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DISTRICT COURT, ADAMS COUNTY,

COLORADO

Adams County Justice Center
1100 Judicial Center Drive
Brighton, CO 80601

REBECCA BRINKMAN AND MARGARET BURD,
et al.

Plaintiffs,

v.

KAREN LONG, in her official capacity as Clerk
and Record of Adams County, et al.,

Defendants. COURT USE ONLY
JOHN W. SUTHERS, Attorney General
DANIEL D. DOMENICO, Solicitor General*
MICHAEL FRANCISCO, Assistant Solicitor
General*
KATHRYN A. STARNELLA, Assistant Attorney
General*
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, CO 80203
Telephone: 720.508.6551
Email: dan.domenico@state.co.us;
michael.francisco@state.co.us;
kathryn.starnella@state.co.us
Registration Numbers: #32083, #39111, #43619
*Counsel of Record
Case No. 13CV032572
(Consolidated with 14cv30731,
Denver)

Div.: C




STATE OF COLORADO'S COMBINED RESPONSE TO THE ADAMS AND
DENVER PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS
ARGUMENT ............................................................................................. 7
I. Neither Windsor nor Romer mandates invalidation of
Colorados laws. ................................................................................ 7
A. Colorado has not deprived Plaintiffs of any rights or
protections that they previously had under Colorado or
federal law. ..................................................................................... 9
B. Colorado does not deprive same sex couples of their right to
travel. ............................................................................................ 10
C. Rational basis review comports with Windsor. ........................... 12
1. Sexual orientation is not a suspect class. ............................. 12
2. Colorados marriage laws do not discriminate based on
gender. ................................................................................... 17
3. Plaintiffs separate but equal argument fails as a
legal matter ........................................................................... 18
II. Colorados definition of marriage satisfies the applicable
rational basis standards of review. ................................................ 19
A. Colorados definition of marriage supports conceivable and
legitimate state ends. ................................................................... 19
B. Colorados one-man, one-woman definition of marriage
combats the harmful situation where children are born into
this world, but not raised by their biological parents. ................ 24
III. Colorados government marriage does not violate due
process. ........................................................................................... 26
A. This Court cannot ignore the Washington v. Glucksberg
tests. .............................................................................................. 26
B. Plaintiffs broadly asserted right to marry anyone you
choose is limitless. ....................................................................... 28

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C. Platitudes about the importance of marriage in society do
not require courts to constitutionally compel the State to
extend government marriage to anyone and everyone. .............. 31



iv
TABLE OF AUTHORITIES
CASES
Baker v. Nelson, 181 N.W.2d 185 (Minn. 1971) ..................................... 21
Baker v. Nelson, 409 U.S. 810 (1972) ..................................................... 31
Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D.
Okla. 2014) ........................................................................................... 17
Brown v. Board of Education, 347 U.S. 483 (1954) ................................ 18
De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014) ......................... 5
Dunn v. Blumstein, 405 U.S. 330, 342 (1972) ........................................ 11
Evans v. Romer, 854 P.2d 1270 (Colo. 1993) ............................................ 8
Evans v. Romer, 882 P.2d 1335 (Colo. 1994) ............................................ 8
Fed. Commcns Commn v. Beach Commcns, Inc. 508 U.S. 307
(1993) .................................................................................................... 19
Geiger v. Kitzhaber, --- F. Supp. 2d ----, 2014 WL 2054264 (D. Or.
May 19, 2014) ................................................................................... 7, 17
Hernandez v. Robles, 855 N.E. 2d 1 (N.Y. 2006) .................................... 21
Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) . 17, 19, 21
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) ................... 5, 8
Latta v. Otter, ---F. Supp. 2d ---- 2014 WL 1909999 (D. Idaho May
13, 2014) ......................................................................................... 16, 17
Lawrence v. Texas, 539 U.S. 558 (2003) ........................................... 13, 21
Loving v. Virginia, 388 U.S. 1 (1967) ...................................................... 31
McGowan v. Maryland, 366 U.S. 420 (1961) .......................................... 16
Nevada v. Hall, 440 U.S. 410 (1979) ................................................... 9, 12
Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass.
2004) ....................................................................................................... 1
People v. Lucero, 747 P.2d 660 (Colo. 1987) ........................................... 29

v
Plessy v. Ferguson, 163 U.S. 537 (1896) ................................................. 18
Romer v. Evans, 517 U.S. 620 (1996) ................................................. 8, 13
Saenz v. Roe, 526 U.S. 489, 500-03 (1999) .............................................. 11
Schuette v. Coalition to Defend Affirmative Action, No. 12-682,
slip op. (2014) ......................................................................................... 6
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) ........................ 17
Shapiro v. Thompson, 394 U.S. 618 (1969) ............................................. 11
Smithkline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir.
2014) ..................................................................................................... 15
Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001) ........................................ 13
United States v. Ramirez, 86 F. Appx 384 (10th Cir. 2004) .................. 10
United States v. Windsor, 133 S Ct. 2675 (2013) ................................. 1, 8
Washington v. Glucksberg, 521 U.S. 702 (1997) .............................. 26, 27
Whitewood v. Wolf, No. 13-cv-1861, slip op. at 22 (M.D. Pa. May
20, 2014) ............................................................................................... 16
Wright v. Arkansas, No. 60CV-13-2662 (Ark. May 9, 2014) .................. 16
STATUTES
C.R.S. 14-2-104(1) ................................................................................... 5
C.R.S. 14-15-102; 24-34-601 ........................................................... 4, 18
Section 2 of DOMA, 28 U.S.C. 1738C ................................................... 10
OTHER AUTHORITIES
3A Am. Jur. 2d Aliens and Citizens 345, 350 (2014) ........................... 9
Andrew J. Cherlin, The Deinstitutionalization of American
Marriage, 66 J. Marriage & Fam. 848, 848, 850, 853, 858 (2004) ...... 23
Divorce rates by State: 1990, 1995, and 1999-2011,Centers for
Disease Control and Prevention .......................................................... 24
Joanna L. Grossman, Resurrecting Comity: Revisiting the

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Problem of Non-Uniform Marriage Laws, 84 Or. L. Rev. 433,
443 (2005) ............................................................................................. 29
Restatement (Second) of Conflict of Laws 283 cmts j and k (2014) ...... 9
Sarah Primrose, The Decline of Common Law Marriage & the
Unrecognized Cultural Effect, 34 Whittier L. Rev. 187 (Winter
2013) ..................................................................................................... 29
Vivian E. Hamilton, The Age of Marital Capacity: Reconsidering
Civil Recognition of Adolescent Marriage, 92 B.U.L. Rev. 1817
(Dec. 2012) ............................................................................................ 30






INTRODUCTION

This case is not about same-sex couples right to adopt or raise children or
their fitness as parents. Although the myriad of court decisions have broadened the
same-sex marriage debate to include adoption and parental-fitness, this case is not
about those tangential issues. Moreover, Colorados Civil Union laws have mollified
the debate on those issues.
This case is about marriage as a government institution versus marriage as a
personal or religious institution. Indeed, it has not gone unnoticed that the secular,
legal institution of marriage, or government marriage, has gradually come to mean
something very different from its original religious counterpart[.] Opinions of the
Justices to the Senate, 802 N.E.2d 565, 579 (Mass. 2004) (Sosman, J., dissenting);
see also United States v. Windsor, 133 S Ct. 2675, 2718 (2013) (discussing
differences between traditional or conjugal views of marriage and consent-
based views of marriage). (Alito & Thomas, JJ dissenting). Nevertheless, despite
the fact that government marriage has diverged from its religious counterpart, one
thing holds true: marriage remains a matter within the States sovereign power to
regulate and, consequently, the states may and do limit who may marry who
based on a variety of factors.
Plaintiffs motions for summary judgment crystallize their position as follows:
the only legitimate purpose of marriage is to recognize individuals committed love

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to one another; Colorados one-man, one-woman definition of marriage precludes
same-sex couples from obtaining certain benefits under federal law; and Colorados
relegation of same-sex couples to civil union-status perpetuates discrimination and
confusion among same sex couples family members, friends, and employers, as well
as strangers with whom same sex couples interact. See, e.g., Denver Plaintiffs
Motion for Summary Judgment (MSJ) at 3, 10, 41. Tellingly, the Denver Plaintiffs
refer to Colorados non-recognition of same-sex marriage as a Celebration Ban,
which underscores Plaintiffs adult-centric view of marriage. Denver Plaintiffs MSJ,
at 1.
Plaintiffs adult-centric view of marriage is manifested by the tangible harms
that purportedly result directly from Colorados definition of marriage:
Unmarried Plaintiffs inability to jointly file state and federal tax
returns;
Inability to enjoy over 1,100 federal rights implicated by marital
status, including:
o Certain tax treatment the Internal Revenue Service reserves for
married couples;
o The U.S. Department of States determination of spousal
eligibility for immigration purposes;
o Receipt of spousal employee benefits offered by the Office of
Personnel Management, the Department of Defense, the
Department of Labors Wage and Hour Division, and the
Department of Veterans Affairs;
o Rights of a widow(er) under the Copyright Act; and
o Access to social security benefits that are available to spouses;
Incurred legal expenses for estate planning, preparation of medical
directives, ensuring legal protections for their parental status,
changing their last name to match that of their partner; and


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Greater federal and state tax burdens than if they were able to file as a
married couple.


See Ex. B to Denver Plaintiffs MSJ, at 27(d), 58(a), 62, 86-92; see also Denver
Plaintiffs MSJ at 6. The message is unmistakable: Plaintiffs complain of certain
tangible benefits, which they are purportedly denied because of Colorados law.
None of these benefits, however, concern benefits of which their children are
deprived. Further, the denial of federal benefits is a matter of federal not state
law. Finally, costs associated with estate planning, preparation of medical
directives, ensuring legal protections for parental status, and changing ones last
name are neither unique to civil unions nor necessarily obviated by the States
recognition of same-sex marriages.
Additionally not at issue in this case, Plaintiffs contend that Colorados non-
recognition of same-sex marriage perpetuates confusion, misunderstanding,
discrimination, ridicule, derision, (sub-)conscious slights, and prejudice among
family members, friends, co-workers, employers, and other persons whom they
encounter. See, e.g., Denver Plaintiffs Exs. B-1, at 21-27 and Ex. B-8, at 24-
26 (articulating some family members personal disdain for same-sex marriage or
same-sex relationships, family members, co-employees, and employers derogatory
comments about gays and lesbians, peoples confusion about the familial constructs
resulting from a same-sex marriage, and peoples inability to equate same-sex

4
marriages or relationships to opposite-sex marriages or relationships). Plaintiffs
further complain about peoples ignorance about civil unions and the fact that they
have to explain to people why we do not want to get a civil union or why civil
unions are not enough. Id. at 28-29; Ex. B-2, at 6, 41; Ex B-3, 16 (stating
that Plaintiffs feel hurt that [they] both have to explain [their] relationship and its
status to others). Finally, Plaintiffs complain that their inability to marry under
Colorado law has rendered them ineligible for certain family discounts, including
married auto insurance discounts and family memberships at the gym. Ex. B-7, at
23.
Peoples confusion, misunderstanding, and human nature, however, cannot
be regulated; recognition of same-sex marriage by popular vote, legislation, or court
decree will not solve those problems. (i.e some people may be confused or
uncomfortable with two moms or two dads, regardless of a government marriage
certificate being issued). Surely, the State can and does protect against sexual
orientation-based discrimination in its public accommodation laws, and persons
who discriminate could be prosecuted. See C.R.S. 14-15-102 (Civil Union Act); 24-
34-601. Legislation or court decree, however, will not magically change peoples
minds. Organic, considered, patient, deliberate debate and discourse, however, will.
Indeed, in just eight years since Coloradans voted to amend their state constitution
and fourteen years since the General Assembly amended the Uniform Marriage Act,

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C.R.S. 14-2-104(1), Coloradans views on same-sex marriage have changed
markedly, with a majority of polled voters now in favor of same-sex marriage by a
61-33 percent margin. See Ex. 8 to States MSJ. Moreover, unlike some states whose
bans or non-recognition of same-sex marriage have been stricken (e.g., Texas,
Utah)
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, Colorado has not foreclosed the possibility for further public debate and
reform. Unlike some other states, no Colorado statute or constitutional provision
expressly bars the State and any political subdivision thereof from creating or
recognizing any legal status identical to or similar to marriage.
With the growing number of lower court decisions that have struck other
states laws that either ban or do not recognize same-sex marriage, a temptation to
simply declare Colorados marriage laws unconstitutional may exist. Any such
temptation, however, should be tempered with the legal analysis required to declare
Colorados marriage laws unconstitutional. Consider that the United States
Supreme Court has had at least three opportunities to declare either that sexual
orientation is a suspect classification, or that same-sex marriage is a fundamental
right, or both, and it expressly did not. Courts are not arbiters of moral and political

1
See De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014) (describing
constitutional provision that was amended to expressly bar any future creation or
recognition of same-sex marriages, civil unions, or the like); Kitchen v. Herbert, 961
F. Supp. 2d 1181, 1191 (D. Utah 2013) (describing statutory provision that
prohibited the state from recognize[ing], enforc[ing], or giv[ing] legal effect to any
law creating any legal status, rights, benefits, or duties that are substantially
equivalent to those provided under Utah law to a married man and woman).

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debates, which this case presents, and the United States Supreme Court embodies
that principle in its consistent exercise of judicial restraint despite its members
own moral code or reluctance to maintain the status quo. See Schuette v. Coalition
to Defend Affirmative Action, No. 12-682, slip op. at 16-17 (2014) (Kennedy, J.)
(cautioning that courts impede the democratic process by issuing decrees based on
the proposition that the public lacks the ability to debate and resolve certain
issues).
Before this Court wades into the moral and political debate inherent in this
lawsuit, consider the following: Can a rational person believe that redefining
marriage, so as to belittle it to no more than a status symbol or a congratulatory
certificate, could damage the institutions longstanding and disputed role in helping
to encourage heterosexual couples to stay together to raise the children they create:
The guideposts to resolving this question are as follows: no Supreme Court
precedent mandates invalidation, rational basis review comports with Supreme
Court precedent, Colorados laws serve to persuade fathers and mothers to remain
committed to the children they produce, and the Supreme Court exercises great
caution in expanding the universe of fundamental rights in deference to societys
resolution of issues through political discourse and debate.
Yes, a rational person can believe that redefining marriage could damage the
longstanding institution of government marriage.

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ARGUMENT
I. Neither Windsor nor Romer mandates invalidation of
Colorados laws.
Like the myriad of court decisions that have overturned states non-
recognition of same-sex marriage, Plaintiffs heavily rely on isolated portions of the
Supreme Courts Defense of Marriage Act (DOMA) decision in United States v.
Windsor to support their argument that Colorados laws are designed to deprive
same sex couples full protection and benefit of the law and of social recognition,
treat [same-sex couples] relationships as second-class, second-tier, and unworthy
of recognition, and serve to injure, stigmatize, demean, and degrade same sex
couples. Denver Plaintiffs MSJ at 9 (internal quotations and modifications
omitted). This overwhelming reliance on isolated portions of the Supreme Courts
Windsor decision, however, must be reviewed with abundant objectivity and
circumspection.
As the District of Oregon aptly noted in its May 19, 2014 decision concerning
Oregons non-recognition of same-sex marriage, challenges to states marriage laws
are not reproductions of Windsor and are distinguishable from Windsor in a number
of important respects, including that Windsor concerned a federal act that
interfered with state authority to define marriage and adapt its terms to societal
needs and consensus. See Geiger v. Kitzhaber, F. Supp. 2d, 2014 WL 2054264 at *6

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(D. Or. May 19, 2014). Moreover, unlike this and other challenges to states laws,
DOMA amounted to unprecedented governmental overreach in stripping away
rights and protections that the people of New York State democratically chose to
grant to same-sex couples in that state. See Windsor, 133 S Ct. 2675, 2693-94
(2013); see also id. at 2694-95 (noting that DOMAs principle effect is to identify a
subset of state-sanctioned marriages and make them unequal.).
Plaintiffs reliance on the Romer-line of cases, Evans v. Romer, 854 P.2d 1270
(Colo. 1993), Evans v. Romer, 882 P.2d 1335 (Colo. 1994), and Romer v. Evans, 517
U.S. 620 (1996), which invalidated Amendment 2 to Colorados Constitution, also
fails to justify application of strict scrutiny review. See Adams Plaintiffs MSJ at 9-
10, 24-28; see also Denver Plaintiffs MSJ at 10, 28. Unlike Amendment 2,
Colorados constitutional and statutory amendments, which limit marriage to one
man and one woman, do not strip homosexuals of any legal protections they
previously possessed under Colorado law and do not prevent any homosexual,
including any of the plaintiffs, from petitioning to change Colorados laws. In this
regard, too, Colorados laws are distinguishable from the marriage laws of states
such as Utah and Texas, which barred any future creation or recognition of same-
sex marriages, civil unions, or other formalized same-sex relationships. Cf. Kitchen
v. Herbert, 961 F. Supp. 2d 1181, 1209 (D. Utah 2013) (analogizing Utahs
constitutional amendment to DOMA and Colorados Amendment 2 because the

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amendment went beyond denying the right to marriage and declared that no
domestic union could be given the same or substantially equivalent legal effect as
marriage).

A. Colorado has not deprived Plaintiffs of any rights or
protections that they previously had under Colorado or
federal law.
This case is about Coloradans decision not to expand the definition of
marriage. Although Plaintiffs complain that Colorados non-recognition of same-sex
marriages strips them of rights and protections that Plaintiffs were extended under
other states laws, Colorado has no obligation to recognize marriages that contradict
its strong policy interests. See, e.g., RESTATEMENT (SECOND) OF CONFLICT OF LAWS
283 cmts j and k (2014) (articulating principle that marriages entered into in one
state will generally be held valid in another state unless it contradicts the strong
policy of another state); 3A AM. JUR. 2D Aliens and Citizens 345, 350 (2014)
(discussing scenarios under which validly entered foreign marriages may be invalid
under state law requirements); see also Nevada v. Hall, 440 U.S. 410, 422 (1979)
(stating that the full faith and credit clause does not require one state to substitute
for its own statute, applicable to persons and events within it, the conflicting
statute of another state[.]); id. at 423-34 (stating that the full faith and credit
clause does not here enable one state to legislate for the other or to project its laws

10
across state lines[.]); United States v. Ramirez, 86 F. Appx 384, 385 (10th Cir.
2004) (finding no violation of the full faith and credit clause arising from Utahs
enforcement of its window tinting laws against a Coloradan motorist and no
requirement that Utah apply Colorados window tinting laws); Section 2 of DOMA,
28 U.S.C. 1738C
2
(stating, [n]o State . . . shall be required to give effect to any
public act, record, or judicial proceeding of any other State . . . respecting a
relationship between persons of the same sex that is treated as a marriage under
the laws of such other State . . . or a right or claim arising from such relationship.).

B. Colorado does not deprive same sex couples of their
right to travel.
The Married Plaintiffs right to travel argument does not avail them of a
right to enter into same-sex marriage under Colorado law
3
. First, the right to travel
concerns at least three different components: (1) the right of a citizen of one state to
enter and leave another state; (2) the right to be treated as a welcome visitor rather
than an unfriendly alien when temporarily present in the second State; and (3) a
newly-arrived citizens right to the same privileges and immunities enjoyed by other

2
This section of DOMA was not challenged in Windsor. See 133 S. Ct. at 2682-83.
3
The roots of Plaintiffs asserted right to travel have eluded the courts and been
variously assigned to the United States Constitutions Privileges and Immunities
Clause of Article IV, Section 2, the Commerce Clause, and the Privileges and
Immunities Clause of the Fourteenth Amendment. See Atty Gen. of New York v.
Soto-Lopez, 476 U.S. 898, 902 (1986).

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citizens of the same state. See Saenz v. Roe, 526 U.S. 489, 500-03 (1999). Colorado,
however, does not restrict any same-sex couples ability to travel to Colorado from
out-of-state. Likewise, Plaintiffs do not allege that Colorado treats any visiting
same-sex couples as unfriendly aliens. Although some Coloradans might treat
visiting same-sex couples as unfriendly aliens, as a matter of state policy, Colorado
does not sanction or condone this behavior. Moreover, as already stated, persons
engaging in discriminatory conduct could face prosecution.
Second, right-to-travel claims generally arise from one of two scenarios: (a)
statutes that treat residents and non-residents or long-term and short-term
residents differently; and (b) laws that seek to impede travel as a primary objective,
with a majority of cases concerning the former category, as opposed to the latter.
See, e.g., Dunn v. Blumstein, 405 U.S. 330, 342 (1972) (discussing
unconstitutionality of Tennessees durational residency requirement because it
imposed prohibitions on the right to vote on only those persons who have recently
exercised the right to travel); Shapiro v. Thompson, 394 U.S. 618, 631-34 (1969)
(discussing unconstitutionality of Connecticuts durational residency requirements
for welfare benefits). In sum, right to travel claims generally concern penalties that
are incurred for the exercise of the right to travel.
Here, Colorados marriage recognition laws do not distinguish between
residents and non-residents; rather, Colorados laws distinguish between same-sex

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and opposite-sex couples. Put another way, Colorado law does not, on the one hand,
recognize same-sex marriages of Colorado couples, but, on the other hand, not
recognize same-sex marriages of visiting or recently relocated couples. Simply,
Colorado does not recognize any same-sex marriages, irrespective of whether the
couple has resided in Colorado long- or short-term, or whether the couple is only
visiting. Conversely, with a few policy-based statutory exceptions,
4
Colorado
generally recognizes any opposite-sex marriage, irrespective of the residency or
visiting status in Colorado. As the Supreme Court recognized in Hall, in this
Nation, each sovereign governs only with the consent of the governed, and, unless a
sovereigns laws are patently unconstitutional, its chosen system of laws is equally
entitled to our respect, even though another State may have adopted a different
system. 440 U.S. at 426.

C. Rational basis review comports with Windsor.
1. Sexual orientation is not a suspect class.
The Adams and Denver County Plaintiffs argue that rational basis does not
apply to this case because, they contend, that Supreme Court precedent requires
application of heightened scrutiny to classifications that discriminate on the basis of

4
See, e.g., C.R.S. 14-2-109.5(2) (identifying criteria for recognition of out-of-of-
state common law marriages; 14-2-110 (identifying categories of prohibited
marriages).

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sexual orientation. See Denver Plaintiffs MSJ at 15-16 (listing the four criteria that
the Supreme Court identified to determine whether a group of persons qualifies as a
suspect or semi-suspect class entitled to heightened scrutiny); Adams Plaintiffs
MSJ at 55 (same). Contrary to Plaintiffs assertions, however, the Supreme Court
has never concluded that sexual orientation constitutes a quasi-suspect or suspect
class, which justifies a level of scrutiny higher than rational basis. Time and time
again, the Supreme Court has declined to deem sexual orientation a quasi-suspect
class: in Romer v. Evans, Lawrence v. Texas, and most recently, in United States v.
Windsor.
Under rational basis review, the means need only be rationally related to a
conceivable and legitimate state end, whereas, under heightened scrutiny, the
discriminatory means must be substantially related to an actual and important
governmental interest. Tuan Anh Nguyen v. INS, 533 U.S. 53, 77 (2001). In
Windsor, the Court found no relation between DOMAs unprecedented interference
with the states sovereign authority to regulate marriages and a conceivable and
legitimate interest of the federal government the Supreme Court could find no
conceivable legitimate federal government interest. Specifically, writing for the
majority, Justice Kennedy expressed grave concerns with the federal governments
creation of two contradictory marriage regimes within a state that recognized
same-sex marriages because:


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DOMAs stated purpose was to dictate morality and policy on an area
(marriage)
5
that expressly falls within States sovereign authority to
dictate and regulate
6
;

After considerable debate and discourse
7
, the people of New York
State decided for themselves (as opposed to people of other states) to
acknowledge and protect same-sex relationships via the institution of
marriage
8
; and

DOMA interfered with the will of New York States people by creating
two contradictory regimes within New York State: New York State
same-sex couples who were married under state law, and the same
same-sex couples who were not married under federal law.
9


In sum, because the federal government has no business regulating marriage
and its interference with New York States sovereign authority was intended to
impose the federal governments morality upon the people of each of the United
States and to rob certain citizens of the rights that their chosen state gave them,
Section 3 of DOMA smacked of lacking any rational basis. See id. at 2695 (noting
that, although Congress has great authority to design laws to fit its own conception

5
133 S. Ct. at 2693 (The stated purpose of the law was to promote an interest in
protecting the traditional moral teachings reflected in heterosexual-only marriage
laws.) (internal quotations omitted).
6
Id. at 2692 (noting that New York States decision to recognize same-sex
marriages was a proper exercise of its sovereign authority within our federal
system, all in the way that the Framers of the Constitution intended.).
7
Id. at 2689 (acknowledging the statewide deliberative process that enabled [New
York States] citizens to discuss and weigh arguments for and against same-sex
marriage).
8
Id. (stating, New York acted to enlarge the definition of marriage to address New
York State citizens and elected representatives perceived inadequacies in New
Yorks law).
9
Id. at 2694 (discussing the two contradictory regimes).

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of sound national policy, it cannot deny the people of these United States the
liberties that their chosen states have lawfully given them).
Plaintiffs incorrectly rely on the Ninth Circuit Court of Appeals
interpretation of the Supreme Courts Windsor decision for the proposition that
distinctions based on sexual orientation mandate heightened scrutiny. See Adams
Plaintiffs MSJ at 61 (citing Smithkline Beecham Corp. v. Abbott Labs., 740 F.3d
471, 484 (9th Cir. 2014)))
10
. In its analysis of Windsor, the Ninth Circuit summarily
concluded and broadly reasoned that the Supreme Court applied heightened
scrutiny because:
(a) The Supreme Court was concerned with the public message sent by
DOMA about the status occupied by gays and lesbians in our society because
DOMA [told] those couples, and all the world, that their otherwise valid marriages
are unworthy of federal recognition; and
(b) The decision lacked the traditional hallmarks of rational basis review,
namely references to the strong presumption in favor of constitutionality and the
extremely deferential posture toward government action.

740 F.3d at 482-83 (emphasis added). Notably, however, the Ninth Circuit
overlooked an important aspect of the Supreme Courts decision: the New York

10
The Ninth Circuit panel has since issued an order, sua sponte, directing further
briefing on whether the case should be reconsidered en banc; briefing is pending.

16
State same-sex couples marriages were otherwise valid until DOMA invalidated
those marriages because New York State law recognized and validated same-sex
marriages. Had New York State law not recognized and validated same-sex
marriages, those marriages would not have been otherwise valid they would not
have been valid at all.
Additionally, the Ninth Circuit overlooked why the Supreme Court declined
to defer to and presume the legitimacy of Congresss legislative decision: Congress
had no business regulating a matter (i.e., marriage) that uniquely fell within states
sovereign authority to regulate. Because Congress had no business interfering with
states marital policies and laws, and its legislative decision lacked any valid
precedent, the Supreme Court could not defer to or presume the legitimacy of
Congresss decision to enact DOMA.
11
Put another way, no state of facts reasonably
[could] be conceived to justify
12
Congresss invalidation of a category of marriages
deemed valid under New York State law. In sum, DOMAs patent invalidity

11
Since Windsor, several courts have overlooked this key aspect of the Supreme
Courts decision, i.e., Congresss unprecedented interference with states marriage
laws, to broadly construe and misapply Windsors precedential effect. See, e.g.,
Whitewood v. Wolf, No. 13-cv-1861, slip op. at 22 (M.D. Pa. May 20, 2014)
(misapplying Windsor for the proposition that one jurisdictions refusal to recognize
another jurisdictions family relationships is unconstitutional); Latta v. Otter, ---F.
Supp. 2d ---- 2014 WL 1909999, at *16-18 (D. Idaho May 13, 2014) (relying on Ninth
Circuits non-nuanced interpretation of Windsor); Wright v. Arkansas, No. 60CV-13-
2662 (Ark. May 9, 2014).
12
McGowan v. Maryland, 366 U.S. 420, 426 (1961) (stating that a law that imposes
classifications must be upheld under rational basis review if any state of facts
reasonably may be conceived to justify it).

17
rendered any judicial deference impossible. Accordingly, the Supreme Courts
rejection of rational basis review to sexual orientation-based distinctions is not
apparent from its analysis. Cf. Windsor, 133 S. Ct. at 2706-07 (Roberts, C.J.,
dissenting) (stating, [a]s nearly as I can tell, the Court agrees [that rational basis
review applies to sexual orientation-based classification]; its opinion does not apply
strict scrutiny, and its central propositions are taken from rational basis cases).
2. Colorados marriage laws do not discriminate based
on gender.
Plaintiffs wrongly assert that Colorados marriage laws discriminate on the
basis of gender because they turn [ ] on the gender of the individual one wishes to
marry[.] See Denver Plaintiffs MSJ at 20.
Courts have consistently rejected gender discrimination claims premised on
states non-recognition of same-sex marriage. As the District of Oregon recently
reasoned in its consideration of Oregons non-recognition of same-sex marriage,
laws that limit marriage to one man and one woman do not discriminate based on
gender because all men and all women are prohibited from doing the exact same
thing: marrying an individual of the same gender; the law does not target any one
gender. Geiger 2014 WL 2054264 at *13; see also Latta v. Otter, ---F.Supp. 2d----
2014 WL1909999, at *15 (D.Idaho May 13, 2014 Bishop v. United States ex rel.
Holder, 962 F. Supp. 2d 1252, 1286-87 (N.D. Okla. 2014); Jackson v. Abercrombie,
884 F. Supp. 2d 1065, 1098-99 (D. Haw. 2012) (collecting cases); Sevcik v. Sandoval,

18
911 F. Supp. 2d 996, 1005 (D. Nev. 2012) (rejecting gender discrimination claim
arising from Nevadas definition of marriage).
Like other states marriage laws, Colorados government marriage applies
equally to men and women; Colorados non-recognition of same-sex marriages
applies equally to marriages between two men or two women. Accordingly,
Plaintiffs gender discrimination claim should be rejected.
3. Plaintiffs separate but equal argument fails as a
legal matter
Plaintiffs equate their plight to slaves and other people forced by law to live
separately during periods in our Nations history and complain that Colorados Civil
Union Act amounts to an unconstitutional separate but equal regime. See Adams
Plaintiffs MSJ at 3-4, 44, 79-84; Denver Plaintiffs MSJ at 42-44. Though these are
powerful political arguments, Plaintiffs reliance on the separate but equal
doctrine and the Brown v. Board of Education
13
and Plessy v. Ferguson
14
-line of
cases, however is unavailing. As already noted, the Supreme Court has had ample
opportunity to mandate that States treat same-sex and opposite-sex couples
identically, as a matter of constitutional law, but it has not done so.
Moreover, unlike the Jim Crow laws and segregated school systems,
Colorados Civil Union Act was enacted not to perpetuate discrimination but to

13
347 U.S. 483 (1954)
14
163 U.S. 537 (1896)

19
afford same-sex couples rights they hand not previously had. Jackson v.
Abercrombie, 884 F. Supp. 2d 1065, 1107-11 (D. Haw. 2012) (rejecting the same-sex
couple plaintiffs separate but equal argument based on Hawaiis civil union law).


II. Colorados definition of marriage satisfies the applicable
rational basis standards of review.
The opening motions for summary judgment show a surprising amount of
agreement on the rational basis question. The State of Colorado has shown there
are several plausible rational bases for its marriage laws. Again, it must be
stressed, rational basis review does not require the Court (or Plaintiffs) to agree
with the rational basis arguments that support Colorados marriage laws. See, e.g.,
Fed. Commcns Commn v. Beach Commcns, Inc. 508 U.S. 307, 315 (1993) (rational
basis may be based on speculation unsupported by evidence or empirical data.).

A. Colorados definition of marriage supports conceivable
and legitimate state ends.
Marriage as a governmental institution is rationally related to the states
interest in persuading fathers and mothers to remain committed to the children
they produce. The state has an interest in maximizing the number of children that
are raised by their biological parents. Critically, the Plaintiffs agree this state

20
interest is legitimate. As the Denver Plaintiffs stated:
There is little doubt that encouraging optimal conditions for
children is a compelling and legitimate governmental interest.
Denver Plaintiffs. MSJ at 25.
Nowhere in the hundred plus pages of summary judgment briefing do any of
the plaintiffs argue that the state should not encourage couples who produce
children to remain together and raise their kids to adulthood. This concession goes a
long way in proving that Colorados marriage laws must be upheld under rational
basis review.
Compelled to concede the validity of this state interest, Plaintiffs try to
persuade this court that Colorados marriage laws have no actual or plausible
connection to serving this interest. The Plaintiffs arguments can be grouped into
three claims:
1. Some lower court judges of late have asserted that marriage laws are not
related to maximizing responsible biological parents.

2. Colorado encourages same-sex couples to adopt children and gives
parental rights to spouses in a civil union.

3. There is no empirical evidence showing that experimentation with
marriage laws will reduce the number of responsible biological parents.
These claims fall well short of proving that no person could possibly, rationally,
believe that the traditional definition of marriage has a positive role in dealing with
the constant stream of children being born. The Plaintiffs arguments do not stand

21
up to scrutiny.
First that some lower courts have recently ruled one way proves little. The
parade of recent lower court cases represents merely one side of the debate. Other
judges have opined otherwise, including appellate courts, courts of last resort, and
numerous Supreme Court Justices. See Jackson v. Abercrombie,; Hernandez v.
Robles, 855 N.E. 2d 1 (N.Y. 2006); Baker v. Nelson, 181 N.W.2d 185 (Minn. 1971);
Lawrence v. Texas, 539 U.S. 558, 585 (2003) (OConnor, J., concurring) (describing
preserving the traditional institution of marriage as a legitimate state interest);
Windsor, 133 S. Ct. at 2716 (Alito, J., dissenting) (At present, no one including
social scientists, philosophers, and historians can predict with any certainty what
the long-term ramifications of widespread acceptance of same-sex marriage will be.
And judges are certainly not equipped to make such an assessment.).
Are these jurists so misguided and mal-reasoned that we should deny their
analysis the dignity of being part of this debate about the role of government
marriage in modern society? Plaintiffs are, in essence, asking this court to ignore
half of the debate and declare a victory by default.
The echo-chamber of cases coming after Windsor all share the same flaw of
misreading the Supreme Courts Windsor opinion and, often, engaging in taking
sides in the moral and social debate about marriage that has little to do with the
relevant constitutional claims. Reading one is akin to reading them all. Indeed, the

22
diligent supplemental filings in this case highlight the lack of substantive legal
analysis exhibited in any given new case. Should this Court rule any particular way
because the number of recent cases is 15, or 16, or even 18? These cases ought not
be treated as a lodestar to judge Colorados marriage laws. As just one example, the
majority of these cases arise from jurisdictions where the states have not allowed
same-sex couples to adopt children. The analysis of these states rules cannot be
treated as coextensive with an independent constitutional analysis of Colorados
marriage laws. This Court must come to its own conclusions.
Second Colorados decision to support same-sex couples through adoption
laws and civil unions is a virtue, not a vice. Colorado also allows single parents to
adopt kids. That fact relates to a different societal interest (providing for children
when biological parents are not available or have failed) and has nothing to do with
the interest served by government marriage. It is entirely reasonable to encourage
marriage as an institution to persuade as many biological parents as possible to
care for their own kids (Colorados position), while at the same time, having
separate institutions and laws to address different situations. Consider adoption
is not a replacement for marriage.
That the state has foster homes, divorce laws, and adoption does not
undermine the state interest supporting Colorados marriage laws. Same-sex
adoption and marriage are not mutually exclusive. Acknowledging the adequacy of

23
parenting situations other than a biological father and mother simply does not
diminish the reasonable intent to encourage, in general, biological parents to take
responsibility for their children.
Third Plaintiffs both make the claim that there is no empirical proof that
marriage laws encourage the state interest in maximizing parents responsibility for
their offspring. The Plaintiffs empirical arguments prove too much. Consider the
argument in the abstract. The State of Colorado (and many other states) is
concerned that radically changing the institution of marriage will diminish the
institution in society. If marriage is less attractive to opposite-sex couples by
becoming untethered from conceptions of responsible child rearing - then some
couples (not all), will forgo marriage. Many erudite experts on marriage have
argued as much for decades. States MSJ at 37-41 (citing authorities on institution
of marriage). Even experts who favor changing marriage laws in favor of same-sex
couples have recognized that the institution of marriage will be fundamentally
changed.
15



15
See, e.g., Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66
J. Marriage & Fam. 848, 848, 850, 853, 858 (2004) (explaining that weakening of
the social norms that define peoples behavior in marriage shifts the focus of
marriage from serving vital societal needs (including the needs of children) to
facilitating the personal fulfillment of individuals and could even culminate, in the
fading away of marriage, to the point that it becomes just one of many kinds of
interpersonal romantic relationships.)


24
Consider the argument empirically. Plaintiffs ask this Court to predict that
radically changing marriage will result in fewer opposite-sex couples getting
married. Massachusetts was the first state to be compelled to recognize same sex
marriage in 2004. The divorce rate has increased noticeably since that change was
degreed. See Divorce rates by State: 1990, 1995, and 1999-2011,Centers for Disease
Control and Prevention, available at
http://www.cdc.gov/nchs/data/dvs/divorce_rates_90_95_99-11.pdf. To be sure,
Colorado is not claiming that every change in the divorce rate can be proven to be
caused, 100%, by a change in the marriage laws. Plaintiffs, likewise, are hard-
pressed to disprove the states argument about the empirical data.
Plaintiffs no doubt disagree with the States argument. But disagreement is
not enough. Plaintiffs have the high bar of persuading this Court that these
respected authorities, including Justice Alito, are completely without reason. The
Court must declare these arguments to be worse than wrong they must be deemed
unworthy of debate.

B. Colorados one-man, one-woman definition of marriage
combats the harmful situation where children are born
into this world, but not raised by their biological
parents.
The message is that marriage is about children. Because many in society
view marriage as the proper context to have and raise children, they either get

25
married before procreating or shortly thereafter. In both cases, the government
institution of marriage serves a legitimate state interest. Plaintiffs motions for
summary judgment actually endorse the view that government marriage
certificates are part and parcel with a government message to society in general
about what marriage is about. No doubt, Plaintiffs want that message to be adult-
centric, focused on the emotions between spouses.
If government marriage is truly about love and commitment, then the
message communicated by the State will undermine the role of marriage as a
prophylactic for inevitable sexual relations between opposite-sex couples that are
naturally capable of producing children. Marriage as an institution based on
emotion will also communicate that marriages can be discarded later in time, due to
nothing more than the emotional whims of the parties to the marriage. The more
temporary marriage becomes, the less the State will be served by couples entering
into marriages.
Satisfying rational basis review does not require the State to win a debate
about what is the best or most-appealing law. The State need only show that people
of sound mind can plausibly take one side in the debate. This is a low bar. The State
has plain, rational reasons for its government institution of marriage.






26
III. Colorados government marriage does not violate due
process.
Both sets of Plaintiffs have confirmed that their substantive due process
argument is based on an expansive claim that all individuals have a right to marry
anyone one chooses. E.g. Denver Plaintiffs MSJ at 29 (Marriage is a fundamental
right to marry the person of your choosing.); Adams Plaintiffs MSJ at 28 (Right to
Marry the Person of Your Own Choosing is a Fundamental Right Guaranteed by
the Due Process Clause). This is not the law. If it were, none of the limits to
marriage could stand.

A. This Court cannot ignore the Washington v. Glucksberg
tests.
Embracing the broadest claim under substantive due process was only the
starting point. Plaintiffs found it necessary to eschew the Supreme Courts lodestar
for deciding substantive due process claims: Washington v. Glucksberg, 521 U.S. 702
(1997). A basic review of this seminal case answers all the relevant legal questions
about recognizing a new substantive due process right in this case.
In fact, Plaintiffs arguments bear a striking resemblance to the arguments
advanced in Glucksberg by the plaintiffs arguments soundly rejected by the
Supreme Court:


27
Argument Glucksberg This Case
Plaintiffs rely on a recent, factually similar
predicate case as support for broad fundamental.
521 U.S. at
708 (relying
on Cruzan v.
Dir. Missouri
Dept of
Health, 497
U.S. 261
(1990))
Denver Pltfs
MSJ at 8-13
(relying on
Windsor);
Adams Pltfs
MSJ at 36-39
(same)
Plaintiffs quote Casey v. Planned Parenthood for
broad liberty interest:
"At the heart of liberty is the right 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." Casey, 505 U.S. at 851.
521 U.S. at
726-27
Adams Pltfs
MSJ at 35
Plaintiffs argued the due process right at issue was
not new, but already existing.
521 U.S. at
723-24
Denver Pltfs
MSJ at n.4,
p.33; Adams
Pltfs MSJ at
40
States were engaged in serious thoughtful
examination of the issue.
521 U.S. at
719
Colorado
MSJ at 1
Defendants point to international experience with
challenged due process activity.
521 U.S. at
734
(Netherlands)
Colorado
MSJ at 37
(Netherlands)

The Plaintiffs have no answer to Glucksberg. They resort to demeaning the
opinion, in a footnote, as irrelevant, (Denver Plaintiffs MSJ at 33 n.4), or claiming
the argument from the 1997 case was thoroughly debunked by the 1967 case of
Loving v. Virginia (Adams Plaintiffs MSJ at 40). In fact, Glucksberg remains the
binding, definitive rule that this Court must determine if the claimed right is (1)
objectively, deeply rooted in this Nations history and tradition, and (2) the right is

28
carefully described. 521 U.S. at 720-21. Plaintiffs claims flunk both tests. None of
the Plaintiffs make a serious attempt to satisfy the required tests. This court must
apply the Glucksberg tests and, once it does so, the claims in this case fall short.

B. Plaintiffs broadly asserted right to marry anyone you
choose is limitless.
If the Fourteenth Amendment guarantees every citizen the right to marry
anyone one chooses, the core of each Plaintiffs argument in this case, then marriage
would be constitutionally transformed into a virtually unlimited institution. Such a
broad right cannot be reconciled with many historically rooted limits on marriage.
Drawing attention on their love and commitment to one another, all Plaintiffs in
this case argue that the Substantive Due Process right to marriage as a
fundamental right extends to couples who are loving and committed (regardless of
sexual orientation). See, e.g., Denver Plaintiffs MSJ at 1 (those free to marry the
person they love and those denied that fundamental right.); Adams Plaintiffs MSJ
at 2 (Plaintiffs are two well-established professionals who have lived together
continuously since 1986 in a loving, committed, and intimate relationship.).
Marriage, in Plaintiffs view, is about the level of love and commitment between the
spouses, not about procreation or children. If so for these plaintiffs, why not for
loving committed spouses in a polygamous or polyamorous relationship? Why not
for loving and committed minors or even close relatives? The Denver Plaintiffs do

29
not address these important line-drawing issues.
The Adams County Plaintiffs, however, offer a peculiar defense of these
existing marriage limits. They speculate that the state would have a compelling
government interest (presumably to satisfy strict scrutiny) to limit marriage by age,
familial relationship, or number. Adams Pltfs MSJ at 46. This speculation cannot
stand upon close examination. These existing limits on marriage have not been
scrutinized by courts under the strict scrutiny review that Plaintiffs claim applies to
the right to marry anyone of ones choosing. States have thus far been free to
regulate the institution of marriage for these individuals who may express love for
one another. Some states, including Colorado, have even created regulation for
common law marriage to cover situations where certain individuals can be treated
as married through a course of conduct. See, e.g., People v. Lucero, 747 P.2d 660, 663
(Colo. 1987) (describing common law marriage). The freedom of states to allow or
recognize common law marriage, see generally potential Sarah Primrose, The
Decline of Common Law Marriage & the Unrecognized Cultural Effect, 34 Whittier
L. Rev. 187, 190 (Winter 2013) (collecting and categorizing state laws recognizing
common law marriage), or first-cousin marriage, see generally Joanna L. Grossman,
Resurrecting Comity: Revisiting the Problem of Non-Uniform Marriage Laws, 84
Or. L. Rev. 433, 443 (2005) (collecting and categorizing state laws regarding
marriage of first cousins), or marriage between 17 year olds, see generally Vivian E.

30
Hamilton, The Age of Marital Capacity: Reconsidering Civil Recognition of
Adolescent Marriage, 92 B.U.L. Rev. 1817, 1832 (Dec. 2012) (collecting and
categorizing state laws regarding marital age restrictions), would be instantly
called into question by the radical right to marry anyone you choose as advanced by
these Plaintiffs.
Indeed, if marriage must be extended to anyone who shares love and
commitment, as Plaintiffs repeatedly argue, then any state limit on marriage would
be difficult to limit in the face of loving people living together. Thus far, states
(including Colorado) have not been forced to justify well-known, historic limits on
government marriage by proving that strict scrutiny could be satisfied. Categorical
line drawing for marriage would be virtually impossible under the strict scrutiny
analysis suggested by these Plaintiffs. (Consider how the traditional, categorical
exclusions from marriage eligibility would be attacked as not narrowly tailored to
proffered state interests.) A ruling in favor of these Plaintiffs on a broad theory of
Substantive Due Process would inevitably lead to constitutional attacks on other
line-drawing components of marriage (even of these Plaintiffs profess to agree with
those lines, at this time).




31
C. Platitudes about the importance of marriage in society
do not require courts to constitutionally compel the
State to extend government marriage to anyone and
everyone.

Marriage is undeniably viewed by most as a cherished, important societal
institution. The Supreme Courts decisions addressing marriage have reflected the
common view of marriage as important by offering broad statements about the role
of marriage in America. E.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (The freedom
to marry has long been recognized as one of the vital personal rights essential to the
orderly pursuit of happiness by free men.). This broad statement about the
importance of marriage, however, has never been a sufficient legal reason to strike
down marriage laws.
Plaintiffs here, and the parade of recent cases looking at state marriage laws,
make much of the judicial quotes recognizing the overall importance and value of
marriage. None of these statements, however, transforms marriage into a
mandatory-issue certificate the government must give to any people who desire the
affirmation. As evidence that these generic statements are dicta, consider the U.S.
Supreme Court decision in Baker v. Nelson, 409 U.S. 810 (1972), where the
plaintiffs claimed a fundamental right to marriage for same sex couples. The
fundamental right to marriage was denied for same-sex couples in that case, and
the decision remains binding on this Court. More importantly, the broad statements

32
about marriage from previous cases, such as Loving, were not sufficient for the
Supreme Court to extend the constitutional right to marriage to same-sex couples.
Just so here.



Respectfully submitted this 30th day of May, 2014.

JOHN W. SUTHERS
Attorney General


/s/ Michael L. Francisco
DANIEL D. DOMENICO, 32083*
Solicitor General
MICHAEL FRANCISCO, 39111*
Assistant Solicitor General
KATHRYN A. STARNELLA, 43619*
Assistant Attorney General
Attorneys for the State of Colorado
*Counsel of Record






CERTIFICATE OF SERVICE

I hereby certify that on May 30, 2014, I electronically filed the foregoing State
of Colorados Combined Response to the Adams and Denver Plaintiffs Motions for
Summary Judgment with the Integrated Colorado Courts E-Filing System (ICCES),
which will send notification of such filing to counsel of record.


/s/ Kathryn Starnella
Kathryn Starnella