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May 21, 2014

Via Electronic Filing

Clerk of the Court
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Byron White U.S. Courthouse
1823 Stout Street
Denver, CO 80257

Re: Kitchen, et. al. v. Herbert, et. al., No. 13-4178
Fed. R. App. P. 28(j) Citation of Supplemental Authority

To the Clerk of the Court:

After oral argument in this appeal, the U.S. District Court for the District of
Oregon granted plaintiffs’ motion for summary judgment in Geiger v. Kitzhaber,
Nos. 6:13-cv-01834-MC, 6:13-cv-02256-MC, 2014 WL 2054264 (D. Ore. May 19,
2014). Additionally, the U.S. District Court for the Middle District of
Pennsylvania granted plaintiffs’ motion for summary judgment in Whitewood v.
Wolf, No. 1:13-cv-1861, 2014 WL 2058105 (M.D. Pa. May 20, 2014). Copies of
these decisions are attached and cited herein as “Geiger” and “Whitewood,”
respectively.
In Geiger, the court ruled that Oregon’s laws prohibiting marriage by same-
sex couples violate the Equal Protection Clause under the rational basis standard
because “[n]o legitimate state purpose justifies the preclusion of gay and lesbian
couples from civil marriage,” Geiger at *14, an argument made on pages 63-86 of
Plaintiffs’-Appellees’ Brief (“Brief”).
In Whitewood, the court ruled that Pennsylvania’s laws excluding same-sex
couples from marriage violate both the Due Process and Equal Protection Clauses
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Clerk of the Court
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
May 21, 2014
Page 2


of the Fourteenth Amendment. Whitewood at Conclusion at *15; Brief at 28-86.
Further pertinent conclusions of these courts appear below:
1. “[T]he fundamental right to marry as protected by the Due Process
Clause of the Fourteenth Amendment to the United States Constitution
encompasses the right to marry a person of one's own sex.”
Whitewood at *9; Brief at 28-39.

2. “Pennsylvania's non-recognition law robs those of the Plaintiffs who
are already married of their fundamental liberty interest in the legal
recognition of their marriages in Pennsylvania.” Whitewood at *9;
Brief at 87-95.

3. “[A]ll four factors weigh in favor of a finding that gay and lesbian
persons compose a class that is subject to heightened scrutiny.”
Whitewood at *14, Brief at 48-55.

4. “Creating second-tier families does not advance the state's strong
interest in promoting and protecting all families.” Geiger at *11; Brief
at 39-48, 74-81.

5. “Expanding the embrace of civil marriage to gay and lesbian couples
will not burden any legitimate state interest. The attractiveness of
marriage to opposite-gender couples is not derived from its
inaccessibility to same-gender couples.” Gieger at *14; Brief at 63-86.

Respectfully submitted,


/s/ Peggy A. Tomsic

PAT/eg
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2014 WL 2054264
Only the Westlaw citation is currently available.
United States District Court,
D. Oregon.
Deanna L. GEIGER and Janine M. Nelson: Robert
Duehmig and William Grieser, Plaintiffs,
v.
John KITZHABER, in his official capacity as
Governor of Oregon; Ellen Rosenblum, in her
official capacity as Attorney General of Oregon;
Jennifer Woodward, in her official capacity as
State Registrar, Center for Health Statistics,
Oregon Health Authority, and Randy Walruff, in
his official capacity as Multnomah County
Assessor, Defendants.
Paul Rummell And Benjamin West; Lisa
Chickadonz and Christine Tanner; Basic Rights
Education Fund, Plaintiffs,
John Kitzhaber, in his official capacity as
Governor of Oregon; Ellen Rosenblum, in her
official capacity as Attorney General of Oregon;
Jennifer Woodward, in her official capacity as
State Registrar, Center for Health Statistics,
Oregon Health Authority, and Randy Walruff, in
his official capacity as Multnomah County
Assessor, Defendants.
Nos. 6:13–cv–01834–MC, 6:13–cv–02256–MC. |
Signed May 19, 2014.
Attorneys and Law Firms
Lake James H. Perriguey, Law Works, LLC, Lea Ann
Easton, Dorsay & Easton LLP, Portland, OR, for
Plaintiffs.
Anna M. Joyce, Oregon Department of Justice, Salem,
OR, Mary Williams, Sheila H. Potter, Oregon Department
of Justice, Katharine Von Ter Stegge, Jenny M. Madkour,
Portland, OR, for Defendants.
Opinion

OPINION
McSHANE, District Judge.
*1 The plaintiffs include four Oregon couples seeking
marriage in Multnomah County. Although they meet the
legal requirements of civil marriage in all other respects,
their requests, for marriage licenses have been or would
be denied because each couple is of the same gender. I am
asked to consider whether the state’s constitutional and
statutory provisions (“marriage laws”) that limit civil
marriage to “one man and one woman” violate the United
States Constitution.
1
Because Oregon’s marriage laws
discriminate on the basis of sexual orientation without a
rational relationship to any legitimate government
interest, the laws violate the Equal Protection Clause of
the Fourteenth Amendment to the United States
Constitution.


THE PARTIES
All of the plaintiffs
2
share in the characteristics that we
would normally look to when we describe the ideals of
marriage and family. They present in the record as loving
and committed couples who have established long-term
relationships. Each has solemnized that relationship in the
presence of their families and friends. One couple legally
married in Canada, and others temporarily obtained
marriage licenses in Multnomah County in 2004. Three of
the four couples are parents, and are involved in their
children’s schools and activities. They support each other
financially and emotionally and, by all accounts, their
lives have become more meaningful in the single life that
they share together.

All of the plaintiffs have worked in Oregon to support
each other and their children. They are a highly educated
and productive group of individuals. Many of the
plaintiffs work in the field of medicine and the health
sciences. Mr. Griesar is a teacher. Mr. Rummell is a
veteran of the United States Air Force. They pay taxes.
They volunteer. They foster and adopt children who have
been neglected and abused. They are a source of stability
to their extended family, relatives, and friends.

Despite the fact that these couples present so vividly the
characteristics of a loving and supportive relationship,
none of these ideals we attribute to marriage are spousal
prerequisites under Oregon law. In fact, Oregon
recognizes a marriage of love with the same equal eye
that it recognizes a marriage of convenience. It affords the
same set of rights and privileges to Tristan and Isolde that
it affords to a Hollywood celebrity waking up in Las
Vegas with a blurry memory and a ringed finger. It does
not, however, afford these very same rights to gay and
lesbian couples who wish to marry within the confines of
our geographic borders.
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The defendants include the State Registrar, the Governor,
and the Attorney General of Oregon, as well as the
Assessor for Multnomah County. The defendants concede
that Oregon’s marriage laws banning same-gender
marriage are unconstitutional and legally indefensible, but
state they are legally obligated to enforce the laws until
this court declares the laws unconstitutional.
3
The case, in
this respect, presents itself to this court as something akin
to a friendly tennis match rather than a contested and
robust proceeding between adversaries.


BACKGROUND
I. Same–Gender Marriage in Oregon and Measure 36
*2 Article I, § 20 of the Oregon Constitution prohibits
granting privileges or immunities to any citizen or class of
citizens that are not equally available on the same terms to
all citizens. In 1998, recognizing that same-gender
couples were not permitted to marry, the Oregon Court of
Appeals concluded Article I, § 20 of the Oregon
Constitution prohibited the state from denying insurance
benefits to unmarried domestic partners of homosexual
employees. Tanner v. Oregon Health Sci. Univ., 157
Or.App. 502, 525, 971 P.2d 435. The state responded by
providing benefits to same-gender couples who are able to
demonstrate they share a committed relationship similar
to a marital relationship.

During this same period, challenges regarding the, rights
available to same-gender couples began to appear in the
national spotlight. In 2003, the Supreme Judicial Court of
Massachusetts concluded that Massachusetts’s
same-gender marriage ban violated their state
constitution. Goodridge v. Dep’t of Pub. Health, 440
Mass. 309, 798 N.E.2d 941, 969. With that ruling,
Massachusetts became the first state to legalize
same-gender marriage.

On March 3, 2004, Multnomah County determined that its
failure, to issue marriage licenses to same-gender couples
violated Article I, § 20 of the Oregon Constitution. Li v.
State, 338 Or. 376, 383–84, 110 P.3d 91 (2005). In the
following weeks, approximately 3000 gay and lesbian
couples received marriage licenses in Multnomah County.
Id. at 384, 110 P.3d 91. At the Governor’s direction, the
State Registrar refused to register the same-sex marriages
and several same-gender couples brought a legal
challenge to decide the inclusivity of Oregon’s marriage
laws. Id.

Before the Supreme Court of Oregon weighed in on the
issue, Oregon voters provided their independent judgment
on the question by approving a 2004 ballot initiative
known as Measure 36. That measure amended the state
constitution to define marriage as a union composed of
“one man and one woman.” Or. Const. art. 15, § 5A.
Measure 36 embedded constitutionally what the Oregon
Supreme Court would later conclude the state’s statutes
had already required. Li, 338 Or. at 386, 110 P.3d 91
(“[A]lthough nothing .... expressly states that marriage is
limited to opposite-sex couples, the context ... leaves no
doubt that, as a statutory matter, marriage in Oregon is so
limited.”). Nearly a year after Multnomah County began
issuing marriage licenses to same-gender couples, those
licenses were deemed invalid. Id. at 398, 110 P.3d 91.

In 2007, the Oregon State Legislature passed the Oregon
Family Farness Act, allowing same-gender couples to
register their domestic partnerships to receive certain state
benefits. Oregon Family Fairness Act, 2007 Or. Laws, ch.
99, § 2 (codified at Or.Rev.Stat. § 106.305). Domestic
partnerships provided “more equal treatment of gays and
lesbians and their families,” § 106.305(6), by granting
domestic partners similar rights and privileges to those
enjoyed by married spouses, § 106.305(5). The
Legislature acknowledged, however, that domestic
partnerships did not include the magnitude of rights
inherent in the definition of marriage. § 106.305(7)
(noting “that numerous distinctions will exist between
these two legally recognized relationships”). In the
declarations submitted to this court, the plaintiffs maintain
domestic partnerships have contributed greater confusion
and expense to the lives of gay and lesbian couples and
their families.

*3 Last summer, the United States Supreme Court
declared § 3 of the Defense Against Marriage Act
(DOMA) unconstitutional. United States v. Windsor,
–––U.S. ––––, –––– – ––––, 133 S.Ct. 2675, 2695–96,
186 L.Ed.2d 808 (2013). As discussed below, DOMA
defined marriage as a “union between one man and one
woman,” 1 U.S.C. § 7 (2012), thereby prohibiting the
federal government from extending marriage benefits to
legally wed, same-gender spouses, Windsor, 133 S.Ct. at
2683. The Court noted marriage regulations were
traditionally a matter of state concern and that New York
sought to protect same-gender couples by granting them
the right to marry. DOMA violated due process and equal
protection principles because it impermissibly sought to
injure a class of persons New York specifically sought to
protect. Windsor, 133 S.Ct. at 2693. The Court concluded
“[t]he Act’s demonstrated purpose is to ensure that if any
State decides to recognize same-sex marriages, those
unions will be treated as second-class marriages for
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purposes of federal law.” Id. at 2693–94.

Following the landmark decision in Windsor, Oregon
concluded its own agencies must recognize same-gender
marriages lawfully entered into in other jurisdictions.
State Defs.’ Answer & Affirmative Defenses to Pls.’ Am.
Compl. Ex. A, ECF No. 58–1.
4
The state also joined an
amicus curiae brief to the Ninth Circuit Court of Appeals,
which has been asked to invalidate a same-gender
marriage ban in Nevada. Brief of Massachusetts, et al., as
Amici Curiae in Supp. Mot.App. 2, Sevcik v. Sandoval
(No. 12–17668). In lending its support, the state endorsed
the contention that “same-sex couples form families, raise
children, and avail themselves of the benefits and abide
by the obligations of marriage in the same manner as
different-sex couples.” Id. In so doing, the state
effectively acknowledged that its legitimate interest in
sustaining both families and communities would be
furthered if gay -and lesbian couples were able to marry.
Id.


II. The Harm Caused to Plaintiffs by the State’s
Marriage Laws
The state’s marriage laws impact the plaintiffs in a myriad
of ways. The laws frustrate the plaintiffs’ freedom to
structure a family life and plan for the future. Mr.
Rummell did not receive a low-interest veteran loan to aid
in purchasing a home because his income was not
considered together with Mr. West’s income. Ms. Geiger
had to ask her employer to extend spousal relocation
benefits to Ms. Nelson; a benefit that automatically vests
with married couples. When Ms. Chickadonz gave birth
to her and Ms. Tanner’s children, they encumbered
adoption expenses in order for Ms. Tanner to be the legal
parent of her own children.

Domestic partnerships pledged to gay and lesbian couples
rights and responsibilities approximating those afforded to
married couples. Or.Rev.Stat. §§ 106.340(1)-(4). The
plaintiffs submit that time has tarnished the promise of
domestic partnerships. The plaintiffs explain that a
general confusion persists regarding domestic
partnerships. They encounter institutional obstacles when
lawyers, courts, and health care and funerary service
providers are unfamiliar with the rights that domestic
partners are entitled to under the law. Domestic partners
must draft advance medical directives to ensure they will
be able to make important medical decisions on their
partner’s behalf should the necessity arise. See §
127.635(2). Such rights and protections pass
automatically to married couples. § 127.635(2)(b).
Likewise, domestic partners must draw up legal devices
to imitate marriage’s estate-planning benefits. See §§
112.025, .035. Domestic partners are not guaranteed the
same treatment at retirement as married couples. §§
106.340(6)-(8).

*4 Oregon’s marriage laws foreclose its same-gender
couples (even those registered as domestic partners) from
enjoying newly available federal recognition and benefits.
They cannot file joint federal income tax returns. Rev.
Rul. 13–17, 2013–38 I.R.B. 204. Instead, unmarried gay
and lesbian couples pay for costly measures that account
for their mutual incomes, expenses, and assets. Decl. Clift
4, ECF No. 56. Oregon’s marriage laws also foreclose the
pathway to citizenship that a non-national can access by
import of their marriage to a United States citizen.
Employer-provided health insurance benefits covering
unwed partners is federally taxable income. See 26 U.S.C.
§§ 105(b), 106(b). Establishing joint ownership over an
unwed couple’s assets may trigger federal gift taxation.
See Rev. Rul. 13–17 at 203; § 2503(b). Domestic
partnership dissolution is taxable, unlike in marriage, see
§ 1041, as are the spousal-support payments arising from
such dissolutions, see § 71. As compared to divorce,
federally qualified retirement plans are indivisible among
separating domestic partners. See I.R.S. Notice 2008–30,
2008–12 I.R.B. 638. Gay and lesbian couples waiting for
the right to marry in Oregon risk a surviving partner being
found ineligible for a deceased partner’s Social Security
benefits. See Soc. Sec. Admin., SSA Pub. No. 05–10084,
Social Security: Survivors Benefits 5 (2013). Financial
aid packages for the children of gay and lesbian families
are calculated only on the basis of one parent’s income.
See § 1087nn(b).

Oregon’s marriage laws weigh on the plaintiffs in ways
less tangible, yet no less painful. The laws leave the
plaintiffs and their families feeling degraded, humiliated,
and stigmatized. Plaintiffs consider the time, energy, and
sacrifice they devote to building a meaningful life with
their loved ones, but find their efforts less worthy in the
eyes of the law. They face a tiered system of recognition
that grants greater legal status to married felons, deadbeat
parents, and mail-order brides. They see no rationale for
such treatment, and are angered by what they perceive as
state-sanctioned discrimination against them.
Accordingly, the plaintiffs request that the state’s laws
withholding civil marriage from same-gender couples be
found unconstitutional.


STANDARD OF REVIEW
“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
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fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a).


DISCUSSION
I. A State’s Right to Define Marriage within
Constitutional Bounds
[M]arriage is often termed ... a civil contract ... [but] it
is something more than a mere contract.... It is an
institution, in the maintenance of which in its purity the
public is deeply interested, for it is the foundation of
the family and of society, without which there would be
neither civilization nor progress.
*5 Maynard v. Hill, 125 U.S. 190, 210–11, 8 S.Ct. 723,
31 L.Ed. 654 (1888).
5
Society’s significant interest in
marriage is manifest by a state’s “rightful and
legitimate concern” for its citizens’ marital statuses.
Williams v. North Carolina, 317 U.S. 287, 298, 63
S.Ct. 207, 87 L.Ed. 279 (1942); see also Li, 338 Or. at
391–92, 110 P.3d 91 (quoting Dakin v. Dakin, 197 Or.
69, 72, 251 P.2d 462 (1952) (“The marital relationship
[is] ‘one in which the state is deeply concerned and
over which it exercises a jealous dominion.’ ”). As the
state eloquently notes:
Simply put, marriage matters. It
matters not only for the
individuals who decide to enter
into the civil union, but also for
the state. This is why the state
links so many rights and
protections to the decision to
marry. Strong, stable marriages
create unions in which children
may be raised to become healthy
and productive citizens, in which
family members care for those
who are sick or in need and
would otherwise have to rely on
government assistance, and
through which community is
built and strengthened.
State Defs.’ Resp. Mot. Summ. J. 1, ECF No. 64.
A state’s concern in regulating marriage includes the
power to decide what marriage is and who may enter into
it. Windsor, 133 S.Ct. at 2691. This principal role reflects
the state governments’ longstanding monopoly over
marital relations, an arrangement prevailing even at the
time of the Federal Constitution’s adoption. Id.

The federal government defers to state marriage authority,
accepting that marital policies may vary from state to
state. Id. Those variations reflect the dynamics of our
federal system, which empowers citizens to “seek a voice
in shaping the destiny of their own times,” Bond v. United
States, –––U.S. ––––, ––––, 131 S.Ct. 2355, 2364, 180
L.Ed.2d 269 (2011), and to “form [ ] a consensus
respecting the way [they] treat each other in their daily
contact and constant interaction with each other,”
Windsor, 133 S.Ct. at 2692. Although states have wide
latitude in regulating marriage, any such laws must abide
by the Constitution. Loving v. Virginia, 388 U.S. 1,
11–12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).

The Constitution commands that no state may “deny to
any person ... the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. This pledge of equal protection
ensures “that all persons similarly circumstanced shall be
treated alike.” F.S. Royster Guano Co. v. Virginia, 253
U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920). The
clause presumes that one class of citizens will remain
entitled to the same benefits and burdens as the law
affords to other classes. Yet, this presumption is tempered
by “the practical necessity that most legislation classifies
for one purpose or another,” granting a degree of favor to
some and disadvantage to others. Romer v. Evans, 517
U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).
The courts balance the constitutional principle with
practical reality by tolerating laws that classify groups and
individuals only if such laws are rationally related to a
legitimate state purpose. Id.

States can and do rationally regulate marriage. A state
may, for example, permit eighteen year olds to marry, but
not twelve year olds. See Jonathan Todres, Maturity, 48
Hous. L.Rev. 1107, 1143 (2012). A state may not,
however, prevent a “white” adult from marrying a
“non-white” adult, Loving, 388 U.S. at 11 (overturning
one such anti-miscegenation law in Virginia), nor may it
withhold marriage from either the destitute, Zablocki v.
Redhail, 434 U.S. 374, 387–88, 98 S.Ct. 673, 54 L.Ed.2d
618 (1978) (overturning a Wisconsin law conditioning
marriage on a non-custodial parent’s ability to satisfy
existing child-support obligations), or the incarcerated,
Turner v. Safley, 482 U.S. 78, 96–99, 107 S.Ct. 2254, 96
L.Ed.2d 64 (1987) (overturning Missouri’s requirement
that inmates receive a warden’s permission to wed),
superseded by statute, Religious Land Use and
Institutionalized Persons Act of 2000, Pub.L. No.
106–274, § 3, 114 Stat. 804. One lesson to borrow from
these and similar precedents is that laws regulating
marriage must advance legitimate state interests, and not a
mere desire to harm a particular class of its citizens.
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II. The Windsor Decision and its Applicability to the
Plaintiffs’ Claims
*6 As noted, DOMA was a federal attempt to regulate
marriage. That law defined “marriage” and “spouse” to
encompass opposite-gender couples only. See 1 U.S.C. §
7. The definition’s effect was to make legally married
same-gender couples less equal than married
opposite-gender couples by depriving the former of
numerous federal marital benefits. Windsor, 133 S.Ct. at
2694. That result frustrated New York’s rightful decision
to confer the dignity and privilege of marriage upon gay
and lesbian couples. Id. at 2695–96. In striking down the
federal definition, the Supreme Court explained that the
law’s “principal purpose and ... necessary effect” was “to
demean” legally married gay and lesbian couples. Id. at
2695. “[N]o legitimate purpose” behind DOMA could
overcome such injury. Id. at 2696.

The case before me is not a reproduction of Windsor.
There, the Supreme Court invalidated a federal act that
impinged New York’s ability to afford gay and lesbian
couples the full entitlements of marriage. Id. at 2693
(“[DOMA] ... impose[s] a disadvantage, a separate status
... upon all who enter into same-sex marriages made
lawful by the unquestioned authority of the States.”).
Here, the plaintiffs challenge not federal but state law,
one which reserves civil marriage to the exclusive
enjoyment of opposite-gender couples. This and similar
state marriage laws elsewhere are simply beyond the
ambit of the Windsor ruling. See Bishop v. United States
ex rel. Holder, 962 F.Supp.2d. 1252, 1278
(N.D.Okla.2013) (“Windsor does not answer whether a
state may prohibit same-sex marriage in the. first
instance.”).

Windsor may be distinguished from the present case in
several respects. Yet, recounting such differences will not
detract from the underlying principle shared in common
by that case and the one now before me. The principle is
one inscribed in the Constitution, and it requires that the
state’s marriage laws not “degrade or demean” the
plaintiffs in violation of their rights to equal protection.
See Windsor, 133 S.Ct. at 2695.


III. The State’s Marriage Laws Violate the Plaintiffs’
Rights to Equal Protection
As discussed above, although states may regulate
marriage, such laws must pass constitutional muster.
Plaintiffs argue the state’s marriage laws violate their
rights to equal protection. When analyzing a law under
the Equal Protection Clause of the Fourteenth
Amendment, the court first determines the appropriate
level of scrutiny to apply.

Strict scrutiny, the most exacting level of scrutiny, is
reserved for “suspect” classifications such as race or
national origin. Johnson v. California, 543 U.S. 499,
505–06, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005).
Because suspect classifications “raise special fears that
they are motivated by an invidious purpose,” courts must
engage in a “searching judicial inquiry” to ferret out any
illegitimate uses of such classifications. Id. Under this
level of review, the government has the burden of
demonstrating the classifications are narrowly tailored to
further a compelling government interest. Id . at 505.

*7 Other classifications, such as those based on gender or
illegitimacy, are subject to heightened scrutiny. City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,
440–41, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Under
this level of review, the classification must be
“substantially related to a sufficiently important
government interest.” Id. at 441.

Most classifications are presumed to be valid and receive
less-exacting judicial scrutiny, known as rational basis
review.
Under rational basis review, the
Equal Protection Claus is satisfied
if: (1) there is a plausible policy
reason for the classification, (2) the
legislative facts on which the
classification is apparently based
rationally may have been
considered to be true by the
governmental decisionmaker, and
(3) the relationship of the
classification to its goal is not so
attenuated as to render the
distinction arbitrary or irrational.
Bowers v. Whitman, 671 F.3d 905, 917 (9th Cir.2012)
(quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct.
2326, 120 L.Ed.2d 1 (1992)) (internal quotations
omitted).


A. Discriminatory Classification.
Plaintiffs argue the state’s marriage laws discriminate
based on gender, and therefore must receive heightened
scrutiny. This argument reasons that because men may
not marry other men, and women may not marry other
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women, the classification is necessarily one based on
gender. Stated another way, if either person in a specific
couple happened to be of the other gender, the couple
could in fact marry. Because the classification impacts
each couple based solely on the gender of each person,
plaintiffs argue the classification must be categorized as
one based on gender. I disagree.

The state’s marriage laws discriminate based on sexual
orientation, not gender. In fact, the ban does not treat
genders differently at all. Men and women are prohibited
from doing the exact same thing: marrying an individual
of the same gender. The ban does not impact males and
females differently. Instead, the state’s marriage laws
classify same-gender couples differently than
opposite-gender couples. While opposite-gender couples
may marry a partner of their choice, same-gender couples
may not.

Plaintiffs argue the Supreme Court has rejected
government arguments based on “equal application” of
laws that discriminate based on suspect classes. See
Loving, 388 U.S. at 8–9. The discriminatory laws in
Loving, however, are not applicable to Oregon’s marriage
laws. First, the Court specifically noted the
anti-miscegenation laws at issue there—because they
involved racial classifications—could not survive an
“equal application” explanation. Id. Second, the
anti-miscegenation laws there were “invidious racial
discriminations,” with proffered purposes of “preserv[ing]
the racial integrity of its citizens” and preventing “the
corruption of bldod[.]” Id. at 7 (quoting Nairn v. Nairn,
197 Va. 80, 87 S.E.2d 749, 756 (Va.1955)).

There is no such invidious gender-based discrimination
here. The state’s marriage laws clearly were meant to, and
indeed accomplished the goal of, preventing same-gender
couples from marrying. The targeted group here is neither
males nor females, but homosexual males and
homosexual females. Therefore, I conclude the state’s
marriage laws discriminate on the basis of sexual
orientation, not gender. See Sevcik, 911 F.Supp.2d at 1005
(analyzing a similar Nevada law, the court concluded the
law was not directed toward any one gender and did not
affect one gender in a way demonstrating any
gender-based animus, but was intended to prevent
homosexuals from marrying).


B. Applicable Level of Scrutiny
*8 That the state’s marriage laws discriminate based on
sexual orientation does not answer the question of what
level of scrutiny applies. For the past quarter century,
laws discriminating on the basis of sexual orientation
received rational basis review in the Ninth Circuit. High
Tech Gays v. Def. Indus. Sec. Clearance Off, 895 F.2d
563, 574 (9th Cir.1990). In High Tech Gays, a class of
plaintiffs challenged the Department of Defense’s policy
of “refusing to grant security clearances to known or
suspected gay applicants” on equal protection grounds. Id.
at 565. The court had to determine whether homosexuals
were a “suspect” or “quasi-suspect” class justifying the
classifications to heightened review. The court inquired
whether homosexuals:
1) Have suffered a history of
discrimination; 2) exhibit obvious
immutable, or distinguishing
characteristics that define them as a
discrete group; and 3) show that
they are a minority or politically
powerless, or alternatively show
that the statutory classification at
issue burdens a fundamental right.
Id. at 573. The court concluded that although
homosexuals suffered a history of discrimination, they did
not meet the other criteria required of suspect classes.
Therefore, classifications based on sexual orientation
received rational basis review. Id. at 574.

A Ninth Circuit panel recently considered whether High
Tech Gays remains good law in light of Windsor.
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471,
480–84 (9th Cir.2014). After noting that Windsor was
silent as to the precise level of scrutiny applied to the
sexual orientation discrimination at issue there, the
SmithKline court looked at what Windsor “actually did” in
analyzing that equal protection claim. Id. at 480. After a
thorough and persuasive analysis, the court concluded:
In its words and its deed, Windsor
established a level of scrutiny for
classifications based on sexual
orientation that is unquestionably
higher than rational basis review. In
other words, Windsor requires that
heightened scrutiny be applied to
equal protection claims involving
sexual orientation.
Id. at 481.

No mandate issued from SmithKline and, although neither
party requested a rehearing en banc, at least one active
judge of the Ninth Circuit made a sua sponte call for a
rehearing en banc. March 27, 2014 Order. (No. 11–17357,
ECF No. 88). “An appellate court’s decision is not final
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until its mandate issues.” Beardslee v. Brown, 393 F.3d
899, 901 (9th Cir.2004); accord United States v. Ruiz, 935
F.2d 1033, 1037 (9th Cir.1991) (citation and internal
quotations omitted) (“[T]he legitimacy of an expectation
of finality of an appellate order depends on the issuance
or not of the mandate required to enforce the order.”).
Absent a mandate’s issuance, the circuit “retains
jurisdiction of the case and may modify or rescind its
opinion.” Ruiz, 935 F.2d at 1037; accord Carver v.
Lehman, 558 F.3d 869, 878 (9th Cir.2009).

*9 In other words, the panel’s decision in SmithKline is
not yet a truly final and binding decision. The opinion
may be modified, rescinded, or receive a majority vote for
en banc review. I could independently conclude the
Supreme Court did what SmithKline persuasively
concluded it did. See Miller v. Gammie, 335 F.3d 889,
900 (9th Cir.2003) (circuit panels and district courts may
reject a prior panel’s opinion when that opinion is
“effectively overruled” by higher court). That is
unnecessary here, as the state’s marriage laws cannot
withstand even the most relaxed level of scrutiny.


C. Rational Basis Review
As described above, it is beyond question that Oregon’s
marriage laws place burdens upon same-gender couples
that are not placed upon opposite-gender couples. This
classification implicates the Equal Protection Clause.
Romer v. Evans, 517 U.S. 620, 633, 116 S.Ct. 1620, 134
L.Ed.2d 855 (1996) (“A law declaring that in general it
shall be more difficult for one group of citizens than for
all others to seek aid from the government is itself a
denial of equal protection of the laws in the most literal
sense.”). The Equal Protection Clause does not allow
classifications drawn solely for the purpose of
disadvantaging a particular group intentionally singled out
for unequal treatment. Id. For this reason, courts inquire
whether the classification is rationally related to a
legitimate government interest. Id. at 632–33. Courts
presume the classification is valid, declaring it
unconstitutional only when “the varying treatment of
different groups or persons is so unrelated to the
achievement of any combination of legitimate purposes
that we can only conclude that the legislature’s actions
were irrational.” Vance v. Bradley, 440 U.S. 93, 97, 99
S.Ct. 939, 59 L.Ed.2d 171 (1979). That a majority of
Oregon voters enacted Measure 36 in order to
constitutionally embed such classifications makes no
difference to this analysis. Romer, 517 U.S. at 635.

As noted by the state, justifications offered in enacting
Measure 36 are similar to those offered by other states in
defending other bans on same-gender marriage. One such
justification is protecting traditional definitions of
marriage. Another is protecting children and encouraging
stable families. As discussed below, only the latter
justification is a legitimate state interest. Especially when
viewed in light of the state’s other official policies, many
of which are unique to Oregon, the state’s ban on
same-gender marriage is clearly unrelated to protecting
children and encouraging stable families. The marriage
laws place the plaintiffs and other gay and lesbian couples
seeking to marry in Oregon at a disadvantage, and the
laws do so without any rationally related government
purpose.


i. Tradition
Marriage has traditionally been limited to opposite-gender
couples. That the traditional definition of marriage
excluded same-gender couples, however, does not end the
inquiry. See Heller v. Doe, 509 U.S. 312, 326, 113 S.Ct.
2637, 125 L.Ed.2d 257 (1993) (“Ancient lineage of a
legal concept does not give it immunity from attack for
lacking a rational basis.”). If tradition alone was sufficient
to withstand rational basis review, the right to equal
protection would be quite hollow. “Tradition” would
simply turn rational basis review into a rubber stamp
condoning discrimination against longstanding,
traditionally oppressed minority classes everywhere.
Limiting civil marriage to opposite-gender couples based
only on a traditional definition of marriage is simply not a
legitimate purpose. Golinski v. Off. of Pers. Mgmt., 824
F.Supp.2d 968, 998 (N.D.Cal.2012) (“[T]he argument that
the definition of marriage should remain the same for the
definition’s sake is a circular argument, not a rational
justification. Simply stating what has always been does
not address the reasons for it. The mere fact that prior
law, history, tradition, the dictionary and the Bible have
defined a term does not give that definition a rational
basis, it merely states what has been.”).

*10 Certain traditions may reflect personal religious and
moral beliefs. Such beliefs likely informed the votes of
many who favored Measure 36. However, as expressed
merely a year before Measure 36’s passage, “[m]oral
disapproval of a group cannot be a legitimate
governmental interest under the Equal Protection Clause
because legal classifications must not be ‘drawn for the
purpose of disadvantaging the group burdened by the
law.’ “ Lawrence v. Texas, 539 U.S. 558, 583, 123 S.Ct.
2472, 156 L.Ed.2d 508 (2003) (O’Connor, J., concurring
in the judgment) (quoting Romer, 517 U.S. at 633). That
year, the Supreme Court concluded a Texas law
criminalizing private, consensual, sexual acts between
two adults was unconstitutional. The Court explicitly
adopted Justice Stevens’ dissent in Bowers v. Hardwick,
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478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140
(1986), another case involving laws criminalizing
homosexual conduct. Lawrence, 539 U.W. 577–78. Over
a vigorous dissent from Justice Scalia, the Court adopted
Justice Stevens’ earlier conclusion that “the fact that 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 [.]” Id. at 577.
This remains the law of the land, that mere moral
disapproval of a particular group of citizens is not a
legitimate reason for intentionally withholding rights and
benefits from that group.

To be clear, this case deals with civil marriage. The state
recognizes that marriage is a civil contract. Or.Rev.Stat. §
106.010. It is that right, to enter into a civil contract of
marriage, and the right to share in the benefits and
obligations flowing from that civil contract, that are at
issue here. Judge John G. Heyburn II of the Western
District of Kentucky, one of an ever-increasing—and so
far unanimous—number of state and federal judges to
strike down similar state bans following Windsor, put it
very well:
Our religious and social traditions are vital to the fabric
of society. Though each faith, minister, and individual
can define marriage for themselves, at issue here are
laws that act outside that protected sphere. Once the
government defines marriage and attaches benefits to
that definition, it must do so constitutionally. It cannot
impose a traditional or faith-based limitation upon a
public right without a sufficient justification for it.
Assigning a religious or traditional rationale for a law,
does not make it constitutional when that law
discriminates against a class of people without other
reasons.
The beauty of our Constitution is that it accommodates
our individual faith’s definition of marriage while
preventing the government from unlawfully treating us
differently. This is hardly surprising since it was
written by people who came to America to find both
freedom of religion and freedom from it.
Bourke v. Beshear, 3:13–750, 2014 WL 556729, at *10
(Feb. 12, 2014).

Overturning the discriminatory marriage laws will not
upset Oregonians’ religious beliefs and freedoms.
6
As
tradition alone does not provide a legitimate state interest
supporting classifications based on sexual orientation, I
turn to other possible justifications for the state’s marriage
laws.


ii. Protecting Children and Encouraging Stable
Families
*11 Supporters of Measure 36, and defenders of similar
marriage laws throughout the country, often turn to
variations of the state’s interest in protecting children and
families in supporting such laws. These arguments range
from state interests in encouraging responsible and
“natural” procreation to arguments that children fare
better in opposite-gender families. Although protecting
children and promoting stable families is certainly a
legitimate governmental interest, the state’s marriage laws
do not advance this interest—they harm it.

Although the state has a legitimate interest in promoting
stable families, its interest does not stop with families of
opposite-gender couples. By enabling gay and lesbian
couples to enter domestic partnerships, the state
acknowledged the value and importance such families can
provide. Specifically, the Oregon Legislature, in enacting
the Oregon Family Fairness Act, found that “[t]his state
has a strong interest in promoting stable and lasting
families, including the families of same-sex couples and
their children. All Oregon families should be provided
with the opportunity to obtain necessary legal protections
and status and the ability to achieve their fullest
potential.” § 106.305(4). The legislature also found that
“[m]any gay and lesbian Oregonians have formed lasting,
committed, caring and faithful relationships with
individuals of the same sex, despite long-standing social
and economic discrimination. These couples live together,
participate in their communities together and often raise
children and care for family members together, just as do
couples who are married under Oregon law.” §
106.305(3). With this finding, the legislature
acknowledged that our communities depend on, and are
strengthened by, strong, stable families of all types
whether headed by gay, lesbian, or straight couples.

Yet, because the state is unable to extend to
opposite-gender relationships the full rights, benefits, and
responsibilities of marriage, it is forced to burden,
demean, and harm gay and lesbian couples and their
families so long as its current marriage laws stand.
Although the state created domestic partnerships to
“ensure[e] more equal treatment of gays and lesbians and
their families,” § 106.305(6), it also recognized domestic
partnerships are not equal to civil marriage, § 106.305(7).
Recognizing domestic partnerships are not equal to
marriage simply states the obvious. In Windsor, Justice
Kennedy recently pointed out rather dramatically these
inequalities. Justice Kennedy recognized that prohibiting
same-gender couples from joining in marriage
“humiliates” children being raised by same-gender
couples and “makes it even more difficult for the children
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to understand the integrity and closeness of their own
family and its concord with other families in their
community and their daily lives.” 133 S.Ct. at 2694.
Creating second-tier families does not advance the state’s
strong interest in promoting and protecting all families.

*12 Nor does prohibiting same-gender marriage further
Oregon’s interest in protecting all children. For example,
the state’s interest in protecting children concerns more
than just those children created in wedlock. § 109.060
(relationship between child and parents is the same
regardless of parents’ marital status). The state has an
interest in protecting all children, including adopted
children. § 109.050 (relationship of adoptive child and
adoptive parents is the same as would exist if the child
had been the adoptive parents’ biological child). And the
state does not treat “naturally and legitimately conceived”
children any different than children conceived in other
ways. § 109.243 (rights between a child produced by
artificial insemination and a mother’s husband are the
same as those that exist in a naturally conceived birth).
When the-state seeks homes to provide security and
support for vulnerable children, it does so without asking
if the adults in such households are married, same-gender
partnered, or single. St. Defs.’ Resp. Mot. Summ. J. 22,
ECF No. 64. The state’s policies clearly demonstrate its
interest in supporting all children, including children
raised by same-gender couples.

The above policies make perfect sense. Oregon’s policies
accept that children fare the same whether raised by
opposite-gender or same-gender couples. See DeBoer v.
Snyder, No. 12–10285, 2014 WL 1100794, at *12
(E.D.Mich. March 21, 2014) (noting approximately 150
sociological and psychological studies confirm “there is
simply no scientific basis to conclude that children raised
in same-sex households fare worse than those raised in
heterosexual households.”); De Leon v. Perry, No.
SA–13–CA–00982–OLG, 2014 WL 715741, at *15
(W.D.Tex. Feb.26, 2014) (“[S]ame-sex couples can be
just as responsible for a child’s welfare as the countless
heterosexual couples across the nation.”); Bostic v.
Rainey, 970 F.Supp.2d 456, 479 (E.D.Va.2014)
(“Same-sex couples can be just as responsible for a
child’s existence as the countless couples across the
nation who choose, or are compelled to rely upon,
enhanced or alternative reproduction methods for
procreation.”); Perry v. Schwarzenegger, 704 F.Supp.2d
921, 980 (N.D.Cal.2010) (finding “[r]he gender of a
child’s parent is not a factor in a child’s adjustment. The
sexual orientation of an individual does not determine
whether that individual can be a good parent. Children
raised by gay or lesbian parents are as likely as children
raised by heterosexual parents to be healthy, successful
and well-adjusted. The research supporting this
conclusion is accepted beyond serious debate in the field
of developmental psychology.”). The realization that
same-gender couples make just as good parents as
opposite-gender couples is supported by more than just
common sense; it is also supported by “the vast majority
of scientific studies” examining the issue. See Brief of the
Am. Psychol. Ass’n, et al. as Amici Curia, United States
v. Windsor, ––– U.S. ––––, –––– – ––––, 133 S.Ct. 2675,
2695–96, 186 L.Ed.2d 808 (2013) (12–307), 2013 WL
871958, at *19 (listing studies).

*13 Some argue the state’s interest in responsible
procreation supports same-gender marriage bans.
Procreation, however, is not vital to the state’s interest in
marriage. Procreative potential is not a marriage
prerequisite. § 106.010 (marriage is a civil contract
between males and females at least 17 years of age).
There is no prohibition to marriage as to sterile or infertile
persons, or upon couples who have no desire to have
children. The only prohibited marriages, other than those
between same-gender couples, are those involving first
cousins or those in which either party is already married.
§ 106.020.

Additionally, any governmental interest in responsible
procreation is not advanced by denying marriage to gay a
lesbian couples. There is no logical nexus between the
interest and the exclusion. See Bishop, 962 F.Supp.2d. at
1291 (“[T]here is no rational link between excluding
same-sex couples from marriage and the goals of
encouraging ‘responsible procreation’....”).
Opposite-gender couples will continue to choose to have
children responsibly or not, and those considerations are
not impacted in any way by whether same-gender couples
are allowed to marry. Nothing in this court’s opinion
today will effect the miracle of birth, accidental or
otherwise. A couple who has had an unplanned child has,
by definition, given little thought to the outcome of their
actions. The fact that their lesbian neighbors got married
in the month prior to conception seems of little import to
the stork that is flying their way.

The logical nexus between the state’s interest in “natural”
procreation and denying marriage to same-gender couples
is as unpersuasive as the argument in favor of responsible
procreation. Oregon law plays no favorites between
“naturally and legitimately conceived” children and those
conceived via artificial insemination. § 109.243 (so long
as the husband consented to the artificial insemination,
the child will have the same rights and relationship as
between naturally conceived children). The state’s interest
is in a child’s well-being regardless of the means of
conception. There is simply no rational argument
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connecting this interest to the prohibition of same-gender
marriage.

Although protecting children and promoting stable
families is a legitimate governmental purpose, prohibiting
same-gender couples from marrying is not rationally
related to that interest. To justify classifications singling
out a particular class of persons, the law must, at a
minimum, contain some “factual context” tying the
classification to the purpose sought to be achieved.
Romer, 517 U.S. at 632–33. There is no such factual
context here. In fact, the relationship between prohibiting
same-gender couples from marrying and protecting
children and promoting stable families is utterly arbitrary
and completely irrational. The state’s marriage laws fly in
the face of the state’s “strong interest in promoting stable
and lasting families, including the families of same-sex
couples and their children.” § 106.305(4).

*14 Expanding the embrace of civil marriage to gay and
lesbian couples will not burden any legitimate state
interest. The attractiveness of marriage to opposite-gender
couples is not derived from its inaccessibility to
same-gender couples. See Perry, 704 F.Supp.2d at 972
(“Permitting same-sex couples to marry will not affect the
number of opposite-sex couples who marry, divorce,
cohabit, have children outside of marriage or otherwise
affect the stability of opposite-sex marriages.”). The
well-being of Oregon’s children is not enhanced by
destabilizing and limiting the rights and resources
available to gay and lesbian families. See Obergefell v.
Wymyslo, 962 F.Supp.2d 968, 994–95 (S.D.Ohio 2013)
(“The only effect the bans have on children’s well-being
is harming the children of same-sex couples who are
denied the protection and stability of having parents who
are legally married.”).

The state’s marriage laws unjustifiably treat same-gender
couples differently than opposite-gender couples. The
laws assess a couple’s fitness for civil marriage based on
their sexual orientation: opposite-gender couples pass;
same-gender couples do not. No legitimate state purpose
justifies the preclusion of gay and lesbian couples from
civil marriage.


CONCLUSION
I am aware that a large number of Oregonians, perhaps
even a majority, have religious or moral objections to
expanding the definition of civil marriage (and thereby
expanding the benefits and rights that accompany
marriage) to gay and lesbian families. It was these same
objections that led to the passage of Measure 36 in 2004.
Generations of Americans, my own included, were raised
in a world in which homosexuality was believed to be a
moral perversion, a mental disorder, or a mortal sin. I
remember that one of the more popular, playground
games of my childhood was called “smear the queer”
7
and
it was played with great zeal and without a moment’s
thought to today’s political correctness. On a darker level,
that same worldview led to an environment of cruelty,
violence, and self-loathing. It was but 1986 when the
United States Supreme Court justified, on the basis of a
“millennia of moral teaching,” the imprisonment of gay
men and lesbian women who engaged in consensual
sexual acts. Bowers, 478 U.S. at 197 (Burger, C.J.,
concurring), overruled by Lawrence, 539 U.S. at 578.
Even today I am reminded of the legacy that we have
bequeathed today’s generation when my son looks
dismissively at the sweater I bought him for Christmas
and, with a roll of his eyes, says “dad ... that is so gay.”

It is not surprising then that many of us raised with such a
world view would wish to protect our beliefs and our
families by turning to the ballot box to enshrine in law
those traditions we have come to value. But just as the
Constitution protects the expression of these moral
viewpoints, it equally protects the minority from being
diminished by them.

It is at times difficult to see past the shrillness of the
debate. Accusations of religious bigotry and banners
reading “God Hates Fags” make for a messy democracy
and, at times, test the First Amendment resolve of both
sides. At the core of the Equal Protection Clause,
however, there exists a foundational belief that certain
rights should be shielded from the barking crowds; that
certain rights are subject to ownership by all and not the
stake hold of popular trend or shifting majorities.

*15 My decision will not be the final word on this subject,
but on this issue of marriage I am struck more by our
similarities than our differences. I believe that if we can
look for a moment past gender and sexuality, we can see
in these plaintiffs nothing more or less than our own
families. Families who we would expect our Constitution
to protect, if not exalt, in equal measure. With
discernment we see not shadows lurking in closets or the
stereotypes of what was once believed; rather, we see
families committed to the common purpose of love,
devotion, and service to the greater community.

Where will this all lead? I know that many suggest we are
going down a slippery slope that will have no moral
boundaries. To those who truly harbor such fears, I can
only say this: Let us look less to the sky to see what might
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fall; rather, let us look to each other ... and rise. ORDER
TO FOLLOW.


ORDER
McSHANE, District Judge:
*16 The Court, having considered the Plaintiffs’ Motions
for Summary Judgment (ECF Nos. 23 and 42), the
Defendants’ Responses (ECF Nos. 48 and 64), the oral
arguments made by all parties on April 23, 2014, and the
briefs filed by amicus (ECF Nos. 66, 70, and 79),
GRANTS summary judgment in favor of Plaintiffs.

The Court finds that there is no legitimate state interest
that would justify the denial of the full and equal
recognition, attendant rights, benefits, protections,
privileges, obligations, responsibilities, and immunities of
marriage to same-gender couples solely on the basis that
those couples are of the same gender.

NOW, THEREFORE,

The Court GRANTS the Motions for Summary Judgment
(ECF Nos. 23 and 42) filed by the plaintiffs in each of the
consolidated cases.

The Court hereby DECLARES that Article 15, section
5A, of the Oregon Constitution violates the Equal
Protection Clause of the Fourteenth Amendment to the
United States Constitution, and that as such it is void and
unenforceable. Defendants and their officers, agents, and
employees are PERMANENTLY ENJOINED from
enforcing Article 15, section 5A, of the Oregon
Constitution.

The Court also DECLARES that ORS 106.010, ORS
106.041(1), and ORS 106.150(1) violate the Equal
Protection Clause and are unenforceable to the extent that
they would prohibit a person from marrying another
person of the same gender, or would deny same-gender
couples the right to marry with full and equal recognition,
attendant rights, benefits, privileges, obligations,
responsibilities, and immunities of marriage, where the
couple would be otherwise qualified to marry under
Oregon law. Defendants and their officers, agents, and
employees are PERMANENTLY ENJOINED from
enforcing or applying those statutes—or any other, state
or local law, rule, regulation, or ordinance—as the basis
to deny marriage to same-gender couples otherwise
qualified to marry in Oregon, or to deny married
same-gender couples any of the rights, benefits,
privileges, obligations, responsibilities, and immunities
that accompany marriage in Oregon.

The Court DECLARES that the Equal Protection Clause
requires recognition of marriages of same-gender couples
legally performed in other jurisdictions, where those
marriages are in all other respects valid under Oregon
law, and that no state or local law, rule, regulation, or
ordinance can deny recognition of a same-gender couple’s
marriage validly performed in another jurisdiction. The
Court PERMANENTLY ENJOINS Defendants and their
officers, agents, and employees from denying that
recognition.

This Order shall be effective immediately upon filing.

*17 IT IS SO ORDERED.


Footnotes

1


In 1972, the Supreme Court found a lack of “substantial federal question” in the appeal of two men seeking to marry one another
after the Minnesota Supreme Court rejected their equal protection and due process claims. Baker v. Nelson, 409 U.S. 810, 93 S.Ct.
37, 34 L.Ed.2d 65, dismissing appeal from 291 Minn. 310, 191 N.W.2d 185 (1971). Considering 40 years of Supreme Court
decisions, the Court’s summary order in Baker yields no lasting precedential effect in 2014. Kitchen v. Herbert, 961 F.Supp.2d
1181, 1194–95 (D.Utah 2013) (“[D]octrinal developments in the Court’s analysis of both the Equal Protection Clause and the Due
Process Clause as they apply to gay men and lesbians demonstrate that the Court’s summary dismissal in Baker has little if any
precedential effect today.”); accord DeBoer v. Snyder, No. 12–CV–10285, 2014 WL 1100794, at *15 n. 6 (E.D.Mich. Mar.21,
2014); Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 1277 (N.D.Okla.2013); De Leon v. Perry, No.
SA–13–CA–00982–OLG, 2014 WL 715741, at *10 (W.D.Tex. Feb.26, 2014); Bostic v. Rainey, No. 2:13cv395, 2014 WL 561978,
at *10 (E.D.Va. Feb.13, 2014); but see Sevcik v. Sandoval, 911 F.Supp.2d 996, 1003 (D.Nev.2012) (“[T]he present challenge is in
the main a garden-variety equal protection challenge precluded by Baker.”).

2


Plaintiff Basic Rights Education Fund is a “civil rights organization dedicated to education about and advocacy for equal rights for
lesbian, gay, bisexual, and transgender Oregonians[.]” Rummell Mem. Supp. Mot. Summ. J., 5, ECF No. 33.

3

The record must reflect that Multnomah County concluded 10 years ago that denying marriage licenses to same-gender couples
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violated the Oregon Constitution. Waldruff’s Resp. Mot. Summ. J. 1, ECF No. 59. (“The County is proud to have stood firm on
this core civil rights issue a decade ago when backing marriage rights for all was neither easy nor politically safe.”). Still, due to
the State’s marriage laws, Multnomah County requires a court order to resume issuing marriage licenses to same-gender couples.

4


The State’s recognition of out-of-state same-gender marriages is limited to administrative agencies, and does not apply to the court
system, local governments, or the private sector. Or. Admin. R. 105–010–0018 (2013).

5


It might be more helpful to think of marriage as just marriage—a relationship out of which spring duties to both spouse and society
and from which are derived rights, [ ] such as the right to society and services and to conjugal love and affection—rights which
generally prove to be either priceless or worthless, but which none the less the law sometimes attempts to evaluate in terms of
money.
Williams v. North Carolina, 317 U.S. 287, 317, 63 S.Ct. 207, 87 L.Ed. 279 (1942) (Jackson, J., dissenting).

6


The New Mexico Supreme Court succinctly noted what religious impact allowing same-gender marriage would have: “Our holding
will not interfere with the religious freedom of religious organizations or clergy because (1) no religious organization will have to
change its policies to accommodate same-gender couples, and (2) no religious clergy will be required to solemnize a marriage in
contravention of his or her religious beliefs.” Griego v. Oliver, 316 P.3d 865, 871 (2013); see also Kitchen, 961 F.Supp.2d at 1214
(“[T]he court notes that its decision does not mandate any change for religious institutions, which may continue to express their
own moral viewpoints and define their own traditions about marriage.”).

7


The game entailed boys tackling one another “until one survivor remained standing.” Frazier v. Norton, 334 N.W.2d 865, 866
(S.D.1983). Children today continue to play the game, now known as “kill the carrier.”




End of Document

© 2014 Thomson Reuters. No claim to original U.S. Government Works.




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2014 WL 2058105
Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Deb WHITEWOOD, et al., Plaintiffs,
v.
Michael WOLF, in his official capacity as
Secretary, Pennsylvania: Department of Health, et
al., Defendants.
No. 1:13–cv–1861. | Filed May 20, 2014.
Synopsis
Background: Plaintiffs, including eleven lesbian and gay
couples, one widow, and two teenage children of one of
aforesaid couples, brought § 1983 action against
Commonwealth of Pennsylvania, challenging two
provisions of state’s Domestic Relations Code that limited
marriage to opposite-sex couples and prohibited
recognition of same-sex marriages legally entered into in
other jurisdictions. Parties moved and cross-moved for
summary judgment.

Holdings: The District Court, John E. Jones, III, J., held
that:

[1]
Supreme Court’s summary dismissal in Baker v. Nelson
was no longer controlling precedent;

[2]
plaintiffs sufficiently established that they suffered
actionable harms due to challenged provisions;

[3]
plaintiffs had fundamental right to marry, which was
infringed by same-sex marriage ban;

[4]
non-recognition provision violated plaintiffs’
fundamental liberty interest in legal recognition of their
marriages;

[5]
on equal protection challenge, intermediate scrutiny
was warranted; and

[6]
challenged provisions did not survive intermediate
scrutiny.

Plaintiff’s motion granted.

West Codenotes
Held Unconstitutional
23 Pa.C.S.A. §§ 1102, 1704.
Attorneys and Law Firms
Dylan J. Steinberg, John S. Stapleton, Mark A.
Aronchick, Hangley Aronchick Segal Pudlin & Schiller,
Mary Catherine Roper, American Civil Liberties Union of
Pennsylvania, Molly M. Tack–Hooper, ACLU of
Pennsylvania, Rebecca S. Melley, Segal Pudlin &
Schiller, Philadelphia, PA, James D. Esseks, Leslie
Cooper, American Civil Liberties Union Foundation, New
York, NY, Witold J. Walczak, American Civil Liberties
Union of PA, Pittsburgh, PA, Helen E. Casa, Hangley
Aronchick Segal Pudlin & Schiller, Norristown, PA, Seth
F. Kreimer, Philadelphia, PA, for Plaintiffs.
Joel L. Frank, William H. Lamb, Lamb McErlane P.C.,
West Chester, PA, Thomas J. Jezewski, Swartz Campbell,
LLC, Pittsburgh, PA, Frank A. Chernak, John P.
McLaughlin, Ballard Spahr Andrews & Ingersoll LLP,
Philadelphia, PA, for Defendants.
Opinion

MEMORANDUM OPINION
JOHN E. JONES III, District Judge.
*1 Today, certain citizens of the Commonwealth of
Pennsylvania are not guaranteed the right to marry the
person they love. Nor does Pennsylvania recognize the
marriages of other couples who have wed elsewhere.
Hoping to end this injustice, eleven courageous lesbian
and gay couples, one widow, and two teenage children of
one of the aforesaid couples have come together as
plaintiffs and asked this Court to declare that all
Pennsylvanians have the right to marry the person of their
choice and consequently, that the Commonwealth’s laws
to the contrary are unconstitutional. We now join the
twelve federal district courts across the country which,
when confronted with these inequities in their own states,
have concluded that all couples deserve equal dignity in
the realm of civil marriage.


I. BACKGROUND
Plaintiffs in this action protest the constitutionality of two
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provisions of Pennsylvania’s Domestic Relations Code,
which limit marriage to opposite-sex couples and prohibit
the recognition of same-sex marriages legally entered into
in other jurisdictions (collectively, “the Marriage Laws”).


A. The Marriage Laws
In 1996, Pennsylvania was one of 14 states to amend its
laws to add anti-ceremony and anti-recognition provisions
applicable to same-sex couples. The proliferation of such
laws across the country—another 11 states added similar
provisions the following year—was in response to
litigation in Hawaii, in which the Hawaii Supreme Court
had held the state’s ban on same-sex marriage to be
presumptively violative of the state’s equal protection
clause. See Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44
(Haw.1993).

In Pennsylvania, Representative C. Allan Egolf of Perry
County sponsored the marriage amendment and described
it as “an expression of Pennsylvania’s traditional and
longstanding policy of moral opposition to same-sex
marriages ... and support of the traditional family unit.”
(Doc. 115–18, p. 27). Ultimately, both houses passed the
legislation by overwhelming majorities, the House by 177
to 16, and the Senate by 43 to 5.

The Pennsylvania Marriage Laws define “marriage” as
“[a] civil contract by which one man and one woman take
each other for husband and wife.” 23 Pa.C.S. § 1102. In
addition, a provision entitled “Marriage between persons
of the same sex” states as follows:
It is hereby declared to be the
strong and longstanding public
policy of this Commonwealth that
marriage shall be between one man
and one woman. A marriage
between persons of the same sex
which was entered into in another
state or foreign jurisdiction, even if
valid where entered into, shall be
void in this Commonwealth.
23 Pa.C.S. § 1704. As stated, the Marriage Laws have the
effect of preventing same-sex couples from marrying in
Pennsylvania and nullifying the marriages of same-sex
couples legally married elsewhere for purposes of
recognition in the Commonwealth.


B. The Plaintiffs
1

Plaintiffs are Deb and Susan Whitewood, and their
teenage daughters, A.W. and K.W.; Maureen Hennessey;
Lynn and Fredia Hurdle; Fernando Chang–Muy and Len
Rieser; Julia Lobur and Marla Cattermole; Dawn
Plummer and Diana Polson; Dara Raspberry and Helena
Miller; Ron Gebhardtsbauer and Greg Wright; Sandy
Ferlanie and Christine Donato; Heather and Kath Poehler;
Angela Gillem and Gail Lloyd; and Edwin Hill and David
Palmer. Five of the couples are unmarried, seeking to wed
in Pennsylvania, and six of the couples, as well as
Maureen Hennessey, desire to have their valid,
out-of-state marriages recognized by the Commonwealth.

*2 As a group, they represent the great diversity of the
Commonwealth of Pennsylvania. They hail from across
the state, making their homes in Allegheny, Dauphin,
Centre, Northampton, Delaware, Chester, and
Philadelphia Counties. They come from all walks of life;
they include a nurse, state employees, lawyers, doctors, an
artist, a newspaper delivery person, a corporate executive,
a dog trainer, university professors, and a stay-at-home
parent. They have served our country in the Army and
Navy. Plaintiffs’ personal backgrounds reflect a richness
and diversity: they are African–American, Caucasian,
Latino, and Asian; they are Catholic, Baptist, Methodist,
Jewish, Quaker, Buddhist, and secular. In terms of age,
they range from a couple in their 30s with young children,
to retirees in their 60s. Many of the couples have been
together for decades.

As plainly reflected in the way they live their lives, the
plaintiff couples are spouses in every sense, except that
the laws of the Commonwealth prevent them from being
recognized as such.


For better, for worse
The plaintiff couples have shared in life’s joys. They have
purchased homes together and blended their property and
finances. They have started families, welcoming children
through birth and adoption. Some of them have celebrated
their commitment to each other through marriage in other
states, sharing their wedding day with family and friends.

Yet, with each of these joys there has been concomitant
hardship resulting from the Marriage Laws. In terms of
property ownership, all of the couples face the payment of
Pennsylvania’s inheritance tax—including on half of the
value of jointly-owned homes and bank accounts—at 15
percent, the highest rate.

For those couples who have had children, like Dawn
Plummer and Diana Polson, the non-biological parent has
had to apply for a second-parent adoption. Dawn
expresses that she and Diana are presently saving money
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so that she can legally adopt their second son, J.P. Until
the adoption is complete, she has no legal ties to J .P.,
despite that, together, she and Diana dreamed of
welcoming him to their family, prepared for his birth, and
functioned as a married couple long before having him.
Christine Donato, who together with Sandy Ferlanie
completed a second-parent adoption in similar
circumstances, describes the process as “long, expensive,
and humiliating.” The couples choosing to adopt, like
Fernando Chang–Muy and Len Rieser, had to undergo a
two-step process, incurring double the costs, in which one
became their child’s legal parent and, later, the other
petitioned for a second-parent adoption. For the children
of these couples, it can be difficult to understand why
their parents are not married or recognized as married. In
the words of Deb Whitewood, “It sends the message to
our children that their family is less deserving of respect
and support than other families. That’s a hurtful
message.”

In addition, for the couples who have chosen to marry
out-of-state, they are acutely sensitive that their marital
status changes when they cross state lines. Edwin Hill
describes driving home to Pennsylvania after wedding
David Palmer in Maine in 2013, elated to be traveling
through all of the northeastern states that recognize their
marriage. “And then we crossed the Delaware River into
Pennsylvania,” he recalls, “and we looked at each other
and said, ‘We’re not married anymore.’ And that hurt.”
Further, the married couples must still identify themselves
as single in Pennsylvania, for example, on their state
income taxes. Many have remarked on the pain this
causes them, describing that it feels “terrible,” “wrong,”
and “like a denial of [their] relationship” to tick the box
marked “single.”


For richer, for poorer
*3 The plaintiff couples share their resources and support
each other financially. But Plaintiffs commonly echo a
sense of legal and economic vulnerability because of
Pennsylvania’s Marriage Laws. Many of them have paid
lawyers to draft protective documents, like wills and
powers of attorney, in efforts to emulate some of the
protections afforded to couples recognized as married.
Susan Whitewood estimates that her family has spent over
$10,000 in legal fees for the preparation and maintenance
of such documents, which would not have been necessary
if the Commonwealth acknowledged their marriage.

Angela Gillem and Gail Lloyd describe feeling
particularly insecure. Angela is a clinical psychologist and
the primary bread-winner, while Gail is an artist who does
not draw a steady paycheck or contribute to Social
Security. Angela expresses that she has “taken every step
[she] can to ensure [Gail’s] financial security” but that
they still cannot duplicate all of the protections married
couples receive, and she “live[s] every day with the fear
that the steps [she has] taken will not be enough to protect
Gail if something should happen to [her].”


In sickness and in health
The plaintiff couples have supported each other through
illness and medical emergencies. Yet, because
Pennsylvania considers them legal strangers, they may be
left vulnerable in times of crisis. Various of the plaintiffs
express anxiety at the possibility that they would not be
allowed to comfort or gain information about their
partner’s condition in the event of an emergency, despite
the fact that they have prepared powers of attorney. Lynn
Hurdle remembers feelings of fear and helplessness when
her partner, Fredia, was admitted to the hospital for
unexpected surgery. Doctors began operating earlier than
planned, and when Lynn discovered Fredia’s hospital
room to be empty, staff would not tell her why Fredia had
been taken early or where she was.


Until death do us part
The plaintiff couples demonstrate an intention to live out
their lives together. Plaintiff Maureen Hennessey and her
partner of 29 years, Mary Beth McIntyre, present a
powerful example. When Mary Beth was diagnosed with
inoperable Stage 4 lung cancer, Maureen left her job to
care for her and to help run Mary Beth’s business until
her death. Towards the end of her life, Mary Beth
required Maureen’s help to get out of bed and to the
bathroom, and to assist in self-care and administer
medications. They were married in Massachusetts after
Mary Beth fell ill, but because Pennsylvania does not
recognize their marriage, the line for “surviving spouse”
was left blank and Mary Beth was identified as “never
married” on her death certificate. Maureen was listed as
the “informant.”

Wishing to have their relationships recognized for what
they are in the state they call home, and by doing so to
transcend the pain, uncertainty, and injustice visited by
the Marriage Laws, Plaintiffs brought this suit.


II. PROCEDURAL HISTORY
*4 Plaintiffs commenced this action on July 9, 2013
against Defendants Governor Thomas Corbett; Secretary
of the Pennsylvania Department of Health Michael Wolf;
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Attorney General Kathleen Kane; Register of Wills of
Washington County Mary Jo Poknis; and Register of
Wills and Clerk of Orphans’ Court of Bucks County
Donald Petrille, Jr. (Doc. 1). Plaintiffs seek declarations
that the Marriage Laws violate both the Due Process and
Equal Protection Clauses of the Fourteenth Amendment
and a permanent injunction enjoining Defendants from
depriving Plaintiffs and other same-sex couples of the
right to marry and directing Defendants to recognize
same-sex marriages validly entered into in other
jurisdictions, as well as costs, fees, and any other relief
deemed appropriate by the Court.

On September 30, 2013, Defendants filed motions to
dismiss. During the pendency of those motions, Plaintiffs
voluntarily dismissed Defendants Corbett, Kane, and
Poknis. Thereafter, on November 7, 2013, Plaintiffs filed
an amended complaint against Defendants Wolf and
Petrille, and additionally named Pennsylvania Secretary
of Revenue Dan Meuser, as a defendant. (Doc. 64). On
November 15, 2013, we denied Defendants’ motions to
dismiss. (Doc. 67).

After the conclusion of discovery, the parties filed
cross-motions for summary judgment. (Docs.113, 116).
The motions have been fully briefed, and the parties agree
that there are no genuine disputes of material fact.
2

Accordingly, the constitutional issues presented to this
Court are fully at issue and ripe for our disposition.
3



III. PRELIMINARY CHALLENGES
Before undertaking the due process and equal protection
analyses at the heart of this matter, we must first entertain
two preliminary, yet threshold, challenges to Plaintiffs’
efforts to have the Marriage Laws declared
unconstitutional. First, Defendants contend that pursuant
to the Supreme Court’s 1972 decision in Baker v. Nelson,
there is no substantial federal question implicated by any
of Plaintiffs’ claims, and thus this Court lacks subject
matter jurisdiction to hear the case. Second, Defendants
assert that Plaintiffs have failed to meet their burden of
proof under 42 U.S.C. § 1983 because they have not
established a personal, cognizable harm caused by the
enforcement of the Marriage Laws. We shall discuss each
of these preliminary contentions seriatim.


A. Baker v. Nelson
[1]
Although we previously considered, and rejected,
Defendants’ argument that we lack subject matter
jurisdiction over this matter pursuant to the United States
Supreme Court’s summary dismissal in Baker v. Nelson,
409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972)
(dismissing for want of a substantial federal question an
appeal from a ruling by the Supreme Court of Minnesota
that a state law ban on same-sex marriage did not violate
the Due Process Clause of the United States Constitution),
inasmuch as Defendants have reiterated this jurisdictional
challenge, we shall repeat herein our reasons for rejecting
this argument.

*5 There is no dispute that the summary dismissal in
Baker is considered precedential, see Hicks v. Miranda,
422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975)
(dismissal for lack of a substantial federal question is a
decision on the merits), however we, and our sister
district courts that have examined precisely this same
issue, no longer consider Baker v. Nelson controlling due
to the significant doctrinal developments in the four
decades that have elapsed since it was announced by the
Supreme Court. See id. (“[I]f the Court has branded a
question as unsubstantial, it remains so except when
doctrinal developments indicate otherwise[.]”); Windsor
v. United States, 699 F.3d 169, 178–80 (2d Cir.2012);
Geiger v. Kitzhaber, 13–1834, 2014 U.S. Dist LEXIS
68171 (D. Oregon May 19, 2014); Latta v. Otter, No.
13–482, 2014 U.S. Dist. LEXIS 66417, at *22–29, 2014
WL 1909999, at *7–10 (D.Idaho May 13, 2014); DeBoer
v. Snyder, No. 12–10285, 2014 U.S. Dist. LEXIS 37274,
at *46, n. 6, 2014 WL 1100794, at *17, n. 6 (E.D.Mich.
Mar.21, 2014); De Leon v. Perry, No. 13–982, 2014 U.S.
Dist. LEXIS 26236, at *23–29, 2014 WL 715741, at
*8–10 (W.D.Tex. Feb.26, 2014); Bostic v. Rainey, 970
F.Supp.2d 456, 469–70 (E.D.Va.2014); McGee v. Cole,
No. 13–24068, 2014 U.S. Dist. LEXIS 10864, at *24–33,
2014 WL 321122, at *8–10 (S.D.W.Va. Jan.29, 2014);
Bishop v. U.S. ex rel. Holder, 962. F.Supp.2d 1252,
1274–77 (N. D.Okla.2014); Kitchen v. Herbert, 961
F.Supp.2d 1181, 1194–95 (D.Utah 2013).

As we previously explained:
The jurisprudence of equal protection and substantive
due process has undergone what can only be
characterized as a sea change since 1972. The Supreme
Court has decided several cases since Baker which
demonstrate that it no longer views constitutional
challenges based on sex or sexual identity
classifications as unsubstantial. For example, when
Baker was decided, “ ‘intermediate scrutiny’ was not
yet in the Court’s vernacular” and “classifications
based on illegitimacy and sex were not yet deemed
quasi-suspect.” Windsor v. United States, 699 F.3d 169,
179 (2d Cir.2012) (citing Craig v. Boren, 429 U.S. 190,
218, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (Rehnquist,
J., dissenting) (coining “intermediate level scrutiny”);
Lalli v. Lalli, 439 U.S. 259, 264–65, 99 S.Ct. 518, 58
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L.Ed.2d 503 (1978) (applying intermediate scrutiny to
a classification based on illegitimacy, and describing
how heightened scrutiny had been used for such
classifications since 1976); Frontiero v. Richardson,
411 U.S. 677, 682, 93 S.Ct. 1764, 36 L.Ed.2d 583
(1973) (plurality) (identifying sex as a suspect class)).
The Supreme Court had also not yet ruled that “a
classification [based on sexuality] undertaken for its
own sake” lacked a rational basis. Romer v. Evans, 517
U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855
(1996). Further, in 1972, governments could lawfully
“demean [homosexual persons’] existence or control
their destiny by making their private sexual conduct a
crime.” Lawrence v. Texas, 539 U.S. 558, 578, 123
S.Ct. 2472, 156 L.Ed.2d 508 (2003). Finally, in June of
[2013], the Supreme Court held that a federal statute
defining marriage as only between heterosexual
couples violated the equal protection and due process
rights of same-sex couples who had married in states
where same-sex marriage is legally recognized. See
United States v. Windsor, 570 U.S.—(2013).
*6 (Doc. 67, pp. 5–6). Defendants have presented us with
no compelling reason to part company with our previous
determination, which has been resoundingly echoed by
our sister district courts which have considered, and
rejected, Baker’s precedential value in light of doctrinal
developments in the areas of constitutional due process
and equal protection.

The only new component of Defendants’ argument is
their contention that, in view of the Supreme Court’s
recent decision to stay the District of Utah’s order in
Kitchen v. Herbert, the Supreme Court is bound to
overturn the District of Utah’s decision.
4
See Herbert v.
Kitchen, ––– U.S. ––––, 134 S.Ct. 893, 187 L.Ed.2d 699
(2014). Simply put, this constitutes nothing more than
speculation on the part of Defendants. Accordingly, we do
not agree with Defendants that this procedural order of
the Supreme Court forecasts pending disapproval of the
District of Utah’s decision or its intention to reaffirm the
precedential value of Baker.

Based on the foregoing, we again reject the contention
that Baker v. Nelson presents a jurisdictional bar to
Plaintiffs’ claims.


B. Burden of Proof under 42 U.S.C. § 1983
5

[2]
Defendants contend that Plaintiffs have failed to meet
their burden of proof with respect to their constitutional
claims because they have offered no facts establishing
that Defendants took an action against them or are likely
to be involved in acts or omissions regarding the Marriage
Laws that caused or is likely to cause Plaintiffs harm.
Defendants’ argument focuses specifically on Plaintiffs’
alleged failure to assert a cognizable injury against them
by virtue of enforcement of the Marriage Laws. In view
of the reasoning and holding in United States v. Windsor,
––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013),
this argument is easily rejected.

Writing for the majority in Windsor, Justice Kennedy
opined that discrimination caused by the non-recognition
of same-sex couples’ marriages “impose[s] a
disadvantage, a separate status, and so a stigma upon”
same-sex couples in the eyes of the state and the broader
community. Id. at 2693. Not only are these stigmatizing
harms cognizable, they are profoundly personal to
Plaintiffs and all other gay and lesbian couples, married or
not, who live within the Commonwealth of Pennsylvania
and thus are subject to the Marriage Laws. Additionally,
and as discussed in greater detail above, see discussion
supra Part I.B., Plaintiffs suffer a multitude of daily
harms, for instance, in the areas of child-rearing,
healthcare, taxation, and end-of-life planning. With the
Plaintiffs’ stories in mind, we easily find that Plaintiffs
have sufficiently established that they suffer actionable
harms, and Defendants’ argument to the contrary is
rejected.


IV. SUBSTANTIVE QUESTIONS
Having resolved the preliminary challenges advanced by
Defendants against Plaintiffs’ claims, we now turn to the
substantive questions presented by Plaintiffs in this
action. Specifically, those questions are as follows: (1)
whether the Marriage Laws violate Plaintiffs’ due process
rights as guaranteed by the Fourteenth Amendment to the
United States Constitution; and (2) whether the Marriage
Laws violate Plaintiffs’ rights to equal protection as
guaranteed by the Fourteenth Amendment to the United
States Constitution.


A. Due Process
1. Fundamental Right to Marry
*7
[3]
The Due Process Clause of the Fourteenth
Amendment guarantees that all citizens have certain
“fundamental rights comprised within the term liberty
[that] are protected by the Federal Constitution from
invasion by the States.” Planned Parenthood v. Casey,
505 U.S. 833, 847, 112 S.Ct. 2791, 120 L.Ed.2d 674
(1992) (quoting Whitney v. California, 274 U.S. 357, 373,
47 S.Ct. 641, 71 L.Ed. 1095 (1927)). The Supreme Court
has described the individual’s right to liberty as “the right
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to define one’s own concept of existence, of meaning, of
the universe, and of the mystery of human life. Beliefs
about these matters could not define the attributes of
personhood were they formed under compulsion of the
State.” Id . at 851.

[4]
Encompassed within the right to liberty is the
fundamental right to marry. See Maynard v. Hill, 125 U.S.
190, 205, 211, 8 S.Ct. 723, 31 L.Ed. 654 (1888)
(characterizing marriage as “the most important relation
in life” and “the foundation of the family and of society,
without which there would be neither civilization nor
progress”); see also Zablocki v. Redhail, 434 U.S. 374,
384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (“[T]he right to
marry is of fundamental importance for all individuals.”).
The fundamental right to marry has been historically and
repeatedly recognized by the Supreme Court and was
perhaps most eloquently described in the concluding lines
of Griswold v. Connecticut,
We deal with a right of privacy
older than the Bill of Rights-older
than our political parties, older than
our school system. Marriage is a
coming together for better or for
worse, hopefully enduring, and
intimate 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 projects. Yet
it is an association for as noble a
purpose as any involved in our
prior decisions.
381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

[5]
The parties to this action certainly do not dispute that
the Due Process Clause of the Fourteenth Amendment
guarantees individuals the fundamental right to marry.
They stridently part company, however, over whether the
fundamental right to marry encompasses the right to
marry a person of the same sex. Plaintiffs contend that the
fundamental right to marry belongs to the individual and
protects each individual’s choice of whom to marry. In
stark contrast, Defendants contend that, because “[t]he
United States Supreme Court has never recognized that
the fundamental right to marry includes the right to marry
a person of one’s choice,” the Marriage Laws do not
violate Plaintiffs’ due process rights. (Doc. 117, p. 20)
(emphasis in original). Against this jurisprudential
backdrop, and in view of the parties’ polarized positions,
we are tasked to consider and address the scope of the
fundamental right to marry.

While the Supreme Court has cautioned that the Due
Process Clause only “protects those fundamental rights
and liberties which are, objectively, deeply rooted in this
Nation’s history and tradition, ... and implicit in the
concept of ordered liberty,” Washington v. Glucksberg,
521 U.S. 702, 720–21 (1997) (internal citation and
quotation marks ommitted), the Supreme Court has
clarified the boundaries of the fundamental right to marry
when tested by new societal norms. Perhaps the most
classic example of such clarification is Loving v. Virginia,
388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). In
Loving, the Supreme Court struck down Virginia’s laws
against interracial marriage, finding the state’s
anti-miscegenation statutes violative of both the Due
Process and Equal Protection Clauses of the Fourteenth
Amendment. The Supreme Court characterized the right
to marry as one that “resides with the individual and
cannot be infringed by the State.” Id. at 12.

*8 In a retrospective discussion of Loving, the Supreme
Court reaffirmed that its decision to find Virginia’s
anti-miscegenation statutes unconstitutional was entirely
correct, despite a long historical tradition in this nation of
prohibiting interracial couples from marrying. See Casey,
505 U.S. at 847–848; see also Bowers v. Hardwick, 478
U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986)
(Stevens, J., dissenting) (“[N]either history nor tradition
could save a law prohibiting miscegenation from
constitutional attack.”), overruled by Lawrence, 478 U.S.
186, 106 S.Ct. 2841, 92 L.Ed.2d 140; Perry v.
Schwarzenegger, 704 F.Supp.2d 921, 992 (N.D.Cal.2010)
(“[T]he 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.”).

Thereafter, in Turner v. Safley, 482 U.S. 78, 107 S.Ct.
2254, 96 L.Ed.2d 64 (1987), the Supreme Court
reaffirmed that the right to marry resides with the
individual when it struck down a Missouri regulation that
prohibited inmates from marrying unless the prison
superintendent approved of the marriage. The Supreme
Court held that inmates retained their fundamental right to
marry even though they had a reduced expectation of
liberty during incarceration and despite the fact that the
marriage, at least initially, would not result in procreation.
See id. at 95–96.

More recently, in Lawrence v. Texas, the Supreme Court
confirmed that gay and lesbian individuals do not forfeit
their constitutional liberties simply because of their sexual
orientation, noting that “our laws and tradition afford
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constitutional protection to personal decisions relating to
marriage, procreation, contraception, family relationships,
child rearing, and education.” 539 U.S. at 574.
Emphasizing that these rights are personal to the
individual, the Supreme Court stated that “[p]ersons in a
homosexual relationship may seek autonomy for these
purposes, just as heterosexual persons do.” Id. In June of
last year, the Supreme Court determined that the federal
DOMA’s one man and one woman definition of marriage
was an unconstitutional “interference with the equal
dignity of same-sex marriages” legally recognized in
some states. Windsor, 133 S.Ct. at 2693.

[6]

[7]
With the weight and impetus of the foregoing
Supreme Court jurisprudence in mind, this Court is not
only moved by the logic that the fundamental right to
marry is a personal right to be exercised by the individual,
but also rejects Defendants’ contention that concepts of
history and tradition dictate that same-sex marriage is
excluded from the fundamental right to marry. The right
Plaintiffs seek to exercise is not a new right, but is rather
a right that these individuals have always been guaranteed
by the United States Constitution. As aptly explained by
the Supreme Court in Lawrence:
Had those who drew and ratified
the Due Process Clauses of the
Fifth Amendment 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.
*9 539 U.S. at 578–79; see also Roberts v. U.S. Jaycees,
468 U.S. 609, 620, 104 S.Ct. 3244, 82 L.Ed.2d 462
(1984) (“[T]he Constitution undoubtedly imposes
constraints on the State’s power to control the selection of
one’s spouse....”); Kitchen, 961 F.Supp.2d at 1203 (“The
Constitution is not so rigid that it always mandates the
same outcome even when its principles operate on a new
set of facts that were previously unknown[.]”).
Recognizing that “[h]istory and tradition are the starting
point but not in all cases the ending point of the
substantive due process inquiry,” Lawrence, 539 U.S. at
572 (citation and internal quotation marks omitted), we
specifically hold that the fundamental right to marry as
protected by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution
encompasses the right to marry a person of one’s own
sex.
6
We further hold that this fundamental right is
infringed upon by 23 Pa.C.S. § 1102, which defines
marriage as between one man and one woman and thus
precludes same-sex marriage. Accordingly, 23 Pa.C.S. §
1102 is unconstitutional.


2. Marriage Recognition
[8]
Having reached the conclusion that same-sex marriage
is included within the fundamental right to marry and is
infringed upon by 23 Pa.C.S. § 1102, it necessarily
follows that 23 Pa.C.S. § 1704, which refuses to
recognize same-sex marriages validly performed in other
jurisdictions, is also unconstitutional. Specifically,
Pennsylvania’s non-recognition law robs those of the
Plaintiffs who are already married of their fundamental
liberty interest in the legal recognition of their marriages
in Pennsylvania. See De Leon, 2014 U.S. Dist. LEXIS
26236, at *66 (“[B]y declaring existing, lawful same-sex
marriages void and denying married couples the rights,
responsibilities, and benefits of marriage, Texas denies
same-sex couples who have been married in other states
their due process.”); Obergefell v. Wymyslo, 962
F.Supp.2d 968, 979 (S.D.Ohio 2013) (“When a state
effectively terminates the marriage of a same-sex couple
married in another jurisdiction, it intrudes into the realm
of private marital, family, and intimate relations
specifically protected by the Supreme Court.”); Henry,
2014 U.S. Dist. LEXIS 512111, at *29 (right to remain
married is a fundamental liberty interest appropriately
protected by the Due Process Clause); Baskin v. Bogan,
No. 14–355, 2014 U.S. Dist. LEXIS 63421, 2014 WL
1814064 (S.D.Ind. May 8, 2014); see also Windsor, 133
S.Ct. at 2694 (When one jurisdiction refuses recognition
of family relationships legally established in another,
“[t]he differentiation demeans the couple, whose moral
and sexual choices the Constitution protects ... and whose
relationship the State has sought to dignify.”).
Accordingly, we declare that 23 Pa.C.S. § 1704 violates
the Due Process Clause of the United States Constitution
and is therefore unconstitutional.


B. Equal Protection
[9]
Plaintiffs also advocate that the Marriage Laws violate
the Equal Protection Clause of the Fourteenth
Amendment. That provision forbids a state from denying
to any person within its jurisdiction the equal protection
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of the laws, see U.S. CONST. amend. XIV, § 1,
effectively directing the like treatment of
similarly-situated persons, see Plyler v. Doe, 457 U.S.
202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982).

*10
[10]

[11]

[12]

[13]

[14]
Laws reviewed under the Equal
Protection Clause are subject to various levels of scrutiny
depending upon the classification imposed. See generally
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S.
432, 439–41, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
Strict scrutiny is reserved for statutes engendering suspect
classifications, such as those based on race, alienage, or
national origin, and requires the government to
demonstrate that the law is narrowly tailored to further
compelling state interests. See id. at 440; Johnson v.
California, 543 U.S. 499, 505, 125 S.Ct. 1141, 160
L.Ed.2d 949 (2005). Intermediate or heightened scrutiny
has been applied to classifications deemed
“quasi-suspect,”
7
such as those based on sex or
illegitimacy. See Mills v. Habluetzel, 456 U.S. 91, 99, 102
S.Ct. 1549, 71 L.Ed.2d 770 (1982); Miss. Univ. for
Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73
L.Ed.2d 1090 (1982). To survive intermediate scrutiny, a
statutory classification must be substantially related to an
important governmental objective. See Clark v. Jeter, 486
U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988).
Lastly, for classifications that do not target suspect or
quasi-suspect groups, courts apply rational-basis review,
which is satisfied if a statutory classification is rationally
related to a legitimate governmental purpose. See Heller
v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d
257 (1993). Review for rationality is highly deferential to
the legislature, and the burden rests with the challenger to
negate every possible basis for the law. See id.
8


As an initial matter, the parties disagree on the level of
scrutiny applicable to classifications based on sexual
orientation. Defendants argue for rational-basis review,
while Plaintiffs would have us apply heightened scrutiny.
9



1. Heightened Scrutiny
The Third Circuit has never discoursed on the appropriate
level of scrutiny to be applied to classifications based on
sexual orientation, nor has the Supreme Court rendered an
explicit holding on that point. Thus, we must consider and
determine whether gay and lesbian persons comprise a
quasi-suspect class for purposes of an equal protection
analysis of the Marriage Laws. While Windsor, the most
recent apposite pronouncement by the Supreme Court,
offers little concrete guidance, we glean from it and other
Supreme Court jurisprudence that heightened scrutiny is,
at minimum, not foreclosed. Indeed, in the tea leaves of
Windsor and its forebears we apprehend the application of
scrutiny more exacting than deferential.

As Justice Scalia cogently remarked in his dissent, “if
[Windsor] is meant to be an equal-protection opinion, it is
a confusing one.” Windsor, 133 S.Ct. at 2706 (Scalia, J.,
dissenting). Although Windsor did not identify the
appropriate level of scrutiny, its discussion is manifestly
not representative of deferential review. See id. (Scalia, J.,
dissenting) (observing that “the Court certainly does not
apply anything that resembles [the rational-basis]
framework” (emphasis omitted)). The Court did not
evaluate hypothetical justifications for the law but rather
focused on the harm resulting from DOMA, which is
inharmonious with deferential review. See, e.g.,
McGowan v. State of Md., 366 U.S. 420, 425–26 (1961)
(explaining that, under rational-basis scrutiny, legislatures
are presumed to have acted constitutionally “despite the
fact that, in practice, their laws result in some inequality,”
and “[a] statutory discrimination will not be set aside if
any state of facts reasonably may be conceived to justify
it”). Indeed, far from affording the statute the presumption
of validity, Windsor found DOMA unconstitutional
because “no legitimate purpose overcomes the purpose
and effect to disparage and to injure.” Windsor, 133 S.Ct.
at 2696 (emphasis added); see SmithKline Beecham Corp.
v. Abbot Labs., 740 F.3d 471, 480, 483 (9th Cir.2014)
(examining “what the Court actually did” in Windsor and
concluding that the decision requires heightened scrutiny)
(citation and internal quotation marks omitted).

*11 It has been observed that other of the Supreme
Court’s equal protection cases purporting to apply
deferential review have also, in practice, probed more
deeply, especially where the subject group has suffered
historic patterns of deprivation. See, e.g., Massachusetts
v. U.S. Dept. of Health & Human Servs., 682 F.3d 1, 11
(1st Cir.2012) (“The Court has ... undertaken a more
careful assessment of the justifications than the light
scrutiny offered by conventional rational basis review [in
examining statutes targeting women, the poor, the
mentally impaired, and gays and lesbians].”). Notably, the
Court’s sexual orientation jurisprudence has generally
afforded considerably less deference than would be
expected under usual rational-basis review. See generally
Note, The Benefits of Unequal Protection, 126 HARV.
L.REV.. 1348, 1362 (2013) (referencing Romer and
Lawrence, and explaining that many commentators have
characterized the scrutiny applied to sexual orientation
classifications as “rational basis with bite”).

Furthermore, a determination to apply heightened scrutiny
to classifications standing on sexual orientation would be
far from unprecedented, as a number of federal and state
courts have indicated that such scrutiny is warranted.
10

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Hence, we proceed to consider whether classifications
based on sexual orientation qualify as quasi-suspect.


a. Indicia of Suspectness
11

[15]
The Supreme Court has established certain criteria for
evaluating whether a class qualifies as suspect or
quasi-suspect, which query whether the group: (1) has
been subjected to “a history of purposeful unequal
treatment,” Mass. Bd. of Ret. v. Murgia, 427 U.S. 307,
313, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam );
(2) possesses a characteristic that “frequently bears no
relation to ability to perform or contribute to society,”
Cleburne, 473 U.S. at 440–41; (3) exhibits “obvious,
immutable, or distinguishing characteristics that define
them as a discrete group[,]” Bowen v. Gilliard, 483 U.S.
587, 602, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1987) (citation
and internal quotation marks omitted); and (4) is “a
minority or politically powerless.” Id. Of the four factors,
the first two are most meaningful. See Windsor, 699 F.3d
at 181 (“Immutability and lack of political power are not
strictly necessary factors to identify a suspect class.”).
The criteria function as a lodestar, and as Justice
Thurgood Marshall effectually observed, “[n]o single
talisman can define those groups likely to be the target of
classifications offensive to the Fourteenth Amendment
and therefore warranting heightened or strict scrutiny;
experience, not abstract logic, must be the primary
guide.” Cleburne, 473 U.S. at 472 n .24 (Marshall, J.,
concurring in part and dissenting in part).

Defendants do not advance that sexual orientation is
mutable or bears a relation to ability to participate in
society. Rather, they dispute only that gay and lesbian
persons have suffered requisite historical discrimination
and lack political power. Nonetheless, we address each
criterion in turn.


i. History of Discrimination
*12
[16]
That the gay and lesbian community has endured
historical discrimination at the national level is
uncontested. In terms of government-sanctioned
discrimination, in 1952, Congress prohibited gay men and
women from entering the country or securing citizenship.
(Doc. 115–1, pp. 129–30). In 1953, President Eisenhower
issued an executive order banning the employment of
homosexuals and requiring that private contractors
currently employing gay individuals search out and
terminate them. (Id. p. 129). Although the ban on hiring
gay employees was lifted in 1975, federal agencies were
free to discriminate against homosexuals in employment
matters until President Clinton forbade the practice in
1998. (Id. p. 137). Beginning in World War II, the
military developed systematic policies to exclude
personnel on the basis of homosexuality, and, following
the war, the Veterans Administration denied GI benefits
to service members who had been discharged because of
their sexuality. (Id. p. 128).

Within our lifetime, gay people have been the targets of
pervasive police harassment, including raids on bars,
clubs, and private homes; portrayed by the press as
perverts and child molesters; and victimized in horrific
hate crimes. (E.g., id. pp. 126–28, 131–32, 141). Gay and
lesbian persons have been prevented from adopting and
serving as foster parents, and the majority of states
prohibit same-sex marriage. (Id. pp. 139, 142).

Perhaps most illustrative of the pervasive historic
discrimination faced by gays and lesbians was the
widespread and enduring criminalization of homosexual
conduct. Before the 1960s, all states punished sexual
intimacy between men, and, until the publish of Lawrence
v. Texas in 2003, thirteen states categorized sodomy as a
felony offense. (Id. p. 121). Our country’s military
continued to make sodomy a crime until 2013. (Id. p.
128).

The nation’s history of discrimination against gays and
lesbians speaks for itself. What Defendants contest is a
record of discrimination in Pennsylvania, which they
appear to believe is required for a finding of historical
injustice. However, Defendants provide no authority
directing a narrowed geographic focus in discerning
longstanding discrimination, and our review of Supreme
Court jurisprudence suggests no such constraint. Cf., e.g.,
Murgia, 427 U.S. at 313 (in assessing the constitutionality
of a Massachusetts mandatory retirement law, evaluating
“the treatment of the aged in this Nation”).
12


As an apparently alternative position, Defendants
advocate taking a shorter view of national history,
focusing on the legal and social progress of the gay
community in the past few decades to argue against a
finding of historical discrimination. They highlight that
many laws adversely targeting homosexuals have been
repealed, a number of states have extended
anti-discrimination protections to gay men and lesbians,
and the media now depicts gay people more widely and
positively. (Doc. 115–1, pp. 122, 137, 139). We agree
with Plaintiffs that “[t]he fact that some forms of
discrimination against gay people have ceased or become
less prevalent does not change the fact that lesbian and
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gay people continue to live with the legacy of a long
history of discrimination that created and reinforced the
belief that they are an inferior class.” (Doc. 128, p. 6
(citing Doc. 115–1, pp. 120, 378)); see Frontiero, 411
U.S. at 685–86 (applying heightened scrutiny to
classifications based on sex even though “the position of
women in America has improved markedly in recent
decades”; observing that “women still face pervasive,
although at times more subtle, discrimination” in the
public sphere) (footnotes omitted).

*13 In view of the protracted historical record of
injustices against gay and lesbian persons in our country
(inclusive of this Commonwealth), we find that this
consideration points strongly toward the application of
heightened scrutiny.


ii. Relation to Ability
[17]
We need not linger on this criterion: it is axiomatic
that sexual orientation has no relevance to a person’s
capabilities as a citizen. Accord Golinski, 824 F.Supp.2d
at 986 (“[T]here is no dispute in the record or the law that
sexual orientation has no relevance to a person’s ability to
contribute to society.”).
13
Defendants’ silence on this point
speaks volumes, and either connotes candor, agreement
with Plaintiffs, or both. This factor weighs heavily in
favor of recognizing sexual orientation as a quasi-suspect
class.


iii. Distinguishing Characteristic
[18]

[19]
Whether sexual orientation constitutes a
sufficiently discernable characteristic is also little in
debate and, for our purposes, undisputed by Defendants.
Briefly, although this factor is often phrased in terms of
“immutability,” the test is broader, encompassing groups
whose members can hide the distinguishing trait and
where the characteristic is subject to change. See Mathews
v. Lucas, 427 U.S. 495, 506, 96 S.Ct. 2755, 49 L.Ed.2d
651 (1976) (observing that illegitimate children do not
“carry an obvious badge”); Pedersen, 881 F.Supp.2d at
320 (noting that status as a resident alien or as illegitimate
may be subject to change, yet that these classifications
compel increased scrutiny). Here, the characteristic in
issue is “so fundamental to one’s identity that a person
should not be required to abandon [it].”
Hernandez–Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th
Cir.2000), overruled on other grounds by Thomas v.
Gonzales, 409 F.3d 1177 (9th Cir.2005).

This factor, too, indicates the appropriateness of
heightened scrutiny.


iv. Political Power
[20]

[21]
Lastly, we consider whether the subject group lacks
political power or is a minority. See Bowen, 483 U.S. at
602. This consideration centers on relative political
influence and inquires whether the “ ‘discrimination is
unlikely to be soon rectified by legislative means.’ “
Golinski, 824 F.Supp.2d at 987 (quoting Cleburne, 473
U.S. at 440); see also San Antonio Indep. Sch. Dist., 411
U.S. at 28 (to satisfy this factor, the class must be
“relegated to such a position of political powerlessness as
to command extraordinary protection from the
majoritarian political process”). While germane, this
factor is not essential for recognition as a suspect or
quasi-suspect class. See Cleburne, 473 U.S. at 472 n. 24
(Marshall, J., concurring in part and dissenting in part)
(“The ‘political powerlessness’ of a group may be
relevant, ... but that factor is neither necessary, as the
gender cases demonstrate, nor sufficient, as the example
of minors illustrates.”).

[22]
In our case, “[t]he question is not whether
homosexuals have achieved political successes over the
years; they clearly have. The question is whether they
have the strength to politically protect themselves from
wrongful discrimination.” Windsor, 699 F.3d at 184.
Defendants contend that the gay community does possess
such force, centrally citing Sevcik v. Sandoval, 911
F.Supp.2d 996 (D.Nev.2012). In that case, a district court
concluded that homosexuals possessed sufficient political
power, noting cultural shifts toward acceptance of gay
people, including the President’s endorsement of
same-sex marriage, and recent political successes, such as
on marriage ballot initiatives at the state level. See id . at
1008, 1013. Defendants highlight that, at present, at least
17 bills have been introduced in Pennsylvania that would
protect and benefit gay men and lesbians, four of which
redefine marriage inclusively.

*14
[23]
While the gay rights movement has undoubtedly
gained recognition as a vigorous force and has influenced
public policy to some extent, there remains an absence of
statutory, anti-discrimination protections which may
indicate continuing political weakness. See Obergefell,
962 F.Supp.2d at 989; Pedersen, 881 F.Supp.2d at 327.
Today, in over half of states including Pennsylvania, gay
and lesbian individuals lack statewide, statutory
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protections against discrimination in housing and public
accommodation, as well as in firing, refusal to hire, and
demotion in private-sector employment. (Doc. 115–1, p.
137). As to the proposed legislation in Pennsylvania, we
find it of little assistance to our inquiry as there can be no
assurance that such bills will garner sufficient support for
passage.

Furthermore, some courts finding homosexuals to be
politically powerless have taken guidance from the
plurality in Frontiero, noting that women had achieved
great political victories at the time of the decision but
were nonetheless considered a quasi-suspect class. See,
e.g., Pedersen, 881 F.Supp.2d at 328–29; Varnum, 763
N.W.2d at 894. Similar to the status of women in 1973,
homosexuals’ position “has improved markedly in recent
decades,” but they still “face pervasive, although at times
more subtle, discrimination ... in the political arena.”
Frontiero, 411 U.S. at 685–86 (footnotes omitted); see
Windsor, 699 F.3d at 184.

This factor appears more equivocal than the others.
However, in view of the general lack of statutory
protections for homosexual persons, we perceive a weak
positive in favor of heightened scrutiny.

[24]
To summarize, we find that all four factors weigh in
favor of a finding that gay and lesbian persons compose a
class that is subject to heightened scrutiny. We agree with
the Second Circuit, and the district court cases that
followed it, that the class is quasi-suspect—as opposed to
suspect—“based on the weight of the factors and on
analogy to the classifications recognized as suspect and
quasi-suspect.” Windsor, 699 F.3d at 185.

Having concluded that classifications based on sexual
orientation are quasi-suspect, we proceed to apply
intermediate scrutiny to the Marriage Laws in
consideration of their constitutionality.


b. Application of Heightened Scrutiny
[25]
As stated, a statutory classification survives
intermediate scrutiny if it is substantially related to an
important governmental objective, with the party
defending the statute carrying the burden to demonstrate
the rationale. See Clark, 486 U.S. at 461. The Supreme
Court has also described the standard as demanding an
“exceedingly persuasive justification” for the
classification. Miss. Univ. for Women, 458 U.S. at 724
(citing Kirchberg v. Feenstra, 450 U.S. 455, 461, 101
S.Ct. 1195, 67 L.Ed.2d 428 (1981); Personnel Admin’r of
Mass. v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 60
L.Ed.2d 870 (1979)). Quasi-suspect classifications are
subject to heightened review because the preeminent
characteristic of the group “generally provides no sensible
ground for differential treatment.” Cleburne, 473 U.S. at
440.

*15
[26]
In terms of state interests served by
Pennsylvania’s Marriage Laws, Defendants advance the
following: the promotion of procreation, child-rearing and
the well-being of children, tradition, and economic
protection of Pennsylvania businesses. Defendants appear
to defend only the first two aims, stating that numerous
federal and state courts have agreed that responsible
procreation and child-rearing are legitimate state interests
and providing extensive authority for that proposition.
Significantly, Defendants claim only that the objectives
are “legitimate,” advancing no argument that the interests
are “important” state interests as required to withstand
heightened scrutiny. Also, Defendants do not explain the
relationship between the classification and the
governmental objectives served; much less do they
provide an exceedingly persuasive justification. In
essence, Defendants argue within the framework of
deferential review and go no further.
14
Indeed, it is
unsurprising that Defendants muster no argument
engaging the strictures of heightened scrutiny, as we, too,
are unable to fathom an ingenuous defense saving the
Marriage Laws from being invalidated under this
more-searching standard.
15


In sum, Defendants have failed to carry their burden, and
we conclude that the classification imposed by the
Marriage Laws based on sexual orientation is not
substantially related to an important governmental
interest. Accordingly, we hold that the Marriage Laws
violate the principles of equal protection and are therefore
unconstitutional.


V. CONCLUSION
Based on the foregoing, we hold that Pennsylvania’s
Marriage Laws violate both the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the
United States Constitution. Because these laws are
unconstitutional, we shall enter an order permanently
enjoining their enforcement. By virtue of this ruling,
same-sex couples who seek to marry in Pennsylvania may
do so, and already married same-sex couples will be
recognized as such in the Commonwealth.

[27]

[28]
The issue we resolve today is a divisive one. Some
of our citizens are made deeply uncomfortable by the
notion of same-sex marriage. However, that same-sex
marriage causes discomfort in some does not make its
prohibition constitutional. Nor can past tradition trump
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the bedrock constitutional guarantees of due process and
equal protection. Were that not so, ours would still be a
racially segregated nation according to the now rightfully
discarded doctrine of “separate but equal.” See Brown v.
Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed.
873 (1954), overruling Plessy v. Ferguson, 163 U.S. 537,
16 S.Ct. 1138, 41 L.Ed. 256 (1896). In the sixty years
Brown was decided, “separate” has thankfully faded into
history, and only “equal” remains. Similarly, in future
generations the label same-sex marriage will be
abandoned, to be replaced simply by marriage.

We are a better people than what these laws represent,
and it is time to discard them into the ash heap of history.

*16 An appropriate Order shall issue.


ORDER
JOHN E. JONES III, District Judge.
In conformity with the Memorandum Opinion issued on
today’s date, it is hereby ORDERED that Plaintiffs’
Motion for Summary Judgment (Doc. 113) is GRANTED
and Defendants’ Motion for Summary Judgment (Doc.
116) is DENIED.

It is further ORDERED and DECLARED that
Pennsylvania’s Marriage Laws, 23 Pa.C.S. §§ 1102 and
1704, which prohibit same-sex marriage and treat as void
the marriages of same-sex couples validly entered into in
other jurisdictions VIOLATE the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the
United States Constitution and are therefore
UNCONSTITUTIONAL.

It is further ORDERED that the Defendants are
PERMANENTLY ENJOINED from enforcing 23
Pa.C.S. §§ 1102 and 1704.


Footnotes

1


The facts regarding Plaintiffs’ personal backgrounds are derived from their Statement of Facts (Doc. 115) and personal
declarations. (Docs.115–2—115–14).

2


We thank all counsel for their consistent collegiality, dedication to alacrity, and general professionalism exhibited throughout the
course of this litigation.

3


Federal Rule of Civil Procedure 56(a) provides that “[t]he court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

4


In Kitchen, the district judge held that Utah’s prohibition on same-sex marriage conflicts with the guarantees of equal protection
and due process under the Fourteenth Amendment to the United States Constitution. The district court reasoned that Utah’s laws
denied gay and lesbian citizens their fundamental right to marry and, in so doing, demeaned the dignity of these same-sex couples
for no rational reason. See Kitchen, 961 F.Supp.2d 1181.

5


42 U.S.C. § 1983 is an enabling statute that provides individuals with access to remedies for violations of their federal
constitutional or statutory rights.

6


Several of our sister district courts have reached precisely this same conclusion in recently penned opinions. See Latta, 2014 U.S.
Dist. LEXIS 66417; Henry v. Himes, No. 14–129, 2014 U.S. Dist. LEXIS 51211, 2014 WL 1418395 (S.D. Ohio April 14, 2014);
De Leon, 2014 U.S. Dist. LEXIS 26236; Bostic, 970 F.Supp.2d 456; Kitchen, 961 F.Supp.2d 1181.

7


We use the terms “heightened scrutiny” and “intermediate scrutiny” interchangeably to refer to the analysis applicable to laws
targeting quasi-suspect classes.

8


An additional strand of equal protection jurisprudence protects against the infringement of fundamental rights and applies strict
scrutiny where the government discriminates among people as to the exercise of such rights. See generally ERWIN
CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES & POLICIES 691 (4th ed.2011). Based on our discussion supra,
determining that Plaintiffs have suffered a deprivation of their fundamental right to marry and be recognized as married, we
conclude that strict scrutiny is appropriate under the fundamental rights strand of equal protection jurisprudence. However, we
focus our attention on the more typical application of equal protection principles, involving the constitutionality of distinctions
among classes.

9

Specifically, Plaintiffs argue that, when evaluating statutes categorizing on the basis of sexual orientation, “[t]his Court should
Appellate Case: 13-4178 Document: 01019253427 Date Filed: 05/21/2014 Page: 26
Whitewood v. Wolf, --- F.Supp.2d ---- (2014)


© 2014 Thomson Reuters. No claim to original U.S. Government Works. 13


apply at least the intermediate scrutiny applied to quasi-suspect classifications....” (Doc. 114, p. 50). Interpreting that Plaintiffs’
arguments largely advocate for the application of intermediate scrutiny, rather than strict scrutiny, we, too, confine our analysis to
the appropriateness of heightened scrutiny.
As an additional, alternative argument, Plaintiffs also contend that the Marriage Laws impose sex-based classifications and, on
this ground, are subject to intermediate scrutiny. We find this characterization less compelling, observing, as a practical matter,
that “the intentional discrimination occurring in this case has nothing to do with gender-based prejudice or stereotypes[.]”
Bishop, 962 F.Supp.2d at 1286; see In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 439 (Cal.2008)
(“[D]iscrimination on the basis of sex[ ] and discrimination on the basis of sexual orientation ... traditionally have been viewed
as distinct phenomena.”).

10


See, e.g., SmithKline, 740 F.3d at 483–84; Windsor, 699 F.3d at 185; Latta, 2014 U.S. Dist. LEXIS 66417, at *22; Henry, 2014
U.S. Dist. LEXIS 51211, at *46–51; De Leon, 2014 U.S. Dist. LEXIS 26236, at *39; Obergefell, 962 F.Supp.2d at 991; Golinski v.
U.S. Office of Personnel Mgmt., 824 F.Supp.2d 968, 989–90 (N.D.Cal.2012); Pedersen v. Office of Personnel Mgmt., 881
F.Supp.2d 294, 333 (D.Conn.2012); Perry, 704 F.Supp.2d at 997; In re Balas, 449 B.R. 567, 575 (Bankr.C.D.Cal.2011) (decision
of 20 Bankruptcy Judges); Varnum v. Brien, 763 N.W.2d 862, 895–96 (Iowa 2009); In re Marriage Cases, 76 Cal.Rptr.3d 683, 183
P.3d at 444; Kerrigan v. Comm’r of Pub. Health, 289 Conn. 135, 957 A.2d 407, 475–76 (Conn.2008).

11


See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (coining “indicia of
suspectness”).

12


To address the merits of Defendants’ concern, however, we pause to note that Pennsylvania’s treatment of homosexuals also
evidences long-term discrimination. For example, in the 1950s, the Philadelphia police formed a “morals squad,” arresting some
200 gay men per month. (Doc. 115–1, p. 132). In 1986, a Pennsylvania appellate court upheld an order heavily restricting a father’s
custody rights based on his sexuality, endorsing that his daughters were “innocent and impressionable” and that exposure to his
homosexual relationship would inevitably result in “emotional disturbance, perhaps severe.” (Id. pp. 135–36) (citing Pascarella v.
Pascarella, 355 Pa.Super. 5, 512 A.2d 715 (Pa.Super.1986)). Also, state legislators have sponsored bills in every session since
2006 proposing to amend the Constitution to enshrine the definition of marriage as between one man and one woman. (Id. p. 144,
512 A.2d 715). During debate, elected officials remarked that failing to exclude same-sex couples from marriage could lead to the
legalization of incest and bestiality, and one senator called homosexual relationships “dysfunctional,” comparing same-sex
marriage to pedophilia. (Id. p. 145, 512 A.2d 715). Further, as discussed infra, Pennsylvania lacks statutory anti-discrimination
legislation protecting gay and lesbian persons, thereby permitting discrimination, e.g., in the work place, housing, and public
accommodation. See discussion infra Part IV.B.1.a.iv. In view of this recitation, we would not find that Pennsylvania lacks a
history of discrimination toward gay people.

13


See also Pedersen, 881 F.Supp.2d at 320 (“Sexual orientation is not a distinguishing characteristic like mental retardation or age
which undeniably impacts an individual’s capacity and ability to contribute to society. Instead like sex, race, or illegitimacy,
homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their
abilities.”); Varnum, 763 N.W.2d at 890 (“Not surprisingly, none of the same-sex marriage decisions from other state courts
around the nation have found a person’s sexual orientation to be indicative of the person’s general ability to contribute to society.”
(footnote omitted)).

14


Amicus, a group of current and former Pennsylvania legislators, submitted a brief also arguing that rational basis review is satisfied
here. Accordingly, their assertions do not aid our examination under heightened scrutiny.

15


Parenthetically, a number of courts considering the constitutionality of comparable state marriage laws, underpinned by state
interests not dissimilar to those forwarded here, have concluded that those laws cannot withstand even rational-basis review. See,
e.g., Geiger, 2014 U.S. Dist. LEXIS 68171; DeBoer, 2014 U.S. Dist. LEXIS 37274, at *33; Bourke, 2014 U.S. Dist. LEXIS 17457,
at *32; Bishop, 962 F.Supp.2d at 1295; Kitchen, 961 F.Supp.2d at 1206.




End of Document

© 2014 Thomson Reuters. No claim to original U.S. Government Works.




Appellate Case: 13-4178 Document: 01019253427 Date Filed: 05/21/2014 Page: 27

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