Robert - Ellman@azag - Gov: Attorneys For Defendants

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Thomas C. Horne
Attorney General

Robert L. Ellman (AZ Bar No. 014410)
Solicitor General
Email: robert.ellman@azag.gov

Kathleen P. Sweeney (AZ Bar No. 011118)
Assistant Attorney General
1275 W. Washington
Phoenix, Arizona 85007-2997
Telephone: (602) 542-3333
Fax: (602) 542-8308
Email: kathleen.sweeney@azag.gov

Byron J . Babione (AZ Bar No. 024320)
J ames A. Campbell (AZ Bar No. 026737)
Kenneth J . Connelly (AZ Bar No. 025420)
J . Caleb Dalton (AZ Bar No. 030539)
Special Assistant Attorneys General
Alliance Defending Freedom
15100 N. 90th Street
Scottsdale, Arizona 85260
Telephone: (480) 444-0020
Fax: (480) 444-0028
Email: bbabione@alliancedefendingfreedom.org
Email: jcampbell@alliancedefendingfreedom.org
Email: kconnelly@alliancedefendingfreedom.org
Email: cdalton@alliancedefendingfreedom.org

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Nelda Majors, et al.,
Plaintiffs,
v.
Michael K. J eanes, in his official capacity
as Clerk of the Superior Court of
Maricopa County, Arizona, et al.,
Defendants.
Case No: 2:14-cv-00518-J WS
DEFENDANTS CONTROVERTING
STATEMENT OF FACTS IN
RESPONSE TO PLAINTIFFS
MOTION FOR SUMMARY
JUDGMENT
Case 2:14-cv-00518-JWS Document 79 Filed 09/16/14 Page 1 of 12

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Defendants submit this Controverting Statement of Facts in Response to Plaintiffs
Motion for Summary J udgment. The positions that Defendants adopt below are for
purposes of summary judgment only.
Any matters disputed in this case involve legislative factsthat is, facts that have
relevance to legal reasoning and the lawmaking process. Fed. R. Evid. 201, Advisory
Committee Note to Subdivision (a); see also Marshall v. Sawyer, 365 F.2d 105, 111 (9th
Cir. 1966) (legislative facts are general facts which help the tribunal decide questions of
law, policy, and discretion (internal quotation marks omitted)); United States v.
$124,570 U.S. Currency, 873 F.2d 1240, 1244 (9th Cir. 1989) (Kozinski, J .) (legislative
facts are those applicable to [an] entire class of cases); Ind. Harbor Belt R.R. Co. v. Am.
Cyanamid Co., 916 F.2d 1174, 1182 (7th Cir. 1990) (Posner, J .) (legislative facts are
facts relevant to shaping a general rule). Disputed questions of legislative fact do not
preclude summary judgment because legislative facts are best introduced through
documents rather than through trial evidence. See Fed. R. Evid. 201, Advisory
Committee Note to Subdivision (a) (many legislative facts are outside the domain of the
clearly indisputable); Daggett v. Commn on Governmental Ethics & Election Practices,
172 F.3d 104, 112 (1st Cir. 1999) (Boudin, J .) (legislative facts usually are not proved
through trial evidence but rather by material set forth in the briefs); Ind. Harbor Belt
R.R. Co., 916 F.2d at 1182 (legislative facts are facts reported in books and other
documents, and trials are not best suited to determine . . . legislative facts).
Defendants respond to Plaintiffs Statement of Facts as follows:
1. Defendants do not dispute Plaintiffs assertions in Paragraph 1.
2. Defendants dispute some of Plaintiffs assertions in Paragraph 2. Ms.
Majors is not a legal parent[] of Ms. Baileys grand-nieces because, as Plaintiffs admit
in Paragraph 3, Ms. Majors has no legal relationship to either of them.
3. Defendants dispute some of Plaintiffs assertions in Paragraph 3. Federal
law has many requirements for an individual to qualify as a surviving spouse eligible for

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Social Security benefits. See, e.g., 20 C.F.R. 404.335. Whether Ms. Majors and Ms.
Bailey would qualify for those benefits depends on factors that they have not established.
5. Defendants dispute some of Plaintiffs assertions in Paragraph 5. Mr.
Larance is not a legal parent of the minor girls referenced in that paragraph because, as
Plaintiffs admit in that same paragraph, Mr. Patterson became the girls legal father and
Mr. Larance did not become [an] adoptive father[] to the[] girls.
6. Defendants dispute some of Plaintiffs assertions in Paragraph 6. Arizona
law provides for joint adoption only by a husband and wife. Ariz. Rev. Stat. 8-
103(A). Allowing one partner in a same-sex relationship to adopt a child and then the
other partner to adopt the child as a stepparent would contravene the States decision to
limit joint adoption to only a husband and wife. Thus, even if Mr. Larance and Mr.
Patterson were married under Arizona law, it is not clear whether Mr. Larance could
petition to adopt the girls as a step-parent without amending other Arizona statutes.
8. Defendants do not dispute Plaintiffs assertions in Paragraph 8, except to
note that Plaintiffs allegation about Mr. Martinezs desire for additional disabled
veterans compensation has become moot. See Vasquez v. L.A. Cnty., 487 F.3d 1246,
1253 n.6 (9th Cir. 2007) ([A] case is moot . . . if a civil plaintiff dies where the cause of
action does not survive death.).
McQuires inability to obtain an Arizona death certificate that records him as Mr.
Martinezs surviving spouse, standing alone, does not block [his] access to . . . Social
Security benefits as [Mr. Martinezs] surviving spouse. Even if the State recognized Mr.
McQuires California marriage license, federal law independently bars him from
accessing Social Security benefits as Mr. Martinezs surviving spouse. Specifically, Mr.
McQuire cannot obtain those benefits because he received his marriage license less than
nine months before Mr. Martinez passed away. See 20 C.F.R. 404.335(a)(1); Social

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Security Program Operations Manual System, GN 00305.100, TN 31 (05-04), J uly 17,
2006, https://secure.ssa.gov/poms.nsf/lnx/0200305100 (last visited Sept. 15, 2014);
McQuire Supp. Decl. 5 (ECF No. 66). Nor can Mr. McQuire establish any of the
alternative requirements for obtaining those benefits. See 20 C.F.R. 404.335(a)(2)-(4).
Mr. McQuires declarations show that he did not expect Mr. Martinez to live for nine
months after obtaining the marriage license, that Mr. Martinezs death did not result by
accident or occur in the line of duty, that they did not previously marry, and that neither
of them has a child. See McQuire Supp. Decl. 5, 8-9 (ECF No. 66); McQuire Decl.
3-4, 10, 13-14 (ECF No. 61) (Ex. E).
12. Defendants dispute some of Plaintiffs assertions in Paragraph 12. I.Y. is
not Ms. Kathy Youngs legal son because, as Plaintiffs admit in that same paragraph,
her relationship with I.Y. has no legal recognition . . . under Arizona law. In addition,
Plaintiffs have not cited any legal authority indicating that the State of Arizona will
recognize that a child has two legal mothers. Cf. Ariz. Rev. Stat. 8-103(A) (permitting
joint adoption only by a husband and wife). Thus even if the State were to consider the
women as married to each other, it is not clear that Ms. Kathy Young would be able to
adopt I.Y. without amending other Arizona statutes.
13. Defendants dispute some of Plaintiffs assertions in Paragraph 13. In
Arizona, statutory parentage presumptions apply only to establish paternity of a father;
thus no parentage presumption[] would apply to Ms. Young. See Ariz. Rev. Stat. 25-
814(A) (A man is presumed to be the father of the child if [one of the conditions is
satisfied]).
Olson is not a legal parent[] of E. or S. because, as Plaintiffs admit in Paragraph 15, she
has no legal bond with them.

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15. Defendants dispute some of Plaintiffs assertions in Paragraph 15. Plaintiffs
have not cited any legal authority indicating that the State of Arizona will recognize that
a child has two legal mothers. Cf. Ariz. Rev. Stat. 8-103(A) (permitting joint adoption
only by a husband and wife). Thus, even if the State were to consider Ms. Olson and
Ms. Hoefle Olson as married to each other, it is not clear that Ms. Olson would be able to
adopt E. or S. without amending other Arizona statutes. In addition, statutory parentage
presumptions in Arizona apply only to establish paternity of a father; thus no parentage
presumption[] would apply to Ms. Olson. See Ariz. Rev. Stat. 25-814(A) (A man is
presumed to be the father of the child if [one of the conditions is satisfied]).
Burbank is not a legal father[] of D.B.T. or M.B.T. because, as Plaintiffs admit in that
same paragraph, he has no legal rights . . . with respect to the children.
limit joint adoption to only a husband and wife. Thus, even if the State were to consider
Mr. Burbank and Mr. Talanquer as married to each other, it is not clear that Mr. Burbank
would be able to access a stepparent adoption without amending other Arizona statutes.
Additionally, it is not clear that federal law considers Mr. Burbank and Mr. Talanquer a
married couple for all purposes.
18. Defendants dispute some of Plaintiffs assertions in Paragraph 18. It is not
clear that federal law considers Mr. Castro-Byrd and Mr. Castro-Byrd married for all
purposes.

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Social Security benefits. See, e.g., 20 C.F.R. 404.335. Whether Mr. Ralph would
qualify for those benefits depends on factors that he has not established.
Ahumadas inability to obtain an Arizona death certificate that records her as Ms.
Battistes surviving spouse, standing alone, does not prevent her from obtaining Social
Security benefits as a surviving spouse[]. Even if the State recognized Ms. Ahumadas
New Mexico marriage license, federal law independently bars her from accessing Social
Security benefits as Ms. Battistes surviving spouse. Specifically, Ms. Ahumada cannot
obtain those benefits because she received her marriage license less than nine months
before Ms. Battiste passed away. See 20 C.F.R. 404.335(a)(1); Social Security Program
Operations Manual System, GN 00305.100, TN 31 (05-04), J uly 17, 2006, https://secure.
ssa.gov/poms.nsf/lnx/0200305100 (last visited Sept. 15, 2014). Nor has Ms. Ahumada
established that she satisfies any of the alternative requirements for obtaining those
benefits. See 20 C.F.R. 404.335(a)(2)-(4).
26. Defendants do not dispute Plaintiffs assertions in Paragraph 26, but for the
sake of complete accuracy, Defendants add that Arizona declines to recognize all
marriages (not just those involving persons of the same-sex) that are void under its own
laws, Ariz. Rev. Stat. 25-112(A), and that Arizona prohibits all individuals residing in
this state from evad[ing] the laws of [Arizona] relating to marriage by going to another
state or country for solemnization of the marriage, Ariz. Rev. Stat. 25-112(C).
27. Defendants dispute some of Plaintiffs assertions in Paragraph 27. In 1999,
the Legislature did not amend Arizona Revised Statute Section 25-125 to state that a
valid marriage is one contracted by a male person and a female person with a proper
marriage license. Ariz. Rev. Stat. 25-125(A). That language was included in the
original version of that statute, which the Legislature passed in 1980. See 1999 Ariz.

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Legis. Serv. ch. 59, 5 (S.B. 1183) (indicating that the 1999 bill did not add the language
quoted above).
have not supported their allegation that the Arizona Legislature referred Proposition 102
to the People in order to reinforce the States exclusion of same-sex couples from
marriage. On the contrary, as Defendants Statement of Facts establish, the Legislature
referred Proposition 102 to the People in order to, among other things, ensure that the
definition of marriage in Arizona will be decided by the People.
30. Defendants dispute some of Plaintiffs assertions in Paragraph 30. That
paragraph misleadingly characterizes the arguments that members of the public submitted
in support of Proposition 102. The quotation that Plaintiffs seemingly reference in that
paragraph actually states as follows: Our agenda is not to punish, segregate, or
discriminate against gay/lesbian people, but to protect the safest unit in the world, the
family. . . . While we make no discrimination against gay persons, this voice stands as the
loudest trying to attack our sacred institution. Ocampo Decl. Ex. A at 4.
31. Defendants dispute some of Plaintiffs assertions in Paragraph 31. The
quoted statement of Peter Gentala (one of many citizens who expressed support for
Proposition 102) appears to be taken from Ocampo Declaration Exhibit A at 6, while the
quoted statement of Shauna Smith (one of many citizens who expressed support for
Proposition 102) appears to be taken from Ocampo Declaration Exhibit A at 5.
32. Defendants dispute some of Plaintiffs assertions in Paragraph 32.
Plaintiffs characterization of some supporters statements in support of Proposition 102
as stronger than others is utterly subjective and without foundation. The assertions of
both supporters and opponents of Proposition 102 speak for themselves and need no
interpretation. Moreover, the quoted statement of Pastor Frank Macias appears to be
taken from Ocampo Declaration Exhibit A at 6, while the quoted statement of Cecil Ash
appears to be taken from Ocampo Declaration Exhibit A at 5-6.

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33. Defendants dispute some of Plaintiffs assertions in Paragraph 33. It is not
clear what the phrase critically important rights and responsibilities comprises. Because
of the vagueness of this term and others like it in this paragraph, Defendants do not know
for sure whether marriage is the only route to these asserted rights and responsibilities
or whether marriage is a simpler and less expensive route to garner them. Moreover,
Arizona law provides for joint adoption only by a husband and wife. Ariz. Rev. Stat.
8-103(A). It is thus not clear whether a same-sex couple, even if they were recognized as
married, could jointly adopt a child under Arizona law without amending other Arizona
statutes. Also, Plaintiffs have not cited any legal authority indicating that the State of
Arizona will recognize that a child has two legal parents of the same sex. Cf. id. Thus,
even if the State were to consider same-sex couples as married, it is not clear that they
would be able to access Arizonas stepparent adoption process without amending other
Arizona statutes. Furthermore, in Arizona, the marital presumption of parentage creates
a presumption of paternity only where the man and the mother of the child [are]
married, Ariz. Rev. Stat. 25-814(A)(1); thus no such presumption would apply to
same-sex couples regardless of whether the State considers them to be married.
Additionally, Arizona law permits any adult, including Plaintiffs, to designate someone to
make caretaking decisions in times of death or disaster. See Ariz. Rev. Stat. 36-
3221(A) (A person who is an adult may designate another adult individual or other adult
individuals to make health care decisions on that persons behalf or to provide funeral
and disposition arrangements in the event of the persons death . . . .). And Arizona law
permits any adult, including Plaintiffs, to dispose of their assets through a will. See Ariz.
Rev. Stat. 14-2501.
35. Defendants dispute some of Plaintiffs assertions in Paragraph 35. Because
Arizona does not recognize marriage licenses that other States issue to same-sex couples,
it requires Plaintiffs to file individual tax returns. That Plaintiffs are treated differently in
this regard does not mean that they experience unequal tax treatment. Treating

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differently situated couples differently does not amount to unequal treatment. See Plyler
v. Doe, 457 U.S. 202, 216 (1982).
Social Security benefits. See, e.g., 20 C.F.R. 404.335. Whether Plaintiffs would qualify
for those benefits depends on factors that they have not established.
38. Plaintiffs assertions in Paragraph 38 have become moot. See Vasquez, 487
F.3d at 1253 n.6 ([A] case is moot . . . if a civil plaintiff dies where the cause of action
does not survive death.).
have not adequately supported with evidence their allegation that [s]ome same-sex
couples are unable to travel out of state to marry.
have not adequately supported with evidence their allegation that [s]ame-sex couples
and their children must live with . . . vulnerability and stress.
have not adequately supported with evidence their allegation that redefining marriage
will enable children to grow up feeling that their family is worthy of equal dignity and
respect.
103(A). Moreover, Plaintiffs have not cited any legal authority indicating that the State of
Arizona will recognize that a child has two legal parents of the same sex. Cf. id. Thus,
even if the State were to consider Plaintiffs as married, it is not clear that they would be
able to adopt children together without amending other Arizona statutes.

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limit joint adoption to only a husband and wife. Moreover, Plaintiffs have not cited any
legal authority indicating that the State of Arizona will recognize that a child has two
legal parents of the same sex. Cf. id. Thus, even if the State were to consider same-sex
couples as married, it is not clear that they would be able to access Arizonas stepparent
adoption process without amending other Arizona statutes.
have not adequately supported with evidence their allegation that [c]hildren from a
young age understand that marriage signifies an enduring family unit, and likewise
understand when the State has deemed a class of families less worthy than other families,
undeserving of marriage, and not entitled to the same societal recognition and support as
other families.
have not adequately supported with evidence, nor have they sufficiently explained, their
allegation that the States marriage policy frustrates their . . . self-determination.


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Respectfully submitted this 16th day of September, 2014.

s/ Byron J . Babione

Byron J . Babione
J ames A. Campbell
Kenneth J . Connelly
J . Caleb Dalton
Special Assistant Attorneys General

Thomas C. Horne
Attorney General

Robert L. Ellman
Solicitor General

Kathleen P. Sweeney
Assistant Attorney General

Attorneys for Defendants


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CERTIFICATE OF SERVICE
I hereby certify that I electronically transmitted the attached document to the
Clerks Office using the CM/ECF System for filing and service of a Notice of Electronic
Filing to the following recipients on this 16th day of September, 2014:

J ennifer C. Pizer
Carmina Ocampo
Lambda Legal Defense & Education Fund, Inc.
4221 Wilshire Blvd., Suite 280
Los Angeles, CA 90010
jpizer@lambdalegal.org
cocampo@lambdalegal.org

Paul F. Eckstein
Daniel C. Barr
Kirstin T. Eidenbach
Barry G. Stratford
Alexis E. Danneman
Perkins Coie LLP
2901 North Central Avenue, Suite 2000
Phoenix, AZ 85012-2788
PEckstein@perkinscoie.com
DBarr@perkinscoie.com
KEidenbach@perkinscoie.com
BStratford@perkinscoie.com
ADanneman@perkinscoie.com
DocketPHX@perkinscoie.com

Attorneys for Plaintiff

Dated: September 16, 2014
s/ Byron J . Babione

Byron J . Babione


Robert - Ellman@azag - Gov: Attorneys For Defendants

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