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Peggy A. Tomsic (3879) tomsic@mgpclaw.com James E. Magleby (7247) magleby@mgpclaw.com Jennifer Fraser Parrish (11207) parrish@mgpclaw.com MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101-3605 Telephone: 801.359.9000 Facsimile: 801.359.9011 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually, KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, Plaintiffs, v. GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah; and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendants. PLAINTIFFS’ OPPOSITION TO MOTION OF THE GOVERNOR AND ATTORNEY GENERAL FOR SUMMARY JUDGMENT

Case No. 2:13-cv-00217-RJS Honorable Robert J. Shelby

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TABLE OF CONTENTS Page

INTRODUCTION .............................................................................................................ix RESPONSE TO STATEMENT OF ELEMENTS AND UNDISPUTED MATERIAL FACTS .................................................................................................................. x RESPONSE TO THE STATE DEFENDANTS’ BACKGROUND ....................................xv STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS .............................xv ARGUMENT .................................................................................................................... 1 I. THIS COURT MUST DECIDE WHETHER UTAH’S MARRIAGE DISCRIMINATION LAWS VIOLATE THE FOURTEENTH AMENDMENT, AS DOING SO IS REQUIRED BY, COMPORTS WITH, AND DOES NOT DISRUPT, THE FEDERAL BALANCE OF POWERS ........................................... 1 A. B. The Federal Balance Requires That This Court Decide This Case ........... 2 The Regulation of Marriage Is Not Exclusively the Province of the States, as State Laws Are Subject to Constitutional Guarantees, Including Under the Fourteenth Amendment ............................................. 3 The Windsor Decision Is Not Based on Federalism, Nor Does Windsor Mandate This Court’s Deference to Utah’s Unconstitutional Laws .......................................................................................................... 4 Windsor Requires This Court To Invalidate Utah’s Marriage Discrimination Laws ................................................................................... 6

C.

D. II. III.

BAKER v. NELSON IS IRRELEVANT .................................................................. 8 THE FUNDAMENTAL RIGHT TO MARRIAGE PROTECTED BY THE DUE PROCESS CLAUSE ENCOMPASSES THE RIGHT OF PLAINTIFFS TO MARRY THE PERSON OF THEIR CHOICE ................................................ 11 A. B. Plaintiffs Are Not Advocating a “New” Fundamental Right, But Equal Access to an Already-Existing Fundamental Right ........................ 12 That the Right to Marry Itself Is Deeply Rooted in This Nation’s History and Tradition Is Sufficient for This Court To Determine That

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the Marriage Discrimination Laws Violate Plaintiffs’ Fundamental Right to Marriage Under the Due Process Clause ................................... 14 C. Civil Marriage Is Not a Static Institution, and the Fundamental Right to Marriage Is Not Per Se Bound to Any Particular Historical or Traditional Form ....................................................................................... 16 This Court Must Invalidate Utah’s Marriage Discrimination Laws Under the Due Process Clause of the Fourteenth Amendment ............... 20

D. IV.

POST WINDSOR, UTAH’S MARRIAGE DISCRIMINATION LAWS FAIL UNDER THE EQUAL PROTECTION CLAUSE BECAUSE PREJUDICE IS IRRATIONAL, AND UTAH’S LAWS ARE BASED ON PREJUDICE .................. 21 A. Under Windsor, the State of Utah Bears the Burden of Showing Its Marriage Discrimination Laws Are Not Based Solely on Prejudice and Cannot Do So ................................................................................... 23

V.

CLASSIFICATIONS BASED ON SEXUAL ORIENTATION REQUIRE HEIGHTENED SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE ...... 28 A. Faithful Application of the Supreme Court’s Binding Precedent Requires Heightened Scrutiny of Classifications Based on Sexual Orientation ............................................................................................... 29 The Relevant Supreme Court Case Law Suggests That Heightened Scrutiny Should Apply to Classifications Based on Sexual Orientation ............................................................................................... 31 The Tenth Circuit's Decision in Price-Cornelison v. Brooks Does Not Prohibit This Court From Finding Sexual Orientation Classifications Are at Least Quasi-Suspect ............................................. 35

B.

C.

VI. VII.

CLASSIFICATIONS BASED ON GENDER ALSO REQUIRE HEIGHTENED SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE ...... 39 UTAH’S MARRIAGE DISCRIMINATION LAWS FAIL EVEN UNDER RATIONAL BASIS REVIEW ............................................................................... 41 A. There Is No Rational Relationship Between Excluding Same-Sex Couples From Marriage and the Promotion of Opposite-Sex Marriage................................................................................................... 43 1. The Relevant Rational Relationship Inquiry Is Not Whether It Is Rational for Utah to Permit Opposite-Sex Marriage, But

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Rather Whether It Is Rational for Utah to Exclude Same-Sex Couples from Civil Marriage to Achieve That Goal........................ 44 2. As a Matter of Law, Any Purported Interest in Encouraging Opposite-Sex Couples to Marry (and Encouraging the Incidents of Such Marriages) Is Not Rationally Related to Utah’s Marriage Discrimination Laws ............................................ 46

B.

Utah’s Marriage Discrimination Laws Are Not Rationally Related to Any Interest in Bettering the Lives of Utah’s Children .............................. 50 1. Utah’s Marriage Discrimination Laws Are Not Rationally Related to any Interest in Promoting Responsible Procreation .................................................................................... 53 Utah's Marriage Discrimination Laws Are Not Rationally Related to an Interest in Promoting Optimal Parenting and Childrearing ................................................................................... 60

2.

C.

Preserving Tradition, and Avoiding the Conse uences of Change, Are Not In and of Themselves Legitimate Goals of the State ............ 65 1. 2. Preserving “Traditional” Marriage, Solely for Tradition’s Sake, Is Not a Legitimate Goal of the State .................................. 66 Utah’s Marriage Discrimination Laws Are Not Rationally Related to the Purported Interest in Proceeding with Caution When Implementing Social Changes ............................................ 68

D. VIII.

Utah’s Marriage Discrimination Laws Damage the State and SameSex Couples ............................................................................................ 70

THE STATE OF UTAH MAY NOT CATEGORICALLY DENY RECOGNITION OF SAME-SEX MARRIAGES PERFORMED IN OTHER STATES ............................................................................................................. 72 THE STATE DEFENDANTS DO NOT DENY THAT INJUNCTIVE RELIEF IS AVAILABLE TO PLAINTIFFS UNDER 42 U.S.C. § 1983, AND A DETERMINATION AS TO WHETHER PLAINTIFFS WOULD BE ENTITLED TO ANY MONETARY AMOUNT IS PREMATURE .......................... 75

IX.

CONCLUSION .............................................................................................................. 76

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TABLE OF AUTHORITIES Page Cases Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (plurality) ..................................................... 40 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed w/o op., 409 U.S. 810 (1972) .......................................................................................................... 8, 9, 10, 11 Baker v. State, 744 A.2d 864 (Vt. 1999) ........................................................................ 64 Bates v. Dep't of Corr. of Kan., 81 F.3d 1008 (10th Cir. 1996) ...................................... 37 Bo Hae Lee v. Mukasey, 527 F.3d 1103 (10th Cir. 2008) ............................................. 44 Bond v. United States, 131 S. Ct. 2355 (2011) ....................................................... 72, 73 Bowers v. Hardwick, 478 U.S. 186 (1986)................................................................. 3, 32 Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) ....................... 75 Carey v. Population Services Int'l, 431 U.S. 678 (1977).................................................. 9 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ................................ 56, 68 Collins v. Harker Heights, 503 U.S. 115 (1992)............................................................. 12 Craig v. Boren, 429 U.S. 190 (1976) ............................................................................. 40 Eisenstadt v. Baird, 405 U.S. 438 (1972) .................................................................. 9, 56 Ex Parte Young, 209 U.S. 123 (1908) ........................................................................... 75 Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality) ....................................... 40 Garden State Equality v. Dow, No. Civ. A. MER-L-1729-11, 2012 WL 540608 (N.J. Super. Ct. Feb. 21, 2012) ............................................................................................ 9

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Golinski v. United States Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) ............................................................................................................................. 29, 46 Goodridge v. Dep’t Pub. Health, 79 N.E.2d 941 (Mass. 2003) ................................ 54, 64 Griswold v. Connecticut, 381 U.S. 479 (1965), ................................................. 14, 19, 55 Heller v. Doe, 509 U.S. 312 (1993) .............................................................. xii, 42, 54, 66 Hicks v. Miranda, 422 U.S. 332 (1975)...................................................................... 8, 11 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ............................................................. 69 Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985) ......................................... 56 Ill. State Bd. of Elec. v. Socialist Workers Party, 440 U.S. 173 (1979) .......................... 11 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) ........................................................ 29 In re Kandu, 315 B.R.123 (Bankr. W.D. Wash. 2004) ..................................................... 9 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ........................................................... 29 Johnson v. Robinson, 415 U.S. 361 (1974)................................................. 56, 57, 58, 59 Jones v. Bates, 127 F.3d 839 (9th Cir. 1997) ................................................................ 11 Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 425-31 (Conn. 2008)...................... 29 Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................... passim Loving v. Virginia, 388 U.S. 1 (1967) ...................................................................... passim Lyng v. Int’l Union, 485 U.S. 360 (1988)........................................................................ 41 Mandel v. Bradley, 432 U.S. 173 (1979) ....................................................................... 10 Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) .... 46 McLaughlin v. Florida, 379 U.S. 184 (1964) .................................................................. 10 Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) ........................................ 40

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Muller v. Oregon, 208 U.S. 412 (1908).......................................................................... 67 Naim v. Naim, 350 U.S. 985 (1956)............................................................................... 10 Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012) ........ 29, 54, 65 Perry v. Brown, 671 F.3d 1052 (2012) .......................................................................... 69 Perry v. Schwarzenegger, 704 F. Supp. 2d 921(N.D. Cal. 2010) ........................... passim Plessy v. Ferguson, 163 U.S. 537 (1896)...................................................................... 67 Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259 (2d Cir. 1967) ........................................................................................................................... 8 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) ....................... 35, 36, 37, 38 Roe v. Wade, 410 U.S. 113 (1973) ................................................................................. 9 Romer v. Evans, 517 U.S. 620 (1996).................................................................... passim Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ........................... 9, 11 Soto-Lopez v. N.Y. City Civil Serv. Comm’n, 755 F.2d 266 (2d Cir. 1985) .................... 11 Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002) ................ 11 Turner v. Safley, 482 U.S. 78 (1987) ....................................................... 9, 13, 14, 18, 54 United States Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) .......................... 42, 56, 58 United States v. Graham, 87 F. Supp. 237 (D. Mich. 1949) .......................................... 17 United States v. Rickett, No. 11-2165, 2013 U.S. App. LEXIS 18464, at *23-24 (10th Cir. Sept. 5, 2013) ............................................................................................................ 37 United States v. Virginia, 518 U.S. 515 (1996) ........................................................ 39, 40 United States v. Windsor, 133 S. Ct. 2675 (2013) .................................................. passim Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ....................................................... 29, 46

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Walmer v. Department of Defense, 52 F.3d 851 (10th Cir. 1995) ........................... 36, 38 Washington v. Glucksberg, 521 U.S. 702 (1997) ......................................... xii, 14, 15, 16 Williams v. Illinois, 399 U.S. 235 (1970) ........................................................................ 66 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) .......................................... passim Zablocki v. Redhail, 434 U.S. 374 (1978) .................................................. 3, 9, 12, 13, 55 Constitutional Provisions U.S. Const., Art. III ...................................................................................................... 2, 6 U.S. Const., Amend. I......................................................................................................ix U.S. Const., Amend. V ........................................................................................... passim U.S. Const., Amend. X ............................................................................................ 1, 2, 5 U.S. Const., Amend. XI ................................................................................................. 75 U.S. Const., Amend. XIV ........................................................................................ passim Utah Const., Art. I, § 29 .......................................................................................... passim Statutes 1 U.S.C. § 7 (DOMA § 3)........................................................................................ passim 28 U.S.C. § 1738C (DOMA § 2) .................................................................................... 72 42 U.S.C. § 1983 ........................................................................................................... 75 42 U.S.C. § 1988 ........................................................................................................... 76 Utah Code § 30-1-2 ............................................................................................. x, 28, 44 Utah Code § 30-1-4 ....................................................................................................... 10 Utah Code § 30-1-4.1 .......................................................................................... x, 28, 45

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Rules Local Rule DUCivR 56-1 ...................................................................................... x, xii, xv

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Plaintiffs Derek Kitchen, Moudi Sbeity, Karen Archer, Kate Call, Laurie Wood, and Kody Partridge (collectively, “Plaintiffs”), by and through their counsel of record, Magleby & Greenwood, P.C., respectfully submit this Plaintiffs’ Opposition to Motion of the Governor and Attorney General for Summary Judgment. INTRODUCTION Defendants Gary R. Herbert and John Swallow (collectively, the “State Defendants”) incorrectly contend that this case is about “who decides,” and whether permitting opposite-sex couples to marry is rational. However, contrary to these assertions, the issue for this Court to decide is whether the State of Utah’s exclusion of same-sex couples from civil1 marriage, and any equivalent for civil marriage, violates the Fourteenth Amendment of the United States Constitution (the “Constitution”). Such constitutional questions are expressly relegated to this Court under our federal system of government.

To be clear, this case does not implicate any First Amendment right of individuals or institutions that oppose same-sex marriage on religious or moral grounds. Plaintiffs seek the right to civil marriage sanctioned by the State, not religious marriage. Religious groups can, of course, refuse any couple’s re uest to be married or otherwise decline to recognize, for religious purposes, a civil marriage permitted by law. Religious organizations opposed to same-sex marriage may and do refuse to recognize such marriages, which are now legal in many states. This is no different than the longstanding refusal of the Roman Catholic Church to recognize second marriages of Catholics who divorce, or refusal of Orthodox Judaism to perform religious marriages between Jews and non-Jews. The marriage equality sought by Plaintiffs will not change the rights of religious individuals or groups. However, “[t]o the extent [the State] argue[s] that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying . . . those individuals’ moral views are an insufficient basis upon which to enact a legislative classification.” Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1000 (N.D. Cal. 2010).

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For the reasons set forth, infra, and in Plaintiffs’ Motion for Summary Judgment, Docket No. 32 (“Plaintiffs’ Motion”), which is expressly incorporated herein, the State Defendants are not entitled to summary judgment under United States v. Windsor, 133 S. Ct. 2675 (2013), and because the State of Utah has not made a showing that its Marriage Discrimination Laws2 survive heightened scrutiny. Rational basis review is not the applicable standard. Even if it were, the question would not be whether the union of a man and woman in marriage is rationally related to a legitimate state interest, but whether the exclusion of same-sex couples from marriage (or its equivalent) is rationally related to a legitimate state interest. As explained in this opposition, including for the same reasons the Defense of Marriage Act (“DOMA”) was found unconstitutional by the United States Supreme Court (the “Supreme Court”) in Windsor, Utah’s Marriage Discrimination Laws do not survive even this lowest level of constitutional scrutiny. Accordingly, this Court must deny the State Defendants’ motion. RESPONSE TO STATEMENT OF ELEMENTS AND UNDISPUTED MATERIAL FACTS Pursuant to Local Rule DUCivR 56-1(c)(2)(A) & (B), Plaintiffs provide a response to each legal element and material fact stated by the State Defendants: 1. “The Plaintiffs are same-sex couples, with two of those couples desiring to

marry in this State and with one of those couples having previously married in Iowa and now desiring this State to recognize that foreign marriage. Complaint (Doc. 2) ¶¶ 1-2, 58[.]” “Marriage Discrimination Laws” refers, collectively, to (1) Utah Code § 30-1-2; (2) Utah Code § 30-1-4.1; and (3) Utah Constitution, Article I, § 29 (“Amendment 3”).
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RESPONSE: Undisputed. 2. “Accordingly, the only issue is whether the Fourteenth Amendment’s

Equal Protection Clause or its Due Process Clause empowers this Court to change the State’s definition of marriage from the union of a man and a woman to the union of two persons regardless of gender.” RESPONSE: Disputed. In the first instance, Plaintiffs object to the State Defendants’ continued mischaracterization of marriage between individuals of the same sex as merely a marriage of “any two persons.” Just as with marriage between people of the opposite sex, gay and lesbian individuals seeking to marry desire to have the State sanction their long-term, loving, and committed relationships with the partner of their choice, and to have the protections, responsibilities, and benefits that flow from marriage. The selection of that partner is not fortuitous or random, but the result of a deeply personal, and constitutionally-protected, choice. Same-sex couples seeking to enter into marriage are not just “any two persons,” any more than opposite-sex couples seeking to enter marriage are just “any two persons,” and the Court should reject this language, which belittles and disparages Plaintiffs’ relationships. Plaintiffs further object to the State Defendants’ continued mischaracterization of Utah’s Marriage Discrimination Laws as simply a “definition of marriage [as] the union of a man and a woman.” Plaintiffs do not seek to change, impede, or denigrate the union of a man and a woman through marriage. They merely want to be able to marry, too. As such, Plaintiffs do not seek to change that marriage may be the union of a man and

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woman, but to strike down the State’s mandate that marriage may only be the union of a man and a woman, and that same-sex couples may not even enter into a relationship that is legally equivalent to marriage. Accordingly, the issue in this case is whether the State of Utah’s exclusion of same-sex couples from marriage (and any equivalent for marriage) violates the Fourteenth Amendment. 3. “To prevail on their due process and e ual protection claims, the Plain tiffs

must prove that the definition of marriage as the union of a man and a woman is irrational; that it does not rationally relate to a legitimate State interest. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997); Heller v. Doe, 509 U.S. 312, 320 (1993) . . . .” RESPONSE: Disputed. Under rational basis review, the question is not whether the union between a woman and a man is “irrational,” as the State Defendants contend, but whether mandating that marriage be only between a woman and a man is rationally related to a legitimate governmental interest. However, as discussed in Plaintiffs’ Motion, rational basis review is not the applicable standard.3 4

Pursuant to Local Rule DUCivR 56-1(c)(2)(D), “If there are additional legal elements not stated by the moving party that the non-moving party contends preclude summary judgment,” then the non-moving party is to “state each such element along with citation to legal authority that supports the element (without argument).” Plaintiffs have already set forth in their pending motion for summary judgment the legal elements and undisputed material facts which entitle them to summary judgment, and which also preclude the Court from granting the State Defendants’ motion for summary judgment. In lieu of repeating this information in this opposition, Plaintiffs refer the Court to the “Statement of Elements” and “Statement of Undisputed Material Facts” in their pending motion for summary judgment. See Plaintiffs’ Motion at viii-xxxi. In addition, Plaintiffs
(continued...)

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First, under the binding analysis in United States v. Windsor, 133 S. Ct. 2675 (2013), Plaintiffs prevail because Utah’s Marriage Discrimination Laws violate the Equal Protection Clause of the Fourteenth Amendment under any standard of review, because the design, purpose, and effect of these laws are to single out same-sex couples to impose a disability on them, and to treat them unequally. See Plaintiffs’ Motion at 1826. Under the analysis of the Supreme Court in Windsor, such laws are irrational, and no legitimate purpose overcomes their purpose and effect to disparage and injure. See id. Furthermore, the State’s refusal to recognize same-sex marriages performed in other states is likewise unconstitutional under Windsor. See id. at 37-39. Second, Utah’s Marriage Discrimination Laws burden Plaintiffs’ fundamental right to marry the person of their choice, or to have their out-of-state marriage to the person of their choice recognized by the State. See id. at 1-16. Therefore, under the Due Process Clause of the Fourteenth Amendment, the State must show that its laws are narrowly tailored to meet a compelling governmental interest, or Plaintiffs prevail. See id. As shown in Plaintiffs’ Motion and this opposition, the State Defendants have not met that burden.

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now provide, infra, additional undisputed material facts to rebut the arguments of the State. For the reasons stated in this section (which are discussed in more detail in this opposition, infra, and in Plaintiffs’ Motion), Plaintiffs do not agree with the State Defendants that the burden of proof is on Plaintiffs. However, as also discussed in this opposition, even if rational basis were the proper level of scrutiny, Utah’s Marriage Discrimination Laws fail even under this analysis.
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Third, because Utah’s Marriage Discrimination Laws deny Plaintiffs e ual access to a fundamental right, under the Equal Protection Clause of the Fourteenth Amendment, the State must show that its laws are narrowly tailored to meet a compelling governmental interest, or Plaintiffs prevail. See id. at 16-18. Again, the State Defendants have not met their burden, as demonstrated in this opposition and Plaintiffs’ Motion. Finally, Utah’s Marriage Discrimination Laws create classifications based on gender and/or sexual orientation that are subject to heightened scrutiny, requiring that the State at least demonstrate the classifications are substantially related to an important governmental interest, or Plaintiffs prevail. See id. at 26-37. As shown in this opposition and Plaintiffs’ Motion, the State Defendants have not met their burden. 4. “Utah is therefore entitled to summary judgment by showing that the man-

woman definition of marriage is rationally related to a legitimate state interest.” RESPONSE: Disputed. See Responses to 2. and 3., supra. The State of Utah is not entitled to summary judgment under Windsor, and because the State of Utah has not made a showing that its Marriage Discrimination Laws survive heightened scrutiny. Again, rational basis review is not the applicable standard. Even if it were, the question would not be whether the union of a man and woman in marriage is rationally related to a legitimate state interest, but whether the exclusion of same-sex couples from marriage (or its equivalent) is rationally related to a

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legitimate state interest. As shown in this opposition, Utah’s Marriage Discrimination Laws do not survive even this lowest level of scrutiny. RESPONSE TO THE STATE DEFENDANTS’ BACKGROUND Pursuant to Local Rule DUCivR 56-1(b), the State Defendants have provided a background section, “whether disputed or not, for the limited purpose of providing background and context for the case . . . .” Because such facts are not presented for the purposes of supporting judgment as a matter of law, Plaintiffs do not respond to this background, for the sake of brevity, and because no response is required under the local rules of this Court. Accordingly, the lack of a response to these background statements should not be construed or deemed as either agreement or disagreement by Plaintiffs. STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS Pursuant to Local Rule DUCivR 56-1(c)(2)(C) & (D), Plaintiffs provide the following additional undisputed material facts to rebut the arguments of the State Defendants: The State of Utah Has No Interest in Differentiating Between Same-Sex and Opposite-Sex Unions 1. Being gay or lesbian has no inherent association with a person’s ability to

lead a happy, healthy, and productive life or to contribute to society. 8/20/12 Decl. of L.A. Peplau, Ph.D., in Sevcik v. Sandoval, No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada (“Peplau Decl.”), ¶¶ 11 & 29-32, attached hereto as Exhibit 5.

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2.

Same-sex couples closely resemble opposite-sex couples, including in the

ability to form loving, long-lasting relationships. Id., ¶¶ 12 & 33-37; 10/12/12 Supp. Decl. of L.A. Peplau, Ph.D., in Sevcik v. Sandoval, No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada (“Supp. Peplau Decl.”), ¶¶ 8-9, attached hereto as Exhibit 6; see also Brief of the American Psychological Association, the American Academy of Pediatrics, the American Medical Association, the American Psychiatric Association, the American Pyschoanalytic Association, the California Medical Association, the National Association of Social Workers and Its New York City and State Chapters, and the New York State Psychological Association as Amici Curiae on the Merits in Support of Affirmance (“APA Brief”), empirical data and scientifically vetted publications cited at 11-13 (Mar. 2013) (discussing sexual orientation and relationships), United States v. Windsor, No. 12-307 before the United States Supreme Court, attached hereto as Exhibit 10. 3. Marriage provides a range of social and other benefits and protections to

spouses, which contribute to enhanced psychological well-being, physical health, and longevity among married individuals, which benefits and protections are being denied to gay and lesbian individuals through bans on same-sex marriage. Peplau Decl., ¶¶ 13 & 38-52. 4. There is no scientific or empirical support for the notion that allowing

same-sex couples to marry has harmed, or would harm, opposite-sex marriages. Id., ¶¶ 15 & 56-63; Supp. Peplau Decl., ¶¶ 4-7; see also 10/9/13 Decl. of M.V.L. Badgett, Ph.D. (“Badgett Decl.”), ¶¶ 69-77 (discussing the empirical data of states and countries

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allowing same-sex marriage), attached hereto as Exhibit 1; Brief of Massachusetts, California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont, and Washington as Amici Curiae in Support of Appellants (“15 States’ Brief”), empirical data and scientifically vetted publications cited at 22-31 (Oct. 2013) (concluding that, based on the experience of states allowing same-sex marriage, “Speculation About the Erosion of the Institution of Marriage Is Demonstrably False”), Docket No. 24 in Sevcik v. Sandoval, Case No. 12-17668 in the United States Court of Appeals for the Ninth Circuit, attached hereto as Exhibit 13. 5. Children and adolescents brought up by same-sex couples are as likely to

be well-adjusted as are children brought up by opposite-sex couples. 11/21/13 Decl. of C.J. Patterson, Ph.D. (“Patterson Decl.”), ¶¶ 11 & 13-36, attached hereto as Exhibit 4; see also APA Brief, empirical data and scientifically vetted publications cited at 18-26 (“There Is No Scientific Basis for Concluding That Gay and Lesbian Parents Are Any Less Fit or Capable Than Heterosexual Parents, or That Their Children Are Any Less Psychologically Healthy and Well Adjusted”); Brief of the Amicus Curiae American Sociological Association in Support of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor (“ASA Brief”), empirical data and scientifically vetted publications cited at 6-14 (Feb. 2013) (“Scholarly Consensus Is Clear: Children of Same-Sex Parents Fare Just as Well as Children of Opposite-Sex Parents”), United States v.

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Windsor, No. 12-307 before the United States Supreme Court, attached hereto as Exhibit 11.5 6. Parental gender and sexual orientation are not related to the ability to be a

good parent or to the likelihood of healthy development among children and adolescents; further, no empirical evidence support has emerged for the view that the presence of both male and female role models in the home promotes children’s adjustment or well-being. Patterson Decl., ¶¶ 12 & 26-36; see also APA Brief, empirical data and scientifically vetted publications cited at 14-18 (“The Factors That Affect the Adjustment of Children Are Not Dependent on Parental Gender of Sexual Orientation”). 7. There were 3,861 same-sex couples living together in Utah in 2008,

raising approximately 2,900 children under 18 years of age; these children would benefit if their parents were permitted to marry. Patterson Decl., ¶¶ 40; see also Badgett Decl., ¶ 13 (3,909 same-sex couples living together in Utah in 2010). 8. Utah’s Marriage Discrimination Laws deprive same-sex couples in Utah,

and their children, of significant economic benefits associated with marriage, and impose substantial economic harm on them. Badgett Decl., ¶¶ 11 & 32-68.

The literature cited by the State Defendants and included in their Appendix does not constitute “legislative fact” – it is not “literature that reasonable and informed people consider when addressing such wide-reaching social, political and cultural matters.” State Defendants’ Motion at viii. Reasonable and informed people consider empirical data and scientific consensus, not moral viewpoints based on studies that do not pass scientific muster. See, e.g., Patterson Decl.; see also APA Brief & ASA Brief. There is no genuine dispute on these issues, as the State Defendants contend.

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9.

Utah’s Marriage Discrimination Laws also harm the State of Utah

economically, including because, over the next three years, the State of Utah will lose approximately $15.5 million in business revenue and $1 million in tax revenue that would have accrued as a result of weddings by same-sex couples, and the State’s economy will also suffer as Utah remains a comparatively less attractive location for highly ualified workers and business as a result of Utah’s discriminatory laws, among other harms to the State. Id., ¶¶ 15-31 10. Marriage is not a fixed institution, as marriage has changed dramatically

over time in the United States to meet changing social needs. 9/4/12 Decl. of N.F. Cott, Ph.D., in Sevcik v. Sandoval, No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada (“Cott Decl.”), ¶¶ 9 & 29-72, attached hereto as Exhibit 3.

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ARGUMENT For reasons set forth more fully in Plaintiffs’ Motion, Plaintiffs are entitled to summary judgment. These reasons also require the Court to deny the State Defendants’ motion for summary judgment. The State of Utah is not entitled to summary judgment under United States v. Windsor, 133 S. Ct. 2675 (2013), and because the State of Utah has not made a showing that its Marriage Discrimination Laws survive heightened scrutiny. Rational basis review is not the applicable standard. Even if it were, the question would not be whether the union of a man and woman in marriage is rationally related to a legitimate state interest, as the State Defendants contend, but whether the exclusion of same-sex couples from marriage (or its equivalent) is rationally related to a legitimate state interest. As shown in this opposition, Utah’s Marriage Discrimination Laws do not survive even this lowest level of scrutiny, and the State Defendants are not entitled to summary judgment. Accordingly, the instant motion must be denied. I. THIS COURT MUST DECIDE WHETHER UTAH’S MARRIAGE DISCRIMINATION LAWS VIOLATE THE FOURTEENTH AMENDMENT, AS DOING SO IS REQUIRED BY, COMPORTS WITH, AND DOES NOT DISRUPT, THE FEDERAL BALANCE OF POWERS

This case is not about federalism or the Tenth Amendment. Like United States v. Windsor, 133 S. Ct. 2675 (2013), this case is about equal protection and due process, and whether Utah’s Marriage Discrimination Laws run afoul of the guarantees provided to all United States citizens, wherever they reside, under the Fourteenth Amendment to the Constitution. As such, this is a case and controversy that is delegated to, and must

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be resolved by, this Court. Moreover, under the binding analysis in Windsor, this Court must deny the State Defendants’ motion, and decide this case in Plaintiffs’ favor. A. The Federal Balance Requires That This Court Decide This Case

The State Defendants maintain that this case is about “who should decide.” In other words, they argue this Court should decline to analyze and decide this case under the Fourteenth Amendment, out of deference to the State of Utah. The State Defendants further claim this Court risks interfering with the State’s exercise of its constitutionally reserved powers, if it decides this case. However, the Constitution reserves to the federal judiciary the power to interpret the Constitution in cases before it, including under the Fourteenth Amendment. See U.S. Const. Art. III, § 2, cl. 1 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . . .”). As such, this case is delegated to the federal judiciary and not reserved to the State of Utah under the Tenth Amendment. See U.S. Const. Amend. X (“The powers not delegated to the United States by the Constitution, nor prohibit by it to the States, are reserved to the States respectively, or to the people.”). Indeed, this Court must decide whether Utah’s Marriage Discrimination Laws violate the Fourteenth Amendment. If it does not, that failure would disrupt the federal balance as set forth in the Constitution -- not the other way around. Plaintiffs agree with the State Defendants that our federal system is intended to safeguard the nation’s citizens from the abuse of power, and part of that system is the power of the Constitution to provide individuals, wherever they reside, equal protection of the law, and protection of their fundamental rights, even where infringement is the

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desire of the majority of citizens in a state.6 Utah is no exception, and the majority of this State cannot use their political power to discriminate against a politically unpopular minority that does not share the majority’s religious and/or moral view in terms of the fundamental right, and equal access, to marriage. B. The Regulation of Marriage Is Not Exclusively the Province of the States, as State Laws Are Subject to Constitutional Guarantees, Including Under the Fourteenth Amendment

In arguing that regulation of marriage is the exclusive province of the State, the State Defendants rely on antiquated opinions and case law, and ignore the patent statements in Windsor to the contrary. First, the State Defendants’ recognition that power over the subject of marriage resided exclusively with the states at the time of the adoption of the Constitution, as also acknowledged in the dicta of Windsor, is a nonstarter. The Fourteenth Amendment at issue in this case did not exist at the time of the adoption of the Constitution, nor did the Supreme Court’s body of law interpreting that amendment, including cases relating to marriage, such as Loving v. Virginia, 388 U.S. 1 (1967) and Zablocki v. Redhail, 434 U.S. 374 (1978). Furthermore, most of the cases cited by the State Defendants to

The fact Amendment 3 passed a public vote does not immunize Utah’s Marriage Discrimination Laws from constitutional scrutiny. See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (Supreme Court invalidated Colorado’s state constitutional amendment barring laws providing protection to homosexuals, which amendment was adopted by voters in statewide referendum, under the Equal Protection Clause of the Fourteenth Amendment); see also Bowers v. Hardwick, 478 U.S. 186, 210-11 (1986) (Blackmun, J., dissenting) (“[N]either the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from this Court’s scrutiny.”).

6

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support their argument are either from non-binding, dissenting opinions, or decisions that are outdated. No binding, contemporary authority supports the State Defendants’ position that marriage is exclusively and absolutely delegated to the states, including because this is not the law. Marriage, while primarily the province of the states, is not exclusively so. The State Defendants’ gloss over the key statements in the Windsor decision that make it clear the state’s power to regulate marriage is “subject to constitutional guarantees” (stated twice in the majority opinion) and “of course, must respect the constitutional rights of persons.” Windsor, 133 S. Ct at 2691-92 (emphasis added). Where a state’s regulation of marriage does not respect those rights, or infringes upon those guarantees -- such as the case here -- then the state’s power is limited by the Constitution. This is true regardless of the fact that domestic relations have been largely (but not exclusively) relegated to the states throughout our nation’s history. C. The Windsor Decision Is Not Based on Federalism, Nor Does Windsor Mandate This Court’s Deference to Utah’s Unconstitutional Laws

The Windsor decision does not support the position that the State of Utah has an unfettered right to determine all matters involving marriage in Utah, and the State Defendants wholly misinterpret the Supreme Court’s decision in their efforts to uphold Utah’s unconstitutional laws. DOMA was in fact struck down, not because states have an exclusive and absolute right to regulate marriage, but because DOMA deprived same-sex couples of their constitutional rights under the Fifth Amendment. See Windsor, 133 S. Ct. at 2692-93, 2695 (DOMA “result[s] [in] injury and indignity” that

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“is a deprivation of an essential part of the liberty protected by the Fifth Amendment;” DOMA “violates basic due process and equal protection principles;” “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”) (emphasis added). Contrary to the State Defendants’ arguments, the Windsor decision was not based on federalism or the Tenth Amendment. The majority opinion expressly states this. See id. at 2692 (“it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution;” “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import”) (emphasis added). Chief Justice Roberts’ dissent, and his personal gloss on the Windsor decision as being “based on federalism,” is not binding on this Court. Id. at 2697 (Roberts, C.J., dissenting). This is especially true given that the majority opinion (which is binding on this Court) expressly states that the holding is based on equal protection and due process, and not on federalism. The State Defendants’ sole reliance on Chief Justice Roberts’ dissent is just further proof of the fallacy of their position. Not only did the majority reject Chief Justice Roberts’ position, but so did Justice Scalia, who wrote a separate dissent, recognizing the majority opinion for what it is: a holding that would bind lower courts, such as this Court, if presented a constitutional challenge to state laws banning same-sex marriage, such as in this case. See id.at 2709 (Scalia, J., dissenting) (“[T]he view that this Court will take of state prohibition of same-sex

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marriage is indicated beyond mistaking in today’s opinion. . . . [T]he real rationale of today’s opinion . . . is that DOMA is motivated by ‘bare . . . desire to harm’ couples in same-sex marriages. . . . How easy is it, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”) (italics emphasis in original; bold emphasis added). Finally, Windsor does not stand for the proposition the State Defendants’ urge, that Utah’s laws must be accorded the same respect and deference as the laws allowing same-sex marriage in New York, including because Utah’s laws do not respect the fundamental rights and liberties of Utah’s gay and lesbian citizens, or provide these citizens equal protection of the law. Utah’s Marriage Discrimination Laws offend constitutional guarantees, for reasons set forth in Plaintiffs’ Motion (and in Windsor), and cannot be condoned, as the State Defendants suggest, simply because the Supreme Court has shown deference to the entirely different marriage laws of another state (that are in fact the opposite of Utah’s laws, and do not offend the Fourteenth Amendment). D. Windsor Requires This Court To Invalidate Utah’s Marriage Discrimination Laws

A state’s regulation of marriage is subject to constitutional guarantees. See Windsor, 133 S. Ct at 2692. These very guarantees are at issue in this case. Under the Constitution, this Court is charged with deciding this case. See U.S. Const. Art. III. Moreover, under Windsor, this Court must decide this case in Plaintiffs’ favor. As demonstrated in Plaintiffs’ Motion, the analysis and foundation for Windsor’s holding that DOMA was unconstitutional applies with e ual force to Utah’s Marriage

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Discrimination Laws. See Plaintiffs’ Motion at 18-26 (equal protection right of same-sex couples to marry in general) & 37-39 (equal protection right of same-sex couples to have their out-of-state marriage recognized in Utah). Moreover, the majority in Windsor further indicated as much when they stated, “[w]hile the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes the Fifth Amendment right all the more specific and all the better understood and p reserved.” Windsor, 133 S. Ct at 2695. This language means that the Fourteenth Amendment prohibits the State of Utah from doing the same thing that the federal government did in DOMA. Further, even if the majority’s opinion were not plain enough, Justi ce Scalia -no friend to marriage equality -- also recognized that this was the import of the majority opinion in his dissent. See id. at 2709 (Scalia, J., dissenting) (“to reach the same conclusion with regard to state laws denying same-sex couples marital status” is “inevitable”) (emphasis added). Finally, as discussed in Plaintiffs’ Motion, the Supreme Court in Windsor already analyzed and rejected as irrational all of the very same arguments that the State advances here, in attempting to present a justification for its unconstitutional laws. See id. at 2696 (“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure . . . .”); see also Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“BLAG Brief”) at 28-49 (list of potential state interests rejected by the Supreme Court in Windsor as not sufficient to “overcome[] the purpose and effect to disparage and injure”

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same-sex couples) (Feb. 2013), United States v. Windsor, No. 12-307 before the United States Supreme Court, attached hereto as Exhibit 9. In other words, the State Defendants’ arguments are not new. They have been presented to the nation’s highest court in materially analogous circumstances, and rejected as not justifying a violation of the Due Process Clause of the Fifth Amendment. Likewise, these very same rationales by the State of Utah do not overcome the purpose and effect to disparage and injure Utah’s gay and lesbian citizens, in violation of the Fourteenth Amendment. II. BAKER V. NELSON IS IRRELEVANT

The State Defendants invoke the Supreme Court’s 1972 summary dismissal of Baker v. Nelson for want of a substantial federal question, contending that Baker requires dismissal of Plaintiffs’ claims. See generally id., 191 N.W.2d 185 (Minn. 1971), appeal dismissed w/o op., 409 U.S. 810 (1972). But the Supreme Court has cautioned that, “‘when doctrinal developments indicate otherwise,’” the lower federal courts should not “‘adhere to the view that if the Court has branded a uestion as unsubstantial, it remains so.’” Hicks v. Miranda, 422 U.S. 332, 344 (1975) (quoting Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967)). “In the forty years after Baker, there have been manifold changes to the Supreme Court’s e ual protection jurisprudence.” Windsor v. United States, 699 F.3d 169, 178-79 (2d Cir. 2012). As the Second Circuit has explained: When Baker was decided in 1971, “intermediate scrutiny” was not yet in the Court's vernacular. Classifications based on illegitimacy and sex were not yet deemed quasi-suspect. The Court had not yet ruled that “a classification of [homosexuals] undertaken for its own sake” actually lacked a rational basis. And, in 1971, the government could lawfully

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‘demean [homosexuals’] existence or control their destiny by making their private sexual conduct a crime.’” Id. at 179 (citation omitted); see also Smelt v. County of Orange, 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005) (“Doctrinal developments show it is not reasonable to conclude the questions presented in the Baker jurisdictional statement would still be viewed by the Supreme Court as ‘unsubstantial.’”), vacated on other grounds in Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006); In re Kandu, 315 B.R.123, 138 (Bankr. W.D. Wash. 2004) (explaining that “Baker is not binding precedent” because of, among other things, “the possible impact of recent Supreme Court decisions, particularly as articulated in Lawrence”); Garden State Equality v. Dow, No. Civ. A. MER-L-1729-11, 2012 WL 540608, at *4 (N.J. Super. Ct. Feb. 21, 2012) (“The United States Supreme Court has decided several pertinent cases both contemporaneous with Baker and more recently which indicate that the issue of denying same-sex couples access to the institution of marriage would not be considered ‘unsubstantial’ today.”). Baker did not and could not address how any of these doctrinal developments bear on Plaintiffs’ e ual protection claims. Similarly, Baker could not and did not address how Plaintiffs’ substantive due process claims should be evaluated in light of the Supreme Court’s intervening decisions in Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973); Carey v. Population Services Int'l, 431 U.S. 678 (1977); Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v. Safley, 482 U.S. 78 (1987); and Lawrence v. Texas, 539 U.S. 558 (2003). These doctrinal developments closely resemble those that occurred in the antimiscegenation cases. In 1956, the Supreme Court refused to hear a challenge to 9

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Virginia’s anti-miscegenation statute because the case was “devoid of a properly presented federal uestion.” Naim v. Naim, 350 U.S. 985 (1956). Eleven years later, the Court struck down the same law in Loving v. Virginia, 388 U.S. 1 (1967). In the intervening years, the Court decided McLaughlin v. Florida, 379 U.S. 184 (1964), holding for the first time that a state could not punish interracial sexual activity more severely than intra-racial sexual activity. Like Romer v. Evans, 517 U.S. 620 (1996); Lawrence; and United States v. Windsor, 33 S. Ct. 2675 (2013), McLaughlin represented a change in doctrine that rendered a summary dismissal from years earlier inapplicable to future cases on the issue. Further, Baker did not address whether a State violates equal protection and due process by categorically excluding legally married same-sex couples from its longstanding practice and law that a marriage valid where celebrated generally will be recognized as valid in Utah. See Utah Code § 30-1-4 (2013) (“A marriage solemnized in any other country, state, or territory, if valid where solemnized, is valid here . . . .”). The Baker decision did not even consider this question, much less resolve it; therefore, Baker cannot be deemed to resolve whether Utah must afford equal recognition to the valid out-of-state marriages of same-sex couples. Mandel v. Bradley, 432 U.S. 173, 176 (1979) (holding that a summary dismissal by the Supreme Court for want of a substantial federal uestion is dispositive only on “the precise issues presented and necessarily decided”).

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For all these reasons, Baker is irrelevant to Plaintiffs’ challenge to Utah’s Marriage Discrimination Laws.7 III. THE FUNDAMENTAL RIGHT TO MARRIAGE PROTECTED BY THE DUE PROCESS CLAUSE ENCOMPASSES THE RIGHT OF PLAINTIFFS TO MARRY THE PERSON OF THEIR CHOICE

The State Defendants contend there is no fundamental right to “same-sex marriage,” and therefore Utah’s Marriage Discrimination Laws do not violate Due Process. However, the Constitution protects the right to marriage of all citizens, and not just the right to marriage in its “traditional” or historically accepted forms. The contours of civil marriage have changed throughout the history of our nation. Notwithstanding, the fact that marriage is a fundamental right protected by the Due Process Clause has remain unchanged. Because Utah’s laws preclude Plaintiffs’ access to the fundamenta l

As discussed, supra, Baker has been made irrelevant by subsequent doctrinal developments of the Supreme Court. This is especially true given that Baker is a summary affirmance, and not a published opinion. The Supreme Court has stated that “summary affirmances have considerably less precedential value than an opinion on the merits.” Ill. State Bd. of Elec. v. Socialist Workers Party, 440 U.S. 173, 180-81 (1979). For summary affirmances, a lower court is required to independently examine a uestion in light of subse uent “doctrinal developments” even when the case has not been explicitly overruled. Hicks, 422 U.S. at 344. “In contrast to full opinions of the Supreme Court, the Court also has stated doctrinal developments may show a summary dismissal is no longer binding.” Smelt, 374 F. Supp. 2d at 874; see also Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 173 n.33 (3d Cir. 2002) (“[S]ubse uent doctrinal developments remove whatever precedential authority a summary disposition inconsistent with them might have”); Jones v. Bates, 127 F.3d 839, 851 n.13 (9th Cir. 1997) (“[E]ven if we were to assume that [a summary affirmance] concerned precisely the same issues involved here, extensive intervening doctrinal developments . . . strongly suggest that continued reliance on [the summary affirmance] is unwarranted”); see also, e.g., Soto-Lopez v. N.Y. City Civil Serv. Comm’n, 755 F.2d 266, 273 (2d Cir. 1985) (holding that summary affirmance in 1974 is no longer binding in light of intervening precedent from 1982).

7

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right of marriage, the State Defendants’ motion should be denied, and summary judgment entered in favor of Plaintiffs on the grounds that the Marriage Discrimination Laws violate Plaintiffs’ due process rights guaranteed by the Fourteenth Amendment. A. Plaintiffs Are Not Advocating a “New” Fundamental Right, But Equal Access to an Already-Existing Fundamental Right

The State Defendants erroneously assert that Plaintiffs seek recognition of a “new” right, not recognized in the Constitution. See, e.g., State Defendants’ Answer at 7 (“State Defendants deny that same-sex marriage is a constitutionally protected right . . . .”), Docket No. 16. However, Plaintiffs do not ask this Court “to break new ground,” or “to expand the concept of substantive due process.” Collins v. Harker Heights, 503 U.S. 115, 125 (1992). “To characterize plaintiffs’ objectives as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy – namely, marriage.” Perry v.

Schwarzenegger, 704 F. Supp. 2d 921, 993 (N.D. Cal. 2010) (emphasis added). “Rather, plaintiffs ask [the State of Utah] to recognize their relationships for what they are: marriages.” Id. (emphasis added). The “careful description” of the fundamental right to marriage has already been set forth in the numerous cases of the Supreme Court that are discussed in great detail in Plaintiffs’ Motion, and expressly includes the right to make choices about marriage, including, foremost, the person that you will marry. See Plaintiffs’ Motion at 4-13; Zablocki v. Redhail, 434 U.S. 374, 383-385 (1978) (“[T]he right to marry is of fundamental importance for all individuals . . . [and] the most important relation in life. . . . Marriage is a coming together for better or for worse, hopefully enduring, and intimate

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to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social project. . . . [I]t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage. . . . This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.") (quotation and citation omitted; emphasis added). Sexual orientation and gender are irrelevant to the marriage relationship, including because same-sex couples’ intimate relationships embody the very same attributes of marriage that the Supreme Court has identified as necessary to create a constitutionally protected marital relationship. The Supreme Court in Turner v. Safley struck down a prison regulation denying inmates the right to marry as violating the fundamental right of due process. 482 U.S. 78 (1987). The Court concluded the elements of marriage available to a prisoner “are sufficient to form a constitutionally protected marital relationship in the prison context.” Id., 482 U.S. at 96. The marriage attributes the unanimous Court in Turner found were sufficient to form a constitutionally protected marital relationship are: First, inmate marriages, like others, are expression of emotional support and public commitment. . . . In addition, many religions recognize marriage as having spiritual significance . . . . Third, most inmates eventually will be released by parole or commutation, and therefore, most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt

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of government benefits . . ., property rights . . ., and other, less tangible benefits . . . . [8] Id. at 95-96. Those same marriage attributes apply to same-sex marriage. Because of the Supreme Court’s large body of case law on the right to marry, this Court does not have to come up with its own description of the right to marriage, contrary to the State Defendants’ assertions. This Court need only declare that all citizens have equal access to the fundamental right of marriage already established by binding, Supreme Court precedent, and that Utah’s laws prohibit Plaintiffs’ access to that fundamental right. B. That the Right to Marry Itself is Deeply Rooted in This Nation’s History and Tradition Is Sufficient for This Court To Determine That the Marriage Discrimination Laws Violate Plaintiffs’ Fundamental Right to Marriage under the Due Process Clause

It is sufficient that the right to marry itself is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997), for this Court to determine that the right to marry a person of the same gender is protected by the Due Process Clause of the Fourteenth Amendment. That is why the Constitution protects, for example, interracial marriage, see Loving v. Virginia, 388 U.S. 1 (1967), and the right of married couples to use contraceptives, see Griswold v. Connecticut, 3811 U.S. 479 (1965), even though interracial marriages were not “traditional” or historically accepted at points in our nation’s past, and the use of contraceptives by married couples would not lead to offspring. This is true whether these liberties were originally intended to be Turner also makes it clear that procreation is not an essential element for a marital relationship to be constitutionally protected.
8

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recognized as fundamental or even recognized at all. As the majority in Lawrence stated: Had those who drew and ratified the Due Process Clauses of the Fifth or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress . As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Lawrence v. Texas, 539 U.S. 558, 578-79 (2003) (emphasis added). While “[i]t seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might [marry],” United States v. Windsor, 133 S. Ct. 2675, 2689 (2013), the fact that, traditionally, same-sex marriage was not part of our vocabulary is not determinative. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process in uiry.” Lawrence, 539 U.S. at 572 (internal quotation and citation omitted). As the Supreme Court’s more-recent jurisprudence demonstrates, when the rights of gay and lesbian individuals are at issue, history and tradition do not dictate the outcome under substantive due process analysis. See, e.g., id.; see also, e.g., United States v. Windsor, 133 S. Ct. 2675 (2013). Further, and contrary to the State Defendants’ mischaracterization, this cas e is not like Glucksberg. The Court in Glucksberg held that assisted suicide was not deeply rooted in the nation’s history, including because it has been criminalized in Anglo American law for over 700 years. See Glucksberg, 521 U.S. at 710-19. In contrast, marriage has been widely lauded and encouraged throughout history. This case is 15

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therefore the opposite of, and distinguishable from, Glucksberg, and the State Defendants’ manipulation of the language in that case to argue against marriage equality is misleading. C. Civil Marriage Is Not a Static Institution, and the Fundamental Right to Marriage Is Not Per Se Bound to Any Particular Historical or Traditional Form

The State of Utah cannot narrowly define the liberty and privacy rights at issue in this case to exclude gay and lesbian individuals from marriage, based on a claim of protecting a “traditional” definition of marriage, including because many tenets of “traditional” marriage have fallen by the wayside, as civil marriage in our country has never been as static as the State Defendants now contend. See Cott Decl., ¶ 9 (“Marriage is not a fixed institution. In the United States, marriage has changed dramatically over time . . . to meet changing social and ethical needs. . . . Societal change over the centuries has produced new features in marriage that are commonly accepted today although they would have been unthinkable at the founding of the United States. Marriage has been a successful civil institution precisely because it has been flexible, not static.”) (emphasis added); see also Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 940 (“Nancy Cott, a historian testified as an expert in the history of marriage in the United States. Cott testified that marriage has always been a secular institution in the United States, that regulation of marriage eased the state’s burden to govern an amorphous populace and that marriage in the United States has undergone a series of transformations since the country was founded.”).

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For example, “traditional” marriage formerly embodied gender roles through the doctrine of coverture, which was ubiquitous throughout the country. See United States v. Graham, 87 F. Supp. 237, 240 (D. Mich. 1949) (“[M]arriage destroyed a woman’s separate legal identity; her legal existence was merged in that of her husband . . . .”). Indeed, unlike bans on interracial marriage, all fifty states adopted the doctrine of coverture. Like bans on same-sex marriage, the doctrine of coverture was thought to be justified by biological differences between males and females. However, this tenet of “traditional” marriage has perished. See Cott Decl., ¶¶ 35 & 45-46 (“Over time our country has moved to gender parity in marriage which would have been unthinkable to most Americans at the founding of the United States. . . . These changes reflect the modern view of marriage as an arrangement between two equal and consenting parties who have freely chosen one another. . . . The gender equality of marriage today would profoundly shock any American from the era of the American Revolution of the Civil War.”). As another example, “traditional” marriage was permanent; i.e., “to death do us part.” Yet, all states now embrace some form of no-fault divorce, despite the fact that this change was met with much resistance: Divorce grounds initially involved only such breaches of the marriage as adultery, desertion, or conviction of certain crimes. . . . Over time, divorce became more easily obtainable . . . . The expansion of grounds for divorce was hotly debated, and fiercely opposed in some quarters . . . . Major religions opposed divorce entirely, or accepted adultery as the sole justification for divorce. . . . Alarmist critics were sure that liberalized treatment of divorce would undermine the marital compact entirely. . . . [E]xtreme differences among [the states] arose. . . . [Ultimately] no-fault divorce was soon embraced nationally as a means of dealing honestly with marital breakdowns, achieving greater equality between men and 17

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women within marriage, and advancing further the notion of consent and choice as to one’s spouse. Id., ¶¶ 63, 66-67 & 70. As yet another example, and analogous to the State’s infringement on Plaintiffs’ constitutionally-protected choice in this case, in some parts of the country, “traditional” marriage also prohibited marriages between individuals of different race. However, such anti-miscegenation laws were found to be unconstitutional. See Loving v. Virginia, 388 U.S. 1 (1967); see also Perry, 704 F. Supp. 2d at 992 (“When the Supreme Court invalidated race restrictions in Loving, . . . the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry.”) (internal citation omitted). Finally, while “traditional” marriage has been historically linked with procreation,9 The ability or willingness of couples to produce progeny has never been required for or necessary to marriage under the law of any American state. For example, no state ever barred women past menopause from marrying or allowed a husband to divorce his wife because she was past childbearing age. Men or women known to be sterile have not been prevented from marrying. Nor could a marriage be annulled for an inability to bear or beget children. . . . In the past, widows and widowers remarried Plaintiffs do not deny that procreation is one reason why people may marry, or contend that individuals should not seek to enter marriage to procreate. However, contrary to the arguments of the State Defendants, procreation is not the only reason why people marry, or the reason why the Supreme Court has recognized marriage as a fundamental right. The Supreme Court has, in fact, upheld the right to marry in cases where there is no ability to procreate. See, e.g., Turner v. Safley, 482 U.S. 78, 95-96 (holding attributes of marriage, after considering prison life limitations, were sufficient to form constitutionally protected marital relationship) . Moreover, not even the State Defendants would contend that (opposite-sex) infertile people, elderly people, or even people capable of procreation but not wanting children, should be denied the right to marry.
9

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whenever a willing mate could be found; although it was often clear that no children would result, marriage was nonetheless desirable because it produced the division of labor expected to undergird a well-functioning household. In our contemporary post-industrial economy, many divorced or widowed older adults marry when they are past childbearing age, usually for reasons of intimacy and stability. . . . [C]ouples with no interest in or expectation of childbearing marry, and re-marry. Cott Decl., ¶¶ 24-25. Notwithstanding, to protect the procreative tenet of “traditional” marriage, states attempted to deny married couples access to contraceptives, but the Supreme Court invalidated such laws under the Fourteenth Amendment. See Griswold v. Connecticut, 3811 U.S. 479 (1965). If history has demonstrated anything, it is that marriage is not a static concept, but is fluid to accommodate societies’ evolving understanding of e uality and privacy. But that does not make it any less fundamental. Recently, the Supreme Court acknowledged the evolving nature of marriage in Windsor, stating that allowing same-sex couples to marry “enhance[s] the recognition, dignity, and protection of [that class of persons] in their own community,” and that New York’s authorization of same-sex marriages “reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of e uality.” 133 S. Ct. at 2692-93. The Supreme Court explained that “[t]he limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.” Id. at 2689. The Supreme Court emphasized that, while the “regulation of domestic relations” has long been entrusted to

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the states, “[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons . . . .” Id. at 2691 (emphasis added). In sum, the constitutional guarantees of the Fourteenth Amendment require that Utah’s Marriage Discrimination Laws be struck down, even if it is difficult for some to accept. “Indeed, many features of modern marriage that we take for granted today -such as the ability of both spouses to act as individuals, to marry someone of another race, or to divorce for numerous reasons -- were fiercely resisted as they were coming into being, and were viewed by opponents as threatening to destroy the institution itself.” Cott Decl., ¶ 33. Notwithstanding, the institution of marriage changed in our country to meet society’s changing needs and understanding of e uality and privacy, and continues to flourish today because of that flexibility. D. This Court Must Invalidate Utah’s Marriage Discrimination Laws Under the Due Process Clause of the Fourteenth Amendment

The right to marriage is deeply rooted in the jurisprudence of the American courts, and all citizens should be free from having the State appropriate that right, without compelling justification. See Plaintiffs’ Motion at 1-16. Plaintiffs need not convince this Court that same-sex marriage is a historically accepted tradition in this country, any more than the plaintiffs in Loving had to convince the Supreme Court in 1967 that interracial marriage was a historically accepted tradition in this country, in order for Plaintiffs to exercise the same fundamental choices, liberty, and privacy rights that heterosexual individuals enjoy. Under the Due Process Clause of the Fourteenth Amendment, the fundamental right of all individuals – regardless of sexual orientation –

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to marry the person of his or her choice is protected from unjustified, governmental intrusion. For these and other reasons explained more fully in Plaintiffs’ Motion, this Court should deny the instant motion, and find that Utah’s Marriage Discrimination Laws violate Due Process. IV. POST WINDSOR, UTAH’S MARRIAGE DISCRIMINATION LAWS FAIL UNDER THE EQUAL PROTECTION CLAUSE BECAUSE PREJUDICE IS IRRATIONAL, AND UTAH’S LAWS ARE BASED ON PREJUDICE

The State of Utah is discriminating against gay and lesbian individuals based on prejudice, and under United States v. Windsor, 133 S. Ct. 2675 (2013), this discrimination fails under any standard of review, as explained in this opposition and in Plaintiffs’ Motion. Windsor is the binding precedent applicable to this case, because it is the only opinion of the Supreme Court on the issue of same-sex marriage, and because the Supreme Court in Windsor struck down DOMA’s limitation on marriage to a union between a man and a woman as a violation of equal protection implicit in the Due Process Clause of the Fifth Amendment, for reasons that re uire Utah’s discriminat ory laws to be struck down as well under the Equal Protection of the Fourteenth Amendment. Id. at 2695-96. In striking down DOMA, the Supreme Court held that DOMA “injure[s],” “stigma[tizes],” “demean[s],” and “degrade[s]” same -sex couples, treating their relationships as “second-class,” “second-tier,” and “unworthy of [] recognition.” Id. at 2692-94 & 2695-96. In addition, the Supreme Court held that DOMA “humiliates tens of thousands of children now being raised by same-sex couples” and “financial[ly] harm[s]” them by denying them federal benefits. Id. at 2694-95. The Supreme Court further emphasized that, by denying recognition to same-sex couples,

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DOMA had a “substantial societal impact . . . in the daily lives and customs” of people. Id. at 2693. In this case, the State of Utah seeks to uphold a definition of marriage which is even more far-reaching and injurious than the definition of marriage found unconstitutional in DOMA. While the Supreme Court held that denying same-sex couples federal benefits under DOMA was unconstitutional, Utah’s laws actually prohibit these couples from marrying in the first instance, or even from forming civil unions or domestic partnerships, having even more of a “substantial impact” on the “daily lives and customs” of Utah’s citizens. Id. at 2693. As in Windsor, Utah’s discrimination against same-sex couples “is invalid, for no legitimate purpose overcomes the purpose and effect [of the Marriage Discrimination Laws] to disparage and to injure” Utah’s same-sex couples. Id. at 2696. Because Utah’s Marriage Discrimination Laws treat these couples as “less respected than others,” they violate the E ual Protection Clause, and must be struck down under the binding precedent of Windsor. Id. In sum, the analysis of this case under Windsor is dispositive, showing that Plaintiffs are entitled to summary judgment on their Equal Protection claim for reasons set forth in more detail in Plaintiffs’ pending motion for judgment as a matter of law -and irrespective of whether sexual orientation is “suspect.” See Plaintiffs’ Motion at 1826. These same reasons demand that the State Defendants’ motion for summary judgment be denied.

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A.

Under Windsor, the State of Utah Bears the Burden of Showing Its Marriage Discrimination Laws Are Not Based Solely on Prejudice and Cannot Do So

The State Defendants contend they are not required to come forth with any reason for their laws, and this Court is required to accept their so-called “legislative facts,” which are not supported by admissible evidence, are not presented to this Court in any form permitted under Federal Rule of Civil Procedure 56, and which the State Defendants virtually admit are “legitimately” contested, by argument of “serious strength.” State Defendants’ Motion at 18. Instead, the State Defendants argue they may rely on any “conceivable” reason for Utah’s laws, no matter how “speculat[ive],” “tenuous,” “illogical,” and “unscientific.” Id. at 19-20. However, as discussed, infra, even rational basis scrutiny is not as deferential as the State Defendants contend. In any case, however, under the binding precedent of Windsor -- which is the only case decided by this nation’s highest court on the subject of same-sex marriage -- this Court cannot uphold laws that discriminate against same-sex couples by purely deferring to the State. Under the analysis of the Supreme Court in Windsor, this Court must look to the actual purpose, design, and effect of the exclusion of same-sex couples from marriage, and whether Utah’s laws are undertaken solely to disadvantage Utah’s gay and lesbian citizens, by denying them the same rights, protections, responsibilities, and benefits allowed to their similarly-situated, heterosexual counterparts. In particular, the Supreme Court held in Windsor that “the design, purpose, and effect” of laws burdening same -sex couples “should be considered as the beginning point in deciding whether [they are]

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valid under the Constitution,” and “at the very least,” E ual Protection “mean[s] that a bare . . . desire to harm a politically unpopular group cannot justify disparate treatment of that group.” Windsor, 133 S. Ct. at 2689 & 2693 (quotation omitted). The Court further stated that DOMA’s “avowed purpose and practical effect [was] to impose a disadvantage, a separate status, and so a stigma upon all who [desire to] enter into same-sex marriages . . . .” Id. at 2693. The Court expressly rejected Congress’s claim that DOMA was justified by the need “to defend the institution of traditional heterosexual marriage,” to express “moral disapproval of homosexuality,” and to promote “an interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Id. After reviewing these purported justifications, and others, the Supreme Court held that DOMA was not justified by any “legitimate purpose.” Id. at 2696. As such, DOMA “raise[d] a most serious uestion under the Constitution’s [e ual protection guarantees],” as its “principal effect [was] to identify a subset” of relationships “and make them une ual.” Id. at 2694. DOMA’s “principle purpose [was] to impose ine uality, not for other reasons like governmental efficiency.” Id. Instead, “it [told] those couples, and all the world,” that their relationships are “unworthy” of recognition. Id. “The differentiation demean[ed] the couple, whose moral and sexual choices the Constitution protects.” Id. (citing Lawrence v. Texas, 539 U.S. 558 (2003)). In sum, DOMA “single[d] out a class of persons,” and “impose[d] a disability on the class.” It “instruct[ed] all [government] officials, and indeed all persons with whom same -sex couples interact, including their own children, that their [relationship] is less worthy than the [relationships] of others.” Id. at 2695-96. Accordingly, the Court found DOMA

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“invalid, for no legitimate purpose [overcame] the purpose and effect to disparage and to injure” same-sex couples. Id. at 2696. In this case, this Court can look to the stated reasons for the passage of Amendment 3 to determine “the design, purpose, and effect” of Utah’s Marriage Discrimination Laws. Id. at 2689. These reasons are set forth in the voter information Pamphlet, prepared under the direction of the Lieutenant Governor, which reads: [T]he Amendment prohibits any other domestic union from being given the same or substantially equal legal effect as is given to a marriage between a man and a woman. Presently when a man and a woman marry, they receive certain rights, benefits, and obligations provided in the law. A married man and woman receive those rights, benefits, and obligations automatically, by operation of law and solely by virtue of being married. The Amendment prohibits a domestic union from being given those same or similar rights, benefits, and obligations. The scope of that prohibition may be more precisely defined by Utah courts as they interpret the provision in the context of lawsuits that may arise. Utah Voter Information Pamphlet General Election November 2, 2004 (the “Pamphlet”) at 35, excerpts attached as Ex. C to Decl. of J.F. Parrish in Support of Plaintiffs’ Motion for Summary Judgment, Docket No. 32-2. The purpose of Amendment 3, as officially stated, is to create a state-sponsored institution of inequality, and to prohibit gay and lesbian couples from enjoying the same protections and benefits under the law as those “automatically” given to different-sex couples. Id. The Pamphlet further explains that Amendment 3 was necessary to “maintain[] public morality, the justified preference for heterosexual marriage with its capacity to perpetuate the human race and the importance of raising children in that preferred relationship.” Id. The Pamphlet further states that Amendments 3 would ensure the continuation of “the ideal relationship where men, women and children thrive best and that is an enduring natural marriage 25

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between a man and a woman.” Id. Thus, the express and stated purpose of Amendment 3 was to further privately-held moral views that same-sex couples are immoral and inferior to heterosexual couples, by disadvantaging them in comparison to opposite-sex couples in the eyes of the law. That stated purpose and effect of Amendment 3 is prejudice pure and simple, as analyzed and determined in Windsor with regard to the analogous purpose and effect of DOMA. Further, and contrary to the State Defendants’ characterization, the debates on Amendment 3 in the Utah legislature were not marked by “a feeling of toleration and concern for the welfare [of] homosexuals in the state.” State Defendants’ Motion at xiii. Plaintiffs do not view statements like the following, which were made by the legislative sponsor of Amendment 3 when it was introduced in the Utah House of Representatives, as showing tolerance and concern for them, but instead as disparaging, and demonstrating a desire to treat their relationships as second-class, inferior, unworthy, immoral, and unequal: I would submit that there is a tide of events in the affairs of men and that the confusion and anarchy of Massachusetts and San Francisco and elsewhere have reached a boiling point, after similar issues have been simmering for some time. We’ve come face to face with what Abraham Lincoln long ago said in his day would continue to be the [eternal] struggle between right and wrong that would go on forever and ever. . . . We should not shy away from the notion that this is, indeed, a moral question. For surely it is and we make no apologies for that. You can be compassionate and empathetic, kind and considerate without lowering standards or transforming fundamental principles upon which our society is based. It was John Adams long ago that said the constitution is only suited and fit for a moral people. It is unfit for any other. . . .

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It was Washington long ago that said it is impossible to govern without the Bible. . . . We measure time forward and backwards from the birth of Jesus Christ. And we look to him. We not only pray each morning, but we look to him for the exemplar that he is. He loved all people. He blessed all people. He showed great compassion and mercy. But he didn’t lower his standards while he was doing it. He called people to come up to those standards. . . . Where can you say in the time of your representation that you’ve had the opportunity to so clearly reaffirm and keep from being just a hollow ceremonial recital as politicians make it so at the conclusion of so many addresses: God bless America. . . . 2/24/04 Tr., 2004 General Legislative Session, Utah House of Representatives, at 2, 4, 6 & 15-16 (Rep. L. Christensen , Sponsor of HJR025) (emphasis added), excerpts attached hereto as Exhibit 14. The State’s legislators believed that e ual access to marriage would result, in their personal opinions, to a “lowering [of] standards.” Id. at 4 & 15; see also, e.g., id. at 7 (other representative in support of HJR025: “I support the resolution because I will not accept same-sex unions as marriage as sanctified. I will not because that’s in my heart. And that’s the way I feel. But I tolerate them and respect them deeply, thank you.”). There can be no mistake that the only purpose of these laws was and is to exclude from civil marriage, those relationships viewed by the religious majority of the State as second-class, inferior, and immoral, not, as the State Defendants contend, to promote marriage between opposite-sex couples (which, as discussed, infra, has no

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rational relationship to the laws, in any case).10 11 Accordingly, for the reasons set forth by the Supreme Court in Windsor, this Court is likewise bound to reject the furtherance of privately-held moral views as a basis for disadvantaging Utah’s same-sex couples, and must find that the Marriage Discrimination Laws are unconstitutional under the Fourteenth Amendment. V. CLASSIFICATIONS BASED ON SEXUAL ORIENTATION REQUIRE HEIGHTENED SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE

Under the criteria established by this nation’s highest court, classifications based on sexual orientation require heightened scrutiny, and there is no binding authority prohibiting this Court from making this finding. Accordingly, and because classifications based on sexual orientation re uire heightened scrutiny, the State Defendants’ motion must be denied, and Plaintiffs’ Motion granted. The State has come forth with no

The sponsor of Amendment 3 was specifically asked during the floor debate for the rational basis of the law, and how Amendment 3 would make opposite-sex marriages stronger. The sponsor could not answer either of these questions, responding to the latter by stating, “If you believe in radical individualism, you can go off in a private corner and you can answer that question.” Id. at 10. The fact Amendment 3 was even presented to the voters in November 2004 -when same-sex marriage was already banned through two Utah statutes, and had been banned since 1977 -- further demonstrates that the purpose of the Amendment was to make a state-sponsored, public statement that the long-term, committed relationships of gay and lesbian couples in the State of Utah were and are inferior to those of oppositesex couples, and should be treated unequal. See Utah Code Ann. § 30-1-2 (same-sex exclusion clause effective July 15, 1977); id. at § 30-1-4.1 (statutory equivalent of Amendment 3, banning same-sex marriage and any equivalent union, effective March 23, 2004).
11

10

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evidence to support that its Marriage Discrimination Laws are substantially related to any state interest, let alone an important state interest. A. Faithful Application of the Supreme Court’s Binding Precedent Requires Heightened Scrutiny of Classifications Based on Sexual Orientation

A number of federal and state courts, the current Department of Justice, learned constitutional scholars, and others have recently pronounced that the only conclusion that results from a faithful application of the Supreme Court’s criteria for determining whether a class should receive heightened scrutiny, is that classifications based on sexual orientation are suspect (or at least quasi-suspect). See, e.g., Windsor v. United States, 699 F.3d 169, 181-85 (2d Cir. 2012); Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 310-33 (D. Conn. 2012); Golinski v. United States Office of Pers. Mgmt., 824 F. Supp. 2d 968, 985-90 (N.D. Cal. 2012); In re Balas, 449 B.R. 567, 573-75 (Bankr. C.D. Cal. 2011); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010); Varnum v. Brien, 763 N.W.2d 862, 885-96 (Iowa 2009); In re Marriage Cases, 183 P.3d 384, 441-44 (Cal. 2008); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 425-31 (Conn. 2008); see also, e.g., Brief of the United States on the Merit Question at 35-36 (“The government has not lightly concluded that the Court’s decisions dictate that heightened scrutiny applies to classifications based on sexual orientation.”) (Feb. 2013) & Brief of Constitutional Law Scholars Bruce Ackerman, et al., as Amici Curiae Addressing the Merits at 33 (“[L]aws that classify individuals for disparate treatment on the basis of their sexual orientation trigger heightened scrutiny”) (Feb. 2013), United States v. Windsor, No. 12-307 before the United States Supreme Court, attached hereto

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as Exhibits 8 & 12, respectively. Plaintiffs likewise urge this Court to faithfully apply the Supreme Court’s binding criteria to reach the same conclusion, for reasons set forth in more detail in Plaintiffs’ pending motion for summary judgment.12 See Plaintiffs’ Motion at 26-33. Furthermore, the State Defendants are correct that the Supreme Court in Windsor did not address the status of sexual orientation as a class under equal protection. See generally United States v. Windsor, 133 S. Ct. 2675 (2013). Instead, the Supreme Court issued a ruling that the type of discrimination embodied in DOMA, which is the same type of discrimination embodied in Utah’s Marriage Discrimination Laws, does not withstand scrutiny under due process and equal protection, irrespective of the standard of review. See Plaintiffs’ Motion at 18-26. In so holding, this Court should note that the Supreme Court expressly acknowledged -- and then let stand -- the Second Circuit’s holding that heightened scrutiny applies to classifications based on sexual orientation. See Windsor, 133 S. Ct. at 2684 (“[T]he Court of Appeals for the Second Circuit affirmed the District Court’s judgment. It applied heightened scrutiny to classifications based on sexual orientation, as both the Department and Windsor had urged.”); see also Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012) (classifications based on sexual orientation are subject to heightened scrutiny as quasisuspect). While Plaintiffs urge this Court to find that classifications based on sexual orientation are at least quasi-suspect, this Court need not even reach this issue under Windsor to enter judgment in Plaintiffs’ favor, as discussed in the preceding section and in Plaintiffs’ Motion. See Plaintiffs’ Motion at 18-26.
12

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B.

The Relevant Supreme Court Case Law Suggests That Heightened Scrutiny Should Apply to Classifications Based on Sexual Orientation

While the Supreme Court has never expressly stated -- one way or the other -whether classifications based on sexual orientation are suspect or quasi-suspect, the analysis in the relevant cases suggest that the Court would so hold if squarely presented the issue, or that the Supreme Court may have in fact already spoke to this issue in Windsor. At the very least, these cases do not prevent this Court from making such a finding. First, as discussed in the preceding section and in Plaintiffs’ Motion, classifications based on sexual orientation meet the criteria established in the Supreme Court’s cases for heightened scrutiny. See Plaintiffs’ Motion at 26-33. Second, the 1996 case of Romer v. Evans supports, or at least does not prevent, this Court from finding that classifications based on sexual orientation are at least quasisuspect. In Romer, the Supreme Court invalidated a Colorado law repealing existing (and prohibiting future) legal protections for gay and lesbian individuals, by finding that the law failed “even” rational basis review. 517 U.S. 620, 632 (1996) (“Amendment 2 fails, indeed defies, even [the] conventional inquiry. . . . [I]t lacks a rational relationship to legitimate state interests.”). Accordingly, the Supreme Court in Romer did not reach the issue of whether classifications based on sexual orientation are suspect or quasisuspect, including because there was no need in the case to decide whether heightened scrutiny applied.

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Notably, the Romer opinion acknowledged sexual orientation as a trait and not just a means of categorizing a group associated with particular behavior or sexual conduct, thereby signaling an important departure from the Supreme Court’s previous decision in Bowers v. Hardwick, 478 U.S. 186 (1986). See, e.g., Romer, 517 U.S. at 633 (the amendment “identifies persons by a single trait and then denies them protection across the board”). Further, Romer, for the first time, suggested that more than mere deference to the State was required when evaluating the rights of gay and lesbian individuals. See id. at 633 (“discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the [constitution]”) (internal uotation and citation omitted; emphasis added). As this Court is aware, Romer signaled what was yet to come, as this very language was repeated by the Supreme Court 17 years later in support of its decision in Windsor. See Windsor, 133 S. Ct. at 2692 (laws burdening gay and lesbian individuals, as cases of “unusual character,” would be subject to a form of heightened scrutiny, and reviewing DOMA under such a standard). Third, the 2003 case of Lawrence v. Texas likewise supports, or at least does not prevent, this Court from finding that classifications based on sexual orientation are at least quasi-suspect. In Lawrence, the Supreme Court invalidated Texas’s criminal ban on sodomy by finding that the law violated the Due Process Clause of the Fourteenth Amendment. 539 U.S. 558, 578 (2003). Again, the Supreme Court did not evaluate the law under an equal protection analysis, nor reach the issue of the appropriate level of scrutiny for classifications based on sexual orientation, because it did not need to reach

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this issue to hold the Texas law unconstitutional. Notwithstanding, the majority opinion is a helpful context for this case. While the Supreme Court in Lawrence declined to base its holding on the Equal Protection Clause, ruling instead on the basis of substantive due process, the Supreme Court expressly stated that such an argument was “tenable.” Id. at 574. The Supreme Court then went on to explain how its Due Process holding would advance the Equal Protection argument, in any case: “Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.” Id. at 575 (emphasis added). Fourth and finally, the 2013 case of United States v. Windsor likewise supports, or at least does not prevent, this Court from finding that classifications based on sexual orientation are at least quasi-suspect. In Windsor, the Supreme Court invalidated DOMA based on a violation of the Due Process Clause of the Fifth Amendment. 133 S. Ct. 2675, 2695 (2013) (holding that “[t]he liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the e ual protection of the laws,” and that DOMA was a “deprivation of such liberty.”) Again, the Supreme Court did not discuss whether classifications based on sexual orientation are suspect or quasi-suspect, because it did not need to resolve that issue to resolve the case. However, as discussed in the preceding section, the Supreme Court expressly acknowledged -- and let stand -- the Second Circuit’s holding that classifications based on sexual orientation are suspect. Further, the Supreme Court

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indicated that laws that deliberately target politically unpopular groups, as cases of “unusual character,” would be subject to a closer examination of the law’s purpose and effects, and did in fact review DOMA under such standard. Id. at 2692 (quoting Romer, 517 U.S. at 623). The Supreme Court in Windsor concluded that DOMA was not sufficiently connected to a legitimate governmental purpose because its “interference with the equal dignity of same-sex marriages . . . was more than an incidental effect of the federal statute. It was its essence.” Id. The Court held that DOMA “is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” Id. at 2696. In other words, the Supreme Court did not merely defer to Congress, but looked to the purpose of the legislation, and whether the classification was in fact drawn to disadvantage gay and lesbian individuals. As such, the Windsor decision, particularly given the Supreme Court’s well-established mandated criteria for heightened scrutiny, as well as the background of Romer and Lawrence, strongly suggests that classifications that impose broad and undifferentiated burdens upon politically unpopular groups are subject to more than mere deference to a State’s potential rationale, and that the State bears the burden of showing that the law is not purely to disadvantage an identifiable group, even where the law may also (conceivably and incidentally) serve some other governmental interest. In sum, Windsor, at a minimum, supports that the Court’s review now includes a close examination of a law’s purpose and effects when a law targets a politically

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unpopular minority group. See United States v. Windsor, 133 S. Ct. 2675, 2692-93 (2013). Utah’s Marriage Discrimination Laws, like DOMA, are also invalid because “no legitimate purpose overcomes the purpose and effect to disparage” same -sex couples in Utah. Id. at 2696. Likewise, “[the] essence” of Utah’s laws is the “interference with the equal dignity of same-sex marriages.” Id. at 2693. The plain language and history of these laws demonstrate they are motivated by animus, as discussed, supra, and in Plaintiffs’ Motion, and that the “classification of persons [is] undertaken for its own sake, something the E ual Protection Clause does not permit.” Romer v. Evans, 517 U.S. 620, 635 (1996). In conclusion, the Supreme Court has never foreclosed a finding of suspect or quasi-suspect classification with respect to sexual orientation, and the cases in fact support such a conclusion. Further, as discussed in the next section, the law of the Tenth Circuit likewise does not foreclose such a finding by this Court. C. The Tenth Circuit's Decision in Price-Cornelison v. Brooks Does Not Prohibit This Court From Finding Sexual Orientation Classifications Are at Least Quasi-Suspect

Despite the Supreme Court precedent already discussed, which compels a finding by this Court that the Marriage Discrimination Laws should be reviewed under heightened scrutiny, the State Defendants argue that, under the Tenth Circuit’s decision in Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir.2008), this Court is bound to find this case must be reviewed under rational basis scrutiny. However, this argument fails. Price-Cornelison involved the claim of disparate treatment by a local law official in enforcing a protective order of a lesbian victim of domestic violence. See id. at 1110

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n.4 (“Price-Cornelison specifically allege[d] discrimination against lesbian victims of domestic violence rather than discrimination against lesbians generally. . . . [as the] evidence[]indicat[ed] that [police] actions favored [Price-Cornelison’s cohabitating partner], who is herself a lesbian.”). Moreover, while “[i]n the district court, P riceCornelison also alleged lesbians comprise a suspect class, warranting strict scrutiny[,] Price-Cornelison [did] not reassert that claim [] on appeal.” Id. at 1113 n.9. Accordingly, whether sexual orientation in general constituted a suspect class was not an issue on appeal in Price-Cornelison. Id. Moreover, while the Tenth Circuit noted that, “[i]n any event, this court . . . has previously rejected the notion that homosexuality is a suspect classification,” id., the only support cited for that proposition was the then 13-year-old (now 18-year-old), pre-Lawrence, case of Walmer v. Department of Defense, 52 F.3d 851, 854 (10th Cir. 1995). Id. Ultimately, the court held that Price-Cornelison had sufficiently established that her constitutional rights to e ual protection were violated, because the Court “[could not] discern on this record, a rational reason to provide less protection to lesbian victims of domestic violence than to heterosexual domestic violence victims.” Id. at 1114. The Price-Cornelison case does not dictate the level of scrutiny to be applied in this case for several reasons. First, as expressly stated in the Tenth Circuit’s decision, whether classifications based on sexual orientation in general were and are suspect was not an issue raised on appeal. Id. at 1113 n.9. Accordingly, the court’s discussion of its previous holdings in a footnote was merely dicta, and not binding on this Court in this case in determining whether sexual orientation is a suspect or quasi-suspect class

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for purposes of determining the level of scrutiny. See Bates v. Dep't of Corr. of Kan., 81 F.3d 1008, 1011 (10th Cir. 1996) (“[A] panel of this Court is bound by a holding of a prior panel of this Court but is not bound by a prior panel's dicta."); see also United States v. Rickett, No. 11-2165, 2013 U.S. App. LEXIS 18464, at *23-24 (10th Cir. Sept. 5, 2013) (quoting Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1065 (2005) ("A holding consists of those propositions along the chosen decisional path or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.")). Further, the Tenth Circuit in Price-Cornelison, like the Supreme Court in Romer v. Evans, did not reach the issue of whether classifications based on sexual orientation are suspect, because the court found that the discrimination at issue did not even survive rational basis review. Compare Price-Cornelison, 524 F.3d at 1114 (police had no rational reason for discriminating against Price-Cornelison) with Romer, 517 U.S. 620, 632 (1996) (Colorado law did not “even” survive rational basis review). As such, there was no need for the Price-Cornelison court to reach this issue in order to resolve Price-Cornelison’s claim, further supporting that any discussion of sexual orientation as a class was non-binding dicta. Finally, and most importantly, to the extent the Tenth Circuit’s discussion of its past holding is more than mere dicta, it should be rejected because the only Tenth Circuit case the Price-Cornelison court cites is a case decided in 1995 – 8 years before Lawrence v. Texas, 539 U.S. 558 (2003). See Price-Cornelison, 524 F.3d at 1113 n.9

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(citing Walmer, 52 F.3d at 854). In Walmer, the Tenth Circuit affirmed the denial of a preliminary injunction in favor of a lesbian major in the Army, who sought to prevent the Army from discharging her for engaging in sexual conduct with another woman, including because the movant would not likely prevail on the merits of her Equal Protection claim. 52 F.3d at 852-54. In wake of the Supreme Court’s decision in Lawrence, Walmer can no longer be considered good law for any proposition related to discrimination against gay and lesbian individuals. Accordingly, any reliance on Walmer in Price-Cornelison would not have binding effect on this Court, thereby also calling into serious question any binding effect of Price-Cornelison’s dicta on this Court. In sum, the decision of the Tenth Circuit in Price-Cornelison does not prevent this Court from finding classifications based on sexual orientation are subject to heightened scrutiny under the criteria and cases of the Supreme Court, because any discussion of the subject in Price-Cornelison was dicta, and because the 1995 case solely relied upon can no longer be considered good law in the wake of Lawrence.13 The American Civil Liberties Union (“ACLU”) has filed a memorandum in support of Plaintiffs’ Motion as amicus curiae. See Docket No. 65-1. In its brief, the ACLU states that, “The Tenth Circuit has held that sexual orientation is not a suspect classification receiving the most [exacting] level of scrutiny . . . .” and that there is “Tenth Circuit precedent holding that sexual orientation is not a suspect classification.” Id. at 3 & 8. Because there is no binding, post-Lawrence authority in this Circuit on this issue (as discussed, supra), Plaintiffs disagree with these statements by the ACLU. However, Plaintiffs do agree with the ACLU that classifications based on sexual orientation meet the Supreme Court’s criteria for heightened scrutiny; that the cases of the Tenth Circuit do not preclude this Court from finding classifications based on sexual orientation are quasi-suspect and subject to intermediate scrutiny; and that some jurisdictions have erroneously relied upon pre-Lawrence authorities to support holdings that classifications based upon sexual orientation do not require heightened scrutiny, even after Lawrence.
13

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VI.

CLASSIFICATIONS BASED ON GENDER ALSO REQUIRE HEIGHTENED SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE

The State Defendants argue that Utah’s Marriage Discrimination Laws do not differentiate between individuals based on gender, since neither women nor men may marry a person of the same sex. However, the “differential treatment or denial of opportunity” that is the result of Utah’s laws is based upon the gender of the individuals involved. United States v. Virginia, 518 U.S. 515, 532-33 (1996). In other words, but for the gender of each Plaintiff, they could marry the person of their choice. Therefore, because the limitation created on civil marriage under the Marriage Discrimination Laws depends upon an individual’s gender, these laws create gender-based classifications. As discussed in Plaintiffs’ Motion, such classifications are reviewed under intermediate scrutiny. See Plaintiffs’ Motion at 35. Accordingly, the State Defendants’ motion must be denied, and Plaintiffs’ Motion granted, because the State has come forth wi th no evidence to support that its Marriage Discrimination Laws are substantially related to any state interest, let alone an important state interest. Further, the State Defendants’ “e ual application” defense was expressly considered and rejected by the Supreme Court in Loving v. Virginia: [T]he State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications do not constitute an invidious discrimination based upon race. . . . [W]e reject the notion that the mere “e ual application” of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscriptions of all invidious discriminations. . . . In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very

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heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. 388 U.S. 1, 8(1967). In subsequent cases, the Supreme Court has held that gender classifications — like race classifications — are subject to heightened scrutiny under the Equal Protection Clause. United States v. Virginia, 518 U.S. 515, 532-33 (1996); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality opinion). As a result, the State’s “e ual application” defense of the Marriage Discrimination Laws in this case must suffer the same fate as Virginia’s prohibition against interracial marriage in Loving. See Baehr v. Lewin, 852 P.2d 44, 68 (Haw. 1993) (plurality) (“Substitution of “sex” for “race” . . . [in the quoted passage from Loving] yields the precise case before us together with the conclusion that we have reached. ”). In addition, the tradition of restricting an individual’s choice of spouse based on gender does not rationally further any interest of the State, and in fact harms Utah. Even if preserving “traditional” marriage based upon opposite gender were a legitimate goal on its own (which it is not, for reasons discussed in this opposition), “the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles.” Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 998 (N.D. Cal. 2010); see also Cott Decl., ¶¶ 35-36 (discussing the historical evolution of spouse’s respective roles and rights). Utah has eliminated all legally mandated gender roles within marriage, except the requirement of opposite sex in its Marriage Discrimination Laws. Thus, the laws at issue -- which are based on gender stereotypes about the supposed “complementarity” of men and women in their domestic roles -40

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“enshrine[] . . . a gender restriction that . . . [is] nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.” Perry, 704 F. Supp. 2d at 998. Moreover, Utah’s Marriage Discrimination Laws, in fact, harm the State’s interest in e uality, “because [they] mandate that men and women be treated differently based only on anti uated and discredited notions of gender.” Id. In sum, the tradition of restricting an individual’s choice of spouse based on gender does not rationally further any legitimate interest of the State, let alone any important interest, and the State Defendants’ motion must be denied. VII. UTAH’S MARRIAGE DISCRIMINATION LAWS FAIL EVEN UNDER RATIONAL BASIS REVIEW

Utah’s Marriage Discrimination Laws are subject to heightened scrutiny under United States v. Windsor, 133 S. Ct. 2675 (2013); the Due Process Clause; and the Equal Protection Clause, as discussed, supra, and in Plaintiffs’ Motion. However, even if this were not the case, Utah’s Marriage Discrimination Laws are still unconstitutional because they cannot survive under the very lowest level of scrutiny, rational basis review, and must therefore be struck down. Contrary to the State’s position, even the rational basis standard is not a “toothless one.” Lyng v. Int’l Union, 485 U.S. 360, 375 (1988). This test, “which requires that legislative classifications be ‘rationally related to a legitimate governmental interest’ . . . contains two substantive limitations on legislative choice: legislative enactments must implicate legitimate goals, and the means chosen by the legislature must bear a rational relationship to those goals.” Id. (internal citation omitted; emphasis added); see also Romer v. Evans, 517 U.S. 620, 633 (1996) (“By re uiring

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that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.”). In sum, the State’s purported rationale “must find some footing in the realities of the subject addressed by the legislation.” Heller v. Doe, 509 U.S. 312, 321 (1993) (emphasis added). Further, it should go without stating that “a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Romer, 517 U.S. at 634 (emphasis in original) (quoting United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)). The State of Utah points to interests that are not “legitimate” in the first instance, as they claim that the State may continue to discriminate against same-sex couples because they have always done so. And, even where the goals may be legitimate, such as those related to children, Utah’s Marriage Discrimination Laws do not bear any relationship – rational or otherwise – to obtaining them, and in fact work against them. Notably, every purported interest presented by the State in this case was already presented to the Supreme Court in Windsor, and rejected as insufficient to overcome the prejudice to same-sex couples from their unequal treatment under DOMA. See Windsor, 133 S. Ct. at 2696 (“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure . . . .”); see also BLAG Brief at 28-49 (list of potential state interests rejected by the Supreme Court in Windsor as not sufficient to “overcome[] the purpose and effect to disparage and injure” samesex couples).

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Again, the State Defendants’ arguments are not new. They have been presented to the nation’s highest court in analogous circumstances, and rejected as not justifying a violation of the Due Process Clause of the Fifth Amendment. Likewise, these very same rationales by the State of Utah do not overcome the purpose and effect to disparage and injure Utah’s gay and lesbian citizens, in violation of the Fourteenth Amendment. The State Defendants’ motion must therefore be denied. A. There Is No Rational Relationship Between Excluding SameSex Couples From Marriage and the Promotion of OppositeSex Marriage

This case is not about invalidating the marriage of a man to a woman, or whether the union of a man to a woman through marriage is rational. This case is about whether the State of Utah’s exclusion of same-sex couples from civil marriage violates the Fourteenth Amendment. These subjects are not related, as allowing same-sex couples to marry will not impact any rights, protections, responsibilities, and benefits that currently flow to married opposite-sex couples, or otherwise affect the decision of opposite-sex couples to marry, or to stay in marriage. Logically, there is no connection. Moreover, all empirical data shows there is no negative impact of marriage equality on opposite-sex marriage, and the State of Utah has not come forward with any empirical evidence to the contrary. In sum, there is no relationship between excluding same-sex couples from civil marriage, and promoting the incidents of opposite-sex marriage. Without this link, none of the interests advanced by the State that directly correlate to the benefits of oppositesex marriage to individuals, families, and society, may objectively and rationally be

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reached through Utah’s Marriage Discrimination Laws, and the laws fail as a matter of law under rational basis review. 1. The Relevant Rational Relationship Inquiry Is Not Whether It Is Rational for Utah to Permit Opposite-Sex Marriage, but Rather Whether It Is Rational for Utah to Exclude Same-Sex Couples from Civil Marriage to Achieve That Goal

The State Defendants attempt to frame the issue of the State’s interest in terms of whether it is rational for the State to advance opposite-sex marriage, or whether the union of a man and a woman in marriage is “irrational.” However, the claim that the intent of the Marriage Discrimination Laws is to promote opposite-sex marriage, and not to exclude same-sex marriage, is belied by the plain language of these laws. Under basic principles of statutory construction, the Court must look first to this language to determine the legislative purpose. See Bo Hae Lee v. Mukasey, 527 F.3d 1103, 1106 (10th Cir. 2008) (“We begin by analyzing the plain language employed by [the legislative body], and we must give words their ordinary and natural meaning. Importantly, we assume that the legislative purpose is expressed by the ordinary meaning of the words used”) (internal uotation and citation omitted). Under the ordinary meaning of the words used in Utah’s Marriage Discrimination Laws, the laws were intended to exclude same-sex couples from marriage, and from any union that would be similar to marriage, and not to promote or enlarge the existing rights of opposite-sex couples to marry: The following marriages are prohibited and declared void: . . . between persons of the same sex. Utah Code Ann. § 30-1-2 (2013) (same-sex exclusion clause effective July 15, 1977).

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(1)(a) It is the policy of this state to recognize as marriage only the legal union of a man and a woman as provided in this chapter. (b) Except for the relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and a woman because they are married. . . . Id. at § 30-1-4.1 (2013) (effective March 23, 2004). (1) Marriage consists only of the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect. Utah Const. Art. I, § 29 (2013) (effective January 1, 2005). Thus, the intended operation of the Marriage Discrimination Laws, as shown by their plain language, cannot be ignored when framing the rational relationship test. 14 Plaintiffs do not dispute the benefits of marriage to opposite-sex couples, their families, and society at large. Indeed, Plaintiffs (and their families) seek to experience and enjoy these benefits, too. Those that would have this Court view the current dispute in terms of whether opposite-sex marriage is good for the State obfuscate the real issue, which is whether the State has any legitimate objective that is rationally related to excluding same-sex couples from marriage, or any similar union. The State does not, and the laws at issue fail as a matter of law, even under rational basis review.

As discussed, supra, this exclusionary intent is also evidenced through the materials provided to the voters in the November 2004 election, as well as in the floor debates in the Utah House of Representatives.

14

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2.

As a Matter of Law, Any Purported Interest in Encouraging Opposite-Sex Couples to Marry (and Encouraging the Incidents of Such Marriages) Is Not Rationally Related to Utah’s Marriage Discrimination Laws

Any purported interest by the State in encouraging opposite-sex couples to marry through the enactment of Utah’s Marriage Discrimination Laws is not credible, and fails as a matter of law. “This is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between [Utah’s] treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.” Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 15 (1st Cir. 2012) (citation omitted); accord Windsor v. United States, 699 F.3d 169, 188 (2d Cir. 2012); Golinski v. United States Office of Pers. Mgmt., 824 F. Supp. 2d 968, 998 (N.D. Cal. 2012); Varnum v. Brien, 763 N.W.2d 862, 901-02 (Iowa 2009). It goes without saying that, prior to enactment of Utah’s first Marriage Discrimination Law in 1977, the second Marriage Discrimination Law in 2004, and Amendment 3 in 2005, opposite-sex couples in Utah could and did marry. As such, the enactment of the Marriage Discrimination Laws did not enable opposite-sex marriage, as these marriages were already recognized by the State. The Marriage Discrimination Laws – which are clearly written with language to exclude same-sex couples from marriage, and not to promote opposite-sex marriage through any expansion of alreadyexisting rights – demonstrate that the intended operation of these laws was and is to exclude same-sex couples from marriage, and to disadvantage these couples in relation

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to their similarly-situated heterosexual counterparts.15 Accordingly, any purported interest by the State in encouraging opposite-sex marriage (and its incidents) must be shown by proving that excluding same-sex couples from marriage benefits opposite-sex marriage in a way that promotes the stated goals of the State. However, this cannot be done. The promotion of opposite-sex marriage is not rationally achieved by excluding same-sex couples from marriage. Logically speaking, there is no objective connection. In addition, the empirical evidence conclusively demonstrates that there is no connection. First, looking to Utah, passage of the Marriage Discrimination Laws did not result in an increase in the marriage rate, or appreciably change the rate of divorce in Utah. For example, since the passage of Amendment 3, the marriage rate in Utah has steadily declined from 9.8% in 2005, to 8.6% in 2011. See Center for Disease Control and Prevention’s National Vital Statistics System, Marriage Rates by State: 1990, 1995, and 1999-2011, at http://www.cdc.gov/nchs/data/dvs/marriage_rates_90_95_99-11.pdf (last visited on Nov. 8, 2013); see also id., Divorce Rates by State: 1990, 1995, and 19992011, at http://www.cdc.gov/nchs/data/dvs/divorce_rates_90_95_99-11.pdf (last visited

“Research shows that same-sex couples closely resemble heterosexual couples. Like their heterosexual counterparts, many lesbian, gay, and bisexual individuals form loving, long-lasting relationships with a partner.” Peplau Decl., ¶ 12; see also id., ¶¶ 33-37 (“Negative stereotypes about same-sex couples are common in America, leading many people to believe and argue that same-sex relationships are fundamentally different from, and inferior to, heterosexual relationships. But the consensus of the scientific research is that this characterization is inaccurate. . . .”).

15

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on Nov. 8, 2013) (divorce rate constant at 3.7 - 3.8% for the five years previous to report). Accordingly, Utah’s ban on same-sex marriage has not had a positive effect on opposite-sex marriage in the State, including because there is no relationship between allowing same-sex couples to marry, and the decision of opposite-sex couples to marry, or to stay married. Second, in those States that have allowed same-sex marriage, opposite-sex marriage has not been negatively affected by the legal recognition of same-sex couples and their families: There is no scientific support for the notion that allowing same-sex couples to marry would harm different-sex relationships or marriages. The factors that affect the quality, stability, and longevity of different-sex relationships would not be affected by marriages between same-sex couples. . . . [T]he data from Massachusetts suggest that marriage by same-sex couples would not harm marriage for different-sex couples. The finding that marriages between same-sex couples lacks a correlation with breakups between different-sex spouses is entirely consistent with scientific theories about marriage and our knowledge about the sociological and psychological reasons why people divorce. Marriage by same-sex couples does not pose a threat to the stability of marriage for different-sex couples. Peplau Decl., ¶ 15 & 63; see also id., ¶¶ 56-62 (discussing the scientific theories and sociological and psychological reasons people marry and divorce, and reviewing data from Massachusetts); Badgett Decl., ¶¶ 69-77 (discussing data from the Netherlands, the first country to allow same-sex marriage, as well as recent data from the United States, and concluding that “[A]n analysis of demographic trends, population -based surveys, and qualitative interviews shows no evidence that granting the right to marry to

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same-sex couples will have any effect on heterosexual couples’ willingness to marry, their probability of divorce, or the non-marital birth rate.”). Notably, just weeks ago, the fifteen jurisdictions recognizing same-sex marriages16 filed a brief as amici curiae in the Ninth Circuit on behalf of the same-sex plaintiffs challenging the ban in Nevada, arguing that same-sex marriages in their states has not negatively affected the institution of marriage: Speculation that removing state restrictions on marriage between same-sex couples will erode the institution, as measured by the markers cited below -- marriage, divorce, and nonmarital birth rates -- does not justify discriminatory marriage laws. . . . The Amici States’ experience with equal marriage rights should carry substantially more weight than surmise or conjecture in the constitutional analysis of the challenged laws. . . . And, the actual data show that the conjecture about the negative impact of same-sex marriage is unfounded. . . . Marriage rates in states that permit same-sex couples to marry have generally improved. . . . Although there are limited data available on different-sex marriage rates in particular, the data that are available do not support the theory that same-sex marriage has a negative effect on different-sex marriage rates. To the contrary, it appears that rates of different-sex marriage in states licensing same-sex marriages are equivalent to rates in states that do not recognize same-sex marriage. In fact, in some states, the number of different-sex marriages increased in the years following the state’s recognition of same-sex marriages. . . . The Amici States’ experience directly contradicts the suggestion that allowing same-sex couples to marry leads to increased rates of divorce. In four of the seven states that allowed same-sex couples to marry as of 2011, divorce rates for the years following legalization stayed That number has now increased to seventeen with the recent addition of New Jersey and Hawaii.
16

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at or below the divorce rate for the year preceding it, even as the national divorce rate increased. . . . [Finally], [t]he suggestion that allowing same-sex couples to marry will lead to an increase in nonmarital births is likewise unsupported. 15 States’ Brief at 30-35 (emphasis added; internal footnotes and citation omitted). In sum, there is simply no evidence that allowing or prohibiting same-sex couples to marry has any effect – direct or indirect – on the decision of opposite-sex couples to marry, not to marry, or to stay married. Without this link, even if a stated goal of the State is positively associated with an increase in the rate of opposite-sex marriage (like “responsible procreation,” for example), and even if that goal is a noble one, it is not sufficient to support the exclusion of Utah’s same-sex couples from civil marriage, even under rational basis review. B. Utah’s Marriage Discrimination Laws Are Not Rationally Related to Any Interest in Bettering the Lives of Utah’s Children

Marriage inequality cannot be justified by any genuine interest in bettering the lives of Utah’s children. Utah’s Marriage Discrimination Laws do nothing to make children being raised by opposite-sex couples better off. And, it is without question that these laws in fact harm, and significantly disadvantage, children raised in households headed by same-sex couples, as recently recognized by the Supreme Court: [Marriage inequality] humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. . . . DOMA also brings financial harm to children of samesex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. . . . And it denies or reduces benefits allowed to families upon the loss of a

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spouse and parent, benefits that are an integral part of family security. . . . DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes [DOMA’s] purpose and effect to disparage and to injure . . . . Windsor, 133 S. Ct. at 2694-96.17 Plaintiffs agree with the State Defendants that “[s]ociety benefits from an institution that provides the best opportunity for a child to reach his or her personal potential as an individual and as a productive citizen all the while minimizing the cost to society of caring for and rearing the child.” State Defendants’ Motion at 28 -29. Plaintiffs also agree that a “child is not the mere creature of the state” and that “those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him [or her] for additional obligations.” Id. at 29. Plaintiffs agree that “parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions,” and that “democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.” Id. at 29 & 31.

Again, the very same justifications for marriage inequality that the State Defendants present in this case (responsible procreation, optimal childrearing, etc.) were already presented to this nation’s highest court, and rejected, in Windsor. See BLAG Brief at 28-49. Congress’s claimed interests in the well-being of children were insufficient to support DOMA’s exclusion of same-sex couples from marriage under the Fifth Amendment. Likewise, the State of Utah’s purported interests in the well-being of children are not sufficient to support Utah’s Marriage Discrimination Laws under the Fourteenth Amendment.

17

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However, Plaintiffs fundamentally disagree with the narrow view that the State Defendants take of families, and who are, should be, and may be parents to children. For example, 3,861 same-sex couples were living together in Utah in 2008. Patterson Decl., ¶ 40. Approximately 30% of these Utah couples were raising children under the age of 18, reporting, on average, 2.5 children per household. Id. Thus, in 2008, approximately 2,900 of Utah’s children under 18 years of age were being raised by same-sex couples. Id. Moreover, approximately 2% of adopted children in Utah live with a lesbian or gay parent. Badgett Decl., ¶ 14. Further, according to a recent poll by the Williams Institute, “[a]t 26 percent, Salt Lake City, Utah topped the list of large U.S. cities with the highest percentage of same-sex couples raising children [per capita].” Gay Parents in the U.S.: Salt Lake City Has Highest Percentage of Same-Sex Couples Raising Kids, Huffington Post, at http://www.huffingtonpost.com/2013/05/22/ gay-parents-salt-lake-city-_n_3314969.html (updated Mar. 28, 2013; last visited Nov. 10, 2013). These families exist. They are real. And the children in these families are the only children in Utah that are affected by the laws at issue in this case. The State of Utah should be concerned with the well-being of all children within the State -- not just those children in families the State deems worthy of protection and benefit (i.e., opposite-sex married couples raising their biological children). The State of Utah’s unjustified, une ual concern for its citizens, as shown by its denigration of “untraditional” families through its marriage laws, is precisely why our Constitution includes a guarantee of equal protection under the law. Plaintiffs agree with the State

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Defendants that “marriage is society’s best means of maximizing private welfare to the vast majority of children,” State Defendants’ Motion at 29, which is why, as a matter of law, it is irrational for the State of Utah to exclude same-sex couples from marriage, when allowing them to marry would benefit the children being raised in same-sex households, while having no effect, and causing no harm, to children being raised in other households. 1. Utah’s Marriage Discrimination Laws Are Not Rationally Related to any Interest in Promoting Responsible Procreation

The State Defendants argue that the exclusion of same-sex couples from marriage is justified based on an interest in promoting responsible procreation within marriage. They contend that marriage ine uality is justified because “Traditional marriage with its accompanying governmental benefits provides an incentive for opposite-sex couples to commit together to form [][] a stable family in which their planned, and especially unplanned, biological children may be raised.” State Defendants’ Motion at 28. However, the State completely ignores that allowing or denying same-sex couples the right to marry does nothing to alter these “accompanying governmental benefits” and “incentive[s]” to opposite-sex couples. This claimed interest is therefore not rationally related to Utah’s Marriage Discrimination Laws. In particular, there is no evidence to support that denying marriage equality to gay and lesbian individuals will increase the likelihood that opposite-sex couples capable of procreating will decide to get married; nor does permitting gay and lesbian individuals to marry decrease this likelihood. See Windsor v. United States, 833 F. Supp. 2d 394, 405

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(S.D.N.Y. 2012) (the responsible procreation and childrearing justification for denying marriage e uality “is ‘so far removed’ from the classification, [that] it is impossible to credit” and relies on “factual assumptions that are beyond the ‘limits of rational speculation’”) ( uoting Romer v. Evans, 517 U.S. 620, 635 (1996) & Heller v. Doe, 509 U.S. 312, 320(1993)); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 972 (N.D. Cal. 2010) (“[p]ermitting same-sex couples to marry will not affect the number of oppositesex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriage”); Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 337-39 (D. Conn. 2012) (rejecting purported link between marriage equality and incidence of extra-marital procreation); see also, e.g., Goodridge v. Dep’t Pub. Health, 79 N.E.2d 941, 963 (Mass. 2003) (“The department has offered no evidence that forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children.”). In sum, Utah’s Marriage Discrimination Laws do “not make it more likely that opposite sex couples will marry and raise offspring biologically related to both parents.” Perry, 704 F. Supp. 2d at 999-1000. Moreover, no state has ever required procreative ability or willingness in order to marry. Indeed, it is beyond dispute that the Constitution protects the right of all heterosexual individuals to marry, irrespective of their ability or desire to procreate, including the elderly, the infertile, and the incarcerated. For example, in Turner v. Safley, the Supreme Court held that even those prisoners with no right to conjugal visits have the fundamental right to marry, including because “many important at tributes of

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marriage remain, however, after taking into account prison life . . . [including] expressions of emotional support[,] . . . [the] exercise of religious faith as well as an expression of personal dedication.” 482 U.S. 78, 95 (1987). In Zablocki v. Redhail, the Supreme Court struck down a statute barring marriage for individuals with child support obligations, distinguishing the right to marry as separate from procreation and childrearing. 434 U.S. 374, 376-77 & 386 (1978). Finally, the Supreme Court has long held that married couples have the right not to procreate. Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965). Assuming that Utah has an interest in encouraging sexual activity to occur within marriage, Utah’s Marriage Discrimination Laws are in fact detrimental to that interest. As a direct result of Utah’s laws, “same-sex couples are not permitted to engage in sexual activity within marriage,” and therefore, “[t]o the extent proponents seek to encourage a norm that sexual activity occur within marriage to ensure that reproduction occur within stable households, [the Marriage Discrimination Laws] discourage[] that norm . . . .” Perry, 704 F. Supp. 2d at 1000. In conclusion, as a matter of law, there is no rational relationship between Utah’s purported interest in responsible procreation and its Marriage Discrimination Laws. a. The Fact That Some (Though Not All) Opposite-Sex Couples Are Capable of Procreation Is Not a Distinguishing Characteristic Sufficient to Exclude Same-Sex Couples From Marriage

As discussed throughout this opposition and Plaintiffs’ Motion, same-sex couples and opposite-sex couples are the same for all purposes relevant to marriage, and the State of Utah has no legitimate interest in differentiating between these unions. See

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Statement of Additional Undisputed Material Facts, supra. Still, the State Defendants contend that the classification in Utah’s Marriage Discrimination Laws, which is based purely on sexual orientation and gender, and not on procreative ability or the desire to raise children, should be upheld based on purported interests involving children, by relying on the statement in Johnson v. Robinson, 415 U.S. 361, 383 (1974), that such classifications are acceptable if “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.” Id. However, the State Defendants’ position is not well taken. First, “[w]hen a state distributes benefits une ually, the distinctions it makes are subject to scrutiny under the E ual Protection Clause of the Fourteenth Amendment.” Hooper v. Bernalillo County Assessor, 472 U.S. 612, 618 (1985). Thus, the State must justify its exclusion of same-sex couples from the benefits of marriage, and not just its inclusion of opposite-sex couples. See, e.g., id. (while purpose of rewarding Vietnam Veterans was valid, equal protection was violated by exclusion from tax benefit those who did not reside in the state before a certain date); see also, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448-50 (1985) (examining the city’s interest in denying housing for people with developmental disabilities, not in continuing to allow residence for others); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 535-38 (1973) (testing the federal government’s interest in excluding unrelated households from food stamp benefits, not in maintaining food stamps for related households); Eisenstadt v. Baird, 405 U.S. 438, 448-53 (1972) (requiring a state interest in the exclusion of unmarried couples from lawful access to contraception, not merely an interest in

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continuing to allow married couples access); Loving v. Virginia, 388 U.S. 1, 12 (1967) (question was not whether Virginia had reasons for providing marriage to same-race couples, but whether “restricting the freedom to marry solely because of racial classifications” violated e ual protection) (emphasis added). Second, Johnson does not support the State Defendants’ position. In that case , the issue was whether denying veteran educational benefits to a draftee, conscientious objector who performed alternative civilian service, was a denial of equal protection, considering that these benefits were available to other draftees. The argument was made that such benefits were available in order to encourage people to enlist in the Armed Forces, and that the government could therefore not justify providing the benefits to non-conscientious objector draftees, and not to conscientious objector draftees, considering that neither category of draftees volunteered or enlisted. Id. at 382. The Supreme Court found no equal protection violation because the differentiation was justified by substantial differences between the non-conscientious objectors (whether enlisting or drafted) and the conscientious objectors, including that the latter did not experience the same level of disruption to civilian life. Id. at 376-383. The Court also found that inclusion of the latter would not promote the interest of encouraging and/or making service as a soldier “more palatable,” since the educational benefits would not make “military service more attractive” to conscientious objectors, whose refusal to fight in the Armed Services is based “upon deeply held religious beliefs.” Id. at 382-83.

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Notably, the Supreme Court in Johnson also addressed the argument that the intent of the disparate treatment of conscientious objectors was to penalize them for their beliefs, stating: To be sure, if that were the purpose of the exclusion of the []conscientious objectors from the benefits of the Act, the classification would be unconstitutional, “for if the constitutional conception of ‘e ual protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). However, we have not been cited to, nor has our own research discovered, a single reference in the legislative history of the Act to support appellee's claim. We therefore find appellee's claim wholly lacking in merit. Id. at 383 n.18 (italics emphasis in original; bold emphasis added). As this Court is aware, this exact language was recently relied upon by the Supreme Court in Windsor, when it held DOMA unconstitutional because its exclusion of same-sex couples from marriage was based on a desire to harm a politically unpopular group, just like in this case. See United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (“DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles . . . . The Constitution’s guarantee of e uality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528, 534-535, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973).”). Moreover, unlike in Johnson, the legislative history of Utah’s Marriage Discrimination Laws is replete with support that the intent of these laws is to disadvantage Utah’s gay and lesbian citizens and to further private moral views, not to benefit children. If the State’s interest were the protection of

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children, then the classification would be drawn differently: opposite-sex couples unable or unwilling to have and raise children would be excluded from marriage, and same-sex couples raising children included. Unlike the draftee soldiers in Johnson, there is no reason to give opposite-sex couples who are unable or unwilling to have and raise children the benefits of marriage, while excluding same-sex couples from marriage -- especially those raising children, either through adoption or procreation.18 In sum, Utah’s Marriage Discrimination Laws are unconstitutional because they invidiously discriminate against same-sex couples, who, for all purposes relevant to marriage, are the same as their heterosexual counterparts, including with regard to the benefits of marrying since both same-sex and opposite-sex couples may have children inside or outside of marriage and both sets of couples -- and their children -- benefit in precisely the same ways when those couples are permitted to marry. However, even accepting the State’s position that the ability to procreate through sexual intercourse is a meaningful difference (which it is not), by denying same-sex couples the rights, protections, responsibilities, and benefits that flow from marriage -- while providing the same to opposite-sex couples incapable and/or unwilling to have children -- Utah’s laws treat similarly-situated citizens unequally, without any justification. Contrary to the State Defendants assertions, same-sex couples can and do procreate, albeit through artificial insemination, surrogacy, and/or other assisted reproductive technologies (“ART”). Indeed, many opposite-sex couples also use these technologies to procreate. Notwithstanding, the latter is allowed to marry, while the former is prohibited under Utah’s discriminatory laws. The distinction between families created through sexual intercourse, and those created through adoption or ART is constitutionally meaningless. The Fourteenth Amendment requires the State to treat all children and parents alike, if they are similarly situated.
18

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2.

Utah's Marriage Discrimination Laws Are Not Rationally Related to an Interest in Promoting Optimal Parenting and Childrearing

The State Defendants’ contend that Utah’s exclusionary laws are based on the State’s interest in the development and parenting of children. Again, this goal is not rationally related to the Marriage Discrimination Laws. Utah has no objective interest in promoting opposite-sex parents over same-sex parents. See Statement of Additional Undisputed Material Facts, supra. Even if it did, excluding same-sex couples from marriage does not promote the parenting of biological children by married opposite-sex parents. Furthermore, since same-sex couples in Utah do in fact have children, the State’s interest is undermined by its policy of marriage ine uality. The empirical evidence demonstrates that the gender of parents is not determinative of a child’s developmental outcome, and that same -sex parents and opposite-sex parents are of equal quality. As Dr. Patterson, a well-respected expert in this field testified: A considerable amount of research has examined the adjustment of children and adolescents who are growing up with lesbian or gay parents and/or same-sex couples. This body of work consists of more than 50 peer-reviewed empirical journal articles, and many additional articles and book chapters intended for professional audiences. . . . . . . Researchers have found children and adolescents of same-sex parents to be as emotionally healthy, as well-behaved, and as socially and educationally successful as their peers who have opposite-sex parents. The idea that there is an optimal gender mix of parents has received no empirical support from psychological research. The notation that children or adolescents with same-sex parents suffered developmental disadvantages due to their parents’ sexual orientation has likewise gone without empirical support Patterson Decl., ¶¶ 26 & 28.

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The State Defendants and Amici Curiae professors from Brigham Young University and Southern Utah University (“Amici Professors”) criticize the methodology of the research underlying such conclusions, stating that the studies rely on small, nonrandom samples. However, these studies are the only studies to date on same-sex parenting, they all reach the same findings, and these findings have been replicated, again and again, over a period of decades. As a result, all of the country’s ma jor medical, psychological, public health, and child welfare organizations agree that a parent’s sexual orientation and gender are not relevant to a child’s wellbeing. See APA Brief at 18-26 (“There Is No Scientific Basis for Concluding That Gay and Lesbian Parents Are Any Less Fit or Capable Than Heterosexual Parents, or That Their Children Are Any Less Psychologically Healthy and Well Adjusted”); ASA Brief at 6 -14. As such, the relevance of this data cannot be disputed, irrespective of its weight. And indeed, every court to consider the uestion has held that a person’s sexual orientation “is not relevant to the individual’s ability to perform and contribute to society.” See, e.g., Windsor v. United States, 699 F.3d 169, 182-83 (2d Cir. 2012). In contrast, there is no evidence to dispute the findings that the sexual orientation or gender of a parent affects children’s developmental outcomes, because the State Defendants’ studies are irrelevant, as they do not measure the impact of a parent’s sexual orientation or gender on parenting. All of the State Defendants’ studies suffer from the same logical flaw: They compare apples to oranges. They compare the children of married heterosexual parents to the children of divorced parents, or the

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children of single parents.19 If anything, these studies show that marriage is good for kids, and that two parents are better than one. But neither of these facts are material to

In particular, the State Defendants and Amici Professors rely on and cite to the work of Mark Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Soc. Sci. Res. 752, 763 (2012), to support their position that children are less likely to thrive when raised by gay and lesbian parents than if raised by heterosexual parents. See, e.g., State Defendants’ Motion at 35 (citing to Regnerus’s study to support “that children raised by married biological parents fared better than children raised in same-sex households in a range of significant outcomes”); Brief of Amici Curiae Professors . . . in Support of Defendants (“Amici Professors’ Brief”), Docket No. 72 at 12 & 18 (citing to Regnerus’s study to support that “[d]ecades of study on various parenting structures yield the near uniform conclusion that a biological mother and father provide optimal child outcomes” and that the study “[Does] Not Confirm the ‘No Differences’ Conclu sion About Child Outcomes Among Same-Sex Parents”). However, Regnerus’s study suffers from the same fundamental flaw as all of the State’s other evidence, again comparing apples to oranges. Although the study purports to describe children raised by “lesbian mothers” and “gay fathers,” the study itself admits that these are shorthand labels, which do not refer to children raised by same-sex couples. See Patterson Decl., ¶ 29. Instead, they refer to a group of adults who reported that at some point during childhood, one of their parents had a romantic relationship with a person of the same sex. See id. But in a breathtaking admission, the authors acknowledge that “just under half of such respondents reported that their biological parents were once married.” Regnerus, How Different . . . ? at 757. As a result, they concede, “a failed heterosexual union is clearly the modal method” in these families, which “distinguishes [the Regnerus study] from the numerous studies that have been entirely concerned with ‘planned’ gay and lesbian families.” Id. In other words, half of the respondents were raised by heterosexual parents who divorced. Moreover, “Fifty-eight (58) percent of those whose biological mothers had a same-sex relationship also reported that their biological mother exited the respondent’s household at some point during their youth, and just under 14% of them reported spending time in the foster care system, indicating greater-than-average household instability.” Id. Yet, when comparing the children of “lesbian mothers” to the children of “intact biological families,” the authors made no effort to control for these factors. The State Defendants and Amici Professors also cite to research by Kristen Anderson Moore to support their arguments that “research 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” and that “it is not simply the presence of two parents . . . but the presence of two biological parents that seems to support children’s development.” State Defendants’ Motion at 30 & Amici
(continued...)

19

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this case (except to the extent that they actually support allowing more couples to marry), nor are they disputed. However, even if parenting by individuals of opposite-sex of their biological offspring, within the bonds of marriage, were the optimal parenting paradigm (which has not been shown by empirical evidence),20 Utah’s Marriage Discrimination Laws would still bear no rational relationship to promoting this familial structure. Again, as already discussed extensively in this memorandum, excluding gay and lesbian individuals from marriage has no connection to opposite-sex marriage, divorce, cohabitation,
________________________ (...continued)

Professors’ Brief at 4-5, respectively (citing Moore, et al., Marriage From a Child’s Perspective, Child Trends Res. Br. 1-2 & 6 (June 2002)). Again, this is another case of apples to oranges. In fact, the authors of that study have added an introductory note to their study explicitly warning that no conclusions can be drawn from this research about the well-being of children raised by same-sex parents or adoptive parents. See id., (“This Child Trends brief summarizes research conducted in 2002, when neither samesex parents nor adoptive parents were identified in large national surveys. Therefore, no conclusions can be drawn from this research about the well-being of children raised by same-sex parents or adoptive parents.”). The version of this study included in the State Defendants’ appendix does not include this introductory note, but the complete article, with the introductory note, is available on the publication’s website at http://www.childtrends.org/wp-content/uploads/2013/03/MarriageRB602.pdf. In short, like all of the State’s purported empirical evidence, the Regnerus and Moore studies prove that marriage is good for kids, and that two parents are better than one. But neither of these claims have anything to do with the sexual orientation and gender of parents, and thus, have nothing to do with the Marriage Discrimination Laws. The Court should note that, while there are studies showing that divorce and/or single parenting are sub-optimal for child development outcomes, see Patterson Decl., ¶¶ 20-21, individuals still have the right to divorce, or to have children on their own. The Constitution protects these private decisions, even though there is evidence that the exercise of these decisions may adversely affect children. As such, childrearing, while indisputably important to society, is not determinative of whether the government can intrude on an individual’s constitutionally-protected and fundamental rights, such as the right to marriage.
20

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childrearing, or otherwise. Utah’s exclusion of same-sex couples from marriage in fact undermines the interests of parenting and childrearing. In 2008, there were approximately 2,900 children under the age of 18 being raised in same-sex couple homes in Utah. Patterson Decl., ¶ 40. The inability of the parents of these children to marry excludes these families from the benefits of marriage. Utah’s laws in fact result in these households being less stable for these children, whereas allowing same-sex couples to marry would promote the household stability in which children flourish. See Goodridge v. Dep’t Pub. Health, 79 N.E.2d 941, 963 (Mass. 2003) (“Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying [the advantages provided by marriage].”); Baker v. State, 744 A.2d 864, 882 (Vt. 1999) (“If anything, the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against.”); see also Patterson Decl., ¶ 40. Prior to the Supreme Court holding DOMA unconstitutional in Windsor, the United States District Court for the District of Connecticut criticized the Act’s definition of marriage for its effects on children: DOMA’s denial of federal marital benefits to same -sex married couples in fact leads to a significant unintended and untoward consequence by limiting the resources, protections and benefits available to children of same-sex parents. . . . DOMA ham-fistedly deprives these adopted children of governmental services and benefits desirable, if not necessary, to their physical and emotional wellbeing and development creating an increased potential that they will become a burden on society.

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DOMA . . . inflicts significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections . . . [including the right] to take leave to care for a spouse with a serious health condition. . . . [The denial of this benefit, in turn, puts the household and its children] under greater stress in attempting to cope with the serious illness of a parent. Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 338 (D. Conn. 2012). Subsequently, in Windsor, the Supreme Court also acknowledged that the marriage inequality promoted by DOMA was injurious to children, including that DOMA “humiliates tens of thousands of children now being raised by same-sex couples [and] makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, 133 S. Ct. at 2694. The children in Utah being raised by same-sex couples are similarly injured by Utah’s laws. Utah’s Marriage Discrimination Laws do not increase the likelihood that children will be raised by their married biological parents, but instead harm and injure children that do not fit the State Defendants’ mold. An interest in the development and parenting of children cannot rationally justify marriage inequality in Utah, including because the only effect the Marriage Discrimination Laws have on children is to stigmatize and humiliate the children of same-sex couples, while at the same time denying them the protections afforded by marriage to children of opposite-sex couples. C. Preserving Tradition, and Avoiding the Consequences of Change, Are Not In and of Themselves Legitimate Goals of the State

The State Defendants assert that Utah has an interest in preserving “the ancient and ongoing tradition of marriage between a man and a woman.” State Defendants’

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Motion at 38. They further assert that the consequences of marriage equality are unknown, and that Utah is therefore justified in “proceeding with caution.” Id. However, such arguments are circular: They claim that the State may continue to discriminate against same-sex couples because they have always done so. But these are not legitimate interests of the State sufficient to justify Utah’s unconstitutional laws -- even under a deferential standard of review. Again, the Supreme Court rejected these tradition-based arguments in Windsor.21 Accordingly, this Court must also reject these purported rationales. 1. Preserving “Traditional” Marriage, Solely for Tradition’s Sake, Is Not a Legitimate Goal of the State

The State Defendants contend that Utah has an interest in preserving a “traditional” definition of marriage.22 However, deference to tradition, by itself, is not a legitimate state interest sufficient to survive rational basis review. See Heller v. Doe, 509 U.S. 312, 326 (1993) (“Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.”); Williams v. Illinois, 399 U.S. 235, 239 (1970)

The Supreme Court in Windsor recognized the long history and tradition of man/woman marriage. See Windsor, 133 S. Ct. at 2689 (“[U]ntil recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage, between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.”). But this history and tradition was not enough to justify DOMA, and the same analysis applies here. As discussed, supra, many tenets of “traditional” marriage have already been rejected by our society and the courts. Accordingly, the notion that marriage is static, and that there is a “traditional” form of marriage to preserve, fails in the first instance.
22

21

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(“[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack”). Nor can tradition alone validate the notion – even if held by a majority of the citizens – that same-sex relationships are of lower quality, or even immoral.23 See Lawrence v. Texas, 539 U.S. 558, 577 (2003) (“[T]hat the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . .”). “Rather, the state must have an interest apart from the fact of the tradition itself.” Perry, 704 F. Supp. 2d at 998. The invocation of tradition as a basis for legislation should invoke the suspicion of this Court. Throughout our nation’s history, tradition has been used to justify what we now recognize as invidious discrimination. See, e.g., Plessy v. Ferguson, 163 U.S. 537, 550 (1896) (the legislature is “at liberty to act with reference to the established usages, customs and traditions of the people”); Muller v. Oregon, 208 U.S. 412, 421 (1908) (“[H]istory discloses the fact that woman has always been dependent upon man.”). In the context of marriage, if deference to tradition was a legitimate goal, then laws restricting marriage based on race would have survived. But the Supreme Court understood that even the long duration of an unconstitutional law does not justify its perpetuation. See Loving v. Virginia, 388 U.S. 1, 7 & 12 (1967) (holding Virginia’s antimiscegenation statutes unconstitutional under the Fourteenth Amendment, despite the

This is particularly true when all evidence concludes that same-sex relationships are in fact not inferior to opposite-sex relationships. See Statement of Additional Undisputed Material Facts, supra.

23

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fact that “[p]enalties for miscegenation . . . [were] common in Virginia since the colonial period”); see also Lawrence, 529 U.S. at 577-78 (“[N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack.”) (internal uotation omitted). In sum, as our understanding of equality evolves, the illegitimacy of laws that might once have seemed too entrenched in custom and tradition to question become apparent. See, e.g., Windsor, 133 S. Ct. at 2692-93 (New York’s recognition of samesex marriage “reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of e uality.”). Accordingly, tradition by itself cannot form a legitimate basis for Utah’s Marriage Discrimination Laws, and the Court should reject any State interest in preserving “traditional” marriage, for its own sake, as a matter of law. 2. Utah’s Marriage Discrimination Laws Are Not Rationally Related to the Purported Interest in Proceeding with Caution When Implementing Social Changes

The State Defendants contend that Utah has a legitimate interest in avoiding the unknown consequences of allowing gay and lesbian individuals equal access to marriage. However, the belief that same-sex marriage will result in a corrosion of marital norms, and ultimate societal devaluation of marriage as an institution, is not factually supported, and appears to be based solely on the fears of same-sex marriage opponents, which are in turn based upon speculation and their unsubstantiated private views of the inferiority of the committed relationships of gay and lesbian individuals. This is not sufficient to survive scrutiny even at the lowest levels. See City of Cleburne

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v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (“mere negative attitudes or fear, unsubstantiated by factors which are properly cognizable” are not permissible bases for differential treatment). In any case, the empirical evidence is that the inclusion of same-sex couples in the institution of marriage does not amount to the “sweeping social change” that its opponents fear. Perry, 704 F. Supp. 2d at 999. As already discussed, supra, where states and other countries have legalized same-sex marriage, the evidence shows that there is at least a neutral, if not positive, effect on the institution of marriage. See Peplau Decl., ¶¶ 15 & 56-63; Supp. Peplau Decl., ¶¶ 4-7; Badgett Decl., ¶¶ 69-77 (discussing the empirical data of states and countries allowing same-sex marriage); 15 States’ Brief at 22-31 (concluding that, based on the experience of states allowing same-sex marriage, “Speculation About the Erosion of the Institution of Marriage Is Demonstrably False”). Further, as the U.S. Court of Appeals for the Ninth Circuit concluded in Perry, “there [can] be no rational connection between the asserted purpose of ‘proceeding with caution’ and the enactment of an absolute ban, unlimited in time, on same -sex marriage in the state constitution.” Perry v. Brown, 671 F.3d 1052, 1090 (2012) (emphasis in original). While this decision has now been vacated on jurisdictional grounds, see Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), the logic of the Ninth Circuit is no less

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compelling here, where Utah has enacted such an absolute ban in its state constitution, thereby belying any purported interest in “proceeding with caution.”24 In sum, fear of the unknown alone has never been a sufficient basis to burden a class of citizens, and is not a proper goal of the State under rational basis review. Accordingly, Utah’s Marriage Discrimination Laws cannot be justified, as a matter of law, by any purported interest by the State in proceeding with caution, particularly when nothing but fear, prejudice, and speculation fuels that caution. D. Utah’s Marriage Discrimination Laws Damage the State and Same-Sex Couples

Not only is there no rational relationship between the Marriage Discrimination Laws and any purported interest by the State, but it is undisputed that the ban on samesex marriage has a significant, negative impact on the State, as well as Utah citizens in same-sex committed relationships. The negative economic impact on Utah comes in a number of ways from the ban on same-sex marriage. The State and its local subdivisions lose significant tax and fee revenue resulting from weddings of same-sex couples. Badgett Decl., ¶ 10. In addition, the decrease in the number of couples entering legally-recognized marriages as the The State Defendants contend that this Court should be wary to uphold the constitutional rights of Plaintiffs, and the gay and lesbian citizens of Utah, because doing so may be “irreversible.” However, Plaintiffs are not a science experiment. This is not a trial run, and this Court should reject any suggestion that these constitutional rights, once restored to Plaintiffs, should or could be taken away at some time in the future. Indeed, the lack of merit of this argument is demonstrated by the fact that in every case where a court has struck down as unconstitutional laws invidiously discriminating against a class of persons, such an argument could have (and maybe was) made, such as in Loving.
24

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result of the Marriage Discrimination Laws imposes State costs for additional spending on compensation care for uninsured people and the loss of productivity generated by unequal treatment of same-sex couples in the workplace. Id. The State is also harmed by being a comparatively less attractive location for highly qualified workers and business as a result of Utah’s discriminatory laws. Id., ¶ 15. In addition, the Marriage Discrimination Laws impose substantial economic harms on same-sex couples residing in Utah and their children in a number of ways. The Marriage Discrimination Laws eliminate, for same-sex couples, the economic efficiencies and cost savings associated with entering a legally recognized relationship, as compared to being single. Id., ¶ 11. In addition, the Marriage Discrimination Laws deprive same-sex couples and their families of significant direct and indirect economic benefits from the State and federal government that flow as a natural consequence from the status of being legally married. Id. Finally, the harms of Utah’s same-sex ban are not only financial. It is undisputed that marriage provides stability and a social fabric that benefits society as a whole. The individuals and children being raised in same-sex households are being denied those benefits. Further, marriage increases the psychological and physical health of those individuals in marriage. Peplau Decl., ¶¶ 38-40. In sum, the long-standing policy of our nation is that marriage is a public good. Accordingly, excluding couples from the institution runs contrary to our social policy.

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VIII.

THE STATE OF UTAH MAY NOT CATEGORICALLY DENY RECOGNITION OF SAME-SEX MARRIAGES PERFORMED IN OTHER STATES

Utah’s refusal to recognize the marriages of Plaintiffs Archer and Call, who married in Iowa, violates due process and equal protection, for all of the reasons set forth by Plaintiffs’ in their pending motion for summary judgment, including under the Supreme Court’s recent analysis in United States v. Windsor, 133 S. Ct. 2675 (2013). See Plaintiffs’ Motion at 37-39. Contrary to the State Defendants’ arguments, federal law does not authorize the State of Utah to discriminate, without justification, against same-sex couples living in Utah that have legally married in other states, because the Constitution forbids such unequal treatment and denial of the right to marriage. Thus, Plaintiffs agree with the State Defendants that Section 2 of DOMA is “wholly unremarkable,” but for the reason that no act of Congress may override the protections guaranteed by the Constitution. See U.S. Const. Amend. V; see also, e.g., Windsor, 133 S. Ct. 2675. Accordingly, Section 2 of DOMA is irrelevant to the Court’s analysis of whether Utah’s policy of non-recognition violates the Fourteenth Amendment. In considering the interplay of the rights of Plaintiffs Archer and Call, the power of the State of Utah, the authority of sister states, and the principles protected by the federal Constitution, it is important to bear in mind the purposes of federalism. The Supreme Court has emphasized that federalism does not just safeguard the various interests of the states and the federal government. Properly understood, “[f]ederalism [also] secures the freedom of the individual.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011). “By denying any one government complete jurisdiction over all the

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concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Id. Utah’s broad authority over the law of domestic relations is subject to constitutional guarantees. See Windsor 133 S. Ct. at 2691 (“[s]tate laws . . . regulating marriage, of course, must respect the constitutional rights of persons”). Accordingly, the State of Utah does not have absolute and exclusive jurisdiction over Plaintiffs Archer’s and Call’s marital status, which a sister state validly conferred and which the Constitution protects. In Windsor, the Supreme Court held that same-sex spouses who have entered into valid marriages have a constitutionally protected interest in their marital status and that the categorical refusal of the federal government to recognize the valid marriages of same-sex couples was “unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.” Windsor, 133 S. Ct. at 2695. Like Section 3 of DOMA, which the Supreme Court struck down in Windsor, Utah’s Marriage Discrimination Laws treat the valid marriages of same-sex couples as if they did not exist, denying those marriages recognition for all purposes under state law, just as DOMA did under federal law. As with DOMA, the injury that Utah’s laws inflict on legally married same-sex couples “is a deprivation of an essential part of the liberty protected by the [Constitution’s due process guarantee].” Id. at 2692. Utah, almost without exception, respects the marriages of couples who married in other states, but it categorically refuses to recognize the otherwise valid marriages of same-sex couples for any purpose under state law. Utah’s refusal to recognize Plaintiffs’ marriages constitutes an extraordinary disruption of their lives and severely

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infringes upon their protected interests in the comprehensive set of protections and responsibilities afforded by marriage, which cannot be fully replicated by other means. The resulting negative impact on Plaintiffs Archer’s and Call’s stability, security, and dignity is as severe as that caused by federal non-recognition in Windsor, exposing their families to an alarming array of legal vulnerabilities and harms, “from the mundane to the profound.” Id. at 2694. As with DOMA, because the purpose and effect of Utah’s discriminatory marriage laws are precisely to achieve that unequal treatment by excluding “persons who are in a lawful same-sex marriage” from the same protections given to other married persons, those laws violate the Constitution’s due process guarantee. Id. Utah’s refusal to respect Plaintiffs’ existing marriages also denies them e ual protection. Like DOMA, Utah law facially targets the class of married same-sex couples. Utah has thus created two categories of couples who married out of state: opposite-sex couples married out of state, whose marriages are fully recognized in Utah, and same-sex couples married out of state, whose marriages are categorically denied recognition. In Windsor, the Supreme Court held that DOMA’s targeting of that class re uired “careful consideration” under both due process and e ual protection review for two reasons: first, because the statute departed from the federal government’s longstanding practice of deferring to the states to determine marital status; and second, because it did so in order to subject a particular group of married couples to unequal treatment. Id. at 2694. The same equal protection analysis applies here. Utah’s refusal to respect plaintiffs’ valid out-of-state marriage constitutes

74

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“discrimination[] of an unusual character.” Id. at 2692-93. And like DOMA, Utah’s laws prohibiting recognition of Plaintiffs’ marriage were not enacted for any reason independent of or unrelated to excluding married same-sex couples from recognition, but to achieve that very result. Such laws fail the requirement of equal protection. Id. In our federal system, in which interstate travel is ordinary, expected, and constitutionally protected, a state’s power to marry couples within its borders is enhanced if the state can be confident that the state’s conferral of marital status on couples will be respected by other states. A state’s categorical exclusion of an entire class of marriages from other states without adequate justification therefore is an affront to our nation’s federalism of a sort that has been rare in our constitutional tradition. IX. THE STATE DEFENDANTS DO NOT DENY THAT INJUNCTIVE RELIEF IS AVAILABLE TO PLAINTIFFS UNDER 42 U.S.C. § 1983, AND A DETERMINATION AS TO WHETHER PLAINTIFFS WOULD BE ENTITLED TO ANY MONETARY AMOUNT IS PREMATURE

Foremost, Plaintiffs seek to enjoin the State Defendants from enforcing Utah’s Marriage Discrimination Laws, so that they may be married, or have the State recognize their out-of-state marriage. Under the Ex Parte Young exception to a state’s sovereign immunity, this type of relief is clearly available to Plaintiffs under their § 1983 claim, and the State Defendants do not deny that this Court may dispense injunctive relief in this case (other than to argue that such relief is not merited). See Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 495 (10th Cir. 1998) (“Ex Parte Young recognizes an exception to Eleventh Amendment immunity under which a state officer may be enjoined from ‘taking any steps towards the enforcement of an unconstitutional enactment, to the injury of complainant.’”).

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However, the State Defendants argue in their motion that Plaintiffs are not entitled to any monetary relief if they prevail, including attorneys’ fees. While Plaintiffs reserve the right to more fully respond to these arguments at the appropriate juncture, this issue is premature. Plaintiffs therefore respectfully request that this Court defer briefing and ruling on the narrow issue of whether Plaintiffs may be entitled to attorneys’ fees under 42 U.S.C. § 1988 until the issue becomes germane. CONCLUSION For all of the reasons discussed in this opposition, and in Plaintiffs’ pending motion for summary judgment, the State Defendants’ motion should be denied. DATED this 22nd day of November, 2013. MAGLEBY & GREENWOOD, P.C.

Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that I am employed by the law firm of MAGLEBY & GREENWOOD, P.C., 170 South Main Street, Suite 850, Salt Lake City, Utah 84101, and that pursuant to Rule 5(b), Federal Rules of Civil Procedure, a true and correct copy of the foregoing PLAINTIFFS’ OPPOSITION TO MOTION OF THE GOVERNOR AND ATTORNEY GENERAL FOR SUMMARY JUDGMENT was delivered to the following this 22nd day of November, 2013, by: [ ] [X] [X] [X] Hand Delivery Depositing the same in the U.S. Mail, postage prepaid CM/ECF System Electronic Mail Ralph Chamness rchamness@slco.org Darcy Goddard dgoddard@slco.org SALT LAKE COUNTY DISTRICT ATTORNEYS 2001 South State Street, S3500 Salt Lake City, Utah 84190-1210

Philip S. Lott phillott@utah.gov Stanford E. Purser spurser@utah.gov John E. Swallow UTAH ATTORNEY GENERAL 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, Utah84114-0856 Attorneys for Defendants Gary R. Herbert and John Swallow

Attorneys for Defendant Sherrie Swensen

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Peggy A. Tomsic (3879) tomsic@mgpclaw.com James E. Magleby (7247) magleby@mgpclaw.com Jennifer Fraser Parrish (11207) parrish@mgpclaw.com MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101-3605 Telephone: 801.359.9000 Facsimile: 801.359.9011 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually, KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, Plaintiffs, v. GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah; and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendants. APPENDIX TO PLAINTIFFS’ OPPOSITION TO MOTION OF THE GOVERNOR AND ATTORNEY GENERAL FOR SUMMARY JUDGMENT

Case No. 2:13-cv-00217-RJS Honorable Robert J. Shelby

Case 2:13-cv-00217-RJS Document 85-1 Filed 11/22/13 Page 2 of 4

DECLARATIONS Exhibit 1 Page 1 26 43 48

Declaration of M.V. Lee Badgett, Ph.D. Exhibit A Exhibit B Curriculum Vitae of M.V. Lee Badgett, Ph.D. Bibliography

2

Declaration of George Chauncey, Ph.D. Source: Docket No. 86-2, pp. 132-183, Beverly Sevcik, et al. v. Brian Sandoval, et al., No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada Exhibit A Exhibit B Curriculum Vitae of George Chauncey, Ph.D. Bibliography

87 96 101

3

Declaration of Nancy F. Cott, Ph.D. Source: Docket No. 86-2, pp. 3-24, Beverly Sevcik, et al. v. Brian Sandoval, et al., No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada Exhibit A Exhibit B Curriculum Vitae of Nancy F. Cott, Ph.D. Bibliography

125 137 144 162

4

Declaration of Charlotte J. Patterson, Ph.D. Exhibit A Curriculum Vitae of Charlotte J. Patterson, Ph.D. Bibliography

Exhibit B 5

189 198

Declaration of Letitia Anne Peplau, Ph.D. Source: Docket No. 86-2, pp. 45-91, Beverly Sevcik, et al. v. Brian Sandoval, et al., No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada Exhibit A Exhibit B Curriculum Vitae of Letitia Anne Peplau, Ph.D. Bibliography

221 238

2

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Exhibit 6

Supplemental Declaration of Letitia Anne Peplau, Ph.D. Source: Docket No. 98-2, Beverly Sevcik, et al. v. Brian Sandoval, et al., No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada Declaration of Gary M. Segura, Ph.D. Source: Docket No. 86-3, pp. 3-56, Beverly Sevcik, et al. v. Brian Sandoval, et al., No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada Exhibit A Exhibit B Curriculum Vitae of Gary M. Segura, Ph.D. Bibliography

Page 246

7

251

283 303

MEMORANDA FROM OTHER LEGAL PROCEEDINGS Exhibit 8 Page 306

Brief of the United States on the Merits Question Source: American Bar Association’s Online Publication of the Briefs Filed in United States v. Windsor, No. 12-307 in the United States Supreme Court Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives Source: American Bar Association’s Online Publication of the Briefs Filed in United States v. Windsor, No. 12-307 in the United States Supreme Court Brief of the American Psychological Association, the American Academy of Pediatrics, the American Medical Association, the American Psychiatric Association, the American Psychoanalytic Association, the California Medical Association, the National Association of Social Workers and Its New York City and State Chapters, and the New York State Psychological Association as Amici Curiae on the Merits in Support of Affirmance Source: American Bar Association’s Online Publication of the Briefs Filed in United States v. Windsor, No. 12-307 in the United States Supreme Court

9

374

10

451

3

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Exhibit 11

Brief of Amicus Curiae American Sociological Association in Support of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor Source: American Bar Association’s Online Publication of the Briefs Filed in United States v. Windsor, No. 12-307 in the United States Supreme Court Brief of Constitutional Law Scholars Bruce Ackerman, Ash Bhagwat, Lee Bollinger, Erwin Chemerinsky, Michael C. Dorf, Lee Epstein, Larry Friedman, John C. Jeffries, Jr., Lawrence Lessig, William Marshall, Frank Michelman, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David Strauss, Laurence Tribe, and William Van Alstyne as Amici Curiae Addressing the Merits and Supporting Affirmance Source: American Bar Association’s Online Publication of the Briefs Filed in United States v. Windsor, No. 12-307 in the United States Supreme Court Brief of Massachusetts, California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont, and Washington as Amici Curiae in Support of Appellants Source: Docket No. 24, Beverly Sevcik, et al. v. Brian Sandoval, et al., No. 12-17668 in the United States Court of Appeals for the Ninth Circuit

Page 512

12

556

13

601

OTHER Exhibit 14 Page 644

February 24, 2004 Transcript, 2004 General Legislative Session, Utah House of Representatives (Excerpts) Source: Source audio from website of Utah State Legislature at http://le.utah.gov/asp/audio/index.asp?Sess=2004GS&Day=0&Bill= HJR025&House=H

4

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Exhibit 1

App. 000001 - Pls.' SJ Opp'n, Kitchen v. Herbert

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Peggy A. Tomsic (3879) tomsic@mgpclaw.com James E. Magleby (7247) magleby@mgpclaw.com Jennifer Fraser Parrish (11207) parrish@mgpclaw.com MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101-3605 Telephone: 801.359.9000 Facsimile: 801.359.9011 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually, KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, Plaintiffs, v. GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah; and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendants. DECLARATION OF M.V. LEE BADGETT, Ph.D.

Case No. 2:13-cv-00217-RJS Honorable Robert J. Shelby

App. 000002 - Pls.' SJ Opp'n, Kitchen v. Herbert

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I, M.V. Lee Badgett, Ph.D., hereby declare and state as follows: PRELIMINARY STATEMENT 1. I am a Professor of Economics at the University of Massachusetts Amherst, where

I have taught since 1997. I also serve as the University’s Director of the Center for Public Policy and Administration. I have been retained by counsel for plaintiffs in Kitchen v. Herbert to prepare this expert report in connection with the above-referenced litigation. I have actual knowledge of the matters stated in this expert report and could and would so testify if called as a witness. 2. I am currently a Williams Distinguished Scholar at the Williams Institute for

Sexual Orientation Law and Public Policy at the UCLA School of Law, where I served as research director from 2006 to 2013. From 2005 to 2007, I was a visiting professor at UCLA School of Law. Prior to those positions, from 1990 to 1997 I was an assistant professor of Public Affairs at the School of Public Affairs, University of Maryland, College Park. I have conducted research at the Amsterdam School for Social Science Research, University of Amsterdam, and conducted research and taught at the Women’s Studies and Lesbian and Gay Studies programs of Yale University. I received my A.B. in Economics from the University of Chicago in 1982 and my Ph.D. in Economics from the University of California, Berkeley, in 1990. 3. The primary focus of my research and teaching is in the fields of Economics,

including Microeconomics, Labor Economics, and Sexual Orientation and Economics; and Sexual Orientation and Public Policy, including sexual orientation discrimination, family structures and family policy, same-sex partner recognition in the US and Europe, domestic partner health care and pension benefits, and the health insurance status of lesbians and gay men. 4. I am the author of two books and the co-editor of a third on sexual orientation

economics and public policy: Money, Myths and Change: The Economic Lives of Lesbians and Gay Men (2001); Sexual Orientation Discrimination: An International Perspective (2007); and

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When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage (2009). I have also authored numerous published articles and book chapters, as set forth in my curriculum vitae. 5. My background, experience, and list of publications from the last 10 years are

summarized in my curriculum vitae, which is attached as Exhibit A to this affidavit. 6. In the past four years, I have testified as an expert through declaration, trial, or

deposition in Bassett v. Snyder, Case No. 2:12-cv-10038 (E.D. Mich.); Perry v. Schwarzenegger, Case No. 09-CV-2292 VRW (N.D. Cal.); Glossip v. Missouri Dep’t of Transp. and Highway Patrol Employees’ Ret. Sys., No. 10-CC00434 (Mo. Cir. Ct., Cole County); Diaz v. Brewer, Case No. CV-09-2402-PHX-JWS (previously captioned Collins v. Brewer) (D. Ariz.); Sevcik v. Sandoval, Case No. 2:12-CV-00578—RCJ-PAL (D. Nev.); Darby v. Orr, Lazaro v. Orr, Nos. 12 CH 019718 & 12 CH 019719 (Circuit Ct., Cook County); and Garden State Equality et al. vs. Dow. 7. In preparing this affidavit, I have reviewed the materials listed in the attached

Bibliography (Exhibit B). I may rely on those documents, in addition to the documents specifically cited as supportive examples in particular sections of this affidavit, as additional support for my opinions. I have also relied on my years of experience in this field, as set out in my curriculum vitae (Exhibit A), and on the materials listed therein. 8. I am being compensated an hourly rate for actual time devoted, at the rate of

$150.00 per hour for testimony I may be required to give in person in this matter, and any out-ofpocket expenses that I would incur if required to give such testimony. My compensation does not depend on the outcome of this litigation, the opinions I express, or the testimony I provide. I. SUMMARY OF EXPERT OPINIONS 9. I have been asked for my expert opinion concerning the economic impact of

Utah’s exclusion of same-sex couples from marriage on Utah and its cities and counties and the 2 App. 000004 - Pls.' SJ Opp'n, Kitchen v. Herbert

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economic impact of the exclusion on same-sex couples and their children. This expert report also includes certain demographic information about same-sex couples and their children, which is based on my prior research and other scholarly research. The report also documents evidence that no harm to the institution of marriage would result from allowing same-sex couples to marry in Utah. 10. The marriage exclusion imposes substantial costs on Utah and its counties and

cities. First, the state and local subdivisions lose significant tax and fee revenue that, but for the marriage exclusion, would have accrued as a result of weddings of same-sex couples. Second, denial of marriage imposes state costs for (1) additional spending on uncompensated care for uninsured people, and (2) the loss of productivity generated by unequal treatment of same-sex couples in the workplace. 11. The marriage exclusion imposes substantial economic harms on same-sex couples

residing in Utah and their children in at least two ways. First, there are many same-sex couples who would marry in Utah but cannot; for these couples the marriage exclusion eliminates the economic efficiencies and cost savings associated with entering a legally recognized relationship, as compared to remaining single. Second, for same-sex couples who have married in another state or in the District of Columbia, the failure of Utah to recognize their marriages deprives those same-sex couples and their families of significant direct and indirect economic benefits provided by the State of Utah. II. BASIS AND REASONS FOR OPINIONS A. 12. Demographics of Same-Sex Couples and Their Families For purposes of the demographic information in this report, I use the term “same-

sex couple” to mean two people of the same sex who live together and indicated on a Bureau of the Census survey that they are either “unmarried partners” or spouses. Because the U.S. Census Bureau has changed some of its data collection practices, there are two different sources of 3 App. 000005 - Pls.' SJ Opp'n, Kitchen v. Herbert

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information about same-sex couples in Utah used in this report. The first source is the American Community Survey (ACS), which is a survey of about 2 million U.S. households per year. The results here come from the Utah samples pooled for 2009-2011. The second source is the 2010 Census, which consisted of a short questionnaire with minimal demographic data and no long form for any households. In its analysis of the 2010 Census data, the Census Bureau made corrections to some of the questions used to generate the count of same-sex unmarried partner couples, and in this report I use the counts that are labeled by the Census Bureau as their “preferred estimates” of same-sex couples for the most up-to-date count of same-sex couples in Utah (Lofquist et al., 2012). 13. The Census Bureau counted 3,909 same-sex couples living together in Utah in

2010 (U.S. Census Bureau, “Detailed Tables,” 2011, App Tab 6b). Same-sex couples comprised at least 0.4% of all households in Utah (Lofquist, et al., 2012). Approximately 20% of these same-sex couples in Utah are raising children under the age of 18 (U.S. Census Bureau, “Supplemental Tables,” 2011). 14. Additional findings about same-sex couples living in Utah are available from the

2011 American Community Survey. People in same-sex couples are active contributors to Utah’s economy, culture, and future: 90% are employed and 8% are veterans, compared with 67% of people in married different-sex couples who are employed and 19% of whom are veterans (not statistically significantly different from the percentage of veterans among same-sex couples). Approximately 2% of adopted children in Utah live with a lesbian or gay parent (Gates, Badgett, Macomber, and Chambers, 2007). B. The Marriage Exclusion Imposes Costs on State and Local Governments 15. The State of Utah and various local counties and cities have been suffering and

will continue to suffer increased costs as a direct result of the marriage exclusion. I estimate that over the next three years the State’s economy will lose at least $15.5 million in business revenue 4 App. 000006 - Pls.' SJ Opp'n, Kitchen v. Herbert

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and $1 million in tax revenue that would have accrued as a result of weddings by same-sex couples. The State’s economy will also suffer as Utah remains a comparatively less attractive location for highly qualified workers and businesses. (i) Lost wedding-related business and tax revenue for resident and non-resident

couple marriages 16. To assess the amount of wedding-related tax revenue lost by the State of Utah, I

first estimated the number of same-sex couples who would marry in Utah but cannot as a result of the marriage exclusion. I then multiplied the number of couples by an estimate of average spending per wedding. 17. First, I use figures from Massachusetts, in which 51% of in-state same-sex

couples married from 2004 to 2007 (three full years). Based on those figures, I predict that approximately one-half of Utah’s same-sex couples would marry in the first three years of having the option to do so. Half of the 3,909 same-sex couples in Utah in the 2010 Census would be 1,955 couples. I assume that all of the 1,955 couples will marry. 18. Based on wedding industry statistics, I conservatively predict that in-state couples

would spend 25% of the $24,732 reportedly spent on the average wedding in Utah, or $6,183 per wedding (The Wedding Report, 2012). This assumption is consistent with the experience in Massachusetts, in which the average wedding spending by same-sex couples was approximately $7,400 per wedding (Goldberg, Steinberger, and Badgett, 2009). The likely new direct wedding spending, then, would be $12.1 million. 19. In addition to spending by the couples who marry, those couples are likely to

invite guests who live in other states and would therefore be injecting new spending into the state’s economy. In Massachusetts, same-sex couples reported 16 out-of-state guests per wedding. If same-sex couples in Utah were to do the same and their guests spent only one day in Utah for the wedding, state tourism research suggests that each of those guests would spend a 5 App. 000007 - Pls.' SJ Opp'n, Kitchen v. Herbert

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total of $110 on food, lodging, and other expenses. Using the number of weddings above suggests that spending by out-of-state guests would generate $3.4 million. 20. The total lost spending by the Utah couples and out-of-state guests would thus be

$15.5 million over three years. That lost spending would generate $1 million in state and local sales tax revenue, given the state’s sales and hotel tax rates (Tax Foundation, 2013). 21. After the pent-up demand for marriage is seen over the first few years, same-sex

couples in Utah and elsewhere would continue to generate wedding-related spending, tax, and fee revenues for businesses and state and local governments, although at a lower level. 22. It is reasonable to expect an added boost to Utah’s economy from out-of-state

couples who would travel from other states to marry in Utah. For purposes of making a conservative estimate, however, I leave out that amount. It has become increasingly difficult to predict the number of same-sex couples likely to travel to Utah to marry, because (1) the states already allowing same-sex couples to marry will continue to absorb the pent-up demand for marriage until Utah allows same-sex couples to marry and (2) even when Utah allows same-sex couples to marry, the state would be competing with other states for the remaining unmarried same-sex couples. 23. Yet the economic boost due to out-of-state couples marrying in Utah could be

substantial. Since only thirteen states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) and the District of Columbia allow same-sex couples to marry as of the date of this report, same-sex couples who wish to marry in the other states must travel to do so. State marriage license statistics in Iowa and Connecticut show that about 60% of licenses issued to same-sex couples have been to out-of-state same-sex couples (Badgett and Herman, 2011, p. 10). Same-sex couples from nearby states form the largest groups of out-of-state marriage licenses issued in those states. Demand for marriage by same-sex couples from other states is likely to

6 App. 000008 - Pls.' SJ Opp'n, Kitchen v. Herbert

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increase now that the federal government will recognize the marriages of same-sex couples, regardless of place of domicile, for federal income taxation, estate taxes, the Family and Medical Leave Act, employment benefits governed by ERISA, federal employee benefits, immigration rights, and perhaps other federal benefits. 24. It is also possible that some of the same-sex couples living in Utah have already

married in one of the thirteen states where they could have done so or in the District of Columbia. The state might continue to lose the potential wedding spending from in-state couples who travel now to other states to marry since they cannot marry in Utah (but return to live in Utah). That loss could be at least partially balanced out by spending from out-of-state couples same-sex couple traveling from neighboring states if Utah were to allow same-sex couples to marry. Therefore, I make no adjustments to the estimates of new weddings for already-married same-sex couples. (ii) 25. General productivity loss As discussed further below, the marriage exclusion is likely to result in additional

workplace costs to individual productivity as a result of lesbian, gay, and bisexual employees being denied the same rights as other employees who are married or could marry (see paragraphs 51-53, infra, describing costs of workplace discrimination for same-sex couples). These individual productivity losses also inflict harms upon the State. Institutionalized conditions of inequality, such as state denial of the right to marry and private denial of employment benefits associated with marriage, will likely reduce commitment to working in Utah or to working for companies that have differential treatment of married and unmarried couples. These productivity losses will reduce business profits and individual incomes, leading to lower income and business tax revenue. (iii) Higher costs for health care of uninsured same-sex partners

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26.

Because many employers do not offer health care benefits to domestic partners,

the number of uninsured Utahns is higher than it would be if same-sex couples could marry. This situation results in increased state expenditures on uncompensated care (Hadley, et al., 2008). Uninsured workers increase the financial burden on State and local government by requiring increased expenditures on various programs, including Utah’s Medicaid program and other stateand locally-funded programs to reimburse providers for uncompensated care. They also increase the financial burden on local governments that provide health care through county hospitals that are not fully reimbursed for the services they provide to some uninsured patients. (iv) 27. Creative class loss As a result of the marriage exclusion, Utah is likely to find it more difficult to

attract and retain some highly qualified members of the labor force, particularly those in the “creative class” occupations that may be central to further economic growth in high technology industries (Florida and Gates, 2001). By refusing to marry same-sex couples, Utah is at a disadvantage in attracting highly skilled workers. In particular, heterosexual and nonheterosexual members of the “creative class,” or the highly-educated, relatively young workers in creative occupations such as IT workers, engineers, scientists, teachers, artists/entertainers, banking/finance workers, managers, and medical professionals, might be deterred from moving to Utah. 28. Two sources of data suggest that marriage equality enhanced Massachusetts’

ability to attract and retain workers in the creative class. First, a study of Census data found that migration patterns shifted in Massachusetts before and after same-sex couples could marry (Gates, 2009). In the three years before same-sex couples could marry, Massachusetts lost 603 people in same-sex couples. In the three years after same-sex couples could marry, the state saw a net gain of 119 people in same-sex couples. Net migration to Massachusetts by people in same-sex couples who are in creative-class occupations accounted for the migration shift

8 App. 000010 - Pls.' SJ Opp'n, Kitchen v. Herbert

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between the two periods. The timing suggests that the right to marry attracted same-sex couples among the creative class. 29. Second, a 2009 survey of 559 individual members of same-sex married couples

living in Massachusetts in May 2009 found that 8% of those couples had moved to the state since the right to marriage equality was affirmed there (Gates, 2009). More than half (51%) of those couples who had recently moved to Massachusetts reported that their decision to move to Massachusetts was influenced by marriage equality or the state’s lesbian, gay, bisexual, and transgender (LGBT) rights climate. 30. These findings suggest that as other states allow same-sex couples to marry, Utah

will find itself increasingly disadvantaged in competing for the creative-class and other highly skilled members of the nation’s workforce. (v) 31. Net magnitude of cost The economic harm to the State and its economy discussed above are substantial.

First, the State and its subdivisions will lose approximately $1 million in lost tax revenue over three years, due to the inability of same-sex couples to marry. Second, the State will lose approximately $15.5 million in wedding-related business spending over three years. Third, the State may suffer further significant losses due to general productivity loss, higher costs for health care of uninsured partners, and creative class loss. C. Utah’s Limits on the Right to Marry Impose Substantial Costs on a Significant Number of Same-Sex Couples And Their Families 32. The marriage exclusion deprives same-sex couples and their children of

significant economic benefits associated with marriage. Some of these benefits, such as the ability to file joint state tax returns or the right to inherit from an intestate spouse, are provided at

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the state level. Other benefits come from the federal government, such as the ability to file a joint federal tax return and exemptions from federal estate taxes. 33. In this section, I address the costs imposed on two groups of same-sex couples:(1)

same-sex couples who wish to marry in Utah and have not married elsewhere (“unmarried couples”) and (2) same-sex couples who have married in another state (“couples married in another state”) and therefore receive at least some federal, but not state, rights and benefits of marriage. 34. Subsection (i) outlines the costs imposed by Utah’s marriage law on both same-

sex unmarried couples and same-sex couples married in another state: (a) the loss of valuable employment-related benefits, such as health insurance coverage; (b) increased transaction costs; (c) reduced economic efficiency of the family; and (d) costs of workplace discrimination. 35. Subsection (ii) briefly outlines the federal benefits that unmarried same-sex

couples are deprived of by the state of Utah. (i) Utah’s marriage restrictions impose substantial state-level costs on unmarried same-sex couples and same-sex couples married in another state. 36. The total cost to the significant number of unmarried same-sex couples and same-

sex couples married in another state is substantial and takes a variety of forms, including: (a) 37. Loss of employer-provided benefits

Many unmarried same-sex couples lack health insurance as a result of the

marriage exclusion. Recent studies show that people with same-sex unmarried partners are much more likely to be uninsured than are married people (Ash & Badgett, 2006; Heck et al; Ponce et al; Buchmueller and Carpenter, 2012). In the United States, the most common source of insurance is through one’s own or one’s spouse’s employment (DeNavas-Walt, et al., 2009, Fig 7). Because the price of insurance on the open market for individual coverage is more expensive than employees’ share of spousal coverage, many persons without employment-based insurance may be unable to afford it (see Badgett, 2010). While the Affordable Care Act reforms might

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reduce the cost of individual health insurance on the insurance exchanges, those costs might still outweigh the tax penalty paid for violating the coverage mandate, leaving some individuals uninsured. Also, since Utah is not fully participating in Medicaid expansion as part of the Affordable Care Act, many low-income individuals in same-sex couples are likely to remain uncovered. (b) 38. Increased transaction costs

Because of the marriage exclusion, same-sex couples may face large transaction

costs to create legal protections through wills, durable powers of attorney, health care proxies, second parent adoptions, cohabitation agreements, and other legal documents. Same-sex couples must sometimes spend thousands of dollars in legal fees to create such documents (Bernard and Lieber, 2009). If couples were allowed to marry, many of these protections would be automatically conferred by state law through marriage. (c) 39. Reduced economic efficiency of the family

Economists and other scholars have suggested several ways that marriage

promotes interdependence and enhances economic efficiency for couples and, therefore, for society as a whole. Because they are not allowed to marry under Utah law, same-sex couples are deprived of this enhanced economic efficiency and security. 40. In general, marriage provides a legal framework for living an interdependent

economic life. Through marriage, couples can buy property together and other household goods knowing that each member of the couple has ownership rights. And if the worst should happen, that is, if one spouse dies or the relationship dissolves, then the ownership rights would be clear. Thus the contractual nature of marriage facilitates a more efficient use of time and money resources for families than is available to unmarried couples. More specifically, marriage can enhance a couple’s economic efficiencies in the following ways:

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41.

Promoting Specialization of Labor: Nobel Prize-winning economist Gary Becker

has argued that the marriage contract allows for increasing household efficiency (Becker, 1991). Partners pool time and money, and then divide up their labor in ways that increase the family’s productivity in producing goods and services for family members. Without the presumed longterm nature of the relationship that marriage implies, as well as the division of marital property and the possibility of alimony if a marriage ends, specialization by either party would not necessarily be efficient for individuals in the long-term. For instance, marriage gives couples the economic security to make decisions about education and labor force participation knowing that one spouse can provide the primary economic support if the other can contribute less cash income to the family. If the relationship ends, a spouse who has sacrificed some earning potential will be eligible for alimony and a share of marital property to compensate him or her for those financial losses. 42. Reducing Transaction Costs: Marriage also promotes economic efficiency

through reducing transaction costs for couples, removing the need to renegotiate the terms of the legal relationship as couples experience changed circumstances (Pollak, 1985). 43. Providing Social Insurance: Marriage also facilitates wealth and income pooling

across individuals and within families, which provides insurance against bad times, such as a disability or death or the loss of a job (Pollak, 1985). 44. Taking Advantage of Economies of Scale: By encouraging larger household sizes,

marriage helps families take advantage of economies of scale. In other words, doubling the inputs of time and other resources in some tasks results in more than double the output of familyrelated goods and services (Nelson, 1988). 45. Signaling Commitment: In addition, the willingness to marry is an important

signal of commitment to a relationship (Eskridge, 1996). Through the decision to marry, each partner signals greater effort to maintain the relationship, a greater likelihood that the

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relationship will endure, and an agreement to make a fair settlement if, despite the good intentions of the parties, the relationship should end. The commitment to a long-term relationship and the rules for distribution of assets and income should the relationship end underlie the specialization, transaction costs, and social insurance functions of marriage. 46. Promoting The Provision Of Caring Labor: The long-term nature of the marital

commitment promotes reciprocity and altruism, as partners take care of one another and any children they might be raising together. The unpaid work done in families is essential for the survival of healthy human beings (Folbre, 1995). 47. According to these scholars of the family, the legal institution of marriage

promotes efficiency at the family level and therefore at the social level. Both individual couples and societies have an incentive to seek out and utilize this relatively efficient institution. 48. To the extent that same-sex couples in Utah are in positions that suggest a high

level of interdependence, those couples remain insecure relative to married couples because they cannot receive the full extent of public and private support that accompanies marriage. 49. The interdependence of members of same-sex couples in Utah is demonstrated by

the large disparities between the individual incomes of both members of a same-sex couple. In the average same-sex couple living in Utah in the 2009-2011 American Community Survey (ACS), the average difference in total individual incomes between the two partners was $31,747, which is somewhat lower than the average difference of $48,269 for married couples. However, the medians for the within-couple income difference were almost identical: $31,395 for samesex couples and $31,500 for different-sex couples. Both measures suggest a high degree of interdependence among same-sex couples--and in the case of the medians, an equal degree when compared to different-sex couples--since the disparities would be generated by interdependent or joint decision-making. Some of the interdependent decisions that might result in these disparities includes deciding together how many hours each partner will work, whether each partner

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participates in the paid labor force, how much time each partner spends in child rearing, etc. However, same-sex couples are making these joint decisions without the protections, such as marital property, provided for by marriage. 50. Couples also care for each other when one partner is aging, sick or disabled. In

0.2% of same-sex couples in Utah, one or both partners are 65 or older (the figure for married different-sex couples is 17% and is statistically significantly different). In 11% of same-sex couples (and 16% of married couples, not statistically significantly different), at least one member of the couple has a disability. In these couples, members may be taking on the responsibility to provide for or care for a senior or disabled member. However, when they do so they are not afforded the support that marriage would provide under Utah law. (d) 51. Costs of workplace discrimination

Furthermore, individuals in same-sex couples are likely to bear additional

workplace costs as a result of the marriage exclusion, most notably from the potential loss of productivity as a result of being denied the same rights as other employees who are or could marry. The differential treatment of employees with same-sex partners when compared with married heterosexual employees is likely to be viewed as workplace discrimination by lesbian, gay, and bisexual (LGB) employees (Badgett, 2001; Raeburn, 2004). That perception and reality of discrimination may have harmful effects on worker job satisfaction and lead to absenteeism and health problems (see generally Badgett, Durso, Kastanis and Mallory, 2013). 52. On the other hand, the equal treatment of LGB people in the workplace tends to

increase the disclosure of sexual orientation by people in same-sex couples and single LGB people (Badgett, 2001; Badgett, 2009; Ramos, Goldberg, and Badgett, 2009; Driscoll, Kelley, and Fassinger, 1996; Griffith & Hebl, 2002; Ragins & Cornwell, 2008; Rostosky & Riggle, 2002). More openness of LGB employees leads to positive workplace outcomes for those individuals and their employers, such as greater job satisfaction, increased work commitment,

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and lower turnover (see also Day & Schoenrade, 1997; Griffith & Hebl, 2002; Ellis & Riggle, 1995). 53. These studies suggest that the beneficial effects of laws and policies promoting

equality are likely to improve overall workplace productivity of individuals, which in turn would likely have a positive effect on individual promotion opportunities and individual wage growth. However, institutionalized conditions of inequality, such as state denial of the right to marry and private denial of employment benefits associated with marriage, will likely have the opposite effect by reducing commitment to working in Utah or to working for companies that have differential treatment of married and unmarried couples. (ii) Costs from loss of federal rights and benefits 54. Same-sex couples who have not married in another state but would marry if

allowed in Utah are not eligible for a wide range of federal rights and benefits. As set forth below, being denied these federal rights and benefits could impose substantial economic penalties on same-sex couples who would otherwise marry. These penalties include, among other things, (a) an increased federal tax burden; (b) decreased access to Social Security benefits; (c) an increased financial risk in the event one partner falls ill or dies; and (d) an increase in legal and other costs for couples that include a non-U.S. citizen. (a) Federal Taxes 55. Some same-sex couples will pay higher income taxes because they cannot marry. In particular, same-sex couples whose incomes are very different are most likely to benefit from filing joint federal income tax returns (see Badgett, 2010).

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56.

Unmarried same-sex couples might also pay more in taxes than they would if

married if their employers cover domestic partners. The federal government taxes the employer contribution to a domestic partner’s benefits as if it were cash income to the employee whose partner is covered. However, the federal government does not tax the employer contribution to a spouse’s benefits, including for a same-sex spouse. A 2007 study shows that the average person receiving domestic partner benefits is taxed $1069 in additional federal income and payroll taxes (Badgett, 2007). 57. Inability to marry also has federal estate tax implications upon the death of a

partner. Transfers of assets from the estate of a deceased person to that person’s spouse are taxfree, while transfers to a same-sex partner are taxed if the transfers exceed the current estate tax exclusion limit ($5.12 million in 2012). (b) Social Security Benefits 58. The Social Security system provides a variety of benefits to spouses and surviving

spouses of covered workers for retirement benefits, disability benefits, and survivor benefits. Same-sex couples are deprived of these benefits, which are designed to assist couples in old age or in the event of death or disability, because they cannot marry under Utah’s law. Notably, they are deprived of the benefits even though individuals in same-sex couples must pay into the social security program at the same rates as individuals in married couples. 59. On retirement, a married social security recipient is entitled to the larger of either

his or her own retirement benefit or one-half of his or her covered spouse’s retirement benefit. In Utah, the average monthly spousal retirement benefit was $702 in December 2012, or $8,424 per

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year. Since same-sex couples are not allowed to marry, they are not able to receive this spousal benefit at all. 60. On the death of a retired spouse, the surviving spouse receives the deceased

spouse’s benefit if it is greater than the survivor’s own social security retirement benefit. The Census Bureau data show that the average difference between the two benefits is $5,700 a year for same-sex couples in the U.S. (Goldberg, 2008). If the higher earning partner were to die, the surviving partner would lose the higher earner’s entire social security payment and continue to receive their lower payment. By contrast, if same-sex couples could marry, the lower earning surviving spouse would receive the higher earner’s benefit, which would be on average $5,700 over his or her own benefit. Thus, denying same-sex couples the right to marry could cost approximately half of the surviving members of such couples on average $5,700 a year in lost social security payments. Social Security also provides a survivor benefit to widows and widowers whose spouses have paid into the system but have not yet retired. According to the Social Security Administration, it provides a surviving spouse not only a $255 lump sum benefit on the death of a covered worker, but survivor benefits that are the equivalent of a $433,000 life insurance policy for a young family (Rosenblatt, 2008). In Utah, the average monthly survivor benefit was $1,248 in December 2012, or $14,982 per year. Because they are not allowed to marry, members of same-sex couples are not allowed this survivor benefit at all. 61. If a covered worker becomes disabled, his or her spouse who is 62 or over

receives a benefit of one-half the disabled recipient’s Social Security benefit. In December 2012, the average spousal disability benefit in Utah was $305 per month, or $3,663 per year. Because

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they are not allowed to marry, members of same-sex couples are not allowed this spousal disability benefit at all. (c) Aging Couples 62. An older person in a same-sex couple is at a greater risk of losing his or her home

if a partner dies because the survivor faces financial challenges that married surviving spouses do not face. As noted earlier, many surviving same-sex partners will lose or receive reduced social security benefits and may have to pay estate taxes on transferred assets. Married individuals do not face these additional financial burdens under federal law on the death of a spouse. 63. Members of same-sex couples in Utah are also at risk of losing their home when a

partner enters a nursing home because the State does not allow them to marry and the federal government would not recognize their relationship. Because long-term care costs are so high, Medicaid steps in to pay those costs when a nursing home resident’s savings run out. However, special Medicaid regulations protect a married resident from having to “spend down” assets and impoverishing and/or displacing their spouse who is not in the nursing home. First, a stillhealthy spouse of such a nursing home resident has a special claim to some of the nursing-home resident’s income and assets. Second, these protections extend to a married couple’s home. The government will eventually seize the home and force a sale to recover what it spent on nursing home bills—but only after the other, surviving spouse dies as well. 64. Because they cannot marry, same-sex couples are not provided these protections

in paragraph 63. The results can be financially catastrophic. Same-sex couples are not entitled to some of the nursing-home resident’s income or assets, and their home is not protected while the partner is still alive. Medicaid regulations also presume that joint bank accounts of same-sex

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couples are owned by the nursing home resident, so the government will require that the money in such accounts be spent down too. If the deed to the house is in the nursing home resident’s name and she has no chance of coming home, the home must be sold at fair market value. It does not matter how long the couple has been together, shared the home, and shared responsibility for the mortgage payments. (d) Couples That Include One Non-Citizen 65. In some same-sex couples in Utah, only one person is a U.S. citizen. If married,

the partner who is not a citizen would become eligible for permanent residence status, if he or she does not already have such status, and would not be subject to numerical limitations on immigration under federal law. Furthermore, spouses are eligible for citizenship after three years, compared with five years for other immigrants. 66. The inability to marry and receive the favored immigration status causes

economic harm in several ways. Non-citizen partners without lawful permanent residence status may need to return to their home countries for extended periods of time, requiring costly travel expenses. These extended visits may hinder the occupational advancement of either or both individuals, reducing earnings over the course of a lifetime. 67. Couples may decide to relocate to countries that will legally recognize their status

for immigration purposes. Relocation can be costly in direct moving costs as well as in loss of earnings. 68. Finally, those mixed-citizenship couples may require hiring legal counsel to

understand and enhance their legal options.

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D. Allowing Same-Sex Couples to Marry Will Have No Adverse Impacts On Heterosexual Marriages 69. Based on my research and experience, there is no evidence to conclude that

heterosexual marriages would be discouraged or made unstable if same-sex couples were allowed to marry. For example, data from the Netherlands, the first country to allow same-sex couples to marry, suggest that heterosexual marriage trends do not change when same-sex couples are permitted to marry (Badgett, 2009). More recent data in the United States also shows that patterns of marriage, divorce, and other indicators are not affected when same-sex couples can marry (Langbein and Yost, 2009; Eggleston, 2011; Dinno and Whitney, 2013). 70. Overall, an analysis of demographic trends, population-based surveys, and

qualitative interviews shows no evidence that granting the right to marry to same-sex couples will have any effect on heterosexual couples’ willingness to marry, their probability of divorce, or the non-marital birth rate. Citations and graphs for each of these measures can be found in Badgett (2009). (i) 71. Demographic trends within countries

The trends in marriage-related behavior (marriage, divorce, and non-marital

births) in the Netherlands do not correspond to the adoption of policies allowing marriage for same-sex couples in any way that would be consistent with same-sex marriage causing a decline in heterosexual marriage. The demographic trends in heterosexual marriage-related behavior seen in many European countries were underway long before the Netherlands gave same-sex couples the right to registered partnerships and later to marry. After 2001, the long-term trends continued. 72. Patterns of Dutch marriage rates show that the legal recognition of same-sex

relationships did not cause a decline in heterosexual marriage rates. The marriage rates in the Netherlands shows a long-term declining trend since the 1960’s that continued unchanged after giving same-sex couples registered partnership rights in 1998 and marriage rights in 2001. Year-

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to-year fluctuations occurred around that long-term trend both before and after 2001. 73. Divorce rates also show little change after same-sex couples began marrying,

providing no evidence of harm to heterosexual marriage. One common divorce measure is the “crude divorce rate,” or the number of divorces per 1,000 residents. That divorce measure began rising in the 1960’s in the Netherlands. However, divorce rates have not changed much at all in the Netherlands in the last two decades, with no increase in divorce rates in the time period when same-sex couples were granted registration or marriage rights. 74. Another commonly cited statistic is the proportion of babies born to unmarried

mothers, or the non-marital birth rate. The trend in the Netherlands with respect to the nonmarital birth rates was already in place long before the Netherlands gave same-sex couples partnership or marriage rights. The Dutch have traditionally been much less likely than some other Northern European countries to have babies before marriage, with fewer than one in ten births occurring to unmarried parents before 1988. However, the Dutch non-marital birth rate has been rising steadily since the 1980s, well before the Netherlands implemented registered partnerships in 1998 and gave same-sex couples the right to marry in 2001. (ii) 75. Comparisons between countries with and without rights for same-sex couples

The same rise in the non-marital birth rate in the Netherlands, from 12% in 1990

to 29% in 2002, also occurred over the same time period in other European countries that initially had low non-marital birth rates but did not recognize either marriage or registered partnership rights for same-sex couples. In Ireland, the rate increased from 17% in 1990 to 31 % in 2002; in Luxemburg from 12% to 23%; in Hungary from 14% to 32%; in Lithuania from 7% to 28%; in Slovakia from 9% to 22% (Badgett, 2009). This common demographic trend supports the idea that giving marriage rights to same-sex couples does not cause any increase in non-marital births.

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(iii) 76.

Comparisons of marriage attitudes across sexual orientation

The available survey and qualitative evidence suggests that lesbians and gay men

hold attitudes toward marriage that are similar to heterosexual peoples’ attitudes. Same-sex couples marry for similar reasons as heterosexuals, mainly to express commitment to one another, to demonstrate that commitment to families and communities, or to establish a legal bond that helps to solve the practical issues related to living a joint economic life together (Badgett, 2009; Eskridge & Spedale, 2007; Boele-Woelki, et al., 2006). Similarly, lesbians and gay men tend to share ideas about the meaning of marriage with their heterosexual peers, as my interviews and survey data show in the Netherlands and the United States. Mutual respect and understanding, as well as a willingness to cooperate and share family labor, define the new roles for married men and women, as seen in survey data presented in Badgett, 2009 and BoeleWoelki, et al., 2006. 77. Heterosexual reactions to same-sex couples marrying in the Netherlands also

reveal how easily same-sex couples have been integrated into marriage as an institution (Badgett, 2009). Same-sex couples report that heterosexual families and peers recognize them as marriageable and married. Heterosexual friends and family members encourage gay and lesbian couples to marry and offer unsolicited words and deeds that acknowledge the importance of a gay couple’s wedding. Heterosexuals mark the anniversaries of gay couples and remind them to use terms like “husband” and “wife.”

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Exhibit A

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Case 2:13-cv-00217-RJS Document 85-2 Filed 11/22/13 Page 27 of 47 M. V. LEE BADGETT
CAMPUS ADDRESS Center for Public Policy & Administration University of Massachusetts Amherst, MA 01003 Email: lbadgett@pubpol.umass.edu (v) 413-545-3162 (f) 413-545-1108 CURRENT POSITION: Director Professor Research Director EDUCATION: Univ. of California, Berkeley University of Chicago

Center for Public Policy and Administration, Univ. of Massachusetts Amherst Dept. of Economics, Univ. of Massachusetts Amherst Williams Institute, UCLA School of Law DEGREE Ph.D. A.B. DATE 1990 1982 FIELD Economics Economics

Dissertation title: "Racial Differences in Unemployment Rates and Employment Opportunities" PREVIOUS POSITIONS: Assistant & Associate Professor, Dept. of Economics, University of Massachusetts-Amherst (1997-2008) Adjunct Professor, Whittier Law School (Summer 2011) Visiting Professor, UCLA School of Law (2005-2007; summer 2008) Visiting researcher, Amsterdam School for Social Science Research, Univ. of Amsterdam (2003-4) Co-founder & Research Director, Inst. for Gay and Lesbian Strategic Studies (1994-2006, merged with Williams Inst. 2006) Assistant Professor, School of Public Affairs, University of Maryland, College Park (1990-97) Visiting Assistant Professor, Women’s Studies and Lesbian and Gay Studies, Yale University (1995-96) Research Analyst, National Commission for Employment Policy, U.S. Dept. of Labor (Summer, 1994) RECENT COURSES TAUGHT: Economics: Microeconomics (UMass) Microeconomics and Public Policy (UMass) Political Economy of Sexuality (UMass) Labor Economics--undergraduate and Ph.D. level (UMass) Feminist Economics (co-taught as visiting professor at University of Minnesota) Policy: Policy Analysis (UMass), Capstone course (UMass) Social Inequality and Social Justice: Problems and Solutions (UMass) Social Science and Public Policy on LGBT Issues (Whittier Law School Barcelona program; Umass Online) CURRENT RESEARCH TOPICS: Sexual orientation and gender identity discrimination in labor markets and impact of public policy Poverty in LGBT community Family structures and family policy, esp. same-sex partner recognition in US and other countries Domestic partner health care and pension benefits BOOKS: When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage, New York University Press, 2009. Distinguished Book Award, American Psychological Association, Division 44, 2010. Sexual Orientation Discrimination: An International Perspective, co-edited by M. V. Lee Badgett and Jeff Frank, Routledge, 2007. Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men, University of Chicago Press, 2001. BOOK MANUSCRIPT: Using to Research to Change the World, full manuscript under review. JOURNAL ARTICLES: “Same-Sex Legal Marriage and Psychological Well-Being: Findings From the California Health Interview Survey,” Richard G. Wight, Allen J. LeBlanc, and M. V. Lee Badgett, American Journal of Public Health, February 2013, Vol. 103, No. 2, 339M. V. Lee Badgett--page 1

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346. “Separated and Not Equal: Binational Same-Sex Couples,” Signs, Vol. 36, No. 4, Summer 2011, 793-798. “Social Inclusion and the Value of Marriage Equality in Massachusetts and the Netherlands,” Journal of Social Issues, Vol. 67, No. 2, 2011, pp. 316-334. “Are We All Decisionists Now? Response to Libby Adler,” online forum of Harvard Civil Rights and Civil Liberties Review, March 2011. “The Economic Value of Marriage for Same-sex Couples,” Drake Law Review, Vol. 58, No. 4, 2010, pp 1081-1116. “Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination 1998-2008,” M.V. Lee Badgett, Brad Sears, Holning Lau, and Deborah Ho. Chicago-Kent Law Review, Vol. 84, No. 2, 2009. “The Double-Edged Sword in Gay Economic Life: Marriage and the Market.” Washington and Lee Journal of Civil Rights and Social Justice, Vol. 15, No. 1, Fall 2008, pp. 109-128. “Registered Domestic Partnerships Among Gay Men and Lesbians: The Role of Economic Factors,” M. V. Lee Badgett, Gary J. Gates, and Natalya Maisel, Review of Economics of the Household, December 2008. “The Impact on Maryland’s Budget of Allowing Same-Sex Couples to Marry,” M. V. Lee Badgett, Amanda K. Baumle, Shawn Kravich, Adam P. Romero, R. Bradley Sears, University of Maryland Law Journal of Race, Religion, Gender and Class, Vol 7, No. 2, 2007, pp. 295-339. “Supporting Families, Saving Funds: An Economic Analysis of Equality for Same-sex Couples in New Jersey,” Rutgers Journal of Law & Public Policy, by M. V. Lee Badgett, R. Bradley Sears, and Deborah Ho, Vol. 4, No. 1, 2006. “Separate and Unequal: The Effect of Unequal Access to Employment-Based Health Insurance on Same-sex and Unmarried Different-Sex Couples,” Michael Ash and M. V. Lee Badgett, Contemporary Economic Policy, October 2006, Vol. 24, no. 4, pp 582-599. “Predicting Partnership Rights: Applying the European Experience to the United States,” Yale Journal of Law and Feminism, Vol. 17, No. 1, Spring 2005, 71-88. “Putting a Price on Equality? The Impact of Allowing Same-Sex Couples to Marry on California’s Budget,” coauthored with R. Bradley Sears, Stanford Law & Policy Review, Vol. 16, No. 1, 2005, pp. 197-232. Winner of 2005 Dukeminier Award for Best Sexual Orientation Law Review Articles, reprinted in The Dukeminier Award Journal, Vol. 5, 2006. “Now That We Do: Same-Sex couples and Marriage in Massachusetts,” with Randy Albelda and Michael Ash, Massachusetts Benchmarks, Vol. 7, Issue 2, 2005, 17-24. “Asking the Right Questions: Making the Case for Sexual Orientation Data,” 2004 Proceedings of the American Statistical Association, Statistical Computing Section [CD-ROM], Alexandria, VA: American Statistical Association. “Will Providing Marriage Rights to Same-Sex Couples Undermine Heterosexual Marriage?” Sexuality Research and Social Policy: Journal of NSRC, Vol. 1, No. 3, Sept. 2004, pp. 1-10. "Job Gendering: Occupational Choice and the Marriage Market," M. V. Lee Badgett and Nancy Folbre, Industrial Relations, April, 42(2), 2003, 270-298. "Wedding Bell Blues: The Income Tax Consequences of Legalizing Same-Sex Marriage," James Alm, M. V. Lee Badgett, and Leslie A. Whittington, National Tax Journal, Vol. LIII, No. 2, June 2000, pp. 201-214. "Assigning Care," co-authored with Nancy Folbre, International Labour Review, Vol. 138, No. 3, 1999, pp. 311-326.

M. V. Lee Badgett--page 2

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"Introduction: Towards Lesbian, Gay, and Bisexual Perspectives in Economics: Why and How They May Make a Difference," Prue Hyman and M. V. Lee Badgett, introduction to special section of Feminist Economics, co-edited by Badgett and Hyman, Vol. 4, No. 2, Summer 1998, pp. 49-54. "Readings Related to Lesbian and Gay Economics: An Annotated Bibliography," Feminist Economics, Vol. 4, No. 2, Summer 1998, pp. 111-116. “A Queer Marketplace: Books on Lesbian and Gay Consumers, Workers, and Investors,” (review essay) Feminist Studies, Vol. 23, No. 3, Fall 1997, pp. 607-632. "Employment and Sexual Orientation: Disclosure and Discrimination in the Workplace," Journal of Gay and Lesbian Social Services, Vol. 4, No. 4, 1996, pp. 29-52. Simultaneously published as Sexual Identity on the Job: Issues and Services, Alan L. Ellis and Ellen D.B. Riggle, editors, Harrington Park Press, 1996. Also published in Psychological Perspectives on Lesbian, Gay, and Bisexual Experiences, 2nd edition, ed. Linda D. Garnets and Douglas C. Kimmel, Columbia University Press, 2003. "The Wage Effects of Sexual Orientation Discrimination," Industrial and Labor Relations Review, Vol. 48, No. 4, July, 1995, pp. 726-739. Reprinted in Women Transforming Politics: An Alternative Reader, ed. by Cathy J. Cohen, Kathleen B. Jones, and Joan C. Tronto, New York University Press, 1997. "Gender, Sexuality and Sexual Orientation: All in the Feminist Family?" Feminist Economics, Vol. 1, No. 1, 1995. Reprinted in Gender and Political Economy: Incorporating Diversity into Theory and Policy, ed. by Ellen Mutari, Heather Boushey, and William Fraher IV, M.E. Sharpe, Armonk, NY, 1997. "Affirmative Action in a Changing Legal and Economic Environment," Industrial Relations, Vol. 34, No. 4, 1995. "Rising Black Unemployment: Changes in Job Stability or Employability?" Review of Black Political Economy, Vol. 22, No. 3, Winter 1994, pp. 55-75. "The Economics of Sexual Orientation: Establishing a Research Agenda," M. V. Lee Badgett and Rhonda M. Williams, Feminist Studies, Vol. 18, No.3, 1992. BOOK CHAPTERS: “Patterns of Relationship Recognition by Same-Sex Couples in the United States,” by M. V. Lee Badgett and Jody Herman, in International Handbook on the Demography of Sexuality, ed. by Amanda Baumle, Springer, 2013. “Marriage by the Numbers,” in Here Come the Brides: Reflections on Lesbian Love and Marriage, ed. by Audrey Bilger & Michele Kort, Seal Press, Berkeley, 2012, pp. 170-176. “Bringing All Families to Work Today: Equality for Gay and Lesbian Workers and Their Families,” in The Changing Realities of Work and Family: A Multidisciplinary Approach, ed. By Amy Marcus-Newhall, Diane Halpern, and Sherylle Tan, Wiley-Blackwell, 2008. “The Global Gay Gap: Institutions, Markets, and Social Change,” with Jefferson Frank, Sexual Orientation Discrimination: An International Perspective, edited by Badgett and Frank, Routledge, 2007. “Discrimination Based on Sexual Orientation: A Review of the Economics Literature and Beyond,” in The Handbook of the Economics of Discrimination, ed. By William M. Rodgers III, Edward Elgar, 2006. Also appearing in Sexual Orientation Discrimination: An International Perspective, edited by Badgett and Frank. "Is Affirmative Action Working for Women?" (co-authored with Jeannette Lim) in Mary C. King (ed.) Squaring Up: Policy Strategies to Raise Women's Incomes in the United States. Ann Arbor, MI: University of Michigan Press, 2001. “Lesbian and Gay Think Tanks: Thinking for Success,” Identity/Space/Power: Lesbian, Gay, Bisexual, and Transgender Politics, edited by Mark Blasius, Princeton University Press, 2000. “The Impact of Affirmative Action on Public-Sector Employment in California, 1970-1990,” in Paul Ong, editor, Impacts of Affirmative Action: Policies & Consequences in California, AltaMira Press, 1999; and in The Impact of Affirmative Action on

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Public-Sector Employment and Contracting in California, A Technical Assistance Program Report of the California Policy Seminar, University of California, 1997. "Where the Jobs Went in the 1990-91 Downturn: Varying (Mis)Fortunes or Homogeneous Distress?" Civil Rights and Race Relations in the Post Reagan-Bush Era, ed. Samuel L. Myers, Praeger, Westport, CT, 1997, pp 99-147. “The Economic Well-Being of Lesbian and Gay Adults’ Families,” in Lesbian, Gay and Bisexual Identities in the Families: Psychological Perspectives, ed. by Charlotte J. Patterson and Anthony R. D’Augelli, Oxford University Press, 1997. "Choices and Chances: Is Coming Out at Work a Rational Choice?" in Queer Studies: A Multicultural Anthology, ed. by Mickey Eliason and Brett Beemyn, New York University Press, 1996. "Beyond Biased Samples: Challenging the Myths on the Economic Status of Lesbians and Gay Men," in Homo Economics: Capitalism, Community, and Lesbian and Gay Life, ed. by Amy Gluckman and Betsy Reed, Routledge Press, 1997. "Occupational Strategies of Lesbians and Gay Men," M. V. Lee Badgett and Mary C. King, in Homo Economics: Capitalism, Community, and Lesbian and Gay Life, ed. by Amy Gluckman and Betsy Reed, Routledge Press, 1997. "Thinking Homo/Economically," in Walter L. Williams and James Sears, eds., Combating Homophobia and Heterosexism, forthcoming, Columbia University Press. (Reprinted in A Queer World: The CLAGS Reader, ed. by Martin Duberman, New York University Press, 1997.) "Evidence of the Effectiveness of Equal Employment Opportunity Policies: A Review," M. V. Lee Badgett and Heidi I. Hartmann, in Economic Perspectives on Affirmative Action, ed. by Margaret C. Simms, Joint Center for Political and Economic Studies, 1995. "The Changing Contours of Discrimination: Race, Gender, and Structural Economic Change," M. V. Lee Badgett and Rhonda M. Williams, in Understanding American Economic Decline, David Adler and Michael Bernstein, eds., Cambridge University Press, Cambridge, 1994. POLICY REPORTS: M. V. Lee Badgett and Jody L. Herman, “Sexual Orientation and Gender Identity Diversity in Entertainment: Experiences and Perspectives of SAG-AFTRA Members,” Williams Institute and SAG-AFTRA, September 2013. M. V. Lee Badgett, Laura Durso, and Alyssa Schneebaum, “New Patterns of Poverty in the Lesbian, Gay, and Bisexual Community,” Williams Institute, May 2013. M. V. Lee Badgett, Laura Durso, Angel Kastanis, and Christy Mallory, “The Business Impact of LGBT-Supportive Policies,” Williams Institute, May 2013. Angel Kastanis and M. V. Lee Badgett, “Estimating the Economic Boost of Marriage Equality in Delaware,” Williams Institute, May 2013. Angel Kastanis and M. V. Lee Badgett, “Estimating the Economic Boost of Marriage Equality in Rhode Island,” Williams Institute, May 2013. Angel Kastanis and M. V. Lee Badgett, “Estimating the Economic Boost of Marriage Equality in Minnesota,” Williams Institute, May 2013. Angel Kastanis and M. V. Lee Badgett, “Estimating the Economic Boost of Marriage Equality in Illinois,” Williams Institute, March 2013, http://williamsinstitute.law.ucla.edu/wp-content/uploads/IL-Econ-Impact-Mar-2013.pdf. “Administrative Impact of Adding Sexual Orientation and Gender Identity to Texas’s Employment Non-Discrimination Law,” Christy Mallory and Lee Badgett, December 2012.

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“The Economy Impact of Extending Marriage to Same-sex Couples in Australia,” M. V. Lee Badgett and Jennifer Smith, February 2012, Williams Institute. “Impact of Extending Sexual Orientation and Gender Identity Nondiscrimination Requirements to Federal Contractors,” Williams Institute, February 2012. “The Economic Impact of Extending Marriage to Same-Sex Couples in Washington,” Angeliki Kastanis, M. V. Lee Badgett, and Jody L. Herman, January 2012. “Estimating the Economic Boost of Marriage Equality in Iowa: Sales Tax,” Angeliki Kastanis, M. V. Lee Badgett, and Jody L. Herman, December 2011. “Patterns of Relationship Recognition by Same-Sex Couples in the United States,” M. V. Lee Badgett and Jody L. Herman, Williams Institute, November 2011. "Spending on Weddings of Same-Sex Couples in the United States," By Craig J. Konnoth, M.V. Lee Badgett, Brad Sears July 2011, Williams Institute. “The Impact of Creating Civil Unions for Same-Sex Couples on Delaware's Budget,” By Jody L. Herman, Craig J. Konnoth, M.V. Lee Badgett, March 2011 Williams Institute. "The Fiscal Impact of Creating Civil Unions on Colorado’s Budget," By Jody L. Herman, Craig J. Konnoth, M.V. Lee Badgett, February 2011, Williams Institute. "The Impact on Rhode Island’s Budget of Allowing Same-Sex Couples to Marry," By Jody L. Herman, Craig J. Konnoth, M.V. Lee Badgett, February 2011, Williams Institute. "Employment Discrimination against Lesbian, Gay, Bisexual, and Transgender People in Oklahoma," By Christy Mallory, Jody L. Herman, M.V. Lee Badgett, January 2011, Williams Institute. "Employment Discrimination against LGBT Utahns," By Clifford Rosky, Christy Mallory, Jenni Smith, M.V. Lee Badgett, January 2011, WIlliams Institute. "Utah Census Snapshot: New Study on Same-Sex Couples in Utah," By Jody L. Herman, Christy Mallory, M.V. Lee Badgett, Gary J. Gates, November 2010, Williams Institute. "The Potential Impact of HB444 on the State of Hawai'i," by Naomi Goldberg, R. Bradley Sears, and M.V. Lee Badgett, June 2010, Williams Institute. "The Impact of Expanding FMLA Rights to Care for Children of Same-Sex Partners," M. V. Lee Badgett, June 2010, Williams Institute. "The Impact of Employment Nondiscrimination Legislation in South Dakota," Naomi Goldberg, M. V. Lee Badgett, and Chris Ramos, January 2010, Williams Institute. "The Impact of Extending Marriage to Same-Sex Couples on the New Jersey Budget," by Brad Sears, Christopher Ramos, and M.V. Lee Badgett, December 2009, Williams Institute. “Best Practices for Asking Questions about Sexual Orientation on Surveys,” editor and co-author, November 2009, Williams Institute. “The Business Boost from Marriage Equality: Evidence from the Health and Marriage Equality in Massachusetts Survey,” by Naomi Goldberg, Michael Steinberger, and M.V. Lee Badgett, May 2009, Williams Institute. “The Effects of Marriage Equality in Massachusetts: A survey of the experiences and impact of marriage on same-sex couples,”by Christopher Ramos, Naomi G. Goldberg, and M.V. Lee Badgett, May 2009, Williams Institute. “The Impact on Maine’s Budget of Allowing Same-Sex Couples to Marry,” by Christopher Ramos, M. V. Lee Badgett, Michael D. Steinberger, and Brad Sears, April 2009, Williams Institute. M. V. Lee Badgett--page 5

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“The Economic Impact of Extending Marriage to Same-Sex Couples in the District of Columbia,” By Christopher Ramos, M. V. Lee Badgett, and Brad Sears, April 2009, Williams Institute. “Fact Sheet: Tax Implications for Same-Sex Couples,” by Naomi Goldberg and M. V. Lee Badgett, April 2009, Williams Institute. “The Economic Impact of Extending Marriage to Same-sex Couples in Vermont,” By M. V. Lee Badgett, Christopher Ramos, and Brad Sears, March 2009, Williams Institute. “Poverty in the Lesbian, Gay, and Bisexual Community,” by Randy Albelda, M.V. Lee Badgett, Gary Gates, and Alyssa Schneebaum, March 2009, Williams Institute. “Florida Adoption Ban/ Cost Estimate,” by Naomi Goldberg and M. V. Lee Badgett,February 2009, Williams Institute. “Kentucky Foster Care/Adoption Ban Cost Estimate,” By Naomi Goldberg and M. V. Lee Badgett, February 2009, Williams Institute. “The Economic Impact of Extending Marriage to Same-sex Couples in Maine,” By M. V. Lee Badgett, Christopher Ramos, and Brad Sears, February 2009, Williams Institute. “Evidence of Employment Discrimination on the Basis of Sexual Orientation and Gender Identity: Complaints Filed with State Enforcement Agencies 1999-2007,” By M. V. Lee Badgett, Christopher Ramos, and Brad Sears, November 2008, Williams Institute. “The Fiscal Impact of Extending Federal Benefits to Same-Sex Domestic Partners,” Naomi G. Goldberg, Christopher Ramos, and M.V. Lee Badgett, September 2008. “Marriage, Registration and Dissolution by Same-sex Couples in the U.S.,” Gary J. Gates, M.V. Lee Badgett, and Deborah Ho, Williams Institute, July 2008. “The Impact of Extending Marriage to Non-Resident Same-Sex Couples on the Massachusetts Budget,” By M. V. Lee Badgett and R. Bradley Sears, Williams Institute memo to Massachusetts Secretary of Housing and Economic Development, June 2008. “The Impact of Extending Marriage to Same-Sex Couples on the California Budget,” Brad Sears and M.V. Lee Badgett, Williams Institute, June 2008. “The Impact on Iowa's Budget of Allowing Same-Sex Couples to Marry,” M.V. Lee Badgett, Amanda K. Baumle, Adam P. Romero and Brad Sears, Williams Institute, April 2008. “The Impact on Oregon's Budget of Introducing Same-Sex Domestic Partnerships,” By M.V. Lee Badgett, R. Bradley Sears, Elizabeth Kukura, and Holning Lau, Williams Institute, February 2008. “Implications of HB 9 for Businesses in New Mexico,” M.V. Lee Badgett, Williams Institute, January 2008. “Unequal Taxes on Equal Benefits: The Taxation of Domestic Partner Benefits,” M.V. Lee Badgett, Center for American Progress and Williams Institute, December 2007. “The Impact on Maryland's Budget of Allowing Same-Sex Couples to Marry,” M.V. Lee Badgett, Amanda Baumle, Shawn Kravich, Adam P. Romero, and R. Bradley Sears, Williams Institute, November 2007. Amici curiae brief, in re Marriage Cases, Supreme Court of California, September 2007, M. V. Lee Badgett and Gary J. Gates. “Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination,” by Lee Badgett, Holning Lau, Brad Sears, and Deborah Ho, Williams Institute, UCLA, June 2007. Census Snapshot series: 50 state reports; Williams Institute, UCLA, with various co-authors, 2007.

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“Methodological Details for Census Snapshot,” August 2007, Danielle MacCartney, M. V. Lee Badgett, and Gary Gates. “Adoption and Foster Care by Gay and Lesbian Parents in the United States,” Williams Institute and Urban Institute, March 2007, Gary Gates, Lee Badgett, Jennifer Macomber, and Kate Chambers. “The Financial Impact of Domestic Partner Benefits in New Hampshire,” Williams Institute, December 2006. “Economic Benefits from Same-Sex Weddings in New Jersey,” Williams Institute, December 2006. “Frequently Asked Questions about Providing Domestic Partner Benefits,” M. V. Lee Badgett and Michael A. Ash, Williams Institute, October 2006. “The Impact of the Colorado Domestic Partnership Act on Colorado's State Budget,” M.V. Lee Badgett, R. Bradley Sears, Roger Lee, and Danielle MacCartney, Williams Institute. October 2006 “The Effect of Marriage Equality and Domestic Partnership on Business and the Economy,” M.V. Lee Badgett and Gary J. Gates, Williams Institute, October 2006. “The Impact on Washington’s Budget of Allowing Same-Sex Couples to Marry,” M.V. Lee Badgett, R. Bradley Sears, Elizabeth Kukura, and Holning Lau, IGLSS and Williams Institute, 2006. “The Impact on New Mexico’s Budget of Allowing Same-Sex Couples to Marry,” M.V. Lee Badgett, R. Bradley Sears, Steven K. Homer, Patrice Curtis, and Elizabeth Kukura, IGLSS and Williams Institute, 2006. “Positive Effects on State of Alaska from Domestic Partnership Benefits,” Williams Institute, 2006. “The Cost to Ocean County of Providing Pension Benefits to Employees’ Domestic Partners,” Williams Institute, 2006. “The Impact on New Hampshire’s Budget of Allowing Same-Sex Couples to Marry,” R. Bradley Sears, M. V. Lee Badgett, and Elizabeth Kukura, IGLSS and Williams Institute, 2005. “Counting on Couples: Fiscal Savings from Allowing Same-Sex Couples in Connecticut to Marry,” M.V. Lee Badgett, R. Bradley Sears, Patrice Curtis, and Elizabeth Kukura, IGLSS and Williams Project on Sexual Orientation and the Law, 2005. “Will Providing Marriage Rights to Same-sex Couples Undermine Heterosexual Marriage? Evidence from Scandinavia and the Netherlands,” Discussion paper, Council on Contemporary Families and the Institute for Gay and Lesbian Strategic Studies, July 2004. “The Business Cost Impact of Allowing Same-sex Couples to Marry,” co-authored with Gary Gates. Human Rights Campaign and Institute for Gay and Lesbian Strategic Studies, 2004. “Same-sex Couples and Their Children in Massachusetts: A View from Census 2000,” co-authored with Michael Ash, Nancy Folbre, Lisa Saunders, and Randy Albelda, Angles, Institute for Gay and Lesbian Strategic Studies, Amherst, MA, February 2004. Sears, R. Bradley, and M. V. Lee Badgett. “The Impact on California’s Budget of Allowing Same-Sex Couples to Marry,” Institute for Gay and Lesbian Strategic Studies and Williams Project of UCLA Law School, May 2004. Sears, R. Bradley, and M. V. Lee Badgett. “Same-sex Couples and Same-sex Couples Raising Children in California,” Institute for Gay and Lesbian Strategic Studies and Williams Project of UCLA Law School, May 2004. “The Bottom Line on Family Equality: The Impact of AB205 on California Businesses,” M. V. Lee Badgett and R. Bradley Sears, Institute for Gay and Lesbian Strategic Studies and Williams Project, August 2003. “Supporting Families, Saving Funds: A Fiscal Analysis of New Jersey’s Domestic Partnership Act,” M.V. Lee Badgett and R. Bradley Sears, Institute for Gay and Lesbian Strategic Studies and Williams Project of UCLA Law School, December 2003. “Equal Rights, Fiscal Responsibilities: The Impact of AB205 on California’s Budget,” M.V. Lee Badgett and R. Bradley Sears, Institute for Gay and Lesbian Strategic Studies and Williams Project of UCLA Law School, May 2003.

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“Left Out of the Count: Missing Same-sex Couples in Census 2000,” M. V. Lee Badgett and Marc A. Rogers, Institute for Gay and Lesbian Strategic Studies, Amherst, MA, 2003. "Calculating Costs with Credibility: Health Care Benefits for Domestic Partners," Angles, Vol. 5, Issue 1, 2000. Income Inflation: The Myth of Affluence Among Gay, Lesbian, and Bisexual Americans, Joint publication of NGLTF Policy Institute and Institute for Gay and Lesbian Strategic Studies, 1998. Reprinted in The Gay & Lesbian Review, Spring 2000. "The Fiscal Impact on the State of Vermont of Allowing Same-Sex Couples to Marry," IGLSS Technical Report 98-1, Oct. 1998. Creating Communities: Giving and Volunteering by Gay, Lesbian, Bisexual, and Transgender People, Working Group on Funding Lesbian and Gay Issues, Institute for Gay and Lesbian Strategic Studies, February 1998. (Co-authored with Nancy Cunningham) “Vulnerability in the Workplace: Evidence of Anti-Gay Discrimination,” Angles: The Policy Journal of the Institute for Gay and Lesbian Strategic Studies, Vol. 2, No. 1, September 1997. “For Richer, For Poorer: The Cost of Nonrecognition of Same Gender Marriages,” M. V. Lee Badgett and Josh A. Goldfoot, Angles: The Policy Journal of the Institute for Gay and Lesbian Strategic Studies, Vol. 1, No. 2, May 1996. "Pervasive Patterns of Discrimination Against Lesbians and Gay Men: Evidence from Surveys Across the United States," Lee Badgett, Colleen Donnelly, and Jennifer Kibbe, National Gay and Lesbian Task Force Policy Institute, 1992. "The Impact of the Construction of Luz SEGS VIII on California and the Project Area," William T. Dickens, Lee Badgett, and Carlos Davidson, February 1989. OP-EDS AND OTHER PUBLICATIONS: “The Economic Benefits of Gay Marriage,” March 29, 2013, PBS News Hour Blog, The Business Desk, http://www.pbs.org/newshour/businessdesk/2013/03/the-economic-benefits-of-gay-m.html Review of Counted Out: Same-Sex Relations and Americans’ Definitions of Family, in Gender & Society, August 2012, Vol 26, No. 4, 674-676. “Gay Marriage Good for Family and Economy,” The Drum Opinion, ABC Online (Australian Broadcasting Corp.), March 6, 2012. “What Obama Should Do About Workplace Discrimination,” New York Times, Feb. 6, 2012. “High Costs of Discrimination,” Worcester Telegram, M. V. Lee Badgett and Jody Herman, May 11, 2011. Featured guest column, The Economist debate on gay marriage, January 6, 2011, http://www.economist.com/debate/days/view/638. “Summer of Love and Commitment,” The Huffington Post, Sept. 3, 2008. “Sexual Orientation, Social and Economic Consequences,” in International Encyclopedia of the Social Sciences, 2nd Edition, ed. William A. Darity, Jr., Macmillan Reference USA, 2008. “The Wedding Economy,” The New York Times, January 7, 2007. “The Closet Door’s Open: What’s Behind Hartford’s Surge in Gay Population?” The Hartford Courant, Gary J. Gates and M. V. Lee Badgett, November 5, 2006. “The Future of Same-Sex Marriage,” Social Work Today, November 2006. “The Gay Health Insurance Gap,” www.alternet.org, October 26, 2006. “What’s Good for Same-Sex Couples is Good for Colorado,” The Daily Camera, Boulder, CO, October 28, 2006.

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Book review of Inheritance Law and the Evolving Family. By Ralph Brashear. Feminist Economics, vol. 12, no. 1-2, 2006. “Equality Doesn’t Harm ‘Family Values’”, with Joop Garssen, National Post (Canada), August 11, 2004. “Prenuptial Jitters: Did Gay Marriage Destroy Heterosexual Marriage in Scandinavia?” Slate Magazine, May 20, 2004, http://slate.msn.com/id/2100884/. Brad Sears and Lee Badgett, “Tourism and Same-sex Marriage,” San Diego Union-Tribune, June 2, 2004. http://www.signonsandiego.com/uniontrib/20040527/news_lz1e27sears.html “Equality Is Not Expensive,” Connecticut Law Tribune, April 19, 2004. “Domestic Partner Bill Won’t Be Burden to Business,” Orange County Register, April 18, 2004, with Brad Sears. “Economics” and “Boycotts”, entries for Encyclopedia of Gay, Lesbian, Bisexual, and Transgender History, ed. By Marc Stein, Scribners, forthcoming Dec 2003. “Recognizing California Couples: Domestic-Partner Law Attacked by Anti-Gay Senator Could Boost Flow of Cash to State,” M. V. Lee Badgett and R. Bradley Sears, Daily Journal, Oct. 14, 2003. “A Win at Cracker Barrel,” The Nation, Feb. 10, 2003. “Why I was a Dem for a Day,” Daily Hampshire Gazette, June 2002. Commentary on Boy Scouts of America, WFCR, Amherst, MA, August 13, 2001. "Sexual Orientation," Richard Cornwall and M. V. Lee Badgett, entry for Encyclopedia of Feminist Economics, ed. by Meg Lewis and Janice Peterson, Edward Elgar, 2000. "Lesbians, social and economic situation," entry for International Encyclopedia of the Social and Behavioral Sciences, forthcoming. "One Couple's 'Penalty' remains another's privilege", with James Alm and Leslie A. Whittington, Boston Globe, Sept. 3, 2000, p. E2. “Domestic partner status unfair to gay couples,” Springfield Sunday Republican, op-ed April 2, 2000, p. B3. “Do Sexual Orientation Policies Help Lesbians?” in Women's Progress: Perspectives on the Past, Blueprint for the Future, Institute for Women’s Policy Research, Fifth Policy Research Conference Proceedings, Washington, DC, 1998. "Census Data Needed," letter to the editor, The Washington Blade, November 7, 1997, p. 37. “Same-sex partners bring nurturing--and financial benefits--to the altar,” op-ed piece with Gregory Adams, Chicago SunTimes, June 8, 1996, p. 16. "The Last of the Modernists: A Reply," Feminist Economics, Vol. 1, No. 2, 1995. "Domestic Partner Recognition: Doing the Right--and Competitive--Thing," Synthesis: Law and Policy in Higher Education, Vol. 6, No. 4, Spring 1995. "Equal Pay for Equal Families," Academe, May/June 1994. "Lesbian and Gay Campus Organizing for Domestic Partner Benefits," in Higher Education Collective Bargaining During a Period of Change, Proceedings, Twenty-Second Annual Conference, April 1994, The National Center for the Study of Collective Bargaining in Higher Education and the Professions, Baruch College, CUNY, 1994. "Beyond Biased Samples: Challenging the Myths on the Economic Status of Lesbians and Gay Men," pamphlet published by National Organization of Gay and Lesbian Scientists and Technical Professionals and the Institute for Gay and Lesbian Strategic Studies, 1994. (Early version of book chapter of same title.)

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Co-author and co-editor, Labor and the Economy, published by the Center for Labor Research and Education, Institute of Industrial Relations, UC Berkeley, 1989. "Looking for the Union Label: Graduate Students at U.C.," California Public Employee Relations, No. 85, June 1990. "Rusted Dreams: Documenting an Economic Tragedy," Labor Center Reporter, No. 219, October 1987. "How the Fed Works," Labor Center Reporter, No. 177, November 1986. EXPERT WITNESS EXPERIENCE (LITIGATION): Written testimony, Darby/Lazaro v. Orr, April 2013 (challenge to Illinois’ marriage equality prohibition) Written testimony, Sevcik v. Sandoval, 2012 (challenge to Nevada’s marriage equality prohibition) Written Testimony, Bassett v. Snyder, No. 2:12-cv-100382012 (E.D. Mich.), 2012 (challenge to Michigan’s Domestic Partner Benefit Restriction Act). Written Testimony, Glossip v. Missouri Dep’t of Transp. and Highway Patrol Employees' Ret. Sys., No. 10-CC00434 (Mo. Cir. Ct., Cole Cnty.), 2011 (challenge to denial of death benefit to state trooper’s surviving same-sex partner). Written Testimony, Collins v. Brewer (later Diaz v. Brewer), No. 2:09-cv-02402 (D. Ariz.), 2010 (challenge to Arizona’s cancellation of domestic partner benefits). Deposition and Trial Testimony, Perry v. Schwarzenegger (later Perry v. Brown), No. 3:09-cv-02292 (N.D. Cal.), 2010 (challenge to California’s Proposition 8). Deposition and Written Testimony, Varnum v. Brien, No. CV5965 (Iowa Dist. Ct., Polk Cnty.), 2007 (challenge to exclusion of same-sex couples from marriage in Iowa). Written Testimony, In re California Marriage Cases, Judicial Council Coordination Proceeding No. 4365 (Calif. Super. Ct., San Francisco Cnty.), 2004 (challenge to exclusion of same-sex couples from marriage in California). Written Testimony, Deane & Polyak v. Conaway, (Md. Cir. Ct., Baltimore Cnty.), 2005 (challenge to exclusion of same-sex couples from marriage in Maryland) LEGISLATIVE WITNESS EXPERIENCE (Selected): U.S. Senate Committee on Health, Education, Labor, and Pensions, S.811, The Employment Non-Discrimination Act of 2011, June 12, 2012. Written Testimony, S. 598, The Respect for Marriage Act: Assessing the Impact of DOMA on American Families, M. V. Lee Badgett, Ilan H. Meyer, Gary J. Gates, Nan D. Hunter, Jennifer C. Pizer, Brad Sears. July 2011. U.S. House of Representatives, Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Postal Service, and the District of Columbia on HR 2517: Domestic Partnership Benefits and Obligation Act of 2009, July 2009. U.S. House of Representatives, Committee on Education and Labor, Subcommittee on Health, Employment, Labor, and Pensions, Testimony on Employment Non-Discrimination Act (HR 2015), September 2007. Written and oral testimony on legislation or regulations in Alaska, California, Hawaii, Maryland, Massachusetts, New Hampshire, Oregon, Rhode Island, Vermont

SELECTED MEDIA APPEARANCES: Featured guest, Encounter, Radio National, ABC (Australian Broadcasting Corp), October 9, 2011. Featured guest, Faith Middleton Show, http://www.yourpublicmedia.org/content/wnpr/faith-middleton-show-when-gay-peopleget-married, Jan. 13, 2011.

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Featured guest, “Same-Sex Marriage, Five Years On,” On Point, National Public Radio, May 27, 2009. http://www.onpointradio.org/2009/05/same-sex-marriage-five-years-on Featured guest, “Gay Commerce,” Talk of the Nation, National Public Radio, 1997. Featured guest, “Gay Market,” Odyssey: A Daily Talk Show of Ideas, NPR nationally syndicated show, 2005. http://www.chicagopublicradio.org/DWP_XML/od/2005_05/od_20050512_1200_4906/episode_4906.ram Interviewed on All Things Considered, “Gay Marriage in Massachusetts, One Year Later,” May 2005. http://www.npr.org/templates/story/story.php?storyId=4655621 Featured guest, CNN American Morning: “The Future of Marriage,” June 2006. http://www.law.ucla.edu/williamsinstitute/images/CNN_AmericanMorning_FutureOfMarriage_LeeBadgett_062006.mov

WORK IN PROGRESS AND PAPERS UNDER REVIEW: “Assessing the effect of nondiscrimination policies related to sexual orientation and gender identity,” Badgett and Samantha Schenck. “Uncovering Gay, Lesbian, and Bisexual Poverty in the United States,” Randy Albelda, M. V. Lee Badgett, and Alyssa Schneebaum. “Are Gay People Happy?” M. V. Lee Badgett and Alyssa Schneebaum. “Minority stress and its association with cohabitation and Domestic Partnership registration in California,” Natalya Maisel, Gary J. Gates, and M. V. Lee Badgett, August 2007, under review. “Gay and Lesbian Families: A Research Agenda,” Gary J. Gates and M. V. Lee Badgett, August 2006. "Breadwinner Dad, Homemaker Mom: An Interdisciplinary Analysis of Changing Gender Norms in the United States, 19771998." Lee Badgett, Pamela Davidson, Nancy Folbre, and Jeannette Lim, in progress, 2000.

SELECTED PRESENTATIONS OF PAPERS SUBMITTED TO ACADEMIC CONFERENCES: “Assessing the effect of nondiscrimination policies related to sexual orientation and gender identity,” Badgett and Samantha Schenck. Presented at: Sexual Orientation Discrimination in the Labor Market, University of Paris 1 Pantheon-Sorbonne, 6/20/2012; International Association for Feminist Economics, Barcelona Spain. 6/27/2012; APPAM conference, November 2012. “Waves of Change: Is Latin America Really Following Europe in Same-Sex Couples?,” at 8th Annual Update, Williams Institute, “Global Arc of Justice: Sexual Orientation Law Around the World, March 14, 2009. “Gay poverty,” Presented at 2009 Allied Social Science Association Meeting; 2009 Association for Public Policy Analysis and Management Research Conference; 2008 IAFFE Research Conference, Torino, Italy, June 2008; Williams Institute Annual Update, February 2008. “Registered Domestic Partnerships Among Gay Men and Lesbians: The Role of Economic Factors,” (with Gary J. Gates and Natalya Maisel), presented at 2007 APPAM Meeting, Washington, DC; 2008 Allied Social Science Associations Annual meeting, New Orleans. “Predicting Same-Sex Marriage in Europe & the US,” Presented at 2008 IAFFE Research Conference, Torino, Italy, June 2008. “Social Lab Outcomes: Same-Sex Couples and Legal Recognition,” Temple University Law School, “States as Social Laboratories,” Oct. 20, 2007. “The Double-Edged Sword in Gay Economic Life: Marriage and the Market.” Washington & Lee School of Law, Feb 2008. “Why Marry?” Presented at 2006 IAFFE Research Conference, Sydney, Australia, July 2006; New School for Social Research, October 2006; Sociology Family Working Group, UCLA, 2006.

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“An exploration of foster care and adoption among lesbians and gay men,” joint work with Jennifer Macomber, Kate Chambers, Gary Gates. Family Pride conference, Philadelphia, PA, May 2006. “Survey Data on Sexual Orientation: Building a Professional Consensus,” presented at 2005 Joint Statistical Association Meetings, August 2005. Also presented to Canadian Population Society, June 2005; Williams Project Annual Update, UCLA Law School, Feb. 2005. “Alternative Legal Statuses for Same-sex couples and other families: Can Separate Be Equal Enough?” Presented at International Association for Feminist Economics, Washington DC, July 2005; APPAM, Washington, DC, November 2005; UCLA Law School 2006. “Looking into the European Crystal Ball: What Can the U.S. Learn About Same-Sex Marriage?” Tulsa Gay and Lesbian History Project, October 2004; University of Connecticut, October 2004; Yale University, February 2005; American Psychological Association, August 2005; National Council of Family Relations (invited special session), 2005. “Predicting Partnership Rights: Applying the European Experience to the United States,” Yale University Law School, March 5, 2005. “Asking the Right Questions: Making the Case for Sexual Orientation Data,” Joint Statistical Meetings of the American Statistical Association, Toronto, August 2004; Williams Project Annual Update, UCLA, February 2005; Canadian Population Society, June 3, 2005. “A New Gender Gap: Sex Differences in Registered Partnerships in Europe,” International Association for Feminist Economics research conference, London, August 2004. “Variations on an Equitable Theme: International Same-sex Partner Recognition Laws,” Research Conference of International Associate for Feminist Economics, July 2002. Stockholm University, September 2003; University of Linz, Austria, November 2003; University of Amsterdam, June 2004; American Political Science Association, Chicago, Sept. 2004. “The Myth of Gay Affluence and Other Tale Tales: The Political Economy of Sexual Orientation,” University of California, San Diego, June 2002. "A Family Resemblance: Legal Recognition of Same-Sex Partners in the United States," Research Conference of International Association for Feminist Economics, Oslo, Norway, June 2001; University of Southern Maine, October 2001; University of Massachusetts, Feb. 2002; Washington University Political Science Department, March 2002; University of Wisconsin, LaCrosse, April 2002. "A Movement and a Market: GLBT Economic Strategies for Social Change," University of Wisconsin, LaCrosse, April 2002; Macalester College, April 2002. "Job Gendering: Occupational Choice and the Marriage Market," Research Conference of International Association for Feminist Economics, Ottawa, CA, June 1999. "Tolerance, Taboos, and Gender Identity: The Occupational Distribution of Lesbians and Gay Men," Research Conference of International Association for Feminist Economics, Amsterdam, The Netherlands, June 1998. “The Impact of Affirmative Action on Public-Sector Employment in California,” ASSA Meetings, 1997. “Tolerance or Taboos: Occupational Differences by Sexual Orientation,” presented at American Economic Association Meetings, Jan. 1996, and American Psychological Association convention in Toronto, August 1996. "A Race, Ethnicity, and Gender Analysis of the 1990-91 Recession," ASSA Meetings 1995. "Choices and Chances: Is Coming Out at Work a Rational Choice?" The Sixth North American Lesbian, Gay, and Bisexual Studies Conference, University of Iowa, November 18, 1994. "Civil Rights and Civilized Research: Constructing a Sexual Orientation Policy Based on the Evidence," Association for Public Policy Analysis and Management Research Conference, Oct. 27, 1994

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"Where the Jobs Went in the 1990-91 Downturn," National Conference on Race Relations and Civil Rights in the Post Reagan-Bush Era, The Roy Wilkins Center, Humphrey Institute, University of Minnesota, October 1994. "Lesbian and Gay Campus Organizing for Domestic Partner Benefits," The American Political Science Association meeting, Sept. 1994. Panelist, "Developing Lesbian/Gay Studies in Economics," ASSA Meetings, 1994. "The Rainbow at Work: Differences in the Economic Status of Women Workers in the United States," presented at the 5th International Interdisciplinary Congress on Women, 1993. "The Economic Well-Being of Lesbians and Gay Men: Pride and Prejudice," December 1992, presented at 1993 ASSA Meetings. "Affirmative Action in a Changing Legal and Economic Environment," revised, December 1992, presented at 1993 ASSA Meetings. "The Effects of Structural Change on the Race and Gender Distribution of Employment," with Rhonda M. Williams, presented at Eastern Economic Association Meeting, 1992. "Changes in Racial Inequality Among Women: Evidence from Unemployment Rates," presented at AEA Meetings, 1992. "Labor Market Discrimination--Economic and Legal Issues for Gay Men and Lesbians," presented at AEA Meetings, 1992. "Rising Black Unemployment: Changes in Job Stability or in Employability?" presented at National Economic Assoc., 1992. "Rising Black Unemployment and the Role of Affirmative Action Policy," presented at APPAM Research Conference, Oct. 1990. INVITED KEYNOTES AND OTHER PRESENTATIONS (Selected): Invited Keynote Speaker, “Workshop on Comparative Experiences in Protection of LGBT Rights in the Family and Marriage Relations,” hosted by Ministry of Justice, Viet Nam, and UNDP, December 20-21, 2012, Hanoi. “When Gay People Get Married,” London School of Economics and Politics, Keynote for LSE Pride Week, November 2012. Keynote speaker at Roundtable, "Taking Poverty Out of the Closet," Horizons Foundation, San Francisco, March 19, 2012. “The Impact of Allowing Same-sex Couples to Marry,” Australian National Univ College of Law. 3/1/2012; Gough Whitlam Institute, Sydney Australia 3/2/2012. Australian Parliament, Canberra, "The Impact of Allowing Same-Sex Couples to Marry," 2/27/12. Keynote lunch speaker, E-Marriage Symposium, Michigan State University Law School, “My Marriage, No Marriage,” November 11, 2011. “When Gay People Get Married,” University of North Carolina Chapel Hill, 10/13/11. IAFFE, 2011, Hangzhou China: Roundtable on Sexuality and the Economy, Roundtable on Enhancing IAFFE’s Vision in the 21st Century. June, 2011. Panelist, “Same-Sex Marriage: Past, Present and Future,” M. V. Lee Badgett, David Boies, and Nancy Cott, UCLA History Department, Feb. 24, 2011. Janus Lecture, Debate on same-sex marriage, Brown University, Feb. 17, 2011. Panelist, "Queering Where We Work: Bridging LGBTQ Policy Advocacy, Front-Line Activism, and Research," University of M. V. Lee Badgett--page 13

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Toronto, Rotman School of Management, Nov. 5, 2010. “The Economic Value of Marriage,” Drake Constitutional Law Center's Annual Symposium, The Same-Sex Marriage Divide, Drake University, Iowa. 4/10/2010. Keynote address, “Out and Equal in the Workplace: Sexual Orientation Discrimination, Univ of Pittsburgh School of Law. 3/18/2010. “When Gay People Get Married”: Portland State Univ Portland, OR. 4/23/2010; Univ of Chicago Alumni Weekend, Chicago, IL; Univ of Chicago. 6/3/2010; Kennesaw St Univ, Atlanta, GA. 3/24/2010; Andrew Young School of Public Affairs; Georgia State Univ. 3/25/2010; and many other bookstores and locations. "Challenges for LGBT Workers" Department of Labor at invitation of Assistant Secretary for Policy. 1/29/2010 Keynote Address on Sexual orientation and economics, University of Illinois-Chicago, Sept. 30, 2009. Multiple talks, University of Minnesota, Duluth, April 2009. “On the Road to Equality: Health Care for LGBT Americans,” Opening address, 2007 National LGBT Health Expo, Washington, DC, November 2, 2007. “Does diversity make a difference? A view from the marketplace.” Keynote Address, 7th annual international conference on diversity in organizations, communities, and nations, Amsterdam, The Netherlands. 7/1/2007 “Not-So-Gay Divorce: A Reason for Marriage,” Gay Divorce Conference, King’s College London, May 20, 2006. “Thinking for Change/Changing our Thinking: Effective Research in GLBT Policy Debates”, Presidential Invited Address, Division 44, American Psychological Association Convention, August 2005. “Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men,” University of Toronto, March 16-17, 2005. Panelist, “Aging in the Gay Community,” American Association of Retired Persons, June 2000. “Money and Our Discontents,” Keynote speech, Smart Women/Smart Money conference by the Astraea Foundation. Nov. 1999. "Homo Economics: The Myth of Gay Affluence and Other Tall Tales," University of Connecticut, March 1999; American University, October 1999. Same-Sex Couples and Public Policy, panel member, University of Maryland, College Park, October 1999. "A Bridge to the Future or the Road to Nowhere? Respectability and Lesbian and Gay Think Tanks," Remarks prepared for the Politics of Respectability Conference, University of Chicago, April 1999 Panelist, Unifying Anti-Subordination Theories, DePaul University Law School, February 1999. "Lesbians, Gays, and Bisexuals in a Gender Agenda," Roundtable on Feminism and Public Policy, 1998 ASSA Meetings, Chicago, IL. “Economic Issues for Lesbians,” Workshop on Lesbian Health Research Priorities, Institute of Medicine, Board on Neuroscience and Behavioral Health, Washington, DC, October 6, 1997. “Lesbians, Gays, Bisexuals, and Transgenders: Who Gives, How Much, and Why,” OutGiving Conference, Aspen, CO, Sept. 1997; Horizons Foundation and United Way, San Francisco, CA, Oct. 1997; NGLTF Creating Change conference, San Diego, Nov. 1997; Cream City Foundation Milwaukee, WI; Chicago, IL; Boston Foundation, February 1998. “Lesbian and Gay Money: Is There a Gender Gap?” Towson State University, March 1997. Panelist, “Out in the Workplace,” University of Pennsylvania, Feb. 10, 1997.

M. V. Lee Badgett--page 14

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“Workplace Policy Issues for Lesbian, Gay, and Bisexual People,” Gender, Race, Economics, and Public Policy Conference of the New School for Social Research, April 5, 1996. Panelist, “Compensating for Gender, Race, and Class Inequalities: Is Affirmative Action the Means to Social Justice,” A Future of Equality: Feminist Rethinkings of the Affirmative Action and Welfare Debates, Yale University Women’s Center, March 30, 1996. “Equal Pay for Equal Work,” University of Delaware Lavender Scholars Series, March 7, 1996. “Lesbian and Gay Think Tanks,” Center for Lesbian and Gay Studies, CUNY Graduate School, Feb. 9, 1996. Panelist, Affirmative Action in the 21st Century, Chicago United, Feb. 15, 1996. "The Economic Status of Lesbians and Gay Men: Discrimination, Data, and Debate," Bureau of Labor Statistics, U.S. Department of Labor, June 15, 1995; Institution for Social and Policy Studies, Yale University, Sept. 1995; University of Massachusetts, Boston, May 1996. Panelist, “Gay Money: Power of the Purse,” National Lesbian & Gay Journalists Association, Oct. 19, 1995. Panelist, Domestic Partner Benefits and Other Gay Rights Policy Issues: Creating Change on Campus, American Association of University Professors, June 9, 1995. Prepared testimony, Select Education and Civil Rights Subcommittee, Committee on Education and Labor, U. S. House of Representatives, Testimony on the 30th Anniversary of the Equal Pay Act, 1994. (Hearing cancelled at the last minute.) "Economic Evidence of Sexual Orientation Discrimination," Gay, Lesbian, and Bisexual Studies Faculty Seminars, Univ. of Massachusetts, Amherst, Dept. of Economics and Program for Gay, Lesbian, and Bisexual Concerns, May 11, 1994. "The Economics of Being Lesbian, Gay, or Bisexual: Pride, Prejudice and Politics," Brown Bag Series in Gay, Lesbian, and Bisexual Studies, University of Massachusetts, Amherst, May 11, 1994. "Thinking Homo/Economically," conference presentation, Center for Lesbian and Gay Studies, CUNY Graduate School, May 7, 1994. "Lesbian and Gay Campus Organizing for Domestic Partner Benefits," Annual Conference, The National Center for the Study of Collective Bargaining in Higher Education and the Professions, Baruch College, CUNY, April 19, 1994. Also presented at the American Political Science Association meeting, Sept. 1994. "The Changing Contours of Discrimination: Race, Gender, and Structural Economic Change," presented at University of Michigan, School of Social Work, Profs. Mary Corcoran and Sheldon Danziger, March, 15, 1994. "Redefining Families: Research and Policy," American Political Science Association meetings, Washington, D.C., Sept. 3, 1993. "A Cost/Benefit Analysis of Coming Out," presented at OUT Magazine press conference, broadcast on CSPAN, April 21, 1993. GRANTS: Five Colleges Inc: $178,000 (from Mellon Foundation)--Bridging the Liberal Arts and Professional Training in Public Policy & Social Innovation; $95,000--Social Justice Public Policy Practitioners-in-Residence Ford Foundation, 2003-2006 (2 grants), Data on Sexual Orientation (total $600,000) 1995 Wayne F. Placek Award, American Psychological Foundation, “The Impact of Attitudes on Lesbian and Gay Male Earnings and Occupations.” ($15,000) The Aspen Institute, Nonprofit Sector Research Fund, “Lesbian, Gay, and Bisexual Giving and Volunteering,” 1996. ($40,000) 2002 Wayne F. Placek Award, American Psychological Foundation, “Health Insurance Inequality for Gay, Lesbian, and Bisexual People,” with Michael A. Ash. PANELS AND COMMITTEES: Chair, Diversity Committee, International Association for Feminist Economics, 2011-present. M. V. Lee Badgett--page 15

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Association for Public Policy Analysis and Management (APPAM): Institutional representative, 2007-present and Vice Chair 2011-12; Program Committee for 2010 conference. Nat'l Association of Schools of Public Administration and Affairs (NASPAA): Leslie Whittington Teaching Award Committee, 2010. Advisory Committee for “Real Families, Real Facts: Research Symposiums on LGBT-headed Families,” Family Pride, held May 2006. Planning committee and facilitator for research meeting held at Out & Equal Workplace conference, Sept. 2005. Reviewer, Wayne F. Placek Award, American Psychological Foundation Women's Funding Network, Lesbian Donor Research Project Advisory Committee, 1997-98 Visiting Lecturer and co-designer, Traveling Feminist Economics Ph.D. Course, Univ. of Minnesota, 1997-98 FELLOWSHIPS AND HONORS: Samuel F. Conti Faculty Fellowship, University of Massachusetts Amherst, 2013-2014. “When Gay People Get Married,” Distinguished Book Award, American Psychological Association, Division 44, 2010; chosen for Diversity Book Club, Kennesaw State University, 2010. Distinguished Faculty Lecture, University of Massachusetts Amherst, Nov. 9. 2009, and Chancellor’s Medal (the highest honor bestowed on individuals for exemplary and extraordinary service to the campus) Named one of twenty most influential lesbians in academia, Curve Magazine, 2008 Rockwood Leadership Fellow in Lesbian, Gay, Bisexual, and Transgender Community & Advocacy, 2008-09 2005 Dukeminier Award for Best Sexual Orientation Law Review Article College Outstanding Teacher Award, Social and Behavioral Sciences, University of Massachusetts, 2000-2001 Out 100, Out Magazine, 2001. One of Our Best and Brightest Activists, The Advocate, 2000. Lilly Fellow, Center for Teaching, University of Massachusetts, Amherst, 1999-2000 Certificate of Appreciation, Stonewall Center, 1999. Certificate of Recognition, University of Maryland at College Park Diversity Initiative, 1994-95 Graduate Opportunity Fellowship, 1985-86, UC Berkeley A.B. with General Honors, University of Chicago Maroon Key Society, University of Chicago Abram L. Harris Prize, 1978-79, 1979-80, University of Chicago AFFILIATIONS Association for Public Policy Analysis & Mgmt. American Economic Association Editorial Board (and past Associate Editor), Feminist Economics International Association for Feminist Economics (past board member) Editorial board, Sexuality Research and Social Policy ; Sexuality & the Law (Social Science Research Network); Law and Social Inquiry REFEREE: Quarterly Journal of Economics, Industrial Relations, Journal of Human Resources, Feminist Economics, Journal of Policy Analysis & Mgmt., Amer. Sociological Review, Review of Social Economy, Review of Economics and Statistics, Columbia University Press, National Science Foundation, Qualitative Sociology, Social Problems, Social Forces, University of Wisconsin Press, Journal of Population Economics, Routledge Press, Princeton University Press, Industrial and Labor Relations Review, Demography, American Journal of Sociology, Contemporary Economic Policy, Journal of Marriage and the Family, Cambridge Journal of Economics, Social Forces, Health Affairs, and others

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Exhibit B

App. 000043 - Pls.' SJ Opp'n, Kitchen v. Herbert

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Bibliography Ash, Michael, and M. V. Lee Badgett, “Separate and Unequal: The Effect of Unequal Access to Employment-Based Health Insurance on Gay, Lesbian, and Bisexual People,” Contemporary Economic Policy, 24: 582-599, 2006. Badgett, M. V. Lee, Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men, University of Chicago Press, 2001. Badgett, M. V. Lee, When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage, New York University Press, 2009. Badgett, M. V. Lee, “The Economic Value of Marriage for Same-sex Couples,” Drake Law Review, Vol. 58, No. 4, 2010, pp. 1081-1116. Badgett, M. V. Lee, “Unequal Taxes on Equal Benefits: The Taxation of Domestic Partner Benefits,” Center for American Progress and Williams Institute, December 2007. Badgett, M. V. Lee, Laura Durso, Angel Kastanis, and Christy Mallory, “The Business Impact of LGBT-Supportive Policies,” Williams Institute, May 2013. Badgett, M. V. Lee, and Jody L. Herman, “Patterns of Relationship Recognition by Same-Sex Couples in the United States,” Williams Institute, November 2011. Becker, Gary, Treatise on the Family, Harvard University Press, Cambridge, 1991. Bernard, Tara Siegel and Ron Lieber, The High Price of Being a Gay Couple, New York Times, Oct. 3, 2009, at Al. Retrieved from http://www.nytimes.com/2009/10/03/yourmoney/03money.html (last accessed Sept. 4, 2012). Boele-Woelki, Katharina, Ian Curry-Sumner, Miranda Jansen, and Wendy Schrama. 2006. Huwelijk of geregistreerd partnerschap? Evaluatie van de wet openstelling huwelijk en de wet geregistreerd partnerschap. Ministerie van Justitie and Universiteit Utrecht. Buchmueller, Thomas and Christopher S. Carpenter, “Disparities in Health Insurance Coverage, Access, and Outcomes for Individuals in Same-Sex Versus Different-Sex Relationships, 2000– 2007,” American Journal of Public Health, Vol. 100, No. 3, March 2010, 489-495 Day, Nancy E., and Patricia Schoenrade, “Staying in the closet versus coming out: Relationships between communication and sexual orientation and work attitudes. Personnel Psychology, 50, 1997, pp. 147-163. DeNavas-Walt, Carmen, Bernadette D. Proctor, and Jessica C. Smith, “Income, Poverty, and Health Insurance Coverage in the United States: 2008,” U.S. Census Bureau, Current Population Reports, P60-236(RV), September 2009. Dinno, Alexis, and Chelsea Whitney. “Same Sex Marriage and the Perceived Assault on Opposite Sex Marriage,” PlosONE, Vol. 8, No. 6, June 2013, pp 1-8.
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Driscoll, Jeanine M., Francis A. Kelley, and Ruth E. Fassinger, “Lesbian identity and disclosure in the workplace: Relation to occupational stress and satisfaction.” Journal of Vocational Behavior, Vol 48, 1996, 229–242. Eggleston, Jonathan, “Does the Legalization of Same-Sex Marriage or Civil Unions Affect Divorce Rates? University of Virginia, July 2011. Ellis, Allan L. and Ellen D. B. Riggle, “The relation of job satisfaction and degree of openness about one's sexual orientation for lesbians and gay men.” Journal of Homosexuality, 30(2), 1995, 75-85. Eskridge, William N. Jr., The Case for Same-Sex Marriage, Free Press, New York, 1996. Eskridge, William N., Jr., and Darren R. Spedale. 2006. Gay marriage: For better or for worse?: What we've learned from the evidence. New York: Oxford University Press. Florida, Richard and Gary J. Gates, “Technology and Tolerance: The Importance of Diversity to High-Tech Growth,” The Brookings Institution Survey Series, Sept. 2001. Folbre, Nancy, “‘Holding Hands at Midnight:’ The Paradox of Caring Labor,” Feminist Economics, Vol. 1, 1995, pp. 73-92. Gates, Gary, “Marriage Equality and the Creative Class,” Williams Institute, 2009. Gates, Gary, M.V. Lee Badgett, Jennifer Macomber, and Kate Chambers, “Adoption and Foster Care by Gay and Lesbian Parents in the United States,” Williams Institute and Urban Institute, March 2007. Griffith, Kristin H., and Michelle R. Hebl, “The disclosure dilemma for gay men and lesbians: “Coming out” at work,” Journal of Applied Psychology, 87(6), 2002, pp. 1191-1199. Naomi G. Goldberg, “The Impact Of Inequality for Same-Sex Partners In Employer-Sponsored Retirement Plans,” Williams Institute, 2009. Goldberg, Naomi, Michael Steinberger, and M.V. Lee Badgett, “The Business Boost from Marriage Equality: Evidence from the Health and Marriage Equality in Massachusetts Survey,” Williams Institute, May 2009. Hadley, Jack, John Holahan, Teresa Coughlin, and Dawn Miller, “Covering the Uninsured In 2008: Current Costs, Sources Of Payment, And Incremental Costs,” Health Affairs, 27, no.5, 2008, pp. w399-w415. Heck, Julia E., Randall L. Sell, and Sherri Sheinfeld Gorin, “Health Care Access Among Individuals Involved in Same-Sex Relationships,” American Journal of Public Health, June 2006; 96(6), pp. 1111-1118. Lofquist, Daphne, Terry Lugaila, Martin O’Connell, and Sarah Feliz, “Households and Families:
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2010,” U.S. Census Bureau, C2010BR-14, April 2012. Retrieved from http://www.census.gov/prod/cen2010/briefs/c2010br-14.pdf (last accessed Sept. 4, 2012). Langbein, Laura, and Mark Yost, “Same-Sex Marriage and Negative Externalities,” Social Science Quarterly, Vol. 90, No. 2, 2009, 292-308. Nelson, Julie A., “Household Economies of Scale in Consumption: Theory and Evidence,” 56 Econometrica 1301, 1988. Pollak, Robert A, “A Transaction Cost Approach to Families and Households,” Journal of Economic Literature, Vol. 23, 1985, pp. 581-608. Ponce, Ninez A., Susan D. Cochran, Jennifer C. Pizer, and Vickie M. Mays, “The Effects of Unequal Access to Health Insurance for Same-Sex Couples in California,” Health Affairs, 2010: 29(8): 1539-1548. Raeburn, Nicole, Changing corporate America from inside out: Lesbian and gay workplace rights, University of Minnesota Press, 2004. Ragins, Belle R., and John M. Cornwell, “Pink triangles: Antecedents and consequences of perceived workplace discrimination against gay and lesbian employees,” Journal of Applied Psychology, 86(6), 2001, pp. 1244-1261. Ramos, Christopher, Naomi G. Goldberg, and M.V. Lee Badgett, “The Effects of Marriage Equality in Massachusetts: A survey of the experiences and impact of marriage on same-sex couples,” Williams Institute, May 2009. Rostosky, Sharon S., and Ellen D. B. Riggle, “‘Out’ at Work: The relation of actor and partner workplace policy and internalized homophobia to disclosure status.” Journal of Counseling Psychology, 49(4), 2002, at pp. 411-419. Tax Foundation. (2013). State and Local General Sales Tax Rates. Retrieved from http://taxfoundation.org/article/state-and-local-sales-tax-rates-2011-2013 U.S. Census Bureau, “Detailed Tables,” 2011. Retrieved from http://www.census.gov/hhes/samesex/files/ss-report-tables.xls (last accessed Sept. 4, 2012). U.S. Census Bureau, “Supplemental Tables,” 2011. Retrieved from http://www.census.gov/hhes/samesex/files/supp-table-AFF.xls (last accessed June 17, 2013). U.S. General Services Administration, “Per Diem Rates Look-Up.”, lasted modified August 30, 2013, accessed September 27, 2013, Available at http://www.gsa.gov/portal/category/100120 Utah Office of Tourism. State of Utah Tourism Profile 2012. Available at http://travel.utah.gov/research_and_planning/documents/2012StateofUtahTourismProfile.pdf Utah Tourism Industry Coalition. State of the Tourism Industry in Utah. (Fall 2012). http://utahtourism.org/wp-content/uploads/2010/01/2012-state-of-tourism-v11.pdf

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The Wedding Report. (2012). Wedding Industry Report-Utah.
https://www.theweddingreport.com/wmdb/index.cfm?action=db.viewdetail&t=s&lc=49&setloc=y.

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Exhibit 2

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JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice) PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 Email: jdavidson@lambdalegal.org tborelli@lambdalegal.org prenn@lambdalegal.org sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050 CARLA CHRISTOFFERSON (pro hac vice) DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071 Email: cchristofferson@omm.com dsestito@omm.com mcristol@omm.com razizi@omm.com Tel: 213.430.6000 | Fax: 213.430.6407 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 Email: kdove@swlaw.com mbute@swlaw.com Tel: 702.784.5200 | Fax: 702.784.5252 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BEVERLY SEVCIK and MARY BARANOVICH; ANTIOCO CARRILLO and THEODORE SMALL; KAREN GOODY and KAREN VIBE; FLETCHER WHITWELL and GREG FLAMER; MIKYLA MILLER and KATRINA MILLER; ADELE TERRANOVA and TARA NEWBERRY; CAREN No. 2:12-CV-00578-RCJ-PAL DECLARATION OF GEORGE CHAUNCEY, PH.D. IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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Appendix – Page 208

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CAFFERATA-JENKINS and FARRELL CAFFERATA-JENKINS; and MEGAN LANZ and SARA GEIGER, Plaintiffs, v. BRIAN SANDOVAL, in his official capacity as Governor of the State of Nevada; DIANA ALBA, in her official capacity as Clerk for Clark County; AMY HARVEY, in her official capacity as Clerk for Washoe County; and ALAN GLOVER, in his official capacity as Clerk-Recorder for Carson City, Defendants

I, George Chauncey, hereby declare and state as follows: Expert Background and Qualifications 1. I am a Professor of History and American Studies and chair of the Department of

History at Yale University, where I have taught since 2006. My testimony will relate to my opinions as an expert in the history of the United States in the twentieth century and gender, homosexuality, sexuality, and civil rights in the United States, with a particular focus on the history of discrimination experienced by gay men and lesbians in the United States. I have actual knowledge of the matters stated in this declaration, and could and would so testify if called as a witness.   2. My background, experience, and publications are summarized in my curriculum

vitae, which is attached as Exhibit A to this declaration. In the past four years, I have testified as an expert – either at trial or through declaration – or been deposed as an expert in Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.), Gill v. Office of Pers. Mgmt., No. 09-10309 (D. Mass.), Commonwealth of Mass. v. U.S. Dep’t of Health and Human Servs., No. 09-11156 (D. Mass.), Windsor v. U.S., No. 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y.), Pedersen v. Office of Personnel Management, No. 3:10-cv-01750-VLB (D. Conn.), Golinski v. Office of Personnel Management, 3:10-cv-0257-JSW (N.D. Cal.), Dragovich v. U.S. Dep’t of the Treasury, CV 4:10-

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01564-CW (N.D. Cal.), Donaldson v. Montana, No. 10-702 (Mont. 1st Jud. Dist. Ct.), and Jackson v. Abercrombie, No. 11-734 (D. Haw.) – all of which involved testimony on topics similar to those discussed below. 3. From 1991 to 2006, I was a Professor of History at the University of Chicago. I

am the author of Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (New York: Basic Books, 1994), which won the Organization of American Historians’ Merle Curti Award for the best book in social history and Frederick Jackson Turner Award for the best first book in any field of history, the Los Angeles Times Book Prize in History, and Lambda Literary Award. I am also the author of Why Marriage? The History Shaping Today’s Debate over Gay Equality (New York: Basic Books, 2004); coeditor of three books and special journal issues, including Hidden From History: Reclaiming the Gay and Lesbian Past (NAL, 1989); and the author of numerous articles, which are listed in my curriculum vitae, attached to this declaration as Exhibit A. 4. In preparing this Declaration, I reviewed the Complaint in this case. I base my

opinions on my own research, experience and publications, the work of other historians and scholars as listed in the attached bibliography (Exhibit B), and the general statutes of a number of states, including Nevada, New York, Connecticut, Vermont, and New Hampshire.  5. I have been retained by counsel for Plaintiffs in this litigation. I am being

compensated at a rate of $400 per hour for preparation of reports or declarations; $450 per hour for time spent preparing for and giving deposition or trial testimony; and $4,000 per day spent preparing for or attending trial. My compensation does not depend on the outcome of this litigation, the opinions I express, or the testimony I provide. Summary of Opinions 6. It is my professional opinion that the historical record, which is outlined below,

demonstrates that gay and lesbian people have been subject to widespread and significant discrimination and hostility in the United States. 7. Through much of the twentieth century, in particular, gay men and lesbians

suffered under the weight of medical theories that treated their desires as a disorder; penal laws
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that condemned their consensual adult sexual behavior as a crime; police practices that suppressed their ability to associate and socialize publicly; censorship codes that prohibited their depiction on the stage, in the movies, and on television; and federal policies and state regulations that discriminated against them on the basis of their homosexual status. These state policies and ideological messages worked together to create and reinforce the belief that gay and lesbian persons comprised an inferior class to be shunned by other Americans. 8. Despite social and legal progress in the past thirty years towards greater

acceptance of homosexuality, gay and lesbian people continue to live with the legacy of the antigay measures enacted in the 1930s, 1940s, and 1950s and the attitudes that motivated those measures. That legacy is evident both in laws that remain on the books and in the many legal protections that have not been enacted. 9. Among the many products of the legacy of discrimination in the twentieth century,

the most conspicuous today include Congress’ repeated failure to enact or even seriously consider federal legislative protections for gay and lesbian people in housing, employment, and public accommodations; the numerous state statutes and constitutional amendments that brand gay men and lesbians as second-class citizens by denying them the right to marry the person they love; and the federal Defense of Marriage Act, which prohibits the federal government from recognizing such a marriage when it does occur. The legacy of discrimination is also evident in the demeaning stereotypes and inflammatory rhetoric used by anti-gay organizations and public officials as they campaign to enact further measures meant to erode gay people’s civil rights and diminish their status as full citizens of the United States – campaigns that are, to this day, very often successful. 10. Today, the limited civil rights enjoyed by gay and lesbian Americans vary

substantially from region to region and are still subject to the vicissitudes of public opinion. Like other minority groups, gay men and lesbians often must rely on judicial decisions to secure equal rights.

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History of Discrimination Against Gay and Lesbian People in the United States Introduction 11. While there is ample evidence that same-sex attraction, love, and intimacy have

persisted across the ages, most historians now agree that the concept of the homosexual and the heterosexual as distinct categories of people emerged only in the late nineteenth century. This concept had profound effects on the regulation of homosexuality. Early American legislators, drawing on their understanding of ancient Judeo-Christian prohibitions against sodomy and “unnatural acts,” penalized a wide range of non-procreative behavior, including many forms of what would now be called homosexual conduct. While these laws prohibited conduct, it was in the twentieth century that governments began to classify and discriminate against certain of their own citizens on the basis of their status or identity as homosexuals.   12. Official, government-sanctioned hostility and discrimination has had a profound

and enduring negative impact on lesbians and gay men in American society. In the 1920s, the State of New York prohibited theaters from staging plays with lesbian or gay characters. Beginning in the 1930s and 1940s, many states prohibited gay people from being served in bars and restaurants. In the 1950s, the federal government banned the employment of homosexuals and insisted that its private contractors ferret out and dismiss their gay employees. It also prohibited gay foreigners from entering the country or securing citizenship. Until the 1960s, all states penalized sexual intimacy between men. Throughout the twentieth century, many municipalities launched police campaigns to suppress gay meeting places, and sought to purge gay civil servants from government employment. 13. Private hostility and discrimination, often encouraged by government officials, has

had a similarly profound and enduring negative effect on lesbians and gay men in American society. Until the 1970s, leading physicians and medical researchers claimed that homosexuality was a pathological condition or disease. In the 1930s, the Hollywood studios enacted a censorship code that for nearly thirty years prohibited the discussion of gay issues or the appearance of gay or lesbian characters in the era’s most powerful communications medium. In the 1940s and 1950s, municipal police officials, state governmental leaders, local newspapers,
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and national magazines justified anti-gay discrimination and the suppression of gay meeting places by fostering frightening stereotypes of homosexuals as child molesters. These stereotypes have had enduring consequences, and continue to inspire public fears and hostility, especially concerning gay teachers and parents. In the 1980s, the early press coverage of AIDS reinforced the view that homosexuals were diseased and threatened other Americans. In the 1990s, many clergy condemned (and still condemn) homosexuality as sinful. The Southern Baptist Convention, for example, called for a boycott of all Disney products because Disney offered domestic partnership benefits to its employees and Disneyland organized gay theme nights. Also, some anti-gay groups threatened to organize boycotts against the sponsors of network television shows which included gay characters. 14. Historically, anti-gay measures often were enacted or strengthened in response to

periods of relative growth in the visibility or tolerance of gay people. For example, the effervescence and visibility of gay life in the 1920s contributed to the backlash gay and lesbian people endured during the Great Depression. The increased visibility of gay men and lesbians during the Second World War helped precipitate a second wave of hostility in the late 1940s and 1950s. The dramatically increased visibility of gay people in the 1970s and 1980s, and their success in persuading some state and local governments to include sexual orientation in their antidiscrimination laws, resulted in a wave of referenda and initiatives between 1977 and the early 1990s that overturned such laws and/or prohibited the enactment of others. 15. In recent decades, and especially in the last twenty years, many (though not all) of

these discriminatory measures were repealed, but considerable discrimination and animosity persisted. Given the long history of campaigns demonizing homosexuals as child molesters, it is unsurprising that in 1977 – the year Anita Bryant launched her “Save Our Children” campaign – two-thirds of Americans told pollsters they objected to lesbians or gay men being hired as elementary school teachers. By 1992, after fifteen years of extensive public discussion of this and other gay issues, opinion had shifted, but half of those parents polled still rejected the idea of their child having a gay elementary school teacher. By 2002, about forty percent of Americans still

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were unwilling to have elementary schools employ gay teachers, and one-third of them found gay high school teachers unacceptable. 16. When marriage emerged as the new flashpoint in debates over civil rights for gay

men and lesbians almost two decades ago, the debate was shaped by the legacy of anti-gay policies and attitudes. Many Americans initially responded to the idea that gay and lesbian couples should be allowed to marry with the same misgivings and even hostility with which they once greeted the idea of gay teachers or gay characters on television sitcoms. Opponents of marriage equality mobilized some of the most enduring anti-gay stereotypes to heighten public apprehension. For instance, during the 2008 campaign over Proposition 8 – the California ballot initiative that revoked the marriage rights of gay men and lesbians that the California Supreme Court had recognized under the state constitution – several television commercials aired by the supporters of Proposition 8 warned that marriage equality might encourage children to become homosexuals themselves. The recent campaign to repeal marriage equality in Maine used the same tactics, including recycling commercials and scripts from the Proposition 8 campaign because they had been so effective in California. Likewise, material from the Nevada campaign to amend the state constitution to bar marriage for same-sex couples stated “Let’s not experiment with Nevada’s children.” The approval of Proposition 8 in California, Question 1 in Maine, Question 2 in Nevada, and similar laws and constitutional amendments in a total of forty-one states indicates the enduring influence of anti-gay hostility and the persistence of ideas about the inequality of gay people and their relationships. The civil rights enjoyed by gay and lesbian people throughout the United States continue to be subject to the vicissitudes of public opinion in an ever-changing social, political, and cultural landscape. 17. At several critical junctures, a handful of state and federal courts have been the

only authorities willing to defend the rights of gay people against the antipathy of the majority. In the 1950s and 1960s, at a time when overwhelming public sentiment supported the criminalization of gay bars and other meeting places, state courts in California and New York ruled that gay people had the right to assemble. In 1954, the United States Supreme Court ruled that the United States Post Office could not ban a gay political magazine from the mails. In the
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1990s, when voters in cities and states across the country were voting to ban states and local municipalities from enacting anti-discrimination protections for gay people, the Supreme Court, in Romer v. Evans, struck down a Colorado constitutional amendment that withdrew from gay men, lesbians, and bisexuals, but no others, specific legal protection from discrimination. Sometimes quickly and sometimes more slowly, these decisions played a critical role in shifts in public opinion. II. The Roots of Anti-Gay Discrimination 18. The first American laws against homosexual conduct were rooted in the earliest

English settlers’ understanding of the religious and secular traditions that prohibited sodomy, and they reflected the ambiguity of those traditions. Although sodomy included some forms of what today would be called homosexual conduct, medieval theologians did not use sodomy to refer systematically and exclusively to such conduct; for example, they rarely understood sodomy to include oral sex or sex between women. 19. The English Reformation Parliament of 1533 turned the religious injunction

against sodomy into the secular crime of buggery when it made “the detestable and abominable vice of buggery committed with mankind or beast” punishable by death. The English courts interpreted this to apply to sexual intercourse between a human and an animal and anal intercourse between a man and woman or between two men. 20. Colonial American statutes drew on these religious and secular traditions and

shared their imprecision in the definition of the offense. Variously defining the crime as (the religious) sodomy or (the secular) buggery, they generally proscribed anal sex between men and men, men and women, and humans and animals, but their details and their rationales varied. The southern colonies generally adopted the English law against buggery, while the Puritan New England colonies usually drew on religious traditions to penalize many forms of “carnall knowledge,” including adultery, fornication, sex with prepubescent girls, and “men lying with men.” Puritan clergy in the New England colonies were especially vigorous in their denunciation of sodomitical sins as contrary to God’s will, but their condemnation was motivated by the pressing need to increase the population and to secure the stability of the family, as well as
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their reading of scripture. In the Massachusetts Bay Colony, sodomy was prohibited in 1641 by a statute taken directly from Leviticus: “If any man lyeth with mankinde as he lyeth with a woeman, both of them have committed abhomination, they both shall surely be put to death.” Although several men were executed for sodomy, the colonies rarely prosecuted men for this offense, for reasons that still are not entirely clear to historians. III. Modern American History: 1890-1940 21. Prosecutions for sodomy and related offenses increased dramatically in the late

nineteenth and early twentieth centuries as a result of the emergence of the idea of the homosexual as a distinct category of person, the expansion of laws penalizing homosexual conduct, and the growing influence of religiously-inspired moral reform societies, which insisted on criminal prosecutions. In 1914, for example, the Supreme Court of Nevada held that the state’s statute criminalizing “infamous crimes against nature” encompassed oral as well as anal intercourse, each being an “‘abominable crime not fit to be named among Christians.’” In re Benites, 37 Nev. 145, 149 (1914). 22. These types of prosecutions continued to penalize people on the basis of their

homosexual conduct rather than their identity as homosexuals. Current historical research suggests that the concept of the homosexual as a distinct category of person developed as recently as the late nineteenth century. The word “homosexual” appeared for the first time in a German pamphlet in 1868, and was introduced to the American lexicon only in 1892. Between the 1920s and 1950s, the government, drawing on long traditions of hostility to same-sex conduct and responding both to new conceptions of the homosexual as an individual and to the growing visibility of those individuals, began to classify and discriminate against certain of its citizens on the basis of their status or identity as homosexuals. This discrimination reached remarkable, and still largely unrecognized, proportions. 23. The dramatic growth of American cities in the late nineteenth century permitted

lesbians and gay men to develop a more complex and extensive collective life than was possible in small towns and rural areas. While everyone was likely to know everyone else’s business in small towns, the size, complexity, and relative anonymity of cities made it easier for gay people
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(and other nonconformists) to forge a collective life with people like themselves, away from the eyes of hostile outsiders. The early history of the migration of gay people to the relative freedom of the cities is little understood, but it seems to have increased in the early twentieth century, at about the same time as growing numbers of African Americans fled the small towns of the Jim Crow South for the relative freedom of northern cities. Like African Americans, gay people, both black and white, found that the relative freedom of city life was tempered by continuing hostility and discrimination. 24. The emergence of gay and lesbian communities described in this declaration took

place in varying degrees in every American city studied by historians. Because the field of lesbian and gay history remains relatively young in 2012 and has been hampered by the legacy of censorship described below, historians still know most about the history of such communities in major metropolitan centers such as New York, Chicago, San Francisco, and Los Angeles, and they will therefore loom large in the history that follows. However, recent studies of the gay history of smaller cities and communities, ranging from Buffalo, New York, and Portland, Oregon, to Jackson, Mississippi, and its surrounding rural areas, both confirm the broad outlines of the history described here and reveal regional variations in that history. Important recent historical studies of the development of federal and military policies concerning homosexuality and gay citizens have documented discriminatory laws and policies that had nationwide effects. 25. New York City provides one of the best documented examples of the emergence

of a distinctive gay world in the early twentieth century. By the 1910s, New York’s “gay world” included gay residential and commercial enclaves in several immigrant, African American, and bohemian neighborhoods; widely publicized dances and other social events; and a host of commercial establishments where gay people gathered, ranging from saloons, speakeasies, and bars to cheap cafeterias and elegant restaurants. In the 1920s and early 1930s, gay writers and performers produced a flurry of gay literature and theater. Some gay people were involved in long-term relationships they called marriages. Most remained very careful to conceal their homosexuality from non-gay associates, though, for fear of losing their jobs, homes, and respect.

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26.

Many Americans responded to the growing visibility of gay life with fascination

and sympathy, regarding it as simply one more sign of the growing complexity and freedom from tradition of a burgeoning metropolitan culture. Popular fascination with gay culture reached a crescendo during the Prohibition Era (or Jazz Age), when lesbians ran some of the most popular tearooms and cafes in bohemian neighborhoods such as New York’s Greenwich Village and Chicago’s Towertown. That said, the poor, immigrant, African American, and bohemian neighborhoods where gay life became most visible were regarded as the underside of city life by “respectable society.” A. Hostile Religious and Medical Views Prompted the Escalation of Anti-Gay Policing in the Early Twentieth Century 27. Other Americans regarded the growing visibility of lesbian and gay life with

dread. Hostility to homosexuals sometimes was motivated by an underlying uneasiness about the dramatic changes underway in gender roles at the turn of the last century. In this era – indeed until 1973 – homosexuality was classified as a disease, defect, or disorder. Conservative physicians initially argued that the homosexual (or “sexual invert”) was characterized as much by his or her violation of conventional gender roles as by specifically sexual interests. At a time when many doctors argued that women should be barred from most jobs because employment would interfere with their ability to bear children, numerous doctors identified suffragists, women entering the professions, and other women challenging the limits placed on their sex as victims of a medical disorder. Thus, doctors explained that “the female possessed of masculine ideas of independence” was a “degenerate” and that “a decided taste and tolerance for cigars, * * * [the] dislike and incapacity for needlework * * * and some capacity for athletics” were all signs of female “sexual inversion.” Similarly, another doctor thought it significant that a male “pervert” “never smoked and never married; [and] was entirely averse to outdoor games.” 28. Such views about gender roles lost their credibility once public opinion had come

to accept significant changes in women’s roles in the workplace and political sphere, but doctors continued for several more decades to identify homosexuality per se as a “disease,” “mental defect,” “disorder,” or “degeneration.” For generations, such hostile medical pronouncements
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provided a powerful source of legitimation to anti-homosexual sentiment, just as medical science previously had legitimized widely held (and subsequently discarded) beliefs about male superiority and white racial superiority. The medical profession’s classification of homosexuality as a defect or disorder also helped spur and legitimate anti-gay law enforcement activity throughout the country. 29. Religiously-inspired hostility to homosexuality also inspired an escalation in anti-

gay policing. In the late nineteenth century, native-born Protestants organized numerous “antivice” societies to suppress what they regarded as the sexual immorality and social disorder of the nation’s burgeoning Catholic and Jewish immigrant neighborhoods. Although these organizations focused on female prostitution and what they regarded as the weakening of moral strictures governing relations between men and women, they also opposed the growing visibility of homosexuality, which they regarded as a particularly egregious sign of the loosening of social controls on sexual expression under urban conditions. They encouraged the police to step up harassment of gay life as one more part of their campaigns to shut down dance halls and movie theaters, prohibit the consumption of alcohol and the use of contraceptives, dissuade restaurants from serving an interracial mix of customers, and otherwise impose their vision of the proper social order and sexual morality. In New York City in the 1910s and 1920s, for instance, the Society for the Suppression of Vice (also known as the Comstock Society) worked closely with the police to arrest several hundred men for homosexual conduct, and also participated in a raid on a lesbian-run café and encouraged the deportation of the café’s owner. In Massachusetts, the Watch and Ward Society, established as the New England Society for the Suppression of Vice, conducted surveillance on virtually all the popular gay bars and gathering places of the time. 30. As a result of the pressure from Protestant moral reform organizations, municipal

police forces began using misdemeanor charges, such as disorderly conduct, vagrancy, lewdness, loitering, and so forth to harass homosexuals. These state misdemeanor or municipal offense laws, which carried fewer procedural protections than felony sodomy charges, allowed further harassment of individuals engaged in same-sex intimacy. In some cases, state officials tailored these laws to strengthen the legal regulation of homosexuals. For example, in 1923, the New
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York State legislature specified for the first time that a man’s “frequent[ing] or loiter[ing] about any public place soliciting men for the purpose of committing a crime against nature or other lewdness” was a form of disorderly conduct. Many more men were arrested and prosecuted under this misdemeanor charge than for sodomy. Between 1923 and 1966, when Mayor John Lindsay ordered the police to stop using entrapment to secure arrests of gay men, there were more than 50,000 arrests on this charge in New York City alone. 31. The social marginalization of gay men and lesbians gave both the police and the

public even broader informal authority to harass them. The threat of violence and verbal harassment deterred many gay people from doing anything that might reveal their homosexuality in public. Gay people knew that anyone discovered to be homosexual risked the loss of livelihood and social respect, so most gay people were careful to lead a double life, hiding their homosexuality from their heterosexual employers and other associates. B. 32. Censorship The growing visibility of lesbian and gay life in the early twentieth century

precipitated censorship campaigns designed to curtail gay people’s freedom of speech and the freedom of all Americans to discuss gay issues. 33. The earliest gay activists fell victim to such campaigns. In 1924, when the police

learned of the country’s earliest known gay political group, which had been established by a postal worker in Chicago, they raided his home and seized his group’s files and membership list. After the raid, the group ceased publication of its short-lived magazine, Friendship and Freedom. In the 1910s and 1920s, a handful of plays included lesbian and gay characters or addressed homosexual themes. But in 1927, after “The Captive,” a serious drama exploring lesbianism, opened on Broadway to critical acclaim, New York State passed a “padlock law” that threatened to shut down for a year any theater that staged a play with lesbian or gay characters. Given Broadway’s national importance as a staging ground for new plays, this law effectively censored American theater for a generation. 34. Theater censorship occurred in other cities in addition to New York. In the early

twentieth century, Boston had a particularly strict culture of “moral purity” censorship, and the
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phrase “Banned in Boston” was familiar to people throughout the country. In 1935, for instance, Boston Mayor Frederick W. Mansfield banned Lillian Hellman’s “The Children’s Hour,” a play with lesbian themes. Mansfield explained his decision to the press by asserting that the play “showed moral perversion, the unnatural appetite of two women for each other.” 35. Such censorship had even wider-reaching effects when it spread to the movies. A

censorship movement led by religious leaders threatened the Hollywood studios with mass boycotts and restrictive federal legislation if they did not begin censoring their films. Seeking to avoid federal legislation, the studios established a production code (popularly known as “the Hays Code”) that from 1934 on prohibited the inclusion of gay or lesbian characters, discussion of homosexual issues, or even the “inference” of “sex perversion” in Hollywood films. This censorship code remained in effect for some thirty years and effectively prohibited discussion of homosexuality in a powerful communications medium. This censorship stymied and delayed democratic debate about homosexuality for more than a generation. C. The Great Depression and the Curtailment of Gay People’s Freedom of Association 36. In the early years of the Great Depression, restrictions on gay life intensified. By

depriving millions of men of their role as breadwinners, the Depression transformed alreadyexisting anxiety over gender roles into a crisis in gender and family relations. Federal, state, and local governments responded to this perceived crisis with policies that directly affected women and gay people. New Deal public works projects, for instance, which offered jobs only to male heads of households, were designed in part to restore men’s status in their families and larger society, even when this meant limiting women’s economic opportunities. 37. The apparent fragility of the family and gender arrangements made the visibility of

gay life seem more threatening to many people, especially given the long-standing representation of gay men and lesbians as gender deviants. After a generation in which gay life had been relatively visible and integrated into urban public life, restrictions on gay life increased. Gay people were forced into hiding by new laws that pushed gay people out of restaurants and bars, as well as off the stage and silver screen.
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38.

New regulations curtailed gay people’s freedom of association. In New York

State, for instance, the State Liquor Authority, established after the repeal of Prohibition in 1933, issued regulations prohibiting bars, restaurants, cabarets, and other establishments with liquor licenses from employing or serving homosexuals or even allowing them to congregate on their premises. The Authority’s rationale was that the mere presence of homosexuals made an establishment “disorderly,” and when the courts rejected that argument, the Authority began using evidence of unconventional gender behavior or homosexual solicitation gathered by plainclothes investigators to provide proof of a bar’s disorderly character. Hundreds of bars were closed for this reason in the next thirty years in New York City alone. 39. Similar regulations were introduced around the country in subsequent years. In

California in the 1950s, notes historian Nan Alamilla Boyd, the Alcoholic Beverage Control Board “collapsed the difference between homosexual status (a state of being) and conduct (behavior) and suggested that any behavior that signified homosexual status could be construed as an illegal act. Simple acts such as random touching, mannish attire (in the case of lesbians), limp wrists, high-pitched voices, and/or tight clothing (in the case of gay men) became evidence of a bar’s dubious character” and grounds for closing it. IV. Modern American History: World War II 40. Changes in the policies of the Armed Forces of the United States during the

Second World War both reflected and expanded the government’s growing campaign of classifying and discriminating against gay citizens. The military had long made sodomy a criminal offense (and, indeed, it continues to do so). But the Second World War marked the first time the military moved beyond criminalizing homosexual conduct to develop policies that systematically endeavored to exclude personnel on the basis of their identity as homosexuals. All of the branches of the armed forces put in place screening mechanisms designed to ferret out homosexuals during the induction process. Thousands of men and women were kept from serving their country, and often faced public opprobrium as a result. Notwithstanding the new prohibition, many gay men and lesbians served in the armed forces in the Second World War, but they had to be careful to whom they disclosed their sexual orientation.
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41.

Across the country, notwithstanding legal restrictions, the number of lesbian and

gay bars and other meeting places increased during the war years. Military authorities responded to the growth in the number of gay meeting places by collaborating with civil authorities to close them or at least keep servicemen from visiting them. The Army and the Navy created a joint Disciplinary Control Board that worked together with state liquor control agents and municipal police forces to identify and police bars and night clubs, including almost one hundred in San Francisco alone, with the intent of harassing and suspending the licenses of those that served a gay clientele. Military and civilian police also cooperated in anti-vice raids against gay bars and other meeting places. Servicemen who were caught in these raids risked being discharged, and several thousand patriotic Americans who honorably served to defend their country were not honorably discharged solely because of their gay or lesbian identity. 42. Following the war, the Veterans Administration denied GI Bill benefits to soldiers

who had received undesirable discharges. Eventually, most other groups of soldiers with undesirable discharges had their benefits restored, but the Veterans Administration steadfastly refused to restore them to homosexuals. This meant that gay veterans – members of the “Greatest Generation” – who had risked their lives for their country before being discharged were denied the educational, housing, and readjustment allowances provided to millions of their peers. V. Modern American History: Post-WWII Period A. 43. Government Policies in the McCarthy Era Even the stepped-up policing of gay life in the 1930s and 1940s did not equal the

scale of discrimination faced by gay men and lesbians in the generation following the Second World War. The persecution of gay men and lesbians dramatically increased at every level of government after the war. 44. In 1950, following Senator Joseph McCarthy’s denunciation of the employment of

gay persons in the State Department, the Senate conducted a special investigation into “the employment of homosexuals and other sex perverts in government.” The Senate Committee recommended excluding gay men and lesbians from all government service, civilian as well as military. To support this recommendation, the Committee argued that homosexual acts violated
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the law, and it gave its imprimatur to the prejudice that “those who engage in overt acts of perversion lack the emotional stability of normal persons” and that homosexuals “constitute security risks.” 45. The Committee also portrayed homosexuals as predators: “[T]he presence of a sex

pervert in a Government agency tends to have a corrosive influence on his fellow employees. These perverts will frequently attempt to entice normal individuals to engage in perverted practices. This is particularly true in the case of young and impressionable people who might come under the influence of a pervert. Government officials have the responsibility of keeping this type of corrosive influence out of the agencies under their control. . . . One homosexual can pollute a Government office.” 46. The Senate investigation and report were only one part of a massive anti-

homosexual campaign launched by the federal government after the war. The Senate Committee reported that “[a] spot check of the records of the Civil Service Commission indicates that between January 1, 1947, and August 1, 1950, approximately 1,700 applicants for Federal positions were denied employment because they had a record of homosexuality or other sex perversion.” In 1953, President Eisenhower issued an executive order requiring the discharge of homosexual employees from federal employment, civilian or military. Thousands of men and women were discharged or forced to resign from civilian and military positions because they were suspected of being gay or lesbian. At the height of the McCarthy era, the U.S. State Department discharged more homosexuals than communists. The government’s purge of its gay employees prompted the founding of some of the earliest gay rights organizations. Frank Kameny, for one, founded the first gay rights group in Washington, D.C. after he was dismissed from his job as a government astronomer for being homosexual in 1957. 47. President Eisenhower’s executive order prohibiting federal employment for

homosexuals also required defense contractors and other private corporations with federal contracts to ferret out and discharge their homosexual employees. Many other private employers without federal contracts adopted the federal government’s policy by refusing to hire gay people. Furthermore, the FBI initiated a widespread system of surveillance to enforce the executive order.
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As the historian John D’Emilio has noted, “The FBI sought out friendly vice squad officers who supplied arrest records on morals charges, regardless of whether convictions had ensued. Regional FBI officers gathered data on gay bars, compiled lists of other places frequented by homosexuals, and clipped press articles that provided information about the gay world. . . . Federal investigators engaged in more than fact-finding; they also exhibited considerable zeal in using information they collected.” 48. Two years after the Senate Committee recommended that homosexuals be purged

from government employment, Congress signaled its conviction that homosexuals had no place in American society in the most palpable way possible: by denying them entry into the country. In 1952, Congress prohibited homosexuals (whom it called “psychopaths”) from entering the country, much as it previously had prohibited immigration from Asia and curtailed the immigration of Jews and Catholics from eastern and southern Europe. In the case of homosexuals, the prohibition extended beyond people seeking long-term residency or citizenship; a generation of foreign visitors applying for mere tourist visas had to sign statements swearing they were not homosexual before they could make even the briefest trip to the United States. 49. Many state and local governments followed the federal government’s lead in

seeking to ferret out and discharge their homosexual employees. As a result of these official policies, countless state employees, teachers, hospital workers, and others lost their jobs. Beginning in 1958, for instance, the Florida Legislative Investigation Committee, which had been established by the legislature in 1956 to investigate and discredit civil rights activists, turned its attention to homosexuals working in the state’s universities and public schools. Its initial investigation of the University of Florida resulted in the dismissal of fourteen faculty and staff members, and in the next five years it interrogated some 320 suspected gay men and lesbians. It “pressured countless others into relinquishing their teaching positions, and had many students quietly removed from state universities.” Its 1959 report to the legislature called the extent of homosexual activity in the state’s school system “absolutely appalling.” In addition, in a wellpublicized 1949 case in Massachusetts, Dr. Miriam Van Waters, long-time superintendent of the Women’s Reformatory at Framingham, was dismissed by the Commissioner of Corrections
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because she had either not known or had known and had not prevented “an unwholesome relationship” that “existed between inmates of the Reformatory,” which had “resulted in ‘crushes’, ‘courtships’, and homosexual practises [sic] among the inmates.” She was then forced to defend her policies in public hearings held by a Massachusetts house committee over several months. 50. During this period, both federal and local agencies sought to curtail gay people’s

freedom of speech and the freedom of all people to discuss homosexuality. In 1954, postal officials in Los Angeles banned an issue of the first gay political magazine, ONE, from the mails, a ban overturned by the Supreme Court in 1958. In some cities the police continued to shut down newsstands that dared to carry it. In 1957, San Francisco officials arrested Lawrence Ferlinghetti and Shig Murao for publishing and selling “Howl,” a poem by Allen Ginsberg that openly proclaimed his homosexuality. 51. Censorship, government-sanctioned discrimination, and the fear of both made it

difficult for gay people to organize and speak out on their own behalf. Given the severity of antigay policing, for instance, the Mattachine Society, the most significant gay rights organization in the 1950s, repeatedly had to reassure its anxious members that the police would not seize its membership list. In Denver in 1959, a few weeks after Mattachine held its first press conference during a national convention, the police raided the homes of three of its Denver organizers; one lost his job and spent sixty days in jail. B. 52. The Demonization of Homosexuals The official harassment of homosexuals received further legitimization from a

series of press and police campaigns in the 1940s and 1950s that fomented demonic stereotypes of homosexuals as child molesters out to “recruit” the young into their way of life. In response to a series of local panics over sex crimes against women and children, in which homosexuals were almost never identified as the culprits, numerous local newspapers and national magazines claimed that children faced a growing threat from homosexuals. The press warned that, in breaking with social convention to the extent necessary to engage in homosexual behavior, a man had demonstrated the refusal to adjust to social norms that was the hallmark of the psychopath.
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In 1950, Coronet, a popular national magazine, asserted: “Once a man assumes the role of homosexual, he often throws off all moral restraints. . . . Some male sex deviants do not stop with infecting their often-innocent partners: they descend through perversions to other forms of depravity, such as drug addiction, burglary, sadism, and even murder.” 53. The demonization of homosexuals by the press was reinforced by the statements of

public officials. A Special Assistant Attorney General of California claimed in 1949 that “[t]he sex pervert, in his more innocuous form, is too frequently regarded as merely a queer individual who never hurts anyone but himself. All too often we lose sight of the fact that the homosexual is an inveterate seducer of the young of both sexes, and is ever seeking for younger victims.” Detroit’s prosecuting attorney demanded the authority to arrest, examine, and possibly confine indefinitely “anyone who exhibited abnormal sexual behavior, whether or not dangerous.” In 1957, the Hartford Courant reported on comments by a Connecticut judge at a criminal sentencing. The judge endorsed jail terms for homosexuals because his “observation” was that homosexuality “ha[d] spread much too far.” 54. Such press campaigns and official statements created fearsome new stereotypes of

homosexuals as child molesters, which continue to incite public fears about gay teachers and parents as well as other gay people who come into contact with children. Between the late 1930s and late 1950s, public hysteria incited by such press campaigns prompted more than half the state legislatures to enact laws allowing the police to force persons convicted of certain sexual offenses—or, in some states, merely suspected of being “sexual deviants”—to undergo psychiatric examinations. These examinations could result in indeterminate civil confinements for individuals deemed in need of a “cure” for their homosexual “pathology.” C. 55. Another Escalation of Anti-gay Policing During the postwar era, bars became an especially important meeting place for

lesbians and gay men because they were often the only public spaces in which people dared to be openly gay. Given their growing importance to gay people as a social center and the growing pressure on the police to enforce regulations prohibiting bars from serving homosexuals, gay bars became an important battleground in the postwar years. Despite the prevailing popular animosity
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toward homosexuals, state courts in New York and California issued rulings that curtailed the right of state liquor authorities and the police to discriminate against gay bar patrons. Official antipathy to homosexuals was so strong, however, that police officials circumvented or simply disregarded these judicial decisions. 56. This sharp escalation in the policing of gay life after the Second World War

occurred throughout the country. In 1955, for example, the government of Boise, Idaho launched a fifteen-month investigation of gay men in town, interrogating fourteen hundred persons and pressuring men known to be gay to reveal the names of other gay men. Police departments from Seattle and Dallas to New Orleans and Baltimore stepped up their raids on bars and private parties attended by gay and lesbian persons, and made thousands of arrests for “disorderly conduct.” By 1950, Philadelphia had a six-man “morals squad” arresting more gay men than the courts knew how to handle, some 200 a month. In the District of Columbia, there were more than a thousand arrests every year. In 1965, the Boston City Council’s Committee on Urban Renewal debated whether to bulldoze several downtown gay bars. A proponent of the effort, City Councilor Frederick Langone, gave a speech at the meeting calling for the destruction of “these incubators of homosexuality and indecency and a Bohemian way of life,” and insisting that “[w]e must uproot these joints so innocent kids won’t be contaminated.” Many gay bars were razed in the “revitalization” that followed. In 1969, a Councilman in Rocky Hill, Connecticut called for a nightclub frequented by homosexuals (Alice’s Joker Club) to be closed as a “public nuisance” because it was a “threat to the morals” of the town’s citizens. From 1933 until the mid 1960s, hundreds of bars that tolerated gay customers were closed in New York City alone. Some bars in New York and Los Angeles posted signs telling potential gay customers: “If You Are Gay, Please Stay Away” or, more directly, “We Do Not Serve Homosexuals.” VI. The Gay Rights Movement and its Opponents in the 1970s and 1980s A. 57. Early Successes of the Gay and Lesbian Rights Movement The dramatic escalation in policing and suppression in the post-war years failed to

eradicate gay life. In larger cities, lesbians and gay men covertly patronized bars and restaurants, which they turned into informal meeting places, took over remote sections of public beaches, and
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held dances and parties. In many smaller towns, gay life took shape unnoticed in church choirs, amateur theaters, and women’s softball leagues, and was sustained by closely knit social circles. 58. Nonetheless, most gay men and lesbians responded to the escalation in policing

after the Second World War by keeping their homosexuality carefully hidden from non-gay people. They developed elaborate verbal codes that allowed them to communicate with one another while remaining invisible to hostile outsiders. The word “gay” is a good example of this: before the 1970s few heterosexuals realized gay people had given it a distinctly homosexual meaning. But the very success of such subterfuges in concealing gay life made it difficult for gay people to find one another in the 1950s, and it severely limited the capacity of gay people to organize on their own behalf. 59. The earliest gay rights organizations, the Mattachine Society, ONE, and the

Daughters of Bilitis, were founded in the early 1950s at the height of the demonization of homosexuals as dangerous, irrational, and unstable pariahs who threatened the nation’s children as well as national security. This initial generation of activists worked to meet and educate potential allies among sociologists, psychologists, criminologists, and other professionals who had the credibility to speak on homosexuality that was denied to homosexuals themselves. 60. Gay rights organizations began to influence public policy in the mid-1960s,

although the pace of change varied enormously across the country. The New York Mattachine Society’s success in 1966 in persuading Mayor John Lindsay to end the widespread police use of entrapment had a profound effect on gay male New Yorkers, who for the first time in decades did not have to worry that the men who approached them in bars and elsewhere were undercover policemen. New York and California state court rulings finally curtailed the policing of gay bars and other meeting places in those states in the 1960s, but in some other parts of the country the police continued to raid gay bars well into the 1970s and 1980s. The growing divergence in the treatment of gay people in different parts of the country prompted a growing number of gay people to migrate from hostile areas to New York, Boston, San Francisco, Los Angeles, Chicago, and other more tolerant cities and regions. This mass migration, in turn, affected the political and

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cultural climate of those cities and regions, making them more likely to enact gay rights legislation and similar policies. 61. Major institutions that once helped legitimize anti-gay attitudes also began to

change their positions. Medical writers and mental health professionals whose stigmatization of homosexuality as a disease or disorder had been used to justify discrimination for decades were among the first to change their views. In 1973, the American Psychiatric Association voted to remove homosexuality from its list of mental disorders. The American Psychological Association soon followed suit. However, the American Psychiatric Association’s decision was fiercely opposed by prominent members of the association such as Charles Socarides and Irving Bieber. They and other medical professionals who claimed homosexuality was a treatable psychological disorder continued to receive considerable attention. 62. Censorship of gay images and speech declined. By the early 1960s, competition

from television led the Hollywood studios to reorganize their nearly thirty-year-old censorship code, enabling the studios to make films for adult viewers which addressed “serious themes” such as homosexuality. These themes remained off-limits for television. The studios initially still included very few gay characters in their features, and the television networks included virtually none, but ending formal censorship opened a door that resulted in significant cultural changes in later years. 63. A small but growing number of municipalities enacted legislation protecting

people from certain forms of discrimination on the basis of their sexual orientation. In 1972, East Lansing, Michigan, home to Michigan State University, became the first town to do so. Within five years, another twenty-seven communities passed such legislation, more than half of them university towns such as Ann Arbor, Austin, Berkeley, and Madison. They were joined by a handful of larger cities such as San Francisco, Minneapolis, Seattle, and Detroit. During this same period, however, a number of states enacted new legislation that criminalized homosexual sodomy, even as they decriminalized heterosexual sodomy. 64. Attitudes toward homosexuals and homosexuality in some religious denominations

also began to change. Since the 1970s, many mainline Protestant denominations have issued
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official statements condemning legal discrimination against homosexuals and affirming that homosexuals ought to enjoy equal protection under criminal and civil law. Several of these groups descended from the historically influential denominations whose religious authority had been invoked to justify colonial statutes against sodomy. The Lutheran Church in America, the Unitarian Universalist Association, the United Methodist Church, the United Church of Christ, the Protestant Episcopal Church, the Disciples of Christ, and the United Presbyterian Church in the U.S.A. all issued statements in support of civil rights for gay men and lesbians by 1980. 65. Those seven denominations, however, account for only 10.3 percent of the

American population. Many more Americans belong to faith traditions that remain strongly opposed to gay civil rights, including 26.3 percent affiliated with historically white evangelical Protestant churches and 23.9 percent who are Catholics. Leading clergy and laypeople from those churches have played a major role in opposing gay rights measures across the country. B. 66. Anti-Gay Discrimination in the 1970s and 1980s Gay men and lesbians continued to suffer discrimination at the hands of

government officials in the 1970s and 1980s. For example, police continued to raid gay bars in some cities. In 1970, the Connecticut State Motor Vehicle Department refused to renew the drivers license of a man on the grounds that he was “an admitted homosexual and that his homosexuality makes him an improper person to hold an operator’s license.” 67. Beginning in the late 1970s, the initial success of the gay movement in securing

local gay rights legislation, as well as the increasing visibility of gay people in the media, provoked a vigorous, negative reaction. Anti-gay rights advocates drew on pernicious stereotypes developed in previous decades to argue that enacting gay rights laws, permitting gay people to teach, and even simply allowing gay characters to appear on television sitcoms threatened the security of children and the stability of the family. 68. The anti-gay rights campaign of this era was effectively launched in 1977, when

Anita Bryant, a prominent Baptist singer and the spokeswoman for the Florida citrus growers, led a campaign to “Save Our Children” from newly enacted civil rights protections for gay men and lesbians in Dade County, Florida. Her success in persuading a decisive majority of Miami voters
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to vote against the ordinance depended heavily on her use of the still powerful postwar images of homosexuals as child molesters. Her organization published a full-page advertisement the day before the vote warning that the “other side of the homosexual coin is a hair-raising pattern of recruitment and outright seductions and molestation.” Her victory in Miami prompted groups in other cities to take up the cause, and in the next three years, laws extending civil rights protections to gay men and lesbians were repealed in more than a half-dozen bitterly fought referenda stretching from St. Paul, Minnesota to Eugene, Oregon. Gay rights advocates managed to defeat such referenda only in two elections, in November 1978, when Seattle voted to preserve its antidiscrimination ordinance and when California rejected the Briggs Initiative. The Briggs Initiative was a proposal so onerous it would have prohibited public school teachers, gay or straight, from saying anything that could be construed as “advocating homosexuality.” 69. The Save Our Children campaign had other far reaching effects. The day after the

Dade County gay rights ordinance was repealed, the governor of Florida signed into law a ban on adoption by lesbians and gay men, the first such statewide prohibition. Thousands of children who might otherwise have had loving parents were thus denied the stability of family life. Similarly, in 1985, Massachusetts Governor Michael Dukakis removed two boys from their foster care placement with a gay male couple and implemented a policy of preferred placement in “traditional family settings.” While Massachusetts’ ban was reversed in 1990 as a result of litigation, the Florida ban remained in effect until 2010. 70. Across the country, the unfounded fear that homosexuals posed a threat to children

itself threatened some children: those already being raised by lesbians and gay men. In the 1970s, most children being raised by lesbian or gay parents had been born before their parents came out as gay. When a parent came out, any dispute over child custody that had to be resolved in court was likely to be heavily influenced by stereotypes and prejudices. A growing number of such cases reached the courts in the 1970s and 1980s, and in case after case the courts took the custody of children away from a mother or father whose estranged husband or wife raised the parent’s lesbian or gay identity. Some courts confronting early disputes of this nature articulated a “per

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se” rule against custody and visitation claims made by gay and lesbian parents, holding that homosexuality was inherently inconsistent with parenthood as a matter of law. 71. The long-standing association of homosexuals with disease was reinforced in the

1980s by the media’s initial sensationalist coverage of AIDS, which frequently depicted homosexuals as bearers of a deadly disease threatening others. Fear of contagion prompted a new wave of discrimination against gay people in medical care, housing, and employment. Media coverage and the government’s slow response to the disease also reflected and reinforced the enduring conviction that homosexuals stood outside the moral boundaries of the nation. Even after the name AIDS (Acquired Immune Deficiency Syndrome) replaced the moniker GRID (Gay-Related Immune Deficiency), media reports initially minimized the crisis by reassuring Americans that the “general public” was not at risk, since the disease only affected homosexuals and a handful of other groups, as if gay people were not part of the “general public.” 72. The media coverage of AIDS and the numerous campaigns against local gay rights

laws had a dramatic effect on public opinion. In 1987, six years after the AIDS crisis unleashed a new wave of fear of homosexuals, public disapproval of homosexuality reached its peak. Polling data showed virtually no change through the 1970s, but the number of people who declared that homosexual relations were always wrong climbed from 73 percent in 1980 to 78 percent in 1987. In the 1980s, gay rights activists secured the enactment of gay rights ordinances in an additional forty cities, counties, and suburbs, including Boston, New York, Chicago, and Atlanta, bringing the national total to eighty. But these victories often were more difficult to achieve than they had been in the 1970s. In New York City, for example, the law passed the city council only after more than a decade of struggle. 73. National religiously-inspired organizations formed in the 1970s and 1980s, such as

the Moral Majority, Focus on the Family, Family Research Council, and Traditional Values Coalition, provided national leadership and coordination to the movement against gay rights and disseminated campaign materials, political strategies, and financial resources to local groups fighting gay rights ordinances.

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VII.

The Persistence of Anti-Gay Discrimination from the 1990s to the Present A. Legal Inequality in State Law 74. The spread of AIDS and the escalation of debate over gay rights at the local level

fueled a growing polarization of the nation over homosexuality in the 1980s and especially the 1990s. By the end of the 1980s, even cities and states that had managed to pass gay rights laws found those laws under attack from an increasingly well-organized and well-funded opposition. Beginning in 1988, and reaching a crescendo from 1992 to 1994, groups in Colorado, Oregon, Maine, and six other states used anti-gay referenda and initiatives to challenge gay rights laws, and built local anti-gay rights organizations. In the twenty-five years after Anita Bryant’s campaign in Florida, anti-gay activists introduced and campaigned for more than sixty anti-gay rights referenda around the country. Nationwide, gay rights supporters lost almost three-quarters of these contests. In Oregon alone, there were sixteen local anti-gay initiatives in 1993 and another eleven in 1994. Oregon’s gay rights supporters lost all but one. 75. Following Anita Bryant’s lead, anti-gay rights activists frequently fomented voter

fear of gay people by reviving demonic stereotypes of homosexuals as perverts who threatened the nation’s children and moral character. Two videos that repeatedly were screened in churches and on cable television, “The Gay Agenda” and “Gay Rights, Special Rights,” juxtaposed discussions of pedophilia with images of gay teachers and gay parents marching with their children in Gay Pride parades. With little subterfuge, the videos depicted homosexuals as child molesters. This message was reinforced by mass mailings and door-to-door distribution of antigay pamphlets, which fostered a climate of hostility and fear during the referenda. 76. In 1992, voters in Colorado passed Amendment Two, which amended the state

constitution to prohibit any municipality or unit of the government from enacting anti-gay discrimination ordinances or policies. This amendment repealed the ordinances already enacted by Denver, Boulder, and Aspen. Moreover, it removed from the political arena any future effort to secure anti-discrimination legislation for gay people. In the face of public antipathy to gay people, represented by the success of this and other referenda overturning non-discrimination laws, several legal groups filed a lawsuit, Romer v. Evans, challenging the constitutionality of
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such constitutional amendments. Once again, the courts protected the rights of the minority against the prejudice of the majority. In 1996, the Supreme Court overturned this state constitutional amendment because it withdrew legal protection against discrimination for gay men, lesbians, and bisexuals, but no others. 77. Although a number of states now have extended basic anti-discrimination

protections to gay men and lesbians, in twenty-nine states, there is no statutory barrier to firing, refusing to hire, or demoting a person in private sector employment solely on the basis of their identity as a gay man or lesbian. In approximately twenty states, there is no statutory or administrative barrier to such discrimination even in state government employment. Similarly, gay men and lesbians remain without statutory protection from discrimination in housing in thirty states. And, despite the critical role played by harassment of gay and lesbian meeting places in enforcing discrimination toward them throughout the twentieth century, gay and lesbian people in twenty-nine states have no statutory protection from discrimination in public accommodations. B. Legal Inequality in Federal Law 78. At the national level, employment discrimination against gay men and lesbians by

federal agencies remained permissible until the late 1990s. Although the outright ban on hiring gay federal employees was lifted in 1975, federal agencies were free to discriminate against gay men and lesbians in hiring and employment decisions until former President Clinton issued a first-of-its-kind executive order forbidding such hiring discrimination in 1998. 79. In 1992, President Bill Clinton’s proposal to end the armed forces’ policy banning

lesbians and gay men from serving in the military sparked a firestorm in the first months of his presidency and revealed how deeply divided the nation remained. The public outcry against his plan (calls to Congress ran a hundred to one against lifting the ban) had been stoked by years of local anti-gay organizing. Opposition to the new policy by both the Pentagon leadership and the public led Congress and President Clinton to enact a new law known as “Don’t Ask, Don’t Tell,” which allowed for the discharge of gay and lesbian soldiers if they acknowledged their sexual orientation under any circumstances, even in private counseling. Discharge of gay men and lesbians from the military continued after “Don’t Ask, Don’t Tell” became law. According to the
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Servicemembers Legal Defense Network, an organization dedicated to assisting military personnel affected by “Don’t Ask, Don’t Tell,” “more than 14,000 service members have been have been fired under the law since 1993.” 80. The repeal of “Don’t Ask, Don’t Tell” became effective in 2011. Although the

repeal was an important advance for gay men and lesbians, it did not restore the careers of the thousands of service members who had been discharged under the policy. Nor does it protect gay men and lesbians from the significant discrimination that they continue to face in other domains. After years of effort, gay and lesbian advocates and their allies still have not been able to enact any federal legislation that specifically prohibits discrimination in schools, employment, housing, and public accommodations on the basis of sexual orientation. The Employment NonDiscrimination Act, which would extend express employment protections on the basis of sexual orientation, has been introduced regularly since 1994 (and earlier versions as far back as the 1970s) and has never passed both houses of Congress. 81. Government-sanctioned discrimination against gay men and lesbians still exists

in federal immigration law. Federal law prohibits gay and lesbian Americans from sponsoring their same-sex spouses or registered partners from other countries for immigration benefits. C. Discrimination in Adoption, Custody, and Parenting 82. In the 1990s, lesbian mothers and gay fathers continued to risk their parenting

rights when their former different-sex spouses used their sexual orientation to try to deny them custody or visitation rights in divorces. By the mid-1990s, courts in most states followed rules that required individualized assessment of a parent’s fitness. But as Julie Shapiro’s 1996 study of custody cases around the country demonstrated, many courts continued to infuse those individualized assessments with their own prejudice against lesbians and gay men. As she discovered, courts were especially disapproving of lesbians and gay men who were honest about their sexual orientation with their children. In a widely publicized case, a Virginia trial court in 1993 granted a grandmother’s petition to take Sharon Bottoms’ two-year-old son away from her because, as the trial court judge explained, her lesbian “conduct is illegal . . . a Class 6 felony in the Commonwealth of Virginia.” He went on to declare “that it is the opinion of this Court that
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her conduct is immoral” and “renders her an unfit parent.” Virginia’s Supreme Court upheld the trial court’s decision terminating Sharon’s parental rights despite the presumption favoring her as a natural parent. In doing so, it relied on a wider range of evidence, including the finding that Bottoms’ lesbianism would subject her child to social condemnation and thus disturb the child’s relationships with peers and the community at large. Some courts had used similar reasoning to remove children from the homes of divorced white mothers who had married or lived with black men, a practice ruled unconstitutional by the Supreme Court in 1984. In that case, Palmore v. Sidoti, Chief Justice Warren Burger ruled that “private biases may be outside the reach of the law, but the law cannot directly, or indirectly, give them effect.” 466 U.S. 429, 433 (1984). But courts in many states continued to give legal effect to the private bias they assumed existed against lesbian and gay parents by preferring heterosexual parents over gay parents, without regard to other factors bearing on the child’s best interests. 83. Gay and lesbian parents continue to be forced by some courts to choose between

hiding their gay identities and losing parental rights. As one Texas attorney commented in 1988, “unless [a mother] ended her open lesbian relationship I would have little chance of winning a custody trial.” According to Clifford J. Rosky, in 2004, after ordering a gay father not to expose his child to his “gay lover(s) and/or gay lifestyle,” a Tennessee trial court sentenced the father to two days in jail for coming out to the child. 84. State and popular efforts that began in the 1970s to ban lesbians and gay men from

adopting or serving as foster parents continued throughout the 1990s and 2000s. For example, in 2000, Mississippi’s legislature passed a ban on adoption by same-sex couples that was subsequently signed by the governor. As recently as 2008, Arkansas enacted by popular referendum a ban on foster care and adoption by gay people. 85. Some states enacted laws that bar recognition of out-of-state adoptions by same-

sex couples. For example, in 2004, Oklahoma passed the “Adoption Invalidation Law,” which stated that Oklahoma “shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction.”

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86.

Some states refuse to allow a biological parent’s same-sex partner to adopt the

children they raise together. For example, as recently as December 2010, the North Carolina Supreme Court invalidated a second parent adoption by a woman’s same-sex partner, holding that a non-biological same-sex partner could not be recognized as a legal parent. 87. During the 1980s and 1990s, gay and lesbian parents continued to face significant

obstacles in custody and visitation disputes. Courts continued to demonstrate harsh judgments toward gay and lesbian parents even when a child was conceived with two gay or two lesbian parents intending to raise the child jointly. This was especially evident when the courts had to decide where to place a child when the child’s biological mother died and one of her relatives contested the right of her surviving partner, the child’s second mother, to continue to raise the child. In a number of cases, courts granted custody to those relatives despite clear evidence that the child wished to remain with her surviving mother. D. Depiction of Gay Men and Lesbians in the Media. 87. With the decline in movie and television censorship and the growing interest in

gay people and issues, there was a significant increase in the coverage of gay issues in the media and in the number of gay characters in movies and on television in the 1990s. By the time the immensely popular Will & Grace premiered on NBC in 1998, gay and lesbian characters were a more regular part of the television landscape. This exposure changed the dominant representation of homosexuals. Gay people usually appeared in the media in the 1950s as shadowy and dangerous figures, but they now appeared as a diverse and familiar group whose all-too-human struggles and pleasures drew the interest of large viewing audiences. 88. It was not only in the media that heterosexuals began to see gay and lesbian

people. Dramatically increasing numbers of lesbians and gay men revealed their homosexuality to their families, friends, neighbors, and co-workers in the 1990s. Polling data suggest the magnitude of the shift. In 1985, only a quarter of Americans reported that a friend, relative, or co-worker had personally told them that they were gay, and more than half believed they did not know anyone gay. Fifteen years later, in 2000, the number of people who knew someone openly gay had tripled to three-quarters of the population. Acceptance of gay men and lesbians and
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support for civil rights protections increased as growing numbers of heterosexuals realized that some of the people they most loved and respected were gay. 89. It is important not to overstate the results of this nationwide “coming out”

experience, however. In 2000, a significant majority of Americans still expressed moral disapproval of homosexuality. Moreover, support for lesbian and gay civil rights and equality continued to show significant regional differences. Polls showed that public opinion in Massachusetts, Connecticut, and Hawaii was the most tolerant. Support for civil rights also was strong in most other states in New England, in New Jersey and New York, and in other regional clusters: Maryland in the mid-Atlantic, Wisconsin, Minnesota, and Illinois in the upper Midwest, and California, Oregon, and Washington on the West Coast. Anti-gay sentiment was strongest in southern states and in the lower Midwest and plains states. The effects of these regional differences could be seen in regional variations in congressional votes on key gay rights issues, in the treatment of gay couples and individuals by state laws, regulations and court rulings concerning adoption and foster parenting, parental rights, and in the passage of gay rights laws. Only two states—Wisconsin in 1982 and Massachusetts in 1989—enacted legislation banning anti-gay discrimination before 1990. The number rose to eleven by 2000, but eight of the states were in the Northeast or on the Pacific Coast. The rights of gay people continue to vary enormously across the nation. E. Continued Official, Religious, and Private Condemnation of Homosexuality in the 1990s-2000s 90. Gay people also continue to face discrimination and opprobrium from highly

regarded institutions and officials. The Boy Scouts of America, a federally-chartered organization, continues to insist that “homosexual conduct is not morally straight,” and refuses to allow gay men into the organization. Boy Scouts of America v. Dale, 530 U.S. 640, 651 (2000). Less than a decade ago, the Chief Justice of the Alabama Supreme Court referred, in a judicial opinion, to homosexual conduct as “abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature’s God upon which this Nation and our laws are predicated.” Ex Parte H.H., 830 So. 2d 21, 26 (2002) (Moore, C.J., concurring).  
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91.

Although the American Psychiatric Association (APA) removed homosexuality

from its list of mental disorders in 1973, dissident psychiatrists and psychologists led by Charles Socarides and Joseph Nicolosi established the National Association for Research and Therapy of Homosexuality (NARTH) in 1992. Disagreeing with both the APA and prevailing professional opinion, NARTH continues to disseminate materials claiming a scientific basis for believing that homosexuality is a psychological disorder and a “potentially deadly lifestyle,” and that homosexuals can be “healed.” NARTH also lectures, partners with religious organizations, supports conversion therapy activities, and files amicus briefs in court cases. 92. Anti-gay activists also used the appearance of AIDS in the early 1980s to rekindle

the historic associations between homosexuality, disease, and public danger. F. Anti-Gay Policing and Private Anti-Gay Violence 93. Although police harassment of gay men and lesbians and their meeting places is

not as common as it was some years ago, it continues to be a problem. In 2009, for example, there were highly publicized police raids of gay bars in Atlanta, Georgia, and in Ft. Worth, Texas, where one patron was critically injured. 94. Gay people also continue to face violence motivated by anti-gay bias. A handful

of horrific incidents have drawn widespread media attention. In 1984, in Bangor, Maine, 23year-old Charlie Howard was targeted by three teens due to his sexual orientation. They attacked him and, although he protested that he could not swim, threw him off a bridge into the Kenduskeag Stream, where he drowned. Then, in 1998, Matthew Shepard, a college student in Laramie, Wyoming, was bound, tied to a fence, beaten with a pistol, and left to die because he was gay. Ten years later, Lawrence “Larry” Fobes King, a 15-year-old student at E.O. Green Junior High School in Oxnard, California, was shot and killed in school by a fellow student because of his sexual orientation. But the problem reaches far beyond these three incidents. For example, in 1994, in Reno, Nevada, a gay businessman, William Metz, was stabbed more than 20 times by his murderer, who reputedly wanted to carve a swastika into his body. The FBI reported 1,260 hate crime incidents based on perceived sexual orientation in 1998 and 1,265 in 2007. In 2008, the year of Lawrence King’s murder, a national coalition of anti-violence social service
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agencies identified twenty-nine murders motivated by the assailants’ hatred of lesbian, gay, bisexual, or transgender people. The threat of violence continues to lead many gay people to hide their identities or to avoid such commonplace expressions of affection as holding hands with their partners in public. 95. The most vulnerable victims of discrimination are youth. A national study

published in December 2010 found that gay and lesbian teenagers are nearly 40 percent more likely than heterosexual teenagers to be punished by schools, police, and the courts. According to the Gay, Lesbian and Straight Education Network’s 2009 National School Climate Survey published in 2010, 61.1 percent of lesbian, gay, bisexual and transgender (LGBT) students surveyed felt unsafe at school because of their sexual orientation; 84.6 percent were verbally harassed because of their sexual orientation; 40.1 percent were physically harassed in the past year because of their sexual orientation; and 18.8 percent were physically assaulted because of their sexual orientation. A recent study sponsored by the New York City Council noted the overrepresentation of LGBT youth among the city’s homeless population. And the recent spate of suicides among LGBT youth has highlighted the personal consequences of the ostracism and demonization of gay men and lesbians in American society. 96. One example of the harassment that LGBT youth may face comes was recounted

by Derek Henkle, a high school student in Washoe County School District, Nevada, who sued the District for failing to protect him from anti-gay harassment. Henkle v. Gregory, 150 F. Supp. 2d 1067 (D. Nev. 2001). His suit contended that, on one occasion, students lassoed a rope around his neck in the school parking lot and threatened to kill him by dragging him from their truck. On another occasion, Henkle explained, he was punched by another student while two school security guards stood by. Henkle also reported that one of his principals told him to “stop acting like a fag.” The case resulted in the largest pre-trial settlement of its kind in the nation at the time. G. Marriage 97. Gay men and lesbians are still prohibited from marrying in the vast majority of

states in this country and the question of marriage rights for same-sex couples remains hotly contested across-the-board. Some of the arguments made in the debate over the right of gay
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couples to marry have echoed those made in earlier debates over the rights of disfavored minority groups. Fifty years ago, for instance, segregationists often claimed that segregation and statutes banning interracial marriage reflected God’s plan for humankind. In the 1960s, a Virginia judge who upheld that state’s law against interracial marriage in the lower-court proceeding in Loving v. Virginia claimed that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” 98. Opponents of the right of gay people to marry or adopt children also have drawn on

their reading of scripture to justify their positions. As recently as 2002, when the Supreme Court of Alabama reversed the Alabama Court of Civil Appeals’ decision to grant a lesbian mother custody of her children, the Chief Justice of the Supreme Court of Alabama used language as strong as that used by the trial judge in Loving v. Virginia in his concurring opinion: “Homosexuality is strongly condemned in the common law because it violates both natural and revealed law. The law of the Old Testament enforced this distinction between the genders by stating that ‘[i]f a man lies with a male as he lies with a woman, both of them have committed an abomination.’ Leviticus 20:13 (King James) . . . The common law designates homosexuality as an inherent evil, and if a person openly engages in such a practice, that fact alone would render him or her an unfit parent.” Ex parte H.H. 830 So.2d 21, 33, 35 (Ala. 2002). 99. The vigorous opposition to ending discrimination against lesbian and gay couples in

marriage law is the latest example of this pattern. The marriage issue first reached the national stage in 1993, when Hawaii’s Supreme Court ruled that the state’s ban on marriages between same-sex couples presumptively violated the state’s equal rights amendment and remanded the lawsuit challenging that ban to a lower court for review. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). By 1996, when a second trial began in the lower court, the prospect of gay couples winning the right to marry had galvanized considerable opposition. Ultimately, while the litigation was pending, Hawaii amended its constitution to give the legislature the authority to limit marriage to different-sex couples, see Haw. Const. art. I, § 23, which it did. The Hawaii Supreme Court then dismissed the
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case as moot. Baehr v. Miike, Civ. No. 20371 slip op. at 5-8 (Dec. 9, 1999) (taking notice of constitutional amendment). In addition, under pressure from organizations proclaiming support for “traditional family values,” the United States Senate passed the Defense of Marriage Act (DOMA) on the day the Hawaii trial began. The Act provided a federal definition of marriage as the union of one man and one woman and declared that no state needed to give “full faith and credit” to “same-sex marriages” licensed in another state. It also denied federal benefits to such married couples. Fourteen states passed state-level DOMA statutes that year, and another eleven passed such statutes the following year. In 2000 and 2002, voters in Nevada approved a state constitutional amendment to bar same-sex couples from marriage. In 2004, when Massachusetts became the first state to permit gay couples to marry, a full thirteen states passed constitutional amendments banning such marriages even though twelve of those states already had enacted statutory state DOMAs. 100. Indeed, in each state where gay men and lesbians have achieved the right to marry

– either through judicial decision or legislative action – there has been significant and organized action by those opposed to marriage rights for same-sex couples to take that right away. California provides a good – and especially contentious – example. In February 2004, San Francisco mayor Gavin Newsom instructed city officials to issue marriage licenses to same-sex couples. The California Supreme Court ordered the city to stop doing so the following month, and it later nullified the marriages which had been performed. In 2005, and again in 2007, California’s legislature approved bills that would legalize marriage for same-sex couples, but both bills were vetoed by then-Governor Schwarzenegger. In May 2008, the California Supreme Court decided in In re Marriage Cases, 183 P.3d 384 (Cal. 2008) that the privacy and due process provisions of the California Constitution guaranteed the basic civil right of marriage to all individuals and couples, without regard to their sexual orientation. Six months later, on November 4, 2008, California voters approved Proposition 8, adding to the California Constitution the provision “Only marriage between a man and a woman is valid or recognized in California.” Same-sex couples immediately sued to prevent the enforcement of Proposition 8, but their efforts were rebuffed by the California Supreme Court in Strauss v. Horton, 207 P.3d 48 (Cal. 2009). The court held that the amendment was lawfully enacted, but that it did not invalidate marriages of
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same-sex couples performed in California prior to its effective date. Federal litigation concerning the constitutionality of Proposition 8 is ongoing, with the Ninth Circuit overturning Proposition 8 on equal protection grounds. 101. Opponents of marriage equality who supported Proposition 8 mobilized some of

the most enduring anti-gay stereotypes to heighten public apprehension. Several television commercials aired by the supporters of Proposition 8, for instance, warned that marriage equality might encourage children to become homosexuals themselves. The approval of California’s Proposition 8 along with similar laws and constitutional amendments in forty other states indicates the enduring influence of anti-gay hostility and the persistence of ideas about the inequality of gay people and their relationships. 102. Iowa provides another example. In April 2009, a unanimous Iowa Supreme Court

struck down the exclusion of qualified same-sex couples from civil marriage. In response, national organizations opposed to marriage for same-sex couples, such as the National Organization for Marriage and the American Family Association, initiated a campaign for the removal of three of the judges involved in that decision who were subject to retention elections. The campaign was successful, and all three judges were ousted from their position on the bench. Efforts to legislatively repeal marriage for same-sex couples now are underway in Iowa. CONCLUSION Today the civil rights enjoyed by gay and lesbian Americans vary substantially from region to region and are still subject to the vicissitudes of public opinion. Like other minority groups, they often must rely on judicial decisions to secure equal rights. The role of the courts in this dispute is reminiscent of earlier disputes in which courts had to confront public opposition to minority rights. In 1948, when the California Supreme Court became the first state supreme court in the nation to overturn a state law banning interracial marriage, it bucked the tide of white public opposition to such marriages. While the United States Supreme Court overturned the remaining state bans on interracial marriage in 1967 in Loving v. Virginia, it was not until 2001 that more Americans approved of interracial marriage than disapproved of it. History has vindicated the judges who had the courage and foresight to uphold the constitutional rights of
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Exhibit A

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GEORGE

CHAUNCEY

Department of History Yale University P.O. Box 208324 New Haven, CT 06520-8324 (203) 432-1364 george.chauncey@yale.edu

CURRENT POSITION
Professor of History and American Studies; Chair, Department of History, Yale University Co-director, Yale Research Initiative on the History of Sexualities

PREVIOUS POSITIONS
Professor of History, University of Chicago, 1997-2006. Visiting Professor of History, École Normale Supérieure, Paris, May 2001. Associate Professor of History, University of Chicago, 1995-97. Assistant Professor of History, University of Chicago, 1991-95. Assistant Professor of History, New York University, 1990-91. Postdoctoral Fellow, Rutgers Center for Historical Analysis, 1989-90.

DEGREES
Ph.D., Yale University, 1989. M.Phil., Yale University, 1983. M.A., Yale University, 1981. B.A., Yale University, magna cum laude, 1977.

AWARDS
Gay New York was awarded the: Frederick Jackson Turner Award for the best first book on any topic in American history in 1994 Merle Curti Award for the best book in American social history in 1994 or 1995 (both from the Organization of American Historians), Los Angeles Times Book Prize for History (1994), Lambda Literary Award for Gay Men’s Studies (1994), John Boswell Award of the Committee on Lesbian and Gay History of the American Historical Association (1995). Named a New York Times Notable Book of 1994. Village Voice List: one of the Best Books of 1994. Lingua Franca List: one of the two best academic books of the 1990s. Subject of a panel discussion, “Charting Chauncey’s Gay Male World: Reflections on the Tenth Anniversary of Gay New York,” at the 2004 meeting of the OAH. As a dissertation, Gay New York received the following prizes from Yale University: George Washington Egleston Prize in American history (1990), John Addison Porter Prize, Yale’s highest university-wide dissertation award (1990), Andrew Gaylord Bourne Gold Medal, the Yale History Department’s triennial award for a “pioneering work of scholarship” (1992). Other Honors: New York Academy of History, elected to membership in 2007. Society of American Historians, elected to membership in 2005. Community Service Award from the Lesbian Community Cancer Project, Chicago, 2004.

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George Chauncey, page 2

Freedom Award from Equality Illinois, the state’s largest gay rights group, 2001. First James Brudner Memorial Award in Lesbian and Gay Studies, Yale University, 2000. Centennial Historian of the City of New York, 1998. Sprague-Todes Literary Award, Gerber-Hart Library, 1997.

BOOKS AND EDITED COLLECTIONS
Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 Basic Books, 1994; paperback, 1995. British edition published by HarperCollins/U.K., 1995. French translation by Didier Eribon published by Fayard, 2003. Chapters reprinted in: The Columbia Reader on Lesbians and Gay Men in Media, Society, and Politics, eds. Larry Gross and James C. Woods (Columbia, 1999) The Gender and Consumer Culture Reader, ed. Jennifer Scanlon (NYU, 2000) Major Problems in the History of American Sexuality: Documents and Essays, ed. Kathy Peiss (Heath, 2001) Sexualities in History, eds. Kim M. Phillips and Barry Reay (Routledge, 2002). American Queer: Now and Then, ed. David Shneer and Caryn Aviv (Paradigm, 2006). The Strange Career of the Closet: Gay Culture, Consciousness, and Politics from the Second World War to the Gay Liberation Era (in progress, to be published by Basic Books). Why Marriage? The History Shaping Today’s Debate Over Gay Equality (Basic Books, 2004; paperback, 2005). Japanese translation published by Akashi Shoten, 2006. Hidden From History: Reclaiming the Gay and Lesbian Past (Co-editor, with Martin Duberman and Martha Vicinus; a collection of thirty essays published by New American Library in 1989). Turkish translation published by Siyasal, 2002. Thinking Sexuality Transnationally (= special issue of GLQ: A Journal of Lesbian and Gay Studies, 5:4 (1999), co-editor with Elizabeth Povinelli). Gender Histories and Heresies (= special issue of Radical History Review, 52 (1992), co-editor with Barbara Melosh).

ARTICLES IN SCHOLARLY JOURNALS AND COLLECTIONS
“The Trouble with Shame,” in Gay Shame, ed. David Halperin and Valerie Traub (University of Chicago Press, 2010). “How History Mattered: Sodomy Law and Marriage Reform in the United States,” Public Culture 20:1 (2008): 27-38. “Homosexuality, Family, and Society: Historical Perspectives from the United States,” in Homosexuality and the Law: Essays and Materials from an International Workshop on Sexuality, Policy, and Law (Guangxi Normal University Press, 2007 [in Chinese and English]), 12-18, 115-23. “Après Stonewall, le déplacement de la frontière entre le ‘soi’ public et le ‘soi’ privé,” Histoire et Sociétés: revue européenne d’histoire sociale 3 (2002): 45-59. “Skapets historie,” Kvinneforskning 24 (2000): 56-71 [“The History of the Closet,” in the Norwegian journal Women’s Studies]. “Introduction: Thinking Sexuality Transnationally,” with Elizabeth A. Povinelli, in Povinelli and Chauncey, eds., “Thinking Sexuality Transnationally,” special issue of GLQ: A Journal of Lesbian and Gay Studies 5:4 (Autumn 1999): 439-49.

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“Gay New York,” Actes de la recherche en sciences sociales 125 (December 1998): 9-14. [This article and the rest of the special issue on Homosexualités are introduced by Éric Fassin, “Politiques de l’histoire: Gay New York et l’historiographie homosexuelle aux Étas-Unis,” 3-9.] “Genres, identités sexuelles et conscience homosexuelle dans l’Amérique du xxe siècle,” in Les études gay et lesbiennes, ed. Didier Eribon (Paris: Éditions du Centre Pompidou, 1998), 97-108. “Sex, Gender, and Sexuality: Female Prostitution and Male Homosexuality in Early Twentieth-Century America,” GRAAT (Groupes de Recherches Anglo-Americaines de Tours) 17 (1997): 39-54. “The Queer History and Politics of Lesbian and Gay Studies,” Queer Frontiers: Millennial Geographies, Genders, and Generations, ed. Joseph Boone, et al. (University of Wisconsin Press, 2000), 298-315. “From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female Deviance,” Salmagundi, no. 58-59 (Fall 1982-Winter 1983): 114-46. Reprinted in two collections: Homosexualidad: literatura y politica (Madrid, 1982), in Spanish Passion and Power: Sexuality in History, ed. Kathy Peiss and Christina Simmons (Temple University Press, 1989). “Christian Brotherhood or Sexual Perversion? Homosexual Identities and the Construction of Sexual Boundaries in the World War One Era,” Journal of Social History 19:2 (1985): 189-211. Reprinted in ten collections: Onder Mannen, Onder Vrouwen (Amsterdam, 1984), in Dutch Sodomites, Invertis, Homosexuels: Perspectives Historiques (Paris, 1994), in French Expanding the Past: Essays from the Journal of Social History (New York University Press, 1988) Hidden From History: Reclaiming the Gay and Lesbian Past (NAL, 1989) Studies in Homosexuality: History of Homosexuality in Europe and America (Garland, 1992) Gender in American History Since 1890 (Routledge, 1993) Que(e)rying Religious Studies (Continuum, 1997) Same Sex: Debating the Ethics, Culture, and Science of Homosexuality (Rowman & Littlefield, 1997) American Sexual Histories (Blackwell, 2001) Sexual Borderlands: Constructing An American Sexual Past (Ohio University Press, 2003) “‘Privacy Could Only Be Had in Public’: Gay Uses of the Streets,” Stud: Architectures of Masculinity, ed. Joel Sanders (Princeton Architecture Press, 1996), 224-61. “The Postwar Sex Crime Panic,” True Stories from the American Past, ed. William Graebner (McGraw-Hill, 1993), 160-78. “Long-Haired Men and Short-Haired Women: Building a Gay World in the Heart of Bohemia,” Greenwich Village: Culture and Counterculture, ed. Rick Beard and Leslie Berlowitz (Rutgers University Press, 1993), 151-64. “The Policed: Gay Men’s Strategies of Everyday Resistance,” Inventing Times Square: Commerce and Culture at the Crossroads of the World, 1880-1939, ed. William R. Taylor (Russell Sage, 1991), 315-28. Reprinted in Creating A Place For Ourselves: Lesbian, Gay`, and Bisexual Community Histories, ed. Brett Beemyn (Routledge, 1997). “The National Panic Over Sex Crimes and the Construction of Cold War Sexual Ideology, 1947-1953,” Sociologische Gids [Amsterdam] 32 (1985): 371-93. [In Dutch; title translated.] “The Locus of Reproduction: Women’s Labour in the Zambian Copperbelt, 1927-1953,” Journal of Southern African Studies 7 (1981): 135-64.

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SELECTED SHORT ESSAYS, REVIEWS, INTERVIEWS, AND ENCYCLOPEDIA ENTRIES
“Last Ban Standing,” New York Times, December 21, 2010, A35. “Gay at Yale: How Things Changed,” Yale Alumni Magazine (July/August 2009), 32-43. “George Chauncey: de l’autre côté du placard,” interview conducted by Philippe Mangeot for Vacarme, no. 26 (Winter 2004), 4-12. “D’une march à l’autre,” interview conducted by Sébastien Chauvin for Têtu (June 2004), 86-87. Review of James McCourt, “Queer Street: Rise and Fall of an American Culture, 1947-1985,” New York Times, December 31, 2003. “Etats Unis” and “New York,” in Dictionnaire Des Cultures Gays Et Lesbiennes, ed. Didier Eribon, Arnaud Lerch, Frederic Haboury (Larousee, 2003). Amici Curiae Brief of Professors of History to the Supreme Court in the case of Lawrence v. Texas (organizer and primary author; co-signed by nine other historians). Sections reprinted as “Educating the Court: In Changing the Law of the Land, Six Justices Turned to Its History,” Word for Word column, Week in Review, New York Times, July 20, 2003, and discussed in “What Gay Studies Taught the Court,” Washington Post, July 13, 2003. Reprinted in full, with my introduction, in GLQ: A Journal of Lesbian and Gay Studies 10.3 (2004): 509-38. “Introduction,” Homosexuality in the City: A Century of Research at the University of Chicago (University of Chicago Library, 2000). “Who is Welcome at Ellis Island? AIDS Activism and the Expanding National Community,” Honoring With Pride: An Evening Benefit for the American Foundation for AIDS Research on Ellis Island, program book, June 21, 2000. “The Ridicule of Lesbian and Gay Studies Threatens All Academic Inquiry,” back page “Point of View” column, Chronicle of Higher Education, July 3, 1998. Review of Charles Kaiser, “The Gay Metropolis, 1940-1996,” New York Times , December 30, 1997. Review of Daniel Harris, “The Rise and Fall of Gay Culture,” New York Times Book Review, September 7, 1997. “The Joy of No Sex,” part of a Talk-of-the-Town roundtable on the Heaven’s Gate mass suicide, The New Yorker, April 14, 1997, 31-32. “The Present as History,” Out Magazine, February 1997, 69. “Tea and Sympathy,” Past Imperfect: History According to Hollywood, ed. Mark Carnes (Henry Holt, 1995), 258-61. “Gay male community,” in The Encyclopedia of New York City, ed. Kenneth Jackson (Yale, 1995). “A Gay World, Vibrant and Forgotten,” New York Times Op-Ed Page, Sunday, June 26, 1994. “Queer Old New York: A Historic Walking Tour,” Village Voice, June 21, 1994, 25-27. “Homosexuality,” The Encyclopedia of Social History, ed. Peter N. Stearns (Garland, 1993), 323-25. “Time on Two Crosses: An Interview with Bayard Rustin” (with Lisa Kennedy), Village Voice, June 30, 1987, 27-29. “Gay Male Society in the Jazz Age,” Village Voice, July 1, 1986, 29-34.

FELLOWSHIP AWARDS
New York Public Library Dorothy and Lewis B. Cullman Center for Scholars and Writers Residential Fellowship, 2004-5. Princeton University Shelby Cullom Davis Center for Historical Studies Fellowship, 2004-5 [declined]. Institute for Advanced Study School of Social Science Membership, 2004-5 [declined].

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Social Science Research Council Sexuality Research Fellowship, two Faculty Advisor Awards, 2002-3. Social Science Research Council Sexuality Research Fellowship, Faculty Advisor Award, 1999-2000. Fellow, Institute for Advanced Study, Indiana University, September 1998. Social Science Research Council Sexuality Research Fellowship, two Faculty Advisor Awards, 1997-98. John Simon Guggenheim Memorial Foundation Fellowship, 1996-97. National Humanities Center Rockefeller Fellowship and Residency, 1996-97. American Council of Learned Societies Fellowship for Recent Recipients of the Ph.D., 1992-93. Cornell University Society for the Humanities Postdoctoral Fellowship, 1991-92 [declined in order to accept new position at Chicago]. Rutgers Center for Historical Analysis Postdoctoral Fellowship, 1989-90. New York University School of Law Samuel Golieb Fellowship in Legal History, 1987-88. Mrs. G. Whiting Foundation Fellowship in the Humanities, 1986-87. Woodrow Wilson Foundation Research Grant in Women's Studies, 1984. Bush Center in Child Development and Social Policy History Fellowship, 1983-84. Yale College Prize Teaching Fellowship, 1982-83. Danforth Foundation Graduate Fellowship, 1979-82. John Courtney Murray Travelling Fellowship, 1977-78 [supported research in Zambia].

PRIMARY INVESTIGATOR, INSTITUTIONAL GRANTS
Ford Foundation, grant in support of “The Future of the Queer Past: A Transnational History Conference,” University of Chicago, 2000. Rockefeller Foundation, grant in support of “The Future of the Queer Past: A Transnational History Conference,” University of Chicago, 2000. Illinois Humanities Council, grant in support of “The Future of the Queer Past: A Transnational History Conference,” University of Chicago, 2000. Mellon Foundation, grant in support of the Sawyer Seminar on Sexual Identities and Identity Politics in Transnational Perspective, University of Chicago, 1997-98.

NAMED LECTURES, PLENARY LECTURES, AND SELECTED FOREIGN LECTURES
“From Sodomy Laws to Marriage Amendments: The History Shaping Today’s Debate over LGBT Equality,” keynote address at Toward a More Perfect Union: Civil Rights, Human Rights, and Creating a New Age of Social Responsibility, Benjamin Hooks Conference for Social Change, University of Memphis, April 2012 “Single Men, Urban Decline, and the Cultural Logic of Postwar American Antigay Politics,” Rutgers Center for Historical Analysis Twentieth Anniversary Celebration Conference, Rutgers University, May 2010 “Homosexuality and the Postwar City,” Center for Interdisciplinary Research in the Arts, University of Manchester, England, March 2009. “Homosexuality and the Postwar City,” keynote lecture, Australia-New Zealand American Studies Association, Sydney, July 2008. “From Sodomy Laws to Marriage Amendments: A History of Sexual Identity/Politics,” Provost’s Lecture, University of Maryland, College Park, February 2008. “Revisiting the Postwar Politics of Sexuality,” keynote lecture (with Joanne Meyerowitz), New England American Studies Association, Brown University, November 2007. “From Sodomy Laws to Marriage Amendments: A History of Sexual Identity/Politics,” Presidential Lecture, Columbia University, April 2007. “Why ‘Come Out of the Closet’? Secrecy, Authenticity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s,” Vern and Bonnie Bullough Lecture in the History of Sexuality and Gender, University of Utah, April 2007.

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“The Future of Sexuality Studies,” at the plenary session of the Sexuality Research Fellowship Program’s Capstone Conference (commemorating the conclusion of a ten-year-long fellowship program funded by the Ford Foundation and administered by the Social Science Research Council), Tamayo Resort, New Mexico, April 2006. “Homosexuality, State, and Society: Historical Perspectives from the United States,” at the symposium “Diversity, Equality and Harmony: International Workshop on Sexuality, Policy and Law,” School of Social Development and Public Policy, Fudan University, Shanghai, China, January 2006. “How History Mattered: Sodomy Law and Marriage Reform in the United States,” at the conference “Partisan Histories: Conflicted Pasts and Public Life,” The Australian National University, Canberra, September 2005. “From Sodomy Laws to Marriage Amendments: Sexual Identity/Politics Since 1900,” Kaplan Lecture, University of Pennsylvania, March 2004. “Reflections on Gay New York and Beyond,” at the symposium “Histoire sexuelle et histoire sociale, à l’occasion de la traduction française de Gay New York 1890-1940 de George Chauncey,” École normale supérieure, Paris, December 2003. “Civil Rights, Gay Rights, Human Rights,” dual keynote address given with Mrs. Coretta Scott King at the beginning of Outgiving, a conference on gay philanthropy organized by the Gill Foundation, Atlanta, September 2003. “Drag Balls as Society Balls: Phil Black’s Funmakers’ Ball and the Changing Rituals of Belonging in African American Society, 1940-1973,” Mark Ouderkirk Memorial Lecture, Museum of the City of New York, September 2003. “A Different West Side Story: Latino Gay Culture and Antigay Politics in Postwar New York City,” Nicholas Papadopoulos Endowed Lecture in Lesbian and Gay Studies, University of California, San Diego, February 2003. “Why ‘Come Out of the Closet’? Secrecy, Authenticity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s,” The Rahv, Hughes, Manuel and Marcuse Memorial Lecture, Brandeis University, February 2003. “Sexual Identity in the Twentieth Century,” Women’s Breakfast, American Historical Association, January 2003. “Sexuality, Intimacy, and History,” Commencement Address, University of Chicago, June 2002. “Why ‘Come Out of the Closet’? Authenticity, Post/Modernity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s,” at “Histoire de la sexualité: échanges transatlantiques,” at the École normale supérieure, Paris, May 2001. “The History of the Closet,” Inaugural George Mosse Memorial Lecture, University of Wisconsin, April 2001. “The History of the Closet,” at the Sexuality 2000 Symposium, Oslo, Norway, August 2000. “Why ‘Come Out of the Closet’? Authenticity, Post/Modernity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s,” Inaugural Brudner Prize Lecture, Yale University, February 2000. “Rethinking the History of Homosexuality and the Category of the Homosexual” and “A Research Program for Lesbian and Gay Studies,” at the First Swedish Conference on Research on Homosexuality and Lesbianism, University of Gothenburg, Sweden, November 1995. “The National Panic over Sex Crimes in Cold War America,” Inaugural Mark Ouderkirk Memorial Lecture, Museum of the City of New York, June 1995. “Gay Studies on Trial: Queer History/Politics/Studies,” at the Fifth National Graduate Student Conference on Lesbian and Gay Studies, University of Southern California, Los Angeles, March 1995.

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“The Kinsey Scale and the Consolidation of the Hetero-Homosexual Binarism in the Twentieth Century,” at the Second International Conference on the History of Marriage and the Family, Carleton University, Ottawa, Canada, 1994. “European Sexual Cultures in the Immigrant Neighborhoods of New York City, 1890-1940,” at the International Conference on European Sexual Cultures, University of Amsterdam, The Netherlands, June 1992. “Publish and Perish? Lesbian/Gay Studies, Publishing, and the Academy,” at the plenary session on “New Directions in Scholarship,” Association of American University Presses, Chicago, June 1992.

OTHER INVITED LECTURES SINCE 1989
Chicago History Museum, April 14, 2011. Columbia University, February 19, 2011. Rutgers University, May 7, 2010. University of Antwerp, Belgium, March 20, 2010 University of Amsterdam, March 15, 2010 Middlebury College, October 17, 2008. The Rothmere American Institute, Oxford University, April 30, 2008. University of Texas, Austin, April 11, 2008. University of Amsterdam, The Netherlands, May 3, 2006. Facultad de Filosofía y Letras, University of Buenos Aires, Argentina, March 20, 2006. Kansas State University, March 10, 2006. University of Miami, February 27, 2006. DePaul University, Chicago, February 20, 2006. Harvard University, February 3, 2006. University of Massachusetts, Boston, February 3, 2006. Boston University, February 2, 2006. Yale University, January 17, 2006. University of Melbourne, Australia, September 21, 2005. University of Sydney, Australia, September 7, 2005. New York University, April 19, 2005. Chicago Historical Society, May 27, 2004. University of North Texas, April 17, 2004. University of Maryland, February 23, 2004. University of California, Berkeley, September 25, 2003. University of California, Los Angeles, February 20, 2003. University of Minnesota, February 15, 2002. Texas A&M University, April 25, 2001. William and Mary College, April 18, 2001. Northwestern University, April 5, 2001. Harvard University, November 16, 2000. Trinity College, November 15, 2000. University of Michigan, April 15, 2000. University of Connecticut, Storrs, February 17, 2000. Hobart and William Smith Colleges, February 13, 2000. Chicago Humanities Festival, November 8, 1998. Indiana University, September 17, 1998. University of Minnesota, May 22, 1998. Institute for the Humanities, University of Illinois, Chicago, February 13, 1998. Pompidou Center, Paris, June 27, 1997. Colby College, April 10, 1997. Cornell University, April 8, 1997. University of California, Los Angeles, February 5, 1997. University of California, Irvine, February 3-4, 1997. Northwestern University, December 6, 1996.

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Yale University, American Studies and History Departments, November 7, 1996. Yale School of Architecture Urbanism Series, November 7, 1996. University of Copenhagen, Denmark, November 3, 1995. National Danish Lesbian and Gay Organization, Copenhagen, November 3, 1995. University of Illinois, Champaign-Urbana, MillerComm Lectures, October 23, 24, 1995. University of Notre Dame, September 9, 10, 1995. Princeton University, March 9, 1995. Chicago Teacher’s Institute, December 7, 1994. New York Academy of Medicine, New York City, November 10, 1994. University of Chicago New York City Club, Distinguished Faculty Lecture Series, October 13, 1994. Northwestern University, May 17, 1994. New York Public Library, Celeste Bartos Forum, May 3, 1994. [This lecture was later broadcast on public television.] New York University, April 29, 1994. Rutgers University, December 6, 1993. Newberry Library Social History Seminar, June 8, 1993. University of Wisconsin, Milwaukee, Center for Twentieth Century Studies, March 25, 1993. Urban History Seminar of the Chicago Historical Society, January 12, 1993. University of Illinois at Chicago, November 11, 1992. New York City Lesbian and Gay Community Services Center, Gregory Kolovakas Memorial Lecture Series, November 19, 1992. University of Oregon, April 24, 1992. Cornell University, February 24, 1992. University of Chicago Centennial Symposium, Canons in the Age of Mass Culture, February 10, 1992. Northwestern University, May 30, 1991. Johns Hopkins University, March 28, 1991. Sarah Lawrence College, November 27, 1990. Carleton College, April 5, 1990. Museum of the City of New York, November 5, 1989. Rutgers Center for Historical Analysis, October 3, 1989. Rutgers University, Camden, April 6, 1989.

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Exhibit B

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BIBLIOGRAPHY Across the USA: News From Every State, USA Today, Jul. 27, 1994 at 10a. Allan Bérubé, Coming Out Under Fire: The History of Gay Men and Women in World War II (New York: Free Press, 1992). Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010). Nan Alamilla Boyd, Wide Open Town: A History of Queer San Francisco (Berkeley: University of California Press, 2003). Robbie Brown, Antipathy Toward Obama Seen as Helping Arkansas Limit Adoption, The New York Times, Nov. 8, 2008 at A26. Rob Burnes, Homosexual Law Unchanged, The Billings Gazette, Sept. 3, 1970, at 6. California Safe Schools Coalition, et al., Safe Place to Learn: Consequences of Harassment Based on Actual or Perceived Sexual Orientation and Gender Non-Conformity and Steps for Making Schools Safer (2004). Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton, NJ: Princeton University Press, 2009). David L. Chambers and Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the Twentieth Century, 33 Family Law Quarterly, 1999-2000. George Chauncey, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (New York: Basic Books, 1994). George Chauncey, Why Marriage? The History Shaping Today’s Debate over Gay Equality (New York: Basic Books, 2004). George Chauncey, Martin Duberman, and Martha Vicinus, eds., Hidden From History: Reclaiming the Gay and Lesbian Past (NAL, 1989). George Chauncey, “From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female Deviance,” 58-59 Salmagundi 114-46 (Fall 1982-Winter 1983). George Chauncey, “Christian Brotherhood or Sexual Perversion? Homosexual Identities and the Construction of Sexual Boundaries in the World War One Era,” 19 Journal of Social History 189-211 (1985). George Chauncey, “The Postwar Sex Crime Panic,” in True Stories from the American Past (William Graebner edit., McGraw-Hill: 1993), pp.160-78.

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Roger Clawson, Preacher Raises Hell Over Homosexuals, The Billings Gazette, Sep. 2, 1970, at 1. Dudley Clendinin and Adam Nagourney, Out for Good: The Struggle to Build a Gay Rights Movement in America (New York: Simon & Schuster, 1999). Councilman Calls for Closing Night Club as Public Nuisance, The Hartford Courant, Nov. 16, 1969 at 42. John D’Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority, 1940–1970 (Chicago: University of Chicago Press, 1981). Empire State Coalition of Youth and Family Services, A Count of Homeless Youth in New York City (Empire State Coalition, 2008). Tanya Erzen, Straight to Jesus: Sexual and Christian Conversions in the Ex-Gay Movement (Berkeley: University of California Press, 2006). Lillian Faderman and Stuart Timmons, Gay L.A.: A History of Sexual Outlaws, Power Politics, and Lipstick Lesbians (New York: Basic Books, 2006). Estelle B. Freedman, “‘Uncontrolled Desires’: The Response to the Sexual Psychopath, 1920– 1960” 74 Journal of American History 83–106 (1987). Gay, Lesbian and Straight Education Network, The 2009 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nation’s Schools, (GLSEN, 2010). General Accounting Office, Military Personnel: Financial Costs and Loss of Critical Skills Due to DOD’s Homosexual Conduct Policy Cannot be Completely Estimated (2005). Richard Godbeer, Sexual Revolution in Early America (Baltimore: Johns Hopkins, 2002). Henkle v. Gregory, 150 F. Supp. 2d 1067 (D. Nev. 2001). The History Project, Improper Bostonians (Boston: Beacon Press, 1998). In re Benites, 37 Nev. 145 (1914). Jail Terms Urged for Offenders, The Hartford Courant, Sept. 21, 1957 at 3. Ron Jenkins, Henry signs measure on gay adoptions, The Associated Press State & Local Wire, May 4, 2004. David K. Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (Chicago: University of Chicago Press, 2004). Mark D. Jordan, The Invention of Sodomy in Christian Theology (Chicago: University of Chicago Press, 1997).

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Jonathan Ned Katz, Gay/Lesbian Almanac: A New Documentary (New York: Harper & Row, 1983). Lambda Legal, “Groundbreaking Legal Settlement is First to Recognize Constitutional Right of Gay and Lesbian Students to be Out at School & Protected From Harassment,” http://www.lambdalegal.org/news/ca_20020828_groundbreaking-legal-settlement-firstto-recognize, accessed June 27, 2012. Ruediger Lautmann, “The Pink Triangle: Homosexuals as ‘Enemies of the State,’” in Michael Berenbaum and Abraham J. Peck, eds., The Holocaust and History (Indiana, 2002). Eric Marcus, Making Gay History: The Half-Century Fight for Lesbian and Gay Equal Rights (2002). Martin Meeker, “Behind the Mask of Respectability: Reconsidering the Mattachine Society and Male Homophile Practice, 1950s and 1960s” 10 Journal of the History of Sexuality 78– 116 (2001). National Association for Research and Therapy of Homosexuality, “NARTH Position Statements,” http://narth.com/menus/positionstatements.html, accessed June 24, 2012. National Association for Research and Therapy of Homosexuality, “The Three Myths About Homosexuality,” http://narth.com/menus/myths.html, accessed June 24, 2012. The National Coalition of Anti-Violence Programs, Hate Violence Against Lesbian, Gay, Bisexual, and Transgender People in the United States, 2008 (National Coalition, 2009). Nat’l Gay & Lesbian Task Force, State Laws Prohibiting Recognition of Same-Sex Relationships (2009), available at http://www.thetaskforce.org/downloads/reports/ issue_maps/samesex_relationships_7_09.pdf. Pew Forum on Religion & Public Life, U.S. Religious Landscape Survey, February 2008. Richard Plant, The Pink Triangle: The Nazi War Against Homosexuals (New York: Holt, 1986). Question 2 Campaign Material, available at http://outhistory.org/wiki/File:Pro2mailer2002.jpg, 2002. Amy Ronner, “Bottoms v. Bottoms: The Lesbian Mother and the Judicial Perpetuation of Damaging Stereotypes,” 7 Yale J. L. & Feminism, 1995. Clifford J. Rosky, “Like Father Like Son: Homosexuality, Parenthood and the Gender of Homophobia,” 20 Yale J .L. & Feminism, 2009. Teemu Ruskola, “Minor Disregard: The Legal Construction of the Fantasy that Gay and Lesbian Youth Do Not Exist,” 8 Yale J. L. & Feminism 269, 1996.

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Servicemembers Legal Defense Network, About “Don’t Ask, Don’t Tell” (2011). Servicemembers Legal Defense Network, About the Servicemembers Legal Defense Network (2011). Julie Shapiro, “Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their Children,” 71 Indiana L. J. 71 623-627, 1996. Stan Simon, Homosexual Fights Driving Ban, The Hartford Courant, Nov. 6, 1970 at 17. US Department of Justice, Federal Bureau of Investigation, Hate Crime Statistics 1998; id, Hate Crime Statistics 2007. C. Todd White, Pre-Gay L.A.: A Social History of the Movement for Homosexual Rights (Urbana: University of Illinois Press, 2009). William H. Whitmore, A Bibliographical Sketch of the Laws of the Massachusetts Colony from 1630 to 1686 (Boston: Rockwell and Churchill, 1890).

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Exhibit 3

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice) PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050 CARLA CHRISTOFFERSON (pro hac vice) DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com Tel: 213.430.6000 | Fax: 213.430.6407 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com Tel: 702.784.5200 | Fax: 702.784.5252 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BEVERLY SEVCIK, et al., Plaintiffs, v. BRIAN SANDOVAL, et al., Defendants, and COALITION FOR THE PROTECTION OF MARRIAGE, Defendant-Intervenor. No. 2:12-CV-00578-RCJ-PAL DECLARATION OF NANCY F. COTT, PH.D. IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

27 28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.

I, Nancy F. Cott, Ph.D., hereby declare and state as follows: QUALIFICATIONS AND ENGAGEMENT 1. I am presently the Jonathan Trumbull Professor of American History at Harvard

University. In 1969, I received a master’s degree in History of American Civilization from Brandeis University. In 1974, I received a Ph.D. degree in History of American Civilization from Brandeis University. Since that time, I have researched and taught United States history. I taught for twenty-six years at Yale University, where I gained the highest honor of a Sterling Professorship, and in 2002, I joined the faculty at Harvard University. 2. I teach graduate students and undergraduates in the area of American social,

cultural, and political history, including history of marriage, the family, and gender roles. I also am the Pforzheimer Family Foundation Director of the Schlesinger Library on the History of Women in America, Radcliffe Institute for Advanced Study. 3. I have received numerous fellowships, honors and grants, from a John Simon

Guggenheim Memorial Foundation Fellowship in 1985 and National Endowment for the Humanities Fellowship in 1993, to a Fulbright Lectureship in Japan in 2001 and election to the American Academy of Arts & Sciences in 2008. 4. I am the author or editor of eight published books, including Public Vows: A

History of Marriage and the Nation (Harvard Univ. Press, 2000), the subject of which is marriage as a public institution in the United States. I also have published over twenty scholarly articles, including several discussing the history of marriage in the United States. I have delivered scores of academic lectures and papers over the past thirty-five years on a variety of topics, including the history of marriage in the United States. I also have served on many advisory and editorial boards of academic journals. My background, experience, and list of publications are summarized in my curriculum vitae, which is attached as Exhibit A to this Declaration. 5. I spent over a decade researching the history of marriage in the United States,

especially its legal attributes, obligations, and social meaning, before and while writing my book Public Vows: A History of Marriage and the Nation. The claims and evidence in this Declaration come principally from the research for that book and are more fully documented there and in an

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article based on that research, “Marriage and Women’s Citizenship,” which was published in American Historical Review in 1998. The numerous historical sources, legal cases, and government documents that I studied and analyzed while researching and writing the book, as well as the other scholars’ work that I consulted, are cited in my published footnotes in the book and article. In addition, I have supplemented my past research with more recent reading and research on matters referenced in this Declaration. In preparing to write this Declaration, I reviewed the Complaint in this case, Public Vows, “Marriage and Women’s Citizenship” and certain of the sources cited therein, and Nevada legal and historical records and other materials listed in the attached Exhibit B. I have also relied on my years of experience in this field, as set out in my curriculum vitae, and on the materials listed therein. 6. I have been retained by Plaintiffs’ counsel in connection with the above-referenced

litigation. I am being compensated for this effort at a flat rate of $1,000.00 for reports, $250.00 per hour for deposition testimony, and $1,000.00 per day for trial testimony. I also will be reimbursed for expenses in the event that I have to travel in connection with my services. My compensation does not depend on the outcome of this litigation, the opinions I express, or the testimony I provide. My opinions expressed herein are my true opinions as an expert in the history of marriage. I have actual knowledge of the matters stated in this Declaration and could and would so testify if called as a witness. 7. I reserve the right to supplement or amend this Declaration in consequence of

documents or other discovery that any party, or any entity or person (including other expert witnesses), has not yet produced or any witness testimony that has not yet been given. 8. In the past four years, I have submitted an expert report, been deposed as an

expert, or testified as an expert at trial in Dragovich v. U.S. Dep’t of the Treasury, 4:10-cv-01564CW (N.D. Cal.); Golinski v. Office of Personnel Management, 3:10-cv-0257-JSW (N.D. Cal.), Windsor v. U.S., 1:10-cv08435-BSJ-JCF (S.D.N.Y.), Pedersen v. Office of Personnel Management, 3:10-cv-01750-VLB (D. Conn.), Perry v. Schwarzenegger, 3:09-cv-2292-JW (N.D. Cal.), and Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, 1:09-cv-11156-JLT (D. Mass.).

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II.

SUMMARY OF FACTS AND OPINION 9. I have been asked for my expert opinion concerning the United States’ history of

marriage, including the purpose, meaning, and evolution of marriage in the U.S. My conclusions, based on my research and as set forth more fully in Section III herein, are as follows:  Marriage is not a fixed institution. In the United States, marriage has changed dramatically over time. It inherited and retained some essential characteristics from the English Common Law, including its basis in free consent of two parties, but in many other respects, marriage has changed significantly to meet changing social and ethical needs.  In the United States, marriage is both public and private. It is a public institution in that it is constituted by the state; its form and requirements are created by public authority, and it operates as systematic public sanction, bringing rights and benefits along with duties. At the same time, marriage signifies a freely-chosen relationship between two individuals and founds a private realm of individual liberty and familial intimacy. Marriage has a unique meaning. Nothing has the same meaning, significance, obligations, rights and benefits as marriage except for marriage itself.  Marriage in all the states of the United States has always been a civil matter, under the control of legislative and judicial authorities, rather than religious authorities. Religious authorities were permitted to solemnize marriages by acting as deputies of the civil authorities. They were never permitted to determine the qualifications for entering or leaving a marriage that would be valid at law, although they were free to determine what qualifications they would accept for religious validation.  Marriage in the United States has been defined and controlled at the state level, historically, in accord with premises established by the U.S. Constitution. Marriage has been shaped by legislators and judges in the various states to reflect and adjust to the changing needs of society and culture over time. Societal change over the centuries has produced new features in marriage that are commonly

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accepted today although they would have been unthinkable at the founding of the United States. Marriage has been a successful civil institution precisely because it has been flexible, not static. States have varied from one another in defining the basic elements of marriage, including whether or not ceremonies are required for validation, how spousal roles shall be defined and enforced, what other “race” may marry a “white” person, how marriage may be dissolved, and other issues. States’ variance today on validating marriage for couples of the same sex resembles and is parallel to the history of states’ divergences with respect to many other dimensions of marriage validity. Heated controversy often surrounded changes to the features of marriage on which state laws diverged in the past. The controversies today focusing on marriage between couples of the same sex, and state variance on the matter, resemble these past disagreements. The exclusion from marriage of same-sex couples stands at odds with the direction of historical change in marriage in the United States. Contemporary public policy assumes that marriage is a public good. Excluding some citizens from the power to marry, or marking some as unfit to be part of the national family on the basis of their marriage choice, is not in keeping with public policy regarding either the benefit of marriage or the rights of citizens. BASIS AND REASONS FOR OPINIONS A. 10. Significance of Marriage in American Society. Marriage is a capacious and complex institution – a paradoxical hybrid, combining

public and private, status and contract, governance and liberty. It has political, social, economic, legal, personal, and emotional contents, and meanings and consequences that operate in more than one arena. The idea that marriage is the “happy ending,” the marker of a relationship’s intimacy, a rite of passage signifying adult belonging, and the definitive expression of love, commitment, and family, is deeply ingrained in our society. It is reflected in and perpetuated through law, custom, literature, and even folk tales.

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11.

Since marriage is authorized by civil authorities in all of the United States, there

has always been a close relation between marriage and government. It is most visible in that each state sets forth the requirements for marriage eligibility, issuance of marriage licenses, solemnizing and dissolving marriages. State and federal governments’ special recognition of marriage appears in many forms, including the areas of immigration and citizenship, tax policy, and property rights. Each state affords myriad benefits, responsibilities, and rights to spouses. And, as the General Accounting Office reported in 1996, the corpus of federal law mentions more than 1,000 kinds of benefits, responsibilities, and rights connected with marriage. 12. Marriage thus is a bundle of rights, obligations, and benefits, but it also is much

more than that. Marriage has a legitimacy earned through many years of validation and institutionalization in law and society. Having been enhanced by government recognition for centuries, the state of being married always has been, and remains, a privileged and unparalleled status. 13. Marriage is a profound exercise of the individual freedom promised by the

American way of life. Legal marriage expresses and enhances individual freedoms because it is based on consent and freedom of choice. Mutual consent of the two parties always has been seen as essential to the marriage contract. The power to give such consent is the mark of the free person in possession of basic civil rights. This fact is most compellingly illustrated by the history of slavery in the United States. Slave marriages had no legal validity, most basically because slaves did not have the freedom to consent to the obligations of marriage, which their masters’ power could always overcome. B. 14. Development of American Marriage Law and Policy. From the beginning of the United States, marriage has been an institution

authorized and regulated by civil law. Each colony, state, and territory, including Nevada, enacted marriage laws and regulations among its very first founding legislation. These laws (often very detailed) were supreme over any religious views or practices of marriage, indicating

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each state’s wish to define the institution for its citizens and to use that means to create public order and social benefit.1 15. Marriage developed this way in the United States for several reasons. The Church

of England was in charge of marriages in England at the time of English colonization, but never succeeded in setting up an effective ecclesiastical authority in America. The arriving colonists practiced more than one religion. The great majority of colonists believed in the basic tenets of Christianity, but nonetheless intentionally established secular control over the making and breaking of marriages. When the United States was founded, it established itself as a nation of religious toleration, and all states established civil marriage. 16. For many, but not all, Americans, marriage is also invested with religious

significance, and the solemnization of marriages commonly takes religious form; nonetheless, marriage is and has always been governed by civil rather than religious authorities. Whether a marriage is recognized or not by a religion does not dictate its legality or validity. Religious authorities have been authorized to act as deputies of the civil authorities in performing marriage ceremonies, but not to determine the qualifications for entering or leaving a legally valid marriage. This is true nationally and in Nevada, where state law characterizes marriage as a “civil contract.” Nevada Compiled Laws: Supplement 1943-1949, 325 (1950) (“That marriage, so far as its validity at law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential.”); Clark v. Clark, 44 Nev. 44, 59-60 (1920) (“marriage is a civil contract”). 17. Marriage in all of the United States has always been a consent-based, voluntary

choice by the partners. But it is also a legal status conferred and controlled by the state. Although a marriage must be grounded in mutual consent, most states, like Nevada, require and prescribe a form for solemnization and set out the specific requirements for obtaining a marriage license. Nor can a marriage be ended simply by consent; the state controls the granting of divorce. The “Common law marriages” in which the marital relationship has not been licensed or legally formalized, but the parties themselves consent, hold themselves out as and live together as married, are recognized in some states but have been abolished in most. Nevada permitted common law marriage until 1943, when it changed its law to require solemnization of all marriages newly entered into after that date. See Nevada Compiled Laws: Supplement 19431947, 325 (1950).
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state prescribes the obligations as well as rights of marriage in its dual role as a party to and guarantor of the couple’s consent to wed. The state formally and legally transforms the status of couples who follow the appropriate marriage regulations, giving them a new legal standing and a distinctive set of obligations and rights pertaining to them as married persons. 18. Societies in various times and places have defined marriage in different ways.

Marriage is an institution of human culture and thus can vary as much as human cultures vary. What is seen as legitimate marriage in a given society may be, for instance, polygamous or monogamous, matrifocal or patrifocal, patrilineal or matrilineal, lifelong or temporary, open or closed to concubinage, divorce-prone or divorce-averse, and so on. 19. In the United States, the institution of marriage is a public/private hybrid. Its very

definition by civil law makes it a public institution that the state has authorized; it is also public in the sense that a couple makes vows publicly before a witness, and the state reciprocally guarantees to recognize the couple's new rights and obligations by granting them a marriage license. At the same time, marriage is the exercise of an individual liberty and the foundation of the private familial realm. C. 20. Purposes of Marriage Marriage in the United States has served numerous complementary purposes and

functions, the relative salience of which has changed over time. The private, subjective experience of “being married” may vary as much as individuals vary, but historians can certainly document how the institution of marriage has been defined by law, functioned and changed. Among the purposes that marriage and its regulation by civil authorities have served through American history are: to create stable households; to create public order and economic benefit; to legitimate children; to assign providers to care for dependents (including the very young, the very old, and the disabled) and thus limit the public’s liability to care for the vulnerable; to facilitate property ownership and inheritance; to shape the “people,” or to compose the body politic; and to facilitate governance (state regulation of the population). 21. In the interest of public order, state governments have bundled together legal

obligations with social rewards in marriage to encourage couples to choose committed

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relationships of sexual intimacy over transient relationships, whether or not these relationships will result in children. In the Anglo-American practice of several centuries ago that underlies our contemporary system, marriage was designed to be a regulatory institution that established recognizable household heads who would take economic responsibility for their dependents. In the early United States, state governments encouraged marriage (among the free white population) because maritally-organized households organized the broader population under male household heads and promised economic stability, both of which functions contributed to the common good. These benefits advantaged the state in the past when households more often included large numbers of people, as well as now, when most households and families are small. 22. Today, too, the purpose of the state in licensing and incentivizing marriage is to

create stable households in which the adults who reside there are committed to one another by their own consent and will support one another and any dependents they may have. 23. Over time, marriage has developed a social meaning in which the state places a

unique value on the couple’s choice to join in marriage, to remain committed to one another, to form a household based on their relationship, and to join in an economic partnership to support one another in the material needs of life. 24. The ability or willingness of couples to produce progeny has never been required

for or necessary to marriage under the law of any American state. For example, no state ever barred women past menopause from marrying or allowed a husband to divorce his wife because she was past childbearing age. Men or women known to be sterile have not been prevented from marrying. Nor could a marriage be annulled for an inability to bear or beget children. 25. In the past, widows and widowers remarried whenever a willing mate could be

found; although it was often clear that no children would result, marriage was nonetheless desirable because it produced the division of labor expected to undergird a well-functioning household. In our contemporary post-industrial economy, many divorced or widowed older adults marry when they are past childbearing age, usually for reasons of intimacy and stability. Ever since the 1920s, when birth control became available, sexual intimacy has been seen as separable from necessary reproductive consequences even for those of reproductive age. Since

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then – and even more commonly since contraception became more reliable and widely available in the 1960s – couples with no interest in or expectation of childbearing marry, and re-marry. 26. The notion that the main purpose of marriage is to provide an ideal or optimal

context for raising children was never the prime mover in states’ structuring of the marriage institution in the United States, and it cannot be isolated as the main reason for the state’s interest in marriage today. Nor is it historically correct to say that a biological link between parents and children is a necessary foundation for marriage or the principal or sole reason why marriage is good for society. 27. States’ marriage rules with respect to children have aimed more consistently at

supporting them than producing them. While having children was never a requirement, support for any child born or adopted into a family always has been an obligation of the household head. Today, it is a shared responsibility among the family, as much in the case of divorce or separation as in an intact marriage. Such rules have benefitted states by putting a critical limit on public responsibility for the young and the dependent. 28. Historically, marriage between the parents of a child was required for the child’s

“legitimacy.” Marriage drew the line between legitimacy and illegitimacy—a function that was particularly important among the propertied who were concerned about “legitimacy” in lines of inheritance. Today, parentage can be determined for all children regardless of their parents’ marital status, and both adoption and reproductive technology create parents apart from biology. The law requires all parents to support their children, regardless of the circumstances in which those children came to be and regardless of the parents’ marital status. D. 29. The Evolution of Marriage and Its Legal Meaning. Marriage in the United States has been a flexible rather than a static or immutable

institution. As with other successful civil institutions, marriage has evolved over time to reflect changes in society at large. Marriage has been a successful civil institution precisely because it has been flexible, not static. Adjustments in key features of marital roles, duties, obligations, and its rules of entry have been necessary to preserve the appeal and value of marriage in our dynamic society, and to meet social needs and promises.

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30.

Marriage rules have varied from state to state, and legislators and judges in every

state have changed those rules and interpretations significantly over time. Since the founding of the United States, different states have set, interpreted, altered and adjusted marriage terms and rules in response to local circumstances and preferences. Over time there have been many nontrivial differences in states’ laws on who was permitted to marry, what steps composed a valid marriage, what spousal roles should be, and what conditions permitted divorce. State marriage laws arose and responded to changes in the political and economic environment, religious forces, changes in the ethnic composition of a state’s residents, and many other local conditions. 31. Our country’s history reveals a number of striking and long-persisting episodes in

which marriage laws were used to discriminate among members of the populace, creating hierarchies of value and benefit, declaring some persons more worthy of the freedom, liberty, and privacy inherent in marriage rights than others. These laws created or enforced inequalities that were justified by their supposed naturalness while they existed; over time, however, these inequalities came to seem unwarranted and discriminatory – indeed, unconstitutional – because they defied the guarantee of equal protection of the laws. 32. Regional and cultural differences, as well as state legislators’ understandings of

their states’ interests, resulted in a patchwork quilt of marriage rules in the United States. Sometimes, as was the case with Nevada, states purposely distinguished their marriage rules from those of other states to compete in drawing population to their borders or with the intent to reap economic benefit for their own state. 33. As changes in marriage laws began to take place in the past, they were not readily

welcomed by everyone, and were difficult for some in society to accept. Indeed, many features of modern marriage that we take for granted today – such as the ability of both spouses to act as individuals, to marry someone of another race, or to divorce for numerous reasons – were fiercely resisted as they were coming into being, and were viewed by opponents as threatening to destroy the institution of marriage itself. 34. Three major areas of change over time illustrate ways that civil marriage has been

modified by the actions of courts and legislatures to adapt to societal changes, showing the

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resilience that has kept the institution of marriage vigorous and appealing: (a) spouses’ respective roles and rights; (b) racial restrictions; and (c) divorce. (i) 35. Spouses’ Respective Roles and Rights.

Since our country’s founding, marriage laws have undergone many significant

changes, in Nevada and elsewhere, to reflect modified societal views about the equality of the two sexes. Over time our country has moved to gender parity in marriage which would have been unthinkable to most Americans at the founding of the United States. 36. Under the Anglo-American common law, marriage gave very different roles and

legal rights to husbands and wives. The bargain of marriage as enshrined in early American statutes presumed and prescribed profound asymmetry and inequality in the respective roles and rights of husband and wife. 37. Historically, Anglo-American marriage law was based on the legal fiction that

married couples were a single entity, with the husband serving as the sole legal, economic, and political representative of that unit, and the woman’s identity merging into her husband’s. This doctrine of marital unity was called coverture, and reflected society’s views of the marital couple as a unit naturally headed by the husband. 38. Under coverture doctrine in American law, the wife had no separate legal or

economic existence. (That is why Ann Doe became Mrs. John Smith.) A married woman could not, under her own name, own or dispose of property, earn money, have a debt, sue or be sued, or enter into an enforceable agreement because her husband had to represent her in these things. Neither married partner could testify for or against the other in court – nor commit a tort against the other – because the two were considered one person. The two partners were assigned opposite economic roles understood as complementary: the husband was bound to support and protect the wife, and the wife owed her service and labor to her husband. Any property she owned before marriage became his. In community property states such as Nevada, unlike common law states, the wife retained title to her property, but coverture was reflected in the fact that the husband alone controlled management of that property and had the right to dispose of it; all community property was controlled solely by the husband until his death.

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39.

During the mid-1800s, the notion that married women could have no economic

personhood apart from their husbands began to clash with the realities of a developing society. In addition to arguments for married women’s individuality from an equal rights point of view, functional economic arguments for change were persuasive to many. The static rural economy in which the coverture doctrine had arisen had begun to give way to a dynamic market economy. While coverture defined the roles of the two spouses as absolutely different, in practice the tasks of husband and wife often overlapped. Wives needed, and began to demand, rights to their own property and earnings, and legislators and husbands too could see advantages in wives being able to hold property in their own names. Judges and legislators saw the societal advantages in keeping families supported on both spouses’ assets rather than the husband’s only. If a wife had separate property, that could keep a family solvent if a husband’s creditors sought his assets. If wives could keep their earnings, then women married to profligate husbands would be able to support their children, and reduce pressure on the public purse for economic relief. 40. The property basis of coverture, which had been in place for hundreds of years and

understood as absolutely essential to marriage, was nonetheless eliminated by all the states, over an extended period of time. Far from viewing marriage as immutable, courts and legislatures altered marriage fundamentally in order to take account of societal needs and spouses’ evolving relationships within their households and in the larger society. 41. In several waves of statutory reform between the 1830s and the mid-twentieth

century, states replaced the common law understanding of marriage with their own detailed and evolving provisions about the economic competence of married women. The timing and content of individual state actions depended on local conditions. 42. The unseating of coverture was a protracted process, because it involved revising

the gender asymmetry in the marital bargain. The assumption that the husband was the provider, and the wife his dependent, did not disappear as soon as the wife became legal owner of her own property and wages earned outside the home. As late as the mid-twentieth century, the hand of the past showed itself most with regard to the wife’s household labor, traditionally seen as her husband’s domestic right. A legal writer in the 1930s noted that “the courts have jealously

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guarded the right of the husband to the wife’s services in the household,” as part of the legal definition of marriage. Judges saw the wife’s service as a necessary corollary to the husband’s asymmetrical obligation of support; every state legally obliged the husband to his wife but not vice-versa.2 43. Over a century, repeated law-making in every state incrementally eliminated the

property basis of coverture and replaced it with myriad state laws. Community property states – always seen as allowing a more equal bargain between spouses than common-law states – later came to see the spousal inequalities in their marital property requirements. Nevada changed its law in 1959 to reflect equality of interest in marital property between husband and wife, and current Nevada law acknowledges equity between spouses in control and ownership of community property. 1959 Nev. Stat., ch. 298, at 408; Nev. Rev. Stat. § 123.230. 44. The evolution of gender neutrality in marriage beyond the ownership and control

over property occurred over time through legislative developments and case holdings. During the 1970s, repeated successful challenges to sex discrimination in state laws had profound effects on domestic relations. Although the strenuous campaign to put an Equal Rights Amendment into the U.S. Constitution failed, states passed their own Equal Rights Amendments, which led toward gender neutrality in marriage and divorce reform. In divorce, for example, as in other aspects of family law today, gender neutrality in roles and decision-making is the premise. Obligations of the two spouses upon marital dissolution used to be assigned by gender, and they were asymmetrical: the husband was responsible for the economic support of any dependent children, while courts gave the mother a strong preference for custody. Under current divorce laws, in contrast, both parents of dependent children have responsibility for economic support and for childrearing; gender neutrality is the judicial starting point for post-divorce arrangements. 45. For couples who consent to marry today, marriage has been transformed from an

institution rooted in gender inequality and prescribed spousal roles to one in which the contracting parties decide on appropriate behavior toward one another, and the legal obligations
2

The laws requiring husbands’ support – although by no means wholly effective inside marriage or out – had consequences in marital roles, in the spouses' relative power, and in the labor market (disadvantaging married women seeking employment), as well as having coercive force over husbands, who could be thrown in jail for nonsupport.
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and benefits of the spouses do not depend on their sex. The two partners in a marriage are still economically and in other ways bound to one another by law. But the law no longer assigns asymmetrical roles to the two spouses. These changes reflect the modern view of marriage as an arrangement between two equal and consenting parties who have freely chosen one another. 46. Courts and legislatures have changed laws governing the meaning and structure of

marriage to keep it current with the time. The gender equality of marriage today would profoundly shock any American from the era of the American Revolution or the Civil War. But, they would recognize in contemporary marriage the institution’s foundation in two consenting parties freely choosing one another. (ii) 47. Marriage across the Color Line. A major example of state variation in marriage law is the criminalization,

nullification, and voiding of marriages that crossed a “racial” or color line. This is a chequered history, not at all confined to the American South. The first such laws were passed in the Chesapeake colonies, but most slaveholding states before the Civil War relied on the regime of slavery itself, more than marriage bans, to prevent legitimate marriage between whites and blacks. Because slaves lacked basic civil rights (i.e., the right to body, liberty and property), states regarded them as also lacking the ability to consent validly to marriage. Furthermore, marriage obliged those undertaking it to fulfill certain duties defined by the state; a slave’s prior and overriding obligation of service to the master made carrying out the duties of marriage impossible. 48. Following the abolition of slavery, state legislators strengthened bars to marriage

across the color line. Ten states enacted new laws that voided or criminalized marriage between blacks and whites, eight others strengthened their similar laws, and still others kept theirs in place. Enforcement of these laws usually occurred at the point of obtaining a marriage license. 49. Also around the time of the Civil War, fear and furor over immigration from China

arose in the western United States. The territorial legislature of Nevada in 1861 first named "Chinese" as a group who were prohibited from marrying whites. Soon five Western states (including Nevada) added Indians, Chinese and “mongolians” to those (Negro and mulatto)

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already prohibited from marrying whites. As theories of “race” continued to develop, laws using racial designations to ban and criminalize certain marriages became more complex, especially the Western states. As many as 41 states and territories of the U.S. banned, nullified, or criminalized marriages across the color line for some period of their history, often using “racial” classifications that are no longer recognized. 50. These laws varied widely across the states. New England was less avid in

preventing these marriages than other regions; Vermont, New York, and Connecticut never had such laws, but Massachusetts, Rhode Island, and Maine did, early in their histories. 51. Many states had complicated histories on this issue, legislating repeatedly and

differently over the decades. Some imposed outsize punishments: Alabama, for example, penalized marriage, adultery, or fornication between a white and “any negro, or the descendant of any negro to the third generation,” with hard labor of up to seven years. Some states (especially in the West) expanded the categories of groups whose marriage to whites was prohibited. As the historian Peggy Pascoe has shown (WHAT COMES NATURALLY, at 119): “In one state or another, all of the following groups were prohibited from marrying Whites: Negroes, Mulattoes, Quadroons, Octoroons, Blacks, Persons of African Descent, Ethiopians, Persons of Color, Indians, Mestizos, Half-Breeds, Mongolians, Chinese, Japanese, Malays, Kanakas, Coreans, Asiatic Indians, West Indians, and Hindus.” 52. Nevada , in its original territorial laws in 1861, made it a criminal offense (with a

mandatory prison term of at least one year) for marriage or cohabitation to occur between, and for someone to solemnize the marriage of any "white man or woman" with any "black person, mulatto, Indian, or Chinese." In 1912, Nevada added even more prohibited categories, making its law the most racially comprehensive in the nation (but then in 1919 removed the category of native Americans from the ban). 1912 Rev. Laws of Nev., Vol. 2, at 1869; 1919 Nev. Stat., ch. 72, at 124. 53. Legislators often justified the laws criminalizing marriage across the color line by

saying that such marriages were against nature or against the Divine plan, much as opponents of same-sex marriage argue today. They contended that permitting cross-racial couples to marry

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would fatally degrade the institution of marriage. To the white legislators who passed these laws, only marriage to other whites qualified as “natural.” 54. Whatever the high-flown rhetoric surrounding them, however, these bars to

marriage served to deny public approval to intimate relationships between whites and persons of color. By preventing such a relationship from ever gaining the status of marriage, legislators sought to delegitimize the relationship altogether. In parallel fashion, preventing legal recognition of a relationship between a couple of the same sex (either at the state or federal level) functions to discredit that relationship. 55. While these laws did not completely exclude anyone from entering marriage, they

deeply constrained free choice of marital partner. Couples in love across the color line had to settle for the dangerous status of informal marriage (which was also criminal in Nevada and many other states, and lacked respect in their communities), or, alternatively, marrying someone other than the person they loved. 56. These laws expressed state preferences at the time. In 1930, laws in thirty states

still nullified and punished marriage between whites and black, and many of them, like Nevada's law, treated marriage between whites and Asians the same way. As a result, marriage was the most criminalized form of race-related conduct at the time. 57. Social and legal views on this question changed slowly and haltingly during the

twentieth century, although racially-based marriage bans continued. They continued to be justified on now-discredited grounds. For example, legislators often said that such prohibitions mirrored what nature or God dictated, and were necessary to prevent “corruption” of the institution of marriage. 58. A major shift of opinion occurred in the wake of World War II, which had

stimulated an emphasis on cultural and religious pluralism as a national value in the United States. In 1948, the Supreme Court of California, where marriages between whites and either blacks or Asians had been prohibited for almost a century, was the first state high court to hold that race-based restrictions on marriages were unconstitutional. The Court struck down racebased restrictions on choice of spouse, holding that legislation addressing the right to marry “must

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be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws.” Perez v. Sharp, 32 Cal.2d 711, 715 (1948). 59. Over the next two decades, more than a dozen other states eliminated their own

race-based bars to marriage, spurred, to be sure, by the civil rights movement’s impact on Americans’ racial views. In 1959, Nevada repealed its laws prohibiting interracial marriage. 1959 Nev. Stat., ch.193, at 216. 60. Eventually, a challenge to Virginia’s 1924 law (which made marriage between a

white and a non-white person a felony) led the Supreme Court of the United States to affirm freedom of choice of spouse regardless of race in Loving v. Virginia, 388 U.S. 1 (1967). This ended the nearly 300-year history of race-based legislation on marriage. 61. Today, virtually no one in the United States questions the legal right of individuals

to choose a marriage partner without government interference based on race. In Nevada in 200810, more than a quarter of new marriages were cross-racial, the highest rate in the nation except for Hawaii.3 A prohibition long embedded in laws and concepts of marriage in Nevada and the majority of the United States has been entirely eliminated. (iii) Divorce. 62. Legal and judicial views of divorce likewise have evolved to reflect society’s view

of marriage as an embodiment of choice and consent, in which the marriage partners decide themselves what is an appropriate enactment of their marital roles. 63. Divorce was possible in some of the English colonies and was introduced in

several states immediately after the American Revolution. Within several decades most states and territories allowed divorce, albeit under extremely limited circumstances. Divorce grounds initially involved only such breaches of the marriage as adultery, desertion, or conviction of certain crimes. Grounds such as cruelty appeared later, in the mid-nineteenth century. Nevada's initial law stipulated divorce grounds typical in 1861 when it was passed: impotence, adultery,
3

Pew Research Center report, released February 16, 2012 , "The Rise of Intermarriage: Rates, Characteristics Vary by Race and Gender," by Wendy Wang, Appendix 2. http://www.pewsocialtrends.org/2012/02/16/the-rise-of-intermarriage/7/#appendix-2-state-andregional-rates accessed 8-30-2012.
Appendix – Page 96

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willful desertion, felony conviction, habitual drunkenness, extreme cruelty, husband's neglect to provide. 64. Divorce began as (and long remained) an adversary proceeding; that is, one spouse

had to accuse the other of committing a wrong against the marriage. The essence of divorce was that one of the partners had broken the social and legal contract embodied in marriage and set by the state. The guilty party’s fault was a fault against the state, as well as against his or her spouse. 65. Like other early marriage rules, early divorce laws presupposed different and

asymmetrical marital roles for husband and wife. For instance, desertion by either spouse was a ground for divorce, but failure to provide was a breach that only the husband could commit. In court, a wife seeking divorce had to show that she had been a model of obedience and service to her husband in order to succeed in her petition. 66. Over time, divorce became more easily obtainable as state legislation expanded the

grounds for it, while courts were still required to find one of the parties to be at fault. The expansion of grounds for divorce was hotly debated, and fiercely opposed in some quarters, throughout the nineteenth century. Critics viewed divorce as antagonistic to the institution of marriage. Major religions opposed divorce entirely, or accepted adultery as the sole justification for divorce. 67. Alarmist critics were sure that liberalized treatment of divorce would undermine

the marital compact entirely. As some states expanded their grounds for divorce in response to local circumstances, extreme differences among them arose. For example, South Carolina permitted no divorces until the late 1940s, and New York granted divorce for adultery only until the 1960s. Nevada went in the opposite direction, becoming the state most generous in granting divorce. The significant differences among states’ provisions caused great alarm about “migratory” divorce (i.e., couples traveling from their home state to a more lenient jurisdiction such as Nevada) and this possibility was attacked as a pernicious evil. 68. Beginning in the early 1900s, Nevada enacted increasingly liberal divorce laws. In

the 1910s and 1920s, Reno and Las Vegas began building a tourist economy by publicizing Nevada’s divorce laws. Despite heated controversy concerning divorce throughout the nation,

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Nevadans reemphasized its own latitude, with especially lenient residency requirements and no restrictions on remarriage. In 1927, Nevada reduced its residency requirement for divorceseekers to three months. Then, in 1931, it reduced the residency requirement further to only six weeks, besides expanding grounds for divorce and requiring virtually no proof, thus becoming the most liberal venue for obtaining a divorce in the nation. Reno and Las Vegas fueled the state's economy by marketing nation-wide the availability there of quick and easy divorce, as well as quick and easy marriage. 69. In 1967, Nevada adopted incompatibility as an additional ground for divorce,

essentially creating no-fault divorce in the state. This was the beginning of a trend, formally visible when in 1969, California enacted the nation’s first complete no-fault divorce law, removing consideration of marital fault from the grounds for divorce, awards of spousal support, and division of property. (The American bar had led this reform, since many divorce lawyers had been troubled for decades that the adversary or 'fault' principle often led to cursory fact-finding hearings and even fraud upon the court by colluding spouses seeking to separate.) 70. The enactment of no-fault divorce was soon embraced nationally as a means of

dealing honestly with marital breakdowns, achieving greater equality between men and women within marriage, and advancing further the notion of consent and choice as to one’s spouse. By 1977, all but three U.S. states had adopted some form of no-fault divorce, reflecting society’s view that both parties' consent should persist through a marriage, and that the couple themselves were the best judges of the sufficiency of their performance of marital roles. 71. The liberalization of divorce that took place in the twentieth century vastly

changed the institution of marriage as it had been known and experienced in earlier centuries. The state, through the courts, today still retains a strong role in the ending of marriages (since post-divorce terms of support must have court approval to be valid), but the move to no-fault divorce showed a major shift toward enabling spouses to set their own marriage goals and to determine how well those goals were being met. 72. In divorce, as in other aspects of family law today, the law promotes gender

neutrality, including as to custody and obligations of alimony and child support. Previously,

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when a marriage broke up, the father was responsible for the economic support of any dependent children, while courts gave the mother a strong presumption for custody of young children. Under current divorce laws, in contrast, both parents of dependent children have responsibility both for economic support and for childrearing. Gender neutrality is the judicial starting point for post-divorce arrangements, including alimony, in consequence of an equal protection challenge to the gender asymmetry of earlier alimony provisions (See Orr v. Orr, 440 U.S. 268 (1979).) E. 73. Marriage Today. Marriage has lasted as well as changed throughout the centuries. Marriage retains

its basis in voluntary consent, mutual love and support, and economic partnership. The changes in marriage observable over time, as illustrated above, have all been in the direction of increasing equality of the partners, gender-neutrality of marital roles, and control of marital role definition and satisfaction by the marriage partners themselves rather than by state prescription. 74. Among the many other striking changes in American marriage laws over time, in

addition to the changes discussed above, the states have removed most criminal restrictions on extramarital or nonprocreative sexual activities; the law no longer treats men who conceive children out of wedlock as non-parents; children are not formally deemed “bastards” or “illegitimates” at law if born out of wedlock; issues of custody and visitation have been separated from marital misconduct unrelated to childrearing; and the age for entry into marriage has generally risen. 75. Marriage has evolved into a civil institution through which the state formally

recognizes and ennobles individuals’ choices to enter into long-term, committed, intimate relationships. In Nevada, and elsewhere, marital relationships are founded on the free choice of two individuals and their continuing mutual consent to stay together. 76. Nevada, along with other states, has eliminated gender-based rules and distinctions

relating to marriage in order to reflect contemporary views of gender equality and to provide fundamental fairness to both marriage partners. Nevada law treats men and women without regard to sex and sex-role stereotypes – except in its statutory and constitutional requirements that men may only marry women and women may only marry men.

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77.

Nevada law expressly limits marriage to one man and one woman. See Nev. Rev.

Stat. § 122.020. By ballot initiative approved by voters in 2000 and 2002 during the general election, Nevada amended its Constitution to define marriage as the union of one man and one woman. Nev. Const. art. 1, § 21. (“Only a marriage between a male and female person shall be recognized and given effect in this state.”). This sex-based requirement is out of step with the gender-neutral approach of contemporary marriage law. 78. In 2009, the Nevada Legislature enacted the Nevada Domestic Partnership Act,

which allows eligible couples, either of the same sex or different sex, to register with the state as domestic partners. Nev. Rev. Stat. §§ 122A.100, 122A.010, et seq. This law provides registered domestic partners with comprehensive rights and responsibilities under state law, comparable to the rights and responsibilities of married couples. Significantly, civil union and domestic partnership laws such as Nevada’s are a recent phenomenon. Never before the 21st century in any of the United States have states created such a separate legal status for couples, or means of obtaining comprehensive legal rights and responsibilities comparable to marriage. 79. The exclusion of same-sex couples from equal marriage rights stands at odds with

the direction of historical change in marriage in the United States. Other uses of marriage restrictions to discriminate between and among groups of citizens in their freedom to marry partners of their choice have been eliminated. Contemporary public policy assumes that marriage is a public good. Depriving some citizens of the power to marry the one whom they love – or marking some citizens as unfit to join the national family because of their choice of loved one – is not in keeping with public policy regarding either the benefit of marriage or the rights of citizens. IV. CONCLUSION 80. Despite the creation of alternative legal statuses for couples of the same sex, no

other means of recognizing a freely-chosen intimate relationship has the same meaning, status, significance, and benefits as marriage. 81. Throughout American history, state legislatures and courts have made and altered

laws governing the meaning and structure of marriage. Restrictions on marriage that were seen as necessary in their time have since been removed as unwarranted and/or unconstitutional.

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Exhibit A

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NANCY F. COTT ncott@fas.harvard.edu Jonathan Trumbull Professor of American History, Harvard University, and Carl and Lily Pforzheimer Foundation Director of the Schlesinger Library on the History of Women in America, Radcliffe Institute for Advanced Study Department of History 35 Quincy St. Harvard University Cambridge MA 02138 tel. 617-495-3085

Schlesinger Library 10 Garden St. Cambridge MA 02138 tel. 617-495-8647

EDUCATION: Ph.D. 1974, in History of American Civilization, Brandeis University. M.A. 1969, in History of American Civilization, Brandeis University. B.A. l967, magna cum laude in History, Cornell University. TEACHING APPOINTMENTS: Harvard University: Jonathan Trumbull Professor of American History, and Carl and Lily Pforzheimer Foundation Director of the Schlesinger Library, Radcliffe Institute for Advanced Study, 2002— 1979-86; Professor, 1986-90; Chair of Women's Studies Program, 1980-1987, 1992-93; Chair of American Studies Program, 1994-97; Stanley Woodward Professor of History and American Studies, 1990--2000; William Clyde DeVane Professor, spring 1998; Sterling Professor of History and American Studies, 2001. Boston Public Library, NEH Learning Library Program, Lecturer, 1975. Wellesley College: Instructor of History, part-time, 1973-74. Clark University: Instructor of History, part-time, 1972. Wheaton College: Instructor of History, part-time, 1971. HONORS, FELLOWSHIPS AND GRANTS: Mary L. Cornille Distinguished Visiting Professor in the Humanities, Wellesley College, 2012. American Academy of Arts & Sciences elected member, 2008-Centre d'etudes nord-americaines, Ecole des Hautes Etudes en Sciences Sociales, Paris: French-American Foundation Chair, 2003-04. Fulbright Lectureship Grant (Japan-U.S. Educational Commission), July 2001. Center for Advanced Study in the Behavioral Sciences, Stanford CA, 1998-99, 2008-09. Radcliffe College Alumnae Association Graduate Society Medal, 1997. Visiting Research Scholar, Schlesinger Library, Radcliffe College, 1991, 1997. National Endowment for the Humanities Fellowship, 1993-94. Liberal Arts Fellowship in Law, Harvard Law School, 1993-94, l978-79,. A. Whitney Griswold grant (Yale Univ.), 1984, 1987, 1988, 1991, 1993, 2000. American Council of Learned Societies Grant-in-Aid, 1988. Charles Warren Center Fellowship, Harvard University, l985. John Simon Guggenheim Memorial Foundation Fellowship, l985. Fellow, Whitney Humanities Center, Yale University, l983-84, 1987. Radcliffe Research Scholarship, Spring l982. Rockefeller Foundation Humanities Fellowship, l978-79. Phi Beta Kappa, l966; Phi Kappa Phi, l967. PUBLICATIONS: BOOKS Public Vows: A History of Marriage and the Nation (Harvard U. Press, 2000). No Small Courage: A History of Women in the United States, editor (Oxford U. Press, 2000). Root of Bitterness: Documents of the Social History of American Women, revised edition, coeditor with

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Jeanne Boydston, Ann Braude, Lori D. Ginzberg, and Molly Ladd-Taylor, Northeastern U. Press, 1996) A Woman Making History: Mary Ritter Beard Through Her Letters (Yale U. Press, 1991). The Grounding of Modern Feminism (Yale U. Press., 1987). A Heritage of Her Own: Towards a New Social History of American Women, coeditor with E. H. Pleck (Simon & Schuster, l979). The Bonds of Womanhood: 'Woman's Sphere' in New England, l780-l835 (Yale U. Press, 1977; 2d ed. with new preface, 1997). Root of Bitterness: Documents of the Social History of American Women (E.P.Dutton, l972) PUBLICATIONS: ARTICLES "Revisiting the Transatlantic 1920s: Vincent Sheean vs. Malcolm Cowley," American Historical Review, forthcoming February 2013. "The Public Stake," in Just Marriage, Mary Lynn Shanley et al., (NY, Oxford U Press, 2004), 33-36. “Public Emblem, Private Realm: Family and Polity in the United States,” in Democratic Vistas, ed. Anthony Kronman, (New Haven, Yale U. Press, 2004). “Women’s Rights Talk,” American Studies in Scandanavia 32:2 (2000), 18-29. "Marriage and Women's Citizenship in the United States, 1830-1934," American Historical Review 103:5 (Dec. 1998), 1440-74. "Justice for All? Marriage and Deprivation of Citizenship in the United States," in Justice and Injustice, Amherst Series in Law, Jurisprudence & Social Thought, ed. Austin Sarat (Ann Arbor, U. Mich, 1996). "'Giving Character to Our Whole Civil Polity': Marriage and State Authority in the Late Nineteenth Century," in U.S. History as Women's History, ed. Linda Kerber et al. (Chapel Hill, U.N.C., 1995). "Early Twentieth-Century Feminism in Political Context: A Comparative Look at Germany and the United States," in Suffrage & Beyond, ed. Caroline Daley and Melanie Nolan (Auckland, NZ, Auckland U.P., 1994). "The Modern Woman of the 1920s, American Style," in La Storia Delle Donne, vol. V, Francoise Thebaud, ed., G. Laterza & Figli (Italy), 1992 (also French, Dutch, Spanish and U.S. editions). "Two Beards: Coauthorship and the Concept of Civilization," American Quarterly, 42:2 (June 1990). "Historical Perspectives: The Equal Rights Amendment in the 1920s," in Conflicts in Feminism, ed. Marianne Hirsch and Evelyn Fox Keller (N.Y., Routledge, 1990). "On Men's History and Women's History," in Meanings for Manhood: Constructions of Masculinity in Victorian America, ed. Mark Carnes and Clyde Griffen (Chicago, U. Chicago Press, 1990). "Across the Great Divide: Women's Politics Before and After 1920," in Women, Politics, and Change, ed. Louise Tilly and Patricia Gurin (N.Y.,Russell Sage Foundation, 1990); revised and reprinted in One Woman, One Vote: Rediscovering the Woman Suffrage Movement, ed. M. Wheeler (NewSage, 1995). "What's in a Name? The Limits of Social Feminism or, Expanding the Vocabulary of Women's History," Journal of American History, 76:3 (December 1989). "The South and the Nation in the History of Women's Rights," in A New Perspective: Southern Women's Cultural History from the Civil War to Civil Rights, ed. Priscilla C. Little and Robert C. Vaughan (Virginia Foundation for the Humanities, Charlottesville, 1989). "Beyond Roles, Beyond Spheres: Thinking about Gender in the Early Republic," with Linda Kerber et al., William and Mary Q., 3d ser., 46 (July 1989). "Women's Rights: Unspeakable Issues in the Constitution," The Yale Review, 77:3 (Spring 1988), 38296. "Feminist Theory and Feminist Movements: The Past Before Us," in What is Feminism? ed. Juliet Mitchell and Ann Oakley (Oxford, Basil Blackwell, l986, and N.Y., Pantheon, 1986). "Feminist Politics in the l920s: The National Woman's Party," Journal of American History, 71 (June 1984). "Passionlessness: An Interpretation of Anglo-American Sexual Ideology, 1790-l840," Signs: A Journal of Women in Culture and Society, 4 (1978).

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"Notes Toward an Interpretation of Antebellum Childrearing," The Psychohistory Review 6 (Spring 1978). "Eighteenth-Century Family and Social Life Revealed in Massachusetts Divorce Records," Journal of Social History, 10 (Fall l976). "Divorce and the Changing Status of Women in 18th-Century Massachusetts," William and Mary Quarterly, 3rd ser., 33 (October 1976). "Young Women in the Second Great Awakening in New England," Feminist Studies, 3 (Fall 1975). PUBLICATIONS: MISCELLANY “Introduction,” Feminists Who Changed America, 1963-75, ed. Barbara Love (U. of Illinois Press, 2006). "Afterword," Haunted by Empire: Geographies of Intimacy in North America, ed. Ann Laura Stoler, (Duke Univ. Press, 2006). "Janet Flanner," in Notable American Women: Completing the Twentieth Century (Cambridge, Harvard Univ. Press, 2005). Co-editor with Drew Gilpin Faust, The Magazine of History, special issue on Gender History, March 2004. "Considering the State of U.S. Women's History," with others, Journal of Women's History 15:1 (2003). "Response," to "Books in Review: Public Vows: A History of Marriage and the Nation," The Good Society, 11:3 (2002), 88-90. “The Great Demand,” in Days of Destiny, ed. James MacPherson and Alan Brinkley, Society of American Historians (Agincourt Press, 2001). Introduction to Jane Levey’s “Imagining the Postwar Family,” Journal of Women’s History, Fall 2001. "Mary Ritter Beard," in American National Biography (Oxford U. Press, 1999). "Challenging Boundaries: Introductory Remarks," Yale Journal of Law and Feminism 9 (1997). "A Conversation with Eric Foner," culturefront 4:3 (Winter 1995-96). "Bonnie and Clyde," in Past Imperfect: History and the Movies, ed. Mark Carnes (N.Y., Henry Holt, 1995). "Privacy"; "Domesticity"; "Mary Ritter Beard"; in A Companion to American Thought, ed. Richard Wightman Fox and James Kloppenberg (Cambridge, Basil Blackwell, 1995). "Charles A. Beard and Mary Ritter Beard," The Reader's Companion to American History, ed. Eric Foner and John Garraty, 1991. "Comment on Karen Offen's 'Defining Feminism: A Comparative Historical Approach,'" Signs: Journal of Women in Culture and Society, 15:11 (1989). Editorial, Special issue of Women's Studies Quarterly, XVI:1/2 Spring/(Summer 1988), "Teaching the New Women's History." Introduction to A New England Girlhood by Lucy Larcom (Boston, Northeastern U. Press, 1985). "Women as Law Clerks: Memoir of Catherine G. Waugh," in The Female Autograph, New York Literary Forum, 12-13 (l984). Afterword to Sarah Eisenstein, Bread and Roses, ed. Harold Benenson (London, RKP, 1983). "Mary Ritter Beard," in Notable American Women: The Modern Period (1980). PUBLICATIONS: REVIEW ESSAYS "Adversarial Invention," American Quarterly, 47:2 (June 1995). "Patriarchy in America is Different," American Bar Foundation Research Journal, 1987:4 (Fall 1987). "Women and the Ballot," Reviews in American History, 15:2 (June 1987). "The House of Feminism," New York Review of Books, 30 (March 17, 1983). "The Confederate Elite in Crisis: A Woman's View," The Yale Review, 71 (Autumn 1981). "Liberation Movements in Two Eras," American Quarterly, 32 (Spring 1980). "Abortion, Birth Control, and Public Policy," The Yale Review, 67 (Summer 1978).

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PUBLICATIONS: REVIEWS in American Historical Review, American Prospect, Boston Globe, Business History Review, Intellectual History Newsletter, International Labor and Workingclass History, Journal of American History, Journal of Interdisciplinary History, New Mexico Historical Review, New York Times Book Review, Pacific Studies, Signs: A Journal of Women in Culture and Society, The Times Literary Supplement, Women's History Review, and The Yale Review. PUBLICATIONS: EDITORIAL PROJECTS General editor, The Young Oxford History of Women in the United States, 11 volumes, Oxford University Press, 1994. Editor, History of Women in the United States, 20 volumes (article reprint series), K.G. Saur Publishing Co., 1993-94. Guest Editor, special issue of Women's Studies Quarterly, XVI:1/2 (Spring/Summer 1988), on "Teaching the New Women's History." OTHER PROFESSIONAL ACTIVITIES: GRANT PROJECTS: Dissertation seminar in gender history for graduate students, Mellon Foundation, 2002. Steering Committee, Ford Foundation Project on Women and Gender in the Curriculum in Newly-Coeducational Institutions, 1985-90. Principal Investigator, National Endowment for the Humanities Implementation Grant, "Strengthening Women's Studies at Yale," l983-86. Principal investigator, National Endowment for the Humanities Pilot Grant to Women's Studies, Yale University, l98l. ACADEMIC JOURNALS AND REFERENCE WORKS: American National Biography, senior editor, 1989-98. American Quarterly, editorial board, l977-l980. Feminist Studies, associate editor, l977-85, editorial consultant, 1985-97. Gender and History, advisory board, 1987-92; editorial collective, 1993-96. Journal of American History, editorial board, 1996-99. Journal of Social History, editorial board, l978-. Journal of Women's History, editorial board, 1987-98. Notable American Women, volume 5, advisory board, 1999-04. Orim: A Jewish Journal at Yale, editorial board, l984-88. The Readers' Encyclopedia of American History, advisory board, 1989-91. Reviews in American History, editorial board, 1981-85. Women's Studies Quarterly, editorial board, 1981-94. Yale Journal of Law and the Humanities, advisory board, 1988-2001. The Yale Review, editorial board, 1980-88, 1991-99. SERVICE IN PROFESSIONAL ORGANIZATIONS: American Historical Assocation, delegate to American Council of Learned Societies, 2008-12 Society of American Historians, Executive Board, 2006-Elected member: American Antiquarian Society, Massachusetts Historical Society, Society of American Historians. Organization of American Historians: Merle Curti Prize Committee, 2008; Binkley-Stephenson Prize Committee, 1987-1990 (chair, 1988); elected member of Nominating Committee, 1993-95 (Chair, 199495); elected member of Executive Board, 1997-2000; OAH Lecturer, 1997--. Berkshire Conference of Women Historians: Co-Chair, Eighth Berkshire Conference on the History of Women (1990).

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American Studies Association: Nominating Committee, l98l-84; National Council, 1987-90; American Quarterly Review Committee, 1989. ACADEMIC ADVISORY BOARDS: The Museum of Women/The Leadership Center, N.Y. State, (chair of historians’ advisory board) 2000--. Princeton University Program in Women's Studies, l985-2001. Project on Gender in Context, Mt. Holyoke College, l982-83. The Correspondence of Lydia Maria Child, 1977-80. Schlesinger Library on the History of Women, Radcliffe College, 1977-80. AUDIOVISUAL MEDIA PROJECTS: Advisory Board, 888 Film Project, “Left on Pearl,” 2006--. Advisory Board, Women 2.0 Summit, 2007. Advisory Board, Blueberry Hill Productions Ten Stories Project, 2005-WGBH documentary proposal on the History of Marriage in America, Principal consultant, 2002. Institute on the Arts and Civic Dialogue, Affiliated Scholar, American Repertory Theatre and W.E.B. DuBois Institute, summer 1999. Margaret Sanger film project (by Bruce Alfred), Consultant, 1994—96, "One Woman, One Vote: The Struggle for Woman Suffrage in the U. S.," Advisory Board, Educational Film Center, 1991-95. "The American Experience," Advisory Board, WBGH-TV, Boston, MA, 1986--90. Consultant, "Mary Silliman's War," film by Steven Schechter, 1987. Consultant, "Lowell Fever," film by Made in U.S.A., Inc. 1985-87. "Legacies: Family History in Sound," radio course on the history of women and the family in the U.S., Advisory Board, l984-86. Connecticut Public Radio series, "Choices"/Everyday History, Radio Programs for Children 8 to 12," Consultant, 1982-83. Dan Klugherz (Film) Productions, N.Y., Consultant, l98l-82. Stanton Project on Films on Women in American History, Advisory Board, 1974-77. PRIZE AND FELLOWSHIP SELECTION COMMITTEES: Merle Curti Prize, Organization of American Historians, 2008. Mark Lynton History Book Prize, 2002. Bunting Institute Fellowship Program, Radcliffe College, 1982, 1996. American Antiquarian Society Fellowships, 1991, 1992, 1994. Governors' Prize, Yale University Press, 1990. American Council of Learned Societies, Fellowships for Recent Recipients of the Ph.D., 1987, 1988, 1990. Bancroft Prize (Columbia University), 1985. Radcliffe Research Scholars Program, 1982. Hamilton Prize, Women and Culture Series, U. Michigan Press, 1981. CONSULTANT/EVALUATOR (selected list): Johns Hopkins University, History Department, February 2011. Wellesley College, Wellesley Centers for Women, June 2010. University of Helsinki, city center campus, 2005. Univ. of California at Santa Barbara, Women’s Studies Program, February 2002. National Endowment for the Humanities, fellowships for university teachers, 1998; media projects, 2001. History Department, University of Oregon, 1999. Woodrow Wilson Center Fellowships, 1991, 1992, 1994.

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State of Colorado Commission on Higher Education, 1990. National Humanities Center Fellowships, 1988, 1989, 1991, 1992, 1994. "Foundations of American Citizenship," curriculum project, Council of Chief State School Officers, 1987. Connecticut Humanities Council, 1986. Rockefeller Foundation Gender Roles Fellowships Program, 1985. Radcliffe Research Scholars, l983. Working Women's History Project, 9 to 5, Organization for Women Office Workers, 1981. Rockefeller Foundation Humanities Fellowships, l980. ACADEMIC LECTURES, PAPERS, COMMENTS DELIVERED (selected list): "The Past, Present, and Future of Feminism," OAH night lecture for the AP U.S. Exam-Reading Session, Louisville, KY, June 2012. "The Past, Present, and Future of Feminism," keynote for the 19th annual Susan B. Anthony Institute Interdisciplinary Graduate Conference at the Univ. of Rochester, March, 2012. "The Future of Marriage," Boston Review evening symposium, M.I.T., March 2011. "The History of Marriage on Trial," Margaret Morrison Distinguished Lecture in Women’s History, Carnegie Mellon University, Pittsburgh, PA March 2011. "Why History Matters: Same-Sex Marriage," U.C.L.A. History Department, February 2011. "The History of Marriage on Trial in Perry v. Schwarzenegger," American Association of Law Schools conference, San Francisco, January 2011. "Marriage on Trial," Gender and Women's Studies Program, University of Kentucky, December 2010. "The Craft of History and the Constitution: The Role of Historians as Expert Witnesses in Perry v. Schwarzenegger," Yale Law School, October 21, 2010. Keynote, "Embedded Bodies: Reproductive Justice in Social Context," Harvard Law School, October 15, 2010. "The History of Marriage on Trial," University of California at Berkeley, History Department, March 2010. Panelist, "State of the Field: History of Women/Gender/Sexuality,” Organization of American Historians annual meeting, April 2010. "Born Modern," Center for Advanced Study in the Behavioral Sciences, Stanford University, October 2008. “Revisiting the Jazz Age,” John O’Sullivan Memorial Lecture, Florida Atlantic U., November, 2007. “Recovering the Interwar Generation,” Modern America Workshop, Princeton University, April 2007; University of Chicago Social History Workshop, May 2007. “The Reproduction of Gender,” graduate student conference on Nineteenth-Century Reproduction,Temple University, February 2007. “Women in the Rubble,” Newcombe Institute Summit on Educating Women for a World in Crisis, New Orleans, LA, February 2007. “Marriage and Citizenship in the History of the United States,” Hall Center for the Humanities, University of Kansas, November 2006. “Women of Happenstance,” First Ladies Conference, McKinley Homestead, Canton, OH, Apr 2006. “Revisiting the 1920s Generation,” Rothermere American Institute, Oxford Univ., January 2006. "Boundaries and Blinders in History: Revisiting the 1920s Generation," keynote address, Western Association of Women Historians annual meeting, Phoenix, AZ, April 2005. Panelist, "The Political Spectrum of Same-Sex Marriage," conference on Breaking with Tradition: New Frontiers for Same-Sex Marriage, Yale Law School, March 2005. "Gender History and Generations," Women's History Month address, Rutgers-Camden Law School, Camden NJ, March 2005. "Collecting Women's History at the Schlesinger Library," Society of American Archivists annual meeting, August 2004.

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Colloquium on George Chauncey's Gay New York, Dec. 2003, Ecole Normale Superieur, Paris. Closing remarks, Library of Congress symposium, "Resourceful Women," June 19-20, 2003. "Women, Men, and Modern Marriage," Ecole des Hautes Etudes en Sciences Sociales, November 2003. “What’s Love Got to Do with It? Marriage as a Public Institution in the United States,” Fairleigh Dickinson University, March, 2003. Comment, “Revisiting Domesticity: Symbolic Economies of Sex and Gender,” American Historical Assoc. annual meeting, Washington, D.C., January 2003. “Gendering Colonial America, Making Women’s History Colonial: A Roundtable,” Berkshire Conference on Women’s History, Storrs, CT, June 2002. Comment, panel on “Race and Family in Wartime America: Illegitimacy, Immigration, and the Church,” Organization of Amer. Hist. annual meeting, Washington, D.C. April 2002. “New Directions in Women’s History after 9/11,” Brandeis University, March 2002. “The Efficacy of Women’s History,” Bridgewater State University, March 2002. “Marriage and the Nation,” Harvard Law School Legal History Forum, October 2001. “The Family, Citizenship, and Democracy in the United States,” University of Tokyo, Japan, July 2001. “Women as Workers, Citizens, and Activists in the Mid-Twentieth-Century U. S.” four- seminar series, Ritsumeikan University, Kyoto, Japan, July 2001. “Grooming Citizens: Marriage in the Political History of the United States,” Kyoto American Studies Seminar, Kyoto, Japan, July 2001. “Public Sanctity for a Private Realm: The Family, the Rhetoric of Democracy, and Constitutional Values in the U.S.,” Bacon Lecture on the Constitution, Boston Univ., May 2001. “Democracy and the Family,” Yale Tercentennial Series “Democratic Vistas,” April 2001. “Marriage and the Nation: Historical Perspectives,” Northeastern University Feminist Studies Colloquium, March 2001. “Public Vows: On Marriage and the Nation in the Early Twentieth-Century U.S.,” Center for Historical Study, U. Maryland, College Park, October 2000. “Marriage Revised and Revived,” Associated Yale Alumni faculty lecture, May, 2000. Comment, session on “The Idea of Marriage: The British Atlantic Context,” International Seminar on the History of the Atlantic World, 1500-1800, Harvard Univ., August 2000. “Reflections on Women and/in Authority,” Women, Justice, and Authority: A Working Conference, Yale Law School, April 28, 2000. “Grooming Citizens: Marriage and the Civic Order in the United States,” In the Company of Scholars Lecture Series, Yale University Graduate School, April 2000. “Public Vows: Marriage as a Public Institution,” History Department, Stanford University, January 2000. "An Archaeology of American Monogamy," History Department, Northwestern Univ., October 1999. "The Modern Architecture of Marriage," Gender and Policy Workshop, Department of Economic History, Stockholm University, Stockholm, Sweden, October 1999. "Women's Rights Talk," conference on "Rights--Civil, Human, and Natural," University of Southern Denmark, Odense, Denmark, October 1999. Comment, "Making and Breaking Marriages: Reconsidering American Families through the Law, Berkshire Conference on the History of Women, June 1999. "Marriage Fraud in the Making of Immigration Restriction in the U.S." Center for Cultural Studies, Univ. of California, Santa Cruz, May 1999. Panel discussant, women and citizenship, Univ. of California, Berkeley, October 1998. "An Approach to Citizenship through Gender History," Univ. of Colorado at Colorado Springs, Feb.1999. "Marriage and Citizenship," Legal Theory Workshop, Yale Law School, October 1998. Comment, "Public Policy and Marriage," American Society for Legal History, Seattle, WA, Oct. 1998. “Thinking about Citizenship and Nationality through Women's History," keynote address, Australian Historical Association, Sydney, Australia, July 1998. "Race, Blood, and Citizenship: A Gendered Perspective on U.S. Immigration Restriction, 1895-1917,"

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International Federation for Research in Women's History conference, Melbourne, Australia, June 1998. Introduction, Conference on Sexual Harassment Law, Yale Law School, February 1998. "Marriage and Public Policy: The Politicization of Marriage in the 1850s," Schlesinger Library, Radcliffe College, May 1997. Comment, "Association-Building in America," Organization of American Historians annual meeting, San Francisco, April 1997. "Writing American Women's History: Retrospect on Nineteenth Century Domesticity," Clarion University, Clarion, Pa., April 1997. "Against Equality: Mary Ritter Beard and Feminism," DePauw University, March 1997. "Marriage and Women's Citizenship: A Historical Excursion," N.Y.U. Law School, March 1997. Discussant, "One Woman, One Vote: Painting a 70-year Battle on a 2-hour TV Canvas," Berkshire Conference on the History of Women, June 1996, U.N.C. Chair, "International Feminism, 1840-1945," American Historical Association annual meeting, January 1996, Atlanta, Ga. “The Gender of Citizenship and the 19th Amendment," keynote address, University of Texas 8th Biennial Graduate Student Historical Symposium, Austin, Oct.1995; Women's History Week lecture, Fitchburg State College, Fitchburg Mass., March 1996. "Effects of the 19th Amendment," Delaware Heritage Commission Conference on the 75th Anniversary of the 19th Amendment, Delaware State Univ., November, 1995. "Forming the Body Politic: Gender, Race, and Citizenship Traditions in the U.S., "John Dewey Lecture in the Philosophy of Law, Harvard Law School, October 1994; Jane Ruby Humanities Fund Lecture, Wheaton College, March 1995. "The Marriage Knot: Gender, Race and Citizenship Policy in the U.S., 1855-1934," UCLA Center for the Study of Women, October 1994. Chair and comment, "Debating Democracy in the 19th Century," annual meeting of the Organization of American Historians, Atlanta, GA, April 1994. "Justice for All? Marriage, Race, and Deprivation of Citizenship in the Early 20th-Century U.S.," Keck Lecture, Amherst College, February 1994; Harvard University, February 1994. "Marriage, Gender, and Public Order," Symposium of the Association for Women's History, Amsterdam, Holland, November 1993. "Early Education of Women," symposium on Uncovering Women's History in Museums and Archives, Litchfield (CT) Historical Society, October 1993. "Early 20th-century Feminism in Germany and the U.S. Compared," Suffrage Centenary Conference, Wellington, New Zealand, August 1993. "Reviewing the Private and the Public through Women's History," Conference for 20 Years of the Edith Kreeger Wolf Distinguished Visiting Professorship, Northwestern Univ., April 1993. "Marriage as/and Public Policy in the Late Nineteenth-Century U.S.," annual meeting of the Organization of American Historians, Anaheim, CA, ; Northwestern University History Department, Apr1993. "Against Equality: Mary Ritter Beard and Feminism," Conference on the 200th Anniversary of Wollstonecraft's Vindication of the Rights of Women, Sussex, England, Dec. 1992. "'Enlightenment Respecting Half the Human Race': Mary Ritter Beard and Women's History," Sophia Smith Collection Semi-Centennial, September 1992. "Women's History in Contemporary Perspective," Harvard University Women's History Week, Mar 1992. "Educating Women in the U.S.," Founders Day lecture, Mary Baldwin College, October 1991. "Feminism in the U.S. in the Early 20th Century in Comparative Perspective," German Association for American Studies annual conference, Muenster, Germany, May 1991. Comment, "Women and American Political Identity," conference on Political Identity in American Thought, Yale Univ., April 1991.

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"Slavery, Race, and the History of Women's Rights in the U.S.," Trenton State College, NJ, March 1991. Comment, "Contextualizing Feminism," annual meeting of the American Historical Association, New York City, December 1990. "The Political Isn't Personal: Mary Ritter Beard's View of Women's History," Center for American Culture Studies, Columbia U., October 1990. "Mary Ritter Beard and Women's History," N.Y. Public Library, Sept. 1989. Chair, "Power in the Early Twentieth Century," Organization of American Historians annual meeting, St. Louis, April 1989. "What's in a Name?: The Limits of Social Feminism," Boston U., Jan. 1989; Brandeis U., Sept. 1989. Panelist, "Feminist Theory," 10th Anniversary Celebration of the Women's Studies Program at Brandeis U., November 1988. "Reconsidering Individualism and 'Nature Herself' in the Era of Laissez-Faire Constitutionalism," Harvard U. History Department, April 1988. Panelist, "Individualism," N. Y. U. Humanities Center, March 1988. Afterword, "Masculinity in Victorian America," Barnard College, Columbia U., January 1988. Panelist, "Beyond Roles, Beyond Spheres: Thinking about Gender in the Early Republic," U. of Pennsylvania, December 1987. Chair, "Women in American Constitutional History at the Bicentennial," Annual Meeting of the American Hist. Assoc., Washington, D.C., December 1987. "Women's Rights: Unspeakable Issues in the Constitution," Association of Yale Alumni Faculty Seminar, September 1987, New Haven, CT; Brandeis U., March 1988; Second Annual Lowell Conference on Women's History, Lowell, MA, March 1988; Conference on the Constitution as Historical and Living Document, Duchess County Community College, April 1988; Richardson American Studies Lecture, Georgetown U., April 1988. "How Weird Was Beard? Mary Ritter Beard and American Feminism," Seventh Berkshire Conference on the History of Women, June 1987, Wellesley MA. "The Birth of Feminism," Women's Studies Program, Cornell U., March 1987. "Feminism and Women's Political Participation in the Early 20th Century," Conference on Women and Citizenship, Women Historians of the Midwest, St. Paul, MN, March 1987. "The Power of Communalism: Reflections through Women's History," Historic Communal Societies Conference, October 1986. Chair, "Women in the 1950s: An Interdisciplinary Exploration," Organization of American Historians annual meeting, N.Y., April 1986. "Feminism in the 1920s," Boston Area Feminist Colloquium, Northeastern U., January 1986. "History of Feminism," Institute for Policy Studies, Washington, D.C., May 1985. "Feminist Theory and Feminist Movements: The Past Before Us," Women's History Week, Harvard U., March 1985. "Problems of Feminism in the l920s: the Political Environment," Women's History Series, New York U., February 1985; American Studies Lecture, Smith College, March 1985; Harvard Law School Faculty Colloquium, May 1985. "Has Modern Woman Disrupted the Home? 1920s Answers," Wesleyan Center for the Humanities, October 1984. "Feminism and Women in Professional Occupations in the 1920s," American Studies lecture, Amherst College, February 1984. "Feminism in Transition, 1910-1930," Sixth Berkshire Conference on the History of Women, June 1984, Northampton, MA. Comment, "Nineteenth-Century Gender Conventions," Smith-Smithsonian Conference on Conventions of Gender, February 1984. "Definitions of Feminism in the Early Twentieth-Century United States," Whitney Humanities Center,

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Yale U., September 1983. "Challenging Myths of Victorian Womanhood," American Psychiatric Association Convention, New York City, May 1983. "Women's History and Feminism," Phi Beta Kappa Lecture, Sweet Briar College, February 1983; Sarah Lawrence College, March l983. "Reappraising the History of Feminism in the 1920s," American Studies Series, Boston College, February 1983; History Dept. Series, U. of Virginia, February l983; Hamilton College, April 1983; Trinity College, April 1983. "The Hundred Fragments: Feminism, the Woman Suffrage Coalition, and American Society," Whitney Humanities Center, Yale U., January 1983; History Colloquium Series, Princeton U., March 1984. "Women's Education Before 1837," panel, Conference on Women and Education: The Last 150 Years, Mt. Holyoke College, April 1982. "The Crisis in Feminism, 1910-1920," Radcliffe Research Scholars Series, Radcliffe College, May 1982; Women's Studies Series, Wesleyan U., October 1982. "Feminism and Women's History," Harvard U., Women's History Week, March 1982. "The Problem of Feminism in the 1920s," Isabel McCaffrey Lecture, May 1981, Harvard U.; American Civilization Dept., Brown U., November l98l; History and Women's Studies Series, U. of Michigan, March 1982; Center for European Studies, Harvard U., April 1982. Comment, "Consciousness and Society in New England, 1740-l840," Organization of American Historians annual meeting, April 1980, San Francisco, CA. "Women's History: Retrospect and Prospect," Harvard Divinity School History Colloquium, March 1980; U. of South Florida Women's Week, March 1980; American Assoc. for State and Local History, NE Regional Seminar, November 1980, New Haven, CT. "Women and Feminism in the 20th Century," Bunting Institute, Radcliffe College, October 1978. "Roundtable on Mary Ritter Beard," Fourth Berkshire Conference on the History of Women, August 1978, South Hadley, MA. "Ministers and Women in the Late l8th and Early l9th Century," Princeton Theological Seminary, March 1978. "New England Women's Work in the Early National Period," Historic Deerfield, MA, February 1978. Comment, "Sexuality and Ideology in l9th-century America," Southern Hist. Assoc. Conference, November 1977, New Orleans, LA. "Passionlessness: An Interpretation of Anglo-American Sexual Ideology, 1790- l840," History Dept. Colloquium, U. of Mass., April 1977; Rutgers U., March 1978; Marjorie Harris Weiss Lectureship, Brown U., March 1978. "Women and Religion in Early l9th-Century New England," History Department Colloquium Series, U.of Conn., February 1977; Old Sturbridge Village, March 1977. Chair and comment, "Comparative Perspectives on Sexual and Marital Deviance and the Law," Third Berkshire Conference on the History of Women, June 1978, Bryn Mawr, PA. "Adultery, Divorce, and the Status of Women in Revolutionary Massachusetts, "Conference on Women in the Era of the American Revolution, July, 1975, Washington, D.C.; Princeton U. Colloquium Series, November 1975; Boston State College Lecture Series on the American Revolution, November 1976. Young Women's Conversion in the Second Great Awakening," Second Berkshire Conference on the History of Women, November 1974, Cambridge, MA. Chair and comment, "Women in the Professions," First Berkshire Conference on the History of Women, March 1973, New Brunswick, N.J. PUBLIC SERVICE LECTURES:

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"Women's Rights in the 20th Century," week-long series of lectures, Gilder-Lehrman Institute for American History seminars for teachers, June 2008, 2009, 2011. “What is Gender History?” Symposium on Women, History Connections Teaching American History Grant, Rockford Public Schools, Rockford, Illinois, October 2007. “Marriage and the State,” Thursday Morning Club (for the benefit of Mt. Auburn Hospital), Feb. 2006. “What Can Venturesome Women of the 1920s Tell Us Today?” Linda Rosenzweig Memorial Lecture, Wellfleet Public Library, Wellfleet MA, August 2005. "Marriage and the Public Order in the History of the United States," 2005 American Studies Summer Institute, John F. Kennedy Library, July 2005. "Preserving Women's History at Radcliffe and Harvard," Committee on the Concerns of Women at Harvard, June 2005. "Women's Education in the 18th Century," Adams Historic Site, Quincy, MA, April, 2005. Moderator, "What Sort of a Right is Marriage?" Harvard University Human Rights Program, March 2005. "What is Gender History?" annual luncheon for the College Board, Organization of American Historians, annual meeting, San Jose, CA, April 2005. "What the State Has to Do with It: Changing Marriage," Democrats Abroad, Paris, Dec. 2003. "Marriage and the Law," invited discussion with Senior Matrimonial Lawyers, educational retreat, Troutbeck Conference Center, Amenia NY, October 2003. “Marriage as a Public Institution in the United States,” Harvard Neighbors, February 2003; Harvard Librarians’ group, February 2003. “Looking at the World after 9/11 through a Women’s History Lens,” Radcliffe Seminars Final Conference, April 2002. “Women as Workers and Citizens in the Twentieth Century,” Institute for Emerging Civil Rights Leaders, Harvard Graduate School of Education, June 11, 2001. “The Value of Women’s Work: Historical, Public and Private Views,” Bostonian Society, May 2001. “Woman Suffrage: Why Did It Take So Long?” and “The Gender Structure of Citizenship,” NEH Summer Institute for High School and Middle School Teachers on Women’s Rights and Citizenship in American Thought,” Ohio State Univ., July 2000. “Education in Abigail Adams’ Time,” Women and the American Revolution Lecture Series, Adams National Historical Site, Quincy, MA, June 2000. “Women of Conscience in Politics,” Maine Town Meeting, 50th anniversary of Sen. Margaret Chase Smith’s Declaration of Conscience, June 1, 2000, Skowhegan, Maine. “The History of Marriage,” testimony and discussion before the Judiciary Committee, Vermont House of Representatives, January 2000. "Women as Citizens in the 20th Century," A Millennium Evening at the White House, Washington, D.C., March 1999. "Historians and Filmmakers: A Dialogue," Chatauqua .N.Y., August 1997. "Winning the Women's Ballot: Citizenship, World War, and the Woman Suffrage Campaign," U.S. Air Force Academy, Colorado Springs, August 1995. "The Beginnings of Women's Education in the U.S.," Witmer Lecture, Social Studies Dept., Hunter College High School, March 1995. "New Immigrants, New Women," Rebecca Plank Memorial Lecture, Milton Academy, March 1995. "The South and the Nation in the History of Women's Rights," Conference of Southern Humanities Foundations, Washington, D.C., May 1988. "Women's Rights: Unspeakable Issues in the Constitution," Judicial Seminar, N.Y. State Judiciary Continuing Education, July 1988.

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Exhibit B

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Kerber, Linda K. No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill & Wang, 1998). Kessler-Harris, Alice. In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th-century America (New York: Oxford, 2001). May, Elaine Tyler. Barren In the Promised Land: Childless Americans and the Pursuit of Happiness (Harvard University Press, 1996). May, Elaine Tyler. Homeward Bound: American Families in the Cold War Era (Basic Books, 2008). Pascoe, Peggy. What Comes Naturally: Miscegenation law and the Making of Race in America (New York: Oxford, 1999). Phillips, Roderick. Putting Asunder: A History of Divorce in Western Society (Cambridge and New York, Cambridge University Press, 1988). Pleck, Elizabeth H. Celebrating The Family: Ethnicity, Consumer Culture, and Family Rituals (Harvard University Press, 2001). Riley, Glenda. Divorce: An American Tradition 65 (New York: Oxford University Press, 1991). Sayre, Paul. “A Reconsideration of Husband's Duty to Support and Wife’s Duty to Render Services,” Virginia Law Review 29 (1943), 857-75. Shammas, Carole. “Re-assessing the Married Women’s Property Acts,” Journal of Women’s History 6:1 (Spring 1994), 9-30. Shammas, Carole. A History of Household Government In America (University of Virginia Press, 2002). Shammas, Carole. “Anglo-American Household Government in Comparative Perspectives,” WMQ, 3d ser., 52:1 (Jan. 1995), 104-44. Shanley, Mary L. Feminism, Marriage and the Law in Victorian England (Princeton, 1989). Shanley, Mary L. Making Babies, Making Families: What Matters Most in an Age of Reproductive Technologies, Surrogacy, Adoption, and Same-Sex Unwed Parents (Beacon, 2001). Shanley, Mary L. “Marriage Contract and Social Contract in 17th- Century English Political Thought,” The Family In Political Thought (J.B. Elshtain ed., 1982).

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Siegel, Reva B. “The Modernization of Marital Status Law: Adjudicating Wives’ Rights to Earnings, 1860-1930,” Georgetown Law Journal 82:7 (Sept. 1994), 2127-2211. Skocpol, Theda. Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass.: Harvard University Press, 1992). Stanley, Amy Dru. From Bondage to Contract: Wage Labor, Marriage and the Market in the Age of Slave Emancipation (Cambridge University Press, 1998). Sugarman, Stephen D., and Herma Hill Kay, eds. Divorce Reform at the Crossroads (New Haven: Yale University Press, 1990). VanBurkleo, Sandra F. ‘Belonging to the World’: Women’s Rights and American Constitutional Culture (New York: Oxford, 2001). Vernier, Chester G. American Family Laws: A Comparative Study of the Family Law of the Forty-Eight American States . (Stanford: Stanford University Press 1931). vol I Introductory Survey and Marriage (to Jan. 1 1931); vol III, Husband and Wife (to Jan. 1, 1935). Wallenstein, Peter, “Race, Marriage and the Law of Freedom: Alabama and Virginia, 1860-1960s,” Chicago-Kent Law Review 70:2 (1994), 371-437. Warren, Joseph. “Husband’s Right to Wife’s Services,” Harvard Law Review 38 (Feb. 1925), pt. 1, 421-46, pt. 2, 622-50. Welke, Barbara. Law and the Borders of Belonging in the Long Nineteenth Century United States (Cambridge University Press, 2010).

Cases Clark v. Clark, 44 Nev. 44 (1920). Loving v. Virginia 388 U.S. 1 (1967). Orr v. Orr, 440 U.S. 268 (1979). Perez v. Sharp, 198 P.2d 17 (Cal. 1948). Constitution, Statutes, Legislative Materials and Session Reports Nev. Const. art. 1, § 21. Nev. Rev. Stat. § 122.020. Nev. Rev. Stat. § 122.110. 4 App. 000141 - Pls.' SJ Opp'n, Kitchen v. Herbert
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Nev. Rev. Stat. §§ 122A.100, et seq. Nev. Rev. Stat. §§ 122A.010, et seq. Nev. Rev. Stat. § 123.230. 1862 Nev. Stat., ch. 32, at 93. 1862 Nev. Stat., ch. 33, at 98-9. 1862 Nev. Stat., ch. 76, at 239-42. 1873 Nev. Stat., ch. 119, at 194. 1897 Nev. Stat, ch. 20, at 24. 1912 Rev. Laws of Nev., Vol. 2, at 1869. 1913 Nev. Stat., ch. 10, at 11. 1915 Nev. Stat., ch. 28, at 27. 1919 Nev. Stat., ch. 72, at 124. 1927 Nev. Stat., ch. 96, at 127. 1931 Nev. Stat., ch. 97, at 161. 1959 Nev. Stat., ch. 193, at 216. 1959 Nev. Stat., ch. 298, at 408. 1967 Nev. Stat., ch. 278 at 805. The Compiled laws of Nevada In Force From 1861-1900 (Inclusive) (compiled and annotated by Henry C. Cutting, 1900), Domestic Relations - Approved November 28, 1861, 94. Nevada Compiled Laws: Supplement 1943-1949, 325 (1950).

Other Materials Anderson, Rachel J. “Timeline: African-American Legal History in Nevada (18612011),” 20 Nevada Lawyer 8 (2012). 5 App. 000142 - Pls.' SJ Opp'n, Kitchen v. Herbert
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“A Brief History of the Washoe County Bar Association: 1905-2005,” 13 Nevada Lawyer 7. Pew Research Center report, released February 16, 2012 , "The Rise of Intermarriage: Rates, Characteristics Vary by Race and Gender," by Wendy Wang, Appendix 2, available at http://www.pewsocialtrends.org/2012/02/16/the-rise-ofintermarriage/7/#appendix-2-state-andregional-rates accessed 8-30-2012.

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Exhibit 4

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Peggy A. Tomsic (3879) tomsic@mgpclaw.com James E. Magleby (7247) magleby@mgpclaw.com Jennifer Fraser Parrish (11207) parrish@mgpclaw.com MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101-3605 Telephone: 801.359.9000 Facsimile: 801.359.9011 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually, KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, Plaintiffs, v. GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah; and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Case No. 2:13-cv-00217-RJS Defendants. Honorable Robert J. Shelby DECLARATION OF CHARLOTTE J. PATTERSON, Ph.D.

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I, Charlotte J. Patterson, Ph.D., hereby declare and state as follows: PRELIMINARY STATEMENT 1. I am a Professor of Psychology in the Department of Psychology at the University of Virginia, in Charlottesville VA. I am also the Director of the interdisciplinary Women, Gender & Sexuality Program at the University of Virginia. I have knowledge of the matters stated in this declaration and could and would so testify if called as a witness. 2. My background, experience, and list of publications are summarized in my curriculum vitae, which is attached as Exhibit A to this report. 3. I earned a B.A. degree in Psychology from Pomona College in 1971, an M.A. in Psychology from Stanford University in 1972, and a Ph.D. in Psychology from Stanford University in 1975. 4. I joined the faculty of the Department of Psychology at the University of Virginia in 1975, and have remained a member of this faculty ever since. 5. I have authored more than 125 publications (i.e., articles or chapters) that have appeared either in peer-reviewed professional journals or in professional books published primarily for the readership of other professionals. I have written or edited 5 books in the fields of developmental psychology and the psychology of sexual orientation. 6. I have been a peer reviewer for many professional journals over the past 30 years, and have served as Associate Editor of the Merrill Palmer Quarterly of Human Development and as guest editor for two special issues of the journal Developmental Psychology. I sit on the editorial boards of several journals, including the Journal of Family Psychology. I have served as a peer reviewer for dozens of articles that address issues related to sexual orientation, parenting, and

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child development. 7. Over the course of my career, I have pursued research on social and personal development among children and adolescents, with an emphasis on the familial and school contexts of human development. I have conducted research with lesbian and gay parents and their children; some of this research has focused on issues in child and adolescent development, and some has focused on issues related to sexual orientation and parenting. I am very familiar with the research on families headed by lesbian and gay individuals and couples. 8. I have been retained by counsel for the Plaintiffs in the above-entitled action as an expert in connection with the above-referenced litigation. I am being compensated for this effort at a rate of $300 per hour. I will be reimbursed for expenses in the event that I must travel in connection with my services. My compensation does not depend on the outcome of this litigation, the opinions that I express, or the testimony I provide. 9. In the past four years, I have provided expert legal services in two matters. The first, in which I provided consultation but not expert testimony, was Perry v. Schwarzenegger, Case No. 09-CV-2292, which concerned California’s ban on marriage by same-sex couples. The second, in which I submitted expert testimony by affadavit, was a child custody case, Lewandowski v. Donohoe, Case No. 2010-DR-08-1032, in the Family Court, Ninth Judicial Circuit, County of Berkeley, State of South Carolina. 10. In preparing this Declaration, I reviewed the Complaint in this case, and the materials listed in the attached Bibliography (see Exhibit B). I may rely on those documents, in addition to the documents specifically cited as supportive examples in particular sections of this Declaration, as additional support for my opinions. I have also relied upon my years of experience in this

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field, as set out in my curriculum vitae (see Exhibit A), and on the materials listed therein. I. Summary of ultimate conclusions 11. Other things being equal, research has revealed that children and adolescents brought up by same-sex couples are as likely to be well-adjusted as are children brought up by oppositesex couples. Many studies of young people reared by same-sex couples conducted over the past 30 years by respected researchers and published in peer-reviewed journals conclude that children and adolescents of same-sex couples are as successful in psychological, emotional, and social terms as are similarly situated children of opposite-sex parents. Furthermore, researchers have also found that the same factors, as described below, affect the adjustment of children and adolescents, regardless of parental sexual orientation. 12. There is wide agreement among social scientists about the factors that account for the adjustment of children and adolescents; these include the qualities of children’s and adolescents’ relationships with their parents, the qualities of the relationship between the parents or significant adults in the children’s or adolescents’ lives, and the availability of economic and socioemotional resources. There is wide agreement among social scientists that these factors affect adjustment of children growing up in both traditional and non-traditional families. Parental sex and sexual orientation are not related to the ability to be a good parent or to the likelihood of healthy development among children or adolescents. In addition, no empirical support has emerged for the view that the presence of both male and female role models in the home promotes children’s adjustment or well-being. II. Factors that predict children’s and adolescents’ adjustment. 13. The term “adjustment” is used by psychologists to describe psychosocial well-being.

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As such, the term “adjustment” refers to characteristics that allow children and adolescents to function well in their lives, including the absence of troublesome psychological symptoms and behavior problems. When children and adolescents are well-adjusted, they have the social skills to get along well with adults and peers, to function well in school and in the workplace, and to establish meaningful relationships. Maladjustment, in contrast, might reveal itself through behavior problems, such as aggressive behavior, or deficient social skills, such as an inability to establish or sustain meaningful relationships with other people. 14. Hundreds if not thousands of studies have examined the factors that are associated with healthy adjustment in children and in adolescents. Drawing on this large body of research, psychologists have reached consensus about factors that predict healthy development and adjustment. Among the factors that have been identified in this way are (a) the qualities of children’s and adolescents’ relationships with their parents or parental figures, (b) the qualities of relationships between parents and other significant adults, and (c) the availability of adequate economic and social resources. In general, children and adolescents who have access to adequate economic and social resources, who have warm and harmonious relationships with parents, and whose parents or parental figures have harmonious relationships with one another are more likely than others to be well-adjusted. Conversely, children and adolescents who live in conditions of poverty or social isolation, whose relationships with parents are distant, conflictual or lacking in warmth, and whose parents or parental figures are in conflict with one another are less likely than others to be well-adjusted. 15. When children or adolescents enjoy good relationships with their parents or parental figures, and regardless of parental sexual orientation, youngsters are less likely to show

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psychological symptoms or maladjustment. Good parenting occurs when parents offer love, affection and warmth and also provide appropriate stimulation, guidance and limit-setting for their children and adolescents. Parental sensitivity, or the ability to understand and respond to social cues from children or adolescents is also related to quality of parent-child and parentadolescent relationships; when parents are sensitive to social cues from their children or adolescents, relationships are likely to be of higher quality. 16. Some differences among children and among adolescents are simply normal variations among people, and are not related to adjustment. As an example, intelligence has been extensively studied, but is not regarded as an aspect of adjustment or maladjustment. Other differences among people may arise because of cultural factors (e.g., individual versus collective orientation) or personality (e.g., introverted versus extroverrted). Not all differences between or among people reflect aspects of adjustment. III. Factors predicting healthy adjustment are the same for traditional and nontraditional families; and children and adolescents in nontraditional families are just as capable of healthy adjustment as those in traditional settings. 17. In the context of psychological research, the term “traditional family” refers to the type of family environment that was once considered to be the norm — a middle-class family with a breadwinning father and a stay-at-home mother, married to each other, and rearing their biological children. Thus, “non-traditional families” involve any kind of variation from this expected or normative pattern. Included under the category of “non-traditional families”, then, are families in which fathers assume overall responsibility for childcare, families with employed mothers, families with two employed parents, families with single parents, and/or families that

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rely on non-parental care for children (e.g., in childcare centers or in family daycare homes). By these criteria, the majority of families with children under the age of 18 in the United States today are “non-traditional”. 18. It was once believed that the traditional family provided an environment for childrearing that was superior to all others, and that traditional families were necessary in order for children and adolescents to show healthy adjustment. The results of fifty years of research on child and adolescent development, however, have challenged this belief. Such research has focused on the impact on children and adolescents of maternal employment, parental divorce, one parent families, stay-at-home father families, and families headed by same-sex couples. 19. Regardless of whether children or adolescents are reared in traditional or nontraditional family environments, research has shown that the important predictors of adjustment remain the same. Parental affection, consistency, responsiveness, and emotional commitment, as well as the quality and character of relationships between parents or parental figures, and the availability of economic and other resources have repeatedly been shown to be important predictors of child and adolescent adjustment, in non-traditional as in traditional family environments. Results of a considerable body of psychological research over many years have revealed that children and adolescents who grow up in non-traditional family environments can be as well-adjusted as those who grow up in traditional families. A. Difficulties in one-parent families have nothing to do with parent gender or sexual orientation; the absence of a father or of a mother, by itself, is not a predictor of healthy adjustment. 20. Substantial research on the impact of parental separation and divorce on children and

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adolescents has revealed that, although some children and adolescents whose parents divorce show good adjustment, others are more likely than those in two-parent homes to show problems in adjustment. Results of research reveal that conflict between parents and reduced access to resources are major reasons why children of divorce are likely to experience problems in adjustment. These are familiar factors that are related to adjustment among other children and adolescents, not special factors related specifically to parental separation or divorce. 21. The causes of adjustment difficulties for children of divorce are consistent with the predictors of adjustment overall. Most children live with their mothers after divorce, and families headed by single mothers often suffer financial hardship relative to two-parent families. Many divorces expose children and adolescents to conflict between parents, both before and after the divorce, and many also involve diminished contact with a non-residential parent over time. In addition, divorce often involves stressful transitions for children such as moving to a new home, new neighborhood, and/or new school. Many children lose one of their supportive parental relationships after parents divorce, and may also lose financial support from the nonresidential parent. These factors are correlated with problems in adjustment among children from traditional and non-traditional families. B. Male and female parents can be equally competent; the absence of male or female parents in the home does not impair development. 22. For many years, it was assumed that the absence of a male figure accounted for greater problems in adjustment among children and adolescents in mother-headed homes. Results of a substantial body of research have shown, however, that it is not the absence of a male figure in itself that is important for development; instead, it is the overall qualities of the

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child’s or adolescent’s relationships with parents, the qualities of the parents’ relationships with one another, and the overall adequacy of resources available to the family that are most important. It is now well-established by psychological research that both men and women have the capacity to be good parents, and that having parents of both genders is not essential to children’s and adolescents’ healthy development or good adjustment. 23. Results of extensive research reveal that, for most people, parenting skills are learned after the birth of the first child. At the point when children come into the family, at birth or via adoption, most men and most women are equally skilled (or unskilled) as parents. In our society, women spend more time than men in parenting roles, and so they become more skilled over time. The disparity reflects women’s greater experience, not any biologically given capacity. When men spend more time in parenting roles, they too become more skillful. A person’s sex does not determine his or her capacity for success as a parent. 24. There are stylistic differences in the ways that most men and most women tend to interact with infants and children, but these are not related to adjustment. Results of research show that men are more likely to play with children in physically active, playful and unpredictable ways, whereas women are more likely to play quietly, in more soothing and predictable ways. These differences are not true of all men and women, however, nor is it harmful when parents do not assume traditional gender roles when interacting with their children. 25. Both male and female adults can adopt sensitive or authoritative parenting styles. When fathers are primary caregivers for their children, the style of interaction between father and child often begins after a short time to look like traditional mother-child interactions. Some

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differences in parenting style may thus be a function of who serves as primary versus secondary parent in a particular family. Many children do not have parents who offer both of these parenting styles, and this has not been found to affect their adjustment or development. There is no evidence that presence in the home of both male and female role models affects child or adolescent development or adjustment. IV. Research specific to parenting by same-sex couples demonstrates that the children and adolescents of same-sex parents are just as well-adjusted as those with different-sex parents. A. Based on a significant and well-respected body of research, the scientific community has reached consensus that parental sexual orientation does not affect adjustment. 26. A considerable amount of research has examined the adjustment of children and adolescents who are growing up with lesbian or gay parents and/or same-sex couples. This body of work consists of more than 50 peer-reviewed empirical journal articles, and many additional articles and book chapters intended for professional audiences. 27. Results of research in this area are consistent with and support the findings of the broader body of research on child and adolescent development in both traditional and nontraditional families. The results show that adjustment of children and adolescents is associated with the qualities of their relationships with parents, the qualities of relationships between parents or parental figures, and the resources available to families. 28. The results of this research also show that adjustment of children and adolescents is unrelated to the gender or sexual orientation of the parent(s). Research comparing adjustment

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among children and adolescents of same-sex parents with that among their peers with oppositesex parents has consistently shown that children and adolescents in the two groups do not differ in their levels of adjustment. Researchers have found children and adolescents of same-sex parents to be as emotionally healthy, as well-behaved, and as socially and educationally successful as their peers who have opposite-sex parents. The idea that there is an optimal gender mix of parents has received no empirical support from psychological research. The notion that children or adolescents with same-sex parents suffer developmental disadvantages due to their parents’ sexual orientation has likewise gone without empirical support. 29. Some observers have described a 2012 article by Mark Regnerus as providing evidence that runs counter to the social science consensus summarized above. However, this is an incorrect characterization of Regnerus’ work, which actually allows no such conclusion. Regnerus did not actually study individuals reared by same-sex partners. In the Regnerus study, an individual was deemed to have a “lesbian mother” or a “gay father” if he or she answered affirmatively to the question: “From when you were born until age 18 (or until you left home to be on your own), did either of your parents ever have a romantic relationship with someone of the same sex?” Most of the individuals identified in this way were offspring of failed heterosexual marriages and had spent very little if any time living in households headed by same-sex couples. The journal in which the article was published has since published an audit finding that this fact alone should have precluded publication of the work. See http://chronicle.com/blogs/percolator/controversial-gay-parenting-study-is-severely-flawedjournals-audit-finds/30255. 30. In addition, most of the “lesbian mother” and “gay father” participants in the

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Regnerus work were in families that underwent parental separations and divorces, which are known correlates of adjustment difficulties. In contrast, Regnerus excluded any participants whose opposite-sex parents had undergone separation or divorce. Thus, the main conclusion warranted by the study seems to be the well-established fact that children of divorce are more likely than those in stable family situations to experience problems in adjustment. In summary, Regnerus’ work is not relevant to the questions discussed here because he did not study the adjustment of children or adolescents reared by same-sex parents at all. 31. A new study by Allen (“High school graduation rates among children of same-sex households”, in Review Econ. Household, 2013), presents data that also purport to discredit the consensus, but also fail to do so. This study examined high school graduation rates among young adults in Canada, and reported that those who described at least one parent as gay or lesbian had lower rates of high school graduation than did their peers with continuously married heterosexual parents. This comparison is not relevant here, however, because almost all the parents characterized as gay or lesbian had also undergone divorce or separation, which is a known correlate of school problems, whereas other parents were more likely to be continuously married. Thus, the main conclusion that would appear to be warranted on the basis of Allen’s data is that young adults whose biological parents divorce or separate are also likely to report lower educational attainment than their peers with continuously married parents. This conclusion is already well-established, and it has nothing to do with parental sexual orientation. 32. In summary, there is a strong consensus among social scientists that parental sexual orientation is unrelated to adjustment among children and adolescents. Many mainstream professional organizations representing social scientists, medical professionals, and child welfare

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advocates have issued statements confirming their belief that same-sex parents are as effective as opposite-sex parents in rearing well-adjusted children and adolescents. These organizations include the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the American Psychological Association, the American Psychoanalytic Association, the American Medical Association, the American Sociological Association, the National Association of Social Workers, and the Child Welfare League of America. As the American Sociological Association stated in its 2013 Amicus brief in Hollingsworth v. Perry, “whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s well-being”. B. Studies identifying differences in the children or adolescents of same-sex parents have identified only normal variations, and not differences in adjustment. 33. Like children and adolescents in other non-traditional families, children and adolescents with same-sex parents have sometimes been found to hold less sex-stereotyped beliefs, and to be more open in their views of societal norms and standards about appropriate behavior for males and females. For instance, some studies of young children found that girls reared by lesbian mothers may be more likely than their peers reared by heterosexual mothers to play with toy trucks as well as with dolls, and to think that being a scientist or a doctor is an appropriate aim for a girl as well as for a boy. Some developmental psychologists once viewed adherence to sex stereotypes as a part of adjustment, but this view has been largely abandoned by scholars of human development. Differences seen in sex-stereotyped beliefs and behavior as a function of parental sexual orientation are not differences in adjustment. Researchers have found that children and adolescents reared by same-sex parents do not differ from those reared by

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opposite-sex parents in their sexual orientation in adult life. There is likewise no evidence for differences in gender identity (i.e., the internal sense of oneself as male or female). C. The methodology of the research examining same-sex parents is standard, reliable, and accepted in the field. 34. Social scientists use many different kinds of research methods and research designs, and they collect many types of data. Developmental psychologists most often emphasize intensive examination of relatively small numbers of individuals, often against the background of social relationships and contextual concerns. Developmental psychologists rarely use research methods based on statistically representative national samples. Such large-scale survey methods, which are often used by sociologists and demographers, are often lacking in the fine detail required to evaluate psychological hypotheses. It is common for developmental psychologists to use what are called “convenience” samples, and to study those samples in an intensive manner, rather than to study large samples at a more superficial level. 35. The methodologies employed in the major studies of same-sex parents and their children meet standards for research in the field of developmental psychology. A rigorous process of peer review is used to evaluate methods and standards of research for every manuscript that has been submitted for publication. Established scholars in individual disciplines conduct anonymous reviews, evaluating the adequacy of methods, data analyses and conclusions; only after holding up to this type of scrutiny can a research article be published in a peer-reviewed journal. 36. The studies specific to same-sex parents from which I draw my conclusions were published in leading journals in the field of child and adolescent development, such as Child

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Development, Developmental Psychology, and the Journal of Child Psychology and Psychiatry. These are the three flagship peer-reviewed journals in the field of Developmental Psychology. Most of the studies on which I rely appeared in these (or similar) rigorously peer-reviewed and highly selective journals. The standards of these journals represent expert consensus on generally accepted social science standards for research on child and adolescent development. In order to be published in these journals, studies were required to undergo a rigorous process of peer review. Having survived this process, they constitute the type of research that members of the respective professions consider reliable. Overall, the research on families formed by samesex couples is consistent with standards in the relevant fields, and it produces reliable conclusions. D. Data concerning one-parent families does not support conclusions about the preferred gender of parents. 37. To support their opinions that children need both mothers and fathers, and also that heterosexual couples make the best parents, advocacy groups that oppose parenting by same-sex couples sometimes cite studies showing that children in one-parent families are at greater risk for maladjustment than children in two-parent families. It is inaccurate to use research into oneparent families in this way, because it typically does not assess the impact of parental gender or sexual orientation at all. 38. Studies on one-parent families generally compare one-parent and two-parent heterosexual parent families. The studies usually do not include any families headed by lesbian or gay parents. For this reason, it is not appropriate to attribute differences resulting from number of parents or differential access to resources to parental gender or sexual orientation. It is

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also not appropriate to draw conclusions about child development in families headed by lesbian or gay parents from studies that do not include any children with lesbian or gay parents. For these reasons, data from studies of one- and two-parent families are generally irrelevant to questions about adjustment of children and adolescents with same-sex parents. V. Many children and adolescents with same-sex parents already live in Utah, and they would likely benefit if their parents were permitted to marry. 39. The benefits of marriage for children and families can include legal protections, economic benefits, and social legitimacy. There is no reason to believe that these benefits would be of any less value to families formed by same-sex as compared to opposite-sex couples. Many lesbians and gay men are parents, and it is in the best interests of the children for same-sex parents to have equal access to marriage and to the benefits, protections and legitimacy it affords. The failure to recognize marriages of same-sex couples may convey to children that their parents’ relationships are less valid, important, or legitimate than those of opposite-sex couples whose marriages are recognized in law. For these reasons, children and adolescents with samesex parents would likely benefit if their parents were permitted to marry. 40. According to estimates based on 2008 data from the U. S. Census Bureau, there were 3,861 same-sex couples living in Utah, and 30% of them were raising children under the age of 18. Households headed by same-sex couples raising children reported that they had, on average, 2.5 children. Thus, in 2008, approximately 2,900 of Utah’s children under 18 years of age were believed to be living in households headed by same-sex parents. For the reasons given above, these children would likely benefit if their parents were permitted to marry.

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21st

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Exhibit A

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September, 2013
Vita

CHARLOTTE J. PATTERSON
patterson@virginia.edu http://people.virginia.edu/~cjp/ Dept. of Psychology - Gilmer Hall University of Virginia P.O. Box 400400 Charlottesville VA 22904 (434) 924-0664, voice (434) 982-4766, fax Education 1971 1972 1975 B.A., with honors, Psychology, Pomona College M.A., Psychology, Stanford University Ph.D., Psychology, Stanford University Women, Gender & Sexuality Program – Minor Hall University of Virginia P. O. Box 400172 Charlottesville VA 22904 (434) 982-2962, voice (434)924-6969, fax

Research Interests Developmental psychology, family psychology, psychology of sexual orientation Sexual orientation and human development in context of family lives Child development, reproductive technology, law, and public policy Child, adolescent, and adult development in family, peer, and school contexts Current Employment Professor - Department of Psychology and Center for Children, Families and the Law, University of Virginia Director – Women, Gender & Sexuality Program, College of Arts & Sciences, University of Virginia Employment History 1969 National Institutes of Health Summer Research Fellow, working under the direction of Dr. Richard F. Thompson, Department of Psychobiology, University of California at Irvine. United States Public Health Service Pre-Doctoral Trainee, Department of Psychology, Stanford University. National Science Foundation Pre-Doctoral Fellow, Department of Psychology, Stanford University Assistant to Associate to Full Professor, Department of Psychology, University of Virginia

1971 - 1972

1972 - 1975

1975 -

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2

Employment History (continued) 1989 - 1990 Sesquicentennial Fellow, University of Virginia and Visiting Scholar, Department of Psychology and Beatrice Bain Research Group, University of California, Berkeley Sesquicentennial Fellow, University of Virginia (Spring 1997 only) Sesquicentennial Fellow, University of Virginia Distinguished Visiting Fellow, Institute for Advanced Study, La Trobe University, Melbourne Williams Distinguished Research Fellow, Williams Institute, UCLA School of Law Sesquicentennial Fellow, University of Virginia Director, Women Gender & Sexuality Program, University of Virginia

1996 - 1997 2003 - 2004 2007 2008 - 2009 2009 - 2010 2011 -

Awards 1996 Distinguished Scientific Contribution Award, American Psychological Association Division 44 (Society for Psychological Study of Lesbian and Gay Issues) Mental Health Professional Group Prize, American Society for Reproductive Medicine, for paper entitled, "Psychosocial Development Among Children Conceived Via Donor Insemination by Lesbian and Heterosexual Mothers", by Raboy, Chan & Patterson. University of Virginia Teaching + Technology Initiative Fellowship to redesign course materials for Psychology 250 (Introductory Child Psychology) Outstanding Achievement Award, American Psychological Association, Committee on Lesbian, Gay and Bisexual Concerns University of Virginia Faculty Senate Initiative on Excellent Teaching small grant to develop multimedia resources for Psychology 250 (Introductory Child Psychology) Distinguished Scientific Contribution Award, Georgia State Psychological Association, Division H, for research on sexual orientation and human development Carolyn Attneave Diversity Award, American Psychological Association Division 43 (Family Psychology), for contributions that advance the understanding of and integration of diversity into Family Psychology Society for Research in Child Development, Top Ten Most Downloaded Papers of the Year for the journal Child Development, paper entitled, “Psychosocial adjustment and school outcomes of adolescents with same-sex parents”, by Wainright, Russell, and Patterson (ranked 2nd among the top ten)

1996

1996 - 1997

1997

1998 - 1999

1999

2002

2005

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Awards (continued) 2006 Bernard Mayes Award for Distinguished Service to the Lesbian, Gay, Bisexual and Transgender Communities at the University of Virginia, Serpentine Society (University of Virginia Lesbian and Gay Alumni Association) Distinguished Contributions to Research in Public Policy Award, American Psychological Association Laura Brown Award for Outstanding Contributions in Advancing Lesbian and Bisexual Women’s Psychology, Society for the Psychology of Women (American Psychological Association, Division 35) OUTstanding Virginian Award, Equality Virginia (statewide lobbying organization for LGBT concerns in the Commonwealth of Virginia) Outstanding Book of the Year Award, American Psychological Association Division 44 (Society for Psychological Study of Social Issues), for Handbook of Psychology and Sexual Orientation.

2009

2011

2013

2013

Memberships Fellow American Psychological Association (APA) Division 1: Society for General Psychology Division 7: Developmental Psychology (Fellow) Division 9: Society for Psychological Study of Social Issues (Fellow) Division 35: Society for the Psychology of Women Division 41: American Psychology-Law Society Division 43: Family Psychology (Fellow) Division 44: Society for Psychological Study of Lesbian, Gay & Bisexual Issues (Fellow) Society for Research in Child Development (SRCD) Association for Psychological Science (APS) National Council on Family Relations (NCFR)

Member Fellow Member

Editorial Experience 1992 - 1994 Guest Editor, Developmental Psychology. Special Issue on Sexual Orientation and Human Development (January 1995 issue) Associate Editor, Merrill-Palmer Quarterly Guest Editor, Developmental Psychology. Special Section on Sexual Orientation Across the Life Span (with Suniya Luthar and Ritch Savin-Williams) (January 2008 issue)

1997 - 2000 2006 - 2008

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Editorial Boards 1977 - 1988 1981 - 1982 1980 - 1997 1989 - 1999 1992 - 2004 1994 - 2001 1996 - 2001 1997 2000 - 2005 2001 -2010 Editorial board, Child Development Editorial board, Developmental Psychology Editorial board, Merrill-Palmer Quarterly Editorial board, Journal of Social and Personal Relationships Editorial board, Developmental Psychology Editorial board, Journal of Marriage and the Family Editorial board, Journal of the Gay and Lesbian Medical Association Editorial board, Journal of Family Psychology Editorial board, Parenting: Science and Practice Editorial board, Contemporary Perspectives on Lesbian, Gay, and Bisexual Psychology (book series published by the American Psychological Association) Editorial board, Journal of GLBT Family Studies International Advisory Group, Psychology of Sexualities Review Editorial board, Psychology and Sexuality Editorial board, Sexuality Research and Social Policy Editorial board, LGBT Health Editorial board, Psychology of Sexual Orientation and Gender Diversity

2003 2004 2010 2011 2013 2013 -

Professional Activities 1978 1979 1980 1980 - 1982 Program Committee, Southeastern Conference on Human Development Member, APA (Division 7) Boyd McCandless Award Selection Committee Program Committee, Southwestern Society for Research in Human Development Program Committee, Southeastern Conference on Human Development

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Professional Activities (continued) 1981 - 1982 1983 1983 1983 - 1984 1984 Member, APA Division 7 Public Information Committee Program Committee, biennial meetings of the SRCD Program Committee, annual meetings of the APA (Division 7) Member, Nominations Committee, APA (Division 7) Program Committee, Southeastern Conference on Human Development and annual meetings of the APA (Division 7) Program Committee, biennial meetings of the SRCD Program Committee, annual meetings of the APA (Division 7) Member, Advisory Board, Evelyn Hooker Center for Gay and Lesbian Mental Health, Department of Psychiatry, University of Chicago Member, APA (Division 43) Committee on Lesbian and Gay Family Issues Invited Participant, APF Placek Fund Conference to create a Research Agenda for Lesbian and Gay Psychology, Chicago Member, APA (Division 7) Dissertation Award selection committee Program Committee, annual meetings of the APA (Division 44) Co-organizer, conference on Lesbian, Gay, and Bisexual Identities and Families: Psychological Perspectives, Pennsylvania State University Contributing author, Lesbian and Gay Parenting: A Resource for Psychologists, published by the American Psychological Association. Wrote summary of research. Participant, Roundtable on Family Issues, National Gay and Lesbian Task Force, Washington, D. C. Panelist, NSF Graduate Research Fellowship Program, Psychology Panel Co-organizer, conference on Research on Lesbian, Gay and Bisexual Youths: Implications for Developmental Intervention, Pennsylvania State University Chair, APA (Division 7) Dissertation Award selection committee Member, Academic Advisory Board, Institute for Gay and Lesbian Strategic Studies

1985 1991 1993 - 1998

1993 - 1998 1994

1995 1995 1995

1995

1995

1996 1996

1996 1996 - 2002

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Professional Activities (continued) 1996 1997 Reviewer, APA Dissertation Research Awards Program Presented testimony on behalf of the American Psychological Association to the Institute of Medicine / National Academy of Sciences Panel on Lesbian Health Research Methodology, Washington, D.C. Member, Publication Committee, Society for Research in Child Development Member, APA Division 44 Fellows selection committee Chair, Selection Committee - Editor for Social Policy Reports, published by the Society for Research in Child Development Invited Participant, Workshop on Lesbian Health, sponsored by the U. S. Department of Health and Human Services Office on Women’s Health, by the National Institutes of Health Office of Research on Women’s Health, and other agencies, Washington DC, March 2000. Program Committee, Biennial Meetings of the Society for Research in Child Development Invited Participant, Workshop to develop a policy agenda for gay, lesbian, bisexual and transgender issues in education, convened by the National Gay and Lesbian Task Force and the Kevin J. Mossier Foundation, Minneapolis, October 2002. Program Committee, Biennial Meetings of the Society for Research in Child Development Member, APA Division 7 Fellows selection committee Interim Member, NIH Study Section, Risk Prevention and Health Behavior (RPHB-1) Member, APA Working Group on Same-Sex Families and Relationships (this group conceptualized and wrote resolutions on Marriage of Same-Sex Couples and on Same-Sex Relationships and Families that became APA policy in 2004) Co-Author, Fact Sheet on Marriage of Same-Sex Couples, produced by the National Council on Family Relations (NCFR) Contributing author, Lesbian and Gay Parenting: A Resource for Psychologists, published by the American Psychological Association. Wrote summary of research. Member, NIH Study Section, Psychosocial Development, Risk and Prevention (PDRP, formerly RPHB-1) President-Elect (2004-2005), President (2005-2006), and Past-President (2006-2007), APA Division 44 (Society for Psychological Study of Lesbian, Gay and Issues)

1997 - 2001 1998 - 2000 1999

2000

2000 - 2001 2002

2002 - 2003 2002 - 2004 2003 2004

2004

2004 - 2006

2004 - 2007

2004 - 2007

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Professional Activities (continued) 2005 Member, Academic Advisory Board, Family Equality Council (formerly called Family Pride, Inc. a national organization for lesbian, gay, bisexual and transgender parents and their children) Member, SRCD Task Force on Cultural & Contextual Diversity Member, National Advisory Board, Rockway Institute (a nonprofit group organized to promote research on lesbian, gay, bisexual and transgender issues in the public interest) Chair, SRCD Task Force on Sexual Minority Issues Member, Fellows Selection Committee, Society for Psychological Study of Social Issues (SPSSI) Member, Academic Advisory Panel, Williams Institute (research institute focused on sexual orientation and law), UCLA Law School Senior Tutor, First International Lesbian, Gay, Bisexual, and Transgender (LGBT) Psychology Summer Institute, Department of Psychology, University of Michigan, Ann Arbor MI. Member, Search Committee, Editor for Journal of Family Psychology Member, Program Committee, Biennial Meetings of the Society for Research in Child Development (SRCD) Chair, APA Division 44 Committee on Special Awards Program Scientist and Faculty Member, Center for Population Research in LGBT Health at the Fenway Institute, Fenway Health, Boston. Member, Advisory Committee for Wayne F. Placek fund, American Psychological Foundation Member, Committee on Lesbian, Gay, Bisexual and Transgender (LGBT) Health Issues & Research Gaps, United States Institute of Medicine (IOM), Board on the Health of Select Populations Member, APA Committee on Legal Issues (COLI) Member, APA Division 44 Transgender Research Award Selection Committee Senior Tutor, 2nd International Lesbian, Gay, Bisexual and Transgender (LGBT) Psychology Summer Institute, Department of Psychology, University of Michigan, Ann Arbor MI Member, United States Census, National Advisory Committee on Racial, Ethnic, and Other Populations

2005 - 2006 2006 -

2007 - 2009 2007 - 2009 2008 -

2008

2008 2008 - 2009

2009 - 2011 2009 -

2009 - 2011 2009 - 2011

2009 – 2012 2010 2010

2012 – 2014

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Publications Books D'Augelli, A. R., & Patterson, C. J. (Eds.) (1995). Lesbian, Gay and Bisexual Identities Over the Lifespan: Psychological Perspectives. New York: Oxford University Press. Patterson, C. J., & D'Augelli, A. R. (Eds.) (1998). Lesbian, Gay and Bisexual Identities in Families: Psychological Perspectives. New York: Oxford University Press. D'Augelli, A. R., & Patterson, C. J. (Eds.) (2001). Lesbian, Gay and Bisexual Identities Among Youth: Psychological Perspectives. New York: Oxford University Press. Patterson, C. J. (2008). Child Development. Boston: McGraw-Hill. Shorter version also published as: Patterson, C. J. (2008). Infancy and Childhood. Boston: McGraw-Hill. Patterson, C. J., & D’Augelli, A. R. (Eds.) (2013). Handbook of Psychology and Sexual Orientation. New York: Oxford University Press. Multimedia Materials Patterson, C. J. (2000). Multimedia Courseware for Child Development. Boston: McGraw-Hill. Articles and Chapters Thompson, R.F., Mayers, K.S., Robertson, R.T., & Patterson, C.J. (1970). Number coding in association cortex of the cat. Science, 168, 271 - 273. Mischel, W., Jeffrey, K.M., & Patterson, C.J. (1974). The layman's use of trait and behavioral information to predict behavior, Journal of Research in Personality, 8, 231 - 242. Patterson, C.J. & Mischel, W. (1975). Plans to resist distraction. Developmental Psychology, 11, 369 - 378. Patterson, C.J. & Mischel, W. (1976). Effects of temptation-inhibiting and task-facilitating plans on self-control. Journal of Personality and Social Psychology, 33, 209 - 217. Mischel, W. & Patterson, C.J. (1976). Structural and substantive elements of effective plans for self-control. Journal of Personality and Social Psychology, 34, 942 - 950. Cosgrove, J.M. & Patterson, C.J. (1977). Plans and the development of listener skills. Developmental Psychology, 13, 557 - 564. Sagotsky, G., Patterson, C.J., & Lepper, M.R. (1978). Training children's self-control: A field experiment in self-monitoring and goal-setting in the classroom. Journal of Experimental Child Psychology, 25, 242 - 253.

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Cosgrove, J.M. & Patterson, C.J. (1978). Generalization of training for children's listener skills. Child Development, 49, 513 - 516. Patterson, C.J. (1978). Teaching children to listen. Today's Education, 67 (April-May), 52 - 53. Reprinted in Speakers and Writers Sourcebook: Current Topics in Education (1979). Washington, D.C.: National Education Association. Mischel, W. & Patterson, C.J. (1978). Effective plans for children's self-control. In W. Andrew Collins (Ed.), Minnesota Symposia on Child Psychology, Volume 11. Hillsdale, N.J.: Lawrence Erlbaum Associates. Patterson, C.J., Massad, C.M., & Cosgrove, J.M. (1978). Children's referential communication: Components of plans for effective listening. Developmental Psychology, 14, 401 - 406. Patterson, C.J. & Carter, D.B. (1979). Attentional determinants of children's self-control in waiting and working situations. Child Development, 50, 272 - 275. Cosgrove, J.M. & Patterson, C.J. (1979). Adequacy of young speakers' encoding in response to listener feedback. Psychological Reports, 45, 15 - 18. Carter, D.B., Patterson, C.J., & Quasebarth, S.J. (1979). Development of the ability to use plans for self-control. Cognitive Therapy and Research, 3, 407 - 413. Patterson, C.J. & Massad, C.M. (1980). Facilitating referential communication among children: The listener as teacher. Journal of Experimental Child Psychology, 29, 357 - 370. Patterson, C.J., Cosgrove, J.M., & O'Brien, R.G. (1980). Nonverbal indicants of comprehension and noncomprehension in children. Developmental Psychology, 16, 38 - 48. Kister, M.C. & Patterson, C.J. (1980). Children's conceptions of the causes of illness: Understanding of contagion and use of immanent justice. Child Development, 51, 839 - 846. Kotsonis, M.E. & Patterson, C.J. (1980). Comprehension monitoring in learning disabled children. Developmental Psychology, 16, 541 - 542. Patterson, C.J. & Kister, M.C. (1981). The development of listener skills for referential communication. In W. Patrick Dickson (Ed.), Children's Oral Communication Skills. New York: Academic Press. Patterson, C.J., O'Brien, C., Kister, M.C., Carter, D.B., & Kotsonis, M.E. (1981). Development of comprehension monitoring as a function of context. Developmental Psychology, 17, 379 - 389. Patterson, C.J. (1982). Self-control and self-regulation in childhood. In T. Field, A. Huston et al., (Eds.), Review of Human Development. New York: Wiley. Patterson, C.J. & Roberts, R.J., Jr. (1982). Planning and the development of communication skills. In D. Forbes and M.T. Greenberg (Eds.), New Directions for Child Development: Children's Planning Strategies. San Francisco: Jossey-Bass.

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Carter, D.B. & Patterson, C.J. (1982). Sex roles as social conventions: The development of children's conceptions of sex-role stereotypes. Developmental Psychology, 18, 812 - 824. Roberts, R.J., Jr. & Patterson, C.J. (1983). Perspective-taking and referential communication: The question of correspondence reconsidered. Child Development, 54, 1005 - 1014. Patterson, C.J. (1984). Development of prosocial and aggressive behavior. In M.H. Bornstein and M.E. Lamb (Eds.), Developmental Psychology. Hillsdale, N.J.: Lawrence Erlbaum Associates. Patterson, C.J. (1985). Review of Harris and Liebert, The Child: Development from Birth through Adolescence. Contemporary Psychology, 30, 996. Patterson, C.J. (1985). Review of Making an Issue of Child Abuse: Agenda Setting for Social Problems, by Barbara J. Nelson. American Journal of Education, 94, 125 - 127. Patterson, C.J. (1987). Wittgenstein, Psychology, and the Problem of Individuality. In M. Chapman and Roger A. Dixon (Eds.), Meaning and the Growth of Understanding: Wittgenstein's Significance for Developmental Psychology. New York: Springer-Verlag. Patterson, C. J., Cohn, D. A., and Kao, B. T. (1989). Maternal warmth as a protective factor against risks associated with peer rejection among children. Development and Psychopathology, 1, 21 - 38. Patterson, C. J., Kupersmidt, J. B. & Vaden, N. A. (1990). Income level, gender, ethnicity, and household composition as predictors of children's school-based competence. Child Development, 61, 485 - 494. Patterson, C. J., Kupersmidt, J. B. & Griesler, P. C. (1990). Children's perceptions of self and of relationships with others as a function of sociometric status. Child Development, 61, 1335 - 1349. Cohn, D. A., Patterson, C. J. & Christopoulos, C. (1991). The family and children's peer relations. Journal of Social and Personal Relationships, 8, 315 - 346. Patterson, C. J., Vaden, N. A. & Kupersmidt, J. B. (1991). Family background, recent life events, and peer rejection during childhood. Journal of Social and Personal Relationships, 8, 347 - 361. Kupersmidt, J. B. & Patterson, C. J. (1991). Childhood peer rejection, aggression, withdrawal, and perceived competence as predictors of self-reported behavior problems in preadolescence. Journal of Abnormal Child Psychology, 19, 427 - 449. Patterson, C. J., Vaden, N. A., Griesler, P. C. & Kupersmidt, J. B. (1991). Income level, gender, ethnicity, and household composition as predictors of children's peer companionship outside of school. Journal of Applied Developmental Psychology, 12, 447 - 465. Klein, J. D., Forehand, B., Oliveri, J., Patterson, C. J., Kupersmidt, J. B. & Strecher, V. (1992). Candy cigarettes: Do they encourage children's smoking? Pediatrics, 89, 27 - 31. Patterson, C. J. (1992). Children of lesbian and gay parents. Child Development, 63, 1025 - 1042.

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Reprinted in: M. E. Hertzig & E. A. Farber (Eds.) (1994). Annual Progress in Child Psychiatry and Child Development, 1993 (pp. 33 - 62). New York: Brunner/Mazel. Patterson, C. J., Griesler, P. C., Vaden, N. A. & Kupersmidt, J. B. (1992). Family economic circumstances, life transitions, and children's peer relations. In R. D. Parke & G. W. Ladd (Eds.), Family-Peer Relationships: Modes of Linkage. Hillsdale, NJ: Lawrence Erlbaum Associates. Patterson, C. J. (1994). Children of the lesbian baby boom: Behavioral adjustment, self-concepts, and sex-role identity. In B. Greene & G. Herek (Eds.), Contemporary Perspectives on Lesbian and Gay Psychology: Theory, Research and Application (pp. . Beverly Hills, CA: Sage. Patterson, C. J. (1992). Children of lesbian and gay parents. Child Development, 63, 1025 - 1042. Patterson, C. J. (1994). Lesbian and gay couples considering parenthood: An agenda for research, service, and advocacy. Journal of Lesbian and Gay Social Services, 1, 33 - 55. Reprinted in: L. A. Kurdek (Ed.) (1994), Social Services for Gay and Lesbian Couples (pp. 33 - 55). New York: Haworth Press, Inc. DeRosier, M. E., Kupersmidt, J. B. & Patterson, C. J. (1994). Children's academic and behavioral adjustment as a function of the chronicity and proximity of peer rejection. Child Development, 65, 1799 - 1813. Patterson, C. J. (Ed.) (1995). Developmental Psychology, 31, Number 1: special issue on "Sexual Orientation and Human Development". Patterson, C. J. (1995). Sexual orientation and human development: An overview. Developmental Psychology, 31, 3 - 11. Patterson, C. J. (1995). Families of the lesbian baby boom: Parents' division of labor and children's adjustment. Developmental Psychology, 31, 115 - 123. D'Augelli, A. R. & Patterson, C. J. (1995). Preface. Lesbian, Gay and Bisexual Identities Over the Lifespan: Psychological Perspectives. New York: Oxford University Press. Patterson, C. J. (1995). Lesbian mothers, gay fathers, and their children. In A. R. D'Augelli & C. J. Patterson (Eds.), Lesbian, Gay and Bisexual Identities Over The Lifespan: Psychological Perspectives (pp. 262 - 290). New York: Oxford University Press. Kupersmidt, J. B., Griesler, P. C., DeRosier, M. E., Patterson, C. J. & Davis, P. W. (1995). Childhood aggression and peer relations in the context of family and neighborhood factors. Child Development, 66, 360 - 375. Patterson, C. J. (1995). Adoption of minor children by lesbian and gay adults: A social science perspective. Duke Journal of Gender Law and Policy, 2, 191 - 205. Kupersmidt, J. B., DeRosier, M. E. & Patterson, C. J. (1995). Similarity as the basis for children's friendships: The roles of sociometric status, aggressive and withdrawn behavior, academic achievement, and demographic characteristics. Journal of Social and Personal Relationships, 12, 439 - 452.

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Bolger, K. E., Patterson, C. J., Thompson, W. & Kupersmidt, J. B. (1995). Psychosocial adjustment among children experiencing persistent and intermittent family economic hardship. Child Development, 66, 1107 - 1129. Patterson, C. J. (1995). Lesbian and gay parenthood. In M. H. Bornstein (Ed.), Handbook of Parenting, Vol. 3: Status and Social Conditions of Parenting (pp. 255 - 274). Hillsdale, N. J.: Lawrence Erlbaum Associates. Kupersmidt, J. B., Burchinal, M., & Patterson, C. J. (1995). Developmental patterns of childhood peer relations as predictors of externalizing behavior problems. Development and Psychopathology, 7, 825 - 843. Patterson, C. J. (1995). Summary of research findings. In Lesbian and Gay Parenting: A Resource for Psychologists (pp. 1 - 12). Washington, D.C.: American Psychological Association. [Available as WWW Document: www.apa.org/pi/parent.html] Reprinted in: A. Sullivan (Ed.) (1997). Same-sex marriage: Pro and con --- A reader. New York: Vintage Books. Reprinted in: Association des Parents et futurs parents Gays et Lesbiens (Eds.) (1997). Petit Guide [Bibliographique] a L’Usage des Familles Homoparentales et de Autres. Paris: APGL. Excerpted as: “What research shows about gay and lesbian parents and their children”, Family Advocate, 20, 27 - 28 (1997). Patterson, C. J. (1996). Lesbian and gay parents and their children. In R. C. Savin-Williams & K. M. Cohen, Eds., The Lives of Lesbians, Gays, and Bisexuals: Children to Adults (pp. 274 - 304). New York: Harcourt Brace. Patterson, C. J., & Chan, R. W. (1996). Gay fathers and their children. In R. P. Cabaj & T. S. Stein (Eds.), Textbook of Homosexuality and Mental Health (pp. 371 - 393). Washington, D. C.: American Psychiatric Press, Inc. Patterson, C. J. (1996). Lesbian mothers and their children: Findings from the Bay Area Families Study. In J. Laird & R. J. Green (Eds.), Lesbians and Gays in Couples and Families: A Handbook for Therapists (pp. 420 - 437). San Francisco: Jossey-Bass. Pungello, E. P., Kupersmidt, J. B., Burchinal, M. R., & Patterson, C. J. (1996). Environmental risk factors and children's achievement from middle childhood to early adolescence. Developmental Psychology, 32, 755 - 767. Patterson, C. J. (1996). Review of Family Outing: A Guide for Parents of Gays, Lesbians, and Bisexuals, edited by Joy Dickens. Lesbian Review of Books, 3, no. 1, 11 - 12. Patterson, C. J. (1996). Contributions of lesbian and gay parents and their children to the prevention of heterosexism. In E. D. Rothblum & L. A. Bond (Eds.), Preventing Heterosexism and Homophobia (pp. 184-201). Thousand Oaks, CA: Sage Publications.

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Patterson, C. J., & Redding, R. (1996). Lesbian and gay families with children: Public policy implications of social science research. Journal of Social Issues, 52, 29 - 50. Patterson, C. J., and Chan, R. W. (1997). Gay fathers. In M. E. Lamb (Ed.), The role of the father in child development (3rd Edition) (pp. 245 - 260). New York: Wiley. Patterson, C. J. (1997). Children of lesbian and gay parents. In T. Ollendick & R. Prinz (Eds.), Advances in Clinical Child Psychology, Volume 19 (pp. 235 - 282). New York: Plenum Press. Reprinted in: L. D. Garnets & D. C. Kimmel (Eds.) (2003), Psychological perspectives on lesbian, gay, and bisexual experiences, 2nd Edition (pp. 497 - 548). New York: Columbia University Press. Patterson, C. J., Hurt, S., & Mason, C. D. (1998). Families of the lesbian baby boom: Children's contacts with grandparents and other adults. American Journal of Orthopsychiatry, 68, 390 - 399. Chan, R. W., Raboy, B., & Patterson, C. J. (1998). Psychosocial adjustment among children conceived via donor insemination by lesbian and heterosexual mothers. Child Development, 69, 443 - 457. Patterson, C. J., & D’Augelli, A. R. (1998). Preface. In C. J. Patterson & A. R. D’Augelli (Eds.), Lesbian, Gay and Bisexual Identities in Families: Psychological Perspectives. New York: Oxford University Press. Patterson, C. J. (1998). Family lives of children with lesbian mothers. In C. J. Patterson & A. R. D'Augelli (Eds.), Lesbian, Gay and Bisexual Identities in Families: Psychological Perspectives (pp. 154 - 176). New York: Oxford University Press. Chan, R. W., Brooks, R. C., Raboy, B., & Patterson, C. J. (1998). Division of labor among lesbian and heterosexual parents: Associations with children's adjustment. Journal of Family Psychology, 12, 402 - 419. Patterson, C. J., and Chan, R. W. (1998). Families headed by lesbian and gay parents. In M. E. Lamb (Ed.), Nontraditional families: Parenting and child development (2nd Edition). Hillsdale, N. J.: Erlbaum Associates. Bolger, K. E., Patterson, C. J., and Kupersmidt, J. B. (1998). Peer relations and self-esteem among children who have been maltreated. Child Development, 69, 1171 - 1197. Patterson, C. J. (1998). Family lives of lesbians and gay men. In A. Bellack & M. Hersen (Eds.), Comprehensive clinical psychology, Volume 9: Applications in diverse populations, N. N. Singh (Volume Ed.) (pp. 253 273). Oxford, England: Elsevier. Patterson, C. J. (1999). Children of lesbian mothers. In B. Zimmerman (Ed.), Encyclopedia of Homosexuality (2nd Edition), Volume 1: Lesbian Histories and Cultures. New York: Garland Publishing. Leff, S. S., Kupersmidt, J. B., Patterson, C. J. & Power, T. J. (1999). Factors influencing teacher identification of peer bullies and victims. School Psychology Review, 28, 505 - 517.

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Patterson, C. J. (2000). Sexual orientation and family life: A decade review. Journal of Marriage and the Family, 62, 1052 - 1069. Patterson, C. J., and Friel, L. V. (2000). Sexual orientation and fertility. In G. Bentley & N. Mascie-Taylor (Eds.), Infertility in the modern world: Biosocial perspectives (pp. 238 - 260). Cambridge: Cambridge University Press. Khatri, P., Kupersmidt, J. B., & Patterson, C. J. (2000). Aggression and peer victimization as predictors of selfreported behavioral and emotional adjustment. Aggressive Behavior, 26, 345 - 358. Patterson, C. J. (2001). Families of the lesbian baby boom: Maternal mental health and child adjustment. Journal of Gay and Lesbian Psychotherapy, 4, 91 - 107. Reprinted in: Glazer, D. F. & Drescher, J. (Eds.) (2001). Gay and Lesbian Parenting. New York: Haworth Press. Bolger, K. E., & Patterson, C. J. (2001). Developmental pathways from child maltreatment to peer rejection. Child Development, 72, 549 - 568. Bolger, K. E., & Patterson, C. J. (2001). Children’s internalizing problems and perceptions of control as functions of multiple types of maltreatment. Development and Psychopathology, 13, 913 - 940. Patterson, C. J. (2001). Nontraditional families and child development. In N. J. Smelser & P. B. Baltes (Eds.), International Encyclopedia of the Social and Behavioral Sciences. N. Eisenberg (Section Editor), Section on Developmental, Social, and Motivational Psychology. London: Elsevier Science. Patterson, C. J. (2002). Lesbian and gay parenthood. In M. H. Bornstein (Ed.), Handbook of Parenting, 2nd Edition (pp. 317 - 338). Hillsdale, N. J.: Lawrence Erlbaum Associates. Fulcher, M., Chan, R. W., Raboy, B., & Patterson, C. J. (2002). Contact with grandparents among children conceived via donor insemination by lesbian and heterosexual mothers. Parenting: Science and Practice, 2, 61 - 76. Patterson, C. J. (2002). Same-sex marriage and the interests of children: Comments on Michael Wald’s ‘Same-sex couple marriage: A family policy perspective”. Virginia Journal of Social Policy and the Law, 9, 345 - 351. Patterson, C. J., Fulcher, M., & Wainright, J. (2002). Children of lesbian and gay parents: Research, law, and policy. In B. L. Bottoms, M. B. Kovera, and B. D. McAuliff (Eds.), Children, Social Science and the Law (pp, 176 - 199). New York: Cambridge University Press. Brodzinsky, D. M., Patterson, C. J., & Vaziri, M. (2002). Adoption agency perspectives on lesbian and gay prospective parents: A national study. Adoption Quarterly, 5, 5 - 23. Bolger, K. E., & Patterson, C. J. (2003). Sequelae of child maltreatment: Vulnerability and resilience. In S. S. Luthar (Ed.), Resilience and Vulnerability: Adaptation in the Context of Childhood Adversities (pp. 156 - 181). New York: Cambridge University Press.

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Patterson, C. J., & Sutfin, E. L. (2004). Sexual orientation and parenting. In M. Hoghughi & N. Long (Eds.), Handbook of Parenting: Theory and Research for Practice (pp. 130- 145). London: Sage Publications. Patterson, C. J. (2004). Gay fathers. In M. E. Lamb (Ed.), The role of the father in child development (4th Edition) (pp. 397 - 416). New York: Wiley. Patterson, C. J. (2004). What difference does a civil union make? Changing public policies and the experiences of same-sex couples: Commentary on Solomon, Rothblum and Balsam (2004). Journal of Family Psychology, 18, 287 - 289. Patterson, C. J., Sutfin, E. L., and Fulcher, M. (2004). Division of labor among lesbian and heterosexual parenting couples: Correlates of specialized versus shared patterns. Journal of Adult Development, 11, 179 - 189. Wainright, J. L., Russell, S. T., & Patterson, C. J. (2004). Psychosocial adjustment and school outcomes of adolescents with same-sex parents. Child Development, 75, 1886 - 1898. Fulcher, M., Sutfin, E. L., Chan, R. W., Scheib, J. E., and Patterson, C.. J. (2005). Lesbian mothers and their children: Findings from the Contemporary Families Study. In A. Omoto & H. Kurtzman (Eds.), Recent Research on Sexual Orientation, Mental Health, and Substance Abuse (pp. 281 - 299). Washington, DC: American Psychological Association. Patterson, C. J. (2005). Lesbian and Gay Parents and Their Children: Summary of Research Findings. In Lesbian and Gay Parenting: A Resource for Psychologists (2nd Edition). Washington, D.C.: American Psychological Association. Available in .html or in .pdf form online at: http://www.apa.org/pi/lgbc/publications/lgparenthome.html. Reprinted in: S. Gilreath (Ed.) (2007). Sexual Identity and the Law in Context: Cases and Materials. West Publishing. Reprinted in C. G. Joslin & S. P. Minter (Eds.) (2008). Lesbian, gay, bisexual, and transgender family law. Thomson/West Publishing. Patterson, C. J., and Hastings, P. (2006). Socialization in context of family diversity. In J. Grusec & P. D. Hastings (Eds.), Handbook of Socialization (pp. 328 - 352). New York: Guilford Press. Wainright, J. L., & Patterson, C. J. (2006). Delinquency, victimization, and substance use among adolescents with female same-sex parents. Journal of Family Psychology, 20, 526 - 530. Patterson, C. J. (2006). Children of lesbian and gay parents. Current Directions in Psychological Science, 15, 241 - 244. Reprinted in: E. N. Junn & C. J. Boyatzis (Eds.) (2008), Annual Editions: Child Growth and Development 08/09 (15th Edition). New York: McGraw-Hill.

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Reprinted in: L. S. Liben (Ed.) (2009), Current Directions in Developmental Psychology (2nd Edition). Boston: Pearson Education, Inc. Reprinted in: B. Hutchinson (Ed.) (2009). Annual Editions: Human Sexualities 09/10. New York: McGraw-Hill. Reprinted in: K. R. Gilbert (Ed.) (2009). Annual Editions: The Family 10/11. New York: McGraw-Hill. Reprinted in: B. Hutchison (Ed.) (2009). Annual Editions: Gender 10/11. New York: McGraw-Hill. Reprinted in: B. Hutchison (Ed.) (2010). Annual Editions: Human Sexualities 10/11. New York: McGraw-Hill. Patterson, C. J. (2007). Lesbian and gay family issues in the context of changing legal and social policy environments. In K. J. Bieschke, R. M. Perez & K. A. DeBord & (Eds.), Handbook of Counseling and Psychotherapy with Lesbian, Gay, Bisexual and Transgender Clients (2nd Edition). Washington, D.C.: American Psychological Association. Tasker, F., and Patterson, C. J. (2007). Research on gay and lesbian parenting: Retrospect and prospect. Journal of Gay, Lesbian, Bisexual and Transgender Family Studies, 3, 9 - 34. Patterson, C. J. (2008). Sexual Orientation Across the Lifespan: Introduction to the Special Section. Developmental Psychology, 44, 1 - 4. Wainright, J. L., & Patterson, C. J. (2008). Peer relations among adolescents with female same-sex parents. Developmental Psychology, 44, 117 - 126. Sutfin, E. L., Fulcher, M., Bowles, R. P., & Patterson, C. J. (2008). How lesbian and heterosexual parents convey attitudes about gender to their children: The role of gendered environments. Sex Roles, 58, 501 - 513. Fulcher, M., Sutfin, E. L., & Patterson, C. J. (2008). Individual differences in gender development: Associations with parental sexual orientation, attitudes, and division of labor. Sex Roles, 58, 330 - 341. Telingator, C., & Patterson, C. J. (2008). Children and adolescents of lesbian and gay parents. Journal of the American Academy of Child and Adolescent Psychiatry, 47, 1364 - 1368. Patterson, C. J. (2009). Lesbian and gay parents and their children: A social science perspective. In D. A. Hope (Ed.), Contemporary Perspectives on Lesbian, Gay and Bisexual Identities: The Nebraska Symposium on Motivation, Volume 54 (pages 141-182). New York: Springer. Patterson, C. J. (2009). Lesbian and gay parents. In Shweder, R. A., Bidell, T. R., Dailey, A. C., Dixon, S.D., Miller, P. J., & Modell, J. (Eds.), The child: An encyclopedic companion. Chicago: University of Chicago Press.

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Patterson, C. J. (2009). Parental sexual orientation, social science research, and child custody decisions. In R. M. Galatzer-Levy, L. Kraus & J. Galatzer-Levy (Eds.), The scientific basis of child custody decisions (2nd Ed.). Hoboken NJ: Wiley. Farr, R. H., & Patterson, C. J. (2009). Transracial adoption by lesbian, gay, and heterosexual couples: Who completes transracial adoptions, and with what results? Adoption Quarterly, 12, 187 - 204. Patterson, C. J. (2009). Children of lesbian and gay parents: Psychology, law, and policy. American Psychologist, 64, 727 - 736. Reprinted in: Bryfonski, D. (Ed.), Opposing viewpoints: Child custody. Dallas TX: Cengage Learning. Reprinted in: Psychology of Sexual Orientation and Gender Diversity (2013), 1, 27 – 34. Riskind, R., & Patterson, C. J. (2010). Parenting intentions and desires among childless lesbian, gay, and heterosexual individuals. Journal of Family Psychology, 24, 78 - 81. Patterson, C. J. (2010). Why we need LGBTQ psychology. In D. Riggs, L. Short, V. Clarke, & S. Ellis (Eds.), LGBTQ Psychologies: Themes and perspectives. Cambridge, England (U.K.): Cambridge University Press. Farr, R. H., Forssell, S. L., & Patterson, C. J. (2010). Lesbian, gay, and heterosexual adoptive parents: Couple and relationship issues. Journal of GLBT Family Studies, 6, 199 - 213. Farr, R. H., Forssell, S. L., & Patterson, C. J. (2010). Parenting and child development in adoptive families: Does parental sexual orientation matter? Applied Developmental Science, 14, 164 - 178. Patterson, C. J., & Riskind, R. G. (2010). To be a parent: Issues in family formation among gay and lesbian adults. Journal of GLBT Family Studies, 6, 326 - 340. Patterson, C. J., & Tornello, S. L. (2010). Gay fathers’ pathways to parenthood: International perspectives. Zeitschrift fur Familienforschung (Journal of Family Psychology), Sonderheft, S. 103 – 11 Patterson, C. J., & Riskind, R. G. (2011). Adolescents with lesbian or gay parents. In M. Fisher, E. Alderman, R. Kreipe, & W. Rosenfeld (Eds.), Textbook of adolescent health care. Chicago: American Academy of Pediatrics. Patterson, C. J., & Farr, R. H. (2011). Coparenting among lesbian and gay couples. In J. McHale & K. Lindahl (Eds.), Coparenting: A Conceptual and Clinical Examination of Family Systems. Washington, DC: American Psychological Association. Patterson, C. J., & Wainright, J. L. (2011). Adolescents with same-sex parents: Findings from the National Longitudinal Study of Adolescent Health. In D. Brodzinsky & A. Pertman (Eds.), Adoption by Lesbians and Gay Men: A new dimension in family diversity. New York: Oxford University Press. Tornello, S. L., Farr, R. H., & Patterson, C. J. (2011). Predictors of parenting stress among gay fathers. Journal of Family Psychology, 25, 591 – 600.

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Lick, D. J., Schmidt, K. M., & Patterson, C. J. (2011). The Rainbow Families Scale (RFS): A measure of experiences among individuals with lesbian and gay parents. Journal of Applied Measurement, 12 (3), 222 - 241. Tornello, S. L., & Patterson, C. J. (2012). Gay fathers in mixed-orientation relationships: Experiences of those who stay in their marriages and those who leave. Journal of GLBT Family Studies, 8, 85 – 98. Lick, D. J., Tornello, S. L., Riskind, R. G., Schmidt. K. M., & Patterson, C. J. (2012). Social climate for sexual minorities predicts well-being among heterosexual offspring of lesbian and gay parents. Sexuality research and social policy, 9, 99 – 112. Patterson, C. J. (2013). Family lives of lesbian and gay adults. In G. W. Peterson and K. R. Bush (Eds.), Handbook of Marriage and the Family. New York: Springer Publishing Company. Patterson, C. J. (2013). Sexual orientation and family lives. In C. J. Patterson & A. R. D’Augelli (Eds.), Handbook of psychology and sexual orientation. New York: Oxford University Press. Farr, R. H., & Patterson, C. J. (2013). Lesbian and gay adoptive parents and their children. In A. E. Goldberg & K. R. Allen (Eds.), LGBT-Parent Families: Innovations in Research and Implications for Practice. New York: Springer. Lick, D.J., Patterson, C. J., & Schmidt, K. M. (2013). Recalled social experiences and current psychological adjustment among adults reared by lesbian and gay parents. Journal of GLBT Family Studies, 9, 230 – 253. Patterson, C. J. (2013). Schooling, sexual orientation, law and policy: Making schools safe for all students. Theory into practice, 52, 190 - 195. Farr, R. H., & Patterson, C. J. (2013). Coparenting among lesbian, gay, and heterosexual couples: Associations with adopted children’s outcomes. Child Development, 84, 1226 – 1240. Riskind, R. G., Patterson, C. J., & Nosek, B. (2013). Childless lesbian and gay adults’ self-efficacy about achieving parenthood. Couple and Family Psychology, Patterson, C. J., Riskind, R. G., & Tornello, S. L. (2013). Sexual orientation and parenting: A global perspective. For A. Abela & J. Walker, Eds., Contemporary Issues in Family Studies: Global Perspectives on Partnerships, Parenting, and Support in a Changing World. New York: Wiley/Blackwell. Patterson, C. J. (2014). Sexual minority youth and youth with sexual minority parents. In G. Melton, A. Ben-Arieh, J. Cashmore, G. Goodman, and N. Worley (Eds.), SAGE Handbook of Child Research. Sage Publications. Patterson, C. J., & Farr, R. H. (in press). Children of lesbian and gay parents: Reflections on the researchpolicy interface. In H. R. Schaffer & K. Durkin (Eds.), Blackwell handbook of developmental psychology in action. London: Blackwell.

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Riskind, R. G., Tornello, S. L., & Patterson (in press). Sexual orientation and sexual and reproductive health among adolescent young women in the United States. Journal of Adolescent Health.

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Invited Lectures (selected, since 1994) 1994 Invited Lecture, “Lesbian and gay families with children: A social science perspective”, at Duke University conference on Defining Family: Adoption Law and Policy, Durham NC. Invited Lecture, “Children of lesbian and gay parents: Social science perspectives”, at the annual meetings of the National Association of Women Judges, Scottsdale AZ. Invited Address, “Lesbian and gay families with children: Research and policy issues”, at the annual meetings of the Southeastern Psychological Association, Savannah GA. Invited Lecture, “The family lives of children with lesbian and gay parents”, at the Pennsylvania Conference on Lesbian, Gay and Bisexual Identities in the Family, University Park PA. Invited Lecture, “Contributions of lesbian and gay parents and their children to the prevention of heterosexism”, at the Vermont Conference on the Primary Prevention of Psychopathology, Burlington VT. Keynote Address, “Lesbian and gay families with children: Research and policy issues”, at Across the Curriculum: Contemporary Issues in Lesbian, Gay and Biesexual Studies, Mary Washington College, Fredericksburg VA. Invited Lecture, “Lesbian and Gay Families with Children: Research and Policy Issues”, Lesbian, Gay and Bisexual Studies Program, Yale University, New Haven CT. Invited Address, “Lesbian and gay families with children: Research, law and policy”, at the annual meetings of the American Psychological Association, Toronto (Canada). Invited Lecture, “Social and personality development of children with lesbian mothers: A research colloquium”, Lesbian, Bisexual and Gay Studies Program, Cornell University, Ithaca NY. Public Lecture, “Lesbian and Gay Families with Children”: Research, Law and Policy”, Lesbian, Bisexual and Gay Studies Program, Cornell University, Ithaca NY. Invited Lecture, “Lesbian and Gay Families with Children: Research, Law and Policy”, Department of Psychology, Tulane University, New Orleans LA. M. L. Clark Multicultural Lecture, “Lesbian and Gay Families with Children: Research, Law and Policy”, Virginia Commonwealth University, Richmond VA. Invited Lecture, “Gay/lesbian parents”, at Children, Divorce and Custody: Lawyers and Psychologists Working Together, a conference co-sponsored by the American Bar Association Section on Family Law and the American Psychological Association, Los Angeles CA. Invited Lecture, “Family context and child development: Insights from research on lesbian parenting”, Institute for Behavioral Research, University of Georgia, Athens GA. Andrea Carson Coley Memorial Lecture, “Lesbian and Gay Families with Children: Research, Law and Policy”, Women’s Studies Program, University of Georgia, Athens GA.

1994

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1997 Invited Lecture, “Who is a Child’s Parent?”, at Relatively Speaking: A Conference on Lesbian, Gay, Bisexual, and Transgender Families, New York University, New York NY. Invited Address, “Lesbian Mothers, Gay Fathers, and Their Children”, National Council on Family Relations, Crystal City VA. Invited Lecture, “Lesbian Mothers, Gay Fathers, and Their Children: Issues in Research and Policy”, Dartmouth College Women’s Center, Hanover NH. Invited Lecture, “Growing Up in a Non-Traditional Family: Children of Lesbian and Gay Parents”, for the Chancellor’s Committee on the Status of Lesbian, Gay, Bisexual, and Transgender Issues, University of Illinois at Chicago Circle, Chicago IL. Colloquium, “Children of lesbian and gay parents”, Department of Psychology, University of Illinois at Chicago Circle, Chicago IL. Keynote Address, “Lesbian and gay parents and their children”, at Lesbian and Gay Parents and Their Children — A Closer Look: A Symposium on Social Science Research, Public Policy, and Real Life, cosponsored by the Institute of Human Development, Boalt Hall School of Law, and by the Campus Advisory Committee on Lesbian, Gay, Bisexual, and Transgender Concerns at the University of California at Berkeley, Berkeley CA. Invited Workshop, “Gay Men and Lesbians as Parents: Research Results and Legal Implications”, Georgia Psychological Association, Atlanta GA. Keynote Address, “Lesbian and gay parents and their children”, for Protecting Our Families: Challenges and Strategies for Gay Men and Lesbians as Partners and as Parents, Stanford University Law School, Stanford CA. Invited Lecture, “Lesbian and Gay Parents and Their Children”, at New Approaches to Research on Sexual Orientation, Mental Health, and Substance Abuse, a workshop sponsored by the National Institutes of Health and by the American Psychological Association, Bethesda MD. Invited Public Lecture, “Children of Lesbian and Gay Parent: Recent Research”, sponsored by the Women’s Center and by the Lesbian, Gay, Bisexual and Transgender Union, University of Virginia, Charlottesville VA. Invited Workshop, “Family Issues: Domestic Partnerships, Adoption, Custody, Discrimination”, Conference on Empowering Voices for Equal Rights (EVER Conference), sponsored by Soulforce and many other religious and community organizations, St. Paul’s Memorial Episcopal Church, Charlottesville VA. Keynote Address, “Children of Lesbian Mothers”, for Lesbians/Bisexual Women Creating Families: Past, Present, and Future, Research Community Forum, Fenway Community Health Center, Boston MA. American Psychological Foundation - Roy Scrivner Memorial Lecture, “Lesbian and Gay Parents and Their Children: Recent Research”, at the annual meetings of the American Psychological Association, Washington DC. Invited commentary, “Same-Sex Marriage”, at the Fourth Annual Conference of the Center for Children, Families, and the Law, Arranging Marriage: A Place for Policy?, University of Virginia,

1997

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2000

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Charlottesville VA. 2001 Keynote Address, “Lesbian mothers, gay fathers, and their children: Issues in research and policy”, at Colloquium entitled Parentalite gaie et lesbienne: Famille en marge?, Association de canadienne pour la sante mentale-filiale de Montreal, Montreal (Canada). Invited Colloquium, “Growing up in a non-traditional family: Children of lesbian and gay parents”, University of Richmond, Department of Psychology, Richmond VA. Invited Commentary, “Child Custody Issues for Lesbian and Gay Parents”, at the Fifth Annual Conference of the Center for Children, Families, and the Law, Resolving Child Custody Disputes: Innovation and Controversy, University of Virginia, Charlottesville VA. Invited Keynote Presentation, “Children of Lesbian Mothers — A Research Perspective”, presented at the National Lesbian Healthcare Conference: Healing Works, Washington DC. Invited Workshop, “Research Update on Children of Lesbian Mothers”, presented at the National Lesbian Healthcare Conference: Healing Works, Washington DC. Sixth Annual Patten Lecture, “Children of lesbian and gay parents: A social science view”, presented at the Ackerman Institute for Family Therapy, New York NY. Invited Speaker, “Psychosocial perspectives on gay- and lesbian-parented children”. Presented at the Seventh Annual Conference on Race, Class, Gender, and Ethnicity, Adoption in the 21st Century: Redefining the Nuclear Family. University of North Carolina Law School, Chapel Hill NC. Invited Speaker, “Sequelae of child maltreatment: Developmental pathways into and out of risk”. Presented at the U. S. Children’s Bureau Adoption Opportunities / Child Abuse Prevention and Treatment Act Grantee Meeting, St. Louis MO. Invited Workshop, “Lesbian and gay identities in families”. Conference on Empowering Voices for Equal Rights (EVER Conference), sponsored by Soulforce and other religious and community organizations, St. Paul’s Memorial Episcopal Church, Charlottesville VA. Keynote Address, “Children of Lesbian and Gay Parents - A Social Science Perspective”. A Matter of Pride: Creating and Sustaining LGBT Affirming Services. Columbus Health Department, Columbus OH. Invited Colloquium, Department of Psychology, “Lesbian and gay parents and their children”, St. Mary’s College, St. Mary’s MD. Invited Speaker, “The liberty of all: Same-sex couples and the future of marriage”, Plenary Panel on Gay and Lesbian Relationships, Marriages and Families. National Council on Family Relations, Vancouver BC (Canada). Invited Participant, Roundtable on Reproductive Technologies, Families, and the Law. Cardozo School of Law, Yeshiva University, New York NY. Invited Speaker, “Sequelae of child maltreatment: Developmental pathways into and out of risk”. Presented at the U. S. Children’s Bureau Adoption Opportunities / Child Abuse Prevention and Treatment Act Grantee Meeting, Washington, DC.

2001

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2004 Invited Speaker, “Gay and Lesbian Parenting: Legal and Psychological Implications in Custody Cases”. American Bar Association / American Psychological Association, 11th National Conference on Children and the Law. Washington, DC. Keynote Speaker, “Children of Lesbian and Gay Parents”, In the Best Interest of the Child: SameGender and De Facto Parenting, Annual Conference of the Massachusetts Association of Guardians Ad Litem, Weston MA. Invited Speaker, “Sexual Orientation and Human Development - Bringing the New Scholarship into the Classroom”, at the First Biennial Society for Research in Child Development (SRCD) Developmental Science Teaching Institute, Atlanta GA. Invited Symposium Organizer and Speaker, “Adjustment among adolescents living with same-sex couples: Findings from a national sample in the United States” (with Jennifer Wainright), in C. J. Patterson (Chair), Lesbian Mothers and their Children: New Data From Three Countries. Invited Symposium presented at the Biennial Meetings of the Society for Research in Child Development (SRCD), Atlanta GA. Invited Colloquium, “Families of the rainbow: Offspring of lesbian and gay parents”, Developmental Science Colloquium Series, Virginia Polytechnic Institute and State University (Virginia Tech), Blacksburg VA.. Invited Lecture, “Families of the rainbow: Lesbian and gay parents and their children”, presented at the 54th Annual Nebraska Symposium on Motivation, Lincoln NE. Invited Presentation, “Adolescents with same-sex parents: Data from the National Longitudinal Study of Adolescent Health”, Presented at Family Pride Academic Symposium, University of Pennsylvania, Philadelphia PA.

2004

2005

2005

2006

2006

2006

2006 APA Division 44 Presidential Address, “Our families: Building a psychology of lesbian and gay family life”, presented at the annual meetings of the American Psychological Association, New Orleans LA. 2006 Invited Lecture, “Living under the rainbow: Lesbian mothers and their children”, presented at the Centre for Research on Human Development, Concordia University, Montreal (Canada). Invited Lecture, “Children of lesbian and gay parents: A social science perspective”, presented as part of the Curry Risk and Prevention Speaker Series, Curry School of Education, University of Virginia, Charlottesville VA. Invited Lecture, “Sharing our stories: Tales that bring child development research to life”, presented at the 2nd Biennial Society for Research in Child Development (SRCD) Developmental Science Teaching Institute, Boston MA. Invited Lecture, “Lesbian and gay parents and their children: A social science perspective”, presented at the Department of Human Development, State University of New York at Binghamton, Binghamton NY. Invited lecture, “Our families: Building a psychology of lesbian and gay family life”. Presented at the Bouverie Centre for Family Therapy, La Trobe University, Melbourne, Victoria (Australia). Invited talk, “Social science perspectives on lesbian and gay parented families”. Presented at the Victoria Institute for Law Reform, Melbourne, Victoria (Australia).

2007

2007

2007

2007

2007

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2007 Keynote address, “Living under the rainbow: Children of lesbian and gay parents today”. Presented at The Rainbow Families Council Interdisciplinary Symposium, Legitimizing lesbian and gay parented families, University of Melbourne Law School, Melbourne, Victoria (Australia).

2007 Invited lecture, “Fifteen years of research on sexual orientation, human development, and family life: Personal reflections”. Australian Psychological Society, Women in Psychology section, Melbourne, Victoria (Australia). 2007 Invited colloquium, “Living under the rainbow: Children of lesbian and gay parents today”. Presented at the Department of Psychology, Victoria University, Melbourne, Victoria (Australia). 2007 Invited seminar, “Sexual orientation and family lives: A social science perspective”. Presented at the Michael J. Osborne Centre, Institute for Advanced Study, La Trobe University, Melbourne, Victoria (Australia). 2007 Invited colloquium, “Sexual orientation and family lives: Psychological perspectives”. Presented at the Department of Psychology and the Interdisciplinary Relationship Science Program, UCLA, Los Angeles CA. 2007 Invited presentation, “Research on sexual orientation and parenting”. Presented at the conference entitled, EVER Onward...A million voices strong, Thomas Jefferson Memorial Unitarian Universalist Church, Charlottesville VA. 2008 Invited presentation, “Sexual orientation in the family”, Presented at the Harvard Medical School Cambridge Hospital Alliance, Continuing Medical Education course entitled Treating Contemporary Families, Boston MA. 2008 Invited colloquium, “Sexual orientation and family lives: Psychological perspectives”, Presented to the Applied Developmental Psychology Program, George Mason University, Fairfax VA. 2008 Invited session, with Hon. Patricia Logue, “Sexual orientation and custody”, for Reconceptualizing Child Custody: Past, Present, and Future - Lawyers and Psychologists Working Together, Conference of the American Psychological Association / American Bar Association (Family Law Section), Chicago IL. Invited Colloquium, “Sexual orientation and family lives: Psychological perspectives”, presented at the International LGBT Psychology Summer Institute, University of Michigan, Ann Arbor MI. Invited Workshop, “Sexual Minority Parents and Their Children: Research, Law and Policy”, presented at the International LGBT Psychology Summer Institute, University of Michigan, Ann Arbor MI. Invited presentation, “Psychological research perspectives on same-sex unions”, presented at a symposium sponsored by the Committee on Legal Issues (COLI) on Same Sex Unions - Scientific and Legal Perspectives, at the annual meetings of the American Psychological Association, Boston MA. Invited presentation, “Sexual orientation and family lives: Psychological perspectives”, presented at the Department of Psychology and LGBT Public Policy Working Group, Hunter College, City University of New York, New York NY. Keynote address, “Living under the rainbow: New research on queer family lives”, presented at Queer Families, Healthy Families, a conference about LGBT parenting, San Francisco LGBT Community Center, San Francisco CA.

2008

2008

2008

2008

2008

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2008 Invited Presentation, “Living under the rainbow: New research on queer family lives”, presented at the Williams Institute, UCLA Law School, Los Angeles CA. Invited Presentation, Williams Institute Roundtable, “Lesbian and gay parent families and the law”, University of California Building, Washington DC. Invited Colloquium, “Living under the rainbow: A social science perspective on gay and lesbian family lives”, presented for the Department of Psychology, School of Education, College of Human Ecology, and LGBT Resource Center at Syracuse University, Syracuse NY. Invited Presentation, “Living under the rainbow: New research on lesbian and gay parents and their children”, presented at the Pride and Joy Families Conference, Utica NY. Invited Address, “Children of lesbian and gay parents: Psychology, law, and policy”, presented at the annual meetings of the American Psychological Association, Toronto (Canada). Invited Colloquium, “Living under the rainbow: New research on lesbian and gay family lives”, presented at the Department of Psychology, University of Nebraska, Lincoln NE. Invited Colloquium, “Living under the rainbow: New research on lesbian and gay family lives”, presented at the Department of Psychology, Rutgers University - Newark, Newark NJ. Invited Colloquium, “Living under the rainbow: New research on lesbian and gay family lives”, presented at the Department of Psychology, University of South Florida, St. Petersburg FL. Invited Colloquium, “Living under the rainbow: New research on lesbian and gay family lives”, presented at the Department of Psychology, University of South Florida, Tampa FL. Invited Colloquium, "Living under the rainbow: New research on lesbian and gay family lives", presented at the Department of Psychology, University of Pittsburgh, Pittsburgh PA. Keynote Address, "Sexual orientation and reproductive health", presented at the Faculty Meeting of the Center for Population Research in LGBT Health, Fenway Institute, Boston MA. Invited Lecture, "Sexual orientation and reproductive health", presented at the 2nd International LGBT Psychology Summer Institute, University of Michigan, Ann Arbor MI. Invited Workshop, "Sexual orientation, parenting, and the law: Who counts as a parent?", presented at the 2nd International LGBT Psychology Summer Institute, University of Michigan, Ann Arbor MI. Invited Address, "Sexual orientation, marriage, and parenting", presented for the Presidential Program, Marriage Equality for Same-Sex Couples: Science and the Legal Debate, Carol D. Goodheart & Bonnie R. Strickland, Co-Chairs, at the annual meetings of the American Psychological Association, San Diego CA. Invited Plenary Address, "Legal recognition of same-sex couple relationships: A changing landscape", presented at the annual meetings of the American Association of Marriage and Family Therapists, Atlanta GA. Invited Lecture, "Lesbian and gay marriage and parenting: Social science research and policy", presented at "Legal Issues for LGBT People and Their Families", forum presented by Equality Virginia, at the University of Richmond, Richmond VA.

2009

2009

2009

2009

2009

2009

2009

2009

2010

2010

2010

2010

2010

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2010

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2010 Invited talk, "Lesbian and gay adoption: Looking ahead", presented at the Hunter College Center for LGBT Social Science and Public Policy, New York NY. Invited talk, “Sexual orientation and adoptive parenthood: What have we learned?”, presented at the Williams Institute 10th Anniversary Celebration and Update Conference, UCLA School of Law, Los Angeles, CA. Invited address, “Sexual orientation and adoptive parenthood: A research update”. Presented as the Kimberly Clermont Memorial Lecture, Gay and Lesbian Medical Association (GLMA), Atlanta GA. Invited address, “Sexual orientation and adoptive parenthood: A research update. Families are Plural, International Lesbian and Gay Association of Portugal, Lisbon (Portugal). Invited talk, “LGBT parents and their children: Current projects and thoughts”. Presented at the Williams Institute Parenting Roundtable, Washington DC. Invited address, “Adoptive parents and their children: Does sexual orientation matter?” Presented at The Second European Conference on LGBT Families, Barcelona (Spain). Invited talk, “Gay and lesbian parenting – A radical undertaking?”. Presented for Grand Rounds, HIV Center for Clinical and Behavioral Studies, Department of Psychiatry, Columbia University and New York State Psychiatric Institute, New York NY. Invited presentation, “Families with lesbian and gay parents“, Presented at the 22nd Annual Conference on Practical Pediatrics for the Primary Care Physician, sponsored by the Children’s Hospitals and Clinics of Minnesota, St. Paul MN. Invited presentation, “Gay and lesbian parenting today: Regular or revolutionary?” Conference on Lesbian and Gay Parents and Their Children, Tel Aviv University, Tel Aviv (Israel). Invited colloquium, “Gay and lesbian parenting today: Regular or revolutionary?” Department of Human Development and Family Studies, Penn State University, University Park PA. Panelist, LGBT Parents and Children, Austin Summit on LGBT Families, University of Texas at Austin, Austin TX. Invited talk, “Growing up with lesbian and gay parents: Recent research”, at All Families Matter, conference held at the University of Zurich, Zurich (Switzerland).

2011

2011

2011

2011

2012

2012

2012

2013

2013

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2013

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Exhibit B

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BIBLIOGRAPHY

Factors predicting children’s adjustment (general sources) Bornstein, M., & Lamb, M.E. (Eds.) (2011). Developmental science (6th ed.). New York: Taylor and Francis. Damon, W., & Lerner, R. (Eds.) ( 2006). Handbook of child psychology, Volume 3: Social, emotional, and personality development. Hoboken NJ: Wiley. Golombok, S. (2000). Parenting and child development in non-traditional families. Hove UK: Psychology Press. Grusec, J. & Hastings, P. (Eds.) (2006). Handbook of Socialization. New York: Guilford Press. Lamb, M. E. (Ed.) ( 1999). Parenting and child development in non-traditional families. Hillsdale NJ: Erlbaum. Lamb, M. E., (2010). The role of the father in child development (5th Ed.). Hoboken NJ: Wiley. Lamb, M. E. (2012). Mothers, fathers, families and circumstances: Factors affecting children’s adjustment. Applied Developmental Science, 16, 98 - 111. Lerner, R. M., Lamb, M. E., & Freund, A. (Eds.) (2010). Handbook of lifespan development. Volume 2: Social and emotional development. Hoboken NJ: Wiley. Patterson, C. J. (2008). Child development. Boston: McGraw Hill.

Sexual orientation of parents does not predict their children’s or adolescents’ adjustment Averett, P., Nalvany, B. & Ryan, S. (2009). An evaluation of gay/lesbian and heterosexual adoption. Adoption Quarterly, 12, 129 - 151. Bos, H. (2004). Parenting in planned lesbian families. Amsterdam: Vossiuspers UvA. Bos, H., van Balen, F., & van den Boom, D. (2007). Child adjustment and parenting in planned lesbian -parent families. American Journal of Orthopsychiatry, 77, 38 - 48. Brewaeys, A., Ponjaert, I., Van Hall, E., & Golombok, S. (1997). Donor insemination: Child development and family functioining in lesbian mother families. Human Reproduction, 12, 1349 - 1359.

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Brewaeys, A., & Van Hall, E. (1997). Lesbian motherhood: The impact on child development and family functioning. Journal of Psychosomatic Obstetrics and Gynecology, 18, 1 - 16. Chan, R., Raboy, B., & Patterson, C. (1998). Psychosocial development among children conceived via donor insemination by lesbian and heterosexual mothers. Child Development, 69, 443 - 457. Chan, R., Brooks, R., Raboy, B., & Patterson, C. (1998). Division of labor among lesbian and heterosexual parents: Associations wiht children’s adjustment. Journal of Family Psychology, 12, 402 - 419. Erich, S., Kanenberg, H., Case, K., Allen, T. & Bogdanos, T. (2009). An empirical analysis of factors affecting adolescent attachment in adoptive families with homosexual and straight parents. Children and Youth Services Review, 31, 398 - 404. Farr, R., Forssell, S., & Patterson, C. (2010). Parenting and child development in adoptive families: Does parental sexual orientation matter? Applied Developmental Science, 14, 164 178. Farr, R., & Patterson, C. (2013). Coparenting among lesbian, gay, and heterosexual couples: Associations with adopted children’s outcomes. Child Development, 84, 1226 – 1240. Gartrell, N., & Bos, H. (2010). U. S. National Longitudinal Lesbian Family Study: Psychological adjustment of 17 year old adolescents. Pediatrics, 126, 28 - 36. Golombok, S., & Badger, S. (2010). Children raised in mother-headed families from infancy: A follow-up of children of lesbian and single heterosexual mothers in early adulthood. Human Reproduction, 25, 150 - 157. Golombok, S., Perry, B., Burston, A., Murray, C., Mooney-Somers, J., Stevens, M., & Golding, J. (2003). Children with lesbian parents: A community study. Developmental Psychology, 39, 20 - 33. Golombok, S., Spencer, A., & Rutter, M. (1983). Children in lesbian and single parent households: Psychosexual and psychiatric appraisal. Journal of Child Psychology & Psychiatry, 24, 551 - 572. Golombok, S., & Tasker, F. (1996). Do parents influence the sexual orientation of their children? Findings from a longitudinal study of lesbian families. Developmental Psychology, 32, 3 - 11. Golombok, S., & Tasker, F. (2010). Gay fathers. In M. E. Lamb (Ed.), The role of the father in child development (5th Ed.). Hoboken NJ: Wiley.

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Golombok, S., Tasker, F., & Murray, C. (1997). Children raised in fatherless families from infancy: Family relationships and the socioemotional development of children of lesbian and single heterosexual mothers. Journal of Child Psychology and Psychiatry, 38, 783 - 792. Lamb, M. E. (2012). Mothers, fathers, families and circumstances: Factors affecting children’s adjustment. Applied Developmental Science, 16, 98 - 111. MacCallum, F., & Golombok, S. (2004). Children raised in fatherless families from infancy: A follow-up of children of lesbian and single heterosexual mothers at early adolescence. Journal of Child Psychology and Psychiatry, 45, 1407 - 1419. Patterson, C. J. (1995). Sexual orientation and human development: An overview. Developmental Psychology, 31, 3 - 11. Patterson, C. J. (1995). Families of the lesbian baby boom: Parents' division of labor and children's adjustment. Developmental Psychology, 31, 115 - 123. Patterson, C. J. (1996). Lesbian mothers and their children: Findings from the Bay Area Families Study. In J. Laird & R. J. Green (Eds.), Lesbians and Gays in Couples and Families: A Handbook for Therapists (pp. 420 - 437). San Francisco: Jossey-Bass. Patterson, C. J. (1997). Children of lesbian and gay parents. In T. Ollendick & R. Prinz (Eds.), Advances in Clinical Child Psychology, Volume 19 (pp. 235 - 282). New York: Plenum Press. Patterson, C. J. (2000). Sexual orientation and family life: A decade review. Journal of Marriage and the Family, 62, 1052 - 1069. Patterson, C. J. (2001). Families of the lesbian baby boom: Maternal mental health and child adjustment. Journal of Gay and Lesbian Psychotherapy, 4, 91 - 107. Patterson, C. J. (2006). Children of lesbian and gay parents. Current Directions in Psychological Science, 15, 241 - 244. Patterson, C. J., and Chan, R. W. (1998). Families headed by lesbian and gay parents. In M. E. Lamb (Ed.), Nontraditional families: Parenting and child development (2nd Edition). Hillsdale, N. J.: Erlbaum Associates. Patterson, C. J., Fulcher, M., & Wainright, J. (2002). Children of lesbian and gay parents: Research, law, and policy. In B. L. Bottoms, M. B. Kovera, and B. D. McAuliff (Eds.), Children, Social Science and the Law (pp, 176 - 199). New York: Cambridge University Press. Patterson, C. J., Hurt, S., & Mason, C. D. (1998). Families of the lesbian baby boom: Children's contacts with grandparents and other adults. American Journal of Orthopsychiatry, 68, 390 399.

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Patterson, C. J., & Redding, R. (1996). Lesbian and gay families with children: Public policy implications of social science research. Journal of Social Issues, 52, 29 - 50. Patterson, C. J., & Wainright, J. L. (2011). Adolescents with same-sex parents: Findings from the National Longitudinal Study of Adolescent Health. In D. Brodzinsky & A. Pertman (Eds.), Adoption by Lesbians and Gay Men: A new dimension in family diversity. New York: Oxford University Press. Rosenfeld, M. (2010). Nontraditional fmailies and childhood progress through school. Demography, 47, 755 - 775. Tan, T., & Baggerly, J. (2009). Behavioral adjustment of adopted Chinese girls in singlemother, lesbian couple, and heterosexual couple households. Adoption Quarterly, 12, 171 - 186. Tasker, F. (2005). Lesbian mothers, gay fathers, and their children: A review. Developmental and Behavioral Pediatrics, 26, 224 - 240. Tasker, F., & Golombok, S. (1997). Growing up in a lesbian family. New York: Guilford Press. Vanfraussen, K., Ponjaert-Kristoffersen, I, & Brewaeys, A. (2002). What does it mean for youngsters to grow up in a lesbian family created by means of donor insemination. Journal of Reproductive and Infant Psychology, 20, 237 - 252. Vanfraussen, K., Kristoffersen, I., & Brewaeys, A. (2003). Family functioning in lesbian families created by donor insemination. American Journal of Orthopsychiatry, 73, 78 - 90. Wainright, J. L., & Patterson, C. J. (2006). Delinquency, victimization, and substance use among adolescents with female same-sex parents. Journal of Family Psychology, 20, 526 - 530. Wainright, J. L., & Patterson, C. J. (2008). Peer relations among adolescents with female samesex parents. Developmental Psychology, 44, 117 - 126. Wainright, J. L., Russell, S. T., & Patterson, C. J. (2004). Psychosocial adjustment and school outcomes of adolescents with same-sex parents. Child Development, 75, 1886 - 1898.

Same sex couples can provide stable family environments in which children can thrive Erich, S., Kanenberg, H., Case, K., Allen, T. & Bogdanos, T. (2009). An empirical analysis of factors affecting adolescent attachment in adoptive families with homosexual and straight parents. Children and Youth Services Review, 31, 398 - 404. Farr, R., Forssell, S., & Patterson, C. (2010). Parenting and child development in adoptive families: Does parental sexual orientation matter? Applied Developmental Science, 14, 164 178.

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Fingerhut, A., & Peplau, L. A. (2013). Same-sex romantic relationships. In C. Patterson & A. D’Augelli (Eds.), Handbook of Psychology and Sexual Orientation. New York: Oxford University Press. Kurdek, L. (2003). Differences between gay and lesbian cohabiting couples. Journal of Social and Personal Relationships, 20, 411 - 436. Kurdek, L. (2004). Are gay and lesbian cohabiting families really different from heterosexual married couples? Journal of Marriage and Family, 66, 880 - 900. Kurdek, L. (2006). What do we know about gay and lesbian couples? Current Directions in Psychological Science, 14, 251 - 254. Kurdek, L. (2006). Differences between partners from heterosexual, gay and lesbian couples. Journal of Marriage and Family, 68, 1 - 20. Kurdek, L. (2006). The nature and correlates of deterrents to leaving a relationship. Personal Relationships, 13, 521 - 535. Kurdek, L. (2007). The allocation of household labor by partners in gay and lesbian couples. Journal of Family Issues, 28, 132 - 148. Kurdek, L. (2008). Change in relationship quality for partners from lesbian, gay male, and heterosexual couples. Journal of Family Psychology, 22, 701 - 711. Kurdek, L.(2009). Assessing the health of a dyadic relationship in heterosexual and same-sex partners. Personal Relationships, 16, 117 - 127. Patterson, C. (1996). Lesbian mothers and their children: Findings from the Bay Area Families Study. In J. Laird & R. J. Green (Eds.), Lesbians and gays in couples and families: A handbook for therapists. San Francisco: Jossey-Bass.

Children reared by same-sex parents are not more likely to have same-sex orientations themselves Bailey, J. M., Bobrow, D., Wolfe, M., & Mikach, S. (1995). Sexual orientation of adult sons of gay fathers. Developmental Psychology, 31, 124 - 129. Golombok, S., & Badger, S. (2010). Children raised in mother-headed families from infancy: A follow-up of children of lesbian and single heterosexual mothers in early adulthood. Human Reproduction, 25, 150 - 157. Tasker, F., & Golombok, S. (1997). Growing up in a lesbian family: Effects on child development. New York: Guilford Press.

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Wainright, J. L., Russell, S. T., & Patterson, C. J. (2004). Psychosocial adjustment and school outcomes of adolescents with same-sex parents. Child Development, 75, 1886 - 1898.

Parents not biologically related to their children can provide good parenting Farr, R., Forssell, S., & Patterson, C. (2010). Parenting and child development in adoptive families: Does parental sexual orientation matter? Applied Developmental Science, 14, 164 178. Farr, R., & Patterson, C. (2013). Coparenting among lesbian, gay, and heterosexual couples: Associations with adopted children’s outcomes. Child Development, 84, 1226 – 1240. Golombok, S., Cook, R., Bish, A., Murray, C. (1995). Families created by the new reproductive technologies: Quality of parenting and social and emotional development of the child. Child Development, 66, 285 - 298. Golombok, S., Jadva, V. Lycett, E., Murray, C., & MacCallum, F. (2005). Families created by gamete donation: Follow-up at age 2. Human Reproduction, 20, 286 - 293. Golombok, S., Lycett, E., MacCallum, F., Jadva, V., Murray, C., Rust, J., Abdalla, H., Jenkins, J., and Margara, R. (2004). Parenting infants conceived by gamete donation. Journal of Family Psychology, 18, 443 - 452. Golombok, S., MacCallum, F., Goodman, E., & Rutter, M. (2002). Families with children conceived by donor insemination: A follow-up at age twelve. Child Development, 73, 952 - 968. Golombok, S., Murray, C., Brinsden, P., & Abdalla, H. (1999). Social versus biological parenting: Family functioning and the socioemotional development of children conceived by egg or sperm donation. Journal of Child Psychology and Psychiatry, 40, 519 - 527. Golombok, S., Murray, C., Jadva, V., Lycett, E., MacCallum, F., & Rust, J. (2006). Non-genetic and non-gestational parenthood: Consequences for parent-child relationships and the psychological well-being of mothers, fathers, and children at age 3. Human Reproduction, 21, 1918 - 1924. Jadva, V., Freeman, T., Kramer, W., & Golombok, S. (2009). The experiences of adolescents and adults conceived by sperm donation: Comparisons by age of disclosure and family type. Human Reproduction, 24, 1909 - 1919. Juffer, F., & van Ijzendoorn, M. (2007). Adoptees do not lack self-esteem: A meta-analysis of studies of self-esteem of transracial, international, and domestic adoptees. Psychological Bulletin, 133, 1067 - 1083. Lansford, J., Ceballo, R., Abbey, A., & Stewart, A. (2001). Does family structure matter? A comparison of adoptive, two-parent biological, single mother, stepfather, and stepmother households. Journal of Marriage and the Family, 63, 840 - 851.

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MacCallum, F., & Keeley, S. (2007). Embryo donation families: A follow-up in middle childhood. Journal of Family Psychology, 22, 799 - 808. Palacios, J., & Brodzinsky, D. (2010). Adoption research: Trends, topics, and outcomes. International Journal of Behavioural Development, 34, 270 - 284. Stams, G., Juffer, F., & van Ijzendoorn, M. (2002). Maternal sensitivity, infant attachment, and temperament in early childhood predict adjustment in middle childhood: The case of adopted children and their biologically unrelated parents. Developmental Psychology, 38, 806 - 821. Van Ijzendoorn, M., & Juffer, F. (2006). Adoption as intervention: Meta-analytic evidence for massive catch-up and plasticity in physical, socio-emotional, and cognitive development. Journal of Child Psychology and Psychiatry, 47, 1228 - 1245. Van Ijzendoorn, M., Juffer, F., & Klein Poelhuis, C. (2005). Adoption and cognitive development: A meta-analytic comparison of adopted and non-adopted children’s IQ and school performance. Psychological Bulletin, 131, 301 - 306.

Demographic information about same-sex couples and parents in Utah, and likely benefits for children in these families if their parents could obtain legal recognized marriages Badgett, M. (2011). Social inclusion and the value of marriage equality in Massachusetts and the Netherlands. Journal of Social Issues, 67, 316 – 334. Gates, G. (2009). Same-sex spouses and unmarried partners in the American Community Survey, 2008. Williams Institute, UCLA School of Law. Gates, G. (2013). LGBT parenting in the United States. Williams Institute, UCLA School of Law. Gonzales, G., & Blewett, L. (2013). Disparities in health insurance among children with samesex parents. Pediatrics, 132, pp. Herman, J., Mallory, C., Badgett, M., & Gates, G. (2010). Census snapshot: Utah. Williams Institute, UCLA School of Law. Riggle, E., Rostosky, S., & Horne, S. (2010). Psychological distress, well-being, and legal recognition in same-sex couple relationships. Journal of Family Psychology, 24, 82 – 86. Wight, R., LeBlanc, A., & Badgett, L. (2013). Same-sex legal marriage and psychological wellbeing: Findings from the California Health Interview Survey. American Journal of Public Health, 103, 339 – 346.

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Other Sources Allen, D. W. (2013). High school graduation rates among children of same-sex households. Review Econ. Household. Published online 26 September 2013, DOI:10.1007/s11150-013-9220-y. Regnerus, M. (2012). How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study. Social Science Research, 41, 752 – 770.

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Exhibit 5

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JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice) PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 Email: jdavidson@lambdalegal.org tborelli@lambdalegal.org prenn@lambdalegal.org sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050 CARLA CHRISTOFFERSON (pro hac vice) DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071 Email: cchristofferson@omm.com dsestito@omm.com mcristol@omm.com razizi@omm.com Tel: 213.430.6000 | Fax: 213.430.6407 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 Email: kdove@swlaw.com mbute@swlaw.com Tel: 702.784.5200 | Fax: 702.784.5252
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BEVERLY SEVCIK and MARY BARANOVICH; ANTIOCO CARRILLO and THEODORE SMALL; KAREN GOODY and KAREN VIBE; FLETCHER WHITWELL and GREG FLAMER; MIKYLA MILLER and KATRINA MILLER; ADELE TERRANOVA and TARA NEWBERRY; CAREN
No. 2:12-CV-00578-RCJ-PAL

DECLARATION OF LETITIA ANNE PEPLAU, PH.D. IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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CAFFERATA-JENKINS and FARRELL CAFFERATA-JENKINS; and MEGAN LANZ and SARA GEIGER, Plaintiffs, v. BRIAN SANDOVAL, in his official capacity as Governor of the State of Nevada; DIANA ALBA, in her official capacity as Clerk for Clark County; AMY HARVEY, in her official capacity as Clerk for Washoe County; and ALAN GLOVER, in his official capacity as Clerk-Recorder for Carson City, Defendants

I, Letitia Anne Peplau, Ph.D., hereby declare and state as follows: PRELIMINARY STATEMENT 1. My professional background, experience, and publications are detailed in my

curriculum vitae, which is attached as Exhibit A to this declaration. I have been retained by counsel for Plaintiffs as an expert in connection with the above-captioned litigation. I have actual knowledge of the matters stated in this declaration and could and would so testify if called as a witness. 2. I was a Professor of Psychology at the University of California, Los Angeles

beginning in 1973, with promotions to tenure in 1978, to full professor in 1982, and to Distinguished Professor in 2010. From 2005-2011, I served as Director of the UCLA Interdisciplinary Relationship Science Program. This program, funded by the National Science Foundation, trained doctoral students in the study of families and other personal relationships. I formally retired from UCLA in June 2011, but am continuing to work at UCLA as Distinguished Research Professor and as the Psychology Department Vice Chair for Graduate Studies. 3. In broad terms, my research addresses topics concerning personal relationships,

gender, and sexual orientation. I have conducted research on heterosexual couples, co-authored a book entitled Close Relationships, and published articles comparing empirical findings about

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men’s and women’s experiences in close relationships. In the 1970s, I was one of the first researchers to conduct empirical investigations of the intimate relationships of lesbians and gay men, and I have continued this program of research for the past 30 years. In addition, I have written several major reviews of the scientific research on same-sex relationships, including a 2007 article in the Annual Review of Psychology and a 2009 article in the Encyclopedia of Human Relationships. I have also conducted empirical studies on gay and lesbian identity. 4. I received my B.A. in Honors Psychology from Brown University in 1968 and my

Ph.D. in Social Psychology from Harvard University in 1973. As reflected in my curriculum vitae (Exhibit A), I have published more than 120 papers in scholarly journals and scholarly books, primarily in the field of couple relationships. I have co-authored or co-edited over 10 books, and I have frequently presented my research at universities and scientific meetings. 5. My expertise extends beyond the specific areas addressed in my own empirical

research program to include other theory and empirical research related to sexual orientation and same-sex relationships. A broad knowledge of this area has been necessary not only for my own scholarship, but also for successfully completing my professional duties as a teacher, as Director of the UCLA Interdisciplinary Relationship Science Program, and as a reviewer of academic journals and book manuscripts. 6. As a result of my research and other accomplishments, I have received several

professional awards. I have been elected a fellow of the American Psychological Association and of the Association for Psychological Science. I have received lifetime achievement awards from the American Psychological Association, the International Association for Relationship Research, and the Society for the Scientific Study of Sexuality. I also had the honor of being elected president of the International Society for the Study of Personal Relationships (an organization since renamed the International Association for Relationship Research). 7. In preparing this Declaration, I reviewed the Complaint in this case, and the

materials listed in the attached Bibliography (Exhibit B). I may rely on those documents, in addition to the documents specifically cited as supportive examples in particular sections of this Affidavit, as additional support for my opinions. I have also relied on my years of experience in

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this field, as set out in my curriculum vitae (Exhibit A), and on the materials listed therein. 8. In the past four years, I have testified as an expert – either at trial or through

declaration – or been deposed as an expert in In the Matter of the Adoption of X.X.G. and N.R.G. in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida, Case No. 06-43881 FC 04, Cole v. The Arkansas Department of Human Services in the Circuit Court of Pulaski County, Arkansas, Case No. CV2008-14284, Perry v. Schwarzenegger, Case No. 09-CV2292 VRW (N.D. Cal.), Golinski v. Office of Personnel Management, 3:10-cv-0257-JSW (N.D. Cal.), Windsor v. U.S., No. 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y.), Pedersen v. Office of Personnel Management, No. 3:10-cv-01750-VLB (D. Conn.), Dragovich v. U.S. Dep’t of the Treasury, CV 4:10-01564-CW (N.D. Cal.), and Donaldson and Guggenheim v. Montana in the Montana First Judicial District Court, Lewis and Clark County, Case No. BDV-2010-702. 9. For my work in this matter, I am being compensated at my standard consulting rate

of $300 per hour for preparation time, time spent writing my report, and time spent giving deposition and trial testimony. My compensation does not depend on the outcome of this litigation, the opinions I express, or the testimony I provide. I. Summary of Opinions 10. Sexual orientation refers to an enduring pattern of emotional, romantic, and/or

sexual attractions to men, women, or both sexes. Most adults are attracted to and form relationships with members of only one sex. Efforts to change a person’s sexual orientation through religious or psychotherapy interventions have not been shown to be effective. 11. It is well-established that homosexuality is a normal expression of human

sexuality. It is not a mental illness, and being gay or lesbian has no inherent association with a person’s ability to lead a happy, healthy, and productive life or to contribute to society. 12. Research shows that same-sex couples closely resemble heterosexual couples.

Like their heterosexual counterparts, many lesbian, gay, and bisexual individuals form loving, long-lasting relationships with a partner. 13. Marriage provides a range of social and other benefits and protections to spouses.

These contribute to enhanced psychological well-being, physical health, and longevity among

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married individuals. Domestic partnerships are not as well-understood or respected by the community as marriage, which has significant cultural values and expectations. Same-sex couples are therefore harmed by being excluded from marriage. 14. In the United States, lesbian, gay, and bisexual individuals experience pervasive

social stigma and the added stress that results from prejudice and discrimination. Stigma is reflected both in acts of individuals and in the institutions of society, including its laws, that legitimate and perpetuate the second-class status of gay men, lesbians, and bisexuals. Nevada’s exclusion of same-sex couples from marriage both reflects and perpetuates stigma against lesbians, gay men, and same-sex couples. The stigma and discrimination perpetuated by Nevada’s exclusion harm not only same-sex couples, but gay men, lesbians, and bisexuals as a group. 15. There is no scientific support for the notion that allowing same-sex couples to

marry would harm different-sex relationships or marriages. The factors that affect the quality, stability, and longevity of different-sex relationships would not be affected by marriages between same-sex couples. II. Understanding Sexual Orientation A. 16. What is Sexual Orientation? The American Psychological Association provides a widely accepted definition of

sexual orientation: “Sexual orientation refers to an enduring pattern of emotional, romantic, and/or sexual attractions to men, women, or both sexes. Sexual orientation also refers to a person’s sense of identity based on those attractions, related behaviors, and membership in a community of others who share those attractions.”1 17. Beginning with the research of Alfred Kinsey in the 1940s, researchers have

recognized that sexual orientation can range along a continuum from exclusively heterosexual to exclusively homosexual. Nonetheless, it is most often discussed in terms of three categories: heterosexual (having emotional, romantic, or sexual attractions to members of the other sex), gay/lesbian (having attractions to members of one’s own sex), and bisexual (having attractions to
1

American Psychological Association, 2008; Herek, 2000.
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both men and women). Most adults in the United States can readily categorize themselves as heterosexual, gay/lesbian, or bisexual.2 The specific category name that an individual prefers (e.g., homosexual, gay) may vary3, but in national surveys in the U.S., nearly all participants are able to indicate their sexual orientation category. 18. For clarity, it is important to distinguish sexual orientation from other aspects of

sex and gender. These include biological sex (the anatomical, physiological, and genetic characteristics associated with being male or female), gender identity (an individual’s psychological sense of being male or female), and gender-role orientation (the extent to which an individual conforms to cultural norms defining feminine and masculine behavior). 19. Social scientists view sexual orientation as a multi-faceted phenomenon involving

attractions, related behaviors, and identity. In research studies, the particular component of sexual orientation that researchers assess will differ depending on the purpose of the research. For example, a study about the experiences of individuals in same-sex marriages would recruit participants based on their behavior of marrying a person of the same sex. A study of personal experiences of social stigma and discrimination among openly gay and lesbian individuals would most likely recruit individuals who self-identify as gay or lesbian. 20. Sexual orientation is inherently linked to social relationships. Sexual orientation is

a characteristic of an individual, like their biological sex, age, or race, and it is also about relationships – whether an individual is attracted sexually or romantically to partners of the same sex or the opposite sex.4 Just as heterosexual individuals often express their sexual orientation

through relationships including marriage with a different-sex partner, so gay and lesbian individuals express their sexual orientation through relationships including marriage with a samesex partner. Further, sexual orientation is not merely about sexual behavior but also about building enduring intimate relationships. In other words, sexual orientation is centrally linked to the most important personal relationships that adults form with other adults in order to meet their basic human needs for love, attachment, and intimacy. These relationships, whether with a sameSee, e.g., Chandra, Mosher, Copen & Sionean, 2011, pp 29-30; Laumann, Gagnon, Michael & Michaels, 1994, p. 293. 3 See, e.g., Herek, Norton, Allen & Sims, 2010. 4 Peplau & Cochran, 1990; Peplau & Fingerhut, 2007.
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sex or different-sex partner, are an essential part of an individual’s personal identity. B. 21. Can Sexual Orientation Be Changed? Currently, the precise factors that cause an individual to be heterosexual,

homosexual, or bisexual are still being researched. Much research has examined possible genetic, prenatal hormonal, developmental, and social influences on sexual orientation, and many scientists view sexual orientation as resulting from the interplay of those factors.5 22. A consistent finding across many studies, beginning with the work of Alfred

Kinsey in the 1940s and 1950s and continuing through current research, is that most adults report having sexual attractions to and experiences with members of only one sex.6 As adults, the majority of these individuals have had exclusively heterosexual experiences and attraction, and a minority have had exclusively same-sex experiences and attraction. A small percentage of adults report sexual attractions and experiences with both sexes.7 23. The significant majority of adults exhibit a consistent and enduring sexual

orientation.8 The fact that many lesbian and gay adults form long-term intimate relationships with a partner of the same sex,9 just as heterosexual adults do with a partner of the other sex, provides evidence of the stability of sexual orientation over time. Nonetheless, a small minority of individuals are exceptions to this majority pattern. For example, while in prison, some men who identify as heterosexual may nonetheless engage in sexual activities with men since female partners are unavailable. Some individuals have reported changes in their sexual orientation in midlife, perhaps as a result of meeting a particular person. Understanding these kinds of exceptions to the general pattern of stable sexual orientation described above is of theoretical interest to scholars. Researchers have used terms like “sexual fluidity” or “sexual plasticity” to American Psychological Association, 2008. Kinsey, Pomeroy & Martin, 1948; Kinsey, Pomeroy, Martin & Gebhard, 1953; Laumann, et al., 1994; Chandra, et al., 2011. 7 Some individuals are very clear about their sexual orientation at an early age. In contrast, because of the social prejudice and discrimination against gay men and lesbians, some adolescents and young adults go through a prolonged period of trying to understand their own sexual identity and coming to terms with being lesbian, gay, or bisexual. 8 Based on large-scale survey data, Chandra et al. (2011, p. 1) conclude that “Sexual attraction and identity correlate closely but not completely with reports of sexual behavior.” Thus, most heterosexual individuals do not engage in sexual activity with same-sex partners, and most gay and lesbian individuals similarly do not engage in heterosexual behavior. 9 Carpenter & Gates, 2008; see also Peplau & Fingerhut, 2007.
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refer to changes in sexual behavior, attractions, and identity over time or across situations. Importantly, observations about fluidity in a small minority of people should not obscure the big picture of stability for the majority of adults. In a discussion of women’s sexual fluidity, Peplau and Garnets10 noted: “Claims about the potential erotic plasticity of women do not mean that most women will actually exhibit change over time. At a young age, many women adopt patterns of heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of same-sex attractions and relationships.” Nor does the fact that a small minority of people may experience some change in their sexual orientation over their lifetime suggest that such change is within their power to effect, let alone that individuals outside this small minority have the power to change voluntarily their sexual orientation. This is why standard definitions of sexual orientation characterize it as stable. 24. Before the emergence of gay communities in the United States, it was fairly

common for lesbians and gay men to marry a person of the other sex.11 They entered these ostensibly “heterosexual” marriages for diverse reasons: to avoid social stigma, in response to pressure from family and friends, from a belief that marriage was the only way to have children, and/or to participate in a fundamental social institution. In some cases, these individuals only recognized or acknowledged their sexual orientation after marriage. It is psychologically harmful to ask lesbians and gay men to deny a core part of who they are by ignoring their attraction to same-sex partners and instead marrying a different-sex partner. Moreover, the disclosure that a spouse is gay or lesbian is often hurtful to the heterosexual spouse, highly upsetting to their children or other family members, and frequently sets the stage for separation or divorce. Therefore, encouraging gay men and lesbians to enter into a marriage with a heterosexual partner is not in the best interests of the individuals or the interests of society. 25.
10 11

When gay men and lesbians are asked by researchers about their sexual

orientation, the vast majority report that they experienced no choice or very little choice about Peplau & Garnets, 2000, p. 333. Bozett, 1982; Higgins, 2006. Researchers have estimated the percentage of lesbians and gay men who have been married. An analysis of responses to a 2003 survey of adults in California found that about 25% of lesbians and 9% of gay men ages 18-59 reported having ever been married, most of them presumably to a person of the other sex (Carpenter & Gates, 2008, Table 3).
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their sexual orientation. In a national survey conducted with a representative sample of more than 650 self-identified lesbian, gay, and bisexual adults, 95% of the gay men and 83% of the lesbians reported that they experienced “no choice at all” or “very little choice” about their sexual orientation.12 26. Sexual orientation is highly resistant to change through psychological or religious

interventions. Recently, the American Psychological Association appointed a task force to conduct a systematic review of the peer-reviewed journal literature on sexual orientation change efforts.13 The Task Force concluded that “efforts to change sexual orientation are unlikely to be successful and involve some risk of harm” (p. 3). Based on currently available research, there is no credible evidence that these efforts are either effective or safe, and ample reason to believe that these interventions can harm those who participate.14 The Task Force also found evidence that many individuals who unsuccessfully attempt to change their sexual orientation experience considerable psychological distress including anxiety, depression, thoughts of suicide, and sexual dysfunction. 27. Currently, no major mental health professional organization has approved

interventions to change sexual orientation, and virtually all of them have adopted policy Herek, Norton, Allen & Sims, 2010. In that survey, 88% of gay men reported that they had ”no choice,” and 7% reported “very little choice.” Similarly, 68% of lesbians responded that they had “no choice at all,” and 15% reported having “very little choice.” See also results from a California survey by Herek, Gillis & Cogan, 2009, Table 5. 13 APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation, 2009, Report of the Task Force on Appropriate Therapeutic Responses to Sexual Orientation. Washington, DC: American Psychological Association. This report provides a detailed review and analysis of relevant research. Available at: http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf. 14 Although some psychotherapists and religious counselors have reported changing their clients’ sexual orientation from homosexual to heterosexual, empirical support for these claims is lacking. After reviewing published empirical research on this topic, the APA Task Force reported that it found “serious methodological problems in this area of research, such that only a few studies met the minimal standards for evaluating whether psychological treatments, such as efforts to change sexual orientation, are effective” (p. 2). Based on its review of the studies that met acceptable standards, the Task Force concluded that “enduring change to an individual’s sexual orientation is uncommon. The participants in this body of research continued to experience same-sex attractions following SOCE [sexual orientation change efforts] and did not report significant change to other-sex attractions that could be empirically validated, though some showed lessened physiological arousal to all sexual stimuli. Compelling evidence of decreased same-sex sexual behavior and of engagement in sexual behavior with the other sex was rare. Few studies provided strong evidence that any changes produced in laboratory conditions translated to daily life. Thus, the results of scientifically valid research indicate that it is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex sexual attractions through SOCE” (pp. 2-3).
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statements cautioning professionals and the public about these treatments.15 These include the American Psychiatric Association, American Psychological Association, American Counseling Association, and National Association of Social Workers. Further, since adolescents may be subjected to these treatments after disclosing to their families that they are gay, lesbian, or bisexual, the American Academy of Pediatrics has adopted a policy statement advising that therapy directed specifically at attempting to change an adolescent’s sexual orientation should be avoided and is unlikely to result in change. The Pan American Health Organization, which is the World Health Organization’s regional office for the Americas and the oldest public health organization in the world, has stated that “there is no scientific evidence for the effectiveness” of efforts to change sexual orientation.16 28. In summary, there is convergent scientific evidence documenting that sexual

orientation reflects an enduring set of attractions and experiences for most people. Efforts to change a person’s sexual orientation through religious or psychotherapy interventions have not been shown to be effective. III. Sexual Orientation Does Not Affect a Person’s Ability to Function Effectively 29. The consensus view of scientific researchers and mental health professionals is

that homosexuality is a normal expression of human sexuality. Homosexuality is not a mental illness, and being gay or lesbian has no inherent association with a person’s ability to participate in or contribute to society.17 Lesbians and gay men are as capable as heterosexuals of leading a happy, healthy, and productive life. They are also as capable as heterosexuals of doing well in their jobs and of excelling in school. 30. Although homosexuality was once believed to be a mental illness, that mistaken

view was discredited by scientific research beginning in the 1970s. In 1973, the American Psychiatric Association removed homosexuality from its Diagnostic and Statistical Manual of Mental Disorders, noting that “homosexuality per se implies no impairment in judgment, stability, These policy statements are compiled in Just the Facts About Sexual Orientation and Youth: A Primer for Principals, Educators, and School Personnel, a publication that is available from the Just the Facts Coalition on the American Psychological Association’s website: http://www.apa.org/pi/lgbt/publications/just-the-facts.pdf. 16 Pan American Health Organization, 2012. 17 Herek, 2010; Herek & Garnets, 2007.
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reliability, or general social or vocational capabilities.”18 In 1975, the American Psychological Association endorsed this position and urged psychologists to help educate the public and to dispel the stigma of mental illness associated with homosexuality.19 31. Gay and lesbian individuals are subject to the same stresses of life as their

heterosexual counterparts, including the death of a close relative, loss of a job, or a serious illness. Research consistently demonstrates that high levels of stress are harmful not only to psychological well-being but also to physical health.20 In addition to the life stresses that can affect everyone, members of stigmatized minority groups, including gay men and lesbians as well as ethnic/racial minorities, may experience additional stress caused by prejudice and discrimination. This has been termed “minority stress.”21 This excess stress has been associated with an increased risk of psychological problems, especially those like anxiety and depression that are most closely linked to stress.22 Despite the pervasive social stigma against homosexuality and the resulting unique social stressors lesbians and gay men experience, the vast majority of lesbian and gay individuals cope successfully with these challenges and lead healthy, happy, welladjusted lives. And there is nothing about sexual orientation itself – whether one is heterosexual or homosexual – that makes a person more or less able to contribute to or participate in society. 32. Social relationships can play an important role in buffering individuals from the

stresses of life. Like heterosexuals, lesbians and gay men benefit from having a close intimate relationship, for example, with a spouse. Further, people benefit from the social, emotional, and material support that can be provided by family, friends, and others. Research also documents that the psychological well-being of lesbians and gay men is enhanced by having positive feelings about being gay, having developed a positive sense of gay identity, and being open about their sexual orientation with important other people, such as family members.23 American Psychiatric Association, 1974. For other resolutions by this organization, see http://www.healthyminds.org/More-Info-For/GayLesbianBisexuals.aspx. 19 Conger, 1975. Also, the American Psychological Association has endorsed several resolutions concerning sexual orientation. These can be found at: http://www.apa.org/pi/lgbt/resources/policy/index.aspx. 20 Thoits, 2010. 21 Meyer, 2003, 2007. 22 Herek & Garnets, 2007; Pascoe & Richman, 2009. 23 Herek & Garnets, 2007; Meyer, 2003; Pachankis, 2007; Pascoe & Richman, 2009.
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IV.

Scientific Research Into Same-Sex Couples’ Relationships Establishes That They Closely Resemble Different-Sex Couples’ Relationships 33. Negative stereotypes about same-sex couples are common in America, leading

many people to believe and argue that same-sex relationships are fundamentally different from, and inferior to, heterosexual relationships. But the consensus of the scientific research is that this characterization is inaccurate. 34. Lesbians and gay men are as able to form loving, committed relationships with a

same-sex partner as are heterosexuals in committed relationships with a different-sex partner. Empirical research has repeatedly shown that gay men and lesbians have happy, satisfying relationships.24 Like their heterosexual counterparts, lesbians and gay men form deep emotional bonds and strong commitments to their partners. Research documents striking similarities between same-sex and heterosexual couples on standardized measures of love, relationship satisfaction, and relationship adjustment. The extensive body of research that examines the quality and functioning of same-sex relationships demonstrates that same-sex couples are not inherently different from heterosexual couples. To the contrary, same-sex couples closely resemble heterosexual couples and the processes that affect both types of relationships are remarkably similar.25 35. Lesbians and gay men, like heterosexuals, value committed relationships and a

majority would like to marry. In a national survey,26 74% of lesbians and gay men said that if they could legally marry someone of the same sex, they would like to do so. 36. Scientific research consistently shows that the same factors that contribute to

commitment and stability in different-sex couples apply to same-sex couples. One factor is the quality of a couple's relationship. As noted above, research shows that, on average, same-sex and different-sex relationships are equally satisfying and well-adjusted. Couples with more satisfying relationships are more likely to stay together than other couples, regardless of sexual orientation. A second factor that contributes to commitment and stability within different-sex and same-sex
24 25

Kurdek, 2004, 2005; Peplau & Fingerhut, 2007. American Psychological Association, 2004. 26 Kaiser Family Foundation, 2001.
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couples alike are barriers that make it difficult for a person to leave a relationship. Research demonstrates that, as with their heterosexual counterparts, lesbians and gay men who perceive more barriers to terminating a relationship are more likely to remain together. Third, certain demographic characteristics of different-sex couples are consistently correlated with breakup rates (e.g. their age at marriage, race, level of education, and religious affiliation). It is likely that the same demographic characteristics that predict stability and instability in different-sex couples also apply to same-sex couples. 37. In 2004, based on a review of research on marriage and same-sex relationships, the

American Psychological Association passed a Resolution on Sexual Orientation and Marriage,27 in which it concluded that “many lesbians and gay men have formed durable relationships” and “the factors that predict relationship satisfaction, relationship commitment, and relationship stability are remarkably similar for both same-sex cohabiting couples and heterosexual married couples.” V. Barring Same-Sex Couples from Marriage Causes Them Harm 38. There is widespread consensus among social science researchers that marriage

generally provides many benefits to both spouses. A large body of scientific research comparing heterosexuals who are currently married to those who are not married establishes that marriage fosters psychological well-being, physical health, and longevity.28 Of course, marriages that are unhappy, conflict-ridden, or violent do not provide the same benefits as the average marriage. 39. Studies consistently associate marriage with better health and greater longevity;

marriage also has a moderating effect on individual risk-taking behavior.29 Illustrative data come from a report by the U.S. Center for Disease Contro1.30 Using a large national database, CDC researchers found that regardless of age, sex, race, ethnicity, education, or income, married adults were on average healthier than cohabiting, divorced, widowed, or never married adults. Married American Psychological Association, 2004. E.g., Cherlin, 2009; Johnson, et al., 2000; Kim & McKenry, 2002; Lamb, Lee, & DeMaris, 2003; Nock, 1995; Proulx, et al., 2007; Schoenborn, 2004; Umberson, 1992; Waite, 1995. 29 Hu & Goldman, 1990; Johnson et al., 2000; Waite, 1995; Waldron, Hughes, & Brook, 1996. 30 Schoenborn, 2004. Marital status and health: United States, 1999-2002. Advance Data from Vital and Health Statistics, Number 351, December 15, 2004. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services.
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individuals reported lower rates of smoking, drinking heavily, or being physically inactive (although married men were more likely to be overweight than other men). Married adults also reported lower rates of being limited in their daily activities of living, being in poor health, or suffering from headaches or serious psychological distress. Other research using national data reliably demonstrates that, on average, married individuals live longer than unmarried individuals. 40. Marriage is also associated with enhanced psychological well-being. On average,

married individuals report less anxiety and depression and greater happiness and satisfaction with life than do unmarried individuals.31 41. There are two explanations for the clear differences observed between married and

unmarried individuals.32 One explanation is known as the selection effect: to some extent, individuals with better mental and physical health are more likely to choose to marry and/or better able to attract a partner and maintain a relationship over time. Using a variety of research methods, researchers have demonstrated that the selection effect only partially accounts for the physical and psychological differences found between married and unmarried individuals. These research methods include longitudinal studies of the effects of marriage over time, longitudinal studies of transitions into or out of marriage, and studies that statistically control for factors such as income that are known to be associated with health. For example, one longitudinal study found that individuals who married between the first and second assessment were less depressed at the time of the second assessment than those who remained unpartnered. This suggests that getting married on average led to a reduction in depression.33 42. The second explanation for the positive physical and psychological benefits of

marriage is known as the protection effect.34 There are many ways in which marriage can provide protective benefits that contribute to the health and well-being of spouses. The marriage Kim & McKenry, 2002; Lamb, Lee, & DeMaris, 2003; Proulx, et al., 2007; Waite, 1995. Gove, Hughes, & Style, 1984; Kim & McKenry, 2002; Lamb, Lee, & DeMaris, 2003; Waldron, Hughes, & Brook, 1996. 33 Lamb, Lee, & DeMaris, 2003. 34 Cherlin, 2009; Gove, Hughes, & Style, 1984; Kim & McKenry, 2002; Lamb, Lee, & DeMaris, 2003; Waldron, Hughes, & Brook, 1996.
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relationship is a social union and a legal contract that creates a well-recognized and valued kinship relationship. Marriage binds spouses not only to each other but can also bind individuals to the broader community, which understands, appreciates, and values the significance of the marriage relationship. Marriage often “provides individuals with a sense of obligation to others, which gives life meaning beyond oneself.”35 For many people, marriage has great symbolic significance, establishing that the individual has a new social identity and is part of a valued and respected social institution. 43. In addition, marriage often entails a moral commitment by spouses to support each

other “in sickness and in health.” Spouses often help each other to adopt more healthful lifestyles, cope with the stress and uncertainty of life, and recuperate from illness and injury. 44. The security of marriage often enables spouses to adopt a long-term perspective,

putting off immediate rewards to build a future life together and encouraging mutual sacrifice. This has been referred to as “enforceable trust.”36 45. One way that couples express the symbolic significance of their marriage is

through a wedding ceremony. Although cultures have differing traditions and individual couples may choose to depart from certain customs and traditions, the celebration of a wedding is a ritual that is important to the couple, their respective families, and the larger community. Wedding ceremonies are typically state-sanctioned public rituals that signify not only the joining together of the spouses, but the creation of new extended families and in-laws with shared interests and mutual obligations. The formation of a marriage transforms biological strangers into kin. Wedding ceremonies usually also involve members of the broader community – friends, coworkers, neighbors – who come together to recognize the new status of the couple and their changed position in their community. 46. Marriage is widely regarded as one of the most important rites of passage for

adulthood, and it marks a major transition in a person’s life. For many, marriage signifies entry into full adulthood, with expectations that the individual will act in more mature ways. The sense of being a responsible adult may be one reason why married individuals engage in less risky
35 36

Waite, 1995. Cherlin, 2009.
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behavior than their unmarried peers. The marriage relationship itself is associated with certain duties and responsibilities – for example, that spouses should care for each other and build a life together. 47. When a couple marries, they may bring with them separate networks of family,

friends, and others who can support them in time of need. Marriage often merges these support networks, expanding the circle of valued confidants, help givers, and others who are available to the couple. Marriage typically involves spouses in new sets of social obligations: the new responsibilities of each spouse toward their in-laws are complemented by the obligations of the extended family to support the married couple. 48. Social support is central to the institution of marriage. Compared to unmarried

individuals, married adults tend to receive more social support from other people, especially from their parents, and this support contributes to individual well-being. The public aspect of marriage can increase each spouse’s sense of security that the relationship will be long-lasting. 49. Although these conclusions are derived from studies of heterosexual couples, it is

reasonable to infer that same-sex couples will generally benefit from marriage as do their heterosexual counterparts. This idea is supported by the many well-established similarities in the nature and quality of same-sex and heterosexual couples’ relationships.37 As it does for many different-sex couples, marriage for many same-sex couples would create bonds between the spouses and a social network of in-laws, friends, and others who can provide emotional support and tangible assistance. As with different-sex couples, marriage would bind same-sex couples together in a well-understood and highly valued social union and legal contract. 50. Marriage embodies many cultural values and expectations, often reflected in

marriage vows by which spouses pledge to love and care for each other, to be faithful to each other, and to stay together through good times and bad until separated by death. These cultural expectations provide a framework that individuals can draw upon to understand and build a relationship together. These cultural expectations also provide guidelines that relatives and society can draw on. In this regard, marriage is expected to have benefits for same-sex couples
37

Kurdek, 2004, 2005; Peplau & Fingerhut, 2007.
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that are not offered by domestic partnerships, which are not as well understood, appreciated, or respected by the community as marriage. 51. Recent data of same-sex spouses in Massachusetts offer important insights on the

experience of married lesbian and gay American couples.38 Most lesbians and gay men reported that marriage had improved their social relationships: 62% said their family was more accepting of their partner and 41% said their family was more accepting of their sexual orientation. In addition, 69% felt more accepted in their community. Most respondents said that their parents reacted positively to their marriage (82%) as did their siblings (91%). Lesbians and gay men were also asked about ways that marriage had improved their relationship. A majority (72%) agreed that they felt more committed to their partner. Many reported that they now worry less about legal problems (48%) and nearly a third said that one of the spouses receives health benefits from an employer as a result of marriage. Other benefits mentioned included feeling more accepted by society (38%) and feeling more financially stable (14%). One in four of the samesex couples surveyed were raising children, and 93% of these respondents agreed that their children were happier or better off as a result of their marriage; 2% disagreed, and 4% were unsure. 52. Leading organizations of mental health professionals recognize the benefits of

marriage for same-sex couples and the harm created by denying access to civil marriage to samesex couples. As one example, in 2005 the American Psychiatric Association, the leading organization representing physicians in the field of mental health, adopted a policy statement on this issue. Their resolution stated: “In the interest of maintaining and promoting mental health, the American Psychiatric Association supports the legal recognition of same-sex civil marriage with all rights, benefits, and responsibilities conferred by civil marriage, and opposes restrictions to those same rights, benefits, and responsibilities.”39 Further, in its Resolution on Sexual Orientation and Marriage,40 the American Psychological Association resolved “[t]hat APA believes that it is unfair and discriminatory to deny same-sex couples legal access to civil
38 39 40

Ramos, Goldberg & Badgett, 2009. American Psychiatric Association, 2005. American Psychological Association, 2004.
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marriage and all its attendant benefits, rights, and privileges.” VI. Barring Same-Sex Couples from Marriage Reflects and Perpetuates Stigma Against Lesbians, Gay Men, and Same-Sex Couples 53. Lesbian, gay, and bisexual individuals are the targets of prejudice and

discrimination in the United States.41 National opinion surveys document that many Americans have negative attitudes toward this group of people and toward marriage for same-sex couples. Research has also documented that heterosexuals often view same-sex couples more negatively than heterosexual couples.42 Gay, lesbian, and bisexual individuals experience discrimination at work and in their communities,43 and most states provide no legal protection against discrimination based on sexual orientation. Significant numbers of gay, lesbian, and bisexual individuals are targets of harassment and violence.44 These facts demonstrate that gay, lesbian, and bisexual individuals experience pervasive social stigma. 54. Social stigma refers to severe social disapproval of a class of people perceived as

being different, deviant, or in violation of cultural norms.45 In American society today, gay men, lesbians, and bisexuals continue to be a highly stigmatized minority group. Many heterosexuals, who are the dominant group in society, perceive gay men, lesbians, bisexuals, and same-sex couples, as fundamentally different, hold negative stereotypes about their characteristics, and view discrimination against them as acceptable. Social stigma is reflected both in the acts of individuals and in the institutions of society, including its laws, that legitimate and perpetuate the second-class status of gay men, lesbians, bisexuals, and same-sex couples. 55. By prohibiting same-sex couples from marrying, Nevada law both reflects and

perpetuates stigma against lesbians, gay men, and same-sex couples. Nevada law devalues and delegitimizes the relationships of legally married same-sex couples. By giving heterosexuals exclusive access to the benefits associated with the institution of marriage, Nevada law perpetuates power differentials between heterosexual citizens and non-heterosexual citizens.
41 42 43 44 45

Herek, 2009a. Testa, Kinder & Ironson, 1987. Herek, 2009b. Herek, 2009b. Herek, 2009a.
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Nevada law signals that in the eyes of the state, the committed relationships of same-sex couples are inferior to different-sex relationships and that partners in same-sex relationships are less deserving of social recognition and government protection. The stigma perpetuated by Nevada law affects not only individuals in committed relationships with a person of the same sex, but all gay, lesbian, and bisexual individuals as a group. VII. There Is No Evidence That Heterosexual Relationships Would Be Harmed If Same-Sex Couples Were Permitted To Marry 56. For many decades, social scientists have studied and analyzed the factors that

contribute to rates of divorce.46 There is a scientific consensus about the key factors that may be responsible. First, increasing employment opportunities for women have led to a dramatic increase in the percentage of married women in the workforce. Paid employment gives wives greater economic independence from their husbands which in turn makes it more feasible to end an unhappy marriage. Second, since the 1970s, economic opportunities for men without college education have diminished, adding financial stress to the lives of some married couples. Third, there have also been important changes in public attitudes. Public acceptance of divorce has increased, as has the social acceptability of unmarried cohabitation. Some scholars also suggest that a growing emphasis on individualism and personal fulfillment has eroded an earlier emphasis on the importance of obligation and commitment in marriage. Fourth, state “no-fault” divorce laws have made it easier for spouses to end their relationships. 57. In addition, research has identified several demographic characteristics that are

associated with an increased likelihood of divorce.47 First, age at marriage matters: people who marry as teenagers are more likely to divorce than those who are in their 20s or older. Second, unemployment and low incomes are associated with greater rates of marital dissolution. Third, so too is race or ethnicity. African Americans have significantly higher rates of marital separation, Asian Americans have lower rates, and other groups fall in between. Fourth, individuals whose parents divorced while they were growing up are at greater risk of divorce. Although a
46 47

Cherlin, 2009; Coontz, 2007; Bramlett & Mosher, 2002; Teachman, 2002. Amato, 1996; Bramlett & Mosher, 2002; Heaton, 2002; Lehrer & Chiswick, 1993; Raley & Sweeney, 2007.
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correlation exists, there is no scientific evidence that these demographic characteristics in and of themselves cause relationships to end. When spouses are similar on such characteristics as religion and age, the risk of divorce is lower. 58. None of these factors uniquely correlates with same-sex couples or with allowing

them to marry. Allowing same-sex couples to marry would not alter state marriage laws, economic opportunities for married heterosexual women or men, public attitudes toward divorce or cohabitation, or personal values of individualism or commitment. Nor would it affect the age at which heterosexuals decide to marry, their personal history of parental divorce, their choice of a similar or dissimilar partner, or their race or ethnicity. Indeed, the fact that lesbians and gay men, a class of citizens formerly denied legal marriage, are seeking to obtain marriage rights could be seen as beneficial, because it broadens the scope of support for the value of marriage as a central social institution in American society. 59. Allowing same-sex couples to marry would not affect the quality, stability, or

longevity of different-sex relationships. The quality of a heterosexual couple’s marriage depends on such factors as the spouses’ personalities, their communication styles and ways of handling conflict with each other, the stress a couple experiences, and the social support and resources available to the couple. None of these factors is altered if a same-sex couple living down the block gets married. In addition, the stability of marriages between different-sex couples depends on barriers to divorce, including investments the spouses have made in each other and their relationship, their moral and personal convictions about marriage, the options they see available outside of marriage, and the many legal, financial, and social obligations that come with a marriage license. Finally, the longevity of a marriage is also affected by the spouses’ demographic characteristics — their age at marriage, race, level of education, and religious affiliation. These factors are not influenced by the marital status of other couples. In short, there is no scientific basis for the proposition that allowing same-sex couples to marry would affect the underlying processes that foster stability in different-sex marriages. 60. In response to an effort to ban marriage for same-sex couples, the Executive Board

of the American Anthropological Association, the world’s largest organization of anthropologists,

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issued the following statement: The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies.48 61. Further, recent data from Massachusetts, where marriage for same-sex couples

became available in May 2004, do not support the contention that the marriages of same-sex couples affects marriage for different-sex couples. An examination of statistical data from 2000 to 2010 (the most recent data available) indicates that marriage of same-sex couples has not led to a decline in marriage nor to an increase in divorce in Massachusetts.49 As shown in the table below, there are minor fluctuations in rates of marriage and divorce from year to year in Massachusetts; this is typical across all states in the U.S. Massachusetts Marriage and Divorce Rates Per 1,000 Residents by Year Before 2004 2000 Marriage 5.8 Divorce 62. 2.5 2001 6.2 2.4 2002 5.9 2.5 2003 5.6 2.5 After 2004 2004 6.5 2.2 2005 6.2 2.2 2006 5.9 2.3 2007 5.9 2.3 2008 5.7 2.0 2009 5.6 2.2 2010 5.6 2.5

In the four years prior to when same-sex couples were permitted to marry (2000-

2003), the average marriage rate was 5.9 marriages per 1,000 total population in the state. In the seven years after same-sex couples were permitted to marry (2004-2010), the average marriage rate was 5.9. Divorce rates from Massachusetts are also informative. In the four years prior to when same-sex couples were permitted to marry (2000-2003), the average divorce rate was 2.5. In the seven years after same-sex couples were permitted to marry (2004-2010), the divorce rate has been lower, averaging 2.2.
48 49

American Anthropological Association, 2004. Marriage rates by State: 1990, 1995, and 1999-2010, Division of Vital Statistics, National Center for Health Statistics, CDC. Available at: http://www.cdc.gov/nchs/data/nvss/marriage_rates_90_95_99-10.pdf. Divorce rates by State: 1990, 1995, and 1999-2010, Division of Vital Statistics, National Center for Health Statistics, CDC. Available at: http://www.cdc.gov/nchs/data/nvss/divorce_rates_90_95_99-10.pdf.
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Exhibit A

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August, 2012

Letitia Anne Peplau
Distinguished Research Professor Department of Psychology University of California, Los Angeles, CA 90095-1563 Telephone: (310) 825-1187 FAX: (310) 206-5895 Email: lapeplau@ucla.edu Education B.A. in Honors Psychology, Brown University, 1968 (Summa cum laude) Ph.D. in Social Psychology, Harvard University, 1973 Academic Positions at UCLA 1973-2010 2010 2011 1983-1988 1985-1986 1988-1990 1994-1995 1999-2011 2005-2011 2004-present Professor of Psychology Distinguished Professor of Psychology Distinguished Professor of Psychology, emeritus Director, Graduate Program in Social Psychology Associate Director, Center for the Study of Women Acting Co-Director, Center for the Study of Women Director, Graduate Program in Social Psychology Faculty Affiliate, UCLA Center for the Study of Women Director, NSF IGERT Interdisciplinary Relationship Science Program, UCLA Vice Chair for Graduate Studies, UCLA Psychology Department

Honors and Professional Societies Danforth Graduate Fellowship, 1968-1973 National Science Foundation Predoctoral Fellowship, 1968-1970 Phi Beta Kappa Sigma Xi American Psychological Association (elected fellow in Divisions 8, 9, 35 and 44) Association for Psychological Science (fellow) American Sociological Association Society for Experimental Social Psychology Society for the Psychological Study of Social Issues International Academy of Sex Research Society for the Scientific Study of Sexuality Outstanding Achievement Award, Committee on Lesbian and Gay Concerns, APA, 1986 President, International Society for the Study of Personal Relationships, 1994-1996 Distinguished Scientific Achievement Award, Society for the Scientific Study of Sexuality, 1997 Monette/Horwitz Trust Award for Research on Gay, Lesbian, and Bisexual Studies, 2000. Outstanding Faculty Award, UCLA Lesbian, Gay, Bisexual and Transgender Campus Center, June 2001. Distinguished Publication Award 2001, Association for Women in Psychology Distinguished Scientific Contribution Award, Division 44, APA, 2002 Invited Master Lecture at the annual meeting of the American Psychological Association, 2002.

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Elected to membership in the International Academy of Sex Research, 2003 Distinguished Teaching Award, UCLA Psychology Department, 2003 Award for Distinguished Faculty Service, Women’s Studies Program, UCLA, 2005 Mentoring Award, International Association for Relationship Research, 2006 Distinguished “Elder” Award, APA National Multicultural Summit and Conference, 2007 Heritage Award for Research, APA Division 35 (Society for the Psychology of Women), 2007 Awarded the Evelyn Hooker Award for Distinguished Contribution by an Ally, APA Division 44 (Society for the Psychological Study of Lesbian, Gay and Bisexual Issues), 2008 Editorial Activities Member, Editorial Board, Journal of Social Issues, 1974-1977 Member, Editorial Board, Social Psychology Quarterly, 1977-1979 Consulting Editor, Psychology of Women Quarterly, 1978-1980 Member, Editorial Board, Journal of Homosexuality, 1980-1985 Member, Editorial Board, SIGNS: A Journal of Women in Culture and Society, 1981-1989 Member, Advisory Board, Journal of Personal and Social Relationships, 1985-1987 Consulting Editor, Journal of Personality and Social Psychology, 1985-1989 Member, Editorial Board, Journal of Psychology and Human Sexuality, 1987-1989 Member, Advisory Board, Advances in Personal Relationships, l986-1992 Member, Editorial Board, Journal of Social Issues, 1992-1995 Member, Advisory Board, Columbia University Press Series on Lesbian and Gay Studies, 1993-2000 Associate Editor, SIGNS: A Journal of Women in Culture and Society, 2000-2005 Member, Editorial Board, Contemporary Perspectives on Lesbian, Gay, and Bisexual Psychology, APA Books, 2001-2009 Member, Editorial Board, Sexuality Research and Social Policy: Journal of NSRC, 2003-2011 Member, International Advisory Board, Ibadan Journal of Social Sciences, 2004-2010 Selected Recent Professional Activities Member, Editorial Board, Psychology and Sexuality Member, Scientific Review Panel for the Placek Research Award Program, American Psychological Foundation, 1995-2000 Member, Committee on Women in Psychology Network (representative from Division 8), 1998-present Member, Working Group on Same-Sex Families, American Psychological Association, April 2004. Chair, Fellows Selection Committee, Society for the Psychological Study of Social Issues (Div. 9 of APA), 2004-2005. Member, Fellows Selection Committee, Society for the Psychological Study of Lesbian, Gay and Bisexual Issues (Div. 44 of APA), 2006-2008. Books and Edited Volumes Taylor, S. E., Peplau, L. A., & Sears, D. O. (2006). Social psychology, 12th Ed. Upper Saddle River, NJ: Prentice-Hall.

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Taylor, S. E., Peplau, L. A., & Sears, D. O. (2003). Social psychology, 11th Ed. Upper Saddle River, NJ: Prentice-Hall. Published into Russian in 2004. Peplau, L. A., & Garnets, L. D. (Eds.) (2000). Women's sexualities: Perspectives on sexual orientation and gender. Journal of Social Issues, 56 (whole number 2). This volume was selected for the 2001 Distinguished Publication Award of the Association for Women in Psychology. Taylor, S. E., Peplau, L. A., & Sears, D. O. (2000). Social psychology, 10th Ed. Upper Saddle River, NJ: Prentice-Hall. Peplau, L. A., DeBro, S. C., Veniegas, R. C., & Taylor, P. (Eds.) (1999). Gender, culture and ethnicity. Mountain View, CA: Mayfield Publishing. Taylor, S. E., Peplau, L. A., & Sears, D. O. (1997). Social psychology, 9th Ed. Upper Saddle R iver, NJ: Prentice-Hall. Peplau, L. A. & Taylor, S. E. (Eds.) (1997). Sociocultural perspectives in social psychology. Upper Saddle River, NJ: Prentice-Hall. Taylor, S. E., Peplau, L. A., & Sears, D. O. (1994). Social psychology, 8th Ed. Englewood Cliffs, NJ: Prentice-Hall. Rubin, Z., Peplau, L. A., & Salovey, P. (1993). Psychology, 1st Ed. Boston, MA: Houghton-Mifflin. Sears, D. O., Peplau, L. A., & Taylor, S. E. (1991). Social psychology, 7th Ed. Englewood Cliffs, NJ: Prentice-Hall. Peplau, L. A., Sears, D. O., Taylor, S. E. , & Freedman, J. L. (Eds.) (1988). Readings in social psychology: Classic and contemporary contributions. Englewood Cliffs, NJ: Prentice-Hall. Sears, D. O., Peplau, L. A., Freedman, J. L., & Taylor, S. E. (1988). Social psychology, 6th Ed. Englewood Cliffs, NJ: Prentice-Hall. Sears, D. O., Freedman, J. L., & Peplau, L. A. (1985). Social psychology, 5th Ed. Englewood Cliffs, NJ: Prentice-Hall. Peplau, L.A., & Goldston, S. E. (Eds.) (1984). Preventing the harmful consequences of severe and persistent loneliness. DHHS Publication No. (ADM) 84-1312. Washington, DC: U.S. Government Printing Office (Monograph). Kelley, H. H., Berscheid, E., Christensen, A., Harvey, J., Huston, T., Levinger, G., McClintock, E., Peplau, L. A., & Peterson, D. (1983). Close relationships. New York: Freeman. Reprinted (2002) by Percheron Press. Peplau, L. A., & Jones, R. (Issue Editors) (1982). Homosexual couples. Journal of Homosexuality, 8 (whole number 2).

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Peplau, L. A., & Perlman, D. (Eds.) (1982). Loneliness: A sourcebook of current theory, research and therapy. New York: Wiley-Interscience. Published in Japanese translation in 1988 and in Russian in 1989. Peplau, L. A., & Hammen, C. L. (Eds.) (1977). Sexual behavior: Social psychological issues. Journal of Social Issues, 33, (whole number 2). Articles and Book Chapters Ghavami, N., & Peplau, L. A. (revise and resubmit). An intersectional analysis of gender and ethnic stereotypes: Testing three hypotheses. Psychology of Women Quarterly. Lavner, J., Waterman, J., & Peplau, L. A. (under review). Parent adjustment over time in gay, lesbian, and heterosexual parent families adopting from foster care. Journal of Orthopsychiatry. Lavner, J., Waterman, J., & Peplau, L. A. (accepted for publication). Can gay and lesbian parents promote healthy development in high-risk children adopted from foster care? Journal of Orthopsychiatry. Fingerhut, A.W. & Peplau, L. A. (forthcoming). Same-sex romantic relationships. In C. J. Patterson & A. R. D’Augelli (Eds.), Handbook of psychology and sexual orientation. New York: Oxford University Press. Preciado, M. A. & Peplau, L. A. (2011). Self-perception of same-sex sexuality among heterosexual women: Association with personal need for structure. Self and Identity, doi:10.1080/15298868.2010.51572. Ghavami, N., Fingerhut, A. W., Peplau, L. A., Grant, S. K., & Wittig, M. A. (2011). Testing a model of minority identity achievement, identity affirmation and psychological well-being among ethnic minority and sexual minority individuals. Cultural Diversity and Ethnic Minority Psychology, 17, 79-88. Fingerhut, A. W., Peplau, L. A., & Gable, S. L. (2010). Identity, minority stress and psychological well-being among gay men and lesbians. Psychology and Sexuality, 1(2), 101-114. Beals, K. P., Peplau, L. A., & Gable, S. L. (2009). Stigma management and well-being: The role of social support, cognitive processing, and suppression. Personality and Social Psychology Bulletin, 35, 867-879. Conley, T. D., & Peplau, L. A. (2009). Gender and perceptions of romantic partners’ sexual risk. Journal of Sexual Medicine, 7, 794-802. Conley, T. D., Roesch, S. C., Peplau, L. A., & Gold, M. S. (2009). Testing the positive illusions model of relationship satisfaction among gay and lesbian couples. Journal of Applied Social Psychology, 39, 1417-1431. Peplau, L. A., Frederick, D. A., Yee, C., Maisel, N., Lever, J. & Ghavami, N. (2009). Body image satisfaction among heterosexual, gay and lesbian adults. Archives of Sexual Behavior, 38(5), 713725.

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Peplau, L. A., & Ghavami, N. (2009). The relationships of lesbians, gay men and bisexuals. In H. Reis & S. Sprecher (Eds.). The encyclopedia of human relationships. Thousand Oaks, CA: Sage Publications. Frederick, D., Lever, J., & Peplau, L. A. (2008). The Barbie mystique: Satisfaction with breast size and shape across the lifespan. International Journal of Sexual Health, 20, 200-211. Peplau, L. A. & Huppin, M. (2008). Masculinity, femininity and the development of sexual orientation in women. Journal of Gay and Lesbian Mental Health, 12(1/2), 147-167. Also published as a chapter in R. Mathy & J. Drescher (Ed.) Childhood gender nonconformity and the development of adult homosexuality (pp 147-167). Binghamton, NY: Haworth Press. Peplau, L. A., & Fingerhut, A. W. (2007). The close relationships of lesbians and gay men. Annual Review of Psychology, 58. 10.1-10.20. Frederick, D. A., Buchanan, G. M., Sadeghi-Azar, L., Peplau, L. A., Haselton, M. G., Berezovskaya, A., & Lipinski, R. E. (2007). Desiring the muscular ideal: Men’s body satisfaction in the United States, Ukraine, and Ghana. Psychology of Men and Masculinity, 8, 103-117. Frederick, D., Lever, J., & Peplau, L. A. (2007). Interest in cosmetic surgery and body image: Views of men and women across the life span. Plastic and Reconstructive Surgery, 120, 14071415. Fingerhut, A. W., & Peplau, L. A. (2006). The impact of social roles on stereotypes of gay men. Sex Roles, 55, 273-278. Garnets, L., & Peplau, L. A. (2006). Sexuality in the lives of adult lesbian and bisexual women. In D. C. Kimmel, T. Rose, & S. David (Eds.) Research and clinical perspectives on lesbian, gay, bisexual, and transgender aging, pp. 70-90. New York: Columbia University Press. Beals, K. P., & Peplau, L. A. (2006). Disclosure patterns within the social networks of gay men and lesbians. Journal of Homosexuality, 51(2), 101-120. Lever, J., Frederick, D., & Peplau, L. A. (2006). Does size matter? Men’s and women’s views on penis size across the life span. Psychology of Men and Masculinity, 7(3), 129-143. Frederick, D. A., Peplau, L. A., & Lever, J. (2006). The swimsuit issue: Correlates of body image in a sample of 52, 677 heterosexual adults. Body Image: An International Journal of Research, 3, 413-419. Impett, E. A., & Peplau, L. A. (2006). ”His” and “her” relationships: A review of the empirical evidence. In A. Vangelisti & D. Perlman (Eds.), The Cambridge handbook of personal relationships (pp. 884-904). New York: Cambridge University Press. Elsesser, K., & Peplau, L. A. (2006). The glass partition: Obstacles to cross-sex friendships at work. Human Relations, 59(8), 1077-1100. Impett, E. A., Gable, S., & Peplau, L. A. (2005). Giving up and giving in: The costs and benefits of daily sacrifice in intimate relationships. Journal of Personality and Social Psychology, 89, 327-344.

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Impett, E. A., Peplau, L. A., & Gable, S. (2005). Approach and avoidance sexual motives: Implications for personal and interpersonal well-being. Personal Relationships, 12, 465-482. This paper received “Distinguished Publication” award from the International Association for Relationships Research, July 20, 2008. Fingerhut, A. W., Peplau, L. A., & Ghavami, N. (2005). A dual-identity framework for understanding lesbian experience. Psychology of Women Quarterly, 29, 129-139. Beals, K. P., & Peplau, L. A. (2005) Identity support, identity devaluation and well-being among lesbians. Psychology of Women Quarterly, 29, 140-145. Peplau, L. A., & Fingerhut, A. (2004). The paradox of the lesbian worker. Journal of Social Issues, 60(4), 719-735. Peplau, L. A., Fingerhut, A., & Beals, K. P. (2004). Sexuality in the relationships of lesbians and gay men. In J. Harvey, A. Wenzel, & S. Sprecher (Eds.), Handbook of sexuality in close relationships (pp. 350-369). Mahwah, NJ: Erlbaum. Peplau, L. A. & Beals, K. P. (2004). The family lives of lesbians and gay men. In A. Vangelisti (Ed.), Handbook of family communication (pp. 233-248). Mahwah, NJ: Erlbaum. Peplau, L. A. (2003). Human sexuality: How do men and women differ? Current Directions in Psychological Science, 12(2), 37-40. Reprinted in J. B. Ruscher & E. Y. Hammer (Eds.) (2004). Current directions in social Psychology (pp. 76-82). Upper Saddle River, NJ: Prentice Hall. Impett, E. A., & Peplau, L. A. (2003). Sexual compliance: Gender, motivational, and relationship perspectives. Journal of Sex Research, 40, 87-100. This paper received the 2004 Student Research Award from the Society for Sex Therapy and Research. Impett, E. A., & Peplau, L. A. (2002). Why some women consent to unwanted sex with a dating partner: Insights from attachment theory. Psychology of Women Quarterly, 26, 360-370. Beals, K., Impett, E., & Peplau, L. A. (2002). Lesbians in love: Why some relationships endure and others end. Journal of Lesbian Studies, 6(1), 53-64. Garnets, L. D., & Peplau, L. A. (2002). A new paradigm for women’s sexual orientation: Implications for therapy. Women and Therapy, 24, 111-122. Reprinted in E. Kaschak & L. Tiefer (Eds.) (2002). A new view of women’s sexual problems (pp. 111-122.) Binghamton, NY: Haworth Press. Impett, E. A., Beals, K. P., & Peplau, L. A. (2001-02). Testing the investment model of relationship commitment and stability in a longitudinal study of married couples. Current Psychology, 20(4), 312-326. Reprinted in N. J. Pallone (Ed.) (2003), Love, romance, and sexual interaction: Research perspectives from Current Psychology (pp. 163-181). New Brunswick, NJ: Transaction Press.

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Peplau, L. A., & Beals, K. P. (2001). Lesbians, gay men and bisexuals in relationships. In J. Worell (Ed.), Encyclopedia of women and gender (pp. 657-666). San Diego, CA: Academic Press. Beals, K. P., & Peplau, L. A. (2001). Social involvement, disclosure of sexual orientation, and the quality of lesbian relationships. Psychology of Women Quarterly. 25, 10-19. Peplau, L. A. (2001). Rethinking women’s sexual orientation: An interdisciplinary, relationshipfocused approach. Personal Relationships, 8, 1-19. Peplau, L. A., & Garnets, L. D. (2000). A new paradigm for understanding women’s sexuality and sexual orientation. Journal of Social Issues, 56(2), 329-350. Garnets, L. D., & Peplau, L. A. (2000). Understanding women’s sexualities and sexual orientations: An introduction. Journal of Social Issues, 56(2), 181-192. Peplau, L. A., & Spalding, L. R. (2000). The close relationships of lesbians, gay men and bisexuals. In C. Hendrick & S. S. Hendrick (Eds.), Close relationships: A sourcebook (pp. 111124). Thousand Oaks, CA: Sage Publications. Veniegas, R. C., Taylor, P. L., & Peplau, L. A. (1999). A guide to resources about gender, culture and ethnicity. In L. A. Peplau, S. C. DeBro, R. C. Veniegas, & P. Taylor (Eds.) Gender, culture and ethnicity (pp 1-13). Mountain View, CA: Mayfield Publishing. Peplau, L. A., Veniegas, R. C., Taylor, P. L., & DeBro, S. C. (1999). Sociocultural perspectives on the lives of women and men. In L. A. Peplau, S. C. DeBro, R. C. Veniegas, & P. Taylor (Eds.) Gender, culture and ethnicity (pp 23-37). Mountain View, CA: Mayfield Publishing. Peplau, L. A., Spalding, L. R., Conley, T. D., & Veniegas, R. C. (1999). The development of sexual orientation in women. Annual Review of Sex Research, Vol 10, 70-99. Vincent, P. C., Peplau, L. A., & Hill, C. T. (1998). A longitudinal application of the theory of reasoned action to women's career behavior. Journal of Applied Social Psychology, 28, 761-778. Hill, C. T., & Peplau, L. A. (1998). Premarital predictors of relationship outcomes: A 15-year followup of the Boston Couples Study. In T. N. Bradbury (Ed.), The developmental course of marital dysfunction (pp. 237-278). New York: Cambridge University Press. Peplau, L. A., Garnets, L.D., Spalding, L. R., Conley, T. D., & Veniegas, R. C. (1998). A critique of Bem’s “Exotic Becomes Erotic” theory of sexual orientation. Psychological Review, 105(2), 387-394. Perlman, D., & Peplau, L. A. (1998). Loneliness. In H. S. Friedman (Ed.) Encyclopedia of mental health, Vol 2 (pp. 571-581). San Diego, CA: Academic Press. Spalding, L. R., & Peplau, L. A. (1997). The unfaithful lover: Heterosexuals' stereotypes of bisexuals and their relationships. Psychology of Women Quarterly, 21, 611-625. Veniegas, R. C., & Peplau, L. A. (1997). Power and the quality of same-sex friendships. Psychology of Women Quarterly, 21(2), 279-297.

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This article was awarded the Graduate Student Research Prize by APA Division 35 and the Association for Women in Psychology in 1997. Veniegas, R. C., & Peplau, L. A. (1997). A guide to sociocultural resources in social psychology. In L. A. Peplau & S. E. Taylor (Eds.), Sociocultural perspectives in social psychology (pp. xivxx). Upper Saddle River, NJ: Prentice Hall. Peplau, L. A., Cochran, S. D., & Mays, V. M. (1997). A national survey of the intimate relationships of African-American lesbians and gay men: A look at commitment, satisfaction, sexual behavior and HIV disease. In B. Greene (Ed.) Ethnic and cultural diversity among lesbians and gay men (pp 11-38). Newbury Park: Sage Publications. Bui, K. T., Peplau, L. A., & Hill, C. T. (1996). Testing the Rusbult model of relationship commitment and stability in a 15-year study of heterosexual couples. Personality and Social Psychology Bulletin, 22, 1244-1257. Peplau, L. A., Veniegas, R. C., & Campbell, S. M. (1996). Gay and lesbian relationships. In R. C. Savin-Williams & K. M. Cohen (Eds.), The lives of lesbians, gays, and bisexuals: Children to adults (pp. 250-273). New York: Harcourt Brace. Wayment, H. A., & Peplau, L. A. (1995). Social support and well-being among lesbian and heterosexual women: A structural modeling approach. Personality and Social Psychology Bulletin, 21(11), 1189-1199. Peplau, L. A. (1994). Men and women in love. In D. L. Sollie & L. S. Leslie (Eds.), Gender, families, and close relationships: Feminist research journeys (pp. 19-49). Thousand Oaks, CA: Sage Publications. De Bro, S. C., Campbell, S. M., & Peplau, L. A. (1994). Influencing a partner to use a condom: A college student perspective. Psychology of Women Quarterly, 18, 165-182. Peplau, L. A., Hill, C. T., & Rubin, Z. (1993). Sex-role attitudes in dating and marriage: A 15year followup of the Boston Couples Study. Journal of Social Issues, 40(3), 31-52. Campbell, S. M., Peplau, L. A., & De Bro, S. C. (1992). Women, men, and condoms: Attitudes and experiences of heterosexual college students. Psychology of Women Quarterly, 16(3), 273288. Garnets, L., Hancock, K. A., Cochran, S. D., Goodchilds, J., & Peplau, L. A. (1991). Issues in psychotherapy with lesbians and gay men: A survey of psychologists. American Psychologist, 46(2), 964-972. Reprinted in D. R. Atkinson & G. Hackett (Eds.) (1998). Counseling diverse populations. New York: McGraw-Hill. Campbell, S. M., Dunkel-Schetter, C. A., & Peplau, L. A. (1991). Perceived control and adjustment to infertility among women undergoing in vitro fertilization. In A. L. Stanton & C. A. Dunkel-Schetter (Eds.), Psychological adjustment to infertility (pp. 133-156). New York: Plenum. Cochran, S. D., & Peplau, L. A. (1991). Sexual risk reduction behaviors among young heterosexual adults. Social Science and Medicine, 33(1), 25-36.

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Peplau, L. A. (1991). Lesbian and gay relationships. In J. C. Gonsiorek & J. D. Weinrich (Eds.), Homosexuality: Research findings for public policy (pp. 177-196). Newbury Park, CA: Sage Publications. Reprinted in L. D. Garnets & D. C. Kimmel (Eds.) (1993). Psychological perspectives on lesbian and gay male experiences (pp. 395-419). New York: Columbia University Press. Peplau, L. A., & Cochran, S. D. (1990). A relationship perspective on homosexuality. In D. P. McWhirter, S. A. Sanders, & J. M. Reinisch (Eds.), Homosexuality/heterosexuality: Concepts of sexual orientation (pp. 321-349). New York: Oxford University Press. Peplau, L. A., & Conrad, E. (1989). Beyond nonsexist research: The perils of feminist methods in psychology. Psychology of Women Quarterly, 13, 381-402. Peplau, L. A., & Campbell, S. M. (1989). Power in dating and marriage. In J. Freeman (Ed.), Women: A feminist perspective, 4th Ed. (pp. 121-137). Palo Alto, CA: Mayfield Publishing. Reprinted in S. J. Ferguson (Ed.), (2001). Shifting the center: Understanding contemporary families, 2nd Ed. Mountain View, CA: Mayfield, pp. 142-152. Peplau, L. A. (1988). Loneliness: New directions in research. Participate in the challenge of mental health and psychiatric nursing in 1988 (pp. 127-142). [Proceedings of the 3rd National Conference on Psychiatric Nursing, Montreal, Quebec, Canada.] Peplau, L. A. (1988). Reading research reports in social psychology. In L. A. Peplau, D. O. Sears, S. E. Taylor, & J. L. Freedman (Eds.), Readings in social psychology: Classic and contemporary contributions, 2nd Ed. (pp.1-5). Englewood Cliffs, NJ: Prentice-Hall. Peplau, L. A. (1987). Loneliness and the college student. In I. Z. Rubin & E. McNeil. The psychology of being human, 4th Ed. (pp. 475-479). New York: Harper & Row. Cochran, S. D., & Peplau, L. A. (1985). Value orientations in heterosexual relationships. Psychology of Women Quarterly, 9, 477-488. Blasband, D., & Peplau, L. A. (1985). Sexual exclusivity versus openness in gay male couples. Archives of Sexual Behavior, 14(5), 395-412. Peplau, L. A., & Gordon, S. L. (1985). Women and men in love: Gender differences in close heterosexual relationships. In V. E. O'Leary, R. K. Unger, & B. S. Wallston Eds.), Women, gender and social psychology (pp. 257-291). Hillsdale, NJ: Lawrence Erlbaum. Reprinted in T. Roberts (Ed.) (1997). The Lanahan readings in the psychology of women (pp. 246-268). Baltimore, MD: Lanahan Publishers. Peplau, L. A. (1985). Loneliness research: Basic concepts and findings. In I. G. Sarason & B. R. Sarason (Eds.), Social support: Theory, research and application (pp. 270-286). Boston: Martinus Nijhof. Peplau, L. A. (1985). Loneliness. In A. Kuper & J. Kuper (Eds.), The social science encyclopedia (p. 474). Boston: Routledge and Kegan Paul.

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Perlman, D., & Peplau, L. A. (1984). Loneliness research: A survey of empirical findings. In L. A. Peplau & S. E. Goldston (Eds.), Preventing the harmful consequences of severe and persistent loneliness (pp. 13-46). DHHS Publication No. (ADM) 84-1312. Washington, DC: U.S. Government Printing Office. Caldwell, M. A., & Peplau, L. A. (1984). The balance of power in lesbian relationships. Sex Roles, 10, 587-600. Reprinted in W. R. Dynes & S. Donaldson (Eds.) (1992), Studies in homosexuality, Vol VII: Lesbianism (pp. 27-39). New York: Garland Publishing. Hill, C. T., Peplau, L. A., & Rubin, Z.(1983). Contraceptives use by college dating couples. Population and Environment: Behavioral and Social Issues, 6(1), 60-69. Peplau, L. A. (1983). Roles and gender. In H. H. Kelley, et al., Close relationships (pp. 220-264). New York: Freeman. Kelley, H. H., Berscheid, E., Christensen, A., Harvey, J., Huston, T., Levinger, G., McClintock, E., Peplau, L. A., & Peterson, D. (1983). Analyzing close relationships. In H. H. Kelley, et al., Close relationships (pp. 20-64). New York: Freeman. Berscheid, E., & Peplau, L. A. (1983). The emerging science of relationships. In H. H. Kelley, et al., Close relationships (pp. 1-19). New York: Freeman. Peplau, L. A., & Gordon, S. L. (1983). The intimate relationships of lesbians and gay men. In E. R. Allgeier & N. B. McCormick (Eds.), The changing boundaries: Gender roles and sexual behavior (pp. 226-244). Palo Alto, CA: Mayfield. Reprinted in J. N. Edwards & D. H. Demo (Eds.) (1991). Marriage and family in transition (pp 479-496.) Boston: Allyn and Bacon. Rook, K. S., & Peplau, L. A. (1982). Perspectives on helping the lonely. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 351-378). New York: Wiley. Perlman, D., & Peplau, L. A. (1982). Theoretical approaches to loneliness. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 123-134). New York: Wiley. Peplau, L. A., & Perlman, D. (1982). Perspectives on loneliness. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 1-18). New York: Wiley. Peplau, L. A., Padesky, C., & Hamilton, M. (1982). Satisfaction in lesbian relationships. Journal of Homosexuality, 8(2), 23-35. Peplau, L. A., Miceli, M., & Morasch, B. (1982). Loneliness and self evaluation. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 135-151). New York: Wiley. Peplau, L. A., Bikson, T. K., Rook, K. S., & Goodchilds, J. D. (1982). Being old and living alone. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 327-347). New York: Wiley. Peplau, L. A., & Amaro, H. (1982). Understanding lesbian relationships. In W. Paul & J. D. Weinrich (Eds.), Homosexuality: Social, psychological and biological issues (pp. 233-248). Beverly Hills, CA: Sage.

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Reprinted in T. Roberts (Ed.) (1997). The Lanahan readings in the psychology of women (pp. 269-280). Baltimore, MD: Lanahan Publishers. Peplau, L. A. (1982). Research on homosexual couples: An overview. Journal of Homosexuality, 8(2), 3-8. Reprinted in J. P. DeCecco (Ed.) (1988). Gay relationships (pp. 33-40). New York: Harrington Park Press. Michela, J. L., Peplau, L. A., & Weeks, D. G. (1982). Perceived dimensions of attributions for loneliness. Journal of Personality and Social Psychology, 43(5), 929-936. Caldwell, M. A., & Peplau, L. A. (1982). Sex differences in same-sex friendship. Sex Roles, 8(7), 721-732. Berg, J., & Peplau, L. A. (1982). Loneliness: The relationship of self-disclosure and androgyny. Personality and Social Psychology Bulletin, 8(4), 624-630. Rubin, Z., Peplau, L. A., & Hill, C. T. (1981). Loving and leaving: Sex differences in romantic attachments. Sex Roles, 7(8), 821-835. Risman, B. J., Hill, C. T., Rubin, Z., & Peplau, L. A. (1981). Living together in college: Implications for courtship. Journal of Marriage and the Family, 43, 77-83. Perlman, D., & Peplau, L. A. (1981). Toward a social psychology of loneliness. In S. Duck & R. Gilmour (Eds.), Personal relationships in disorder (pp. 31-56). London: Academic Press. Reprinted in B. Earn & S. Towson (Eds.) (1986). Readings in social psychology (pp. l37l55). Peterborough, Canada: Broadview Press Ltd. Peplau, L. A., & Cochran, S. D. (1981). Value orientations in the intimate relationships of gay men. Journal of Homosexuality, 6(3), 1-19. Reprinted in J. P. DeCecco (Ed.) (1988). Gay relationships (pp. 195-216). New York: Harrington Park Press. Peplau, L. A. (1981, March). What homosexuals want in relationships. Psychology Today, pp. 28-34, 37-38. Peplau, L. A. (1981). Interpersonal attraction. In D. Sherrod (Ed.), Social psychology, 2nd Ed. (pp. 195-229). New York: Random House. Hill, C. T., Peplau, L. A., & Rubin, Z. (1981). Differing perceptions in dating couples: Sex roles vs. alternative explanations. Psychology of Women Quarterly, 5(3), 418-434. Weeks, D. G., Michela, J. L., Peplau, L. A., & Bragg, M. E. (1980). The relation between loneliness and depression: A structural equation analysis. Journal of Personality and Social Psychology, 39(6), 1238-1244.

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Russell, D., Peplau, L. A., & Cutrona, C. E. (1980). The revised UCLA loneliness scale: Concurrent and discriminant validity evidence. Journal of Personality and Social Psychology, 39(3), 472-480. Rubin, Z., Hill, C. T., Peplau, L. A., & Dunkel-Schetter, C. (1980). Self-disclosure in dating couples: Sex roles and the ethic of openness. Journal of Marriage and the Family, 42(2), 305317. Peplau, L. A. (1980). Sexual aspects of lesbian relationships. Medical Aspects of Human Sexuality, 14(3), 107. Peplau, L. A. (1980). Lesbian mothers. Medical Aspects of Human Sexuality, 14(3), 136-137. Falbo, T., & Peplau, L.A. (1981). Power strategies in intimate relationships. Journal of Personality and Social Psychology, 38(4), 618-628. Rubenstein, C., Shaver, P., & Peplau, L. A. (1979, February). Loneliness. Human Nature, pp. 5865. Peplau, L. A., Russell, D., & Heim, M. (1979). The experience of loneliness. In I. H. Frieze, D. Bar-Tal, & J. S. Carroll (Eds.), New approaches to social problems: Applications of attribution theory (pp. 53-78). San Francisco, CA: Jossey-Bass. Peplau, L. A., & Perlman, D. (1979). Blueprint for a social psychological theory of loneliness. In M. Cook & G. Wilson (Eds.), Love and attraction (pp. 99-108). Oxford, England: Pergamon. Peplau, L. A. (1979). Power in dating relationships. In J. Freeman (Ed.), Women: A feminist perspective, 2nd Ed. (pp. 106-121). Palo Alto, CA: Mayfield Publishing. Reprinted (1984) in the 3rd Edition. Hill, C. T., Rubin, Z., Peplau, L. A., & Willard, S. G. (1979). The volunteer couple: Sex differences, couple commitment and participation in research on interpersonal relationships. Social Psychology Quarterly, 42(4), 415-420. Russell, D., Peplau, L. A., & Ferguson, M. (1978). Developing a measure of loneliness. Journal of Personality Assessment, 42(3), 290-294. Peplau, L. A., Russell, D., & Heim, M. (1978). Loneliness: A bibliography of research and theory. JSAS Catalog of Selected Documents in Psychology, 8, 38. (Ms. No. 1682.) Peplau, L. A., Cochran, S., Rook, K., & Padesky, C. (1978). Loving women: Attachment and autonomy in lesbian relationships. Journal of Social Issues, 34(3), 7-27. This article was awarded the Evelyn C. Hooker research award by the national Gay Academics Union, November 24, 1979. Reprinted in L. Richardson & V. A. Taylor (Eds.) (1983) Feminist frontiers: Rethinking sex, gender & society (pp. 408-419). Reading, MA: Addison-Wesley. Peplau, L. A., & Ferguson, M. (1978). Loneliness: A cognitive analysis. Essence, 2(4), 207220. (This is a Canadian gerontology journal that devoted a special issue to loneliness.)

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Hammen, C. L., & Peplau, L. A. (1978). Brief encounters: Impact of gender, sex-role attitudes, and partner's gender on interaction and cognition. Sex Roles, 4(1), 75-90. Peplau, L. A., Rubin, Z., & Hill, C. T. (1977). Sexual intimacy in dating relationships. Journal of Social Issues, 33(2), 86-109. Peplau, L. A., & Hammen, C. L. (1977). Social psychological issues in sexual behavior: An overview. Journal of Social Issues, 33(2), 1-6. Peplau, L. A., Rubin, Z., & Hill, C. T. (1976). The sexual balance of power. Psychology Today, November, pp. 142, 145, 147, 151. Reprinted in C. Gordon & G. Johnson (Eds.) (1976), Readings in human sexuality: Contemporary perspectives, 2nd Ed. New York: Harper & Row. Reprinted in Annual Editions (1980), Readings in personal growth and adjustment 80/81. Guilford, CT: Dushkin. Peplau, L. A. (1976). Fear of success in dating couples. Sex Roles, 2, 249-258. Peplau, L. A. (1976). Impact of fear of success and sex-role attitudes on women's competitive achievement. Journal of Personality and Social Psychology, 34, 561-568. Hill, C. T., Rubin, Z., & Peplau, L. A. (1976). Breakups before marriage: The end of 103 affairs. Journal of Social Issues, 32(1), 147-168. Reprinted in A. Skolnick & J. Skolnick (Eds.) (1977), Family in transition, 2nd Ed. Boston, MA: Little, Brown & Co. Reprinted in G. Levinger & O. C. Moles (Eds.) (1979), Divorce and separation: A survey of causes and consequences. New York: Basic Books. Reprinted in Peplau, L. A., Sears, D. O., Taylor, S. E., & Freedman, J. L. (Eds.) (1988), Readings in social psychology: Classic and contemporary contributions. Englewood Cliffs, NJ: Prentice-Hall. Rubin, Z., & Peplau, L. A. (1975). Who believes in a just world? Journal of Social Issues, 31(3), 65-90. Reprinted (1977) in Reflections, XII(1), 1-26. Rubin, Z., & Peplau, L. A. (1973). Belief in a just world and reactions to another's lot: A study of participants in the national draft lottery. Journal of Social Issues, 29(4), 73-94. Peplau, L. A. (1972). Intergroup behavior. In Psychology today: An introduction (pp. 545-563). Del Mar, CA: CRM Books. Peplau, L. A. (1972). Patterns of social behavior: The case of sex roles. In Psychology today: An introduction (pp. 487-500). Del Mar, CA: CRM Books. Peplau, L. A. (1967). Infantile autism. Perspectives in Psychiatric Care, 5(3), 112-122. Book Reviews

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Peplau, L.A. (1996). The wit and wisdom of a feminist sexologist. Psychology of Women Quarterly, 20, 173-174. (Review of "Sex is not a natural act and other essays") Peplau, L. A. (1994). Is it a relationship if we're not having sex? Contemporary Boston Marriages. Journal of Sex Research, 31(3), 243-245. (Review of "Boston Marriages: Romantic but Asexual Relationships among Contemporary Lesbians") Peplau, L. A. (1988). Review of "In search of parenthood: Coping with infertility and high-tech conception." Contemporary Psychology, 33(10), 919. Peplau, L. A. (1982). Review of "The Anatomy of Loneliness" and "In Search of Intimacy." Journal of Psychosocial Nursing, 20(11), 38-39. Peplau, L. A., & Gutek, B. (1979). Textbooks on the psychology of women: A review essay. Psychology of Women Quarterly, 4(1), 129-136. Peplau, L. A. (1979). Review of "Friends and Lovers." American Journal of Sociology, 84(6), 1513-1514. Peplau, L. A. (1977). Review of "The Hite Report" and "Sex and Personality." Psychology of Women Quarterly, 2(1), 86-88. Peplau, L. A. (1977). An Introduction to Women's Studies. Contemporary Psychology, 22(12), 933-934. (Review of "Beyond Intellectual Sexism") Peplau, L. A. (1977). Review of "Women and Achievement." Sex Roles, 3(6), 600-602. Peplau, L. A. (1975). Assessing sexual innovation in marriage. Contemporary Psychology, 20(12), 941-942. (Review of "Beyond Monogamy")

Selected Recent Paper Presentations, Invited Addresses and Posters Ghavami, N., Peplau, L. A., Sears, D. & Zawatsky, J. (January, 2012). Diagnosticity of gender and ethnic stereotypes. Society for Personality and Social Psychology, San Diego, CA. Peplau, L. A. (August, 2010). Marriage equality for same-sex couples: Perspectives from relationship research in the United States. Invited Presidential Symposium presented at the annual meeting of the American Psychological Association, San Diego, CA. Peplau, L. A. (August, 2010). Same-sex couples: Research, law and policy. Presented at the International Lesbian, Gay, Bisexual and Transgender Psychology Summer Institute, University of Michigan, Ann Arbor, MI. Hill, C. T., & Peplau, L. A. (July, 2008). Is love blind? Attractiveness ratings by self, partner, and others, and the outcome of dating relationships 25 years later. Paper presented at the International Congress of Psychology, Berlin, Germany.

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Fingerhut, A. D., deRoulhac, C., Natale, C., & Peplau, L. A. (2008, February). Heterosexuals’ attitudes toward gay men and lesbians: Predictors of positive and negative attitudes. Poster presented at the annual meeting of the Society for Personality and Social Psychology, Albuquerque, NM. Frederick, D.A., & Peplau, L.A. (2007, January). The UCLA Body Matrices II: Computergenerated images of men and women varying in body fat and muscularity/breast size to assess body satisfaction and preferences. Poster presented at the annual meeting of the Society for Personality and Social Psychology, Memphis, TN. Mulrenan, T., Frederick, D.A., Sadeghi-Azar, L., Ha, J., Peplau, L.A., & Haselton, M.G. (2006, January). The UCLA Body Matrices as measures of body image and body type preferences. Poster presented at the annual meting of the Society for Personality and Social Psychology Conference, Palm Springs, CA. Laird, K., Mulrenan, T., Frederick, D.A., Grigorian, K., Peplau, L.A., & Haselton, M.G. (2006, January). Sex differences in preferences for dating a taller romantic partner. Poster presented at the annual meeting of the Society for Personality and Social Psychology Conference, Palm Springs, CA. Sadeghi-Azar, L., Frederick, D.A., Mulrenan, T., Peplau, A., Haselton, M.G., & Fessler, D.M.T. (2006, January). Representations of the ideal male and female bodies in popular media. Poster presented at the annual meeting of the Society for Personality and Social Psychology Conference, Palm Springs, CA. Fingerhut, A. W., & Peplau, L. A. (2006, January). Symposium: Integrating social identity perspectives with research on the experiences of lesbians and gay men. Symposium presented at the annual meeting of the Society for Social and Personality Psychology, Palm Springs, CA. Frederick, D.A., Haselton, M., Peplau, L.A., Mansourian, A., & Allameh, S. (2005, January). Sex differences in desires for sexual variety. Poster presented at the annual meeting of the Society for Personality and Social Psychology Conference, New Orleans, LA. Ghavami, N., Fingerhut, W., & Peplau, L. A. (2005, January). A dual-identity approach to understanding stress experiences of lesbians and gay men. Poster presented at the annual meeting of the Society for Social and Personality Psychology, New Orleans, LA. Peplau, L.A., Frederick, D.A., Lever, J., Burklund, L., & Madrid, H. (2005, January). Correlates of body image dissatisfaction among 52,171 online respondents. Society for Personality and Social Psychology Conference, New Orleans, LA. Sadeghi-Azar, L., Frederick, D.A., Allameh, S., Lever, J., & Peplau, L.A. (2005). Attitudes toward cosmetic surgery and the body across the lifespan. American Psychological Society Convention, Los Angeles, CA. Peplau, L.A., Frederick, D.A., Lever, J., Kroskrity, E. (2005). Body image satisfaction among lesbian, gay, and heterosexual adults. American Psychological Society Convention, Los Angeles, CA. Frederick, D.A., Lever, J., Peplau, L.A., Casey, J., & Berezovskaya, A. (2005). Does size matter? Attitudes toward breast size and shape among heterosexual adults. American Psychological Society Convention, Los Angeles, CA.

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Fingerhut. A.W., Peplau, L.A., & Ghavami, N. (2005, February). Gay and Lesbian Psychological Health: The Role of Identity. Poster presented at the National Multicultural Conference and Summit, Los Angeles, CA. Fingerhut, A. W., & Peplau, L. A. (2005, January). Stereotypes of women in the workforce: The role of sexual orientation and parental status. Poster presented at the annual meeting of the Society for Personality and Social Psychology, New Orleans, LA. Peplau, L. A., Lever, J., Frederick, D., Burklund, L., & Madrid, H. (2005, January). Correlates of body image dissatisfaction among 52,171 online respondents. Poster presented at the annual meeting of the Society for Social and Personality Psychology, New Orleans, LA. Peplau, L. A. (2004, November 12). New directions in research on women’s sexual orientation. Invited colloquium, Institute for Social and Behavioral Research, Iowa State University, Ames, Iowa. Peplau, L. A. (2004, September 29). The development of sexual orientation in women: A socialpsychological analysis. Invited colloquium, Psychology and Women’s Studies, University of Michigan, Ann Arbor, MI. Peplau, L. A., Fingerhut, A., & Ghavami, N. (2004, July). Individual differences in gay-related stress: A dual-identity perspective. Hill, C. T., & Peplau, L. A. (July, 2003). Sources of self-esteem: A 25-year study. Paper presented at the 29th Inter-American Congress of Psychology. Peplau, L. A., & Impett, E. A. (2003, April 11). Sexual compliance: Why partners make "sexual sacrifices." Invited presentation, Society for the Scientific Study of Sexuality, Western Region Annual Conference, San Jose, CA. Peplau, L. A. (April 11, 2003). Gender differences in sex and relationships. Invited address, Society for the Scientific Study of Sexuality, Western Region Annual Conference, San Jose, CA. Hill, C. T., & Peplau, L. A. (March 28, 2003). Romantic beliefs and marital outcomes: A 25-year study. Paper presented at the Southeast Psychological Association, New Orleans, LA. Peplau, L. A. (August, 2002). Venus and Mars in the lab: New research on gender and sexuality. Invited Master Lecture, annual meeting of the American Psychological Association, Chicago, IL. Hill, C. T., & Peplau, L. A. (July, 2001). Life satisfaction: A 25-year follow-up of the Boston Couples Study. Presented at the VIIth European Congress of Psychology, London, England. Peplau, L. A., & Garnets, L. D. (May, 2001). A new paradigm for understanding women’s sexual orientation. Presented at the annual meeting of the Western Psychological Association, Maui, Hawaii.

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Exhibit B

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Bibliography Amato, P. R (1996). Explaining the intergenerational transmission of divorce. Journal of Marriage and the Family, 58(3), 628-640. American Anthropological Association Statement on Marriage and the Family (Adopted by the Executive Board of the AAA on February 26, 2004). Retrieved June 10, 2012 from: http://www.aaanet.org/issues/policy-advocacy/Statement-on-Marriage-and-theFamily.cfm. American Psychiatric Association (1974). Position statement on homosexuality and civil rights. American Journal of Psychiatry, 131(4), p. 497 (official actions). American Psychiatric Association. (2005, July). Support of legal recognition of same-sex civil marriage. Retrieved June 10, 2012 from: http://www.psychiatry.org/File%20Library/Advocacy%20and%20Newsroom/Position%2 0Statements/ps2005_SameSexMarriage.pdf. American Psychological Association. (2004). Sexual orientation and marriage: Adopted by the APA Council of Representatives July 28 & 30, 2004. Retrieved June 10, 2012 from: http://www.apa.org/about/governance/council/policy/gay-marriage.pdf. Published in Paige, R. U. Proceedings of the American Psychological Association, American Psychologist, 60(5), p. 494. American Psychological Association. (2008). Answers to your questions: For a better understanding of sexual orientation and homosexuality. Washington, DC: Author. http://www.apa.org/topics/sexuality/sorientation.pdf.

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American Psychological Association. (2009). Report of the Task Force on Appropriate Therapeutic Responses to Sexual Orientation. Washington, DC: Author. http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf. Bozett, F. W. (1982). Heterogenous couples in heterosexual marriages: Gay men and straight women. Journal of Marital and Family Therapy, 8(1), 81-89. Bramlett, M., & Mosher, W. (2002). Cohabitation, marriage, divorce, and remarriage in the United States. National Center for Health Statistics. Vital Health Statistics, 23(22). Carpenter, C. S., & Gates, G. J. (2008). Gay and lesbian partnership: Evidence from California. Demography, 45, 573-590. Chandra, A., Mosher, W. D., Copen, C., & Sionean, C. (2011, March 3). Sexual behavior, sexual attraction, and sexual identity in the United States: Data from the 2006-2008 National Survey of Family Growth. National Health Statistics Reports, No. 36. U.S. Centers for Disease Control. Cherlin, A. J. (2009). The marriage-go-round: The state of marriage and the family in America today. New York: Alfred A. Knopf. Conger, J. J. (1975). Proceedings of the American Psychological Association, Incorporated, for the year 1974: Minutes of the annual meeting of the Council of Representatives. American Psychologist, 30, 620-651. Coontz, S. (2007). The origins of modern divorce. Family Process, 46, 7-16. Division of Vital Statistics, National Center for Health Statistics, CDC, Marriage rates by State: 1990, 1995, and 1999-2010. Retrieved June 10, 2012 from: http://www.cdc.gov/nchs/data/nvss/marriage_rates_90_95_99-10.pdf. Division of Vital Statistics, National Center for Health Statistics, CDC, Divorce rates by State:

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1990, 1995, and 1999-2010. Retrieved June 10, 2012 from: http://www.cdc.gov/nchs/data/nvss/divorce_rates_90_95_99-10.pdf. Gove, W. R., Style, C. B., & Hughes, M. (1990). The effect of marriage on the well-being of adults: A theoretical analysis. Journal of Family Issues, 11, 4-35. Heaton, T. B. (2002). Factors contributing to increasing marital stability in the United States. Journal of Family Issues, 23(3), 392-409. Herek, G. M. (2000). Homosexuality. In A.E. Kazdin (Ed.), Encyclopedia of psychology (Vol. 4, pp. 149-153). Washington, DC: American Psychological Association. Herek, G. M. (2006). Legal recognition of same-sex relationships in the United States: A social science perspective. American Psychologist, 61, 607-621. Herek, G. M. (2009a). Sexual stigma and sexual prejudice in the United States: A conceptual framework. In D.A. Hope (Ed.), Contemporary perspectives on lesbian, gay and bisexual identities: The 54th Nebraska Symposium on Motivation (pp. 65-111). New York: Springer. Herek, G. M. (2009b). Hate crimes and stigma-related experiences among sexual minority adults in the United States: Prevalence estimates from a national probability sample. Journal of Interpersonal Violence, 24, 54-74. Herek, G. M. (2010). Sexual orientation differences as deficits: Science and stigma in the history of American psychology. Perspectives on Psychological Science, 5, 693-699. Herek, G. M., & Garnets, L. D. (2007). Sexual orientation and mental health. Annual Review of Clinical Psychology, 3, 353-375.

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Herek, G. M., Gillis, J. R., & Cogan, J. C. (2009). Internalized stigma among sexual minority adults: Insights from a social psychological perspective. Journal of Counseling Psychology, 56, 32-43. Herek, G. M., Norton, A. T., Allen, T. J., & Sims, C. L. (2010). Demographic, psychological, and social characteristics of self-identified lesbian, gay, and bisexual adults in a U.S. probability sample. Sexuality Research and Social Policy, 7, 176-200. Higgins, D. J. (2006). Same-sex attraction in heterosexually partnered men: Reasons, rationales and reflections. Sexual and Relationship Therapy, 21, 217-228. Hu, Y., & Goldman, N. (1990). Mortality differentials by marital status: An international comparison. Demography, 27,233-250. Johnson, N. J., Backlund, E., Sorlie, P. D., & Loveless, C. A. (2000). Marital status and mortality: The National Longitudinal Mortality Study. Annals of Epidemiology , 10, 224238 . Just the Facts Coalition. (2008). Just the facts about sexual orientation and youth: A primer for principals, educators, and school personnel. Washington, DC: American Psychological Association. Retrieved August 16, 2012 from: http://www.apa.org/pi/lgbt/resources/justthe-facts.pdf. Kaiser Family Foundation. (2001). Inside-out: A report on the experiences of lesbians, gays, and bisexuals in America and the public's view on issues and politics related to sexual orientation. Menlo Park, CA: Author. Retrieved August 16, 2012 from: http://www.kff.org/kaiserpolls/upload/New-Surveys-on-Experiences-of-Lesbians-Gaysand-Bisexuals-and-the-Public-s-Views-Related-to-Sexual-Orientation-Report.pdf. Kim, H., & McKenry, P. C. (2002). The relationship between marriage and psychological

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well-being: A longitudinal analysis. Journal of Family Issues, 23, 885-911. Kinsey, A. C., Pomeroy, W. B., & Martin, C. E. (1948). Sexual behavior in the human male. Philadelphia, PA: W. B. Saunders. Kinsey, A. C., Pomeroy, W. B., Martin, C. E., & Gebhard, P.H. (1953). Sexual behavior in the human female. Philadelphia, PA: W. B. Saunders. Kurdek, L. A. (2004). Are gay and lesbian cohabiting couples really different from heterosexual married couples? Journal of Marriage and Family, 66, 880-900 Kurdek, L. A. (2005). What do we know about gay and lesbian couples? Current Directions in Psychological Science, 14, 251-54. Lamb, K. A., Lee, G. R., & DeMaris, A. (2003). Union formation and depression: Selection and relationship effects. Journal of Marriage and Family, 65, 953-962. Laumann, E. O., Gagnon, J. H., Michael, R. T., & Michaels, S. (1994). The social organization of sexuality: Sexual practices in the United States. Chicago: University of Chicago Press. Lehrer, E. L., & Chiswick, C. U. (1993). Religion as a determinant of marital stability. Demography, 30(3), 385-404. Meyer, I. H. (2003). Prejudice, social stress, and mental health in lesbian, gay, and bisexual populations: Conceptual issues and research evidence. Psychological Bulletin, 129, 674697. Meyer, I. H. (2007). Prejudice and discrimination as social stressors. In I. H. Meyer & M. E. Northridge (Eds.), The health of sexual minorities (pp. 242-267). New York: Springer. Nock, S. L. (1995). A comparison of marriages and cohabiting relationships. Journal of Family Issues, 16, 53-76.

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Pachankis, J. E. (2007). The psychological implications of concealing a stigma: A cognitiveaffective-behavioral model. Psychological Bulletin, 133, 328-345. Pan American Health Organization. (2012). “Cures” For An Illness That Does Not Exist: Purported Therapies Aimed At Changing Sexual Orientation Lack Medical Justification and Are Ethically Unacceptable. Retrieved June 10, 2012 from: http://new.paho.org/hq/index.php?option=com_docman&task=doc_download&gid=1770 3&Itemid=. Pascoe, E. A., & Richman, L. S. (2009). Discrimination and health: A meta-analytic review. Psychological Bulletin, 135, 531-554. Peplau, L. A., & Cochran, S. D. (1990). A relationship perspective on homosexuality. In D. P. McWhirter, S. A. Sanders, & J. M. Reinisch (Eds.), Homosexuality/heterosexuality: Concepts of sexual orientation (pp. 321-349). New York: Oxford University Press. Peplau, L. A., & Fingerhut, A. W. (2007). The close relationships of lesbians and gay men. Annual Review of Psychology, 58. 10.1-10.20. Peplau, L. A., & Garnets, L. D. (2000). A new paradigm for understanding women’s sexuality and sexual orientation. Journal of Social Issues, 56 (2), 329-350. Proulx, C. M., Helms, H. M., & Buehler, C. (2007). Marital quality and personal well-being: A meta-analysis. Journal of Marriage and Family, 68, 576-593. Raley, R. K., & Sweeney, M. M. (2007). What explains race and ethnic variation in cohabitation, marriage, divorce, and non-marital fertility? California Center for Population Research On-Line Working Paper Series, CCPR-026-07. Ramos, C., Goldberg, N. G., & Badgett, M. V. L. (2009, May). The effects of marriage equality in Massachusetts: A survey of the experiences and impact of marriage on same-sex

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couples. The Williams Institute, UCLA Law School, Los Angeles, CA. Retrieved June 10, 2012 from: http://williamsinstitute.law.ucla.edu/wp-content/uploads/RamosGoldberg-Badgett-MA-Effects-Marriage-Equality-May-2009.pdf. Schoenborn, C. A. (2004). Marital status and health: United States, 1999-2002. Advance Data from Vital and Health Statistics, Number 351, December 15, 2004. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services. Teachman, J. D. (2002). Stability across cohorts in divorce risk factors. Demography, 39(2),331 351. Testa, R. J., Kinder, B. N. & Ironson, G. (1987). Heterosexual bias in the perception of loving relationships of gay males and lesbians. Journal of Sex Research, 23, 163-72. Thoits, P. S. (2010). Stress and health: Major findings and policy implications. Journal of Health and Social Behavior, 51 no. 1 supplement, S41-S53. Umberson, D. (1992). Relationships between adult children and their parents: psychological consequences for both generations. Journal of Marriage and the Family, 54(3), 664-674. Waite, L.T. (1995). Does marriage matter? Demography, 32, 483-507. Waldron, I., Hughes, M. E., & Brooks, T. L. (1996). Marriage protection and marriage selection—prospective evidence for reciprocal effects on marital status and health. Social Science and Medicine, 43, 113-123.

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Case 2:13-cv-00217-RJS Document 85-7 Filed 11/22/13 Page 1 of 5

             

Exhibit 6

App. 000246 - Pls.' SJ Opp'n, Kitchen v. Herbert

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JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice) PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050 CARLA CHRISTOFFERSON (pro hac vice) DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com Tel: 213.430.6000 | Fax: 213.430.6407 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com Tel: 702.784.5200 | Fax: 702.784.5252 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BEVERLY SEVCIK, et al., Plaintiffs, v. BRIAN SANDOVAL, et al., Defendants, and COALITION FOR THE PROTECTION OF MARRIAGE, Defendant-Intervenor. No. 2:12-CV-00578-RCJ-PAL SUPPLEMENTAL DECLARATION OF LETITIA ANNE PEPLAU, PH.D. IN SUPPORT OF PLAINTIFFS’ COMBINED OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT BY DEFENDANT SANDOVAL, DEFENDANT GLOVER, AND DEFENDANTINTERVENOR COALITION FOR THE PROTECTION OF MARRIAGE

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I, Letitia Anne Peplau, Ph.D., hereby declare and state as follows: 1. I have been retained by counsel for Plaintiffs as an expert in connection with the

above-referenced litigation. I have actual knowledge of the matters stated in this declaration and could and would so testify if called as a witness. 2. I have already provided a declaration of my opinions in this litigation. A complete

explanation of my background, qualifications, expert testimony experience, and compensation appears in my declaration dated August 20, 2012. Dkt. 86-2. 3. I have reviewed the Motion for Summary Judgment and Memorandum in Support

filed by Defendant-Intervenor Coalition for the Protection of Marriage (“Coalition”). Dkt. 72. Nothing in the motion disproves or contradicts the testimony I offered in my original declaration. I have been called upon to respond to certain assertions made in the motion, including that (1) allowing same-sex couples to marry would harm the institution of marriage and that (2) marriages between same-sex couples are more focused upon love and personal fulfillment and less focused upon duty and responsibility than marriages between different-sex couples. I submit this further declaration in order to respond to these assertions, which are unsupported by, and disproven by, the evidence. I. Allowing Same-Sex Couples to Marry Will Not Harm The Institution of Marriage or Minimize Its Importance in Society. 4. The Coalition asserts that allowing same-sex couples would “de-institutionalize

the man-woman marriage institution,” and defines “de-institutionalization” as when a “social institution constituted by [previously institutionalized public] meanings and norms disappears.” Dkt. 72 at 3. To the extent that the Coalition contends that allowing same-sex couples to marry would cause the institution of marriage to “disappear” – or to be negatively affected in any way – this is false and misleading. 5. Although marriage has changed over the years, it has not disappeared as a social

institution. Marriage continues to be held in high esteem by most Americans, and most Americans either have married or would like to marry. See Saad, L. (2006), Americans Have Complex Relationship With Marriage, Gallup News Service, retrieved September 27, 2012 from:

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http://www.gallup.com/poll/23041/americans-complex-relationship-marriage.aspx. Allowing same-sex couples to marry, as six states and the District of Columbia currently do, certainly has not caused the institution of marriage to cease to exist or to be adversely affected. 6. There is no empirical reason to believe that allowing marriage by same-sex

couples will lead different-sex couples to abandon the institution of marriage, either by declining to marry or ending their current marriages. To the contrary, institutions are stronger when they have more (rather than fewer) members. Allowing same-sex couples to marry would bring additional people within the institution of marriage who are otherwise denied membership rights. As explained in my original declaration, the factors that cause different-sex couples to marry or divorce and that contribute to relationship quality and stability are well-understood, and they function independently of whether same-sex couples may marry. 7. The notion that permitting same-sex couples to marry will cause some

heterosexual people – either for religious or moral reasons – to reject marriage as unacceptable or repugnant is also far-fetched and unsupported by anything but conjecture. Even if same-sex couples could marry across the United States, those same-sex couples who married would still constitute a small percentage of all married American couples. It is hard to fathom how this tiny minority would suddenly become the “baseline” for the marriage experience. II. Same-Sex Couples Are Similar To Different-Sex Couples; There Is No Support For The Notion That Same-Sex Couples Are More Focused On Love And Personal Fulfillment And Less Focused on Duty and Responsibility Than Different-Sex Couples. 8. The Coalition asserts that allowing same-sex couples to marry would “teach[] that

marriage is a ‘private relationship between two people created primarily to satisfy the needs of adults’” rather than children. Dkt. 72 at 14. First, it does not make sense to suggest that same-sex couples who want to marry are less focused than different-sex couples on duty and responsibility because, as discussed in my original declaration, marriage itself creates many duties and responsibilities. Same-sex couples who marry are embracing the same responsibilities as different-sex couples who marry. Allowing same-sex couples to marry has no necessary implication for the many rights and responsibilities of spouses, for expectations about trust and

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Exhibit 7

App. 000251 - Pls.' SJ Opp'n, Kitchen v. Herbert

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice) PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050 CARLA CHRISTOFFERSON (pro hac vice) DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com Tel: 213.430.6000 | Fax: 213.430.6407 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com Tel: 702.784.5200 | Fax: 702.784.5252 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BEVERLY SEVCIK, et al., Plaintiffs, v. BRIAN SANDOVAL, et al., Defendants, and COALITION FOR THE PROTECTION OF MARRIAGE, Defendant-Intervenor. No. 2:12-CV-00578-RCJ-PAL DECLARATION OF GARY M. SEGURA, PH.D. IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.

I, Gary M. Segura, Ph.D., hereby declare and state as follows: PRELIMINARY STATEMENT Expert Background and Qualifications 1. I am a Professor of American Politics in the Department of Political Science at

Stanford University. I have been retained by counsel for Plaintiffs as an expert in connection with the above-referenced litigation. I have actual knowledge of the matters stated in this declaration and could and would so testify if called as a witness. My background, experience and list of publications from the last 10 years are summarized in my curriculum vitae, which is attached as Exhibit A to this Declaration. 2. In the past four years, I have testified as an expert—either at trial or through

declaration—or been deposed as an expert in Windsor v. U.S., No. 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y.), Dragovich v. U.S. Dep’t of the Treasury, CV 4:10-01564-CW (N.D. Cal.), Golinski v. Office of Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012), Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010), Massachusetts v. United States HHS, 698 F. Supp. 2d 234 (D. Mass. 2010), Pedersen v. Office of Personnel Management, No. 3:10-cv-01750-VLB (D. Conn.), and Jackson v. Abercrombie, Civ. No. 11-00734 ACK-KSC (D. Haw.). 3. I received a Ph.D. in American Politics and Political Philosophy from the

Department of Political Science at the University of Illinois in Urbana-Champaign in 1992. My tertiary field of emphasis was political methodology. My MA was also from the University of Illinois in 1990, and I earned my undergraduate degree from Loyola University of New Orleans in 1985. 4. I am also the founding Director of the Institute on the Politics of Inequality, Race

and Ethnicity at Stanford, and the founding co-Director of the Stanford Center for American Democracy. In the latter role, I am one of the Principal Investigators of the American National Election Studies for 2009-2013, the premier data-gathering project for scholars of American elections. 5. My primary emphases in my scholarly research and writing are on public

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attitudes, opinion, and behavior with respect to politics, and minority group politics. I have taught classes on elections, public opinion, representation, Congress, Latino politics, gay and lesbian politics, race and racism, the Voting Rights Act, inequality and American democracy, interest group politics, philosophy of science, research design, and statistical analysis (introductory and advanced). 6. To date, I have authored 44 article-length publications in professional journals

and edited volumes. Those journals include the American Political Science Review, the American Journal of Political Science, Political Research Quarterly, Political Behavior, and the Journal of Politics. I edited Diversity in Democracy: Minority Representation in the United States, published by the University of Virginia Press in 2005. I am also the co-author of Latino Lives in America: Making It Home, addressing new patterns of Latino life and politics in the U.S., published by Temple University Press in 2010. I have a third book that was published in 2011 with Congressional Quarterly Press, entitled “The Future is Ours:” Minority Politics, Political Behavior, and the Multiracial Era of American Politics, a comparative exploration of political behavior across American racial and ethnic minority groups and how such behaviors will shape American party coalitions in the coming decades. I am the co-author of a fourth book, Latinos in the New Millennium: An Almanac of Opinion, Behavior, and Policy Preferences, which was published earlier this year. 7. I am the former President of the Midwest Political Science Association

(MPSA), the second-largest organization of American political scientists. In 2006, I was the General Program Chair of the MPSA Annual Meeting. In 2011, I was elected Vice-President and Program Chair of the Western Political Science Association for 2012-2013, and will serve as President in 2013-14. In addition, I am a member and former Executive Council Member of the American Political Science Association, member and former Executive Council Member of the Western Political Science Association, and member of the Southern Political Science Association. I serve or have served on the editorial boards of the American Journal of Political Science, Journal of Politics, and Political Research Quarterly. I am a member of the Sexuality and Politics organized section of the American Political Science Association, have served on the

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Southern Political Science Association’s Committee on the Status of Gays and Lesbians, and was part of the Executive Committee of the Sexuality Studies Program at the University of Iowa. 8. In preparing this declaration, I reviewed the Complaint in this case and the

materials listed in the attached list of sources (Exhibit B). I rely on those documents, in addition to the documents specifically cited as supportive examples in particular sections of this declaration, as support for my opinions. I have also relied on my years of experience in the field of political science, as set out in my curriculum vitae (Exhibit A), and on the materials listed therein. 9. I am being compensated for this effort at a rate of $250.00 per hour. I will be

compensated at $350.00 per hour for work performed while traveling, and I will be reimbursed for expenses incurred while traveling in connection with my services. My compensation does not depend on the outcome of this litigation, the opinions I express, or the testimony I provide. II. Summary of Conclusions 10. Gay men and lesbians do not possess a meaningful degree of political power and

are politically vulnerable, relying almost exclusively on allies who are regularly shown to be insufficiently strong or reliable to achieve their goals or protect their interests. The powerlessness of gay men and lesbians is evidenced in numerous ways, and they are subject to political exclusion and suffer political disabilities greater than other groups that have received suspect classification protection from the courts. III. Political Powerlessness in General 11. Any evaluation of the political power of a particular group in the United States

takes place in the context of a general understanding of the role that groups play in American politics. From James Madison onward, American democracy frequently has been understood as a pluralist system, in which competition among groups should ideally ensure that no one interest becomes permanently dominant, or determines outcomes over a large number of decisions over a long time. Madison believed that in an “extended” republic, coalitions commanding the day on one issue would dissolve and be replaced by a different majority coalition on the next issue. 12. Modern political scientists generally approach pluralism through the concept of

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group interests. In what David Truman calls “disturbance” theory, the action of one group raises challenges to the interests of another, causing the latter to react, and preventing a single interest from dominating the political process. However, scholarly work on collective action (including Mancur Olson among others) has found that not all groups have an equal opportunity to form and act successfully to stave off threats to their interests. Differences in group size, resources, and position in the class structure mean that some groups are inherently better positioned to act on their own behalf than others, and some groups suffer a permanent disadvantage that places them at the mercy of others. Reflecting this concern, eminent political scientist Elmer Eric Schattschneider famously wrote, “The flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-class accent.” Those with greater resources—time, money, and numbers—exert greater influence on the political process. Minorities, by definition, are less numerous than the majority. 13. The existence of societal prejudice against a particular group makes the

accumulation of resources, including finances and allies, more difficult. Moreover, that same prejudice imposes an additional systematic burden because it tends to prevent that group’s interests or policy preferences from receiving due consideration by other actors in the political process, or causes that consideration to be sacrificed for the sake of political expediency. Relative to minority groups that are otherwise similarly situated, a group that suffers such prejudice does not receive an equivalent hearing in political contestation and debate. Constitutions (and courts, through judicial review) play the role of the Madisonian corrective in the pluralist system by protecting disadvantaged minorities from majoritarian excesses and from effective exclusion from the political process. 14. Political power refers to a person’s or group’s demonstrated ability to extract

favorable (or prevent unfavorable) policy outcomes from the political system. In a wellestablished and commonly cited definition, Robert Dahl wrote that A has power over B when A is able to compel B to do something that B otherwise would not do. Thus, simple meetings of the mind are insufficient to demonstrate the exercise of power. One does not have power over those

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who, for other reasons, already agree. For example, in the last national election, millions voted for the same candidate I did, but this is not evidence of my electoral influence. 15. Power may also be reflected in the content of the political agenda, the issues that

are considered for legislative action. More powerful political actors face fewer legislative threats to their interests than less powerful actors. The very circumstance of being forced to defend interests against potential legislative action is a reflection of weakness rather than strength. 16. Groups that lack political power may, on occasion, receive pledges of support, or

even desirable legislative outcomes, that they themselves lack the power to compel through the political process. An elected official may arrive at a position on a policy or proposal for their own reasons unrelated to the specific communicated preferences of the minority group’s constituents. 17. In some instances, the minority preferences may be entirely beside the point. For

example, an elected official may choose not to support a bill or policy proposal because he or she may determine that the policy has implications adverse to other interests or because the costs of implementation or enforcement of the policy are too great. 18. Positive legislative outcomes may also be the result of “affinity” or sympathy from

legislators in a position to bestow them. An elected official may decide not to support a bill or policy proposal that discriminates against, singles out, or mistreats a minority group because he or she independently believes that discriminating against, singling out, or mistreating the minority group is wrong. But since these pledges or outcomes are not the result of an exercise of political power by the minority group, they are not necessarily indicative of a group’s actual political power. Moreover, they are significantly more vulnerable to reversal than those achieved through the exercise of actual power. The affinity or sympathy that gave rise to the support could dissipate or flatten, and is likely to be abandoned in the face of subsequent opposition, and in the absence of sufficient power and influence of the minority group to counter opposition. 19. For example, in the 2011 legislative debate over the legalization of marriage for

same-sex couples in the Maryland House of Delegates, several members of the chamber who had co-sponsored the legislation—and even some who had solicited endorsements and donations

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during the election cycle on this basis—ultimately voted against it in committee, publicly announced their intention to vote against it on the floor, and subsequently did so. These legislators’ apparent support in the earlier stage of the legislative process was costless, and withered in the face of mobilized opposition and as an actual roll-call vote approached. 20. Following Dahl’s understanding, power can be illustrated only in comparison to a

baseline understanding of the decision-makers’ preferred actions. That is, to demonstrate that power had been at work, one would need to observe successful instances of opinion change on the part of a legislator in the face of positive or negative sanction or, alternatively, electoral change precipitated by the ire of the dissatisfied constituency. 21. Apparent policy “agreement” is a particularly erroneous measure of power when

mere “agreement” requires no action on the part of the policy-maker. Again, the example of candidates and officials endorsing a policy position, only to recant that support when an actual vote approaches, illustrates the illusory nature of this form of support. 22. My opinion does not rest on the extreme assumption that in no place, at no time,

under any circumstances, have gay men and lesbians won any outcome. 23. Rather, my view is that one must weigh the relative impact of positive and

negative outcomes against the numerosity of moments of contestation and the insecure nature of legislative gains. Policy “successes” should not be considered in isolation. While legislative gains have occurred in some states and localities, numerous jurisdictions have adopted statutes and constitutional amendments expressly in opposition to the interests of gay men and lesbians. Even an assessment of “trend” requires consideration of the relative frequency of positive and negative outcomes and the stakes involved in each of the policy debates. 24. Policy successes—whether at the state or federal level—are insecure so long as

the rights and legal status of lesbians and gays remains a subject of legislative action. We must consider the frequency with which legislative gains have been repealed, turned back by the voters, or foregone altogether, as well as the serious risk of repeal of legislative gains after each election cycle in which political power shifts to a different political party. Recent policy modifications, such as the adoption of a mechanism that led to the end of the “Don’t Ask, Don’t

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Tell” policy, illustrate precisely this dynamic. Several prospective Republican presidential candidates who ran for office in the 2012 Republican primary expressed support for a repeal of this legislation and the reinstatement of “Don’t Ask, Don’t Tell,” a view also shared by members of the new House majority and Republican members of the Armed Services Committee. Similarly, after the Maine legislature passed legislation in 2009 to provide same-sex couples access to marriage, voters overturned the law a few months later by referendum. The Washington and Maryland legislatures also enacted legislation this year to allow same-sex couples to marry, but opponents of the legislation appear to have gathered sufficient signatures to subject both measures to a referendum by popular vote in November 2012. 25. Even positive outcomes for gay men and lesbians that are secured through court

rulings are vulnerable to popular or legislative rollback. For example, in response to the Iowa Supreme Court’s ruling that lesbians and gay men could not be excluded from the institution of civil marriage, anti-gay forces like the National Organization for Marriage organized a nationally funded campaign to defeat three of the members of that court in judicial retention elections in November 2010, and were ultimately successful in defeating all three. The defeat of state jurists facing retention elections has the dual effect of weakening that court’s majority—raising the possibility of their reversing the previous decision—as well as chilling similar action by jurists in other states whose judicial views might otherwise lead them to similar conclusions. 26. Furthermore, many of the policy “successes” that have benefitted gay men and

lesbians are measures that remediate or repeal express, de jure discrimination against the group. Remediation of existing discrimination and disadvantage should be distinguished from affirmative political power. For example, the adoption of hate crimes statutes inclusive of sexual orientation, while a “success” for gay men and lesbians, was necessary only because there is such prevalent bias-related violence against gay men and lesbians. While a fair assessment of the relative political “power” of gay men and lesbians would include the adoption of such legislation, it must also include a consideration of the underlying behavior and bias that gave rise to the need for the legislation, which is an indicator of political powerlessness, not strength. 27. In light of the political disadvantages still faced by a small, targeted, and disliked

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group, I conclude that gay men and lesbians are powerless to secure basic rights within the normal political processes. 28. Traditional markers of political powerlessness include systematic disadvantages

in the political process; the existence of significant prejudice, stigmatization, or de facto or de jure second-class status; or an inability, alone or in concert with reliable coalition partners, to secure basic rights or equal treatment from and within the political process. Here, I organize traditional markers of political powerlessness into two categories: (1) manifestations of power and powerlessness, on which gays and lesbians score poorly; and (2) factors that contribute to political disadvantage, on which gays and lesbians—to their detriment—score high. IV. Political Powerlessness of Gays and Lesbians A. 29. Manifestations of Political Powerlessness Although an exhaustive catalog is impossible, the lack of meaningful political

power possessed by gay men and lesbians is reflected in numerous features of the nation’s laws, institutions, and political history that are adverse to policy outcomes favored by and important to gay men and lesbians. Some examples are discussed below. The political powerlessness of gay men and lesbians is evidenced by their inability to bring an end to pervasive prejudice and discrimination, and to secure desired policy outcomes and prevent undesirable outcomes on fundamental matters that closely and directly impact their lives. Furthermore, the demonstrated vulnerability of occasional and geographically confined policy gains to reversal or repeal is indicative of a role played by “affinity” or sympathy, rather than the exercise of meaningful political power by gays and lesbians. (1) Absence of Statutory Protection/Presence of De Jure Statutory Inequality

30.

To date, there is no federal legislation prohibiting discrimination against gay men

and lesbians in employment, education, access to public accommodations, or housing. Indeed, the history of the Employment Non-Discrimination Act (ENDA) provides a good example of gay men and lesbians’ inability to compel policy outcomes for which they actively advocate. ENDA, which would extend employment protections on the basis of sexual orientation (and in some

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versions, gender identity) has been introduced regularly since 1994 (with earlier versions existing as far back as the 1970s), but has never passed both houses of Congress. It has failed to win passage in both Republican- and Democratic-controlled Congresses. While the legislation attracts many “co-sponsors,” one cannot test the reliability or strength of this support in the absence of a recent and meaningful vote, or any realistic chance of its passage. The almost complete absence of legislative progress on the issue suggests that, at the very least, it is not a legislative priority for most legislators or the leadership of either party and, at worst, that the “support” is rhetorical and without substance. 31. In 1996, Congress adopted the “Defense of Marriage Act,” or DOMA, which,

among other things, prevented even legally married same-sex couples from filing joint tax returns, inheriting social security benefits, and obtaining all of the other rights afforded to married individuals by federal law. This preclusion of rights acquisition was signed into law by a Democratic president. Until recently, litigation against DOMA was actively resisted by both Democratic and Republican administrations. Indeed, until February 2011, the Obama Justice Department defended the constitutionality of DOMA despite the administration’s public support for its legislative repeal. And the recent decision by the Department of Justice to cease its defense of DOMA in court came only after one house of Congress passed into the control of the opposite party, thus allowing that body the opportunity to intervene in the litigation. In short, it was a change of course without immediate practical effect. The same is true for President Obama’s and Vice President Biden’s recently announced personal support for the freedom to marry for same-sex couples, and the addition of this position to the Democratic platform in 2012. Their personal views and the platform have no practical effect on the exclusion from marriage faced by same-sex couples across the country. More to the point, in no instance can we identify an effect of lesbian and gay political power at work, here. Gay and lesbian voters were in no position to insist on these changes, nor are they able to compel candidates across the party to abide by them. Properly understood, they reflect affinity of the current President and the platform committee, but not power.

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32.

Despite a long-documented record of violence against gay men and lesbians,

attempts to extend existing federal hate crimes to include violent crimes based on the perceived sexual orientation of the victim reached fruition only in 2009, after more than a decade of advocacy by civil rights groups and supporters. Previously, gays and lesbians enjoyed virtually no such federal protection. The legislative process that produced even this positive outcome is illustrative of the political powerlessness of gay men and lesbians. To provide political cover, the bill extending hate crimes protections to gays and lesbians was attached to and adopted as part of a Defense Appropriations Bill. Even under these circumstances, 75% of Republican members of the Senate voted against it. In the House of Representatives, 131 of 175 Republican members voting (again, 75%) also opposed the hate crimes provision, illustrating at once the depth of opposition to even ameliorative measures that benefit gay men and lesbians, as well as the fragility of the institutional support for such outcomes. It is again worth noting that the impetus for this legislation was the pattern of violence directed at gay men and lesbians, a circumstance that provides important context for why the adoption of such a provision need not represent an exercise of “power.” 33. In 1993, Congress codified the military’s “Don’t Ask, Don’t Tell” (DADT)

policy, under which lesbians and gay men were required to conceal their sexual orientation in order to serve in the military, were investigated if suspected to be gay, and were discharged if they disclosed or were found to be gay. Like the “Defense of Marriage Act,” this legislation was signed by a Democratic president. In December 2010, Congress adopted a provision with an administrative mechanism that led to the end of this policy. But the circumstances under which even this positive outcome was achieved highlight the ultimate political powerlessness of gays and lesbians. The DADT policy was in effect for over 17 years and, despite significant evidence of abuse—including discharges initiated based on unsubstantiated allegations and third-party accusations, and aggressive investigations beyond the bounds of the policy—and its cost to the military, repeal had not seriously been considered. Both Republican and Democratic administrations defended DADT in court. The current Democratic administration discouraged legislative attempts to attach legislation repealing DADT to the Defense Authorization bill in the

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summer of 2010, or indeed at any point prior to the November 2010 election. There was no legislative action on the policy for most of the 111th Congress, beyond committee hearings, and despite widespread shifts in public opinion on this issue, no final action was taken prior to the general election. When the matter was finally taken up during the lame-duck session, Republican members offered fierce opposition in both legislative chambers. Of 175 votes cast in the House by Republican Party members, 160 (or 91.4%) were against the provision to repeal DADT. In the Senate, 31 of 39 Republican senators (79.5%) opposed the repeal. Like the hate crimes legislation, the DADT repeal illustrates the limited access gay men and lesbians have to the legislative process because of such stalwart opposition. 34. On the state level, there is no statutory protection against discrimination in

employment or public accommodations based on sexual orientation in twenty-nine states. 35. De jure inequality also exists in state constitutional law. In 1990, there was not a

single state constitutional provision that targeted gay men and lesbians for unequal treatment. Today, in over three-fifths of the states there is now constitutionally-established inequality—that is, the exclusion of gay men and lesbians from the civil institution of marriage is formally written into the framework of government. Indeed, in many states, including Nevada, voters passed ballot initiatives to amend their state constitutions to prohibit same-sex couples from marrying even after the state legislature had already passed statutes barring same sex couples from marrying. At least 10 additional states affirmatively exclude gay men and lesbians from civil marriage by statute but have not yet amended their constitutions. 36. The presence of domestic partnership and civil union laws adopted in various

states, rather than viewed as an “accomplishment,” is best understood as an illustration of the political weakness of gay and lesbian political efforts. These laws are enacted for one of two reasons: either (1) civil marriage equality is politically unattainable in a state, either through the array of existing political forces or the presence of a constitutional bar—which also illustrates the weakness of lesbian and gay politics—or (2) the enactment of a domestic partnership or civil union law would have the effect of complying with a court order to address gay and lesbian exclusion, as was the case when Vermont originally adopted civil unions. Notably, in Vermont,

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the civil union law was the legislature’s way of not granting civil equality to lesbian and gay citizens, despite a court order. (2) Repeal or Pre-Emption of Legislative or Judicial Protections Through Ballot Initiatives

37.

Evidence from the past two decades in particular has demonstrated that gay men

and lesbians are especially vulnerable in the context of direct democracy. That is, positive legislative outcomes achieved at the state and local levels are often insecure. Initiatives and referenda frequently and effectively have been used to reverse or pre-empt the legislative grant at the state or local levels of policies benefiting or protecting gays and lesbians. These ballot initiatives can be broken into three groups: (1) those which overturn anti-discrimination policies, (2) anti-marriage initiatives, and (3) restrictions on adoption. 38. Overturning anti-discrimination policies—The first wave of ballot actions on gay

and lesbian rights began in the early 1970s, but reached its peak in the 1990s. The most common form was citizen initiatives to overturn municipal, county, or state extensions of antidiscrimination policies to sexual orientation. These ballot actions were generally successful. Legislative enactments were overturned in cities and counties across the country, including Santa Clara County and the City of San Jose, California; Tacoma, Washington; Lewiston, Maine; Lansing, Michigan; St. Paul, Minnesota; Wichita, Kansas; and perhaps most famously, MiamiDade County, Florida. A very small number of pro-gay votes also occurred and, not surprisingly, did not fare as well, including the defeat of a voter attempt to compel the Davis, California City Council to enact a gay rights ordinance. Haider-Markel and colleagues (2007) identified 143 votes from the 1970s through 2005, and found that gay and lesbian rights were defeated or overturned in more than 70% of the cases—with the opponents of those rights prevailing at about the same rate for local and state elections. The frequency of electoral and policy conflict over non-discrimination statutes declined once the focus of the struggle increasingly centered on preventing legal recognition of same-sex couples’ relationships. It is worth noting that many anti-gay measures amended city charters or state constitutions to increase the burden on gays and lesbians and their supporters for accomplishing policy change, such as Colorado’s Amendment 2,

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struck down by the Supreme Court in Romer v. Evans, 517 U.S. 620 (1996). The general approach of such measures was to prohibit legislative action preemptively, and require that any change be through popular, majority vote (with all of the disadvantages for minority rights this carries). Most recently, the state of Tennessee adopted a new “anti-discrimination” law in May of last year that specifically forbid any jurisdiction from enacting any anti-discrimination measures that went beyond the protections in state law (which currently excludes lesbians, gay men, bisexual and transgender people from all anti-discrimination protections). As a result, Nashville’s two ordinances protecting gay men and lesbians from workplace discrimination were rendered unenforceable. Similar measures are being advocated in other state legislatures. 39. Anti-marriage initiatives—In 2004 alone, anti-marriage equality ballot initiatives

passed in 13 states. To date, gay and lesbian marriage rights have been voted on at the state level 35 times, most recently in North Carolina on May 8, 2012. In only one instance did the pro-gay position win, when Arizona’s Proposition 107, which also would have affected unmarried heterosexual couples, failed in 2006; the constitutional amendment passed handily in 2008 when it was narrowed to affect only gay men and lesbians. (Colorado, likewise, had two competing anti-marriage initiatives, only one of which failed. The two appeared simultaneously on the ballot, and although the harsher initiative failed, a more narrowly tailored effort passed on the same day.) 40. In Maine, the state legislature managed to adopt marriage equality for same-sex

couples through statute. That policy success was short lived, as a popular majority was able to overturn legislative action and reinstate the ban on marriage between same-sex couples through statewide ballot on “Question 1.” This outcome was secured with massive intervention from national anti-gay organizations, such as the National Organization for Marriage, as well as substantial investment by religious organizations, including the Roman Catholic Church, whose role was documented and touted in Catholic media sources. Campaign materials used by interests opposing marriage equality were, in some instances, identical to those used in the campaign to repeal marriage equality in California via Proposition 8, illustrating the vast and national reach of those interests working against the interests of gay men and lesbians.

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41.

Adoption—In five states, gay men and lesbians are prohibited from adopting

children. Some of these bans were adopted recently. For example, in 2008, Arkansas voters adopted Arkansas’ Act One, which prohibited adoption by unmarried cohabitating couples, an act conceived with regard to—and targeted at—same-sex couples. Act One was struck down in April 2011 as an unconstitutional infringement on the right to privacy by the Arkansas Supreme Court. That decision notwithstanding, it is possible, and I think likely, that these initiatives or legislative actions will appear elsewhere in the future. Indeed, Arizona recently enacted a statutory preference for heterosexuals in the state’s foster and adoption programs. In the 2008 American National Election Study, 47.6% of respondents nationwide felt that gay men and lesbians should be prohibited from adopting. Since that percentage varies widely across states, I and others expect initiatives to prohibit same-sex couples from adopting to start appearing in states where the level of opposition exceeds 50%. 42. Thus, beyond the obstacles gay men and lesbians face in the traditional legislative

process, ballot initiatives further disadvantage them politically and have undone many of the benefits they have obtained through legislative action. The success of anti-gay ballot initiatives, moreover, makes it less likely that legislatures will enact pro-gay policies in the first place (Lax and Phillips 2009), because elected officials will fear having their actions overturned by angry constituents. Moreover, many gay and lesbian activists fear that the reactive post-initiative policies will be worse than the status quo, thereby forcing them to consider whether foregoing legislative policy change in the first instance is actually in the best interests of the group. For example, several successful anti-marriage ballot initiatives also prohibited civil unions and domestic partnerships, removing benefits that had existed prior to the enactment of the anti-gay ballot initiatives. 43. Ballot initiative campaigns are frequently polarizing, are built on enormous sums

of money, and are waged primarily in the non-deliberative media of mass advertising. Small minorities are even less able to protect their interests in these kinds of contests than they are in the legislative process, which—as a result of legislative districts, institutional rules, coalitional politics, and other factors—tends to give smaller minorities more of an opportunity to prevent

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undesirable outcomes. The passage of Proposition 8 in California and Question 1 in Maine both illustrate that coalition politics are more easily broken down in popular vote situations where misleading messages can circumvent community leaders and office holders. 44. Although the use of the initiative process against gay and lesbian policy goals is a

comparatively recent phenomenon, in the past, ballot initiatives were used to undo legislative gains by immigrants, non-English speakers, African Americans, and minorities generally, including overturning fair housing statutes, affirmative action programs, bilingual education, and establishing English as an official language. Historians of the turn-of-the-century progressive movement, when these direct democracy processes were established and written into the laws of the western states, note the association of progressive reforms with anti-immigrant sentiment (among other factors). Indeed, the progressive movement created the initiative process in order to allow the majority to overturn decisions made by legislatures, which allow a greater role for bargaining and coalitional politics. But the initiative process has now been used specifically against gay men and lesbians more than against any other social group. 45. While there has been an increase in state and local jurisdictions with statutory anti-

discrimination protections for gay men and lesbians over the last two decades, these legislative successes have been resisted strongly at the ballot box. Again, in three-fifths of the 50 states, voters have amended their state constitutions to establish formal political and social inequality for gays and lesbians. Similar proposals to amend the federal constitution have also been considered. (3) 46. Underrepresentation in Political Office

Gay elected officials have risen to various offices around the country. These

representatives may strive to advocate for gay and lesbian rights, but their numbers and limited legislative impact on issues concerning those rights continue to demonstrate significant underrepresentation and reliance on friendly, heterosexual representatives, over whom gay men and lesbians hold no direct political power. For example, 85 state legislators nationwide are openly gay, but the total number of state legislators nationwide is 7,382, so those 85 legislators represent only 1.2% of the total. A recent study by the Williams Institute estimated the gay, lesbian and bisexual population of the U.S. to be approximately 3.5%. Under even the most conservative

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estimates of gay and lesbian population share, this number indicates that gays and lesbians are substantially under-represented. Prior to 1990, only four openly gay men or lesbians were members of state legislatures. 47. There have been only seven openly gay members of Congress in history, and

only four—considerably less than one percent of all members—serve today (.9% of the House, .75% of the entire Congress). Four of those seven were initially elected to the House with their sexual orientation not publicly known. Only three members were first elected to the House without the benefits of incumbency and with widespread public familiarity with their sexual orientation, Jared Polis (D-CO), Tammy Baldwin (D-WI), and David Cicilline (D-RI). The first two represent districts that are home to the flagship campus of their state universities—districts that are typically more tolerant than others in the state. Gay and lesbian politicians are largely confined to a single political party. Gay Republicans face an extremely difficult time, and the few gay GOP elected officials who have emerged seldom last, most leaving power either through primary challenges or retirement in the face of pressure. There has never been an openly gay President, U.S. Senator, Cabinet level appointee, or Justice of the United States Supreme Court. 48. The percentages of gay and lesbian representation at the local level are lower still.

In 2010, the Gay and Lesbian Leadership Institute identified 288 local elected gay or lesbian political officials serving on city councils, county commissions, school boards, and other local offices (http://www.glli.org/out_officials), which is an insignificant fraction of the total number of elected local officials. Over a decade ago, the Census Bureau reported that the number of elected officials nationwide was slightly over 511,000. Subtracting members of Congress and state legislatures, about whom I just reported, that leaves somewhat over 500,000 city, county, school, and local board officials, and only 288 (or .05%) were identified as openly gay. These officials are also concentrated in the coastal states and in Illinois. Some states have no openlygay elected officials at all, and many more, including Nevada, have just a very small handful. B. 49. Factors Contributing to Political Powerlessness Numerous factors, often working in combination or in mutually reinforcing ways,

contribute to the political powerlessness of gay men and lesbians. Furthermore, many of these

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factors—including public and political hostility, prejudice, censorship, and religious and moral condemnation—impose a political disability on gays and lesbians not suffered by groups of comparable size and geographic dispersion. I begin this section with demographic considerations and then discuss other, relational factors pointing to a degree of powerlessness that today is unique to gays and lesbians. (1) 50. Small Population Size and Geographic Dispersion

The simplest way to secure political representation and exercise some degree of

influence over the political process is through numerical strength. The population strength of gay men and lesbians is not close to being sufficient to obtain electoral predominance in a single jurisdiction, let alone change the composition of a legislature or Congress. There are no congressional districts with a majority population of gay and lesbian Americans. There are no municipalities of any size with a majority gay and lesbian population. Even in broadly identified gay-friendly communities, often places where migration to established lesbian and gay communities has significantly increased the gay population above the national average, gays and lesbians fail to reach majority status. A fair estimation of population suggests that gay men and lesbians have sufficient numbers to determine (or substantially influence) the outcome of only a few city council or county board seats, or state legislative districts, nationwide. At any level of aggregation above the precinct or neighborhood, there is no place with a gay majority. (2) 51. Effect of HIV/AIDS Epidemic

The AIDS epidemic has set back the gay community’s potential for political

action, in ways that are both obvious and not obvious. Through 2005, the Centers for Disease Control reported that just over 300,000 MSMs (a CDC term for men who have sex with men) had died of HIV/AIDS. Another 217,000 were living with AIDS. The loss of 300,000 potential voters, organizers, and leaders is a profound setback to a community whose population starts as a fairly small share of the society. Harder to calculate are the lost financial contributions to the political efforts of gay men and lesbians as a consequence of this epidemic. Gay men and lesbians have both raised substantial amounts of money for HIV-related research and social services, diverting resources that could otherwise be used to fight discrimination. Further, gay net

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wealth is negatively impacted by the loss of income on the part of those who have died, and the partial loss of income and expenditures on healthcare from those still living with the disease. Some political observers suggest that a decade or more of gay activism was lost to the cause of gay equality as gay men and lesbians turned their attention to the more immediate threat of the epidemic. While gay men and lesbians do not have the resources—reliable allies, elected officials, votes, dollars, and organizational capacity—to be politically powerful, they have been further disadvantaged by the fact that HIV destroyed such a large segment of the community and consumed such a large portion of its resources. In addition to the direct resource and political costs, AIDS offered heterosexuals a new reason to stigmatize gay people and same-sex relations, and to resist political change that would have advanced gay equality. (3) 52. Violence

A crime can be classified as a hate crime when the victim is targeted because of

his or her identity—generally race, ethnicity, religious identity, gender, sexual orientation, or disability status. Hate crimes are unique in that the effects of the crime are understood—indeed intended—to reach beyond the person of the actual victim. The crime is best understood as an expression of animus toward an entire group, and is an attempt to intimidate other members of that group or otherwise constrain their future behavior. For example, racially motivated hate crimes against individual target-group-members can simultaneously express racial prejudice toward the individual, an entire group, and intimidate other group members from patronizing businesses, moving to neighborhoods, enrolling in schools, or otherwise exercising their personal liberties. 53. Though broad federal hate crimes protections for gays and lesbians came into

existence only recently, the FBI has collected data on hate crimes committed on the basis of perceived sexual orientation for a number of years, at least from jurisdictions that have chosen to report them, and the numbers are substantial. In the last year for which statistics have been published, 2009, the total number of hate crime incidents was 6,604, and 1,482 (17.8%) of those were on the basis of sexual orientation. In terms of single groups, only African Americans endured more incidents, and since they are roughly three times the population share as gays and

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lesbians, the likelihood that any given gay or lesbian citizen experiences an attack (that is, the per capita number of attacks) is considerably higher. 54. Reported hate crime incidents range from simple assault to murder. According

to the FBI’s statistics, in 2008, 73 percent of all hate crimes committed against gays and lesbians included an act of violence; 71 percent of all hate-motivated murders in the United States were of gay men and lesbians; and 55 percent of all hate-motivated rapes were against gays and lesbians. 55. FBI Hate Crimes reports for 2009 show that gay men, along with Jewish

Americans, are the most likely to be victimized by a bias crime. The Southern Poverty Law Center (“SPLC” ) also suggests that steps forward in the cause of gay and lesbian equality seem to be associated with a subsequent surge in antigay violence, pointing to data immediately in the wake of the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003), in which the Court struck down Texas’ sodomy law. The intimidation effect of hate crimes serves to undermine the mobilization of gays and lesbians and their allies and to limit their free exercise of simple economic and social liberties. 56. Recent years show no discernible decline in bias crimes against gays and lesbians.

FBI statistics reporting the number of hate crimes against specific groups shows that anti-gay acts were as frequent in 2009 as they were in 2003. (4) 57. Invisibility

A unique aspect of gay and lesbian identity that distinguishes gays and lesbians

from other minority groups—to their political disadvantage—is their relative invisibility. The scholarship on passing and self-identification suggests that members of repressed or targeted groups who have the ability to pass unobserved in the majority population may choose to do so if the costs of self-identification, in the form of family disapproval, physical threat, discrimination, and their consequences, can be avoided. While this strategy avoids some risks of identification, passing itself has a personal and a political cost. 58. The unwillingness to identify has several important implications for the question

of whether gay men and lesbians can meaningfully or effectively act on their own behalf

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politically. While not a panacea, social contact with gay men and lesbians is generally associated with more sympathetic policy preferences. Invisibility undermines community support. 59. Mobilization levels among gay men and lesbians is lower than other groups but

is erroneously perceived to be higher. Mobilization can reasonably be understood to be an act of self-identification, so those choosing to pass have foreclosed visible political action. 60. Since not all gay men and lesbians come out, the percentage of the gay and

lesbian population that is mobilized seems higher than it really is. Likewise, since those gay and lesbian citizens who choose to self-identify are those whose economic and social position in society is more secure—thereby lessening the risks of coming out—the resulting self-selection bias results in a misperception of gays and lesbians as better educated, of higher income, and otherwise “privileged.” This leads the public to believe—mistakenly—that gay men and lesbians do not need of certain protections. 61. The public perception that gay men and lesbians are better educated or have

higher incomes is not accurate. Statistically, gays and lesbians do not have higher levels of income and, when all gay men and lesbians are considered rather than only the self-identified, are no better educated then the public at-large. My analysis of the 2004 National Exit Polls demonstrates no difference between heterosexual voters and gay and lesbian voters on income and education. 62. Opponents characterize the efforts of gay men and lesbians to gain statutory

protection as both unjustified and transgressive. Moreover, the public incorrectly perceives that gay men and lesbians are more privileged than they actually are. This misperception both mobilizes opponents and encourages complacency by potential allies. 63. In addition, the fact that sexual orientation is not directly visible may reduce the

group’s ability to attract allies. Potential heterosexual allies may reasonably fear being misidentified as gay or lesbian, reducing the chance that they will mobilize on behalf of gays and lesbians. The National Coalition of Anti-Violence Programs reported in 2008 that 9% of hatecrimes reported to their participating agencies on the basis of perceived sexual orientation victimize heterosexuals misidentified as gay or lesbian.

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64.

Finally, invisibility exacerbates the problem of geographic and social dispersion,

making it more difficult for gay men and lesbians to find each other and mobilize politically. (5) 65. Censorship

In a variety of ways, gay men and lesbians are pressured to remain invisible, and in

several contexts, discussion of gay people and their relationships is prohibited or regulated. Examples include the military’s long-standing and only recently repealed “Don’t Ask, Don’t Tell” policy; legislation that prevented the National Endowment of the Arts from funding any art depicting homoeroticism; rules that have prohibited federally funded AIDS education materials from “promoting” homosexuality and requiring educators to advocate for abstinence from extramarital sex, including same-sex couples’ intimacy; and efforts in several states to forbid the mention of homosexuality in school health classes, or mandate the association of the term with descriptors suggesting that it is not acceptable. This year, Tennessee considered legislation banning the mention or discussion of homosexuality in primary grades, and Missouri has considered a similar bill. And, Arizona, for example, prohibits any mention that same-sex intimacy could be made “safe.” (6) 66. Public Hostility and Prejudice

Gay men and lesbians face severe hostility from non-gay citizens in many parts of

the country, and opinion data suggest that they are held in considerably lower regard than many groups currently receiving the protection of heightened scrutiny from the courts. Such low public regard makes it difficult for gay people to achieve significant political progress, implicitly justifies legislative and electoral actions against gay men and lesbians, and severely hampers their ability to attract donors, allies, coalition partners, or even public sympathy. 67. In each national election year, the American National Election Study (available at

electionstudies.org or the Inter-university Consortium for Political and Social Research website) asks a representative sample of American citizens to gauge their “warmness” toward a particular group. Political scientists call this instrument a “feeling thermometer” and the scale of each ranges from 0 to 100, with 100 indicating strong warmness/fondness/positive views. 68. For Hispanics, approximately 40% of respondents rated their warmness at 50

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(midpoint) or less, and the average temperature was 65.2 (std.dev.21.0). For African Americans, only 33% of respondents were at or below 50, and the mean temperature was 68.76 (std.dev. 20.2). For Catholics, 37% were at or below the mid-point and the mean temperature was 67.3 (std.dev 19.9), and for Jews, 43.9% of respondents were at or below the mid-point and the mean warmth was 65.0 (std.dev.19.3). What is revealing about these summary numbers is their similarity. They do vary, of course, but the percentage below the mid-point all group between 33 and 43.9%, the means of each group is between 65 and 69 degrees on the “thermometer,” and the standard deviations (a statistical score that calculates how spread apart the responses are around the mean) are between 19 and 20, indicating majority positive perception of each of these groups. 69. By contrast, gay men and lesbians fare far worse. Fully 65.4% of respondents

rated gays at or below the mid-point of 50 and the mean temperature response was 49.4 (std.dev 27.7), indicating that a majority of respondents do not perceive gay men and lesbians positively. Almost two thirds of the respondents rate gays and lesbians at or below the mid-point, which is almost twice that for African Americans and substantially higher than for the other groups. The mean sentiment towards gay men and lesbians is 16 points lower than for Jews and Hispanics, and 19 points lower than for African Americans. The standard deviation is also instructive, since its size (almost half again larger than for the other groups) illustrates the level of polarization in sentiment about gay men and lesbians. /// /// /// /// /// /// /// /// /// ///
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70.

The following chart is illustrative of this point:

71.

The trend in “warmness” toward gay men and lesbians has been

positive over the last several decades (as it has, in fact, for many groups in society). Notwithstanding that trend, the relative placement of gay men and lesbians vis-à-vis other “outgroups” in society suggest that public esteem remains a significant obstacle to political progress. By any estimation, the public is less fond of gay and lesbian Americans than racial and ethnic minorities and religious groups. In fact, the other groups with comparable levels of coolness include Muslims (mean=50.3), atheists (mean=41), and undocumented aliens (mean=39.3). It is revealing that 13.4% of respondents gave gay men and lesbians a score of zero, a percentage exceeded only by scores for undocumented immigrants (15.4%) and atheists (18.6%). (7) 72. Political and Social Hostility

Gay men and lesbians face outspoken denunciation by elected officials in a

manner that would be unthinkable if directed toward almost any other social group. Hostility by

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public officials is often directly mirrored in the population. Furthermore, its public nature, even when articulated by only a small segment of office-holders and officials, serves as a signal to the broader population that these discriminatory attitudes are “acceptable” or reasonable within the bounds of mainstream political discourse. 73. Gay men and lesbians have been described by a sitting U.S. Senator as “the

greatest threat to our freedom that we face today.” Another sitting senator, during his successful campaign, openly called for gay men and lesbians to be banned from the classroom, a claim he repeated last year at a public rally. A third senator compared same-sex marriage to marrying “a box turtle.” He was subsequently reelected with a large margin. Same-sex intimacy has been described by a sitting senator as morally equivalent to incest and bestiality. In 2010, the GOP nominee for governor of New York responded to a question about marriage equality for same-sex couples by saying that “we should stop pandering to pornographers and perverts.…” The social and political disadvantage that flows from these very public and derisive comments is palpable. 74. While there may be pockets of tolerance here or there at the state and local levels,

and occasionally successful gay or lesbian candidates, in large swaths of the nation, political condemnations of gay men and lesbians are not electorally costly and may even be used to gain electoral support. It is difficult to identify many cases where an elected official was so damaged by holding anti-gay positions that he or she lost public office on this basis, but there are countless cases across the country where candidates felt advantaged by taking a particularly harsh anti-gay viewpoint. In part, this is a consequence of the partisan and geographic distribution of views and the nature of our legislative representation regime, but in part this is also a reflection of the fact that pro-gay policies are a very low priority even among “allies” in the population who hold generally positive views. Public contempt extends beyond elected officials to prominent national religious leaders, who command the attention of political leaders as well as significant numbers of the electorate. (8) 75. Unreliable Allies

The structure of the American party system is such that the path to pro-LGBT

equality policy change lies almost exclusively through the actions of one party. The increasing

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power of evangelical Christians and self-styled “Tea Party” advocates in the GOP has shifted this party’s social policy further to the right and all but eliminated its once sizable tradition of libertarianism. Many within the Republican Party in office (and the national Republican platform) are openly hostile to gay and lesbian rights. The nearly complete disinterest of one party severely disadvantages gay men and lesbians, since gay men and lesbians can thus be understood as “captured” by the Democratic Party, that is, unlikely to bolt from the party or abstain from voting for it in large numbers. Under these circumstances, the capturing party can take the political support of the group for granted. 76. Although the Democratic Party is more supportive in its rhetoric, and the

Democratic platform speaks favorably regarding equality for lesbians and gay men, Democrats have repeatedly shrunk from any extension of rights to gay men and lesbians at the federal level. Democrats controlled the White House from 1993 to 2001, and the Congress until 1994 and from 2006 to 2010. Nevertheless, nondiscrimination statutes and federal recognition of statesanctioned marriages between same-sex couples remain undelivered. Again, “Don’t Ask, Don’t Tell” was passed in a Democratically controlled Congress, and both it and the federal “Defense of Marriage Act” were signed into law by a Democratic president. 77. This is not to say that gay men and lesbians have no allies at all. In recent months,

the governors of New York, Maryland and Washington signed marriage equality bills into law. In the case of Washington State, the governor was not seeking reelection, but both other governors have future political aspirations. Their assistance weighs positively on my assessment of political resources of gays and lesbians. Their support, however, must be weighed against the vast majority of state governors, however, who offer no such support—costly or cost-free—or offer direct opposition to the political and social aspirations of gays and lesbians. 78. Gay men and lesbians are disadvantaged by the circumstance of party capture.

The almost complete indifference or hostility of Republican elected officials to the political interest of gay men and lesbians largely confines their political opportunities for support and public office to a single party, the Democrats. Democratic leaders, mindful of this complete exclusion, are thus free to neglect and even occasionally set back gay and lesbian interests, secure

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in the knowledge that the other party does not represent a credible threat for peeling away voters. Gay men and lesbians may be disenchanted with the quality and intensity of representation they appear to receive from Democratic office-holders but, in a practical sense, have no alternative. Taken together, Republican hostility and Democratic capture significantly weaken the political voice of lesbians and gay men. (9) 79. Moral and Political Condemnation

While the pluralist framework envisions shifting majorities and rotation in office,

perceived Old Testament prohibitions of homosexuality serve to create, in many of America’s religious communities, a permanent majority that believes same-sex intimacy is sinful and immoral, and that it should be condemned and discouraged. The General Social Survey (http://www.norc.org/GSS+Website/) regularly asks a representative sample of Americans to evaluate whether homosexual relations are “wrong.” In 2008, those data show that 51.5% of Americans still report that sex between two persons of the same sex is “always wrong,” while another 10.3% agree that it is “sometimes” or “almost always” wrong. Moreover, the shift in the direction of tolerance is neither large nor rapid. A decade ago, a module from the same survey showed comparable numbers, at 56% and 11.8% respectively. (10) 80. Powerful, Numerous, and Well-Funded Opposition

The moral condemnation of homosexual acts fuels and supports political

opposition to protections and benefits for gays and lesbians. Campbell and Robinson (2007) found that opposition to marriages between same-sex couples united leadership and core believers across religious traditions. Similarly, the San Francisco Chronicle reported that the campaign in favor of Proposition 8 was conceived and funded by a cooperative effort of the Roman Catholic Archbishop of San Francisco and the senior leadership of the Mormon Church. These reports were supported by documentary evidence and testimony introduced in the Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), trial in the Northern District of California, in particular evidence of interstate coordination and fundraising within and between global religious organizations. The biennial campaigns to pass Nevada’s constitutional amendment prohibiting marriage for same-sex couples also received significant support from a

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number of churches, including the Mormon Church, which used its infrastructure to organize voters and solicit campaign donations from church members. Churches provide a well-funded, widely spread, untaxed medium in which individuals opposed to gay and lesbian policy goals can disseminate political messages and campaign materials, as well as engage in fundraising. Moreover, national religious organizations like Focus on the Family, the Traditional Values Coalition, the Family Research Council, the National Organization for Marriage and other groups provide a national network for pressuring elected officials, fundraising, message testing, media dissemination and publication, mobilization, and coordination across states and jurisdictions. This nationwide coordination, for example, explains how 13 statewide initiatives concerning marriage for people in same-sex relationships appeared in a single year, 2004. Similarly, the coordination of campaigns from California to Maine illustrates the national nature of these efforts. Cahill (2007) documents the vast economic resources of these organizations and their willingness to provide them to political efforts to prevent or reverse rights, benefits, or protections for gay men and lesbians. Gay men and lesbians lack the political resources—including voting numbers, cash, elected officials from the group, reliable allies, reach, or a favorable political opportunity structure—to counter this kind of committed, organized opposition to their interests. 81. When scientific and learned societies have concluded that there is no evidentiary

or scientific bases to justify anti-gay biases or policies—whether with respect to same-sex relationships or in evaluating gay men and lesbians as parents, as healthy, productive members of society, and so forth—forces opposed to their political and social incorporation have formed splinter or shadow organizations designed to give the appearance of scientific approval to positions without broad scientific and professional support. For example, the American Psychological Association long ago removed homosexuality from their diagnostic manual as a psychologically disordered behavior, as the consensus in psychological research is that there is little or no psycho-pathology associated with homosexual identity. Nevertheless, anti-gay forces have founded the National Association of Research and Therapy for Homosexuality (NARTH), which promotes efforts to change sexual orientation even though virtually all major mental health professional organizations have adopted policy statements warning professionals and the public

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about these treatments. Likewise, the American Academy of Pediatrics has been publicly supportive of gay and lesbian parenting, and states on their website that “A growing body of scientific literature reveals that children who grow up with one or two gay and/or lesbian parents will develop emotionally, cognitively, socially, and sexually as well as children whose parents are heterosexual.” In response, anti-gay activists have established the “American College of Pediatricians” which, despite their name, is actually an anti-gay organization with a fraction of the Academy’s membership and no scientific or professional standing. These non-mainstream organizations, with names designed to evoke a false sense of scientific authority, exist principally to discredit the scientific consensus regarding gay people, unquestionably weakening their political power. V. Comparative Political Powerlessness 82. Gays and lesbians suffer an extreme degree of political vulnerability and

powerlessness compared to most other groups in society. Even groups that have obtained the protection of heightened scrutiny from the Supreme Court possessed greater political power at the time those decisions were handed down than gays and lesbians do today. A. 83. Gender When the Supreme Court held that sex was a quasi-suspect classification in the

1970s, they were in a far superior political position compared to that held by lesbians and gays today. Women are and were a majority of the population and, if they so choose, could theoretically determine most political outcomes. While women do not have the same level of political cohesion as many other groups, so that in many cases their majority status has not proved decisive, the magnitude of their numbers is a source of potential power that politicians cannot ignore. And in fact, by the time of the recognition of sex as a quasi-suspect classification by the Court, women had achieved important victories in the political process, including the 1963 Equal Pay Act, coverage in the 1964 Civil Rights Act and its subsequent amendments, and specific statutory and constitutional protection in several states. 84. Women have a number of other characteristics that enhanced their ability to

organize and act politically when compared with gays and lesbians. While sexism certainly

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existed (and still exists), and political activism could be costly, identity as a woman was not socially controversial, did not attract familial scorn, and did not bar one from such a large range of social institutions, though some institutions were exclusively male. Women could freely identify one another, gather, coordinate, and act largely free of fear of repressive tactics. Both political parties sought the support of women. B. 85. Race Immediately in the wake of the Civil War, three amendments to the federal

constitution established de jure legal equality for African-Americans and officially barred states from violating equal protection. Though this guarantee of equality had seldom been meaningfully enforced, it was nonetheless a de jure status superior to that now held by lesbians and gay men. In addition, as early as 1941, President Roosevelt issued Executive Order 8802 prohibiting race discrimination in contracting and employment in companies doing business with the U.S. In April of this year, President Obama declined to sign an executive order barring sexual orientation discrimination among federal contractors. Through court action and the social movement of the 1950s and 1960s, African Americans (and later Latinos) achieved a rollback of Jim Crow segregation laws and established a statutory regime of equality in employment, education, and housing. Again, this was more promise than practice, but it was a statutory circumstance superior to that of lesbians and gay men today. 86. In the 1940s and 1950s, African Americans and other racial and ethnic minorities

had similar disadvantages to gays in terms of resources and social sanction, but with far greater numbers (and in some instances majorities), they have been able to claim a more meaningful share of political representation and policy responsiveness. Even before the passage of the Civil Rights Act of 1964 and Voting Rights Act of 1965, there were 5 black members of Congress and over 100 elected officials nationwide. Today, 73 people of color serve in the House of Representatives. African Americans, Latinos, and Asian Americans have been elected governors and big city mayors. They form outright majorities in dozens of jurisdictions and approximately 60 House districts through the last census. Rather than serve as an impediment, most (though admittedly not all) religious institutions express support for the principle of racial equality and the

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church in minority communities, rather than serving as an impediment to political progress, is a locus for identification and mobilization.

Signed under penalty of perjury under the laws of the United States this 5th day of September, 2012.

__________________________________ Gary M. Segura, Ph.D.

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Exhibit A

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Curriculum Vitae Gary Michael Segura
Department of Political Science, Stanford University 100 Encina Hall West Stanford, CA 94305-6044 650-723-3583 E-mail: segura@stanford.edu

EDUCATIONAL AND PROFESSIONAL HISTORY
Education: 1985-1986 & 1988-1992 University of Illinois at Urbana-Champaign Ph.D., Department of Political Science, 1992. A.M., Department of Political Science, 1989. Loyola University of the South, New Orleans, LA B.A., Magna Cum Laude, Presidential Scholar Department of Political Science, 1985.

1/8/12

1981-1985

Academic Experience: 2008-present Professor, Department of Political Science, and Chair of Chicana/o Studies, Center for Comparative Studies in Race and Ethnicity, Stanford University Professor, Department of Political Science, and since 2006, Director, University of Washington Institute for the Study of Ethnicity, Race and Sexuality, University of Washington. Associate Professor, Department of Political Science, University of Washington. Associate Professor, Department of Political Science, University of Iowa. Associate Professor, School Politics and Economics, Claremont Graduate University. Assistant Professor, School Politics and Economics, Claremont Graduate University. Assistant Professor, Department of Political Science, University of California, Davis. Acting Assistant Professor, Department of Political Science, University of California, Davis.

2007-2008

2005-2007 2001-2005 1999-2001 1996-1999 1992-1996 1991-1992

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SCHOLARSHIP
Publications Books: Latinos in the New Millennium: An Almanac of Opinion, Behavior, and Policy Preferences. 2012. Cambridge: Cambridge University Press. With Luis Fraga, John Garcia, Rodney Hero, Michael JonesCorrea and Valerie Martinez-Ebers. "The Future is Ours:" Minority Politics, Political Behavior, and the Multiracial Era of American Politics. 2011. Washington, DC: Congressional Quarterly Press. With Shaun Bowler. Latino Lives in America: Making It Home. 2010. Philadelphia: Temple University Press. With Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez-Ebers. Diversity In Democracy: Minority Representation in the United States. 2005. Charlottesville: University of Virginia Press. Edited with Shaun Bowler. Refereed Articles: “Latino Public Opinion and Realigning the American Electorate.” 2012. Dædalus. Forthcoming. “Who’s the Party of the Working Class? Economic Populism and the Public’s Beliefs about American Political Parties.” Forthcoming, June, 2012. Political Behavior. With Stephen P. Nicholson. “Assimilation, Incorporation, and Ethnic Identity in Understanding Latino Electoral and NonElectoral Political Participation.” 2011. Political Research Quarterly, 64, (1): 172-184. With Wayne Santoro. “Hope, Tropes, and Dopes: Hispanic and White Racial Animus in the 2008 Election.” 2010. Presidential Studies Quarterly, 40 (3): 497- 514. With Ali Valenzuela. “Should They ‘Dance with the One Who Brung ‘Em?’ Latinos and the 2008 Presidential Election.” 2008. PS: Political Science and Politics, 41 (4):753-760. With Matt A. Barreto, Luis R. Fraga, Sylvia Manzano, and Valerie Martinez-Ebers. “Race and the Recall: Racial Polarization in the California Recall Election.” 2008. With Luis R. Fraga. American Journal of Political Science 52 (2): 421-435.

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“Commentary on ‘Citizens by Choice Voters by Necessity: Long Term Patterns in Political Mobilization by Naturalized Latino Voters’.” With Adrian D. Pantoja and Ricardo Ramirez. 2008. Political Research Quarterly, 61 (1): 50-52 “All Politics are Still Local: the Iraq War and the 2006 Midterm Election.” 2008. With Scott S. Gartner. PS: Political Science and Politics, 41(1): 95-100. “What Goes Around, Comes Around: Race, Blowback, and the Louisiana Elections of 2002 and 2003.” 2006. With Christina Bejarano, graduate student. Political Research Quarterly, 60(2): 328337. “Su Casa Es Nuestra Casa: Latino Politics Research and the Development of American Political Science.” American Political Science Review, 100(4): 515-522. 2006. With Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez-Ebers. “Comparative Ethnic Politics in the United States: Beyond Black and White.” Annual Review of Political Science, 9: 375-395. 2006. With Helena Alves Rodrigues. “Immigration and National Identity: An Introduction to a Symposium on Immigration and National Identity.” Perspectives on Politics, 4(2): 277-278. 2006. “Culture Clash? Contesting Notions of American Identity and the Effects of Latin American Immigration.” Perspectives on Politics, 4(2): 279-287. 2006. With Luis Fraga. “Explaining the Latino Vote: Issue Voting among Latinos in the 2000 Presidential Election.” Political Research Quarterly, 59(2): 259-271. 2006. With Stephen P. Nicholson and Adrian D. Pantoja. “Earthquakes and Aftershocks: Tracking Partisan Identification amid California's Changing Political Environment.” American Journal of Political Science, 50(1): 146-159. 2006. With Stephen P. Nicholson and Shaun Bowler. “A Symposium on the Politics of Same-Sex Marriage: An Introduction and Commentary.” PS: Political Science and Politics, 38 (2). April 2005. Served as Symposium Editor. “Racial/Ethnic Group Attitudes Toward Environmental Protection in California: Is “Environmentalism” Still a White Phenomenon?” Political Research Quarterly 58(3):435-448. 2005. With Matthew Whittaker (graduate student) and Shaun Bowler. “War and the Fate of Legislators: War Casualties, Policy Positions, and U.S. Senate Elections During Vietnam.” Political Research Quarterly, 53 (3):467-477. 2004. With Scott S. Gartner and Bethany A. Barratt. “The Mobilizing Effect of Majority-Minority Districts on Latino Turnout.” American Political Science Review, 98(1): 65-76. 2004. With Matt Barreto and Nathan D. Woods. “Fear and Loathing in California: Contextual Threat and Political Sophistication Among Latino Voters.” Political Behavior, 25 (3): 265-286. 2003. With Adrian D. Pantoja.

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“Does Ethnicity Matter? Descriptive Representation in the Statehouse and Political Alienation Among Latinos.” Social Science Quarterly, 84(2): 441-460. 2003. With Adrian D. Pantoja. “The Paradox of Presidential Approval: The Mixed Blessing of Divided Government to Presidential Popularity.” Journal of Politics, 64 (3): 701-720. 2002. With Stephen P. Nicholson and Nathan D. Woods, graduate student. “Citizens by Choice, Voters by Necessity: Patterns in Political Mobilization by Naturalized Latinos.” Political Research Quarterly, 54 (4): 729-750. 2001. With Adrian D. Pantoja and Ricardo Ramirez. “Race, Casualties and Opinion in the Vietnam War.” Journal of Politics, 62 (1): 115-146. 2000. With Scott S. Gartner. “Midterm Elections and Divided Government: An Information-Driven Theory of Electoral Volatility.” Political Research Quarterly, 52 (3): 609-630. 1999. With Stephen P. Nicholson. “War, Casualties, and Public Opinion.” Journal of Conflict Resolution, 42: 278-300, 1998. With Scott S. Gartner. “Dynamics of Latino Partisanship in California: Immigration, Issue Salience, and Their Implications.” Harvard Journal of Hispanic Politics, 10: 62-80, 1997. With Dennis Falcon, graduate student, and Harry Pachon. “All Politics are Local: The Effects of Local Losses on Individual Attitudes Towards War.” Journal of Conflict Resolution, 41: 669-694, 1997. With Scott S. Gartner and Michael Wilkening, graduate student. “Appearances Can Be Deceptive: Self-Selection, Social Group Identification, and Political Mobilization.” Rationality and Society, 9 (2): 131-161, 1997. With Scott S. Gartner. “Cross National Variation in Political Sophistication of Individuals: Capability or Choice?” Journal of Politics, 59 (1): 126-147, 1997. With Stacy B. Gordon, graduate student. “Sequential Choices and Partisan Transitions in U.S. Senate Delegations: 1972-1988.” Journal of Politics, 57(1):86-100, 1995. With Stephen P. Nicholson, graduate student. “Endogeneity, Exogeneity, Time, and Space in Political Representation.” Legislative Studies Quarterly, 20(1): 3-22, 1995. With James H. Kuklinski. Book Chapters and Invited Articles: “The Browning of America.” Democracy Journal, June 2012. “Restarting History.” In Grusky, David et al., editors, Occupy the Future. Cambridge MA: MIT Press. 2012.

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“Latino Electoral Participation.” With Jeanette Carmen Bustamante. For the Encyclopedia of Latinos and Latinas in the United States, 2nd Edition, Oxford University Press. 2012. “The Efficacy and Alienation of Juan Q. Public: The Immigration Marches and Orientations Toward American Political Institutions.” In Bloemraad, Irene and Kim Voss, (eds.), Rallying for Immigrant Rights. Berkeley: University of California Press, 2011. With Francisco Pedraza and Shaun Bowler. “The Immigration Aftermath: Latinos, Latino Immigrants, and American National Identity.” Forthcoming in David Coates and Peter Siavelis (eds), Getting Immigration Right: What Every American Needs to Know. 2009. Dulles VA: Potomac Books. With Luis R. Fraga. “Hearing Footsteps: Latino Population Growth and Anticipated—but not Quite Present—Political Effects in Emerging Communities.” In de la Garza, Rodolfo O., Louis DeSipio, and David L. Leal (eds.). Beyond the Barrio: Latinos in the 2004 Elections. 2008. South Bend, IN: University of Notre Dame Press. With Christina Bejarano. “An Evaluation of the Electoral and Behavioral Impacts of Majority-Minority Districts.” In Levi, Margaret, Jack Knight, James Johnson, and Susan Stokes, eds. Designing Democratic Government. 2008. New York: Russell Sage Foundation. With David I. Lublin. “Majority-Minority Districts, Co-ethnic Candidates, and Mobilization Effects.” In Henderson, Ana, Voting Rights Act Reauthorization of 2006: Perspectives on Democracy, Participation, and Power. 2007. Berkeley: Institute for Governmental Studies Public Policy Press. With Nathan D. Woods. “A Place at the Lunch Counter: Latinos, African-Americans, and the Dynamics of American Race Politics.” In Meier, Kenneth, Rodolfo Espino, and David Leal, eds., Latino Politics: Identity, Mobilization, and Representation. 2007. Charlottesville: University of Virginia Press. With Helena A. Rodrigues. “Latino Political Participation.” With Helena A. Rodrigues. For the Encyclopedia of Latinos and Latinas in the United States, Oxford University Press. 2005. “Social, Political and Institutional Context and the Representation of Minority Americans.” In Segura, Gary M. and Shaun Bowler, eds. Diversity In Democracy: Minority Representation in the United States. 2005. Charlottesville: University of Virginia Press. With Shaun Bowler. “Agenda Change and the Politics of Latino Partisan Identification.” In Segura, Gary M. and Shaun Bowler, eds. Diversity In Democracy: Minority Representation in the United States. 2005. Charlottesville: University of Virginia Press. With Stephen P. Nicholson. “Unquestioned Influence: Latinos and the 2000 Election in California.” In Rodolfo de la Garza and Louis Desipio, eds., Muted Voices: Latino Politics in the 2000 Election, New York: Rowman and Littlefield. 2004. With Luis Fraga and Ricardo Ramirez. “Targets of Opportunity: California's Blanket Primary and the Political Representation of Latinos.” In Cain, Bruce E. and Elisabeth R. Gerber, eds., Voting at the Political Fault Line: California's 5 App. 000288 - Pls.' SJ Opp'n, Kitchen v. Herbert
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Experiment with the Blanket Primary, 248-269. 2002. Berkeley: University of California Press. With Nathan D. Woods, graduate student. “Hispanics, Social Capital and Civic Engagement.” National Civic Review 90 (1): 85-96. 2001. With Harry Pachon and Nathan D. Woods, graduate student. “Institutions Matter: Local Electoral Laws, Gay and Lesbian Representation, and Coalition Building Across Minority Communities.” In Ellen Riggle and Barry Tadlock, eds., Gays and Lesbians in the Democratic Process, 220-241. 1999. New York: Columbia University Press Book Review: Review. Who Are We? By Samuel Huntington. Perspectives on Politics, 3(3): 640-642. Review. Congress and the Rent Seeking Society, by Glenn Parker, Journal of Politics, 59: 591-593, 1997. Other Publications: “An Update on the Status of Latinos y Latinas in Political Science: What the Profession Should be Doing.” PS: Political Science and Politics, XXXIII (4): 899-903, December, 2000. With Valerie Martinez-Ebers, Manuel Avalos, Carol Hardy-Fanta, Linda Lopez, and Ronald Schmidt, Sr. Under Review: “Behavioral and Attitudinal Components of Immigrant Political Incorporation.” “Democratic Accountability, the Separation of Powers, and Government Approval: How Party Government Shapes Approval of American National Institutions.” With Stephen P. Nicholson. “Race Matters: Latino Racial Identities and Political Beliefs.” With Stephen P. Nicholson and Adrian Pantoja. Awards: 2010 2007 2005 2004 Elected Fellow, American Academy of Arts and Sciences Midwest Latino Caucus Best Paper Award for the Best Paper Presented at the Annual Meeting, Midwest Political Science Association Adaljiza Sosa-Riddell Award for Exemplary Mentoring of Latino/a Faculty, American Political Science Association, Committee on the Status of Latinos y Latinas. Charles Redd Award for Best Paper on the Politics of the American West presented at the 2003 Annual Meeting, Western Political Science Association. 6 App. 000289 - Pls.' SJ Opp'n, Kitchen v. Herbert
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External Grants and Fellowships: 2009 National Science Foundation. “American National Election Studies, 2009-2013.” $10,000,000 with Simon Jackman and Vincent Hutchings (Jointly with the University of Michigan). National Science Foundation. “Spanish Translation and Hispanic Over-sample: American National Election Study.” $722,657 with Matt A. Barreto. National Science Foundation. “Supplemental Grant: Contextual Variation and Latino Political Life.” $33,754. Latino Policy Coalition. “Understanding Latino Policy Challenges in 21st Century America.” $40,000 with Matt A. Barreto. National Science Foundation. “Contextual Variation in Latino Political Life.” $173,600, With Michael Jones-Correa, on behalf of the Latino National Survey team. Divided between University of Washington and Cornell University.

2007 2006 2006 2005

2002-2005 Private Foundation Grants for the Latino National Survey. The Latino National Survey is a collaborative project with Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez. The project combines a 40-minute survey of 8600 Latino residents of the United States with an extensive array of contextual and demographic data on place of residence. 2005 2005 2004 2004 2004 2004 2003 2002 2002 Wm. K. Kellogg Foundation. “Latino National Survey.” $100,000 Carnegie Corporation. “Latino Incorporation in a Changing America: The Latino National Survey.” $100,000. Joyce Foundation. “Latino Survey in Illinois and Iowa.” $100,000. Russell Sage Foundation. “Latinos Immigrants in New Receiving Areas.” $150,000. Irvine Foundation. “Latinos in California Survey.” $150,000. Ford Foundation. “Latino National Survey.” $200,000. Ford Foundation. “Public Policy Advocate Outreach for the Latino National Survey.” $30,000. William and Flora Hewlett Foundation. “Latino National Survey Planning Grant.” $125,000. Annie E. Casey Foundation. “Latino National Survey Working Group,” under the auspices of the Inter-University Program in Latino Research. $20,000.

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2000

National Science Foundation, SES-0079056. “The Demographics of Pandora’s Box: An Empirical Investigation of the Determinants of Who Dies in War.” With Scott S. Gartner. Total Grant, $215,750, divided between the two institutions. Haynes Foundation Faculty Fellowship. “The Blanket Primary and Latino Influence in California’s Republican Party.” $10,000 Haynes Foundation Faculty Fellowship. “Demography, Representation, and Institutions in Southern California Governments.” $8000 Public Policy Institute of California. “Latino Representation and Local Electoral Laws in California.” $25,000 Pew Charitable Trusts. “Social Capital, Civic Engagement and Political Participation in Latino Neighborhoods.” With Rodolfo de la Garza and Harry Pachon. $165,000. National Science Foundation, SBR-9511527. “Casualties of War and Politics: American Electoral Politics and the Korean and VietnamWars.” With Scott S. Gartner. $72,000. National Hispanic Scholar Fellowship National Hispanic Scholar Fellowship Harry S. Truman Foundation Fellowship

2000 1999 1997 1996 1995 1989 1988 1983

Recent Internal Grants and Fellowships: 2005 University of Washington’s President’s Diversity Appraisal Implementation Fund. Grant to establish the “Washington Institute for the Study of Ethnicity and Race,” on behalf of the Department of Political Science. March. Obermann Summer Interdisciplinary Research Grant. “Assimilation and Political Incorporation: An Examination of Mexicans, Puerto Ricans, and Cuban Americans.” With Wayne Santoro, Assistant Professor of Sociology, UI, Summer. UI Faculty Scholar Award. Obermann Interdisciplinary Research Semester, “Sex, Politics and Economics.” Fall. UI Career Development Award, awarded for Spring, 2003. Undergraduate Instructional Improvement Grant, “Politics and Homosexuality.”

2003

2002 2002 2002 1994

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Conference Presentations (10 years): “Partisan Deviation, Economic Self-Interest, and the Behavior of High Income Voters.” With Shaun Bowler. Presented at the Annual Meeting of the American Political Science Association, Seattle, WA, September 1-4, 2011. “What They Think Depends on Who You Ask: Methodological Errors in Survey Estimates of Latino Two-Party Vote.” With Matt A. Barreto. Presented at the Annual Meeting of the American Political Science Association, Seattle, WA, September 1-4, 2011. “Minority Political Orientations, Policy Opinions, and American Values.” With Shaun Bowler. Presented at the Annual Meeting of the Western Political Science Association, San Antonio, TX, April 21-23, 2011. “Race Matters: Racial Identity and Party Identification among Latinos.” With Stephen P. Nicholson and Adrian Pantoja. Presented at the Annual Meeting of the Western Political Science Association, San Antonio. TX, April 21-23, 2011. “The Problem with Palo Alto: Partisan Deviation, Economic Self-Interest, and the Behavior of High Income Voters.” With Shaun Bowler. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, March 31-April 3, 2011. “In-Group Identification and Out-Group Attitudes: Latinidad and Relations with Whites and African Americans.” Presented at the Annual Meeting of the Southern Political Science Association, New Orleans, LA, January 6-8, 2011. “Race and the Obama Presidency.” With Matt A. Barreto and Ali Valenzuela. Presented at the Annual Meeting of the American Political Science Association, Washington, DC, September 1-5, 2010. “Everything Jim Crow is New Again: Arizona, Racial Construction, and the Political Ramifications of Immigrant-Bashing for Short-Term Political Gain.” Presented at the Workshop on Inequality, United States Study Centre at the University of Sydney, Australia, June 2010. “Gender Attitudes, Race Differences and Gay Rights: Is Race Really a Key Predictor of Attitudes Towards Homosexuals.” Presented at the Annual Meeting of the Midwest Political Science Association, Chicago IL, April 21-25, 2010. “Do NES Models of Voting Apply to Blacks and Latinos? Results from the 2008 NES Oversamples.” Presented at the Annual Meeting of the Western Political Science Association, San Francisco, CA, March 30-April 3, 2010. With Matt A. Barreto. “Latino Identification in the American Polity: Characteristics and Consequences of Multiple Political Selves.” Presented at the National Conference on Latino Politics, Power, and Policy: Findings from the Latino National Survey. Brown University, Providence, RI, October 24, 2009. “The Black-Brown Divide that Wasn’t: Comparing Latino, Black, and White Voters in the 2008 Election.” With Matt A. Barreto. Presented at the Mershon Center, Ohio State Conference 9 App. 000292 - Pls.' SJ Opp'n, Kitchen v. Herbert
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on the 2008 Election, Columbus, OH, October 2-3, 2009. “Identity Research in Latino Politics.” Presented as part of the APSA Short Course on Latino Politcs at the Annual Meeting of the American Political Science Association, Toronto, ON, September 2-6, 2009. “Who’s the Party of the Working Class? Economic Populism and the Public’s Beliefs about American Political Parties.” With Stephen P. Nicholson. Presented at the Annual Meeting of the American Political Science Association, Boston, MA, August 28-31, 2008. “Revisiting the Politics of Economic Populism: Class, Faith, and Party Images in the United States.” With Stephen P. Nicholson. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 3-6, 2008. “Evaluating a Cost-Driven Theory of Wartime Public Opinion.” With Scott S. Gartner. Presented at the Annual Meeting of the Western Political Science Association, San Diego, CA, March 20-22, 2008. “Calculated Support: Hawks, Doves, Evaluators, and the War in Iraq.” With Scott S. Gartner. Presented at the Annual Meeting of the American Political Science Association, Chicago, IL, Aug 30-Sep. 2, 2007. “Transnational Linkages, Generational Change, and Latino Political Engagement.” Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 12-15, 2007. Winner of the Midwest Latino Caucus’ Best Paper Award for the Best Paper on Latino Politics presented at the Annual Meeting. “The Efficacy and Trust of Juan Q. Public: How the Immigration Marches Reflect Surprising Support for American Institutions of Governance.” With Shaun Bowler and Francisco Pedraza. Presented at the Annual Meeting of the Western Political Science Association, Las Vegas, NV, March 8-10, 2007. “LATINO NATIONAL SURVEY: Rollout Presentation: Coming to Grips with Latino Identity.” Presented at the Annual Meeting of the American Political Science Association, Philadelphia, PA, Aug 31- Sep 3, 2006. “Majority-Minority Districts, Co-ethnic Candidates, and Mobilization Effects.” With Nathan D. Woods. Presented at the University of California, Berkeley, Warren Institute on Civil Rights, Conference, February 9, 2006, Washington, DC. “Divided Government and Public Attitudes Towards Institutions.” With Stephen P. Nicholson. Paper presented at the Annual Meeting of the Southern Political Science Association, Atlanta, GA, January 5-7, 2006. “An Evaluation of the Electoral and Behavioral Impacts of Majority-Minority Districts.” With David I. Lublin. Presented at the Annual Meeting of the American Political Science Association, Washington, DC, August 31-September 4, 2005.

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“Race Matters: Latino Racial Identities and Political Beliefs.” With Stephen P. Nicholson and Adrian Pantoja. Presented at the Annual Meeting of the American Political Science Association, Washington, DC, August 31-September 4, 2005. “Approval of Governmental Institutions and Party Government.” With Stephen P. Nicholson. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 7-10, 2005. “From Radical to Conservative: Civil Unions, Same-sex Marriage, and the Structure of Public Attitudes.” With Ken Cimino. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 7-10, 2005. “A General Theory of War Casualties and Public Opinion.” With Scott S. Gartner. Presented at the Annual Meeting of the Western Political Science Association, Oakland, CA, March 16-19, 2005. “Hearing Footsteps: Latino Population Growth and Anticipated—but not Quite Present—Political Effects in Emerging Communities.” With Christina Bejarano, graduate student. Presented at the University of Texas conference on Latinos in the 2004 Election, February 11-12, 2005. “What Goes Around, Comes Around: Race, Blowback, and the Louisiana Elections of 2002 and 2003.” With Christina Bejarano, graduate student. Presented at the Annual Meeting of the Southern Political Science Association, New Orleans, LA, January 6-8, 2005. “Democratic Accountability, the Separation of Powers, and Divided Government: Explaining Presidential and Congressional Approval.” With Stephen P. Nicholson. Presented at the Annual Meeting of the Southern Political Science Association, New Orleans, LA, January 68, 2005. “Race and the Recall: The Role of Race in the California Recall Election.” With Luis R. Fraga. Presented at the Annual Meeting of the American Political Science Association, Chicago, IL, September 1-5, 2004. “A Place at the Lunch Counter: Latinos, African-Americans, and the Dynamics of American Race Politics.” With Helena A. Rodrigues. Presented at the conference “Latino Politics: The State of the Discipline,” Texas A&M University, College Station, TX, April 30-May1, 2004. “Assimilation, Incorporation, and Ethnic Identity in Understanding Latino Electoral and NonElectoral Political Participation.” With Wayne Santoro. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 15-18, 2004 . “Partisan Gerrymandering and Its Influence on Voter Turnout.” With Matt Barreto and Nathan D, Woods. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 15-18, 2004. “A New Generation of Latino Voices: Identity, Attitudes, and Participation.” With Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez. Presented at the Annual Meeting of the Western Political Science Association, Portland, OR, March 11-14, 2004. 11 App. 000294 - Pls.' SJ Opp'n, Kitchen v. Herbert
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“Earthquakes and Aftershocks: Tracking the Macro-partisan Implications of California's Recent Political Environment.” With Stephen P. Nicholson and Shaun Bowler. Presented at the Annual Meeting of the Western Political Science Association, Portland, OR, March 11-14, 2004. “Environmental Racism and the ‘Action Gap’: Assessing White and Minority Commitment to Environmental Causes.” With Shaun Bowler and Matthew Whittaker. Presented at the Annual Meeting of the Southern Political Science Association, January 8-10, 2004. “Perceptions of Commonality and Shared Interests: Assessing Latino Support for Black-Brown Coalitions.” With Helena Alves Rodrigues. Presented at the Color Lines Conference, Harvard Civil Rights Project, Harvard University, Cambridge, MA, August 31-Sep. 2, 2003. “Attitudinal Underpinnings of Black-Brown Coalitions: Latino Perceptions of Commonality With African-Americans and Anglos,” with Helena Rodrigues. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 3-6, 2003. “Racial/Ethnic Group Attitudes Toward Environmental Protection in California: Is “Environmentalism” Still a White Phenomenon?” With Matthew Whittaker and Shaun Bowler, presented at the Annual Meeting of the Western Political Science Association, Denver, CO, March 27-30, 2003. Winner of the 2003 Charles Redd Award for Best Paper on the Politics of the American West, Western Political Science Association, March 2004. “ Ich bin ein Latino! Sophistication, Symbolism, Heuristics, and Latino Preferences in the 2000 Presidential Election,” with Stephen P. Nicholson and Adrian D. Pantoja, presented at the Annual Meeting of the American Political Science Association, Boston, MA, August 29 – September 1, 2002. “Looking Good…Feeling Good! Assessing Whether Dyadic and Collective Descriptive Representation Enhances Latino Efficacy,” with Stacy Burnett Gordon, prepared for presentation at the Annual Meeting of the American Political Science Association, Boston, MA, August 29 – September 1, 2002. “Descriptive Representation and Political Alienation Among Latino Citizens” with Adrian D. Pantoja, presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 25-27, 2002. “Rest Assured? Estimating the Potential Demobilization Effects of Overlapping Majority-Minority Districts,” with Matt Barreto and Nathan D. Woods, presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 25-27, 2002. “Estimating and Understanding Social Capital and its Political Effects Among Latinos in the United States,” with F. Chris Garcia and Harry Pachon, presented at the Annual Meeting of the Western Political Science Association, Long Beach, CA, March 22-24, 2002. “A Quasi-experimental Estimation of the Effects of Overlapping Majority-Minority Districts on Turnout,” with Matt Barreto and Nathan D. Woods, presented at the Annual Meeting of the Western Political Science Association, Long Beach, CA, March 22-24, 2002. 12 App. 000295 - Pls.' SJ Opp'n, Kitchen v. Herbert
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TEACHING ACTIVITIES
Graduate Courses Taught Seminar in Political Behavior Seminar in Congress Seminar in Interest Groups Quantitative Methods I Core Seminar in American Politics Undergraduate Courses Taught Elections and Voting Behavior Legislative Process Societal Responses to AIDS Quantitative Analysis Latino Politics Understanding Political Research Inequality and American Democracy Doctoral Students Supervised (Chair) Christina Bejarano, Assistant Professor, Department of Political Science, University of Kansas, 2007. Ken Cimino, Deceased, 2004. Stacy B. Gordon, Associate Professor, Department of Political Science, University of Nevada, 1997. Daryl Liskey, Senior Computational Social Scientist, Booz Allen Hamilton Corporation (Strategy and Technology Consulting), 2002. Stephen P. Nicholson, Assistant Professor, School of Social and Behavioral Sciences, University of California, Merced, 1998. Recipient of the APSA’s E.E. Schattschneider Award for the Best Dissertation in American Politics, 1999. Adrian D. Pantoja, Associate Professor, Department of Politics, Pitzer College, 2001. Francisco Pedraza, Assistant Professor, Department of Political Science, Texas A&M University 2010. Helena Rodrigues, Direct, Project ADVANCE, University of Arizona, 2005. Roger P. Rose, Associate Professor, Department of Political Science, University of Minnesota, Morris, 1997. (Co-directed)

Research Design in Political Science Seminar on Representation & Electoral Systems Nature of Political Science Inquiry Seminar on Racial, Ethnic, and Social Minorities Seminar on Race and Racism in Contemporary American Politics Introduction to American Politics Introduction to Political Philosophy Politics and Homosexuality Minority Representation and the VRA Minority and Group Mobilization Seminar on Race and Racism Parties, Voting, Media, and Elections

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Gregory Saxton, Assistant Professor, Department of Communication, University at Buffalo-SUNY, 2000. (Co-directed) Ali Valenzuela, Assistant Professor, Department of Politics, Princeton University, 2011. Jacqueline White, Deputy Chief Administrative Officer, County of Los Angeles, 2004. Nathan D. Woods, Director, Welch Consulting, Washington, DC, 2004. Doctoral Committee Memberships Elizabeth Bergman, Assistant Professor, California State University East Bay, 2001. Jeff Cummins, Assistant Professor, California State University, Fresno, 2003. Elizabeth DeSouza, Visiting Assistant Professor, Claremont Graduate University, 1999. Rose Ernst, Assistant Professor, Seattle University, 2004. Scott Frisch, Associate Professor, Department of Political Science, California State University, Channel Islands, 1997. Marcia Godwin, Assistant Professor, Public Administration, University of LaVerne, 2000. Christopher Hoene, Director, Center for Policy and Research, National League of Cities, 1999. William Julius, Visiting Assistant Professor, Department of Political Science, California State University, Fullerton, 2002. George Monsavais, Executive Director, “Two Minute Briefing,” Provo, Utah, 2001. Deidre Sanders, Environmental Justice Program Manager, Pacific Gas and Electric, 2009. Nancy Shulock, Associate Professor of Public Policy and Administration, California State University, Sacramento, 1996. Recipient of the APSA’s Harold Lasswell Award for the Best Dissertation in Policy Studies, 1997. Charles Turner, Associate Professor and Chair, Department of Political Science, California State University, Chico, 2000. Whittaker, Matthew. Staff Researcher, College of Education, University of Iowa. June 2006. Doctoral Dissertations in Progress Wendy Gross, (Co-chair) Mackenzie Israel-Trummel, (Chair) Rachel Stein, (Member) Lucila Figueroa, (Member) Jeanette Carmen Bustamante, (Chair) Rachel Gillumn, (Member) 14 App. 000297 - Pls.' SJ Opp'n, Kitchen v. Herbert
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SERVICE
Professional Service and Memberships: Vice-President-Eelect and Program Chair-Elect, Western Political Science Association, 20112012. Chair, Nominations Committee, Class III Section 3, American Academy of Arts and Sciences, 2011-14. Member, International Academic Advisory Board, the United States Studies Centre at the University of Sydney, NSW, Australia, 2011-present. Academic and Research Program Review Subcommittee—2011-2012. Member, APSA Standing Committee on Conference Siting, 2011-present. Guest Co-Editor: Annual Review of Political Science, 2011. APSR Editorial Search Committee, American Political Science Association, 2010-2011. Nominations Committee, Class III Section 3, American Academy of Arts and Sciences, 2010-11. Executive Board, Consortium of Social Science Associations (COSSA), 2010. President, Midwest Political Science Association, 2009-2010. President-elect, Midwest Political Science Association, 2008-2009. Southern Political Science Association, Committee on the Status of Gays, Lesbians and Bisexuals, 2008-2009. Western Political Science Association PRQ Best Paper Award Committee, 2008-2009. NSF IGERT Panelist, 2007 Vice-President, Midwest Political Science Association, 2006-2007. Member, APSA Pi Sigma Alpha Award Committee, 2006-2007. General Program Chair, 2006 Annual Meeting of the Midwest Political Science Association. Board of Overseers, American National Election Study, 2006-2009 Member, WPSA Best Paper on Latino/a Politics Committee, 2005-2006. President, Latino Caucus of the American Political Science Association, 2004-2005. Member, Executive Council of the American Political Science Association, 2002-2004. Member of the Council’s Administrative Committee, 2003-2004; Member of the Council’s Sub-committee on Public Presence, 2003-2004. Member, Nominations Committee, American Political Science Association, 2005-2006. Section Program Co-Chair, Organized Section on Race, Ethnicity, and Politics, 2005 Annual Meeting of the American Political Science Association. Member, Executive Council of the Western Political Science Association, 2005-2008. Member, Executive Council of the Organized Section on Elections, Voting Behavior, and Public Opinion of the APSA, 2002-2004. Member, Editorial Board, American Journal of Political Science, January, 2002-2009. Member, Editorial Board, Journal of Politics, January, 2005-2007; 2009-present. Member, Editorial Board, Political Research Quarterly, June 2006-present. Member, Editorial Board, PS: Political Science & Politics, January, 2002-2004. Member, Executive Council of the Midwest Political Science Association, 2000-2003. Member, Latino Scholarship Fund Award Committee, American Political Science Association, 2003-2005. Member, Midwest Political Science Association Ad Hoc Committee on Short Courses.

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Chair, Western Political Science Association’s Committee on the Status of Chicanos, 20012003. Member, American Political Science Association’s Committee on the Status of Latinos y Latinas in the Profession, 1999-2001. Member, Western Political Science Association’s Committee on the Status of Chicanos, 2000-2001. Member, Steering Committee, Latino Scholarship Fund, APSA Centennial Campaign Invited Lecture, the Joseph Serna Center, California State University, Sacramento, October 2008. Invited Presentation, University of Illinois at Urbana, La Casa Cultural Latina and Department of Political Science, November 2007 Invited Presentation, Immigrant Political Incorporation Workshop, Harvard, September 2007 Invited Presentation, Democratic Caucus of the House of Representatives, February 2007 Invited Presentation, Center for American Progress, Washington, DC, February 2007 Invited Presentation, Latino Issues Forum and San Francisco Foundation, February 2007 Invited Lecture, University of California, Davis, February, 2007 Invited Lecture, Texas Tech University, Lubbock, April 2006 Invited Lecture, Texas State University, San Marcos, April 2006 Invited Lecture, University of California, Berkeley, October 2005 Invited Panelist, American Anthropological Society Conference on Race and Human Variation, Arlington, VA, September 2004 Invited Lecture, Texas A&M University, College Station, November 2004 Invited Lecture, University of California, San Diego, May 2004 Invited Lecture, Washington University in St. Louis, February, 2004 Invited Lecture, University of Wisconsin, Madison, April, 2003 Invited Lecture, University of Washington, November, 2003 Invited Lecture, Hunter College-CUNY, October, 2002 Invited Lectures, Ralph Bunche Institute, 2000, 2004 Invited Discussant, Conference on Migration, UC-San Diego, Fall 2000 Invited Lecture, University of California, Irvine, April, 1999 Invited Panelist, Conference on the “New Californios” UC-Irvine, April 1997. Invited Panelist, Conference on ‘The 1996 elections and the Latino Community,” School of Public Policy, University of California, Berkeley, November 1996. Section Program Chair, Voting and Elections, 2001 Meeting of the WPSA Manuscript Reviewer: APSR, AJPS, JOP, LSQ, PRQ, SSQ, JCR, Political Behavior, Political Psychology, El Centro, APR, NSF, PS, International Migration Review University and College Service: Stanford University Chair, Program in Chicano/a Studies, Center for Comparative Studies in Race and Ethnicity. 2008-2014. Faculty Senate, 2010-2013. Editorial Board, Series in the Comparative Studies in Race and Ethnicity, Stanford University Press, 2010-present. Leading Matters Lecturer, November 13, 2010. 16 App. 000299 - Pls.' SJ Opp'n, Kitchen v. Herbert
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IRiSS Executive Committee, 2009-present. Founding Co-Director, Stanford Center for American Democracy, within the Institute for Research in the Social Sciences, 2008-present. Founding Director, Institute on the Politics of Inequality, Race and Ethnicity at Stanford. 2009-present. Member, Guiding Concilio, El Centro Chicano, 2009-2011. Invited Speaker, Sophomore Seminar, Stanford University, 2008, 2009. University of Washington Departmental Review Committee, Department of Communication, 2007-8 Founder and Director, University of Washington Institute for the Study of Ethnicity, Race, and Sexuality, 2006-present. University of Iowa Faculty Senate, 2003-2004. Member, Faculty Senate Committee on Government Relations, 2002-2004. Member, University of Iowa Council on the Status of Latinos, 2001 to present. Member, Board in Control of Athletics, 2003-2004; Subcommittees on Academic Achievement and Equity. Member, Sexuality Studies Program Advisory Committee, 2003-2004. Member, Obermann Center Advisory Committee, 2003-2005. Member, Interdisciplinary Research Grant Review Committee, Obermann Center, December 2003. Faculty Host, Provost Candidate Forum, December 2003. Member, Faculty Assembly Nominations Committee, April 2003. Presentation to the Latino Youth Summit, Sponsored by Opportunity at Iowa, October 31, 2003. Visiting Lecture, Hispanic Student Association, Cornell College, November, 2002. Paper Presentation, “Changes in Latitudes, Changes in Attitudes: How Latino Immigration and Political Incorporation are Changing the Face of American Politics,” at the public forum, “Latinos-Ignored No Longer,” sponsored by the UI Council on the Status of Latinos in Commemoration of Latino Heritage Month, October 15, 2002. Key Note Speaker, UI Latino Commencement Celebration, May 2002. Conference Presentation, Western Hemispheric Integration, Democracy and the Rule of Law, organized by the UI College of Law and International Programs, April, 2002. Claremont Graduate University Member, Affirmative Action and Diversity Committee, Serving on the Information Science Search Committee as part of these duties; Member, Campus Master Planning Committee; Member, Commencement Speaker Committee; Member, Lambda Faculty and Staff Association, Curriculum sub-committee, 1997-2001; Committee for an Undergraduate Major in Political Psychology, April 1999 to 2000; Panel Speaker, Inauguration of Steadman Upham as President of the University; Faculty Executive Committee, July 1, 1997 to June 30, 1999; Space Allocation and Facilities Review Committee, March 1997-2001; 17 App. 000300 - Pls.' SJ Opp'n, Kitchen v. Herbert
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Diversity Task Force, January 1997 to May 1998; Chair, Campus-wide Working Group on Financial Aid and Fellowship Allocation Policy, Spring 1998; Community Fellows Selection Committee, October, 1998; UC-Davis Member, Central Valley Initiative Planning Committee, Vice-Provost's Office, Spring 1994; Member, Chancellor's Committee on Lesbian, Gay and Bisexual Issues, April 1994-1996; Member, Institute of Governmental Affairs--SSDS Statistical Consultant Search Committee, Summer 1994; Chair, Institute of Governmental Affairs-ICPSR Committee and UCD Faculty ICPSR Liason, 1994-95; Departmental Service: Stanford University Member, Political Science Omnibus Search Committee, 2011-2012. Member, CCSRE Strategic Planning Committee, 2011-2012. Member, Political Science Graduate Admissions, 2010-2011. Member, African-American Politics Search Committee, 2009-2010. American Politics Field Chair, 2008-09. Member, Graduate Admissions, 2008-09. Member, American Politics Search Committee, 2008-09. Member, CCSRE Curriculum Committee, 2008-present. Chair, Ernesto Galarza Memorial Lecture Committee, 2008-present. Director, CCSRE Public Policy Institute, 2009-present. University of Washington Member, Lev Award Committee, 2007 Member, Third-year Review Committee for Matt Barreto, 2007 Member, Graduate Admissions Committee, 2006-08 Chair, Tenure and Promotion Review for Luis Ricardo Fraga, 2006 Chair, African-American Politics Target of Opportunity Search, 2005-06. Member, Graduate Program Committee, 2005-07. Member, Honors Program Interview Committee, 2005-06. University of Iowa Member, Department Executive Committee, 2003-04. Member, Department Bose Speaker Series Committee, 2003-04. Member, Tenure Review Committee for Sara M. Mitchell, December 2003. Chair, American Politics Doctoral Examination Field Committee, November 2003. Chair, Third-year Review Committee, Fred Boehmke, 2002-2003. Chinese Politics Search Committee, 2002 18 App. 000301 - Pls.' SJ Opp'n, Kitchen v. Herbert
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Computer Committee, 2001-2002 Claremont Graduate University Coordinator of the MA program in American Politics, 1999-2001; American Politics Field Committee; Admissions and Awards Committee, Chair: July 1997-June 1999; Political Economy Search Committee 1996-1997; UC-Davis American Politics Search Committee, 1995-96; MA Graduate Program Advisor (American, Public Law, and Theory), 1994-95; Member, Graduate Affairs Committee, 1994-96; Coordinator, Political Science Research Colloquium, 1992-1994; Law and Politics Search Committee, 1993-94; Director, Public Affairs Internship Program, 1993-94; Co-Director, Publ