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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 STATEMENT OF
FACTS IN SUPPORT OF CROSS-
MOTION FOR SUMMARY
JUDGMENT

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Defendants submit this Statement of Facts in Support of their Cross-Motion for
Summary J udgment. Many of the facts stated below are legislative factsthat is, facts
that have relevance to legal reasoning and the lawmaking process. Fed. R. Evid. 201,
Advisory Committee Note to Subdivision (a); see also Marshall v. Sawyer, 365 F.2d 105,
111 (9th Cir. 1966) (legislative facts are general facts which help the tribunal decide
questions of law, policy, and discretion (internal quotation marks omitted)); United
States v. $124,570 U.S. Currency, 873 F.2d 1240, 1244 (9th Cir. 1989) (Kozinski, J .)
(legislative facts are those applicable to [an] entire class of cases); Ind. Harbor Belt
R.R. Co. v. Am. Cyanamid Co., 916 F.2d 1174, 1182 (7th Cir. 1990) (Posner, J .)
(legislative facts are facts relevant to shaping a general rule). Legislative facts are best
introduced through documents submitted in support of summary judgment rather than
through trial evidence. See Daggett v. Commn on Governmental Ethics & Election
Practices, 172 F.3d 104, 112 (1st Cir. 1999) (Boudin, J .) (legislative facts usually are
not proved through trial evidence but rather by material set forth in the briefs); Ind.
Harbor Belt R.R. Co., 916 F.2d at 1182 (legislative facts are facts reported in books and
other documents, and trials are not best suited to determine . . . legislative facts).
Purpose of Marriage
1. Historians, philosophers, anthropologists, and jurists widely acknowledge
that marriage exists to connect children to their biological parents.
a. Legal historian William Blackstone stated that the principal end and
design of marriage is linked directly to the great relation[] of parent
and child, and that the parent-child relation is consequential to that of
marriage. 1 William Blackstone, Commentaries *410 (Dfs. Ex. 1).
Blackstone further observed that it is by virtue of this relation that infants
are protected, maintained, and educated. Id.
b. Political theorist J ohn Locke similarly explained that the end of
conjunction between male and female [i.e., marriage] being not barely
procreation, but the continuation of the species, this conjunction betwixt
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male and female ought to last, even after procreation, so long as is
necessary to the nourishment and support of the young ones . . . . J ohn
Locke, Second Treatise of Civil Government 79 (1690) (Dfs. Ex. 2).
c. Philosopher Bertrand Russell acknowledged that [b]ut for children, there
would be no need of any institution concerned with sex. Bertrand Russell,
Marriage & Morals 77 (Liveright Paperbound Edition, 1970) (Dfs. Ex. 3).
d. Anthropologist Claude Levi-Strauss stated that the familybased on a
union, more or less durable, but socially approved, of two individuals of
opposite sexes who establish a household and bear and raise children
appears to be a practically universal phenomenon, present in every type of
society. Claude Levi-Strauss, The View From Afar 40-41 (1985) (Dfs. Ex.
4).
e. Anthropologist G. Robina Quale wrote this about marriage and its role in
society: Marriage, as the socially recognized linking of a specific man to a
specific woman and her offspring, can be found in all societies. Through
marriage, children can be assured of being born to both a man and a woman
who will care for them as they mature. G. Robina Quale, A History of
Marriage Systems 2 (1988) (Dfs. Ex. 5).
f. J ustice Alito acknowledged that there is no doubt that, throughout human
history and across many cultures, marriage has been viewed as an
exclusively opposite-sex institution and as one inextricably linked to
procreation and biological kinship. United States v. Windsor, 133 S. Ct.
2675, 2718 (2013) (Alito, J ., dissenting).
2. Sociologists and economists widely acknowledge that marriage provides
social recognition . . . for the purpose of regulation of sexual activity and provision for
offspring that may result from it. Norval D. Glenn, The Struggle for Same-Sex
Marriage, 41 Socy 25, 26 (2004) (Dfs. Ex. 6); see also Douglas W. Allen, An Economic
Assessment of Same-Sex Marriage Laws, 29 Harv. J .L. & Pub. Poly 949, 957 (2006)
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(Dfs. Ex. 7) (Many economists have concluded that marriage is primarily . . . designed
to regulate procreative behavior . . . .); W. Bradford Wilcox et al., eds., Why Marriage
Matters 19-20 (3d ed. 2011) (Dfs. Ex. 8) (hereafter Wilcox, Marriage Matters III) (As
a virtually universal human idea, marriage involves regulating the reproduction of
children, families, and society. While marriage systems differ (and not every person or
class within a society marries), marriage across societies is a publicly acknowledged and
supported sexual union that creates kinship obligations and resource pooling between
men, women, and the children that their sexual union may produce.).
3. By channeling sexual relationships between a man and a woman into a
committed setting, marriage encourages mothers and fathers to remain together and care
for the children born of their union. Marriage is thus a socially arranged solution for the
problem of getting people to stay together and care for children that the mere desire for
children, and the sex that makes children possible, does not solve. J ames Q. Wilson, The
Marriage Problem 41 (2002) (Dfs. Ex. 9).
4. The genius of the [marital] system is that, through it, the society normally
holds the biological parents responsible for each other and for their offspring. By
identifying children with their parents, . . . the social system powerfully motivates
individuals to settle into a sexual union and take care of the ensuing offspring. Kingsley
Davis, Introduction: The Meaning and Significance of Marriage in Contemporary
Society, in Contemporary Marriage: Comparative Perspectives on a Changing Institution
1, 7-8 (Kingsley Davis ed., 1985) (Dfs. Ex. 10).
History of Arizonas Marriage Laws
5. Apart from any statutory provisions, the common law of the State of
Arizona (and previously the Territory of Arizona) has always understood marriage as the
union of one man and one woman. See 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.); United States v. Tenney, 11
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P. 472, 477 (Ariz. 1886) (instructing a jury that marriage . . . is defined to be a contract
between a man and woman); see also 2 J oel Prentiss Bishop, Commentaries on the Law
of Marriage & Divorce 225 (1st ed. 1852) (Dfs. Ex. 11) (Marriage between two
persons of one sex could have no validity, as none of the ends of matrimony could be
accomplished thereby. It has always, therefore, been deemed requisite to the entire
validity of every marriage . . . that the parties should be of different sex.).
6. Arizona statutory law has always reflected the common-law definition of
marriagethe union of husband and wife. See, e.g., Ariz. Rev. Stat. 12-2231 (In a
civil action a husband shall not be examined for or against his wife without her consent,
nor a wife for or against her husband without his consent . . . .); Ariz. Rev. Stat. 14-
2804 (Divorce or annulment . . . does not include a decree of separation that does not
terminate the status of husband and wife.); Ariz. Rev. Stat. 13-3609 (1. Marriage
means the state of joining together as husband and wife . . . . 2. Marry means to join
together as husband and wife . . . . 3. Spouses means two persons living together as
husband and wife . . . .); see also Non-Exhaustive Compendium of Man-Woman
Marriage Laws (Dfs. Ex. 12).
7. In Arizona, as elsewhere, [m]arriage is an institution regulated by law. The
public is interested in it, and has established a supervisorial power over its beginning,
continuance, and dissolution. Crook v. Crook, 170 P. 280, 282 (Ariz. 1918).
8. The states principal interest in the marriage status is the protection of the
family as a unit, and of the minor children. The whole history of our legislation in
Arizona, as well as elsewhere, shows this to be true. Forsythe, 271 P. at 867; see also
Oglesby v. Poage, 40 P.2d 90, 92 (Ariz. 1935) (same).
9. Arizona statutory law closely links biological parenthood and marriage.
See, e.g., Ariz. Rev. Stat. 12-2264 (A birth, death or fetal death certificate is prima
facie evidence of the facts therein stated, but if an alleged father of a child is not the
husband of the mother, the certificate shall not be prima facie evidence of paternity if that
fact is controverted by the alleged father.); Ariz. Rev. Stat. 36-334(C) (noting that the
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name of the mothers husband shall be listed as father on a childs birth certificate if
the mother is married at the time of birth or was married at any time in the ten months
before the birth).
History of Arizonas Recognition of Out-of-State Marriages
10. Arizona has always declined to recognize out-of-state marriages that
conflict with the States strong domestic-relations policy. See In re Mortensons Estate,
316 P.2d 1106, 1108 (Ariz. 1957) (Marriages performed outside the state which offend a
strong public policy of the state of domicile will not be recognized as valid in the
domiciliary state.); Cook v. Cook, 104 P.3d 857, 860 (Ariz. Ct. App. 2005) (explaining
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).
11. Even before the enactment of S.B. 1038, Arizona has historically declined
to recognize marriages that its domiciliaries enter into in another jurisdiction for the
purpose of evading Arizonas marriage laws. See Ariz. Rev. Stat. 25-112(C); In re
Mortensons Estate, 316 P.2d at 1107-08 (refusing to recognize a marriage between first
cousins even though the marriage was valid in the State where it was performed).
12. The affidavits of Plaintiffs who received marriage certificates from other
States indicate that they resided in Arizona when they received those certificates and
traveled to another jurisdiction for the purpose of evading Arizonas marriage laws. See,
e.g., McQuire Decl. 13-14 (Pls. Ex. E); Young Decl. 1-2 (Pls. Ex. G); Olson Decl.
1, 4, 6 (Pls. Ex. H); Burbank Decl. 3, 4, 7 (Pls. Ex. I); Ralph Decl. 1, 4, 6 (Pls.
Ex. K); Ahumeda Decl. 1, 2, 5, 6 (Pls. Ex. L).
History of S.B. 1033 (1980)
13. In 1980, the Legislature enacted S.B. 1033, which revised Ariz. Rev. Stat.
25-125 to provide, in relevant part, that [a] valid marriage is contracted by a male person
and a female person with a proper marriage license. Ariz. Rev. Stat. 25-125(A).
14. S.B. 1033 was enacted to correct [the] drafting style of outdated and
confusing statutory language in Section 25-125, leaving [t]he substance of th[at]
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section[] . . . unchanged. Arizona Legislative Council, Summary Analysis of S.B. 1033,
at 1, J an. 14, 1980. (Dfs. Ex. 70).
15. S.B. 1033 did not establish or alter the man-woman definition of marriage
in Arizona. See, e.g., Forsythe, 271 P. at 866; Tenney, 11 P. at 477; Non-Exhaustive
Compendium of Man-Woman Marriage Laws (Dfs. Ex. 12) (including statutes enacted
prior to 1980 recognizing marriage as the union of husband and wife).
History of S.B. 1038 (1996)
16. In 1993, the Hawaii Supreme Court issued a decision suggesting that its
state laws defining marriage as a man-woman union might violate the Hawaii
Constitution, thereby creating the prospect that Hawaii might redefine marriage. See
Baehr v. Lewin, 852 P.2d 44, 68 (Haw. 1993).
17. Faced with this development, in 1996, Arizona enacted S.B. 1038.
a. We in this body have the responsibility to set the policy for the state of
Arizona and make the laws for the state of Arizona, Rep. David
Farnsworth said. The [case] in Hawaii has challenged our law, and in order
to sustain our law, we must take this action. House Votes to Prohibit Gay
Marriages, Arizona Capital Times, Apr. 12, 1996, at 5 (Dfs. Ex. 14).
b. Representative David Farnsworth stated that [i]f Hawaii legalizes same
sex marriages, legal experts say other states would be required to recognize
them in the absence of laws specifically banning such unions. Transcript
of Committee on the Whole Hearing on S.B. 1038 at 44 (Dfs. Ex. 15).
c. Supporters of the amendment said the [bill] is needed to limit the potential
impact of a case currently in the Hawaiian court system. House Votes to
Prohibit Gay Marriages, Arizona Capital Times, Apr. 12, 1996, at 5 (Dfs.
Ex. 14).
d. See also Fact Sheet for S.B. 1038, Arizona State Senate, at 1 (Dfs. Ex. 19)
(discussing the Hawaii case, Baehr v. Lewin, in the Background section).
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18. Arizona enacted S.B. 1038 to protect its own definition of marriage
ensuring that marriage would not be indirectly redefined within its borders (without the
Peoples consent) through the recognition of differently defined unions solemnized in
other States:
a. Representative Blendu stated that if we do not [pass this bill], then the
State of Hawaii will be dictating to us what our [marriage] policy will be.
Transcript of Committee on the Whole Hearing on S.B. 1038 at 30 (Dfs.
Ex. 15).
b. Representative David Farnsworth stated that the issue is protecting the law
that we have made in the past so that someone outside the state will not
change Arizona policy. Transcript of Committee on the Whole Hearing on
S.B. 1038 at 21 (Dfs. Ex. 15).
c. Representative Smith stated that if the court in Hawaii rules that the same
sex marriages are acceptable, then if a same sex marriage thats conducted
in Hawaii, when they get to the State of Arizona, then well have to
recognize that marriage. But if we . . . pass this bill, then we wont have to
do it. . . . Thats the purpose of the bill. Transcript of Committee on the
Whole Hearing on S.B. 1038 at 5-6 (Dfs. Ex. 15).
d. An unidentified legislator from the J udiciary Committee stated that the
concern is that we have set the policy here in this state that we will not
recognize marriages that are not between a man and a woman, but that law
might be effectively overruled by a judge in Hawaii who rules that such
marriages are legal in Hawaii. Transcript of J udiciary Committee Hearing
on S.B. 1038 at 47 (Dfs. Ex. 13).
e. Representative Baird stated that Arizonas law could be effectively
overruled by the Hawaii [court] unless the state reiterates that it will not
recognize a same sex marriage from another state. Minutes of J udiciary
Committee Hearing on S.B. 1038 at 5 (Dfs. Ex. 63).
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19. Senate Bill 1038 did not establish or alter the man-woman definition of
marriage in Arizona.
a. The Arizona Senates Fact Sheet for S.B. 1038 acknowledged that a then-
governing Arizona statute . . . provide[d] that a valid marriage is
contracted between a male person and a female person. Fact Sheet for S.B.
1038, Arizona State Senate, at 1 (Dfs. Ex. 19).
b. Representative Dave Farnsworth stated that S.B. 1038 is not something
new. It is a clarification. Transcript of J udiciary Committee Hearing on
S.B. 1038 at 41 (attached as Dfs. Ex. 13).
c. See also Ariz. Rev. Stat. 25-125(A); Non-Exhaustive Compendium of
Man-Woman Marriage Laws (Dfs. Ex. 12) (including statutes enacted prior
to 1996 recognizing marriage as the union of husband and wife); Forsythe,
271 P. at 866; Tenney, 11 P. at 477.
History of the Arizona Covenant Marriage Laws (1998)
20. In 1998, the Arizona Legislature implemented covenant marriage laws,
codified at Ariz. Rev. Stat. 25-901 to 906, to create more stable family units and to
emphasize the meaning and value of marriage. Fact Sheet for S.B. 1133, Arizona State
Senate 1998, at 1 (Dfs. Ex. 16).
21. Concerns regarding fatherlessness, child welfare, and economic issues
linked to marital instability spawned the covenant marriage laws. See Steven L. Nock et.
al., Covenant Marriage 10-20 (2008) (Dfs. Ex. 17).
History of the Arizona Marriage Amendment (2008)
22. In 2003, litigants challenged, under both the United States Constitution and
the Arizona Constitution, Arizonas definition of marriage as the union of one man and
one woman. See Standhardt v. Superior Court ex rel. Cnty. of Maricopa, 77 P.3d 451,
453 (Ariz. Ct. App. 2003). In that case, the Arizona Court of Appeals held that
Arizonas prohibition against same-sex marriage rationally furthers a legitimate state
interest and that the prohibition does not deprive [the litigants] of their constitutional
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rights to substantive due process, privacy, or equal protection of the laws. Id. at 465.
That court also emphasized that it is for the people of Arizona, through their elected
representatives or by using the initiative process, rather than this court, to decide whether
to permit same-sex marriages. Id. The Arizona Supreme Court declined to review the
case.
23. In 2003, the Massachusetts Supreme J udicial Court concluded that the
States man-woman definition of marriage violated the Massachusetts Constitution. See
Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).
24. Prompted by the concern that the Arizona Supreme Court might similarly
interpret the Arizona Constitution to require genderless marriage, the People of Arizona
proposed a ballot initiative to place the man-woman definition of marriage in the Arizona
Constitution. See Arizona Secretary of State, Publicity Pamphlet: Ballot Propositions and
Judicial Performance Review, General Election, Nov. 7, 2006, at 74-76 (hereafter 2006
Ballot Propositions) (Dfs. Ex. 18).
25. That initiative, known as Proposition 107, also prevented the government
from recognizing any civil-union-type legal status that was similar to marriage. See
2006 Ballot Propositions, supra, at 74. The initiative failed by a vote of 775,498 to
721,489. 2006 General Election Official Canvass, Arizona Secretary of State, at 15 (Dfs.
Ex. 20).
26. In 2008, the Legislature proposed a different state constitutional
amendment, which defined marriage as the union of one man and one woman but did not
prohibit state recognition of civil unions. 2008 Ballot Proposition Guide at 30 (Dfs. Ex.
64).
27. Given the threat of a state constitutional challenge to Arizonas statutory
definition of marriage, the Legislature supported Proposition 102 (the Marriage
Amendment) to ensure that the People of the State, rather than the state judiciary, would
determine the definition of marriage in Arizona. See, e.g., Statement of Representative
Yarbrough during House Third Reading Calendar, Committee of the Whole, Forty-Eighth
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Legislature, Second Regular Session, May 12, 2008, at 00:16:12-00:18:24, available at
http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=3639 (This
amendment will eliminate the possibility of tampering with the definition of marriage by
politicians or judges. It will prevent them from using government time and taxpayer
money on attempts to redefine marriage. And it will reduce how many taxpayer dollars
may have to be spent to defend the current state statute against legal attack as other states
like California, Iowa, Connecticut, and others have had to do. This amendment is not the
same as Proposition 107. The voters have not already decided this issue. . . . And
regardless of how you may personally feel about the definition of marriage, I say lets
allow the voters to decide this issue.); Statement of Senator Allen during Senate
Committee of the Whole and Final Reading, Forty-Eighth Legislature, Second Regular
Session, J une 27, 2008, at 03:12:45-03:15:15, available at http://azleg.granicus.com/
MediaPlayer.php?view_id=13&clip_id=4098 ([I]t is right to send this to the people to
allow them to vote on it.); Statement of Senator Blendu during Senate Committee of the
Whole and Final Reading, Forty-Eighth Legislature, Second Regular Session, J une 27,
2008, at 03:15:15-03:16:40, available at http://azleg.granicus.com/MediaPlayer.php?
view_id=13&clip_id=4098 ([W]hat this is about is [keeping] a judge from changing [the
law].).
28. The People enacted the Marriage Amendment to maintain marriage in
Arizona as societys most effective means of connecting children to both their mother
and their father.
a. A mother and father begin the rearing of children with the most sacred act
of procreation, in which the parents are bonded to the children by the
greatest miracle . . . the power to create life. . . . The institution of marriage
provides a safeguard to families; its an open commitment to value this
miracle and cherish it. 2008 Ballot Proposition Guide at 32 (Dfs. Ex. 64).
b. [E]very child is entitled to a father and a mother. We have each been
granted that privilege by naturewe should not by law destroy that
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privilege given to each one of us. The Marriage Amendment Referendum is
just what we need to protect the rights of children. Marriage is supported by
law primarily to promote the protection of children. 2008 Ballot
Proposition Guide at 32 (Dfs. Ex. 64).
c. [E]very child has the right to a mother AND a father. 2008 Ballot
Proposition Guide at 33 (Dfs. Ex. 64).
d. Marriage between a man and a woman has always been the means of tying
children to their fathers and connecting fathers to the mother of their
children. 2008 Ballot Proposition Guide at 34 (Dfs. Ex. 64).
e. [C]hildren who grow up in fatherless or single parent home[s] are turning
to other sources of support instead of parent(s). As a result . . . this has
created a society with increased poverty, crime, uneducated individuals,
and increased taxes . . . . 2008 Ballot Proposition Guide at 31 (Dfs. Ex.
64).
f. Studies have shown that children raised in homes with a father and mother
married to each other are much more likely to stay out of crime and
poverty, and to have stable marriages themselves some day. 2008 Ballot
Proposition Guide at 32 (Dfs. Ex. 64).
g. Statistics verify over and over that children who are raised in strong
families with a mother and a father are more likely to be healthy and
productive citizens in our neighborhoods, our communities, and our
nation. 2008 Ballot Proposition Guide at 34-35 (Dfs. Ex. 64).
29. The People enacted the Marriage Amendment to avoid the potential adverse
consequences that are likely to accompany the redefinition of marriage.
a. [S]ame sex marriage . . . will have far reaching consequences. 2008
Ballot Proposition Guide at 30 (Dfs. Ex. 64) (statement of Senator Sylvia
Allen).
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b. [T]he downfall of any society begins with the breakdown of strong,
traditional families. 2008 Ballot Proposition Guide at 30 (Dfs. Ex. 64).
c. People in this country are beginning to understand . . . the negative
consequences of legalizing same-sex marriage. 2008 Ballot Proposition
Guide at 31 (Dfs. Ex. 64).
d. [C]ountries where same-sex marriage is legal have higher divorce and teen
pregnancy rates. 2008 Ballot Proposition Guide at 32 (Dfs. Ex. 64).
e. Myth: Same-sex marriage doesnt hurt heterosexual marriages, so why all
the fuss? Fact: When judges redefine marriage, it affects everyone.
Marriage is the cornerstone of society. Its good for men, women, and
children. Preserving the meaning of marriage means passing it on to our
children. 2008 Ballot Proposition Guide at 34 (Dfs. Ex. 64).
f. See also Statement of Senator Allen during Senate Committee of the Whole
and Final Reading, Forty-Eighth Legislature, Second Regular Session, J une
27, 2008 at 03:12:45-03:15:15, available at http://azleg.granicus.com/
MediaPlayer.php?view_id=13&clip_id=4098 (stating that past experiments
with family structures through policy reforms like no-fault divorce have
undermined the stability of the family and that changing the basic definition
of marriage will drastically affect family policy).
30. The People enacted the Marriage Amendment to prevent state-court judges
from changing the definition of marriage without the Peoples consent.
a. A law or statute preserving marriage as legal only between one man and
one woman is not enough! As evidenced in several states those laws can be
declared unconstitutional by a few judges . . . regardless of how the
People have voted. 2008 Ballot Proposition Guide at 31 (Dfs. Ex. 64).
b. If we amend the constitution in such a clear and concise manner as
proposed by PROP 102 it will put the power back in the hands of the
People . . . . 2008 Ballot Proposition Guide at 31 (Dfs. Ex. 64).
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c. We, as The People, need to take proactive action to make our voice heard
and protect marriage before activist judges make other decisions for us.
2008 Ballot Proposition Guide at 31 (Dfs. Ex. 64).
d. Arizona is only one court case away from having same-sex marriage
forced on us by activist judges. 2008 Ballot Proposition Guide at 31 (Dfs.
Ex. 64).
e. PROP 102 would prevent unelected judges from disregarding both the
constitution and the will of the people by forcing same-sex marriage on us.
2008 Ballot Proposition Guide at 31 (Dfs. Ex. 64).
f. Marriage is much too important to leave in the hands of unelected judges.
The people and our elected representatives should determine marriage
policy in our country. 2008 Ballot Proposition Guide at 32 (Dfs. Ex. 64).
g. To those who say that Arizona already has a law in place and that no
amendment is needed, please note what happened in California: four judges
struck down a citizen-sponsored initiative defending traditional marriage,
which unfortunately was not written as an amendment. Unless an
amendment is written into our state constitution, Arizona is in grave danger
of having the same thing happen here. 2008 Ballot Proposition Guide at 32
(Dfs. Ex. 64).
h. PROP 102 is a simple amendment that lets the people decide . . . . 2008
Ballot Proposition Guide at 33 (Dfs. Ex. 64).
i. If we do not . . . put this into our states constitution, further on down the
road, it will leave too much leeway for unelected judges to change it to how
they want, not what we, the people of Arizona, want. Do not let what
happened in California repeat itself in Arizona. 2008 Ballot Proposition
Guide at 33 (Dfs. Ex. 64).
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j. By passing this Marriage Amendment to the Constitution, we take away
the power of activist judges to over-rule our law, and to dictate to us what a
marriage means. 2008 Ballot Proposition Guide at 33 (Dfs. Ex. 64).
k. A YES vote keeps the essential meaning of marriage in the hands of the
people of Arizona. 2008 Ballot Proposition Guide at 33 (Dfs. Ex. 64).
l. [T]he California Supreme Court (by a narrow vote of 4 judges to 3) voted
to redefine marriage. . . . The California decision shows why the Arizona
Constitution needs to reaffirm marriage: The same thing can happen here.
Nothing stops an Arizona court from striking down Arizonas marriage
laws and redefining marriage, just as the courts did in California. 2008
Ballot Proposition Guide at 33 (Dfs. Ex. 64).
m. A YES vote prevents judges from redefining marriage. The people of
Arizona have the right to decide the future of marriage in Arizona. 2008
Ballot Proposition Guide at 33 (Dfs. Ex. 64).
n. California shows why we need this amendment. California had a law
saying that marriage is between a man and a woman, but the California
Supreme Court struck it down. Without this amendment, the same thing can
happen here. The Arizona Supreme Court has never addressed this issue.
This amendment allows the people to decide before the judges do. 2008
Ballot Proposition Guide at 34 (Dfs. Ex. 64).
31. The People approved the Marriage Amendment by a vote of 1,258,355 to
980,753. Arizona Secretary of State, 2008 General Election Official Canvass 15, Dec. 1,
2008 (Dfs. Ex. 21).
32. The Marriage Amendment did not establish or alter the man-woman
definition of marriage in Arizona. See e.g. Ariz. Rev. Stat. 25-125(A), 25-101(C);
Non-Exhaustive Compendium of Man-Woman Marriage Laws (Dfs. Ex. 12); Forsythe,
271 P. at 866; Tenney, 11 P. at 477.

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The States Interest in Connecting Children to
Their Biological Mother and Their Biological Father
33. In general, the optimal childrearing environment is a home headed by a
married biological mother and biological father. See Amicus Brief of Professors of Social
Science at 4, Kitchen v. Herbert, No. 13-4178 (10th Cir. Feb. 10, 2014) (Dfs. Ex. 22).
This is reflected in many scholarly reviews of social science. See Wilcox, Marriage
Matters III, supra, at 11 (Dfs. Ex. 8) (The intact, biological, married family remains the
gold standard for family life in the United States, insofar as children are most likely to
thriveeconomically, socially, and psychologicallyin this family form.); Kristin
Anderson Moore et al., Marriage from a Childs Perspective: How Does Family
Structure Affect Children, and What Can We do About It?, Child Trends Research Brief 6
(J une 2002) (Dfs. Ex. 23) ([R]esearch clearly demonstrates that family structure matters
for children, and the family structure that helps children the most is a family headed by
two biological parents in a low-conflict marriage.); id. at 1-2 ([I]t is not simply the
presence of two parents . . . , but the presence of two biological parents that seems to
support childrens development.). It is also confirmed by the most reliable studies. See
Mathew D. Bramlett et. al., Adverse Family Experiences Among Children in Nonparental
Care, 2011-2012, National Health Statistics Report No. 74, Center for Disease Control
and Prevention, May 7, 2014, at 3, available at http://www.cdc.gov/nchs/data/nhsr/
nhsr074.pdf (Dfs. Ex. 24) (Children living with one biological parent were between 3
and 8 times as likely as children living with two biological parents to have experienced
. . . caregiver violence[] or caregiver incarceration or to have lived with a caregiver with
mental illness or an alcohol or drug problem.); Wendy D. Manning & Kathleen A.
Lamb, Adolescent Well Being in Cohabiting, Married, and Single-Parent Families, 65 J .
Marriage & Fam. 876, 890 (2003) (Dfs. Ex. 25) (Adolescents in married, two-
biological-parent families generally fare better than children in any of the family types
examined here, including single-mother, cohabiting stepfather, and married stepfather
families. The advantage of marriage appears to exist primarily when the child is the
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biological offspring of both parents. Our findings are consistent with previous work
. . . .); Sara McLanahan & Gary Sandefur, Growing Up with a Single Parent: What
Hurts, What Helps 1 (1994) (Dfs. Ex. 26) (Children who grow up in a household with
only one biological parent are worse off, on average, than children who grow up in a
household with both of their biological parents, regardless of the parents race or
educational background, regardless of whether the parents are married when the child is
born, and regardless of whether the resident parent remarries.).
34. In general, children raised in stepfamilies do not fare as well as children
raised by their biological parents in an intact family. See, e.g., Amicus Brief of Professors
of Social Science at 15-16, Kitchen v. Herbert, No. 13-4178 (10th Cir. Feb. 10, 2014)
(Dfs. Ex. 22); Paul Amato, The Impact of Family Formation Change on the Cognitive
Social and Emotional Well-Being of the Next Generation, 15 The Future of Children 75,
80 (2005) (Dfs. Ex. 27) ([T]he marriage of a single parent (to someone other than the
childs biological parent) does not appear to improve the functioning of most children.);
Cynthia C. Harper & Sara S. McLanahan, Father Absence and Youth Incarceration, 14
J ournal of Research on Adolescence 369, 390 (2004) (Dfs. Ex. 28) (We expected that in
a father-absent household, remarriage of the custodial parent might help a child by
providing household income and adult supervision or a role model of the opposite sex,
but youths in stepparent households faced incarceration odds almost 3 times as high as
those in [biological] mother-father families, and significantly higher than those in single-
parent households, even though stepfamilies were relatively well off on average.); David
Popenoe, Life Without Father 150 (1996) (Dfs. Ex. 29) (stating that it surely make[s] a
difference in childrearing whether the father is biologically related to the child);
Wilson, supra, at 169-70 (Dfs. Ex. 9) (discussing studies showing disparities between
children raised by stepfathers and children raised by their biological fathers); W.
Bradford Wilcox et al., eds., Why Marriage Matters 7, 14 (2d ed. 2005) (Dfs. Ex. 30)
(hereafter Wilcox, Marriage Matters II) (noting that girls raised in stepfamilies are
much more likely to experience premature sexual development often leading to teenage
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pregnancy); Witherspoon Institute, Marriage and the Public Good: Ten Principles 10-11
(2008) (Dfs. Ex. 31) (noting that boys raised in stepfamilies are much more likely to
display antisocial behavior).
35. Every set of biological parents provides their children with a parent of each
sex, and [t]he burden of social science evidence supports the idea that gender-
differentiated parenting is important for human development. Popenoe, supra, at 146
(Dfs. Ex. 29); see also Amicus Brief of Professors of Social Science at 4-12, Kitchen v.
Herbert, No. 13-4178 (10th Cir. Feb. 10, 2014) (Dfs. Ex. 22). Indeed, [t]he best
psychological, sociological, and biological research confirms that men and women
bring different gifts to the parenting enterprise, [and] that children benefit from having
parents with distinct parenting styles. W. Bradford Wilcox, Reconcilable Differences:
What Social Sciences Show About the Complementarity of the Sexes & Parenting,
Touchstone, Nov. 2005, at 36 (Dfs. Ex. 32).
36. The weight of scientific evidence seems clearly to support the view that
fathers matter. Wilson, supra, at 169 (Dfs. Ex. 9). A substantial body of research now
indicates that high levels of involvement by fathers in two-parent families are associated
with a range of desirable outcomes in children . . . . The converse is also true: low levels
of involvement are associated with a range of negative outcomes. Adrienne Burgess,
Fathers and Public Services, in Daddy Dearest?, Institute for Public Policy Research 57
(Kate Stanley ed., 2005) (Dfs. Ex. 33); see, e.g., J ane Mendle et al., Associations Between
Father Absence and Age of First Sexual Intercourse, 80 Child Dev. 1463, 1463 (2009)
(Dfs. Ex. 34) (Compared to children raised by both biological parents, children who are
raised in households without their biological father present exhibit both an earlier age of
first intercourse and significantly increased rates of teenage pregnancy.); Bruce J . Ellis,
Timing of Pubertal Maturation in Girls: An Integrated Life History Approach, 130
Psychology Bulletin 920, 943 (2004) (Dfs. Ex. 35) ([G]irls from father-absent homes
tend to experience earlier pubertal development than do girls from father-present homes,
and the earlier father absence occurs, the greater the effect.); Eirini Flouri & Ann
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Buchanan, The Role of Father Involvement in Childrens Later Mental Health, 26 J .
Adolescence 63, 63 (2003) (Dfs. Ex. 36) (Father involvement . . . protect[s] against adult
psychological distress in women.); Bruce J . Ellis et al., Does Father Absence Place
Daughters at Special Risk for Early Sexual Activity and Teenage Pregnancy?, 74 Child
Dev. 801, 801 (2003) (Dfs. Ex. 37) (Greater exposure to father absence [is] strongly
associated with elevated risk for early sexual activity and adolescent pregnancy.);
Popenoe, supra, at 139-63 (Dfs. Ex. 29). President Obama, in particular, has lamented the
great social costs of fatherlessness:
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.
Barack Obama, Obamas Speech on Fatherhood (J un. 15, 2008), transcript available at
http://www.realclearpolitics.com/articles/2008/06/obamas_speech_on_fatherhood.html
(Dfs. Ex. 38).
37. In addition to tangible deficiencies in development, children raised without
a biological parent often experience intangible losses. Studies have shown 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. Elizabeth
Marquardt et al., My Daddys Name is Donor: A New Study of Young Adults Conceived
Through Sperm Donation, Institute for American Values, at 7 (Dfs. Ex. 39).
38. The vast majority of married man-woman couples do in fact create
children. See Anjani Chandra et al., Fertility, Family Planning, and Reproductive Health
of U.S. Women: Data from the 2002 National Survey of Family Growth, Centers for
Disease Control and Prevention (Dec. 2005), available at http://www.cdc.gov/nchs/data/
series/sr_23/sr23_025.pdf (Dfs. Ex. 40) (showing on Table 69 that 6,925 of 7,740
nearly 90%of married women between the ages of 40 and 44 have given birth); Anjani
Chandra et al., Infertility and Impaired Fecundity in the United States, 1982-2010: Data
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from the National Survey of Family Growth, Centers for Disease Control and Prevention
(Aug. 14, 2013) (Dfs. Ex. 41) (indicating on Page 1 that only 6% of married women
between the ages of 15 to 44 are classified as infertile).
39. 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. See, e.g., Elizabeth Wildsmith et al.,
Childbearing Outside of Marriage: Estimates and Trends in the United States, Child
Trends Research Brief 5 (Nov. 2011), available at http://www.childtrends.org/wp-
content/uploads/2013/02/Child_Trends-2011_11_01_RB_NonmaritalCB.pdf (Dfs. Ex.
42) ([P]romoting marriage among unmarried parents remain[s] [an] important goal[] of
federal and state policies and programs designed to improve the well-being of women
and children . . . .); Wendy D. Manning et al., The Relative Stability of Cohabiting and
Marital Unions for Children, 23 Population Research & Poly Rev. 135, 135 (2004) (Dfs.
Ex. 43) ([C]hildren born to cohabiting parents experience greater levels of instability
than children born to married parents.).
The States Interest in Unintended Children
40. Unintended pregnancies account for nearly half of total births and nearly
seventy percent of out-of-wedlock births in the United States. See Lawrence B. Finer &
Mia R. Zolna, Unintended Pregnancy in the United States: Incidence and Disparities,
2006, 84 Contraception 478, 481 Table 1 (2011) (Dfs. Ex. 44).
41. Unintended births out of wedlock are associated with negative outcomes
for children. Wildsmith, supra, at 5 (Dfs. Ex. 42).
42. Children born from unplanned pregnancies where their mother and father
are not married to each other are at a significant risk of being raised outside stable family
units headed by their mother and father jointly. See William J . Doherty et al., Responsible
Fathering, 60 J . Marriage & Fam. 277, 280 (1998) (Dfs. Ex. 45) (stating that [i]n nearly
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all cases, children born outside of marriage reside with their mothers and experience
marginal father presence).
Projected Long-Term Consequences of Redefining Marriage
43. 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. See Robert N. Bellah et al., The Good Society 10
(1991) (Dfs. Ex. 46) (In its formal sociological definition, an institution is a pattern of
expected action of individuals or groups enforced by social sanctions, both positive and
negative.); Peter L. Berger & Thomas Luckmann, The Social Construction of Reality: A
Treatise in the Sociology of Knowledge 72 (1966) (Dfs. Ex. 47) (Institutions . . . , by the
very fact of their existence, control human conduct by setting up predefined patterns of
conduct, which channel it in one direction as against the many other directions that would
theoretically be possible.); A.R. Radcliffe-Brown, Structure and Function in Primitive
Society 10-11 (1952) (Dfs. Ex. 48) (stating that the conduct of persons in their
interactions with each other is controlled by norms, rules or patterns shaped by social
institutions).
44. Marriage in particular is a pervasive and influential social institution,
entailing a complex set of personal values, social norms, religious customs, and legal
constraints that regulate . . . particular intimate human relation[s]. Allen, Economic
Assessment, supra, at 949-50 (Dfs. Ex. 7).
45. Although the law did not create marriage, its recognition and regulation of
that institution has a profound effect on mold[ing] and sustain[ing] it. See Carl E.
Schneider, The Channelling Function in Family Law, 20 Hofstra L. Rev. 495, 503 (1992)
(Dfs. Ex. 49).
46. Many genderless-marriage advocates acknowledge that redefining marriage
would drastically change marriage and its public meaning. See, e.g., William N.
Eskridge, J r. & Darren R. Spedale, Gay Marriage: For Better or for Worse? What Weve
Learned from the Evidence 19 (2006) (Dfs. Ex. 50) ([E]nlarging the concept [of
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marriage] to embrace same-sex couples would necessarily transform it into something
new. (internal quotation marks omitted)); E.J . Graff, Retying the Knot, The Nation, J un.
24, 1996, at 12 (Dfs. Ex. 51) (noting that after marriage is redefined, that venerable
institution will ever after stand for sexual choice, for cutting the link between sex and
diapers); J oseph Raz, Ethics in the Public Domain 23 (1994) (Dfs. Ex. 52) (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.); Michelangelo Signorile, Bridal Wave, OUT Magazine, Dec./J an.
1994, at 161 (Dfs. Ex. 53) (urging same-sex couples to demand the right to marry in
order to radically alter an archaic institution).
47. Arizona and its voters may logically project that, over time, the redefinition
of marriage would likely lead to (1) an increase in children being raised apart from their
fathers, (2) a decrease in marriages among man-woman couples who are having or raising
children, and (3) an increase in marital instability. See Amicus Brief of Professor Robert
P. George et al. at 14-24, Kitchen v. Herbert, No. 13-4178 (10th Cir. Feb. 10, 2014) (Dfs.
Ex. 54); Amicus Brief of Professor Alan Hawkins et al. at 16-28, Kitchen v. Herbert, No.
13-4178 (10th Cir. Feb. 10, 2014) (Dfs. Ex. 55).
48. While the redefinition of marriage is still a recent innovation, available data
support these projections about a decrease in marriages among man-woman couples who
are having or raising children and an increase in marital instability. The most recent year
for which national data about marriage rates are available is 2011. At the beginning of
2011, only five States (Connecticut, Iowa, Massachusetts, New Hampshire, and
Vermont) had redefined marriage, and every one of those States experienced a decline in
its marriage rate from 2010 to 2011. See Centers for Disease Control and Prevention,
National Vital Statistics System, Marriage Rates by State: 1990, 1995, and 1999-2011,
available at http://www.cdc.gov/nchs/data/dvs/marriage_rates_90_95_99-11.pdf (Dfs.
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Ex. 56). Also, Massachusettss divorce rate was 22.7% higher in 2011 (the most recent
year for which data are available) than it was in 2004 (the year that Massachusetts
redefined marriage). See Centers for Disease Control and Prevention, National Vital
Statistics System, Divorce Rates by State: 1990, 1995, and 1999-2011, available at
http://www.cdc.gov/nchs/data/dvs/divorce_rates_90_95_99-11.pdf (Dfs. Ex. 57). The
national divorce rate, in contrast, was 2.7% lower when comparing those two years. See
Centers for Disease Control and Prevention, National Vital Statistics System, National
Marriage and Divorce Rate Trends, available at http://www.cdc.gov/nchs/nvss/
marriage_divorce_tables.htm (Dfs. Ex. 58).
49. Parental divorce is . . . linked to a range of poorer academic and behavioral
outcomes among children. Moore, supra, at 6 (Dfs. Ex. 23).
50. Significant social costs are associated with unwed childbearing and divorce.
See Benjamin Scafidi, The Taxpayer Costs of Divorce and Unwed Childbearing: First-
Ever Estimates for the Nation and All Fifty States 5 (2008) (Dfs. Ex. 59) (indicating that
divorce and unwed childbearing cost[] U.S. taxpayers at least $112 billion each and
every year, or more than $1 trillion each decade (emphasis omitted)) see also Robert P.
George et al., What is Marriage? 45-46 (2012) (Dfs. Ex. 60) (discussing other studies).
51. Researchers have observed that the culture of fatherhood and the conduct
of fathers change from decade to decade as social and political conditions change.
Doherty, supra, at 278 (Dfs. Ex. 45). This inconstant history of fatherhood has led many
scholars to surmise that fathering is more sensitive than mothering to contextual forces.
Id.
52. No-fault divorce laws increased divorce rates above their historical trends.
See Douglas W. Allen & Maggie Gallagher, Does Divorce Law Affect the Divorce Rate?
A Review of Empirical Research, 1995-2006, Institute for Marriage and Public Policy
Research Brief 1 (J ul. 2007), available at http://www.marriagedebate.com/pdf/imapp.
nofault.divrate.pdf (Dfs. Ex. 61); Allen M. Parkman, Good Intentions Gone Awry: No-
Fault Divorce and the American Family 91-92 (2000) (Dfs. Ex. 62).
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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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