-cv-00045-MGL Date Filed 01/27/16 Entry Number 12 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

CASY CARSON and JACQUELINE CARSON, on their own behalf and as next friends of S.B.C. and S.D.C.,
Plaintiffs,
v.
CATHERINE E. HEIGEL, in her official capacity as Director of the South Carolina Department of Health and Environmental Control and State Registrar of Vital Statistics,
Defendant.

No. 3:16-cv-00045-MGL
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF NATURE OF THE ACTION
1. Plaintiffs Casy Carson (“Casy”) and Jacqueline Carson (“Jacqueline”) are a married couple who were denied accurate birth certificates for their newborn twins, simply because Casy and Jacqueline are spouses of the same sex. Even though South Carolina’s Department of Health and Environmental Control (“DHEC”) routinely lists both different-sex spouses as parents on their children’s birth certificates (including when their children were born through assisted reproduction and one of the parents is not genetically related to the children), Casy and Jacqueline’s twins received birth certificates inaccurately stating that they have only one parent, because DHEC refuses to recognize Casy and Jacqueline’s marriage on the same terms as the marriages of different-sex couples.
2. Casy and Jacqueline legally married in Washington, D.C. in 2014. They quickly
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began planning to have children, and Jacqueline subsequently became pregnant through assisted reproduction using an anonymous sperm donor. In the Fall of 2015, Jacqueline gave birth to twins, including a baby boy, S.B.C., and a baby girl, S.D.C., in Greenville, South Carolina. Casy and Jacqueline filled out forms at the hospital indicating that they were married, and that they both are the parents of their newborn boy and girl.
3. South Carolina law provides that children born into a marriage are automatically treated as the legal child of both spouses, and requires DHEC to provide a birth certificate memorializing the parental status of each spouse. This recognition of the family’s parent-child bonds allows parents instantly and reliably to establish their status in a range of important settings, from authorizing emergency medical care to enrolling a child for daycare or school.
4. In keeping with the importance of these familial relationships, DHEC has a duty under state law to provide birth certificates that accurately memorialize these parent-child relationships based on the parents’ marriage, even where it is definitively known that one spouse lacks a genetic connection to the child. DHEC currently applies these automatic protections only to children born to different-sex spouses, however. Children born to same-sex spouses are denied accurate birth certificates – receiving instead a certificate falsely stating that the child has only one parent – unless and until same-sex spouses undertake a costly and time-consuming process to obtain a court order requiring DHEC to issue an accurate birth certificate.
5. Even though Casy and Jacqueline indicated their marital status on the forms at the hospital, the birth certificates they received for S.B.C. and S.D.C. falsely indicate that the children have only one parent – Jacqueline, and contain no reference to Casy.
6. DHEC’s policy of refusing to provide accurate birth certificates to the children of Casy and Jacqueline and other same-sex spouses, as implemented through Defendant Catherine
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Heigel’s individual actions, violates guarantees of equal protection and due process under the Fourteenth Amendment to the U.S. Constitution. This discriminatory policy also denies the children of same-sex spouses the dignity, stability, autonomy, and privacy afforded to the families of different-sex spouses, and stigmatizes same-sex spouses’ family relationships as inferior. Casy and Jacqueline bring this suit, on their own behalf and on behalf of their children (together, “Plaintiffs” or the “Carson family”), pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief for the violation of their rights under the Fourteenth Amendment. Plaintiffs ask this Court to: (1) declare that the denial of accurate birth certificates for the children of same-sex spouses is unconstitutional; (2) enjoin Defendant Heigel’s ongoing refusal to issue accurate two-parent birth certificates for the children of same-sex spouses on the same terms as the children of different-spouses; and (3) order Defendant Heigel to ensure that corrected birth certificates are issued upon request to the Carson family, and to other same-sex spouses and children previously denied them, without charging any fees that otherwise might apply to a corrected birth certificate.
JURISDICTION AND VENUE 7. Plaintiffs bring this action under 42 U.S.C. § 1983 to redress the deprivation under color of state law of rights secured by the United States Constitution. 8. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States. 9. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(1) and Local Civ. Rule 3.01 (D.S.C.) because Defendant Heigel resides within the Columbia Division of the District of South Carolina and all Defendants reside within South Carolina, and because
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Defendant Heigel does business relating to the events alleged herein in this Division. 10. This Court has the authority to enter a declaratory judgment and to provide
preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure, and 28 U.S.C. §§ 2201 and 2202.
11. This Court has personal jurisdiction over Defendant because she is domiciled in South Carolina.
PARTIES 12. Plaintiffs Casy Carson and Jacqueline Carson, both in their mid-twenties and both lesbian women, are same-sex spouses. They reside in Pendleton, Anderson County, South Carolina. Each appears individually and as next friend to the couple’s infant twins, S.B.C. and S.D.C. 13. Plaintiffs S.B.C. and S.D.C. reside in Pendleton, Anderson County, South Carolina, and sue through their parents, Casy and Jacqueline. 14. Defendant Catherine E. Heigel is sued in her official capacity as Director of the South Carolina Department of Health and Environmental Control (“Director”) and State Registrar of Vital Statistics (“State Registrar”). Defendant Heigel’s statutory duties under S.C. Code Ann. § 44-63-30 require her to carry into effect DHEC’s orders and regulations, including regulations specifically requiring that DHEC list both spouses on birth certificates for children born into a marriage. Defendant Heigel’s name and signature appear on the birth certificates for both S.D.C. and S.B.C. in her capacity as Director and State Registrar. Defendant Heigel is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. 15. Defendant Heigel, and those subject to her direction, supervision, and control,
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intentionally performed, participated in, aided and/or abetted in some manner the acts alleged here, proximately caused the harm alleged herein, and will continue to injure Plaintiffs and other families of same-sex spouses irreparably if not enjoined. Accordingly, the relief requested herein is sought against Defendant Heigel, as well as all persons under her supervision, direction, or control, including but not limited to her officers, employees, and agents.
LAW GOVERNING BIRTH CERTIFICATES 16. In South Carolina, children born into a marriage are presumptively treated as the legal children of both spouses. Pursuant to S.C. Code Regs. § 61-19, Sect. 8(f) (also, the “Regulation”), DHEC must determine parentage for each newborn’s birth certificate according to the following rules (emphasis added), which the Constitution requires be read in a gender-neutral fashion to apply equally to wives of married women as well as husbands of married women:
Parentage should be determined as follows: (1) If the mother was married either at time of conception or birth, or anytime between conception and birth, the name of the husband shall be entered on the certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction. . . . (5) A child born to a married woman as a result of artificial insemination, with consent of her husband, shall be deemed to be the legitimate child of the husband and wife. 17. Pursuant to subsection (1), only a court determination of paternity may disturb the obligation to list both spouses as parents. Pursuant to subsection (5), the obligation to list both spouses on the birth certificate applies even where it is definitively known that one spouse lacks or both spouses lack a genetic connection to their child, as is the case for many children born “as a result of artificial insemination.” 18. Upon information and belief, and as required by the Regulation, DHEC routinely
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provides birth certificates listing both different-sex spouses as parents based on the fact of their marriage. DHEC refuses, however, to issue accurate birth certificates on the same terms to same-sex couples. Instead, upon information and belief, DHEC will not issue a birth certificate accurately listing both same-sex spouses as parents unless the omitted parent obtains either an adoption decree or some other court order requiring DHEC to issue an accurate birth certificate.
19. In defiance of the Fourth Circuit’s ruling in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), that states must recognize same-sex couples’ valid marriages, and the Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2071 (2015), that the Fourteenth Amendment requires equal treatment of same-sex spouses and their children, Defendant Heigel refused to apply the Regulation equally to the Carson family when S.B.C. and S.D.C. were born, and continues to refuse to apply the regulation to families of same-sex spouses on the same terms as families of different-sex spouses. Defendant Heigel’s actions directly contravene the holding in Obergefell involving Ohio’s refusal to provide same-sex spouses with birth certificates on the same terms as different-sex spouses. Obergefell held that states must make the rights and responsibilities of marriage available to same-sex couples on the same terms as different-sex couples, expressly listing “birth . . . certificates” as one of the important facets of marriage to which same-sex couples must have equal access.
STATEMENT OF FACTS 20. Casy and Jacqueline began dating in high school, and have been a loving, devoted couple since October 2011. Casy served as an Air Defense Battle Management Systems Operator in the National Guard, until a serious injury required her to end active duty service in 2013. Casy now cares for the couple’s twins full-time. Jacqueline works as a teacher for a Head Start agency in Seneca, South Carolina, and helps take care of toddlers of various ages.
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21. Casy and Jacqueline were legally married on April 18, 2014. They married in Washington, D.C., since they were not yet permitted to marry in South Carolina. Because Casy’s family could not afford to travel to the wedding ceremony, the couple had a reception in South Carolina after they returned home.
22. Casy and Jacqueline wanted to wait to have children until they were married, to provide their children with the added stability of a recognized family unit. They also wanted to share a common last name to help others understand that they are a family, but they could not fully effectuate a name change until South Carolina began recognizing same-sex couples’ marriages. Because they knew Jacqueline would be the birth mother, they decided to make Casy’s last name their family name, to help others understand that Casy is the children’s other parent. Once South Carolina began recognizing their marriage, Jacqueline formally assumed Casy’s last name.
23. Casy and Jacqueline began working with a local fertility clinic so that Jacqueline could conceive via assisted reproductive technology. Casy and Jacqueline also worked with a company called Pacific Reproductive Services in California to find an anonymous donor. Casy and Jacqueline worked together as partners through every aspect of the process, including the selection of the anonymous donor, and Casy was by Jacqueline’s side during the insemination.
24. Casy and Jacqueline signed a consent agreement provided by their local fertility clinic, and agreed in that contract that they would not “attempt to discover the identity of the donor.” Casy also expressly agreed that any children conceived would be her “legitimate child(ren) and heir(s) of [her] body,” and that “such child(ren) conceived or born shall be considered to be in all respects, including descent and distribution of [her] property, a child(ren) of [her] body.” Casy and Jacqueline separately received a letter from Pacific Reproductive
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Services confirming that the donor had signed a contract “in which he acknowledges his waiver of parental rights.”
25. Jacqueline became pregnant in January 2015. Casy supported Jacqueline through a difficult pregnancy, and in the Fall Jacqueline gave birth to twins: a baby boy, S.B.C., and a baby girl, S.D.C. Two days after the birth, the couple filled out the forms at the hospital required to help DHEC prepare the birth certificates. Casy and Jacqueline crossed out the word “father” on the forms, wrote “second mother” next to it, and listed Casy’s name. They also indicated on the forms that they are married.
26. Casy and Jacqueline subsequently received birth certificates for S.B.C. and S.D.C. in the mail from DHEC. Without any explanation, both birth certificates incorrectly omitted all of Casy’s information and listed Jacqueline as the children’s sole parent.
27. Casy and Jacqueline have researched obtaining an adoption decree in South Carolina, but the attorney they contacted for help charges a flat fee of $5,000. They know that, at a minimum, they would need to pay approximately $175.00 in court fees, which this young family can ill afford after incurring expenses relating to Jacqueline’s pregnancy, including a period of hospitalization and loss of income while she was on bed rest. Further, South Carolina’s Judicial Department has self-help packets for individuals seeking a divorce or child support, but no such resources for individuals seeking to navigate an adoption on their own.
28. Unless and until parents like Casy undertake such expensive and burdensome steps, they are subject to ongoing vulnerability and barriers to exercising their family autonomy in a host of important settings. Equally important, DHEC’s policy subjects parents like Casy and Jacqueline to the indignity of being required to seek court approval before being able to have the parentage of their children accurately acknowledged, and secure the accurate birth certificates
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that issue automatically to different-sex spouses. Casy and Jacqueline may choose to have other children in the future, and should not have to bring a court proceeding to obtain the accurate birth certificates that they should receive under state law, at a time when they are caring for newborns.
29. Defendant Heigel’s refusal to issue accurate birth certificates to same-sex couples absent an adoption decree or order of parentage inflicts serious harm on the Carson family, and other families like them. This discriminatory policy leaves Casy and other same-sex spouses unable to prove parentage to third parties, such as medical providers, day care providers, and schools. This leaves the Carson family particularly vulnerable in emergency situations, since Casy is the full-time caregiver of the children, but may not be able to authorize emergency medical care were it needed. Nor would Casy be able to prove her parental relationship for purposes of insuring the children if she subsequently entered the workforce.
30. This discriminatory treatment also makes it difficult, if not impossible, to supply the accurate documentation required by the Social Security Administration to obtain a Social Security card for the children of married same-sex couples, and by the U.S. Department of State for obtaining a passport for them, which require documents demonstrating biographical information such as the names of one’s parents. Casy currently receives Social Security disability benefits because of the back injury that ended her National Guard career, but because she cannot produce an accurate birth certificate for her children, she cannot obtain children’s benefits otherwise available to the twins, depriving the family of important financial support. If Casy predeceased her minor children, they might not qualify for Social Security survivor’s benefits without a birth certificate documenting the parent-child relationship.
31. If a family falls on hard economic times, birth certificates may be required to apply for benefits on behalf of the children. Moreover, if a child goes missing or is kidnapped,
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law enforcement agencies often require parents to produce a birth certificate to report a missing child or secure the child’s return.
32. Birth certificates are also commonly necessary for a state agency to obtain delinquent child support.
33. Even if Casy and Jacqueline can explain the discrepancies in the birth certificates and establish Casy’s equal claim to exercise control over S.B.C.’s and S.D.C.’s care and custody, having to do so invades the privacy of the Carson family by requiring them to reveal to a host of third parties which parent has a genetic connection to the children, signals to others that they are not a “real” family on equal footing with others, and invites discrimination against them. In short, same-sex spouses are required to broadcast the very personal details of their use of assisted reproduction, and the status of their genetic relationships to their children, to others every time they need to explain why one parent was omitted from the birth certificate. Different sex spouses in South Carolina, on the other hand, are afforded a measure of privacy and dignity in obtaining accurate birth certificates that eliminate the need to explain to strangers how they created their family, and whether they are genetically related to their children – an important measure of privacy to many families formed through, for example, assisted reproduction or adoption.
34. Defendant Heigel’s failure to issue two-parent birth certificates to the Carson children harms them by inaccurately describing their legal relationships to their parents and by communicating to them and to any other people who may see their birth certificates that their government does not perceive them as a legal family, each with two legally recognized parents. Through no fault of their own, the Carson children suffer the stigma of being told by their government that their family is somehow lesser than other marital families.
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35. Defendant Heigel’s discriminatory denial of accurate birth certificates to S.B.C. and S.D.C., and other children of same-sex spouses, deprives them of the dignity, legitimacy, privacy, security, support, and protections available upon birth to children of different-sex spouses, and deprives Casy and Jacqueline of the dignity, privacy, security, support, and protections available to different-sex spouses.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Deprivation of Equal Protection
U.S. Const. Amend. XIV 36. Plaintiffs incorporate by reference and re-allege paragraphs 1-35 of this complaint as though fully set forth herein. 37. Plaintiffs state this cause of action against Defendant Heigel in her official capacity for purposes of seeking declaratory and injunctive relief. 38. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” 39. Defendant Heigel’s individual actions in refusing to apply S.C. Code Regs. § 6119, Sect. 8(f), which the Constitution requires to be read in a gender-neutral fashion, to same-sex spouses on the same terms as different-sex spouses, including but not limited to her individual actions in signing S.B.C.’s and S.D.C.’s birth certificates in her capacity as both Director and Registrar, violate the equal protection guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs. 40. DHEC’s discriminatory policy, as implemented through Defendant Heigel’s individual actions, violates the rights of Casy and Jacqueline and other same-sex spouses to
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equal protection by discriminating impermissibly on the basis of Casy and Jacqueline’s sexual orientation, status as a same-sex couple, and sex, and with respect to the exercise of fundamental rights and liberties secured by the Due Process Clause.
41. DHEC’s discriminatory policy, as implemented through Defendant Heigel’s individual actions, violates the rights of S.B.C. and S.D.C. and other children of same-sex spouses to equal protection by discriminating impermissibly on the basis of their parents’ sexual orientation, status as a same-sex couple, and sex, and with respect to their parents’ exercise of fundamental rights and liberties secured by the Due Process Clause.
42. Families with same-sex spouses are identical to families with different-sex spouses in every way relevant to the need for legally accurate birth certificates for children born during their marriage, including for example, the need for stability and predictability that comes with automatic recognition of each spouse’s status as a parent.
43. Defendant Heigel’s discriminatory refusal to apply the Regulation, which the Constitution requires to be read in a gender-neutral fashion, on equal terms to same-sex and different-sex spouses denies same-sex spouses and their children equal dignity and respect, and deprives their families of a critical safety net for recognizing and protecting parent-child bonds. Defendant Heigel’s discriminatory policy brands same-sex spouses and their children as secondclass citizens through a message of government-imposed stigma and fosters private bias and discrimination, by instructing all persons who interact with these families that their family relationships are less worthy than others.
44. DHEC’s discriminatory policy, as implemented through Defendant Heigel’s individual actions, also harms the children of same-sex couples by incorrectly labeling them the children of unmarried parents, depriving them of access to immediate, clear proof of their
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relationship to both parents and of the security that comes with having two parents listed on their birth certificates. Defendant Heigel’s refusal to provide these children with accurate birth certificates discriminates against and punishes these children based on their parents’ status as same-sex couples, and their parents’ sexual orientation.
45. Defendant Heigel’s discrimination against same-sex spouses and their families does not serve any legitimate governmental interest, let alone any important or compelling interests, nor does it serve any such interests in an adequately tailored manner.
SECOND CLAIM FOR RELIEF Deprivation of Due Process U.S. Const. Amend. XIV
46. Plaintiffs incorporate by reference and re-allege paragraphs 1-35 of this complaint as though fully set forth herein.
47. Plaintiffs state this cause of action against Defendant Heigel in her official capacity for purposes of seeking declaratory and injunctive relief.
48. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”
49. Defendant Heigel’s individual actions in refusing to apply S.C. Code Regs. § 6119, Sect. 8(f) on the same terms to same-sex spouses as different-sex spouses, including but not limited to her individual action in signing S.B.C. and S.D.C.’s birth certificates in her capacity as both Director and Registrar, unconstitutionally infringes on the fundamental rights and liberty interests of Plaintiffs, and other families with same-sex spouses, guaranteed by the Fourteenth Amendment.
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50. Plaintiffs have a liberty interest in their family privacy, dignity, integrity, and association, which includes the fundamental right to security in their legal parent-child bonds. Casy and Jacqueline also have a protected liberty interest in their parental autonomy, including the fundamental right to make decisions concerning when, whether, and how to have and rear their family, and concerning the care, custody, and control of their children that are presumptively in the children’s best interests.
51. The right to marry safeguards children and families, and thus is recognized by the Supreme Court as a unified whole with related rights of childrearing, procreation, and education. The Regulation’s protection for the bonds between children and their married parents is both a core right and responsibility of marriage. By declining to apply the Regulation to the children born to same-sex spouses, and depriving these families of legally accurate two-parent birth certificates, Defendant Heigel interferes with the permanency and stability important to children’s best interests, and infringes impermissibly on same-sex spouses’ fundamental liberty interests in their existing marriage, and on their fundamental parental interests.
52. There is no constitutionally adequate basis for Defendant Heigel’s decision to infringe on the fundamental rights and liberty interests of same-sex spouses and their children, let alone an interest that can survive the heightened scrutiny required to justify infringement of those fundamental rights and liberty interests.
DECLARATORY AND INJUNCTIVE RELIEF 28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure, Rules 57 and 65 53. Plaintiffs incorporate by reference and re-allege paragraphs 1-35 of this complaint as though fully set forth herein. 54. This case presents an actual controversy because Defendant Heigel’s present and ongoing denial of equal treatment to Plaintiffs subjects them to serious and immediate harms,
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warranting the issuance of a declaratory judgment. 55. Plaintiffs seek preliminary and permanent injunctive relief to protect their
constitutional rights and avoid the injuries described above. A favorable decision enjoining Defendant Heigel’s discriminatory actions would redress and prevent the irreparable injuries to Plaintiffs identified herein, for which Plaintiffs have no adequate remedy at law or in equity.
56. Defendant Heigel will incur little to no burden in applying the Regulation to same-sex spouses on the same terms as she applies the Regulation to different-sex spouses, whereas the hardship for Plaintiffs of being denied equal treatment and due process is severe, subjecting them to an irreparable denial of their constitutional rights. The balance of hardships thus tips strongly in favor of Plaintiffs.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter judgment: A. Declaring that Defendant Heigel’s refusal to apply S.C. Code Regs. § 61-19, Sect. 8(f) in a gender-neutral fashion on equal terms to same-sex spouses and their children, and refusal to issue legally accurate birth certificates listing both same-sex spouses as parents of their children born during marriage, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; B. Preliminarily and permanently enjoining Defendant Heigel, along with Defendant Heigel’s officers, employees, and agents, all persons acting in active concert or participation with Defendant Heigel, and all persons under Defendant Heigel’s supervision, direction, or control, from (1) refusing to apply S.C. Code Regs. § 61-19, Sect. 8(f) in a gender-neutral fashion on the same terms to same-sex spouses and their children as different-sex spouses and their children,
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and from (2) refusing to issue accurate birth certificates listing both same-sex spouses as parents of their children born during marriage;
C. Ordering Defendant Heigel in her official capacity, along with Defendant Heigel’s officers, employees, and agents, all persons acting in active concert or participation with Defendant Heigel, and all persons under Defendant Heigel’s supervision, direction, or control, to issue a corrected birth certificate to Casy and Jacqueline listing both of them as parents to S.B.C. and S.D.C. without charging any fees that otherwise might apply to a corrected birth certificate; to issue birth certificates listing same-sex spouses as parents on the same terms as different-sex spouses under Code Regs. § 61-19, Sect. 8(f); and to issue accurate birth certificates upon request to same-sex spouses previously denied them without charging any fees that otherwise might apply to a corrected birth certificate;
D. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988 and other applicable laws; and
E. Granting such other and further relief as the Court deems just and proper.

DATED: January 27, 2016

Respectfully submitted,

THE FINNEY LAW FIRM, INC.

s/ Jerry Leo Finney, Sr.

.

Jerry Leo Finney, Sr., Fed. I.D. No. 6489

2117 Park Street

Columbia, South Carolina 29201

Phone: (803) 254-7408

Fax: (803) 254-1941

jlfinney@bellsouth.net

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
Tara L. Borelli (Admitted pro hac vice) 730 Peachtree Street, NE, Suite 1070 Atlanta, Georgia 30308 Phone: (404) 897-1880 Fax: (404) 897-1884 tborelli@lambdalegal.org

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3:16-cv-00045-MGL Date Filed 01/27/16 Entry Number 12 Page 17 of 18

BRYAN CAVE, LLP
William V. Custer* Jennifer B. Dempsey* Luke A. Lantta* 1201 W. Peachtree St., N.W., 14th Floor Atlanta, Georgia 30309 Phone: (404) 572 6600 Fax: (404) 572 6999 bill.custer@bryancave.com Jennifer.dempsey@bryancave.com luke.lantta@bryancave.com

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
Susan L. Sommer (Admitted pro hac vice) 120 Wall Street, 19th Floor New York, New York 10005 Phone: (212) 809-8585 Fax: (212) 809-0055 ssommer@lambdalegal.org
SC EQUALITY COALITION, INC.
Colleen Condon, Fed. I.D. No. 9034 CONDON LAW FIRM, LLC 3 Gamecock Avenue, Suite 301 Charleston, South Carolina 29407 Phone: (843) 225-7288 Fax: (843) 225-7289 colleen@colleencondonlaw.com

* Pro hac vice applications forthcoming

Counsel for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on January 27, 2016, I served the foregoing document by causing a

copy to be placed in a sealed envelope for delivery by Federal Express service, addressed as

follows:

John Harleston, Esq. Office of General Counsel South Carolina Department of Health and Environmental Control 2600 Bull Street Columbia, SC 29201 Attorneys for Defendant Catherine E. Heigel

THE FINNEY LAW FIRM, INC.

s/ Jerry Leo Finney, Sr.

.

Jerry Leo Finney, Sr., S.C. Bar No. 6489

2117 Park Street

Columbia, South Carolina 29201

Phone: (803) 254-7408

Fax: (803) 254-1941

jlfinney@bellsouth.net

Attorneys for Plaintiffs Casy Carson and Jacqueline

Carson, on their own behalf and as next friends of

S.B.C. and S.D.C.

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

CASY CARSON and JACQUELINE

'

CARSON, on their own behalf and as next '

friends of S.B.C. and S.D.C.,

'

Plaintiffs,

'

'

vs.

'

'

CATHERINE E. HEIGEL, in her official

'

capacity as Director of the South Carolina

'

Department of Health and Environmental

'

Control and State Registrar of Vital Statistics, '

Defendant.

'

CIVIL ACTION NO. 3:16-0045-MGL

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS= MOTION FOR SUMMARY JUDGMENT ON THE MERITS
AND FOR DECLARATORY JUDGMENT AND RENDERING AS MOOT PLAINTIFFS= REQUEST FOR INJUNCTIVE RELIEF

I. INTRODUCTION Plaintiffs Casy and Jacqueline Carson, on their own behalf and as next friends of S.B.C.
and S.D.C., bring this action against Defendant Catherine E. Heigel in her official capacity as Director of the South Carolina Department of Health and Environmental Control and as State Registrar of Vital Statistics. The parties are represented by excellent counsel.
Plaintiffs allege violations of their rights under the Fourteenth Amendment to the United States Constitution. They seek both declaratory and injunctive relief. The Court has federal question jurisdiction over Plaintiffs= claims under 28 U.S.C. ' 1331.

Pending before the Court is Plaintiffs= motion for summary judgment. Having considered the motion, the response, the reply, the record, and the applicable law, the Court will grant the motion as to the merits and declaratory judgment portions of the motion and render as moot Plaintiff=s request for injunctive relief.
II. FACTUAL AND PROCEDURAL HISTORY Plaintiffs are married and the same-sex parents of their twins, S.B.C. and S.D.C. Plaintiff
Jacqueline Carson became pregnant with their children by means of artificial insemination. Under the current practice of Defendant, Plaintiff Jacqueline Carson, as the birth mother of the twins, is listed as a parent on S.B.C.=s and S.D.C.=s birth certificates, but the birth certificates fail to name Plaintiff Jacqueline Carson=s spouse, Plaintiff Casy Carson. Under the same circumstances, if Plaintiffs were an opposite-sex married couple, both of their names would be listed on the birth certificates. With this lawsuit, Plaintiffs seek to modify Defendant=s practice in this regard.
After Plaintiffs filed their complaint with this Court, they filed the instant motion for summary judgment. The Court, having been fully briefed on the relevant issues, is prepared to adjudicate the motion.
III. STANDARD OF REVIEW Summary judgment is appropriate only Aif the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.@ Fed. R. Civ. P. 56(a). In deciding whether a genuine issue of material fact exists, the evidence of the
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non-moving party is to be believed and all justifiable inferences must be drawn in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A party asserting that a fact is genuinely disputed must support the assertion by Aciting to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.@ Fed. R. Civ. P. 56(c)(1)(A). A litigant Acannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.@ Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Therefore, A[m]ere unsupported speculation . . . is not enough to defeat a summary judgment motion.@ Ennis v. Nat=l Ass=n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
A[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.@ Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1996). ASummary judgment is proper only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts.@ Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). The court must determine Awhether the evidence presents a sufficient
3

disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.@ Anderson, 477 U.S. at 251-52.
IV. CONTENTIONS OF THE PARTIES Plaintiffs maintain Defendant=s refusal to treat same-sex spouses the same as opposite-sex
spouses in the issuance of birth certificates violates Obergefell v. Hodges, 135 S. Ct. 2584 (2015), as well as other binding precedent. Plaintiffs also contend Defendant=s refraining from naming both Plaintiffs on their twins= birth certificates is violative of their fundamental right to marry and other protected liberties. According to Plaintiffs, Defendant=s granting birth certificates identifying non-genetic fathers but refraining to name non-genetic mothers as parents of children born to their female spouses violates Plaintiffs= rights to Equal Protection.
Plaintiffs argue Defendant=s policy discriminates on the basis of sex and sexual orientation. Plaintiffs assert Defendant is also discriminating against S.B.C. and S.D.C., as well as the children of other same-sex parents. Plaintiffs aver Defendant has neither a legitimate nor compelling interest in denying marital children of same-sex spouses birth certificates with both parents named on them. Plaintiffs further assert the undisputed evidence establishes Plaintiffs are entitled to declaratory and injunctive relief.
Defendant agrees there is no genuine issue of material fact present here. She fails to contest Plaintiffs= constitutional arguments or their right to declaratory judgment. Instead, Defendant urges the Court to deny Plaintiffs= request for injunctive relief. Defendant avows injunctive relief is an inappropriate remedy.
4

V. DISCUSSION AND ANALYSIS The Court agrees with Plaintiffs= constitutional arguments, which Defendant has failed to
contest. Thus, the Court will grant both the merits and the declaratory judgment portions of Plaintiff’s motion for summary judgment.
With the Order, the Court declares Defendant’s failure to treat same-sex spouses in the same manner she treats opposite-sex spouses in the issuance of birth certificates violates Plaintiffs’ rights under the Fourteenth Amendment to the United States Constitution. More specifically, this Court refuses to countenance Defendant’s refusal to name both Plaintiffs on their twins’ birth certificates. Defendant’s present practice is violative of Plaintiffs’ fundamental right to marriage and other protected liberties. With that declaration, the only issue left for the Court to decide is whether injunctive relief is appropriate.
Subsequent to the parties’ briefing of this motion, they agreed to enter into a consent decree detailing the manner in which they will secure the relief Plaintiffs initially sought via injunctive relief. The consent decree, which the Court will file within ten days of the filing of this Order, renders Plaintiffs= request for injunctive relief moot.
VI. CONCLUSION Therefore, based on the foregoing discussion and analysis, the portion of Plaintiffs= motion
for summary judgment concerning the merits of their constitutional claims and declaratory judgment is GRANTED and the section of Plaintiff=s motion for summary judgment seeking injunctive relief is RENDERED MOOT.
5

IT IS SO ORDERED. Signed this 15th day of February, 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE
6

 
 3:16-cv-00045-MGL Date Filed 02/28/17 Entry Number 37 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

CASY CARSON and JACQUELINE

'

CARSON, on their own behalf and as next '

friends of S.B.C. and S.D.C.,

'

Plaintiffs,

'

'

vs.

'

'

CATHERINE E. HEIGEL, in her official

'

capacity as Director of the South Carolina

'

Department of Health and Environmental

'

Control and State Registrar of Vital Statistics, '

Defendant.

'

CIVIL ACTION NO. 3:16-0045-MGL

CONSENT DECREE

Casy Carson and Jaqueline Carson (Plaintiffs) instituted this action on behalf of their minor children, S.B.C. and S.D.C., pursuant to 42 U.S.C. § 1983, to redress the deprivation under color of state law of rights secured by the United States Constitution, including due process and equal protection deprivations pursuant to the Fourteenth Amendment to the United States Constitution following the Supreme Court of the United States’ ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
Plaintiffs’ Complaint alleged Defendant Catherine E. Heigel, named in her official capacity as Director of the South Carolina Department of Health and Environmental Control and State Registrar of Vital Statistics (collectively DHEC or Defendant), failed to apply S.C. CODE ANN.

1

3:16-cv-00045-MGL Date Filed 02/28/17 Entry Number 37 Page 2 of 7
REGS. 61-19 § 8(f)(1) and (5) equally to Plaintiffs for the purpose of issuance of birth certificates to same-sex spouses in violation of the Supreme Court’s ruling in Obergefell v. Hodges and the Fourteenth Amendment. In its February 15, 2017 Order, this Court declared “Defendant’s failure to treat same-sex spouses in the same manner she treats different-sex spouses in the issuance of birth certificates violates Plaintiffs’ rights under the Fourteenth Amendment to the United States Constitution.” ECF No. 36 at 5.
Based on the findings of this Court, made on the pleadings and the record as a whole, the parties agree: (1) the Court has jurisdiction over the parties and the subject matter of this action; (2) the purpose of the Fourteenth Amendment to the United States Constitution will be promoted and effectuated by the entry of the Consent Decree; and (3) this Consent Decree resolves all matters in controversy between the parties, except for attorney’s fees and costs, which are addressed in paragraph 12 below. In accordance with this Court’s Order, the parties have agreed to enter and be bound by the present Consent Decree, which details the manner that will secure the relief sought by Plaintiffs.
WHEREFORE, IT IS HEREBY ORDERED hereafter, the Defendant shall prepare and issue birth certificates in the State of South Carolina in compliance with the following directives:
1. DHEC shall apply all rules, procedures, policies and practices relating to the issuance of birth certificates to same-sex spouses on the same terms as it applies them to differentsex spouses.
2. The birth mother will be listed on the original birth record as the “Mother” of a child born in the State of South Carolina.
2

3:16-cv-00045-MGL Date Filed 02/28/17 Entry Number 37 Page 3 of 7
3. When the birth mother is married at the time of conception, birth, or any time between conception and birth, her spouse will be presumed to be the other parent.
4. Excluding instances of surrogate births, the spouse of the birth mother will be entered on the birth record as the other parent of the child. See Exhibit 1 (the attached Ex. 1 provides additional details for birth clerks and the general public regarding the forthcoming changes to vital statistics record-keeping policy related to how birth records will be entered for children born in this State to married same-sex couples).
5. Immediately upon entry of this Consent Decree, Defendant will issue two-parent birth certificates to married same-sex parents on the same terms, and using the same protocols, as two-parent certificates are provided to married, different-sex parents.
6. Defendant will modify its existing vital records system to allow updates to its current systems and forms so the first parent is listed as “Mother/ Parent,” and the second parent is listed as “Father/Parent.” See Ex. 1. If DHEC has not completed these updates by June 15, 2017, Defendant shall provide a written status report to the Court and Plaintiffs explaining DHEC’s good faith efforts to modify its system, and providing an estimate of the date by which these updates will be completed. Once these gender-neutral birth certificates are available, upon the request of either parent or legal representative of a child who in the past did not receive a birth certificate correctly identifying both same-sex spouses as parents, or who did not receive a gender neutral birth certificate, a corrected birth certificate will be provided to the requesting party free of charge. The corrected birth certificate will be provided within twenty-one (21) days of receipt of the completed application, including satisfactory documentation of fact and date of marriage, second parent’s full name to be listed on the certificate, and second parent’s date and place of birth.
3

3:16-cv-00045-MGL Date Filed 02/28/17 Entry Number 37 Page 4 of 7

Certified copies of the second parent’s marriage certificate and birth certificate will be accepted as

satisfactory documentation. In addition to the change to the current system referenced above,

DHEC will continue with its ongoing procurement process to acquire a new vital records system

to replace the current system and will update Exhibit 1 as appropriate to reflect changes made by

the system, which will include options to list “Mother/Father/Parent” for either parent.

7.

Defendant will also institute updates to allow the Mother’s Worksheet for Child’s

Birth Certificate completed at hospitals to be recorded in a gender-neutral fashion, and will replace

the word “husband” with “spouse.”

8. Within two (2) business days from the entry of this Consent Decree, Defendant will

issue corrected birth certificates via United States Mail Service to Plaintiffs’ mailing address.

This corrected birth certificate will be provided without charge.

9. Defendants will make Ex. 1 available to the public on its website

(www.scdhec.gov) for a period of two years following the entry of this Consent Decree.

10. Any individuals who otherwise met the requirements outlined in Ex. 1 for inclusion

on a birth certificate issued in this State under the updated protocol, but were previously denied

issuance of a birth certificate listing both same-sex spouses as parents may obtain a corrected birth

certificate without any additional charges or fees, and may contact DHEC at (803) 898-3630 or in

person at 2600 Bull Street, Columbia, South Carolina 29201 for more information.

11. This Court shall retain jurisdiction of this case for purposes of monitoring

compliance with, and enforcing, this Consent Decree, and entry of such further orders as may be

necessary or appropriate for construction or implementation of this Consent Decree.

4

3:16-cv-00045-MGL Date Filed 02/28/17 Entry Number 37 Page 5 of 7 12. Attorney’s fees and costs shall be determined pursuant to Fed. R. Civ. P. 54 and
Local Civ. Rule (D.S.C.) 54.02 - 54.03, and Plaintiffs shall have until 45 days after entry of this Consent Decree to submit their motion for fees and costs. Defendant shall have thirty days to respond.
Signed this 28th day of February, 2017 in Columbia, South Carolina. /s/ Mary Geiger Lewis MARY GEIGER LEWIS UNITED STATES DISTRICT JUDGE
The parties jointly request the Court approve and enter the Consent Decree.
[Signatures on following pages] 5

3:16-cv-00045-MGL Date Filed 02/28/17 Entry Number 37 Page 6 of 7

THE FINNEY LAW FIRM, INC.

Respectfully submitted,

s/Jerry Leo Finney, Sr. Jerry Leo Finney, Sr., Fed. I.D. No. 6489 2117 Park Street Columbia, South Carolina 29201 Phone: (803) 254-7408 Fax: (803) 254-1941 jlfinney@bellsouth.net
BRYAN CAVE, LLP

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
Tara L. Borelli (Admitted pro hac vice) 730 Peachtree Street, NE, Suite 1070 Atlanta, Georgia 30308 Phone: (404) 897-1880 Fax: (404) 897-1884 tborelli@lambdalegal.org

William V. Custer (Admitted pro hac vice) Jennifer B. Dempsey (Admitted pro hac vice) Luke A. Lantta (Admitted pro hac vice) 1201 W. Peachtree St., N.W., 14th Floor Atlanta, Georgia 30309 Phone: (404) 572-6600 Fax: (404 572-6999 Bill.custer@bryancave.com Jennifer.dempsey@bryancave.com Luke.lantta@bryancave.com

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
Susan L. Sommer (Admitted pro hac vice) 120 Wall Street, 19th Floor New York, New York 10005 Phone: (212) 809-8585 Fax: (212) 809-0055 ssommer@lambdalegal.org

SC EQUALITY COALITION, INC.

Colleen Condon, Fed. I.D. No. 9034 CONDON LAW FIRM, LLC 3 Gamecock Avenue, Suite 301 Charleston, South Carolina 29407 Phone: (843) 225-7288 Fax: (843) 225-7289 colleen@colleencondonlaw.com

Counsel for Plaintiffs

6

3:16-cv-00045-MGL Date Filed 02/28/17 Entry Number 37 Page 7 of 7

s/Nikole Setzler Mergo

W. Leighton Lord III

Fed ID No. 6357

Nikole Setzler Mergo

Fed ID No. 7410

NEXSEN PRUET, LLC

1230 Main Street, Suite 700 (29201)

Post Office Box 2426

Columbia, SC 29202

Phone: (803) 771-8900

Facsimile: (803) 253-8277

llord@nexsenpruet.com

nmergo@nexsenpruet.com

Attorneys for Defendant South Carolina Department of Health and Environmental Control and State Registrar of Vital

7

3:16-cv-00045-MGL Date Filed 02/28/17 Entry Number 37-1 Page 1 of 2
February 24, 2017
RE: SAME-SEX PARENTAGE AND BIRTH REGISTRATION
The mission of the Department of Health and Environmental Control is to protect and promote the health of the public and the environment in South Carolina. Maintaining accurate vital statistics is a valuable tool in accomplishing this mission.
South Carolina’s statutes and regulations on registration of births focus primarily on collecting and recording the actual facts of birth. Under DHEC regulations, a person who physically gives birth is considered the child’s birth mother and would be identified as such on the original birth record. When the birth mother is married at the time of conception, birth, or any time between conception and birth, the birth mother’s spouse is presumed to be the other parent, and ordinarily should be entered on the birth record as the other parent of the child, except in the case of surrogate births. This designation is made regardless of whether the spouse is male or female. Following this protocol allows DHEC both to keep accurate vital statistics for our state and to create birth certificates that provide for proper identification of legal parentage.
A birth certificate may include two men or two women as the parents of a child born to a surrogate mother in the same way that a man and a woman would be listed as parents of a child born to a surrogate mother. Guidance on birth registration for children born to surrogates is described in a separate guidance document.
Birth certificate forms in DHEC’s existing registration system require an entry for mother and father. Until changes are made to the system, when both parents are of the same sex, the biological parent will be entered as appropriate. For example, if the parents are both male, the biological father will be listed as “Father” and the second parent as “Mother.” If the parents are both female, the biological mother will be listed as “Mother” and the second parent as “Father.”
Beginning March 1, 2017, upon the request of either parent or legal representative of a child who in the past received a birth certificate that identified only one parent, when application of this new procedure would have listed both same-sex spouses as parents, a corrected birth certificate listing both parents will be provided to the requesting party free of charge. The corrected birth certificate will be provided within twenty-one (21) days of receipt of the completed application, including satisfactory documentation of the fact and date of marriage, second parent’s full name to be listed on the certificate, and second parent’s date and place of birth. Certified copies of the second parent’s marriage certificate and birth certificate will be accepted as satisfactory documentation.

3:16-cv-00045-MGL Date Filed 02/28/17 Entry Number 37-1 Page 2 of 2
If neither individual seeking to be listed on the birth certificate is the child’s biological parent, a certificate of adoption would be required to add either or both as parents. For more information or questions, you may contact Angie Saleeby, Director of Vital Records, at 803-898-3635, vitalrecords@dhec.sc.gov.

 
 Case: 3:16-cv-45 As of: 05/11/2017 01:11 PM EDT 1 of 5

U.S. District Court District of South Carolina (Columbia) CIVIL DOCKET FOR CASE #: 3:16−cv−00045−MGL

CLOSED

Carson et al v. Heigel Assigned to: Honorable Mary Geiger Lewis Cause: 42:1983 Civil Rights Act
Plaintiff Casy Carson on their own behalf and as next friends of S.B.C. and S.D.C.

Date Filed: 01/07/2016 Date Terminated: 02/28/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Colleen Therese Condon Condon Law Firm 3 Gamecock Avenue Suite 301 Charleston, SC 29407 843−225−7288 Fax: 843−225−7289 Email: colleen@colleencondonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerry Leo Finney Finney Law Firm 2117 Park Street Columbia, SC 29201 803−254−7408 Fax: 803−254−1941 Email: jlfinney@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Burch Dempsey Bryan Cave 1201 W Peachtree Street NW 14th Floor Atlanta, GA 30309 404−572−6985 Fax: 404−572−6999 Email: jennifer.dempsey@bryancave.com PRO HAC VICE ATTORNEY TO BE NOTICED
Luke A Lantta Bryan Cave 1201 W Peachtree Street NW 14th Floor Atlanta, GA 30309 404−572−6868 Fax: 404−572−6999 Email: luke.lantta@bryancave.com PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Laurie Sommer Lambda Legal Defense and Education Fund Inc 120 Wall Street 19th Floor New York, NY 10005 212−809−8585 Fax: 212−809−0055

Case: 3:16-cv-45 As of: 05/11/2017 01:11 PM EDT 2 of 5

Plaintiff
Jaqueline Carson on their own behalf and as next friends of S.B.C. and S.D.C.

Email: ssommer@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Tara Lynn Borelli Lambda Legal Defense and Education Fund Inc 730 Peachtree Street NE Suite 640 Atlanta, GA 30308 470−225−5341 Fax: 404−897−1884 Email: tborelli@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
William Vance Custer Bryan Cave 1201 W Peachtree Street NW 14th Floor Atlanta, GA 30309 404−572−6828 Fax: 404−572−6999 Email: bill.custer@bryancave.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Colleen Therese Condon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerry Leo Finney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Burch Dempsey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Luke A Lantta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Laurie Sommer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tara Lynn Borelli (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William Vance Custer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:16-cv-45 As of: 05/11/2017 01:11 PM EDT 3 of 5

V.
Defendant
Catherine E. Heigel in her official capacity as Director of the South Carolina Department of Health and Environmental Control and State Registrar of Vital Statistics

represented by John Harleston SC Department of Health and Environmental Control 2600 Bull Street Columbia, SC 29201 803−898−3365 Email: harlesj@dhec.sc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nikole Setzler Mergo Nexsen Pruet Jacobs and Pollard PO Drawer 2426 Columbia, SC 29202 803−771−8900 Fax: 803−253−8277 Email: nmergo@nexsenpruet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Leighton Lord , III Nexsen Pruet (Cola) PO Drawer 2426 Columbia, SC 29201 803−540−2013 Fax: 803−727−1461 Email: llord@nexsenpruet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/07/2016 01/07/2016 01/07/2016 01/13/2016
01/13/2016
01/14/2016 01/14/2016

# Docket Text
1 COMPLAINT against Catherine Heigel (Filing fee $400 receipt number 0420−6336412) filed by Casy Carson, Jaqueline Carson. Service due by 4/11/2016(cbru, ) (Entered: 01/07/2016)
3 Local Rule 26.01 Answers to Interrogatories by Casy Carson, Jaqueline Carson.(cbru, ) (Entered: 01/07/2016)
4 Summons Issued as to Catherine Heigel. (cbru, ) (Entered: 01/07/2016)
5 MOTION to Appear Pro Hac Vice by Tara Borelli ( Filing fee $ 250 receipt number 0420−6346460) by Casy Carson, Jaqueline Carson. Response to Motion due by 2/1/2016. (Attachments: # 1 Pro Hac Vice Application, # 2 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counsel.(Finney, Jerry) (Main Document 5 replaced on 1/13/2016) (cbru, ). Additional attachment filed as entry 9 on 1/14/2016 (cbru, ). (Entered: 01/13/2016)
6 MOTION to Appear Pro Hac Vice by Susan Sommer ( Filing fee $ 250 receipt number 0420−6346550) by Casy Carson, Jaqueline Carson. Response to Motion due by 2/1/2016. (Attachments: # 1 Pro Hac Vice Application, # 2 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counsel.(Finney, Jerry) (Main Document 6 replaced on 1/13/2016) (cbru, ). (Entered: 01/13/2016)
8 TEXT ORDER granting 6 Motion to Appear Pro Hac Vice. Signed by Honorable Mary Geiger Lewis on 1/14/2016.(cbru, ) (Entered: 01/14/2016)
9 Additional Attachments to Main Document 5 MOTION to Appear Pro Hac Vice by Tara Borelli (Filing fee $250 receipt number 0420−6346460). First attachment description: Certificate of Good Standing for Tara Borelli.(Finney, Jerry) Modified

Case: 3:16-cv-45 As of: 05/11/2017 01:11 PM EDT 4 of 5

01/15/2016 01/27/2016 01/27/2016
01/27/2016
01/27/2016
01/27/2016 02/16/2016 03/21/2016 03/28/2016
03/28/2016 03/28/2016 03/29/2016

to remove duplicative document and to edit text on 1/14/2016 (cbru, ). (Entered: 01/14/2016)
11 TEXT ORDER granting 5 Motion to Appear Pro Hac Vice. Signed by Honorable Mary Geiger Lewis on 1/15/2016.(cbru, ) (Entered: 01/15/2016)
12 AMENDED COMPLAINT against All Defendants, filed by Casy Carson, Jaqueline Carson. Service due by 4/29/2016 (Finney, Jerry) (Entered: 01/27/2016)
13 MOTION to Appear Pro Hac Vice by William V. Custer (Filing fee $250 receipt number 0420−6368487) by Casy Carson, Jaqueline Carson. Response to Motion due by 2/16/2016. (Attachments: # 1 Application/Affidavit and Certificates of Good Standing, # 2 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counsel.(Finney, Jerry) Modified to edit text on 1/27/2016 (cbru, ). (Entered: 01/27/2016)
14 MOTION to Appear Pro Hac Vice by Jennifer Burch Dempsey (Filing fee $250 receipt number 0420−6368527) by Casy Carson, Jaqueline Carson. Response to Motion due by 2/16/2016. (Attachments: # 1 Application/Affidavit and Certificates of Good Standing, # 2 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counsel.(Finney, Jerry) Modified to edit text on 1/27/2016 (cbru, ). (Entered: 01/27/2016)
15 MOTION to Appear Pro Hac Vice by Luke A. Lantta (Filing fee $250 receipt number 0420−6368542) by Casy Carson, Jaqueline Carson. Response to Motion due by 2/16/2016. (Attachments: # 1 Application/Affidavit and Certificates of Good Standing, # 2 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counsel.(Finney, Jerry) Modified to edit text on 1/27/2016 (cbru, ). (Entered: 01/27/2016)
16 TEXT ORDER granting 13 Motion to Appear Pro Hac Vice; granting 14 Motion to Appear Pro Hac Vice; granting 15 Motion to Appear Pro Hac Vice. Signed by Honorable Mary Geiger Lewis on 1/27/2016.(cbru, ) (Entered: 01/27/2016)
17 WAIVER OF SERVICE by Casy Carson, Jaqueline Carson. Catherine E. Heigel waiver executed on 1/27/2016, answer due 3/28/2016. (Finney, Jerry) (Main Document 17 replaced on 2/16/2016) (cbru, ). (Additional attachment(s) added on 2/16/2016: # 1 Waiver of Service) (cbru, ). (Entered: 02/16/2016)
19 NOTICE of Appearance by Colleen Therese Condon on behalf of Casy Carson, Jaqueline Carson (Attachments: # 1 Certificate of Service)(Condon, Colleen) (Attachment 1 replaced on 3/28/2016) (cbru, ). (Entered: 03/21/2016)
20 Deficiency Notification (Prior notifications sent via e−mail)In Re Document Number:19 Document (certificate of service) contains an incorrect signature: *Only attorneys that are both admitted to practice in this district and are ECF registered are allowed to utilize the "s/" signature.* Any response due is based on the filing date of the original document. (cbru, ) (Entered: 03/28/2016)
21 ANSWER to 12 Amended Complaint by Catherine E. Heigel. (Attachments: # 1 Exhibit 1 − DHEC Memorandum Re: Surrogate Births and Birth Registration, # 2 Exhibit 2 − DHEC Memorandum Re: Same−Sex Parentage and Birth Registration)(Mergo, Nikole) (Entered: 03/28/2016)
22 Local Rule 26.01 Answers to Interrogatories by Catherine E. Heigel.(Mergo, Nikole) (Entered: 03/28/2016)
24 CONFERENCE AND SCHEDULING ORDER: Rule 26 Report due by 5/2/2016, Motions to Amend Pleadings due by 5/27/2016, Plaintiffs ID of Expert Witness due by 6/27/2016, Defendants ID of Expert Witnesses Due by 7/26/2016, Records Custodian Affidavit due by 7/26/2016, Discovery due by 9/26/2016, Motion in Limine due by 1/9/2017, Motions due by 10/11/2016, Rule 26(a)(3) Disclosures due by 12/28/2016, Bench Trial Deadline 1/30/2017, Mediation Due by 12/8/2016. Signed by Honorable Mary Geiger Lewis on 3/29/2016. (cbru, ) (Entered: 03/29/2016)

Case: 3:16-cv-45 As of: 05/11/2017 01:11 PM EDT 5 of 5

03/29/2016 05/02/2016 05/02/2016 05/03/2016 05/31/2016
06/29/2016 07/18/2016 02/15/2017
02/28/2017 02/28/2017 02/28/2017 04/14/2017
04/17/2017

25 MEDIATION ORDER. Signed by Honorable Mary Geiger Lewis on 3/29/2016. (cbru, ) (Entered: 03/29/2016)
27 Joint Rule 26(f) Report by Casy Carson, Jaqueline Carson, Catherine E. Heigel. (Attachments: # 1 Exhibit A − Proposed Consent Amended Scheduling Order)(Finney, Jerry) Modified to add filer listed on document on 5/3/2016 (cbru, ). (Entered: 05/02/2016)
28 Joint Local Rule 26.03 Answers to Interrogatories by Casy Carson, Jaqueline Carson, Catherine E. Heigel.(Finney, Jerry) Modified to add filer listed on document on 5/3/2016 (cbru, ). (Entered: 05/02/2016)
29 CONSENT AMENDED SCHEDULING ORDER (Plaintiffs' Motion for Summary Judgment due by 5/31/2016, Response to Motion due by 6/29/2016, Reply to Response to Motion due by 7/18/2016) Signed by Honorable Mary Geiger Lewis on 5/3/2016. (cbru, ) (Entered: 05/03/2016)
31 MOTION for Summary Judgment by Casy Carson, Jaqueline Carson. Response to Motion due by 6/17/2016. (Attachments: # 1 Memo in Support of Summary Judgment, # 2 Exhibit List, # 3 Exhibit A − Affidavit of Jerry Leo Finney, Sr., # 4 Exhibit B − Affidavit of Frederick Corley, # 5 Exhibit C − Affidavit of Casy Carson, # 6 Exhibit D − Affidavit of Jacqueline Carson)No proposed order.(Finney, Jerry) (Entered: 05/31/2016)
33 RESPONSE in Opposition re 31 MOTION for Summary Judgment Response filed by Catherine E. Heigel.Reply to Response to Motion due by 7/11/2016 (Attachments: # 1 Exhibit 1−Affidavit of Shae R. Sutton)(Mergo, Nikole) (Entered: 06/29/2016)
34 REPLY to Response to Motion re 31 MOTION for Summary Judgment Response filed by Casy Carson, Jaqueline Carson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Henderson v. Adams Injunction, # 3 Exhibit B − Roe v. Patton Injunction, # 4 Exhibit C − Henry v. Himes Injunction)(Finney, Jerry) (Entered: 07/18/2016)
36 MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS' 31 MOTION FOR SUMMARY JUDGMENT ON THE MERITS AND FOR DECLARATORY JUDGMENT AND RENDERING AS MOOT PLAINTIFFS' REQUEST FOR INJUNCTIVE RELIEF. Signed by Honorable Mary Geiger Lewis on 2/15/2017. (cbru, ) (Document replaced to correct misaligned signature block on 2/27/2017) (cbru, ). (Entered: 02/15/2017)
37 CONSENT DECREE. Signed by Honorable Mary Geiger Lewis on 2/28/2017. (Attachments: # 1 Exhibit 1)(cbru, ) (Entered: 02/28/2017)
38 TEXT ORDER: The consent decree having been entered, the Court hereby dismisses the injunctive relief requested in the second cause of action without prejudice. Signed by Honorable Mary Geiger Lewis on 2/28/2017. (cbru, ) (Entered: 02/28/2017)
39 SUMMARY JUDGMENT in favor of plaintiff against defendant as to the first cause of action and as to the declaratory relief requested in the second cause of action; JUDGMENT dismissing the injunctive relief requested in the second cause of action without prejudice (cbru, ) (Entered: 02/28/2017)
40 MOTION for Attorney Fees and Costs by Casy Carson, Jaqueline Carson. Response to Motion due by 4/28/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support of Motion for Attorneys' Fees and Costs, # 2 Exhibit List, # 3 Exhibit A − Condon Order Granting Fees, # 4 Exhibit B − Affidavit of T. Borelli, # 5 Exhibit C − Affidavit of S. Sommer, # 6 Exhibit D − Affidavit of J. Finney, # 7 Exhibit E − Affidavit of C. Condon, # 8 Exhibit F − Affidavit of N. Shutt)No proposed order.(Finney, Jerry) (Entered: 04/14/2017)
41 CERTIFICATE OF CONSULTATION byCasy Carson, Jaqueline Carson re 40 MOTION for Attorney Fees and Costs. (Finney, Jerry) (Entered: 04/17/2017)