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Lambda Legal Defense and Education Fund, Inc.

| Southern Regional Office


730 Peachtree Street NE, Suite 1070 | Atlanta, GA 30308-1210 | t. 404-897-1880 | f. 404-897-1884




VIA CM/ECF FILING

Molly C. Dwyer, Clerk of Court
Office of the Clerk
U.S. Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939

May 20, 2014

Re: Sevcik, et al., v. Sandoval, et al., Case No. 12-17668
Notice of Supplemental Authority Pursuant to Fed. R. App. P. 28(j) and Circuit
Rule 28-6

Dear Ms. Dwyer:

Plaintiffs-Appellants respectfully submit the enclosed supplemental authority. On
May 13, 2014, the United States District Court for the District of Idaho held that the State
of Idahos exclusion of same-sex couples from marriage violated both the federal
constitutional guarantees of due process and equal protection. Latta v. Otter, No. 1:13-
cv-00482-CWD, 2014 U.S. Dist. LEXIS 66417 (D. Idaho May 13, 2014). Latta supports
the following arguments in Plaintiffs-Appellants briefing (with the relevant docket
numbers and pages cited in parentheticals):

1. The exclusion of same-sex couples from marriage is subject to heightened
scrutiny.

a. First, it infringes upon the fundamental right to marry. Latta, 2014 U.S.
Dist. LEXIS 66417, at *28-40 (ECF No. 178-3 at 8-16).

b. Second, sexual orientation classifications require heightened scrutiny,
both because of this Courts holding to that effect in SmithKline
Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014), and
because such classifications bear all of the traditional hallmarks of a
suspect or quasi-suspect classification. Latta, 2014 U.S. Dist. LEXIS
66417, at *41-53 (ECF No. 20-3 at 48-62; ECF No. 178-3 at 19-27).

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Molly C. Dwyer, Clerk of Court
May 20, 2014
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2. The exclusion of same-sex couples from marriage is not rationally related


to a government interest in child welfare or justified by an interest in
focusing governmental resources on procreation. Latta, 2014 U.S. Dist.
LEXIS 66417, at *62-74 (ECF No. 178-3 at 33-46).

3. The exclusion of same-sex couples from marriage is not justified by
religious liberty. Latta, 2014 U.S. Dist. LEXIS 66417, at *77-79 (ECF No.
20-3 at 84-85).

4. The authority of states to restrict marriage is subject to compliance with the
U.S. Constitution. Latta, 2014 U.S. Dist. LEXIS 66417, at *74-77 (ECF
No. 178-3 at 12-13 n.6).

5. The summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972) (mem.), is
no longer binding because of doctrinal developments. 2014 U.S. Dist.
LEXIS 66417, at *22-28 (ECF No. 178-3 at 55-57).

6. Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014),
provides no support for upholding a discriminatory law, even if approved
by voters. 2014 U.S. Dist. LEXIS 66417, at *77-82 (ECF No. 20-3 at 70
n.38).

Respectfully submitted,

/s Tara L. Borelli

Tara L. Borelli
Counsel for Plaintiffs-Appellants

Enclosure
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Molly C. Dwyer, Clerk of Court
May 20, 2014
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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the Court
for the United States Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system on May 20, 2014.
I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the CM/ECF system.

s/ Tara L. Borelli

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