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Nelda Majors, et al., v. Michael K. Jeanes, et al.,
Case No: 2:14-cv-00518-J WS

LODGED: Proposed Defendants Cross-Motion for Summary Judgment and
Memorandum of Law in Support with Consolidated Response in Opposition to
Plaintiffs Motion for Summary Judgment Attached
Case 2:14-cv-00518-JWS Document 77 Filed 09/16/14 Page 1 of 44

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Thomas C. Horne
Attorney General

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

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

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

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Nelda Majors, et al.,
Plaintiffs,
v.
Michael K. J eanes, in his official capacity
as Clerk of the Superior Court of
Maricopa County, Arizona, et al.,
Defendants.
Case No: 2:14-cv-00518-J WS
DEFENDANTS CROSS-MOTION
FOR SUMMARY JUDGMENT AND
MEMORANDUM OF LAW IN
SUPPORT WITH CONSOLIDATED
RESPONSE IN OPPOSITION TO
PLAINTIFFS MOTION FOR
SUMMARY JUDGMENT


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Table of Contents
Table of Authorities ............................................................................................................ ii
Introduction ........................................................................................................................ 1
Argument ............................................................................................................................ 2
I. The Supreme Courts Baker Decision Forecloses Plaintiffs Claims. .................... 2
II. The Fourteenth Amendment Does Not Forbid Arizona from Maintaining its
Man-Woman Marriage Definition. ......................................................................... 4
A. Rational-Basis Review Applies to Plaintiffs Claims. ................................. 4
1. SmithKline Does Not Require Heightened Scrutiny in this
Case. .................................................................................................. 4
2. Arizonas Man-Woman Marriage Definition Does Not
Impermissibly Discriminate Based on Sex. ...................................... 8
Infringe Fundamental Rights. ......................................................... 10
4. Arizonas Out-of-State-Marriage-Recognition Policy Is Not
Subject to Heightened Scrutiny. ...................................................... 14
B. The Man-Woman Marriage Definition Satisfies Constitutional
Review. ....................................................................................................... 16
1. Arizonas Man-Woman Marriage Definition Furthers the
States Compelling Interest in Connecting Children to Both
Their Biological Mother and Their Biological Father. ................... 17
2. Arizonas Man-Woman Marriage Definition Avoids the
Long-Term Adverse Consequences that the State Could
Logically Project Would Accompany the Redefinition of
Marriage. ......................................................................................... 22
3. The Challenged Marriage Laws Protect the Peoples Right to
Define Marriage for Their Community. .......................................... 27
4. Plaintiffs Attempts to Impugn the Purposes for Arizonas
Man-Woman Marriage Definition Are Unavailing. ....................... 28
III. If the Court Grants Plaintiffs Motion and Enjoins the States Man-Woman
Marriage Definition, the Court Should Stay Its Ruling Pending Appeal. ............. 30
Conclusion ........................................................................................................................ 31


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Table of Authorities
Cases:
Adoptive Couple v. Baby Girl,
133 S. Ct. 2552 (2013) .............................................................................17, 18, 19
Andersen v. King County,
138 P.3d 963 (Wash. 2006) ................................................................. 9, 14, 20, 21
Baehr v. Lewin,
852 P.2d 44 (Haw. 1993)..................................................................................9, 13
Baker v. General Motors Corp.,
522 U.S. 222 (1998) .............................................................................................15
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971) .............................................................. 2, 9, 13, 21
Baker v. Nelson,
409 U.S. 810 (1972) .......................................................................................... 2, 3
Baker v. State,
744 A.2d 864 (Vt. 1999) ........................................................................................9
Bostic v. Schaefer,
No. 14-1167, 2014 WL 3702493 (4th Cir. J uly 28, 2014) ...................................13
Bowen v. Gilliard,
483 U.S. 587 (1987) .......................................................................................17, 18
Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8th Cir. 2006) ................................................................. 5, 7, 16, 21
City of Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432 (1985) .....................................................................................7, 8, 29
City of Cuyahoga Falls, Ohio v. Buckeye Community Hope Foundation,
538 U.S. 188 (2003) ...............................................................................................6
Coalition for Economic Equity v. Wilson,
122 F.3d 718 (9th Cir. 1997) ................................................................................30
Conaway v. Deane,
932 A.2d 571 (Md. 2007) ...........................................................................9, 13, 21

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Cook v. Cook,
104 P.3d 857 (Ariz. Ct. App. 2005) .....................................................................15
Cook v. Gates,
528 F.3d 42 (1st Cir. 2008) ....................................................................................5
Craig v. Boren,
429 U.S. 190 (1976) ...............................................................................................8
Dandridge v. Williams,
397 U.S. 471 (1970) .............................................................................................16
District Attorneys Office for Third Judicial District v. Osborne,
557 U.S. 52 (2009) ...............................................................................................11
Evans v. Utah,
No. 2:14CV55DAK, 2014 WL 2048343 (D. Utah May 19, 2014) ................30, 31
FCC v. Beach Communications, Inc.,
508 U.S. 307 (1993) .............................................................................................16
Forsythe v. Paschal,
271 P. 865 (Ariz. 1928) ..........................................................................................1
Frontiero v. Richardson,
411 U.S. 677 (1973) ...............................................................................................8
Goodridge v. Department of Public Health,
798 N.E.2d 941 (Mass. 2003) ..................................................................10, 11, 25
Grutter v. Bollinger,
539 U.S. 306 (2003) .............................................................................................22
Heller v. Doe,
509 U.S. 312 (1993) .......................................................................................16, 21
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) ..................................................................... 7, 9, 14, 21
Hicks v. Miranda,
422 U.S. 332 (1975) ...............................................................................................3
Humane Society of U.S. v. Gutierrez,
558 F.3d 896 (9th Cir. 2009) ................................................................................30

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Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) ...........................................................20, 21
Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004) ..................................................................................5
Johnson v. Robison,
415 U.S. 361 (1974) .................................................................................19, 20, 21
Jones v. Hallahan,
501 S.W.2d 588 (Ky. 1973) .................................................................................13
Kahawaiolaa v. Norton,
386 F.3d 1271 (9th Cir. 2004) ................................................................................4
Lawrence v. Texas,
539 U.S. 558 (2003) .....................................................................................3, 4, 14
Lewis v. Harris,
908 A.2d 196 (N.J . 2006) .............................................................................. 13, 23
Lofton v. Secretary of the Department of Children & Family Services,
358 F.3d 804 (11th Cir. 2004) ..........................................................................5, 19
Loving v. Virginia,
388 U.S. 1 (1967) ................................................................................ 9, 10, 13, 16
Mandel v. Bradley,
432 U.S. 173 (1977). ..............................................................................................3
In re Marriage Cases,
183 P.3d 384 (Cal. 2008)........................................................................................9
In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. Ct. App. 2010) ......................................................... 14 , 21
Michael M. v. Superior Court,
450 U.S. 464 (1981) .......................................................................................21, 22
Mississippi University for Women v. Hogan,
458 U.S. 718 (1982) ...............................................................................................8
Morrison v. Sadler,
821 N.E.2d 15 (Ind. Ct. App. 2005) .........................................................13, 20, 21

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In re Mortensons Estate,
316 P.2d 1106 (Ariz. 1957) ............................................................................14, 15
Murphy v. Ramsey,
114 U.S. 15 (1885) ...............................................................................................12
Nguyen v. INS,
533 U.S. 53 (2001) ...............................................................................................21
Parham v. J.R.,
442 U.S. 584 (1979) .......................................................................................18, 19
Personal Administrator of Massachusetts v. Feeney,
442 U.S. 256 (1979) ...............................................................................................6
Plyler v. Doe,
457 U.S. 202 (1982) .............................................................................................29
Price-Cornelison v. Brooks,
524 F.3d 1103 (10th Cir. 2008) ..............................................................................5
Reed v. Reed,
404 U.S. 71 (1971) .................................................................................................8
Reno v. Flores,
507 U.S. 292 (1993) .............................................................................................11
Robicheaux v. Caldwell,
Nos. 13-5090, 14-97, 14-327, 2014 WL 4347099
(E.D. La. Sept. 3, 2014) ..................................................................................13, 21
Rodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477 (1989) ...............................................................................................3
Romer v. Evans,
517 U.S. 620 (1996) .......................................................................................3, 4, 5
Rostker v. Goldberg,
453 U.S. 57 (1981) ...............................................................................................21
Santosky v. Kramer,
455 U.S. 745 (1982) .................................................................................18, 19, 24
Scarbrough v. Morgan County Board of Education,
470 F.3d 250 (6th Cir. 2006) ..................................................................................5

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Schuette v. BAMN,
134 S. Ct. 1623 (2014) ...............................................................................2, 22, 28
Singer v. Hara,
522 P.2d 1187 (Wash. Ct. App. 1974) .............................................................9, 21
Smith v. Organization of Foster Families for Equality & Reform,
431 U.S. 816 (1977) .............................................................................................17
SmithKline Beecham Corp. v. Abbott Laboratories,
740 F.3d 471 (9th Cir. 2014) ..........................................................................4, 6, 8
Soos v. Superior Court,
897 P.2d 1356 (Ariz. Ct. App. 1994) ...................................................................17
Standhardt v. Superior Court,
77 P.3d 451 (Ariz. Ct. App. 2003) ...........................................................13, 20, 21
Steffan v. Perry,
41 F.3d 677 (D.C. Cir. 1994) .................................................................................5
Strauss v. Horton,
207 P.3d 48 (Cal. 2009)..........................................................................................9
Thomasson v. Perry,
80 F.3d 915 (4th Cir. 1996) ....................................................................................5
Troxel v. Granville,
530 U.S. 57 (2000) ...............................................................................................18
Turner Broadcasting System, Inc. v. FCC,
512 U.S. 622 (1994) .............................................................................................22
Turner Broadcasting System, Inc. v. FCC,
520 U.S. 180 (1997) .............................................................................................22
Turner v. Safley,
482 U.S. 78 (1987) ...............................................................................................13
United States v. Tenney,
11 P. 472 (1886) .....................................................................................................1
United States v. Virginia,
518 U.S. 515 (1996) .............................................................................. 8, 9, 10, 16

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United States v. Windsor,
133 S. Ct. 2675 (2013) ................................................................................. passim
Vacco v. Quill,
521 U.S. 793 (1997) .............................................................................................20
Vance v. Bradley,
440 U.S. 93 (1979) .........................................................................................20, 21
Washington v. Glucksberg,
521 U.S. 702 (1997) .................................................................................10, 11, 14
Washington v. Seattle School District No. 1,
458 U.S. 457 (1982) ...............................................................................................6
Woodward v. United States,
871 F.2d 1068 (Fed. Cir. 1989) ..............................................................................5
Wright v. Lane County District Court,
647 F.2d 940 (9th Cir. 1981) ..................................................................................3
Zablocki v. Redhail,
434 U.S. 374 (1978) .......................................................................................12, 13
Constitutional Provisions:
Arizona Constitutional Article XXX, 1 ..........................................................................5
Statutes:
Arizona Revised Statute 25-101 ...................................................................................15
Rules:
Federal Rule of Civil Procedure 56 ...................................................................................1
Local Rule 56.1 .................................................................................................................1
Orders:
Herbert v. Kitchen,
134 S. Ct. 893 (2014) ..........................................................................................30

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Latta v. Otter,
No. 14-35420 (9th Cir. May 20, 2014) ................................................................30
McQuigg v. Bostic,
No. 14A196, 2014 WL 4096232 (U.S. Aug. 20, 2014) .......................................30
Other Authorities:
1 William Blackstone, Commentaries *435 ..............................................................18, 19
52 American J urisprudence 2d Marriage 66 (2014) ....................................................14
J essica Bennett, Polyamory: The Next Sexual Revolution?, Newsweek,
J ul. 28, 2009 ...........................................................................................................5
J urisdictional Statement, Baker v. Nelson, 409 U.S. 810 (1972) (No. 71-1027) ......... 2, 3
Blacks Law Dictionary (8th ed. 2004) ...........................................................................12
Robert P. George et al., What is Marriage? (2012) ..................................... 23, 24, 25, 26
Norval D. Glenn, The Struggle For Same-Sex Marriage, 41 Socy 25 (2004) .........23, 24
William J . Goode, World Changes in Divorce Patterns (1993) .....................................27
Loren D. Marks, Same-sex Parenting and Childrens Outcomes: A Closer
Examination of the American Psychological Associations Brief on
Lesbian and Gay Parenting, 41 Social Science Research 735 (2012) .................19
J oseph Raz, Ethics in the Public Domain (1994) ............................................................23
Restatement (Second) of Conflict of Laws 283 (1971) ................................................14
J ulien O. Teitler et al., Effects of Welfare Participation on Marriage,
71 J . Marriage & Fam. 878 (2009) .......................................................................25
Transcript of Oral Argument, Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) (No. 12-144) ...................................................................12
United Nations Convention on the Rights of the Child, G.A. Res. 44/25,
art. 7, 1 (Nov. 20, 1989) ....................................................................................17
J udith S. Wallerstein et al., The Unexpected Legacy of Divorce: The 25
Year Landmark Study (2000) ...............................................................................27
Noah Webster, An American Dictionary of the English Language (1st ed. 1828) .........12

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Witherspoon Institute, Marriage and the Public Good: Ten
Principles (2008) ......................................................................................23, 24, 25

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Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56.1, Defendants
move the Court for an order granting summary judgment in their favor and dismissing all
claims raised in Plaintiffs Second Amended Complaint (Doc. No. 50). Alternatively, if
the Court grants summary judgment in Plaintiffs favor, Defendants request that the
Court stay its judgment pending appeal.
Introduction
By history and tradition the definition and regulation of marriage . . . has been
treated as being within the authority and realm of the separate States. United States v.
Windsor, 133 S. Ct. 2675, 268990 (2013). Since its days as a territory, Arizona (together
with the rest of Western Civilization) has defined marriage as a relationship between a
man and woman. United States v. Tenney, 11 P. 472, 477 (1886); see also Forsythe v.
Paschal, 271 P. 865, 866 (Ariz. 1928) (Marriage differs from ordinary contracts, in that
it can only exist where one man and one woman are legally united for life, whereas
ordinary civil contracts may exist between two or more of either or both sexes for any
stipulated time.). Indeed, in Arizona, marriage between a man and a woman has been
essential to the very definition of that term and to its role and function throughout . . .
history. Windsor, 133 S. Ct. at 2689.
As a public institution of utmost importance in Arizona, marriages role and
function is to channel the presumptive procreative potential of man-woman relationships
into committed unions in order to link children to both their mother and their father.
Arizonas principal interest in the marriage status is the protection of . . . minor children.
The whole history of our legislation in Arizona, as well as elsewhere, shows this to be
true. Forsythe, 271 P. at 867. Thus, this State regulates man-woman relationships
through the institution of marriage because those relationships are biologically and
sociologically unique and because they implicate state interests that no other relationships
do.
Recently, the People throughout the various States have begun an earnest public
discussion about the meaning, purpose, and future of marriage. Some now seek to

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redefine marriage from a gendered to a genderless institution, while many others,
including the People of Arizona, legitimately believe that such a change would obscure
marriages animating purpose and undermine its social utility.
So far, the States have reached differing decisions on this important question. Yet
Plaintiffs, discontented with the policy decision of Arizonans, argue that the public
debate about the meaning, purpose, and future of marriage was and is meaningless. They
claim that the issue was taken out of the Peoples hands when the Fourteenth Amendment
was ratified, that the Constitution itself defines marriage as a genderless institution, and
that the People have no say in deciding the weighty social, philosophical, political, and
legal issues that this public debate implicates.
But Plaintiffs are mistaken. The Constitution has not removed this question from
the People. It has not settled this critical social-policy issue entrusted to the States. And
[i]t is demeaning to the democratic process to presume, as Plaintiffs do, that the voters
are not capable of deciding an issue of this sensitivity on decent and rational grounds.
Schuette v. BAMN, 134 S. Ct. 1623, 1637 (2014). This Court should thus uphold the
Peoples decision to preserve marriage as a man-woman union.
Argument
I. The Supreme Courts Baker Decision Forecloses Plaintiffs Claims.
In Baker v. Nelson, 409 U.S. 810 (1972), the Supreme Court decided the precise
legal claims presented here. The petitioners in Baker appealed the Minnesota Supreme
Courts decision holding that its States marriage laws, which understood marriage as a
man-woman union, did not violate the Fourteenth Amendments Due Process or Equal
Protection Clause. Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn. 1971). In the
jurisdictional statement that they filed with the United States Supreme Court, the Baker
petitioners contended that Minnesotas man-woman marriage definition deprive[d]
[them] of their liberty to marry and of their property without due process of law under the
Fourteenth Amendment and that those laws violate[d] their rights under the equal
protection clause of the Fourteenth Amendment. J urisdictional Statement at 3, Baker v.

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Nelson, 409 U.S. 810 (1972) (No. 71-1027) (Dfs. Ex. 66). The Supreme Court dismissed
the appeal for want of a substantial federal question. Baker, 409 U.S. at 810.
Baker establishes that neither the Due Process Clause nor the Equal Protection
Clause bars States from maintaining marriage as a man-woman union because a Supreme
Court summary dismissal is a ruling on the merits and lower courts are not free to
disregard [it]. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Summary dismissals thus
prevent lower courts from coming to opposite conclusions on the precise issues
presented in those cases. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). The
precedential value of a dismissal for want of a substantial federal question extends
beyond the facts of the particular case to all similar cases. Wright v. Lane Cnty. Dist.
Court, 647 F.2d 940, 941 (9th Cir. 1981) (per curiam).
Plaintiffs fail to even mention, much less distinguish, this controlling precedent.
Although some courts (not including the Ninth Circuit) have wrongly concluded that
Bakers binding force has been displaced by doctrinal developments, whatever might
be the proper interpretation of the doctrinal developments dicta, which the Supreme
Court stated (though did not apply) only once, see Hicks, 422 U.S. at 344, it cannot mean
that a lower court is free to depart from directly on-point precedent that has never been
questioned by the Supreme Court itself. As the Supreme Court has made clear, [i]f a
precedent of th[e] Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the [lower court] should follow the case which
directly controls, leaving to [the Supreme] Court the prerogative of overruling its own
decisions. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989).
In its opinion granting a temporary restraining order in this case, this Court
indicated that Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558
(2003), and Windsor have shown that Baker was wrongly decided. See Order Granting
Temporary Restraining Order at 4 (ECF No. 75). But those three cases cannot bear the
weight of overruling Baker. First, Romer involved a law that was unprecedented in our

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jurisprudence and foreign to our constitutional tradition. 517 U.S. at 633. Here,
however, the definition of marriage that the People of Arizona have affirmed is neither
unprecedented in our laws nor unknown in our constitutional republic. Second, Lawrence
struck down a criminal statute that prohibited the most private human conduct, sexual
behavior, . . . in the most private of places, the home. 539 U.S. at 567. Yet the Court
explicitly stated that the case did not involve, and thus the Court did not decide,
whether the government must give formal recognition to any relationship that
homosexual persons seek to enter. Id. at 578. It therefore cannot be true that Lawrence
reversed Baker. Third, Windsor emphasized that its holding and opinion are limited
to the unique situation where the federal government declined to recognize same-sex
marriages made lawful by the State. 133 S. Ct. at 2695-96. Thus, neither did Windsor
address the separate question that the Court resolved in Baker.
II. The Fourteenth Amendment Does Not Forbid Arizona from Maintaining its
Man-Woman Marriage Definition.
Separate from Bakers binding force, Plaintiffs claims lack merit because the
Fourteenth Amendment does not forbid Arizonas man-woman marriage definition.
A. Rational-Basis Review Applies to Plaintiffs Claims.
Rational-basis review applies to Plaintiffs claims because Arizonas man-woman
marriage definition does not infringe a fundamental right or impermissibly discriminate
based on a suspect or quasi-suspect classification. See Kahawaiolaa v. Norton, 386 F.3d
1271, 1277-78 (9th Cir. 2004).
1. SmithKline Does Not Require Heightened Scrutiny in this Case.
Plaintiffs mistakenly assert that the Ninth Circuits recent decision in SmithKline
Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014), requires this Court
to apply heightened scrutiny in this case. See Pls. Mem. in Supp. Mot. for Summ. J . at 28
(ECF No. 59) (Pls. Mem.). This argument fails for four reasons.
First, by its own terms, SmithKline requires heightened scrutiny only when state
action discriminates on the basis of sexual orientation. 740 F.3d at 483. But Arizonas

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man-woman definition of marriage does not. That definition distinguishes between man-
woman couples and all other relationships (including same-sex couples and polyamorous
relationships). It does not explicitly classify persons based on their sexual orientation.
1

Plaintiffs baldly allege sexual-orientation discrimination without pointing to any
actual language or classification within the challenged laws. Pls. Mem. at 27.
2
This is not
surprising because Arizonas marriage laws are facially neutral with respect to sexual
orientation. Moreover, Plaintiffs claim that the States man-woman marriage laws do[]
not reach anyone other than same-sex couples, Pls. Mem. at 28, is also misplaced. For
when the marriage laws recognize only the union of one man and one woman as a
marriage, Ariz. Const. Art. XXX, 1, they surely exclude all polyamorous relationships
throughout the State.
3

1
Plaintiffs assertion that federal courts en masse have declared sexual orientation a
suspect or quasi-suspect classification for all purposes is misleading. See Pls. Mem. at 28
n.11. The majority of federal appellate courts to address that issue have concluded that
sexual orientation is not a suspect classification. See, e.g., Cook v. Gates, 528 F.3d 42, 61
(1st Cir. 2008); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (en banc); Johnson
v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Scarbrough v. Morgan Cnty. Bd. of Educ.,
470 F.3d 250, 261 (6th Cir. 2006); Citizens for Equal Prot. v. Bruning, 455 F.3d 859,
866-67 (8th Cir. 2006); Price-Cornelison v. Brooks, 524 F.3d 1103, 1114 (10th Cir.
2008); Lofton v. Secy of the Dept of Children & Family Servs., 358 F.3d 804, 818 (11th
Cir. 2004); Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en banc); Woodward
v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); see also Romer, 517 U.S. at 631-
35 (applying rational-basis review to classification based on sexual orientation).
2
This Court seemingly adopted Plaintiffs argument when it stated that the reason why
couples such as [Plaintiffs] may not marry is precisely because of their sexual
orientation. Order Granting Temporary Restraining Order at 6. For the reasons
explained above, this Courts preliminary assessment of this argument was erroneous.
3
Polygamy, a social arrangement where one man may marry multiple wives, is not the
concept referred to here. Instead, the reference is to polyamory, a romantic group
relationship involving whatever gender composition the participants find agreeable.
Researchers . . . estimate that openly polyamorous families in the United States number
more than half a million[.] J essica Bennett, Polyamory: The Next Sexual Revolution?,
Newsweek, J ul. 28, 2009, available at http://www.newsweek.com/polyamory-next-
sexual-revolution-82053.

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Second, the state action at issue in SmithKline intended to discriminate against
gays and lesbians. 740 F.3d at 477-78 (finding intentional discrimination). Here,
however, Arizonas man-woman definition of marriage, which predates the States
inception, see DSOF 5, is not born of any intent to discriminate against gays and
lesbians. Not a shred of evidence suggests that Arizonans recognized man-woman
marriage more than a hundred years ago for the purpose of disadvantaging gays and
lesbians. By focusing their attention only on individual statements relating to the laws
enacted in the last two decades (which did not change the States definition of marriage),
Plaintiffs miss the mark, for even if the State had not approved any of those enactments,
marriage in this State would nevertheless be a man-woman union. See DSOF 5-6.
Moreover, Plaintiffs argument ignores, as mentioned above, that the States man-woman
marriage definition excludes polyamorous relationships just as it excludes same-sex
relationships.
When issuing the temporary-restraining order in this case, this Court indicated that
so long as the challenged laws do discriminate, inten[t] to discriminate is not a
relevant consideration. See Order Granting Temporary Restraining Order at 6. Yet intent
to discriminate is an essential element of Plaintiffs equal-protection claim. [P]urposeful
discriminationnot disparate impactis the condition that offends the Constitution.
Pers. Admr of Mass. v. Feeney, 442 U.S. 256, 274 (1979) (quotation marks omitted).
Absent a showing of purposeful discrimination, uneven effects upon particular groups
within a class are ordinarily of no constitutional concern. Id. at 272; see also City of
Cuyahoga Falls, Ohio v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003) (We
have made clear that proof of . . . discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause. (internal quotation marks and alterations
omitted)); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 484-85 (1982) ([W]hen
facially neutral legislation is subjected to equal protection attack, an inquiry into intent is
necessary.).

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Third, because same-sex couples have distinguishing characteristics relevant to
interests the State has the authority to implement, constitutional analysis requires only
a rational means to serve a legitimate end. City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 441-42 (1985). Arizonas marital definition is based on an undeniable
biological difference between man-woman couples and same-sex couplesnamely, the
natural capacity to create children and to provide those children with both biological
parents. Because this biological difference relates directly to societys interests in
regulating marriage, see DSOF 1-4, the States definition of marriage is subject only to
rational-basis review. Cleburne, 473 U.S. at 441-42. Using this analysis, New Yorks
highest court conclude[d] that rational basis scrutiny is appropriate when review[ing]
legislation governing marriage and family relationships because [a] persons preference
for the sort of sexual activity that cannot lead to the birth of children is relevant to the
States interest in fostering relationships that will serve children best. Hernandez v.
Robles, 855 N.E.2d 1, 11 (N.Y. 2006); see also Bruning, 455 F.3d at 866-67. That court
applied rational-basis review to the man-woman marriage laws while acknowledging that
sexual-orientation discrimination might require heightened scrutiny outside the context
of marriage and family relationships. Hernandez, 855 N.E.2d at 11.
4

This Court previously rejected this argument as circular. See Order Granting
Temporary Restraining Order at 7. Notwithstanding that belief, Supreme Court precedent
compels this analysis. As the Court has stated:
[W]here individuals in the group affected by a law have distinguishing
characteristics relevant to interests the State has the authority to implement,
the courts have been very reluctant, as they should be in our federal system
and with our respect for the separation of powers, to closely scrutinize
legislative choices as to whether, how, and to what extent those interests

4
Plaintiffs claim that they are similarly situated to man-woman married couples for
all legally relevant purposes, Pls. Mem. at 27, is not supportable. In making that claim,
Plaintiffs ignore the States overriding purpose of marriageto channel the procreative
potential of man-woman couples into state-regulated relationships in order to increase the
chances that children will be raised by both their mother and their father. See infra
Section (II)(B)(1)(a).

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should be pursued. In such cases, the Equal Protection Clause requires only
a rational means to serve a legitimate end.
Cleburne, 473 U.S. at 441-42. Because same-sex couples have distinguishing
characteristics relevant to interests the State has the authority to implement, and because
those distinguishing characteristics relate directly to the States overriding interest in
marriage, governing precedent requires this Court to apply rational-basis review.
Fourth, SmithKline premised its new equal-protection standard entirely on
Windsor. See 740 F.3d at 480 (noting that Windsor is dispositive of the question of the
appropriate level of scrutiny). Thus, SmithKline can reach no further than Windsor in
demanding heightened scrutiny. Windsor, however, did not categorically establish that all
laws that disparately impact same-sex couples warrant heightened scrutiny. Rather, it
premised its careful consideration analysis on its conclusion that the federal
government had unusually depart[ed] from [its] history and tradition of reliance on state
law to define marriage. 133 S. Ct. at 2692. Because Arizonas man-woman marital
definition neither departs from history nor exhibits any other unusual characteristic,
Windsors predicate for applying careful consideration analysis is absent here.
Impermissibly Discriminate Based on Sex.
The Supreme Courts equal-protection cases have found impermissible sex
discrimination only when a law treats members of one sex more favorably than members
of the other sex. See, e.g., United States v. Virginia, 518 U.S. 515, 519 (1996) (excluding
women from military college); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 733
(1982) (excluding men from attending nursing school); Craig v. Boren, 429 U.S. 190,
191-92 (1976) (allowing women to buy beer at a younger age than men); Frontiero v.
Richardson, 411 U.S. 677, 678-79 (1973) (imposing a higher burden on women than men
to establish spousal dependency); Reed v. Reed, 404 U.S. 71, 71-74 (1971) (affording an
automatic preference for men over women when administering estates). Thus, the proper
question when assessing a constitutional sex-discrimination claim is whether men and

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women are treated differently or subject to special denigration because of their sex. See
Virginia, 518 U.S. at 532-34. If the rule were otherwise, the government would create a
constitutional crisis each time it offered sex-specific restrooms, locker rooms, living
facilities, schools, or sports teams. But acknowledging the biological distinction between
men and women is not discrimination when both men and women have the same benefits
and restrictions. Id.
Because man-woman marriage laws do not disadvantage either sex, Plaintiffs
sex-discrimination argument falls short.
5
Even though Plaintiffs sex-discrimination
argument has been raised in the many similar cases litigated throughout the country, no
appellate court, state or federal, except for a two-justice plurality in Baehr v. Lewin, 852
P.2d 44, 59-63 (Haw. 1993), has adopted it. See, e.g., In re Marriage Cases, 183 P.3d
384, 439 (Cal. 2008), superseded by constitutional amendment as noted in Strauss v.
Horton, 207 P.3d 48, 59 (Cal. 2009); Conaway v. Deane, 932 A.2d 571, 598-99 (Md.
2007); Baker, 191 N.W.2d at 187; Hernandez, 855 N.E.2d at 10-11; Baker v. State, 744
A.2d 864, 880 n.13 (Vt. 1999); Andersen v. King Cnty., 138 P.3d 963, 988 (Wash. 2006)
(plurality); Singer v. Hara, 522 P.2d 1187, 1192 (Wash. Ct. App. 1974).
Plaintiffs reliance on Loving v. Virginia, 388 U.S. 1 (1967), a race-discrimination
case, is misplaced. See Pls. Mem. at 30 n.12. Contrary to Plaintiffs claim, the Loving
Court concluded that Virginias miscegenation law was motivated by racial
discriminationthe invidious desire, as the Court said, to maintain White Supremacy.
388 U.S. at 7, 11. Here, however, Plaintiffs have cited no evidence, nor could they,
establishing that Arizonas man-woman marriage definition was adopted to degrade men
or to disadvantage women. While Loving observed that equal application does not
immunize a racially discriminatory law from strict scrutiny, id. at 9, the Supreme Court
has never extended that principle to sex discrimination. Rather, the Court has declined to

5
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marry women. That would constitute sex discrimination.

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equat[e] gender classifications . . . to classifications based on race and has carefully
inspected under heightened scrutiny only official action that closes a door or denies
opportunity to women (or to men). Virginia, 518 U.S. at 532 (emphasis added). So for
this Court to find sex discrimination here would be an unprecedented expansion of the
Supreme Courts jurisprudence on that issue.
Moreover, Plaintiffs discussion of sex stereotypes is wholly unsupported. See
Pls. Mem. at 30. By seeking to channel the procreative potential of man-woman
relationships into state-regulated marital unions, Arizona regulates based on biologynot
based on overbroad generalizations about the different talents, capacities, or
preferences of males and females. Pls. Mem. at 30 (quoting Virginia, 518 U.S. at 533).
The Constitution does not prohibit States from recognizing gender-based biological
differences. See Virginia, 518 U.S. at 533 (acknowledging that [t]he two sexes are not
fungible (citations and quotation marks omitted)).
3. Arizonas Man-Woman Marriage Definition Does Not Infringe
Fundamental Rights.
In Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme Court outlined
the analysis for ascertaining whether an asserted right is fundamental. Id. at 720-21. The
Court requires a careful description of the asserted fundamental liberty interest, id. at
721, and demands that the carefully described right must be objectively, deeply rooted
in this Nations history and tradition, id. at 720-21.
The carefully described right at issue here is the purported right to marry a person
of the same sex. The Nations history and tradition belie any assertion that such a right is
deeply rooted. As the Supreme Court recognized in Windsor, until recent years, many
citizens had not even considered the possibility that two persons of the same sex might
[enter] . . . [a] lawful marriage. For marriage between a man and a woman no doubt had
been . . . essential to the very definition of that term and to its role and function
throughout the history of civilization. 133 S. Ct. at 2689. Indeed, marriage between two
people of the same sex was unknown in this country before 2004, see Goodridge v. Dept

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of Pub. Health, 798 N.E.2d 941, 970 (Mass. 2003), and is recognized in only a minority
of States even now. Thus, [t]here is no long history of such a right, and [t]he mere
novelty of such a claim is reason enough to doubt that substantive due process sustains
it. Dist. Attorneys Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 72 (2009)
(quoting Reno v. Flores, 507 U.S. 292, 303 (1993)).
Plaintiffs attempt to generalize their claim to marry a person of the same sex as
one that falls under the right to marry established by the Supreme Court. Pls. Mem. at 19-
22. But that argument fails for at least three reasons.
First, the generalized right that Plaintiffs offerthe supposed fundamental right to
marry the partner of ones choice, Pls. Mem. at 19is too generic to satisfy
Glucksbergs directive that courts must carefully formulat[e] the interest at stake in
substantive-due-process cases. Glucksberg, 521 U.S. at 722. Plaintiffs ask the State to
license a relationship between two persons of the same sex as a marriage. But Plaintiffs
cannot offer any concrete examples of such a right in this Nations history or tradition
before 2004. Under Glucksberg, the analysis should end there.
Plaintiffs error here is similar to the plaintiffs error in Glucksberg. There, the
plaintiffs attempted to cast their asserted liberty interest within already-established
substantive-due-process rights. Glucksberg, 521 U.S. at 723-24. The Court, however,
rejected that strained attempt to expand established fundamental rights. Instead,
Glucksberg required a precise and careful description of the alleged right, and it
looked for specific concrete examples showing that the right was deeply rooted in our
legal tradition. Id. at 722-24. This Court should similarly reject Plaintiffs attempt to
contort their asserted right into the established right to marry. Rather, this Court should
insist that Plaintiffs follow the standard that Glucksberg imposes.
Second, finding that the Constitution contains a fundamental right to marry the
partner of ones choice would threaten other well-established limitations on marriage. If
such an amorphous fundamental right exists, then every state restriction on marriage
including consanguinity and numerical restrictionsmust be subject to strict scrutiny.

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Yet in Zablocki v. Redhail, 434 U.S. 374, 386 (1978), the Supreme Court disclaimed the
notion that the fundamental right to marry subject[s] to rigorous scrutiny every state
regulation which relates in any way to the incidents of or prerequisites for marriage. Id.
Expanding the fundamental right to marry beyond its historical scope would thus threaten
to turn on its head the plenary authority that States have exercised in the area of domestic
regulations since the Nations beginning. Windsor, 133 S. Ct. at 2691. Indeed, under
Plaintiffs theory, unless a State can satisfy the stringent requirements of strict scrutiny, it
must recognize all committed relationships (including polygamous, polyamorous, and
incestuous) as marriages. See Transcript of Oral Argument at 46-47, Hollingsworth v.
Perry, 133 S. Ct. 2652 (2013) (No. 12-144) (Sotomayor, J .) (wondering what State
restrictions could ever exist on marriage if courts adopt a broad fundamental right to
marry). But if States must recognize all relationships as marriages, their purpose for
having a marriage policy in the first placeto recognize and subsidize particular
relationships because of the societal interests that they servewould be eradicated. These
far-reaching effects of Plaintiffs fundamental-rights argument illustrate its foundational
flaws.
Third, the established right to marry has a discernible meaning, and Plaintiffs
cannot credibly claim that the word marry as used by the Supreme Court in its right-to-
marry cases referred to any relationship other than the union of a man and a woman.
Until a short decade ago, the word marry exclusively meant the union . . . of one man
and one woman. Murphy v. Ramsey, 114 U.S. 15, 45 (1885); see also Noah Webster, An
American Dictionary of the English Language (1st ed. 1828) (defining marriage as the
union of a man and woman); Blacks Law Dictionary 992 (8th ed. 2004) (defining
marriage as [t]he legal union of a couple as husband and wife). While Plaintiffs argue
that the constitutional right to marry must be defined by the attributes of the right itself,
Pls. Mem. at 20, they overlook that an essential attribute of the right has always included
its man-woman feature because the word itself was a gendered term. Indeed, as Windsor
recognized, marriage between a man and a woman no doubt had been thought of . . . as

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essential to the very definition of that term . . . throughout the history of civilization. 133
S. Ct. at 2689.
Moreover, the Supreme Courts right-to-marry casesLoving, Zablocki, and
Turner v. Safley, 482 U.S. 78 (1987)all involved one person marrying another person
of the opposite sex. And the Supreme Courts discussion of marriage in those cases
specifically, the repeated references to procreation (both implicit and explicit)plainly
demonstrates that the right to marry is the right to enter into a gendered relationship (the
only type of relationship capable of producing children). See Loving, 388 U.S. at 12
(discussing the link between marriage and our very existence and survival); Zablocki,
434 U.S. at 383-84 (same); id. at 384 (discussing the right to marry, establish a home
and bring up children (internal quotation marks omitted)); id. at 386 (discussing the
plaintiffs decision to marry and raise the child in a traditional family setting); Turner,
482 U.S. at 96 (discussing the link between marriage and consummat[ion] and the link
between marriage and the legitimation of children). It thus cannot be doubted that the
Courts right-to-marry cases understood the word marriage as referring to a man-
woman union. Plaintiffs, therefore, attempt to make the word marry mean something
that it could not have meant when the Supreme Court used it in the right-to-marry cases;
they, in short, engage in linguistic manipulation. Bostic v. Schaefer, No. 14-1167, 2014
WL 3702493, at *18 (4th Cir. J uly 28, 2014) (Niemeyer, J ., dissenting); see also
Robicheaux v. Caldwell, Nos. 13-5090, 14-97, 14-327, 2014 WL 4347099, at *9-10 (E.D.
La. Sept. 3, 2014).
In light of the foregoing, it is not surprising that the majority of appellate courts
that have faced this fundamental-right question, under a state constitution or the Federal
Constitution, have concluded that there is no fundamental right to marry a person of the
same sex. See, e.g., Standhardt v. Superior Court, 77 P.3d 451, 460 (Ariz. Ct. App.
2003); Baehr, 852 P.2d at 57; Morrison v. Sadler, 821 N.E.2d 15, 32-34 (Ind. Ct. App.
2005); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. 1973); Conaway, 932 A.2d at 624-
29; Baker, 191 N.W.2d at 186; Lewis v. Harris, 908 A.2d 196, 211 (N.J . 2006);

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Hernandez, 855 N.E.2d at 9-10; In re Marriage of J.B. & H.B., 326 S.W.3d 654, 675-76
(Tex. Ct. App. 2010); Andersen, 138 P.3d at 976-79.
6

4. Arizonas Out-of-State-Marriage-Recognition Policy Is Not
Subject to Heightened Scrutiny.
In attacking Plaintiffs out-of-state-marriage-recognition policy, Plaintiffs attempt
to invoke heightened scrutiny by arguing that they have a fundamental right to remain
married. Pls. Mem. at 22-24. Yet that argument lacks merit for all the reasons that
Plaintiffs fundamental-right-to-marry argument does. See supra Section (II)(A)(3).
Plaintiffs attempt to portray the States marriage recognition policy as inconsistent
with history and tradition; they specifically reference [t]he expectation that a marriage,
once entered into, will be respected throughout the land. Pls. Mem. at 22 n.8. But
Plaintiffs overlook the well-established rule that permits a State to decline to recognize an
out-of-state marriage if recognizing that marriage would be contrary to the public policy
of that state. 52 Am. J ur. 2d Marriage 66; see also Restatement (Second) of Conflict of
Laws 283 (1971) (A marriage which satisfies the requirements of the state where the
marriage was contracted will everywhere be recognized as valid unless it violates the
strong public policy of another state.).
It is thus not unusual or ahistorical for a State to decline to recognize a couples
out-of-state marriage. Comity and full-faith-and-credit principles have always permitted
Arizona, like other States, to decline to recognize [m]arriages performed outside the

6
Plaintiffs vaguely assert that Arizonas man-woman marriage definition violates
protected liberty interests in association, integrity, autonomy, and self-definition. Pls.
Mem. at 24-25 (capitalization and bolding omitted). Plaintiffs rely principally on
Lawrence for this claim. But Lawrencewhich struck down a criminal statute that
prohibited the most private human conduct, sexual behavior, . . . in the most private of
places, the home, 539 U.S. at 567explicitly stated that it did not involve, and thus
did not decide, whether the government must give formal recognition to any relationship
that homosexual persons seek to enter, id. at 578. Moreover, the Supreme Court has
rejected the idea that constitutional rights may be simply deduced from abstract concepts
of personal autonomy. Glucksberg, 521 U.S. at 725. Rather, those rights must be
grounded in this Nations history and constitutional traditions. Id.

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state which offend [its] strong public policy. In re Mortensons Estate, 316 P.2d 1106,
1108 (Ariz. 1957); see also Cook v. Cook, 104 P.3d 857, 860 (Ariz. Ct. App. 2005) (J ust
as enduring as the general rule, however, has been Arizonas exception to that rule;
namely, that the power to define a valid marriage is vested in this states legislature and
not in the legislature (or judiciary) of another state nor in the judiciary of this state.);
Baker v. Gen. Motors Corp., 522 U.S. 222, 232 (1998) (The Full Faith and Credit
Clause does not compel a state to substitute the statutes of other states for its own statutes
dealing with a subject matter concerning which it is competent to legislate. (internal
quotation marks omitted)).
Moreover, by declining to recognize Plaintiffs out-of-state marriage licenses, the
State has not treated them differently than any man-woman couple who sought to evade
Arizonas marriage law by marrying in another State. The State prohibits all persons
residing in this state from evad[ing] the laws of this state relating to marriage by going
to another state or country for solemnization of the marriage. Ariz. Rev. Stat. 25-
112(C); see also DSOF 11. Yet Plaintiffs declarations indicate that they violated this
statutory provision. DSOF 12. Plaintiffs are thus treated no differently than underage,
see Ariz. Rev. Stat. 25-102(A), or closely related man-woman couples, see Ariz. Rev.
Stat. 25-101(A), who reside in Arizona and similarly seek to evade the States marriage
laws.
Finally, the implications of Plaintiffs right to remain married arguments are
untenable. Requiring a State to recognize a relationship as a marriage simply because
another State does would effectively nationalize the domestic-relations policy of the most
inventive State. That would not only contravene the well-established comity and full-
faith-and-credit principles discussed above, it would also conflict with Windsors
acknowledgment that the Constitution permits variation between States domestic-
relations policies concerning which couples may marry. See 133 S. Ct. at 2691 (noting
that States may differ on permissible degree[s] of consanguinity and minimum age[s]
for marriage).

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B. The Man-Woman Marriage Definition Satisfies Constitutional Review.
Arizonas man-woman marriage definition satisfies rational-basis review. That
level of review constitutes a paradigm of judicial restraint, under which courts have no
license . . . to judge the wisdom, fairness, or logic of legislative choices. FCC v. Beach
Commcns, Inc., 508 U.S. 307, 313-14 (1993). A statutory classification fails rational-
basis review only when it rests on grounds wholly irrelevant to the achievement of the
States objective. Heller v. Doe, 509 U.S. 312, 324 (1993) (internal quotation marks
omitted); see also Dandridge v. Williams, 397 U.S. 471, 485 (1970) (noting that the
challenged classification need not be made with mathematical nicety). Thus, the man-
woman marriage definition must be upheld . . . if there is any reasonably conceivable
state of facts that could provide a rational basis for it. Heller, 509 U.S. at 320. And
because marriage has always been, in our federal system, the predominant concern of
state government . . . rational-basis review must be particularly deferential in this
context. Bruning, 455 F.3d at 867; see also Windsor, 133 S. Ct. at 2691 (stating that
marriage is an area that has long been regarded as a virtually exclusive province of the
States).
The States definition of marriage also withstands heightened scrutiny. To satisfy
that standard, the State must show that the challenged classification serves important
governmental objectives and that the . . . means employed are substantially related to the
achievement of those objectives. Virginia, 518 U.S. at 533 (internal quotation marks and
alterations omitted). Arizonas man-woman marriage definition and the laws reaffirming
it are substantially related to at least three compelling objectives: (1) connecting children
to both their biological mother and their biological father; (2) avoiding the adverse
consequences likely to accompany the redefinition of marriage; and (3) protecting the
Peoples fundamental right to define marriage for their own community. These interests
are addressed in turn.


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1. Arizonas Man-Woman Marriage Definition Furthers the
States Compelling Interest in Connecting Children to Both
Their Biological Mother and Their Biological Father.
a. The State Has a Compelling Interest in Connecting
Children to Both of Their Biological Parents.
The historical record leaves no doubt that the State recognizes marriage for the
purpose of providing stability to the types of relationships that are presumptively capable
of naturally producing children and affording them both of their biological parents. See
DSOF 1-4. Every person has a mother and father, and the State has a compelling
interest in encouraging arrangements where children are more likely to be raised by both
of those parents. This interest is among the purposes for Arizonas man-woman marriage
definition. See DSOF 8-9, 28.
Underscoring the strength of this interest, the Supreme Court has recognized a
constitutional liberty interest in the natural family, a paramount interest having its
source . . . in intrinsic human rights. Smith v. Org. of Foster Families for Equal. &
Reform, 431 U.S. 816, 845 (1977). That right belongs not only to biological parents, id. at
846, it also vests in each child, see Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2582
(2013) (Sotomayor, J ., dissenting) ([C]hildren have a reciprocal interest in knowing their
biological parents.); Bowen v. Gilliard, 483 U.S. 587, 614 (1987) (Brennan, J .,
dissenting) (acknowledging that children have a fundamental interest in sustaining a
relationship with their mother and father); United Nations Convention on the Rights
of the Child, G.A. Res. 44/25, art. 7, 1 (Nov. 20, 1989), available at http://www.ohchr.
org/en/professionalinterest/pages/crc.aspx (The child . . . shall have . . . , as far as
possible, the right to know and be cared for by his or her parents.). Arizona law
additionally acknowledges that the biological connection between parent and child is
itself a relationship that creates a protected [legal] interest. Soos v. Superior Court, 897
P.2d 1356, 1361 (Ariz. Ct. App. 1994).

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[T]he biological bond between a parent and a child is a strong foundation for a
stable and caring relationship. Adoptive Couple, 133 S. Ct. at 2582 (Sotomayor, J .,
dissenting). The law thus reasonably presumes that these natural bonds of affection lead
parents to act in the best interests of their children. Parham v. J.R., 442 U.S. 584, 602
(1979); accord Troxel v. Granville, 530 U.S. 57, 68 (2000); see also 1 William
Blackstone, Commentaries *435 (Dfs. Ex. 1) (recognizing the insuperable degree of
affection for ones natural children implant[ed] in the breast of every parent).
Social science has shown this presumption to be well founded. Indeed, the most
reliable studies on alternative family structures show that, in general, the optimal
childrearing environment is a home headed by a married biological mother and biological
father. DSOF 33. Further confirming the primacy of the biological home is the body of
scholarship demonstrating that, in general, children raised in stepfamilies do not fare as
well as children raised by their biological parents in an intact family. DSOF 34.
Moreover, every set of biological parents provides their children with a parent of each
sex, and much social science indicates that gender-differentiated parenting is important
for human development. DSOF at 35-36; see also Bowen, 483 U.S. at 614 (Brennan,
J ., dissenting) ([T]he optimal situation for the child is to have both an involved mother
and an involved father).
In addition to tangible deficiencies in development, children deprived of their
substantial interest in know[ing] [their] natural parents, as the Supreme Court has
recognized, experience a loss[] [that] cannot be measured, one that may well be far-
reaching. Santosky v. Kramer, 455 U.S. 745, 760 n.11 (1982). This observation is
supported by studies showing that [y]oung adults conceived through sperm donation
(who thus lack a connection to their biological father) experience profound struggles
with their origins and identities. DSOF 37.
The States interest in encouraging biological parents to stay together and jointly
raise their children is particularly weighty when the parents did not intend to create the
children in the first place. That situation is quite typical, given that unplanned

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pregnancies account for nearly half of all births in the United States. DSOF 40. Yet
unintended births out of wedlock are associated with negative outcomes for children
because those children are often raised outside stable family units headed by both their
mother and their father. DSOF 41-42.
Children thus have weighty tangible and intangible interests in being raised by
their own mother and father in a stable home. But they, as a class of citizens unable to
advocate for themselves, must depend on the State to protect those interests for them.
And Arizonas man-woman marriage definition does just that.
Plaintiffs miss the mark when they claim that children raised by same-sex
couples are just as well-adjusted as those raised by heterosexual couples. Pls. Mem. at
36. Even if that contested point were true,
7
that does not undermine the research
indicating that, on average, children develop best when raised by their biological mothers
and fathers in a stable family unit, see DSOF 33, and it does not displace the centuries-
old legal presumption in favor of natural parents, see, e.g., Parham, 442 U.S. at 602; 1
William Blackstone, Commentaries *435 (Dfs. Ex. 1). Nor does it refute the importance
of protecting childrens intangible interests in knowing their biological parents.
Santosky, 455 U.S. at 760 n.11; Adoptive Couple, 133 S. Ct. at 2582 (Sotomayor, J .,
dissenting); see also DSOF 37.
b. The Man-Woman Marriage Definition Is Substantially
Related to the States Compelling Interest in Connecting
Children to Both of Their Biological Parents.
The State establishes the requisite relationship between its interests and the means
chosen to achieve those interests when the inclusion of one group promotes a legitimate

7
It is reasonable to question, as many have, Plaintiffs claims about same-sex parenting.
See Lofton, 358 F.3d at 825; Amicus Brief of Professors of Social Science at 2-3, Kitchen
v. Herbert, No. 13-4178 (10th Cir. Feb. 10, 2014) (Dfs. Ex. 22). Most notably, the studies
that allegedly support Plaintiffs parenting claims exhibit significant analytical
shortcomings, such as the use of small, non-random, non-representative samples. See
Lofton, 358 F.3d at 825; Loren D. Marks, Same-sex Parenting and Childrens Outcomes:
A Closer Examination of the American Psychological Associations Brief on Lesbian and
Gay Parenting, 41 Social Science Research 735 (2012) (Dfs. Ex. 65).

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governmental purpose, and the addition of other groups would not[.] Johnson v.
Robison, 415 U.S. 361, 383 (1974). Therefore, the relevant inquiry here is not, as
Plaintiffs allege, whether excluding same-sex couples from marriage furthers the States
interest in encouraging biological mothers and fathers to jointly raise their children. See
Pls. Mem. at 35. Rather, the relevant question is whether an opposite-sex definition of
marriage furthers legitimate interests that would not be furthered, or furthered to the same
degree, by allowing same-sex couples to marry. Jackson v. Abercrombie, 884 F. Supp.
2d 1065, 1107 (D. Haw. 2012); accord Standhardt, 77 P.3d at 463; Morrison, 821 N.E.2d
at 23, 29; Andersen, 138 P.3d at 984 (plurality). The propriety of this analysis is
supported by the general principle that [t]he Constitution does not require things which
are different in fact or opinion to be treated in law as though they were the same. Vacco
v. Quill, 521 U.S. 793, 799 (1997) (internal quotation marks and citation omitted).
Under this analysis, Arizonas man-woman marriage definition plainly satisfies
constitutional review. Sexual relationships between men and womenand only such
relationshipsnaturally produce children, and they often do so unintentionally. See
DSOF 40. By granting recognition and support to man-woman couples, marriage
generally makes those potentially procreative relationships more stable and enduring, and
thus increases the likelihood that each child will be raised by the man and woman whose
sexual union brought her into the world. DSOF 39.
Sexual relationships between individuals of the same sex, by contrast, do not
provide children with both their mother and their father. Nor do they risk unintentionally
creating children as the natural byproduct of their sexual relationship. Same-sex couples
thus do not further societys compelling interest in connecting children to both their
mother and their father like sexual relationships between men and women do.
It is therefore constitutional for Arizona to maintain an institution to address the
unique opportunities that the procreative potential of sexual relationships between men
and women presents. See, e.g., Vance v. Bradley, 440 U.S. 93, 109 (1979) (stating that a
law may dr[aw] a line around those groups . . . thought most generally pertinent to its

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objective); Johnson, 415 U.S. at 378 (stating that a classification will be upheld if
characteristics peculiar to only one group rationally explain the statutes different
treatment of the two groups). Consequently, the commonsense distinction, Heller, 509
U.S. at 326, that Arizona law has always drawn between man-woman couples and all
other relationships is neither surprising nor troublesome from a constitutional
perspective. Nguyen v. INS, 533 U.S. 53, 63 (2001). That is why a host of judicial
decisions, including a federal decision issued earlier this month, have concluded that
laws defining marriage as the union of one man and one woman and extending a variety
of benefits to married couples are rationally related to the government interest[s] in
steering procreation into marriage and connecting children to their biological parents.
Bruning, 455 F.3d at 867-68; see, e.g., Robicheaux, 2014 WL 4347099, at *6
(Louisianas [man-woman marriage laws] are directly related to achieving marriages
historically preeminent purpose of linking children to their biological parents.); Jackson,
884 F. Supp. 2d at 1112-14; Standhardt, 77 P.3d at 461-64; Morrison, 821 N.E.2d at 23-
31; Conaway, 932 A.2d at 630-34; Baker, 191 N.W.2d at 186-87; Hernandez, 855 N.E.2d
at 7-8; In re Marriage of J.B. & H.B., 326 S.W.3d at 677-78; Andersen, 138 P.3d at 982-
85 (plurality); Singer, 522 P.2d at 1197.
Additionally, the man-woman definition of marriage satisfies heightened scrutiny
because even under that more demanding standard, [t]he Constitution requires that [a
State] treat similarly situated persons similarly, not that it engage in gestures of
superficial equality. Rostker v. Goldberg, 453 U.S. 57, 79 (1981). To fail to
acknowledge even our most basic biological differences, like those between same-sex
couples and man-woman couples, risks making the guarantee of equal protection
superficial, and so disserving it. Nguyen, 533 U.S. at 73; accord id. at 63 (upholding a
proof-of-citizenship law under heightened scrutiny because the two classes at issue
[f]athers and motherswere not similarly situated with regard to the proof of
biological parenthood); Michael M. v. Superior Court, 450 U.S. 464, 471 (1981)
(plurality) (upholding a statutory-rape law under heightened scrutiny because young

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men and young women are not similarly situated with respect to the problems and the
risks of sexual intercourse since [o]nly women may become pregnant). Because man-
woman couples and same-sex couples are not similarly situated with regard to the States
interest in connecting children to both biological parents, the challenged marriage laws
withstand heightened scrutiny.
2. Arizonas Man-Woman Marriage Definition Avoids the Long-
Term Adverse Consequences that the State Could Logically
Project Would Accompany the Redefinition of Marriage.
The State may logically project that redefining marriage poses a significant risk of
bringing about adverse social consequences over time. Recently, when reviewing the
constitutionality of a voter-enacted measure, a plurality of the Supreme Court, in an
opinion that J ustice Kennedy authored, assume[d] the voters concerns about the
potential adverse results that might result from failing to enact the challenged law.
Schuette, 134 S. Ct. at 1638. The Court did not require the State to prove that those
projected consequences would occur, but affirmed that [w]hether those adverse results
would follow is, and should be, the subject of [ongoing political] debate. Id.
Even under heightened scrutiny, courts must accord substantial deference to the
[governments] predictive judgments. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180,
195 (1997) (internal quotation marks omitted); see also Grutter v. Bollinger, 539 U.S.
306, 328 (2003) (deferring to a public universitys judgment that [racial] diversity [was]
essential to its educational mission). Sound policymaking often requires [democratic
decisionmakers] to forecast future events and to anticipate the likely impact of [those]
events based on deductions and inferences for which complete empirical support may be
unavailable. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665 (1994) (plurality).
No one seriously disputes that legally redefining marriage as a genderless
institution will have real-world consequences. Complex social institutions like marriage
comprise a set of norms, rules, patterns, and expectations that powerfully (albeit often
unconsciously) affect peoples choices, actions, and perspectives. DSOF 43. Marriage
in particular is a pervasive and influential social institution that entails a complex set of

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personal values, social norms, and legal constraints that regulate particular intimate
human relations. DSOF 44.
Although the law did not create marriage, its recognition and regulation of that
institution has a profound effect on molding and sustaining it. DSOF 45. Plaintiffs ask
this Court to use the laws power to redefine the institution of marriage and thereby
transform marriage in the public consciousness from a gendered to a genderless
institutiona conversion that would be swift and unalterable. See Lewis, 908 A.2d at
222. Scholar and genderless-marriage supporter J oseph Raz has written about this:
When people demand recognition of gay marriages, they usually mean to
demand access to an existing good. In fact they also ask for the
transformation of that good. For there can be no doubt that the recognition
of gay marriages will effect as great a transformation in the nature of
marriage as that from polygamous to monogamous or from arranged to
unarranged marriage.
J oseph Raz, Ethics in the Public Domain 23 (1994); see also DSOF 46 (citing similar
statements by genderless-marriage supporters); Windsor, 133 S. Ct. at 2715 n.6 (Alito, J .,
dissenting) (same). The State and its voters may logically project that the following
adverse social developments would likely accompany the redefinition of marriage in
Arizona; avoiding these consequences is among the purposes for Arizonas man-woman
marriage definition. See DSOF 29.
1. It Is Logical to Project that Fewer Fathers Will Commit to Their Childrens
Mothers and Jointly Raise Their Children. A genderless-marriage institution would
prevent the State from communicating the message that, all things being equal, it is best
for children to be reared by their biological mother and their biological father. See Robert
P. George et al., What is Marriage? 58 (2012) (Dfs. Ex. 60). Instead, as over seventy
prominent scholars have acknowledged, the State would communicate that there is
nothing intrinsically valuable about connecting children to both their mother and their
father. See Witherspoon Institute, Marriage and the Public Good: Ten Principles 18-19
(2008) (Dfs. Ex. 31); Norval D. Glenn, The Struggle For Same-Sex Marriage, 41 Socy
25, 25 (2004) (Dfs. Ex. 6) (discussing the dangerous denial of the value of fathers for

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the socialization, development, and well being of children that accompanies legal
advocacy for genderless marriage).
It is logical to project that conveying these messages would adversely affect
fathers involvement in their childrens lives. Researchers have observed that the culture
of fatherhood and the conduct of fathers change from decade to decade as social and
political conditions change. DSOF 51. This has led many scholars to surmise that
fathering is more sensitive than mothering to contextual forces. Id.
Thus, as the State undermines the importance of fathers, it would likely over time
weaken[] the societal norm that men should take responsibility for the children they
beget, Witherspoon Institute, supra, at 18-19 (Dfs. Ex. 31), and soften the social
pressures and lower the incentives . . . for husbands to stay with their wives and
children, George, supra, at 8 (Dfs. Ex. 60). It would also likely encourage mothers to
create or raise children apart from their fathers. In these ways, genderless marriage would
directly undermine marriages purpose of encouraging fathers and mothers to jointly raise
the children that they create, with the anticipated outcome that more children would be
raised without their fathers.
The States concern is that those children would suffer. For those who never know
their father, they will experience a loss[] [that] cannot be measured, one that, as the
Supreme Court has recognized, may well be far-reaching. Santosky, 455 U.S. at 760
n.11; see also DSOF 37 (discussing profound struggles with [childrens] origins and
identities). And for those children who know their fathers but are not raised by them,
they will experience increased hardships. As President Obama has explained:
We know the statisticsthat children who grow up without a father are five
times more likely to live in poverty and commit crime; nine times more
likely to drop out of schools and twenty times more likely to end up in
prison. They are more likely to have behavioral problems, or run away from
home, or become teenage parents themselves. And the foundations of our
community are weaker because of it.
DSOF 36; see also id. (citing many studies supporting President Obamas statement).

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2. It is Logical to Project that Marriage Between Man-Woman Couples
Having or Raising Children Will Decrease. Because procreation necessarily requires the
involvement of two persons of different sexes, transforming marriage into a genderless
(or same-sex) institution would undermine the intrinsic link between marriage and
procreation. Witherspoon Institute, supra, at 18 (Dfs. Ex. 31). That change would thus
promote the mistaken view that civil marriage has little to do with procreation[.]
Goodridge, 798 N.E.2d at 1002 (Cordy, J ., dissenting).
Because genderless marriage would undermine the link between marriage and
procreation, the social connection between marriage and procreation would wane over
time. As this occurs, the social expectation and pressure to marry for man-woman
couples having or raising children would likely decrease further. See George, supra, at 62
(Dfs. Ex. 60) (noting that it might be more socially acceptable . . . for unmarried parents
to put off firmer public commitment). These developments, over time, would lodge in
the public mind the idea that marriage is merely an option (rather than a social
expectation) for man-woman couples raising children.
That, in turn, would likely result in fewer fathers and mothers marrying each other,
particularly in lower-income communities where the immediate (though not the long-
term) impact of marriage would be financially disadvantageous to the parents. See J ulien
O. Teitler et al., Effects of Welfare Participation on Marriage, 71 J . Marriage & Fam.
878, 878 (2009) (Dfs. Ex. 67) (concluding that the negative association between welfare
participation and subsequent marriage reflects temporary economic disincentives).
Available data support these projections of a decreasing marriage rate under a genderless-
marriage regime. See DSOF 48. Without the stability that marriage provides, more
man-woman couples would end their relationships before their children are grown, see
DSOF 39, and more children would be raised outside a stable family unit led by their
married mother and father.
The adverse anticipated effects would not be confined to children whose parents
separate. The costs would run throughout society. As fewer man-woman couples marry

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and as more of their relationships end prematurely, the already significant social costs
associated with unwed childbearing and divorce would further increase. See DSOF 50.
3. It Is Logical to Project an Increase in Marital Instability. Genderless
marriage would communicate that marriage exists primarily for the State to approve
romantic bonds. This would occur because romantic bonds (not sexual conduct of the
type that creates children) would be the predominant feature shared by the couples who
marry under that regime. See George, supra, at 55 (Dfs. Ex. 60). Hence, the law would
convey that an emotional connection is the defining characteristic of marriage.
But if romantic bonds become the ultimate determinant of marriage, no logical
grounds would reinforce marriage-stabilizing norms like sexual exclusivity, permanence,
and monogamy. See id. at 7, 56. Some might determine that sexual openness will enhance
their relationship, that their emotional attachment runs between and among a few partners
at the same time, or that their marriage is no longer fulfilling because attraction has
waned. With love or emotion as the ultimate guidepost, it would seem wrong under this
marital regime to deny oneself any of these steps toward fulfillment.
This obscuring of the logic of marriage-stabilizing norms like sexual exclusivity,
permanence, and monogamy presents significant concerns for society because people
tend to abide less by any given norms, the less those norms make sense. Id. at 67. So as
society fails to live in conformity with these norms, marriages on the whole are likely to
become more unstable, which would adversely affect children. Id.; see also DSOF 49.
Available data lend credence to these projections of greater marital instability under a
genderless-marriage regime. See DSOF 48.
Supporting the States concerns about the redefinition of marriage is the historical
analogue of no-fault divorce laws. See Windsor, 133 S. Ct. at 2715 n.5 (Alito, J .,
dissenting) (discussing the sharp rise in divorce rates following . . . no-fault divorce).
Legislatures throughout the Nation adopted those laws to facilitate the end of unhealthy
marriages. But although proponents assured their fellow citizens that no-fault divorce
laws would have no ill effects, history has shown that those assurances were misguided.

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Decades later, scholars observed that no-fault divorce laws changed the social
norms and expectations associated with marriage. See William J . Goode, World Changes
in Divorce Patterns 144 (1993) (Dfs. Ex. 68) (stating that no-fault divorce laws helped
to create a set of social understandings as to how easy it is to become divorced if married
life seems irksome). Those laws, at bottom, have created new kinds of families in
which relationships are fragile and often unreliable. J udith S. Wallerstein et al., The
Unexpected Legacy of Divorce: The 25 Year Landmark Study 297 (2000) (Dfs. Ex. 69).
Empirical studies have confirmed that these changes in norms and expectations led to a
change in marital behavior. Indeed, studies have shown that no-fault divorce laws
increased divorce rates above their historical trends. DSOF 52. Arizonans may thus
reasonably fear that redefining marriage would lead to similar adverse social trends.
3. The Challenged Marriage Laws Protect the Peoples Right to
Define Marriage for Their Community.
The People and their elected officials enacted the challenged marriage laws to
protect the electorates right to define marriage for their community. See DSOF 18, 27,
30. The States marriage-recognition policy furthers this purpose by ensuring that
marriage will not be indirectly redefined in Arizona through the recognition of unions
solemnized elsewhere. See DSOF 18, 19. And the challenged marriage amendment
furthers this purpose by ensuring that state-court judges cannot interpret the Arizona
Constitution to change the definition of marriage. See DSOF 27, 30. Because the
challenged laws do not violate Plaintiffs fundamental rights, the States important
interest in protecting the Peoples collective right to democratically decide this vital
social question amply sustains the challenged laws.
Windsor directly supports this important interest. Indeed, a central focus of that
decision is the right of States to define the marital relation. See, e.g., 133 S. Ct. at 2691
(The definition of marriage is the foundation of the States broader authority to regulate
the subject of domestic relations[.]); id. at 2692 (discussing the States essential
authority to define the marital relation). More specifically, Windsor acknowledges that

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the Constitution permits States to define marriage through the political process, extolling
the importance of allow[ing] the formation of consensus when States shap[e] the
destiny of their own times on critical questions like the definition of marriage:
In acting first to recognize and then to allow same-sex marriages, New
York was responding to the initiative of those who sought a voice in
shaping the destiny of their own times. These actions were without doubt a
proper exercise of its sovereign authority within our federal system, all in
the way that the Framers of the Constitution intended. The dynamics of
state government in the federal system are to allow the formation of
consensus respecting the way the members of a discrete community treat
each other in their daily contact and constant interaction with each other.
Id. (internal quotation marks, alterations, and citation omitted).
The Schuette plurality further affirms the Peoples right to shap[e] the destiny of
their own times on sensitive policy matters. 134 S. Ct. at 1636. [F]reedom does not
stop with individual rights. Our constitutional system embraces, too, the right of citizens
to debate so they can learn and decide and then, through the political process, act in
concert to try to shape the course of their own times[.] Id. at 1636-37. That a particular
question of public policy is sensitive, complex, delicate, arcane, difficult,
divisive, or profound does not disable the People from prudently addressing it. Id.
at 1637-38. Concluding otherwise would demean[] . . . the democratic process and
impermissibly restrict the exercise of a fundamental right held not just by one person but
by all in commonnamely, the right to speak and debate and learn and then, as a
matter of political will, to act through a lawful electoral process. Id. at 1637. When they
enacted the marriage laws challenged here, Arizonans legitimately exercised this
collective right to decide one of the most profound and divisive questions of our daythe
definition of the marital relation. The Fourteenth Amendment does not prohibit this.
4. Plaintiffs Attempts to Impugn the Purposes for Arizonas Man-
Woman Marriage Definition Are Unavailing.
Plaintiffs baselessly assert that the challenged marriage laws primary purpose is
to disparage and demean same-sex couples, Pls. Mem. at 38, and that such alleged

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motivations automatically invalidate the States man-woman marriage definition, id.
Aside from the absence of support for this audacious charge concerning the motives
underlying the challenged laws, Plaintiffs argument suffers from an obvious flaw:
Arizonas man-woman marriage definition existed for nearly a century before the
challenged laws were enacted; therefore, even if the State had not approved any of those
enactments, marriage in Arizona would nevertheless have been (and continue to be) a
man-woman union. See DSOF 5-6. Thus, Plaintiffs focus on impugning the motives
of the legislators and voters who enacted laws during the last two decades is beside the
point. The constitutionality of Arizonas man-woman marriage definition cannot be
determined by fixating on the motives of some individuals who approved those laws.
Moreover, the statements that Plaintiffs quote (see Pls. Mem. at 39-40) do not
indicate that the purpose of the challenged laws was to disparage or demean anyone.
Even Plaintiffs admit that many of the supporters of the challenged laws did not seek to
discriminat[e] against lesbian and gay couples. Pls. Mem. at 39. Rather, the referenced
statements support the States interests in (1) connecting children to both their biological
mother and their biological father and (2) avoiding the adverse consequences likely to
accompany the redefinition of marriage (as explained above). Those are legitimate (and,
indeed, compelling) reasons for the People to preserve the man-woman marriage
definition as they have.
Furthermore, throughout their briefing, Plaintiffs assert that the State
stigmatiz[es] their relationships by not regulating them. See, e.g., Pls. Mem. at 39. But
it is not stigmatizing to treat differently situated couples differently. See Cleburne, 473
U.S. at 439 (The Equal Protection Clause . . . is essentially a direction that all persons
similarly situated should be treated alike.); Plyler v. Doe, 457 U.S. 202, 216 (1982)
([T]he Constitution does not require things which are different in fact or opinion to be
treated in law as though they were the same. (internal quotation marks omitted)).
Because same-sex couples are differently situated to man-woman couples for purposes of
the States interest in joining children to both their mother and their father, it is not

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stigmatizing or otherwise unconstitutional for the State to treat them differently.
Plaintiffs stigma allegations are based on a profound misunderstanding of the institution
of marriage and its purposes in Arizona.
III. If the Court Grants Plaintiffs Motion and Enjoins the States Man-Woman
Marriage Definition, the Court Should Stay Its Ruling Pending Appeal.
In similar cases challenging other States man-woman marriage definitions, the
Supreme Court and the Ninth Circuit have already ordered district courts to stay their
rulings pending the exhaustion of all appeals. See Herbert v. Kitchen, 134 S. Ct. 893
(2014) (ordering that the [p]ermanent injunction issued by the [district court] is stayed
pending final disposition of the appeal); McQuigg v. Bostic, No. 14A196, 2014 WL
4096232 (U.S. Aug. 20, 2014) (ordering that the mandate of the court of appeals is
stayed pending the timely filing and disposition of a petition for a writ of certiorari);
Order, Latta v. Otter, No. 14-35420 (9th Cir. May 20, 2014), available at
http://cdn.ca9.uscourts.gov/datastore/general/2014/05/20/14-35420a.pdf (granting the
defendants motions to stay the district courts . . . order pending appeal). Binding
precedent thus requires a stay of any decision enjoining enforcement of Arizonas man-
woman marriage definition.
A party seeking a stay must establish that he is likely to succeed on the merits,
that he is likely to suffer irreparable harm in the absence of relief, that the balance of
equities tip in his favor, and that a stay is in the public interest. Humane Soc. of U.S. v.
Gutierrez, 558 F.3d 896, 896 (9th Cir. 2009). Defendants satisfy those requirements here.
First, the arguments in this memorandum of law establish that Defendants are likely to
succeed on the merits. Second, it is clear that a state suffers irreparable injury whenever
an enactment of its people or their representatives is enjoined. Coal. for Econ. Equity v.
Wilson, 122 F.3d 718, 719 (9th Cir. 1997). Third, the balance of equities and public
interest weigh in favor of a stay because if Defendants begin issuing marriage licenses in
violation of state law before the merits of this case are finally resolved, the State will
experience unnecessary confusion, uncertainty, and conflict. See Evans v. Utah, No.

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2:14CV55DAK, 2014 WL 2048343, at *1-4 (D. Utah May 19, 2014) (recounting the
confusion, uncertainty, and conflict that resulted when a federal district court in Utah did
not stay its ruling in a similar case).
Conclusion
For the foregoing reasons, Defendants request that the Court grant summary
judgment in their favor and dismiss all claims in Plaintiffs Amended Complaint.
Alternatively, if the Court grants summary judgment in Plaintiffs favor, Defendants
request that the Court stay its judgment pending appeal.


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Respectfully submitted this 16th day of September, 2014.

s/ Byron J . Babione

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

Thomas C. Horne
Attorney General

Robert L. Ellman
Solicitor General

Kathleen P. Sweeney
Assistant Attorney General

Attorneys for Defendants


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

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

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

Attorneys for Plaintiffs

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

Byron J . Babione


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