Opinion
Action by two females seeking declaration of their alleged constitutional right to marry each other and an order compelling county clerk to issue application for marriage license. The District Court, Myron L. Gordon, J., held that where county clerk moved to dismiss complaint and plaintiffs failed to submit any answering brief in response so that court would have to speculate on plaintiffs' arguments in the relatively novel area of the law, plaintiffs' omission imposed improper burden upon the court and defendant's motion would be granted.
Dismissed.
James C. Wood, Milwaukee, Wis., for plaintiffs.
Robert P. Russell, Milwaukee County Corporation Counsel, by John R. Devitt, Asst. Corp. Counsel, Milwaukee, Wis., for defendant.
DECISION and ORDER
MYRON L. GORDON, District Judge.
The plaintiffs in this action are two females who seek a declaration of their alleged constitutional right to marry each other and an order compelling the clerk of Milwaukee county to issue them an application for a marriage license. The plaintiffs contend that the right to marry a person of the same sex is guaranteed to them by the United States Constitution.
The defendant, clerk of Milwaukee county, has moved to dismiss the instant complaint for lack of a substantial federal question, for lack of jurisdiction over the subject matter, and for failure to state a claim upon which relief can be granted. The court established a briefing schedule in connection with this motion, and the defendant filed his brief in accordance with that schedule. However, the plaintiffs have failed to submit any answering brief in response to the defendant's supporting brief. The absence of any memorandum of law on the part of the plaintiffs would require the court to speculate on the plaintiffs' arguments in this relatively novel area of the law. Two recent rulings on this general topic are found in McConnell v. Anderson, 451 F.2d 193 (8th Cir. 1971) and Baker v. Nelson, 191 N.W.2d 185 (Minn.1971).
The plaintiffs' omission, in my opinion, imposes an improper burden upon the court; under Rule 8 of our local rules, as authorized by Rule 83, Federal Rules of Civil Procedure, the defendant's motion will therefore be granted.