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Kathryn D. Kendell (5398) National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442 kkendell@nclrights.org Attorney for Proposed Amicus Curiae the National Center for Lesbian Rights

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH CENTRAL DIVISION KITCHEN, et al., Plaintiffs, v. HERBERT, et al., Defendants. Case No. 2:13-cv-00217-RJS Honorable Robert J. Shelby

THE NATIONAL CENTER FOR LESBIAN RIGHTS’ MOTION FOR LEAVE TO FILE MEMORANDUM OF LAW AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

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The National Center for Lesbian Rights (“NCLR”) respectfully seeks leave of Court to file the accompanying memorandum of law as amicus curiae in support of Plaintiffs’ motion for summary judgment and in opposition to Defendants’ motion for summary judgment. “Because an amicus curiae participates only for the benefit of the court, and is not a party to the litigation, the court has the sole discretion to determine the fact, extent, and manner of participation by the amicus.” Kane Cnty., Utah v. United States, 934 F. Supp. 2d 1344, 1347 (D. Utah 2013) (quotations, citation, and alteration omitted). “Generally, courts have exercised great liberality in permitting an amicus curiae to file a brief in a pending case” and an “amicus must merely make a showing that his participation is useful to or otherwise desirable to the court.” United States v. Louisiana, 751 F. Supp. 608, 620 (E.D. La. 1990); see also Hammond v. City of Junction City, Kansas, No. 00 2146–JWL, 2001 WL 1665374 (D. Kan. Dec. 17, 2001) (granting leave to file as amicus curiae because “it is in the interest of the court and all parties to ensure that all arguments concerning [an important] issue are presented fully at this juncture”). NCLR is a national nonprofit legal organization dedicated to protecting and advancing the civil rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. Since its founding in 1977, NCLR has played a leading role in securing fair and equal treatment for LGBT people and their families in the areas of constitutional and civil rights. NCLR currently represents Plaintiffs in lawsuits across the country who seek the freedom to marry in their states, or the right to have their valid out-of-state marriages recognized, including cases in Tennessee, New Mexico, and Idaho. NCLR has a strong interest in protecting LGBT families across the country, including in Utah, and has extensive legal expertise with the issues pending before this Court.

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NCLR respectfully suggests that the accompanying memorandum of law may assist the Court in resolving the issues presented in this case. NCLR supports all of the arguments made by the Plaintiffs in this case, including that Utah’s laws prohibiting same-sex couples from marrying and prohibiting recognition of the lawful marriages of same-sex couples who married in other states unconstitutionally deprive those couples of their fundamental right to marry and impermissibly discriminate against same-sex couples based on their gender and sexual orientation. NCLR files this brief to address several additional and distinct reasons why Utah’s refusal to respect the marriages of same-sex couples who married in other states violates the Constitution’s guarantees of due process and equal protection. Specifically, as the Supreme Court recently recognized in United States v. Windsor, 133 S. Ct. 2675, 2693 (2013), the marriages of same-sex couples entered into in other states share “equal dignity” with other couples’ marriages and are entitled to the same protections that the federal Constitution ensures for all other marriages. In Windsor, the Supreme Court held that Section 3 of the federal Defense of Marriage Act, 1 U.S.C. § 7 (“DOMA”), “interfere[d] with the equal dignity” of the marriages same-sex couples by treating those marriages as if they did not exist for purposes of federal law. Id. NCLR has a particular interest in these issues because it represents four married same-sex couples in Tennessee who have filed a federal lawsuit in the United States District Court for the Middle District of Tennessee seeking to require Tennessee to recognize the legal marriages that plaintiffs entered into in other states. Tanco v. Haslam, No. 3:13-cv-01159 (M.D. Tenn. Oct. 23, 2013). On November 19, 2013, NCLR filed on behalf of the plaintiffs in that action a motion for preliminary injunction arguing that the couples are likely to prevail on their arguments that the federal Constitution requires Tennessee to recognize their valid marriages entered into in other

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states. In light of the briefing that NCLR prepared in the Tennessee lawsuit, NCLR wishes to bring to this Court’s attention certain arguments in support of the claim by Plaintiffs in this case that the federal Constitution requires Utah to recognize legal marriages that same-sex couples entered into in other states. As an organization with a long history of litigating these issues in courts across the country, NCLR therefore respectfully requests leave of court to file the accompanying memorandum of law in support of Plaintiffs’ motion for summary judgment and in opposition to Defendants’ motion for summary judgment. Dated: November 29, 2013 Respectfully Submitted,

____________________________ Kathryn D. Kendell (5398) National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442 kkendell@nclrights.org Attorneys for Proposed Amicus Curiae the National Center for Lesbian Rights

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Kathryn D. Kendell (5398) National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442 kkendell@nclrights.org Attorney for Proposed Amicus Curiae the National Center for Lesbian Rights

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION KITCHEN, et al., Plaintiffs, v. HERBERT, et al., Defendants. Case No. 2:13-cv-00217-RJS Honorable Robert J. Shelby

MEMORANDUM OF LAW OF THE NATIONAL CENTER FOR LESBIAN RIGHTS AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS STATEMENT OF INTEREST ...................................................................................................... 1 INTRODUCTION ......................................................................................................................... 1 ARGUMENT ................................................................................................................................. 3 A. Utah’s Anti-Recognition Laws Are An Unusual Deviation From Its Longstanding Tradition And Practice Of Recognizing Valid Marriages From Other States .............................................................................................................. 4 B. Utah’s Anti-Recognition Laws Unjustifiably Infringe Upon Same-Sex Couples’ Protected Liberty Interest In Their Marriages .................................................... 6 1. Utah’s anti-recognition laws inflict severe harms on married same-sex couples and their children and disrupt their marital and family relationships ................................................................................... 9 2. Like DOMA, Utah’s anti-recognition laws were enacted for the improper purpose of treating married same-sex couples unequally ........................................................................................................ 12 C. Utah’s Anti-Recognition Laws Violate Equal Protection ................................................ 13 D. Utah’s Refusal To Recognize Same-Sex Couples’ Valid Marriages Undermines Important Goals Of Federalism ................................................................... 13 E. Section 2 Of DOMA Provides No Justification For Utah’s Discriminatory Marriage Recognition Laws ............................................................................................. 15 CONCLUSION ............................................................................................................................ 17

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TABLE OF AUTHORITIES Cases Cahoon v. Pelton, 342 P.2d 94 (Utah 1959) ................................................................................... 4 Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534-35 (1973) .................................................... 14 Griswold v. Connecticut, 381 U.S. 479 (1965) ........................................................................... 7, 8 Lawrence v. Texas, 539 U.S. 558, 578 (2003) .............................................................................. 11 Loving v. Virginia, 388 U.S. 1 (1967)............................................................................................. 7 M.L.B. v. S.L.J., 519 U.S. 102 (1996) ............................................................................................. 8 McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951) ..................................................... 4 Moore v. City of East Cleveland, 431 U.S. 494 (1977) .................................................................. 8 Norton v. Macfarlane, 818 P.2d 8 (Utah 1991) .............................................................................. 4 Obergefell v. Kasich, No. 1:13-cv-501, 2013 WL 3814262, at *1 (S.D. Ohio July 22, 2013)....... 6 Pearson v. Pearson, 51 Cal. 120 (1875) ......................................................................................... 5 Roberts v. Hartz, 113 Fed. Appx. 306, 312 (10th Cir. 2004) ......................................................... 8 Roberts v. United States Jaycees, 468 U.S. 609 (1984).................................................................. 7 Saenz v. Roe, 526 U.S. 489, 508 (1999) ....................................................................................... 16 Shapiro v. Thompson, 394 U.S. 618, 641 (1969).......................................................................... 16 Tanco v. Haslam, No. 3:13-cv-01159 (M.D. Tenn. Oct. 23, 2013) ................................................ 2 Thomas v. Children’s Aid Soc. of Ogden, 364 P.2d 1029 (Utah 1961) .......................................... 5 Troxel v. Granville, 530 U.S. 57 (2000) ..................................................................................... 7, 8 United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) ....................................................... passim

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Washington v. Glucksberg, 521 U.S. 702 (1997) ........................................................................... 7 Wells v. Children’s Aid Soc. of Utah, 681 P.2d 199 (1984) ........................................................... 5 Statutes Act of March 14, 1995, ch. 146, 1995 Utah Laws 146 (providing that a marriage recognized in any other state or country may not be recognized in Utah) (codified as amended Utah Code Ann. § 30-1-4 (Supp. 1995) (effective May 1, 1995) ................................................................. 4 Defense of Marriage Act, 1 U.S.C. § 7 ........................................................................................... 2 Utah Code § 30-1-2 ................................................................................................................. 12, 14 Utah Code § 30-1-4 ................................................................................................................... 4, 12 Utah Code § 40-1-2 (repealed 1963) .............................................................................................. 5 Utah Code 30-1-2(5) ..................................................................................................................... 12 Utah Rev. Stat. § 1186 (1898) ........................................................................................................ 5 Other Authorities James R. Browning, Anti-Miscegenation Laws in the U.S., 1 Duke B. J. 26 (1951) ..................... 5 Joseph William Singer, Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 STAN. J. C.R. & C.L. 1, 40 (2005) ......................................................................... 5 Lois A. Weithorn, Can a Subsequent Change in Law Void a Marriage that Was Valid at Its Inception? Considering the Legal Effect of Proposition 8 on California's Existing Same-Sex Marriages, 60 Hastings L.J. 1063, 1125 (2009) ......................................................................... 9 Luther L. McDougal III et al., American Conflicts Law 713 (5th ed. 2001). ................................. 4 William M. Richman & William L. Reynolds, Understanding Conflict of Laws 398 (3d ed. 2002) ................................................................................................................................................. 5, 9 Constitutional Provisions Utah Const. art. I, § 29 .............................................................................................................. 4, 12

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STATEMENT OF INTEREST The National Center for Lesbian Rights (“NCLR”) is a national nonprofit legal organization dedicated to protecting and advancing the civil rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. Since its founding in 1977, NCLR has played a leading role in securing fair and equal treatment for LGBT people and their families in the areas of constitutional and civil rights. NCLR currently represents plaintiffs in lawsuits across the country who seek the freedom to marry, or the right to have their valid out-of-state marriages recognized, including in cases in Tennessee, New Mexico, and Idaho. NCLR has a strong interest in protecting LGBT families across the country, including in Utah, and has extensive legal expertise with the issues pending before this Court. INTRODUCTION Amicus curiae NCLR respectfully submits this brief in support of Plaintiffs’ motion for summary judgment and in opposition to Defendants’ motion for summary judgment. NCLR supports all of the arguments made by the Plaintiffs in this case. In particular, Utah’s laws prohibiting same-sex couples from marrying and prohibiting recognition of the lawful marriages of same-sex couples who married in other states unconstitutionally deprive those couples of their fundamental right to marry and impermissibly discriminate against same-sex couples based on their gender and sexual orientation. NCLR files this brief to address several additional and distinct reasons why Utah’s refusal to respect the marriages of same-sex couples who married in other states also violates the Constitution’s guarantees of due process and equal protection. NCLR has a particular interest in these issues because it represents four married same-sex couples in Tennessee who have filed a 1

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lawsuit in the United States District Court for the Middle District of Tennessee seeking to require Tennessee to recognize their legal marriage entered into in other states. Tanco v. Haslam, No. 3:13-cv-01159 (M.D. Tenn. filed Oct. 21, 2013). On November 19, 2013, NCLR filed on behalf of the plaintiffs in that action a motion for preliminary arguing that the couples are likely to prevail on their arguments that the federal Constitution requires Tennessee to recognize their valid foreign marriages. In light of the briefing that NCLR prepared in the Tennessee lawsuit, NCLR wishes to bring to this Court’s attention additional arguments in support of the claim by Plaintiffs in this case that the federal Constitution requires Utah to recognize legal marriages that same-sex couples entered into out-of-state. Specifically, as the Supreme Court recently recognized in United States v. Windsor, 133 S. Ct. 2675, 2693 (2013), the marriages of same-sex couples entered into in other states share “equal dignity” with other couples’ marriages and are entitled to the same protections that the United States Constitution ensures for all other marriages. In Windsor, the Supreme Court held that Section 3 of the federal Defense of Marriage Act, 1 U.S.C. § 7 (“DOMA”), “interfere[d] with the equal dignity” of the marriages of same-sex couples by treating those marriages as if they did not exist for purposes of federal law. Id. Utah’s categorical refusal to respect the valid marriages of same-sex couples who married in other states violates due process and equal protection for the same reasons that the Supreme Court concluded in Windsor that the federal government’s categorical refusal to respect valid same-sex marriages violated those constitutional guarantees. Like Section 3 of DOMA, Utah’s anti-recognition laws unjustifiably infringe upon married same-sex couples’ constitutionally protected liberty interest in their existing marriages and constitutes “a deprivation of the liberty of the person” protected by due process. Id. at 2695. Similarly, the anti-recognition laws

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deprive married same-sex couples of equal protection of the laws by discriminating against the class of legally married same-sex couples, not to achieve any important or even legitimate government interest, but simply to express disapproval of that class and subject that class to unequal treatment. See id. at 2695-96. As with DOMA, the challenged Utah anti-recognition laws’ “principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” Id. at 2694. Utah’s refusal to respect the otherwise valid marriages of same-sex couples cannot withstand constitutional scrutiny because “no legitimate purpose overcomes the purpose and effect to disparage and to injure” married same-sex couples. Id. at 2696. ARGUMENT In addition to unconstitutionally depriving same-sex couples of their fundamental right to marry and impermissibly discriminating on the basis of gender and sexual orientation, Utah’s refusal to recognize same-sex couples’ valid out-of-state marriages also raises constitutional issues that are distinct from those raised by Utah’s refusal to permit same-sex couples to marry. Utah’s anti-recognition laws constitute a stark departure from Utah’s longstanding practice, and that of other states, of recognizing valid marriages from other states in all but the rarest of circumstances. The resulting harms caused to married same-sex couples are severe, leaving those couples and their families in an untenable limbo and effectively stripping them of an existing marital status for all state law purposes. As the Supreme Court affirmed in Windsor, laws that depart from existing practice and tradition by withholding governmental recognition from valid state marriages warrant “careful consideration” under both due process and equal protection review. Id. at 2693. Like DOMA, Utah’s refusal to recognize legally married samesex couples violates “basic due process and equal protection principles” by excluding married

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same-sex couples from protection, not to further a legitimate purpose, but simply “to identify a subset of state-sanctioned marriages and make them unequal.” Id. at 2693, 2694. A. Utah’s Anti-Recognition Laws Are An Unusual Deviation From Its Longstanding Tradition And Practice Of Recognizing Valid Marriages From Other States. Before the enactment of House Bill 366 (“HB 366”) in 1995, Utah law provided that “[m]arriages solemnized in any other country, state or territory, if valid where solemnized, are valid here.” Utah Code § 30-1-4 (1994); see also Cahoon v. Pelton, 342 P.2d 94, 96 (Utah 1959) (“Generally, the laws of the state where a marriage is consummated determine its validity.”) overruled in part on other grounds by Norton v. Macfarlane, 818 P.2d 8 (Utah 1991). This rule—known as the “place of celebration rule”—is recognized in every state and is a defining element of our federal system and American family law. See, e.g., McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951) (“The general and apparently universally accepted rule is that the validity of a marriage is to be determined by the law of the place of the celebration of the marriage, or the lex loci contractus.”). The rule recognizes that individuals order their lives based on their marital status and “need to know reliably and certainly, and at once, whether they are married or not.” Luther L. McDougal III et al., American Conflicts Law 713 (5th ed. 2001). This rule of marriage recognition also “confirms the parties’ expectations, it provides stability in an area where stability (because of children and property) is very important, and it avoids the potentially hideous problems that would arise if the legality of a marriage varied from state to
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Act of March 14, 1995, ch. 146, 1995 Utah Laws 146 (providing that a marriage recognized in any other state or country may not be recognized in Utah) (codified as amended Utah Code Ann. § 30-1-4 (Supp. 1995) (effective May 1, 1995). HB 366 created an exception to the place of celebration rule for the marriages of same-sex couples, as well as for certain bigamous and underage marriages. In 2004, Utah voters enshrined a similar provision in the Utah Constitution. Utah Const. art. I, § 29(2) (“No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”).
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state.” William M. Richman & William L. Reynolds, Understanding Conflict of Laws 398 (3d ed. 2002).
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Before the enactment of HB 366, this rule had been in place in Utah for nearly a century. See, e.g., Utah Rev. Stat. § 1186 (1898). Even during the era in which Utah and many other states barred interracial marriages, see former Utah Code § 40-1-2 (repealed 1963), Utah recognized interracial marriages from other states, including those entered into by Utah residents who traveled to other states to avoid Utah’s prohibition of interracial marriage. See James R. Browning, Anti-Miscegenation Laws in the U.S., 1 Duke B. J. 26, 29, 35 (1951) (describing Utah’s practice of recognizing valid interracial marriages from other states).
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Against this background, Utah’s ban on recognizing the valid marriages of same-sex couples who marry in other states represents a stark departure from the general rule followed throughout the country and from Utah’s own past and current treatment of out-of-state marriages. Utah enacted these laws in 1995 and 2004 as part of a national wave of statutes and state constitutional amendments aimed at barring same-sex couples from the protections of marriage. Courts throughout the country, including this Court, are now considering whether the states have

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Reliance by courts on the public policy exception to deny recognition to out-of-state marriages historically has been extremely rare in Utah and elsewhere. Indeed, “until the recent hysteria associated with same sex marriage, the public policy exception was fast becoming obsolete.” Joseph William Singer, Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 STAN. J. C.R. & C.L. 1, 40 (2005). See also Thomas v. Children’s Aid Soc. of Ogden, 364 P.2d 1029 (Utah 1961) (assuming without deciding that Utah would recognize the marriage of an interracial couple who married in Idaho to avoid Utah’s miscegenation statute if the marriage had not been void under both Idaho and Utah law on other grounds) overruled in part on other grounds by Wells v. Children’s Aid Soc. of Utah, 681 P.2d 199 (1984). Conversely, states that banned interracial marriage generally recognized interracial marriages contracted in Utah before Utah began to prohibit such marriages. See, e.g., Pearson v. Pearson, 51 Cal. 120 (1875) (recognizing marriage contracted between Utah residents before moving to California, where interracial marriages were prohibited).
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deprived married same-sex couples of constitutionally protected liberties through enactment and enforcement of state-level “Defense of Marriage” laws that departed from their longstanding practices of respecting valid marriages from other states. See, e.g., Obergefell v. Kasich, No. 1:13-cv-501, 2013 WL 3814262, at *1 (S.D. Ohio July 22, 2013) (enjoining state officials from refusing to recognize the valid out-of-state marriage of a same-sex couple). For the reasons explained below and in Plaintiffs’ briefs, Utah’s refusal to recognize the marriages of an entire category of persons who validly married in other states, solely to exclude a disfavored group from the ordinary legal protections and responsibilities they would otherwise enjoy, and despite the severely harmful impact of that refusal, cannot survive any level of constitutional scrutiny. B. Utah’s Anti-Recognition Laws Unjustifiably Infringe Upon Same-Sex Couples’ Protected Liberty Interest In Their Marriages. Like the plaintiff in Windsor, Plaintiffs Karen Archer and Kate Call are already legally married. Windsor held that the federal government’s refusal to recognize legally married samesex couples violated due process because it burdened “many aspects of married and family life, from the mundane to the profound,” 133 S. Ct. at 2694, and because its “avowed purpose and practical effect” were to treat those couples unequally, rather than to further a legitimate purpose. Id. at 2693. Utah’s anti-recognition laws deprive married same-sex couples of due process for the same reasons. Windsor’s holding that married same-sex couples have a protected liberty interest in their marriages means that married same-sex couples, like other married couples, have liberty interests in their marriages that are protected against infringement by any level of government—federal, state, or local. The State of Utah’s argument that Windsor’s holding applies only to the federal government has no merit. Def.’s Mot. Summ. J. at 47. It seems doubtful that Utah would contend that it may disregard other liberty interests protected by the federal Constitution simply
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because a case in which a federal court recognized that liberty interest involved the federal government as a defendant instead of a state. A protected liberty interest is safeguarded from unjustified intrusion by any government. For example, a person’s protected interest in maintaining parent-child bonds exists regardless of whether those interests are threatened by the federal government or by a state. See, e.g., Troxel v. Granville, 530 U.S. 57 (2000) (invalidating state law that impermissibly infringed upon parental rights). Windsor’s recognition that same-sex couples’ marriages are constitutionally protected is consistent with cases stretching back for decades in which the Court has held that spousal relationships, like parent-child relationships, are among those intimate family bonds whose “preservation” must be afforded “a substantial measure of sanctuary from unjustified interference by the State.” Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984); see also Loving v. Virginia, 388 U.S. 1, 12 (1967) (reversing married interracial couple’s convictions for violations of anti-miscegenation statutes ); Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (holding that marriage is “a relationship lying within the zone of privacy created by several fundamental constitutional guarantees”); Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (recognizing “marital privacy” as a fundamental liberty interest). The Supreme Court’s cases protecting family relationships have explained that the Due Process Clause “guarantees more than fair process”; it “also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests.”
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While Loving is usually cited as a case about the right to marry, it also involves a particularly severe type of interference with an existing marital relationship. The plaintiffs in Loving had traveled outside their home State of Virginia to get married, and it was Virginia’s refusal to recognize that marriage, and its criminal prosecution of the married couple when they returned to Virginia, that led to their successful challenge in the Supreme Court.
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Troxel, 530 U.S. at 65 (internal quotation marks and citations omitted); see also Roberts v. Hartz, 113 Fed. Appx. 306, 312 (10th Cir. 2004). Under these and other cases, laws that significantly burden protected liberties must be subjected to heightened scrutiny. See, e.g. Griswold, 381 U.S. at 485-86, 503-504 (applying heightened constitutional scrutiny in striking down law barring use of contraceptives by married couples); Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (holding that where law burdened a protected family relationship, the court must “examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (holding that state action burdening a protected parent-child relationship requires “close consideration”); Windsor, 133 S. Ct. at 2692 (holding that federal statute burdening marital relationships requires “careful consideration”) (internal citations omitted). Utah’s anti-recognition laws also warrant heightened scrutiny because, as the Supreme Court recognized in Windsor, there is no basis to distinguish between same-sex and opposite-sex married couples in defining their liberty interest in their existing marriages lawfully entered in other jurisdictions. See id. at 2693 (affirming “the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power”). Marriage is a status of “immense import.” Id. at 2681. Once that status has been lawfully conferred by a state, Plaintiffs have the same protected liberty interest in their marital relationships as did the plaintiffs in Windsor, Loving, Griswold, and other cases involving attempts by the government to burden protected family relationships.

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1. Utah’s anti-recognition laws inflict severe harms on married same-sex couples and their children and disrupt their marital and family relationships. In a manner virtually unprecedented in this country’s history (outside the context of antimiscegenation laws), Utah’s anti-recognition laws, and similar laws that other states have recently enacted with respect to married same-sex couples, cause serious harms to families and society by disregarding the longstanding, deeply rooted, and otherwise near-universal rule that a marriage that is validly entered into by a couple living in one state will be recognized when the couple travels or relocates to another state. This uniform rule of marriage recognition “confirms the parties’ expectations, it provides stability in an area where stability (because of children and property) is very important, and it avoids the potentially hideous problems that would arise if the legality of a marriage varied from state to state.” Richman & Reynolds, supra, at 398. By excluding legally married same-sex couples from this uniform rule, Utah has created an untenable and chaotic situation whereby Plaintiffs Archer and Call are legally married in Iowa, where they wed, legally married in the many other states and countries that recognize the marriages of same-sex couples who marry in other jurisdictions, and legally married for purposes of most federal protections and responsibilities. But so long as they reside in Utah, these Plaintiffs’ legal marriage, and those of other legally married same-sex couples, are deemed void and unenforceable under the laws of this state. The instability and harms caused to these Plaintiffs and others by this extraordinary situation are significant, continuing, and cumulative. “[N]ullification of a valid marriage when both partners wish to remain legally married constitutes the most extreme form of state interference imaginable in the marital relationship.” Lois A. Weithorn, Can a Subsequent Change in Law Void a Marriage that Was Valid at Its Inception? Considering the Legal Effect of Proposition 8 on California's Existing Same-Sex Marriages, 60 Hastings L.J. 1063, 1125 (2009).
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By excluding legally married same-sex couples from recognition, the State of Utah disrupts their protected family relationships. Marriage provides the only means under Utah law whereby two adults can establish a family unit that must be legally respected by the state and by others. Through hundreds of statutes, regulations, and common law rules, Utah’s laws provide married couples with comprehensive protections and responsibilities that enable them to make a legally binding commitment to one another and to any children they may have, and to be treated as a legal family. These state-law protections range “from the mundane to the profound,” Windsor, 133 S. Ct. at 2694, but many are designed to assist families in their times of greatest need and to protect them when misfortune strikes unexpectedly. Virtually all other couples who legally marry in other states, including couples who could not have married under Utah’s own laws, are treated as married in Utah, and automatically obtain all of the same protections and responsibilities as other married couples in Utah. Utah’s anti-recognition laws strip legally married same-sex couples of all marital protections under state law and deprive them of the certainty, stability, permanence, and predictability that marriage is designed to provide.
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By treating married couples as legal strangers, Utah’s anti-recognition laws strip the

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Moreover, the federal government has not yet determined whether certain federal benefits and protections will accrue to married same-sex couples who live in states that do not recognize their marriages. For example, the Social Security Administration has announced that it will recognize the marriages of same-sex couples who reside in a state that recognizes their marriages. Program Operations Manual System, GN 00210.100, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210100. But the Administration currently is holding spousal benefits claims filed by married same-sex couples living in states that do not respect their marriages and has not announced whether those benefits will be available to such couples. Program Operations Manual System, GN 00210.005, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210005.

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married Plaintiffs of privacy and autonomy and interfere with their freedom of intimate association. In effect, they have been divorced against their will, for state law purposes, by operation of law. By stripping Plaintiffs of the “recognition, dignity, and protection” they obtained by entering into lawful marriages, Utah’s law “demeans the couple, whose moral and sexual choices the Constitution protects[.]” Windsor, 133 S. Ct. at 2694 (citing Lawrence v. Texas, 539 U.S. 558, 578 (2003)). Marriage is a status of “immense import.” Id. at 2681. It conveys the depth and seriousness of a couple’s commitment to one another, and instructs others to respect the couple’s privacy, dignity, and autonomy and the integrity of their family relationship. Like DOMA, Utah’s anti-recognition laws demean and stigmatize married samesex couples by excluding them from these important protections and placing them in the untenable position of being legally married, but being treated by the State of Utah as unmarried. Id. at 2693–94. Indeed, it is difficult to conceive of a more direct or substantial burden on marital and family relationships than a law that legally nullifies Plaintiffs’ valid marriages. Utah’s anti-recognition laws “tell[] those couples, and all the world, that their otherwise valid marriages are unworthy of . . . recognition.” Id. Utah’s anti-recognition laws also harm the children of married same-sex couples by instructing them that the State of Utah regards their parents’ marriages and their families as less worthy of recognition than other marriages and families—indeed, that they are worthy of no recognition at all. Id. at 2694 (differential treatment of same-sex married couples and oppositesex couples under DOMA “humiliates tens of thousands of children now being raised by samesex 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”). Utah’s anti-recognition laws “instruct[] all [state] officials, and indeed all persons

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with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others” by rendering their lawful marriages a legal nullity for all state law purposes the moment the couple crosses the state line. Id. at 2696. In sum, the harms inflicted on Plaintiffs and their families are as severe, damaging, and pervasive as those recognized in Windsor. 2. Like DOMA, Utah’s anti-recognition laws were enacted for the improper purpose of treating married same-sex couples unequally. Utah’s anti-recognition laws have the same “avowed purpose and practical effect” as Section 3 of DOMA: to deny married same-sex couples all of the benefits and responsibilities that otherwise would flow from Utah’s recognition of the valid marriages of couples who marry in other states. That purpose is apparent on the face of the laws themselves, which render “void” any marriages between same-sex couples that are legally entered into in other states. See Utah Code 30-1-2(5) (prohibiting and declaring void marriages “between persons of the same sex”); Utah Code § 30-1-4 (excluding married same-sex couples from Utah’s general recognition of valid marriages from other states); see also Utah Const. art. I, § 29 (marriages of same-sex couples may not be “recognized” or given “legal effect”). Like DOMA, Utah’s anti-recognition laws were enacted “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages.” Windsor, 133 S. Ct. at 2693–94. Their “principal effect is to identify a subset of state-sanctioned marriages and make them unequal,” and their “principal purpose is to impose inequality.” Id. at 2694. Like Section 3 of DOMA, the Anti-Recognition Laws therefore violate due process and equal protection because “no legitimate purpose overcomes the purpose and effect to disparage and to injure” married same-sex couples in this extraordinary manner. Id. at 2696.

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C. Utah’s Anti-Recognition Laws Violate Equal Protection. In addition to infringing upon the protected liberty interests of married same-sex couples, Utah’s anti-recognition laws facially discriminate against the class of legally married same-sex couples—the same class at issue in Windsor. See id. at 2695 (“The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages…”). For the same reasons explained above, that classification violates basic equal protection principles by singling out a disfavored group for disadvantageous treatment, not to further a legitimate goal, but to impose inequality. D. Utah’s Refusal To Recognize Same-Sex Couples’ Valid Marriages Undermines Important Goals Of Federalism. Defendants erroneously suggest that Windsor stands for the proposition that a state’s authority over marriage is absolute. Def.’s Mot. Summ. J. at 51. In fact, the Windsor court unequivocally affirmed that state regulations of marriage “must respect the constitutional rights of persons.” 133 S. Ct. at 2691. That obligation applies not only to restrictions on marriage under state law, but also to state laws addressing the recognition of marriage from other states. As Windsor held, when a same-sex couple enters into a valid marriage under the laws of a state, the spouses acquire a status of “immense import.” Id. at 2692. Once married, those couples have the same protected interest in their marital privacy, dignity, and autonomy as other married couples. Id. at 2693 (holding that married same-sex couples have “equal dignity”). As explained above, a state may not, consistent with the requirement of due process, infringe upon that
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Those laws, as well as Utah’s laws barring marriage by same-sex couples within the state, also facially classify based on sexual orientation and gender. Amicus strongly agrees with Plaintiffs that those laws must be subject to heightened scrutiny for that reason, as well as because they infringe upon a protected liberty interest.
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protected interest by denying recognition to their marriages unless it has a constitutionally sufficient reason to do so. Similarly, where a state has adopted a general rule of respecting valid marriages from other states, it cannot exclude a particular group from that rule without violating the requirement of equal protection merely because it wishes to treat them unequally. Under any level of constitutional scrutiny, a bare desire to harm a disfavored group, or to treat them unequally, is not a legitimate purpose under either due process or equal protection review. Windsor, 133 S. Ct. at 2693 (citing Dep’t of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973)). Utah’s refusal to recognize an entire category of persons who legally married in other states, and similar refusals by other states in recent years, constitute a virtually unprecedented affront to the basic principles of federalism that have long underlain the marriage recognition practices of the states. Even during the era in which many states barred interracial marriages, very few states refused to recognize such marriages when validly entered in other states. Today, as described above, except in the rarest of circumstances, couples who legally marry in one state can be assured that their marriage will be recognized in other states, regardless of where they choose to travel or live. That assurance—that states will respect the sovereignty of other states to determine their own marriage laws by respecting marriages that are validly entered into in any state—is a bedrock principle of our federalist system on which married couples have long relied. States respect marriages from other states except where there is a compelling reason not to
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A ruling that Utah’s refusal to recognize legally married same-sex couples violates those couples’ protected interests in their marriages in no way undermines or impedes Utah’s traditional authority to withhold recognition from out-of-state marriages for constitutionally sufficient reasons, such as the need to protect vulnerable spouses or potential spouses. That principle entirely distinguishes the laws challenged here from Utah’s withholding of recognition from certain bigamous marriages, when a person has a living spouse, and marriages in which one of the spouses was under fourteen years of age at the time of the marriage. See Utah Code § 301-2.
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because they expect that other states will respect their marriages. Interstate transportability of marriages has become—and has long been—a defining feature of American law and one that is essential to stability, order, and the basic functioning of our highly mobile society. For one state to treat another state’s valid marriages as null and void without adequate justification is not only an affront to the rights of individuals, it is also an affront to the equal sovereignty of other states. For these reasons, the Windsor Court’s emphasis on states’ sovereignty over marriage underscores why Utah’s anti-recognition laws (like those of other states that categorically deny recognition to married same-sex couples) constitute an extraordinary departure from basic principles of federalism, as well as of due process and equal protection. E. Section 2 Of DOMA Provides No Justification For Utah’s Discriminatory Marriage Recognition Laws. The State of Utah seeks refuge in DOMA’s Section 2, arguing that it gives Utah and other states carte blanche to exclude the marriages of same-sex couples from recognition. Def.’s Mot. Summ. J. at 48. As an initial matter, the basis of the Court’s determination in Windsor that Section 3 of DOMA violates basic due process and equal protection principles applies equally to Section 2. Like Section 3, Section 2 targets the class of legally married same-sex couples for disfavored treatment. In Windsor, the Court emphasized that “discriminations of an unusual character” warrant careful consideration. 133 S. Ct. at 2692. The Court discussed the unusual character of Section 3, but Section 2 is just as unusual and unprecedented. Never before has
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The State of Utah seems to suggest that merely by describing Section 2 of DOMA, the Windsor Court affirmed its validity. Def.’s Mot. Summ. J. at 48. But the constitutionality of Section 2 was not before the Court in Windsor, and the Windsor Court’s one line summary of what Section 2 purports to do is no more affirming of that provision’s validity than is the Court’s subsequent description, immediately thereafter, of what Section 3 of DOMA purports to do. Windsor, 133 S. Ct. at 2682-83. Nothing in Windsor suggests that Section 2, if challenged, would survive constitutional scrutiny.
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Congress passed a statute purporting to authorize the states to ignore a whole class of marriages. Moreover, in explaining why Section 3 was invalid, the Court in Windsor found that DOMA had the improper purpose and effect of treating lawfully married same-sex couples unequally— which is equally true of Section 2. In finding animus, the Court cited statements made in the House Report which apply equally to Section 2 as to Section 3. See id. at 2693. The Court also noted that the title of the statute itself evinced an improper purpose to discriminate, which applies equally to Section 2. In light of the Court’s analysis, it would be utterly anomalous to conclude that section 2 of DOMA was not equally infected with the animus that the Court found with respect to section 3 of DOMA. In any event, this Court need not reach the issue of Section 2’s validity here, because regardless of what Section 2 purports to authorize, this Court must decide whether Utah’s antirecognition laws satisfy the Fourteenth Amendment’s commands of due process and equal protection of the laws. No statute passed by Congress can exempt Utah from those fundamental requirements—among the most important provisions of our federal system since the Civil War. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 641 (1969) (“Congress may not authorize the States to violate the Equal Protection Clause”); Saenz v. Roe, 526 U.S. 489, 508 (1999) (“Although we give deference to congressional decisions and classifications, neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment.”) (internal citations omitted). Defendants’ argument is as baseless as the argument that Congress could have changed the result in Loving v. Virginia by enacting a statute providing: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of different races that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
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In sum, Defendants’ argument that Utah’s anti-recognition laws are justified by Section 2 of DOMA is utterly without merit. Congress has no power under the Full Faith and Credit Clause or otherwise to enact a statute enabling the states to avoid the requirements of the Fourteenth Amendment. CONCLUSION For the reasons stated above, Utah’s refusal to recognize the marriages of same-sex couples who lawfully married in other states violates basic due process and equal protection principles. Dated: November 29, 2013 Respectfully Submitted,

_________________________ Kathryn D. Kendell (5398) National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442 kkendell@nclrights.org Attorneys for Amicus Curiae the National Center for Lesbian Rights

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