In The United States Court of Appeals For The Seventh Circuit

Nos.
14-2386, 14-2387, 14-2388

In The United States Court of Appeals
For The Seventh Circuit

MARILYN RAE BASKIN, et al.,
Plaintiffs-Appellees,
v.

GREG ZOELLER, et al.,
Defendants-Appellants.

MIDORI FUJII, et al.,
v.

COMMISSIONER OF THE INDIANA STATE DEPARTMENT OF REVENUE,
in his official capacity, et al.,

PAMELA LEE, et al.,
v.

BRIAN ABBOTT, et al.,

On Appeal From The United States District Court
For The Southern District of Indiana
Case Nos. 1:14-cv-00355-RLY-TAB,
1:14-cv-00404-RLY-TAB, 1:14-cv-00406-RLY-MJD
The Honorable Richard L. Young Presiding

SUPPLEMENTAL APPENDIX OF PLAINTIFFS-APPELLEES
VOL. 1 OF 2
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (1 of 518)

Paul D. Castillo (Counsel of Record)
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
3500 Oak Lawn Avenue, Suite 500
Dallas, Texas 75219

Jordan M. Heinz
Brent P. Ray
Dmitriy G. Tishyevich
Melanie MacKay
Scott Lerner
KIRKLAND & ELLIS LLP
300 North LaSalle Street
Chicago, Illinois 60654

Camilla B. Taylor
105 West Adams, Suite 2600

Counsel for Plaintiffs-Appellees Marilyn Rae Baskin, et al.

Kenneth J. Falk (Counsel of Record)
Gavin M. Rose
Kelly R. Eskew
ACLU OF INDIANA
1031 East Washington Street
Indianapolis, Indiana 46202

Sean C. Lemieux
LEMIEUX LAW
23 East 39th Street

James Esseks
Chase Strangio
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, New York 10004

Counsel for Plaintiffs-Appellees Midori Fujii, et al.

William R. Groth (Counsel of Record)
FILLENWARTH DENNERLINE
GROTH & TOWE LLP
429 E. Vermont Street, Suite 200

Karen Celestino-Horseman
Of Counsel, AUSTIN & JONES, P.C.
One North Pennsylvania Street,
Suite 220

Mark W. Sniderman
SNIDERMAN NGUYEN, LLP
47 South Meridian Street, Suite 400
Kathleen M. Sweeney
SWEENEY HAYES LLC
141 East Washington, Suite 225

Counsel for Plaintiffs-Appellees Pamela Lee, et al.
Additional Counsel Listed on Signature Block

Dated: July 29, 2014

Respectfully submitted,

/s/ Jordan M. Heinz

Jordan M. Heinz
Brent P. Ray
Melanie MacKay
Scott Lerner
(312) 862-2000
jordan.heinz@kirkland.com
brent.ray@kirkland.com
dmitriy.tishyevich@kirkland.com
melanie.mackay@kirkland.com
scott.lerner@kirkland.com

Barbara J. Baird
LAW OFFICE OF BARBARA J. BAIRD
445 North Pennsylvania Street, Suite
401
Indianapolis, Indiana 46204-0000
(317) 637-2345
bjbaird@bjbairdlaw.com

Counsel for Plaintiffs-Appellees
Marilyn Rae Baskin, et al.

Dallas, Texas 75219
(214) 219-8585, ext. 242
pcastillo@lambdalegal.org

Camilla B. Taylor
(312) 663-4413
ctaylor@lambdalegal.org

/s/ Kenneth J. Falk
Gavin M. Rose
Kelly R. Eskew
ACLU OF INDIANA
(317) 635-4059
kfalk@aclu-in.org
grose@aclu-in.org
keskew@aclu-in.org

/s/ Sean C. Lemieux
Sean C. Lemieux
LEMIEUX LAW
23 East 39th Street
(317) 985-5809
sean@lemieuxlawoffices.com


James Esseks
Chase Strangio
UNION FOUNDATION
(212) 549-2627
jesseks@aclu.org
cstrangio@aclu.org

Midori Fujii, et al.

/s/ Karen Celestino-Horseman
One North Pennsylvania Street, Suite
220
(317) 632-5633
karen@kchorseman.com

Mark W. Sniderman
(317) 361-4700
mark@snlawyers.com

Robert A. Katz
Indiana University
McKinney School of Law
530 West New York Street, Room 349

Pamela Lee, et al.
/s/ William R. Groth
GROTH & TOWE, LLP
429 East Vermont Street, Suite 200
(317) 353-9363
wgroth@fdgtlaborlaw.com

Kathleen M. Sweeney
SWEENEY HAYES LLC
141 East Washington Street, Suite 225
(317) 491-1050
ksween@gmail.com


CERTIFICATE OF SERVICE

I hereby certify that on July 29, 2014, I caused a true and correct copy of the
foregoing SUPPLEMENTAL APPENDIX OF PLAINTIFFS-APPELLEES (VOL. 1
OF 2) to be electronically filed with the Clerk of the Court for the United States
Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that
all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.

Dated: July 29, 2014 /s/ Jordan M. Heinz


Unpublished Cases Cited in Brief of Plaintiffs-Appellees
No. Case
1
Baskin v. Bogan, No. 1:14-cv-00355, 2014 WL 2884868 (S.D. Ind. June 25,
2014)
2
Bishop v. Smith, Nos. 14-5003, 14-5006, 2014 WL 3537847 (10th Cir. July
18, 2014)
3 Bostic v. Schaefer, No. 14-1167 (4th Cir. July 28, 2014)
4 Bourke v. Beshear, 3:13-cv-750-H, 2014 WL 556729 (W.D. Ky. Feb 12, 2014)
5
Brinkman v. Long, No. 13-cv-32572, 2014 WL 3408024 (Adams Cnty. Dist.
Ct. July 9, 2014)
6
Burns v. Hickenlooper, No. 14-cv-01817, 2014 WL 3634834 (D. Colo. July 23,
2014)
7 Evans v. Utah, No. 2:14-cv-00055, 2014 WL 2048343 (D. Utah May 19, 2014)
8
Geiger v. Kitzhaber, Nos. 6:13-cv-01834, 6:13-cv-02256, 2014 WL 2054264
(D. Or. May 19, 2014)

Baskin v. Bogan, --- F.Supp.2d ---- (2014)
2014 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 2884868
Only the Westlaw citation is currently available.
United States District Court,
S.D. Indiana,
Indianapolis Division.
Marilyn Rae BASKIN and Esther Fuller; Bonnie
Everly and Linda Judkins; Dawn Lynn Carver and
Pamela Ruth Elease Eanes; Henry Greene and
Glenn Funkhouser, individually and as parents
and next friends of C.A.G.; Nikole Quasney, and
Amy Sandler, individually and as parents and
next friends of A.Q.-S. and M.Q.-S., Plaintiffs,
v.
Penny BOGAN, in her official capacity as
Boone County Clerk; Karen M. Martin, in
her official capacity as Porter County Clerk;
Michael A. Brown, in his official capacity as
Lake County Clerk; Peggy Beaver, in her official
capacity as Hamilton County Clerk; William C.
Vanness II, M.D., in his official capacity as the
Commissioner, Indiana State Department of
Health; and Greg Zoeller, in his official capacity
as Indiana Attorney General, Defendants.
Midori Fujii; Melody Layne and Tara Betterman;
Scott and Rodney MoubrayCarrico; Monica
Wehrle and Harriet Miller; Gregory Hasty and
Christopher Vallero; Rob MacPherson and
Steven Stolen, individually and as parents and
next friends of L. M.-C. and A. M.-S., Plaintiffs,
v.
Governor, State of Indiana, in his official capacity;
Commissioner, Indiana State Department of
Health, in his official capacity; Commissioner,
Indiana State Department of Revenue, in his
official capacity; Clerk, Allen County, Indiana,
in her official capacity; Clerk, Hamilton County,
Indiana, in her official capacity, Defendants.
Officer Pamela Lee, Candace BattenLee, Officer
Teresa Welborn, Elizabeth J. Piette, Batallion Chief
Ruth Morrison, Martha Leverett, Sergeant Karen
VaughnKajmowicz, Tammy VaughnKajmowicz,
and J.S. V., T.S. V., T.R.V., by their parents and
next friends Sergeant Karen VaughnKajmowicz
and Tammy VaughnKajmowicz, Plaintiffs,
v.
Mike Pence, in his official capacity as Governor
of the State of Indiana; Brian Abbott, Chris
Atkins, Ken Cochran, Steve Daniels, Jodi Golden,
Michael Pinkham, Kyle Rosebrough, and Bret
Swanson, in their official capacities as members
of the Board of Trustees of the Indiana Public
Retirement System; and Steve Russo, in his
official capacity as Executive Director of the
Indiana Public Retirement System, Defendants.
Nos. 1:14cv00355RLYTAB, 1:14
cv00404RLYTAB, 1:14cv00406
RLYMJD. | Signed June 25, 2014.
Synopsis
Background: Same-sex couples brought action challenging
constitutionality of Indiana statute banning same-sex
marriage, and all other laws precluding such marriages
or preventing their recognition. Parties cross-moved for
summary judgment.
Holdings: The District Court, Richard L. Young, Chief
Judge, held that:
[1] Indiana Attorney General was a proper defendant;
[2] governor of Indiana was not a proper defendant;
[3] commissioner of the Indiana Department of Revenue was
a proper defendant;
[4] statute banning same-sex marriage violated same-sex
couples' fundamental right to marry;
[5] statute banning same-sex marriage did not discriminate
against same-sex couples based on their gender; but
[6] statute banning same-sex marriage discriminated against
same-sex couples based on their sexual orientation; and
[7] there was no rational basis for treating same-sex couples
differently by excluding them from marriage.
Motions granted in part and denied in part.
West Codenotes
Held Unconstitutional
West's A.I.C. 311111.
Recognized as Unconstitutional
1 U.S.C.A. 7
Limited on Constitutional Grounds
West's A.I.C. 4616, 311141, 3111111, 311111
3, 3111114, 3111115, 3111117
Attorneys and Law Firms
Barbara J. Baird, The Law Office of Barbara J. Baird,
Indianapolis, IN, Brent Phillip Ray, Jordan Heinz, Kirkland
& Ellis LLP, Chicago, IL, Camilla B. Taylor, Christopher
R. Clark, Lambda Legal Defense and Education Fund, Inc.,
Chicago, IL, Paul D. Castillo, Dallas, TX, for Plaintiffs.
Robert V. Clutter, Kirtley, Taylor, Sims, Chadd & Minnette,
P.C., Lebanon, IN, Elizabeth A. Knight, Valparaiso, IN,
John S. Dull, Law Office of John S. Dull, PC, Merrillville,
IN, Nancy Moore Tiller, Nancy Moore Tiller & Associates,
Crown Point, IN, Omas M. Fisher, Office of the Attorney
General, Indianapolis, IN, Darren J. Murphy, Howard &
Associates, Noblesville, IN, for Defendants.
Opinion
ENTRY ON CROSSMOTIONS
FOR SUMMARY JUDGMENT
RICHARD L. YOUNG, Chief Judge.
*1 The court has before it three cases, Baskin v. Bogan,
Fujii v. Pence, and Lee v. Pence. All three allege that
Indiana Code Section 311111 (Section 311111),
which defines marriage as between one man and one
woman and voids marriages between same-sex persons, is
facially unconstitutional. Plaintiffs in the Baskin and Fujii
cases challenge the entirety of Section 311111, while
Plaintiffs in the Lee case challenge only Section 3111
11(b). Plaintiffs, in all three cases, allege that Section
311111 violates their rights to due process and equal
protection under the Fourteenth Amendment of the United
States Constitution. In each case, Plaintiffs seek declaratory
and injunctive relief against the respective Defendants. Also
in each case, Plaintiffs and Defendants have moved for
summary judgment, agreeing that there are no issues of
material fact. For the reasons set forth below, the court
finds that Indiana's same sex marriage ban violates the due
process clause and equal protection clause and is, therefore,
unconstitutional. The court GRANTS in part and DENIES
in part the Plaintiffs' motions for summary judgment and
GRANTS in part and DENIES in part the Defendants'
motions.
I. Background
A. The Baskin Plaintiffs
The court considers the case of Baskin v. Bogan to be the
lead case and thus will recite only those facts relevant to
that dispute. In Baskin v. Bogan, Plaintiffs are comprised
of five same-sex couples and three minor children of
two of the couples. (Amended Complaint 1, Filing No.
30).
1
Four couples, Marilyn Rae Baskin and Esther Fuller,
Bonnie Everly and Linda Judkins, Dawn Carver and Pamela
Eanes, Henry Greene and Glenn Funkhouser (collectively
the unmarried plaintiffs), are not married; one couple,
Nikole Quasney and Amy Sandler (collectively the married
plaintiffs), married in Massachusetts while on their annual
vacation to the Sandler family home. Each couple resides in
Indiana and has been in a loving, committed relationship for
over a decade. Each couple has their own set of fears and
concerns should something happen to his or her significant
other.
Plaintiffs challenge Section 311111, which states:
(a) Only a female may marry a male. Only a male may
marry a female. (hereinafter Section A)
(b) A marriage between persons of the same gender is void
in Indiana even if the marriage is lawful in the place where
it is solemnized. (hereinafter Section B)
In addition, Plaintiffs broadly challenge other Indiana statutes
that have the effect of carrying out the marriage ban.
(hereinafter, collectively, with Section 311111, referred
to as Indiana's marriage laws). On April 10, 2014, the
court granted a temporary restraining order (Filing No. 51)
prohibiting the Baskin Defendants from enforcing Section
B against Nikole Quasney and Amy Sandler. The parties in
Baskin agreed to fully brief their motions for preliminary
injunction and summary judgments for a combined hearing
held on May 2, 2014. The court granted a preliminary
injunction extending the temporary restraining order. (Filing
No. 65). The court now considers the cross motions for
summary judgment in the three cases.
B. Indiana's Marriage Laws
*2 In order to marry in the State of Indiana, a couple must
apply for and be issued a marriage license. See Ind.Code
311141. The couple need not be residents of the state.
See Ind.Code 311143. However, the two individuals
must be at least eighteen years of age or meet certain
exceptions. See Ind.Code 311114; Ind.Code 3111
15. An application for a marriage license must include
information such as full name, birthplace, residence, age, and
information about each person's parents. See Ind.Code 31
1144.
2
The application only has blanks for information
from a male and female applicant. See Marriage License
Application, available at www.in.gov/judiciary/2605.htm. It
is a Class D Felony to provide inaccurate information in
the marriage license or to provide inaccurate information
about one's physical condition.
3
See Ind.Code 311111
1; Ind.Code 3111113. The clerk may not issue a license
if an individual has been adjudged mentally incompetent or is
under the influence of alcohol or drugs. See Ind.Code 31
11411.
The marriage license serves as the legal authority to
solemnize a marriage. See Ind.Code 3111414. The
marriage may be solemnized by religious or non-religious
figures. See Ind.Code 311161. If an individual attempts
to solemnize a marriage in violation of Indiana Code Chapter
31111, which includes same-sex marriages, then that
person has committed a Class B Misdemeanor. See Ind.Code
3111117.
[1] In addition to prohibiting same-sex marriages, Indiana
prohibits bigamous marriages and marriages between
relatives more closely related than second cousins unless they
are first cousins over the age of sixty-five. See Ind.Code 31
1112 (cousins); see Ind.Code 311113 (polygamy).
Nevertheless, when evaluating the legality of marriages,
the Indiana Supreme Court found that the presumption in
favor of matrimony is one of the strongest known to law.
Teter v. Teter, 101 Ind. 129, 13132 (Ind.1885). In general,
Indiana recognizes out-of-state marriages that were valid in
the location performed. Bolkovac v. State, 229 Ind. 294, 98
N.E.2d 250, 304 (Ind.1951) ( [t]he validity of a marriage
depends upon the law of the place where it occurs.).
II. Summary Judgment Standard
The purpose of summary judgment is to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d
538 (1986). Summary judgment is appropriate if the record
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). A genuine issue of material fact exists
if there is sufficient evidence for a reasonable jury to return
a verdict in favor of the non-moving party on the particular
issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
*3 On a motion for summary judgment, the burden rests
with the moving party to demonstrate that there is an absence
of evidence to support the nonmoving party's case. Celotex
Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). After the moving party demonstrates
the absence of a genuine issue for trial, the responsibility
shifts to the non-movant to go beyond the pleadings and
point to evidence of a genuine factual dispute precluding
summary judgment. Id. at 32223. If the non-movant does
not come forward with evidence that would reasonably permit
the finder of fact to find in her favor on a material question,
then the court must enter summary judgment against her.
Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th
Cir.1994) (citing Matsushita Elec. Indus. Co., 475 U.S. at
58587); see Celotex, 477 U.S. at 32224; see also Anderson,
477 U.S. at 24952.
Prior to discussing the merits of the summary judgment
motions, the court must decide several threshold issues.
First, the court must determine whether Defendants Attorney
General Zoeller, Governor Pence, and the Commissioner of
the Indiana State Department of Revenue (Department of
Revenue Commissioner) are proper parties, and second,
whether Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34
L.Ed.2d 65 (1972) bars the present lawsuit.
III. Proper PartyDefendants
[2] [3] Under the Eleventh Amendment, a citizen cannot
sue their state in federal court unless the state consents.
However, the Supreme Court created an important exception
to that immunity in Ex Parte Young. 209 U.S. 123, 28
S.Ct. 441, 52 L.Ed. 714 (1908). Under that doctrine, a
private party can sue a state officer in his or her official
capacity to enjoin prospective action that would violate
federal law. Ameritech Corp. v. McCann, 297 F.3d 582,
58586 (7th Cir.2002)(quoting Dean Foods Co. v. Brancel,
187 F.3d 609, 613 (7th Cir.1999)). Because Plaintiffs seek
an injunction to enjoin actions which violate federal law, Ex
Parte Young applies. The question here rather, is who is a
proper defendant?
[4] The proper defendants are those who bear legal
responsibility for the flaws [plaintiffs] perceive in the system
and not one[s] from whom they could not ask anything ...
that could conceivably help their cause. Sweeney v.
Daniels, No. 2:12cv81PPS/PRC, 2013 WL 209047, * 3
(N.D.Ind.Jan.17, 2013) (quoting Hearne v. Bd. of Educ., 185
F.3d 770, 777 (7th Cir.1999)). Defendants Zoeller, Pence, and
the Department of Revenue Commissioner assert that they
are not the proper parties. For the reasons explained below,
the court agrees with Governor Pence and disagrees with
Attorney General Zoeller and the Department of Revenue
Commissioner.
A. Defendant Zoeller
[5] Defendant Zoeller, sued in Baskin v. Bogan, asserts that
he neither has the authority to enforce nor has any other
role respecting Section 311111 as the Attorney General.
However, the Baskin Plaintiffs' complaint broadly challenges
Section 311111 and the State's other laws precluding such
marriages, and requests that the court declare Section 31
1111 and all other sources of Indiana law that preclude
marriage for same-sex couples or prevent recognition of their
marriages unconstitutional. (Amended Complaint 3, 80,
Filing No. 30, at ECF p. 2, 26). This relief would encompass
such criminal statutes as listed above in Part I.B.
*4 The Attorney General has the broad authority to assist
in the prosecution of any offense if he decides that it is
in the public interest. See Ind.Code. 4616. Noting
this broad authority, the court has previously found that
the Attorney General is a proper party when challenging
statutes regarding abortion. See Arnold v. Sendak, 416
F.Supp. 22, 23 (S.D.Ind.1976), aff'd, 429 U.S. 476 (1976)
(finding [t]he Attorney General thus has broad powers
in the enforcement of criminal laws of the state, and is
accordingly a proper defendant.); see also GaryNorthwest
Indiana Women's Services, Inc. v. Bowen, 496 F.Supp.
894 (N.D.Ind.1980) (attorney general as a party to a law
challenging statute criminalizing abortion). Although Section
311111 does not specifically define criminal penalties,
Indiana has criminal provisions in place to prevent individuals
from marrying in violation of it. See Ind.Code 3111
117; 3111111; and 31111113. Because the Attorney
General has broad powers in the enforcement of such criminal
statutes, he has a sufficient connection and role in enforcing
such statutes for purposes of Ex Parte Young. 209 U.S. at 157.
Therefore, the court DENIES the Attorney General's motion
for summary judgment on that ground. (Filing No. 55).
B. Governor Pence
[6] Governor Pence is sued in the Fujii and Lee cases. As
the court found in Love v. Pence, another case challenging
the constitutionality of Section 311111, the Governor is
not a proper party because the Plaintiffs' injuries are not fairly
traceable to him and cannot be redressed by him. (Love v.
Pence, No. 4:14cv15RLYTAB, Filing No. 32 (S.D. Ind.
June 24, 2014). Therefore, the court GRANTS the Governor's
motions for summary judgment (Fujii Filing No. 44) (Lee
Filing No. 41).
C. Commissioner of the Indiana State Department of
Revenue
[7] The Fujii Plaintiffs also brought suit against the
Department of Revenue Commissioner. The Commissioner
claims he is the wrong party because any harms caused by
him do not constitute a concrete injury. The court disagrees
and finds that Plaintiffs have alleged a concrete injury by
having to fill out three federal tax returns in order to file
separate returns for Indiana. See e.g. Harris v. City of Zion,
Lake County, Ill., 927 F.2d 1401, 1406 (7th Cir.1991) ([a]n
identifiable trifle is enough for standing to fight out a question
of principle; the trifle is the basis for standing and the
principle supplies the motivation.). The court finds that this
is an identifiable trifle. Therefore, the court DENIES the
Department of Revenue Commissioner's motion for summary
judgment on that ground. (Fujii Filing No. 44).
IV. The Effect of Baker v. Nelson
Defendants argue that this case is barred by Baker v. Nelson.
In Baker, the United States Supreme Court dismissed an
appeal from the Supreme Court of Minnesota for want of a
substantial federal question.409 U.S. at 810. The Supreme
Court of Minnesota held that: (1) the absence of an express
statutory prohibition against same-sex marriages did not
mean same-sex marriages are authorized, and (2) state
authorization of same-sex marriages is not required by the
United States Constitution. Baker v. Nelson, 291 Minn. 310,
191 N.W.2d 185 (Minn.1971), aff'd, 409 U.S. 810, 93 S.Ct.
37, 34 L.Ed.2d 65 (1972).
*5 The parties agree that the Supreme Court's ruling has
the effect of a ruling on the merits. See Ill. Bd. of Elections
v. Socialist Workers Party, 440 U.S. 173, 18283, 99 S.Ct.
983, 59 L.Ed.2d 230 (1979) (a summary disposition affirms
only the judgment of the court below, and no more may
be read into [the] action than was essential to sustain the
judgment.). Defendants contend that this case raises the
precise issue addressed by Baker and thus binds the court to
find in Defendants' favor. See Hicks v. Miranda, 422 U.S.
332, 34445, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quotation
omitted) (the lower courts are bound ... until such time as the
[Supreme] Court tells them that they are not.).
The court agrees that the issue of whether same-sex couples
may be constitutionally prohibited from marrying is the
exact issue presented in Baker. Nevertheless, the Supreme
Court created an important exception that when doctrinal
developments indicate, lower courts need not adhere to the
summary disposition. Id. Plaintiffs argue that three decisions
in particular are such developments: Romer v. Evans, 517
U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), Lawrence
v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508
(2003), and United States v. Windsor, U.S. , 133
S.Ct. 2675, 186 L.Ed.2d 808 (2013), and thus, the court no
longer must adhere to Baker.
The Supreme Court decided Baker at a different time in
the country's equal protection jurisprudence. The following
are examples of the jurisprudence at and around the time
of Baker. The Court struck down a law for discriminating
on the basis of gender for the first time only one year
before Baker. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251,
30 L.Ed.2d 225 (1971). Moreover, at the time Baker was
decided, the Court had not yet recognized gender as a quasi-
suspect classification.Regarding homosexuality, merely four
years after Baker, the Supreme Court granted a summary
affirmance in a case challenging the constitutionality of
the criminalization of sodomy for homosexuals. Doe v.
Commonwealth's Attorney for City of Richmond, 425 U.S.
901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). Thus, the
Supreme Court upheld the district court's finding that [i]t
is enough for upholding the legislation that the conduct is
likely to end in a contribution to moral delinquency. Doe v.
Commonwealth's Attorney for City of Richmond, 403 F.Supp.
1199, 1202 (E.D.Va.1975), aff'd 425 U.S. 901, 96 S.Ct. 1489,
47 L.Ed.2d 751 (1976). Nine years later in 1985, the Eleventh
Circuit found that particular summary affirmance was no
longer binding. Hardwick v. Bowers, 760 F.2d 1202 (11th
Cir.1985), rev'd 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d
140 (1986). However, on review, the Supreme Court held
that states were permitted to criminalize private, consensual
sex between adults of the same-sex based merely on moral
disapproval. See Bowers v. Hardwick, 478 U.S. 186, 106
S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence,
539 U.S. at 578. For ten more years, states were free to
legislate against homosexuals based merely on the majority's
disapproval of such conduct.
Then in 1996, the Supreme Court decided Romerthe
first case that clearly shows a change in direction away
from Baker. The Court held that an amendment to the
Colorado Constitution, specifically depriving homosexual
persons from the protection of anti-discrimination measures,
violated the Equal Protection Clause. Romer, 517 U.S. at 635.
The next change occurred in 2003 with Lawrence when the
Supreme Court overruled Bowers, finding that the promotion
of morality is not a legitimate state interest under the Equal
Protection Clause and the state may not criminalize sodomy
between individuals of the same sex. Lawrence, 539 U.S. at
582.
*6 Finally, in the last year even more has changed in the
Supreme Court's jurisprudence shedding any doubt regarding
the effect of Baker. The Supreme Court granted certiorari for
two cases involving the constitutionality of laws adversely
affecting individuals based on sexual orientation.First, in
United States v. Windsor, the Supreme Court invalidated
Section 3 of The Defense of Marriage Act (DOMA), which
defined marriage for purposes of federal law as only a
legal union between one man and one woman. 133 S.Ct.
at 2694 (quoting 1 U.S.C. 7). The Court noted that the
differentiation within a state caused by DOMA demeans
the couple, whose moral and sexual choices the Constitution
protects. Windsor, 133 S.Ct. at 2694. Additionally, the
Court found that the purpose of DOMA is to ensure that
if any State decides to recognize same-sex marriages, those
unions will be treated as second-class marriages. Id. at
2693. Second, the Supreme Court dismissed an appeal of
California's prohibition on same-sex marriages, not because
Baker rendered the question insubstantial, but because the
law's supporters lacked standing to defend it. Hollingsworth
v. Perry, 133 S.Ct. 6252 (2013). These developments strongly
suggest, if not compel, the conclusion that Baker is no longer
controlling and does not bar the present challenge to Indiana's
laws. See Windsor v. United States, 699 F.3d 169, 178 (2d
Cir.2012), aff'd, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d
808 (2013) (holding that Baker was not controlling as to
the constitutionality of DOMA, reasoning that [i]n the forty
years after Baker, there have been manifold changes to the
Supreme Court's equal protection jurisprudence and that
[e]ven if Baker might have had resonance ... in 1971, it does
not today).
The court acknowledges that this conclusion is shared with
all other district courts that have considered the issue post
Windsor. See Wolf v. Walker, No. 3:14cv00064bbc,
2014 WL 2558444, 36 (W.D. Wisc. June 6, 2014);
Whitewood v. Wolf, No. 1:13cv1861, 2014 WL 2058105,
46 (M.D.Penn.May 20, 2014); Geiger v. Kitzhaber,
No. 6:13cv01834MC, 2014 WL 2054264, *1 n .1 (D.Or.
May 19, 2014); Latta v. Otter, 1:13cv482CWD, 2014
WL 1909999, 710 (D.Idaho May 13, 2013); DeBoer
v. Snyder, 973 F.Supp.2d 757, 773 n. 6 (E.D.Mich.2014);
DeLeon v. Perry, 975 F.Supp.2d 632, 648 (W.D.Tex.2014)
(order granting preliminary injunction); Bostic v. Rainey, 970
F.Supp.2d 456, 46970 (E.D.Va.2014); Bishop v. U.S. ex
rel. Holder, 962 F.Supp.2d 1252, 127477 (N.D.Okla.2014);
McGee v. Cole, No. 3:13cv24068, 2014 WL 321122,
810 (S.D.W.Va.Jan.29, 2014); Kitchen v. Herbert, 961
F.Supp.2d 1181, 1195 (D.Utah 2013). Finding that Baker
does not bar the present action, the court turns to the merits
of Plaintiffs' claims.
V. Right to Marry Whom?
[8] As the court has recognized before, marriage and
domestic relations are traditionally left to the states; however,
the restrictions put in place by the state must comply with the
United States Constitution's guarantees of equal protection of
the laws and due process. See Windsor, 133 S.Ct. at 2691
(citing Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18
L.Ed.2d 1010 (1967)). Plaintiffs assert that Indiana's marriage
laws violate those guarantees.
A. Due Process Clause
1. Fundamental Right
*7 [9] [10] The Due Process Clause of the Fourteenth
Amendment guarantees that no state shall deprive any
person of life, liberty, or property without the due process of
law. U.S. Const. amend. XIV 1. The purpose of the Due
Process Clause is to protect[ ] those fundamental rights and
liberties which are, objectively, deeply rooted in this Nation's
history and tradition, and implicit in the concept of ordered
liberty.... Washington v. Glucksburg, 521 U.S. 702, 72021
(1997) (quotations and citations omitted). Because such rights
are so important, an individual's fundamental rights may not
be submitted to vote. DeLeon, 975 F.Supp.2d at 657 (citing
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638,
63 S.Ct. 1178, 87 L.Ed. 1628 (1943)). Plaintiffs assert that
the State of Indiana impedes upon their fundamental right to
marry, and thus, violates the Due Process Clause.
[11] The parties agree that a fundamental right to marry
exists; however they dispute the scope of that right. The
fact that the right to marry is a fundamental right, although
not explicitly stated by the Supreme Court, can hardly be
disputed. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384, 98
S.Ct. 673, 54 L.Ed.2d 618 (1978) ([D]ecisions of this Court
confirm that the right to marry is of fundamental importance
for all individuals.); United States v. Kras, 409 U.S. 434,
446, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) (concluding the
Court has come to regard marriage as fundamental); Loving,
388 U.S. at 12 (The freedom to marry has long been
recognized as one of the vital personal rights essential to
the orderly pursuit of happiness by free men.); Skinner v.
Okla. ex. rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86
L.Ed. 1655 (1942) (noting marriage is one of the basic civil
rights of man fundamental to our existence and survival);
Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed.
654 (1888) (characterizing marriage as the most important
relation in life and as the foundation of the family and
society, without which there would be neither civilization
nor progress.). Additionally, the parties agree that the right
to marry necessarily entails the right to marry the person of
one's choice. See Lawrence, 539 U.S. at 574 (2003) (Our
laws and tradition afford constitutional protection to personal
decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and education.).
[12] Defendants, relying on Glucksberg, argue that the
fundamental right to marry should be limited to its traditional
definition of one man and one woman because fundamental
rights are based in history. The concept of same-sex marriage
is not deeply rooted in history; thus, according to Defendants,
the Plaintiffs are asking the court to recognize a new
fundamental right. Plaintiffs counter that Defendants' reliance
on Glucksberg is mistaken because the Supreme Court has
repeatedly defined the fundamental right to marry in broad
terms.
[13] The court agrees with Plaintiffs. Fundamental rights,
once recognized, cannot be denied to particular groups on
the ground that these groups have historically been denied
those rights. In re Marriage Cases, 43 Cal.4th 757, 76
Cal.Rptr.3d 683, 183 P.3d 384, 430 (Cal.2008) (superseded
by constitutional amendment). In fact, the history of our
Constitution ... is the story of the extension of constitutional
rights and protections to people once ignored or excluded.
United States v. Virginia, 518 U.S. 515, 557, 116 S.Ct. 2264,
135 L.Ed.2d 735 (1996). The reasoning in Henry v. Himes is
particularly persuasive on this point:
*8 The Supreme Court has
consistently refused to narrow the
scope of the fundamental right to
marry by reframing a plaintiff's
asserted right to marry as a more
limited right that is about the
characteristics of the couple seeking
marriage ... [T]he Court consistently
describes a general fundamental
right to marry rather than the
right to interracial marriage, the
right to inmate marriage, or the
right of people owing child support
to marry.
No. 1: 14cv129, 2014 WL 1418395, *7 (S.D.Ohio Apr.14,
2014) (emphasis added) (citing Loving, 388 U.S. at 12;
Turner v. Safley, 482 U.S. 78, 9496, 107 S.Ct. 2254, 96
L.Ed.2d 64 (1987); Zablocki, 434 U.S. at 38386).
The court finds Loving v. Virginia best illustrates that concept.
In that case, the Court held that Virginia's ban on interracial
marriage violated the plaintiffs' rights under the Due Process
Clause. 388 U.S. at 12. The Loving Court stated [t]he
freedom to marry has long been recognized as one of the vital
personal rights essential to the orderly pursuit of happiness
by free men, and further recognized that, marriage is one
of the basic civil rights of man. Id. If the Court in Loving
had looked only to the traditional approach to marriage
prior to 1967, the Court would not have recognized that there
was a fundamental right for Mildred and Richard Loving
to be married, because the nation's history was replete with
statutes banning interracial marriages between Caucasians
and African Americans. Notably, the Court did not frame the
issue of interracial marriage as a new right, but recognized
the fundamental right to marry regardless of that traditional
classification.
Unfortunately, the courts have failed to recognize the breadth
of our Due Process rights before in cases such as Bowers. 478
U.S. at 186, overruled by Lawrence, 539 U.S. at 578. There,
the court narrowly framed the issue as whether the Federal
Constitution confers a fundamental right upon homosexuals
to engage in sodomy.... Id. at 190. Not surprisingly, with
the issue framed so narrowly and applying only to a small
classification of people, the Court found that there was no
fundamental right at issue because our history and tradition
proscribed such conduct. Id. at 19294. In 2003, the Supreme
Court recognized its error and reversed course. Lawrence,
539 U.S. at 567 (finding that the Bowers Court's statement
of the issue discloses the Court's own failure to appreciate
the extent of the liberty interest at stake.). The court found
that the sodomy laws violated plaintiffs' Due Process right to
engage in such conduct and intruded into the personal and
private life of the individual. Id. at 578. Notably, the Court
did not limit the right to a classification of certain people who
had historical access to that right.
Here, Plaintiffs are not asking the court to recognize a
new right; but rather, [t]hey seek simply the same right
that is currently enjoyed by heterosexual individuals: the
right to make a public commitment to form an exclusive
relationship and create a family with a partner with whom
the person shares an intimate and sustaining emotional
bond. Bostic, 970 F.Supp.2d at 472 (quoting Kitchen, 961
F.Supp.2d at 120203). The courts have routinely protected
the choices and circumstances defining sexuality, family,
marriage, and procreation.As the Supreme Court found in
Windsor, [m]arriage is more than a routine classification
for purposes of certain statutory benefits, and [p]rivate,
consensual intimacy between two adult persons of the same
sex ... can form but one element in a personal bond that
is more enduring. Windsor, 133 S.Ct. at 2693 (quoting
Lawrence, 539 U.S. at 567). The court concludes that the right
to marry should not be interpreted as narrowly as Defendants
urge, but rather encompasses the ability of same-sex couples
to marry.
2. Level of Scrutiny
*9 [14] [15] [16] [17] The level of scrutiny describes
how in depth the court must review the Defendants'
proffered reasons for a law. Scrutiny ranges from rational
basis (the most deferential to the State) to strict scrutiny
(the least deferential to the State). Defendants agree that
if the court finds that the fundamental right to marry
encompasses same-sex marriages, then heightened scrutiny
is appropriate. (Transcript 40:917). When a statutory
classification significantly interferes with the exercise of a
fundamental right, it cannot be upheld unless it is supported
by sufficiently important state interests and is closely tailored
to effectuate only those interests. Zablocki, 434 U.S. at 388.
Strict scrutiny requires the government to show that the law
is narrowly tailored to a compelling government interest. See
id. The burden to show the constitutionality of the law rests
with the Defendants. See id.
[18] [19] For strict scrutiny to be appropriate, the court
must find: (1) there is a fundamental right, and (2) the
classification significantly interferes with the exercise of that
right. Id. First, as stated above, the court finds that the
fundamental right to marry includes the right of the individual
to marry a person of the same sex. Second, Section 31111
1 significantly interferes with that right because it completely
bans the Plaintiffs from marrying that one person of their
choosing. Therefore, Indiana's marriage laws are subject to
strict scrutiny. See Bostic, 970 F.Supp.2d at 473.
3. Application
[20] Section 311111, classifying same-sex couples,
cannot be upheld unless it is supported by sufficiently
important state interests and is closely tailored to effectuate
only those interests . Zablocki, 434 U.S. at 388. Here,
Defendants proffer that the state's interest in conferring the
special benefit of civil marriage to only one man and one
woman is justified by its interest in encouraging the couple to
stay together for the sake of any unintended children that their
sexual union may create. The court does not weigh whether
or not this is a sufficiently important interest, but will assume
that it is.
Defendants have failed to show that the law is closely
tailored to that interest. Indiana's marriage laws are both
overand under-inclusive. The marriage laws are under-
inclusive because they only prevent one subset of couples,
those who cannot naturally conceive children, from marrying.
For example, the State's laws do not consider those post-
menopausal women, infertile couples, or couples that do
not wish to have children.Additionally, Indiana specifically
allows first cousins to marry once they reach the age that
procreation is not a realistic possibility. See Ind.Code
311112. On the other hand, Indiana's marriage laws
are over-inclusive in that they prohibit some opposite-sex
couples, who can naturally and unintentionally procreate,
from marriage. For example, relatives closer in degree than
second cousins can naturally and unintentionally procreate;
however, they still may not marry.
4
Most importantly,
excluding same-sex couples from marriage has absolutely no
effect on opposite-sex couples, whether they will procreate,
and whether such couples will stay together if they do
procreate. Therefore, the law is not closely tailored, and the
Defendants have failed to meet their burden.
*10 The state, by excluding same-sex couples from
marriage, violates Plaintiffs' fundamental right to marry under
the Due Process Clause. See Wolf, 2014 WL 2558444, at
* 21; Lee v. Orr, No. 1:13cv08719, 2014 WL 683680,
* 2 (N.D.Ill. Feb.21, 2014) (This Court has no trepidation
that marriage is a fundamental right to be equally enjoyed
by all individuals of consenting age regardless of their
race, religion, or sexual orientation.); Whitewood, 2014 WL
2058105 at 89; Latta, 2014 WL 1909999 at* 13;
DeLeon, 975 F.Supp.2d at 659; Bostic, 970 F.Supp.2d at 483;
Kitchen, 961 F.Supp.2d at 1204.
B. Equal Protection Clause
[21] Plaintiffs also argue that Section 311111 violates
the Fourteenth Amendment's Equal Protection Clause. The
Equal Protection Clause commands that no State shall deny
to any person within its jurisdiction the equal protection of
the laws, which is essentially a direction that all persons
similarly situated should be treated alike. City of Cleburne
v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct.
3249, 87 L.Ed.2d 313 (1985) (quoting U.S. Const., amend.
XIV., 1). The clause must take into account the fact that
governments must draw lines between people and groups. See
Romer, 517 U.S. at 631.
[22] [23] [24] [25] [I]f a law neither burdens a
fundamental right nor targets a suspect class, [the court] will
uphold the legislative classification so long as it bears a
rational relation to some legitimate end. Romer, 517 U.S. at
631. The court must insist on knowing the relation between
the classification adopted and the object to be attained. Id. at
632. This is to ensure that the classification was not enacted
for the purpose of disadvantaging the group burdened by
the law. See id. at 633. If a law impermissibly interferes
with the exercise of a fundamental right or operates to the
peculiar disadvantage of a suspect class then the court
applies strict scrutiny. See Zablocki, 434 U.S. at 383. To
survive strict scrutiny, Indiana must show that the law is
narrowly tailored to a compelling government interest. See id.
at 388. As indicated in Part V.A. above, the court finds that the
law impermissibly interferes with a fundamental right, and
Defendants failed to satisfy strict scrutiny. Nevertheless, the
court will evaluate the Equal Protection claim independent
from that conclusion and as an alternative reason to find the
marriage law unconstitutional.
a. Form of Discrimination
Plaintiffs argue that Indiana's marriage laws discriminate
against individuals on the basis of gender and sexual
orientation.
i. Gender
[26] According to Plaintiffs, Indiana's marriage laws
discriminate against them based on their gender. For example,
if Rae Baskin was a man she would be allowed to marry
Esther Fuller; however, because she is a female, she cannot
marry Esther. Additionally, Plaintiffs allege the law enforces
sex stereotypes, requiring men and women to adhere to
traditional marital roles. See e.g., J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).
Defendants respond that the laws do not discriminate on
the basis of gender because the laws do not affect any
gender disproportionately. Plaintiffs respond that a mere
equal application of the law was rejected by the Court in
Loving.
*11 The court is not persuaded by Plaintiffs' arguments
and finds Loving to be distinguishable on this point. Unlike
Loving, where the court found evidence of an invidious racial
discrimination, the court finds no evidence of an invidious
gender-based discrimination here. See Geiger, 2014 WL
2054264 at * 7. Moreover, there is no evidence that the
purpose of the marriage laws is to ratify a stereotype about the
relative abilities of men and women or to impose traditional
gender roles on individuals. See id.; see also Bishop, 962
F.Supp.2d at 1286.
ii. Sexual Orientation
[27] Plaintiffs also argue that Indiana's marriage laws
classify individuals based on their sexual orientation, because
they prevent all same-sex couples from marrying the person
of their choice. Defendants respond that the marriage laws
do not discriminate against same-sex couples because they
may marry just like opposite-sex couples may marry; the
law merely impacts them differently. The court rejects this
notion.As the court stated above, the right to marry is
about the ability to form a partnership, hopefully lasting
a lifetime, with that one special person of your choosing.
Additionally, although Indiana previously defined marriage
in this manner, the title of Section 311111Same
sex marriages prohibitedmakes clear that the law was
reaffirmed in 1997 not to define marriage but to prohibit gays
and lesbians from marrying the individual of their choice.
Thus, the court finds that Indiana's marriage laws discriminate
based on sexual orientation.
b. Level of Scrutiny
The Seventh Circuit applies rational basis review in cases of
discrimination based on sexual orientation. See Schroeder v.
Hamilton Sch. Dist., 282 F.3d 946, 95051 (7th Cir.2002)
(Homosexuals are not entitled to any heightened protection
under the Constitution.). The Seventh Circuit relied on
Bowers and Romer for this conclusion. Plaintiffs argue that
since Bowers has since been overruled, the court is no longer
bound by Schroeder. The court disagrees and believes it
is bound to apply rational basis because one of the cases
the Court relied on in Schroeder, e.g. Romer, is still valid
law. The court agrees with Plaintiffs that it is likely time to
reconsider this issue, especially in light of the Ninth Circuit's
decision in SmithKline Beecham Corp. v. Abbott Labs., 740
F.3d 471, 481 (9th Cir.2014) (interpreting Windsor to mean
that gay and lesbian persons constitute a suspect class).
However, the court will leave that decision to the Seventh
Circuit, where this case will surely be headed. The court will,
therefore, apply rational basis review.
c. Application
[28] Defendants rely on Johnson v. Robison for the
proposition that when ... the inclusion of one group
promotes a legitimate governmental purpose, and the addition
of other groups would not, we cannot say that the
statute's classification of beneficiaries and nonbeneficiaries
is invidiously discriminatory. 415 U.S. 361, 383, 94 S.Ct.
1160, 39 L.Ed.2d 389 (1974). According to Defendants,
Johnson means that they must only show that there is a
rational reason to provide the right of marriage to opposite-
sex couples, not that there is a rational basis to exclude.
In essence, Defendants assert that the opposite-sex couples
have distinguishing characteristics, the ability to naturally and
unintentionally procreate as a couple, that allow the State to
treat them differently from same-sex couples.
*12 Plaintiffs, on the other hand, allege that the primary
purpose of the statute is to exclude same-sex couples from
marrying and thus the Defendants must show a rational basis
to exclude them. The court agrees with Plaintiffs. According
to Plaintiffs, the purpose is evident by the timing of the statute,
which was passed in an emergency session near the time that
DOMA was passed and immediately after and in response to
a Hawaiian court's pronouncement in Baehr v. Miike, CIV.
No. 911394, 1996 WL 694235 (Haw.Cir.Ct. Dec. 3, 1996),
aff'd 87 Hawaii 34, 950 P.2d 1234 (Haw.1997), that same-
sex couples should be allowed to marry. See Family Law
MarriageSame Sex Marriages Void, 1997 Ind. Legis. Serv.
P.L. 1981997 (H.E.A.1265). Because the effect of the law is
to exclude and void same-sex marriages, the Plaintiffs argue
that the court should analyze whether there is a rational basis
to exclude same-sex marriages. Additionally, Plaintiffs assert
they are similar in all relevant aspects to opposite-sex couples
seeking to marrythey are in long-term, committed, loving
relationships and some have children.
[29] The Johnson case concerned a challenge brought by
a conscientious objector seeking to declare the educational
benefits under the Veterans' Readjustment Benefits Act of
1966 unconstitutional on Equal Protection grounds. 415 U.S.
at 364. In reviewing whether or not the classification was
arbitrary, the Court looked to the purpose of that Act and
found that the legislative objective was to (1) make serving
in the Armed Forces more attractive and (2) assist those who
served on active duty in the Armed Forces in readjusting
to civilian life. See id. at 376377. The Court found that
conscientious objectors were excluded from the benefits that
were offered to the veterans because the benefits could not
make service more attractive to a conscientious objector and
the need to readjust was absent. See id. The Supreme Court
found that the two groups were not similarly situated and thus,
Congress was justified in making that classification. See id.
at 38283.
The court agrees with Plaintiffs that they are similarly
situated in all relevant aspects to opposite-sex couples for
the purposes of marriage. Also of great importance is the
fact that unlike the statute at issue in Johnson, [m]arriage
is more than a routine classification for purposes of certain
statutory benefits. Windsor, 133 S.Ct. at 2693. In fact
having the status of married comes with hundreds of rights
and responsibilities under Indiana and federal law. See 614
Reasons Why Marriage Equality Matters in Indiana, Fujii,
Filing No. 462). As the court in Kitchen stated in analyzing
the Equal Protection claim before it:
[T]he State poses the wrong
question.The court's focus is not on
whether extending marriage benefits
to heterosexual couples serves a
legitimate governmental interest. No
one disputes that marriage benefits
serve not just legitimate, but
compelling governmental interests,
which is why the Constitution provides
such protection to an individual's
fundamental right to marry. Instead,
courts are required to determine
whether there is a rational connection
between the challenged statute and
a legitimate state interest. Here, the
challenged statute does not grant
marriage benefits to opposite-sex
couples.
5
The effect of [Utah's
marriage ban] is only to disallow
same-sex couples from gaining access
to these benefits. The court must
therefore analyze whether the State's
interests in responsible procreation
and optimal child-rearing are furthered
by prohibiting same-sex couples from
marrying.
*13 961 F.Supp.2d at 121011 (reference and footnote
added). Like Utah's laws, the effect of Indiana's marriage
laws is to exclude certain people from marrying that one
special person of their choosing. This is evident by the title
of Section 311111Same sex marriages prohibited.
Consequently, the question is whether it is rational to
treat same-sex couples differently by excluding them from
marriage and the hundreds of rights that come along with that
marriage. See e.g. City of Cleburne, Tex., 473 U.S. at 449.
The court finds that there is no rational basis to exclude
same-sex couples. The purpose of marriageto keep the
couple together for the sake of their childrenis served by
marriage regardless of the sexes of the spouses. In order
to fit under Johnson's rationale, Defendants point to the
one extremely limited difference between opposite-sex and
same-sex couples, the ability of the couple to naturally
and unintentionally procreate, as justification to deny same-
sex couples a vast array of rights. The connection between
these rights and responsibilities and the ability to conceive
unintentionally is too attenuated to support such a broad
prohibition. See Romer, 517 U.S. at 635. Furthermore,
the exclusion has no effect on opposite-sex couples and
whether they have children or stay together for those
children.Defendants proffer no reason why excluding same-
sex couples from marriage benefits opposite-sex couples.
The court concludes that there simply is no rational link
between the two. See Tanco, 2014 WL 997525 at * 6; see
also Bishop, 962 F.Supp.2d at 129093 (finding there is
no rational link between excluding same-sex marriages and
steering naturally procreative relationships into marriage,
in order to reduce the number of children born out of wedlock
and reduce economic burdens on the State); see also DeBoer,
973 F.Supp.2d at 77172 (noting that prohibiting same-sex
marriages does not stop [gay men and lesbian women] from
forming families and raising children.Nor does prohibiting
same-sex marriage increase the number of heterosexual
marriages or the number of children raised by heterosexual
parents.).
VI. Recognition of Out-of-state Marriages
Defendants concede that whether Indiana can refuse to
recognize out-of-state, same-sex marriages turns entirely on
whether Indiana may enforce Section A. Because the court
finds that Indiana may not exclude same-sex couples from
marriage, the court also finds it cannot refuse to recognize
out-of-state, same-sex marriages. See e .g. Loving, 388 U.S. at
4, 11. Nevertheless, the court finds that Section B violates the
Equal Protection Clause independent of its decision regarding
Section A.
[30] The parties agree that out-of-state, same-sex marriages
are treated differently than out-of-state, opposite-sex
marriages. Thus, the question is whether that difference
violates the Equal Protection Clause. In Windsor, the
Supreme Court concluded that by treating same-sex married
couples differently than opposite-sex married couples,
Section 3 of DOMA violate[d] basic due process and equal
protection principles applicable to the Federal Government .
133 S.Ct. at 2693. The Eastern District of Kentucky found
two guiding principles from Windsor that strongly suggest the
result here. See Bourke v. Beshear, No. 3:13cv750H, 2014
WL 556729, * 7 (W.D. Ky. Feb 12, 2014). First, the court
should look to the actual purpose of the law. Id. The second
principle is that such a law demeans the couple, whose moral
and sexual choices the Constitution protects. Id. (quoting
Windsor, 133 S.Ct. at 2694).
*14 The purpose of the law is to prevent the recognition
of same-sex marriage in Indiana, which Plaintiffs assert was
motivated by animus. If Section 311111 was in fact
motivated by animus, it violates the principles of the Equal
Protection Clause. See Romer, 517 U.S. at 63335 ([I]f the
constitutional conception of equal protection of the laws'
means anything, it must at the very least mean that a bare ...
desire to harm a politically unpopular group cannot constitute
a legitimate state interest.) (emphasis in original) (quoting
Dep't of Agriculture v. Moreno, 413 U.S. 528, 534, 93
S.Ct. 2821, 37 L.Ed.2d 782 (1973)). Section 311111, like
DOMA, was passed during the time that Hawaii courts were
deciding whether the United States Constitution required it
to allow same-sex marriages. According to the bill's author,
his intent [was] to clarify present Indiana law and strengthen
it. Barb Albert, Same-sex Marriage Takes Hit in Senate,
Indianapolis Star, Feb. 11, 1997, at B2. He did not see the
statute as denying rights, because he considered marriage to
be a privilege, rather than a right. Id. Opponents of the bill
saw it as inflaming the biases and prejudices of individuals,
thumbing your nose at the Constitution, and legislat[ing]
hate. Id.; see also Stuart A. Hirsch, Ban on Gay Marriages
to go to Governor, Indianapolis Star, Apr. 26, 1997, at B 1.
Additionally, Section 311111 is an unusual law for
Indiana to pass. As described above, in Indiana [t]he validity
of a marriage depends upon the law of the place where it
occurs. This includes recognizing marriages between first
cousins despite the fact that they cannot marry in Indiana
unless they are over 65 years of age. See Mason v. Mason,
775 N.E.2d 706, 709 (Ind.Ct.App.2002). The State of Indiana
chose one group to single out for disparate treatment. The
State's laws place same-sex marriages in a second class
category, unlike other marriages performed in other states.
Thus, like the Supreme Court in Windsor, this court can
conclude that this law is motivated by animus, thus violating
the Equal Protection Clause.
Even if it were not, the law fails rational basis review.
Defendants proffer that the state refuses to recognize same-
sex marriages because it conflicts with the State's philosophy
of marriagethat is that marriage is to ameliorate the
consequences of unintended children.Recognizing the valid
same-sex marriages performed in other states, however, has
no link whatsoever to whether opposite-sex couples have
children or stay together for those children.Thus, there is
no rational basis to refuse recognition and void out-of-state,
same-sex marriages. Therefore, Part B violates the Fourteenth
Amendment's Equal Protection Clause. See Tanco v. Haslem,
No. 3:13cv01159, 2014 WL 997525 (M.D.Tenn.Mar.14,
2014); see also Bourke, 2014 WL 556729.
VII. Conclusion
The court has never witnessed a phenomenon throughout the
federal court system as is presented with this issue. In less
than a year, every federal district court to consider the issue
has reached the same conclusion in thoughtful and thorough
opinionslaws prohibiting the celebration and recognition
of same-sex marriages are unconstitutional. It is clear that
the fundamental right to marry shall not be deprived to some
individuals based solely on the person they choose to love.
In time, Americans will look at the marriage of couples such
as Plaintiffs, and refer to it simply as a marriagenot a
same-sex marriage. These couples, when gender and sexual
orientation are taken away, are in all respects like the family
down the street. The Constitution demands that we treat them
as such. Today, the injustice that [we] had not earlier known
or understood ends. Windsor, 133 S.Ct. at 2689 (citing
Marriage Equality Act, 2011 N.Y. Laws 749). Because [a]s
the Constitution endures, persons in every generation can
invoke its principles in their own search for greater freedom.
Lawrence, 539 U.S. at 579.
*15 Therefore, the court finds as follows:
1. The Baskin Plaintiffs' motion for summary judgment
(No. 1:14cv355, Filing No. 38) is GRANTED;
2. The Baskin Defendants' motion for summary judgment
(No. 1:14cv355, Filing No. 55) is DENIED;
3. The Baskin Plaintiffs' motion to consolidate preliminary
injunction proceedings with final trial on the merits (No.
1:14cv355, Filing No. 37) and the Baskin Defendants'
motion for stay of the preliminary injunction (No. 1:14
cv355, Filing No. 68) are DENIED as moot.
4. The Fujii Plaintiffs' motion for summary judgment (No.
1:14cv404, Filing No. 33) is GRANTED in part for
all Defendants except Governor Pence and DENIED in
part as to Governor Pence;
5. The Fujii Defendants' motion for summary judgment
(No. 1:14cv404, Filing No. 44) is GRANTED in part
for Governor Pence and DENIED in part for the other
Defendants;
6. The Fujii Plaintiffs' motion for preliminary injunction
(No. 1:14cv404, Filing No. 23) and motion to
consolidate preliminary injunction proceedings with
final trial on the merits (No. 1:14cv404, Filing No. 24)
are DENIED as moot.
7. The Lee Plaintiffs' motion for summary judgment (No.
all Defendants except Governor Pence and DENIED in
part as to Governor Pence;
8. The Lee Defendants' motion for summary judgment (No.
Governor Pence and DENIED in part for the other
Defendants;
9. The Lee Plaintiffs' motion for preliminary injunction
(No. 1:14cv406, Filing No. 29), motion to consolidate
preliminary injunction proceedings with final trial on the
merits (No. 1:14cv406, Filing No. 31), and the Lee
Defendants' motion for extension of time (No. 1:14cv
406, Filing No. 53) are DENIED as moot.
ORDER
Pursuant to the reasoning contained above, the court
DECLARES that Indiana Code 311111(a), both
facially and as applied to Plaintiffs, violates the Fourteenth
Amendment's Due Process Clause and Equal Protection
Clause. Additionally, the court DECLARES that Indiana
Code 311111(b), both facially and as applied to
Plaintiffs, violates the Fourteenth Amendment's Equal
Protection Clause. Because this is a facial challenge, same-
sex couples, who would otherwise qualify to marry in Indiana,
have the right to marry in Indiana.
Having found that Indiana Code 311111 and the
laws in place enforcing such violate the Plaintiffs' rights
under the Due Process Clause and the Equal Protection
Clause, Defendants and their officers, agents, servants,
employees and attorneys, and those acting in concert with
them are PERMANENTLY ENJOINED from enforcing
Indiana Code Section 311111 and other Indiana laws
preventing the celebration or recognition of same-sex
marriages. Additionally, Defendants and officers, agents,
servants, employees and attorneys, and those acting in
concert with them, are PERMANENTLY ENJOINED from
enforcing or applying any other state or local law, rule,
regulation or ordinance as the basis to deny marriage to same-
sex couples otherwise qualified to marry in Indiana, or to
deny married same-sex couples any of the rights, benefits,
privileges, obligations, responsibilities, and immunities that
accompany marriage in Indiana.
*16 Specifically, this permanent injunction requires the
following, and the court ORDERS the following:
1. The Defendant Clerks, their officers, agents, servants,
employees and attorneys, and all those acting in concert
with them, are PERMANENTLY ENJOINED from
denying a marriage license to a couple because both
applicants for the license are the same sex. Thus they
must act pursuant to their authority under Indiana Code
Chapter 31114 and issue marriage licenses to couples
who, but for their sex, satisfy all the requirements to
marry under Indiana law;
2. The Attorney General, Greg Zoeller, his officers, agents,
servants, employees and attorneys, and all those acting in
concert with them, are PERMANENTLY ENJOINED
from prosecuting or assisting in the prosecution, using
his authority from Indiana Code 4616, of the
following:
a. same-sex couples who fill out the current marriage
license application where the spaces provided only allow
for a male and female (Ind.Code 3111111 and 31
11113),
b. clerks who grant the marriage licenses to qualified same-
sex couples (Ind.Code 3111114), or
c. those who choose to solemnize same-sex marriages
(Ind.Code 3111115 and 3111117).
3. William C. Vanness II, M.D., the Commissioner of the
Indiana State Department of Health, his officers, agents,
servants, employees and attorneys, and all those acting in
concert with them, are PERMANENTLY ENJOINED
to:
a. Act pursuant to their authority under Indiana Code 16
371 to change the death certificate form to allow for
same-sex spouses,
b. Act pursuant to their authority under Indiana Code 16
373 to issue death certificates listing same-sex spouses,
and
c. Act pursuant to their authority under Indiana Code
311144 to revise the marriage license application to
allow for same-sex applicants.
4. The Commissioner of the Indiana State Department of
Revenue, his officers, agents, servants, employees and
attorneys, and all those acting in concert with them,
are PERMANENTLY ENJOINED to exercise their
authority under Indiana Code 68.13 to revise the
filing guidelines to allow and process joint tax returns
for same-sex married couples as they do for opposite-
sex married couples.
5. The Board of Trustees of the Indiana Public Retirement
System and Steve Russo, the Executive Director of the
Indiana Public Retirement System, and their officers,
agents, servants, employees and attorneys, and all those
acting in concert with them, are PERMANENTLY
ENJOINED to administer the Pension Fund pursuant
to Indiana Code Chapters 510.53, 510.54, and 5
10.56, so as to provide the same benefits for all married
couples, regardless of whether the couples are of the
opposite sex or the same sex.
This Order does not apply to Governor Pence, who the court
found was not a proper party. This Order takes effect on the
25th day of June 2014.
SO ORDERED.
1
Filing Numbers will refer to those documents in Baskin
v. Bogan unless stated otherwise.
2
The State Department of Health is charged under
Ind.Code 311144(c) with developing a uniform
application for marriage licenses.
3
In an official opinion concerning the authority of
clerks to issue marriage licenses and only referencing
one occasion where they cannot -same-sex marriages,
the Attorney General appeared to consider inaccurate
physical information to include gender. See 2004 Ind.
Op. Att'y Gen.No. 4 (Apr. 29, 2004). The Attorney
General noted that a clerk can be charged with a
misdemeanor for issuing a marriage license knowing
the information concerning the physical condition of the
applicant is false. See id.
4
The court does not evaluate the constitutionality of
such laws, but merely uses this example to show that
the present law would be over-inclusive in regard to
Defendants' stated reason for marriage.
5
Section 3014.1 of the Utah Code, provides:
(1) (a) It is the policy of this state to recognize as
marriage only the legal union of a man and a woman
as provided in this chapter.
(b) Except for the relationship of marriage between a
man and a woman recognized pursuant to this chapter,
this state will not recognize, enforce, or give legal
effect to any law creating any legal status, rights,
benefits, or duties that are substantially equivalent to
those provided under Utah law to a man and woman
because they are married.
Amendment 3 provides: (1) Marriage consists only
of the legal union between a man and a woman.
(2) No other domestic union, however denominated,
may be recognized as a marriage or given the same or
substantially equivalent legal effect.
End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works.
United States Court of Appeals,
Tenth Circuit.
Mary BISHOP and Sharon Baldwin,
PlaintiffsAppellees,
and
Susan G. Barton and Gay E. Phillips,
PlaintiffsAppellees/CrossAppellants,
v.
Sally Howe SMITH, in her official capacity as
Court Clerk for Tulsa County, State of Oklahoma,
DefendantAppellant/CrossAppellee,
United States of America, ex rel. Eric H. Holder,
Jr., in his official capacity as Attorney General of
the United States of America, Defendant,
and
Bipartisan Legal Advisory Group of the U.S. House
of Representatives; Thad Balkman; Oklahoman's
for Protection of Marriage, Interven-
orsDefendants.
Nos. 145003, 145006.
July 18, 2014.
Background: Lesbian couples brought action
against various government officials claiming that
Defense of Marriage Act (DOMA) section which
functioned to deprive same-sex married couples of
federal benefits, and amendment to Oklahoma con-
stitution limiting marriage to opposite-sex couples
violated due process and equal protection. Defend-
ants' motion to dismiss was granted in part and
denied in part, 447 F.Supp.2d 1239. State appealed.
The Court of Appeals, Terrence L. O'Brien, Circuit
Judge, 333 Fed.Appx. 361, 2009 WL 1566802, re-
versed in part. On remand, plaintiffs filed amended
complaint adding the Attorney General and
county's court clerk as defendants, and the com-
plaint was dismissed as to state of Oklahoma, 2009
WL 4505951. Plaintiffs moved for summary judg-
ment and for entry of final judgment, court clerk
moved for summary judgment, and Attorney Gener-
al moved to dismiss. The United States District
Court for the Northern District of Oklahoma, Ter-
ence C. Kern, J., 962 F.Supp.2d 1252, granted mo-
tion in part and denied motion in part. Parties cross-
appealed.
Holdings: The Court of Appeals, Lucero, Circuit
Judge, held that:
(1) couple established redressability, as required for
standing to challenge amendment's definition of
marriage;
(2) constitutional amendment prohibiting same-sex
marriage was not narrowly tailored;
(3) court clerk's affidavit constituted new evidence
sufficient to overcome law of the case determina-
tion that couples had standing to bring action
against clerk under amendment's recognition prong;
(4) Court of Appeals did not have obligation to con-
sider forfeited severability argument; and
(5) Court of Appeals would not exercise its discre-
tion to hear same-sex couples' forfeited severability
issue.
Affirmed.
Holmes, Circuit Judge, filed concurring opin-
ion.
Kelly, Circuit Judge, filed opinion concurring
in part and dissenting in part.
West Headnotes
[1] Constitutional Law 92 0
92 Constitutional Law
Under Oklahoma law, a constitutional amend-
ment takes the place of all the former laws existing
upon the subject with which it deals.
[2] Federal Courts 170B 0
170B Federal Courts
Court of Appeals reviews a district court's
Page 1
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
standing determinations de novo.
[3] Federal Civil Procedure 170A 0
170A Federal Civil Procedure
To establish standing, a plaintiff must show:
(1) it has suffered an injury in fact that is con-
crete and particularized and actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant;
and (3) it is likely, as opposed to merely speculat-
ive, that the injury will be redressed by a favorable
decision.
A party may raise the issue of standing for the
first time at any stage of the litigation, including on
appeal.
Redressability required to establish standing is
satisfied when a favorable decision relieves an in-
jury, but a decision does not need to relieve every
injury.
Same-sex couple established redressability, as
required for standing to challenge amendment to
Oklahoma constitution limiting marriage to oppos-
ite-sex couples as violative of due process and
equal protection, despite their failure to challenge
state statute defining marriage as between one man
and one woman; statute, which was enacted prior to
constitutional amendment was not enforceable in-
dependent of amendment. U.S.C.A. Const.Amend.
14; Okla. Const. art. 2, 35; Okla. Stat. tit. 43,
3(a).
[7] Statutes 361 0
361 Statutes
A time-honored rule in Oklahoma teaches that
a revising statute, or a constitutional amendment,
takes the place of all the former laws existing upon
the subject with which it deals; this is true even
though it contains no express words to that effect.
[8] Statutes 361 0
361 Statutes
Under Oklahoma law, when a constitutional
amendment addresses the same subject as a statute,
replacement is not repeal by implication and occurs
even absent express words.
170B Federal Courts
If the United States Supreme Court has branded
a question as unsubstantial, it remains so except
when doctrinal developments indicate otherwise.
Assuming that serving children's interest in be-
ing raised by their biological parents was a compel-
ling governmental goal, Oklahoma's constitutional
amendment prohibiting same-sex marriage was not
narrowly tailored to achieve that end, for purposes
of same-sex couples' Fourteenth Amendment chal-
lenge to Oklahoma's prohibition as violative of
their due process and equal protection rights; Ok-
lahoma overlooked the interests of children being
raised by their biological parents in a wide variety
of contexts, yet failed to explain how same-sex
marriage posed a unique threat such that it must be
treated differently from those other circumstances,
and Oklahoma's ban on same-sex marriage swept
too broadly in that it denied a fundamental right to
all same-sex couples who sought to marry or to
have their marriages recognized regardless of their
child-rearing ambitions. U.S.C.A. Const.Amend. 14
; Okla. Const. art. 2, 35.
[11] Courts 106 0
106 Courts
Page 2
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
Under the law of the case doctrine, when a
court rules on an issue of law, the ruling should
continue to govern the same issues in subsequent
stages in the same case.
[12] Courts 106 0
106 Courts
Law of the case doctrine pertains both to rul-
ings by district courts and by previous panels in pri-
or appeals in the same litigation.
[13] Courts 106 0
106 Courts
It takes exceptionally narrow circumstances for
the court not to follow the law of the case when the
doctrine applies.
[14] Courts 106 0
106 Courts
Prior implicit determination by Court of Ap-
peals that same-sex couples had standing to bring
action against county's court clerk challenging fed-
eral constitutionality of Oklahoma constitutional
amendment prohibiting recognition of same-sex
marriages was law of the case. Okla. Const. art. 2,
35.
[15] Courts 106 0
106 Courts
Law of the case doctrine applies to issues that
are resolved implicitly.
[16] Courts 106 0
106 Courts
Law of the case doctrine is never off the table
solely because an issue is jurisdictional.
[17] Courts 106 0
106 Courts
While prior implicit determination by Court of
Appeals that same-sex couples had standing to
bring action against county's court clerk challen-
ging Oklahoma constitutional amendment prohibit-
ing recognition of same-sex marriages as violative
of their due process and equal protection rights was
law of the case, court clerk's affidavit stating that
she had no authority to recognize any out-of-state
marriage or marriage license, regardless of whether
it was issued to an opposite-sex or same-sex couple,
constituted new evidence sufficient to overcome the
doctrine; clerk was not party to the case at time of
prior determination by Court of Appeals, and thus
could not have offered such evidence earlier, and
affidavit established couples' lack of Article III
standing as to their recognition claim against clerk.
U.S.C.A. Const.Amend. 14; Okla. Const. art. 2,
35.
[18] Courts 106 0
106 Courts
As a practice rather than a rigid rule, the law of
the case is subject to three narrow exceptions: (1)
when new evidence emerges; (2) when intervening
law undermines the original decision; and (3) when
the prior ruling was clearly erroneous and would, if
followed, create a manifest injustice.
[19] Courts 106 0
106 Courts
An affidavit is properly categorized as new
evidence under the law of the case where it consti-
tutes admissible evidence.
[20] Courts 106 0
106 Courts
The previously-available-evidence bar is ap-
plied when the party seeking to circumvent the law
of the case had a chance to introduce the evidence
in the prior proceedings and failed to exploit that
chance.
Each plaintiff must have standing to seek each
form of relief in each claim.
Page 3
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
In order to demonstrate Article III standing, a
plaintiff must show: (1) that she has suffered a con-
crete and particular injury in fact that is either actu-
al or imminent; (2) the injury is fairly traceable to
the alleged actions of the defendant; and (3) the in-
jury will likely be redressed by a favorable de-
cision. U.S.C.A. Const. Art. 3, 2, cl. 1.
The question of whether an unconstitutional
provision of state law is severable from the re-
mainder of the enactment is a matter of state law.
Question of whether a severability analysis is
triggered by the facts of the case is a matter of state
law.
170B Federal Courts
Court of Appeals did not have obligation to
consider forfeited severability argument in action
challenging Oklahoma constitutional amendment
barring same-sex marriage. Okla. Const. art. 2, 35
.
170B Federal Courts
Decision regarding what issues are appropriate
to entertain on appeal in instances of lack of preser-
vation is discretionary.
170B Federal Courts
Where a litigant attempts to rely upon a for-
feited theory, the failure to argue for plain error and
its application on appeal surely marks the end of
the road for an argument for reversal not first
presented to the district court.
170B Federal Courts
Absent any argument for plain error, Court of
Appeals would not exercise its discretion to hear
same-sex couples' forfeited severability issue in ac-
tion challenging Oklahoma constitutional amend-
ment barring same-sex marriage. Okla. Const. art.
2, 35.
Appeals from the United States District Court for
the Northern District of Oklahoma (D.C. No.
4:04CV00848TCKTLW).James A. Campbell,
Byron J. Babione and David Austin R. Nimocks,
Alliance Defending Freedom, Scottsdale, AZ, and
John David Luton, Assistant District Attorney, Dis-
trict Attorney's Office, Tulsa, OK, with him on the
briefs, for DefendantAppellant/CrossAppellee.
Don G. Holladay, James E. Warner III, Holladay &
Chilton PLLC, Oklahoma City, OK, and Joseph T.
Thai, Norman, OK, with him on the briefs, for
PlaintiffsAppellees/CrossAppellants.
FN*
Before KELLY, LUCERO, and HOLMES, Circuit
Judges.
LUCERO, Circuit Judge.
*1 This appeal was brought by the Court Clerk
for Tulsa County, Oklahoma, asking us to overturn
a decision by the district court declaring unenforce-
able the Oklahoma state constitutional prohibition
on issuing marriage licenses to same-sex couples. It
followed quickly on the heels of an analogous ap-
peal brought by State of Utah officials requesting
similar relief. Recognizing that the ruling in the
Utah case would likely control the disposition of
her appeal, the Oklahoma appellant asked that we
assign these cases to the same panel. Our court did
so.
Preliminary to reaching the merits, we are
Page 4
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
presented with two arguments challenging the
plaintiffs' standing. The first challenges whether
plaintiffs may attack state constitutional provisions
without simultaneously attacking state statutes to
the same effect. The second challenges whether the
Court Clerk is a proper defendant as to the non-
recognition portion of the Oklahoma constitutional
prohibition.
[1] We hold that plaintiffs possess standing to
directly attack the constitutionality under the
United States Constitution of Oklahoma's same-sex
marriage ban even though their claim does not
reach Oklahoma's statutory prohibitions on such
marriages. Under Oklahoma law, a constitutional
amendment takes the place of all the former laws
existing upon the subject with which it deals. Fent
v. Henry, 257 P.3d 984, 992 n. 20 (Okla.2011) (per
curiam) (quotation omitted). Because the statutory
prohibitions are subsumed in the challenged consti-
tutional provision, an injunction against the latter's
enforcement will redress the claimed injury.
An earlier appeal of this same case involving
the standing inquiry led to a decision by a panel of
our court that dismissed proceedings brought
against the Governor and Attorney General of Ok-
lahoma. That panel ruled that recognition of mar-
riages is within the administration of the judiciary.
Bishop Okla. ex rel. Edmondson, 333 F. App'x 361,
365 (10th Cir.2009) (unpublished) (Bishop I ).We
conclude that the law of the case doctrine applies to
Bishop I, but that the doctrine is overcome by new
evidence demonstrating that the Tulsa County
Court Clerk could not redress the non-recognition
injury, thereby depriving Gay Phillips and Susan
Barton (the Barton couple) of standing to sue.
Our merits disposition is governed by our rul-
ing in Kitchen Herbert, No 134178, 2014
U.S.App. LEXIS 11935 (10th Cir. June 25, 2014).
In that companion case, we held that: (1) plaintiffs
who wish to marry a partner of the same sex or
have such marriages recognized seek to exercise a
fundamental right; and (2) state justifications for
banning same-sex marriage that turn on the procre-
ative potential of opposite-sex couples do not satis-
fy the narrow tailoring test applicable to laws that
impinge upon fundamental liberties. Exercising jur-
isdiction under 28 U.S.C. 1291, and governed by
our ruling in Kitchen, we affirm.
I
Mary Bishop and Sharon Baldwin are in a
long-term committed relationship and seek to
marry. They live together in Tulsa County, Ok-
lahoma, where they both work for the Tulsa World
newspaper. Bishop is a sixth-generation Oklahoman
and Baldwin is at least a fourth-generation Ok-
lahoman. They jointly own their home and other
property.
*2 In March 2000, the couple exchanged vows
in a church-recognized commitment ceremony.
They feel, however, that this ceremony fails to
signify the equality of their relationship, and that
marriage conveys a level of commitment or re-
spect that is not otherwise available. Bishop and
Baldwin sought a marriage license from the Tulsa
County Court Clerk in February 2009, but were
denied because they are both women. The couple
identifies several discrete harms they have suffered
because of their inability to marry, including
$1,300 in legal fees to prepare a power of attorney
form and healthcare proxies. Moreover, they ex-
plain that their inability to marry under Oklahoma
law is demeaning and signals to others that they
should not respect our relationship.
Phillips and Barton have been in a committed
relationship since 1984. They took part in a civil
union ceremony in Vermont in 2001, were married
in Canada in 2005, and wed again in California in
2008. The couple jointly owns a company that
provides training and assistance to non-profit agen-
cies that conduct youth out-of-home care. Barton
also teaches classes at Tulsa Community College,
including a course titled Building Relationships.
Phillips and Barton have suffered adverse fed-
eral tax consequences as a result of the Defense of
Marriage Act (DOMA), as well as adverse state
Page 5
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
tax consequences stemming from Oklahoma's re-
fusal to recognize their marital status. They say that
having their relationship recognized as a marriage
should have been a dream come true. Instead,
the State of Oklahoma has said ours is not a real
marriage, but something inferior to the relation-
ships of married opposite sex couples.
In November 2004, plaintiffs Bishop, Baldwin,
Barton, and Phillips filed suit against the Oklahoma
Governor and Attorney General, challenging Ok-
lahoma's state constitutional ban on same-sex mar-
riage. The Oklahoma prohibition, known as State
Question 711 (SQ 711), provides:
A. Marriage in this state shall consist only of the
union of one man and one woman. Neither this
Constitution nor any other provision of law shall
be construed to require that marital status or the
legal incidents thereof be conferred upon unmar-
ried couples or groups.
B. marriage between persons of the same gender
performed in another state shall not be recog-
nized as valid and binding in this state as of the
date of the marriage.
C. Any person knowingly issuing a marriage li-
cense in violation of this section shall be guilty of
a misdemeanor.
Okla. Const. art. 2, 35. The suit also named
the United States President and Attorney General as
defendants in a constitutional challenge to DOMA.
A motion to dismiss filed by the Governor and
State Attorney General was denied by the district
court in 2006. That decision was appealed to this
court. In 2009, a panel of our court concluded that
[b]ecause the plaintiffs failed to name a defendant
having a causal connection to their alleged injury
that is redressable by a favorable court decision, ...
the Couples do not have standing. Bishop I, 333 F.
App'x at 364. The panel held that recognition of
marriages is within the administration of the judi-
ciary, and thus the executive branch of Ok-
lahoma's government has no authority to issue a
marriage license or record a marriage. Id. at 365.
*3 On remand, the district court permitted the
plaintiffs to file an amended complaint naming as a
defendant the State of Oklahoma, ex rel. Sally
HoweSmith, in her official capacity as Court
Clerk for Tulsa County. The court granted Ok-
lahoma's motion to dismiss the state as a nominal
party, leaving Smith as the sole state defendant.
The amended complaint also asserted challenges to
2 and 3 of DOMA against the United States ex
rel. Eric Holder. However, in February 2011, the
United States notified the district court that it
would no longer defend 3 of DOMA on the mer-
its. The Bipartisan Legal Advisory Group was per-
mitted to intervene to defend the law. The case then
progressed to the summary-judgment stage. Smith
submitted an affidavit describing her duties as they
related to the plaintiffs' allegations. In that affi-
davit, Smith swore that she had no authority to re-
cognize or record a marriage license issued by an-
other state in any setting, regardless of whether the
license was issued to an opposite-sex or a same-sex
couple.
After the Supreme Court issued its decision in
United States v. Windsor, U.S. , 133 S.Ct.
2675, 186 L.Ed.2d 808 (2013), the district court
entered an opinion and order disposing of the
United States' motion to dismiss, as well as Ok-
lahoma and plaintiffs' cross-motions for summary
judgment. See Bishop v. United States ex rel. Hold-
er, 962 F.Supp.2d 1252, 1263 (N.D.Okla.2014) (
Bishop II ).The district court concluded that: (1)
Phillips and Barton lacked standing to challenge 2
of DOMA because state law, rather than that provi-
sion, resulted in non-recognition of their marriage,
id. at 126368; (2) any challenge to 3 of DOMA
was moot in light of the Windsor decision, id. at
126972; (3) Phillips and Barton lacked standing to
challenge the non-recognition portion of the Ok-
lahoma amendment, Part B, because Smith is not
involved in the recognition of out-of-state mar-
riages, as established by her summary-judgment af-
Page 6
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
fidavit, id. at 127273; and (4) Part A of SQ 711 vi-
olates the Equal Protection Clause, id. at 128196.
The court permanently enjoined enforcement of
Part A. Id. at 1296. The decision, however, was
stayed pending final disposition of any appeal. Id.
Smith timely appealed the district court's mer-
its ruling as to Part A. Phillips and Barton cross-
appealed the district court's conclusion that they
lack standing to challenge Part B. The DOMA chal-
lenges are not at issue in this appeal.
II
A
[2][3][4] Smith contends that Bishop and Bald-
win (the Bishop couple) lack standing to chal-
lenge Part A of SQ 711 because they did not simul-
taneously contest the constitutionality of a state
statute that bars same-sex couples from marrying.
We review a district court's standing determinations
de novo. See Cressman v. Thompson, 719 F.3d
1139, 1144 (10th Cir.2013). To establish standing,
a plaintiff must show:
(1) it has suffered an injury in fact that is (a)
concrete and particularized and (b) actual or im-
minent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed
to merely speculative, that the injury will be re-
dressed by a favorable decision.
*4 Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 18081, 120 S.Ct.
693, 145 L.Ed.2d 610 (2000). Although the Bishop
couple's standing was not raised below, a party may
raise the issue of standing for the first time at any
stage of the litigation, including on appeal. New
Eng. Health Care Emps. Pension Fund v. Woodruff,
512 F.3d 1283, 1288 (10th Cir.2008).
[5] The Bishop couple has not established re-
dressability, Smith argues, because a second, un-
challenged legal obstacle bars their marriage. Under
Okla. Stat. tit. 43, 3(a), which was not properly
put at issue below, [a]ny unmarried person who is
at least eighteen (18) years of age and not otherwise
disqualified is capable of contracting and consent-
ing to marriage with a person of the opposite sex.
Id. Although the district court enjoined enforcement
of Part A, it did not enjoin operation of the statute.
See Bishop II, 962 F.Supp.2d at 1296. Because the
statute permits marriage only between members of
the opposite sex, Smith argues that the Bishop
couple's injury-their inability to marrywill not be
redressed by an injunction against SQ 711 alone.
FN1
[R]edressability is satisfied when a favorable
decision relieves an injury, but a decision does not
need to relieve every injury. Consumer Data In-
dus. Ass'n v. King, 678 F.3d 898, 905 (10th
Cir.2012) (emphasis omitted).
In support, Smith asserts that several courts
have concluded that plaintiffs lack standing under
circumstances somewhat similar to the present mat-
ter. In White v. United States, 601 F.3d 545 (6th
Cir.2010), a group of plaintiffs challenged the fed-
eral Animal Welfare Act (AWA), which restric-
ted various activities associated with animal fight-
ing that involve interstate travel and commerce, but
did not (and does not) itself prohibit animal fight-
ing, including cockfighting. Id. at 549. All fifty
states, however, have prohibited cockfighting under
state law. Id. The plaintiffs claimed that they had
suffered economic injuries as a result of the federal
statute's ban, including a decreased market for
fighting birds. Id. at 54950. The Court concluded
that these allegations did not support standing:
Cockfighting is banned to a greater or lesser de-
gree in all fifty states and the District of
Columbia. Thus, while economic injuries may
constitute an injury-in-fact for the purposes of
Article III standing, the plaintiffs' alleged eco-
nomic injuries due to restrictions on cockfighting
are not traceable only to the AWA. Nor would
these injuries be redressed by the relief plaintiffs
seek, since the states' prohibitions on cockfight-
ing would remain in place notwithstanding any
action we might take in regard to the AWA.
Id. at 552 (citations omitted).
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
We are referred to numerous sign ordinance
cases holding that a plaintiff whose sign permit
applications were denied on the basis of one provi-
sion in a county's sign ordinance, but which could
have been denied on the basis of some alternate, but
unchallenged regulation, does not have a redress-
able injury. Maverick Media Grp., Inc. v. Hills-
borough Cnty., 528 F.3d 817, 820 (11th Cir.2008)
(collecting cases). In Maverick, for example, the
court ruled that a court order barring enforcement
of a county's ban on billboards would not aid the
plaintiff because the signs it sought to build were
also prohibited by unchallenged height and size
limitations. Id. at 821, 823.
*5 We need not decide whether the cases cited
by Smith are consistent with our circuit precedent
because they are readily distinguishable from the
case at hand. Courts have concluded that plaintiffs
fail to establish redressability only when an unchal-
lenged legal obstacle is enforceable separately and
distinctly from the challenged provision. In White,
the federal statute meaningfully differed from the
state cockfighting prohibitions and was enforced by
a different sovereign. See 601 F.3d at 549. Simil-
arly, the sign cases rest on the existence of an
alternate regulation addressing a distinct issue.
See Maverick, 528 F.3d at 820.
[6][7] Unlike the statutes and regulations at is-
sue in the cases upon which Smith relies, Okla.
Stat. tit. 43, 3(a) is not enforceable independent
of SQ 711. Under Oklahoma law:
A time-honored rule teaches that a revising stat-
ute (or, as in this case, a constitutional amend-
ment) takes the place of all the former laws exist-
ing upon the subject with which it deals. This is
true even though it contains no express words to
that effect. In the strictest sense this process is
not repeal by implication. Rather, it rests upon
the principle that when it is apparent from the
framework of the revision that whatever is em-
braced in the new law shall control and whatever
is excluded is discarded, decisive evidence exists
of an intention to prescribe the latest provisions
as the only ones on that subject which shall be
obligatory.
Fent, 257 P.3d at 992 n. 20 (quoting Hendrick
v. Walters, 865 P.2d 1232, 1240 (Okla.1993)). This
rule suggests that SQ 711 takes the place of
3(a), and only the provisions of the constitutional
amendment shall be obligatory. Fent, 257 P.3d at
992 n. 20.
[8] Fent, Smith informs us, stands for the op-
posite proposition because another portion of the
opinion notes the general rules that repeals by im-
plication are never favored, that it is not pre-
sumed that the legislature, in the enactment of a
subsequent statute intended to repeal an earlier one,
unless it has done so in express terms, and that all
provisions must be given effect unless irreconcil-
able conflicts exist. Id. at 991. But the quoted pas-
sage clarifies that when a constitutional amendment
addresses the same subject as a statute, replacement
is not repeal by implication and occurs even ab-
sent express words. Id. at 992 n. 20.
Fent did not involve a constitutional amend-
ment replacing a statute; the court simply noted the
rule in a footnote. The relevant quotation originates
in Hendrick, which held that a constitutional
amendment providing for a new oath of office for
certain state positions superseded an existing statute
prescribing a different oath. 865 P.2d at 124041.
Smith is correct that the provisions at issue in
Hendrick were arguably in conflict and the court
found an intent to abrogate. Id. at 1240 n. 41.
However, the broad language used in Hendrick and
quoted in Fent directs that if the framework of a
constitutional amendment indicates that whatever
is embraced in the new law shall control and
whatever is excluded is discarded, courts should
treat this framework as decisive evidence that the
amendment is the only provision on that subject
which shall be obligatory. Fent, 257 P.3d at 992 n.
20 (quoting Hendrick, 865 P.2d at 1240).
*6 SQ 711 evinces such a framework. The Ok-
lahoma Supreme Court cited Lankford v. Menefee,
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
45 Okla. 228, 145 P. 375 (Okla.1914), in support of
its conclusion in Hendrick. See 865 P.2d at 1240
nn. 3840. Lankford provides that a subsequent
statute revising the subject-matter of the former
one, and evidently intended as a substitute for it, al-
though it contains no express words to that effect,
must operate to repeal the former as long as it is
apparent that the Legislature designed a complete
scheme for the matter. 145 P. at 376. It follows
that SQ 711 provides a complete scheme for Ok-
lahoma's policy regarding same-sex marriage.
The statute identified by Smith has no effect
beyond the restrictions on same-sex marriage im-
posed by SQ 711 because the two provisions are
materially identical. Total eclipse of the function of
the statute underscores our conclusion that the
amendment provides a complete scheme. Further, it
raises the concern that the statute could not be en-
forced without violating the district court's injunc-
tion. Smith was enjoined from enforcing Part A
against same-sex couples seeking a marriage li-
cense. Bishop II, 962 F.Supp.2d at 1296. If Smith
were to deny the Bishop couple a marriage license
because they are both women, she would simultan-
eously be enforcing both Okla. Stat. tit. 43, 3(a)
and Part A of SQ 711. There is no scenario in
which Smith could enforce the statute but not en-
force the amendment.
FN2
Because the prohibition on same-sex marriage
contained in Okla. Stat. tit. 43, 3(a) is not en-
forceable independently of SQ 711, we conclude
that the Bishop couple has shown that their injury is
redressable in this suit.
FN3
B
Our consideration of the merits of the Bishop
couple's appeal is largely controlled by our decision
in Kitchen. As explained more fully in that opinion,
we conclude that: (1) the Supreme Court's summary
dismissal in Baker v. Nelson, 409 U.S. 810, 93
S.Ct. 37, 34 L.Ed.2d 65 (1972) (per curiam), is not
controlling, Kitchen, 2014 U.S.App. LEXIS 11935,
at *2131; plaintiffs seek to exercise the funda-
mental right to marry, id. at *3363; and (3) state
arguments that same-sex marriage bans are justified
by the need to communicate a conceptual link
between marriage and procreation, encourage par-
enting by mothers and fathers, and promote sacri-
fice by parents for their children fail to satisfy the
narrow tailoring requirement of the applicable strict
scrutiny test, id. at *6387.
Facts and arguments presented in this case dif-
fer in some respects from those in Kitchen. But our
core holdings are not affected by those differences.
State bans on the licensing of same-sex marriage
significantly burden the fundamental right to marry,
FN4
and arguments based on the procreative capa-
city of some opposite-sex couples do not meet the
narrow tailoring prong. In addition to the issues ex-
plicitly discussed in Kitchen, we address two other
arguments raised by Smith.
She contends that lower federal courts are not
free to reject on-point summary dismissals of the
Supreme Court regardless of doctrinal develop-
ments. Thus, Smith argues, Baker remains con-
trolling. Her focus is on the Court's statement that a
summary disposition is not here of the same pre-
cedential value as would be an opinion of this Court
treating the question on the merits. Tully v. Griffin,
Inc., 429 U.S. 68, 74, 97 S.Ct. 219, 50 L.Ed.2d 227
(1976) (quotation omitted, emphasis added). This
statement, Smith contends, indicates that, although
they may have diminished precedential value for
the Supreme Court, summary dispositions are
identical to merits decisions when considered by
lower courts. She also cites the Court's direction
that summary dispositions prevent lower courts
from coming to opposite conclusions on the precise
issues presented and necessarily decided by those
actions. Mandel v. Bradley, 432 U.S. 173, 176, 97
S.Ct. 2238, 53 L.Ed.2d 199 (1977).
*7 [9] Her argument that doctrinal develop-
ments do not allow a lower court to reject the con-
tinued applicability of a summary disposition is un-
dermined by the explicit language of the case creat-
ing that rule. In Hicks v. Miranda, 422 U.S. 332, 95
S.Ct. 2281, 45 L.Ed.2d 223 (1975), the Court stated
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that inferior federal courts had best adhere to the
view that if the Court has branded a question as un-
substantial, it remains so except when doctrinal de-
velopments indicate otherwise. Id. at 344
(quotation omitted, emphases added); see also
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 94 n.
11, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (noting
circuit court's holding that a doctrinal development
warranted departure from precedent set by Supreme
Court's summary dispositions); Okla. Telecasters
Ass'n v. Crisp, 699 F.2d 490, 495 (10th Cir.1983)
([A] summary disposition is binding on the lower
federal courts, at least where substantially similar
issues are presented, until doctrinal developments
or direct decisions by the Supreme Court indicate
otherwise. (emphases added)), rev'd sub nom.
Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691,
104 S.Ct. 2694, 81 L.Ed.2d 580 (1984). Thus, con-
trary to Smith's position, the doctrinal develop-
ments statement is explicitly directed toward lower
courts. And as explained in Kitchen, nearly every
lower federal court to have considered the issue has
concluded that Baker has been undermined by doc-
trinal developments. Kitchen, 2014 U.S.App. LEX-
IS 11935, at *2526.
[10] In addition to her Baker argument, Smith
also contends that children have an interest in being
raised by their biological parents. Assuming that
serving this interest is a compelling governmental
goal, we nevertheless conclude that a prohibition on
same-sex marriage is not narrowly tailored to
achieve that end. See Reno v. Flores, 507 U.S. 292,
30102, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)
(stating strict scrutiny test). Oklahoma has enacted
numerous laws that result in children being raised
by individuals other than their biological parents.
See, e.g., Okla. Stat. tit. 10, 554 (Any child or
children born as a result of a heterologous oocyte
donation shall be considered for all legal intents
and purposes, the same as a naturally conceived le-
gitimate child of the husband and wife which con-
sent to and receive an oocyte pursuant to the use of
the technique of heterologous oocyte donation.);
556(B)(1) (Any child or children born as a result
of a human embryo transfer donation shall be con-
sidered for all legal intents and purposes, the same
as a naturally conceived legitimate child of the hus-
band and wife that consent to and receive a human
embryo transfer.); 75011.2(A) ( The Legis-
lature of this state believes that every child should
be raised in a secure, loving home and finds that
adoption is the best way to provide a permanent
family for a child whose biological parents are not
able or willing to provide for the child's care or
whose parents believe the child's best interest will
be best served through adoption.). And Oklahoma
permits infertile opposite-sex couples to marry des-
pite the fact that they, as much as same-sex
couples, might raise non-biological children.
*8 The State thus overlooks the interests of
children being raised by their biological parents in a
wide variety of contexts. Yet Smith does not ex-
plain why same-sex marriage poses a unique threat
such that it must be treated differently from these
other circumstances. See Zablocki v. Redhail, 434
U.S. 374, 390, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978)
(grossly underinclusive statute did not satisfy
narrow tailoring requirement). As the Court ex-
plained in Eisenstadt v. Baird, 405 U.S. 438, 92
S.Ct. 1029, 31 L.Ed.2d 349 (1972), if the evil, as
perceived by the State, would be identical with re-
spect to two classes, the state may not impinge
upon the exercise of a fundamental right as to only
one class because the underinclusion would be in-
vidious. Id. at 454. As we explained in Kitchen,
such divergence between the characteristic claimed
to be relevant and the classification contained in the
challenged provision is inconsistent with the nar-
row tailoring requirement. See Kitchen, 2014
U.S.App. LEXIS 11935, at *6475.
Moreover, Oklahoma's ban on same-sex mar-
riage sweeps too broadly in that it denies a funda-
mental right to all same-sex couples who seek to
marry or to have their marriages recognized regard-
less of their child-rearing ambitions. As with op-
posite-sex couples, members of same-sex couples
have a constitutional right to choose against procre-
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
ation. See Eisenstadt, 405 U.S. at 453 (If the right
of privacy means anything, it is the right of the in-
dividual, married or single, to be free from unwar-
ranted governmental intrusion into matters so fun-
damentally affecting a person as the decision
whether to bear or beget a child. (emphasis omit-
ted)). But Oklahoma has barred all same-sex
couples, regardless of whether they will adopt,
bear, or otherwise raise children, from the benefits
of marriage while allowing all opposite-sex
couples, regardless of their child-rearing decisions,
to marry. Such a regime falls well short of estab-
lishing the most exact connection between justific-
ation and classification. Gratz v. Bollinger, 539
U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257
(2003) (quotation omitted); see also Frisby v.
Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101
L.Ed.2d 420 (1988) (A statute is narrowly tailored
if it targets and eliminates no more than the exact
source of the evil it seeks to remedy.).
In summary, none of the arguments presented
by Smith that were unaddressed in Kitchen per-
suade us to veer from our core holding that states
may not, consistent with the United States Constitu-
tion, prohibit same-sex marriages.
III
I am grateful to Judge Holmes for his author-
ship of this, Part III of the majority opinion. Judge
Holmes was on panel for our earlier decision in
Bishop I. His authorship of this section is acknow-
ledged with thanks.
Because Smith lacks authority to recognize
any out-of-state marriage and therefore [lacks the]
ability to redress the Barton couple's non-
recognition injury, Bishop II, 962 F.Supp.2d at
1273, the district court held that the Barton couple
lacked standing to challenge Part B of SQ 711 as
against Smith. We conclude that although the law
of the case doctrine applied to Bishop I, Smith's af-
fidavit constituted new evidence sufficient to over-
come the doctrine. We further conclude that the
Barton couple's argument that Part B is inseverable
from Part Aand that both must therefore fall to-
getherwas forfeited.
A
*9 [11][12][13] Under the law of the case
doctrine, when a court rules on an issue of law, the
ruling should continue to govern the same issues in
subsequent stages in the same case. United States
v. Graham, 704 F.3d 1275, 1278 (10th Cir.2013)
(quoting Arizona v. California, 460 U.S. 605, 618,
103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)) (quotation
omitted). The doctrine pertains both to rulings by
district courts, see, e.g., Clark v. State Farm Mut.
Auto. Ins. Co., 590 F.3d 1134, 1140 (10th Cir.2009)
, andas relevant hereby previous panels in pri-
or appeals in the same litigation, see, e.g., United
States v. Wardell, 591 F.3d 1279, 1300 (10th
Cir.2009). Importantly, [w]e have routinely recog-
nized that the law of the case doctrine is
discretionary, not mandatory, and that the rule
merely expresses the practice of courts generally
to refuse to reopen what has been decided, not a
limit on their power. Kennedy v. Lubar, 273 F.3d
1293, 1299 (10th Cir.2001) (quoting Stifel, Nic-
olaus & Co. v. Woolsey & Co., 81 F.3d 1540, 1544
(10th Cir.1996)) (quotation omitted); accord
Haynes Trane Serv. Agency v. Am. Standard, Inc.,
573 F.3d 947, 963 (10th Cir.2009). Even so, it takes
exceptionally narrow circumstances for the court
not to follow the law of the case when the doctrine
applies. United States v. Alvarez, 142 F.3d 1243,
1247 (10th Cir.1998).
In Bishop I, a panel of this court found that
neither the Barton couple nor the Bishop couple
had standing to challenge SQ 711. 333 F. App'x at
365. It determined that the couples could not
demonstrate redressability, reasoning as follows:
The Couples claim they desire to be married but
are prevented from doing so, or they are married
but the marriage is not recognized in Oklahoma.
These claims are simply not connected to the du-
ties of the Attorney General or the Governor.
Marriage licenses are issued, fees collected, and
the licenses recorded by the district court clerks.
[A] district court clerk is judicial personnel and is
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
an arm of the court whose duties are ministerial,
except for those discretionary duties provided by
statute. In the performance of [a] clerk's minis-
terial functions, the court clerk is subject to the
control of the Supreme Court and the supervisory
control that it has passed down to the Adminis-
trative District Judge in the clerk's administrative
district. Because recognition of marriages is with-
in the administration of the judiciary, the execut-
ive branch of Oklahoma's government has no au-
thority to issue a marriage license or record a
marriage.
Id. (alterations in original) (quotation and cita-
tions omitted). Taking this passage at face value, it
is most logically construed as the panel's determin-
ation that the Barton couple should have sued a dis-
trict court clerk on their non-recognition claim. The
panel: (1) prefaced its discussion with a reference
to both the ban and the non-recognition claims; (2)
found standing on neither; (3) reasoned that the At-
torney General and the Governor were improper de-
fendants; (4) explained that judicial personnel were
proper defendants; and (5) informed the plaintiffs
that court clerks represented the judiciary and car-
ried out many of the branch's duties relating to mar-
riage. Collectively, these points lead to but one in-
terpretation: the correct defendant for the Barton
couple's nonrecognition claim was a court clerk.
*10 One possible counterargument is that when
the panel wrote that recognition of marriages was
within the administration of the judiciary, id., it
meant in the broader sense of recognizing a
couple's right to get a marriage license in Ok-
lahoma. That argument makes little sense when one
considers the context: the first sentence of the para-
graph describes the complaint of the couples (more
specifically, the Barton couple) as alleging that
they are married but the marriage is not recog-
nized in Oklahoma, id. (emphasis added), and the
order consistently uses some form of the word
recognize to describe the Barton couple's claim,
see id. at 36263.
Another potential counterargument is that the
panel determined only that the Barton couple
should look for a defendant in the judicial branch,
not that they should necessarily select a court clerk.
See id. at 365 (Because recognition of marriages is
within the administration of the judiciary, the exec-
utive branch of Oklahoma's government has no au-
thority to issue a marriage license or record a mar-
riage. (emphasis added)). Again, though, context
belies this interpretation. Why mention the role of
the court clerks in administering the marriage stat-
utes, and why describe their relationship to the rest
of the court system, if not to express the opinion
that they are appropriate defendants?
[14] That the panel concluded that a court clerk
was the proper adversary for the Barton couple
does not necessarily mean that this conclusion be-
came the law of the case. There are three potential
reasons to hold that it did not: (1) the conclusion
was dicta; (2) the conclusion dealt with recognition
of an older marriage entered into by the Barton
couple, not their current marriage; and (3) as a jur-
isdictional determination, the conclusion was not
subject to the law of the case doctrine. None of
these reasons are persuasive.
[15] Turning to the first, it is well-settled that
[d]icta is not subject to the law of the case doc-
trine. Homans v. City of Albuquerque, 366 F.3d
900, 904 n. 5 (10th Cir.2004); accord Octagon
Res., Inc. v. Bonnett Res. Corp. ( In re Meridian
Reserve, Inc.), 87 F.3d 406, 410 (10th Cir.1996).
Statements which appear in an opinion but which
are unnecessary for its disposition are dicta. See
United States v. Manatau, 647 F.3d 1048, 1054
(10th Cir.2011); United States v. VillarrealOrtiz,
553 F.3d 1326, 1329 n. 3 (10th Cir.2009) (per curi-
am). One could argue that Bishop I held only that
the Governor and the Attorney General were the
wrong defendants, not that Smith was the right one.
But it is not so easy to separate the two propositions
as a logical matter, and the law of the case applies
to issues that are resolved implicitly. Rishell v.
Jane Phillips Episcopal Mem'l Med. Ctr., 94 F.3d
1407, 1410 (10th Cir.1996). Bishop I's holding that
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
the Governor and Attorney General were improper
defendants was tethered closely to the panel's view
of who the right defendant was. That is, the panel's
rationale for finding no standing was that the Gov-
ernor and Attorney General were not responsible
for administering marriage laws and the court
clerks were. See Bishop I, 333 F. App'x at 365
(The Couples claim they desire to be married but
are prevented from doing so, or they are married
but the marriage is not recognized in Oklahoma.
These claims are simply not connected to the duties
of the Attorney General or the Governor. Marriage
licenses are issued, fees collected, and the licenses
recorded by the district court clerks.). Therefore,
the panel held, if only implicitly, that the court
clerk was the correct defendant to name for the Bar-
ton couple's non-recognition claim.
*11 The second potential reason to rule that
Bishop I created no law of the case on standing to
sue on the non-recognition claim is that the panel
never ruled on such a claim with reference to the
Barton couple's California marriage, upon which
the claim is now based; rather, it ruled only on their
Canadian marriage and Vermont civil union, since
the California marriage was solemnized after brief-
ing in the appeal was complete. See id. at 363
(mentioning the events in Vermont and Canada but
not the California marriage). This is a distinction
without a difference. The holding in Bishop I had
nothing to do with what sovereign conferred the
status that the Barton couple wished to have recog-
nized; it had only to do with which state officials
were responsible for offering or withholding that
recognition. See id. at 365 (noting that the execut-
ive branch of Oklahoma's government has no au-
thority to issue a marriage license or record a mar-
riage).
[16] Lastly, it is Smith's view that the law of
the case doctrine is per se excluded from considera-
tion on this point because the standing issue is jur-
isdictional. Smith's stance is squarely foreclosed by
Supreme Court precedent. In Christianson v. Colt
Industries Operating Corp., 486 U.S. 800, 108
S.Ct. 2166, 100 L.Ed.2d 811 (1988), the Court took
up a dispute in which the Seventh Circuit and the
Federal Circuit had each disclaimed jurisdiction
and had each transferred the case to the other. Id. at
80304. The Supreme Court admonished the feud-
ing circuit courts of the importance of adhering
strictly to principles of law of the case. Id. at 819.
In so doing, the Supreme Court did not tailor its ar-
ticulation of the law of the case doctrine to the jur-
isdictional context. Quite to the contrary, it expli-
citly declared that [t]here is no reason to apply
law-of-the-case principles less rigorously to trans-
fer decisions that implicate the transferee's jurisdic-
tion. Id. at 816 n. 5. Christianson thus makes clear
that the law of the case doctrine is never off the ta-
ble solely because an issue is jurisdictional. The cir-
cuits have agreed that this rule applies to a situ-
ation, like the one present today, where a prior pan-
el of the same court resolved a jurisdictional matter
in an earlier appeal. See Alexander v.
JensenCarter, 711 F.3d 905, 909 (8th Cir.2013);
Sierra Club v. Khanjee Holding (US) Inc., 655 F.3d
699, 704 (7th Cir.2011); Free v. Abbott Labs., Inc.,
164 F.3d 270, 27273 (5th Cir.1999); Ferreira v.
Borja, 93 F.3d 671, 674 (9th Cir.1996) (per curi-
am); LaShawn A. v. Barry, 87 F.3d 1389, 1394
(D.C.Cir.1996) (en banc); Oneida Indian Nation of
N.Y. v. New York, 860 F.2d 1145, 1151 (2d
Cir.1988).
FN5
For the proposition that the law of the case
doctrine has no applicability to jurisdictional mat-
ters, Smith relies chiefly on Baca v. King, 92 F.3d
1031 (10th Cir.1996). Baca cannot support that
weight. In the crucial passage from that case, we
stated that [o]ne application of the law of the
case doctrine gives an appellate court discretion to
refuse to reconsider an issue decided at an earlier
stage of the litigation and that doctrine is not a
fixed rule that prevents a federal court from determ-
ining the question of its own subject matter juris-
diction in a given case. Id. at 1035. Far from
carving out an exception to customary law-
of-the-case practices in the jurisdictional context,
Baca was actually applying the classic law-
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
of-the-case approach to a jurisdictional question.
That is, the law of the case is never a fixed rule,
id., but rather always a discretionary ... practice of
courts generally to refuse to reopen what has been
decided. Kennedy, 273 F.3d at 1299 (quotation
omitted). Utilizing that well-established framework,
the Baca court determined that the law of the case
did not dictate the result of the jurisdictional ques-
tion presented under the circumstances in that dis-
pute. Baca did not foreclose the possibility that the
law of the case might, in other controversies, con-
trol a jurisdictional issue.
FN6
*12 By emphasizing the jurisdictional nature of
the issue, Baca reflected the longstanding rule that
while there is no categorical exclusion from the law
of the case doctrine for jurisdictional issues, a
slightly more flexible methodology is called for in
the jurisdictional context. In this regard, we have
indicated that [i]ssues such as subject matter juris-
diction ... may be particularly suitable for reconsid-
eration, even where the doctrine might otherwise
counsel against it. Kennedy, 273 F.3d at 1299
(quotation and citation omitted). Our law on that
point is consistent with respected secondary author-
ity and with the pronouncements of our sister cir-
cuits. See Am. Canoe Ass'n v. Murphy Farms, Inc.,
326 F.3d 505, 515 (4th Cir.2003) (Law of the case,
which is itself a malleable doctrine meant to bal-
ance the interests of correctness and finality, can
likewise be calibrated to reflect the increased prior-
ity placed on subject matter jurisdictional issues
generally, and Article III standing in particular
which represents perhaps the most important of all
jurisdictional requirements. (emphasis added)
(quotation omitted)); Shakman v. Dunne, 829 F.2d
1387, 1393 (7th Cir.1987) ([C]ourts are signific-
antly less constrained by the law of the case doc-
trine with respect to jurisdictional questions.
(emphasis added)); 18B Charles Alan Wright et al.,
Federal Practice and Procedure 4478.5, at 790
(2d ed.2002) (henceforth Federal Practice) (noting
that [t]he force of law-of-the-case doctrine is af-
fected by the nature of the first ruling and by the
nature of the issues involved and then ranking sub-
ject-matter jurisdiction as one of the issues most
likely to be reconsidered because of [its] conceptual
importance); id. at 798800 (Although a federal
court is always responsible for assuring itself that it
is acting within the limits of subject-matter jurisdic-
tion statutes and Article III, this duty need not ex-
tend to perpetual reconsideration. A court may ac-
cept its own earlier determination supporting sub-
ject-matter jurisdiction or justiciability; a denial of
subject-matter jurisdiction or justiciability is easily
adhered to. Reconsideration of these matters is par-
ticularly appropriate nonetheless .... (emphases ad-
ded) (footnotes omitted)).
In sum, the law of the case doctrine does apply
to prior jurisdictional determinations by merits pan-
els, but it applies in a somewhat weaker fashion
such that the court can consider with special care
whether an exception to the doctrine permits reas-
sessment of jurisdiction. That more flexible form of
the doctrine will be brought to bear in the following
section.
B
[17] Applying the law of the case doctrine with
the foregoing considerations in mind, Bishop I does
not require a finding of standing to sue on the non-
recognition claim.
[18] As a practice rather than a rigid rule, the
law of the case is subject to three narrow excep-
tions: (1) when new evidence emerges; (2) when in-
tervening law undermines the original decision; and
(3) when the prior ruling was clearly erroneous and
would, if followed, create a manifest injustice. See
Irving, 665 F.3d at 1192 n. 12; Clark, 590 F.3d at
1140.
*13 Although Smith focuses on the third ex-
ception, the first provides a better framework for
the analysis. This is so because Smith does not
make a case for why invocation of law of the case
would work a manifest injustice, which the
clearly-erroneous exception requires .
FN7
See, e.g.,
Zinna v. Congrove, F.3d , 2014 U.S.App.
LEXIS 10460, at *11 (10th Cir.2014); Irving, 665
Page 14
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
F.3d at 1192 n. 12; Rimbert v. Eli Lilly & Co., 647
F.3d 1247, 1251 (10th Cir.2011). Further, Smith is
relying in her law-of-the-case argument on a docu-
menther affidavitthat was not presented to the
courts until after Bishop I's issuance. If the affidavit
shows Smith to be an improper defendant, as she
maintains, then the Bishop I panel could not have
clearly erred in finding to the contrary, as it did not
have the benefit of that affidavit. Substantively,
then, the new-evidence exception is the more ap-
propriate exception to consider here.
Having located the relevant exception, we con-
front two questions: (1) whether the affidavit quali-
fies as new evidence for purposes of the exception;
and (2) whether the affidavit proves the absence of
standing. Both questions demand an affirmative an-
swer.
1
Turning to the first question, there can be no
serious argument that the affidavit is anything other
than new evidence within the meaning of the excep-
tion. Smith Machinery Co. v. Hesston Corp., 878
F.2d 1290 (10th Cir.1989), is a helpful place to be-
gin. In that case, a district court at summary judg-
ment reconsidered a previous ruling despite the law
of the case, relying in part on the proposition that
the law of the case doctrine does not ... apply in
cases in which new evidence is presented to a
court. Id . at 1292. We affirmed, noting that the
district court had before it depositions and affi-
davits presented by both parties attesting to new
and relevant facts. Id. at 1293. Tacitly, Smith Ma-
chinery endorsed the district court's use of the sum-
mary-judgment affidavits in its new-evidence ana-
lysis.
[19] This implicit holding is in keeping with
general principles of law. As In re Antrobus, 563
F.3d 1092 (10th Cir.2009) (per curiam), intimated,
an affidavit is properly categorized as new evidence
under the law of the case where it constitutes
admissible evidence, id. at 1099 n. 3, and affi-
davits are plainly competent evidence at summary
judgment, see Fed.R.Civ.P. 56(c)(1)(A) (providing
that a party moving for summary judgment may
support its motion by pointing to affidavits);
Hansen v. PT Bank Negara Indon. (Persero), 706
F.3d 1244, 1250 (10th Cir.2013) ([A]ffidavits are
entirely proper on summary judgment....).
FN8
Nor is there any apparent reason why an affi-
davit at summary judgment would not be regarded
as a proper piece of new evidence such that the ex-
ception is satisfied. That is presumably why the
Fifth Circuit has accepted such affidavits as new
evidence in evaluating whether the law of the case
controls or not. See United States v. Horton, 622
F.2d 144, 148 (5th Cir.1980) (per curiam) (finding
that the law of the case did not preclude the entry of
summary judgment despite an earlier contrary rul-
ing because the production of reports, admissions,
affidavits, and other record material during the
course of the proceedings had clarified and resolved
questions of material fact on several of the
[relevant] issues).
*14 [20] It is true that previously-available
evidence often cannot be used to unsettle the law of
the case. See In re Antrobus, 563 F.3d at 1099
(The difficulty is that the Antrobuses have not
demonstrated that they were unable to present evid-
ence along these very same lines over a year ago,
when this litigation began.); United States v. Mon-
sisvais, 946 F.2d 114, 117 (10th Cir.1991) (The
different or new evidence exception does not ap-
ply because ... the additional evidence provided by
the government at the supplemental hearing was
evidence it had in its possession, but failed to pro-
duce, at the time of the original hearing.). But
neither Smith nor any other court clerk was a party
to the case at the time of Bishop I. Smith con-
sequently did not have an opportunity to introduce
the evidence earlier, and no party had any reason to
seek it out. As demonstrated by the quotes recited
above from Antrobus and Monsisvais, this previ-
ously-available-evidence bar is applied when the
party seeking to circumvent the law of the case had
a chance to introduce the evidence in the prior pro-
ceedings and failed to exploit that chance. See In re
Page 15
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
Antrobus, 563 F.3d at 1099 (The difficulty is that
the Antrobuses have not demonstrated that they
were unable to present evidence along these very
same lines over a year ago, when this litigation
began. (emphases added)); Monsisvais, 946 F.2d
at 117 (The different or new evidence exception
does not apply because ... the additional evidence
provided by the government at the supplemental
hearing was evidence it had in its possession, but
failed to produce, at the time of the original hear-
ing. (emphases added)). That is not the case here.
Smith did not fail to do anything during Bishop I
because she was not participating in Bishop I. Ac-
cordingly, this bar does not apply, and Smith's affi-
davit does qualify as new evidence within the
meaning of the new-evidence exception to the law
of the case doctrine.
FN9
2
The next question is whether the affidavit
demonstrates a lack of standing. It does.
[21][22] Article III standing is a prerequisite to
every lawsuit in federal court. See Petrella v.
Brownback, 697 F.3d 1285, 129293 (10th
Cir.2012); Jackson v. Volvo Trucks N. Am., Inc.,
462 F.3d 1234, 1241 (10th Cir.2006). Each
plaintiff must have standing to seek each form of
relief in each claim. Bronson v. Swensen, 500 F.3d
1099, 1106 (10th Cir.2007); accord Meyer v.
Christie, 634 F.3d 1152, 1157 (10th Cir.2011). In
order to demonstrate Article III standing, a
plaintiff must show: (1) that [she] has suffered a
concrete and particular injury in fact that is either
actual or imminent; (2) the injury is fairly traceable
to the alleged actions of the defendant; and (3) the
injury will likely be redressed by a favorable de-
cision. Kerr v. Hickenlooper, 744 F.3d 1156, 1163
(10th Cir.2014); accord S. Utah Wilderness Alli-
ance v. Palma, 707 F.3d 1143, 1153 (10th
Cir.2013). The issue at hand turns on the third re-
quirementthat of redressabilitywhich is not
met when a plaintiff seeks relief against a defendant
with no power to enforce a challenged statute.
Bronson, 500 F.3d at 1111. As established by her
affidavit, that is the case with Smith and Part B.
*15 In the affidavit, Smith swore that she had
no authority to recognize or record a marriage li-
cense issued by another state in any setting, regard-
less of whether the license was issued to an oppos-
ite-sex or a same-sex couple. The plaintiffs have
offered nothing of substance to contradict that
statement.
FN10
With the new affidavit, the uncon-
troverted summary-judgment record shows that
Smith had no power to recognize the Barton
couple's out-of-state marriage, and therefore no
power to redress their injury.
FN11
Since Smith was
the only state defendant named in the operative
complaint, the Barton couple had no standing to sue
on their non-recognition claim. See Cressman, 719
F.3d at 1147 (finding that a plaintiff had no stand-
ing to sue a defendant because the plaintiff
provided no basis to conclude that the district
court could order [the defendant] to do anything in
her official capacity to redress [the plaintiff's] al-
leged injuries); Nova Health Sys. v. Gandy, 416
F.3d 1149, 1159 (10th Cir.2005) (dismissing a
claim in part for lack of redressability where a fa-
vorable judgment would likely do nothing to pre-
vent [the harm], and thus would not be substantially
likely to redress [the plaintiff's] injury in fact).
There are various potential counterarguments
that resist this conclusion, but they all fail.
First, an argument could be made that the Bar-
ton couple was entitled to sue Smith as the face of
the judiciary despite the undisputed fact that she
has no personal involvement in recognizing foreign
marriages. Granted, there are scenarios in which a
plaintiff is permitted to seek relief against a defend-
ant who would only be indirectly implicated in any
harm suffered by the plaintiff. Notably, however,
these scenarios frequently arise when a plaintiff
fearing prosecution sues a state attorney general
and other law enforcement officials to challenge a
criminal statute. See, e.g., Doe v. Bolton, 410 U.S.
179, 18889 (1973); Wilson v. Stocker, 819 F.2d
943, 94647 (10th Cir.1987). An attorney general is
the chief law enforcement officer of his or her juris-
Page 16
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
diction. See Mitchell v. Forsyth, 472 U.S. 511, 520,
105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). As such, he
or she is charged with enforcing all of the criminal
statutes on the books. See, e.g., Gandy, 416 F.3d at
1158. It is therefore logical to name that person in
his or her representative capacity when one is con-
cerned about a potential criminal prosecution. See
id. ([A]n official who is charged with enforcing a
state statute on behalf of the entire state is a proper
defendant, so long as the plaintiff shows an appre-
ciable threat of injury flowing directly from the
statute.).
It is less logical to sue a court clerk as the face
of a non-recognition regime. Far from being deleg-
ated the responsibility to enforce that regime, the
court clerk has a very tenuous relationship to the
non-recognition provision. To be sure, Oklahoma
courts apply the State's laws regarding the validity
of marriages. See Copeland v. Stone, 842 P.2d 754,
755 (Okla.1992) (deciding a case involving a pro-
hibition on remarriage within six months of di-
vorce); Mueggenborg v. Walling, 836 P.2d 112, 112
(Okla.1992) (deciding a case involving the exist-
ence vel non of a common-law marriage); Allen v.
Allen (In re Estate of Allen), 738 P.2d 142, 143
(Okla.1987) (deciding a case posing the question of
whether a marriage had been properly dissolved for
estate-distribution purposes); see also Oral Arg. at
15:0829 (pointing out that Oklahoma's judicial
branch makes the ultimate determination of mar-
riage validity with respect to matters like divorce,
child custody, inheritance, and bigamy). But all
laws are applied by the courts, and all laws are ulti-
mately given their binding meaning by the judi-
ciary. See Clajon Prod. Corp. v. Petera, 70 F.3d
1566, 1571 n. 9 (10th Cir.1995) ( [I]t is, emphat-
ically, the province and duty of the judicial depart-
ment to say what the law is. (quoting Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 176, 2 L.Ed. 60
(1803))). If the judiciary's responsibility to interpret
Part B when disputes over its meaning arose were
enough to confer standing, one could always sue
the court clerk in any challenge to any state law.
Standing, perhaps the most important of the Art-
icle III justiciability doctrines, id. at 1572, would
then become little more than an empty formality,
easily satisfied in every case.
*16 The plaintiffs seek standing, moreover, on
the basis of their bald assertion that Smith is stat-
utorily responsible for deciding whether to recog-
nize out-of-state marriages in the sense that if a
couple with an out-of-state marriage attempts to ob-
tain an Oklahoma marriage license, Smith's office
ascertains whether the out-of-state marriage is valid
for purposes of determining whether the couple is
qualified to receive an Oklahoma license. At oral
argument, counsel for the plaintiffs elaborated on
the point, explaining that if the ban is nullified in
this litigation, same-sex couples in Oklahoma who
were validly married in other states, like the Barton
couple, would seek Oklahoma marriage licenses,
and the court clerks would then determine the
validity of those foreign marriages. This, however,
is a strained argument. And, in light of the burden
that the plaintiffs were obliged to carry at the sum-
mary-judgment stage, it is patently unavailing.
The Smith affidavit was presented to the dis-
trict court as an attachment to her motion for sum-
mary judgment. To show standing on non-
recognition in the face of Smith's unequivocal dis-
avowal of any involvement in marriage recognition,
the plaintiffs were not entitled in responding to the
affidavit to depend on mere allegations' regard-
ing standing; rather, they were required to set
forth by affidavit or other evidence specific facts,
which for purposes of the summary judgment mo-
tion will be taken to be true . Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992) (citation omitted) (quoting
Fed.R.Civ.P. 56(e)); accord Bronson, 500 F.3d at
1111 n. 10.
FN12
Despite Smith's affidavit, the
plaintiffs produced no such evidence indicating that
Smith would in fact inquire into the validity of their
California marriage in the event they sought an Ok-
lahoma license, and no evidence that they ever even
intended to seek an Oklahoma marriage license. In
short, they produced no evidence generating even a
Page 17
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
possibility that Smith would ever be called upon to
evaluate the validity of their California marriage.
Even assuming that the Barton couple had
sought a marriage license from Smith, or intended
to do so, it is implausible to imagine that Smith
would have inquired into the validity of their Cali-
fornia marriage. Looking at the state of the world at
the time the suit was filed, as the law instructs, see
Jordan v. Sosa, 654 F.3d 1012, 1019 (10th
Cir.2011); Utah Ass'n of Cntys. v. Bush, 455 F.3d
1094, 1099 (10th Cir.2006), the standing inquiry
must be predicated on the existence of a valid ban
on same-sex marriage in Oklahoma. If the Barton
couple had sought an Oklahoma marriage license in
the face of the ban, it would have been odd, to say
the least, for Smith to investigate the validity of
their California marriage rather than denying them
a license outright pursuant to the unambiguous
mandate of a law that she was duty-bound to fol-
low. That being the case, the plaintiffs have no be-
lievable hypothetical under which Smith would
even be considering the validity of the Barton
couple's marriage, and hence no believable hypo-
thetical rendering her a source of relief for their
non-recognition injury. This theory is simply too
conjectural to warrant a finding of redressability.
See Kerr, 744 F.3d at 1171 (reiterating that an in-
jury is redressable if a court concludes it is likely,
as opposed to merely speculative, that the injury
will be redressed by a favorable decision.
(quoting Lujan, 504 U.S. at 561)); accord Petrella,
697 F.3d at 1294.
*17 There are other state officials with a much
closer and more concrete relationship to the with-
holding of recognition than any courthouse staff,
including Smith. The most salient example lies in
the area of taxation. In Oklahoma, the Tax Com-
mission presides over the State's tax system. See
Okla. Stat. tit. 68, 203. One of the Commission's
responsibilities is to accept or deny joint tax returns
mailed in by couples. See Grasso v. Okla. Tax
Comm'n, 249 P.3d 1258, 1261 (Okla.Civ.App.2011)
. With that scheme in place, a non-recognition
plaintiff could file a joint tax return, have that
status denied, and then sue the members of the Tax
Commission. See, e.g., Baskin v. Bogan,
F.Supp.2d , 2014 U.S. Dist. LEXIS 86114, at *
15, *50 (S.D.Ind.2014) (finding the commissioner
of the state department of revenue a proper party
and ordering him to permit same-sex couples to file
joint tax returns); cf. Rott v. Okla. Tax Comm'n, No.
CIV131041M, 2014 U.S. Dist. LEXIS 77173, at
*24 (W.D. Okla. June 6, 2014) (describing an ac-
tion brought against, inter alia, members of the Ok-
lahoma Tax Commission for wrongfully assessing
and attempting to collect income taxes from the
plaintiff in violation of his federal constitutional
rights).
Other equally straightforward paths to redress-
ability are easy enough to imagine, and several
have in fact been taken in similar challenges being
litigated elsewhere. See, e.g., Tanco v. Haslam,
F.Supp.2d , 2014 U.S. Dist. LEXIS 33463, at
*9, *3334 (M.D.Tenn.2014) (sustaining a non-
recognition challenge where the plaintiffs sued the
commissioner of the department of finance and ad-
ministration after they were prevented from using a
family health insurance plan provided by a public
university); Bostic v. Rainey, 970 F.Supp.2d 456,
46163, 484 (E.D.Va.2014) (sustaining a non-
recognition challenge where the plaintiffs sued the
state registrar of vital records to obtain a birth certi-
ficate so that they could legally adopt the daughter
they raise together); Obergefell v. Wymyslo, 962
F.Supp.2d 968, 97273, 1000 (S.D.Ohio 2013)
(sustaining a non-recognition challenge where the
plaintiffs sued the director of the state department
of health to obtain a death certificate listing the
couple as married).
FN13
The distinction between Smith and a proper de-
fendant, moreover, is not a distinction between dis-
cretionary decisions enforcing the non-recognition
provision and ministerial decisions doing so. In all
relevant respects, a tax commissioner's decision to
withhold joint-filing status is, as a practical matter,
just as ministerial as Smith's decision to withhold
Page 18
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
recognition. Both officials are responsible for faith-
fully applying Oklahoma law, and Oklahoma law
clearly instructs both of them to withhold marital
status from same-sex couples. If the Barton couple
had expressed a wish to file joint taxes and named a
tax official responsible for authorizing that filing,
there would be no doubt that a court order to the of-
ficial would remedy the couple's non-recognition
injury: the official would then accept the joint re-
turn. See Baskin, 2014 U.S. Dist. LEXIS 86114, at
*15, *50 (finding the commissioner of the state de-
partment of revenue a proper party and ordering
him to permit same-sex couples to file joint tax re-
turns). There is no analogue with respect to Smith.
The supposition that Smith will have any specific
involvement in recognizing or declining to recog-
nize the Barton couple's marriage lacks any demon-
strated foundation in the record or in Oklahoma
law.
FN14
*18 Unable to demonstrate standing on their
principal non-recognition injurythe refusal of the
State to recognize their marriagethe plaintiffs
seek to rely upon a different injury. Specifically,
the plaintiffs insist they have standing because the
injury of shutting the state courthouse doors on
Plaintiffson top of the injuries of ... non-
recognitionwould be redressed by an injunction
against [Part B]. As Smith correctly points out,
though, the Barton couple did not challenge Part B
on the grounds that it foreclosed their right to ac-
cess the state court system. Rather, they challenged
it on the grounds that it violated their equal-
protection and due-process rights to have their mar-
riage recognized. Crucially, the district court never
heard a contention from the Barton couple that Part
B visited upon them an access-to-the-courts injury,
FN15
and it was their obligation to show standing.
See Kerr, 744 F.3d at 1163; Petrella, 697 F.3d at
1293. The district court could not have entertained
jurisdiction over a claim on the basis of redressabil-
ity for an injury that the Barton couple never al-
leged.
In sum, the Barton couple had no standing to
sue, and the district court properly dismissed their
non-recognition challenge as a result.
C
In a final attempt to nullify Part B along with
Part A, the plaintiffs submitfor the first time on
appealthat the non-recognition provision must be
struck down under severability law as soon as the
ban is struck down, no matter whether there was
standing to challenge the non-recognition provision
or not. For her part, Smith asks for a finding that
the plaintiffs forfeited their severability theory by
failing to raise it in the district court. The plaintiffs
do not deny that they omitted the argument from
their summary-judgment filings, and a review of
those filings finds no trace of severability doctrine.
Nevertheless, the plaintiffs request that we take ac-
count of severability if the ban falls, regardless of
the issue's preservation, becausein their viewa
severability analysis is required whenever a court
declares invalid part of an enactment.
[23][24] At the outset, it is necessary to de-
termine the controlling source of law. The question
of whether an unconstitutional provision of state
law is severable from the remainder of the enact-
ment is a matter of state law. See Leavitt v. Jane L.,
518 U.S. 137, 139, 116 S.Ct. 2068, 135 L.Ed.2d
443 (1996) (per curiam); accord Am. Target Adver.,
Inc. v. Giani, 199 F.3d 1241, 1250 (10th Cir.2000).
So too is the question of whether a severability ana-
lysis is triggered in the first place by the facts of the
case, i.e., whether the type of judicial ruling at issue
calls for a severability inquiry. See Local 514
Transp. Workers Union of Am. v. Keating, 66 F.
App'x 768, 779 (10th Cir.2003) (certifying to the
Oklahoma Supreme Court the question of whether
severability analysis applied to certain state consti-
tutional provisions if they were declared preempted
by federal law); Local 514 Transp. Workers Union
of Am. v. Keating, 83 P.3d 835, 839 (Okla.2003)
(answering that severability analysis would not ap-
ply and holding that whether to apply severability
analysis ... [was] a matter of state law); see also
Local 514 Transp. Workers Union of Am. v. Keat-
Page 19
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
ing, 358 F.3d 743, 744 n. 1 (10th Cir.2004)
(subsequently deciding the appeal on the basis of
the Oklahoma Supreme Court's answer and incor-
porating the certification into the published opin-
ion).
*19 Unlike substantive severability law,
though, the matter of whether an argument has been
forfeited by a party's failure to raise it in the district
court is decided by federal procedural law. That
proposition is underscored by the fact that when we
have found an argument forfeited by its omission in
district court proceedings in a diversity
casewhere we are applying substantive state
lawwe have supported our forfeiture ruling with
citations to Tenth Circuit decisions that are either
applying substantive federal law or the substantive
law of a different state. See, e.g., Elm Ridge Explor-
ation Co. v. Engle, 721 F.3d 1199, 1213 (10th
Cir.2013); Brecek & Young Advisors, Inc. v. Lloyds
of London Syndicate 2003, 715 F.3d 1231, 1234 n.
1 (10th Cir.2013); Emp'rs Mut. Cas. Co. v. Bartile
Roofs, Inc., 618 F.3d 1153, 1176 n. 20 (10th
Cir.2010).
More relevant to the case at bar, in Awad v.
Ziriax, 670 F.3d 1111, 1132 n. 16 (10th Cir.2012),
we applied a federal approach to a highly analogous
situation. In Awad, a popular vote approved a pro-
posal to add to the state constitution a provision
that included, inter alia, language forbidding Ok-
lahoma courts from considering Sharia law in ren-
dering their decisions. Id. at 111718. The district
court issued a preliminary injunction, ordering state
officials not to certify the election result until the
court had ruled on the merits of a federal constitu-
tional challenge to the proposed amendment.
Awad v. Ziriax, 754 F.Supp.2d 1298, 1308
(W.D.Okla.2010). On appeal, we affirmed the pre-
liminary injunction. Awad, 670 F.3d at 1133. We
attached the following footnote to the end of our
substantive analysis:
Appellants raised the issue of severability of the
Sharia law portions of the amendment for the
first time to this court in post-oral argument sup-
plemental briefing. Their argument consisted of
one sentence and cited no authority, stating that if
this court decides the Sharia law provisions in the
amendment render the amendment invalid, the
court should simply treat the explicatory example
as surplusage, and strike it. Because this issue
has not been adequately briefed, we do not ad-
dress it. See United States v. Cooper, 654 F.3d
1104, 1128 (10th Cir.2011).
Id. at 1132 n. 16. In other words, in a federal
constitutional challenge to an Oklahoma constitu-
tional provision, we upheld, at least preliminarily, a
decision striking down the provision and declined
to consider severability because of a failure to ad-
equately preserve the issue for re-
viewspecifically, a waiver of the issue through
deficient briefing. The Awad footnote is only ex-
plicable if an appellate court has no inherent oblig-
ation to consider severability sua sponte, as it
would with, say, a jurisdictional issue. See, e.g.,
United States v. Ramos, 695 F.3d 1035, 1046 (10th
Cir.2012), cert. denied, U.S. , 133 S.Ct.
912, 184 L.Ed.2d 701 (2013); Columbian Fin.
Corp. v. BancInsure, Inc., 650 F.3d 1372, 137576
(10th Cir.2011).
*20 [25] As in Awad, this court is upholding
here a decision striking down a provision of the Ok-
lahoma Constitution on federal constitutional
grounds, and, as in Awad, the litigant failed to ad-
equately preserve the issue for reviewthis time,
by effecting a forfeiture through failure to present
the issue to the district court. There is no apparent
reason why the result the court reached in Awad
should not be the same here. In other words, the
same principle should have equal purchase in the
forfeiture context: if there is no obligation to con-
sider severability sua sponte where it has been
waived,
FN16
there is no obligation to consider it
where it has been forfeited.
[26][27] Having thus resolved the issue of
whether in a forfeiture context the court is oblig-
ated to consider severability, the decision regard-
ing what issues are appropriate to entertain on ap-
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
peal in instances of lack of preservation is discre-
tionary. Abernathy v. Wandes, 713 F.3d 538, 552
(10th Cir.2013), cert. denied, U.S. , 134
S.Ct. 1874, L.Ed.2d (2014). Waiver
through appellate-briefing omission and forfeiture
through silence before the district court are admit-
tedly distinct failures of preservation, and arguably
there is more discretionary leeway to consider is-
sues not preserved under the latter (forfeiture) than
the former (appellate-briefing waiver). See Richison
v. Ernest Grp., Inc., 634 F.3d 1123, 112830 (10th
Cir.2011) (exploring the distinction between for-
feiture and waiver, including waiver through omis-
sions in appellate briefs); see also United States v.
McGehee, 672 F.3d 860, 873 (10th Cir.2012) (
Unlike waived theories, we will entertain forfeited
theories on appeal.... (quoting Richison, 634 F.3d
at 1128)). However, where a litigant attempts to
rely upon a forfeited theory, the failure to argue
for plain error and its application on appeal ...
surely marks the end of the road for an argument
for reversal not first presented to the district court.
United States v. Lamirand, 669 F.3d 1091, 1100
n. 7 (10th Cir.2012) (omission in original) (quoting
Richison, 634 F.3d at 1131). The plaintiffs are at
the end of the road here.
[28] In essence, in arguing for reversal, the
plaintiffs are asserting that the district court erred in
refusing to enjoin Part B in addition to Part A under
severability law, despite their alleged lack of stand-
ing to challenge the former. They offer no explana-
tion as to how the district court plainly erred in this
regard.
FN17
In fact, the plaintiffs' only response to
Smith's forfeiture argument is that a severability
theory is not susceptible to forfeiture. As noted
above, that is incorrectpursuant to Awad, the
plaintiffs could in fact forfeit their severability ar-
gument, and they did.
FN18
Therefore, absent any
argument by the plaintiffs for plain error, much less
a cogent one, it is appropriate to decline to exercise
the court's discretion to hear this forfeited severab-
ility issue.
To recapitulate, a severability theory can be
forfeited, the plaintiffs' severability theory was for-
feited, and the plaintiffs supply no argument for
overlooking the forfeiture. As a consequence, they
are not entitled to the benefit of any severability
analysis, and the district court's dismissal of the
challenge to Part B must be affirmed.
FN19
*21 That the non-recognition claim is doomed
to dismissal may seem a harsh result. The Barton
couple first challenged Part B almost ten years ago.
After the first appeal, the plaintiffs fairly under-
stood Bishop I as a directive instructing them to
name Smith as the lone defendant for all of their
grievances. It was reasonable of the Barton couple
to follow that perceived directive, and it is regret-
table that their compliance has resulted in a lack of
standing, especially after nearly a decade of com-
plex, time-consuming, and no doubt emotional lit-
igation.
No matter how compelling the equitable argu-
ments for reaching the merits of the non-re-
cognition claim, however, its fate must be determ-
ined by the law, and the law demands dismissal.
The frustration that may be engendered by the
court's disposition today should be tempered,
however. Although it would not be appropriate to
definitively opine on the matter, it is fair to surmise
that the court's decision in Kitchen casts serious
doubt on the continuing vitality of Part B. See 2014
U.S.App. LEXIS 11935, at *4 (A state may not ...
refuse to recognize [a] marriage ... based solely
upon the sex of the persons in the marriage uni-
on.).
IV
For the foregoing reasons, we AFFIRM. We
STAY our mandate pending the disposition of any
subsequently-filed petition for writ of certiorari.
See Fed. R.App. P. 41(d)(2); see also Kitchen, 2014
U.S.App. LEXIS 11935, at *9798.
HOLMES, Circuit Judge, concurring.
In upholding the district court's substantive rul-
ing in this case, the majority concludes that Ok-
lahoma's same-sex marriage banfound in SQ 711
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
FN1
impermissibly contravenes the fundamental
right to marry protected by the Due Process and
Equal Protection Clauses of the Constitution. I fully
agree with that conclusion and endorse without re-
servation the reasoning of the majority on this mat-
ter.
FN2
I write here, however, to focus on one signific-
ant thing that the district court wisely did not do in
rendering its substantive ruling on the same-sex
marriage ban. Specifically, the district court de-
clined to rely upon animus doctrine in striking
down SQ 711. See Bishop v. U.S. ex rel. Holder,
962 F.Supp.2d 1252, 1285 n. 32 (N.D.Okla.2014).
Most of the other recent judicial decisions invalid-
ating same-sex marriage laws have exercised the
same forbearance.
FN3
However, several district
court decisions from other jurisdictions have taken
a different tack and suggested that similar laws may
suffer from unconstitutional animus. See Baskin v.
Bogan, F.Supp.2d , 2014 WL 2884868, at
*14 (S.D.Ind.2014); Henry v. Himes, F.Supp.2d
, 2014 WL 1418395, at *6 (S.D.Ohio 2014);
De Leon v. Perry, 975 F.Supp.2d 632, 655
(W.D.Tex.2014); Obergefell v. Wymyslo, 962
F.Supp.2d 968, 99596 (S.D.Ohio 2013). This con-
currence endeavors to clarify the relationship
between animus doctrine and same-sex marriage
laws and to explain why the district court made the
correct decision in declining to rely upon the anim-
us doctrine.
*22 I will begin by setting forth the contours of
the animus doctrine as those contours have been
drawn by the Supreme Court's case law. Then, I
will elucidate why SQ 711 falls outside of those
boundaries and why it is consequently free from
impermissible animus.
I
To understand why animus doctrine is not dis-
positive in this appeal, one must understand three
basic features of the doctrine: (1) what is animus;
(2) how is it detected; and (3) what does a court do
once it is found. I will address each question in
turn, before applying the answers to the case at bar.
A
Beginning with first principles, when a state
law is challenged on equal-protection grounds, and
when that law does not implicate a fundamental
right, a federal court ordinarily decides what type
of analysis to apply on the basis of what sort of
characteristic the State is using to distinguish one
group of citizens from another. If the law uses a
suspect classification, like race, strict scrutiny ap-
plies. See Johnson v. California, 543 U.S. 499,
50506, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005);
Riddle v. Hickenlooper, 742 F.3d 922, 927 (10th
Cir.2014). If the law uses a quasi-suspect classifica-
tion, like gender, intermediate scrutiny applies. See
United States v. Virginia, 518 U.S. 515, 53233,
116 S.Ct. 2264, 135 L.Ed.2d 735 (1996); Save Pal-
isade FruitLands v. Todd, 279 F.3d 1204, 1210
(10th Cir.2002). For all other classifications, ration-
al-basis review is typically appropriate. See Armour
v. City of Indianapolis, U.S. , 132 S.Ct.
2073, 207980, 182 L.Ed.2d 998 (2012); Brown v.
Montoya, 662 F.3d 1152, 1172 (10th Cir.2011).
The animus cases depart from this well-trod
path. In those cases, the Supreme Court took up
equal-protection challenges to government action
that distinguished between people on the basis of
characteristics that the Court had not deemed sus-
pect or quasi-suspect. See Romer v. Evans, 517 U.S.
620, 624, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996)
(describing the challenged law as classifying on the
basis of sexual orientation); City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 43637, 105
S.Ct. 3249, 87 L.Ed.2d 313 (1985) (describing the
challenged law as classifying on the basis of intel-
lectual disability); U.S. Dep't of Agric. v. Moreno,
413 U.S. 528, 530, 93 S.Ct. 2821, 37 L.Ed.2d 782
(1973) (describing the challenged law as classifying
between households where the members were re-
lated to one another and households where they
were not
FN4
); see also Massachusetts, 682 F.3d at
10 (In [Moreno, Cleburne, and Romer], the Su-
preme Court has now several times struck down
state or local enactments without invoking any sus-
pect classification.). Because the classifications at
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
issue in the animus line of cases did not involve
suspect or quasi-suspect groups, one would have
expected the Court to consider the laws under con-
ventional rational-basis review. See Armour, 132
S.Ct. at 207980; Brown, 662 F.3d at 1172. But
that was not what happened.
In the run-of-the-mill rational-basis case, the
Court asks whether the litigant challenging the state
action has effectively negative[d] any reasonably
conceivable state of facts that could provide a ra-
tional basis for the classification. Bd. of Trs. of
Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121
S.Ct. 955, 148 L.Ed.2d 866 (2001) (emphasis ad-
ded) (quoting Heller v. Doe ex rel. Doe, 509 U.S.
312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993))
(internal quotation marks omitted); accord Ebonie
S. ex rel. Mary S. v. Pueblo Sch. Dist. 60, 695 F.3d
1051, 1059 (10th Cir.2012) (parroting Supreme
Court precedent in noting that we must uphold a
law on rational-basis review if there is any reason-
ably conceivable state of facts that could provide a
rational basis for [the classification] (quoting
CopelinBrown v. N.M. State Pers. Office, 399 F.3d
1248, 1255 (10th Cir.2005)) (internal quotation
marks omitted)), cert. denied, U.S. , 133
S.Ct. 1583, 185 L.Ed.2d 577 (2013). Defying ex-
pectations, the Supreme Court in the animus cases
did not pose that broad question.
*23 Rather than relying upon the various post-
hoc rationalizations that could conceivably have
justified the laws, the Court focused on the motiva-
tions that actually lay behind the laws. See Romer,
517 U.S. at 634 (emphasizing that the challenged
law was born of animosity toward the class of per-
sons affected (emphasis added)); Cleburne, 473
U.S. at 450 (remarking that the challenged law
rest[ed] on an irrational prejudice against the
[intellectually disabled] (emphasis added));
Moreno, 413 U.S. at 534 (noting that [t]he legis-
lative history [of the challenged law] indicate[d]
that th[e] amendment was intended to prevent so
called hippies' and hippie communes' from parti-
cipating in the food stamp program (emphasis ad-
ded)); see also Am. Express Travel Related Servs.
Co. v. Kentucky, 641 F.3d 685, 692 (6th Cir.2011)
(In each of the [animus cases], the Supreme Court
... concluded that the legislation at issue was in fact
intended to further an improper government object-
ive. (emphasis added)).
Since the animus cases dealt with non-suspect
groups, and yet did not invoke the rational-basis
test in its classic form, the jurisprudence does not
fit easily into the tiers of scrutiny that attach to
most equal-protection claims. As a result, the type
of review used in the animus decisions has been
given a number of different labels. Sometimes the
cases are simply lumped together with all other ra-
tional-basis cases. See, e.g., PriceCornelison v.
Brooks, 524 F.3d 1103, 1113 n. 9 (10th Cir.2008)
(interpreting Romer as a rational-basis case). Some-
times the animus cases are said to apply
heightened rational-basis review, see, e.g., Klein-
smith v. Shurtleff, 571 F.3d 1033, 1048 (10th
Cir.2009), ormore colorfullyrational basis
with bite, see, e.g., Kenji Yoshino, The New Equal
Protection, 124 Harv. L.Rev. 747, 760 (2011),
rational basis with teeth, see, e.g., Michael E.
Waterstone, Disability Constitutional Law, 63
Emory L.J. 527, 540 (2014) (internal quotation
marks omitted), or rational basis plus, see, e.g.,
Marcy Strauss, Reevaluating Suspect Classifica-
tions, 35 Seattle U.L.Rev. 135, 135 n.5 (2011)
(internal quotation marks omitted).
For present purposes, it is of no moment what
label is affixed to the distinctive equal-protection
mode of analysis that is performed in the animus
cases. What is important is to know when and how
to conduct that analysis. As suggested above, the
hallmark of animus jurisprudence is its focus on ac-
tual legislative motive. In the interest of analytical
precision, it is important to clarify exactly what
types of legislative motive may be equated with an-
imus. Those motives could be viewed as falling
somewhere on a continuum of hostility toward a
particular group.
FN5
See Black's Law Dictionary
806 (9th ed.2009) (defining hostile, in the relev-
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
ant entry, as [a]ntagonistic; unfriendly); New Ox-
ford American Dictionary 818 (2d ed.2005)
(defining hostile, in the relevant entries, as
unfriendly; antagonistic, and opposed); Web-
ster's Third New International Dictionary 1094
(2002) (defining hostile, in the relevant entries,
as marked by antagonism or unfriendliness,
marked by resistance esp[ecially] to new ideas,
and unfavorable esp[ecially] to the new or
strange).
*24 On the weaker end of the continuum, a le-
gislative motive may be to simply exclude a partic-
ular group from one's community for no reason oth-
er than an irrational prejudice harbored against
that group. Cleburne, 473 U.S. at 450. In this sense,
animus may be present where the lawmaking au-
thority is motivated solely by the urge to call one
group other, to separate those persons from the
rest of the community (i.e., an us versus them
legal construct). See Romer, 517 U.S. at 635
(invalidating a classification of persons under-
taken for its own sake, something the Equal Protec-
tion Clause does not permit); Cleburne, 473 U.S.
at 448 ([M]ere negative attitudes, or fear, unsub-
stantiated by factors which are properly cognizable
in a zoning proceeding, are not permissible bases
for treating a home for the [intellectually disabled]
differently from apartment houses, multiple dwell-
ings, and the like.); see also Bowers v. NCAA, 475
F.3d 524, 554 (3d Cir.2007) (interpreting Cleburne
as prohibiting the construction of a caste system).
On the more extreme end of the continuum, the le-
gislative motive that implicates the animus doctrine
may manifest itself in a more aggressive
formspecifically, a desire to harm a politically
unpopular group. Moreno, 413 U.S. at 534
(emphasis added). At either end of this continuum,
and everywhere in between, at its core, legislative
motivation of this sort involves hostility to a partic-
ular group and, consequently, implicates the animus
doctrine.
B
Having settled the question of what constitutes
animus, there remains the question of how one
knows when one has found it. As explained in the
following sections, the animus cases instruct us to
explore challenged laws for signs that they are, as a
structural matter, aberrational in a way that advant-
ages some and disadvantages others. Two types of
structural aberration are especially germane here:
(1) laws that impose wide-ranging and novel
deprivations upon the disfavored group; and (2)
laws that stray from the historical territory of the
lawmaking sovereign just to eliminate privileges
that a group would otherwise receive.
FN6
These
two rough categories of structural unusualness are
neatly underscored by the Supreme Court's two
most recent statements on equal-protection law in
the arena of sexual orientation: Romer and Wind-
sor.
FN7
Both will be considered in detail below.
1
The first species of structural irregularity relat-
ing to the type of harm inflicted upon the injured
class is powerfully captured by Romer. There, the
Supreme Court struck down a Colorado constitu-
tional amendment that prohibited all state entities
from promulgating civil-rights protections specific-
ally designated for homosexuals (or bisexuals) in
any context. Romer, 517 U.S. at 635. The Court
was moved to do so by the fact that the
disadvantage imposed [was] born of animosity to-
ward the class of persons affected. Id. at 634. That
is to say, animus entered the stage in Romer for the
principal reason that the constitutional amendment
before the Court was strikingly pervasive in ob-
structing homosexuals from obtaining any specially
designated civil-rights protections whatsoever. See
id. at 627 (Sweeping and comprehensive is the
change in legal status effected by this law .); id. at
632 ([T]he amendment has the peculiar property
of imposing a broad and undifferentiated disability
on a single named group ....); id. at 633
(Amendment 2 ... identifies persons by a single
trait and then denies them protection across the
board.). That sort of blanket burdening of a group
and its rights, the Court cautioned, was unheard of
and, as a consequence, inherently suspicious. See
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
id. at 633 (The resulting disqualification of a class
of persons from the right to seek specific protection
from the law is unprecedented in our jurispru-
dence.); id. (It is not within our constitutional tra-
dition to enact laws of this sort.). Stated differ-
ently, Romer applied the animus doctrine because a
State had passed a law that pervasively constricted
the rights of a group in a way that few, if any, laws
had previously done. Cf. Equality Found. of Great-
er Cincinnati, Inc. v. City of Cincinnati, 128 F.3d
289, 299 (6th Cir.1997) ([T]he Romer majority's
rejection of rational relationship assessment hinged
upon the wide breadth of Colorado Amendment 2,
which deprived a politically unpopular minority of
the opportunity to secure special rights at every
level of state law.).
2
*25 The second species of structural irregular-
ity is on display in Windsor. Specifically, prior to
passage of DOMA, Congress had deferred to the
States' definitional authority over marriage, an au-
thority they enjoyed as part of their traditional po-
lice power in the domestic-relations sphere. See
Windsor, 133 S.Ct. at 2691 (depicting family law as
an area that has long been regarded as a virtually
exclusive province of the States (internal quotation
marks omitted)); id. (The definition of marriage is
the foundation of the State's broader authority to
regulate the subject of domestic relations ....); id.
([T]he states, at the time of the adoption of the
Constitution, possessed full power over the subject
of marriage and divorce .... (alteration in original)
(internal quotation marks omitted)). DOMA repres-
ented a radical departure from that tradition, and it
was that departure that brought animus concerns to
the fore in Windsor:
When the State used its historic and essential au-
thority to define the marital relation in this way,
[i.e., to allow same-sex marriage,] its role and its
power in making the decision enhanced the re-
cognition, dignity, and protection of the class in
their own community. DOMA, because of its
reach and extent, departs from this history and
tradition of reliance on state law to define mar-
riage. [D]iscriminations of an unusual character
especially suggest careful consideration to de-
termine whether they are obnoxious to the consti-
tutional provision.
Id. at 2692 (second alteration in original)
(quoting Romer, 517 U.S. at 633) (internal quota-
tion marks omitted). Shortly thereafter in Windsor,
the Supreme Court drove the same point home:
The responsibility of the States for the regulation
of domestic relations is an important indicator of
the substantial societal impact the State's classi-
fications have in the daily lives and customs of
its people. DOMA's unusual deviation from the
usual tradition of recognizing and accepting state
definitions of marriage here operates to deprive
same-sex couples of the benefits and responsibil-
ities that come with the federal recognition of
their marriages. This is strong evidence of a law
having the purpose and effect of disapproval of
that class.
Id. at 2693 (emphasis added). With these pas-
sages, the Court left no doubt that the animus doc-
trine was relevant to the disposition of the case be-
cause the federal government had gone beyond the
federalism pale and intruded into a province histor-
ically monopolized by the States, and, what is
more, that the federal government had done so
solely to restrict the rights that would have other-
wise been afforded to gay and lesbian individuals.
See Conkle, supra, at 40 (interpreting the federal-
ism concerns in Windsor as directly linked to [the
Court's] animus rationale).
C
When a litigant presents a colorable claim of
animus, the judicial inquiry searches for the forego-
ing clues. What happens when the clues are all
gathered and animus is detected? The answer is
simple: the law falls. Remember that under ration-
al-basis review, the most forgiving of equal-
protection standards, a law must still have a legit-
imate purpose. See Kimel v. Fla. Bd. of Regents,
528 U.S. 62, 84, 120 S.Ct. 631, 145 L.Ed.2d 522
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
(2000) (explaining that when conducting rational
basis review we will not overturn such [government
action] unless the varying treatment of different
groups or persons is so unrelated to the achieve-
ment of any combination of legitimate purposes
that we can only conclude that the [government's]
actions were irrational (alterations in original)
(internal quotation marks omitted)); United States
v. Angelos, 433 F.3d 738, 754 (10th Cir.2006) (To
pass muster under the rational basis test, [the stat-
ute] must have a legitimate purpose .... (internal
quotation marks omitted)). A legislative motive
qualifying as animus is never a legitimate purpose.
See Romer, 517 U.S. at 632 ([T]he amendment
seems inexplicable by anything but animus toward
the class it affects; it lacks a rational relationship to
legitimate state interests.); Cleburne, 473 U.S. at
448 ([M]ere negative attitudes, or fear, ... are not
permissible bases for [a statutory classification].);
Moreno, 413 U.S. at 534 ([The] amendment was
intended to prevent socalled hippies' and hippie
communes' from participating in the food stamp
program, and such a bare congressional desire to
harm a politically unpopular group cannot consti-
tute a legitimate governmental interest.). In other
words, once animus is detected, the inquiry is over:
the law is unconstitutional.
*26 This fearsome quality of animus jurispru-
dence has led one commentator to refer to it, most
aptly, as a doctrinal silver bullet. Pollvogt, supra,
at 889. Conversely, if animus is not properly in-
vokedviz., if the clues do not add up to a picture
of hostile lawmakingthe analysis returns to the
traditional rational-basis realm and the Court com-
mences a more generous search for any reasonably
conceivable state of facts that could provide a ra-
tional basis for the classification. Garrett, 531
U.S. at 367 (emphasis added) (internal quotation
marks omitted); accord Ebonie S., 695 F.3d at 1059
.
II
Armed with these background principles, I am
now well-situated to examine how animus oper-
atesor does notin the context of the instant ap-
peal.
To review, ordinarily, a law falls prey to anim-
us only where there is structural evidence that it is
aberrational, either in the sense that it targets the
rights of a minority in a dangerously expansive and
novel fashion, see Romer, 517 U.S. at 63135, or in
the sense that it strays from the historical territory
of the lawmaking sovereign just to eliminate priv-
ileges that a group would otherwise receive, see
Windsor, 133 S.Ct. at 268995. The Oklahoma law
at issue before us today is aberrational in neither re-
spect. In fact, both considerations cut strongly
against a finding of animus.
FN8
A
To begin, SQ 711 is not nearly as far-reaching
as the state constitutional amendment that Romer
invalidated. The amendment taken up by Romer
forbade any unit of state government from extend-
ing to gay and lesbian persons any special priv-
ileges or protections. See 517 U.S. at 624 (reciting
the language of the amendment); see also id. at 632
([T]he amendment has the peculiar property of im-
posing a broad and undifferentiated disability on a
single named group ....); id. at 633 (Amendment
2 ... identifies persons by a single trait and then
denies them protection across the board.). SQ 711
cannot plausibly be painted with this brush. Unlike
the amendment in Romer, SQ 711 does not deprive
homosexuals of civil-rights protection across the
board, id. at 633, in a [s]weeping and compre-
hensive fashion, id. at 627. It excludes them from
a single institution: marriage. For animus purposes,
SQ 711 is an exclusion of a much different charac-
ter than the Colorado amendment in Romer, which
shut the door for homosexuals on myriad rights to
which they might otherwise have gained access
through the political process.
Furthermore, any fair historical narrative belies
the theory that SQ 711 is unprecedented in our jur-
isprudence. Id. at 633. Explicit bans on same-sex
marriage are not especially venerable, but neither
are they in their infancy. See Nancy Kubasek et al.,
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
Amending the Defense of Marriage Act: A Neces-
sary Step Toward Gaining Full Legal Rights for
SameSex Couples, 19 Am. U.J. Gender Soc. Pol'y
& L. 959, 964 n.32 (2011) (Maryland became the
first state to define marriage as between a man and
a woman in 1973....).
*27 More to the point, SQ 711 and parallel en-
actments have only made explicit a tacit rule that
until recently had been universal and unquestioned
for the entirety of our legal history as a country:
that same-sex unions cannot be sanctioned as mar-
riages by the State. See Windsor, 133 S.Ct. at 2689
([M]arriage between a man and a woman no doubt
had been thought of by most people as essential to
the very definition of that term and to its role and
function throughout the history of civilization.).
Even before the States made the rule explicit, mar-
riage laws that lacked express gender limitations
had the same force and effect as bans on same-sex
marriage. See Dean v. District of Columbia, 653
A.2d 307, 310 (D.C.1995) (Ferren, J., concurring in
part and dissenting in part, joined by Terry and
Steadman, JJ.); Jones v. Hallahan, 501 S.W.2d 588,
589 (Ky.Ct.App.1973); Goodridge v. Dep't of Pub.
Health, 440 Mass. 309, 798 N.E.2d 941, 953
(Mass.2003); Baker v. Nelson, 291 Minn. 310, 191
N.W.2d 185, 186 (Minn.1971); Hernandez v.
Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855
N.E.2d 1, 6 (N.Y.2006) (plurality opinion); Baker
v. State, 170 Vt. 194, 744 A.2d 864, 869 (Vt.1999);
see also Lewis v. Harris, 188 N.J. 415, 908 A.2d
196, 208 (N.J.2006) (With the exception of Mas-
sachusetts, every state's law, explicitly or impli-
citly, defines marriage to mean the union of a man
and a woman. (emphases added)). Far from being
unprecedented, then, Romer, 517 U.S. at 633,
same-sex marriage bans were literally the only pre-
cedent in all fifty states until little more than a dec-
ade ago. See Michael Sant' Ambrogio, The Ex-
traLegislative Veto, 102 Geo. L.J. 351, 378 (2014)
(noting that Massachusetts became the first state in
the country to legally acknowledge same-sex mar-
riages in 2003); see also David B. Oppenheimer et
al., Religiosity and SameSex Marriage in the
United States and Europe, 32 Berkeley J. Int'l L.
195, 195 (2014) (Twenty years ago, no country in
the world and not a single U.S. state had authorized
same-sex marriage.). Whether right or wrong as a
policy matter, or even right or wrong as a funda-
mental-rights matter, this ancient lineage estab-
lishes beyond peradventure that same-sex marriage
bans are not qualitatively unprecedentedthey are
actually as deeply rooted in precedent as any rule
could be.
FN9
See Hernandez, 821 N.Y.S.2d 770,
855 N.E.2d at 8 (Until a few decades ago, it was
an accepted truth for almost everyone who ever
lived, in any society in which marriage existed, that
there could be marriages only between participants
of different sex. A court should not lightly conclude
that everyone who held this belief was irrational,
ignorant or bigoted. We do not so conclude.).
A useful point of comparison in this regard can
be located in the Ninth Circuit's Proposition 8 case,
which nicely demonstrates the sort of qualitatively
abnormal lawmaking that triggers the animus doc-
trine, and nicely demonstrates the absence of any
such lawmaking here.
By way of background on the Proposition 8
case, prior to the pertinent federal litigation, Cali-
fornia had codified a statute withholding the offi-
cial designation of marriage from same-sex
couples. Perry v. Brown, 671 F.3d 1052, 1065 (9th
Cir.2012), vacated on other grounds sub nom.
Hollingsworth v. Perry, U.S. , 133 S.Ct.
2652, 186 L.Ed.2d 768 (2013). The California Su-
preme Court declared the statute unlawful as a viol-
ation of the state constitution. Id. at 1066. Follow-
ing the court's decision, a referendum succeeded in
adding an amendmentProposition 8to the Cali-
fornia Constitution defining marriage in man-
woman terms, thereby nullifying the judicial rul-
ing. Id. at 1067.
*28 The Ninth Circuit struck down Proposition
8 on federal constitutional grounds. Id. at 1096. It
began its analysis by noting that Proposition 8
worked a singular and limited change to the Cali-
fornia Constitution: it stripped same-sex couples of
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
the right to have their committed relationships re-
cognized by the State with the designation of
marriage, which the state constitution had previ-
ously guaranteed them. Id. at 1076. In view of that
effect, the Ninth Circuit posed the question presen-
ted by the appeal thusly:
[D]id the People of California have legitimate
reasons for enacting a constitutional amendment
that serves only to take away from same-sex
couples the right to have their lifelong relation-
ships dignified by the official status of marriage,
and to compel the State and its officials and all
others authorized to perform marriage ceremonies
to substitute the label of domestic partnership for
their relationships?
Id. at 1079 (internal quotation marks omitted).
The Ninth Circuit stressed the distinction between
this removal of an established right and the decision
not to confer a right at all. See id. at 107980
(Withdrawing from a disfavored group the right to
obtain a designation with significant societal con-
sequences is different from declining to extend that
designation in the first place.... The action of chan-
ging something suggests a more deliberate purpose
than does the inaction of leaving it as is.).
With the question framed in this fashion, the
Ninth Circuit determined that Proposition 8 failed
constitutional scrutiny under Romer's animus ana-
lysis. See Perry, 671 F.3d at 1081. In reaching that
determination, the Perry court returned time and
time again to the fact that Proposition 8 had erased
a previously-existing right to marriage that had
been enjoyed by same-sex couples before the rati-
fication of the amendment. See id. (Like Amend-
ment 2 [in Romer], Proposition 8 has the peculiar
property of withdraw[ing] from homosexuals, but
no others, an existing legal righthere, access to
the official designation of marriagethat had
been broadly available .... (second alteration in
original) (emphases added) (citation omitted)
(quoting Romer, 517 U.S. at 632)); id. (Like
Amendment 2, Proposition 8 ... carves out an ex-
ception to California's equal protection clause, by
removing equal access to marriage, which gays and
lesbians had previously enjoyed .... (emphasis ad-
ded) (internal quotation marks omitted)); id.
([T]he surgical precision with which [Proposition
8] excises a right belonging to gay and lesbian
couples makes it even more suspect. A law that has
no practical effect except to strip one group of the
right to use a state-authorized and socially mean-
ingful designation is all the more unprecedented
and unusual than a law that imposes broader
changes, and raises an even stronger inference that
the disadvantage imposed is born of animosity to-
ward the class of persons affected. (emphases ad-
ded) (quoting Romer, 517 U.S. at 63334)); id. at
1096 (By using their initiative power to target a
minority group and withdraw a right that it pos-
sessed, without a legitimate reason for doing so, the
People of California violated the Equal Protection
Clause. (emphasis added)).
*29 There is no need in the context of this case
to pass upon the correctness vel non of the Ninth
Circuit's ultimate conclusionviz., that Proposition
8 was unconstitutional under Romer. The essential
point to glean from Perry is that it properly recog-
nized the key factor that brought Proposition 8
within the realm of Romer: that Proposition 8 re-
moved from homosexuals a right they had previ-
ously enjoyedmarriagejust as Amendment 2
did in Romer with respect to the right to secure
civil-rights protections through the political pro-
cess. See Romer, 517 U.S. at 632 ([T]he amend-
ment has the peculiar property of imposing a broad
and undifferentiated disability on a single named
group, an exceptional and ... invalid form of legisla-
tion.). That is precisely the sort of atypical, hostile
state action that exposes a law to animus analysis.
And it is precisely the sort of action that is nowhere
to be seen in the case before us today.
Quite unlike the California situation, it is pat-
ent and undisputed that gay and lesbian couples in
Oklahoma never had the right to marryas such
couples never had the right to marry in any State
that did not expressly permit them to. See Lewis,
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
908 A.2d at 208 (With the exception of Massachu-
setts, every state's law, explicitly or implicitly,
defines marriage to mean the union of a man and a
woman. (emphases added)). The Oklahoma law
effectuated no change at all to the status quo in that
regard: the plaintiffs could not marry in Oklahoma
before SQ 711, and they could not marry after it. A
studious and conscientious reading of Romer seem-
ingly led the Ninth Circuit in Perry to the conclu-
sion that the deprivation of a right that would other-
wise exist makes all the difference in deciding
whether or not to invoke the strong medicine of the
animus doctrine. Cf. Sevcik v. Sandoval, 911
F.Supp.2d 996, 1019 (D.Nev.2012) (Because there
has never been a right to same-sex marriage in
Nevada, Romer and Perry are inapplicable here as
to [a same-sex marriage ban].). As noted, there
was no preexisting recognized right to same-sex
marriage in Oklahoma. In other words, there was no
predicate right to same-sex marriage to support the
Perry deprivation scenario. Thus, my examination
of Perry underscores the absence here of the sort of
qualitatively abnormal lawmaking that customarily
triggers the animus doctrine.
In sum, for the foregoing reasons, it is patent
that Romer's animus analysis cannot support an as-
sault on SQ 711.
B
Just like the first factor, the second
factorrelating to the historical role of the law-
making sovereign in regulating the field in ques-
tionalso signals the inapplicability of the animus
doctrine on these facts. As I discussed earlier, inso-
far as Windsor drew upon animus law, it did so be-
cause DOMA veered sharply from the deferential
customs that had previously defined the contours of
federal policy regarding State marriage regulations.
See Part I.B.2, supra. In contrast, when the same-
sex marriage provisions of a State are the subject of
the challenge, those same federalism concerns
found in Windsor militate powerfully in the oppos-
ite direction viz., against an animus determina-
tion. To see why this is so, recall that in striking
down the federal statute, DOMA, Windsor returned
repeatedly to the fact that state legislatures are en-
trusted in our federalist system with drawing the
boundaries of domestic-relations lawso long as
those boundaries are consistent with the mandates
of the federal Constitution. See 133 S.Ct. at 2691
(State laws defining and regulating marriage, of
course, must respect the constitutional rights of per-
sons, but, subject to those guarantees, regulation of
domestic relations is an area that has long been re-
garded as a virtually exclusive province of the
States. (citation omitted) (internal quotation marks
omitted)); id. at 2692 (Against this background
DOMA rejects the long-established precept that the
incidents, benefits, and obligations of marriage are
uniform for all married couples within each State,
though they may vary, subject to constitutional
guarantees, from one State to the next.). But, when
the subject of the challenge is a State-enacted same-
sex marriage ban, those federalism interests come
into play on the other side of the board . Id. at
2697 (Roberts, C.J., dissenting). Far from showing
animus, then, Windsor's concern with traditional
federalist spheres of power is a compelling indica-
tion that SQ 711which is a natural product of the
State of Oklahoma's sphere of regulatory con-
cernis not inspired by animus.
*30 To summarize, the two factors that courts
are duty-bound to consider in assaying for animus
both counsel unequivocally here against an animus
finding. Simply put, boiling these two factors down
to their essence and applying them here, the chal-
lenged Oklahoma law does not sweep broadlyit
excludes gays and lesbians from the single institu-
tion of marriageand it cannot sensibly be depic-
ted as unusual where the State was simply exer-
cising its age-old police power to define marriage
in the way that it, along with every other State, al-
ways had. See Conkle, supra, at 40 (When the
question turns from DOMA to state laws, ... there
are ... reasons for avoiding animus-based reasoning.
In the first place, the state-law context eliminates
the federalism concern that was present in Windsor
and that the Court directly linked to its animus ra-
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tionale.).
Romer and Windsor both involved extraordin-
arily unusual pieces of lawmaking: Romer because
Colorado embedded in its constitution the depriva-
tion of all specially designated civil-rights protec-
tions that an entire group might otherwise enjoy,
and Windsor because Congress exercised federal
power in a state arena for the sheer purpose of ex-
cluding a group from an institution that it otherwise
had a virtually nonexistent role in defining. In stark
contrast, SQ 711 formalized a definition that every
State had employed for almost all of American his-
tory, and it did so in a province the States had al-
ways dominated. Consequently, SQ 711 is not
plagued by impermissible animus.
III
For the foregoing reasons, I conclude that the
district court correctly found that the animus doc-
trine was inapplicable here. I respectfully concur.
KELLY, Circuit Judge, concurring in part and dis-
senting in part.
Plaintiffs made an unusual decision in this
case.
FN1
They challenged only the constitutional
amendment concerning same-gender marriage.
Okla. Const. art. II, 35. They ignored the earlier-
enacted statutory provisions which define and only
recognize marriage as between persons of opposite
gender. Okla. Stat. tit. 43, 3(A), 3.1. They also
sued the wrong defendant when it comes to non-
recognition of out-of-state same-gender marriages;
the clerk has no occasion to pass on the validity of
out-of-state marriages. The district court noticed
both of these problems, yet entered an injunction
concerning the constitutional amendment's defini-
tion of marriage. See Bishop v. United States ex rel.
Holder, 962 F.Supp.2d 1252, 1296
(N.D.Okla.2014); Fed.R.Civ.P. 65(d)(1)(C)
(requiring specificity in injunctions).
I concur with the court that the Barton couple
lacks standing to challenge the non-recognition pro-
vision, but I differ on whether the law of the case
applies. I dissent from this court's conclusion that
the Plaintiffs have standing even though they did
not challenge the underlying statutes. Thus, I would
not reach the merits for lack of standing. As I have
not persuaded my colleagues, were I to reach the
merits of the Bishop couple's claim, I would dissent
from this court's conclusion that Oklahoma's defini-
tion of marriage is invalid because marriage is a
fundamental right and the State's classification can-
not survive strict scrutiny. Instead, I would apply
rational basis review and uphold Oklahoma's defin-
ition of marriage.
A. StandingFailure to Challenge the Underlying
Statutes
*31 Plaintiffs (Bishop couple) failed to chal-
lenge Oklahoma's statutory requirement concerning
Who may marry which provides:
Any unmarried person who is at least eighteen
(18) years of age and not otherwise disqualified
is capable of contracting and consenting to mar-
riage with a person of the opposite sex.
Okla. Stat. tit. 43, 3(A). The district court
was aware of the statutory prohibition and stated
that no party addressed the standing problems,
but was satisfied that enjoining section A of the
constitutional provision redresses a concrete injury
suffered by the Bishop couple. Bishop, 962
F.Supp.2d at 1259 n. 2, 1274 n. 19, 1279, 1296.
Section A provides:
Marriage in this state shall consist only of the
union of one man and one woman. Neither this
Constitution nor any other provision of law shall
be construed to require that marital status or the
legal incidents thereof be conferred upon unmar-
ried couples or groups.
Okla. Const. art. II, 35(A). Section C adds
criminal liability for non-compliance. Id. 35(C).
No matter how important the issue, a federal court
must consider standing, including whether the in-
jury is likely to be redressed by a favorable de-
cision. Hollingsworth v. Perry, U.S. ,
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
, 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768
(2013).
Plaintiffs (Barton couple) failed to challenge
Oklahoma's statutory non-recognition requirement
which provides:
A marriage between persons of the same gender
performed in another state shall not be recog-
nized as valid and binding in this state as of the
date of the marriage.
Okla. Stat. tit. 43, 3.1. The constitutional
non-recognition provision is the same. Okla. Const.
art. II, 35(B). The district court correctly ob-
served that any injury from nonrecognition comes
from both of these provisions. Bishop, 962
F.Supp.2d at 1266.
Enjoining section A of the constitutional
amendment would not solve the Bishop couple's
problem because the statute, Okla. Stat. tit. 43,
3(A), contemplates marriage with a person of the
opposite sex. Enjoining section B of the constitu-
tional amendment would not solve the Barton
couple's problem because the statute, Okla. Stat. tit.
43, 3. 1, proscribes the same thing: recognition of
same-gender marriages from other states.
According to this court, the statutory provi-
sions are not enforceable independent of the consti-
tutional provisions. But that cannot be right. In Ok-
lahoma, marriage arises out of contract and requires
consent by legally competent parties. Okla. Stat. tit.
43, 1. Okla. Stat. tit. 43, 3(A) imposes several
requirements including being (1) unmarried, (2) at
least age 18, and (3) not otherwise disqualified, for
the capacity to contract and consent to opposite
gender marriage. The constitutional provision
defines marriage as one man and one woman and
also provides a rule of construction for the constitu-
tion and any other provision of law. Okla. Const.
art. II, 35(A). Although the non-recognition pro-
visions have identical language, one would not pre-
sume that the electorate would engage in a useless
act. If anything, the language in the constitutional
provisions suggests an intent to augment the stat-
utory provisions, as was done in other states. See
Bishop, 962 F.Supp.2d at 128384 (suggesting sen-
timent to create an independent bar); see also supra
n. 1. Indeed, that is the argument of the State. Aplt.
Br. 33.
*32 The most serious problem with this court's
analysis is that it is derived from cases where provi-
sions conflict; it would be an extravagant reading to
conclude that Oklahoma is not empowered to enact
a consistent and clarifying constitutional provision
without replacing the statutory provision. The rule
stated in Fent v. Henry, 257 P.3d 984 (Okla.2011),
that a constitutional amendment takes the place of
all former laws existing upon the subject with
which it deals,
rests upon the principle that when it is apparent
from the framework of the revision that whatever
is embraced in the new law shall control and
whatever is excluded is discarded, decisive evid-
ence exists of an intention to prescribe the latest
provisions as the only ones on that subject which
shall be obligatory.
Id. at 992 n. 20. We have no such decisive
evidence in this case because there is no
framework of revision when the constitutional
amendment in no way contradicts the statutes. Al-
though this court contends that the constitutional
amendment is a complete scheme, Lankford v.
Menefee, 45 Okla. 228, 145 P. 375, 376
(Okla.1914), concerning same-gender marriage, the
amendment certainly does not replace the other
marriage qualifications contained in Okla. Stat. tit.
43, 3(A). Nor should it replace the qualification
with a person of the opposite sex. Of course, the
most important canon of construction must be fidel-
ity to the intent of the electorate and its representat-
ives: a canon that is not well-served by disregarding
Oklahoma's statutes and focusing only on the
amendment. This court's argument that it can envi-
sion no scenario where the clerk could enforce the
statute but not the amendment fails to appreciate
the independent and complementary nature of the
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
provisions.
Invalidating state law provisions as violative of
the Constitution is one of the most serious tasks
performed by a federal court. Though the Plaintiffs
apparently thought otherwise, state statutes do mat-
ter. Plaintiffs, who have the burden on standing,
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), cannot
show redressability.
B. Law of the Case
The district court was correct in concluding
that the Barton couple lacks standing to challenge
the non-recognition constitutional provision. See
Bishop, 962 F.Supp.2d at 127273. This court con-
cludes that the law of the case doctrine extended to
this challenge, and the court clerk would have been
the proper defendant but for changed circum-
stances, i.e., the affidavit of the court clerk. The
law of the case doctrine does not apply. The court
clerk's duties are ministerial, and she has no author-
ity to recognize out-of-state marriages. See Okla.
Stat. tit. 43, 5(B)(1) (listing the duties of the
clerk). The Barton couple concede that they never
asked the court clerk to recognize their California
license.
The law of the case doctrine is one of discre-
tion, not power, and applies only to issues actually
decided. Pepper v. United States, U.S. ,
, 131 S.Ct. 1229, 125051, 179
L.Ed.2d 196 (2011). The issue actually decided in
the prior appeal of this case, Bishop I, was that the
Attorney General and the Governor were not proper
defendants. Bishop v. Oklahoma, 333 F. App'x 361,
365 (10th Cir.2009). We stated:
*33 The Couples claim they desire to be married
but are prevented from doing so, or they are mar-
ried but the marriage is not recognized in Ok-
lahoma. These claims are simply not connected to
the duties of the Attorney General or the Gov-
ernor. Marriage licenses are issued, fees collec-
ted, and the licenses recorded by the district court
clerks. See Okla. Stat. tit. 28, 31; Okla. Stat. tit.
43, 5. [A] district court clerk is judicial per-
sonnel and is an arm of the court whose duties
are ministerial, except for those discretionary du-
ties provided by statute. In the performance of [a]
clerk's ministerial functions, the court clerk is
subject to the control of the Supreme Court and
the supervisory control that it has passed down to
the Administrative District Judge in the clerk's
administrative district. Speight v. Presley, 203
P.3d 173, 177 (Okla.2008). Because recognition
of marriages is within the administration of the
judiciary, the executive branch of Oklahoma's
government has no authority to issue a marriage
license or record a marriage.
Id. at 365 (alterations in original). We stressed
that the problem was the alleged injury to the
Couples could not be caused by any action of the
Oklahoma officials named. Id. In noting that
Plaintiffs never sought an injunction, we stressed
that the Plaintiffs never identified any action that
would be taken by those officials, that they act or
refrain from acting. Id. at 365 n. 6.
Merely because we described the Plaintiffs' two
claims at the beginning of the passage cannot alter
the import of what follows. No reasonable reading
results in a conclusion that the court clerk was a
proper defendant for a challenge to the amend-
ment's non-recognition provision. The only func-
tions mentioned are issuance of a license, collection
of fees, and recording a license. As stated by the
district court: The Bishop couple has proven
standing because they sought an Oklahoma mar-
riage license from Smith, Smith denied them such
license, and Smith did so based upon their status as
a same-sex couple. Unlike with Part B, the Bishop
couple has clearly demonstrated Smith's connection
to their injury. Bishop, 962 F.Supp.2d at 1274.
Here, the Barton couple had the burden to show
that the court clerk had some authority over the
nonrecognition provision and that their injuries are
fairly traceable to her. Cressman v. Thompson, 719
F.3d 1139, 114546 (10th Cir.2013); Bronson v.
Swensen, 500 F.3d 1099, 110910 (10th Cir.2007).
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Nothing in Bishop I remotely suggested that
the court clerk was the proper defendant for any
challenge. To the contrary, the panel discussed the
clerk's authority and that recognition of marriages
is within the administration of the judiciary. Bish-
op, 333 F. App'x at 365. Moreover, the panel in
Bishop I relied heavily on Bronson. Bronson
stressed that a plaintiff must establish that this de-
fendant caused the injury, and an injunction against
this defendant would provide relief. 500 F.3d at
111112. Merely because the clerk is considered
judicial personnel and has ministerial power over
some aspects of marriage cannot change the fact
that she has no power to recognize out-of-state mar-
riages. The district court's analysis is consistent
with the care this court has taken in the past with
standing. See Cressman, 719 F.3d at 114547;
Bronson, 500 F.3d at 111112. The standing prob-
lem is of the Barton couple's own making: as this
court notes, Plaintiffs could very easily have sought
to file a state tax return and then sued the respons-
ible official were they not allowed.
In summary, I would hold that the Barton and Bish-
op couples lack standing because they failed to
challenge Oklahoma's statutes which must be re-
spected as an independent bar to relief. I agree with
the court that the Barton couple lacks standing be-
cause they sued the wrong defendantone with no
power to recognize their out-of-state marriage. As I
have not persuaded my colleagues on the definition
of marriage claim, I proceed to its merits.
C. Merits
*34 I adhere to my views in Kitchen v. Herbert,
F.3d , 2014 WL 2868044, at *33 (10th
Cir. June 25, 2014) (Kelly, J., concurring in part
and dissenting in part). Same-gender marriage is a
public policy choice for the states, and should not
be driven by a uniform, judge-made fundamental
rights analysis. At a time when vigorous public de-
bate is defining policies concerning sexual orienta-
tion, this court has intervened with a view of mar-
riage ostensibly driven by the Constitution. Unfor-
tunately, this approach short-circuits the healthy
political processes leading to a rough consensus on
matters of sexual autonomy, and marginalizes those
of good faith who draw the line short of same-
gender marriage.
Essentially, relying upon substantive due pro-
cess, this court has deduced [a right] from abstract
concepts of personal autonomy rather than anchor-
ing it to this country's history and legal traditions
concerning marriage. See Washington v. Glucks-
berg, 521 U.S. 702, 725 (1997). When it comes to
deciding whether a state has violated a fundamental
right to marriage, the substantive due process ana-
lysis must consider the history, legal tradition, and
practice of the institution. Id. at 721. Although
Plaintiffs remind us history and tradition are not ne-
cessarily determinative, Aplee. Br. 65, Oklahoma's
efforts to retain its definition of marriage are be-
nign, and very much unlike race-based restrictions
on marriage invalidated in Loving v. Virginia, 388
U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).
This court's fundamental rights analysis turns
largely on certain personal aspects of marriage
including the emotional support and public com-
mitment inherent in the historically accepted
definition of marriage. Kitchen, 2014 WL 2868044,
at * 1415 (relying on Turner v. Safley. 482 U.S.
78, 9596, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)).
But analyzing marriage primarily as the public re-
cognition of an emotional union is an a historical
understanding of marriage. Western marriage has
historically included elements besides emotional
support and public commitment, including (1) ex-
clusivity, (2) monogamy, (3) non-familial pairs, and
(4) gender complementarity, distinct from procre-
ation. Not surprisingly, this historical understand-
ing and practice is the basis for much of state law.
The core marital norms throughout Oklahoma's his-
tory have included these elements. See Okla. Stat.
tit. 43, 201 (obligation of fidelity); Okla. Const.
art. I, 2 (prohibiting polygamy); Okla. Stat. tit.
43, 3(C) (prohibiting incestuous marriage); Okla.
Const. art. II, 35(A) (defining marriage as the
union of one man and one woman); Okla. Stat. tit.
43, 3(A) (marriage qualifications for opposite-
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gender marriage).
Plaintiffs essentially argue that the scope of the
right is unlimited. Aplee. Br. 65. In Kitchen, this
court accepted a similar argument: that the defini-
tion of marriage cannot be determined by who has
historically been denied access to the right. See Kit-
chen, 2014 WL 2868044 at * 18. But the definition
of marriage plays an important role in determining
what relationships are recognized in the first place.
Polygamous and incestuous relationships have not
qualified for marriage because they do not satisfy
the elements of monogamy and non-familial pairs,
regardless of the individual status of the parties
(who have historically been denied access to the
right). Thus, the traditional elements of marriage
have determined the relationships that have been re-
cognized, not the other way around.
*35 This court shortchanges the analysis of
whether the fundamental right to marriage includes
same-gender couples by asserting, [o]ne might just
as easily have argued that interracial couples are by
definition excluded from the institution of mar-
riage. Id. at *19; accord Aplee. Br. 66. But, as far
as I can tell, no one in Loving v. Virginia, 388 U.S.
1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), could
have argued that racial homogeneity was an essen-
tial element of marriage. Here, the limitation on
marriage is derived from the fundamental elements
of marriage, elements not implicated in invalidating
marriage restrictions on inmates ( Turner v. Safley,
482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987))
or fathers with support obligations ( Zablocki v.
Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d
618 (1978)).
Simply put, none of the Supreme Court cases
suggest a definition of marriage so at odds with his-
torical understanding. The Court has been vigilant
in striking down impermissible constraints on the
right to marriage, but there is nothing in the earlier
cases suggesting that marriage has historically been
defined as only an emotional union among willing
adults. Removing gender complementarity from the
historical definition of marriage is simply contrary
to the careful analysis prescribed by the Supreme
Court when it comes to substantive due process.
Absent a fundamental right, traditional rational
basis equal protection principles should apply, and
apparently as a majority of this panel believes,
FN2
the Plaintiffs cannot prevail on that basis. Thus, any
change in the definition of marriage rightly belongs
to the people of Oklahoma, not a federal court.
APPENDIX A
27 SCHOLARS OF FEDERALISM AND JUDI-
CIAL RESTRAINT
Attorneys on the Brief: Anthony T. Caso, John C.
Eastman, D. John Sauer
46 EMPLOYERS AND ORGANIZATIONS REP-
RESENTING EMPLOYERS
Attorneys on the Brief: Meghan Bailey, Susan
Baker Manning, John V. McDermott, Lauren
Schmidt, Margaret Sheer, Michael Louis Whit-
lock
57 OTHER FAMILY LAW PROFESSORS
Attorneys on the Brief: Rita F. Lin, Laura W.
Weissbein
93 INDIVIDUAL FAITH LEADERS IN OK-
LAHOMA AND UTAH
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
9TO5, NATIONAL ASSOCIATION OF WORK-
ING WOMEN
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John M. Mejia
ACLU OF OKLAHOMA
John M. Mejia
ACLU OF UTAH
John M. Mejia
Page 34
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AFFIRMATION
ALDRICH, JOHN
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
ALL SOULS UNITARIAN CHURCH OF TULSA
ALLEN, DOUGLAS W.
*36 Attorneys on the Brief: David C. Walker
ALVARE, HELEN M.
Attorneys on the Brief: Richard D. White
AMBROSE, DOUGLAS
Attorneys on the Brief: Frank D. Mylar
AMERICAN CIVIL LIBERTIES UNION
Farrell, Brady R. Henderson, Ryan D. Kiessel,
John M. Mejia
AMERICAN LEADERSHIP FUND
AMERICAN MILITARY PARTNER ASSOCI-
ATION
Attorneys on the Brief: Abbe David Lowell,
Christopher Dowden Man
AMERICAN PSYCHOLOGICAL ASSOCIATION
Attorneys on the Brief: Nathalie F.P. Gilfoyle,
Paul March Smith
AMERICAN SOCIOLOGICAL ASSOCIATION
Attorneys on the Brief: Carmine D. Boccuzzi,
Mark A. Lightner, Andrew P. Meiser, Andra
Troy
AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
ANDERSON, JANNA
Attorneys on the Brief: Dani Hartvigsen
ANDERSON, RYAN
Attorneys on the Brief: Michael Francis Smith
ANTIDEFAMATION LEAGUE
Attorneys on the Brief: Cheryl R. Drazin, Steven
M. Freeman, Seth M. Marnin, Rocky Chiu-feng
Tsai
API EQUALITYLA
John M. Mejia
ASIAN AMERICANS ADVANCING JUSTICE,
ASIAN AMERICANS ADVANCING
JUSTICEASIAN LAW CAUCUS
John M. Mejia
ASIAN AMERICANS ADVANCING JUSTICE,
LOS ANGELES
John M. Mejia
JUSTICECHICAGO
John M. Mejia
AUSTIN LGBT BAR ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
BAR ASSOCIATION OF SAN FRANCISCO
Jerome Cary Roth
BARDAGLIO, PETER
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
Page 35
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BASCH, NORMA
BAY AREA LAWYERS FOR INDIVIDUAL
FREEDOM
Jerome Cary Roth
BECKET FUND FOR RELIGIOUS LIBERTY
Attorneys on the Brief: Eric C. Rassbach, Asma
Tasnim Uddin
BELTRAN, LYNN
Attorneys on the Brief: Jacob Harris Hupart, Jar-
en Janghorbani, Robert A. Kaplan, Joshua Kaye,
Alan B. Morrison
BELZ, HERMAN
BEND THE ARC: A JEWISH PARTNERSHIP
FOR JUSTICE
feng Tsai
BENNE, ROBERT D.
BLAIR, MARIANNE
Weissbein
BOWLER, SHAUN
*37 Attorneys on the Brief: Mark William Mosi-
er, Jennifer Schwartz
BOYLE, DAVID
Attorneys on the Brief: David Boyle
CAIN, BRUCE
Jennifer Schwartz
CALIFORNIA
Attorneys on the Brief: Kamala D. Harris, Peter
Sacks
CAMP FIRE GREEN COUNTRY, INC.
Attorneys on the Brief: Christy L. Anderson,
Sarah Elizabeth April, Kathryn R. DeBord,
Stephen D. Gurr
CARBADO, DEVON
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
CARLSON, ALLAN C.
CARROLL, JASON S.
Attorneys on the Brief: Lynn Dennis Wardle
CATHEDRAL OF HOPE OF OKLAHOMA CITY
CATO INSTITUTE
Attorneys on the Brief: Ilya Shapiro, Elizabeth B.
Wydra
CENTER FOR CONSTITUTIONAL JURISPRU-
DENCE
CENTRAL CONFERENCE OF AMERICAN
RABBIS
feng Tsai
CHRISTENSEN, LAVAR
Attorneys on the Brief: Robert Theron Smith
CHURCH OF THE OPEN ARMS OF OK-
LAHOMA CITY
CHURCH OF THE RESTORATION OF TULSA
CIMARRON ALLIANCE
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John M. Mejia
CLAYTON, CORNELL W.
Jennifer Schwartz
COLAGE
Stephen D. Gurr
COLORADO GAY LESBIAN BISEXUAL
TRANSGENDER (GLBT) BAR ASSOCIATION
Jerome Cary Roth
COLORADO WOMEN'S BAR ASSOCIATION
CONGREGATION KOLAMI OF SALT LAKE
CITY
CONNECTICUT
Attorneys on the Brief: George Jepsen, Peter
Sacks
CONSTITUTIONAL ACCOUNTABILITY CEN-
TER
Attorneys on the Brief: Shapiro Ilya, Elizabeth B.
Wydra
CONSTITUTIONAL LAW SCHOLARS
Attorneys on the Brief: Lori Ann Alvino McGill,
Geoffrey R. Stone
COONTZ, STEPHANIE
COTT, NANCY
COVENANT NETWORK OF PRESBYTERIANS
COX, DUANE MORLEY
Attorneys on the Brief: Duane Morley Cox
CURTIS, G.M.
*38 Attorneys on the Brief: Frank D. Mylar
DELAWARE
Attorneys on the Brief: Joseph R. Biden III, Peter
Sacks
DISTRICT OF COLUMBIA
Attorneys on the Brief: Irvin B. Nathan, Peter
Sacks
DITZ, TOBY L.
DOLOVICH, SHARON
DUBLER, ARIELA R.
EDWARDS, LAURA F.
EGGEBEEN, DAVID J.
Attorneys on the Brief: David C. Walker
EMERGENCY INFANT SERVICES
Stephen D. Gurr
EMERSON, MICHAEL O.
EPISCOPAL DIOCESE OF UTAH
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
EPWORTH UNITED METHODIST CHURCH OF
OKLAHOMA CITY
EQUAL RIGHTS ADVOCATES
EQUALITY UTAH
Attorneys on the Brief: Troy L. Booher, Clifford
J. Rosky, Noella A. Sudbury, Michael D. Zim-
merman
FAMILY EQUALITY COUNCIL
Stephen D. Gurr
FAMILY RESEARCH COUNCIL
Attorneys on the Brief: Paul Benjamin Linton
FELLOWSHIP CONGREGATIONAL UNITED
CHURCH OF CHRIST OF TULSA
FIRST UNITARIAN CHURCH OF OKLAHOMA
CITY
FLUKE, CHARLES
Alan B. Morrison
FREEDOM TO MARRY
Jerome Cary Roth
FRIENDS FOR LESBIAN, GAY, BISEXUAL,
TRANSGENDER, AND QUEER CONCERNS
GAY & LESBIAN ADVOCATES & DEFENDERS
Attorneys on the Brief: Felicia H. Ellsworth,
Mark C. Fleming, Leah M. Litman, Dina Bernick
Mishra, Kenneth Lee Salazar, Alan E. Schoen-
feld, Paul Reinherz Wolfson
GEORGE, ROBERT P.
GEORGE, TIMOTHY
GIRGIS, SHERIF
GLMA: HEALTH PROFESSIONALS ADVAN-
CING LGBT EQUALITY
Attorneys on the Brief: Nicholas M. O'Donnell
GROSSBERG, MICHAEL
HADASSAH, THE WOMEN'S ZIONIST ORGAN-
IZATION OF AMERICA, INC.
*39 Attorneys on the Brief: Samual P. Bickett,
Rebecca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
HAIDERMARKEL, DONALD P.
Jennifer Schwartz
HARTOG, HENDRIK
HAWKINS, ALAN J.
HAYASHI, SCOTT
HERMAN, ELLEN
HERO, RODNEY
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
Jennifer Schwartz
HINDU AMERICAN FOUNDATION
feng Tsai
HISPANIC NATIONAL BAR ASSOCIATION
John M. Mejia
HISTORIANS OF ANTIGAY DISCRIMINATION
Attorneys on the Brief: Katie D. Fairchild,
Madeline H. Gitomer, Jessica Black Livingston,
Katherine A. Nelson, Aaron M. Paul, Erica
Knievel Songer, Catherine Emily Stetson, Mary
Helen Wimberly
HODES, MARTHA
HOLLINGER, JOAN HEIFETZ
Weissbein
HOWARD UNIVERSITY SCHOOL OF LAW
CIVIL RIGHTS CLINIC
Attorneys on the Brief: David Scott Flugman
HUMAN RIGHTS CAMPAIGN
John Mejia
HUNTER, NAN D.
ILLINOIS
Attorneys on the Brief: Lisa Madigan, Peter
Sacks
INTERFAITH ALLIANCE FOUNDATION
feng Tsai
INTERFAITH ALLIANCE OF COLORADO
feng Tsai
IOWA
Attorneys on the Brief: Tom Miller, Peter Sacks
JAMES, HAROLD
JAPANESE AMERICAN CITIZENS LEAGUE
feng Tsai
JEWISH SOCIAL POLICY ACTION NETWORK
feng Tsai
JOHNSON, BYRON R.
JOSLIN, COURTNEY
Weissbein
JUSTICE, STEVEN
KERBER, LINDA K.
KESHET
feng Tsai
KESSLERHARRIS, ALICE
*40 Attorneys on the Brief: Orly Degani, Daniel
KOONS, ROBERT C.
Page 39
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
KURTZ, STANLEY
LAMBDA LEGAL DEFENSE AND EDUCATION
FUND, INC.
Attorneys on the Brief: Jennifer C. Pizer, Susan
Sommer, Camilla Taylor, Kenneth D. Upton
LEADERSHIP CONFERENCE ON CIVIL AND
HUMAN RIGHTS
John Mejia
LEE, TAEKU
Jennifer Schwartz
LEGAL MOMENTUM
LEGAL VOICE
LEVI, MARGARET
Jennifer Schwartz
LEWIS, GREGORY B.
Jennifer Schwartz
LGBT & ALLIED LAWYERS OF UTAH BAR
ASSOCIATION
Jerome Cary Roth
LIBERTY COUNSEL, INC.
Attorneys on the Brief: Anita Staver, Mathew D.
Staver
LITTLETON, CHRISTINE A.
LOVE HONOR CHERISH
Jerome Cary Roth
LUTHERAN CHURCHMISSOURI SYNOD
Attorneys on the Brief: Anthony T. Caso, Alexan-
der Dushku, Richard Shawn Gunnarson, Justin
W. Starr
MAINE
Attorneys on the Brief: Janet T. Mills, Peter
Sacks
MARRIAGE EQUALITY USA
Jerome Cary Roth
MARTINEZEBERS, VALERIE
Jennifer Schwartz
MARYLAND
Attorneys on the Brief: Douglas F. Gansler, Peter
Sacks
MASSACHUSETTS
Attorneys on the Brief: Martha Coakley, Michelle
L. Leung, Jonathan B. Miller, Genevieve C.
Nadeau, Peter Sacks
MAY, ELAINE TYLER
MAYERI, SERENA
MAYFLOWER CONGREGATIONAL UNITED
CHURCH OF CHRIST OF OKLAHOMA CITY
MCCANN, MICHAEL
Jennifer Schwartz
MCDERMOTT, GERALD R.
Page 40
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
MCHUGH, PAUL
Attorneys on the Brief: Gerard Vincent Bradley,
Kevin Trent Snider
MCIFF, KAY
METHODIST FEDERATION FOR SOCIAL AC-
TION
METROPOLITAN COMMUNITY CHURCHES
feng Tsai
MINNESOTA LAVENDER BAR ASSOCIATION
*41 Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
MINTZ, STEVE
MOORE, RUSSELL
MORE LIGHT PRESBYTERIANS
Attorneys on the Brief: Samual P. Bickett, Kurt
M. Denk, Rebecca Harlow, Idin Kashefipour,
Jason M. Moff, Norman C. Simon, Jeffrey S.
Trachtman, Rocky Chiu-feng Tsai
MORMONS FOR EQUALITY
MT. TABOR LUTHERAN CHURCH OF SALT
LAKE CITY
NAACP SALT LAKE BRANCH & NAACP TRI
STATE CONFERENCE OF IDAHO, NEVADA
AND UTAH
John M. Mejia
NATIONAL ACTION NETWORK
John Mejia
NATIONAL ASIAN PACIFIC AMERICAN BAR
ASSOCIATION
Jerome Cary Roth
NATIONAL ASSOCIATION FOR RESEARCH
AND THERAPY OF HOMOSEXUALITY
Attorneys on the Brief: Stephen M. Crampton,
Mary Elizabeth McAlister
NATIONAL ASSOCIATION OF EVANGELIC-
ALS
Attorneys on the Brief: Alexander Dushku,
Richard Shawn Gunnarson, Anthony R. Picarello,
Justin W. Starr
NATIONAL ASSOCIATION OF WOMEN LAW-
YERS
NATIONAL COUNCIL OF JEWISH WOMEN
feng Tsai
NATIONAL COUNCIL OF LA RAZA
John Mejia
NATIONAL GAY AND LESBIAN TASK FORCE
John Mejia
NATIONAL ORGANIZATION FOR WOMEN
FOUNDATION
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
John Mejia
NATIONAL PARTNERSHIP FOR WOMEN AND
FAMILIES
NATIONAL WOMEN'S LAW CENTER
NEHIRIM
feng Tsai
NELSON, MERRILL
NERO, NICHOLAS
Alan B. Morrison
NEW HAMPSHIRE
Attorneys on the Brief: Joseph A. Foster, Peter
Sacks
NEW MEXICO
Attorneys on the Brief: Gary K. King, Peter Sacks
NEW MEXICO LESBIAN AND GAY LAWYERS
ASSOCIATION
Jerome Cary Roth
NEW YORK
*42 Attorneys on the Brief: Peter Sacks, Eric T.
Schneiderman
O'GRADY, CLAUDIA
Alan B. Morrison
OKLAHOMA CITY UNIVERSITY SCHOOL OF
LAW OUTLAWS
Jerome Cary Roth
OKLAHOMANS FOR EQUALITY
John Mejia
OREGON
Attorneys on the Brief: Ellen F. Rosenblum, Peter
Sacks
OUTSERVESLDN
PAKALUK, CATHERINE R.
PAQUETTE, ROBERT
PARENTS, FAMILIES AND FRIENDS OF LES-
BIANS AND GAYS, INC.
Attorneys on the Brief: Andrew John Davis, Jiyun
Cameron Lee
PEOPLE FOR THE AMERICAN WAY FOUNDA-
TION
feng Tsai
PLECK, ELIZABETH
POLIKOFF, NANCY
PRESBYTERIAN WELCOME
Page 42
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
PRICE, JOSEPH
PUBLIC ADVOCATES, INC.
John Mejia
QLAWTHE GLBT BAR ASSOCIATION OF
WASHINGTON
Jerome Cary Roth
RAHE, PAUL A.
RECONCILING MINISTRIES NETWORK
RECONCILINGWORKS: LUTHERANS FOR
FULL PARTICIPATION
RECONSTRUCTIONIST RABBINICAL ASSOCI-
ATION
RECONSTRUCTIONIST RABBINICAL COL-
LEGE
REGNERUS, MARK D.
RELIGIOUS INSTITUTE, INC.
Moff, Norman C. Simon, Jeffrey S. Trachtman,
Rocky Chiu-feng Tsai
REYNOLDS, MICHAEL A.
RHODE ISLAND
Attorneys on the Brief: Peter F. Kilmartin, Peter
Sacks
ROVIG, STANFORD
Alan B. Morrison
SCHULTZ, VICKI
*43 Attorneys on the Brief: Marcia D. Greenber-
ger, Cortelyou Kenney, Emily Martin
SEARS, BRAD
SEGURA, GARY
Jennifer Schwartz
SHAMMAS, CAROLE
SHANLEY, MARY
SHERRILL, KENNETH
Jennifer Schwartz
SHIFFRIN, SEANA
SIKH AMERICAN LEGAL DEFENSE AND
EDUCATION FUND
feng Tsai
SMITH, CHARLES ANTHONY
Jennifer Schwartz
SNOW, LOWRY
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SOCIETY FOR HUMANISTIC JUDAISM
feng Tsai
SOUTH ASIAN AMERICANS LEADING TO-
GETHER
feng Tsai
SOUTHWEST WOMEN'S LAW CENTER
ST. STEPHEN'S UNITED METHODIST
CHURCH OF NORMAN, OKLAHOMA
STANLEY, AMY DRU
STATE OF ALABAMA
Attorneys on the Brief: Thomas Molnar Fisher,
Luther Strange
STATE OF ALASKA
Michael C. Geraghty
STATE OF ARIZONA
Thomas C. Horne
STATE OF COLORADO
John Suthers
STATE OF IDAHO
Lawrence G. Wasden
STATE OF INDIANA
Gregory F. Zoeller
STATE OF KANSAS
Attorneys on the Brief: Jeffrey A. Chanay, Bryan
Charles Clark
STATE OF MICHIGAN
Attorneys on the Brief: Aaron Lindstrom, Bern-
ard Eric Restuccia, Bill Schuette
STATE OF MONTANA
Timothy C. Fox
STATE OF NEBRASKA
Attorneys on the Brief: Jon Bruning, Thomas
Molnar Fisher
STATE OF OKLAHOMA
Attorneys on the Brief: Thomas Molnar Fisher, E.
Scott Pruitt
STATE OF SOUTH CAROLINA
Alan Wilson
STONEWALL BAR ASSOCIATION OF GEOR-
GIA, INC.
Jerome Cary Roth
STONEWALL BAR ASSOCIATION OF
MICHIGAN
Jerome Cary Roth
STONEWALL LAW ASSOCIATION OF GREAT-
ER HOUSTON
*44 Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
STRAUB, D'ARCY WINSTON
Attorneys on the Brief: D'Arcy Winston Straub
THE CENTER FOR URBAN RENEWAL AND
EDUCATION
Attorneys on the Brief: Stephen Kent Ehat
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
THE CHURCH OF JESUS CHRIST OF LAT-
TERDAY SAINTS
Justin W. Starr
THE COALITION OF AFRICANAMERICAN
PASTORS USA
THE EQUALITY NETWORK
John Mejia
THE ETHICS & RELIGIOUS LIBERTY COM-
MISSION OF THE SOUTHERN BAPTIST CON-
VENTION
Justin W. Starr
THE FREDERICK DOUGLASS FOUNDATION,
INC.
THE OUTLAWS
Jerome Cary Roth
THE UTAH PSYCHOLOGICAL ASSOCIATION
Paul March Smith
TRINITY CHRISTIAN CHURCH OF EDMOND,
OKLAHOMA
TRUAH: THE RABBINIC CALL FOR HUMAN
RIGHTS
feng Tsai
UNION FOR REFORM JUDAISM
UNITARIAN UNIVERSALIST ASSOCIATION
UNITED CHURCH OF CHRIST
UNITED CHURCH OF NORMAN, OKLAHOMA
UNITED STATES CONFERENCE OF CATHOL-
IC BISHOPS
Justin W. Starr
UNIVERSITY OF OKLAHOMA COLLEGE OF
LAW LEGAL GROUP FOR BUILDING TOLER-
ANCE AND ACCEPTANCE
Jerome Cary Roth
UPHAM, DAVID R.
Attorneys on the Brief: David Robert Upham
UTAH PRIDE CENTER
Attorneys on the Brief: Clifford J. Rosky, Noella
A. Sudbury, Michael D. Zimmerman
VERMONT
Attorneys on the Brief: Peter Sacks, William H.
Sorrell
WASHINGTON
Attorneys on the Brief: Robert W. Ferguson,
Peter Sacks
WELKE, BARBARA
WESTERN REPUBLICANS
Attorneys on the Brief: Stacy A. Carpenter, Ben-
nett L. Cohen, Jon R. Dedon, Sean Robert Galla-
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
gher
WILKEN, ROBERT LOUIS
WINKLER, ADAM
WOLFE, CHRISTOPHER
*45 Attorneys on the Brief: Frank D. Mylar
WOMEN OF REFORM JUDAISM
feng Tsai
WOMEN'S LAW PROJECT
WOMEN'S LEAGUE FOR CONSERVATIVE
JUDAISM
feng Tsai
WOOD, PETER W.
WORTHAM, DOUGLAS
Alan B. Morrison
FN* The names of all amicus curiae
parties are contained in Appendix A to this
Opinion.
FN1. Smith also argues that the Barton
couple does not have standing to contest
Part B of SQ 711 because they did not
challenge Okla. Stat. tit. 43, 3. 1, which
provides that [a] marriage between per-
sons of the same gender performed in an-
other state shall not be recognized as valid
and binding in this state as of the date of
the marriage. We will refer above only to
Part A in discussing plaintiffs' failure to
challenge the statutory codifications of Ok-
lahoma's same-sex marriage policy as it
relates to standing. As explained infra, the
Barton couple lacked standing to sue be-
cause they named a defendant who could
not redress their injury. Therefore, there is
no need to consider whether they lacked
standing for the alternative reason that they
failed to challenge the statutory nonrecog-
nition provision. See Niemi v. Lasshofer,
728 F.3d 1252, 1260 (10th Cir.2013)
(noting that where there are multiple
threshold issues that can be resolved
without engaging in the merits a court has
leeway to choose among them and to
take[ ] the less burdensome course
(alteration in original) (quoting Sinochem
Int'l Co. v. Malaysia Int'l Shipping Corp.,
549 U.S. 422, 431, 436, 127 S.Ct. 1184,
167 L.Ed.2d 15 (2007)).
FN2. If the court relies on the subjective
motivations of lawmakers to determine the
constitutionality of Oklahoma's two provi-
sions, Smith suggests that one might sur-
vive even if the other falls. However, as
explained in Kitchen, 2014 U.S.App. LEX-
IS 11935, at *97, we conclude that because
state laws prohibiting same-sex marriage
impinge upon a fundamental right without
satisfying the strict scrutiny test, such pro-
visions fail regardless of subjective intent.
FN3. The remaining prongs of standing as
to the Bishop couple's ability to challenge
Part A are not contested. We conclude
nonetheless the couple has satisfied those
prongs. See Alvarado v. KOBTV, L.L.C.
(Channel 4 News), 493 F.3d 1210, 1214 n.
1 (10th Cir.2007) (this court has authority
to consider standing issues sua sponte).
Having ruled that an injunction barring en-
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
forcement of Part A of SQ 711 redresses
the Bishop couple's injuryinability to
marrywe have no trouble concluding
that they satisfy the traceability require-
ment. See Cache Valley Elec. Co. v. Utah
Dep't of Transp., 149 F.3d 1119, 1123
(10th Cir.1998) (noting that in many cases,
redressability and traceability overlap as
two sides of a causation coin (quotation
omitted)). The Bishop couple sought a
marriage license from Smith's office, but
were denied because they are both women.
See Papasan v. Allain, 478 U.S. 265, 282
n. 14, 106 S.Ct. 2932, 92 L.Ed.2d 209
(1986) (a defendant responsible for gener-
al supervision of the administration by loc-
al ... officials of a challenged provision is
a proper defendant). And the Bishop
couple has identified several negative fin-
ancial consequences of that denial. See
Singleton v. Wulff, 428 U.S. 106, 113, 96
S.Ct. 2868, 49 L.Ed.2d 826 (1976)
(financial harm caused by challenged pro-
vision constitutes injury in fact).
FN4. Although the district court declined
to rule on whether the plaintiffs asserted a
fundamental right, Bishop II, 962
F.Supp.2d at 1285 n. 33, and instead ap-
plied rational basis review, id. at 1295, we
may affirm on any ground supported by
the record, so long as the appellant has had
a fair opportunity to address that ground,
Schanzenbach v. Town of Opal, 706 F.3d
1269, 1272 (10th Cir.2013) (quotation
omitted). As in Kitchen, we do not address
the question of whether a ban on same-sex
marriage might survive lesser forms of
scrutiny given our holding that such bans
burden fundamental rights.
FN5. The law of the case doctrine is inap-
plicable when a merits panel considers a
jurisdictional issue that was addressed by a
motions or mandamus panel. See Kennedy,
273 F.3d at 12991300 (mandamus panel);
Stifel, Nicolaus & Co., 81 F.3d at 1544
(motions panel). Bishop I, however, was a
fully-reasoned decision by a merits panel.
The motions-panel and mandamus-panel
exceptions are therefore not germane here.
FN6. Though worded somewhat more con-
fusingly than Baca, Smith's other central
authority for this jurisdictional argument
Public Interest Research Group of New
Jersey v. Magnesium Elektron, Inc., 123
F.3d 111 (3d Cir.1997)is to the same ef-
fect. There, the Third Circuit cabined the
pivotal footnote from Christianson to the
transfer context, reasoning that the Su-
preme Court could not have intended in
one footnote to eviscerate, in all instances,
the federal courts' prerogative to revisit im-
portant jurisdictional questions. Id. at
118. But the very reason the Magnesium
Elektron court reevaluated the jurisdiction-
al issue there was that new evidence was
presented to the district court which had a
direct bearing on the issue of standing. Id.
As explained at length below, new evid-
ence of this sort is one of the established
exceptions to the law of the case, United
States v. Irving, 665 F.3d 1184, 1192 n. 12
(10th Cir.2011), and the new evidence in
Magnesium Elektron was in fact the exact
type of new evidence at issue in the
present appeal. Magnesium Elektron is
therefore consistent with the approach
taken herein.
FN7. Insofar as Smith is arguing, impli-
citly, that application of law of the case
works a manifest injustice, that argument
is unconvincing. If any party here can
make a colorable claim of injustice, it is
the Barton couple, who named as a defend-
ant the official that the Bishop I panel told
them to name and who find out today that
they should have named someone else and,
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
as a result, are denied the satisfaction of an
explicit invalidation of Part B.
FN8. The new-evidence exception is often
set forth with reference to new evidence at
a new trial. See, e.g., Irving, 665 F.3d at
1192 n. 12; Clark, 590 F.3d at 1140. As the
authorities assembled in this section show,
a new trial is not necessary for the produc-
tion of new evidencea summary-judg-
ment affidavit can suffice.
FN9. Had Bishop I been published, its
force as law of the case would have been
significantly strengthened by its status as
law of the circuit as well. See LaShawn A.,
87 F.3d at 1395 ([W]hen both [the law of
the case and the law of the circuit] are at
work, the law-of-the-circuit doctrine
should increase a panel's reluctance to re-
consider a decision made in an earlier ap-
peal in the same case.). Because the order
was unpublished, law-of-the-case prin-
ciples are the only constraint here. See
10th Cir. R. 32.1(A) (Unpublished de-
cisions are not precedential, but may be
cited for their persuasive value. They may
also be cited under the doctrines of law of
the case, claim preclusion, and issue pre-
clusion .); Federal Practice 4478.2, at
731 (If an unpublished opinion does not
command precedential force under circuit
rules, law-of-the-case rules hold full
sway.).
FN10. The plaintiffs assert that Smith's af-
fidavit is contradicted by her answer to the
complaint, wherein she admit[ted] that
Defendants, and those subject to their su-
pervision, direction and control, are re-
sponsible for the enforcement of the laws
challenged by Plaintiffs' First Amended
Complaint. In rebuttal, Smith notes that
the challenged laws referenced in the an-
swer did not include the non-recognition
provision, since the first amended com-
plaint did not address that provision. Smith
has the better argument. The parties appar-
ently came to terms on this point in the dis-
trict court, where a minute sheet reflected
their consensus that plaintiffs' motion for
summary judgment [would] address [the
non-recognition provision], notwithstand-
ing the absence of such language in the
Amended Complaint. (Emphasis added).
Although the complaint included some
stray passages that appeared to attribute all
of the plaintiffs' injuries to SQ 711 as a
whole, it never explicitly mentioned the
non-recognition provision and repeatedly
suggested that it was the ban, in conjunc-
tion with DOMA, that caused the nonre-
cognition injury. Smith's admission in
her answer is therefore irrelevant to this is-
sue.
FN11. The authorities cited by Bishop I for
its standing determination either impose
responsibilities on court clerks with respect
to issuing marriage licenses, see Okla. Stat.
tit. 28, 31; id. tit. 43, 5, or examine the
general relationship between court clerks
and the judicial branch, see Speight v.
Presley, 203 P.3d 173 (Okla.2008). None
of the authorities address the role court
clerks play in regards to marriage recogni-
tion.
FN12. Of course, if the Barton couple had
been entitled to a finding of standing on
the basis of law of the case, they would not
have been required to demonstrate their
standing before the district court, or here.
That is to say, had there been no new evid-
ence to sufficiently undermine the effect of
the law of the case of Bishop I, then Bish-
op I would have been enough, without
more, to establish standing. See Christian-
son, 486 U.S. at 816 n. 5 (There is no
reason to apply law-of-the-case principles
less rigorously to [a jurisdictional issue].).
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--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
But since there was new evidence that did
effectively undermine Bishop I's non-
recognition standing holding, the Barton
couple had to meet their summary-judg-
ment burden in rebutting that evidence.
See, e.g., Clark, 590 F.3d at 1140
(describing new evidence as a reason to
depart from the [law of the case] doctrine
(emphasis added)); United States v.
Parada, 577 F.3d 1275, 1280 (10th
Cir.2009) (same).
FN13. That the plaintiffs' action was in
part for a declaratory judgment does not
affect the standing analysis. Like any law-
suit, a declaratory-judgment action must
meet Article III's standing criteria, includ-
ing redressability. See Consumer Data In-
dus. Ass'n, 678 F.3d at 906; City of Hugo
v. Nichols (Two Cases), 656 F.3d 1251,
126364 (10th Cir.2011). As part of the re-
dressabilityrequirement, adeclaratory-judg-
ment action must be brought against a de-
fendant who can, if ordered to do so, rem-
edy the alleged injury. See Coll v. First
Am. Title Ins. Co., 642 F.3d 876, 892 (10th
Cir.2011); Bronson, 500 F.3d at 1111.
Since Smith cannot provide relief to the
Barton couple on their non-recognition
claim, they had no standing to sue her, re-
gardless of whether the claim was brought
in a declaratory-judgment form or not.
Similarly, the doctrine of actionable con-
duct capable of repetition yet evading re-
view is not applicable here. As an initial
matter, the doctrine creates an exception
to mootness, not to lack of standing. See
United States v. Juvenile Male, U.S.
, , 131 S.Ct. 2860, 2865, 180
L.Ed.2d 811 (2011) (per curiam); Buch-
heit v. Green, 705 F.3d 1157, 1160 (10th
Cir.2012); see also Lucero v. Bureau of
Collection Recovery, Inc., 639 F.3d
1239, 124243 (10th Cir.2011)
(acknowledging that the capable-
of-repetition-yet-evading-review class of
cases constitutes an exception to moot-
ness and noting that such exceptions do
not extend to the standing inquiry). The
Barton couple's claim is plainly not
moot, as they continue to desire recogni-
tion for their marriage and continue to be
denied such recognition. See United
States v. Alaska, 503 U.S. 569, 575 n. 4,
112 S.Ct. 1606, 118 L.Ed.2d 222 (1992)
(We agree that the controversy is not
moot, since it involves a continuing con-
troversy....). At any rate, to the extent
the capable-
of-repetition-yet-evading-review test
does go to redressability, the com-
plained-of conduct, i.e., the denial of
marriage recognition, does not evade re-
view. Rather, as discussed above, a non-
recognition couple could easily seek re-
cognition from the State in some fash-
ion, such as by filing a joint tax return,
and when recognition was denied, the
couple could then sue the official re-
sponsible for that non-recognition de-
cision.
FN14. In the plaintiffs' eyes, standing on
non-recognition can be found by virtue of
the fact that Smith, and the court system
that employs her, would not refuse to hon-
or a court order enjoining enforcement of
Part B. It is of no moment that Smith
would presumably obey a judicial invalida-
tion of Part B if she were directed to en-
force the provision. The problem is there is
no reason to believe that she enforces the
provision at all, and thus no conceivable
injunction for her to obey.
FN15. In their response to Smith's motion
for summary judgment, the plaintiffs did
submit in passing that Smith's affidavit
might create an injury in its own right,
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
namely, the erection of a barrier making it
more difficult for members of a group to
obtain a benefit. However, the plaintiffs
did not frame this argument in terms of ac-
cess to the state court system, and it is
more naturally read as a point about access
to the federal court system. After all, a
finding of no standing on the basis of
Smith's affidavit removes the Barton
couple from federal court, not from state
court.
FN16. The parties in Kitchen did not ad-
dress severability in their appellate brief-
ing, thereby rendering the issue waived in
that case through briefing omission and re-
lieving this court of any responsibility to
discuss the matter in its opinion. See
United States v. Bader, 678 F.3d 858, 894
(10th Cir.2012) (observing that a litigant's
briefing omissions prompt the conclusion
that he or she has waived [the] argu-
ment).
FN17. A litigant may obtain relief under
the plain-error doctrine upon a showing of
(1) an error, (2) that is plain, which means
clear or obvious under current law, and (3)
that affects substantial rights. If [she] satis-
fies these criteria, this Court may exercise
discretion to correct the error if it seriously
affects the fairness, integrity, or public
reputation of judicial proceedings. United
States v. Goode, 483 F.3d 676, 681 (10th
Cir.2007) (quotation omitted).
FN18. The plaintiffs use Brockett v.
Spokane Arcades, Inc., 472 U.S. 491, 105
S.Ct. 2794, 86 L.Ed.2d 394 (1985), and
Panhandle Eastern Pipeline Co. v. State of
Oklahoma ex rel. Commissioners of Land
Office, 83 F.3d 1219 (10th Cir.1996), to
bolster their view that a court has an oblig-
ation to consider severability even in the
face of forfeiture. Cf. Acosta v. City of
Costa Mesa, 694 F.3d 960, 974 n. 7 (9th
Cir.2012) (relying upon Brockett, inter
alia, to support the proposition that
severability is an inherent part of the pro-
cess of constitutional adjudication that is
not subject to waiver by omission from ap-
pellate briefs), withdrawn, 708 F.3d 1122
(9th Cir.2013). Neither Brockett nor Pan-
handle nor any of the other Supreme Court
cases cited by Acosta say anything about
forfeiture or waiver, or anything about
whether severability had been raised or ar-
gued to the trial or appellate courts. Given
this silence, the explicit invocation of
waiver by Awad in a comparable case is
controlling here on the question of whether
severability must be considered sua sponte.
FN19. Because the plaintiffs' severability
theory is forfeited, there is no need to con-
sider Smith's argument that a severability
analysis regarding Part B is foreclosed by
the plaintiffs' lack of standing to challenge
that provision. See Sinochem Int'l Co., 549
U.S. at 431 (authorizing federal courts to
choose at their discretion among alternat-
ive threshold grounds for disposing of a
claim without reaching its merits); accord
Niemi, 728 F.3d at 1260.
FN1. Following the majority opinion, I
will refer to Oklahoma's same-sex mar-
riage provision embodied in its constitu-
tion, Okla. Const. art. II, 35, as SQ
711. Also in keeping with the majority
opinion, I will refer to SQ 711's ban on
same-sex marriage as Part A and will
refer to SQ 711's non-recognition clause as
Part B.
FN2. I also fully embrace the remainder of
the majority's opinion (both its outcome
and reasoning) regarding the non-
recognition claim: that is, that the Barton
couple lacked standing to pursue that claim
and that Part B cannot be invalidated pur-
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--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
suant to severability law because the
plaintiffs forfeited their severability argu-
ment.
FN3. See Kitchen v. Herbert, F.3d
, 2014 WL 2868044, at *32 (10th
Cir.2014); Love v. Beshear, F.Supp.2d
, 2014 WL 2957671, at *7 n. 14
(W.D.Ky.2014); Wolf v. Walker, 986
F.Supp.2d 982, 2014 WL 2558444, at *33
(W.D.Wis.2014); Whitewood v. Wolf,
F.Supp.2d , 2014 WL 2058105, at
*15 (M.D.Pa.2014); Geiger v. Kitzhaber,
F.Supp.2d , 2014 WL 2054264, at
*14 (D.Or.2014); Latta v. Otter,
F.Supp.2d , 2014 WL 1909999, at *28
(D.Idaho 2014); Baskin v. Bogan,
F.Supp.2d , 2014 WL 1568884, at *3
(S.D.Ind.2014); DeBoer v. Snyder, 973
F.Supp.2d 757, 775 (E.D.Mich.2014);
Tanco v. Haslam, F.Supp.2d ,
2014 WL 997525, at *6 (M.D.Tenn.2014);
Bostic v. Rainey, 970 F.Supp.2d 456, 482
(E.D.Va.2014); Bourke v. Beshear,
F.Supp.2d , 2014 WL 556729, at *67
(W.D.Ky.2014); Kitchen v. Herbert, 961
F.Supp.2d 1181, 120910 (D.Utah 2013),
aff'd, 2014 WL 2868044; Griego v. Oliver,
316 P.3d 865, 888 (N.M.2013).
FN4. A pair of Supreme Court cases
handed down a day apart in 1982 are occa-
sionally also included in lists of the Court's
animus decisions: Plyler v. Doe, 457 U.S.
202, 102 S.Ct. 2382, 72 L.Ed.2d 786
(1982), and Zobel v. Williams, 457 U.S.
55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982).
See, e.g., Milner v. Apfel, 148 F.3d 812,
816 (7th Cir.1998) (including Plyler and
Zobel in a list of the Court's animus cases);
Susannah W. Pollvogt, Unconstitutional
Animus, 81 Fordham L.Rev. 887, 899900
(2012) (same). A careful reading of these
two decisions, however, causes me to dis-
agree with this inclusion. See Plyler, 457
U.S. at 22730; Zobel, 457 U.S. at 6064.
Although Plyler and Zobel arguably under-
take a slightly more penetrating analysis,
rooted in the States' arguments, than com-
monly found in rational-basis cases, the
Court's gaze in the two cases still extends
no further than the colorable state in-
terests that might support the challenged
classification. Plyler, 457 U.S. at 227
(emphases added); see Zobel, 457 U.S. at
61 & 61 n. 7 (noting the State's proffered
three purposes justifying the distinctions
made by the challenged classification and
noting that the Court need not speculate
as to the objectives of the legislature be-
cause they were codified in the legislation
at issue). As such, Plyler and Zobel are, at
the very least, more akin to the mine-run
rational-basis cases than they are to the an-
imus cases, which (as noted infra) have as
their hallmark looking beyond colorable
interests promoted by the challenged law
into the actual motivation behind the gov-
ernmental action at issue. This sui generis
form of equal-protection review is absent
in Plyler and Zobel; accordingly, I will not
rely upon those cases in my discussion of
the animus doctrine. See Massachusetts v.
U.S. Dep't of Health & Human Servs., 682
F.3d 1, 10 (1st Cir.2012) (limiting the list
of the Supreme Court's animus cases to
Romer, Cleburne, and Moreno); Tiffany C.
Graham, Rethinking Section Five: Defer-
ence, Direct Regulation, and Restoring
Congressional Authority to Enforce the
Fourteenth Amendment, 65 Rutgers L.Rev.
667, 716 (2013) (same).
FN5. Some of the plaintiffs' amici interpret
the animus cases quite broadly, to the ex-
tent that they understand them for all in-
tents and purposes not to involve hostility
at all. See, e.g., Equality Utah Found. &
Utah Pride Ctr. Br. at 10 (While the Su-
preme Court has sometimes suggested that
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
laws drawn for the purpose of disad-
vantaging a group are based on animus,
that term simply denotes the absence of an
independent and legitimate purpose for
the law, not a subjective disdain for or dis-
like of a particular class. (quoting Romer,
517 U.S. at 63233)); Joan Heifetz
Hollinger et al. Br. at 4 n.8 ( Animus' as
used in Romer is a term of art and does not
mean subjective dislike or hostility, but
simply the absence of any rational reason
for excluding a particular group from pro-
tections.). That is, in my view, simply not
a plausible reading of the animus cases,
which have targeted laws born of animos-
ity toward the class of persons affected,
Romer, 517 U.S. at 634 (emphasis added),
and laws motivated by a bare congres-
sional desire to harm a politically unpopu-
lar group, Moreno, 413 U.S. at 534
(emphasis added). See Pollvogt, supra, at
888 (In short, animus, including hostility
toward a particular social group, is never a
valid basis for legislation or other state ac-
tion. (emphasis added)).
FN6. It bears mention that the Supreme
Court has periodically consulted legislative
history materials in its search for unconsti-
tutional animus. See United States v. Wind-
sor, U.S. , 133 S.Ct. 2675, 2693,
186 L.Ed.2d 808 (2013) (considering a
House Report in concluding that the
essence of the Defense of Marriage Act
(DOMA) was interference with the
equal dignity of same-sex marriages);
Moreno, 413 U.S. at 534 (detailing legis-
lative history to demonstrate that the chal-
lenged enactment was intended to prevent
socalled hippies' and hippie communes'
from participating in the food stamp pro-
gram). Notably, though, the Supreme
Court has never taken into account such
materials when weighing the constitution-
ality of a popularly-enacted lawone
based upon votes directly cast by cit-
izenslike the one before us. And it has
had the opportunity to do so. Romer in-
volved a state constitutional amendment
that was passed by referendum, just as our
case does. 517 U.S. at 623. Yet the Court
did not rely on campaign literature in strik-
ing down the measure, training its gaze in-
stead on the structural attributes of the
amendment that were suggestive of anim-
us, such as its breadth and the novelty of
its effects on the injured class. See id. at
62635. That is not surprising. The scope
of a popular poll makes it difficult, if not
impossible, for a court to apprehend the
intent of individual voters from record
evidence and, therefore, makes it im-
provident to ascribe hostility to that intent
and to nullify the will of the citizenry on
that basis. See Latta, 2014 WL 1909999, at
*21 (Because over 280,000 Idahoans
voted for Amendment 2, it is not feasible
for the Court to infer a particular purpose
or intent for the provision.); Fred O.
Smith, Jr., Due Process, Republicanism,
and Direct Democracy, 89 N.Y.U. L.Rev.
582, 610 (2014) (There is a resounding
absence of [a meaningful legislative] re-
cord when voters directly enact meas-
ures.).
FN7. Notably, the Supreme Court in Wind-
sor did not expressly identify the tier of
scrutiny that it applied in reviewing the
challenged federal legislation. The extent
to which Windsor is an animus caseas
opposed to, most saliently here, a funda-
mental-rights caseis not pelluc id. Com-
pare Windsor, 133 S.Ct. at 2692 (Private,
consensual sexual intimacy between two
adult persons of the same sex may not be
punished by the State, and it can form but
one element in a personal bond that is
more enduring. By its recognition of the
validity of same-sex marriages performed
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
in other jurisdictions and then by authoriz-
ing same-sex unions and same-sex mar-
riages, New York sought to give further
protection and dignity to that bond.
(citation omitted) (quoting Lawrence v.
Texas, 539 U.S. 558, 567, 123 S.Ct. 2472,
156 L.Ed.2d 508 (2003))), and id. at 2694
(The differentiation demeans the couple,
whose moral and sexual choices the Con-
stitution protects, and whose relationship
the State has sought to dignify. (citation
omitted)), with id. at 2693 (DOMA seeks
to injure the very class New York seeks to
protect.), and id. at 2695 ([T]he principal
purpose and the necessary effect of this
law are to demean those persons who are
in a lawful same-sex marriage.). No mat-
ter how one describes the measure of an-
imus doctrine at work in Windsor, it cannot
be seriously contended that Windsor is en-
tirely lacking in it. In addition to the
quotes recited above, Windsor spoke in
manifestly animus-inflected terms when it
reaffirmed that [t]he Constitution's guar-
antee of equality must at the very least
mean that a bare congressional desire to
harm a politically unpopular group cannot
justify disparate treatment of that group,
id. at 2693 (quoting Moreno, 413 U.S. at
53435), and when the Court reiterated,
even more tellingly, that [i]n determining
whether a law is motivated by an improper
animus or purpose, [d]iscriminations of an
unusual character especially require care-
ful consideration, id. (second alteration in
original) (quoting Romer, 517 U.S. at 633)
(internal quotation marks omitted). See
also William D. Araiza, After the Tiers:
Windsor, Congressional Power to Enforce
Equal Protection, and the Challenge of
Pointillist Constitutionalism, 94 B.U.
L.Rev. 367, 368 (2014) (characterizing
Windsor as an animus case); Daniel O.
Conkle, Evolving Values, Animus, and
SameSex Marriage, 89 Ind. L.J. 27, 39
(2014) (The [Windsor] Court's primary
argument ... was that Congress had acted
with illicit animus, thus violating equal
protection.); Darren Lenard Hutchinson,
Not Without Political Power: Gays and
Lesbians, Equal Protection and the Sus-
pect Class Doctrine, 65 Ala. L.Rev. 975,
977 (2014) ( [I]n Windsor, rather than
considering whether gays and lesbians
constitute a suspect class, the Court held
simply that DOMA violates the Equal Pro-
tection Clause because it is a product of
animus directed towards same-sex
couples.); cf. SmithKline Beecham Corp.
v. Abbott Labs., F.3d , 2014 WL
2862588, at *4 (9th Cir.2014)
(O'Scannlain, J., dissenting from denial of
rehearing en banc) (In declaring [DOMA
3] to be motivated by no legitimate
purpose, Windsor only applies rational
basis review in the same way that Romer
reviewed Colorado's Amendment 2 for ra-
tional basis.). In the discussion that fol-
lows, I use Windsor exclusively with refer-
ence to the animus aspect of its reasoning.
FN8. The district court found, as a matter
of law, that moral disapproval of same-
sex marriage existed in the public domain
as at least one justification for voting in fa-
vor of SQ 711. Bishop, 962 F.Supp.2d at
1289. In support of that finding, the district
court cited statements made by several
state legislators and by other supporters of
the measure. Id. at 128889. The district
court's analysis in this regard is most nat-
urally read as relating to its conventional
rational-basis reviewwherein it con-
sidered moral disapproval as one conceiv-
able basis for the lawnot as germane to a
finding of animus. See id. at 1285 n. 32
(Because Windsor involved an unusual
federal intrusion into state domestic law
(not at issue here) and Romer involved an
unusual, total removal of any equal protec-
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
tion of the law (not at issue here), the
Court proceeds to conduct a more tradi-
tional equal protection analysis by determ-
ining the proper level of scrutiny and then
considering all conceivable justifications
for Part A.); id . at 1288 (The Court
turns now to the conceivable justifications
for Part A's preclusion of same-sex couples
from receiving an Oklahoma marriage li-
cense[, including moral disapproval].). As
noted supra, the Supreme Court has under-
standably (indeed, wisely) never taken into
account even more formal expressions of
legislative will (i.e., recorded legislative
history) when weighing the constitutional-
ity of a popularly-enacted law, like the one
before us, despite having had the opportun-
ity to do so. It seems questionable, there-
fore, whether it would be appropriate for a
court undertaking animus review in the
context of such a law to ever consider the
kind of materials cited by the district court
here. At any rate, even assuming that such
materials are cognizable in a case like this,
the few and scattered quotes referenced by
the district court, as well as by the
plaintiffs and some of their amici, offer far
too tenuous a basis to impugn the goodwill
of the roughly one million Oklahomans
who voted for SQ 711. See id. at 1259 n. 1
(finding that SQ 711 was approved by a
vote of 1,075,216 to 347,303).
FN9. In an otherwise incisive opinion, the
United States District Court for the West-
ern District of Wisconsin recently analo-
gized a same-sex marriage ban to the felled
laws in Windsor and Romer, reasoning that
the ban was likewise unusual in that it
represented a rare, if not unprecedented,
act of using the [state] [c]onstitution to re-
strict constitutional rights rather than ex-
pand them. Walker, 2014 WL 2558444, at
*33 (internal quotation marks omitted).
There are two problems with this argu-
ment. First, it is misleading to suggest that
a ban restricts a substantive constitution-
al right that had not been recognized be-
forehand. Constitutional or otherwise, the
plaintiffs' rights with respect to mar-
riageor lack thereofwere the same be-
fore the ban as after. Second, even if it
were correct to characterize the challenged
laws as restrictions, they would not be re-
strictions of such a type as to qualify as
unusual under Windsor and Romer.
DOMA was unusual because it represented
an incursion by the federal government in-
to a province historically dominated by the
States. See Windsor, 133 S.Ct. at 2691
(describing family law as an area that has
long been regarded as a virtually exclusive
province of the States (internal quotation
marks omitted)); id. (The definition of
marriage is the foundation of the State's
broader authority to regulate the subject of
domestic relations ....); id. ([T]he states,
at the time of the adoption of the Constitu-
tion, possessed full power over the subject
of marriage and divorce .... (alteration in
original) (internal quotation marks omit-
ted)). Colorado's Amendment 2, at issue in
Romer, was unusual because it cut off ho-
mosexuals' rights in an indiscriminate fash-
ion across numerous legal fronts. See 517
U.S. at 627 (Sweeping and comprehens-
ive is the change in legal status effected by
this law.); id. at 632 (noting that Amend-
ment 2 had the peculiar property of im-
posing a broad and undifferentiated disab-
ility on a single named group, an excep-
tional and ... invalid form of legislation);
id. at 633 (Amendment 2 ... identifies per-
sons by a single trait and then denies them
protection across the board.). SQ 711 is
unusual in neither of these ways. It is but
one piece of Oklahoma's marriage regime,
a regime our federalist system entrusts the
States with maintaining, and it simply con-
stitutionalizes a definition that Oklahoma
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(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
has, since its creation, abided by.
FN1. See, e.g., Wolf v. Walker, No.
14cv64, 2014 WL 2558444, at *1, *43
(W.D.Wis. June 6, 2014) (challenging mar-
riage amendment and statutes; injunction
prohibits enforcement of both); Latta v.
Otter, No. 1:13cv00482, 2014 WL
1909999, at *3, *29 (D.Idaho May 13,
2014) (same).
FN2. Though this court disclaims an opin-
ion, Judge Holmes' concurrence strongly
suggests that the amendment would sur-
vive rational basis review. According to
the concurrence, Oklahoma's amendment
(1) is limited to a single institution: mar-
riage, (2) is supported by history, legal
precedent, and statutory enactments dating
back to 1973, (3) does not divest anyone of
a pre-existing right, (4) should be viewed
as the product of the goodwill of one mil-
lion Oklahomans, and (5) is consistent
with the State's police power, unlike the
federal intrusion into marriage at issue in
United States v. Windsor, U.S. ,
133 S.Ct. 2675, 186 L.Ed.2d 808 (2013).
C.A.10 (Okla.),2014.
Bishop v. Smith
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
END OF DOCUMENT
Page 55
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
(Cite as: 2014 WL 3537847 (C.A.10 (Okla.)))
PUBLISHED

UNI TED STATES COURT OF APPEALS
FOR THE FOURTH CI RCUI T

No. 14-1167

TI MOTHY B. BOSTI C; TONY C. LONDON; CAROL SCHALL; MARY
TOWNLEY,

Plaintiffs Appellees,

J OANNE HARRI S; J ESSI CA DUFF; CHRI STY BERGHOFF; VI CTORI A
KI DD, on behal f of t hemsel ves and al l ot her s si mi l ar l y
si t uat ed,

I nt er venor s,

v.

GEORGE E. SCHAEFER, I I I , i n hi s of f i ci al capaci t y as t he
Cl er k of Cour t f or Nor f ol k Ci r cui t Cour t ,

Def endant Appel l ant ,

and

J ANET M. RAI NEY, i n her of f i ci al capaci t y as St at e Regi st r ar
of Vi t al Recor ds; ROBERT F. MCDONNELL, i n hi s of f i ci al
capaci t y as Gover nor of Vi r gi ni a; KENNETH T. CUCCI NELLI , I I ,
i n hi s of f i ci al capaci t y as At t or ney Gener al of Vi r gi ni a,

Def endant s,

MI CHLE MCQUI GG,

I nt er venor / Def endant .

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

DAVI D A. ROBI NSON; ALAN J . HAWKI NS; J ASON S. CARROLL; NORTH
CAROLI NA VALUES COALI TI ON; LI BERTY, LI FE, AND LAW
FOUNDATI ON; SOCI AL SCI ENCE PROFESSORS; FAMI LY RESEARCH
COUNCI L; VI RGI NI A CATHOLI C CONFERENCE, LLC; CENTER FOR
CONSTI TUTI ONAL J URI SPRUDENCE; STATE OF WEST VI RGI NI A;
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 1 of 98
2

I NSTI TUTE FOR MARRI AGE AND PUBLI C POLI CY; HELEN M. ALVARE;
STATE OF I NDI ANA; STATE OF ALABAMA; STATE OF ALASKA; STATE
OF ARI ZONA; STATE OF COLORADO; STATE OF I DAHO; STATE OF
LOUI SI ANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLI NA; STATE OF SOUTH DAKOTA;
STATE OF UTAH; STATE OF WYOMI NG; WALLBUI LDERS, LLC; LI BERTY
COUNSEL; AMERI CAN COLLEGE OF PEDI ATRI CI ANS; SCHOLARS OF
HI STORY AND RELATED DI SCI PLI NES; AMERI CAN LEADERSHI P FUND;
ROBERT P. GEORGE; SHERI F GI RGI S; RYAN T. ANDERSON; PAUL
MCHUGH; UNI TED STATES CONFERENCE OF CATHOLI C BI SHOPS;
NATI ONAL ASSOCI ATI ON OF EVANGELI CALS; CHURCH OF J ESUS CHRI ST
OF LATTERDAY SAINTS; THE ETHI CS & RELI GI OUS LI BERTY
COMMI SSI ON OF THE SOUTHERN BAPTI ST CONVENTI ON; LUTHERAN
CHURCHMISSOURI SYNOD; THE BECKET FUND FOR RELIGIOUS
LI BERTY; EAGLE FORUM EDUCATI ON AND LEGAL DEFENSE FUND; DAVI D
BOYLE; ROBERT OSCAR LOPEZ; CONCERNED WOMEN FOR AMERI CA; THE
FAMI LY FOUNDATI ON OF VI RGI NI A,

Ami ci Suppor t i ng Appel l ant ,

CONSTI TUTI ONAL LAW SCHOLARS; ASHUTOSH BHAGWAT; LEE
BOLLI NGER; ERWI N CHEMERI NSKY; WALTER DELLI NGER; MI CHAEL C.
DORF; LEE EPSTEI N; DANI EL FARBER; BARRY FRI EDMAN; MI CHAEL
J AY GERHARDT, Pr of essor ; DEBORAH HELLMAN; J OHN CALVI N
J EFFRI ES, J R. ; LAWRENCE LESSI G; WI LLI AM MARSHALL; FRANK
MI CHELMAN; J ANE S. SCHACTER; CHRI STOPHER H. SCHROEDER;
SUZANNA SHERRY; GEOFFREY R. STONE; DAVI D STRAUSS; LAURENCE
H. TRI BE, Pr of essor ; WI LLI AM VAN ALSTYNE; OUTSERVESLDN; THE
AMERI CAN MI LI TARY PARTNER ASSOCI ATI ON; THE AMERI CAN
SOCI OLOGI CAL ASSOCI ATI ON; VI RGI NI A CONSTI TUTI ONAL LAW
PROFESSORS; AMERI CAN PSYCHOLOGI CAL ASSOCI ATI ON; THE AMERI CAN
ACADEMY OF PEDI ATRI CS; AMERI CAN PSYCHI ATRI C ASSOCI ATI ON;
NATI ONAL ASSOCI ATI ON OF SOCI AL WORKERS; VI RGI NI A
PSYCHOLOGI CAL ASSOCI ATI ON; EQUALI TY NC; SOUTH CAROLI NA
QUALITY COALITION; CHANTELLE FISHERBORNE; MARCI E
FISHERBORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARI GNAN;
MEGAN PARKER; TERRI BECK; LESLI E ZANAGLI O; LEE KNI GHT
CAFFERY; DANA DRAA; SHAWN LONG; CRAI G J OHNSON; ESMERALDA
MEJIA; CHRISTINA GINTERMEJIA; CATO INSTITUTE;
CONSTI TUTI ONAL ACCOUNTABI LI TY CENTER; HI STORI ANS OF
MARRI AGE; PETER W. BARDAGLI O; NORMA BASCH; STEPHANI E COONTZ;
NANCY F. COTT; TOBY L. DI TZ; ARI ELA R. DUBLER; LAURA F.
EDWARDS; SARAH BARRI NGER GORDON; MI CHAEL GROSSBERG; HENDRI K
HARTOG; ELLEN HERMAN; MARTHA HODES; LI NDA K. KERBER; ALI CE
KESSLERHARRIS; ELAINE TYLER MAY; SERENA MAYERI; STEVEN
MI NTZ; ELI ZABETH PLECK; CAROLE SHAMMAS; MARY L. SHANLEY; AMY
DRU STANLEY; BARBARA WELKE; PARENTS, FAMI LI ES AND FRI ENDS OF
3

LESBI ANS AND GAYS, I NC. ; KERRY ABRAMS, Al ber t Cl ar k Tat e,
J r . Pr of essor of Law, Uni ver si t y of Vi r gi ni a School of Law;
VI VI AN HAMI LTON, Pr of essor of Law, Wi l l i am and Mar y;
MEREDI TH HARBACH, Pr of essor of Law, Uni ver si t y of Ri chmond;
J OAN HEI FETZ HOLLI NGER, J ohn and El i zabet h Boal t Lect ur er i n
Resi dence, Uni ver si t y of Cal i f or ni a, Ber kel ey School of Law;
COURTNEY G. J OSLI N, Pr of essor of Law, Uni ver si t y of
Cal i f or ni a, Davi s School of Law; NAACP LEGAL DEFENSE AND
EDUCATI ON FUND, I NC. ; NATI ONAL ASSOCI ATI ON FOR THE
ADVANCEMENT OF COLORED PEOPLE; HOWARD UNI VERSI TY SCHOOL OF
LAW CI VI L RI GHTS CLI NI C; FAMI LY EQUALI TY COUNCI L; COLAGE;
GLMA: HEALTH PROFESSI ONALS ADVANCI NG LGBT EQUALI TY; WI LLI AM
N. ESKRI DGE, J R. ; REBECCA L. BROWN; DANI EL A. FARBER;
MI CHAEL GERHARDT; J ACK KNI GHT; ANDREW KOPPELMAN; MELI SSA
LAMB SAUNDERS; NEI L S. SI EGEL; J ANA B. SI NGER; HI STORI ANS OF
ANTIGAY DISCRIMINATION; ANTIDEFAMATION LEAGUE; AMERICANS
UNI TED FOR SEPARATI ON OF CHURCH AND STATE; BEND THE ARC: A
J EWI SH PARTNERSHI P FOR J USTI CE; HADASSAH, THE WOMEN' S
ZI ONI ST ORGANI ZATI ON OF AMERI CA; HI NDU AMERI CAN FOUNDATI ON;
THE I NTERFAI TH ALLI ANCE FOUNDATI ON; J APANESE AMERI CAN
CI TI ZENS LEAGUE; J EWI SH SOCI AL POLI CY ACTI ON NETWORK;
KESHET; METROPOLI TAN COMMUNI TY CHURCHES; MORE LI GHT
PRESBYTERI ANS; THE NATI ONAL COUNCI L OF J EWI SH WOMEN;
NEHI RI M; PEOPLE FOR THE AMERI CAN WAY FOUNDATI ON;
PRESBYTERI AN WELCOME; RECONCI LI NGWORKS: LUTHERANS FOR FULL
PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; SI KH AMERI CAN
LEGAL DEFENSE AND EDUCATI ON FUND; SOCI ETY FOR HUMANI STI C
J UDAI SM; T' RUAH: THE RABBI NI C CALL FOR HUMAN RI GHTS; WOMEN' S
LEAGUE FOR CONSERVATI VE J UDAI SM; COLUMBI A LAW SCHOOL
SEXUALI TY AND GENDER LAW CLI NI C; BI SHOPS OF THE EPI SCOPAL
CHURCH I N VI RGI NI A; CENTRAL ATLANTI C CONFERENCE OF THE
UNI TED CHURCH OF CHRI ST; CENTRAL CONFERENCE OF AMERI CAN
RABBI S; MORMONS FOR EQUALI TY; RECONSTRUCTI ONI ST RABBI NI CAL
ASSOCI ATI ON; RECONSTRUCTI ONI ST RABBI NI CAL COLLEGE AND J EWI SH
RECONSTRUCTI ONI ST COMMUNI TI ES; UNI ON FOR REFORM J UDAI SM; THE
UNI TARI AN UNI VERSALI ST ASSOCI ATI ON; AFFI RMATI ON; COVENANT
NETWORK OF PRESBYTERI ANS; METHODI ST FEDERATI ON FOR SOCI AL
ACTI ON; MORE LI GHT PRESBYTERI ANS; PRESBYTERI AN WELCOME;
RECONCI LI NG MI NI STRI ES NETWORK; RECONCI LI NGWORKS: LUTHERANS
FOR FULL PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; WOMEN OF
REFORM J UDAI SM; 28 EMPLOYERS AND ORGANI ZATI ONS REPRESENTI NG
EMPLOYERS; COMMONWEALTH OF MASSACHUSETTS; STATE OF
CALI FORNI A; STATE OF CONNECTI CUT; DI STRI CT OF COLUMBI A;
STATE OF I LLI NOI S; STATE OF I OWA; STATE OF MAI NE; STATE OF
MARYLAND; STATE OF NEWHAMPSHI RE; STATE OF NEWMEXI CO; STATE
OF NEW YORK; STATE OF OREGON; STATE OF VERMONT; STATE OF
WASHI NGTON; GARY J . GATES; NATI ONAL AND WESTERN STATES
4

WOMEN' S RI GHTS ORGANI ZATI ONS; VI RGI NI A CHAPTER OF THE
AMERI CAN ACADEMY OF MATRI MONI AL LAWYERS; THE NATI ONAL
WOMEN' S LAW CENTER; EQUAL RI GHTS ADVOCATES; LEGAL MOMENTUM;
NATI ONAL ASSOCI ATI ON OF WOMEN LAWYERS; NATI ONAL PARTNERSHI P
FOR WOMEN & FAMI LI ES; SOUTHWEST WOMEN' S LAW CENTER; WOMEN' S
LAW PROJ ECT; PROFESSORS OF LAW ASSOCI ATED WI TH THE WI LLI AMS
I NSTI TUTE; BAY AREA LAWYERS FOR I NDI VI DUAL FREEDOM;
LEADERSHI P CONFERENCE ON CI VI L AND HUMAN RI GHTS; PUBLI C
I NTEREST ORGANI ZATI ONS; BAR ASSOCI ATI ONS; FAMI LY LAW AND
CONFLI CT OF LAWS PROFESSORS; GAY AND LESBI AN ADVOCATES AND
DEFENDERS; PEOPLE OF FAI TH FOR EQUALI TY I N VI RGI NI A;
CELEBRATI ON CENTER FOR SPI RI TUAL LI VI NG; CLARENDON
PRESBYTERI AN CHURCH; COMMONWEALTH BAPTI ST CHURCH;
CONGREGATI ON OR AMI ; HOPE UNI TED CHURCH OF CHRI ST; LI TTLE
RI VER UCC; METROPOLI TAN COMMUNI TY CHURCH OF NORTHERN
VI RGI NI A; MT. VERNON UNI TARI AN CHURCH; ST. J AMES UCC, ; ST.
J OHN' S UCC; NEW LI FE METROPOLI TAN COMMUNI TY CHURCH;
UNI TARI AN UNI VERSALI ST FELLOWSHI P OF THE PENI NSULA;
UNI TARI AN UNI VERSALI ST CONGREGATI ON OF STERLI NG; UNI TED
CHURCH OF CHRI ST OF FREDERI CKSBURG; UNI TARI AN UNI VERSALI ST
CHURCH OF LOUDOUN; ANDREW MERTZ; REV. MARI E HULM ADAM; REV.
MARTY ANDERSON; REV ROBI N ANDERSON; REV. VERNE ARENS; RABBI
LI A BASS; REV. J OSEPH G. BEATTI E; REV. SUE BROWNI NG; REV.
J I M BUNDY; REV. MARK BYRD; REV. STEVEN C. CLUNN; REV. DR.
J OHN COPERHAVER; RABBI GARY CREDI TOR; REV. DAVI D ENSI GN;
REV. HENRY FAI RMAN; RABBI J ESSE GALLOP; REV. TOM
GERSTENLAUER; REV. ROBI N H. GORSLI NE; REV. TRI SH HALL; REV.
WARREN HAMMONDS; REV. J ON HEASLET; REV. DOUGLAS HODGES; REV.
PHYLLI S HUBBELL; REV. STEPHEN G. HYDE; REV. J ANET J AMES;
REV. J OHN MANWELL; REV. J AMES W. MCNEAL; REV. MARC BOSWELL;
REV. ANDREW CLI VE MI LLARD; REV. DR. MELANI E MI LLER; REV.
AMBER NEUROTH; REV. J AMES PAPI LE; REV. LI NDA OLSON PEEBLES;
REV. DON PRANGE; RABBI MI CHAEL RAGOZI N; RABBI BEN ROMER;
REV. JENNIFER RYU; REV. ANYA SAMMLERMICHAEL; REV. AMY
SCHWARTZMAN; REV. DANNY SPEARS; REV. MARK SURI ANO; REV. ROB
VAUGHN; REV. DANI EL VELEZRIVERA; REV. KATE R. WALKER; REV.
TERRYE WILLIAMS; REV. DR. KARENMARIE YUST,

Ami ci Suppor t i ng Appel l ees.

5

No. 14-1169

TOWNLEY,


si t uat ed,

I nt er venor s,

v.

J ANET M. RAI NEY, i n her of f i ci al capaci t y as St at e Regi st r ar
of Vi t al Recor ds,

Def endant Appel l ant ,

and

Cl er k of Cour t f or Nor f ol k Ci r cui t Cour t ; ROBERT F.
MCDONNELL, i n hi s of f i ci al capaci t y as Gover nor of Vi r gi ni a;
KENNETH T. CUCCI NELLI , I I , i n hi s of f i ci al capaci t y as
At t or ney Gener al of Vi r gi ni a,

Def endant s,

MI CHLE MCQUI GG,

I nt er venor / Def endant .

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

6



FISHERBORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARIGNAN;
7

8



9

No. 14-1173

TOWNLEY,


si t uat ed,

I nt er venor s,

v.

MI CHLE MCQUI GG,

I nt er venor / Def endant Appel l ant ,

and

Cl er k of Cour t f or Nor f ol k Ci r cui t Cour t ; J ANET M. RAI NEY,
i n her of f i ci al capaci t y as St at e Regi st r ar of Vi t al
Recor ds; ROBERT F. MCDONNELL, i n hi s of f i ci al capaci t y as
Gover nor of Vi r gi ni a; KENNETH T. CUCCI NELLI , I I , i n hi s
of f i ci al capaci t y as At t or ney Gener al of Vi r gi ni a,

Def endant s.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

10



FISHERBORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARIGNAN;
11

12



Appeal s f r om t he Uni t ed St at es Di st r i ct Cour t f or t he East er n
Di st r i ct of Vi r gi ni a, at Nor f ol k. Ar enda L. Wr i ght Al l en,
Di st r i ct J udge. ( 2: 13- cv- 00395- AWA- LRL)

Ar gued: May 13, 2014 Deci ded: J ul y 28, 2014

Bef or e NI EMEYER, GREGORY, and FLOYD, Ci r cui t J udges.

13

Af f i r med by publ i shed opi ni on. J udge Fl oyd wr ot e t he maj or i t y
opi ni on, i n whi ch J udge Gr egor y j oi ned. J udge Ni emeyer wr ot e a
separ at e di ssent i ng opi ni on.

ARGUED: Davi d Br andt Oakl ey, POOLE MAHONEY PC, Chesapeake,
Vi r gi ni a; Davi d Aust i n Rober t Ni mocks, ALLI ANCE DEFENDI NG
FREEDOM, Washi ngt on, D. C. , f or Appel l ant s Geor ge E. Schaef er ,
I I I and Mi chl e McQui gg. St uar t Al an Raphael , OFFI CE OF THE
ATTORNEY GENERAL OF VI RGI NI A, Ri chmond, Vi r gi ni a, f or Appel l ant
J anet M. Rai ney. Theodor e B. Ol son, GI BSON, DUNN & CRUTCHER,
LLP, Washi ngt on, D. C. , f or Appel l ees. J ames D. Esseks, AMERI CAN
CI VI L LI BERTI ES UNI ON, New Yor k, New Yor k, f or I nt er venor s. ON
BRIEF: J ef f r ey F. Br ooke, POOLE MAHONEY PC, Chesapeake,
Vi r gi ni a, f or Appel l ant Geor ge E. Schaef er , I I I . Byr on J .
Babi one, Kennet h J . Connel l y, J . Cal eb Dal t on, ALLI ANCE
DEFENDI NG FREEDOM, Scot t sdal e, Ar i zona, f or Appel l ant Mi chl e B.
McQui gg. Mar k R. Her r i ng, At t or ney Gener al , Cynt hi a E. Hudson,
Chi ef Deput y At t or ney Gener al , Rhodes B. Ri t enour , Deput y
At t or ney Gener al , Al l yson K. Tysi nger , Seni or Assi st ant At t or ney
Gener al , Cat her i ne Cr ooks Hi l l , Seni or Assi st ant At t or ney
Gener al , Tr evor S. Cox, Deput y Sol i ci t or Gener al , OFFI CE OF THE
ATTORNEY GENERAL OF VI RGI NI A, Ri chmond, Vi r gi ni a, f or Appel l ant
J anet M. Rai ney. Davi d Boi es, Ar monk, New Yor k, Wi l l i am A.
I saacson, Washi ngt on, D. C. , J er emy M. Gol dman, Oakl and,
Cal i f or ni a, Rober t Si l ver , J oshua I . Schi l l er , BOI ES, SCHI LLER &
FLEXNER LLP, New Yor k, New Yor k; Theodor e J . Bout r ous, J r . ,
J oshua S. Li pshut z, GI BSON, DUNN & CRUTCHER LLP, Los Angel es,
Cal i f or ni a; Thomas B. Shut t l ewor t h, Rober t E. Rul of f , Char l es B.
Lust i g, Andr ew M. Hendr i ck, Er i k C. Por car o, SHUTTLEWORTH,
RULOFF, SWAI N, HADDAD & MORECOCK, P. C. , Vi r gi ni a Beach,
Vi r gi ni a, f or Appel l ees. Rebecca K. Gl enber g, AMERI CAN CI VI L
LI BERTI ES UNI ON OF VI RGI NI A FOUNDATI ON, I NC. , Ri chmond,
Vi r gi ni a; J oshua A. Bl ock, AMERI CAN CI VI L LI BERTI ES UNI ON
FOUNDATI ON, New Yor k, New Yor k; Gr egor y R. Nevi ns, Tar a L.
Bor el l i , LAMBDA LEGAL DEFENSE AND EDUCATI ON FUND, I NC. , At l ant a,
Geor gi a; Paul M. Smi t h, Luke C. Pl at zer , Mar k P. Gaber , J ENNER &
BLOCK LLP, Washi ngt on, D. C. , f or I nt er venor s. Davi d A.
Robi nson, Nor t h Haven, Connect i cut , as Ami cus. Lynn D. War dl e,
BRI GHAM YOUNG UNI VERSI TY LAW SCHOOL, Pr ovo, Ut ah; Wi l l i am C.
Duncan, MARRI AGE LAW FOUNDATI ON, Lehi , Ut ah, f or Ami ci Al an J .
Hawki ns and J ason S. Car r ol l . Debor ah J . Dewar t , DEBORAH J .
DEWART, ATTORNEY AT LAW, Swansbor o, Nor t h Car ol i na, f or Ami ci
Nor t h Car ol i na Val ues Coal i t i on and Li ber t y, Li f e, and Law
Foundat i on. St eve C. Tayl or , ALLI ANCE LEGAL GROUP, Chesapeake,
Vi r gi ni a, f or Ami cus Soci al Sci ence Pr of essor s. Paul Benj ami n
14

Li nt on, Nor t hbr ook, I l l i noi s, f or Ami cus Fami l y Resear ch
Counci l . J ohn C. East man, Ant hony T. Caso, Cent er f or
Const i t ut i onal J ur i spr udence, CHAPMAN UNI VERSI TY DALE E. FOWLER
SCHOOL OF LAW, Or ange, Cal i f or ni a, f or Ami ci Vi r gi ni a Cat hol i c
Conf er ence, LLC and Cent er f or Const i t ut i onal J ur i spr udence.
Pat r i ck Mor r i sey, At t or ney Gener al , J ul i e Mar i e Bl ake, Assi st ant
At t or ney Gener al , El ber t Li n, Sol i ci t or Gener al , OFFI CE OF THE
WEST VI RGI NI A ATTORNEY GENERAL, Char l est on, West Vi r gi ni a, f or
Ami cus St at e of West Vi r gi ni a. D. J ohn Sauer , St . Loui s,
Mi ssour i , f or Ami cus I nst i t ut e f or Mar r i age and Publ i c Pol i cy.
Henr y P. Wal l , Col umbi a, Sout h Car ol i na, f or Ami cus Hel en M.
Al var e. Gr egor y F. Zoel l er , At t or ney Gener al , Thomas M. Fi sher ,
Sol i ci t or Gener al , OFFI CE OF THE ATTORNEY GENERAL, I ndi anapol i s,
I ndi ana; Lut her St r ange, At t or ney Gener al , OFFI CE OF THE
ATTORNEY GENERAL OF ALABAMA, Mont gomer y, Al abama; Mi chael C.
Ger aght y, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
ALASKA, J uneau, Al aska; Thomas C. Hor ne, At t or ney Gener al ,
OFFI CE OF THE ATTORNEY GENERAL OF ARI ZONA, Phoeni x, Ar i zona;
J ohn Sut her s, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL
OF COLORADO, Denver , Col or ado; Lawr ence G. Wasden, At t or ney
Gener al , OFFI CE OF THE ATTORNEY GENERAL OF I DAHO, Boi se, I daho;
J ames D. " Buddy" Cal dwel l , At t or ney Gener al , OFFI CE OF THE
ATTORNEY GENERAL OF LOUI SI ANA, Bat on Rouge, Loui si ana; Ti mot hy
C. Fox, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
MONTANA, Hel ena, Mont ana; J on Br uni ng, At t or ney Gener al , OFFI CE
OF THE ATTORNEY GENERAL OF NEBRASKA, Li ncol n, Nebr aska; E. Scot t
Pr ui t t , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
OKLAHOMA, Okl ahoma Ci t y, Okl ahoma; Al an Wi l son, At t or ney
Gener al , OFFI CE OF THE ATTORNEY GENERAL OF SOUTH CAROLI NA,
Col umbi a, Sout h Car ol i na; Mar t y J . J ackl ey, At t or ney Gener al ,
OFFI CE OF THE ATTORNEY GENERAL OF SOUTH DAKOTA, Pi er r e, Sout h
Dakot a; Sean Reyes, At t or ney Gener al , OFFI CE OF THE ATTORNEY
GENERAL OF THE STATE OF UTAH, Sal t Lake Ci t y, Ut ah; Pet er K.
Mi chael , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
WYOMI NG, Cheyenne, Wyomi ng, f or Ami ci St at es of I ndi ana,
Al abama, Al aska, Ar i zona, Col or ado, I daho, Loui si ana, Mont ana,
Nebr aska, Okl ahoma, Sout h Car ol i na, Sout h Dakot a, Ut ah, and
Wyomi ng. St ephen M. Cr ampt on, Mar y E. McAl i st er , LI BERTY
COUNSEL, Lynchbur g, Vi r gi ni a, f or Ami cus Wal l Bui l der s, LLC.
Mat hew D. St aver , Ani t a L. St aver , LI BERTY COUNSEL, Or l ando,
Fl or i da, f or Ami ci Li ber t y Counsel and Amer i can Col l ege of
Pedi at r i ci ans. Fr ank D. Myl ar , MYLAR LAW, P. C. , Sal t Lake Ci t y,
Ut ah, f or Ami ci Schol ar s of Hi st or y and Rel at ed Di sci pl i nes and
Amer i can Leader shi p Fund. Mi chael F. Smi t h, THE SMI TH APPELLATE
LAW FI RM, Washi ngt on, D. C. , f or Ami ci Rober t P. Geor ge, Sher i f
Gi r gi s, and Ryan T. Ander son. Ger ar d V. Br adl ey, NOTRE DAME LAW
SCHOOL, Not r e Dame, I ndi ana; Kevi n T. Sni der , PACI FI C J USTI CE
15

I NSTI TUTE, Oakl and, Cal i f or ni a, f or Ami cus Paul McHugh. Ant hony
R. Pi car el l o, J r . , U. S. CONFERENCE OF CATHOLI C BI SHOPS,
Washi ngt on, D. C. ; R. Shawn Gunnar son, KI RTON MCCONKI E, Sal t Lake
Ci t y, Ut ah, f or Ami ci Uni t ed St at es Conf er ence of Cat hol i c
Bi shops, Nat i onal Associ at i on of Evangel i cal s, Chur ch of J esus
Chr i st of Lat t er - Day Sai nt s, The Et hi cs & Rel i gi ous Li ber t y
Commi ssi on of t he Sout her n Bapt i st Convent i on, and Lut her an
Chur ch- Mi ssour i Synod. Er i c Rassbach, Asma Uddi n, THE BECKET
FUND FOR RELI GI OUS LI BERTY, Washi ngt on, D. C. , f or Ami cus The
Becket Fund f or Rel i gi ous Li ber t y. Lawr ence J . J oseph,
Washi ngt on, D. C. f or Ami cus Eagl e For um Educat i on and Legal
Def ense Fund. Davi d Boyl e, Long Beach, Cal i f or ni a, as Ami cus.
Davi d Boyl e, Long Beach, Cal i f or ni a, f or Ami cus Rober t Oscar
Lopez. Abbe Davi d Lowel l , Chr i st opher D. Man, CHADBOURNE &
PARKE LLP, Washi ngt on, D. C. , f or Ami ci Out ser ve- SLDN and The
Amer i can Mi l i t ar y Par t ner Associ at i on. Geof f r ey R. St one, THE
UNI VERSI TY OF CHI CAGO LAWSCHOOL, Chi cago, I l l i noi s; Lor i Al vi no
McGi l l , LATHAM & WATKI NS LLP, Washi ngt on, D. C. , f or Ami ci
Const i t ut i onal Law Schol ar s Ashut osh Bhagwat , Lee Bol l i nger ,
Er wi n Chemer i nsky, Wal t er Del l i nger , Mi chael C. Dor f , Lee
Epst ei n, Dani el Far ber , Bar r y Fr i edman, Mi chael J . Ger har dt ,
Debor ah Hel l man, J ohn C. J ef f r i es, J r . , Lawr ence Lessi g, Wi l l i am
Mar shal l , Fr ank Mi chel man, J ane S. Schact er , Chr i st opher H.
Schr oeder , Suzanna Sher r y, Geof f r ey R. St one, Davi d St r auss,
Laur ence H. Tr i be, and Wi l l i amVan Al st yne. St even W. Fi t schen,
THE NATI ONAL LEGAL FOUNDATI ON, Vi r gi ni a Beach, Vi r gi ni a; Hol l y
L. Car mi chael , San J ose, Cal i f or ni a, f or Ami cus Concer ned Women
f or Amer i ca. Car mi ne D. Boccuzzi , J r . , Mar k A. Li ght ner , Andr a
Tr oy, Andr ew P. Mei ser , CLEARY GOTTLI EB STEEN & HAMI LTON LLP,
New Yor k, New Yor k, f or Ami cus The Amer i can Soci ol ogi cal
Associ at i on. L. St even Emmer t , SYKES, BOURDON, AHERN & LEVY,
P. C. , Vi r gi ni a Beach, Vi r gi ni a, f or Ami cus Vi r gi ni a
Const i t ut i onal Law Pr of essor s. Nat hal i e F. P. Gi l f oyl e, AMERI CAN
PSYCHOLOGI CAL ASSOCI ATI ON, Washi ngt on, D. C. ; Br uce V. Spi va, THE
SPI VA LAW FI RM PLLC, Washi ngt on, D. C. , f or Ami ci Amer i can
Psychol ogi cal Associ at i on, Amer i can Academy of Pedi at r i cs,
Amer i can Psychi at r i c Associ at i on, Nat i onal Associ at i on of Soci al
Wor ker s, and Vi r gi ni a Psychol ogi cal Associ at i on. Mar k
Kl ei nschmi dt , TI N FULTON WALKER & OWEN, Chapel Hi l l , Nor t h
Car ol i na; Ryan T. But l er , Gr eensbor o, Nor t h Car ol i na, f or Ami ci
Equal i t y NC and Sout h Car ol i na Equal i t y Coal i t i on. Rose A.
Saxe, J ames D. Esseks, AMERI CAN CI VI L LI BERTI ES UNI ON
FOUNDATI ON, New Yor k, New Yor k; Gar r ar d R. Beeney, Davi d A.
Cast l eman, Cat her i ne M. Br adl ey, W. Rudol ph Kl eyst euber ,
SULLI VAN & CROMWELL LLP, New Yor k, New Yor k, f or Ami ci Mar ci e
and Chant el l e Fi sher - Bor ne, Cr yst al Hendr i x and Lei gh Smi t h,
Shana Car i gnan and Megan Par ker , Ter r i Beck and Lesl i e Zanagl i o,
16

Lee Kni ght Caf f er y and Dana Dr aa, Shawn Long and Cr ai g J ohnson,
and Esmer al da Mej i a and Chr i st i na Gi nt er - Mej i a. El i zabet h B.
Wydr a, Dougl as T. Kendal l , J udi t h E. Schaef f er , Davi d H. Gans,
CONSTI TUTI ONAL ACCOUNTABI LI TY CENTER, Washi ngt on, D. C. ; I l ya
Shapi r o, CATO I NSTI TUTE, Washi ngt on, D. C. , f or Ami ci Cat o
I nst i t ut e and Const i t ut i onal Account abi l i t y Cent er . Dani el
McNeel Lane, J r . , Mat t hew E. Peppi ng, San Ant oni o, Texas,
J essi ca M. Wei sel , AKI N GUMP STRAUSS HAUER & FELD LLP, Los
Angel es, Cal i f or ni a, f or Ami ci Hi st or i ans of Mar r i age Pet er W.
Bar dagl i o, Nor ma Basch, St ephani e Coont z, Nancy F. Cot t , Toby L.
Di t z, Ar i el a R. Dubl er , Laur a F. Edwar ds, Sar ah Bar r i nger
Gor don, Mi chael Gr ossber g, Hendr i k Har t og, El l en Her man, Mar t ha
Hodes, Li nda K. Ker ber , Al i ce Kessl er - Har r i s, El ai ne Tyl er May,
Ser ena Mayer i , St eve Mi nt z, El i zabet h Pl eck, Car ol e Shammas,
Mar y L. Shanl ey, Amy Dr u St anl ey, and Bar bar a Wel ke. J i yun
Camer on Lee, Andr ew J . Davi s, FOLGER LEVI N LLP, San Fr anci sco,
Cal i f or ni a, f or Ami cus Par ent s, Fami l i es and Fr i ends of Lesbi ans
and Gays, I nc. Ri t a F. Li n, Laur a W. Wei ssbei n, Sar a Bar t el ,
MORRI SON & FOERSTER LLP, San Fr anci sco, Cal i f or ni a, f or Ami ci
Ker r y Abr ams, Al ber t Cl ar k Tat e, J r . Pr of essor of Law Uni ver si t y
of Vi r gi ni a School of Law, Vi vi an Hami l t on, Pr of essor of Law
Wi l l i am and Mar y, Mer edi t h Har bach, Pr of essor of Law Uni ver si t y
of Ri chmond, J oan Hei f et z Hol l i nger , J ohn and El i zabet h Boal t
Lect ur er i n Resi dence Uni ver si t y of Cal i f or ni a, Ber kel ey School
of Law, Cour t ney G. J osl i n, Pr of essor of Law Uni ver si t y of
Cal i f or ni a, Davi s School of Law, and For t y- Four Ot her Fami l y Law
Pr of essor s. Sher r i l yn I f i l l , Chr i st i na A. Swar ns, Ri a Tabacco
Mar , NAACP LEGAL DEFENSE & EDUCATI ONAL FUND, I NC. , New Yor k, New
Yor k; Ki m M. Keenan, NAACP, Bal t i mor e, Mar yl and, f or Ami ci NAACP
Legal Def ense & Educat i onal Fund, I nc. and Nat i onal Associ at i on
f or t he Advancement of Col or ed Peopl e. Ader son Bel l egar de
Fr ancoi s, HOWARD UNI VERSI TY SCHOOL OF LAW CI VI L RI GHTS CLI NI C,
Washi ngt on, D. C. ; Br ad W. Sei l i ng, Benj ami n G. Shat z, MANATT,
PHELPS & PHI LLI PS, LLP, Los Angel es, Cal i f or ni a, f or Ami cus
Howar d Uni ver si t y School of Law Ci vi l Ri ght s Cl i ni c. Al ec W.
Far r , Washi ngt on, D. C. , Tr acy M. Tal bot , Kat her i ne Keat i ng,
BRYAN CAVE LLP, San Fr anci sco, Cal i f or ni a, f or Ami ci Fami l y
Equal i t y Counci l and COLAGE. Ni chol as M. O' Donnel l , SULLI VAN &
WORCESTER LLP, Bost on, Massachuset t s, f or Ami cus GLMA: Heal t h
Pr of essi onal s Advanci ng LGBT Equal i t y. Kat hl een M. O' Sul l i van,
Mi ca D. Si mpson, PERKI NS COI E LLP, Seat t l e, Washi ngt on, f or
Ami ci Wi l l i am N. Eskr i dge, J r . , Rebecca L. Br own, Dani el A.
Far ber , Mi chael Ger har dt , J ack Kni ght , Andr ew Koppel man, Mel i ssa
Lamb Saunder s, Nei l S. Si egel , and J ana B. Si nger . Cat her i ne E.
St et son, Er i ca Kni evel Songer , Mar y Hel en Wi mber l y, Kat i e D.
Fai r chi l d, Madel i ne H. Gi t omer , HOGAN LOVELLS US LLP,
Washi ngt on, D. C. , f or Ami cus Hi st or i ans of Ant i gay
17

Di scr i mi nat i on. Rocky C. Tsai , Samuel P. Bi cket t , Rebecca
Har l ow, ROPES & GRAY LLP, San Fr anci sco, Cal i f or ni a; St even M.
Fr eeman, Set h M. Mar ni n, Mel i ssa Gar l i ck, ANTI - DEFAMATI ON
LEAGUE, New Yor k, New Yor k, f or Ami ci Ant i - Def amat i on League,
Amer i cans Uni t ed f or Separ at i on of Chur ch and St at e, Bend t he
Ar c: A J ewi sh Par t ner shi p f or J ust i ce, Hadassah, The Women' s
Zi oni st Or gani zat i on of Amer i ca, Hi ndu Amer i can Foundat i on, The
I nt er f ai t h Al l i ance Foundat i on, J apanese Amer i can Ci t i zens
League, J ewi sh Soci al Pol i cy Act i on Net wor k, Keshet ,
Met r opol i t an Communi t y Chur ches, Mor e Li ght Pr esbyt er i ans, The
Nat i onal Counci l of J ewi sh Women, Nehi r i m, Peopl e For t he
Amer i can Way Foundat i on, Pr esbyt er i an Wel come, Reconci l i ngwor ks:
Lut her ans f or Ful l Par t i ci pat i on, Rel i gi ous I nst i t ut e, I nc. ,
Si kh Amer i can Legal Def ense and Educat i on Fund, Soci et y f or
Humani st i c J udai sm, T' Ruah: The Rabbi ni c Cal l f or Human Ri ght s,
and Women' s League For Conser vat i ve J udai sm. Mat t hew P.
McGui r e, Bever l ee E. Si l va, Di ane S. Wi zi g, ALSTON & BI RD LLP,
Dur ham, Nor t h Car ol i na; Suzanne B. Gol dber g, Sexual i t y and
Gender Law Cl i ni c, COLUMBI A LAW SCHOOL, New Yor k, New Yor k, f or
Ami cus Col umbi a Law School Sexual i t y and Gender Law Cl i ni c.
J ef f r ey S. Tr acht man, Nor man C. Si mon, J ason M. Mof f , Kur t M.
Denk, J essi ca N. Wi t t e, KRAMER LEVI N NAFTALI S & FRANKEL LLP, New
Yor k, New Yor k, f or Ami ci Bi shops of t he Epi scopal Chur ch i n
Vi r gi ni a, The Cent r al At l ant i c Conf er ence of t he Uni t ed Chur ch
of Chr i st , Cent r al Conf er ence of Amer i can Rabbi s, Mor mons f or
Equal i t y, Reconst r uct i oni st Rabbi ni cal Associ at i on,
Reconst r uct i oni st Rabbi ni cal Col l ege and J ewi sh
Reconst r uct i oni st Communi t i es, Uni on f or Ref or m J udai sm, The
Uni t ar i an Uni ver sal i st Associ at i on, Af f i r mat i on, Covenant
Net wor k of Pr esbyt er i ans, Met hodi st Feder at i on f or Soci al
Act i on, Mor e Li ght Pr esbyt er i ans, Pr esbyt er i an Wel come,
Reconci l i ng Mi ni st r i es Net wor k, Reconsi l i ngwor ks: Lut her ans For
Ful l Par t i ci pat i on, Rel i gi ous I nst i t ut e, I nc. , and Women of
Ref or m J udai sm. Susan Baker Manni ng, Mi chael L. Whi t l ock,
Mar gar et E. Sheer , J ar ed A. Cr af t , Sar a M. Car i an, J essi ca C.
Br ooks, Kat her i ne R. Moskop, J ohn A. Pol i t o, St ephani e Schust er ,
BI NGHAM MCCUTCHEN LLP, Washi ngt on, D. C. , f or Ami cus 28 Empl oyer s
and Or gani zat i ons Repr esent i ng Empl oyer s. Mar t ha Coakl ey,
At t or ney Gener al , J onat han B. Mi l l er , Assi st ant At t or ney
Gener al , Genevi eve C. Nadeau, Assi st ant At t or ney Gener al ,
Mi chel l e L. Leung, Assi st ant At t or ney Gener al , Fr eder i ck D.
Augenst er n, Assi st ant At t or ney Gener al , OFFI CE OF THE ATTORNEY
GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Bost on,
Massachuset t s; Kamal a D. Har r i s, At t or ney Gener al , OFFI CE OF THE
ATTORNEY GENERAL OF CALI FORNI A, Sacr ament o, Cal i f or ni a; Geor ge
J epsen, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
CONNECTI CUT, Har t f or d, Connect i cut ; I r vi n B. Nat han, At t or ney
18

Gener al , OFFI CE OF THE ATTORNEY GENERAL FOR THE DI STRI CT OF
COLUMBI A, Washi ngt on, D. C. ; Li sa Madi gan, At t or ney Gener al ,
OFFI CE OF THE ATTORNEY GENERAL OF I LLI NOI S, Chi cago, I l l i noi s;
Tom Mi l l er , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
I OWA, Des Moi nes, I owa; J anet T. Mi l l s, At t or ney Gener al , OFFI CE
OF THE ATTORNEY GENERAL OF MAI NE, August a, Mai ne; Dougl as F.
Gansl er , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
MARYLAND, Bal t i mor e, Mar yl and; J oseph A. Fost er , At t or ney
Gener al , OFFI CE OF THE ATTORNEY GENERAL OF NEW HAMPSHI RE,
Concor d, New Hampshi r e; Gar y K. Ki ng, At t or ney Gener al , OFFI CE
OF THE ATTORNEY GENERAL OF NEW MEXI CO, Sant a Fe, New Mexi co;
Er i c T. Schnei der man, At t or ney Gener al , OFFI CE OF THE ATTORNEY
GENERAL OF NEW YORK, New Yor k, New Yor k; El l en F. Rosenbl um,
At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF OREGON,
Sal em, Or egon; Wi l l i am H. Sor r el l , At t or ney Gener al , OFFI CE OF
THE ATTORNEY GENERAL OF VERMONT, Mont pel i er , Ver mont ; Rober t W.
Fer guson, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
WASHI NGTON, Ol ympi a, Washi ngt on, f or Ami ci Massachuset t s,
Cal i f or ni a, Connect i cut , Di st r i ct of Col umbi a, I l l i noi s, I owa,
Mai ne, Mar yl and, New Hampshi r e, New Mexi co, New Yor k, Or egon,
Ver mont , and Washi ngt on. Br ad W. Sei l i ng, Benj ami n G. Shat z,
MANATT, PHELPS & PHI LLI PS, LLP, Los Angel es, Cal i f or ni a, f or
Ami cus Gar y J . Gat es. Br uce A. Wessel , Moez M. Kaba, C.
Mi t chel l Hendy, Br i an Eggl est on, I RELL & MANELLA LLP, Los
Angel es, Cal i f or ni a, f or Ami cus Nat i onal and West er n St at es
Women' s Ri ght s Or gani zat i ons. Donal d K. But l er , BATZLI STI LES
BUTLER, P. C. , Ri chmond, Vi r gi ni a; Susan M. But l er , SHOUNBACH,
P. C. , Fai r f ax, Vi r gi ni a; Dani el L. Gr ay, St ephani e J . Smi t h,
Kr i st en L. Kugel , Anne B. Robi nson, COOPER GI NSBERG GRAY, PLLC,
Fai r f ax, Vi r gi ni a, f or Ami cus Vi r gi ni a Chapt er of The Amer i can
Academy of Mat r i moni al Lawyer s. Mar ci a D. Gr eenber ger , Emi l y J .
Mar t i n, Cor t el you C. Kenney, NATI ONAL WOMEN' S LAW CENTER,
Washi ngt on, D. C. , f or Ami ci The Nat i onal Women' s Law Cent er ,
Equal Ri ght s Advocat es, Legal Moment um, Nat i onal Associ at i on of
Women Lawyer s, Nat i onal Par t ner shi p f or Women & Fami l i es,
Sout hwest Women' s Law Cent er , Women' s Law Pr oj ect , and
Pr of essor s of Law Associ at ed wi t h The Wi l l i ams I nst i t ut e.
J er ome C. Rot h, Ni col e S. Phi l l i s, MUNGER, TOLLES & OLSON LLP,
San Fr anci sco, Cal i f or ni a, f or Ami cus Bay Ar ea Lawyer s f or
I ndi vi dual Fr eedom. Shannon P. Mi nt er , Chr i st opher F. St ol l ,
J ai me Hul i ng Del aye, NATI ONAL CENTER FOR LESBI AN RI GHTS,
Washi ngt on, D. C. , f or Ami ci Leader shi p Conf er ence on Ci vi l and
Human Ri ght s, Publ i c I nt er est Or gani zat i ons, and Bar
Associ at i ons. J oanna L. Gr ossman, HOFSTRA LAW SCHOOL,
Hempst ead, New Yor k; Mar j or y A. Gent r y, ARNOLD & PORTER LLP, San
Fr anci sco, Cal i f or ni a, f or Ami cus Fami l y Law and Conf l i ct of
Laws Pr of essor s. Mar k C. Fl emi ng, Fel i ci a H. El l swor t h, Bost on,
19

Massachuset t s, Paul R. Q. Wol f son, Di na B. Mi shr a, Leah M.
Li t man, Washi ngt on, D. C. , Al an Schoenf el d, WI LMER CUTLER
PI CKERI NG HALE AND DORR LLP, New Yor k, New Yor k, f or Ami cus Gay
& Lesbi an Advocat es & Def ender s. J ohn Humphr ey, THE HUMPHREY
LAW FI RM, Al exandr i a, Vi r gi ni a, f or Ami ci Peopl e of Fai t h For
Equal i t y i n Vi r gi ni a ( POFEV) , Cel ebr at i on Cent er f or Spi r i t ual
Li vi ng, Cl ar endon Pr esbyt er i an Chur ch, Commonweal t h Bapt i st
Chur ch, Congr egat i on or AMI , Hope Uni t ed Chur ch of Chr i st ,
Li t t l e Ri ver UCC, Met r opol i t an Communi t y Chur ch of Nor t her n
Vi r gi ni a, Mt . Ver non Uni t ar i an Chur ch, St . J ames UCC, St . J ohn' s
UCC, New Li f e Met r opol i t an Communi t y Chur ch, Uni t ar i an
Uni ver sal i st Fel l owshi p of t he Peni nsul a, Uni t ar i an Uni ver sal i st
Congr egat i on of St er l i ng, Uni t ed Chur ch of Chr i st of
Fr eder i cksbur g, Uni t ar i an Uni ver sal i st Chur ch of Loudoun, Rev.
Mar i e Hul m Adam, Rev. Mar t y Ander son, Rev. Robi n Ander son, Rev.
Ver ne Ar ens, Rabbi Li a Bass, Rev. J oseph G. Beat t i e, Rev. Mar c
Boswel l , Rev. Sue Br owni ng, Rev. J i mBundy, Rev. Mar k Byr d, Rev.
St even C. Cl unn, Rev. Dr . J ohn Coper haver , Rabbi Gar y Cr edi t or ,
Rev. Davi d Ensi gn, Rev. Henr y Fai r man, Rabbi J esse Gal l op, Rev.
Tom Ger st enl auer , Rev. Dr . Robi n H. Gor sl i ne, Rev. Tr i sh Hal l ,
Rev. War r en Hammonds, Rev. J on Heasl et , Rev. Dougl as Hodges,
Rev. Phyl l i s Hubbel l , Rev. St ephen G. Hyde, Rev. J anet J ames,
Rev. J ohn Manwel l , Rev. J ames W. McNeal , Andr ew Mer t z, Rev.
Andr ew Cl i ve Mi l l ar d, Rev. Dr . Mel ani e Mi l l er , Rev. Amber
Neur ot h, Rev. J ames Papi l e, Rev. Li nda Ol son Peebl es, Rev. Don
Pr ange, Rabbi Mi chael Ragozi n, Rabbi Ben Romer , Rev. J enni f er
Ryu, Rev. Anya Samml er - Mi chael , Rabbi Amy Schwar t zman, Rev.
Danny Spear s, Rev. Mar k Sur i ano, Rev. Rob Vaughn, Rev. Dani el
Vel ez- Ri ver a, Rev. Kat e R. Wal ker , Rev. Ter r ye Wi l l i ams, and
Rev. Dr . Kar en- Mar i e Yust .

20

FLOYD, Ci r cui t J udge:
Vi a var i ous st at e st at ut es and a st at e const i t ut i onal
amendment , Vi r gi ni a pr event s same- sex coupl es f r om mar r yi ng and
r ef uses t o r ecogni ze same- sex mar r i ages per f or med el sewher e.
Two same- sex coupl es f i l ed sui t t o chal l enge t he
const i t ut i onal i t y of t hese l aws, al l egi ng t hat t hey vi ol at e t he
Due Pr ocess and Equal Pr ot ect i on Cl auses of t he Four t eent h
Amendment . The di st r i ct cour t gr ant ed t he coupl es mot i on f or
summar y j udgment and enj oi ned Vi r gi ni a f r om enf or ci ng t he l aws.
Thi s appeal f ol l owed. Because we concl ude t hat Vi r gi ni a s same-
sex mar r i age bans i mper mi ssi bl y i nf r i nge on i t s ci t i zens
f undament al r i ght t o mar r y, we af f i r m.

I .
A.
Thi s case concer ns a ser i es of st at ut or y and const i t ut i onal
mechani sms t hat Vi r gi ni a empl oyed t o pr ohi bi t l egal r ecogni t i on
f or same- sex r el at i onshi ps i n t hat st at e.
1
Vi r gi ni a enact ed t he

1
Thr ee ot her st at es i n t hi s Ci r cui t have si mi l ar bans:
Nor t h Car ol i na, N. C. Const . ar t . XI V, 6; N. C. Gen. St at .
51- 1, 51- 1. 2; Sout h Car ol i na, S. C. Const . ar t . XVI I , 15;
S. C. Code Ann. 20- 1- 10, 20- 1- 15; and West Vi r gi ni a, W. Va.
Code 48- 2- 603. The Sout her n Di st r i ct of West Vi r gi ni a has
st ayed a chal l enge t o West Vi r gi ni a s st at ut e pendi ng our
r esol ut i on of t hi s appeal . McGee v. Col e, No. 3: 13- cv- 24068
( S. D. W. Va. J une 10, 2014) ( or der di r ect i ng st ay) .
21

f i r st of t hese l aws i n 1975: Vi r gi ni a Code sect i on 20- 45. 2,
whi ch pr ovi des t hat mar r i age bet ween per sons of t he same sex i s
pr ohi bi t ed. Af t er t he Supr eme Cour t of Hawai i t ook st eps t o
l egal i ze same- sex mar r i age i n t he mi d- 1990s, Vi r gi ni a amended
sect i on 20- 45. 2 t o speci f y t hat [ a] ny mar r i age ent er ed i nt o by
per sons of t he same sex i n anot her st at e or j ur i sdi ct i on shal l
be voi d i n al l r espect s i n Vi r gi ni a and any cont r act ual r i ght s
cr eat ed by such mar r i age shal l be voi d and unenf or ceabl e. I n
2004, Vi r gi ni a added ci vi l uni ons and si mi l ar ar r angement s t o
t he l i st of pr ohi bi t ed same- sex r el at i onshi ps vi a t he
Af f i r mat i on of Mar r i age Act . See Va. Code Ann. 20- 45. 3.
Vi r gi ni a s ef f or t s t o ban same- sex mar r i age and ot her
l egal l y r ecogni zed same- sex r el at i onshi ps cul mi nat ed i n t he
Mar shal l / Newman Amendment t o t he Vi r gi ni a Const i t ut i on:
That onl y a uni on bet ween one man and one woman may be
a mar r i age val i d i n or r ecogni zed by t hi s Commonweal t h
and i t s pol i t i cal subdi vi si ons.

Thi s Commonweal t h and i t s pol i t i cal subdi vi si ons shal l
not cr eat e or r ecogni ze a l egal st at us f or
r el at i onshi ps of unmar r i ed i ndi vi dual s t hat i nt ends t o
appr oxi mat e t he desi gn, qual i t i es, si gni f i cance, or
ef f ect s of mar r i age. Nor shal l t hi s Commonweal t h or
i t s pol i t i cal subdi vi si ons cr eat e or r ecogni ze anot her
uni on, par t ner shi p, or ot her l egal st at us t o whi ch i s
assi gned t he r i ght s, benef i t s, obl i gat i ons, qual i t i es,
or ef f ect s of mar r i age.

Va. Const . ar t . I , 15- A. The Vi r gi ni a Const i t ut i on i mposes
t wo hur dl es t hat a pot ent i al amendment must j ump bef or e becomi ng
l aw: t he Gener al Assembl y must appr ove t he amendment i n t wo
22

separ at e l egi sl at i ve sessi ons, and t he peopl e must r at i f y i t .
Va. Const . ar t . XI I , 1. The Gener al Assembl y appr oved t he
Mar shal l / Newman Amendment i n 2005 and 2006. I n November 2006,
Vi r gi ni a s vot er s r at i f i ed i t by a vot e of f i f t y- seven per cent
t o f or t y- t hr ee per cent . I n t he aggr egat e, Vi r gi ni a Code
sect i ons 20- 45. 2 and 20- 45. 3 and t he Mar shal l / Newman Amendment
pr ohi bi t same- sex mar r i age, ban ot her l egal l y r ecogni zed same-
sex r el at i onshi ps, and r ender same- sex mar r i ages per f or med
el sewher e l egal l y meani ngl ess under Vi r gi ni a st at e l aw.

B.
Same- sex coupl es Ti mot hy B. Bost i c and Tony C. London and
Car ol Schal l and Mar y Townl ey ( col l ect i vel y, t he Pl ai nt i f f s)
br ought t hi s l awsui t t o chal l enge t he const i t ut i onal i t y of
Vi r gi ni a Code sect i ons 20- 45. 2 and 20- 45. 3, t he Mar shal l / Newman
Amendment , and any ot her Vi r gi ni a l aw t hat bar s same- sex
mar r i age or pr ohi bi t s t he St at e s r ecogni t i on of ot her wi se-
l awf ul same- sex mar r i ages f r om ot her j ur i sdi ct i ons
( col l ect i vel y, t he Vi r gi ni a Mar r i age Laws) . The Pl ai nt i f f s
cl ai m t hat t he i nabi l i t y t o mar r y or have t hei r r el at i onshi p
r ecogni zed by t he Commonweal t h of Vi r gi ni a wi t h t he di gni t y and
r espect accor ded t o mar r i ed opposi t e- sex coupl es has caused t hem
si gni f i cant har dshi p . . . and sever e humi l i at i on, emot i onal
di st r ess, pai n, suf f er i ng, psychol ogi cal har m, and st i gma.
23

Bost i c and London have been i n a l ong- t er m, commi t t ed
r el at i onshi p wi t h each ot her si nce 1989 and have l i ved t oget her
f or mor e t han t went y year s. They desi r e t o mar r y each ot her
under t he l aws of t he Commonweal t h i n or der t o publ i cl y announce
t hei r commi t ment t o one anot her and t o enj oy t he r i ght s,
pr i vi l eges, and pr ot ect i ons t hat t he St at e conf er s on mar r i ed
coupl es. On J ul y 1, 2013, Bost i c and London appl i ed f or a
mar r i age l i cense f r om t he Cl er k f or t he Ci r cui t Cour t f or t he
Ci t y of Nor f ol k. The Cl er k deni ed t hei r appl i cat i on because
t hey ar e bot h men.
Schal l and Townl ey ar e women who have been a coupl e si nce
1985 and have l i ved t oget her as a f ami l y f or near l y t hi r t y
year s. They wer e l awf ul l y mar r i ed i n Cal i f or ni a i n 2008. I n
1998, Townl ey gave bi r t h t o t he coupl e s daught er , E. S. - T.
Schal l and Townl ey i dent i f y a host of consequences of t hei r
i nabi l i t y t o mar r y i n Vi r gi ni a and Vi r gi ni a s r ef usal t o
r ecogni ze t hei r Cal i f or ni a mar r i age, i ncl udi ng t he f ol l owi ng:
Schal l coul d not vi si t Townl ey i n t he hospi t al f or sever al
hour s when Townl ey was admi t t ed due t o pr egnancy- r el at ed
compl i cat i ons.
Schal l cannot l egal l y adopt E. S. - T. , whi ch f or ced her t o
r et ai n an at t or ney t o pet i t i on f or f ul l j oi nt l egal and
physi cal cust ody.
24

Vi r gi ni a wi l l not l i st bot h Schal l and Townl ey as E. S. -
T. s par ent s on her bi r t h cer t i f i cat e.
Unt i l Febr uar y 2013, Schal l and Townl ey coul d not cover one
anot her on t hei r empl oyer - pr ovi ded heal t h i nsur ance.
Townl ey has been abl e t o cover Schal l on her i nsur ance
si nce t hen, but , unl i ke an opposi t e- sex spouse, Schal l must
pay st at e i ncome t axes on t he benef i t s she r ecei ves.
Schal l and Townl ey must pay st at e t axes on benef i t s pai d
pur suant t o empl oyee benef i t s pl ans i n t he event of one of
t hei r deat hs.
Schal l and Townl ey cannot f i l e j oi nt st at e i ncome t ax
r et ur ns, whi ch has cost t hemt housands of dol l ar s.
On J ul y 18, 2013, Bost i c and London sued f or mer Gover nor
Rober t F. McDonnel l , f or mer At t or ney Gener al Kennet h T.
Cucci nel l i , and Geor ge E. Schaef er , I I I , i n hi s of f i ci al
capaci t y as t he Cl er k f or t he Ci r cui t Cour t f or t he Ci t y of
Nor f ol k. The Pl ai nt i f f s f i l ed t hei r Fi r st Amended Compl ai nt on
Sept ember 3, 2013. The Fi r st Amended Compl ai nt added Schal l and
Townl ey as pl ai nt i f f s, r emoved McDonnel l and Cucci nel l i as
def endant s, and added J anet M. Rai ney as a def endant i n her
of f i ci al capaci t y as t he St at e Regi st r ar of Vi t al Recor ds. The
Pl ai nt i f f s al l ege t hat t he Vi r gi ni a Mar r i age Laws ar e f aci al l y
i nval i d under t he Due Pr ocess and Equal Pr ot ect i on Cl auses of
25

t he Four t eent h Amendment and t hat Schaef er and Rai ney vi ol at ed
42 U. S. C. 1983 by enf or ci ng t hose l aws.
The par t i es f i l ed cr oss- mot i ons f or summar y j udgment . The
Pl ai nt i f f s al so r equest ed a per manent i nj unct i on i n connect i on
wi t h t hei r mot i on f or summar y j udgment and moved, i n t he
al t er nat i ve, f or a pr el i mi nar y i nj unct i on i n t he event t hat t he
di st r i ct cour t deni ed t hei r mot i on f or summar y j udgment . The
di st r i ct cour t gr ant ed a mot i on by Mi chl e McQui ggt he Pr i nce
Wi l l i am Count y Cl er k of Cour t t o i nt er vene as a def endant on
J anuar y 21, 2014. Two days l at er , new At t or ney Gener al Mar k
Her r i ngas Rai ney s counsel submi t t ed a f or mal change i n
posi t i on and r ef used t o def end t he Vi r gi ni a Mar r i age Laws,
al t hough Vi r gi ni a cont i nues t o enf or ce t hem. McQui gg adopt ed
Rai ney s pr i or mot i on f or summar y j udgment and t he br i ef s i n
suppor t of t hat mot i on.
The di st r i ct cour t hel d t hat t he Vi r gi ni a Mar r i age Laws
wer e unconst i t ut i onal on Febr uar y 14, 2014. Bost i c v. Rai ney,
970 F. Supp. 2d 456, 483 ( E. D. Va. 2014) . I t t her ef or e deni ed
Schaef er s and McQui gg s mot i ons f or summar y j udgment and
gr ant ed t he Pl ai nt i f f s mot i on. The di st r i ct cour t al so
enj oi ned Vi r gi ni a s empl oyeesi ncl udi ng Rai ney and her
empl oyeesand Schaef er , McQui gg, and t hei r of f i cer s, agent s, and
empl oyees f r om enf or ci ng t he Vi r gi ni a Mar r i age Laws. I d. at
26

484. The cour t st ayed t he i nj unct i on pendi ng our r esol ut i on of
t hi s appeal . I d.
Rai ney, Schaef er , and McQui gg t i mel y appeal ed t he di st r i ct
cour t s deci si on. We have j ur i sdi ct i on pur suant t o 28 U. S. C.
1291. On Mar ch 10, 2014, we al l owed t he pl ai nt i f f s f r om
Har r i s v. Rai neya si mi l ar case pendi ng bef or e J udge Mi chael
Ur banski i n t he West er n Di st r i ct of Vi r gi ni at o i nt er vene.
J udge Ur banski had pr evi ousl y cer t i f i ed t hat case as a cl ass
act i on on behal f of al l same- sex coupl es i n Vi r gi ni a who have
not mar r i ed i n anot her j ur i sdi ct i on and al l same- sex coupl es
i n Vi r gi ni a who have mar r i ed i n anot her j ur i sdi ct i on, excl udi ng
t he Pl ai nt i f f s. Har r i s v. Rai ney, No. 5: 13- cv- 077, 2014 WL
352188, at *1, 12 ( W. D. Va. J an. 31, 2014) .
Our anal ysi s pr oceeds i n t hr ee st eps. Fi r st , we consi der
whet her t he Pl ai nt i f f s possess st andi ng t o br i ng t hei r cl ai ms.
Second, we eval uat e whet her t he Supr eme Cour t s summar y
di smi ssal of a si mi l ar l awsui t i n Baker v. Nel son, 409 U. S. 810
( 1972) ( mem. ) , r emai ns bi ndi ng. Thi r d, we det er mi ne whi ch l evel
of const i t ut i onal scr ut i ny appl i es her e and t est t he Vi r gi ni a
Mar r i age Laws usi ng t he appr opr i at e st andar d. For pur poses of
t hi s opi ni on, we adopt t he t er mi nol ogy t he di st r i ct cour t used
t o descr i be t he par t i es i n t hi s case. The Pl ai nt i f f s, Rai ney,
and t he Har r i s cl ass ar e t he Opponent s of t he Vi r gi ni a
Mar r i age Laws. Schaef er and McQui gg ar e t he Pr oponent s.
27

I I .
Bef or e we t ur n t o t he mer i t s of t he par t i es ar gument s i n
t hi s case, we consi der Schaef er s cont ent i on t hat [ t ] he t r i al
cour t er r ed as a mat t er of l aw when i t f ound al l Pl ai nt i f f s had
st andi ng and asser t ed cl ai ms agai nst al l Def endant s. We r evi ew
t he di st r i ct cour t s di sposi t i on of cr oss- mot i ons f or summar y
j udgment i ncl udi ng i t s det er mi nat i ons r egar di ng st andi ngde
novo, vi ewi ng t he f act s i n t he l i ght most f avor abl e t o t he non-
movi ng par t y. Li ber t ar i an Par t y of Va. v. J udd, 718 F. 3d 308,
313 ( 4t h Ci r . 2013) ; Covenant Medi a of S. C. , LLC v. Ci t y of N.
Char l est on, 493 F. 3d 421, 427- 28 ( 4t h Ci r . 2007) . Summar y
j udgment i s appr opr i at e when t her e i s no genui ne di sput e as t o
any mat er i al f act and t he movant i s ent i t l ed t o j udgment as a
mat t er of l aw. Li ber t ar i an Par t y of Va. , 718 F. 3d at 313- 14
( quot i ng Fed. R. Ci v. P. 56( a) ) .
To est abl i sh st andi ng under Ar t i cl e I I I of t he
Const i t ut i on, a pl ai nt i f f must al l ege ( 1) an i nj ur y t hat i s
( 2) f ai r l y t r aceabl e t o t he def endant s al l egedl y unl awf ul
conduct and t hat i s ( 3) l i kel y t o be r edr essed by t he r equest ed
r el i ef . Luj an v. Def ender s of Wi l dl i f e, 504 U. S. 555, 590
( 1992) ( quot i ng Al l en v. Wr i ght , 468 U. S. 737, 751 ( 1984) )
( i nt er nal quot at i on mar ks omi t t ed) . The st andi ng r equi r ement
appl i es t o each cl ai m t hat a pl ai nt i f f seeks t o pr ess.
Dai ml er Chr ysl er Cor p. v. Cuno, 547 U. S. 332, 352 ( 2006) .
28

Schaef er pr emi ses hi s ar gument t hat t he Pl ai nt i f f s l ack st andi ng
t o br i ng t hei r cl ai ms on t he i dea t hat ever y pl ai nt i f f must have
st andi ng as t o ever y def endant . However , t he Supr eme Cour t has
made i t cl ear t hat t he pr esence of one par t y wi t h st andi ng i s
suf f i ci ent t o sat i sf y Ar t i cl e I I I s case- or - cont r over sy
r equi r ement . Rumsf el d v. For um f or Academi c & I nst i t ut i onal
Ri ght s, I nc. , 547 U. S. 47, 52 n. 2 ( 2006) ; see al so Dep t of
Commer ce v. U. S. House of Repr esent at i ves, 525 U. S. 316, 330
( 1999) ( hol di ng t hat a case i s j ust i ci abl e i f some, but not
necessar i l y al l , of t he pl ai nt i f f s have st andi ng as t o a
par t i cul ar def endant ) ; Vi l l . of Ar l i ngt on Hei ght s v. Met r o.
Housi ng Dev. Cor p. , 429 U. S. 252, 263- 64 ( 1977) ( same) . The
Pl ai nt i f f s cl ai ms can t her ef or e sur vi ve Schaef er s st andi ng
chal l enge as l ong as one coupl e sat i sf i es t he st andi ng
r equi r ement s wi t h r espect t o each def endant .
Schaef er ser ves as t he Cl er k f or t he Ci r cui t Cour t f or t he
Ci t y of Nor f ol k. I n Vi r gi ni a, ci r cui t cour t cl er ks ar e
r esponsi bl e f or i ssui ng mar r i age l i censes and f i l i ng r ecor ds of
mar r i age. Va. Code Ann. 20- 14, 32. 1- 267. Al t hough Schal l
and Townl ey di d not seek a mar r i age l i cense f r om Schaef er , t he
di st r i ct cour t f ound t hat Bost i c and London di d so and t hat
Schaef er deni ed t hei r r equest because t hey ar e a same- sex
29

coupl e.
2
Bost i c, 970 F. Supp. 2d at 462, 467. Thi s l i cense
deni al const i t ut es an i nj ur y f or st andi ng pur poses. See S.
Bl ast i ng Ser vs. , I nc. v. Wi l kes Cnt y. , 288 F. 3d 584, 595 ( 4t h
Ci r . 2002) ( expl ai ni ng t hat t he pl ai nt i f f s had not suf f er ed an
i nj ur y because t hey had not appl i ed f or , or been deni ed, t he
per mi t i n quest i on) ; Scot t v. Gr eenvi l l e Cnt y. , 716 F. 2d 1409,
1414- 15 & n. 6 ( 4t h Ci r . 1983) ( hol di ng t hat deni al of bui l di ng
per mi t const i t ut ed an i nj ur y) . Bost i c and London can t r ace t hi s
deni al t o Schaef er s enf or cement of t he al l egedl y
unconst i t ut i onal Vi r gi ni a Mar r i age Laws,
3
and decl ar i ng t hose

2
Schaef er cont ends t hat Schal l and Townl ey cannot br i ng a
1983 cl ai magai nst hi mf or t he same r eason: he di d not commi t
any act or omi ssi on t hat har med t hem. To br i ng a successf ul
1983 cl ai m, a pl ai nt i f f must show t hat t he al l eged
i nf r i ngement of f eder al r i ght s [ i s] f ai r l y at t r i but abl e t o t he
st at e[ . ] Rendel l - Baker v. Kohn, 457 U. S. 830, 838 ( 1982)
( quot i ng Lugar v. Edmondson Oi l Co. , 457 U. S. 922, 937 ( 1982) ) .
Schaef er s act i on i n denyi ng Bost i c and London s appl i cat i on f or
a mar r i age l i cense i s cl ear l y at t r i but abl e t o t he st at e. The
di st r i ct cour t coul d t her ef or e ent er t ai n a 1983 cl ai m agai nst
Schaef er wi t hout ascer t ai ni ng whet her he commi t t ed any act i on
wi t h r espect t o Schal l and Townl ey.
3
For t hi s r eason, and cont r ar y t o Schaef er s asser t i ons,
Schaef er i s al so a pr oper def endant under Ex par t e Young, 209
U. S. 123 ( 1908) . Pur suant t o Ex par t e Young, t he El event h
Amendment does not bar a ci t i zen f r om sui ng a st at e of f i cer t o
enj oi n t he enf or cement of an unconst i t ut i onal l aw when t he
of f i cer has some connect i on wi t h t he enf or cement of t he act .
Lyt l e v. Gr i f f i t h, 240 F. 3d 404, 412 ( 4t h Ci r . 2001) ( emphasi s
omi t t ed) ( quot i ng Ex par t e Young, 209 U. S. at 157) . Schaef er
bear s t he r equi si t e connect i on t o t he enf or cement of t he
Vi r gi ni a Mar r i age Laws due t o hi s r ol e i n gr ant i ng and denyi ng
appl i cat i ons f or mar r i age l i censes.
30

l aws unconst i t ut i onal and enj oi ni ng t hei r enf or cement woul d
r edr ess Bost i c and London s i nj ur i es. Bost i c and London
t her ef or e possess Ar t i cl e I I I st andi ng wi t h r espect t o Schaef er .
We consequent l y need not consi der whet her Schal l and Townl ey
have st andi ng t o sue Schaef er . See Hor ne v. Fl or es, 557 U. S.
433, 446- 47 ( 2009) ( decl i ni ng t o anal yze whet her addi t i onal
pl ai nt i f f s had st andi ng when one pl ai nt i f f di d) .
Rai neyas t he Regi st r ar of Vi t al Recor dsi s t asked wi t h
devel opi ng Vi r gi ni a s mar r i age l i cense appl i cat i on f or m and
di st r i but i ng i t t o t he ci r cui t cour t cl er ks t hr oughout Vi r gi ni a.
Va. Code Ann. 32. 1- 252( A) ( 9) , 32. 1- 267( E) . Nei t her
Schaef er s nor Rai ney s r esponse t o t he Fi r st Amended Compl ai nt
di sput es i t s descr i pt i on of Rai ney s dut i es:
Def endant Rai ney i s r esponsi bl e f or ensur i ng
compl i ance wi t h t he Commonweal t h s l aws r el at i ng t o
mar r i age i n gener al and, mor e speci f i cal l y, i s
r esponsi bl e f or enf or cement of t he speci f i c pr ovi si ons
at i ssue i n t hi s Amended Compl ai nt , namel y t hose l aws
t hat l i mi t mar r i age t o opposi t e- sex coupl es and t hat
r ef use t o honor t he benef i t s of same- sex mar r i ages
l awf ul l y ent er ed i nt o i n ot her st at es.

I n addi t i on t o per f or mi ng t hese mar r i age- r el at ed f unct i ons,
Rai ney devel ops and di st r i but es bi r t h cer t i f i cat e f or ms,
over sees t he r ul es r el at i ng t o bi r t h cer t i f i cat es, and f ur ni shes
f or ms r el at i ng t o adopt i on so t hat Vi r gi ni a can col l ect t he
i nf or mat i on necessar y t o pr epar e t he adopt ed chi l d s bi r t h
31

cer t i f i cat e. I d. 32. 1- 252( A) ( 2) - ( 3) , ( 9) , 32. 1- 257, 32. 1-
261( A) ( 1) , 32. 1- 262, 32. 1- 269.
Rai ney s pr omul gat i on of a mar r i age l i cense appl i cat i on
f or m t hat does not al l ow same- sex coupl es t o obt ai n mar r i age
l i censes r esul t ed i n Schaef er s deni al of Bost i c and London s
mar r i age l i cense r equest . For t he r easons we descr i be above,
t hi s l i cense deni al const i t ut es an i nj ur y. Bost i c and London
can t r ace t hi s i nj ur y t o Rai ney due t o her r ol e i n devel opi ng
t he mar r i age l i cense appl i cat i on f or m i n compl i ance wi t h t he
Vi r gi ni a Mar r i age Laws, and t he r el i ef t hey seek woul d r edr ess
t hei r i nj ur i es. Bost i c and London consequent l y have st andi ng t o
sue Rai ney.
Schal l and Townl ey al so possess st andi ng t o br i ng t hei r
cl ai ms agai nst Rai ney. They sat i sf y t he i nj ur y r equi r ement i n
t wo ways. Fi r st , i n equal pr ot ect i on casessuch as t hi s case
[ w] hen t he gover nment er ect s a bar r i er t hat makes i t mor e
di f f i cul t f or member s of one gr oup t o obt ai n a benef i t t han i t
i s f or member s of anot her gr oup, . . . . [ t ] he i nj ur y i n f act
. . . i s t he deni al of equal t r eat ment r esul t i ng f r om t he
i mposi t i on of t he bar r i er [ . ] Ne. Fl a. Chapt er of Associ at ed
Gen. Cont r act or s of Am. v. Ci t y of J acksonvi l l e, 508 U. S. 656,
666 ( 1993) . The Vi r gi ni a Mar r i age Laws er ect such a bar r i er ,
whi ch pr event s same- sex coupl es f r om obt ai ni ng t he emot i onal ,
soci al , and f i nanci al benef i t s t hat opposi t e- sex coupl es r eal i ze
32

upon mar r i age. Second, Schal l and Townl ey al l ege t hat t hey have
suf f er ed st i gmat i c i nj ur i es due t o t hei r i nabi l i t y t o get
mar r i ed i n Vi r gi ni a and Vi r gi ni a s r ef usal t o r ecogni ze t hei r
Cal i f or ni a mar r i age. St i gmat i c i nj ur y st emmi ng f r om
di scr i mi nat or y t r eat ment i s suf f i ci ent t o sat i sf y st andi ng s
i nj ur y r equi r ement i f t he pl ai nt i f f i dent i f i es some concr et e
i nt er est wi t h r espect t o whi ch [ he or she] [ i s] per sonal l y
subj ect t o di scr i mi nat or y t r eat ment and [ t ] hat i nt er est . . .
i ndependent l y sat i sf [ i es] t he causat i on r equi r ement of st andi ng
doct r i ne. Al l en, 468 U. S. at 757 n. 22, abr ogat ed on ot her
gr ounds by Lexmar k I nt l , I nc. v. St at i c Cont r ol Component s, 134
S. Ct . 1377 ( 2014) . Schal l and Townl ey poi nt t o sever al
concr et e ways i n whi ch t he Vi r gi ni a Mar r i age Laws have r esul t ed
i n di scr i mi nat or y t r eat ment . For exampl e, t hey al l ege t hat
t hei r mar i t al st at us has hi nder ed Schal l f r om vi si t i ng Townl ey
i n t he hospi t al , pr event ed Schal l f r om adopt i ng E. S. - T. ,
4
and
subj ect ed Schal l and Townl ey t o t ax bur dens f r om whi ch mar r i ed
opposi t e- sex coupl es ar e exempt . Because Schal l and Townl ey
hi ghl i ght speci f i c, concr et e i nst ances of di scr i mi nat i on r at her

4
Vi r gi ni a does not expl i ci t l y pr ohi bi t same- sex coupl es
f r om adopt i ng chi l dr en. The Vi r gi ni a Mar r i age Laws i mpose a
f unct i onal ban on adopt i on by same- sex coupl es because t he
Vi r gi ni a Code al l ows onl y mar r i ed coupl es or unmar r i ed
i ndi vi dual s t o adopt chi l dr en. Va. Code Ann. 63. 2- 1232( A) ( 6) .
33

t han maki ng abst r act al l egat i ons, t hei r st i gmat i c i nj ur i es ar e
l egal l y cogni zabl e.
Schal l and Townl ey s i nj ur i es ar e t r aceabl e t o Rai ney s
enf or cement of t he Vi r gi ni a Mar r i age Laws. Because decl ar i ng
t he Vi r gi ni a Mar r i age Laws unconst i t ut i onal and enj oi ni ng t hei r
enf or cement woul d r edr ess Schal l and Townl ey s i nj ur i es, t hey
sat i sf y st andi ng doct r i ne s t hr ee r equi r ement s wi t h r espect t o
Rai ney. I n sum, each of t he Pl ai nt i f f s has st andi ng as t o at
l east one def endant .

I I I .
Havi ng r esol ved t he t hr eshol d i ssue of whet her t he
Pl ai nt i f f s have st andi ng t o sue Schaef er and Rai ney, we now t ur n
t o t he mer i t s of t he Opponent s Four t eent h Amendment ar gument s.
We begi n wi t h t he i ssue of whet her t he Supr eme Cour t s summar y
di smi ssal i n Baker v. Nel son set t l es t hi s case. Baker came t o
t he Supr eme Cour t as an appeal f r om a Mi nnesot a Supr eme Cour t
deci si on, whi ch hel d t hat a st at e st at ut e t hat t he cour t
i nt er pr et ed t o bar same- sex mar r i ages di d not vi ol at e t he
Four t eent h Amendment s Due Pr ocess or Equal Pr ot ect i on Cl auses.
Baker v. Nel son, 191 N. W. 2d 185, 187 ( Mi nn. 1971) . At t he t i me,
28 U. S. C. 1257 r equi r ed t he Supr eme Cour t t o accept appeal s of
st at e supr eme cour t cases i nvol vi ng const i t ut i onal chal l enges t o
st at e st at ut es, such as Baker . See Hi cks v. Mi r anda, 422 U. S.
34

332, 344 ( 1975) . The Cour t di smi ssed t he appeal i n a one-
sent ence opi ni on f or want of a subst ant i al f eder al quest i on.
Baker , 409 U. S. 810.
Summar y di smi ssal s qual i f y as vot es on t he mer i t s of a
case. Hi cks, 422 U. S. at 344 ( quot i ng Ohi o ex r el . Eat on v.
Pr i ce, 360 U. S. 246, 247 ( 1959) ) ( i nt er nal quot at i on mar ks
omi t t ed) . They t her ef or e pr event l ower cour t s f r om comi ng t o
opposi t e concl usi ons on t he pr eci se i ssues pr esent ed and
necessar i l y deci ded. Mandel v. Br adl ey, 432 U. S. 173, 176
( 1977) ( per cur i am) . However , t he f act t hat Baker and t he case
at hand addr ess t he same pr eci se i ssues does not end our
i nqui r y. Summar y di smi ssal s l ose t hei r bi ndi ng f or ce when
doct r i nal devel opment s i l l ust r at e t hat t he Supr eme Cour t no
l onger vi ews a quest i on as unsubst ant i al , r egar dl ess of whet her
t he Cour t expl i ci t l y over r ul es t he case. Hi cks, 422 U. S. at 344
( quot i ng Por t Aut h. Bondhol der s Pr ot ect i ve Comm. v. Por t of N. Y.
Aut h. , 387 F. 2d 259, 263 n. 3 ( 2d Ci r . 1967) ) ( i nt er nal quot at i on
mar ks omi t t ed) . The di st r i ct cour t det er mi ned t hat doct r i nal
devel opment s st r i pped Baker of i t s st at us as bi ndi ng pr ecedent .
Bost i c, 970 F. Supp. 2d at 469- 70. Ever y f eder al cour t t o
consi der t hi s i ssue si nce t he Supr eme Cour t deci ded Uni t ed
St at es v. Wi ndsor , 133 S. Ct . 2675 ( 2013) , has r eached t he same
concl usi on. See Bi shop v. Smi t h, Nos. 14- 5003, 14- 5006, 2014 WL
3537847, at *6- 7 ( 10t h Ci r . J ul y 18, 2014) ; Ki t chen v. Her ber t ,
35

No. 13- 4178, 2014 WL 2868044, at *7- 10 ( 10t h Ci r . J une 25,
2014) ; Love v. Beshear , No. 3: 13- cv- 750- H, 2014 WL 2957671, *2- 3
( W. D. Ky. J ul y 1, 2014) ; Baski n v. Bogan, Nos. 1: 14- cv- 00355-
RLY- TAB, 1: 14- cv- 00404- RLY- TAB, 2014 WL 2884868, at *4- 6 ( S. D.
I nd. J une 25, 2014) ; Wol f v. Wal ker , No. 14- cv- 64- bbc, 2014 WL
2558444, at *4- 6 ( W. D. Wi s. J une 6, 2014) ; Whi t ewood v. Wol f ,
No. 1: 13- cv- 1861, 2014 WL 2058105, at *5- 6 ( M. D. Pa. May 20,
2014) ; Gei ger v. Ki t zhaber , Nos. 6: 13- cv- 01834- MC, 6: 13- cv-
02256- MC, 2014 WL 2054264, at *1 n. 1 ( D. Or . May 19, 2014) ;
Lat t a v. Ot t er , No. 1: 13- cv- 00482- CWD, 2014 WL 1909999, at *8- 9
( D. I daho May 13, 2014) ; DeBoer v. Snyder , 973 F. Supp. 2d 757,
773 n. 6 ( E. D. Mi ch. 2014) ; De Leon v. Per r y, 975 F. Supp. 2d
632, 647- 49 ( W. D. Tex. 2014) ; McGee v. Col e, No. 3: 13- 24068,
2014 WL 321122, at *8- 10 ( S. D. W. Va. J an. 29, 2014) .
Wi ndsor concer ned whet her sect i on 3 of t he f eder al Def ense
of Mar r i age Act ( DOMA) cont r avened t he Const i t ut i on s due
pr ocess and equal pr ot ect i on guar ant ees. Sect i on 3 def i ned
mar r i age and spouse as excl udi ng same- sex coupl es when t hose
t er ms appear ed i n f eder al st at ut es, r egul at i ons, and di r ect i ves,
r ender i ng l egal l y mar r i ed same- sex coupl es i nel i gi bl e f or myr i ad
f eder al benef i t s. 133 S. Ct . at 2683, 2694. When i t deci ded
t he case bel ow, t he Second Ci r cui t concl uded t hat Baker was no
l onger pr ecedent i al , Wi ndsor v. Uni t ed St at es, 699 F. 3d 169,
178- 79 ( 2d Ci r . 2012) , over t he di ssent s vi gor ous ar gument s t o
36

t he cont r ar y, see i d. at 192- 95 ( St r aub, J . , di ssent i ng i n par t
and concur r i ng i n par t ) . Despi t e t hi s di sput e, t he Supr eme
Cour t di d not di scuss Baker i n i t s opi ni on or dur i ng or al
ar gument .
5

The Supr eme Cour t s wi l l i ngness t o deci de Wi ndsor wi t hout
ment i oni ng Baker speaks vol umes r egar di ng whet her Baker r emai ns
good l aw. The Cour t s devel opment of i t s due pr ocess and equal
pr ot ect i on j ur i spr udence i n t he f our decades f ol l owi ng Baker i s
even mor e i nst r uct i ve. On t he Due Pr ocess f r ont , Lawr ence v.
Texas, 539 U. S. 558 ( 2003) , and Wi ndsor ar e par t i cul ar l y
r el evant . I n Lawr ence, t he Cour t r ecogni zed t hat t he Due
Pr ocess Cl auses of t he Fi f t h and Four t eent h Amendment s af f or d
const i t ut i onal pr ot ect i on t o per sonal deci si ons r el at i ng t o
mar r i age, pr ocr eat i on, cont r acept i on, f ami l y r el at i onshi ps,
chi l d r ear i ng, and educat i on. . . . Per sons i n a homosexual
r el at i onshi p may seek aut onomy f or t hese pur poses, j ust as

5
The const i t ut i onal i t y of a l aw t hat pr ohi bi t ed mar r i age
f r om encompassi ng same- sex r el at i onshi ps was al so at i ssue i n
Hol l i ngswor t h v. Per r y, 133 S. Ct . 2652 ( 2013) , a case t hat t he
Supr eme Cour t ul t i mat el y deci ded on st andi ng gr ounds. Al t hough
t he pet i t i oner s at t or ney at t empt ed t o i nvoke Baker dur i ng or al
ar gument , J ust i ce Gi nsbur g i nt er j ect ed: Baker v. Nel son was
1971. The Supr eme Cour t hadn t even deci ded t hat gender - based
cl assi f i cat i ons get any ki nd of hei ght ened scr ut i ny. . . .
[ S] ame- sex i nt i mat e conduct was consi der ed cr i mi nal i n many
st at es i n 1971, so I don t t hi nk we can ext r act much i n Baker v.
Nel son. Or al Ar gument at 11: 33, Hol l i ngswor t h v. Per r y, 133 S.
Ct . 2652 ( No. 12- 144) , avai l abl e at 2013 WL 1212745.
37

het er osexual per sons do. I d. at 574. These consi der at i ons l ed
t he Cour t t o st r i ke down a Texas st at ut e t hat cr i mi nal i zed same-
sex sodomy. I d. at 563, 578- 79. The Wi ndsor Cour t based i t s
deci si on t o i nval i dat e sect i on 3 of DOMA on t he Fi f t h
Amendment s Due Pr ocess Cl ause. The Cour t concl uded t hat
sect i on 3 coul d not wi t hst and const i t ut i onal scr ut i ny because
t he pr i nci pal pur pose and t he necessar y ef f ect of [ sect i on 3]
ar e t o demean t hose per sons who ar e i n a l awf ul same- sex
mar r i age, whol i ke t he unmar r i ed same- sex coupl e i n Lawr ence
have a const i t ut i onal r i ght t o make mor al and sexual choi ces.
133 S. Ct . at 2694- 95. These cases f i r ml y posi t i on same- sex
r el at i onshi ps wi t hi n t he ambi t of t he Due Pr ocess Cl auses
pr ot ect i on.
The Cour t has al so i ssued sever al maj or equal pr ot ect i on
deci si ons si nce i t deci ded Baker . The Cour t s opi ni ons i n Cr ai g
v. Bor en, 429 U. S. 190 ( 1976) , and Fr ont i er o v. Ri char dson, 411
U. S. 677 ( 1973) , i dent i f i ed sex- based cl assi f i cat i ons as quasi -
suspect , causi ng t hem t o war r ant i nt er medi at e scr ut i ny r at her
t han r at i onal basi s r evi ew, see Cr ai g, 429 U. S. at 218
( Rehnqui st , J . , di ssent i ng) ( coi ni ng t he t er m i nt er medi at e
l evel scr ut i ny t o descr i be t he Cour t s t est ( i nt er nal quot at i on
mar ks omi t t ed) ) . Two decades l at er , i n Romer v. Evans, t he
Supr eme Cour t st r uck down a Col or ado const i t ut i onal amendment
t hat pr ohi bi t ed l egi sl at i ve, execut i ve, and j udi ci al act i on
38

ai med at pr ot ect i ng gay, l esbi an, and bi sexual i ndi vi dual s f r om
di scr i mi nat i on. 517 U. S. 620, 624, 635 ( 1996) . The Cour t
concl uded t hat t he l aw vi ol at ed t he Four t eent h Amendment s Equal
Pr ot ect i on Cl ause because i t s sheer br eadt h i s so di scont i nuous
wi t h t he r easons of f er ed f or i t t hat t he amendment seems
i nexpl i cabl e by anyt hi ng but ani mus t owar d t he cl ass i t
af f ect s, causi ng t he l aw t o l ack[ ] a r at i onal r el at i onshi p t o
l egi t i mat e st at e i nt er est s. I d. at 632. Fi nal l y, t he Supr eme
Cour t couched i t s deci si on i n Wi ndsor i n bot h due pr ocess and
equal pr ot ect i on t er ms. 133 S. Ct . at 2693, 2695. These cases
demonst r at e t hat , si nce Baker , t he Cour t has meani ngf ul l y
al t er ed t he way i t vi ews bot h sex and sexual or i ent at i on t hr ough
t he equal pr ot ect i on l ens.
I n l i ght of t he Supr eme Cour t s appar ent abandonment of
Baker and t he si gni f i cant doct r i nal devel opment s t hat occur r ed
af t er t he Cour t i ssued i t s summar y di smi ssal i n t hat case, we
decl i ne t o vi ew Baker as bi ndi ng pr ecedent and pr oceed t o t he
meat of t he Opponent s Four t eent h Amendment ar gument s.

I V.
A.
Our anal ysi s of t he Opponent s Four t eent h Amendment cl ai ms
has t wo component s. Fi r st , we ascer t ai n what l evel of
const i t ut i onal scr ut i ny appl i es: ei t her r at i onal basi s r evi ew
39

or some f or m of hei ght ened scr ut i ny, such as st r i ct scr ut i ny.
Second, we appl y t he appr opr i at e l evel of scr ut i ny t o det er mi ne
whet her t he Vi r gi ni a Mar r i age Laws pass const i t ut i onal must er .
Under bot h t he Due Pr ocess and Equal Pr ot ect i on Cl auses,
i nt er f er ence wi t h a f undament al r i ght war r ant s t he appl i cat i on
of st r i ct scr ut i ny.
6
Washi ngt on v. Gl ucksber g, 521 U. S. 702,
719- 20 ( 1997) ; Zabl ocki v. Redhai l , 434 U. S. 374, 383 ( 1978) .
We t her ef or e begi n by assessi ng whet her t he Vi r gi ni a Mar r i age
Laws i nf r i nge on a f undament al r i ght . Fundament al r i ght s spr i ng
f r om t he Four t eent h Amendment s pr ot ect i on of i ndi vi dual
l i ber t y, whi ch t he Supr eme Cour t has descr i bed as t he r i ght t o
def i ne one s own concept of exi st ence, of meani ng, of t he
uni ver se, and of t he myst er y of human l i f e. Pl anned Par ent hood
of Se. Pa. v. Casey, 505 U. S. 833, 851 ( 1992) . Thi s l i ber t y
i ncl udes t he f undament al r i ght t o mar r y. Zabl ocki , 434 U. S. at
383; Lovi ng v. Vi r gi ni a, 388 U. S. 1, 12 ( 1967) ; see Gr i swol d v.

6
The Equal Pr ot ect i on Cl ause al so di ct at es t hat some f or m
of hei ght ened scr ut i ny appl i es when a l aw di scr i mi nat es based on
a suspect or quasi - suspect cl assi f i cat i on, such as r ace or
gender . See Ci t y of Cl ebur ne v. Cl ebur ne Li vi ng Ct r . , 473 U. S.
432, 440- 41 ( 1985) ; Mass. Bd. of Ret . v. Mur gi a, 427 U. S. 307,
313- 14 ( 1976) ( per cur i am) . Thi s Cour t pr evi ousl y decl i ned t o
r ecogni ze sexual or i ent at i on as a suspect cl assi f i cat i on i n
Thomasson v. Per r y, 80 F. 3d 915, 928 ( 4t h Ci r . 1996) ( en banc) ,
and Veney v. Wyche, 293 F. 3d 726, 731- 32 ( 4t h Ci r . 2002) .
Because we concl ude t hat t he Vi r gi ni a Mar r i age Laws war r ant
st r i ct scr ut i ny due t o t hei r i nf r i ngement of t he f undament al
r i ght t o mar r y, we need not r each t he quest i on of whet her
Thomasson and Veney r emai n good l aw.
40

Connect i cut , 381 U. S. 479, 485- 86 ( 1965) ( pl aci ng t he r i ght t o
mar r y wi t hi n t he f undament al r i ght t o pr i vacy) ; see al so Ski nner
v. Okl ahoma ex r el . Wi l l i amson, 316 U. S. 535, 541 ( 1942)
( char act er i zi ng mar r i age as one of t he basi c ci vi l r i ght s of
man) ; Maynar d v. Hi l l , 125 U. S. 190, 205 ( 1888) ( cal l i ng
mar r i age t he most i mpor t ant r el at i on i n l i f e and t he
f oundat i on of t he f ami l y and of soci et y, wi t hout whi ch t her e
woul d be nei t her ci vi l i zat i on nor pr ogr ess) .
The Opponent s and Pr oponent s agr ee t hat mar r i age i s a
f undament al r i ght . They st r ongl y di sagr ee, however , r egar di ng
whet her t hat r i ght encompasses t he r i ght t o same- sex mar r i age.
The Opponent s ar gue t hat t he f undament al r i ght t o mar r y bel ongs
t o t he i ndi vi dual , who enj oys t he r i ght t o mar r y t he per son of
hi s or her choi ce. By cont r ast , t he Pr oponent s poi nt out t hat ,
t r adi t i onal l y, st at es have sanct i oned onl y man- woman mar r i ages.
They cont end t hat , i n l i ght of t hi s hi st or y, t he r i ght t o mar r y
does not i ncl ude a r i ght t o same- sex mar r i age.
Rel yi ng on Washi ngt on v. Gl ucksber g, t he Pr oponent s aver
t hat t he di st r i ct cour t er r ed by not r equi r i ng a car ef ul
descr i pt i on of t he asser t ed f undament al l i ber t y i nt er est , 521
U. S. at 721 ( i nt er nal quot at i on mar ks omi t t ed) , whi ch t hey
char act er i ze as t he r i ght t o mar r i age t o anot her per son of t he
same sex, not t he r i ght t o mar r y. I n Gl ucksber g, t he Supr eme
Cour t descr i bed t he r i ght at i ssue as a r i ght t o commi t sui ci de
41

wi t h anot her s assi st ance. I d. at 724. The Cour t decl i ned t o
cat egor i ze t hi s r i ght as a new f undament al r i ght because i t was
not , obj ect i vel y, deepl y r oot ed i n t hi s Nat i on s hi st or y and
t r adi t i on. See i d. at 720- 21 ( quot i ng Moor e v. Ci t y of E.
Cl evel and, 431 U. S. 494, 503 ( 1977) ) ( i nt er nal quot at i on mar ks
omi t t ed) . The Pr oponent s ur ge us t o r ej ect t he r i ght t o same-
sex mar r i age f or t he same r eason.
We do not di sput e t hat st at es have r ef used t o per mi t same-
sex mar r i ages f or most of our count r y s hi st or y. However , t hi s
f act i s i r r el evant i n t hi s case because Gl ucksber g s anal ysi s
appl i es onl y when cour t s consi der whet her t o r ecogni ze new
f undament al r i ght s. See i d. at 720, 727 & n. 19 ( i dent i f yi ng t he
above pr ocess as a way of expand[ i ng] t he concept of
subst ant i ve due pr ocess beyond est abl i shed f undament al r i ght s,
such as t he r i ght t o mar r y ( quot i ng Col l i ns v. Ci t y of Har ker
Hei ght s, 503 U. S. 115, 125 ( 1992) ) ( i nt er nal quot at i on mar ks
omi t t ed) ) . Because we concl ude t hat t he f undament al r i ght t o
mar r y encompasses t he r i ght t o same- sex mar r i age, Gl ucksber g s
anal ysi s i s i nappl i cabl e her e.
Over t he decades, t he Supr eme Cour t has demonst r at ed t hat
t he r i ght t o mar r y i s an expansi ve l i ber t y i nt er est t hat may
st r et ch t o accommodat e changi ng soci et al nor ms. Per haps most
not abl y, i n Lovi ng v. Vi r gi ni a, t he Supr eme Cour t i nval i dat ed a
Vi r gi ni a l aw t hat pr ohi bi t ed whi t e i ndi vi dual s f r om mar r yi ng
42

i ndi vi dual s of ot her r aces. 388 U. S. at 4. The Cour t expl ai ned
t hat [ t ] he f r eedom t o mar r y has l ong been r ecogni zed as one of
t he vi t al per sonal r i ght s essent i al t o t he or der l y pur sui t of
happi ness by f r ee men and t hat no val i d basi s j ust i f i ed t he
Vi r gi ni a l aw s i nf r i ngement of t hat r i ght . I d. at 12.
Subsequent l y, i n Zabl ocki v. Redhai l , t he Supr eme Cour t
consi der ed t he const i t ut i onal i t y of a Wi sconsi n st at ut e t hat
r equi r ed peopl e obl i gat ed t o pay chi l d suppor t t o obt ai n a cour t
or der gr ant i ng per mi ssi on t o mar r y bef or e t hey coul d r ecei ve a
mar r i age l i cense. 434 U. S. at 375, 383- 84. The st at ut e
speci f i ed t hat a cour t shoul d gr ant per mi ssi on onl y t o
appl i cant s who pr oved t hat t hey had compl i ed wi t h t hei r chi l d
suppor t obl i gat i ons and demonst r at ed t hat t hei r chi l dr en wer e
not l i kel y t o become publ i c char ges. I d. at 375 ( i nt er nal
quot at i on mar ks omi t t ed) . The Cour t hel d t hat t he st at ut e
i mper mi ssi bl y i nf r i nged on t he r i ght t o mar r y. See i d. at 390-
91. Fi nal l y, i n Tur ner v. Saf l ey, t he Cour t det er mi ned t hat a
Mi ssour i r egul at i on t hat gener al l y pr ohi bi t ed pr i son i nmat es
f r om mar r yi ng was an unconst i t ut i onal br each of t he r i ght t o
mar r y. 482 U. S. 78, 82, 94- 99 ( 1987) .
These cases do not def i ne t he r i ght s i n quest i on as t he
r i ght t o i nt er r aci al mar r i age, t he r i ght of peopl e owi ng chi l d
suppor t t o mar r y, and t he r i ght of pr i son i nmat es t o mar r y.
I nst ead, t hey speak of a br oad r i ght t o mar r y t hat i s not
43

ci r cumscr i bed based on t he char act er i st i cs of t he i ndi vi dual s
seeki ng t o exer ci se t hat r i ght . The Supr eme Cour t s
unwi l l i ngness t o const r ai n t he r i ght t o mar r y t o cer t ai n
subspeci es of mar r i age meshes wi t h i t s concl usi on t hat t he r i ght
t o mar r y i s a mat t er of f r eedom of choi ce, Zabl ocki , 434 U. S.
at 387, t hat r esi des wi t h t he i ndi vi dual , Lovi ng, 388 U. S. at
12. I f cour t s l i mi t ed t he r i ght t o mar r y t o cer t ai n coupl i ngs,
t hey woul d ef f ect i vel y cr eat e a l i st of l egal l y pr ef er r ed
spouses, r ender i ng t he choi ce of whom t o mar r y a hol l ow choi ce
i ndeed.
The Pr oponent s poi nt out t hat Lovi ng, Zabl ocki , and Tur ner
each i nvol ved opposi t e- sex coupl es. They cont end t hat , because
t he coupl es i n t hose cases chose t o ent er opposi t e- sex
mar r i ages, we cannot use t hemt o concl ude t hat t he Supr eme Cour t
woul d gr ant t he same l evel of const i t ut i onal pr ot ect i on t o t he
choi ce t o mar r y a per son of t he same sex. However , t he Supr eme
Cour t s deci si ons i n Lawr ence and Wi ndsor suggest ot her wi se. I n
Lawr ence, t he Cour t expr essl y r ef used t o nar r owl y def i ne t he
r i ght at i ssue as t he r i ght of homosexual s t o engage i n
sodomy, concl udi ng t hat doi ng so woul d const i t ut e a f ai l ur e t o
appr eci at e t he ext ent of t he l i ber t y at st ake. 539 U. S. at
566- 67. J ust as i t has done i n t he r i ght - t o- mar r y ar ena, t he
Cour t i dent i f i ed t he r i ght at i ssue i n Lawr ence as a mat t er of
choi ce, expl ai ni ng t hat gay and l esbi an i ndi vi dual sl i ke al l
44

peopl eenj oy t he r i ght t o make deci si ons r egar di ng t hei r
per sonal r el at i onshi ps. I d. at 567. As we not e above, t he
Cour t r ei t er at ed t hi s t heme i n Wi ndsor , i n whi ch i t based i t s
concl usi on t hat sect i on 3 of DOMA was unconst i t ut i onal , i n par t ,
on t hat pr ovi si on s di sr espect f or t he mor al and sexual
choi ces t hat accompany a same- sex coupl e s deci si on t o mar r y.
133 S. Ct . at 2694. Lawr ence and Wi ndsor i ndi cat e t hat t he
choi ces t hat i ndi vi dual s make i n t he cont ext of same- sex
r el at i onshi ps enj oy t he same const i t ut i onal pr ot ect i on as t he
choi ces accompanyi ng opposi t e- sex r el at i onshi ps. We t her ef or e
have no r eason t o suspect t hat t he Supr eme Cour t woul d accor d
t he choi ce t o mar r y someone of t he same sex any l ess r espect
t han t he choi ce t o mar r y an opposi t e- sex i ndi vi dual who i s of a
di f f er ent r ace, owes chi l d suppor t , or i s i mpr i soned.
Accor di ngl y, we decl i ne t he Pr oponent s i nvi t at i on t o
char act er i ze t he r i ght at i ssue i n t hi s case as t he r i ght t o
same- sex mar r i age r at her t han si mpl y t he r i ght t o mar r y.
Of cour se, [ b] y r eaf f i r mi ng t he f undament al char act er of
t he r i ght t o mar r y, we do not mean t o suggest t hat ever y st at e
r egul at i on whi ch r el at es i n any way t o t he i nci dent s of or
pr er equi si t es f or mar r i age must be subj ect ed t o r i gor ous
scr ut i ny. Zabl ocki , 434 U. S. at 386. St r i ct scr ut i ny appl i es
onl y when l aws si gni f i cant l y i nt er f er e wi t h a f undament al
r i ght . See i d. at 386- 87. The Vi r gi ni a Mar r i age Laws
45

unquest i onabl y sat i sf y t hi s r equi r ement : t hey i mpede t he r i ght
t o mar r y by pr event i ng same- sex coupl es f r om mar r yi ng and
nul l i f yi ng t he l egal i mpor t of t hei r out - of - st at e mar r i ages.
St r i ct scr ut i ny t her ef or e appl i es i n t hi s case.

B.
Under st r i ct scr ut i ny, a l aw may be j ust i f i ed onl y by
compel l i ng st at e i nt er est s, and must be nar r owl y dr awn t o
expr ess onl y t hose i nt er est s. Car ey v. Popul at i on Ser vs.
I nt l , 431 U. S. 678, 686 ( 1977) . The Pr oponent s bear t he bur den
of demonst r at i ng t hat t he Vi r gi ni a Mar r i age Laws sat i sf y t hi s
st andar d, see Fi sher v. Uni v. of Tex. at Aust i n, 133 S. Ct .
2411, 2420 ( 2013) , and t hey must r el y on t he l aws act ual
pur pose[ s] r at her t han hypot het i cal j ust i f i cat i ons, see Shaw v.
Hunt , 517 U. S. 899, 908 n. 4 ( 1996) . The Pr oponent s
7
cont end t hat
f i ve compel l i ng i nt er est s under gi r d t he Vi r gi ni a Mar r i age Laws:
( 1) Vi r gi ni a s f eder al i sm- based i nt er est i n mai nt ai ni ng cont r ol
over t he def i ni t i on of mar r i age wi t hi n i t s bor der s, ( 2) t he
hi st or y and t r adi t i on of opposi t e- sex mar r i age, ( 3) pr ot ect i ng
t he i nst i t ut i on of mar r i age, ( 4) encour agi ng r esponsi bl e

7
Al t hough some of t hese ar gument s appear onl y i n McQui gg s
br i ef s, we at t r i but e t hem t o t he Pr oponent s because Schaef er
r eser ved t he r i ght t o adopt and i ncor por at e i n whol e or i n
par t McQui gg s di scussi on of t he r at i onal es under l yi ng t he
Vi r gi ni a Mar r i age Laws.
46

pr ocr eat i on, and ( 5) pr omot i ng t he opt i mal chi l dr ear i ng
envi r onment . We di scuss each of t hese i nt er est s i n t ur n.

1. Feder al i sm
The Const i t ut i on does not gr ant t he f eder al gover nment any
aut hor i t y over domest i c r el at i ons mat t er s, such as mar r i age.
Accor di ngl y, t hr oughout our count r y s hi st or y, st at es have
enj oyed t he f r eedom t o def i ne and r egul at e mar r i age as t hey see
f i t . See Wi ndsor , 133 S. Ct . at 2691- 92. St at es cont r ol over
mar r i age l aws wi t hi n t hei r bor der s has r esul t ed i n some
var i at i on among st at es r equi r ement s. For exampl e, West
Vi r gi ni a pr ohi bi t s f i r st cousi ns f r om mar r yi ng, W. Va. Code
48- 2- 302, but t he r emai ni ng st at es i n t hi s Ci r cui t al l ow f i r st
cousi n mar r i age, see Md. Code Ann. , Fam. Law 2- 202; N. C. Gen.
St at . 51- 3; S. C. Code Ann. 20- 1- 10; Va. Code Ann. 20- 38. 1.
St at es power t o def i ne and r egul at e mar r i age al so account s f or
t hei r di f f er i ng t r eat ment of same- sex coupl es.
The Wi ndsor deci si on r est ed i n par t on t he Supr eme Cour t s
r espect f or st at es supr emacy i n t he domest i c r el at i ons spher e.
8

8
I n Wi ndsor , t he Cour t di d not l abel t he t ype of
const i t ut i onal scr ut i ny i t appl i ed, l eavi ng us unsur e how t he
Cour t woul d f i t i t s f eder al i sm di scussi on wi t hi n a t r adi t i onal
hei ght ened scr ut i ny or r at i onal basi s anal ysi s. The l ower
cour t s have t aken di f f er i ng appr oaches, wi t h some di scussi ng
Wi ndsor and f eder al i sm as a t hr eshol d mat t er , see, e. g. , Wol f ,
2014 WL 2558444, at *8- 12; Bi shop v. Uni t ed St at es ex r el .

47

The Cour t r ecogni zed t hat sect i on 3 of DOMA upset t he st at us quo
by r obbi ng st at es of t hei r abi l i t y t o def i ne mar r i age. Al t hough
st at es coul d l egal i ze same- sex mar r i age, t hey coul d not ensur e
t hat t he i nci dent s, benef i t s, and obl i gat i ons of mar r i age woul d
be uni f or m wi t hi n t hei r bor der s. See Wi ndsor , 133 S. Ct . at
2692. However , t he Cour t di d not l ament t hat sect i on 3 had
usur ped st at es aut hor i t y over mar r i age due t o i t s desi r e t o
saf eguar d f eder al i sm. I d. ( [ T] he St at e s power i n def i ni ng t he
mar i t al r el at i on i s of cent r al r el evance i n t hi s case qui t e
apar t f r om t he pr i nci pl es of f eder al i sm. ) . I t s concer n spr ung
f r om sect i on 3 s cr eat i on of t wo cl asses of mar r i ed coupl es
wi t hi n st at es t hat had l egal i zed same- sex mar r i age: opposi t e-
sex coupl es, whose mar r i ages t he f eder al gover nment r ecogni zed,
and same- sex coupl es, whose mar r i ages t he f eder al gover nment
i gnor ed. I d. The r esul t i ng i nj ur y t o same- sex coupl es ser ved
as t he f oundat i on f or t he Cour t s concl usi on t hat sect i on 3
vi ol at ed t he Fi f t h Amendment s Due Pr ocess Cl ause. I d. at 2693.

Hol der , 962 F. Supp. 2d 1252, 1277- 79 ( N. D. Okl a. 2014) ; Ki t chen
v. Her ber t , 961 F. Supp. 2d 1181, 1193- 94 ( D. Ut ah 2013) , and
ot her ssuch as t he di st r i ct cour t i n t hi s caseconsi der i ng
f eder al i sm as a st at e i nt er est under l yi ng t he same- sex mar r i age
bans at i ssue, see, e. g. , Lat t a, 2014 WL 1909999, at *25- 26;
DeBoer , 973 F. Supp. 2d at 773- 75; Bost i c, 970 F. Supp. 2d at
475- 77. Al t hough we f ol l ow t he di st r i ct cour t s l ead and
si t uat e our f eder al i sm di scussi on wi t hi n our appl i cat i on of
st r i ct scr ut i ny, our concl usi on woul d r emai n t he same even i f we
sel ect ed an al t er nat e or gani zat i onal appr oach.
48

Ci t i ng Wi ndsor , t he Pr oponent s ur ge us t o vi ew Vi r gi ni a s
f eder al i sm- based i nt er est i n def i ni ng mar r i age as a sui t abl e
j ust i f i cat i on f or t he Vi r gi ni a Mar r i age Laws. However , Wi ndsor
i s act ual l y det r i ment al t o t hei r posi t i on. Al t hough t he Cour t
emphasi zed st at es t r adi t i onal aut hor i t y over mar r i age, i t
acknowl edged t hat [ s] t at e l aws def i ni ng and r egul at i ng
mar r i age, of cour se, must r espect t he const i t ut i onal r i ght s of
per sons. I d. at 2691 ( ci t i ng Lovi ng, 388 U. S. 1) ; see al so i d.
at 2692 ( The St at es i nt er est i n def i ni ng and r egul at i ng t he
mar i t al r el at i on[ ] [ i s] subj ect t o const i t ut i onal guar ant ees. ) .
Wi ndsor does not t each us t hat f eder al i sm pr i nci pl es can j ust i f y
depr i vi ng i ndi vi dual s of t hei r const i t ut i onal r i ght s; i t
r ei t er at es Lovi ng s admoni t i on t hat t he st at es must exer ci se
t hei r aut hor i t y wi t hout t r ampl i ng const i t ut i onal guar ant ees.
Vi r gi ni a s f eder al i sm- based i nt er est i n def i ni ng mar r i age
t her ef or e cannot j ust i f y i t s encr oachment on t he f undament al
r i ght t o mar r y.
The Supr eme Cour t s r ecent deci si on i n Schuet t e v.
Coal i t i on t o Def end Af f i r mat i ve Act i on, 134 S. Ct . 1623 ( 2014) ,
does not change t he concl usi on t hat Wi ndsor di ct at es. I n
Schuet t e, t he Cour t r ef used t o st r i ke down a vot er - appr oved
st at e const i t ut i onal amendment t hat bar r ed publ i c uni ver si t i es
i n Mi chi gan f r om usi ng r ace- based pr ef er ences as par t of t hei r
admi ssi ons pr ocesses. I d. at 1629, 1638. The Cour t decl i ned t o
49

cl osel y scr ut i ni ze t he amendment because i t was not used, or
. . . l i kel y t o be used, t o encour age i nf l i ct i on of i nj ur y by
r eason of r ace. See i d. at 1638. I nst ead, t he Cour t dwel l ed
on t he need t o r espect t he vot er s pol i cy choi ce, concl udi ng
t hat [ i ] t i s demeani ng t o t he democr at i c pr ocess t o pr esume
t hat t he vot er s ar e not capabl e of deci di ng an i ssue of t hi s
sensi t i vi t y on decent and r at i onal gr ounds and t he j udi ci ar y s
r ol e was not t o di sempower t he vot er s f r om choosi ng whi ch pat h
t o f ol l ow. I d. at 1635- 38.
The Pr oponent s emphasi ze t hat Vi r gi ni a s vot er s appr oved
t he Mar shal l / Newman Amendment . Li ke t he Mi chi gan amendment at
i ssue i n Schuet t e, t he Mar shal l / Newman Amendment i s t he
codi f i cat i on of Vi r gi ni ans pol i cy choi ce i n a l egal ar ena t hat
i s f r aught wi t h i nt ense soci al and pol i t i cal debat e. Amer i cans
abi l i t y t o speak wi t h t hei r vot es i s essent i al t o our democr acy.
But t he peopl e s wi l l i s not an i ndependent compel l i ng i nt er est
t hat war r ant s depr i vi ng same- sex coupl es of t hei r f undament al
r i ght t o mar r y.
The ver y pur pose of a Bi l l of Ri ght s
9
was t o wi t hdr aw
cer t ai n subj ect s f r om t he vi ci ssi t udes of pol i t i cal

9
Of cour se, t he Four t eent h Amendment i s not par t of t he
Bi l l of Ri ght s. Thi s excer pt f r om Bar net t e i s never t hel ess
r el evant her e due t o t he Four t eent h Amendment s si mi l ar goal of
pr ot ect i ng unpopul ar mi nor i t i es f r om gover nment over r eachi ng,
see Regent s of Uni v. of Cal . v. Bakke, 438 U. S. 265, 293 ( 1978) ,
and i t s r ol e i n r ender i ng t he Bi l l of Ri ght s appl i cabl e t o t he
st at es, see Duncan v. Loui si ana, 391 U. S. 145, 147- 48 ( 1968) .
50

cont r over sy, t o pl ace t hem beyond t he r each of
maj or i t i es and of f i ci al s and t o est abl i sh t hem as
l egal pr i nci pl es t o be appl i ed by t he cour t s. One s
r i ght t o l i f e, l i ber t y, and pr oper t y, t o f r ee speech,
a f r ee pr ess, f r eedom of wor shi p and assembl y, and
ot her f undament al r i ght s may not be submi t t ed t o vot e;
t hey depend on t he out come of no el ect i ons.

W. Va. St at e Bd. of Educ. v. Bar net t e, 319 U. S. 624, 638 ( 1943)
( f oot not e added) ; see al so Romer , 517 U. S. at 623 ( i nval i dat i ng
a vot er - appr oved amendment t o Col or ado s const i t ut i on) ; Lucas v.
For t y- Four t h Gen. Assembl y of Col o. , 377 U. S. 713, 736- 37 ( 1964)
( A ci t i zen s const i t ut i onal r i ght s can har dl y be i nf r i nged
si mpl y because a maj or i t y of t he peopl e choose t hat i t be. ) .
Accor di ngl y, nei t her Vi r gi ni a s f eder al i sm- based i nt er est i n
def i ni ng mar r i age nor our r espect f or t he democr at i c pr ocess
t hat codi f i ed t hat def i ni t i on can excuse t he Vi r gi ni a Mar r i age
Laws i nf r i ngement of t he r i ght t o mar r y.

2. Hi st or y and Tr adi t i on
The Pr oponent s al so poi nt t o t he hi st or y and t r adi t i on of
opposi t e- sex mar r i age as a compel l i ng i nt er est t hat suppor t s t he
Vi r gi ni a Mar r i age Laws. The Supr eme Cour t has made i t cl ear
t hat , even under r at i onal basi s r evi ew, t he [ a] nci ent l i neage
of a l egal concept does not gi ve i t i mmuni t y f r om at t ack.
Hel l er v. Doe ex r el . Doe, 509 U. S. 312, 326 ( 1993) . The
cl osel y l i nked i nt er est of pr omot i ng mor al pr i nci pl es i s
si mi l ar l y i nf i r m i n l i ght of Lawr ence: t he f act t hat t he
51

gover ni ng maj or i t y i n a St at e has t r adi t i onal l y vi ewed a
par t i cul ar pr act i ce as i mmor al i s not a suf f i ci ent r eason f or
uphol di ng a l aw pr ohi bi t i ng t he pr act i ce; nei t her hi st or y nor
t r adi t i on coul d save a l aw pr ohi bi t i ng mi scegenat i on f r om
const i t ut i onal at t ack. 539 U. S. at 577- 78 ( quot i ng Bower s v.
Har dwi ck, 478 U. S. 186, 216 ( 1986) ( St evens, J . , di ssent i ng) )
( i nt er nal quot at i on mar ks omi t t ed) ; see al so i d. at 601 ( Scal i a,
J . , di ssent i ng) ( But pr eser vi ng t he t r adi t i onal i nst i t ut i on of
mar r i age i s j ust a ki nder way of descr i bi ng t he St at e s mor al
di sappr oval of same- sex coupl es. ) . Pr eser vi ng t he hi st or i cal
and t r adi t i onal st at us quo i s t her ef or e not a compel l i ng
i nt er est t hat j ust i f i es t he Vi r gi ni a Mar r i age Laws.

3. Saf eguar di ng t he I nst i t ut i on of Mar r i age
I n addi t i on t o ar gui ng t hat hi st or y and t r adi t i on ar e
compel l i ng i nt er est s i n t hei r own r i ght s, t he Pr oponent s war n
t hat devi at i ng f r om t he t r adi t i on of opposi t e- sex mar r i age wi l l
dest abi l i ze t he i nst i t ut i on of mar r i age. The Pr oponent s suggest
t hat l egal i zi ng same- sex mar r i age wi l l sever t he l i nk bet ween
mar r i age and pr ocr eat i on: t hey ar gue t hat , i f same- sex coupl es
who cannot pr ocr eat e nat ur al l yar e al l owed t o mar r y, t he st at e
wi l l sanct i on t he i dea t hat mar r i age i s a vehi cl e f or adul t s
emot i onal f ul f i l l ment , not si mpl y a f r amewor k f or par ent hood.
Accor di ng t o t he Pr oponent s, i f adul t s ar e t he f ocal poi nt of
52

mar r i age, t hen no l ogi cal gr ounds r ei nf or ce st abi l i zi ng nor ms
l i ke sexual excl usi vi t y, per manence, and monogamy, whi ch exi st
t o benef i t chi l dr en.
We r ecogni ze t hat , i n some cases, we owe subst ant i al
def er ence t o t he pr edi ct i ve j udgment s of t he Vi r gi ni a Gener al
Assembl y, f or whom t he Pr oponent s pur por t t o speak. Tur ner
Br oad. Sys. , I nc. v. FCC, 520 U. S. 180, 195 ( 1997) . However ,
even i f we vi ew t he Pr oponent s t heor i es t hr ough r ose- col or ed
gl asses, we concl ude t hat t hey ar e unf ounded f or t wo key
r easons. Fi r st , t he Supr eme Cour t r ej ect ed t he vi ew t hat
mar r i age i s about onl y pr ocr eat i on i n Gr i swol d v. Connect i cut ,
i n whi ch i t uphel d mar r i ed coupl es r i ght not t o pr ocr eat e and
ar t i cul at ed a vi ew of mar r i age t hat has not hi ng t o do wi t h
chi l dr en:
Mar r i age i s a comi ng t oget her f or bet t er or f or wor se,
hopef ul l y endur i ng, and i nt i mat e t o t he degr ee of
bei ng sacr ed. I t i s an associ at i on t hat pr omot es a way
of l i f e, not causes; a har mony i n l i vi ng, not
pol i t i cal f ai t hs; a bi l at er al l oyal t y, not commer ci al
or soci al pr oj ect s. Yet i t i s an associ at i on f or as
nobl e a pur pose as any i nvol ved i n our pr i or
deci si ons.

381 U. S. at 485- 86; see al so Tur ner , 482 U. S. at 95- 96
( descr i bi ng many non- pr ocr eat i ve pur poses of mar r i age) . The
f act t hat mar r i age s st abi l i zi ng nor ms have endur ed i n t he f i ve
decades si nce t he Supr eme Cour t made t hi s pr onouncement weakens
53

t he ar gument t hat coupl es r emai n i n monogamous mar r i ages onl y
f or t he sake of t hei r of f spr i ng.
Second, t he pr i mar y suppor t t hat t he Pr oponent s of f er f or
t hei r t heor y i s t he l egacy of a whol l y unr el at ed l egal change t o
mar r i age: no- f aul t di vor ce. Al t hough no- f aul t di vor ce
cer t ai nl y al t er ed t he r eal i t i es of mar r i ed l i f e by maki ng i t
easi er f or coupl es t o end t hei r r el at i onshi ps, we have no r eason
t o t hi nk t hat l egal i zi ng same- sex mar r i age wi l l have a si mi l ar
dest abi l i zi ng ef f ect . I n f act , i t i s mor e l ogi cal t o t hi nk t hat
same- sex coupl es want access t o mar r i age so t hat t hey can t ake
advant age of i t s hal l mar ks, i ncl udi ng f ai t hf ul ness and
per manence, and t hat al l owi ng l ovi ng, commi t t ed same- sex coupl es
t o mar r y and r ecogni zi ng t hei r out - of - st at e mar r i ages wi l l
st r engt hen t he i nst i t ut i on of mar r i age. We t her ef or e r ej ect t he
Pr oponent s concer ns.

4. Responsi bl e Pr ocr eat i on
Next , t he Pr oponent s cont end t hat t he Vi r gi ni a Mar r i age
Laws di f f er ent i at i on bet ween opposi t e- sex and same- sex coupl es
st ems f r om t he f act t hat uni nt ended pr egnanci es cannot r esul t
f r om same- sex uni ons. By sanct i oni ng onl y opposi t e- sex
mar r i ages, t he Vi r gi ni a Mar r i age Laws pr ovi d[ e] st abi l i t y t o
t he t ypes of r el at i onshi ps t hat r esul t i n unpl anned pr egnanci es,
t her eby avoi di ng or di mi ni shi ng t he negat i ve out comes of t en
54

associ at ed wi t h uni nt ended chi l dr en. The Pr oponent s al l ege
t hat chi l dr en bor n t o unwed par ent s f ace a si gni f i cant r i sk of
bei ng r ai sed i n unst abl e f ami l i es, whi ch i s har mf ul t o t hei r
devel opment . Vi r gi ni a, of cour se, has a dut y of t he hi ghest
or der t o pr ot ect t he i nt er est s of mi nor chi l dr en, par t i cul ar l y
t hose of t ender year s. Pal mor e v. Si dot i , 466 U. S. 429, 433
( 1984) . However , t he Vi r gi ni a Mar r i age Laws ar e not
appr opr i at el y t ai l or ed t o f ur t her t hi s i nt er est .
I f Vi r gi ni a sought t o ensur e r esponsi bl e pr ocr eat i on vi a
t he Vi r gi ni a Mar r i age Laws, t he l aws ar e woef ul l y
under i ncl usi ve. Same- sex coupl es ar e not t he onl y cat egor y of
coupl es who cannot r epr oduce acci dent al l y. For exampl e,
opposi t e- sex coupl es cannot pr ocr eat e uni nt ent i onal l y i f t hey
i ncl ude a post - menopausal woman or an i ndi vi dual wi t h a medi cal
condi t i on t hat pr event s unassi st ed concept i on.
The Pr oponent s at t empt t o downpl ay t he si mi l ar i t y bet ween
same- sex coupl es and i nf er t i l e opposi t e- sex coupl es i n t hr ee
ways. Fi r st , t hey poi nt out t hat st er i l e i ndi vi dual s coul d
r emedy t hei r f er t i l i t y t hr ough f ut ur e medi cal advances. Thi s
pot ent i al i t y, however , does not expl ai n why Vi r gi ni a shoul d
t r eat same- sex and i nf er t i l e opposi t e- sex coupl es di f f er ent l y
dur i ng t he cour se of t he l at t er gr oup s i nf er t i l i t y. Second,
t he Pr oponent s posi t t hat , even i f one member of a man- woman
coupl e i s st er i l e, t he ot her member may not be. They suggest
55

t hat , wi t hout mar r i age s monogamy mandat e, t hi s f er t i l e
i ndi vi dual i s mor e l i kel y t o have an uni nt ended chi l d wi t h a
t hi r d par t y. They cont end t hat , due t o t hi s possi bi l i t y, even
opposi t e- sex coupl es who cannot pr ocr eat e need mar r i age t o
channel t hei r pr ocr eat i ve act i vi t y i n a way t hat same- sex
coupl es do not . The Pr oponent s ar gument assumes t hat
i ndi vi dual s i n same- sex r el at i onshi ps never have opposi t e- sex
sexual par t ner s, whi ch i s si mpl y not t he case. Thi r d, t he
Pr oponent s i mpl y t hat , by mar r yi ng, i nf er t i l e opposi t e- sex
coupl es set a posi t i ve exampl e f or coupl es who can have
uni nt ended chi l dr en, t her eby encour agi ng t hem t o mar r y. We see
no r eason why commi t t ed same- sex coupl es cannot ser ve as si mi l ar
r ol e model s. We t her ef or e r ej ect t he Pr oponent s at t empt s t o
di f f er ent i at e same- sex coupl es f r om ot her coupl es who cannot
pr ocr eat e acci dent al l y. Because same- sex coupl es and i nf er t i l e
opposi t e- sex coupl es ar e si mi l ar l y si t uat ed, t he Equal
Pr ot ect i on Cl ause counsel s agai nst t r eat i ng t hese gr oups
di f f er ent l y. See Ci t y of Cl ebur ne, 473 U. S. at 439 ( expl ai ni ng
t hat t he Equal Pr ot ect i on Cl ause i s essent i al l y a di r ect i on
t hat al l per sons si mi l ar l y si t uat ed shoul d be t r eat ed al i ke) .
Due t o t he Vi r gi ni a Mar r i age Laws under i ncl usi vi t y, t hi s
case r esembl es Ci t y of Cl ebur ne v. Cl ebur ne Li vi ng Cent er , I nc.
I n Ci t y of Cl ebur ne, t he Supr eme Cour t st r uck down a ci t y l aw
t hat r equi r ed gr oup homes f or t he i nt el l ect ual l y di sabl ed t o
56

obt ai n a speci al use per mi t . I d. at 447- 50. The ci t y di d not
i mpose t he same r equi r ement on si mi l ar st r uct ur es, such as
apar t ment compl exes and nur si ng homes. I d. at 447. The Cour t
det er mi ned t hat t he per mi t r equi r ement was so under i ncl usi ve
t hat t he ci t y s mot i vat i on must have r est [ ed] on an i r r at i onal
pr ej udi ce, r ender i ng t he l aw unconst i t ut i onal . I d. at 450. I n
l i ght of t he Vi r gi ni a Mar r i age Laws ext r eme under i ncl usi vi t y,
we ar e f or ced t o dr aw t he same concl usi on i n t hi s case.
The Pr oponent s r esponsi bl e pr ocr eat i on ar gument f al t er s
f or anot her r eason as wel l . St r i ct scr ut i ny r equi r es t hat a
st at e s means f ur t her i t s compel l i ng i nt er est . See Shaw, 517
U. S. at 915 ( Al t hough we have not al ways pr ovi ded pr eci se
gui dance on how cl osel y t he means . . . must ser ve t he end ( t he
j ust i f i cat i on or compel l i ng i nt er est ) , we have al ways expect ed
t hat t he l egi sl at i ve act i on woul d subst ant i al l y addr ess, i f not
achi eve, t he avowed pur pose. ) . Pr ohi bi t i ng same- sex coupl es
f r om mar r yi ng and i gnor i ng t hei r out - of - st at e mar r i ages does not
ser ve Vi r gi ni a s goal of pr event i ng out - of - wedl ock bi r t hs.
Al t hough same- sex coupl es cannot pr ocr eat e acci dent al l y, t hey
can and do have chi l dr en vi a ot her met hods. Accor di ng t o an
ami cus br i ef f i l ed by Dr . Gar y J . Gat es, as of t he 2010 U. S.
Census, mor e t han 2500 same- sex coupl es wer e r ai si ng mor e t han
4000 chi l dr en under t he age of ei ght een i n Vi r gi ni a. The
57

Vi r gi ni a Mar r i age Laws t her ef or e i ncr ease t he number of chi l dr en
r ai sed by unmar r i ed par ent s.
The Pr oponent s acknowl edge t hat same- sex coupl es become
par ent s. They cont end, however , t hat t he st at e has no i nt er est
i n channel i ng same- sex coupl es pr ocr eat i ve act i vi t i es i nt o
mar r i age because same- sex coupl es br i ng chi l dr en i nt o t hei r
r el at i onshi p[ s] onl y t hr ough i nt ent i onal choi ce and pr e- pl anned
act i on. Accor di ngl y, [ t ] hose coupl es nei t her advance nor
t hr eat en soci et y s publ i c pur pose f or mar r i agest abi l i zi ng
par ent al r el at i onshi ps f or t he benef i t of chi l dr eni n t he same
manner , or t o t he same degr ee, t hat sexual r el at i onshi ps bet ween
men and women do.
I n suppor t of t hi s ar gument , t he Pr oponent s i nvoke t he
Supr eme Cour t s deci si on i n J ohnson v. Robi son, 415 U. S. 361
( 1974) . J ohnson concer ned educat i onal benef i t s t hat t he f eder al
gover nment gr ant ed t o mi l i t ar y vet er ans who ser ved on act i ve
dut y. I d. at 363. The gover nment pr ovi ded t hese benef i t s t o
encour age enl i st ment and make mi l i t ar y ser vi ce mor e pal at abl e t o
exi st i ng ser vi cemember s. I d. at 382- 83. A consci ent i ous
obj ect or who r ef used t o ser ve i n t he mi l i t ar y f or r el i gi ous
r easonsbr ought sui t , cont endi ng t hat t he gover nment act ed
unconst i t ut i onal l y by gr ant i ng benef i t s t o vet er ans but not
consci ent i ous obj ect or s. I d. at 363- 64. The Cour t expl ai ned
t hat , [ w] hen, as i n t hi s case, t he i ncl usi on of one gr oup
58

pr omot es a l egi t i mat e gover nment al pur pose, and t he addi t i on of
ot her gr oups woul d not , we cannot say t hat t he st at ut e s
cl assi f i cat i on of benef i ci ar i es and nonbenef i ci ar i es i s
i nvi di ousl y di scr i mi nat or y. I d. at 383. Because of f er i ng
educat i onal benef i t s t o consci ent i ous obj ect or s woul d not
i ncent i vi ze mi l i t ar y ser vi ce, t he f eder al gover nment s l i ne-
dr awi ng was const i t ut i onal . J ohnson, 415 U. S. at 382- 83. The
Pr oponent s cl ai m t hat t r eat i ng opposi t e- sex coupl es di f f er ent l y
f r om same- sex coupl es i s equal l y j ust i f i ed because t he t wo
gr oups ar e not si mi l ar l y si t uat ed wi t h r espect t o t hei r
pr ocr eat i ve pot ent i al .
J ohnson appl i ed r at i onal basi s r evi ew, i d. at 374- 75, so we
st r ongl y doubt i t s appl i cabi l i t y t o our st r i ct scr ut i ny
anal ysi s. I n any event , we can easi l y di st i ngui sh J ohnson f r om
t he i nst ant case. I n J ohnson, of f er i ng educat i onal benef i t s t o
vet er ans who ser ved on act i ve dut y pr omot ed t he gover nment s
goal of maki ng mi l i t ar y ser vi ce mor e at t r act i ve. Ext endi ng
t hose benef i t s t o consci ent i ous obj ect or s, whose r el i gi ous
bel i ef s pr ecl uded mi l i t ar y ser vi ce, di d not f ur t her t hat
obj ect i ve. By cont r ast , a st abl e mar i t al r el at i onshi p i s
at t r act i ve r egar dl ess of a coupl e s pr ocr eat i ve abi l i t y.
Al l owi ng i nf er t i l e opposi t e- sex coupl es t o mar r y does not hi ng t o
f ur t her t he gover nment s goal of channel i ng pr ocr eat i ve conduct
i nt o mar r i age. Thus, excl udi ng same- sex coupl es f r om mar r i age
59

due t o t hei r i nabi l i t y t o have uni nt ended chi l dr en makes l i t t l e
sense. J ohnson t her ef or e does not al t er our concl usi on t hat
bar r i ng same- sex coupl es access t o mar r i age does not hi ng t o
f ur t her Vi r gi ni a s i nt er est i n r esponsi bl e pr ocr eat i on.

5. Opt i mal Chi l dr ear i ng
We now shi f t t o di scussi ng t he mer i t of t he f i nal
compel l i ng i nt er est t hat t he Pr oponent s i nvoke: opt i mal
chi l dr ear i ng. The Pr oponent s aver t hat chi l dr en devel op best
when r ear ed by t hei r mar r i ed bi ol ogi cal par ent s i n a st abl e
f ami l y uni t . They dwel l on t he i mpor t ance of gender -
di f f er ent i at ed par ent i ng and ar gue t hat sanct i oni ng same- sex
mar r i age wi l l depr i ve chi l dr en of t he benef i t of bei ng r ai sed by
a mot her and a f at her , who have di st i nct par ent i ng st yl es. I n
essence, t he Pr oponent s ar gue t hat t he Vi r gi ni a Mar r i age Laws
saf eguar d chi l dr en by pr event i ng same- sex coupl es f r om mar r yi ng
and st ar t i ng i nf er i or f ami l i es.
The Opponent s and t hei r ami ci cast ser i ous doubt on t he
accur acy of t he Pr oponent s cont ent i ons. For exampl e, as t he
Amer i can Psychol ogi cal Associ at i on, Amer i can Academy of
Pedi at r i cs, Amer i can Psychi at r i c Associ at i on, Nat i onal
Associ at i on of Soci al Wor ker s, and Vi r gi ni a Psychol ogi cal
Associ at i on ( col l ect i vel y, t he APA) expl ai n i n t hei r ami cus
br i ef , t her e i s no sci ent i f i c evi dence t hat par ent i ng
60

ef f ect i veness i s r el at ed t o par ent al sexual or i ent at i on, and
t he same f act or si ncl udi ng f ami l y st abi l i t y, economi c
r esour ces, and t he qual i t y of par ent - chi l d r el at i onshi psar e
l i nked t o chi l dr en s posi t i ve devel opment , whet her t hey ar e
r ai sed by het er osexual , l esbi an, or gay par ent s. Accor di ng t o
t he APA, t he par ent i ng abi l i t i es of gay men and l esbi ansand
t he posi t i ve out comes f or t hei r chi l dr enar e not ar eas wher e
most cr edi bl e sci ent i f i c r esear cher s di sagr ee, and t he cont r ar y
st udi es t hat t he Pr oponent s ci t e do not r ef l ect t he cur r ent
st at e of sci ent i f i c knowl edge. See al so DeBoer , 973 F. Supp.
2d at 760- 68 ( maki ng f act ual f i ndi ngs and r eachi ng t he same
concl usi on) . I n f act , t he APA expl ai ns t hat , by pr event i ng
same- sex coupl es f r om mar r yi ng, t he Vi r gi ni a Mar r i age Laws
act ual l y har m t he chi l dr en of same- sex coupl es by st i gmat i zi ng
t hei r f ami l i es and r obbi ng t hem of t he st abi l i t y, economi c
secur i t y, and t oget her ness t hat mar r i age f ost er s. The Supr eme
Cour t r eached a si mi l ar concl usi on i n Wi ndsor , i n whi ch i t
obser ved t hat f ai l i ng t o r ecogni ze same- sex mar r i ages
humi l i at es t ens of t housands of chi l dr en now bei ng r ai sed by
same- sex coupl es and makes i t even mor e di f f i cul t f or t he
chi l dr en t o under st and t he i nt egr i t y and cl oseness of t hei r own
f ami l y and i t s concor d wi t h ot her f ami l i es i n t hei r communi t y
and i n t hei r dai l y l i ves. 133 S. Ct . at 2694.
61

We f i nd t he ar gument s t hat t he Opponent s and t hei r ami ci
make on t hi s i ssue ext r emel y per suasi ve. However , we need not
r esol ve t hi s di sput e because t he Pr oponent s opt i mal
chi l dr ear i ng ar gument f al t er s f or at l east t wo ot her r easons.
Fi r st , under hei ght ened scr ut i ny, st at es cannot suppor t a l aw
usi ng over br oad gener al i zat i ons about t he di f f er ent t al ent s,
capaci t i es, or pr ef er ences of t he gr oups i n quest i on. Uni t ed
St at es v. Vi r gi ni a, 518 U. S. 515, 533- 34 ( 1996) ( r ej ect i ng
i nher ent di f f er ences bet ween men and women as a j ust i f i cat i on
f or excl udi ng al l women f r om a t r adi t i onal l y al l - mal e mi l i t ar y
col l ege) ; see al so St anl ey v. I l l i noi s, 405 U. S. 645, 656- 58
( 1972) ( hol di ng t hat a st at e coul d not pr esume t hat unmar r i ed
f at her s wer e unf i t par ent s) . The Pr oponent s st at ement s
r egar di ng same- sex coupl es par ent i ng abi l i t y cer t ai nl y qual i f y
as over br oad gener al i zat i ons. Second, as we expl ai n above,
st r i ct scr ut i ny r equi r es congr ui t y bet ween a l aw s means and i t s
end. Thi s congr ui t y i s absent her e. Ther e i s absol ut el y no
r eason t o suspect t hat pr ohi bi t i ng same- sex coupl es f r om
mar r yi ng and r ef usi ng t o r ecogni ze t hei r out - of - st at e mar r i ages
wi l l cause same- sex coupl es t o r ai se f ewer chi l dr en or i mpel
mar r i ed opposi t e- sex coupl es t o r ai se mor e chi l dr en. The
Vi r gi ni a Mar r i age Laws t her ef or e do not f ur t her Vi r gi ni a s
i nt er est i n channel i ng chi l dr en i nt o opt i mal f ami l i es, even i f
62

we wer e t o accept t he dubi ous pr oposi t i on t hat same- sex coupl es
ar e l ess capabl e par ent s.
Because t he Pr oponent s ar gument s ar e based on over br oad
gener al i zat i ons about same- sex par ent s, and because t her e i s no
l i nk bet ween banni ng same- sex mar r i age and pr omot i ng opt i mal
chi l dr ear i ng, t hi s ai m cannot suppor t t he Vi r gi ni a Mar r i age
Laws. Al l of t he Pr oponent s j ust i f i cat i ons f or t he Vi r gi ni a
Mar r i age Laws t her ef or e f ai l , and t he l aws cannot sur vi ve st r i ct
scr ut i ny.

V.
For t he f or egoi ng r easons, we concl ude t hat t he Vi r gi ni a
Mar r i age Laws vi ol at e t he Due Pr ocess and Equal Pr ot ect i on
Cl auses of t he Four t eent h Amendment t o t he ext ent t hat t hey
pr event same- sex coupl es f r om mar r yi ng and pr ohi bi t Vi r gi ni a
f r om r ecogni zi ng same- sex coupl es l awf ul out - of - st at e
mar r i ages. We t her ef or e af f i r m t he di st r i ct cour t s gr ant of
t he Pl ai nt i f f s mot i on f or summar y j udgment and i t s deci si on t o
enj oi n enf or cement of t he Vi r gi ni a Mar r i age Laws.
10

10
Because we ar e abl e t o r esol ve t he mer i t s of t he
Opponent s cl ai ms, we need not consi der t hei r al t er nat i ve
r equest f or a pr el i mi nar y i nj unct i on. We assume t hat t he
di st r i ct cour t s deci si on t o enj oi n enf or cement of t he Vi r gi ni a
Mar r i age Laws encompassed a per manent i nj unct i on, whi ch t he
Pl ai nt i f f s r equest ed i n connect i on wi t h t hei r mot i on f or summar y
j udgment .
63

We r ecogni ze t hat same- sex mar r i age makes some peopl e
deepl y uncomf or t abl e. However , i ner t i a and appr ehensi on ar e
not l egi t i mat e bases f or denyi ng same- sex coupl es due pr ocess
and equal pr ot ect i on of t he l aws. Ci vi l mar r i age i s one of t he
cor ner st ones of our way of l i f e. I t al l ows i ndi vi dual s t o
cel ebr at e and publ i cl y decl ar e t hei r i nt ent i ons t o f or m l i f el ong
par t ner shi ps, whi ch pr ovi de unpar al l el ed i nt i macy,
compani onshi p, emot i onal suppor t , and secur i t y. The choi ce of
whet her and whomt o mar r y i s an i nt ensel y per sonal deci si on t hat
al t er s t he cour se of an i ndi vi dual s l i f e. Denyi ng same- sex
coupl es t hi s choi ce pr ohi bi t s t hem f r om par t i ci pat i ng f ul l y i n
our soci et y, whi ch i s pr eci sel y t he t ype of segr egat i on t hat t he
Four t eent h Amendment cannot count enance.
AFFI RMED
NI EMEYER, Ci r cui t J udge, di ssent i ng:
To be cl ear , t hi s case i s not about whet her cour t s f avor or
di sf avor same- sex mar r i age, or whet her St at es r ecogni zi ng or
decl i ni ng t o r ecogni ze same- sex mar r i age have made good pol i cy
deci si ons. I t i s much nar r ower . I t i s about whet her a St at e s
deci si on not t o r ecogni ze same- sex mar r i age vi ol at es t he
Four t eent h Amendment of t he U. S. Const i t ut i on. Thus, t he
j udi ci al r esponse must be l i mi t ed t o an anal ysi s appl yi ng
est abl i shed const i t ut i onal pr i nci pl es.
The Commonweal t h of Vi r gi ni a has al ways r ecogni zed t hat
mar r i age i s based on t he mut ual agr eement of a man and a
woman t o mar r y each ot her , Bur ke v. Shaver , 23 S. E. 749, 749
( Va. 1895) , and t hat a mar r i age s pur poses i ncl ude est abl i shi ng
a f ami l y, t he cont i nuance of t he r ace, t he pr opagat i on of
chi l dr en, and t he gener al good of soci et y, Al exander v.
Kuykendal l , 63 S. E. 2d 746, 748 ( Va. 1951) . I n r ecent year s, i t
codi f i ed t hat under st andi ng i n sever al st at ut es, whi ch al so
expl i ci t l y excl ude f r om t he def i ni t i on of mar r i age t he uni on
of t wo men or t wo women. Mor eover , i n 2006 t he peopl e of
Vi r gi ni a amended t he Commonweal t h s Const i t ut i on t o def i ne
mar r i age as onl y bet ween one man and one woman. Va. Const .
ar t . I , 15- A.
The pl ai nt i f f s, who ar e i n l ong- t er m same- sex
r el at i onshi ps, ar e chal l engi ng t he const i t ut i onal i t y of
65

Vi r gi ni a s mar r i age l aws under t he Due Pr ocess and Equal
Pr ot ect i on Cl auses of t he U. S. Const i t ut i on. The di st r i ct cour t
sust ai ned t hei r chal l enge, concl udi ng t hat t he pl ai nt i f f s have a
f undament al r i ght t o mar r y each ot her under t he Due Pr ocess
Cl ause of t he Four t eent h Amendment and t her ef or e t hat any
r egul at i on of t hat r i ght i s subj ect t o st r i ct scr ut i ny.
Concl udi ng t hat Vi r gi ni a s def i ni t i on of mar r i age f ai l ed even
t o di spl ay a r at i onal r el at i onshi p t o a l egi t i mat e pur pose and
so must be vi ewed as const i t ut i onal l y i nf i r m, t he cour t st r uck
down Vi r gi ni a s mar r i age l aws as unconst i t ut i onal and enj oi ned
t hei r enf or cement . Bost i c v. Rai ney, 970 F. Supp. 2d 456, 482
( E. D. Va. 2014) .
The maj or i t y agr ees. I t concl udes t hat t he f undament al
r i ght t o mar r i age i ncl udes a r i ght t o same- sex mar r i age and t hat
t her ef or e Vi r gi ni a s mar r i age l aws must be r evi ewed under st r i ct
scr ut i ny. I t hol ds t hat Vi r gi ni a has f ai l ed t o advance a
compel l i ng st at e i nt er est j ust i f yi ng i t s def i ni t i on of mar r i age
as bet ween onl y a man and a woman. I n r eachi ng t hi s concl usi on,
however , t he maj or i t y has f ai l ed t o conduct t he necessar y
const i t ut i onal anal ysi s. Rat her , i t has si mpl y decl ar ed
syl l ogi st i cal l y t hat because mar r i age i s a f undament al r i ght
pr ot ect ed by t he Due Pr ocess Cl ause and same- sex mar r i age i s a
f or m of mar r i age, Vi r gi ni a s l aws decl i ni ng t o r ecogni ze same-
66

sex mar r i age i nf r i nge t he f undament al r i ght t o mar r i age and ar e
t her ef or e unconst i t ut i onal .
St at ed mor e par t i cul ar l y, t he maj or i t y s appr oach begi ns
wi t h t he par t i es agr eement t hat mar r i age i s a f undament al
r i ght . Ant e at 40. Fr om t her e, t he maj or i t y moves t o t he
pr oposi t i on t hat t he r i ght t o mar r y i s an expansi ve l i ber t y
i nt er est , ant e at 41, t hat i s not ci r cumscr i bed based on t he
char act er i st i cs of t he i ndi vi dual s seeki ng t o exer ci se t hat
r i ght , ant e at 42- 43. For suppor t , i t not es t hat t he Supr eme
Cour t has st r uck down st at e r est r i ct i ons pr ohi bi t i ng i nt er r aci al
mar r i age, see Lovi ng v. Vi r gi ni a, 388 U. S. 1 ( 1967) ; pr ohi bi t i ng
pr i son i nmat es f r om mar r yi ng wi t hout speci al appr oval , see
Tur ner v. Saf l ey, 482 U. S. 78 ( 1987) ; and pr ohi bi t i ng per sons
owi ng chi l d suppor t f r om mar r yi ng, see Zabl ocki v. Redhai l , 434
U. S. 374 ( 1978) . I t t hen decl ar es, i pse di xi t , t hat t he
f undament al r i ght t o mar r y encompasses t he r i ght t o same- sex
mar r i age and i s t hus pr ot ect ed by t he subst ant i ve component of
t he Due Pr ocess Cl ause. Ant e at 41. I n r eachi ng t hi s
concl usi on, t he maj or i t y decl i ne[ s] t he Pr oponent s i nvi t at i on
t o char act er i ze t he r i ght at i ssue i n t hi s case as t he r i ght t o
same- sex mar r i age r at her t han si mpl y t he r i ght t o mar r y. Ant e
at 44. And i n doi ng so, i t expl i ci t l y bypasses t he r el evant
const i t ut i onal anal ysi s r equi r ed by Washi ngt on v. Gl ucksber g,
521 U. S. 702 ( 1997) , st at i ng t hat a Gl ucksber g anal ysi s i s not
67

necessar y because no new f undament al r i ght i s bei ng r ecogni zed.
Ant e at 41- 42.
Thi s anal ysi s i s f undament al l y f l awed because i t f ai l s t o
t ake i nt o account t hat t he mar r i age t hat has l ong been
r ecogni zed by t he Supr eme Cour t as a f undament al r i ght i s
di st i nct f r om t he newl y pr oposed r el at i onshi p of a same- sex
mar r i age. And t hi s f ai l ur e i s even mor e pr onounced by t he
maj or i t y s acknowl edgment t hat same- sex mar r i age i s a new not i on
t hat has not been r ecogni zed f or most of our count r y s
hi st or y. Ant e at 41. Mor eover , t he maj or i t y f ai l s t o expl ai n
how t hi s new not i on became i ncor por at ed i nt o t he t r adi t i onal
def i ni t i on of mar r i age except by l i ngui st i c mani pul at i on. Thus,
t he maj or i t y never asks t he quest i on necessar y t o f i ndi ng a
f undament al r i ght - - whet her same- sex mar r i age i s a r i ght t hat
i s deepl y r oot ed i n t hi s Nat i on s hi st or y and t r adi t i on and
i mpl i ci t i n t he concept of or der ed l i ber t y, such t hat nei t her
l i ber t y nor j ust i ce woul d exi st i f [ i t was] sacr i f i ced.
Gl ucksber g, 521 U. S. at 721 ( quot i ng Moor e v. East Cl evel and,
431 U. S. 494, 503 ( 1977) ( pl ur al i t y opi ni on) ; Pal ko v.
Connect i cut , 302 U. S. 319, 325- 26 ( 1937) ) ( i nt er nal quot at i on
mar ks omi t t ed) .
At bot t om, i n hol di ng t hat same- sex mar r i age i s encompassed
by t he t r adi t i onal r i ght t o mar r y, t he maj or i t y avoi ds t he
necessar y const i t ut i onal anal ysi s, concl udi ng si mpl y and br oadl y
68

t hat t he f undament al r i ght t o mar r y - - by ever yone and t o
anyone - - may not be i nf r i nged. And i t does not ant i ci pat e or
addr ess t he pr obl ems t hat t hi s appr oach causes, f ai l i ng t o
expl ai n, f or exampl e, why t hi s br oad r i ght t o mar r y, as t he
maj or i t y def i nes i t , does not al so encompass t he r i ght of a
f at her t o mar r y hi s daught er or t he r i ght of any per son t o
mar r y mul t i pl e par t ner s.
I f t he maj or i t y wer e t o r ecogni ze and addr ess t he
di st i nct i on bet ween t he t wo r el at i onshi ps - - t he t r adi t i onal one
and t he new one - - as i t must , i t woul d si mpl y be unabl e t o
r each t he concl usi on t hat i t has r eached.
I r espect f ul l y submi t t hat , f or t he r easons t hat f ol l ow,
Vi r gi ni a was wel l wi t hi n i t s const i t ut i onal aut hor i t y t o adher e
t o i t s t r adi t i onal def i ni t i on of mar r i age as t he uni on of a man
and a woman and t o excl ude f r omt hat def i ni t i on t he uni on of t wo
men or t wo women. I woul d al so agr ee t hat t he U. S. Const i t ut i on
does not pr ohi bi t a St at e f r om def i ni ng mar r i age t o i ncl ude
same- sex mar r i age, as many St at es have done. Accor di ngl y, I
woul d r ever se t he j udgment of t he di st r i ct cour t and uphol d
Vi r gi ni a s mar r i age l aws.

I

As t he maj or i t y has obser ved, st at e r ecogni t i on of same- sex
mar r i age i s a new phenomenon. I t s hi st or y began i n t he ear l y
69

2000s wi t h t he r ecogni t i on i n some St at es of ci vi l uni ons. See,
e. g. , Vt . St at . Ann. t i t . 15, 1201- 1202 ( 2000) ; D. C. Code
32- 701 ( 1992) ( ef f ect i ve i n 2002) ; Cal . Fam. Code 297- 298
( 2003) ; N. J . St at . Ann. 26: 8A- 2 ( 2003) ; Conn. Gen. St at . Ann.
46b- 38nn ( 2006) , i nval i dat ed by Ker r i gan v. Comm r of Pub.
Heal t h, 957 A. 2d 407 ( Conn. 2008) . And t he not i on of same- sex
mar r i age i t sel f f i r st gai ned t r act i on i n 2003, when t he
Massachuset t s Supr eme J udi ci al Cour t hel d t hat t he
Commonweal t h s pr ohi bi t i on on i ssui ng mar r i age l i censes t o same-
sex coupl es vi ol at ed t he St at e s Const i t ut i on - - t he f i r st
deci si on hol di ng t hat same- sex coupl es had a r i ght t o mar r y.
See Goodr i dge v. Dep t of Pub. Heal t h, 798 N. E. 2d 941, 968
( Mass. 2003) . I n 2009, Ver mont became t he f i r st St at e t o enact
l egi sl at i on r ecogni zi ng same- sex mar r i age, and, si nce t hen, 11
ot her St at es and t he Di st r i ct of Col umbi a have al so done so.
See Conn. Gen. St at . 46b- 20 t o 46b- 20a; Del . Code Ann. t i t .
13, 101; D. C. Code 46- 401; Haw. Rev. St at . 572- 1; 750 I l l .
Comp. St at . 5/ 201; Me. Rev. St at . t i t . 19- A, 650- A; Md. Code
Ann. , Fam. Law 2- 201 t o 2- 202; Mi nn. St at . Ann. 517. 01 t o
517. 03; N. H. Rev. St at . Ann. 457: 1- a t o 457: 2; N. Y. Dom. Rel .
Law 10- a; R. I . Gen. Laws 15- 1- 1 et seq. ; Vt . St at . Ann. t i t .
15, 8; Wash. Rev. Code 26. 04. 010 t o 26. 04. 020. Mor eover ,
seven ot her St at es cur r ent l y al l ow same- sex mar r i age as a r esul t
of cour t r ul i ngs. See Hol l i ngswor t h v. Per r y, 133 S. Ct . 2652
70

( 2013) ; Var num v. Br i en, 763 N. W. 2d 862 ( I owa 2009) ; Goodr i dge,
798 N. E. 2d 941; Gar den St at e Equal i t y v. Dow, 79 A. 3d 1036 ( N. J .
2013) ; Gr i ego v. Ol i ver , 316 P. 3d 865 ( N. M. 2013) ; Gei ger v.
Ki t zhaber , ___ F. Supp. 2d ___, No. 6: 13- CV- 01834- MC, 2014 WL
2054264 ( D. Or . May 19, 2014) ; Whi t ewood v. Wol f , ___ F. Supp.
2d ___, No. 1: 13- CV- 1861, 2014 WL 2058105 ( M. D. Pa. May 20,
2014) . Thi s i s i ndeed a r ecent phenomenon.
Vi r gi ni a onl y r ecogni zes mar r i age as bet ween one man and
one woman, and, l i ke a maj or i t y of St at es, i t has codi f i ed t hi s
vi ew. See Va. Code Ann. 20- 45. 2 ( pr ohi bi t i ng same- sex
mar r i age and decl i ni ng t o r ecogni ze same- sex mar r i ages conduct ed
i n ot her St at es) ; i d. 20- 45. 3 ( pr ohi bi t i ng ci vi l uni ons and
si mi l ar ar r angement s bet ween per sons of t he same sex) . The bi l l
or i gi nal l y pr oposi ng what woul d become 20- 45. 3 not ed t he basi s
f or Vi r gi ni a s l egi sl at i ve deci si on:
[ H] uman mar r i age i s a consummat ed t wo i n one communi on
of mal e and f emal e per sons made possi bl e by sexual
di f f er ences whi ch ar e r epr oduct i ve i n t ype, whet her or
not t hey ar e r epr oduct i ve i n ef f ect or mot i vat i on.
Thi s pr esent r el at i onshi p r ecogni zes t he equal i t y of
mal e and f emal e per sons, and ant edat es r ecor ded
hi st or y.
Af f i r mat i on of Mar r i age Act , H. D. 751, 2004 Gen. Assembl y, Reg.
Sess. ( Va. 2004) . The bi l l pr edi ct ed t hat t he r ecogni t i on of
same- sex mar r i age woul d r adi cal l y t r ansf or m t he i nst i t ut i on of
mar r i age wi t h ser i ous and har mf ul consequences t o t he soci al
or der . I d. Vi r gi ni a al so amended i t s Const i t ut i on i n 2006 t o
71

def i ne mar r i age as onl y bet ween one man and one woman and t o
pr ohi bi t a l egal st at us f or r el at i onshi ps of unmar r i ed
i ndi vi dual s t hat i nt ends t o appr oxi mat e t he desi gn, qual i t i es,
si gni f i cance, or ef f ect s of mar r i age. Va. Const . ar t . I , 15-
A. The pl ai nt i f f s commenced t hi s act i on t o chal l enge t he
const i t ut i onal i t y of Vi r gi ni a s mar r i age l aws.
Pl ai nt i f f s Ti mot hy B. Bost i c and Tony C. London have l i ved
i n a commi t t ed same- sex r el at i onshi p si nce 1989 and have l i ved
i n Vi r gi ni a si nce 1991. The t wo desi r ed t o mar r y i n Vi r gi ni a,
and on J ul y 1, 2013, when t hey appl i ed f or a mar r i age l i cense at
t he of f i ce of t he Cl er k of t he Ci r cui t Cour t f or t he Ci t y of
Nor f ol k, t hey wer e deni ed a l i cense and t ol d t hat same- sex
coupl es ar e i nel i gi bl e t o mar r y i n Vi r gi ni a. I n t hei r compl ai nt
chal l engi ng Vi r gi ni a s mar r i age l aws, t hey al l eged t hat t hei r
i nabi l i t y t o mar r y has di sadvant aged t hem i n bot h economi c and
per sonal ways - - i t has pr event ed t hem f r om f i l i ng j oi nt t ax
r et ur ns, kept t hem f r om shar i ng heal t h i nsur ance on a t ax- f r ee
basi s, and si gnal ed t hat t hey ar e l ess t han ot her coupl es i n
Vi r gi ni a.
Pl ai nt i f f s Car ol Schal l and Mar y Townl ey l i kewi se have
l i ved i n a commi t t ed same- sex r el at i onshi p si nce 1985 and have
l i ved i n Vi r gi ni a t hr oughout t hei r 29- year r el at i onshi p. I n
1998, Townl ey gave bi r t h t o a daught er , E. S. - T. , whomSchal l and
Townl ey have r ai sed t oget her , and i n 2008, t he t wo t r avel ed t o
72

Cal i f or ni a wher e t hey wer e l awf ul l y mar r i ed. They al l eged i n
t hei r compl ai nt t hat because Vi r gi ni a does not r ecogni ze t hei r
mar r i age as val i d, t hey have been i nj ur ed i n sever al ways.
Schal l i s unabl e t o l egal l y adopt E. S. - T. , and t he t wo ar e
unabl e t o shar e heal t h i nsur ance on a t ax- f r ee basi s. The t wo
al so cl ai med t hat t hey and E. S. - T. have exper i enced st i gma as a
r esul t of Vi r gi ni a s nonr ecogni t i on of t hei r mar r i age.
The pl ai nt i f f s compl ai nt , f i l ed i n J ul y 2013, al l eged t hat
Vi r gi ni a s mar r i age l aws vi ol at e t hei r const i t ut i onal r i ght s
under t he Due Pr ocess and Equal Pr ot ect i on Cl auses of t he
Four t eent h Amendment . They named as def endant s Geor ge E.
Schaef er , I I I , Cl er k of Cour t f or t he Nor f ol k Ci r cui t Cour t , and
J anet M. Rai ney, t he St at e Regi st r ar of Vi t al Recor ds. A t hi r d
Vi r gi ni a of f i ci al , Mi chl e B. McQui gg, Cl er k of Cour t f or t he
Pr i nce Wi l l i am Count y Ci r cui t Cour t , was per mi t t ed t o i nt er vene
as a def endant . As el ect ed ci r cui t cour t cl er ks, Schaef er and
McQui gg ar e r esponsi bl e f or i ssui ng i ndi vi dual mar r i age l i censes
i n t he l ocal i t i es i n whi ch t hey ser ve. And Rai ney, as t he St at e
Regi st r ar of Vi t al Recor ds, i s r esponsi bl e f or ensur i ng
compl i ance wi t h Vi r gi ni a s mar r i age l aws, i ncl udi ng t he l aws
chal l enged i n t hi s case.
Af t er t he par t i es f i l ed cr oss- mot i ons f or summar y j udgment ,
Vi r gi ni a under went a change i n admi ni st r at i ons, and t he newl y
el ect ed At t or ney Gener al of Vi r gi ni a, Mar k Her r i ng, f i l ed a
73

not i ce of a change i n hi s of f i ce s l egal posi t i on on behal f of
hi s cl i ent , def endant J anet Rai ney. Hi s not i ce st at ed t hat
because, i n hi s vi ew, t he l aws at i ssue wer e unconst i t ut i onal ,
hi s of f i ce woul d no l onger def end t hem on behal f of Rai ney. He
not ed, however , t hat Rai ney woul d cont i nue t o enf or ce t he l aws
unt i l t he cour t s r ul i ng. The ot her of f i ci al s have cont i nued t o
def end Vi r gi ni a s mar r i age l aws, and, f or conveni ence, I r ef er
t o t he def endant s her ei n as Vi r gi ni a.
Fol l owi ng a hear i ng, t he di st r i ct cour t , by an or der and
memor andum dat ed Febr uar y 14, 2014, gr ant ed t he pl ai nt i f f s
mot i on f or summar y j udgment and deni ed Vi r gi ni a s cr oss- mot i on.
The cour t concl uded t hat same- sex par t ner s have a f undament al
r i ght t o mar r y each ot her under t he Due Pr ocess Cl ause of t he
Four t eent h Amendment , t hus r equi r i ng t hat Vi r gi ni a s mar r i age
l aws r est r i ct i ng t hat r i ght be nar r owl y dr awn t o f ur t her a
compel l i ng st at e i nt er est . I t concl uded t hat t he l aws di d not
meet t hat r equi r ement and, i ndeed, f ai l [ ed] t o di spl ay a
r at i onal r el at i onshi p t o a l egi t i mat e pur pose, and so must be
vi ewed as const i t ut i onal l y i nf i r m under even t he l east oner ous
l evel of scr ut i ny. Bost i c, 970 F. Supp. 2d at 482. St r i ki ng
down Vi r gi ni a s mar r i age l aws, t he cour t al so i ssued an or der
enj oi ni ng t hei r enf or cement but st ayed t hat or der pendi ng
appeal . Thi s appeal f ol l owed.

74

I I

The pl ai nt i f f s cont end t hat , as same- sex par t ner s, t hey
have a f undament al r i ght t o mar r y t hat i s pr ot ect ed by t he
subst ant i ve component of t he Due Pr ocess Cl ause of t he U. S.
Const i t ut i on, U. S. Const . amend. XI V, 1 ( pr ohi bi t i ng any St at e
f r om depr i vi ng any per son of l i f e, l i ber t y, or pr oper t y,
wi t hout due pr ocess of l aw) , and t hat Vi r gi ni a s l aws def i ni ng
mar r i age as onl y bet ween a man and a woman and excl udi ng same-
sex mar r i age i nf r i nge on t hat r i ght . The const i t ut i onal
anal ysi s f or adj udgi ng t hei r cl ai mi s wel l est abl i shed.
The Const i t ut i on cont ai ns no l anguage di r ect l y pr ot ect i ng
t he r i ght t o same- sex mar r i age or even t r adi t i onal mar r i age.
Any r i ght t o same- sex mar r i age, t her ef or e, woul d have t o be
f ound, t hr ough cour t i nt er pr et at i on, as a subst ant i ve component
of t he Due Pr ocess Cl ause. See Pl anned Par ent hood of
Sout heast er n Pa. v. Casey, 505 U. S. 833, 846 ( 1992) ( Al t hough a
l i t er al r eadi ng of t he Cl ause mi ght suggest t hat i t gover ns onl y
t he pr ocedur es by whi ch a St at e may depr i ve per sons of l i ber t y,
f or at l east 105 year s . . . t he Cl ause has been under st ood t o
cont ai n a subst ant i ve component as wel l ) .
The subst ant i ve component of t he Due Pr ocess Cl ause onl y
pr ot ect s f undament al l i ber t y i nt er est s. And t he Supr eme Cour t
has hel d t hat l i ber t y i nt er est s ar e onl y f undament al i f t hey
ar e, obj ect i vel y, deepl y r oot ed i n t hi s Nat i on s hi st or y and
75

t r adi t i on, and i mpl i ci t i n t he concept of or der ed l i ber t y,
such t hat nei t her l i ber t y nor j ust i ce woul d exi st i f t hey wer e
sacr i f i ced. Gl ucksber g, 521 U. S. at 720- 21 ( ci t at i on omi t t ed)
( quot i ng Moor e, 431 U. S. at 503 ( pl ur al i t y opi ni on) ; Pal ko, 302
U. S. at 325- 26) . When det er mi ni ng whet her such a f undament al
r i ght exi st s, a cour t must al ways make a car ef ul descr i pt i on
of t he asser t ed f undament al l i ber t y i nt er est . I d. at 721
( emphasi s added) ( quot i ng Reno v. Fl or es, 507 U. S. 292, 302
( 1993) ) . Thi s car ef ul descr i pt i on i nvol ves char act er i zi ng t he
r i ght asser t ed i n i t s nar r owest t er ms. Thus, i n Gl ucksber g,
wher e t he Cour t was pr esent ed wi t h a due pr ocess chal l enge t o a
st at e st at ut e banni ng assi st ed sui ci de, t he Cour t nar r owl y
char act er i zed t he r i ght bei ng asser t ed i n t he f ol l owi ng manner :
The Cour t of Appeal s st at ed t hat [ p] r oper l y anal yzed,
t he f i r st i ssue t o be r esol ved i s whet her t her e i s a
l i ber t y i nt er est i n det er mi ni ng t he t i me and manner of
one s deat h, or , i n ot her wor ds, [ i ] s t her e a r i ght
t o di e? Si mi l ar l y, r espondent s asser t a l i ber t y t o
choose how t o di e and a r i ght t o cont r ol of one s
f i nal days, and descr i be t he asser t ed l i ber t y as t he
r i ght t o choose a humane, di gni f i ed deat h, and t he
l i ber t y t o shape deat h. As not ed above, we have a
t r adi t i on of car ef ul l y f or mul at i ng t he i nt er est at
st ake i n subst ant i ve- due- pr ocess cases. . . . The
Washi ngt on st at ut e at i ssue i n t hi s case pr ohi bi t s
ai d[ i ng] anot her per son t o at t empt sui ci de, and,
t hus, t he quest i on bef or e us i s whet her t he l i ber t y
speci al l y pr ot ect ed by t he Due Pr ocess Cl ause i ncl udes
a r i ght t o commi t sui ci de whi ch i t sel f i ncl udes a
r i ght t o assi st ance i n doi ng so.

Gl ucksber g, 521 U. S. at 722- 23 ( al t er at i ons i n or i gi nal )
( emphasi s added) ( ci t at i ons omi t t ed) .
76

Under t hi s f or mul at i on, because t he Vi r gi ni a l aws at i ssue
pr ohi bi t mar r i age bet ween per sons of t he same sex, Va. Code
Ann. 20- 45. 2, t he quest i on bef or e us i s whet her t he l i ber t y
speci al l y pr ot ect ed by t he Due Pr ocess Cl ause i ncl udes a r i ght
t o same- sex mar r i age. Gl ucksber g, 521 U. S. at 723; see al so
J ackson v. Aber cr ombi e, 884 F. Supp. 2d 1065, 1095 ( D. Haw.
2012) ( [ M] i ssi ng f r om Pl ai nt i f f s asser t ed r i ght t o mar r y t he
per son of one s choi ce i s i t s cent er pi ece: t he r i ght t o mar r y
someone of t he same gender ) .
When a f undament al r i ght i s so i dent i f i ed, t hen any st at ut e
r est r i ct i ng t he r i ght i s subj ect t o st r i ct scr ut i ny and must be
nar r owl y t ai l or ed t o ser ve a compel l i ng st at e i nt er est .
Fl or es, 507 U. S. at 302. Such scr ut i ny i s ext r emel y di f f i cul t
f or a l aw t o wi t hst and, and, as such, t he Supr eme Cour t has
not ed t hat cour t s must be ext r emel y caut i ous i n r ecogni zi ng
f undament al r i ght s because doi ng so or di nar i l y r emoves f r eedom
of choi ce f r omt he hands of t he peopl e:
[ W] e ha[ ve] al ways been r el uct ant t o expand t he
concept of subst ant i ve due pr ocess because gui depost s
f or r esponsi bl e deci si onmaki ng i n t hi s unchar t er ed
ar ea ar e scar ce and open- ended. By ext endi ng
const i t ut i onal pr ot ect i on t o an asser t ed r i ght or
l i ber t y i nt er est , we, t o a gr eat ext ent , pl ace t he
mat t er out si de t he ar ena of publ i c debat e and
l egi sl at i ve act i on. We must t her ef or e exer ci se t he
ut most car e whenever we ar e asked t o br eak new gr ound
i n t hi s f i el d, l est t he l i ber t y pr ot ect ed by t he Due
Pr ocess Cl ause be subt l y t r ansf or med i nt o t he pol i cy
pr ef er ences of t he Member s of t hi s Cour t .

77

Gl ucksber g, 521 U. S. at 720 ( second al t er at i on i n or i gi nal )
( emphasi s added) ( quot i ng Col l i ns v. Ci t y of Har ker Hei ght s, 503
U. S. 115, 125 ( 1992) ) .
The pl ai nt i f f s i n t hi s case, as wel l as t he maj or i t y,
r ecogni ze t hat nar r owl y def i ni ng t he asser t ed l i ber t y i nt er est
woul d r equi r e t hem t o demonst r at e a new f undament al r i ght t o
same- sex mar r i age, whi ch t hey cannot do. Thus, t hey have made
no at t empt t o ar gue t hat same- sex mar r i age i s, obj ect i vel y,
deepl y r oot ed i n t hi s Nat i on s hi st or y and t r adi t i on, and
i mpl i ci t i n t he concept of or der ed l i ber t y. Gl ucksber g, 521
U. S. at 720- 21 ( i nt er nal quot at i on mar ks omi t t ed) . I ndeed, t hey
have acknowl edged t hat r ecogni t i on of same- sex mar r i age i s a
r ecent devel opment . See ant e at 41; see al so Uni t ed St at es v.
Wi ndsor , 133 S. Ct . 2675, 2689 ( 2013) ( Unt i l r ecent year s, many
ci t i zens had not even consi der ed t he possi bi l i t y of [ same- sex
mar r i age] ( emphasi s added) ) ; i d. at 2715 ( Al i t o, J . ,
di ssent i ng) ( not i ng t hat i t i s beyond di sput e t hat t he r i ght t o
same- sex mar r i age i s not deepl y r oot ed i n t hi s Nat i on s hi st or y
and t r adi t i on) ; Baehr v. Lewi n, 852 P. 2d 44, 57 ( Haw. 1993)
( [ W] e do not bel i eve t hat a r i ght t o same- sex mar r i age i s so
r oot ed i n t he t r adi t i ons and col l ect i ve consci ence of our peopl e
t hat f ai l ur e t o r ecogni ze i t woul d vi ol at e t he f undament al
pr i nci pl es of l i ber t y and j ust i ce t hat l i e at t he base of al l
our ci vi l and pol i t i cal i nst i t ut i ons) .
78

I nst ead, t he pl ai nt i f f s and t he maj or i t y ar gue t hat t he
f undament al r i ght t o mar r i age t hat has pr evi ousl y been
r ecogni zed by t he Supr eme Cour t i s a br oad r i ght t hat shoul d
appl y t o t he pl ai nt i f f s wi t hout t he need t o r ecogni ze a new
f undament al r i ght t o same- sex mar r i age. They ar gue t hat t hi s
appr oach i s suppor t ed by t he f act t hat t he Supr eme Cour t di d not
nar r owl y def i ne t he r i ght t o mar r i age i n i t s deci si ons i n
Lovi ng, 388 U. S. at 12; Tur ner , 482 U. S. at 94- 96; or Zabl ocki ,
434 U. S. at 383- 86.
I t i s t r ue t hat , i n t hose cases, t he Cour t di d not
r ecogni ze new, separ at e f undament al r i ght s t o f i t t he f act ual
ci r cumst ances i n each case. For exampl e, i n Lovi ng, t he Cour t
di d not exami ne whet her i nt er r aci al mar r i age was, obj ect i vel y,
deepl y r oot ed i n our Nat i on s hi st or y and t r adi t i on. But i t was
not r equi r ed t o do so. Each of t hose cases i nvol ved a coupl e
asser t i ng a r i ght t o ent er i nt o a t r adi t i onal mar r i age of t he
t ype t hat has al ways been r ecogni zed si nce t he begi nni ng of t he
Nat i on - - a uni on bet ween one man and one woman. Whi l e t he
cont ext f or asser t i ng t he r i ght var i ed i n each of t hose cases,
i t var i ed onl y i n ways i r r el evant t o t he concept of mar r i age.
The t ype of r el at i onshi p sought was al ways t he t r adi t i onal , man-
woman r el at i onshi p t o whi ch t he t er m mar r i age was t her et of or e
al ways assumed t o r ef er . Thus, none of t he cases ci t ed by t he
pl ai nt i f f s and r el i ed on by t he maj or i t y i nvol ved t he asser t i on
79

of a br and new l i ber t y i nt er est . To t he cont r ar y, t hey i nvol ved
t he asser t i on of one of t he ol dest and most f undament al l i ber t y
i nt er est s i n our soci et y.
To now def i ne t he pr evi ousl y r ecogni zed f undament al r i ght
t o mar r i age as a concept t hat i ncl udes t he new not i on of
same- sex mar r i age amount s t o a di ct i onar y j ur i spr udence, whi ch
def i nes t er ms as conveni ent t o at t ai n an end.
I t i s t r ue t hat same- sex and opposi t e- sex r el at i onshi ps
shar e many at t r i but es, and, t her ef or e, mar r i ages i nvol vi ng t hose
r el at i onshi ps woul d, t o a subst ant i al ext ent , be si mi l ar . Two
per sons who ar e at t r act ed t o each ot her physi cal l y and
emot i onal l y and who l ove each ot her coul d publ i cl y pr omi se t o
l i ve wi t h each ot her t her eaf t er i n a mut ual l y desi r abl e
r el at i onshi p. These aspect s ar e t he same whet her t he per sons
ar e of t he same sex or di f f er ent sexes. Mor eover , bot h
r el at i onshi ps coul d successf ul l y f unct i on t o r ai se chi l dr en,
al t hough chi l dr en i n a same- sex r el at i onshi p woul d come f r om one
par t ner or f r om adopt i on. But t her e ar e al so si gni f i cant
di st i nct i ons bet ween t he r el at i onshi ps t hat can j ust i f y
di f f er ent i al t r eat ment by l awmaker s.
Onl y t he uni on of a man and a woman has t he capaci t y t o
pr oduce chi l dr en and t hus t o car r y on t he speci es. And mor e
i mpor t ant l y, onl y such a uni on cr eat es a bi ol ogi cal f ami l y uni t
t hat al so gi ves r i se t o a t r adi t i onal l y st abl e pol i t i cal uni t .
80

Ever y per son s i dent i t y i ncl udes t he per son s par t i cul ar
bi ol ogi cal r el at i onshi ps, whi ch cr eat e uni que and meani ngf ul
bonds of ki nshi p t hat ar e ext r aor di nar i l y st r ong and endur i ng
and t hat have been af f or ded a pr i vi l eged pl ace i n pol i t i cal
or der t hr oughout human hi st or y. Soci et i es have accor di ngl y
enact ed l aws pr omot i ng t he f ami l y uni t - - such as t hose r el at i ng
t o sexual engagement , mar r i age r i t es, di vor ce, i nher i t ance, name
and t i t l e, and economi c mat t er s. And many soci et i es have f ound
f ami l i al bonds so cr i t i cal t hat t hey have el evat ed mar r i age t o
be a sacr ed i nst i t ut i on t r apped wi t h r el i gi ous r i t ual s. I n
t hese r espect s, t he t r adi t i onal man- woman r el at i onshi p i s
uni que.
Thus, when t he Supr eme Cour t has r ecogni zed, t hr ough t he
year s, t hat t he r i ght t o mar r y i s a f undament al r i ght , i t has
emphasi zed t he pr ocr eat i ve and soci al or der i ng aspect s of
t r adi t i onal mar r i age. For exampl e, i t has sai d: [ Mar r i age] i s
an i nst i t ut i on, i n t he mai nt enance of whi ch i n i t s pur i t y t he
publ i c i s deepl y i nt er est ed, f or i t i s t he f oundat i on of t he
f ami l y and of soci et y, wi t hout whi ch t her e woul d be nei t her
ci vi l i zat i on nor pr ogr ess, Maynar d v. Hi l l , 125 U. S. 190, 211
( 1888) ( emphasi s added) ; Mar r i age i s one of t he basi c ci vi l
r i ght s of man. Mar r i age and pr ocr eat i on ar e f undament al t o t he
ver y exi st ence and sur vi val of t he r ace, Ski nner v. Okl ahoma ex
r el . Wi l l i amson, 316 U. S. 535, 541 ( 1942) ; I t i s not sur pr i si ng
81

t hat t he deci si on t o mar r y has been pl aced on t he same l evel of
i mpor t ance as deci si ons r el at i ng t o pr ocr eat i on, chi l dbi r t h,
chi l dr ear i ng, and f ami l y r el at i onshi ps. . . . [ Mar r i age] i s t he
f oundat i on of t he f ami l y i n our soci et y, Zabl ocki , 434 U. S. at
386.
Because t her e exi st deep, f undament al di f f er ences bet ween
t r adi t i onal and same- sex mar r i age, t he pl ai nt i f f s and t he
maj or i t y er r by conf l at i ng t he t wo r el at i onshi ps under t he
l oosel y dr awn r ubr i c of t he r i ght t o mar r i age. Rat her , t o
obt ai n const i t ut i onal pr ot ect i on, t hey woul d have t o show t hat
t he r i ght t o same- sex mar r i age i s i t sel f deepl y r oot ed i n our
Nat i on s hi st or y. They have not at t empt ed t o do so and coul d
not succeed i f t hey wer e so t o at t empt .
I n an ef f or t t o br i dge t he obvi ous di f f er ences bet ween t he
t r adi t i onal r el at i onshi p and t he new same- sex r el at i onshi p, t he
pl ai nt i f f s ar gue t hat t he f undament al r i ght t o mar r i age has
al ways been based on, and def i ned by, t he const i t ut i onal l i ber t y
t o sel ect t he par t ner of one s choi ce. ( Emphasi s added) . They
r el y heavi l y on Lovi ng t o asser t t hi s cl ai m. I n Lovi ng, t he
Cour t hel d t hat a st at e r egul at i on r est r i ct i ng i nt er r aci al
mar r i age i nf r i nged on t he f undament al r i ght t o mar r i age.
Lovi ng, 388 U. S. at 12. But nowher e i n Lovi ng di d t he Cour t
suggest t hat t he f undament al r i ght t o mar r y i ncl udes t he
unr est r i ct ed r i ght t o mar r y whomever one chooses, as t he
82

pl ai nt i f f s cl ai m. I ndeed, Lovi ng expl i ci t l y r el i ed on Ski nner
and Mur phy, and bot h of t hose cases di scussed mar r i age i n
t r adi t i onal , pr ocr eat i ve t er ms. I d.
Thi s r eadi ng of Lovi ng i s f or t i f i ed by t he Cour t s summar y
di smi ssal of Baker v. Nel son, 191 N. W. 2d 185 ( Mi nn. 1971) ,
appeal di smi ssed, 409 U. S. 810 ( 1972) , j ust f i ve year s af t er
Lovi ng was deci ded. I n Baker , t he Mi nnesot a Supr eme Cour t
i nt er pr et ed a st at e st at ut e s use of t he t er m mar r i age t o be
one of common usage meani ng a uni on bet ween per sons of t he
opposi t e sex and t hus not i ncl udi ng same- sex mar r i age. I d. at
186. On appeal , t he Supr eme Cour t di smi ssed t he case summar i l y
f or want of a subst ant i al f eder al quest i on. 409 U. S. at 810.
The Cour t s act i on i n cont ext i ndi cat es t hat t he Cour t di d not
vi ew Lovi ng or t he cases t hat pr eceded i t as pr ovi di ng a
f undament al r i ght t o an unr est r i ct ed choi ce of mar r i age par t ner .
Ot her wi se, t he st at e cour t s deci si on i n Baker woul d i ndeed have
pr esent ed a subst ant i al f eder al quest i on.
I n shor t , Lovi ng si mpl y hel d t hat r ace, whi ch i s compl et el y
unr el at ed t o t he i nst i t ut i on of mar r i age, coul d not be t he basi s
of mar i t al r est r i ct i ons. See Lovi ng, 388 U. S. at 12. To
st r et ch Lovi ng s hol di ng t o say t hat t he r i ght t o mar r y i s not
l i mi t ed by gender and sexual or i ent at i on i s t o i gnor e t he
i next r i cabl e, bi ol ogi cal l i nk bet ween mar r i age and pr ocr eat i on
t hat t he Supr eme Cour t has al ways r ecogni zed. See Wi ndsor , 133
83

S. Ct . at 2689 ( r ecogni zi ng t hat t hr oughout hi st or y, mar r i age
bet ween a man and a woman no doubt had been t hought of by most
peopl e as essent i al t o t he ver y def i ni t i on of t hat t er m and t o
i t s r ol e and f unct i on) . The st at e r egul at i on st r uck down i n
Lovi ng, l i ke t hose i n Zabl ocki and Tur ner , had no r el at i onshi p
t o t he f oundat i onal pur poses of mar r i age, whi l e t he gender of
t he i ndi vi dual s i n a mar r i age cl ear l y does. Thus, t he maj or i t y
er r s, as di d t he di st r i ct cour t , by i nt er pr et i ng t he Supr eme
Cour t s mar r i age cases as est abl i shi ng a r i ght t hat i ncl udes
same- sex mar r i age.
The pl ai nt i f f s al so l ar gel y i gnor e t he pr obl em wi t h t hei r
posi t i on t hat i f t he f undament al r i ght t o mar r i age i s based on
t he const i t ut i onal l i ber t y t o sel ect t he par t ner of one s
choi ce, as t hey cont end, t hen t hat l i ber t y woul d al so ext end t o
i ndi vi dual s seeki ng st at e r ecogni t i on of ot her t ypes of
r el at i onshi ps t hat St at es cur r ent l y r est r i ct , such as pol ygamous
or i ncest uous r el at i onshi ps. Cf . Romer v. Evans, 517 U. S. 620,
648- 50 ( 1996) ( Scal i a, J . , di ssent i ng) . Such an ext ensi on woul d
be a r adi cal shi f t i n our under st andi ng of mar i t al
r el at i onshi ps. Laws r est r i ct i ng pol ygamy ar e f oundat i onal t o
t he Uni on i t sel f , havi ng been a condi t i on on t he ent r ance of
Ar i zona, New Mexi co, Okl ahoma, and Ut ah i nt o st at ehood. I d.
Whi l e t he pl ai nt i f f s do at t empt t o assur e us t hat such l aws ar e
saf e because t her e ar e wei ght y gover nment i nt er est s under l yi ng
84

t hem, such an ar gument does not bear on t he quest i on of whet her
t he r i ght i s f undament al . The gover nment s i nt er est s woul d
i nst ead be r el evant onl y t o whet her t he r est r i ct i on coul d meet
t he r equi si t e st andar d of r evi ew. And because l aws pr ohi bi t i ng
pol ygamous or i ncest uous mar r i ages r est r i ct i ndi vi dual s r i ght
t o choose whom t hey woul d l i ke t o mar r y, t hey woul d, under t he
pl ai nt i f f s appr oach, have t o be exami ned under st r i ct scr ut i ny.
Per haps t he gover nment s i nt er est woul d be st r ong enough t o
enabl e such l aws t o sur vi ve st r i ct scr ut i ny, but r egar dl ess,
t oday s deci si on woul d t r ul y be a sweepi ng one i f i t coul d be
under st ood t o mean t hat i ndi vi dual s have a f undament al r i ght t o
ent er i nt o a mar r i age wi t h any per son, or any peopl e, of t hei r
choosi ng.
At bot t om, t he f undament al r i ght t o mar r i age does not
i ncl ude a r i ght t o same- sex mar r i age. Under t he Gl ucksber g
anal ysi s t hat we ar e t hus bound t o conduct , t her e i s no new
f undament al r i ght t o same- sex mar r i age. Vi r gi ni a s l aws
r est r i ct i ng mar r i age t o man- woman r el at i onshi ps must t her ef or e
be uphel d i f t her e i s any r at i onal basi s f or t he l aws.

I I I

Under r at i onal - basi s r evi ew, cour t s ar e r equi r ed t o gi ve
heavy def er ence t o l egi sl at ur es. The st andar d
si mpl y r equi r es cour t s t o det er mi ne whet her t he
cl assi f i cat i on i n quest i on i s, at a mi ni mum,
85

r at i onal l y r el at ed t o l egi t i mat e gover nment al goal s.
I n ot her wor ds, t he f i t bet ween t he enact ment and t he
publ i c pur poses behi nd i t need not be mat hemat i cal l y
pr eci se. As l ong as [ t he l egi sl at ur e] has a
r easonabl e basi s f or adopt i ng t he cl assi f i cat i on,
whi ch can i ncl ude r at i onal specul at i on unsuppor t ed by
evi dence or empi r i cal dat a, t he st at ut e wi l l pass
const i t ut i onal must er . The r at i onal basi s st andar d
t hus embodi es an i dea cr i t i cal t o t he cont i nui ng
vi t al i t y of our democr acy: t hat cour t s ar e not
empower ed t o si t as a super l egi sl at ur e t o j udge t he
wi sdom or desi r abi l i t y of l egi sl at i ve pol i cy
det er mi nat i ons.
Wi l ki ns v. Gaddy, 734 F. 3d 344, 347- 48 ( 4t h Ci r . 2013) ( emphasi s
added) ( ci t at i ons omi t t ed) ( quot i ng FCC v. Beach Commc ns, I nc. ,
508 U. S. 307, 315 ( 1993) ; Ci t y of New Or l eans v. Dukes, 427 U. S.
297, 303 ( 1976) ) . St at ut es subj ect t o r at i onal - basi s r evi ew
bear [ ] a st r ong pr esumpt i on of val i di t y, and t hose at t acki ng
t he r at i onal i t y of t he l egi sl at i ve cl assi f i cat i on have t he
bur den t o negat i ve ever y concei vabl e basi s whi ch mi ght suppor t
[ t hem] . Beach Commc ns, 508 U. S. at 314- 15 ( emphasi s added)
( ci t at i on omi t t ed) ( quot i ng Lehnhausen v. Lake Shor e Aut o Par t s
Co. , 410 U. S. 356, 364 ( 1973) ) .
I n cont endi ng t hat t her e i s a r at i onal basi s f or i t s
mar r i age l aws, Vi r gi ni a has emphasi zed t hat chi l dr en ar e bor n
onl y t o one man and one woman and t hat mar r i age pr ovi des a
f ami l y st r uct ur e by whi ch t o nour i sh and r ai se t hose chi l dr en.
I t cl ai ms t hat a bi ol ogi cal f ami l y i s a mor e st abl e envi r onment ,
and i t r enounces any i nt er est i n encour agi ng same- sex mar r i age.
I t ar gues t hat t he pur pose of i t s mar r i age l aws i s t o channel
86

t he pr esumpt i ve pr ocr eat i ve pot ent i al of man- woman r el at i onshi ps
i nt o endur i ng mar i t al uni ons so t hat i f any chi l dr en ar e bor n,
t hey ar e mor e l i kel y t o be r ai sed i n st abl e f ami l y uni t s.
( Emphasi s omi t t ed) . Vi r gi ni a hi ghl i ght s especi al l y mar r i age s
t endency t o pr omot e st abi l i t y i n t he event of unpl anned
pr egnanci es, asser t i ng t hat i t has a compel l i ng i nt er est i n
addr essi ng t he par t i cul ar concer ns associ at ed wi t h t he bi r t h of
unpl anned chi l dr en. . . . [ C] hi l dr en bor n f r om unpl anned
pr egnanci es wher e t hei r mot her and f at her ar e not mar r i ed t o
each ot her ar e at si gni f i cant r i sk of bei ng r ai sed out si de
st abl e f ami l y uni t s headed by t hei r mot her and f at her j oi nt l y.
Vi r gi ni a st at es t hat i t s j ust i f i cat i ons f or pr omot i ng
t r adi t i onal mar r i age al so expl ai n i t s l ack of i nt er est i n
pr omot i ng same- sex mar r i age. I t mai nt ai ns t hat a t r adi t i onal
mar r i age i s excl usi vel y [ an] opposi t e- sex i nst i t ut i on
. . . i next r i cabl y l i nked t o pr ocr eat i on and bi ol ogi cal
ki nshi p, Wi ndsor , 133 S. Ct . at 2718 ( Al i t o, J . , di ssent i ng) ,
and t hat same- sex mar r i age pr i or i t i zes t he emot i ons and sexual
at t r act i ons of t he t wo par t ner s wi t hout any necessar y l i nk t o
r epr oduct i on. I t asser t s t hat i t has no i nt er est i n l i censi ng
adul t s l ove.
The pl ai nt i f f s accept t hat f ami l y st abi l i t y i s a l egi t i mat e
st at e goal , but t hey ar gue t hat l i censi ng same- sex r el at i onshi ps
wi l l not bur den Vi r gi ni a s achi evement of t hat goal . They
87

cont end t hat t her e i s si mpl y no evi dence or r eason t o bel i eve
t hat pr ohi bi t i ng gay men and l esbi ans f r om mar r yi ng wi l l
i ncr ease r esponsi bl e pr ocr eat i on among het er osexual s.
But t hi s ar gument does not negat e any of t he r at i onal
j ust i f i cat i ons f or Vi r gi ni a s l egi sl at i on. St at es ar e per mi t t ed
t o sel ect i vel y pr ovi de benef i t s t o onl y cer t ai n gr oups when
pr ovi di ng t hose same benef i t s t o ot her gr oups woul d not f ur t her
t he St at e s ul t i mat e goal s. See J ohnson v. Robi nson, 415 U. S.
361, 383 ( 1974) ( When . . . t he i ncl usi on of one gr oup pr omot es
a l egi t i mat e gover nment al pur pose, and t he addi t i on of ot her
gr oups woul d not , we cannot say t hat t he st at ut e' s
cl assi f i cat i on of benef i ci ar i es and nonbenef i ci ar i es i s
i nvi di ousl y di scr i mi nat or y) . Her e, t he Commonweal t h s goal of
ensur i ng t hat unpl anned chi l dr en ar e r ai sed i n st abl e homes i s
f ur t her ed onl y by of f er i ng t he benef i t s of mar r i age t o opposi t e-
sex coupl es. As Vi r gi ni a cor r ect l y asser t s, t he r el evant
i nqui r y her e i s not whet her excl udi ng same- sex coupl es f r om
mar r i age f ur t her s [ Vi r gi ni a s] i nt er est i n st eer i ng man- woman
coupl es i nt o mar r i age. Rat her , t he r el evant i nqui r y i s whet her
al so r ecogni zi ng same- sex mar r i ages woul d f ur t her Vi r gi ni a s
i nt er est s. Wi t h r egar d t o i t s i nt er est i n ensur i ng st abl e
f ami l i es i n t he event of unpl anned pr egnanci es, i t woul d not .
The pl ai nt i f f s r epl y t hat even i f t hi s i s so, such l i ne-
dr awi ng onl y makes sense i f t he r esour ces at i ssue ar e scar ce,
88

j ust i f yi ng t he St at e s l i mi t ed pr ovi si on of t hose r esour ces.
They ar gue t hat because [ m] ar r i age l i censes . . . ar e not a
r emot el y scar ce commodi t y, t he l i ne- dr awi ng done by Vi r gi ni a s
mar r i age l aws i s i r r at i onal . But t hi s f undament al l y
mi sunder st ands t he nat ur e of mar r i age benef i t s. When t he
Commonweal t h gr ant s a mar r i age, i t does not si mpl y gi ve t he
coupl e a pi ece of paper and a t i t l e. Rat her , i t pr ovi des a
subst ant i al subsi dy t o t he mar r i ed coupl e - - economi c benef i t s
t hat , t he pl ai nt i f f s r epeat edl y asser t , ar e bei ng deni ed t hem.
For exampl e, mar r i ed coupl es ar e per mi t t ed t o f i l e st at e i ncome
t axes j oi nt l y, l ower i ng t hei r t ax r at es. See Va. Code Ann.
58. 1- 324. Al t hough i ndi r ect , such benef i t s ar e cl ear l y
subsi di es t hat come at a cost t o t he Commonweal t h. Vi r gi ni a i s
wi l l i ng t o pr ovi de t hese subsi di es because t hey encour age
opposi t e- sex coupl es t o mar r y, whi ch t ends t o pr ovi de chi l dr en
f r om unpl anned pr egnanci es wi t h a mor e st abl e envi r onment .
Under J ohnson, t he Commonweal t h i s not obl i gat ed t o si mi l ar l y
subsi di ze same- sex mar r i ages, si nce doi ng so coul d not possi bl y
f ur t her i t s i nt er est . Thi s i s no di f f er ent f r om t he subsi di es
pr ovi ded i n ot her cases wher e t he Supr eme Cour t has uphel d l i ne-
dr awi ng, such as Medi car e benef i t s, Mat t hews v. Di az, 426 U. S.
67, 83- 84 ( 1976) , or vet er ans educat i onal benef i t s, J ohnson,
415 U. S. at 383.
89

As an addi t i onal ar gument , Vi r gi ni a mai nt ai ns t hat mar r i age
i s a [ c] ompl ex soci al i nst i t ut i on[ ] wi t h a set of nor ms,
r ul es, pat t er ns, and expect at i ons t hat power f ul l y ( al bei t of t en
unconsci ousl y) af f ect peopl e s choi ces, act i ons, and
per spect i ves. I t asser t s t hat di scar di ng t he t r adi t i onal
def i ni t i on of mar r i age wi l l have f ar - r eachi ng consequences t hat
cannot easi l y be pr edi ct ed, i ncl udi ng sever [ i ng] t he i nher ent
l i nk bet ween pr ocr eat i on . . . and mar r i age . . . [ and] i n
t ur n . . . power f ul l y convey[ i ng] t hat mar r i age exi st s t o
advance adul t desi r es r at her t han [ t o] ser v[ e] chi l dr en s
needs.
The pl ai nt i f f s agr ee t hat changi ng t he def i ni t i on of
mar r i age may have unf or eseen soci al ef f ect s, but t hey ar gue t hat
such pr edi ct i ons shoul d not be enough t o save Vi r gi ni a s
mar r i age l aws because si mi l ar j ust i f i cat i ons wer e r ej ect ed i n
Lovi ng. The Lovi ng Cour t , however , was not appl yi ng r at i onal -
basi s r evi ew. See Lovi ng, 388 U. S. at 11- 12. We ar e on a
di f f er ent f oot i ng her e. Under r at i onal - basi s r evi ew,
l egi sl at i ve choi ces may be based on r at i onal specul at i on
unsuppor t ed by evi dence or empi r i cal dat a. Beach Commc ns, 508
U. S. at 315. Sound pol i cymaki ng of t en r equi r es l egi sl at or s t o
f or ecast f ut ur e event s and t o ant i ci pat e t he l i kel y i mpact of
t hese event s based on deduct i ons and i nf er ences f or whi ch
compl et e empi r i cal suppor t may be unavai l abl e. Tur ner Br oad.
90

Sys. , I nc. v. FCC, 512 U. S. 622, 665 ( 1994) ( pl ur al i t y opi ni on) .
And t he l egi sl at ur e i s f ar bet t er equi pped t han t he j udi ci ar y
t o make t hese eval uat i ons and ul t i mat el y deci de on a cour se of
act i on based on i t s pr edi ct i ons. I d. at 665- 66. I n enact i ng
i t s mar r i age l aws, Vi r gi ni a pr edi ct ed t hat changi ng t he
def i ni t i on of mar r i age woul d have a negat i ve ef f ect on chi l dr en
and on t he f ami l y st r uct ur e. Al t hough ot her St at es do not shar e
t hose concer ns, such eval uat i ons wer e nonet hel ess squar el y
wi t hi n t he pr ovi nce of t he Commonweal t h s l egi sl at ur e and i t s
ci t i zens, who vot ed t o amend Vi r gi ni a s Const i t ut i on i n 2006.
Vi r gi ni a has undoubt edl y ar t i cul at ed suf f i ci ent r at i onal
bases f or i t s mar r i age l aws, and I woul d f i nd t hat t hose bases
const i t ut i onal l y j ust i f y t he l aws. Those l aws ar e gr ounded on
t he bi ol ogi cal connect i on of men and women; t he pot ent i al f or
t hei r havi ng chi l dr en; t he f ami l y or der needed i n r ai si ng
chi l dr en; and, on a l ar ger scal e, t he pol i t i cal or der r esul t i ng
f r om st abl e f ami l y uni t s. Mor eover , I woul d add t hat t he
t r adi t i onal mar r i age r el at i onshi p encour ages a f ami l y st r uct ur e
t hat i s i nt er gener at i onal , gi vi ng chi l dr en not onl y a st r uct ur e
i n whi ch t o be r ai sed but al so an i dent i t y and a st r ong
r el at i onal cont ext . The mar r i age of a man and a woman t hus
r at i onal l y pr omot es a cor r el at i on bet ween bi ol ogi cal or der and
pol i t i cal or der . Because Vi r gi ni a s mar r i age l aws ar e
91

r at i onal l y r el at ed t o i t s l egi t i mat e pur poses, t hey wi t hst and
r at i onal - basi s scr ut i ny under t he Due Pr ocess Cl ause.

I V

The maj or i t y does not subst ant i vel y addr ess t he pl ai nt i f f s
second ar gument - - t hat Vi r gi ni a s mar r i age l aws i nvi di ousl y
di scr i mi nat e on t he basi s of sexual or i ent at i on, i n vi ol at i on of
t he Equal Pr ot ect i on Cl ause - - si nce i t f i nds t hat t he l aws
i nf r i nge on t he pl ai nt i f f s f undament al r i ght t o mar r i age. But
because I f i nd no f undament al r i ght i s i nf r i nged by t he l aws, I
al so addr ess di scr i mi nat i on under t he Equal Pr ot ect i on Cl ause.
The Equal Pr ot ect i on Cl ause, whi ch f or bi ds any St at e f r om
deny[ i ng] t o any per son wi t hi n i t s j ur i sdi ct i on t he equal
pr ot ect i on of t he l aws, U. S. Const . amend. XI V, 1, pr ohi bi t s
i nvi di ous di scr i mi nat i on among cl asses of per sons. Some
cl assi f i cat i ons - - such as t hose based on r ace, al i enage, or
nat i onal or i gi n - - ar e so sel domr el evant t o t he achi evement of
any l egi t i mat e st at e i nt er est t hat l aws gr ounded i n such
consi der at i ons ar e deemed t o r ef l ect pr ej udi ce and ant i pat hy - -
a vi ew t hat t hose i n t he bur dened cl ass ar e not as wor t hy or
deser vi ng as ot her s. Ci t y of Cl ebur ne v. Cl ebur ne Li vi ng Ct r . ,
473 U. S. 432, 440 ( 1985) . Any l aws based on such suspect
cl assi f i cat i ons ar e subj ect t o st r i ct scr ut i ny. See i d. I n a
si mi l ar vei n, cl assi f i cat i ons based on gender ar e quasi -
92

suspect and cal l f or i nt er medi at e scr ut i ny because t hey
f r equent l y bear [ ] no r el at i on t o abi l i t y t o per f or m or
cont r i but e t o soci et y and t hus gener al l y pr ovi de[ ] no sensi bl e
gr ound f or di f f er ent i al t r eat ment . I d. at 440- 41 ( quot i ng
Fr ont i er o v. Ri char dson, 411 U. S. 677, 686 ( 1973) ( pl ur al i t y
opi ni on) ) ; see al so Cr ai g v. Bor en, 429 U. S. 190, 197 ( 1976) .
Laws subj ect t o i nt er medi at e scr ut i ny must be subst ant i al l y
r el at ed t o an i mpor t ant gover nment obj ect i ve. See Uni t ed St at es
v. Vi r gi ni a, 518 U. S. 515, 533 ( 1996) .
But when a r egul at i on adver sel y af f ect s member s of a cl ass
t hat i s not suspect or quasi - suspect , t he r egul at i on i s
pr esumed t o be val i d and wi l l be sust ai ned i f t he
cl assi f i cat i on dr awn by t he st at ut e i s r at i onal l y r el at ed t o a
l egi t i mat e st at e i nt er est . Ci t y of Cl ebur ne, 473 U. S. at 440
( emphasi s added) . Mor eover , t he Supr eme Cour t has made i t cl ear
t hat
wher e i ndi vi dual s i n t he gr oup af f ect ed by a l aw have
di st i ngui shi ng char act er i st i cs r el evant t o i nt er est s
t he St at e has t he aut hor i t y t o i mpl ement , t he cour t s
have been ver y r el uct ant , as t hey shoul d be i n our
f eder al syst em and wi t h our r espect f or t he separ at i on
of power s, t o cl osel y scr ut i ni ze l egi sl at i ve choi ces
as t o whet her , how, and t o what ext ent t hose i nt er est s
shoul d be pur sued. I n such cases, t he Equal
Pr ot ect i on Cl ause r equi r es onl y a r at i onal means t o
ser ve a l egi t i mat e end.
I d. at 441- 42 ( emphasi s added) . Thi s i s based on t he
under st andi ng t hat equal pr ot ect i on of t he l aws must coexi st
93

wi t h t he pr act i cal necessi t y t hat most l egi sl at i on cl assi f i es
f or one pur pose or anot her , wi t h r esul t i ng di sadvant age t o
var i ous gr oups or per sons. Romer , 517 U. S. at 631.
The pl ai nt i f f s cont end t hat Vi r gi ni a s mar r i age l aws shoul d
be subj ect ed t o some l evel of hei ght ened scr ut i ny because t hey
di scr i mi nat e on t he basi s of sexual or i ent at i on. Yet t hey
concede t hat nei t her t he Supr eme Cour t nor t he Four t h Ci r cui t
has ever appl i ed hei ght ened scr ut i ny t o a cl assi f i cat i on based
on sexual or i ent at i on. They ur ge t hi s cour t t o do so f or t he
f i r st t i me. Gover ni ng pr ecedent , however , counsel s ot her wi se.
I n Romer v. Evans, t he Supr eme Cour t di d not empl oy any
hei ght ened l evel of scr ut i ny i n eval uat i ng a Col or ado
const i t ut i onal amendment t hat pr ohi bi t ed st at e and l ocal
gover nment s f r om enact i ng l egi sl at i on t hat woul d al l ow per sons
t o cl ai m any mi nor i t y st at us, quot a pr ef er ences, pr ot ect ed
st at us, or . . . di scr i mi nat i on based on sexual or i ent at i on.
Romer , 517 U. S. at 624. I n hol di ng t he amendment
unconst i t ut i onal under t he Equal Pr ot ect i on Cl ause, t he Cour t
appl i ed r at i onal - basi s r evi ew. See i d. at 631- 33.
And t he Supr eme Cour t made no change as t o t he appr opr i at e
l evel of scr ut i ny i n i t s mor e r ecent deci si on i n Wi ndsor , whi ch
hel d Sect i on 3 of t he Def ense of Mar r i age Act unconst i t ut i onal .
The Cour t was pr esent ed an oppor t uni t y t o al t er t he Romer
st andar d but di d not do so. Al t hough i t di d not st at e t he l evel
94

of scr ut i ny bei ng appl i ed, i t di d expl i ci t l y r el y on r at i onal -
basi s cases l i ke Romer and Depar t ment of Agr i cul t ur e v. Mor eno,
413 U. S. 528 ( 1973) . See Wi ndsor , 133 S. Ct . at 2693. I n hi s
di ssent i ng opi ni on i n Wi ndsor , J ust i ce Scal i a t hus not ed, As
near l y as I can t el l , t he Cour t agr ees [ t hat r at i onal - basi s
r evi ew appl i es] ; i t s opi ni on does not appl y st r i ct scr ut i ny, and
i t s cent r al pr oposi t i ons ar e t aken f r om r at i onal - basi s cases
l i ke Mor eno. I d. at 2706 ( Scal i a, J . , di ssent i ng) .
Fi nal l y, we have concl uded t hat r at i onal - basi s r evi ew
appl i es t o cl assi f i cat i ons based on sexual or i ent at i on. See
Veney v. Wyche, 293 F. 3d 726, 731- 32 ( 4t h Ci r . 2002) . I n Veney,
a pr i soner f i l ed a 1983 act i on al l egi ng t hat he had been
di scr i mi nat ed agai nst on t he basi s of sexual pr ef er ence and
gender . I d. at 729- 30. We not ed t hat t he pl ai nt i f f [ di d] not
al l ege t hat he [ was] a member of a suspect cl ass. Rat her , he
cl ai m[ ed] t hat he ha[ d] been di scr i mi nat ed agai nst on t he basi s
of sexual pr ef er ence and gender . Out si de t he pr i son cont ext ,
t he f or mer i s subj ect t o r at i onal basi s r evi ew, see Romer v.
Evans, 517 U. S. 620, 631- 32 ( 1996) . I d. at 731- 32 ( f oot not e
omi t t ed) .
The vast maj or i t y of ot her cour t s of appeal s have r eached
t he same concl usi on. See Cook v. Gat es, 528 F. 3d 42, 61 ( 1st
Ci r . 2008) ( Romer nowher e suggest ed t hat t he Cour t r ecogni zed a
new suspect cl ass. Absent addi t i onal gui dance f r om t he Supr eme
95

Cour t , we j oi n our si st er ci r cui t s i n decl i ni ng t o r ead Romer as
r ecogni zi ng homosexual s as a suspect cl ass f or equal pr ot ect i on
pur poses) ; Pr i ce- Cor nel i son v. Br ooks, 524 F. 3d 1103, 1113- 14 &
n. 9 ( 10t h Ci r . 2008) ( A gover nment of f i ci al
can . . . di st i ngui sh bet ween i t s ci t i zens on t he basi s of
sexual or i ent at i on, i f t hat cl assi f i cat i on bear s a r at i onal
r el at i on t o some l egi t i mat e end ( i nt er nal quot at i on mar ks
omi t t ed) ) ; Ci t i zens f or Equal Pr ot . v. Br uni ng, 455 F. 3d 859,
865- 66 ( 8t h Ci r . 2006) ( di scussi ng Romer and r eachi ng t he
concl usi on t hat [ t ] hough t he most r el evant pr ecedent s ar e
mur ky, we concl ude f or a number of r easons t hat [ Nebr aska s
same- sex mar r i age ban] shoul d r ecei ve r at i onal - basi s r evi ew
under t he Equal Pr ot ect i on Cl ause, r at her t han a hei ght ened
l evel of j udi ci al scr ut i ny) ; J ohnson v. J ohnson, 385 F. 3d 503,
532 ( 5t h Ci r . 2004) ( [ A] st at e vi ol at es t he Equal Pr ot ect i on
Cl ause i f i t di sadvant ages homosexual s f or r easons l acki ng any
r at i onal r el at i onshi p t o l egi t i mat e gover nment al ai ms) ; Lof t on
v. Sec y of Dep t of Chi l dr en & Fami l y Ser vs. , 358 F. 3d 804, 818
( 11t h Ci r . 2004) ( [ A] l l of our si st er ci r cui t s t hat have
consi der ed t he quest i on have decl i ned t o t r eat homosexual s as a
suspect cl ass. Because t he pr esent case i nvol ves nei t her a
f undament al r i ght nor a suspect cl ass, we r evi ew
t he . . . st at ut e under t he r at i onal - basi s st andar d ( f oot not e
omi t t ed) ) ; Equal . Found. of Gr eat er Ci nci nnat i , I nc. v. Ci t y of
96

Ci nci nnat i , 128 F. 3d 289, 294, 300 ( 6t h Ci r . 1997) ( appl yi ng
r at i onal - basi s r evi ew i n uphol di ng a ci t y char t er amendment
r est r i ct i ng homosexual r i ght s and st at i ng t hat i n Romer , t he
Cour t di d not assess Col or ado Amendment 2 under st r i ct
scr ut i ny or i nt er medi at e scr ut i ny st andar ds, but i nst ead
ul t i mat el y appl i ed r at i onal r el at i onshi p st r i ct ur es t o t hat
enact ment and r esol ved t hat t he Col or ado st at e const i t ut i onal
pr ovi si on di d not i nvade any f undament al r i ght and di d not
t ar get any suspect cl ass or quasi - suspect cl ass) ; Ben- Shal om v.
Mar sh, 881 F. 2d 454, 464 ( 7t h Ci r . 1989) ( appl yi ng r at i onal -
basi s r evi ew pr i or t o t he announcement of Romer ) ; Woodwar d v.
Uni t ed St at es, 871 F. 2d 1068, 1076 ( Fed. Ci r . 1989) ( The
Supr eme Cour t has i dent i f i ed onl y t hr ee suspect cl asses: r aci al
st at us, nat i onal ancest r y and et hni c or i gi nal , and al i enage.
Two ot her cl assi f i cat i ons have been i dent i f i ed by t he Cour t as
quasi - suspect : gender and i l l egi t i macy. [ Pl ai nt i f f ] woul d have
t hi s cour t add homosexual i t y t o t hat l i st . Thi s we decl i ne t o
do ( ci t at i ons and f oot not e omi t t ed) ) . But see Smi t hKl i ne
BeechamCor p. v. Abbot t Labs. , 740 F. 3d 471, 481 ( 9t h Ci r . 2014)
( appl yi ng hei ght ened scr ut i ny t o a Bat son chal l enge t hat was
based on sexual or i ent at i on) ; Wi ndsor v. Uni t ed St at es, 699 F. 3d
169, 180- 85 ( 2d Ci r . 2012) ( f i ndi ng i nt er medi at e scr ut i ny
appr opr i at e i n assessi ng t he const i t ut i onal i t y of Sect i on 3 of
t he Def ense of Mar r i age Act ) .
97

Thus, f ol l owi ng Supr eme Cour t and Four t h Ci r cui t pr ecedent ,
I woul d hol d t hat Vi r gi ni a s mar r i age l aws ar e subj ect t o
r at i onal - basi s r evi ew. Appl yi ng t hat st andar d, I concl ude t hat
t her e i s a r at i onal basi s f or t he l aws, as expl ai ned i n Par t
I I I , above. At bot t om, I agr ee wi t h J ust i ce Al i t o s r easoni ng
t hat [ i ] n aski ng t he cour t t o det er mi ne t hat [ Vi r gi ni a s
mar r i age l aws ar e] subj ect t o and vi ol at e[ ] hei ght ened scr ut i ny,
[ t he pl ai nt i f f s] t hus ask us t o r ul e t hat t he pr esence of t wo
member s of t he opposi t e sex i s as r at i onal l y r el at ed t o mar r i age
as whi t e ski n i s t o vot i ng or a Y- chr omosome i s t o t he abi l i t y
t o admi ni st er an est at e. That i s a st r i ki ng r equest and one
t hat unel ect ed j udges shoul d pause bef or e gr ant i ng. Wi ndsor ,
133 S. Ct . at 2717- 18 ( Al i t o, J . , di ssent i ng) .

V

Whet her t o r ecogni ze same- sex mar r i age i s an ongoi ng and
hi ghl y engaged pol i t i cal debat e t aki ng pl ace acr oss t he Nat i on,
and t he St at es ar e di vi ded on t he i ssue. The maj or i t y of cour t s
have st r uck down st at ut es t hat deny r ecogni t i on of same- sex
mar r i age, doi ng so al most excl usi vel y on t he i dea t hat same- sex
mar r i age i s encompassed by t he f undament al r i ght t o mar r y t hat
i s pr ot ect ed by t he Due Pr ocess Cl ause. Whi l e I expr ess no
vi ewpoi nt on t he mer i t s of t he pol i cy debat e, I do st r ongl y
di sagr ee wi t h t he asser t i on t hat same- sex mar r i age i s subj ect t o
98

t he same const i t ut i onal pr ot ect i ons as t he t r adi t i onal r i ght t o
mar r y.
Because t her e i s no f undament al r i ght t o same- sex mar r i age
and t her e ar e r at i onal r easons f or not r ecogni zi ng i t , j ust as
t her e ar e r at i onal r easons f or r ecogni zi ng i t , I concl ude t hat
we, i n t he Thi r d Br anch, must al l ow t he St at es t o enact
l egi sl at i on on t he subj ect i n accor dance wi t h t hei r pol i t i cal
pr ocesses. The U. S. Const i t ut i on does not , i n my j udgment ,
r est r i ct t he St at es pol i cy choi ces on t hi s i ssue. I f gi ven t he
choi ce, some St at es wi l l sur el y r ecogni ze same- sex mar r i age and
some wi l l sur el y not . But t hat i s, t o be sur e, t he beaut y of
f eder al i sm.
I woul d r ever se t he di st r i ct cour t s j udgment and def er t o
Vi r gi ni a s pol i t i cal choi ce i n def i ni ng mar r i age as onl y bet ween
one man and one woman.

United States District Court, W.D. Kentucky,
at Louisiville.
Gregory BOURKE, et al., Plaintiffs
v.
Steve BESHEAR, et al., Defendants.
Civil Action No. 3:13CV750H.
Signed Feb. 12, 2014.
Opinion Continuing Stay March 19, 2014.
Background: Four same-sex couples validly mar-
ried outside Kentucky brought 1983 action chal-
lenging constitutionality of Kentucky's denial of re-
cognition for valid same-sex marriages.
Holdings: The District Court, John G. Heyburn II,
J., held that:
(1) rational basis review applied;
(2) Kentucky's failure to recognize marriages of
same-sex couples validly married outside of Ken-
tucky treated gay and lesbian persons differently in
a way that demeaned them; and
(3) Kentucky's interest in preserving state's institu-
tion of traditional marriage, standing alone, was
not rational basis.
Judgment for plaintiffs.
West Headnotes
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and Civil Uni-
ons. Most Cited Cases
Rational basis review applied in 1983 action
by same-sex couples validly married outside Ken-
tucky, alleging Kentucky's denial of recognition for
their marriages violated Fourteenth Amendment
equal protection. U.S.C.A. Const.Amend. 14; Ky.
Const. 233A; 42 U.S.C.A. 1983; KRS 402.005,
402.020(1)(d), 402.040(2), 402.045.
Marriage 253 2
253 Marriage
253k2 k. Power to Regulate and Control. Most
Cited Cases
Marriage 253 17.5(2)
253 Marriage
253k17.5 Same-Sex and Other Non-Traditional
Unions
253k17.5(2) k. Effect of Foreign Union.
Most Cited Cases
Kentucky's failure to recognize marriages of
same-sex couples validly married outside of Ken-
tucky treated gay and lesbian persons differently in
a way that demeaned them, for purposes of 1983
action by same-sex couples, alleging violations of
Fourteenth Amendment equal protection; Kentucky
law identified subset of marriages and made them
unequal, and law burdened same-sex spouses by
preventing them from receiving certain state and
federal benefits afforded to other married couples.
U.S.C.A. Const.Amend. 14; Ky. Const. 233A; 42
U.S.C.A. 1983; KRS 402.005, 402.020(1)(d),
402.040(2), 402.045.
Page 1
--- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.)
(Cite as: 2014 WL 556729 (W.D.Ky.))
Marriage 253 2
253 Marriage
253k2 k. Power to Regulate and Control. Most
Cited Cases
253 Marriage
Unions
Most Cited Cases
Kentucky's interest in preserving state's insti-
tution of traditional marriage, standing alone, was
not rational basis required to justify state's failure to
recognize marriages of same-sex couples validly
married outside of Kentucky, and, therefore, those
provisions of Kentucky law were unconstitutional
as in violation of Fourteenth Amendment equal pro-
tection; that governing majority traditionally
viewed practice as immoral was not sufficient reas-
on for upholding laws prohibiting that practice.
U.S.C.A. Const.Amend. 14; Ky. Const. 233A;
KRS 402.005, 402.020(1)(d), 402.040(2), 402.045.
92XX Separation of Powers
92XX(C) Judicial Powers and Functions
92XX(C)1 In General
92k2450 k. Nature and Scope in Gen-
eral. Most Cited Cases
It is emphatically the province and duty of the
judicial department to say what the law is.
170B Federal Courts
170BXVII Courts of Appeals
170BXVII(F) Supersedeas or Stay of Pro-
ceedings
170Bk3463 k. Other Particular Cases.
Most Cited Cases
Order overturning Kentucky's denial of recog-
nition of valid same-sex marriages performed out-
side Kentucky would be stayed pending appeal to
the Court of Appeals; implementing the order
would have dramatic effects, and risk confusion if
it were later reversed. Fed.Rules Civ.Proc.Rule 62,
28 U.S.C.A.
170B Federal Courts
ceedings
170Bk3461 k. In General. Most Cited
Cases
In determining whether to stay its own judg-
ment or order, the court will consider the following
factors: (1) whether the stay applicant has made a
strong showing of likelihood of success on the mer-
its; (2) whether the applicant will be irreparably in-
jured absent a stay; (3) whether the issuance of a
stay will substantially injure other parties interested
in the proceedings; and (4) where the public interest
lies. Fed.Rules Civ.Proc.Rule 62, 28 U.S.C.A.
170B Federal Courts
ceedings
170Bk3461 k. In General. Most Cited
Cases
The loss of a constitutional right for even min-
imal periods of time constitutes irreparable harm, in
determining whether to stay an order or judgment
pending appeal. Fed.Rules Civ.Proc.Rule 62, 28
U.S.C.A.
West Codenotes
Page 2
--- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.)
(Cite as: 2014 WL 556729 (W.D.Ky.))
Held UnconstitutionalKy. Const. 233A, KRS
402.005, 402.020(1)(d), 402.040(2), 402.045.Dawn
R. Elliott, Fauver Law Office, Daniel J. Canon,
Laura E. Landenwich, Leonard J. Dunman, IV,
Louis Paz Winner, Clay Daniel Walton Adams
PLC, Shannon Renee Fauver, Fauver Law Office,
Louisville, KY, for Plaintiffs.
Brian Thomas Judy, Clay A. Barkley, Kentucky At-
torney GeneralCivil & Environmental Law Div.,
Frankfort, KY, for Defendants.
MEMORANDUM OPINION
JOHN G. HEYBURN II, District Judge.
*1 Four same-sex couples validly married out-
side Kentucky have challenged the constitutionality
of Kentucky's constitutional and statutory provi-
sions that exclude them from the state recognition
and benefits of marriage available to similarly situ-
ated opposite-sex couples.
While Kentucky unquestionably has the power
to regulate the recognition of civil marriages, those
regulations must comply with the Constitution of
the United States. This court's role is not to impose
its own political or policy judgments on the Com-
monwealth or its people. Nor is it to question the
importance and dignity of the institution of mar-
riage as many see it. Rather, it is to discuss the be-
nefits and privileges that Kentucky attaches to mar-
ital relationships and to determine whether it does
so lawfully under our federal constitution.
From a constitutional perspective, the question
here is whether Kentucky can justifiably deny
same-sex spouses the recognition and attendant be-
nefits it currently awards opposite-sex spouses. For
those not trained in legal discourse, the questions
may be less logical and more emotional. They con-
cern issues of faith, beliefs, and traditions. Our
Constitution was designed both to protect religious
beliefs and prevent unlawful government discrimin-
ation based upon them. The Court will address all
of these issues.
In the end, the Court concludes that Kentucky's
denial of recognition for valid same-sex marriages
violates the United States Constitution's guarantee
of equal protection under the law, even under the
most deferential standard of review. Accordingly,
Kentucky's statutes and constitutional amendment
that mandate this denial are unconstitutional.
I.
No case of such magnitude arrives absent im-
portant history and narrative. That narrative neces-
sarily discusses (1) society's evolution on these is-
sues, (2) a look at those who now demand their
constitutional rights, and (3) an explication of their
claims. For most of Kentucky's history, the limita-
tion of marriage to opposite-sex couples was as-
sumed and unchallenged. Those who might have
disagreed did so in silence. But gradual changes in
our society, political culture and constitutional un-
derstandings have encouraged some to step forward
and assert their rights.
A.
In 1972, two Kentucky women stepped forward
to apply for a marriage license. The Kentucky Su-
preme Court ruled that they were not entitled to
one, noting that Kentucky statutes included neither
a definition of marriage nor a prohibition on
same-sex marriage. Jones v. Hallahan, 501 S.W.2d
588, 589 (Ky.App.1973). The court defined
marriage according to common usage, consulting
several dictionaries. It held that no constitutional is-
sue was involved and concluded, In substance, the
relationship proposed ... is not a marriage. Id. at
590. This view was entirely consistent with the
then-prevailing state and federal jurisprudence. See
Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185,
187 (1971), appeal dismissed for want of a substan-
tial federal question, 409 U.S. 810, 93 S.Ct. 37, 34
L.Ed.2d 65 (1972); Anonymous v. Anonymous, 67
Misc.2d 982, 325 N.Y.S.2d 499, 501 (N.Y.Spec.
Term 1971). A lot has changed since then.
Twenty-one long years later, the Hawaii Su-
preme Court first opened the door to same-sex mar-
riage. See Baehr v. Lewin, 74 Haw. 530, 852 P.2d
Page 3
--- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.)
(Cite as: 2014 WL 556729 (W.D.Ky.))
44, 61 (1993) (ruling that the state's prohibition on
same-sex marriage was discriminatory under the
Hawaii Constitution and remanding to allow the
state to justify its position). The reaction was im-
mediate and visceral. In the next few years, twenty-
seven states passed anti-same-sex marriage legisla-
tion,
FN1
and Congress passed the Defense of Mar-
riage Act (DOMA).
FN2
*2 In 1998, Kentucky became one of those
states, enacting new statutory provisions that (1)
defined marriage as between one man and one wo-
man, K.R.S. 402.005; (2) prohibited marriage
between members of the same sex, K.R.S.
402.020(1)(d); (3) declared same-sex marriages
contrary to Kentucky public policy, K.R.S.
402.040(2); and (4) declared same-sex marriages
solemnized out of state void and the accompanying
rights unenforceable, K.R.S. 402.045.
FN3
Five years later, the Massachusetts Supreme
Judicial Court declared that the state's own ban on
same-sex marriage violated their state constitu-
tion. Goodridge v. Dep't of Pub. Health, 440
Mass. 309, 798 N.E.2d 941, 969 (2003). In May
2004, Massachusetts began marrying same-sex
couples. In response, anti-same-sex marriage ad-
vocates in many states initiated campaigns to enact
constitutional amendments to protect traditional
marriage.
FN4
Like-minded Kentuckians began a similar cam-
paign, arguing that although state law already pro-
hibited same-sex marriage, a constitutional amend-
ment would foreclose any possibility that a future
court ruling would allow same-sex marriages to be
performed or recognized in Kentucky. See S. DE-
BATE, 108TH CONG., 2ND SESS. (Ky. 2004),
ECF No. 386. The legislature placed such an
amendment on the ballot. It contained only two sen-
tences:
Only a marriage between one man and one wo-
man shall be valid or recognized as a marriage in
Kentucky. A legal status identical or substantially
similar to that of marriage for unmarried indi-
viduals shall not be valid or recognized.
KY. CONST. 233A. Consequently, the
amendment and Kentucky's statutes have much the
same effect. On November 2, 2004, approximately
74% of participating voters approved the Amend-
ment.
FN5
Kentucky's same-sex marriage legal framework
has not changed since. In the last decade, however,
a virtual tidal wave of legislative enactments and
judicial judgments in other states have repealed, in-
validated, or otherwise abrogated state laws re-
stricting same-sex couples' access to marriage and
marriage recognition.
FN6
B.
In many respects, Plaintiffs here are average,
stable American families.
Gregory Bourke and Michael Deleon reside in
Louisville, Kentucky and have been together for 31
years. They were lawfully married in Ontario,
Canada in 2004 and have two minor children who
are also named Plaintiffs: a 14yearold girl; and a
15yearold boy. Jimmy Meade and Luther Bar-
lowe reside in Bardstown, Kentucky and have been
together 44 years. They were lawfully married in
Davenport, Iowa in 2009. Randell Johnson and Paul
Campion reside in Louisville, Kentucky and have
been together for 22 years. They were lawfully
married in Riverside, California in 2008 and have
four minor children who are named Plaintiffs: twin
18yearold boys; a 14yearold boy; and a
10yearold girl. Kimberly Franklin and Tamera
Boyd reside in Cropper, Kentucky.
FN7
They were
lawfully married in Stratford, Connecticut in 2010.
Collectively, they assert that Kentucky's legal
framework denies them certain rights and benefits
that validly married opposite-sex couples enjoy. For
instance, a same-sex surviving spouse has no right
to an inheritance tax exemption and thus must pay
higher death taxes. They are not entitled to the
same healthcare benefits as opposite-sex couples; a
same-sex spouse must pay to add their spouse to
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--- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.)
(Cite as: 2014 WL 556729 (W.D.Ky.))
their employer-provided health insurance, while op-
posite-sex spouses can elect this option free of
charge. Same-sex spouses and their children are ex-
cluded from intestacy laws governing the disposi-
tion of estate assets upon death. Same-sex spouses
and their children are precluded from recovering
loss of consortium damages in civil litigation fol-
lowing a wrongful death. Under Kentucky's work-
ers compensation law, same-sex spouses have no
legal standing to sue and recover as a result of their
spouse's fatal workplace injury.
*3 Moreover, certain federal protections are
available only to couples whose marriage is legally
recognized by their home state. For example, a
same-sex spouse in Kentucky cannot take time off
work to care for a sick spouse under the Family
Medical Leave Act. 29 C.F.R. 825.122(b). In ad-
dition, a same-sex spouse in Kentucky is denied ac-
cess to a spouse's social security benefits. 42 U.S.C.
416(h)(1)(A)(i). No one denies these disparities.
Finally, Plaintiffs assert additional non-
economic injuries as well. They say that Kentucky's
laws deny them a dignity and status of immense
import, stigmatize them, and deny them the stabil-
izing effects of marriage that helps keep couples to-
gether. Plaintiffs also allege injuries to their chil-
dren including: (1) a reduction in family resources
due to the State's differential treatment of their par-
ents, (2) stigmatization resulting from the denial of
social recognition and respect, (3) humiliation, and
(4) harm from only one parent being able to be lis-
ted as an adoptive parentthe other being merely
their legal guardian.
C.
Plaintiffs advance six primary claims under 42
U.S.C. 1983:(1) deprivation of the fundamental
right to marry in violation of the Due Process
Clause of the Fourteenth Amendment; (2) discrim-
ination on the basis of sexual orientation in viola-
tion of the Equal Protection Clause of the Four-
teenth Amendment;
FN8
(3) discrimination against
same-sex couples in violation of the freedom of as-
sociation guaranteed by the First Amendment; (4)
failure to recognize valid public records of other
states in violation of the Full Faith and Credit
Clause of Article IV, Section 1; (5) deprivation of
the right to travel in violation of the Due Process
Clause of the Fourteenth Amendment; and (6) es-
tablishment of a religious definition of marriage in
violation of the Establishment Clause of the First
Amendment.
FN9
Plaintiffs seek an order enjoining
the State from enforcing the pertinent constitutional
and statutory provisions.
While Plaintiffs have many constitutional the-
ories, the Fourteenth Amendment's Equal Protec-
tion Clause provides the most appropriate analytical
framework.
FN10
If equal protection analysis de-
cides this case, the Court need not address any oth-
ers. No one disputes that the same-sex couples who
have brought this case are treated differently under
Kentucky law than those in comparable opposite-
sex marriages. No one seems to disagree that, as
presented here, the equal protection issue is purely
a question of law. The Court must decide whether
the Kentucky Constitution and statutes violate
Plaintiffs' federal constitutional rights.
II.
*4 [1] Before addressing the substance of equal
protection analysis, the Court must first determine
the applicable standard of review. Rational basis re-
view applies unless Kentucky's laws affect a sus-
pect class of individuals or significantly interfere
with a fundamental right. Zablocki v. Redhail, 434
U.S. 374, 388, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978)
.
A.
The Kentucky provisions challenged here im-
pose a classification based on sexual orientation.
Barely seven months ago, the Supreme Court issued
a historic opinion applying equal protection analys-
is to federal non-recognition of same-sex marriages.
United States v. Windsor, U.S. , 133 S.Ct.
2675, 186 L.Ed.2d 808 (2013).
FN11
Although the
majority opinion covered many topics, it never
clearly explained the applicable standard of review.
Some of Justice Kennedy's language corresponded
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to rational basis review. See id. at 2696 (no legit-
imate purpose overcomes the purpose and effect to
disparage and to injure....). However, the scrutiny
that the Court actually applied does not so much re-
semble it. See id. at 2706 (Scalia, J., dissenting)
(the majority does not apply strict scrutiny, and
[although] its central propositions are taken from
rational basis cases ... the Court certainly does not
apply anything that resembles that deferential
framework.) (emphasis in original). So, we are left
without a clear answer.
The Sixth Circuit has said that sexual orienta-
tion is not a suspect classification and thus is not
subject to heightened scrutiny. Davis v. Prison
Health Servs., 679 F.3d 433, 438 (6th Cir.2012)
(citing Scarbrough v. Morgan Cnty. Bd. of Educ.,
470 F.3d 250, 261 (6th Cir.2006)). Though Davis
concerned slightly different circumstances, it would
seem to limit the Court's independent assessment of
the question. Accord Bassett v. Snyder, 951
F.Supp.2d 939, 961 (E.D.Mich.2013).
It would be no surprise, however, were the
Sixth Circuit to reconsider its view. Several theor-
ies support heightened review. Davis based its de-
cision on a line of cases relying on Bowers v. Hard-
wick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140
(1986), which has since been overruled by
Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct.
2472, 156 L.Ed.2d 508 (2003) ( Bowers was not
correct when it was decided, and it is not correct
today.).
FN12
Recently, several courts, including
the Ninth Circuit, have held that classifications
based on sexual orientation are subject to
heightened scrutiny. See SmithKline Beecham
Corp. v. Abbott Labs., 740 F.3d 471, 483 (9th
Cir.2014) (finding that Windsor employed
heightened scrutiny).
Moreover, a number of reasons suggest that
gay and lesbian individuals do constitute a suspect
class. They seem to share many characteristics of
other groups that are afforded heightened scrutiny,
such as historical discrimination, immutable or dis-
tinguishing characteristics that define them as a dis-
crete group, and relative political powerlessness.
See Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct.
2727, 91 L.Ed.2d 527 (1986). Further, their com-
mon characteristic does not impair their ability to
contribute to society. See City of Cleburne, Tex. v.
S.Ct. 3249, 87 L.Ed.2d 313 (1985).
*5 All of these arguments have merit. To re-
solve the issue, however, the Court must look to
Windsor and the Sixth Circuit. In Windsor, no clear
majority of Justices stated that sexual orientation
was a suspect category.
B.
Supreme Court jurisprudence suggests that the
right to marry is a fundamental right. See Loving v.
Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d
1010 (1967) (Marriage is one of the basic civil
rights of man, fundamental to our existence and
survival (quoting Skinner v. Oklahoma ex rel. Wil-
liamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86
L.Ed. 1655 (1942))); Meyer v. Nebraska, 262 U.S.
390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (the
right to marry is a central part of Due Process
liberty); Maynard v. Hill, 125 U.S. 190, 205, 8
S.Ct. 723, 31 L.Ed. 654 (1888) (marriage creates
the most important relation in life). The right to
marry also implicates the right to privacy and the
right to freedom of association. Griswold v. Con-
necticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14
L.Ed.2d 510 (1965) (marriage involves a right of
privacy older than the Bill of Rights); M.L.B. v.
S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136
L.Ed.2d 473 (1996) (Choices about marriage ...
are among associational rights this Court has
ranked of basic importance in our society and
are protected under the Fourteenth Amendment
(quoting Boddie v. Connecticut, 401 U.S. 371, 376,
91 S.Ct. 780, 28 L.Ed.2d 113 (1971))).
Despite this comforting language, neither the
Supreme Court nor the Sixth Circuit has stated that
the fundamental right to marry includes a funda-
mental right to marry someone of the same sex.
Moreover, Plaintiffs do not seek the right to marry
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in Kentucky. Rather, they challenge the State's lack
of recognition for their validly solemnized mar-
riages.
FN13
To resolve the issue, the Court must again look
to Windsor. In Windsor, the Supreme Court did not
clearly state that the non-recognition of marriages
under Section 3 of DOMA implicated a fundament-
al right, much less significantly interfered with one.
Therefore, the Court will apply rational basis re-
view. Ultimately, the result in this case is unaf-
fected by the level of scrutiny applied.
C.
*6 Under this standard, the Court must determ-
ine whether these Kentucky laws are rationally re-
lated to a legitimate government purpose. Plaintiffs
have the burden to prove either that there is no con-
ceivable legitimate purpose for the law or that the
means chosen to effectuate a legitimate purpose are
not rationally related to that purpose. This standard
is highly deferential to government activity but is
surmountable, particularly in the context of dis-
crimination based on sexual orientation. Rational
basis review, while deferential, is not toothless.
Peoples Rights Org., Inc. v. City of Columbus, 152
F.3d 522, 532 (6th Cir.1998) (quoting Mathews v.
Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 49
L.Ed.2d 651 (1976)). This search for a rational rela-
tionship ensure[s] that classifications are not
drawn for the purpose of disadvantaging the group
burdened by the law. Romer v. Evans, 517 U.S.
620, 633, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).
Even under this most deferential standard of re-
view, courts must still insist on knowing the rela-
tion between the classification adopted and the ob-
ject to be attained. Id. at 632, 116 S.Ct. 1620
(emphasis added).
III.
In a democracy, the majority routinely enacts
its own moral judgments as laws. Kentucky's cit-
izens have done so here. Whether enacted by a le-
gislature or by public referendum, those laws are
subject to the guarantees of individual liberties con-
tained within the United States Constitution. Wind-
sor, 133 S.Ct. at 2691; see e.g., Loving, 388 U.S. at
12, 87 S.Ct. 1817 (statute prohibiting interracial
marriage violated equal protection).
Ultimately, the focus of the Court's attention
must be upon Justice Kennedy's majority opinion in
Windsor. While Justice Kennedy did not address
our specific issue, he did address many others
closely related. His reasoning about the legitimacy
of laws excluding recognition of same-sex mar-
riages is instructive. For the reasons that follow, the
Court concludes that Kentucky's laws are unconsti-
tutional.
A.
In Windsor, Justice Kennedy found that by
treating same-sex married couples differently than
opposite-sex married couples, Section 3 of DOMA
violate[d] basic due process and equal protection
principles applicable to the Federal Government.
Windsor, 133 S.Ct. at 2693. His reasoning estab-
lishes certain principles that strongly suggest the
result here.
FN14
[2] The first of those principles is that the actu-
al purpose of Kentucky's laws is relevant to this
analysis to the extent that their purpose and princip-
al effect was to treat two groups differently. Id. As
described so well by substituting our particular cir-
cumstances within Justice Kennedy's own words,
that principle applies quite aptly here:
[Kentucky's laws'] principal effect is to identify a
subset of state-sanctioned marriages and make
them unequal. The principal purpose is to impose
inequality, not for other reasons like government-
al efficiency.
*7 Id. at 2694. The legislative history of Ken-
tucky's laws clearly demonstrates the intent to per-
manently prevent the recognition of same-sex mar-
riage in Kentucky.
FN15
Whether that purpose also
demonstrates an obvious animus against same-sex
couples may be debatable. But those two motiva-
tions are often different sides of the same coin.
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The second principle is that such an amend-
ment demeans one group by depriving them of
rights provided for others. As Justice Kennedy
would say:
Responsibilities, as well as rights, enhance the
dignity and integrity of the person. And
[Kentucky's laws] contrive[ ] to deprive some
couples [married out of state], but not other
couples [married out of state], of both rights and
responsibilities. By creating two contradictory
marriage regimes within the same State,
[Kentucky's laws] force[ ] same-sex couples to
live as married for the purpose of [federal law]
but unmarried for the purpose of [Kentucky]
law.... This places same-sex couples [married out
of state] in an unstable position of being in a
second-tier marriage [in Kentucky]. The differen-
tiation demeans the couple, whose moral and
sexual choices the Constitution protects, see
Lawrence, 539 U.S. 558, 123 S.Ct. 2472.
Id. Under Justice Kennedy's logic, Kentucky's
laws burden the lives of same-sex spouses by pre-
venting them from receiving certain state and feder-
al governmental benefits afforded to other married
couples. Id. Those laws instruct[ ] all ... officials,
and indeed all persons with whom same-sex
couples interact, including their own children, that
their marriage is less worthy than the marriages of
others. Id. at 2696. Indeed, Justice Kennedy's ana-
lysis would seem to command that a law refusing to
recognize valid out-of-state same-sex marriages has
only one effect: to impose inequality.
From this analysis, it is clear that Kentucky's
laws treat gay and lesbian persons differently in a
way that demeans them. Absent a clear showing of
animus, however, the Court must still search for
any rational relation to a legitimate government
purpose.
B.
[3] The State's sole justification for the chal-
lenged provisions is: the Commonwealth's public
policy is rationally related to the legitimate govern-
ment interest of preserving the state's institution of
traditional marriage. Certainly, these laws do fur-
ther that policy.
That Kentucky's laws are rooted in tradition,
however, cannot alone justify their infringement on
individual liberties. See Heller v. Doe, 509 U.S.
312, 326, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)
(Ancient lineage of a legal concept does not give it
immunity from attack for lacking a rational
basis.); Williams v. Illinois, 399 U.S. 235, 239,
90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) ([N]either
the antiquity of a practice nor the fact of steadfast
legislative and judicial adherence to it through the
centuries insulates it from constitutional attack....).
Over the past forty years, the Supreme Court has
refused to allow mere tradition to justify marriage
statutes that violate individual liberties. See, e.g.,
Loving, 388 U.S. at 12, 87 S.Ct. 1817 (states cannot
prohibit interracial marriage); Lawrence, 539 U.S.
at 57778, 123 S.Ct. 2472 (states cannot criminal-
ize private, consensual sexual conduct); Nev. Dep't
of Human Res. v. Hibbs, 538 U.S. 721, 73335, 123
S.Ct. 1972, 155 L.Ed.2d 953 (2003) (states cannot
act based on stereotypes about women's assumption
of primary childcare responsibility). Justice
Kennedy restated the principle most clearly:
[T]he fact that the governing majority in a State
has traditionally viewed a particular practice as im-
moral is not a sufficient reason for upholding a law
prohibiting the practice.... Lawrence, 539 U.S. at
577, 123 S.Ct. 2472 (quoting Bowers, 478 U.S. at
216, 106 S.Ct. 2841 (Stevens, J., dissenting)).
Justice Scalia was more blunt, stating that
preserving the traditional institution of marriage
is just a kinder way of describing the State's moral
disapproval of same-sex couples. Id. at 601, 123
S.Ct. 2472 (Scalia, J., dissenting) (emphasis in ori-
ginal).
Usually, as here, the tradition behind the chal-
lenged law began at a time when most people did
not fully appreciate, much less articulate, the indi-
vidual rights in question. For years, many states had
a tradition of segregation and even articulated reas-
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ons why it created a better, more stable society.
Similarly, many states deprived women of their
equal rights under the law, believing this to prop-
erly preserve our traditions. In time, even the most
strident supporters of these views understood that
they could not enforce their particular moral views
to the detriment of another's constitutional rights.
Here as well, sometime in the not too distant future,
the same understanding will come to pass.
C.
*8 The Family Trust Foundation of Kentucky,
Inc. submitted a brief as amicus curiae which cast a
broader net in search of reasons to justify Ken-
tucky's laws. It offered additional purported legit-
imate interests including: responsible procreation
and childrearing, steering naturally procreative rela-
tionships into stable unions, promoting the optimal
childrearing environment, and proceeding with cau-
tion when considering changes in how the state
defines marriage. These reasons comprise all those
of which the Court might possibly conceive.
The State, not surprisingly, declined to offer
these justifications, as each has failed rational basis
review in every court to consider them post- Wind-
sor, and most courts pre- Windsor. See, e.g., Bishop
v. United States ex rel. Holder, 962 F.Supp.2d
1252, 129096 (N.D.Okla.2014) (responsible pro-
creation and childrearing, steering naturally procre-
ative relationships into stable unions, promoting the
ideal family unit, and avoiding changes to the insti-
tution of marriage and unintended consequences);
Kitchen v. Herbert, 961 F.Supp.2d 1181, 121114
(D.Utah 2013) (responsible procreation, optimal
childrearing, proceeding with caution); Obergefell
v. Wymyslo, 962 F.Supp.2d 968, 99395 (S.D.Ohio
2013) (optimal childrearing). The Court fails to see
how having a family could conceivably harm chil-
dren. Indeed, Justice Kennedy explained that it was
the government's failure to recognize same-sex
marriages that harmed children, not having married
parents who happened to be of the same sex:
[I]t humiliates tens of thousands of children now
being raised by same-sex couples. The law in
question makes it even more difficult for the chil-
dren to understand the integrity and closeness of
their own family and its concord with other fam-
ilies in their community and in their daily lives.
Windsor, 133 S.Ct. at 2694.
As in other cases that have rejected the
amicus's arguments, no one in this case has offered
factual or rational reasons why Kentucky's laws are
rationally related to any of these purposes. Ken-
tucky does not require proof of procreative ability
to have an out-of-state marriage recognized. The
exclusion of same-sex couples on procreation
grounds makes just as little sense as excluding post-
menopausal couples or infertile couples on procre-
ation grounds. After all, Kentucky allows gay and
lesbian individuals to adopt children. And no one
has offered evidence that same-sex couples would
be any less capable of raising children or any less
faithful in their marriage vows. Compare this with
Plaintiffs, who have not argued against the many
merits of traditional marriage. They argue only
that they should be allowed to enjoy them also.
Other than those discussed above, the Court
cannot conceive of any reasons for enacting the
laws challenged here. Even if one were to conclude
that Kentucky's laws do not show animus, they can-
not withstand traditional rational basis review.
D.
*9 The Court is not alone in its assessment of
the binding effects of Supreme Court jurisprudence,
particularly Justice Kennedy's substantive analysis
articulated over almost two decades.
Nine state and federal courts have reached con-
clusions similar to those of this Court. After the
Massachusetts Supreme Judicial Court led the way
by allowing same-sex couples to marry, five years
later the Connecticut Supreme Court reached a sim-
ilar conclusion regarding its state constitution on
equal protection grounds. Kerrigan v. Comm'r of
Pub. Health, 289 Conn. 135, 957 A.2d 407, 482
(2008). Other courts soon began to follow. See
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Varnum v. Brien, 763 N.W.2d 862, 907 (Iowa
2009) (holding that banning same-sex marriage vi-
olated equal protection as guaranteed by the Iowa
Constitution); Perry v. Schwarzenegger, 704
F.Supp.2d 921, 1003 (N.D.Cal.2010) (holding that
the state's constitutional ban on same-sex marriage
enacted via popular referendum violated the Equal
Protection and Due Process clauses of the Four-
teenth Amendment to the United States Constitu-
tion) aff'd sub nom. Perry v. Brown, 671 F.3d 1052
(9th Cir.2012) vacated and remanded sub nom.
Hollingsworth v. Perry, U.S. , 133 S.Ct.
2652, 186 L.Ed.2d 768 (2013); Garden State
Equality v. Dow, 434 N.J.Super. 163, 82 A.3d 336,
36768 (2013) (holding that disallowing same-sex
marriage violated the New Jersey Constitution, and
the governor withdrew the state's appeal); Griego v.
Oliver, 316 P.3d 865, 872 (N.M.2013) (holding that
denying same-sex couples the right to marry viol-
ated the state constitution's equal protection clause).
Over the last several months alone, three feder-
al district courts have issued well-reasoned opin-
ions supporting the rights of non-heterosexual per-
sons to marriage equality in similar circumstances.
See Bishop, 962 F.Supp.2d at 125859 (holding that
the state's ban on same-sex marriage violated the
Equal Protection Clause of the Fourteenth Amend-
ment); Obergefell, 962 F.Supp.2d at 97274
(holding that Ohio's constitutional and statutory ban
on the recognition of same-sex marriages validly
performed out-of-state was unconstitutional as ap-
plied to Ohio death certificates); Kitchen, 961
F.Supp.2d at 118788 (holding that the state's con-
stitutional and statutory ban on same-sex marriage
violated the Equal Protection and Due Process
clause of the Fourteenth Amendment).
Indeed, to date, all federal courts that have con-
sidered same-sex marriage rights post- Windsor
have ruled in favor of same-sex marriage rights.
This Court joins in general agreement with their
analyses.
IV.
*10 For many, a case involving these issues
prompts some sincere questions and concerns. After
all, recognizing same-sex marriage clashes with
many accepted norms in Kentuckyboth in society
and faith. To the extent courts clash with what
likely remains that majority opinion here, they risk
some of the public's acceptance. For these reasons,
the Court feels a special obligation to answer some
of those concerns.
A.
Many Kentuckians believe in traditional mar-
riage. Many believe what their ministers and scrip-
tures tell them: that a marriage is a sacrament insti-
tuted between God and a man and a woman for so-
ciety's benefit. They may be confusedeven
angrywhen a decision such as this one seems to
call into question that view. These concerns are un-
derstandable and deserve an answer.
Our religious beliefs and societal traditions are
vital to the fabric of society. Though each faith,
minister, and individual can define marriage for
themselves, at issue here are laws that act outside
that protected sphere. Once the government defines
marriage and attaches benefits to that definition, it
must do so constitutionally. It cannot impose a tra-
ditional or faith-based limitation upon a public right
without a sufficient justification for it. Assigning a
religious or traditional rationale for a law, does not
make it constitutional when that law discriminates
against a class of people without other reasons.
The beauty of our Constitution is that it accom-
modates our individual faith's definition of mar-
riage while preventing the government from unlaw-
fully treating us differently. This is hardly surpris-
ing since it was written by people who came to
America to find both freedom of religion and free-
dom from it.
B.
Many others may wonder about the future of
marriages generally and the right of a religion or an
individual church to set its own rules governing it.
For instance, must Kentucky now allow same-sex
couples to marry in this state? Must churches now
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marry same-sex couples? How will this decision
change or affect my marriage?
First, the Court was not presented with the par-
ticular question whether Kentucky's ban on same-
sex marriage is constitutional. However, there is no
doubt that Windsor and this Court's analysis sug-
gest a possible result to that question.
Second, allowing same-sex couples the state re-
cognition, benefits, and obligations of marriage
does not in any way diminish those enjoyed by op-
posite-sex married couples. No one has offered any
evidence that recognizing same-sex marriages will
harm opposite-sex marriages, individually or col-
lectively. One's belief to the contrary, however sin-
cerely held, cannot alone justify denying a selected
group their constitutional rights.
Third, no court can require churches or other
religious institutions to marry same-sex couples or
any other couple, for that matter. This is part of our
constitutional guarantee of freedom of religion.
That decision will always be based on religious
doctrine.
What this opinion does, however, is make real
the promise of equal protection under the law. It
will profoundly affect validly married same-sex
couples' experience of living in the Commonwealth
and elevate their marriage to an equal status in the
eyes of state law.
C.
*11 Many people might assume that the cit-
izens of a state by their own state constitution can
establish the basic principles of governing their
civil life. How can a single judge interfere with that
right?
It is true that the citizens have wide latitude to
codify their traditional and moral values into law.
In fact, until after the Civil War, states had almost
complete power to do so, unless they encroached on
a specific federal power. See Barron v. City of Bal-
timore, 32 U.S. 243, 25051, 7 Pet. 243, 8 L.Ed.
672 (1833). However, in 1868 our country adopted
the Fourteenth Amendment, which prohibited state
governments from infringing upon our individual
rights. Over the years, the Supreme Court has said
time and time again that this Amendment makes the
vast majority of the original Bill of Rights and oth-
er fundamental rights applicable to state govern-
ments.
In fact, the first justice to articulate this view
was one of Kentucky's most famous sons, Justice
John Marshall Harlan. See Hurtado v. California,
110 U.S. 516, 558, 4 S.Ct. 111, 28 L.Ed. 232
(1884) (Harlan, J., dissenting). He wrote that the
Fourteenth Amendment added greatly to the dig-
nity and glory of American citizenship, and to the
security of personal liberty, by declaring that ... no
state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any state deprive any
person of life, liberty or property without due pro-
cess of law, nor deny to any person within its juris-
diction the equal protection of the laws. Plessy v.
Ferguson, 163 U.S. 537, 555, 16 S.Ct. 1138, 41
L.Ed. 256 (1896) (Harlan, J., dissenting) (quoting
U.S. CONST. amend. XIV).
[4] So now, the Constitution, including its
equal protection and due process clauses, protects
all of us from government action at any level,
whether in the form of an act by a high official, a
state employee, a legislature, or a vote of the people
adopting a constitutional amendment. As Chief
Justice John Marshall said, [i]t is emphatically the
province and duty of the judicial department to say
what the law is. Marbury v. Madison, 1 Cranch
137, 5 U.S. 137, 177, 2 L.Ed. 60 (1803). Initially
that decision typically rests with one judge; ulti-
mately, other judges, including the justices of the
Supreme Court, have the final say. That is the way
of our Constitution.
D.
For many others, this decision could raise basic
questions about our Constitution. For instance, are
courts creating new rights? Are judges changing the
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meaning of the Fourteenth Amendment or our Con-
stitution? Why is all this happening so suddenly?
The answer is that the right to equal protection
of the laws is not new. History has already shown
us that, while the Constitution itself does not
change, our understanding of the meaning of its
protections and structure evolves.
FN16
If this were
not so, many practices that we now abhor would
still exist.
*12 Contrary to how it may seem, there is
nothing sudden about this result. The body of con-
stitutional jurisprudence that serves as its founda-
tion has evolved gradually over the past forty-seven
years. The Supreme Court took its first step on this
journey in 1967 when it decided the landmark case
Loving v. Virginia, which declared that Virginia's
refusal to marry mixed-race couples violated equal
protection. The Court affirmed that even areas such
as marriage, traditionally reserved to the states, are
subject to constitutional scrutiny and must respect
the constitutional rights of persons. Windsor, 133
S.Ct. at 2691 (citing Loving ).
Years later, in 1996, Justice Kennedy first
emerged as the Court's swing vote and leading ex-
plicator of these issues in Romer v. Evans. Romer,
517 U.S. at 635, 116 S.Ct. 1620 (holding that Col-
orado's constitutional amendment prohibiting all le-
gislative, executive, or judicial action designed to
protect homosexual persons violated the Equal Pro-
tection Clause). He explained that if the
constitutional conception of equal protection of
the laws' means anything, it must at the very least
mean that a bare ... desire to harm a politically un-
popular group cannot constitute a legitimate gov-
ernmental interest. Id. at 63435, 116 S.Ct. 1620
(emphasis in original) (quoting Dep't of Agric. v.
Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37
L.Ed.2d 782 (1973)). These two cases were the vir-
tual roadmaps for the cases to come next.
In 2003, Justice Kennedy, again writing for the
majority, addressed another facet of the same issue
in Lawrence v. Texas, explaining that sexual rela-
tions are but one element in a personal bond that is
more enduring and holding that a Texas statute
criminalizing certain sexual conduct between per-
sons of the same sex violated the Constitution. 539
U.S. at 567, 123 S.Ct. 2472. Ten years later came
Windsor. And, sometime in the next few years at
least one other Supreme Court opinion will likely
complete this judicial journey.
So, as one can readily see, judicial thinking on
this issue has evolved ever so slowly. That is be-
cause courts usually answer only the questions that
come before it. Judge Oliver Wendell Holmes aptly
described this process: [J]udges do and must legis-
late, but they can do so only interstitially; they are
confined from molar to molecular motions. S. Pac.
Co. v. Jensen, 244 U.S. 205, 221, 37 S.Ct. 524, 61
L.Ed. 1086 (1917) (Holmes, J., dissenting). In
Romer, Lawrence, and finally, Windsor, the Su-
preme Court has moved interstitially, as Holmes
said it should, establishing the framework of cases
from which district judges now draw wisdom and
inspiration. Each of these small steps has led to this
place and this time, where the right of same-sex
spouses to the state-conferred benefits of marriage
is virtually compelled.
The Court will enter an order consistent with
this Memorandum Opinion.
MEMORANDUM OPINION AND ORDER
*13 [5] Defendant, the Governor of Kentucky,
has moved for a stay of enforcement of this Court's
February 27, 2014 final order, pending its appeal to
the United States Court of Appeals for the Sixth
Circuit. On February 28, the Court granted a stay
up to and including March 20, 2014, in order to al-
low the state a reasonable time to implement the or-
der. Defendant moved the Court for an extension of
the stay on March 14, and the parties appeared be-
fore the Court for a telephonic hearing on the mat-
ter on March 17. Defendant filed a notice of appeal
on March 18.
I.
[6] Federal Rule of Civil Procedure 62 em-
Page 12
--- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.)
(Cite as: 2014 WL 556729 (W.D.Ky.))
powers this Court to stay enforcement of its own
orders and judgments. Particularly in civil matters,
there are no rigid rules that govern such a stay, and
courts have a fair amount of discretion. The Court
will consider the following factors: (1) whether the
stay applicant has made a strong showing of likeli-
hood of success on the merits; (2) whether the ap-
plicant will be irreparably injured absent a stay; (3)
whether the issuance of a stay will substantially in-
jure other parties interested in the proceedings; and
(4) where the public interest lies. Hilton v. Braun-
skill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95
L.Ed.2d 724 (1987); Baker v. Adams Cnty./Ohio
Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir.2002).
Here, the applicant has not made a strong
showing of a likelihood of success on the merits.
The district courts are so far unanimous, but no
court of appeals has issued an opinion. So, one
must admit that ultimate resolution of these issues
is unknown.
FN1
The applicant contends that the state will suffer
irreparable harmchaosif the stay is not ex-
tended. It must demonstrate irreparable harm that
decidedly outweighs the harm that will be inflicted
on others if a stay is granted. Family Trust Found.
of Ky., Inc. v. Ky. Judicial Conduct Comm'n, 388
F.3d 224, 227 (6th Cir.2004) (quoting Baker, 310
F.3d at 928) (internal quotation marks omitted). To
illustrate the irreparable harm, the applicant cites
the potential granting and then taking away of
same-sex marriage recognition to couples. It also
cites the potential impacts on businesses and ser-
vices where marital status is relevant, including
health insurance companies, creditors, [and] estate
planners.... This is a legitimate concern.
[7] On the other hand, Plaintiff same-sex
couples argue that they would rather have their
marriages recognized for a short amount of time
than never at all. Plaintiffs contend that the irrepar-
able harms cited by Defendant are actually minor
bureaucratic inconveniences which cannot over-
come their constitutional rights. The Court agrees
that further delay would be a delay in vindicating
Plaintiffs' constitutional rights and obtaining access
to important government benefits. The loss of a
constitutional right for even minimal periods of
time constitutes irreparable harm. See Connection
Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th
Cir.1998) (citing Elrod v. Burns, 427 U.S. 347, 373,
96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)).
Finally, the applicant argues that avoiding
chaos and uncertainty is in the public's best interest.
However, as the Court previously noted, the public
interest is twofold: that the Constitution be upheld,
and that changes in the law be implemented con-
sistently and without undue confusion. The Court
has concerns about implementing an order which
has dramatic effects, and then having that order re-
versed, which is one possibility. Under such cir-
cumstances, rights once granted could be cast in
doubt.
*14 In this Court's view, the application of
these four factors is mixed.
II.
Another issue of great concern is the signific-
ance of the Supreme Court's stay of the district
court's injunction in Herbert v. Kitchen, U.S.
, 134 S.Ct. 893, 187 L.Ed.2d 699 (2014). Since
then, three additional cases in which Plaintiffs
sought the issuance of marriage licenses have
entered stays on their rulings pending appeal. See
Bishop v. United States ex rel. Holder, 962
F.Supp.2d 1252, 129596 (N.D.Okla.2014); Bostic
v. Rainey, 970 F.Supp.2d 456, , 2014 WL
561978, at *23 (E.D.Va.2014); De Leon v. Perry,
SA13CA00982OLG, F.Supp.2d ,
, 2014 WL 715741, at *28 (W.D.Tex. Feb. 26,
2014). The applicant says that it is precedential
here.
Plaintiffs make a compelling argument that, at
the time of the Supreme Court's guidance in Kit-
chen, the Tenth Circuit had already directed exped-
ited briefing and argument. Here, there is no such
guarantee of expedited briefing before the Sixth
Circuit. It may be years before the appeals process
Page 13
--- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.)
(Cite as: 2014 WL 556729 (W.D.Ky.))
is completed. Also, our case is different than Kit-
chen. Nevertheless, the Supreme Court has sent a
strong message by its unusual intervention and or-
der in that case. It cannot be easily ignored.
Perhaps it is difficult for Plaintiffs to under-
stand how rights won can be delayed. It is a truth
that our judicial system can act with stunning
quickness, as this Court has; and then with some-
times maddening slowness. One judge may decide a
case, but ultimately others have a final say. It is the
entire process, however, which gives our judicial
system and our judges such high credibility and ac-
ceptance. This is the way of our Constitution. It is
that belief which ultimately informs the Court's de-
cision to grant a stay. It is best that these moment-
ous changes occur upon full review, rather than risk
premature implementation or confusing changes.
That does not serve anyone well.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that the stay of this
Court's February 27, 2014 final order is extended
until further order of the Sixth Circuit.
FN1. See ALA.CODE 30119 (2013);
ARIZ.REV.STAT. ANN. 25101, 125
(2013); ARK.CODE ANN.
911208(b), 107(b) (West 2013);
COLO.REV.STAT. ANN. 142104
(West 2013); FLA. STAT. ANN..
741.212 (West 2013); GA.CODE ANN.
1933.1 (West 2013); HAW.REV.STAT.
5721, 1.6 (West 2013) (repealed
2011); IDAHO CODE ANN. 32209
(West 2013); 750 ILL. COMP. STAT.
ANN.N. 5/212(a)(5), 5/213.1 (West 2013);
IND.CODE ANN. 311111 (West
2013); KAN. STAT. ANN. . 232501,
232508 (West 2013); LA. CIV.CODE
ANN. art. 89, 3520 (2013); MICH. COMP.
LAWS ANN. 551.1, .271(2) (West
2013); MISS.CODE ANN. 9311(2)
(West 2013); MO. ANN. STAT. 451.022
(West 2013); MONT.CODE ANN.
401401(1)(d) (2013); N.C. GEN.STAT.
ANN. 511.2 (West 2013); N.D.
CENT.CODE ANN. 140301, 08
(West 2013); OKLA. STAT. tit. 43, 3.1
(2013); 23 PA. CONS.STAT. ANN.
1102, 1704 (West 2013); S.C.CODE ANN.
20110, 15 (2013); S.D. CODIFIED
LAWS 2511, 38 (2013);
TENN.CODE ANN. 363113 (West
2013); TEX. FAM.CODE ANN. 1.103,
2.001 (West 2013); UTAH CODE ANN.
3012 (West 2013), invalidated by Kit-
chen v. Herbert, 961 F.Supp.2d 1181
(D.Utah 2013); VA.CODE ANN.
2045.2 (West 2013); W. VA.CODE
ANN. 482104, 401 (West 2013).
FN2. The bill included commentary that
stated: a redefinition of marriage in
Hawaii to include homosexual couples
could make such couples eligible for a
whole range of federal rights and benefits.
H.R.REP. NO. 104664, at 411, 1996
U.S.C.C.A.N. 2905, 2914 (1996).
FN3. The pertinent text of these provisions
is:
402.005: As used and recognized in the
law of the Commonwealth, marriage
refers only to the civil status, condition,
or relation of one (1) man and one (1)
woman....
402.020:(1) Marriage is prohibited and
void (d) Between members of the same
sex.
402.040:(2) A marriage between mem-
bers of the same sex is against Kentucky
public policy and shall be subject to the
prohibitions established in K.R.S.
402.045.
402.045:(1) A marriage between mem-
bers of the same sex which occurs in an-
Page 14
--- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.)
(Cite as: 2014 WL 556729 (W.D.Ky.))
other jurisdiction shall be void in Ken-
tucky. (2) Any rights granted by virtue
of the marriage, or its termination, shall
be unenforceable in Kentucky courts.
KY.REV.STAT. ANN. 402.005.045
(West 2013).
FN4. States passing constitutional amend-
ments banning same-sex marriage in 2004
include Arkansas, Georgia, Kentucky,
Louisiana, Michigan, Mississippi, Mis-
souri, Montana, North Dakota, Ohio, Ok-
lahoma, Oregon, and Utah. Other states
followed suit: in 2005, Kansas and Texas;
in 2006, Alabama, Colorado, Idaho, South
Carolina, South Dakota, Tennessee, Vir-
ginia, and Wisconsin; in 2008, Arizona,
California, and Florida; and in 2012, North
Carolina. Alaska passed its constitutional
ban in 1998, and Nebraska and Nevada did
so in 2000. California's, Utah's, and Ok-
lahoma's constitutional bans have since
been overturned.
FN5. 53.6% of Kentucky's registered
voters participated.
FN6. Recognition by legislation and by
popular vote has occurred in Vermont
(Apr. 7, 2009), New Hampshire (June 3,
2009), District of Columbia (Dec. 18,
2009), New York (June 24, 2011), Wash-
ington (Nov. 6, 2012), Maine (Nov. 6,
2012), Maryland (Nov. 6, 2012), Delaware
(May 7, 2013), Minnesota (May 14, 2013),
Rhode Island (May 2, 2013), Hawaii (Nov.
13, 2013), and Illinois (Nov. 20, 2013)
(effective June 1, 2014). State and federal
court judgments have occurred in Mas-
sachusetts, Connecticut, Iowa, California,
New Jersey, New Mexico, Utah, and Ok-
lahoma. The Utah and Oklahoma decisions
are currently being appealed.
FN7. Plaintiffs Franklin and Boyd are res-
idents of Shelby County and originally
filed suit in the Eastern District of Ken-
tucky. Judge Gregory Van Tatenhove gran-
ted Plaintiffs and Defendants' joint motion
for change of venue pursuant to 28 U.S.C.
1404 to the Western District of Ken-
tucky. The case was assigned to Judge
Thomas Russell, who transferred it here in
the interest of judicial economy and to
equalize the docket. Although the cases
were not consolidated, Plaintiffs here sub-
sequently added Franklin and Boyd to this
action in their Second Amended Com-
plaint.
FN8. In their Second Amended Complaint,
Plaintiffs also alleged discrimination on
the basis of sex. However, the current mo-
tion before the Court does not mention any
such basis. Therefore, the Court will con-
strue this claim to allege only discrimina-
tion based on sexual orientation.
FN9. Plaintiffs also seek a declaration that
Section 2 of the Defense of Marriage Act
(DOMA), 28 U.S.C. 1738C, as applied to
Plaintiffs and similarly situated same-sex
couples violates the Due Process, Equal
Protection, Freedom of Association, and
Full Faith and Credit clauses of the United
States Constitution. The Court finds that
Section 2 of DOMA, as a permissive stat-
ute, is not necessary to the disposition of
Plaintiffs' case and therefore will not ana-
lyze its constitutionality.
FN10. The Fourteenth Amendment to the
U.S. Constitution provides, in pertinent
part:
No State shall make or enforce any law
which shall abridge the privileges or im-
munities of citizens of the United States;
nor shall any State deprive any person of
life, liberty, or property without due pro-
cess of law; nor deny to any person with-
Page 15
--- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.)
(Cite as: 2014 WL 556729 (W.D.Ky.))
in its jurisdiction the equal protection of
the laws.
U.S. CONST. amend. XIV 1.
FN11. In Windsor, the state of New York
enacted legislation recognizing same-sex
marriages performed out of state and later
amended its own laws to permit same-sex
marriage. Section 3 of the Defense of Mar-
riage Act (DOMA) denied recognition to
same-sex marriages for the purposes of
federal law. As a result of DOMA, a same-
sex spouse did not qualify for the marital
exemption from the federal estate tax. She
brought an action challenging the constitu-
tionality of Section 3 of DOMA in federal
court. The Windsor Court applied Fifth
Amendment due process and equal protec-
tion analysis to the plaintiff's challenge of
a federal statute. Our case involves a chal-
lenge to a state constitutional provision
and state statutes, thus falling under the
protections of the Fourteenth Amendment,
which is subject to the same substantive
analysis.
FN12. Indeed, one district court in this Cir-
cuit has found that Lawrence destroyed the
jurisprudential foundation of Davis's line
of Sixth Circuit cases, thus leaving the
level of scrutiny an open question for
lower courts to resolve. See Obergefell v.
Wymyslo, 962 F.Supp.2d at 98687
(S.D.Ohio 2013).
FN13. Some courts have construed the
right to marry to include the right to re-
main married. See, e.g., Obergefell v.
Wymyslo, 962 F.Supp.2d 968 (S.D.Ohio
2013). The logic is that Kentucky's laws
operate to render Plaintiffs' marriage inval-
id in the eyes of state law. This could
amount to a functional deprivation of
Plaintiffs' lawful marriage, and therefore a
deprivation of liberty. See id. at 97779.
FN14. Indeed, Justice Scalia stated that
Windsor indicated the way the Supreme
Court would view future cases involving
same-sex marriage beyond mistaking.
133 S.Ct. at 2709 (Scalia, J., dissenting).
FN15. Senate Bill 245 proposed the
amendment to the Kentucky Constitution.
The bill's sponsor, state senator Vernie
McGaha said:
Marriage is a divine institution designed
to form a permanent union between man
and woman.... [T]he scriptures make it
the most sacred relationship of life, and
nothing could be more contrary to the
spirit than the notion that a personal
agreement ratified in a human court sat-
isfies the obligation of this ordinance....
[I]n First Corinthians 7:2, if you notice
the pronouns that are used in this scrip-
ture, it says, Let every man have his
own wife, and let every woman have her
own husband. The Defense of Marriage
Act, passed in 1996 by Congress,
defined marriage for the purpose of fed-
eral law as the legal union between one
man and one woman. And while Ken-
tucky's law did prohibit the same thing,
in '98 we passed a statute that gave it a
little more strength and assured that such
unions in other states and countries also
would not be recognized here. There are
similar laws across 38 states that express
an overwhelming agreement in our coun-
try that we should be protecting the insti-
tute [sic ] of marriage. Nevertheless this
institution of marriage is under attack by
judges and elected officials who would
legislate social policy that has already
been in place for us for many, many
years.... In May of this year, Massachu-
setts will begin issuing marriage licenses
to same-sex couples.... We in the legis-
lature, I think, have no other choice but
Page 16
--- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.)
(Cite as: 2014 WL 556729 (W.D.Ky.))
to protect our communities from the de-
secration of these traditional values....
Once this amendment passes, no activist
judge, no legislature or county clerk
whether in the Commonwealth or out-
side of it will be able to change this fun-
damental fact: the sacred institution of
marriage joins together a man and a wo-
man for the stability of society and for
the greater glory of God.
S. DEBATE, 108TH CONG., 2ND
SESS. (Ky. 2004), ECF No. 386 at
1:00:301:05:10. Similarly, cosponsor
state senator Gary Tapp proclaimed:
For many years, Kentucky has had laws
that define marriage as one man and one
woman, and in 1998, the General As-
sembly did strengthen those laws ensur-
ing that same-sex marriages performed
in other states or countries would not be
recognized here.... While we're not pro-
posing any new language regarding the
institution of marriage in Kentucky, this
pro-marriage constitutional amendment
will solidify existing law so that even an
activist judge cannot question the defini-
tion of marriage according to Kentucky
law.... [W]hen the citizens of Kentucky
accept this amendment, no one, no
judge, no mayor, no county clerk, will be
able to question their beliefs in the tradi-
tions of stable marriages and strong fam-
ilies.
Id. at 1:05:431:07:45. The final state
senator to speak on behalf of the bill, Ed
Worley, said that the bill was not inten-
ded to be a discrimination bill. Id. at
1:26:10. However, he offered no other
purpose other than reaffirming the his-
torical and Biblical definition of mar-
riage. See, e.g., id. at 1:26:201:26:50.
One state senator, Ernesto Scorsone,
spoke out against the constitutional
amendment. He said:
The efforts to amend the U.S. Constitu-
tion over the issue of interracial mar-
riage failed despite repeated religious ar-
guments and Biblical references.... The
proposal today is a shocking departure
from [our constitutional] principles.... To
institutionalize discrimination in our
constitution is to turn the document on
its head. To allow the will of the major-
ity to forever close the door to a minor-
ity, no matter how disliked, to any right,
any privilege, is an act of political
heresy.... Their status will be that of
second-class citizens forever.... Discrim-
ination and prejudices will not survive
the test of time.
Id. at 1:16:071:24:00.
FN16. The Supreme Court in Lawrence v.
Texas explained:
Had those who drew and ratified the Due
Process Clauses of the Fifth Amendment
or the Fourteenth Amendment known the
components of liberty in its manifold
possibilities, they might have been more
specific. They did not presume to have
this insight. They knew times can blind
us to certain truths and later generations
can see that laws once thought necessary
and proper in fact serve only to oppress.
As the Constitution endures, persons in
every generation can invoke its prin-
ciples in their own search for greater
freedom.
539 U.S. at 57879, 123 S.Ct. 2472.
FN1. The applicant cites a potential issue
of the applicability of Baker v. Nelson, 409
U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65
(1972). However, Baker dismissed for
Page 17
--- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.)
(Cite as: 2014 WL 556729 (W.D.Ky.))
want of a substantial federal question an
action requesting the issuance of a same-
sex marriage license, an issue that was not
before the Court in our underlying case.
W.D.Ky.,2014.
Bourke v. Beshear
--- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.)
END OF DOCUMENT
Page 18
--- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.)
(Cite as: 2014 WL 556729 (W.D.Ky.))
Brinkman v. Long, 2014 WL 3408024 (2014)
2014 WL 3408024 (Colo.Dist.Ct.) (Trial Order)
District Court of Colorado.
Adams County
Rebecca BRINKMAN and Margaret Burd Plaintiffs,
v.
Karen LONG and The State of Colorado, Defendants.
and
G. Kristian MCDANEIL-MICCIO, et. al., Plaintiffs,
v.
STATE OF COLORADO, et. al., Defendants.
Nos. 13-CV-32572, 14-CV-30731.
July 9, 2014.
*1 Division: C
Courtroom: 506
MDL Case No. 14MD4.
Summary Judgment Order
C. Scott Crabtree, Judge.
Plaintiffs Rebecca Brinkman (Brinkman) and Margaret Burd (Burd) (collectively Adco Plaintiffs) filed a Motion for Summary
Judgment (Adco Motion) on May 2, 2014. The State of Colorado (the State) filed a Cross-Motion for Summary Judgment (State
Adco Motion) on May 2, 2014. Adams County Plaintiffs filed a Reply (Adco Response) on May 30, 2014. The State filed a
Combined Response on May 30, 2014. Plaintiffs Kristian McDaniel-Miccio and Nan McDaniel-Miccio, Sandra Abbott and
Amy Smart, Wendy Alfredsen and Michelle Alfredsen, Kevin Bemis and Kyle Bemis, Tommy Craig and Joshua Wells, James
Davis and Christopher Massey, Sara Knickerbocker and Jessica Ryann Peyton, Jodi Lupien and Kathleen Porter and Tracey
MacDermott and Heather Shockey (Denver Plaintiffs) filed a Motion for Summary Judgment (Denver Motion) in Denver
County on May 2, 2014. The State filed its Motion for Summary Judgment (Denver State Motion) in Denver County on May 2,
2014. Denver Plaintiffs filed a Response on May 30, 2014. The State filed a Combined Response on May 30, 2014. An Amicus
Brief was filed by the Alliance Defending Freedom on May 7, 2014. Governor Hickenlooper filed a Response (Hickenlooper
Response) on May 30, 2014. The Court heard oral arguments of the parties on June 16, 2014. The Court, being fully informed
finds and orders as follows:
Procedural History
Adams County
Adco Plaintiffs filed their complaint on October 9, 2013. Karen Long, Adams Clerk and Recorder (Long), filed an answer on
January 2, 2014. On December 13, 2014 the State filed an Unopposed Motion to Intervene which was granted on December
23, 2013. The State filed an answer on January 6, 2014. Long filed a motion to be excused from the proceedings on January
29, 2014, which was denied on February 27, 2014. On February 13, 2014 the parties filed a stipulation for a proposed case
management order which was granted February 14, 2014. The Order provided for a briefing schedule for cross-motions for
summary judgment and an opportunity for oral argument. The stipulation provided for the filing of affidavits to be responded
to, if appropriate. On April 1, 2014 the parties filed a stipulation to amend the case management order to extend the briefing
schedule. Oral argument was set for June 2, 2014. On March 31, 2014 the State filed a Notice of Motion to Consolidate
Multidistrict Litigation. The briefing proceeded in accordance with the agreed upon schedule and as set forth above. On May
2, 2014 the MDL Panel made a recommendation to the Chief Justice of the Colorado Supreme Court to consolidate the Denver
and Adams County cases and that venue was proper in Adams County to be assigned to the undersigned District Court Judge.
The Order also stayed further proceedings in the respective courts pending the assignment by the Chief Justice. On May 7,
2013 the Alliance Defending Freedom filed a Motion to Intervene and an Amicus Brief. On May 8, 2014 the Order from the
Chief Justice consolidating the two cases into Adams County was filed. After motions practice, on May 16, 2014, the Court
denied the motion to intervene, but permitted the amicus brief to be filed. By separate Order the Court indicated that it would
not consider portions of the amicus brief. By agreement, the date for oral argument was changed to June 16, 2014.
Denver County
*2 Denver plaintiffs filed their complaint on February 19, 2014. Defendant Debra Johnson, Denver County Clerk and Recorder
(Johnson), filed an answer on March 12, 2014. The State filed an Answer on April 2, 2014. Governor Hickenlooper filed an
answer on April 2, 2014. The State also filed a Notice of Filing of Motion to Consolidate Multidistrict Litigation in Denver
and Adams counties on April 2, 2014. As previously noted, the cases were ordered consolidated by the Chief Justice on May
8, 2014 and oral argument was set for June 16, 2014.
The Parties
Adco Plaintiffs
Brinkman is a female and a resident of Adams County, Colorado. She wishes to marry her long-time partner, Burd, whom she
loves and has lived with continuously since 1986. She and Burd are not related to each other and have not previously been
married.
1
Burd is a female and a resident of Adams County, Colorado. She wishes to marry her long-time partner, Brinkman,
whom she loves and has lived with continuously since 1986.
2
On October 30, 2013 Brinkman and Burd went to the marriage
license desk at the office of the Adams County Clerk and Recorder and asked for a marriage license application. They were
prepared to present the clerk with proof of their names, gender, address, social security numbers and dates and places of birth.
They each presented their driver's license when requested and had sufficient funds to pay the fee for the marriage license. The
deputy clerk advised them that they could not get married to each other because they were both female. She said they could only
apply for and get a license for a civil union. They declined to obtain the civil union because it was not the same as marriage.
3
Denver Plaintiffs
Denver Plaintiffs, Tracey MacDermott and Heather Shockey; Wendy and Michelle Alfredsen; Tommy Craig and Joshua Wells;
Jodi Lupien and Kathleen Porter; and Christopher Massey and James Davis (Unmarried Plaintiffs), are each in a committed
same-sex relationship and reside in Colorado. Each couple desires to enter into a marriage that is recognized as valid under
Colorado law. They have each completed and signed an application for a marriage license and have attained the age of 18 years
old, and have the ability to pay any applicable fees for a marriage license. The Unmarried Plaintiffs meet all of the statutory
requirements for marriage, except they are same-sex couples.
In February 2014 the Unmarried Plaintiffs appeared at the Denver Office of the Clerk and Recorder to apply for marriage
licenses. A deputy of the Denver Clerk and Recorder declined to issue marriage licenses to the Unmarried Couples because they
are same-sex couples and their licenses would not be valid because Colorado law does not recognize same-sex marriages.
4
Denver Plaintiffs Amy Smart and Sandra Abbott; Kevin and Kyle Bemis; Kris and Nan McDaniel-Miccio; and Sara
Knickerbocker and Ryann Peyton (Married Plaintiffs) were each married in a state that permits same-sex marriage, are in
committed same-sex relationships and reside in Colorado. They have marriage certificates in the states where they were married.
Each couple that was married out of state desires their marriage to be recognized as valid under Colorado law.
5
Denver Plaintiffs Amy Smart and Sandra Abbott; Wendy and Michelle Alfredsen; Jodi Lupien and Kathleen Porter; and Sara
Knickerbocker and Ryann Peyton are raising children together. Denver Plaintiffs Christopher Massey and James Davis are
expecting the birth of their first child in XX/XX/2014.
6
Karen Long
*3 Long is the Adams County Clerk and Recorder. In her answer to the complaint she stated:
Defendant, Adams County Clerk and Recorder, is a constitutional and statutory officer and has no authority to disregard
Colorado law. Defendant takes no position on any substantive issue raised in this matter and will follow any order that this
court deems proper. Since the Clerk and Recorder does not plan to actively defend this case, she does not plan to participate
in any discovery or briefing and asks that she be excused from the requirements of Rule 16 and Rule 26 and be excused from
attending future court dates that may be set in this case. The Clerk and Recorder will cooperate with any other party or the Court
to the extent that she has relevant information that may be helpful to resolution of this case.
7
Debra Johnson
Johnson is the Clerk and Recorder for the City and County of Denver. As the Clerk and Recorder she is responsible for complying
with Colorado law and acts under color of state law when issuing marriage licenses.
State of Colorado
The State of Colorado is a state with its capital in Denver, Colorado. The State has enacted ordinances and policies that extend
protections and benefits based upon, or otherwise recognize, marital status; however, relying on art. II, 31 of the Colorado
Constitution and C.R.S. 14-2-104(1)(b), and 14-2-104(2), the State does not allow same-sex couples to marry or recognize
the marriages of same-sex couples.
John Hickenlooper
Defendant John W. Hickenlooper, Jr., is Governor of the State of Colorado. He is responsible for upholding and ensuring
compliance with the state constitution and statutes prescribed by the legislature, including Colorado's laws barring same-sex
couples from marriage and refusing to recognize the valid out-of-state marriages of same-sex couples. Governor Hickenlooper
also bears the authority and responsibility for the formulation and implementation of policies of the executive branch.
8
The Complaints
Adco Plaintiffs
The Adco Plaintiffs' complaint alleges that the first claim for relief is brought pursuant to 42 U.S.C. 1983, asserting that
the Colorado statute and constitutional amendment prohibiting same-sex marriages constitute a form of gender discrimination.
Further, the laws violate the Equal Protection and Due Process provisions of the Fourteenth Amendment to the United States
Constitution. The second claim for relief seeks a declaration pursuant to the Colorado Uniform Declaratory Judgments Act
that C.R.S. 14-2-104(1)(b) and (2) and art. II, 31 of the Colorado Constitution arbitrarily, capriciously and intentionally
discriminate against the Adco Plaintiffs. The Adco Plaintiffs sought a preliminary and permanent injunction mandating the
Adams County Clerk and Recorder to issue a marriage license to the Adco Plaintiffs.
Denver Plaintiffs
The Denver Plaintiffs' first claim for relief alleged that Colorado's ban on marriage by same-sex couples deprives the Unmarried
Plaintiffs their rights to due process. The second claim for relief alleged that Colorado's failure to recognize the marriage of the
Married Plaintiffs violates their right to due process. The third claim for relief alleged that Colorado's ban on marriage by same-
sex couples deprives the Unmarried Plaintiffs their rights to equal protection of the laws. The fourth claim for relief alleged that
Colorado's failure to recognize the marriage of the Married Plaintiffs violates their right to equal protection of the laws. The
fifth claim for relief sought a declaration that Colorado's laws violate the Denver Plaintiffs' constitutional rights. The Denver
Plaintiffs sought an injunction precluding enforcement of the laws.
The Challenged Laws
Colorado's Statute
*4 In 2000, the Colorado legislature amended the Uniform Marriage Act, C.R.S. 14-2-101 et seq., by adding paragraph
(1)(b) to section 14-2-104. C.R.S. 14-2-104 reads as follows:
(1) Except as otherwise provided in subsection (3) of this section, a marriage is valid in this state if:
(a) It is licensed, solemnized, and registered as provided in this part 1; and
(b) It is only between one man and one woman.
(2) Notwithstanding the provisions of section 14-2-112, any marriage contracted within or outside this state that does not satisfy
paragraph (b) of subsection (1) of this section shall not be recognized as valid in this state.
(3) Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one
man and one woman:
(a) Entered into prior to September 1, 2006; or
(b) Entered into on or after September 1, 2006, that complies with section 14-2-109.5.
The Colorado Constitutional Amendment
At a general election on November 7, 2006 Colorado voters approved Amendment 43. By proclamation of the Governor on
December 31, 2006, the proposal became art. II, 31 of the Colorado Constitution. It reads as follows:
Only a union of one man and one woman shall be valid or recognized as a marriage in this state.
Brief Summary of the Parties' Positions Adco Motion
The right to marry the person of your own choosing is a fundamental right guaranteed by the due process clause of the Fourteenth
Amendment. U.S. CONST. amend. XIV. The United States Constitution states that, The constitution and laws of the United
States...shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the constitution or
laws of any state to the contrary notwithstanding. U.S. CONST. art. VI, 2. Any state law which infringes on rights guaranteed
by the United States Constitution is invalid under the Supremacy Clause of Article VI. U.S. CONST. art. VI, cl. 2. The Supreme
Court of the United States in Roberts v. United States Jaycees, 468 U.S. 609, 620 (1984) held that our federal constitution
undoubtedly imposes constraints on the state's power to control the selection of one's spouse.
A long and uninterrupted line of Supreme Court decisions recognizes that the right to marry is a fundamental right protected
by both the substantive provisions of the Due Process Clause and by the Equal Protection Clause of the Fourteenth Amendment.
See, e.g. Griswold v. Connecticut, 381 U.S. 479, 495 (1965) (Goldberg, J., Brennan, J. and Warren, C.J., concurring) (The entire
fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital
privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.).
Laws which abridge fundamental rights are subject to strict scrutiny analysis under the Due Process Clause. Such laws can only
survive if the government demonstrates that they are narrowly tailored to serve a compelling state interest. Reno v. Flores,
507 U.S. 292, 302 (1993). No state since U.S. v. Windsor, 133 S. Ct. 2675 (2013) has been able to justify its ban under even
the rational basis test, much less under the strict scrutiny test.
*5 The Enabling Act which authorized Colorado's admission to the Union empowered the citizens of Colorado to adopt a
constitution and form a state government. Section 4 states, in part, that, provided that the constitution shall be republican in
form ... and not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.
The statute in question and the Constitutional Amendment violate the principles of the U.S. Constitution. The mandate that the
Constitution neither knows nor tolerates classes among citizens is the starting point for any Equal Protection analysis. Same
gender couples are similarly situated to opposite gender couples for purposes of Equal Protection analysis.
A class-based Equal Protection challenge such as the one raised here generally requires a two-step analysis. The Court must
first determine whether the challenged state action intentionally discriminates between groups of persons. Secondly, the Court
must determine whether the state's intentional decision to discriminate can be justified by reference so some upright government
purpose. SECYS, L.L.C. v. Vigil, 666 F.3d 678, 685-86 (10th Cir. 2012).
Somewhere between the strict scrutiny test, which applies to suspect classifications such as race, alienage and religion, and
the rational basis test, lies intermediate or heightened scrutiny, which applies to quasi-suspect classes. The intermediate level
of scrutiny upholds state laws only if they are substantially related to an important governmental objective. Clark v. Jeter,
486 U.S. 456, 461 (1988). Substantially related means that the explanation must be exceedingly persuasive. United States
v. Virginia, 518 U.S. 515, 533 (1996). Two primary factors must be satisfied for heightened scrutiny to apply: First, the group
must have suffered a history of invidious discrimination. Second, the characteristics which distinguish the group's members
must bear no relation to their ability to perform or contribute to society. A third consideration, used less often, is whether the
law discriminates on the basis of immutable ... or distinguishing characteristics that define persons as a discrete group. A
fourth consideration, also used less often, is whether the group is a minority or politically powerless. Adco Plaintiffs analyzed
each of the four factors.
The Adco Plaintiffs are members of a quasi-suspect class and the heightened scrutiny analysis must be applied. Even though
Windsor did not specify that it had applied such a test, it did not apply a true rational basis review. See Windsor, 133 S.
Ct. at 2718. Adco Plaintiffs noted several other decisions issued post-Windsor where the heightened scrutiny test had been
adopted. It is entirely proper under this standard of review to consider the purpose behind any law which discriminates against a
politically unpopular minority. Even if this Court declines to find that homosexual persons are a quasi-suspect class and applies
intermediate scrutiny, it must still carefully consider not only the relationship between the marriage bans and the proffered
reasons, but the legislative and political histories which led to their enactments as well as their actual purpose and effect.
Like DOMA, the expressed purpose of the amendment is to discriminate against an unpopular minority by denying members of
the minority access to a right which the United States Supreme Court has repeatedly said is fundamental. Under any reading
of Romer v. Evans, 517 U.S. 620 (1996) and Windsor, these laws cannot stand constitutional scrutiny and must be stricken.
The State's post-hoc attempt to justify its discrimination is implausible. As enunciated in the State's amicus brief in Kitchen
v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. 2014), the State claims that [T]he exclusive capacity and tendency
of heterosexual intercourse to produce children, and the State's need to ensure that those children are cared for, provides that
rational basis. Brief of the State of Indiana, Alabama, Alaska, Arizona, Colorado, Idaho, Montana, Nebraska, Oklahoma and
South Carolina as Amici Curiae in Support of Reversal at 13, Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir.
2014) (hereinafter, State's Amicus Brief). Such an argument ignores that many heterosexual couples who marry without the
intent or ability to naturally procreate children are nonetheless allowed to marry. This responsible procreation justification
has been raised by many other states in defending their similar bans on same gender marriages and has failed in every case.
Colorado law is devoid of any proscription on parenting by same gender couples and the Uniform Parentage Act, C.R.S.
19-4-101, expressly allows for two parents of the same gender. The State allows same gender couples to adopt children, to
beget or give birth to children through artificial means or surrogacy and to retain custody after a failed heterosexual marriage.
*6 The fact that the State has created two classes of legally recognized relationships, marriages and civil unions, is compelling
evidence they are not the same. If civil unions were truly the same as marriages, they would be called marriages and not civil
unions. If they were the same, there would be no need for both of them. In Kerrigan v. Comm'r of Public Health, 957 A.2d 407,
412 (Conn. 2008), the Court stated, [W]e conclude that in light of the history of pernicious discrimination faced by gay men
and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification
of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constituted
cognizable harm. The fact that Colorado denies same gender couples the same right to apply for federal benefits that it grants
to opposite gender couples is a violation of the Equal Protection Clause.
Denver Motion
Colorado bans same-sex marriages in two ways. First, Colorado law prevents county clerks from issuing marriage licenses to
same-sex couples (the Celebration Ban). Second, Colorado refuses to recognize same-sex marriages legally entered in other
jurisdictions (the Recognition Ban) (collectively, the Marriage Bans).
The Marriage Bans harm Denver Plaintiffs and other same-sex couples and their children. The inability of Unmarried Plaintiffs
to be legally married in Colorado denies them certain rights and benefits that validly married opposite-sex couples enjoy.
Children of same-sex couples are stigmatized and humiliated for being raised by the targeted same-sex couples.
Colorado's Marriage Bans are unconstitutional under Windsor because they are based on prejudice. Therein the Supreme Court
found that the state could demonstrate no legitimate purpose that could overcome the discriminatory purpose and effect of
the federal marriage ban, and accordingly, struck it down. Voters considering Amendment 43 were told the amendment was
necessary to avoid court rulings that expand marriage beyond one man and one woman in Colorado. COLO. CONST. art. II,
31. This constitutional amendment was adopted even though the legislature had already enacted a statutory provision with
the identical effect. This historic fact evidences a clear intent to ensure that gay and lesbian Coloradans be preemptively denied
rights under the Constitution. The Recognition Ban is invalid under Windsor because Colorado dramatically altered its inter-
state relationships to discriminate only against same-sex couples. Same-sex couples legally married in the other states have
their marriages dissolved and replaced with civil unions upon entry into the state. By operation of law alone, Colorado strips
them of certain legal rights and protections as well as the dignity and status of immense import conferred upon them by
marriage. Windsor, 133 S. Ct. at 2675.
Since Windsor, every single court to evaluate same-sex marriage bans has found them unconstitutional, either under the federal
or relevant state constitutions. The Equal Protection Clause of the U.S. Constitution's Fourteenth Amendment provides that no
state shall deny to any person within its jurisdiction the equal protection of its laws. U.S. CONST. amend. XIV, 1. The
Supreme Court's instruction in Windsor that the states can no longer single out gay and lesbian relationships for second-class
status makes it unnecessary to apply traditional heightened scrutiny under the Equal Protection Clause. Nevertheless, Supreme
Court precedent requires this Court to apply that test to classifications like the Marriage Ban and the Celebration Ban, because
they discriminate on the basis of both sexual orientation and gender. This heightened standard shifts the burden to the state to
demonstrate that the ban is substantially related to an important government objective. Jeter, 486 U.S. at 461. In a footnote it
was noted that the State has admitted that its justification cannot meet strict scrutiny.
9
When the four traditional criteria used
by the Supreme Court to determine whether a particular group qualifies as a quasi-suspect class are applied to homosexuals, the
conclusion is that classification based on sexual orientation requires at least heightened scrutiny. Denver Plaintiffs identified a
plethora of courts which have now reached that same conclusion. The Denver Motion analyzed those four criteria and concluded
that gays and lesbians are a suspect or semi-suspect class entitled to protection of heightened scrutiny.
*7 The State cannot meet its burden under heightened scrutiny given that the Marriage Ban bears no rational relationship to
any conceivable government interest. Although the Court should apply the heightened scrutiny test, the Marriage Ban lacks
even a rational basis. By requiring that the classification bear a rational relationship to an independent and legitimate legislative
end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Romer,
517 U.S. at 633. A state may not rely on a classification whose relationship to an asserted goal is so attenuated as to render
the distinction arbitrary or irrational. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985). Every court
to consider whether nearly identical marriage bans pass rational basis review following the Windsor decision has concluded
that they do not.
Tradition alone cannot form a rational basis for upholding the marriage ban. Heller v. Doe, 509 U.S. 312, 327 (1993). [T]he
fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason
for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from
constitutional attack. Lawrence v. Texas, 539 U.S. 558, 577-78 (citing Bowers v. Hardwick, 478 U.S. 186, 204 (1986)
(Blackmun, J., Brennan, J., Marshall, J., and Stevens, J., dissenting)).
There can be no doubt that same-sex couples are equally equipped to raise healthy, happy children as opposite-sex couples. It
is the State's policy to encourage same sex couples to foster and adopt children in the government's custody.
The State's second conceivable rationale for the Marriage Bans related to children is that restricting the institution of marriage
to opposite-gender couples will encourage potentially procreative couples to raise children produced by their sexual union
together. State's Amicus Brief at 15. There is no logical reason to believe extending the marriage right to all couples would have
this effect. As the Kitchen court explained, It defies reason to conclude that allowing same-sex couples to marry will diminish
the example that married opposite-sex couples set for their unmarried counterparts. Kitchen v. Herbert, 961 F.Supp.2d 1181,
1211 (D. Utah 2013).
The State's Celebration Ban denies plaintiffs their fundamental right to marry. Denver Plaintiffs addressed a long line of cases
declaring that the right to marry is a fundamental right. Marriage is also a fundamental right to marry the person of your
choosing. Same-sex marriage is included within the fundamental right to marry. De Leon v. Perry, 975 F.Supp.2d 632, 660
(W.D. Tex. 2014). The history of Loving confirms that the fundamental right to marry cannot be defined in so narrow a fashion
that the basic protections afforded by the right are withheld from a class of persons ... who historically have been denied the
benefit of such rights. In re Marriage Cases, 183 P.3d 384, 430 (Cal. 2008).
Colorado's Recognition Ban denies plaintiffs their right to remain married. [O]nce you get married lawfully in one state, another
state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental
liberty interest protected by the Due Process Clause of the United States Constitution. Obergefell v. Wymyslo, 962 F.Supp.2d
968, 973 (S.D. Ohio 2013). The Recognition Ban denies same-sex couples their fundamental right to travel. Like voting, the
right to marry is a fundamental right and the Recognition Ban unconstitutionally penalizes the exercise of the right to travel
by forcing married couples to choose between moving to Colorado and remaining married. Defendants must show that the
Marriage Bans are necessary to promote a compelling state interest and do[ ]so in the least restrictive manner possible. Romer,
882 P.2d at 1341.
*8 Civil unions are a separate, second-class institution which does not confer the same benefits and protections as marriage.
The history of our nation has demonstrated that separate is seldom, if ever, equal. Opinions of the Justices to the Senate,
802 N.E.2d 565, 569 (Mass. 2004).
State Adco and Denver Motions
10
The State opened its Motion by declaring that what is at stake is marriage, not homosexuality. Individuals' commitment to
love one another is the central purpose of marriage as a personal institution, but that is not the purpose of marriage as a
governmental institution. Government marriage is important, but its purposes are more limited than the overall concept of
marriage. Government's role in marriage is not about recognizing parties' love or conferring approval on an individual's choice
of a companion. Government marriage is an attempt to deal with a problem, and one that has become worse in recent years: the
creation of children by parents who are not committed to raising them. This case is not about homosexuality, and it is not even
about marriage in general. It is about the narrower issue of governmental marriage, and the problem caused by uncommitted
opposite-sex couples that it seeks to address. It is also about the courts' historic and wise recognition of two important principles:
the danger of upsetting settled understandings and historical practices and the limited role the judiciary must play in a democratic
society.
Plaintiffs must convince the court not only that Colorado's marriage laws may be or even probably are unconstitutional they must
prove it beyond any reasonable doubt, citing City of Greenwood Village v. Petitioners for the Proposed City of Centennial,
3 P.3d 427, 440 (Colo. 2000). Plaintiffs will argue that heightened scrutiny should apply to the question of same sex-marriage.
Most laws do not trigger heightened scrutiny and are reviewed by courts only under the limited rational basis. All laws draw
lines and treat people differently-the question is which lines or classifications are permissible and which are not. That means
plaintiffs can prevail if they establish beyond a reasonable doubt that either sexual orientation is a suspect classification, or
that the right to marry anyone of one's choosing is a fundamental right. As with most laws, Colorado's marriage laws could not
survive if strict scrutiny were applied. This case turns on the level of scrutiny the Court decides to apply.
The trilogy of cases, Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558 (2003) and United States v.
Windsor, 133 S. Ct. 2675 (2013) gave the Supreme Court the opportunity to declare either that sexual orientation is a suspect
classification, or same-sex marriage is a fundamental right, or both, but it flatly did not. At most these cases reaffirm the states'
sovereign power to define and regulate marriage. Colorado's marriage laws memorialize its citizens' traditional perspective on
marriage and the historically unquestioned principle that marriage is a one-man, one-woman institution.
Windsor did not expand the scope of fundamental rights and it did not declare sexual orientation a suspect class.
The Supreme Court's decision does not require states to repeal their own similar definitions of marriage and did not
expand the scope of constitutionally protected fundamental rights.
*9 It is well established that the only suspect classifications demanding heightened scrutiny under the Equal Protection Clause
are race and related proxies such as national origin, religion and gender, often called a quasi-suspect class. Before Windsor every
Federal Circuit rejected the argument that sexual orientation should receive heightened scrutiny. The Supreme Court's own
cases, including Windsor, have never applied heightened scrutiny to this classification, instead applying rational basis review.
Plaintiffs are simply not similar to opposite sex couples in all relevant respects when it comes to the governmental institution
of marriage. The reason for the government to recognize marriage is not to recognize the love between the participants, but to
encourage two people who might create and bring into society a child to remain committed to one another even if their personal
commitment cools. The argument that Colorado's marriage laws discriminate on the basis of gender fails. Federal and many
state courts have rejected the argument that traditional marriage laws discriminate on the basis of gender, as opposed to sexual
orientation. Defining marriage as the union of a man and a woman does not discriminate on the basis of sex because it treats
men and women equally-each man or woman may marry one person of the opposite sex and each man or woman is prohibited
from any other marital arrangement.
If a statute does not abridge a fundamental right, it will withstand judicial scrutiny if it bears a reasonable relation to a legitimate
state interest. Washington v. Glucksberg, 521 U.S. 702, 722 (1997). Loving does not open the door to same-sex marriage, but
affirms that marriage is a traditional institution subject to the State's police powers. Instead, plaintiffs must rely on the Loving
court's statement that Virginia's law also violates the Due Process Clause because marriage is a fundamental civil right. The
one paragraph devoted to Due Process recognized only that race cannot be used as a basis for infringing on the fundamental
right to marry.
Colorado's marriage laws were not borne of hatred, animus or supremacy; rather they stem from the traditional view that
marriage is linked to procreation and biological kinship. Throughout Colorado's existence, marriage as a one-man, one-woman
institution has been a foregone conclusion. Although same-sex relationships are a basic and intimate exercise of personal
autonomy, same-sex governmental marriage is not deeply rooted in Colorado's history and traditions, or the Nation's for that
matter. The right to marry someone of the same sex is not a liberty interest so rooted in the traditions and conscience of our
people as to be ranked as fundamental. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Colorado, like many other states,
has placed restrictions on those who may marry by adopting laws proscribing certain people from marrying despite their love
and commitment.
Legal precedent requires the application of the rational basis test. Rational basis is the most relaxed and tolerant form of judicial
scrutiny under the Equal Protection Clause. City of Dallas v. Stanglin, 490 U.S. 19, 26 (1989). The laws must be given a
strong presumption of validity. Heller, 509 U.S. at 320. The law must be upheld so long as there is a plausible policy reason
for the classification. Nordlinger v. Hahn, 505 U.S. 1, 11 (1992). Laws should not be overturned unless the varying treatment
of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only
conclude that the [classifications] were irrational. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000).
*10 Colorado has a rational basis in seeking to encourage social institutions that help avoid the social problems of children
being born and raised without both parents around to raise them. The traditional institution of marriage serves the state's
important governmental interest in discouraging the creation of children through those relationships outside the optimal
environment for children to be born into and raised to adulthood. Colorado has numerous laws based on the interest of
encouraging mothers and fathers to be responsible parents to their children whenever possible. But how to help raised children
whose biological parents have failed to take care of them is not the problem that government marriage aims to mitigate. The
problem is, again, that opposite-sex couples are apt to create such children, and left to their own devices they are not always
as committed to long-term parenting as society wants and needs. Government marriage is meant to try to fight the instinct to
create children without remaining committed to their upbringing into adulthood.
Colorado has many other rational bases for continuing to adhere to the traditional marriage structure. The value of gender
diversity in parenting; encouraging adequate reproduction for society to support itself; and promoting stability and responsibility
in marriages between mothers and fathers for their children's sake.
Amicus Brief of Alliance Defending Freedom
The Amicus Brief tracked many of the same arguments and legal authority cited by and relied upon by the State. As previously
noted in the Court's Order of May 30, 2014:
There were approximately 35 separate publications, treatises, articles, books and other materials referenced within the Amici
brief. The full text of these materials was not attached and only snippets or paraphrases were provided. The Court has no
intention of retrieving any of the articles, books or materials for reading. Inasmuch as only select phrases were referenced, there
is no way to determine for certain that any of the materials were addressed to the interpretation of the law or the lawmaking
process. The titles of most of the publications, however, clearly suggest that they are addressed to sociological and moral issues
involved in marriage, divorce and adolescents. The Court finds that the publications, studies and articles cited in the Amici brief
are not legislative facts and will not be considered in ruling on the cross-motions for summary judgment.
Adco Response
The State argued that the standard for review for plaintiffs' Equal Protection claims is the rational basis test.
11
Plaintiffs
believe that heightened Equal Protection scrutiny is appropriate. The State's claims that no Circuit Court of Appeals has applied
heightened scrutiny to classification based on sexual origination, was based on cases handed down before the Windsor decision.
In the Windsor opinion in the Second Circuit, the court held that our conclusion [is] that homosexuals compose a class that is
subject to heightened scrutiny. We further conclude that the class is quasi-suspect ... [.] Windsor v. United States, 699 F.3d 169,
185 (2d Cir. 2012). When the Supreme Court affirmed the judgment of the Second Circuit, it did not comment on this holding,
much less disapprove of it. Adco Plaintiffs addressed the line of cases addressing the heightened scrutiny standard. Although
Windsor did not identify the appropriate level of scrutiny, its discussion is manifestly not representative of deferential review.
Far from affording the statute the presumption of validity, Windsor found DOMA unconstitutional because no legitimate
purpose overcomes the purpose and effect to disparage and to injure. Windsor, 133 S. Ct. at 2696.
Even if this Court declines to find that homosexual persons are a quasi-suspect class and applies true intermediate scrutiny, it
must still carefully consider not only the relationship between the marriage bans and the proffered reasons, but the legislative
and political histories which led up to their enactment as well as their actual purpose and effect.
*11 The legislative record is now on file and demonstrates that the purpose and intent of Colorado's ban on same gender
marriage was solely intended to ban same gender marriage and thus to deny same gender couples the same right to marry
the legislature gave to heterosexual couples. No other purpose appears anywhere in the legislative records. It was not enacted
to protect children or foster an ideal child-rearing environment. In Windsor, the Supreme Court noted, [T]he Constitution's
guarantee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group can
justify disparate treatment of that group ... In determining whether a law is motivated by an improper purpose or animus,
[d]iscrimination of an unusual character especially requires careful consideration. Id. at 2693.
A fundamental requirement of the Equal Protection Clause is that all laws must be enacted to further a legitimate governmental
purpose and not to disadvantage a particular group. When the primary purpose and effect of a law is to harm an identifiable
group, the fact that the law may also incidentally service some other neutral governmental interest cannot save it from
unconstitutionality. Obergefell, 962 F.Supp.2d at 995. When a law has the purpose and effect of imposing legal disabilities
on same gender couples, courts may not uncritically defer to the state's proffered justification, but must determine whether any
justification exists that is sufficiently strong to justify the harms imposed on same gender couples and their children. SmithKline
Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 482-83 (9th Cir. 2014).
Under the rational basis test, a state law does not violate the Equal Protection Clause if the statutory classification is rationally
related to a legitimate governmental purpose. Heller, 509 U.S. at 320. The State cannot show that the marriage ban is rationally
related to its justification. The State cannot rely on a classification whose relationship to an asserted goal is so attenuated as to
render the distinction arbitrary or irrational. City of Cleburne, 473 U.S. at 447. Every state and federal court which has applied
the rational basis test to marriage exclusion laws post-Windsor has found that the laws do not satisfy even the deferential test
because there is no logical connection between the stated purpose and the effect of the laws.
The State has pronounced that this case is about the narrower issue of government marriage, and the problem caused by
uncommitted opposite-sex couples that it seeks to address. The State fails to explain how excluding same gender couples from
government marriage will encourage opposite gender, procreative couples to marry each other before having children. This
argument is the legal equivalent of grasping at straws. The State's argument ignores the fact under its definition of government
marriage, it still allows, and always has allowed, couples to marry who have neither the intent nor the ability to procreate. Unwed
couples are as free to procreate after the Marriage Bans were enacted as they were before. The State's definition of marriage
flies in the face of Supreme Court decisions defining the real meaning of marriage. Every case since Windsor to address the
question of same gender marriage has held that marriage is not a child-centric institution, since infertile men and women and
couples who choose not to procreate are allowed to marry.
Denver Response
The State has offered no support for its post hoc definition of marriage. The State has attempted to create a new definition of
marriage, untethered to history or common sense. Civil marriage is far broader than the State's narrow definition.
As held in Griswold:
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial
or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
*12 Griswold, 381 U.S. at 486.
The Marriage Bans cannot withstand Equal Protection scrutiny under any standard of review. As the Ninth Circuit has now
recognized, the Supreme Court's decision in Windsor, while not expressly using the phrases heightened scrutiny or suspect
class, plainly applied a more exacting analysis to the Federal Marriage Ban than traditional rational basis review. SmithKline,
740 F.3d at 483.
Because the Marriage Bans single out individuals for differential treatment based on a suspect classification, they merit
heightened scrutiny. Same-sex couples meet the traditional four part test for membership in a suspect class. [C]lassifications
based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore
be subjected to strict judicial scrutiny. Frontiero v. Richardson, 411 U.S. 677, 688 (1973). In trying to avoid application of
heightened scrutiny, the State claims that heightened scrutiny does not apply because the Marriage Bans do not discriminate
on the basis of sex because they treat [ ] men and women equally. This argument has been rejected by the Supreme Court
in Loving.
There is no rational relationship between any legitimate governmental purpose and the Marriage Bans. According to the State,
the sole purpose of civil marriage is to discourage procreating without commitment and since same sex couples do not
significantly contribute to this problem, the state's use of marriage to help mitigate it sensibly does not include them. The
Marriage Ban exacerbates the very problem the State purportedly seeks to solve by insisting that the children of same-sex
couples continue to be denied the stability and dignity of their parents' marriage. Further, the State's asserted interest is belied
by its own laws. No state, including Colorado, restricts marriage to the procreative and the fertile.
The State has misrepresented the holding and history of Loving. Seven federal courts have relied on Loving in finding that
marriage bans, like the ones at issue here, violate same-sex couples' fundamental right to marry. Further, Loving is not limited
to racial issues. Instead, it went farther and held that the laws violated the Loving couple's right to marry. The Supreme Court
has stated that, Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court
confirm that the right to marry is of fundamental importance to all individuals. Zablocki v. Redhail, 434 U.S. 374, 383 (1978).
Plaintiffs are not seeking a boundary-less right to marry whomever they may desire, as claimed by the State. Instead,
plaintiffs seek to exercise the same right enjoyed by opposite-sex couples, the right to choose one's spouse subject to reasonable
restrictions. The State's notation of laws limiting marriage highlights the difference between legitimate limitations on marriage
and the Marriage Bans. The Marriage Bans target same-sex couples based on their sexual orientation.
The Hickenlooper Brief
*13 While the State's Attorney General is defending the same-sex marriage ban, the Governor is doubtful that Amendment
43 and related statutes are constitutional based upon evolving jurisprudence. This dispute inevitably may require the Court to
undertake an analysis about what level of scrutiny to apply under the Due Process and Equal Protection Clauses of the United
States Constitution. Regardless of the level of scrutiny that is applied-no state ban on same-sex marriage has survived in the
wake of Windsor. Rather than weighing in on these issues which have been thoroughly addressed by the parties, the Governor's
brief addressed whether the four claims brought against the Governor pursuant to 42 U.S.C. 1983 should stand. Plaintiffs are
required to show that the Governor personally participated in the deprivation of their civil rights. First, a government official
must be exercising some grant of power from the state to be held liable. The second part of the inquiry focuses on whether a
party is a state actor. The Governor does not contest that he is a state actor, but the missing piece is whether he has exerted any
power granted to him to deny plaintiffs their civil rights. Federal courts have required some level of personal participation
for a governor to be held liable in his official capacity under 42 U.S.C. 1983. The Governor did not direct the clerk and
recorders to act in a certain manner. Likewise the Governor does not participate in the enforcement of Colorado's marital laws.
The Governor's generalized duty to enforce the laws is insufficient to attach liability under 42 U.S.C. 1983 for Colorado's
same-sex marriage ban.
The State's Combined Response
One thing holds true-marriage remains a matter within the State's sovereign power to regulate and, consequently, the states
may, and do, limit who may marry who based on a number of factors. With the growing number of lower court decisions that
have struck other states' laws that either ban or do not recognize same-sex marriage, a temptation to simply declare Colorado's
marriage laws unconstitutional may exist. Courts are not arbiters of moral and political debates, which this case presents. Before
this Court wades into the moral and political debate inherent in this lawsuit, consider the following: Can a rational person believe
that redefining marriage, so as to belittle it to no more than a status symbol or congratulatory certificate, could damage the
institution of marriage and its role in helping to encourage heterosexual couples to stay together to raise the children they create?
Plaintiffs relied heavily on an isolated portion of the Windsor decision to support their argument that Colorado's marriage laws
are designed to deprive same sex couples full protection and benefit of the law and of social recognition and serve to injure,
stigmatize, demean and degrade same-sex couples.
Colorado has no obligation to recognize marriages that contradict its strong policy interests. The full faith and credit clause
does not require one state to substitute for its own statute, applicable to persons and events with it, the conflicting status of
another state. Nevada v. Hall, 440 U.S. 410, 423-24 (1979).
The State again argued that the sexual orientation is not a suspect class requiring application of heightened scrutiny. The
Supreme Court has never concluded that sexual orientation constitutes a quasi-suspect or suspect class. The rational basis review
should be applied and the laws upheld. Colorado's definition of marriage supports conceivable and legitimate state ends. The
State has an interest in maximizing the number of children that are raised by their biological parents.
The echo-chamber of cases coming after Windsor all share the same flaw of misreading the Supreme Court's Windsor opinion,
and often, engaging in taking sides in the moral and social debate about marriage that has little to do with relevant constitutional
claims.
If government marriage is truly about love and commitment, then the message communicated by the State will undermine the
role of marriage as a prophylactic for inevitable sexual relations between opposite-sex couples that are naturally capable of
producing children. Marriage as an institution based on emotion will also communicate that marriages can be discarded later
in time, due to nothing more than the emotional whims of the parties to the marriage.
Plaintiffs have no answer to Glucksberg. Glucksberg remains the binding, definitive rule that this Court must determine if the
claimed right is (1) objectively, deeply rooted in this Nation's history and traditions, and (2) the right is carefully described.
Issues
*14 1. Are the Challenged Laws
12
unconstitutional?
a. Do the Challenged Laws violate plaintiffs' due process rights?
b. Do the Challenged Laws violate plaintiffs' equal protection rights?
2. Should civil union survive as a separate but equal institution?
3. Should Denver Plaintiffs' claims against Governor Hickenlooper be dismissed?
4. Should the Court issue a stay of its ruling?
Principles of Law
C.R.C.P. 56(c): Summary Judgment and Rulings on Questions of Law- Motion and Proceedings Thereon
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.
Standard of Review
Summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Peterson v. Halsted, 829 P.2d 373, 376 (Colo. 1992). The court must base its evaluation of
genuine issues of material fact on the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits. C.R.C.P. 56(c). The trial court may not assess witness credibility and the weight of evidence when determining a
motion for summary judgment. Anderson v. Vail Corp., 251 P.3d 1125, 1127 (Colo. App. 2010) (quoting Kaiser Found. Health
Plan of Colo. v. Sharp, 741 P.2d 714, 718 (Colo. 1987)).
The moving party bears the initial burden of establishing that no genuine issue of material fact exists; any doubt should be
resolved in favor of the non-moving party. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251,
1256 (Colo. 1995). This must be an affirmative demonstration of an absence of evidence in the record. Continental Airlines,
Inc. v. Keenan, 731 P.2d 708, n. 2 (Colo. 1987). Once the moving party meets its burden, the opposing party then must establish
that there is a genuine issue for trial. Id. All doubts as to the existence of a triable issue of fact must be resolved against the
moving party. Martini v. Smith, 42 P.3d 629, 632 (Colo. 2002).
Stipulation and Agreement of the Parties
On page 2 of the Adco Motion it was recited as follows:
The parties have stipulated that this case may be decided on summary judgment because there are no disputed issues of material
fact and because the questions it presents are questions which arise under the Constitutions and laws of the United States and
the State of Colorado. C.R.C.P. 56.
In a footnote on the first page of the State's Adco Motion it was recited, inter alia, that:
Because both cases are legally and factually similar, and no material facts are disputed, the State is filing identical summary
judgment briefs in the two cases in the interest of judicial efficiency.
Analysis
1. Are the Challenged Laws unconstitutional?
a. Do the Challenged Laws violate plaintiffs' due process rights?
*15 The [Due Process] Clause also provides heightened protection against government interference with certain fundamental
rights and liberty interests.
Glucksburg, 521 U.S. at 720.
As Justice Brandeis (joined by Justice Holmes) observed, [d]espite arguments to the contrary which had seemed to me
persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as
to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution
from invasion by the States.
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 846-47 (1992) (quoting Whitney v. California, 274 U.S. 357,
373 (1927)).
As we stated recently in Flores, the Fourteenth Amendment forbids the government to infringe ... fundamental liberty interests
at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.
Glucksberg, 521 U.S. at 721 (quoting Flores, 507 U.S. at 302 (1993).
Marriage as a fundamental right
Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.
Loving v. Virginia, 388 U.S. 1, 12 (1967) (citing Skinner v. State of Oklahoma, 316 U.S. 535, 541 (1942)).
The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the
relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance
of a family-marriage, e.g., Zablocki v. Redhail, supra; childbirth, e.g., Carey v. Population Services International, supra; the
raising and education of children, e.g., Smith v. Organization of Foster Families, supra; and cohabitation with one's relatives,
e.g., Moore v. East Cleveland, supra. Family relationships, by their nature, involve deep attachments and commitments to the
necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs
but also distinctively personal aspects of one's life. Among other things, therefore, they are distinguished by such attributes as
relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in
critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the
considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty.
Roberts v. U.S., 468 U.S. 609, 619-20 (1984).
Although (t)he Constitution does not explicitly mention any right of privacy, the Court has recognized that one aspect of the
liberty protected by the Due Process Clause of the Fourteenth Amendment is a right of personal privacy, or a guarantee
of certain areas or zones of privacy. This right of personal privacy includes the interest in independence in making certain
kinds of important decisions. While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that
among the decisions that an individual may make without unjustified government interference are personal decisions relating
to marriage
*16 Carey v. Population Services Intern. 431 U.S. 678, 684-85 (1977) (citations omitted).
In the first of these the supreme court of Kentucky said that marriage was more than a contract; that it was the most elementary
and useful of all the social relations; was regulated and controlled by the sovereign power of the state, and could not, like
mere contracts, be dissolved by the mutual consent of the contracting parties, but might be abrogated by the sovereign will
whenever the public good, or justice to both parties, or either of the parties, would thereby be subserved; that being more than
a contract, and depending especially upon the sovereign will, it was not embraced by the constitutional inhibition of legislative
acts impairing the obligation of contracts. In the second case the supreme court of Rhode Island said that marriage, in the
sense in which it is dealt with by a decree of divorce, is not a contract, but one of the domestic relations. In strictness, though
formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than
any contract of which the parties are capable, and, as to these, uncontrollable by any contract which they can make.
Maynard v. Hill, 125 U.S. 190, 212 (1888).
The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights
to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically
protected.
Griswold, 381 U.S. at 495.
This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties
protected by the Due Process Clause of the Fourteenth Amendment.
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974).
The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed
to the plaintiff in error by the Fourteenth Amendment:
No state ... shall deprive any person of life, liberty or property without due process of law.
While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration
and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint
but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge,
to marry [...]
Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
Bankruptcy is hardly akin to free speech or marriage or to those other rights, so many of which are imbedded in the First
Amendment, that the Court has come to regard as fundamental and that demand the lofty requirement of a compelling
governmental interest before they may be significantly regulated.
U.S. v. Kras, 409 U.S. 434, 446 (1973).
But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the
rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man.
Marriage and procreation are fundamental to the very existence and survival of the race.
*17 Skinner, 316 U.S. at 541.
Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of
basic importance in our society, [...] rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation,
disregard, or disrespect.
M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (other citations omitted).
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. Our cases recognize the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a
child. Our precedents have respected the private realm of family life which the state cannot enter. These matters, involving
the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept
of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the
attributes of personhood were they formed under compulsion of the State.
Casey, 505 U.S. at 851 (citations omitted).
In Planned Parenthood [ ], the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause.
The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating
to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the
Constitution demands for the autonomy of the person in making these choices, we stated as follows:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal
dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right
to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these
matters could not define the attributes of personhood were they formed under compulsion of the State.
Lawrence, 539 U.S.at 573-74 (2003) (quoting Casey, 505 U.S. at 851).
The State does not dispute that the right to marry is one of the fundamental rights protected by the United States Constitution
[.] See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384 (1978) ([D]ecisions of this Court confirm that the right to marry is of
fundamental importance for all individuals.); United States v. Kras, 409 U.S. 434, 446 (1973) (concluding the Court has come
to regard marriage as fundamental); Loving v. Virginia, 388 U.S. 1, 12 (1967) (The freedom to marry has long been recognized
as one of the vital personal rights essential to the orderly pursuit of happiness by free men.); Skinner v. Oklahoma ex. rel.
Williamson, 316 U.S. 535, 541 (1942) (noting marriage is one of the basic civil rights of man fundamental to our existence and
survival); Maynard v. Hill,125 U.S. 190, 205, 211 (1888) (characterizing marriage as the most important relation in life and
as the foundation of the family and society, without which there would be neither civilization nor progress.).
*18 While the right to marry is not explicitly mentioned in the text of the Constitution, this right is nevertheless protected by
the guarantee of liberty under the Due Process Clause.
De Leon v. Perry, 975 F.Supp.2d 632, 657-58 (W.D. Tex. 2014).
The right to marry is an example of a fundamental right that is not mentioned explicitly in the text of the Constitution but is
nevertheless protected by the guarantee of liberty under the Due Process Clause. The Supreme Court has long emphasized that
the right to marry is of fundamental importance. In Maynard v. Hill, the Court characterized marriage as the most important
relation in life and as the foundation of the family and society, without which there would be neither civilization nor progress.
125 U.S. 190, 205, 211 (1888). In Meyer v. Nebraska, the Court recognized that the right to marry, establish a home and bring
up children is a central part of the liberty protected by the Due Process Clause. 262 U.S. 390, 399 (1923). And in Skinner v.
Oklahoma ex rel. Williamson, the Court ruled that marriage is one of the basic civil rights of man. 316 U.S. 535, 541 (1942).
In more recent cases, the Court has held that the right to marry implicates additional rights that are protected by the Fourteenth
Amendment. For instance, the Court's decision in Griswold v. Connecticut, in which the Court struck down a Connecticut law
that prohibited the use of contraceptives, established that the right to marry is intertwined with an individual's right of privacy.
381 U.S. 479, 486 (1965).
Kitchen, 961 F.Supp.2d at 1197.
The United States Supreme Court initially discussed the constitutional right to marry as an aspect of the fundamental substantive
liberty protected by the due process clause of the federal Constitution (see Meyer v. Nebraska, 262 U.S. 390, 399 (1923)),
but thereafter in Griswold v. Connecticut, 381 U.S. 479, 485 (1965), the federal high court additionally identified the right to
marry as a component of a right of privacy protected by the federal Constitution.
In re Marriage Cases, 183 P.3d at 420.
There is no question that the right to marry is a fundamental right.
What right to marry is at stake?
The Court heartily endorses the recent holding by the Tenth Circuit in Kitchen v. Herbert that the marital right at issue was
never framed as the right to interracial marriage in Loving or the prisoner's right to marriage in Turner or the dead-beat
dad's right to marriage in Zablocki. See Kitchen, 961 F.Supp.2d at 1200. Instead, the Supreme Court has repeatedly utilized
the term fundamental right to marry without any limitations. The Court rejects the State's attempt to too narrowly describe
the marital right at issue to the right to marry a person of the same sex.
The Court also concurs with the growing number of courts which have held that the fundamental right to marry includes the
right to remain married. See Kitchen, 961 F.Supp.2d at 1201; Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 WL 1909999, at
*13 (D. Idaho May 13, 2014); De Leon, 975 F.Supp.2d at 654; Henry v. Himes, No. 1:14-cv-129, 2014 WL 1418395, at *7
(S.D. Ohio Apr. 14, 2014); Obergefell, 962 F.Supp.2d at 978.
Are the Marriage Bans necessary to promote a compelling state interest?
*19 When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless
it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. Zablocki, 434
U.S. at 388 (citations omitted).
The State has variously described its interest in maintaining the Marriage Bans as follows:
It is an attempt to deal with a problem, and one that has become worse in recent years: the creation of children by parents who
are not committed to raising them.
State's Motions, p. 6.
So again, Government Marriage, as distinguished from personal or religious or familial marriage, is not about recognizing
or congratulating individuals who love each other. It is about avoiding the problems that society encounters when childbirth
outside monogamous relationships becomes widespread. Same-sex couples, biologically speaking, simply cannot contribute
to this problem.
State's Motions, p.7.
As noted above and explained more below, the animating reason for the government to recognize marriage is not to recognize the
love between the participants, but to encourage two people who might create and bring into society a child to remain committed
to one another even if their personal commitment cools.
The traditional institution of marriage serves the state's important government interest in discouraging the creation of children
through those relationships outside the optimal environment for children to be born into and raised to adulthood.
Government marriage is meant to try to fight the instinct to create children without remaining committed to their upbringing
into adulthood. This problem is not caused by same-sex couples, at least not to any significant extent, and the state thus need
not extend this part of its solution to them.
The state has an interest in maximizing the number of children that are raised by their biological parents.
State's Combined Response, p. 19.
The avowed State interest can be distilled down to encouraging procreation and marital commitment for the benefit of the
children. The problem with this post-hoc explanation is that it utterly ignores those who are permitted to marry without the
ability or desire to procreate. It is merely a pretext for discriminating against same-sex marriages.
This recently fabricated state interest is also belied by legislative history which accompanied the enactment of the 2000
amendments to C.R.S. 14-2-104. On February 21, 2000, at the second reading on HB 1249, Rep. Mark Paschall stated, What
we're opening the door here to, and even though the issue is being framed around same sex relationships, we're talking about
opening the door to polygamy, polyandry, and polyamorous relationships. Later in the debate, Rep. Paschall stated that [t]his
is going to allow incestuous relationships. We don't want to be allowing any kind of solemnized relationship in the State of
Colorado, and that's what this is going to do. Rep. Doug Dean stated, [b]ut where I think it's important for me as a legislator
to say that we don't want to recognize same-sex unions, same-sex marriages, because we believe that it contributes to the decay
of society ... it will be harmful to our state. Out of more than a dozen comments on the bill, only one comment was made
about marriage providing a stable environment for children to be brought into the world and raised. But that same senator,
John Andrews completed his comments noting that, marriage, as an institution, thousands of years old, I would argue, is
strengthened, when we maintain that traditional definition.
*20 Likewise, when Amendment 43 was being submitted to the voters, the Amendment 43 Blue Book told voters that one
reason to pass Amendment 43 was to preserv[e] the commonly accepted definition of marriage. Marriage as an institution has
historically consisted of one man and one woman.
This notion of responsible procreation has been raised many times before and been met without success. See, e.g., Perry v.
Brown, 671 F.3d 1052, 1089 (9th Cir. 2012), vacated and remanded, Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013); Perry
v. Schwarzenegger, 704 F. Supp.2d 921, 999 (N.D. Cal. 2010); Kitchen, 961 F.Supp.2d at 1211-12; De Leon, 975 F.Supp.2d at
653; DeBoer v. Snyder, 973 F.Supp.2d 757, 768 (E.D. Mich. 2014); Bishop v U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1291
(N.D. Okla. 2014); Geiger v. Kitzhaber, No. 6:13-cv-01834-MC, 2014 WL 2054264, at *13 (D. Or. May 19, 2014); Griego
v. Oliver, 316 P.2d 865, 886 (N.M. 2013).
To the extent the State's interest is in preserving the historical tradition of one-man one-woman marriage, it cannot survive
any level of scrutiny.
Proponents suggest that these state interests in tradition arise from a legitimate desire to discourage individuals from abusing
marriage rights by marrying for the sole purpose of qualifying for benefits for which they would otherwise not qualify ... The
[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis. Heller v. Doe, 509 U.S.
312, 326 (1993). This proffer lacks any rational basis.
Bostic v. Rainey, 970 F. Supp. 2d 456, 474 (E.D. Va. 2014) (citation omitted).
The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice STEVENS came to
these conclusions: Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a
State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the
practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual
decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce
offspring, are a form of liberty protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection
extends to intimate choices by unmarried as well as married persons. Justice STEVENS' analysis, in our view, should have
been controlling in Bowers and should control here.
Lawrence, 539 U.S. at 577-78 (citations omitted).
The Court holds that the State does not have a sufficiently important/ compelling interest in forbidding same-sex marriages
or nullifying Colorado residents' valid out-of-state same-sex marriages. The Marriage Bans are unconstitutional because they
violate plaintiffs' due process rights.
b. Do the Challenged Laws violate plaintiffs' equal protection rights?
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction
the equal protection of its laws. U.S. CONST. amend. XIV, 1.
Instead, the Equal Protection Clause is a more particular and profound recognition of the essential and radical equality of all
human beings. It seeks to ensure that any classifications the law makes are made without respect to persons, that like cases
are treated alike, that those who appear similarly situated are not treated differently without, at the very least, a rational
reason for the difference.
*21 Vigil, 666 F.3d at 684-85 (quoting Enquist v. Oregon Dep't of Agric., 553 U.S. 591, 601 (2008)).
In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment, U.S. Const., Amdt.
14, 1, we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must
be rationally related to a legitimate governmental purpose. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17
(1973); cf. Lyng v. Automobile Workers, 485 U.S. 360, 370, (1988). Classifications based on race or national origin, e.g., Loving
v. Virginia, 388 U.S. 1, 11 (1967), and classifications affecting fundamental rights, e.g., Harper v. Virginia Bd. of Elections,
383 U.S. 663, 672 (1966), are given the most exacting scrutiny. Between these extremes of rational basis review and strict
scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex
or illegitimacy.
Jeter, 486 U.S. at 461.
To withstand intermediate scrutiny, a classification must be substantially related to an important government interest. Clark
v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 100 L.Ed.2d 465 (1988). Substantially related means that the explanation must
be exceedingly persuasive. United States v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264, 135 L.Ed.2d 735 (1996) (quoting
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S. Ct. 3331, 73 L.Ed.2d 1090 (1982)). The justification must
be genuine, not hypothesized or invented post hoc in response to litigation. Id.
Windsor, 699 F.3d at 185, cert. granted, 133 S. Ct. 786 (2012) and aff'd, 133 S. Ct. 2675 (U.S. 2013), cert. denied, 133 S. Ct.
2884 ( 2013), cert. denied, 133 S. Ct. 2885 (2013).
The Court has previously found that the State's professed governmental interest was a mere pretext for discrimination against
same-sex marriages created post hoc in response to litigation. Thus, the Marriage Bans cannot even pass muster under the
rational basis analysis. The sole basis for precluding same-sex marriage is self-evident-the parties are of the same sex and for
that reason alone do not possess the same right to marry (or remain married) as opposite-sex couples. The Court holds that the
Marriage Bans are unconstitutional because they violate plaintiffs' equal protection rights.
2. Should civil union survive as a separate but equal institution?
Having found that the Marriage Bans are unconstitutional, it would seem that the continuation of civil unions is a moot issue.
Nevertheless, the Court will analyze Colorado's civil unions as it may bear on a legitimate alternative to civil marriage.
The general assembly declares that the public policy of this state, as set forth in section 31 of article II of the state constitution,
recognizes only the union of one man and one woman as a marriage. The general assembly declares that the purpose of this
article is to provide eligible couples the opportunity to obtain the benefits, protections, and responsibilities afforded by Colorado
law to spouses consistent with the principles of equality under law and religious freedom embodied in both the United States
constitution and the constitution of this state. The general assembly declares that a second purpose of the act is to protect
individuals who are or may become partners in a civil union against discrimination in employment, housing, and in places of
public accommodation. The general assembly further finds that the general assembly, in the exercise of its plenary power, has
the authority to define other arrangements, such as a civil union between two unmarried persons regardless of their gender, and
to set forth in statute any state-level benefits, rights, and protections to which a couple is entitled by virtue of entering into a
civil union. The general assembly finds that the Colorado Civil Union Act does not alter the public policy of this state, which
recognizes only the union of one man and one woman as a marriage. The general assembly also declares that a third purpose
in enacting the Colorado Civil Union Act is to state that Colorado courts may offer same-sex couples the equal protection of
the law and to give full faith and credit to recognize relationships legally created in other jurisdictions that are similar to civil
unions created by this article and that are not otherwise recognized pursuant to Colorado law.
*22 C.R.S. 14-15-102: Civil Unions.
The dissimilitude between the terms civil marriage and civil union is not innocuous; it is a considered choice of language
that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status. In re Opinions of the
Justices to the Senate, 802 N.E.2d at 570. The fact is that those in a civil union do not and cannot obtain the same benefits
and protections of federal law as married couples including filing joint tax returns, Family Medical Leave Act benefits, and
facing loss of social security and veterans benefits. If civil unions were somehow the equivalent of marriage, there would be
no real need for this second tier relationship. The State paid only lip-service to the plaintiffs' arguments that civil unions were
not unlike the separate but equal black and white educational systems.
13
Especially in light of the long and undisputed history of invidious discrimination that gay persons have suffered; see part V A
of this opinion; we cannot discount the plaintiffs' assertion that the legislature, in establishing a statutory scheme consigning
same sex couples to civil unions, has relegated them to an inferior status, in essence, declaring them to be unworthy of the
institution of marriage. In other words, [b]y excluding same-sex couples from civil marriage, the [s]tate declares that it is
legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message
is that what same-sex couples have is not as important or as significant as real marriage, that such lesser relationships cannot
have the name of marriage.
Kerrigan, 957 A.2d at 417.
The Court finds that confining same-sex couples to civil unions is further evidence of discrimination against same-sex couples
and does not ameliorate the discriminatory effect of the Marriage Bans.
3. Should Denver Plaintiffs' claims against Governor Hickenlooper be dismissed?
Denver Plaintiffs have asserted four claims for relief against Governor Hickenlooper based on 42 U.S.C. 1983-due process and
equal protection claims for denying Unmarried Plaintiffs from getting married and due process and equal protection claims for
not recognizing Married Plaintiffs' out-of-state marriages.
According to Denver Plaintiffs' complaint:
Article IV, section 2 of the Colorado Constitution states: The supreme executive power of the state shall be vested in the
governor, who shall take care that the laws be faithfully executed. He is responsible for upholding and ensuring compliance
with the state constitution and statutes prescribed by the legislature, including Colorado's laws barring same-sex couples from
marriage and refusing to recognize the valid out-of-state marriages of same-sex couples. Governor Hickenlooper also bears the
authority and responsibility for the formulation and implementation of policies of the executive branch. Governor Hickenlooper
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.
Governor Hickenlooper's official residence is in the City and County of Denver, Colorado. He is being sued in his official
capacity.
*23 Paragraph 85 of the Denver Plaintiffs' complaint avers that:
As Colorado's Governor and chief executive officer, defendant Hickenlooper's duties and actions to enforce Colorado's
exclusion of same-sex couples from marriage, including those actions taken pursuant to his responsibility for the policies and
actions of the executive branch relating to, for example and without limitation, health insurance coverage, vital records, tax
obligations, and state employee benefits programs, violate plaintiffs' fundamental right to marry; fundamental interests in liberty,
dignity, privacy, autonomy, family integrity, and intimate association; and the fundamental right to travel under the Fourteenth
Amendment to the United States Constitution.
Defendants similarly argue that the section 1983 damages claim against Hickenlooper and Kelley should be dismissed because
they have no personal involvement in the alleged constitutional deprivations, and there is no supervisory liability under section
1983. Once again, Defendants are correct. For the reasons discussed above, Plaintiffs have not plead or otherwise shown how
Defendants Hickenlooper and Kelley have had any personal involvement in the enforcement of the RES. See Foote v. Spiegel,
118 F.3d 1416, 1423 (10th Cir.1997) (Individual liability under 1983 must be based on personal involvement in the alleged
constitutional violation.).
Am. Tradition Inst. v. Colorado, 876 F. Supp. 2d 1222, 1239-40 (D. Colo. 2012).
Denver Plaintiffs have only alleged a generalized oversight of matters relating to marriage in the State of Colorado.
Here, the Oklahoma officials' generalized duty to enforce state law, alone, is insufficient to subject them to a suit challenging
a constitutional amendment they have no specific duty to enforce. See Women's Emergency Network v. Bush, 323 F.3d 937,
949-50 (11th Cir. 2003) (Where the enforcement of a statute is the responsibility of parties other than the governor (the cabinet
in this case), the governor's general executive power is insufficient to confer jurisdiction.); see also Waste Mgm't. Holdings, Inc.
v. Gilmore, 252 F.3d 316, 330-31 (4th Cir. 2001) (concluding governor's general duty to enforce the laws of Virginia insufficient
when he lacks a specific duty to enforce the challenged statutes); Okpalobi v. Foster, 244 F.3d 405, 422-25 (5th Cir. 2001) (en
banc) (constitutional challenge to state tort statute against Governor and Attorney General not viable under the Ex Parte Young
doctrine because no enforcement connection existed between Governor or Attorney General and the statute in question); 1st
Westco Corp. v. Sch. Dist. of Phila.,6 F.3d 108, 112-13, 116 (3d Cir. 1993) (If we were to allow [plaintiffs] to join ... [the State
officials] in this lawsuit based on their general obligation to enforce the laws ..., we would quickly approach the nadir of the
slippery slope; each state's high policy officials would be subject to defend every suit challenging the constitutionality of any
state statute, no matter how attenuated his or her connection to it.).
*24 Bishop, 333 F.App'x at 365.
The Court has now declared the Marriage Bans unconstitutional. Although it is likely that the Marriage Bans will remain in
place until further judicial scrutiny by a superior court of law, the Court finds that Denver Plaintiffs have not alleged sufficient
facts to demonstrate that Governor Hickenlooper could be found liable for violating plaintiffs' equal protection or due process
rights by the continuation of the Marriage Bans. Denver Plaintiffs' complaint against Governor Hickenlooper is dismissed
without prejudice.
4. Should the Court issue a stay of its ruling?
After the completion of oral argument the State filed a Partially Stipulated Motion for Stay in the Event of Judgment for the
Plaintiffs on June 25, 2014. Therein it was recited that the Adco Plaintiffs and the State agreed to a stay if the Court ruled in
plaintiffs' favor. The motion declared that the Governor and the Adams County Clerk & Recorder agreed not to oppose the
motion. Denver Plaintiffs and Denver Clerk & Recorder filed a Response in Opposition on June 26, 2014. The State filed a
Reply on June 30, 2014. On July 2, 2014 Adco Plaintiffs withdrew their agreement to a stay based on actions by the State. On
July 2, 2014 Denver Plaintiffs filed a Sur-reply.
Denver Plaintiffs argued that the State had misrepresented the status of stays issued by federal courts. Denver Plaintiffs asserted
that federal law regarding stays is not controlling, but rather that Colorado procedural law applies. Denver Plaintiffs referred
to a four-factor test when considering whether to stay an order denying or granting an injunction. Romero, 307 P.3d at 122.
Denver Plaintiffs also argued that, based on Colorado Supreme Court precedent affirming preliminary injunctions, a declaration
that the Marriage Bans are unconstitutional may preclude entry of a stay. Denver Plaintiffs examined the six-part test set forth
in Rathke v. MacFarlane, 648 P.2d 653-54 (Colo. 1982).
The Court has read and re-read the briefs filed by the parties in an attempt to find any discussion of the grant or denial of an
injunction and has found none. None of the briefs mentioned Rathke or analyzed the facts of this case in light of the six factors set
forth therein. This Court has found the Marriage Bans unconstitutional but has not issued an injunction, mandatory or otherwise.
The State advised in its recent Reply that the United States Supreme Court stayed an injunction granted by a district court in
Utah, involving a challenge to that state's marriage laws.
14
Equally significant is that four Federal Courts of Appeals have
issued stays of the orders finding the marriage bans unconstitutional. Romero indicated that it was recognizing and adopting
federal standards for granting stays.
15
Romero identified four factors to be considered by a court in determining whether to
grant a stay.
16
Romero does not, however, remove the discretion of a trial court to grant a stay. Consequently, the trial court
properly refused to dismiss his suit and acted within its discretion when it stayed the case pending resolution of the appeal.
Rantz v. Kaufman, 109 P.3d 132, 133 (Colo. 2005). [A grant of stay] is ... an exercise of judicial discretion, and [t]he
propriety of its issue is dependent upon the circumstances of the particular case. ([T]he traditional stay factors contemplate
individualized judgments in each case). Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting, e.g., Hilton v. Braunskill, 481
U.S. 770, 777 (1987)).
*25 In addition, the Court has not found language in Romero or Michigan Coalition, requiring that a party seeking a stay must
establish each of the four factors, but that they be considered in exercising the discretion to grant or deny a stay.
17
a. Likelihood of success on the merits
Depending on circumstances in the cases, this factor has taken on several meanings. The probability of success that must
be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay. Michigan
Coalition, 945 F.2d at 153. [S]erious questions going to the merits. Id. at 154 (citing Friendship Materials, Inc. v. Michigan
Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)). The State's ultimate likelihood of success on the merits has become increasingly
in doubt given the avalanche of court decisions striking down same-sex marriage bans. Nevertheless, the grant of a stay by the
Supreme Court in the Utah district court case and the four federal circuit courts suggests that this issue is far from over.
b. The threat of irreparable harm to the State if the stay is not granted
Irreparable harm is a pliant term adaptable to the unique circumstances that an individual case might present. See State
Comm'n on Human Relations v. Talbot County Detention Ctr., 803 A.2d 527, 542 (2002). Generally, irreparable harm has been
defined as certain and imminent harm for which a monetary award does not adequately compensate. Gitlitz v. Bellock, 171
P.3d 1274, 1278-79 (Colo. App. 2007). The State has also identified holdings by appellate courts that held that a state suffers
irreparable injury whenever an enactment of its people is enjoined. Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719
(9th Cir. 1997); O Centro Espirita Beneficiente Uniao De Vegetal. v. Ashcroft, 314 F.3d 463, 467 (10th Cir. 2002) and Planned
Parenthood, 134 S. Ct. at 506. The Court has confirmed the cited holding in these cases and finds that the Court's holding that
the State's Marriage Bans are unconstitutional may constitute irreparable injury.
c. Whether the stay will substantially injure the other parties interested in the proceeding
Plaintiffs have alleged that they have endured discrimination for a substantial period of time and suffered injury from the
enactment of bans on same-sex marriage. Stays of court orders finding the bans against same-sex marriage unconstitutional
are being entered around the United States. The Court cannot find that staying the effect of this Court's Order will result in
substantial injury to the plaintiffs.
d. The public interest in granting the stay
*26 The Marriage Bans came into existence based upon actions taken by the Colorado legislature and an amendment to the
Colorado Constitution based upon a vote of the citizens of this state. While plaintiffs are members of the public, they do not
represent the interests of all of Colorado's citizens. The public has an interest in the orderly determination of the constitutionality
of its laws and granting a stay will effectuate that end.
This Court is under no delusion that the resolution of the issue of same-sex marriages will end with this Court's decision or
any lower courts' decisions. The final chapter of this debate will undoubtedly have to be written in either Denver, Colorado
or Washington, D.C. While the striking down of laws banning same-sex marriages has been progressing at a rapid rate, it will
take time for this issue to be finally resolved. Having considered the Romero factors, all other circumstances of this case, and
the events surrounding the issue of same-sex marriage, the Court finds that a stay is necessary to avoid the instability and
uncertainty which would result in the State of Colorado if the Court did not stay its ruling
18
and for the orderly administration
of justice. The Court orders that this judgment is stayed pending a resolution of this matter on appeal.
Order
The Court holds that the Marriage Bans violate plaintiffs' due process and equal protection guarantees under the Fourteenth
Amendment to the U.S. Constitution. The existence of civil unions is further evidence of discrimination against same-sex
couples and does not ameliorate the discriminatory effect of the Marriage Bans. Denver Plaintiffs' claims against Governor
Hickenlooper are dismissed without prejudice. The Court's Judgment is stayed pending a resolution of the issue on appeal.
Dated this 9
th
day of July, 2014.
By the Court:
<<signature>>
C. Scott Crabtree
District Court Judge
Footnotes
1 Brinkman affidavit.
2 Burd affidavit.
3 Brinkman and Burd affidavits.
4 Parties' Stipulated Facts for Summary Judgment, 1, 3, 6 and 7.
5 Parties' Stipulated Facts for Summary Judgment, 8.
6 Parties' Stipulated Facts for Summary Judgment, 11 and 12.
7 Karen Long Answer, p. 3, Disclaimer.
8 Answer of John W. Hickenlooper, Jr.
9 Denver Motion, p. 15, fn. 2.
10 In a footnote on the first page of the State's Motions it was reflected that the Motions were identical. The Court will refer to the
motions in the singular.
11 The State's argument regarding proving unconstitutionality beyond a reasonable doubt only applies to challenges under the state
constitution. Adco Plaintiffs' claims are brought under the federal constitution and the reasonable doubt standard does not apply.
12 C.R.S. 14-2-104(1)(b) and (2) and Article II, 31 of the Colorado Constitution.
13 The State's argument included a mere 13 lines in a 32-page brief. Combined Response, pp. 18-19.
14 Included in a footnote was the text of the Supreme Court's Order granting the stay of the permanent injunction issued by the U.S.
District Court for the District of Utah pending final disposition of the appeal by the 10
th
Circuit.
15 Romero concluded that the formulation set forth by the Sixth Circuit in Michigan Coalition of Radioactive Material Users, Inc. v.
Griepentrog, 945 F. 2d 150 (6th Cir. 1991), to be the most appropriate test.
16 These factors are not unlike those applied in granting an injunction.
17 These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together. Michigan
Coalition, 945 F.2d at 153.
18
Witness the continued issuance of marriage licenses in Boulder (despite a stay of the 10
th
Circuit decision) which has prompted the
Attorney General to file a lawsuit in Boulder to enjoin the practice.
Burns v. Hickenlooper, Not Reported in F.Supp.2d (2014)
2014 WL 3634834
United States District Court, D. Colorado.
Catherine Burns; Sheila Schroeder; Mark
Thrun; Geoffrey Bateman; Rachel Catt;
Cassie Rubald; Breanna Alexander; Stacy
Parrish; Angela Cranmore; Julianne Deloy;
Karen Collier; and Denise Lord; Plaintiffs,
v.
John W. Hickenlooper, Jr., in his official capacity
as Governor of Colorado; John Suthers, in his
official capacity as Attorney General of Colorado;
and Pam Anderson, in her official capacity as Clerk
and Recorder for Jefferson County, Defendants.
Civil Action No. 14cv01817
RMKLM | Signed July 23, 2014
Danielle C. Jefferis, Darren M. Jankord, David Arthur Lane,
Mari Anne Newman, Killmer, Lane & Newman, LLP,
Denver, CO, for Plaintiffs.
Opinion
ORDER
RAYMOND P. MOORE, United States District Judge
*1 Plaintiffs are six same-sex couples who have been legally
married in another state but whose marriage Colorado does
not legally recognize or who have been refused a Colorado
marriage license, solely because they are same-sex couples.
Two issues are before the Court: (1) whether a preliminary
injunction should be entered enjoining Defendants from
enforcing Article II, Section 31 of the Colorado Constitution
and C.R.S. 142104(1)(b) and 142104(2) (collectively,
Challenged Laws), laws which declare that only a union
between one man and one woman may be recognized as a
marriage in Colorado; and (2) if a preliminary injunction
is ordered, whether such order and this entire proceeding
should thereafter be stayed until such time as Kitchen v.
Herbert, No. 134178, F.3d , 2014 WL 2868044
(10th Cir. June 25, 2014) becomes final. In Kitchen, the Tenth
Circuit found that Utah's ban against same-sex marriage,
which is similar to the Challenged Laws, violated the Due
Process and Equal Protection Clauses of the United States
Constitution. The mandate in Kitchen has been stayed by
the Tenth Circuit pending the disposition of any petition for
writ of certiorari. Upon consideration of all relevant matters,
including argument of counsel, and for the reasons stated
herein, the Plaintiffs' Motion for Preliminary Injunction is
GRANTED; the Defendants' Motion to Stay the preliminary
injunction until resolution of Kitchen is DENIED, but instead
only a temporary stay is GRANTED; and the Defendants'
Motion to Stay further proceedings in this matter, apart from
the preliminary injunction, is GRANTED.
I. PLAINTIFFS' MOTION FOR
PRELIMINARY INJUNCTION
Plaintiffs' civil rights action for declaratory and injunctive
relief seeks to declare the Challenged Laws banning same-
sex marriage as unconstitutional under the United States
Constitution, and to enjoin the Defendants from enforcing
those laws. Plaintiffs' two claims for relief under 42 U.S.C.
1983 allege violations of the Due Process and Equal
Protection Clauses of the Fourteenth Amendment of the
United States Constitution. Plaintiffs have filed a Motion for
Preliminary Injunction (ECF No. 8) supported by affidavits.
Defendants have filed a non-opposition (ECF No. 16),
revealing a far from unified front. Defendant Attorney
General believes Kitchen is incorrect while Defendant
Governor believes Kitchen was correctly decided. Defendant
Anderson takes no position on this issue. Nevertheless,
Defendants collectively do not oppose entry of a preliminary
injunction, but also ask that the injunction, as well as further
proceedings in this matter, be stayed. Relying primarily on the
Kitchen decision, Plaintiffs argue they have established the
requisite elements for the issuance of a preliminary injunction
against Defendants. Based on its independent analysis, the
Court agrees.
Before a preliminary injunction may be issued, the moving
party must establish: (1) a substantial likelihood of success
on the merits; (2) irreparable injury will result if the
injunction does not issue; (3) the threatened injury to the
movant outweighs any damage the injunction may cause the
opposing party; and (4) issuance of the injunction would
not be adverse to the public interest. Northern Natural
Gas Co. v. L.D. Drilling, Inc., 697 F.3d 1259, 1266 (10th
Cir. 2012) (internal quotation marks omitted). Generally,
where the three latter factors weigh in favor of the movant,
the probability of success factor is relaxed. Id. (internal
alterations and quotation marks omitted). That is not the
case, however, where the requested injunction is one of three
disfavored types of preliminary injunctions, i.e., those that
alter the status quo, mandatory preliminary injunctions, and
those granting the moving party all the relief it could achieve
at trial. See id.; Flood v. ClearOne Commc'ns, Inc., 618 F.3d
1110, 1117 n.1 (10th Cir. 2010). With disfavored injunctions,
the movant must satisfy a heightened standard and make a
strong showing as to the likelihood of success on the merits
and that the balance of harm favors issuing the requested
injunction. See Northern Natural Gas Co., 697 F.3d at 1266;
ClearOne Commc'ns, Inc., 618 F.3d at 1117 n.1.
*2 In this case, Plaintiffs rely on the traditional four
requirements for granting injunctive relief. Although the
Court finds Plaintiffs seek a disfavored injunction and,
therefore, a heightened standard applies, it nonetheless
concludes such standard is satisfied. First, Plaintiffs have
made a strong showing of a substantial likelihood of success
on the merits of their claims. In Kitchen, the Tenth Circuit
held that Utah's same-sex marriage bans do not withstand
constitutional scrutiny as under the Due Process and Equal
Protection Clauses of the United States Constitution, those
who wish to marry a person of the same sex are entitled
to exercise the same fundamental right as is recognized for
persons who wish to marry a person of the opposite sex.
Kitchen, 2014 WL 2868044, at *32. Subsequently, the Tenth
Circuit decided Bishop v. Smith, Nos. 145003 & 145006,
F.3d , 2014 WL 3537847 (10th Cir. July 18, 2014),
which reaffirmed that [s]tate bans on the licensing of same-
sex marriage significantly burden the fundamental right to
marry. Id. at *6. The Court agrees with the analysis in
Kitchen and Bishop that marriage is a fundamental right and
that the Challenged Laws impermissibly infringe upon that
right. The Court therefore concludes that Plaintiffs will likely
succeed in establishing that Colorado's ban impermissibly
violates Plaintiffs' constitutional rights. Accordingly, this
factor favors granting an injunction.
Next, Plaintiffs have also shown that substantial irreparable
injury will result if the injunction does not issue. Where
the harm is great or substantial, the deprivation of
constitutional rights, for even minimal periods of time,
constitutes irreparable harm. See Hobby Lobby Stores,
Inc. v. Sebelius, 723 F.3d 1114, 1146 (10th Cir. 2013)
(establishing a likely [Religious Freedom Restoration Act]
violation satisfies the irreparable harm factor), aff'd on
other grounds, 573 U.S. , 2014 WL 2921709 (2014);
Heideman v. South Salt Lake City, 348 F.3d 1182, 1190
(10th Cir. 2003) ([T]he loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes
irreparable injury. (quoting Elrod v. Burns, 427 U.S. 347,
373 (1976)); 11A Charles Alan Wright et al., Federal
Practice & Procedure 2948.1 (3d ed. 2014) (where
alleged deprivation of constitutional right is involved, most
courts hold that no further showing of irreparable injury
is necessary). Here, Plaintiffs' establishment of a violation
of their constitutional rightstheir fundamental right to
marry and to have their marriages recognizedsatisfies the
irreparable harm factor.
1
See Hobby Lobby, 723 F.3d at
1146.
1
Plaintiffs also rely on financial injury, e.g., money
to address estate planning issues that would not have
been required if they were considered married, but
such economic loss, without more, does not constitute
irreparable harm. See Heideman, 348 F.3d at 1189.
Third, the threatened injury to Plaintiffs by the enforcement
of Colorado laws which are unconstitutional outweighs any
damage the injunction may cause to Defendants. Due to
Defendants' non-opposition to the granting of an injunction,
they did not address in that context how this or any other
factor favored them. Nonetheless, in arguing for a stay of
the injunction, Defendants contend that enjoining a state
law as unconstitutional creates irreparable injury. But here,
the Court is enjoining state laws without opposition from
Defendants, which laws the Court has further found to be
clearly unconstitutional. Thus, the equities tip strongly in
favor of Plaintiffs.
Finally, the issuance of the injunction would not be adverse
to the public interest as it is always in the public interest
to prevent the violation of a party's constitutional rights.
Hobby Lobby, 723 F.3d at 1147 (quoting Awad v. Ziriax, 670
F.3d 1111, 1132 (10th Cir. 2012)). Accordingly, this factor
also favors Plaintiffs.
In summary, even under the heightened standard, Plaintiffs
have shown that all the preliminary injunction factors tip in
their favor and that an injunction should be entered.
II. DEFENDANTS' MOTION TO STAY
Defendants' Motion to Stay raises the issue of whether this
Court should stay not only this Order, but also this entire
proceeding and await a determination of whether this case
may be affectednot by an appeal of this Order in this case
but by an appeal of another order in another case, i.e., the
Kitchen case. This issue is far from simple.
*3 A stay is not a matter of right, but rather an exercise
of judicial discretion, the propriety of which is dependent
upon the circumstances of the particular case. See Nken v.
Holder, 556 U.S. 418, 433 (2009). The party requesting the
stay of an injunction bears the burden of showing that the
circumstances justify the exercise of that discretion. Id. at
433434. The Tenth Circuit, indeed the Supreme Court as
well, has directed courts to apply certain accepted standards
in deciding whether to issue a stay. See Planned Parenthood
of Greater Texas Surgical Health Servs. v. Abbott, 134 S.Ct.
506, 506, 187 L.Ed.2d 465 (2013); FTC v. Mainstream Mktg.
Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003). Those factors
are: (1) the likelihood of success on the merits; (2) the threat
of irreparable harm if the stay is not granted; (3) the absence
of harm to opposing parties if the stay is granted; and (4) the
risk of harm to the public interest. See Planned Parenthood,
134 S.Ct. at 506; FTC, 345 F.3d at 852. The first two factors
are the most critical. Planned Parenthood, 134 S.Ct. at 506
(internal quotation marks omitted).
In this case, in terms of a stay of the preliminary injunction,
Defendants have not met their burden. As previously
discussed, on the state of the record currently before the
Court, it is Plaintiffs who have shown a likelihood of
success on the merits; it is Plaintiffs who suffer irreparable
harm if Colorado's unconstitutional same-sex marriage ban
is not enjoined; and it is Plaintiffs to whom the balance
of harm and the public interest favor. Additionally, in
light of Defendants' express non-opposition to the entry of
the injunction, Defendants cannot reasonably contend that
this Court abused its discretion in granting the preliminary
injunction and, concomitantly, no stay. See Aid for Women
v. Foulston, 441 F.3d 1101, 1115 (10th Cir. 2006) (appellate
court reviews grant of preliminary injunction for abuse of
discretion).
2
2
As to Defendants Governor and Anderson, it is unclear
whether any argument by them that such factors are
satisfied would withstand inquiry where Defendant
Governor has affirmatively stated that Kitchen was
correctly decided and Defendant Anderson took no
position on the merits of the underlying legal issue in this
case.
For these reasons, the posture of this case differs from
many other cases being litigated in the federal court system
where stays have issued. While the Court acknowledges
that Defendants may file a protective appeal in this
matter, Defendants cannot meet the burden required for a
stay pending such appeal under the applicable standard.
Defendants have elected to adopt a practical approach before
this Court in recognizing the significance of Kitchen, but
one consequence of that approach and the non-opposition
to the requested injunction is that Defendants have not met
their burden with respect to a stay pending appeal under
the traditional rules. The factors used to assess whether an
injunction should enter are largely the same as those used to
determine whether a stay should enter. Having elected largely
to stand silent with respect to such factors in the context
of the injunction, Defendants have not put before this Court
sufficient support for the factors determining entitlement to
a stay of the injunction. Rather than take issue with this,
Defendant Attorney General argues that:
with same sex-marriage litigation, federal courts have
largely skipped a methodical assessment of those four
factors in favor of entering a stay due to the unsettled
nature of the constitutional questions regarding same-sex
marriage and the confusion, potential inequity, and high
costs that would likely result if the decision granting
injunctive relief were reversed on appeal.
(Attorney General's Reply, ECF No. 41, pages 67.)
*4 The Court agrees that in same-sex marriage cases the
federal courts appear to have often put aside the accepted
standards they have been repeatedly directed to apply or, as
the case may be, directed the lower federal courts to apply.
The Court concludes, however, that the basis on which this is
being done is much simpler than the nuanced considerations
being proffered by Defendant Attorney General. It is being
done largely because federal courts have interpreted Supreme
Court actions as implied directives to issue stays in these
matters. As the concurrence in the Ninth Circuit's Order
granting a stay stated:
On January 6, 2014, the Supreme
Court granted the State's application
for a stay pending the disposition
of the appeal in the Tenth Circuit.
Herbert v. Kitchen, 134 S.Ct. 893
(2014). Although the Supreme Court's
terse two-sentence order did not offer a
statement of reasons, I cannot identify
any relevant differences between the
situation before us today and Herbert.
And, although the Supreme Court's
order in Herbert is not in the strictest
sense precedential, it provides a clear
messagethe Court (without noted
dissent) decided that district court
injunctions against the application
of laws forbidding same-sex unions
should be stayed at the request of state
authorities pending court of appeals
review.
Latta v. Otter, No. 1435420, Order, at 3 (9th Cir. May 20,
2014) (Hurwitz, J., concurring). See also DeBoer v. Snyder,
No. 141341, Order, at 1 (6th Cir. March 25, 2014) (In
light of the Supreme Court's issuance of a stay in a similar
case, Herbert v. Kitchen, 134 S.Ct. 893 (2014), a stay of the
district court's order is warranted.); Bostic v. Rainey, 970
F.Supp.2d 456, 484 (E.D.Va.2014) (same); DeLeon v. Perry,
975 F.Supp.2d 632, 666 (W.D.Tex.2014) (same).
Plaintiffs challenge the notion of any directive from the
Supreme Court by noting instances in which requests to the
Supreme Court for stays have been denied. In that regard,
Plaintiffs rely on National Organization for Marriage v.
Geiger, 134 S.Ct. 2722 (U.S. June 4, 2014) and Gaffney
v. Whitewood, No. 143048 (U.S. July 7, 2014). Plaintiffs'
reliance, however, is misplaced because in each case, the
applicant requesting the stay was a proposed intervenor who
sought to appeal the district court's order declaring the state's
same-sex marriage laws as unconstitutional. In short, they
were outsiders to the litigation.
There is at least one aspect of this case which differs from
other same-sex marriage cases being litigated elsewhere in the
federal system which has not been emphasized by the parties.
Here, the applicable appellate court has already spoken
more than once. Kitchen, supra ; Bishop v. Smith, supra.
Thus, it is conceivable that any perceived directive from the
Supreme Court to let appellate courts consider this issue does
not apply here.
The Court has given strong consideration to this difference.
The proverbial wild card in the analysis is the recent stay
entered by the Supreme Court in Herbert v. Evans, No.
14A65, 2014 WL 3557112 (U.S. July 18, 2014). Evans
involved a preliminary injunction issued by the district court
to require Utah to recognize same-sex marriages resulting
from licenses issued in the gap between the time that an
injunction issued in Kitchen and the Supreme Court issued
a stay. The Evans defendants requested a stay which the
Tenth Circuit denied after analyzing the request under the
accepted standards and concluding that defendants failed
to meet their burden of showing a stay should be issued.
Evans v. State of Utah, No. 144060 (10th Cir. July 11,
2014). Notwithstanding this denial, and the fact that the Tenth
Circuit has already spoken in Kitchen, on July 18, 2014, the
Supreme Court still issued a stay pending final disposition of
the appeal by the United States Court of Appeals for the Tenth
Circuit. Herbert v. Evans, No. 14A65, 2014 WL 3557112
(July 18, 2014). But, making extraction of the meaning of the
stay in Evans more difficult, Evans is a companion case to
Kitchen, both addressing the application of Utah's same-sex
marriage laws.
*5 Based on the most recent stay, it appears to the Court that
it may well be that a message is being sent by the Supreme
Court. But this Court is not some modern day haruspex
skilled in the art of divination. This Court cannotand, more
importantly, it will nottell the people of Colorado that the
access to this or any other fundamental right will be delayed
because it thinks or perceives the subtleor not so subtle
content of a message not directed to this case. The rule of
law demands more.
The rules which this Court is to apply in deciding this matter
are set forth in Rule 62, Fed.R.Civ.P., and the standards
described earlier. As already explained above, Defendants are
not entitled to a stay order under the applicable rules. This is
where this Court's analysis must end.
The Court recognizes that the Tenth Circuit or the Supreme
Court may choose to issue a stay in this matter. And this
Court will not foreclose Defendants from having a fair
opportunity to seek such stay. Accordingly, as it pertains to
the preliminary injunction, this Court will temporarily stay
the preliminary injunction order until 8:00 a.m. on August
25, 2014, to permit Defendants time to seek a stay of the
injunction from a higher court.
As to a stay of further proceedings, apart from the preliminary
injunction, the Court exercises its discretion to stay such
proceedings in this matter. See Ryan v. Gonzales, 133 S.Ct.
696, 707708, 183 L.Ed.2d 528 (2013); United Steelworkers
of America v. Oregon Steel Mills, Inc., 322 F.3d 1222, 1227
(10th Cir. 2003). Kitchen will ultimately decide this matter
by the denial of certiorari and issuance of the mandate
from the Tenth Circuit or by Supreme Court ruling. Indeed,
Defendant Attorney General orally conceded at the July 22,
2014 hearing that if the Kitchen decision is upheld or becomes
final, the Challenged Laws are unconstitutional. And a final
merits determination here based on Kitchen will only trail
Kitchen in the appellate courts. Little would thus be served
by requiring the parties to incur the costs and expenses
of litigating to final proceedings in this case while trailing
Kitchen.
3
3
Defendant Attorney General has suggested that this
Court defer to earlier state litigation under the Colorado
River doctrine. Colorado River Water Conservation Dist.
v. United States, 424 U.S. 800 (1976). This Court
declines to abstain from deciding, and thus to defer to the
state, matters of federal constitutional law.
III. CONCLUSION
Based on the foregoing, it is
ORDERED that Plaintiffs' Motion for Preliminary Injunction
(ECF No. 8) is GRANTED and Defendants are hereby
ENJOINED from enforcing or applying Article II, Section
31 of the Colorado Constitution and C.R.S. 142104(1)
(b) and 142104(2) as a basis to deny marriage to same-sex
couples or to deny recognition of otherwise valid same-sex
marriages entered in other states; and
FURTHER ORDERED that Defendants' Motion to Stay
Proceedings and NonOpposition to Proposed Preliminary
Injunction (ECF No. 16) is DENIED as to their request to stay
the preliminary injunction but GRANTED as to a stay of all
other proceedings in this case until three (3) days after the
final mandate is issued in Kitchen v. Herbert, No. 134178,
F.3d , 2014 WL 2868044 (10th Cir. June 25, 2014),
or further order of this Court; and
FURTHER ORDERED that the preliminary injunction is
TEMPORARILY STAYED until 8:00 a.m. on Monday,
August 25, 2014, to allow Defendants time to seek relief from
the United States Court of Appeals for the Tenth Circuit or
the Supreme Court.
Evans v. Utah, --- F.Supp.2d ---- (2014)
2014 WL 2048343
D. Utah,
Central Division.
Jonell EVANS, Stacia Ireland, Marina Gomberg,
Elenor Heyborne, Matthew Barraza, Tony Milner,
Donald Johnson, and Karl Fritz Shultz, Plaintiffs,
v.
State of UTAH, Governor Gary Herbert,
Attorney General Sean Reyes, Defendants.
Case No. 2:14CV55DAK. | Signed May 19, 2014.
Synopsis
Background: Same-sex couples legally married in Utah
following preliminary injunction barring enforcement of
statutory and constitutional bans on same-sex marriages, but
before entry of stay of injunction, brought action against State
of Utah, alleging Utah's refusal to recognize their marriages
pending appeal of decision on bans violated their due process
rights. Couples moved for preliminary injunction requiring
Utah to continue to recognize their marriages.
Holdings: The District Court, Dale A. Kimball, J., held that:
[1] couples' request was for a prohibitory injunction, not a
disfavored mandatory injunction;
[2] couples demonstrated a clear and unequivocal likelihood
of success on the merits;
[3] Utah's statutory and constitutional bans on same-sex
marriages did not apply retroactively;
[4] couples demonstrated they would suffer irreparable harm
in absence of preliminary injunction; and
[5] State was not entitled to stay pending appeal.
Motion granted.
Erik Strindberg, Kathryn K. Harstad, Lauren I. Scholnick,
Rachel E. Otto, Strindberg & Scholnick LLC, John M. Mejia,
Leah M. Farrell, ACLU of Utah, Salt Lake City, UT, Joshua
A. Block, American Civil Liberties Union Foundation, New
York, NY, for Plaintiffs.
Kyle J. Kaiser, Utah Attorney General, Joni J. Jones, Parker
Douglas, Salt Lake City, UT, for Defendants.
Opinion
MEMORANDUM DECISION AND ORDER
DALE A. KIMBALL, District Judge.
*1 This matter is before the court on Plaintiffs JoNell
Evans, Stacia Ireland, Marina Gomberg, Elenor Heyborne,
Matthew Barraza, Tony Milner, Donald Johnson, and Karl
Fritz Shultz's Motion for Preliminary Injunction, Plaintiffs'
Motion to Certify Questions of Utah State Law to the Utah
Supreme Court, and Defendants State of Utah, Governor Gary
Herbert, and Attorney General Sean Reyes' (collectively, the
State) Motion to Certify Questions of Utah State Law to the
Utah Supreme Court. The court held a hearing on Plaintiffs'
Motions on March 12, 2014.
1
At the hearing, Plaintiffs were
represented by Erik Strindberg, Joshua A. Block, and John
Mejia, and the State was represented by Joni J. Jones, Kyle
J. Kaiser, and Parker Douglas. After carefully considering
the parties' arguments, as well as the law and facts relevant
to the motions, the court enters the following Memorandum
Decision and Order.
FACTUAL BACKGROUND
The present lawsuit is brought by four same-sex couples
who were married in Utah between December 20, 2013,
and January 6, 2014. Plaintiffs allege deprivations of their
property and liberty interests under Utah and federal law
resulting from the State of Utah's failure to recognize their
marriages.
A. Kitchen v. Herbert Case
On December 20, 2013, United States District Judge
Robert J. Shelby issued a ruling in Kitchen v. Herbert,
2:13cv217RJS, 2013 WL 6834634 (D.Utah Dec. 23, 2013),
enjoining the State of Utah from enforcing its statutory
and constitutional bans on same-sex marriages (collectively,
marriage bans).
2
The State did not request a stay of the
ruling in the event that it lost, and the court's decision did not
sua sponte stay the ruling pending appeal. After learning of
the adverse ruling, the State then requested a stay from the
district court, which Judge Shelby denied on December 23,
2013. The Tenth Circuit denied the State's subsequent request
for a stay on December 24, 2013. The State moved for a stay
with the United States Supreme Court on December 31, 2013,
and the Supreme Court granted a stay on January 6, 2014
(Stay Order).
B. State's Response to Kitchen Decision
After the Kitchen decision was issued on December 20, 2013,
some county clerks began issuing marriage licenses to same-
sex couples that same day. On December 24, 2013, Governor
Herbert's office sent an email to his cabinet, stating: Where
no conflicting laws exist you should conduct business in
compliance with the federal judge's ruling until such time that
the current district court decision is addressed by the 10th
Circuit Court. Also on that day, a spokesperson for the Utah
Attorney General's Office publicly stated that county clerks
who did not issue licenses could be held in contempt of court.
Between December 20, 2013 and January 6, 2014, the State
of Utah issued marriage licenses to over 1,300 same-sex
couples. While it is not known how many of those couples
granted licenses solemnized their marriages before January 6,
2014, news reports put the number at over 1,000.
*2 The United States Supreme Court's January 6, 2014 Stay
Order did not address the legal status of the marriages entered
into by same-sex couples in Utah between December 20,
2013, and January 6, 2014, as a result of the Kitchen decision.
The Supreme Court's Stay Order stated:
The application for stay presented to
Justice Sotomayor and by her referred
to the Court is granted. The permanent
injunction issued by the United States
District Court for the District of Utah,
case no. 2:13cv217, on December
20, 2013, is stayed pending final
disposition of the appeal by the United
States Court of Appeals for the Tenth
Circuit.
Also on January 6, 2014, after the Supreme Court's Stay
Order, Utah Attorney General Sean Reyes issued the
following statement: Utah's Office of Attorney General is
carefully evaluating the legal status of the marriages that were
performed since the District Court's decision and will not rush
to a decision that impacts Utah citizens so personally.
Two days later, Governor Herbert's chief of staff sent an
email to the Governor's cabinet informing them of the
Supreme Court's stay and stating that [b]ased on counsel
from the Attorney General's Office regarding the Supreme
Court decision, state recognition of same-sex marital status
is ON HOLD until further notice. The email stated that
the cabinet members should understand this position is not
intended to comment on the legal status of those same-
sex marriagesthat is for the courts to decide. The intent
of this communication is to direct state agency compliance
with current laws that prohibit the state from recognizing
same-sex marriages. Furthermore, the email instructed
that [w]herever individuals are in the process of availing
themselves of state services related to same-sex martial status,
that process is on hold and will stay exactly in that position
until a final court decision is issued.
The next day, Attorney General Reyes issued a letter
to county attorneys and county clerks to provide legal
clarification about whether or not to mail or otherwise provide
marriage certificates to persons of the same sex whose
marriage ceremonies took place between December 20, 2013,
and January 6, 2014, prior to the issuance of the stay by the
U.S. Supreme Court. Attorney General Reyes continued that
although the State of Utah cannot currently legally recognize
marriages other than those between a man and a woman,
marriages between persons of the same sex were recognized
in the State of Utah between the dates of December 20, 2013
until the stay on January 6, 2014. Based on our analysis
of Utah law, the marriages were recognized at the time
the ceremony was completed. He explained that the act
of completing and providing a marriage certificate for all
couples whose marriage was performed prior to the morning
of January 6, 2014, is administrative and consistent with Utah
law and would allow, for instance, same-sex couples who
solemnized their marriage prior to the stay to have proper
documentation in states that recognize same-sex marriage.
*3 Furthermore, Attorney General Reyes stated that the
State of Utah would not challenge the validity of those
marriages for the purposes of recognition by the federal
government or other states. But, the validity of the marriages
in question must ultimately be decided by the legal appeals
process presently working its way through the courts.
On January 15, 2014, the Utah State Tax Commission issued
a notice stating that same-sex couples may file a joint return
if they [were] married as of the close of the tax year for 2013
because [a]s of December 31, 2013, the Supreme Court had
not yet issued its stay of the District Court's injunction. The
notice further stated: This notice is limited to the 2013 tax
year. Filing information for future years will be provided as
court rulings and other information become available.
C. Plaintiffs' Responses to Kitchen Decision
Plaintiffs Marina Gomberg and Elenor Heyborne obtained
their marriage license and solemnized their marriage on
December 20, 2013. They had been in a relationship for nine
years and had previously performed a commitment ceremony
in May 2009, even though the State of Utah did not recognize
the union. They have been contemplating having a baby but
are worried about protecting their family because the State
of Utah will only allow one of them to be a legal parent to
any children that they raise together. Gomberg and Heyborne
do not want to move to another state to have their marriage
recognized.
Plaintiffs Matthew Barraza and Tony Milner also obtained
their marriage license and solemnized their marriage on
December 20, 2013. They had been in a committed
relationship for nearly 11 years. In 2010, Barraza and Milner
traveled to Washington, D.C., and got married. However,
Utah law prevented any recognition of their marriage in Utah.
In 2009, Barraza adopted a son, J., who is now four years old.
Under Utah law, Milner was not allowed to be an adoptive
parent to J. even though he and Barraza are jointly raising J.
On December 26, 2013, Barraza and Milner initiated court
proceedings for Milner to adopt their son. The court
scheduled a hearing date for January 10, 2014. On January
9, 2014, the court informed them that the court had decided
to stay the adoption proceedings to consider whether the
Utah Attorney General's Office should be notified of the
proceedings and allowed to intervene. The court held a
hearing on January 29, 2014, and ruled that the Attorney
General's Office should be given notice. The Attorney
General's Office declined to intervene but filed a brief stating
that the court should stay the proceedings until the Tenth
Circuit decided the appeal in Kitchen. On March 26, 2014, the
state court judge, the Honorable Andrew H. Stone, rejected
the Attorney General's arguments and ordered that Milner
should be allowed to adopt J.
On April 1, 2014, Milner and Barraza's attorney went to
the Utah Department of Health, Office of Vital Records, to
obtain a new birth certificate for J. based on Judge Stone's
Decree of Adoption. Although he presented a court-certified
decree of adoption and report of adoption, which are the only
records needed under Utah law and regulation to create a new
birth certificate based on adoption, the registrar refused to
issue a new birth certificate. The registrar asked for a copy
of Barraza and Milner's marriage certificate, even though a
marriage certificate is not usually required, and contacted the
Utah Attorney General's Office. Two attorneys from the Utah
Attorney General's Office instructed the registrar not to issue
the amended birth certificate for J.
*4 On April 7, 2014, the Utah Department of Health
served Milner and Barraza with a Petition for Emergency
Extraordinary Relief, which it had filed in the Utah Supreme
Court. In that Petition, the Department of Health requests a
court order relieving it from recognizing Judge Stone's decree
of adoption because it recognizes Milner and Barraza's same-
sex marriage. On May 7, 2014, Judge Stone issued an order
for the Attorney General and other state officials to show
cause why they should not be held in contempt for refusing
to comply with the court's order to issue an amended birth
certificate. On May 16, 2014, the Utah Supreme Court issued
an order staying enforcement of the state court orders and
stating that a briefing schedule on the writ would be set.
Plaintiffs JoNell Evans and Stacia Ireland also obtained a
marriage license and solemnized their marriage on December
20, 2013. Evans and Ireland had been in a relationship for 13
years. In 2007, they had a religious marriage ceremony at the
Unitarian Church in Salt Lake City, but the marriage was not
recognized by the State of Utah.
Evans and Ireland have tried to obtain rights through the use
of medical powers of attorney because Ireland has had serious
health issues recently. In 2010, Ireland suffered a heart attack.
With the power of attorney, Evans was allowed to stay with
Ireland during her treatment but did not feel as though she was
given the same rights as a spouse. On January 1, 2014, Evans
again had to rush Ireland to the hospital emergency room
because Ireland was experiencing severe chest pains. Unlike
her previous experience, Evans was afforded all courtesies
and rights given to the married spouse of a patient. Now that
the State no longer recognizes their marriage, Evans does
not know how she will be treated if there is another medical
situation.
Plaintiffs Donald Johnson and Karl Fritz Shultz got their
marriage license and solemnized their marriage on December
23, 2013, after waiting in line for approximately eight hours.
Johnson and Shultz have been in a relationship for over
21 years. Johnson first proposed to Shultz the Sunday after
Thanksgiving in 1992, and the couple had continued to
celebrate that day as their anniversary. Johnson researched
insurance coverage for himself and Shultz and discovered
that they could save approximately $8,000.00 each year on
health insurance. They will lose that savings without state
recognition of their marriage.
LEGAL ANALYSIS
Plaintiffs' Motion for Preliminary Injunction
Plaintiffs seek a preliminary injunction requiring the State
to continue recognizing the marriages Plaintiffs entered into
pursuant to valid Utah marriage licenses between December
20, 2013, and January 6, 2014. The State continues to
recognize Plaintiffs' marriages for purposes of joint state
tax filings for 2013 and already-issued state documents
with marriage-related name changes. However, for all other
purposes, the State is applying its marriage bans retroactively
to Plaintiffs' marriages. Plaintiffs seek an injunction requiring
the State to continue recognizing their marriages as having
all the protections and responsibilities given to all married
couples under Utah law.
I. Preliminary Injunction Standard
*5 [1] [2] Preliminary injunctive relief is appropriate if
the moving party establishes: (1) a likelihood of success
on the merits; (2) a likelihood that the movant will suffer
irreparable harm in the absence of preliminary relief; (3) that
the balance of equities tips in the movant's favor; and (4) that
the injunction is in the public interest. RoDa Drilling Co.
v. Siegal, 552 F.3d 1203, 1208 (10th Cir.2009). Because a
preliminary injunction is an extraordinary remedy, the right
to relief must be clear and unequivocal. SCFC ILC, Inc. v.
Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991).
[3] In the Tenth Circuit, certain types of injunctions
are disfavored: (1) preliminary injunctions that alter the
status quo; (2) mandatory preliminary injunctions; and (3)
preliminary injunctions that afford the movant to all the
relief that it could recover at the conclusion of a full trial
on the merits. Schrier v. University of Colo., 427 F.3d
1253, 1259 (10th Cir.2005) (quoting O Centro Espirita
Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973,
977 (10th Cir.2004)). Such disfavored injunctions must be
more closely scrutinized to assure that the exigencies of that
case support the granting of a remedy that is extraordinary
even in the normal course. Id. Movants seeking such an
injunction are not entitled to rely on this Circuit's modified-
likelihood-of-success-on-the-merits standard. O Centro, 389
F.3d at 976. The moving party must make a strong showing
both with regard to the likelihood of success on the merits
and with regard to the balance of harms. Awad v. Ziriax, 670
F.3d 1111, 1125 (10th Cir.2012).
[4] The status quo for purposes of a preliminary injunction
is the last peaceable uncontested status existing between
the parties before the dispute developed. Schrier, 427 F.3d
at 1260. In this case, the last peaceable uncontested status
between the parties was when the State recognized Plaintiffs'
marriages. Therefore, the requested preliminary injunction
does not disturb the status quo.
[5] However, the State argues that Plaintiffs' requested
preliminary injunction is a disfavored injunction because
it is mandatory rather than prohibitory. An injunction is
mandatory if it will affirmatively require the nonmovant
to act in a particular way, and as a result ... place[s] the
issuing court in a position where it may have to provide
ongoing supervision to assure the nonmovant is abiding by the
injunction. Id. at 1261. The Tenth Circuit has recognized that
[t]here is no doubt that determining whether an injunction
is mandatory as opposed to prohibitory can be vexing.
O Centro, 389 F.3d at 1006. In many instances, this
distinction is more semantical than substantive. For to order
a party to refrain from performing a given act is to limit
his ability to perform any alternative act; similarly, an order
to perform in a particular manner may be tantamount to a
proscription against performing in any other. Id. (citation
omitted).
*6 [6] In this case, the court could characterize Plaintiffs'
requested injunction as prohibiting the State from enforcing
its marriage bans against couples who already have vested
marriage rights or affirmatively requiring the State to
recognize Plaintiffs' vested marriage rights. In large part, it
is a matter of semantics rather than substance. Preventing the
State from applying its marriage bans retroactively is the same
thing as requiring the State to recognize marriages that were
entered into when such marriages were legal.
As to the second element of a mandatory injunction, however,
there is no evidence to suggest that this court would be
required to supervise the State if the court granted Plaintiffs'
requested injunction. The State's position is that it is required
by Utah law to apply Utah's marriage bans to all same-sex
marriages until a court decides the issue. The Directive that
went to Governor Herbert's cabinet stated that the legal
status of the same-sex marriages that took place before the
Supreme Court stay was for the courts to decide. And
Attorney General Reyes recognized that the validity of the
marriages in question must ultimately be decided by the legal
process. Based on the State's compliance with the injunction
in Kitchen prior to the Supreme Court's Stay Order, there is
no basis for assuming that the State would need supervision in
implementing an order from this court recognizing the same-
sex marriages.
Neither party raised the issue of whether this is an injunction
that would provide Plaintiffs with all the relief they could
receive from a trial on the merits. Plaintiffs seek declaratory
and injunctive relief that their marriages continue to be valid
under Utah and federal law. However, Plaintiffs have pleaded
a cause of action for the deprivation of property and liberty
interests in violation of the United States Constitution under
42 U.S.C. 1983. A determination that the State has deprived
Plaintiffs of their constitutional rights could, therefore, result
in at least nominal damages at trial.
3
The court concludes, therefore, that the requested injunction
is not a disfavored injunction which would require the clear
and unequivocal standard to apply to the likelihood of success
on the merits element. Based on this court's analysis, the
preliminary injunction does not alter the status quo, is not
mandatory, and does not afford Plaintiff all the relief that
could be awarded at trial. However, to the extent that the
requested injunction could be construed as a mandatory
injunction, the court will analyze the likelihood of success on
the merits under the clear and unequivocal standard.
II. Merits
Because the court is applying the heightened standard to
Plaintiffs' request for a preliminary injunction, the court will
address the likelihood of success on the merits first and then
each element in turn.
A. Likelihood of Success on the Merits
Plaintiffs argue that they are likely to succeed on their state
and federal claims because they became vested in the rights
attendant to their valid marriages at the time those marriages
were solemnized and the State is required, under the state
and federal due process clauses, to continue recognizing their
marriages despite the fact that Utah's same-sex marriage bans
went back into effect on January 6, 2014. In their Complaint,
Plaintiffs bring causes of action for violations of their due
process and liberty interests under the Utah and United States
Constitutions. Article I, Section 7 of the Utah Constitution
provides that [n]o person shall be deprived of life, liberty
or property, without due process of law. The Fourteenth
Amendment to the United States Constitution guarantees that
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
*7 The Utah Supreme Court has recognized that the
standards for state and federal constitutional claims are
different because they are based on different constitutional
language and different interpretive law. Jensen ex rel. Jensen
v. Cunningham, 250 P.3d 465, 477 (Utah 2011). While
the language may be similar, the Utah Supreme Court has
explained that federal standards do not foreclose [its] ability
to decide in the future that [its] state constitutional provisions
afford more rights than the federal Constitution. Id. at
478 (concluding that conduct that did not give rise to a
federal constitutional violation could still give rise to a state
constitutional violation). Recognizing that the Utah Supreme
Court has the prerogative to find that the state due process
clause affords more protections, the court will analyze the
issue under only federal due process standards.
As an initial matter, the court notes that this case is not
about whether the due process clause should allow for same-
sex marriage in Utah or whether the Kitchen decision from
this District was correct. That legal analysis is separate and
distinct from the issues before this court and is currently on
appeal to the Tenth Circuit Court of Appeals. This case deals
only with whether Utah's marriage bans preclude the State of
Utah from recognizing the same-sex marriages that already
occurred in Utah between December 20, 2013, and January
6, 2014.
Plaintiffs bring their federal violation of due process and
liberty interests claim under 42 U.S.C. 1983. While Section
1983 does not provide any substantive rights of its own, it
provides a method for vindicating federal rights elsewhere
conferred by those parts of the United States Constitution and
federal statutes that it describes. See Chapman v. Houston
Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 60
L.Ed.2d 508 (1979); Baker v. McCollan, 443 U.S. 137, 144
n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).
[7] To state a claim for a violation of due process,
plaintiff must first establish that it has a protected property
interest and, second, that defendants' actions violated that
interest. Crown Point I, LLC v. Intermountain Rural Elec.
Ass'n, 319 F.3d 1211, 1216 (10th Cir.2003). The Supreme
Court defines property in the context of the Fourteenth
Amendment's Due Process Clause as a legitimate claim
of entitlement to some benefit. Hyde Park Co. v. Santa
Fe City Council, 226 F.3d 1207, 1210 (10th Cir.2000)
(quoting Board of Regents v. Roth, 408 U.S. 564, 577,
92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). These claims of
entitlement generally arise from independent sources such as
state statutes, local ordinances, established rules, or mutually
explicit understandings. Dickeson v. Quarberg, 844 F.2d
1435, 1437 (10thCir.1988). In assessing a due process claim,
the Tenth Circuit has recognized that a liberty interest can
either inhere in the Due Process Clause or it may be created
by state law. Elwell v. Byers, 699 F.3d 1208, 1213 (10th
Cir.2012).
1. Interest Inherent in the Due Process
*8 In finding a liberty interest inherent in the Due Process
Clause, the Tenth Circuit explained that [t]here can be no
doubt that freedom of personal choice in matters of marriage
and family life is one of the liberties protected by the Due
Process Clause of the Fourteenth Amendment. Id. at 1215
(quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632,
63940, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974)). As the Court
declared in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67
L.Ed. 1042 (1923), the liberty guaranteed by the Due Process
Clause denotes not merely freedom from bodily restraint but
also the right of the individual ... to marry, establish a home
and bring up children. Id.
In Windsor, the United States Supreme Court struck down
the federal Defense of Marriage Act because it was
unconstitutional as a deprivation of the liberty of the person
protected by the Due Process Clause. Id. In prior cases, the
court has also found that the relationship of love and duty
in a recognized family unit is an interest in liberty entitled to
constitutional protection. Lehr v. Robertson, 463 U.S. 248,
258, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).
[8] In this case, Plaintiffs solemnized legally valid marriages
under Utah law as it existed at the time of such solemnization.
At that time, the State granted Plaintiffs all the substantive
due process and liberty protections of any other marriage.
The Windsor Court held that divesting married same-sex
couples of the duties and responsibilities that are an essential
part of married life violates due process. United States v.
Windsor, U.S. , 133 S.Ct. 2675, 2695, 186 L.Ed.2d
808 (2013).
As in Windsor, the State's decision to put same-sex marriages
on hold, deprive[s] some couples married under the laws
of their State, but not other couples, of both rights and
responsibilities. Id. at 2694. Similarly, the principal effect
of the State's actions is to identify a subset of state-
sanctioned marriages and make them unequal. The court,
therefore, concludes that under Tenth Circuit law, Plaintiffs
have demonstrated a liberty interest that inheres in the Due
Process Clause.
2. Interest Created by State Law
Plaintiffs have also asserted that they have a state property
interest in their valid marriages under Utah state law. The
only state court to look at an issue similar to the one before
this court is the California Supreme Court in Strauss v.
Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48
(2009). The Strauss court addressed the continuing validity
of the same-sex marriages that occurred after the California
Supreme Court decision allowing same-sex marriage under
the California Constitution and the passage of Proposition
8, which amended the California Constitution to preclude
same-sex marriages. Id., 93 Cal.Rptr.3d 591, 207 P.3d at
11922. The Strauss court began its analysis by recognizing
the presumption against finding an enactment to have
retroactive effect and examining the language of Proposition
8 to determine whether the amendment could be applied
retroactively. Id., 93 Cal.Rptr.3d 591, 207 P.3d at 120
21. The court concluded that Proposition 8 did not apply
retroactively. Id.
*9 In making its determination on retroactivity, the court
also acknowledged that its determination that Proposition
8 cannot properly be interpreted to apply retroactively
to invalidate lawful marriages of same-sex couples that
were performed prior to the adoption of Proposition 8 is
additionally supported by our recognition that a contrary
resolution of the retroactivity issue would pose a serious
potential conflict with the state constitutional due process
clause. Id., 93 Cal.Rptr.3d 591, 207 P.3d at 121.
The Strauss court explained that its past cases establish that
retroactive application of a new measure may conflict with
constitutional principles if it deprives a person of a vested
right without due process of law. Id. (citations omitted).
In determining whether a retroactive law contravenes the
due process clause, the court must consider such factors
as the significance of the state interest served by the law,
the importance of the retroactive application of the law to
the effectuation of that interest, the extent of reliance upon
the former law, the legitimacy of that reliance, the extent of
actions taken on the basis of that reliance, and the extent
to which the retroactive application of the new law would
disrupt those actions. Id.
Applying these principles to whether the same-sex marriages
entered into prior to Proposition 8 should remain valid,
the Strauss court concluded that applying Proposition 8
retroactively would create a serious conflict between the
new constitutional provision and the protections afforded by
the state due process clause. Id. at 122. The court reasoned
that the same-sex couples acquired vested property rights
as lawfully married spouses with respect to a wide range
of subjects, including, among many others, employment
benefits, interests in real property, and inheritances. Id.
Furthermore, the couples' reliance was entirely legitimate,
and retroactive application of the initiative would disrupt
thousands of actions taken in reliance on the [prior court
ruling] by these same-sex couples, their employers, their
creditors, and many others, throwing property rights into
disarray, destroying the legal interests and expectations of
thousands of couples and their families, and potentially
undermining the ability of citizens to plan their lives
according to the law as it has been determined by this state's
highest court. Id. By contrast, a retroactive application
of Proposition 8 is not essential to serve the state's current
interest (as reflected in the adoption of Proposition 8) in
preserving the traditional definition of marriage by restricting
marriage to opposite-sex couples; that interest is honored
by applying the measure prospectively and by having the
traditional definition of marriage enshrined in the state
Constitution where it can be altered only by a majority of
California voters. Id.
In this case, the State seeks to apply its marriage bans
retroactively to Plaintiff's previously-entered marriages. The
marriage bans were legal nullities at the time Plaintiffs were
married. However, once the Supreme Court entered its Stay
Order, the State asserts that the marriage bans went back into
effect.
*10 [9] Like California, Utah law has a strong presumption
against retroactive application of laws. Constitutions, as
well as statutes, should operate prospectively only unless the
words employed show a clear intention that they should have
a retroactive effect. Shupe v. Wasatch Elec. Co., 546 P.2d
896, 898 (Utah 1976). The presumption against retroactive
application of changes in the law is deeply rooted in principles
of fairness and due process. The United States Supreme
Court has explained that the presumption against retroactive
legislation ... embodies a legal doctrine centuries older than
our Republic. Landgraf v. USI Film Prods., 511 U.S. 244,
266, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The principle
that the legal effect of conduct should ordinarily be assessed
under the law that existed when the conduct took place has
timeless and universal appeal. Id.
[10] [11] Because retroactive application of a law is highly
disfavored, a court will and ought to struggle hard against
a construction which will, by retrospective operation, affect
the rights of parties. Thomas v. Color Country Mgmt., 84
P.3d 1201, 1210 (Utah 2004) (Durham, C.J., concurring).
Utah's presumption against retroactivity can be overcome
only by explicit statements that the statute should be applied
retroactively or by clear and unavoidable implication that the
statute operates on events already past. Evans & Sutherland
Computer Corp. v. Utah State Tax Comm'n, 953 P.2d 435,
437 (Utah 1997).
In this case, Utah's statutory and constitutional provisions do
not explicitly state that they apply retroactively. Utah Code
Section 3012 states that marriages between persons of the
same sex are prohibited and declared void. Utah Code
Ann. 3012(5). Utah Code Section 3014.1 provides: It
is the policy of this state to recognize as marriage only the
legal union of a man and a woman; and this state will not
recognize, enforce, or give legal effect to any law creating
any legal status, rights, benefits, or duties [to same-sex
couples] that are substantially equivalent to those provided
under Utah law to a man and a woman because they are
married. Id. 3014.1(1)(a), (b). Article I, Section 29 to
the Utah Constitution provides: (1) Marriage consists only
of the legal union between a man and a woman. (2) No other
domestic union, however denominated, may be recognized as
a marriage or given the same or substantially equivalent legal
effect.
The use of the present tense in these same-sex marriage
bans indicates that the bans do not apply retroactively. In
Waddoups v. Noorda, 2013 UT 64, 321 P.3d 1108, the Utah
Supreme Court stated: It simply cannot be said that the use
of the present tense communicates a clear and unavoidable
implication that the statute operates on events already past.
If anything, use of the present tense implies an intent that
the statute apply to the present, as of its effective date, and
continuing forward. Id. at 7.
*11 The Waddoups court's analysis is consistent with the
Strauss court's conclusion that Proposition 8's use of the
present tense did not retroactively apply to prior marriages
because a measure written in the present tense (is valid or
recognized) does not clearly demonstrate that the measure
is intended to apply retroactively. Strauss, 93 Cal.Rptr.3d
591, 207 P.3d at 120. The Waddoups' decision is further
consistent with other courts concluding that statutes stating
that a marriage is prohibited and void does not apply
retroactively. See Cook v. Cook, 209 Ariz. 487, 104 P.3d
857, 865 n. 2 (Ariz.Ct.App.2005) (finding [m]arriage ...
between first cousins is prohibited and void does not
apply retroactively); Succession of Yoist, 132 La. 309, 61
So. 384, 385 (1913) (statute declaring, Marriages between
white persons and persons of color are prohibited, and
the celebration of such marriages is forbidden, and such
celebration carries with it no effect, and is mull and void,
does not apply retroactively).
[12] Thus, the use of present and future tenses in Utah's
marriage bans does not provide a clear and unavoidable
implication that they operate on events already past.
Waddoups, 2013 UT at 7. The court concludes that,
under Utah law, nothing in the language of Utah's marriage
bans indicates or implies that the bans should or can apply
retroactively.
Moreover, nothing in the United States Supreme Court's Stay
Order speaks to the legal status of the marriages that had
already taken place or whether Utah's marriage bans would
have retroactive effect when they were put back in place.
While the State asserts that the Stay Order placed the marriage
bans back into effect as of December 20, 2013, the State
cites to no language in the Stay Order that would support that
assertion. In addition, the State has not presented any case law
indicating that a Stay Order has that effect.
The State argues that application of Utah's previously existing
marriage bans after the Supreme Court's Stay Order is not
retroactive application of the bans because the laws were
enacted long before Plaintiffs entered into their marriages.
However, this argument completely ignores the change in the
law that occurred. The marriage bans became legal nullities
when the Kitchen decision was issued and were not reinstated
until the Stay Order. In addition, the State's argument fails
to recognize that Utah law defines a retroactive application
of a law as an application that takes away or impairs
vested rights acquired under existing laws ... in respect to
transactions or considerations already past. Payne By and
Through Payne v. Myers, 743 P.2d 186, 190 (Utah 1987).
Under this definition, the State's application of the marriage
bans to place Plaintiffs' marriages on hold, necessarily
takes away or impairs vested rights acquired under existing
law.
When discussing the due process concerns implicated in a
retroactive application of Proposition 8, the Strauss court had
clear California precedents to rely upon that identified the
state's recognition of vested rights in marriage. 93 Cal.Rptr.3d
591, 207 P.3d at 121. In this case, however, the State disputes
whether Plaintiffs have vested rights in their marriages under
Utah law.
*12 [13] Under Utah law, a marriage becomes valid on the
date of solemnization. See Walters v. Walters, 812 P.2d 64, 68
(Utah Ct.App.1991); State v. Giles, 966 P.2d 872, 877 (Utah
Ct.App.1998) (marriage valid from date of solemnization,
even if officiant does not return certificate to county clerk).
There is no dispute in this case that Plaintiffs' marriages
were valid under the law as it existed at the time they were
solemnized. In Miller v. USAA Cas. Ins. Co., 44 P.3d 663, 674
(Utah 2002), the Utah Supreme Court recognized that the due
process protection in the Utah Constitution is not confined
to mere tangible property but extends to every species of
vested rights. And, as early as 1892, the Utah Supreme
Court recognized the fundamental vested rights associated
with marriage. Tufts v. Tufts, 8 Utah 142, 30 P. 309, 310
(1892).
In Tufts v. Tufts, the court addressed the retroactive
application of divorce laws and stated that the rights and
liabilities of spouses grew out of a contract governing the
marriage relation which existed at the time the alleged
conduct occurred. Id. The court relied on precedent stating
that [w]hen a right has arisen upon a contract, or a transaction
in the nature of a contract, authorized by statute, and has
been so far perfected that nothing remains to be done by the
party asserting it, the repeal of the statute does not affect
it, or any action for its enforcement. It has then become a
vested right, which stands independent of the statute. Id. The
court also stated that the rights and liabilities of spouses are
sacred and, while the relation is based upon contract, it
is a contract that differs from all others, and is the basis of
civilized society. Id. at 31011.
In this case, Plaintiffs' marriages were authorized by law at the
time they occurred. The marriages were solemnized and valid
under the existing law so that nothing remained to be done.
No separate step can or must be taken after solemnization for
the rights of a marriage to vest. Moreover, Plaintiffs began to
exercise the rights associated with such valid marriages prior
to the entry of the Supreme Court's Stay Order. As in Tufts,
therefore, the change in the law does not affect the vested
rights associated with those marriages. The vested rights
in Plaintiffs' validly-entered marriages stand independent of
the change in the law. For over a hundred years, the Tufts
decision has never been called into question because it states
a fundamental principle of basic fairness.
This application of Utah law is consistent with the Strauss
court's recognition that the same-sex couples who married
after the [court's] decision in the Marriage Cases ... and before
Proposition 8 was adopted, acquired vested property rights
as lawfully married spouses with respect to a wide range
of subjects, including, among many others, employment
benefits, interests in real property, and inheritances. 93
Cal.Rptr.3d 591, 207 P.3d at 121. Moreover, the State
has failed to cite any law from any jurisdiction supporting
the proposition that rights in a valid marriage do not vest
immediately upon valid solemnization of the marriage.
*13 Plainly, to deprive Plaintiffs of the vested rights in
their validly-entered marriages raises the same due process
concerns that were addressed in Strauss. The State argues that
Plaintiffs in this case do not have a property interest in their
marriages because their right to marry was based on a non-
final district court opinion instead of a decision by the state's
highest court as in Strauss. To make this argument, however,
the State cites to cases involving non-final consent decrees
that are factually distinct from a final district court judgment
and that are wholly irrelevant to the issue before this court.
[14] [15] While a factual difference exists between this
case and Strauss, the court finds no basis for legally
distinguishing between the final judgment in Kitchen and the
California Supreme Court's decision in its marriage cases.
Both decisions allowed for same-sex couples to marry legally.
[A]n appeal from a decree granting, refusing or dissolving
an injunction does not disturb its operative effects. Hovey
v. McDonald, 109 U.S. 150, 161, 3 S.Ct. 136, 27 L.Ed. 888
(1883). The general rule is that the judgment of a district
court becomes effective and enforceable as soon as it is
entered; there is no suspended effect pending appeal unless a
stay is entered. In re Copper Antitrust Litig., 436 F.3d 782,
793 (7th Cir.2006).
The State's arguments as to Plaintiffs' reliance on the final
judgment in Kitchen also ignore the fact that Plaintiffs
are claiming a vested right in their validly-entered legal
marriages. Plaintiffs are not claiming they have a vested
right in the continuation of the Kitchen injunction or
judgment. Plaintiffs contend that their rights vested upon
the solemnization of their valid marriages and that their
validly-entered marriages do not rely on the continuation or
reinstatement of the Kitchen injunction. Thus Plaintiffs seek
recognition of their marriages separate and apart from the
ultimate outcome of the Kitchen appeals.
Plaintiffs' claims, therefore, are factually and legally
distinguishable from the cases the State cites applying the
vested rights doctrine. See Axel Johnson, Inc. v. Arthur
Andersen & Co., 6 F.3d 78 (2d Cir.1993); CasianoMontanez
v. State Ins. Fund Corp., 707 F.3d 124 (1stCir.2013). In
those cases, the plaintiffs were relying on rights fixed by a
district court judgment, whereas, Plaintiffs, in this case, are
relying on the validity of their marriage licenses. The State, in
this case, issued and recognized Plaintiffs' marriage licenses,
which became valid under Utah law when the marriages
were solemnized. The State did not issue provisionally-
valid marriage licenses. Moreover, Plaintiffs' vested rights
in their legally recognized marriages are not dependent on
the ultimate outcome in Kitchen. Whether or not Kitchen
is ultimately upheld, the district court's injunction was
controlling law and Utah's marriage bans were a legal nullity
until the Supreme Court issued the Stay Order on January 6,
2014. See Howat v. State of Kansas, 258 U.S. 181, 18990, 42
S.Ct. 277, 66 L.Ed. 550 (1922) (An injunction duly issuing
out of a court ... must be obeyed ... however erroneous the
action of the court may be.).
*14 The State further argues that Plaintiffs' marriages
can be declared legal nullities if the Kitchen decision is
overturned because the law has recognized instances when
traditional marriages thought to be valid are later declared
legal nullities. However, the instances in which courts have
declared such marriages void involve mistakes of fact. In Van
Der Stappen v. Van Der Stappen, 815 P.2d 1335, 1338 (Utah
Ct.App.1991), the wife discovered that she had not completed
a previous divorce at the time of her subsequent marriage.
In the present case, the marriages were valid under the law
at the time they were solemnized and there is no alleged
mistake of fact. Therefore, the comparison is inapposite.
Cases involving marriages that were invalid at their inception
are not helpful or relevant. This case is also distinguishable
from cases where county clerks spontaneously started issuing
same-sex marriage licenses without any court order or basis
in state law. Unlike the cases before this court, those cases
were also invalid at their inception.
The more analogous case is presented in Cook v. Cook, where
the court recognized that refusing to recognize an out-of-
state marriage that had previously been recognized within the
state would violate constitutional due process guarantees. 209
Ariz. 487, 104 P.3d 857, 866 (Ariz.App.2005). In Cook, the
statutory scheme in place when the couple moved to the state
expressly allowed the marriage, but a subsequent amendment
made such a marriage void. Id. The court refused to find all
such marriages in the state on the date of the amendment void
because the couples in the state with such marriages already
had constitutionally vested rights in their marriages. Id.
[16] The State believes that all the actions taken in response
to the final judgment in Kitchen can be considered a nullity
if the decision is ultimately overturned. However, there are
several instances in which courts recognize that actions taken
in reliance on an injunction cannot be reversed. See University
of Texas v. Camenisch, 451 U.S. 390, 398, 101 S.Ct. 1830,
68 L.Ed.2d 175 (1981) (injunctions have legal effects that
will be irrevocably carried out and cannot be unwound
if the injunction is subsequently overturned on appeal); see
also Prairie Band of Potawatomi Indians v. Pierce, 253
F.3d 1234, 1247 (10th Cir.2001) (recognizing certain types
of injunctions once complied with, cannot be undone).
Moreover, a person who disobeys a district court injunction
that has not been stayed may be punished with contempt even
if the underlying injunction is subsequently reversed. Walker
v. City of Birmingham, 388 U.S. 307, 314, 87 S.Ct. 1824, 18
L.Ed.2d 1210 (1967).
The State further fails to recognize that Plaintiffs are claiming
a violation of substantive due process rights, not merely
procedural due process rights. Plaintiffs allege that they have
substantive vested rights in their marriages-such as, the right
to family integrity, the right to the custody and care of
children of that marriage-that the State cannot take away
regardless of the procedures the State uses. Once Plaintiffs
solemnized a legally valid marriage between December
20, 2013, and January 6, 2014, Plaintiffs obtained all the
substantive due process and liberty protections of any other
marriage.
*15 As stated above, the Supreme Court recently held
that divesting married same-sex couples of the duties and
responsibilities that are an essential part of married life
violates due process. United States v. Windsor, U.S. ,
133 S.Ct. 2675, 2695, 186 L.Ed.2d 808 (2013). The State's
decision to put same-sex marriages on hold, deprive[s] some
couples married under the laws of their State, but not other
couples, of both rights and responsibilities. Id. at 2694.
Prior Supreme Court cases also establish that there is
a sphere of privacy or autonomy surrounding an existing
marital relationship into which the State may not lightly
intrude. Zablocki v. Redhail, 434 U.S. 374, 397 n. 1, 98
S.Ct. 673, 54 L.Ed.2d 618 (1978) (Powell, J., concurring).
4
The State has not attempted to argue that they have
a constitutionally adequate justification for overcoming
Plaintiffs' due process and liberty interests. Lawrence v.
Texas, 539 U.S. 558, 593, 123 S.Ct. 2472, 156 L.Ed.2d
508 (2003) (Ordinarily, the Due Process Clause prohibits
States from infringing fundamental liberty interests, unless
the infringement is narrowly tailored to serve a compelling
state interest.) The State has not provided the court with
a compelling state interest for divesting Plaintiffs of the
substantive rights Plaintiffs obtained in their marriages. The
State asserts merely that Plaintiffs improperly relied on the
ruling of a United States District Court. The State's argument,
however, fails to acknowledge that the State also relied on the
Kitchen decision. The State notified its county clerks that they
were required to issue marriage licenses. The State now seems
to be claiming that while it reasonably required its county
clerks to act in response to the Kitchen decision, Plaintiffs
unreasonably acted on that same decision. However, the court
has already discussed the operative effect of a district court
injunction. That operative effect applies to all parties equally.
Even though the Supreme Court's Stay Order put Utah's
marriage bans back in place, to retroactively apply the bans
to existing marriages, the State must demonstrate some state
interest in divesting Plaintiffs of their already vested marriage
rights. The State has failed to do so. Although the State has an
interest in applying state law, that interest is only in applying
the controlling law at the time. In Strauss, the court found that
a retroactive application of Proposition 8 was not essential to
serve the state's current interest (as reflected in the adoption
of Proposition 8) in preserving the traditional definition of
marriage by restricting marriage to opposite-sex couples; that
interest is honored by applying the measure prospectively
and by having the traditional definition of marriage enshrined
in the state Constitution. 93 Cal.Rptr.3d 591, 207 P.3d at
122. In comparison, a retroactive application of the initiative
would disrupt thousands of actions taken in reliance on the
[In re ] Marriage Cases [43 Cal.4th 757, 76 Cal.Rptr.3d
683, 183 P.3d 384 (2008) ] by these same-sex couples,
their employers, their creditors, and many others, throwing
property rights into disarray, destroying the legal interests and
expectations of thousands of couples and their families, and
potentially undermining the ability of citizens to plan their
lives according to the law as it has been determined. Id.
*16 As in Strauss, this court concludes that the State has not
demonstrated a state interest that would overcome Plaintiffs'
vested marriage rights. The State's decision to retroactively
apply its marriage bans and place Plaintiffs' marriages on
hold infringes upon fundamental constitutional protections
for the marriage relationship. Therefore, Plaintiffs have
demonstrated a clear and unequivocal likelihood of success
on the merits of their deprivation of federal due process claim
under 42 U.S.C. 1983.
B. Irreparable Harm
[17] Under Tenth Circuit law, [t]he party seeking
injunctive relief must show that the injury complained of is
of such imminence that there is a clear and present need for
equitable relief to prevent irreparable harm. Heideman v. S.
Salt Lake City, 348 F.3d 1182, 1189 (10th Cir.2003). The
State argues that the court should not find irreparable harm
because, even though Plaintiffs have the option of living in
a state that would recognize their marriage, Plaintiffs have
chosen to live in Utah for years without enjoying the rights of
marriage. This argument ignores the changes in the law that
occurred and the fact that Plaintiffs' situations were materially
altered when they became validly married in the State of Utah.
[18] [19] The Tenth Circuit recognizes that [w]hen an
alleged constitutional right is involved, most courts hold that
no further showing of irreparable injury is necessary. Awad
v. Ziriax, 670 F.3d 1111, 1131 (10th Cir.2012). As stated
above, Plaintiffs have demonstrated a likelihood of success
on the merits that the State is violating their due process and
liberty interests by refusing to recognize their validly-entered
marriages. The State has placed Plaintiffs and their families
in a state of legal limbo with respect to adoptions, child
care and custody, medical decisions, employment and health
benefits, future tax implications, inheritance, and many other
property and fundamental rights associated with marriage.
These legal uncertainties and lost rights cause harm each day
that the marriage is not recognized. The court concludes that
these circumstances meet the irreparable harm standard under
Tenth Circuit precedents.
C. Balance of Harms
[20] [I]f the moving party establishes a likelihood of
success on the merits, the balance of harms normally
favors granting preliminary injunctive relief because the
public interest is not harmed by preliminarily enjoining the
enforcement of a statute that is probably unconstitutional.
ACLU of Ill. v. Alvarez, 679 F.3d 583, 58990 (7th Cir.2012);
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145
(10th Cir.2013). In this case, the laws themselves may not be
unconstitutional, but the State's retroactive application of the
marriage bans likely violates Plaintiffs' constitutional rights.
The State has no legitimate interest in depriving Plaintiffs of
their constitutional rights.
Although the State has a general interest in representing the
wishes of its voters, that interest does not outweigh the harms
Plaintiffs face by having their constitutional rights violated.
Plaintiffs face significant irreparable harms to themselves and
their families-inability to inherit, inability to adopt, loss of
custody, lost benefits. The State, however, has demonstrated
no real harm in continuing to recognize Plaintiffs' legally-
entered marriages. The State's harm in the Kitchen litigation
with respect to continuing to issue same-sex marriage licenses
is not the same as the harm associated with recognizing
previously-entered same-sex marriages that were valid at the
time they were solemnized. The only relevant harm in this
case is the harm that results from requiring the State to
recognize Plaintiffs' marriages.
*17 The State asserts that it is harmed by not being able
to enforce the marriage bans retroactively. But the court
has already discussed the constitutional concerns associated
with a retroactive application of the marriage bans and finds
no harm to the State based on an inability to apply the
marriage bans retroactively. The State's marriage bans are
currently in place and can stop any additional marriages from
occurring. The State's interest is in applying the current law.
The court, therefore, concludes that the balance of harms
weighs decidedly in Plaintiffs' favor and supports the court's
issuance of a preliminary injunction.
D. Public Interest
[21] [I]t is always in the public interest to prevent the
violation of a party's constitutional rights. Awad, 670 F.3d
at 1132. In this case, the court agrees with Plaintiffs that
the public is well served by having certainty about the
status of Plaintiffs' marriages. That certainty not only benefits
Plaintiffs and there families but State agencies, employers,
and other third parties who may be involved in situations
involving issues such as benefits, employment, inheritance,
child custody, and child care.
For the foregoing reasons, the court concludes that Plaintiffs
have met the clear and unequivocal standard for obtaining a
preliminary injunction during the pendency of this litigation.
Plaintiffs have demonstrated that they are likely to succeed
on the merits of their federal due process claims, that they
will be irreparably harmed if a preliminary injunction does
not issue, that the balance of harms weighs in their favor,
and that the injunction is in the public interest. Accordingly,
Plaintiffs' motion for a preliminary injunction is granted and
the court will enter a preliminary injunction preventing the
State from enforcing its marriage bans with respect to the
same-sex marriages that occurred in Utah between December
20, 2013, and January 6, 2014.
The State's Request for Stay Pending Appeal
In the event that the court decided to grant Plaintiffs' motion
for a preliminary injunction, the State requested that the court
stay the injunction pending appeal. Rule 62(c) provides that
[w]hile an appeal is pending from an interlocutory order ...
that grants ... an injunction, the court may suspend, modify,
restore, or grant an injunction on terms for bond or other terms
that secure the opposing party's rights. Rule 8(a)(1) of the
Federal Rules of Appellate Procedure provides that a party
must ordinarily first move in the district court to obtain a stay
of the judgment or order of a district court pending appeal.
Fed. R.App. P. 8(a)(1).
[22] The purpose of a stay is to preserve the status quo
pending appeal. McClendon v. City of Albuquerque, 79 F.3d
1014, 1020 (10th Cir.1996). The court has already determined
that the status quo in this case is the State recognizing
Plaintiffs' marriages. Therefore, the State's request would
alter the status quo.
*18 [23] [24] [25] The court considers the following
four factors when considering a motion to stay pending
appeal:
(1) whether the stay applicant has
made a strong showing that he is
likely to succeed on the merits;
(2) whether the applicant will be
irreparably injured absent a stay; (3)
whether issuance of the stay will
substantially injure the other parties
interested in the proceeding; and (4)
where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113,
95 L.Ed.2d 724 (1987). With respect to the four stay
factors, where the moving party has established that the three
harm factors tip decidedly in its favor, the probability
of success' requirement is somewhat relaxed. F.T.C. v.
Mainstream Marketing Services, Inc., 345 F.3d 850, 852
(10th Cir.2003) (citations omitted). If the State can meet the
other requirements for a stay pending appeal, they will be
deemed to have satisfied the likelihood of success on appeal
element if they show questions going to the merits so serious,
substantial, difficult and doubtful, as to make the issues ripe
for litigation and deserving of more deliberate investigation.
McClendon, 79 F.3d at 1020 (quoting Walmer v. United
States Dep't of Defense, 52 F.3d 851, 854 (10th Cir.), cert.
denied, 516 U.S. 974, 116 S.Ct. 474, 133 L.Ed.2d 403
(1995)).
[26] Based on the court's analysis above, this court believes
that its decision is correct and that Plaintiffs, not the State,
have demonstrated a clear likelihood of success on the
merits. Also, the court has already weighed and balanced
the harms involved in issuing its preliminary injunction.
Plaintiffs have demonstrated existing clear and irreparable
harms if an injunction is not in place. As discussed above,
the balance of harms is necessarily tied to the merits of the
decision because harm to Plaintiffs' constitutional rights are
given significantly more weight than the State's harm in not
being able to apply its marriage bans retroactively to legally-
entered marriages. The irreparable nature of Plaintiffs harms
involve fundamental rights such as the ability to adopt, the
ability to inherit, child care and custody issues, and other
basic rights that would otherwise remain in legal limbo. For
these reasons, the court cannot conclude that the harm to
the State outweighs the harm to Plaintiffs during pendency
of the appeal. The need for certainty also weighs heavily
in determining the public interest. Recognition of Plaintiffs'
marriages impacts extended families, employers, hospitals,
schools, and many other third parties. The court, therefore,
concludes that the State has not met its burden of establishing
the factors required for a stay pending appeal.
In its discretion, however, the court grants the State a limited
21day stay during which it may pursue an emergency motion
to stay with the Tenth Circuit. The court recognizes the
irreparable harms facing Plaintiffs every day. However, the
court finds some benefit in allowing the Tenth Circuit's to
review whether to stay the injunction prior to implementation
of the injunction. Therefore, notwithstanding the many
factors weighing against a stay, the court, in its discretion,
grants the State a temporary 21day stay.
Motion to Certify Questions of State Law
*19 In addition to their Motion for a Preliminary Injunction,
Plaintiffs also ask the court to certify questions of law to the
Utah Supreme Court. Specifically, Plaintiffs ask the court to
certify two specific questions: (1) Under Utah law, do same-
sex couples who were legally married between December
20, 2013, and January 6, 2014, have vested rights in their
marriages which are protected under Article I, Section 7
of the Utah Constitution?; and (2) Once the State of Utah
recognized the marriages of same-sex couples entered into
between December 20, 2013, and January 6, 2014, could it
apply Utah's marriage bans to withdraw that recognition?
The State opposed Plaintiffs' motion to certify but has now
brought its own Motion to Certify, asking the court to certify
the following question: Do same-sex couples who received
marriage licenses, and whose marriages were solemnized,
between December 20, 2013 and January 6, 2014, have
vested property rights in their marriages which now require
recognition under present Utah law?
The State opposed Plaintiffs' motion to certify on the grounds
that the answers to Plaintiffs' proposed questions were clear
and the questions were vague and unhelpful to the court.
However, after briefing and argument on Plaintiffs' motion
to certify, the State alleges that circumstances changed when
some district court judges in Utah's state courts began ruling
that Plaintiffs had vested rights in their marriages.
Rule 41(a) of the Utah Rules of Appellate Procedure provides
that the Utah Supreme Court may answer a question of
Utah law certified to it by a court of the United States when
requested to do so by such certifying court ... if the state of the
law of Utah applicable to a proceeding before the certifying
court is uncertain. Utah R.App. P. 41(a). The certification
order must state (1) the question of law to be answered, (2)
that the question certified is a controlling issue of law in a
proceeding pending before the certifying court, and (3) that
there appears to be no controlling Utah law. Id. 41(c).
The parties' requests to certify come to this court in a
fairly unusual procedural posture. Claiming that the heart of
Plaintiffs' claims is whether the State's failure to recognize
their marriages violates the Due Process Clause of the
Fourteenth Amendment, the State removed Plaintiffs' case
from state court to federal court. The State then opposed
Plaintiffs' motion to certify question to the state court. Now,
based on rulings favorable to Plaintiffs in state district courts,
the State argues that this court should certify the vested right
question to the Utah Supreme Court to ensure consistency
and fairness.
As demonstrated by the parties' competing motions, both
parties in this case seek a determination from the Utah
Supreme Court as to whether Plaintiffs have vested rights
in their marriages under Utah law. In determining Plaintiffs'
federal due process claim, this court concluded that Plaintiffs
have liberty interests inherent in the Due Process Clause and
created by state law. Therefore, the vested rights issue is an
important issue of law in this case, but it does not appear to
be essential to Plaintiffs' federal due process claim. However,
with respect to the final requirement for certificationthat
there is no controlling Utah lawthis court concluded that,
under Utah state law, Plaintiffs clearly and unequivocally
demonstrated that they have vested rights in their legally-
entered marriages and their vested marriage rights are
protected by the federal due process clause regardless of the
ultimate outcome of the Kitchen case.
*20 The State asserts that this court should certify the vested
rights question to the Utah Supreme Court because state
district court judges in several adoption cases have ruled that
Plaintiffs' have vested marriage rights and the State has sought
review of those decisions through a writ to the Utah Supreme
Court. Although the Utah Supreme Court has granted a stay
of the adoption decrees while it considers the issue, the court's
decision to have the issue briefed makes no comment on the
merits of the writs. As Plaintiffs' asserted in their oppositions,
there may be procedural grounds for dismissal or denial of
the writs that would preclude the Utah Supreme Court from
reaching the merits of the issue.
The State asserts that this court could have determined the
state law enmeshed with the federal due process challenge
but for the state adoption rulings. This court, however, is
not aware of any case in the Utah state courts that have
been favorable to the State's position. At most, some district
courts have chosen to stay the adoption cases pending a
decision on the validity of the marriages. Several state rulings
consistent with this court's determination that Plaintiffs have
vested rights in their marriages does not provide a basis for
concluding that the issue of state law is uncertain.
Finally, if the court is to consider fairness as the State
requests, the court notes that the State chose this forum by
removing the action from state court. Unlike Plaintiffs who
seek certification in order to obtain favorable rulings from
both courts, the State seeks to begin the process anew in a
different forum from the one it chose. The court agrees with
Plaintiffs that the State's late-filed motion to certify, asserting
a nearly identical question to those posed by Plaintiffs,
appears to be a delay tactic.
5
[27] Utah law clearly provides that rights in a valid marriage
vest immediately upon solemnization. There is no further
action required to be taken or that could be taken by either
party to create the vested right. There is no basis under Utah
law for finding that Plaintiffs in this case were required to take
steps beyond solemnization in order to obtain vested rights
when such steps are not required for other marriages. Because
Utah law is clear and not ultimately controlling of the case
before this court, the court concludes that there is no basis
for certifying the state law questions to the Utah Supreme
Court. Accordingly, the parties' motions to certify state law
questions are denied.
CONCLUSION
Based on the above reasoning, Plaintiffs Motion for
Preliminary Injunction [Docket No. 8] is GRANTED;
Plaintiffs' Motion to Certify Questions of Utah State Law to
the Utah Supreme Court [Docket No. 10] is DENIED; and
Defendants' Motion to Certify Questions of Utah State Law
to the Utah Supreme Court [Docket No. 34] is DENIED.
The following Preliminary Injunction Order is temporarily
stayed for twenty-one (21) days to allow the State to seek an
emergency stay pending appeal from the Tenth Circuit.
PRELIMINARY INJUNCTION ORDER
*21 The court issues the following Preliminary Injunction
against Defendants:
Defendants State of Utah, Governor Gary Herbert and
Attorney General Sean Reyes are prohibited from applying
Utah's marriage bans retroactively to the same-sex marriages
that were entered pursuant to Utah marriage licenses issued
and solemnized between December 20, 2013, and January
6, 2014. Accordingly, Defendants State of Utah, Governor
Gary Herbert and Attorney General Sean Reyes shall
immediately recognize the marriages by same-sex couples
entered pursuant to Utah marriage licenses issued and
solemnized between December 20, 2013, and January 6,
2014, and afford these same-sex marriages all the protections,
benefits, and responsibilities given to all marriages under
Utah law.
Footnotes
1
The State's Motion to Certify Questions of Utah State Law was not filed until after the hearing was held. The motion is fully briefed,
and the court concludes that a separate hearing on the motion is unnecessary.
2
In 1977, the Utah Legislature amended Utah Code Section 3012 to state [t]he following marriages are prohibited and declared
void: [marriages] between persons of the same sex. Utah Code Ann. 3012(5). In 2004, the Utah Legislature added Utah Code
Section 3014.1, which provides: It is the policy of this state to recognize as marriage only the legal union of a man and a woman;
and this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties [to same-
sex couples] that are substantially equivalent to those provided under Utah law to a man and woman because they are married. Id.
3014.1(1)(a), (b). In the November 2004 general election, Utah voters passed Amendment 3, which added Article I, Section 29 to
the Utah Constitution, effective January 1, 2005, which provides: (1) Marriage consists of only the legal union between a man and
a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially
equivalent legal effect.
3
Plaintiffs allege financial damages due to a deprivation of rights, such as Johnson and Shultz's $8,000.00 yearly loss for insurance
premiums. Plaintiffs, however, do not specifically request monetary damages in their Prayer for Relief. Rather, Plaintiffs state only
any other relief the court deems just and proper.
4
Utah courts have also recognized [t]he rights inherent in family relationshipshusband-wife, parent-child, and siblingare the
most obvious examples of rights protected by the Constitution. In re J.P., 648 P.2d 1364, 1373 (Utah 1982).
5
The State includes a footnote in its motion to certify stating that the factors warranting the application of the Colorado River abstention
doctrine apply in this case. See Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).
However, this case and the current state proceedings are not parallel actions. See Fox v. Maulding, 16 F.3d 1079, 1081 (10th Cir.1994)
([A] federal court must first determine whether the state and federal proceedings are parallel.). The state actions were instituted
as adoption proceedings and are before the Utah Supreme Court on emergency writs. The case before this court is a deprivation of
due process and liberty interest under state and federal due process. Only one couple in the adoption proceedings overlap with the
Plaintiffs in this case. Also, significantly, the rights and remedies at issue in this case are far broader than those at issue in the state
court proceedings. Moreover, the only reason both cases are not in State court is because the State removed this case from State court.
It strikes the court as procedural gamesmanship for the State to remove a case to federal court and then ask the court in the forum
the State chose to abstain from acting. The decision whether to defer to the state courts is necessarily left to the discretion of the
district court in the first instance. Id. at 1081. Such discretion must be exercised in light of the virtually unflagging obligation of
the federal courts to exercise the jurisdiction given them. Id. (citations omitted). Because these cases are not parallel actions, the
court has no discretion to abstain and must exercise its obligation to hear and decide the case presented to it.
D. Oregon.
Deanna L. GEIGER and Janine M. Nelson: Robert
Duehmig and William Grieser, Plaintiffs,
v.
John KITZHABER, in his official capacity as Gov-
ernor of Oregon; Ellen Rosenblum, in her official
capacity as Attorney General of Oregon; Jennifer
Woodward, in her official capacity as State Regis-
trar, Center for Health Statistics, Oregon Health
Authority, and Randy Walruff, in his official capa-
city as Multnomah County Assessor, Defendants.
Paul Rummell and Benjamin West; Lisa Chick-
adonz and Christine Tanner; Basic Rights Educa-
tion Fund, Plaintiffs,
John Kitzhaber, in his official capacity as Governor
of Oregon; Ellen Rosenblum, in her official capa-
city as Attorney General of Oregon; Jennifer
Woodward, in her official capacity as State Regis-
trar, Center for Health Statistics, Oregon Health
Authority, and Randy Walruff, in his official capa-
city as Multnomah County Assessor, Defendants.
Case Nos. 6:13cv01834MC,
6:13cv02256MC.
Signed May 19, 2014.
Background: In consolidated suits, four homo-
sexual couples challenged Oregon's ban on same-
sex marriage as violative of the Equal Protection
Clause of the Fourteenth Amendment. Couples
moved for summary judgment.
Holdings: The District Court, McShane, J., held
that:
(1) Oregon's prohibition of same-sex marriage dis-
criminated on basis of sexual orientation, not
gender;
(2) tradition, alone, did not provide legitimate state
interest to support prohibition; and
(3) while goals of protecting children and encour-
aging stable families were legitimate state interests,
they were not burdened by overturning prohibition.
Motions granted.
West Headnotes
[1] Marriage 253 2
253 Marriage
253k2 k. Power to regulate and control. Most
Cited Cases
Society's significant interest in marriage is
manifest by a state's rightful and legitimate concern
in regulating marriage, including the power to de-
cide what marriage is and who may enter into it.
[2] Marriage 253 3
253 Marriage
253k3 k. What law governs. Most Cited Cases
Federal government defers to state marriage
authority, accepting that marital policies may vary
from state to state.
[3] Marriage 253 2
253 Marriage
Cited Cases
Although states have wide latitude in regulat-
ing marriage, any such laws must abide by the fed-
eral Constitution.
92XXVI(A) In General
92XXVI(A)5 Scope of Doctrine in Gener-
al
92k3038 Discrimination and Classific-
ation
92k3039 k. In general. Most Cited
Cases
Page 1
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
Constitutional Law 92 3043
al
ation
92k3043 k. Statutes and other writ-
ten regulations and rules. Most Cited Cases
Fourteenth Amendment's Equal Protection
Clause presumes that one class of citizens will re-
main entitled to the same benefits and burdens as
the law affords to other classes, but this presump-
tion is tempered by the practical necessity that most
legislation classifies for one purpose or another,
granting a degree of favor to some and disadvant-
age to others. U.S.C.A. Const.Amend. 14.
92XXVI(A)6 Levels of Scrutiny
92k3052 Rational Basis Standard;
Reasonableness
Courts balance the principle of the Fourteenth
Amendment's Equal Protection Clause with the
practical reality that most legislation classifies for
one purpose or another by tolerating laws that clas-
sify groups and individuals only if such laws are ra-
tionally related to a legitimate state purpose.
U.S.C.A. Const.Amend. 14.
92XXVI(E) Particular Issues and Applica-
tions
92XXVI(E)16 Families and Children
92k3736 k. Marriage and divorce in
general. Most Cited Cases
To satisfy equal protection, laws regulating
marriage must advance legitimate state interests,
and not a mere desire to harm a particular class of
citizens. U.S.C.A. Const.Amend. 14.
92k3059 Heightened Levels of Scru-
tiny
92k3062 k. Strict scrutiny and com-
pelling interest in general. Most Cited Cases
92k3069 Particular Classes
92k3078 k. Race, national origin, or
ethnicity. Most Cited Cases
On an equal protection challenge, strict scru-
tiny, as the most exacting level of scrutiny, is re-
served for suspect classifications such as race or na-
tional origin, as these classifications raise special
fears that they are motivated by an invidious pur-
pose, thus warranting a searching judicial inquiry to
ferret out any illegitimate uses of such classifica-
tions. U.S.C.A. Const.Amend. 14.
tiny
Under the strict scrutiny level of review on an
Page 2
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
equal protection challenge, the government has the
burden of demonstrating the classifications are nar-
rowly tailored to further a compelling government
interest. U.S.C.A. Const.Amend. 14.
92k3074 k. Illegitimacy. Most
Cited Cases
92k3081 k. Sex or gender. Most
Cited Cases
On an equal protection challenge, classifica-
tions such as those based on gender or illegitimacy,
are subject to heightened scrutiny, also known as
intermediate scrutiny, under which the classifica-
tion must be substantially related to a sufficiently
important government interest. U.S.C.A.
Const.Amend. 14.
92VI Enforcement of Constitutional Provisions
92VI(C) Determination of Constitutional
Questions
92VI(C)3 Presumptions and Construction
as to Constitutionality
92k1006 Particular Issues and Applica-
tions
92k1021 k. Equal protection. Most
Cited Cases
Reasonableness
On an equal protection challenge, most classi-
fications are presumed to be valid and receive less-
exacting judicial scrutiny, known as rational basis
review, under which the Equal Protection Clause
is satisfied if: (1) there is a plausible policy reason
for the classification, (2) the legislative facts on
which the classification is apparently based ration-
ally may have been considered to be true by the
governmental decisionmaker, and (3) the relation-
ship of the classification to its goal is not so attenu-
ated as to render the distinction arbitrary or irra-
tional. U.S.C.A. Const.Amend. 14.
92XXVI(B)11 Sex or Gender
Cases
92k3438 k. Marriage and civil uni-
253 Marriage
Unions
Page 3
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
253k17.5(1) k. In general. Most Cited Cases
Oregon's prohibition of same-sex marriage dis-
criminated on basis of sexual orientation, not
gender, for purposes of equal protection challenge,
since both men and women were prohibited from
doing exact same thing, marrying someone of same
gender, and state's marriage laws instead classified
same-gender couples differently than opposite-
gender couples. U.S.C.A. Const.Amend. 14; West's
Or.Const. Art. 15, 5A; West's Or.Rev. Stat. Ann.
106.010, 106.041(1), 106.150(1).
170B Federal Courts
170BXVII(L) Determination and Disposition
of Cause
170Bk3793 Effect of Decision in Lower
Court
170Bk3796 k. Mandate. Most Cited
Cases
Federal Courts 170B 3805
170B Federal Courts
of Cause
170Bk3804 Jurisdiction and Proceedings
of Court of Appeals After Remand
170Bk3805 k. In general. Most Cited
Cases
Appellate court's decision is not final until its
mandate issues, and, absent a mandate's issuance,
the circuit retains jurisdiction of the case and may
modify or rescind its opinion.
al
ation
92k3040 k. Intentional or purpose-
ful action requirement. Most Cited Cases
Equal Protection Clause does not allow classi-
fications drawn solely for the purpose of disad-
vantaging a particular group intentionally singled
out for unequal treatment. U.S.C.A. Const.Amend.
14.
Reasonableness
Under rational basis review on an equal protec-
tion challenge, courts presume the classification is
valid, declaring it unconstitutional only when the
varying treatment of different groups or persons is
so unrelated to the achievement of any combination
of legitimate purposes that the court can only con-
clude that the legislature's actions were irrational.
253 Marriage
Unions
That majority of Oregon voters enacted ballot
measure in order to constitutionally embed classi-
Page 4
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
fications underlying state's same-sex marriage pro-
hibition made no difference to court's rational basis
review on equal protection challenge. U.S.C.A.
Const.Amend. 14; West's Or.Const. Art. 15, 5A;
West's Or.Rev. Stat. Ann. 106.010, 106.041(1),
106.150(1).
That the traditional definition of marriage ex-
cludes same-gender couples does not end the in-
quiry, under rational basis review, on an equal pro-
tection challenge. U.S.C.A. Const.Amend. 14.
Reasonableness
Cases
If tradition alone was sufficient to withstand ra-
tional basis review, the right to equal protection
would be quite hollow, as tradition would thus turn
rational basis review into a rubber stamp condoning
discriminationagainst longstanding, traditionally-op-
pressed minority classes. U.S.C.A. Const.Amend.
14.
Limiting civil marriage to opposite-gender
couples based only on a traditional definition of
marriage is simply not a legitimate purpose under
rational basis review on an equal protection chal-
lenge. U.S.C.A. Const.Amend. 14.
al
ation
Cases
Moral disapproval of a group cannot be a legit-
imate governmental interest under the Equal Pro-
tection Clause because legal classifications must
not be drawn for the purpose of disadvantaging the
group burdened by the law. U.S.C.A. Const.Amend.
14.
253 Marriage
Unions
Tradition, alone, did not provide legitimate
state interest supporting classifications underlying
Oregon's same-sex marriage prohibition, and thus
prohibition could not survive rational basis review
Page 5
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
on this ground on four homosexual couples' equal
protection challenge; regardless of religious and so-
cial traditions, once Oregon defined marriage and
attached benefits to that definition, it had to do so
constitutionally, without imposing traditional or
faith-based limitation upon such public right
without sufficient justification, and overturning
prohibition would not upset Oregonians' religious
beliefs and freedoms. U.S.C.A. Const.Amend. 14;
West's Or.Const. Art. 15, 5A; West's Or.Rev.
Stat. Ann. 106.010, 106.041(1), 106.150(1).
253 Marriage
Unions
Goal of promoting stable families constituted
legitimate state interest, but this goal would not be
burdened by overturning Oregon's same-sex mar-
riage prohibition, and thus prohibition could not
survive rational basis review on this ground on four
homosexual couples' equal protection challenge;
state's interest in promoting stable families did not
stop with families of opposite-gender couples,
which state acknowledged by enabling homosexual
couples to enter domestic partnerships, even though
state further acknowledged that such partnerships
were not equal to civil marriage. U.S.C.A.
106.150(1), 106.305(3, 4, 6, 7).
253 Marriage
Unions
Goal of protecting children constituted legitim-
ate state interest, but this goal would not be
burdened by overturning Oregon's same-sex mar-
riage prohibition, and thus prohibition could not
Oregon had clear policy of supporting all children
and of recognizing that same-sex couples were just
as good as opposite-sex couples in parenting their
children. U.S.C.A. Const.Amend. 14; West's
106.010, 106.041(1), 106.150(1), 109.050,
109.060, 109.243.
253 Marriage
Unions
Procreation was not vital to Oregon's legitimate
interest in marriage, and thus Oregon's same-sex
Page 6
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
marriage prohibition could not survive rational
basis review on this ground on four homosexual
couples' equal protection challenge. U.S.C.A.
106.150(1).
253 Marriage
Unions
Any governmental interest in responsible pro-
creation was not advanced by Oregon's ban of
same-sex marriage, and thus prohibition could not
opposite-gender couples would continue to choose
to have children responsibly or not, and those con-
siderations were not impacted in any way by wheth-
er same-gender couples were allowed to marry.
U.S.C.A. Const.Amend. 14; West's Or.Const. Art.
15, 5A; West's Or.Rev. Stat. Ann. 106.010,
106.041(1), 106.150(1).
253 Marriage
Unions
Any governmental interest in natural procre-
ation was not advanced by Oregon's ban of same-
sex marriage, and thus prohibition could not sur-
vive rational basis review on this ground on four
Oregon law played no favorites between naturally
and legitimately conceived children and those con-
ceived via artificial insemination, and its interest
was instead in child's well-being regardless of con-
ception means. U.S.C.A. Const.Amend. 14; West's
106.010, 106.041(1), 106.150(1), 109.243.
al
ation
Cases
On an equal protection challenge, to justify
classifications singling out a particular class of per-
sons, the law must, at a minimum, contain some
factual context tying the classification to the pur-
pose sought to be achieved. U.S.C.A.
Const.Amend. 14.
Page 7
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
253 Marriage
Unions
Well-being of Oregon's children was not en-
hanced by state's same-sex marriage prohibition,
and thus prohibition could not survive rational basis
review on this ground on four homosexual couples'
equal protection challenge, since prohibition
destabilized and limited rights and resources avail-
able to families of same-sex couples. U.S.C.A.
106.150(1).
West Codenotes
Held UnconstitutionalWest's Or.Const. Art. 15,
5A; West's Or.Rev. Stat. Ann. 106.010,
106.041(1), 106.150(1). Lake James H. Perriguey,
Law Works, LLC, Lea Ann Easton, Dorsay & East-
on LLP, Misha A.D. Isaak, Thomas R. Johnson,
Perkins Coie, LLP, Kevin Diaz, American Civil
Liberties Union, Portland, OR, Jennifer J.
Middleton, Johnson, Johnson & Schaller, Eugene,
OR, Amanda C. Goad, Rose Saxe, American Civil
Liberties Union Foundation, Los Angeles, CA, for
Plaintiffs.
Anna M. Joyce, Oregon Department of Justice,
Salem, OR, Mary Williams, Sheila H. Potter, Ore-
gon Department of Justice, Katharine Von Ter
Stegge, Jenny M. Madkour, Portland, OR, for De-
fendants.
OPINION
McSHANE, District Judge:
*1 The plaintiffs include four Oregon couples
seeking marriage in Multnomah County. Although
they meet the legal requirements of civil marriage
in all other respects, their requests, for marriage li-
censes have been or would be denied because each
couple is of the same gender. I am asked to con-
sider whether the state's constitutional and statutory
provisions (marriage laws) that limit civil mar-
riage to one man and one woman violate the
United States Constitution.
FN1
Because Oregon's
marriage laws discriminate on the basis of sexual
orientation without a rational relationship to any le-
gitimate government interest, the laws violate the
ment to the United States Constitution.
THE PARTIES
All of the plaintiffs
FN2
share in the character-
istics that we would normally look to when we de-
scribe the ideals of marriage and family. They
present in the record as loving and committed
couples who have established long-term relation-
ships. Each has solemnized that relationship in the
presence of their families and friends. One couple
legally married in Canada, and others temporarily
obtained marriage licenses in Multnomah County in
2004. Three of the four couples are parents, and are
involved in their children's schools and activities.
They support each other financially and emotion-
ally and, by all accounts, their lives have become
more meaningful in the single life that they share
together.
All of the plaintiffs have worked in Oregon to
support each other and their children. They are a
highly educated and productive group of individu-
als. Many of the plaintiffs work in the field of
medicine and the health sciences. Mr. Griesar is a
teacher. Mr. Rummell is a veteran of the United
States Air Force. They pay taxes. They volunteer.
They foster and adopt children who have been neg-
lected and abused. They are a source of stability to
their extended family, relatives, and friends.
Despite the fact that these couples present so
vividly the characteristics of a loving and support-
ive relationship, none of these ideals we attribute to
marriage are spousal prerequisites under Oregon
law. In fact, Oregon recognizes a marriage of love
with the same equal eye that it recognizes a mar-
riage of convenience. It affords the same set of
rights and privileges to Tristan and Isolde that it af-
fords to a Hollywood celebrity waking up in Las
Vegas with a blurry memory and a ringed finger. It
does not, however, afford these very same rights to
Page 8
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
gay and lesbian couples who wish to marry within
the confines of our geographic borders.
The defendants include the State Registrar, the
Governor, and the Attorney General of Oregon, as
well as the Assessor for Multnomah County. The
defendants concede that Oregon's marriage laws
banning same-gender marriage are unconstitutional
and legally indefensible, but state they are legally
obligated to enforce the laws until this court de-
clares the laws unconstitutional.
FN3
The case, in
this respect, presents itself to this court as
something akin to a friendly tennis match rather
than a contested and robust proceeding between ad-
versaries.
BACKGROUND
I. SameGender Marriage in Oregon and Meas-
ure 36
*2 Article I, 20 of the Oregon Constitution
prohibits granting privileges or immunities to any
citizen or class of citizens that are not equally avail-
able on the same terms to all citizens. In 1998, re-
cognizing that same-gender couples were not per-
mitted to marry, the Oregon Court of Appeals con-
cluded Article I, 20 of the Oregon Constitution
prohibited the state from denying insurance benefits
to unmarried domestic partners of homosexual em-
ployees. Tanner v. Oregon Health Sci. Univ., 157
Or.App. 502, 525, 971 P.2d 435 (1998). The state
responded by providing benefits to same-gender
couples who are able to demonstrate they share a
committed relationship similar to a marital relation-
ship.
During this same period, challenges regarding
the, rights available to same-gender couples began
to appear in the national spotlight. In 2003, the Su-
preme Judicial Court of Massachusetts concluded
that Massachusetts's same-gender marriage ban vi-
olated their state constitution. Goodridge v. Dep't of
Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 969
(2003). With that ruling, Massachusetts became the
first state to legalize same-gender marriage.
On March 3, 2004, Multnomah County determ-
ined that its failure, to issue marriage licenses to
same-gender couples violated Article I, 20 of the
Oregon Constitution. Li v. State, 338 Or. 376,
38384, 110 P.3d 91 (2005). In the following
weeks, approximately 3000 gay and lesbian couples
received marriage licenses in Multnomah County.
Id. at 384, 110 P.3d 91. At the Governor's direction,
the State Registrar refused to register the same-sex
marriages and several same-gender couples brought
a legal challenge to decide the inclusivity of Ore-
gon's marriage laws. Id.
Before the Supreme Court of Oregon weighed
in on the issue, Oregon voters provided their inde-
pendent judgment on the question by approving a
2004 ballot initiative known as Measure 36. That
measure amended the state constitution to define
marriage as a union composed of one man and one
woman. Or. Const. art. 15, 5A. Measure 36 em-
bedded constitutionally what the Oregon Supreme
Court would later conclude the state's statutes had
already required. Li, 338 Or. at 386, 110 P.3d 91
([A]lthough nothing ... expressly states that mar-
riage is limited to opposite-sex couples, the context
... leaves no doubt that, as a statutory matter, mar-
riage in Oregon is so limited.). Nearly a year after
Multnomah County began issuing marriage licenses
to same-gender couples, those licenses were
deemed invalid. Id. at 398, 110 P.3d 91.
In 2007, the Oregon State Legislature passed
the Oregon Family Farness Act, allowing same-
gender couples to register their domestic partner-
ships to receive certain state benefits. Oregon Fam-
ily Fairness Act, 2007 Or. Laws, ch. 99, 2
(codified at Or.Rev.Stat. 106.305). Domestic part-
nerships provided more equal treatment of gays
and lesbians and their families, 106.305(6), by
granting domestic partners similar rights and priv-
ileges to those enjoyed by married spouses,
106.305(5). The Legislature acknowledged,
however, that domestic partnerships did not include
the magnitude of rights inherent in the definition of
marriage. 106.305(7) (noting that numerous dis-
tinctions will exist between these two legally recog-
Page 9
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
nized relationships). In the declarations submitted
to this court, the plaintiffs maintain domestic part-
nerships have contributed greater confusion and ex-
pense to the lives of gay and lesbian couples and
their families.
*3 Last summer, the United States Supreme
Court declared 3 of the Defense Against Marriage
Act (DOMA) unconstitutional. United States v.
Windsor, U.S. , 133 S.Ct. 2675, 269596,
186 L.Ed.2d 808 (2013). As discussed below,
DOMA defined marriage as a union between one
man and one woman, 1 U.S.C. 7 (2012), thereby
prohibiting the federal government from extending
marriage benefits to legally wed, same-gender
spouses, Windsor, 133 S.Ct. at 2683. The Court
noted marriage regulations were traditionally a mat-
ter of state concern and that New York sought to
protect same-gender couples by granting them the
right to marry. DOMA violated due process and
equal protection principles because it impermissibly
sought to injure a class of persons New York spe-
cifically sought to protect. Windsor, 133 S.Ct. at
2693. The Court concluded [t]he Act's demon-
strated purpose is to ensure that if any State decides
to recognize same-sex marriages, those unions will
be treated as second-class marriages for purposes of
federal law. Id. at 269394.
Following the landmark decision in Windsor,
Oregon concluded its own agencies must recognize
same-gender marriages lawfully entered into in oth-
er jurisdictions. State Defs.' Answer & Affirmative
Defenses to Pls.' Am. Compl. Ex. A, ECF No.
581.
FN4
The state also joined an amicus curiae
brief to the Ninth Circuit Court of Appeals, which
has been asked to invalidate a same-gender mar-
riage ban in Nevada. Brief of Massachusetts, et al.,
as Amici Curiae in Supp. Mot.App. 2, Sevcik v.
Sandoval (No. 1217668). In lending its support,
the state endorsed the contention that same-sex
couples form families, raise children, and avail
themselves of the benefits and abide by the obliga-
tions of marriage in the same manner as different-
sex couples. Id. In so doing, the state effectively
acknowledged that its legitimate interest in sustain-
ing both families and communities would be
furthered if gay- and lesbian couples were able to
marry. Id.
II. The Harm Caused to Plaintiffs by the State's
Marriage Laws
The state's marriage laws impact the plaintiffs
in a myriad of ways. The laws frustrate the
plaintiffs' freedom to structure a family life and
plan for the future. Mr. Rummell did not receive a
low-interest veteran loan to aid in purchasing a
home because his income was not considered to-
gether with Mr. West's income. Ms. Geiger had to
ask her employer to extend spousal relocation bene-
fits to Ms. Nelson; a benefit that automatically
vests with married couples. When Ms. Chickadonz
gave birth to her and Ms. Tanner's children, they
encumbered adoption expenses in order for Ms.
Tanner to be the legal parent of her own children.
Domestic partnerships pledged to gay and les-
bian couples rights and responsibilities approximat-
ing those afforded to married couples. Or.Rev.Stat.
106.340(1)-(4). The plaintiffs submit that time
has tarnished the promise of domestic partnerships.
The plaintiffs explain that a general confusion per-
sists regarding domestic partnerships. They en-
counter institutional obstacles when lawyers,
courts, and health care and funerary service pro-
viders are unfamiliar with the rights that domestic
partners are entitled to under the law. Domestic
partners must draft advance medical directives to
ensure they will be able to make important medical
decisions on their partner's behalf should the neces-
sity arise. See 127.635(2). Such rights and protec-
tions pass automatically to married couples.
127.635(2)(b). Likewise, domestic partners must
draw up legal devices to imitate marriage's estate-
planning benefits. See 112.025, .035. Domestic
partners are not guaranteed the same treatment at
retirement as married couples. 106.340(6)-(8).
*4 Oregon's marriage laws foreclose its same-
gender couples (even those registered as domestic
partners) from enjoying newly available federal re-
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(Cite as: 2014 WL 2054264 (D.Or.))
cognition and benefits. They cannot file joint feder-
al income tax returns. Rev. Rul. 1317, 201338
I.R.B. 204. Instead, unmarried gay and lesbian
couples pay for costly measures that account for
their mutual incomes, expenses, and assets. Decl.
Clift 4, ECF No. 56. Oregon's marriage laws also
foreclose the pathway to citizenship that a non-
national can access by import of their marriage to a
United States citizen. Employer-provided health in-
surance benefits covering unwed partners is feder-
ally taxable income. See 26 U.S.C. 105(b),
106(b). Establishing joint ownership over an unwed
couple's assets may trigger federal gift taxation. See
Rev. Rul. 1317 at 203; 2503(b). Domestic part-
nership dissolution is taxable, unlike in marriage,
see 1041, as are the spousal-support payments
arising from such dissolutions, see 71. As com-
pared to divorce, federally qualified retirement
plans are indivisible among separating domestic
partners. See I.R.S. Notice 200830, 200812
I.R.B. 638. Gay and lesbian couples waiting for the
right to marry in Oregon risk a surviving partner
being found ineligible for a deceased partner's So-
cial Security benefits. See Soc. Sec. Admin., SSA
Pub. No. 0510084, Social Security: Survivors Be-
nefits 5 (2013). Financial aid packages for the chil-
dren of gay and lesbian families are calculated only
on the basis of one parent's income. See
1087nn(b).
Oregon's marriage laws weigh on the plaintiffs
in ways less tangible, yet no less painful. The laws
leave the plaintiffs and their families feeling de-
graded, humiliated, and stigmatized. Plaintiffs con-
sider the time, energy, and sacrifice they devote to
building a meaningful life with their loved ones,
but find their efforts less worthy in the eyes of the
law. They face a tiered system of recognition that
grants greater legal status to married felons, dead-
beat parents, and mail-order brides. They see no ra-
tionale for such treatment, and are angered by what
they perceive as state-sanctioned discrimination
against them. Accordingly, the plaintiffs request
that the state's laws withholding civil marriage from
same-gender couples be found unconstitutional.
STANDARD OF REVIEW
The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judg-
ment as a matter of law. Fed.R.Civ.P. 56(a).
DISCUSSION
I. A State's Right to Define Marriage within
Constitutional Bounds
[1] [M]arriage is often termed ... a civil contract
... [but] it is something more than a mere con-
tract.... It is an institution, in the maintenance of
which in its purity the public is deeply interested,
for it is the foundation of the family and of soci-
ety, without which there would be neither civiliz-
ation nor progress.
*5 Maynard v. Hill, 125 U.S. 190, 21011, 8
S.Ct. 723, 31 L.Ed. 654 (1888).
FN5
Society's sig-
nificant interest in marriage is manifest by a
state's rightful and legitimate concern for its
citizens' marital statuses. Williams v. North Car-
olina, 317 U.S. 287, 298, 63 S.Ct. 207, 87 L.Ed.
279 (1942); see also Li, 338 Or. at 39192, 110
P.3d 91 (quoting Dakin v. Dakin, 197 Or. 69, 72,
251 P.2d 462 (1952) (The marital relationship
[is] one in which the state is deeply concerned
and over which it exercises a jealous dominion.
)). As the state eloquently notes:
Simply put, marriage matters. It matters not only
for the individuals who decide to enter into the
civil union, but also for the state. This is why the
state links so many rights and protections to the
decision to marry. Strong, stable marriages create
unions in which children may be raised to be-
come healthy and productive citizens, in which
family members care for those who are sick or in
need and would otherwise have to rely on gov-
ernment assistance, and through which com-
munity is built and strengthened.
State Defs.' Resp. Mot. Summ. J. 1, ECF No. 64.
A state's concern in regulating marriage in-
cludes the power to decide what marriage is and
who may enter into it. Windsor, 133 S.Ct. at 2691.
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This principal role reflects the state governments'
longstanding monopoly over marital relations, an
arrangement prevailing even at the time of the Fed-
eral Constitution's adoption. Id.
[2][3] The federal government defers to state
marriage authority, accepting that marital policies
may vary from state to state. Id. Those variations
reflect the dynamics of our federal system, which
empowers citizens to seek a voice in shaping the
destiny of their own times, Bond v. United States,
U.S. , 131 S.Ct. 2355, 2364, 180 L.Ed.2d
269 (2011), and to form[ ] a consensus respecting
the way [they] treat each other in their daily contact
and constant interaction with each other, Windsor,
133 S.Ct. at 2692. Although states have wide latit-
ude in regulating marriage, any such laws must
abide by the Constitution. Loving v. Virginia, 388
U.S. 1, 1112, 87 S.Ct. 1817, 18 L.Ed.2d 1010
(1967).
[4][5] The Constitution commands that no state
may deny to any person ... the equal protection of
the laws. U.S. Const. amend. XIV, 1. This
pledge of equal protection ensures that all persons
similarly circumstanced shall be treated alike. F.S.
Royster Guano Co. v. Virginia, 253 U.S. 412, 415,
40 S.Ct. 560, 64 L.Ed. 989 (1920). The clause pre-
sumes that one class of citizens will remain entitled
to the same benefits and burdens as the law affords
to other classes. Yet, this presumption is tempered
by the practical necessity that most legislation
classifies for one purpose or another, granting a
degree of favor to some and disadvantage to oth-
ers. Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct.
1620, 134 L.Ed.2d 855 (1996). The courts balance
the constitutional principle with practical reality by
tolerating laws that classify groups and individuals
only if such laws are rationally related to a legitim-
ate state purpose. Id.
[6] States can and do rationally regulate mar-
riage. A state may, for example, permit eighteen
year olds to marry, but not twelve year olds. See
Jonathan Todres, Maturity, 48 Hous. L.Rev. 1107,
1143 (2012). A state may not, however, prevent a
white adult from marrying a non-white adult,
Loving, 388 U.S. at 11, 87 S.Ct. 1817 (overturning
one such anti-miscegenation law in Virginia), nor
may it withhold marriage from either the destitute,
Zablocki v. Redhail, 434 U.S. 374, 38788, 98 S.Ct.
673, 54 L.Ed.2d 618 (1978) (overturning a Wiscon-
sin law conditioning marriage on a non-custodial
parent's ability to satisfy existing child-support ob-
ligations), or the incarcerated, Turner v. Safley, 482
U.S. 78, 9699, 107 S.Ct. 2254, 96 L.Ed.2d 64
(1987) (overturning Missouri's requirement that in-
mates receive a warden's permission to wed), su-
perseded by statute, Religious Land Use and Insti-
tutionalized Persons Act of 2000, Pub.L. No.
106274, 3, 114 Stat. 804. One lesson to borrow
from these and similar precedents is that laws regu-
lating marriage must advance legitimate state in-
terests, and not a mere desire to harm a particular
class of its citizens.
II. The Windsor Decision and its Applicability to
the Plaintiffs' Claims
*6 As noted, DOMA was a federal attempt to
regulate marriage. That law defined marriage and
spouse to encompass opposite-gender couples
only. See 1 U.S.C. 7. The definition's effect was
to make legally married same-gender couples less
equal than married opposite-gender couples by de-
priving the former of numerous federal marital be-
nefits. Windsor, 133 S.Ct. at 2694. That result frus-
trated New York's rightful decision to confer the
dignity and privilege of marriage upon gay and les-
bian couples. Id. at 269596. In striking down the
federal definition, the Supreme Court explained that
the law's principal purpose and ... necessary ef-
fect was to demean legally married gay and les-
bian couples. Id. at 2695. [N]o legitimate purpose
behind DOMA could overcome such injury. Id. at
2696.
The case before me is not a reproduction of
Windsor. There, the Supreme Court invalidated a
federal act that impinged New York's ability to af-
ford gay and lesbian couples the full entitlements of
marriage. Id. at 2693 ([DOMA] ... impose[s] a dis-
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advantage, a separate status ... upon all who enter
into same-sex marriages made lawful by the un-
questioned authority of the States.). Here, the
plaintiffs challenge not federal but state law, one
which reserves civil marriage to the exclusive en-
joyment of opposite-gender couples. This and sim-
ilar state marriage laws elsewhere are simply bey-
ond the ambit of the Windsor ruling. See Bishop v.
United States ex rel. Holder, 962 F.Supp.2d 1252,
1278 (N.D.Okla.2014) ( Windsor does not answer
whether a state may prohibit same-sex marriage in
the. first instance.).
Windsor may be distinguished from the present
case in several respects. Yet, recounting such dif-
ferences will not detract from the underlying prin-
ciple shared in common by that case and the one
now before me. The principle is one inscribed in
the Constitution, and it requires that the state's mar-
riage laws not degrade or demean the plaintiffs in
violation of their rights to equal protection. See
Windsor, 133 S.Ct. at 2695.
III. The State's Marriage Laws Violate the
Plaintiffs' Rights to Equal Protection
As discussed above, although states may regu-
late marriage, such laws must pass constitutional
muster. Plaintiffs argue the state's marriage laws vi-
olate their rights to equal protection. When analyz-
ing a law under the Equal Protection Clause of the
Fourteenth Amendment, the court first determines
the appropriate level of scrutiny to apply.
[7][8] Strict scrutiny, the most exacting level of
scrutiny, is reserved for suspect classifications
such as race or national origin. Johnson v. Califor-
nia, 543 U.S. 499, 50506, 125 S.Ct. 1141, 160
L.Ed.2d 949 (2005). Because suspect classifications
raise special fears that they are motivated by an in-
vidious purpose, courts must engage in a
searching judicial inquiry to ferret out any illegit-
imate uses of such classifications. Id. Under this
level of review, the government has the burden of
demonstrating the classifications are narrowly
tailored to further a compelling government in-
terest. Id. at 505, 125 S.Ct. 1141.
*7 [9] Other classifications, such as those
based on gender or illegitimacy, are subject to
heightened scrutiny. City of Cleburne, Tex. v.
S.Ct. 3249, 87 L.Ed.2d 313 (1985). Under this level
of review, the classification must be substantially
related to a sufficiently important government in-
terest. Id. at 441, 105 S.Ct. 3249.
[10] Most classifications are presumed to be
valid and receive less-exacting judicial scrutiny,
known as rational basis review.
Under rational basis review, the Equal Protection
Claus is satisfied if: (1) there is a plausible policy
reason for the classification, (2) the legislative
facts on which the classification is apparently
based rationally may have been considered to be
true by the governmental decisionmaker, and (3)
the relationship of the classification to its goal is
not so attenuated as to render the distinction ar-
bitrary or irrational.
Bowers v. Whitman, 671 F.3d 905, 917 (9th
Cir.2012) (quoting Nordlinger v. Hahn, 505 U.S. 1,
10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)) (internal
quotations omitted).
A. Discriminatory Classification.
[11] Plaintiffs argue the state's marriage laws
discriminate based on gender, and therefore must
receive heightened scrutiny. This argument reasons
that because men may not marry other men, and
women may not marry other women, the classifica-
tion is necessarily one based on gender. Stated an-
other way, if either person in a specific couple
happened to be of the other gender, the couple
could in fact marry. Because the classification im-
pacts each couple based solely on the gender of
each person, plaintiffs argue the classification must
be categorized as one based on gender. I disagree.
The state's marriage laws discriminate based on
sexual orientation, not gender. In fact, the ban does
not treat genders differently at all. Men and women
are prohibited from doing the exact same thing:
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marrying an individual of the same gender. The ban
does not impact males and females differently. In-
stead, the state's marriage laws classify same-
gender couples differently than opposite-gender
couples. While opposite-gender couples may marry
a partner of their choice, same-gender couples may
not.
Plaintiffs argue the Supreme Court has rejected
government arguments based on equal applica-
tion of laws that discriminate based on suspect
classes. See Loving, 388 U.S. at 89, 87 S.Ct. 1817.
The discriminatory laws in Loving, however, are
not applicable to Oregon's marriage laws. First, the
Court specifically noted the anti-miscegenation
laws at issue therebecause they involved racial
classificationscould not survive an equal applic-
ation explanation. Id. Second, the anti-
miscegenation laws there were invidious racial
discriminations, with proffered purposes of
preserv[ing] the racial integrity of its citizens and
preventing the corruption of bldod[.] Id. at 7, 87
S.Ct. 1817 (quoting Naim v. Naim, 197 Va. 80, 87
S.E.2d 749, 756 (1955)).
There is no such invidious gender-based dis-
crimination here. The state's marriage laws clearly
were meant to, and indeed accomplished the goal
of, preventing same-gender couples from marrying.
The targeted group here is neither males nor fe-
males, but homosexual males and homosexual fe-
males. Therefore, I conclude the state's marriage
laws discriminate on the basis of sexual orientation,
not gender. See Sevcik, 911 F.Supp.2d at 1005
(analyzing a similar Nevada law, the court con-
cluded the law was not directed toward any one
gender and did not affect one gender in a way
demonstrating any gender-based animus, but was
intended to prevent homosexuals from marrying).
B. Applicable Level of Scrutiny
*8 That the state's marriage laws discriminate
based on sexual orientation does not answer the
question of what level of scrutiny applies. For the
past quarter century, laws discriminating on the
basis of sexual orientation received rational basis
review in the Ninth Circuit. High Tech Gays v. Def.
Indus. Sec. Clearance Off., 895 F.2d 563, 574 (9th
Cir.1990). In High Tech Gays, a class of plaintiffs
challenged the Department of Defense's policy of
refusing to grant security clearances to known or
suspected gay applicants on equal protection
grounds. Id. at 565. The court had to determine
whether homosexuals were a suspect or
quasi-suspect class justifying the classifications
to heightened review. The court inquired whether
homosexuals:
1) Have suffered a history of discrimination; 2)
exhibit obvious immutable, or distinguishing
characteristics that define them as a discrete
group; and 3) show that they are a minority or
politically powerless, or alternatively show that
the statutory classification at issue burdens a fun-
damental right.
Id. at 573. The court concluded that although
homosexuals suffered a history of discrimination,
they did not meet the other criteria required of sus-
pect classes. Therefore, classifications based on
sexual orientation received rational basis review.
Id. at 574.
A Ninth Circuit panel recently considered
whether High Tech Gays remains good law in light
of Windsor. SmithKline Beecham Corp. v. Abbott
Labs., 740 F.3d 471, 48084 (9th Cir.2014). After
noting that Windsor was silent as to the precise
level of scrutiny applied to the sexual orientation
discrimination at issue there, the SmithKline court
looked at what Windsor actually did in analyzing
that equal protection claim. Id. at 480. After a thor-
ough and persuasive analysis, the court concluded:
In its words and its deed, Windsor established a
level of scrutiny for classifications based on
sexual orientation that is unquestionably higher
than rational basis review. In other words, Wind-
sor requires that heightened scrutiny be applied
to equal protection claims involving sexual ori-
entation.
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Id. at 481.
[12] No mandate issued from SmithKline and,
although neither party requested a rehearing en
banc, at least one active judge of the Ninth Circuit
made a sua sponte call for a rehearing en banc.
March 27, 2014 Order. (No. 1117357, ECF No.
88). An appellate court's decision is not final until
its mandate issues. Beardslee v. Brown, 393 F.3d
899, 901 (9th Cir.2004); accord United States v.
Ruiz, 935 F.2d 1033, 1037 (9th Cir.1991) (citation
and internal quotations omitted) ([T]he legitimacy
of an expectation of finality of an appellate order
depends on the issuance or not of the mandate re-
quired to enforce the order.). Absent a mandate's
issuance, the circuit retains jurisdiction of the case
and may modify or rescind its opinion. Ruiz, 935
F.2d at 1037; accord Carver v. Lehman, 558 F.3d
869, 878 (9th Cir.2009).
*9 In other words, the panel's decision in
SmithKline is not yet a truly final and binding de-
cision. The opinion may be modified, rescinded, or
receive a majority vote for en banc review. I could
independently conclude the Supreme Court did
what SmithKline persuasively concluded it did. See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003)
(circuit panels and district courts may reject a prior
panel's opinion when that opinion is effectively
overruled by higher court). That is unnecessary
here, as the state's marriage laws cannot withstand
even the most relaxed level of scrutiny.
C. Rational Basis Review
[13][14][15] As described above, it is beyond
question that Oregon's marriage laws place burdens
upon same-gender couples that are not placed upon
opposite-gender couples. This classification implic-
ates the Equal Protection Clause. Romer v. Evans,
517 U.S. 620, 633, 116 S.Ct. 1620, 134 L.Ed.2d
855 (1996) (A law declaring that in general it shall
be more difficult for one group of citizens than for
all others to seek aid from the government is itself a
denial of equal protection of the laws in the most
literal sense.). The Equal Protection Clause does
not allow classifications drawn solely for the pur-
pose of disadvantaging a particular group intention-
ally singled out for unequal treatment. Id. For this
reason, courts inquire whether the classification is
rationally related to a legitimate government in-
terest. Id. at 63233, 116 S.Ct. 1620. Courts pre-
sume the classification is valid, declaring it uncon-
stitutional only when the varying treatment of dif-
ferent groups or persons is so unrelated to the
achievement of any combination of legitimate pur-
poses that we can only conclude that the legis-
lature's actions were irrational. Vance v. Bradley,
440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171
(1979). That a majority of Oregon voters enacted
Measure 36 in order to constitutionally embed such
classifications makes no difference to this analysis.
Romer, 517 U.S. at 635, 116 S.Ct. 1620.
As noted by the state, justifications offered in
enacting Measure 36 are similar to those offered by
other states in defending other bans on same-gender
marriage. One such justification is protecting tradi-
tional definitions of marriage. Another is protecting
children and encouraging stable families. As dis-
cussed below, only the latter justification is a legit-
imate state interest. Especially when viewed in light
of the state's other official policies, many of which
are unique to Oregon, the state's ban on same-
gender marriage is clearly unrelated to protecting
children and encouraging stable families. The mar-
riage laws place the plaintiffs and other gay and
lesbian couples seeking to marry in Oregon at a dis-
advantage, and the laws do so without any ration-
ally related government purpose.
i. Tradition
[16][17][18] Marriage has traditionally been
limited to opposite-gender couples. That the tradi-
tional definition of marriage excluded same-gender
couples, however, does not end the inquiry. See
Heller v. Doe, 509 U.S. 312, 326, 113 S.Ct. 2637,
125 L.Ed.2d 257 (1993) (Ancient lineage of a leg-
al concept does not give it immunity from attack for
lacking a rational basis.). If tradition alone was
sufficient to withstand rational basis review, the
right to equal protection would be quite hollow.
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Tradition would simply turn rational basis review
into a rubber stamp condoning discrimination
against longstanding, traditionally oppressed minor-
ity classes everywhere. Limiting civil marriage to
opposite-gender couples based only on a traditional
definition of marriage is simply not a legitimate
purpose. Golinski v. Off. of Pers. Mgmt., 824
F.Supp.2d 968, 998 (N.D.Cal.2012) ([T]he argu-
ment that the definition of marriage should remain
the same for the definition's sake is a circular argu-
ment, not a rational justification. Simply stating
what has always been does not address the reasons
for it. The mere fact that prior law, history, tradi-
tion, the dictionary and the Bible have defined a
term does not give that definition a rational basis, it
merely states what has been.).
*10 [19] Certain traditions may reflect personal
religious and moral beliefs. Such beliefs likely in-
formed the votes of many who favored Measure 36.
However, as expressed merely a year before Meas-
ure 36's passage, [m]oral disapproval of a group
cannot be a legitimate governmental interest under
the Equal Protection Clause because legal classific-
ations must not be drawn for the purpose of disad-
vantaging the group burdened by the law.
2472, 156 L.Ed.2d 508 (2003) (O'Connor, J., con-
curring in the judgment) (quoting Romer, 517 U.S.
at 633, 116 S.Ct. 1620). That year, the Supreme
Court concluded a Texas law criminalizing private,
consensual, sexual acts between two adults was un-
constitutional. The Court explicitly adopted Justice
Stevens' dissent in Bowers v. Hardwick, 478 U.S.
186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986),
another case involving laws criminalizing homo-
sexual conduct. Lawrence, 539 U.S. at 57778, 123
S.Ct. 2472. Over a vigorous dissent from Justice
Scalia, the Court adopted Justice Stevens' earlier
conclusion that the fact that the governing major-
ity in a State has traditionally viewed a particular
practice as immoral is not a sufficient reason for
upholding a law prohibiting the practice[.] Id. at
577, 123 S.Ct. 2472. This remains the law of the
land, that mere moral disapproval of a particular
group of citizens is not a legitimate reason for in-
tentionally withholding rights and benefits from
that group.
[20] To be clear, this case deals with civil mar-
riage. The state recognizes that marriage is a civil
contract. Or.Rev.Stat. 106.010. It is that right, to
enter into a civil contract of marriage, and the right
to share in the benefits and obligations flowing
from that civil contract, that are at issue here. Judge
John G. Heyburn II of the Western District of Ken-
tucky, one of an ever-increasingand so far unan-
imousnumber of state and federal judges to strike
down similar state bans following Windsor, put it
very well:
Our religious and social traditions are vital to the
fabric of society. Though each faith, minister,
and individual can define marriage for them-
selves, at issue here are laws that act outside that
protected sphere. Once the government defines
marriage and attaches benefits to that definition,
it must do so constitutionally. It cannot impose a
traditional or faith-based limitation upon a public
right without a sufficient justification for it. As-
signing a religious or traditional rationale for a
law, does not make it constitutional when that
law discriminates against a class of people
without other reasons.
The beauty of our Constitution is that it accom-
riage while preventing the government from un-
lawfully treating us differently. This is hardly
surprising since it was written by people who
came to America to find both freedom of religion
and freedom from it.
Bourke v. Beshear, F.Supp.2d , ,
2014 WL 556729, at *10 (W.D.Ky.2014).
Overturning the discriminatory marriage laws
will not upset Oregonians' religious beliefs and
freedoms.
FN6
As tradition alone does not provide a
legitimate state interest supporting classifications
based on sexual orientation, I turn to other possible
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(Cite as: 2014 WL 2054264 (D.Or.))
justifications for the state's marriage laws.
ii. Protecting Children and Encouraging Stable
Families
*11 Supporters of Measure 36, and defenders
of similar marriage laws throughout the country, of-
ten turn to variations of the state's interest in pro-
tecting children and families in supporting such
laws. These arguments range from state interests in
encouraging responsible and natural procreation
to arguments that children fare better in opposite-
gender families. Although protecting children and
promoting stable families is certainly a legitimate
governmental interest, the state's marriage laws do
not advance this interestthey harm it.
[21] Although the state has a legitimate interest
in promoting stable families, its interest does not
stop with families of opposite-gender couples. By
enabling gay and lesbian couples to enter domestic
partnerships, the state acknowledged the value and
importance such families can provide. Specifically,
the Oregon Legislature, in enacting the Oregon
Family Fairness Act, found that [t]his state has a
strong interest in promoting stable and lasting fam-
ilies, including the families of same-sex couples
and their children. All Oregon families should be
provided with the opportunity to obtain necessary
legal protections and status and the ability to
achieve their fullest potential. 106.305(4). The
legislature also found that [m]any gay and lesbian
Oregonians have formed lasting, committed, caring
and faithful relationships with individuals of the
same sex, despite long-standing social and econom-
ic discrimination. These couples live together, par-
ticipate in their communities together and often
raise children and care for family members togeth-
er, just as do couples who are married under Ore-
gon law. 106.305(3). With this finding, the legis-
lature acknowledged that our communities depend
on, and are strengthened by, strong, stable families
of all types whether headed by gay, lesbian, or
straight couples.
Yet, because the state is unable to extend to op-
posite-gender relationships the full rights, benefits,
and responsibilities of marriage, it is forced to bur-
den, demean, and harm gay and lesbian couples and
their families so long as its current marriage laws
stand. Although the state created domestic partner-
ships to ensure[e] more equal treatment of gays
and lesbians and their families, 106.305(6), it
also recognized domestic partnerships are not equal
to civil marriage, 106.305(7). Recognizing do-
mestic partnerships are not equal to marriage
simply states the obvious. In Windsor, Justice
Kennedy recently pointed out rather dramatically
these inequalities. Justice Kennedy recognized that
prohibiting same-gender couples from joining in
marriage humiliates children being raised by
same-gender couples and makes it even more dif-
ficult for the children to understand the integrity
and closeness of their own family and its concord
with other families in their community and their
daily lives. 133 S.Ct. at 2694. Creating second-tier
families does not advance the state's strong interest
in promoting and protecting all families.
*12 [22] Nor does prohibiting same-gender
marriage further Oregon's interest in protecting all
children. For example, the state's interest in protect-
ing children concerns more than just those children
created in wedlock. 109.060 (relationship
between child and parents is the same regardless of
parents' marital status). The state has an interest in
protecting all children, including adopted children.
109.050 (relationship of adoptive child and adopt-
ive parents is the same as would exist if the child
had been the adoptive parents' biological child).
And the state does not treat naturally and legitim-
ately conceived children any different than chil-
dren conceived in other ways. 109.243 (rights
between a child produced by artificial insemination
and a mother's husband are the same as those that
exist in a naturally conceived birth). When the-state
seeks homes to provide security and support for
vulnerable children, it does so without asking if the
adults in such households are married, same-gender
partnered, or single. St. Defs.' Resp. Mot. Summ. J.
22, ECF No. 64. The state's policies clearly demon-
strate its interest in supporting all children, includ-
Page 17
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
ing children raised by same-gender couples.
The above policies make perfect sense. Ore-
gon's policies accept that children fare the same
whether raised by opposite-gender or same-gender
couples. See DeBoer v. Snyder, 973 F.Supp.2d 757,
770 (E.D.Mich.2014) (noting approximately 150
sociological and psychological studies confirm
there is simply no scientific basis to conclude that
children raised in same-sex households fare worse
than those raised in heterosexual households.); De
Leon v. Perry, 975 F.Supp.2d 632, 654
(W.D.Tex.2014) ([S]ame-sex couples can be just
as responsible for a child's welfare as the countless
heterosexual couples across the nation.); Bostic v.
Rainey, 970 F.Supp.2d 456, 479 (E.D.Va.2014)
(Same-sex couples can be just as responsible for a
child's existence as the countless couples across the
nation who choose, or are compelled to rely upon,
enhanced or alternative reproduction methods for
procreation.); Perry v. Schwarzenegger, 704
F.Supp.2d 921, 980 (N.D.Cal.2010) (finding [r]he
gender of a child's parent is not a factor in a child's
adjustment. The sexual orientation of an individual
does not determine whether that individual can be a
good parent. Children raised by gay or lesbian par-
ents are as likely as children raised by heterosexual
parents to be healthy, successful and well-adjusted.
The research supporting this conclusion is accepted
beyond serious debate in the field of developmental
psychology.). The realization that same-gender
couples make just as good parents as opposite-
gender couples is supported by more than just com-
mon sense; it is also supported by the vast major-
ity of scientific studies examining the issue. See
Brief of the Am. Psychol. Ass'n, et al. as Amici
Curia, United States v. Windsor, 133 S.Ct. 2675,
269596 (2013) (12307), 2013 WL 871958, at *19
(listing studies).
*13 [23] Some argue the state's interest in re-
sponsible procreation supports same-gender mar-
riage bans. Procreation, however, is not vital to the
state's interest in marriage. Procreative potential is
not a marriage prerequisite. 106.010 (marriage is
a civil contract between males and females at least
17 years of age). There is no prohibition to mar-
riage as to sterile or infertile persons, or upon
couples who have no desire to have children. The
only prohibited marriages, other than those between
same-gender couples, are those involving first cous-
ins or those in which either party is already mar-
ried. 106.020.
[24] Additionally, any governmental interest in
responsible procreation is not advanced by denying
marriage to gay a lesbian couples. There is no lo-
gical nexus between the interest and the exclusion.
See Bishop, 962 F.Supp.2d. at 1291 ([T]here is no
rational link between excluding same-sex couples
from marriage and the goals of encouraging
responsible procreation....). Opposite-gender
couples will continue to choose to have children re-
sponsibly or not, and those considerations are not
impacted in any way by whether same-gender
couples are allowed to marry. Nothing in this
court's opinion today will effect the miracle of
birth, accidental or otherwise. A couple who has
had an unplanned child has, by definition, given
little thought to the outcome of their actions. The
fact that their lesbian neighbors got married in the
month prior to conception seems of little import to
the stork that is flying their way.
[25] The logical nexus between the state's in-
terest in natural procreation and denying mar-
riage to same-gender couples is as unpersuasive as
the argument in favor of responsible procreation.
Oregon law plays no favorites between naturally
and legitimately conceived children and those con-
ceived via artificial insemination. 109.243 (so
long as the husband consented to the artificial in-
semination, the child will have the same rights and
relationship as between naturally conceived chil-
dren). The state's interest is in a child's well-being
regardless of the means of conception. There is
simply no rational argument connecting this interest
to the prohibition of same-gender marriage.
[26] Although protecting children and promot-
ing stable families is a legitimate governmental
Page 18
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
purpose, prohibiting same-gender couples from
marrying is not rationally related to that interest. To
justify classifications singling out a particular class
of persons, the law must, at a minimum, contain
some factual context tying the classification to
the purpose sought to be achieved. Romer, 517 U.S.
at 63233, 116 S.Ct. 1620. There is no such factual
context here. In fact, the relationship between pro-
hibiting same-gender couples from marrying and
protecting children and promoting stable families is
utterly arbitrary and completely irrational. The
state's marriage laws fly in the face of the state's
strong interest in promoting stable and lasting
families, including the families of same-sex couples
and their children. 106.305(4).
*14 [27] Expanding the embrace of civil mar-
riage to gay and lesbian couples will not burden any
legitimate state interest. The attractiveness of mar-
riage to opposite-gender couples is not derived
from its inaccessibility to same-gender couples. See
Perry, 704 F.Supp.2d at 972 (Permitting same-sex
couples to marry will not affect the number of op-
posite-sex couples who marry, divorce, cohabit,
have children outside of marriage or otherwise af-
fect the stability of opposite-sex marriages.). The
well-being of Oregon's children is not enhanced by
destabilizing and limiting the rights and resources
available to gay and lesbian families. See Oberge-
fell v. Wymyslo, 962 F.Supp.2d 968, 99495
(S.D.Ohio 2013) (The only effect the bans have on
children's well-being is harming the children of
same-sex couples who are denied the protection and
stability of having parents who are legally mar-
ried.).
The state's marriage laws unjustifiably treat
same-gender couples differently than opposite-
gender couples. The laws assess a couple's fitness
for civil marriage based on their sexual orientation:
opposite-gender couples pass; same-gender couples
do not. No legitimate state purpose justifies the pre-
clusion of gay and lesbian couples from civil mar-
riage.
CONCLUSION
I am aware that a large number of Oregonians,
perhaps even a majority, have religious or moral
objections to expanding the definition of civil mar-
riage (and thereby expanding the benefits and rights
that accompany marriage) to gay and lesbian famil-
ies. It was these same objections that led to the pas-
sage of Measure 36 in 2004. Generations of Amer-
icans, my own included, were raised in a world in
which homosexuality was believed to be a moral
perversion, a mental disorder, or a mortal sin. I re-
member that one of the more popular, playground
games of my childhood was called smear the
queer
FN7
and it was played with great zeal and
without a moment's thought to today's political cor-
rectness. On a darker level, that same worldview
led to an environment of cruelty, violence, and self-
loathing. It was but 1986 when the United States
Supreme Court justified, on the basis of a
millennia of moral teaching, the imprisonment of
gay men and lesbian women who engaged in con-
sensual sexual acts. Bowers, 478 U.S. at 197, 106
S.Ct. 2841 (Burger, C.J., concurring), overruled by
Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. Even
today I am reminded of the legacy that we have be-
queathed today's generation when my son looks dis-
missively at the sweater I bought him for Christmas
and, with a roll of his eyes, says dad ... that is so
gay.
It is not surprising then that many of us raised
with such a world view would wish to protect our
beliefs and our families by turning to the ballot box
to enshrine in law those traditions we have come to
value. But just as the Constitution protects the ex-
pression of these moral viewpoints, it equally pro-
tects the minority from being diminished by them.
It is at times difficult to see past the shrillness
of the debate. Accusations of religious bigotry and
banners reading God Hates Fags make for a
messy democracy and, at times, test the First
Amendment resolve of both sides. At the core of
the Equal Protection Clause, however, there exists a
foundational belief that certain rights should be
shielded from the barking crowds; that certain
Page 19
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
rights are subject to ownership by all and not the
stake hold of popular trend or shifting majorities.
*15 My decision will not be the final word on
this subject, but on this issue of marriage I am
struck more by our similarities than our differences.
I believe that if we can look for a moment past
gender and sexuality, we can see in these plaintiffs
nothing more or less than our own families. Famil-
ies who we would expect our Constitution to pro-
tect, if not exalt, in equal measure. With discern-
ment we see not shadows lurking in closets or the
stereotypes of what was once believed; rather, we
see families committed to the common purpose of
love, devotion, and service to the greater com-
munity.
Where will this all lead? I know that many sug-
gest we are going down a slippery slope that will
have no moral boundaries. To those who truly har-
bor such fears, I can only say this: Let us look less
to the sky to see what might fall; rather, let us look
to each other ... and rise. ORDER TO FOLLOW.
ORDER
*16 The Court, having considered the
Plaintiffs' Motions for Summary Judgment (ECF
Nos. 23 and 42), the Defendants' Responses (ECF
Nos. 48 and 64), the oral arguments made by all
parties on April 23, 2014, and the briefs filed by
amicus (ECF Nos. 66, 70, and 79), GRANTS sum-
mary judgment in favor of Plaintiffs.
The Court finds that there is no legitimate state
interest that would justify the denial of the full and
equal recognition, attendant rights, benefits, protec-
tions, privileges, obligations, responsibilities, and
immunities of marriage to same-gender couples
solely on the basis that those couples are of the
same gender.
NOW, THEREFORE,
The Court GRANTS the Motions for Summary
Judgment (ECF Nos. 23 and 42) filed by the
plaintiffs in each of the consolidated cases.
The Court hereby DECLARES that Article 15,
section 5A, of the Oregon Constitution violates the
ment to the United States Constitution, and that as
such it is void and unenforceable. Defendants and
their officers, agents, and employees are PERMAN-
ENTLY ENJOINED from enforcing Article 15,
section 5A, of the Oregon Constitution.
The Court also DECLARES that ORS 106.010,
ORS 106.041(1), and ORS 106.150(1) violate the
Equal Protection Clause and are unenforceable to
the extent that they would prohibit a person from
marrying another person of the same gender, or
would deny same-gender couples the right to marry
with full and equal recognition, attendant rights, be-
nefits, privileges, obligations, responsibilities, and
immunities of marriage, where the couple would be
otherwise qualified to marry under Oregon law. De-
fendants and their officers, agents, and employees
are PERMANENTLY ENJOINED from enforcing
or applying those statutesor any other, state or
local law, rule, regulation, or ordinanceas the
basis to deny marriage to same-gender couples oth-
erwise qualified to marry in Oregon, or to deny
married same-gender couples any of the rights, be-
nefits, privileges, obligations, responsibilities, and
immunities that accompany marriage in Oregon.
The Court DECLARES that the Equal Protec-
tion Clause requires recognition of marriages of
same-gender couples legally performed in other jur-
isdictions, where those marriages are in all other re-
spects valid under Oregon law, and that no state or
local law, rule, regulation, or ordinance can deny
recognition of a same-gender couple's marriage val-
idly performed in another jurisdiction. The Court
PERMANENTLY ENJOINS Defendants and their
officers, agents, and employees from denying that
recognition.
This Order shall be effective immediately upon
filing.
*17 IT IS SO ORDERED.
Page 20
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
FN1. In 1972, the Supreme Court found a
lack of substantial federal question in the
appeal of two men seeking to marry one
another after the Minnesota Supreme Court
rejected their equal protection and due pro-
cess claims. Baker v. Nelson, 409 U.S.
810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972),
dismissing appeal from 291 Minn. 310,
191 N.W.2d 185 (1971). Considering 40
years of Supreme Court decisions, the
Court's summary order in Baker yields no
lasting precedential effect in 2014. Kitchen
v. Herbert, 961 F.Supp.2d 1181, 119495
(D.Utah 2013) ([D]octrinal developments
in the Court's analysis of both the Equal
Protection Clause and the Due Process
Clause as they apply to gay men and lesbi-
ans demonstrate that the Court's summary
dismissal in Baker has little if any preced-
ential effect today.); accord DeBoer v.
Snyder, 973 F.Supp.2d 757, n. 6
(E.D.Mich.2014); Bishop v. United States
ex rel. Holder, 962 F.Supp.2d 1252, 1277
(N.D.Okla.2014); De Leon v. Perry, 975
F.Supp.2d 632, 64849 (W.D.Tex.2014);
Bostic v. Rainey, 970 F.Supp.2d 456,
46970 (E.D.Va.2014); but see Sevcik v.
Sandoval, 911 F.Supp.2d 996, 1003
(D.Nev.2012) ([T]he present challenge is
in the main a garden-variety equal protec-
tion challenge precluded by Baker.).
FN2. Plaintiff Basic Rights Education
Fund is a civil rights organization dedic-
ated to education about and advocacy for
equal rights for lesbian, gay, bisexual, and
transgender Oregonians[.] Rummell
Mem. Supp. Mot. Summ. J., 5, ECF No.
33.
FN3. The record must reflect that Mult-
nomah County concluded 10 years ago that
denying marriage licenses to same-gender
couples violated the Oregon Constitution.
Walruff's Resp. Mot. Summ. J. 1, ECF No.
59. (The County is proud to have stood
firm on this core civil rights issue a decade
ago when backing marriage rights for all
was neither easy nor politically safe.).
Still, due to the State's marriage laws,
Multnomah County requires a court order
to resume issuing marriage licenses to
same-gender couples.
FN4. The State's recognition of out-
of-state same-gender marriages is limited
to administrative agencies, and does not
apply to the court system, local govern-
ments, or the private sector. Or. Admin. R.
1050100018 (2013).
FN5. It might be more helpful to think of
marriage as just marriagea relationship
out of which spring duties to both spouse
and society and from which are derived
rights, [ ] such as the right to society and
services and to conjugal love and affec-
tionrights which generally prove to be
either priceless or worthless, but which
none the less the law sometimes attempts
to evaluate in terms of money.
Williams v. North Carolina, 317 U.S.
287, 317, 63 S.Ct. 207, 87 L.Ed. 279
(1942) (Jackson, J., dissenting).
FN6. The New Mexico Supreme Court
succinctly noted what religious impact al-
lowing same-gender marriage would have:
Our holding will not interfere with the re-
ligious freedom of religious organizations
or clergy because (1) no religious organiz-
ation will have to change its policies to ac-
commodate same-gender couples, and (2)
no religious clergy will be required to sol-
emnize a marriage in contravention of his
or her religious beliefs. Griego v. Oliver,
316 P.3d 865, 871 (2013); see also Kit-
chen, 961 F.Supp.2d at 1214 ([T]he court
notes that its decision does not mandate
any change for religious institutions, which
Page 21
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))
may continue to express their own moral
viewpoints and define their own traditions
about marriage.).
FN7. The game entailed boys tackling one
another until one survivor remained
standing. Frazier v. Norton, 334 N.W.2d
865, 866 (S.D.1983). Children today con-
tinue to play the game, now known as kill
the carrier.
D.Or.,2014.
Geiger v. Kitzhaber
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
END OF DOCUMENT
Page 22
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
(Cite as: 2014 WL 2054264 (D.Or.))

Nos. 14-2386, 14-2387, 14-2388

In The United States Court of Appeals
For The Seventh Circuit

MARILYN RAE BASKIN, et al.,
v.

GREG ZOELLER, et al.,

MIDORI FUJII, et al.,
v.

COMMISSIONER OF THE INDIANA STATE DEPARTMENT OF REVENUE,
in his official capacity, et al.,

PAMELA LEE, et al.,
v.

BRIAN ABBOTT, et al.,

On Appeal From The United States District Court
For The Southern District of Indiana
Case Nos. 1:14-cv-00355-RLY-TAB,
1:14-cv-00404-RLY-TAB, 1:14-cv-00406-RLY-MJD
The Honorable Richard L. Young Presiding

SUPPLEMENTAL APPENDIX OF PLAINTIFFS-APPELLEES
VOL. 2 OF 2

Dallas, Texas 75219

Jordan M. Heinz
Brent P. Ray
Melanie MacKay
Scott Lerner

Camilla B. Taylor

Counsel for Plaintiffs-Appellees Marilyn Rae Baskin, et al.

Gavin M. Rose
Kelly R. Eskew
ACLU OF INDIANA

Sean C. Lemieux
LEMIEUX LAW
23 East 39th Street

James Esseks
Chase Strangio
UNION FOUNDATION

Counsel for Plaintiffs-Appellees Midori Fujii, et al.

GROTH & TOWE LLP
429 E. Vermont Street, Suite 200

One North Pennsylvania Street,
Suite 220

Mark W. Sniderman
Kathleen M. Sweeney
SWEENEY HAYES LLC
141 East Washington, Suite 225

Counsel for Plaintiffs-Appellees Pamela Lee, et al.
Additional Counsel Listed on Signature Block

Dated: July 29, 2014

Respectfully submitted,

/s/ Jordan M. Heinz

Jordan M. Heinz
Brent P. Ray
Melanie MacKay
Scott Lerner
(312) 862-2000
jordan.heinz@kirkland.com
brent.ray@kirkland.com
dmitriy.tishyevich@kirkland.com
melanie.mackay@kirkland.com
scott.lerner@kirkland.com

Barbara J. Baird
LAW OFFICE OF BARBARA J. BAIRD
445 North Pennsylvania Street, Suite
401
Indianapolis, Indiana 46204-0000
(317) 637-2345
bjbaird@bjbairdlaw.com

Marilyn Rae Baskin, et al.

Dallas, Texas 75219
(214) 219-8585, ext. 242
pcastillo@lambdalegal.org

Camilla B. Taylor
(312) 663-4413
ctaylor@lambdalegal.org

/s/ Kenneth J. Falk
Gavin M. Rose
Kelly R. Eskew
ACLU OF INDIANA
(317) 635-4059
kfalk@aclu-in.org
grose@aclu-in.org
keskew@aclu-in.org

/s/ Sean C. Lemieux
Sean C. Lemieux
LEMIEUX LAW
23 East 39th Street
(317) 985-5809
sean@lemieuxlawoffices.com


James Esseks
Chase Strangio
UNION FOUNDATION
(212) 549-2627
jesseks@aclu.org
cstrangio@aclu.org

Midori Fujii, et al.

/s/ Karen Celestino-Horseman
One North Pennsylvania Street, Suite
220
(317) 632-5633
karen@kchorseman.com

Mark W. Sniderman
(317) 361-4700
mark@snlawyers.com

Robert A. Katz
Indiana University
McKinney School of Law
530 West New York Street, Room 349

Pamela Lee, et al.
/s/ William R. Groth
GROTH & TOWE, LLP
429 East Vermont Street, Suite 200
(317) 353-9363
wgroth@fdgtlaborlaw.com

Kathleen M. Sweeney
SWEENEY HAYES LLC
141 East Washington Street, Suite 225
(317) 491-1050
ksween@gmail.com


CERTIFICATE OF SERVICE

I hereby certify that on July 29, 2014, I caused a true and correct copy of the
foregoing SUPPLEMENTAL APPENDIX OF PLAINTIFFS-APPELLEES (VOL. 2
OF 2) to be electronically filed with the Clerk of the Court for the United States
Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that
all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.

Dated: July 29, 2014 /s/ Jordan M. Heinz


Unpublished Cases Cited in Brief of Plaintiffs-Appellees
No. Case
9 Henry v. Himes, No. 1:14-cv-129, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014)
10
Huntsman v. Heavlin, No. 2014-CA-305-K (Monroe Cnty. Cir. Ct. July 17,
2014)
11 Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. June 25, 2014)
12 Latta v. Otter, No. 1:13-cv-00482, 2014 WL 1909999 (D. Idaho May 13, 2014)
13 Lee v. Orr, 13-cv-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014)
14 Love v. Beshear, No. 3:13-cv-750, 2014 WL 2957671 (W.D. Ky. July 1, 2014)
15 Pareto v. Ruvin, No. 14-1661 (Miami-Dade Cnty. Cir. Ct. July 25, 2014)
16
Tanco v. Haslam, No. 3:13-cv-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14,
2014)
17 United States v. Windsor, No. 12-307, 2013 WL 267026 (Jan. 22, 2013)
18
Whitewood v. Wolf, No. 1:13-cv-1861, 2014 WL 2058105 (M.D. Pa. May 20,
2014)
19
Wright v. Arkansas, No. 60CV-13-2662, 2014 WL 1908815 (Pulaski Cnty.
Cir. Ct. May 9, 2014)

S.D. Ohio.
Brittani HENRY, et al., Plaintiffs,
v.
Lance HIMES, et al., Defendants.
Case No. 1:14cv129.
Signed April 14, 2014.
Background: Same-sex couples married in juris-
dictions that provided for such marriages brought
action against state officials, alleging ban on same-
sex marriages in Ohio violated the Fourteenth
Amendment. Couples moved for declaratory judg-
ment and permanent injunction.
Holdings: The District Court, Timothy S. Black, J.,
held that:
(1) intermediate scrutiny applied;
(2) Ohio's interest in preserving the traditional
definition of marriage was not a legitimate justi-
fication;
(3) Ohio's refusal to recognize same-sex marriages
performed in other jurisdictions was not justified
under heightened or rational basis review by its
preference for procreation or childrearing by het-
erosexual couples; and
(4) refusal to recognize same-sex marriages per-
formed in other jurisdictions caused irreparable
harm.
Motion granted.
West Headnotes
[1] Civil Rights 78 1450
78 Civil Rights
78III Federal Remedies in General
78k1449 Injunction
78k1450 k. In General. Most Cited Cases
A party is entitled to a permanent injunction if
it can establish that it suffered a constitutional viol-
ation and will suffer continuing irreparable injury
for which there is no adequate remedy at law.
[2] Injunction 212 1009
212 Injunction
212I Injunctions in General; Permanent Injunc-
tions in General
212I(A) Nature, Form, and Scope of Remedy
212k1008 Discretionary Nature of Rem-
edy
212k1009 k. In General. Most Cited
Cases
It lies within the sound discretion of a district
court to grant or deny a motion for permanent in-
junction.
92XXVII Due Process
92XXVII(G) Particular Issues and Applica-
tions
92XXVII(G)18 Families and Children
92k4383 Marital Relationship
Cases
While states have a legitimate interest in regu-
lating and promoting marriage, the fundamental
right to marry protected by the Fourteenth Amend-
ment due process clause belongs to the individual.
92XXVII Due Process
tions
Cases
Page 1
--- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio)
(Cite as: 2014 WL 1418395 (S.D.Ohio))
92XXVII Due Process
tions
92XXVII(G)25 Other Particular Issues
and Applications
Cases
Under Fourteenth Amendment due process, the
regulation of constitutionally protected decisions,
such as where a person shall reside or whom he or
she shall marry, must be predicated on legitimate
state concerns other than disagreement with the
choice the individual has made. U.S.C.A.
Const.Amend. 14.
92VII Constitutional Rights in General
92VII(A) In General
92k1052 k. Fundamental Rights. Most
Cited Cases
Fundamental rights, once recognized, cannot be
denied to particular groups on the ground that these
groups have historically been denied those rights.
Intermediate scrutiny applied in action alleging
Ohio's ban on same-sex marriages violated Four-
teenth Amendment substantive due process.
U.S.C.A. Const.Amend. 14; Ohio Const. Art. 15,
11; Ohio R.C. 3101.01(C).
Questions
92VI(C)5 Effect of Determination
Cases
Unconstitutional laws cannot stand, even when
passed by popular vote.
92XXVII Due Process
tions
92k4385 k. Same-Sex Marriage.
Most Cited Cases
253 Marriage
Unions
Most Cited Cases
Ohio's interest in preserving the traditional
definition of marriage was not a legitimate justi-
fication for its refusal to recognize same-sex mar-
riages validly performed in other jurisdictions, and,
therefore, refusal was unconstitutional on its face as
in violation of Fourteenth Amendment substantive
due process; marriage laws implicated individuals'
property, inheritance, and family interests, which
included identifying parents on birth certificates.
11; Ohio R.C. 3101.01(C).
92XXVII Due Process
tions
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(Cite as: 2014 WL 1418395 (S.D.Ohio))
Cases
State regulation of marriage is subject to con-
stitutional guarantees and the fact that each state
has the exclusive power to create marriages within
its territory does not logically lead to the conclu-
sion that states can nullify already-established mar-
riages absent due process of law. U.S.C.A.
Const.Amend. 14.
92k3082 k. Sexual Orientation.
Most Cited Cases
Classifications based on sexual orientation
must pass muster under heightened scrutiny to sur-
vive constitutional challenge under Fourteenth
Amendment equal protection. U.S.C.A.
Const.Amend. 14.
253 Marriage
Unions
Most Cited Cases
Ohio's refusal to recognize same-sex marriages
validly performed in other jurisdictions was not jus-
tified under heightened or rational basis review by
Ohio's preference for procreation or childrearing by
heterosexual couples, and, therefore, refusal was
unconstitutional on its face as in violation of Four-
teenth Amendment equal protection; overwhelming
scientific consensus, based on decades of peer-
reviewed scientific research, showed that children
raised by same-sex couples were just as well adjus-
ted as those raised by heterosexual couples.
11; Ohio R.C. 3101.01(C).
78 Civil Rights
78III Federal Remedies in General
78k1449 Injunction
78k1456 k. Other Particular Cases and
Contexts. Most Cited Cases
Declaratory Judgment 118A 92.1
118A Declaratory Judgment
118AII Subjects of Declaratory Relief
118AII(B) Status and Legal Relations
118Ak92 Marital Status
118Ak92.1 k. In General. Most Cited
Cases
Declaratory Judgment 118A 387
118A Declaratory Judgment
118AIII Proceedings
118AIII(G) Judgment
118Ak386 Executory or Coercive Relief
118Ak387 k. Injunction. Most Cited
Cases
Ohio's refusal to recognize same-sex marriages
performed in other jurisdictions in violation of
Fourteenth Amendment substantive due process and
equal protection caused irreparable harm to same-
sex couples validly married outside Ohio, and,
therefore, warranted declaratory relief and perman-
ent injunction prohibiting enforcement of laws that
banned recognition of those marriages; refusal to
recognize marriages implicated couples' property,
inheritance, and family interests, which included
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(Cite as: 2014 WL 1418395 (S.D.Ohio))
identifying parents on birth certificates, and,
without injunction, couples would suffer delays,
bureaucratic complications, increased costs, and in-
vasions of privacy, including questioning their legal
status as parents. U.S.C.A. Const.Amend. 14; Ohio
Const. Art. 15, 11; Ohio R.C. 3101.01(C).
West Codenotes
Held UnconstitutionalOhio R.C. 3101.01(C);
Ohio Const. Art. 15, 11Alphonse Adam Gerhard-
stein, Jacklyn Gonzales Martin, Jennifer Lynn
Branch, Gerhardstein & Branch Co. LPA, Lisa Tal-
madge Meeks, Newman & Meeks Co. LPA, Ellen
Essig, Cincinnati, OH, Marshall Currey Cook,
Susan L. Sommer, Lambda Legal Defense and Edu-
cation Fund, Inc., New York, NY, Paul D. Castillo,
Lambda Legal Defense and Education Fund, Inc.,
Dallas, TX, for Plaintiffs.
Peter J. Stackpole, City of Cincinnati, Cincinnati,
OH, Bridget C. Coontz, Ryan L. Richardson, Zach-
ery Paul Keller, Ohio Attorney General, Columbus,
OH, for Defendants.
ORDER GRANTING PLAINTIFFS' MOTION
FOR DECLARATORY JUDGMENT AND
PERMANENT INJUNCTION
TIMOTHY S. BLACK, District Judge.
*1 On December 23, 2013, this Court ruled in
no uncertain terms that:
Article 15, Section 11, of the Ohio Constitu-
tion, and Ohio Revised Code Section 3101.01(C)
[Ohio's marriage recognition bans], violate
rights secured by the Fourteenth Amendment to
the United States Constitution in that same-sex
couples married in jurisdictions where same-sex
marriage is lawful, who seek to have their out-
of-state marriage recognized and accepted as leg-
al in Ohio, are denied their fundamental right to
marriage recognition without due process of law;
and are denied their fundamental right to equal
protection of the laws when Ohio does recognize
comparable heterosexual marriages from other
jurisdictions, even if obtained to circumvent Ohio
law.
Obergefell v. Wymyslo, 962 F.Supp.2d 968,
997 (S.D.Ohio 2013).
The Obergefell ruling was constrained by the
limited relief requested by the Plaintiffs in that
case, but the analysis was nevertheless universal
and unmitigated, and it directly compels the Court's
conclusion today. The record before the Court,
which includes the judicially-noticed record in
Obergefell, is staggeringly devoid of any legitimate
justification for the State's ongoing arbitrary dis-
crimination on the basis of sexual orientation, and,
therefore, Ohio's marriage recognition bans are
facially unconstitutional and unenforceable under
any circumstances.
FN1
It is this Court's responsibility to give meaning
and effect to the guarantees of the federal constitu-
tion for all American citizens, and that responsibil-
ity is never more pressing than when the funda-
mental rights of some minority of citizens are im-
pacted by the legislative power of the majority. As
the Supreme Court explained over 70 years ago:
The very purpose of a Bill of Rights was to with-
draw certain subjects from the vicissitudes of
political controversy, to place them beyond the
reach of majorities and officials and to establish
them as legal principles to be applied by the
courts. One's right to life, liberty, and property, to
free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not
be submitted to vote; they depend on the out-
come of no elections.
W. Virginia State Bd. of Educ. v. Barnette, 319
U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)
(emphasis supplied). This principle is embodied by
the Court's decision today and by the ten out of ten
federal rulings since the Supreme Court's hold-
ing in United States v. Windsorall declaring un-
constitutional and enjoining similar bans in states
across the country.
FN2
The pressing and clear
nature of the ongoing constitutional violations em-
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(Cite as: 2014 WL 1418395 (S.D.Ohio))
bodied by these kinds of state laws is evidenced by
the fact the Attorney General of the United States
and eight state attorneys general have refused to de-
fend provisions similar to Ohio's marriage recogni-
tion bans. (Doc. 25 at 2).
This civil action is now before the Court on
Plaintiffs' Motion for Declaratory Judgment and
Permanent Injunction (Doc. 18) and the parties' re-
sponsive memoranda. (Docs. 20 and 25). Plaintiffs
include four same-sex couples married in jurisdic-
tions that provide for such marriages, including
three female couples who are expecting children
conceived via anonymous donors within the next
few months and one male couple with an Ohio-born
adopted son. All four couples are seeking to have
the names of both parents recorded on their chil-
dren's Ohio birth certificates. More specifically,
Plaintiffs seek a declaration that Ohio's refusal to
recognize valid same-sex marriages is unconstitu-
tional, a permanent injunction prohibiting Defend-
ants and their officers and agents from enforcing
those bans or denying full faith and credit to de-
crees of adoption duly obtained by same-sex
couples in other jurisdictions, and the issuance of
birth certificates for the Plaintiffs' children listing
both same-sex parents. (Doc. 18 at 12).
I. ESTABLISHED FACTS
A. Marriage Law in Ohio
FN3
*2 The general rule in the United States for in-
terstate marriage recognition is the place of celeb-
ration rule, or lex loci contractus, which provides
that marriages valid where celebrated are valid
everywhere. Historically, Ohio has recognized mar-
riages that would be invalid if performed in Ohio,
but are valid in the jurisdiction where celebrated.
This is true even when such marriages clearly viol-
ate Ohio law and are entered into outside of Ohio
with the purpose of evading Ohio law with respect
to marriage. Ohio departed from this tradition in
2004 to adopt its marriage recognition ban. Prior to
2004, the Ohio legislature had never passed a law
denying recognition to a specific type of marriage
solemnized outside of the state.
Ohio Revised Code Section 3101 was amended
in 2004 to prohibit same-sex marriages in the state
and to prohibit recognition of same-sex marriages
from other states. Sub-section (C) provides the fol-
lowing:
(1) Any marriage between persons of the same
sex is against the strong public policy of this
state. Any marriage between persons of the same
sex shall have no legal force or effect in this state
and, if attempted to be entered into in this state,
is void ab initio and shall not be recognized by
this state.
(2) Any marriage entered into by persons of the
same sex in any other jurisdiction shall be con-
sidered and treated in all respects as having no
legal force or effect in this state and shall not be
recognized by this state.
(3) The recognition or extension by the state of
the specific statutory benefits of a legal marriage
to nonmarital relationships between persons of
the same sex or different sexes is against the
strong public policy of this state. Any public act,
record, or judicial proceeding of this state, as
defined in section 9.82 of the Revised Code, that
extends the specific statutory benefits of legal
marriage to nonmarital relationships between per-
sons of the same sex or different sexes is void ab
initio ...
(4) Any public act, record, or judicial proceeding
of any other state, country, or other jurisdiction
outside this state that extends the specific bene-
fits of legal marriage to nonmarital relationships
between persons of the same sex or different
sexes shall be considered and treated in all re-
spects as having no legal force or effect in this
state and shall not be recognized by this state.
Ohio Rev.Code Ann. 3101.01.
Also adopted in 2004 was an amendment to the
Ohio Constitution, which states:
Only a union between one man and one woman
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may be a marriage valid in or recognized by this
state and its political subdivisions. This state and
its political subdivisions shall not create or recog-
nize a legal status for relationships of unmarried
individuals that intends to approximate the
design, qualities, significance or effect of mar-
riage.
Ohio Const. art. XV, 11.
B. Plaintiffs
1. Henry/Rogers Family
FN4
Plaintiffs Brittani Henry and Brittni Rogers met
in 2008. They have been in a loving, committed
same-sex relationship since that time. On January
17, 2014, they were validly married in the state of
New York, which state legally recognizes their
marriage. Having established a home together and
enjoying the support of their families, the couple
decided they wanted to have children. Henry be-
came pregnant through artificial insemination
(AI), and she is due to deliver a baby boy in June
2014. The sperm donor is anonymous. Without ac-
tion by this Court, Defendants Jones and Himes
will list only one of these Plaintiffs as their son's
parent on his birth certificate.
2. Yorksmith Family
FN5
*3 Nicole and Pam Yorksmith met and fell in
love in 2006. They were married on October 14,
2008 in California, which state legally recognizes
their marriage. The Yorksmith family already in-
cludes a three-year-old son born in Cincinnati in
2010. He was conceived through AI using an an-
onymous sperm donor. Nicole is their son's birth
mother, but Pam was fully engaged in the AI pro-
cess, pregnancy, and birth. They share the ongoing
role as parents. However, only Nicole is listed on
their son's birth certificate because Defendants will
not list the names of both same-sex married parents
on the birth certificates of their children conceived
through AI.
Failing to have both parents listed on their
son's birth certificate has caused the Yorksmith
Family great concern. They have created docu-
ments attempting to ensure that Pam will be recog-
nized with authority to approve medical care, deal
with childcare workers and teachers, travel alone
with their son, and otherwise address all the issues
parents must resolve. Nicole and Pam allege that
Defendants' denial of recognition of Pam's role as
parent to their child is degrading and humiliating
for the family.
Now Nicole is pregnant with their second
child. She expects to give birth in June in Cincin-
nati. Nicole and Pam are married and will continue
to be a married couple when their second child is
born, but Defendants have taken the position that
they are prohibited under Ohio law from recogniz-
ing the California marriage and both married
spouses on the birth certificate of the Yorksmiths'
baby boy. Without action by this Court, Defendants
Jones and Himes will list only one of these
Plaintiffs as their son's parent on his birth certific-
ate.
3. Noe/McCracken Family
FN6
Plaintiffs Kelly Noe and Kelly McCracken
have been in a loving, committed same-sex rela-
tionship since 2009. From the beginning of their
time together, they agreed that they would have
children. They were married in 2011 in the state of
Massachusetts, which legally recognizes their mar-
riage. Noe became pregnant through AI using an
anonymous sperm donor. She expects to deliver a
baby in a Cincinnati hospital in June 2014. Mc-
Cracken consented to and was a full participant in
the decision to build their family using AI. Noe and
McCracken are married now and will continue to be
a married couple when their child is born, but De-
fendants have taken the position that they are pro-
hibited under Ohio law from recognizing the Mas-
sachusetts marriage and the marital presumption of
parentage that should apply to this family for pur-
poses of naming both parents on the baby's birth
certificate. Without action by this Court, Defend-
ants Jones and Himes will list only one of these
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(Cite as: 2014 WL 1418395 (S.D.Ohio))
Plaintiffs as a parent on the baby's birth certificate
when the child is born.
4. Vitale/Talmas Family
FN7
Plaintiffs Joseph J. Vitale and Robert Talmas
met in 1997. They live in New York City, where
they work as corporate executives. Vitale and Tal-
mas married on September 20, 2011 in New York,
which state legally recognizes their marriage. The
couple commenced work with Plaintiff Adoption
S.T.A.R. to start a family through adoption. Adop-
ted Child Doe was born in Ohio in 2013 and cus-
tody was transferred to Plaintiff Adoption S.T.A.R.
shortly after birth. Vitale and Talmas immediately
assumed physical custody and welcomed their son
into their home. On January 17, 2014, an Order of
Adoption of Adopted Child Doe was duly issued by
the Surrogate's Court of the State of New York,
County of New York, naming both Vitale and Tal-
mas as full legal parents of Adopted Child Doe.
*4 Plaintiffs are applying to the Ohio Depart-
ment of Health, Office of Vital Statistics, for an
amended birth certificate listing Adopted Child
Doe's adoptive name and naming Vitale and Talmas
as his adoptive parents. Based on the experience of
Plaintiff Adoption S.T.A.R. with other clients and
their direct communications with Defendant
Himes's staff at the Ohio Department of Health,
Adopted Child Doe will be denied a birth certificate
that lists both men as parents. On the other hand,
heterosexual couples married in New York who se-
cure an order of adoption from a New York court
regarding a child born in Ohio have the child's ad-
optive name placed on his or her birth certificate
along with the names of both spouses as the parents
of the adoptive child as a matter of course.
Without action by this Court, Defendant Himes
will allow only one of these Plaintiffs to be listed as
the parent on the birth certificate of Adopted Child
Doe. Vitale and Talmas object to being forced to
choose which one of them to be recognized as their
son's parent and to allowing this vitally important
document to misrepresent the status of their family.
They do not wish to expose their son to the life-
long risks and harms they allege are attendant to
having only one of his parents listed on his birth
certificate.
5. Adoption S.T.A.R.
FN8
Plaintiffs allege that prior to Governor Kasich,
Attorney General DeWine, and prior-Defendant
Wymyslo taking office in January, 2011, the Ohio
Department of Health provided same-sex married
couples such as Plaintiffs Vitale and Talmas with
birth certificates for their adopted children, consist-
ent with those requested in the Complaint. (Doc. 1).
Defendant Himes has changed that practice, and
now denies married same-sex couples with out-
of-state adoption decrees amended birth certificates
for their Ohio-born children naming both adoptive
parents. (See Docs. 46, 47, and 48).
As a result of Ohio's practice of not amending
birth certificates for the adopted children of married
same-sex parents, Plaintiff Adoption S.T.A.R. al-
leges it has been forced to change its placement
agreements to inform potential same-sex adoptive
parents that they will not be able to receive an ac-
curate amended birth certificate for adopted chil-
dren born in Ohio. Adoption S.T.A.R. alleges it has
expended unbudgeted time and money to change its
agreements and advise same-sex adoptive parents
of Ohio's discriminatory practice. It alleges it has
devoted extra time and money to cases like that of
Plaintiffs Vitale and Talmas involving same-sex
married couples who adopt children born in Ohio
through court actions in other states. Adoption
S.T.A.R. alleges that the process to seek an accur-
ate birth certificate for Adopted Child
Doeincluding participation in this lawsuitis ex-
pected to be a protracted effort that will cause the
expenditure of extra time and money.
Adoption S.T.A.R. has served same-sex mar-
ried couples in previous adoption cases and is cur-
rently serving other same-sex married couples in
various stages of the adoption process in other
states for children born in Ohio. Adoption S.T.A.R.
alleges it will serve additional same-sex married
couples in this capacity in the future. Adoption
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S.T.A.R. alleges that its clients' inability to secure
amended birth certificates from Defendant Himes
accurately listing both same-sex married persons as
the legal parents of their adopted children imposes
a significant burden on the agency's ability to
provide adequate and equitable adoption services to
its clients, results in incomplete adoptions and loss
of revenue, and frustrates the very purpose of
providing adoption services to its clients in the first
place.
II. STANDARD OF REVIEW
*5 Plaintiffs go beyond the as-applied chal-
lenge pursued in Obergefell and now seek a declar-
ation that Ohio's marriage recognition ban is fa-
cially unconstitutional, invalid, and unenforceable.
(Doc. 18 at 15). In other words, Plaintiffs allege
that no set of circumstances exists under which the
[challenged marriage recognition ban] would be
valid, and the ban should therefore be struck down
in its entirety. United States v. Salerno, 481 U.S.
739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987);
see also De Leon v. Perry, 975 F.Supp.2d 632
(W.D.Tex.2014) (declaring that Texas's ban on
same-sex marriages and marriage recognition fails
the constitutional facial challenge because ... De-
fendants have failed to provide anyand the Court
finds norational basis that banning same-sex mar-
riage furthers a legitimate governmental interest).
[1][2] A party is entitled to a permanent in-
junction if it can establish that it suffered a consti-
tutional violation and will suffer continuing irrepar-
able injury for which there is no adequate remedy at
law. Ohio Citizen Action v. City of Englewood,
671 F.3d 564, 583 (6th Cir.2012); Women's Med.
Prof'l Corp. v. Baird, 438 F.3d 595, 602 (6th
Cir.2006) (citing Kallstrom v. City of Columbus,
136 F.3d 1055, 1067 (6th Cir.1998)); Obergefell,
962 F.Supp.2d at 977. It lies within the sound dis-
cretion of the district court to grant or deny a mo-
tion for permanent injunction. eBay Inc. v. MercEx-
change, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837,
164 L.Ed.2d 641 (2006); Obergefell, 962 F.Supp.2d
at 977 (citing Kallstrom, 136 F.3d at 1067); Wayne
v. Vill. of Sebring, 36 F.3d 517, 531 (6th Cir.1994).
The existence of another adequate remedy does
not preclude a declaratory judgment that is other-
wise appropriate. Fed.R.Civ.P. 57. In the Sixth Cir-
cuit, [t]he two principal criteria guiding the policy
in favor of rendering declaratory judgments are (1)
when the judgment will serve a useful purpose in
clarifying and settling the legal relations in issue,
and (2) when it will terminate and afford relief
from the uncertainty, insecurity, and controversy
giving rise to the proceeding. Savoie v. Martin,
673 F.3d 488, 49596 (6th Cir.2012) (quoting
Grand Trunk W. R.R. Co. v. Consol. Rail Corp.,
746 F.2d 323, 326 (6th Cir.1984)); see also
Obergefell, 962 F.Supp.2d at 977. Both circum-
stances arise here.
III. ANALYSIS
This Court has already held in Obergefell that
Ohio's refusal to recognize the out-of-state mar-
riages of same-sex couples violates the Fourteenth
Amendment due process right not to be deprived
of one's already-existing legal marriage and its at-
tendant benefits and protections. 962 F.Supp.2d at
978. In the birth certificate context, much like in
the death certificate context, the marriage recogni-
tion ban denies same-sex married couples the
attendant benefits and protections associated with
state marriage recognition and documentation. This
Court further held in Obergefell that the marriage
recognition ban violate[s] Plaintiffs' constitutional
rights by denying them equal protection of the
laws. Id. at 983. Finally, this Court declared the
marriage recognition ban unconstitutional and un-
enforceable in the death certificate context.
*6 The Court's analysis in Obergefell controls
here, and compels not only the conclusion that the
marriage recognition ban is unenforceable in the
birth certificate context, but that it is facially un-
constitutional and unenforceable in any context
whatsoever.
A. Facial Challenge
Despite the limited relief pursued by the
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Plaintiffs in that case, this Court's conclusion in
Obergefell clearly and intentionally expressed the
facial invalidity of Ohio's marriage recognition ban,
not only as applied to the Plaintiffs and the issue of
death certificates, but in any application to any
married same-sex couple. 962 F.Supp.2d at 997.
Ohio's marriage recognition ban embodies an un-
equivocal, purposeful, and explicitly discriminatory
classification, singling out same-sex couples alone,
for disrespect of their out-of-state marriages and
denial of their fundamental liberties. This classific-
ation, relegating lesbian and gay married couples to
a second-class status in which only their marriages
are deemed void in Ohio, is the core constitutional
violation all of the Plaintiffs challenge.
The United States Constitution neither
knows nor tolerates classes among citizens.
Romer v. Evans, 517 U.S. 620, 623, 116 S.Ct. 1620,
134 L.Ed.2d 855 (1996) (emphasis supplied). There
can be no circumstance under which this discrimin-
atory classification is constitutional, as it was inten-
ded to, and on its face does, stigmatize and disad-
vantage same-sex couples and their families, deny-
ing only to them protected rights to recognition of
their marriages and violating the guarantee of equal
protection. Indeed, this Court already held as much
in Obergefell, finding that Ohio enacted the mar-
riage recognition bans with discriminatory animus
and without a single legitimate justification. 962
F.Supp.2d at 995.
As noted, following the Supreme Court's ruling
in United States v. Windsor, U.S. , 133
S.Ct. 2675, 186 L.Ed.2d 808 (2013), a spate of fed-
eral courts from across the nation has issued rulings
similar to Obergefell, holding that a state's ban on
the right of same-sex couples to marry or to have
their out-of-state marriages recognized violates the
constitutional due process and equal protection
rights of these families. There is a growing national
judicial consensus that state marriage laws treating
heterosexual and same-sex couples differently viol-
ate the Fourteenth Amendment, and it is this
Court's responsibility to act decisively to protect
rights secured by the United States Constitution.
The Supreme Court explained in Citizens
United v. Federal Election Commission that the
distinction between facial and as-applied challenges
is not so well defined that it has some automatic ef-
fect or that it must always control the pleadings and
disposition in every case involving a constitutional
challenge. 558 U.S. 310, 331, 130 S.Ct. 876, 175
L.Ed.2d 753 (2010). The distinction between the
two goes to the breadth of the remedy employed
by the Court, not what must be pleaded in a com-
plaint. Id. Even in a case explicitly framed only as
an as-applied challenge (which this case is not), the
Court has authority to facially invalidate a chal-
lenged law. [O]nce a case is brought, no general
categorical line bars a court from making broader
pronouncements of invalidity in properly
as-applied cases.' Id. at 331, 130 S.Ct. 876
(quoting Richard H. Fallon, Jr., AsApplied and Fa-
cial Challenges and ThirdParty Standing, 113
HARV. L.REV.. 1321, 1339 (2000)).
*7 It is therefore well within the Court's discre-
tion to find the marriage ban facially unconstitu-
tional and unenforceable in all circumstances on the
record before it, and given the Court's extensive
and comprehensive analysis in Obergefell pointing
to the appropriateness of just such a conclusion,
Defendants have been on notice of the likely facial
unconstitutionality of the marriage ban since before
this case was ever filed.
B. Due Process Clause
The Due Process Clause of the Fourteenth
Amendment establishes that no state may deprive
any person of life, liberty, or property, without due
process of law. U.S. Const. amend. XIV, 1. The
Due Process Clause protects vital personal rights
essential to the orderly pursuit of happiness by free
men, more commonly referred to as fundamental
rights. Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct.
1817, 18 L.Ed.2d 1010 (1967). There are a number
of fundamental rights and/or liberty interests pro-
tected by the Due Process clause that are implicated
by the marriage recognition ban, including the right
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(Cite as: 2014 WL 1418395 (S.D.Ohio))
to marry, the right to remain married,
FN9
and the
right to parental autonomy.
1. Right to Marry
The freedom to marry has long been recog-
nized as a fundamental right protected by the Due
Process Clause. Loving, 388 U.S. at 12, 87 S.Ct.
1817 (1967).
FN10
Some courts have not found that
a right to same-sex marriage is implicated in the
fundamental right to marry. See, e.g., Jackson v.
Abercrombie, 884 F.Supp.2d 1065, 109498
(D.Haw.2012).
FN11
However, neither the Sixth
Circuit nor the Supreme Court have spoken on the
issue, and this Court finds no reasonable basis on
which to exclude gay men, lesbians, and others who
wish to enter into same-sex marriages from this cul-
turally foundational institution.
[3][4] First, while states have a legitimate in-
terest in regulating and promoting marriage, the
fundamental right to marry belongs to the individu-
al. Accordingly, the regulation of constitutionally
protected decisions, such as where a person shall
reside or whom he or she shall marry, must be
predicated on legitimate state concerns other than
disagreement with the choice the individual has
made. Hodgson v. Minnesota, 497 U.S. 417, 435,
110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (emphasis
supplied); see also Loving, 388 U.S. at 12, 87 S.Ct.
1817 (Under our Constitution, the freedom to
marry, or not marry, a person of another race
resides with the individual and cannot be infringed
by the State); Roberts v. U.S. Jaycees, 468 U.S.
609, 620, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)
([T]he Constitution undoubtedly imposes con-
straints on the State's power to control the selection
of one's spouse ...).
The Supreme Court has consistently refused to
narrow the scope of the fundamental right to marry
by reframing a plaintiff's asserted right to marry as
a more limited right that is about the characteristics
of the couple seeking marriage. In individual cases
regarding parties to potential marriages with a wide
variety of characteristics, the Court consistently de-
scribes a general fundamental right to marry
rather than the right to interracial marriage, the
right to inmate marriage, or the right of people
owing child support to marry. See Golinski v. U.S.
Office of Pers. Mgmt., 824 F.Supp.2d 968, 982 n. 5
(N.D.Cal.2012) (citing Loving, 388 U.S. at 12, 87
S.Ct. 1817; Turner, 482 U.S. at 9496, 107 S.Ct.
2254); Zablocki v. Redhail, 434 U.S. 374, 38386,
98 S.Ct. 673, 54 L.Ed.2d 618 (1978); accord In re
Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d
683, 183 P.3d 384, 421 n. 33 (2008) (Turner did
not characterize the constitutional right at issue as
the right to inmate marriage ).
*8 In Lawrence v. Texas, 539 U.S. 558, 123
S.Ct. 2472, 156 L.Ed.2d 508 (2003), the Supreme
Court held that the right of consenting adults
(including same-sex couples) to engage in private,
sexual intimacy is protected by the Fourteenth
Amendment's protection of liberty, notwithstanding
the historical existence of sodomy laws and their
use against gay people. For the same reasons, the
fundamental right to marry is deeply rooted in this
Nation's history and tradition for purposes of con-
stitutional protection even though same-sex couples
have not historically been allowed to exercise that
right. [H]istory and tradition are the starting point
but not in all cases the ending point of the substant-
ive due process inquiry. Id. at 572, 123 S.Ct. 2472
(citation omitted). While courts use history and tra-
dition to identify the interests that due process pro-
tects, they do not carry forward historical limita-
tions, either traditional or arising by operation of
prior law, on which Americans may exercise a
right, once that right is recognized as one that due
process protects.
[5] Fundamental rights, once recognized, can-
not be denied to particular groups on the ground
that these groups have historically been denied
those rights. In re Marriage Cases, 76 Cal.Rptr.3d
683, 183 P.3d at 430 (quotation omitted). For ex-
ample, when the Supreme Court held that anti-
miscegenation laws violated the fundamental right
to marry in Loving, it did so despite a long tradition
of excluding interracial couples from marriage.
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(Cite as: 2014 WL 1418395 (S.D.Ohio))
Planned Parenthood v. Casey, 505 U.S. 833,
84748, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)
([I]nterracial marriage was illegal in most States in
the 19th century, but the Court was no doubt cor-
rect in finding it to be an aspect of liberty protected
against state interference by the substantive com-
ponent of the Due Process Clause in Loving ...);
Lawrence, 539 U.S. at 57778, 123 S.Ct. 2472
([N]either history nor tradition could save a law
prohibiting miscegenation from constitutional at-
tack) (citation omitted). Indeed, the fact that a
form of discrimination has been traditional is a
reason to be more skeptical of its rationality and
cause for courts to be especially vigilant.
Cases subsequent to Loving have similarly con-
firmed that the fundamental right to marry is
available even to those who have not traditionally
been eligible to exercise that right. See Boddie v.
Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 28
L.Ed.2d 113 (1971) (states may not require indigent
individuals to pay court fees in order to obtain a di-
vorce, since doing so unduly burdened their funda-
mental right to marry again); see also Zablocki, 434
U.S. at 38890, 98 S.Ct. 673 (state may not condi-
tion ability to marry on fulfillment of existing child
support obligations). Similarly, the right to marry
as traditionally understood in this country did not
extend to people in prison. See Virginia L. Hard-
wick, Punishing the Innocent: Unconstitutional Re-
strictions on Prison Marriage and Visitation, 60
N.Y.U. L.Rev. 275, 27779 (1985). Nevertheless,
in Turner, 482 U.S. at 9597, 107 S.Ct. 2254, the
Supreme Court held that a state cannot restrict a
prisoner's ability to marry without sufficient justi-
fication. When analyzing other fundamental rights
and liberty interests in other contexts, the Supreme
Court has consistently adhered to the principle that
a fundamental right, once recognized, properly be-
longs to everyone.
FN12
*9 Consequently, based on the foregoing, the
right to marriage is a fundamental right that is
denied to same-sex couples in Ohio by the marriage
recognition bans.
2. Right of Marriage Recognition
Defendants also violate the married Plaintiffs'
right to remain married by enforcing the marriage
bans, which right this Court has already identified
as a fundamental liberty interest appropriately pro-
tected by the Due Process Clause of the United
States Constitution. Obergefell, 962 F.Supp.2d at
978. When a state effectively terminates the mar-
riage of a same-sex couple married in another juris-
diction, it intrudes into the realm of private marital,
family, and intimate relations specifically protected
by the Supreme Court. Id. at 979; see also Wind-
sor, 133 S.Ct. at 2694 (When one jurisdiction re-
fuses recognition of family relationships legally es-
tablished in another, the differentiation demeans
the couple, whose moral and sexual choices the
Constitution protects ... and whose relationship the
State has sought to dignify). As the Supreme
Court has held: this differential treatment
humiliates tens of thousands of children now be-
ing raised by same-sex couples, which group in-
cludes Adopted Child Doe and the children who
will be born to the Henry/Rogers, Yorksmith, and
Noe/McCracken families. Windsor, 133 S.Ct. at
2694.
3. Right to Parental Authority
Finally, the marriage recognition bans also im-
plicate the parenting rights of same-sex married
couples with children. The Constitution accords
parents significant rights in the care and control of
their children. See Parham v. J.R., 442 U.S. 584,
602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). Parents
enjoy unique rights to make crucial decisions for
their children, including decisions about schooling,
religion, medical care, and with whom the child
may have contact. See, e.g., id. (medical decisions);
Pierce v. Soc'y of Sisters, 268 U.S. 510, 45 S.Ct.
571, 69 L.Ed. 1070 (1925) (education and religion);
Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67
L.Ed. 1042 (1923) (education); Troxel v. Granville,
530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49
(2000) (visitation with relatives). U.S. Supreme
Court rulings, reflected in state laws, make clear
that these parental rights are fundamental and may
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be curtailed only under exceptional circumstances.
See Troxel, 530 U.S. at 66, 120 S.Ct. 2054; Stanley
v. Illinois, 405 U.S. 645, 65152, 92 S.Ct. 1208, 31
L.Ed.2d 551 (1972); see also, e.g., In re D.A., 113
Ohio St.3d 88, 862 N.E.2d 829, 832 (2007) (citing
Ohio cases on parents' paramount right to custody
of their children).
As a general matter, the Supreme Court applies
strict scrutiny when a state law encroaches on a
fundamental right, and thus such scrutiny is appro-
priate in the context of the right to marry and the
right to parental authority. See, e.g., Roe v. Wade,
410 U.S. 113, 155, 93 S.Ct. 705, 35 L.Ed.2d 147
(1973).
[6] The right to marriage recognition has not
been expressly recognized as fundamental,
however, and in the previously referenced set of
cases establishing the highly-protected status of ex-
isting marriage, family, and intimate relationships,
the Supreme Court has often applied an intermedi-
ate standard of review falling in between rational
basis and strict scrutiny. See, e.g., Moore, 431 U.S.
at 503, 97 S.Ct. 1932 (1977) (balancing the state in-
terests advanced and the extent to which they are
served by the challenged law against the burden on
plaintiff's rights); Zablocki, 434 U.S. at 374, 98
S.Ct. 673 (same). As this Court held in Obergefell,
the balancing approach of intermediate scrutiny is
appropriate in this similar instance where Ohio is
intruding intoand in fact erasingPlaintiffs'
already-established marital and family relations.
962 F.Supp.2d at 979.
5. Burden on Plaintiffs
*10 When couplesincluding same-sex
couplesenter into marriage, it generally involves
long-term plans for how they will organize their
finances, property, and family lives. In an age of
widespread travel and ease of mobility, it would
create inordinate confusion and defy the reasonable
expectations of citizens whose marriage is valid in
one state to hold that marriage invalid elsewhere.
In re Estate of Lenherr, 455 Pa. 225, 314 A.2d 255,
258 (1974). Married couples moving from state to
state have an expectation that their marriage and,
more concretely, the property interests involved
with itincluding bank accounts, inheritance
rights, property, and other rights and benefits asso-
ciated with marriagewill follow them.
When a state effectively terminates the mar-
riage of a same-sex couple married in another jur-
isdiction by refusing to recognize the marriage,
that state unlawfully intrudes into the realm of
private marital, family, and intimate relations spe-
cifically protected by the Supreme Court. After
Lawrence, same-sex relationships fall squarely
within this sphere, and when it comes to same-sex
couples, a state may not seek to control a personal
relationship, define the meaning of the relation-
ship, or set its boundaries absent injury to a per-
son or abuse of an institution the law protects.
Lawrence, 539 U.S. at 578, 123 S.Ct. 2472.
For example, when a parent's legal relationship
to his or her child is terminated by the state, it must
present clear and convincing evidence supporting
its action to overcome the burden of its loss, San-
tosky v. Kramer, 455 U.S. 745, 753, 769, 102 S.Ct.
1388, 71 L.Ed.2d 599 (1982); and, here, a similar
legal familial relationship is terminated by Ohio's
marriage recognition ban. Moreover, the official
statutory and constitutional establishment of same-
sex couples married in other jurisdictions as a dis-
favored and disadvantaged subset of relationships
has a destabilizing and stigmatizing impact on those
relationships. In striking down the statutory provi-
sion that had denied gay and lesbian couples federal
recognition of their otherwise valid marriages in
Windsor, the Supreme Court observed:
[The relevant statute] tells those couples, and all
the world, that their otherwise valid marriages are
unworthy of ... recognition. This places same-sex
couples in an unstable position of being in a
second-tier marriage. The differentiation de-
means the couple, whose moral and sexual
choices the Constitution protects ... And it humi-
liates tens of thousands of children now being
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raised by same-sex couples. The law in question
makes it even more difficult for the children to
understand the integrity and closeness of their
own family and its concord with other families in
their community and in their daily lives.
133 S.Ct. at 2694 (emphasis supplied).
In the family law context, while opposite-sex
married couples can invoke step-parent adoption
procedures or adopt children together, same-sex
married couples cannot. Ohio courts allow an indi-
vidual gay or lesbian person to adopt a child, but
not a same-sex couple. Obergefell, 962 F.Supp.2d
at 980. Same-sex couples are denied local and state
tax benefits available to heterosexual married
couples, denied access to entitlement programs
(Medicaid, food stamps, welfare benefits, etc.)
available to heterosexual married couples and their
families, barred by hospital staff and/or relatives
from their long-time partners' bedsides during seri-
ous and final illnesses due to lack of legally-re-
cognized relationship status, denied the remedy of
loss of consortium when a spouse is seriously in-
jured through the acts of another, denied the rem-
edy of a wrongful death claim when a spouse is
fatally injured through the wrongful acts of another,
and evicted from their homes following a spouse's
death because same-sex spouses are considered
complete strangers to each other in the eyes of the
law. Id.
*11 Identification on the child's birth certific-
ate is the basic currency by which parents can
freely exercise these protected parental rights and
responsibilities. It is also the only common govern-
mentally-conferred, uniformly-recognized, readily-
accepted record that establishes identity, parentage,
and citizenship, and it is required in an array of leg-
al contexts. Obtaining a birth certificate that ac-
curately identifies both parents of a child born us-
ing anonymous donor insemination or adopted by
those parents is vitally important for multiple pur-
poses. The birth certificate can be critical to regis-
tering the child in school;
FN13
determining the
parents' (and child's) right to make medical de-
cisions at critical moments; obtaining a social se-
curity card for the child;
FN14
obtaining social se-
curity survivor benefits for the child in the event of
a parent's death; establishing a legal parent-child re-
lationship for inheritance purposes in the event of a
parent's death;
FN15
claiming the child as a de-
pendent on the parent's insurance plan; claiming the
child as a dependent for purposes of federal income
taxes; and obtaining a passport for the child and
traveling internationally.
FN16
The inability to ob-
tain an accurate birth certificate saddles the child
with the life-long disability of a government iden-
tity document that does not reflect the child's par-
entage and burdens the ability of the child's par-
ents to exercise their parental rights and respons-
ibilities.
The benefits of state-sanctioned marriage are
extensive, and the injuries raised by Plaintiffs rep-
resent just a portion of the harm suffered by same-
sex married couples due to Ohio's refusal to recog-
nize and give legal effect to their lawful unions.
6. Potential State Interests
[7] Defendants advance a number of interests
in support of Ohio's marriage recognition ban.
(Doc. 20 at 3236). Defendants cite the decision to
preserve uniformly the traditional definition of mar-
riage without regard to contrary determinations by
some other jurisdictions, avoiding judicial intru-
sion upon a historically legislative function,
assur[ing] that it is the will of the people of Ohio
... that controls, approaching social change with
deliberation and due care, and [p]reserving the
traditional definition of marriage, although they
raise these interests in the context of a rational basis
equal protection analysis. (Id.) Although strict scru-
tiny is implicated by more than one fundamental
right threatened by the marriage recognition ban,
even in the intermediate scrutiny context, these
vague, speculative, and/or unsubstantiated state in-
terests rise nowhere near the level necessary to
counterbalance the specific, quantifiable, particular-
ized injuries detailed above suffered by same-sex
couples when their existing legal marriages and the
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(Cite as: 2014 WL 1418395 (S.D.Ohio))
attendant protections and benefits are denied to
them by the state. In particular, the Court notes that
given that all practicing attorneys, as well as the
vast majority of all citizens in this country, are
fully aware that unconstitutional laws cannot
stand, even when passed by popular vote, Defend-
ants' repeated appeal to the purportedly sacred
nature of the will of Ohio voters is particularly
specious.
*12 [8] The stated interest in preserving the
traditional definition of marriage is not a legitim-
ate justification for Ohio's arbitrary discrimination
against gays based solely on their sexual orienta-
tion. As federal judge John G. Heyburn II elo-
quently explained in invalidating Kentucky's simil-
ar marriage recognition ban:
Many Kentuckians believe in traditional mar-
riage. Many believe what their ministers and
scriptures tell them: that a marriage is a sacra-
ment instituted between God and a man and a
woman for society's benefit. They may be con-
fusedeven angrywhen a decision such as this
one seems to call into question that view. These
concerns are understandable and deserve an an-
swer.
Our religious beliefs and societal traditions are
vital to the fabric of society. Though each faith,
minister, and individual can define marriage for
themselves, at issue here are laws that act outside
that protected sphere. Once the government
defines marriage and attaches benefits to that
definition, it must do so constitutionally. It can-
not impose a traditional or faith-based limitation
upon a public right without a sufficient justifica-
tion for it. Assigning a religious or traditional ra-
tionale for a law, does not make it constitutional
when that law discriminates against a class of
people without other reasons.
The beauty of our Constitution is that is accom-
riage while preventing the government from un-
lawfully treating us differently. This is hardly
surprising since it was written by people who
came to America to find both freedom of reli-
gion and freedom from it.
Bourke v. Beshear, F.Supp.2d , ,
2014 WL 556729, at *10 (W.D.Ky. Feb. 12, 2014)
(emphasis supplied) (declaring Kentucky's anti-
recognition provisions unconstitutional on equal
protection grounds).
[9] Defendants argue that Windsor stressed that
regulation of domestic relations is an area that has
long been regarded as a virtually exclusive province
of the States. 133 S.Ct. at 2692. However, as this
Court emphasized in Obergefell, this state regula-
tion of marriage is subject to constitutional guar-
antees and the fact that each state has the exclus-
ive power to create marriages within its territory
does not logically lead to the conclusion that states
can nullify already-established marriages absent
due process of law. 962 F.Supp.2d at 981.
Quintessentially, as the Supreme Court has
held, marriage confers a dignity and status of im-
mense import. Windsor, 133 S.Ct. at 2692. When a
state uses its historic and essential authority to
define the marital relation in this way, its role and
its power in making the decision enhance[s] the re-
cognition, dignity, and protection of the class in
their own community. Id. Here, based on the re-
cord, Defendants have again failed to provide evid-
ence of any state interest compelling enough to
counteract the harm Plaintiffs suffer when they lose
this immensely important dignity, status, recogni-
tion, and protection, as such a state interest does not
exist.
*13 Accordingly, Ohio's refusal to recognize
same-sex marriages performed in other jurisdictions
violates the substantive due process rights of the
parties to those marriages because it deprives them
of their rights to marry, to remain married, and to
effectively parent their children, absent a sufficient
articulated state interest for doing so.
C. Equal Protection Clause
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This Court's analysis in Obergefell also com-
pels the conclusion that Defendants violate
Plaintiffs' right to equal protection by denying re-
cognition to their marriages and the protections for
families attendant to marriage. In Obergefell, this
Court noted Ohio's long history of respecting out-
of-state marriages if valid in the place of celebra-
tion, with only the marriages of same-sex couples
singled out for differential treatment. 962
F.Supp.2d at 98384.
Under Ohio law, if the Henry/Rogers, York-
smith, and Noe/McCracken couples' marriages were
accorded respect, both spouses in the couple would
be entitled to recognition as the parents of their ex-
pected children. As a matter of statute, Ohio re-
spects the parental status of the non-biologically re-
lated parent whose spouse uses AI to conceive a
child born to the married couple. See Ohio
Rev.Code 3111.95 (providing that if a married
woman uses non-spousal artificial insemination
to which her spouse consented, the spouse shall be
treated in law and regarded as the parent of the
child, and the sperm donor shall have no parental
rights); see also Ohio Rev.Code 3111.03
(providing that a child born to a married couple is
presumed the child of the birth mother's spouse).
An Ohio birth certificate is a legal document,
not a medical record. Birth certificates for newborn
babies are generated by Defendants through use of
the Integrated Perinatal Health Information System
(IPHIS) with information collected at birth facil-
ities.
FN17
Informants are advised that [t]he birth
certificate is a document that will be used for im-
portant purposes including proving your child's age,
citizenship and parentage. The birth certificate will
be used by your child throughout his/her life.
FN18
The Ohio Department of Health routinely
issues birth certificates naming as parents both
spouses to opposite-sex married couples who use
AI to conceive their children.
FN19
However, De-
fendants refuse to recognize these Plaintiffs' mar-
riages and the parental presumptions that flow from
them, and will refuse to issue birth certificates
identifying both women in these couples as parents
of their expected children. (Doc. 15 at 5962).
Similarly, when an Ohio-born child is adopted
by the decree of a court of another state, the Ohio
Department of Health shall issue ... a new birth re-
cord using the child's adoptive name and the names
of and data concerning the adoptive parents. Ohio
Rev.Code 3705.12(A)(1). However, the Depart-
ment of Health refuses to comply with this require-
ment based on Ohio Rev.Code 3107.18(A), which
provides that [e]xcept when giving effect to such a
decree would violate the public policy of this state,
a court decree ... establishing the relationship by
adoption, issued pursuant to due process of law by
a court of any jurisdiction outside this state ... shall
be recognized in this state.
*14 Before Governor Kasich's administration
and prior-Defendant Wymyslo's leadership of the
Department of Health, Ohio recognized out-of-state
adoption decrees of same-sex couples and supplied
amended birth certificates identifying the adoptive
parents. (See Docs. 46, 47, and 48). However,
the current administration takes the position that is-
suing birth certificates under such circumstances
would violate public policy, i.e., Ohio's purported
limitation on adoptions within the State to couples
only if those couples are married. O.R.C.
3107.03(A). If the Vitale/Talmas spouses were an
opposite-sex couple, Defendant Himes would re-
cognize their marriage, their New York adoption
decree, and their right to an accurate birth certi-
ficate for Adopted Child Doe.
1. Heightened Scrutiny
As the Court discussed in Obergefell, the Sixth
Circuit has not reviewed controlling law regarding
the appropriate level of scrutiny for reviewing clas-
sifications based on sexual orientation, such as
Ohio's marriage recognition ban, since Windsor.
962 F.Supp.2d at 986. The most recent Sixth Cir-
cuit case to consider the issue, Davis v. Prison
Health Servs., 679 F.3d 433, 438 (6th Cir.2012), re-
jected heightened scrutiny by relying on Scar-
brough v. Morgan Cnty. Bd. of Educ., 470 F.3d
Page 15
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250, 261 (6th Cir.2006), which in turn relied on
Equality Foundation of Greater Cincinnati, Inc. v.
City of Cincinnati, 128 F.3d 289, 293 (6th
Cir.1997). As the Court concluded in Obergefell,
however, Equality Foundation now rests on shaky
ground and there are ample reasons to revisit the
question of whether sexual orientation is a suspect
classification, including the fact that Sixth Circuit
precedent on this issue Equality Foundation
among itis based on Bowers v. Hardwick, 478
U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986),
which was overruled by Lawrence, 539 U.S. at 558,
123 S.Ct. 2472. Bassett v. Snyder, 951 F.Supp.2d
939, 94546 (E.D.Mich.2013) (same-sex couples
demonstrated a likelihood of success on the merits
of their equal protection claim regarding a
Michigan law prohibiting same-sex partners from
receiving public employer benefits).
FN20
The Su-
preme Court, in overruling Bowers, emphatically
declared that it was not correct when it was de-
cided and is not correct today. Lawrence, 539 U.S.
at 578, 123 S.Ct. 2472.
[10] As a result, this Court held in Obergefell
that lower courts without controlling post-
Lawrence precedent on the issue should now apply
the criteria mandated by the Supreme Court to de-
termine whether sexual orientation classifications
should receive heightened scrutiny. 962 F.Supp.2d
at 987. The Court then analyzed the four factors
that, to varying degrees, may be considered to de-
termine whether classifications qualify as suspect
or quasi-suspect: whether the class (1) has faced
historical discrimination, (2) has a defining charac-
teristic that bears no relation to ability to contribute
to society, (3) has immutable characteristics, and
(4) is politically powerless. Id. at 98791. The
Court concluded that [s]exual orientation discrim-
ination accordingly fulfills all the criteria the Su-
preme Court has identified, thus Defendants must
justify Ohio's failure to recognize same-sex mar-
riages in accordance with a heightened scrutiny
analysis, and finally that Defendants utterly
failed to do so. Id. at 991. Subsequent to Oberge-
fell, the Ninth Circuit similarly held that Windsor
requires heightened scrutiny for classifications
based on sexual orientation. SmithKline Beecham
Corp. v. Abbott Laboratories, 740 F.3d 471, 484
(9th Cir.2014) (we are required by Windsor to ap-
ply heightened scrutiny to classifications based on
sexual orientation for purposes of equal protection
... Thus, there can no longer be any question that
gays and lesbians are no longer a group or class of
individuals normally subject to rational basis' re-
view. ) (citation omitted). The Court's entire
Obergefell analysis applies and controls here, and
classifications based on sexual orientation must
pass muster under heightened scrutiny to survive
constitutional challenge.
*15 [11] Here, Defendants' discriminatory
conduct most directly affects the children of same-
sex couples, subjecting these children to harms
spared the children of opposite-sex married par-
ents. Ohio refuses to give legal recognition to both
parents of these children, based on the State's dis-
approval of their same-sex relationships. Defend-
ants withhold accurate birth certificates from these
children, burdening the children because their par-
ents are not the opposite-sex married couples who
receive the State's special stamp of approval. The
Supreme Court has long held that disparate treat-
ment of children based on disapproval of their
parents' status or conduct violates the Equal Pro-
tection Clause. See, e.g., Plyler v. Doe, 457 U.S.
202, 220, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)
(striking down statute prohibiting undocumented
immigrant children from attending public schools
because it imposes its discriminatory burden on
the basis of a legal characteristic over which the
children can have little control).
FN21
Such dis-
crimination also triggers heightened scrutiny. See,
e.g., Pickett v. Brown, 462 U.S. 1, 8, 103 S.Ct.
2199, 76 L.Ed.2d 372 (1983).
The children in Plaintiffs' and other same-sex
married couples' families cannot be denied the right
to two legal parents, reflected on their birth certific-
ates and given legal respect, without a sufficient
justification. No such justification exists.
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2. Rational Basis
As the Court further held in Obergefell, even if
no heightened level of scrutiny is applied to Ohio's
marriage recognition bans, they still fail to pass
constitutional muster. 962 F.Supp.2d at 991. The
Court noted that [e]ven in the ordinary equal pro-
tection case calling for the most deferential of
standards, [the Court] insist[s] on knowing the rela-
tion between the classification adopted and the ob-
ject to be attained, that some objectives ... are not
legitimate state interests, and, even when a law is
justified by an ostensibly legitimate purpose, that
[t]he State may not rely on a classification whose
relationship to an asserted goal is so attenuated as
to render the distinction arbitrary or irrational.
Romer, 517 U.S. at 632, 116 S.Ct. 1620; City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S.
432, 44647, 105 S.Ct. 3249, 87 L.Ed.2d 313
(1985).
At the most basic level, by requiring that clas-
sifications be justified by an independent and le-
gitimate purpose, the Equal Protection Clause
prohibits classifications from being drawn for
the purpose of disadvantaging the group
burdened by the law. Romer, 517 U.S. at 633, 116
S.Ct. 1620 (emphasis supplied); see also Windsor,
133 S.Ct. at 2693; City of Cleburne, Tex., 473 U.S.
at 450, 105 S.Ct. 3249; U.S. Dep't of Agriculture v.
Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37
L.Ed.2d 782 (1973). This Court concluded by not-
ing that in Bassett, 951 F.Supp.2d at 96871, the
court held that same-sex couples demonstrated a
likelihood of success on the merits of their equal
protection claim regarding a Michigan law prohibit-
ing same-sex partners from receiving public em-
ployee benefits where [t]he historical background
and legislative history of the Act demonstrate that it
was motivated by animus against gay men and les-
bians. The Court further determined that a review
of the historical background and legislative history
of the laws at issue and the evidentiary record es-
tablished conclusively that the requested relief must
also be granted to Plaintiffs on the basis of the
Equal Protection Clause. Obergefell, 962
F.Supp.2d at 993.
*16 Again, the Court's prior analysis controls,
and Ohio's marriage recognition bans also fail ra-
tional basis review.
3. Potential State Interests
This Court has already considered and rejec-
ted as illegitimate and irrational any purported
State interests justifying the marriage recognition
bans. Obergefell, 962 F.Supp.2d at 99395. Based
on this controlling analysis, the government cer-
tainly cannot meet its burden under heightened
scrutiny to demonstrate that the marriage recogni-
tion ban is necessary to further important State in-
terests. All advanced State interests are as inad-
equate now as they were several months ago to jus-
tify the discrimination caused by the marriage re-
cognition ban and the ban's particularly harmful im-
pact on Ohio-born children.
Of particular relevance to this case, in Oberge-
fell this Court analyzed and roundly rejected any
claimed government justifications based on a pref-
erence for procreation or childrearing by hetero-
sexual couples. 962 F.Supp.2d at 994. This Court
further concluded that the overwhelming scientific
consensus, based on decades of peerreviewed sci-
entific research, shows unequivocally that chil-
dren raised by same-sex couples are just as well
adjusted as those raised by heterosexual couples.
Id. at n. 20. In fact, the U.S. Supreme Court in
Windsor (and more recently, numerous lower courts
around the nation) similarly rejected a purported
government interest in establishing a preference for
or encouraging parenting by heterosexual couples
as a justification for denying marital rights to same-
sex couples and their families. The Supreme Court
was offered the same false conjectures about child
welfare this Court rejected in Obergefell, and the
Supreme Court found those arguments so insub-
stantial that it did not deign to acknowledge them.
Instead, the Supreme Court concluded:
DOMA instructs all federal officials, and indeed
all persons with whom same-sex couples interact,
Page 17
--- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio)
(Cite as: 2014 WL 1418395 (S.D.Ohio))
including their own children, that their marriage
is less worthy than the marriages of others. The
federal statute is invalid, for no legitimate pur-
pose overcomes the purpose and effect to dispar-
age and to injure those whom the State, by its
marriage laws, sought to protect in personhood
and dignity. By seeking to displace this protec-
tion and treating those persons as living in mar-
riages less respected than others [the federal gov-
ernment's non-recognition of marriages is uncon-
stitutional].
Windsor, 133 S.Ct. at 2696 (emphasis sup-
plied). All of the federal trial court decisions since
Windsor have included similar conclusions on this
issue, including that child welfare concerns weigh
exclusively in favor of recognizing the marital
rights of same-sex couples.
FN22
In sum, under Supreme Court jurisprudence,
and as confirmed in numerous recent trial court de-
cisions, states do not have any governmental in-
terest sufficient to justify their refusal to recognize
lawful out-of-state marriages between same-sex
couples.
FN23
D. Full Faith and Credit
*17 Because this Court has found that Ohio's
marriage recognition bans are constitutionally in-
valid on their face and unenforceable, Defendants
no longer have a basis on which to argue that re-
cognizing same-sex marriages on out-of-state adop-
tion decrees violates Ohio public policy, and thus it
is unnecessary to reach Plaintiffs' arguments based
on the Full Faith and Credit Clause. However, the
Court determines that, as expressed infra in endnote
i, Plaintiffs have also demonstrated a compelling
basis on which to find, and the Court does so find,
that Plaintiffs Vitale and Talmas have a right to
full faith and credit for their New York adoption
decree here in Ohio.
FN24
E. Irreparable Harm
[12] Finally, Plaintiffs have easily met their
burden to demonstrate they are suffering irreparable
harm from Defendants' violation of their rights to
due process, equal protection, and full faith and
credit for their adoption decrees. Birth certificates
are vitally important documents. As outlined above,
Ohio's refusal to recognize Plaintiffs' and other
same-sex couples' valid marriages imposes numer-
ous indignities, legal disabilities, and psychological
harms. Further, the State violates Plaintiffs' and
other same-sex couples' fundamental constitutional
rights to marry, to remain married, and to function
as a family.
Constitutional violations are routinely recog-
nized as causing irreparable harm unless they are
promptly remedied. Obergefell, 962 F.Supp.2d at
996; see also Elrod v. Burns, 427 U.S. 347, 373, 96
S.Ct. 2673, 49 L.Ed.2d 547 (1976) (loss of constitu-
tional freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury);
Saenz v. Roe, 526 U.S. 489, 498, 119 S.Ct. 1518,
143 L.Ed.2d 689 (1999) (violation of the right to
travel interstate constitutes irreparable injury).
Without a permanent injunction and declaratory re-
lief, the affected same-sex couples and their chil-
dren would have to continue to navigate life
without the birth certificates that pave the way
through numerous transactions, large and small.
They would needlessly suffer harmful delays, bur-
eaucratic complications, increased costs, embar-
rassment, invasions of privacy, and disrespect.
Same-sex couples' legal status as parents will be
open to question, including in moments of crisis
when time and energy cannot be spared to over-
come the extra hurdles Ohio's discrimination erects.
FN25
The marital status of the couples will like-
wise be open to question, depriving these families
of the far-reaching security, protections, and dignity
that come with recognition of their marriages.
Plaintiffs and other affected same-sex couples
require injunctive and declaratory relief to lift the
stigma imposed by Defendants' disrespect for their
spousal and parental statuses. Imposition of these
burdens on same-sex couples serves no legitimate
public interest that could counteract the severe and
irreparable harm imposed by the marriage recogni-
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(Cite as: 2014 WL 1418395 (S.D.Ohio))
tion bans.
Plaintiffs have therefore more than adequately
demonstrated their entitlement to declaratory and
injunctive relief.
FN26
IV. CONCLUSION
*18 Accordingly, based on the foregoing,
Plaintiffs' Motion for Declaratory Judgment and
Permanent Injunction (Doc. 18) is hereby GRAN-
TED. Specifically:
1. The Court finds that those portions of Ohio
Const. Art. XV, 11, Ohio Rev.Code
3101.01(C), and any other provisions of the Ohio
Revised Code that may be relied on to deny legal
recognition to the marriages of same-sex couples
validly entered in other jurisdictions, violate
rights secured by the Fourteenth Amendment to
the United States Constitution in that same-sex
couples married in jurisdictions where same-sex
marriage is lawful, who seek to have their out-
of-state marriages recognized and accepted as
legal in Ohio and the enjoy the rights, protec-
tions, and benefits of marriage provided to het-
erosexual married couples under Ohio law, are
denied significant liberty interests and funda-
mental rights without due process of law and in
violation of their right to equal protection.
2. Defendants and their officers and agents are
permanently enjoined from (a) enforcing the mar-
riage recognition ban, (b) denying same-sex
couples validly married in other jurisdictions all
the rights, protections, and benefits of marriage
provided under Ohio law, and (c) denying full
faith and credit to decrees of adoption duly ob-
tained by same-sex couples in other jurisdictions.
The Court will separately issue an Order of Per-
manent Injunction to this effect.
3. Defendants shall issue birth certificates to
Plaintiffs for their children listing both same-sex
parents.
IT IS SO ORDERED.
FN27
FN1. The Court's Order today does NOT
require Ohio to authorize the performance
of same-sex marriage in Ohio. Today's rul-
ing merely requires Ohio to recognize val-
id same-sex marriages lawfully performed
in states which do authorize such mar-
riages.
FN2. See, e.g., Kitchen v. Herbert, 961
F.Supp.2d 1181, 1216 (D.Utah 2013)
(permanently enjoining Utah anti-
celebration provisions on due process and
equal protection grounds); Obergefell, 962
F.Supp.2d at 99798 (permanently enjoin-
ing as to plaintiffs enforcement of Ohio
anti-recognition provisions on due process
and equal protection grounds); Bishop v.
United States ex rel. Holder, 962
F.Supp.2d 1252, 129597 (N.D.Okla.2014)
(permanently enjoining Oklahoma's anti-
celebration provisions on equal protection
grounds); Bourke v. Beshear,
F.Supp.2d , , 2014 WL
556729, at *1 (W.D.Ky. Feb. 2, 2014)
(declaring Kentucky's anti-recognition
provisions unconstitutional on equal pro-
tection grounds); Bostic v. Rainey, 970
F.Supp.2d 456, 48384 (E.D.Va.2014)
(finding Virginia's anti-celebration and
anti-recognition laws unconstitutional on
due process and equal protection grounds,
and preliminarily enjoining enforcement);
Lee v. Orr, 2014 WL 683680 (N.D.Ill. Feb.
21, 2014) (declaring Illinois celebration
ban unconstitutional on equal protection
grounds); De Leon v. Perry, 975 F.Supp.2d
632, 63940, 66263 (W.D.Tex.2014)
(preliminarily enjoining Texas anti-
celebration and anti-recognition provisions
on equal protection and due process
grounds); Tanco v. Haslam, F.Supp.2d
, , , 2014 WL 997525, at *6,
*9 (M.D.Tenn. Mar. 14, 2014) (enjoining
enforcement of Tennessee anti-recognition
provisions on equal protection grounds);
Page 19
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(Cite as: 2014 WL 1418395 (S.D.Ohio))
DeBoer v. Snyder, 973 F.Supp.2d 757, 775
(E.D.Mich.2014) (permanently enjoining
Michigan anti-celebration provisions on
equal protection grounds); Baskin v. Bogan
(S.D.Ind. April 10, 2014) (J. Young)
(temporarily enjoining Indiana's marriage
recognition ban).
FN3. See Obergefell, 962 F.Supp.2d at
97475.
FN4. See Doc. 42.
FN5. See Doc. 43.
FN6. See Doc. 44.
FN7. See Doc. 45.
FN8. See Doc. 46.
FN9. The concept of the right to remain
married as a liberty interest protected by
the Due Process Clause is advanced by
Professor Steve Sanders in his article The
Constitutional Right to (Keep Your)
SameSex Marriage, 110 MICH. L.REV.
1421 (2011).
FN10. See also Turner v. Safley, 482 U.S.
78, 95, 107 S.Ct. 2254, 96 L.Ed.2d 64
(1987) (The decision to marry is a funda-
mental right); Moore v. East Cleveland,
431 U.S. 494, 503, 97 S.Ct. 1932, 52
L.Ed.2d 531 (1977) ([T]he Constitution
protects the sanctity of the family precisely
because the institution of the family is
deeply rooted in this Nation's history and
tradition); Griswold v. Connecticut, 381
U.S. 479, 485486, 85 S.Ct. 1678, 14
L.Ed.2d 510 (1965) (intrusions into the
sacred precincts of marital bedrooms of-
fend rights older than the Bill of Rights);
id. at 495496, 85 S.Ct. 1678 (Goldberg,
J., concurring) (the law in question
disrupt[ed] the traditional relation of the
familya relation as old and as funda-
mental as our entire civilization); see gen-
erally Washington v. Glucksberg, 521 U.S.
702, 727 n. 19, 117 S.Ct. 2258, 138
L.Ed.2d 772 (1997) (citing cases).
FN11. See also Wilson v. Ake, 354
F.Supp.2d 1298, 130607 (M.D.Fla.2005)
(No federal court has recognized that [due
process] ... includes the right to marry a
person of the same sex) (internal citation
omitted); Conaway v. Deane, 401 Md. 219,
932 A.2d 571, 628 (Md.App.2007)
([V]irtually every court to have con-
sidered the issue has held that same-sex
marriage is not constitutionally protected
as fundamental in either their state or the
Nation as a whole); Hernandez v. Robles,
7 N.Y.3d 338, 821 N.Y.S.2d 770, 855
N.E.2d 1, 9 (2006) (The right to marry is
unquestionably a fundamental right ... The
right to marry someone of the same sex,
however, is not deeply rooted, it has not
even been asserted until relatively recent
times).
FN12. See, e.g., Youngberg v. Romeo, 457
U.S. 307, 31516, 102 S.Ct. 2452, 73
L.Ed.2d 28 (1982) (an individual involun-
tarily committed to a custodial facility be-
cause of a disability retained liberty in-
terests including a right to freedom from
bodily restraint, thus departing from a
longstanding historical tradition in which
people with serious disabilities were not
viewed as enjoying such substantive due
process rights and were routinely subjected
to bodily restraints in institutions); Eisen-
stadt v. Baird, 405 U.S. 438, 92 S.Ct.
1029, 31 L.Ed.2d 349 (1972) (striking
down a ban on distributing contraceptives
to unmarried persons, building on a hold-
ing in Griswold, 381 U.S. at 486, 85 S.Ct.
1678, that states could not prohibit the use
of contraceptives by married persons);
Lawrence, 539 U.S. at 56667, 123 S.Ct.
Page 20
--- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio)
(Cite as: 2014 WL 1418395 (S.D.Ohio))
2472 (lesbian and gay Americans could not
be excluded from the existing fundamental
right to sexual intimacy, even though his-
torically they had often been prohibited
from full enjoyment of that right).
FN13. See Ohio Rev.Code Ann.
3313.672(A)(1) (birth certificate generally
must be presented at time of initial entry
into public or nonpublic school).
FN14. See Social Security Administration,
Social Security Numbers for Children, ht-
tp://www.ssa.gov/pubs/EN050023.pdf #
nameddest=adoptiveparents (last visited
Feb. 26, 2014).
FN15. See Sefcik v. Mouyos, 171 Ohio
App.3d 14, 869 N.E.2d 105, 108 (2007)
(noting that a child's birth certificate is
prima facie evidence of parentage for in-
heritance purposes).
FN16. See Minors under Age 16, U.S.
Dept. of State, U.S. Passports & Int'l
Travel, ht-
tp://travel.state.gov/passport/get/minors/mi
nors_834.html (last visited Feb. 26 2014);
New U.S. Birth Certificate Requirement,
U.S. Dept of State, U.S. Passports & Int'l
Travel, http://
travel.state.gov/passport/passport_5401.ht
ml (last visited Feb. 26, 2014) (certified
birth certificates listing full names of ap-
plicant's parents must be submitted with
passport application as evidence of citizen-
ship).
FN17. A suggested worksheet is provided
to the hospital or other birth facility by the
Ohio Department of Health for use by the
birth mother or other informant. A copy of
the worksheet can be found at Ohio De-
partment of Health, ht-
tp://vitalsupport.odh.ohio.gov/gd/gd.aspx?
Page=3&TopicRelationID=5&Content=59
94 (last visited Feb. 28, 2014). The hospit-
al or birth facility then enters the informa-
tion gathered into the IPHIS. Two flow
sheets describing the typical sequence of
steps leading to a birth certificate can be
found at Birth Facility EasyStep Guide
For IPHIS, pages 45, Ohio Department of
Health, http:// vitalsup-
port.odh.ohio.gov/gd/gd.aspx?
Page=3&TopicRelationID=519&Content=
4597 (last visited Feb. 28, 2014).
FN18. Mother's Worksheet for Child's
Birth, available at Ohio Department of
Health, ht-
tp://vitalsupport.odh.ohio.gov/gd/gd.aspx?
Page=3&TopicRelationID=5&Content=59
94 (last visited February 28, 2014).
FN19. See Ohio Rev.Code 3111.03(A)(1)
([a] man is presumed to be the natural
father of a child, including when [t]he
man and the child's mother are or have
been married to each other, and the child is
born during the marriage or is born within
three hundred days after the marriage is
terminated by death, annulment, divorce,
or dissolution or after the man and the
child's mother separate pursuant to a separ-
ation agreement); see also Ohio Rev.Code
3111.95(A) (If a married woman is the
subject of a non-spousal artificial insemin-
ation and if her husband consented to the
artificial insemination, the husband shall
be treated in law and regarded as the natur-
al father of a child conceived as a result of
the artificial insemination, and a child so
conceived shall be treated in law and re-
garded as the natural child of the hus-
band.); Ohio Rev.Code 3705.08(B)
(All birth certificates shall include a state-
ment setting forth the names of the child's
parents ...).
FN20. See also Pedersen v. Office of Pers.
Mgmt., 881 F.Supp.2d 294, 312
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(Cite as: 2014 WL 1418395 (S.D.Ohio))
(D.Conn.2012) (The Supreme Court's
holding in Lawrence remov[ed] the pre-
cedential underpinnings of the federal case
law supporting the defendants' claim that
gay persons are not a [suspect or] quasi-
suspect class ) (citations omitted); Golin-
ski, 824 F.Supp.2d at 984 ([T]he reason-
ing in [prior circuit court decisions], that
laws discriminating against gay men and
lesbians are not entitled to heightened
scrutiny because homosexual conduct may
be legitimately criminalized, cannot stand
post- Lawrence ).
FN21. See also Mathews v. Lucas, 427
U.S. 495, 505, 96 S.Ct. 2755, 49 L.Ed.2d
651 (1976) (visiting condemnation upon
the child in order to express society's dis-
approval of the parents' liaisons is illogic-
al and unjust ); Weber v. Aetna Cas. Sur.
Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 31
L.Ed.2d 768 (1972) (imposing disabilities
on the illegitimate child is contrary to the
basic concept of our system that legal bur-
dens should bear some relationship to indi-
vidual responsibility or wrongdoing);
Walton v. Hammons, 192 F.3d 590, 599
(6th Cir.1999) (holding state could not
withhold children's food stamp support
based on their parents' non-cooperation in
establishing paternity of their children).
FN22. See, e.g., De Leon, 975 F.Supp.2d
632 (declaring unconstitutional Texas bans
on same-sex marriage and out-of-state
marriage recognition, and rejecting as irra-
tional purported childrearing and procre-
ation justifications); Bostic, 970 F.Supp.2d
at 478 (declaring unconstitutional Virgin-
ia's marriage ban, which has the effect of
needlessly stigmatizing and humiliating
children who are being raised by same-
sex couples and betrays rather than
serves an interest in child welfare);
Bourke, F.Supp.2d at , 2014 WL
556729 at *8 (rejecting purported govern-
ment interest in withholding marriage re-
cognition to advance procreation and chil-
drearing goals, and holding Kentucky's
marriage recognition ban, similar to
Ohio's, unconstitutional); Bishop, 962
F.Supp.2d at 129096 (rejecting purported
government interests in responsible procre-
ation and childrearing as justifications for
Oklahoma's same-sex marriage ban, which
was held unconstitutional); Kitchen, 961
F.Supp.2d at 121114 (declaring Utah's
marriage ban unconstitutional and finding
that same-sex couples' children are also
worthy of the State's protection, yet the
marriage ban harms them for the same
reasons that the Supreme Court found that
DOMA harmed the children of same-sex
couples); Griego v. Oliver, N.M.
, 316 P.3d 865, 872 (2013) (rejecting
responsible procreation and childrearing
rationales to justify New Mexico's mar-
riage ban, and declaring ban in violation of
state constitution).
FN23. Again, the Court's Order today does
NOT require Ohio to authorize the per-
formance of same-sex marriage in Ohio.
Today's ruling merely requires Ohio to re-
cognize valid same-sex marriages lawfully
performed in states which authorize such
marriages.
FN24. Article IV, 1 of the U.S. Constitu-
tion provides that Full Faith and Credit
shall be given in each State to the public
Acts, Records, and judicial Proceedings of
every other State. In incorporating this
clause into our Constitution, the Framers
foresaw that there would be a perpetual
change and interchange of citizens
between the several states. McElmoyle,
for Use of Bailey v. Cohen, 38 U.S. 312,
315, 13 Pet. 312, 10 L.Ed. 177 (1839). The
Supreme Court has explained that the
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(Cite as: 2014 WL 1418395 (S.D.Ohio))
animating purpose of the full faith and
credit command is:
to alter the status of the several states as
independent foreign sovereignties, each
free to ignore obligations created under
the laws or by the judicial proceedings
of the others, and to make them integral
parts of a single nation throughout which
a remedy upon a just obligation might be
demanded as of right, irrespective of the
state of its origin.
Baker v. Gen. Motors Corp., 522 U.S.
222, 232, 118 S.Ct. 657, 139 L.Ed.2d
580 (1998) (quoting Milwaukee Cnty. v.
M.E., White Co., 296 U.S. 268, 277, 56
S.Ct. 229, 80 L.Ed. 220 (1935)).
In the context of judgments, the full faith
and credit obligation is exacting, giving
nationwide force to a final judgment
rendered in a state by a court of compet-
ent jurisdiction. Baker, 522 U.S. at 233,
118 S.Ct. 657. Proper full faith and cred-
it analysis distinguishes between public
acts, which may be subject to public
policy exceptions to full faith and credit,
and judicial proceedings, which de-
cidedly are not subject to any public
policy exception to the mandate of full
faith and credit See id. at 232, 118 S.Ct.
657 (Our precedent differentiates the
credit owed to laws (legislative measures
and common law) and to judgments);
Magnolia Petroleum Co. v. Hunt, 320
U.S. 430, 437, 64 S.Ct. 208, 88 L.Ed.
149 (1943) (The full faith and credit
clause and the Act of Congress imple-
menting it have, for most purposes,
placed a judgment on a different footing
from a statute of one state, judicial re-
cognition of which is sought in anoth-
er).
The Supreme Court has thus rejected any
notion that a state may disregard the full
faith and credit obligation simply be-
cause the state finds the policy behind
the out-of-state judgment contrary to is
own public policies. According to the
Court, our decisions support no roving
public policy exception to the full faith
and credit due judgments. Baker, 522
U.S. at 233, 118 S.Ct. 657; see also Es-
tin v. Estin, 334 U.S. 541, 546, 68 S.Ct.
1213, 92 L.Ed. 1561 (1948) (Full Faith
and Credit Clause ordered submission
... even to hostile policies reflected in the
judgment of another State, because the
practical operation of the federal system,
which the Constitution designed, deman-
ded it); Williams v. North Carolina, 317
U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279
(1942) (requiring North Carolina to re-
cognize change in marital status effected
by Nevada divorce decree contrary to
laws of North Carolina).
Consistent with the guarantee of full
faith and credit, Defendant Himes's De-
partment of Health is mandated under a
provision of the Vital Statistics section
of the Ohio Code to issue an amended
birth certificate upon receipt of an adop-
tion decree issued by the court of anoth-
er state. Pursuant to Ohio Revised Code
3705.12(A) and (B), upon receipt of a
decree of adoption of an Ohio-born
child, issued with due process by the
court of another state, the department of
health shall issue, unless otherwise re-
quested by the adoptive parents, a new
birth record using the child's adopted
name and the names of and data con-
cerning the adoptive parents.... This
statute does not leave discretion in De-
fendant Himes's hands to reject duly is-
sued out-of-state adoption decrees based
on whether the adoption could have been
obtained under Ohio law.
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(Cite as: 2014 WL 1418395 (S.D.Ohio))
Indeed, as already discussed, before the
tenure of prior-Defendant Wymyslo,
Ohio issued amended birth certificates
based on the out-of-state adoption de-
crees of same-sex parents, notwithstand-
ing Ohio's purported policy against ad-
options by unmarried couples within the
State. Only recently has the Department
of Health taken the position that Ohio
Revised Code. 3107.18, a separate pro-
vision of the Adoption section of the
Code, frees it of its obligation to issue a
corrected birth certificate upon receipt of
another state's duly issued judgment of
adoption decreeing a same-sex couple as
adoptive parents. (Doc. 46 at 45). Ac-
cording to Defendant Himes, that provi-
sion requires the Department of Health
to refuse recognition to out-of-state ad-
option decrees of same-sex parents,
whose marriages are disrespected under
Ohio law, because giving effect to such
a decree would violate the public policy
of this state. Ohio Revised Code
3107.18.
This backward evolution in Ohio, from
granting accurate birth certificates to ad-
optive same-sex parents and their chil-
dren, to the current administration's re-
fusal to do so, is yet another manifesta-
tion of the irrational animus motivating
Defendants' discriminatory treatment of
lesbian and gay families. The application
of section 3107.18's public policy ex-
ception to the adoption decree of another
state is contrary to Ohio's consistent re-
cognition of the duly-issued adoption de-
crees of state courts of competent juris-
diction nationwide. See, e.g., Matter of
Bosworth, No. 86AP903, 1987 WL
14234, at *2 (Ohio Ct.App. 10th Dist.
July 16, 1987) (recognizing Florida ad-
option decree because, if due process
was followed by another state's court in
issuing an adoption decree, an Ohio
court is mandated to give full faith and
credit to that state's decree); Matter of
Swanson, No. 90CA23, 1991 WL
76457 (Ohio Ct.App. 5th Dist. May 3,
1991) (recognizing New York adoption
decree over objection of Ohio biological
parents). Defendant Himes impermiss-
ibly injects a roving public policy ex-
ception to the full faith and credit due
judgments, precisely what the Supreme
Court has made clear the Full Faith and
Credit Clause prohibits.
The duty to effectuate this command has
commonly fallen on state courts in ac-
tions to enforce judgments obtained in
out-of-state litigation, which is why
many Supreme Court cases identify state
courts as violators of the state's full faith
and credit obligations. See Adar v.
Smith, 639 F.3d 146, 171 (5th Cir.2011)
(Weiner, J., dissenting) (citing Guinness
PLC v. Ward, 955 F.2d 875, 890 (4th
Cir.1992) ([U]nder the common law,
the procedure to enforce the judgment of
one jurisdiction in another required the
filing of a new suit in the second juris-
diction to enforce the judgment of the
first)). However, this historical fact
does not dictate that the command is dir-
ected only to state courts. For example,
now all but two or three of the fifty
states have enacted some version of the
Revised Uniform Enforcement of For-
eign Judgments Act, which authorizes
nonjudicial officers to register out-
of-state judgments, thereby entrusting to
them their states' obligations under the
[Full Faith and Credit] Clause. Adar,
639 F.3d at 171 (Weiner, J., dissenting)
(citation omitted). Ohio's vital statistics
statutes likewise transfer to state execut-
ive officials the responsibility to receive
and recognize out-of-state judgments of
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(Cite as: 2014 WL 1418395 (S.D.Ohio))
adoption and to issue amended Ohio
birth certificates based on those judg-
ments. See Ohio Revised Code
3705.12(A) and (B).
The Fifth Circuit stands alone in holding
that federal claims to enforce rights con-
ferred by the Full Faith and Credit
Clause are unavailable under 1983
against nonjudicial state officials. Adar,
639 F.3d at 153. Given that 1983 cre-
ates a remedy for those denied rights,
privileges, or immunities secured by the
Constitution and laws, 42 U.S.C.
1983, and that the Supreme Court has re-
peatedly held that 1983 is a remedial
statute that must be applied expansively
to assure the protection of constitutional
rights (see Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 70001, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978) ( 1983 is to be
broadly construed, against all forms of
official violation[s] of federally protec-
ted rights); Golden State Transit Corp.
v. City of Los Angeles, 493 U.S. 103,
105, 110 S.Ct. 444, 107 L.Ed.2d 420
(1989) ( 1983's coverage is to be
broadly construed); Wayne v. Vill. of
Sebring, 36 F.3d 517, 528 (6th Cir.1994)
(same)), other circuits have unremark-
ably entertained such claims. See Rosin
v. Monken, 599 F.3d 574, 575 (7th
Cir.2010) (adjudicating full faith and
credit claim against state actors on the
merits in 1983 action); United Farm
Workers v. Ariz. Agric. Emp't Relations
Bd., 669 F.2d 1249, 1257 (9th Cir.1982)
(same); Lamb Enters., Inc. v. Kiroff, 549
F.2d 1052, 1059 (6th Cir.1977)
(propriety of 1983 claim in federal
court to enforce full faith and credit ob-
ligation against state judge not ques-
tioned, but abstention deemed warran-
ted).
The Supreme Court has employed a
three-part test, articulated in Golden
State Transit Corp., 493 U.S. at 106, 110
S.Ct. 444, to determine whether a consti-
tutional provision creates a right action-
able under 1983: whether the provision
1) creates obligations binding on the
governmental unit, 2) that are suffi-
ciently concrete and specific as to be ju-
dicially enforced, and 3) were intended
to benefit the putative plaintiff. Den-
nis v. Higgins, 498 U.S. 439, 449, 111
S.Ct. 865, 112 L.Ed.2d 969 (1991)
(internal quotations and citations omit-
ted). The Full Faith and Credit Clause
explicitly creates obligations binding on
the states, is concrete and judicially re-
cognizable, and was intended to protect
the rights of individuals to require re-
spect across state lines for judgments in
their favor. See Thomas v. Wash. Gas
Light Co., 448 U.S. 261, 278 n. 23, 100
S.Ct. 2647, 65 L.Ed.2d 757 (1980)
([T]he purpose of [the Clause] was to
preserve rights acquired or confirmed
under the ... judicial proceedings of one
state by requiring recognition of their
validity in other states ....) (quoting
Pac. Emp'rs Ins. Co. v. Indus. Accident
Comm'n of Cal., 306 U.S. 493, 501, 59
S.Ct. 629, 83 L.Ed. 940 (1939)); Magno-
lia Petroleum Co., 320 U.S. at 439, 64
S.Ct. 208 (referring to the Clause as pre-
serving judicially established rights);
see also Adar, 639 F.3d at 176 (Weiner,
J., dissenting) (For all the same reasons
advanced by the Dennis Court in recog-
nizing the private federal right created
by the Commerce Clause ... the [Full
Faith and Credit] Clause indisputably
does confer a constitutional right for
which 1983 provides an appropriate
remedy).
In Finstuen v. Crutcher, 496 F.3d 1139
Page 25
--- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio)
(Cite as: 2014 WL 1418395 (S.D.Ohio))
(10th Cir.2007), a 1983 action, the
Tenth Circuit held that Oklahoma was
required to issue an amended birth certi-
ficate listing as parents both members of
a California same-sex couple that had
legally adopted a child born in Ok-
lahoma, notwithstanding Oklahoma's
prohibition against such adoptions with-
in the state. Id. at 114142. Oklahoma,
like Ohio, had a statute providing for is-
suance of amended birth certificates for
children adopted in other states' courts.
The Tenth Circuit ruled that the Full
Faith and Credit Clause required Ok-
lahoma to apply its own law to enforce
[those] adoption order[s] in an
even-handed manner. Id. at 1154
(citing Baker, 522 U.S. at 235, 118 S.Ct.
657). The Tenth Circuit concluded: We
hold today that final adoption orders and
decrees are judgments that are entitled to
recognition by all other states under the
Full Faith and Credit Clause. Id. at
1156. Oklahoma's refusal to recognize
final adoption orders of other states that
permit adoption by same-sex couples
was therefore unconstitutional. Id.
The principles and precedent outlined
above provide a compelling basis to con-
clude that the Full Faith and Credit
Clause also requires full recognition of
Plaintiffs Vitale's and Talmas's New
York adoption decree, and this Court so
holds.
(As in Obergefell, this Court again ac-
knowledges the continuing pendency of
Section 2 of the discredited federal De-
fense of Marriage Act (DOMA),
which was not before the Supreme Court
in Windsor, and wherein Congress has
sought to invoke its power under the Full
Faith and Credit Clause to establish that
[n]o State ... shall be required to give
effect to any public act, record, or judi-
cial proceeding of any other State ... re-
specting a relationship between persons
of the same sex that is treated as a mar-
riage under the laws of such other State,
28 U.S.C. 1738C. However, as in
Obergefell, although Section 2 of
DOMA is not specifically before the
Court, the implications of today's ruling
speak for themselves.)
FN25. For example, families can be barred
in hospitals from their loved ones' bedsides
due to a lack of legally-recognized rela-
tionship status. (Id. Doc. 173 at 23).
And, although Ohio same-sex couples may
obtain co-custody agreements for their
children, such an agreement does not ...
create the full rights and responsibilities of
a legally recognized child-parent relation-
ship. (Id. at 19). Moreover, inheritance
is governed in part by parentage (Id. at
21, 24, 30), and children are entitled to
bring wrongful death actions (Doc. 177 at
37). Indeed, [s]ame-sex married couples
and their children live in an Ohio that auto-
matically denies most state and federal
rights, benefits and privileges to them. (
Id. at 103).
FN26. However, the Court agrees with De-
fendants that Plaintiff Adoption S.T.A.R.
lacks standing to pursue its claims. Rather
than relying on its own rights, Adoption
S.T.A.R. purports to bring this action on
behalf of its clients who seek to complete
adoptions involving Ohio-born children
and seeks relief for any ... same-sex
couples married in [other] jurisdiction ...
who become clients of Plaintiff Adoption
S.T.A.R.... (Doc. 1 at 17). To establish
Article III standing, a plaintiff must show
that an injury is concrete, particularized,
and actual or imminent; fairly traceable to
the challenged action; and redressable by a
Page 26
--- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio)
(Cite as: 2014 WL 1418395 (S.D.Ohio))
favorable ruling. Clapper v. Amnesty In-
tern. USA, U.S. , 133 S.Ct. 1138,
1147, 185 L.Ed.2d 264 (2013) (internal
quotations omitted). Adoption S.T.A.R.
bears the burden of proving each element
of standing in the same way as any other
matter on which the plaintiff bears the bur-
den of proof, i.e., with the manner and de-
gree of evidence required at successive
stages of the litigation. Lujan v. Defend-
ers of Wildlife, 504 U.S. 555, 561, 112
S.Ct. 2130, 119 L.Ed.2d 351 (1992).
[A] party generally must assert his own
legal rights and interests, and cannot rest
his claim to relief on the legal rights or
interests of third parties. Kowalski v.
Tesmer, 543 U.S. 125, 129, 125 S.Ct.
564, 160 L.Ed.2d 519 (2004) (internal
quotations omitted). If a party can
demonstrate injury, however, that party
may pursue the rights of others when it
can establish that (1) the party asserting
the right has a close relationship with
the person who possesses the right and
(2) there is a hindrance to the pos-
sessor's ability to protect his own in-
terests. Boland v. Holder, 682 F.3d
531, 537 (6th Cir.2012) (internal quota-
tions omitted). The concept of third-
party standing is typically disfavored.
Kowalski, 543 U.S. at 130, 125 S.Ct.
564; see also Singleton v. Wulff, 428
U.S. 106, 11314, 96 S.Ct. 2868, 49
L.Ed.2d 826 (1976) (outlining reasons
why [f]ederal courts must hesitate be-
fore resolving a controversy, even one
within their constitutional power to re-
solve, on the basis of the rights of third
persons not parties to the litigation).
Here, Adoption S.T.A.R. fails to satisfy
its burden of establishing standing be-
cause it fails to satisfy the hindrance re-
quirement. Adoption S.T.A.R. must
demonstrate that its clients face some
obstacle in litigating their rights them-
selves. Smith v. Jefferson Cnty. Bd. of
Sch. Comm'rs, 641 F.3d 197, 209 (6th
Cir.2011). In analyzing this question, the
United States Supreme Court has gener-
ally looked for daunting barriers or
insurmountable procedural obstacles
to support a finding of hindrance. See
Miller v. Albright, 523 U.S. 420,
44950, 118 S.Ct. 1428, 140 L.Ed.2d
575 (1998) (O'Connor, J., concurring,
Kennedy, J., joining) (A hindrance sig-
nals that the rightholder did not simply
decline to bring the claim on his own be-
half, but could not in fact do so). Adop-
tion S.T.A.R. has not shown that same-
sex couples married in other jurisdic-
tions are hindered from litigating their
own rights, and the participation of the
other Plaintiffs in this lawsuit demon-
strates that such parties are capable of
doing so. Moreover, because birth certi-
ficates can be amended and reissued,
there are no significant time restrictions
on the ability of potential third parties to
bring their own actions. Under these cir-
cumstances, where the time constraints
and logistical and emotional burdens
that prevented injured third parties from
vindicating their rights in Obergefelldo
not exist, there is no basis for departing
from the ordinary rule that one may not
claim standing ... to vindicate the consti-
tutional rights of some third party. Bar-
rows v. Jackson, 346 U.S. 249, 255, 73
S.Ct. 1031, 97 L.Ed. 1586 (1953).
Consequently, the Court finds that
Plaintiff Adoption S.T.A.R. lacks stand-
ing to pursue its claims. The Court also
notes, however, that given today's ruling,
the question of Adoption S.T.A.R.'s
standing is ultimately of no practical ef-
fect.
Page 27
--- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio)
(Cite as: 2014 WL 1418395 (S.D.Ohio))
Happy Adoption Day
Words and Music by John McCulcheon
1992 John McCutcheon/Appalsongs
(ASCAP)
Oh who would have guessed, who could
have seen
Who could have possibly known
All these roads we have traveled, the
places we've been
Would have finally taken us home.
So here's to you, three cheers to you
Let's shout it, Hip, hip horray!
For out of a world so tattered and torn,
You came to our house on that wonder-
ful morn
And all of a sudden this family was born
Oh, happy Adoption Day!
There are those who think families hap-
pen by chance
A mystery their whole life through
But we had a voice and we had a choice
We were working and waiting for you.
ful morn
No matter the time and no matter the age
No matter how you came to be
No matter the skin, we are all of us kin
We are all of us one family.
ful morn
FN27. The Court STAYS enforcement of
this Order and the Permanent Injunction
until the parties have briefed whether or
not this Court should fully stay its Orders
until completion of appeal to the United
States Court of Appeals for the Sixth Cir-
cuit and the United States Supreme Court.
The Court is inclined to stay its finding of
facial unconstitutionality but not to stay
the Orders as to the as-applied claims of
the four couples who are Plaintiffs because
they have demonstrated that a stay will
harm them individually due to the immin-
ent births of their children and other time-
sensitive concerns. The Court inclines to-
ward a finding that the issuance of correct
birth certificates for Plaintiffs' children,
due in June or earlier, should not be
stayed. The Court is further inclined to
conclude that the Defendants will not be
harmed by compliance with the require-
ments of the United States Constitution.
Nevertheless, Plaintiffs shall file today
their memorandum contra Defendants' oral
motion to stay, and Defendants shall file a
Page 28
--- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio)
(Cite as: 2014 WL 1418395 (S.D.Ohio))
reply memorandum before 3:00 p.m. to-
morrow. The Court shall then rule expedi-
tiously.
S.D.Ohio,2014.
Henry v. Himes
--- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio)
END OF DOCUMENT
Page 29
--- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio)
(Cite as: 2014 WL 1418395 (S.D.Ohio))
United States Court of Appeals,
Tenth Circuit.
Derek KITCHEN; Moudi Sbeity; Karen Archer;
Kate Call; Laurie Wood; Kody Partridge, individu-
ally, PlaintiffsAppellees,
v.
Gary R. HERBERT, in his official capacity as Gov-
ernor of Utah; Sean Reyes, in his official capacity
as Attorney General of Utah, Defend-
antsAppellants,
and
Sherrie Swensen, in her official capacity as Clerk
of Salt Lake County, Defendant.
No. 134178.
June 25, 2014.
Background: Three gay and lesbian couples who
either desired to be married in Utah or, having
already married elsewhere, wished to have their
marriage recognized in Utah, brought action against
Utah's Governor, Attorneys General, and county
clerk, seeking to challenge amendment to Utah's
Constitution, as well as two statutes, that prohibited
same-sex marriage as violative of same-sex
couples' due process and equal protection rights un-
der Fourteenth Amendment. The United States Dis-
trict Court for the District of Utah, Robert J. Shelby
, J., granted summary judgment for plaintiffs. The
Governor and Attorney General appealed.
Holdings: The Court of Appeals, Lucero, Circuit
Judge, held that:
(1) two same sex couples had standing to bring ac-
tion against county clerk;
(2) Governor and Attorney General had requisite
nexus with challenged provisions to have standing
to appeal;
(3) challenge presented substantial federal question;
(4) same-sex couples had fundamental right to
marry under doctrine of substantive due process;
(5) Utah's interest in fostering biological reproduc-
tion within marriages did not justify prohibition
against same-sex marriage;
(6) Utah's interest in promoting childbearing and
optimal childrearing did not justify prohibition
against same-sex marriage;
(7) Utah's interest in encouraging gendered parent-
ing styles did not justify prohibition against same-
sex marriage; and
(8) concerns that some substantial degree of discord
would follow state recognition of same-sex mar-
riage were insufficient to justify prohibition against
same-sex marriage.
Affirmed.
Kelly, Circuit Judge, filed opinion concurring
in part and dissenting in part.
West Headnotes
92VI(A) Persons Entitled to Raise Constitu-
tional Questions; Standing
92VI(A)3 Particular Questions or
Grounds of Attack in General
92k704 k. Family law; marriage. Most
Cited Cases
Two gay and lesbian couples had standing to
bring action against a county clerk, challenging an
amendment to Utah's Constitution, as well as two
statutes, that prohibited same-sex marriage, after
the couples were denied a marriage license by a
county clerk; couples claimed financial injuries
flowing from denial of marriage license, county
clerks were responsible for issuing marriage li-
censes and recording marriage certificates, and the
couples' injuries would be cured by injunction pro-
hibiting enforcement of the amendment and stat-
utes. Wests U.C.A. Const. Art. 1 29; West's
U.C.A. 3012(5), 3014.1, 3017(1),
Page 1
--- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah))
(Cite as: 2014 WL 2868044 (C.A.10 (Utah)))
30112(1).
[2] Federal Civil Procedure 170A 103.2
170AII Parties
170AII(A) In General
170Ak103.1 Standing in General
170Ak103.2 k. In general; injury or in-
terest. Most Cited Cases
Federal Civil Procedure 170A 103.3
170AII Parties
170AII(A) In General
170Ak103.1 Standing in General
170Ak103.3 k. Causation; redressabil-
ity. Most Cited Cases
To possess Article III standing, a plaintiff must
establish: (1) that he or she has suffered an injury in
fact; (2) that the injury is fairly traceable to the
challenged action of the defendant; and (3) that it is
likely that the injury will be redressed by a favor-
able decision. U.S.C.A. Const. Art. 3, 1 et seq.
[3] Officers and Public Employees 283 119
283 Officers and Public Employees
283III Rights, Powers, Duties, and Liabilities
283k119 k. Actions by or against officers and
employees. Most Cited Cases
Plaintiffs suing public officials can satisfy the
causation and redressability requirements of Article
III standing by demonstrating a meaningful nexus
between the defendant and the asserted injury.
U.S.C.A. Const. Art. 3, 1 et seq.
The causation element of Article III standing
for claims asserted against public officials requires
the named defendants to possess authority to en-
force the complained-of provision. U.S.C.A. Const.
Art. 3, 1 et seq.
The redressability prong of Article III standing
for claims asserted against public officials is not
met when a plaintiff seeks relief against a defendant
with no power to enforce a challenged statute.
U.S.C.A. Const. Art. 3, 1 et seq.
170B Federal Courts
170BV Suits Against States; Eleventh Amend-
ment and Sovereign Immunity
170Bk2372 Exceptions to Immunity
170Bk2377 k. Suits for injunctive or other
prospective or equitable relief; Ex parte Young doc-
trine. Most Cited Cases
170B Federal Courts
170BV Suits Against States; Eleventh Amend-
ment and Sovereign Immunity
170Bk2379 What Are Suits Against States;
Entities and Individuals Entitled to Immunity
170Bk2384 k. Agencies, officers, and
public employees. Most Cited Cases
Under Ex parte Young, a state defendant sued
in his official capacity must have some connection
with the enforcement of a challenged provision; the
officer need not have a special connection to the al-
legedly unconstitutional statute, but need only have
a particular duty to enforce the statute in question
and a demonstrated willingness to exercise that
duty.
170B Federal Courts
Page 2
--- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah))
(Cite as: 2014 WL 2868044 (C.A.10 (Utah)))
170BXVII(B) Appellate Jurisdiction and Pro-
cedure in General
170Bk3253 Persons Entitled to Seek Re-
view or Assert Arguments; Parties; Standing
170Bk3255 k. Particular persons. Most
Cited Cases
Actual exercise of supervisory power by Utah's
Governor and Attorney General and their authority
to compel compliance from county clerks and other
officials provided requisite nexus between officials
and constitutional and statutory provisions that pro-
hibited same-sex marriage, and thus officials had
standing to appeal decision of District Court which
found prohibition on issuing same-sex marriage li-
censes unconstitutional, even after county clerk
who refused to issue the licenses declined to appeal
District Court's decision. Wests U.C.A. Const. Art.
1 29; West's U.C.A. 3012(5), 3014.1.
[8] States 360 193
360 States
360VI Actions
360k193 k. Rights of action against state or
state officers. Most Cited Cases
For purposes of rule that plaintiffs suing public
officials must satisfy the causation and redressabil-
ity requirements of standing by demonstrating a
meaningful nexus between the defendant and the
asserted injury, a state official is a proper defendant
for a challenge to a state law if he is responsible for
general supervision of the administration by the
local officials of the challenged provision, even if
the state official is not specifically empowered to
ensure compliance with the statute at issue, if the
official clearly has assisted or currently assists in
giving effect to the law.
170B Federal Courts
170BXVII(I) Dismissal, Withdrawal, or
Abandonment
170Bk3516 k. Want of jurisdiction. Most
Cited Cases
In light of recent doctrinal developments, chal-
lenge to Utah constitutional and statutory prohibi-
tions of same-sex marriage, as violative of same-
sex couples' due process and equal protection
rights, presented substantial federal question, pre-
cluding summary dismissal of appeal. U.S.C.A.
Const.Amend. 14; West's U.C.A. Const. Art. 1,
29; West's U.C.A. 30-1-2, 30-1-4.1.
[10] Courts 106 107
106 Courts
106II Establishment, Organization, and Proced-
ure
106II(K) Opinions
106k107 k. Operation and effect in gener-
al. Most Cited Cases
Summary dismissals do not have the same pre-
cedential value as an opinion of the Supreme Court
after briefing and oral argument on the merits.
[11] Courts 106 107
106 Courts
ure
106II(K) Opinions
106k107 k. Operation and effect in gener-
al. Most Cited Cases
170B Federal Courts
170BXVII(I) Dismissal, Withdrawal, or
Abandonment
170Bk3516 k. Want of jurisdiction. Most
Cited Cases
170B Federal Courts
of Cause
170Bk3765 Affirmance
170Bk3766 k. In general. Most Cited
Page 3
--- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah))
(Cite as: 2014 WL 2868044 (C.A.10 (Utah)))
Cases
Summary affirmances and dismissals for want
of a substantial federal question without doubt re-
ject the specific challenges presented in the state-
ment of jurisdiction, and prevent lower courts from
coming to opposite conclusions on the precise is-
sues presented and necessarily decided by those ac-
tions.
[12] Federal Courts 170B 3616(1)
170B Federal Courts
170BXVII(K) Scope and Extent of Review
170BXVII(K)2 Standard of Review
170Bk3612 Remedial Matters
170Bk3616 Injunction
170Bk3616(1) k. In general.
Most Cited Cases
The Court of Appeals reviews the decision to
grant a permanent injunction for abuse of discre-
tion.
212 Injunction
tions in General
212I(B) Factors Considered in General
212k1032 k. Grounds in general; multiple
factors. Most Cited Cases
To obtain a permanent injunction, a plaintiff
must show: (1) actual success on the merits; (2) ir-
reparable harm unless the injunction is issued; (3)
the threatened injury outweighs the harm that the
injunction may cause the opposing party; and (4)
the injunction, if issued, will not adversely affect
the public interest.
92XXVII Due Process
tions
92k4385 k. Same-sex marriage.
Most Cited Cases
The right to marry, protected as a fundamental
liberty under the doctrine of substantive due pro-
cess, included the right of gay and lesbian couples
to marry and to have their marriages recognized by
the state, despite contention that marriage by defini-
tion meant only a legal union between one man and
one woman as husband and wife. U.S.C.A.
Const.Amend. 14.
92XXVII Due Process
92XXVII(B) Protections Provided and
Deprivations Prohibited in General
92k3868 Rights, Interests, Benefits, or
Privileges Involved in General
92k3873 k. Liberties and liberty in-
terests. Most Cited Cases
All fundamental rights comprised within the
term liberty are protected by the Federal Constitu-
tion from invasion by the States. U.S.C.A.
Const.Amend. 14.
92XXVII Due Process
92XXVII(A) In General
92k3848 Relationship to Other Constitu-
tional Provisions; Incorporation
92k3850 k. Bill of Rights in general.
Most Cited Cases
92XXVII Due Process
92k3892 Substantive Due Process in Gen-
eral
92k3894 k. Rights and interests protec-
Page 4
--- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah))
(Cite as: 2014 WL 2868044 (C.A.10 (Utah)))
ted; fundamental rights. Most Cited Cases
The doctrine of substantive due process ex-
tends protections to fundamental rights in addition
to the specific freedoms protected by the Bill of
Rights. U.S.C.A. Const.Amend. 14.
92XXVII Due Process
eral
To qualify as fundamental right protected un-
der the doctrine of substantive due process, a right
must be objectively, deeply rooted in this Nation's
history and tradition and implicit in the concept of
ordered liberty, such that neither liberty nor justice
would exist if it were sacrificed. U.S.C.A.
Const.Amend. 14.
92XXVII Due Process
tions
Cases
The right to marry is a fundamental liberty,
protected under doctrine of substantive due process.
92XXVII Due Process
The liberty protected by the Fourteenth
Amendment includes the freedom to marry, estab-
lish a home, and bring up children. U.S.C.A.
Const.Amend. 14.
92XXVII Due Process
tions
Cases
The fundamental right to marry, protected un-
der doctrine of substantive due process, necessarily
includes right to remain married. U.S.C.A.
Const.Amend. 14.
92VII(B) Particular Constitutional Rights
92k1073 k. Fourteenth Amendment in
Congress cannot authorize a state to violate the
Fourteenth Amendment. U.S.C.A. Const.Amend.
14.
92XXVII Due Process
92k3901 k. Levels of scrutiny; strict or
heightened scrutiny. Most Cited Cases
The Due Process Clause forbids the govern-
ment to infringe certain fundamental liberty in-
terests at all, no matter what process is provided,
unless the infringement is narrowly tailored to
serve a compelling state interest. U.S.C.A.
Page 5
--- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah))
(Cite as: 2014 WL 2868044 (C.A.10 (Utah)))
Const.Amend. 14.
tiny
If a classification impinges upon the exercise
of a fundamental right, the Equal Protection Clause
requires the State to demonstrate that its classifica-
tion has been precisely tailored to serve a compel-
ling governmental interest. U.S.C.A. Const.Amend.
14.
tiny
A provision subject to equal protection strict
scrutiny cannot rest upon generalized assertion as
to the classification's relevance to its goals.
tiny
The purpose of the narrow tailoring require-
ment of equal protection strict scrutiny review of a
fundamental interest is to ensure that the means
chosen fit the compelling goal so closely that there
is little or no possibility that the motive for the clas-
sification was illegitimate; only the most exact con-
nection between justification and classification sur-
vives. U.S.C.A. Const.Amend. 14.
92XXVII Due Process
tions
Most Cited Cases
Marriage 253 2
253 Marriage
Cited Cases
253 Marriage
Unions
Even assuming that Utah's interest in fostering
biological reproduction within marriages was com-
pelling government interest, Utah's constitutional
and statutory prohibitions against recognition of
same-sex marriage were not narrowly tailored to
promote that interest, and thus prohibitions violated
same-sex couples' fundamental right to marry under
Page 6
--- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah))
(Cite as: 2014 WL 2868044 (C.A.10 (Utah)))
Due Process and Equal Protection clauses; the pro-
hibitions did not differentiate between procreative
and non-procreative couples, and permitted oppos-
ite-sex couples to marry regardless of the pairing's
procreative capacity or inclination to bear children.
U.S.C.A. Const.Amend. 14; 1 U.S.C.A. 7; West's
U.C.A. Const. Art. 1, 29; West's U.C.A.
30-1-2, 30-1-4.1.
tiny
92XXVII Due Process
eral
State may not impinge upon exercise of funda-
mental right, protected by substantive due process
or equal protection, as to some, but not all, of the
individuals who share a characteristic urged to be
relevant. U.S.C.A. Const.Amend. 14.
al
ation
92k3041 k. Similarly situated per-
sons; like circumstances. Most Cited Cases
The Equal Protection Clause is essentially a
direction that all persons similarly situated should
be treated alike. U.S.C.A. Const.Amend. 14.
92XXVII Due Process
tions
Most Cited Cases
Marriage 253 2
253 Marriage
Cited Cases
253 Marriage
Unions
Even assuming that Utah's interest in promot-
ing childbearing and optimal childrearing was a
compelling government interest, Utah's constitu-
tional and statutory prohibitions against the recog-
nition of same-sex marriage were not causally con-
nected to that interest, and thus the prohibitions vi-
olated same-sex couples' fundamental right to
marry under the Due Process and Equal Protection
clauses; it was wholly illogical to believe that state
Page 7
--- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah))
(Cite as: 2014 WL 2868044 (C.A.10 (Utah)))
recognition of the love and commitment between
same-sex couples would alter the most intimate and
personal decisions of opposite-sex couples.
30-1-2, 30-1-4.1.
92XX Separation of Powers
92XX(C) Judicial Powers and Functions
92XX(C)2 Encroachment on Legislature
92k2479 Determination of Facts
Cases
Reasonableness
In some instances, courts must accord substan-
tial deference to the predictive judgments of legis-
lative authorities, but even under more relaxed
forms of equal protection scrutiny, a challenged
classification must find some footing in the realities
of the subject addressed by the legislation based on
a reasonably conceivable state of facts. U.S.C.A.
Const.Amend. 14.
Marriage 253 2
253 Marriage
Cited Cases
253 Marriage
Unions
Even assuming that Utah's interest in encour-
aging gendered parenting styles was a compelling
government interest, Utah's constitutional and stat-
utory prohibitions against the recognition of same-
sex marriage were not narrowly tailored toward the
goal of encouraging gendered parenting styles, and
thus the prohibitions violated same-sex couples'
fundamental right to marry under the Equal Protec-
tion Clause; the speculative claim that children
raised by opposite-sex parents fared better than
children raised by same-sex parents did not over-
come the harm to children of same-sex couples who
were denied the protection and stability of having
parents who are legally married. U.S.C.A.
Const.Amend. 14; 1 U.S.C.A. 7; West's U.C.A.
Const. Art. 1, 29; West's U.C.A. 30-1-2,
30-1-4.1.
Questions
92VI(C)1 In General
92k964 Form and Sufficiency of Ob-
jection, Allegation, or Pleading
92k967 k. Particular claims. Most
Cited Cases
On strict scrutiny under the Equal Protection
Clause, an argument based only on pure speculation
and conjecture cannot carry the day. U.S.C.A.
Const.Amend. 14.
Page 8
--- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah))
(Cite as: 2014 WL 2868044 (C.A.10 (Utah)))
92XXVII Due Process
tions
Most Cited Cases
Marriage 253 2
253 Marriage
Cited Cases
253 Marriage
Unions
Utah's constitutional and statutory prohibitions
against recognition of same-sex marriage could not
be justified, against due process and equal protec-
tion challenges, by concerns that some substantial
degree of civil discord would otherwise ensue.
30-1-2, 30-1-4.1.
[34] Judges 227 24
227 Judges
227k24 k. Judicial powers and functions in
It is a judge's duty to decide all cases within his
jurisdiction that are brought before him, including
controversial cases that arouse the most intense
feelings in the litigants.
92VII(B) Particular Constitutional Rights
92k1065 k. In general. Most Cited Cases
One's right to life, liberty, and property, to free
speech, a free press, freedom of worship and as-
sembly, and other fundamental rights may not be
submitted to vote; they depend on the outcome of
no elections. U.S.C.A. Const.Amends. 1, 14.
West Codenotes
Held UnconstitutionalWest's U.C.A. Const. Art. 1,
29West's U.C.A. 3012(5), 3014.1
Recognized as Unconstitutional1 U.S.C.A. 7
Appeal from the United States District Court for the
District of Utah (D.C. No. 2:13CV00217RJS).
Gene C. Schaerr, Special Assistant Attorney Gener-
al, Salt Lake City, UT (Brian L. Tarbet, Chief
Deputy Attorney General, Parker Douglas, Chief of
Staff and General Counsel, Stanford E. Purser, and
Philip S. Lott, Assistant Utah Attorneys General,
Salt Lake City, UT, and John J. Bursch, Warner
Norcross & Judd LLP, Grand Rapids, MI, and
Monte N. Stewart, Boise, ID, with him on the
briefs), for DefendantsAppellants.
Peggy A. Tomsic, Magleby & Greenwood PC, Salt
Lake City, UT (James E. Magleby and Jennifer
Fraser Parrish, Magleby & Greenwood PC, Salt
Lake City, UT, and Kathryn D. Kendell, Shannon
P. Minter, David C.Codell, National Center for Les-
bian Rights, San Francisco, CA, with her on the
brief), for PlaintiffsAppellees.
FN*
Before KELLY, LUCERO, and HOLMES, Circuit
Judges.
LUCERO, Circuit Judge.
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*1 Our commitment as Americans to the prin-
ciples of liberty, due process of law, and equal pro-
tection of the laws is made live by our adherence to
the Constitution of the United States of America.
Historical challenges to these principles ultimately
culminated in the adoption of the Fourteenth
Amendment nearly one-and-a-half centuries ago.
This Amendment extends the guarantees of due
process and equal protection to every person in
every State of the Union. Those very principles are
at issue yet again in this marriage equality appeal
brought to us by the Governor and Attorney Gener-
al of the State of Utah from an adverse ruling of the
district court.
We are told that because they felt threatened by
state-court opinions allowing same-sex marriage,
Utah legislators andby legislatureinitiated ac-
tion-the citizens of the State of Utah amended their
statutes and state constitution in 2004 to ensure that
the State will not recognize, enforce, or give legal
effect to any law that provides substantially equi-
valent benefits to a marriage between two persons
of the same sex as are allowed for two persons of
the opposite sex. Utah Code 3014.1. These
laws were also intended to assure non-recognition
irrespective of how such a domestic union might be
denominated, or where it may have been per-
formed. Id. Plaintiffs challenged the constitutional-
ity of these laws and the district court agreed with
their position. Under 28 U.S.C. 1291, we enter-
tain the appeal of that ruling.
Our Circuit has not previously considered the
validity of same-sex marriage bans. When the seed
of that question was initially presented to the
United States Supreme Court in 1972, the Court did
not consider the matter of such substantial moment
as to present a justiciable federal question. Baker v.
Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65
(1972) (per curiam). Since that date, the seed has
grown, however. Last year the Court entertained the
federal aspect of the issue in striking down 3 of
the Defense of Marriage Act (DOMA), United
States v. Windsor, U.S. , 133 S.Ct. 2675,
186 L.Ed.2d 808 (2013), yet left open the question
presented to us now in full bloom: May a State of
the Union constitutionally deny a citizen the benefit
or protection of the laws of the State based solely
upon the sex of the person that citizen chooses to
marry?
Having heard and carefully considered the ar-
gument of the litigants, we conclude that, consistent
with the United States Constitution, the State of
Utah may not do so. We hold that the Fourteenth
Amendment protects the fundamental right to
marry, establish a family, raise children, and enjoy
the full protection of a state's marital laws. A state
may not deny the issuance of a marriage license to
two persons, or refuse to recognize their marriage,
based solely upon the sex of the persons in the mar-
riage union. For the reasons stated in this opinion,
we affirm.
I
Utah residents Derek Kitchen and Moudi
Sbeity have been in a loving, committed relation-
ship for several years. The couple lives together in
Salt Lake City, where they jointly own and operate
a business. Kitchen declares that Sbeity is the man
with whom I have fallen in love, the man I want to
marry, and the man with whom I want to spend the
rest of my life. In March 2013, Kitchen and Sbeity
applied for a marriage license from the Salt Lake
County Clerk's office, but were denied because they
are both men. Being excluded from the institution
of marriage has caused Kitchen and Sbeity to un-
dertake a burdensome process of drawing up wills
and other legal documents to enable them to make
important decisions for each other. Even with these
protections, however, the couple cannot access
various benefits of marriage, including the ability to
file joint state tax returns and hold marital property.
Sbeity also states that the legal documents the
couple have obtained do not and cannot provide
the dignity, respect, and esteem of marriage. The
inability to dignify [his] relationship though mar-
riage, Kitchen explains, communicates to him that
his relationship with Sbeity is unworthy of respect,
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equal treatment, and social recognition.
*2 Laurie Wood and Kody Partridge are also
Utah residents who wish to confirm [their] life
commitment and love through marriage. They ap-
plied for a marriage license from the Salt Lake
County Clerk's office in March 2013, but were
denied because they are both women. This denial
made Wood feel like a second class citizen. The
couple's inability to marry carries financial con-
sequences. Because Partridge will be unable to ob-
tain benefits under Wood's pension, the couple has
procured additional life insurance policies. Part-
ridge states that she and Wood face risks and stig-
mas that none of [her] heterosexual married friends
and family ever have to face. She points to the ex-
ample of her parents, who were married for fifty-
five years, observing that her father never had to
worry about his ability to be present or make med-
ical decisions when his wife became terminally ill.
Wood hopes that marriage to Partridge will allow
both society and our families [to] recognize the
life commitment and love we feel for each other.
Karen Archer and Kate Call are also Utah res-
idents in a loving, committed relationship. Archer,
who suffers from chronic health problems, fears
that the legal documents the couple has prepared
will be subject to challenge if she passes away. Her
past experience surviving other partners informs
this fear. Although the documents she prepared in a
prior relationship served their purpose when her
former partner passed, Archer was ineligible to re-
ceive her partner's military pension benefits. Seek-
ing the security enjoyed by other married couples,
Archer and Call travelled to Iowa in July 2011,
where they were wed. Because they could not be
married in their home state, financial constraints
dictated a modest wedding unattended by family
and friends. Despite the inconvenience and sad
pragmatism of our Iowa marriage, Call explains,
we needed whatever protections and security we
could get for our relationship because of Archer's
failing health. However, Utah does not recognize
Archer and Call's marriage.
In March 2013, Kitchen, Sbeity, Wood, Part-
ridge, Archer, and Call filed suit against the Gov-
ernor and Attorney General of Utah and the Clerk
of Salt Lake County (all in their official capacities).
Plaintiffs challenged three provisions of Utah law
relating to same-sex marriage. Utah Code
3012(5) includes among the marriages that are
prohibited and declared void those between per-
sons of the same sex. Id. In 2004, the Utah Legis-
lature passed 3014.1, which provides:
(1)(a) It is the policy of this state to recognize as
marriage only the legal union of a man and a wo-
man as provided in this chapter.
(b) Except for the relationship of marriage
between a man and a woman recognized pursuant
to this chapter, this state will not recognize, en-
force, or give legal effect to any law creating any
legal status, rights, benefits, or duties that are
substantially equivalent to those provided under
Utah law to a man and a woman because they are
married.
*3 (2) Nothing in Subsection (1) impairs any con-
tract or other rights, benefits, or duties that are
enforceable independently of this section.
Id. The Legislature also referred a proposed
constitutional amendment, known as Amendment 3,
to Utah's voters. It states:
(1) Marriage consists only of the legal union
between a man and a woman.
(2) No other domestic union, however denomin-
ated, may be recognized as a marriage or given
the same or substantially equivalent legal effect.
Utah Const. art. I, 29; see Laws 2004, H.J.R.
25 1.
The State's official voter pamphlet described
rulings by courts in other states striking down stat-
utory prohibitions on same-sex marriage as incon-
sistent with state constitutional provisions. In the
arguments for section, written by a state repres-
entative and a state senator, the proponents argued
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(Cite as: 2014 WL 2868044 (C.A.10 (Utah)))
that the Amendment was necessary to protect
against a similar state-court ruling. They posited
that the proposed amendment would not promote
intolerance, hatred, or bigotry but would instead
preserve[an] historic understanding of marriage
rooted in government's strong interest in maintain-
ing public morality, the justified preference for het-
erosexual marriage with its capacity to perpetuate
the human race and the importance of raising chil-
dren in that preferred relationship. Opponents of
the amendment argued that it singles out one spe-
cific grouppeople who are our relatives, neigh-
bors, and co-workersto deny them hundreds of
rights and protections that other Utahns enjoy.
Amendment 3 passed with approximately 66% of
the vote and became 29 of Article I of the Utah
Constitution. This opinion will refer to both of the
foregoing statutes, along with the constitutional
amendment, collectively as Amendment 3.
Plaintiffs allege that Amendment 3 violates
their right to due process under the Fourteenth
Amendment by depriving them of the fundamental
liberty to marry the person of their choice and to
have such a marriage recognized. They also claim
that Amendment 3 violates the Equal Protection
Clause of the Fourteenth Amendment. Plaintiffs as-
serted their claims under 42 U.S.C. 1983, seeking
both a declaratory judgment that Amendment 3 is
unconstitutional and an injunction prohibiting its
enforcement.
On cross motions for summary judgment, the
district court ruled in favor of the plaintiffs. It con-
cluded that [a]ll citizens, regardless of their sexual
identity, have a fundamental right to liberty, and
this right protects an individual's ability to marry
and the intimate choices a person makes about mar-
riage and family. Kitchen v. Herbert, 961
F.Supp.2d 1181, 1204 (D.Utah 2013). The court
further held that Amendment 3 denied plaintiffs
equal protection because it classified based on sex
and sexual orientation without a rational basis. Id.
at 120607, 121015. It declared Amendment 3 un-
constitutional and permanently enjoined enforce-
ment of the challenged provisions. Id. at 1216.
*4 Utah's Governor and Attorney General filed
a timely notice of appeal and moved to stay the dis-
trict court's decision. Both the district court and this
court denied a stay. The Supreme Court, however,
granted a stay of the district court's injunction
pending final disposition of the appeal by this
court.
II
[1][2] We first consider the issue of standing,
although it was not raised by the parties. See Dias
v. City & Cnty. of Denver, 567 F.3d 1169, 1176
(10th Cir.2009) ([S]tanding is a component of this
court's jurisdiction, and we are obliged to consider
it sua sponte to ensure the existence of an Article
III case or controversy .). To possess Article III
standing, a plaintiff must establish (1) that he or
she has suffered an injury in fact; (2) that the injury
is fairly traceable to the challenged action of the de-
fendant; and[ ](3) that it is likely that the injury will
be redressed by a favorable decision. Awad v. Ziri-
ax, 670 F.3d 1111, 1120 (10th Cir.2012)
(quotations omitted).
[3][4][5][6] Plaintiffs suing public officials can
satisfy the causation and redressability require-
ments of standing by demonstrating a meaningful
nexus between the defendant and the asserted in-
jury. Bronson v. Swensen, 500 F.3d 1099, 111112
(10th Cir.2007). [T]he causation element of stand-
ing requires the named defendants to possess au-
thority to enforce the complained-of provision, id.
at 1110, and [t]he redressability prong is not met
when a plaintiff seeks relief against a defendant
with no power to enforce a challenged statute, id.
at 1111. Whether the Defendants have enforce-
ment authority is related to whether, under Ex parte
Young, they are proper state officials for suit.
Cressman v. Thompson, 719 F.3d 1139, 1146 n. 8
(10th Cir.2013) (citation omitted). Under Ex parte
Young, a state defendant sued in his official capa-
city must have some connection with the enforce-
ment of a challenged provision. 209 U.S. 123, 157,
28 S.Ct. 441, 52 L.Ed. 714 (1908). An officer need
Page 12
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(Cite as: 2014 WL 2868044 (C.A.10 (Utah)))
not have a special connection to the allegedly un-
constitutional statute; rather, he need only have a
particular duty to enforce the statute in question and
a demonstrated willingness to exercise that duty.
Chamber of Commerce of the U.S. v. Edmondson,
594 F.3d 742, 760 (10th Cir.2010) (quotation omit-
ted); see also Finstuen v. Crutcher, 496 F.3d 1139,
1151 (10th Cir.2007) (So long as there is [some]
connection [with enforcement of the act], it is not
necessary that the officer's enforcement duties be
noted in the act. (quotation omitted)).
We have no doubt that at least four of the
plaintiffs possessed standing to sue the Salt Lake
County Clerk based on their inability to obtain mar-
riage licenses from the Clerk's office. Plaintiffs
have identified several harms that flow from this
denial, including financial injury. See Nova Health
Sys. v. Gandy, 416 F.3d 1149, 1155 (10th Cir.2005)
(economic loss may constitute injury-in-fact). Be-
cause county clerks are responsible under Utah law
for issuing marriage licenses and recording mar-
riage certificates, Utah Code 3017(1) &
30112(1), these plaintiffs' injuries were caused
by the Clerk's office and would be cured by an in-
junction prohibiting the enforcement of Amend-
ment 3. Accordingly, the Salt Lake County Clerk
possessed the requisite nexus to plaintiffs' injuries.
*5 [7] The Salt Lake County Clerk, however,
has not appealed from the district court's order. We
must therefore consider whether the Governor and
Attorney General are proper appellants absent the
County Clerk. See Hollingsworth v. Perry, U.S.
, , 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768
(2013) ([S]tanding must be met by persons seek-
ing appellate review, just as it must be met by per-
sons appearing in courts of first instance.
(quotation omitted)). In Bishop v. Oklahoma ex rel.
Edmondson, 333 F. App'x 361 (10th Cir.2009)
(unpublished), we held that Oklahoma's Governor
and Attorney General were not proper defendants in
a challenge to that state's prohibition on same-sex
marriage. Id. at 365. Because of the legal and factu-
al differences between that case and this one, we
reach the opposite conclusion as to Utah's Governor
and Attorney General.
Our holding in Bishop turned on the conclusion
that marriage licensing and recognition in Ok-
lahoma were within the administration of the judi-
ciary. Id. The district court clerk charged with
various duties related to marriage is judicial per-
sonnel and is an arm of the court ... subject to the
control of the Supreme Court and the supervisory
control that it has passed down to the Administrat-
ive District Judge in the clerk's administrative dis-
trict. Id. (quoting Speight v. Presley, 203 P.3d
173, 177 (Okla.2008) (additional internal quotation
omitted)). Accordingly, we concluded that the ex-
ecutive branch of Oklahoma's government has no
authority to issue a marriage license or record a
marriage. Id.
In Utah, marriage licenses are issued not by
court clerks but by county clerks. See Utah Code
17204 (listing duties of county clerks) &
1753101 (providing for election of county
clerks). The Governor and Attorney General have
explicitly taken the position in this litigation that
they have ample authority to ensure that the Salt
Lake County Clerk return[s] to her former practice
of limiting marriage licenses to man-woman
couples in compliance with Utah law. This asser-
tion is supported by the Utah Code. The Governor
is statutorily charged with supervis[ing] the offi-
cial conduct of all executive and ministerial of-
ficers
FN1
and see[ing] that all offices are filled
and the duties thereof performed. 6711(1) &
(2). In addition, he may require the attorney gener-
al to aid any county attorney or district attorney in
the discharge of his duties. 6711(7). Utah law
allows an action for the removal of a county officer
for malfeasance in office to be brought by a
county attorney, or district attorney for the county
in which the officer was elected or appointed, or by
the attorney general. 7761 & 2.
The Attorney General is required to exercise
supervisory powers over the district and county at-
torneys of the state in all matters pertaining to the
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(Cite as: 2014 WL 2868044 (C.A.10 (Utah)))
duties of their offices and when required by the
public service or directed by the governor, assist
any county, district, or city attorney in the dis-
charge of his duties. 6751(6) & (8). A clerk
who knowingly issues a license for any prohibited
marriage is guilty of a class A misdemeanor.
30116. Such charges would be filed by a county
or district attorney under the supervision of the At-
torney General. See 1718a201 (district and
county attorneys act as public prosecutors). And the
Governor could order the Attorney General to assist
in such prosecution. 6711(7).
*6 The Governor and Attorney General have
also demonstrated a willingness to exercise their
duty to ensure clerks and other state officials en-
force Amendment 3. Chamber of Commerce, 594
F.3d at 760 (quotation omitted). The record shows
that the Governor coordinated state agencies' re-
sponse to the district court's order, informing his
cabinet:
For those agencies that now face conflicting laws
either in statute or administrative rule, you should
consult with the Assistant Attorney Generals as-
signed to your agency on the best course to re-
solve those conflicts. You should also advise
your analyst in [the Governor's Office of Man-
agement and Budget] of the plans for addressing
the conflicting laws.
Where no conflicting laws exist you should
conduct business in compliance with the federal
judge's ruling until such time that the current dis-
trict court decision is addressed by the 10th Cir-
cuit Court.
Thus, state agencies with responsibility for the
recognition of out-of-state marriages are being dir-
ected by the Governor in consultation with the At-
torney General. These officials' authority over such
agencies is confirmed by Utah law. For example,
Plaintiffs Archer and Call, who were married in
Iowa, specifically seek to file joint Utah tax returns.
Although the Utah State Tax Commission is
charged in the first instance with the duty to ad-
minister and supervise the tax laws of the state,
Utah Code 591210(5), the Attorney General in
his constitutional role as the legal adviser of the
State officers, Utah Const. art. VII, 16, is re-
quired by statute to offer his opinion in writing ...
to any state officer, board, or commission, Utah
Code 6751(7). The Attorney General considers
his opinions to the Utah State Tax Commission,
even informal ones, to be authoritative for the pur-
poses of the Commission with respect to the spe-
cific questions presented. Applicability of Sales &
Use Tax to Transfer of Motor Vehicle from a Part-
ner to a P'ship, Op. Utah Att'y Gen. 8613 (1987),
1987 Utah AG LEXIS 15, at *22. The Attorney
General is empowered to direct the Tax Commis-
sion to recognize Archer and Call's Iowa wedding,
and the Commission would be legally obligated to
follow that instruction and accept a joint tax return.
Accordingly, Archer and Call had standing to sue
the Attorney General for the injuries caused by
Amendment 3's nonrecognition provisions. See gen-
erally Coll v. First Am. Title Ins. Co., 642 F.3d 876,
892 (10th Cir.2011) (Plaintiffs must have standing
to seek each form of relief in each claim.
(quotation omitted)).
The same is true with respect to the Governor.
Utah's executive power is vested in the Gov-
ernor. Utah Const. art. VII, 5. In the exercise of
that power, the Governor appoints the state's tax
commissioners and has the power to initiate pro-
ceedings to remove them from office. Utah Code
591201. Shortly after the Governor sent the
above-quoted message to state agencies, the Tax
Commission issued a Tax Notice stating that
[s]ame-sex couples who are eligible to file a joint
federal income tax return and who elect to file
jointly, may also file a joint 2013 Utah Individual
Income Tax return. Utah State Tax Commission,
Individual Income Tax Returns for SameSex
Couples for Tax Year 2013 (Jan. 15, 2014)
(available at ht-
tp://tax.utah.gov/notice/20140115.pdf). The Tax
Notice refers to the district court's injunction, not-
ing that a stay of that order had not been granted as
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--- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah))
(Cite as: 2014 WL 2868044 (C.A.10 (Utah)))
of December 31, 2013. Id. Thus, one of the injuries
explicitly cited by plaintiffs Archer and Call has
been at least temporarily redressed by the district
court's decision and actions taken in response to it
by the Governor after consultation with the Attor-
ney General.
*7 [8] We conclude that the Governor's and the
Attorney General's actual exercise of supervisory
power and their authority to compel compliance
from county clerks and other officials provide the
requisite nexus between them and Amendment 3.
Although it does not suffice if the injury com-
plained of is the result of the independent action of
some third party not before the court, that does not
exclude injury produced by determinative or coer-
cive effect upon the action of someone else. Ben-
nett v. Spear, 520 U.S. 154, 169, 117 S.Ct. 1154,
137 L.Ed.2d 281 (1997) (quotation, alteration, and
emphasis omitted). And a state official is a proper
defendant if he is responsible for general supervi-
sion of the administration by the local ... officials
of a challenged provision. Papasan v. Allain, 478
U.S. 265, 282 n. 14, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986) (quotation omitted). This is so even if
the state officials are not specifically empowered
to ensure compliance with the statute at issue, if
they clearly have assisted or currently assist in
giving effect to the law. Prairie Band Potawatomi
Nation v. Wagnon, 476 F.3d 818, 828 (10th
Cir.2007) (footnote omitted).
Having concluded that the Governor and Attor-
ney General were properly made defendants below,
we hold that they have standing to appeal the dis-
trict court's decision without participation of the
Salt Lake County Clerk. See Finstuen, 496 F.3d at
1151 (Nothing in Ex Parte Young requires that any
appeal of a lower court's judgment involve all
named state defendants.). As unsuccessful parties
below, both appellants were injured by the judg-
ment sought to be reviewed. Parr v. United States,
351 U.S. 513, 516, 76 S.Ct. 912, 100 L.Ed. 1377
(1956); see also Concorde Res., Inc. v. Woosley ( In
re Woosley ), 855 F.2d 687, 688 (10th Cir.1988)
(Ordinarily, only a litigant who is a party below
and who is aggrieved by the judgment or order may
appeal. (quotation and emphasis omitted)). Both
the Governor and the Attorney General are subject
to the district court's injunction prohibiting them
from enforcing Amendment 3. See Kitchen, 961
F.Supp.2d at 1216; cf. Hollingsworth, 133 S.Ct. at
2662 (concluding appellants lacked standing to ap-
peal because the District Court had not ordered
[the intervenors] to do or refrain from doing any-
thing). We thus conclude that standing issues do
not prevent us from considering this appeal.
III
[9] In 1972, the Supreme Court summarily
dismissed for want of substantial federal question
an appeal from the Minnesota Supreme Court up-
holding a ban on same-sex marriage. Baker, 409
U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65. The state
court considered whether a marriage of two per-
sons of the same sex is authorized by state statutes
and, if not, whether state authorization is constitu-
tionally compelled. Baker v. Nelson, 291 Minn.
310, 191 N.W.2d 185, 185 (Minn.1971). It con-
cluded that the statute used the term marriage as
one of common usage, meaning the state of union
between persons of the opposite sex. Id. at
18586. The state court further reasoned that [t]he
institution of marriage as a union of man and wo-
man, uniquely involving the procreation and rearing
of children within a family, is as old as the book of
Genesis and that [t]he due process clause of the
Fourteenth Amendment is not a charter for restruc-
turing [the institution of marriage] by judicial legis-
lation. Id. at 186. As to the Equal Protection
Clause, the court ruled that [t]here is no irrational
or invidious discrimination because in common-
sense and in a constitutional sense, there is a clear
distinction between a marital restriction based
merely upon race and one based upon the funda-
mental difference in sex. Id. at 187.
*8 [10][11] The Supreme Court has held that
summary dismissals are, of course, to be taken as
rulings on the merits, in the sense that they rejected
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the specific challenges presented in the statement of
jurisdiction and left undisturbed the judgment ap-
pealed from. Washington v. Confederated Bands
& Tribes of Yakima Indian Nation, 439 U.S. 463,
477 n. 20, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979)
(quotation and citation omitted). Summary dis-
missals
do not, however, have the same precedential
value here as does an opinion of this Court after
briefing and oral argument on the merits. A sum-
mary dismissal of an appeal represents no more
than a view that the judgment appealed from was
correct as to those federal questions raised and
necessary to the decision. It does not, as we have
continued to stress, necessarily reflect our agree-
ment with the opinion of the court whose judg-
ment is appealed.
Id. (citations omitted); see Neely v. Newton,
149 F.3d 1074, 1079 (10th Cir.1998) (The Su-
preme Court has cautioned that for purposes of de-
termining the binding effect of a summary action,
the action should not be interpreted as adopting the
rationale of the lower court, but rather as affirming
only the judgment of that court.). Summary af-
firmances and dismissals for want of a substantial
federal question without doubt reject the specific
challenges presented in the statement of jurisdic-
tion. Mandel v. Bradley, 432 U.S. 173, 176, 97
S.Ct. 2238, 53 L.Ed.2d 199 (1977). And [t]hey do
prevent lower courts from coming to opposite con-
clusions on the precise issues presented and neces-
sarily decided by those actions. Id. [I]f the Court
has branded a question as unsubstantial, it remains
so except when doctrinal developments indicate
otherwise. Hicks v. Miranda, 422 U.S. 332, 344,
95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quotation
omitted).
FN2
The district court concluded that
doctrinal developments had superseded Baker.
Kitchen, 961 F.Supp.2d at 119495. We agree.
Two landmark decisions by the Supreme Court
have undermined the notion that the question
presented in Baker is insubstantial. Baker was de-
cided before the Supreme Court held that intimate
conduct with another person ... can be but one ele-
ment in a personal bond that is more enduring. The
liberty protected by the Constitution allows homo-
sexual persons the right to make this choice.
2472, 156 L.Ed.2d 508 (2003). The decision in
Baker also pre-dates the Court's opinion in Wind-
sor. Several courts held prior to Windsor that Baker
controlled the same-sex marriage question. See,
e.g., Massachusetts v. U.S. Dep't of Health & Hu-
man Servs., 682 F.3d 1, 8 (1st Cir.2012) ( Baker
does not resolve our own case but it does limit the
arguments to ones that do not presume or rest on a
constitutional right to same-sex marriage.); Don-
aldson v. State, 367 Mont. 228, 292 P.3d 364, 371
n. 5 (Mont.2012) (The U.S. Supreme Court's ac-
tion in Baker has been described as binding preced-
ent. (citations omitted)). However, since Windsor
was decided, nearly every federal court to have
considered the issueincluding the district court
belowhas ruled that Baker does not control. See
Wolf v. Walker, No. 14cv64bbc, 2014 U.S. Dist.
LEXIS 77125, at *1018 (W.D. Wis. June 6, 2014);
Whitewood v. Wolf, No. 1:13cv1861, 2014 U.S.
Dist. LEXIS 68771, at * 1418 (M.D.Pa. May 20,
2014); Geiger v. Kitzhaber, Nos.
6:13cv01834MC & 6:13cv02256MC, 2014
U.S. Dist. LEXIS 68171, at *7 n. 1 (D.Or. May 19,
2014); Latta v. Otter, No. 1:13cv00482CWD,
2014 U.S. Dist. LEXIS 66417, at *28 (D.Idaho May
13, 2014); DeBoer v. Snyder, No. 12CV10285,
2014 U.S. Dist. LEXIS 37274, at *46 n. 6
(E.D.Mich. Mar. 21, 2014); De Leon v. Perry, No.
SA13CA00982OLG, 2014 U .S. Dist. LEXIS
26236, at *2829 (W.D.Tex. Feb.26, 2014); Bostic
v. Rainey, 970 F.Supp.2d 456, 470 (E.D.Va.2014);
McGee v. Cole, No. 3:1324068, 2014 U.S. Dist.
LEXIS 10864, at *32 (S.D.W.Va. Jan. 29, 2014);
Bishop v. United States ex rel. Holder, 962
F.Supp.2d 1252, 1277 (N.D.Okla.2014); Kitchen,
961 F.Supp.2d at 1195. But see Merritt v. Att'y
Gen., No. 13215BAJSCR, 2013 U.S. Dist.
LEXIS 163235, at *2 (M.D.La. Oct. 2, 2013), ma-
gistrate judge report adopted by 2013 U.S. Dist.
LEXIS 162583 (M.D.La. Nov. 13, 2013) (citing
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Baker as controlling in dismissing pro se complaint,
but not considering whether doctrinal developments
had undermined Baker ).
*9 We acknowledge that the question presented
in Windsor is not identical to the question before
us. DOMA interfered with New York's decision
that same-sex couples should have the right to
marry and so live with pride in themselves and their
union and in a status of equality with all other mar-
ried persons, a decision designed to correct what
its citizens and elected representatives perceived to
be an injustice that they had not earlier known or
understood. Windsor, 133 S.Ct. at 2689. The
State used its historic and essential authority to
define the marital relation in this way, and its
role and its power in making the decision enhanced
the recognition, dignity, and protection of the class
in their own community. Id. at 2692. Because
DOMA used this state-defined class for the oppos-
ite purposeto impose restrictions and disabilit-
ies, the Court framed the dispositive question as
whether the resulting injury and indignity is a
deprivation of an essential part of the liberty pro-
tected by the Fifth Amendment. Id. Although it is
true that Windsor resolved tension between a state
law permitting same-sex marriage and a federal
non-recognition provision, the Court's description
of the issue indicates that its holding was not solely
based on the scope of federal versus state powers.
Appellants stress the presence of these federal-
ism concerns in Windsor, which, as the Chief
Justice noted in dissent, come into play on the oth-
er side of the board in ... cases about the constitu-
tionality of state bans on same-sex marriage. Id. at
2697 (Roberts, C.J., dissenting). The Windsor ma-
jority stated repeatedly that the regulation of mar-
riage has traditionally been a state function. See id.
at 2691 (State laws defining and regulating mar-
riage, of course, must respect the constitutional
rights of persons, but, subject to those guarantees,
regulation of domestic relations is an area that has
long been regarded as a virtually exclusive province
of the States. (quotation and citation omitted)); id.
(The states, at the time of the adoption of the Con-
stitution, possessed full power over the subject of
marriage and divorce .... (quotation and alterations
omitted)); id. (Consistent with this allocation of
authority, the Federal Government, through our his-
tory, has deferred to state-law policy decisions with
respect to domestic relations.). Appellants urge us
to conclude that the principles of federalism that
Windsor would later reaffirm require us to adhere
to the Court's summary affirmance in Baker.
However, the Windsor Court also explained
that the federal government in enacting discrete
statutes, can make determinations that bear on mar-
ital rights and privileges. Id. at 2690. For example,
Congress can preempt state marriage laws dealing
with insurance proceeds in a federal program, reject
sham marriages for immigration purposes even if
the marriage is valid under state law, and recognize
common-law marriage for the purpose of establish-
ing income-based Social Security benefit eligibility
regardless of state law. Id. The Windsor Court con-
cluded it was unnecessary to decide whether
DOMA is a violation of the Constitution because
it disrupts the federal balance. Id. at 2692.
*10 Rather than relying on federalism prin-
ciples, the Court framed the question presented as
whether the injury and indignity caused by
DOMA is a deprivation of an essential part of the
liberty protected by the Fifth Amendment. Id. And
the Court answered that question in the affirmative:
The liberty protected by the Fifth Amendment's
Due Process Clause contains within it the prohib-
ition against denying to any person the equal pro-
tection of the laws. While the Fifth Amendment
itself withdraws from Government the power to
degrade or demean in the way this law does, the
equal protection guarantee of the Fourteenth
Amendment makes that Fifth Amendment right
all the more specific and all the better understood
and preserved.
Id. at 2695 (citations omitted).
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The history of DOMA's enactment and its
own text, the Court concluded, demonstrate that
interference with the equal dignity of same-sex
marriages, a dignity conferred by the States in the
exercise of their sovereign power, was more than an
incidental effect of the federal statute. It was its es-
sence. Id. at 2693. DOMA impose[d] a disadvant-
age, a separate status, and so a stigma upon all who
enter into same-sex marriages.... Id. The statute
undermine[d] both the public and private signific-
ance of state-sanctioned same-sex marriages by
telling those couples, and all the world, that their
otherwise valid marriages are unworthy of federal
recognition. Id. at 2694. And it humiliate[d] tens
of thousands of children now being raised by same-
sex couples by making it even more difficult for
the children to understand the integrity and close-
ness of their own family and its concord with other
families in their community and in their daily
lives. Id. Because DOMA's differentiation de-
means [same-sex] couple[s], whose moral and
sexual choices the Constitution protects, see
Lawrence, 539 U.S. 558, 123 S.Ct. 2472, 156
L.Ed.2d 508, and whose relationship[s] the State
has sought to dignify, the Court held that the stat-
ute violated the Fifth Amendment. Windsor, 133
S.Ct. at 269495.
The Windsor majority expressly cabined its
holding to state-recognized marriages, id. at 2696,
and is thus not directly controlling. But the similar-
ity between the claims at issue in Windsor and
those asserted by the plaintiffs in this case cannot
be ignored. This is particularly true with respect to
plaintiffs Archer and Call, who seek recognition by
Utah of a marriage that is valid in the state where it
was performed. More generally, all six plaintiffs
seek equal dignity for their marital aspirations. All
claim that the state's differential treatment of them
as compared to opposite-sex couples demeans and
undermines their relationships and their personal
autonomy. Although reasonable judges may dis-
agree on the merits of the same-sex marriage ques-
tion, we think it is clear that doctrinal developments
foreclose the conclusion that the issue is, as Baker
determined, wholly insubstantial.
FN3
IV
*11 We turn now to the merits of the issue be-
fore us. We must first decide whether the liberty in-
terest protected in this case includes the right to
marry, and whether that right is limited, as appel-
lants contend, to those who would wed a person of
the opposite sex.
The district court granted summary judgment
in favor of the plaintiffs. We review a grant of sum-
mary judgment de novo. Hobbs ex rel. Hobbs v.
Zenderman, 579 F.3d 1171, 1179 (10th Cir.2009).
A party is entitled to summary judgment only if,
viewing the evidence in the light most favorable to
the non-moving party, the movant is entitled to
judgment as a matter of law. Id.; see Fed.R.Civ.P.
56(a).
[12][13] We review the decision to grant a
permanent injunction for abuse of discretion. FTC
v. Accusearch Inc., 570 F.3d 1187, 1201 (10th
Cir.2009). To obtain a permanent injunction, a
plaintiff must show: (1) actual success on the mer-
its; (2) irreparable harm unless the injunction is is-
sued; (3) the threatened injury outweighs the harm
that the injunction may cause the opposing party;
and (4) the injunction, if issued, will not adversely
affect the public interest. Sw. Stainless, LP v. Sap-
pington, 582 F.3d 1176, 1191 (10th Cir.2009). Be-
cause appellants have challenged only the merits
aspect of the district court's decision, we do not
consider the remaining factors. See Bronson, 500
F.3d at 1104 ([T]he omission of an issue in an
opening brief generally forfeits appellate considera-
tion of that issue.).
A
[14][15][16][17] [A]ll fundamental rights
comprised within the term liberty are protected by
the Federal Constitution from invasion by the
States. Planned Parenthood v. Casey, 505 U.S.
833, 84647, 112 S.Ct. 2791, 120 L.Ed.2d 674
(1992) (quotation omitted). The doctrine of sub-
stantive due process extends protections to funda-
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mental rights in addition to the specific freedoms
protected by the Bill of Rights. Washington v.
Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138
L.Ed.2d 772 (1997); see also Casey, 505 U.S. at
848, 112 S.Ct. 2791 (Neither the Bill of Rights nor
the specific practices of States at the time of the ad-
option of the Fourteenth Amendment marks the
outer limits of the substantive sphere of liberty
which the Fourteenth Amendment protects.). To
qualify as fundamental, a right must be
objectively, deeply rooted in this Nation's history
and tradition ... and implicit in the concept of
ordered liberty, such that neither liberty nor justice
would exist if [it] were sacrificed. Glucksberg,
521 U.S. at 72021, 117 S.Ct. 2258 (quotations
omitted).
1
[18][19] There can be little doubt that the right
to marry is a fundamental liberty. The marital rela-
tionship is
older than the Bill of Rightsolder than our
political parties, older than our school system.
Marriage is a coming together for better or for
worse, hopefully enduring, and intimate to the
degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral loyalty, not
commercial or social projects.
*12 Griswold v. Connecticut, 381 U.S. 479,
486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The
Court has long recognized that marriage is the
most important relation in life. Maynard v. Hill,
125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654
(1888). Without doubt, the liberty protected by
the Fourteenth Amendment includes the freedom
to marry, establish a home[,] and bring up chil-
dren. Meyer v. Nebraska, 262 U.S. 390, 399, 43
S.Ct. 625, 67 L.Ed. 1042 (1923); see also Loving v.
Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d
1010 (1967) (The freedom to marry has long been
recognized as one of the vital personal rights essen-
tial to the orderly pursuit of happiness by free
men.).
Appellants contend that these precedents and
others establish only that opposite-sex marriage is a
fundamental right. They highlight the Court's ad-
monition to undertake a careful description of the
asserted fundamental liberty interest. Glucksberg,
521 U.S. at 721 (quotation omitted). This ap-
proach tends to rein in the subjective elements that
are necessarily present in due-process judicial re-
view. Id.; see also Collins v. City of Harker
Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117
L.Ed.2d 261 (1992) (courts must exercise utmost
care and be reluctant to expand the concept of
substantive due process because guideposts for re-
sponsible decisionmaking in this unchartered area
are scarce and open-ended). A right to same-sex
marriage cannot be deeply rooted in our tradition,
appellants argue, because until recent years, many
citizens had not even considered the possibility that
two persons of the same sex might aspire to occupy
the same status and dignity as that of a man and
woman in lawful marriage. Windsor, 133 S.Ct. at
2689; see also id. at 2715 (Alito, J ., dissenting)
(In this country, no State permitted same-sex mar-
riage until the Massachusetts Supreme Judicial
Court held in 2003 that limiting marriage to oppos-
ite-sex couples violated the State Constitution.).
But the right to marry is of fundamental im-
portance for all individuals. Zablocki v. Redhail,
434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618
(1978). In numerous cases, the Court has discussed
the right to marry at a broader level of generality
than would be consistent with appellants' argument.
The Loving Court concluded that a state statute
voiding marriages between white and non-white
participants violated the Due Process Clause. 388
U.S. at 4 n. 3, 12.
Marriage is one of the basic civil rights of man,
fundamental to our very existence and survival.
To deny this fundamental freedom on so unsup-
portable a basis as the racial classifications em-
bodied in these statutes, classifications so directly
subversive of the principle of equality at the heart
of the Fourteenth Amendment, is surely to de-
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prive all the State's citizens of liberty without due
process of law. The Fourteenth Amendment re-
quires that the freedom of choice to marry not be
restricted by invidious racial discriminations. Un-
der our Constitution, the freedom to marry or not
marry, a person of another race resides with the
individual and cannot be infringed by the State.
*13 Id. at 12 (quotation and citation omitted).
As the Court later explained, [m]arriage is
mentioned nowhere in the Bill of Rights and inter-
racial marriage was illegal in most States in the
19th century, but the Court was no doubt correct in
finding it to be an aspect of liberty protected
against state interference by the substantive com-
ponent of the Due Process Clause in Loving v. Vir-
ginia. Casey, 505 U.S. at 84748, 112 S.Ct. 2791
(citation omitted); see also Lawrence, 539 U.S. at
57778, 123 S.Ct. 2472 ([N]either history nor tra-
dition could save a law prohibiting miscegenation
from constitutional attack. (quotation omitted)).
Thus the question as stated in Loving, and as char-
acterized in subsequent opinions, was not whether
there is a deeply rooted tradition of interracial mar-
riage, or whether interracial marriage is implicit in
the concept of ordered liberty; the right at issue was
the freedom of choice to marry. Loving, 388 U.S.
at 12.
Similarly, Zablocki considered an equal protec-
tion challenge to a state law barring individuals in
arrearage of child support obligations from marry-
ing. Because the right to marry is of fundamental
importance and the classification at issue ... sig-
nificantly interfere[d] with the exercise of that
right, the Court determined that critical examina-
tion of the state interests advanced in support of the
classification [wa]s required. Zablocki, 434 U.S.
at 383, 98 S.Ct. 673 (quotation omitted). It cau-
tioned that not every state regulation which relates
in any way to the incidents of or prerequisites for
marriage must be subjected to rigorous scrutiny. To
the contrary, reasonable regulations that do not sig-
nificantly interfere with decisions to enter into the
marital relationship may legitimately be imposed.
Id. at 386. But the statute at issue was impermiss-
ible because it constituted a serious intrusion into
[the] freedom of choice in an area in which we have
held such freedom to be fundamental and could
not be upheld unless it [wa]s supported by suffi-
ciently important state interests and [wa]s closely
tailored to effectuate only those interests. Id. at
387, 388. The right at issue was characterized as
the right to marry, not as the right of child-support
debtors to marry.
2
It is true that both Loving and Zablocki in-
volved opposite-sex couples. Such pairings, appel-
lants remind us, may be naturally procreativea
potentially meaningful consideration given that the
Court has previously discussed marriage and pro-
creation together. See Skinner v. Oklahoma ex rel.
Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86
L.Ed. 1655 (1942) (Marriage and procreation are
fundamental to the very existence and survival of
the race.); Carey v. Population Servs. Int'l, 431
U.S. 678, 68485, 97 S.Ct. 2010, 52 L.Ed.2d 675
(1977) ([I]t it is clear that among the decisions that
an individual may make without unjustified govern-
ment interference are personal decisions relating to
marriage, procreation, contraception, family rela-
tionships, and child rearing and education. The de-
cision whether or not to beget or bear a child is at
the very heart of this cluster of constitutionally pro-
tected choices. (quotation omitted)).
*14 But the Court has also described the funda-
mental right to marry as separate from the right to
procreate, including in Glucksberg itself, the case
upon which appellants' fundamental-right argument
turns. See Glucksberg, 521 U.S. at 720 (describing
Loving as a right-to-marry case and Skinner as a
right-to-procreate case); accord M.L.B. v. S.L.J.,
519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473
(1996) (same). Appellants' contention that the right
to marriage is fundamental because of its procreat-
ive potential is also undercut by Turner v. Safley,
482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).
In Turner, the Court invalidated a prison rule
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barring inmates from marrying unless a prison su-
perintendent found compelling reasons for the mar-
riage. Id. at 8182. [G]enerally only a pregnancy
or the birth of an illegitimate child would be con-
sidered a compelling reason. Id. at 82. Thus, the
challenged rule operated to bar inmates who had
not procreated from marrying. The Court began its
analysis of the marriage restriction by dismissing
the argument that the rule does not deprive prison-
ers of a constitutionally protected right even
though the decision to marry is a fundamental
right because a different rule should obtain in a
prison forum. Id. at 9495 (quotation and ellipses
omitted). Despite the substantial restrictions
[imposed] as a result of incarceration, the Court
concluded, inmates could not be denied the funda-
mental right of marriage simply because of their
imprisonment. Id. at 95. The right at issue was nev-
er framed as inmate marriage; the Court simply
asked whether the fact of incarceration made it im-
possible for inmates to benefit from the important
attributes of marriage. Id.; see Latta, 2014 U.S.
Dist. LEXIS 66417, at *37 (Loving was no more
about the right to interracial marriage than Turner
was about the prisoner's right to marry or Zab-
locki was about the dead-beat dad's right to marry.
Even in cases with such vastly different facts, the
Supreme Court has consistently upheld the right to
marry, as opposed to a sub-right tied to the facts of
the case.); Obergefell v. Wymyslo, 962 F.Supp.2d
968, 982 n. 10 (S.D.Ohio 2013) (In individual
cases regarding parties to potential marriages with a
wide variety of characteristics, the Supreme Court
consistently describes a general fundamental right
to marry rather than the right to interracial mar-
riage, the right to inmate marriage, or the right
of people owing child support to marry. ).
The Turner Court's description of the
important attributes of marriage [that] remain ...
after taking into account the limitations imposed by
prison life, 482 U.S. at 95, 107 S.Ct. 2254, is rel-
evant to the case at bar:
First, inmate marriages, like others, are expres-
sions of emotional support and public commit-
ment. These elements are an important and signi-
ficant aspect of the marital relationship. In addi-
tion, many religions recognize marriage as hav-
ing spiritual significance; for some inmates and
their spouses, therefore, the commitment of mar-
riage may be an exercise of religious faith as well
as an expression of personal dedication. Third,
most inmates eventually will be released by pa-
role or commutation, and therefore most inmate
marriages are formed in the expectation that they
ultimately will be fully consummated. Finally,
marital status often is a pre-condition to the re-
ceipt of government benefits (e.g., Social Secur-
ity benefits), property rights (e.g., tenancy by the
entirety, inheritance rights), and other, less tan-
gible benefits (e.g., legitimation of children born
out of wedlock). These incidents of marriage, like
the religious and personal aspects of the marriage
commitment, are unaffected by the fact of con-
finement or the pursuit of legitimate corrections
goals.
*15 Id. at 9596. The Court ruled that these
remaining elements are sufficient to form a consti-
tutionally protected marital relationship in the pris-
on context even under the reasonable relationship
test applicable to prison regulations. Id. at 9697.
FN4
As the Turner opinion highlights, the import-
ance of marriage is based in great measure on
personal aspects including the expression[ ] of
emotional support and public commitment. Id. at
9596. This conclusion is consistent with the
Court's other pronouncements on the freedom to
marry, which focus on the freedom to choose one's
spouse. See Cleveland Bd. of Educ. v. LaFleur, 414
U.S. 632, 63940, 94 S.Ct. 791, 39 L.Ed.2d 52
(1974) (This Court has long recognized that free-
dom of personal choice in matters of marriage and
family life is one of the liberties protected by the
Due Process Clause of the Fourteenth Amend-
ment.); see also Hodgson v. Minnesota, 497 U.S.
417, 435, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990)
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(plurality opinion)
FN5
([T]he regulation of con-
stitutionally protected decisions, such as where a
person shall reside or whom he or she shall marry,
must be predicated on legitimate state concerns oth-
er than disagreement with the choice the individual
has made.); Roberts v. U.S. Jaycees, 468 U.S. 609,
620, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) ([T]he
Constitution undoubtedly imposes constraints on
the State's power to control the selection of one's
spouse....); Carey, 431 U.S. at 68485, 97 S.Ct.
2010 ([A]mong the decisions that an individual
may make without unjustified government interfer-
ence are personal decisions relating to marriage ....
(quotation omitted)). The Turner Court also high-
lighted the role of marriage in allowing its parti-
cipants to gain access to legal and financial benefits
they would otherwise be denied. 482 U.S. at 96,
107 S.Ct. 2254.
We must reject appellants' efforts to downplay
the importance of the personal elements inherent in
the institution of marriage, which they contend are
not the principal interests the State pursues by reg-
ulating marriage. Rather than being [m]utually
exclusive of the procreative potential of marriage,
these freedomsto choose one's spouse, to decide
whether to conceive or adopt a child, to publicly
proclaim an enduring commitment to remain to-
gether through thick and thinreinforce the chil-
drearing family structure. Further, such freedoms
support the dignity of each person, a factor emphas-
ized by the Windsor Court. See 133 S.Ct. at 2692
(The State's decision to give this class of persons
the right to marry conferred upon them a dignity
and status of immense import.); id. (New York's
decision enhanced the recognition, dignity, and
protection of the class); id. (By its recognition of
the validity of same-sex marriages performed in
other jurisdictions and then by authorizing same-
sex unions and same-sex marriages, New York
sought to give further protection and dignity to that
bond.); id. (plaintiff's relationship was deemed by
the State worthy of dignity in the community equal
with all other marriages).
*16 Of course, the Windsor decision dealt with
federal recognition of marriages performed under
state law. But with respect to plaintiffs Archer and
Call, who were married in Iowa and whose mar-
riage Utah will not recognize under Amendment 3,
the analogy to Windsor is particularly apt. Amend-
ment 3's non-recognition provision, like DOMA,
contrives to deprive some couples married under
the laws of [another] State, but not other couples,
of both rights and responsibilities.... By this dy-
namic [Amendment 3] undermines both the pub-
lic and private significance of state-sanctioned
same-sex marriages; for it tells those couples, and
all the world, that their otherwise valid marriages
are unworthy of [Utah's] recognition.... The dif-
ferentiation demeans the couple, whose moral
and sexual choices the Constitution protects.
Id. at 2694.
[20][21] In light of Windsor, we agree with the
multiple district courts that have held that the fun-
damental right to marry necessarily includes the
right to remain married. See Latta, 2014 U.S. Dist.
LEXIS 66417, at *40 (Idaho's Marriage Laws
render the Plaintiff couples legal strangers, strip-
ping them of the choice to marry or remain married
in the state they call home. Therefore, Idaho's Mar-
riage Laws impermissibly infringe on Plaintiffs'
fundamental right to marry.); Henry v. Himes, No.
1:14cv129, 2014 U.S. Dist. LEXIS 51211, at *22
(S.D.Ohio Apr. 14, 2014) (There are a number of
fundamental rights and/or liberty interests protected
by the Due Process clause that are implicated by the
marriage recognition ban, including the right to
marry, the right to remain married, and the right to
parental autonomy. (footnote omitted)); De Leon,
2014 U.S. Dist. LEXIS 26236, at *66 ([B]y declar-
ing existing, lawful same-sex marriages void and
denying married couples the rights, responsibilities,
and benefits of marriage, Texas denies same-sex
couples who have been married in other states their
due process.); Obergefell, 962 F.Supp.2d at 978
(The right to remain married is ... properly recog-
nized as one that is a fundamental liberty interest
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appropriately protected by the Due Process Clause
of the United States Constitution.).
FN6
And although we acknowledge that state recog-
nition serves to enhance[ ] the interests at stake,
Windsor, 133 S.Ct. at 2692, surely a great deal of
the dignity of same-sex relationships inheres in the
loving bonds between those who seek to marry and
the personal autonomy of making such choices. As
the Court held in Lawrence, several years before
discussing the state recognition issues present in
Windsor,
adults may choose to enter upon [an intimate] re-
lationship in the confines of their homes and their
own private lives and still retain their dignity as
free persons. When sexuality finds overt expres-
sion in intimate conduct with another person, the
conduct can be but one element in a personal
bond that is more enduring. The liberty protected
by the Constitution allows homosexual persons
the right to make this choice.
*17 539 U.S. at 567, 123 S.Ct. 2472.
Appellants' assertion that the right to marry is
fundamental because it is linked to procreation is
further undermined by the fact that individuals have
a fundamental right to choose against reproduction.
If the right of privacy means anything, it is the
right of the individual, married or single, to be free
from unwarranted governmental intrusion into mat-
ters so fundamentally affecting a person as the de-
cision whether to bear or beget a child. Eisen-
stadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31
L.Ed.2d 349 (1972) (emphasis omitted); see also
Griswold, 381 U.S. at 48586, 85 S.Ct. 1678
(recognizing right of married individuals to use
contraception).
The Court has repeatedly referenced the raising
of childrenrather than just their creationas a
key factor in the inviolability of marital and famili-
al choices. See, e.g., Carey, 431 U.S. at 685, 97
S.Ct. 2010 (child rearing and education decisions
protected from unjustified government interfer-
ence (quotation omitted)); Moore v. City of East
Cleveland, 431 U.S. 494, 505, 97 S.Ct. 1932, 52
L.Ed.2d 531 (1977) (plurality opinion)
([d]ecisions concerning child rearing have been
recognized as entitled to constitutional protec-
tion); Pierce v. Soc'y of Sisters, 268 U.S. 510,
53435, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)
(discussing the liberty of parents and guardians to
direct the upbringing and education of children un-
der their control); Meyer, 262 U.S. at 399, 43 S.Ct.
625 (liberty protected by the Due Process Clause
includes right to marry, establish a home[,] and
bring up children). Although cohabitating same-
sex couples are prohibited from jointly adopting
children under Utah law as a result of the same-sex
marriage ban, Utah Code 78B6117(3), the re-
cord shows that nearly 3,000 Utah children are be-
ing raised by same-sex couples. Thus childrearing,
a liberty closely related to the right to marry, is one
exercised by same-sex and opposite-sex couples
alike, as well as by single individuals.
FN7
Children of same-sex couples may lack a biolo-
gical connection to at least one parent, but
biological relationships are not [the] exclusive de-
termina[nt] of the existence of a family. Smith v.
Org. of Foster Families for Equal. & Reform, 431
U.S. 816, 843, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977)
. [T]he importance of the familial relationship, to
the individuals involved and to the society, stems
from the emotional attachments that derive from the
intimacy of daily association, and from the role it
plays in promoting a way of life through the in-
struction of children. Id. at 844 (quotation omit-
ted); see also Utah Code 78B6139 (granting
adoptive parents all rights and duties of biological
parents). As the Court in Windsor held, restrictions
on same-sex marriage humiliate[ ] tens of thou-
sands of children now being raised by same-sex
couples and make[ ] it even more difficult for the
children to understand the integrity and closeness
of their own family and its concord with other fam-
ilies in their community and in their daily lives.
133 S.Ct. at 2694. Such statutes bring[ ] financial
harm to children of same-sex couples ... raise[ ] the
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cost of health care for families by taxing health be-
nefits provided by employers to their workers'
same-sex spouses and den[y] or reduce[ ] benefits
allowed to families upon the loss of a spouse and
parent, benefits that are an integral part of family
security. Id. at 2695. These laws deny to the chil-
dren of same-sex couples the recognition essential
to stability, predictability, and dignity. Read liter-
ally, they prohibit the grant or recognition of any
rights to such a family and discourage those chil-
dren from being recognized as members of a family
by their peers.
*18 Appellants urge us to conclude that a court
cannot determine whether there is a right to mar-
riage without first defining the institution. They
also say that the term marriage by its nature ex-
cludes same-sex couples. Glucksberg requires us to
develop a careful description of the asserted fun-
damental liberty interest, relying on [o]ur Na-
tion's history, legal traditions, and practices [to]
provide the crucial guideposts for responsible de-
cisionmaking. 521 U.S. at 721 (quotation omitted).
But we cannot conclude that the fundamental
liberty interest in this case is limited to the right to
marry a person of the opposite sex. As we have dis-
cussed, the Supreme Court has traditionally de-
scribed the right to marry in broad terms independ-
ent of the persons exercising it. The Court's other
substantive due process cases similarly eschew a
discussion of the right-holder in defining the scope
of the right. In Glucksberg, for example, the Court
framed the question presented as whether the
liberty specially protected in the Due Process
Clause includes a right to commit suicide which it-
self includes a right to assistance in doing so. 521
U.S. at 723 (footnote omitted). The Court's formu-
lation implicitly rejected respondents' framing of
the claimed liberty as exercised by a specific class
of persons: Whether the Fourteenth Amendment's
guarantee of liberty protects the decision of a men-
tally competent, terminally ill adult to bring about
impending death in a certain, humane, and dignified
manner. Br. of Resp't at i, Glucksberg, 521 U.S.
702 (No. 96110) (emphasis added).
Prior to the Windsor decision, several courts
concluded that the well-established right to marry
eo ipso cannot be exercised by those who would
choose a spouse of the same sex. See, e.g., Jackson
v. Abercrombie, 884 F.Supp.2d 1065, 109498
(D.Haw.2012) ([T]he right at issue here is an as-
serted new right to same-sex marriage.); Andersen
v. King Cnty., 158 Wash.2d 1, 138 P.3d 963, 979
(Wash.2006) (en banc) (Plaintiffs have not estab-
lished that at this time the fundamental right to
marry includes the right to marry a person of the
same sex.); Hernandez v. Robles, 7 N.Y.3d 338,
821 N.Y.S.2d 770, 855 N.E.2d 1, 10 (N.Y.2006)
([B]y defining marriage as it has, the New York
Legislature has not restricted the exercise of a fun-
damental right.). We nonetheless agree with
plaintiffs that in describing the liberty interest at
stake, it is impermissible to focus on the identity or
class-membership of the individual exercising the
right. See De Leon, 2014 U.S. Dist. LEXIS 26236,
at *5859 (a state cannot define marriage in a way
that denies its citizens the freedom of personal
choice in deciding whom to marry, nor may it deny
the same status and dignity to each citizen's de-
cision (quotations omitted)). Simply put, funda-
mental rights are fundamental rights. They are not
defined in terms of who is entitled to exercise
them. Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d
at 24 (Kaye, C.J., dissenting); see also Goodridge
v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d
941, 97273 (Mass.2003) (Greaney, J., concurring)
(To define the institution of marriage by the char-
acteristics of those to whom it always has been ac-
cessible, in order to justify the exclusion of those to
whom it never has been accessible, is conclusory
and bypasses the core question....). Plaintiffs seek
to enter into legally recognized marriages, with all
the concomitant rights and responsibilities en-
shrined in Utah law. They desire not to redefine the
institution but to participate in it.
*19 Appellants' assertion that plaintiffs are ex-
cluded from the institution of marriage by defini-
tion is wholly circular. Nothing logically or physic-
ally precludes same-sex couples from marrying, as
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is amply demonstrated by the fact that many states
now permit such marriages. See Bostic, 970
F.Supp.2d at 473 (Gay and lesbian individuals
share the same capacity as heterosexual individuals
to form, preserve and celebrate loving, intimate and
lasting relationships.). Appellants' reliance on the
modifier definitional does not serve a meaningful
function in this context. To claim that marriage, by
definition, excludes certain couples is simply to in-
sist that those couples may not marry because they
have historically been denied the right to do so.
One might just as easily have argued that interracial
couples are by definition excluded from the institu-
tion of marriage. But neither history nor tradition
could save a law prohibiting miscegenation from
constitutional attack. Lawrence, 539 U.S. at
57778, 123 S.Ct. 2472 (quotation omitted); see
also Williams v. Illinois, 399 U.S. 235, 239, 90
S.Ct. 2018, 26 L.Ed.2d 586 (1970) ([N]either the
antiquity of a practice nor the fact of steadfast le-
gislative and judicial adherence to it through the
centuries insulates it from constitutional attack....);
In re Marriage Cases, 43 Cal.4th 757, 76
Cal.Rptr.3d 683, 183 P.3d 384, 451 (Cal.2008)
([E]ven the most familiar and generally accepted
of social practices and traditions often mask an un-
fairness and inequality that frequently is not recog-
nized or appreciated by those not directly harmed
by those practices or traditions.), superseded by
constitutional amendment as stated in Strauss v.
Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207
P.3d 48, 59 (Cal.2009).
Our conclusion that we are not required to de-
fer to Utah's characterization of its ban on same-sex
marriage as a definition is reinforced by the
Court's opinion in Windsor. Section 3 of DOMA,
which the Court invalidated, amend [ed] the Dic-
tionary Act ... of the United States Code to provide
a federal definition of marriage and spouse.
Windsor, 133 S.Ct. at 2683. In relevant part, the
statute read: [T]he word marriage means only a
legal union between one man and one woman as
husband and wife, and the word spouse refers
only to a person of the opposite sex who is a hus-
band or a wife.' Id. (quoting 1 U.S.C. 7). Appel-
lants repeatedly assert that Amendment 3 simply
defines marriage, at one point contrasting the tra-
ditional definition of marriage with the anti-
miscegenation laws invalidated in Loving. They
contend that Utah's marriage laws merely define
marriage within its borders. The Court's holding in
Windsor demonstrates that a provision labeled a
definition is not immune from constitutional
scrutiny. We see no reason to allow Utah's invoca-
tion of its power to define the marital relation,
Windsor, 133 S.Ct. at 2692, to become a talisman,
by whose magic power the whole fabric which the
law had erected ... is at once dissolved, Bank of the
U.S. v. Dandridge, 25 U.S. (12 Wheat.) 64, 113, 6
L.Ed. 552 (1827) (Marshall, C.J., dissenting).
*20 Whether a state has good reason to exclude
individuals from the marital relationship based on a
specific characteristic certainly comes into play in
determining if the classification survives the appro-
priate level of scrutiny. Even when a fundamental
right is impinged, [s]trict scrutiny is not strict in
theory, but fatal in fact. Grutter v. Bollinger, 539
U.S. 306, 326, 123 S.Ct. 2325, 156 L.Ed.2d 304
(2003) (quoting Adarand Constructors, Inc. v.
Pea, 515 U.S. 200, 237, 115 S.Ct. 2097, 132
L.Ed.2d 158 (1995)). But the challenged classifica-
tion cannot itself define the scope of the right at is-
sue. The judiciary's obligation is to define the
liberty of all. Casey, 505 U.S. at 850, 112 S.Ct.
2791. Although courts may be tempted to suppose
that the Due Process Clause protects only those
practices, defined at the most specific level, that
were protected against government interference by
other rules of law when the Fourteenth Amendment
was ratified .... such a view would be inconsistent
with our law. Id. at 847 (citation omitted). A
prime part of the history of our Constitution ... is
the story of the extension of constitutional rights
and protections to people once ignored or ex-
cluded. United States v. Virginia, 518 U.S. 515,
557, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996).
3
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The Supreme Court's sexual orientation juris-
prudence further precludes us from defining the
fundamental right at issue in the manner sought by
the appellants. In Lawrence, the Court struck down
as violative of due process a statute that prohibited
sexual conduct between individuals of the same
sex. The Court reversed Bowers v. Hardwick, 478
U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986),
which in upholding a similar statute had framed the
question as whether the Federal Constitution con-
fers a fundamental right upon homosexuals to en-
gage in sodomy and hence invalidates the laws of
the many States that still make such conduct illegal
and have done so for a very long time. Id. at 190.
The Lawrence Court held that this framing fail[ed]
to appreciate the extent of the liberty at stake and
misapprehended the claim of liberty there presen-
ted to it. 539 U.S. at 567, 123 S.Ct. 2472.
The Court acknowledged that for centuries
there have been powerful voices to condemn homo-
sexual conduct as immoral, but held that its oblig-
ation was to define the liberty of all, not to man-
date our own moral code. Id. at 571 (quotation
omitted). [B]efore 1961 all 50 States had outlawed
sodomy, yet [h]istory and tradition are the start-
ing point but not in all cases the ending point of the
substantive due process inquiry. Id. at 572
(quotation omitted). The Court firmly rejected
Bowers' characterization of the liberty at issue: To
say that the issue in Bowers was simply the right to
engage in certain sexual conduct demeans the claim
the individual put forward, just as it would demean
a married couple were it to be said marriage is
simply about the right to have sexual intercourse.
Id. at 567.
The Court's rejection of the manner in which
Bowers described the liberty interest involved is ap-
plicable to the framing of the issue before us. There
was clearly no history of a protected right to
homosexual sodomy, just as there is no lengthy
tradition of same-sex marriage. But the Lawrence
opinion indicates that the approach urged by appel-
lants is too narrow. Just as it was improper to ask
whether there is a right to engage in homosexual
sex, we do not ask whether there is a right to parti-
cipate in same-sex marriage.
FN8
*21 We must also note that Lawrence itself al-
luded to marriage, stating that our laws and tradi-
tion afford constitutional protection to personal de-
cisions relating to marriage, procreation, contracep-
tion, family relationships, child rearing, and educa-
tion. 539 U.S. at 574, 123 S.Ct. 2472. The Court
quoted Casey's holding that matters involving the
most intimate and personal choices a person may
make in a lifetime, choices central to personal dig-
nity and autonomy, are central to the liberty protec-
ted by the Fourteenth Amendment and ruled that
[p]ersons in a homosexual relationship may seek
autonomy for these purposes, just as heterosexual
persons do. Lawrence, 539 U.S. at 574, 123 S.Ct.
2472 (quotation omitted).
The drafters of the Fifth and Fourteenth
Amendments knew times can blind us to certain
truths and later generations can see that laws once
thought necessary and proper in fact serve only to
oppress. As the Constitution endures, persons in
every generation can invoke its principles in their
own search for greater freedom. Id. at 579. A gen-
eration ago, recognition of the fundamental right to
marry as applying to persons of the same sex might
have been unimaginable. A generation ago, the de-
claration by gay and lesbian couples of what may
have been in their hearts would have had to remain
unspoken. Not until contemporary times have laws
stigmatizing or even criminalizing gay men and
women been felled, allowing their relationships to
surface to an open society. As the district court elo-
quently explained, it is not the Constitution that
has changed, but the knowledge of what it means to
be gay or lesbian. Kitchen, 961 F.Supp.2d at 1203.
Consistent with our constitutional tradition of re-
cognizing the liberty of those previously excluded,
we conclude that plaintiffs possess a fundamental
right to marry and to have their marriages recog-
nized.
B
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[22][23] The Due Process Clause forbids the
government to infringe certain fundamental liberty
interests at all, no matter what process is provided,
unless the infringement is narrowly tailored to
serve a compelling state interest. Reno v. Flores,
507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1
(1993) (quotation and emphasis omitted). By the
same token, if a classification impinge[s] upon the
exercise of a fundamental right, the Equal Protec-
tion Clause requires the State to demonstrate that
its classification has been precisely tailored to serve
a compelling governmental interest. Plyler v.
Doe, 457 U.S. 202, 21617, 102 S.Ct. 2382, 72
L.Ed.2d 786 (quotation omitted). Having persuaded
us that the right to marry is a fundamental liberty,
plaintiffs will prevail on their due process and equal
protection claims unless appellants can show that
Amendment 3 survives strict scrutiny.
[24][25] A provision subject to strict scrutiny
cannot rest upon a generalized assertion as to the
classification's relevance to its goals. Richmond
v. J.A. Croson Co., 488 U.S. 469, 500, 109 S.Ct.
706, 102 L.Ed.2d 854 (1989). The purpose of the
narrow tailoring requirement is to ensure that the
means chosen fit the compelling goal so closely
that there is little or no possibility that the motive
for the classification was illegitimate. Grutter,
539 U.S. at 333, 123 S.Ct. 2325 (quotation omit-
ted). Only the most exact connection between jus-
tification and classification survives. Gratz v.
Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156
L.Ed.2d 257 (2003) (quotation omitted).
*22 Appellants advance four justifications for
Amendment 3. They contend it furthers the state's
interests in: (1) fostering a child-centric marriage
culture that encourages parents to subordinate their
own interests to the needs of their children; (2)
children being raised by their biological mothers
and fathersor at least by a married mother and
fatherin a stable home; (3) ensuring adequate
reproduction; and (4) accommodating religious
freedom and reducing the potential for civic strife.
1
[26] We will assume that the first three ra-
tionales asserted by appellants are compelling.
These justifications falter, however, on the means
prong of the strict scrutiny test. Each rests on a link
between marriage and procreation. Appellants con-
tend that Utah has steadfastly sought to reserve
unique social recognition for man-woman marriage
so as to guide as many procreative couples as pos-
sible into the optimal, conjugal childrearing mod-
el; that children suffer when procreation and chil-
drearing occur outside stable man-woman mar-
riages; and that [b]y providing special privileges
and status to couples that are uniquely capable of
producing offspring without biological assistance
from third parties, the State sends a clear if subtle
message to all of its citizens that natural reproduc-
tion is healthy, desirable and highly valued.
(Emphasis omitted.) The common thread running
through each of appellants' first three arguments is
the claim that allowing same-sex couples to marry
would break the critical conceptual link between
marriage and procreation.
The challenged restrictions on the right to
marry and on recognition of otherwise valid mar-
riages, however, do not differentiate between pro-
creative and non-procreative couples. Instead, Utah
citizens may choose a spouse of the opposite sex re-
gardless of the pairing's procreative capacity. The
elderly, those medically unable to conceive, and
those who exercise their fundamental right not to
have biological children are free to marry and have
their out-of-state marriages recognized in Utah, ap-
parently without breaking the conceptual link
between marriage and procreation. The only expli-
cit reference to reproduction in Utah's marriage law
is a provision that allows first cousins to marry if
both parties are 65 years of age or older; or ... if
both parties are 55 years of age or older, upon a
finding by the district court ... that either party is
unable to reproduce. Utah Code 3011(2). This
statute thus extends marriage rights to certain
couples based on a showing of inability to repro-
duce.
FN9
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Such a mismatch between the class identified
by a challenged law and the characteristic allegedly
relevant to the state's interest is precisely the type
of imprecision prohibited by heightened scrutiny.
See Shaw v. Hunt, 517 U.S. 899, 908, 116 S.Ct.
1894, 135 L.Ed.2d 207 (1996) (The means chosen
to accomplish the State's asserted purpose must be
specifically and narrowly framed to accomplish that
purpose. (quotation and alteration omitted)).
Utah's ban on polygamy, for example, is justified
by arguments against polygamy. See Utah Const.
art. III ([P]olygamous or plural marriages are
forever prohibited.); see also Potter v. Murray
City, 760 F.2d 1065, 1070 (10th Cir.1985)
(concluding that the State is justified, by a com-
pelling interest, in upholding and enforcing its ban
on plural marriage based on its commitment to a
system of domestic relations based exclusively
upon the practice of monogamy which is
inextricably woven into the fabric of our society
and the bedrock upon which our culture is built
(quotation omitted)). Similarly, barring minors
from marriage may be justified based on arguments
specific to minors as a class. See Utah Code
3019 (minors may not marry absent parental con-
sent); see also Ginsberg v. New York, 390 U.S. 629,
638, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) ([E]ven
where there is an invasion of protected freedoms
the power of the state to control the conduct of chil-
dren reaches beyond the scope of its authority over
adults. (quotation omitted)); Lee v. Gaufin, 867
P.2d 572, 578 (Utah 1993) ([Minors'] legal incapa-
city is based on fundamental differences between
adults and minors with respect to their physical, in-
tellectual, psychological, and judgmental matur-
ity.). But appellants fail to advance any argument
against same-sex marriage that is based specifically
on its alleged intrinsic ills.
*23 Instead of explaining why same-sex mar-
riage qua same-sex marriage is undesirable, each of
the appellants' justifications rests fundamentally on
a sleight of hand in which same-sex marriage is
used as a proxy for a different characteristic shared
by both same-sex and some opposite-sex couples.
Same-sex marriage must be banned, appellants ar-
gue, because same-sex couples are not naturally
procreative. But the state permits many other types
of non-procreative couples to wed. See Lawrence,
539 U.S. at 605 (Scalia, J., dissenting) ([W]hat
justification could there possibly be for denying the
benefits of marriage to homosexual couples ... ?
Surely not the encouragement of procreation, since
the sterile and the elderly are allowed to marry.).
Same-sex marriage cannot be allowed, appellants
assert, because it is better for children to be raised
by biological parents. Yet adoptive parents, who
have the full panoply of rights and duties of biolo-
gical parents, are free to marry. See Utah Code
78B6139 (adoptive parents have same rights and
duties). As are opposite-sex couples who choose as-
sisted reproduction. See 78B15701 to 707
(providing rules for parental rights in cases of as-
sisted reproduction); 78B15801 to 809
(providing rules governing gestational agreements).
Several recent district court decisions have re-
jected nearly identical state attempts to justify
same-sex marriage bans based on procreative con-
cerns. See Geiger, 2014 U.S. Dist. LEXIS 68171, at
*43 (Procreative potential is not a marriage pre-
requisite.); Latta, 2014 U.S. Dist. LEXIS 66417, at
*68 (Idaho does not condition marriage licenses or
marital benefits on heterosexual couples' ability or
desire to have children. No heterosexual couple
would be denied the right to marry for failure to
demonstrate the intent to procreate.); DeBoer,
2014 U.S. Dist. LEXIS 37274, at *37 (The pre-
requisites for obtaining a marriage license under
Michigan law do not include the ability to have
children....); De Leon, 2014 U.S. Dist. LEXIS
26236, at *44 (This procreation rationale threatens
the legitimacy of marriages involving post-
menopausal women, infertile individuals, and indi-
viduals who choose to refrain from procreating.);
Bostic, 970 F.Supp.2d. at 47879 (The
for-the-children rationale also fails because it
would threaten the legitimacy of marriages in-
volving post-menopausal women, infertile individu-
als, and individuals who choose to refrain from pro-
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creating.).
The Supreme Court has similarly eschewed
such means-ends mismatches. For example, in
Bernal v. Fainter, 467 U.S. 216, 104 S.Ct. 2312, 81
L.Ed.2d 175 (1984), the Court concluded that a
Texas statute prohibiting resident aliens from be-
coming notaries failed strict scrutiny. Id . at
22728. The state argued that the provision was
justified by the state's interest in licensing notaries
familiar with state law. Id. at 227. But the Court re-
jected the state's attempt to justify a classification
based on alienage with an explanation based on
knowledge:
*24 [I]f the State's concern with ensuring a not-
ary's familiarity with state law were truly com-
pelling, one would expect the State to give some
sort of test actually measuring a person's famili-
arity with the law. The State, however, adminis-
ters no such test. To become a notary public in
Texas, one is merely required to fill out an ap-
plication that lists one's name and address and
that answers four questions pertaining to one's
age, citizenship, residency, and criminal record....
Id. (footnote and quotation omitted). Just as a
state cannot justify an alienage classification by ref-
erence to a separate characteristic such as familiar-
ity with state law, appellants cannot assert procreat-
ive potential as a basis to deny marriage rights to
same-sex couples. Under strict scrutiny, the state
must justify the specific means it has chosen rather
than relying on some other characteristic that cor-
relates loosely with the actual restriction at issue.
Utah law sanctions many marriages that share
the characteristicinability to procre-
ateostensibly targeted by Amendment 3. The ab-
sence of narrow tailoring is often revealed by such
under-inclusiveness. In Zablocki, the state attemp-
ted to defend its prohibition on marriage by child-
support debtors on the ground that the statute
prevent[ed] the applicants from incurring new sup-
port obligations. 434 U.S. at 390, 98 S.Ct. 673.
But the challenged provisions, the Court ex-
plained, are grossly underinclusive with respect to
this purpose, since they do not limit in any way new
financial commitments by the applicant other than
those arising out of the contemplated marriage. Id.
Similarly, in Eisenstadt, the Court rejected the ar-
gument that unmarried individuals might be prohib-
ited from using contraceptives based on the view
that contraception is immoral. See 405 U.S. at
45254. The Court held that the State could not,
consistently with the Equal Protection Clause, out-
law distribution to unmarried but not to married
persons. In each case the evil, as perceived by the
State, would be identical, and the underinclusion
would be invidious. Id. at 454; see also Jimenez v.
Weinberger, 417 U.S. 628, 637, 94 S.Ct. 2496, 41
L.Ed.2d 363 (1974) (provision of Social Security
Act allowing certain illegitimate children benefits
under limited circumstances held impermissibly
underinclusive in that it conclusively excludes
some illegitimates in appellants' subclass who are,
in fact, dependent upon their disabled parent
(quotation omitted)).
[27] A state may not impinge upon the exercise
of a fundamental right as to some, but not all, of the
individuals who share a characteristic urged to be
relevant.
The framers of the Constitution knew, and we
should not forget today, that there is no more ef-
fective practical guaranty against arbitrary and
unreasonable government than to require that the
principles of law which officials would impose
upon a minority must be imposed generally. Con-
versely, nothing opens the door to arbitrary ac-
tion so effectively as to allow those officials to
pick and choose only a few to whom they will ap-
ply legislation and thus to escape the political ret-
ribution that might be visited upon them if larger
numbers were affected.
*25 Eisenstadt, 405 U.S. at 454, 92 S.Ct. 1029
(quoting Ry. Express Agency v. New York, 336 U.S.
106, 11213, 69 S.Ct. 463, 93 L.Ed. 533 (1949)
(Jackson, J., concurring)).
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A hypothetical state law restricting the institu-
tion of marriage to only those who are able and
willing to procreate would plainly raise its own
constitutional concerns. See id. at 453 (If the right
of privacy means anything, it is the right of the in-
dividual, married or single, to be free from unwar-
ranted governmental intrusion into matters so fun-
damentally affecting a person as the decision
whether to bear or beget a child. (emphasis omit-
ted)). That question is not before us, and we do not
address it. We merely observe that a state may not
satisfy the narrow tailoring requirement by pointing
to a trait shared by those on both sides of a chal-
lenged classification.
Appellants suggest that banning all non-
procreative individuals from marrying would be im-
practicable. But the fact that the implementation of
a program capable of providing individualized con-
sideration might present administrative challenges
does not render constitutional an otherwise prob-
lematic system. Gratz, 539 U.S. at 275, 123 S.Ct.
2411 (quotation omitted). And the appellants
provide no explanation for Utah Code 3011(2),
which specifically allows a subset of non-
procreative couples to marry. Such a law is irrecon-
cilable with appellants' arguments regarding Utah's
interest in marriage and procreation.
Among the myriad types of non-procreative
couples, only those Utahns who seek to marry a
partner of the same sex are categorically excluded
from the institution of marriage. Only same-sex
couples, appellants claim, need to be excluded to
further the state's interest in communicating the link
between unassisted biological procreation and mar-
riage. As between non-procreative opposite-sex
couples and same-sex couples, we can discern no
meaningful distinction with respect to appellants'
interest in fostering biological reproduction within
marriages.
[28] The Equal Protection Clause is essen-
tially a direction that all persons similarly situated
should be treated alike. City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct.
3249, 87 L.Ed.2d 313 (1985). Extending the bene-
fits and protections of a civil society to some but
not all similarly situated families violates this crit-
ical guarantee.
2
[29] Appellants argue that procreative couples
must be channeled into committed relationships in
order to promote the State's interests in childbear-
ing and optimal childrearing. This argument fails
because the prohibition on same-sex marriage has
an insufficient causal connection to the State's artic-
ulated goals.
It is urged upon us that permitting same-sex
couples to marry would have far-reaching and
drastic consequences for Utah's opposite-sex
couples. Appellants contend that the recognition of
same-sex marriage would result in a parade of hor-
ribles, causing: parents to raise their existing bio-
logical children without the other biological parent
(emphasis omitted); couples conceiving children
without the stability that marriage would otherwise
bring; a substantial decline in the public's interest
in marriage; adults to [forgo] or severely limit the
number of their children based on concerns for their
own convenience; and a busy or irresponsible
parent to believe it's appropriate to sacrifice his
child's welfare to his own needs for independence,
free time, etc.
*26 [30] In some instances, courts must ac-
cord substantial deference to the predictive judg-
ments of legislative authorities. Turner Broad.
Sys., Inc. v. FCC, 520 U.S. 180, 195, 117 S.Ct.
1174, 137 L.Ed.2d 369 (1997) ( Turner II
)(quotation omitted).
FN10
Sound policymaking
often requires legislators to forecast future events
and to anticipate the likely impact of these events
based on deductions and inferences for which com-
plete empirical support may be unavailable. Turn-
er I, 512 U.S. at 622, 114 S.Ct. 2445. But even un-
der more relaxed forms of scrutiny, a challenged
classification must find some footing in the realit-
ies of the subject addressed by the legislation
based on a reasonably conceivable state of facts.
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Heller v. Doe ex rel. Doe, 509 U.S. 312, 320, 321,
113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quotation
omitted).
FN11
We emphatically agree with the numerous
cases decided since Windsor that it is wholly illo-
gical to believe that state recognition of the love
and commitment between same-sex couples will al-
ter the most intimate and personal decisions of op-
posite-sex couples. As the district court held,
[t]here is no reason to believe that Amendment 3
has any effect on the choices of couples to have or
raise children, whether they are opposite-sex
couples or same-sex couples. Kitchen, 961
F.Supp.2d at 1212. This was the first of several fed-
eral court decisions reaching the same conclusion.
See Geiger, 2014 U.S. Dist. LEXIS 68171, at *43
([A]ny governmental interest in responsible pro-
creation is not advanced by denying marriage to
gay a[nd] lesbian couples. There is no logical nexus
between the interest and the exclusion.); DeBoer,
2014 U.S. Dist. LEXIS 37274, at *40 (Nor does
prohibiting same-sex marriage increase the number
of heterosexual marriages or the number of children
raised by heterosexual parents.); De Leon, 2014
U.S. Dist. LEXIS 26236, at *4243 (Defendants
have failed to establish how recognizing a same-sex
marriage can influence, if at all, whether hetero-
sexual couples will marry, or how other individuals
will raise their families.); Bostic, 970 F.Supp.2d at
478 ([R]ecognizing a gay individual's fundamental
right to marry can in no way influence whether oth-
er individuals will marry, or how other individuals
will raise families.); Bishop, 962 F.Supp.2d at
1291 (Marriage is incentivized for naturally pro-
creative couples to precisely the same extent re-
gardless of whether same-sex couples (or other
non-procreative couples) are included.).
Appellants liken the recognition of same-sex
marriage to another change in marriage law, ar-
guing that there is a compelling parallel between
the unintended consequences of no-fault divorce,
which harmed children by weakening marriage and
fatherhood, and the harms that will likely result
from permitting same-sex couples to marry. We
cannot accept appellants' claim that allowing same-
sex couples to marry is analogous to a law that per-
mits married couples to divorce. The former causes
an increase in the number of married individuals,
whereas the latter decreases the number of mar-
riages in a state. See Wolf, 2014 U.S. Dist. LEXIS
77125, at *117 ([T]he no-fault divorce rules that
defendants cite actually undermine their argument
by showing that [the state] already supports an
adult-centric notion of marriage to some extent by
allowing easy divorce even when the couple has
children. (emphasis omitted)).
*27 Setting aside the implausibility of the com-
parison, we observe that Utah has adopted precisely
the no-fault divorce regime that appellants decry in
their briefing. See Thronson v. Thronson, 810 P.2d
428, 431 n. 3 (Utah Ct.App.1991) (Utah added
irreconcilable differences' to its list of nine fault-
based grounds [for divorce] in 1987.); Haumont v.
Haumont, 793 P.2d 421, 427 (Utah Ct.App.1990)
(irreconcilable differences subsection is intended
to be a no-fault provision); see also Utah Code
3031(3)(h) (current location of irreconcilable dif-
ferences provision). Utah's adoption of one provi-
sion that it considers problematic with respect to
the communicative function of marriage (no-fault
divorce), but not another (same-sex marriage), un-
dermines its claim that Amendment 3 is narrowly
tailored to its desired ends. Through its no-fault di-
vorce statute, Utah allows a spousethe bedrock
component of the marital unitto leave his family
whenever he wants and for whatever reason moves
him. It is difficult to imagine how the State's refusal
to recognize same-sex marriage undercuts in any
meaningful way a state message of support for mar-
ital constancy given its adoption of a divorce policy
that conveys a message of indifference to marital
longevity.
A state's interest in developing and sustaining
committed relationships between childbearing
couples is simply not connected to its recognition
of same-sex marriages. Regardless of whether some
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individuals are denied the right to choose their
spouse, the same set of duties, responsibilities, and
benefits set forth under Utah law apply to those nat-
urally procreative pairings touted by appellants. We
cannot imagine a scenario under which recognizing
same-sex marriages would affect the decision of a
member of an opposite-sex couple to have a child,
to marry or stay married to a partner, or to make
personal sacrifices for a child. We agree with the
district court that such decisions, among the most
intimate and personal ... a person may make in a
lifetime, choices central to personal dignity and
autonomy, Casey, 505 U.S. at 851, 112 S.Ct. 2791,
are unrelated to the government's treatment of
same-sex marriage. See Kitchen, 961 F.Supp.2d at
1212. To the extent that they are related, the rela-
tion exists because the State of Utah has chosen to
burden the ability of one class of citizens to make
such intimate and personal choices. See Utah Code
78B6117(3) (prohibiting adoption by a person
who is cohabitating in a relationship that is not a
legally valid and binding marriage under the laws
of the state and thus forcing same-sex couples to
choose between adoption and marriage).
3
[31] Appellants also argue that Utah's ban on
same-sex marriage is justified by gendered parent-
ing preferences. They contend that even for famil-
ies that are not biologically connected, the state has
an interest in limiting marriage to opposite-sex
couples because men and women parent children
differently.
*28 But a prohibition on same-sex marriage is
not narrowly tailored toward the goal of encour-
aging gendered parenting styles. The state does not
restrict the right to marry or its recognition of mar-
riage based on compliance with any set of parenting
roles, or even parenting quality. See Latta, 2014
U.S. Dist. LEXIS 66417, at *68 (Idaho does not
withhold marriage licenses from heterosexual
couples who might be, or are, non-optimal par-
ents.); DeBoer, 2014 U.S. Dist. LEXIS 37274, at
*37 (The prerequisites for obtaining a marriage li-
cense under Michigan law do not include ... a re-
quirement to raise [children] in any particular fam-
ily structure, or the prospect of achieving certain
outcomes' for children.); Bishop, 962 F.Supp.2d
at 1295 (With respect to marriage licenses, the
State has already opened the courthouse doors to
opposite-sex couples without any moral, procreat-
ive, parenting, or fidelity requirements.). Instead,
every same-sex couple, regardless of parenting
style, is barred from marriage and every opposite-
sex couple, irrespective of parenting style, is per-
mitted to marry.
The state's child custody regime also belies ad-
herence to a rigidly gendered view of parents' abil-
ities. See 30310(1)(a) (In determining any
form of custody, including a change in custody, the
court shall consider the best interests of the child
without preference for either the mother or father
solely because of the biological sex of the par-
ent....). As with appellants' asserted procreation ra-
tionale, we are offered no coherent explanation for
the state's decision to impose disabilities upon only
one subclass of those sharing a claimed deficiency.
The Supreme Court has previously rejected
state attempts to classify parents with such a broad
brush. In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct.
1208, 31 L.Ed.2d 551 (1972), the Court considered
the validity of a state law that made children of un-
wed parents wards of the state upon death of the
mother. Id. at 646. The state defended this provi-
sion by asserting that unmarried fathers can reas-
onably be presumed to be unqualified to raise their
children. Id. at 653. But all unmarried fathers are
not in this category; some are wholly suited to have
custody of their children. Id. at 654. Just as the
state law at issue in Stanley needlessly risk[ed]
running roughshod over the important interests of
both parent and child, id. at 657, Amendment 3
cannot be justified by the impermissibly overbroad
assumption that any opposite-sex couple is prefer-
able to any same-sex couple. Cf. Skinner, 316 U.S.
at 545, 62 S.Ct. 1110 (A law which condemns,
without hearing, all the individuals of a class to so
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harsh a measure as the present because some or
even many merit condemnation, is lacking in the
first principles of due process.).
Appellants have retreated from any categorical
conclusions regarding the quality of same-sex par-
enting. Although they presented to the district court
voluminous scholarship addressing various parent-
ing issues, they now take the position that the social
science is unsettled. See Rule 28(j) Letter at 2, No.
134178 (10th Cir., filed Apr. 9, 2014)
(acknowledging that appellants' main scientific au-
thority on this issue cannot be viewed as conclus-
ively establishing that raising a child in a same-sex
household produces outcomes that are inferior to
those produced by man-woman parenting arrange-
ments). At oral argument, counsel for appellants
stated that the bottom line regarding the con-
sequences of same-sex parenting is that the sci-
ence is inconclusive.
*29 [32] Although we assume that the State's
asserted interest in biological parenting is compel-
ling, this assumption does not require us to accept
appellants' related arguments on faith. We cannot
embrace the contention that children raised by op-
posite-sex parents fare better than children raised
by same-sex parentsto the extent appellants con-
tinue to press itin light of their representations to
this court. Appellants' only reasoning in this regard
is that there might be advantages in one parenting
arrangement that are lacking in the other. On strict
scrutiny, an argument based only on pure specula-
tion and conjecture cannot carry the day. See Wis-
consin v. Yoder, 406 U.S. 205, 224, 92 S.Ct. 1526,
32 L.Ed.2d 15 (1972) (striking down state action on
strict scrutiny where the argument for the interest
was highly speculative and had no specific evid-
ence to support it). Appellants' tepid defense of
their parenting theory further highlights the loose-
ness of the fit between the State's chosen means and
appellants' asserted end.
Against the State's claim of uncertainty we
must weigh the harm Amendment 3 currently works
against the children of same-sex couples. See
Obergefell, 962 F.Supp.2d at 995 (same-sex mar-
riage bans harm[ ] the children of same-sex
couples who are denied the protection and stability
of having parents who are legally married). If ap-
pellants cannot tell us with any degree of confid-
ence that they believe opposite-sex parenting pro-
duces better outcomes on the wholeand they
evidently cannotthey fail to justify this palpable
harm that the Supreme Court has unequivocally
condemned. The Windsor majority, stressing the
same detrimental impacts of DOMA, explained that
the refusal to recognize same-sex marriages brings
financial harm to children of same-sex couples
and makes it even more difficult for the children
[of same-sex couples] to understand the integrity
and closeness of their own family and its concord
with other families in their community and in their
daily lives. 133 S.Ct. at 2694, 2695.
Windsor thus indicates that same-sex marriage
restrictions communicate to children the message
that same-sex parents are less deserving of family
recognition than other parents. See id. at 2696
(DOMA instructs all federal officials, and indeed
all persons with whom same-sex couples interact,
including their own children, that their marriage is
less worthy than the marriages of others.). Appel-
lants rely heavily on their predictions that Amend-
ment 3 will encourage adults to make various de-
cisions that benefit society. But regardless of the
signals the law sends to adults, Amendment 3, like
DOMA, conveys a harmful message to the children
of same-sex couples. These collateral consequences
further suggest that the fit between the means and
the end is insufficient to survive strict scrutiny. See
Latta, 2014 U.S. Dist. LEXIS 66417, at *74
(same-sex marriage bans are dramatically underin-
clusive because they deny resources to children
whose parents happen to be homosexual); De Le-
on, 2014 U.S. Dist. LEXIS 26236, at *42 ([F]ar
from encouraging a stable environment for chil-
drearing, [same sex marriage bans] den [y] children
of same-sex parents the protections and stability
they would enjoy if their parents could marry.);
Bostic, 970 F.Supp.2d at 478 ([N]eedlessly stig-
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matizing and humiliating children who are being
raised by the loving couples targeted by Virginia's
Marriage Laws betrays [the state's interest in child
welfare].).
FN12
4
*30 [33] Appellants' fourth and final justifica-
tion for Amendment 3, accommodating religious
freedom and reducing the potential for civic strife,
fails for reasons independent of the foregoing. Ap-
pellants contend that a prohibition on same-sex
marriage is essential to preserving social harmony
in the State and that allowing same-sex couples to
marry would create the potential for religion-re-
lated strife.
Even assuming that appellants are correct in
predicting that some substantial degree of discord
will follow state recognition of same-sex marriage,
the Supreme Court has repeatedly held that public
opposition cannot provide cover for a violation of
fundamental rights. See, e.g., Palmer v. Thompson,
403 U.S. 217, 226, 91 S.Ct. 1940, 29 L.Ed.2d 438
(1971) (Citizens may not be compelled to forgo
their constitutional rights because officials fear
public hostility....). In Watson v. City of Memphis,
373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529
(1963), for example, the Court rejected a city's
claim that community confusion and turmoil per-
mitted it to delay desegregation of its public parks.
Id. at 535. And in Cleburne, the Court held that
negative attitudes toward the class at issue
(intellectually impaired individuals) are not per-
missible bases for treating a home for the mentally
retarded differently. 473 U.S. at 448, 105 S.Ct.
3249. It is plain that the electorate as a whole,
whether by referendum or otherwise, could not or-
der city action violative of the Equal Protection
Clause, and the city may not avoid the strictures of
that Clause by deferring to the wishes or objections
of some fraction of the body politic. Id. (quotation
omitted).
Appellants acknowledge that a state may not
invoke concerns about religious freedom or reli-
gion-related social strife as a basis for denying
rights otherwise guaranteed by the Constitution.
But they argue that the social and religious strife ar-
gument qualifies as legitimate because a funda-
mental right is not at issue in this case. Because we
have rejected appellants' contention on this point,
their fourth justification necessarily fails.
We also emphasize, as did the district court,
that today's decision relates solely to civil marriage.
See Kitchen, 961 F.Supp.2d at 1214 ([T]he court
notes that its decision does not mandate any change
for religious institutions, which may continue to ex-
press their own moral viewpoints and define their
own traditions about marriage.). Plaintiffs must be
accorded the same legal status presently granted to
married couples, but religious institutions remain as
free as they always have been to practice their sac-
raments and traditions as they see fit. We respect
the views advanced by members of various reli-
gious communities and their discussions of the
theological history of marriage. And we continue to
recognize the right of the various religions to define
marriage according to their moral, historical, and
ethical precepts. Our opinion does not intrude into
that domain or the exercise of religious principles
in this arena. The right of an officiant to perform or
decline to perform a religious ceremony is unaf-
fected by today's ruling. See Griego v. Oliver, 316
P.3d 865, 871 (N.M.2013) (Our holding [that
same-sex marriage is required by the state constitu-
tion] will not interfere with the religious freedom of
religious organizations or clergy because (1) no re-
ligious organization will have to change its policies
to accommodate same-gender couples, and (2) no
religious clergy will be required to solemnize a
marriage in contravention of his or her religious be-
liefs.); Kerrigan v. Comm'r of Pub. Health, 289
Conn. 135, 957 A.2d 407, 475 (Conn.2008)
(Religious freedom will not be jeopardized by the
marriage of same sex couples because religious or-
ganizations that oppose same sex marriage as irre-
concilable with their beliefs will not be required to
perform same sex marriages or otherwise to con-
done same sex marriage or relations.); In re Mar-
riage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at
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45152 ([A]ffording same-sex couples the oppor-
tunity to obtain the designation of marriage will not
impinge upon the religious freedom of any religious
organization, official, or any other person; no reli-
gion will be required to change its religious policies
or practices with regard to same-sex couples, and
no religious officiant will be required to solemnize
a marriage in contravention of his or her religious
beliefs.).
FN13
C
*31 Appellants raise a number of prudential
concerns in addition to the four legal justifications
discussed above. They stress the value of democrat-
ic decision-making and the benefits of federalism in
allowing states to serve as laboratories for the rules
concerning marriage. As a matter of policy, it might
well be preferable to allow the national debate on
same-sex marriage to play out through legislative
and democratic channels. Some will no doubt view
today's decision as robbing the winners of an hon-
est victory, and the losers of the peace that comes
from a fair defeat. Windsor, 133 S.Ct. at 2711
(Scalia, J., dissenting).
[34][35] But the judiciary is not empowered to
pick and choose the timing of its decisions. It is a
judge's duty to decide all cases within his jurisdic-
tion that are brought before him, including contro-
versial cases that arouse the most intense feelings in
the litigants. Pierson v. Ray, 386 U.S. 547, 554, 87
S.Ct. 1213, 18 L.Ed.2d 288 (1967). Plaintiffs in this
case have convinced us that Amendment 3 violates
their fundamental right to marry and to have their
marriages recognized. We may not deny them relief
based on a mere preference that their arguments be
settled elsewhere. Nor may we defer to majority
will in dealing with matters so central to personal
autonomy. The protection and exercise of funda-
mental rights are not matters for opinion polls or
the ballot box. One's right to life, liberty, and
property, to free speech, a free press, freedom of
worship and assembly, and other fundamental
rights may not be submitted to vote; they depend on
the outcome of no elections. W. Va. State Bd. of
Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct.
1178, 87 L.Ed. 1628 (1943).
Similarly, the experimental value of federalism
cannot overcome plaintiffs' rights to due process
and equal protection. Despite Windsor's emphasis
on state authority over marriage, the Court re-
peatedly tempered its pronouncements with the
caveat that [s]tate laws defining and regulating
marriage, of course, must respect the constitutional
rights of persons. 133 S.Ct. at 2691; see also id. at
2692 ([T]he incidents, benefits, and obligations of
marriage are uniform for all married couples within
each State, though they may vary, subject to consti-
tutional guarantees, from one State to the next.);
id. (The States' interest in defining and regulating
the marital relation, subject to constitutional guar-
antees, stems from the understanding that marriage
is more than a routine classification for purposes of
certain statutory benefits.). Our federalist structure
is designed to secure[ ] to citizens the liberties that
derive from the diffusion of sovereign power
rather than to limit fundamental freedoms. New
York v. United States, 505 U.S. 144, 181, 112 S.Ct.
2408, 120 L.Ed.2d 120 (1992) (quotation omitted).
Appellants also suggest that today's ruling will
place courts on a slippery slope towards recogniz-
ing other forms of currently prohibited marriages.
Although we have no occasion to weigh in on the
validity of laws not challenged in this case, same-
sex marriage prohibitions differ in at least one key
respect from the types of marriages the appellants
identify: Unlike polygamous or incestuous mar-
riages, the Supreme Court has explicitly extended
constitutional protection to intimate same-sex rela-
tionships, see Lawrence, 539 U.S. at 567, 123 S.Ct.
2472, and to the public manifestations of those rela-
tionships, Windsor, 133 S.Ct. at 2695. Our holding
that plaintiffs seek to exercise a fundamental right
turns in large measure on this jurisprudential found-
ation that does not exist as to the hypothetical chal-
lenges identified by appellants.
*32 Another slippery-slope argument brought
forward by appellants is that federal constitutional
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protection for same-sex marriage might lead to the
wholesale privatization of marriage through the
enactment of a civil-union regime for all couples,
with religious and other organizations being free to
offer the title of marriage as they see fit. But
they provide no authority for the proposition that an
unconstitutional restriction on access to an institu-
tion can be saved by the possibility that its priv-
ilegesor the name attached to themcould be
withdrawn from everyone. If a state were entitled to
defend the deprivation of fundamental rights in this
way, it might always make the same threat.
Lastly, appellants express concern that a ruling
in plaintiffs' favor will unnecessarily brand those
who oppose same-sex marriage as intolerant. We in
no way endorse such a view and actively discour-
age any such reading of today's opinion. Although a
majority's traditional[ ] view[ of] a particular prac-
tice as immoral is not a sufficient reason for up-
holding a law prohibiting the practice, Lawrence,
539 U.S. at 577, 123 S.Ct. 2472 (quoting Bowers,
478 U.S. at 216, 106 S.Ct. 2841 (Stevens, J., dis-
senting)), for many individuals, religious precepts
concerning intimate choices constitute profound
and deep convictions accepted as ethical and moral
principles to which they aspire and which thus de-
termine the course of their lives, id. at 571. Courts
do not sit in judgment of the hearts and minds of
the citizenry. Our conclusion that plaintiffs possess
a fundamental right to marry and to have their mar-
riages recognized in no way impugns the integrity
or the good-faith beliefs of those who supported
Amendment 3. See Wolf, 2014 U.S. Dist. LEXIS
77125, at *45 (In reaching [the] decision [that a
same-sex marriage ban is unconstitutional, there is
no need] to disparage the legislators and citizens
who voted in good conscience for the marriage
amendment.).
V
In summary, we hold that under the Due Pro-
cess and Equal Protection Clauses of the United
States Constitution, those who wish to marry a per-
son of the same sex are entitled to exercise the
same fundamental right as is recognized for persons
who wish to marry a person of the opposite sex, and
that Amendment 3 and similar statutory enactments
do not withstand constitutional scrutiny. We AF-
FIRM the judgment of the district court.
In consideration of the Supreme Court's de-
cision to stay the district court's injunction pending
the appeal to our circuit, we conclude it is appropri-
ate to STAY our mandate pending the disposition
of any subsequently filed petition for writ of certi-
orari.
FN14
See Fed. R.App. P. 41(d)(2) (allowing
circuit courts to stay their mandates pending the
completion of certiorari proceedings); Massachu-
setts v. U.S. Dep't of Health & Human Servs., 682
F.3d at 17 (declaring DOMA 3 unconstitutional
and staying the mandate in the same opinion); Nat-
ural Res. Def. Council, Inc. v. Winter, 518 F.3d
704, 705 (9th Cir.2008) (issuing a stay sua sponte);
see also Latta v. Otter, No. 1435420, Order, at 2
(9th Cir. May 20, 2014) (unpublished) (relying on
the Supreme Court's Kitchen order to stay a district
court injunction against a same-sex marriage ban);
DeBoer v. Snyder, No. 141341, Order, at 1 (6th
Cir. Mar. 25, 2014) (unpublished) (same).
FN15
*33 It is so ordered.
KELLY, Circuit Judge, concurring in part and dis-
senting in part.
I concur with the court's result that Plaintiffs
have standing to challenge the provisions at issue,
FN1
that the Salt Lake County Clerk, Governor,
and Attorney General were proper Defendants, and
that the appeal may proceed despite the absence of
the Salt Lake County Clerk. I disagree with this
court's conclusions that (1) Baker v. Nelson, 409
U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), need
not be followed and that (2) the liberty guaranteed
by the Fourteenth Amendment includes a funda-
mental right which requires Utah to extend mar-
riage to same-gender couples and recognize same-
gender marriages from other states. Because I con-
clude that there is no such fundamental right, it is
unnecessary to consider whether Utah's justifica-
tions for retaining its repeatedly-enacted concept of
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marriage pass heightened scrutiny. In my view, the
provisions should be analyzed under traditional
equal protection analysis and upheld as rationally
related to (1) responsible procreation, (2) effective
parenting, and (3) the desire to proceed cautiously
in this evolving area.
Same-sex marriage presents a highly emotion-
al and important question of public policybut not
a difficult question of constitutional law, at least
when it comes to the States' right to enact laws pre-
serving or altering the traditional composition of
marriage. See United States v. Windsor, U.S.
, , 133 S.Ct. 2675, 2714, 186 L.Ed.2d 808
(2013) (Alito, J., dissenting). The Constitution is si-
lent on the regulation of marriage; accordingly, that
power is reserved to the States, albeit consistent
with federal constitutional guarantees. See Windsor,
133 S.Ct. at 269192. And while the Court has re-
cognized a fundamental right to marriage, every de-
cision vindicating that right has involved two per-
sons of the opposite gender. Indeed, the Court has
been less than solicitious of plural marriages or
polygamy.
If the States are the laboratories of democracy,
requiring every state to recognize same-gender uni-
onscontrary to the views of its electorate and rep-
resentativesturns the notion of a limited national
government on its head. See Bond v. United States,
U.S. , , 131 S.Ct. 2355, 2364, 180
L.Ed.2d 269 (2011) (explaining that federalism al-
lows for state responses instead of relying upon the
eventuality of a federal policy). Marriage is an im-
portant social institution commonly understood to
protect this and future generations. That states sin-
cerely differ about the best way to do this
(including whether to extend marriage to same-
gender couples) is inevitable. See id.; Utah Code.
3011, 2. And given the recent advent of
same-gender marriage, Windsor, 133 S.Ct. at 2689,
it is hardly remarkable that a state might codify
what was once implicit. For the following reasons, I
respectfully dissent.
A. Baker v. Nelson
The starting point for a claim that same-gender
marriage is required by the Constitution must be the
Constitution. Because the Constitution does not
speak to the issue of same-gender marriageor
marriage at allthe next step is to review the Su-
preme Court's decisions on the issue. And on the
question presented here, the Supreme Court has
already spoken. In Baker v. Nelson, the Court dis-
missed an appeal asking whether the Constitution
forces a state to recognize same-gender marriage
for want of a substantial federal question. 409
U.S. 810 (1972). That dismissal should foreclose
the Plaintiffs' claims, at least in this court.
*34 The petitioners in Baker argued that Min-
nesota's marriage scheme violated due process and
equal protection. Jurisdictional Statement, No.
711027, at 319 (Oct. Term 1972). The Minnesota
Supreme Court unambiguously rejected the notion
that same-gender marriage was a fundamental right,
interpreting Loving v. Virginia as resting upon the
Constitution's prohibition of race discrimination.
Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185,
187 (Minn.1971). Absent irrational or invidious
discrimination, a theoretically imperfect marriage
classification does not offend equal protection or
due process under the Fourteenth Amendment. Id.
The import of Baker to this case is clear: neither
due process nor equal protection bar states from de-
fining marriage as between one man and one wo-
man, or require states to extend marriage to same-
gender couples.
A summary dismissal is a merits determination
and a lower federal court should not come to an op-
posite conclusion on the issues presented. Mandel
v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53
L.Ed.2d 199 (1977) (per curiam). The district court
relied upon a statement in Hicks v. Miranda that a
question remains unsubstantial unless doctrinal de-
velopments may suggest otherwise. 422 U.S. 332,
344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). On this
point, Miranda held that a summary dismissal could
not be disregarded. Id. at 34445. Were there any
doubt, the doctrinal developments exception was
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followed by a statement that summary decisions are
binding on lower courts until the Court notifies oth-
erwise. Id.
The rule is clear: if a Supreme Court case is
directly on point, a lower federal court should rely
on it so the Supreme Court may exercise the
prerogative of overruling its own decisions.
Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d
526 (1989). The Supreme Court is certainly free to
re-examine its precedents, but it discourages lower
courts from concluding it has overruled earlier pre-
cedent by implication. Agostini v. Felton, 521 U.S.
203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997)
(reaffirming Rodriguez de Quijas ). The majority
construes the unequivocal statement in Rodriguez
de Quijas (and presumably Agostini ) as inapplic-
able because it appeared in a merits disposition and
accordingly did not overrule the doctrinal devel-
opments rule as to summary dispositions. But that
is just another way of stating that a summary dis-
position is not a merits disposition, which is pat-
ently incorrect. Though the Supreme Court may not
accord Baker the same deference as an opinion
after briefing and argument, it is nonetheless pre-
cedential for this court. Caban v. Mohammed, 441
U.S. 380, 390 n. 9, 99 S.Ct. 1760, 60 L.Ed.2d 297
(1979). Summary dismissals are merits rulings as to
those questions raised in the jurisdictional state-
ment. Washington v. Confederated Bands & Tribes
of the Yakima Indian Nation, 439 U.S. 463, 476 n.
20, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979).
Plaintiffs argue that Baker did not address the
precise issues here because [t]he judgment af-
firmed in Baker addressed whether same-sex
couples were denied equal protection and due pro-
cess by Minnesota's marriage statutea measure
that did not indicate on its face whether same-sex
couples could marry and that had not been enacted
for the express purpose of excluding same-sex
couples from marriage. Aplee. Br. 23. They fur-
ther argue that Utah's non-recognition of Plaintiffs
Archer and Call's Iowa marriage distinguishes this
case from Baker. Neither reason is persuasive. The
fact remains that the Minnesota Supreme Court in-
terpreted the state statute (at the time) to not require
same-gender marriage and decided largely the same
federal constitutional questions presented here. To
the extent there is no right to same-gender marriage
emanating from the Fourteenth Amendment, a state
should not be compelled to recognize it. See Utah
Code 3014(1) (declining to recognize foreign
same-gender marriages).
*35 Regardless, subsequent doctrinal develop-
ments have not undermined the Court's traditional
deference to the States in the field of domestic rela-
tions. To be sure, the district court concluded other-
wise based upon the following Supreme Court de-
velopments: (1) gender becoming a quasi-suspect
class, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451,
50 L.Ed.2d 397 (1976); Frontiero v. Richardson,
411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583
(1973), (2) invalidation of a state law repealing and
barring sexual-orientation protection, Romer v.
Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d
855 (1996), (3) invalidation of a statute that pro-
scribed same-gender sexual relations insofar as
private conduct among consenting adults, Lawrence
v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156
L.Ed.2d 508 (2003), (4) declaring the Defense of
Marriage Act's (DOMA) definition of marriage
and spouse to exclude same-gender marriages as
violative of Fifth Amendment due process and
equal protection principles, United States v. Wind-
sor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d
808 (2013). Kitchen v. Herbert, 961 F.Supp.2d
1181, 119495 (D.Utah 2013). This court relies on
Lawrence and Windsor as justification for not de-
ferring to Baker. As discussed below, none of these
developments can override our obligation to follow
(rather than lead) on the issue of whether a state is
required to extend marriage to same-gender
couples. At best, the developments relied upon are
ambiguous and certainly do not compel the conclu-
sion that the Supreme Court will interpret the Four-
teenth Amendment to require every state to extend
marriage to same-gender couples, regardless of
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contrary state law. See Massachusetts. v. U.S. Dep't
of Health & Human Servs., 682 F.3d 1, 8 (1st
Cir.2012) (rejecting the idea that Romer or
Lawrence require states to permit same-gender mar-
riage and that the Supreme Court has repudiated
Baker ).
Because I have not persuaded the panel, I pro-
ceed to analyze the remaining issues.
B. Equal ProtectionGender Discrimination
Plaintiffs argue that defining marriage to ex-
clude same-gender unions is based upon gender ste-
reotyping where the law presumed women to be
legally, socially, and financially dependent upon
men. Aplee. Br. at 5563. But this case involves
no disparate treatment based upon gender that
might invite intermediate scrutiny. See Craig, 429
U.S. at 197, 97 S.Ct. 451 (such scrutiny requires
that the law be substantially related to furthering
important governmental interests). Utah's constitu-
tional and statutory provisions, Utah Const. art. I,
29 and Utah Code 3012(5), 3014.1, enacted
in 1977 and 2004, simply define marriage as the
legal union of a man and a woman and do not re-
cognize any other domestic union, i.e., same-gender
marriage. They apply to same-gender male couples
and same-gender female couples alike.
Disparate treatment of men and women as a
class is an essential element of an equal protection,
gender discrimination claim. See United States v.
Virginia, 518 U.S. 515, 51920, 116 S.Ct. 2264,
135 L.Ed.2d 735 (1996) (women excluded from at-
tending VMI); Miss. Univ. for Women v. Hogan,
458 U.S. 718, 71923, 102 S.Ct. 3331, 73 L.Ed.2d
1090 (1982) (men excluded from attending nursing
school); Craig, 429 U.S. at 19192, 97 S.Ct. 451
(women allowed to buy beer at younger age than
men); Frontiero, 411 U.S. at 67879 (women seek-
ing military benefits required to demonstrate the
spouse's economic dependency, but not requiring
the same of men); Reed v. Reed, 404 U.S. 7273
(1971) (automatic preference for men over women
for estate administration). Plaintiffs cannot show
that either gender as a class is disadvantaged by the
Utah provisions defining marriage.
C. Equal ProtectionSexual Orientation
*36 Plaintiffs argue that defining marriage to
exclude same-gender unions is a form of sexual ori-
entation discrimination triggering heightened scru-
tiny. Aplee. Br. at 4855. The Supreme Court has
yet to decide the level of scrutiny attendant to clas-
sifications based upon sexual orientation, see Wind-
sor, 133 S.Ct. at 268384, but this court has rejec-
ted heightened scrutiny, see PriceCornelison v.
Brooks, 524 F.3d 1103, 1113 n. 9 (10th Cir.2008);
Walmer v. U.S. Dep't of Defense, 52 F.3d 851, 854
(10th Cir.1995); Jantz v. Muci, 976 F.2d 623, 630
(10th Cir.1992). Although Plaintiffs argue that our
precedent does not justify such a position, one pan-
el of this court may not overrule another absent su-
perseding en banc review or a Supreme Court de-
cision invalidating our precedent. Rezaq v. Nalley,
677 F.3d 1001, 1012 n. 5 (10th Cir.2012). Neither
has occurred here.
D. Due ProcessFundamental Right
The Plaintiffs contend that they are not relying
upon a fundamental right to same-gender marriage,
but instead a fundamental right to marriage simpli-
citer. Aplee. Br. at 16, 3339. They contend that
freedom to marry is self-defining and without refer-
ence to those who assert it or have been excluded
from it. Id. at 34. Of course, the difficulty with this
is that marriage does not exist in a vacuum; it is a
public institution, and states have the right to regu-
late it. That right necessarily encompasses the right
to limit marriage and decline to recognize mar-
riages which would be prohibited; were the rule as
the Plaintiffs contend, that marriage is a freestand-
ing right, Utah's prohibition on bigamy would be an
invalid restriction, see Utah Const. art. III; see also
Utah Code 3012(1) (bigamy), 3014(1)
(non-recognition of such marriages solemnized
elsewhere), 767101 (criminalizing bigamy),
767101.5 (criminalizing child bigamy). That pro-
position has been soundly rejected. Reynolds, 98
U.S. at 16667; Bronson v. Swensen, 500 F.3d
1099, 11051106 (10th Cir.2007); see also Paris
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Adult Theatre I v. Slaton, 413 U.S. 49, 68 n. 15, 93
S.Ct. 2628, 37 L.Ed.2d 446 (1973). Likewise, were
marriage a freestanding right without reference to
the parties, Utah would be hard-pressed to prohibit
marriages for minors under 15 and impose condi-
tions for other minors. Utah Code 3012(3),
3019.
As noted, the Court has recognized a funda-
mental right to marriage protected by substantive
due process. Turner, 482 U.S. at 94, 107 S.Ct.
2254; Zablocki, 434 U.S. at 38486, 98 S.Ct. 673;
Loving, 388 U.S. at 12. As such, restrictions on the
right are subject to strict scrutiny: they must be nar-
rowly tailored to further compelling state interests.
Zablocki, 434 U.S. at 388, 98 S.Ct. 673; Loving,
388 U.S. at 1112. But it is a stretch to cast those
cases in support of a fundamental right to same-
gender marriage.
Here's why. First, same-gender marriage is a
very recent phenomenon; for centuries marriage
has been universally understood to require two per-
sons of opposite gender. Windsor, 133 S.Ct. at
2689. Indeed, this case is better understood as an
effort to extend marriage to persons of the same
gender by redefining marriage. Second, nothing
suggests that the term marriage as used in those
cases had any meaning other than what was com-
monly understood for centuries. Courts do not de-
cide what is not before them. That the Court did not
refer to a right to interracial marriage, or a right
to inmate marriage cannot obscure what was de-
cided; the Supreme Court announced a right with
objective meaning and contours. Third, given the
ephemeral nature of substantive due process, recog-
nition of fundamental rights requires a right deeply
rooted in United States history and tradition, and a
careful and precise definition of the right at issue.
Washington v. Glucksberg, 521 U.S. 702, 72021,
117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Thus,
contrary to Plaintiffs' contention, Aplee. Br. at 34
n.5, it is entirely appropriate for the State to charac-
terize the right sought as one of same-gender mar-
riage and focus attention on its recent develop-
ment. Perhaps someday same-gender marriage will
become part of this country's history and tradition,
but that is not a choice this court should make.
*37 Much of this court's opinion is dedicated to
finding otherwise by separating marriage from pro-
creation and expounding on how other substantive
due process and privacy concepts, including per-
sonal autonomy, dignity, family relationships, re-
productive rights, and the like, are the antecedents
and complements of same-gender marriage. But we
should be reluctant to announce a fundamental right
by implication. Not only is that beyond our power,
it is completely arbitrary and impractical; as in this
case, a state should be allowed to adopt change if
desired and implement it. As these proceedings
demonstrate, the State has a much better handle on
what statutory and administrative provisions are in-
volved, and what is necessary to implement change,
than we do.
Nothing in the Court's trilogy of cases, Romer,
Lawrence, or Windsor, points to a different result.
Though the cases may afford constitutional protec-
tion for certain moral and sexual choices of same
gender couples, Windsor, 133 S.Ct. at 2694, they
simply have not created a fundamental right to
same-gender marriage, let alone heightened scru-
tiny for any provision which may be implicated.
Romer is an equal protection case invalidating a
Colorado constitutional provision which effected a
[s]weeping and comprehensive change in the law
by permanently withdrawing and barring anti-
discrimination protections against this particular
group. 517 U.S. at 627, 116 S.Ct. 1620; see
PriceCornelison, 524 F.3d at 1113 n. 9 (noting
that Romer used a rational basis test). Lawrence
also is an equal protection case that invalidated a
Texas statute proscribing only same-gender sexual
contact, no matter whether private and consensual,
because the provision furthered no legitimate state
interest. 539 U.S. at 578, 123 S.Ct. 2472; id. at
58183 (O'Connor, J., concurring); See gmiller v.
LaVerkin City, 528 F.3d 762, 771 (10th Cir.2008)
(noting that Lawrence did not announce a funda-
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mental right to private, consensual sexual activity
as it was decided on rational basis review).
Plaintiffs suggest that Lawrence should frame
the inquiry as a right to marry rather than a right to
same-gender marriage. To be sure, the Court recog-
nized that criminalizing private, consensual conduct
for one group interfered with personal autonomy,
but the Court expressly disclaimed entering the
same-gender union fray. See Lawrence, 539 U.S. at
578, 123 S.Ct. 2472; id. at 585 (O'Connor, J., con-
curring) (noting that preserving the traditional in-
stitution of marriage would be a legitimate state
interest beyond moral disapproval). Moreover, as
discussed above, numerous restrictions are already
imposed on marriage. It cannot be evaluated devoid
of context.
While Windsor is the only Supreme Court case
concerning same-gender marriage, it simply did not
decide the issue of state prohibitions on same-
gender marriages; instead, it concentrated on same-
gender marriages already authorized by state law.
Windsor, 133 S.Ct. at 2696. It certainly did not re-
quire every state to extend marriage to same-gender
couples, regardless of the contrary views of the
electorate and their representatives. After Windsor,
a state remains free (consistent with federal law and
comity) to not recognize such marriages. 28 U.S.C.
1738C. Windsor protected valid same-gender,
state law marriages based on federalism concerns,
as well as Fifth Amendment due process and im-
plied equal protection concerns. Id. at 2695. As in
Lawrence, the Court employed an equal protection
construct in determining that no legitimate pur-
pose could justify DOMA's unequal treatment of
same-gender marriages already authorized by state
law. Id. at 2693, 2696. Given an unusual federal in-
trusion into state authority, the Court analyzed the
nature, purpose, and effect of the federal law, alert
for discrimination of unusual character. Id. at
2693.
*38 Windsor did not create a fundamental right
to same-gender marriage. To the contrary, Windsor
recognized the authority of the States to redefine
marriage and stressed the need for popular con-
sensus in making such change. Id. at 2692. Consist-
ent with federalism, state policies concerning do-
mestic relations and marriage will vary. Id. at 2691.
Traditionally, the federal government has deferred
to those policies, including the definition of mar-
riage. Id. at 2691, 2693. Courts should follow suit.
Plaintiffs argue that Windsor dictates the out-
come here because we need only look to the pur-
pose and effect of the Utah constitutional amend-
ment defining marriage and not recognizing any
other union. But this case does not involve interfer-
ence with traditional state prerogatives so it is ques-
tionable whether such a directive from Windsor ap-
plies. If it does, Plaintiffs draw only one conclu-
sion: the provision is designed to impose inequality
on same-gender couples and their children. Aplt.
Br. at 3948. But DOMA is an outlier. It was
unique in not deferring to the States' power to
define marriage and instead interfering with the
legal effect (or equal dignity) of those marriages.
In this case, Utah seeks to preserve the status quo
and the right of the people to decide this issue.
Not surprisingly, the district court resisted a
finding of animus. Kitchen, 961 F.Supp.2d at 1209.
That was undoubtedly correct. The Plaintiffs' one-
sided formulation ignores the obvious and real con-
cern that this issue generates both on the merits and
procedurally. Nearly everyone is or has been af-
fected from birth by the presence or absence of
marriage. In any event, this record hardly reflects
a bare ... desire to harm a politically unpopular
group. U.S. Dep't of Agric. v. Moreno, 413 U.S.
528, 53435, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973).
In addition to statements for and against, the Utah
legislature's impartial analysis discussed federal
constitutional implications. Aplt.App. at 3448.
The power of judicial review is strong medicine,
and we should be reluctant to invalidate state con-
stitutional or legislative enactments based upon
motive. Rather, it is only an evident and inevitable
unconstitutional effect that warrants such treat-
ment. United States v. O'Brien, 391 U.S. 367, 385,
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88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
E. Equal ProtectionRational Basis
Plaintiffs contend and the district court so
found that the provisions cannot be sustained under
rational basis review. Kitchen, 961 F.Supp.2d at
121015. The State offered several rationales in-
cluding (1) encouraging responsible procreation
given the unique ability of opposite-gender couples
to conceive, (2) effective parenting to benefit the
offspring, and (3) proceeding with caution insofar
as altering and expanding the definition of mar-
riage. The district court rejected these rationales
based on a lack of evidence and/or a lack of a ra-
tional connection between excluding same-gender
couples from marriage and the asserted justifica-
tion.
FN2
*39 Equal protection is essentially a direction
that all persons similarly situated should be treated
alike. City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d
313 (1985). Given the provisions in this case, we
should look at the definition of marriage and the
exclusion of same-gender couples and inquire
whether the classification ... is rationally related to
a legitimate state interest. Id. at 440.
To the extent the district court thought that the
State had any obligation to produce evidence,
surely it was incorrect. Vance v. Bradley, 440 U.S.
93, 11011, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979).
Though the State is not precluded from relying
upon evidence, rational basis analysis is a legal in-
quiry. See Id. at 111112; see also United States
R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 17577, 179,
101 S.Ct. 453, 66 L.Ed.2d 368 (1980). The district
court seems to have misunderstood the essence of
rational basis review: extreme deference, the hall-
mark of judicial restraint. United States v. Alvarez,
U.S. , , 132 S.Ct. 2537, 2552, 183
L.Ed.2d 574 (2012) (Breyer, J., concurring); Fed.
Commc'n Comm'n v. Beach Commc'ns, 508 U.S.
307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).
The State could rely upon any plausible reason and
contend that the classification might arguably ad-
vance that reason. Armour v. City of Indianapolis,
U.S. , , 132 S.Ct. 2073,
208081, 182 L.Ed.2d 998 (2012). Plaintiffs had
the burden of refuting all plausible reasons for the
challenged amendment and statutes. See Vance, 440
U.S. at 111, 99 S.Ct. 939.
Whether a reason actually motivated the elect-
orate or the legislature is irrelevant; neither is re-
quired to state its reason for a choice. See Fritz, 449
U.S. at 179, 101 S.Ct. 453. Legislative choices in-
volve line-drawing, and the fact that such line-
drawing may result in some inequity is not determ-
inative. See Heller v. Doe, 509 U.S. 312, 321, 113
S.Ct. 2637, 125 L.Ed.2d 257 (1993). Accordingly,
an enactment may be over-inclusive and/or under-
inclusive yet still have a rational basis. The fact that
the classification could be improved or is ill-
advised is not enough to invalidate it; the political
process is responsible for remedying perceived
problems. City of Cleburne, 473 U.S. at 440, 105
S.Ct. 3249 (The Constitution presumes that even
improvident decisions will eventually be rectified
by the democratic processes.).
Judged against these standards, Utah should
prevail on a rational basis analysis. Plaintiffs have
not overcome their heavy burden of demonstrat-
ing that the provisions are arbitrary and irration-
al, that no electorate or legislature could reason-
ably believe the underlying legislative facts to be
true. See Kadrmas v. Dickinson Pub. Schs., 487
U.S. 450, 463, 465, 108 S.Ct. 2481, 101 L.Ed.2d
399 (1988). It is biologically undeniable that oppos-
ite-gender marriage has a procreative potential that
same-gender marriage lacks. The inherent differ-
ences between the biological sexes are permissible
legislative considerations, and indeed distinguish
gender from those classifications that warrant strict
scrutiny. See United States v. Virginia, 518 U.S.
515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996).
In Nguyen v. I.N.S., for example, the Court upheld a
legislative scheme imposing more onerous burdens
on unwed fathers than unwed mothers to prove the
citizenship of their foreign-born children because of
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the opportunity for mothers to develop a relation-
ship with their child at childbirth. 533 U.S. 53,
5659, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001).
The Court recognized important government in-
terests in ensuring both a biological relationship
between the citizen and the child and an opportun-
ity to develop a meaningful parent-child relation-
ship. Id. at 6265. The Court stressed the govern-
ment's critically important interest in ensuring
some opportunity for a tie between citizen father
and foreign born child as a proxy for the opportun-
ity for connection childbirth affords the mother. Id.
at 66. Nguyen suggests that when it comes to pro-
creation, gender can be considered and that biolo-
gical relationships are significant interests.
*40 Nor is the State precluded from consider-
ing procreation in regulating marriage. Merely be-
cause the Court has discussed marriage as a funda-
mental right apart from procreation or other rights
including contraception, child rearing, and educa-
tion does not suggest that the link between marriage
and procreation may not be considered when the
State regulates marriage. The Court's listing of vari-
ous rights from time to time is intended to be illus-
trative of cases upholding a right of privacy, ensur-
ing that certain personal decisions might be made
without unjustified government interference.
Carey v. Population Servs. Int'l, 431 U.S. 678,
68485, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). In-
deed, it is difficult to separate marriage from pro-
creation considering the State's interest in regulat-
ing both. Even in Turner, where the Court dis-
cussed marriage as a fundamental right for inmates
based upon other advantages of marriage, the Court
explained that most inmate marriages are formed
in the expectation that they will ultimately be fully
consummated and mentioned the advantage of
legitimation of children born out of wedlock. 482
U.S. at 96, 107 S.Ct. 2254. It goes without saying
that there are procreative and personal dimensions
of marriage, but a state may place greater emphasis
on one or the other as it regulates marriage without
violating the Fourteenth Amendment.
FN3
It is also undeniable that the State has an im-
portant interest in ensuring the well-being of result-
ing offspring, be they planned or unplanned. To
that end, the State can offer marriage and its bene-
fits to encourage unmarried parents to marry and
married parents to remain so. Thus, the State could
seek to limit the marriage benefit to opposite-
gender couples completely apart from history and
tradition. Far more opposite-gender couples will
produce and care for children than same-gender
couples and perpetuation of the species depends
upon procreation. Consistent with the greatest good
for the greatest number, the State could rationally
and sincerely believe that children are best raised
by two parents of opposite gender (including their
biological parents) and that the present arrangement
provides the best incentive for that outcome. Ac-
cordingly, the State could seek to preserve the clar-
ity of what marriage represents and not extend it.
Of course, other states may disagree. And it is
always possible to argue that there are exceptions.
But on this issue we should defer. To be sure, the
constant refrain in these cases has been that the
States' justifications are not advanced by excluding
same-gender couples from marriage. But that is a
matter of opinion; any improvement on the clas-
sification should be left to the state political pro-
cess.
At the very least, same-gender marriage is a
new social phenomenon with unknown outcomes
and the State could choose to exercise caution.
Utah's justifications for not extending marriage to
include same-gender couples are not irrefutable.
But they don't need to be; they need only be based
upon any reasonably conceivable state of facts.
Beach Commc'ns, 508 U.S. at 313, 113 S.Ct. 2096.
In conducting this analysis, we must defer to the
predictive judgments of the electorate and the legis-
lature and those judgments need not be based upon
complete, empirical evidence. See Turner Broad-
casting System, Inc. v. Fed. Commc'n Comm'n, 512
U.S. 622, 66566, 114 S.Ct. 2445, 129 L.Ed.2d 497
(1994).
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*41 No matter how many times we are re-
minded that (1) procreative ability and effective
parenting are not prerequisites to opposite-gender
marriage (exclusion of same-gender couples is un-
der-inclusive), (2) it is doubtful that the behavior of
opposite-gender couples is affected by same-gender
marriage (lack of evidence), (3) the evidence is
equivocal concerning the effects of gender diversity
on parenting (lack of evidence) and (4) the present
scheme disadvantages the children of same-gender
couples (exclusion is over-inclusive),
FN4
the
State's classification does not need to be perfect. It
can be under-inclusive and over-inclusive and need
only arguably serve the justifications urged by the
State. It arguably does.
That the Constitution does not compel the State
to recognize same-gender marriages within its own
borders demonstrates a fortiori that it need not re-
cognize those solemnized without. Unlike the fed-
eral government in Windsor, a state has the
historic and essential authority to define the marit-
al relation as applied to its residents and citizens.
Windsor, 133 S.Ct. at 269192. To that end, Utah
has the authority to decline to recognize valid mar-
riages from other states that are inconsistent with
its public policy choices. See In re Vetas' Estate,
110 Utah 187, 170 P.2d 183, 187 (Utah 1946)
(declining to recognize foreign common law mar-
riage when such marriages were not recognized by
Utah) (superseded by statute as stated in Whyte v.
Blair, 885 P.2d 791, 793 (Utah 1994)). To conclude
otherwise would nationalize the regulation of mar-
riage, thereby forcing each state to substitute the
statutes of other states for its own statutes dealing
with a subject matter concerning which it is com-
petent to legislate. Baker by Thomas v. Gen. Mo-
tors Corp., 522 U.S. 222, 232, 118 S.Ct. 657, 139
L.Ed.2d 580 (1998). Such a result runs in direct
contravention of the law of comity between states
and its uncontroversial corollary that marriage laws
necessarily vary from state to state. Windsor, 133
S.Ct. at 2691.
The State has satisfied its burden on rational
basis review. One only need consider the reams of
sociological evidence urged by the parties and the
scores of amicus briefs on either side to know that
the State's position is (at the very least) arguable. It
most certainly is not arbitrary, irrational, or based
upon legislative facts that no electorate or legis-
lature could conceivably believe. Though the
Plaintiffs would weigh the interests of the State dif-
ferently and discount the procreation, child-rearing,
and caution rationales, that prerogative belongs to
the electorate and their representatives. Or as the
Court recently stated:
The respondents in this case insist that a difficult
question of public policy must be taken from the
reach of the voters, and thus removed from the
realm of public discussion, dialogue, and debate
in an election campaign. Quite in addition to the
serious First Amendment implications of that po-
sition with respect to any particular election, it is
inconsistent with the underlying premises of a re-
sponsible, functioning democracy.
*42 Schuette v. Coalition to Defend Affirmative
Action, U.S. , , 134 S.Ct. 1623, 1637,
188 L.Ed.2d 613 (2014) (plurality opinion). We
should resist the temptation to become philosopher-
kings, imposing our views under the guise of con-
stitutional interpretation of the Fourteenth Amend-
ment.
APPENDIX A
27 SCHOLARS OF FEDERALISM AND JU-
DICIAL RESTRAINT
46 EMPLOYERS AND ORGANIZATIONS
REPRESENTING EMPLOYERS
Attorneys on the Brief: Meghan Bailey, Susan
Baker Manning, John V. McDermott, Lauren
Schmidt, Margaret Sheer, Michael Louis Whit-
lock
93 INDIVIDUAL FAITH LEADERS IN OK-
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LAHOMA AND UTAH
9TO5, NATIONAL ASSOCIATION OF
WORKING WOMEN
John M. Mejia
ACLU OF OKLAHOMA
John M. Mejia
ACLU OF UTAH
John M. Mejia
AFFIRMATION
ALL SOULS UNITARIAN CHURCH OF
TULSA
ALLEN, DOUGLAS W.
ALLIANCE FOR A BETTER UTAH
Attorneys on the Brief: Courtney Bowman, Sarah
KrollRosenbaum, Shawn Scott Ledingham
ALVAR, HELEN M.
Attorneys on the Brief: Richard D. White
AMBROSE, DOUGLAS
APPENDIX A
AMERICAN CIVIL LIBERTIES UNION
John M. Mejia
AMERICAN LEADERSHIP FUND
AMERICAN MILITARY PARTNER ASSO-
CIATION
AMERICAN PSYCHOLOGICAL ASSOCI-
ATION
Paul March Smith
AMERICAN SOCIOLOGICAL ASSOCI-
ATION
Attorneys on the Brief: Carmine D. Boccuzzi, Jr.,
Mark A. Lightner, Andrew P. Meiser, Andra
Troy
AMERICANS UNITED FOR SEPARATION
OF CHURCH AND STATE
feng Tsai
ANDERSON, JANNA
ANDERSON, RYAN
ANTIDEFAMATION LEAGUE
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Attorneys on the Brief: Michelle Deutchman,
Steven M. Freeman, Seth M. Marnin, Rocky
Chiu-feng Tsai
API EQUALITYLA
John M. Mejia
JUSTICE, ASIAN AMERICANS ADVANCING
JUSTICEASIAN LAW CAUCUS
*43 Attorneys on the Brief: Joshua A. Block,
Leah Farrell, Brady R. Henderson, Ryan D. Kies-
el, John M. Mejia
JUSTICECHICAGO
John M. Mejia
APPENDIX A
AUSTIN LGBT BAR ASSOCIATION
Jerome Cary Roth
BAR ASSOCIATION OF SAN FRANCISCO
Jerome Cary Roth
BARDAGLIO, PETER
BASCH, NORMA
BAY AREA LAWYERS FOR INDIVIDUAL
FREEDOM
Jerome Cary Roth
BECKET FUND FOR RELIGIOUS LIBERTY
Attorneys on the Brief: Eric C. Rassbach, Asma
Uddin
BELTRAN, LYNN
en Janghorbani, Roberta A. Kaplan, Joshua Kaye,
Alan B. Morrison
BELZ, HERMAN
BEND THE ARC: A JEWISH PARTNERSHIP
FOR JUSTICE
feng Tsai
BENNE, ROBERT D.
BOYLE, DAVID
Attorneys on the Brief: David Boyle
CALIFORNIA
Attorneys on the Brief: Kamala D. Harris, Peter
Sacks
CARBADO, DEVON
APPENDIX A
CARLSON, ALLAN C.
CARROLL, JASON S.
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CATHEDRAL OF HOPE OF OKLAHOMA
CITY
CATO INSTITUTE
Wydra
CENTER FOR CONSTITUTIONAL JURIS-
PRUDENCE
CENTRAL CONFERENCE OF AMERICAN
RABBIS
feng Tsai
CHILDREN'S CENTER OF SALT LAKE
CITY
Stephen D. Gurr
CHRISTENSEN, LAVAR
CHURCH OF THE OPEN ARMS OF OK-
LAHOMA CITY
CHURCH OF THE RESTORATION OF
TULSA
CIMARRON ALLIANCE
John M. Mejia
COLAGE
Stephen D. Gurr
APPENDIX A
*44 COLORADO GAY LESBIAN BISEXU-
AL TRANSGENDER (GLBT) BAR ASSOCI-
ATION
Jerome Cary Roth
COLORADO WOMEN'S BAR ASSOCI-
ATION
CONCERNED WOMEN FOR AMERICA
Attorneys on the Brief: Steven W. Fitschen
CONGREGATION KOLAMI OF SALT
LAKE CITY
CONKLE, DANIEL O.
Attorneys on the Brief: Brett Gilbert Scharffs
CONNECTICUT
Attorneys on the Brief: George Jepsen, Peter
Sacks
CONSTITUTIONAL ACCOUNTABILITY
CENTER
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Wydra
CONSTITUTIONAL LAW SCHOLARS
Attorneys on the Brief: Lori Ann Alvino McGill,
Geoffrey R. Stone
COONTZ, STEPHANIE
COTT, NANCY
COVENANT NETWORK OF PRESBYTERI-
ANS
COX, DUANE MORLEY
Attorneys on the Brief: Duane Morley Cox
APPENDIX A
CURTIS, G.M.
DELAWARE
Attorneys on the Brief: Joseph R. Biden III, Peter
Sacks
DISTRICT OF COLUMBIA
Attorneys on the Brief: Irvin B. Nathan, Peter
Sacks
DITZ, TOBY L.
DOLOVICH, SHARON
DUBLER, ARIELA R.
EAGLE FORUM EDUCATION & LEGAL
DEFENSE FUND
Attorneys on the Brief: Lawrence John Joseph
EDWARDS, LAURA F.
EGGEBEEN, DAVID J.
EIGHTY ONE UTAH STATE LEGISLAT-
ORS
EMERSON, MICHAEL O.
EPISCOPAL DIOCESE OF UTAH
APPENDIX A
EPWORTH UNITED METHODIST CHURCH
OF OKLAHOMA CITY
EQUAL RIGHTS ADVOCATES
EQUALITY UTAH
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merman
FAMILY EQUALITY COUNCIL
Stephen D. Gurr
FAMILY LAW AND CONFLICT OF LAWS
PROFESSORS
Attorneys on the Brief: Marjory A. Gentry,
Joanna L. Grossman, John S. Throckmorton
*45 FAMILY LAW PROFESSORS
Weissbein
FAMILY RESEARCH COUNCIL
Attorneys on the Brief: Paul Benjamin Linton
FELLOWSHIP CONGREGATIONAL
UNITED CHURCH OF CHRIST OF TULSA
FIRST UNITARIAN CHURCH OF OK-
LAHOMA CITY
FLUKE, CHARLES
Alan B. Morrison
FREEDOM TO MARRY
Jerome Cary Roth
APPENDIX A
FRIENDS FOR LESBIAN, GAY, BISEXUAL,
TRANSGENDER, AND QUEER CONCERNS
GAY & LESBIAN ADVOCATES & DE-
FENDERS
Attorneys on the Brief: Felicia H. Ellsworth,
Mark C. Fleming, Leah M. Litman, Dina Bernick
Mishra, Kenneth Lee Salazar, Alan E. Schoen-
feld, Paul Reinherz Wolfson
GEORGE, ROBERT P.
GEORGE, TIMOTHY
GIRGIS, SHERIF
GLMA: HEALTH PROFESSIONALS AD-
VANCING LGBT EQUALITY
Attorneys on the Brief: Nicholas M. O'Donnell
GROSSBERG, MICHAEL
HADASSAH, THE WOMEN'S ZIONIST OR-
GANIZATION OF AMERICA, INC.
feng Tsai
HARTOG, HENDRIK
HAWKINS, ALAN J.
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HAYASHI, SCOTT
APPENDIX A
HERMAN, ELLEN
HINDU AMERICAN FOUNDATION
feng Tsai
HISPANIC NATIONAL BAR ASSOCIATION
John M. Mejia
HISTORIANS OF ANTIGAY DISCRIMINA-
TION
Attorneys on the Brief: Katie D. Fairchild,
Madeline H. Gitomer, Jessica Black Livingston,
Katherine A. Nelson, Aaron M. Paul, Erica
Knievel Songer, Catherine E. Stetson
HODES, MARTHA
HOWARD UNIVERSITY SCHOOL OF LAW
CIVIL RIGHTS CLINIC
Attorneys on the Brief: David Scott Flugman
HUMAN RIGHTS CAMPAIGN
Attorneys on the Brief:, Joshua A. Block, Leah
John Mejia
HUNTER, NAN D.
*46 Attorneys on the Brief: Marcia D. Greenber-
ger, Cortelyou Kenney, Emily Martin
ILLINOIS
Attorneys on the Brief: Lisa Madigan, Peter
Sacks
INSTITUTE FOR MARRIAGE AND PUBLIC
POLICY
Attorneys on the Brief: Jennifer L. Bursch
INTERFAITH ALLIANCE FOUNDATION
feng Tsai
APPENDIX A
INTERFAITH ALLIANCE OF COLORADO
feng Tsai
IOWA
Attorneys on the Brief: Tom Miller, Peter Sacks
JAMES, HAROLD
JAPANESE AMERICAN CITIZENS
LEAGUE
feng Tsai
JEWISH SOCIAL POLICY ACTION NET-
WORK
feng Tsai
JOHNSON, BYRON R.
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JUSTICE, STEVEN
KERBER, LINDA K.
KESHET
feng Tsai
KESSLERHARRIS, ALICE
KOONS, ROBERT C.
KURTZ, STANLEY
APPENDIX A
LAMBDA LEGAL DEFENSE AND EDUCA-
TION FUND, INC.
Attorneys on the Brief: Jennifer C. Pizer, Susan
Sommer, Camilla Taylor, Kenneth D. Upton
LEADERSHIP CONFERENCE ON CIVIL
AND HUMAN RIGHTS
John Mejia
LEGAL MOMENTUM
LEGAL VOICE
LGBT & ALLIED LAWYERS OF UTAH
BAR ASSOCIATION
Jerome Cary Roth
LIBERTY COUNSEL, INC.
Attorneys on the Brief: Anita Staver, Mathew D.
Staver
LITTLETON, CHRISTINE A.
LOPEZ, ROBERT OSCAR
LOVE HONOR CHERISH
Jerome Cary Roth
LUTHERAN CHURCHMISSOURI SYNOD
Justin W. Starr
MAINE
Attorneys on the Brief: Janet T. Mills, Peter
Sacks
MAINWARING, DOUG
APPENDIX A
MARRIAGE EQUALITY USA
Jerome Cary Roth
*47 MARYLAND
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Attorneys on the Brief: Douglas F. Gansler, Peter
Sacks
MASSACHUSETTS
Attorneys on the Brief: Martha Coakley, Michelle
L. Leung, Jonathan B. Miller, Genevieve C.
Nadeau, Peter Sacks
MAY, ELAINE TYLER
MAYERI, SERENA
MAYFLOWER CONGREGATIONAL
UNITED CHURCH OF CHRIST OF OKLAHOMA
CITY
McDERMOTT, GERALD R.
McHUGH, PAUL
Attorneys on the Brief: Gerard Vincent Bradley,
Kevin Trent Snider
McIFF, KAY
METHODIST FEDERATION FOR SOCIAL
ACTION
METROPOLITAN COMMUNITY
CHURCHES
feng Tsai
MINNESOTA LAVENDER BAR ASSOCI-
ATION
Jerome Cary Roth
APPENDIX A
MINTZ, STEVE
MOORE, RUSSELL
MORE LIGHT PRESBYTERIANS
MORMONS FOR EQUALITY
MT. TABOR LUTHERAN CHURCH OF
SALT LAKE CITY
NAACP SALT LAKE BRANCH & NAACP
TRI STATE CONFERENCE OF IDAHO,
NEVADA AND UTAH
John M. Mejia
NATIONAL ACTION NETWORK
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John Mejia
NATIONAL ASIAN PACIFIC AMERICA
BAR ASSOCIATION
Jerome Cary Roth
NATIONAL ASSOCIATION FOR RE-
SEARCH AND THERAPY OF HOMOSEXUAL-
ITY
Attorneys on the Brief: Stephen M. Crampton,
Mary Elizabeth McAlister
NATIONAL ASSOCIATION OF EVANGEL-
ICALS
Justin W. Starr
NATIONAL ASSOCIATION OF WOMEN
LAWYERS
APPENDIX A
NATIONAL COUNCIL OF JEWISH WOMEN
feng Tsai
NATIONAL COUNCIL OF LA RAZA
John Mejia
*48 NATIONAL GAY AND LESBIAN TASK
FORCE
John Mejia
NATIONAL ORGANIZATION FOR WOMEN
FOUNDATION
John Mejia
NATIONAL PARTNERSHIP FOR WOMEN
AND FAMILIES
NATIONAL WOMEN'S LAW CENTER
NEHIRIM
feng Tsai
NELSON, MERRILL
NERO, NICHOLAS
Alan B. Morrison
NEW HAMPSHIRE
Attorneys on the Brief: Joseph A. Foster, Peter
Sacks
NEW MEXICO
Attorneys on the Brief: Gary K. King, Peter Sacks
NEW MEXICO LESBIAN AND GAY LAW-
YERS ASSOCIATION
Jerome Cary Roth
APPENDIX A
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NEW YORK
Attorneys on the Brief: Peter Sacks, Eric T.
Schneiderman
NEWMAN, ALANA
O'GRADY, CLAUDIA
Alan B. Morrison
OKLAHOMA CITY UNIVERSITY SCHOOL
OF LAW OUTLAWS
Jerome Cary Roth
OKLAHOMANS FOR EQUALITY
John Mejia
OREGON
Attorneys on the Brief: Ellen F. Rosenblum, Peter
Sacks
OUTSERVESLDN
PAKALUK, CATHERINE R.
PAQUETTE, ROBERT
PARENTS AND FRIENDS OF EXGAYS &
GAYS
Attorneys on the Brief: Arthur Andrew Schulcz,
Jr.
PARENTS, FAMILIES AND FRIENDS OF
LESBIANS AND GAYS, INC.
Attorneys on the Brief: Andrew John Davis, Jiyun
Cameron Lee
PEOPLE FOR THE AMERICAN WAY
FOUNDATION
feng Tsai
PERRY, MICHAEL J.
APPENDIX A
PLECK, ELIZABETH
POLIKOFF, NANCY
PRESBYTERIAN WELCOME
PRICE, JOSEPH
*49 PUBLIC ADVOCATES, INC.
John Mejia
QLAWTHE GLBT BAR ASSOCIATION OF
WASHINGTON
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Jerome Cary Roth
RAHE, PAUL A.
RECONCILING MINISTRIES NETWORK
RECONCILINGWORKS: LUTHERANS FOR
FULL PARTICIPATION
RECONSTRUCTIONIST RABBINICAL AS-
SOCIATION
RECONSTRUCTIONIST RABBINICAL
COLLEGE
APPENDIX A
REGNERUS, MARK D.
RELIGIOUS INSTITUTE, INC.
REYNOLDS, MICHAEL A.
RHODE ISLAND
Attorneys on the Brief: Peter F. Kilmartin, Peter
Sacks ROVIG,
STANFORD
Alan B. Morrison
SCHARFFS, BRETT GILBERT
SCHULTZ, VICKI
SEARS, BRAD
SHAMMAS, CAROLE
SHANLEY, MARY
SHIFFRIN, SEANA
SIKH AMERICAN LEGAL DEFENSE AND
EDUCATION FUND
feng Tsai
APPENDIX A
SNOW, LOWRY
SOCIETY FOR HUMANISTIC JUDAISM
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feng Tsai
SOUTH ASIAN AMERICANS LEADING
TOGETHER
feng Tsai
SOUTHWEST WOMEN'S LAW CENTER
ST. STEPHEN'S UNITED METHODIST
CHURCH OF NORMAN, OKLAHOMA
STANLEY, AMY DRU
*50 STATE OF ALABAMA
Luther Strange
STATE OF ALASKA
Michael C. Geraghty
STATE OF ARIZONA
Thomas C. Horne
STATE OF COLORADO
John Suthers
STATE OF IDAHO
Lawrence G. Wasden
STATE OF INDIANA
Gregory F. Zoeller
STATE OF KANSAS
Attorneys on the Brief: Jeffrey A. Chanay, Bryan
Charles Clark
APPENDIX A
STATE OF MICHIGAN
Attorneys on the Brief: Aaron Lindstrom, Bern-
ard Eric Restuccia, Bill Schuette
STATE OF MONTANA
Timothy C. Fox
STATE OF NEBRASKA
Attorneys on the Brief: Jon Bruning, Thomas
Molnar Fisher
STATE OF OKLAHOMA
Attorneys on the Brief: Thomas Molnar Fisher, E.
Scott Pruitt
STATE OF SOUTH CAROLINA
Alan Wilson
GEORGIA, INC.
Jerome Cary Roth
MICHIGAN
Jerome Cary Roth
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STONEWALL LAW ASSOCIATION OF
GREATER HOUSTON
Jerome Cary Roth
STRAUB, D'ARCY WINSTON
Attorneys on the Brief: D'Arcy Winston Straub
THE CENTER FOR URBAN RENEWAL
AND EDUCATION
THE CHURCH OF JESUS CHRIST OF LAT-
TERDAY SAINTS
Justin W. Starr
THE COALITION OF AFRIC-
ANAMERICAN PASTORS USA
THE EQUALITY NETWORK
John Mejia
APPENDIX A
THE ETHICS & RELIGIOUS LIBERTY
COMMISSION OF THE SOUTHERN BAPTIST
CONVENTION
Justin W. Starr
THE FREDERICK DOUGLASS FOUNDA-
TION, INC.
THE OUTLAWS
Jerome Cary Roth
THE SUTHERLAND INSTITUTE
Attorneys on the Brief: William C. Duncan
THE UTAH PSYCHOLOGICAL ASSOCI-
ATION
Paul March Smith
THE WOMEN'S ZIONIST ORGANIZATION
OF AMERICA
Attorneys on the Brief: Samuel P. Bickett, Re-
feng Tsai
TRINITY CHRISTIAN CHURCH OF ED-
MOND, OKLAHOMA
T'RUAH: THE RABBINIC CALL FOR HU-
MAN RIGHTS
*51 Attorneys on the Brief: Samual P. Bickett,
Rebecca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
UNION FOR REFORM JUDAISM
UNITARIAN UNIVERSALIST ASSOCI-
ATION
UNITED CHURCH OF CHRIST
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APPENDIX A
UNITED CHURCH OF NORMAN, OK-
LAHOMA
UNITED STATES CONFERENCE OF CATH-
OLIC BISHOPS
Justin W. Starr
UNIVERSITY OF OKLAHOMA COLLEGE
OF LAW LEGAL GROUP FOR BUILDING TOL-
ERANCE AND ACCEPTANCE
Jerome Cary Roth
UPHAM, DAVID R.
Attorneys on the Brief: David Robert Upham
UTAH COUNTIES
Attorneys on the Brief: Jared W. Eldredge, Lynn
Dennis Wardle
UTAH PRIDE CENTER
merman
VERMONT
Attorneys on the Brief: Peter Sacks, William H.
Sorrell
VOICES FOR UTAH CHILDREN
Stephen D. Gurr
WASHINGTON
Attorneys on the Brief: Robert W. Ferguson,
Peter Sacks WELKE,
BARBARA
WESTERN REPUBLICANS
Attorneys on the Brief: Stacy A. Carpenter, Ben-
nett L. Cohen, Jon R. Dedon, Sean Robert Galla-
gher
WILKEN, ROBERT LOUIS
APPENDIX A
WINKLER, ADAM
WOLFE, CHRISTOPHER
WOMEN OF REFORM JUDAISM
feng Tsai
WOMEN'S LAW PROJECT
WOMEN'S LEAGUE FOR CONSERVATIVE
JUDAISM
feng Tsai
WOOD, PETER W.
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WORTHAM, DOUGLAS
Alan B. Morrison
FN* The names of all amicus curiae
parties are contained in Appendix A to this
Opinion.
FN1. In her answer, the Salt Lake County
Clerk stated that her duties are purely
ministerial, and that the State of Utah
controls the content of the form application
to be completed by those seeking marriage
licenses in the State of Utah.
FN2. Utah argues that doctrinal develop-
ments are insufficient to undermine a
summary disposition, asserting that the
Court overruled Hicks in Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490
U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526
(1989), in stating that [i]f a precedent of
this Court has direct application in a case,
yet appears to rest on reasons rejected in
some other line of decisions, the Court of
Appeals should follow the case which dir-
ectly controls, leaving to this Court the
prerogative of overruling its own de-
cisions. Id. at 484; see also Conover v.
Aetna U.S. Healthcare, Inc., 320 F.3d
1076, 1078 n. 2 (10th Cir.2003) ([T]he
Supreme Court instructed us to avoid con-
cluding its more recent cases have, by im-
plication, overruled an earlier precedent.
(quotation omitted)). But both of these
cases dealt with opinions on the merits. We
do not read them as overruling the doctrin-
al developments rule as to summary dis-
positions.
FN3. Some have suggested that Baker im-
plicates a court's subject matter jurisdic-
tion. See, e.g., Bostic, 970 F.Supp.2d at
469 (Defendants here contend that be-
cause the Supreme Court found a substan-
tial federal question lacking in Baker, this
Court is precluded from exercising juris-
diction.). Given our conclusion that sub-
sequent doctrinal developments have
rendered Baker no longer binding, such an
assertion necessarily fails. We further note
that because plaintiffs have filed plausible
federal constitutional claims pursuant to 42
U.S.C. 1983, which specifically allows
such claims to be filed in federal court,
they have presented a federal question suf-
ficient to confer subject matter jurisdiction.
See Grable & Sons Metal Prods., Inc. v.
Darue Eng'g & Mfg., 545 U.S. 308, 312,
125 S.Ct. 2363, 162 L.Ed.2d 257 (2005) (
28 U.S.C. 1331 is invoked by and large
by plaintiffs pleading a cause of action cre-
ated by federal law (e.g., claims under 42
U.S.C. 1983)).
FN4. The Court distinguished its prior
summary affirmance of Johnson v. Rocke-
feller, 365 F.Supp. 377 (S.D.N.Y.1973),
which upheld a prohibition on marriage for
inmates serving a life sentence. Turner,
482 U.S. at 96, 107 S.Ct. 2254; see Butler
v. Wilson, 415 U.S. 953, 94 S.Ct. 1479, 39
L.Ed.2d 569 (1974) (per curiam) (summary
affirmance). Appellants argue that this dis-
tinction shows that only those individuals
who can procreate have a fundamental
right to marry, but the Turner Court did
not rely on procreation in distinguishing
the summary affirmance in Butler, holding
instead that importantly, denial of the
right was part of the punishment for crime
and citing a concurrence for the proposi-
tion that the asserted governmental in-
terest of punishing crime [was] sufficiently
important to justify deprivation of [the]
right. 482 U.S. at 96, 107 S.Ct. 2254. We
acknowledge that the three-judge panel in
Johnson did mention the impossibility of a
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life-incarcerated prisoner participating in
the begetting and raising of children,
which is described (along with
cohabitation and sexual intercourse) as
among the aspects of marriage which
make it one of the basic civil rights of
man. 365 F.Supp. at 380. But [b]ecause
a summary affirmance is an affirmance of
the judgment only, the rationale of the af-
firmance may not be gleaned solely from
the opinion below. Turner, 482 U.S. at
96, 107 S.Ct. 2254 (quotation omitted). We
thus cannot read the summary affirmance
in Butler as standing for the proposition
that procreation is an essential aspect of
the marriage relationship.
FN5. Hodgson was a splintered decision.
Justice Stevens delivered the opinion of
the Court as to certain portions of his writ-
ing, but the quotation that follows is from a
section joined only by Justice Brennan.
FN6. Appellants contend that 2 of
DOMA forecloses any challenge to the
nonrecognition provisions of Amendment
3. However, they raise this issue only in a
footnote and in conclusory fashion. See In
re C.W. Mining Co., 740 F.3d 548, 564
(10th Cir.2014) ([A]rguments raised in a
perfunctory manner, such as in a footnote,
are waived. (quotation and emphasis
omitted)). Because we conclude that mar-
riage is a fundamental right and the state's
arguments for restricting it to opposite-sex
couples fail strict scrutiny, appellants' ar-
guments regarding 2 of DOMA also fail
on the merits. Congress cannot authorize a
state to violate the Fourteenth Amendment.
See Graham v. Richardson, 403 U.S. 365,
382, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971)
(Congress does not have the power to au-
thorize the individual States to violate the
Equal Protection Clause.).
FN7. Utah also permits adoption by un-
married, non-cohabitating individuals if it
is in the best interests of the child to place
the child with a single person. Utah Code
78B6117(4)(e). But any person who is
cohabitating in a relationship that is not a
legally valid and binding marriage under
the laws of this state, 78B6117(3),
may not adopt a child, with no explicit ex-
ception for the child's best interest.
FN8. In Seegmiller v. Laverkin City, 528
F.3d 762 (10th Cir.2008), we concluded
that Lawrence did not announce a funda-
mental right to engage in private sexual
conduct. Id. at 771. As explained above,
however, Lawrence did expressly reject
Bowers' narrow, class-based framing of the
liberty interest at issue.
FN9. We do not express any view on the
constitutionality of this provision. Instead,
we note the inconsistency between the
message sent by this statute and the mes-
sage appellants claim the same-sex mar-
riage ban conveys.
FN10. It appears that the only cases in
which the Supreme Court has deferred to
the predictions of legislators in evaluating
the constitutionality of their enactments
have involved, at most, intermediate scru-
tiny. See City of Erie v. Pap's A.M., 529
U.S. 277, 289, 120 S.Ct. 1382, 146
L.Ed.2d 265 (2000) (plurality opinion)
(applying the less stringent standard ... for
evaluating restrictions on symbolic
speech (quotation omitted)); Turner II,
520 U.S. at 213, 117 S.Ct. 1174; Turner
Broad. Sys., Inc. v. FCC, 512 U.S. 622,
662, 114 S.Ct. 2445, 129 L.Ed.2d 497
(1994) ( Turner I )(plurality opinion).
These cases also consider circumstances in
which lawmaking authorities made factual
findings regarding the feared risks before
they promulgated the challenged laws, see
Erie, 529 U.S. at 297, 120 S.Ct. 1382;
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Turner II, 520 U.S. at 191225, 117 S.Ct.
1174. Appellants have not directed us to
any such findings.
FN11. Because we conclude that marriage
is a fundamental right, we do not consider
whether Amendment 3 passes muster un-
der rational basis review. Similarly, we do
not address whether Amendment 3 might
be subject to heightened scrutiny on any
alternative basis.
FN12. We also note, with respect to the
first three rationales asserted by appellants,
that the same arguments were submitted to
the Court in Windsor and rejected. The ini-
tial brief filed by the Bipartisan Legal Ad-
visory Group (BLAG) in that case ar-
gued that DOMA was justified based on
the link between procreation and mar-
riage. Initial Br. for BLAG at 44, Wind-
sor, U.S. , 133 S.Ct. 2675, 186
L.Ed.2d 808 (No. 12307). BLAG also ar-
gued that refusing to recognize same-sex
marriage offers special encouragement
and support for relationships that can result
in mothers and fathers jointly raising their
biological children and that biological
differentiation in the roles of mothers and
fathers makes it rational to encourage situ-
ations in which children have one of each.
Id. at 48.
Justice Alito's dissent in Windsor relied
on these arguments. 133 S.Ct. at 2718
(Alito, J., dissenting) (asserting that
states are free to support the
traditional or conjugal view of
marriage as an intrinsically opposite-
sex institution ... created for the purpose
of channeling heterosexual intercourse
into a structure that supports child rear-
ing). The majority did not mention
these justifications, but concluded that
DOMA is unconstitutional as a depriva-
tion of the liberty of the person protected
by the Fifth Amendment of the Constitu-
tion. Id. at 2695.
FN13. Although appellants suggest that re-
ligious institutions might be subject to hy-
pothetical lawsuits under various scenari-
os, such lawsuits would be a function of
antidiscrimination law, not legal recogni-
tion of same-sex marriage.
FN14. If no petition for certiorari is filed,
we would lift the stay and issue our man-
date when the deadline for filing the peti-
tion lapses. See Perry v. Brown, 681 F.3d
1065, 106667 (9th Cir.2012) (per curi-
am). If a petition for certiorari is filed and
denied, we would lift the stay and issue the
mandate. See Stafford v. Ward, 60 F.3d
668, 671 (10th Cir.1995). And if a petition
for certiorari is filed and granted, the stay
will remain in effect until the Supreme
Court resolves the dispute. See id. at 670.
FN15. The Supreme Court recently denied
without explanation a motion to stay a dis-
trict court's order enjoining the enforce-
ment of a state's same-sex marriage ban.
See Nat'l Org. for Marriage v. Geiger, No.
13A1173, 2014 U.S. LEXIS 3990 (June 4,
2014). We note that in that case the named
defendants declined to defend the chal-
lenged laws before the district court. Gei-
ger, 2014 U.S. Dist. LEXIS 68171, at *10.
A third party, whose motion to intervene in
the district court had been denied, sought a
stay from the Supreme Court. As a result,
the Court may have denied a stay in Geiger
for lack of a proper party requesting one.
Thus, Geiger does not clearly indicate that
the Court no longer wishes to preserve the
status quo regarding same-sex marriage in
Utah.
FN1. Utah Const. art. I, 29 and Utah
Code 3012(5) (enacted in 1977),
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3014.1.
FN2. On appeal, the State offers a different
formulation: (1) fostering a child-centric
marriage culture that encourages parents to
subordinate their own interests to the needs
of their children, (2) children being raised
by their biological mothers and fathersor
at least by a married mother and fatherin
a stable home, (3) ensuring adequate re-
production by parents willing and able to
provide a high-quality home environment
for their children, and (4) accommodating
religious freedom and reducing the poten-
tial for civic strife. Aplt. Br. at iii. Not-
withstanding its endorsement of many sim-
ilar (though more general) values in the
substantive due process discussion, this
court is only willing to assume (apparently
without deciding) that the first three are
compelling.
Be that as it may, Plaintiffs correctly
point out that the fourth argument was
not raised in the district court. Aplee. Br.
at 81 n.26. The State responds that the
district court discussed and rejected this
argument in its decision, but the court
merely made an offhand comment that
religious freedom would be furthered by
allowing churches to perform same-
gender weddings (if they so choose).
Aplee. Reply Br. at 41 n.19 (citing Kit-
chen, 961 F.Supp.2d at 1214). The State
also argues that rational basis review is
not confined to explanations of the
statute's rationality that may be offered
by the litigants or other courts. Id.
(quoting Kadrmas v. Dickinson Pub.
Schs., 487 U.S. 450, 463, 108 S.Ct.
2481, 101 L.Ed.2d 399 (1988)). That
may be, but the State as a litigant is of-
fering an explanation that was not pre-
served. Finally, the State argues that ap-
pellate courts may address a waived is-
sue in the public interest or to avoid
manifest injustice. Id. We normally con-
duct appellate review based upon argu-
ments raised in the district court. For
those that were not, absent a full plain
error argument in the opening brief, we
consider such arguments waived. See
Richison v. Ernest Grp., Inc., 634 F.3d
1123, 1131 (10th Cir.2011) ([T]he fail-
ure to argue for plain error and its ap-
plication on appeal[ ]surely marks the
end of the road for an argument for re-
versal not first presented to the district
court.).
FN3. These permissible considerations
easily distinguish this case from Loving v.
Virginia, upon which Plaintiffs rely. As
opposed to the Court-approved interests
furthered by the regulations here, the mis-
cegenation law invalidated in Loving was
based upon distinctions drawn according
to race, and the law furthered only the
patently impermissible pursuit of invidious
discrimination (maintaining White Su-
premacy). 388 U.S. at 1112. The Court
has always considered racial classifications
as different than those based upon gender,
or any other consideration.
FN4. The Court's conclusion that children
raised by same-gender couples are some-
how stigmatized, see Windsor, 133 S.Ct. at
2694, seems overwrought when one con-
siders that 40.7% of children are now born
out of wedlock. See Center for Disease
Control and Prevention, FastStats
Homepage, available at ht-
tp://www.cdc.gov/nchs/fastats/unmarried-c
hildbearing.htm (last visited June 24,
2014). Of course, there are numerous al-
ternative family arrangements that exist to
care for these children. We should be hes-
itant to suggest stigma where substantial
numbers of children are raised in such en-
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vironments. Moreover, it is pure specula-
tion that every two-parent household, re-
gardless of gender, desires marriage. See
Schuette v. Coalition to Defend Affirmative
Action, U.S. , , 134 S.Ct.
1623, 1634, 188 L.Ed.2d 613 (2014)
(plurality opinion) (cautioning against as-
suming that members of the same group
think alike and share the same views).
C.A.10 (Utah),2014.
Kitchen v. Herbert
--- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah))
END OF DOCUMENT
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Latta v. Otter, --- F.Supp.2d ---- (2014)
2014 WL 1909999
D. Idaho.
Susan LATTA and Traci Ehlers, Lori
Watsen and Sharene Watsen, Shelia
Robertson and Andrea Altmayer, Amber
Beierle and Rachael Robertson, Plaintiffs,
v.
C.L. Butch OTTER, as Governor of the
State of Idaho, in his official capacity, and
Christopher Rich, as Recorder of Ada County,
Idaho, in his official capacity, Defendants,
and
State of Idaho, DefendantIntervenor.
Case No. 1:13cv00482
CWD. | Signed May 13, 2014.
Synopsis
Background: Two same-sex couples seeking to marry in
Idaho, and two same-sex couples seeking to have their
out-of-state marriages recognized in Idaho, brought action
under 1983 against Idaho's governor and county recorder
seeking declaratory judgment that statutes and constitutional
provision defining marriage as between opposite-sex couples
only were unconstitutional, and a permanent injunction
against enforcement of those laws and provision. The same-
sex couples moved for summary judgment.
Holdings: The District Court, Candy Wagahoff Dale, United
States Chief Magistrate Judge, held that:
[1] Supreme Court's prior summary disposition did not
preclude review;
[2] laws violated due process;
[3] laws violated Equal Protection Clause;
[4] heightened scrutiny applied to sexual orientation
classifications;
[5] purpose of laws was, in part, to express moral disapproval;
[6] state's interest in child welfare was not persuasive; and
[7] state's interest in religious freedom was not persuasive.
Motion granted.
West Codenotes
West's I.C.A. 32201, 32209; Idaho Const. Art. 3, 28.
Deborah A. Ferguson, The Law Office of Deborah A.
Ferguson, PLLC, Craig Durham, Durham Law Office,
PLLC, Boise, ID, Christopher F. Stoll, Shannon Minter, San
Francisco, CA, for Plaintiffs.
Monte N. Stewart, Daniel W. Bower, Stewart Taylor &
Morris PLLC, Thomas C. Perry, Cally Ann Younger, Office
of the Governor, Steven Lamar Olsen, Office of the Attorney
General, Boise, ID, for Defendants.
Clay R. Smith, W. Scott Zanzig, Office of the Attorney
General, Boise, ID, for Defendants/DefendantIntervenor.
Opinion
MEMORANDUM DECISION AND ORDER
CANDY WAGAHOFF DALE, United States Chief
Magistrate Judge.
I. INTRODUCTION
*1 It is precisely because the issue raised by this case
touches the heart of what makes individuals what they are
that we should be especially sensitive to the rights of those
whose choices upset the majority.
The Honorable Harry Blackmun
1
This case asks a basic and enduring question about the
essence of American government: Whether the will of the
majority, based as it often is on sincere beliefs and democratic
consensus, may trump the rights of a minority. Plaintiffs
are two same-sex couples who desire to marry in Idaho and
two same-sex couples who legally married in other states
and wish to have their marriages recognized in Idaho. Under
the Constitution and laws of the State of Idaho (Idaho's
Marriage Laws), marriage between a man and a woman is
the only legally recognized domestic union. Idaho effectively
prohibits same-sex marriage and nullifies same-sex marriages
legally celebrated in other states. Plaintiffs request the Court
declare these laws unconstitutional and enjoin Idaho from
enforcing them, which would allow the Unmarried Plaintiffs
to marry and the Married Plaintiffs to be legally recognized
as married in the state they consider home.
Although 17 states legally recognize same-sex marriages,
2
Idaho is one of many states that has chosen the opposite
course. Like courts presiding over similar cases across the
country, the Court must examine whether Idaho's chosen
course is constitutional. Significantly, the Supreme Court of
the United States recently held that the federal government
cannot constitutionally define marriage as a legal union
between one man and one woman. United States v. Windsor,
U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013).
Writing for the majority in Windsor, Justice Kennedy
reasoned the purpose and effect of the federal man-
woman marriage definition was to disparage and injure
legally married same-sex couples in derogation of the liberty,
due process, and equal protection guaranteed by the Fifth
Amendment to the United States Constitution. Id. at 2696.
Here, the Court considers a related but distinct question: Do
Idaho's Marriage Laws deny Plaintiffs the due process or
equal protection guaranteed by the Fourteenth Amendment to
the United States Constitution?
After careful consideration, the Court finds Idaho's
Marriage Laws unconstitutional. This conclusion reaffirms a
longstanding maxim underlying our system of government
a state's broad authority to regulate matters of state concern
does not include the power to violate an individual's protected
constitutional rights. See, e.g., id. at 2691 (State laws
defining and regulating marriage, of course, must respect the
constitutional rights of persons....). Idaho's Marriage Laws
deny its gay and lesbian citizens the fundamental right to
marry and relegate their families to a stigmatized, second-
class status without sufficient reason for doing so. These
laws do not withstand any applicable level of constitutional
scrutiny.
II. BACKGROUND
*2 Marriage works a fundamental change on the lives
of all who experience it. The decision to marry is both a
deeply personal expression of love and a public declaration
of commitment. For many, marriage is also a profoundly
important religious institution, cementing and celebrating
a life-long union enriched by enduring traditions. These
traditions vary from faith to faith, but when most people
think of marriage they think of the ceremonythe wedding
with all of the hope and joy those pivotal moments entail.
Compared to the immense personal and spiritual significance
of marriage as a ceremonial rite, the civil institution of
marriage is much more prosaic.
A. Idaho's Marriage Laws
A series of licensing statutes govern civil marriage in Idaho.
As far as the State is concerned, marriage is a contract
evidenced by a State-issued license and a solemnization.
Idaho Code 32201(1). The solemnization itself can be
secular or religious, and the officiant need not be an ordained
minister. Id. 32303 to 304. Regardless of their preferred
method of solemnization, opposite-sex couples are eligible
for a marriage license so long as they meet certain minimal
requirements. See id. 32202 (age limitations); 205, 206
(consanguinity limitations); 207 (prohibition of polygamous
marriages).
A multitude of legal benefits and responsibilities flow from a
valid civil marriage contract. These marital benefits include
the right to be recognized as a spouse when petitioning to
adopt a child born to a spouse, see id. 161503, 1506;
have access to an ill spouse at the hospital and to make
medical decisions for an ill or incapacitated spouse without
a written power of attorney, see id. 394504; file a joint
state income tax return as a married couple, see id. 633031;
inherit a share of the estate of a spouse who dies without a
will, see id. 152102; preclude a spouse from testifying
in a court proceeding about confidential communications
made during the marriage, see id. 9203; and jointly own
community property with right of survivorship, see id. 15
6401. These incidents of marriage touch every aspect of a
person's life. From the deathbed to the tax form, property
rights to parental rights, the witness stand to the probate court,
the legal status of spouse provides unique and undeniably
important protections. Opposite-sex married couples enjoy
many of these benefits by automatic operation of law.
A couple need not marry in Idaho to enjoy these benefits, as
Idaho generally follows the so-called place of celebration
rule. See Morrison v. Sunshine Mining Co., 64 Idaho 6,
127 P.2d 766, 769 (1942) (Having assumed and entered
into the marital relation with appellant in Montana, the status
thus established followed Morrison to Idaho and could not
be shed like a garment on entering this state.). Under this
longstanding rule, a marriage contracted outside Idaho will be
valid in Idaho if the marriage is valid where contracted. See
Idaho Code 32209. That is, unless the marriage is between
two persons of the same sex. Id.
*3 Same-sex couples are categorically prohibited from
obtaining a marriage license in Idaho or from having their
otherwise valid out-of-state marriages recognized in Idaho.
But for the fact they are same-sex couples, Plaintiffs would
either be recognized as married or be eligible to marry.
Plaintiffs challenge three specific provisions of Idaho law.
3
First, Idaho Code 32201 defines marriage as a personal
relation arising out of a civil contract between a man and
a woman, to which the consent of the parties capable of
making it is necessary. Id. 32201(1). This statute prohibits
same-sex marriage regardless of whether a couple otherwise
qualifies for a marriage license.
Second, Idaho Code 32209 provides the mechanism
by which Idaho recognizes the legal validity of marriages
contracted in other states or countries. The statute provides:
All marriages contracted without this
state, which would be valid by the laws
of the state or country in which the
same were contracted, are valid in this
state, unless they violate the public
policy of this state. Marriages that
violate the public policy of this state
include, but are not limited to, same-
sex marriages, and marriages entered
into under the laws of another state or
country with the intent to evade the
prohibitions of the marriage laws of
this state.
Id. 32209. This statute creates a two-tiered system for out-
of-state marriages. While opposite-sex couples benefit from
the place of celebration rule, married same-sex couples shed
their marital status upon entering Idaho. Although the State's
non-recognition policy is not limited to same-sex marriages
and marriages contracted with the intent to evade Idaho law,
the statute lists no other form of marriage specifically.
Third, the Idaho Constitution effectively bans legal
recognition of same-sex unions. In November of 2006, a
majority of Idaho's electorate voted to add the following
language to the Idaho Constitution: A marriage between a
man and a woman is the only domestic legal union that shall
be valid or recognized in this state. Idaho Const. Art. III,
28.
This provision has the combined legal effect of the two
statutes referenced above. But, by virtue of its place in
the Idaho Constitution, the amendment imposes powerful
restraints on Idaho's Legislature and Judiciary. The provision
effectively precludes a state court from finding that Idaho
law requires the State to recognize any type of same-sex
union. And it precludes every legislative body in Idaho from
recognizing civil unions or any other same-sex relationship
approximating marriage. Absent a superseding constitutional
amendment, no branch of state government may authorize or
recognize the marriage of two persons of the same sex. Thus,
Idaho's Marriage Laws prevent same-sex couples, whether
married or unmarried, from obtaining the marital status and
benefits afforded to opposite-sex couples.
B. The Plaintiffs
Plaintiffs are four same-sex couples. The Married Plaintiffs,
Susan Latta and Traci Ehlers, and Lori Watsen and Sharene
Watsen, legally married in other states and wish to have their
marriages recognized in Idaho. The Unmarried Plaintiffs,
Shelia Robertson and Andrea Altmayer, and Amber Beierle
and Rachael Robertson, desire to be married in Idaho,
but the County Recorder of Ada County, Defendant Rich,
denied their marriage license applications. The following
undisputed facts are contained in the pleadings and in
Plaintiffs' declarations.
1. Susan Latta and Traci Ehlers
*4 Susan Latta has lived in Boise for 22 years. Traci
Ehlers has resided in Idaho's Treasure Valley for 38 years.
Latta is a professional artist and adjunct professor at Boise
State University, and Ehlers owns a small business in Boise.
They met at a book club and began dating in 2003. Ehlers
proposed to Latta in 2004, and, in 2006, the couple celebrated
a meaningful but not legally binding wedding ceremony
in Boise. (Latta Dec. 11, Dkt. 48.) In 2008, the couple
legally married in California soon after that state began
allowing same-sex marriages. Neither Latta nor Ehlers had
been married before, but they decided to marry because they
wanted to spend the rest of their lives together. Although
Ehlers never thought she would have children, she is now
step-mother to Latta's children and step-grandmother to
Latta's grandchildren.
Both Latta and Ehlers attest that Idaho's refusal to
recognize their marriage complicates and demeans their
lives. They worry about the ramifications of aging without
a legally recognized marriage, a reality that implicates
taxes, inheritance, Social Security benefits, hospital visitation
rights, and medical decision-making. Although they can file a
married tax return for federal purposes, Idaho law requires
them to file single state tax returns. Latta and Ehlers plan to
seek professional assistance to prepare their state tax returns.
The couple also is unsure about the status of property they
acquired during their marriage because a quitclaim deed
purporting to grant each of them title to community property
with right of survivorship may not be enforceable absent a
legally recognized marriage. Ehlers explains, it is painful
that the state we love, the place that we have made our home,
where we vote and pay taxes, where we have our businesses,
where we participate, and volunteer, and donate, treats us as
second-class citizens. (Ehlers Dec. 18, Dkt. 49.)
2. Lori Watsen and Sharene Watsen
Lori and Sharene Watsen reside in Boise, where Sharene
works as a physician assistant and Lori works as a social
worker. Friends introduced the Watsens in 2009, and the
two have been together as a couple since their first date. In
2011, the couple married in a small legal ceremony in New
York. They held a larger celebration of their marriage at their
church in Boise during the summer of 2012. The Watsens
both describe their marriage as an important symbol of their
love for and commitment to each other, not least because
they both grew up in deeply religious families that value the
institution greatly.
Also in 2012, the Watsens decided to start a family. Their son
was conceived by artificial insemination in September 2012,
and Sharene gave birth in May 2013. Although they requested
that Lori be listed as their son's parent, his birth certificate lists
only Sharene. In the summer of 2013, the Watsens hired an
attorney to assist Lori's adoption of their son. An Ada County
magistrate judge dismissed the adoption petition and, despite
their valid New York marriage, deemed Lori to be Sharene's
unmarried cohabitating, committed partner without legal
standing to adopt Sharene's son. (S. Watsen Dec. Ex. C., Dkt.
513 at 5.) The couple felt demeaned by the magistrate judge's
decision, and Lori plans to again petition for adoption.
4
*5 Like Latta and Ehlers, the Watsens are concerned about
the many complications Idaho's Marriage Laws add to their
family life. Lori Watsen must create a new medical power
of attorney every six months, for, without one, she cannot
consent to medical treatment for her son. In addition, the
Watsens have the same tax and community property problems
as Latta and Ehlers. Above all, Lori Watsen wants their son
to have the same pride in us, as his parents, that I feel for
my parents, who have been married for 50 years. (L. Watsen
Dec. 36, Dkt. 50.)
3. Shelia Robertson and Andrea Altmayer
Shelia Robertson and Andrea Altmayer live together in Boise.
Altmayer works as a massage therapist. Robertson, who has
advanced training in communicative disorders, teaches deaf
students at a local school district and works part-time as a
video relay interpreter.
The two have been in a committed, exclusive relationship
since friends introduced them 16 years ago. If Idaho allowed
same-sex marriages, they would have married years ago.
Although the couple considered marrying outside Idaho, they
did not wish to incur the expense of traveling away from
their family and friends only to return home with a marriage
not recognized in Idaho. Even so, Robertson and Altmayer
decided to start a family. Altmayer became pregnant through
artificial insemination and gave birth to their son in 2009.
Similar to the Watsens' experience, Robertson and Altmayer
completed birth certificate forms identifying Altmayer as the
mother and Robertson as a parent. But the birth certificate
lists only Altmayer as their son's parent. The lack of a
legally recognized parental relationship between Robertson
and her son means she cannot consent to medical treatment for
him and otherwise prevents the couple from equally sharing
numerous parental responsibilities. Robertson and Altmayer
worry their son will not have the security and stability
afforded by two legal parents. Both are deeply concerned their
son will grow up believing there is something wrong with his
family because his parents cannot marry.
On November 6, 2013, Robertson and Altmayer submitted
a marriage license application to the Ada County Recorder.
The application was denied only because Robertson and
Altmayer are both women. Demeaned but undeterred by this
experience, the couple wishes to be married so that other
people understand that we are a family, in a permanent life-
long relationship. (S. Robertson Dec. 15, Dkt. 53.)
4. Amber Beierle and Rachael Robertson
Amber Beierle and Rachael Robertson both grew up, reside,
and wish to marry in Idaho. Beierle holds a M.S. in Applied
Historical Research and works for the Idaho State Historical
Society. Roberston is an Army veteran, having served a tour
of duty in Iraq from June 2004 to November 2005. During her
military service, Robertson earned the Army Combat Medal
and the Soldier Good Conduct Medal. She was honorably
discharged from the Army in 2008 and now manages a
warehouse in Boise.
*6 Beierle and Robertson met in 2006 and began dating
in 2010. The two have been in a committed, exclusive
relationship since Valentine's Day, 2011. They bought a
house together in December of 2012. The couple plans to raise
children, but they worry their children will grow up thinking
something is wrong with their family because Beierle and
Robertson cannot marry. Although they considered marrying
in another state, they wish to be married in their home state of
Idaho. And, even if they were married in another state, Idaho
law would prevent them from being buried together at the
Idaho Veterans Cemetery because they are a same-sex couple.
Beierle and Robertson also applied for a marriage license on
November 6, 2013. Although they otherwise qualify for a
marriage license, the Ada County Recorder's Office denied
the application because they are both women. This experience
demeaned Beierle and Robertson. They want to have the
same freedom as opposite-sex couples to marry the person
[they] love and to share the benefits and responsibilities
of marriage and in the recognition and protections of
marriage. (Beierle Dec. 19, Dkt. 54.)
C. The Defendants
Defendant C.L. Butch Otter is the Governor of the State
of Idaho. He is sued in his official capacity. As Governor,
Defendant Otter is responsible for upholding and ensuring
compliance with the Idaho Constitution and statutes enacted
by the Legislature, including the marriage laws at issue in this
case. See Idaho Const. Art. IV, 5 (The supreme executive
power of the state is vested in the governor, who shall see that
the laws are faithfully executed.).
Defendant Christopher Rich is Recorder of Ada County,
Idaho. He is sued in his official capacity. As the Ada County
Recorder, Defendant Rich has the authority to issue marriage
licenses to any party applying for the same who may be
entitled under the laws of this state to contract matrimony.
Idaho Code 32401. On November 6, 2013, an authorized
deputy of Defendant Rich denied the Unmarried Plaintiffs'
applications for marriage licenses because, as same-sex
couples, they were not entitled to contract matrimony in
Idaho.
Early in this case, the State of Idaho moved and was
permitted to intervene as a defendant. (Dkt. 38.) The State,
by and through the Idaho Attorney General, asserts a
strong, independent interest in defending Idaho's laws against
constitutional attack. Throughout this litigation, the State has
joined in Recorder Rich's motions and briefing.
D. Requested Relief
Plaintiffs bring suit under 42 U.S.C. 1983, alleging that
Governor Otter and Recorder Rich acted in their official
capacities and under color of law to deprive them of rights
protected by the Fourteenth Amendment to the United States
Constitution.
5
They request a declaration that all Idaho
laws prohibiting same-sex marriage or barring recognition
of valid out-of-state same-sex marriages violate the due
process and equal protection guarantees in the Fourteenth
Amendment. They also request a permanent injunction
against enforcement of any Idaho law that would prohibit or
withhold recognition of same-sex marriages. These claims
constitute a facial constitutional attack on the validity of
any Idaho law that prohibits same-sex marriage in Idaho
or withholds recognition of same-sex marriages validly
contracted in another state.
6
III. STANDARD OF REVIEW
*7 [1] The parties seek judicial resolution of this case
via three motions: Defendant Recorder Rich and Defendant
Intervenor Idaho's motion to dismiss for failure to state a
claim (Dkt. 43)
7
, Plaintiffs' motion for summary judgment
(Dkt. 45), and Defendant Governor Otter's motion for
summary judgment (Dkt. 57). Typically, motions to dismiss
are evaluated under different standards than motions for
summary judgment. But here, the motion to dismiss must be
treated as a motion for summary judgment.
Recorder Rich and DefendantIntervenor Idaho's motion to
dismiss attaches and references numerous documents outside
the pleadings. These documents include five articles on
marriage and parenting. (Dkt. 306 to 10.) The parties
vigorously dispute the meaning and import of the sociological
literature on these points. Because the Court considered
the literature submitted with the motion to dismiss, the
motion must be treated as a motion for summary judgment.
Fed.R.Civ.P. 12(d); see also Olsen v. Idaho State Bd. of
Med., 363 F.3d 916, 92122 (9th Cir.2004) (finding a
represented party's submission of extra-pleading materials
justified treating motion to dismiss as motion for summary
judgment). The Court will evaluate all pending motions under
the summary judgment standard.
A party is entitled to summary judgment when 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).
When parties submit cross-motions for summary judgment,
the court must review the evidence submitted in support of
each cross-motion and decide each on its own merits. Fair
Housing Council of Riverside County, Inc. v. Riverside Two,
249 F.3d 1132, 1136 (9th Cir.2001).
IV. ANALYSIS
The Court has considered the parties' briefs and supporting
materials, as well as oral arguments presented during a May
5, 2014 hearing on all dispositive motions. As a preliminary
matter, the Court finds the Supreme Court's summary
decision in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34
L.Ed.2d 65 (1972), does not prevent lower federal courts from
deciding the constitutional issues in this case. With respect
to Plaintiffs' due process claim, Idaho's Marriage Laws are
subject to strict scrutiny because they infringe upon Plaintiffs'
fundamental right to marry. Under the Equal Protection
Clause, Idaho's Marriage Laws are subject to heightened
scrutiny because they intentionally discriminate on the basis
of sexual orientation. The Court finds that Idaho's Marriage
Laws do not survive any applicable level of constitutional
scrutiny and therefore violate the Equal Protection and
Due Process Clauses of the Fourteenth Amendment to the
United States Constitution. The reasons for these findings are
discussed below.
A. Baker v. Nelson
[2] Defendants initially argue that Baker v. Nelson is
binding precedent that shields Idaho's Marriage Laws from
constitutional attack. Baker was an appeal to the United States
Supreme Court from a decision of the Supreme Court of
Minnesota. The Minnesota court held that neither Minnesota
law nor the United States Constitution required the issuance
of marriage licenses to a same-sex couple. Baker v. Nelson,
291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed,
409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). Based on a
brief review of then-existing due process and equal protection
jurisprudence, the Minnesota court rejected the plaintiffs' due
process and equal protection claims. On appeal, the Supreme
Court summarily dismissed the case for want of a substantial
federal question. Baker, 409 U.S. at 810, 93 S.Ct. 37.
*8 [3] [4] [5] Summary dismissals have real but narrow
precedential value. A summary disposition affirms only the
judgment of the court below, and no more may be read
into [the] action than was essential to sustain the judgment.
Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S.
173, 18283, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (citations
omitted). The dismissal prevent[s] lower courts from coming
to opposite conclusions on the precise issues presented and
necessarily decided in the action. Mandel v. Bradley, 432
U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). When
a case raises the precise issue addressed by a summary
dismissal, the lower courts are bound ... until such time as
the [Supreme] Court informs them that they are not. Hicks
v. Miranda, 422 U.S. 332, 34445, 95 S.Ct. 2281, 45 L.Ed.2d
223 (1975) (quotation omitted). Defendants correctly note
that Baker necessarily decided the precise issues presented
in this case and that the Supreme Court has not expressly
overruled Baker in the four decades after it was summarily
decided.
Although Baker speaks to the precise issues presented in
this case, there is good reason to find its guidance no longer
binding. The Supreme Court has instructed that inferior
federal courts had best adhere to the view that if the Court has
branded a question as insubstantial, it remains so except when
doctrinal developments indicate otherwise. Hicks, 422 U.S.
at 344, 95 S.Ct. 2281 (emphasis added). Defendants make
forceful arguments about the binding nature of summary
dismissals, but they overlook the doctrinal developments
exception stated in Hicks. In fact, Defendants cite only one
case that analyzes the doctrinal developments since Baker,
and that case was decided before Windsor. See Jackson v.
Abercrombie, 884 F.Supp.2d 1065, 108586 (D.Haw.2012)
(concluding pre-Windsor doctrinal developments did not
overcome Baker ). The Supreme Court's due process and
equal protection jurisprudence has developed significantly
in the four decades after Baker, and, in last year's Windsor
decision, the Court dramatically changed tone with regard to
laws that withhold marriage benefits from same-sex couples.
In 1972, the Supreme Court had not recognized gender as a
quasi-suspect classification. See Frontiero v. Richardson, 411
U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).
8
Nor had the
Court applied heightened equal protection scrutiny to gender-
based classifications. See Craig v. Boren, 429 U.S. 190, 97
S.Ct. 451, 50 L.Ed.2d 397 (1976). It was not until 1996 that
the Supreme Court recognized laws based on a bare ...
desire to harm homosexuals were not rationally related
to any legitimate government interest. Romer v. Evans, 517
U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (quoting
U.S. Dept. of Agric. v. Moreno, 413 U.S. 528, 93 S.Ct. 2821,
37 L.Ed.2d 782 (1973)). Since Baker, the Supreme Court's
equal protection jurisprudence has expanded, scrutinizing
both gender and sexual orientation discrimination in more
exacting ways.
In 1972, states could constitutionally criminalize private,
consensual sex between adults of the same sex based on
nothing more than moral disapproval of the homosexual
lifestyle. See Bowers v. Hardwick, 478 U.S. 186, 106
S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence
v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d
508 (2003). But, just 11 years ago, the Court reversed
course and held the government could not lawfully demean
[homosexuals'] existence or control their destiny by making
their private sexual conduct a crime. Lawrence, 539 U.S.
at 574, 123 S.Ct. 2472. Lawrence reaffirmed that the Due
Process Clause protects fundamental rights of personhood,
definitively establishing that individuals do not forfeit their
rights because of their sexual orientation. Id. At the very
least, Romer and Lawrence strongly suggest that state-
approved discrimination based on sexual orientation is now a
substantial federal question.
*9 Although courts formerly were reluctant to find these
developments sufficient to overcome Baker, e.g., Jackson,
884 F.Supp.2d at 108586, much has changed in just the
last year. In June of 2013, the Supreme Court struck down
the federal man-woman definition of marriage because, when
applied to legally married same-sex couples, it demean[ed]
the couple, whose moral and sexual choices the Constitution
protects. Windsor, 133 S.Ct. at 2694. In doing so, the
Supreme Court affirmed the decision of the United States
Court of Appeals for the Second Circuit, which expressly
held that Baker did not foreclose review of the federal
marriage definition. Windsor v. United States, 699 F.3d
169, 17880 (2d Cir.2012) (Even if Baker might have had
resonance ... in 1971, it does not today.). Also last summer,
the Supreme Court declined to review a decision invalidating
California's voter-approved man-woman marriage definition.
Hollingsworth v. Perry, U.S. , 133 S.Ct. 2652, 186
L.Ed.2d 768 (2013). The Supreme Court dismissed the appeal
not because Baker rendered the question insubstantial, but
because the law's supporters lacked standing to defend it after
the State of California decided not to. These are doctrinal
developments sufficient to overcome the narrow precedential
effect of a summary dismissal.
Since Windsor, no federal court has ruled to the contrary.
In fact, every court to consider Baker in the context of a
post-Windsor challenge to laws against same-sex marriage
has found that doctrinal developments since 1972 provide
ample reason to reach the merits. Kitchen v. Herbert, 961
F.Supp.2d 1181, 119495 (D.Utah 2013); Bishop v. U.S.,
962 F.Supp.2d 1252 (N.D.Okla.2014); Bostic v. Rainey, 970
F.Supp.2d 456, 46870 (E.D.Va.2014); McGee v. Cole,
F.Supp.2d , , 2014 WL 321122 at *810
(S.D.W.Va. Jan. 29, 2014); Bourke v. Beshear, F.Supp.2d
, 2014 WL 556729 (W.D.Ky. Feb. 12, 2014); De Leon v.
Perry, 975 F.Supp.2d 632, 64649 (W.D.Tex.2014); DeBoer
v. Snyder, 973 F.Supp.2d 757, 773 n. 6 (E.D.Mich.2014).
Consistent with the findings of its sister courts, the Court
concludes that Baker is not controlling and does not bar
review of Plaintiffs' claims.
B. Due Process
[6] The Due Process Clause of the Fourteenth Amendment
to the United States Constitution guarantees fair process and
places substantive limits on the States' authority to constrain
individual liberty. Many of our most cherished liberties
originate in the Bill of Rightsamong them the freedoms
of speech, press, and religion; the right to be free from
unreasonable searches and seizures; and the right to just
compensation when the government takes private property.
Initially, the Bill of Rights guarded against only actions by the
federal government. But, upon the adoption of the Fourteenth
Amendment, a more comprehensive protection came into
force: No State shall make or enforce any law which shall
abridge the privileges and immunities of citizens of the United
States; nor shall any State deprive a person of life, liberty, or
property, without due process of law; nor deny to any person
the equal protection of the laws. U.S. Const. amend. XIV,
1. Now, most of the Bill of Rights applies to the states by
virtue of the Fourteenth Amendment. See McDonald v. City of
Chicago, 561 U.S. 742, 130 S.Ct. 3020, 303436, 3050, 177
L.Ed.2d 894 (2010) (chronicling selective incorporation of
the Bill of Rights and incorporating the Second Amendment).
*10 The Supreme Court also has recognized that the liberty
guaranteed by the Fourteenth Amendment extends beyond the
Bill of Rights to the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery
of human life. Beliefs about these matters could not define
the attributes of personhood were they formed under the
compulsion of the State. Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674
(1992).
[7] [8] An individual's protected liberties include certain
fundamental rights of personhood. These rights center on the
most significant decisions of a lifetimewhom to marry,
whether to have children, and how to raise and educate
children. Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. These
choices are protected because they implicate associational
rights ... of basic importance in our society, rights sheltered
by the Fourteenth Amendment against the State's unwarranted
usurpation, disregard, or disrespect. M.L.B. v. S.L.J., 519
U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996)
(quoting Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct.
780, 28 L.Ed.2d 113 (1971)).
[9] Ordinarily, laws do not offend the Due Process Clause
when they are rationally related to a legitimate government
interest. Washington v. Glucksberg, 521 U.S. 702, 722, 117
S.Ct. 2258, 138 L.Ed.2d 772 (1997). But laws that implicate
fundamental rights are subject to strict scrutiny, surviving
only if narrowly tailored to a compelling government interest.
Reno v. Flores, 507 U.S. 292, 30102, 113 S.Ct. 1439,
123 L.Ed.2d 1 (1993). The essential issue for due process
purposes is whether Idaho's Marriage Laws infringe on
Plaintiffs' fundamental rights.
The decisions of the United States Supreme Court confirm
that the right to marry is of fundamental importance for all
individuals. Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct.
673, 54 L.Ed.2d 618 (1978). The freedom to marry has long
been recognized as one of the vital personal rights essential
to the orderly pursuit of happiness by free men and women.
Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d
1010 (1967). It is an association that promotes a way of
life, not causes; a harmony in living, not political faiths; a
bilateral loyalty, not commercial or social projects. Griswold
v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d
510 (1965).
Against this background, Plaintiffs wish to exercise their
fundamental right to marry. Defendants acknowledge that
the fundamental right to marry exists, but they argue it does
not extend to same-sex couples. Rather, Defendants contend
Plaintiffs seek recognition of a new fundamental right, the
right to same-sex marriage.
[10] [11] [12] Defendants appropriately note that the
Supreme Court has explicitly cautioned against finding new
fundamental rights. [T]he Due Process Clause specially
protects those fundamental rights and liberties which are,
objectively, deeply rooted in this Nation's history and
tradition, and implicit in the concept of ordered liberty,
such that neither liberty nor justice would exist if they were
sacrificed. Glucksberg, 521 U.S. at 72021, 117 S.Ct. 2258
(quotations and citations omitted). A careful description of
the newly asserted liberty interest also is necessary. Id. at
721, 117 S.Ct. 2258. Moreover, the Nation's history, legal
traditions, and practices ... provide the crucial guideposts
for responsible decisionmaking, that direct and restrain [the
Court's] exposition of the Due Process Clause. Id. (quotation
and citation omitted).
*11 The Glucksberg decision is instructive on how the
Supreme Court evaluates new fundamental rights. There, the
plaintiffs asserted the State of Washington's ban on causing
or aiding another person's suicide violated a constitutionally
protected right to choose the manner of one's own death.
The Supreme Court surveyed the history of the law regarding
suicide, concluding [t]he history of the law's treatment of
assisted suicide in this country has been and continues to be
one of the rejection of nearly all efforts to permit it. Id. at
728, 117 S.Ct. 2258. Given this largely unbroken tradition,
the Court declined to recognize a new constitutionally
protected right to suicide or assisted suicide. The Supreme
Court then upheld Washington's assisted suicide ban because
the ban rationally related to Washington's legitimate interest
in preserving human life.
The restraint exercised in Glucksberg is not warranted here.
Although marriage is not mentioned in the Bill of Rights,
the Supreme Court has uniformly treated marriage as an
established fundamental right. A long line of cases recognize
marriage as a fundamental right, variously describing it as
a right of liberty, Meyer v. Nebraska, 262 U.S. 390, 399,
43 S.Ct. 625, 67 L.Ed. 1042 (1923), of privacy, Griswold,
381 U.S. at 486, 85 S.Ct. 1678, and of association, M.L.B.,
519 U.S. at 116, 117 S.Ct. 555. This exalted status among
personal rights is based on the recognition that marriage
involv[es] the most intimate and personal choices a person
may make in a lifetime, choices central to personal dignity
and autonomy.... Casey, 505 U.S. at 851, 112 S.Ct. 2791. In
fact, Glucksberg cites the right to marry as one of the well-
established fundamental rights. 521 U.S. at 720, 117 S.Ct.
2258.
Because the right to marry is fundamental, the Supreme
Court has repeatedly invalidated laws that infringe upon
it. In the pathmarking case of Loving v. Virginia, our
Nation's highest court found unconstitutional a Virginia
statute banning interracial marriages. 388 U.S. 1, 87 S.Ct.
1817, 18 L.Ed.2d 1010 (1967). Similar to the Idaho Marriage
Laws challenged here, Virginia's anti-miscegenation laws
prohibited the issuance of marriage licenses to interracial
couples and further forbade attempts to evade the ban by
marrying out-of-state. Loving, 388 U.S. at 46, 87 S.Ct.
1817. Violation of these Virginia's law was a criminal offense
punishable by imprisonment for up to five years. Id. at 5, 87
S.Ct. 1817. Regardless of the historical precedent for such
laws, the Supreme Court made clear that the freedom to
marry or not marry[ ] a person of another race resides with
the individual and cannot be infringed by the State. Id. at 12,
87 S.Ct. 1817.
The Supreme Court reaffirmed the fundamental and
individual character of the right to marry in Zablocki v.
Redhail. There, the Court reviewed a Wisconsin law that
required residents to seek court permission to marry if
a Wisconsin resident had children not in the resident's
custody. Zablocki, 434 U.S. at 375, 98 S.Ct. 673. Under
that law, permission to marry would be granted only if
the resident could show full compliance with any child-
support obligations and further demonstrate children covered
by a support order were not then and [were] not likely
thereafter to become public charges. Id. (quoting Wis.
Stat. 245.10 (1973)). Despite the State's interest in child
welfare, the Supreme Court invalidated the statute because it
unnecessarily impinge[d] on the right to marry in a context
where Wisconsin had numerous other means for advancing
its interest. Id. at 38889, 98 S.Ct. 673.
*12 Next, in 1987, the Supreme Court struck down a
Missouri prison regulation that restricted inmates' right to
marry. Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96
L.Ed.2d 64 (1987). Under the regulation, an inmate could
marry only with approval from the superintendent of prisons,
permission that would be granted under compelling
circumstances such as pregnancy or the birth of an illegitimate
child. Id. at 82, 107 S.Ct. 2254. While prisoners are
subject to a variety of restrictions on their constitutional
liberties, the Court found that [m]any important attributes
of marriage remain, however, after taking into account the
limitations imposed by prison life. Id. at 95, 107 S.Ct. 2254.
Recognizing the emotional, public, and spiritual significance
of marriage, as well as the many government benefits
that flow from marital status, the Court struck down the
prison regulation. According to the Supreme Court, these
incidents of marriage, like the religious and personal aspects
of the marriage commitment, are unaffected by the fact
of confinement or the pursuit of legitimate penological
objectives. Id. at 9596, 107 S.Ct. 2254.
More recently, the Supreme Court confirmed that gay and
lesbian individuals do not forfeit their constitutional liberties
simply because of their sexual orientation. Lawrence, 539
U.S. 558, 123 S.Ct. 2472. The Court observed that our
laws and tradition afford constitutional protection to personal
decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and education. Id. at 574,
123 S.Ct. 2472. Emphasizing that these are personal rights,
the Court concluded [p]ersons in a homosexual relationship
may seek autonomy for these purposes, just as heterosexual
persons do. Id. (emphasis added). And, less than one year
ago, the Supreme Court struck down the federal Defense of
Marriage Act's man-woman definition of marriage because
it amounted to unconstitutional interference with the equal
dignity of same-sex marriages recognized by some states.
Windsor, 133 S.Ct. at 2693. The message of these cases is
unmistakableall individuals have a fundamental right to
marry.
Defendants argue these cases do not apply here because
the Supreme Court has recognized a fundamental right
to only heterosexual marriage. Relying on Glucksberg,
the Defendants characterize this case as one involving
the right to same-sex marriage, a right lacking
both historical precedent and constitutional protection.
Defendants' argument suffers from three critical flaws.
This new right argument attempts to narrowly parse a right
that the Supreme Court has framed in remarkably broad
terms. Loving was no more about the right to interracial
marriage than Turner was about the prisoner's right to
marry or Zablocki was about the dead-beat dad's right to
marry. Even in cases with such vastly different facts, the
Supreme Court has consistently upheld the right to marry,
as opposed to a sub-right tied to the facts of the case. While
Glucksberg demands that new rights be carefully described
and deeply rooted, the cases above demonstrate that the
Supreme Court has long recognized an unembellished right
to marry.
*13 On the other hand, the holding in Glucksberg followed
directly from the unbroken pattern of state laws and legal
traditions disapproving suicide and assisted suicide. 521
U.S. at 71011, 117 S.Ct. 2258 (Indeed, opposition to and
condemnation of suicideand, therefore, assisting suicide
are consistent and enduring themes of our philosophical,
legal, and cultural heritages.). Given that context, it was a
truly novel proposition to say that the concept of liberty
substantively protects a person's freedom to end his or her life.
Finding the policy of condemning and discouraging suicide
both deeply rooted and nearly universal in contemporary
society, the Court declined to recognize a new fundamental
right. Id. at 728, 117 S.Ct. 2258.
The context here is dramatically different. Far from a uniform
pattern of laws rejecting the practice, a fast-growing number
of states now recognize that same-sex and opposite-sex
marriages are equal. And, while Glucksberg makes much
of the consistent legal, medical, and social policies against
suicide, the Court is not aware of a similarly pervasive policy
against marriage. To the contrary, the Defendants make
abundantly clear that marriage is a life-affirming institution
something to be encouraged because it provides stability
not only for couples, but also for children.
Finally, and most critically, the Supreme Court's marriage
cases demonstrate that the right to marry is an individual
right, belonging to all. See Lawrence, 539 U.S. at 574,
123 S.Ct. 2472. If every individual enjoys a constitutional
right to marry, what is the substance of that right for gay
or lesbian individuals who cannot marry their partners of
choice? Traditional man-woman marriage is no answer, as
this would suggest that gays and lesbians can switch off their
sexual orientation and choose to be content with the universe
of opposite-sex partners approved by the State.
9
Defendants
offer no other answer.
In their effort to avoid the question, Defendants commit
the same analytical mistake as the majority in Bowers
v. Hardwick, the decision that declined to announce a
fundamental right to engage in homosexual sodomy. 478
U.S. 186, 191, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986),
overruled by Lawrence, 539 U.S. at 577, 123 S.Ct. 2472. The
crucial mistake in Bowers was that the majority narrowed and
thus fail[ed] to appreciate the extent of the liberty at stake.
Lawrence, 539 U.S. at 567, 123 S.Ct. 2472. For that reason,
the Supreme Court in Lawrence concluded Bowers was not
correct when it was decided, and it is not correct today. Id.
at 577, 123 S.Ct. 2472. Lawrence instructs not only that gay
and lesbian individuals enjoy the same fundamental rights to
make intimate personal choices as heterosexual individuals
enjoy, but that judicial attempts to parse those rights out of
existence will be met with a harsh rebuke.
The Supreme Court's marriage cases recognize an individual's
fundamental right to marry. The right transcends one's
race, confinement to prison, or ability to support children.
Lawrence unequivocally cements marriage as among the
constitutionally protected liberties shared by homosexual and
heterosexual persons alike. The teaching of these cases is
that the fundamental right to marry cannot be narrowed in
the manner Defendants urge. Idaho's Marriage Laws render
the Plaintiff couples legal strangers, stripping them of the
choice to marry or remain married in the state they call home.
Therefore, Idaho's Marriage Laws impermissibly infringe on
Plaintiffs' fundamental right to marry.
10
C. Equal Protection
*14 [13] [14] Plaintiffs also claim Idaho's Marriage
Laws violate the Equal Protection Clause of the Fourteenth
Amendment. That clause commands that no State shall
deny to any person within its jurisdiction the equal protection
of the laws, which is essentially a direction that all persons
similarly situated should be treated alike. City of Cleburne
v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct.
3249, 87 L.Ed.2d 313 (1985) (quoting U.S. Const., amend.
XIV., 1). The equal protection guarantee is in tension with
the reality that laws almost inevitably draw lines between
groups of people, advantaging some and disadvantaging
others. Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620,
134 L.Ed.2d 855 (1996). The Supreme Court has developed
tiers of judicial scrutiny in an effort to reconcile this practical
reality with the constitutional principle. The level of scrutiny
depends on the characteristics of the disadvantaged group or
the rights implicated by the classification.
[15] [16] [17] [18] [19] A law that neither targets a
suspect class nor burdens a fundamental right is subject to
rational basis scrutiny. Heller v. Doe, 509 U.S. 312, 319
21, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). The Court in
such cases presumes the law is valid unless the challenger can
show the difference in treatment bears no rational relation to
a conceivable government interest. Id. A classification does
not fail rational-basis review because it is not made with
mathematical nicety or because in practice it results in some
inequality. Id. at 321, 113 S.Ct. 2637 (quoting Dandridge
v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d
491 (1970)). But, even under this most deferential standard,
the State may not rely on a classification whose relationship
to the asserted goal is so attenuated as to render the decision
arbitrary or irrational. Cleburne, 473 U.S. at 446, 105
S.Ct. 3249. For this reason, courts insist on knowing the
relation between the classification adopted and the object to
be attained. Romer, 517 U.S. at 632, 116 S.Ct. 1620; see
also Heller, 509 U.S. at 321, 113 S.Ct. 2637 (explaining the
classification must find some footing in the realities of the
subject addressed by the legislation).
[20] Strict scrutiny lies at the other end of the spectrum.
This level of scrutiny applies when a legislative classification
impermissibly interferes with the exercise of a fundamental
right or operates to the peculiar disadvantage of a suspect
class. Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312,
96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Such classifications
are presumed unconstitutional and will survive strict scrutiny
only when the government can show the law is narrowly
tailored to a compelling governmental interest. See Zablocki,
434 U.S. at 388, 98 S.Ct. 673.
[21] [22] Between the extremes of rational basis review
and strict scrutiny lies a level of intermediate scrutiny, which
generally has been applied to discriminatory classifications
based on sex or illegitimacy. Clark v. Jeter, 486 U.S.
456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). These
classifications are considered quasi-suspect, and survive
heightened constitutional scrutiny only if the State shows
the classification is substantially related to an important
governmental objective. Miss. Univ. for Women v. Hogan,
458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090
(1982). Discrimination against a quasi-suspect class, such as
women, must be supported by an exceedingly persuasive
justification and not hypothesized or invented post hoc in
response to litigation. United States v. Virginia, 518 U.S.
515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). The
purpose of this heightened level of scrutiny is to ensure
quasi-suspect classifications do not perpetuate unfounded
stereotypes or second-class treatment. Id. at 534, 116 S.Ct.
2264.
*15 The Court's principal tasks here are to determine the
form of discrimination at issue and next identify and apply
the appropriate level of scrutiny.
1. Form of Discrimination
[23] Plaintiffs argue that Idaho's Marriage Laws
discriminate against individuals on the basis of sex and sexual
orientation. The Defendants counter that Idaho's Marriage
Laws do not prefer one sex over the other, nor do they target
gay and lesbian persons.
[24] A person's gender and sexual orientation are two
sides of the same coin. As one court aptly observed, sex
and sexual orientation are necessarily interrelated, as an
individual's choice of romantic or intimate partner based
on sex is a large part of what defines an individual's
sexual orientation. Perry v. Schwarzenegger, 704 F.Supp.2d
921, 996 (N.D.Cal.2010). However, the Supreme Court
has not equated sexual orientation discrimination and sex
discrimination despite several opportunities to do so. See
Romer, 517 U.S. at 635, 116 S.Ct. 1620 (We must conclude
that Amendment 2 classifies homosexuals not to further a
proper legislative end but to make them unequal to everyone
else.); Lawrence, 539 U.S. at 583, 123 S.Ct. 2472 (O'Connor,
J., concurring) ([T]he conduct targeted by this law is conduct
that is closely correlated with being homosexual.); Windsor,
133 S.Ct. at 2695 (The class to which DOMA directs its
restrictions and restraints are those persons who are joined in
same-sex marriages made lawful by the State.). Considering
the Supreme Court's treatment of this issue, this Court finds
that sex discrimination and sexual orientation discrimination
are distinct phenomena. In re Marriage Cases, 43 Cal.4th
757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 439 (2008); see
also Bishop v. U.S., 962 F.Supp.2d 1252 (N.D.Okla.2014)
(Common sense dictates that the intentional discrimination
occurring in this case has nothing to do with gender-based
prejudice or stereotypes, and the law cannot be subject to
heightened scrutiny on that basis.).
Idaho's Marriage Laws allow heterosexuals, but not
homosexuals, to marry and thus clearly discriminate on
the basis of sexual orientation. This distinction does not
prefer one gender over the othertwo men have no more
right to marry under Idaho law than two women. In other
words, Idaho's Marriage Laws are facially gender neutral and
there is no evidence that they were motivated by a gender
discriminatory purpose. See In re Kandu, 315 B.R. 123, 143
(Bankr.W.D.Wash.2004) (The test to evaluate whether a
facially gender-neutral statute discriminates on the basis of
sex is whether the law can be traced to a discriminatory
purpose.) (internal quotations omitted).
[25] Plaintiffs advance two reasons for applying heightened
scrutiny to Idaho's Marriage Laws. First, they argue sexual
orientation is subject to heightened scrutiny under recent
precedent of the United States Court of Appeals for the
Ninth Circuit. Second, they claim that classifications based
on sexual orientation are constitutionally suspect.
a. Ninth Circuit Precedent
*16 Plaintiffs first argue that heightened scrutiny applies
to sexual orientation discrimination by virtue of the Ninth
Circuit's recent decision in SmithKline Beecham Corp. v.
Abbott Laboratories, 740 F.3d 471, 484 (9th Cir.2014). The
Defendants claim SmithKline is distinguishable on its facts.
The State and Recorder Rich argue SmithKline is a case
about discriminatory jury selection and, as such, its holding
is limited to cases involving intentional sexual orientation
discrimination based on stereotypes. In a similar vein,
Governor Otter claims SmithKline is inapplicable because
Idaho's Marriage Laws are not motivated by animus toward
homosexuals. Defendants misread the case.
SmithKline involved a constitutional challenge to a
preemptory strike of a prospective juror during jury
selection for a trial between two pharmaceutical companies,
SmithKline Beecham and Abbott Laboratories. The parties'
dispute centered on the pricing of HIV medications, which
is a subject of considerable controversy in the gay
community. Id. at 474. During the jury selection process,
Juror B was the only self-identified gay member of the jury
pool. Immediately after Abbott exercised its first peremptory
strike against Juror B, SmithKline's counsel raised a Batson
challenge that the trial judge denied.
11
The Ninth Circuit
concluded that Abbott's challenge amounted to purposeful
sexual orientation discrimination before answering the
dispositive question: Whether classifications based on sexual
orientation are subject to heightened scrutiny.
To answer this question, the Ninth Circuit looked to the
Supreme Court's equal protection analysis in Windsor.
Although Windsor does not announce the level of scrutiny,
the SmithKline court considered what the Supreme Court
actually did and determined the Supreme Court's analysis
was inconsistent with pure rational basis review. Id. at 481.
SmithKline 's examination of Windsor is authoritative and
binding upon this Court.
According to SmithKline, Windsor's constitutional analysis
exhibits none of the hallmarks of rational basis review. First,
the Supreme Court ignored the hypothetical justifications
for the Defense of Marriage Act and instead carefully
considered the law's actual purpose. Id. at 48182 (citing
Windsor, 133 S.Ct. at 269394). Second, the critical part
of Windsor begins by demanding that Congress's purpose
justify disparate treatment of the group. Id. at 482
(quoting Windsor, 133 S.Ct. at 2693). Wholly inconsistent
with rational basis review, this demand neither defers to
legislative choices nor presumes a law is constitutional.
Compare Williamson v. Lee Optical, 348 U.S. 483, 487, 75
S.Ct. 461, 99 L.Ed. 563 (1955) ([I]t is for the legislature, not
the courts, to balance the advantages and disadvantages of the
new requirement.) with Windsor, 133 S.Ct. at 2696 (The
federal statute is invalid, for no legitimate purpose overcomes
the purpose and effect to disparage and injure those whom the
State, by its marriage laws, sought to protect in personhood
and dignity.). Concluding its analysis, the Ninth Circuit held
that Windsor requires that when state action discriminates
on the basis of sexual orientation, we must examine its actual
purposes and carefully consider the resulting inequality to
ensure that our most fundamental institutions neither send
nor reinforce messages of stigma or second-class status.
SmithKline, 740 F.3d at 483.
*17 This holding is unqualified and logically preceded the
court's analysis of the Batson challenge. Indeed, the Batson
analysis otherwise would have been foreclosed because the
Ninth Circuit's pre-Windsor equal protection precedent held
that sexual orientation discrimination is subject to rational
basis review. See High Tech Gays v. Def. Indus. Sec.
Clearance Office, 895 F.2d 563 (9th Cir.1990), abrogation
recognized by SmithKline, 740 F.3d at 483. Reexamining its
precedent in light of Windsor, the SmithKline court found that
earlier cases applying rational basis review to classifications
based on sexual orientation cannot be reconciled with
Windsor. 740 F.3d at 483. Only after the Ninth Circuit found
Juror B belonged to a group subject to heightened scrutiny did
it then proceed with its Batson analysis. In this Court's view,
SmithKline establishes a broadly applicable equal protection
principle that is not limited to the jury selection context.
Also, contrary to Defendants' contentions, SmithKline does
not limit the application of heightened scrutiny to instances
of proven animus or irrational stereotyping. SmithKline
addresses purposeful discrimination and the perpetuation of
impermissible stereotypes, but it does so in the context of
the Batson analysisnot in the discussion about Windsor.
Id. at 48486. With respect to Windsor, the court's holding
is undeniably broad: Windsor's heightened scrutiny applies
to classifications based on sexual orientation. Id. at 483.
Had the Ninth Circuit intended to limit its holding to cases
involving animus or irrational stereotyping, it easily could
have done so. Instead, it found Windsor to be dispositive of
the question of the appropriate level of scrutiny in this case,
a case that fits into the broader category of classifications
based on sexual orientation. Id. at 480. Just as the Ninth
Circuit was bound by [Windsor 's] controlling, higher
authority when deciding SmithKline, this Court is bound
to apply Windsor's heightened scrutiny to Idaho's Marriage
Laws.
12
b. Suspect class
[26] Apart from SmithKline, Plaintiffs also contend Idaho's
Marriage Laws are subject to heightened scrutiny because
classifications based on sexual orientation are constitutionally
suspect. The Court need not dissect this argument because the
Supreme Court has accepted it by implication. If homosexuals
are not a suspect or quasi-suspect class, the Supreme Court
would have applied rational basis scrutiny in Windsor. But,
as recognized in SmithKline, the Supreme Court applied
heightened scrutiny. Indeed, the Supreme Court affirmed the
Second Circuit without questioning (or even discussing) the
lower court's express holding:
A) homosexuals as a group have
historically endured persecution and
discrimination; B) homosexuality has
no relation to aptitude or ability to
contribute to society; C) homosexuals
are a discernible group with non-
obvious distinguishing characteristics,
especially in the subset of those who
enter same-sex marriages; and D) the
class remains a politically weakened
minority.
*18 Windsor v. United States, 699 F.3d 169, 18182 (2d
Cir.2012), aff'd United States v. Windsor, U.S. , 133
S.Ct. 2675, 186 L.Ed.2d 808 (2013). The Second Circuit's
holding was both approved and essential to the scrutiny the
Supreme Court applied in Windsor. Had the Supreme Court
disagreed with the Second Circuit, it would not have applied
heightened scrutiny. It is not necessary to repeat the Second
Circuit's analysis, for that analysis is implicit in both Windsor
and SmithKline.
D. Idaho's Marriage Laws Fail Constitutional Scrutiny
Because Idaho's Marriage Laws impermissibly infringe on
Plaintiffs' fundamental right to marry, the Laws are subject
to strict due process and equal protection scrutiny. But
SmithKline directs the Court to apply heightened equal
protection scrutiny to laws that discriminate on the basis of
sexual orientation. Idaho's Marriage Laws do not withstand
this heightened scrutiny.
[27] At a minimum, the Court must examine Idaho's
Marriage Laws and carefully consider the resulting
inequality to ensure that our most fundamental institutions
neither send nor reinforce messages of stigma or second-
class status. SmithKline, 740 F.3d at 483. Based on Windsor,
and as explained in SmithKline, four principles guide the
Court's equal protection analysis. The Court (1) looks to
the Defendants to justify Idaho's Marriage Laws, (2) must
consider the Laws' actual purposes, (3) need not accept
hypothetical, post hoc justifications for the Laws, and (4)
must decide whether the Defendants' proffered justifications
overcome the injury and indignity inflicted on Plaintiffs and
others like them. See id. at 48183.
[28] These principles most closely correspond to
the intermediate scrutiny test applied to quasi-suspect
classifications based on gender and illegitimacy. See Windsor
v. United States, 699 F.3d 169, 18588 (2d Cir.2012)
(applying intermediate scrutiny). In those cases the burden
of justification is demanding and it rests entirely on the State.
United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264,
135 L.Ed.2d 735 (1996). While intermediate scrutiny permits
classifications designed to remedy economic injuries or
promote equality, the test focuses on differential treatment
and denial of opportunity to ensure that discriminatory laws
do not create or perpetuate the legal, social, and economic
inferiority of the affected class. Id. at 53334, 116 S.Ct.
2264.
1. The Actual Purpose of Idaho's Marriage Laws
[29] The Court begins its inquiry into the actual purpose of
Idaho's Marriage Laws by examining their text. See Planned
Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 926
(9th Cir.2004). The plain meaning of legislation should
be conclusive, except in the rare cases in which the literal
application of a statute will produce a result demonstrably at
odds with the intention of its drafters. United States v. Ron
Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103
L.Ed.2d 290 (1989). The meaning of Idaho's Marriage Laws
could not be plainer.
*19 The only recognized domestic legal union in Idaho is a
marriage between a man and a woman. Idaho Const. Art.
III, 28. A marriage can be licensed and solemnized only
if it is a civil contract between a man and a woman....
Idaho Code 32201. All marriages contracted outside
of Idaho are valid in Idaho except marriages that violate
Idaho's public policy. Id. 32209. The statutory list of
marriages that violate Idaho's public policy is nonexclusive,
but it specifically identifies only two categoriessame-
sex marriages, and marriages entered into ... with the intent
to evade the prohibitions of Idaho's Marriage Laws. Id.
The parties do not cite, and the Court does not find, a
published Idaho case holding that anything other than same-
sex marriage violates the public policy set forth in Idaho
Code 32209. Each of these laws unambiguously expresses
a singular purposeto exclude same-sex couples from civil
marriage in Idaho.
The Laws' legislative history makes their exclusionary
purpose even clearer. Idaho Code Sections 32201 and 32
209 were both amended in the mid1990's, at a time when
no state recognized same-sex marriage. In 1993, however, the
Hawaii Supreme Court became the first court in the country
to strike down a statutory same-sex marriage ban. Baehr v.
Lewin, 74 Haw. 530, 852 P.2d 44, 61 (1993) (remanding for
consideration of justifications for the ban). After Baehr, over
half of the states passed laws prohibiting same-sex marriage.
See Bourke v. Beshear, F.Supp.2d , n. 1, 2014
WL 556729, at *1 n. 1 (W.D.Ken. Feb. 12, 2014) (listing
laws). In addition, the United States Congress reacted in
1996 by passing the Defense of Marriage Actthe law found
partially unconstitutional in Windsor. The present versions of
Sections 32201 and 32209 also took effect in 1996.
The Idaho Legislature amended 32201 in 1995 to add,
among other language, the words between a man and a
woman. 1995 Idaho Sess. Laws, ch. 104, 3. In addition
to this definitional change, the 1995 amendment abolished
common law marriage. Id. 35. Indeed, abolition of
common law marriage appears to be the amendment's primary
purpose, as its legislative history does not include a single
direct reference to the between a man and a woman
provision. The Compiler's Notes for the 1995 amendment do,
however, include the following:
It is the intent of this act to promote
the stability and best interests of
marriage and the family. Marriage is
the institution that is the foundation of
the family and of society. Its stability is
basic to morality and civilization and
of vital interest to society and the state.
Common-law marriages entered into
in this state on and after January 1,
1996, will no longer be recognized.
1995 Idaho Sess. Laws, ch. 104, 1. The stated intent and
apparent purpose of the amendment to Idaho Code 32201
was to promote family stability, morality, and a traditional
view of the marriage institution.
*20 Section 32201's manwoman marriage definition took
effect on January 1, 1996. A few months later, the Idaho
Legislature amended 32209 to include a public policy
against same-sex and evasive marriages. 1996 Idaho Sess.
Laws, Ch. 331, 1. From Idaho's territorial days until
the amendment's approval in 1996, Idaho law codified the
long-established place of celebration rule, whereby [a]ll
marriages contracted without this state, which would be valid
by the laws of the country in which the same were contracted,
are valid in this state. Idaho Code Ann. 32209 (1983); see
also Hilton v. Stewart, 15 Idaho 150, 96 P. 579, 583 (1908)
(This statute merely announces the general rule of law, as
we understand it, that any contract which is a valid marriage
according to the law of the place where the contract is made
is valid everywhere.).
But in 1996, the Legislature ended Idaho's tradition of
comity toward out-of-state marriages. At the time, Speaker
of the House Simpson voiced his concern that Hawaii might
recognize same-sex marriages and leave Idaho with no choice
but to reinforce its current policy or recognize same-sex
marriage by default. Relating to Recognition of Foreign
Marriages: Minutes for Feb. 15, 1996 Meeting on H.B.
658 Before the H. Judiciary, Rules, & Admin. Comm., 53d
Legis. Sess., 2d Reg. Sess. 2 (Idaho 1996). According to
Representative William Sali, there was no time to delay
or study the matter because Hawaii would dictate Idaho's
marriage policy if the Legislature did not act. Id. Despite
opposition from religious leaders, civil liberties advocates,
and both homosexual and heterosexual citizens, the bill easily
passed the House and Senate before arriving on Governor
Batt's desk.
With the Governor's signature, the law took immediate
effect on March 18, 1996. This swift transition from bill
to governing law was due to a legislative declaration of
emergency that accompanied the substantive changes to 32
209. 1996 Idaho Sess. Laws, Ch. 331, 2. The Legislature's
sense of urgency was vindicated when, later that year, a
Hawaii trial court rejected every proffered justification for
Hawaii's same-sex marriage ban and enjoined Hawaii from
denying marriage license applications solely because of the
applicants' sexual orientation. Baehr v. Miike, 1996 WL
694235 (Haw.Cir.Ct. Dec. 3, 1996), superseded by statute,
Haw.Rev.Stat. 5721 (1998). Thus, the purpose of the 1996
amendment to Idaho Code 32209 was to buttress Idaho's
traditional definition of marriage against changes in other
states' marriage laws.
By 2003, the highest courts in Vermont and Massachusetts
had ruled that their respective state constitutions precluded
the denial of marriage benefits on the basis of sexual
orientation. Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999);
Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798
N.E.2d 941 (2003). These developments again prompted
legislative reactions across the country. This time, however,
the Idaho Legislature sought to place on the ballot a proposed
amendment to the Idaho Constitution that would prevent an
Idaho court from reaching a result similar to those in Vermont
and Massachusetts. Efforts to do so in 2004 and 2005 failed to
garner the necessary two-thirds majority in the Idaho Senate.
But, in 2006, a third measure was introduced in the House,
debated, and this time passed both chambers. H.R.J. Res.
2, 58th Leg., 2d Reg. Sess. (Idaho 2006). The legislative
approval allowed the following question to appear on the
November 2006 general election ballot:
*21 Shall Article III, of the
Constitution of the State of Idaho be
amended by the addition of a new
Section 28, to provide that a marriage
between a man and a woman is the
only domestic legal union that shall be
valid or recognized in this state?
(Dkt. 578 at 2.)
The public debate over the proposal, which became known
as Amendment 2, centered on tradition, family, and equality.
See generally (Dkt. 574; Dkt. 577 at 616, 1820, 35; Dkt.
578 at 5, 42128.) Supporters of the amendment argued that
traditional marriage between a man and a woman formed
a foundation for stable and nurturing families. Both sides
debated the relative quality of opposite-sex versus same-sex
parenting. Those opposed to the amendment emphasized that
same-sex couples could be just as loving and committed to
each other and their children as opposite-sex couples. Some
framed the debate in explicitly religious terms, but faith
leaders spoke out on both sides. Others characterized the
matter as a secular issue, often citing the need for equality
among citizens.
On November 7, 2006, Idaho's electorate took to the ballot
box, and 63.3% voted in favor of Amendment 2. (Dkt. 57
8 at 8.) The amendment immunized Idaho's man-woman
marriage definition from attack in the State's courts or
legislative bodies. As a result, nothing short of a successful
federal constitutional challenge or a superseding amendment
to Idaho's Constitution would be sufficient to change Idaho's
Marriage Laws.
Because over 280,000 Idahoans voted for Amendment 2, it is
not feasible for the Court to infer a particular purpose or intent
for the provision. But, as Plaintiffs argue, it is obvious that
Idaho's Marriage Laws purposefully discriminate on the basis
of sexual orientation. Suggesting that the laws' discriminatory
effects are merely incidental, Defendants characterize them
as efforts to preserve Idaho's traditional civil marriage
institution. But preserving the traditional institution of
marriage is just a kinder way of describing the State's moral
disapproval of same-sex couples. Lawrence, 539 U.S. at
601, 123 S.Ct. 2472 (Scalia, J., dissenting). Although the
Court finds Idaho's Marriage Laws were motivated, in part, by
important governmental interests, their history demonstrates
that moral disapproval of homosexuality was an underlying,
animating factor. As with DOMA, the practical effect
of Idaho's Marriage Laws is to impose a disadvantage, a
separate status, and so a stigma on a class of people based
solely on their sexual orientation. Windsor, 133 S.Ct. at
2693. The question now is whether any of the Defendants'
asserted justifications overcome the inequality imposed upon
Plaintiffs and others like them.
2. Asserted Justifications for Idaho's Marriage Laws
All Defendants assert that Idaho's Marriage Laws relate to
the State's interest in maximizing child welfare but differ on
how the meansdenying marital status to same-sex couples
serve this child-welfare end. Governor Otter primarily
contends the definition fosters a traditional, child-centric
marriage culture and otherwise promotes optimal family
structures. The State and Recorder Rich claim the definition
allows Idaho to channel its limited fiscal resources toward
naturally procreative relationships.
*22 Aside from child welfare, the Governor and amicus
curiae Cornerstone Family Council of Idaho assert Idaho's
Marriage Laws serve additional, important interests. They
maintain that the Laws further the State's interest in
federalism. Governor Otter also claims Idaho's Marriage
Laws serve the State's interests in accommodating religious
freedom, avoiding civic strife, and affirming democratic
consensus. The Court addresses each asserted justification
below.
a. Child Welfare
[30] Governor Otter contends that Idaho's Marriage Laws
advance the State's interest in protecting children. Children
are indeed both vulnerable and essential to the perpetuation
of society. And, although the Court agrees that the State
has a compelling interest in maximizing child welfare, the
link between the interest in protecting children and Idaho's
Marriage Laws is so attenuated that it is not rational, let alone
exceedingly persuasive.
[31] Governor Otter observes that man-woman marriage
is an ancient and traditional child-centered institution, one
focused first and foremost on the welfare of children rather
than the emotional interests of adults.
13
(Dkt. 572 at 10.)
The Governor emphasizes this conjugal view of marriage
encourages parents to routinely sacrifice their own interests
to the legitimate needs and interests of their children. (Id.)
And, the Governor asserts, Idaho's Marriage Laws reinforce
this traditional, child-centric norm by offering marital status
only to couples with the natural capacity to procreate.
The Governor claims that recognizing same-sex marriages
would radically redefine the institution by imposing a
consent-based marriage regime. Without the normative
guidance of traditional marriage, the Governor fears
that the social institution of marriage will erode. This
deinstitutionalization of marriage could cause parents to turn
away from the self-sacrifice that, the Governor asserts, is a
hallmark of Idaho's traditional, child-centric regime.
The Governor also claims that Idaho's Marriage Laws further
the State's interest in child-welfare by promoting optimal
family structures. Citing to volumes of sociological studies,
the Governor advances the general proposition that two
parents in a low-conflict marriage constitute the optimal
child-rearing environment. See generally (Dkt. 578 at 103
128; 579 through 5711 at 150.) Plaintiffs do not dispute this
general conclusion. (Lamb Dec., Dkt. 47 1720.) But the
Governor further argues that children uniquely benefit from
parental gender complementaritythat is, parenting by
parents of the opposite sex. (Dkt. 90 at 3.) Plaintiffs counter
by emphasizing the broad consensus among sociological
experts that gender of the two parents makes no difference
for a child's well-being. (Lamb Dec., Dkt. 47 3236.)
Thus, the parties fundamentally disagree on whether same-
sex parenting negatively affects a child's well-being.
14
The best that can be said for Defendants' position is that some
social scientists quibble with the prevailing consensus that the
children of same-sex parents, on average, fare no better or
worse than the children of opposite-sex parents. (Id. 35
41.) But the Court need noteven if it could at the summary
judgment stageresolve this sociological debate. The parties'
debate over the scientific literature distracts from the essential
inquiry into the logical link between child welfare and Idaho's
wholesale prohibition of same-sex marriage. That link is
faulty for at least four reasons.
*23 First, civil marriage in Idaho is and has long been
a designedly consent-based institution. The law speaks of
marriage as a civil contract ... to which the consent of parties
capable of making it is necessary. Idaho Code 32201.
True, throughout human history and across many cultures,
marriage has been viewed as an exclusively opposite-sex
institution and as one inextricably linked to procreation and
biological kinship. Windsor, 133 S.Ct. at 2718 (Alito, J.,
dissenting). But Idaho law is wholly indifferent to whether a
heterosexual couple wants to marry because they share this
vision or simply seek a tax break. That such a crass objective
would be sufficient to obtain a marriage license does not mean
marriage is a cheap convenience. Instead, it means that the
value of marriage derives from a place beyond the law's reach.
Important as the child-centered vision of marriage is, Idaho's
consent-based marriage regime does not require heterosexual
couples to accept or follow this norm. Whatever the beliefs
or intentions of the parties, there is nothing conjugal or child-
centric about the formality of obtaining a marriage license.
The Governor offers only conjecture to support his critical
pointthat allowing Plaintiffs or people like them to marry
risks vitiating the child-centered norm. There is no evidence
that allowing same-sex marriages will have any effect on
when, how, or why opposite-sex couples choose to marry.
Second, Idaho does not condition marriage licenses or marital
benefits on heterosexual couples' ability or desire to have
children. No heterosexual couple would be denied the right
to marry for failure to demonstrate the intent to procreate.
Indeed, as the State and Recorder Rich observe, [a]ttempting
to restrict civil marriage to couples who intend to have
children would demand governmental inquiry into sensitive
matters of personal privacy and raise insuperable, or at
a minimum very significant, privacy-based constitutional
concerns. (Dkt. 73 at 17.) To claim that civil marriage
is somehow tied to a governmental interest in procreation
is to threaten the legitimacy of marriages involving post-
menopausal women, infertile individuals, and individuals
who choose to refrain from procreating. Bostic v. Rainey,
970 F.Supp.2d 456, 47879 (E.D.Va.2014).
[32] Third, Idaho does not withhold marriage licenses from
heterosexual couples who might be, or are, non-optimal
parents. Under Idaho law, everyone from multiple divorcees,
dead-beat dads, see Zablocki, 434 U.S. 374, 98 S.Ct. 673,
to prison inmates, see Turner v. Safley, 482 U.S. 78, 107
S.Ct. 2254, 96 L.Ed.2d 64 (1987), may marry, as long as they
marry someone of the opposite sex. Yet Plaintiffssix of
whom have children or step-childrenare deemed unworthy
of marital benefits because they might be less fit parents
according to an inconclusive body of scientific literature. To
the extent this amounts to a presumption of parental unfitness,
it bears emphasis that a similar presumption was found
unconstitutional over 40 years ago. Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (holding due
process entitles unwed fathers to a hearing before they could
be deemed unfit parents). Constitutionality aside, sexual
orientation [is] wholly irrelevant to whether a person can
adopt children in Idaho. In re Adoption of Doe, Idaho
, P.3d , , 2014 WL 527144, at *6 (Idaho
February 10, 2014). In a state where the privilege of becoming
a child's adoptive parent does not hinge on a person's sexual
orientation, it is impossible to fathom how hypothetical
concerns about the same person's parental fitness possibly
could relate to civil marriage.
*24 Finally, and most importantly, the Governor's child
welfare rationales disregard the welfare of children with
same-sex parents. It is undisputed that poverty and social
isolation [are] associated with maladjustment [in children],
and adequate resources support[ ] healthy adjustment. (Lamb
Dec., Dkt. 47 18.c.) It is also clear that [m]arriage can yield
important benefits for children and families, including state
and federal legal protections, economic resources, family
stability, and social legitimacy. These benefits are equally
advantageous for children and adolescents in families headed
by same-sex and different-sex couples. (Id. 48.) Although
the State and Recorder Rich dismiss same-sex households as
statistically insignificant, (Dkt. 73 at 12 n. 3), no Defendant
suggests that the State's child welfare interest does not extend
to the children in these households.
In this most glaring regard, Idaho's Marriage Laws fail to
advance the State's interest because they withhold legal,
financial, and social benefits from the very group they
purportedly protectchildren. As Justice Kennedy observed,
a law that withdraws these benefits humiliates ... children
now being raised by same-sex couples. The law in question
makes it even more difficult for the children to understand the
integrity and closeness of their own family and its concord
with other families in their community and in their daily
lives. Windsor, 133 S.Ct. at 2694. Failing to shield Idaho's
children in any rational way, Idaho's Marriage Laws fall on
the sword they wield against same-sex couples and their
families.
b. Focusing Governmental Resources on
Couples with Biological Procreative Capacity
[33] The State and Recorder Rich articulate a somewhat
different link between child welfare and Idaho's prohibition of
same-sex marriage. They propose that Idaho's interest in child
welfare is served by directing the State's limited resources
to opposite-sex couples. The State is justified in reserving
marital benefits for these couples, the argument continues,
because only they have the natural ability to procreate.
Pointing to the public costs of divorce, single parenting, and
tax breaks for married couples, Recorder Rich and the State
argue that the State can avoid some of these costs by not
allowing same-sex couples to marry.
Even in rational basis cases, the Supreme Court has rejected
the argument that cost-cutting is a sufficient reason for
denying benefits to a discrete group. Plyler v. Doe, 457 U.S.
202, 229, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (invalidating
a Texas statute that denied free public education to children
of undocumented immigrants). When Arizona threatened to
deny health care benefits to the same-sex domestic partners
of state employees, the Ninth Circuit affirmed the district
court's rejection of the Arizona's cost-saving rationale. Diaz
v. Brewer, 656 F.3d 1008, 1013 (9th Cir.2011). In both cases,
the chief constitutional problem was that the states' attempts
to cut costs fell on an arbitrarily selected group.
*25 Because heightened scrutiny applies here, the Court
must focus on the Laws' actual purposes. The Court finds
that defending the State's fiscal resources is not an actual
purpose of any law challenged in this case. Aside from the
cost of putting Amendment 2 on the ballot, (Dkt. 577 at
3), the record indicates that the only public costs referenced
during the debate over the measure were the cost of defending
it in litigation, (Dkt. 578 at 5), and the cost of driving
businesses away from Idaho with a State-approved message
of intolerance. (Id. at 74.)
Even assuming cost-cutting was an actual purpose for Idaho's
Marriage Laws, the State and Rich do not explain how
avoiding the public cost of same-sex marriages improves
child welfare. The Laws do not create new benefits
for naturally procreative couples; instead, they arbitrarily
withhold benefits from a statistically insignificant class
of households with children. (Dkt. 73 at 12 n. 3.) There
is no showing that forbidding same-sex marriages makes
naturally procreative couples more likely to marry, let alone
stay married. Nor is there any evidence that the State has any
compunction about expending its limited resources on non-
procreative or unstable heterosexual marriages.
Defendants' only explanation is that a law does not offend
the Constitution simply because the classification is not made
with mathematical nicety or because in practice it results in
some inequality. Dandridge v. Williams, 397 U.S. 471, 485,
90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (internal quotation
omitted). While this may be the case when a court reviews
economic legislation under the rational basis standard, e.g.,
U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174, 101
S.Ct. 453, 66 L.Ed.2d 368 (1980), more precision is necessary
where, as here, the law discriminates on the basis of sexual
orientation. See SmithKline, 740 F.3d at 48182. If Idaho's
Marriage Laws seek to improve child welfare by focusing
limited public resources on heterosexual marriages, they do
so in a patently arbitrary manner. They are at once grossly
overinclusiveby expending the State's limited resources
on unstable marriages and married couples with no intent
or ability to procreateand dramatically underinclusiveby
denying those resources to children whose parents happen
to be homosexual. The burden of this imprecision falls
on families that seek the same stability that Idaho claims
to incentivize. This is not fiscal prudence; it is a State-
endorsed message of unworthiness that does not withstand
constitutional scrutiny.
c. Federalism
[34] [35] Governor Otter and amicus curiae Cornerstone
Family Council of Idaho claim that federalism principles
require the Court to uphold the State's traditional authority
to define marriage. Defendants also make two more specific
state's rights arguments. In particular, Governor Otter claims
that Idaho's policy against recognizing out-of-state same-
sex marriages must be accepted under the well-established
public policy exception to the Full Faith and Credit Clause.
See Nevada v. Hall, 440 U.S. 410, 422, 99 S.Ct. 1182, 59
L.Ed.2d 416 (1979). Defendants also claim that Section 2 of
the federal Defense of Marriage Act, codified at 28 U.S.C.
1738C, authorizes Idaho to refuse recognition of same-sex
marriages. All of these arguments fail to consider that neither
Congress nor a State can validate a law that denies the rights
guaranteed by the Fourteenth Amendment. Saenz v. Roe, 526
U.S. 489, 508, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999).
*26 It is true federalism favors preserving a state's right
to choose policies uniquely suited to the preferences of its
citizens. By creating a system with both state and federal
governments, the Framers [of the Constitution] thus ensured
that powers which in the ordinary course of affairs, concern
the lives, liberties, and properties of the people were held by
governments more local and more accountable than a distant
bureaucracy. Nat'l Fed'n of Indep. Bus. v. Sebelius,
U.S. , 132 S.Ct. 2566, 2578, 183 L.Ed.2d 450 (2012)
(quoting The Federalist No. 45, at 293 (J. Madison)). Thus,
a single courageous state may, if its citizens choose, serve as
a laboratory; and try novel social and economic experiments
without risk to the rest of the country. New State Ice Co.
v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed.
747 (1932) (Brandeis, J., dissenting). Windsor upheld this
principle by invalidating the federal man-woman marriage
definition, in part, because of its unusual deviation from
the federal government's usual deference to state domestic
relations laws. 133 S.Ct. at 2693.
[36] [37] However, States are not the sole intended
beneficiaries of federalism. Bond v. United States,
U.S. , 131 S.Ct. 2355, 2364, 180 L.Ed.2d 269 (2011).
Federalism has another dimension, one that secures to
citizens the liberties that derive from the diffusion of
sovereign power. Coleman v. Thompson, 501 U.S. 722,
759, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (Blackmun, J.,
dissenting).
Federalism also protects the liberty
of all persons within a State by
ensuring that laws enacted in excess of
delegated governmental power cannot
direct or control their actions. By
denying any one government complete
jurisdiction over all the concerns of
public life, federalism protects the
liberty of the individual from arbitrary
power. When government acts in
excess of its lawful powers, that liberty
is at stake.
Bond, 131 S.Ct. at 2364 (citation omitted). Federalism is not
just a bulwark against federal government overreach; it is also
an essential check on state power.
For that reason, federalism is no answer where, as here,
individuals claim their state government has trampled their
constitutional rights. Indeed, Windsor also recognizes the
transcendent quality of individual constitutional rights, even
when those rights conflict with a state's traditional sovereign
authority. State laws defining and regulating marriage, of
course, must respect the constitutional rights of persons,
see, e.g., Loving.... Windsor, 133 S.Ct. at 2691 (emphasis
added). As other courts have recognized, Windsor's citation
to Loving for this proposition is a disclaimer of enormous
proportions. Bishop v. U.S., 962 F.Supp.2d 1252, 1279
(N.D.Okla.2014). In Loving, Virginia's sovereign authority
over marital relations could not save the State's anti-
miscegenation laws. And, just as in Loving, Idaho's right to
regulate domestic relations is subject to the paramount rights
of its citizens. That is the way of our federal system.
d. Accommodating Religious Freedom, Avoiding
Civic Strife, and Assuring Social Consensus
*27 [38] Finally, Governor Otter argues that Idaho's
Marriage Laws should be upheld because they serve the
related goals of supporting religious liberty, avoiding the
potential for religion-centered conflicts, and affirming a
prevailing social consensus on marriage. Analogizing to the
Supreme Court's days-old decision in Schuette v. BAMN,
U.S. , 134 S.Ct. 1623, L.Ed.2d (2014), the
Governor argues that a state's voters can ban preferences
and that courts should let[ ] the people make difficult policy
choices through democratic means. (Dkt. 93 at 2.) Yet the
Governor acknowledges, as he must, this is not to say
the State can invoke concerns about religious freedom or
religion-related social strife as a basis for denying rights
otherwise guaranteed by the Constitution. (Dkt. 572 at 53.)
The Governor's argument concerning religious liberty is
myopic. No doubt many faiths around the world and in Idaho
have longstanding traditions of man-woman marriage rooted
in scripture. But not all religions share the view that opposite-
sex marriage is a theological imperative. In fact, some of
the Plaintiffs actively worship in faiths that recognize and
support their unions. (S. Watsen Dec. 13, Dkt. 51.) To
the extent Governor Otter argues that Idaho has a legitimate
interest in validating a particular religious view of marriage,
that argument blithely disregards the religious liberty of
congregations active in Idaho. By recognizing the right to
marry a partner of the same sex, the State allows these
groups the freedom to practice their religious beliefs without
mandating that other groups must adopt similar practices.
Kitchen v. Herbert, 961 F.Supp.2d 1181, 1214 (D.Utah 2013).
[39] Likewise, a desire to protect or maintain a particular
social consensus does not withstand constitutional scrutiny.
A citizen's constitutional rights can hardly be infringed
simply because a majority of the people choose that it be.
Lucas v. FortyFourth Gen. Assembly of Colo., 377 U.S.
713, 73637, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). The
Supreme Court's decision in Schuette says nothing to the
contrary. Unlike this case, Schuette involved the Michigan
electorate's vote to stop the racially discriminatory, albeit
arguably beneficial, practice of affirmative action. 134 S.Ct.
at 1630 (The question here concerns not the permissibility
of race-conscious admissions policies under the Constitution
but whether, and in what manner, voters in the States may
choose to prohibit the consideration of racial preferences in
governmental decisions, in particular with respect to school
admissions.). Far from establishing a state's right to violate
the Fourteenth Amendment by majority vote, Schuette stands
for the unremarkable proposition that voters can and should
be allowed to end their state's discriminatory policies. That
principle has no application in a case, like this one, where
voters imposed a purposefully discriminatory policy that
undermines a fundamental right.
Rather, the dispositive principle in this case is that
fundamental rights may not be submitted to vote; they
depend on the outcome of no elections. W. Va. Bd. of Educ.
v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628
(1943). The Supreme Court has endorsed this principle again
and again. As Justice Robert Jackson so eloquently put it:
*28 The framers of the Constitution
knew, and we should not forget
today, that there is no more effective
practical guaranty against arbitrary
and unreasonable government than
to require that the principles of law
which officials would impose upon a
minority must be imposed generally.
Conversely, nothing opens the door
to arbitrary action so effectively as
to allow those officials to pick and
choose only a few to whom they will
apply legislation and thus to escape
the political retribution that might be
visited upon them if larger numbers
were affected. Courts can take no
better measure to assure that laws will
be just than to require that laws be
equal in operation.
Railway Express Agency v. New York, 336 U.S. 106, 112113,
69 S.Ct. 463, 93 L.Ed. 533 (1949) (Jackson, J., concurring).
This principle resonates today, as 10 federal courts across the
country have in recent months reached similar conclusions
on the very issues present in this case.
15
Considering many
of the same arguments and much of the same law, each of
these courts concluded that state laws prohibiting or refusing
to recognize same-sex marriage fail to rationally advance
legitimate state interests. This judicial consensus was forged
from each court's independent analysis of Supreme Court
cases extending from Loving through Romer, Lawrence, and
Windsor. The logic of these precedents virtually compels the
conclusion that same-sex and opposite-sex couples deserve
equal dignity when they seek the benefits and responsibilities
of civil marriage. Because Idaho's Marriage Laws do not
withstand any applicable form of constitutional scrutiny, the
Court finds they violate the Fourteenth Amendment to the
United States Constitution.
V. CONCLUSION
The Plaintiffs are entitled to extraordinary remedies because
of their extraordinary injuries. Idaho's Marriage Laws
withhold from them a profound and personal choice, one that
most can take for granted. By doing so, Idaho's Marriage
Laws deny same-sex couples the economic, practical,
emotional, and spiritual benefits of marriage, relegating each
couple to a stigmatized, second-class status. Plaintiffs suffer
these injuries not because they are unqualified to marry, start
a family, or grow old together, but because of who they are
and whom they love.
The Defendants offered no evidence that same-sex marriage
would adversely affect opposite-sex marriages or the
well-being of children. Without proof, the Defendants'
justifications echo the unsubstantiated fears that could not
prop up the anti-miscegenation laws and rigid gender roles of
days long past. Then as now, it is the duty of the courts to
apply the law to the facts in evidence. Here, the facts are clear
and the law teaches that marriage is a fundamental right of all
citizens, which neither tradition nor the majority can deny.
The Fourteenth Amendment guarantees of due process and
equal protection lie at the core of our constitutional system.
While the Supreme Court has not expressly decided the issues
of this case, it has over the decades marked the path that
leads to today's decision. [T]he history of our Constitution ...
is the story of the extension of constitutional rights and
protections to people once ignored or excluded. United
States v. Virginia, 518 U.S. 515, 557, 116 S.Ct. 2264, 135
L.Ed.2d 735 (1996). Slow as the march toward equality may
seem, it is never in vain.
ORDER
*29 The Court GRANTS Plaintiffs' Motion for Summary
Judgment (Dkt. 45). Defendant Governor Otter's Motion for
Summary Judgment (Dkt. 57) and Defendant Recorder Rich
and DefendantIntervenor Idaho's Motions to Dismiss (Dkt.
30, 41, 43) are DENIED.
The Court hereby DECLARES that Idaho's Marriage Laws
are unconstitutional because they violate Plaintiffs' rights
under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment to the United States Constitution.
The Court PERMANENTLY ENJOINS the State of Idaho
and its officers, employees, agents, and political subdivisions
from enforcing Article III, 28 of the Idaho Constitution;
Idaho Code Sections 32201 and 32209; and any other laws
or regulations to the extent they do not recognize same-
sex marriages validly contracted outside Idaho or prohibit
otherwise qualified same-sex couples from marrying in
Idaho. This injunction shall take effect at 9:00 a.m. MDT on
May 16, 2014.
IT IS SO ORDERED.
Footnotes
1
Bowers v. Hardwick, 478 U.S. 186, 211, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Blackmun, J., dissenting), overruled by Lawrence
v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).
2
Six states have legalized same-sex marriage through court decisions (California, Connecticut, Iowa, Massachusetts, New Jersey, and
New Mexico); eight have done so through legislation (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode
Island, and Vermont); and three have legalized same-sex marriage by popular vote (Maine, Maryland, and Washington). See Kitchen
v. Herbert, 961 F.Supp.2d 1181, 1192 n. 4 (D.Utah 2013). The District of Columbia also legalized same-sex marriage through
legislation. Id.
3
The Idaho Code is replete with provisions referencing husband and wife or the traditional, opposite-sex definition of marriage. See,
e.g., id. 32202 (referring to the male and the female parties to a marriage contract); 32304 (requiring couple to declare they
take each other as husband and wife); 32901 to 929 (relating to Husband and WifeSeparate and Community Property). The
Court need not survey these scattered provisions because, as discussed in Part II.D below, Plaintiffs' requested relief is broad enough
to cover any source of Idaho law that would prohibit or refuse to recognize same-sex marriages, wherever contracted.
4
After the dismissal of Lori Watsen's adoption petition, the Idaho Supreme Court held Idaho's adoption statutes plainly allow a
woman to adopt her same-sex partner's children. In re Adoption of Doe, Idaho , P.3d , , 2014 WL 527144, at
*6 (Idaho Feb. 10, 2014). The court made clear it would not imply ... restrictions based on Idaho's marital statutes and that sexual
orientation was wholly irrelevant to our analysis. Id.
5
There is no dispute that Plaintiffs have standing to bring this lawsuit or, considering the relief requested, that Defendants are proper
parties.
6
The undersigned United States Magistrate Judge has jurisdiction over this matter by virtue of all parties' express written consent.
28 U.S.C. 636(c); see also D. Idaho Loc. Civ. R. 72.1(a)(1) (authorization to decide civil cases with the parties' consent), (Dkt.
40) (consents).
7
Recorder Rich first moved to dismiss this case on January 9, 2014. (Dkt. 30.) After the Court permitted the State to intervene, the
State filed a motion to dismiss that adopted all arguments made in Recorder Rich's initial motion. (Dkt. 41.) Plaintiffs thereafter filed
an Amended Complaint, (Dkt. 42), which Recorder Rich and the State jointly moved to dismiss based on the reasons stated in their
earlier motions to dismiss. (Dkt. 43.)
8
November 22, 1971less than a year before the summary decision in Bakerwas the first time the Supreme Court struck down
a law because it unconstitutionally discriminated on the basis of gender. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225
(1971). Overruling the Idaho Supreme Court, Reed held that Idaho's statutory preference for male estate administrators was the very
kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.... Id. at 76, 92 S.Ct. 251.
9
No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any
other method, change his or her sexual orientation. Perry v. Schwarzenegger, 704 F.Supp.2d 921, 966 (N.D.Cal.2010); see also
HernandezMontiel v. INS, 225 F.3d 1084, 1093 (9th Cir.2000) (reviewing literature on the essential link between sexual and personal
identity).
10
For this reason, Idaho's Marriage Laws are subject to strict due process and equal protection scrutiny. See Zablocki, 434 U.S. at 388,
98 S.Ct. 673. But the Laws do not survive under the lower level of equal protection scrutiny applied in Part IV.D below. Consequently,
the Laws would fail strict scrutiny.
11
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court found that the Equal Protection Clause
limits the privilege of exercising peremptory strikes when selecting a jury. Although Batson considered strikes based on race, its
underlying constitutional principle now extends to classes of persons subject to intermediate or strict equal protection scrutiny. J.E.B.
v. Alabama, 511 U.S. 127, 143, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (Parties may ... exercise their peremptory challenges to
remove from the venire any group or class of individuals normally subject to rational basis' review.).
12
Currently, Nevada's laws prohibiting same-sex marriage are before the Ninth Circuit and Oregon's are before the District of Oregon.
The Attorneys General of Nevada and Oregon both recently concluded that heightened scrutiny under SmithKline eviscerates the
legal bases for their defenses. (Dkt. 772 at 5; Dkt. 773 at 22.) Consequently, both Attorneys General have refused to defend their
state's marriage laws.
13
The Governor does not argue that Idaho's Marriage Laws advance traditional marriage for tradition's sake alone. But it bears repeating
that the [a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis. Heller v. Doe, 509
U.S. 312, 326, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Moreover, the fact that the governing majority in a State has traditionally
viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor
tradition could save a law prohibiting miscegenation from constitutional attack. Lawrence v. Texas, 539 U.S. 558, 57778, 123 S.Ct.
2472, 156 L.Ed.2d 508 (2003) (quoting Bowers v. Hardwick, 478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Stevens,
J., dissenting)).
14
Two federal district courts have held bench trials that focused on this question. Perry v. Schwarzenegger, 704 F.Supp.2d 921 (2010);
DeBoer v. Snyder, 973 F.Supp.2d 757 (E.D.Mich.2014). Both found that the overwhelming scientific consensus favors the no
differences view.
15
Kitchen v. Herbert, 961 F.Supp.2d 1181, (D.Utah 2013); Bishop v. U.S., 962 F.Supp.2d 1252 (N.D.Okla.2014); Bourke v. Beshear,
F.Supp.2d , 2014 WL 556729 (W.D.Ky. Feb. 12, 2014); Bostic v. Rainey, 970 F.Supp.2d 456 (E.D.Va.2014); Lee v. Orr,
F.Supp.2d , 2014 WL 683680 (N.D.Ill. Feb. 21, 2014); De Leon v. Perry, 975 F.Supp.2d 632 (W.D.Tex.2014); Tanco v.
Haslam, F.Supp.2d , 2014 WL 997525 (M.D.Tenn. Mar. 14, 2014); DeBoer v. Snyder, 973 F.Supp.2d 757 (E.D.Mich.2014);
Henry v. Himes, F.Supp.2d , 2014 WL 1418395 (S.D.Ohio Apr. 14, 2014); Baskin v. Bogan, F.Supp.2d , 2014 WL
1568884 (S.D.Ind. Apr. 18, 2014).
Lee v. Orr, Not Reported in F.Supp.2d (2014)
2014 WL 683680
N.D. Illinois, Eastern Division.
Brenda Lee and Lee Edwards; Patricia
Tucker and Ingrid Swenson; Elvie Jordan
and Challis Gibbs; Ronald Dorfman and
Kenneth Ilio, on behalf of themselves and
all others similarly situated, Plaintiffs,
v.
David Orr, in his official capacity
as Cook County Clerk, Defendant.
Case No. 13cv8719 | Filed February 21, 2014
Camilla Bronwen Taylor, Christopher R. Clark, Lambda
Legal Defense & Education Fund, Inc., Harvey Michael
Grossman, John A. Knight, Karen A. Sheley, Roger Baldwin
Foundation of ACLU, Inc., Jeremy Mark Press, Jordan
Mitchell Heinz, Kirkland & Ellis LLP, Kay L. Dawson, M.
David Weisman, Marc Oliver Beem, Zachary J. Freeman,
Miller Shakman & Beem LLP, Chicago, IL, for Plaintiffs.
Kent Stephen Ray, Paul Leo Fangman, Sisavanh Baccam
Baker, Chicago, IL, for Defendant.
Opinion
Sharon Johnson Coleman, United States District Judge
*1 On December 24, 2013, plaintiffs filed a motion
for summary judgment [36] asserting that the Illinois ban
on same-sex marriage frustrates the individual and class
plaintiffs' desire to marry in their home state by denying
them equal protection under the law and infringing on their
fundamental right to marry. Defendants, David Orr and the
intervenor, Illinois Attorney General Lisa Madigan, do not
oppose entry of summary judgment in this matter. For the
reasons stated herein, this Court grants the motion.
Background
The Illinois Marriage and Dissolution of Marriage Act
authorizes marriage only between a man and a woman. 750
ILCS 5/201. The statute also states that marriage between
same-sex individuals is contrary to the public policy of
this State. 750 ILCS 5/213.1. On November 5, 2013, the
Illinois General Assembly passed Senate Bill 10 (SB10)
amending the Illinois marriage statute to allow same-sex
couples to marry. However, SB10 did not immediately go
into effect because the Illinois Constitution, article IV, 10,
stipulates that [a] bill passed after May 31 shall not become
effective prior to June 1 of the next calendar year unless the
General Assembly by the vote of three-fifths of the members
elected to each house provides for an earlier effective date.
The General Assembly did not vote in favor of an earlier
effective date and therefore the plaintiffs initially asked this
Court to intervene on behalf of a class of gay and lesbian
couples where one or both partners were terminally ill and
thus would be permanently denied the right to marry. The
Court granted that motion on December 10, 2013.
Now, plaintiffs come before the Court on behalf of all gay
and lesbian couples in Cook County asking this Court to
find the Marriage Act that remains in effect until June 1,
2014, unconstitutional on its face as an infringement of the
fundamental right to marry.
Legal Standard
Summary judgment is appropriate when the record shows that
there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Disputes
concerning material facts are genuine where the evidence is
such that a reasonable jury could return a verdict for the non-
moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding
whether to grant summary judgment, the court construes all
facts in a light most favorable to the non-moving party and
draws all reasonable inferences in favor of the non-moving
party. See id. at 255.
Discussion
There is no dispute here that the ban on same-sex marriage
violates the Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution and infringes
on the plaintiffs' fundamental right to marry. Indeed, the
defendant and intervenor have joined in plaintiffs' motion,
with the caveat the defendant David Orr is bound to follow
the law in Illinois. Since the parties agree that marriage is a
fundamental right available to all individuals and should not
Lee v. Orr, Not Reported in F.Supp.2d (2014)
be denied, the focus in this case shifts from the we can't wait
for terminally ill individuals to why should we wait for all
gay and lesbian couples that want to marry. To paraphrase Dr.
Martin Luther King, Jr.: the time is always ripe to do right.
MARTIN LUTHER KING JR., WHY WE CAN'T WAIT 74
(1964).
*2 This Court has no trepidation that marriage is a
fundamental right to be equally enjoyed by all individuals
of consenting age regardless of their race, religion, or sexual
orientation, and the public policy of this State has been
duly amended to reflect that position. The plaintiffs are
asking this Court to strike down a state statute, although
they have brought suit solely against the Cook County
Clerk. The cases that plaintiffs rely on in support of their
motion were in a significantly different posture. In all of
those cases, the plaintiffs sought to have state statutes and
constitutional provisions or proposed amendments banning
same sex marriage found unconstitutional either as applied to
individual couples or to the state as a whole, and they faced
significant opposition to their efforts. Here, the complaint
affects only one county and there is no opposition. In fact,
the Cook County Clerk filed a brief in support of plaintiffs'
claims. Intervenor Lisa Madigan, Illinois Attorney General,
provides additional support for plaintiffs' position in a brief
filed on behalf of the State of Illinois.
1
Although this Court
finds that the marriage ban for same-sex couples violates the
Fourteenth Amendment's Equal Protection Clause on its face,
this finding can only apply to Cook County based upon the
posture of the lawsuit.
There is no reason to delay further when no opposition
has been presented to this Court and committed gay and
lesbian couples have already suffered from the denial of
their fundamental right to marry. Accordingly, the provisions
of the Illinois Marriage and Dissolution of Marriage Act,
750 ILCS 5/201 (authorizing marriages between a man
and a woman), 750 ILCS 5/212(a)(5) (prohibiting marriage
between 2 individuals of the same sex), and 750 ILCS
5/213.1 (stating that same-sex marriages are contrary to
the public policy of the state), violate the Equal Protection
Clause by discriminating against individuals based on their
sexual orientation.
No genuine issue of material fact exists for a trier-of-fact
to resolve therefore this Court grants summary judgment in
favor of the plaintiffs.
IT IS SO ORDERED.
Footnotes
1
Presumably, Attorney General Madigan in her official capacity is representing the position of all counties in Illinois and not just
the residents of Cook County.
Love v. Beshear, --- F.Supp.2d ---- (2014)
2014 WL 2957671
United States District Court, W.D. Kentucky,
at Louisiville.
Timothy LOVE, et al., Plaintiffs
v.
Steve BESHEAR, Defendant.
Civil Action No. 3:13CV
750H. | Signed July 1, 2014.
Synopsis
Background: Two same-sex couples who wished to marry
brought action challenging Kentucky's constitutional and
statutory provisions that prohibited them from doing so.
Holdings: The District Court, John G. Heyburn, II, Senior
District Judge, held that:
[1] homosexual persons constituted disadvantaged class,
justifying application of heightened equal protection scrutiny;
[2] homosexual persons constitute a quasi-suspect class for
the purposes of equal protection analysis; and
[3] Kentucky's constitutional and statutory provisions
prohibiting same-sex couples from marrying did not
withstand rational scrutiny under Equal Protection Clause.
Ordered accordingly.
West Codenotes
Ky.Const. 233A, KRS 402.005, 402.020(1)(d)
Recognized as Unconstitutional
1 U.S.C.A. 7
Validity Called into Doubt
KRS 402.040(2), 402.045
Dawn R. Elliott, Shannon Renee Fauver, Fauver Law Office,
Laura E. Landenwich, Leonard J. Dunman, IV, Louis Paz
Winner, Daniel J. Canon, Clay Daniel Walton Adams PLC,
Louisville, KY, for Plaintiffs.
Gregory L. Monge, Leigh G. Latherow, William H. Jones,
Jr., Vanantwerp, Monge, Jones, Edwards & McCann, LLP,
Ashland, KY, for Defendant.
Opinion
JOHN G. HEYBURN II, Senior District Judge.
*1 Two same-sex couples who wish to marry in Kentucky
have challenged Kentucky's constitutional and statutory
provisions that prohibit them from doing so. See KY.
CONST. 233A; KY.REV.STAT. ANN. 402.005, .020(1)
(d) (West 2014).
1
On February 12, 2014, this Court held that,
insofar as these provisions denied state recognition to same-
sex couples who were validly married outside Kentucky,
they violated the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. See Bourke v.
Beshear, 3:13CV750H, F.Supp.2d , 2014 WL
556729 (W.D.Ky. Feb. 12, 2014). Since then, these four
Plaintiffs have intervened to assert their own related claims.
2
Since the Supreme Court's landmark decision in United States
v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808
(2013), every federal court to consider state bans on same-sex
marriage and recognition has declared them unconstitutional.
Most of these courts have done so under both the Due Process
and Equal Protection Clauses of the Fourteenth Amendment
to the United States Constitution.
3
This Court's opinion
differs in that it does not determine whether Kentucky's laws
interfere with a fundamental right. The Court's chief reason
for declining to do so is its careful reading of Windsor, which
suggests that the Supreme Court is unwilling and unlikely to
view the right Plaintiffs seek to exercise as fundamental under
the Constitution.
For the reasons that follow, this Court holds that the
Commonwealth's exclusion of same-sex couples from civil
marriage violates the Equal Protection Clause.
I.
This case arises from the same history discussed at length in
Bourke, which the Court incorporates by reference. See
F.Supp.2d at , 2014 WL 556729, at *12. Briefly,
in 1998, Kentucky enacted statutory provisions that defined
marriage as between one man and one woman and voided
marriages between persons of the same sex.
4
Six years later,
in 2004, Kentucky citizens voted to approve the following
state constitutional amendment:
Only a marriage between one man
and one woman shall be valid or
recognized as a marriage in Kentucky.
A legal status identical or substantially
similar to that of marriage for
unmarried individuals shall not be
valid or recognized.
KY. CONST. 233A. Plaintiffs here are Kentucky citizens
who want to marry in Kentucky but are prevented from doing
so under these laws because they are same-sex couples.
Timothy Love and Lawrence Ysunza reside in Louisville,
Kentucky and have lived together for 34 years. On February
13, 2014, they requested a Kentucky marriage license from
the Jefferson County Clerk's Office, presenting the requisite
identification and filing fees. The Commonwealth refused to
issue them a license because they are a same-sex couple. They
allege that their inability to obtain a marriage license has
affected them in many ways. For example, last summer, Love
underwent emergency heart surgery, which had to be delayed
in order to execute documents allowing Ysunza access and
decision-making authority for Love. As another surgery
for Love is imminent, the couple fears what will happen
if complications arise. The couple fears that healthcare
providers and assisted living facilities may not allow them to
be together or care for each other as they age. In addition,
the couple has had difficulties with professional service
providers; they found out after they purchased their home that
their real estate attorney disregarded their request to include
survivorship rights in the deed.
*2 Maurice Blanchard and Dominique James reside in
Louisville, Kentucky and have been together for ten years.
On June 3, 2006, they had a religious marriage ceremony in
Louisville. On January 22, 2013, they requested a Kentucky
marriage license from the Jefferson County Clerk's Office,
presenting the requisite identification and filing fees. The
Commonwealth refused to issue them a license because they
are a same-sex couple. They too have faced challenges as
a result. For example, they allege that their neighborhood
association will not recognize them as a married couple
because Kentucky does not allow them to marry. In addition,
their inability to obtain parental rights as a married couple
has deterred them from adopting children. They also share a
number of Love and Ysunza's concerns.
Plaintiffs assert that Kentucky's laws violate the Equal
Protection Clause by denying them a marriage license and
refusing them the accompanying benefits that opposite-sex
spouses enjoy. See Bourke, F.Supp.2d at ,
2014 WL 556729, at *23 (describing these benefits in
detail). These benefits include but are not limited to: lower
income and estate taxes, leave from work under the Family
and Medical Leave Act, family insurance coverage, the
ability to adopt children as a couple, the participation in
critical legal and medical decisions on behalf of one's partner,
and, perhaps most importantly, the intangible and emotional
benefits of civil marriage. Plaintiffs seek an order declaring
the state's pertinent constitutional and statutory provisions
unconstitutional and enjoining their enforcement.
Although many courts have discussed the Equal Protection
and Due Process Clauses in tandem, ultimately, this Court
sees this case as more clearly about the imposition of a
classification than about the contours of a due process right.
The constitutional question is whether a state can lawfully
exclude a certain class of individuals, i.e. homosexual
persons, from the status and dignity of marriage. The Court
will resolve Plaintiffs' claims solely on equal protection
grounds.
5
No one disputes that Kentucky's laws treat same-sex couples
differently than opposite-sex couples who wish to marry in
Kentucky. No one disputes that the equal protection issue
before the Court involves purely questions of law. Therefore,
Plaintiffs' challenge is properly resolved on summary
judgment. The Court must decide whether Kentucky's laws
violate Plaintiffs' federal constitutional rights.
II.
Before reaching the constitutional issues, the Court must
address Defendant's preliminary argument that Baker v.
Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), bars
Plaintiffs' challenge to the Commonwealth's ban on same-sex
marriage.
6
In Baker, the Supreme Court dismissed for want
of a substantial federal question a challenge to a Minnesota
Supreme Court ruling, which found that a same-sex couple
did not have the right to marry under the federal Due Process
or Equal Protection Clauses. Id. (per curiam); see Baker v.
Nelson, 291 Minn. 310, 191 N.W.2d 185, 187 (1971). Such a
summary dismissal is usually binding precedent, see Mandel
v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d
199 (1977), unless doctrinal developments indicate that the
Court would rule differently now, see Hicks v. Miranda, 422
U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Today,
it is difficult to take seriously the argument that Baker bars
Plaintiffs' challenge.
*3 Since 1972, a virtual tidal wave of pertinent doctrinal
developments has swept across the constitutional landscape.
For example, Romer v. Evans invalidated under the Equal
Protection Clause a state constitutional amendment that
discriminated on the basis of sexual orientation. 517 U.S. 620,
63536, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Shortly
thereafter, Lawrence v. Texas invalidated under the Due
Process Clause a state law criminalizing homosexual sodomy.
539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).
Most recently, Windsor held unconstitutional Section 3 of the
Defense of Marriage Act (DOMA), 1 U.S.C. 7, which
defined marriage and spouse for the purposes of federal
law in a way that excluded same-sex partners. 133 S.Ct.
at 2695. In Windsor, the Supreme Court ignored the Baker
issue in oral argument and in its opinion, even though the
Second Circuit had ruled on it. See Windsor v. United States,
699 F.3d 169, 17879 (2d Cir.2012). The Court's silence
supports a view that Baker is a dead letter.
7
See Wolf v.
Walker, 986 F.Supp.2d 982, , 2014 WL 2558444, at *5
(W.D.Wis.2014). Indeed, since Windsor, almost every court
to confront this issue has found that Baker is not controlling.
8
This Court concludes that, due to doctrinal developments,
Baker does not bar consideration of Plaintiffs' claims.
III.
[1] [2] The most difficult part of the equal protection
analysis here is determining the proper standard of review.
Courts consider two factors. First, courts look to the
individual interests affected by the challenged law.
Zablocki v. Redhail, 434 U.S. 374, 383, 98 S.Ct. 673,
54 L.Ed.2d 618 (1978) (quotation omitted). If a statutory
classification significantly interferes with the exercise of [a
fundamental] right, heightened scrutiny applies. Id.
[3] Next, courts examine the nature of the classification
imposed by the law. Id. The Supreme Court has fashioned
three different levels of scrutiny that correspond to
certain statutory classifications. Most statutory classifications
receive rational basis review, under which the classification
must only be rationally related to a legitimate governmental
purpose. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct.
1910, 100 L.Ed.2d 465 (1988) (citation omitted). Under this
deferential standard, the law must be upheld if there is any
reasonably conceivable set of facts that could provide a
rational basis for the classification, and the state need not
present any evidence. FCC v. Beach Commc'ns, Inc., 508 U.S.
307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).
[4] [5] The two heightened tiers of scrutiny demand
more exacting judicial review. Under strict scrutiny, the
state must show that the statutory classification is narrowly
tailored to further a compelling governmental interest[ ].
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227,
115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). This standard
is reserved for certain suspect classifications such as
those based on race, alienage, and national origin. See
Graham v. Richardson, 403 U.S. 365, 37172, 91 S.Ct.
1848, 29 L.Ed.2d 534 (1971). For a small number of quasi-
suspect classifications, such as gender and illegitimacy, the
courts apply intermediate scrutiny, under which the statutory
classification must be substantially related to an important
governmental objective. Clark, 486 U.S. at 461, 108 S.Ct.
1910.
*4 The Court will first consider whether heightened review
applies here based on the individual interest affected and will
next consider the nature of the statutory classification.
A.
If the classification imposed by Kentucky's laws significantly
interferes with the exercise of a fundamental right, critical
examination of the state interests advanced in support of
that classification is required, i.e. strict scrutiny applies.
Zablocki, 434 U.S. at 383, 98 S.Ct. 673 (quotation omitted).
Kentucky's laws prevent all same-sex couples from marrying.
This acts as a complete bar to Plaintiffs' ability to marry each
other, thus satisfying the significant interference threshold.
The only question that remains is whether the right Plaintiffs
seek to exercise is a fundamental righta question that
neither the Supreme Court nor the Sixth Circuit has answered.
[6] [7] The right to marry is a fundamental right situated
within the due process right to liberty. See Loving v. Virginia,
388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)
(marriage is a fundamental freedom); Skinner v. Oklahoma
ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86
L.Ed. 1655 (1942) (marriage is one of the basic civil rights);
Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67
L.Ed. 1042 (1923) (the right to marry is a central part of Due
Process liberty); Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct.
723, 31 L.Ed. 654 (1888) (marriage is the most important
relation in life). The right to marry is a nonenumerated
fundamental right; that is, it is not written in the Constitution.
Its constitutional significance arises from various protected
liberty interests, such as the right to privacy and freedom of
association. See Griswold v. Connecticut, 381 U.S. 479, 486,
85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (marriage is a right
of privacy older than the Bill of Rights); M.L.B. v. S.L.J.,
519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996)
([c]hoices about marriage ... are among associational rights
this Court has ranked as of basic importance in our society
(quoting Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct.
780, 28 L.Ed.2d 113 (1971))).
Most of our liberty interestse.g. privacy, autonomy,
procreation, travelexist independent of the government.
By contrast, civil marriage and the government are
inseparable. The state institution of marriagethe issuance
of marriage licenses and the distribution of benefits based
on marital statushas become an integral component of the
fundamental right to marry. It is in this way that civil marriage
has become objectively, deeply rooted in this Nation's
history and tradition ... and implicit in the concept of ordered
liberty. Washington v. Glucksberg, 521 U.S. 702, 72021,
117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (quotations omitted).
This atypical tie to the government makes the fundamental
right to marry all the more challenging to consider.
The three foundational right-to-marry Supreme Court cases
are Loving, 388 U.S. 1, 87 S.Ct. 1817, Zablocki, 434 U.S.
374, 98 S.Ct. 673, and, most recently, Turner v. Safley,
482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Loving
declared Virginia's anti-miscegenation law unconstitutional
on both equal protection and due process grounds. See 388
U.S. at 1112, 87 S.Ct. 1817. Zablocki held that a state
statute requiring a father to pay his past-due court-ordered
child support payments before marrying violated the Equal
Protection Clause. See 434 U.S. at 39091, 98 S.Ct. 673.
Turner found that prisoners retain their fundamental right to
marry. See 482 U.S. at 95, 107 S.Ct. 2254. In that case, the
Court's discussion of elements or incidents of marriage
suggests that evaluating the application of the fundamental
right to marry to this case might involve a discussion of the
scope or contours of the right to marry. Id. at 9596, 107 S.Ct.
2254. Under this view, the question before the Court can be
distilled to: is same-sex marriage part of or included in the
fundamental right to marry, or is it something else altogether?
*5 The best evidence of the Supreme Court's thinking on
this question is found in Justice Kennedy's recent opinions
involving sexual orientation-based classifications, Lawrence,
539 U.S. 558, 123 S.Ct. 2472, and Windsor, 133 S.Ct. 2675.
Both of these postdate the Supreme Court's major right-to-
marry cases mentioned above. Both can be interpreted to
have employed something more than rational basis review,
but neither explicitly applied heightened scrutiny, even when
intimacy, a right that seems firmly rooted in the fundamental
right to privacy and autonomy, was directly at issue. See
Lawrence, 539 U.S. at 564, 123 S.Ct. 2472.
Just last year, Windsor held Section 3 of DOMA
unconstitutional on both equal protection and due process
grounds. See 133 S.Ct. at 2695. However, Justice Kennedy's
opinion neither articulated a standard of review nor discussed
the fundamental right to marry, despite having had the
opportunity to do so. Although Windsor did not need to
squarely address the application of the fundamental right to
marry to reach its holding, Justice Kennedy's choice to remain
silent on the question is significant. Justice Kennedy could
have much more easily resolved the case by finding that
DOMA implicated a fundamental right.
If the inquiry here is viewed as a contours-of-the-right
question, holding that the fundamental right to marry
encompasses same-sex marriage would be a dramatic step
that the Supreme Court has not yet indicated a willingness to
take. Further, it is a step that is unnecessary to the ultimate
result in this action. Given the current posture of relevant
constitutional jurisprudence, this Court finds caution here a
more appropriate approach to avoid overreaching in its own
constitutional analysis.
9
B.
The Court next considers whether the statutory classification
at issue justifies heightened equal protection scrutiny, that is,
whether homosexual persons constitute a suspect class. The
Supreme Court has never explicitly decided this question. For
the reasons that follow, the Court holds that they do.
10
The Supreme Court's most recent case involving sexual
orientation did not discuss this specific issue, nor did it
declare what precise equal protection standard it applied. See
Windsor, 133 S.Ct. 2675. In a different context, the Sixth
Circuit has suggested that sexual orientation classifications
should not receive heightened scrutiny. See Davis v. Prison
Health Servs., 679 F.3d 433, 438 (6th Cir.2012). However,
as this Court previously noted, It would be no surprise ...
were the Sixth Circuit to reconsider its view. Bourke,
F.Supp.2d at , 2014 WL 556729, at *4. The Davis
decision applied rational basis review based on a line of
cases explicitly relying on Bowers v. Hardwick, 478 U.S. 186,
106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). The Supreme Court
unambiguously repudiated Bowers in its 2003 Lawrence
decision. See 539 U.S. at 578, 123 S.Ct. 2472 (Bowers
was not correct when it was decided, and it is not correct
today.); id. at 575, 123 S.Ct. 2472 ([Bowers's ] continuance
as precedent demeans the lives of homosexual persons.).
This Court, like other district courts in the Sixth Circuit,
concludes that it must now conduct its own analysis to
determine whether sexual orientation classifications should
receive heightened scrutiny. See, e.g., Bassett v. Snyder,
951 F.Supp.2d 939, 961 (E.D.Mich.2013) (The tarnished
provenance of Davis and the cases upon which it relies
provides ample reasons to revisit the question of whether
sexual orientation is a suspect classification under equal
protection jurisprudence.); Obergefell v. Wymyslo, 962
F.Supp.2d 968, 986 (S.D.Ohio 2013).
1.
*6 [8] The Supreme Court has identified four factors that
determine whether a group of persons is a disadvantaged
class for the purposes of equal protection analysis: (1)
historical discrimination, see Lyng v. Castillo, 477 U.S.
635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986); (2)
the ability to contribute to society, see City of Cleburne,
Tex. v. Cleburne Living Ctr., 473 U.S. 432, 44041, 105
S.Ct. 3249, 87 L.Ed.2d 313 (1985); (3) immutable defining
characteristics, see Lyng, 477 U.S. at 638, 106 S.Ct. 2727;
and (4) political powerlessness, see id.
11
For the reasons that
follow, the Court concludes that gay and lesbian persons are
a disadvantaged class.
[9] Historical discrimination against homosexual persons is
readily apparent and cannot reasonably be disputed. Further,
the Court cannot think of any reason why homosexuality
would affect a person's ability to contribute to society. No
court has concluded otherwise. The remaining two factors,
immutability and political powerlessness, are slightly less
straightforward.
12
[10] [11] [12] As to immutability, the relevant inquiry is
not whether a person could, in fact, change a characteristic,
but rather whether the characteristic is so integral to a
person's identity that it would be inappropriate to require
her to change it to avoid discrimination. Accord Wolf, 986
F.Supp.2d at , 2014 WL 2558444, at *28; see also
Griego v. Oliver, 2014NMSC003, 316 P.3d 865, 884
(N.M.2013). For example, strictly speaking, a person can
change her citizenship, religion, and even gender. Legislative
classifications based on these characteristics nevertheless
receive heightened scrutiny because, even though they are in
a sense subject to choice, no one should be forced to disavow
or change them. That is, these characteristics are an integral
part of human freedom entitled to constitutional protection,
as is sexual expression. Lawrence, 539 U.S. at 577, 123
S.Ct. 2472. Thus, even if sexual orientation is not strictly
immutable, it fits within the realm of protected characteristics
fundamental to a person's identity, which satisfies the
immutability factor. De Leon v. Perry, 975 F.Supp.2d 632,
651 (W.D.Tex.2014); see Wolf, 986 F.Supp.2d at , 2014
WL 2558444, at *28; Bassett, 951 F.Supp.2d at 960.
Finally, the Court finds that homosexual persons are
politically powerless within the constitutional meaning of
this phrase. In discussing this factor, the Second Circuit noted:
The question is not whether homosexuals have achieved
political influence and success over the years; they clearly
have. The question is whether they have the strength to
politically protect themselves from wrongful discrimination.
Windsor, 699 F.3d at 184. Indeed, if the standard were
whether a given minority group had achieved any political
successes over the years, virtually no group would qualify
as a suspect or quasi-suspect class. A more effective inquiry
looks to the vulnerability of a class in the political process
due to its size or political or cultural history. See Wolf, 986
F.Supp.2d at , 2014 WL 2558444, at *29. Under this
inquiry, Kentucky's laws against homosexual persons are
Exhibit A of this powerlessness.
2.
*7 Having found that all four factors clearly weigh in favor
of heightened scrutiny, the Court must identify which level
of heightened scrutiny applies. The Supreme Court has not
fully explained how to distinguish between suspect and quasi-
suspect classes.
Among the protected classifications, sexual orientation seems
most similar to the quasi-suspect classes. Sexual orientation
is not obvious in the way that race, a suspect class, is.
13
Cf. Mathews v. Lucas, 427 U.S. 495, 506, 96 S.Ct. 2755,
49 L.Ed.2d 651 (1976) (finding illegitimacy a quasi-suspect
class where perhaps in part because illegitimacy does not
carry an obvious badge, as race or sex do, ... discrimination
against illegitimates has never approached the severity or
pervasiveness of the historic legal and political discrimination
against women and Negroes). It is certainly not more
apparent than a person's sex, which is a quasi-suspect class.
See Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50
L.Ed.2d 397 (1976) (applying intermediate scrutiny to gender
classifications); Frontiero v. Richardson, 411 U.S. 677, 685
86, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality opinion)
(women face pervasive discrimination in part because of
the high visibility of the sex characteristic). For this reason,
to afford greater protection to sexual orientation than gender
would seem inappropriate.
In addition, some courts have found sexual orientation similar
to gender in various ways. See Windsor, 699 F.3d at 18485
(listing parallels between the status of women at the time the
Court found they constituted a suspect class and homosexual
individuals today, and finding homosexual persons to be
quasi-suspect class based in part on analogy to gender);
accord Wolf, 986 F.Supp.2d at , 2014 WL 2558444,
at *29; Whitewood v. Wolf, 1:13CV1861, F.Supp.2d
, , 2014 WL 2058105, at *14 (M.D.Pa. May 20,
2014). For example, although the acceptance of homosexual
persons has improved markedly in recent decades, they still
face pervasive, although at times more subtle, discrimination
... in the political arena. Windsor, 699 F.3d at 184 (quoting
Frontiero, 411 U.S. at 68586, 93 S.Ct. 1764) (internal
quotation marks omitted).
[13] [14] This Court finds that homosexual persons
constitute a quasi-suspect class based on the weight of the
factors and on analogy to the classifications recognized as
suspect and quasi-suspect. Windsor, 699 F.3d at 185. In so
doing, it agrees with the Second Circuit and the many other
district courts to confront this question. See id.; see, e.g.,
Whitewood, F.Supp.2d at , 2014 WL 2058105, at
*14; Wolf, 986 F.Supp.2d at , 2014 WL 2558444, at
*29. Quasi-suspect classes are given intermediate scrutiny.
See Clark, 486 U.S. at 461, 108 S.Ct. 1910. Therefore, here,
the state must show that the sexual orientation classification
imposed by Kentucky's laws is substantially related to an
important governmental objective. Id.
IV.
Ultimately, Kentucky's laws banning same-sex marriage
cannot withstand constitutional review regardless of the
standard. The Court will demonstrate this by analyzing
Plaintiffs' challenge under rational basis review.
14
*8 [15] [16] Under this standard, Plaintiffs have the
burden to prove either that there is no conceivable legitimate
purpose for the law or that the means chosen to effectuate a
legitimate purpose are not rationally related to that purpose.
Rational basis review, while deferential, is not toothless.
Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d
522, 532 (6th Cir.1998) (quoting Mathews, 427 U.S. at
510, 96 S.Ct. 2755). Courts insist on knowing the relation
between the classification adopted and the object to be
attained. Romer, 517 U.S. at 632, 116 S.Ct. 1620. This
ensure[s] that classifications are not drawn for the purpose
of disadvantaging the group burdened by the law. Id. at 633,
116 S.Ct. 1620.
A.
[17] The Court will begin with Defendant's only asserted
justification for Kentucky's laws prohibiting same-sex
marriage: encouraging, promoting, and supporting the
formation of relationships that have the natural ability
to procreate. Perhaps recognizing that procreation-based
arguments have not succeeded in this Court, see Bourke,
F.Supp.2d at , 2014 WL 556729, at *8, nor any other
court post-Windsor, Defendant adds a disingenuous twist to
the argument: traditional marriages contribute to a stable birth
rate which, in turn, ensures the state's long-term economic
stability.
These arguments are not those of serious people. Though it
seems almost unnecessary to explain, here are the reasons
why. Even assuming the state has a legitimate interest in
promoting procreation, the Court fails to see, and Defendant
never explains, how the exclusion of same-sex couples from
marriage has any effect whatsoever on procreation among
heterosexual spouses. Excluding same-sex couples from
marriage does not change the number of heterosexual couples
who choose to get married, the number who choose to have
children, or the number of children they have. See Bishop
v. United States ex rel. Holder, 962 F.Supp.2d 1252, 1291
(N.D.Okla.2014) (Marriage is incentivized for naturally
procreative couples to precisely the same extent regardless of
whether same-sex couples (or other non-procreative couples)
are included.). The Court finds no rational relation between
the exclusion of same-sex couples from marriage and the
Commonwealth's asserted interest in promoting naturally
procreative marriages.
The state's attempts to connect the exclusion of same-sex
couples from marriage to its interest in economic stability
and in ensuring humanity's continued existence are at best
illogical and even bewildering. These arguments fail for
the precise reasons that Defendant's procreation argument
fails.
15
Numerous courts have repeatedly debunked all other reasons
for enacting such laws. The Court can think of no other
conceivable legitimate reason for Kentucky's laws excluding
same-sex couples from marriage.
B.
To sidestep these obvious deficiencies, Defendant argues
that the state is not required to draw perfect lines in its
classifications. By this argument, the state can permissibly
deny marriage licenses to same-sex couples but not other
couples who cannot or choose not to procreate naturally.
*9 [18] It is true that [a] classification does not
fail rational-basis review because it is not made with
mathematical nicety or because in practice it results in some
inequality. Heller v. Doe, 509 U.S. 312, 321, 113 S.Ct. 2637,
125 L.Ed.2d 257 (1993) (quoting Dandridge v. Williams,
397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970))
(internal quotation marks omitted). However, that Kentucky's
laws do not deny licenses to other non-procreative couples
reveals the true hypocrisy of the procreation-based argument.
Cf. Bishop, 962 F.Supp.2d at 129192 (finding state laws'
failure to deny marriage licenses to other nonprocreative
couples to be probative of a lack of rationality under the logic
of City of Cleburne, 473 U.S. at 448, 105 S.Ct. 3249, as
explained by Bd. of Trustees of Univ. of Ala. v. Garrett, 531
U.S. 356, 366, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001)). Even
[r]ationality review has a limit, and this well exceeds it. Id.
at 1293.
More importantly, the imperfect line-drawing argument
assumes incorrectly that the Court bases its ruling on
a comparison between same-sex couples and other non-
procreative couples. On the contrary, this Court bases its
ruling primarily upon the utter lack of logical relation between
the exclusion of same-sex couples from marriages and
any conceivable legitimate state interest. Any relationship
between Kentucky's ban on same-sex marriage and its
interest in procreation and long-term economic stability
is so attenuated as to render the distinction arbitrary or
irrational. City of Cleburne, 473 U.S. at 446, 105 S.Ct.
3249. This Court agrees with the many other federal courts
that have found procreation-related arguments incapable
of withstanding rational basis review. See, e.g., Baskin v.
Bogan, 1:14CV00355RLYTAB, F.Supp.2d ,
, 2014 WL 2884868, at *13 (S.D.Ind. June 25, 2014);
Geiger v. Kitzhaber, 6:13CV01834MC, F.Supp.2d
, , 2014 WL 2054264, at *13 (D.Or. May 19,
2014); DeBoer v. Snyder, 973 F.Supp.2d 757, 76465
(E.D.Mich.2014); Bishop, 962 F.Supp.2d at 1291; Kitchen v.
Herbert, 961 F.Supp.2d 1181, 121112 (D.Utah 2013).
In sum, the laws challenged here violate Plaintiffs'
constitutional rights and do not further any conceivable
legitimate governmental purpose. Therefore, Kentucky's laws
cannot withstand rational basis review.
V.
In Bourke, this Court devoted considerable thought and
effort to addressing the sincere questions and concerns of
Kentuckians about the recognition of same-sex marriage. See
F.Supp.2d at , 2014 WL 556729, at *1012.
All those comments are equally true today.
Not surprisingly, the Bourke opinion received significant
attention and response, both in support and in opposition.
Those opposed by and large simply believe that the state has
the right to adopt a particular religious or traditional view
of marriage regardless of how it may affect gay and lesbian
persons. But, as this Court has respectfully explained, in
America even sincere and long-held religious views do not
trump the constitutional rights of those who happen to have
been out-voted.
*10 On the other side, many responses reinforced in
very personal ways how unconstitutional discrimination
harms individuals and families to their very core. These
responses reinforce the notion that invalidating Kentucky's
laws validates the enduring relationships of same-sex couples
in the same way that opposite-sex couples' relationships are
validated.
Since this Court's Bourke opinion, the legal landscape of
same-sex marriage rights across the country has evolved
considerably, with eight additional federal district courts and
one circuit court invalidating state constitutional provisions
and statutes that denied same-sex couples the right to marry.
See Kitchen v. Herbert, No. 134178, F.3d ,
2014 WL 2868044 (10th Cir. June 25, 2014); Baskin,
F.Supp.2d , 2014 WL 2884868; Wolf, 986 F.Supp.2d
982; Whitewood, F.Supp.2d , 2014 WL 2058105;
Geiger, F.Supp.2d , 2014 WL 2054264; Latta v.
Otter, 1:13CV00482CWD, F.Supp.2d , 2014
WL 1909999 (D.Idaho May 13, 2014); De Leon, 975
F.Supp.2d 632; DeBoer, 973 F.Supp.2d 757; Bostic v. Rainey,
970 F.Supp.2d 456 (E.D.Va.2014). With this opinion, this
Court joins their company.
Sometimes, by upholding equal rights for a few, courts
necessarily must require others to forebear some prior
conduct or restrain some personal instinct. Here, that would
not seem to be the case. Assuring equal protection for same-
sex couples does not diminish the freedom of others to any
degree. Thus, same-sex couples' right to marry seems to be
a uniquely free constitutional right. Hopefully, even those
opposed to or uncertain about same-sex marriage will see it
that way in the future.
The Court's holding today is consistent with Bourke, although
it requires different relief. The ability to marry in one's state
is arguably much more meaningful, to those on both sides
of the debate, than the recognition of a marriage performed
in another jurisdiction. But it is for that very reason that the
Court is all the more confident in its ruling today.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED THAT to the extent Ky.Rev.Stat.
402.005 and .020(1)(d) and Section 233A of the Kentucky
Constitution deny same-sex couples the right to marry in
Kentucky, they violate the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution, and
they are void and unenforceable.
IT IS FURTHER ORDERED that for all the reasons set forth
in this Court's Memorandum Opinion and Orders in this case
dated February 28, 2014 and March 19, 2014, the order here
is STAYED until further order of the Sixth Circuit.
This is a final and appealable order.
1
Sections 402.040(2) and .045 were also challenged,
but these provisions address [m]arriage in another
state and the recognition and enforceability of [s]ame-
sex marriage [solemnized] in another jurisdiction,
respectively. KY.REV.STAT. ANN. 402.040(2), .045
(West 2014). These sections do not seem to affect
Plaintiffs' right to marry in the Commonwealth. To the
extent that they do, this Memorandum Opinion and Order
likewise applies to them.
2
On February 26, the Court granted Plaintiffs Timothy
Love, Lawrence Ysunza, Maurice Blanchard, and
Dominique James's motion to intervene. On the same
date, the Bourke order became final. On February 28, the
Court stayed its enforcement to allow the state to prepare
for compliance, and on March 19, the Court extended the
stay pending resolution of the state's appeal before the
Sixth Circuit Court of Appeals. On March 21, the Court
dismissed Defendant Attorney General of Kentucky Jack
Conway from this action upon his motion indicating that
he would no longer defend the challenged provisions.
As amici curiae, the American Civil Liberties
Union of Kentucky submitted a brief supporting
the intervening Plaintiffs, and the Family Trust
Foundation of Kentucky, Inc. submitted a brief in
opposition.
3
The Fourteenth Amendment to the U.S. Constitution
provides, in pertinent part:
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
U.S. CONST. amend. XIV, 1.
4
The pertinent text of these provisions is:
402.005: As used and recognized in the law of the
Commonwealth, marriage refers only to the
civil status, condition, or relation of one (1) man
and one (1) woman united in law for life, for the
discharge to each other and the community of
the duties legally incumbent upon those whose
association is founded on the distinction of sex.
402.020(1): Marriage is prohibited and void: (d)
Between members of the same sex.
402.040(2): A marriage between members of the
same sex is against Kentucky public policy and
shall be subject to the prohibitions established in
KRS 402.045.
402.045:(1) A marriage between members of the
same sex which occurs in another jurisdiction
shall be void in Kentucky. (2) Any rights granted
by virtue of the marriage, or its termination, shall
be unenforceable in Kentucky courts.
KY.REV.STAT. ANN. 402.005.045 (West 2014).
5
Plaintiffs also allege that Kentucky's laws violate (1)
the Due Process Clause of the Fourteenth Amendment,
(2) the Establishment Clause of the First Amendment,
(3) freedom of association as guaranteed by the First
Amendment, and (4) the Supremacy Clause of Article
VI.
6
This Court's Bourke analysis was limited in scope to the
distribution of state benefits to same-sex couples validly
married outside Kentucky. See Bourke v. Beshear,
3:13CV750H, F.Supp.2d , , 2014 WL
556729, at *1 (W.D.Ky. Feb. 12, 2014). Therefore, the
precedential value of Baker was not at issue.
7
In addition, at the oral argument for Windsor's
companion case Hollingsworth v. Perry, U.S.
, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013), Justice
Ginsburg interrupted counsel's argument that Baker
precluded the Court's consideration of the claim by
saying: Mr. Cooper, Baker v. Nelson was 1971. The
Supreme Court hadn't even decided that gender-based
classifications get any kind of heightened scrutiny.
Transcript of Oral Argument at *12, Hollingsworth v.
Perry, U.S. , 133 S.Ct. 2652, 186 L.Ed.2d 768
(2013) (No. 12144), available at 2013 WL 1212745.
8
See, e.g., Kitchen v. Herbert, No. 134178, F.3d
, , 2014 WL 2868044, at *10 (10th Cir.
June 25, 2014); Baskin v. Bogan, 1:14CV00355
RLYTAB, F.Supp.2d , , 2014 WL
2884868, at *6 (S.D.Ind. June 25, 2014); Wolf v. Walker,
986 F.Supp.2d 982, , 2014 WL 2558444, at *6
(W.D.Wis.2014); Whitewood v. Wolf, 1:13CV1861,
F.Supp.2d , , 2014 WL 2058105, at *6
(M.D.Pa. May 20, 2014); Geiger v. Kitzhaber, 6:13
CV01834MC, F.Supp.2d , n. 1, 2014
WL 2054264, at *1 n. 1 (D.Or. May 19, 2014); Latta
v. Otter, 1:13CV00482CWD, F.Supp.2d ,
, 2014 WL 1909999, at *9 (D.Idaho May 13,
2014); De Leon v. Perry, 975 F.Supp.2d 632, 648
49 (W.D.Tex.2014); DeBoer v. Snyder, 973 F.Supp.2d
757, 773 n. 6 (E.D.Mich.2014); Bostic v. Rainey, 970
F.Supp.2d 456, 470 (E.D.Va.2014); Bishop v. United
States ex rel. Holder, 962 F.Supp.2d 1252, 1277
(N.D.Okla.2014); Kitchen v. Herbert, 961 F.Supp.2d
1181, 1195 (D.Utah 2013). The only post-Windsor case
disallowing a challenge to a state ban on same-sex
marriage is Merritt v. Attorney Gen., CIV.A. 1300215
BAJ, 2013 WL 6044329, at *2 (M.D.La. Nov. 14,
2013). The Court does not find Merritt persuasive, as the
viability of Baker was not briefed, and the court did not
clearly state that it was dismissing on Baker grounds.
9
Under the inapplicable but analogous canon of
constitutional avoidance, courts are instructed to exercise
judicial restraint to avoid unnecessarily reaching
a question of constitutional law. Cf. Ashwander
v. Tennessee Valley Auth., 297 U.S. 288, 346
48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis,
J. concurring) (listing seven situations in which
constitutional avoidance is appropriate).
10
This Court's Bourke opinion discussed but did not decide
this issue. See F.Supp.2d at , 2014 WL
556729, at *45.
11
Since Windsor, every court to consider these factors has
concluded that each applies to homosexual persons. See,
e.g., Wolf, 986 F.Supp.2d at , 2014 WL
2558444, at *2729; Whitewood, F.Supp.2d at
, 2014 WL 2058105, at *1114.
12
Immutability and lack of political power are not strictly
necessary factors to identify a suspect class. Windsor v.
United States, 699 F.3d 169, 181 (2d Cir.2012) (citing
City of Cleburne, Tex. v. Cleburne Living Ctr., 473
U.S. 432, 442 n. 10, 105 S.Ct. 3249, 87 L.Ed.2d 313
(1985) ( [T]here's not much left of the immutability
theory, is there? ) (internal quotation omitted)); id.
(citing City of Cleburne, 473 U.S. at 472 n. 24, 105 S.Ct.
3249 (Marshall, J., concurring in part and dissenting
in part) (The political powerlessness' of a group may
be relevant, but that factor is neither necessary, as the
gender cases demonstrate, nor sufficient, as the example
of minors illustrates.) (internal quotation omitted)).
13
Of course, national origin and alienage are often not
apparent and yet are suspect classifications.
14
In Bourke, the Court explored the question whether
Windsor altered the application of rational basis review
in the same-sex marriage context. See Bourke v.
Beshear, 3:13CV750H, F.Supp.2d ,
, 2014 WL 556729, at *67 (W.D.Ky. Feb.
12, 2014). The Court identified two principles from
Justice Kennedy's opinion. The first is that the actual
purpose of Kentucky's laws is relevant to this analysis
to the extent that their purpose and principal effect was
to treat two groups differently. Id. at , at *6.
The legislative history of Kentucky's constitutional ban
clearly demonstrates the intent to permanently prevent
the performance of same-sex marriages in Kentucky,
which suggests animus against same-sex couples. See
id. at n. 15, at *7 n. 15. The second principle
is that such a ban demeans one group by depriving
them of rights provided for others. Id. at , at *7.
Kentucky's laws undoubtedly burden the lives of same-
sex couples by excluding them from the institution of
marriage and all of its associated benefits. While there
is some evidence of animus against homosexual persons,
many people likely supported Kentucky's laws based on
sincere religious and traditional reasons. Bourke thus
concluded that, absent a clear showing of animus, the
Court must apply traditional rational basis review. See id.
15
Amicus the Family Trust Foundation phrased the state's
interest slightly differently: to channel the presumptive
procreative potential of man-woman couples into
committed unions for the good of children and
society. It then went on to make the exact same
argumentschiefly, responsible procreation and child-
rearing, steering naturally procreative relationships into
stable unions, and promoting the optimal childrearing
environmentthat this Court in Bourke and other federal
courts have rejected. See F.Supp.2d at , 2014
WL 556729, at *8. The Court sees no need to readdress
these arguments and incorporates its Bourke discussion
by reference.

IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN
AND FOR MIAMI-DADE COUNTY,
FLORIDA
CATHERINA PARETO, et al., CIVIL DIVISION
CASE NO.: 14-1661 CA 24
Plaintiffs,
vs.
HARVEY RUVIN, as Clerk of the Courts
of Miami-Dade County, Florida, in his official
capacity,

Defendant,

and

THE STATE OF FLORIDA,

Intervenor-Defendant.
_____________________________________/

ORDER GRANTING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
This Cause came to the Court on the Plaintiffs Motion for Summary Judgment. The
Court, having reviewed the motion, the States memorandum of law in opposition, and the
amicus briefs, having considered the arguments of counsel, and being otherwise fully advised in
the premises, hereby finds as follows:
I. INTRODUCTION
The following language, set forth by the United States Supreme Court forty seven years
ago, applies equally to the instant case when references to race are removed:
To deny this fundamental freedom on so unsupportable a basis as the . . .
classifications embodied in these statutes, classifications so directly subversive of
the principle of equality at the heart of the Fourteenth Amendment, is surely to
deprive all the State's citizens of liberty without due process of law. The
Fourteenth Amendment requires that the freedom of choice to marry not be
restricted by invidious . . . discriminations.

Page 2 of 36 Case No. 14-1661-CA-01

Loving v. Virginia, 388 U.S. 1, 12 (1967). Loving was not cited once in the States brief, and it
was disingenuous of it to ignore this seminal case rather than attempting to distinguish it.
Nevertheless, this Court finds that the only distinction between Loving and the instant case is
that the instant case deals with laws that deny the fundamental freedom to marry based upon
peoples sexual orientation rather than their race. Because this denial is the denial of a
fundamental right, it would have to be narrowly tailored to serve a compelling governmental
interest in order to be valid. The statutes and constitutional amendment at issue do not meet this
standard, nor do they meet the rational basis standard which only requires them to be rationally
related to a legitimate governmental interest. For the reasons stated below, this Court finds that
Floridas statutory and constitutional restrictions on same-sex marriage violate the Due Process
and Equal Protection Clauses of the United States Constitution. They improperly infringe upon
the Plaintiffs ability to exercise their fundamental right to marry the person of their choice, and
upon their liberty interests regarding personal autonomy, family integrity, association, and
dignity. They also unlawfully discriminate on the basis of sexual orientation.
A. The Parties
The Plaintiffs include six couples who live in Florida, as well as Equality Florida
Institute, Inc., a Florida based civil rights organization focused upon the rights of Floridas
lesbian, gay, bisexual, and transgender community. Catherina Pareto and Karla Arguello have
been in a committed relationship for fourteen years. Together, the couple is raising a fifteen-
month-old son that they adopted in July 2013. Juan Carlos Rodriguez and David Price have been
in a committed relationship for nearly eighteen years. The couple is raising three year old twins.
Vanessa and Melanie Alenier have been in a committed relationship for eight years, and
together, they are raising a son, whom they adopted in August 2010. Todd and Jeff Delmay have

been in a committed relationship for eleven years. In May 2010, they too adopted a son and are
raising him together as his parents. Summer Greene and Pamela Faerber have been in a
committed relationship for twenty-five years. Together, they raised Mrs. Faerbers teenage
daughter from a previous marriage and currently have two grandchildren. Don Price Johnston
and Jorge Diaz have been in a committed relationship for one year and recently became engaged.
Aside from being of the same-sex, each couple meets all of Floridas legal requirements
for the issuance of a marriage license, and on January 17, 2014, each couple personally appeared
at the Office of the Clerk of the Courts in Miami-Dade County and applied for a marriage
license. However, the Clerk, in his official capacity and through his authorized deputy, refused
each application because both Florida law and the State Constitution prohibit same-sex marriage.
741.04(1), 741.212 Fla. Stat. (2013); Art. I, 27, Fla. Const. The Plaintiff couples assert that
those portions of Floridas Constitution and statutes which prohibit them from getting married
violate the Due Process and Equal Protection Clauses of the United States Constitution.
The Miami-Dade Clerk of the Courts is the original Defendant in this case. The Clerk is
duty-bound to remain neutral and cannot choose which laws and court decisions to follow. Thus,
the Clerk has neither argued in favor of, nor against, the marriage bans at issue.
The State of Florida intervened in this case approximately one week prior to hearing on
the instant motion for summary judgment. The State fully participated in the argument before
this Court, presenting both a written response to the motion and an oral argument. The State
asserts the marriage bans do not violate the United States Constitution.
Amicus groups Florida Family Action, Inc. [FFAI], Florida Democratic League, Inc.
[FDL], and People United To Lead The Struggle For Equality, Inc. [PULSE] each played an
instrumental role in gathering signatures to place Floridas constitutional amendment against

same-sex marriage on the ballot, and in educating and mobilizing voters to support it. In
addition, FFAI actually drafted the Amendment. They also assert that Floridas marriage bans
do not violate the United States Constitution, and they prepared a lengthy brief and argued at the
hearing on the motion for summary judgment. Though it did not submit a brief, Amicus
Christian Family Coalition was allowed by the Court to participate in that hearing with a short
oral argument against granting summary judgment.
In addition, the cities of Miami Beach and Orlando filed an amicus brief
1
and presented
oral argument to this Court against Floridas same-sex marriage bans. The cities contend these
laws not only violate the U.S. Constitution, they create social and economic harm, particularly
within those cities. Charles J. Charlie Crist, who was Floridas governor when its constitution
was amended to ban same-sex marriage, filed a notice supporting this position and also asserts
that society has fundamentally changed since Florida adopted its constitutional amendment
against same-sex marriage.
The Court thanks the parties and amici as their efforts ensured that all aspects of this legal
issue were fully asserted and argued.
B. Florida and Same-sex Marriage Prohibitions
Same-sex marriage has been explicitly prohibited in Florida by law since 1977, when the
Legislature amended section 741.04(1), to expressly bar county judges and circuit court clerks
from issuing a license for the marriage of any person unless . . . one party is a male and the
other party is a female. This section was Floridas only law concerning same-sex marriage until
the 1990s, when, in 1993, the Hawaii Supreme Court held that its states prohibition of same-sex
marriage was discriminatory under the Hawaiian Constitution. See Baehr v. Lewin, 852 P.2d 44

1
The Village of Biscayne Park, Florida, subsequently joined this brief and adopted its arguments.

(1993). This decision marked the first time that any court recognized same-sex marriage, and
[t]he reaction was immediate and visceral. In the next few years, twenty-seven states passed
anti-same-sex marriage legislation, and Congress passed the Defense of Marriage Act (DOMA).
Bourke v. Beshear, 2014 WL 556729 at *1 (W.D. Ky. 2014) (internal citations omitted). Florida
was among those states. In 1997, the Legislature enacted section 741.212, Florida Statutes,
which specifically addresses Marriages between persons of the same-sex. The section
provides that:
1) Marriages between persons of the same sex entered into in any jurisdiction,
whether within or outside the State of Florida, the United States, or any other
jurisdiction, either domestic or foreign, or any other place or location, or
relationships between persons of the same sex which are treated as marriages
in any jurisdiction, whether within or outside the State of Florida, the United
States, or any other jurisdiction, either domestic or foreign, or any other place
or location, are not recognized for any purpose in this state.

2) The state, its agencies, and its political subdivisions may not give effect to any
public act, record, or judicial proceeding of any state, territory, possession, or
tribe of the United States or of any other jurisdiction, either domestic or
foreign, or any other place or location respecting either a marriage or
relationship not recognized under subsection (1) or a claim arising from such a
marriage or relationship.

3) For purposes of interpreting any state statute or rule, the term marriage
means only a legal union between one man and one woman as husband and
wife, and the term spouse applies only to a member of such a union.

A similar reaction swept through the nation in 2003 after the Massachusetts Supreme
Judicial Court legalized same-sex marriage, and Massachusetts began issuing same-sex marriage
licenses the following year. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass.
2003). This time, however, gay marriage opponents initiated campaigns to enact constitutional
amendments to protect traditional marriage. Bourke, 2014 WL 556729 at *2. By amending
state constitutions to prohibit same-sex marriage, opponents of such unions could ensure that
same-sex marriage bans would not be held to violate their state constitutions. The campaign to

amend state constitutions came to Florida in 2008, and a ballot-initiative to add the following
language to the Florida Constitution was placed before Florida voters:
Inasmuch as marriage is the legal union of only one man and one woman as
husband and wife, no other legal union that is treated as marriage or the
substantial equivalent thereof shall be valid or recognized.

The voters approved, and said amendment is now article 1, section 27 of Floridas Constitution.
C. This Case
The instant complaint challenges the validity of article I, section 27 of the Florida
Constitution, and the portions of sections 741.04(1) and 741.212, Florida Statutes, which
preclude same-sex couples from marrying in Florida on the basis that they violate the Due
Process and Equal Protection Clauses of the Fourteenth Amendment to the United States
Constitution. Relatedly, the Clerk of the Court has asked the Court to 1) address section 741.05,
Florida Statutes, as this law makes violating section 741.04(1) a misdemeanor offense; and 2)
provide guidance on how to modify the marriage license forms if necessary.
At its heart, this case is about the right to marry the person of ones choice. It is about
whether the right to marry can be denied to members of a particular group based upon their
sexual orientation, and whether couples and families who have members that fall into that group
are entitled to the respect, benefits, and protections which marriage brings.
However, it is important to note that this decision only affects civil marriage. It will not
affect any religious institutions rights involving marriage. Just as religion cannot be used to
justify the laws at issue, this Court cannot require religious institutions to perform or recognize
same-sex marriages. See DeBoer v. Snyder, 973 F. Supp. 2d 757, 773 (E.D. Mich. 2014) (The
same Constitution that protects the free exercise of one's faith in deciding whether to solemnize
certain marriages rather than others, is the same Constitution that prevents the state from either

mandating adherence to an established religion, or enforcing private moral or religious beliefs
without an accompanying secular purpose.) (internal citation omitted).
2
Similarly, this order
does not interfere with any individuals religious or other fundamental rights.
II. Summary Judgment
The Plaintiffs have moved for summary judgment. Summary judgment is proper if there
are no genuine issues of material facts and if the moving party is entitled to a judgment as a
matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.
2000); see also Fla. R. Civ. P. 1.510 (2014). Only competent evidence may be considered in
ruling on a motion for summary judgment, Bryson v. Branch Banking & Trust Co., 75 So. 3d
783, 786 (Fla. 2d DCA 2011), and a court must review the record evidence in the light most
favorable to the non-moving party. Daneri v. BCRE Brickell, LLC, 79 So. 3d 91, 94 (Fla. 3d
DCA 2012) (internal citation omitted).
Here, the Plaintiffs contend that no genuine issue of material fact is disputed in this case
and only a purely legal question remains: whether Floridas same-sex marriage bans are
constitutional. The Party-Defendants neither challenge this argument nor dispute the ripeness of
this cause for disposition by summary judgment. Only Amicus Curiae FFAI, FDL and PULSE
assert that issues of fact are in doubt. More specifically, these amici claim the Plaintiffs have
presented no evidence on issues such as whether they are Florida residents who applied for and
were denied marriage licenses. An amicus, however, is not an official party to a case, and thus,
should not argue the facts in issue. Ciba-Geigy Ltd. v. Fish Peddler, Inc., 683 So. 2d 522, 523

2
It is also worth noting that civil marriage is a legal construct, not a biological rule of nature, so it can be and has
been changed over the years; there is nothing impossible about defining marriage to include same-sex couples, as
has been demonstrated by the decisions of a number of countries and states to do just that. Wolf v. Walker, 2014
WL 2558444 *19 (W.D. Wisc. 2014).


(Fla. 4th DCA 1996). Regardless, each Plaintiff filed a declaration on May 1, 2014 stating, in
pertinent part, that he or she: 1) lives in Florida; 2) went to the Miami-Dade Countys Clerk of
Courts Office to apply for a marriage license; 3) meets all of Floridas marriage requirements
except for the fact that he or she is the same gender as the person that he or she wants to marry;
and that 4) the Clerk, per Florida law, refused to issue marriage licenses because the members of
each couple were of the same-sex. No facts other than these are needed to resolve the legal
issues in this case.
III. Preliminary Challenges
This Court must resolve two threshold issues before addressing the Plaintiffs due process
and equal protection claims. First, the State asserts this Court lacks subject-matter jurisdiction
over the Plaintiffs claims because Plaintiffs exclusively rely on the United States Constitution,
and the United States Supreme Court has found that challenges to a States refusal to recognize
same-sex marriage do not raise a substantial federal question. See Baker v. Nelson, 409 U.S.
810 (1972). Second, both the State and the Amici opposing same-sex marriage claim this Court
cannot overturn article 1, section 27, of the Florida Constitution because it was a citizen-initiated
amendment, and this Court is bound to respect the will of the voters.
A. Baker v. Nelson
In 1972, the United States Supreme Court dismissed a challenge to a states denial of a
marriage license to a same-sex couple for want of a substantial federal question. Id. In the
instant case, the State argues that Baker bars this Court from finding that Floridas same-sex
marriage bans violate the United States Constitution. However, given doctrinal developments
that have occurred over the last forty years, including the landmark case of United States v.
Windsor, 133 S.Ct 2675 (2013), it no longer appears that Baker is controlling. In fact, there have

been over twenty cases which have been decided since Windsor which have examined whether
state same-sex marriage bans are constitutional, and based on the Courts review not one has
found Baker bars such examination.
3

The United States Supreme Court has held that its dismissals for want of a substantial
federal question are decisions on the merits, despite being summary dispositions. Hicks v.
Miranda, 422 U.S. 332, 344 (1975). As such, they are binding upon lower courts, unless
doctrinal developments since the finding of insubstantiality suggest that the Court would rule
differently now. Id.; Mandel v. Bradley, 432 U.S. 173, 176 (1977); see also Kitchen v. Herbert,
2014 WL 2868044 (10th Cir. 2014); Love v. Beshear, 2014 WL 2957671 (W.D. Ky. July 1,
2014). The issue, therefore, is whether the Supreme Court would still find that a same-sex
marriage challenge does not raise a substantial federal question.
4

Given the deluge of pertinent doctrinal developments that have mushroomed across the
constitutional landscape since 1972: it is difficult to take seriously the argument that Baker bars
the Plaintiffs challenge today. Love v. Beshear, 2014 WL 2957671 at *2-3 (W.D. Ky. July 1,
2014). For example, two decades after Baker, the United States Supreme Court quashed, on

3
It is also worth noting that every one of those cases has found that same-sex marriage bans violate the United
States Constitution, including a very recent (July 17, 2014) Florida case from the Sixteenth Judicial Circuit, striking
down the same laws challenged in this case.

4
The State argues that since Hicks and Mandel, the Supreme Court has prohibited departures from its precedent
even if there appears to be a doctrinal shift. See Agostini v. Felton, 521 U.S. 203, 207 (1997) (The Court neither
acknowledges nor holds that other courts should ever conclude that its more recent cases have, by implication,
overruled an earlier precedent.); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (If
a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of
decisions, [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of
overruling its own decisions.). However, these later cases do not purport to overrule the doctrinal developments
rule specifically set forth in Hicks regarding dismissals for want of a substantial federal question. See Kitchen, 2014
WL 2868044 at *8, n.2 (10th Cir. 2014). More specifically, Agostini and Rodriguez de Quijas only address the
impermissibility of overruling by implication the legal holdings set forth in full opinions; they say nothing about
summary dismissals for want of a substantial federal question. Thus, per their own reasoning, Rodriguez de Quijas
and Agostini do not overrule Hicks by implication. Hicks stands as good law, and therefore, if doctrinal shifts
suggest that the Supreme Court would no longer find an issue fails to raise a substantial federal question, then its
previous finding of insubstantiality is no longer binding.
Page 10 of 36 Case No. 14-1661-CA-01

equal protection grounds, a state constitutional amendment that discriminated on the basis of
sexual orientation. Romer v. Evans, 517 U.S. 620 (1996). In 2003, the Court found that due
process protects the liberty of homosexuals to engage in intimate sexual conduct. Lawrence v.
Texas, 539 U.S. 558 (2003). And just last year, the Court struck down Section 3 of DOMA,
which defined marriage and spouse to exclude same-sex marriages from federal
recognition. Windsor, 133 S.Ct 2675 (2013). It is therefore untenable to assert that the Supreme
Court continues to deem that issues concerning sexual orientation discrimination, gay rights, or
same-sex marriage are in want of a substantial federal question. See Kitchen, 2014 WL
2868044 at *10 (10th Cir. 2014) ([I]t is clear that doctrinal developments foreclose the
conclusion that the [same-sex marriage] issue is, as Baker determined, wholly insubstantial.).
5

Thus, this Court finds that Baker does not prevent it from considering whether Floridas same-
sex marriage restrictions violate the federal Constitution.
B. Will of the Voters
The State and the amici opposing same-sex marriage also assert this Court lacks subject-
matter jurisdiction because article 1, section 27 of Floridas Constitution was enacted via a
citizen-led ballot initiative, and this Court must respect the voters policy preferences. While
citizen-participation in government and the right to vote are the hallmarks of a democracy, it is
also the judiciarys responsibility to examine the constitutionally of the laws of this State when
they are called into question. See Marbury v. Madison, 5 U.S. 137 (1803) The law is not a static
entity. It evolves and adapts to social change. This Nation and State, moreover, are
constitutional democracies with certain principles enshrined into a governing text. A states

5
See also Transcript of Oral Argument at *12, for Hollingsworth v. Perry, 133 S.Ct. 2652 (2013), Statement of
Justice Ruth Bader Ginsberg, available at 2013 WL 1212745 (Baker v. Nelson was 1971. The Supreme Court
hadn't even decided that gender-based classifications get any kind of heightened scrutiny. . . . And same-sex intimate
conduct was considered criminal in many States in 1971, so I don't think we can extract much [from Baker.]).
Page 11 of 36 Case No. 14-1661-CA-01

constitution cannot insulate a law that otherwise violates the U.S. Constitution. The United
States Constitution would be meaningless if its principles were not shielded from the will of the
majority. See W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).
The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles to be applied by the courts.
One's right to life, liberty, and property, to free speech, a free press, freedom of
worship and assembly, and other fundamental rights may not be submitted to
vote; they depend on the outcome of no elections.

Id. (emphasis added). Accordingly, the will of the voters does not immunize Article 1, Section
27 of Floridas Constitution from judicial review into whether it comports with the commands of
the U.S. Constitution. See Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 981 (S.D. Ohio 2013).
Regardless of the justifications provided by an enactment's proponents, . . . if
such an enactment violates the U.S. Constitutionwhether passed by the people
or their representativesjudicial intervention is necessary to preserve the rule of
law . . . The electorate cannot order a violation of the Due Process or Equal
Protection Clauses by referendum or otherwise, just as the state may not avoid
their application by deferring to the wishes or objections of its citizens.

Id. (emphasis supplied). To hold otherwise would sanction the tyranny of the majority.
6

IV. Due Process
The Fourteenth Amendment to the U.S. Constitution states, in pertinent part, that:
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.

U.S. CONST., amend. XIV, 1. The portion of this Amendment stating that no State shall
deprive any person of life, liberty, or property, without due process of law, is known as the

6
The Court does not mean to disparage anyone who voted for Floridas same-sex marriage amendment by using the
phrase, tyranny of the majority. This commonly used term of art simply means that a majority of people, no
matter how good their intentions, or sincere in their beliefs, if not checked in their power, may, in imposing upon
others what they believe to be right, interfere with the rights of those others. Our Nations Founders, at the dawn of
our nation, were well-aware of this possibility, and they consequently designed our system of government to include
various checks on the will of the voters so that it does not impinge upon the rights of the minority.
Page 12 of 36 Case No. 14-1661-CA-01

Due Process Clause, and it protects the fundamental rights of the people. The liberty protected
by this clause encompasses those freedoms expressed in the Bill of Rights as well as other
fundamental rights. See Troxel v. Granville, 530 U.S. 57, 65 (2000). As explained by the
United States Supreme Court:
The Due Process Clause guarantees more than fair process, and the liberty it
protects includes more than the absence of physical restraint. Collins v. Harker
Heights, 503 U.S. 115, 125 (1992) ([Due Process] protects individual liberty
against certain government actions regardless of the fairness of the procedures
used to implement them.). The Clause also provides heightened protection
against government interference with certain fundamental rights and liberty
interests. Reno v. Flores, 507 U.S. 292, 301-302 (1993).

Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997). (internal citations omitted or altered).
In other words, all fundamental rights comprised within the term liberty are protected by the
Federal Constitution from invasion by the States. Whitney v. California, 274 U.S. 357, 373
(1927) (Brandeis, J., concurring).
A. The Right to Marry
Indisputably among the other liberties protected by due process is the right to marry.
Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (listing marriage as one of the rights that are
[w]ithout doubt protected by the Due Process Clause). Supreme Court recognition of marriage
as a fundamental, important, and vital right is not only long-standingsee Maynard v. Hill, 125
U.S. 190, 206 and 211 (1888) (calling marriage the most important relation in life and the
foundation of the family and of society) it has also been frequently reaffirmed.
7
The United

7
See Zablocki v. Redhail, 434 U.S. 374, 383-86 (1978) (reaffirming the fundamental character of marriage and
stating that it is of fundamental importance for all individuals); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632,
639-40 (1974) (This Court has long recognized that freedom of personal choice in matters of marriage and family
life is one of the liberties protected by the Due Process Clause.); United States v. Kras, 409 U.S. 434, 446 (1973)
(listing marriage as a right that the Court has come to regard as fundamental and that demand the lofty requirement
of a compelling governmental interest before they may be significantly regulated); Loving v. Virginia, 388 U.S. 1,
12 (1967) (The freedom to marry has long been recognized as one of the vital personal rights essential to the

Page 13 of 36 Case No. 14-1661-CA-01

States Supreme Court has also found that marriage is related to other protected rights such as
privacy and association. See Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (referring to the
privacy surrounding the marriage relationship); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996)
(Choices about marriage, family life, and the upbringing of children are among associational
rights this Court has ranked as of basic importance in our society,. . . , rights sheltered by the
Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect.)
(internal citations ommitted). Thus, marriage is clearly a fundamental right that is protected by
the Fourteenth Amendment.
B. Scope of Marriage Right
Nevertheless, the State asserts that there is no fundamental right to same-sex marriage
because that specific category of marriage is not objectively, deeply rooted in this Nations
history and tradition. Glucksberg, 521 U.S. at 720-21.
8
However, none of the United States
Supreme Courts proclamations on the fundamental right to marry have defined marriage
categorically. See Latta v. Otter, 2014 WL 1909999 *12 (D. Idaho 2014) (While Glucksberg
demands that new rights be carefully described and deeply rooted, . . . the Supreme Court has
long recognized an unembellished right to marry.); Henry v. Himes, 2014 WL 1418395 at *7
(S.D. Ohio 2014) (The Supreme Court has consistently refused to narrow the scope of the
fundamental right to marry by reframing [it] as a more limited right that is about the
characteristics of the couple seeking marriage.).

orderly pursuit of happiness . . . . Marriage is one of the basic civil rights . . . fundamental to our very existence
and survival.) (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).

8
The State points out that same-sex marriage was not permitted anywhere in the United States until 2003 and was
not permitted in any country before 2000.

Page 14 of 36 Case No. 14-1661-CA-01

The Supreme Court has never analyzed whether a fundamental right to marry exists by
defining the right to include only those who are not being excluded from access to that right.
Most obviously, in Loving v. Virginia, the Court did not inquire whether interracial marriage
was a basic civil right, but instead identified marriage as the basic civil right at issue and
examined whether a State could deny that right to people who wished to marry someone of
another race. See Loving 388 U.S. at 12; see also Kitchen, 2014 WL 2868044 at *13 (10th Cir.
2014) ([T]he question as stated in Loving, and as characterized in subsequent opinions, was not
whether there is a deeply rooted tradition of interracial marriage, or whether interracial marriage
is implicit in the concept of ordered liberty; the right at issue was the freedom of choice to
marry.) Similarly, in a challenge to a state law limiting the ability of child-support debtors to
marry, the Court spoke of the fundamental character of the right to marry, not of a right for
child-support debtors to marry. See Zablocki, 434 U.S. at 383-86. Likewise, when reviewing
restrictions on prisoners access to marriage, the Court only analyzed the degree to which the
right to marry could be restricted for prisoners; it did not examine whether a right to prisoner
marriage was deeply rooted in our history and tradition. See Turner v. Safley, 482 U.S. 78, 95-
96 (1987). In short, by categorizing the right at issue the right to same-sex marriage rather
than the right to marriage, the State is attempt[ing] to narrowly parse a right that the Supreme
Court has framed in remarkably broad terms, See Latta, 2014 WL 1909999 at *12.
9

9
That constitutional rights should not be defined narrowly is demonstrated by the analysis set forth in Lawrence v.
Texas, 539 U.S. 558 (2003), a case examining the constitutionality of a law prohibiting sodomy, in which the United
States Supreme Court found that its previous analysis in Bowers v. Hardwick, 478 U.S. 186, 190 (1986)
misconstrued the right at issue by stating the issue of the case too narrowly:

The Court began its substantive discussion in Bowers as follows: The issue presented is whether
the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and
hence invalidates the laws of the many States that still make such conduct illegal and have done so
for a very long time. Id., at 190. That statement, we now conclude, discloses the Courts own
failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply

Page 15 of 36 Case No. 14-1661-CA-01

When analyzing the scope of the fundamental right to marry (or any fundamental right),
it would be both circular and insincere to use the group being denied a right to define the right
itself. See Kitchen, 2014 WL 2868044 at *18-19 (10th Cir. 2014) (stating that the assertion
that plaintiffs are excluded from the institution of marriage by definition is wholly circular, and
that in describing the liberty interest at stake, it is impermissible to focus on the identity or
class-membership of the individual exercising the right.); Henry, 2014 WL 1418395 at *7 (The
Supreme Court has consistently refused to narrow the scope of the fundamental right to marry by
reframing a plaintiffs asserted right to marry as a more limited right that is about the
characteristics of the couple seeking marriage.); See also Goodridge, 798 N.E.2d at 97273
(Greaney, J., concurring) (To define the institution of marriage by the characteristics of those to
whom it always has been accessible, in order to justify the exclusion of those to whom it never
has been accessible, is conclusory and bypasses the core question.).
Same-sex couples desire not to redefine the institution [of marriage] but to participate in
it. Kitchen, 2014 WL 2868044 at *18. The right Plaintiffs seek to exercise is not a new right,
but is rather a right that these individuals have always been guaranteed by the United States

the right to engage in certain sexual conduct demeans the claim the individual put forward, just as
it would demean a married couple were it to be said marriage is simply about the right to have
sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to
do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more
far-reaching consequences, touching upon the most private human conduct, sexual behavior, and
in the most private of places, the home. The statutes do seek to control a personal relationship that,
whether or not entitled to formal recognition in the law, is within the liberty of persons to choose
without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the
meaning of the relationship or to set its boundaries absent injury to a person or abuse of an
institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon
this relationship in the confines of their homes and their own private lives and still retain their
dignity as free persons. When sexuality finds overt expression in intimate conduct with another
person, the conduct can be but one element in a personal bond that is more enduring. The liberty
protected by the Constitution allows homosexual persons the right to make this choice.
Lawrence, 539 U.S. at 566-67.

Page 16 of 36 Case No. 14-1661-CA-01

Constitution. Whitewood v. Wolf, 2014 WL 2058105 (M.D. Pa. 2014). Although this right has
always been theirs, it is only recently that historical blinders have begun to fall so that we have
been able to recognize that the right belongs to them as well. Simply put, fundamental rights
belong to everyone. See Henry, 2014 WL 1418395 at *8.
10
All individuals have a fundamental
right to marry. See Latta, 2014 WL 1909999 at *12; Zablocki, 434 U.S. at 384 ([T]he right to
marry is of fundamental importance for all individuals) (emphasis added). The inquiry is not
whether there is a right to same-sex marriage, but whether same-sex couples can be
excluded from the right to marriage. See Wolf, 2014 WL 2558444.
C. States Ability to Regulate the Fundamental Right to Marry
As with all fundamental rights, marriage is subject to regulation by the States. See
Windsor, 133 S.Ct. at 2680. However, a state's broad authority to regulate matters of state
concern does not include the power to violate an individual's protected constitutional rights.
Latta, 2014 WL 1909999 at *1; see Windsor, 133 S.Ct. at 2680 (Subject to certain
constitutional guarantees, . . . regulation of domestic relations is an area that has long been
regarded as a virtually exclusive province of the States.) (internal citations omitted). Thus, a
States marriage laws must respect the constitutional rights of persons . . . . Windsor, 133 S.Ct.

10
Although fundamental rights belong to everyone, our understanding of those rights and the limitations
that it is permissible to place upon them have changed over time. As explained in Lawrence:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the
Fourteenth Amendment known the components of liberty in its manifold possibilities,
they might have been more specific. They did not presume to have this insight. They
knew times can blind us to certain truths and later generations can see that laws once
thought necessary and proper in fact serve only to oppress. As the Constitution endures,
persons in every generation can invoke its principles in their own search for greater
freedom.
Lawrence 539 U.S. at 57879.

Page 17 of 36 Case No. 14-1661-CA-01

at 2691. In particular, as it pertains to this case, the powers of a State are subject to the
commands of the Fourteenth Amendment. See Loving, 388 U.S. at 7.
D. Standard of Scrutiny for Restrictions on the Fundamental Right to Marry
Although the government may place restrictions on fundamental rights, including the
right to marry, such restrictions must meet a certain standard in order to be valid: A restriction
will only be upheld if the infringement is narrowly tailored to serve a compelling state interest.
Flores, 507 U.S. at 302; see also D.M.T. v. T.M.H., 129 So. 3d 320, 339 (Fla. 2013) (We
subject statutes that interfere with an individual's fundamental rights to strict scrutiny analysis,
which requires the State to prove that the legislation furthers a compelling governmental interest
through the least intrusive means.)
E. Government Interests
In the instant case, the State has not identified any government interest served by banning
same-sex marriages. Instead, it argues that the rational basis test applies, that it has no obligation
to identify such interests, and that this Court must instead examine every conceivable basis
which might support same-sex marriage bans. Although this Court has determined that strict
scrutiny applies to this case because it involves a restriction on the fundamental right to marry, it
will not assume that the State implicitly concedes that no other legitimate or compelling state
interest exists for these bans. The Court, in the interest of thoroughness, will address the
arguments of the amici supporting the bans, arguments discussed in the opinions of other courts
on this issue, and arguments put forth by the State of Florida in Brenner, et al. v. Scott, Case No.
4:14cv 107-RH/CAS, which is pending in the United Stated District Court for the Northern
District of Florida.

Page 18 of 36 Case No. 14-1661-CA-01

a. Tradition
In Brenner, the State of Florida argued that the same-sex marriage ban is supported by
history and tradition and the Amici supporting the ban make the same argument here. This
argument, in essence, is that our long-history of denying same-sex couples the right to marry is
reason enough to continue doing so. However, neither the antiquity of a practice nor the fact of
steadfast legislative and judicial adherence to it through the centuries insulates it from
constitutional attack. Williams v. Illinois, 399 U.S. 235, 239 (1970). Tradition alone does not
constitute a rational basis for any law because preserving tradition for its own sake is a circular
proposition. See De Leon v. Perry, 975 F. Supp. 2d 632, 655 (W.D. Tex. 2014). The Framers
also understood that contemporary prejudices can blind us to certain truths and later generations
can see that laws once thought necessary and proper in fact serve only to oppress. Lawrence,
539 U.S. at 579. The Constitution is not so rigid that it always mandates the same outcome
even when its principles operate on a new set of facts that were previously unknown. Kitchen
v. Herbert, 961 F. Supp. 2d 1181, 1203 (D. Utah 2013).
Thus, history and tradition may be the road to substantive due process inquiry, but they
are not always the final destination. See Lawrence, 539 U.S. at 572. Instead, history and
tradition identify the liberties due process protects; but once a right is recognized, the courts do
not carry forward historical limitations of that right. Henry, 2014 WL 1418395 at *8; see also
Planned Parenthood of SE Pennsylvania v. Casey, 505 U.S. 833, 847 (1992) (holding that history
and tradition are not to be defined at the most specific level when determining whether a right
is protected by due process).
11

11
Adherence to the pasts prescriptions on fundamental rights would not only defeat the purpose of recognizing the
right itself, it would license society to continue practices, such as the separation of races, which we now abhor. If
historic limitations created limits to fundamental rights, not only could interracial couples still be excluded from

Page 19 of 36 Case No. 14-1661-CA-01

Using history as a starting point, marriage, as previously noted, has been viewed in our
country as a fundamental, important, and vital right. Furthermore, as argued by the amici
opposing same-sex marriage, marriage has existed for millennia. See Memorandum of Law of
Amici Curiae FFAI, FDL, and PULSE in Opposition to Plaintiffs Motion for Summary
Judgment at 11. However, by focusing solely on when same-sex marriage was first legalized in
the United States, the State and its amici diminish marriages true meaning and value. They also
lose sight of the fact that the capacity to form, preserve and celebrate loving, intimate, and
lasting relationships is an innate human quality that bears no relation to sexual orientation.
Bostic v. Rainey, 970 F. Supp. 2d 456, 473 (E.D. Va. 2014). Same and opposite sex marriage
are two-sides of the same coin, and therefore, since we have always given great deference to an
individuals personal relationship choices, our Nations history and tradition actually favors
marriage equality for homosexuals. See Bostic, 970 F. Supp. 2d at 472-73.
Denying same-sex couples the right to marry, only because marriage has historically and
traditionally been between a man and a woman, is neither a compelling nor even a legitimate
governmental interest. See Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 998
(N.D. Cal. 2012) (finding that the argument that the definition of marriage should remain the
same for the definition's sake is a circular argument, not a rational justification.)
b. Childrearing
The amici opposing same-sex marriage next claim the marriage bans at issue are
necessary because opposite-sex households are the best environment for childrearing. Protecting

marriage, but black and white children could still be required to attend different schools, unmarried persons could
still be prevented from obtaining contraceptives, homosexuals could still be prohibited from engaging in sexual
intimacy, and Native Americans could still be denied the right to vote. See Loving, 388 U.S. 1; Brown v. Bd. of
Educ. of Topeka, Kan., 349 U.S. 294 (1955); Eisenstadt v. Baird, 405 U.S. 438 (1972); Lawrence, 539 U.S. at 566-
67; Harrison v. Laveen, 67 Ariz. 337, 341, 196 P.2d 456, 458 (1948).

Page 20 of 36 Case No. 14-1661-CA-01

children is undoubtedly a compelling governmental interest. However, denying same-sex
couples the right to marry does not promote that goal. In Florida Dept. of Children & Families v.
Adoption of X.X.G., 45 So. 3d 79, 86-87 (Fla. 3d DCA 2010) the Third District Court of Appeal
accepted the trial courts findings that:
The quality and breadth of research available . . . [on] gay parenting and children
of gay parents, is robust and has provided the basis for a consensus in the field.
Many well renowned, regarded and respected professionals have [produced]
methodologically sound longitudinal and cross-sectional studies into hundreds of
reports . . . [that have been] published in many well-respected peer reviewed
journals [and thus] withstood the rigorous . . . process [of being] tested
statistically, rationally and methodologically by seasoned professionals prior to
publication.

In addition to the volume, the body of research is broad; comparing children
raised by lesbian couples to children raised by married heterosexual couples;
children raised by lesbian parents from birth to children raised by heterosexual
married couples from birth; children raised by single homosexuals to children
raised by single heterosexuals; and children adopted by homosexual parents to
those raised by homosexual biological parents, to name a few. These reports and
studies find that there are no differences in the parenting of homosexuals or the
adjustment of their children. These conclusions have been accepted, adopted and
ratified by the American Psychological Association, the American Psychiatry
Association, the American Pediatric Association, the American Academy of
Pediatrics, the Child Welfare League of America, and the National Association of
Social Workers. As a result, based on the robust nature of the evidence available
in the field, this Court is satisfied that the issue is so far beyond dispute that it
would be irrational to hold otherwise.

Id. (emphasis supplied). Laws based on an unfounded presumption are unconstitutional. See
De Leon, 975 F. Supp. at 654.
The Third District Court of Appeal also found the States argument was undermined by
the fact that it utilize[ed] homosexual persons as foster parents or guardians on a temporary or
permanent basis, while imposing a blanket prohibition on adoption by those same persons. In
re Adoption of X.X.G., 45 So. 3d at 86. Though this finding was made in the context of gay
adoption, the same dichotomy exists with Floridas marriage laws. Currently, homosexuals can
Page 21 of 36 Case No. 14-1661-CA-01

legally, and do, start families via adoption, assisted reproductive technology, or by being foster
parents or guardians. Accordingly, the issue of same-sex marriage is inapposite to the purported
goal of preventing same-sex couples from being parents. Rather, the marriage bans merely
prevent same-sex couples from having their already existent families and partnerships
recognized in the same manner as opposite-sex couples. This discrepancy not only demeans the
couple, but humiliates tens of thousands of children now being raised by same-sex couples.
Windsor, 133 S. Ct. at 2694. Thus, laws limiting marriage to opposite-sex couples actually harm
the amicis stated objective of promoting the best interest of children. See id. ([DOMA] makes
it even more difficult for the children to understand the integrity and closeness of their own
family and its concord with other families in their community and in their daily lives.).
Promoting the best interest of children bears no relationship whatsoever to denying same-sex
marriage, and therefore, this justification fails both strict scrutiny and rational basis analysis.
c. Procreation
The amici opposing same-sex marriage also contend that Floridas restrictions on same-
sex marriage further responsible and natural procreation. Marriage, however, cannot and has
never been preconditioned on ones ability to reproduce. Procreation is simply one reason
among many to marry. See Turner v. Safley, 482 U.S. 78, 95-96 (1987) (listing some of the
important attributes of marriage); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968,
993 (N.D. Cal. 2012); Baker v. State, 744 A.2d 864, 881 (Vt. 1999) (It is equally undisputed
that many opposite-sex couples marry for reasons unrelated to procreation.). Florida, for
instance, like all other states, allows post-menopausal women, infertile individuals, and
individuals who choose to refrain from procreating to marry. See De Leon, 975 F. Supp. 2d at
Page 22 of 36 Case No. 14-1661-CA-01

654. Thus, adopting this rationale to prevent same-sex marriage would only undercut the
legitimacy of many opposite-sex couple marriages.
The amici, moreover, have not explained how banning same-sex marriage makes it more
or less likely that heterosexuals will marry and engage in activities that can lead to procreation.
De Leon, 975 F. Supp. 2d at 654. It is wholly illogical to believe that state recognition of the
love and commitment between same-sex couples will alter the most intimate and personal
decisions of opposite-sex couples. Kitchen, 2014 WL 2868044 at *26 (10th Cir. 2014).
Procreation, after all, freelyand not always irresponsiblyoccurs outside of wedlock. While
only opposite-sex couples can naturally procreate, they too use artificial means like adoption
and assisted reproductive technology to start families. Floridas same-sex marriage prohibitions
only hinder the encouragement of stable environments for procreation, see De Leon, 975 F.
Supp. 2d at 654; because the reality today is that [an] increasing number of same-sex couples
are employing [these artificial] techniques to conceive and raise children. Baker, 744 A.2d at
882 (Vt. 1999). Barring same-sex couples from marrying is not narrowly tailored to the
governments interest in encouraging any particular type of procreation, and thus it does not pass
strict scrutiny. It is not even rationally related to that interest.
d. Other Possible Justifications
In similar challenges to same-sex marriage bans of other states, supporters of these laws
have raised a variety of different arguments from the foregoing, but the fact that no court has yet
to uphold such a ban since the Supreme Court decided Windsor is indicative of the merits of
these other arguments. The amici supporting Floridas same-sex marriage bans also raise one
claim that appears to be unique. They insist these laws prevent the spread of HIV and certain
cancers that are more prevalent among gay men. They assert that allowing same-sex marriage
Page 23 of 36 Case No. 14-1661-CA-01

will de-stigmatize homosexual conduct, and thereby encourage sexual practices which help
spread those diseases. However, it is absurd to suggest that a marriage law can combat a medical
disease. The alleged connection between banning same-sex marriage and affecting
homosexuals intimate conduct is not narrowly tailored to the result it seeks to accomplish, and it
is too indirect and theoretical to pass even the rational basis test. Moreover, stigmatization and
moral disapproval are not constitutionally permissible bases for legislation. Windsor, 133 S.Ct at
2693; Lawrence, 539 U.S. at 584. Supporters of these laws have relatedly stressed the
importance of proceeding with caution on this issue. However, [t]he basic guarantees of our
Constitution are warrants for the here and now and, unless there is an overwhelmingly
compelling reason, they are to be promptly fulfilled. Watson v. Memphis, 373 U.S. 526, 532-
33 (1963). This Court, therefore, cannot deny same-sex couples their martial rights simply for
the sake of delay.
F. Harmful Impact of Prohibiting Same-Sex Marriage
The amici opposing same-sex marriage argue that marriage is inherently good. Id. at 20.
They state that Marriage provides a framework for mutual benefits financial, sexual and
otherwise and for affection. Id. (internal citations omitted). They also argue that it is
inherently good for structuring families, and that families are the building blocks for a healthy
society, and for encouraging permanence and exclusivity in relationships. These benefits, or
purposes of marriage are inherently good. Id. The Plaintiffs agree with these sentiments.
As the United States Supreme Court explained:
Marriage is a coming together for better or for worse, hopefully enduring, and
intimate to the degree of being sacred. It is an association that promotes a way of
life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not
commercial or social projects. Yet it is an association for as noble a purpose as
any involved in our prior decisions.

Page 24 of 36 Case No. 14-1661-CA-01

Griswold, 381 U.S. at 486; see also Kitchen, 961 F. Supp. 2d at 1202-03 (D. Utah 2013)
([Marriage is] the right to make a public commitment to form an exclusive relationship and
create a family with a partner with whom the person shares an intimate and sustaining emotional
bond). Marriage is not just good; it is noble.
Supporting Floridas same-sex marriage bans, however, conflicts with the amicis interest
in protecting and advancing this inherently good institution because these laws do nothing but
limit the institution. For instance, because of these laws, same-sex couples are denied:
The right to be supported financially during marriage, enforced by criminal
penalties for non-support. Killian v. Lawson, 387 So. 2d 960, 962 (Fla. 1980);
61.90, 856.04, Fla. Stat.

The right to be a presumed parent to a child born to a spouse during marriage.
Fla. Dept of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006);
742.091, 742.11(a), Fla. Stat.

The right to make medical decisions for an ill or incapacitated spouse without an
advance health care directive. 765.401, Fla. Stat.

The right to spousal insurance coverage and benefits, when spousal benefits are
otherwise available.

A host of federal rights and responsibilities that pertain to married couples,
including but not limited to, those related to Social Security, Medicare, Medicaid,
the Family Medical Leave Act, and the Veterans Administration.

The right to a court-ordered equitable distribution of property upon the dissolution
of the marriage. 61.075, Fla. Stat.

The right to receive certain workers compensation benefits for a deceased spouse
who has died as a result of a work-related accident. 440.16, Fla. Stat.

The right to inherit a share . . . [and] to priority in appointment as the personal
representative of the estate of a spouse who dies without a will. 732.201,
733.301, Fla. Stat.

The right to receive an elective share of the estate of a spouse who died with a
will. 732.201, Fla. Stat.

Page 25 of 36 Case No. 14-1661-CA-01

The privilege not to have a spouse testify in a court proceeding about confidential
communications made during the marriage. 90.504, Fla. Stat.

The right of spouses of military personnel to be eligible to participate in the
states employment advocacy and assistance program for military spouses.
445.005, Fla. Stat.

Compl. at 3-5. Without access to these and other rights, homosexuals are made second-class
citizens, and [o]ur Constitution . . . neither knows nor tolerates classes among citizens. Plessy
v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
Although some employers utilize creative benefit structures that attempt to compensate
for the unavailability of same-sex marriage, no such workaround is able to fully alleviate the
damage of same-sex marriage bans. See Brief of the City of Miami Beach and the City of
Orlando as Amici Curiae in Support of the Plaintiffs at 14-18. Furthermore, these workarounds
also impose significant administrative burdens on said employers. Id.
As such, the Court concludes that same-sex marriage neither harms humanity nor
undermines marriage and family as institutions. These concepts indeed play central roles in
society, but they have broad and inherently mutable definitions. See BLACKS LAW DICTIONARY
637, 992 (8th ed. 2004) (defining marriage as a legal union of a couple and family as 1.)
a group of persons connected by blood, . . . affinity, or by law; 2.) a group consisting of parents
and their children; or as 3.) a group of persons who live together and have a shared commitment
to a domestic relationship); see also AMERICAN HERITAGE DICTIONARY 488 (2d college ed.
1982). The concepts of marriage and family have also, in fact, changed over time. D.M.T., 129
So. 3d at 337 (The legal parameters and definitions of parents, marriage, and family have
undergone major changes in the past several decades, from holding a state's ban on interracial
marriage unconstitutional, see Loving v. Virginia, 388 U.S. 1, . . . to recognizing the
fundamental right to be a parent even for unmarried couples . . . . (internal citations omitted).
Page 26 of 36 Case No. 14-1661-CA-01

In respect of civil rights, all citizens are equal before the law. Plessy, 163 U.S. at 559
(Harlan, J., dissenting). Treating homosexuals as inferiors, undeserving of the fundamental right
to marry the individual that they love, deprives them of basic human dignity. Accordingly, it is
held that article I, section 27 of Floridas Constitution, and those parts of sections 741.04(1) and
741.212, Florida Statutes, prohibiting same-sex couples from marrying in Florida violate the due
process protections of the Fourteenth Amendment. These unconstitutional laws are thus void
and unenforceable. Furthermore, as shown below, they also violate the federal constitutional
guarantee of equal protection.
V. Equal Protection
The Plaintiffs contend that Floridas same-sex marriage ban unlawfully discriminates on
the basis of sexual orientation in violation of the Equal Protection Clause of the Fourteenth
Amendment. The Equal Protection clause commands that no State shall deny to any person
within its jurisdiction the equal protection of the laws, which is essentially a direction that all
persons similarly situated should be treated alike. City of Cleburne, Tex. v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985) (quoting U.S. CONST., amend. XIV., 1). The United States
Supreme Court has nonetheless recognized that effective governance requires this constitutional
promise to coexist with the practical necessity that most legislation classifies for one purpose or
another, with resulting disadvantage to various groups or persons. Romer, 517 U.S. at 631.
A. Standard of Review
Accordingly, the Court has held that, so long as a law neither burdens a fundamental
right nor targets a suspect class, we will uphold the legislative classification so long as it bears a
rational relation to some legitimate end. Id. It is this link that gives substance to the Equal
Protection Clause. Id. at 632. However, laws that impair a fundamental right, or target a
Page 27 of 36 Case No. 14-1661-CA-01

suspect class are subjected to strict or heightened review. City of Dallas v. Stanglin, 490 U.S. 19,
23 (1989); D.M.T., 129 So. 3d at 339. Suspect classifications include those based on race,
alienage, or national origin, Cleburne, 473 U.S. at 440; and as previously discussed, in order to
survive strict scrutiny, the government must show that a law is narrowly tailored towards
furthering a compelling [governmental] interest. Flores, 507 U.S. at 302. There is also a mid-
level review for certain classifications, such as those based on sex, that the Court has deemed
quasi-suspect. See United States v. Virginia, 518 U.S. 515, 524 (1996). Laws targeting quasi-
suspect groups receive intermediate scrutiny, which requires the government to show that the
classification is substantially related to an important governmental objective. Id.
1. Sexual Orientation Discrimination
The marriage restrictions at issue discriminate on the basis of sexual orientation because
they prevent same-sex couples from marrying the person of their choice. To hold otherwise, i.e.,
find these laws merely impact homosexuals differently as these individuals may still marry like
opposite-sex couples, would fundamentally conflict with the constitutional guarantees
surrounding the right to marry. Marriage, after all, is about the ability to form a partnership,
hopefully lasting a lifetime, with that one special person of [ones] choosing, Baskin v. Bogan,
2014 WL 2884868 *11 (S.D. Ind. 2014); and it works a fundamental change on the lives of all
who experience it. Latta, 2014 WL 1909999 at *2. The right to marry would be meaningless if
it did not honor the choice of two consenting adults to select each other as spouses. A chosen
spouse cannot be substituted with any other person. People are not fungible. Accordingly, it is
held that Floridas same-sex marriage bans discriminate on the basis of sexual orientation.
12

12
Since the Court agrees with the Plaintiffs argument that the laws at issue discriminate on the basis of sexual
orientation, it declines to address their claim that they also discriminate based on gender. It is noted, though, that
many courts have rejected this argument. See, e.g., Wolf, 2014 WL 2558444 *22-23.

Page 28 of 36 Case No. 14-1661-CA-01

2. Level of Scrutiny for Sexual Orientation Discrimination
The question thus becomes what level of scrutiny this Court must use to examine whether
these discriminatory laws violate the constitutional promise of equal protection for targeting a
suspect class. On this matter, this Court is bound by the Florida Supreme Courts 2013 statement
that [s]exual orientation has not been determined to constitute a protected class, and therefore,
sexual orientation does not provide an independent basis for using heightened scrutiny to review
State action that results in unequal treatment to homosexuals. D.M.T., 129 So. 3d at 341-42
(applying rational basis review in an as-applied constitutional challenge to Floridas assisted
reproductive technology statute.).

However, if this Court were not bound by this statement, it might have very well agreed
with other courts examining same-sex marriage bans and finding that homosexuality is a quasi-
suspect class.
13
Laws targeting sexual orientation would consequently be subject to intermediate
scrutiny. More specifically, these other courts examined the factors set forth by the United
States Supreme Court to determine whether a class of persons is suspect. These standards
include whether the class:
(1) has been subjected to a history of purposeful unequal treatment, Mass. Bd. of Ret. v.
Murgia, 427 U.S. 307, 313 (1976) (per curiam);

13
Since the Hawaii Supreme Courts landmark decision in 1993, Baehr v. Lewin, 852 P.2d 44, 67 (1993) but before
Windsor, the state supreme courts of Connecticut, California, and Iowa as well as the Second Circuit Court of
Appeals also found sexual orientation to be a protected class. See Kerrigan v. Commr of Pub. Health, 957 A.2d
407, 432 (Conn. 2008); In re Marriage Cases, 183 P.3d 384, 442 (2008); Varnum v. Brien, 763 N.W.2d 862, 895-96
(Iowa 2009); Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012) (The Second Circuit hears appeals from
federal courts in Connecticut, New York, and Vermont.) The number of courts reaching the same conclusion has
ballooned since Windsor with the New Mexico Supreme Court, federal district courts in Ohio, Wisconsin,
Pennsylvania, Idaho, and Kentucky, and the Ninth Circuit Court of Appeals finding homosexuality a protected class.
Griego v. Oliver, 316 P.3d 865, 884 (N.M. 2013); Obergefell, 962 F. Supp. 2d at 991; Wolf, 2014 WL 2558444 at
*29; Whitewood 2014 WL 2058105 at *14; Latta, 2014 WL 1909999 at *17; Love, 2014 WL 2957671 at *7;
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014) (The Ninth Circuit hears appeals
from federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam,
and the Northern Mariana Islands.).
Page 29 of 36 Case No. 14-1661-CA-01

(2) possesses a characteristic that frequently bears no relation to ability to perform or
contribute to society, Cleburne, 473 U.S. at 44041;

(3) exhibits obvious, immutable, or distinguishing characteristics that define them as a
discrete group, Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (citations omitted); and

(4) is a minority or politically powerless. Id.

Whitewood, 2014 WL 2058105 at * 11. A quick analysis of these factors illustrates the
persuasiveness of the heightened scrutiny argument.
a. History of Discrimination
First, the notion that homosexuals have not faced a long history of discrimination has
been routinely rejected by the courts. See, e.g., Lawrence, 539 U.S. at 571 ([F]or centuries
there have been powerful voices to condemn homosexual conduct as immoral . . . lesbians and
gay men have suffered a long history of discrimination and condemnation.); Rowland v. Mad
River Local Sch. Dist., Montgomery Cnty., Ohio, 470 U.S. 1009, 1014 (1985) (Brennan, J.,
dissenting) (Moreover, homosexuals have historically been the object of pernicious and
sustained hostility, and it is fair to say that discrimination against homosexuals is likely . . . to
reflect deep-seated prejudice rather than . . . rationality. ) (internal citations omitted); High
Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990)
([H]omosexuals have suffered a history of discrimination.); BenShalom v. Marsh, 881 F.2d
454, 46566 (7th Cir. 1989) (Homosexuals have suffered a history of discrimination and still
do, though possibly now in less degree.); Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985)
([T]the strong objection to homosexual conduct . . . has prevailed in Western culture for the past
seven centuries.). Further discussion on this point is thus unnecessary as examples of this
discrimination are provided in Whitewood, 2014 WL 2058105 at *12.
14

14
In terms of government-sanctioned discrimination, in 1952, Congress prohibited gay men and women from

Page 30 of 36 Case No. 14-1661-CA-01

b. Ability to Contribute to Society
Equally indisputable and in no need of discussion is the fact that sexual orientation does
not impact an individuals ability to contribute to society. The backgrounds of the six instant
Party Couples highlight the irrationality of all arguments to the contrary.
c. Immutability
As to the immutable factor, the relevant inquiry is not whether a person could, in fact,
change a characteristic, but rather whether the characteristic is so integral to a person's identity
that it would be inappropriate to require [him or] her to change it to avoid discrimination. Love,
2014 WL 2957671 at *6 (emphasis supplied). Here, the trait at issue is sexual expression, i.e.,
something that is fundamental to a persons identity and an integral part of human freedom.
Lawrence, 539 U.S. at 577; De Leon, 975 F. Supp. 2d at 631. No one, therefore, can be asked or
expected to change his or her sexual orientation even if said choice is possible.
d. Political Power
With respect to political power, the test is not whether a group has achieved political
influence and success over the years, but whether it has the strength to politically protect

entering the country or securing citizenship. In 1953, President Eisenhower issued an executive order
banning the employment of homosexuals and requiring that private contractors currently employing gay
individuals search out and terminate them. Although the ban on hiring gay employees was lifted in 1975,
federal agencies were free to discriminate against homosexuals in employment matters until President
Clinton forbade the practice in 1998. Beginning in World War II, the military developed systematic
policies to exclude personnel on the basis of homosexuality, and, following the war, the Veterans
Administration denied GI benefits to service members who had been discharged because of their sexuality.
Within our lifetime, gay people have been the targets of pervasive police harassment, including raids on
bars, clubs, and private homes; portrayed by the press as perverts and child molesters; and victimized in
horrific hate crimes. Gay and lesbian persons have been prevented from adopting and serving as foster
parents, and the majority of states prohibit same-sex marriage.
Perhaps most illustrative of the pervasive historic discrimination faced by gays and lesbians was the
widespread and enduring criminalization of homosexual conduct. Before the 1960s, all states punished
sexual intimacy between men, and, until the publish of Lawrence . . . in 2003, thirteen states categorized
sodomy as a felony offense. Our country's military continued to make sodomy a crime until 2013.
(internal citations omitted).

Page 31 of 36 Case No. 14-1661-CA-01

[itself] from wrongful discrimination. Windsor, 699 F.3d at 184 (2d Cir. 2012). Otherwise,
virtually no group would qualify as a suspect or quasi-suspect class, especially the gay
community, which has clearly experienced political success in recent years. Love, 2014 WL
2957671 at *6. A more effective inquiry looks to the vulnerability of a class in the political
process due to its size or political or cultural history, and under this lens, Floridas same-sex
marriage bans exemplifies the political powerlessness of homosexuals. Id.
B. Scrutiny to be Applied in the Instant Case
Based on the foregoing, it is respectfully suggested that the question of what level of
judicial scrutiny applies to sexual orientation discrimination be revisited on appeal. This Court,
though, must follow the Florida Supreme Courts direction and apply rational basis review to
laws discriminating against homosexuality, provided that the law does not impact a fundamental
right. See D.M.T., 129 So. 3d at 341-342. Same-sex marriage bans, however, cannot withstand
constitutional review regardless of the standard. See, e.g., Love, 2014 WL 2957671 at *6; De
Leon, 975 F. Supp. 2d at 652; DeBoer, 973 F. Supp. 2d at 769.
As noted previously, same-sex marriage bans impact the fundamental right to marry, and
as such strict scrutiny is appropriate, but the government interests discussed do not support a
finding of constitutionality under the strict scrutiny standard. Also as previously noted, those
governmental interests fail to pass even the more lenient rational basis test. Furthermore, in
addition to not being rationally related to protecting children, banning same-sex marriage
irrationally discriminates between homosexual and heterosexual couples because there is no
requirement that opposite-sex couples be optimal parents, or to utilize any particular parenting
style, in order to be married. If the state declines to make such a requirement applicable to
heterosexual couples, there is no rational basis for making such a requirement applicable to
same-sex couples. An asserted interest in procreation likewise would irrationally discriminate
Page 32 of 36 Case No. 14-1661-CA-01

against homosexuals given that opposite-sex couples may freely marry without regard to the
ability or intent to procreate.
Legal classifications, moreover, only survive if they are based on a real difference
which is reasonably related to the subject and purpose of the regulation. State v. Leicht, 402
So. 2d 1153, 1155 (Fla. 1981) (emphasis added). It, however, is wholly illogical to believe that
state recognition of the love and commitment between same-sex couples will alter the most
intimate and personal decisions of opposite-sex couples. Kitchen, 2014 WL 2868044 at *26
(10th Cir. 2014). Accordingly, it is held that article I, section 27 of Floridas Constitution, and
the portions of sections 741.04(1) and 741.212, that preclude same-sex couples from marrying in
Florida are void and unenforceable because they violate the Equal Protection Clause of the
Fourteenth Amendment to the U.S. Constitution.
VI. Conclusion
In 1776, our Nations Founders went to war in pursuit of a then-novel, yet noble, goal:
the creation of a government that recognizes its people are endowed . . . with certain inalienable
rights and that all are equal in the eyes of the law. THE DECLARATION OF INDEPENDENCE, para.
2 (U.S. 1776). Unfortunately, history shows that prejudice corrupted the implementation of
these ideals and that the corrective wheels of justice turn at a glacial pace. Slavery, for instance,
plagued this nation from the time of its birth, and it took a bloody civil war, nearly one hundred
years later, to break free from this malady. Segregation, though, took slaverys place, and it was
not until the 1960s that we rid ourselves of this similarly horrible disease. Women too, had to
fight for equality, and it was not until 1920 that they were first able to vote. Nevertheless, like
race, it was not until the social unrest of the 1960s that gender equality had any meaning. The
Native Americans also faced rampant discrimination until the 1960s and 1970s as well.
Page 33 of 36 Case No. 14-1661-CA-01

Notably absent from this protracted march towards social justice was any progress for the
gay, lesbian, bisexual, and transgender community until quite recently. However, as evidenced
by the avalanche of court decisions unanimously favoring marriage equality, the dam that was
denying justice on this front has been broken. The Court, nonetheless, recognizes that its
decision today is divisive and will cause some Floridians great discomfort. This decision,
though, is not made in defiance of the great people of [Florida] or the [Florida] Legislature, but
in compliance with the United States Constitution and Supreme Court precedent. Without a
rational relation to a legitimate governmental purpose, state-imposed inequality can find no
refuge in our United States Constitution. De Leon, 975 F. Supp. 2d at 665-66.
The recognition that the right to marry encompasses categories of people not traditionally
considered to be accorded that right has been slow in coming, but it has become increasingly
obvious that it is not constitutionally permissible to deny same-sex couples the right to marry.
15

15
See Bourke, 2014 WL 556729 at *11-12:
[T]he right to equal protection of the laws is not new. History has already shown us that, while the
Constitution itself does not change, our understanding of the meaning of its protections and
structure evolves. If this were not so, many practices that we now abhor would still exist.
Contrary to how it may seem, there is nothing sudden about this result. The body of constitutional
jurisprudence that serves as its foundation has evolved gradually over the past forty-seven years.
The Supreme Court took its first step on this journey in 1967 when it decided the landmark case
Loving v. Virginia, which declared that Virginia's refusal to marry mixed-race couples violated
equal protection. The Court affirmed that even areas such as marriage, traditionally reserved to the
states, are subject to constitutional scrutiny and must respect the constitutional rights of persons.
Windsor, 133 S.Ct. at 2691 (citing Loving).
Years later, in 1996, Justice Kennedy first emerged as the Court's swing vote and leading
explicator of these issues in Romer v. Evans. Romer, 517 U.S. at 635 (holding that Colorado's
constitutional amendment prohibiting all legislative, executive, or judicial action designed to
protect homosexual persons violated the Equal Protection Clause). He explained that if the
constitutional conception of equal protection of the laws' means anything, it must at the very
least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a
legitimate governmental interest. Id. at 63435 (emphasis in original) [internal citation omitted].
These two cases were the virtual roadmaps for the cases to come next.
In 2003, Justice Kennedy, again writing for the majority, addressed another facet of the same issue
in Lawrence v. Texas, explaining that sexual relations are but one element in a personal bond that
is more enduring and holding that a Texas statute criminalizing certain sexual conduct between
persons of the same sex violated the Constitution. 539 U.S. at 567. Ten years later came Windsor.

Page 34 of 36 Case No. 14-1661-CA-01

The flood of cases that have come out since Windsor amply demonstrates this truth as not one
court has found a same-sex marriage ban to be constitutional. As case after case has come out,
unified in their well-reasoned constitutional condemnation of the deprivation of one class of
persons right to marry, the answer to the question of whether it is constitutionally permissible to
deprive same-sex couples of the right to marry has become increasingly obvious: Of course it is
not. Preventing couples from marrying solely on the basis of their sexual orientation serves no
governmental interest. It serves only to hurt, to discriminate, to deprive same-sex couples and
their families of equal dignity, to label and treat them as second-class citizens, and to deem them
unworthy of participation in one of the fundamental institutions of our society.
The journey of our Nation towards becoming a more perfect Union does not stop at any
particular generation; it is instead a fluid process through every generation. U.S. CONST. pmbl.
The Court, therefore, foresees a day when the term same-sex marriage is viewed in the same
absurd vein as separate but equal and is thus forsaken and supplanted by ordinary
marriage. See Whitewood, 2014 WL 2058105 at *15. Accordingly, it is hereby ORDERED
and ADJUDGED that:
1.) Floridas same-sex marriage bans violate the Due Process and Equal Protection
Clauses of the United States Constitution, and they also offend basic human dignity.
The Plaintiffs Motion for Summary Judgment is therefore GRANTED.

2.) Article 1, section 27 of Floridas Constitution is void and unenforceable.

3.) Except for those portions denying State recognition of valid same-sex marriages in
other jurisdictions, section 741.212, Florida Statutes, is also void and unenforceable.
The excepted subsections were not challenged in this case, but the Court notes their
validity is under review in Floridas Northern Federal District Court.

And, sometime in the next few years at least one other Supreme Court opinion will likely
complete this judicial journey.
Page 35 of 36 Case No. 14-1661-CA-01

4.) The portion of section 741.04(1), Florida Statutes, prohibiting the issuance of a
marriage license unless one party is a male and the other party is a female is
similarly void and unenforceable.

5.) The Clerk of Courts shall NOT be prosecuted under section 741.05, Florida Statutes,
for attempting to comply with this Order.

6.) The Clerk of Courts is also directed to modify its marriage license forms so that they
conform to this Orders holding in the manner it deems most appropriate.

7.) Understanding its ruling is unlikely to be the final word on the topic of same-sex
marriage, the Court immediately stays this Order pending the outcome of the
expected appeal(s). Although this Court recognizes that a person should not be
denied a fundamental right for even one day, it feels the uncertainty that could arise if
same-sex couples were to marry pursuant to an order that is subsequently reversed on
appeal warrants a stay. If affirmed, the Party-Defendants are hereby required to issue
marriage licenses to the Plaintiffs and to all otherwise qualified same-sex couples
who apply for marriage licenses, subject to the same restrictions and limitations
applicable to opposite-sex couples.

8.) Finally, the Court retains jurisdiction for the purposes of enforcing this Order and for
subsequent determination and assignment of attorney fees, court costs, etc.

DONE and ORDERED on July 25, 2014.

DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 07/25/14.

_____________________________
SARAH ZABEL
CIRCUIT COURT JUDGE

No Further Judicial Action Required on THIS MOTION
CLERK TO RECLOSE CASE IF POST JUDGMENT

The parties served with this Order are indicated in the accompanying 11th Circuit email
confirmation which includes all emails provided by the submitter. The movant shall
IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or
hand-delivery, to all parties/counsel of record for whom service is not indicated by the
accompanying 11th Circuit confirmation, and file proof of service with the Clerk of
Court.
Page 36 of 36 Case No. 14-1661-CA-01

Signed original order sent electronically to the Clerk of Courts for filing in the Court file.
SARAH I. ZABEL
CIRCUIT COURT JUDGE

M.D. Tennessee,
Nashville Division.
Valeria TANCO and Sophie Jesty, Ijpe DeKoe and
Thomas Kostura, and Johno Espejo and Matthew
Mansell, Plaintiffs,
v.
William Edward Bill HASLAM, as Governor of
the State of Tennessee, in his official capacity;
Larry Martin, as Commissioner of the Department
of Finance and Administration, in his official capa-
city, and Robert Cooper, as Attorney General & Re-
porter of the State of Tennessee, in his official ca-
pacity, Defendants.
Case No. 3:13cv01159.
Filed March 14, 2014.
Background: Married, same-sex couples who lived
and were legally married in other states before
moving to Tennessee brought action against Ten-
nessee officials, challenging constitutionality of
Tennessee's antirecognition laws, which voided
and rendered unenforceable in Tennessee any mar-
riage prohibited in the state. Couples moved for
preliminary injunction to prohibit officials from en-
forcing the antirecognition laws against them.
Holdings: The District Court, Aleta A. Trauger, J.,
held that:
(1) couples' cause of action accrued, and Tenness-
ee's one-year statute of limitations began to run,
each day their constitutional rights were allegedly
violated;
(2) couples had likelihood of success on merits of
their claim that the antirecognition laws violated
their constitutional rights;
(3) couples would likely suffer irreparable harm ab-
sent the injunction;
(4) balance of hardships favored issuance of the in-
junction; and
(5) public interest supported grant of the injunction.
Motion granted.
West Headnotes
212 Injunction
212II Preliminary, Temporary, and Interlocutory
Injunctions in General
212II(B) Factors Considered in General
212k1092 k. Grounds in General; Mul-
tiple Factors. Most Cited Cases
A plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance
of the equities tips in his favor, and that an injunc-
tion is in the public interest.
212 Injunction
tions in General
212k1033 k. Balancing or Weighing
Factors; Sliding Scale. Most Cited Cases
The factors to be considered in assessing
whether an injunction is appropriate are to be bal-
anced and are not prerequisites that must be satis-
fied.
[3] Limitation of Actions 241 58(1)
241 Limitation of Actions
241II Computation of Period of Limitation
241II(A) Accrual of Right of Action or De-
fense
241k58 Liabilities Created by Statute
241k58(1) k. In General. Most Cited
Cases
Married, same-sex couples' cause of action ac-
crued, and Tennessee's one-year statute of limita-
Page 1
--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
tions began to run, each day their constitutional
rights were allegedly violated by Tennessee's ongo-
ing refusal to recognize their marriages in other
states pursuant to Tennessee's antirecognition
laws, which voided and rendered unenforceable in
Tennessee any marriage prohibited in the state.
West's T.C.A. Const. Art. 11, 18; West's T.C.A.
283104(a)(3), 363113.
[4] Limitation of Actions 241 165
241IV Operation and Effect of Bar by Limita-
tion
241k165 k. Operation as to Rights or Remed-
ies in General. Most Cited Cases
The continued enforcement of an unconstitu-
tional statute cannot be insulated by the statute of
limitations.
fense
Cases
A law that works an ongoing violation of con-
stitutional rights does not become immunized from
legal challenge for all time merely because no one
challenges it within the applicable state statute of
limitations.
fense
Cases
When a law impinges each day on a plaintiff's
constitutional rights, a new limitations period be-
gins to run each day as to that day's damage.
78 Civil Rights
78V State and Local Remedies
78k1759 Injunction
Married, same-sex couples who lived and were
legally married in other states before moving to
Tennessee, seeking preliminary injunction prohibit-
ing Tennessee officials from enforcing Tennessee's
antirecognition laws against them, so as to void
their marriages and render them unenforceable in
Tennessee, had substantial likelihood of success on
merits of claim that Tennessee's antirecognition
laws violated their constitutional rights under the
equal protection clause. U.S.C.A. Const.Amend. 14
; West's T.C.A. Const. Art. 11, 18; West's T.C.A.
363113.
78 Civil Rights
78k1759 Injunction
Married, same-sex couples who lived and were
legally married in other states before moving to
Tennessee would likely suffer irreparable harm by
violation of their constitutional rights under the
equal protection clause in absence of preliminary
injunction prohibiting Tennessee officials from en-
forcing Tennessee's antirecognition laws against
them, so as to void their marriages and render them
unenforceable in Tennessee, where state's refusal to
recognize their marriages de-legitimized their rela-
tionships, degraded them in their interactions with
the state, caused them to suffer public indignity,
and invited public and private discrimination and
stigmatization. U.S.C.A. Const.Amend. 14; West's
T.C.A. Const. Art. 11, 18; West's T.C.A.
363113.
Page 2
--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
212 Injunction
212II Preliminary, Temporary, and Interlocutory
Injunctions in General
212II(B) Factors Considered in General
212k1101 Injury, Hardship, Harm, or Ef-
fect
212k1106 k. Irreparable Injury. Most
Cited Cases
The loss of a constitutional right, even for a
minimal period of time, unquestionably constitutes
irreparable injury; thus, when reviewing a motion
for preliminary injunction, if it is found that a con-
stitutional right is being threatened or impaired, a
finding of irreparable injury is mandated.
78 Civil Rights
78k1759 Injunction
Balance of hardships favored preliminary in-
junction prohibiting Tennessee officials from enfor-
cing Tennessee's antirecognition laws against mar-
ried, same-sex couples who lived and were legally
married in other states before moving to Tennessee,
so as to void their marriages and render them unen-
forceable in Tennessee, where the antirecognition
laws were likely to be found unconstitutional, as vi-
olating couples' equal protection rights, and Ten-
nessee had no valid interest in enforcing an uncon-
stitutional policy. U.S.C.A. Const.Amend. 14;
West's T.C.A. Const. Art. 11, 18; West's T.C.A.
363113.
212 Injunction
tions in General
212k1041 Injury, Hardship, Harm, or Ef-
fect
212k1047 k. Injury or Inconvenience
to Defendant or Respondent. Most Cited Cases
No substantial harm can be shown in the en-
joinment of an unconstitutional policy.
78 Civil Rights
78k1759 Injunction
Public interest supported grant of preliminary
injunction prohibiting Tennessee officials from en-
forcing Tennessee's antirecognition laws against
married, same-sex couples who lived and were leg-
ally married in other states before moving to Ten-
nessee, so as to void their marriages and render
them unenforceable in Tennessee, although issuing
the injunction would temporarily stay enforcement
of democratically enacted laws, where the
antirecognition laws were likely unconstitutional
as violating the couples' equal protection rights.
U.S.C.A. Const.Amend. 14; West's T.C.A. Const.
Art. 11, 18; West's T.C.A. 363113.
212 Injunction
tions in General
212k1039 k. Public Interest Considera-
tions. Most Cited Cases
Ultimately, it is always in the public interest to
prevent the violation of a party's constitutional
rights, and, for purposes of assessing whether an in-
junction is appropriate, the public interest is pro-
moted by the robust enforcement of constitutional
rights.
West Codenotes
Validity Called into DoubtWest's T.C.A.
363113.Abby Rose Rubenfeld, Rubenfeld Law
Office, PC, John L. Farringer, IV, Phillip F. Cramer
, Scott Hickman, William L. Harbison, Sherrard &
Page 3
--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
Roe, Nashville, TN, ASAF ORR, Christopher F.
Stoll, Shannon P. Minter, San Francisco, CA,
Maureen T. Holland, Holland & Associates, PLLC,
Memphis, TN, Regina M. Lambert, Law Office of
Regina M. Lambert, Knoxville, TN, for Plaintiffs.
Martha A. Campbell, Kevin Gene Steiling, Ten-
nessee Attorney General's Office, Nashville, TN,
for Defendants.
MEMORANDUM
ALETA A. TRAUGER, District Judge.
*1 Before the court is the plaintiffs' Motion for
Preliminary Injunction (Docket No. 29), to which
the defendants filed a Response in opposition
(Docket No. 35) and the Family Action Council of
Tennessee (FACT) filed an amicus brief in op-
position (Docket No. 43), and the plaintiffs filed a
Reply (Docket No. 46) and several Notices of Fil-
ing of Supplementary Authority (Docket Nos. 48,
55, 56, and 58). For the reasons stated herein, the
motion will be granted.
OVERVIEW
The plaintiffs are three married, same-sex
couples who lived and were legally married in other
states before moving to Tennessee.
FN1
Tennessee
does not recognize their marriages for one reason
only: they do not reflect a union between one man
and one woman. See Tenn. Const. Art. XI, 18;
Tenn.Code Ann. 363113 (collectively, the
AntiRecognition Laws).
FN2
The plaintiffs
challenge the constitutionality of the
AntiRecognition Laws.
FN3
Pending a final de-
cision on the merits of their claims, the plaintiffs
seek a preliminary injunction that would prevent
the defendants from enforcing the
AntiRecognition Laws against them.
At the outset, given the sensitivity of the issues
presented, the court emphasizes the narrowness of
the decision it is issuing today.
First, the nature of a preliminary injunction
remedy is just thatpreliminary. It is not a final
judgment on the merits of a case. Instead, it prelim-
inarily enjoins a party (here, effectively, the State
of Tennessee) from engaging in a particular action
until the court can rule on the merits of the
plaintiffs' claims at a later stage, typically with the
benefit of more evidence and legal authority. In
making its decision, the court must decide, among
other things, whether the plaintiffs are likely to pre-
vail on the merits of their claims, not that they have
prevailed or that they necessarily will prevail on
their claims. In other words, the court's decision
today simply reflects its best projection, based on
the evidence and the existing state of the law, as to
whether the plaintiffs are likely to win their case.
Currently, all relevant federal authority indicates
that the plaintiffs in this case are indeed likely to
prevail on their claims that the AntiRecognition
Laws are unconstitutional. That said, by the time
that this court is asked to render a final judgment, it
may be that other federal courts will have reached a
different interpretation that favors the defendants'
position. By the same token, it may be that federal
courts will continue uniformly to strike down anti-
recognition laws, state same-sex marriage bans, and
other laws that discriminate based on sexual orient-
ation. The impact of future decisions, which are
forthcoming as the result of continuing litigation in
other federal trial and appellate courts across the
country, will inevitably influence the ultimate dis-
position of this case.
Second, the plaintiffs have not directly chal-
lenged Tennessee's refusal to permit same-sex mar-
riages from being consummated in Tennessee. In-
stead, the plaintiffs challenge only Tennessee's re-
fusal to recognize marriages legally consummated
by same-sex couples in other states, such as a same-
sex couple that weds in New York (a state that per-
mits same-sex marriage) before moving to Tenness-
ee.
*2 Third, even with respect to the
AntiRecognition Laws, the plaintiffs seek tempor-
ary relief only as to the six specific plaintiffs (three
couples) remaining in this lawsuit. They do not
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--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
seek class relief in their Complaint or in their re-
quest for a preliminary injunction.
As explained in this opinion, the plaintiffs have
persuaded the court to enjoin enforcement of the
AntiRecognition Laws against them, pending a fi-
nal decision on the merits. The court's order only
means that, at least for the time being, Tennessee
will not be able to enforce the AntiRecognition
Laws against six people (three same-sex couples)
until the court renders a final judgment in the case.
Thus, even after today, Tennessee's ban on the con-
summation of same-sex marriages within Tennessee
remains in place, and Tennessee may continue to
refuse to recognize same-sex marriages consum-
mated in other states, except as to the six plaintiffs
in this case. The court's opinion should not be con-
strued in any other way.
FN4
THE PLAINTIFFS
The plaintiffs in this case have filed unrebutted
affidavits that describe their personal backgrounds,
how they met their respective spouses, when and
why they moved to Tennessee, and the harm that
they have suffered, or may suffer, from Tennessee's
enforcement of the AntiRecognition Laws. The
court will summarize the circumstances of each
couple briefly.
I. Dr. Valeria Tanco and Dr. Sophia Jesty
Valeria Tanco and Sophia Jesty are both pro-
fessors at the University of Tennessee College of
Veterinary Medicine. They met in 2009 at the Col-
lege of Veterinary Medicine at Cornell University
in Ithaca, New York, fell in love in 2010, and leg-
ally married each other in New York on September
9, 2011. After spending a year living apart, they
sought to find work as professors in the same geo-
graphic area. When the University of Tennessee's
College of Veterinary Medicine offered positions to
both of them, they accepted the offers and began
residing together in Knoxville, Tennessee.
In addition to certain alleged injuries common
to all plaintiffs, Dr. Tanco and Dr. Jesty have sever-
al special concerns. First, they purchased a house
together, but, because Tennessee law may treat
them as strangers rather than as a married couple,
they are not assured of the same property protec-
tions in their home as a heterosexual married
couple. Second, the University of Tennessee health
insurance system will not permit them to combine
their respective individual health insurance plans
into a family plan, because UT's insurance plan in-
corporates the AntiRecognition Laws. Third, in
the summer of 2013, Dr. Tanco became pregnant
through artificial insemination, and her due date is
March 21, 2014.
FN5
Under the existing state of the
law in Tennessee, upon the birth of their child, Dr.
Jesty will not be recognized as the child's parent,
and many of the legal rights that would otherwise
attach to the birth of a child (artificially insemin-
ated or otherwise) will not apply to Dr. Jesty or to
the child. These include the child's right to Social
Security benefits as a surviving child if Dr. Jesty
should die, the right for Dr. Jesty to visit her child
at a hospital if Dr. Tanco is unable to give consent
to her presence at the time the baby is born, and the
right of Dr. Jesty to make medical decisions regard-
ing the medical care provided to their baby in the
event that Dr. Tanco is unable to make those de-
cisions. Fourth, and finally, they are concerned
about the environment in which their child will be
raised, fearing that Tennessee's refusal to recognize
her parents' marriage will stigmatize her, cause her
to believe that she and her family are entitled to
less dignity than her peers and their families, and
give her the impression that her parents' love and
their family unit is somehow less stable.
II. Sergeant Ijpe DeKoe & Mr. Thomas Kostura
*3 Ijpe DeKoe is a Sergeant First Class in the
United States Army Reserves. He resides and is sta-
tioned in Memphis, Tennessee. Thomas Kostura is
a graduate student at the Memphis College of Fine
Arts. In March 2011, Sgt. DeKoe began dating Mr.
Kostura, who was a New York resident at the time.
They fell in love that year. At some point before
August 2011, Sgt. DeKoe was transferred to Fort
Dix in New Jersey in preparation for deployment to
Afghanistan. On August 4, 2011, before Sgt.
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--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
DeKoe was deployed, he and Mr. Kostura legally
married in New York. In May 2012, after Sgt.
DeKoe returned from his deployment to Afgh-
anistan, he and Mr. Kostura moved to Memphis,
where was DeKoe was again stationed.
On September 3, 2013, the United States De-
partment of Defense began recognizing Sgt. DeKoe
and Mr. Kostura's marriage. Although the military
recognizes Sgt. DeKoe's marriage to Mr. Kostura,
Tennessee does not. Sgt. DeKoe avers that, [a]s
someone who has dedicated my career and risked
my life to protect American values of freedom,
liberty, and equality, it is particularly painful to re-
turn home after serving in Afghanistan only to have
my citizenship diminished by Tennessee's refusal to
recognize our marriage.
III. Johno Espejo & Matthew Mansell
Johno Espejo met Matthew Mansell in approx-
imately 1995 in San Francisco, California. They
began dating and have been in a committed rela-
tionship since that time. While living in Alameda,
California, they decided to start a family together
by adopting children from the Alameda foster care
system. In December 2007, the foster agency
placed a thirteen-month old boy in their home. Ap-
proximately five months later, in 2008, the agency
placed a newborn girl in their home. On August 5,
2008, Mr. Espejo and Mr. Mansell legally married
each other in California. On September 25, 2009,
Mr. Espejo and Mr. Mansell legally adopted the
two foster children. Mr. Espejo gave up his job as a
forklift driver to be a stay-at-home parent for their
children.
Approximately four years ago, Mr. Mansell
began working at a large international law firm in
San Francisco, California, conducting conflict-
of-interest checks. In 2012, the law firm announced
that it would be centralizing and relocating its ad-
ministrative services, including Mr. Mansell's de-
partment, to a new office located in Nashville, Ten-
nessee. In May 2012, Mr. Espejo and Mr. Mansell
moved to Franklin, Tennessee, so that Mansell
could continue working for the law firm. Mr. Es-
pejo took a part-time job at his local YMCA, which
allowed him to balance his duties as a stay-at-home
parent with his job.
Similar to the fears that Dr. Tanco and Dr.
Jesty harbor for the child they are expecting, Mr.
Espejo and Mr. Mansell are concerned about the
impact of Tennessee's AntiRecognition laws on
their children.
IV. Common Statements
The plaintiffs' declarations contain statements
about their experiences, hopes, and fears. Each
couple married for several reasons, including their
commitment to love and support one another, to
demonstrate their mutual commitment to their fam-
ily, friends, and colleagues, and to show others that
they should be treated as a family. They also mar-
ried to make a legally binding mutual commitment,
to join their resources together in a legal unit, and
to be treated by others as a legal family unit, rather
than as legally unrelated individuals. Finally, each
couple married so that they could access the legal
responsibilities of marriage to protect themselves
and their families, just as heterosexual couples do.
*4 The plaintiffs agree that they have been
warmly welcomed by many Tennesseans, including
their neighbors and colleagues. However, each
couple is aware that Tennessee does not afford
them the same rights as opposite-sex married
couples and that the state government does not treat
their relationship with the same dignity and respect
as opposite-sex married couples. Because Tenness-
ee law does not extend them certain rights of mar-
riage, including certain protections in times of
crisis, emergency, or death, they are denied the se-
curity and peace of mind that those protections
provide to other families. Although they acknow-
ledge that they can take additional steps to reduce
some of these uncertaintiessuch as executing
powers of attorney, wills, and other probate docu-
mentsthey aver that these steps would be costly
and time-consuming, that opposite-sex married
couples would not need to take these measures, and
that they would result in only minimal legal protec-
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--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
tions relative to the full panoply of rights that other-
wise attach to state-sanctioned marriage.
The couples have also described how Tenness-
ee's refusal to recognize their marriages causes
them dignitary and reputational harm. When they
interact with Tennessee officials or fill out official
forms to identify themselves as married, they brace
themselves for degrading experiences that often oc-
cur because of Tennessee's refusal to recognize
their marriages. They regard these experiences as
insulting to their personal dignity, insulting to their
family's dignity, and demeaning to their relation-
ships.
The plaintiffs also state that, by treating their
marriages as if they did not exist, the state of Ten-
nessee encourages private citizens to deny their
marriages and exposes them to discrimination in
their daily lives.
Finally, the plaintiffs aver as follows:
Every day that Tennessee refuses to respect our
marriage is a day that our family must suffer the
indignity, stress, and stigma of not knowing
whether or when our marriage will be recognized.
Unlike opposite-sex couples who have the secur-
ity of knowing that their marriage will be univer-
sally respected by the state and by private actors,
Tennessee's constitutional and statutory denial of
recognition to our marriage means that whatever
recognition our marriage may receive is only by
the forbearance and good graces of private actors.
V. This Lawsuit and the Preliminary Injunction
Motion
On October 23, 2013, the plaintiffs filed this
lawsuit, which challenges the constitutionality of
the AntiRecognition Laws.
On November 29, 2013, the plaintiffs moved to
enjoin enforcement of the AntiRecognition Laws
against them, arguing that the AntiRecognition
Laws violate their rights under the United States
Constitution to due process, interstate travel, and
equal protection.
FN6
The government opposes the
motion, contending that the claims are untimely,
that the plaintiffs are not likely to succeed on the
merits of their claims, that the plaintiffs will suffer
no irreparable harm in the absence of a preliminary
injunction, that the balance of harms favors the
government, and that the public interest would be
best served by denying the motion.
FN7
PRELIMINARY INJUNCTION STANDARD
*5 [1][2] Under Fed.R.Civ.P. 65, the court may
issue a preliminary injunction under appropriate
circumstances. In assessing whether an injunction is
appropriate, the court applies the following stand-
ard:
A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the mer-
its, that he is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance
of the equities tips in his favor, and that an in-
junction is in the public interest.
Obama for Am. v. Husted, 697 F.3d 423, 428
(6th Cir.2012) (citing Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172
L.Ed.2d 249 (2008)). These four considerations
are factors to be balanced and not prerequisites
that must be satisfied. Nat'l Viatical, Inc. v. Uni-
versal Settlements Int'l, Inc., 716 F.3d 952 (6th
Cir.2013) (citing Am. Imaging Servs., Inc. v.
EaglePicher Indus., Inc., 963 F.2d 855, 859 (6th
Cir.1992)); Performance Unlimited v. Questar
Pubs., Inc., 52 F.3d 1373, 1381 (6th Cir.1995).
ANALYSIS
I. Likelihood of Success on the Merits
A. Statute of Limitations
[3] The parties agree that Tennessee's one-year
statute of limitations governs the plaintiffs' claims.
See Tenn.Code Ann. 283104(a)(3); Hughes v.
Vanderbilt Univ., 215 F.3d 543, 547 (6th Cir.2000).
The defendants argue that the one-year statute of
limitations bars the plaintiffs' claims.
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--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
[4][5][6] The continued enforcement of an un-
constitutional statute cannot be insulated by the
statute of limitations. Kuhnle Bros., Inc. v. Cnty.
of Geauga, 103 F.3d 516, 522 (6th Cir.1997). A
law that works an ongoing violation of constitution-
al rights does not become immunized from legal
challenge for all time merely because no one chal-
lenges it within the applicable state statute of lim-
itations. Id. Where, as here, a law impinges each
day on a plaintiff's constitutional rights, a new lim-
itations period begins to run each day as to that
day's damage. Id. Here, the plaintiffs have each al-
leged various ongoing harms resulting from Ten-
nessee's refusal to recognize their marriages, in-
cluding dignitary harms and reputational harms, as
well as daily concerns related to parentage, medical
care, insurance, property ownership, and the like.
These injuries occurred within a year of filing suit
and, for the reasons explained in the next section,
likely reflect ongoing deprivations of their constitu-
tional rights. Therefore, the court finds that the stat-
ute of limitations does not bar the plaintiffs' claims.
B. Alleged Deprivation of Constitutional Rights
[7] The parties vigorously dispute whether
Tennessee's AntiRecognition Laws violate the
plaintiffs' constitutional rights. The plaintiffs, the
defendants, and FACT (as amicus curiae ) have
thoroughly and cogently briefed their respective po-
sitions concerning the complex, sensitive, and im-
portant legal issues presented by this case.
In United States v. Windsor, U.S. ,
133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), the Su-
preme Court struck down a provision of the federal
Defense of Marriage Act and held that the federal
government cannot refuse to recognize valid mar-
riages in states that recognize same-sex marriage.
Since the Supreme Court issued Windsor, numerous
federal courts, including courts within the Sixth
Circuit, have addressed the impact of Windsor on
state laws relating to same-sex couples and sexual
orientation. These courts have uniformly rejected a
narrow reading of Windsorsuch as that advanced
by the defendants hereand have found that Wind-
sor protects the rights of same-sex couples in vari-
ous contexts, notwithstanding earlier Supreme
Court and circuit court precedent that arguably sug-
gested otherwise.
FN8
These cases include decisions
both inside and outside of this circuit, finding that
similar state anti-recognition laws are or likely are
unconstitutional ( Bourke, Obergefell I and II, and
De Leon), decisions granting a preliminary injunc-
tion under similar circumstances ( De Leon, Bostic
), and decisions finding that same-sex marriage
bans are unconstitutional in the first place ( De Le-
on, Kitchen, Bostic, and Lee ).
FN9
In these thor-
ough and well-reasoned cases, courts have found
that same-sex marriage bans and/or anti-recognition
laws are unconstitutional because they violate the
Equal Protection Clause and/or the Due Process
Clause, even under rational basis review, which
is the least demanding form of constitutional re-
view.
*6 In light of this rising tide of persuasive post-
Windsor federal caselaw, it is no leap to conclude
that the plaintiffs here are likely to succeed in their
challenge to Tennessee's AntiRecognition Laws.
With respect to the plaintiffs' Equal Protection
Clause challenge, the defendants offer arguments
that other federal courts have already considered
and have consistently rejected, such as the argu-
ment that notions of federalism permit Tennessee to
discriminate against same-sex marriages consum-
mated in other states, that Windsor does not bind
the states the same way that it binds the federal
government, and that AntiRecognition Laws have
a rational basis because they further a state's in-
terest in procreation, which is essentially the only
rational basis advanced by the defendants here.
FN10
In particular, at this stage, the court finds Judge
Heyburn's equal protection analysis in Bourke,
which involved an analogous Kentucky anti-
recognition law, to be especially persuasive with re-
spect to the plaintiffs' likelihood of success on the
merits of their Equal Protection Clause challenge in
this case. There, the court analyzed the lineage of
Page 8
--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
Supreme Court and Sixth Circuit precedent on the
issue of marriage generally and same-sex marriage
specifically, the animating principles in Windsor,
and the relationship between discriminatory state
marriage laws and the United States Constitution's
guarantees, to which any state law is subordinate.
See F.Supp.2d at , 2014 WL
556729, at *312. Although that court strongly sus-
pected that discrimination based on sexual orienta-
tion might warrant heightened scrutiny, it neverthe-
less subjected the anti-recognition law to a rational
basis test under the Equal Protection Clause, found
that none of the offered justifications satisfied ra-
tional basis review, and held that the anti-
recognition law was unconstitutional. Id. In a final
section, the court explained how its decision was
consistent with constitutional values and require-
ments, was respectful of individual faith, was con-
sistent with the public's desire to maintain the sanc-
tity of marriage, fostered equality under the law,
protected minority rights, and was the natural result
of a long but steady progression in Supreme Court
jurisprudence from Loving v. Virginia, 388 U.S. 1,
87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) through
Windsor in 2013. Id. at , 2014 WL
556729 at *912.
The anti-recognition laws at issue here and in
other cases are substantially similar and are subject
to the same constitutional framework. The defend-
ants have not persuaded the court that Tennessee's
AntiRecognition Laws will likely suffer a differ-
ent fate than the anti-recognition laws struck down
and/or enjoined in Bourke, Obergefell, and De Le-
on.
Accordingly, the court finds that the plaintiffs
are likely to succeed on the merits of their equal
protection challenge, even under a rational basis
standard of review. For this reason, the court need
not address at this stage whether sexual orientation
discrimination merits a heightened standard of con-
stitutional review or whether the plaintiffs are
likely to prevail on their additional due process and
right to travel challenges.
II. Remaining Rule 65 Factors
A. Irreparable Harm
*7 [8][9] The loss of a constitutional right,
even for a minimal period[ ] of time, unquestion-
ably constitutes irreparable injury. Elrod v. Burns,
427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547
(1976). Thus, when reviewing a motion for pre-
liminary injunction, if it is found that a constitu-
tional right is being threatened or impaired, a find-
ing of irreparable injury is mandated. Bonnell v.
Lorenzo, 241 F.3d 800, 809 (6th Cir.2001).
FN11
Because the court has found that the plaintiffs are
likely to prevail on their claims that the
AntiRecognition Laws are unconstitutional, it ax-
iomatic that the continued enforcement of those
laws will cause them to suffer irreparable harm.
Moreover, the evidence shows that the
plaintiffs are suffering dignitary and practical
harms that cannot be resolved through monetary re-
lief. The state's refusal to recognize the plaintiffs'
marriages de-legitimizes their relationships, de-
grades them in their interactions with the state,
causes them to suffer public indignity, and invites
public and private discrimination and stigmatiza-
tion. For example, Sergeant DeKoe, who served
nearly a year abroad in defense of the United
States, is considered married while on military
property in Memphis but unmarried off of it, which
he understandably finds painful, demeaning, and di-
minishing. These are harms against which the Con-
stitution protects. See Windsor, 133 S.Ct. at
269596.
Also, relative to opposite-sex couples, the
plaintiffs are deprived of some state law protec-
tions, or at least the certainty that the same rights
afforded to heterosexual marriages will be afforded
to them. For example, they have no assurance that
Tennessee will recognize their ownership of a home
as tenants by the entirety, rather than as strangers
with divisible interests. To the extent that plaintiffs
could secure some of these rights by contract, they
will be unfairly forced to engage in time-consuming
Page 9
--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
and expensive measures to secure them, and even
then only with respect to a subset of marriage
rights.
For Dr. Jesty and Dr. Tanco, and for Mr. Es-
pejo and Mr. Mansell, there is also an imminent
risk of potential harm to their children during their
developing years from the stigmatization and den-
igration of their family relationship. The circum-
stances of Dr. Jesty and Dr. Tanco are particularly
compelling: their baby is due any day, and any
complications or medical emergencies associated
with the baby's birthparticularly one incapacitat-
ing Dr. Tancomight require Dr. Jesty to make
medical decisions for Dr. Tanco or their child. Fur-
thermore, if Dr. Jesty were to die, it appears that
her child would not be entitled to Social Security
benefits as a surviving child. Finally, Dr. Tanco
reasonably fears that Dr. Jesty will not be permitted
to see the baby in the hospital if Dr. Tanco is other-
wise unable to give consent.
FN12
For all of these reasons, the court finds that the
plaintiffs have shown that they will suffer irrepar-
able harm from enforcement of the
AntiRecognition Laws. See Obergefell I, 2013 WL
3814262, at *67; De Leon, F.Supp.2d at
, 2014 WL 715741, at *2425.
B. Balance of the Equities
*8 [10][11] [N]o substantial harm can be
shown in the enjoinment of an unconstitutional
policy. Chabad of S. Ohio & Congregation Lub-
avitch v. City of Cincinnati, 363 F.3d 427, 436 (6th
Cir.2004); Deja Vu of Nashville, Inc. v. Metro.
Gov't of Nashville & Davidson Cnty., Tenn., 274
F.3d 377, 400 (6th Cir.2001). Here, because the
court has found that the AntiRecognition Laws are
likely to be found unconstitutional, the balance of
the equities necessarily favors the plaintiffs. Ten-
nessee has no valid interest in enforcing an uncon-
stitutional policy. Furthermore, the administrative
burden on Tennessee from preliminarily recogniz-
ing the marriages of the three couples in this case
would be negligible. Therefore, the court finds that
the balance of the equities favors issuance of a pre-
liminary injunction.
FN13
C. Public Interest
[12] The defendants argue that granting an in-
junction would override by judicial fiat the results
of Tennessee's valid democratic process establish-
ing the public policy of this state, cause harm to
Tennessee in the form of an affront to its sover-
eignty, and create the impression that Tennessee's
public policy is subservient to that of other States.
(Defs.' Mem. at pp. 2526.) As the defendants point
out, Tennessee overwhelmingly passed the constitu-
tional amendment at issue with approximately 80%
support in 2006.
[13] Although the defendants are correct that
issuing an injunction will temporarily stay the en-
forcement of democratically enacted laws, that is
essentially the case with any federal decision that
overturns or stays enforcement of a state law that
violates the federal Constitution. Ultimately, [i]t is
always in the public interest to prevent the violation
of a party's constitutional rights. G & V Lounge,
Inc. v. Mich. Liquor Control Comm'n, 23 F.3d
1071, 1079 (6th Cir.1994). Thus, [t]he public in-
terest is promoted by the robust enforcement of
constitutional rights. Am. Freedom Def. Initiative
v. Suburban Mobility Authority for Reg'l Transp.,
698 F.3d 885, 896 (6th Cir.2012); Planned Parent-
hood Ass'n of Cincinnati, Inc. v. City of Cincinnati,
822 F.2d 1390, 1400 (6th Cir.1987) ([T]he public
is certainly interested in the prevention of enforce-
ment of ordinances which may be unconstitution-
al.); Chabad, 363 F.3d at 436 ([T]he public in-
terest is served by preventing the violation of con-
stitutional rights.); see also Obergefell I, 2013 WL
3814262, at *7; De Leon, F.Supp.2d at
, 2014 WL 715741, at *2627. Applying that
principle here, the court finds that issuing an in-
junction would serve the public interest because the
AntiRecognition Laws are likely unconstitutional.
III. Summary
In determining whether a preliminary injunc-
tion is warranted, the court's obligation is to bal-
ance the four Rule 65 factors. Here, all four factors
Page 10
--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
favor the plaintiffs, and little balancing need be
done. Therefore, the court will issue a preliminary
injunction that bars enforcement of the
AntiRecognition Laws against the plaintiffs. The
injunction will remain in force until the court
renders judgment on the merits of the plaintiffs'
claims at a later stage in this case. Again, the court
emphasizes the narrow nature of its holding today:
the court's order temporarily enjoins enforcement of
the AntiRecognition Laws only as to the six
plaintiffs in this case. The court is not directly hold-
ing that Tennessee's AntiRecognition Laws are ne-
cessarily unconstitutional or that Tennessee's ban
on the consummation of same-sex marriages within
Tennessee is unconstitutional.
*9 At some point in the future, likely with the
benefit of additional precedent from circuit courts
and, perhaps, the Supreme Court, the court will be
asked to make a final ruling on the plaintiffs'
claims. At this point, all signs indicate that, in the
eyes of the United States Constitution, the
plaintiffs' marriages will be placed on an equal
footing with those of heterosexual couples and that
proscriptions against same-sex marriage will soon
become a footnote in the annals of American his-
tory.
CONCLUSION
For the reasons stated herein, the plaintiffs'
Motion for Preliminary Injunction will be granted,
and the court will issue an injunction against the
defendants, prohibiting them from enforcing the
AntiRecognition Laws against the six plaintiffs in
this case.
An appropriate order will enter.
FN1. This lawsuit was originally filed by
four same-sex couples. On March 10,
2014, the parties stipulated to the dismissal
of one of the couples (Kellie Miller and
Vanessa DeVillez) and defendant Bill Gib-
bons, Commissioner of the Department of
Safety and Homeland Security. (Docket
No. 59.) The remaining plaintiffs are Va-
leria Tanco and Sophie Jesty, Ijpe DeKoe
and Thomas Kostura, and Johno Espejo
and Matthew Mansell. The remaining de-
fendants are Governor Bill Haslam, Com-
missioner of the Department of Finance
and Administration Larry Martin, and At-
torney General Robert Cooper.
FN2. Tenn.Code Ann. 363113
provides that, among other things, [i]f an-
other state or foreign jurisdiction issues a
license for persons to marry, which mar-
riages are prohibited in this state, any such
marriage shall be void and unenforceable
in this state. Id. at 113(d). The statute fur-
ther provides that it is [ ] the public policy
of this state that the historical institution
and legal contract solemnizing the relation-
ship of (1) man and one (1) woman shall
be the only legally recognized marital con-
tract in this state in order to provide the
unique and exclusive rights and privileges
to marriage. Id. at 113(a). The Tenness-
ee Constitution, which was amended in
2006 to incorporate the so-called
Tennessee Marriage Protection Amend-
ment following a popular referendum,
contains essentially the same provisions.
FN3. To the extent that the court refer-
ences laws in other states that similarly
discriminate against same-sex marriages
consummated in another state that recog-
nizes same-sex marriage, the court will
refer to those laws without capitalization
as anti-recognition laws for ease of ref-
erence.
FN4. In De Leon v. Perry, F.Supp.2d
, 2014 WL 715741 (W.D.Tex. Feb.
26, 2014), the parties disputed whether the
district's injunction against enforcement of
a similar Texas anti-recognition law ap-
plied only to the plaintiffs in that case, as
opposed to all similarly situated plaintiffs
statewide. In a footnote, the court found
Page 11
--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
that its preliminary injunction would apply
statewide. Id. at n. 7, 2014 WL
715741 at *27 n. 7. Here, the plaintiffs
have not argued that their injunction
should or would apply statewide; to the
contrary, they have argued that the narrow-
ness of the requested injunction justifies its
issuance (see Docket No. 30 at p. 39 (Any
administrative burden on the State from re-
cognizing Plaintiffs' four additional valid
marriages would be negligible.)), and
their request for relief is limited to the
plaintiffs in this case (see id. at p. 40
(Plaintiffs respectfully request that the
Court issue a preliminary injunction bar-
ring Defendants and those under their su-
pervision from enforcing the
AntiRecognition Laws against the four
plaintiff couples in this case while this ac-
tion is pending.) (emphasis added)). Be-
cause the plaintiffs have limited their re-
quest for preliminary injunctive relief in
this fashion, the court expresses no opinion
concerning the potential application of its
ruling statewide, if these or any other po-
tential plaintiffs were to request broader
relief in the future.
FN5. In support of the plaintiffs' Motion to
Ascertain Status (Docket No. 61), the
plaintiffs filed a supplemental Declaration
of Valeria Tanco (Docket No. 62), which,
among other things, stated Dr. Tanco's due
date.
FN6. In support of their motion, the
plaintiffs filed a Memorandum of Law
(Docket No. 30), an Appendix of cases
(Docket No. 31), and a Notice containing
separate declarations from each plaintiff
(Docket No. 32).
FN7. In support of their brief in opposi-
tion, the defendants filed an Appendix of
legal authority (Docket No. 36) and a No-
tice containing the Declaration of Mark
Goins, State Coordinator of Elections
(Docket No. 37, Attachment No. 1), and
the Affidavit of Connie Walden (id., At-
tachment No. 2). FACT filed an amicus
brief in support of the defendants' position.
(Docket No. 43.)
FN8. See generally Obergefell v. Kasich,
2013 WL 3814262 (S.D.Ohio July 22,
2013) ( Obergefell I ) (preliminarily en-
joining enforcement of Ohio anti-
recognition law); Kitchen v. Herbert, 961
F.Supp.2d 1181 (D.Utah 2013) (Utah ban
on same-sex marriage unconstitutional);
Obergefell v. Wymyslo, 962 F.Supp.2d 968
(S.D.Ohio 2013) ( Obergefell II ) (Ohio
anti-recognition law unconstitutional);
Bishop v. United States, 962 F.Supp.2d
1252 (N.D.Okla.2014) (Oklahoma ban on
same-sex marriage unconstitutional);
Bourke v. Beshear, F.Supp.2d ,
2014 WL 556729 (W.D.Ky. Feb. 12, 2014)
(finding that Kentucky anti-recognition
law was unconstitutional); Bostic v.
Rainey, 970 F.Supp.2d 456 (E.D.Va.2014)
(Virginia ban on same-sex marriage uncon-
stitutional); Lee v. Orr, 2014 WL 683680
(N.D.Ill. Feb. 21, 2014) (Illinois ban on
same-sex marriage unconstitutional as ap-
plied to a particular county); De Leon,
F.Supp.2d , 2014 WL 715741
(issuing preliminary injunction barring
Texas from enforcing prohibition on re-
cognition of out-of-state same-sex mar-
riages).
FN9. Notably, Oregon, Virginia, and
Nevada have also declined to defend or
have abandoned their defense of same-sex
marriage bans in those states, on the basis
that the laws are unconstitutional. See, e.g.
Geiger et al. v. Kitzhaber, et al., Case No.
6:13cv018340MC (D.Or.), Geiger
Docket No. 47 at 28 (State Defendants
will not defend the Oregon ban on same-
Page 12
--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
sex marriage in this litigation. Rather, they
will take the position in their summary
judgment briefing that the ban cannot with-
stand a federal constitutional challenge un-
der any standard of review.); Bostic, 970
F.Supp.2d at , 2014 WL 561978, at *2
(On January 23, 2014, Defendant Rainey,
in conjunction with the Office of the Attor-
ney General, submitted a formal change in
position, and relinquished her prior de-
fense of Virginia's Marriage Laws.); Sev-
cik et al. v. Sandoval et al., No. 1217668
(9th Cir.) (pending appeal), Sevcik Appel-
late Docket No. 171 (defendants withdraw-
ing their brief in support of appeal, be-
cause intervening caselaw indicated that
discrimination against same-sex couples
is unconstitutional). In a recent case, the
Ninth Circuit also found that classifica-
tions based on sexual orientation require
heightened scrutiny. See SmithKline
Beecham Corp. v. Abbott Labs., 740 F.3d
471, 48384 (9th Cir.2014). Numerous
state courts have also found that state bans
on same-sex marriage are or likely are un-
constitutional. See, e.g., Garden State
Equality v. Dow, 216 N.J. 314, 79 A.3d
1036 (2013) (in light of Windsor, refusing
to stay trial court order requiring New Jer-
sey officials to administer marriage laws
equally for same-sex couples).
FN10. (See Docket No. 35, Defs. Mem., at
pp. 1417.)
FN11. This rule has been applied in a vari-
ety of constitutional contexts, including
equal protection challenges premised on
same-sex discrimination. See Bassett v.
Snyder, 951 F.Supp.2d 939
(E.D.Mich.2013) (enjoining Michigan law
prohibiting public employers from provid-
ing medical and other fringe benefits to
any person co-habitating with a public em-
ployee unless that person was legally mar-
ried to the employee, was a legal depend-
ent, or was otherwise ineligible to inherit
under the state's intestacy laws); Oberge-
fell I, 2013 WL 3814262, at *6 and *6 n. 1
(collecting cases); De Leon, F.Supp.2d
at , 2014 WL 715741, at *25; see also
Elrod, 427 U.S. at 373, 96 S.Ct. 2673
(First Amendment); Ramirez v. Webb, 835
F.2d 1153, 1158 (6th Cir.1987) (Fourth
Amendment); Deerfield Med. Ctr. v. City
of Deerfield Beach, 661 F.2d 328, 338 (5th
Cir.1981) (fundamental right to privacy
under Fourteenth and/or Ninth Amend-
ment) (cited approvingly in Bonnell, 241
F.3d at 809).
FN12. The state has taken the position that
the plaintiffs' fears, including those of Dr.
Tanco and Dr. Jesty with respect to the up-
coming birth of their baby and their rights
in their home should one of them die, are
speculative, conjectural, and
hypothetical. But the court need not
wait, for instance, for Dr. Tanco to die in
childbirth to conclude that she and her
spouse are suffering or will suffer irrepar-
able injury from enforcement of the
AntiRecognition Laws.
FN13. At least two federal courts have
similarly found that, where laws discrimin-
ating against same-sex marriages are likely
to be found unconstitutional, the balance of
the equities unequivocally favors the
plaintiffs. As explained in Obergefell I:
No one beyond the plaintiffs themselves
will be affected by such a limited order
at all. Without an injunction, however,
the harm to Plaintiffs is severe. Plaintiffs
are not currently accorded the same dig-
nity and recognition as similarly situated
opposite-sex couples. Moreover, upon
Mr. Arthur's death, Plaintiffs' legally
valid marriage will be incorrectly recor-
ded in Ohio as not existing. Balanced
Page 13
--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
against this severe and irreparable harm
to Plaintiffs is the truth that there is no
evidence in the record that the issuance
of a preliminary injunction would cause
substantial harm to the public.
2013 WL 3814262, at *7; see also De
Leon, F.Supp.2d at ,
2014 WL 715741, at *2526 (finding
that injury to plaintiff outweighed dam-
age to Texas from enjoining enforcement
of same-sex marriage ban and anti-
recognition law, and stating that an in-
dividual's federal constitutional rights
are not submitted to state vote and may
not depend on the outcome of state legis-
lation or a state constitution).
M.D.Tenn.,2014.
Tanco v. Haslam
--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
END OF DOCUMENT
Page 14
--- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.)
(Cite as: 2014 WL 997525 (M.D.Tenn.))
For Opinion See 133 S.Ct. 2675 , 133 S.Ct. 1521 ,
133 S.Ct. 1515 , 133 S.Ct. 815 , 133 S.Ct. 814 , 133
S.Ct. 786
U.S.,2013.
Supreme Court of the United States.
UNITED STATES OF AMERICA, Petitioner,
v.
Edith Schlain WINDSOR
andBIPARTISAN LEGAL ADVISORY GROUP
OF THE UNITED STATES HOUSE OF REPRES-
ENTATIVES, Respondents.
No. 12-307.
January 22, 2013.
On Writ of Certiorari to the United States Court of
Appeals for the Second Circuit
Brief on the Merits for Respondent the Bipartisan
Legal Advisory Group of the U.S. House of Repres-
entatives
Kerry W. Kircher
General Counsel
William Pittard
Deputy General Counsel
Christine Davenport
Senior Assistant Counsel
Todd B. Tatelman
Mary Beth Walker
Eleni M. Roumel
Assistant Counsels
Office of General Counsel
United States House of Representatives
219 Cannon House Office Bldg.
Washington, D.C. 20515
(202) 225-9700
Paul D. Clement
Counsel of Record
H. Christopher Bartolomucci
Nicholas J. Nelson
Michael H. McGinley
Bancroft PLLC
1919 M Street, N.W.
Suite 470
Washington, D.C. 20036
(202) 234-0090
pclement@bancroftpllc.com
Counsel for Respondent
The Bipartisan Legal Advisory
Group of the United States
House of Representatives
*i QUESTION PRESENTED
Whether Section 3 of the Defense of Marriage Act,
1 U.S.C. 7, violates the equal protection compon-
ent of the Due Process Clause of the Fifth Amend-
ment.
*II PARTIES TO THE PROCEEDING
The Bipartisan Legal Advisory Group of the United
States House of Representatives intervened as a de-
fendant in the district court and was an appellant
and appellee in the court of appeals.
[FN*]
FN* The United States House of Repres-
entatives has articulated its institutional
position in litigation matters through a
five-member bipartisan leadership group
since at least the early 1980's (although the
formulation of the group's name has
changed somewhat over time). Since 1993,
the House rules have formally acknow-
ledged and referred to the Bipartisan Legal
Advisory Group, as such, in connection
with its function of providing direction to
the Office of the General Counsel. See,
e.g., Rule I.11, Rules of the House of Rep-
resentatives, 103rd Cong. (1993); Rule
II.8, Rules of the House of Representat-
ives, 112th Cong. (2011). While the group
seeks consensus whenever possible, it, like
the institution it represents, functions on a
majoritarian basis when consensus cannot
2013 WL 267026 (U.S.) Page 1
be achieved. The Bipartisan Legal Advis-
ory Group currently is comprised of the
Honorable John A. Boehner, Speaker of
the House, the Honorable Eric Cantor, Ma-
jority Leader, the Honorable Kevin Mc-
Carthy, Majority Whip, the Honorable
Nancy Pelosi, Democratic Leader, and the
Honorable Steny H. Hoyer, Democratic
Whip. The Democratic Leader and the
Democratic Whip have declined to support
the position taken by the Group on the
merits of DOMA Section 3's constitution-
ality in this and other cases.
Edith Schlain Windsor was the plaintiff in the dis-
trict court and an appellee in the court of appeals.
The United States of America was a defendant in
the district court and an appellant and appellee in
the court of appeals.
West Headnotes
253 Marriage
Unions
Marriage 253 54(2)
253 Marriage
253k54 Effect of Informal or Invalid Marriage
or Union
253k54(2) k. Same-sex and other non-
traditional union. Most Cited Cases
Does Section 3 of the Defense of Marriage Act
(DOMA), 1 U.S.C.A. 7, which defines marriage
under federal law as the legal union between one
man and one woman as husband and wife, thereby
excluding same-sex couples, violate the equal pro-
tection component of the Due Process Clause of the
Fifth Amendment? U.S.C.A. Const.Amend. 5.
*iii TABLE OF CONTENTS
QUESTION PRESENTED ... i
PARTIES TO THE PROCEEDING ... ii
TABLE OF AUTHORITIES ... vi
OPINIONS BELOW ... 1
JURISDICTION ... 1
CONSTITUTIONAL AND STATUTORY PROVI-
SIONS INVOLVED ... 1
STATEMENT OF THE CASE ... 2
A. The Defense of Marriage Act ... 2
B. The Justice Department Stops Defending DOMA
and Starts Attacking It ... 12
C. Ms. Windsor's Challenge to DOMA ... 14
SUMMARY OF THE ARGUMENT ... 19
ARGUMENT ... 22
I. Rational Basis Review Applies To DOMA ... 24
II. Multiple Rational Bases Support DOMA And Its
Decision To Retain The Traditional Definition Of
Marriage For Federal-Law Purposes ... 28
A. DOMA Rationally Preserves Each Sovereign's
Ability to Define Marriage for Itself at a Time
When States Are Beginning to Experiment with the
Traditional Definition ... 30
*iv B. DOMA Ensures National Uniformity in Eli-
2013 WL 267026 (U.S.) Page 2
gibility for Federal Benefits and Programs Based on
Marital Status ... 33
C. DOMA Preserves Past Legislative Judgments,
Conserves Financial Resources, and Avoids Uncer-
tain and Unpredictable Effects on the Federal Fisc
... 37
D. Congress Rationally Proceeded with Caution
When Faced with the Unknown Consequences of
an Unprecedented Redefinition of Marriage, a
Foundational Social Institution, by a Minority of
States ... 41
E. The Federal Government Could Rationally Re-
tain the Traditional Definition for the Same Reas-
ons States Can Rationally Retain that Definition ...
43
1. Providing a Stable Structure to Raise Uninten-
ded and Unplanned Offspring ... 44
2. Encouraging the Rearing of Children by Their
Biological Parents ... 47
3. Promoting Childrearing by Both a Mother and a
Father ... 48
III. The Longstanding List Of Suspect And Quasi-
Suspect Classes Should Not Be Expanded To In-
clude Sexual Orientation ... 49
*v A. Gays and Lesbians Are Far from Politically
Powerless ... 51
B. Whether a Married Couple Is of the Opposite
Sex Is Relevant to the Government's Interests in
Recognizing Marriage ... 54
C. Sexual Orientation Is Not an Immutable Char-
acteristic ... 54
D. The Histories of Discrimination Based on Race,
Ethnicity, Sex, and Legitimacy Are Different ... 56
CONCLUSION ... 59
STATUTORY APPENDIX
U.S. Const. amend. V ... 1a
Defense of Marriage Act, 3, 1 U.S.C. 7 ... 2a
Defense of Marriage Act, 2, 28 U.S.C. 1738C ...
3a
*vi TABLE OF AUTHORITIES
Cases
Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal.
1980) ... 5, 38
Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)
... 5
Armour v. City of Indianapolis, 132 S. Ct. 2073
(2012) ... 29
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ... 2
Baker v. Nelson, 409 U.S. 810 (1972) ... 16, 25
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989)
... 13, 51, 55
Bowen v. Owens, 476 U.S. 340 (1986) ... 41
Bowers v. Hardwick, 478 U.S. 186 (1986) ... 27
Citizens for Equal Prot. v. Bruning, 455 F.3d 859
(8th Cir. 2006) ... 13, 46, 54
City of Cleburne, Tex. v. Cleburne Living Ctr., 473
U.S. 432 (1985) ... passim
City of Dallas v. Stanglin, 490 U.S. 19 (1989) ... 29
Clark v. Jeter, 486 U.S. 456 (1988) ... 25
Conaway v. Deane, 932 A.2d 571 (Md. 2007) ... 46
*vii Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ...
13
Dandridge v. Williams, 397 U.S. 471 (1970) ... 41
Davis v. Prison Health Servs., 679 F.3d 433 (6th
2013 WL 267026 (U.S.) Page 3
Cir. 2012) ... 13
Dean v. District of Columbia, 653 A.2d 307 (D.C.
1995) ... 5
FCC v. Beach Commc'ns, Inc., 508 U.S. 307 (1993)
... 28, 29, 30, 49
Frontiero v. Richardson, 411 U.S. 677 (1973) ... 56
Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009) ...
14, 24
Helvering v. Davis, 301 U.S. 619 (1937) ... 36
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ...
2, 46
High Tech Gays v. Def. Indus. Sec. Clearance Of-
fice, 895 F.2d 563 (9th Cir. 1990) ... 13, 51, 55
Holloway v. Arthur Andersen & Co., 566 F.2d 659
(9th Cir. 1977) ... 56
Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20,
2005) ... 12
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash.
2004) ... 12
Jimenez v. Weinberger, 417 U.S. 628 (1974) ... 24
*viii Johnson v. Johnson, 385 F.3d 503 (5th Cir.
2004) ... 13
Johnson v. Robison, 415 U.S. 361 (1974) ... 49
King v. Smith, 392 U.S. 309 (1968) ... 45
Lawrence v. Texas, 539 U.S. 558 (2003) ... 27, 28,
57
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.
356 (1973) ... 29
Lofton v. Sec'y of Dep't of Children & Family
Servs., 358 F.3d 804 (11th Cir. 2004) ... 13
Lyng v. Castillo, 477 U.S. 635 (1986) ... 50
Mandel v. Bradley, 432 U.S. 173 (1977) ... 26
Marsh v. Chambers, 463 U.S. 783 (1983) ... 42
Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ...
50
Massachusetts v. U.S. Dep't of HHS, 682 F.3d 1
(1st Cir. 2012) ... passim
Mathews v. Diaz, 426 U.S. 67 (1976) ... 29
Murphy v. Ramsey, 114 U.S. 15 (1885) ... 10
Nat'l Fed. Indep. Bus. v. Sebelius, 132 S. Ct. 2566
(2012) ... 43
New State Ice Co. v. Liebmann, 285 U.S. 262
(1932) ... 42
*ix Nguyen v. INS, 533 U.S. 53 (2001) ... 47
Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) ...
13
Price-Cornelison v. Brooks, 524 F.3d 1103 (10th
Cir. 2008) ... 13
Regan v. Time, Inc., 468 U.S. 641 (1984) ... 23
Romer v. Evans, 517 U.S. 620 (1996) ... 26, 27
Rostker v. Goldberg, 453 U.S. 57 (1981) ... 23
San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1 (1973) ... 50
Santosky v. Kramer, 455 U.S. 745 (1982) ... 47
Schweiker v. Wilson, 450 U.S. 221 (1981) ... 29
Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861
(C.D. Cal. 2005) ... 12
Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir.
2006) ... 3, 12
Smelt v. Cnty. of Orange, 549 U.S. 959 (2006) ... 3
Smith v. Org. of Foster Families for Equal. & Re-
2013 WL 267026 (U.S.) Page 4
form, 431 U.S. 816 (1977) ... 47
Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ...
13
U.S. Dep't of Agric. v. Moreno, 413 U.S. 528
(1973) ... 23, 24
*x U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779
(1995) ... 37
United States v. Carotene Prods. Co., 304 U.S. 144
(1938) ... 58
United States v. Five Gambling Devices, 346 U.S.
441 (1953) ... 23
United States v. Turley, 352 U.S. 407 (1957) ... 36
United States v. Virginia, 518 U.S. 515 (1996) ... 48
Vance v. Bradley, 440 U.S. 93 (1979) ... 28
Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)
... 30
Walters v. Nat'l Ass'n of Radiation Survivors, 473
U.S. 305 (1985) ... 22
Washington v. Glucksberg, 521 U.S. 702 (1997) ...
59
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla.
2005) ... 12
Woodward v. United States, 871 F.2d 1068 (Fed.
Cir. 1989) ... 13, 55
Yarborough v. Yarborough, 290 U.S. 202 (1933) ...
44
Zablocki v. Redhail, 434 U.S. 374 (1978) ... 44
Constitutional Provision
U.S. Const. art. II, 3 ... 12
*xi Statutes & Regulations
5 U.S.C. 8101 ... 5
5 U.S.C. 8341(a) ... 5
8 U.S.C. 1186a(b)(1) ... 5
22 U.S.C. 4081 ... 3
26 U.S.C. 2(b)(2) ... 5
26 U.S.C. 6013(a) ... 5
26 U.S.C. 7703(b) ... 5
38 U.S.C. 101(31) ... 5
42 U.S.C. 416 ... 5
42 U.S.C. 1382c(d)(2) ... 4
Don't Ask Don't Tell Repeal Act of 2010, Pub. L.
No. 111-321, 124 Stat. 3515, 10 U.S.C. 654 note
... 52
Revenue Act of 1921, 223(b), 42 Stat. 227 ... 5
Presidential Mem., Extension of Benefits to Same-
Sex Domestic Partners of Federal Employees, 75
Fed. Reg. 32,247 (June 2, 2010) ... 4
U.S. Dep't of Labor, Final Rule, The Family and
Medical Leave Act of 1993, 60 Fed. Reg. 2,180
(Jan. 6, 1995) ... 5
Other Authorities
142 Cong. Rec. 10468 (1996) (Sen. Nickles) ... 34
142 Cong. Rec. 16969 (1996) (Rep. Canady) ... 6
142 Cong. Rec. 17079 (1996) (Rep. Bryant) ... 7
142 Cong. Rec. 17089 (1996) (Rep. Hyde) ... 7
142 Cong. Rec. 17094 (1996) ... 2
*xii 142 Cong. Rec. 22262 (1996) (Sen. Lieber-
man) ... 11
142 Cong. Rec. 22438 (1996) (Sen. Lott) ... 7
142 Cong. Rec. 22440 (1996) (Sen. Nickles) ... 7
2013 WL 267026 (U.S.) Page 5
142 Cong. Rec. 22443 (1996) (Sen. Gramm) ... 9,
39
142 Cong. Rec. 22446 (1996) (Sen. Byrd) ... 6, 11
142 Cong. Rec. 22448 (1996) (Sen. Byrd) ... 9, 39
142 Cong. Rec. 22452 (1996) (Sen. Mikulski) ... 7
142 Cong. Rec. 22453 (1996) (Sen. Hatfield) ... 8
142 Cong. Rec. 22453 (1996) (Sen. Murkowski) ...
8
142 Cong. Rec. 22454 (1996) (Sen. Burns) ... 10
142 Cong. Rec. 22459 (1996) (Sen. Ashcroft) ... 8,
34
142 Cong. Rec. 22463 (1996) (Sen. Bradley) ... 10
142 Cong. Rec. 22467 (1996) ... 2
Am. Psychological Ass'n, Answers to Your Ques-
tions: For a Better Understanding of Sexual Orient-
ation & Homosexuality, http://
www.apa.org/topics/sexuality/orientation.aspx/ ...
56
Bara Vaida and Neil Munro, Interest Groups - Re-
versal of Fortunes, Nat'l J., Nov. 11, 2006 ... 53
*xiii Charles Mahtesian, A Record Number of Gay
Candidates, POLITICO.com (Oct. 2, 2012), ht-
tp://www.politico.com/blogs/charlie-mahtesian/201
2/10/a-record-number-of-gay-candidates-137289.ht
ml ... 52
Cong. Budget Office, The Potential Budgetary Im-
pact of Recognizing Same-Sex Marriages (2004),
http://
www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55
xx/doc5559/06-21-samesexmarriage.pdf ... 40
Council on Families in America, Marriage in
America: A Report to the Nation (1995) ... 10
Dan Eggen, The Influence Industry: Same-Sex Mar-
riage Issue Shows Importance of Gay Fundraisers,
Wash. Post (May 9, 2012), http://
www.washingtonpost.com/politics/same-sex-marria
ge-de-
bate-
many-
of-oba-
mas-
top-fun-
draisers-
are-gay/2012/05/09/gIQASJYSDU_story.html ... 53
Frank Newport, For First Time, Majority of Amer-
icans Favor Legal Gay Marriage, Gallup.com
(May 20, 2011), ht-
tp://www.gallup.com/poll/147662/first-time-majorit
y-americans-favor-legal-gay-marriage.aspx ... 51
George Chauncey, Why Marriage?: The History
Shaping Today's Debate Over Gay Equality (2004)
... 57
H.R. Rep. No. 104-664 (1996), reprinted in 1996
U.S.C.C.A.N. 2905 ... passim
*xiv Human Rights Campaign Lauds 2008 Election
Results, HRC.org (Nov. 4, 2008), ht-
tp://www.hrc.org/press-releases/entry/human-rights
-campaign-lauds-2008-election-results ... 53
Kristin Anderson Moore et al., Marriage from a
Child's Perspective: How Does Family Structure
Affect Children and What Can We Do About It?,
Child Trends Research Brief (2002), ht-
tp://www.childtrends.org/files/marriagerb602.pdf ...
48
Letter from Andrew Fois, Asst. Att'y Gen., to Rep.
Canady (May 29, 1996), reprinted in H.R. Rep. No.
104-664 (1996), reprinted in 1996 U.S.C.C.A.N.
2905 ... 11
Letter from Andrew Fois, Asst. Att'y Gen., to Rep.
Hyde (May 14, 1996), reprinted in H.R. Rep. No.
104-664 (1996), reprinted in 1996 U.S.C.C.A.N.
2905 ... 11
Letter from Andrew Fois, Asst. Att'y Gen., to Sen.
2013 WL 267026 (U.S.) Page 6
Hatch (July 9, 1996), reprinted in The Defense of
Marriage Act: Hearing on S. 1740 Before the S.
Comm. on the Judiciary, 104th Cong. (1996) ... 11
Letter from Att'y Gen. Eric H. Holder, Jr., to the
Hon. John A. Boehner, Speaker of the House (Feb.
23, 2011), http://
www.justice.gov/opa/pr/2011/February/11-ag-223.h
tml ... 12, 13
*xv Linda D. Garnets & Letitia Anne Peplau, A
New Paradigm for Women's Sexual Orientation:
Implications for Therapy, 24 Women & Therapy
111 (2001) ... 56
Michael Falcone, Maine Vote Repeals Gay Mar-
riage Law, POLITICO.com, (Nov. 4, 2009), ht-
tp://www.politico.com/news/stories/1109/29119.ht
ml ... 52
Michelle Garcia & Andrew Harmon, Obama's
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tp://www.advocate.com/news/daily-news/2011/10/2
4/obamas-power-gays ... 53
Owen Keehnen, The Case for Gay Marriage: Talk-
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GLBTQ.com (2004), http://
www.glbtq.com/sfeatures/interviewgchauncey.html
... 57
The Defense of Marriage Act: Hearing on S. 1740
Before the S. Comm. on the Judiciary, 104th Cong.
(1996) ... 7, 11
William Meezan & Jonathan Rauch, Gay Marriage,
Same-Sex Parenting, and America's Children, 15
Future of Children 97 (2005), http:// futureofchil-
dren.org/futureofchildren/publications/docs/15_02_
06.pdf ... 42
*1 OPINIONS BELOW
The opinion of the Court of Appeals for the Second
Circuit is reported at 699 F.3d 169, and reproduced
in the Appendix to the Supplemental Brief for the
United States (Supp. App.) at 1a. The opinion of
the District Court on the merits is reported at 833 F.
Supp. 2d 394, and reproduced in the Appendix to
the Petition for a Writ of Certiorari Before Judg-
ment (App.) at 1a. The district court's opinion on
intervention is reported at 797 F. Supp. 2d 320, and
reproduced in the Joint Appendix (JA) at JA 218.
JURISDICTION
The district court's judgment was entered on June 7,
2012. App. 23a. The Bipartisan Legal Advisory
Group of the United States House of Representat-
ives (the House) filed a notice of appeal on June
8, 2012. App. 27a-29a. The United States filed its
own notice of appeal on June 14, 2012. App.
25a-26a. On September 11, 2011, while the case
was pending in the court of appeals, the United
States filed a petition for certiorari before judg-
ment, invoking this Court's jurisdiction under 28
U.S.C. 1254(1) and 2101(e). The court of ap-
peals rendered its judgment on October 18, 2012.
Supp. App. 1a. On December 7, 2012, this Court
granted the United States' petition.
CONSTITUTIONAL AND STATUTORY PROVI-
SIONS INVOLVED
The provisions of the Fifth Amendment to the Con-
stitution and Sections 2 and 3 of the Defense of
Marriage Act are reproduced in the Appendix to
this brief at 1a.
*2 STATEMENT OF THE CASE
A. The Defense of Marriage Act
For more than two centuries after our Nation's
Founding, every state and the federal government
defined marriage as the legal union of a woman and
a man. Indeed, [u]ntil a few decades ago, it was an
accepted truth for almost everyone who ever lived,
in any society in which marriage existed, that there
could be marriages only between participants of
different sex. Hernandez v. Robles, 855 N.E.2d 1,
8 (N.Y. 2006).
By 1996, however, a Hawaii Supreme Court de-
2013 WL 267026 (U.S.) Page 7
cision had called that uniform approach into ques-
tion. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)
(indicating that same-sex marriage licenses may
have been required by Hawaii's constitution). The
Baehr decision raised the novel question of whether
one state's redefinition of marriage should automat-
ically extend to other states via full faith and credit
principles or to the federal government when it
came to federal programs linked to marriage.
Congress addressed this question by passing the
Defense of Marriage Act of 1996 (DOMA),
which was enacted with strong majorities in both
Houses [of Congress] and signed into law by Pres-
ident Clinton. Massachusetts v. U.S. Dep't of HHS,
682 F.3d 1, 6 (1st Cir. 2012), petitions for cert.
pending, Nos. 12-13 & 12-15. DOMA passed in the
House of Representatives by a vote of 342-67, see
142 Cong. Rec. 17094-95 (1996), and in the Senate
by a vote of 85-14, see id. at 22467. In the Senate
supporters included then-Senator Biden; then-
Minority Leader *3 Daschle; current Majority
Leader Reid; and current Judiciary Committee
Chairman Leahy. In the House, Rep. Hoyer, the
Current Minority Whip, supported DOMA.
DOMA reflected Congress' determination that each
sovereign should be able to determine for itself how
to define marriage for purposes of its own law.
DOMA does not override or invalidate any sover-
eign's decision to modify the definition of marriage,
but it does preserve that prerogative for each sover-
eign. Section 2 of DOMA allows each state to de-
cide for itself whether to retain the traditional
definition without having another jurisdiction's de-
cision imposed upon it via full faith and credit prin-
ciples. And Section 3 preserves the federal govern-
ment's ability to use the traditional definition of
marriage for purposes of federal law and programs.
It does so not by singling out any category of rela-
tionships for specific exclusion, but rather by clari-
fying what marriage means for purposes of federal
law: It clarifies that, for purposes of federal law,
marriage means the legal union of one man and
one woman, and spouse means a person of the
opposite sex who is a husband or wife. 1 U.S.C. 7
.
DOMA does not preclude Congress or anyone else
in the federal system from extending benefits to
those who are not included within [its] definition.
Smelt v. Cnty. of Orange, 447 F.3d 673, 683 (9th
Cir. 2006), cert. denied, 549 U.S. 959 (2006). Thus,
some federal statutes provide benefits for
families, see, e.g., 22 U.S.C. 4081 (extending
certain financial benefits to Foreign Service mem-
bers and their families), and the President has in-
terpreted that *4 term, which is not defined by
DOMA, to include same-sex couples. See Presiden-
tial Mem., Extension of Benefits to Same-Sex Do-
mestic Partners of Federal Employees, 75 Fed.
Reg. 32,247 (June 2, 2010) (directing the Office of
Personnel Management to clarify that, for pur-
poses of employee assistance programs, same-sex
domestic partners and their children qualify as
family members' ).
DOMA's definitions apply for federal-law purposes
only: DOMA does not bar or invalidate any state-
law marriage, but leaves states free to decide
whether they will recognize same-sex marriages.
DOMA simply asserts the federal government's
right as a separate sovereign to provide its own
definition for purposes of its own federal programs
and funding.
Historically, the federal government often has
found it convenient to accept the marital determina-
tions made by the several states (which for the most
part have varied only in the particulars) for pur-
poses of federal law - just as the states typically re-
cognize marriages licensed by other states for pur-
poses of their own law. But Congress also has a
long history, when it sees fit, of supplying its own
definitions of marriage for various federal pur-
poses. These longstanding federal definitions some-
times provide marital benefits to couples who a
state may not recognize as married,
[FN1]
and
sometimes decline to extend federal regulation or
benefits to couples *5 despite a state-issued mar-
riage certificate.
[FN2]
2013 WL 267026 (U.S.) Page 8
FN1. See, e.g., 42 U.S.C. 1382c(d)(2)
(recognizing common-law marriage for
purposes of social security benefits without
regard to state recognition).
FN2. See, e.g., 5 U.S.C. 8101(6), (11),
8341(a)(1)(A)-(a)(2)(A) (federal employ-
ee-benefits statutes defining widow and
widower restrictively); 8 U.S.C.
1186a(b)(1) (denying recognition to some
state-law marriages in immigration law
context); 26 U.S.C. 2(b)(2) (tax law pro-
vision deeming persons unmarried who are
separated from their spouse or whose
spouse is a nonresident alien); 26 U.S.C.
7703(b) (excluding some couples living
apart from federal marriage definition for
tax purposes); 42 U.S.C. 416 (defining
spouse, wife, husband, widow,
widower, and divorce, for social-se-
curity purposes).
Similarly, even before DOMA was enacted, feder-
al-law references to marriage employed the tradi-
tional definition, as Congress, the Executive
Branch, and the courts have recognized. See, e.g.,
Revenue Act of 1921, 223(b), 42 Stat. 227
(permitting a husband and wife living together to
file a joint tax return; cf. 26 U.S.C. 6013(a) (A
husband and wife may make a single return jointly
of income taxes)); 38 U.S.C. 101(31) (for pur-
poses of veterans' benefits, spouse means a per-
son of the opposite sex); U.S. Dep't of Labor, Fi-
nal Rule, The Family and Medical Leave Act of
1993, 60 Fed. Reg. 2,180, 2,190-91 (Jan. 6, 1995)
(rejecting, as inconsistent with congressional intent,
proposed definition of spouse that would have in-
cluded same-sex relationships); Adams v. Hower-
ton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980)
(Congress, as a matter of federal law, did not in-
tend that a person of one sex could be a spouse to
a person of the same sex for immigration law pur-
poses), aff'd, 673 F.2d 1036 (9th Cir. 1982); Dean
v. District of Columbia, 653 A.2d 307, 314 (D.C.
1995) (Congress, in enacting the District of
Columbia's 1901 marriage statute, intended that *6
marriage is limited to opposite-sex couples).
Congress explained that, in defining the terms
marriage and spouse, Section 3 of DOMA
merely restates the current understanding of what
those terms mean for purposes of federal law. H.R.
Rep. No. 104-664, at 30 (1996), reprinted in 1996
U.S.C.C.A.N. 2905 (House Rep.); see also id. at
10 ([I]t can be stated with certainty that none of
the federal statutes or regulations that use the words
marriage or spouse were thought by even a
single Member of Congress to refer to same-sex
couples.); 142 Cong. Rec. 16969 (1996) (Rep.
Canady) (Section 3 changes nothing; it simply re-
affirms existing law.); id. at 22446 (Sen. Byrd)
([A]ll this bill does is reaffirm for purposes of
Federal law what is already understood by every-
one.).
Congress emphasized that [t]he most important as-
pect of Section 3 is that it applies to federal law
only and does not have any effect whatsoever on
the manner in which any State might choose to
define these words. House Rep. 30 (parenthetical
omitted). Section 3 defines these two words only
insofar as they are used in federal law. Id. Con-
gress thus reaffirmed the federal government's abil-
ity to make its own decision regarding whether to
recognize same-sex relationships as marriages,
without having its hand forced by a minority of the
states or forcing any state to follow the federal
definition for purposes of its own state law.
In addition, Congress wanted to preserve the right
of each state - like the federal government - to
define marriage within its own sphere. DOMA Sec-
tion 2 prevents a decision by one state to re-define
marriage from trumping the decisions of other
states
*7 via full faith and credit principles. Section 3
similarly prevents such a state re-definition from
being automatically picked up for federal-law pur-
poses. See 142 Cong. Rec. 17079 (1996) (Rep. Bry-
ant) (Certainly we should not allow one State,
2013 WL 267026 (U.S.) Page 9
whether it be Hawaii or any other State, to, in ef-
fect, establish what the Federal law will be in re-
gards to what a marriage is.); id. at 17089 (Rep.
Hyde) ([A]s to defining marriage in the Federal
code, who else should define it except this Con-
gress, the Federal legislature.); The Defense of
Marriage Act: Hearing on S. 1740 Before the S.
Comm. on the Judiciary, 104th Cong, at 2 (1996)
(Senate Hrg.) (Sen. Hatch) (DOMA ensures that
each State can define for itself the concept of mar-
riage and not be bound by decisions made by other
States. [DOMA] also makes clear that no Federal
law should be read to treat a same-sex union as a
marriage. ); id. at 41 (statement of Prof. Lynn
Wardle) (Section 3 protects Congress' authority to
control federal laws, programs and agencies. It pre-
vents the imposition of same-sex marriage upon
federal law without the approval of Congress. That,
too, protects our federalism.); 142 Cong. Rec.
22438 (1996) (Sen. Lott) (DOMA will ensure that
each State can reach its own decision about this ex-
tremely controversial matter: The legal status of
same-sex unions. [DOMA], likewise, ensures that
for the purposes of Federal programs, marriages
will be defined by Federal law.); id. at 22440 (Sen.
Nickles) (Without DOMA, if Hawaii, or any other
State, gives new meaning to the words marriage
and spouse, reverberations may be felt throughout
the Federal Code.); id. at 22452 (Sen. Mikulski)
([This bill] puts in the Federal law books *8 what
has always been the definition of a marriage and
allows each State to determine for itself what is
considered a marriage under that State's laws.); id.
at 22453 (Sen. Hatfield) (The bill would restrict
the effect of any state law that allows same-sex
marriage to that state only.); id. (Sen. Murkowski)
(By defining the term marriage, Congress is pro-
tecting the sovereignty of each State and avoiding
the ramifications of the absence of a definition of
marriage in Federal law.).
Members of Congress also stressed that conflicting
state definitions of marriage should not be permit-
ted to create geographical disparities in the eligibil-
ity for federal benefits. As Senator Ashcroft stated,
having a uniform federal definition of marriage is
very important, because unless we have a Federal
definition of what marriage is, a variety of States
around the country could define marriage differ-
ently [and] people in different States would have
different eligibility to receive Federal benefits,
which would be inappropriate. 142 Cong. Rec.
22459 (1996). Federal benefits, he observed,
should be uniform for people no matter where they
come from in this country. People in one State
should not have a higher claim on Federal benefits
than people in another State. Id. It would be
irrational and inconsistent, he said, if citizens of
one State [were given] higher benefits or different
benefits than citizens of another State. Id. [I]t is
entirely appropriate for us, as a Congress, to say
that we want a Federal benefits structure that fol-
lows a uniform definition of marriage. Id.; see
also id. at 22453 (Sen. Murkowski) (DOMA estab-
lishes uniformity in federal benefits, rights and
privileges *9 for married persons.); id. at 22448
(Sen. Byrd) (Without a Federal definition every
department and every agency of the Federal Gov-
ernment that administers public benefit programs
would be left in the lurch.).
Congress additionally noted that DOMA helped to
preserve the public fisc and avoid the unpredictable
effects of changing traditional federal definitions
that governed eligibility for federal benefits and
taxes. Government currently provides an array of
material and other benefits to married couples, and
those benefits impose certain fiscal obligations on
the federal government. House Rep. 18. Congress
believed that DOMA would preserve scarce gov-
ernment resources, surely a legitimate government
purpose. Id. As Senator Gramm observed, without
DOMA, state recognition of same-sex marriage will
create
a whole group of new beneficiaries - no one knows
what the number would be - tens of thousands, hun-
dreds of thousands, potentially more - who will be
beneficiaries of newly created survivor benefits un-
der Social Security, Federal retirement plans, and
military retirement plans. [I]t will impose a
2013 WL 267026 (U.S.) Page 10
whole new set of benefits and expenses which have
not been planned or budgeted for under current law.
142 Cong. Rec. 22443 (1996). If the federal gov-
ernment were forced to recognize same-sex mar-
riages, Sen. Byrd noted, it is [not] inconceivable
that the costs associated with such a change could
amount to hundreds of millions of dollars, if not
billions of Federal taxpayer dollars. Id. at
22448; *10 see also id. at 22454 (Sen. Burns)
(Given the budget difficulties we are currently fa-
cing, it would be an understatement to say that this
[federal recognition of same-sex marriages] could
have an enormous financial impact on our coun-
try.).
In retaining the traditional definition for federal-
law purposes, Congress also emphasized [t]he
enormous importance of [traditional] marriage for
civilized society. House Rep. 13 (quoting Coun-
cil on Families in America, Marriage in America: A
Report to the Nation 10 (1995)). The House Report
quoted approvingly from this Court's decision in
Murphy v. Ramsey, which referred to the idea of
the family, as consisting in and springing from the
union for life of one man and one woman in the
holy estate of matrimony; the sure foundation of all
that is stable and noble in our civilization. House
Rep. 12 (quoting 114 U.S. 15, 45 (1885)) (emphasis
in House Rep.). Congress recognized that the insti-
tution of marriage has traditionally been defined in
American law as the union of one man and one wo-
man, and was cognizant of the need for caution in
changing such an important institution. See House
Rep. 3 ([T]he uniform and unbroken rule has been
that only opposite-sex couples can marry.); 142
Cong. Rec. 22463 (1996) (Sen. Bradley) ([W]hen
we contemplate giving state sanction to same-sex
marriages, we need to proceed cautiously.).
Congress further explained that the institution of
marriage is a response to the unique social concerns
surrounding the inherently procreative nature of
heterosexual relationships - specifically, that
society recognizes the institution of marriage and
grants married persons preferred legal status *11
because it has a deep and abiding interest in en-
couraging responsible procreation and childrear-
ing. House Rep. 12, 13. Congress recognized the
basic biological fact that only a man and a woman
can beget a child together without advance plan-
ning, which means that opposite-sex couples have a
unique tendency to produce unplanned and uninten-
ded offspring. Congress sought to encourage the
raising of such children by both their biological
parents in a stable family structure. See 142 Cong.
Rec. 22446 (Sen. Byrd); id. at 22262 (Sen. Lieber-
man) (DOMA affirms another basic American
mainstream value, marriage as an institution
between a man and a woman, the best institution to
raise children in our society.).
While Congress was considering DOMA, it reques-
ted the opinion of the Department of Justice on the
bill's constitutionality, and the Department three
times reassured Congress that DOMA was constitu-
tional. See Letters from Andrew Fois, Asst. Att'y
Gen., to Rep. Canady (May 29, 1996), reprinted in
House Rep. 34; to Rep. Hyde (May 14, 1996), re-
printed in House Rep. 33-34; and to Sen. Hatch
(July 9, 1996), reprinted in Senate Hrg. 2. Congress
also received and considered other expert advice
and concluded that DOMA was plainly constitu-
tional. House Rep. 33; see also Senate Hrg. 1, 2
(Sen. Hatch) (DOMA is a constitutional piece of
legislation and a legitimate exercise of Congress'
power); id. at 23-41 (testimony of Professor
Wardle); id. at 44 n.1 (statement of Professor Cass
Sunstein) (opining that DOMA Section 3 would be
upheld as constitutional); id. at 56-59 (letter from
Professor Michael McConnell).
*12 B. The Justice Department Stops Defending
DOMA and Starts Attacking It
Following DOMA's enactment, the Department of
Justice discharged its constitutional duty to take
Care that the Laws be faithfully executed, U.S.
Const. art. II, 3, and successfully defended Sec-
tion 3 of DOMA against several constitutional chal-
lenges, prevailing in every case to reach final judg-
ment.
[FN3]
The Department continued to defend
2013 WL 267026 (U.S.) Page 11
DOMA during the first two years of the current Ad-
ministration.
FN3. See Smelt v. Cnty. of Orange, 374 F.
Supp. 2d 861 (C.D. Cal. 2005), aff'd in
part and vacated in part for lack of stand-
ing, 447 F.3d 673 (9th Cir. 2006); Wilson
v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla.
2005); Hunt v. Ake, No. 04-cv-1852 (M.D.
Fla. Jan. 20, 2005); In re Kandu, 315 B.R.
123 (Bankr. W.D. Wash. 2004).
In February 2011, however, the Administration ab-
ruptly reversed course and abdicated its duty to de-
fend DOMA's constitutionality. See Letter from
Att'y Gen. Eric H. Holder, Jr., to the Hon. John A.
Boehner, Speaker of the House (Feb. 23, 2011)
(Holder Letter), http://
www.justice.gov/opa/pr/2011/February/11-ag-223.h
tml. Attorney General Holder announced that he
and President Obama were now of the view that a
heightened standard [of review] should apply [to
DOMA], that Section 3 is unconstitutional under
that standard and that the Department will cease de-
fense of Section 3. Id.
The Attorney General acknowledged that, in light
of the respect appropriately due to a coequal
branch of government, the Department has a
longstanding practice of defending the constitution-
ality of duly-enacted statutes if reasonable argu-
ments can be *13 made in their defense. Id. He did
not, however, apply that standard to DOMA. On the
contrary, he conceded that every federal court of
appeals to have considered the issue by that point in
time (eleven of the thirteen circuits) had applied ra-
tional basis review to sexual orientation classifica-
tions and that a reasonable argument for Section 3
's constitutionality may be proffered under [the ra-
tional basis] standard. Id.
[FN4]
FN4. See, e.g., Cook v. Gates, 528 F.3d 42,
61-62 (1st Cir. 2008); Thomasson v. Perry,
80 F.3d 915, 927-928 (4th Cir. 1996);
Johnson v. Johnson, 385 F.3d 503, 532
(5th Cir. 2004); Davis v. Prison Health
Servs., 679 F.3d 433, 438 (6th Cir. 2012);
Ben-Shalom v. Marsh, 881 F.2d 454, 464
(7th Cir. 1989); Citizens for Equal Prot. v.
Bruning, 455 F.3d 859, 866-867 (8th Cir.
2006); High Tech Gays v. Def. Indus. Sec.
Clearance Office, 895 F.2d 563, 573-574
(9th Cir. 1990); Price-Cornelison v.
Brooks, 524 F.3d 1103, 1113 (10th Cir.
2008); Lofton v. Sec'y of Dep't of Children
& Family Servs., 358 F.3d 804, 818 (11th
Cir. 2004); Padula v. Webster, 822 F.2d
97, 103 (D.C. Cir. 1987); Woodward v.
United States, 871 F.2d 1068, 1076 (Fed.
Cir. 1989).
Although the Holder Letter had said only that the
Department would cease defense of DOMA Sec-
tion 3, the Department did not merely bow out of
DOMA litigation. Instead, it affirmatively assailed
DOMA in court - arguing that Section 3 violates
equal protection and urging courts to render judg-
ment in favor of plaintiffs challenging the law even
in Circuits in which rational basis was binding cir-
cuit law. The Department even went so far as to ac-
cuse the Congress that enacted DOMA - many of
whose Members still serve - of being motivated by
animus. Br. for United States 25, Windsor, Nos.
12-2335 & 12-2435 (2d Cir. Aug. 10, 2012), ECF
120.
*14 In response to the Department's remarkable
about face on DOMA, Massachusetts, 682 F.3d
at 7, the House intervened as a party-defendant in
more than a dozen cases (fifteen to date), around
the country, in which one or more plaintiffs chal-
lenged the constitutionality of DOMA Section 3;
the House did so to ensure that a duly-enacted fed-
eral statute would have an adequate constitutional
defense. No court denied intervention.
C. Ms. Windsor's Challenge to DOMA
Respondent Edith Schlain Windsor and another wo-
man, Thea Clara Spyer, obtained a certificate of
marriage from the province of Ontario, Canada in
2007. At that time, their home state of New York
2013 WL 267026 (U.S.) Page 12
did not issue marriage licenses to same-sex couples.
Ms. Spyer died in 2009, naming Ms. Windsor the
executor and sole beneficiary of her estate. Nine
months after Ms. Spyer's passing, the New York
Court of Appeals expressly reserved the question of
whether New York law recognized foreign, same-
sex marriage certificates. See Godfrey v. Spano,
920 N.E.2d 328, 337 (N.Y. 2009). New York did
not itself begin issuing marriage licenses to same-
sex couples until 2011.
After paying more than $363,000 in federal estate
taxes, Ms. Windsor, as executor, sought a refund on
the theory that the estate was entitled to the marital
deduction, even though both Ms. Windsor and Ms.
Spyer continued to file individual income tax re-
turns after obtaining an Ontario marriage certificate
in 2007. Recognizing that federal law offers this
deduction only when the beneficiary of the estate is
a spouse within the meaning of federal tax law
and *15 DOMA, Ms. Windsor claimed that the fail-
ure to extend this favorable treatment to her viol-
ated her equal protection rights. The IRS denied the
refund, and Ms. Windsor filed this suit in her capa-
city as executor of the estate. Ms. Windsor's consti-
tutional challenge is premised on the notion that
New York would have recognized the 2007 Cana-
dian marriage certificate, even though New York
did not issue marriage certificates to same-sex
couples until after Ms. Spyer's death.
After the Justice Department abandoned DOMA's
defense in early 2011, the district court sua sponte
invited Congress to intervene in the litigation, and
the House did so. The district court followed the
First Circuit's lead and invalidated DOMA under a
variant of rational basis it labeled intensified scru-
tiny. 682 F.3d at 10.
On appeal, the Second Circuit first found that the
Department had appellate standing and then ad-
dressed Ms. Windsor's standing. It recognized that,
[a]t the time of Spyer's death in 2009, New York
did not yet license same-sex marriage itself and
therefore decisive for standing in this case is
whether in 2009 New York recognized same-sex
marriages entered into in other jurisdictions. Supp.
App. 5a. The Second Circuit declined to certify this
sensitive question of state law, reasoning that the
New York Court of Appeals had signaled its disin-
clination to decide this very question in Godfrey.
Supp. App. 6a. Instead, the panel predict[ed]
that Windsor's marriage would have been recog-
nized under New York law at the time of Spyer's
death, based on three New York lower court rul-
ings, two of which pre-dated Godfrey. App. 6a-7a.
*16 On the merits, the panel majority recognized
that this Court's decision in Baker v. Nelson, 409
U.S. 810 (1972), held that the use of the traditional
definition of marriage for a state's own regulation
of marriage status did not violate equal protection.
Supp. App. 3a. Yet the panel majority concluded
that Baker does not control equal protection re-
view of DOMA because DOMA is a federal law
and there had been doctrinal changes in equal
protection law since 1971. Supp. App. 8a, 10a.
In its equal protection analysis, the panel majority
explained that a party urging the absence of any
rational basis takes up a heavy load and [t]hat
would seem to be true in this case - the law was
passed by overwhelming bipartisan majorities in
both houses of Congress and the definition of
marriage it affirms has been long-supported and en-
couraged. Supp. App. 12a-13a. Indeed, the panel
majority did not dispute Judge Straub's conclusion
that DOMA survives rational basis review. See
Supp. App. 14a. It also declined to apply rational
basis plus review, because this Court has not ex-
pressly sanctioned such modulation in the level of
rational basis review. Supp. App. 13a.
The panel majority ultimately determined - in con-
flict with eleven other circuits - that heightened
scrutiny applies to classifications based on sexual
orientation. Supp. App. 15a. The panel majority ac-
knowledged that homosexuals clearly have at-
tained political successes over the years, but
deemed that they cannot adequately protect them-
selves from the discriminatory wishes of the major-
2013 WL 267026 (U.S.) Page 13
itarian public. Supp. App. 21a-23a.
Finally, the panel majority concluded that *17Sec-
tion 3 of DOMA could not survive heightened scru-
tiny. The Court recognized Congress' concern with
ensuring uniform eligibility for federal marital be-
nefits, but found it suspicious that Congress
would attempt to define the word marriage when
it had traditionally deferred to the states. Supp.
App. 24a-25a. It also recognized the budgetary con-
cerns motivating DOMA, but held them insufficient
to satisfy intermediate scrutiny. Supp. App.
26a-28a. The panel majority agree [d] that promo-
tion of procreation can be an important government
objective, but held that DOMA does not further
that objective because it affected only federal bene-
fits. Supp. App. 30a. Thus, although it acknow-
ledged that same-sex marriage is unknown to his-
tory and tradition, the panel majority nonetheless
invalidated DOMA. Supp. App. 29a-31a.
Judge Straub dissented on the merits, noting that
DOMA reflects the understanding of marriage
throughout our nation's history, and that, [i]f this
understanding is to be changed, it is for the
American people to do so. Supp. App. 31a-32a.
Judge Straub found that this Court's decision in
Baker resolved the essentially identical challenge
we have here, because although Baker involved a
state law, the equal protection component of the
Fifth Amendment is identical to and coextensive
with the Fourteenth Amendment guarantee. Supp.
App. 32a, 45a.
Even apart from Baker, Judge Straub concluded
that routine respect for extant precedent requires
the application of rational-basis review to sexual-
orientation classifications. Supp. App. 81a. He ob-
served that this Court has warned the lower *18
courts to be wary of creating new suspect or
quasi-suspect classifications, that it has not itself
recognized any such classifications in decades,
and that this Court applied rational-basis review in
Romer despite having the opportunity to apply
heightened review. Supp. App. 33a, 78a, 81a.
Applying rational basis review, Judge Straub found
that DOMA centers on legitimate state interests
that go beyond mere moral disapproval of an ex-
cluded group. Supp. App. 33a. He noted that
DOMA promotes uniformity in federal marital be-
nefits and does nothing to strip the status that
states confer on couples they marry. Supp. App.
63a-64a. He concluded that it is rational for Con-
gress to limit the national impact of state-level
policy development and to take an approach that
attempts to create uniformity across the states in
matters governed by federal law. Supp. App.
67a-68a, 69a.
Judge Straub also noted that this Court has contin-
ued to view the biological link of parents to chil-
dren as deserving of special recognition and protec-
tion. Supp. App. 71a. He therefore concluded that
DOMA furthers the legitimate government interest
in encouraging heterosexual relationships, with
their unique tendency to produce unintended off-
spring, to be channeled into an institution designed
to facilitate the raising of such offspring. Supp.
App. 55a-62a.
Judge Straub therefore concluded that [w]hether
connections between marriage, procreation, and
biological offspring recognized by DOMA and the
uniformity it imposes are to continue is an issue
for the American people and their elected *19 rep-
resentatives to settle through the democratic pro-
cess. Supp. App. 83a. He noted the robust politic-
al debate on this topic and expressed regret that
striking down DOMA poisons the political well
by interven[ing] in this robust debate only to cut it
short. Id.
SUMMARY OF THE ARGUMENT
Although the passions that surround the issue of
same-sex marriage undoubtedly run high, the issue
before this Court is quite narrow. Assuming that
states remain free either to recognize same-sex mar-
riages or retain the traditional definition, the ques-
tion here is whether the federal government retains
the same latitude to choose a definition for federal-
2013 WL 267026 (U.S.) Page 14
law purposes, or whether instead it must borrow
state-law definitions as its own, recognizing same-
sex marriages of U.S. citizens residing in Mas-
sachusetts (because Massachusetts does) but not
same-sex relationships of U.S. citizens residing in
Virginia (because Virginia does not). Bedrock prin-
ciples of federalism make clear that the federal gov-
ernment has the same latitude as the states to adopt
its own definition of marriage for federal-law pur-
poses and has a unique interest in treating citizens
across the nation the same.
To be sure, the federal government also has the op-
tion of borrowing state-law definitions, as it did
during the long period when the states uniformly
employed the traditional definition. But in 1996
when it appeared that states soon would begin ex-
perimenting with changing the traditional defini-
tion, the federal government was under no obliga-
tion to follow suit. Congress could, and did, ration-
ally decide to retain the traditional definition *20 as
the uniform rule for federal-law purposes. Congress
could, and someday may, adopt a different ap-
proach and either incorporate varying state ap-
proaches or uniformly extend rights to same-sex
couples even in states that retain the traditional
definition. But under our system of government
those decisions are wisely left to Congress and the
democratic process.
In considering DOMA's constitutionality, the Court
should apply rational basis review as it previously
has done when considering classifications on the
basis of sexual orientation. And under that deferen-
tial standard, there is little question that DOMA ra-
tionally furthers multiple legitimate government in-
terests. In 1996, Congress confronted an unpreced-
ented dynamic with at least one state on the verge
of experimenting with a fundamental change to the
traditional definition of marriage. In DOMA, Con-
gress acted to ensure that no one state's decision to
adopt a new definition would dictate the result for
other sovereigns either via full faith and credit prin-
ciples or by federal law borrowing state definitions.
In our federal system, there is certainly nothing ir-
rational about allowing each sovereign - including
the federal government - to make this important de-
cision for itself. Indeed, the justly celebrated ability
of states to act as laboratories of democracy ne-
cessarily assumes the ability of each sovereign to
run its own experiments.
And it was certainly rational for the federal govern-
ment to retain the traditional definition as the gov-
erning definition for federal-law purposes. The fed-
eral government has a unique interest in ensuring
that federal benefits and tax burdens are *21 dis-
tributed equally such that a same-sex couple in Vir-
ginia is treated no differently for federal-law pur-
poses from one in Massachusetts. And if the federal
government can rationally favor a uniform rule, it
was eminently rational to choose the traditional
definition, which was the uniform state-law rule in
1996 and remains the majority approach today.
That decision also was rational because it accur-
ately reflected the intent of the prior Congresses
that created the multitude of programs that tie bene-
fits and burdens to the institution of marriage as tra-
ditionally understood. It also avoided the uncertain
and unpredictable fiscal impact of expanding the
class of federal beneficiaries in unintended ways.
And wholly apart from these unique federal in-
terests that fully justify DOMA, Congress could ra-
tionally decide to retain the traditional definition
for the same basic reasons that states adopted the
traditional definition in the first place and that
many continue to retain it: There is a unique rela-
tionship between marriage and procreation that
stems from marriage's origins as a means to address
the tendency of opposite-sex relationships to pro-
duce unintended and unplanned offspring. There is
nothing irrational about declining to extend mar-
riage to same-sex relationships that, whatever their
other similarities to opposite-sex relationships,
simply do not share that same tendency. Congress
likewise could rationally decide to foster relation-
ships in which children are raised by both of their
biological parents.
Finally, the Second Circuit erred when it became
2013 WL 267026 (U.S.) Page 15
the first court of appeals to treat sexual orientation
*22 as a quasi-suspect class. Creating new suspect
classes takes issues away from the democratic pro-
cess, and this Court has wisely refrained from re-
cognizing new suspect classes over the last four
decades. Homosexuality would be a particularly an-
omalous place to eschew that reluctance, as gays
and lesbians have substantial political power, which
has grown exponentially with each election cycle.
Nor do the other factors this Court has looked to
support recognizing a new suspect class here. To
the contrary, with an issue as divisive and fast-
moving as same-sex marriage, the correct answer is
to leave this issue to the democratic process. In that
process, there is a premium on persuading oppon-
ents, rather than labeling them as bigots motivated
by animus. And the democratic process allows
compromise and way-stations, whereas constitu-
tionalizing an issue yields a one-
size-fits-all-solution that tends to harden the views
of those who lose out at the courthouse, rather than
the ballot box. In the final analysis, the democratic
process is at work on this issue; there is no sound
reason to constitutionalize it.
ARGUMENT
As a statute duly enacted by Congress and signed
by the President, DOMA is entitled to a strong pre-
sumption of validity. Judging the constitutionality
of an Act of Congress is properly considered the
gravest and most delicate duty that this Court is
called upon to perform. Walters v. Nat'l Ass'n of
Radiation Survivors, 473 U.S. 305, 319 (1985)
(quotation marks omitted). The Congress is a co-
equal branch of government whose Members take
the same oath we do to uphold the Constitution of
the United States. *23Rostker v. Goldberg, 453
U.S. 57, 64 (1981). Furthermore, [a] ruling of un-
constitutionality frustrates the intent of the elected
representatives of the people. Regan v. Time, Inc.,
468 U.S. 641, 652 (1984). Therefore, [t]his Court
does and should accord a strong presumption of
constitutionality to Acts of Congress. This is not a
mere polite gesture. It is a deference due to deliber-
ate judgment by constitutional majorities of the two
Houses of Congress that an Act is constitutional.
United States v. Five Gambling Devices, 346 U.S.
441, 449 (1953) (plurality). And [t]he customary
deference accorded the judgments of Congress is
certainly appropriate when, as here, Congress spe-
cifically considered the question of the Act's consti-
tutionality. Rostker, 453 U.S. at 64; see supra at
11.
The deference owed to the coordinate branches of
government is at its zenith when it comes to ration-
al basis review. It is one thing to conclude that a
coordinate branch has crossed one of the sometimes
murky lines that delineate the protections of the Bill
of Rights, but it is quite another thing for this Court
to declare that the two coordinate branches of the
national government have acted not just im-
prudently, but wholly without rational basis. For
that reason, it is perhaps no surprise that this Court
has on only one occasion (at most two) invalidated
an Act of Congress while applying rational basis re-
view. See U.S. Dep't of Agric. v. Moreno, 413 U.S.
528 (1973).
[FN5]
And even then, this Court inval-
idated only *24 a single obscure amendment added
in conference. Id. at 534 n.6. Striking down as irra-
tional a statute like DOMA that was debated in both
chambers, viewed as constitutional by the Justice
Department, passed by large bipartisan majorities
and then signed into law by the President would be
wholly unprecedented.
[FN6]
FN5. Moreno is readily distinguishable.
The classification there could not further
the interests identified by the government
because the vast majority of individuals
excluded could easily rearrange their af-
fairs to become eligible, while only the
neediest people could not. See Moreno,
413 U.S. at 538. There are no analogous
difficulties with DOMA. The only other
even arguable example is Jimenez v. Wein-
berger, 417 U.S. 628 (1974), in which the
Court found a classification based on ille-
gitimacy invalid under any standard of re-
2013 WL 267026 (U.S.) Page 16
view when the Court was in the process of
recognizing illegitimacy as a quasi-suspect
classification.
FN6. Before it can consider DOMA's con-
stitutionality, this Court must resolve a
threshold issue of Article III standing. New
York law did not recognize same-sex mar-
riage until after Ms. Spyer's passing. Thus,
Ms. Windsor only has standing to chal-
lenge DOMA and the denial of a marital
exemption from the estate tax if New York
would have recognized her 2007 Ontario
marriage certificate at a time when New
York did not itself issue marriage certific-
ates to same-sex couples. See Supp. App.
5a (recognizing that this question is
decisive for standing in this case). That
question is not free from doubt; the New
York Court of Appeals expressly reserved
that state-law question in its 2009 Godfrey
decision, nine months after Ms. Spyer's
passing. See Godfrey, 920 N.E.2d at 337.
Both courts below predicted that New
York would have recognized the Ontario
marriage certificate, which presumably
does not obviate the need for this Court to
assure itself of its Article III jurisdiction.
I. Rational Basis Review Applies To DOMA.
Ms. Windsor and the Justice Department contend
that Section 3 of DOMA classifies based on sexual
orientation and that therefore heightened scrutiny
applies. But this Court has never classified sexual
*25 orientation as a suspect or quasi-suspect class,
and indeed has gone out of its way to apply rational
basis review. This Court should do the same here
and apply rational basis review to DOMA.
[FN7]
FN7. By its terms, DOMA does not classi-
fy based on a married couple's sexual ori-
entation. Rather, DOMA classifies based
on whether a marriage is (i) a legal union
(ii) between two persons (iii) of the oppos-
ite sex. A marriage between a man and a
woman would fall within DOMA's defini-
tion even if one or both spouses were ho-
mosexual. Similarly, the marriage of two
men would fall outside the definition even
if both were heterosexual. There is no
question, however, that DOMA has a dis-
proportionate impact on individuals with a
homosexual orientation.
Under this Court's equal protection cases, there are
only three levels of scrutiny. Strict scrutiny is re-
served for laws that classify based on race, alien-
age, or national origin. City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
Classifications based on sex or illegitimacy are
quasi-suspect and receive intermediate scrutiny.
Clark v. Jeter, 486 U.S. 456, 461 (1988). All other
classifications trigger only rational basis review.
This Court has never considered sexual orientation
to be a suspect or quasi-suspect classification and
instead has repeatedly applied rational basis review
to such classifications.
This Court considered a classification similar to
DOMA in Baker v. Nelson, 409 U.S. 810 (1972).
The Baker Court rejected for want of a substantial
federal question an equal protection challenge to
Minnesota's statute defining marriage as a union
between persons of the opposite sex. Baker, 409
U.S. at 810. Although the Court's summary disposi-
tion *26 did not specify the level of scrutiny it ap-
plied, subsequent decisions, discussed in the para-
graphs immediately below, make clear that the
Court applied only rational basis review to the Min-
nesota statute's limitation of marriage to opposite-
sex couples. Such a summary dismissal is, of
course, a decision on the merits and, while it does
not have the same force before this Court as a de-
cision reached after plenary review, it carries pre-
cedential effect. Summary affirmances and dis-
missals for want of a substantial federal question
without doubt reject the specific challenges presen-
ted in the statement of jurisdiction. Mandel v.
Bradley, 432 U.S. 173, 176 (1977) (per curiam);
see also Massachusetts, 682 F.3d at 8 (Baker is
2013 WL 267026 (U.S.) Page 17
precedent binding on lower courts and thus fore-
closes arguments that presume or rest on a consti-
tutional right to same-sex marriage).
This Court subsequently considered an equal pro-
tection challenge to a sexual orientation classifica-
tion on plenary review and applied rational basis re-
view. See Romer v. Evans, 517 U.S. 620 (1996).
Romer involved a voter-enacted referendum in Col-
orado known as Amendment 2, which prohibit[ed]
all legislative, executive or judicial action at any
level of state or local government designed to pro-
tect the named class of homosexual persons or
gays and lesbians. Id. at 624. The Colorado Su-
preme Court applied strict scrutiny to invalidate
Amendment 2. Id. at 625.
Despite the Colorado Supreme Court's application
of strict scrutiny, this Court reviewed Amendment
2 under the rational basis test, which applies when a
law neither burdens a fundamental right nor tar-
gets a suspect class. Id. at 631. Under that test,
*27 legislation is upheld so long as it bears a ra-
tional relation to some legitimate end. Id. This
Court held that Amendment 2 fails, indeed defies,
even this conventional inquiry. Id. at 632
(emphasis added). See also id. at 635 (concluding
that a law must bear a rational relationship to a le-
gitimate governmental purpose, and Amendment 2
does not. (citation omitted)). Thus, even in the
face of the protestations of the dissent that it was
applying something other than rational basis re-
view, see id. at 651 (Scalia, J., dissenting), the
Court made clear that it was applying conventional
rational basis review, not any form of heightened
scrutiny, to the sexual orientation classification be-
fore it in Romer.
In Lawrence v. Texas, 539 U.S. 558 (2003), this
Court once again declined to apply heightened scru-
tiny. Lawrence struck down a Texas statute that
criminalized intimate sexual conduct between two
persons of the same sex, while not reaching oppos-
ite-sex couples engaging in the same conduct.
Rather than addressing that differential treatment
under the Equal Protection Clause, the Court de-
cided the case under the Due Process Clause and in-
validated the Texas statute and overruled Bowers v.
Hardwick, 478 U.S. 186 (1986). The Lawrence
Court emphasized the limited nature of that due
process holding and specified that it was not hold-
ing that the government must give formal recogni-
tion to any relationship that homosexual persons
seek to enter. 539 U.S. at 578.
Justice O'Connor preferred to decide the case under
the Equal Protection Clause and, consistent with
Romer, applied rational basis review. She explained
that her analysis of the Texas law does *28 not
mean that other laws distinguishing between het-
erosexuals and homosexuals would similarly fail
under rational basis review. Texas cannot assert any
legitimate state interest here, such as preserving
the traditional institution of marriage. Id. at 585
(O'Connor, J., concurring in the judgment)
(emphasis added).
Although the court of appeals here applied
heightened scrutiny to DOMA, the traditional
factors this Court looks to in ascertaining the appro-
priate level of equal protection scrutiny do not sup-
port that conclusion. See Part III, infra. Rather, the
proper result under this Court's precedents and the
law of every other Circuit to consider the question
is that rational basis review applies. As shown next,
multiple rational bases support Congress' decision
to employ the traditional definition of marriage for
federal-law purposes.
II. Multiple Rational Bases Support DOMA And Its
Decision To Retain The Traditional Definition Of
Marriage For Federal-Law Purposes.
Rational basis review is a paradigm of judicial re-
straint. FCC v. Beach Commc'ns, Inc., 508 U.S.
307, 313-14 (1993). [T]he Constitution presumes
that even improvident decisions will eventually be
rectified by the democratic process. Cleburne, 473
U.S. at 440. Thus, judicial intervention is gener-
ally unwarranted no matter how unwisely we may
think a political branch has acted. Vance v. Brad-
ley, 440 U.S. 93, 97 (1979). The judicial role is
2013 WL 267026 (U.S.) Page 18
modest precisely because rational basis is the most
relaxed and tolerant form of judicial scrutiny under
the Equal Protection Clause. *29City of Dallas v.
Stanglin, 490 U.S. 19, 26 (1989). The statute enjoys
a strong presumption of validity, and the chal-
lenger bears the burden to negative every con-
ceivable basis which might support it without re-
gard to whether the conceived reason for the chal-
lenged distinction actually motivated the legis-
lature. Beach, 508 U.S. at 314-15 (quoting
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.
356, 364 (1973)); see also Armour v. City of Indi-
anapolis, 132 S. Ct. 2073, 2080-81 (2012).
As noted, deference is particularly strong when it
comes to reviewing the work of the two coordinate
political branches of the federal government. And
deference is at its zenith when it comes to statutory
definitions and other line-drawing exercises such as
DOMA Section 3. This Court has recognized that in
formulating definitions or establishing categories of
beneficiaries, Congress had to draw the line some-
where, Beach, 508 U.S. at 316, which inevitably
requires that some persons who have an almost
equally strong claim to favored treatment be placed
on different sides of the line. Mathews v. Diaz,
426 U.S. 67, 83 (1976); see Schweiker v. Wilson,
450 U.S. 221, 238 (1981) (prescribing extra defer-
ence for statutory distinctions that inevitably in-
volve[] the kind of line-drawing that will leave
some comparably needy person outside the favored
circle (footnote omitted)). The Court has applied
this deferential approach not just to economic legis-
lation, but also to benefits legislation, e.g., Sch-
weiker, and even to government determinations of
who or what constitutes a family, Village of Belle
Terre v. Boraas, 416 U.S. 1, 8 (1974) (upholding
on rational basis review zoning regulation defining
unmarried couples *30 as families permitted to
live together, but prohibiting cohabitation by larger
groups). In such cases, Congress' decision where to
draw the line is virtually unreviewable. Beach,
508 U.S. at 316.
Applying this deferential review to DOMA, it is
clear that Congress, when confronting the unpre-
cedented phenomenon of states beginning to experi-
ment with the traditional definition of marriage, had
and maintains multiple rational bases to retain the
traditional definition as the operative definition for
purposes of federal law.
A. DOMA Rationally Preserves Each Sovereign's
Ability to Define Marriage for Itself at a Time
When States Are Beginning to Experiment with the
Traditional Definition.
When Congress enacted DOMA in 1996, it con-
fronted a unique phenomenon. Up until that point,
every state in the nation defined marriage in tradi-
tional terms as a union between a man and a wo-
man. There was little doubt that when Congress
used terms like marriage, married, and
spouse in federal statutes, it too had the tradition-
al definition in mind. But Congress did not even
need to consider whether it preferred a uniform fed-
eral definition of marriage or instead preferred to
defer to the states, because every state adopted the
same, traditional approach. Only as that began to
change did Congress consider DOMA.
The Hawaii Supreme Court's decision in Baehr
raised the prospect that some states would begin to
experiment with the traditional definition and ex-
pand it to include same-sex couples. At least in *31
Hawaii, the impetus for this change came not from
the democratic process, but from the state courts'
interpretation of the state constitution. And in our
federalist system, the prospect that one state would
alter the traditional definition raised the distinct
prospect that one state could effectively change the
law for other states via full faith and credit prin-
ciples - and for the federal government to the extent
federal law simply borrowed the state's definition.
DOMA's two operative provisions responded to this
unprecedented dynamic in a manner that preserved
each sovereign's ability to define marriage for it-
self. Section 2 preserved each state's ability to
define marriage as it preferred by ensuring that any
one state's definition would not trump another
2013 WL 267026 (U.S.) Page 19
state's judgment by operation of full faith and credit
principles. In a similar fashion, Section 3 ensured
that federal law would not simply borrow whatever
definition or redefinition a state chose to adopt, but
instead that the federal government would distinct-
ively define marriage for federal-law purposes only
and would retain the traditional definition.
Congress' approach in DOMA was a balanced one
that fully reflects and respects our federalist sys-
tem. Congress did not attempt to override any
state's decision to experiment with the definition of
marriage or deem any particular redefinition of
marriage irrational. But at the same time Congress
recognized that states could rationally decide to ex-
pand the traditional definition of marriage to in-
clude same-sex couples, it also recognized that oth-
er jurisdictions, including the federal government
*32 for uniquely federal purposes, could rationally
decide to retain the traditional definition. DOMA
permitted states to perform their role as
laboratories of democracy, while at the same time
ensuring that no one state's experiment would be
imposed on other states or on the federal govern-
ment.
DOMA thus reflects an interest in ensuring that, at
a time of unprecedented reconsideration of the tra-
ditional definition of marriage, each sovereign in
our federal system may decide this important issue
for itself. That surely is a rational indeed an import-
ant and vital - basis for action in our system of dual
federalism.
And the federal government's decision to retain the
traditional definition as its own also surely was a
rational one. As shown in more detail below, at the
time of DOMA's enactment every state retained the
traditional definition and that remains the approach
of the majority of the states. It plainly was rational
for Congress to adopt the majority definition as its
own, especially when that traditional definition was
the underlying assumption of countless past federal
legislative decisions, and when altering that defini-
tion would have unpredictable fiscal effects and
would undermine uniquely federal interests in the
uniformity of federal benefits and burdens. Further,
Congress could rationally retain the traditional
definition for all the reasons a state could rationally
retain the traditional definition. While the federal
definition of marriage does not have the same direct
impact on the institution as a state decision, it has
some effect. Assuming that states continue to have
the flexibility to retain the *33 traditional defini-
tion, there is no reason why the federal government
does not have the same latitude.
B. DOMA Ensures National Uniformity in Eligibil-
ity for Federal Benefits and Programs Based on
Marital Status.
As long as all the states retained the traditional
definition of marriage, there was no need for the
Congress to choose between having a uniform fed-
eral definition for federal benefits and burdens and
simply borrowing the state definition of marriage.
But when Hawaii was on the verge of becoming the
first state to experiment with altering the traditional
definition, Congress had to choose between retain-
ing a uniform federal rule or continuing simply to
borrow state definitions in a manner that would cre-
ate the possibility of disparities in federal benefits
across jurisdictions. Congress chose the former, and
that decision was eminently rational.
In a nation where some states would recognize
same-sex marriage and other states would not, Con-
gress rationally could desire to maintain uniformity
in the federal approach to this question, rather than
adopting a patchwork of disparate state-law rules.
DOMA Section 3 accomplishes exactly that, ensur-
ing that similarly-situated couples will have the
same federal benefits regardless of the state in
which they happen to reside. The uniform federal
rule reaffirmed by DOMA also avoids a confusing
situation in which same-sex couples would lose (or
gain) federal marital status simply by moving
between states with different policies on recogni-
tion of same-sex marriages. See, e.g., 142 Cong.
Rec. 10468 (1996) (Sen. Nickles) (DOMA will
eliminate legal uncertainty concerning Federal *34
benefits); id. at 22459 (Sen. Ashcroft) (finding it
2013 WL 267026 (U.S.) Page 20
very important to prevent people in different
States [from having] different eligibility to receive
Federal benefits). Likewise, a uniform federal rule
also avoids the prospect that a federal employee -
military or civilian - would resist moving from one
jurisdiction to another for fear it would affect his or
her federal benefits or tax status.
The adoption of a uniform federal rule also serves
the government's rational interest in easing admin-
istrative burdens. While it may seem a simple mat-
ter to determine which jurisdictions have recog-
nized same-sex marriage, this case illustrates that
the issue is far more complicated. Ms. Windsor's
claim to a marital exemption from the estate tax
does not turn on New York's very public adoption
of laws permitting same-sex marriage in 2011 but,
rather, on obscure, and as-yet not definitively
settled, choice-of-law principles concerning New
York's recognition of foreign marriage certificates
in 2009. Ms. Windsor filed her claim here before
New York recognized same-sex marriage, and her
success depends on whether New York courts
would have recognized a Canadian marriage certi-
ficate issued to a same-sex couple at a time when
New York would not issue such a certificate itself.
If her claim is successful, the federal government
would have to confront similar choice-of-law ques-
tions in all the jurisdictions that retain the tradition-
al definition. It was certainly rational for the federal
government to prefer a uniform federal rule to the
vagaries and difficulties of undertaking a multitude
of such complex choice-of-law determinations.
*35 When Hawaii threatened to break up the uni-
formity of the states' definition of marriage, Con-
gress essentially had two decisions to make. First, it
had to decide between adopting a uniform federal
rule or borrowing state definitions in a way that
would produce a disparity in federal benefits. It was
clearly rational for Congress, with its unique con-
cern for treating citizens in Oklahoma the same as
citizens in Hawaii, to choose the former. Second,
once Congress decided to adopt a uniform rule, it
had to decide whether to retain the traditional defin-
ition and the approach of all 50 states at the time, or
to alter the traditional definition to include same-
sex couples. While either choice would have been
rational, adopting the overwhelming majority ap-
proach surely was a permissible option. By the
same token, if at some future point all but a handful
of jurisdictions recognize same-sex marriages, it
would be entirely rational for Congress to change
the law and adopt that majority approach as the uni-
form rule. In short, the rationality of the federal
government interest in uniformity is independent of
the rule adopted.
Despite the rationality of preferring a uniform fed-
eral rule and adopting the majority approach as the
federal rule, the courts below regarded Congress'
interest in a uniform federal-law definition of mar-
riage as at best suspicious, Supp. App. 24a, and
at worst an illegitimate intrusion into state au-
thority over marriage, Supp. App. 25a-26a. But
such suspicions ignore both the unprecedented situ-
ation Congress confronted and basic tenets of feder-
alism. Suspicion of Congress' adoption of a uniform
definition seems to stem from Congress' *36 tradi-
tional willingness to borrow state law definitions.
But when state definitions of marriage vary only in
the details, it is understandable and commendable
for federal law to borrow those definitions. On the
other hand, when a state is on the verge of making a
fundamental change to the definition, that creates a
need for Congress to choose between uniformity
and borrowing (a need that simply did not exist be-
fore), and as demonstrated above, it is certainly ra-
tional to choose the former.
The suggestion that states somehow have special
constitutional authority to define what the words
marriage and spouse mean for purposes of fed-
eral law runs entirely counter to our basic constitu-
tional structure. Indeed, the presumption is the op-
posite. It is well established that, unless Congress
plainly manifests an intent to incorporate diverse
state laws into a federal statute, the meaning of [a]
federal statute should not be dependent on state
law. United States v. Turley, 352 U.S. 407, 411
2013 WL 267026 (U.S.) Page 21
(1957); see also Helvering v. Davis, 301 U.S. 619,
645 (1937) (When money is spent to promote the
general welfare, the concept of welfare is shaped
by Congress, not the states.); see also Massachu-
setts, 682 F.3d at 12 (Congress surely has an in-
terest in who counts as married. The statutes and
programs that section 3 governs are federal regimes
and their benefit structure requires deciding who
is married to whom. That Congress has traditionally
looked to state law to determine the answer does
not mean that the Tenth Amendment or Spending
Clause require it to do so.).
The genius of the framers was in establishing
two orders of government, each with its own direct
*37 relationship, its own privity, its own set of mu-
tual rights and obligations to the people who sustain
it and are governed by it. U.S. Term Limits, Inc. v.
Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J.,
concurring). Thus, when it comes to defining mar-
riage for purposes of state law, the states may well
enjoy constitutional power to make such determina-
tions without federal interference. But DOMA does
not interfere with or override state law, and Section
2 affirmatively promotes each state's interest in de-
ciding this important issue for itself. At the same
time, nothing in our federalism prevents the fed-
eral sovereign from exercising its authority to inde-
pendently determine the meaning of words in its
own law. To be sure, Congress may choose to bor-
row state-law definitions as a matter of cooperative
federalism - and it historically has done so in many,
but far from all, contexts with respect to marriage
definitions. See supra at 4-6. But the notion that
Congress is somehow constitutionally required to
do so - that state law can reverse preempt con-
trary federal statutes in this area, and eliminate
what otherwise would be the legitimate federal in-
terest in uniform federal legal rules of nationwide
applicability - is wholly unprecedented and foreign
to our constitutional tradition.
C. DOMA Preserves Past Legislative Judgments,
Conserves Financial Resources, and Avoids Uncer-
tain and Unpredictable Effects on the Federal Fisc.
Congress' decision to retain the traditional federal
definition as the uniform federal rule in 1996 was
supported by a number of other rational bases that
are uniquely federal in nature. First, retaining the
*38 traditional definition preserved the legislative
judgments of earlier Congresses. Congress recog-
nized that whatever the future held for the defini-
tion of marriage, the multitude of federal statutes
already on the books that used the terms marriage
or spouse intended to incorporate the traditional
definition of marriage. In some cases, that intent
was explicit as statutes included references to
husband and wife or other terms clearly incorpor-
ating the traditional definition. In other cases, the
legislative judgment reflected the traditional defini-
tion implicitly, because the definition was uni-
formly applied. See, e.g., Adams, 486 F. Supp. at
1122 (The term marriage necessarily and ex-
clusively involves a contract, a status, and a rela-
tionship between persons of different sexes. That is
the way the term marriage is defined in every leg-
al source that I have examined, starting with
Black's Law Dictionary.). But in every case, the
Congress that enacted DOMA in 1996 knew that
each of the existing references to marriage in the
United States Code, many of which were the
product of legislative compromise, reflected the tra-
ditional definition. Against that backdrop, it cer-
tainly was rational for Congress to preserve those
past legislative judgments and expressly adopt the
traditional definition as an accurate reflection of
past Congresses' intent when they used the defined
terms in federal law.
Congress' retention of the traditional definition of
marriage also rationally avoided uncertain and un-
predictable (but presumed negative) effects on the
federal fisc. In enacting DOMA, Congress recog-
nized that a great many financial benefits from *39
the government turn on whether one is married
for purposes of federal law. See House Rep. 18. In
DOMA, Congress made the conscious decision not
to expand the category of beneficiaries just because
a state chose to expand its definition of marriage.
See id. (stating that DOMA will preserve scarce
2013 WL 267026 (U.S.) Page 22
government resources, surely a legitimate govern-
ment purpose); 142 Cong. Rec. 22443 (1996)
(Sen. Gramm) (DOMA prevents a new set of be-
nefits and expenses which have not been planned or
budgeted for under current law).
Congress operated on the assumption that expand-
ing the definition of marriage would have a sub-
stantial net negative effect on the federal fisc. See
id. at 22448 (Sen. Byrd) (changing definition of
marriage could cost federal government hundreds
of millions of dollars, if not billions); see also
supra at 9-10. The exact net effect is uncertain be-
cause although some benefits are extended exclus-
ively to married couples, other laws operate as a
marriage penalty or save the federal government
funds if a marriage makes individuals ineligible for
means-tested programs based on joint income. But
Congress could rationally conclude that the net ef-
fect would be negative (if for no other reason than
couples with a financial disincentive to do so might
be less inclined to officially tie the knot), and in all
events Congress could rationally decide to avoid a
potentially large and uncertain effect that would
have radically different impacts across federal
agencies. See Massachusetts, 682 F.3d at 9
(explaining that under rational basis standard,
challenge to DOMA cannot prevail because
Congress could rationally have believed that
DOMA *40 would reduce costs).
[FN8]
Since
DOMA would preserve the status quo ante of
providing federal benefits only to couples married
under the traditional definition, Section 3 would
avoid this uncertain and unpredictable effect.
[FN9]
This Court has recognized *41 that when Congress
declines to extend benefits to those not previously
eligible - as it did in DOMA - such actions are sup-
ported by the government's rational interest in pro-
ceeding cautiously and protecting the fisc. Bowen
v. Owens, 476 U.S. 340, 348 (1986).
FN8. Ms. Windsor disputes DOMA's cost
savings, pointing to a Congressional
Budget Office report published in 2004
(eight years after DOMA's enactment). See
Cong. Budget Office, The Potential
Budgetary Impact of Recognizing Same-
Sex Marriages (2004), http://
www.cbo.gov/sites/default/files/cbofiles/ft
pdocs/
55xx/doc5559/06-21-samesexmarriage.pdf.
But the Second Circuit correctly concluded
that it was Congress' prerogative to find
that DOMA will achieve a net benefit to
the Treasury. App. 27a. The First Circuit
likewise concluded that avoiding an uncer-
tain impact on the federal fisc provides a
rational basis for DOMA despite the CBO
report. See Massachusetts, 682 F.3d at 9.
Furthermore, the cursory ten-page CBO re-
port - which acknowledged that its
estimates are highly uncertain (at 3) - ap-
pears to make a critical analytical error: In
claiming that many same-sex couples
would become ineligible for federal
means-tested benefits after their incomes
were combined (as marriage would re-
quire), the report seemingly neglects to
consider that many couples likely would
avoid this financial hit simply by not mar-
rying. Cf. id. (how many same-sex part-
ners would marry if allowed is unknown).
FN9. The Second Circuit viewed DOMA
not as preserving the status quo, but as a
benefit withdrawal because it function-
ally eliminated longstanding federal recog-
nition of all marriages that are properly
ratified under state law. Supp. App. 27a.
But that plainly is wrong because it ignores
the state of the world in which Congress
acted in 1996 in which the federal govern-
ment had never extended a federal marital
benefit to a same-sex couple. It also
largely begs the question (and ignores
Congress' bipartisan judgment in DOMA)
by assuming that Congress' dominant in-
tent had always been to borrow state law
whatever its content rather than employ the
traditional definition, notwithstanding the
2013 WL 267026 (U.S.) Page 23
numerous federal statutes that by their
terms apply only to opposite-sex couples,
see supra at 4-6.
[T]he Constitution does not empower this Court to
second-guess officials charged with the difficult
responsibility of allocating limited public welfare
funds among the myriad of potential recipients.
Dandridge v. Williams, 397 U.S. 471, 487 (1970).
And here, there is no denying that a redefinition of
marriage by a substantial number of states would
have a significant, if not entirely predictable, effect
on the federal budget. Thus, it is not surprising that
the First Circuit recognized that DOMA satisfies
traditional rational basis review because Congress
could rationally have believed that DOMA would
reduce costs. Massachusetts, 682 F.3d at 9.
D. Congress Rationally Proceeded with Caution
When Faced with the Unknown Consequences of
an Unprecedented Redefinition of Marriage, a
Foundational Social Institution, by a Minority of
States.
In enacting DOMA and adopting the traditional
definition as the uniform federal rule, Congress re-
cognized that the institution of marriage as between
a man and a woman is, to borrow this Court's words
from another context, deeply embedded in the his-
tory and tradition of this country and has become
part of the fabric of our society. Marsh v. Cham-
bers, 463 U.S. 783, 786, 792 (1983). Congress ra-
tionally could have regarded any significant change
in the definition of this bedrock *42 institution as
having potentially significant consequences. Con-
gress thus rationally could have concluded that any
experimentation with such a longstanding institu-
tion should proceed first at the state level, while the
federal government retains the traditional definition
for its own purposes. See House Rep. 15.
Virtually no society anywhere has had even a single
generation's worth of experience with treating
same-sex relationships as marriages. There thus is
ample room for a wide range of rational predictions
about the likely effects of such recognition - on the
institution of marriage, on society as a whole, and
on distinctly federal interests. As two supporters of
same-sex marriage put it, whether same-sex mar-
riage would prove socially beneficial, socially
harmful, or trivial is an empirical question .
There are plausible arguments on all sides of the is-
sue, and as yet there is no evidence sufficient to
settle them. William Meezan & Jonathan Rauch,
Gay Marriage, Same-Sex Parenting, and America's
Children, 15 Future of Children 97, 110 (2005), ht-
tp:// futureofchil-
dren.org/futureofchildren/publications/docs/15_02_
06.pdf (endorsing limited, localized experiment
at state level). One of the great benefits of federal-
ism is that it allows states to adopt novel social
and economic experiments without risk to the rest
of the country. New State Ice Co. v. Liebmann,
285 U.S. 262, 310 (1932) (Brandeis, J., dissenting).
In light of the uncertainty about the consequences
of changing such a long-established institution, it
certainly was rational for Congress to decide to al-
low states to act as laboratories of democracy,
while the federal government awaited the results of
such state *43 experiments.
E. The Federal Government Could Rationally Re-
tain the Traditional Definition for the Same Reas-
ons States Can Rationally Retain that Definition.
Given its role in our federalist system, the federal
government has unique interests in adopting the tra-
ditional definition as the uniform national rule for
federal-law purposes. The national government has
a distinct interest in treating citizens in different
states similarly for federal-law purposes, without
regard to the vagaries of states' treatment of foreign
judgments, and has a distinct interest in making a
federal employee indifferent between working in
Maryland or Virginia. But in addition to such
uniquely national interests, Congress has the same
reasons for retaining the traditional definition as the
substantial majority of states that have done so. Al-
though the federal government does not have the
same direct effect on the institution of marriage as
the sovereigns that directly issue marriage certific-
2013 WL 267026 (U.S.) Page 24
ates, federal law and federal definitions can still ef-
fect such institutions at the margin. See Nat'l Fed.
Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579
(2012) ([T]he Federal Government [has] consider-
able influence even in areas where it cannot directly
regulate.). Thus, the federal government can retain
the traditional definition based on a rational belief
that doing so will rationally further the institution
of marriage in the long run. Indeed, the burden on
the challengers to DOMA is to explain why, if
states can rationally choose either to expand the tra-
ditional definition to include same-sex couples or
retain the traditional definition, the federal *44
government cannot rationally make the same
choice.
1. Providing a Stable Structure to Raise Uninten-
ded and Unplanned Offspring
Many states have chosen to retain the traditional
definition because of the intrinsic connection
between marriage and children. In enacting DOMA,
Congress recognized that, [s]imply put, govern-
ment has an interest in marriage because it has an
interest in children. House Rep. 13. Similarly, this
Court has repeatedly recognized that marriage's im-
portance is derived from its intrinsic connection to
procreation. See, e.g., Zablocki v. Redhail, 434 U.S.
374, 386 (1978) ([A] decision to marry and raise
the child in a traditional family setting must receive
[constitutional] protection.).
The link between procreation and marriage itself re-
flects a unique social difficulty with opposite-sex
couples that is not present with same-sex couples -
namely, the undeniable and distinct tendency of op-
posite-sex relationships to produce unplanned and
unintended pregnancies. Government from time im-
memorial has had an interest in having such unin-
tended and unplanned offspring raised in a stable
structure that improves their chances of success in
life and avoids having them become a burden on
society. See Yarborough v. Yarborough, 290 U.S.
202, 221 (1933) (In order that children may not
become public charges, the duty of maintenance is
one imposed primarily upon the parents); King v.
Smith, 392 U.S. 309, 330 (1968) (biological parents
have legal duties of support that government fills
when abdicated). Particularly in an earlier era when
employment opportunities for women were at best
limited, the prospect that *45 unintended children
produced by opposite-sex relationships and raised
out-of-wedlock would pose a burden on society was
a substantial government concern. Thus, the core
purpose and defining characteristic of the institu-
tion of marriage always has been the creation of a
social structure to deal with the inherently procreat-
ive nature of the male-female relationship. Spe-
cifically, the institution of marriage represents soci-
ety's and government's attempt to encourage current
and potential mothers and fathers to establish and
maintain close, interdependent, and permanent rela-
tionships, for the sake of their children, as well as
society at large. It is no exaggeration to say that the
institution of marriage was a direct response to the
unique tendency of opposite-sex relationships to
produce unplanned and unintended offspring.
Although much has changed over the years, the bio-
logical fact that opposite-sex relationships have a
unique tendency to produce unplanned and uninten-
ded offspring has not. While medical advances, and
the amendment of adoption laws through the demo-
cratic process, have made it possible for same-sex
couples to raise children, substantial advance plan-
ning is required. Only opposite-sex relationships
have the tendency to produce children without such
advance planning (indeed, especially without ad-
vance planning). Thus, the traditional definition of
marriage remains society's rational response to this
unique tendency of opposite-sex relationships. And
in light of that understanding of marriage, it is per-
fectly rational not to define as marriage, or extend
the benefits of marriage to, other relationships that,
whatever their *46 other similarities, simply do not
have the same tendency to produce unplanned and
potentially unwanted children. Indeed, Congress re-
cognized as much. See House Rep. 14 (Were it not
for the possibility of begetting children inherent in
heterosexual unions, society would have no particu-
lar interest in encouraging citizens to come together
2013 WL 267026 (U.S.) Page 25
in a committed relationship.).
Court decisions upholding traditional marriage laws
on the state level have employed similar reasoning.
See, e.g., Hernandez, 855 N.E.2d at 7 ([The Legis-
lature] could find that an important function of mar-
riage is to create more stability and permanence in
the relationships that cause children to be born. It
thus could choose to offer an inducement - in the
form of marriage and its attendant benefits - to op-
posite-sex couples who [marry]. The Legislature
could find that this rationale for marriage does not
apply with comparable force to same-sex
couples.); Citizens for Equal Prot. v. Bruning, 455
F.3d 859, 867-68 (8th Cir. 2006) (upholding Neb-
raska's marriage law based a government interest
in steering procreation into marriage ; noting that
the statute confer[s] the inducements of marital re-
cognition and benefits on opposite-sex couples,
who can otherwise produce children by accident,
but not on same-sex couples, who cannot); Con-
away v. Deane, 932 A.2d 571, 630-31 (Md. 2007).
DOMA's definition of marriage as between a wo-
man and a man is rational - and constitutional - be-
cause it is tailored to fit the social issue that the in-
stitution of marriage addresses. The equal protec-
tion guarantee is essentially a direction that *47 all
persons similarly situated should be treated alike.
Cleburne, 473 U.S. at 439. Opposite-sex couples
and same-sex couples, whatever their other similar-
ities, are not similarly situated with regard to their
propensity to result in unplanned pregnancies.
Principles of equal protection do not require Con-
gress to ignore this reality. Nguyen v. INS, 533
U.S. 53, 66 (2001).
2. Encouraging the Rearing of Children by Their
Biological Parents
One of the strongest presumptions known to our
culture and law is that a child's biological mother
and father are the child's natural and most suitable
guardians and caregivers, and that this family rela-
tionship should be encouraged. See Santosky v.
Kramer, 455 U.S. 745, 760 n.11, 766 (1982); Smith
v. Org. of Foster Families for Equal. & Reform,
431 U.S. 816, 843-47 (1977); Supp. App. 72a-73a
& n.11. To be sure, our tradition offers the same
protections for an adoptive parent-child relation-
ship, once it is formed. But nonetheless when both
biological parents want to raise their child, the law
has long recognized a distinct preference for the
child to be raised by those biological parents. Cf.
Smith, 431 U.S. 816 at 823. And this bedrock as-
sumption is grounded in common sense and human
experience: Biological parents have a genetic stake
in the success of their children that no one else
does. See Kristin Anderson Moore et al., Marriage
from a Child's Perspective: How Does Family
Structure Affect Children and What Can We Do
About It?, Child Trends Research Brief 1-2 (2002),
http://
www.childtrends.org/files/marriagerb602.pdf.
Of course, only relationships between opposite-sex
*48 couples can result in children being raised by
both of their biological parents. Therefore, when
government offers special encouragement and sup-
port for relationships that can result in mothers and
fathers jointly raising their biological children, it
rationally furthers its legitimate interest in promot-
ing this type of family structure in a way that ex-
tending similar regulation to other relationships
would not.
3. Promoting Childrearing by Both a Mother and a
Father
Finally, biological differentiation in the roles of
mothers and fathers makes it rational to encourage
situations in which children have one of each. As
this Court has recognized, the two sexes are not
fungible; a community made up exclusively of one
[sex] is different from a community composed of
both. United States v. Virginia, 518 U.S. 515, 533
(1996) (quotation marks omitted). Men and women
are different. So are mothers and fathers. Common
sense, and the experience of countless parents, in-
forms us that children relate and often react differ-
ently to mothers and fathers. It is thus rational for
governments to offer special encouragement for
2013 WL 267026 (U.S.) Page 26
family structures in which these differing parental
roles can complement each other. Moreover, the
different challenges faced by boys and girls as they
grow to adulthood make it at least rational to think
that children benefit from having parental role mod-
els of both sexes.
***
The court of appeals concluded that reserving a
special set of federal marital regulations and *49 in-
centives for opposite-sex couples has nothing to do
with the government interests in procreation and
childrearing, because extending the same regime to
same-sex couples would not change the availability
of benefits to opposite-sex couples. Supp. App.
29a-30a. But that is not obviously correct in a
world of limited resources and, in any event, is not
the proper inquiry under rational basis review. In an
equal protection challenge, a classification is ra-
tional if the inclusion of one group promotes a le-
gitimate governmental purpose, and the addition of
other groups would not. Johnson v. Robison, 415
U.S. 361, 383 (1974). Even if extending the defini-
tion of marriage to same-sex couples would not
harm opposite-sex couples in the least, the question
remains whether it was rational for Congress to
draw the line where it did. And because the institu-
tion of marriage arose in large measure in response
to a unique social difficulty that opposite-sex
couples, but not same-sex couples, posed, it was ra-
tional for Congress to draw the line where it did.
III. The Longstanding List Of Suspect And Quasi-
Suspect Classes Should Not Be Expanded To In-
clude Sexual Orientation.
While rational basis review is a paradigm of judi-
cial restraint, Beach, 508 U.S. at 314, the recogni-
tion of quasi-suspect and suspect classes has the op-
posite effect. It extracts certain issues from the nor-
mal democratic process and limits the ability of
states and the federal government to address those
issues through their political branches. Accord-
ingly, this Court has cautioned that the judiciary
must be very reluctant to establish new suspect
(or quasi-suspect) classes given our federal *50
system and our respect for the separation of
powers. Cleburne, 473 U.S. at 441. In keeping
with that admonition, this Court has not added to
the short list of suspect or quasi-suspect classes in
the last forty years, and indeed has rejected every
proposed such class during that span, including
mental disability, id. at 442-47, kinship, Lyng v.
Castillo, 477 U.S. 635, 638 (1986), age, Mass. Bd.
of Ret. v. Murgia, 427 U.S. 307 (1976), and
poverty, San Antonio Indep. Sch. Dist. v. Rodrig-
uez, 411 U.S. 1 (1973).
This Court has had opportunities to declare sexual
orientation a suspect class and has declined to do
so. See Massachusetts, 682 F.3d at 9 (noting that
this Court conspicuously failed to do so in Romer -
a case that could readily have been disposed by
such a demarche); App. 31a. The Second Circuit's
holding in this case that sexual orientation classific-
ations are quasi-suspect is truly an outlier - it is
contrary to the thrust of this Court's decisions and
directly conflicts with the decisions of eleven other
circuits holding that such classifications are not
subject to any heightened scrutiny. See supra at 13
n.4.
This Court has identified four relevant factors in
determining whether a class is suited for suspect or
quasi-suspect treatment. None of these factors ad-
equately supports adding sexual orientation to the
list, and perhaps the most important - the political
power to participate in the democratic process - tips
decisively against making sexual orientation the
first new suspect or quasi-suspect class in forty
years.
*51 A. Gays and Lesbians Are Far from Politically
Powerless.
More than twenty years ago, the Seventh and Ninth
Circuits recognized that homosexuals are not
without growing political power, and that [a]
political approach is open to them to pursue their
objectives. Ben-Shalom, 881 F.2d at 466; accord
High Tech Gays, 895 F.2d at 574. Whatever the
2013 WL 267026 (U.S.) Page 27
limits of that conclusion two decades ago, there can
be no serious doubt that the political power of gays
and lesbians has increased exponentially since then.
Today, same-sex marriage is supported by Presid-
ent Obama (who has called for DOMA's repeal),
Vice President Biden (who voted for DOMA as a
Senator in 1996 but has since changed his view),
and the Senate majority leader, the House minority
leader, and the Democratic Party's 2012 platform.
One-third of the Members of the U.S. House of
Representatives filed a brief in the court below at-
tacking both the wisdom and constitutionality of
DOMA.
Polling indicates that by 2011, the proportion of
Americans supporting same-sex marriage had in-
creased from 27% to 53% in a span of only 16
years. See Frank Newport, For First Time, Majority
of Americans Favor Legal Gay Marriage, Gal-
lup.com (May 20, 2011), ht-
tp://www.gallup.com/poll/147662/first-time-majorit
y-americans-favor-legal-gay-marriage.aspx. The
November 2012 elections witnessed a record num-
ber of openly gay candidates for Congress, and the
election of the first openly gay U.S. Senator.
Charles Mahtesian, A Record Number of Gay Can-
didates, POLITICO.com (Oct. 2, 2012),http://
www.politico.com/blogs/ charlie-*52 mahtesian/
2012/10/a-record-number-of-gay-candidates-13728
9.html. In that same election cycle, voters in Maine,
Maryland, and Washington state passed measures
allowing same-sex marriage, and Minnesota voters
defeated a proposed traditional marriage amend-
ment to the state constitution. The Maine result
demonstrates the capacity for the give and take of
the political process to change voters' minds, as the
Maine referendum effectively reversed the result of
a 2009 referendum. See Michael Falcone, Maine
Vote Repeals Gay Marriage Law, POLITICO.com
(Nov. 4, 2009), http://
www.politico.com/news/stories/1109/29119.html.
In all, nine states and the District of Columbia now
permit same-sex marriage. Although the initial pro-
cess of recognizing same-sex marriage was promp-
ted by judicial decisions interpreting state constitu-
tions (as Congress foresaw in 1996), more recent
gains have come via legislatures and at the polls
through referenda.
Nor have the successes been limited to the marriage
issue, as dramatically illustrated by the repeal of the
military's Don't Ask Don't Tell policy. See Don't
Ask Don't Tell Repeal Act of 2010, Pub. L. No.
111-321, 124 Stat. 3515, 10 U.S.C. 654 note.
Even more broadly, the Human Rights Campaign,
one of the nation's leading gay-rights organizations,
has been ranked the second most successful polit-
ical organization in the entire country by National
Journal. Human Rights Campaign Lauds 2008
Election Results, HRC.org (Nov. 4, 2008), ht-
tp://www.hrc.org/press-releases/entry/human-rights
-campaign-lauds-2008-election-results (citing Bara
Vaida and Neil Munro, Interest Groups-*53 Re-
versal of Fortunes, Nat'l J., Nov. 11, 2006). And
gays and lesbians represent nearly 20% of President
Obama's top fundraisers. Michelle Garcia & An-
drew Harmon, Obama's Power Gays, Advoc-
ate.com (Oct. 24, 2011), http://
www.advocate.com/news/dailynews/2011/10/24/ob
amas-power-gays; Dan Eggen, The Influence In-
dustry: Same-Sex Marriage Issue Shows Import-
ance of Gay Fundraisers, Wash. Post (May 9,
2012), http://
www.washingtonpost.com/politics/same-sex-marria
ge-debate-many-of- obamas-
top-fun-
draisers-
are-gay/2012/05/09/gIQASJYSDU_story.html.
Last but not least, the decision of the President and
Attorney General to stop defending and start attack-
ing DOMA itself demonstrates the remarkable
political clout of the same-sex marriage movement.
As the Chief Judge of the Second Circuit remarked
to the Department's representative at oral argument,
your presence here is like an argument against
your argument. Appendix to Response in Support
of Writ of Certiorari Before Judgment, No. 12-307,
37a (Oct. 10, 2012).
2013 WL 267026 (U.S.) Page 28
In short, gays and lesbians are one of the most in-
fluential, best-connected, best-funded, and best-
organized interest groups in modern politics, and
have attained more legislative victories, political
power, and popular favor in less time than virtually
any other group in American history. Characteriz-
ing such a group as politically powerless would be
wholly inconsistent with this Court's admonition
that a class should not be regarded as suspect when
the group has some ability to attract the attention
of the lawmakers. Cleburne, 473 U.S. at 445. Gays
and lesbians not only have the *54 attention of law-
makers, they are winning many legislative battles.
And the importance of this factor in the analysis
cannot be gainsaid. This Court has never definit-
ively determined which of the four factors is neces-
sary or sufficient, but given that the ultimate in-
quiry focuses on whether a group needs the special
intervention of the courts or whether issues should
be left for the democratic process, the political
strength of gays and lesbians in the political process
should be outcome determinative here.
B. Whether a Married Couple Is of the Opposite
Sex Is Relevant to the Government's Interests in
Recognizing Marriage.
This Court has also looked to the question whether
a group has distinguishing characteristics relev-
ant to the distinctions actually drawn. Whatever the
relevance of homosexuality in any other context,
the relevant distinguishing characteristic of same-
sex couples is their propensity to engage in rela-
tionships that do not produce unplanned and unin-
tended offspring. Citizens for Equal Prot., 455 F.3d
at 866-67 (quoting Cleburne, 445 U.S. at 441).
And, as explained supra, the evolution of marriage
as a response to the unique social concerns of the
unintended and unplanned offspring of opposite-sex
relationships makes this distinguishing characterist-
ic of same-sex relationships highly relevant. Id. at
867; see supra at 44-47.
C. Sexual Orientation Is Not an Immutable Char-
acteristic.
Sexual orientation differs in multiple dimensions
from any previously recognized suspect or quasi-
*55 suspect class. It is defined by a propensity to
engage in a certain kind of conduct; the cause of
that propensity is not well understood by science;
sexual orientation is not determinable at birth; for
at least some, sexual orientation is a fluid character-
istic capable of changing over a person's lifetime;
and the proposed class is difficult to define.
As courts have recognized, homosexuality differs
fundamentally from those [characteristics] defining
any of the recognized suspect or quasi-suspect
classes . The conduct or behavior of the members
of a recognized suspect or quasi-suspect class has
no relevance to the identification of those groups.
Woodward, 871 F.2d at 1076; Ben-Shalom, 881
F.2d at 464; accord High Tech Gays, 895 F.2d at
573-74. There is no precedent for creating a suspect
class that is based on the class' propensity to engage
in a certain kind of conduct.
Not only is sexual orientation different from every
recognized suspect class in that it is based on a
propensity to engage in certain conduct, the cause
of that propensity is not well understood. Accord-
ing to Ms. Windsor's own expert, Dr. Letitia Pe-
plau:
Currently, the factors that cause an individual to be-
come heterosexual, homosexual, or bisexual are not
well understood. Many theories have been proposed
but no single theory has gained prominence or is
definitively established by scientific research.
Today, most social and behavioral scientists view
sexual orientation as resulting from the interplay of
biological, psychological, and social factors.
*56 JA 500.
Thus, while sex, like race and national origin, is an
immutable characteristic determined solely by the
accident of birth, Frontiero v. Richardson, 411
U.S. 677, 686 (1973) (plurality), the same cannot
be said of sexual orientation. For some persons,
sexual orientation is fluid. And, as Dr. Peplau ad-
mits, a person's sexual orientation often cannot be
2013 WL 267026 (U.S.) Page 29
readily categorized as heterosexual, homosexual, or
perhaps bisexual. In fact, human experience often
defies such clear-cut categories. Linda D. Garnets
& Letitia Anne Peplau, A New Paradigm for Wo-
men's Sexual Orientation: Implications for Ther-
apy, 24 Women & Therapy 111, 113 (2001). In-
stead, according to the American Psychological As-
sociation, sexual orientations form a continuum,
from exclusive attraction to the other sex to exclus-
ive attraction to the same sex. Am. Psychological
Ass'n, Answers to Your Questions: For a Better Un-
derstanding of Sexual Orientation & Homosexual-
ity, http://
www.apa.org/topics/sexuality/orientation.aspx/. Fi-
nally, when considering homosexuality as a poten-
tial suspect class, the complexities involved
merely in defining the term would prohibit a de-
termination of suspect classification. Holloway v.
Arthur Andersen & Co., 566 F.2d 659, 663 (9th Cir.
1977) (declining to recognize transsexuals as a sus-
pect class).
D. The Histories of Discrimination Based on Race,
Ethnicity, Sex, and Legitimacy Are Different.
Finally, each of the recognized suspect and quasi-
suspect classes - racial minorities, aliens, women,
and those born out of wedlock - have suffered *57
discrimination for longer than history has been re-
corded. In contrast, as this Court noted in
Lawrence, there is no longstanding history in this
country of laws directed at homosexual conduct as
a distinct matter. 539 U.S. at 568. Indeed, the
concept of the homosexual as a distinct category of
person did not emerge until the late 19th century.
Id. As Ms. Windsor's own expert, Dr. George
Chauncey, has written, although antigay discrim-
ination is popularly thought to have ancient roots,
in fact it is a unique and relatively short-lived
product of the twentieth century. George Chaun-
cey, Why Marriage?: The History Shaping Today's
Debate Over Gay Equality 14 (2004). According to
Dr. Chauncey, [m]ost of the [discrimination] was
put in place between the 1920s and 1950s, and most
was dismantled between the 1960s and the 1990s.
Owen Keehnen, The Case for Gay Marriage: Talk-
ing with Why Marriage? Author George Chauncey,
GLBTQ.com (2004), http://
www.glbtq.com/sfeatures/interviewgchauncey.html
.
More important, unlike racial minorities and wo-
men, homosexuals as a class have never been polit-
ically disenfranchised - the kind of pervasive offi-
cial discrimination that most clearly supports sus-
pect class treatment by the courts. See United States
v. Carotene Prods. Co., 304 U.S. 144, 152 n.4
(1938).
[FN10]
FN10. Although heightened scrutiny is
clearly inappropriate, DOMA could sur-
vive even under that more demanding
standard. In our federalist system, it is
surely an important interest for each sover-
eign to be able to address an issue as divis-
ive and fast-moving as same-sex marriage
for itself. DOMA is narrowly tailored to
accomplish this important government in-
terest by preventing one state's decision
from dictating the result for other states or
the federal government.
*58 ***
In sum, the traditional factors this Court has as-
sessed in determining whether to recognize a new
quasi-suspect or suspect class are absent when it
comes to gays and lesbians. Perhaps most critically,
gays and lesbians have substantial political power,
and that power is growing. Victories at the ballot
box that would have been unthinkable a decade ago
have become routine. To be sure, those victories
have not been uniform and have come first in
blue states rather than red ones, but that is the
nature of the political process. There is absolutely
no reason to think that gays and lesbians are shut
out of the political process to a degree that would
justify judicial intervention on an issue as divisive
and fast-moving as same-sex marriage. As Judge
Straub observed, the definition of marriage is an
issue for the American people and their elected rep-
2013 WL 267026 (U.S.) Page 30
resentatives to settle through the democratic pro-
cess. Supp. App. 83a.
Indeed, the democratic process has substantial ad-
vantages over constitutionalizing this issue. Same-
sex marriage is being actively debated in legis-
latures, in the press, and at every level of govern-
ment and society across the country. That is how it
should be. These fora require participants on both
sides to persuade those who disagree, rather than
labeling them irrational or bigoted.
By contrast, courts can intervene in this robust de-
bate only to cut it short, Supp. App. 83a, and only
*59 by denouncing the positions of hundreds of
Members of Congress who voted for DOMA, of the
President who signed it, and of a vast swath of the
American people as not just mistaken or antiquated,
but as wholly irrational. That conclusion is plainly
unwarranted as a matter of constitutional law, and
judicially constitutionalizing the issue of same-sex
marriage is unwarranted as a matter of sound social
and political policy while the American people are
so actively engaged in working through this issue
for themselves. This Court should permit[] this de-
bate to continue, as it should in a democratic soci-
ety. Washington v. Glucksberg, 521 U.S. 702, 735
(1997).
CONCLUSION
For the foregoing reasons, the judgment of the court
of appeals should be reversed.
*1A TABLE OF CONTENTS
Relevant Constitutional and Statutory Provisions
U.S. Const. amend. V ... 1a
Defense of Marriage Act, 3, 1 U.S.C. 7 ... 2a
Defense of Marriage Act, 2, 28 U.S.C. 1738C ...
3a
*2A RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS
U.S. Const. amend V
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public
danger; nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor
shall private property be taken for public use,
without just compensation.
*3a Defense of Marriage Act, 3, 1 U.S.C. 7
In determining the meaning of any Act of Congress,
or of any ruling, regulation, or interpretation of the
various administrative bureaus and agencies of the
United States, the word marriage means only a
legal union between one man and one woman as
husband and wife, and the word spouse refers
only to a person of the opposite sex who is a hus-
band or a wife.
*4a Defense of Marriage Act, 2, 28 U.S.C.
1738C
No State, territory, or possession of the United
States, or Indian tribe, shall be required to give ef-
fect to any public act, record, or judicial proceeding
of any other State, territory, possession, or tribe re-
specting a relationship between persons of the same
sex that is treated as a marriage under the laws of
such other State, territory, possession or tribe, or a
right or claim arising from such relationship.
United States of America v. Windsor
2013 WL 267026 (U.S. ) (Appellate Brief )
END OF DOCUMENT
2013 WL 267026 (U.S.) Page 31
M.D. Pennsylvania.
Deb WHITEWOOD, et al., Plaintiffs,
v.
Michael WOLF, in his official capacity as Secret-
ary, Pennsylvania Department of Health, et al., De-
fendants.
No. 1:13cv1861.
Signed May 20, 2014.
Background: Plaintiffs, including eleven lesbian
and gay couples, one widow, and two teenage chil-
dren of one of aforesaid couples, brought 1983
action against Commonwealth of Pennsylvania,
challenging two provisions of state's Domestic Re-
lations Code that limited marriage to opposite-sex
couples and prohibited recognition of same-sex
marriages legally entered into in other jurisdictions.
Parties moved and cross-moved for summary judg-
ment.
Holdings: The District Court, John E. Jones III, J.,
held that:
(1) Supreme Court's summary dismissal in Baker v.
Nelson was no longer controlling precedent;
(2) plaintiffs sufficiently established that they
suffered actionable harms due to challenged provi-
sions;
(3) plaintiffs had fundamental right to marry, which
was infringed by same-sex marriage ban;
(4) non-recognition provision violated plaintiffs'
fundamental liberty interest in legal recognition of
their marriages;
(5) on equal protection challenge, intermediate
scrutiny was warranted; and
(6) challenged provisions did not survive intermedi-
ate scrutiny.
Plaintiff's motion granted.
West Headnotes
[1] Courts 106 96(3)
106 Courts
ure
106II(G) Rules of Decision
106k88 Previous Decisions as Controlling
or as Precedents
106k96 Decisions of United States
Courts as Authority in Other United States Courts
106k96(3) k. Supreme Court de-
cisions. Most Cited Cases
Courts 106 96(7)
106 Courts
ure
106II(G) Rules of Decision
106k88 Previous Decisions as Controlling
or as Precedents
106k96 Decisions of United States
Courts as Authority in Other United States Courts
106k96(7) k. Particular questions or
subject matter. Most Cited Cases
United States Supreme Court's summary dis-
missal in Baker v. Nelson, which challenged Min-
nesota's restriction of marriage to same-sex couples
as violative of due process and equal protection
rights under Fourteenth Amendment, was no longer
controlling precedent, and thus present 1983 suit
to challenge constitutionality of Pennsylvania stat-
utes limiting marriage to opposite-sex couples and
prohibiting recognition of same-sex marriages leg-
ally entered into in other jurisdictions presented
substantial question of federal law over which dis-
trict court had jurisdiction; since Baker v. Nelson,
Supreme Court had decided several cases demon-
strating that it no longer viewed constitutional chal-
lenges based on sex or sexual identity classifica-
tions as unsubstantial, and Supreme Court ulti-
mately held in Windsor that provision of Defense of
Marriage Act (DOMA) defining, for federal law,
marriage only as legal union between a man and
Page 1
--- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.)
(Cite as: 2014 WL 2058105 (M.D.Pa.))
a woman and spouse only as person of opposite
sex who was husband or wife, violated Fifth
Amendment's Due Process Clause. U.S.C.A.
Const.Amends. 5, 14; 42 U.S.C.A. 1983; 1
U.S.C.A. 7; 23 Pa.C.S.A. 1102, 1704.
92XXVII Due Process
tions
Most Cited Cases
Marriage 253 2
253 Marriage
Cited Cases
253 Marriage
Unions
253 Marriage
Unions
253k17.5(2) k. Effect of foreign union. Most
Cited Cases
Plaintiffs, including eleven lesbian and gay
couples, one widow, and two teenage children of
one of the aforesaid couples, sufficiently estab-
lished that they suffered actionable harms due to
two provisions of Pennsylvania's Domestic Rela-
tions Code that limited marriage to opposite-sex
couples and prohibited recognition of same-sex
marriages legally entered into in other jurisdictions,
as required to meet their burden of proof on 1983
claim to challenge those provisions as violative of
due process and equal protection, since those provi-
sions imposed disadvantage, separate status, and
stigma upon plaintiffs in eyes of state and broader
community, as well as daily harms in areas of
child-rearing, healthcare, taxation, and end-of-life
planning. U.S.C.A. Const.Amend. 14; 42 U.S.C.A.
1983; 23 Pa.C.S.A. 1102, 1704.
92XXVII Due Process
Due Process Clause of the Fourteenth Amend-
ment guarantees that all citizens have certain funda-
mental rights, comprised within the term liberty,
that are protected by the federal Constitution from
invasion by the states. U.S.C.A. Const.Amend. 14.
92XXVII Due Process
tions
Cases
Encompassed within the right to liberty under
the Due Process Clause of the Fourteenth Amend-
Page 2
--- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.)
(Cite as: 2014 WL 2058105 (M.D.Pa.))
ment is the fundamental right to marry. U.S.C.A.
Const.Amend. 14.
92XXVII Due Process
tions
Most Cited Cases
Marriage 253 2
253 Marriage
Cited Cases
253 Marriage
Unions
Plaintiffs, including eleven lesbian and gay
one of the aforesaid couples, had fundamental right
to marry under Due Process Clause of Fourteenth
Amendment, and such right was infringed upon by
provision of Pennsylvania's Domestic Relations
Code that limited marriage to opposite-sex couples;
such right was personal right to be exercised by in-
dividual, and concepts of history and tradition did
not dictate that same-sex marriage was excluded
from this right, and such right was not a new right,
but was rather right that plaintiffs were always
guaranteed by federal Constitution. U.S.C.A.
Const.Amend. 14; 23 Pa.C.S.A. 1102.
92XXVII Due Process
eral
Cases
History and tradition are the starting point, but
not in all cases the ending point, of the substantive
due process inquiry. U.S.C.A. Const.Amend. 14.
92XXVII Due Process
tions
Most Cited Cases
Fundamental right to marry, as protected by the
Due Process Clause of the Fourteenth Amendment,
encompasses the right to marry a person of one's
own sex. U.S.C.A. Const.Amend. 14.
92XXVII Due Process
tions
Most Cited Cases
Marriage 253 2
253 Marriage
Cited Cases
253 Marriage
Unions
Cited Cases
Page 3
--- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.)
(Cite as: 2014 WL 2058105 (M.D.Pa.))
Provision of Pennsylvania's Domestic Rela-
tions Code that prohibited recognition of same-sex
marriages legally entered into in other jurisdictions
violated Due Process Clause of Fourteenth Amend-
ment by robbing those individuals who were
already married of their fundamental liberty interest
in legal recognition of their marriages. U.S.C.A.
Const.Amend. 14; 23 Pa.C.S.A. 1704.
al
ation
92k3041 k. Similarly situated per-
sons; like circumstances. Most Cited Cases
Equal Protection Clause of the Fourteenth
Amendment effectively directs the like treatment of
similarly-situated persons. U.S.C.A. Const.Amend.
14.
Cases
Laws reviewed under the Equal Protection
Clause are subject to various levels of scrutiny de-
pending upon the classification imposed. U.S.C.A.
Const.Amend. 14.
tiny
92k3072 k. Alien status. Most Cited
Cases
92k3078 k. Race, national origin, or
ethnicity. Most Cited Cases
On a challenge under the Equal Protection
Clause, strict scrutiny is reserved for statutes en-
gendering suspect classifications, such as those
based on race, alienage, or national origin, and re-
quires the government to demonstrate that the law
is narrowly tailored to further compelling state in-
terests. U.S.C.A. Const.Amend. 14.
tiny
92k3061 k. Intermediate scrutiny in
Page 4
--- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.)
(Cite as: 2014 WL 2058105 (M.D.Pa.))
92k3074 k. Illegitimacy. Most
Cited Cases
92k3081 k. Sex or gender. Most
Cited Cases
Clause, to survive intermediate scrutiny, as applied
to classifications deemed quasi-suspect, such as
those based on sex or illegitimacy, a statutory clas-
sification must be substantially related to an im-
portant governmental objective. U.S.C.A.
Const.Amend. 14.
Reasonableness
On an equal protection challenge to statutory
classifications that do not target suspect or quasi-
suspect groups, courts apply rational-basis review,
which is satisfied if a statutory classification is ra-
tionally related to a legitimate governmental pur-
pose. U.S.C.A. Const.Amend. 14.
Questions
92VI(C)4 Burden of Proof
92k1032 Particular Issues and Applica-
tions
92k1040 k. Equal protection. Most
Cited Cases
Reasonableness
Clause, review for rationality is highly deferential
to the legislature, and the burden rests with the
challenger to negate every possible basis for the
law. U.S.C.A. Const.Amend. 14.
tiny
tiny
Certain criteria should be evaluated in determ-
ining whether a class qualifies as suspect or quasi-
suspect, for purposes of determining the appropriate
level of scrutiny to apply on an equal protection
challenge, querying whether the group: (1) has been
Page 5
--- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.)
(Cite as: 2014 WL 2058105 (M.D.Pa.))
subjected to a history of purposeful unequal treat-
ment; (2) possesses a characteristic that frequently
bears no relation to ability to perform or contribute
to society; (3) exhibits obvious, immutable, or dis-
tinguishing characteristics that define them as a dis-
crete group; and (4) is a minority or politically
powerless. U.S.C.A. Const.Amend. 14.
253 Marriage
Unions
253 Marriage
Unions
Cited Cases
Protracted historical record of injustices against
gay and lesbian persons in United States, including
in Pennsylvania, strongly favored recognition of
sexual orientation as quasi-suspect class, and thus
application of heightened scrutiny on equal protec-
tion challenge against two provisions of
Pennsylvania's Domestic Relations Code that lim-
ited marriage to opposite-sex couples and prohib-
ited recognition of same-sex marriages legally
entered into in other jurisdictions; that history in-
cluded government-sanctioned discrimination such
as criminalization of homosexual conduct and in
areas of immigration, citizenship, and employment,
as well as pervasive police harassment, portrayal in
media as perverts and child molesters, and victimiz-
ation in hate crimes. U.S.C.A. Const.Amend. 14; 23
Pa.C.S.A. 1102, 1704.
253 Marriage
Unions
253 Marriage
Unions
Cited Cases
Relation to ability factor weighed strongly in
favor of recognizing sexual orientation as a quasi-
suspect class, and thus in favor of applying
heightened scrutiny on equal protection challenge
against two provisions of Pennsylvania's Domestic
Relations Code that limited marriage to opposite-
sex couples and prohibited recognition of same-sex
since sexual orientation had no relevance to
plaintiffs' capabilities as citizens. U.S.C.A.
Const.Amend. 14; 23 Pa.C.S.A. 1102, 1704.
Page 6
--- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.)
(Cite as: 2014 WL 2058105 (M.D.Pa.))
253 Marriage
Unions
253 Marriage
Unions
Cited Cases
Distinguishing characteristic factor weighed in
favor of recognizing sexual orientation as a quasi-
suspect class, and thus in favor of applying
heightened scrutiny on equal protection challenge
against two provisions of Pennsylvania's Domestic
Relations Code that limited marriage to opposite-
sex couples and prohibited recognition of same-sex
since sexual orientation was so fundamental to
plaintiffs' identities that no individual should be re-
quired to abandon it. U.S.C.A. Const.Amend. 14;
23 Pa.C.S.A. 1102, 1704.
tiny
tiny
When determining whether a class qualifies as
suspect or quasi-suspect, for purposes of determin-
ing the appropriate level of scrutiny to apply on an
equal protection challenge, although the distin-
guishing characteristic factor is often phrased in
terms of immutability, the test is broader, encom-
passing groups whose members can hide the distin-
guishing trait and where the characteristic is subject
to change. U.S.C.A. Const.Amend. 14.
tiny
tiny
Political power factor for determining whether
a class qualifies as suspect or quasi-suspect, for
purposes of determining the appropriate level of
scrutiny to apply on an equal protection challenge,
centers on relative political influence and inquires
whether the discrimination is unlikely to be soon
rectified by legislative means. U.S.C.A.
Const.Amend. 14.
Page 7
--- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.)
(Cite as: 2014 WL 2058105 (M.D.Pa.))
tiny
tiny
While germane, the political power factor for
determining whether a class qualifies as suspect or
quasi-suspect, for purposes of determining the ap-
propriate level of scrutiny to apply on an equal pro-
tection challenge, is not essential for recognition as
a suspect or quasi-suspect class. U.S.C.A.
Const.Amend. 14.
Under political power factor for determining
whether sexual orientation should be considered
suspect or quasi suspect class, for purposes of de-
termining appropriate level of scrutiny to apply on
equal protection challenge against two provisions
of Pennsylvania's Domestic Relations Code that
limited marriage to opposite-sex couples and pro-
hibited recognition of same-sex marriages legally
entered into in other jurisdictions, question was not
whether homosexual individuals had achieved
political successes in part, as they clearly had, but
rather whether they had strength to politically pro-
tect themselves from wrongful discrimination.
U.S.C.A. Const.Amend. 14; 23 Pa.C.S.A. 1102,
1704.
253 Marriage
Unions
253 Marriage
Unions
Cited Cases
Political power factor weighed slightly in favor
of recognizing sexual orientation as a quasi-suspect
class, and thus in favor of applying heightened
scrutiny on equal protection challenge against two
provisions of Pennsylvania's Domestic Relations
Code that limited marriage to opposite-sex couples
and prohibited recognition of same-sex marriages
legally entered into in other jurisdictions, despite
gains that had been achieved by gay rights move-
ment, in view of general lack of statutory protec-
tions for homosexual individuals. U.S.C.A.
Page 8
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(Cite as: 2014 WL 2058105 (M.D.Pa.))
92k3082 k. Sexual orientation.
Most Cited Cases
Homosexual individuals compose a class that is
subject to heightened scrutiny on an equal protec-
tion challenge, and this class is quasi-suspect, as
opposed to suspect. U.S.C.A. Const.Amend. 14.
tiny
Quasi-suspect classifications are subject to
heightened review on an equal protection challenge
because the preeminent characteristic of the group
generally provides no sensible ground for differen-
tial treatment. U.S.C.A. Const.Amend. 14.
Marriage 253 2
253 Marriage
Cited Cases
253 Marriage
Unions
253 Marriage
Unions
Cited Cases
Commonwealth of Pennsylvania failed to ad-
vance any sufficiently important government in-
terest that was served by two provisions of its Do-
mestic Relations Code that limited marriage to op-
posite-sex couples and prohibited recognition of
same-sex marriages legally entered into in other
jurisdictions, and thus provisions did not survive in-
termediate scrutiny on equal protection challenge
asserted by eleven lesbian and gay couples, one
widow, and two teenage children of one of afore-
said couples; Pennsylvania advanced several in-
terests, but only defended two of those interests,
tradition and promotion of procreation, child-
rearing, and well-being of children, but it claimed
only that these interests were legitimate, advan-
cing no argument that these interests were
important, and it did not explain purported rela-
tionship between classification and these interests,
much less any persuasive justification. U.S.C.A.
[27] Marriage 253 17.5(1)
253 Marriage
Unions
That same-sex marriage causes discomfort in
some does not make its prohibition constitutional.
92XXVI(A)1 In General
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Cases
92XXVII Due Process
92XXVII(A) In General
92k3840 k. In general. Most Cited Cases
Past tradition cannot trump the bedrock consti-
tutional guarantees of due process and equal protec-
tion. U.S.C.A. Const.Amends. 5, 14.
West Codenotes
Held Unconstitutional23 Pa.C.S.A. 1102, 1704.
Dylan J. Steinberg, John S. Stapleton, Mark A.
Aronchick, Hangley Aronchick Segal Pudlin &
Schiller, Mary Catherine Roper, American Civil
Liberties Union of Pennsylvania, Molly M.
TackHooper, ACLU of Pennsylvania, Rebecca S.
Melley, Segal Pudlin & Schiller, Seth F. Kreimer,
Philadelphia, PA, James D. Esseks, Leslie Cooper,
American Civil Liberties Union Foundation, New
York, NY, Witold J. Walczak, American Civil
Liberties Union of PA, Pittsburgh, PA, Helen E.
Casa, Hangley Aronchick Segal Pudlin & Schiller,
Norristown, PA, for Plaintiffs.
Joel L. Frank, William H. Lamb, Lamb McErlane
P.C., West Chester, PA, Thomas J. Jezewski,
Swartz Campbell, LLC, Pittsburgh, PA, Frank A.
Chernak, John P. McLaughlin, Ballard Spahr An-
drews & Ingersoll LLP, Philadelphia, PA, for De-
fendants.
MEMORANDUM OPINION
JOHN E. JONES III, District Judge.
*1 Today, certain citizens of the Common-
wealth of Pennsylvania are not guaranteed the right
to marry the person they love. Nor does
Pennsylvania recognize the marriages of other
couples who have wed elsewhere. Hoping to end
this injustice, eleven courageous lesbian and gay
one of the aforesaid couples have come together as
plaintiffs and asked this Court to declare that all
Pennsylvanians have the right to marry the person
of their choice and consequently, that the Common-
wealth's laws to the contrary are unconstitutional.
We now join the twelve federal district courts
across the country which, when confronted with
these inequities in their own states, have concluded
that all couples deserve equal dignity in the realm
of civil marriage.
I. BACKGROUND
Plaintiffs in this action protest the constitution-
ality of two provisions of Pennsylvania's Domestic
Relations Code, which limit marriage to opposite-
sex couples and prohibit the recognition of same-
sex marriages legally entered into in other jurisdic-
tions (collectively, the Marriage Laws).
A. The Marriage Laws
In 1996, Pennsylvania was one of 14 states to
amend its laws to add anti-ceremony and anti-
recognition provisions applicable to same-sex
couples. The proliferation of such laws across the
countryanother 11 states added similar provisions
the following yearwas in response to litigation in
Hawaii, in which the Hawaii Supreme Court had
held the state's ban on same-sex marriage to be pre-
sumptively violative of the state's equal protection
clause. See Baehr v. Lewin, 74 Haw. 530, 852 P.2d
44 (1993).
In Pennsylvania, Representative C. Allan Egolf
of Perry County sponsored the marriage amend-
ment and described it as an expression of
Pennsylvania's traditional and longstanding policy
of moral opposition to same-sex marriages ... and
support of the traditional family unit. (Doc.
11518, p. 27). Ultimately, both houses passed the
legislation by overwhelming majorities, the House
by 177 to 16, and the Senate by 43 to 5.
The Pennsylvania Marriage Laws define
marriage as [a] civil contract by which one man
and one woman take each other for husband and
wife. 23 Pa.C.S. 1102. In addition, a provision
entitled Marriage between persons of the same
sex states as follows:
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It is hereby declared to be the strong and long-
standing public policy of this Commonwealth
that marriage shall be between one man and one
woman. A marriage between persons of the same
sex which was entered into in another state or
foreign jurisdiction, even if valid where entered
into, shall be void in this Commonwealth.
23 Pa.C.S. 1704. As stated, the Marriage
Laws have the effect of preventing same-sex
couples from marrying in Pennsylvania and nullify-
ing the marriages of same-sex couples legally mar-
ried elsewhere for purposes of recognition in the
Commonwealth.
B. The Plaintiffs
FN1
Plaintiffs are Deb and Susan Whitewood, and
their teenage daughters, A.W. and K.W.; Maureen
Hennessey; Lynn and Fredia Hurdle; Fernando
ChangMuy and Len Rieser; Julia Lobur and Marla
Cattermole; Dawn Plummer and Diana Polson;
Dara Raspberry and Helena Miller; Ron Gebhardts-
bauer and Greg Wright; Sandy Ferlanie and
Christine Donato; Heather and Kath Poehler; An-
gela Gillem and Gail Lloyd; and Edwin Hill and
David Palmer. Five of the couples are unmarried,
seeking to wed in Pennsylvania, and six of the
couples, as well as Maureen Hennessey, desire to
have their valid, out-of-state marriages recognized
by the Commonwealth.
*2 As a group, they represent the great di-
versity of the Commonwealth of Pennsylvania.
They hail from across the state, making their homes
in Allegheny, Dauphin, Centre, Northampton,
Delaware, Chester, and Philadelphia Counties.
They come from all walks of life; they include a
nurse, state employees, lawyers, doctors, an artist, a
newspaper delivery person, a corporate executive, a
dog trainer, university professors, and a stay-
at-home parent. They have served our country in
the Army and Navy. Plaintiffs' personal back-
grounds reflect a richness and diversity: they are
AfricanAmerican, Caucasian, Latino, and Asian;
they are Catholic, Baptist, Methodist, Jewish,
Quaker, Buddhist, and secular. In terms of age, they
range from a couple in their 30s with young chil-
dren, to retirees in their 60s. Many of the couples
have been together for decades.
As plainly reflected in the way they live their
lives, the plaintiff couples are spouses in every
sense, except that the laws of the Commonwealth
prevent them from being recognized as such.
For better, for worse
The plaintiff couples have shared in life's joys.
They have purchased homes together and blended
their property and finances. They have started fam-
ilies, welcoming children through birth and adop-
tion. Some of them have celebrated their commit-
ment to each other through marriage in other states,
sharing their wedding day with family and friends.
Yet, with each of these joys there has been con-
comitant hardship resulting from the Marriage
Laws. In terms of property ownership, all of the
couples face the payment of Pennsylvania's inherit-
ance taxincluding on half of the value of jointly-
owned homes and bank accountsat 15 percent,
the highest rate.
For those couples who have had children, like
Dawn Plummer and Diana Polson, the non-
biological parent has had to apply for a second-par-
ent adoption. Dawn expresses that she and Diana
are presently saving money so that she can legally
adopt their second son, J.P. Until the adoption is
complete, she has no legal ties to J.P., despite that,
together, she and Diana dreamed of welcoming him
to their family, prepared for his birth, and func-
tioned as a married couple long before having him.
Christine Donato, who together with Sandy Fer-
lanie completed a second-parent adoption in similar
circumstances, describes the process as long, ex-
pensive, and humiliating. The couples choosing to
adopt, like Fernando ChangMuy and Len Rieser,
had to undergo a two-step process, incurring double
the costs, in which one became their child's legal
parent and, later, the other petitioned for a second-
parent adoption. For the children of these couples,
it can be difficult to understand why their parents
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are not married or recognized as married. In the
words of Deb Whitewood, It sends the message to
our children that their family is less deserving of re-
spect and support than other families. That's a hurt-
ful message.
In addition, for the couples who have chosen to
marry out-of-state, they are acutely sensitive that
their marital status changes when they cross state
lines. Edwin Hill describes driving home to
Pennsylvania after wedding David Palmer in Maine
in 2013, elated to be traveling through all of the
northeastern states that recognize their marriage.
And then we crossed the Delaware River into
Pennsylvania, he recalls, and we looked at each
other and said, We're not married anymore. And
that hurt. Further, the married couples must still
identify themselves as single in Pennsylvania, for
example, on their state income taxes. Many have
remarked on the pain this causes them, describing
that it feels terrible, wrong, and like a denial
of [their] relationship to tick the box marked
single.
For richer, for poorer
*3 The plaintiff couples share their resources
and support each other financially. But Plaintiffs
commonly echo a sense of legal and economic vul-
nerability because of Pennsylvania's Marriage
Laws. Many of them have paid lawyers to draft pro-
tective documents, like wills and powers of attor-
ney, in efforts to emulate some of the protections
afforded to couples recognized as married. Susan
Whitewood estimates that her family has spent over
$10,000 in legal fees for the preparation and main-
tenance of such documents, which would not have
been necessary if the Commonwealth acknow-
ledged their marriage.
Angela Gillem and Gail Lloyd describe feeling
particularly insecure. Angela is a clinical psycholo-
gist and the primary bread-winner, while Gail is an
artist who does not draw a steady paycheck or con-
tribute to Social Security. Angela expresses that she
has taken every step [she] can to ensure [Gail's]
financial security but that they still cannot duplic-
ate all of the protections married couples receive,
and she live[s] every day with the fear that the
steps [she has] taken will not be enough to protect
Gail if something should happen to [her].
In sickness and in health
The plaintiff couples have supported each other
through illness and medical emergencies. Yet, be-
cause Pennsylvania considers them legal strangers,
they may be left vulnerable in times of crisis. Vari-
ous of the plaintiffs express anxiety at the possibil-
ity that they would not be allowed to comfort or
gain information about their partner's condition in
the event of an emergency, despite the fact that they
have prepared powers of attorney. Lynn Hurdle re-
members feelings of fear and helplessness when her
partner, Fredia, was admitted to the hospital for un-
expected surgery. Doctors began operating earlier
than planned, and when Lynn discovered Fredia's
hospital room to be empty, staff would not tell her
why Fredia had been taken early or where she was.
Until death do us part
The plaintiff couples demonstrate an intention
to live out their lives together. Plaintiff Maureen
Hennessey and her partner of 29 years, Mary Beth
McIntyre, present a powerful example. When Mary
Beth was diagnosed with inoperable Stage 4 lung
cancer, Maureen left her job to care for her and to
help run Mary Beth's business until her death. To-
wards the end of her life, Mary Beth required
Maureen's help to get out of bed and to the bath-
room, and to assist in self-care and administer med-
ications. They were married in Massachusetts after
Mary Beth fell ill, but because Pennsylvania does
not recognize their marriage, the line for surviving
spouse was left blank and Mary Beth was identi-
fied as never married on her death certificate.
Maureen was listed as the informant.
Wishing to have their relationships recognized
for what they are in the state they call home, and by
doing so to transcend the pain, uncertainty, and in-
justice visited by the Marriage Laws, Plaintiffs
brought this suit.
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II. PROCEDURAL HISTORY
*4 Plaintiffs commenced this action on July 9,
2013 against Defendants Governor Thomas
Corbett; Secretary of the Pennsylvania Department
of Health Michael Wolf; Attorney General Kath-
leen Kane; Register of Wills of Washington County
Mary Jo Poknis; and Register of Wills and Clerk of
Orphans' Court of Bucks County Donald Petrille,
Jr. (Doc. 1). Plaintiffs seek declarations that the
Marriage Laws violate both the Due Process and
Equal Protection Clauses of the Fourteenth Amend-
ment and a permanent injunction enjoining Defend-
ants from depriving Plaintiffs and other same-sex
couples of the right to marry and directing Defend-
ants to recognize same-sex marriages validly
entered into in other jurisdictions, as well as costs,
fees, and any other relief deemed appropriate by the
Court.
On September 30, 2013, Defendants filed mo-
tions to dismiss. During the pendency of those mo-
tions, Plaintiffs voluntarily dismissed Defendants
Corbett, Kane, and Poknis. Thereafter, on Novem-
ber 7, 2013, Plaintiffs filed an amended complaint
against Defendants Wolf and Petrille, and addition-
ally named Pennsylvania Secretary of Revenue Dan
Meuser, as a defendant. (Doc. 64). On November
15, 2013, we denied Defendants' motions to dis-
miss. (Doc. 67).
After the conclusion of discovery, the parties
filed cross-motions for summary judgment. (Docs.
113, 116). The motions have been fully briefed, and
the parties agree that there are no genuine disputes
of material fact.
FN2
Accordingly, the constitutional
issues presented to this Court are fully at issue and
ripe for our disposition.
FN3
III. PRELIMINARY CHALLENGES
Before undertaking the due process and equal
protection analyses at the heart of this matter, we
must first entertain two preliminary, yet threshold,
challenges to Plaintiffs' efforts to have the Marriage
Laws declared unconstitutional. First, Defendants
contend that pursuant to the Supreme Court's 1972
decision in Baker v. Nelson, there is no substantial
federal question implicated by any of Plaintiffs'
claims, and thus this Court lacks subject matter jur-
isdiction to hear the case. Second, Defendants as-
sert that Plaintiffs have failed to meet their burden
of proof under 42 U.S.C. 1983 because they have
not established a personal, cognizable harm caused
by the enforcement of the Marriage Laws. We shall
discuss each of these preliminary contentions seri-
atim.
A. Baker v. Nelson
[1] Although we previously considered, and re-
jected, Defendants' argument that we lack subject
matter jurisdiction over this matter pursuant to the
United States Supreme Court's summary dismissal
in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34
L.Ed.2d 65 (1972) (dismissing for want of a sub-
stantial federal question an appeal from a ruling by
the Supreme Court of Minnesota that a state law
ban on same-sex marriage did not violate the Due
Process Clause of the United States Constitution),
inasmuch as Defendants have reiterated this juris-
dictional challenge, we shall repeat herein our reas-
ons for rejecting this argument.
*5 There is no dispute that the summary dis-
missal in Baker is considered precedential, see
Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct.
2281, 45 L.Ed.2d 223 (1975) (dismissal for lack of
a substantial federal question is a decision on the
merits), however we, and our sister district courts
that have examined precisely this same issue, no
longer consider Baker v. Nelson controlling due to
the significant doctrinal developments in the four
decades that have elapsed since it was announced
by the Supreme Court. See id. ([I]f the Court has
branded a question as unsubstantial, it remains so
except when doctrinal developments indicate other-
wise[.]); Windsor v. United States, 699 F.3d 169,
17880 (2d Cir.2012); Geiger v. Kitzhaber,
131834, F.Supp.2d , 2014 WL 2054264,
2014 U.S. Dist LEXIS 68171 (D.Oregon May 19,
2014); Latta v. Otter, F.Supp.2d ,
, 2014 U.S. Dist. LEXIS 66417, at *2229,
2014 WL 1909999, at *710 (D.Idaho 2014); De-
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(Cite as: 2014 WL 2058105 (M.D.Pa.))
Boer v. Snyder, 973 F.Supp.2d 757, 774, n. 6
(E.D.Mich.2014); De Leon v. Perry, 975 F.Supp.2d
632, , 2014 WL 715741, at *810
(W.D.Tex.2014); Bostic v. Rainey, 970 F.Supp.2d
456, 46970 (E.D.Va.2014); McGee v. Cole,
F.Supp.2d , , 2014 WL 321122, at
*810 (S.D.W.Va.2014); Bishop v. U.S. ex rel.
Holder, 962 F.Supp.2d 1252, 127477
(N.D.Okla.2014); Kitchen v. Herbert, 961
F.Supp.2d 1181, 119495 (D.Utah 2013).
As we previously explained:
The jurisprudence of equal protection and sub-
stantive due process has undergone what can only
be characterized as a sea change since 1972. The
Supreme Court has decided several cases since
Baker which demonstrate that it no longer views
constitutional challenges based on sex or sexual
identity classifications as unsubstantial. For ex-
ample, when Baker was decided, intermediate
scrutiny was not yet in the Court's vernacular
and classifications based on illegitimacy and sex
were not yet deemed quasi-suspect. Windsor v.
United States, 699 F.3d 169, 179 (2d Cir.2012)
(citing Craig v. Boren, 429 U.S. 190, 218[, 97
S.Ct. 451, 50 L.Ed.2d 397] (1976) (Rehnquist, J.,
dissenting) (coining intermediate level scru-
tiny); Lalli v. Lalli, 439 U.S. 259, 26465[, 99
S.Ct. 518, 58 L.Ed.2d 503] (1978) (applying in-
termediate scrutiny to a classification based on il-
legitimacy, and describing how heightened scru-
tiny had been used for such classifications since
1976); Frontiero v. Richardson, 411 U.S. 677,
682[, 93 S.Ct. 1764, 36 L.Ed.2d 583] (1973)
(plurality) (identifying sex as a suspect class)).
The Supreme Court had also not yet ruled that a
classification [based on sexuality] undertaken for
its own sake lacked a rational basis. Romer v.
Evans, 517 U.S. 620, 635[, 116 S.Ct. 1620, 134
L.Ed.2d 855] (1996). Further, in 1972, govern-
ments could lawfully demean [homosexual per-
sons'] existence or control their destiny by mak-
ing their private sexual conduct a crime.
Lawrence v. Texas, 539 U.S. 558, 578[, 123 S.Ct.
2472, 156 L.Ed.2d 508] (2003). Finally, in June
of [2013], the Supreme Court held that a federal
statute defining marriage as only between hetero-
sexual couples violated the equal protection and
due process rights of same-sex couples who had
married in states where same-sex marriage is leg-
ally recognized. See United States v. Windsor,
570 U.S. [, 133 S.Ct. 2675, 186 L.Ed.2d
808] (2013).
*6 (Doc. 67, pp. 56). Defendants have presen-
ted us with no compelling reason to part company
with our previous determination, which has been
resoundingly echoed by our sister district courts
which have considered, and rejected, Baker's pre-
cedential value in light of doctrinal developments
in the areas of constitutional due process and equal
protection.
The only new component of Defendants' argu-
ment is their contention that, in view of the Su-
preme Court's recent decision to stay the District of
Utah's order in Kitchen v. Herbert, the Supreme
Court is bound to overturn the District of Utah's de-
cision.
FN4
See Herbert v. Kitchen, U.S. ,
134 S.Ct. 893, 187 L.Ed.2d 699 (2014). Simply put,
this constitutes nothing more than speculation on
the part of Defendants. Accordingly, we do not
agree with Defendants that this procedural order of
the Supreme Court forecasts pending disapproval of
the District of Utah's decision or its intention to re-
affirm the precedential value of Baker.
Based on the foregoing, we again reject the
contention that Baker v. Nelson presents a jurisdic-
tional bar to Plaintiffs' claims.
B. Burden of Proof under 42 U.S.C. 1983
FN5
[2] Defendants contend that Plaintiffs have
failed to meet their burden of proof with respect to
their constitutional claims because they have
offered no facts establishing that Defendants took
an action against them or are likely to be involved
in acts or omissions regarding the Marriage Laws
that caused or is likely to cause Plaintiffs harm. De-
fendants' argument focuses specifically on
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(Cite as: 2014 WL 2058105 (M.D.Pa.))
Plaintiffs' alleged failure to assert a cognizable in-
jury against them by virtue of enforcement of the
Marriage Laws. In view of the reasoning and hold-
ing in United States v. Windsor, U.S. , 133
S.Ct. 2675, 186 L.Ed.2d 808 (2013), this argument
is easily rejected.
Writing for the majority in Windsor, Justice
Kennedy opined that discrimination caused by the
non-recognition of same-sex couples' marriages
impose[s] a disadvantage, a separate status, and so
a stigma upon same-sex couples in the eyes of the
state and the broader community. Id. at 2693. Not
only are these stigmatizing harms cognizable, they
are profoundly personal to Plaintiffs and all other
gay and lesbian couples, married or not, who live
within the Commonwealth of Pennsylvania and
thus are subject to the Marriage Laws. Additionally,
and as discussed in greater detail above, see discus-
sion supra Part I.B., Plaintiffs suffer a multitude of
daily harms, for instance, in the areas of child-
rearing, healthcare, taxation, and end-of-life plan-
ning. With the Plaintiffs' stories in mind, we easily
find that Plaintiffs have sufficiently established that
they suffer actionable harms, and Defendants' argu-
ment to the contrary is rejected.
IV. SUBSTANTIVE QUESTIONS
Having resolved the preliminary challenges ad-
vanced by Defendants against Plaintiffs' claims, we
now turn to the substantive questions presented by
Plaintiffs in this action. Specifically, those ques-
tions are as follows: (1) whether the Marriage Laws
violate Plaintiffs' due process rights as guaranteed
by the Fourteenth Amendment to the United States
Constitution; and (2) whether the Marriage Laws
violate Plaintiffs' rights to equal protection as guar-
anteed by the Fourteenth Amendment to the United
States Constitution.
A. Due Process
1. Fundamental Right to Marry
*7 [3] The Due Process Clause of the Four-
teenth Amendment guarantees that all citizens have
certain fundamental rights comprised within the
term liberty [that] are protected by the Federal Con-
stitution from invasion by the States. Planned Par-
enthood v. Casey, 505 U.S. 833, 847, 112 S.Ct.
2791, 120 L.Ed.2d 674 (1992) (quoting Whitney v.
California, 274 U.S. 357, 373, 47 S.Ct. 641, 71
L.Ed. 1095 (1927)). The Supreme Court has de-
scribed the individual's right to liberty as the right
to define one's own concept of existence, of mean-
ing, of the universe, and of the mystery of human
life. Beliefs about these matters could not define
the attributes of personhood were they formed un-
der compulsion of the State. Id. at 851, 112 S.Ct.
2791.
[4] Encompassed within the right to liberty is
the fundamental right to marry. See Maynard v.
Hill, 125 U.S. 190, 205, 211, 8 S.Ct. 723, 31 L.Ed.
654 (1888) (characterizing marriage as the most
important relation in life and the foundation of
the family and of society, without which there
would be neither civilization nor progress); see
also Zablocki v. Redhail, 434 U.S. 374, 384, 98
S.Ct. 673, 54 L.Ed.2d 618 (1978) ([T]he right to
marry is of fundamental importance for all indi-
viduals.). The fundamental right to marry has been
historically and repeatedly recognized by the Su-
preme Court and was perhaps most eloquently de-
scribed in the concluding lines of Griswold v. Con-
necticut,
We deal with a right of privacy older than the
Bill of Rightsolder than our political parties,
older than our school system. Marriage is a com-
ing together for better or for worse, hopefully en-
during, and intimate to the degree of being sac-
red. It is an association that promotes a way of
life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or so-
cial projects. Yet it is an association for as noble
a purpose as any involved in our prior decisions.
381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d
510 (1965).
[5] The parties to this action certainly do not
dispute that the Due Process Clause of the Four-
teenth Amendment guarantees individuals the fun-
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(Cite as: 2014 WL 2058105 (M.D.Pa.))
damental right to marry. They stridently part com-
pany, however, over whether the fundamental right
to marry encompasses the right to marry a person of
the same sex. Plaintiffs contend that the fundament-
al right to marry belongs to the individual and pro-
tects each individual's choice of whom to marry. In
stark contrast, Defendants contend that, because
[t]he United States Supreme Court has never re-
cognized that the fundamental right to marry in-
cludes the right to marry a person of one's choice,
the Marriage Laws do not violate Plaintiffs' due
process rights. (Doc. 117, p. 20) (emphasis in ori-
ginal). Against this jurisprudential backdrop, and in
view of the parties' polarized positions, we are
tasked to consider and address the scope of the fun-
damental right to marry.
While the Supreme Court has cautioned that
the Due Process Clause only protects those funda-
mental rights and liberties which are, objectively,
deeply rooted in this Nation's history and tradition,
... and implicit in the concept of ordered liberty,
Washington v. Glucksberg, 521 U.S. 702, 72021,
117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal
citation and quotation marks ommitted), the Su-
preme Court has clarified the boundaries of the fun-
damental right to marry when tested by new societ-
al norms. Perhaps the most classic example of such
clarification is Loving v. Virginia, 388 U.S. 1, 87
S.Ct. 1817, 18 L.Ed.2d 1010 (1967). In Loving, the
Supreme Court struck down Virginia's laws against
interracial marriage, finding the state's anti-
miscegenation statutes violative of both the Due
Process and Equal Protection Clauses of the Four-
teenth Amendment. The Supreme Court character-
ized the right to marry as one that resides with the
individual and cannot be infringed by the State. Id.
at 12, 87 S.Ct. 1817.
*8 In a retrospective discussion of Loving, the
Supreme Court reaffirmed that its decision to find
Virginia's anti-miscegenation statutes unconstitu-
tional was entirely correct, despite a long historical
tradition in this nation of prohibiting interracial
couples from marrying. See Casey, 505 U.S. at
847848, 112 S.Ct. 2791; see also Bowers v. Hard-
wick, 478 U.S. 186, 216, 106 S.Ct. 2841, 92
L.Ed.2d 140 (1986) (Stevens, J., dissenting)
([N]either history nor tradition could save a law
prohibiting miscegenation from constitutional at-
tack.), overruled by Bowers, 478 U.S. 186, 106
S.Ct. 2841; Perry v. Schwarzenegger, 704
F.Supp.2d 921, 992 (N.D.Cal.2010) ([T]he Court
recognized that race restrictions, despite their his-
torical prevalence, stood in stark contrast to the
concepts of liberty and choice inherent in the right
to marry.).
Thereafter, in Turner v. Safley, 482 U.S. 78,
107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Supreme
Court reaffirmed that the right to marry resides with
the individual when it struck down a Missouri regu-
lation that prohibited inmates from marrying unless
the prison superintendent approved of the marriage.
The Supreme Court held that inmates retained their
fundamental right to marry even though they had a
reduced expectation of liberty during incarceration
and despite the fact that the marriage, at least ini-
tially, would not result in procreation. See id. at
9596, 107 S.Ct. 2254.
More recently, in Lawrence v. Texas, the Su-
preme Court confirmed that gay and lesbian indi-
viduals do not forfeit their constitutional liberties
simply because of their sexual orientation, noting
that our laws and tradition afford constitutional
protection to personal decisions relating to mar-
riage, procreation, contraception, family relation-
ships, child rearing, and education. 539 U.S. at
574, 123 S.Ct. 2472. Emphasizing that these rights
are personal to the individual, the Supreme Court
stated that [p]ersons in a homosexual relationship
may seek autonomy for these purposes, just as het-
erosexual persons do. Id. In June of last year, the
Supreme Court determined that the federal
DOMA's one man and one woman definition of
marriage was an unconstitutional interference with
the equal dignity of same-sex marriages legally re-
cognized in some states. Windsor, 133 S.Ct. at 2693
.
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[6][7] With the weight and impetus of the fore-
going Supreme Court jurisprudence in mind, this
Court is not only moved by the logic that the funda-
mental right to marry is a personal right to be exer-
cised by the individual, but also rejects Defendants'
contention that concepts of history and tradition
dictate that same-sex marriage is excluded from the
fundamental right to marry. The right Plaintiffs
seek to exercise is not a new right, but is rather a
right that these individuals have always been guar-
anteed by the United States Constitution. As aptly
explained by the Supreme Court in Lawrence:
Had those who drew and ratified the Due Process
Clauses of the Fifth Amendment or the Four-
teenth Amendment known the components of
liberty in its manifold possibilities, they might
have been more specific. They did not presume to
have this insight. They knew times can blind us
to certain truths and later generations can see that
laws once thought necessary and proper in fact
serve only to oppress. As the Constitution en-
dures, persons in every generation can invoke its
principles in their own search for greater free-
dom.
*9 539 U.S. at 57879, 123 S.Ct. 2472; see
also Roberts v. U.S. Jaycees, 468 U.S. 609, 620,
104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) ([T]he
Constitution undoubtedly imposes constraints on
the State's power to control the selection of one's
spouse....); Kitchen, 961 F.Supp.2d at 1203 (The
Constitution is not so rigid that it always mandates
the same outcome even when its principles operate
on a new set of facts that were previously unknown
[.]). Recognizing that [h]istory and tradition are
the starting point but not in all cases the ending
point of the substantive due process inquiry,
Lawrence, 539 U.S. at 572, 123 S.Ct. 2472 (citation
and internal quotation marks omitted), we specific-
ally hold that the fundamental right to marry as pro-
tected by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution en-
compasses the right to marry a person of one's own
sex.
FN6
We further hold that this fundamental
right is infringed upon by 23 Pa.C.S. 1102, which
defines marriage as between one man and one wo-
man and thus precludes same-sex marriage. Ac-
cordingly, 23 Pa.C.S. 1102 is unconstitutional.
2. Marriage Recognition
[8] Having reached the conclusion that same-
sex marriage is included within the fundamental
right to marry and is infringed upon by 23 Pa.C.S.
1102, it necessarily follows that 23 Pa.C.S. 1704,
which refuses to recognize same-sex marriages val-
idly performed in other jurisdictions, is also uncon-
stitutional. Specifically, Pennsylvania's non-
recognition law robs those of the Plaintiffs who are
already married of their fundamental liberty interest
in the legal recognition of their marriages in
Pennsylvania. See De Leon, 975 F.Supp.2d at 662
([B]y declaring existing, lawful same-sex mar-
riages void and denying married couples the rights,
responsibilities, and benefits of marriage, Texas
denies same-sex couples who have been married in
other states their due process.); Obergefell v.
Wymyslo, 962 F.Supp.2d 968, 979 (S.D.Ohio 2013)
(When a state effectively terminates the marriage
of a same-sex couple married in another jurisdic-
tion, it intrudes into the realm of private marital,
family, and intimate relations specifically protected
by the Supreme Court.); Henry, F.Supp.2d at
, 2014 U.S. Dist. LEXIS 51211, at *29, 2014
WL 1418395, *910 (right to remain married is a
fundamental liberty interest appropriately protected
by the Due Process Clause); Baskin v. Bogan,
F.Supp.2d , 2014 U.S. Dist. LEXIS 63421,
2014 WL 1814064 (S.D.Ind.2014); see also Wind-
sor, 133 S.Ct. at 2694 (When one jurisdiction re-
fuses recognition of family relationships legally es-
tablished in another, [t]he differentiation demeans
the couple, whose moral and sexual choices the
Constitution protects ... and whose relationship the
State has sought to dignify.). Accordingly, we de-
clare that 23 Pa.C.S. 1704 violates the Due Pro-
cess Clause of the United States Constitution and is
therefore unconstitutional.
B. Equal Protection
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[9] Plaintiffs also advocate that the Marriage
Laws violate the Equal Protection Clause of the
Fourteenth Amendment. That provision forbids a
state from denying to any person within its jurisdic-
tion the equal protection of the laws, see U.S.
CONST. amend. XIV, 1, effectively directing the
like treatment of similarly-situated persons, see
Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382,
72 L.Ed.2d 786 (1982).
*10 [10][11][12][13][14] Laws reviewed under
the Equal Protection Clause are subject to various
levels of scrutiny depending upon the classification
imposed. See generally City of Cleburne, Tex. v.
S.Ct. 3249, 87 L.Ed.2d 313 (1985). Strict scrutiny
is reserved for statutes engendering suspect classi-
fications, such as those based on race, alienage, or
national origin, and requires the government to
demonstrate that the law is narrowly tailored to fur-
ther compelling state interests. See id. at 440, 105
S.Ct. 3249; Johnson v. California, 543 U.S. 499,
505, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005). Inter-
mediate or heightened scrutiny has been applied to
classifications deemed quasi-suspect,
FN7
such
as those based on sex or illegitimacy. See Mills v.
Habluetzel, 456 U.S. 91, 99, 102 S.Ct. 1549, 71
L.Ed.2d 770 (1982); Miss. Univ. for Women v.
Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73
L.Ed.2d 1090 (1982). To survive intermediate scru-
tiny, a statutory classification must be substantially
related to an important governmental objective. See
Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910,
100 L.Ed.2d 465 (1988). Lastly, for classifications
that do not target suspect or quasi-suspect groups,
courts apply rational-basis review, which is satis-
fied if a statutory classification is rationally related
to a legitimate governmental purpose. See Heller v.
Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125
L.Ed.2d 257 (1993). Review for rationality is
highly deferential to the legislature, and the burden
rests with the challenger to negate every possible
basis for the law. See id.
FN8
As an initial matter, the parties disagree on the
level of scrutiny applicable to classifications based
on sexual orientation. Defendants argue for ration-
al-basis review, while Plaintiffs would have us ap-
ply heightened scrutiny.
FN9
1. Heightened Scrutiny
The Third Circuit has never discoursed on the
appropriate level of scrutiny to be applied to classi-
fications based on sexual orientation, nor has the
Supreme Court rendered an explicit holding on that
point. Thus, we must consider and determine
whether gay and lesbian persons comprise a quasi-
suspect class for purposes of an equal protection
analysis of the Marriage Laws. While Windsor, the
most recent apposite pronouncement by the Su-
preme Court, offers little concrete guidance, we
glean from it and other Supreme Court jurispru-
dence that heightened scrutiny is, at minimum, not
foreclosed. Indeed, in the tea leaves of Windsor and
its forebears we apprehend the application of scru-
tiny more exacting than deferential.
As Justice Scalia cogently remarked in his dis-
sent, if [Windsor] is meant to be an equal-
protection opinion, it is a confusing one. Windsor,
133 S.Ct. at 2706 (Scalia, J., dissenting). Although
Windsor did not identify the appropriate level of
scrutiny, its discussion is manifestly not represent-
ative of deferential review. See id. (Scalia, J., dis-
senting) (observing that the Court certainly does
not apply anything that resembles [the rational-
basis] framework (emphasis omitted)). The Court
did not evaluate hypothetical justifications for the
law but rather focused on the harm resulting from
DOMA, which is inharmonious with deferential re-
view. See, e.g., McGowan v. State of Md., 366 U.S.
420, 42526, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961)
(explaining that, under rational-basis scrutiny, le-
gislatures are presumed to have acted constitution-
ally despite the fact that, in practice, their laws
result in some inequality, and [a] statutory dis-
crimination will not be set aside if any state of facts
reasonably may be conceived to justify it). Indeed,
far from affording the statute the presumption of
validity, Windsor found DOMA unconstitutional
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because no legitimate purpose overcomes the pur-
pose and effect to disparage and to injure. Wind-
sor, 133 S.Ct. at 2696 (emphasis added); see
SmithKline Beecham Corp. v. Abbott Labs., 740
F.3d 471, 480, 483 (9th Cir.2014) (examining
what the Court actually did in Windsor and con-
cluding that the decision requires heightened scru-
tiny) (citation and internal quotation marks omit-
ted).
*11 It has been observed that other of the Su-
preme Court's equal protection cases purporting to
apply deferential review have also, in practice,
probed more deeply, especially where the subject
group has suffered historic patterns of deprivation.
See, e.g., Massachusetts v. U.S. Dept. of Health &
Human Servs., 682 F.3d 1, 11 (1st Cir.2012) (The
Court has ... undertaken a more careful assessment
of the justifications than the light scrutiny offered
by conventional rational basis review [in examining
statutes targeting women, the poor, the mentally
impaired, and gays and lesbians].). Notably, the
Court's sexual orientation jurisprudence has gener-
ally afforded considerably less deference than
would be expected under usual rational-basis re-
view. See generally Note, The Benefits of Unequal
Protection, 126 HARV. L.REV.. 1348, 1362 (2013)
(referencing Romer and Lawrence, and explaining
that many commentators have characterized the
scrutiny applied to sexual orientation classifications
as rational basis with bite).
Furthermore, a determination to apply
heightened scrutiny to classifications standing on
sexual orientation would be far from unpreceden-
ted, as a number of federal and state courts have in-
dicated that such scrutiny is warranted.
FN10
Hence, we proceed to consider whether classi-
fications based on sexual orientation qualify as
quasi-suspect.
a. Indicia of Suspectness
FN11
[15] The Supreme Court has established certain
criteria for evaluating whether a class qualifies as
suspect or quasi-suspect, which query whether the
group: (1) has been subjected to a history of pur-
poseful unequal treatment, Mass. Bd. of Ret. v.
Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 49
L.Ed.2d 520 (1976) (per curiam ); (2) possesses a
characteristic that frequently bears no relation to
ability to perform or contribute to society,
Cleburne, 473 U.S. at 44041, 105 S.Ct. 3249; (3)
exhibits obvious, immutable, or distinguishing
characteristics that define them as a discrete group
[,] Bowen v. Gilliard, 483 U.S. 587, 602, 107 S.Ct.
3008, 97 L.Ed.2d 485 (1987) (citation and internal
quotation marks omitted); and (4) is a minority or
politically powerless. Id. Of the four factors, the
first two are most meaningful. See Windsor, 699
F.3d at 181 (Immutability and lack of political
power are not strictly necessary factors to identify a
suspect class.). The criteria function as a lodestar,
and as Justice Thurgood Marshall effectually ob-
served, [n]o single talisman can define those
groups likely to be the target of classifications of-
fensive to the Fourteenth Amendment and therefore
warranting heightened or strict scrutiny; experi-
ence, not abstract logic, must be the primary
guide. Cleburne, 473 U.S. at 472, 105 S.Ct. 3249
n. 24 (Marshall, J., concurring in part and dissent-
ing in part).
Defendants do not advance that sexual orienta-
tion is mutable or bears a relation to ability to parti-
cipate in society. Rather, they dispute only that gay
and lesbian persons have suffered requisite historic-
al discrimination and lack political power. Nonethe-
less, we address each criterion in turn.
i. History of Discrimination
*12 [16] That the gay and lesbian community
has endured historical discrimination at the national
level is uncontested. In terms of government-sanc-
tioned discrimination, in 1952, Congress prohibited
gay men and women from entering the country or
securing citizenship. (Doc. 1151, pp. 12930). In
1953, President Eisenhower issued an executive or-
der banning the employment of homosexuals and
requiring that private contractors currently employ-
ing gay individuals search out and terminate them. (
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Id. p. 129). Although the ban on hiring gay employ-
ees was lifted in 1975, federal agencies were free to
discriminate against homosexuals in employment
matters until President Clinton forbade the practice
in 1998. (Id. p. 137). Beginning in World War II,
the military developed systematic policies to ex-
clude personnel on the basis of homosexuality, and,
following the war, the Veterans Administration
denied GI benefits to service members who had
been discharged because of their sexuality. (Id. p.
128).
Within our lifetime, gay people have been the
targets of pervasive police harassment, including
raids on bars, clubs, and private homes; portrayed
by the press as perverts and child molesters; and
victimized in horrific hate crimes. (E.g., id. pp.
12628, 13132, 141). Gay and lesbian persons
have been prevented from adopting and serving as
foster parents, and the majority of states prohibit
same-sex marriage. (Id. pp. 139, 142).
Perhaps most illustrative of the pervasive his-
toric discrimination faced by gays and lesbians was
the widespread and enduring criminalization of ho-
mosexual conduct. Before the 1960s, all states pun-
ished sexual intimacy between men, and, until the
publish of Lawrence v. Texas in 2003, thirteen
states categorized sodomy as a felony offense. (Id.
p. 121). Our country's military continued to make
sodomy a crime until 2013. (Id. p. 128).
The nation's history of discrimination against
gays and lesbians speaks for itself. What Defend-
ants contest is a record of discrimination in
Pennsylvania, which they appear to believe is re-
quired for a finding of historical injustice.
However, Defendants provide no authority direct-
ing a narrowed geographic focus in discerning
longstanding discrimination, and our review of Su-
preme Court jurisprudence suggests no such con-
straint. Cf., e.g., Murgia, 427 U.S. at 313, 96 S.Ct.
2562 (in assessing the constitutionality of a Mas-
sachusetts mandatory retirement law, evaluating
the treatment of the aged in this Nation).
FN12
As an apparently alternative position, Defend-
ants advocate taking a shorter view of national his-
tory, focusing on the legal and social progress of
the gay community in the past few decades to argue
against a finding of historical discrimination. They
highlight that many laws adversely targeting homo-
sexuals have been repealed, a number of states have
extended anti-discrimination protections to gay men
and lesbians, and the media now depicts gay people
more widely and positively. (Doc. 1151, pp. 122,
137, 139). We agree with Plaintiffs that [t]he fact
that some forms of discrimination against gay
people have ceased or become less prevalent does
not change the fact that lesbian and gay people con-
tinue to live with the legacy of a long history of dis-
crimination that created and reinforced the belief
that they are an inferior class. (Doc. 128, p. 6
(citing Doc. 1151, pp. 120, 378)); see Frontiero,
411 U.S. at 68586, 93 S.Ct. 1764 (applying
heightened scrutiny to classifications based on sex
even though the position of women in America has
improved markedly in recent decades; observing
that women still face pervasive, although at times
more subtle, discrimination in the public sphere)
(footnotes omitted).
*13 In view of the protracted historical record
of injustices against gay and lesbian persons in our
country (inclusive of this Commonwealth), we find
that this consideration points strongly toward the
application of heightened scrutiny.
ii. Relation to Ability
[17] We need not linger on this criterion: it is
axiomatic that sexual orientation has no relevance
to a person's capabilities as a citizen. Accord Golin-
ski, 824 F.Supp.2d at 986 ([T]here is no dispute in
the record or the law that sexual orientation has no
relevance to a person's ability to contribute to soci-
ety.).
FN13
Defendants' silence on this point
speaks volumes, and either connotes candor, agree-
ment with Plaintiffs, or both. This factor weighs
heavily in favor of recognizing sexual orientation
as a quasi-suspect class.
iii. Distinguishing Characteristic
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[18][19] Whether sexual orientation constitutes
a sufficiently discernable characteristic is also little
in debate and, for our purposes, undisputed by De-
fendants. Briefly, although this factor is often
phrased in terms of immutability, the test is
broader, encompassing groups whose members can
hide the distinguishing trait and where the charac-
teristic is subject to change. See Mathews v. Lucas,
427 U.S. 495, 506, 96 S.Ct. 2755, 49 L.Ed.2d 651
(1976) (observing that illegitimate children do not
carry an obvious badge); Pedersen, 881
F.Supp.2d at 320 (noting that status as a resident
alien or as illegitimate may be subject to change,
yet that these classifications compel increased scru-
tiny). Here, the characteristic in issue is so funda-
mental to one's identity that a person should not be
required to abandon [it]. HernandezMontiel v.
I.N.S., 225 F.3d 1084, 1093 (9th Cir.2000), over-
ruled on other grounds by Thomas v. Gonzales, 409
F.3d 1177 (9th Cir.2005).
This factor, too, indicates the appropriateness
of heightened scrutiny.
iv. Political Power
[20][21] Lastly, we consider whether the sub-
ject group lacks political power or is a minority.
See Bowen, 483 U.S. at 602, 107 S.Ct. 3008. This
consideration centers on relative political influence
and inquires whether the discrimination is un-
likely to be soon rectified by legislative means.
Golinski, 824 F.Supp.2d at 987 (quoting Cleburne,
473 U.S. at 440, 105 S.Ct. 3249); see also San Ant-
onio Indep. Sch. Dist., 411 U.S. at 28, 93 S.Ct.
1278 (to satisfy this factor, the class must be
relegated to such a position of political powerless-
ness as to command extraordinary protection from
the majoritarian political process). While germane,
this factor is not essential for recognition as a sus-
pect or quasi-suspect class. See Cleburne, 473 U.S.
at 472 n. 24, 105 S.Ct. 3249 (Marshall, J., concur-
ring in part and dissenting in part) (The political
powerlessness' of a group may be relevant, ... but
that factor is neither necessary, as the gender cases
demonstrate, nor sufficient, as the example of
minors illustrates.).
[22] In our case, [t]he question is not whether
homosexuals have achieved political successes over
the years; they clearly have. The question is wheth-
er they have the strength to politically protect them-
selves from wrongful discrimination. Windsor,
699 F.3d at 184. Defendants contend that the gay
community does possess such force, centrally citing
Sevcik v. Sandoval, 911 F.Supp.2d 996
(D.Nev.2012). In that case, a district court con-
cluded that homosexuals possessed sufficient polit-
ical power, noting cultural shifts toward acceptance
of gay people, including the President's endorse-
ment of same-sex marriage, and recent political
successes, such as on marriage ballot initiatives at
the state level. See id. at 1008, 1013. Defendants
highlight that, at present, at least 17 bills have been
introduced in Pennsylvania that would protect and
benefit gay men and lesbians, four of which re-
define marriage inclusively.
*14 [23] While the gay rights movement has
undoubtedly gained recognition as a vigorous force
and has influenced public policy to some extent,
there remains an absence of statutory, anti-
discrimination protections which may indicate con-
tinuing political weakness. See Obergefell, 962
F.Supp.2d at 989; Pedersen, 881 F.Supp.2d at 327.
Today, in over half of states including
Pennsylvania, gay and lesbian individuals lack
statewide, statutory protections against discrimina-
tion in housing and public accommodation, as well
as in firing, refusal to hire, and demotion in private-
sector employment. (Doc. 1151, p. 137). As to the
proposed legislation in Pennsylvania, we find it of
little assistance to our inquiry as there can be no as-
surance that such bills will garner sufficient support
for passage.
Furthermore, some courts finding homosexuals
to be politically powerless have taken guidance
from the plurality in Frontiero, noting that women
had achieved great political victories at the time of
the decision but were nonetheless considered a
quasi-suspect class. See, e.g., Pedersen, 881
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F.Supp.2d at 32829; Varnum, 763 N.W.2d at 894.
Similar to the status of women in 1973, homosexu-
als' position has improved markedly in recent dec-
ades, but they still face pervasive, although at
times more subtle, discrimination ... in the political
arena. Frontiero, 411 U.S. at 68586, 93 S.Ct.
1764 (footnotes omitted); see Windsor, 699 F.3d at
184.
This factor appears more equivocal than the
others. However, in view of the general lack of stat-
utory protections for homosexual persons, we per-
ceive a weak positive in favor of heightened scru-
tiny.
[24] To summarize, we find that all four factors
weigh in favor of a finding that gay and lesbian per-
sons compose a class that is subject to heightened
scrutiny. We agree with the Second Circuit, and the
district court cases that followed it, that the class is
quasi-suspectas opposed to suspectbased on
the weight of the factors and on analogy to the clas-
sifications recognized as suspect and quasi-sus-
pect. Windsor, 699 F.3d at 185.
Having concluded that classifications based on
sexual orientation are quasi-suspect, we proceed to
apply intermediate scrutiny to the Marriage Laws in
consideration of their constitutionality.
b. Application of Heightened Scrutiny
[25] As stated, a statutory classification sur-
vives intermediate scrutiny if it is substantially re-
lated to an important governmental objective, with
the party defending the statute carrying the burden
to demonstrate the rationale. See Clark, 486 U.S. at
461, 108 S.Ct. 1910. The Supreme Court has also
described the standard as demanding an
exceedingly persuasive justification for the clas-
sification. Miss. Univ. for Women, 458 U.S. at 724,
102 S.Ct. 3331 (citing Kirchberg v. Feenstra, 450
U.S. 455, 461, 101 S.Ct. 1195, 67 L.Ed.2d 428
(1981); Personnel Admin'r of Mass. v. Feeney, 442
U.S. 256, 273, 99 S.Ct. 2282, 60 L.Ed.2d 870
(1979)). Quasi-suspect classifications are subject to
heightened review because the preeminent charac-
teristic of the group generally provides no sensible
ground for differential treatment. Cleburne, 473
U.S. at 440, 105 S.Ct. 3249.
*15 [26] In terms of state interests served by
Pennsylvania's Marriage Laws, Defendants advance
the following: the promotion of procreation, child-
rearing and the well-being of children, tradition,
and economic protection of Pennsylvania busi-
nesses. Defendants appear to defend only the first
two aims, stating that numerous federal and state
courts have agreed that responsible procreation and
child-rearing are legitimate state interests and
providing extensive authority for that proposition.
Significantly, Defendants claim only that the ob-
jectives are legitimate, advancing no argument
that the interests are important state interests as
required to withstand heightened scrutiny. Also,
Defendants do not explain the relationship between
the classification and the governmental objectives
served; much less do they provide an exceedingly
persuasive justification. In essence, Defendants ar-
gue within the framework of deferential review and
go no further.
FN14
Indeed, it is unsurprising that
Defendants muster no argument engaging the stric-
tures of heightened scrutiny, as we, too, are unable
to fathom an ingenuous defense saving the Mar-
riage Laws from being invalidated under this more-
searching standard.
FN15
In sum, Defendants have failed to carry their
burden, and we conclude that the classification im-
posed by the Marriage Laws based on sexual orient-
ation is not substantially related to an important
governmental interest. Accordingly, we hold that
the Marriage Laws violate the principles of equal
protection and are therefore unconstitutional.
V. CONCLUSION
Based on the foregoing, we hold that
Pennsylvania's Marriage Laws violate both the Due
Process and Equal Protection Clauses of the Four-
teenth Amendment to the United States Constitu-
tion. Because these laws are unconstitutional, we
shall enter an order permanently enjoining their en-
forcement. By virtue of this ruling, same-sex
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couples who seek to marry in Pennsylvania may do
so, and already married same-sex couples will be
recognized as such in the Commonwealth.
[27][28] The issue we resolve today is a divis-
ive one. Some of our citizens are made deeply un-
comfortable by the notion of same-sex marriage.
However, that same-sex marriage causes discomfort
in some does not make its prohibition constitution-
al. Nor can past tradition trump the bedrock consti-
tutional guarantees of due process and equal protec-
tion. Were that not so, ours would still be a racially
segregated nation according to the now rightfully
discarded doctrine of separate but equal. See
Brown v. Board of Education, 347 U.S. 483, 74
S.Ct. 686, 98 L.Ed. 873 (1954), overruling Plessy v.
Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed.
256 (1896). In the sixty years Brown was decided,
separate has thankfully faded into history, and
only equal remains. Similarly, in future genera-
tions the label same-sex marriage will be aban-
doned, to be replaced simply by marriage.
We are a better people than what these laws
represent, and it is time to discard them into the ash
heap of history.
*16 An appropriate Order shall issue.
ORDER
In conformity with the Memorandum Opinion
issued on today's date, it is hereby ORDERED that
Plaintiffs' Motion for Summary Judgment (Doc.
113) is GRANTED and Defendants' Motion for
Summary Judgment (Doc. 116) is DENIED.
It is further ORDERED and DECLARED that
Pennsylvania's Marriage Laws, 23 Pa.C.S. 1102
and 1704, which prohibit same-sex marriage and
treat as void the marriages of same-sex couples val-
idly entered into in other jurisdictions VIOLATE
the Due Process and Equal Protection Clauses of
the Fourteenth Amendment to the United States
Constitution and are therefore UNCONSTITU-
TIONAL.
It is further ORDERED that the Defendants
are PERMANENTLY ENJOINED from enforcing
23 Pa.C.S. 1102 and 1704.
FN1. The facts regarding Plaintiffs' per-
sonal backgrounds are derived from their
Statement of Facts (Doc. 115) and personal
declarations. (Docs. 115211514).
FN2. We thank all counsel for their con-
sistent collegiality, dedication to alacrity,
and general professionalism exhibited
throughout the course of this litigation.
FN3. Federal Rule of Civil Procedure
56(a) provides that [t]he court shall grant
summary judgment if 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.
FN4. In Kitchen, the district judge held
that Utah's prohibition on same-sex mar-
riage conflicts with the guarantees of equal
protection and due process under the Four-
teenth Amendment to the United States
Constitution. The district court reasoned
that Utah's laws denied gay and lesbian cit-
izens their fundamental right to marry and,
in so doing, demeaned the dignity of these
same-sex couples for no rational reason.
See Kitchen, 961 F.Supp.2d 1181.
FN5. 42 U.S.C. 1983 is an enabling stat-
ute that provides individuals with access to
remedies for violations of their federal
constitutional or statutory rights.
FN6. Several of our sister district courts
have reached precisely this same conclu-
sion in recently penned opinions. See
Latta, F.Supp.2d , 2014 U.S. Dist.
LEXIS 66417, 2014 WL 1909999; Henry
v. Himes, No. 14129, F.Supp.2d
, 2014 U.S. Dist. LEXIS 51211, 2014
WL 1418395 (S.D.Ohio April 14, 2014);
Page 23
--- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.)
(Cite as: 2014 WL 2058105 (M.D.Pa.))
De Leon, 975 F.Supp.2d 632; Bostic, 970
F.Supp.2d 456; Kitchen, 961 F.Supp.2d
1181.
FN7. We use the terms heightened scru-
tiny and intermediate scrutiny inter-
changeably to refer to the analysis applic-
able to laws targeting quasi-suspect
classes.
FN8. An additional strand of equal protec-
tion jurisprudence protects against the in-
fringement of fundamental rights and ap-
plies strict scrutiny where the government
discriminates among people as to the exer-
cise of such rights. See generally ERWIN
CHEMERINSKY, CONSTITUTIONAL
LAW: PRINCIPLES & POLICIES 691
(4th ed.2011). Based on our discussion
supra, determining that Plaintiffs have
suffered a deprivation of their fundamental
right to marry and be recognized as mar-
ried, we conclude that strict scrutiny is ap-
propriate under the fundamental rights
strand of equal protection jurisprudence.
However, we focus our attention on the
more typical application of equal protec-
tion principles, involving the constitution-
ality of distinctions among classes.
FN9. Specifically, Plaintiffs argue that,
when evaluating statutes categorizing on
the basis of sexual orientation, [t]his
Court should apply at least the intermedi-
ate scrutiny applied to quasi-suspect classi-
fications .... (Doc. 114, p. 50). Interpret-
ing that Plaintiffs' arguments largely ad-
vocate for the application of intermediate
scrutiny, rather than strict scrutiny, we,
too, confine our analysis to the appropri-
ateness of heightened scrutiny.
As an additional, alternative argument,
Plaintiffs also contend that the Marriage
Laws impose sex-based classifications
and, on this ground, are subject to inter-
mediate scrutiny. We find this character-
ization less compelling, observing, as a
practical matter, that the intentional dis-
crimination occurring in this case has
nothing to do with gender-based preju-
dice or stereotypes[.] Bishop, 962
F.Supp.2d at 1286; see In re Marriage
Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d
683, 183 P.3d 384, 439 (2008)
([D]iscrimination on the basis of sex[ ]
and discrimination on the basis of sexual
orientation ... traditionally have been
viewed as distinct phenomena.).
FN10. See, e.g., SmithKline, 740 F.3d at
48384; Windsor, 699 F.3d at 185; Latta,
F.Supp.2d at , 2014 U.S. Dist.
LEXIS 66417, at *22, 2014 WL 1909999,
at *7; Henry, F.Supp.2d at , 2014
U.S. Dist. LEXIS 51211, at *4651, 2014
WL 1418395, at *1517; De Leon, 975
F.Supp.2d at , 2014 WL
715741, at *1314, 2014 U.S. Dist. LEXIS
26236, at *39; Obergefell, 962 F.Supp.2d
at 991; Golinski v. U.S. Office of Personnel
Mgmt., 824 F.Supp.2d 968, 98990
(N.D.Cal.2012); Pedersen v. Office of Per-
sonnel Mgmt., 881 F.Supp.2d 294, 333
(D.Conn.2012); Perry, 704 F.Supp.2d at
997; In re Balas, 449 B.R. 567, 575
(Bankr.C.D.Cal.2011) (decision of 20
Bankruptcy Judges); Varnum v. Brien, 763
N.W.2d 862, 89596 (Iowa 2009); In re
Marriage Cases, 76 Cal.Rptr.3d 683, 183
P.3d at 444; Kerrigan v. Comm'r of Pub.
Health, 289 Conn. 135, 957 A.2d 407,
47576 (2008).
FN11. See San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278,
36 L.Ed.2d 16 (1973) (coining indicia of
suspectness).
FN12. To address the merits of Defend-
ants' concern, however, we pause to note
that Pennsylvania's treatment of homo-
Page 24
--- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.)
(Cite as: 2014 WL 2058105 (M.D.Pa.))
sexuals also evidences long-term discrim-
ination. For example, in the 1950s, the
Philadelphia police formed a morals
squad, arresting some 200 gay men per
month. (Doc. 1151, p. 132). In 1986, a
Pennsylvania appellate court upheld an or-
der heavily restricting a father's custody
rights based on his sexuality, endorsing
that his daughters were innocent and im-
pressionable and that exposure to his ho-
mosexual relationship would inevitably
result in emotional disturbance, perhaps
severe. (Id. pp. 13536) (citing Pas-
carella v. Pascarella, 355 Pa.Super. 5, 512
A.2d 715 (1986)). Also, state legislators
have sponsored bills in every session since
2006 proposing to amend the Constitution
to enshrine the definition of marriage as
between one man and one woman. (Id. p.
144). During debate, elected officials re-
marked that failing to exclude same-sex
couples from marriage could lead to the
legalization of incest and bestiality, and
one senator called homosexual relation-
ships dysfunctional, comparing same-sex
marriage to pedophilia. (Id. p. 145). Fur-
ther, as discussed infra, Pennsylvania lacks
statutory anti-discrimination legislation
protecting gay and lesbian persons, thereby
permitting discrimination, e.g., in the work
place, housing, and public accommodation.
See discussion infra Part IV.B.1.a.iv. In
view of this recitation, we would not find
that Pennsylvania lacks a history of dis-
crimination toward gay people.
FN13. See also Pedersen, 881 F.Supp.2d at
320 (Sexual orientation is not a distin-
guishing characteristic like mental retarda-
tion or age which undeniably impacts an
individual's capacity and ability to contrib-
ute to society. Instead like sex, race, or il-
legitimacy, homosexuals have been subjec-
ted to unique disabilities on the basis of
stereotyped characteristics not truly indic-
ative of their abilities.); Varnum, 763
N.W.2d at 890 (Not surprisingly, none of
the same-sex marriage decisions from oth-
er state courts around the nation have
found a person's sexual orientation to be
indicative of the person's general ability to
contribute to society. (footnote omitted)).
FN14. Amicus, a group of current and
former Pennsylvania legislators, submitted
a brief also arguing that rational basis re-
view is satisfied here. Accordingly, their
assertions do not aid our examination un-
der heightened scrutiny.
FN15. Parenthetically, a number of courts
considering the constitutionality of com-
parable state marriage laws, underpinned
by state interests not dissimilar to those
forwarded here, have concluded that those
laws cannot withstand even rational-basis
review. See, e.g., Geiger, F.Supp.2d
, 2014 WL 2054264, 2014 U.S. Dist.
LEXIS 68171; DeBoer, 973 F.Supp.2d at
, 2014 WL 1100794, at *11, 2014
U.S. Dist. LEXIS 37274, at *33; Bourke,
2014 U.S. Dist. LEXIS 17457, at *32;
Bishop, 962 F.Supp.2d at 1295; Kitchen,
961 F.Supp.2d at 1206.
M.D.Pa.,2014.
Whitewood v. Wolf
--- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.)
END OF DOCUMENT
Page 25
--- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.)
(Cite as: 2014 WL 2058105 (M.D.Pa.))
Wright v. State, 2014 WL 1908815 (2014)
2014 WL 1908815 (Ark.Cir.) (Trial Order)
Circuit Court of Arkansas.
Second Division
Pulaski County
M. Kendall WRIGHT, et al.
v.
STATE of Arkansas, et al.
No. 60CV-13-2662.
May 9, 2014.
Order Granting Summary Judgment in favor of the Plaintiffs
and Finding Act 144 of 1997 and Amendment 83 Unconstitutional
Christopher Charles Piazza, Judge.
*1 This case involves twelve same-sex couples who seek to marry in Arkansas and eight same-sex couples who have married
in states that permit marriage between same-sex couples and seek to have their marriages recognized in Arkansas.
There are two state laws at issue in this matter which expressly prohibit such recognition-Act 144 of 1997 of the Arkansas
General Assembly and Amendment 83 to the Arkansas Constitution. Act 144 states that a marriage shall be only between a
man and a woman. A marriage between persons of the same sex is void. Ark. ACT 144 of 1997, 1 (codified at Ark. Code
Ann. 9-11-109). The Act further provides that a marriage which would be valid by the laws of the state or country entered
into by a person of the same sex is void in Arkansas. Id. at 2 (codified at Ark. Code Ann. 9-11-107).
Amendment 83, which was approved by a majority of voters in a general election on November 2, 2004, states:
1. Marriage
Marriage consists of only the union of one man and one woman
2. Marital Status
Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in
Arkansas, except that the legislature may recognize a common law marriage from another state between a man and a woman.
3. Capacity, rights, obligations, privileges and immunities
The Legislature has the power to determine the capacity of persons to marry, subject to this amendment, and the legal rights,
obligations, privileges, and immunities of marriage.
The plaintiffs contend that these prohibitions infringe upon their due process and equal protection rights under the Fourteenth
Amendment of the United States Constitution and Article 2, 3 of the Arkansas Constitution's Declaration of Rights. The State
of Arkansas defends that it has the right to define marriage according to the judgment of its citizens through legislative and
constitutional acts. Both parties have submitted motions for summary judgment.
Wright v. State, 2014 WL 1908815 (2014)
The Equal Protection Clause forbids a state from denying to any person within its jurisdiction the equal protection of the laws,
U.S. Const, amend. XIV, 1, and promotes the ideal that all persons similarly situated should be treated alike. Cleburne
v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). However, states are empowered to perform many of the vital
functions of modern government, Nat'l Fed'n of Indep. Bus. v. Sebelius, U.S. , 132 S.Ct. 2566, 2578 (2012), which
necessarily involves adopting regulations which distinguish between certain groups within society. See Romer v. Evans, 517
U.S. 620, 631 (1996). Therefore, all courts must balance equal protection principles with the practical purposes of government
when reviewing constitutional challenges to state laws.
The United States Supreme Court has outlined three categories for analyzing equal protection challenges. The most rigorous is
referred to as strict scrutiny, which is reserved for laws that interfere with the exercise of a fundamental right or discriminate
against suspect classes. See Plyler v. Doe, 457 U.S. 202, 216-217 (1982). A more relaxed standard of review is intermediate
or heightened scrutiny, which courts have applied to laws that discriminate against groups on the basis of gender, alienage or
illegitimacy (also referred to as quasi-suspect classes). See Clark v. Jeter, 486 U.S. 456, 461 (1988); Miss. Univ. for Women
v. Hogan, 458 U.S. 718, 723-724 (1982). When the law does not interfere with a fundamental right or the rights of a suspect
or quasi-suspect class, rational basis review applies. Here, the Arkansas marriage laws implicate both a fundamental right and
the rights of a suspect or quasi-suspect class.
*2 Although marriage is not expressly identified as a fundamental right in the Constitution, the United States Supreme Court
has repeatedly recognized it as such.
1
It has also consistently applied heightened scrutiny to laws that discriminate against
groups considered to be a suspect or quasi-suspect classification. Mass. Bd. of Ret. v. Murgia, 421 U.S. 307, 313 (1976) (a
group that has experienced a history of purposeful unequal treatment or [has] been subjected to unique disabilities on the
basis of stereotyped characteristics not truly indicative of their abilities.). Courts consider whether the characteristics that
distinguish the class indicate a typical class member's ability to contribute to society, Cleburne, 473 U.S. at 440-41; whether the
distinguishing characteristic is immutable or beyond the group member's control, Lyng v. Castillo, 477 U.S. 635, 638 (1986);
and whether the group is a minority or politically powerless, Bowen v. Gilliard, 483 U.S. 587, 602 (1987). On this issue,
this Court finds the rationale of De Leon v. Perry, Obergefell v. Wymyslo, and the extensive authority cited in both cases to be
highly persuasive, leading to the undeniable conclusion that same-sex couples fulfill all four factors to be considered a suspect
or quasi-suspect classification. See respectively, SA-13-CA-00982-OLG, 2014 WL 715741, *12 (W.D. Tex. Feb. 26, 2014)
and 962 F. Supp.2d 968, 987-88 (S.D. Ohio 2013) (internal citations omitted). Therefore, at a minimum, heightened scrutiny
must be applied to this Court's review of the Arkansas marriage laws.
1
See M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376 (1971)) (finding that choices
about marriage are among associational rights this Court has ranked as of basic importance in our society ); Planned Parenthood
of Southern Pennsylvania v. Casey, 505 U.S. 833, 848 (1992) (finding marriage to be an aspect of liberty protected against state
interference by the substantive component of the Due Process Clause); Turner v. Safley, 482 U.S. 78, 97 (1987) (finding that a
regulation that prohibited inmates from marrying without the permission of the warden impermissibly burdened their right to marry);
Zablocki v. Redhail, 434 U.S. 374, 383-84 (1978) (defining marriage as a right of liberty); Carey v. Population Servs. Int'l, 431 U.S.
678, 684-85 (1977) (finding that the right to privacy includes personal decisions relating to marriage); United States v. Kras, 409
U.S. 434, 446 (1973) (concluding that the Court has come to regard [marriage] as fundamental); Boddie, 401 U.S. at 376 (defining
marriage as a basic importance in our society); Loving v. Virgina, 388 U.S. 1, 12 (Marriage is one of the basic civil rights of man,
fundamental to our existence and survival (quoting Skinner v. Oklahoma ex rel Williamson, 316 U.S. 535 541 (1942)); Griswold
v. Connecticut, 381 U.S. 479, 486 (1965) (defining marriage as a right of privacy and a coming together for better or for worse,
hopefully enduring, and intimate to the degree of being sacred); Skinner v. Oklahoma ex rel Williamson, 316 U.S. 535, 541 (1942)
(finding marriage to be a basic civil right[ ] of man); Meyer v, Nebraska, 262 U.S. 390, 399 (1923) (the right to marry is a central
part of Due Process liberty); Andrews v. Andrews, 188 U.S. 14, 30 (1903) (quoting Maynard v. Hill, 125 U.S. 190, 205 (1888))
(finding marriage to be most important relation in life), abrogated on other grounds, Sherrer v. Sherrer, 334 U.S. 343, 352 (1948);
Maynard, 125 U.S. at 205 (marriage creates the most important relation in life)(same).
Regardless of the level of review required, Arkansas's marriage laws discriminate against same-sex couples in violation of
the Equal Protection Clause because they do not advance any conceivable legitimate state interest necessary to support even
Wright v. State, 2014 WL 1908815 (2014)
a rational basis review. Under this standard, the laws must proscribe conduct in a manner that is rationally related to the
achievement of a legitimate governmental purpose. See Vance v. Bradley, 440 U.S. 93, 97 (1979). [S]ome objectives ... are
not legitimate state interests and, even when a law is justified by an ostensibly legitimate purpose, [t]he State may not rely
on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.
Cleburne, 473 U.S. at 446-47.
*3 At the most basic level, by requiring that classifications be justified by an independent and legitimate purpose, the Equal
Protection Clause prohibits classifications from being drawn for the purpose of disadvantaging the group burdened by the
law. Romer, 517 U.S. at 633; see also United States v. Windsor, 570 U.S. -, 133 S.Ct. 2675 (2013); Cleburne, 473 U.S. at 450;
Rational basis review is a deferential standard, but it is not a toothless one. Mathews v. Lucas, 427 U.S. 495, 510 (1976).
The Supreme Court invoked this principle most recently in Windsor when it held that the principal provision of the federal
Defense of Marriage Act (DOMA) violated equal protection guarantees because the purpose and practical effect of the
law ... [was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages. Windsor,
570 U.S. -, 133 S.Ct. at 2693. The case at bar and many around the country have since challenged state laws that ban same-
sex marriage as a result of that decision. See e.g., De Leon, 2014 WL 715741; Lee v. Orr, No. 13-cv-8719, 2014 WL 683680
(N.D. Ill. Feb. 21, 2014); Bostic v. Rainey, 970 F. Supp.2d 456 (E.D. Va. Feb. 13, 2014); Bourke, F.Supp.2d, 2014 WL 556729
(W.D. Ky. Mar. 19, 2013); Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252 (N.D. Okla. 2014); Obergefell, 962
F. Supp.2d 968; Kitchen v. Herbert, 961 F.Supp.2d 1181 (CD. Utah 2013).
Edith Windsor and Thea Spyer were a same-sex couple that married in Canada and lived in New York, a state that recognizes
same-sex marriages. When Spyer died, Windsor attempted to claim the estate tax exemption, but DOMA prevented her from
doing so, and she filed suit to obtain a $363,053 tax refund from the federal government.
In the Windsor opinion, Justice Kennedy explained how the strict labels placed upon the definition of a marriage have begun
to evolve:
It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the
same sex might aspire to occupy the same status and dignity as that of a man and woman in a lawful marriage. For marriage
between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and
to its role and function throughout the history of civilization. That belief, for many who have long held it, became even more
urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight.
Id. at 2689.
He further points out how this restriction on marriage impacts not only the individuals involved but also their families:
This places same-sex couples in an unstable position of being in a second tier marriage. The differentiation demeans the
couple, whose moral and sexual choices the Constitution protects and whose relationship the State has sought to dignify. And
it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more
difficult for the children to understand the integrity and closeness of their own family and its concord with other families in
their community and in their daily lives.
Id. at 2694 (citation omitted).
The Court concluded that this impact deprived a person of liberty protected by the Fifth Amendment and held that DOMA
is unconstitutional.
Wright v. State, 2014 WL 1908815 (2014)
*4 While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does,
the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all
the better understood and preserved.
Id. at 2695.
Since Windsor, a Virginia federal district court has considered the constitutionality of the Virginia law that banned same-sex
marriages and found that the laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as
constitutionally infirm under even the least onerous level of scrutiny. Bostic, 970 F. Supp. 2d at 482. The court explained,
Justice has often been forged from fires of indignities and prejudices suffered. Our triumphs that celebrate the freedom of
choice are hallowed. We have arrived upon another moment in history when We the People becomes more inclusive, and
our freedom more perfect. Id at 483-484. The Bostic opinion includes a statement made by Mildred Loving on the fortieth
anniversary of Loving v. Virginia, 388 U.S. 1 (1967). Her statement further demonstrates how definitions and concepts of
marriage can change and evolve with time:
We made a commitment to each other in our love and loves, and now had the legal commitment, called marriage, to match.
Isn't that what marriage is? ... I have lived long enough now to see big changes. The older generations' fears and prejudices
have given way, and today's young people realize that if someone loves someone they have a right to marry. Surrounded as
I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to
marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was
the wrong kind of person for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their
sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious
beliefs over others... I support the freedom to marry for all. That's what Loving, and loving, are all about.
Id at 1 (quoting Mildred Loving, Loving for All).
In Kitchen v. Herbert, a Utah federal district court also held that its state's constitutional ban of same-sex marriage violated
plaintiffs' federal due process and equal protection rights. 961 F.Supp.2d at 1216. The Court explained:
Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that
the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not
thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples. And while the State
cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of
marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy,
and shared responsibilities. The Plaintiffs' desire to publicly declare their vows of commitment and support to each other is a
testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse.
*5 Id. at 1215-1216.
The defendants offer several rationalizations for the disparate treatment of same-sex couples such as the basic premise of the
referendum process, procreation, that denying marriage protections to same-sex couples and their families is justified in the
name of protecting children, and continuity of the laws and tradition. None of these reasons provide a rational basis for adopting
the amendment.
The state defendants contend that this court must follow the last pronouncement by Arkansas voters, as long as the ban does
not violate a fundamental right of the United States Constitution. They argue that the Arkansas Constitution can be amended
by the people, and three out of four voters in the 2004 general election said that same-sex couples cannot marry. This position
is unsuccessful from both a federal and state constitution perspective.
Wright v. State, 2014 WL 1908815 (2014)
Article 2, 2 of the Arkansas Constitution guarantees Arkansans certain inherent and inalienable rights, including the enjoyment
of life and liberty and the pursuit of happiness.
All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those
of enjoying and defending life and liberty; of acquiring, possessing, and protecting property, and reputation; and of pursuing
their own happiness, To secure these rights governments are instituted among men, deriving their just powers from the consent
of the governed.
ARK. CONST., art 2, 2.
In this case, Article 2 2 was left intact by the voters, but in Amendment 83 they singled out same-sex couples for the purpose
of disparate treatment. This is an unconstitutional attempt to narrow the definition of equality. The exclusion of a minority for
no rational reason is a dangerous precedent.
Furthermore, the fact that Amendment 83 was popular with voters does not protect it from constitutional scrutiny as to federal
rights. The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). The Constitution guarantees that all citizens have certain
fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so
important, an individual's fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
Id. at 638.
Defendants also cite Donaldson v. State, 367 Mont. 228 (2012), for the proposition that procreation can be a legitimate rational
basis for the upholding of a ban on same-sex marriages.
The replication, by children, of the procreative marital relationship as role-modeled by their married parents not only perpetuates
the race-sustaining function by populating the race, but also builds extended families which share hereditary characteristics of
a common gene pool.
Id at 237.
In a 1955 decision, the Supreme Court of Appeals of Virginia accepted the state's legitimate purposes to preserve the racial
integrity of its citizens, to prevent the corruption of blood, a mongrel breed of citizens and the obliteration of racial pride.
Nairn v. Nairn, 197 Va. 80, 90 (1955). In a comparison of Donaldson to Nairn, the state's purposes sound eerily similar.
*6 Procreation is not a prerequisite in Arkansas for a marriage license. Opposite-sex couples may choose not to have
children or they may be infertile, and certainly we are beyond trying to protect the gene pool. A marriage license is a civil
document and is not, nor can it be, based upon any particular faith. Same-sex couples are a morally disliked minority and the
constitutional amendment to ban same-sex marriages is driven by animus rather than a rational basis. This violates the United
States Constitution.
Even if it were rational for the state to speculate that children raised by opposite-sex couples are better off than children raised
by same-sex couples, there is no rational relationship between the Arkansas same-sex marriage bans and the this goal because
Arkansas's marriage laws do not prevent same-sex couples from having children. The only effect the bans have on children is
harming those children of same-sex couples who are denied the protection and stability of parents who are legally married.
The defendants also argue that Windsor is a federalism issue and claim the states have the authority to regulate marriage as a
matter of history and tradition, and that DOMA interfered with New York's law allowing same-sex marriage. The state defendant
points to Baker v. Nelson, as precedent for upholding the application of Amendment 83 to the Arkansas Constitution. 191
Wright v. State, 2014 WL 1908815 (2014)
N.W.2d 185 (1971). In that case, the United States Supreme Court dismissed an appeal from the Minnesota Supreme Court for
lack of a substantial federal question. 409 U.S. 810 (1972). While a summary disposition is considered precedential, the courts
that have considered this issue since Windsor, supra., have found that doctrinal developments render the decision in Baker no
longer binding. Bostic, 970 F. Supp. 2d at 469.
Tradition alone cannot form a rational basis for a law. Heller v. Doe, 509 U.S. 312, 326 (1993) (stating that the [a]ncient lineage
of a legal concept does not give it immunity from attack for lacking a rational basis.). The fact that a particular discrimination
has been traditional is even more of a reason to be skeptical of its rationality. The Court must be especially vigilant in
evaluating the rationality of any classification involving a group that has been subjected to a tradition of disfavor for a traditional
classification is more likely to be used without pausing to consider its justification than is a newly created classification.
Cleburne, 473 U.S. at 454 n. 6 (Stevens, J., concurring). Just as the tradition of banning interracial marriage represented the
embodiment of deeply-held prejudice and long-term racial discrimination in Loving, 388 U.S. at 1, the same is true here with
regard to Arkansas's same-sex marriage bans and discrimination based on sexual orientation.
The traditional view of marriage has in the past included certain views about race and gender roles that were insufficient to
uphold laws based on these views. See Lawrence v. Texas, 539 U.S. 558, 577-78 (2003) ([N]either history nor tradition could
save a law prohibiting miscegenation from constitutional attack) (citation omitted). And, as Justice Scalia has noted in dissent,
preserving the traditional institution of marriage is just a kinder way of describing the State's moral disapproval of same-
sex couples. Lawrence, 539 U.S. at 601 (Scalia, J., dissenting).
Defendants contend that the Eighth Circuit decision in Citizens for Equal Protection v. Bruning, 455 F. 3
rd
859 (2006) is
dispositive of this issue because it upheld a Nebraska constitutional ban on same-sex marriage. However, both the Donaldson
and Bruning decisions predate Windsor where the United States Supreme Court held:
*7 DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own
children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose
overcomes the purpose and effect to disparage and to injure these whom the State, by its marriage laws, sought to protect in
personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected
than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful
marriages.
Windsor at 2696 (emphasis added).
The state defendant attempts to distinguish Windsor by claiming that DOMA is related only to states that have allowed same-
sex marriages. However:
The Constitution's guarantee of equality must at the very least mean that a bare congressional desire to harm a politically
unpopular group cannot justify disparate treatment of that group.
Dep't of Agriculture v. Moreno, 413 U.S. 528, 534-535 (1973).
The issues presented in the case at bar are of epic constitutional dimensions-the charge is to reconcile the ancient view of
marriage as between one man and one woman, held by most citizens of this and many other states, against a small, politically
unpopular group of same-sex couples who seek to be afforded that same right to marry.
Attempting to find a legal label for what transpired in Windsor is difficult but as United States District Judge Terence C.
Kern wrote in Bishop v. United States, this court knows a rhetorical shift when it sees one. Judge Kern applied deferential
rational review and found no rational link between exclusion of this class from civil marriage and promotion of a legitimate
governmental objective. 962 F. Supp. 2d 1252, 1296 (2014).
Wright v. State, 2014 WL 1908815 (2014)
The strength of our nation is in our freedom which includes, among others, freedom of expression, freedom of religion, the
right to marry, the right to bear arms, the right to be free of unreasonable searches and seizures, the right of privacy, the right
of due process and equal protection, and the right to vote regardless of race or sex.
The court is not unmindful of the criticism that judges should not be super legislators. However, the issue at hand is the
fundamental right to marry being denied to an unpopular minority. Our judiciary has failed such groups in the past.
In Dred Scott v. John Sandford, Chief Justice Taney narrowed this issue by contemplating when and if a person can attain
certain fundamental rights and freedoms that were not originally granted to that individual or group of individuals. 60 U.S. 393
(1856). Scott, a slave whose ancestors were brought to America on a slave ship, attempted to file a case in federal court to
protect his wife and children. In the majority opinion, Chief Justice Taney pondered:
The question is simply this: Can a negro, whose ancestors were imported in to this country, and sold as slaves, become a member
of the political community formed and brought into existence by the constitution of the United States, and as such become
entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen? One of which rights is the
privilege of suing in a court of the United States in the cases specified in the Constitution.
Id. at 403.
The Court majority in 1856 relied on a strict interpretation of the intent of the drafters to come to their decision.
We think they are not, and that they are not included, and were not intended to be included, under the word citizens in the
Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens
of the United States. On the contrary, there were at that time considered as a subordinate and inferior class of beings, who had
been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no
rights or privileges but such as those who held the power and the Government might choose to grant them.
*8 Id. at 404-405.
One hundred years later, in Loving, the Supreme Court was still struggling with race in a miscegenation statute from the state
of Virginia where interracial marriages were considered a criminal violation. The Lovings were convicted and sentenced to
one year in jail suspended for twenty-five years on the condition that they leave the state for twenty-five years. 388 U.S. at 1.
The trial judge stated in his opinion that:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for
the interference with his arrangement there would be no cause for such marriages, The fact that he separated the races shows
that he did not intend for the races to mix.
Id. at 2 (citation omitted).
The U.S. Supreme Court disagreed with the trial court and in their opinion, Chief Justice Warren stated that the freedom to
marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Id. at 12.
Our freedoms are often acquired slowly, but our country has evolved as a beacon of liberty in what is sometimes a dark world.
These freedoms include a right to privacy.
The United States Supreme Court observed:
Wright v. State, 2014 WL 1908815 (2014)
We deal with a right of privacy older than the BILL OF RIGHTS-older than our political parties, older than our school system.
Marriage is a coming together for the better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial
or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
The Arkansas Supreme Court has previously addressed the right to privacy as it involves same-sex couples. In Jegley v. Picado,
the Arkansas Supreme Court struck down the sodomy statute as unconstitutional in violating Article 2, 2 and the right to
privacy. 349 Ark. 600, 638 (2002). Justice Brown, in Arkansas Dep't of Human Services v. Cole, noted that Arkansas has a
rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas
Constitution. 2011 Ark. 145, 380 S.W. 3d. 429, 435 (2011) (citing Jegley, id. at 632). The Arkansas Supreme Court applied a
heightened scrutiny and struck down as unconstitutional an initiated act that prohibited unmarried opposite-sex and same-sex
couples from adopting children. Id at 442. The exclusion of same-sex couples from marriage for no rational basis violates the
fundamental right to privacy and equal protection as described in Jegley and Cole, supra. The difference between opposite-sex
and same-sex families is within the privacy of their homes.
THEREFORE, THIS COURT HEREBY FINDS the Arkansas constitutional and legislative ban on same-sex marriage through
Act 144 of 1997 and Amendment 83 is unconstitutional.
*9 It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and
fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is
time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.
IT IS SO ORDERED this 9th day of May, 2014
<<signature>>
CHRISTOPHER CHARLES PIAZZA
CIRCUIT COURT JUDGE

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