3:14-cv-00058 #38

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA

SOUTHEASTERN DIVISION

JANET E. JORGENSEN and
CYNTHIA A. PHILLIPS,
a married couple,
Plaintiffs,
versus

MICHAEL MONTPLAISIR, in his official
capacity as County Auditor of Cass County,
North Dakota,
WAYNE STENEHJEM, in his official capacity
as Attorney General of North Dakota,
RYAN RAUSCHENBERGER, in his official
capacity as Tax Commissioner of North
Dakota, and
JACK DALRYMPLE, in his official capacity as
Governor of North Dakota,
Defendants.

CASE NO. 3:14-cv-00058-RRE-KKK

PLAINTIFFS MEMORANDUM IN OPPOSITION
TO DEFENDANTS MOTION TO DISMISS
Case 3:14-cv-00058-RRE-KKK Document 38 Filed 08/22/14 Page 1 of 37

i

TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................................... i

TABLE OF AUTHORITIES ............................................................................................. iii

INTRODUCTION ............................................................................................................... 1

ARGUMENT ......................................................................................................................... 2

I. Defendants Argument Is Premised on an Erroneous View of
Federalism and Caselaw that Has Been Superseded By Supreme Court
Jurisprudence. ............................................................................................................ 2

A. North Dakotas Marriage Laws Must Respect Jan and Cindys
Individual Constitutional Rights of Equal Protection and Due
Process. ........................................................................................................ 2

B. Section 2 of DOMA Does Not Provide a Legitimate Basis for
Otherwise Constitutionally Invalid State Laws. ..................................... 5

C. The Language Cited by Defendants from Citizens v. Bruning Is
Dicta and Has Been Superseded by the Decision in Windsor. .............. 6

D. The Summary Dismissal in Baker v. Nelson Is Also Not
Controlling in This Case and Has Been Superseded By More
Recent Developments. .............................................................................. 8

II. Jan and Cindy Seek the Same Fundamental Right to Marital Recognition
As All Other North Dakotans. ............................................................................ 10

A. Defendants Err in Attempting to Reframe the Fundamental
Right Asserted as a New Right to Marry Someone of the Same
Sex. ............................................................................................................. 10

B. Defendants Misapprehend the Role of History when
Considering the Scope of Fundamental Rights. .................................. 11

III. North Dakotas Marriage Ban Cannot Survive Any Level of Judicial
Scrutiny. .................................................................................................................. 15

A. Defendants Urge an Erroneous Application of Rational Basis
Review. ...................................................................................................... 16

B. There Is No Rational Relationship Between North Dakotas
Marriage Ban and Encouraging Unintended Children to be
Raised by Married Couples. .................................................................... 18

ii

C. The North Dakota Legislature Cannot Rationally Believe
It Is Preferable for Children to be Raised by a Different-sex
Couple. ....................................................................................................... 20

D. Any Hypothetical Interest In Proceeding With Caution Before
Altering The Traditional Definition of Marriage Cannot
Sustain the Marriage Ban. ....................................................................... 21

IV. The North Dakota Marriage Ban Discriminates on the Basis of Sex. ........... 25

CONCLUSION ................................................................................................................... 26
CERTIFICATE OF SERVICE ......................................................................................... 29


iii

TABLE OF A UTHORITIES
Cases
A.L.F.L. v. K.L.L., No. 2014-CI-02421 (Bexar Cnty. Dist. Ct., Tex., Apr. 22, 2014) ............................. 2
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) .............................................................................................. 8
Baker v. Nelson, 409 U.S. 810 (1972) ................................................................................................................ 8
Baskin v. Bogan, No. 1:14-cv-00355-RLY-TAB, 2014 WL 2884868 (S.D. Ind. June 25, 2014)............... 1
Bishop v. Smith, No. 14-5003, 2014 WL 3537847 (10th Cir. July 18, 2014) ..................................... 1, 5, 10
Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) .................................................... 1, 5
Boddie v. Connecticut, 401 U.S. 371 (1971) .................................................................................................. 3, 12
Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014) ....................................................................... 1, 11, 19
Bostic v. Schaefer, No. 14-1167, 2014 WL 3702493 (4th Cir. July 28, 2014) ............................... 1, 9-10, 18
Bourke v. Beshear, No. 3:13-cv-750-H, 2014 WL 556729 (W.D. Ky. Feb 12, 2014) ................. 1-2, 10, 24
Bowers v. Hardwick, 478 U.S. 186 (1986) ................................................................................................. 12, 23
Bradwell v. Illinois, 83 U.S. 130 (1873) ............................................................................................................. 14
Brandt v. Keller, 109 N.E.2d 729 (Ill. 1952) .................................................................................................... 14
Bray v. Alexandria Womens Health Clinic, 506 U.S. 263 (1993) .................................................................... 15
Brenner v. Scott, No. 4:14cv107-RH/CAS (N.D. Fla. Aug. 21, 2014) .......................................................... 1
Brinkman v. Long, No. 13CV32572, 2014 WL 3408024
(Adams Cnty. Dist. Ct., Colo., Jul. 9, 2014) ............................................................................................... 2
Bullock v. Minnesota, 611 F.2d 258 (8th Cir. 1979) .......................................................................................... 3
Califano v. Goldfarb, 430 U.S. 199 (1977) ........................................................................................................ 15
Califano v. Jobst, 434 U.S. 47 (1977) ......................................................................................................... 22, 23
Califano v. Westcott, 443 U.S. 76 (1979) .................................................................................................... 14, 22
California Water Serv. Co. v. City of Redding, 304 U.S. 252 (1938) ................................................................. 10
Christian Legal Socy Ch. of the Univ. of Cal., Hastings Coll. of Law v. Martinez,
130 S. Ct. 2971 (2010) ................................................................................................................................. 15

iv

Citizens v. Bruning, 455 F.3d 859 (8th Cir. 2006) ........................................................................................ 6, 7
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ..................................................... 16, 17, 23, 24
Damron v. Damron, 670 N.W.2d 871 (N.D. 2003) ........................................................................................ 21
Darby v. Orr, No. 12-CH-19718 (Ill. Cir. Ct., Cook Cnty. Sept. 27, 2013) ................................................. 2
De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014).......................................................................... 1, 6
DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014) ................................................................. 1, 24-25
Frontiero v. Richardson, 411 U.S. 677 (1973) ...................................................................................................... 9
Garden State Equal. v. Dow, 82 A.3d 336 (N.J. Super. 2013) ......................................................................... 2
Geiger v. Kitzhaber, No. 6:13-cv-01834-MC, 2014 WL 2054264 (D. Or. May 19, 2014) .................... 1, 18
Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010) .............................................................. 22
Ginters v. Frazier, 614 F.3d 822 (8th Cir. 2010) ............................................................................................... 8
Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) ................................ 18, 19, 22
Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003) .................................................................. 26
Graham v. Richardson, 403 U.S. 365 (1971) ....................................................................................................... 6
Gray v. Orr, No. 13-C-8449, 2013 WL 6355918 (N.D. Ill. Dec. 5, 2013) ................................................... 2
Griego v. Oliver, 316 P.3d 865 (N.M. 2013) ...................................................................................................... 2
Hall v. Florida, 134 S. Ct. 1986 (2014) ............................................................................................................ 25
Henry v. Himes, No. 1:14cv129, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014) ........................... 10, 11
Hicks v. Miranda, 422 U.S. 332 (1975) ............................................................................................................. 9
Hodgson v. Minnesota, 497 U.S. 417 (1990) ..................................................................................................... 10
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ................................................................................................... 9
Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612 (1985) ................................................................................. 16
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ............................................................................................... 10
In re Matson, 509 B.R. 860 (Bankr. E.D. Wis. 2014) ...................................................................................... 5
In Re: Estate of Bangor, No. 502014CP001857XXXXMB
(Palm Beach Cnty. Cir. Ct., Fla., Aug. 5, 2014) ......................................................................................... 2

v

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) .......................................................................... 21, 25, 26
Jackson v. City & Cnty. of Denver, 124 P.2d 240 (Colo. 1942) ...................................................................... 13
Jones v. Lorenzen, 441 P.2d 986 (Okla. 1965) ................................................................................................. 13
Jones v. St. Paul Cos., Inc., 495 F.3d 888 (8th Cir. 2007) ............................................................................ 7, 8
Kelo v. City of New London, 545 U.S. 469 (2005) ............................................................................................ 17
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) ........................................ 1, 11, 12, 16, 21, 24, 26
Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. June 25, 2014) ............... 1, 6, 8, 10, 11, 24
Kusper v. Pontikes, 414 U.S. 51 (1973) ............................................................................................................... 5
Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 WL 1909999 (D. Idaho May 13, 2014) ........................... 1
Lawrence v. Texas, 539 U.S. 558 (2003) ................................................................................... 9, 12, 14, 15, 23
Lee v. Orr, 13-cv-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) ............................................................ 1
Levy v. Louisiana, 391 U.S. 68 (1968) .............................................................................................................. 23
Lindsey v. Normet, 405 U.S. 56 (1972) ............................................................................................................. 16
Love v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky. July 1, 2014)....................................................................... 1
Loving v. Virginia, 388 U.S. 1 (1967) .................................................................................................... 3, 13, 26
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ............................................................................................................. 15
Mandel v. Bradley, 432 U.S. 173 (1977) ............................................................................................................. 8
Massachusetts v. EPA, 549 U.S. 497 (2007) .................................................................................................... 22
Massachusetts v. U.S. Dept of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) ...................................... 22
McDonald v. Bd. of Election Comm'rs, 394 U.S. 802 (1969) ............................................................................ 22
McGee v. Cole, No. 3:13-cv-24068, 2014 WL 321122 (S.D. W. Va. Jan. 29, 2014) .................................. 10
McLaughlin v. Florida, 379 U.S. 184 (1964) .................................................................................................... 26
Merritt v. Atty Gen., No. 13-00215-BAJ-SCR, 2013 WL 6044329 (M.D. La. Nov. 13, 2013) ................. 8
Meyer v. Nebraska, 262 U.S. 390 (1923) ............................................................................................................ 3
Naim v. Naim, 87 S.E.2d 749 (Va. 1955), judgment vacated, 350 U.S. 891 (1955),
adhered to on remand, 90 S.E.2d 849 (1956) ........................................................................................... 13-14

vi

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ....................................................................................... 25
Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) ................................................................... 2, 6
Pace v. Alabama, 106 U.S. 583 (1883) ............................................................................................................... 3
Palmore v. Sidoti, 466 U.S. 429 (1984) ............................................................................................................. 23
Pareto v. Ruvin, No. 14-1661 CA 24 (Miami-Dade Cnty. Cir. Ct., July 25, 2014) ...................................... 2
Passmore v. Astrue, 533 F.3d 658 (8th Cir. 2008) ............................................................................................. 7
People v. Liberta, 474 N.E.2d 567 (N.Y. 1984) .............................................................................................. 15
Perez v. Sharp, 198 P.2d 17 (Cal. 1948) ........................................................................................................... 14
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal 2010) ..................................................................... 18
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) .............................................. 12
Reed v. Reed, 404 U.S. 71 (1971) ...................................................................................................................... 16
Robb v. Connolly, 111 U.S. 624 (1884) ............................................................................................................... 5
Romer v. Evans, 517 U.S. 620 (1996) .............................................................................................. 9, 16, 17, 18
Saenz v. Roe, 526 U.S. 489 (1999) ..................................................................................................................... 2
Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623 (2014) .......................................................... 4-5
Scott v. State, 39 Ga. 321 (Ga. 1869) ............................................................................................................... 13
Shephard v. U.S., 735 F.3d 797 (8th Cir. 2013) ................................................................................................ 7
Skinner v. Oklahoma, 316 U.S. 535 (1942) ........................................................................................................ 4
Sosna v. Iowa, 419 U.S. 393 (1975) .................................................................................................................... 3
T.L. ex rel. Ingram v. U.S., 443 F.3d 956 (8th Cir. 2006) ................................................................................ 8
Tanco v. Haslam, No. 3:13-cv-01159, 2014 WL 997525 (M.D. Tenn. Mar 14, 2014) ................................ 1
Thompson v. Thompson, 218 U.S. 611 (1910) ................................................................................................... 14
Troxel v. Granville, 530 U.S. 57 (2000) .............................................................................................................. 3
Turner v. Safley, 482 U.S. 78 (1987) ...................................................................................................... 4, 12, 26
U.S. Dept of Agric. v. Moreno, 413 U.S. 528 (1973) ................................................................................ 16, 17

vii

United States v. Windsor, 133 S. Ct. 2675 (2013) ......................................... 1, 2, 4, 7-8, 9, 11, 14, 17, 19, 24
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ............................................................................................ 19
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) .............................................................................. 5
Washington v. Glucksberg, 521 U.S. 702 (1997) ............................................................................................... 11
Watson v. City of Memphis, 373 U.S. 526 (1963) ............................................................................................. 23
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ................................................................................................. 15
Whitewood v. Wolf, 992 F. Supp. 2d 982 (M.D. Pa. 2014) .............................................................................. 1
Williams v. North Carolina, 317 U.S. 287 (1942) .............................................................................................. 3
Williams v. Rhodes, 393 U.S. 23 (1968) .............................................................................................................. 3
Windsor v. U.S., 699 F.3d 169 (2d Cir. 2012) ................................................................................................ 19
Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014) .......................................................................... 1, 24
Wright v. Arkansas, No. 60CV-13-2662, 2014 WL 1908815
(Pulaski Cnty. Cir. Ct., May 9, 2014) ........................................................................................................... 2
Young v. Hayes, 218 F.3d 850 (8th Cir. 2000) .................................................................................................. 8
Zablocki v. Redhail, 434 U.S. 374 (1978) .............................................................................................. 4, 10, 13
Zobel v. Williams, 457 U.S. 55 (1982) .............................................................................................................. 16
Statutes
28 U.S.C. 1257(2) ............................................................................................................................................ 8
28 U.S.C. 1738C .............................................................................................................................................. 5
N.D. Cent. Code 14-03-01 .......................................................................................................................... 25
N.D. Const. art. XI, 28 ................................................................................................................................ 25
Other Authorities
Virginia L. Hardwick, Punishing the Innocent: Unconstitutional Restrictions on Prison Marriage and Visitation,
60 N.Y.U. L. REV. 275 (1985) .................................................................................................................... 12

Merits Brief of Bipartisan Legal Advisory Group, United States v. Windsor, 133 S. Ct. 2675 (2013)
(No. 12-307) 2013 WL 267026, at *21 (2013) ........................................................................................... 7

1

INTRODUCTION
Defendants have presented no basis for dismissing the well-pleaded Complaint of Plaintiffs
Janet Jorgensen (Jan) and Cynthia Phillips (Cindy) (together, Plaintiffs). Instead, Defendants
misread the powers granted to states under the U.S. Constitution and cling to caselaw that has been
superseded by significant doctrinal developments and does not control this case. As the Supreme
Court has emphasized repeatedly, state authority to legislate concerning marriage exists subject to
constitutional guarantees of liberty and equality. Laws that target same-sex couples for denial of
marital recognition violate both equal protection and due process guarantees because these laws
have both the purpose and effect of impos[ing] a disadvantage, a separate status, and so a stigma
on same-sex couples relationships, and because such laws demean those persons who are in a
lawful same-sex marriage. United States v. Windsor, 133 S. Ct. 2675, 2693, 2695 (2013). In the wake of
Windsor, virtually every court to consider the issue has reached the conclusion that state laws
prohibiting the celebration and recognition of marriages by same-sex couples are unconstitutional.
1

1
See Bostic v. Schaefer, No. 14-1167, 2014 WL 3702493 (4th Cir. July 28, 2014), affirming Bostic v.
Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014) (invalidating Virginias ban); Bishop v. Smith, No. 14-
5003, 2014 WL 3537847 (10th Cir. July 18, 2014); affirming Bishop v. U.S. ex rel. Holder, 962 F.
Supp. 2d 1252 (N.D. Okla. 2014) (invalidating Oklahomas ban); Kitchen v. Herbert, No. 13-4178,
2014 WL 2868044 (10th Cir. June 25, 2014), affirming Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D.
Utah 2013) (invalidating Utahs ban); Brenner v. Scott, No. 4:14cv107-RH/CAS (N.D. Fla. Aug.
21, 2014) (preliminary injunction); Love v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky. July 1, 2014)
(invalidating Kentuckys ban); Baskin v. Bogan, No. 1:14-cv-00355-RLY-TAB, 2014 WL 2884868
(S.D. Ind. June 25, 2014) (invalidating Indianas ban); Wolf v. Walker, 986 F. Supp. 2d 982 (W.D.
Wis. 2014) (invalidating Wisconsins ban); Whitewood v. Wolf, 992 F. Supp. 2d 982 (M.D. Pa.
2014) (invalidating Pennsylvanias ban); Geiger v. Kitzhaber, No. 6:13-cv-01834-MC, 2014 WL
2054264 (D. Or. May 19, 2014), appeal docketed, No. 14-35427 (9th Cir. May 16, 2014)
(invalidating Oregons ban); Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 WL 1909999 (D.
Idaho May 13, 2014), appeal docketed, Nos. 14-35420, 14-35421 (9th Cir. May 15, 2014)
(invalidating Idahos ban); DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014), appeal
docketed, No. 14-1341 (6th Cir. Mar. 21, 2014) (invalidating Michigans ban); Tanco v. Haslam, No.
3:13-cv-01159, 2014 WL 997525 (M.D. Tenn. Mar 14, 2014) (preliminary injunction), appeal
docketed, No. 14-5297 (6th Cir. Mar. 19, 2014) (invalidating Tennessees ban); De Leon v. Perry, 975
F. Supp. 2d 632 (W.D. Tex. 2014) (preliminary injunction), appeal docketed, No. 14-50196 (5th Cir.
Mar. 1, 2014) (invalidating Texass ban); Lee v. Orr, 13-cv-8719, 2014 WL 683680 (N.D. Ill. Feb.
21, 2014) (invalidating Illinoiss ban); Bourke v. Beshear, No. 3:13-cv-750-H, 2014 WL 556729

2

For all of the same reasons that have led other courts to overturn bans on marriage for
same-sex couples, this Court should deny Defendants Motion to Dismiss, grant Plaintiffs
previously filed Motion for Summary Judgment, and declare that denying same-sex spouses
recognition of valid out-of-state marriages violates the United States Constitutions guarantees of
due process and equal protection.
ARGUMENT
I. Defendants Argument Is Premised on an Erroneous View of Federalism and
Caselaw that Has Been Superseded By Supreme Court Jurisprudence.
A. North Dakotas Marriage Laws Must Respect Jan and Cindys
Individual Constitutional Rights of Equal Protection and Due Process.
Defendants drastically overstate the authority granted to North Dakota by the U.S.
Constitution to classify persons who may validly marry. While states have the historic and essential
authority to define the marital relation, the Supreme Court has long subjected that authority to
constitutional limitations explaining that [s]tate laws defining and regulating marriage, of course,
must respect the constitutional rights of persons[.] Windsor, 133 S. Ct. at 2691-92. Regardless of the
substantive area addressed by a law, a States authority to legislate is always subject to the
constitutional rights of individuals. See Saenz v. Roe, 526 U.S. 489, 508 (1999) ([N]either Congress
nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment.);

(W.D. Ky. Feb 12, 2014), appeal docketed, No. 14-5291 (6th Cir. Mar. 19, 2014) (invalidating
Kentuckys ban); Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013), appeal docketed, 14-
3057 (6th Cir. Jan. 22, 2014) (invalidating Ohios ban); In Re Estate of Bangor, No.
502014CP001857XXXXMB (Palm Beach Cnty. Cir. Ct., Fla., Aug. 5, 2014); Pareto v. Ruvin, No.
14-1661 CA 24 (Miami-Dade Cnty. Cir. Ct., July 25, 2014); Wright v. Arkansas, No. 60CV-13-
2662, 2014 WL 1908815 (Pulaski Cnty. Cir. Ct., May 9, 2014) (invalidating Arkansas ban); Gray
v. Orr, No. 13-C-8449, 2013 WL 6355918 (N.D. Ill. Dec. 5, 2013) (invalidating Illinois ban);
Darby v. Orr, No. 12-CH-19718, (Ill. Cir. Ct., Cook Cnty. Sept. 27, 2013) (citing Windsor in
denying motion to dismiss state court challenge to state marriage ban); Garden State Equal. v. Dow,
82 A.3d 336 (N.J. Super. 2013); Griego v. Oliver, 316 P.3d 865 (N.M. 2013) (citing Windsor in
denying stay pending appeal of judgment declaring state marriage ban unconstitutional);
Brinkman v. Long, No. 13CV32572, 2014 WL 3408024 (Adams Cnty. Dist. Ct., Colo., Jul. 9, 2014)
(invalidating Colorados ban); A.L.F.L. v. K.L.L., No. 2014-CI-02421 (Bexar Cnty. Dist. Ct.,
Tex., Apr. 22, 2014) (declaring Texas ban unconstitutional on its face).

3

Williams v. Rhodes, 393 U.S. 23, 29 (1968) ([T]he Constitution is filled with provisions that grant
Congress or the States specific power to legislate in certain areas; these granted powers are always
subject to the limitation that they may not be exercised in a way that violates other specific
provisions of the Constitution.); Bullock v. Minnesota, 611 F.2d 258, 259-60 (8th Cir. 1979) (a states
reserved right to regulate elections and prescribe qualifications for statewide political offices
pursuant to the Tenth Amendment may not be exercised in a manner that violates equal protection).
These Constitutional constraints apply equally to laws regulating marriage, divorce, and other
domestic-relations matters. The Supreme Court has never hesitated to subject a law governing
domestic relations to constitutional review, even while recognizing the authority of the states over
such matters, including in those cases cited by Defendants. See, e.g., Troxel v. Granville, 530 U.S. 57, 66
(2000) (striking down Washington statute that unconstitutionally infringed the fundamental right of
parents to make decisions concerning the care, custody, and control of their children); Sosna v. Iowa,
419 U.S. 393, 404-10 (1975) (analyzing whether the plaintiffs equal protection and due process right
were infringed by Iowas divorce residency requirement); Boddie v. Connecticut, 401 U.S. 371, 377
(1971) (striking statute requiring access fees for divorce courts as violating plaintiffs due process
rights); Williams v. North Carolina, 317 U.S. 287, 298-99 (1942) (addressing whether states ability to
alter within its own borders the marriage status of the spouse domiciled there faced any
constitutional barrier in the form of due process violations). Further, the Court has issued a clear
line of cases recognizing that federal guarantees of equal protection and due process set a floor
below which no states marriage law may fall. See, e.g., Loving v. Virginia, 388 U.S. 1, 7 (1967)
(declaring unconstitutional Virginias statutes criminalizing interracial marriage, overruling Pace v.
Alabama, 106 U.S. 583 (1883), and noting that, regardless of the states police power over marriage,
the state could not contend . . . that its powers to regulate marriage are unlimited notwithstanding
the commands of the Fourteenth Amendment . . . in light of Meyer v. Nebraska, 262 U.S. 390 (1923),

4

and Skinner v. Oklahoma, 316 U.S. 535 (1942).); Zablocki v. Redhail, 434 U.S. 374, 386-87 (1978)
(noting that reasonable regulations that do not significantly interfere with decisions to enter into
the marital relationship may legitimately be imposed, a Wisconsin law denying marriage to those
noncompliant with child-support obligations is unconstitutional because it clearly does interfere
directly and substantially with the right to marry); Turner v. Safley, 482 U.S. 78, 99 (1987) (Missouri
prison regulation imposing almost complete ban on the decision to marry held unconstitutional).
Defendants suggestion that Windsor gives states free reign to exclude same-sex couples from
marriage under federalism principles completely misconstrues the Courts holding. Contrary to
Defendants strained interpretation, the Windsor Court explicitly rejected any characterization of its
decision as being based solely on federalism principles, stating that the Court found it unnecessary
to decide whether [DOMAs] federal intrusion on state power is a violation of the Constitution,
because it disrupts the federal balance. 133 S. Ct. at 2692. Though recognizing that the regulation
of marriage has historically been the province of the states, Windsor struck down DOMA for reasons
quite apart from principles of federalism because DOMA violates basic due process and equal
protection principles. Id. at 2692-93; see also id. at 2709 (Scalia, J., dissenting) ([T]he real rationale of
todays opinion . . . is that DOMA is motivated by bare . . . desire to harm couples in same-sex
marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state
laws denying same-sex couples marital status.). In the same vein, North Dakotas marriage ban
violates Plaintiffs equal protection and due process rights and North Dakota cannot invoke
principles of federalism to shield the marriage ban from review.
When rights afforded by the U.S. Constitution are being denied, it is the duty of the federal
courts to intervene. As the Supreme Court recently reiterated, it is a well-established principle that
when hurt or injury is inflicted . . . by the encouragement or command of laws or other state action,
the Constitution requires redress by the courts. Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct.

5

1623, 1637 (2014); see also Kusper v. Pontikes, 414 U.S. 51, 55 (1973) (quoting Robb v. Connolly, 111 U.S.
624, 637 (1884), and noting the solemn responsibility of the federal courts to guard, enforce, and
protect every right granted or secured by the constitution of the United States)
2
. Our system of
government entrusts the courts with responsibility to check the majority when it lashes out to strip
constitutional protections from a disfavored groups families. Federalism is not just a bulwark
against federal government overreach, as Defendants contend; it is also an essential check on state
power, and for that reason, North Dakotas marriage ban cannot stand.
B. Section 2 of DOMA Does Not Provide a Legitimate Basis for
Otherwise Constitutionally Invalid State Laws.
Defendants argue that North Dakotas decision not to recognize marriages of same-sex
couples is specifically authorized by Section 2 of the DOMA, which provides that:
No State . . . shall be required to give effect to any public act, record, or judicial
proceeding of any other State . . . respecting a relationship between persons of the
same sex that is treated as a marriage under the laws of such other State . . . .

(DE 27, at 6 (quoting 28 U.S.C. 1738C).) Section 2 is a permissive federal statute in that [i]t does
not mandate that states take any particular action, does not remove any discretion from states, does
not confer benefits upon non-recognizing states, and does not punish recognizing states. Bishop,
962 F. Supp. 2d at 1266-67, affd, 2014 WL 3537847 (10th Cir. July 18, 2014). At most, the statute
purports to remove the Full Faith and Credit Clause as a potential obstacle to North Dakotas ability
to refuse recognition. See, e.g., id. at 1266; In re Matson, 509 B.R. 860, 863 (Bankr. E.D. Wis. 2014).
But, Section 2 of DOMA does not provide a legitimate basis for otherwise constitutionally invalid

2
Defendants repeated references to the ability of the people of North Dakota to decide the
definition of marriage, (DE 27, at 6), do not change the constitutional calculus. See W. Va. 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. . . . [F]undamental rights may not be submitted to vote; they depend on the outcome of
no elections.).

6

state laws, like . . . marriage recognition bans . . . . Obergefell, 962 F. Supp. 2d, 981 n. 9 (S.D. Ohio
2013).
Plaintiffs have challenged North Dakotas marriage ban because the provisions and
enforcement of those laws deny them equal protection and due process. (See DE 1, 61-90.)
Whatever powers Congress may have under the Full Faith and Credit Clause, [it] does not have the
power to authorize the individual States to violate the Equal Protection Clause. De Leon, 975 F.
Supp. 2d 661; see also Kitchen, 2014 WL 2868044, at *16 n.6 (Because we conclude that marriage is a
fundamental right and the states arguments for restricting it to opposite-sex couples fail strict
scrutiny, appellants arguments regarding 2 of DOMA also fail on the merits. Congress cannot
authorize a state to violate the Fourteenth Amendment.). In fact, the U.S. Supreme Court rejected
an argument similar to the one advanced by Defendants here, finding that a state could not impose a
discriminatory residency requirement on non-citizens seeking government aid despite the states
claim that a federal statute authorized states to set their own guidelines. See Graham v. Richardson, 403
U.S. 365, 382-83 (1971). Because Section 2 of DOMA cannot legitimize state laws that violate the
Fourteenth Amendment, Defendants argument fails.
C. The Language Cited by Defendants from Citizens v. Bruning Is Dicta
and Has Been Superseded by the Decision in Windsor.
Defendants incorrectly contend that this Court is bound by the decision in Citizens v. Bruning,
455 F.3d 859 (8th Cir. 2006), and in citing the case, ignore that the language that they rely on is
clearly dicta. In any event, it has been superseded by the decision in Windsor. As Plaintiffs made clear
in their Brief in Support of their Motion for Summary Judgment (DE 14, at 28-29), Citizens involved
completely different issues raised by organizational plaintiffs, and in no way addressed the individual
constitutional deprivations being experienced by a married couple whose marriage a state is refusing
to recognize. Citizens presented claims that Article 1, Section 29 of the Nebraska Bill of Rights

7

barred Nebraskans from seeking legislative remedies, injured their right to political participation, and
constituted a bill of attainder. 455 F.3d at 863. The Citizens plaintiffs explicitly disclaimed any
argument about an affirmative right to marry or marriage recognition such as those raised by the
Plaintiffs here. (See DE 14, at 28 n.18 (citing Br. of Plaintiffs-Appellees in Citizens).)
The present case is markedly different. Jan and Cindy have been denied a concrete,
fundamental right that other North Dakotans enjoy: the right to marry and have their valid out-of-
state marriage recognized by the State, and to receive the myriad local, state, and federal benefits that
flow from that recognition. Citizens did not provide the Eighth Circuit with an opportunity to rule
on that right.
Rather, given the political participation claims raised in Citizens and the total lack of any
claim in that case regarding the constitutionality of a marriage ban, any discussion by that court of
the merits of Nebraskas decision to exclude same-sex couples from marriage is dicta. See Passmore v.
Astrue, 533 F.3d 658, 661 (8th Cir. 2008) (defining dicta as judicial comment made while delivering
a judicial opinion, but one that is unnecessary to the decision in the case and therefore not
precedential). Any comment on possible justifications for such a ban was necessarily also dicta, and
this Court is not bound by it. See Shephard v. U.S., 735 F.3d 797, 798 (8th Cir. 2013) (affirming a
district court decision not to follow circuit dicta and noting that there is no obligation to do so).
Furthermore, dicta becomes even less persuasive when it is undermined by subsequent
jurisprudence. See Jones v. St. Paul Cos., Inc., 495 F.3d 888, 893 (8th Cir. 2007). The dicta in Citizens has
been wholly undermined by Windsor, which rejected arguments by DOMAs proponents that
procreation-related interests could sustain the federal governments refusal to recognize the
marriages of same-sex couples
3
in holding that no legitimate purpose overcomes [DOMAs]

3
See Merits Brief of Bipartisan Legal Advisory Group, United States v. Windsor, 133 S. Ct. 2675
(2013) (No. 12-307) 2013 WL 267026, at *21 (2013).

8

purpose and effect to disparage and injure married same-sex couples. 133 S. Ct. at 2696.
4
Given the
impact of Windsor, this Court is not in any way bound by Citizens. See Ginters v. Frazier, 614 F.3d 822,
829 (8th Cir. 2010) (subsequent Supreme Court rulings implicitly abrogate established Eighth Circuit
analysis); T.L. ex rel. Ingram v. U.S., 443 F.3d 956, 960 (8th Cir. 2006) (holding same and recognizing
that it is well settled); Young v. Hayes, 218 F.3d 850 (8th Cir. 2000) (holding that district court erred
by failing to apply intervening U.S. Supreme Court precedent rather than prior Eighth Circuit
precedent).
D. The Summary Dismissal in Baker v. Nelson Is Also Not Controlling in
This Case and Has Been Superseded By More Recent Developments.
Defendants also invoke Baker v. Nelson, 409 U.S. 810 (1972), a 40-year-old summary
dismissal of claims by a same-sex couple seeking to marry in Minnesota, to argue that the Supreme
Court has insulated challenges to marriage bans from lower court review.
5
(DE 27, at 10.) This
argument, which has been rejected by every federal court to consider it since Windsor,
6
has several
fatal flaws. First, summary dismissals are inherently limited in nature, binding lower courts only on
the precise issues presented in the statement of jurisdiction and without validating in any way the
reasoning of the underlying decision. See Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). A
summary dismissal for lack of a substantial federal question issued without an opinion, like Baker, is

4
As Plaintiffs further set forth, Windsor and subsequent jurisprudence also abrogate Citizens
application of rational basis. (DE 14, at 17.)
5
Baker arose from a suit filed in Minnesota state court by a same-sex couple seeking the freedom
to marry under the federal constitution. 191 N.W.2d 185, 186 (Minn. 1971). After the Minnesota
Supreme Court rejected their claims, the couple appealed to the U.S. Supreme Court pursuant to
former 28 U.S.C. 1257(2). Until 1988, this statute afforded the Supreme Court mandatory
appellate jurisdiction for review of state supreme court decisions adjudicating the
constitutionality of a state law; the statute was subsequently replaced with review by writ of
certiorari. The Supreme Court summarily dismissed the Minnesota couples appeal, which was
based solely on a claim of sex discrimination, for want of a substantial federal question. Baker,
409 U.S. at 810.
6
See Kitchen, 2014 WL 2868044, at *25-26 (collecting cases). The only court to adopt this argument
post-Windsor failed to consider whether doctrinal developments had undermined Baker. Merritt v.
Atty Gen., No. 13-00215-BAJ-SCR, 2013 WL 6044329 (M.D. La. Nov. 13, 2013).

9

an affirmance of the judgment only, and the rationale of the affirmance may not be gleaned solely
from the opinion below. Id. Baker did not address the claims of a couple like Jan and Cindy, who
are already legally married and are seeking to have their marriage from Minnesota recognized by the
State of North Dakota. Baker was a case seeking the affirmative right to marry in Minnesota, and
was argued and decided long before any state or modern nation permitted same-sex couples to
marry. The claim that Plaintiffs advance was factually impossible when Baker was decided, was not
addressed by the Minnesota court, and played no role in the Supreme Courts determination that
there was not a substantial federal question in that case, and as a result, does not control in this case.
Second, subsequent developments in the law have vitiated Bakers limited precedential force.
A summary dismissal is not binding if there have been intervening changes in governing law. See
Hicks v. Miranda, 422 U.S. 332, 344 (1975). In the intervening decades since Baker, landmark
developments have vastly changed the constitutional landscape. Baker rejected the appellants sex
discrimination claims before the Supreme Court recognized that sex-based classifications require
heightened scrutiny, see Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (plurality op.); before Romer v.
Evans held that a bare desire to harm gay people cannot constitute a legitimate government interest,
see 517 U.S. 620, 634-35 (1996); before Lawrence v. Texas established that lesbian and gay individuals
have the same liberty interest in developing and maintaining intimate, family relationships as
heterosexuals, see 539 U.S. 558, 578 (2003); and before Windsor invalidated federal anti-marriage
legislation, see 133 S. Ct. at 2693. This is precisely why courts addressing post-Windsor challenges to
state marriage bans have held that Baker did not determine the outcome.
7
See, e.g., Bostic, 2014 WL

7
Perhaps the most persuasive argument that Baker v. Nelson has been undermined by doctrinal
developments and is no longer controlling is the Supreme Courts most recent disposition of
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). There, the Court dismissed an appeal from the
district court decision striking down Californias constitutional ban on marriage by same-sex
couples on the ground that the intervening defendants/appellees lacked standing to appeal. The
dismissal effectively vacated the Ninth Circuits opinion, but permitted the district court

10

3702493 at *8; Kitchen, 2014 WL 2868044 at *8; Bishop, 2014 WL 3537847; Bourke, 2014 WL 556729,
at *1; McGee v. Cole, No. 3:13-cv-24068, 2014 WL 321122, at *9 (S.D. W. Va. Jan. 29, 2014). This
Court should reach the same conclusion.
II. Jan and Cindy Seek the Same Fundamental Right to Marital Recognition As
All Other North Dakotans.
A. Defendants Err in Attempting to Reframe the Fundamental Right
Asserted as a New Right to Marry Someone of the Same Sex.
Defendants readily acknowledge that marriage is a fundamental right. (DE 27, at 27.)
However, in an attempt to persuade the Court to apply rational basis review (which the marriage ban
still fails, see Section III, infra), Defendants try to reframe this case as being about a right solely to
same-sex marriage, which they assert is too recent a claim to be fundamental. (DE 27, at 28-29.)
This is an improperly narrow description of the liberty interests at stake, and this same argument
already has been rejected by numerous courts. See, e.g., Bostic, 2014 WL 3702493 at *9; Kitchen, 2014
WL 2868044 at *12; Henry v. Himes, No. 1:14cv129, 2014 WL 1418395, at *7-8 (S.D. Ohio Apr.
14, 2014); In re Marriage Cases, 183 P.3d 384, 430 (Cal. 2008).
Contrary to Defendants claims, the Supreme Court has made clear that the liberty interest at
stake in marriage cases is freedom of choice of whom to marry, in recognition of the respect for the
autonomy that the Constitution commands when it comes to the personal decisions at stake here
decisions about with whom a person will build a life and a family. See Zablocki, 434 U.S. at 387
(finding unconstitutional a burden on the right to marry because it affected individuals freedom of
choice in an area in which we have held such freedom to be fundamental) (emphasis added); Hodgson
v. Minnesota, 497 U.S. 417, 435 (1990) (explaining that the regulation of constitutionally protected

judgment to stand. If a federal challenge to the California marriage ban (similar to the one now
before this Court) had failed to raise a substantial federal question under Baker, as the Petitioners
in Hollingsworth raised and argued, the Supreme Court would have reversed and dismissed the
district court decision rather than let that decision stand. It is axiomatic that a district court lacks
subject matter jurisdiction if no substantial federal question is presented. See California Water Serv.
Co. v. City of Redding, 304 U.S. 252 (1938).

11

decisions, such as . . . whom [to] marry, must be predicated on legitimate state concerns other than
disagreement with the choice the individual has made). Defendants fail to appreciate the nature of
the liberty at stake here when they try to re-frame the fundamental right asserted as a new right
solely to marry someone of the same sex. When a person who has been excluded from exercising a
fundamental right steps forward seeking to exercise that right, courts properly frame the right based
on the attributes of the right itself, without reference to the identity of the person who seeks to
exercise it. See Kitchen, 2014 WL 2868044, at *12 (In numerous cases, the Court has discussed the
right to marry at a broader level of generality than would be consistent with appellants argument);
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).
Fundamental rights are defined by the nature of the autonomy sought, and not based on who
is trying to exercise it. Here, the right at issue is the right to marry the person of ones choice, which
is among the most deeply rooted and cherished liberties identified by our courts. See Kitchen, 961 F.
Supp. 2d at 1202-03; see also Windsor, 133 S. Ct. at 2689 (marriage permits same-sex couples to live
with pride in themselves and their union and in a status of equality with all other married persons,
and in seeking to marry, same-sex couples seek to occupy the same status and dignity as that of a
man and woman in lawful marriage); Bostic, 970 F. Supp. 2d at 472. Defendants attempts to
characterize this as a right to same-sex marriage should accordingly be rejected.
B. Defendants Misapprehend the Role of History when Considering the
Scope of Fundamental Rights.
Defendants argue that North Dakotas history of exclusion forecloses Plaintiffs claims that
the marriage ban violates the fundamental right to remain married. (DE 27, at 29.)
8
Contrary to

8
Defendants reliance on Washington v. Glucksberg, 521 U.S. 702 (1997), in their argument regarding
the role of history is misplaced, because, as Defendants acknowledge, marriage is already

12

Defendants assertions, the fact that same-sex couples have not historically been allowed to marry is
not the end of the analysis. See Lawrence, 539 U.S. at 572 ([H]istory and tradition are the starting
point but not in all cases the ending point of the substantive due process inquiry) (citation omitted);
id. at 577-78 ([N]either history nor tradition could save a law prohibiting miscegenation from
constitutional attack.) (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
While courts use history and tradition to identify the interests that due process protects, they do not
carry forward historical limitations on which Americans may exercise a right once that right is
recognized as protected by due process.
Thus, in numerous cases, the Supreme Court struck down infringements of fundamental
rights or liberty interests, even though the plaintiffs could not assert a historical claim to those rights.
When analyzing fundamental rights, the Supreme Court has consistently focused on the right being
asserted, rather than the person asserting it. See, e.g., Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833, 847-48 (1992) ([I]nterracial marriage was illegal in most States in the 19
th

century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against
state interference by the substantive component of the Due Process Clause in Loving. . . .); Turner,
482 U.S. at 78 (striking down restriction on inmates ability to marry); Virginia L. Hardwick, Punishing
the Innocent: Unconstitutional Restrictions on Prison Marriage and Visitation, 60 N.Y.U. L. REV. 275, 277-79
(1985) (right to marry traditionally did not extend to prisoners); Boddie, 401 U.S. at 376 (states may
not burden fundamental right to marry a second time, even though traditional right to marry did not
include a right to divorce and remarry). This critical distinctionthat history guides the what of
due process rights, but not the who of which individuals may have themis central to due
process jurisprudence.

considered a fundamental right, and therefore, the Glucksberg analysis is inapplicable here.
Kitchen v. Herbert, 961 F. Supp. 2d 1181, at *16 (D. Utah 2013).

13

Moreover, the history of marriage in North Dakota and elsewhere around the country belies
Defendants argument that marriage is static, defined by its historic limitation to different-sex
couples, and incapable of becoming more inclusive without damage to the institution. Marriage law
has undergone radical changes in past generations to eliminate the subordination of married women
and race-based entry requirements, among other things, and today, nineteen states and the District
of Columbia permit same-sex couples to marry. (DE 14, at 24-25.)
It is ironic that Defendants cite Loving in the very section where they argue that a historically
grounded restriction on marriage is constitutional simply by virtue of its historical entrenchment.
(DE 27, at 27-28.)
9
Most states banned marriage between persons of different races for much of this
nations history, and courts repeatedly upheld such laws against constitutional challenge. Long into
the twentieth century, the sheer weight of cases accepting the constitutionality of bans on interracial
marriage was deemed justification in and of itself to perpetuate these discriminatory laws.
10
Not until

9
Just as the right to marry a spouse of ones own choosing has a deeply-rooted constitutional
foundation, there is nothing novel about the principle that a couple has a fundamental right to
have their marriage accorded legal recognition by the state in which the couple lives. That is
precisely what Loving was all about. In Loving, Mildred and Richard Loving, an interracial couple,
left their home state of Virginia to marry in Washington, D.C., a jurisdiction that permitted
persons of different races to marry, before returning home. 388 U.S. at 2. The Supreme Court
struck down not only Virginias law prohibiting interracial marriages within the state, but also its
statutes that denied recognition to and criminally punished such marriages entered into outside
the state. Id. at 4. Significantly, the Court held that Virginias statutory schemeincluding the
penalties on out-of-state marriages and its voiding of marriages obtained elsewheredeprive[d]
the Lovings of liberty without due process of law in violation of the Due Process Clause of the
Fourteenth Amendment. Id. at 12; see also Zablocki, 434 U.S. at 397 n.1 ([T]here is a sphere of
privacy or autonomy surrounding an existing marital relationship into which the State may not
lightly intrude. . . . ) (emphasis added) (Powell, J., concurring).
10
See, e.g., Jones v. Lorenzen, 441 P.2d 986, 989 (Okla. 1965) (upholding Oklahoma anti-
miscegenation law since the great weight of authority holds such statutes constitutional); Scott
v. State, 39 Ga. 321, 326 (Ga. 1869) ([M]oral or social equality between the different races . . .
does not in fact exist, and never can.); Jackson v. City & Cnty. of Denver, 124 P.2d 240, 241 (Colo.
1942) (It has generally been held that such acts are impregnable to the [constitutional] attack
here made.); Naim v. Naim, 87 S.E.2d 749, 753 (Va. 1955) (finding that anti-miscegenation
statutes have been upheld in an unbroken line of decisions in every State [except one] in which

14

1948 did a state high court critically examine these traditions, and strike down an anti-miscegenation
law as violating rights of due process and equal protection. See Perez v. Sharp, 198 P.2d 17 (Cal. 1948).
In Perez, the California Supreme Court acknowledged the traditional assumption that interracial
marriages were unnatural, id. at 22, but held that the long duration of a wrong cannot justify its
perpetuation, id. at 26. It was not that the Constitution had changed; rather, its mandates had
become more clearly recognized. Id. at 19-21, 32 (Carter, J., concurring) ([T]he statutes now before
us never were constitutional.); see also Lawrence, 539 U.S. at 579 ([T]imes 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.); Windsor, 133 S. Ct. at 2689 (explaining that when permitting
same-sex couples to marry, New York corrected what its citizens and elected representatives
perceived to be an injustice that they had not earlier known or understood).
At one time, differential treatment based on gender was a signal element of marriage under
the common law. Under the doctrine of coverture, a married woman lost her separate legal existence
as a person by operation of law, and the wifes legal being was subsumed by her husband. See, e.g.,
Thompson v. Thompson, 218 U.S. 611, 614-15 (1910) ([G]enerally speaking, the wife was incapable of
making contracts, of acquiring property or disposing of the same without her husbands consent.).
For centuries, through marriage laws, states and the federal government reinforced the view that a
man should be the legal head of the household, responsible for its support and links to external
society, and having physical, sexual, economic and legal dominion over his wife. See, e.g., Bradwell v.
Illinois, 83 U.S. 130, 141 (1873);

see also Califano v. Westcott, 443 U.S. 76 (1979); Brandt v. Keller, 109
N.E.2d 729, 730 (Ill. 1952) (a married woman was regarded as a chattel with neither property nor

it has been charged that they violate constitutional guarantees), judgment vacated, 350 U.S. 891
(1955), adhered to on remand, 90 S.E.2d 849 (1956).

15

other rights against anyone, for her husband owned all her property and asserted all her legal and
equitable rights); People v. Liberta, 474 N.E.2d 567 (N.Y. 1984) (striking down marital rape
exemption, which gave possession of a wifes body to her husband). Today, the states and federal
law treat both spouses equally and in gender-neutral fashion with respect to marriage, and the
Supreme Court has confirmed that such gender-neutral treatment for marital partners is
constitutionally required. See Califano v. Goldfarb, 430 U.S. 199 (1977); Weinberger v. Wiesenfeld, 420 U.S.
636 (1975).
Thus, marriage today is a different institution from marriage decades ago, but the profound
liberty interests at stake have not changed. These interests apply equally to Jan and Cindyas well as
to every other North Dakotan.
III. North Dakotas Marriage Ban Cannot Survive Any Level of Judicial Scrutiny.
As set forth above, because this case involves the fundamental right to marry, it should be
reviewed under strict scrutiny. Moreover, and as set forth in more detail in Plaintiffs Motion for
Summary Judgment, heightened scrutiny should also apply because the marriage ban discriminates
on the basis of sexual orientation, (DE 14, at 16),
11
and as discussed in Section IV below,
discriminates based on sex.
Defendants incorrectly assert that Citizens and Baker require this Court to apply rational basis
review. (DE 27, at 15.) As discussed above, the decisions in Citizens and Baker do not control this
case, and those arguments similarly apply to the level of scrutiny required. As a summary dismissal,

11
There is simply no question that the marriage ban discriminates on the basis of sexual
orientation. See Christian Legal Socy Ch. of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 130 S.
Ct. 2971, 2990 (2010) (prohibition on same-sex intimate conduct no different from
discrimination against the status of being gay or lesbian); Lawrence, 539 U.S. at 575 (When
homosexual conduct is criminalized, that in and of itself is an invitation to subject homosexual
persons to discrimination.); cf. Bray v. Alexandria Womens Health Clinic, 506 U.S. 263, 270 (1993)
(A tax on wearing yarmulkes is a tax on Jews.). Where, as here, the marriage bans
discriminatory effect is more than merely disproportionate in impact, but rather affects everyone
in a class and do[es] not reach anyone outside that class, a showing of discriminatory intent is
not required. See M.L.B. v. S.L.J., 519 U.S. 102, 126-28 (1996) (emphasis in original).

16

Baker provided no explicit instruction on levels of scrutiny. Any inferences which could be drawn
from the Courts summary dismissal with regard to levels of scrutiny have since been undermined to
the point of irrelevance by the Courts subsequent application of heightened scrutiny to sex
discrimination claims and the Courts evolving jurisprudence on sexual orientation discrimination
and liberty. As to Citizens, other federal courts have recently recognized that Windsor implicitly
required heightened scrutiny for sexual orientation discrimination, thus implicitly undermining
Citizens for this reason as well. (See DE 14, at 17.)
Even if this Court does not apply heightened scrutiny, however, it must strike down the
marriage ban under rational basis review.
A. Defendants Urge an Erroneous Application of Rational Basis Review.
Defendants mischaracterize what the rational basis standard means. The vision of rational
basis review advanced by Defendants contravenes Supreme Court precedent regarding both the
permissible motives and the permissible means for disadvantaging a group of citizens. (See DE 14, at
22-24.) The Supreme Court has made clear that where a state singles out a group of its citizens for
disadvantage, a court may not turn a blind eye. See, e.g., Romer, 517 U.S. at 633; City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 450 (1985); U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
Defendants fail to acknowledge that even rational basis review places two substantive
limitations on legislative action: (1) the legislative enactments must further legitimate goals and (2)
the means chosen by the legislature must bear a rational relationship to those goals. See, e.g., Kitchen,
961 F. Supp. 2d at 1210 (citing Romer, 517 U.S. at 632). Accordingly, a court is obligated to strike
down a statute as unconstitutional either where it finds that the legislatures goal in passing it was
not legitimate, see, e.g., Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612 (1985); Zobel v. Williams, 457 U.S.
55 (1982), or that the classification employed by the legislature did not rationally further the
legislatures goal, see, e.g., Lindsey v. Normet, 405 U.S. 56 (1972); Reed v. Reed, 404 U.S. 71, 76-77 (1971).

17

In particular, when applying rational basis review, courts must strike down legislation where the lack
of a rational relationship between the legislative classification and the purported legislative goal
suggests that the true goal is illegitimate. See Cleburne, 473 U.S. at 450; Moreno, 413 U.S. at 534. As set
out below, that is precisely the circumstance presented here.
Defendants wrongly assert that the legislatures motivation for passing the marriage ban is
irrelevant as long as any rational basis can support it. (DE 27, at 15.) To the contrary, when a states
differential treatment of a class of people rest[s] on an irrational prejudice, the legislation is
unconstitutional under any level of review. Cleburne, 473 U.S. at 450. Indeed, if the principal purpose
or effect of a law is found to impose inequality, such a law is not within our constitutional
tradition, and violates the Equal Protection Clause for this reason alone. Romer, 517 U.S. at 633; see
also Kelo v. City of New London, 545 U.S. 469, 491 (2005) (Kennedy, J., concurring) (A court applying
rational-basis review under the Equal Protection Clause must strike down a government
classification that is clearly intended to injure a particular class of private parties, with only incidental
or pretextual public justifications.). As Windsor illustrates, a court may find a statute
unconstitutional as impermissibly motivated even though 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 a woman in lawful marriage. Windsor, 133 S. Ct. at 2689; see
also id. at 2689, 2693 (explaining that although permitting same-sex couples the freedom to marry
was the result of a new perspective and new insight, and no state permitted same-sex couples to
marry at the time of DOMAs enactment, [t]he history of DOMAs enactment and its own text
demonstrate that interference with equal dignity of same-sex marriages . . . was more than an
incidental effect of the federal statute. It was its essence.).
There is no requirement that there be debate or even legislative history demonstrating overt
bigotry and hostility before concluding that a law reveals an improper purpose. It is enough to show

18

the absence of any logical connection to a legitimate purpose, which can raise the inevitable
inference that the disadvantage imposed is born of animosity toward the class of persons affected.
Romer, 517 U.S. at 635. The purpose and effect of North Dakotas marriage ban are evident on the
face of the statutes: to impose inequality on lesbian and gay couples.
B. There Is No Rational Relationship Between North Dakotas Marriage
Ban and Encouraging Unintended Children to be Raised by Married
Couples.
Defendants primary justification for the marriage banto ensure that children conceived
unintentionally will be raised in stable families (DE 27, at 20)defies logic. North Dakota law does
not condition marriage on either of the parties procreative capacity, nor does it prohibit or even
disincentivize procreative sex outside of marriage. There does not appear to be any public policy in
North Dakota tying procreative sex to marriage. More importantly, even if there were, children
being raised by different-sex parents (whether conceived intentionally or not) are unaffected by
whether same-sex couples may marry. (See DE 14, at 25-27.)
As the Bostic court noted, [t]here is absolutely no reason to suspect that prohibiting same-
sex couples from marrying and refusing to recognize their out-of-state marriages will cause same-sex
couples to raise fewer children or impel married opposite-sex couples to raise more children. 2014
WL 3702493 at *15; see also Geiger, 2014 WL 2054264, *13 (Opposite-gender couples will continue
to choose to have children responsibly or not, and those considerations are not impacted in any way
by whether same-gender couples are allowed to marry.); Golinski v. U.S. Office of Pers. Mgmt., 824 F.
Supp. 2d 968, 992 (N.D. Cal. 2012)(finding that a desire to encourage opposite-sex couples to
procreate and raise their own children well would not provide a legitimate reason for denying federal
recognition of same-sex marriages); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 972 (N.D. Cal 2010)
(Permitting same-sex couples to marry will not affect the number of opposite-sex couples who

19

marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of
opposite-sex marriage.).
Excluding same-sex couples from marriage has no bearing on how different-sex couples rear
the children they may unintentionally produce. To paraphrase the Court of Appeals in Windsor,
incentives for different-sex couples to marry and procreate (or not) were the same after the marriage
ban was enacted as they were before. 699 F.3d 169, 188 (2d Cir. 2012). That these incentives did not
change with the passage of the marriage ban highlights the fallacy of Defendants attempt to recast it
in terms of inclusion of different-sex couples rather than exclusion of same-sex couples. See Windsor,
133 S. Ct. at 2695 (finding that DOMA directs its restrictions and restraints to same-sex couples).
Second, and most critically, the marriage ban actually harms children rather than helps them.
See Windsor, 133 S. Ct at 2694-95 (such differential treatment demeans the couple, whose moral and
sexual choices the Constitution protects, and humiliates tens of thousands of children now being
raised by same-sex couples). As the Bostic court noted, [o]f course the welfare of our children is a
legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this
interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving
couples targeted by Virginias Marriage Laws betrays that interest. 970 F. Supp. 2d at 478; see also
Golinski, 824 F. Supp. 2d at 992-93 (The denial of recognition and withholding of marital benefits
to same-sex couples does nothing to support opposite-sex parenting, but rather merely serves to
endanger children of same-sex parents by denying them the immeasurable advantages that flow
from the assurance of a stable family structure, when afforded equal recognition.) (internal
quotation marks omitted); Varnum v. Brien, 763 N.W.2d 862, 901 (Iowa 2009) (holding that marriage
ban does not serve best interests of children of lesbian and gay parents who are denied an
environment supported by the benefits of marriage or children of heterosexual parents who are

20

able to enjoy the environment supported by marriage with or without the inclusion of same-sex
couples).
In sum, Defendants asserted interest in encouraging responsible procreation cannot sustain
the marriage bans constitutionality, particularly in light of its true purpose and effect: to enshrine
moral disapproval of the loving relationships of same-sex couples in law. This illegitimate purpose
cannot justify the marriage ban and it must therefore be held unconstitutional.
C. The North Dakota Legislature Cannot Rationally Believe It Is
Preferable for Children to be Raised by a Different-sex Couple.
Defendants assert that the supposed benefits of a child being raised by different-sex parents
could also rationally justify the marriage ban. (DE 27, at 20.) Defendants claim that the existence of
such benefits is a matter of reasonable debate, and thus that the legislature is at liberty to accept the
side of the debate that says children do best when raised by different-sex parents. (Id. at 22.) First,
such arguments cannot justify the ban for the same reason that Defendants unintentional
procreation argument failsbecause there is no logical connection whatsoever between procreation
or child-rearing and North Dakotas exclusion of same-sex couples from marriage. See Section
III(B), supra. Accordingly, Defendants theories about optimal child-rearing are irrelevant and there
is no need for the Court to reach them. However, should the Court do so, Defendants seriously
misrepresent the current social science consensus that parenting by a same-sex couple is in no way
detrimental to child welfare vis--vis parenting by a different-sex couple. Other courts have surveyed
the evidence on this issue and concluded that it is not a matter on which a legislature could rationally
reach multiple conclusions, but rather a clearly settled fact. (See DE 14, at 27-28.)
Defendants further assert that notwithstanding a clear scientific consensus, North Dakotas
legislative choice is not subject to courtroom fact-finding and may be based on rational speculation
unsupported by evidence or empirical data. (DE 27, at 22-23.) However, the supposed benefits of
different-sex parenting cannot even be described as rational speculation. Any speculation that such

21

benefits exist rests on stereotypes about [men and womens] competence or predispositions,
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 142 n.14 (1994), and invidious, archaic, and overbroad
stereotypes about the relative abilities of men and women, id. at 131, which themselves constitute
impermissible sex-based discrimination and thus cannot be described as forming a rational basis for
a policy decision. (See DE 14, at 26-27.)
Further, as a matter of public policy, North Dakota courts have rejected the notion that
lesbian or gay parents are inferior to non-gay parents. North Dakotas Supreme Court ruled in 2003
that for custody purposes, a parents same-sex relationship was irrelevant to child welfare
considerations. Damron v. Damron, 670 N.W.2d 871, 876 (N.D. 2003).
Finally, even if Defendants were correct that the legislature could rationally believe that
same-sex parenting is inferiorand they are notthere is still no relationship between this
supposed belief and the marriage ban. Some same-sex couples have children and some do not,
regardless of whether or not they are married; just as some different-sex couples have children and
some do not, regardless of whether or not they are married (or whether or not their lesbian or gay
neighbors are married). See Kitchen, 961 F. Supp. 2d at 1210-11 (excluding same-sex couples from
marriage did nothing to enhance the environment in which the children of different-sex couples
were raised, even assuming that it is optimal to be raised by different-sex parents). There is simply
no rational relationship between the two that would justify upholding North Dakotas marriage ban.
D. Any Hypothetical Interest In Proceeding With Caution Before
Altering The Traditional Definition of Marriage Cannot Sustain the
Marriage Ban.
Defendants argument that the marriage ban serves an interest in proceeding with caution
before allowing same-sex couples to marry similarly cannot render the ban constitutional. There is
nothing cautious about a law that altogether forecloses access to marriage for same-sex couples
and deprives their children from ever having married parents. Like DOMA, North Dakotas

22

marriage ban was not framed as a temporary time-out; and it has no expiration date[.]
Massachusetts v. U.S. Dept of Health & Hum. Servs., 682 F.3d 1, 15 (1st Cir. 2012). The marriage ban is
a blanket denial of protection, permanently freezing the exclusion of same-sex couples from
marriage in North Dakota law.
Furthermore, a desire by the State to preserve the status quoto protect the traditional
definition of marriage by codification and constitutional amendment, (DE 27, at 23)does
nothing more than describe what [the marriage ban] does. It does not provide a justification for
doing so. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 393 (D. Mass. 2010), affd, Massachusetts v.
U.S. Dept of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012). Like Congress before it, the State of
North Dakota cannot, like an ostrich, merely bury its head in the sand and wait for danger to pass,
especially at the risk of permitting continued constitutional injury upon [same-sex] couples. That the
issue is socially divisive does nothing to relieve the judiciary of its obligation to examine the
constitutionality of discriminating classifications in the law. Golinski v. U.S. Office of Pers. Mgmt., 824
F. Supp. 2d 968, 1001 (N.D. Cal. 2012).
Proceeding with caution cannot be a justification for a law in and of itself. It is a means,
not an end, and such means are permissible only if they are in pursuit of legitimate goals.
12
The
States desire to proceed with caution must be considered in light of both the purpose of its line
drawing and the impact on those affected. See Califano v. Westcott, 443 U.S. 76, 89 (1979) (Congress
may not legislate one step at a time when that line is drawn along the line of gender, and the
consequence is to exclude one group of families altogether from badly needed subsistence

12
See, e.g., Massachusetts v. EPA, 549 U.S. 497, 524 (2007) (incremental pursuit of proper end of
reducing emissions of greenhouse gases permissible); Califano v. Jobst, 434 U.S. 47, 57-58 (1977)
(Congress may work incrementally toward the goal of eliminating the hardship caused by the
general marriage rule); McDonald v. Bd. of Election Commrs, 394 U.S. 802, 807 (1969) (permissible
to pass incremental legislation to make voting more available to some groups who cannot easily
get to the polls).

23

benefits); Califano, 434 U.S. at 58 (suggesting that analysis of incremental legislation would differ if
Congress was motivated by antagonism toward any class of marriages or marriage partners
excluded from the legislations protections).
Here, the end being served by North Dakotas alleged cautious approach is avoid[ing] the
unforeseen consequences of a sudden and dramatic change to the definition of marriage. (DE 27,
at 24-25.) This purpose cannot justify the marriage ban. First, as discussed in Plaintiffs Motion for
Summary Judgment (DE 14, at 24-25), Defendants reliance on tradition cannot insulate them from
a finding that the motivation for the marriage ban is improper and the legislation unconstitutional.
Courts must be extremely sensitive when it comes to basic civil rights and [should] not hesitate[] to
strike down an invidious classification even though it had history and tradition on its side. Levy v.
Louisiana, 391 U.S. 68, 71 (1968). Indeed, similar appeals to tradition were made and rejected in
Lawrence, 539 U.S. at 577-78 ([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.) (quoting Bowers v. Hardwick, 478 U.S. at 216 (Stevens, J., dissenting)).
Second, Defendants speculation about the consequences of allowing same-sex couples to
marry cannot justify the marriage ban. The Supreme Court has consistently held that an interest in
avoiding speculative and unidentified consequences of ending discrimination does not suffice. See
City of Cleburne, 473 U.S. at 448 ([T]he City may not avoid the strictures of [the Equal Protection]
Clause by deferring to the wishes or objections of some fraction of the body politic. (citing Palmore
v. Sidoti, 466 U.S. 429, 433 (1984)); see also Watson v. City of Memphis, 373 U.S. 526, 535-36 (1963)
(rejecting purported interest in proceeding with caution to prevent community confusion and
turmoil as defense to discrimination).

24

Furthermore, the States reliance on Justice Alitos dissent in Windsor completely ignores that
the Windsor Court rejected precisely these same justifications for DOMA. Specifically, the Court
highlighted Congressional emphasis on defend[ing] the institution of traditional heterosexual
marriage and protecting against the truly radical proposal to include same-sex couples in marriage
that would fundamentally alter the institution of marriage, in order to underscore DOMAs
impermissible discrimination. Windsor, 133 S. Ct. at 2693. The Court concluded that these stated
purposes demonstrate that interference with the equal dignity of same-sex marriages was
DOMAs essence. Id. at 2681.
In this vein, every court since Windsor that has considered whether proceeding with
caution was a rational basis for a marriage ban has rejected it. See, e.g., Kitchen, 961 F. Supp. 2d at
1194-95; Bourke, 2014 WL 556729 at *1; DeBoer, 973 F. Supp. 2d at 770-71; Wolf, 986 F. Supp. 2d at
1025 (A desire to make a class of people wait to exercise constitutional rights is not a legitimate
interest.). A marriage ban cannot be justified by sustained by a wait-and-see approach where it is
motivated by mere negative attitudes, or fear. See Kitchen, 961 F. Supp. 2d at 1213, affd, 2014 WL
2868044 (10th Cir. June 25, 2014) (quoting Cleburne, 473 U.S. at 448). Speculation about the societal
impact of ending the exclusion of same-sex couples from marriage are wholly inappropriate to
sustain a marriage ban. As the U.S. District Court for the Eastern District of Michigan concluded:
[T]he calculus is fundamentally altered when constitutional rights are
implicated because any deprivation of constitutional rights calls for
prompt rectification. The 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. The state may
not shield itself with the wait-and-see approach and sit idly while
social science research takes its plodding and deliberative course.
Were the Court to accept this position, it would turn the rational
basis analysis into a toothless and perfunctory review because the
state can plead an interest in proceeding with caution in almost any
setting. Rather, the state must have some rationale beyond merely
asserting that there is no conclusive evidence to decide an issue one
way or another. Since the wait-and-see approach fails to meet this
most basic threshold it cannot pass the rational basis test.

25

DeBoer, 973 F. Supp. 2d at 771 (internal citations omitted).
Defendants cite Justice Brandeiss dissent in New State Ice Co. v. Liebmann, 285 U.S. 262, 311
(1932), noting that states can experiment with social and economic policies. (DE 27, at 24.) Yet
Defendants neglect to include what immediately follows from Justice Brandeis: [t]his Court has the
power to prevent an experiment. We may strike down the statute which embodies it on the ground
that, in our opinion, the measure is arbitrary, capricious or unreasonable . . . We must be ever on our
guard, lest we erect our prejudices into legal principles. New State Ice Co., 285 U.S. at 311. As the
Supreme Court recently reaffirmed, [t]he States are laboratories for experimentation, but those
experiments may not deny the basic dignity the Constitution protects. Hall v. Florida, 134 S. Ct.
1986, 2001 (2014). North Dakotas marriage ban is precisely the arbitrary deprivation of dignity that
Justice Brandeis feared and thus must be held unconstitutional.
IV. The North Dakota Marriage Ban Discriminates on the Basis of Sex.
Finally, Defendants claim that the marriage ban does not discriminate on the basis of sex
because it is equally applicable to men and women. (DE 27, at 32.) This is erroneous for two
reasons. First, the marriage ban does discriminate facially by gender, explicitly stating that
[m]arriage consists only of the legal union between a man and a woman, N.D. Const. art. XI, 28,
and that [a] spouse refers only to a person of the opposite sex who is a husband or a wife, N.D.
Cent. Code 14-03-01. Under the plain language of the ban, only a man can marry a woman. This
plainly discriminates against Jan and Cindy, who are each prohibited from marrying the other,
because they are women. Second, the ban draws upon the same stereotypes that resulted in
discriminatory jury selection being struck down in J.E.B. See 511 U.S. at 127. By requiring one man
and one woman, the ban enforces conformity with the stereotype that men and women perform
distinct roles and tasks within a marital relationship. But cases like J.E.B. reject stereotypes about
[men and womens] competence or predispositions, id. at 142 n.14, especially where a sex-based

26

distinction serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the
relative abilities of men and women, id. at 131. Defendants do not put forth any evidence
suggesting that two men or two women cannot form the expressions of emotional support and
public commitment that are required for marriage. Turner, 482 U.S. at 95.
Defendants argument that the marriage ban is constitutional because it burdens men and
women equally was considered and rejected by the district court in Kitchen, which held that the fact
of equal application to both men and women does not immunize Utahs [marriage ban] from the
heightened burden of justification that the Fourteenth Amendment requires of state laws drawn
according to sex. Kitchen, 961 F. Supp. 2d at 1206; see also Goodridge v. Dept of Pub. Health, 798
N.E.2d 941, 971 (Mass. 2003) (Greaney, J. concurring) (A classification may be gender based
whether or not the challenged government action apportions benefits or burdens uniformly along
gender lines. This is so because constitutional protections extend to individuals and not to categories
of people. Thus, when an individual desires to marry, but cannot marry his or her chosen partner
because of the traditional opposite-sex restriction, a violation of [equal protection] has occurred.)
This holding follows from Lovings rejection of the notion that the mere equal application of a
statute containing racial classifications is enough to remove the classifications from the Fourteenth
Amendments proscriptions of all invidious racial discriminations. Loving, 388 U.S. at 8; McLaughlin
v. Florida, 379 U.S. 184, 191 (1964) (explaining that equal protection analysis does not end with a
showing of equal application among the members of the class defined by the legislation). North
Dakotas marriage ban impermissibly discriminates on the basis of sex and cannot stand.
CONCLUSION
For the foregoing reasons, this Court should deny Defendants Motion to Dismiss, grant
Plaintiffs previously filed Motion for Summary Judgment, and declare that denying same-sex

27

spouses recognition of valid out-of-state marriages violates the United States Constitutions
guarantees of due process and equal protection.
* * *


28

DATED: August 22, 2014 Respectfully submitted,
/s/ Kyle A. Palazzolo_______________
Kyle A. Palazzolo*
Camilla B. Taylor*
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
105 West Adams, Suite 2600
Chicago, IL 60603-6208
T: (312) 663-4413 | F: (312) 663-4307
ctaylor@lambdalegal.org
kpalazzolo@lambdalegal.org
Kenneth D. Upton, Jr.*
3500 Oak Lawn Avenue, Suite 500
Dallas, TX 75219-6722
T: (214) 219-8585 | F: (214) 219-4455
kupton@lambdalegal.org
Karen L. Loewy*
120 Wall Street, 19th Floor
New York, NY 10005-3919
T: (212) 809-8585 | F: (212) 809-0055
kloewy@lambdalegal.org

John P. Borger
Michael A. Ponto*
Christopher H. Dolan*
Emily E. Chow*
FAEGRE BAKER DANIELS
2200 Wells Fargo Center
90 S. Seventh Street
Minneapolis, Minnesota 55402-3901
T: (612) 766-8012 | F: (612) 766-1600
john.borger@faegrebd.com
michael.ponto@faegrebd.com
chris.dolan@faegrebd.com
emily.chow@faegrebd.com

ATTORNEYS FOR PLAINTIFFS
* Admitted pro hac vice


29

CERTIFICATE OF SERVICE

Case No. 3:14-cv-00058

I hereby certify that on August 22, 2014, the following document: PLAINTIFFS
MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS was
filed electronically with the Clerk of Court through ECF and that ECF will send a Notice of
Electronic Filing to all counsel of record.

/s/ Kyle Palazzolo
Kyle Palazzolo


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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

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