In The United States District Court For The District of Alaska

Allison Mendel AK Bar #8310136
Mendel & Associates, Inc.

1215 W. 8
th
Ave.
Anchorage, AK 99501
(907) 279-5001
(907) 279-5437
Amendel@mendelandassociates.com
Heather Gardner AK Bar #0111079
Caitlin Shortell AK Bar #0405027
Attorneys for Matthew Hamby, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

MATTHEW HAMBY and CHRISTOPHER
SHELDEN, a married couple, CHRISTINA
LABORDE and SUSAN TOW, a married
couple, SEAN EGAN and DAVID ROBINSON,
a married couple, TRACEY WIESE and
KATRINA CORTEZ, a married couple, and
COURTNEY LAMB and STEPHANIE
PEARSON, unmarried persons,

Plaintiffs,

vs.

SEAN C. PARNELL, in his official capacity as
Governor of Alaska, MICHAEL GERAGHTY,
in his official capacity as Attorney General of
the State of Alaska,
WILLIAM J. STREUR, in his official capacity
as Commissioner of the State of Alaska,
Department of Health and Social Services, and
PHILLIP MITCHELL, in his official capacity as
State Registrar and Licensing Officer, Alaska
Bureau of Vital Statistics,

Defendants.

)
)
)
Case No. 3:14-cv-00089-TMB

PLAINTIFFS RULE 56 MOTION
FOR SUMMARY JUDGMENT

Case 3:14-cv-00089-TMB Document 20 Filed 08/29/14 Page 1 of 55

Hamby, et al v. Parnell, et al
Case No. 3:14-cv-00089-TMB II
TABLE OF CONTENTS
Table of Cases and Authorities ...................................................................................... iv-ix
INTRODUCTION ..............................................................................................................1
ISSUES PRESENTED.........................................................................................................3
BACKGROUND .................................................................................................................4
A. Alaskas Statutory Marriage Bans and Constitutional Prohibition .........................4

B. The Plaintiffs in this Action .....................................................................................6
LEGAL STANDARD ........................................................................................................10
ARGUMENT .....................................................................................................................10
I. ALASKAS MARRIAGE BANS VIOLATE DUE PROCESS AND
EQUAL PROTECTION ........................................................................................11

A. Marriage is a Fundamental Right Under the Due Process Clause .........................11

B. The Fundamental Right to Marry is not Restricted to Heterosexuals ....................14

C. The Marriage Bans Violate Due Process Because the State Cannot Show
that they Further a Legitimate Interest ...................................................................16

II. ALASKAS MARRIAGE BANS DENY PLAINTIFFS EQUAL
PROTECTION OF THE LAWS ...........................................................................23

A. Alaskas Marriage Bans Violate Equal Protection Because They
Impermissibly Infringe on a Fundamental Right ...................................................23

B. Alaskas Bans on Marriage of Same-Sex Couples Violate Equal Protection
Because They Discriminate Based on Sexual Orientation and Gender without
Furthering a Compelling State Interest ..................................................................24

1. SmithKline Requires Application of Heightened Scrutiny Because Alaskas
Marriage Bans Discriminate on the Basis of Sexual Orientation .........................24


Case No. 3:14-cv-00089-TMB III
2. Alaskas Marriage Bans Violate Equal Protection under Heightened
Scrutiny Applicable to Discrimination Based on Sexual Orientation ...................28

3. The Marriage Bans also Violate Equal Protection Because They Cannot
Survive the Scrutiny Applicable to Laws That Discriminate on the Basis of
Gender....................................................................................................................31

III. ALASKAS ANTI-RECOGNITION LAWS VIOLATE THE MARRIED
PLAINTIFFS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND
EQUAL PROTECTION ........................................................................................34

A. Alaskas Anti-Recognition Laws Violate the Fundamental Right to
Remain
Married ...................................................................................................................34

1. Alaskas Anti-Recognition Laws Inflict Significant Harm on Married
Same-Sex Couples And Their Children..................................................................37

B. Alaskas Anti-Recognition Laws Violate Equal Protection ............................38

C. Section 2 of DOMA does not Bar Plaintiffs Claims ......................................40

IV. BAKER v. NELSON DOES NOT BAR PLAINTIFFS CLAIMS .........................40

V. DEFENDANTS OTHER AFFIRMATIVE DEFENSES LACK MERIT ............43
CONCLUSION ..................................................................................................................46


Case No. 3:14-cv-00089-TMB IV
TABLE OF CASES AND AUTHORITIES
Supreme Court Decisions
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) ..........................................44
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..............................10, 11, 43
Baker v. Carr, 369 U.S. 186 (1962) .......................................................................44
Baker v. Nelson, 409 U.S. 810 (1972) .............................................................41, 42
Califano v. Westcott, 443 U.S. 76 (1979) ..............................................................33
City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432 (1985) ...............18
Ex Parte Young, 209 U.S. 123 ...............................................................................45
Frontiero v. Richardson, 411 U.S. 677 (1973) ......................................................42
Graham v. Richardson, 403 U.S. 365 (1991) ........................................................41
Griswold v. Connecticut, 381 U.S. 479 (1965) ................................................11, 35
Hicks v. Miranda, 422 U.S. 332 (1975) .................................................................41
Hodgson v. Minnesota, 497 U.S. 417 (1990) .........................................................12
J.E.B. v Alabama ex rel. T.B., 511 U.S. 127 (1994) ........................................26, 32
Lawrence v. Texas, 539 U.S. 558 (2003) .......................................15, 17, 30, 37, 42
Loving v. Virginia, 388 U.S. 1 (1967)..............................3, 10, 11, 13, 1, 17, 32, 35
Lucas v. Forty-Fourth General Assembly of State of Colo., 377 U.S. 713
(1964) .....................................................................................................................18
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................43
Mandel v. Bradley, 432 U.S. 173 (1977) ...............................................................42
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ....................................................................35
New York City Transit Authority v. Beazer, 440 U.S. 568 (1979) .........................18

Case No. 3:14-cv-00089-TMB V
Orr v Orr, 440 U.S. 268 (1979) .............................................................................33
Plyler v. Doe, 457 U.S. 202 (1982) ...................................................................19
Powers v. Ohio, 499 U.S. 400 (1991) ..................................................................32
Reed v Reed, 404 U.S. 71 (1971) .........................................................................33
Reno v. Flores, 507 U.S. 292 (1993) ....................................................................11
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ..........................................12, 13, 35
Romer v. Evans, 517 U.S. 620 (1996) ......................................................17, 42, 43
Stanton v. Stanton, 421 U.S. 7 (1975) ..................................................................33
Turner v. Safley, 482 U.S. 78 (1987) .........................................................10, 11, 14
U.S. v. Salerno, 481 U.S. 729 (1987) .....................................................................11
U.S. v. Virginia, 518 U.S. 515 (1996) ..............................................................23, 34
United States v. Windsor, __ U.S. __133 S. Ct. 2675 (2013) ....................................
............................................1, 2, 3, 15, 16, 17, 20, 23, 27, 28, 30, 35, 36, 38, 39, 42
Washington v. Glucksberg, 521 U.S. 702 (1997) ......................................11, 24, 35
Zablocki v. Redhail, 434 U.S. 374 (1978) ............................1, 10, 13, 14, 15, 24, 36

Ninth Circuit Court Decisions
Hibbs v. Department of Human Resources, 273 F.3d 844 (9th Cir. 2001) ............26
SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir.
2014) ...................................................................................3, 23, 24, 25, 26, 27, 39,
U.S. v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012) ................................10, 12, 16


Case No. 3:14-cv-00089-TMB VI
Other Federal Cases
Baskin v. Bogan, __F.Supp.2d__, 2014 WL 2884868 (S.D. Ind. 2014) ..........1, 21
Bishop v. Smith, 962 F.Supp.2d 124 (N.D. Ill. 1997) ...............................17, 21, 39
Bishop v Smith, __F.3d__, 2014 WL 3537847 (10th Cir. Jul. 18, 2004) ...1, 19, 21
Bishop v. U.S. ex rel. Holder, 962 F.Supp.2d 1252 (N.D. Okla. 2014) ...............18
Bostic v. Rainey, 970 F.Supp.2d 456 (E.D. Va. 2014) ...................................15, 21
Bostic v. Schaefer, __F.3d__, 2014 WL 3702493 (4th Cir. 2014) .......1, 10, 14, 21
Bourke v. Beshear, __F.Supp.2d__, 2014 WL 556729 (W.D. Ky. Feb. 12,
2014) .................................................................................................................1, 21
Brenner v. Scott, __F.Supp.2d__, 2014 WL 4113100 (N.D. Fla. Aug. 21,
2014) .................................................................................................................1, 21
Ctr. For Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006) ........10
DeBoer v. Snyder, 973 F. Supp.2d 757 (E.D. Mich. 2014) ............................18, 21
DeLeon v. Perry, 975 F. Supp.2d 632 (W.D.Tex. 2014) ...................18, 29, 36, 40
Gable v. Patton, 142 F.3d 940, 944 (6th Cir. 1998) .............................................10
Geiger v. Kitzhaber, __F.Supp.2d__, 2014 WL 054264 (D.Or. 2014) ...1, 18, 21
Gray v. Orr, __F.Supp.2d__, 2013 WL 6355918 (N.D.Ill. 2013) .......................21
Henry v. Himes, __F.Supp.2d__, 2014 WL 1418395 (S.D. Ohio 2014).............21
Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013) ..............................15, 21
Kitchen v. Herbert, 755 F.3d 1193, 2014 (10th Cir. 2014) ..............................1, 15
Latta v. Otter, __F.Supp.2d__, 2014 WL 1909999
(D. Idaho 2014) ..........................................................................1, 3, 18, 21, 27, 36
Lisco v. Love, 219 F.Supp. 922 (D. Colo. 1963) ..................................................17
Love v. Beshear, 989 F.Supp.2d 536 (W.D. Ky. 2014) ....................................1, 21

Case No. 3:14-cv-00089-TMB VII
Massachusetts v. United States Dept. of Health & Human Services, 682
F.3d 1 (1st Cir. 2012) .......................................................................................5, 26
Obergefell v Wymyslo, 962 F.Supp.2d 968 (S.D. Ohio 2013) .............................36
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) .......................21
Whitewood v. Wolf, 992 F.Supp.2d 410, (M.D.Pa. 2014) ................................1, 21
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) ...........................26, 29, 41
Wolf v. Walker, 986 F.Supp.2d 982 (W.D. Wis. 2014) .........................................1

Other State Cases
Baker v Nelson, 191 N.W.2d 185 (Minn. 1971) ...................................................41
Baker v. State, 722 A.2d 864 (Vt. 1999) ................................................................5
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) .............................................................4
Brause v. Bureau of Vital Statistics, 1998 WL 88743, (Alaska Super.
1998) (3AN-95-06562 CI, 1998) ............................................................................5
Garden State Equality v. Dow, 434 N.J.Super. 163 (N.J.Super.L. 2013) .............1
Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) ....5, 21
Griego v. Oliver, 316 P.3d 865 (N.M. 2013) .........................................................1
In re Balas, 449 B.R. 567 (Bankr. CD. Cal. 2011) ..............................................26
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ...........................................21, 26
In re Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) ..........5
Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008) ..........26
Morrison v. Sunshine Mining Co., 127 P.2d 766 (Idaho 1942) ...........................37

Case No. 3:14-cv-00089-TMB VIII
Perez v. Lippold, 198 P.2d 17 (Cal. 1948) .....................................................13, 32
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ..................................................26
Wright v. Arkansas, No. 60CV-13-2662 (Ark. Cir. Ct. 2d Div. 2014) ..................1
Federal Statutes
28 U.S.C. 1738C ................................................................................................40
42 U.S.C. 1983 ............................................................................................43, 45

Federal Rules of Civil Procedure
Fed. R. Civ. P. 56 .....................................................................................10, 11, 46

United States Constitution
Art. III, 2 .............................................................................................................15

Alaska Constitution
Article 1, 25 ..........................................................................................................7

Alaska Statutes
AS 13.12.102 ..................................................................................................22, 37
AS 13.12.202 ..................................................................................................22, 37
AS 13.12.402-.405 ..........................................................................................22, 37
AS 13.26.145 ............................................................................................22, 30, 37
AS 13.26.210 ............................................................................................22, 30, 37

Case No. 3:14-cv-00089-TMB IX
AS 13.75.020 ..................................................................................................22, 37
AS 23.30.215 ..................................................................................................22, 37
AS 23.30.395 ..................................................................................................22, 37
AS 25.05.011 ......................................................................................4, 7, 9, 10, 11
AS 25.05.013 ..................................................................................4, 7, 8, 9, 10, 36
AS 25.05.361 ....................................................................................................9, 30
AS 25.20.020 ............................................................................................22, 30, 37
AS 25.20.030 ..................................................................................................22, 37
AS 25.20.045 ........................................................................................8, 22, 30, 37
AS 25.23.020 ..................................................................................................22, 37
AS 25.23.090 ..............................................................................................8, 22, 37
AS 25.23.100 ..............................................................................................8, 22, 37
AS 34.77.070 ..................................................................................................22, 37
7 AAC 40.240-.280 ..............................................................................................22


Case No. 3:14-cv-00089-TMB Page 1 of 46

INTRODUCTION
Since the Supreme Courts decision in United States v. Windsor,
1
the vast
majority of courts to consider the issue have ruled that state laws barring same-sex
couples from marriage or refusing to recognize their existing marriages are invalid,
including the Fourth and Tenth Circuit Courts of Appeals, fourteen federal district courts,
and three state courts.
2
In every corner of this country, judges have agreed Plaintiffs
claims are meritorious and that states cannot exclude same-sex couples from marriage.
Plaintiffs are five couples who live in Alaska. They have formed
families here, contributed to their communities, and established close ties with their
fellow Alaska citizens. Most of the couples have been together for years and all have
committed to spend their lives together. One of the Plaintiff couples seeks to marry in
Alaska. Four of the Plaintiff couples already have legally married in other statesas

1
__U.S.__, 133 S. Ct. 2675 (2013).
2
See Bostic v. Schaefer, __F.3d__, 2014 WL 3702493 (4th Cir. 2014); Kitchen v.
Herbert, 755 F.3d 1193 (10th Cir. 2014); Bishop v. Smith, 2014 WL 3537847 (10th Cir.
2014); Brenner v. Scott, 2014 WL 4113100 (N.D. Fla. 2014); Love v. Beshear, 989
F.Supp.2d 536, 539 (W.D. Ky. 2014) (state bans on same-sex marriage do not withstand
rational scrutiny under equal protection); Baskin v. Bogan, 2014 WL 2884868 (S.D.
Ind. 2014) (statute barring same-sex marriage violates equal protection); Latta v. Otter,
2014 WL 1909999, *28 (D. Idaho 2014) (citing cases and noting that 10 [other] federal
[district] courts across the country have in recent months reached similar conclusions);
see also Wolf v. Walker, 986 F.Supp.2d 982 (W.D. Wis. 2014) (same-sex marriage ban
does not further state interest in procreation); Whitewood v. Wolf, 992 F.Supp.2d 410
(M.D. Pa. 2014) (same-sex marriage prohibition does not survive intermediate scrutiny
under equal protection analysis); Geiger v. Kitzhaber, __F.Supp.2d__, 2014 WL
2054264 (D.Or. 2014), stay denied (9th Cir. 14-35427) (May 19, 2014) (cannot survive
rational basis); Wright v. Arkansas, No. 60CV-13-2662 (Ark. Cir. Ct. 2d Div. 2014);
Griego v. Oliver, 316 P.3d 865 (N.M. 2013); Garden State Equality v. Dow, 434
N.J.Super. 163, 82 A.3d 336 (N.J.Super.L. 2013) (declining to stay decision striking
down marriage ban).


many other Alaska residents have done. The federal government recognizes that the
married Plaintiffs existing marriages are valid and recognizes those marriages for
purposes of most federal benefits, but the State of Alaska does not. All of the couples
wish their relationships to be accorded the same dignity, respect, and security as the
relationships of other married couples they know in their state.
Because of Alaskas marriage bans and anti-recognition laws, Plaintiffs
are denied the legal stability and substantial protections that flow from civil marriage.
Alaska law excludes them from what, for many, is lifes most important relationship,
leaving them with no way to publicly express or formalize their commitment to one
another or assume the duties and responsibilities that are an essential part of married life
and that they would be honored to accept.
3
Alaskas treatment of them as legal
strangers to one another demeans their deepest relationships and stigmatizes their
children by communicating that their families are second class.
4

These harms violate the most basic principles of equal protection and due
process, which require that the law treat all persons equally and provide that every
person has a protected right to marry and establish a home and family.
5
While states
generally have power to regulate marriage, they must exercise that power [s]ubject to
constitutional guarantees.
6
Alaskas marriage bans infringe upon the fundamental
right to marry and discriminate on the basis of sexual orientation and gender. Alaskas

3
Windsor, 133 S. Ct. at 2695.
4
Id. at 2695-96.
5
See Zablocki v. Redhail, 434 U.S. 374, 384 (1978).
6
Windsor, 133 S. Ct. at 2680 (citing Loving v. Virginia, 388 U.S. 1 (1967)).


laws cannot survive the heightened scrutiny that the Supreme Court and the Ninth
Circuit have made plain that the courts must apply to such discriminatory laws.
7

Indeed, as further discussed below, Alaskas discriminatory marriage laws cannot
withstand any level of constitutional scrutiny because Alaskas exclusion of same-sex
couples from marriage has no rational justification and fails to further any legitimate
governmental interest. Alaskas exclusion of same-sex couples from marriage and
refusal to recognize the lawful marriages of those who married in other states violate the
Fourteenth Amendment and Plaintiffs are entitled to summary judgment on their
constitutional claims.
ISSUES PRESENTED
1. Do Alaskas bans on marriage between same-sex couples violate
the due process clause of the United States Constitution?
2. Do Alaskas bans on marriage between same-sex couples violate
the equal protection clause of the United States Constitution?
3. Do Alaskas bans of recognition of marriages between same-sex
couples violate the process clause of the United States Constitution?
4. Do Alaskas bans on recognition of marriages between same-sex
couples violate the equal protection clause of the United States Constitution?

7
Windsor, 133 S. Ct. at 2693; SmithKline Beecham Corp. v. Abbott Labs. 740 F.3d
471, 482 (9th Cir. 2014); see also Latta v. Otter, __ F.Supp.2d__, 2014 WL 1909999 (D.
Idaho 2014) (applying SmithKline to find Idahos same-sex marriage ban violates equal
protection).


5. Do any of Defendants affirmative defenses prevent the Court from
granting summary judgment to Plaintiffs?
BACKGROUND
A. Alaskas Statutory Marriage Bans and Constitutional Prohibition.
Alaska Statute 25.05.011 restricts the definition of marriage to opposite
sex couples: Marriage is a civil contract entered into by one man and one woman.
Alaska Statute 25.05.013 bars the recognition in Alaska of same-sex marriages valid in
other jurisdictions: A marriage entered into by persons of the same sex that is
recognized by another state or foreign jurisdiction is void in this state. A same-sex
relationship may not be recognized by the state as being entitled to the benefits of
marriage.
Prior to 1996, AS 25.05.013 did not exist and AS 25.05.011 contained
no language limiting marriage to one man and one woman. There was no statutory bar
to same-sex marriage in Alaska. Changes to the law were prompted by the prospect of
legal same-sex marriage in Hawaii following the Supreme Court of Hawaiis 1993
decision, Baehr v. Lewin,
8
holding that Hawaiis denial of marriage to same-sex couples
was subject to strict scrutiny under Hawaiis Equal Protection Clause and would be
struck down absent a showing that it was narrowly tailored to serve a compelling state
interest.
9

8
852 P.2d 44 (Haw. 1993).
9
See Attachment 1, at 2 n. 285, 3 n. 506, 4 n. 001, 5.


In 1995, two men filed suit against the Alaska Bureau of Vital Statistics
challenging its refusal to issue a marriage license to them as unconstitutional. The
Superior Court held that the denial of the marriage license was subject to strict scrutiny
and ordered the state to provide a compelling state interest for denying them the right to
marry.
10
In response to the 1998 decision, the Alaska legislature introduced a proposed
amendment to the Alaska Constitution. That measure became a 1998 statewide ballot
initiative to amend the state constitution to include Article I, 25, which provides: To
be valid or recognized in this State, a marriage may exist only between one man and one
woman. This amendment was adopted by popular vote.
The same year Alaska amended its constitution to deny the right to marry
to same-sex couples, other courts began to recognize that such laws were
unconstitutional. In 1998, the Vermont Supreme Court ruled that same-sex couples must
be treated equally to opposite-sex married couples as a matter of state constitutional
law.
11
And in 2003 and 2004, the Massachusetts appellate court issued decisions holding
that Massachusetts could not exclude same-sex couples from marriage under the
Commonwealths constitution.
12

Prior to 1996, Alaska recognized all legal marriages from other
jurisdictions, including interracial ones. Far from being a restrictive state, Alaska

10
Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. 1998) (3AN-95-
06562 CI).
11
Baker v. State, 722 A.2d 864, 886 (Vt. 1999).
12
See In re Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004);
Goodridge v. Department of Public Health, 798 N.E.2d 941, 961 (Mass. 2003).


extended a broader spectrum of civil rights and individual liberties to its citizens than the
U.S. Constitution provided. For the first 39 years of statehood, the Alaska Constitution
contained no provision limiting or restricting civil rights. The 1996 statutory
amendments and the constitutional amendment limiting marriage to one man and one
woman marked a stark departure from the states robust protection of civil rights. While
Alaska continues to apply its longstanding rule of recognizing valid out-of-state
marriages, it has carved out an exception to that rule applicable only to the marriages of
same-sex couples. The plain language and context in which these changes occurred make
clear that these unprecedented enactments were intended to single out and exclude gay
and lesbian couples from lawful marriage. These laws are facially unconstitutional.
B. The Plaintiffs in this Action.
Plaintiffs are five Alaska same-sex couples.
13
Four of these couples are
lawfully married but Alaska refuses to recognize them as married.
14
One couple wishes
to marry in Alaska, its home state.
15
All five couples seek legal recognition of their
commitment. These individuals are productive members of society, with diverse
backgrounds. They have formed families, contributed to their professions and
communities, and chosen Alaska as their home. Yet, because they are of the same sex,

13
Complaint for Declaratory and Injunctive Relief, III.A.
14
Id.
15
Id. at 5.


and for no other reason, Alaska law bars them from getting married or from having their
out-of-state marriages recognized.
16

Matthew Hamby and Christopher Shelden are residents of the State of
Alaska.
17
Christopher is a twenty-year employee of the State of Alaska.
18
Matthew has
worked as a pharmacist for Providence Health in Anchorage for fifteen years.
19
After
several years together, they married in Canada in 2008.
20
In December 2013, they
renewed their vows in Utah, with Matthews mother in attendance.
21
Despite the fact that
they have been legally married for six years, they remain legal strangers to one another in
the eyes of the State of Alaska, which does not recognize their marriage.
22
They have
experienced difficulties obtaining benefits, such as health insurance, extended to other
married couples as a routine matter.
23

Susan Tow and Christina Laborde are residents of the State of Alaska.
24

Susan is a retired veteran of the U.S. Air Force, having served her country with
distinction for twenty-two years before retiring in 2012.
25
She is also the biological

16
AS 25.05.011, AS 25.05.013; Alaska Const. Art. I 25.
17
Declaration of Matthew Hamby, 2.
18
Id. 2.
19
Id.
20
Id.
21
Id. 4-5.
22
AS 25.05.013.
23
See AS 25.05.013(b) (prohibiting same-sex couples from being entitled to the
benefits of marriage). See generally Complaint 36.
24
Declaration of Susan Tow, 2.
25
Id. 3.


mother of two sons, ages twenty and seventeen.
26
Christina is a former state and federal
employee who now works in the private sector in Anchorage.
27
Since 2005, Christina
and Susan have raised their sons to young adulthood as co-parents.
28
Christina cared for
their sons as a single parent while Susan was deployed in 2008-09.
29
They own a home
in Anchorage together.
30
They entered into a civil union in Hawaii in February 2012 and
were married in Maryland on July 27, 2013.
31
Despite raising a family, buying a house,
supporting each other and their family through Susans military deployment, and
reaching lifes milestones together as a family unit, they are legal strangers to each other
in their home state.
32
Alaska does not recognize their marriage and the marriage bans
complicate the process by which Christina could adopt the children.
33

Stephanie Pearson and Courtney Lamb are residents of Alaska.
34

Courtney grew up partly in Alaska as an Air Force dependent, and moved back to Alaska
in 2003 because she considers Alaska home.
35
Stephanie has lived in Alaska for seven
years.
36
The couple lives in Anchorage and wishes to marry in Alaska because both feel

26
Id. 4.
27
Id. 2.
28
Id. 6.
29
Id. 6-7.
30
Id. 12.
31
Id. 10.
32
Id. 6-10.
33
AS 25.05.013; AS 25.23.090(b); 25.23.100(g).
34
Declaration of Stephanie Pearson 2.
35
Id. 5.
36
Id. 2.


that they should be able to marry in their home state.
37
Because of the laws at issue in
this lawsuit, however, Alaska will not issue a marriage license to a same-sex couple,
criminalizes the act of solemnizing a marriage without a marriage license, and would not
recognize a marriage performed in another state.
38

Sean Egan and David Robinson are residents of Alaska.
39
David grew
up in Alaska and Sean moved to Alaska in 2005.
40
They were married in 2011 in New
York.
41
Sean works for the University of Alaska, while David is a member the U.S. Air
Force.
42
Despite their valid marriage from New York, which is recognized by the federal
government and other states, the State of Alaska refuses to recognize their marriage and
treats them as legal strangers under state law.
43

Tracey Wiese and Katrina Cortez are residents of Alaska.
44
Tracey
moved to Alaska eighteen years ago and Katrina is a life-long Alaskan.
45
Tracey works
for Providence Medical Center and is a business owner.
46
Tracey is the biological mother
of a three-year-old girl whom Katrina co-parents.
47
Although Tracey and Katrina were
legally married in Hawaii on March 10, 2014, the State of Alaska does not recognize

37
Id. 5.
38
AS 25.05.011; AS 25.05.361; AS 25.05.013.
39
Declaration of Sean Egan, 2, 7.
40
Id. 2.
41
Id. 3.
42
Id. 2, 3.
43
AS 25.05.013.
44
Declaration of Tracey Wiese, 2.
45
Id. 2.
46
Id. 3-4.
47
Id. 2.


their marriage, and in the eyes of the State of Alaska, they are legal strangers, their
marriage void under state law.
48

LEGAL STANDARD
Summary judgment is appropriate where there is no genuine issue as to
any material fact and the moving party is entitled to a judgment as a matter of law.
49
A
facial challenge to the constitutionality of a statute presents a question of pure law.
50

Here, there are no material facts in dispute, and Plaintiffs are entitled to summary
judgment as a matter of law on their constitutional claims.
Statement of Undisputed Material Facts
1. Plaintiffs are prevented from having their marriages recognized in Alaska by
Article I, Section 25 of the Alaska State Constitution, amended in 1998, which
provides that to be valid in the State of Alaska, a marriage must be only between
one man and one woman, and by Alaska Statutes Section 25.05.013.
2. Stephanie Pearson and Courtney Lamb, an unmarried same-sex couple, are
prevented from marrying one another in the State of Alaska by Article I, Section
25 of the Alaska State Constitution and by Alaska Statute 25.05.011.

48
Id. 6; AS 25.05.013.
49
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Fed. R. Civ. P.
56(a).
50
Ctr. For Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir. 2006); see
also Gable v. Patton, 142 F.3d 940, 944 (6th Cir. 1998) (Because the four provisions are
challenged with regard to facial constitutionality, thus implicating only issues of law,
neither Plaintiff nor Defendants contest the appropriateness of summary judgment.).


ARGUMENT
I. ALASKAS MARRIAGE BANS VIOLATE DUE PROCESS AND EQUAL
PROTECTION.
Alaska Statute 25.05.011 and the constitutional amendment enacted in
1998 prevent same-sex couples from marrying in Alaska by defining marriage as existing
only between one man and one woman. The right to marry ones person of choice is a
fundamental right due to all individuals, regardless of sexual orientation, race, or
gender.
51
The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution
forbids the government from infringing on fundamental rights unless the infringement is
narrowly tailored to serve a compelling state interest.
52
Here, the bans fail constitutional
muster because they deprive Plaintiffs and other same-sex couples of the fundamental
right to marry without serving any legitimate, much less compelling, state interest.
Because there are no material facts in dispute, Plaintiffs are entitled to summary
judgment on their claims.
53

A. Marriage is a Fundamental Right Under the Due Process
Clause.
The freedom to marry is a fundamental right protected by the Due Process
Clause. A fundamental right is one that is so rooted in the traditions and conscience of

51
See Loving, 388 U.S. at 12; Zablocki, 434 U.S. at 384; Turner v. Safley, 482 U.S. 78,
95, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Kitchen, 755 F.3d at 1209; Bostic v Schaefer,
__F.3d.__, 2014 WL 3702493, *10 (4th Cir. 2014).
52
Reno v. Flores, 507 U.S. 292, 303 (1993); see also U.S. v. Juvenile Male, 670 F.3d
999, 1012 (9th Cir. 2012) (citing Washington v. Glucksberg, 521 U.S. 702, 722, 117 S.Ct.
2258, 138 L.Ed.2d 772 (1997)).
53
See Anderson, 477 U.S. at 247; Fed. R. Civ. P. 56(a). Plaintiffs are prepared to
respond to Alaskas affirmative defenses when they have been articulated.


our people as to be ranked as fundamental.
54
In the words of the United States Supreme
Court, not only is the freedom to marry of fundamental importance for all individuals,
it is also the most important relation in life.
55
It is one of the vital personal rights
essential to the orderly pursuit of happiness by free men.
56
This freedom includes
personal choice in matters of marriage and family life.
57
The right to marry the
individual of ones choice can only be described as so rooted in the traditions and
conscience of our people as to be ranked as fundamental.
58

Personal choice is integral to marriage. The fundamental right to choose
ones spouse belongs to the individual: [T]he regulation of constitutionally protected
decisions, such as where a person shall reside or whom he or she shall marry, must be
predicated on legitimate state concerns other than disagreement with the choice the
individual has made.
59
States may not regulate individuals decisions on whom to marry
unless the regulations are strictly tailored to serve a compelling interest.
60

The Bill of Rights was designed to secure individual liberty.
61
The
freedom to marry is protected by the Constitution precisely because of the intimate
relationships a person forms, and the decision whether to formalize such relationships

54
Reno, 507 U.S. at 303 (quoting United States v. Salerno, 481 U.S. 729, 751, 107 S.Ct.
2076, 95 L.Ed.2d 668 (1987)).
55
Turner, 482 U.S. at 95.
56
Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
57
Loving, 388 U.S. at 12.
58
See Flores, 507 U.S. at 303; Kitchen, 755 F.3d at 1209.
59
Hodgson v. Minnesota, 497 U.S. 417, 435 (1990).
60
United States v. Juvenile Male, 670 F.3d 999, 1012 (9th Cir. 2012).
61
Roberts v. United States Jaycees, 468 U.S. 609, 618, 104 S.Ct. 3244, 82 L.Ed.2d 462
(1984).


through marriage, implicate deeply held personal beliefs and core values.
62
Regulating
individuals marriage choices undermines the core constitutional values and principles
that underlie the fundamental right to marry.
Permitting the government to make decisions about who can marry whom
imposes an intolerable burden on individual dignity and self-determination. In Loving,
the Supreme Court declared the anti-miscegenation statutes unconstitutional because the
choice to marry ultimately resides with the individual and cannot be infringed by the
State.
63
As the California Supreme Court recognized when it became the first state
Supreme Court to strike down a ban on marriage by interracial couples, people are not
interchangeable and the essence of the right to marry is freedom to join in marriage
with the person of ones choice.
64

The freedom to marry the individual of ones choice is a fundamental right
which Alaskas marriage bans greatly restrict. The bans deprive Plaintiffs of the
protected choice and the fundamental right to marry the person with whom each has
chosen to build a life, a home, and potentially, create a family. The bans significantly
interfere with decisions to enter into the marital relationship they categorically bar
individuals of a certain gender or sexual orientation from marrying whom they choose.
65

As explained in Section C below, these laws do not further any compelling or even

62
Id. at 619-620.
63
Loving, 388 U.S. at 12; see also Roberts, 468 U.S. at 620 ([T]he Constitution
undoubtedly imposes constraints on the States power to control the selection of ones
spouse.).
64
Perez v. Lippold, 198 P.2d 17, 21, 25 (Cal. 1948).
65
See Zablocki, 434 U.S. at 386; Kitchen, 755 F.3d at 1209.


legitimate government interests.
B. The Fundamental Right to Marry is not Restricted to
Heterosexuals.

In the context of challenges to same-sex marriage bans in other
jurisdictions, states have argued that the fundamental right to marry applies only to
individuals seeking to marry members of the opposite sex.
66
As other courts have
reasoned, this argument lacks merit. The fundamental right to marry is not limited to
certain people based on race, gender, sexual orientation, or other personal characteristics.
The freedom to marry is of fundamental importance for all individuals.
67

Indeed, the Supreme Court has never defined the right to marry by
reference to those permitted to exercise that right. The Supreme Courts decisions
address the fundamental right to marry not the right to interracial marriage, the
right to inmate marriage, or the right of people owing child support to marry.
68
As the
Tenth Circuit observed in its recent decision upholding the district courts summary
judgment striking down Utahs marriage ban, Kitchen v. Herbert, we cannot conclude
that the fundamental liberty interest in this case is limited to the right to marry a person of
the opposite sex. [T]he Supreme Court has traditionally described the right to marry
in broad terms independent of the persons exercising it.
69
The Fourth Circuit agreed in
Bostic v. Schaefer that the freedom to marry an individual of ones choice is not limited

66
See, e.g., Kitchen, 755 F.3d at 1209-10.
67
Zablocki, 434 U.S. at 384 (emphasis added).
68
See Loving, 388 U.S. at 12; Turner, 482 U.S. at 94-96; and Zablocki, 434 U.S. at 383-
86. Accord Kitchen, 755 F.3d at 1209; Bostic, __F.3d__, 2014 WL 3702493 at *9-10.
69
Kitchen, 755 F.3d at 1209; see also Bostic, __F.3d__, 2014 WL 3702493, *9-10.


to heterosexual persons.
70

The conclusion in Kitchen and Bostic is strongly supported by the
Supreme Courts recent jurisprudence on sexual orientation, which has invalidated laws
that discriminate against same-sex couples and confirmed that their relationships are
entitled to equal protection under the law. In Lawrence v. Texas,
71
the Supreme Court
held that lesbian and gay people have the same protected liberty and privacy interests in
their intimate personal relationships as heterosexual people. The Court explained that
decisions about marriage and relationships involv[e] the most intimate and personal
choices a person may make in a lifetime, choices central to personal dignity and
autonomy, and that [p]ersons in a homosexual relationship may seek autonomy for
these purposes, just as heterosexual persons do.
72

In United States v. Windsor, the Supreme Court powerfully reaffirmed the
equal dignity of same-sex couples relationships in the context of federal recognition of
marriages when it held that the Defense of Marriage Acts (DOMA) definition of
marriage as only between one man and one woman was a violation of Due Process. The
Windsor Court noted that the right to intimacy recognized in Lawrence can form but
one element in a personal bond that is more enduring.
73
As subsequent decisions have
concluded, Windsor makes clear that same-sex couples are like other couples with respect

70
Bostic, __F.3d__, 2014 WL 3702493, *9-10.
71
539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).
72
Id. at 574 (citation omitted).
73
United States v. Windsor, 133 S. Ct. at 2693, 2692 (quoting Lawrence v. Texas, 539
U.S. at 567).


to the inner attributes of marriage that form the core justifications for why the
Constitution protects this fundamental human right.
74

The right to marry the person of ones choice attaches to all individuals,
regardless of sexual-orientation, race, gender, profession, or any other distinction or
characteristic. Every individual has the fundamental right to marry the person of his or
her choice. Yet, Alaska law prevents same-sex couples from marrying. Such a law is
subject to strict scrutiny. To withstand constitutional scrutiny under the Due Process
Clause of the Fourteenth Amendment, Alaska must therefore show that its restriction on
the right to marry is strictly tailored to further a compelling interest. Because Alaska
cannot show that any legitimate interest is furthered by this regulation, the marriage bans
violate Due Process.
C. The Marriage Bans Violate Due Process Because the State Cannot
Show That They Further a Legitimate Interest.
While states may have a legitimate interest in regulating and/or promoting
marriage, to survive a constitutional challenge, regulations restricting marriage must be
narrowly tailored to serve a compelling state interest.
75
It is the governments burden
to establish that its interests are compelling and that the challenged law serves the stated

74
Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1200 (D. Utah 2013) (affd in Kitchen, 755
F.3d 1193); see also Bostic v. Rainey, 970 F.Supp.2d 456, 473 (E.D. Va. 2014) (Gay and
lesbian individuals share the same capacity as heterosexual individuals to form, preserve
and celebrate loving, intimate and lasting relationships. Such relationships are created
through the exercise of sacred, personal choices choices, like the choices made by
every other citizen, that must be free from unwarranted government interference.) (affd
in Bostic, __F.3d__, 2014 WL 3702493).
75
Bostic, 2014 WL 3702493 at *10; Juvenile Male, 670 F.3d at 1012.


interests.
76
Although the State in this case has not yet substantively argued that its
marriage bans serve any compelling interests, a few potential interests may be gleaned
from the States Answer: Alaska voters had a fundamental right to decide the important
public policy issue of whether to alter the traditional definition of marriage as between
one man and one woman.
77
Circuit and district courts from other jurisdictions have
considered these interests in marriage bans and found them insufficient to withstand
constitutional scrutiny. This Court must do the same.
The State suggests that the bans are lawful because they comport with the
traditional definition of marriage.
78
But appeals to history and tradition cannot justify
the harms that Alaskas marriage bans inflict on Plaintiffs. Tradition is not a
legitimate reason to infringe upon the fundamental right to marry.
79
The Supreme
Court held that banning interracial couples from marrying was unconstitutional in spite of
a long history and tradition of keeping races separate.
80
In fact, preserving the
traditional institution of marriage is just a kinder way of describing the States moral
disapproval of same-sex couples.
81
Moral disapproval of same-sex couples and
relationships is never a legitimate governmental interest that can save a law from

76
See Windsor, 133 S.Ct. at 2675; Kitchen, 755 F.3d at __________.
77
See answer at 19.
78
See id.; see also Att. 1.
79
See Loving, 388 U.S.at 12; Lawrence, 539 U.S. at 577-78; Bostic, __F.3d__, 2014 WL
3702493 at *12-13.
80
81
See Lawrence, 539 U.S. at 601 (Scalia, J., dissenting).


constitutional attack.
82
In a similar vein, defendant states in similar litigation across the
United States have alleged that prohibiting same-sex couples from marrying serves to
safeguard the institution of marriage.
83
This interest is not even rationally related to
excluding same-sex couples from marriage.
84

The States suggestion that voters are entitled to approve discriminatory
measures is highly disturbing and violates the essence of the Fourteenth Amendment.
85

The Bill of Rights exists to protect [personal rights] against the will of the majority.
86

Constitutional law is not a matter for majority vote.
87
Supreme Court precedent makes
clear that [a] citizens constitutional rights can hardly be infringed simply because
a majority of the people choose that it be.
88

Moreover, when laws draw distinctions based on some unpopular trait or
affiliation, as Alaskas marriage laws do here, they create or reflect [a] special
likelihood of bias on the part of the ruling majority.
89
Because those characteristics
are so seldom relevant to the achievement of any legitimate state interest[,] laws
grounded in such considerations are deemed to reflect prejudice and antipathy a view

82
Windsor, 133 S. Ct. at 2695; Lawrence, 539 U.S. at 571; Romer v. Evans, 517 U.S.
620, 634-35 (1996); Bostic, __F.3d__, 2014 WL 3702493 at *12; Bishop v. U.S. ex. Rel.
Holder, 962 F.Supp.2d 1252, 1289 (N.D.Okla.2014).
83
See Bostic, __F.3d__, 2014 WL 3702493 at *13.
84
Id.
85
See answer at 19.
86
Lucas v. Forty-Fourth General Assembly of State of Colo., 377 U.S. 713, 736-37
(1964).
87
Id. at 737 n.30 (quoting Lisco v. Love, 219 F.Supp. 922, 944 (D. Colo. 1963)).
88
Id.
89
New York City Transit Authority v. Beazer, 440 U.S. 568, 593 (1979).


that those in the burdened class are not as worthy or deserving as others.
90
Such
legislation is easily recognized as incompatible with the constitutional understanding
that each person is to be judged individually and is entitled to equal justice under the
law.
91

Nor can the marriage bans be defended, as they have been in other states,
based on arguments that excluding same-sex couples and their children from
marriage and the legal protections that accompany marriage will somehow promote
procreation by opposite-sex couples, or that married opposite-sex couples supposedly
make better parents than married same-sex couples.
92
Laws excluding same-sex
couples from marriage are woefully underinclusiveno other non-procreative couples
are barred from marriage under Alaska law.
93
Restricting the right to marry to
opposite-sex couples does not differentiate between procreative and non-procreative
couples.
94
As such, there is insufficient causal connection between prohibiting same-
sex marriage and the interest in procreation to withstand constitutional scrutiny.
95

Included in this argument is the idea that the marriage bans serve to
promote biological parenthood as well as households containing one mother and one

90
City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440 (1985).
91
Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982) (emphasis added).
92
Bostic, __F.3d__, 2014 WL 3702493 at *13-5; Kitchen, 755 F.3d at 1222-23; Geiger,
2014 WL 2054264 at *12-13; Latta, 2014 WL 1909999 at *23; DeBoer v. Snyder, 973
F.Supp.2d 757, 770 (E.D.Mich. 2014); DeLeon v. Perry, 975 F.Supp.2d 632, 654
(W.D.Tex. 2014).
93
See Bostic, __F.3d__, 2014 WL 3702493 at *14.
94
Id.
95
Kitchen, 755 F.3d at 1222.


father.
96
States have argued that prohibiting same-sex couples from marrying serves to
promote optimal child welfare.
97
Courts have found that any link between this interest
and marriage bans is so attenuated that it will not survive rational basis review, let alone
strict scrutiny.
98
Even assuming that states have an interest in having children raised by
their biological parents, prohibiting same-sex couples from marrying is not narrowly
tailored to achieve that end.
99

The State of Alaskas potential arguments have no basis in reality, and
there simply is no rational connection between forbidding same-sex couples to marry
and any asserted governmental interest in encouraging procreation and parenting of
biological children by married opposite-sex couples. Preventing same-sex couples
from marrying does nothing to advance these goals, but serves only to penalize and
inflict gratuitous injury on same-sex couples and the children they are already
raising.
100

Summary judgment is appropriate in this case. As set forth in the Joint
Planning Status Report, the parties do not disagree as to any material issue of fact.
101
The
question at issue is whether Alaskas laws violate Due Process. The vast majority of
courts agree that such laws are an impermissible infringement on a fundamental right. As
a general matter, States defending such bans have been unable to articulate how their

96
See Att. 1 at 1.
97
See, e.g., Kitchen, 755 F.3d at 1223; see also Att. 1 at 1.
98
Latta, 2014 WL 1909999, *22.
99
Bishop v. Smith, __F.3d___, 2014 WL 3537847, *7-8 (10th Cir. Jul. 18, 2014).
100
See, e.g., Windsor, 133 S. Ct. at 2696; Kitchen, 755 F.3d at 1223.
101
See Document 13 -Joint Revised Scheduling and Planning Report III, at 2.


alleged interests are in fact served by their discriminatory laws. United States District
Courts have recently held similar marriage bans unconstitutional in California, Florida,
Idaho, Illinois, Indiana, Kentucky, Michigan, Ohio, Oklahoma, Oregon, Pennsylvania,
Texas, Utah, Virginia, and Wisconsin.
102
Three of these summary judgment decisions
have already been affirmed by circuit courts.
103
(Based on oral argument held on August
26, 2014, it seems highly likely that the Seventh Circuit will affirm the Wisconsin and
Indiana judgments as well.) These decisions are well-reasoned and based on United
States Supreme Court precedent. This Court would be well-advised to grant Plaintiffs
motion for summary judgment.

102
Perry v. Schwarzenegger, 704 F.Supp.2d 921, 991 (N.D. Cal. 2010) (striking down
California marriage ban and holding that [t]he freedom to marry is recognized as a
fundamental right protected by the Due Process Clause, and Plaintiffs do not seek
recognition of a new right); Brenner v. Scott, __F.Supp.2d__, 2014 WL 4113100 (N.D.
Fla. 2014); Latta, 2014 WL 190999; Gray v. Orr, __F.Supp.2d__, 2013 WL 6355918
(N.D. Ill. 2013) (granting temporary injunction based on likelihood of success on merits
of constitutional challenge); Baskin v. Bogan, __F.Supp.2d__, 2014 WL 2884868 (S.D.
Ind. 2014) (on appeal to the 7th Cir.); Love v. Beshear, 989 F.Supp.2d 536, 539 (W.D.
Ky. 2014); DeBoer, 973 F.Supp.2d at 760; Henry v. Himes, __F.Supp.__, 2014 WL
1418395 at *9 (S.D. Ohio 2014) (holding that the right to marriage is a fundamental
right that is denied to same-sex couples in Ohio by the marriage recognition bans);
Bishop, 962 F.Supp.2d at 1259; Geiger, 2014 WL 2054264; Whitewood, 992 F.Supp.2d
at 420; De Leon, 975 F.Supp.2d at 659 (prohibiting Texas from defin[ing] marriage in a
way that denies its citizens the freedom of personal choice in deciding whom to marry
(quoting Windsor, 133 S.Ct. at 2689; Kitchen v. Herbert, 961 F.Supp.2d 1181, 1192
(Utah 2013); Bostic v. Rainey, 970 F.Supp.2d 456, 469 (E.D.Va. 2014); Wolf, 986
F.Supp.2d at *43 (holding that the Wisconsin ban violates plaintiffs fundamental right
to marry). See also, In re Marriage Cases, 183 P.3d 384, 433-34 (Cal. 2008);
Goodridge, 798 N.E.2d at 957.
103
Bostic v. Schaefer, __F.3d__, 2014 WL 3702493 (affirming District Courts summary
judgment); Bishop v. Smith, __F.3d__, 2014 WL 3537847 (same); Kitchen, 755 F.3d at
1209 (same).


In this case, Plaintiffs in each couple have demonstrated their commitment
to one another, built stable families together, and contributed to their communities, and
they yearn to participate in the deeply valued and cherished institution of marriage, which
confers important legal rights and obligations.
104
They seek to be treated as equal,
respected, and participating members of society wholike othersare able to marry the
person of their choice.
Like the laws struck down by courts in other states, Alaskas marriage
bans violate Plaintiffs dignity and autonomy by denying them the freedomenjoyed by
all other Alaska residentsto marry the person with whom they have forged enduring
bonds of love and commitment and who, to each of them, is irreplaceable.
105
Because the
choice of whom to marry is the quintessential type of personal decision protected by due
process, courts across the country have struck down state laws that purport to bar same-
sex couples from marrying or deny recognition for valid marriages celebrated in other
statesreaffirming that whether gay, lesbian, or heterosexual, all persons are guaranteed
the fundamental right to marry.
Like 3 of DOMA and other states marriage bans, AS 25.50.011 and
the Alaskan constitutional provision restricting marriage to one man and one woman
violate due process. The State cannot show that the bans are narrowly tailored to serve a

104
See, e.g., AS 13.12.102, 13.12.202, 13.12.402-.405, 13.26.145, 13.26.210,
13.75.020, 23.30.215, 23.30.395(40)(41), 25.20.020, 25.20.030, 25.20.045, 25.23.020,
25.23.090, 25.23.100, 34.15.140, 34.77.070; 7 AAC 40.240-.280; see generally
Complaint, 36.
105
Id.


compelling state interestindeed, they cannot survive even rational basis review. The
bans violate due process and Plaintiffs are entitled to relief as a matter of law.
II. ALASKAS MARRIAGE BANS DENY PLAINTIFFS EQUAL
PROTECTION OF THE LAWS.
The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution provides that [n]o State [shall] deny to any person within its
jurisdiction the equal protection of the laws.
106
Alaskas marriage bans violate equal
protection for two reasons. First, because the laws infringe on a fundamental right, they
are subject to, and fail, strict scrutiny review. Second, by excluding same-sex couples
from marriage, Alaskas marriage bans discriminate based on sexual orientation and
gender. Such discriminatory laws require heightened scrutiny under the Equal Protection
Clause and must be invalidated unless they have an exceedingly persuasive
justification.
107
Alaskas marriage bans not only fail this exacting scrutiny, but cannot
survive even the more deferential rational basis review because there is no rational
connection between any legitimate governmental objective and the exclusion of same-sex
couples from the protections and obligations of civil marriage. In light of the settled law
on this issue, summary judgment for Plaintiffs is appropriate.
A. Alaskas Marriage Bans Violate Equal Protection Because They
Impermissibly Infringe on a Fundamental Right.
As explained in Section I above, marriage is a fundamental right due to
every individual under the Due Process Clause of the Fourteenth Amendment to the

106
U.S. Const. Amend. XIV, 1.
107
United States v. Virginia, 518 U.S. 515, 531, 116 S.Ct. 2264, 135 L.Ed.2d 735
(1996); SmithKline, 740 F.3d at 483; see also Windsor, 133 S.Ct. at 2675.


United States Constitution. Under both the Due Process Clause and the Equal Protection
Clause interference with a fundamental right warrants the application of strict
scrutiny.
108
Thus, the marriage bans can only survive an equal protection challenge if
the State of Alaska can show that the bans are narrowly tailored to serve a compelling
government interest. As explained in Section I.C., above, the State cannot make the
requisite showing. The marriage bans are an impermissible infringement on Alaskans
fundamental right to marry the person of their choice.
B. Alaskas Bans on Marriage of Same-Sex Couples Violate Equal
Protection Because They Discriminate Based on Sexual Orientation
and Gender without Furthering a Compelling State Interest.

1. SmithKline Requires Application of Heightened Scrutiny Because
Alaskas Marriage Bans Discriminate on the Basis of Sexual
Orientation.
In SmithKline, the Ninth Circuit held that the Supreme Courts decision in
United States v. Windsor requires that heightened scrutiny be applied to equal
protection claims involving sexual orientation.
109
As explained below, there is no
doubt that SmithKline requires this Court to apply heightened scrutiny to Plaintiffs Equal
Protection claim.
SmithKline involved a constitutional challenge to the peremptory strike of
a prospective juror during jury selection for a trial between two pharmaceutical

108
Bostic, __F.3d__, 2014 WL 3702493 at *8 (citing Washington v. Glucksberg, 521
U.S. 702, 719-20 (1997); see also Zablocki, 434 U.S. at 383; Kitchen, 755 F.3d at 1222.
109
SmithKline, 740 F.3d at 481.


companies.
110
During jury selection, Juror B was the only member of the jury pool
who was self-identified as gay. One of the drug companies exercised its peremptory
strike against Juror B. The other company raised a Batson challenge, which the trial
court denied. The denial was appealed.
111
The Ninth Circuit concluded that the
challenge amounted to purposeful discrimination on the basis of sexual orientation which
would require reversal unless the type of discrimination at issue was normally subject to
rational basis review.
112
The dispositive question in SmithKline was therefore whether
classifications based on sexual orientation are subject to heightened scrutiny under equal
protection analysis.
In answering this question, the Ninth Circuit carefully examined the
Supreme Courts decision in Windsor and concluded that Windsor requires that when
state action discriminates on the basis of sexual orientation, [courts] must examine its
actual purposes and carefully consider the resulting inequality to ensure that our most
fundamental institutions neither send nor reinforce messages of stigma or second-class
status.
113
Notably, the court also held that earlier [Ninth Circuit] cases applying
rational basis review to classifications based on sexual orientation cannot be
reconciled with Windsor.
114
Rather, because we are required by Windsor to apply
heightened scrutiny to classifications based on sexual orientation for purposes of

110
Id.
111
Id.
112
Id.
113
114
Id.


equal protection there can no longer be any question that gays and lesbians are no
longer a group or class of individuals normally subject to rational basis
review.
115
SmithKline therefore establishes that, in the Ninth Circuit, laws that
discriminate based on an individuals sexual orientation are subject to heightened
scrutiny.
As numerous other courts have recently held, laws that restrict marriage or
marriage recognition to opposite-sex couples purposefully discriminate based on sexual
orientation.
116
Alaskas marriage laws, by design, discriminate based on an individuals
sexual orientation. The Alaska legislature amended AS 25.50.011 specifically to
prevent gay men and lesbians from marrying.
117
Similarly, the constitutional provision
singles out same-sex couples for adverse treatment on the basis of sexual orientation.
Because there is no question here that the marriage bans discriminate based on sexual
orientation, SmithKline is controlling and requires that the court apply heightened scrutiny
to Alaskas marriage bans.
Historically, a discriminatory law subject to heightened scrutiny violates
the Equal Protection Clause unless the government can show that the discrimination is

115
Id. (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 143 (1994)).
116
See e.g., Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012) (analyzing
federal DOMA as discriminating against gay and lesbian people); Massachusetts v.
United States Dept. of Health & Human Services, 682 F.3d 1, 11 (1st Cir. 2012) (same);
Perry, 704 F.Supp.2d at 997; In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011); In re
Marriage Cases, 183 P. 3d at 442-43; Kerrigan v. Commissioner of Public Health,
957 A.2d 407, 431-32 (Conn. 2008); Varnum v. Brien, 763 N.W.2d 862, 896 (Iowa
2009).
117
See Attachment 1 at 2-3, 5.


substantially related to the achievement of an important governmental interest.
118
Under
Windsor, a law whose principal purpose is to treat a particular group of people unequally
violates equal protection unless a legitimate purpose overcomes the discriminatory
purpose and effect.
119
Windsor requires this Court to evaluate the purported justifications
of the challenged law, consider the laws actual purposes, and decide whether the
proffered justifications overcome the injury and indignity inflicted on Plaintiffs and
others like them.
120
Unlike rational basis review, heightened scrutiny under Windsor
does not allow the consideration of post hoc justifications for the law.
121

The Court in Windsor did not consider hypothetical justifications for
DOMA, as an ordinary rational basis analysis would require. Instead, it examined the
statutes text and legislative history to determine that DOMAs principal purpose is to
impose inequality, not for other reasons like governmental efficiency.
122
In addition,
Windsor carefully considered the severe harm to same-sex couples and their families
caused by DOMAs denial of recognition to their marriage and required Congress to
articulate a legitimate governmental interest strong enough to overcome the disability
on a class of persons.
123
This Court must apply the same careful consideration to
Alaskas similarly purposeful unequal treatment of same-sex couples.

118
See Hibbs v. Department of Human Resources, 273 F.3d 844, 855 (9th Cir. 2001).
119
120
Id. at 481-82; see also Latta, __F.Supp.2d__, 2014 WL 1909999 at *18.
121
Id.
122
Windsor, 133 S.Ct. at 2694.
123
Id. at 2696.


2. Alaskas Marriage Bans Violate Equal Protection under
Heightened Scrutiny Applicable to Discrimination Based on Sexual
Orientation.
Under the analysis required by Windsor and SmithKline, Alaskas
marriage bans violate equal protection for the same reasons the Supreme Court in
Windsor held that DOMA did so. In Windsor, the Supreme Court held that Section 3 of
DOMA, which excluded married same-sex couples from federal benefits, violated basic
due process and equal protection principles because it was enacted in order to treat a
particular group of people unequally.
124
The Court found that no legitimate purpose
sufficed to overcome that discriminatory purpose and effect.
125

Just as the principal purpose and necessary effect of DOMA were to
impose inequality on same-sex couples and their children, so too the principal purpose
and effect of Alaskas marriage bans is to prevent same-sex couples from gaining the
protections of marriage.
126
Like DOMA, Alaskas marriage bans were enacted precisely
in order to treat same-sex couples unequally.
127
The title of the legislation was An act
clarifying statute relating to persons who may legally marry; relating to same-sex
marriages and the short title was Prohibit Same Sex Marriages.
128
Various supporters
of the legislation testified about the need to exclude same-sex couples from marriage and
the desire to deny these couples access to the rights and privileges opposite-sex married

124
Id. at 2693.
125
Id. at 2696.
126
Id. at 2694, 2695.
127
See Attachment 1.
128
Id.


couples enjoy.
129
One testified that marriage should not apply to same-sex couples
because gay literature and studies say that few gay couples are stable, [and] those that
are stable have an understanding allowing outside sexual contact.
130
Referring to low
life-expectancy, another testified that elevating the dangerous practices of
homosexuality with legally protected status is devoid of reason and morality.
131
Others
testified that the law should pass in order to protect discriminatory practices.
132

Supporters of the bill repeatedly referred to morality, appropriate sexual behavior,
religious doctrine, protecting traditional marriage, and the like.
133
Alaskas marriage
bans did not create any new rights or protections for opposite-sex couples; rather, their
only purpose and effect were to ensure that same-sex couples could not exercise the
freedom to marry.
134

Moreover, like DOMA, the bans inflict serious harms on same-sex couples
and their children, depriving them of hundreds of rights and protections under Alaska law
and stigmatizing their families as inferior and unworthy of respect.
135
Like DOMA,
Alaskas bans burden the lives of same-sex couples by reason of government decree, in
visible and public ways . . . from the mundane to the profound, and make it even more

129
See Attachment 1 at 1, 5.
130
Id. at 1.
131
Id. at 5.
132
Id.
133
Id. at 1, 5, 7.
134
Cf. DeLeon, 975 F.Supp.2d at 655 (the only purpose served by a state marriage ban is
the same improper purpose that failed in Windsor and in Romer: to impose inequality
and to make gay citizens unequal under the law) (internal citations omitted).
135
See Complaint, 36.


difficult for the children to understand the integrity and closeness of their own family and
its concord with other families in their community and in their daily lives.
136
The bans
also bring financial harm to children of same-sex couples by denying their families a
multitude of benefits that the State and the federal government offer to legal spouses and
their children.
137

Also like DOMA, Alaskas marriage bans are not justified by any
legitimate governmental interests sufficient to overcome those serious harms. The
legislative history makes clear that Alaskas marriage bans were enacted primarily on the
improper basis of moral disapproval.
138
Although the State of Alaska has not advanced
any justifications, as explained in Section I.C, above, possible government interests
cannot withstand even rational basis review, let alone heightened scrutiny.
Moreover, every purported justification asserted by defendants in marriage
cases around the country was presented to the Supreme Court by the Respondent in
urging the Court to uphold DOMA in Windsor.
139
None of those purported governmental

136
Windsor, 133 S. Ct. at 2694.
137
Id. at 2695; see Complaint, 36, AS 25.05.361, 34.15.140, 25.20.020, 25.20.045,
25.24.020, 13.26.145, 13.26.210.
138
See generally Plaintiffs Attachment 1; Bostic, __F.3d__, 2014 WL 3702493 at *12;
see also Lawrence, 539 U.S. at 571.
139
See Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the
U.S. House of Representatives, Windsor, 133 S.Ct. at 2675, 2013 WL 267026 at *21, 43-
49 (arguing that Congress could rationally decide to retain the traditional definition for
the same basic reasons that states adopted the traditional definition in the first place and
that many continue to retain it).


interests was sufficient to save DOMA from invalidity, and they are equally insufficient
under the careful consideration required here.
140

3. The Marriage Bans also Violate Equal Protection Because They
Cannot Survive the Scrutiny Applicable to Laws That Discriminate
on the Basis of Gender.
In addition to discriminating against same-sex couples based on their
sexual orientation, Alaskas marriage bans also openly discriminate based on gender.
Each of the Plaintiff couples would be permitted to marry, or have their marriage
recognized, if his or her partner were a different sex. Plaintiffs are denied these rights
solely because they are not of a different sex.
141

In other marriage cases, defendants have argued that marriage bans do not
discriminate based on gender since they prohibit both men from marrying men and
women from marrying women. In Loving, the Supreme Court rejected the argument that
Virginias law prohibiting interracial marriage should stand because it imposed its
restrictions equally on members of different races.
142
It later found that racial
classifications do not become legitimate on the assumption that all persons suffer them
in equal degree.
143
And as explained by the California Supreme Court, [t]he decisive

140
Id. at 2696.
141
See Kitchen, 961 F.Supp.2d at 1206 (Amendment 3 [Utahs marriage ban] involves
sex-based classifications because it prohibits a man from marrying another man, but does
not prohibit that man from marrying a woman.); Perry, 704 F.Supp.2d at 996 (state
marriage ban discriminates based both on sexual orientation and gender).
142
143
Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (holding
that race-based peremptory challenges are invalid even though they affect all races).


question is not whether different races, each considered as a group, are equally treated.
The right to marry is a right of individuals, not of racial groups.
144

That same reasoning applies to gender-based classifications.
145
Under
Loving, Powers, and J.E.B., the gender-based classifications in Alaskas marriage bans
are not valid simply because they affect men and women the same way. Rather, the
relevant inquiry under the Equal Protection Clause is whether the law treats an individual
differently because of his or her gender: [t]he neutral phrasing of the Equal Protection
Clause, extending its guarantee to any person, reveals its concern with rights of
individuals, not groups (though group disabilities are sometimes the mechanism by which
the State violates the individual right in question).
146

Alaskas marriage bans impermissibly seek to enforce a gender-based
requirement that a woman should only marry a man, and that a man should only marry a
woman. Alaskas current marriage laws do not treat husbands and wives differently in
any respect; spouses have the same rights and obligations regardless of their gender. A
requirement that spouses must be of different genders is an irrational vestige of the
outdated notion long rejected in other respects by the Alaska Legislature and the
courts that men and women have different proper roles in marriage.

144
Perez, 198 P.2d at 20.
145
See J.E.B., 511 U.S. at 140-41 (citing Powers, 499 U.S. at 412, extending its
reasoning to sex-based peremptory challenges, and holding that such challenges are
unconstitutional even though they affect both male and female jurors).
146
J.E.B., 511 U.S. at 146, 152 (Kennedy, J., concurring in the judgment).


The Supreme Court has held that the government may not enforce
gendered expectations about the roles that women and men should perform within the
family, whether as caregivers, breadwinners, heads of households, or parents.
147
Like the
laws in those cases, Alaskas marriage bans use a gender-based classification not to
further an important governmental interest, but rather simply to reinforce the gendered
expectation that marriage should include a man and a woman. While that expectation
may hold true for some people, it does not hold true for the Plaintiff couples and other
same-sex couples who yearn to be married to the person of their choice.
Under settled law, gender-based classifications are presumed to be
unconstitutional; such a law can be upheld only if supported by an exceedingly
persuasive justification.
148
Alaskas reliance on gender to exclude same-sex couples is
not supported by any exceedingly persuasive justification. To the contrary, as explained
in the previous section, it cannot survive any level of constitutional review because there
is no legitimate government interest in barring same-sex couples from marriage. As a
matter of settled law, Alaskas statutory and constitutional same-sex marriage bans

147
See, e.g., Reed v. Reed, 404 U.S. 71, 76-77 (1971) (invalidating Idaho law that gave
men preference over women in administering estates); see also Califano v. Westcott, 443
U.S. 76, 89 (1979) (finding unconstitutional a federal statute based on the stereotype that
a father is the provider while the mother is the center of home and family life); Orr v.
Orr, 440 U.S. 268, 283 (1979) (invalidating measure imposing alimony obligations on
husbands, but not on wives, because it carries with it the baggage of sexual
stereotypes); Stanton v. Stanton, 421 U.S. 7, 14-15 (1975) (finding unconstitutional state
support statute assigning different age of majority to girls than to boys and stating, [n]o
longer is the female destined solely for the home and the rearing of the family, and only
the male for the marketplace and the world of ideas).
148
Virginia, 518 U.S. at 524 (internal quotation marks omitted).


impermissibly discriminate on the basis of gender and sexual orientation and are a
violation of Plaintiffs right to equal protection.
III. ALASKAS ANTI-RECOGNITION LAWS VIOLATE THE MARRIED
PLAINTIFFS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND
EQUAL PROTECTION.
Alaska Statute 25.05.013 bars recognition of the marriage of same-sex
couples lawfully married in other jurisdictions. The Alaska Constitution was amended in
1998 to contain a similar prohibition. In addition to violating the Due Process and Equal
Protection Clauses for the same reasons as Alaskas marriage bans, these anti-recognition
laws violate due process for other reasons. Plaintiffs are entitled to summary judgment
on this issue as well.
A. Alaskas Anti-Recognition Laws Violate the Fundamental Right to
Remain Married.
The right to privacy and respect for an existing marital relationship is, in
itself, a distinct fundamental right, independent of an individuals right to marry in the
first instance. Windsor held that legally married same-sex couples have a protected due
process liberty interest in their existing marriages, and that this interest was violated by
the federal governments refusal to respect them.
149
And years before Windsor, the
Supreme Court recognized the fundamental importance of the right to remain married.
Loving involved an anti-recognition law: the Supreme Court struck down Virginias law
denying recognition to an interracial couple who legally married in the District of

149
Windsor, 133 S.Ct. at 2695 (holding that Section 3 of DOMA deprived same-sex
spouses of the liberty of the person protected by the Fifth Amendment of the
Constitution).


Columbia.
150
And the Court in Washington v. Glucksberg recognized marital privacy as
a fundamental interest.
151
In M.L.B. v. S.L.J.,
152
the Supreme Court explained: [c]hoices
about marriage, family life, and the upbringing of children are among associational rights
this Court has ranked as of basic importance in our society, and laws that interfere with
those relationships require close consideration.
153
The entire marriage relationship lies
within the zone of privacy created by fundamental constitutional guarantees.
154

Spousal relationships, like parent-child relationships, are among the intimate family
bonds whose preservation must be afforded a substantial measure of sanctuary from
unjustified interference by the State.
155
As noted in Zablocki, there is a difference
between a sphere of privacy or autonomy surrounding an existing marital relationship
into which the State may not lightly intrude and regulation of the conditions of entry
into . . . the marital bond.
156
The right to remain married is thus fundamental in its own
right.
Windsor held that Section 3 of DOMA violated the due process rights of
married same-sex couples by refusing to give them the same respect and protections
given to other married couples under federal law.
157
For similar reasons, Alaskas anti-
recognition law violates the due process rights of same-sex spouses by refusing to give

150
151
Washington, 521 U.S. at 719.
152
519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996)
153
Id. at 116-17 (internal citations and quotations omitted).
154
Griswold, 381 U.S. at 485.
155
Roberts, 468 U.S. at 618.
156
See Zablocki, 434 U.S. at 397 n.1 (Powell, J., concurring).
157
Windsor, 133 S. Ct. at 2695-96.


them the same respect and protections given to other married couples under Alaska law.
In both cases, the denial of recognition interferes with existing marital relationships and
touches many aspects of married and family life, from the mundane to the profound,
and no legitimate purpose serves to overcome the infliction of those substantial harms.
158

Following Windsor, federal courts considering the question have
consistently held the fundamental right to marry necessarily includes the right to remain
married.
159
Accordingly, once you get married lawfully in one state, another state
cannot summarily take your marriage away.
160
The Supreme Court has established that
existing marital, family, and intimate relationships are areas into which the government
should generally not intrude without substantial justification.
161
As the district court in
Obergefell v. Wymyslo explained: [w]hen a state effectively terminates the marriage of a
same-sex couple married in another jurisdiction, it intrudes into the realm of private
marital, family, and intimate relations specifically protected by the Supreme Court.
162

The married Plaintiff couples have the same interests as other married couples in the

158
Id. at 2694.
159
Kitchen, 755 F.3d at 1213; Latta, F.Supp.2d at__, 2014 WL 1909999, at *13;
Henry, __F.Supp.2d__, 2014 WL 1418395, at *7; DeLeon, 975 F.Supp.2d at 661-
62; Obergefell v. Wymyslo, 962 F.Supp.2d 968, 978 (S.D.Ohio 2013).
160
Obergefell, 962 F. Supp.2d at 973; see also Henry, 2014 Wl 1418395 at *9.
161
Obergefell, 962 F.Supp.2d at 978 (citing Roberts, 468 U.S. at 618; Lawrence, 539
U.S. at 578); AS 25.05.013.
162
Obergefell, 962 F.Supp.2d at 979; Bourke, 2014 WL 556729 at *13 (noting Windsor
would seem to command that a [state] law refusing to recognize valid out-of-state same-
sex marriages has only one effect: to impose inequality); Henry, 2014 WL 1418395 at
*9.


liberty, autonomy, and privacy afforded by the fundamental right to marry and stay
married.
1. Alaskas Anti-Recognition Laws Inflict Significant Harm on
Married Same-Sex Couples And Their Children.
By treating legally married same-sex couples as legal strangers to one
another, Alaska disrupts their protected family relationships and, in effect, forces
them, unlike other married couples, to shed [their marital status] like a garment on
entering this state.
163
Marriage is the only means by which two adults can establish a
family unit that must be legally respected by the state and by others. Alaskas laws
provide married couples with protections and obligations that enable them to make a
legally binding commitment to one another and to their children, and to be treated
as a legal family.
164
These state-law protections range from the mundane to the
profound, but many are designed to assist families in their times of greatest need and to
protect them when misfortune strikes unexpectedly.
165
Alaskas anti-recognition laws
deprive same-sex couples of the certainty, stability, permanence, and predictability
that marriage is designed to provide, protections that other couples who married outside
Alaska automatically enjoy.
There is no doubt that when a state effectively terminates the
marriage of a same-sex couple married in another jurisdiction, it intrudes into the

163
Morrison v. Sunshine Mining Co., 127 P.2d 766, 769 (Idaho 1942).
164
See, e.g., AS 13.12.102, 13.12.202, 13.12.402-.405, 13.26.145, 13.26.210,
13.75.020, 23.30.215, 23.30.395(40)(41), 25.20.020, 25.20.030, 25.20.045, 25.23.020,
25.23.090, 25.23.100, 34.15.140, 34.77.070.
165
Windsor, 133 S. Ct. at 2694; see, e.g., AS 13.26.145, 13.26.210, Complaint 36.


realm of private marital, family, and intimate relations specifically protected by the
Supreme Court.
166
Alaskas anti-recognition laws tell[ ] those couples, and all the
world, that their otherwise valid marriages are unworthy of recognition.
167

Alaskas anti-recognition laws also humiliate the children of married same-sex couples
by telling them that the State of Alaska regards their parents marriages and their
families as less worthy of recognition than other marriages and families indeed,
that their families are worthy of no recognition at all.
168

B. Alaskas Anti-Recognition Laws Violate Equal Protection.
Alaskas anti-recognition laws deprive the married Plaintiffs of equal
protection for reasons similar to those that led the Supreme Court to invalidate Section 3
of DOMA.
In Windsor, the Supreme Court held that DOMAs targeting of married
same-sex couples required careful consideration for two reasons. First, the statute
departed from the federal governments longstanding practice of deferring to the states to
determine marital status. Second, it did so in order to subject a particular group of

166
Obergefell, 962 F.Supp.2d at 979.
167
Windsor, 133 S.Ct. at 2694; see also Obergefell, 962 F.Supp.2d at 979 (Ohios
official statutory and constitutional establishment of same-sex couples married in other
jurisdictions as a disfavored and disadvantaged subset of people has a destabilizing
and stigmatizing impact on them.).
168
See Windsor, 133 S. Ct. at 2694.


married couples to unequal treatment.
169
The Court observed that DOMAs principal
effect is to identify a subset of state-sanctioned marriages and make them unequal.
170

Like DOMA, Alaskas anti-recognition laws are unusual. They constitute
an unprecedented departure from this states longstanding practice and law of
recognizing valid marriages from other states, even where the marriage would have been
prohibited under Alaska law. Further, like DOMA, Alaskas anti-recognition laws target
married same-sex couples and were not enacted for any reason independent of excluding
those married couples from recognition: [t]he principal purpose is to impose
inequality.
171
Such a law fails the requirement of equal protection in the most basic
way.
172

Alaskas anti-recognition laws violate equal protection for the same
reasons that DOMA and other similar state anti-recognition laws that have been struck
down since Windsor violate that guarantee. The State has no legitimate interest in
treating the marriages of same-sex couples as inferior to or less respected than the
marriages of opposite-sex couples, or in denying the many protections, benefits, and
responsibilities of marriage to same-sex couples. The purpose and effect of these laws
are to single out an unpopular group and cause its members harm. Such laws cannot
survive equal protection review under any level of scrutiny, let alone under the
heightened scrutiny required by Windsor and SmithKline.

169
Id. at 2693.
170
Id. at 2694.
171
Id.
172
Id. at 2693.


C. Section 2 of DOMA does not Bar Plaintiffs Claims.
Defendants argue that Plaintiffs claims are barred by Section 2 of
DOMA.
173
Section 2, however, has no impact on Plaintiffs claims because it is an
entirely permissive federal law that does not mandate that states take any particular
action, does not remove any discretion from states, does not confer benefits upon
nonrecognizing states, and does not punish recognizing states.
174

It is Alaskas marriage bans, not Section 2 of DOMA, that harm
Plaintiffs.
175
In addition, Congress cannot, through DOMA or otherwise, authorize
Alaska to violate the Fourteenth Amendments guarantees of equal protection and due
process through its marriage bans: [w]hatever powers Congress may have under the Full
Faith and Credit Clause, Congress does not have the power to authorize the individual
States to violate the Equal Protection Clause.
176
Accordingly, Section 2 cannot shield
Defendants from an otherwise proper constitutional challenge to Alaskas discriminatory
marriage laws.

IV. BAKER V. NELSON DOES NOT BAR PLAINTIFFS CLAIMS.
Defendants erroneously assert that Baker v. Nelson
177
bars this Court from
considering the merits of Plaintiffs claims.
178
In Baker, the Supreme Court summarily

173
See Answer at 19 (9. The State of Alaska is not required to give recognition to the
marriage of Plaintiffs celebrated in other states under 28 U.S.C. 1738C.).
174
Bishop, 962 F.Supp.2d at 1266.
175
Id. (The injury of non-recognition stems exclusively from state law.).
176
See DeLeon, 975 F. Supp.2d at 661 (quoting Graham v. Richardson, 403 U.S. 365,
382, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971)).
177
409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972).
178
See Answer at 19.


dismissed an appeal from the Supreme Court of Minnesota in a one-sentence opinion for
want of a substantial federal question.
179
The Minnesota Supreme Court had held that a
state statute that the court interpreted to bar same-sex marriages did not violate the
Fourteenth Amendments Due Process or Equal Protection Clauses.
180

Summary dismissals are no longer binding when doctrinal
developments illustrate that the Supreme Court no longer views a question as
unsubstantial.
181
To say that intervening doctrinal developments have limited Bakers
precedential effect regarding the issues in this case would be a considerable
understatement.
At the time Baker was decided, the Supreme Court had not yet held: (1)
that classifications based on sex require heightened judicial scrutiny;
182
(2) that laws
enacted to disadvantage gay and lesbian people lack a rational basis;
183
(3) that adult
same-sex couples have a constitutionally protected right to engage in intimate sexual
conduct and to have their relationships treated with equal dignity;
184
or (4) that married
same-sex couples have a protected liberty interest in their marriages that must be given
equal recognition and respect by the federal government.
185

179
Baker, 409 U.S. 810.
180
Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971).
181
Bostic, __F.3d__, 2014 WL 3702493 at *6 (quoting Hicks v. Miranda, 422 U.S. 332,
344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975)).
182
See Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764 (1973)
183
See Romer, 517 U.S. 620.
184
See Lawrence, 539 U.S. at 559.
185
See Windsor, 133 S. Ct. at 2694.


Every federal court presented with this issue since the Supreme Court
decided Windsor has concluded that doctrinal developments have stripped Baker of its
status as binding precedent.
186
This Court should do the same. As the Fourth and Tenth
Circuits and other courts have held, in light of significant doctrinal developments,
Bakers summary affirmance is no longer controlling precedent.
187

Moreover, Baker does not control here because this case does not involve
the precise issues presented and necessarily decided in Baker.
188
At the time Baker
was decided, same-sex couples were not permitted to marry in any state, and no state had
enacted a law denying recognition to married same-sex couples. Therefore Baker did not
address the constitutionality of measures like Alaskas anti-recognition law.
Further, unlike the marriage ban at issue here, the Minnesota law in Baker
lacked an express statutory prohibition against same-sex marriages.
189
In contrast,
Alaskas marriage ban intentionally targets same-sex couples in order to treat them
unequally, rais[ing] the inevitable inference that the disadvantage imposed is born of
animosity toward the class of persons affected.
190
The Baker court did not have
occasion to consider the validity of such a law.

186
See, e.g., Bostic, __F.3d__, 2014 WL 3702493 at *6; Kitchen, 755 F.3d at 1205-08;
Windsor v. United States, 699 F.3d at 178-79 (2d Cir. 2012).
187
Bostic, 2014 WL 3702493, at *6; Kitchen, 755 F.3d at 1205-08.
188
Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977).
189
Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971).
190
Romer, 517 U.S. at 634.


V. DEFENDANTS OTHER AFFIRMATIVE DEFENSES LACK MERIT.
Plaintiffs have moved for summary judgment in their favor on their claims
and on all of Defendants affirmative defenses. Plaintiffs reserve the right to respond in
detail to affirmative defenses when they are more fully articulated by Defendants.
Plaintiffs have standing under Article III to the Constitution which provides in part that
[t]he judicial power shall extend to all cases, in law and equity, arising under this
Constitution . . . . To have standing, (1) Plaintiffs must have suffered an injury in fact;
(2) that injury must be caused by the conduct complained of; and (3) it must be likely that
the injury will be redressed by a favorable decision.
191
For Plaintiffs to assert their claims
against state and local officials for violating their constitutional rights, it must be shown
that Defendants, acting under color of law, have deprived Plaintiffs of their rights,
privileges, or immunities secured by the Constitution and laws .
192
Plaintiffs have
suffered an injury in fact in that they have been denied the right to marry in their home
state and the marriage laws deprive them of recognition of their marriages in other states.
This injury is the direct result of the marriage amendment contained in Alaska State
Constitution Article I, 25 and related statutes. If this court strikes down the marriage
laws, the injury will be redressed, because Defendants will no longer be permitted to
enforce the laws that deprive Plaintiffs of the right to marry and of recognition of their
out of state marriages. Thus, Plaintiffs have standing to bring their claims.
193

191
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
192
42 U.S.C. 1983.
193
Id.


Plaintiffs claims are ripe because all ten plaintiffs have experienced and
are experiencing ongoing injuries stemming from the prohibition of marriage between
same sex couples or recognition of their out of state marriages pursuant to Alaskas
marriage laws and meet the requirements of the United States Supreme Courts two-part
test for assessing ripeness challenges that is often applied to constitutional challenges to
federal and state statutes: [t]he problem is best seen in a twofold aspect, requiring us to
evaluate both the fitness of the issues for judicial decision and the hardship to the parties
of withholding court consideration.
194

Plaintiffs claims do not present a non-justiciable political question and
this court should grant Plaintiffs summary judgment on Defendants affirmative
defense. The justiciability of a case depends on it presenting legal questions, as opposed
to political questions. The instant case does not display any of the characteristics of a
non-justiciable political question.
195
Defendants have not and cannot demonstrate that
the United States Constitution commits the issues raised by this lawsuit to a different
branch of government than the judiciary
Plaintiffs claims are not barred by the Tenth Amendment of the United
States Constitution. The Tenth Amendment provides: [t]he powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people. Here, the States ability to define marriage is

194
Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967).
195
Baker v. Carr, 369 US 186, 227, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).



limited by the United States Constitutions requirements of equal protection and due
process, as argued in this motion.
Defendants also assert, unavailingly, that the Eleventh Amendment to the
United States Constitution bars this action. The Eleventh Amendment to the United
States Constitution provides: [t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State. This affirmative defense is frivolous and should be rejected as
completely lacking merit. Plaintiffs brought this action pursuant to 42 U.S. Code
1983,
196
which is a statutory exception to the Eleventh Amendments provision of
statutory immunity to the states for claims of constitutional violation and the fact that
such suits are permitted has been a settled matter of law since 1908 with the United
States Supreme Courts decision in Ex Parte Young.
197

Defendants affirmative defenses lack merit and this court should grant
summary judgment to Plaintiffs.

196
42 U.S.C 1983; see also Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714
(1908) (suits against the states permitted suits in federal courts against officials acting on
behalf of states of the union to proceed despite the States sovereign immunity, when the
State acted unconstitutionally).
197
209 U.S. 123.


CONCLUSION
Summary judgment is appropriate where there is no genuine issue as to
any material fact and [ ] the moving party is entitled to a judgment as a matter of law.
198

Here, there are no material facts in dispute, and Plaintiffs are entitled to summary
judgment as a matter of law on their constitutional claims. Alaskas bans on the marriage
of same-sex couples, as well as its bans on the recognition of existing marriages of same-
sex couples, must be found unconstitutional.
This motion is supported by Attachment 1 and Declarations of Plaintiffs.
RESPECTFULLY SUBMITTED this 29TH day of August, 2014 at Anchorage,
Alaska.
By:
____________/s/____________
Allison Mendel #8310136
1215 W 8th Ave
Anchorage, AK 99501
(907) 279-5001

Heather Gardner #0111079
1425 Broadway #463
Seattle, Washington 98122
Telephone: (907) 375-8776

Caitlin Shortell #0405027
310 K Street Suite 200
Anchorage, AK 99501
Telephone: (907) 272-8

198
Anderson, 477 U.S. at 247; see also Fed. R. Civ. P. 56(a).

Allison Mendel AK Bar #8310136
1215 W. 8
th
Ave.
Anchorage, AK 99501
(907) 279-5001
(907) 279-5437
Amendel@mendelandassociates.com
Heather Gardner AK Bar #0111079
Caitlin Shortell AK Bar #0405027
Attorneys for Matthew Hamby, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

MATTHEW HAMBY and CHRISTOPHER
SHELDEN, a married couple, CHRISTINA
LABORDE and SUSAN TOW, a married
couple, SEAN EGAN and DAVID
ROBINSON, a married couple, TRACEY
WIESE and KATRINA CORTEZ, a married
couple, and COURTNEY LAMB and
STEPHANIE PEARSON, unmarried
persons,

Plaintiffs,

vs.

SEAN C. PARNELL, in his official capacity
as Governor of Alaska, MICHAEL
GERAGHTY, in his official capacity as
Attorney General of the State of Alaska,
WILLIAM J. STREUR, in his official
capacity as Commissioner of the State of
Alaska, Department of Health and Social
Services, and PHILLIP MITCHELL, in his
official capacity as State Registrar and
Licensing Officer, Alaska Bureau of Vital
Statistics,

Defendants.

)
)
)

PROPOSED ORDER GRANTING
PLAINTIFFS RULE 56 MOTION
FOR SUMMARY JUDGMENT

Case 3:14-cv-00089-TMB Document 20-1 Filed 08/29/14 Page 1 of 2

PROPOSED ORDER GRANTING PLAINTIFFS RULE 56
MOTION FOR SUMMARY JUDGMENT

1. The Court having considered Plaintiffs motion for summary
judgment and supporting documents attached thereto, and the Defendants
opposition thereto, hereby GRANTS plaintiffs motion. There are no issues of
material fact, and Plaintiffs are entitled to judgment on all claims.

_____________________ _____________________________
Dated The Honorable Timothy M. Burgess
U.S. District Court Justice

Case 3:14-cv-00089-TMB Document 20-1 Filed 08/29/14 Page 2 of 2

In The United States District Court For The District of Alaska

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